THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Mailo v. Bae Fa Fishing Co.,
7 FSM Intrm. 83 (Chuuk 1995)

[7 FSM Intrm. 83]

EKIMWAR MAILO,
Plaintiff,

vs.

BAE FA FISHING CO., LTD.,
a fishing vessel named BAE FU 103
and TIEN WEN HSU,
Defendants.

CIVIL ACTION NO. 1994-1027

OPINION

Richard H. Benson
Associate Justice

Hearing:  January 12, 1995
Decided:  March 10, 1995

APPEARANCES:
For the Plaintiff:            Maketo Robert, Esq.
                                       P.O. Box 211
                                       Weno, Chuuk FM 96942

For the Defendants:     Kristina L. Baird, Esq.
                                       Klemm, Blair, Sterling & Johnson
                                       1008 Pacific News Building
                                       238 Archbishop F.C. Flores St.
                                       Agaa, Guam 96910

*    *    *    *

HEADNOTES
Civil Procedure ) Motions
     A party opposing a motion has ten days after service of the motion to file and serve responsive papers.  Six days are added to this period when the service was done by mail.  The court may at its discretion enlarge the time for filing for cause shown.  Where no reason is given for late filing and an enlargement of time is not sought, responsive papers will be stricken from the record as untimely.  Mailo v. Bae Fa Fishing Co., 7 FSM Intrm. 83, 84 (Chk. 1995).

Civil Procedure ) Summary Judgment
     Where the opposing party has not filed a timely response to a motion for summary judgment that party is deemed to have consented to the granting of the motion and the court may decline to hear oral argument.  Mailo v. Bae Fa Fishing Co., 7 FSM Intrm. 83, 85 n.1 (Chk. 1995).

[7 FSM Intrm. 84]

Civil Procedure ) Summary Judgment
     The series "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," found in Civil Rule 56 merely lists those items the court shall consider on a summary judgment motion if present in the file.  Not all of these items need to be present for a court to grant summary judgment.  Mailo v. Bae Fa Fishing Co., 7 FSM Intrm. 83, 85 (Chk. 1995).

Civil Procedure ) Motions
     A court may not grant a motion unless proper grounds to do so exist even though the nonmoving party has failed to timely oppose the motion and is deemed to have consented to it.  Mailo v. Bae Fa Fishing Co., 7 FSM Intrm. 83, 85 (Chk. 1995).

Civil Procedure ) Admissions
     If a party has not replied to a request for admissions within 30 days the matter therein is deemed admitted.  Matters admitted are conclusively established for the purposes of that proceeding.  Mailo v. Bae Fa Fishing Co., 7 FSM Intrm. 83, 85 (Chk. 1995).

Civil Procedure ) Admissions; Civil Procedure ) Summary Judgment
     Admissions obtained through a failure to respond to requests for admissions may be used as the factual basis for summary judgment.  Mailo v. Bae Fa Fishing Co., 7 FSM Intrm. 83, 85 (Chk. 1995).

Civil Procedure ) Admissions
     A court, on motion, may permit withdrawal or amendment of an admission when the presentation of the merits will be subserved thereby and the party who obtained the admission cannot satisfy the court that it will be prejudiced by the withdrawal or amendment.  In such a circumstance the court may impose other sanctions.  Mailo v. Bae Fa Fishing Co., 7 FSM Intrm. 83, 85-86 (Chk. 1995).

Civil Procedure ) Admissions; Civil Procedure ) Summary Judgment
     Although a motion to file a late response to the requests for admissions is considered a motion to amend or withdraw, an untimely response to a summary judgment motion cannot be deemed a motion to withdraw or amend.  Mailo v. Bae Fa Fishing Co., 7 FSM Intrm. 83, 86 (Chk. 1995).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This matter came before me on the defendants' Motion for Summary Judgment, and hearing was held on January 12, 1995.  Defendants' motion was served and filed by mail December 5, 1995.  Plaintiff filed his opposition on December 30, 1994.  Defendants filed their memorandum concerning non-opposition to their motion for summary judgment on January 6, 1995.

     Plaintiff's opposition shall be stricken as untimely filed.  A party opposing a motion has ten days after service of the motion to file and serve responsive papers. FSM Civ. R. 6(d).  Six days are added to this period when the service was done by mail.  FSM Civ. R. 6(e).  Plaintiff's filing of December 30, 1994 was therefore untimely.  The court may at its discretion enlarge the time for filing "for cause shown."  FSM Civ. R. 6(b).  Plaintiff gave no reason for late filing and did not seek leave for enlargement of time.

[7 FSM Intrm. 85]

     Nevertheless at hearing defendants' counsel did not oppose oral argument by plaintiff's counsel.1  Plaintiff's argument relied on the presence of the conjunctive word "and" in Civil Rule 56(c)2 to contend that if all of the items in the series were not on file in this case the court could not grant summary judgment.  Plaintiff misunderstands the rule.  The series "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," merely lists those items the court shall consider on a summary judgment motion if present in the file.  Not all of these items need to be present for a court to grant summary judgment.  "The court and the parties have great flexibility with regard to evidence that may be used on a Rule 56 proceeding."  10A Charles A. Wright et al., Federal Practice and Procedure 2721, at 40 (1983).3

     A court may not grant a motion unless proper grounds to do so exist even though the nonmoving party has failed to timely oppose the motion and is deemed to have consented to it.  Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994).

     For its factual basis, the defendants' motion relies upon their request for admissions, served August 8, 1994 and filed August 16, 1994, to which the plaintiff did not reply.  If a party has not replied to a request for admissions within 30 days the matter therein is deemed admitted.  Leeruw v. Yap, 4 FSM Intrm. 145, 148 (Yap 1989); FSM Civ. R. 36(a).  Plaintiff has therefore admitted to the matter in the defendants' request.  Matters admitted are conclusively established for the purposes of that proceeding.4 FSM Civ. R. 36(b).  Admissions obtained through a failure to respond to requests for admissions may be used as the factual basis for summary judgment.  Holmes & Turner v. Steer-In, 721 P.2d 1276, 1278-79 (Mont. 1986).

     "[T]he court [on motion] may permit withdrawal or amendment [of an admission] when the presentation of the merits . . . will be subserved thereby and the party who obtained the admission" cannot satisfy the court that it will be prejudiced by the withdrawal or amendment.  FSM Civ. R. 36(b).  In such a circumstance the court may impose other sanctions.  Leeruw, 4 FSM Intrm. at 149-50.  Although a motion to file a late response to the requests for admissions is considered a motion to amend or withdraw, id. at 148, an untimely response to a summary judgment motion cannot be deemed a motion to withdraw or amend, United States v. Kasuboski, 834 F.2d 1345, 1350 n.7 (7th Cir. 1987).  Therefore no motion to withdraw or amend is before me.

     Because the admissions thus obtained have established the lack of a genuine issue of material fact I must accordingly grant the defendants' motion for summary judgment.

*    *    *    *
 
Footnotes:
 
1.  Where the opposing party has not filed a timely response to a motion for summary judgment that party is deemed to have consented to the granting of the motion and the court may decline to hear oral argument.  Actouka v. Kolonia Town, 5 FSM Intrm. 121, 123 (Pon. 1991).
 
2.  "The judgment sought shall be rendered forthwith the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."  FSM Civ. R. 56(c) (emphasis added).
 
3.  When an FSM Rule of Civil Procedure is nearly identical to a U.S. one the court may look to U.S. practice for guidance.  Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 444 (App. 1994).
 
4.  Plaintiff's sworn Answers to Defendants' First Set of Interrogatories (Sept. 12, 1994) are in many material respects contrary to the admissions obtained by the defendants and would raise issues of genuine material fact.  Admissions, however, are conclusive, and cannot be otherwise overcome.  See, e.g., Airco Indus. Gases, Inc. v. Teamsters Health & Welfare Pension Fund, 850 F.2d 1028, 1036-37 (3d Cir. 1988) (in dicta, compelling trial testimony will not overcome admission where it has not been amended or withdrawn prior to trial); United States v. Kasuboski, 834 F.2d 1345 (7th Cir. 1987) (subsequent affidavits do not overcome admissions); Shakman v. Democratic Org. of Cook County, 481 F. Supp. 1315, 1346 n.35 (N.D.Ill. 1979) (subsequent affidavits cannot override admissions when withdrawal of admissions not sought and cannot be considered by the court); Holmes & Turner v. Steer-In, 721 P.2d 1276, 1279 (Mont. 1986) (previous contrary answer to complaint does not override subsequent admission by failure to respond); All-States Leasing Co. v. Top Hat Lounge, Inc., 649 P.2d 1250 (Mont. 1982) (subsequent legal argument unsupported by evidence will not overcome admissions).
                                                                                                                                                                                                                                                                                                           
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