THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Eko v. Bank of Guam,
7 FSM Intrm. 164 (Chuuk 1995)

[7 FSM Intrm. 164]

KACHUO EKO,
Plaintiff,

vs.

BANK OF GUAM,
Defendant.

CIVIL ACTION NO. 1994-1028

ORDER

Richard H. Benson
Associate Justice

Hearing:  March 30, 1995
Decided:  May 31, 1995

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

For the Defendant:     Anita P. Arriola, Esq.
                                     Arriola, Cowan & Bordallo
                                     P.O. Box X
                                     Agaa, Guam 96910

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[7 FSM Intrm. 165]

HEADNOTES
Civil Procedure ) Admissions
     In principle there is no difference in treating a motion to allow late filing of admissions as a Rule 36(b) motion to withdraw or amend admissions and of treating the late filing itself as a Rule 36(b) motion.  Eko v. Bank of Guam, 7 FSM Intrm. 164, 165-66 (Chk. 1995).

Civil Procedure ) Admissions
     Where the only prejudice to the defendant was the attorney's necessary expenses and in order to permit a presentation of the case on the merits, a court may allow the plaintiff's late filing of answers to requests for admissions conditioned upon his deposit with the court of a sum equal to the expenses incurred.  Eko v. Bank of Guam, 7 FSM Intrm. 164, 166 (Chk. 1995).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This case came before me on March 30, 1995 on the motion of the defendant for an order granting summary judgment.  The issue presented is whether late filing of the response to a request for admissions may be treated as a motion (pursuant to FSM Civ. R. 36(b)) to withdraw or amend admissions resulting from non-response.  I conclude that the plaintiff may withdraw or amend and the late filing allowed, subject to a condition.

     The issue presented is a recurring one.  See Mailo v. Bae Fa Fishing Co. 7 FSM Intrm. 83 (Chk. 1995) (no answers filed to request for admission; no motion to permit late filing); Pohnpei v. Kailis, 7 FSM Intrm. 27 (Pon. 1995) (late filing of responses accompanied by a motion to permit late filing); Leeruw v. Yap, 4 FSM Intrm. 145 (Yap 1989) (motion to file late responses to request for admission).  See also Paul v. Hedson, 6 FSM Intrm. 146 (Pon 1993) (sanction for late filing of answers to interrogatories).  All these cases, and the present case, involve an unjustifiable delay.

     In support of its motion for summary judgment, the defendant seeks to show the absence of any genuine issue as to any material fact by relying on the plaintiff's failure to respond to the defendant's requests for admissions within 30 days of the service.  FSM Civ. R. 36(a).  The matters are deemed admitted when not answered within 30 days.  Id.  The request for admissions was served by mail on the plaintiff on August 19, 1995.  When no answers were received, the defendant reminded the plaintiff on October 3, 1994 that they were due.  No response was made.  The defendant then served its present motion on October 18, 1994.

     The parties had filed their stipulation as to pretrial proceedings on July 28, 1994, stating that discovery was to be completed by October 31.  Moreover, more than 30 days had passed since the service of the request for admissions, on November 18, 1994 the plaintiff served his answers to the request for admissions.

     In Leeruw and Kailis, supra, the court treated the motions to permit late filing of responses as motions to withdraw or amend admissions (such admissions having occurred because of lack of timely response) pursuant to FSM Civil Rule 36(b).  The question in this case is related but distinct:  should the late filing of the response be treated as a motion to withdraw or amend?

     In principle there is no difference in treating a motion to allow late filing as a Rule 36(b) motion

[7 FSM Intrm. 166]

and of treating the late filing itself as a Rule 36(b) motion.  Bowers v. E.F. Rose Mfg. Co., 149 F.2d 612, 615 (9th Cir.) (abuse of discretion to strike late answers to request for admission and grant summary judgment based in part on failure to answer), cert. denied, 326 U.S. 753 (1945); Countee v. United States, 112 F.2d 447, 451 (7th Cir. 1940) (denial of plaintiff's motion to strike late answer to request for admissions upheld because no indication of lack of good faith and no prejudice to plaintiff).  The pertinent part of the rule reads,

     [T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits.

FSM Civ. R. 36(b).

     The first of the two-part test in the rule is met in this case.  The admissions reach every ultimate issue in the case.  Amendment or withdrawal will permit a presentation of the case on the merits.  As to the second part, withdrawal or amendment of the admissions (obtained by lack of timely response) will prejudice the defendant whose lawyer traveled to Chuuk from Guam for the hearing.  The trip was necessary.  The failure to reach the merits of the motion for summary judgment was caused by the dilatory conduct of the plaintiff's counsel.  Thus prejudice exists, but I conclude that it can be largely remedied.  It is not such prejudice as prevents the defendant from defending the action on the merits.

     The late filing of the response by the plaintiff will be considered a motion to withdraw or amend the admissions, and granted provided that the plaintiff first deposits in court (for transmission to the defendant) $509.00 as reimbursement for the following travel costs of defendant's lawyer: $245.00 air fare, $194.00 hotel, $45.00 car rental, $15.00 food and $10.00 departure tax.

     The motions to withdraw or amend and for summary judgment will not be decided until after July 10, 1995, to give the plaintiff an opportunity to deposit the payment in court by that date.

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