FSM SUPREME COURT
TRIAL DIVISION
Cite as FSM Telecommunications Corp. v. Worswick,
7 FSM Intrm. 420 (Yap 1996)

[7 FSM Intrm. 420]

FSM TELECOMMUNICATIONS CORPORATION,
Plaintiff,

vs.

JUANITA WORSWICK,
Defendant.

CIVIL ACTION NO. 1995-3023

ORDER

Martin Yinug
Associate Justice

Decided:  March 15, 1996

APPEARANCES:
For the Plaintiff:          John Hollinrake, Esq.
                                     Law Offices of R. Barrie Michelsen
                                     P.O. Box 1450
                                     Kolonia, Pohnpei FM 96941

For the Defendant:     Mariano W. Carlos, Esq.
                                     P.O. Box 272
                                     Koror, Palau PW 96940

*    *    *    *

HEADNOTES
Civil Procedure) Motions
     Requests for postponements are properly made by a motion for an enlargement of time.  Such a motion may be made even after the time specified for action has passed when the failure to act was due to excusable neglect.  FSM Telecommunications Corp. v. Worswick, 7 FSM Intrm. 420, 422 (Yap

[7 FSM Intrm. 421]

1996).

Attorney, Trial Counselor and Client) Attorney Discipline and Sanctions
     An attorney may be sanctioned when by that attorney's use of two different addresses and his failure to monitor both addresses for service of papers causes delay.  FSM Telecommunications Corp. v. Worswick, 7 FSM Intrm. 420, 422 (Yap 1996).

*    *    *    *

COURT'S OPINION
MARTIN YINUG, Associate Justice:
     This is an Order granting an enlargement of time by which the defendant may file a response to plaintiff's summary judgment motion.  The confusion regarding service extends to both parties and the Court.  Because the confusion appears to be the fault of defendant's counsel, a monetary sanction in the amount of $30 is assessed against defendant's counsel.

I.  Proceedings to Date
     The plaintiff, FSM Telecommunications Corp., ("Telecom") filed a complaint to collect a debt of $7,247.78 allegedly incurred by defendant, Juanita Worswick, on an open book account on May 15, 1995.  Worswick, through her counsel, Mariano Carlos, filed an Answer admitting and denying portions of the Complaint, on May 23, 1995.  Worswick is also the wife of Mariano Carlos.

     This Answer did not comply with FSM Civil Rule 5(d), in that defendant's counsel did not indicate his name and address.  After notice by the Clerk of Court, Mr. Carlos filed an Answer, and served a copy on plaintiff's attorney, specifying his address and telephone number as follows:

Mariano W. Carlos
P.O. Box 272
Koror, Palau 96940
                     Phone: 488-2737
                     Fax: (680) 488-3910

     Defendant served and filed a request for production of documents on September 11, 1995.  The defendant requested that the documents be served at the following address:

Juanita Worswick
P.O. Box 91
Colonia, Yap State FM  96943
 
     Telecom filed its Motion for Summary Judgment on February 12, 1996.  The proof of service, dated February 5, 1996, indicates that the Motion was mailed to the following address:

Mariano W. Carlos
Counsel for Defendant
c/o Juanita Worswick
                     P.O. Box 91
Colonia, FM 96943

[7 FSM Intrm. 422]

Counsel for defendant did not file any opposition to the Motion for Summary Judgment.  A notice of hearing on the motion issued on February 29, 1996.  It too was mailed to defendant's counsel at his Yap address.

     On March 11, 1996, the defendant brought a motion to continue the hearing on the summary judgment motion.  The clerk of court correctly refused to file the motion because it was signed by the defendant herself, and not her counsel of record.  Later that same day, the Court received a letter from defendant's counsel, cross-copied to Telecom's counsel, requesting time to respond to the motion, asserting that there are issues of material fact.  Mr. Carlos stated that he was involved in a trial in Palau and did not know if he could return to Yap to attend the hearing as scheduled.  Telecom, through its counsel, sent a letter objecting to any extension of time, asserting that defendant consented to the granting of the motion by failure to serve a timely response.

     At the hearing on March 14, 1996, neither defendant nor her counsel appeared. Telecom appeared through counsel.

II.  Law and Analysis
     The Court is willing to construe Mr. Carlos's letter of March 11, 1996 as requesting an enlargement of time.  Mr. Carlos is admonished, however, that the proper application for any order is by motion.  FSM Civ. R. 7(b)(1).  A party may apply for an enlargement of time, by motion, even after the time specified for an action has passed, where the failure to act was due to excusable neglect.  FSM Civ. R. 6(b)(2).

     The reasons outlined in Mr. Carlos's March 11 letter may demonstrate excusable neglect sufficient to grant an extension of time.  Carlos stated that he was in the middle of a trial in Palau, and that he was overwhelmed with other obligations, including hearings on other matters and an appellate brief.  Carlos's neglect is also excusable because the motion was served by Telecom's counsel, and the notice was served by the Court, on Mr. Carlos's Yap address.  It is plausible that because Mr. Carlos was not served with the summary judgment motion in Palau, that he could not file a motion to enlarge time before the date by which an opposition to summary judgment was due.
 
     The reason for the confusion regarding the different addresses lies squarely with Mr. Carlos.  He filed two documents with two different addresses.  It was reasonable for the plaintiff to serve the most recent address.  Delay could have been avoided had Mr. Carlos monitored his Yap address.  Accordingly, Mr. Carlos is sanctioned $30 for failing to monitor both his addresses.

     Telecom suggests a more severe sanction, that the motion for summary judgment be ruled upon as if the defendant waived objection and was deemed to have consented to granting of the motion.  But Mr. Carlos asserts that there are issues of material fact, and that summary judgment would be improper.  Given the policy of deciding matters, particularly dispositive motions, on the substance of the claim, the Court is willing to grant defendant the time to respond to the summary judgment motion.  Paul v. Hedson, 6 FSM Intrm. 146, 147 (Pon. 1993).

III.  Conclusion
     1.  The defendant's time to respond to plaintiff's Motion for Summary Judgment is hereby enlarged.  Defendant may oppose the motion in writing no later than Monday, March 25, 1996.

     2.  Defendant shall serve and file any written opposition by facsimile and air mail on counsel for the plaintiff no later than the close of business, 5:00 p.m., Pohnpei time, on Monday, March 25, 1996.

[7 FSM Intrm. 423]

     3.  Should the Court determine that a hearing is necessary or helpful to its decision of the motion, the hearing shall be on Friday, March 29, 1996, at 9:30 a.m.

     4.  Mariano Carlos is hereby sanctioned $30 for the reasons stated in this Order.  He shall deliver that sum to the clerk of court within 30 days.
                                                                                                                                                                                                                                                                                                           
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