THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Damarlane v. United States ,
7 FSM Intrm. 468 (Pohnpei 1995)

[7 FSM Intrm. 468]

IGNACIA DAMARLANE et al.,
Plaintiffs,

vs.

UNITED STATES OF AMERICA, on its own behalf and
in the place of the GOVERNMENT OF THE
TRUST TERRITORY OF THE PACIFIC ISLANDS,
Defendants.

CIVIL ACTION NO. 1990-075

ORDER

Richard H. Benson
Associate Justice

Decided:  April 8, 1996

APPEARANCES:
For the Plaintiffs:        Mary Berman, Esq.
                                     P.O. Box 163
                                     Kolonia, Pohnpei FM 96941

For the Defendant:     Daniel J. Berman, Esq.
(United States)           Rush, Moore, Craven, Sutton, Morry & Beh
                                     745 Fort Street
                                     Honolulu, HI 96813-3862

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[7 FSM Intrm. 469]

HEADNOTES
Costs
     Costs may be allowed to a party prevailing against an indigent or in forma pauperis plaintiff who raised irrelevant matters and engaged in vexatious procedures or whose actions were frivolous or malicious.  Damarlane v. United States, 7 FSM Intrm. 468, 469 (Pon. 1996).

Costs
     Although it is especially important to avoid any approach calculated to favor the wealthy and deprive poor persons of access to the courts, that principle should not operate to penalize the indigents' opponent whose costs are increased because of frivolous claims and proceedings which are prolonged by repetition of contentions already ruled upon.  Damarlane v. United States, 7 FSM Intrm. 468, 470 (Pon. 1996).

Costs
     A prevailing party will be allowed costs for depositions and copying costs which represent payments to others for that service, but not the cost of copying within the law office.  Long distance telephone and facsimile expenses incurred in communication between the lawyer who appeared and the client and other lawyers, claims for postage and courier expenses, and expenses not adequately explained are disallowed.  Damarlane v. United States, 7 FSM Intrm. 468, 470 (Pon. 1996).

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This case is before me on the defendant United States' Motion to Tax Costs. The motion is opposed by the defendants.

     Rule 54(d) of the FSM Rules of Civil Procedure governs.  It reads in part that "costs shall be allowed as of course to the prevailing party unless the court otherwise directs."

     I have carefully weighed the memorandums of both counsel, paying particular note to the thorough and pertinent memorandum of the plaintiffs.  Only one contention warrants discussion:  the plaintiffs request that I consider their indigence and allow no costs.  I have considered this request and studied the affidavits filed by several plaintiffs and conclude that under the circumstances of the case it is proper to allow costs.  Chevrette v. Marks, 558 F. Supp. 1133 (M.D. Pa. 1983) (plaintiff proceeding in forma pauperis raised irrelevant matters and engaged in vexatious procedures must pay costs to the prevailing party); 10 Charles A. Wright et al., Federal Practice and Procedure 2673 (1983) (costs may be allowed against in forma pauperis plaintiff whose action is frivolous or malicious).

     In arriving at this conclusion I have considered the following which is found in the record.

     1.  A pattern of plaintiffs of again raising issues already settled by pretrial proceedings, for instance, asserting that the Clean Water Act gives a right to damages by a private suitor.

     2.  One of the plaintiffs' claims was for trespass, alleging that the defendants access to the dredging site crossed the plaintiffs' land.  At trial it quickly became apparent that the access road was over land owned by a non-party who had a certificate of title.

[7 FSM Intrm. 470]

     3.  At the close of the plaintiffs' case all counts against the FSM and all but one against PTA and Pohnpei State were dismissed pursuant to Rule 41(b) of the FSM Rules of Civil Procedure, indicating the weakness of the plaintiffs' case.

     4.  My order in this case, entered December 15, 1995, holding that sanctions were appropriate against the plaintiffs' attorney, and the proceedings in court on January 16, 1996 at which the attorney was admonished.

     The plaintiffs cite Semens v. Continental Air Lines, Inc. (II), 2 FSM Intrm. 200, 207 (Pon. 1986) in support of their opposition to the allowing of costs against them: "In the Federated States of Micronesia, where so many citizens have little monetary wealth, it is especially important to avoid any approach calculated to favor the wealthy and deprive poor persons of access to the courts.  This may be a constitutional requirement.  See FSM Const. art. XIII, 1."

     I believe in the usual case this point has great weight in deciding whether to allow costs against an indigent.  But I do not think that principle should operate to penalize the indigents' opponent whose costs are increased because of frivolous claims and proceedings which are prolonged by repetition of contentions already ruled upon.  Cf. Duhart v. Carlson, 469 F.2d 471 (10th Cir. 1972) (a person proceeding in forma pauperis has no constitutional right of access to the courts to prosecute a case which is frivolous and malicious, and costs may be allowed against that person).

     The United States asks that costs totalling $8,478.00 be allowed.  All costs claimed for depositions are allowed: $2,559.40.  Salik v. U Corp., 4 FSM Intrm. 48, 49 (Pon. 1989).  The copying costs which represent payments to others for that service are allowed: $573.30. Tolenoa v. Kosrae, 2 FSM Intrm. 247, 259 (Kos. 1986).  The balance of the claim is apparently to meet the cost of copying within the law office of the United States and are denied.

     Long distance telephone and facsimile expenses of $4,593.07 were incurred in communication between the lawyer who appeared and the Department of Justice in Washington, D.C. and a lawyer in Guam.  These expenses are not allowed. Semens (II), 2 FSM Intrm. at 203.  The majority rule in the United States is also that such expenses are not allowed.  10 Wright et al., supra, 2677, at 371.  In addition to these authorities, the indigence of the plaintiffs inclines me to disallow these expenses.

     The claims for postage and courier expenses are disallowed, again following the majority rule.  Id. n. 47.  The claim for a notary public, $4.00, is disallowed as not being adequately explained.

     Costs totalling $3,132.70 are allowed to the United States against the plaintiffs.

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