FSM SUPREME COURT
TRIAL DIVISION
Cite as O'Sullivan v. Panuelo ,
9 FSM Intrm. 229 (Ponape 1999)

[9 FSM Intrm. 229]

SHERRY O'SULLIVAN,
Plaintiff,

vs.

FRANK PANUELO; ELSA THOMAS; HERBERT
GALLEN, individually, and in his capacity as Public
Information Officer for the Office of the President
of the Federated States of Micronesia; FRANKLIN
FRANK, individually and in his capacity as Public
Information Officer of the Congress of the
Federated States of Micronesia; and THE
FEDERATED STATES OF MICRONESIA,
Defendants.

CIVIL ACTION NO. 1997-061

ORDER DENYING MOTION TO DISMISS
AND NOTICE OF ERRATA

Andon L. Amaraich
Chief Justice

Argued:  July 15, 1999
Decided:  July 23, 1999

APPEARANCES:
For the Plaintiff:             Sherry O'Sullivan, pro se
                                        125 Donald Road, Apt. 207
                                        William's Lake, BC V2G 4R3 CANADA

For the Defendants:      Andrew Sprenger, Esq.
(Panuelo & Thomas)     Micronesian Legal Services Corporation
                                        P.O. Box 129
                                        Kolonia, Pohnpei FM 96941

For the Defendants:      Lewis W. Littlepage, Esq.
(FSM & Gallen)             Assistant Attorney General
                                        FSM Department of Justice
                                        P.O. Box PS-105
                                        Palikir, Pohnpei FM 96941

For the Defendant:        Dennis Belcourt, Esq.
(Frank)                            FSM Congress Legislative Counsel
                                        Kathleen A. Rittner, Esq.
                                        FSM Congress Staff Counsel
                                        P.O. Box PS-3
                                        Palikir, Pohnpei FM 96941

[9 FSM Intrm. 230]
*    *    *    *

HEADNOTES
Civil Procedure ) Dismissal
     Rule 41(b) requires prosecution of a civil lawsuit with reasonable diligence to avoid dismissal.  The burden of prosecuting a civil lawsuit lies with any party seeking affirmative relief.  O'Sullivan v. Panuelo, 9 FSM Intrm. 229, 231 (Pon. 1999).

Civil Procedure ) Filings
     Permission for parties to file documents by fax transmission may be given for special cause and shall only apply to the case until otherwise ordered.  O'Sullivan v. Panuelo, 9 FSM Intrm. 229, 232 (Pon. 1999).

Immigration
     The government may be directed to allow a plaintiff to enter the FSM as required for the limited purpose of prosecuting her lawsuit through trial.  O'Sullivan v. Panuelo, 9 FSM Intrm. 229, 232 (Pon. 1999).

*    *    *    *

COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:

1.  Introduction
     This matter comes before the Court on a motion to dismiss for failure to prosecute pursuant to FSM Civil Rule 41(b) filed on January 12, 1999 by defendants Herbert Gallen and the Federated States of Micronesia.  The motion was joined by defendant Franklin Frank.

     The hearing on this motion was initially set to occur on March 23, 1999.  It was continued from that date, however, after the Court determined plaintiff had not received actual notice of the motion because the last known address supplied by her former attorney was no longer good and plaintiff did not leave a forwarding address.  After plaintiff's former attorney substituted out of the case on January 16, 1998, plaintiff undertook her own representation but failed to keep the Court and the parties apprised of her whereabouts.  Prior to the March 23, 1999 scheduled motion hearing, Counsel for the FSM attempted to locate plaintiff through a computer search on the Internet but was unsuccessful.  Ultimately, counsel for Franklin Frank located the plaintiff in Canada and notice of the motion was served on her.1  The hearing, which was then rescheduled for July 15, 1999, went forward as planned.

     The hearing was attended by Lewis Littlepage, Esq. on behalf of the FSM and Mr. Gallen.  Andrew Sprenger, Esq. of Micronesian Legal Services Corporation appeared on behalf of defendants Elsa Thomas and Frank Panuelo.  Also appearing were Dennis Belcourt, Esq., Legislative Counsel to the FSM Congress, and Kathleen A. Rittner, Staff Counsel to the FSM Congress on behalf of defendant Franklin Frank.  Plaintiff Sherry O'Sullivan appeared telephonically from Canada on her own behalf.

[9 FSM Intrm. 231]

2.  Summary of Arguments and Analysis
     Counsel for the FSM argued that plaintiff's case should be dismissed because she failed entirely to take reasonable steps to move the matter forward for a period of more than one year.  He also pointed out that since being contacted in March of 1999 regarding his clients' intention to move to dismiss the case for lack of prosecution, plaintiff continued with a pattern of inactivity.  Counsel for the other defendants concurred with this position.

     The Court then asked plaintiff to respond to the defendants' arguments in support of dismissal and to explain herself for not supplying the Court and the parties with a valid address or some other means by which she could be contacted as needed.  Plaintiff responded by stating that she deliberately concealed her whereabouts from the Court and the defendants.  She explained that this was a strategy on her part to get one or more defendant to bring a motion to dismiss, suggesting that if such a motion was granted she would then have an appellate remedy not otherwise available to her.  The Court understands that plaintiff took this approach in part due to her inability to be physically present in the FSM based on a June 1997 decision by the FSM Division of Immigration not to allow her to re-enter the FSM.

     Plaintiff also suggested that she was left with no other option in terms of prosecuting her lawsuit after the Court denied her July 14, 1997 motion for a protective order allowing her to enter the FSM to attend the depositions of each individual defendant and to remain in Pohnpei during the pendency of this civil matter.  The record shows, however, that plaintiff's motion for a protective order was not denied on its merits.  Rather, the motion was denied on the basis of non-compliance with FSM Civil Rule 6(d) because plaintiff did not make reasonable efforts to cooperate with the Office of the Attorney General to obtain an agreement on permitting her to re-enter the FSM before filing a motion with the Court.  In the order denying the motion for protective order the Court specifically directed the parties,"to engage in good faith negotiation in an effort to reach a mutually satisfactory arrangement for defendants' depositions, and to make reasonable efforts to resolve other such discovery disputes before filing further motions with the Court. . . ."  Order at 5, lns. 18-22 (Aug. 4, 1997).

     While the Court does not know what, if any, further negotiations between the parties ensued, it is clear from plaintiff's statements during the July 15, 1999 hearing on the motion to dismiss that she eventually chose to return to Canada and thereafter deliberately concealed her whereabouts from both the Court and the parties to this litigation.

     Plaintiff should be advised that FSM Civil Rule 41(b) requires prosecution of a civil lawsuit with reasonable diligence to avoid dismissal.  The burden of prosecuting a civil lawsuit lies with any party seeking affirmative relief.  In this case the only such party is the plaintiff.  Plaintiff should be aware that the defendants were not obligated to seek her out.  Nor were they required to induce her to prosecute this action against them.  Given the duration of inactivity by the plaintiff and the fact that she was deliberately keeping her location unknown, the defendants cannot reasonably be said to have acted hastily in requesting dismissal.  The Court required the defendants to make more significant efforts to locate the plaintiff out of an abundance of caution given the circumstances surrounding this case.  It is the uniqueness of those circumstances and the plaintiff's stated intention to pursue this matter with renewed vigor that leads the Court to conclude that the case ought not be dismissed.  Accordingly, the motion to dismiss is hereby denied.

     The Court reminds the parties that expeditious resolution of litigation and effective case management is in the best interests of the public and all involved here.  With this in mind and to minimize the potentially prejudicial effects of further delay, the parties are directed to move this matter forward diligently.

[9 FSM Intrm. 232]

3.  Attorney Representation
     At the hearing on the dismissal motion, plaintiff indicated her desire to secure attorney representation as soon as possible.  Plaintiff stated that she would begin efforts to locate an attorney immediately and felt that she could retain counsel within 90 days.  The Court hereby directs plaintiff to act on her intentions of retaining counsel and to make all reasonable efforts to accomplish this within 90 days of this order.  If plaintiff feels she will not be successful in locating an attorney to represent her within this time, she is hereby ordered to notify the Court and to otherwise keep the Court and the parties informed if she anticipates the need for additional time.

4.  Fax Filing
     Due to the plaintiff's current residence in Canada and self-representation, the Court will permit the filing of documents in this case via telefax at (691) 320-2756, provided that on the same day of fax filing documents with the Court, they are also transmitted by fax to every other party, the original is mailed to the Court and photocopies of the original are mailed to each party.

     Service of documents made via facsimile shall be deemed complete at the time of transmission, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after the service of a document, which time period or date is prescribed by statute or rule of court, shall be extended, after service by facsimile transmission, by two court days.

     Permitting the parties to file documents by fax transmission is an exception to General Court Order 1990-1 prohibiting fax filing.  Such permission is given for special cause and shall only apply to this case until otherwise ordered.  [FSM Civ. R. 5(e).]  The parties are asked to be mindful of the added burden on Court staff and potential confusion fax filing tends to create.  Accordingly, the parties are directed not to abuse the privilege.

5.  Trial Setting
     The parties are advised that the Court intends to set this case for trial within 180 days from the date plaintiff's new counsel appears in this matter.  Each party should be prepared to accomplish discovery, to locate witnesses and secure their availability and to retain experts as needed within this time frame.

6.  Entry into FSM by Plaintiff
     Plaintiff should also undertake plans to enter the FSM if she deems that necessary to prosecute this case.  In the Court's order of May 7, 1999, the FSM Division of Immigration and Labor was directed to allow plaintiff to enter the FSM to attend the hearing on the motion to dismiss and as required thereafter to prosecute this lawsuit.  Since counsel for the FSM confirmed at the motion hearing that the government will not impede efforts by the plaintiff to enter the FSM for the limited purpose of prosecuting this case through trial, plaintiff should not delay in making travel plans if necessary.

7.  Further Status Conference and Scheduling Order
     After plaintiff secures representation and upon entry of appearance by her counsel, the Court will issue an order setting a status conference.  This will be followed by a pre-trial scheduling order which will include deadlines for the completion of discovery, for filing motions, for the exchange of expert witness information.  The pre-trial order will govern pre-trial matters to ensure the orderly

[9 FSM Intrm. 233]

disposition of this case through trial.

8.  Notice of Errata
     The Court hereby notifies the parties that its order of May 11, 1999 contained a number of errors on dates.  As plaintiff correctly pointed out in the papers she submitted to the Court via telefax and e-mail on June 29, 1999, the fax she sent to the Court requesting a continuance was transmitted on May 2, 1999 and received by the Court on May 3, 1999 not March 3, 1999 as indicated previously.  Plaintiff also indicates that she erroneously dated the fax April 1, 1999 instead of May 1, 1999.  She states that the correct date for that fax is May 1, 1999.  It is so noted.
 
 
Footnote:
 
1.  In addition to serving plaintiff with the motion to dismiss, the Court is informed that each party also served her with copies of all papers filed since her whereabouts became unknown in January 1998.
 
                                                                                                                                                                                                                                                                                                           
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