FSM SUPREME COURT
TRIAL DIVISION
Cite as Calvary Baptist Church v. Pohnpei Bd. Of Land Trustees,
9 FSM Intrm. 238 (Ponape 1999)

[9 FSM Intrm. 238]

CALVARY BAPTIST CHURCH, WORLD-WIDE
NEW TESTAMENT BAPTIST MISSION,
and DAVID ARTHURS,
Plaintiffs,

vs.

POHNPEI BOARD OF LAND TRUSTEES, THE
STATE OF POHNPEI, and CELIA PANUELO,
Defendants.

CIVIL ACTION NO. 1999-031

ORDER

Andon L. Amaraich
Chief Justice

Decided:  October 1, 1999

APPEARANCES:
For the Plaintiffs:          Ron Moroni, Esq.
                                       P.O. Box 1618
                                       Kolonia, Pohnpei FM 96941

For the Defendants:     James Woodruff, Esq.
(PBLT & Pohnpei)       Attorney General
                                       Pohnpei Department of Justice
                                       P.O. Box 1555
                                       Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Civil Procedure ) Motions
     All motions must contain the movant's certification that a reasonable effort has been made to obtain the opposing party's agreement or acquiescence and that no such agreement has been forthcoming.  Motions without such certification may be denied without prejudice on that basis alone.  Calvary Baptist Church v. Pohnpei Bd. of Land Trustees, 9 FSM Intrm. 238, 239 (Pon. 1999).

Civil Procedure ) Motions
     Compliance with the rule requiring motions to contain a movant's certification that a reasonable effort has been made to obtain the opposing party's agreement initiates a dialogue between the parties and decreases the cost of litigation by minimizing paperwork and eliminating unnecessary court appearances when compromises are reached, and in turn reduces the court's workload thereby increasing its ability to attend to other matters and minimize delays.  Calvary Baptist Church v. Pohnpei

[9 FSM Intrm. 239]

Bd. of Land Trustees, 9 FSM Intrm. 238, 239 (Pon. 1999).

*    *    *    *

COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:
     This matter comes before the Court on two motions; (1) defendants State of Pohnpei and the Pohnpei Public Land Board of Trustees' (hereafter collectively referred to as "Pohnpei" or "defendants") July 27, 1999 motion to dismiss for failure to state a claim upon which relief can be granted; and, (2) plaintiffs Calvary Baptist Church (CBC), World-Wide New Baptist Mission (World-Wide) and David Arthurs' August 16, 1999 motion for leave to file an amended complaint.  Neither motion complies with FSM Civil Rule 6(d) which requires that, "[a]ll motions shall contain certification by the movant that a reasonable effort has been made to obtain the agreement or acquiescence of the opposing party and that no such agreement has been forthcoming."  Id. (emphasis added).  Therefore, both motions are denied without prejudice on that basis alone.

     However, because the certification requirements of Rule 6 are so frequently overlooked, the Court feels further comment on the policy underlying the rule is in order.  There are several reasons for requiring litigants to try to reach an agreement on a contemplated motion before allowing them to involve the Court.

     First, compliance with the rule initiates a dialogue between the parties.  If a party intending to make a motion fully explains his position and listens to his opponent's response a compromise will often be reached and the case will be brought one step closer to resolution without court intervention.  Moreover, upon consultation with his adversary a moving party will often be presented with evidence not previously available to him or argument he had not before considered.  This may lead him to an understanding that his position lacks merit or it may alert him to the need for additional discovery or investigation before making the motion, if at all.  Additionally, when attorneys ask for and receive professional courtesies they become more likely to respond in kind and a conciliatory tone is set for the remainder of the litigation.  This makes settlement easier to achieve and more likely to result earlier on in the case.

     Second, good faith adherence to the rule decreases the cost of litigation by minimizing paperwork and eliminating unnecessary court appearances when compromises are reached.  In turn, this reduces the Court's workload thereby increasing its ability to focus on other matters needing attention and delays are minimized overall.

     The motion to dismiss presently before the Court serves as a good example of how proper use of the rule would have likely proved beneficial to the parties involved here.  Without ruling on its merits, the Court notes that the motion references extrinsic facts and addresses several matters outside the pleadings. Therefore, pursuant to FSM Civil Rules 12(b) and (c) the Court is required to treat it as a motion for summary judgment under FSM Civil Rule 56.  The motion, however, is unaccompanied by affidavits or other admissible evidence establishing the existence of material facts shown not to be in dispute.  In light of plaintiffs' opposition papers, accompanied as it is by deposition testimony obtained after the motion was filed, it appears to the Court that plaintiffs' counsel would have advised the moving parties of his need to conduct discovery on the statute of limitations defense raised by the motion if defense counsel had phoned him as part of a "reasonable effort" to comply with Rule 6(d).

     Similarly, it seems to the Court that any discussion between counsel for plaintiffs and defendants

[9 FSM Intrm. 240]

on the propriety of a dispositive motion at this early stage of the litigation would have lead them to recognize the existence of multiple unresolved issues of fact material to both the complaint and the affirmative defenses.  When a discussion between counsel occurring in compliance with Rule 6(d) results in such a recognition, the Court would not expect a motion to be filed given the mandate of FSM Civil Rule 11.  Instead, the Court would expect the parties to direct their efforts at resolving any factual disputes, and as a result, the case would either become ripe for summary judgment at a later date or the issues about which a substantial dispute remained would form the subject of a trial.

     Since the motions presently before the Court are denied without prejudice, both parties are free to renew them subject to compliance with FSM Civil Rule 6(d). However, if after consulting with plaintiffs' counsel the defendants choose to re-file their motion at this stage of the litigation without further discovery, they are directed to concurrently file a separate statement of undisputed material facts accompanied by competent supporting evidence.  This separate statement shall set forth each fact material to the outcome of any cause of action or affirmative defense forming the subject of the motion which defendants claim to be without dispute.  Each fact shall be identified by number and the evidence supporting it shall be specifically described and attached as an exhibit.  For example:

     Undisputed Material Fact No. 1:
          Plaintiff signed the contract on January 1, 1999.

     Evidence Supporting Undisputed Material Fact No. 1:
Defendant's affidavit authenticating contract, p. 2, ln. 3, attached hereto as Exhibit "A"; Contract dated January 1, 1999 bearing plaintiff's signature, attached hereto as Exhibit "B."

     If the defendants follow this format on a renewed motion, the plaintiffs shall file their own separate statement either admitting that the specified fact is without dispute or indicating that it is disputed and attaching evidence establishing that a triable issue of fact exists.  The opposing parties may also include additional disputed and undisputed material facts if they feel it is warranted.

     Based on the foregoing, both motions presently before the Court are hereby denied without prejudice.
                                                                                                                                                                                                                                                                                                           
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