9 FSM Intrm.279-284

A motion, although obviously filed as a result of an opponent's objection to an earlier motion for enlargement, but which requests affirmative relief different from the motion for enlargement, may stand as an independent motion, and may be seen as the withdrawal of the earlier motion to enlarge. Island

While the FSM Rules of Civil Procedure do not provide for replies to responses to motions, they do not prohibit them either, and it has been the general practice of FSM Supreme Court's trial division to consider them in the absence of an order directing differently. A court may consider replies to the extent that they address the response, and not to the extent that the reply may raise issues extraneous to the original motion or the response. Island Dev. Co. v. Yap, 9 FSM Intrm. 279, 282 (Yap 1999).

Every defense, in law or fact, to a claim for relief in any pleading must be asserted in the responsive pleading thereto except for the defenses list in Rule 12(b), which may be raised by motion made before pleading. If a Rule 12(b) motion is denied the responsive pleading must be made within 10 days after notice of the court's action. Island Dev. Co. v. Yap, 9 FSM Intrm. 279, 283 (Yap 1999).

A defense is that which is offered and alleged by the party proceeded against in an action or suit, as a reason in law or fact why plaintiff should not recover or establish what he seeks. A motion for abstention has little common ground with the concept of a defense because abstention by no means precludes a plaintiff from obtaining the requested relief but rather goes to the question of the appropriate forum in which to pursue that relief. Island Dev. Co. v. Yap, 9 FSM Intrm. 279, 283 (Yap 1999).

Abstention is not a defense to a lawsuit in the sense used in Rule 12(b). In abstention practice, the movant is asking the court to exercise its discretion to abstain from hearing the action for the express purpose that another court may hear the lawsuit. Island Dev. Co. v. Yap, 9 FSM Intrm. 279, 283 (Yap 1999).

There is no reason that answers could not be filed in due course during the pendency of an abstention motion, and there is also no reason that discovery could not have been ongoing during an abstention motion's pendency, since discovery was just as inevitable as the answer. Island Dev. Co. v. Yap, 9 FSM Intrm. 279, 284 (Yap 1999).

There has been no shortage of purely procedural motions filed in these two cases ) approximately ten in each case, depending on how they are counted, plus the abstention motion and the motion to reconsider the denial of the abstention motion, for a total of twelve motions in each matter. The following recital alludes ) and the court hopes with a minimum of confusion ) to the motions now germane to the issues before the court.

On September 17, 1999, Yap filed its Motion for Enlargement of Time to Answer in both of these cases, which are between the same parties, but which involve disputes over two separate contracts. The same motion was filed in both cases, but double captioned in the same way this order is. In the motion, Yap says that the answer was due "on or about September 20, 1990." The motion requests until "one week from . . . September 26, 1999" to file its answer, and since September 26, 1999, was a Sunday, Yap effectively requested until Monday, October 4, 1999, to answer.

In response to the identical motions for extension of time in both cases, IDC filed separate responses dated September 25, 1999. Both responses allege that the time for filing the answers in both civil actions was not September 20, 1999, but September 16, 1999. IDC reaches this conclusion by making the following calculation. Yap's motion for reconsideration of its abstention motion ) the abstention motion was filed in lieu of answer ) was denied on September 6, 1999. [Island Dev. Co. v. Yap, 9 FSM Intrm. 220 (Yap 1999).] Under Rule 12(a) of the FSM Rules of Civil Procedure, should a defendant file a motion to dismiss instead of an answer and the motion is denied, then defendant has 10 days from the date of denial of the motion to file its answer. IDC calculates that since the court denied the motion for reconsideration on September 6, 1999, Yap had until September 16, 1999, not until September 20, 1999, to file its answer. Further, IDC emphasizes that if a motion for a time extension under Rule 6(b)(2) of the FSM Rules of Civil Procedure is made after the time for doing a required act, then the movant must demonstrate excusable neglect. In its response to the motion for an extension filed in Civil Action 1999-3000, IDC maintains that the proffered explanation has not demonstrated excusable neglect; in its response to the motion for an extension filed in Civil Action 1999-3001, IDC contends that Yap has offered no reason whatever for its failure to file the answer in time.

On September 29, 1999, Yap filed its Motion to File Instanter in both cases in which it recites various reasons why it needed additional time to file its answer; advises the court that in light of IDC's objections it is no longer requesting until October 4, 1999, to file its answer; and further advises the court that it had in fact filed its answer, affirmative defenses and counterclaims on the previous day, September 28, 1999. In response to the motion to file instanter, IDC filed in both cases its "Response to `Motion to File Instanter'; Motion to Strike." The content of these responses is identical. IDC's first point is that Yap's motion to file instanter really is not a motion, but a reply to IDC's response to Yap's motion for enlargement. IDC contends that since Yap did not seek leave to file a reply ) replies to motions not being provided for by the FSM Rules of Civil Procedure ) the court should strike the motion. IDC's second point is that if the court should allow the filing of the motion to file instanter, "plaintiff desires only to point out that during the course of this action plaintiff has requested a single extension of time. . . . The State has had approximately nine months to formulate a response to the complaint."

IDC urges that the motion to file instanter should be stricken because it is actually Yap's reply to IDC's response to Yap's motion for enlargement, and not an independent motion. Since Rule 6(d) of the FSM Rules of Civil Procedure does not provide for a motion-response-reply sequence, but only for a motion and response, IDC asserts that the motion to file instanter should be stricken as a reply that Yap has not sought leave to file.

Yap's motion to file instanter, although obviously filed as a result of IDC's objection to the motion for enlargement, nevertheless requests affirmative relief different from the motion for enlargement. The motion for enlargement asked for leave to file the answer on or before October 4, 1999, while the motion to file instanter, which was filed on September 29, 1999, asks the court to permit the filing in both cases of the answer, affirmative defenses, and counterclaims, which Yap had filed a day earlier on September 28, 1999. Viewed in this light, the motion to file instanter may stand as an independent motion, and hence the motion to strike on the basis that the motion is an improperly filed reply is denied. In another light, since the motions are intrinsically inconsistent, the motion to file instanter may be seen as a withdrawal of the earlier motion to enlarge. Lastly, as the court noted in Damarlane v. FSM, 7 FSM Intrm. 383, 385 (Pon. 1996), while the FSM Rules of Civil Procedure do not provide for replies to (responses to) motions, they do not prohibit them either, and it has been the general practice of this court's trial division to consider them in the absence of an order directing differently. This court reads Damarlane to mean that the court may consider replies to the extent that they address the response, and not to the extent that the reply may raise issues extraneous to the original motion or the response.

One note on the September 17, 1999, motion for enlargement. The fact that Yap's motion to file instanter seeks relief different from and instead of the relief requested in the motion for enlargement moots the motion for enlargement, which the court therefore does not address. However, the court will consider the substance of IDC's objection to the motion for enlargement in the context of the motion to file instanter, discussed immediately infra, since from IDC's standpoint the motion to file instanter presents the same issue as the motion for enlargement, i.e., whether Yap should be allowed to answer the complaints in both Civil Action 1999-3000 and Civil Action 1999-3001.

The motion to file instanter, filed on September 29, 1999, requests leave to file the answer, affirmative defenses, and counterclaims in both cases on September 28, 1999, which is the date on which they had actually been filed with the court. As previously noted, under IDC's application of Rule 12(a) using the date of the denial of the motion for reconsideration of Yap's abstention motion as the starting date, the answers would have been due on September 16, 1999, not September 28, 1999. By applying Rule 12(a) to calculate the time for serving an answer after a motion in lieu of answer has been denied, IDC assumes that the motion to abstain was properly brought pursuant to Rule 12(b).

Yap had potentially captured the issue of the applicability of Rule 12(b) in a different motion for enlargement which accompanied the abstention motion in both cases in early February of this year. Yap, though not mentioning Rule 12(b) expressly, requested in that motion "an enlargement of time to answer or otherwise plead until there is a decision rendered on its motion for abstention. In the alternative, if this motion is denied, the defendants [sic] would request an additional fourteen days (14) after this motion is denied to answer or otherwise plead." IDC did not respond to this motion nor brief the potential Rule 12(b) question, but went on to respond to the merits of the abstention motion, which the court denied by order entered April 8, 1999.

[e]very defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted.

(emphasis added). As this portion of the rule makes plain, it is "defenses" that are properly brought in lieu of answer. Black's Law Dictionary defines "defense" as "[t]hat which is offered and alleged by the party proceeded against in an action or suit, as a reason in law or fact why plaintiff should not recover or establish what he seeks." Black's Law Dictionary 419 (6th ed. 1990). On the other hand, the entire entry, omitting the concluding citations, under "abstention doctrine" in Black's Law Dictionary is: "Doctrine of `abstention' permits a federal court, in the exercise of its discretion, to relinquish jurisdiction where necessary to avoid needless conflict with the administration by a state of its own affairs." Id. at 9. At a basic definitions level there is little common ground between the concept of a "defense" and that of "abstention." "Abstention" by no means precludes a plaintiff from obtaining the requested relief but rather goes to the question of the appropriate forum in which to pursue that relief.

In contrast, each of the seven enumerated defenses set out in Rule 12(b) has the potential to bring a permanent halt to the lawsuit. At least one of the defects justifying dismissal under Rule 12(b) may be subject to ready correction ) a Rule 12(b)(4) situation where defendant is served only with the summons or the complaint as opposed to both as provided by Rule 4(d) ("[t]he summons and complaint shall be served together") springs to mind. Nevertheless, in each case if a defendant establishes that the asserted basis for dismissal exists, then the lawsuit has come to the end of the road. Resuscitation of the lawsuit can occur in some of those instances, but only if the plaintiff takes affirmative ameliorating steps. Given the potential finality of a Rule 12(b) motion in lieu of answer, it makes sense to delay the filing of the answer, since it may not be necessary.

Not so with respect to an abstention motion, which assumes a validly constituted lawsuit before the court from which abstention is sought. Abstention is not a "defense" to a lawsuit in the sense used in Rule 12(b). In abstention practice, the movant is asking the court to exercise its discretion to abstain from hearing the action for the express purpose that another court may hear the lawsuit. The filing of an answer addressing the material allegations of the complaint is inevitable, provided that the plaintiff refiles the case in the appropriate court. See Gimnang v. Trial Division, 6 FSM Intrm. 482, 485 (App. 1994). Such an answer will be filed either in the court in which the suit is originally filed if the motion for abstention is denied, or in the court where the lawsuit is subsequently prosecuted, should the motion for abstention be granted. The point is, an answer must be prepared, served, and filed.

The court has not located an instance in case law where a motion to abstain was expressly brought under Rule 12(b). Generally, in their commentary on Rule 12(b) of the Federal Rules of Civil Procedure, Wright and Miller note "that [i]n accord with the policy of minimizing dilatory motion practice, Rule 12(b) expressly permits the pleader to raise the seven enumerated defenses by motion," and go on to observe that "[f]ederal courts also traditionally have entertained certain pre-answer motions that are not expressly provided for by the rules." 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1360 at 632, 633 (1969). Those motions include those made under

Rule 10 regarding formal pleading requirements; those involving the Rule 11 signature requirement; and those "includ[ing] matters brought under one of the enumerated Rule 12(b) motions, either by analogy or by expanding the scope of the Rule 12(b) defense, such as motions raising affirmative defenses or a lack of capacity to sue or be sued." Id. at 633 (footnotes omitted). Although Wright and Miller do not specifically include abstention motions in their discussion, they do observe that "motions to stay and motions to dismiss because another action is pending," fall within "[y]et another group of pretrial motions closely related to the management of the lawsuit and might generally be characterized as involving matters of judicial administration; the authority to hear these motions lies in the inherent power of a court to regulate actions pending before it." Id. at 633-34 (emphasis added). Of the motions discussed by Wright and Miller, the motion to stay most closely analogizes to the motion to abstain at issue here, and Wright and Miller describe such a motion not as a pre-answer motion, but as a pre-trial motion.

With these principles in mind, the court can see no compelling reason why the motion to abstain in this case is properly a Rule 12(b) motion to dismiss in lieu of answer. As Wright and Miller observe, the purpose of Rule 12 is to "minimize dilatory motion practice." 5 Wright & Miller, supra, at 632. The purpose of the rule was not served in the instant case, as substantial delay has resulted from the fact that the motion to abstain was brought as a pre-answer motion. There is no reason that the answers in both cases could not have been filed in due course. For that matter, there is also no reason that discovery could not have been ongoing during the pendency of the abstention motion, since discovery was just as inevitable as the answer. Compare Boggess v. Columbian Rope Co., 167 F. Supp. 854, 856 (S.D.N.Y. 1958) (granting of a stay of trial in a federal court action made conditional upon the defendant's agreeing that discovery would go forward in the federal proceeding, and that that discovery would be used in the earlier filed state proceeding, the purpose being to permit plaintiff to take advantage of more liberal federal discovery rules), noted in 5 Wright & Miller, supra, § 1360, at 639. This approach would have accommodated Yap's interest in bringing its abstention motion with IDC's interest in expediting the lawsuit.

Accordingly, since the motion to abstain was not a pre-answer motion within Rule 12(b), the ten day time period for filing the answer after such a motion is denied as provided in Rule 12(a) is not applicable. As this is the basis upon which IDC challenges the timeliness of the answer, Yap's motion to file instanter is granted. At this point, IDC has waived any other basis for contending that Yap should not be permitted to answer the complaint in both cases.