THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as Kosrae v. Worswick ,
9 FSM Intrm. 437 (Kosrae 2000)

[9 FSM Intrm. 437]

STATE OF KOSRAE,
Plaintiff,

vs.

DANIEL P. WORSWICK, DANCHI CONSTRUCTION
COMPANY, and PETER CHRISTIAN,
Defendants.

CIVIL ACTION NO. 1994-2004

ORDER OF DISMISSAL AND MEMORANDUM; ORDER SETTING DEADLINE

Martin Yinug
Associate Justice

Decided:  July 4, 2000

APPEARANCES:
For the Plaintiff:            Ronald P. Bickett
                                       Assistant Attorney General
                                       Office of the Kosrae Attorney General
                                       P.O. Box 870
                                       Tofol, Kosrae FM 96944

For the Defendants:     Doug Parkinson, Esq.
                                       P.O. Box 2069
                                       Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Civil Procedure) Discovery
     No party is expected to engage in discovery for the benefit of another party.  Kosrae v. Worswick, 9 FSM Intrm. 437, 441 (Kos. 2000).
 
Civil Procedure ) Dismissal
     There has been a clear record of delay justifying dismissal for failure to prosecute when substantial delay has resulted from plaintiff's failure to act during the period from December, 1994 until September, 1999, and from plaintiff's subsequent failure to act with the due dispatch required by the court's November 25, 1999 order.  Kosrae v. Worswick, 9 FSM Intrm. 437, 441-42 (Kos. 2000).
*    *    *    *
 
[9 FSM Intrm. 438]

COURT'S OPINION
MARTIN G. YINUG, Associate Justice:
     On February 24, 2000, defendant Daniel P. Worswick ("Worswick") filed his motion to dismiss this case for failure to prosecute.  The court reads the allegations of the complaint to say that the defendant Danchi Construction Company ("Danchi") is Worswick's dba, and treats the motion as filed on behalf of Danchi as well.  Also on February 24, 2000, Worswick filed his Status Report, and Answer to First Amended Complaint.  On March 2, 2000, there was filed Plaintiff Kosrae State's Motion for an Enlargement of Time to File Case Status Report (Kosrae's status report is attached to the motion); Declaration of Ronald P. Bickett in Support of Motion; and Kosrae State's Opposition to Defendant Daniel P. Worswick's Motion to Dismiss for Failure to Prosecute; Memorandum of Points and Authorities.

     Pursuant to Rule 41(b) of the FSM Rules of Civil Procedure, the motion to dismiss for failure to prosecute is granted as to defendants Worswick and Danchi.  Given the disposition of Worswick's motion to dismiss, the court does not address Kosrae's motion to enlarge time for filing the status report.

I.  Background
     The complaint in this case was filed on May 25, 1994, more than six years ago. In August of 1994, Kosrae filed a document production request, and in December of 1994, requests for admission.  On June 26, 1996, Worswick filed a motion for enlargement of time to answer the December, 1994, requests for admission. Kosrae did not respond to the motion, which has as an attachment the affidavit of counsel in which Worswick's counsel recites that a prior Kosrae assistant attorney general had granted an indefinite extension of time in which to answer the requests for admission.  In any case, the court granted the motion.

     The next thing that Kosrae did after the filing of the requests for admission was nearly five years later, when on September 13, 1999, it joined in a motion to continue the trial date.  After that, Kosrae's next action was to file for a protective order, amounting to twenty-one pages with attachments, on October 18, 1999, when Worswick attempted to do discovery.  Kosrae claimed that the discovery was untimely, where the pretrial statements were due on November 30, 1999, and the defendant propounded his discovery on October 11, 1999.  Kosrae asserted that discovery had been closed because of prior orders, subsequently superseded, which had set dates for the filing of the pretrial statements.  The court denied Kosrae's motion and directed Kosrae to answer the discovery.

     On November 23, 1999, or seven days before the pretrial statements were once again due, Kosrae moved to file its first amended complaint requesting leave to add Peter Christian ("Christian") as another defendant.  On November 24, 1999, Worswick filed his nonopposition to Kosrae's motion and also filed an unopposed motion for enlargement of time for pretrial statements to reflect any discovery undertaken in light of the additional party.  On November 25, 1999, the court granted both motions, and also as part of the order granting the motions, required the parties to report to the court the status of the case, including the status of discovery, no later than February 24, 2000.  The order cautioned that the parties were not to be "lulled into inertia" because the court was permitting the filing of the amended complaint and continuing the time for the filing of pretrial statements, and after noting that the case was the oldest pending case on the court's Kosrae docket, further directed that the case was "to proceed with all due dispatch."

[9 FSM Intrm. 439]

II.  Discussion
A.  Worswick's motion to dismiss for lack of prosecution
     On February 24, 2000, Worswick filed his status report, in which he asserted that Kosrae had done little, if anything, to prosecute the case since the November order.  Based on the same inactivity alleged in the status report as well as the case's prior history, Worswick filed, also on February 24, 2000, his motion to dismiss for lack of prosecution pursuant to 41(b).  Kosrae did not file its status report in a timely fashion on February 24, 2000, as required by the court's November 25, 1999, order, but instead on March 2, 2000, filed an opposition to the motion to dismiss, and a motion for enlargement of time to file the status report.  According to the file, Kosrae has taken no further steps to prosecute the case from the time of the filing of its opposition to the motion to dismiss until the present.

B.  Kosrae's response to the motion to dismiss
     In contending that Worswick's motion to dismiss should be denied, Kosrae urges that the most recent continuance in the case was at Worswick's instance; that Worswick has contributed to the delays in this case by undertaking discovery five and a half years after the case was filed; and that Kosrae acted in a timely fashion when it took 60 days to serve the amended complaint which the court on November 25, 1999, granted Kosrae leave to file.  Lastly, Kosrae contends that Worswick now wants Kosrae to undertake discovery on Worswick's behalf as to any issues raised by the amended complaint.  The court considers each contention in turn.

    1.  The most recent continuance
     Kosrae urges that "[a]s a matter of record, the most recent enlargement of time was requested by the Defendants themselves on November 24th, 1999."  Kosrae State's Opposition to Defendant Daniel P. Worswick's Motion to Dismiss for Failure to Prosecute; Memorandum of Points and Authorities at 4 (bold and italics added by Kosrae).  Kosrae asserts that "[d]efendants requested a six-month enlargement of time in which to conduct further discovery and submit pretrial statements."  Id.  Kosrae's characterization is not entirely accurate.  Worswick's November 24, 1999, motion is styled "Unopposed motion for Enlargement of Time," and is accompanied by counsel's affidavit which states that Kosrae did not oppose the motion, and further states at paragraph 3 that the "motion would be in the form of a joint motion, rather than an unopposed motion, if both counsel were on the same island."  The motion is couched in these terms:

If the Court grants plaintiff's motion, there will be good cause for an enlargement of time for the pretrial statements, and indeed to enlarge the time for trial to one later trip by the Court to Kosrae.  A new party will be added.  At least a small amount of discovery would be needed, and the new party would need to prepare a defense.  It is suggested that something like a six-month delay would be appropriate.

Unopposed Motion for Enlargement of Time at 2.  Suggesting "something like a six-month delay," where the suggestion is unopposed, is of a different stripe from an outright unilateral motion for a continuance.  Kosrae may not lay the continuance entirely at the feet of Worswick.

     2.  Worswick's October 8, 1999, discovery
     Kosrae contends that Worswick contributed to the delay in this case by initiating discovery on October 8, 1999, after the case had been pending for five and a half years.  This point is readily

[9 FSM Intrm. 440]

dispatched.  Kosrae's contention ignores the fact that Worswick could initiate the discovery because the case was still at the pretrial stage due to the fact that Kosrae had done nothing in the case for nearly five years ) the court in its November 5, 1999, order, which denied Kosrae's request for a protective order, noted that no discovery cutoff date had been set up to that time.  In this regard, Kosrae is simply not in a position to hold Worswick to a standard to which it did not hold itself.

     3.  Sixty days to effect service of the amended complaint
     Kosrae advises that the summons for the amended complaint was issued on December 14, 1999, and that the amended complaint was served approximately 60 days thereafter.  Kosrae contends that 60 days was a reasonable time in which to effect service, because FSM Rule of Civil Procedure 4(j) requires service of the complaint within 120 days of the issuance of the summons.  According to the certificate of service filed on February 23, 2000, service was effected by first class mail, fax, and hand delivery on the defendants on February 17, 2000.  (The certificate of service is at variance with Kosrae's status report at page 1, which recites that "[p]laintiff has attempted service on all of the Defendant's [sic] in this matter by fax and certified mail, return receipt requested on February 17, 2000.")  In its motion to enlarge time to file the status report, counsel for Kosrae cites personnel shortages in his office, as well as his necessary off-island travel for purposes of official state business and for personal medical reasons.

     In the three months from the November 25, 1999, order until the time designated for the filing of the status reports, Kosrae accomplished nothing more than service of the amended complaint upon the parties.  Service appears to have been a perfunctory and highly delegable undertaking, and this did not constitute "proceed[ing] with all due dispatch" under the November 25, 1999, order.  To say that service of the amended complaint was timely under Rule 4(j) because service was accomplished in approximately half of the time for which a summons remains valid is not instructive.  The question was not how slowly Kosrae could act and still be timely under an arguable reading of Rule 4(j), but how expeditiously it could act to prosecute its case after the court had issued the November 25, 1999, order making it clear that the court expected the case to move forward with dispatch.

     Additionally, Kosrae did not file its status report on February 24, 2000, which was also required by the same order, but waited until March 2, 2000, to file a motion for enlargement of time to file the status report.  While the court is not insensitive to the exigencies of staff shortages and necessary travel cited by Kosrae's counsel, this most recent manifestation of the lethargy which has beset this case, when taken together with the prior delay of nearly five years during which Kosrae did nothing, causes the court to conclude that defendant's motion should be granted.

4.  Kosrae's contention that Worswick wants Kosrae to do discovery for him
     In his motion to dismiss, Worswick's states that "[b]y telephone, at that time and subsequently, Worswick's counsel informed the State of Kosrae's counsel that Worswick would not agree to take on the burden of conducting additional discovery directed to the new defendant, and that the State of Kosrae would have to bear that burden."  Motion to Dismiss at 3, lines 3-6.  Worswick further notes that

Worswick is a defendant.  He cannot be expected to initiate and conduct the kind of discovery a plaintiff engages in to build its case.  Also, Worswick is an individual who has to struggle to pay to defend himself; he has to limit costs in this matters.  Furthermore, he cannot be expected to expedite a case against himself; that is the plaintiff's role.  Worswick's counsel has repeatedly informed the state's counsel that Worswick has instructed his counsel to conduct his defense in the least expensive manner consistent

[9 FSM Intrm. 441]

     with presenting the defense.

Motion to Dismiss at 3 n.2.  Responding to these two passages, Kosrae asserts that "[d]efendant [sic] contention that this case should be dismissed for Plaintiff's failure to conduct discovery procedures on the behalf and bequest [sic] of a Defendant is legally unsound."  Kosrae State's Opp'n to Def. Daniel P. Worswick's Motion to Dismiss for Failure to Prosecute; Memorandum of Points and Authorities at 5.  Specifically, Kosrae urges that

[i]t also appears that Defense counsel somehow wants to make the Plaintiff bear the burden for conducting discovery on behalf of his client.  (See page 3 lines 3-6 and Footnote 2 of Defendant's Motion to Dismiss, [which the court has set out immediately above]).  Plaintiff is suing all the Defendants in this action and if Defense counsel believes that additional discovery is needed in order to prepare a full and proper defense for his client, then it would be misguided for him to rely on Plaintiff's counsel to complete such discovery.

Id.

     The court is at a loss to understand Kosrae's argument.  On October 18, 1999, Kosrae filed its motion seeking to preclude Worswick from conducting any additional discovery.  That motion was denied.  Now that an additional party has been added, however, Kosrae appears to be complaining about Worswick's lack of willingness to go forward with discovery.  But the latter position, which is just as infirm as the former, does not follow from Worswick's contentions now before the court.

     The thrust of Worswick's motion to dismiss is that Kosrae failed to take any steps after the November 25, 1999, order to prosecute its case, and that Worswick will not conduct discovery that in his view Kosrae should undertake. Each party is in the better position to assess what discovery needs to be done in order to prepare his or its case for trial.  Although Worswick might benefit from discovery undertaken by Kosrae, should that discovery point in the direction of the added defendant's liability and away from Worswick's, it seems obvious that no party is expected to engage in discovery for the benefit of another party.  Without more, the court will attribute rationality to litigation decisions, and must attribute any decision by Worswick to do no additional discovery ) it is not plain that Worswick has in fact made that decision ) not to his expectation that Kosrae would do his discovery for him, but to the reasoned judgment that no additional discovery was necessary for him to adequately present his case at trial.  In sum, none of Kosrae's present contentions about who should be doing what discovery sheds any light at all on the fact that Kosrae did nothing more after the court's November 25, 1999, order, than serve the additional defendant with the summons and amended complaint.

III.  Conclusion          
     In support of his motion, Worswick cites McGillivray v. Bank of the FSM, 7 FSM Intrm. 19 (Pon. 1995).  The delay resulted in that case when the plaintiff actively sought to avoid going forward with discovery.  Here, substantial delay resulted from Kosrae's failure to act during the period from December of 1994 until September of 1999, and from Kosrae's subsequent failure to act with the "due dispatch" required by the court's November 25, 1999, order.  Taken together, the court finds that there has been "a clear record of delay" justifying dismissal.  Id. at 23.  The court had raised the possibility of imposing the sanction of dismissal as early as the order of September 14, 1999.  Although the facts on which that order was based changed with the filing of the motion to amend the complaint to add a party, it should be no surprise that the court imposes the sanction of dismissal in light of subsequent events, or rather, nonevents.

[9 FSM Intrm. 442]

     Accordingly, this case is dismissed for failure to prosecute as to defendants Worswick and Danchi under Rule 41(b) of the FSM Rules of Civil Procedure.

     A final note regarding scheduling.  As between the remaining defendant Christian ) who has not answered the amended complaint as of the date of this order and memorandum ) and Kosrae, all discovery, including answers to discovery, will be completed by October 31, 2000.  Any pretrial motions will be filed by November 30, 2000.  The court expects this case to move.
                                                                                                                                                                                                                                                                                                           
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