THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as Harden v. Primo ,
9 FSM Intrm. 571 (Ponape 2000)

[9 FSM Intrm. 571]

WAYNE L. HARDEN,
Plaintiff,

vs.

MARKITO PRIMO,
Defendant.

CIVIL ACTION NO. 1998-075

ORDER

Andon L. Amaraich
Chief Justice

Decided:  November 16, 2000

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

For the Defendant:     Tino Donre, Esq.
                                     Micronesian Legal Services Corporation
                                     P.O. Box 129
                                     Kolonia, Pohnpei FM 96941

[9 FSM Intrm. 572]
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HEADNOTES
Civil Procedure ) Summary Judgment
     A court may grant a summary judgment motion only it finds there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.  The facts and inferences must be viewed in the light most favorable to the party opposing the motion.  Harden v. Primo, 9 FSM Intrm. 571, 573 (Pon. 2000).

Civil Procedure ) Admissions
     A party's requests to admit are deemed admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the requesting party a written answer or objection addressed to the matter.  Harden v. Primo, 9 FSM Intrm. 571, 573 (Pon. 2000).

Civil Procedure
     A party cannot simply leave the jurisdiction to avoid a lawsuit.  A party aware she has litigation pending against her, should, prior to leaving the court's jurisdiction, provide her attorney with a means to contact her.  A party cannot expect a court to wait and see if she will return before rendering judgment.  Harden v. Primo, 9 FSM Intrm. 571, 574 (Pon. 2000).

Civil Procedure ) Admissions
     When the sanction of deeming all the facts admitted as plaintiff urges in his motion for summary judgment is a severely harsh sanction for defendant's failure to respond to plaintiff's requests to admit, the court may order defendant to submit responses to plaintiff's requests to admit within 30 days, and if defendant fails to respond to plaintiff's requests to admit, or provides an inadequate response, the court may, upon plaintiff's proper motion, deem admitted all of the requested facts and also require defendant to pay plaintiff's attorney's fees in bringing an additional motion.  Harden v. Primo, 9 FSM Intrm. 571, 574 (Pon. 2000).

*    *    *    *

COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:
     This matter comes before the Court on the plaintiff's motion for summary judgment, filed on September 27, 2000.  Defendant filed her opposition to the motion on October 5, 2000.  For the reasons set forth below, the Court hereby denies plaintiff's motion for summary judgment.

Background
     Plaintiff filed his complaint on October 29, 1998.  In his complaint he alleges that defendant incurred a debt to him in the amount of $1,511.92 and has not paid the debt.  Plaintiff further alleges that interest accrues at one percent per month on the debt, and that defendant is responsible for plaintiff's attorney's fees in an action to collect the debt.

     On December 23, 1998, defendant answered the complaint.  Defendant does not deny that she in fact owes plaintiff money, but claims that she owes $290 instead of plaintiff's alleged sum of $1,511.92.

[9 FSM Intrm. 573]

     On April 23, 1999, plaintiff served a set of requests to admit on defendant.  Defendant failed to serve a response to plaintiff's requests to admit.

     On September 27, 2000, plaintiff filed a motion for summary judgment.  Plaintiff argues that since defendant failed to serve a response to plaintiff's requests to admit, "[t]he matters addressed in [plaintiff's] requests to admit are deemed admitted under [Rule 36(a) of the FSM Rules of Civil Procedure].  These requests address every point of [defendant's] liability to [plaintiff], including the ultimate liability for $1,551.87."  See Pl.'s Motion for Summary Judgment at 2.

     On October 5, 2000, defendant timely filed an opposition to plaintiff's motion for summary judgment.  Defendant argues that when plaintiff's requests to admit were served on defendant's counsel, defendant has already left the jurisdiction to go to the USA in search of employment.  Defendant claims that her counsel immediately notified plaintiff's counsel when defense counsel learned defendant had left for the USA.  Defendant argues that since she personally had not been made aware of plaintiff's requests to admit, "the implementation of sanctions under Rule 36 [of the FSM Rules of Civil Procedure] are not valid yet against defendant."

Discussion
     Even though labeled a motion for summary judgment, plaintiff's motion is actually a request for two separate forms of relief. (1) that the matters contained in plaintiff's requests to admit be deemed admitted, and (2) that summary judgment be granted in favor of plaintiff and against defendant.

     A motion for summary judgment under Rule 56 may be granted only if the moving party shows that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law.  Manahane v. FSM, 1 FSM Intrm. 161, 164 (Pon. 1982).  Under Rule 56(c) of the FSM Rules of Civil Procedure, judgment shall be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of any material fact and that the moving party is entitled to judgment as a matter of law.  In interpreting this rule, the Court, in considering a motion for summary judgment, must view the facts and inferences in a light that is most favorable to the party opposing the motion.  See FSM v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 79, 81 (Pon. 1997); Federated Shipping Co. v. Ponape Transfer & Storage, 4 FSM Intrm. 3, 16 (Pon. 1989).  A court must deny a summary judgment motion unless it finds there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The facts must be viewed in the light most favorable to the party against whom judgment was entered.  Taulung v. Kosrae, 8 FSM Intrm. 270, 272 (App. 1998).

     In the present case, to determine whether there are genuine issues as to material facts, it must first be determined whether the matters contained in plaintiff's requests to admit are deemed admitted.  Rule 36(a) of the FSM Rules of Civil Procedure provides that [in responding to requests for admission]:

"Each matter of which an admission is requested shall be separately set forth.  The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter . . . ."

FSM Civ. R. 36(a) (emphasis added).

     Defendant's argument that the matters contained in plaintiff's requests to admit should not be deemed admitted because she was not in the FSM when the requests were served upon her is quite

[9 FSM Intrm. 574]

weak.  A party cannot simply leave the jurisdiction to avoid a lawsuit.  Defendant was aware she had litigation pending against her.  Prior to leaving the jurisdiction of this Court, defendant should have provided her attorney with a means to contact her so that this type of situation could have been avoided.  Defendant cannot expect the Court to wait and see if defendant will return before rendering judgment.

     However, the sanction of deeming all the facts admitted as plaintiff urges in his motion for summary judgment is a severely harsh sanction for defendant's failure to respond to plaintiff's requests to admit.  In Pohnpei v. M/V Miyo Maru No. 11, 8 FSM Intrm. 281 (Pon. 1998), Sapwuafik served Pohnpei State with a request for answers to interrogatories and a request for supporting documents.  Pohnpei State failed to respond to the requests and Sapwuafik moved for discovery sanctions against Pohnpei State.  The Court issued an order denying Sapwuafik's motion for discovery sanctions but directing Pohnpei State to respond to Sapwuafik's discovery requests within 30 days.  Pohnpei State did respond to Sapwuafik's discovery requests, but provided so little discovery that Sapwuafik filed a motion for sanctions for failure of Pohnpei State to comply with the Court's order.  Sapwuafik requested in its motion that certain facts covered by the discovery requests be deemed admitted.

     The Court declined to order that certain facts be designated as admitted.  But the Court did recognize that Sapwuafik was required to make two motions which would not have been necessary had Pohnpei State complied with the time limits set forth in the FSM Rules of Civil Procedure.  The Court then ordered Pohnpei State to pay Sapwuafik's attorney's fees in preparing and arguing the two motions to force Pohnpei State to provide the discovery requested.

     At the present time, the Court declines to order that the facts contained in plaintiff's requests to admit be deemed admitted.  Therefore, the Court must also deny plaintiff's motion for summary judgment.  However, this Court is mindful that defendant's failure to respond to plaintiff's requests to admit precipitated plaintiff's motion for summary judgment.  This Court now orders defendant to submit responses to plaintiff's requests to admit within 30 days of the date of entry of this Order.  If defendant fails to respond to plaintiff's requests to admit, or provides an inadequate response, upon plaintiff's proper motion this Court may deem admitted all of the requested facts in plaintiff's requests to admit and also require defendant to pay plaintiff's attorney's fees in bringing an additional motion.

     Therefore, it is hereby ordered:

     (1)  Plaintiff's motion to have deemed admitted all matters requested in plaintiff's requests to admit filed on April 23, 1999 is denied.

     (2)  Plaintiff's motion for summary judgment is denied.

     (3)  Defendant is ordered to provide a response to plaintiff's request to admit within 30 days of the date of entry of this Order.

     (4)  If defendant fails to provide a response to plaintiff's requests to admit, or provides an incomplete response, upon plaintiff's proper motion this Court may order admitted all matters contained in plaintiff's requests to admit filed April 23, 1999, and require defendant to pay plaintiff's attorney's fees in bringing an additional motion.
                                                                                                                                                                                                                                                                                                           
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