9 FSM Intrm.589-601

The FSM Civil Procedure Rules 5, 6 and 7 set forth the requirements governing service, filing and the form of motions. In accordance with Rule 5, all motions filed with the court must also be served on each party to the action. Similarly, each paper filed must be accompanied by certification of service of copies upon all other parties. O'Sullivan v. Panuelo, 9 FSM Intrm. 589, 592 (Pon. 2000).

A motion is deficient in multiple respects when it does not appear that it was served on any party to the action including the very party it was directed toward, when it was not accompanied by certification of service upon all other parties, when it was supported by an affidavit which was filed one day after the motion was filed and the affidavit was not accompanied by certification of service upon all other parties as required by Rule 5(d), nor was it served with the motion as required by Rule 6(d), and when the motion did not contain a certification that a reasonable effort had been made to obtain the agreement or acquiescence of the opposing party and that no such agreement had been forthcoming. O'Sullivan v. Panuelo, 9 FSM Intrm. 589, 595 (Pon. 2000).

Notice that the court has been requested to issue an order affecting a litigant's rights and an opportunity for that party to be heard are constitutionally mandated by the due process clause.O'Sullivan v. Panuelo, 9 FSM Intrm. 589, 595 (Pon. 2000).

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 litigation costs 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. O'Sullivan v. Panuelo, 9 FSM Intrm. 589, 595-96 (Pon. 2000).

A plaintiff's summary judgment motion that fails to comply with the certification requirements of Civil Procedure Rule 6(d) may, for this reason alone, be denied without prejudice and may be renewed subject to plaintiff making reasonable attempts to reach agreements on its disposition with the defendants affected by any order requested. O'Sullivan v. Panuelo, 9 FSM Intrm. 589, 597 (Pon. 2000).

Summary judgment motions are only granted if there are no disputed issues of material fact pertinent to the given cause of action or affirmative defense addressed by the motion. If any material facts are in dispute, the parties are entitled to a trial on the merits of their causes of action or affirmative defenses. O'Sullivan v. Panuelo, 9 FSM Intrm. 589, 597 (Pon. 2000).

A court may order on its own motion that overdue responses not be deemed admissions of fact because the fashioning of remedies and sanctions for a party's failure to comply with discovery requirements is a matter within the court's discretion. Overdue responses to requests for admission are not customarily treated as having been admitted in the absence of a showing of actual prejudice to the propounding party combined with no showing of excusable neglect by the responding party.O'Sullivan v. Panuelo, 9 FSM Intrm. 589, 598 (Pon. 2000).

When confronting violations of the discovery rules (or alleged misuse of the discovery process) courts strive to apply sanctions commensurate with the degree of neglect or wrongdoing viewed in light of any harm suffered by the aggrieved party. Sanctions as harsh as those which would in effect establish a defendant's liability are generally issued only upon a finding of deliberate disregard of the rules or following a pattern of discovery abuse or related misconduct. O'Sullivan v. Panuelo, 9 FSM Intrm. 589, 598 (Pon. 2000).

In determining what must be done to satisfy the Rule 6(d) requirement that a reasonable effort has been made to obtain the opposing party's agreement, it is appropriate to consider the circumstances of a given case, and a reasonable effort to obtain agreement may include an explanation clarifying the issue involved and explaining the likely outcome of the motion from both a procedural and substantive perspective. O'Sullivan v. Panuelo, 9 FSM Intrm. 589, 600 (Pon. 2000).

The FSM Rules of Civil Procedure, Rules 5, 6 and 7, set forth the requirements governing service, filing and the form of motions. In accordance with Rule 5, all motions filed with the Court must also be served on each party to the action. Similarly, each paper filed must be accompanied by certification of service of copies upon all other parties. The express provisions in the rule are as follows:

(a) Service: When Required. Except as otherwise provided in these rules or by order of the Court, every order required by its terms to be served, every pleading, every paper relating to discovery, every written motion, notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. No service need to be made on the parties in default for failure to appear except that pleadings asserting new or additional claim for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.

(b) Same: How Made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney or trial counselor the service shall be made upon the attorney or trial counselor unless direct service upon the party itself is ordered by the court. The office of the clerk of court is authorized to provide notice of hearing to counsel through fax to counsel's law office, but only for counsel on the same island from which the matter is sent. Otherwise, service upon the attorney or trial counselor or upon a party shall be made by delivering a copy to that person or by mailing it to that person's last known address or, if no address is known, by leaving it with the clerk of court. Delivery of a copy within this rule means: handing it to the attorney, to the trial counselor or to the party; or leaving it at the person's office with the clerk or other person in charge thereof; or, if there is no one in charge, leaving it at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.Subject to Rule 6(e), service by mail is complete upon mailing.

(d) Filing. All papers after the complaint required to be served upon a party shall be filed with the court, in duplicate, either before service or within a reasonable time thereafter and shall be accompanied by certification of service of copies upon all other parties. All papers filed shall contain the mailing address and telephone number of the party filing the papers, or of that party's attorney or trial counselor. The court may on motion of a party or on its own initiative order that depositions upon oral examination and interrogatories, requests for documents, requests for admission, and answers and

(e) Filing With the Court Defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of this court in the state in which the case is pending, except that the justice may accept papers as filed, in which event the justice shall note thereon the filing date and forthwith transmit them to the office of the clerk. In absence of an order of a justice of this court, given for special cause, the office of the clerk of court shall not accept for filing any document transmitted to the clerk of court through a telecommunication facsimile.

(a) Computation. In computing any period of time prescribed or allowed by these rules, by local rules of any court of the trial division, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. Except in the case of computation for additional time for mailing under Rule 6(e), when the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), "legal holiday" includes New Year's Day, Constitution Day (May 15), Federated States of Micronesia Day (November 3), Christmas Day, and any other day appointed as a holiday by the President or the Congress of the Federated States of Micronesia.

(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specific time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under rules 52(b), 59(b), (d) and (e), and 60(b), except to the extent and under the conditions stated in them.

heard ex parte and notice of the hearing thereof shall be served, with a memorandum of points and authorities, not later than 14 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion. All 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.

The party opposing the motion shall not later than 10 days after the service of the motion upon that party, file and serve responsive papers. When a motion is opposed by affidavit, the affidavit shall be served with the responsive papers. The responsive papers shall consist of either (1) a memorandum of points and authorities, or (2) a written statement that the party will not oppose the motion.

(e) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper and the notice or paper is served upon that party by mail, 6 days shall be added to the prescribed period.

In this case, an exception to Rule 6 has been established by the Court's order of June 14, 2000 requiring that 30 days shall be added to the prescribed period of time following service and that such time shall be calculated from the date papers are mailed (even if they are also faxed) as shown on the certificate of service accompanying the document served. In all other respects, the rule as set out above controls here. Likewise for Rule 7.

(a) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.

(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefore, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. The requirements of time, efforts to obtain agreement prior to filing, and for the submission of memoranda of points and authorities are found in Rule 6(d).

(2) Unless otherwise ordered by the court, parties must file an original and one copy of all documents filed with the court pursuant to these rules. The rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by these rules.

The motion plaintiff filed on May 30, 2000 is deficient in multiple respects. First, it does not appear that the motion was served on any party to the action including defendant Franklin Frank, the very party it was directed toward. See FSM Civ. R. 5(a); defendant Frank's Opp'n at 1 n.1 (June 8, 2000).

Third, the motion was supported by an affidavit which was filed with the Court on May 31, 2000, one day after the motion was filed. This affidavit was not accompanied by certification of service upon all other parties as required by Rule 5(d), nor was it served with the motion as required by Rule 6(d).

These rules are of utmost importance to the administration of justice. Indeed, notice that the Court has been requested to issue an order affecting the rights of a litigant and an opportunity for that party to be heard are constitutionally mandated by the due process clause. FSM Const. art. IV, § 3.

The requirement that reasonable efforts be made by a moving party to obtain the agreement of the opposing party before filing a motion is, in the Court's view, a particularly important one. The Court wishes to prevent discord between litigants by encouraging a party not to file a motion without first contacting his or her adversary by phone, fax, mail, or via the Internet, to fully explain the merits of a given position and to attempt to reach an agreement on the matter involved before requesting the Court to intervene. The fact that a lawsuit is pending between parties does not mean that there will or should be disagreements on each and every issue that arises. It is often the case that a party will be mistaken on the facts or will not be aware of the law controlling the issue involved. Reasonable efforts at communicating with an adversary will often shed light on the matter and even if the parties do not end up in total agreement the issues are often narrowed considerably.

In Calvary Baptist Church v. Pohnpei Board of Land Trustees, 9 FSM Intrm. 238 (Pon. 1999), this Court commented on the rationale underlying Rule 6(d) and on the benefits to the parties, the Court and the public at large by requiring adherence to the rule.

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 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.

Plaintiff's motion of May 30, 2000 serves as a prime example of how the rule, if followed, would have proved beneficial. The motion relies entirely on a misunderstanding of the rules pertaining to service of discovery responses. Focusing on the date plaintiff received discovery responses and accusing defendant Frank of acting in bad faith, plaintiff's motion asks the Court to deem as admitted facts which would support a finding of liability against Frank. As pointed out in his opposition papers, however, defendant Frank's responses were timely filed with the Court on May 5, 2000 and were timely served by mail that same day in compliance with the applicable rules and in keeping with the Court's order permitting, but not mandating, filing by fax. An e-mail to counsel for defendant inquiring as to the whereabouts of the discovery responses would have, in all likelihood, yielded this information. Certainly, compliance with Rule 6(d) would have resulted in the moving party becoming aware that defendant responded timely as would have an e-mail to the Court asking if the answers had been filed on time. Instead, the plaintiff filed the instant motion as well as a motion for summary judgment

The Court understands that the plaintiff is representing herself in this case. But that does not excuse her from following the rules. In this case the "meet and confer" requirements of Rule 6 were first brought to her attention in connection with the Court's August 5, 1997 order ruling on her July 14, 1997 motion for protective order. As a courtesy, the Court again brought this rule to her attention in an e-mail sent June 8, 2000.

2. Plaintiff's June 5, 2000 Motion for Summary Judgment.
Plaintiff's motion for summary judgment fails to comply with the certification requirements of FSM Rules of Civil Procedure, Rule 6(d). For this reason alone, it is denied without prejudice and it may be renewed subject to plaintiff making reasonable attempts to reach agreements on its disposition with the defendants affected by any order requested.

In considering whether to renew the motion the Court reminds plaintiff that motions for summary judgment are only granted if there are no disputed issues of material fact pertinent to the given cause of action or affirmative defense addressed by the motion. If any material facts are in dispute, the parties are entitled to a trial on the merits of their causes of action or affirmative defenses. Similarly, the Court does not generally entertain a motion for summary judgment until it is clear that all desired discovery has been concluded. To do otherwise would potentially deprive a party of his, her or its rights to determine what the facts are in the case and to understand the contentions of any adversary. Please refer to the cited portions of the Calvary Baptist Church case above for an example of how this works in practice.

If after consulting with the defendants' lawyers the plaintiff chooses to re-file her motion at this stage of the litigation without further discovery, she is ordered 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 plaintiff claims 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:

If the plaintiff follows this format on a renewed motion, the defendants 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. As will be indicated further below, the requirement of a separate statement of undisputed material facts with

This motion fails to comply with FSM Rules of Civil Procedure, Rule 6(d), as well. Unlike plaintiff's motion of May 30, 2000, however, it appears that the responses to requests for admissions served by defendant Frank Panuelo were in fact late having been served by mail on May 19, 2000, nine days beyond the May 10, 2000 due date (calculated on the basis of fax service adding two court days to the prescribed 30 day period pursuant to the order of July 23, 1999). 1

Without considering plaintiff's motion, however, the Court orders on its own motion that the overdue responses shall not be deemed admissions of fact. "The fashioning of remedies and sanctions for failure of a party to comply with discovery requirements is a matter within the court's discretion." Pohnpei v. M/V/ Miyo Maru No. 11, 8 FSM Intrm. 281, 290 (Pon. 1998) (citing Nakamura v. Bank of Guam (II), 6 FSM Intrm. 345, 349 (App. 1994)). This Court does not customarily treat overdue responses to requests for admission as having been admitted in the absence of a showing of actual prejudice to the propounding party combined with no showing of excusable neglect by the responding party.

The language found in Rule 36 specifically permits the Court to extend the period of time to serve responses beyond 30 days and the Court feels it would be unjust not to allow that here given how minimal the delay was. This is in part based on the Court's unilateral decision to allow fax filing and service in an effort to accommodate the plaintiff without considering whether this would create confusion at the offices of counsel for the various defendants and without determining whether those offices were equipped to handle fax transmissions in a proper fashion. 2

Moreover, when confronting violations of the discovery rules (or alleged misuse of the discovery process) this Court strives to apply sanctions commensurate with the degree of neglect or wrongdoing viewed in light of any harm suffered by the aggrieved party. Sanctions as harsh as those requested by plaintiff's instant motion, which would in effect establish liability against defendant Panuelo, are generally issued only upon a finding of deliberate disregard of the rules or following a pattern of discovery abuse or related misconduct. See Pohnpei v. M/V Miyo Maru No. 11, 9 FSM Intrm. 316 (Pon. 2000).

In this case defendant Panuelo has made an adequate showing that his counsel did not come into possession of the requests until the day before they were due. While this did not provide grounds for waiting an additional 30 days to respond as he argues in his opposition papers, the fact is that responses were promptly filed 10 days after the requests were actually received. It also appears that any delay in providing responses was caused by defendant's counsel, not defendant himself, and it would be unjust to effectively punish him to the extent sought by plaintiff's motion under such circumstances without more.

There being no showing of actual prejudice to the plaintiff, the Court will allow defendant's responses to plaintiff's requests for admission (which defendant served by mail on May 19, 2000) to stand. Plaintiff's motion to have the requests for admission deemed admitted is therefore denied with prejudice.

Defendants FSM and Herbert Gallen initially filed a motion to dismiss plaintiff's complaint on June 18, 1997. This motion was never considered by the Court or ruled upon. The same defendants filed a second motion to dismiss, however, on January 12, 1999. This motion was based on different grounds than the first one. It was joined in by the other defendants and it was heard on July 15, 1999.

By way of the current motion, defendants FSM and Gallen renew their original motion to dismiss filed June 18, 1997. As with the other motions addressed by this order, however, neither the original motion nor the renewed motion are in compliance with the certification requirements of FSM Civil Rule 6(d). As with the plaintiff, there can be no doubt that the moving defendants are aware of the requirements of the rule since the renewed motion includes opposition to plaintiff's motion for summary judgment and that opposition cites Rule 6(d) and points to plaintiff's failure to comply with it as grounds for denying her motion. Page two of the opposition papers states as follows: "It has also unnecessarily taken up the time of opposing counsel and the court that could have been avoided had an effort been made by plaintiff to discuss her plans beforehand, as required by the Rules. For this reason alone the motion should be denied." Opp'n at 2.

As indicated by its ruling on plaintiff's motion for summary judgment above, the Court agrees that motions failing to comply with requirements of Rule 6(d) should be denied. It is for this reason that the Court hereby denies defendants' renewed motion to dismiss without prejudice.

If defendants choose to renew the motion and it references matters outside the pleadings requiring the Court to treat it as a motion for summary judgment under FSM Civil Rule 56, then defendants shall concurrently file a separate statement of undisputed material facts accompanied by competent supporting evidence under the terms fully described above in connection with the Court's ruling on plaintiff's motion for summary judgment. Any opposition by the plaintiff shall similarly comply with the requirement of a counter statement of disputed and undisputed material facts as set forth above.

Unlike the other motions addressed here, defendant Frank's motion is in fact accompanied by an affidavit that appears to be an attempt at compliance with Rule 6(d). It states that at about 2 p.m. on July 11, 2000, counsel for defendant Frank sent an e-mail to plaintiff requesting her agreement to acquiesce in his counter-motion for summary judgment and inviting her to respond by 2 p.m. on July 12, 2000, a mere 24 hours later. The Court does not find this to be a "reasonable effort" to obtain plaintiff's agreement. To the contrary, it is entirely unreasonable to expect anyone to be in a position to respond in so short a time frame to any request for information. This is even more so when the person is being asked to respond to a request that she acquiesce to the entry of judgment against her.

The supplemental papers filed by defendant Frank on July 20, 2000 demonstrate how the attempted communication falls short of that contemplated by the rule. Attached as Exhibit F is a return e-mail letter from plaintiff to defense counsel dated July 14, 2000 indicating that it was written just after plaintiff returned from out of town. The inference to be drawn is that plaintiff did not receive the e-mail from defense counsel until after the motion had already been filed. Moreover, in the responsive letter plaintiff indicates that she opposes defendant's "counter suit" inquiring as to why such a suit had not been filed years ago. Since the communication from defense counsel concerned a counter motion for summary judgment and not a "counter suit" it does not seem that plaintiff even understood what was being asked of her.

In determining what must be done to satisfy the requirements of Rule 6(d), the Court believes it is appropriate to consider the circumstances of a given case. Here, plaintiff is representing herself. If she indicates a misunderstanding of what is being asked of her, the Court believes a reasonable effort to obtain her agreement should include an explanation clarifying the issue involved and explaining the likely outcome of the motion from both a procedural and substantive perspective. If any party responds in an unreasonable manner or refuses to cooperate in good faith this should be brought to the Court's attention in the affidavit of compliance and the party will be dealt with appropriately to include sanctions if necessary.

On the grounds that defendant Frank's counter motion for summary judgment fails to comply with the terms of FSM Civil Rule 6(d), that motion is hereby denied without prejudice. If defendant chooses to renew the motion, he shall first make a reasonable attempt to explain the merits of his position to the plaintiff under circumstances designed to give her the opportunity to consider them thoughtfully and with an understanding of both the issues involved and the ramifications of her acquiescence or refusal to acquiesce. He should also consider her concerns and should reply in good faith with explanations of the undisputed facts and the law supporting his position. Further, he should supply her with documentary evidence and copies of cases supporting his position if he intends to present such evidence to the Court in support of the motion and believes it will assist in generating some sort of compromise on any issue in dispute.

Finally, if defendant Frank renews his motion for summary judgment he is ordered 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 he claims 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 following the example described above.

If defendant follows this format on a renewed motion, the plaintiff shall file her 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. Any opposing party may also include additional disputed and undisputed material facts if they feel it is warranted.

1. Please note that this method of calculating time was amended by the order of June 14, 2000. Pursuant to that order, the mail service date is to be used, even when documents are also faxed, and 30 calendar days (not two court days) are to be added to the prescribed period of time.

2. These concerns are what caused the Court to issue its order of June 14, 2000 extending the time for the service of discovery responses to a period of 30 additional days calculated from the date of mail service instead of the date of fax transmission.