THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as Damarlane v. Pohnpei Supreme Court Appellate Division,
9 FSM Intrm. 601 (Ponape 2000)

[9 FSM Intrm. 601]

KADALINO DAMARLANE,
Plaintiff,

vs.

POHNPEI SUPREME COURT APPELLATE
DIVISION, CHIEF JUSTICE JUDAH JOHNNY,
ASSOCIATE JUSTICES IOANNIS KANICHY
and NELSON JOSEPH,
Defendants.

CIVIL ACTION NO. 2000-049

ORDER DENYING MOTION TO DISMISS

Andon L. Amaraich
Chief Justice

Decided:  December 19, 2000

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

For the Defendants:     Catherine L. Wiehe, Esq.
                                       Staff Attorney
                                       Pohnpei Supreme Court
                                       P.O. Box 1449
                                       Kolonia, Pohnpei FM 96941

*    *    *    *

[9 FSM Intrm. 602]

HEADNOTES
Civil Procedure ) Motions
     When the parties are not in disagreement on every issue addressed by a motion, compliance with FSM Civil Rule 6(d) would have served its intended purpose of generating a compromise without court intervention.  Damarlane v. Pohnpei Supreme Court Appellate Division, 9 FSM Intrm. 601, 603 (Pon. 2000).

Civil Rights
     A deprivation of rights under the FSM Civil Rights statute requires a finding of willfulness.Damarlane v. Pohnpei Supreme Court Appellate Division, 9 FSM Intrm. 601, 603 (Pon. 2000).

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 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.Damarlane v. Pohnpei Supreme Court Appellate Division, 9 FSM Intrm. 601, 603-04 (Pon. 2000).

*    *    *    *

COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:
     This matter comes before the Court on defendants' September 7, 2000 motion to dismiss for failure to state a claim upon which relief may be granted.  The motion seeks an order dismissing plaintiff's August 10, 2000 complaint which asserts two causes of action.  The first cause of action requests the issuance of a writ of mandamus compelling the Pohnpei State Supreme Court appellate division to issue a written decision in a civil action involving oral argument heard by it in late 1997. Plaintiff contends that Pohnpei law requires decisions in appellate matters to be rendered within 120 days following the close of oral arguments in an appeal.  The second cause of action alleges that plaintiff's civil rights have been violated by the defendants' failure to issue the decision in a timely manner.

     On September 7, 2000, the same day the motion was filed, a written opinion of the Pohnpei Supreme Court appellate division addressing the subject civil action was entered and filed.  In view of this defendants contend that the entire complaint should be dismissed with prejudice for failure to state a claim upon which relief may be granted.

     Plaintiff, on the other hand, urges that the filing of the written opinion beyond the time period prescribed by Pohnpei law proves that he was deprived of due process rights entitling him to at least nominal damages.  Plaintiff's opposition does not argue against defendants' contention that the relief requested by the first cause of action has mooted by the entry of the written decision.

     Because, defendants' motion to dismiss fails to confront the merits of plaintiff's second cause of action and plaintiff's opposition fails to address the strength of defendants' position on the first cause of action, the parties have argued past one another.  Complicating matters, plaintiff asserts that liability has been proven by the issuance of the written decision, instead of pointing out that his second cause of action states a claim upon which relief can be granted.

[9 FSM Intrm. 603]

     From what appears in the papers, the parties are not in disagreement on every issue addressed by the motion.  Consequently, compliance with FSM Civil Rule 6(d) would have served its intended purpose of generating a compromise without Court intervention.  Rule 6(d) states in pertinent part as follows:

   (d)  For Motions--Affidavits.  A written motion, other than one which may be 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. . . .

     Unfortunately, the moving party did not make a reasonable effort to obtain the agreement of the opposing party on the disposition of the matters raised by the motion.  If this had been done, all indications suggest that the parties would have either stipulated to a dismissal of the first cause of action or come to a clear understanding that that cause of action had been mooted by the issuance of the opinion.  Under either scenario, the motion presently before the Court would not have been necessary as it pertains to the first cause of action.

     As to the second cause of action, a discussion between counsel should have yielded an understanding that a deprivation of rights under the FSM Civil Rights statute requires a finding of willfulness, 11 F.S.M.C. 701(1).  Since the filing and entry of the opinion in question does not conclusively establish this element, the parties would have likely recognized that the question of liability has not been resolved and that the second cause of action appears to state a claim for relief.

     Hence, if counsel for either party attempted to communicate with the other in good faith it is unlikely that the instant motion would have been filed.  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 its terms.

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

[9 FSM Intrm. 604]

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.

Calvary Baptist Church, 9 FSM Intrm. at 239-40.

     Furthermore, if compliance with Rule 6 had been made in this case, plaintiff's counsel could have explained her position on damages and the parties could have either discussed settlement at that point and/or made known to the other side how they intended to proceed.  This of course would have brought the case one step closer to resolution instead of seeing it held up needlessly in law and motion matters.

     Accordingly, the pending motion is hereby denied without prejudice on the grounds of failure to comply with FSM Civil Rule 6(d).
 
                                                                                                                                                                                                                                                                                                           
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