KOSRAE STATE COURT
FEDERATED STATES OF MICRONESIA

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NED NITHAN  
RAYMOND SIGRAH
RAYNOLD SEYMOUR
Plaintiffs,

vs.

BLACK CONSTRUCTION CO.
Defendant.

CIVIL ACTION NO.
61-96
62-96
63-96

JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE

FINDING

     Plaintiffs' Counsel, Mr. Mathias Mongkeya, and the defendant Black Construction Co., and defense counsel, Mr. Patrick J. Otter appeared this morning for the trials of these captioned civil actions above.

     Before trial began this Court took notice of failure on plaintiffs' counsel to file pretrial brief summarizing his case, witnesses, evidences, proofs as ordered by this Court to both sides at a pretrial hearing a week before.

     The defense counsel, Patrick J. Otter did file a pretrial brief on defendant's behalf.
After a brief addressing of : apparent violation of this Court's order by plaintiffs' counsel, and taking more time to make a statement regarding proper use of, this court's rules, this Court

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decided to issue warning to plaintiffs' counsel because he did not file timely pre trial brief.

     At trial time plaintiffs' counsel did not have any witness to call. The files revealed all the plaintiffs' clients/witnesses were properly served notice to appear for trial at 9:00 a.m. Plaintiffs' counsel was properly served notice for trial. None of them appear at 9:00 a.m. for trial. Plaintiffs' counsel at this point made a statement that he also informed his clients about this trial but did not know why they were not in court.
     The Defendant then moved to dismiss with prejudice these consolidated cases. This Court agreed to dismiss with prejudice all three civil actions for failure to prosecute.

 DISCUSSION

 I. Procedure

     Civil Actions 61-96, 62-96, 63-96 all involved a common question of law or fact. Circumstances are all the same. The allegations are directed at one defendant. The only thing different is three individual plaintiffs. The court had informed the parties during pretrial on July 17, 1996 its intention to consolidate all three cases for trial without objection from the parties. In fact the parties were informed then. Rule 42(a) of this Court's Rule of Civil Procedure prescrbes:

(a)Consolidation:When actions  involving a common question of law or fact  are pending  before the Court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; it may make such orders concerning -

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     proceedings therein as may tend to avoid unnecessary costs
     or delay.

Because of this rule the Court consolidated these cases for trial. The plaintiffs' counsel did not object to consolidate these cases fox trial. The defendant moved also to consolidate the three civil actions for trial. The plaintiffs' counsel did not object to consolidate these cases for trial.

I I . TRIAL

     Pretrial was held on July 17, 1996 about one week before this trial setting. At the pretrial, counsels were informed and agreed to trial at 9:00 a.m. this morning. Counsels were also encouraged by this Court to seek reasonable settlement if possible. Also at pretrial counsels' briefly informed the Court about their possible witnesses.

     Counsel for plaintiffs submitted his clients would be witnesses on their behalf. Defense counsel named "Lupalik Wesley" as witness for the defense. Defendant had his witness in court ready for trial.

     This trial began by plaintiffs' counsel addressing the court that witnesses for plaintiffs were not available for reasons he could not know.

     Before any party can show or appear in Court on their behalf proper service is required under the rule. Plaintiffs' Counsel was properly served notice of trial. Rule 5(b) of the Court's Rules of Civil Procedure. The requirement of this rule was met by the Court served on plaintiffs' counsel the notice.of trial. Also this Court instructed both sides at the pretrial hearing on July 17, 1996 that trial was set for July 24, 1996, today. File in these : civil actions show notices of hearings were sent to each plaintiff also.  During pretrial

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counsel for the plaintiffs acknowledged his clients would be ready for trial today. None of these plaintiffs except thier counsel is available to go forward with trial in their behalfs. Unfortunately, plaintiffs' counsel could not proceed to trial.

     The defendant moved to dismiss with prejudice these consolidated civil actions for failure of plaintiffs to proceed for trial without witnesses.

III. CONCLUSION

     This Court is very disappointed and disturbed because these are actions which plaintiffs are probably rightfully owed a little bit of money each by the defendant. Unfortunately, plaintiffs did not show at trial time to testify or support their case in this Court

     All that have been said pursuaded me to find judgment for the defendant for failure of the plaintiff to prosecute. These consolidated cases for trial are therefore ordered dismissed with prejudice.

     It is so ordered this 24th day of July, 1996

                              _________/s/______________
                              Aliksa B. Aliksa
                              Associate Justice

     Entered this 25th day of July, 1996.

                              ________/s/_______________
                              Chief Clerk of Court, Kosrae
                                                                                                                                                                                                                                                                                                           
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