FSM SUPREME COURT TRIAL DIVISION

Cite as FSM Social Sec. Admin. v. David, 11 FSM Intrm. 262j (Pon. 2002)

[11 FSM R. 262j]

FSM SOCIAL SECURITY ADMINISTRATION,

Plaintiff,

vs.

LORDES DAVID dba DELCO CONSTRUCTION CO.,

Defendant.

CIVIL ACTION NO. 2001-021

ORDER SETTING HEARING

Andon L. Amaraich
Chief Justice

Decided: November 25, 2002

APPEARANCES:

        For the Plaintiffs:              Stephen V. Finnen, Esq.
                                                 Law Offices of Saimon & Associates
                                                 P.O. Box 1450
                                                 Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure – Motions

A written motion, other than one which may be served 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 court order. Such an order may for cause shown be made on ex parte application. FSM Social Sec. Admin. v. David, 11 FSM Intrm. 262j, 262L (Pon. 2002).

Civil Procedure – Motions; Civil Procedure – Service

Civil Rule 6(d) addresses when a written motion must be filed. It does not address notice or service, which is addressed by Rule 5. FSM Social Sec. Admin. v. David, 11 FSM Intrm. 262j, 262L (Pon. 2002).

Civil Procedure – Motions; Civil Procedure – Service

Every written motion and similar paper must 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 claims for relief against them shall be served in the manner provided for service of summons in Rule 4. FSM Social Sec. Admin. v. David, 11 FSM Intrm. 262j, 262L (Pon. 2002).

Civil Procedure – Motions; Constitutional Law – Due Process

Except in extraordinary circumstances, due process requires that parties receive notice of

[11 FSM R. 262k]

motions because all parties must be served with all papers unless the party is in default, and the default is for a failure to ever appear at any stage of the proceeding. FSM Social Sec. Admin. v. David, 11 FSM Intrm. 262j, 262L (Pon. 2002).

Civil Procedure – Motions; Civil Procedure – Service

When the plaintiff has failed to establish that the relief requested in its motion may be had on an ex parte basis, the court will order the plaintiff to serve its motion on the defendant. FSM Social Sec. Admin. v. David, 11 FSM Intrm. 262j, 262L (Pon. 2002).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

On October 30, 2002 plaintiff filed an ex parte motion for a writ of garnishment and writ of attachment. The court, in this order, hereby schedules the motion for hearing on Thursday, December 19, 2002. To the extent that plaintiff's motion seeks relief ex parte, it is denied.

On June 25, 2001, judgment was entered1 in favor of plaintiff and against defendant in the amount of $21,650.16. On July 2, 2002, an amended order in aid of judgment was entered by the court2 which required defendant to make payments of $500 a month.

On October 30, 2002, plaintiff filed an ex parte motion for a writ of garnishment and writ of attachment. Supported by the affidavit of Alexander Narruhn, plaintiff's motion states that the judgment has not been satisfied, and that it is believed that defendant is owed money by the Pohnpei State Government. Plaintiff's motion also states it is believed that defendant had attempted to leave Pohnpei permanently, and that it appears that defendant has been attempting to dissipate its assets and has created bank accounts outside of Pohnpei.

In the affidavit of Alexander Narruhn, attached to plaintiff's motion, Mr. Narruhn avers that defendant is owed money by the Pohnpei State Government for work defendant performed to build the new tennis courts for Pohnpei State, as well as other work. Mr. Narruhn believes that the sum of $27,000 may be soon paid by Pohnpei State to defendant. Mr. Narruhn further avers that defendant Lordes David has recently separated from her husband, who happens to be the general manager of Delco Construction Co. Mr. Narruhn believes that it is questionable whether Delco Construction Co. will continue as a business entity, and that "defendant's general manager has put much of defendant's funds from the project with the State of Pohnpei at Bank of Guam." Mr. Narruhn avers that "plaintiff believes that such actions constitute an attempted dissipation of the assets of defendant so notice will defeat the purpose of securing guarantee of payment from defendant thus the ex parte motions." See Aff. of Alexander Narruhn at para. 9 (emphasis added).

Plaintiff argues that ex parte motions are allowed, citing FSM Civil Rule 6(d). However, plaintiff cites no case law supporting this assertion. Rule 6(d) states, in pertinent part:

A written motion, other than one which may be served ex parte and notice of the

[11 FSM R. 262l]

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.

FSM Civ. R. 6(d) (emphasis added).

Rule 6 of the FSM Rules of Civil Procedure addresses time. Rule 6(d) addresses when a written motion must be filed. Rule 6 does not address notice or service. Rule 5 does, however, address service:

(a) 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 claims for relief against them shall be served in the manner provided for service of summons in Rule 4.

It must be assumed that, except in extraordinary circumstances, due process requires that parties receive notice of motions. It has been held that "[a]ll parties must be served with pleadings and papers unless the party is in default, and the default is for a failure to ever appear at any stage of the proceeding." Bank of the FSM v. Bergen, 7 FSM Intrm. 595, 596 (Pon. 1996) (emphasis added). Since defendant in this case has participated in the action,3 the court does not consider defendant to be in default since defendant has appeared at certain stages of the proceeding.

The court finds that plaintiff has failed to establish that the relief requested in its motion may be had on an ex parte basis. The court further finds that Rule 6(d) does not provide the necessary authority for plaintiff to make its motion on an ex parte basis. Although plaintiff has claimed that there may be a danger of defendant "hiding" the money defendant may receive from Pohnpei State (and thus failing to pay make the payments defendant has already been ordered to pay), the court does not believe plaintiff has established that this danger is so great that plaintiff should not have to comply with the FSM Rules of Civil Procedure.

Therefore, IT IS HEREBY ORDERED that a hearing on plaintiff's motion for a writ of garnishment and writ of attachment is hereby scheduled for Thursday, December 19, 2002 at 10:00 a.m. at the FSM Supreme Court, Palikir Pohnpei FM 96941. Plaintiff is ordered to serve a copy of its ex parte motion upon defendant within five (5) days of the date of entry of this order, and to file a certificate of service with the court. If defendant chooses to file any paper in response to plaintiff's motion, it must do so within five (5) days of the date of service of the motion by plaintiff.

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Footnotes:

1 Pursuant to a joint motion for entry of stipulated judgment.

2Pursuant to a joint motion for an amended order in aid of judgment.

3 Defendant has signed a joint motion for entry of stipulated judgment, joint motion for order in aid of judgment, and a joint motion for an amended order in aid of judgment.

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