Cite as Enlet v. State of Truk ,
3 FSM Intrm. 459 (Truk, 1988)

[3 FSM Intrm. 459]




FSM CIV. NO. 1987-1006

Before Honorable Richard H. Benson
Associate Justice
FSM Supreme Court
April 13, 1988

     For the Plaintiff:            Maketo Robert, Esq.
                                            Attorney at Law
                                            P.O. Box 979
                                            Kolonia, Pohnpei 96941

     For the Defendants:     Jeanne H. Rayphand, Esq.
                                            Attorney General's Office
                                            State of Truk
                                            Moen, Truk 96942

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Civil Procedure - Motions
     The failure of the party's memorandum to set forth points and authorities constitutes a consent to the granting of the motion.  FSM Civ. R. 6(d).  Enlet v. Truk, 3 FSM Intrm. 459, 461 (Truk 1988).

Civil Procedure - Motions
     A memorandum of points and authorities filed by a party opposing a motion must set forth the law upon which the party relies and his theory as to the application of that law to the facts of the case.  Enlet v. Truk, 3 FSM Intrm. 459, 462 (Truk 1988).

[3 FSM Intrm. 460]

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RICHARD H. BENSON, Associate Justice:
     This matter came before the court on the motion of the defendants for an order dismissing the case pursuant to Rule 41(b) on the ground that the plaintiffs have failed to prosecute their case.  The plaintiffs responded, and the defendants replied. The motion was then submitted by the parties for decision without oral argument.

Procedural History
     This action alleging medical malpractice and wrongful death occurring  on or about October 23, 1986, was begun with the filing of a complaint on March 6, 1987. An answer was received by the Court on March 26, 1987 and filed on April 9, 1987.

     On July 17, 1987, the clerk issued and served a notice on the parties reciting the filing of the answer and notifying the plaintiffs that unless further action to prosecute the case was taken by September 28, 1987, it might be dismissed.

     On September 3, 1987, the clerk received the plaintiffs' request for  the entry of the default of the defendants.

     In October and November there was some activity concerning the timeliness of the answer, resulting in the acceptance of the answer as filed on April 9, 1987.

     On January 22, 1988, the clerk issued and served a notice identical to the July 17, 1987, notice stating that if no action were taken by the plaintiffs by March 30, 1988, the case "may be dismissed."

     On January 27, 1988, the present motion was filed.  It was served by mail on January 28, 1988.  On March 1, 1988, the plaintiffs filed requests for admissions going to the merits of the case, and a motion for enlargement of time to respond to the motion to dismiss reciting that the defendants did not oppose the enlargement. On the same day a "motion in opposition to motion to dismiss" was filed.

     On March 8, 1988, the defendants responded to the request for admissions, and replied to the opposition.  The following day an affidavit was filed as a part of this response.

     The matters recited above are pertinent to the merits of the motion.  The only factual addition presented by the motion is contained in an affidavit

[3 FSM Intrm. 461]

submitted on behalf of the defendants. it states that Dr. Kakkar "expects to leave Truk the first week of May 1988 and does not expect to return to Truk."

     The defendants have stated, "Plaintiffs left Truk without prosecuting their claim. Had they wanted to proceed with their case, it should have been prior to their departure from Truk."

     This statement is unsupported by affidavit.  The court has not drawn  any inference adverse to the plaintiffs, since the absence, if true, could be temporary or otherwise excusable.  Even though the attorney for the plaintiffs failed to respond to this point, the court cannot imply that the plaintiffs have abandoned their cause of action.

     The "motion in opposition to motion to dismiss" states the following as grounds:

Plaintiffs submit that the motion is unwarranted because they still want to proceed with their case.  Also submitted at the same time this motion is filed is a request for admission directed to the Defendants.

     Rule 6(d) of the Rules of Civil Procedure for this court requires that  a party opposing a motion shall file and serve a memorandum of points and authorities not later than 10 days after the service of the motion upon him.

     The rule then states that a failure by the opposing party to file a memorandum of points and authorities "shall constitute a consent to the granting of the motion."

     What the plaintiffs submitted in their "motion in opposition to motion to dismiss" is the only submission that could be considered a memorandum of points and authorities.  (The court is not considering the title of the document in any way adverse to the plaintiffs.)

     The following are definitions contained in Black's Law Dictionary, 4th edition:

Points.  The distinct propositions of law, or chief heads of argument, presented by a party in his paper-book, and relied upon on the argument of the cause.
     Authorities.  Citations to statutes, precedents, judicial decisions, and text-books of the law, made on the argument of questions of law or the trial of causes before a court, in support of the legal positions contended for, or adduced to fortify the opinion of a court or of a text writer upon any question.

[3 FSM Intrm. 462]

A leading legal encyclopedia states,

... a memorandum of points and authorities...indicat[es], among other things, the law on which he [an attorney] relies and his theory of its application to the facts of the case.

56 Am. Jur. 2d Motions 13 (1971).

     The first of the two sentences of the plaintiffs' motion quoted above only says that they do not want the case dismissed.  The second sentence states that a step in discovery was taken on the same day as their [untimely] opposition was filed.

     This document entitled "motion in opposition to motion to dismiss" is not a memorandum of points and authorities within the meaning of the rules.  Having not filed such a memorandum, the plaintiffs have consented to the granting of the motion to dismiss.  This could be the sole ground upon which the court might grant the motion.

     The recitation of the procedural history above is complete in describing what the record reflects.  It shows a continuing course of inattention and delay.  This course appears to be entirely caused by the attorney for the plaintiffs.  There is no excuse or explanation made for the delay.  The imminent departure of a party and potential witness constitutes actual prejudice suffered by the defendants because of the delay.

     On its merits the motion must be granted unless the attorney for the plaintiffs provides round-trip airfare and per diem for Dr. Kakkar to return to Truk for the trial, and unless the case comes to trial as set.

     The attorney for the plaintiffs must file by August 15, 1988, a statement that funds or a ticket for the air travel, and the per diem have both been delivered.  The statement must contain the acknowledgment of receipt by the attorney for the defendants.

     Trial shall commence at 9:00 o'clock a.m., Wednesday, September 28, 1988.

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