Cite as Paul v. Hedson ,
6 FSM Intrm. 146 (Pohnpei 1993)

[6 FSM Intrm. 146]






Martin Yinug
Associate Justice

Hearing:  July 15, 1993
Decided:  August 6, 1993

For the Plaintiff:            Delson Ehmes, Esq.
                                       Directing Attorney
                                       Micronesian Legal Services Corporation
                                       P.O. Box 129
                                       Kolonia, Pohnpei  FM 96941

For the Defendants:     Kevin Shea
                                       State Attorney General
                                       Office of the Pohnpei Attorney General
                                       Kolonia, Pohnpei  FM 96941

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[6 FSM Intrm. 147]

Attorney, Trial Counselor and Client ) Sanctions; Civil Procedure ) Dismissal
     Dismissal of actions for attorney misconduct is generally disfavored in light of the judicial preference for adjudication on the merits whenever possible so as to allow parties a reasonable opportunity to present their claims and defenses. Paul v. Hedson, 6 FSM Intrm. 146, 147 (Pon. 1993).

Attorney, Trial Counselor and Client ) Sanctions
     The court may sanction an attorney by its inherent authority to enforce compliance with procedural rules whenever it is apparent that the attorney has failed to abide by such rules without good cause.  Paul v. Hedson, 6 FSM Intrm. 146, 148 (Pon. 1993).

Attorney, Trial Counselor and Client ) Sanctions; Civil Procedure ) Discovery
     An attorney who fails to make timely requests for enlargement of time to complete discovery beyond the deadline set by court order; who has someone other than the client sign answers to interrogatories; and who fails to serve the answers properly on opposing counsel while filing a proof of service with the Court is sanctionable on the Court's own motion.  Paul v. Hedson, 6 FSM Intrm. 146, 148 (Pon. 1993).

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MARTIN YINUG, Associate Justice:
     The defendants in this action filed a Motion for Dismissal on July 15, 1993, and plaintiff has responded with an Opposition to the Motion.  For the reasons described herein defendants' motion is hereby denied, and on the Court's own motion counsel for plaintiff is hereby sanctioned in the amount of $100.

     The defendants cite several instances where plaintiff, by counsel, failed to comply with the FSM Rules of Civil Procedure and this Court's order dated June 9, 1993.  FSM Civil Rule 41(b) provides that a defendant may move for dismissal of an action "for failure of the plaintiff to prosecute or to comply with these rules or any order of court."  Plaintiff's counsel, while offering excuses, does not contest that the infractions cited by defendants are substantively accurate.  Therefore, the Court would have adequate grounds to exercise its discretion to dismiss the case.

     The Court, however, is mindful of the guiding principle that  adjudication should be on the merits and parties afforded reasonable opportunity to contest their claim.  Truk Transport Co. v. Trans Pacific Import Ltd., 3 FSM Intrm. 440, 443 (Truk 1988); Lonno v. Trust Territory (III), 1 FSM Intrm. 279, 281 (Kos. 1983). Here, the policy in favor of resolving litigation on the merits outweighs the policy which would bind the client for the neglect of counsel.  I am reluctant, therefore, to close the door on plaintiff's personal injury claims in this case as punishment for the dilatory actions of her attorney.  Had there been no efforts by Mr. Ehmes in recent weeks to correct the procedural violations committed, my reluctance would have been overcome in favor of applying the penalty sought by the government.  In light of the recent compliance in moving this case forward to trial, I will deny the government's request for dismissal in favor of sanctioning plaintiff's counsel directly.

[6 FSM Intrm. 148]

     Sanctions are appropriate where the Court is satisfied that an attorney has failed to honor court directives and rules without good cause.  See Leeruw v. Yap, 4 FSM Intrm. 145, 150 (Yap 1989) ("Courts have inherent power, and an obligation, to monitor the conduct of counsel and to enforce compliance with procedural rules.")  The Court chooses to employ this disciplinary measure for the following reasons:

     (1)  Mr. Ehmes failed to make a timely request for further enlargement of time to complete discovery as required by FSM Civil Rule 6(b).  By order of the Court issued June 9, 1993, plaintiff was granted until June 30 to complete discovery.  It was not until July 15, 1993, when a status conference was held in this case, that Mr. Ehmes requested more time.  FSM Civil Rule 6(b)(1) directs that the Court may grant an extension of time "if the request therefor is made before the expiration of the period originally prescribed or as extended by previous order."

     An extension may also be granted upon motion after the expiration of the specified period "where the failure to act was the result of excusable neglect." FSM Civ. R. 6(b)(2).  Mr. Ehmes informed the Court that he was unable to complete discovery by June 30 because of the difficulty in procuring off-island experts and arranging for a stenographer to take depositions by that date.  This would have been a valid reason for a motion for further enlargement under Rule 6(b)(1), filed before June 30.  However, it does not explain why counsel chose to wait until July 15 to inform the Court and opposing counsel of the reason for the delay.  I do not find this neglect to inform to be "excusable," as it caused unnecessary inconvenience to the Court and the government at the status conference.

     (2)  Plaintiff did not file an answer to defendants' first set of interrogatories, filed February 18, 1993, until May 14, 1993.  Even then the filing was not proper as someone other than plaintiff herself signed the answers, and the government has stated by affidavit that the answers were never served on the Attorney General's office.  Failure to serve opposing counsel while filing a proof of service with the Court to the effect that service was completed is a serious infraction of the rules and will not go unnoticed by the Court.  Such conduct constitutes prejudice to opposing counsel and misrepresentation to the Court.

     The Court does not accept Mr. Ehmes' excuse that the answers were filed late and originally signed by a trial counselor because the plaintiff was unavailable to sign them herself.  It is the attorney's responsibility in such instances to request an enlargement of time until plaintiff's signature can be obtained.  Difficulties in contacting a client do not warrant complete abrogation of the requirements of Civil Rule 33(a).  McDougall v. Dunn, 468 F.2d 468 (4th Cir. 1972) (holding that the fact that defendant was in a different state and not readily accessible to his attorney did not excuse the attorney's signature of answers to interrogatories).

     Attorneys appearing before this Court have a responsibility to abide by the Rules of Court.  The Rules themselves provide for some degree of flexibility in application, in the sound discretion of the Court with good cause appearing.  In this case, counsel for plaintiff had available to him means of notifying the Court and defendants in advance of difficulties in completing discovery and obtaining additional time.  He chose, however, to act first and seek approval later.  The Court instructs counsel that this practice and the routine assumption of relaxation of the rules of procedure is unwarranted.  I therefore deem it appropriate to sanction Mr. Ehmes in the amount of $100, payable to the Court by August 31, 1993, such amount to be then delivered to counsel for defendants as reimbursement for the costs and inconvenience in obtaining answers to discovery and preparing for status conference.

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