Cite as Setik v. FSM ,
6 FSM Intrm. 446 (Chuuk 1994)

[6 FSM Intrm. 446]




CIVIL ACTION NO. 1993-1000


Richard H. Benson
Associate Justice

Decided:  July 6, 1994

For the Plaintiff:          R. Barrie Michelsen, Esq.
                                     Law Offices of R. Barrie Michelsen
                                     P.O. Box 1450
                                     Kolonia, Pohnpei FM 96941

For the Defendant:     Susan Bussey, Esq.
                                     Assistant Attorney General
                                     Office of the FSM Attorney General
                                     P.O. Box PS-105
                                     Palikir, Pohnpei FM 96941

[6 FSM Intrm. 447]
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Civil Procedure ) Motions; Civil Procedure ) Service
     Motions may be served on other parties prior to being filed.  Setik v. FSM, 6 FSM Intrm. 446, 448 (Chk. 1994).

Civil Procedure ) Motions
     A movant's inaction is insufficient to notify the court (or other parties) that a motion has been dropped.  Only a notice of withdrawal of motion will do that.  Otherwise a motion may be decided without hearing and without further request.  Setik v. FSM, 6 FSM Intrm. 446, 448 (Chk. 1994).

Judgment ) Relief from Judgment
     Relief from judgment cannot be granted when judgment was granted on two separate grounds and relief is only sought from one of the grounds.  However, if meritorious, the record may be corrected to show that one of the grounds ought to be stricken.  Setik v. FSM, 6 FSM Intrm. 446, 448 (Chk. 1994).

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RICHARD H. BENSON, Associate Justice:
     This case came before me on the motion of the government, filed May 2, 1994, seeking relief from the judgment entered March 30, 1994 pursuant to FSM Civil Rules 60(b)(3) and (6).

     On August 3, 1993, I granted the government's motion for a continuance of the trial date of August 4, but required payment by the government to the plaintiff of two days per diem and car rental.

     The trial was completed on January 21, 1994, and the case submitted for decision.  On February 24, 1994, the plaintiff filed his motion for an order to enter judgment in his favor for the amount claimed ) $1,300.00.  The ground for the motion was that the government had not paid all the costs imposed on August 3, 1993 and the appropriate sanction was to strike the evidence of the government.  The motion was supported by a memorandum of points and authorities and by affidavit.  No opposition was filed.

     On March 30, 1994, I filed findings of fact based on the evidence presented at trial, and concluded that the plaintiff was entitled to judgment of $1,300.00. The findings and conclusion then granted the pending motion to enter judgment, as an "additional ground" entitling the plaintiff to judgment.

     Judgment was entered on March 30, 1994.

     On May 2, the government filed its present Rule 60(b) motion.  Attached to the motion is a copy of a check for $178.00, dated February 17, 1994, payable to the plaintiff's counsel, and a copy of the letter of the defendant's counsel, dated February 21, 1994, transmitting the check to

[6 FSM Intrm. 448]

the payee.  The government states in its motion that the plaintiff filed his motion of February 24 after the amount of $178.00 had been paid, and that it thus constituted a misrepresentation by omission.

     The plaintiff points out in his opposition, and the record reflects, that his motion was dated and served on February 17, 1994.  Thus he correctly states that the amount was unpaid when the representation was made.

     The government also states in its Rule 60(b) motion that it had not filed an opposition because it was not served a filed copy of the motion.  However, a motion may be served prior to filing.  FSM Civ. R. 5(d).

     The plaintiff filed an opposition to the Rule 60(b) motion on May 16, acknowledging payment.  He writes, "The fact that the government finally complied fully with the assessment explains why the plaintiff dropped the matter and neither requested a hearing, nor requested that the court grant the motion because no opposition was filed."  Plaintiff's inaction is insufficient to notify the court (or other parties) that a motion has been dropped.  Only a notice of withdrawal of motion will do that.  Otherwise a motion may be decided without hearing and without further request.

     It is regrettable that the government failed to file an opposition; it is regrettable that the plaintiff failed to file a withdrawal of its motion once payment had been received, and even failed to correct the matter when he received the judgment.  Cf. MRPC Rule 3.3(a)(4)(Candor Toward the Tribunal)taking remedial measures).

     I conclude that the plaintiff's motion did not contain a misrepresentation when the motion was made and served.  Any misrepresentation was from the plaintiff's later failure to file a notice of withdrawal of the motion.  The service by mail of the unfiled motion was good service.  I cannot grant relief from the judgment, even if the additional ground justifying entry of the judgment ) the failure to pay plaintiff's per diem and car rental ) were stricken, because the judgment is still supported by the original findings of fact and a conclusion of law which this motion does not place in issue.

     The Rule 60(b) motion of the defendant is denied.

     However, the record manifestly requires correction:  the portion of the Findings of Fact and Conclusion of Law and Order Granting Motion of March 30, 1994 (specifically lines 8-16 of page 2) granting the plaintiff's motion for sanction is hereby stricken.

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