Cite as Elwise v. Bonneville Construction Co. ,
6 FSM Intrm. 570 (Pohnpei 1994)

[6 FSM Intrm. 570]






Andon L. Amaraich
Associate Justice

Decided:  November 10, 1994

[6 FSM Intrm. 571]

For the Plaintiff:                   John Brackett, Esq.
                                              P.O. Box 208
                                              Kolonia, Pohnpei FM 96941

For the Defendants:            Ronald Moroni, Esq.
(Bonneville Constr. Co.)     P.O. Box 1618
                                              Kolonia, Pohnpei FM 96941

For the Defendants:            Richard L. Counts, Esq.
(Pohnpei & PTA)                 Assistant Attorney General
                                               Office of the Pohnpei Attorney General
                                               Kolonia, Pohnpei FM 96941

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Civil Procedure ) Motions
     A filed stipulation to extend time to respond to a motion will be treated as a motion for an enlargement of time, but will be denied when filed after the time respond has expired and no excusable neglect has been shown.  Elwise v. Bonneville Constr. Co., 6 FSM Intrm. 570, 572 (Pon. 1994).

Torts ) Damages; Torts ) Negligence
     Punitive damages are not recoverable for ordinary negligence.  Elwise v. Bonneville Constr. Co., 6 FSM Intrm. 570, 572 (Pon. 1994).

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ANDON L. AMARAICH, Associate Justice:
     On September 30, 1994, defendant Bonneville Construction Company moved this court, pursuant to Rule 12(f) of the FSM Rules of Civil Procedure, to strike all claims for punitive damages in Plaintiff's First Amended Complaint.  Plaintiff's complaint seeks punitive damages from various parties for injuries incurred when plaintiff was struck by a vehicle owned and operated by he Pohnpei Transportation Authority.  According to Rule 12(f), "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial [sic], impertinent, or scandalous matter."  Defendant argues that plaintiff's claims are for ordinary negligence, and that such claims do not entitle plaintiff to punitive damages.  Defendant thus concludes that plaintiff's claims for punitive damages should be stricken as "immaterial" or impertinent."

     According to FSM Civil Rule 6, entitled Time, a party opposing a motion to strike must file and serve its response within ten days of receipt of service. Moreover, failure to respond within the allotted time constitutes a consent to the granting of the motion.  In the present case, defendant served his Motion to Strike upon plaintiff on September 30, 1994.  Plaintiff did not file his response within the prescribed ten day period.  Accordingly, plaintiff has "consented" to defendant's motion to strike all of plaintiff's claims for punitive damages.

[6 FSM Intrm. 572]

     On November 9, 1994, plaintiff filed a stipulation in which the parties agreed to extend the time in which to file an opposition to defendant's motion to strike. This stipulation, filed more than forty days after plaintiff first received notice of the motion to strike, was filed after the expiration of the period of time in which plaintiff was required to respond to Defendant's Motion to Strike.  According to FSM Civil Rule 6(b), after the time in which to respond to a motion has expired, the court cannot grant an enlargement of time unless a party moves the court to do so.  Moreover, even upon motion made to the court, the court may not permit a request for enlargement made after the time for responding has passed unless the requesting party demonstrates "excusable neglect" for his failure to act within the time established by the rules.  Id.

     Since the rules state that a request for an enlargement made after the time for answering has passed can only be granted by the court upon motion of the requesting party, the court will treat the parties' stipulation as a motion for an enlargement of time.  Even treating plaintiff's filing in this manner, however, the motion does not contain any basis for concluding that plaintiff's failure to act was due to "excusable neglect."  Instead, the motion merely states that the parties agree to extend the time in which to respond.  As stated above, however, that is a decision to be made by the court, not by the parties.  Accordingly, because plaintiff has not offered any justification for his failure to respond within the time permitted by the rules, plaintiff's motion for an enlargement of time must be denied.

     As a final matter, even if plaintiff had filed a timely opposition to Defendant's Motion to Strike, plaintiff still would not be entitled to punitive damages.  All of the counts that contain claims for punitive damages sound in ordinary negligence. The law is clear, however, that ordinary negligence will not justify the award of punitive damages.  Meitou v. Uwera, 5 FSM Intrm. 139, 146 (Chk. S. Ct. Tr. 1991).  Rather, "[p]unitive damages are recoverable for tortious acts where there is a finding that the tort was committed with actual malice, or deliberate violence."  Id. (citation omitted).  The facts recited in plaintiff's complaint contain no allegations that any defendant acted with "actual malice" or "deliberate violence."

     Thus, in addition to plaintiff's failure to respond to defendant's motion in a timely manner, it is also apparent that plaintiff's pleadings cannot support a claim for punitive damages.  Based on these reasons, it is hereby ordered that defendant's motion to strike all of plaintiff's claims for punitive damages is granted.

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