Cite as Bank of FSM v. Bergen,
7 FSM Intrm. 595 (Pon. 1996)

[7 FSM Intrm. 595]






Martin Yinug
Associate Justice

Decided:  September 27, 1996

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

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Civil Procedure ) Service
     All 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).

Civil Procedure ) Sanctions
     An attorney who argues that his motion need not be served on an opposing party or an attempt be made to obtain that party's consent to the motion because the opposing party has defaulted when no default judgment has been entered may be sanctioned.  Bank of the FSM v. Bergen, 7 FSM Intrm. 595, 597 (Pon. 1996).

[7 FSM Intrm. 596]

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MARTIN G. YINUG, Associate Justice:

I.  Rule 5(a)
     In May 1994, the parties to this debt collection case jointly moved for entry of judgment.  Then, as now, the Plaintiff was represented by counsel admitted to practice before this Court, while the Defendants appeared pro se.  The Plaintiff has two "show cause" motions pending.  On July 30, 1996, the Court ruled that it would consider the motions to show cause in due course, but only after the Plaintiff has complied with the last sentence of Rule 6(d) of the FSM Rules of Civil Procedure.

     The Plaintiff has subsequently moved for an order to vacate the July 30 order, but did not serve its motion on the Defendants.  The Plaintiff argues that is not bound by Rule 6(d) and should not be required to make a reasonable effort to obtain the agreement of the Defendants to its motion, because they defaulted. The Plaintiff cites FSM Rule of Civil Procedure 5(a), which provides in pertinent part:  "No service need to [sic] be made on the parties in default for failure to appear . . . ."

     The Plaintiff has cited no FSM cases interpreting this portion of Rule 5(a), and the Court has located none on its own.  The Court therefore looks for guidance to those authorities that interpret the nearly identical rule in the Federal Rules of Civil Procedure in force in the United States.  Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 444 (App. 1994).

     In order for the last sentence of Rule 5(a) to apply to suspend a party's service requirement, two conditions must be met: the opposing or adverse party must be in default, and the default must be for a failure to appear.

The requirement that all parties be served with pleadings and papers does not apply to a party in default for failing to appear.  This means a failure ever to appear, not just a failure to appear at a particular stage of the proceedings or a failure to file a responsive motion.

28 Federal Procedure 65:137 (L. Ed. 1984).

     Examination of the record reveals that neither condition exists.  There is no default judgment against the Defendants.  At no time did the Plaintiff request entry of default or of default judgment.  Examination of the record also reveals that the Defendants have appeared.  "An appearance ordinarily is an overt act by which the party comes into court and submits to the jurisdiction of the court."  Id.  The Defendants appeared before the entry of judgment.  A minute entry indicates that both Defendants appeared for a hearing on a motion on April 20, 1994.  The parties subsequently moved on May 2 for entry of judgment, which was entered on May 6, 1994.  Another minutes entry shows that Defendant Selihter Bergen appeared for a hearing on a motion for an order to show cause on July 10, 1995.

     Since neither condition appears in the record, there is no refuge for the Plaintiff in Rule 5(a).  Even if the Court were to adopt the Plaintiff's semantic distinction between "opposing parties" and "adverse parties," the motion would fail.  The Motion to Vacate the July 30 Order is denied.

[7 FSM Intrm. 597]

II.  Rule 11
     Counsel for the Plaintiff makes an elaborate argument for his position, but can have made no effort to determine if a basis for his argument exists in the application of the black letter of Rule 5(a) to the facts of record.  Since the Defendants have appeared, and no default judgment was pending against them, the Plaintiff could not have filed the motion with the belief that there is good ground to support it ) the facts are patently at odds with Rule 5(a).  Necessarily, the Plaintiff's Motion to Vacate the July 30 Order was not made after a reasonable inquiry by counsel and is not well-grounded in fact and warranted by existing law or a good-faith extension of current law.  Berman v. Kolonia Town, 6 FSM Intrm. 433, 435 (App. 1994).  The Court notes that Plaintiff's counsel on the same day filed the same motion, identical word-for-word, excepting only the captions, in two other collection cases.1  This is litigation by form, rather than by reasoned legal analysis.  Finally the Court notes the complete failure to serve the adverse or opposing parties with its motion.

     The Court therefore sanctions R. Barrie Michelsen the sum of $25.00, pursuant to FSM Rule of Civil Procedure 11.  This sanction is against Mr. Michelsen personally and shall not be billed to the client.  Payment of the sanction shall be lodged with the Chief Clerk of Court within thirty (30) days of service of this Order.

III.  Rule 61
     The sanction is ordered for filing the Motion to Vacate.  The history of this case indicates actions in which substantial rights may have been affected.  See FSM Civ. R. 61.  The Plaintiff has dodged several bullets in this case, perhaps because the Defendants have appeared pro se.  The complaint, filed on November 4, 1992, was not served within the 120 days mandated by FSM Rule of Civil Procedure 4(j).  A notice of possible dismissal was entered on March 18, 1993, for failure to file a proof of service of the summons and complaint.  The Plaintiff filed proofs showing service on April 22, 1993, more than 30 days after the notice issued, and nearly six months after the complaint was filed.
     In an apparent hurry to obtain money, the Plaintiff on April 28, 1993, obtained an agreement from Selihter Bergen to a stipulated order in aid of judgment.  This stipulation was quite remarkable for no judgment was entered at the time.  This stipulation was filed only five days after the Complaint was served on Selihter Bergen.

     Plaintiff later moved for another order in aid of its, as of then, non-existent judgment, on August 27, 1993.  In February 1994, Plaintiff filed another motion for an order of its, as of then, still non-existent judgment.  This motion was supported by an affidavit of counsel asserting, inter alia, that a judgment was entered.  There was no judgment entered as of the date of the first hearing on a motion for an order in aid of judgment, held on April 20, 1994.  Indeed, at the hearing it was the Court who pointed out to Plaintiff's counsel the absence of a judgment.  The Plaintiff finally procured an agreement for a joint entry of judgment on May 2, 1994, which was entered on May 6, 1994.  As noted, there was no request for entry of default or for entry of a default judgment against these Defendants.  Were the Defendants represented by counsel, some of these errors may have been raised before today.

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1.  Bank of the FSM v. Hepel, Civil Action No. 1992-156; Rayel v. William, Civil Action No. 1996-030.