Damarlane v Federated States of Micronesia [1996] FMSC 40; 7 FSM Intrm. 383 (Pon. 1996) (8 February 1996)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Damarlane v Federated States of Micronesia, [1996] FMSC 40; 7 FSM Intrm. 383 (Pon. 1996)

IGNACIA DAMARLANE, KADALINO DAMARLANE,
BENSIS DAMARLANE, GREGORIO DAMARLANE,
JOAQUIM CANTERO and MATTEO PRIMO,
Plaintiffs,

vs.

FEDERATED STATES OF MICRONESIA GOVERNMENT,
POHNPEI STATE GOVERNMENT and
POHNPEI TRANSPORTATION AUTHORITY,
Defendants.

CIVIL ACTION NO. 1995-121

ORDER

Richard H. Benson
Associate Justice

Decided: February 8, 1996

APPEARANCES:

For the Plaintiffs:
Mary Berman, Esq.
P.O. Box 163
Kolonia, Pohnpei FM 96941

For the Defendant (FSM):
Carole Rafferty, Esq.
Chief of Litigation
Office of the FSM Attorney General
P.O. Box PS-105
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Sanctions
Rule 11 sanctions can be granted only for violating one of the three elements of Rule 11 -- is the document 1) signed, or 2) is to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it well grounded in fact and warranted by law, or 3) is it interposed for any improper purpose such as delay or harassment. Damarlane v. FSM, [1996] FMSC 40; 7 FSM Intrm. 383, 384 (Pon. 1996).

Civil Procedure - Motions
The FSM Civil Procedure Rules do not provide for the filing of replies to oppositions to motions, but they do not prohibit them either. It has been the general practice of the trial division to accept such filings although in a particular case the court may direct otherwise. Damarlane v. FSM, [1996] FMSC 40; 7 FSM Intrm. 383, 385 (Pon. 1996).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This matter is before me on the plaintiffs' Motion for Sanctions filed January 9, 1996. It is based on Rule 11 of the FSM Rules of Civil Procedure. The grounds for this motion are that the FSM 1) filed a reply to the plaintiffs' opposition to the defendants' motion for summary judgment without requesting leave to do so, and 2) the reply contained no new matter. The plaintiffs seek reasonable compensation for their attorney's 30 minutes spent reading the offending document to "determine [they state] whether the reply raised any new issues to which a response was required."

This motion must be denied because of the failure of the plaintiffs to provide any authority in support of their contention.

1. Rule 11 is concerned with three elements:

a) Whether the document is signed,

b) Whether, "to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law . . d

c) Whe) Whether iter it is interposed for any improper purpose such as delay or harassment.

The plaintiffs do not contend that the reply fao comith any of these elements.

2. The plae plaintifintiffs support their motion by stating, "when a pleading, motion or paper is not warranted by existing law, sanctions may be imposed under Rule 11." One citation for this statement is Robinson v. National Cash Register Co., [1987] USCA5 289; 808 F.2d 1119 (5th Cir. 1987). The facts of that case fail to support the contention of the plaintiffs. In Robinson sanctions were awarded against the plaintiffs whose complaint was dismissed as to one defendant on the ground that no possibility of liability existed, and dismissed as to the second defendant on the ground of res judicata.

The plaintiffs also cite 2A James W. Moore et al., Moore's Federal Practice 11.02 [3] nn.17-24 (2d ed. 1989). This citation gives no support to plaintiffs' contention that a reply is improper. [The plaintiffs failed to observe FSM GCO 1983-4 in their citations to Rule 11, Robinson and Moore's Federal Practice.]

3. The plaintiffs also gave as authority an order in Iso Nahnken of Nett v. United States, Civil Action No. 1993-026 (FSM Sup. Ct. Tr. Div. Pon. May 4, 1994). That order furnishes no support because it is clearly a management directive for that case only.

4. Counsel has not provided, nor have I found a single case granting sanctions under Rule 11 of the FSM Rules of Civil Procedure for filing an improper paper, as distinguished from papers defective because one or more of the elements set out in "1" above are violated.

The motion must also be denied because it has been the general practice in the Trial Division of this Court in the four states to accept for filing replies to oppositions. This practice exists although Rule 6(d) of the Rules of Civil Procedure does not provide for it. Neither does Rule 6(d) prohibit the practice.

The motion is accordingly denied.

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