Bank of Guam v Ismael [1997] FMSC 35; 8 FSM Intrm. 197 (Pon. 1997) (7 August 1997)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Bank of Guam v Ismael, [1997] FMSC 35; 8 FSM Intrm. 197 (Pon. 1997)

BANK OF GUAM,
Plaintiff,

vs.

HIROSHI ISMAEL and MITCHIKO ISMAEL,
Defendants.

CIVIL ACTION NO. 1997-068

ORDER

Richard H. Benson
Associate Justice

Decided: August 7, 1997

APPEARANCES:

For the Plaintiff:
Daniel J. Berman, Esq.
P.O. Box 1491
Kolonia, Pohnpei FM 96941

For the Defendant:
Delson Ehmes, Sr., Esq.
P.O. Box 1018
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure; Civil Procedure - Motions
A showing of excusable neglect is required to grant a request for enlargement of time made after the time allowed had elapsed. Counsel's failure to make a note to remind him of the answer's due date and his attention to other matters, both personal and professional, does not establish excusable neglect. Bank of Guam v. Ismael, [1997] FMSC 35; 8 FSM Intrm. 197, 198 (Pon. 1997).

Civil Procedure; Civil Procedure - Motions
A defendant's motion to enlarge time to file an answer may be granted, even though excusable neglect has not been shown, when it would be conducive to a speedy and inexpensive determination of the action, the delay has not been long, and no prejudice to the plaintiff is apparent. Bank of Guam v. Ismael, [1997] FMSC 35; 8 FSM Intrm. 197, 198 (Pon. 1997).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

The defendants filed their Motion for Enlargement on July 21, 1997 seeking an enlargement to that date to file their answer. The answer was filed July 21, 1997.

The complaint was filed on June 16, 1997, and the summons issued the same day. There is nothing in the record to show the date of service, only the defendant's motion reveals that the answer is late. The enlargement is requested after the time allowed had elapsed. Thus Civil Rule 6(b) governs, which requires excusable neglect for granting the enlargement.

The lateness is caused by the defendants' counsel's failure to make a note to remind him of the answer's due date and his attention to other matters, both personal and professional. Counsel's affidavit fails to establish excusable neglect.

Even so, other considerations mitigate against denying the motion. Most important, denial would not be conducive to a "speedy and inexpensive determination" of the action. FSM Civ. R. 1. A denial would be followed by further action by the defendants as the case was prosecuted.

Secondly, the delay has not been long, and no prejudice to the plaintiff is apparent. The plaintiff had not begin default proceedings nor has it opposed the Motion for Enlargement. As a practical matter the answer, unaccompanied by the motion would probably have been unchallenged by the plaintiff.

For the reasons stated, the motion is granted.

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