Kosrae v Worswick [2000] FMSC 18; 9 FSM Intrm. 536 (Kos. 2000) (18 September 2000)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Kosrae v Worswick, [2000] FMSC 18; 9 FSM Intrm 536 (Kos. 2000)

STATE OF KOSRAE,
Plaintiff,

vs.

DANIEL P. WORSWICK, DANCHI CONSTRUCTION
COMPANY and PETER CHRISTIAN,
Defendants.

_______________________________________________

CIVIL ACTION NO. 1994-2004

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: September 18, 2000

APPEARANCES:

For the Plaintiff:
April D. Douglas, Esq.
Assistant Attorney General
Office of the Kosrae Attorney General
P.O. Box 870
Tofol, Kosrae FM 96944

For the Defendants (Worswick & Danchi):
Douglas Parkinson, Esq.
P.O. Box 2069
Kolonia, Pohnpei FM 96941

For the Defendant (Christian):
Andrea Hillyer, Esq.
P.O. Drawer D
Kolonia, Pohnpei FM 96941

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HEADNOTES

Attorney, Trial Counselor and Client - Admission to Practice
Admission to appear pro hac vice may be granted conditioned upon counsel's later providing to the court certificates of good standing in the jurisdictions where she is permitted to practice. Kosrae v. Worswick, [2000] FMSC 18; 9 FSM Intrm. 536, 538 (Kos. 2000).

Civil Procedure - Dismissal; Civil Procedure - Motions; Judgments - Relief from Judgment
A motion to vacate an order of dismissal under Rule 60(b) that is not brought under any of the six enumerated bases set out in Rule 60(b), and reurges the same points made in the response to the original motion to dismiss is plainly not a Rule 60(b) motion, but is considered as a motion for reconsideration. Kosrae v. Worswick, [2000] FMSC 18; 9 FSM Intrm. 536, 538 (Kos. 2000).

Civil Procedure - Dismissal
When the court dismissed the case in material part on the basis of the plaintiff's failure to proceed with "all due dispatch," as required by the court's order and when, with the benefit of hindsight, "all due dispatch" was an inadequate choice of directives because it did not set out precisely what was expected of counsel and when, and when although the plaintiff did nothing to prosecute the case for nearly five years, the court did not intervene to get the case back on track before the notice of trial setting was issued, reconsidering all the circumstances, the better course is to vacate the dismissal. Kosrae v. Worswick, [2000] FMSC 18; 9 FSM Intrm. 536, 538 (Kos. 2000).

Civil Procedure - Sanctions
Arguing the facts is different from representing the facts as being what they are not. That is simple prevarication sanctionable under Civil Procedure Rule 11. Kosrae v. Worswick, [2000] FMSC 18; 9 FSM Intrm. 536, 539 (Kos. 2000).

Civil Procedure - Joinder
Third-party practice under Rule 14 is the procedure by which a defendant can bring in as a third-party defendant one alleged to be liable to him for all or part of plaintiff's claim against him. Rule 14 is intended to provide a mechanism for disposing of multiple claims arising from a single set of facts in one action expeditiously and economically. On the other hand, Rule 19(a) is directed to factually complex, multi-party litigation where the joinder issue involves an analysis of greater subtlety. Kosrae v. Worswick, [2000] FMSC 18; 9 FSM Intrm. 536, 539 (Kos. 2000).

Civil Procedure - Dismissal
A party is precluded from moving to dismiss on the basis of a stale summons and amended complaint, since by not filing a Rule 12(b) motion on the point, nor asserting it in his answer to the amended complaint, he has waived any defect in this regard. Kosrae v. Worswick, [2000] FMSC 18; 9 FSM Intrm. 536, 539 (Kos. 2000).

Civil Procedure - Dismissal; Judgments - Default Judgment
Failure by a plaintiff to meet deadlines set out in an order may result in dismissal under Civil Procedure Rule 41(b), while a similar failure by a defendant may be met with an entry of default under Civil Procedure Rule 55(a). Kosrae v. Worswick, [2000] FMSC 18; 9 FSM Intrm. 536, 540 (Kos. 2000).

* * * *

COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

The court has received the following:

1. Motion for Joinder, filed July 25, 2000, by defendant Peter Christian ("Christian");

2. Motion to Appear for a Particular Case, filed August 2, 2000, by counsel seeking to appear on behalf of plaintiff state of Kosrae ("Kosrae");

3. Motion to Vacate Order of Dismissal as to Defendants Daniel P. Worswick and Danchi Construction Company, and for Reinstatement of Cause as to All Parties, filed August 2, 2000;

4. Defendant Peter Christian's Reply to Plaintiff's Motion to Vacate Order of Dismissal as to Defendants Daniel P. Worswick and Danchi Construction Company, filed August 10, 2000;

5. Opposition to Defendant Christian's Motion for Joinder and Motion for Rule 11 Sanctions, filed August 10, 2000;

6. Opposition to State of Kosrae's Motion to Vacate Order of Dismissal and Motion for Rule 11 Sanctions, filed August 10, 2000;

7. Plaintiff's Opposition to Motion for Rule 11 Sanctions, filed August 14, 2000;

8. Reply to Opposition to Motion for Joinder; and Opposition to Motion for Sanctions; and Motion to Dismiss, filed August 29, 2000.

The motion to appear pro hac vice is granted for the time being, pending the court's ruling, after hearing, on Worswick's motion for sanctions. Also, pursuant to Rule IV(A) of the Rules for Admission to Practice Before the Supreme Court of the Federated States of Micronesia, admission is conditional upon counsel's providing to the court on or before November 1, 2000, certificates of good standing in the jurisdictions where she is permitted to practice.

Kosrae moves to vacate the order of dismissal under Rule 60(b). The motion is not brought under any of the six enumerated bases set out in Rule 60(b), and reurges the same points made in Kosrae's response to Worswick's motion to dismiss. It is plainly not a Rule 60(b) motion. The court considers it as a motion for reconsideration.

The motion to vacate the dismissal could hardly have been brought in a manner calculated to make it less persuasive, given the apparent misrepresentations contained in it. At the same time, the court dismissed the case in material part on the basis of Kosrae's failure to proceed in the case with "all due dispatch," as required by the court's order of November 25, 2000. With the benefit of hindsight, "all due dispatch" was an inadequate choice of directives for Kosrae, because it did not set out precisely what was expected of counsel and when. This order endeavors to provide adequate supervision for Kosrae. Also a consideration is that although Kosrae did nothing to prosecute the case for nearly five years, the court did not intervene to get the case back on track before the notice of trial setting was issued on February 1, 1999. Reconsidering all the circumstances, the court concludes that the better course is to vacate the dismissal. Christian's motion to "join" Worswick was not a factor that the court considered in vacating the dismissal.

Kosrae's motion for reconsideration makes representations which, at best, are unsubstantiated, and which are the subject of Worswick's Rule 11 motion. Arguing the facts is different from representing the facts as being what they are not. That is simple prevarication sanctionable under Rule 11 of the FSM Rules of Civil Procedure. Worswick's Rule 11 motion will be set for hearing at the court's next sitting in Kosrae. Counsel will appear and explain the basis in fact for the statement "[t]he state, by its letter of December 21, 1994, indicated to the court that it was ready for trial and wished to proceed to trial," Motion to Vacate at 4 (Aug. 2, 2000); and for the statement "there were ongoing discussions between the Attorney General's office and the law office of defense counsel, Douglas Parkinson, from 1994, 1995, 1996, and then into 1999 while the State awaited a trial date from the Court." Id. at 5. Mr. Ronald Bickett shall also file with the court no later than Friday, September 29, 2000, a sworn affidavit in which he will set out the dates of his departure and the dates of his return for all periods of time during which he was out of the FSM from November 25, 1999, until February 24, 2000, for the purposes of medical treatment and/or official Kosrae state business. Mr. Bickett will also appear at the hearing on the Rule 11 motion. After hearing, the court will consider whether to impose sanctions.

Christian's motion for joinder is denied as moot. However, along with his response to the motion for joinder, Worswick has also filed another motion for Rule 11 sanctions against Christian, on the theory that Rule 19(a) of the FSM Rules of Civil Procedure, under which Christian brings the motion to join, does not apply, and that even if it did, any action would be barred by laches and the applicable statute of limitations. To the court's mind, both Christian and Worswick misconstrue Rule 19(a). As between Christian and Worswick at the time Christian filed his motion to "join," the posture of the case presented a Rule 14(a) issue, not one under Rule 19(a). "Third-party practice [under Rule 14] . . . is the procedure by which a defendant can bring in as a third-party defendant one alleged to be liable to him for all or part of plaintiff's claim against him." 6 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1441 at 286 (2d ed. 1990). "In short, Rule 14 is intended to provide a mechanism for disposing of multiple claims arising from a single set of facts in one action expeditiously and economically." Id. § 1442, at 291 (footnotes omitted) (emphasis added). On the other hand, Rule 19(a) is directed to factually complex, multi-party litigation where the joinder issue involves an analysis of greater subtlety. See generally 7 Wright, Miller, & Kane, supra, § 1604 (1986), and specifically the discussion of Haas v. Jefferson Bank of Miami Beach, [1971] USCA5 636; 442 F.2d 394 (5th Cir. 1971), at 58-60 of § 1604. The fact that Worswick had been dismissed out based on Kosrae's conduct at the time Christian moved to "join" Worswick after he had been dismissed does not change the intrinsic nature of Christian's claim against Worswick. In any event, the point here for the purposes of the motion for sanctions is that Rule 14(a) generally permits what Christian sought to do. This obviates any Rule 11 concerns. Worswick's motion for sanctions against Christian is denied.

Finally, both Worswick and Christian foresee potential statute of limitation and laches issues. In order to facilitate adherence to the case management schedule set out below, any motions addressing these points will not be filed by any party until after the discovery cutoff date of December 4, 2000, since motions of this sort are not among those enumerated in Rule 12(b) of the FSM Rules of Civil Procedure.

Christian moves, contingent upon the court's denying Kosrae's motion to vacate the dismissal, to dismiss the amended complaint as to him on the basis of a stale summons and complaint. Since the court grants Kosrae's motion, this motion is moot. But in any event, Christian would be precluded from moving to dismiss on the basis of the stale summons, since by not filing a Rule 12(b) motion on the point, nor asserting it in his answer to the amended complaint (the answer and amended answer were filed on July 25, 2000, the only substantive difference being a date change and a date amendment in paragraphs 5 and 6 respectively under "Count I - Fraud"), Christian waived any defect in this regard. FSM Civ. R. 12(h)(1); but see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1347, at 533 (1969).

It is ordered as follows:

1. The order of dismissal and the order setting scheduling deadlines entered July 4, 2000, is vacated.

2. Worswick will file responses to Kosrae's amended complaint, and the cross-claims set out in Christian's amended answer no later than Friday, October 6, 2000.

3. All discovery, including responses, as among all parties, will be completed no later than Friday, January 5, 2001.

4. All pretrial motions will be filed no later than Friday, February 2, 2001. Provided that no pretrial motion is completely dispositive, the court will then set this case for trial as soon thereafter as possible.

5. A hearing on Worswick's motion for Rule 11 sanctions against Kosrae will be scheduled during the court's next scheduled sitting in Kosrae. Ms. April Douglas and Mr. Ronald Bickett shall both appear at the hearing. Mr. Bickett shall file no later than Friday, September 29, 2000, a sworn affidavit in which he will set out the dates of his departure and the dates of his return for all periods of time during which he was out of the FSM from November 25, 1999, until February 24, 2000, for the purposes of medical treatment and/or official Kosrae state business.

6. Ms. April Douglas is admitted to practice for purposes of this cause, conditioned upon her providing certificates of good standing in the jurisdictions in which she is now admitted to practice, and until such time as the court holds a hearing on Worswick's motion for sanctions.

7. Christian's motion to join is denied as moot.

8. Christian's motion to dismiss Kosrae's amended complaint is denied as moot.

9. Worswick's motion for sanctions as to Christian is denied.

10. Failure by plaintiff to meet any of the deadlines set out in this order may result in dismissal under Rule 41(b) of the FSM Rules of Civil Procedure, while a similar failure by a defendant may be met with an entry of default under Rule 55(a) of the FSM Rules of Civil Procedure.