Elymore v Walter [2001] FMSC 13; 10 FSM Intrm. 267 (Pon. 2001) (26 June 2001)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Elymore v. Walter,
[2001] FMSC 13; 10 FSM Intrm. 267 (Pon. 2001)

[2001] FMSC 13; [10 FSM Intrm. 267]

JASON ELYMORE and AMATO ELYMORE,
Plaintiff

vs.

PEDRONIO WALTER,
Defendant.

CIVIL ACTION NO. 1999-025

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: June 26, 2001

APPEARANCES:

For the Plaintiffs:
Craig D. Reffner, Esq.
Law Offices of Fredrick L. Ramp
P.O. Box 1480
Kolonia, Pohnpei FM 96941

For the Defendant:
Salomon Saimon, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Attorney, Trial Counselor and Client
A lawyer must keep a client reasonably informed about the status of a matter. The failure of the counsel of record to inform his clients of an order striking their punitive damages count if new counsel did not file an appearance by March 30, 2001, would appear not to discharge that duty. Elymore v. Walter, [2001] FMSC 13; 10 FSM Intrm. 267, 268 (Pon. 2001).

Judgments ; Relief from Judgment
Relief from judgment under Rule 60 is addressed to the court's discretion. The discretion is not an arbitrary one to be capriciously exercised, but a sound legal discretion guided by accepted legal principles. Generally, the court's discretion does not reach neglect of counsel, which, without more, is not a basis for Rule 60(b) relief, except when the neglect itself is excusable. Elymore v. Walter, [2001] FMSC 13; 10 FSM Intrm. 267, 268-69 (Pon. 2001).

Judgments ; Relief from Judgment
Because clients are responsible for their counsel's conduct, the proper focus is upon whether

[10 FSM Intrm. 268]

the neglect of the clients and their counsel was excusable. Clients must be held accountable for their attorney's acts or omissions. Elymore v. Walter, [2001] FMSC 13; 10 FSM Intrm. 267, 269 (Pon. 2001).

Judgments ; Relief from Judgment
The conduct of both client and counsel is relevant to a determination of excusable neglect under Rule 60(b)(1). Elymore v. Walter, [2001] FMSC 13; 10 FSM Intrm. 267, 269 (Pon. 2001).

Judgments ; Relief from Judgment
When even if former counsel's neglect were excusable, plaintiffs' failure to secure new counsel in a more timely manner is conduct sufficient in itself to preclude relief under Rule 60(b)(1), the motion for relief from judgment must be denied based on the plaintiffs' own conduct. Elymore v. Walter, [2001] FMSC 13; 10 FSM Intrm. 267, 269-70 (Pon. 2001).

* * * *

COURT'S OPINION

MARTIN YINUG, Associate Justice:

On May 7, 2001, plaintiffs filed in a single submission four motions, including a motion for relief from the judgment entered on April 26, 2001. On May 14, 2001, the court received the defendant's response. Plaintiff's motion for relief from judgment is denied. The other motions are denied as moot.

The events which gave rise to the striking of the plaintiffs' punitive damages claim and entry of judgment in accordance with the July 21, 2000, findings of fact and conclusions of law are set out in the order and memorandum of April 26, 2001. Plaintiffs, by their new counsel, Craig Reffner, move for relief from judgment under Rule 60(b)(1) of the FSM Rules of Civil Procedure, which provides that "the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding" based on "mistake, inadvertence, surprise, or excusable neglect." The rule provides that such a motion must be brought within a reasonable time, not to exceed one year, from the date of entry of judgment. Here, the order and judgment from which plaintiffs seek relief was entered on April 26, 2001. Plaintiffs promptly filed their motion eleven days later on May 7, 2001. The motion was timely.

The basis for plaintiffs' motion is that their former counsel did not inform them of the March 8, 2001, order. That order provided that if new counsel did not file an appearance by March 30, 2001, plaintiff's punitive damages count would be stricken and judgment entered in accordance with the findings of fact and conclusions of law entered on July 21, 2000. Plaintiff Amato Elymore states in his affidavit attached to the motion that his prior counsel "never advised me about the Court's March 8, 2001 Order or the filing deadline of March 30, 2001 and I had absolutely no knowledge about the Order or filing deadline." The court accepts this as true.

Rule 1.4(a) of the Model Rules of Professional Conduct, made applicable to attorneys practicing before this court by General Court Order 1983-2, provides pertinently that "[a] lawyer shall keep a client reasonably informed about the status of a matter." Plaintiffs' prior counsel, Ron Moroni, as then-counsel of record, had a duty to inform his clients of the content of the March 8, 2001, order. To all appearances, he did not discharge that duty.

Relief from a judgment under Rule 60 is addressed to the court's discretion. Walter v. Meippen, [1996] FMSC 5; 7 FSM Intrm. 515 (Chk. 1996). At the same time, "[t]he discretion is not an arbitrary one to be capriciously exercised, but a sound legal discretion guided by accepted legal principles." Assman v. Fleming, 159 F.2d 332, 226 (8th Cir. 1947). Generally, the court's discretion does not reach neglect

[10 FSM Intrm. 269]

of counsel, which without more is not a basis for Rule 60(b) relief. Mid-Pacific Constr. Co. v. Senda, [1995] FMSC 21; 7 FSM Intrm. 129, 135 (Pon. 1995) ("[T]he universal approach of the United States federal courts in applying their identical Rule 60(b) to these cases is to preclude Rule 60(b) relief where the complained-of injuries result solely from the carelessness or neglect of the moving party, or of the moving party's counsel.") The exception to this rule is where the neglect itself is excusable. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, [1993] USSC 35; 507 U.S. 380, 394[1993] USSC 35; , 113 S. Ct. 1489, 1499, 123 L. Ed. 2d 74, 89 (1993) (analyzing "excusable neglect" in Rule 60(b)(1) terms although case under discussion involved corresponding bankruptcy rule). The Pioneer court emphasized that clients are responsible for the counsel's conduct, and held that "the proper focus is upon whether the neglect of respondents [i.e., the clients] and their counsel was excusable." Pioneer, 507 U.S. at 397, 113 S. Ct. at 1499, 123 L. Ed. 2d at 90-91 (emphasis in the original). In commenting on Pioneer, Prof. Moore notes the significance of this case as it stands for a "clarifi[cation] that clients must be held accountable for the acts or omissions of their attorneys." 12 JAMES WM. MOORE, MOORE'S FEDERAL PRACTICE 60.41[2], at 60-94 (3d ed. 1999) (footnote omitted).

Under Pioneer, the conduct of both client and counsel is relevant to a determination of excusable neglect under Rule 60(b)(1). See also Securities & Exch. Comm'n v. McNulty, [1998] USCA2 95; 137 F.3d 732, 740 (2d Cir. 1998), cert. denied sub nom., Shanklin v. Securities & Exch. Comm'n, 525 U.S. 931, 119 S. Ct. 340, 142 L. Ed. 2d 281 (1998) (default resulting from attorney's willful conduct allowed to stand where client had made no efforts to contact his attorney during the time from commencement of the case until default was entered nearly a year later). Here, there is no showing that neglect of former counsel was excusable so as to justify relief under Rule 60(b) of the FSM Rules of Civil Procedure.

Beyond that, and reconsidering all the facts and circumstances of this case, the plaintiffs themselves must shoulder significant responsibility for the dismissal of their punitive damages claim. The fact remains that plaintiffs, by their former counsel, requested and were granted a 90 day continuance on October 2, 2001, "to allow the undersigned [i.e., former counsel] time to assist the Plaintiff to find alternative counsel to complete this matter." Motion for Continuance Time [sic] at 2 (Oct. 2, 2000). The record is barren of any illumination as to the division of labor anticipated between plaintiffs and their former counsel in securing new counsel. But plaintiffs were well aware of their need for a new attorney and have demonstrated that they were capable of contacting Fred Ramp's office, one of Pohnpei's leading law firms, and ultimately securing that office's professional services. If they had done this in October of 2000 instead of February of 2001, there would have been no necessity for moving for a second continuance. Thus the attendant state of affairs which arose when plaintiffs' former counsel did not give them notice of the March 8, 2001, ruling on the motion for the second continuance would not have arisen had plaintiffs acted expeditiously to secure new counsel.

Relying on Paul v. Hedson, [1993] FMSC 29; 6 FSM Intrm. 146, 147 (Pon. 1993), this court in its April 26, 2001, order and memorandum, which was issued simultaneously with the judgment challenged by the plaintiffs, noted its reluctance to hold a client responsible for counsel's mistakes, even though it is plain that a client in the usual case must be held to account for such errors. The April 26, 2001, order relied in part on the conduct of the plaintiffs themselves as the court then understood it in dismissing the plaintiffs' punitive damages claim and entering judgment. Elymore v. Walter, [2001] FMSC 67; 10 FSM Intrm. 166, 168-69 (Pon. 2001). That order took as a given that plaintiffs had knowledge of the deadline imposed by the prior March 8, 2001, order. Now it appears that the plaintiffs had no knowledge of that deadline. Yet, having reconsidered all the facts and circumstances of this case the court still concludes that the conduct of the plaintiffs themselves in failing to secure new counsel in a reasonably expeditious fashion was a material link in the chain of events which led to the dismissal of their punitive damages claim. The court makes this point to emphasize that the denial of the motion for reconsideration remains consistent with this court's reluctance as stated in Paul v. Hedson to penalize a client for mistakes of counsel. Even if former counsel's neglect were excusable, plaintiffs' failure to secure new counsel in

[2001] FMKSC 5; [10 FSM Intrm. 270]

a more timely manner is conduct which is sufficient in itself under Pioneer to preclude relief under Rule 60(b)(1) of the FSM Rules of Civil Procedure. Ultimately, plaintiffs are being penalized for their own conduct.

Accordingly, the court concludes that the neglect of the plaintiffs' former counsel is not excusable so as to justify relief under Rule 60(b)(1) of the FSM Rules of Civil Procedure. Moreover, even if former counsel's neglect were excusable, the court would deny the motion for relief from judgment based on the plaintiffs' own conduct. Plaintiffs' motion for relief from judgment is therefore denied. The plaintiffs' other pending motions are denied as moot.

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