Cuipan v Federated States of Micronesia [2001] FMSC 23; 10 FSM Intrm. 323 (App. 2001) (18 July 2001)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION

Cite as Cuipan v. FSM,
[2001] FMSC 23; 10 FSM Intrm. 323 (App. 2001)

ELIZABETH CUIPAN,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

APPEAL CASE NO. P4-2000
CRIMINAL CASE. NO. 2000-501

ORDER DISMISSING APPEAL

Andon L. Amaraich
Chief Justice

Decided: July 18, 2001

APPEARANCE:

For the Appellee:
Kim E. Greene, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei, FM 96941

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HEADNOTES

Appeal and Certiorari - Briefs and Record; Appeal and Certiorari - Dismissal
An appellant must serve and file a brief within 40 days after the date of the appellate clerk's notice that the record is ready, and if an appellant fails to file a brief within the time frame provided by the rule, or within the time as extended, an appellee may move for the appeal's dismissal. Cuipan v. FSM, [2001] FMSC 23; 10 FSM Intrm. 323, 325 (App. 2001).

Appeal and Certiorari - Briefs and Record; Appeal and Certiorari - Dismissal
It is within the court's discretion to dismiss an appeal for late filing of an appellant's brief. Among the factors which the court considers on a Rule 31(c) motion to dismiss are the length of delay in filing the brief; evidence of prejudice to the appellee; nature of the reasons for appellant's failure to file on time; and extent of appellant's efforts in mitigation. Cuipan v. FSM, [2001] FMSC 23; 10 FSM Intrm. 323, 325 (App. 2001).

Appeal and Certiorari - Briefs and Record
An appellant shall, not later than 10 days after the date of the appellate clerk's notice that the record is ready, serve on the appellee a designation of the parts of the record which the appellant intends to include in the appendix and a statement of the issues which the appellant intends to present for review. Cuipan v. FSM, [2001] FMSC 23; 10 FSM Intrm. 323, 326 (App. 2001).

Appeal and Certiorari - Briefs and Record; Appeal and Certiorari - Dismissal
An appeal may be dismissed when the appellant has failed for approximately 6 months after entry of the record ready notice, to serve on the appellee a designation of the parts of the record which appellant intends to include in the appendix and a statement of the issues which the appellant intends to present for review, both of which the appellant must file within 10 days after the date of the clerk's record ready notice. Cuipan v. FSM, [2001] FMSC 23; 10 FSM Intrm. 323, 326 (App. 2001).

Appeal and Certiorari - Dismissal
Good cause exists to grant an appellee's motion to dismiss when the appellant's failure to comply with the Rules has postponed the final resolution of the case, forestalled the possibility that the defendant would be confined to serve her sentence, and undermined the policy of finality. Cuipan v. FSM, [2001] FMSC 23; 10 FSM Intrm. 323, 327 (App. 2001).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

This matter comes before the Court on appellee Federated States of Micronesia's ("appellee") motion to dismiss appeal. For the reasons stated below, the Court will grant appellee's motion and dismiss the appeal.

Background

Appellant filed her notice of appeal on August 28, 2000. The Record Ready Notice entered by the Court on January 19, 2001 states that appellant's brief is to be filed with the Court within 40 days of the date of the notice, or on or about February 28, 2001.

On February 27, 2001 appellant filed her motion to enlarge the time within which to file her appeal brief. On April 9, 2001, this Court entered an order denying appellant's motion to enlarge the time within which to file her appeal brief due to the fact appellant had not sought and received permission from the Court to proceed pro se on her appeal. The Court denied appellant's motion without prejudice but granted her 20 days from the date of entry of the order to secure counsel licensed to practice before the Court. The 20 day period within which to comply with the order expired on April 30, 2001. As of the date of this order, no appearance of counsel has been filed on behalf of appellant.

On June 6, 2001, appellee filed a motion to dismiss appeal. Appellee argues that appellant failed to obtain counsel as ordered to do by the Court no later than April 30, 2001. Appellee also points out that appellant failed to comply with FSM Appellate Rule 30(b). Rule 30(b) requires that the appellant shall, not later than 10 days after the date of notice by the clerk of the appellate division pursuant to Rule 12(b) that the record is ready, serve on the appellee a designation of the parts of the record which the appellant intends to include in the appendix and a statement of the issues which the appellant intends to present for review. Appellee points out that the Record Ready Notice was entered by the Court on January 19, 2001, and as of June 6, 2001, appellant had failed to serve a proposed appendix on appellee.

Appellee further argues that appellant's conduct in noticing but not prosecuting her appeal in a timely manner and in conformity with the FSM Rules of Appellate Procedure has prejudiced appellee in two ways. First, by undermining the important policy of finality, pointing to Jonas v. Mobil Oil Micronesia, Inc., [1986] FMSC 23; 2 FSM Intrm. 164, 166 (App. 1986), and also by forestalling the possibility that appellant will be confined to serve her sentence, citing Kephas v. Kosrae, [1987] FMSC 10; 3 FSM Intrm. 248, 254 (App. 1987).

Appellant filed no opposition in response to appellee's motion to dismiss appeal.

Discussion

A. Failure to File Appellate Brief

Rule 31(a) of the FSM Rules of Appellate Procedure provides that the appellant shall serve and file a brief within 40 days after the date of notice by the clerk of the Appellate Division pursuant to Rule 12(b) that the record is ready. Rule 31(c) of the FSM Rules of Appellate Procedure provides that "if an appellant fails to file a brief within the time frame provided by this rule, or within the time as extended, an appellee may move for dismissal of the appeal."

As of the date of this order, appellant has still failed to file and serve a brief. After her request for an enlargement of time to file a brief was denied on April 9, 2001, appellant has taken no action to prosecute her appeal.

The procedural duties of an appellant under the appellate rules in preparing and filing briefs are straightforward. Nakamura v. Bank of Guam (I), [1993] FMSC 37; 6 FSM Intrm. 224, 227 (App. 1993). The failure to file a brief within the time prescribed by FSM Appellate Rule 31(a) entitles the appellee to move for dismissal of the appeal. Id. at 227 (citing FSM App. R. 31(c)). It is within the court's discretion whether to dismiss for late filing. Id. at 227. Among the factors which the court considers on a motion to dismiss under Rule 31(c) [are] the length of delay in filing the brief; evidence of prejudice to the appellee; nature of the reasons for appellant's failure to file on time; and extent of appellant's efforts in mitigation. Id. at 227 (citing Kephas v. Kosrae, [1987] FMSC 10; 3 FSM Intrm. 248 (App. 1987)); Alaphonso v. FSM, [1982] FMSC 22; 1 FSM Intrm. 209 (App. 1982).

In Kephas v. Kosrae, [1987] FMSC 10; 3 FSM Intrm. 248 (App. 1987), the appellant filed his brief two days after the date required by the clerk's notice. However, appellant failed to serve his brief upon the appellee until 82 days after the due date. The court, granting the appellee's motion to dismiss the appeal for lateness in serving the brief, stated that the delay in service of the defendant's brief delayed the submission of the government's brief because the service of the defendant's brief is the act which commences the running of the period that the government has to file and serve its brief. Kephas, 3 FSM Intrm. at 254 (citing FSM App. R. 31(a)). Further, each day of delay postponed the final resolution of the case, forestalling the possibility that the defendant would be confined to serve his sentence, and undermining the policy of finality. Id. at 254.

The Court's April 9, 2001 order required appellant to secure counsel within 20 days of the date of the order, or by April 30, 2001. Appellant's duty to file a brief did not cease once she filed a request for enlargement. The Court finds no excuse in appellant's failure to file a brief over three months after her request for an enlargement was denied.

B. Failure to Serve Designation of Record and Statement of Issues

FSM Appellate Rule 30(b) requires that the appellant shall, not later than 10 days after the date of notice by the clerk of the appellate division pursuant to Rule 12(b) that the record is ready, serve on the appellee a designation of the parts of the record which the appellant intends to include in the appendix and a statement of the issues which the appellant intends to present for review. Appellee points out that the Record Ready Notice was entered by the Court on January 19, 2001, and as of June 6, 2001, appellant had failed to serve a proposed appendix on appellee.

In Nakamura, supra, the court found that appellee was prejudiced by appellant's failure to serve on appellee a designation of the record and a statement of the issues to be presented on appeal. By not filing a notice of issues to be presented and contents of the appendix, appellee was forced to wait until receipt of appellant's brief to begin preparing a defense to the appeal. The Court stated appellant's failure to comply with the FSM Rules of Appellate procedure had the following effect:

The prejudicial effect of appellant's errors in this matter is significant, and not limited to the appellee. The court has already expended considerable effort in attempting to enforce appellant's compliance with the Appellate Rules. The court should not have to instruct attorneys that the Rules of Court mean what they say. An attorney practicing before this Court is expected to know the rules and abide by them. The Court is convinced that Mr. Schweiger's conduct in this case is deficient in both respects. His lack of procedural compliance has hindered the proper presentation of issues on appeal.

Nakamura, 6 FSM Intrm. at 229. Although the court did not dismiss the appeal, it warned the appellant's counsel that he had come dangerously close to having his client's case dismissed.

In Kephas, supra, the appellant had failed to file a transcript with his brief. The court stated that: "[w]e find the duty of the defendant clear in this matter, and that duty was not fulfilled. Rule 11 required the defendant to 'comply with the provisions of Rule 10(b)' and to 'take any other action necessary to enable the clerk to assemble and transmit the record.'" Kephas, 3 FSM Intrm. at 254. Appellant's failure to file a transcript, combined with appellant's late service of his brief upon the appellee, led the court to dismiss his appeal.

In the present case, appellant has failed to comply with FSM Appellate Rule 30(b) requiring the appellant, within 10 days after the date of notice by the clerk that the record is ready, to serve on the appellee a designation of the parts of the record which appellant intends to include in the appendix and a statement of the issues which the appellant intends to present for review. The record ready notice was entered by the Court on January 19, 2001. Appellant was required to serve the designation and a statement of the issues within 10 days. As of the date of this order, approximately 6 months after entry of the record ready notice, appellant has yet to serve the designation and a statement of the issues on the appellee.

Conclusion

Appellant has failed to prosecute her appeal in conformity with the requirements of the Rules of Appellate Procedure. The appellee and the Court have been prejudiced by appellant's failure to comply with the Rules of Appellate Procedure. Each day of delay caused by appellant's failure to comply with the Rules has postponed the final resolution of the case, forestalling the possibility that the defendant would be confined to serve her sentence, and undermining the policy of finality. Therefore, this Court finds that good cause exists to grant appellee's motion to dismiss, and it is hereby ordered that appellee's motion to dismiss is hereby granted. FSM Appellate Case No. P4-2000 is hereby dismissed.

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