Adams v Island Homes Construction Inc [2001] FMSC 50; 10 FSM Intrm. 159 (Pon. 2001) (18 April 2001)

SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA

Cite as Adams v. Island Homes Constr., Inc.
[2001] FMSC 50; 10 FSM Intrm. 159 (Pon. 2001)

[10 FSM Intrm.159]

YVETTE ETSCHEIT ADAMS, d/b/a POHNPEI
ACE HARDWARE, and ADAMS
BROTHERS CORPORATION,
Plaintiffs,

vs.

ISLAND HOMES CONSTRUCTION, INC.,
FSM DEVELOPMENT BANK and PAULUS PERMAN,
Defendants.

CIVIL ACTION NO. 2000-012

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: April 18, 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 (Island Homes):
Salomon Saimon, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendant (FSM Dev. Bank):
James P. Woodruff, Esq.
P.O. Box M
Kolonia, Pohnpei FM 96941

For the Defendant (Perman):
Martin F. Mix, Esq.
P.O. Box 143
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Motions; Civil Procedure - Pleadings
Pleadings are defined as the complaint, answer, reply to a counterclaim, answer to a cross-claim, third-party complaint, and third-party answer. No other pleadings are allowed, except that the court may order a reply to an answer or a third-party complaint. No other paper will be considered a pleading

[10 FSM Intrm. 160]

and a motion in any form cannot stand as a pleading. Adams v. Island Homes Constr., Inc., [2001] FMSC 50; 10 FSM Intrm. 159, 161 (Pon. 2001).

Civil Procedure - Motions; Civil Procedure - Pleadings
A motion to strike a memorandum supporting a motion and a response to an opposition is not a motion to strike matter from pleadings subject to Rule 12(f), but rather, falls under the general motion practice of Rule 7(b) which provides that an application to the court for an order shall be by motion and shall set forth the relief or order sought. Adams v. Island Homes Constr., Inc., [2001] FMSC 50; 10 FSM Intrm. 159, 161 (Pon. 2001).

Civil Procedure - Motions
Because the Rules must be construed to secure the just, speedy, and inexpensive determination of every action the court may deny striking a memorandum filed 18 days after the motion it supported when the memorandum provides the court with additional relevant information. Adams v. Island Homes Constr., Inc., [2001] FMSC 50; 10 FSM Intrm. 159, 161 (Pon. 2001).

Civil Procedure - Motions
The court may consider and will not strike a response by a party other than the one against whom a motion is directed since any party may oppose another party's motion. Adams v. Island Homes Constr., Inc., [2001] FMSC 50; 10 FSM Intrm. 159, 161 (Pon. 2001).

Civil Procedure - Default and Default Judgments; Judgments - Relief from Judgment
An entry of default may be set aside for good cause shown. Rule 55 distinguishes between relief from default, which is an interlocutory matter, and relief from a judgment by default, which involves final judicial action. Thus, a more liberal standard is applied to reviewing entry of default, as opposed to default judgments. Adams v. Island Homes Constr., Inc., [2001] FMSC 50; 10 FSM Intrm. 159, 162 (Pon. 2001).

Civil Procedure - Default and Default Judgments
The court may refuse to set aside a default when the default is due to willfulness or bad faith or where the defendant offers no excuse at all for the default. Adams v. Island Homes Constr., Inc., [2001] FMSC 50; 10 FSM Intrm. 159, 162 (Pon. 2001).

Civil Procedure - Default and Default Judgments
An entry of default may be vacated when the defendant relied on the representation of another defendant's employee that it would handle his defense in the case, and that after he learned that this was not so he obtained his own counsel who then filed the motion to vacate the entry of default. Adams v. Island Homes Constr., Inc., [2001] FMSC 50; 10 FSM Intrm. 159, 162 (Pon. 2001).

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COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

There are two motions now before the court, which should have been ruled upon earlier. The court apologizes for the delay.

The first is the motion to vacate the entry of default as to defendant Paulus Perman ("Perman") which was filed on November 6, 2000, and the second is plaintiffs' motion to strike, which was filed on November 30, 2000. The motion to vacate entry of default is granted, and the motion to strike is denied. The court considers the latter motion first, since it bears on the motion to vacate the entry of

[10 FSM Intrm. 161]

default.

a. Motion to strike

Plaintiffs move under Rule 12(f) to strike Perman's November 24, 2000, memorandum in support of his motion to vacate entry of default, and the November 17, 2000, response of the FSM Development Bank ("the Bank") to the plaintiffs' opposition to Perman's motion to set aside the entry of default. Rule 12(f) by its terms applies to "pleadings," and provides in relevant part that the court "may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." "Pleadings" are defined by Rule 7(a) as the complaint, answer, reply to a counterclaim, answer to a cross-claim, third-party complaint, and third-party answer. Rule 7 expressly states that "[n]o other pleading shall be allowed, except that the court may order a reply to an answer or a third-party complaint." "No other paper will be considered a pleading except those specifically named in Rule 7(a). A motion in any form cannot stand as a pleading." 2 James Wm. Moore et al., Moore's Federal Practice 7.02[1][b], at 7-7 (3d 999)1999) (footnotes omitted).

The submissions to which plaintiffs' motion to strike under Rule 12(f) is directed aremorandum in support of a motion and a response to an opposition to a motion. As such, they they are not subject to Rule 12(f). Rather, plaintiffs' request to strike falls under the general motion practice provision of Rule 7(b) of the FSM Rules of Civil Procedure, which provides in pertinent part that "[a]n application to the court for an order shall be by motion . . . and shet foheh the reliefelief or order sought." Plaintiffs request that Perman's memorandum in support of his motion to vacate the enf defbe stricken as untimely, since it was filed 18 days after the motion. Rule 1 of t of the FShe FSM Rules of Civil Procedure provides that the Rules will be "shall be construed to secure the just, speedy, and inexpensive determination of every action." Permitting the memorandum in support of the motion works toward this end by providing the court with additional relevant information. The motion to strike the memorandum, which the court will treat as a motion brought under Rule 7(b) of the FSM Rules of Civil Procedure, is therefore denied.

The plaintiffs have moved to strike the Bank's response to plaintiffs' opposition to Perman's motion to vacate the entry of default on the basis that the motion was not directed to the Bank. Plaintiffs contend that the Bank is a stranger, so to speak, to the motion and should not be permitted to respond. Rule 6(d) of the FSM Rules of Civil Procedure neither expressly prohibits nor permits this practice. It provides in pertinent part that "[t]he party opposing the motion shall not later than 10 days after the service of the motion upon that party, file and serve responsive papers" (emphasis added). Without more, "the party opposing the motion" can mean any party who opposes the motion. In multi-party cases generally, this court will at least consider a response by a party to whom a motion is not directed, although it would seem to go without saying that the party to whom the motion is directed is in a superior position fact-wise relative to other parties, and in all likelihood will be in a position to make arguments of greater weight relative to other parties, since the party to whom the motion is directed will be most directly affected by the motion's outcome. Accordingly, the plaintiffs' motion to strike the Bank's response to the plaintiffs' opposition to Perman's motion to vacate is denied.

b. The motion to vacate entry of default

On November 23, 2000, the court entered an order granting defendant Paulus Perman's motion to vacate entry of default against him. The motion was filed on November 6, 2000. At the time of the order vacating the entry of default, the court had not received at its Yap office a copy of plaintiffs' opposition to the motion to vacate the default, and on November 24, 2000, the court vacated the November 23, 2000, order, and indicated it would consider the opposition. On the same day, November 24, 2000, Perman also filed his memorandum supporting his motion to vacate the entry of

[2001] FMKSC 11; [10 FSM Intrm. 162]

default.

In their opposition to the motion to vacate the entry of default, plaintiffs rightly point out that there was an insufficient factual basis presented in the original motion to vacate to support granting the motion. That defect was cured by the November 24, 2000, memorandum, which incorporated Perman's affidavit and explains why he did not file an answer.

Plaintiffs further contend that Perman has not demonstrated any basis under Rule 60(b) why the default should not be vacated. Rule 60(b) addresses relief "from a final judgment, order, or proceeding." At issue here is not a default judgment, but rather the entry of default, which is the precursor under Rule 55(a) to entry of a default judgment under Rule 55(b). Rule 55(c) provides that "[f]or good cause shown the court may set aside an entry of default, and if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b). Rule 55 "distinguishes between relief from default, which is an interlocutory matter, and relief from a judgment by default, which involves final judicial action." 10 James Wm. Moore et al., Moore's Federal Practice 55.50 at 55-5 ed. 1999). Th). Thus, a "more liberal standard [is] applied to reviewing entry of default, as opposed to default judgments." Id. (footnote omitted). As a consequence, "[t]he court may e to set aside a default whlt when the default is due to willfulness or bad faith or where the defendant offers no excuse at all for the default." Id. 55.50[1][c], at 55-65 (footnote omitted). Here, Perman explains that he relied on the representation of an employee of the Bank that the Bank would handle his defense in this case, and that after he learned that this wa so he obtained his own coun counsel who then filed the motion to vacate the entry of default. This is not a case where Perman "offers no excuse at all for the default." Id. The court finds that Perman's affidavit sufficiently supports his motion to vacate the entry of default. The motion to vacate the default is therefore granted.

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