Ambros & Company Inc v Board of Trustees of the Pohnpei Public Lands Trust [2002] FMSC 6; 10 FSM Intrm. 645 (Pon. 2002) (19 February 2002)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Ambros & Co. v. Board of Trustees,
[2002] FMSC 6; 10 FSM Intrm. 645 (Pon. 2002)

[2002] FMSC 6; [10 FSM Intrm. 645]

AMBROS & COMPANY, INC. and AMBROS SENDA,
Plaintiffs,

vs.

BOARD OF TRUSTEES OF THE POHNPEI PUBLIC
LANDS TRUST, KUINSI ALEXANDER and DOES 1-25,
Defendants.

CIVIL ACTION NO. 2001-036

ORDER GRANTING MOTION TO COMPEL
PLAINTIFFS TO PERMIT INSPECTION

Andon L. Amaraich
Chief Justice

Decided: February 19, 2002

APPEARANCES:

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

For the Defendant(Alexander):
Tino Donre, Esq.
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

* * * *

[10 FSM Intrm. 646]

HEADNOTES

Civil Procedure - Discovery; Civil Procedure - Sanctions
Any party may serve on any other party a request to permit entry upon designated land or other property in the requested party’s possession or control for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b), and if the requested party fails to permit inspection as requested, the party seeking discovery may move for an order compelling inspection in accordance with the request, and if granted, the court may, after opportunity for hearing, require the party whose conduct necessitated the motion to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees. Ambros & Co. v. Board of Trustees, [2002] FMSC 6; 10 FSM Intrm. 645, 647 (Pon. 2002).

Civil Procedure - Discovery
When the plaintiffs failed to respond to a defendant’s request for inspection of the property as required by Rule 34(b), their opposition to defendant’s motion to compel inspection that the real intent of the request was to ask for plaintiffs to pay a portion of the survey’s cost was inappropriate when made for the first time in the opposition, and, when even if timely made, it was not persuasive because the question of the property’s ownership is central to the litigation and determining the respective properties’ boundaries would be important evidence. The motion to compel the prpoertty inspection will therefore be granted. Ambros & Co. v. Board of Trustees, [2002] FMSC 6; 10 FSM Intrm. 645, 647 (Pon. 2002).

* * * *

COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

This matter comes before the court on defendant Kuinsi Alexander’s ("defendant Alexander") motion to compel plaintiffs to permit entry upon land for inspection ("motion to compel"), filed on January 8, 2002. For the reasons set forth below, the court will grant the motion to compel, but will not require plaintiffs to pay attorney’s fees to defendant Alexander at this time.

Background

Defendant Alexander moves pursuant to FSM Civil Rule 37(a)(2) for an order compelling plaintiffs to permit a professional survey team to enter Parcel Lot No. 007-A-19 for the purposes of determining its common boundary with Parcel Lot No. 007-A-18, located in Kolonia, Pohnpei.

On October 9, 2001, defendant Alexander, pursuant to FSM Civil Rule 34(b), served upon plaintiffs a request to permit a professional survey team to enter their land for the purposes of determining the common boundary with the adjacent parcel. Plaintiffs failed to serve a written response to the request. On December 31, 2001, defendant Alexander’s counsel contacted plaintiffs’ counsel and requested that plaintiffs voluntarily comply with the inspection, but plaintiffs’ counsel rejected the request. Defendant Alexander requests attorney’s fees in bringing the motion.

On January 10, 2002, plaintiffs filed an opposition, claiming that the real intent of the request for an inspection of the property was to ask for plaintiffs to pay a portion of the cost of the survey, which plaintiffs did not want to do.

[10 FSM Intrm. 647]

Discussion

Rule 34(a)(2) of the FSM Rules of Civil Procedure provides that any party may serve on any other party a request to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).

FSM Civil Rule 37(a)(2) provides that if a party, in response to request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the party seeking discovery may move for an order compelling inspection in accordance with the request.

FSM Civil Rule 37(a)(4) provides that if the motion to compel is granted, the court shall, after opportunity for hearing, require the party whose conduct necessitated the motion to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

Plaintiffs failed to provide a response to defendant Alexander’s request for inspection as they were required to do by FSM Civil Rule 34(b), In their opposition to defendant Alexander’s motion to compel, plaintiffs argue that the real intent of the request for an inspection of the property was to ask for plaintiffs to pay a portion of the cost of the survey, which plaintiffs did not want to do. Whether or not this is true, plaintiffs were obligated under the FSM Rules of Civil Procedure to provide a written response to defendant Alexander’s request within 30 days of the request. This argument, made for the first time in an opposition to a motion to compel an inspection of the property, is inappropriate.

Additionally, even if timely made, the court does not find plaintiffs’ argument persuasive. The question of ownership of the property in question appears to be central to this litigation, and it would appear that determining the boundaries of the respective properties would be important evidence.

The court believes that good cause has been shown and will grant defendant Alexander’s motion to compel. Plaintiffs are required, within 10 days of the date of entry of this order, to provide defendant Alexander with three separate dates falling within the 40 day period following the entry of this order, when the inspection requested by defendant Alexander will be permitted. At the present time, the court will not require plaintiffs to pay defendant Alexander’s attorney’s fees or costs associated with bringing the motion to compel. However, if plaintiffs fail to permit the inspection requested in defendant Alexander’s October 9, 2001 request for entry upon plaintiffs’ land as required in this order, a hearing will be held in which the Court will determine what further action should be taken as a result of plaintiffs’ failure to comply with this order, and plaintiffs may be forced to pay defendant Alexander’s attorney’s fees.

* * * *