Primo v Semes [2003] FMSC 16; 11 FSM Intrm. 603 (Pon. 2003) (10 June 2003)

FSM SUPREME COURT TRIAL DIVISION
Cite as Primo v. Semes
[2003] FMSC 16; 11 FSM Intrm. 603 (Pon. 2003)

[FSM Intrm. 603]

CARMELINO PRIMO, as Personal Representative of the
Estate of ICLIF PRIMO, and MERLE ST. CLAIR,
individually and as Guardian for SAM ST. CLAIR, a minor,
Plaintiffs,

vs.

HERCULES SEMES, individually and d/b/a BAMBOO
INN TAXI SERVICE, SEPIO DONRE, individually and d/b/a
BAMBOO INN TAXI SERVICE, and KANIO DORRES,
Defendants.

CIVIL ACTION NO. 2002-036

ORDER GRANTING MOTION TO DISMISS COUNTERCLAIM

Andon L. Amaraich
Chief Justice

Hearing: May 6, 2003
Decided: June 10, 2003

[FSM Intrm. 604]

APPEARANCES:

For the Plaintiffs: Michael J. Sipos, Esq.
P.O. Box 2069
Kolonia, Pohnpei FM 96941

For the Defendant: Steven Finnen, Esq.
(Semes) Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Civil Procedure - Discovery; Civil Procedure - Sanctions
If a motion to compel answers to discovery is granted, the court must, after opportunity for hearing, require the party (or the party’s attorney, or both) whose conduct necessitated the motion to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. Primo v. Semes, [2003] FMSC 16; 11 FSM Intrm. 603, 606 (Pon. 2003).

Civil Procedure - Interrogatories; Civil Procedure - Sanctions
When none of the arguments put forward in opposition to a motion to compel discovery establish that there was any legitimate justification for the opposition to the plaintiffs’ motion to compel or the failure to timely respond to the interrogatories, the defendant should pay the plaintiffs the reasonable expenses incurred in obtaining the order compelling interrogatory responses. Primo v. Semes, [2003] FMSC 16; 11 FSM Intrm. 603, 606 (Pon. 2003).

Civil Procedure - Motions
Rule 6(b) requires that when requesting an enlargement to perform an act when the period has expired, the moving party must show excusable neglect. Primo v. Semes, [2003] FMSC 16; 11 FSM Intrm. 603, 606 (Pon. 2003).

* * * *

COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

On May 6, 2003, this matter came for hearing on plaintiffs’ request for expenses against defendant Semes and attorney Saimon pursuant to Rule 37. Plaintiffs were represented by Michael Sipos. Defendant Semes and attorney Saimon were represented by Steven Finnen.

BACKGROUND

On March 24, 2003, the court entered an order which denied Semes’s motion for enlargement of time to respond to interrogatories propounded by plaintiffs (as well as granting the motion to enlarge with respect to a request for production of documents propounded by plaintiffs). Further, that order granted plaintiffs’ request for expenses incurred in obtaining the order pursuant to FSM Civil Rule

[FSM Intrm. 605]

37(a)(4), and scheduled a hearing on plaintiffs’ reasonable expenses incurred in obtaining the order to compel the interrogatories.

Arguments At Hearing

Mr. Sipos stated that the court’s March 24, 2003 order scheduled a hearing on plaintiffs’ reasonable expenses incurred in obtaining the order compelling Semes’s responses to interrogatories, and whether Semes’s opposition to the motion to compel was substantially justified. Mr. Sipos stated that his papers are comprehensive on these points and supported by affidavits. Mr. Sipos submitted that none of defendant Semes’s or his counsel’s arguments show substantial justification for the opposition to plaintiffs’ motion to compel.

Mr. Sipos stated that he had considered what would constitute reasonable expenses in obtaining the order compelling discovery prior to submitting the request, and his request for attorney’s fees for all time spent on these matters is $2,093.73.^[1] Mr. Sipos stated it was necessary to request sanctions to put an end to the discovery abuses and Rule 11 violations committed by attorney Saimon. Mr. Sipos seeks compensation for all of the time he spent opposing Semes’s motion to enlarge and moving to compel Semes’s responses to interrogatories as Rule 37 states that the court shall award reasonable attorney’s fees.
Mr. Sipos also disputed Semes’s argument in one of his papers that once the discovery was provided, the motion to compel was moot. This is completely fallacious since this would always provide an incentive to delay providing responses to discovery. Further, the court should consider that the delay which has resulted, and therefore the injustice created, is considerable. And, a failure to award sanctions punishes the party who spent time necessary to correct a wrong and rewards the wrongdoer (who failed to provide discovery).

Mr. Finnen stated that Semes’s response to the interrogatories was due October 11, 2002. On October 12, Mr. Saimon called Mr. Sipos and asked for an enlargement. Semes’s response to the request for production of documents was due on November 18th or November 21st, 2002. When Mr. Saimon called Mr. Sipos, Mr. Sipos stated he would not stipulate to the enlargement, but also that he would not move to compel responses until November 21, 2002.

Mr. Finnen argued that the meet and confer requirement contained in Rule 6(d) of the FSM Rules of Civil Procedure is to require counsel to cooperate with each other and to work together to solve problems. Mr. Sipos’s refusal to stipulate to a motion to the court for an enlargement of time was not truly in the spirit of cooperation. Since Mr. Sipos would not consent to stipulate to such a motion, it was not unreasonable for Mr. Saimon to file a motion to enlarge time to respond to the discovery.

Mr. Finnen stated that the court’s decision in this matter is important as to where the court will award sanctions. Micronesian custom and tradition is that people must work together. He asked the court to look carefully at what is in issue in this matter and how that will affect future litigation before the FSM Supreme Court.

[FSM Intrm. 606]

ANALYSIS

In its March 24, 2003 order, the court granted in part plaintiffs’ motion to compel discovery responses from defendant Semes. Specifically, the court granted plaintiffs’ motion to compel Semes’s interrogatory responses. Pursuant to FSM Civil Rule 37(a)(4), if a motion to compel answers to discovery is granted,

the court shall, after opportunity for hearing, require the party (or the party’s attorney, or both) whose conduct necessitated the motion to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

FSM Civ. R. 37(a)(4) (emphasis added).

The court believes that defendant Semes and his attorney Salomon Saimon should pay to plaintiffs the reasonable expenses incurred in obtaining the order compelling Semes’s interrogatory responses. The court does not find that any of the arguments put forward by Semes in opposition to the motion to compel established that there was any legitimate justification for the opposition to plaintiffs’ motion to compel, or the failure to timely respond to the interrogatories. Mr. Saimon did not contact Mr. Sipos to ask for a stipulation to enlarge the time to respond to the interrogatories until one day after the responses to the interrogatories were due. And, Semes did not file his motion to enlarge the time to respond to the interrogatories until eight days after the time to respond to the interrogatories had passed.

Semes’s motion to enlarge the time to respond to the interrogatories did not comply with the requirements of FSM Civil Rule 6(b), which requires that when requesting an enlargement to perform an act when the period has expired, the moving party must show excusable neglect. Semes’s motion to enlarge (with respect to the interrogatories) was filed after the time to respond to the interrogatories pursuant to the FSM Rules of Civil Procedure had expired. Thus, in order to show good cause, Semes’s was required to establish that his inability to respond to the interrogatories was due to excusable neglect. Semes’s motion to enlarge made no such showing of excusable neglect as to why Semes did not respond to the interrogatories within the time provided by the FSM Rules of Civil Procedure.

The court believes that plaintiffs’ request for attorney’s fees in the amount of $2,093.73 is not reasonable for the cost of obtaining an order to compel interrogatory responses. However, the court notes that part of plaintiffs’ request for attorney’s fees included sanctions against attorney Berman for alleged Rule 11 violations. Further, the motion to compel discovery was granted in part and denied in part; the court denied plaintiffs’ motion to compel Semes’s responses to plaintiffs’ production request.

CONCLUSION

Therefore, the court HEREBY ORDERS that defendant Semes and attorney Saimon are required to pay to plaintiffs the reasonable expenses incurred in obtaining the order compelling the interrogatory responses, in the amount of FIVE HUNDRED DOLLARS ($500.00). This amount shall be paid by defendant Semes and/or attorney Saimon within sixty (60) days of the date of entry of this order.

Further, the court believes that certain arguments made by Semes and/or attorney Saimon in opposition to plaintiffs’ motion to compel and plaintiffs’ requests for expenses and sanctions may have been in violation of Rule 11 of the FSM Rules of Civil Procedure. The court therefore hereby orders Mr. Sipos and Mr. Saimon to file briefs within twenty (20) days of the date of entry of this order on the

[FSM Intrm. 607]

issue of whether defendant Semes’s and/or attorney Saimon’s arguments in opposition to plaintiffs’ motion to compel and request for sanctions were in violation of Rule 11. A hearing on whether papers filed by defendant Semes and/or attorney Saimon were in violation of Rule 11 is hereby scheduled for Thursday, August 14, 2003 at 2:00 p.m. at the FSM Supreme Court in Palikir, Pohnpei.

* * * *

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^[1] This sum includes a request for sanctions against attorney Mary Berman for alleged Rule 11 violations; in the March 24, 2003 order, the court determined that it would not award sanctions against attorney Berman for alleged Rule 11 violations.