Actouka Executive Insurance Underwriters v Walter [2003] FMSC 20; 11 FSM Intrm. 508 (Pon. 2003) (1 May 2003)

FSM SUPREME COURT TRIAL DIVISION
Cite as Actouka Executive Ins. Underwriters v. Walter
[2003] FMSC 20; 11 FSM Intrm. 508 (Pon. 2003)

[2003] FMSC 20; [11 FSM Intrm. 508]

ACTOUKA EXECUTIVE INSURANCE
UNDERWRITERS,
Plaintiff,

vs.

ANSITO WALTER, in his capacity as Governor of
the State of Chuuk, STATE OF CHUUK, and THE
FEDERATED STATES OF MICRONESIA,
Defendants.

CIVIL ACTION NO. 2000-029

ORDER NISI

Andon L. Amaraich
Chief Justice

Decided: May 1, 2003

APPEARANCES:

For the Plaintiff: Steven V. Finnen, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendants: Joses Gallen, Esq.
(Walter & Chuuk) P.O. Box 255
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Discovery; Civil Procedure - Sanctions
If a motion to compel discovery is granted, the court shall, after opportunity for hearing, require payment of the moving party’s reasonable expenses incurred in obtaining the order, including attorney

[11 FSM Intrm. 509]

or trial counselor fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. Actouka Executive Ins. Underwriters v. Walter, [2003] FMSC 20; 11 FSM Intrm. 508, 509 (Pon. 2003).
Civil Procedure - Discovery; Civil Procedure - Sanctions
When a defendant has not paid a court-ordered sanction for costs related to the plaintiff’s motion to compel discovery, the court may order that, if the sanction is not paid immediately, the defendant’s answer be stricken. Actouka Executive Ins. Underwriters v. Walter, [2003] FMSC 20; 11 FSM Intrm. 508, 510 (Pon. 2003).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

On November 7, 2001, plaintiff filed a motion to strike the answer of defendants Ansito Walter, sued in his capacity as Governor of the State of Chuuk, and the State of Chuuk (collectively "the Chuuk defendants"), for failure to pay $198.50 in sanctions as ordered by the Court. The Court held a status conference on February 18, 2003. Joses Gallen, Esq. requested time to consult with his clients and oppose the motion to strike. On February 21, 2003, the Court issued an order permitting the Chuuk defendants 15 days to respond to plaintiff’s motion. After obtaining an enlargement of time, Mr. Gallen filed an opposition to the motion to strike on March 12, 2003. In his opposition to the motion to strike, Mr. Gallen stated that he has been in contact with his clients in Chuuk, that serious efforts have been made to expedite payment, and that payment would be made "no later than 30 calendar days."

The Court awarded attorneys fees and costs to plaintiff on June 8, 2001, in the amount of $198.50, because plaintiff had to pay that amount to its attorney more than two years ago to bring a motion to compel discovery responses from the Chuuk defendants. Plaintiff filed a motion to compel discovery responses on March 6, 2001, and the Court granted that motion, and ordered defendants to serve discovery responses, by Order dated May 9, 2001. The motion to compel, and the motion for costs related to plaintiff’s motion to compel, were not opposed by the Chuuk defendants. The Court fixed the amount of costs and ordered the Chuuk defendants to remit $198.50 to plaintiff’s attorney by order dated June 8, 2001. Almost two years has elapsed since that order was issued, and the Chuuk defendants still have made no payment.

Rule 37(a)(4) of the FSM Rules of Civil Procedure, related to motions to compel discovery, provides that:

If the motion [to compel] is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party, attorney, or trial counselor advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney or trial counselor 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). Thus, the Court correctly awarded payment of plaintiff’s reasonable expenses in conjunction with its motion to compel. Rule 37(b)(2) provides in part that:

If a party or an officer, director, or managing agent of a party . . . fails to an order to p to provide or permit discovery, including an order made under subdivision (a) of this rule

[11 FSMm. 51>

. . . the court ich the action tion is pending may make such such orde orders in regard to the failure as are just, and among others the following:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defense, or prohibiting that party from introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party . . .&#16p> FSM >FSM Civ. R.v. R. 37(b)(2) (emphasis added). On April 24, 2003, plaintiff filed a "notice" that no payment has been received, and requested that the rulets motion to strike the Chuuk defendants’ a17; answernswer. Because the Chuuk defendants have not fully complied with this Court’s order to compel discovery, in that they have not remitted the amount of $198.50 to plaintiff, the Court will grant the relief requested, unless the Chuuk defendants immediately pay the amount of $198.50 over to the Clerk of Courts at the FSM Supreme Court in Palikir, Pohnpei.

Defendants are HEREBY ORDERED to remit payment in the amount of $198.50 to the Chief Clerk of Courts in Palikir, Pohnpei, not later than 5:00 p.m. on May 30, 2003, to be paid over to Steven V. Finnen, Esq. The Chief Clerk of Courts is HEREBY ORDERED to certify to the Court not later than 5:00 p.m. on Monday, June 2, 2003, whether payment was received from defendants.

If payment in the amount of $198.50 is received, plaintiff’s motion to strike the answer of the Chuuk defendants is HEREBY DENIED. If payment in the amount of $198.50 is not received, plaintiff’s motion to strike the answer of the Chuuk defendants is HEREBY GRANTED.

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