Federated States of Micronesia Development Bank v Ladore [2003] FMSC 51; 12 FSM Intrm. 169 (Pon. 2003) (10 October 2003)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as FSM Dev. Bank v. Ladore, [2003] FMSC 51; 12 FSM Intrm. 169 (Pon. 2003)

[2003] FMSC 51; [12 FSM Intrm. 169]

FSM DEVELOPMENT BANK,
Plaintiff,

vs.

SILVESTER LADORE and HERMINA LADORE,
Defendants.

CIVIL ACTION NO. 2002-034

ORDER OF CONTEMPT

Andon L. Amaraich
Chief justice

Hearing: May 20, 2003
Decided: October 10, 2003

APPEARANCES:

For the Plaintiff:
James Woodruff, Esq.
P.O. Box M
Kolonia, Pohnpei FM 96941

For the Defendant:
Silvester Ladore, pro se
P.O. Box 510
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Contempt
When the defendants knew of two scheduled conference dates and were able to inform and/or seek leave of court to obtain a rescheduled conference date, but failed to take any action to do so prior to those conferences and when the defendants have intentionally and inexcusably delayed the litigation’s progress, and since contempt of court is any intentional obstruction of the administration of justice by any person, or any intentional disobedience or resistance to the court’s lawful writ, process, order, rule, decree, or command, the defendants are in civil contempt. FSM Dev. Bank v. Ladore, [2003] FMSC 51; 12 FSM Intrm. 169, 170-71 (Pon. 2003).

Contempt; Debtors’ and Creditors’ Rights Ä Orders in Aid of Judgment
When the court has found the defendants in civil contempt, it may order them imprisoned until such time as they comply with the orders issued to date and/or pay an amount necessary to compensate the court and plaintiff for the wasted time and expense involved in having held and set over pretrial conferences that the defendants never timely rescheduled nor attended; but if, in the court’s opinion, imprisonment is a less suitable punishment than a ruling that by its nature will move this litigation to its conclusion, and when the defendant’s only asserted defense to having defaulted on the

[12 FSM Intrm. 170]

underlying promissory note was his unemployment and inability to pay and he is now employed, the court may order the defendants to settle the case and file a stipulated judgment or the court will strike defendants’ answer and enter a default judgment against the defendants, grant a motion for order in aid of judgment, the plaintiff files one, hold a hearing thereon, make findings as to the defendants’ ability to pay, and if warranted, order the defendants’ wages garnished for such amount as the court deems appropriate in light of those findings. FSM Dev. Bank v. Ladore, [2003] FMSC 51; 12 FSM Intrm. 169, 171-72 (Pon. 2003).

* * * *

COURT’S OPINION

ANDON L. AMARAICH, Chief justice:

A show cause hearing was held on May 20, 2003. Defendant Silvester Ladore appeared pro se. Defendant Hermina Ladore did not appear. James Woodruff, Esq., appeared on behalf of plaintiff FSM Development Bank. The purpose of the hearing was to provide defendants with an opportunity to show cause, if any, why they should not be found in contempt for failure to comply with court orders, issued over the course of five months, that required their attendance at pretrial conferences, required that they obtain the legal representation that they allegedly were seeking, and required that their legal counsel file a notice of appearance with the court.

The record shows that a Notice of Pre-Trial Conference was issued on January 20, 2003, to inform the parties that a conference was scheduled for February 19, 2003. Defendants failed to appear on that date. The pre-trial conference was re-scheduled for March 7, 2003. On that date, defendants again did not appear but the Court determined that they had not been properly served with notice and, thus, their absence was excused. The pre-trial conference was again re-scheduled for March 25, 2003. On that date, defendants filed a motion requesting a continuance on the grounds that defendant Silvester Ladore was ill and defendants wished to obtain legal counsel. The Court issued an Order on March 27, 2003, which granted defendants’ motion, required them to obtain legal representation and have their attorney file a notice of appearance, and ordered their attendance at a pre-trial conference on April 29, 2003. Defendants failed to appear.

On May 8, 2003, the Court issued an Order requiring the parties to appear at a Show Cause Hearing scheduled for May 20, 2003. The purpose of the hearing was to provide defendants with an opportunity to show why they should not be found in contempt of court. As noted above, defendant Silvester Ladore appeared at the hearing on May 20, 2003, without counsel.

At the show cause hearing, Mr. Ladore testified under oath that the defendants’ unexcused absences from the pretrial conferences scheduled in this matter were due to illness and hospitalization during the month of March 2003, and due to a death in the family. He explained his failure to file a notice of appearance as being caused by the Micronesian Legal Services Corporation (MLSC) having declined to represent him. However, he also testified that he had decided to retain the services of an attorney who is not admitted to practice before this Court. There was no testimony as to whether he had attempted to retain the services of an attorney who could represent him in the present matter.

Having carefully considered the record in this case and the testimony of Mr. Ladore, the Court hereby finds that:

1. The defendants knew of the Court order relating to legal representation. There is insufficient evidence from which to determine whether they had the ability but failed to retain counsel who

[12 FSM Intrm. 171]

could represent them in national court;

2. The defendants knew of, but failed to attend, the pretrial conference in March 2003 due to circumstances outside their control.

3. The defendants knew of the scheduled conference dates in January and April 2003. They were able to inform and/or seek leave of the Court to obtain a rescheduled conference date, but failed to take any action to do so prior to those conferences.

4. The defendants have intentionally and inexcusably delayed the progress of this litigation in which plaintiff seeks to recover on a defaulted promissory note.

Title 4, section 119 of the FSM Code provides, in part:

(1) Any Justice of the Supreme Court shall have the power to punish contempt of court. Contempt of court is:

(a) any intentional obstruction of the administration of justice by any person, including any Clerk or officer of the Court acting in his official capacity; or

(b) any intentional disobedience or resistance to the Court’s lawful writ, process, order, rule, decree, or command.

(2) All adjudications of contempt shall be pursuant to the following practices and procedures:

(a) Any person accused of committing any civil contempt shall have a right to notice of the charges and an opportunity to present a defense and mitigation. A person found in civil contempt may be imprisoned until such time as he complies with the order or pays an amount necessary to compensate the injured party, or both;

(b) Any person accused of committing a criminal contempt shall have a right to notice of the charges and an opportunity to present a defense and mitigation; provided, however, that no punishment of a fine of more than $100 or imprisonment shall be imposed unless the accused is given a right to notice of the charges, to a speedy public trial, to confront the witnesses against him, to compel the attendance of witnesses in his behalf, to have the assistance of counsel, and to be released on bail pending adjudication of the charges. He shall have a right to be charged within three months of the contempt and a right not to be charged twice for the same contempt; and

(c) A person found to be in contempt of court shall be fined not more than $1,000 or imprisoned for not more than six months."

Based on the findings made above, it is the conclusion of this Court that the defendants are in civil contempt. 4 F.S.M.C. 119 (1)(a) & (b). Accordingly, the Court may order them imprisoned until such time as they comply with the orders issued to date and/or pay an amount necessary to compensate the Court and plaintiff for the wasted time and expense involved in having held and set over pretrial conferences that were never timely rescheduled nor attended by the defendants. See 4 F.S.M.C. 119 (2)(a). However, it is the opinion of this Court that imprisonment is a less suitable punishment in this case than a ruling that by its nature will move this litigation to its conclusion. In the Answer that the defendants filed in response to the Complaint in this case, defendant’s only asserted

[2003] FMSC 69; [12 FSM Intrm. 172]

"defense" to having defaulted on the underlying promissory note was his unemployment and inability to pay. However, at the show cause hearing Mr. Ladore testified that he is now employed as a municipal court judge.

Accordingly, the Court hereby orders the defendants to:

1. Settle this case in a manner acceptable to all parties by November 18, 2003; and

2. File a Stipulated Judgment by November 30, 2003; or

3. On December 1, 2003, the Court shall strike defendants’ Answer and enter a Judgment of Default against defendants, grant a Motion for Order In Aid of Judgment, should one be filed by plaintiff, hold a hearing thereon, make findings as to the defendants’ ability to pay, and if warranted, the Court may order defendants’ wages garnished for such amount as the Court deems appropriate in light of those findings.

4. Defendants shall not file any documents in this Court that are prepared by any individuals who are not authorized to practice before this Court.

* * * *