Damerlane v Sato Repair Shop [2003] FMSC 74; 12 FSM Intrm. 231 (Pon. 2003) (20 November 2003)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Damerlane v. Sato Repair Shop, [2003] FMSC 74; 12 FSM Intrm. 231 (Pon. 2003)

[2003] FMSC 74; [12 FSM Intrm. 231]

AUGUSTINE DAMERLANE,
Plaintiff,

vs.

SATO REPAIR SHOP,
Defendant.

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SATO REPAIR SHOP,
Third-Party Plaintiff,

vs.

PETE JACOB and ROSA JACOB,
Third-Party Defendants.

CIVIL ACTION NO. 2002-047

ORDER

Andon L. Amaraich
Chief Justice

Hearing: November 18, 2003
Decided: November 20, 2003

APPEARANCES:

For the Plaintiff:
Sean P. Lynch, Esq.
Directing Attorney
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

For the Defendant (Sato):

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

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HEADNOTES

Civil Procedure - Sanctions
When efforts to settle the case, or set a schedule for discovery, motions and trial, or proceed

[12 FSM Intrm. 232]

with a hearing on the sanctions motion, were rendered impossible by the unexplained absence of parties, the court, under FSM Civil Rule 37(d), has the authority to strike the parties’ answer to third-party complaint or enter a default against them. Damerlane v. Sato Repair Shop, [2003] FMSC 74; 12 FSM Intrm. 231, 232 (Pon. 2003).

Civil Procedure - Sanctions
Failure to attend depositions, court hearings and conferences, and failure to answer discovery requests, are impermissible acts that subject the non-complying party to sanctions, ultimately including punishment that is as severe as imprisonment for acts that are deemed in contempt of court. Damerlane v. Sato Repair Shop, [2003] FMSC 74; 12 FSM Intrm. 231, 232 (Pon. 2003).

Attorney, Trial Counselor and Client - Admission to Practice
Any attorney who assists parties in a case must be one admitted to practice before the national court. Without the court’s prior authorization, attorneys or individuals who are not admitted to the national court are expressly prohibited from taking any part in any matter filed in the national court. Damerlane v. Sato Repair Shop, [2003] FMSC 74; 12 FSM Intrm. 231, 233 (Pon. 2003).

* * * *

COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

A hearing on plaintiff Augustine Damerlane’s Motion for Sanctions against third-party defendants Pete and Rosa Jacob was scheduled by the Court to be held on November 18, at the FSM Supreme Court in Palikir. A pretrial conference in this matter was scheduled to take place on the same date. Notice was served upon each of the parties by Benjamin Rodriguez, National Justice Ombudsman, on October 29, 2003, and the hearing was held at the appointed time. Sean Lynch, Esq., representing plaintiff Damerlane, and Salomon Saimon, Esq., representing defendant Sato Repair Shop, were present. Pete and Rosa Jacob failed to appear and failed to seek leave of the Court to continue the hearing or to otherwise excuse their absence.

Efforts to settle this case, or set a schedule for discovery, motions and trial, or proceed with a hearing on the sanctions motion, were rendered impossible by the unexplained absence of the Jacobs. Pursuant to FSM Civil Rule 37(d), the Court has the authority to strike the Jacobs’ Answer to Third-Party Complaint or enter a Default against them. The Court considered plaintiff’s renewed motion for sanctions, and ruled that the hearing on that motion would be continued in order to give the Jacobs one last opportunity to appear and either defend themselves or assist in the amicable resolution of this case.

At the pretrial conference, the Court was advised by plaintiff’s counsel that the money judgment being sought against the Jacobs is approximately $4,000, for parts that were allegedly removed from the Ford van that is the subject of this litigation. The Court also was advised that discovery has been delayed by the Jacobs’ failure to answer the plaintiff’s interrogatories.

The Court reminds all parties that failure to attend depositions, court hearings and conferences, and failure to answer discovery requests, are impermissible acts that subject the non-complying party to sanctions, ultimately including punishment that is as severe as imprisonment for acts that are deemed in contempt of court. Even those individuals who believe they have been improperly named as parties to a lawsuit become subject to certain legal obligations that attend the litigation, and they must seek leave of the Court in the event that they are unable to meet those obligations.

[12 FSM Intrm. 233]

The record contains two filings that have been submitted by the third-party defendants Pete and Rosa Jacob - an Answer, and a Motion to Deny [plaintiff’s] Motion for Sanctions.[1] As a consequence of the Jacobs’ failure to appear at the hearing on November 18, 2003, their Motion, filed November 6, 2003, is hereby denied, and the Court hereby orders the following:

1. Pete and Rosa Jacob shall have 30 days from the date this Order is entered to obtain legal representation. Any attorney who assists the Jacobs in this case must be one admitted to practice before the national court. Without the prior authorization of this court, attorneys or individuals who are not admitted to the national court are expressly prohibited from taking any part in this or any other matter filed in the national court.

2. The attorney retained by the Jacobs shall file a Notice of Representation on or before Friday, December 19, 2003.

3. The Jacobs shall file an answer to plaintiff’s interrogatories on or before December 22, 2003.

4. In the alternative, the Jacobs shall schedule and attend a settlement meeting with the other parties to this action before January 6, 2004, and attend a pretrial conference hereby set for January 20, 2004.

5. The hearing on plaintiff’s motion for sanctions having been continued by the Court on its own motion, the Court hereby reschedules that hearing for 10:00 a.m. on January 20, 2004, at which time the third-party defendants shall appear or be subject to a finding that they are in contempt of court.

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^[1] Although the Motion contains the assertion that the third-party defendants have not yet retained counsel, the documents that they have filed appear to have been prepared by an individual with legal training.