Fan Kay Man v Fananu Municipal Government [2004] FMSC 23; 12 FSM Intrm. 492 (Chk. 2004) (11 June 2004)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Fan Kay Man v. Fananu Mun. Gov’t[2004] FMSC 23; , 12 FSM Intrm. 492 (Chk. 2004)

[2004] FMSC 23; [12 FSM Intrm. 492]

FAN KAY MAN, a/k/a FRANKIE FAN, TIM DO LEI (CHUUK) INC.,
CHEONG CHONG PAK, and AO CHANG YANG,
Plaintiffs,

vs.

FANANU MUNICIPAL GOVERNMENT, and MAYOR TENRY EWEN,
personally and in his capacity as Mayor of Fananu Municipality,
Defendants.

CIVIL ACTION NO. 2002-1024

ORDER

Dennis K. Yamase
Associate Justice

Decided: June 11, 2004

APPEARANCES:

For the Plaintiffs:
Andrea Hillyer, Esq.
P.O. Drawer D
Kolonia, Pohnpei FM 96941

For the Defendants:
Wesley Simina, Esq.
P.O. Box 94
Weno, Chuuk FM 96942

[12 FSM Intrm. 493]

* * * *

HEADNOTES

Civil Procedure - Motions
Failure to oppose a motion is generally deemed a consent to the motion, but even when there is no opposition, the court still needs good grounds before it can grant the motion. Fan Kay Man v. Fananu Mun. Gov’t[2004] FMSC 23; , 12 FSM Intrm. 492, 495 (Chk. 2004).

Civil Procedure - Service
Although a court must rely on a certificate of service attached to a filing and presume that it is correct, such a presumption may be rebutted by admissible evidence. Fan Kay Man v. Fananu Mun. Gov’t[2004] FMSC 23; , 12 FSM Intrm. 492, 495 (Chk. 2004).

Civil Procedure - Motions; Constitutional Law - Judicial Guidance Clause
Since court decisions are constitutionally required to be consistent with the geographical configuration of Micronesia, which includes the relative isolation of various outer island communities, a fifteen-day delay caused by the inability of a mayor from an outer island with no air service to Chuuk Lagoon to travel to the Lagoon to sign legal papers will be considered excusable neglect. Fan Kay Man v. Fananu Mun. Gov’t[2004] FMSC 23; , 12 FSM Intrm. 492, 495-96 (Chk. 2004).

Civil Procedure - Motions
Rule 6(d) requires that motions be accompanied by a memorandum of points and authorities and that the moving party’s failure to file the memorandum of points and authorities shall be deemed the moving party’s waiver of the motion. Fan Kay Man v. Fananu Mun. Gov’t[2004] FMSC 23; , 12 FSM Intrm. 492, 496 (Chk. 2004).

Civil Procedure - Motions
Although Rule 6(d) requires that motions must contain both a memorandum of points and authorities and a certification that a reasonable effort has been made to obtain the opposing party’s "agreement or acquiescence" and whether it has been obtained, only the failure to include points and authorities results in a mandatory denial of the motion. Whether the court denies a motion because it lacks a certification concerning the opposing party’s "agreement or acquiescence," is a matter left to the court’s discretion. Fan Kay Man v. Fananu Mun. Gov’t[2004] FMSC 23; , 12 FSM Intrm. 492, 496 (Chk. 2004).

Civil Procedure - Motions
When there are other grounds to deny a motion, the absence of a certification that a reasonable effort has been made to obtain the opposing party’s "agreement or acquiescence" will be used as a secondary ground of denial. Fan Kay Man v. Fananu Mun. Gov’t[2004] FMSC 23; , 12 FSM Intrm. 492, 496 (Chk. 2004).

Civil Procedure - Motions
When the motion is sought ex parte or is one that may be sought ex parte or without notice, no certification that a reasonable effort has been made to obtain the opposing party’s "agreement or acquiescence" is needed. Otherwise, when the certification is absent, the court will generally not rule either way on the motion until the time (generally ten days, or if served by mail, sixteen) allowed for responses has expired, unless the opposing party has filed a response before then. Fan Kay Man v. Fananu Mun. Gov’t[2004] FMSC 23; , 12 FSM Intrm. 492, 496 (Chk. 2004).

[12 FSM Intrm. 494]

Civil Procedure - Motions
A movant who fails to include a certification concerning the opposing party’s agreement or acquiescence, takes the risk that, because of the certification’s absence, the motion may be denied and that, as a result of the passage of time, the possibility of taking alternative action or of renewing the motion may be gone or its possible scope or effectiveness may be narrowed. Fan Kay Man v. Fananu Mun. Gov’t[2004] FMSC 23; , 12 FSM Intrm. 492, 496 (Chk. 2004).

Civil Procedure - Motions
Often, seeking the opposing party’s consent is simply good practice because, although agreement by counsel does not mean that the court will, or must, grant the agreed motion, it does increase the likelihood it will be granted. Fan Kay Man v. Fananu Mun. Gov’t[2004] FMSC 23; , 12 FSM Intrm. 492, 496 (Chk. 2004).

Civil Procedure - Motions
In the case of certain motions, such as a Rule 11 motions for sanctions, the court, in its discretion, has, and will, overlook the lack of a certification when it is apparent from the motion’s nature that no agreement would ever be considered by, or forthcoming from, the opposing party and that any attempt to seek such an agreement would be futile. Fan Kay Man v. Fananu Mun. Gov’t[2004] FMSC 23; , 12 FSM Intrm. 492, 496 & n.3 (Chk. 2004).

Civil Procedure
A preference exists for resolution of matters on the merits and that, within the bounds of reason, and except when a specific rule, law, or a party’s or his counsel’s conduct directs a different result, this preference should be given effect. Fan Kay Man v. Fananu Mun. Gov’t[2004] FMSC 23; , 12 FSM Intrm. 492, 497 (Chk. 2004).

Civil Procedure - Sanctions
If a motion for discovery sanctions is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner. Fan Kay Man v. Fananu Mun. Gov’t[2004] FMSC 23; , 12 FSM Intrm. 492, 497 (Chk. 2004).

* * * *

COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

On May 20, 2004, the plaintiffs served, and on May 21, 2004, filed their Motion to Vacate Order; Motion to Strike Discovery Responses and Impose Sanctions; Motion to Deem Admissions Admitted by Fananu Municipal Government, along with supporting affidavit and exhibits.

I. The Plaintiffs’ Motions

The motions ask that the court’s April 22, 2004 order be vacated. That order enlarged the time for the defendants to file discovery responses from April 1, 2004 to April 16, 2004 on the grounds that no response to the defendants’ April 5, 2004 motion to enlarge had been filed and that the defendant Mayor Tenry Ewen had already filed his response to the plaintiffs’ request for admissions (the response for which an enlargement was sought) on April 15, 2004. The motion’s grounds for vacating that order are that the defendants’ April 5, 2004 motion, ostensibly (according to its certificate of service) served by mail on April 5, 2004, was not received by the plaintiffs until April 29, 2004, was postmarked

[12 FSM Intrm. 495]

(served) on April 26, 2004;[1] and that the defendants’ counsel never contacted the plaintiffs’ counsel to ask if she would agree to an enlargement of time even though Civil Rule 6(d) requires a movant to seek the opposing party’s agreement to a motion before the motion is filed. The plaintiffs also contend that they would have opposed the motion to enlarge on the ground that it did not show excusable neglect, and that they would have prevailed on this point as well.

The motions further ask that once the April 22nd order is vacated, Mayor Ewen’s April 15th response to the request for admissions be stricken as untimely filed and that the plaintiffs’ requests for admissions be deemed admitted for the purpose of ruling on the plaintiffs’ pending summary judgment motion. The plaintiffs also ask that the identical requests for admissions addressed to defendant Fananu Municipal Government be deemed as admitted by that defendant since that defendant has not responded to the requests, and that the court, even if it does not strike Ewen’s request for admissions, use the municipal government’s "admissions" in ruling on the pending summary judgment motion. The plaintiffs add that, if Ewen’s responses are not stricken, they then withdraw that portion of the summary judgment motion that relates to him.

The plaintiffs also ask that the court order the defendants to pay the plaintiffs’ attorney’s fees and costs in bringing the motion to vacate. In neither the motions nor in counsel’s attached affidavit, do the moving papers state the amount of the fees and costs sought.

Lastly, the plaintiffs also ask for an order compelling the defendants to respond to the Request for Production and the Interrogatories that were served on both defendants that were filed and served in October, 2003.

No opposition has been filed. Failure to oppose a motion is generally deemed a consent to the motion, but even when there is no opposition, the court still needs good grounds before it can grant the motion. Senda v. Mid-Pacific Constr. Co., [1994] FMSC 20; 6 FSM Intrm. 440, 442 (App. 1994); Kelly v. Lee, [2002] FMSC 27; 11 FSM Intrm. 116, 117 (Chk. 2002).

II. The Defendants’ Motion to Enlarge

The plaintiffs contend that the April 22, 2004 order granting the motion to enlarge should be vacated for improper service. The contention of improper service is supported by an affidavit and an exhibit. This contention is not opposed by affidavit. Although a court must rely on a certificate of service attached to a filing and presume that it is correct, such a presumption may be rebutted by admissible evidence. The motion to vacate is therefore granted. The defendants’ April 5th motion to enlarge will be reconsidered on its merits taking into consideration the grounds that the plaintiffs advance for its denial. The court expresses its concern over what may be inattentiveness or lack of diligence in effecting service.

The plaintiffs contend that the defendants’ April 5th motion to enlarge should have been denied because it was not in compliance with Rule 6(d) and because it did not show excusable neglect.

The court considers a fifteen-day delay caused by the inability of a mayor from an outer island with no air service to Chuuk Lagoon to travel to the Lagoon to sign legal papers to be excusable neglect. Court decisions are constitutionally required to be consistent with the "geographical configuration of Micronesia," FSM Const. art. XI, § 11, which include relative tive isolation of various

[12 FSM Intrm. 496]

outer island communities.

Civil Procedure Rule 6(d) res tha]ll motions shall contain certification by the mohe movant vant that a reasonable effort has been made to obtain the agreement or acquiescence of the opposing party and that no such agreement has been forthcoming." Rule 6(d) also requires that motions be accompanied by a memorandum of points and authorities. It further provides that "[f]ailure by the moving party to file the memorandum of points and authorities shall be deemed a waiver by the moving party of the motion." FSM Civ. R. 6(d). The rule does not contain similar language making a movant’s failure to include a certification concerning the opposing party’s possible agreement a waiver of the motion.

Thus, although Rule 6(d) requires that motions must contain both a memorandum of points and authorities and a certification that a reasonable effort has been made to obtain the opposing party’s "agreement or acquiescence" and whether it has been obtained, only the failure to include points and authorities results in a mandatory denial of the motion. Whether the court denies a motion because it lacks a certification concerning the opposing party’s "agreement or acquiescence," is a matter left to the court’s discretion.

When there are other grounds to deny a motion, the absence of a certification will be used as a secondary ground of denial. When the motion is sought ex parte or is one that may be sought ex parte or without notice, no certification is needed. Church of the Latter Day Saints v. Esiron, [2004] FMSC 3; 12 FSM Intrm. 473, 474 (Chk. 2004). Otherwise, when the certification is absent, the court will generally not rule either way on the motion until the time (generally ten days, or if served by mail, sixteen, FSM Civ. R. 6(d), (e)) allowed for responses has expired,[2] unless the opposing party has filed a response before then. A movant who fails to include a certification concerning the opposing party’s agreement or acquiescence, therefore takes the risk that, because of the certification’s absence, the motion may be denied and that, as a result of the passage of time, the possibility of taking alternative action or of renewing the motion may be gone or its possible scope or effectiveness may be narrowed. A movant who fails to seek the opposing party’s agreement or acquiescence thus does so at the movant’s own peril. Often, seeking the opposing party’s consent is simply good practice because, although agreement by counsel does not mean that the court will, or must, grant the agreed motion, it does increase the likelihood it will be granted.

The court will consider and rule on the merits of motions without a certification when the opposing party has responded on the merits and not raised the issue of the lack of a certification since this constitutes a waiver of the issue by the opposing party. Without a certificate, a motion will generally not be granted (or denied) until either the opposing party has responded or the time to respond has expired. The court has customarily considered routine, house-keeping motions without a certification and granted or denied them on their merits after a response has been received or after the time to respond has expired when the difficulties and expense in contacting off-island counsel to obtain an agreement has outweighed its advantages.

Similarly, in the case of certain motions,[3] the court, in its discretion, has, and will, overlook the lack of a certification when it is apparent from the motion’s nature that no agreement would ever be considered by, or forthcoming from, the opposing party and that any attempt to seek such an agreement would be futile. The plaintiffs’ own motions under consideration here do not contain a Rule

[12 FSM Intrm. 497]

6(d) certification either. The court, for the reason just stated, does not consider that a valid ground for denying any of them.

In light of the above discussion, the court, in its discretion, will not deny the defendants’ April 5th motion to enlarge time on the ground that it did not contain a Rule 6(d) certification. That motion is therefore granted (or regranted). Ewen’s April 15th responses to the requests for admission are deemed timely filed. The court is also mindful that a preference exists for resolution of matters on the merits and that, within the bounds of reason, and except when a specific rule, law, or a party’s or his counsel’s conduct directs a different result, this preference should be given effect. O’Sonis v. Bank of Guam, [2000] FMSC 30; 9 FSM Intrm. 356, 361-62 (App. 2000). Rule 6(d) does not direct a different result.

III. Other Relief

The plaintiffs state that if the motions to vacate and to strike Ewen’s responses are denied that they will withdraw the portion of the summary judgment motion that pertains to him and proceed on the portion that pertains to the other defendant - the Fananu Municipal Government. They ask that the unanswered request for admissions directed to that defendant be deemed admitted for the purposes of the pending summary judgment motion.

Those requests are identical to the ones addressed to defendant Ewen. The court is unsure whether the defendants, who are both represented by the same counsel, thought that only one set needed to be answered or whether they thought there was only one set to answer. The court is understandably somewhat reluctant to rule on (and possibly grant) summary judgment against one defendant based on that one’s failure to respond to identical requests for admission.

The court will therefore make the following order conditionally granting the plaintiffs’ motion that the requests for admission directed to the Fananu municipal government be deemed admitted. Fananu will be deemed to have admitted the unanswered requests unless, and only unless, the plaintiffs’ prejudice is purged by payment to the plaintiffs the reasonable apportioned expenses of bringing the motion. FSM Civ. R. 37(a)(4) ("If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.") If these sanctions are paid by the deadline to be set by the court, then Ewen’s responses to the plaintiffs’ requests for admission will also be deemed Fananu’s responses.

The plaintiffs’ motion to compel the defendants to respond to their requests for production and to the interrogatories is also granted. The defendants shall file and serve their responses no later than July 14, 2004. The plaintiffs are entitled to reasonable apportioned costs for this portion of the motions as well. This portion of the expenses incurred will be imposed on the defendants and must be paid regardless of whether defendant Fananu elects to purge the plaintiffs’ prejudice and pay the expenses levied in order for it not to be deemed to have admitted the plaintiffs’ requests for admission.

Since the plaintiffs neglected to include in their motion or supporting affidavit and exhibits, any mention of the amount sought for or the expenses incurred in bringing their motions, the plaintiffs shall file and serve, no later than June 21, 2004, their itemization of the amounts sought. The defendants shall have until June 28, 2004 to respond to the plaintiffs’ submission. Filing and service of these papers may be by facsimile transmission provided that the originals are mailed on the same day. After June 28, 2004, the court will set the amounts and deadlines for payment.

IV. Conclusion

The motion to vacate is granted. The defendants’ April 5th motion to enlarge time is granted.

[2004] FMSC 24; [12 FSM Intrm. 498]

Certain sanctions are imposed on the defendants.

* * * *

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[1] A copy of an envelope from the defendants’ counsel postmarked on this date is attached to the motion as an exhibit.

[2] For example, the April 22nd order granted the motion to enlarge after the court had waited seventeen days from the date the motion was filed and served.

[3] For instance, a Rule 11 motions for sanctions.