Clarence v Federated States of Micronesia Social Security Administration [2004] FMSC 27; 13 FSM Intrm. 34 (Kos. 2004) (8 November 2004)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Clarence v Federated States of Micronesia Social Security Administration, [2004] FMSC 27; 13 FSM Intrm. 34 (Kos. 2004)

JOHN CLARENCE,
Plaintiff,

vs.

FSM SOCIAL SECURITY ADMINISTRATION,
Defendant.

__________________________________________

CIVIL ACTION NO. 2003-2008

ORDER

Martin Yinug
Associate Justice

Decided: November 8, 2004

[13 FSM Intrm.34]

APPEARANCES:

For the Plaintiff:
Sasaki L. George, Esq.
Micronesian Legal Services Corporation
P.O. Box 38
Lelu, Kosrae FM 96944

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

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HEADNOTES

Civil Procedure - Motions
Nonresponse may be deemed consent to the motion, but there still must be a basis in law and fact for granting the motion. Clarence v. FSM Social Sec. Admin., [2004] FMSC 27; 13 FSM Intrm. 34, 35 (Kos. 2004).

Civil Procedure - Motions
When a party files a motion for enlargement of time under Rule 6(b) after the time for doing the act has expired, he must show excusable neglect. Merely being a busy lawyer does not establish excusable neglect and a motion to enlarge brought on that basis will be denied. Clarence v. FSM Social Sec. Admin., [2004] FMSC 27; 13 FSM Intrm. 34, 35 (Kos. 2004).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

On October 6, 2004, plaintiff John Clarence ("Clarence") filed a motion of enlargement of time in which he requested 30 additional days to file its brief addressing the question whether the October 21, 2003, order of the Board of the FSM Social Security Administration ("FSMSSA") was supported by the record. Clarence’s brief was due on October 5, 2004, one day before the motion for an enlargement was filed. The FSMSSA did not respond to the motion. Nonresponse may be deemed consent to the motion, but there still must be a basis in law and fact for granting the motion. Bank of the FSM v. Mori, [2002] FMSC 18; 11 FSM Intrm. 13, 14 (Chk. 2002).

When a party files a motion for enlargement of time under Rule 6(b) of the FSM Rules of Civil Procedure after the time for doing the act has expired, he must show excusable neglect. Clarence’s counsel cites the press of business as the basis for the enlargement, but merely being a busy lawyer does not establish excusable neglect. Medabalmi v. Island Imports Co., [2001] FMSC 7; 10 FSM Intrm. 217, 219 (Chk. 2001). Accordingly, Clarence’s motion is denied.

The September 22, 2004, order gave the FSMSSA until October 25, 2004, to file a response to Clarence’s brief. The FSMSSA filed nothing on that date, but then Clarence filed no brief to which to respond. The FSMSSA will have until November 15, 2004, to file any further comments it may have with the court on the pending issue. The court will then issue a dispositive order.

[13 FSM Intrm.35]

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