Church of the Latter Day Saints v Esiron [2004] FMSC 3; 12 FSM Intrm. 473 (Chk. 2004) (14 May 2004)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Church of the Latter Day Saints v. Esiron, [2004] FMSC 3; 12 FSM Intrm. 473 (Chk. 2004)

[2004] FMSC 3; [12 FSM Intrm. 473]

CHURCH OF JESUS CHRIST OF THE
LATTER DAY SAINTS,
Appellant/Plaintiff,

vs.

KONIT ESIRON,
Appellee/Defendant.

CIVIL ACTION NO. 1990-1000

ORDER

Dennis K. Yamase
Associate Justice

Decided: May 14, 2004

APPEARANCE:

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

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[12 FSM Intrm. 474]

HEADNOTES

Civil Procedure - Motions
The Rule 6(d) requirement that motions "contain certification by the movant 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" does not apply to Rule 6(b)(1) requests to enlarge time (requests made before time has expired) since such requests may be made, and granted, without notice. Such certification is necessary for Rule 6(b)(2) requests to enlarge time once the deadline has passed since such requests must be made on motion with notice. Church of the Latter Day Saints v. Esiron, [2004] FMSC 3; 12 FSM Intrm. 473, 474 (Chk. 2004).

Administrative Law - Judicial Review
When a case pending in the trial division is an appeal from the Chuuk Land Commission, the procedure followed will, where appropriate, be analogous to the procedure usually used for appeals - the FSM Rules of Appellate Procedure. Church of the Latter Day Saints v. Esiron, [2004] FMSC 3; 12 FSM Intrm. 473, 474-75 (Chk. 2004).

Administrative Law - Judicial Review; Appellate Review - Briefs and Record
Appellate briefs are deemed filed on the day of mailing if the most expeditious form of delivery by mail, excepting special delivery, is utilized. This is an appropriate procedure to follow in an analogous circumstance in the trial division when it is considering an appeal. Church of the Latter Day Saints v. Esiron, [2004] FMSC 3; 12 FSM Intrm. 473, 475 (Chk. 2004).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

The court has received by facsimile transmission, the appellant’s Motion to Enlarge Time to Allow Receipt of Appellant’s Brief by Mail and Motion to File by Fax, with supporting affidavit. The motion to file by fax asks that the court allow the motion to enlarge to be filed by fax since May 14, 2004 is the appellant’s deadline to file its opening brief and that since the brief and appendix are a combined 214 pages long, it would be difficult and wasteful to fax. The appellant also, pursuant to Civil Procedure Rule 6(d), called appellee’s counsel to obtain his agreement to the motion. Appellee’s counsel did not object to the enlargement.

Special cause having been shown, the motion to file by facsimile is granted. FSM Civ. R. 5(e). The motion to enlarge is accordingly filed today. The motion to enlarge is therefore filed before the time to file has expired. The court may order an enlargement of time without notice upon a party’s request for cause shown if the request is made before the expiration of the period previously ordered by the court. FSM Civ. R. 6(b)(1). While it is gratifying that opposing counsel are cooperative, it was unnecessary for the appellant’s counsel to seek the other party’s consent under Rule 6(d). The Rule 6(d) requirement that motions "contain certification by the movant 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" does not apply to Rule 6(b)(1) requests to enlarge time since such requests may be made, and granted, without notice. (Such certification is of course necessary for Rule 6(b)(2) requests to enlarge time once the deadline has passed, since such requests must be made on motion with notice.) The opposing counsel’s consent is unnecessary, but is helpful and advisable.

Although this case is pending in the trial division, it is an appeal from the Chuuk Land

[2004] FMSC 4; [12 FSM Intrm. 475]

Commission. As such, the procedure followed will, where appropriate, be analogous to the procedure usually used for appeals - the FSM Rules of Appellate Procedure. Under those rules, appellate "briefs shall be deemed filed on the day of mailing if the most expeditious form of delivery by mail, excepting special delivery, is utilized." FSM App. R. 25(a). This is an appropriate circumstance under which to follow a procedure analogous to the appellate rules.

The supporting affidavit states that the appellant’s brief and appendix are being mailed May 14, 2004, which is the deadline already set for filing. The court therefore deems the appellant’s May 14, 2004 mailing of its brief as complying with the court’s previous scheduling order. The motion to enlarge is therefore denied to the extent that it is unnecessary.

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