Ehsa v Pohnpei Port Authority [2007] FMSC 5; 14 FSM Intrm. 567 (Pon. 2007) (15 March 2007)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Ehsa v. Pohnpei Port Auth., [2007] FMSC 5; 14 FSM Intrm. 567 (Pon. 2007)

TIMAKIO EHSA d/b/a POHNPEI MARINE SERVICES,

(Previously consolidated with Civil

Plaintiff,Action No. 2005-015;

consolidated herein with Civil

vs.Action No. 2006-031)

POHNPEI PORT AUTHORITY and IESKE IEHSI,

individually and as general manager of POHNPEI

PORT AUTHORITY,
Defendants.

POHNPEI PORT AUTHORITY,
Counterclaimant,

vs.

TIMAKIO EHSA d/b/a POHNPEI MARINE SERVICES,
Counter-defendant,

POHNPEI PORT AUTHORITY,
Third-party plaintiff,

vs.

M/V ARKADIJA et al.,
Third-party defendants.

CIVIL ACTION NO. 2006-014

ORDER AND MEMORANDUM

Andon L. Amaraich
Chief Justice

Decided: March 15, 2007

APPEARANCES:

For the Plaintiff:
Joseph S. Phillip, Esq.
P.O. Box 464
Kolonia, Pohnpei FM 96941

For the Defendants:
Michael J. Sipos, Esq.
P.O. Box 2069

[14 FSM Intrm. 566]

Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Discovery; Civil Procedure - Interrogatories
When the court says discovery shall be completed by a certain date, it means both propounded and answered. Ehsa v. Pohnpei Port Auth., [2007] FMSC 5; 14 FSM Intrm. 567, 569 (Pon. 2007).

Civil Procedure - Discovery; Civil Procedure - Interrogatories
Six days is added to the 30 day time period to respond when service of the interrogatories and production requests occurs by mail. Ehsa v. Pohnpei Port Auth., [2007] FMSC 5; 14 FSM Intrm. 567, 569 (Pon. 2007).

Civil Procedure - Consolidation
The court may consolidate a civil action with another civil action where one civil action seeks a declaratory judgment that an agency has exceeded its rule-making authority when it promulgated the regulations that lie at the base of the claims in the other civil action, which seeks to enjoin the enforcement of those regulations, since it will serve judicial economy to address all these related issues in one case. Ehsa v. Pohnpei Port Auth., [2007] FMSC 5; 14 FSM Intrm. 567, 570 (Pon. 2007).

Civil Procedure - Discovery
A defendant’s motion to compel discovery will be granted when no good cause has been shown for the plaintiff’s failure to comply. Ehsa v. Pohnpei Port Auth., [2007] FMSC 5; 14 FSM Intrm. 567, 570-71 (Pon. 2007).

Civil Procedure - Discovery
A plaintiff’s motion for a protective order to bar all discovery will be denied when the defendant’s motion to compel discovery was granted. A defendant is not barred from discovery because it opposed an extension of time for answering discovery, or because it filed a motion to compel discovery. Since discovery in a factually-intensive case will be commensurately extensive, the plaintiff in such a case will not be granted a protective order when he urges that the discovery will be lengthy, detailed, unduly oppressive, and expensive but offers no specifics in support. Ehsa v. Pohnpei Port Auth., [2007] FMSC 5; 14 FSM Intrm. 567, 571 (Pon. 2007).

Civil Procedure - Sanctions
An award of fees against the losing party on a motion to compel discovery is mandatory absent a finding that the opposition to the motion was substantially justified. The opportunity to be heard specified in Rule 37(a)(4) is satisfied either by holding an oral hearing after adequate notice, or by providing the affected parties the opportunity to file a written submission. Ehsa v. Pohnpei Port Auth., [2007] FMSC 5; 14 FSM Intrm. 567, 571-72 (Pon. 2007).

Attorney and Client - Appearance
A special appearance is for the purpose of testing or objecting to the sufficiency of service or the court’s jurisdiction over the defendant without submitting to such jurisdiction. Civil Procedure Rule 12 obviates the need for special appearances, since that rule abolished the distinction between general and special appearances. Ehsa v. Pohnpei Port Auth., [2007] FMSC 5; 14 FSM Intrm. 567, 572 (Pon. 2007).

Civil Procedure - Motions
When the third-party defendants’ motion to dismiss was signed by the plaintiff’s counsel, the motion to dismiss is an unsigned paper under Rule 11 which provides that an unsigned pleading, motion, or other paper will be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. Accordingly, the third-party motion to dismiss shall be stricken unless it is signed and the

[2007] FMSC 5; [14 FSM Intrm. 567]

signature indicates that counsel is signing as attorney for the third-party defendants. Ehsa v. Pohnpei Port Auth., [2007] FMSC 5; 14 FSM Intrm. 567, 572 (Pon. 2007).

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COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

As more fully set forth below, it is hereby ordered as follows:

1. Civil Action No. 2006-031 is consolidated with Civil Action No. 2006-014, with all further submissions to be filed under the caption of Civil Action No. 2006-014. Hearing on pending motions not disposed of herein shall take place as set forth in the second paragraph of Part II. infra.

2. The October 11, 2006 motion of plaintiff Timakio Ehsa dba Pohnpei Marine Services ("Ehsa") to reconsider the October 2, 2006 order denying an enlargement of time to answer discovery is denied.

3. The October 16, 2006 motion of the defendant, counterclaimant, third-party plaintiff Pohnpei Port Authority and defendant Ieske Iehsi, individually and as general manager of Pohnpei Port Authority (referred to together as "PPA") to compel compliance with discovery is granted. Ehsa shall comply with outstanding discovery by April 9, 2007. Also by April 9, 2007, Ehsa will file with the court his reasons why an award of the reasonable expenses incurred by PPA in obtaining the order compelling discovery should not be assessed against him and/or his counsel under Rule 37(a)(4) of the FSM Rules of Civil Procedure. Hearing on the issue of reasonable expenses shall be on April 12, 2007, at 2:00 p.m., which is the time set for hearing on other motions in this case.

4. Ehsa’s October 23, 2006 motion for a protective order is denied.

5. The October 23, 2006 motion to dismiss on behalf of the third-party defendants is held in abeyance subject to the conditions set forth in Part II.4 infra.

6. All further discovery - except for Ehsa’s outstanding answers to PPA’s interrogatories and production requests, which will be answered on or before April 9, 2007 - will be completed on or before July 2, 2007. "Completed" means both propounded and answered.

I. Background

The last substantive order in this case was entered on August 9, 2006. Thereafter, on August 21, 2006, PPA served Ehsa by mail with interrogatories under Rule 33 of the FSM Rules of Civil Procedure, and on the following day, August 21, 2006, PPA served Ehsa with requests for production under Rule 34 of the FSM Rules of Civil Procedure. In accordance with those two rules, 30 days are allotted for the answering of interrogatories and for producing documents. Under Rule 6(e) of the FSM Rules of Civil Procedure, 6 days is added to the 30 day time period when service of the interrogatories and production requests occurs by mail, which was the case here. Thus, the interrogatories should have been answered and the documents produced respectively on September 26 and 27, 2006, or 36 days from August 21 and 22, 2006. After the time for responding to discovery had elapsed, Ehsa moved on September 29, 2006, for an enlargement of time until October 28, 2006, to respond to the interrogatories and production requests. That request was denied by order of October 2, 2006. The order recited Ehsa’s failure to move for an enlargement before the time for answering had expired, and his failure to confer with opposing counsel under Rule 6(d) of the FSM Rules of Civil Procedure. Three days later, on October 5, 2006, Ehsa filed a motion for issuance of a

[14 FSM Intrm. 568]

temporary restraining order and preliminary injunction. The motion stated that it was unopposed. Then, on October 11, 2006, Ehsa moved for a reconsideration of the denial of the motion for an enlargement of time to answer the interrogatories. In that motion, he did not object to responding to any of the outstanding discovery; asked the court to reconsider the enlargement based on the fact that the filing of the motion was delayed due to vehicle problems experienced by the individual entrusted with filing the motion; and requested an additional 30 days from October 10, 2006, or until November 10, 2006, to answer PPA’s interrogatories. The answers to discovery were not provided on November 10, 2006, or at any time thereafter.

On October 16, 2006, PPA filed an opposition to the motion to reconsider, and also moved to compel compliance with the unanswered discovery. On October 23, 2006, Ehsa filed 1) a reply to the opposition to the motion to reconsider enlargement; 2) an opposition to the motion to compel discovery; 3) a motion for a protective order asking the court to bar the discovery requested by PPA; and 4) a motion for setting a trial date. Also included in this submission was a motion that purported to be filed on behalf of the third-party defendants and that sought dismissal of the third-party complaint based on Rule 12(b)(6) of the FSM Rules of Civil Procedure. On October 26, 2006, PPA responded to Ehsa’s motions, and requested discovery abuse sanctions. This order follows.

II. Discussion

As a preliminary matter, the court sua sponte consolidates Civil Action 2006-031 with Civil Action 2006-014 for the reason that Civil Action 2006-031 seeks a declaratory judgment that PPA has exceeded its rule-making authority when it promulgated the regulations that lie at the base of the claims in Civil Action 2006-014, which seeks to enjoin the enforcement of the regulations. Thus it will serve judicial economy to address all these related issues in one case.

There is a hearing date now set in Civil Action 2006-031 for April 12, 2007, at 2:00 p.m. Scheduled for hearing at that time are Ehsa’s motion for preliminary injunction and declaratory judgment order, and PPA’s motion to dismiss and for sanctions. At that hearing, the court will also hear argument on the following motions filed in Civil Action 2006-014: 1) Ehsa’s October 5, 2006 motion for temporary restraining order and preliminary injunction; 2) the October 23, 2006 motion to dismiss brought on behalf of the third-party defendants, so long as the conditions set forth infra are satisfied; and 3) Ehsa’s October 23, 2006 motion for a trial date.

The court turns to the remaining motions pending in Civil Action 2006-014.

1. Ehsa’s October 11, 2006 motion to reconsider denial of the enlargement of time to answer PPA’s discovery.

In light of Ehsa’s October 23, 2006 motion for a protective order asking the court to bar PPA from obtaining any discovery discussed immediately below, the motion to reconsider the order denying Ehsa additional time to respond to discovery is denied as moot.

2. PPA’s October 16, 2006 motion to compel compliance with discovery, and Ehsa’s October 23, 2006 motion for a protective order.

PPA’s motion seeks to compel responses to the August 21, 2006 interrogatories, and the August 22, 2006 production requests. Ehsa did not respond to this discovery. PPA asserts in its motion to compel that no good cause has been shown for Ehsa’s failure to comply. The court agrees. A review of the discovery propounded by PPA shows that it is straightforward, and goes to the issues raised by the surviving complaint in Civil Action 2005-015, which contains ten counts and 108 paragraphs. To restate the posture of Civil

[14 FSM Intrm. 569]

Action No. 2006-014 and Civil Action No. 2005-015 relative to each other, Civil Action 2005-015 was consolidated with the instant case by order of August 9, 2006, which specifies that all future submissions will be filed in this case, Civil Action 2006-014. The complaint in this case was dismissed pursuant to stipulation in the August 9, 2006 order leaving only the complaint in Civil Action 2005-015. As of this order, Civil Action No. 2006-031 now also stands consolidated with Civil Action No. 2006-014.

Accordingly, PPA’s motion to compel is granted. Ehsa will comply with discovery on or before April 9, 2007.

Since PPA’s motion to compel is granted, Ehsa’s motion for a protective order, in which Ehsa seeks to bar all discovery, is necessarily denied for the following reasons.

Ehsa asserts that PPA should be barred from discovery because PPA opposed an extension of time for answering discovery, and because PPA filed a motion to compel discovery. Reply [] at 4 (Oct. 23, 2006). He offers no authority for these assertions. PPA was entitled to interpose an objection to the extension of time to answer discovery, just as it was entitled to move to compel responses to the outstanding discovery after Ehsa failed to respond within the period prescribed in the applicable rules. Ehsa further asserts that "the veracity of defendant is now being implicated, and it is now apparent that the discovery is made for improper purpose, one of which [sic] to increase the cost of the litigation." Id. Esha claims that PPA’s credibility is at issue because PPA’s counsel on October 6, 2006, sent Esha’s counsel an e-mail in which he indicated that PPA would file a motion to compel on October 19, 2006, but actually filed the motion on October 16, 2006. As PPA points out, however, Ehsa filed his motion for reconsideration of the order denying enlargement on October 11, 2006, thus signaling his unwillingness to comply with discovery by October 19, 2006. It was therefore reasonable for PPA to proceed with its October 16, 2006 motion. The motion does not raise the credibility issue that Ehsa suggests, and even if it did, Ehsa offers no authority entitling him to the relief he requests, which is an order barring PPA from all further discovery. Nor does Ehsa offer any support for the conclusory statement that PPA is conducting discovery for an improper purpose. He urges that the discovery is lengthy, detailed, unduly oppressive, and expensive, but offers no specifics to support these conclusions. This is a factually intensive case, and discovery will be commensurately extensive. Neither that fact, nor any of Ehsa’s other arguments support his conclusion that PPA should be barred from all further discovery. Thus, Ehsa’s motion for a protective order is denied.

Rule 37(a)(4) of the FSM Rules of Civil Procedure addresses the mandatory procedure which the court must follow when a motion to compel discovery has been granted. That rule provides that the court

shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party, attorney, or trial counselor advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney or trial counselor fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

Thus, an award of fees against the losing party on a motion to compel is mandatory, absent a finding that the opposition to the motion was substantially justified. The opportunity to be heard specified in Rule 37(a)(4) is satisfied either by holding an oral hearing after adequate notice, or by providing the affected parties the opportunity to file a written submission. Adams v. Island Homes Constr., Inc., [2002] FMSC 9; 10 FSM Intrm. 430, 432 (Pon. 2001). The court affords Ehsa both means of responding. By April 9, 2007, Ehsa will file with the court his reasons why an award of reasonable expenses should not be made against him and/or his counsel. Hearing on the question will be held on April 12, 2007, at 2:00 p.m.

3. The third-party defendants’ October 23, 2006 motion to dismiss the third-party complaint.

[14 FSM Intrm. 570]

This is the second motion filed in Civil Action No. 2006-014 to dismiss the third-party complaint. The first one was filed by Ehsa along with other motions on June 28, 2006, and was denied by order of August 9, 2006. The instant motion to dismiss the third-party complaint, on the other hand, is not filed by Ehsa but by the third-party defendants. It is part of all the motions filed by Ehsa on October 23, 2006, in a single submission. The motion to dismiss is contained in its entirety on page 5. Unlike Ehsa’s motions, the motion to dismiss purports to be made pursuant to a special appearance. A special appearance is "for the purpose of testing or objecting to the sufficiency of service or the jurisdiction of the court over the defendant without submitting to such jurisdiction." Black’s Law Dictionary 97 (6th ed. 1990). The third-party defendants do not seek to challenge either sufficiency of process, or the court’s jurisdiction. Rather, they cite Rule 12(b)(6), which provides a basis for dismissal where there is a failure to state a claim upon which relief can be granted. In any case Rule 12 of the FSM Rules of Civil Procedure obviates the need for special appearances, since that rule abolished the distinction between general and special appearances. 2A James Wm. Moore et al., Moore’s Federal Practice 12.12 at 12-93 (1989).

What is of concern here, and what the court must consider before it can reach the merits of the motion, is that there is only one signature of counsel on the motions submitted on October 23, 2007, and this signature is that of "Joseph Phillip, Esq./Counsel for Plaintiff" which appears on the final page. Because the motion to dismiss is brought not on behalf of the plaintiffs, but on the behalf of the third-party defendants, the motion to dismiss is an unsigned paper under Rule 11 of the FSM Rules of Civil Procedure, which provides that "[i]f a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant." Accordingly, the motion to dismiss shall be stricken unless it is signed on or before March 26, 2007. The signature shall indicate that Joseph Phillip is signing as attorney for the third-party defendants. If the motion is signed in accordance with the order, the court will hear argument on it at the hearing scheduled for April 12, 2007; otherwise it will be stricken pursuant to Rule 11 of the FSM Rules of Civil Procedure.

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[14 FSM Intrm. 571]