Dateline Exports, Inc. v George [2012] FMSC 2; 18 FSM Intrm. 147 (Kos. 2012) (16 January 2012)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2003-2007

DATELINE EXPORTS, INC.,
Plaintiff,

vs.

ROBERT GEORGE d/b/a Penny Wise Store,
Defendant.
__________________________________________

ORDER AND MEMORANDUM

Martin G. Yinug
Chief Justice

Decided: January 16, 2012

APPEARANCE:

For the Plaintiff: Marstella E. Jack, Esq.

P.O. Box 2210

Kolonia, Pohnpei FM 96941

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HEADNOTE

Civil Procedure - Motions; Contempt
The inability to serve a show cause motion on a defendant means that a court cannot grant that motion without depriving the accused of due process rights. A wiser course of action, with respect to show cause motions, would be to serve the motion first, and then to file the motion and certificate of service within a reasonable time after service, an option expressly provided by the rules of civil procedure. In light of this alternative, and because circumstances may have changed since November 12, 2008, denial of the November 12, 2008 show cause motion is appropriate. Dateline Exports, Inc. v. George, [2012] FMSC 2; 18 FSM Intrm. 147, 149 (Kos. 2012).

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COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

Background

The court entered judgment in this matter in favor of the plaintiff on September 13, 2004. The plaintiff's original counsel of record filed a show cause motion on February 16, 2005, which has been continued a number of times. The last order on that motion, on May 11, 2005, stated that the court would hold the motion in abeyance until May 31, 2005. The plaintiff's original counsel of record has since withdrawn, and has stated as one of his reasons that because the lawsuit had been reduced to judgment, with an order in aid thereof, because the debtor was making routine payments in accordance with the order in aid of judgment, and because there was no pending or immediately contemplated legal work required in the matter, the withdrawal would not have an adverse effect on the plaintiff. Mot. Withdraw at 3.

The plaintiff's current counsel of record filed a new show cause motion on November 12, 2008. However, when the court scheduled a hearing for June 15, 2010, the plaintiff filed a motion on June 11, 2010, to continue the hearing, citing the fact that the plaintiff had had trouble locating the defendant, and stating that the plaintiff wishes to be able to locate the defendant for purposes of serving the show cause motion upon him. Mot. Continue Hr'g at 2. The court has not received further filings since then.

Analysis

The court takes this opportunity to clear up the case file in this matter. With regard to the February 16, 2005 show cause motion, the court finds that the then-counsel of record has filed nothing further with regard to that motion after the ending of the abeyance period on May 31, that the then-counsel of record has in any case withdrawn, and that the then-counsel stated that there was no pending or immediately contemplated legal work to be done at that time. The fact that the current counsel of record felt obliged to file a new show cause motion suggests that the plaintiff had, at the time the former counsel of record withdrew, effectively abandoned the February 16, 2005 motion. Nevertheless, in the interest of thoroughness, the court hereby denies the February 16, 2005 show cause motion.

With regard to the November 12, 2008 show cause motion, the court accepts counsel's assertion that she has not yet been able to contact the defendant. A person accused of committing contempt of court, whether civil or criminal, has the right to notice of the charges and an opportunity to present a defense and mitigation. 4 F.S.M.C. 119(2). The inability to serve upon the defendant the show cause motion means a court cannot in such a case grant the motion without depriving the accused of due process rights. A wiser course of action, with respect to show cause motions, would be to serve the motion first, and then to file the motion and certificate of service within a reasonable time after service, an option expressly provided by the rules of civil procedure. FSM Civ. R. 5(d). In light of this alternative resource, and with a mind to the possibility that circumstances may have changed between November 12, 2008, and any future show cause motion, the court finds that denial of the motion is appropriate, and hereby denies the November 12, 2008 show cause motion.

Finally, with regard to the motion to continue the show cause hearing, the court's denial of the underlying motion means there is no reason at present to hold a hearing. Therefore, the court hereby denies the motion to continue the June 15, 2010 show cause hearing.

Conclusion

For the reasons described above, the court hereby denies the plaintiff's February 16, 2005 Motion to Show Cause Why Defendant Should Not Be Held in Contempt; denies the plaintiff's November 12, 2008 Motion to Show Cause Why Defendant Should Not Be Held in Contempt; and denies the plaintiff's Motion to Continue Hearing Scheduled for June 15, 2010. The court further orders that the plaintiff file a status report on this matter with the court on or before Tuesday, January 31, 2012, and e-mail a courtesy confirmed copy to [e-mail].

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