Ruben v Chuuk [2013] FMSC 22; 18 FSM Intrm. 637 (Chk. 2013) (12 April 2013)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2011-1005

KINO RUBEN, next of kin to Ruben Kino Ruben,
Plaintiff,

vs.

CHUUK STATE, JIMMY JOSEPH, GIBSON KUN, STEPHAN SOS, JASON KONINOS, and KERSON RIZAL in his official capacity as Director of Public Safety, Department of Public Safety,
Defendants.
_____________________________________________

ORDER DENYING EXTENSION OF TIME TO APPEAL

Martin G. Yinug
Chief Justice

Decided: April 12, 2013

APPEARANCES:

For the Plaintiff: Derensio S. Konman

Micronesian Legal Services Corporation

P.O. Box D

Weno, Chuuk FM 96942

Salomon M. Saimon, Esq.

Micronesian Legal Services Corporation

P.O. Box 129

Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Motions
Although the failure to oppose a motion is generally deemed a consent to the motion, the court still needs good grounds before it can grant an unopposed motion. For a motion to be granted, even if unopposed, it must be well grounded in law and fact. Ruben v. Chuuk, [2013] FMSC 22; 18 FSM Intrm. 637, 639 (Chk. 2013).

Appellate Review - Notice of Appeal - Extension of Time
Either good cause or excusable neglect would suffice as a ground to extend time to file a notice of appeal. Ruben v. Chuuk, [2013] FMSC 22; 18 FSM Intrm. 637, 639 & n.2 (Chk. 2013).

Appellate Review - Notice of Appeal - Extension of Time
The trial court can extend the time to file a notice of appeal only upon motion filed not later than 30 days after the expiration of the time to appeal prescribed by Rule 4(a). Ruben v. Chuuk, [2013] FMSC 22; 18 FSM Intrm. 637, 639 (Chk. 2013).

Appellate Review - Notice of Appeal - Extension of Time
Rule 4(a)(5)'s central purpose is to make clear that a motion for extension of time must be made not later than 30 days after the expiration of the initial appeal time prescribed by Rule 4(a). Ruben v. Chuuk, [2013] FMSC 22; 18 FSM Intrm. 637, 639 (Chk. 2013).

Appellate Review
The court must first look to FSM sources of law, but when the court has not previously construed an aspect of an FSM appellate rule which is identical or similar to a U.S. rule, it may look to U.S. sources for guidance in interpreting and applying the rule. Ruben v. Chuuk, [2013] FMSC 22; 18 FSM Intrm. 637, 639 n.3 (Chk. 2013).

Appellate Review - Notice of Appeal - Extension of Time
In order for a motion to extend the time to appeal to be timely when the time prescribed by Rule 4(a) to file a notice of appeal had expired on November 28, 2012, the appellant would have had to file the motion no later than December 28, 2012. Ruben v. Chuuk, [2013] FMSC 22; 18 FSM Intrm. 637, 639 (Chk. 2013).

Appellate Review - Notice of Appeal - Extension of Time
The requirement that motions for extension be filed within thirty days of the original deadline is mandatory and jurisdictional, and the failure to make a timely motion to file a notice of appeal out of time prohibits either the trial court or the appellate court from reviving the right to appeal. Ruben v. Chuuk, [2013] FMSC 22; 18 FSM Intrm. 637, 639-40 (Chk. 2013).

Appellate Review - Notice of Appeal - Extension of Time
Because it is simply too late, a court is powerless to grant or even consider a party's March 25, 2013 motion to extend the time to appeal, even nunc pro tunc and the appeal cannot be revived when the court would have had jurisdiction to grant the motion only if the party had filed his motion by December 28, 2012, since Rule 4(a)(5) plainly permits the court to grant an extension only if the motion is filed within 30 days after the expiration of the original appeal period. Ruben v. Chuuk, [2013] FMSC 22; 18 FSM Intrm. 637, 640 (Chk. 2013).

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COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

On March 25, 2013, the plaintiff, Kino Ruben, filed his Motion for Enlargement of Time to File Notice of Appeal, Nunc Pro Tunc, with supporting affidavit. Ruben asks the court to extend by one day (from November 28, 2012, to November 29, 2012) the time for him to file a notice of appeal from the Judgment entered on October 17, 2012,[1] because his attorneys made an honest mistake in calculating the 42-day appeal period and in arriving at November 29, 2012, as the appeal deadline.

The defendants did not file a response. Although the failure to oppose a motion is generally deemed a consent to the motion, FSM Civ. R. 6(d), the court still needs good grounds before it can grant an unopposed motion. Senda v. Mid-Pacific Constr. Co., [1994] FMSC 20; 6 FSM Intrm. 440, 442 (App. 1994). For a motion to be granted, even if unopposed, it must be well grounded in law and fact. In re Parcel No. 046-A-01[1993] FMSC 30; , 6 FSM Intrm. 149, 153 (Pon. 1993).

The motion is denied because the court lacks the power to entertain it or grant it. The reasons follow.

Ruben filed his notice of appeal on November 29, 2012, and now seeks to extend the time to file a notice of appeal by one day so that his November 29, 2012 notice of appeal will be considered timely and effective. Ruben contends that his attorneys' honest mistake in calculating the 42-day appeal period constitutes the excusable neglect needed[2] for the court to grant his motion to extend the time to file his notice of appeal.

The applicable rule provides that:

The court appealed from, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a). Any such motion which is filed before expiration of the prescribed time may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to the other parties in accordance with local rules. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later.

FSM App. R. 4(a)(5). The court can extend the time to file a notice of appeal only "upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a)." FSM App. R. 4(a)(5). Rule 4(a)(5)'s central purpose "is to make clear that a motion for extension of time must be made not later than 30 days after the expiration of the initial appeal time prescribed by Rule 4(a)." 16A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure§ 3950.3, at 3 (3d ed. 1999) 999) (discussing identical provision in U.S. Federal Rules of Appellate Procedure).[3]

The time prescribed by Rule 4(a) expired Novem8, 2012. Therefore, in orde order for his motion to extend to be timely, Ruben would have had to file it no later than December 28, 2012. He did not. He filed it March 25, 2013.

"The requirement that motions for extension be filed within thirty days of the original deadline is mandatory and jurisdictional." Alaska Limestone Corp. v. Hodel, [1986] USCA9 1837; 799 F.2d 1409, 1411 (9th Cir. 1986). And the "failure to make a timely motion to file a notice of appeal out of time prohibits either the [trial] court or [the appellate] court from reviving [the] right to appeal." Id. The court is thus powerless to grant Ruben's March 25, 2013 motion to extend the time to appeal, even nunc pro tunc. It is simply too late. His appeal cannot be revived. If Ruben had filed his motion by December 28, 2012, the court would have had jurisdiction to grant the motion. The court does not have any such jurisdiction now. Rule 4(a)(5) plainly permits the court to grant an extension only if the motion is filed within 30 days after the expiration of the original appeal period. There is no other way to read Rule 4(a)(5). The court therefore cannot even consider Ruben's motion.

Other courts have reached the same conclusion. Cohen v. Empire Blue Cross & Blue Shield, [1998] USCA2 150; 142 F.3d 116, 118 (2d Cir. 1998) (court lacks jurisdiction to grant any extension motion that is not filed within the 30-day grace period); Cavaliere v. Allstate Ins. Co., [1993] USCA11 1397; 996 F.2d 1111, 1114 (11th Cir. 1993) (court cannot entertain motion for extension filed after expiration of 30-day grace period); Crossman v. Maccoccio, [1986] USCA1 209; 792 F.2d 1, 2 (1st Cir. 1986) (motion for extension filed two days after the 30-day grace period was untimely and no court would have the power to extend the time for appeal); Reynolds v. Hunt Oil Co., 643 F.2d 1042, 1042-43 (5th Cir. 1981) (rule requires that a motion to extend time be filed no later than 30 days after expiration of original appeal period for court to have jurisdiction); Lee v. Regal, 951 F. Supp. 502, 504 (S.D.N.Y. 1997) (court lacks power to grant relief under Appellate Rule 4(a)(5) when motion filed too late); Wesley v. Israel, 525 F. Supp. 646, 647 (E.D. Wis. 1981) (time to appeal can be extended only if request for extension is made within 30 days after expiration of time to file notice of appeal). In Wyzik v. Employee Benefit Plan of Crane Co., 663 F.2d 438 (1st Cir. 1981), the notice of appeal was filed one day late. The appellate court ruled that it could not extend the time for appeal and it was too late to move for an extension in the trial court since more than thirty days had passed. Id. at 438.

Accordingly, since the court lacks any jurisdiction to entertain or to grant Ruben's untimely motion to extend time to appeal, the motion must be denied.

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^[1] The court’s Order Granting Summary Judgment was entered one day earlier, on October 16, 2012. Ruben v. Chuuk, [2012] FMSC 38; 18 FSM Intrm. 425 (Chk. 2012).

^[2] Good cause would also suffice. Bualuay v. Rano, [2002] FMSC 30; 11 FSM Intrm. 139, 147 (App. 2002).

^[3] The court must first look to FSM sources of law, FSM Const. art. XI, § 11, but when thet has not pnot previously construed an aspect of an FSM appellate rule which is identical or similar to a U.S. rule, it may look to U.S. sources for guidance in interpreting and applying ule. ee, e.g., Pal, Palsis vsis v. Tafunsak Mun. Gov’t[2008] FMSC 59; , 16 FSM Intrm. 116, 123 n.4 (App. 2008); Heirs of George v. Heirs of Dizon, [2008] FMSC 58; 16 FSM Intrm. 100, 107 n.4 (App. 2008); Kosrae v. Langu, [2008] FMSC 56; 16 FSM Intrm. 83, 87 n.1 (App. 2008); Berman v. College of Micronesia-FSM, [2008] FMSC 36; 15 FSM Intrm. 622, 624 n.1 (App. 2008); Bualuay, 11 FSM Intrm. at 146 n.1; Santos v. Bank of Hawaii, [2000] FMSC 28; 9 FSM Intrm. 306, 308 n.1 (App. 2000); Iriarte v. Etscheit, [1998] FMSC 3; 8 FSM Intrm. 231, 235 (App. 1998); Jano v. King, [1992] FMSC 11; 5 FSM Intrm. 326, 329 (App. 1992).