Salomon v FSM [2018] FMSC 14; 21 FSM R. 522 (Pon. 2018) (7 May 2018)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2013-039

BERYSIN SALOMON d/b/a BERYSIN’S )
COMMUNITY HEALTH CENTER, )
)
Plaintiff, )
)
vs. )
)
FEDERATED STATES OF MICRONESIA, )
)
Defendant. )
__________________________________________ )

ORDER APPOINTING SPECIAL MASTER

Dennis K. Yamase
Chief Justice

Hearing: February 13, 2018
Decided: May 7, 2018

APPEARANCES:

For the Plaintiff: Yoslyn G. Sigrah, Esq.
P.O. Box 3018
Kolonia, Pohnpei FM 96941

For the Defendant: Craig D. Reffner, Esq.
Abigail J. Avoryie, Esq.
Assistant Attorneys General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

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HEADNOTES

Attorney and Client Appearance
The court expects prior notice when circumstances cause an attorney to appear telephonically in a matter. Salomon v. FSM, 21 FSM R. 522, 524 (Pon. 2018).

Civil Procedure Special Masters
In its minimal use of special masters, the FSM Supreme Court may seek guidance from U.S. counterpart, Rule 53 of the U.S. Federal Rules of Civil Procedure. Salomon v. FSM, 21 FSM R. 522, 524 (Pon. 2018).

Civil Procedure Special Masters
Generally, a special master is given the authority to regulate all proceedings; to take all appropriate measures to perform the assigned duties fairly and efficiently; and if conducting an evidentiary hearing, to exercise the appointing court’s power to compel, take and record evidence. Salomon v. FSM, 21 FSM R. 522, 524 (Pon. 2018).

Civil Procedure Special Masters
While the FSM Supreme Court has the power to appoint a special master to make factual findings, it is not required to adopt that report as its own findings. Salomon v. FSM, 21 FSM R. 522, 524 (Pon. 2018).

Civil Procedure Special Masters
The parties are expected to fully cooperate with and provide assistance to the special master when the court has appointed one. Salomon v. FSM, 21 FSM R. 522, 524 (Pon. 2018).

Civil Procedure Special Masters
A special master is expected to file, and serve upon all parties, a written report with a complete record of the information and documents considered in his findings along with his recommendations on the resolution of the disputed claims. Salomon v. FSM, 21 FSM R. 522, 524 (Pon. 2018).

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COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

I. PROCEDURAL BACKGROUND

1. 1. On September 28, 2016, the Court ordered Plaintiff BCHC to file a written brief on the legal basis upon which the Court may order reconciliation process.
   
2. 2. On October 19, 2016, Plaintiff BCHC filed his brief on reconciliation process pointing to Rule 1 and 16 of the FSM Rules of Civil Procedure, the inherent powers of the Court, the Court’s sound discretion, and other relevant authorities as legal basis for the Court to order reconciliation process.
   
3. 3. On November 4, 2016, Defendant FSM filed an Opposition to Plaintiff’s Brief on Reconciliation; Motion to Appoint Special Master for Reconciliation; Memorandum of Points and Authorities in Support thereof. Defendant FSM counters Plaintiff BCHC’s proposition with a request that the Court appoint a special master pursuant to Rule 53 of the FSM Rules of Civil Procedure.
   
4. 4. On November 21, 2016, Plaintiff BCHC filed its Opposition to Defendants’ Motion to Appoint Special Master for Reconciliation.
   
5. 5. On February 13, 2018, the Court held a status conference in this matter. Assistant Attorneys General Mr. Craig Reffner, Esq. and Ms. Abigail Avoryie of the FSM Department of Justice appeared on behalf of Defendant FSM. Ms. Yoslyn G. Sigrah, Esq. appeared telephonically on behalf of Plaintiff BCHC.
   

II. STATUS CONFERENCE

At the outset, the Court expressed its concern that Counsel Sigrah did not provide prior notice of her circumstances causing her to appear telephonically in this matter. The Court expects prior notice in future court proceedings as the Court may not be as understanding as it was in this instant matter.

The Court allowed the parties to proceed and inquired on the status of this matter. Defendant FSM gave a summary, and requested that the Court appoint a special master. In response, Plaintiff BCHC, through counsel, stated that he would agree to an appointment of a special master if it will move this case along. Potential candidates were discussed including a suggestion that one of the Court staff be appointed special master. The Court took the suggestion under advisement and informed the parties that it will issue an order appointing a special master.

III. APPOINTMENT OF SPECIAL MASTER

In its minimal use of special masters, the Court seeks guidance from U.S. counterpart, Rule 53 of the U.S. Federal Rules of Civil Procedure. Amayo v. MJ Co., 14 FSM R. 355, 362 (Pon. 2006); Senda v. Mid-Pacific Constr. Co., 6 FSM R. 440, 444 (App. 1994). Generally, a special master is given the authority to regulate all proceedings; to take all appropriate measures to perform the assigned duties fairly and efficiently; and if conducting an evidentiary hearing, to exercise the appointing court’s power to compel, take and record evidence. Fed. R. Civ. P. 53(c)(1)(A)-(C). Moreover, the Court has the power to appoint a special master to make factual findings, but the Court is not required to adopt said report as its own findings. Carlos Etscheit Soap Co. v. Do It Best Hardware, [2006] FMSC 9; 14 FSM Intrm. 152, 157 (Pon. 2006). See also In re Mid-Pacific Constr. Co.[1988] FMSC 12; , 3 FSM Intrm. 292, 307 (Pon 1988).

NOW, THEREFORE, Thomas A. Thiesen, Staff Attorney of the FSM Supreme Court, is HEREBY APPOINTED Special Master in this matter. FSM Civ. R. 53. The Special Master is directed to meet with the parties and evaluate the claims at issue. The parties are expected to fully cooperate with and provide assistance to the Special Master. The Special Master shall thereafter file a written report with a complete record of the information and documents considered in his findings along with his recommendations on the resolution of the disputed claims. The report shall be filed on or before August 3, 2018, and shall be served upon all parties.

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