Lokot and Kabua v Kramer [1997] MHSC 2; 2 MILR 89 (29 January 1997)

2 MILR 89

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S. Ct. CIVIL NO. 96-03
(High Ct. Civil No. 1992-056)

BARRIS LOKOT and PAUL KABUA, previously substituted in place of SELVENIOUS KONOU (Deceased), and MANINI CLANRY,
Plaintiff-Appellants,

-v-

JERRY KRAMER, MERCY KRAMER, PACIFIC INTERNATIONAL, INC., et al.,
Defendants-Appellees.

APPEAL FROM THE HIGH COURT

JANUARY 29, 1997

FIELDS, C.J.
DANZ, A.J. pro tem,¹ and PLASMAN, A.J. pro tem²

SUMMARY:

This is an appeal from a decision of the High Court to dismiss appellants' complaint for various errors and the failure to prosecute, which prevented defendants from having their expert available for trial due to the expert's death during the lapse of time. The Supreme Court affirmed the High Court finding it had not abused its discretion in dismissing the complaint.

DIGEST:

1. LAND RIGHTS - Disposition on Merits: This court agrees with the High Court that the land rights of the Marshallese people are of extreme importance and that the drastic procedure of preventing a full hearing in court should be avoided if at all possible.

2. ATTORNEYS - Agent for Client: Parties are liable for the violations of their attorneys.

3. APPEAL AND ERROR - Review - Discretionary Matters - Dismissals: An appellate court can only reverse a trial court's decisions to dismiss a case for failure to prosecute if the appellate court finds the trial court abused its discretion and its decisions is "clearly erroneous."

4. APPEAL AND ERROR - Same - Same: It is presumed the trial judge acted reasonably and reversal may occur only if it is plain either that the dismissal was a mistake or that the Judge did not consider factors essential to the exercise of a sound discretion.

OPINION OF THE COURT BY FIELDS, C.J.

On June 26, 1992, Plaintiffs Selvenious Konou and Manini Clanry filed a complaint in the High Court through their attorney, Selvenious' daughter. The High Court on December 17, 1992, ordered plaintiff to file a supplemental complaint or an amended complaint to cure jurisdictional defects. On December 31, 1992, plaintiffs filed their first amended complaint. This complaint sought to eject defendants from the premises they had been occupying for the past 15 years and for damages.

On January 6, 1993 defendants filed their answer and counterclaim. The dispute arises over the alap and dri-jerbal rights to an area plaintiffs claim to be Mejben Island. Defendants deny occupying an area formerly designated as Mejben Island, but rather (Mercy Kramer only) claims such rights only to the land they are occupying.

On January 11, 1993, defendants filed the first motion to dismiss for plaintiffs' failure to comply with MIRCP 17(a) for failure to bring the action in the name of the real party in interest, the alap Neikoj and for failure to comply with MIRCP 19, failure to join the alap Neikoj and the Iroijlablab, Ainata Kabua. On June 23, 1993, the court found alap Neikoj's joinder was required. Also on June 23, 1993, the High Court held a pre-trial conference ordering plaintiffs to comply with certain orders prior to November 30, 1993, and defendants to do the same 30 days later. Neither party complied. Various violations of orders and procedures are set forth and that plaintiffs failed to comply with them.

On August 11, 1994, plaintiffs filed a motion to substitute a party and thereafter failed to appear at the hearing on the motion. Thereafter, plaintiff filed motions without serving defendants (motion to set a hearing on issue of substitution of parties).

Between August 1994 and February 1996, plaintiffs filed no documents. Defendants filed a motion to dismiss the complaint for plaintiffs' failure to prosecute their case to trial and for their various violations of rules of procedures and orders of the court. Defendants only expert witness as to the location of Mejben Island died on January 28, 1995.

On May 24, 1996, the High Court dismissed the complaint with prejudice finding that plaintiffs' various violations and failure to bring the matter to trial has prevented defendants from having their expert available for trial due to the lapse of time and his death. The High Court found no alternative lesser sanction available.

[1] This court agrees with the High Court that the land rights of the Marshallese people are of extreme importance and that the drastic procedure of preventing a full hearing in court should be avoided if at all possible. The court feels that the lapse of 15 years from the time defendants occupied the land until suit was filed by plaintiffs was unreasonable but this has not been raised by the parties.

[2] This court rejects plaintiffs' argument that the parties should not be held liable for the violations of their attorney. The U.S. Supreme Court clearly rejected any such argument in Link v. Wabash Railroad Co. and citing Smith v. Aver, 101 U.S. 320, 326:

"There is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's unexpected conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney."

This court agrees and adopts this concept here in the Marshall Islands.

The question then remains: Is there a less drastic sanction than dismissal with prejudice in a case involving land rights, as set forth in this case? This Court finds no sanction other than dismissal was available to the trial court.

A case is subject to dismissal for failure to prosecute. MIRCP 33 (B) provides in part:

For failure of the plaintiff to prosecute or to comply with these rules or any order of the Court, a defendant may move for dismissal of any action or any claim against him.

The decision to dismiss for want of prosecution requires that the court weigh conflicting policies: on the one hand, the courts need to manage its docket, the Republic interest in expeditious resolution of litigation, and the risk of prejudice to defendants from delay; and on the other hand the policy favoring disposition of cases on their merits. These factors were weighed by the trial court.

Clearly, defendants have been prejudiced by the delay due to the death of their expert witness, Dr. Sherman Wengerd, who could have testified to the location of Mejben Island. Plaintiff's claims rights to this former island and claim that defendants are now occupying it. Defendants deny a claim to that area, but claim rights only to the land conveyed to them in 1980. This conveyance was witnessed by the esteemed President, Amata Kabua, who has died since the oral arguments were heard on this case. While the President, Amata Kabua, may have been a witness, he also is now not available.

[3] The standard for review for this Court is: Did the trial court abuse its discretion in ordering a dismissal for failure to prosecute? The trial court's findings are reversible only if clearly erroneous.

[4] It is presumed the trial judge acted reasonably and reversal may occur "only if it is plain either that the dismissal was a mistake or that the judge did not consider factors essential to the exercise of a sound discretion." Johnson vs. Kaminaga, 34 F.3d 466 (7th Cir. 1994).

This Court cannot say that the trial Judge committed any error in Judgment in the conclusion it reached upon weighing all relevant factors. (See Nealey vs. Transportation Martima Mexicana S.A., 662 F.2d 1275 (9th Cit. 1930).

Therefore, the trial Court's dismissal with prejudice is AFFIRMED.

__________

¹ Honorable Gregory J. Danz, Member of the Nuclear Claims Tribunal, sitting by designation by the Cabinet.

² Honorable James Plasman, Member of the Nuclear Claims Tribunal, sitting by designation by the Cabinet.