Skibang v Aldan [2011] PWSC 10; Civil Appeal 045.2010 (14 April 2011)

IN THE SUPREME COURT OF THE REPUBLIC OF PALAU
APPELLATE DIVISION

CIVIL APPEAL NO. 10-045
(Civil Action No. 09-148)

YOULSAU SKIBANG, UMANG DEMEI and KUKONG DEMEI
Appellants

v.

MASAKO ALDAN and NGIRAMETUKER SEBUU
Appellees.

Decided: April 14, 2011

Counsel for Appellants: Pro se

Counsel for Appellees: Mariano W. Carlos

BEFORE: ALEXANDRA F. FOSTER, Associate Justice; KATHERINE A. MARAMAN, Part-Time Associate Justice; ROSE MARY SKEBONG; Associate Justice Pro Tem.

Appeal from the Trial Division, the Honorable KATHLEEN M. SALII, Associate Justice, presiding.

ORDER

PER CURIAM:

1. Before the Court is Appellants' third motion to extend time to file an opening brief in this appeal. For the reasons set forth below, the Court DENIES the motion to extend time and DISMISSES the appeal.

I. BACKGROUND

2. Appellants filed their notice of appeal on November 26, 2010. Appellants' opening brief was due on or before January 17, 2011. When this date passed without Appellants filing their opening brief or a motion to extend time to do so, this Court issued an Order to Show Cause as to why the case should not be dismissed for failure to prosecute. Appellants thereafter filed a response to the show cause order, seeking an extension of time to March 7, 2011 to file their opening brief. Appellants explained that they had been unsuccessful in their attempts to secure counsel to represent them in this matter. Appellants further stated that they did not know anything about the process or procedure for taking an appeal and that they did not know their opening brief was due on January 17, 2011. On February 3, 2011, the Court, finding excusable neglect, granted Appellants' motion to extend time to obtain counsel and file an opening brief, but only until February 24, 2011.

3. On February 21, 2011, Appellants filed a second motion to extend time to obtain counsel and file an opening brief. In support, Appellants stated that they had consulted with at least five lawyers who declined to represent them in this appeal and that they continued to look for counsel. On February 22, 2011, Appellees filed an objection to Appellants' motion to extend time, arguing that Appellants had not shown truly extraordinary circumstances to extend time. On February 23, 2011, this Court found extraordinary circumstances to justify granting the motion to extend time until March 23, 2011. The Court informed Appellants that if they did not file an opening brief on or before March 23, 2011, their appeal may be dismissed.

4. On March 23, 2011, Appellants filed the present unopposed third motion to extend time to file an opening brief, requesting a four-month extension to July 29, 2011. In support of the motion, Appellants state that the attorney they have found to represent them has other commitments that will not allow her to review the file and prepare an opening brief until the end of July.

II. DISCUSSION

5. Rule 26 of the Rules of Appellate Procedure provides that "[n]o successive motions for enlargement will be granted absent the showing of extraordinary circumstances." ROP R. App. P. 26(c). Black's Law Dictionary defines extraordinary circumstances as "a highly unusual set of facts that are not commonly associated with a particular thing or event." Black's Law Dictionary 260 (8th ed. 2004). In assessing each successive request, the Court is cognizant of the intent of Rule 26(c), which is to "prevent parties from the dilatory practice of requesting continuance after continuance and extension after extension." Order, Fritz v. Koror State Pub. Lands Auth., Civ. App. No. 10-012 (September 21, 2010).

6. Here, the original deadline was January 17, 2011. Since that deadline, this Court has granted Appellants two extensions, affording them over two additional months to file their opening brief. Appellants now present a third motion to extend time, offering much the same explanation as the first two motions: that they have had difficulty obtaining counsel. The Court is not convinced by Appellants' argument. This appeal has been open now for over four months, and Appellants have shown little effort to adhere to the deadlines set forth by the Rules of Appellate Procedure or this Court's generous extensions of time. The usual delay associated with seeking counsel is not such a "highly unusual set of facts" to warrant three prolonged extensions of time to file an opening brief. Appellants' continued requests for extensions of time are the very kind of "dilatory practice" that Rule 26(c) seeks to prevent. Accordingly, the Court, finding no extraordinary circumstances, DENIES Appellants' motion to extend time to file the opening brief.

7. Rule 31 of the Rules of Appellate Procedure gives the Court discretion to dismiss an appeal for failure to timely file an opening brief. ROP R. App. P. 31(c). The Court may refuse to dismiss an appeal when an appellant shows good cause or excusable neglect for failing to timely file. A.J.J. Enterprises v. Uchel, 3 ROP Intrm. 69, 70 (1992). In the present case, the Court granted Appellants multiple extensions of time to obtain counsel and file their opening brief. It even warned Appellants that their failure to file may result in dismissal of their appeal. Given this history, Appellants' explanation that they could not obtain counsel any earlier because of conflicts or other reasons does not amount to good cause or excusable neglect. Moreover, Appellants' request for an additional four months will cause Appellees to wait a total of eight months before they can respond to the arguments. Such a lengthy delay prejudices Appellees and undermines this Court's interest in the timely finality of judgments. Accordingly, Appellants' appeal is hereby DISMISSED.

SO ORDERED this 14th day of April, 2011.

ALEXANDRA F. FOSTER
Associate Justice

KATHERINE A. MARAMAN
Part-Time Associate Justice

ROSE MARY SKEBONG
Associate Justice Pro Tem