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Stephen v Chuuk [2005] FMSC 52; 13 FSM Intrm. 529 (Chk. 2005) (8 December 2005)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Stephen v Chuuk, [2005] FMSC 52; 13 FSM Intrm. 529 (Chk. 2005)

FOUSTINO STEPHEN,
Plaintiff,

vs.

STATE OF CHUUK and GOVERNOR
ANSITO WALTER,
Defendants.

CIVIL ACTION NO. 2005-1007

ORDER GRANTING MOTION TO COMPEL

Dennis K. Yamase
Associate Justice

Decided: December 8, 2005

APPEARANCES:

For the Plaintiff:
Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendants:
Joses Gallen, Esq.
Acting Attorney General
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure - Motions
Failure to oppose a motion is generally deemed a consent to the motion, but even if there is no opposition, the court still needs good grounds before it can grant the motion. For a motion to be granted, even if unopposed, it must be well grounded in law and fact. Stephen v. Chuuk, [2005] FMSC 52; 13 FSM Intrm. 529, 531 (Chk. 2005).

Civil Procedure - Admissions
A party may serve upon any other party a written request for the admission of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to the statements or opinions of fact or of the application of law to fact and that each matter will be deemed admitted unless, within 30 days after service of the request, or within such other time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter. Stephen v. Chuuk, [2005] FMSC 52; 13 FSM Intrm. 529, 531 (Chk. 2005).

Civil Procedure - Admissions
The court will order the defendant to respond to the plaintiff’s requests for admissions by a certain date, and if it does not respond, all of those requests will be deemed admitted, except for any specific request that calls for a legal conclusion. A request for admission that calls for a legal conclusion is beyond the scope of Rule 36 because requests for admissions are not to be used to answer questions of law or to have the responding party ratify the legal conclusions the requestors attach to the case’s operative facts. Stephen v. Chuuk, [2005] FMSC 52; 13 FSM Intrm. 529, 531 (Chk. 2005).

Civil Procedure - Discovery
A party whose motion to compel discovery is granted is entitled to reasonable expenses incurred in obtaining the order, including attorney fees and when counsel’s supporting affidavit attached to the motion, asks for an award of $130 attorney fees for 1.3 hours of attorney work at $100 per hour as his reasonable expense incurred in obtaining this order, the non-movant had notice of the amount sought as a sanction and had an opportunity to be heard, not only on the motion itself, but also as to the requested fee sanction’s reasonableness. Stephen v. Chuuk, [2005] FMSC 52; 13 FSM Intrm. 529, 531-32 (Chk. 2005).

Civil Procedure - Admissions; Civil Procedure - Discovery
Rule 37(a) attorney fee awards do not apply to a failure to respond to a request for admissions, because the automatic admission from the failure to respond is a sufficient remedy for the requesting party, so when part of the motion to compel concerned the movant’s request for admissions, the court will reduce the attorney fee award requested for the motion to compel discovery. Stephen v. Chuuk, [2005] FMSC 52; 13 FSM Intrm. 529, 532 (Chk. 2005).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

This comes before the court on the plaintiff’s Motion to Compel Discovery Responses and to Deem Requests for Admissions Admitted, filed November 17, 2005. No opposition has been filed.

The motion asks that the court compel the defendant State of Chuuk to respond without objection to his Request for Production of Documents to State of Chuuk and his Interrogatories to State of Chuuk, both served by mail on July 25, 2005 and filed on August 3, 2005 and that his Request for Admissions to State of Chuuk, served and filed on the same dates, be deemed admitted. The motion further asks that the plaintiff, Foustino Stephen, be awarded the expenses incurred in bringing the motion and that an enlargement of time to file pretrial motions be granted so that he may file a summary judgment motion based, in part, upon the discovery responses to be compelled.

Failure to oppose a motion is generally deemed a consent to the motion, Naoro v. Walter, [2003] FMSC 17; 11 FSM Intrm. 619, 621 (Chk. 2003); Actouka v. Etpison, [1983] FMSC 3; 1 FSM Intrm. 275, 276 (Pon. 1983); FSM Civ. R. 6(d), but even if there is no opposition, the court still needs good grounds before it can grant the 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 to compel Chuuk to respond to Stephen’s interrogatories and his request for the production of documents is therefore granted. Chuuk shall make those responses no later than January 13, 2006.

"A party may serve upon any other party a written request for the admission . . . of the of aty matters wirs within the scope of Rule 26(b) set forth in the request that relate to the statements or opinions of fact or of the application of law to fact" and that each matter will bmed "ted unless, withiwithin 30 n 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter." FSM Civ. R. 36(a). Chuuk has not responded to Stephen’s request for admissions.

Because Chuuk must still respond to Stephen’s discovery requests for production and interrogatories, the court will permit Chuuk to respond to the requests for admissions within the same time frame. Chuuk will therefore respond to Stephen’s requests for admissions no later than January 13, 2006. If it does not, all of those requests will be deemed admitted, FSM Civ. R. 36(a), except for any specific request that calls for a legal conclusion. A request for admission that calls for a legal conclusion is beyond the scope of Rule 36. English v. Cowell, 117 F.R.D. 132, 135 (C.D. Ill. 1986). Requests for admissions are not to be used to answer questions of law or to have the responding party ratify the legal conclusions the requestors attach to the case’s operative facts. Lakehead Pipe Line Co. v. American Home Assurance Co., 177 F.R.D. 454, 458 (D. Minn. 1998).

Stephen asks for Rule 37 sanctions for the expenses of bringing this motion. A party whose motion to compel discovery is granted is entitled to reasonable "reasonable expenses incurred in obtaining the order, including attorney or trial counselor fees." FSM Civ. R. 37(a)(4). Stephen asks, in his counsel’s supporting affidavit attached to the motion, for an award of $130 attorney fees for 1.3 hours of attorney work at $100 per hour as his reasonable expense incurred in obtaining this order. Chuuk therefore had notice of the amount sought as a sanction and had an opportunity to be heard, not only on the motion itself, but also as to the requested fee sanction’s reasonableness. Chuuk, however, did not take that opportunity.

The court finds that the hourly rate requested is reasonable. Rule 37(a), however, "does not apply to a failure to respond to a request for admissions," because the automatic admission from the failure to respond is a sufficient remedy for the requesting party. 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2265, at 581 (2d ed. 1994)t Part of the present motion concerns Stephen’s request for admissions. The court will therefore award $110 in attorney’s fees as Stephen’s reasonable expenses.

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