FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2008-1109

FSM SOCIAL SECURITY ADMINISTRATION,
Plaintiff,

vs.

CHUUK PUBLIC UTILITY CORPORATION,
Defendant.

______________________________

ORDER DENYING MOTION TO VACATE ENTRY OF DEFAULT

Ready E. Johnny
Associate Justice

Decided: February 25, 2009

APPEARANCES:

 For the Plaintiff: Michael J. Sipos, Esq.
 P.O. Box 2069
 Kolonia, Pohnpei FM 96941

 For the Defendant: Joses Gallen, Esq.
 Chuuk Attorney General
 Office of the Chuuk Attorney General
 P.O. Box 1050
 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. FSM Social Sec. Admin. v. Chuuk Public Utility Corp., 16 FSM Intrm. 333, 334 (Chk. 2009).

Civil Procedure  Default and Default Judgments
 In determining whether good cause to vacate an entry of default exists, a court evaluates whether the default was willful, whether setting it aside would prejudice the adversary, and whether a meritorious defense is presented, and the court may also examine such things as the proffered explanation for the default, the good faith of the parties, the amount of money involved, and the timing of the motion. FSM Social Sec. Admin. v. Chuuk Public Utility Corp., 16 FSM Intrm. 333, 334 (Chk. 2009).

Civil Procedure  Default and Default Judgments
 For the purpose of a Rule 55 motion to vacate an entry of default, the meritorious defense factor has a low threshold of adequacy and may be met although a court finds a defendant's meritorious defense argument tenuous. But while the meritorious defense factor has a low threshold of adequacy in a motion to vacate a default, that threshold is not non-existent. Some meritorious defense must be asserted. FSM Social Sec. Admin. v. Chuuk Public Utility Corp., 16 FSM Intrm. 333, 334 (Chk. 2009).

Civil Procedure  Default and Default Judgments
 A Rule 55 motion to vacate an entry of default will be denied when the defendant does not cite a meritorious defense in its motion and does not even assert that it has one. FSM Social Sec. Admin. v. Chuuk Public Utility Corp., 16 FSM Intrm. 333, 334 (Chk. 2009).

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COURT'S OPINION

READY E. JOHNNY, Associate Justice:

 On February 3, 2009, the defendant filed a motion to lift entry of default. The plaintiff has not filed an opposition. Failure to oppose a motion is generally deemed a consent to the motion, 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., 6 FSM Intrm. 440, 442 (App. 1994). The reasons given by the defendant for the delay in responding is that the State Attorney General's Office does not generally represent this independent agency defendant unless requested to do so by the Governor and that the Governor did not make the request until the deadline to file an answer had passed.

 In determining whether good cause to vacate an entry of default exists A court evaluates whether the default was willful, whether setting it aside would prejudice the adversary, and whether A meritorious defense is presented, and the court may also examine such things as the proffered explanation for the default, the good faith of the parties, the amount of money involved, and the timing of the motion. FSM Dev. Bank v. Gouland, 9 FSM Intrm. 375, 378 (Chk. 2000). For the purpose of a Rule 55 motion to vacate an entry of default, the meritorious defense factor has a low threshold of adequacy and may be met although a court finds a defendant's meritorious defense argument tenuous. Id.

 The defendant does not cite a meritorious defense in its motion. It does not even assert that it has one. While the meritorious defense factor has a low threshold of adequacy in a motion to vacate a default, that threshold is not non-existent. Some meritorious defense must be asserted.

 Accordingly, no good grounds having been shown, now therefore it is hereby ordered that the defendant's motion to lift entry of default is denied.

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