FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2019-007

LUWICY SAMUEL,
Plaintiff,

vs.

KOLONIA TOWN MUNICIPAL GOVERNMENT,
Defendant.
_____________________________________________

ORDER

Beauleen Carl-Worswick
Associate Justice

Decided:  December 6, 2019

APPEARANCES:

For the Plaintiff:	Salomon M. Saimon, Esq.
P.O. Box 911
Kolonia, Pohnpei FM 96941

For the Defendant:	Erick B. Divinagracia, Esq.
Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Motions - For Enlargement
When any act is allowed or permitted to take place, the court, in its discretion upon a showing of cause, may enlarge the time period for undertaking the act.  If the time period for undertaking the act has already transpired, then the time period for taking the action in question can only be enlarged upon a showing of excusable neglect.  Samuel v. Kolonia Town, 22 FSM R. 397, 399 (Pon. 2019).

Civil Procedure - Motions - For Enlargement
Counsel’s explanation that he intended to take his copy of his case file with him when he traveled to Chuuk, but that he inadvertently failed to do so, does not demonstrate excusable neglect.  Samuel v. Kolonia Town, 22 FSM R. 397, 399 (Pon. 2019).

Attorney and Client - Legal Malpractice; Civil Procedure - Motions - For Enlargement
Merely neglecting to calendar deadlines as well as maintain control over files created for undertaking client representation does not constitute excusable neglect.  Instead, such actions reflect a level of activity that falls below the standards imposed upon members of the legal profession.  Samuel v. Kolonia Town, 22 FSM R. 397, 399 (Pon. 2019).

Civil Procedure - Motions - For Enlargement
Counsel’s failure to make a note to remind him of the answer’s due date and his attention to other matters, both personal and professional, does not establish excusable neglect.  Samuel v. Kolonia Town, 22 FSM R. 397, 399 (Pon. 2019).

Civil Procedure - Motions - For Enlargement
When a movant fails to demonstrate any form of excusable neglect to explain why a pretrial statement was not timely filed, the requested enlargement of time will be denied, and the late-filed pretrial statement may be stricken from the record.  Samuel v. Kolonia Town, 22 FSM R. 397, 399 (Pon. 2019).

Civil Procedure - Discovery
A pretrial statement that states that the identity of the witnesses "will be supplemented as soon as possible," is insufficient for the purpose of holding trial.  Samuel v. Kolonia Town, 22 FSM R. 397, 399 (Pon. 2019).

Civil Procedure - Sanctions
Parties that fail to abide by the terms of the court’s pretrial order may be sanctioned.  Samuel v. Kolonia Town, 22 FSM R. 397, 399 (Pon. 2019).

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COURT’S OPINION

BEAULEEN CARL-WORSWICK, Associate Justice:

Pursuant to the court’s scheduling order of October 2, 2019, trial in this case was scheduled for December 9, 2019.  In preparation for trial, the parties were required to file pretrial motions on December 2, 2019.  The Defendant did so; the Plaintiff, however, failed to do so.  Instead, the Plaintiff filed a pretrial motion on December 4, 2019, along with a motion for an enlargement of time to do so based upon her counsel’s purported failure to take his copy of his file for this case with him when he traveled to Chuuk on November 30, 2019.  Apparently, if counsel had taken his copy of his file for this matter with him to Chuuk, he would have prepared and filed a pretrial statement with the court by December 2, 2019.

For the reasons stated below, the court hereby vacates the December 9, 2019 trial date in this case.  In addition, the court hereby orders the parties to confer and submit a joint pretrial statement that conforms to the requirements described in more detail below.  This joint pretrial statement is to be filed within 30 days from the date that this order is issued.

A.  Motion to Enlarge Time for untimely filing of Pretrial Statement

Under FSM Civil Rule 6, when any act is allowed or permitted to take place, the time period for undertaking the act may be enlarged by the court in its discretion upon a showing of cause.  If the time period for undertaking the act has already transpired, however, then the time period for taking the action in question can only be enlarged upon a showing of excusable neglect.  See Ehsa v. FSM Dev. Bank, 19 FSM R. 253, 256 (Pon. 2014) (party who files a motion to enlarge time out of time must demonstrate excusable neglect for the delay).

Here, counsel has utterly failed altogether to explain why he did not file a pretrial statement with the court by December 2, 2019.  Indeed, counsel for the plaintiff merely maintains that he intended to take his copy of his file for this case with him when he traveled to Chuuk, but that he inadvertently failed to do so.  This explanation does not demonstrate excusable neglect.  Instead, it merely shows that counsel engaged in the act of traveling to Chuuk without his file for this case.  There is no explanation as to why counsel inadvertently left the file at issue here behind.  Moreover, merely neglecting to calendar deadlines as well as maintain control over files created for undertaking representation of clients does not constitute excusable neglect.  Instead, such actions reflect a level of activity that falls below the standards imposed upon members of the legal profession.  It has been well recognized by this court that "[c]ounsel’s failure to make a note to remind him of the answer’s due date and his attention to other matters, both personal and professional, does not establish excusable neglect."  Bank of Guam v. Ismael, 8 FSM R. 197, 198 (Pon. 1997).

In short, having failed to demonstrate any form of excusable neglect to explain why a pretrial statement was not filed in this case on December 2, 2019, the requested enlargement of time at issue here is denied.  See Elwise v. Bonneville Constr. Co., 6 FSM R. 570, 572 (Pon. 1994) (motion for an enlargement of time will be denied when filed after the time to file has expired and no excusable neglect has been shown).  In turn, the pretrial statement filed by the Plaintiff on December 4, 2019, is hereby stricken from the record of this case.

B.  Preparation of Joint Pretrial Statement

In lieu of trial on December 9, 2019, the parties are required to confer and submit a joint pretrial statement with the Court within 30 days from the date this order issued.  Accordingly, the court hereby vacates the date for trial in this case on December 9, 2019.  Instead, trial shall be rescheduled after the parties submit a joint pretrial statement that shall address the requirement provided for in the Court’s prior order of October 2, 2019.  Specifically, the parties shall identify each witnesses who will be called to testify at trial by his or her full name.  The pretrial statement filed by the Defendant states that the identity of the witnesses "will be supplemented as soon as possible."  This is insufficient for the purpose of holding trial.

In addition, for each cause of action outlined in the Plaintiff’s Complaint, the parties shall identify each element of the cause of action along with the standard of proof that is needed to establish liability for each cause of action.  If the Defendant believes that the Plaintiff has failed to allege a cause of action upon which any relief can be afforded to her, the Defendant shall so note in the parties’ joint pretrial statement.

In the event that the parties are unable to agree upon the terms for a joint pretrial statement, they shall so notify the court within 30 days from the date that this order is issued so that the court can take appropriate action to provide for the full adjudication of this case.

The parties are reminded that failure to abide by the terms of this Order may be grounds for sanctions.

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