FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2014-021
(Consolidated with Civil Action No. 2014-023)

FSM DEVELOPMENT BANK,
Plaintiff,

vs.

BERYSIN SALOMON and NANCY SALOMON,
Defendants.

BERYSIN SALOMON and NANCY SALOMON,
Plaintiffs,

vs.

ANNA MENDIOLA, in her capacity as President
and Chief Executive Officer of FSM Development
Bank; BRANDON TARA, in his capacity as Chief
Financial Officer of the FSM Development Bank;
JOHN SOHL, in his official capacity as Chairman
of the FSM Development Bank Board of
Directors; and FSM DEVELOPMENT BANK,
Defendants.
_____________________________________________

ORDER DENYING RECONSIDERATION AND ALLOWING INSPECTION OF DOCUMENTS

Larry Wentworth
Associate Justice

Decided:  February 6, 2019

APPEARANCES:

For the Plaintiff and Defendants (Bank, Mendiola, Tara, & Sohl):
Nora E. Sigrah, Esq.
P.O. Box M
Kolonia, Pohnpei FM 96941

For the Defendants and Plaintiffs (Salomons):
Yoslyn G. Sigrah, Esq.     
P.O. Box 3018
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Motions - For Reconsideration
The denial of a motion for reconsideration is something of a misnomer when, in denying the Salomons’ motion to reconsider, the court actually reconsiders the dismissals, but then reaches the same result.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 179 & n.2 (Pon. 2019).

Courts - Recusal
A motion to disqualify the judge should be addressed first.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 180 (Pon. 2019).

Courts - Recusal - Judicial Statements or Rulings
Speculation that the result might be more favorable with a different judge is not a basis to disqualify a judge.  Nor does a party’s displeasure with a judge’s decisions in one or more cases form a basis to disqualify a judge.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 180 (Pon. 2019).

Courts - Recusal - Judicial Statements or Rulings
A motion for disqualification ordinarily may not be predicated on the judge’s rulings in the instant case or in related cases, nor on a demonstrated tendency to rule any particular way, nor on a particular judicial leaning or attitude derived from the judge’s experience on the bench.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 180 (Pon. 2019).

Civil Procedure - Consolidation; Civil Procedure - Dismissal; Judgments
The court can, in a proper case, after notice and after severing a previously consolidated case, then dismiss that severed case, but when there was no order of severance, the cases remained consolidated and any dismissals were the partial adjudication of one (consolidated) case.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 180 (Pon. 2019).

Civil Procedure - Dismissal; Civil Procedure - Motions - For Reconsideration
When the dismissals were a partial adjudication of a consolidated case, Civil Procedure Rule 54(b) applies.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 180 (Pon. 2019).

Judgments - Final Judgment

A partial adjudication (one on less than all of the claims and parties) is not a final (and appealable) order unless the court, after expressly determining that there is no just reason for delay, expressly directs the entry of a final judgment.  When either element is absent, even if only because of oversight or a failure to appreciate that the case is one that is within Rule 54(b), the partial adjudication does not carry final judgment status.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 180-81 (Pon. 2019).

Civil Procedure - Dismissal; Judgments - Final Judgment
When both Rule 54(b) elements are absent from a partial adjudication because the court did not make any determination that there was no just reason for delay and did not direct the clerk to enter a final judgment on those claims, the order is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties, should circumstances ever arise that would warrant its revision.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 181 (Pon. 2019).

Civil Procedure - Dismissal; Civil Procedure - Sanctions - Rule 37
The court can, under Civil Procedure Rule 37, impose sanctions, including partial or complete dismissals, against parties who disobey court orders regarding discovery.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 181 (Pon. 2019).

Civil Procedure - Default and Default Judgments; Civil Procedure - Discovery; Civil Procedure - Dismissal; Civil Procedure - Sanctions - Rule 37
Rule 37 sanctions may be imposed for non-compliance with the court’s orders concerning discovery, and the court in which the action is pending may make an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 181-82 (Pon. 2019).

Civil Procedure - Discovery; Civil Procedure - Sanctions - Rule 37
The court has the inherent power to control its own docket and to fashion such orders and remedies as may be necessary to ensure the expeditious and just resolution of actions before it, but a court cannot resort to its inherent powers when Rule 37 applies because Rule 37 is the exclusive remedy for failure to comply with a production order.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 182 n.8 (Pon. 2019).

Civil Procedure - Discovery; Civil Procedure - Sanctions - Rule 37
When neither the FSM Social Security Administration nor FSM Customs and Tax is a party to the action, it is the parties who should produce their tax and social security records documents.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 182 (Pon. 2019).

Social Security; Taxation
Businesses are required by law to maintain both gross revenue and wage and salary information records.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 182 (Pon. 2019).

Civil Procedure - Discovery; Social Security
Although the Social Security Administrator is required to receive and maintain files and records of all employers and all employees, such records shall not be disclosed to any person except as may be required to administer the FSM Social Security laws.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 183 (Pon. 2019).

Civil Procedure - Discovery; Taxation
Department of Finance and Administration personnel cannot be required to produce in any court any matter or thing relating to the income taxes imposed except when it is necessary to do so for the purpose of enforcing the FSM tax laws.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 183 (Pon. 2019).

Civil Procedure - Discovery
Discovery is designed to be the cooperative sharing of information between the parties, with the expectation that this will lead to a more just result.  Parties are expected to make a good faith effort to resolve their discovery disputes themselves and to turn to court intervention as a last resort.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 183 (Pon. 2019).

Evidence
A party’s copies of the original copies in an insttution are admissible to the same extent as the institution’s originals.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 183 (Pon. 2019).

Civil Procedure - Discovery
It is the parties, not the non-parties, that must produce documents in discovery.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 184 (Pon. 2019).

Banks and Banking; Business Organizations - Corporations
An Act of Congress created the FSM Development Bank as a corporate entity.  That statute, now FSM Code Title 30, operates as the bank’s articles of incorporation, charter, and corporate registration.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 184-85 (Pon. 2019).

Civil Procedure - Dismissal; Judgments - Final Judgment
When a party’s production of its entire file, including correspondence, should satisfy the opposing six of the parties’ ten requests for production, the opposing parties’ motion to compel, to the extent Salomons’ counsel said it was needed, has thus already been granted and production ordered.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 185 (Pon. 2019).

Civil Procedure - Motions - For Enlargement; Civil Procedure - Notice
When counsel has filed a motion to continue a status conference, the continuance motion constitutes an admission of actual notice of the conference and a waiver of any requirement for record service.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 185 (Pon. 2019).

Civil Procedure - Motions - For Enlargement
A continuance motion should suggest a date and time, or dates and times, to which the conference could be continued that would be more convenient to the movants’ counsel or to both counsel.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 185-86 (Pon. 2019).

Civil Procedure - Dismissal; Civil Procedure - Parties
When some claims and parties have been dismissed, henceforth, only the current plaintiff and defendants should appear in the case caption to reflect the case’s current posture.  FSM Dev. Bank v. Salomon, 22 FSM R. 175, 186 (Pon. 2019).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

This comes before the court on the Motion for Reconsideration, filed1 on December 31, 2018, by Berysin Salomon and Nancy Salomon and on the other parties’ opposition to that motion, filed on January 14, 2019.  Also before the court is the bank’s unopposed motion to enlarge time to file pretrial motions.

The motion for reconsideration is denied.2  The Salomons are allowed to inspect certain documents and obtain copies.  All parties are granted enlargements of time to file motions.

I.  The Salomons’ Motion

The Salomons ask the court to reconsider its December 19, 2018 Order Dismissing Claims, Counterclaims, and Parties, in which the court, because of the Salomons’ repeated failures to comply with the court’s previous orders to provide discovery, (1) dismissed all of the remaining claims3 that the Salomons had raised in Civil Action No. 2014-023 before its consolidation with Civil Action No. 2014-021, thereby also dismissing Anna Mendiola, Brandon Tara, and John Sohl as parties; (2) dismissed all of the Salomons’ counterclaims, regardless of how denominated, raised in Civil Action No. 2014-021; and (3) dismissed the Salomons’ affirmative defenses of misrepresentation, unconscionability, fraud and estoppel, payment, release, accord and satisfaction, violation of usury laws, and failure to join an indispensable party.

The Salomons’ grounds for reconsideration are several.  First, they assert that their counsel did not receive notice of the December 19, 2018 status conference until December 11, 2018, one day after she had submitted to the court clerks her off-island notice that included that time period, and that she was never formally served that notice.  Second, they note that the court never ruled on their December 12, 2018 motion to continue the status conference.  Third, they note that the court did not base its dismissal on either Rule 12(b) or Rule 41, both of which govern dismissals; that there appear to be no legal authorities supporting the court’s dismissal; and that the December 19, 2018 order is not a Rule 52 findings of fact and conclusions of law or an order directing judgment be entered pursuant to Rule 58.  Fourth, the Salomons contend that the ground that they had not produced the requested discovery is factually untrue and that there should have been an evidentiary hearing for the bank to prove these claims, which the Salomons assert are unsupported.

Fifth, buried in the Salomons’ reconsideration motion is a renewed motion to disqualify the presiding judge because the case "could have turned out differently" if the current judge had disqualified himself.  Sixth, the Salomons contend that the bank should get what the Salomons call "institutional documents" directly from the government agencies and the banks that have them, and not from the Salomons.  Seventh, the Salomons contend that the bank has not produced discovery documents the Salomons have sought, and that the court has failed to rule on their motion to compel production of, certain documents.  And eighth, the Salomons contend that the court erred by, as they view it, breaking apart or "un-consolidating" the consolidated cases and then dismissing the broken apart case (Civil Action No. 2014-023) in its entirety.

II.  Analysis

A.  Renewed Disqualification Motion

The Salomons, in the fifth4 contention listed above, again move for the current presiding judge to recuse himself.  A motion to disqualify the judge should be addressed first.  FSM v. Wainit, 11 FSM R. 424, 429 (Chk. 2003).  The Salomons, alleging a perceived judicial tendency in the bank’s favor, assert that "[t]his case could have turned out differently if the Salomons’ requests for disqualification of presiding justice and assignment of new justice were honored."  Mot. for Reconsideration at 3 (Dec. 31, 2018).

Speculation that the result might be more favorable with a different judge does not form the basis to disqualify a judge.  Nor does a party’s displeasure with a judge’s decisions in one or more cases form a basis to disqualify a judge.  Peterson v. Anson, 20 FSM R. 657, 659 (App. 2016); Halbert v. Manmaw, 20 FSM R. 245, 250 (App. 2015).  "’[A] motion for disqualification ordinarily may not be predicated on the judge’s rulings in the instant case or in related cases, nor on a demonstrated tendency to rule any particular way, nor on a particular judicial leaning or attitude derived from his experience on the bench.’"  FSM v. Skilling, 1 FSM R. 464, 473 (Kos. 1984) (quoting Phillips v. Joint Legislature Comm., 637 F.2d 1014, 1020 (5th Cir. 1981)).

Accordingly, the Salomons’ renewed disqualification motion lacks any basis and can thus only be denied again.

B.  Scope and Nature of the Dismissal

In their eighth contention, the Salomons assert that the court erred by "breaking apart" or "un-consolidating" the consolidated case and then dismissing the broken apart case (Civil Action No. 2014-023) in its entirety.  The Salomons question whether the court can dismiss one case when that case is already consolidated with another case.

The court does not doubt that, in a proper case, it could, after notice and after severing a previously consolidated case, then dismiss that severed case.  But that is not what the court did here.  There was no order of severance.  What had been Civil Action No. 2014-023 remained, at all times, consolidated with this action, Civil Action No. 2014-021.  The dismissals were a partial adjudication of one (consolidated) case.

The bank contends, in its opposition, that the court’s December 19, 2018 order was a final order and that therefore the Salomons, when they moved for reconsideration, were restricted to the time frame, procedures, and grounds applicable under Civil Procedure Rule 59, which governs motions to alter or amend a final order or judgment.  The bank is mistaken.  The court’s December 19, 2018 order was not a final order.  The Salomons’ motion did not have to adhere to Rule 59.

Since the dismissals were a partial adjudication of a consolidated case, Civil Procedure Rule 54(b) applies.  A partial adjudication (one on less than all of the claims and parties) is not a final (and appealable) order unless the court, after expressly determining that there is no just reason for delay, expressly directs the entry of a final judgment.  FSM Civ. R. 54(b).  When either element is absent, even if only because of oversight or a failure to appreciate that the case is one that is within Rule 54(b), the partial adjudication does not carry final judgment status.  Iriarte v. Individual Assurance Co., 17 FSM R. 356, 358 (App. 2011) (when, even though the trial court expressly directed entry of a judgment, it never made an express determination that there was no just cause for delay, the judgment is not an appealable final judgment); Smith v. Nimea, 16 FSM R. 346, 348-49 (App. 2009) (when a trial court dismisses less than all of the claims but does not expressly make the required Rule 54(b) findings, that dismissal is not a final decision); Kitti Mun. Gov’t v. Pohnpei, 11 FSM R. 622, 628-29 (App. 2003) (when the cases were consolidated for all purposes, and when the trial court dismissed the claims between certain parties but did not make the required Rule 54(b) findings, that dismissal was not a final judgment); see also Andrew v. Heirs of Seymour, 19 FSM R. 331, 337-38 (App. 2014).

In this case, both Rule 54(b) elements are absent.  The court, in its December 19, 2018 order, did not make any determination that there was no just reason for delay, and it certainly did not direct the clerk to enter a final judgment on those claims.5  The December 19, 2018 order is therefore still "subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties," FSM Civ. R. 54(b), should circumstances ever arise that would warrant its revision.  It will remain "subject to revision" until a judgment is entered.

C.  Legal Authority for Dismissal Order

In their third contention, the Salomons note that the dismissal was not based on either Rule 12(b) or Rule 41.  They also note that the December 19, 2018 order is not a Rule 52 findings of fact and conclusions of law or an order directing judgment be entered under Rule 58.  Having eliminated what they presume are all the possible ways their claims against the bank could have been dismissed, the Salomons conclude that the dismissal cannot rest on any legal authority.

The Salomons are correct about what the dismissal order was not.  It was not an involuntary dismissal under either Rule 41(b) or Rule 12(b).  They are also correct that the December 19, 2018 order of dismissal was not a judgment entered under Rule 58 and that it did not include the findings of fact and conclusions of law a judgment rendered under Rule 52 must include.  As just explained above, this dismissal is not yet a final order or judgment.

The dismissal order does, however, clearly state that the legal authority for the dismissal is based on the Salomons’ failure to comply with the court’s May 25, 2016; January 4, 2017; March 28, 2017; and August 29, 2018 orders.6  A quick reference to those orders, particularly the May 25, 2016 order, FSM Dev. Bank v. Salomon, 20 FSM R. 431, 439 (Pon. 2016), would show that, under Civil Procedure Rule 37, the court can impose sanctions, including partial or complete dismissals, against parties who disobey court orders regarding discovery.  Rule 37 sanctions may be imposed for non-compliance with the court’s orders concerning discovery.  See FSM Dev. Bank v. Adams, 14 FSM R. 234, 248-50 & n.6, 252 (App. 2006); Amayo v. MJ Co., 14 FSM R. 355, 364 (Pon. 2006) (Rule 37(b) sanctions may be imposed on a party if the party fails to obey an order to provide or permit discovery); AHPW, Inc. v. FSM, 10 FSM R. 507, 508 (Pon. 2002); Ting Hong Oceanic Enterprises v. Ehsa, 10 FSM R. 24, 29 (Pon. 2001); Pohnpei v. M/V Miyo Maru No. 11, 8 FSM R. 281, 290-91 (Pon. 1998).  In relevant part, Rule 37 provides that:

If a party . . . fails to obey an order to provide or permit discovery . . . the court in which the action is pending may make . . .

(C) [a]n order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

FSM Civ. R. 37(b)(2).

The court’s December 19, 2018 order struck out parts of the pleadings in this case - all of the remaining claims the Salomons originally asserted in their Civil Action No. 2014-023 complaint7 (if it could still be considered a viable or operative pleading) and the Salomons’ counterclaims and affirmative defenses asserted in Civil Action No. 2014-021.  The court thus dismissed parts of the action.  If it was not clear before, it should be clear now that the December 19, 2018 order was an exercise of the court’s power, under FSM Civil Procedure Rule 37(b)(2)(C), to impose sanctions for discovery abuse.8  The court warned, as early as its May 25, 2016 order, that this would be the outcome of further non-compliance.  The Salomons chose not to heed those (repeated) warnings.9

D.  Production of Discovery and "Institutional Documents"

The Salomons, in their fourth contention, assert that they have provided the bank all of the discovery it sought and argue that the bank should be required to prove, during an evidentiary hearing, that the Salomons have not produced the discovery it sought.  The court may have been persuaded to hold such a hearing if the Salomons had not so openly contradicted this contention when they, in their sixth contention, insisted that they should not be bothered with producing what they call the "institutional documents" - their tax and social security records and their business bank records - and that the bank should obtain those documents directly from the respective governmental agencies and from the Bank of FSM and the Bank of Guam.  The Salomons’ insistence that the bank should be required to get these documents from third parties is an admission that they themselves have not complied with the court’s orders that they produce those documents for the bank’s inspection and copying.

Neither the FSM Social Security Administration nor FSM Customs and Tax is a party to this action.  Neither governmental agency makes any claims against the bank.  It is the Salomons who made claims against the bank.  Therefore, it is the Salomons who should produce those documents.  Adams v. Island Homes Constr., Inc., 10 FSM R. 430, 432 (Pon. 2001) (if a party has any of the documents sought in a discovery request, it should produce them).  The Salomons do not, and cannot, dispute that copies of those records are under their possession or control.  The court notes that the Salomons were required by law to maintain both gross revenue and wage and salary information records.  54 F.S.M.C. 151.

Moreover, those documents seem to be unobtainable from those agencies in a dispute of this nature.  Although the Social Security Administrator is required to "receive and maintain files and records of all employers and all employees . . . [s]uch records shall not be disclosed to any person except as may be required in the administration of" the FSM Social Security laws.  53 F.S.M.C. 704(1) (emphasis added).  And Department of Finance and Administration personnel cannot "be required to produce in any court any matter or thing relating to the [income] taxes imposed . . . except when it is necessary to do so for the purpose" of enforcing the FSM tax laws.  54 F.S.M.C. 116(3).  This is not an action to enforce the FSM tax laws or to administer the FSM Social Security statutes.  Thus, any attempt by the bank to obtain the Salomons’ records directly from those governmental agencies would result in those agencies’ resistance because those agencies must conform their actions to the law that applies to them.  An unnecessary collateral litigation would ensue.

That is not how discovery practice is supposed to work.  Discovery is designed to be the cooperative sharing of information between the parties, with the expectation that this will lead to a more just result.  See People of Tomil ex rel. Mar v. M/C Jumbo Rock Carrier III, 17 FSM R. 64, 68 (Yap 2010).  Parties are expected to make a good faith effort to resolve their discovery disputes themselves and to turn to court intervention as a last resort.  See Mori v. Hasiguchi, 18 FSM R. 188, 190 (Chk. 2012); M/C Jumbo Rock Carrier III, 17 FSM R. at 68; cf. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 19 FSM R. 88, 96 (Yap 2013) (parties may be instructed to consult and submit a joint plan for the completion of discovery).

The Salomons also contend that (despite court orders to the contrary) they should not have to produce their copies of these "institutional" documents because those institution’s copies of the same documents are the "original and official" copies and are thus the only copies that should be used in court proceedings.  The Salomons are mistaken.  "A duplicate is admissible to the same extent as an original . . . ."  FSM Evid. R. 1003.  The Salomons’ copies are as admissible as the institutions’.

Along with the "institutional documents," the Salomons also were ordered, several times between May 25, 2016 and August 29, 2018, to produce copies of their own written calculations for their loan indebtedness and payment history; and Berysin Salomon was ordered to file and serve his supplementary responses to interrogatories; and Nancy Salomon was ordered to file and serve her responses to interrogatories.  Salomon, 20 FSM R. at 443; Order Setting Discovery Schedule at 1-2 (Jan. 4, 2017); Order Resetting Discovery Schedule at 1-2 (Mar. 28, 2017); Order Setting Future Proceedings at 2-3 (Aug. 29, 2018); see also FSM Dev. Bank v. Salomon, 20 FSM R. 565, 574-76 (Pon. 2016) (denied reconsideration of May 25, 2016 order).  Each of those orders contained a warning that non-compliance would result in these dismissals.  Salomon, 20 FSM R. at 439, 443; Salomon, 20 FSM R. at 575; Order Setting Discovery Schedule at 2 (Jan. 4, 2017); Order Resetting Discovery Schedule at 2 (Mar. 28, 2017); Order Setting Future Proceedings at 3 (Aug. 29, 2018).  These warnings went unheeded.

The last of these orders, issued one day after the Salomons and their counsel inexplicably failed to appear at a regularly scheduled status conference, set various September 2018 deadlines to file and serve the discovery responses, and warned that the Salomons’ failure to comply would result in the court ordering dismissals on October 23, 2018 and further set an October 2, 2018 hearing date to monitor discovery progress and compliance.  Order Setting Future Proceedings at 3 (Aug. 29, 2018).  None of the ordered discovery responses were filed.  Without explanation, the Salomons and their counsel all failed to appear for the October 2, 2018 hearing.  The bank asked orally that the non-compliance dismissals be granted right then, but the court declined, noting that by its terms, the court’s August 29, 2018 order set October 23, 2018 as the dismissal date.  Order Concerning Discovery Compliance at 2 (Oct. 2, 2018).

On October 22, 2018, the Salomons filed a "response" to the court’s October 2, 2018 order asserting that they had complied with the court’s orders10 and had provided the bank the sought-after documents and that if there were any documents that bank claimed to need from FSM Social Security, the Bank of FSM, or the Bank of Guam, the bank could get those records directly from those institutions since it was the Salomons, not those institutions, that were suing the bank on various causes of action.  As stated above, since the Salomons are parties, and since they were the ones making claims ("suing"), it is the Salomons, not the non-parties, that must produce documents in discovery.  Adams, 10 FSM R. at 432 (party who has any of the documents asked for in a discovery request, should produce them).

The Salomons’ refusal to meet their discovery obligations is what has brought this case to where it is today - with the Salomons’ claims against the Bank dismissed.

E.  The Salomons’ Discovery Requests

In their seventh contention, the Salomons assert that the bank has not produced discovery documents the Salomons have sought and that the court has failed to rule on their motions to compel production of those documents.  This contention is based on the Salomons’ September 5, 2016 Request for Production of Documents, which makes ten requests for documents, and their October 28, 2016 Motion to Compel Production of Documents.  How this would entitle them to relief from the December 19, 2018 order is left unstated.  Nevertheless, the court will consider this point.

When this issue came up at the February 28, 2018 hearing, the Salomons’ counsel stated that she had not been provided the full records of the Salomons’ loan history with the bank, and therefore their motion to compel the production of documents was still outstanding.  The bank claimed that it had provided all the loan file documents.

The court therefore ordered the Salomons’ counsel to visit the bank and to inspect all of the bank’s loan records and compare the bank’s records to the documents that she had already been provided in discovery, with the bank to provide copies of documents that Salomons’ counsel did not have.  Order Concerning Production of Documents at 2 (Apr. 9, 2018).  This required a second order, Order Setting Future Proceedings at 2 (Aug. 29, 2018), for the Salomons’ counsel cooperate enough in arranging a bank visitation so that the bank’s entire loan file was made available to her.  The Salomons should now have copies of the entire loan file.

When, during the May 30, 2018 hearing, the court again asked Salomons’ counsel from the bench what were the discovery documents the Salmons had sought but the bank had not provided, counsel mentioned only the bank’s copies of the correspondence between the Salomons and the bank.  The court then ordered the bank to "produce for the Salomons the bank’s copies of the correspondence between the bank and the Salomons concerning any aspect of the loan."  Order Memorializing Rulings from the Bench at 1 (May 30, 2018).  It is undisputed that the bank then provided that correspondence.

A review of the Salomons’ September 5, 2016 request shows that the bank’s production of its entire Salomon loan file (including the Salomons’ correspondence) should satisfy the Salomons’ Requests for Production Nos. 4, 5, 6, 7, 9, and 10, because those requests all ask for documents that, if they exist, would be expected to be found among the loan file documents.  Request No. 8 asks for the bank’s articles of incorporation, charter, and corporate registration.  An Act of Congress created the FSM Development Bank as a corporate entity.  That statute, now FSM Code Title 30, operates as the bank’s articles of incorporation, charter, and corporate registration.  Thus, no order is, or was, ever necessary for Request No. 8.  The Salomons’ motion to compel, to the extent Salomons’ counsel said it was needed, has thus already been granted and production ordered11 for Requests Nos. 4-10.

Requests Nos. 1, 2, and 3 ask for the bank’s office and lending manuals, regulations, and policies in effect when the Salomons’ loan was executed (July 2003) [No. 1], when the Salomons filed Civil Action No. 2014-023 (June 2014) [No.2], and the current ones [No. 3].  The Salomons’ counsel did not mention these document requests either time (February 28 and May 30, 2018) when the court asked her from the bench to state specifically what had not been provided.  The court can see no conceivable relevance the bank’s current office and lending manuals, regulations, and policies might have for a loan executed in 2003 and whose repayment was sought in the court system in 2014, and will make no order for their production.

The court is uncertain what relevance the office and lending manuals, regulations, and policies in Requests Nos. 1 and 2 may have.  Nonetheless, the court will order that, no later than February 15, 2019, the bank shall make those documents available for the Salomons’ counsel to inspect on the bank’s premises, at some mutually convenient time agreed to by the parties.  Salomons’ counsel may then ask to have copies made of any relevant portion of those documents.

F.  Status Conference and Continuance

In their first and second contentions, the Salomons state that their counsel did not receive notice of the December 19, 2018 status conference until December 11, 2018, one day after she had submitted to the court clerks her off-island notice for that time period; that she was not formally served that notice; and that the court never ruled on their December 12, 2018 motion to continue the status conference.

The first contention can easily be disregarded because the Salomons got actual notice, through counsel, of the status conference.12  Otherwise, the Salomons’ counsel would not have known to file, on December 12, 2018, a motion to continue that conference.  The continuance motion constitutes an admission of actual notice of the conference and a waiver of any requirement for record service.  That motion does not address the Salomons’ counsel’s unexplained absences from the August 28, 2018 status conference and the October 2, 2018 hearing.

It is unclear exactly what relief the Salomons could expect because the court failed to rule on their continuance motion.  The court did have before it, the Salomons’ Response to Order Concerning Discovery Compliance (Oct. 22, 2018), which set forth the Salomons’ view then of the case’s status.  That filing also included a recommendation for future proceedings - "The Salomons resubmit their request that this case be set for trial."  Id. at 2.

The continuance motion did not suggest a date and time, or dates and times, to which the conference could be continued that would be more convenient to the Salomons’ counsel or to both counsel.  Salomons’ counsel made no effort to appear at the conference telephonically.  She had failed to appear at all, without explanation, at the two previous court proceedings.  Instead, the motion opted to seek further delay for an indeterminate length of time.  This is not a ground to subject the December 19, 2018 order to revision.

G.  Ensuing Trial

If the Salomons had been as eager or as interested, as they say they are, in having a trial on the merits of their claims against the bank, they would have provided the discovery that the court ordered, so that the bank could defend itself at trial.  The trial would have then taken place some time ago and their claims would have been resolved, one way or the other, by now.  Instead, it has been an excessive, two-and-a-half-year delay.  It is the Salomons’ repeated refusals to comply with the court’s pretrial orders that now prevent them from proceeding on their claims against the bank, nothing more.

III.  Conclusion

Accordingly, the Salomons’ motion for reconsideration is denied.  Henceforth, only "FSM Development Bank, Plaintiff, v. Berysin Salomon and Nancy Salomon, Defendants" will appear in the caption to reflect the case’s current posture.  The bank will, on or before February 15, 2019, arrange for Salomons’ counsel to inspect certain documents and have copies made of the relevant ones.  In view of the time the court took on this reconsideration motion, the time for any party to file a pretrial motion is enlarged to February 21, 2019.  The February 18, 2019 hearing date will be keep for any matters that can be addressed at that time, and the April 22, 2019 trial date also remains as set.

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