FSM SUPREME COURT APPELLATE DIVISION
APPEAL CASE NO. P3-2018
(Civil Action No. 2017-003)

ESTATE OF ELIHNA GALLEN, and PATERSON
GALLEN, BRYAN GALLEN, EDWARD GALLEN,
ARVIN GALLEN, QUINCY GALLEN, PATRICK
GALLEN, and HERBERT GALLEN,
Real Parties in Interest, Appellants,
vs.

GOVERNOR OF THE STATE OF POHNPEI,
POHNPEI STATE GOVERNMENT, SPEAKER OF
THE POHNPEI LEGISLATURE, and the PUBLIC
LANDS TRUST BOARD OF POHNPEI STATE,
Appellees.
_____________________________________________

ORDER OF DISMISSAL

Decided:  April 1, 2020

APPEARANCES:

For the Real Parties in Interest:	Herbert Gallen
P.O. Box 175
Kolonia, Pohnpei FM 96941

For the Appellees:	Judah C. Johnny
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appellate Review - Dismissal
The appellate court will grant the appellees’ motion to dismiss the appeal when the deadline for the appellants to file an opening brief and appendix expired over a year ago.  Estate of Gallen v. Governor, 22 FSM R. 539, 541 (App. 2020).

Appellate Review - Dismissal
When deciding whether to dismiss an appeal because the appellant has failed to file an opening brief within the time prescribed and the appellee has moved for dismissal, an appellate court may consider:  the length of delay in filing the brief; evidence of prejudice to the appellee; the nature of the reason(s) for the appellant’s failure to file on time; and the extent of appellant’s efforts in mitigation.  Estate of Gallen v. Governor, 22 FSM R. 539, 541 (App. 2020).

Appellate Review - Dismissal
The appellants’ tardiness in filing their brief, with no explanation offered in response to a motion for dismissal, constitutes a ground for dismissal of an appeal.  Estate of Gallen v. Governor, 22 FSM R. 539, 541 (App. 2020).

Appellate Review - Dismissal
A single justice may dismiss an appeal for failure to comply with the appellate rules’ timing requirements.  Estate of Gallen v. Governor, 22 FSM R. 539, 541 (App. 2020).

Appellate Review - Dismissal
When the only reason the appellants advance for their failure to obtain counsel is that it will take time to find one; when the court has granted a number of continuances to accommodate the appellants, but the appellants have not obtained counsel or set a definite timeline for obtaining counsel, an appeal will be dismissed because the appellants have abandoned their appeal since they have failed to file a notice of appearance by counsel on their behalf and failed to file an opening brief and appendix.  Estate of Gallen v. Governor, 22 FSM R. 539, 541 (App. 2020).

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COURT’S OPINION

BEAULEEN CARL-WORSWICK, Associate Justice:

Background

The court entered an Order of Possible Dismissal on May 15, 2019 granting the appellants forty (40) days to file their Opening Brief.  The appellees filed a Motion to Dismiss the appeal on July 25, 2019; however, it was not served on plaintiffs’ attorney of record and the court was unable to grant the Motion.

On September 19, 2019, the court entered a Supplemental Order of Possible Dismissal, granting the appellants until October 11, 2019 to file and serve a Response to the Motion to Dismiss and/or file their Opening Brief and Appendices.

Plaintiffs’ Attorney Joseph Phillip filed a Notice of Discharge on October 8, 2019, advising the court that Attorney Vincent Kallop of MLSC represented the heirs of the estate.  However, Attorney Kallop has not filed a Notice of Appearance.

On October 11, 2019, Herbert Gallen filed a Motion for Enlargement of Time.  He stated that the appellants were served with the Supplemental Order of Possible Dismissal on October 8, 2019 and had only two (2) days to comply with it.  Accordingly, on January 23, 2020, the court granted the appellants additional time to February 7, 2020 to contact a qualified attorney or trial counselor to represent them and file a Notice of Appearance on their behalf.  That deadline expired more than thirty (30) days ago.

The Amended Notice of Briefing Scheduling filed January 7, 2019 required appellants to file an Opening Brief and Appendices by February 16, 2019.  That deadline expired over a year ago.

Accordingly, the court will grant the appellees’ Motion to Dismiss the appeal.

Legal Standards

Rule 31.  Filing and Service of Briefs

(a) TIME FOR SERVING AND FILING BRIEFS.  The appellant shall serve and file a brief within 40 days after the date of notice by the clerk of the appellate division pursuant to Rule 12(b) that the record is ready. . . .

. . .

(c)  CONSEQUENCE OF FAILURE TO FILE BRIEFS.  If an appellant fails to file a brief within the time provided by this rule, or within the time as extended, an appellee may move for dismissal of the appeal.

An appellate court may dismiss an appeal when the appellant has failed to file an opening brief within the time prescribed and the appellee has moved for dismissal.  The factors that the court may consider are: the length of delay in filing the brief; evidence of prejudice to the appellee; nature of the reason(s) for the appellant’s failure to file on time; and the extent of appellant’s efforts in mitigation.  Walter v. FSM Dev. Bank, 21 FSM R. 1, 3-4 (App. 2016).

The appellants’ tardiness in filing their brief, with no explanation offered in response to a motion for dismissal, constitutes a ground for dismissal of an appeal. Id. at 4.

A single justice may dismiss an appeal for failure to comply with the appellate rules’ timing requirements, including the timing requirement to file a notice of appeal.  Ruben v. Chuuk, 18 FSM R. 604, 608 (App. 2013).

Analysis

This matter has been delayed beyond deadlines set by court rules.  FSM App. R. 30(a).  The appellants’ Opening Brief and Appendices were due by February 16, 2019 and the appellants have not perfected their appeal.

Appellees contend that they are prejudiced by being unable to respond to the appeal, as appellants have not stated the issues on appeal.  They argue that this tardiness alone is grounds for dismissal, citing Nakamura v. Bank of Guam (I), 6 FSM R. 224, 227 (App. 1993).

The only reason advanced by the appellants for their failure to obtain counsel is that "it will take time to find one."  The court has granted a number of continuances to accommodate the appellants; however, the appellants have not obtained counsel or set a definite timeline for obtaining counsel.

Conclusion

The court finds that the appellants have abandoned their appeal.  They have failed to file a notice of appearance by counsel on their behalf and failed to file an Opening Brief and Appendices in support of their appeal.  Accordingly, appellees are entitled to dismissal of this action.

Therefore, pursuant to FSM Appellate Rule 31(c), appellees’ Motion to Dismiss is hereby granted and the Appeal is Dismissed with Prejudice.

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