KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Seventh Kosrae State Legislature
11 FSM Intrm. 56 ( Kos. S. Ct. Tr. 2002)
 
[11 FSM Intrm. 56]
 
STATE OF KOSRAE,
Plaintiff,
 
vs.
 
SEVENTH KOSRAE STATE LEGISLATURE,
Defendant.
 
CIVIL CASE NO. 6-02
 
ORDER AND MEMORANDUM
 
Martin Yinug
Justice by Designation
 
Decided: July 23, 2002
 
APPEARANCES:
 
For the Plaintiff:                          Paul J. Simonett, Esq.
                                                     Edward T. Buckingham, Esq.
                                                     Assistant Attorneys General
                                                     Office of the Kosrae Attorney General
                                                     P.O. Box 870
                                                     Tofol, Kosrae FM 96944
 
For the Defendant:                     Paul Vignos, Esq.
                                                     Rhonda Byers, Esq.
                                                     Legislative Counsel
                                                     P.O. Box 187
                                                    Tofol, Kosrae FM 96944

* * * *

HEADNOTES

Civil Procedure ) Sanctions
     A court retains jurisdiction over a Rule 11 motion for sanctions even though the action has been dismissed. Kosrae v. Seventh Kosrae State Legislature, 11 FSM Intrm. 56, 58 (Kos. S. Ct. Tr. 2002).
 
Civil Procedure ) Sanctions
     The Kosrae Rule 11 provides that an offending attorney may be subject to appropriate disciplinary action for a wilful violation of the rule. FSM Rule 11 on the other hand contains no wilfulness requirement and provides that the court must impose an appropriate sanction. Kosrae v. Seventh Kosrae State Legislature, 11 FSM Intrm. 56, 58 (Kos. S. Ct. Tr. 2002).
 
Civil Procedure ) Sanctions
     A party seeking sanctions under the Kosrae Rule 11 must show that the filer of the offending
 
[11 FSM Intrm. 57]
pleading knew that the
pleading violated the rule and intended, or meant, to violate the rule by filing it. Kosrae Rule 11 is reserved for instances where the filer deliberately presses an unfounded claim or defense. The filer's knowledge of the pleading's defects and his intent to violate the rule, along with the other elements of a Rule 11 violation, must be shown by clear and convincing evidence. Kosrae v. Seventh Kosrae State Legislature, 11 FSM Intrm. 56, 58-59 (Kos. S. Ct. Tr. 2002).
 
Civil Procedure) Sanctions
     Because Kosrae Admission Rule 4(2) provides that the Chief Justice may, after notice and hearing, discipline an attorney for violation of the Admission Rules, a Rule 11 motion for sanctions may be denied without prejudice to the initiation of the appropriate disciplinary proceedings under Rule 4(2). Kosrae v. Seventh Kosrae State Legislature, 11 FSM Intrm. 56, 59 (Kos. S. Ct. Tr. 2002).
 
Civil Procedure) Sanctions
     To the extent that the hearing requirement of Practice Rule 4(2) has any application to a motion under Kosrae Civil Procedure Rule 11, it means that the court may comply with this requirement either by holding an oral hearing on adequate notice, or by considering written submissions from the affected parties. Kosrae v. Seventh Kosrae State Legislature, 11 FSM Intrm. 56, 59 (Kos. S. Ct. Tr. 2002).
 
Civil Procedure) Motions
     Under Kosrae Civil Procedure Rule 12, a motion to dismiss is directed to a pleading, not a motion. Rule 6(d) uses the term "responsive papers" to designate how a motion is responded to. A reply, though not provided for under Rule 6(d), has been employed by those wishing to address new matter raised in a response. Kosrae v. Seventh Kosrae State Legislature, 11 FSM Intrm. 56, 59-60 (Kos. S. Ct. Tr. 2002).

* * * *

COURT'S OPINION

MARTIN YINUG, Justice by Designation:

     On June 11, 2002, the defendant Seventh Kosrae State Legislature ("the Legislature") filed its motion for sanctions under Rule 11 of the Kosrae Rules of Civil Procedure against Paul Simonett ("Simonett"), an assistant attorney general who represents the plaintiff state of Kosrae ("Kosrae") in this case, and Ron Bickett ("Bickett"), the Kosrae attorney general. The motion is not frivolous. For the reasons below, the motion is denied without prejudice to the Legislature's pursuing sanctions against Simonett and Bickett under Rule 4(2) of the Rules for Admission to Practice Law in the State of Kosrae. Those rules are adopted by Kosrae General Court Order 2001-5.

     The Legislature moves to amend the caption of this case to In re Proposed Legislation, Office of the Attorney General of Kosrae v. Seventh Kosrae State Legislature. The Legislature maintains that the real plaintiff is actually the attorney general. The real parties in interest are the officials for whom a pay raise is sought. The motion is denied.

     Kosrae has filed an unopposed motion to file its Rule 11 motion under seal. Rule 11 of the Kosrae Rules of Civil Procedure contains no requirement that motions under that rule be sealed. This case raises issues of public interest. The motion is denied. No submissions in this case will be sealed.

     In light of the disposition of the Legislature's motion for sanctions, all remaining pending motions are denied.

[11 FSM Intrm. 58]

Discussion

     As a preliminary matter, the court notes that the complaint in the case was dismissed and judgment entered on May 29, 2002. The Legislature's sanctions motion was filed on June 11, 2002. This court retains jurisdiction over the Rule 11 motion. See 2 James Wm. Moore et al., Moore's Federal Practice 11.23[5] (3d ed. 1999) ("Dismissal of an action does not deprive a district court of its jurisdiction to impose sanctions under Rule 11" (footnote omitted).)

     Rule 11 of the Kosrae Rules of Civil Procedure, under which the Legislature brings its motion, is very different from Rule 11 of the FSM Rules of Civil Procedure. While both rules are based on Rule 11 of the United States Federal Rules of Civil Procedure, the Kosrae rule adopts the version of the U.S. rule that was in effect prior to its amendment in 1983. To compare, Kosrae Rule 11 provides in pertinent part as follows:

The signature of an attorney or trial counselor constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as shame [sic ) i.e., "sham"] and false and the action may proceed as though the pleading had not been served. For a wilful violation of this rule an attorney or trial counselor may be subjected to appropriate disciplinary action.

(emphasis added). In contrast, Rule 11 of the FSM Rules of Civil Procedure provides as follows:

The signature of an attorney or trial counselor constitutes a certificate by the signer that the signer has read the pleading, motion or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fees [sic].

(emphasis added). The Kosrae Rule 11 provides that an offending attorney may be subject "to appropriate disciplinary action" for a "wilful" violation of the rule. The FSM rule on the other hand contains no wilfulness requirement and provides that the court shall "impose . . . an appropriate sanction." In the event that a violation of the rule is found, the penalties under Kosrae Rule 11 are discretionary while those under the FSM rule are mandatory. Further, the Kosrae rule is framed in terms of a disciplinary proceeding, while the FSM rule provides for a sanction outright. Finally, the party seeking sanctions under the Kosrae rule must demonstrate that the alleged violation was "wilful." "Wilful", and its adverb form "willfully," describe actions that are intentional, knowing, or voluntary, as distinguished from accidental. Black's Law Dictionary 1600 (6th ed. 1990). Thus, the party seeking sanctions under the Kosrae rule must show that the filer of the offending pleading knew that the complaint violated Rule 11 and intended, or meant, to violate the rule by filing the pleading. Thus, under the pre-1983 version of the rule, Rule 11 is reserved for instances where the filer "deliberately presses

[11 FSM Intrm. 59]

an unfounded claim or defense." 2 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure  1334, at 503 (1969). The filer's knowledge of the pleading's defects and his intent to violate the rule, along with the other elements of a Rule 11 violation, must be shown by clear and convincing evidence. See In re Sanction of Woodruff, 10 FSM Intrm. 79, 88 (App. 2001). It follows that the pre-1983 version of the United States rule that has been adopted in Kosrae sets the bar very high, so to speak, in establishing a Rule 11 violation.

  Nichols v. Alker, 126 F. Supp. 679 (E.D.N.Y. 1954), aff'd, 231 F.2d 68 (2d Cir.), cert. denied, 352 U.S. 829 (1956), addresses the pre-1983 version of the United States Rule 11 that is now in effect in Kosrae. In Nichols, one of the defendants sought Rule 11 sanctions against the plaintiff's attorney. The court struck the complaint from the court files as a sham. 126 F. Supp. at 684. But when it came to disciplining the offending attorney, the court noted that the applicable rules of court provided that the chief judge had charge of all matters relating to bar discipline. Id. On this basis the motion to discipline the attorney was denied, but without prejudice to institution of disciplinary proceedings under the applicable rule. Id. Similarly, Rule 4(2) of the Rules of Admission to Practice Law in the State of Kosrae, which are set out in Kosrae General Court Order 2001-5, provides that an attorney "may be disciplined by the Chief Justice after notice and hearing for violation of these Rules." Following Nichols, the Legislature's motion for sanctions is denied, but without prejudice to the Legislature's initiating the appropriate disciplinary proceedings under Rule 4(2) of the Kosrae Rules of Admission to Practice.

     The court notes that Kosrae Rule 11 contains no hearing requirement. This is in contrast to the provision in Kosrae General Court Order 1997-4 ("GCO 1997-4) that a motion for sanctions will "automatically" be set for hearing. GCO 1997-4 is issued pursuant to Rule 78 of the Kosrae Rules of Civil Procedure, which states that "[t]o expedite its business, the court may make provisions by orders for the submission and determination of motions without oral hearing." Holding a hearing in this case presents logistical challenges, where the court sitting as a designated justice is in Yap, and the parties are in Kosrae. Since the setting of a hearing on a motion of this type is provided for in a court order and not by rule, and since the court reads Kosrae Civil Rule 78 to confer sufficient discretion upon the court to effectively vacate GCO 1997-4 as it applies to specific cases, the court does so here.

     Kosrae General Court Order 2001-5 ("GCO 2001-5) also arguably bears on the hearing question. GCO 2001-5 is the means by which the Kosrae Rules for Admission to Practice Law ("the Practice Rules") have been adopted. Rule 4(2) of the Practice Rules provides that an attorney may be disciplined "after notice and hearing." As previously discussed, this involves a procedure that is initiated with the Chief Justice of the Kosrae State Court. But to the extent that the hearing requirement of Practice 4(2) has any application to a motion under Rule 11 of the Kosrae Rules of Civil Procedure, the phrase "after notice and hearing" contained in Practice Rule 4(2) is similar to the phrase "after opportunity for hearing" contained in Rule 37(a)(4) of both the FSM Rules of Civil Procedure and the U.S. Rules of Federal Civil Procedure. Rule 37 addresses sanctions in the event of a party's failure to make discovery. Commenting on Rule 37(a)(4)(A) and (B) of the U.S. rule, Prof. Moore has noted that "[c]ourts may comply with this requirement [to provide opportunity for hearing] either by holding an oral hearing on adequate notice, or by considering written submissions from the affected parties." 7 James Wm. Moore et al., Moore's Federal Practice  37.23[5] (3d ed. 1999) (footnote omitted).

     The court has held no hearing on the pending motions, where the issues have been copiously briefed. For the reasons discussed, the court is disinclined to the view that a hearing is required.

     Lastly, the court notes that plaintiff Kosrae, by which is meant the executive branch of the Kosrae state government, filed on June 26, 2002, its motion to dismiss the Legislature's motion for sanctions. Under Rule 12 of the Kosrae Rules of Civil Procedure, a motion to dismiss is directed to a

[11 FSM Intrm. 60]

pleading, not a motion. Rule 6(d) of the Kosrae Rules of Civil Procedure uses the term "responsive papers" to designate how a motion is responded to. A reply, though not provided for under Rule 6(d) of the Kosrae civil rules, has been employed by those wishing to address new matter raised in a response. Following the motion/response/reply format facilitates the organization of court files, especially as here where numerous submissions have been filed in a short time. The parties should use this format.

* * * *