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HEADNOTES

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COURT'S OPINION

CAMILLO NOKET, Chief Justice:

This came before the court on February 10, 2012, to hear the defendant's Rule 59(e) Motion to Alter or Amend Judgment with supporting memorandum and exhibits, filed January 13, 2012, and the Plaintiff's Response to Defendant's Rule 59(e) Motion, filed January 18, 2012. The motion is denied. The court's reasons follow.

I.

The defendant, Governor Johnson S. Elimo, seeks reconsideration of the court's January 5, 2012 ruling that although Governor Elimo was filling out the remainder of his predecessor's unexpired term and could have retained "the existing cabinet officials and special assistants appointed by Governor

[18 FSM R. 201]

Simina without submitting their names for reconfirmation . . . [s]ince the officials appointed by former Governor Simina have resigned, they need to be renominated." Order Granting Summary Judgment and Declaratory Relief at 7 (Jan. 5, 2012). Elimo contends that none of the officials in question resigned or intended to resign, but that they, at the Governor's polite request, merely submitted "courtesy resignations" that were offers to resign conditioned on the Governor's acceptance of the offer to resign and that if he did not accept the resignation it was null and void.

Elimo asks the court to alter or amend its judgment under Chuuk Civil Procedure Rule 59(e). The grounds on which a court may grant a new trial or alter or amend the judgment is either when the court has made "a manifest error of law or fact, or for newly discovered evidence." Chk. Civ. R. 59(a). Elimo asserts that the court has made manifest error of fact in that his cabinet officers and principal advisors did not actually resign or relinquish their posts, nor did they intend to. The court ruled that "Governor Elimo evidently asked for and received 'courtesy resignations' from all the cabinet members and special assistants that Governor Simina had appointed." Order Granting Summary Judgment and Declaratory Relief at 2 (Jan. 5, 2012). Elimo asserts that this ruling is a manifest error. Elimo contends that the Senate "provided the court with only the scantest [sic] evidentiary records and no legal authority whatsoever."¹ Rule 59(e) Mot. Alter or Amend J. at 2.

Elimo contends that the copies of his request and the cabinet members' responses, which he characterizes as only offers to resign and which he now provides for the first time, completely refute any allegation or finding that the government officials actually resigned. These supporting exhibits are further bolstered by affidavits executed by these same officials in January 2012, averring that they had not resigned, they had remained at their posts, and that they had never intended to resign or relinquish their offices unless it was the Governor's wish that they not continue in office. These supplemental materials form the basis for Elimo's reconsideration motion.

II.

A litigant may, under Rule 59(e), move for reconsideration of an order granting summary judgment or move to alter or amend the judgment derived from that order and the court has a responsibility to hear that motion. Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). But summary judgment will ordinarily "not be altered or vacated on the basis of supplemental exhibits or affidavits filed after summary judgment is granted," particularly when the party seeking to alter or amend the judgment "has made absolutely no showing that the additional evidence offered could not have been timely submitted in the exercise of reasonable diligence." Jensen v. Conrad, 570 F. Supp. 114, 128-29 (D.S.C. 1983), aff'd in part and dismissed in part on other grounds, 747 F.2d 185 (4th Cir. 1984), cert. denied, 470 U.S. 1052 (1985). "Motions for reconsideration . . . cannot in any case be employed as a vehicle to introduce new evidence that could have been adduced during pendency of the summary judgment motion." Keene Corp. v. International Fid. Ins. Co., 561 F. Supp. 656, 665 (N.D. Ill. 1982) (citing Walker v. Hoffman, 583 F.2d 1073, 1075 (9th Cir. 1978); Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir. 1972)), aff'd, 736 F.2d 388, 393 (7th Cir. 1984).

In an analogous situation, our appellate division held that when no valid reason was given why a party was unable to present particular evidence at trial, it will not be considered "newly discovered." Miochy v. Chuuk State Election Comm'n, 15 FSM Intrm. 426, 428 (Chk. S. Ct. App. 2007) (citing FSM

[18 FSM R. 202]

v. Kansou, 14 FSM Intrm. 273, 276 (Chk. 2006). "The reason for only allowing a rehearing where there is bona fide newly discovered evidence is that the court 'cannot afford litigants the opportunity to try again and again, on a hit and miss basis, to present evidence upon a particular issue.'" Miochy, 15 FSM Intrm. at 428 (quoting FSM v. Tipen, 1 FSM Intrm. 79, 94 (Pon. 1982)). Thus, when no valid reason is given for failing to produce evidence at trial and no new evidence is presented that was located after the close of trial, it will not be fruitful to plow the same ground again, and a motion for a new trial will be denied. Miochy, 15 FSM Intrm. at 428 (citing Kansou, 14 FSM Intrm. at 276; Nena v. Kosrae (III), 6 FSM Intrm. 564, 567 (App. 1994); Tipen, 1 FSM Intrm. at 94).

In this case, no valid reason was given why Elimo could not have produced, as part of his summary judgment motion or his opposition to the Senate's summary judgment motion, the evidence now relied on to seek reconsideration. It was all available to him before the cross motions for summary judgment were filed and before those motions were heard. Although the cabinet members' affidavits were only executed in January 2012 to support the pending motion, they could easily have been executed in November or October 2011, if Elimo had asked for them then. Although some of the officials' "resignation" letters may in fact be read as conditional offers to resign, "'[a] litigant may not sit idly by during the course of litigation and then seek to present additional defenses in the event of an adverse outcome.'" Arthur v. Pohnpei, 16 FSM Intrm. 581, 599 (Pon. 2009) (quoting Griffin v. Federal Deposit Ins. Corp., 831 F.2d 799, 803 (8th Cir. 1987)).

III.

Thus, none of the evidence that would support a claim that the cabinet officers' resignations were either conditional or were merely offers to resign is newly discovered evidence. Without this supplemental evidence, Elimo has no basis on which to assert that the court made a manifest error of fact and that it should alter or amend the January 5, 2012 judgment. Based on the facts before the court at the time the parties’ cross motions for summary judgment were heard, the court made no manifest error of fact.

Elimo does not contend that the court's January 5, 2012 ruling was a manifest error of law. His contentions are factual – that the cabinet officers did not, in fact, resign or relinquish their offices so, based on the court's January 5, 2012 ruling, they should remain in office. Summary judgment will not be altered on the basis of Elimo's supplemental exhibits and affidavits since that additional evidence could have been timely submitted if he had exercised due diligence. Jensen, 570 F. Supp. at 128-29. Accordingly, the Rule 59(e) motion to reconsider must be denied.

Footnotes:

¹ At the hearing, the Senate's counsel asserted that this came close to a Rule 11 violation because the Senate had provided twelve exhibits, in each of which Governor Elimo stated that he could not accept a different person's resignation, thus providing unrebutted evidence that those persons had in fact resigned. Counsel, however, did not make a Rule 11 motion.