*    *    *    *

HEADNOTES

*    *    *    *

COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

On August 10, 2011, the court, on motion filed by the defendant State of Chuuk on March 23, 2011, granted the defendants summary judgment against the plaintiff, David Welle. Welle v. Chuuk Public Utility Corp., 17 FSM Intrm. 609 (Chk. 2011). This now comes before the court on Welle's Motion to Set Aside Order of Dismissal, filed February 8, 2012, and Chuuk's Opposition to the Motion to Set Aside Order of Dismissal, filed February 20, 2012. Welle's motion for relief from judgment is denied. The court's reasons follow.

I.

Welle asserts that the court dismissed his suit sua sponte and that that dismissal did not provide him "the chance to make certain facts known to the court." Mot. Set Aside Order of Dismissal at 4 n.1 (Feb. 8, 2012). He contends that his easement agreement with Chuuk was "obviously severable" and that his state court suit over breach of that agreement and the parties' subsequent settlement

[18 FSM R. 205]

did not touch the issue of electrical use, id. at 2, and that this court must, in balancing the policy of hearing a litigant's claims against the policy of finality, set the dismissal aside and restore the matter to the docket so that his claims can be resolved on the merits, id. at 3-4. To support his motion, Welle attaches a copy of the 1990 easement agreement between him and Chuuk.

Chuuk objects that Welle does not specify which of the six enumerated Civil Procedure Rule 60(b) grounds for relief Welle thinks entitles him to relief. Chuuk also objects that Welle did not explain why the six-month lapse between the August 10, 2011 summary judgment and this motion "constitutes, as required by Rule 60(b), a reasonable time within which to make the motion." Opp'n to Mot. to Set Aside Order of Dismissal at 3 (Feb. 20, 2012). Chuuk also asserts that Welle must show a good claim or defense before relief from judgment can be granted but that Welle has not done so.

II.

Welle's first error is his assertion that the court dismissed his claims sua sponte. The court did not decide its own motion. It granted summary judgment as the result of Chuuk's motion to dismiss, to which Welle did not file an opposition. This error is not fatal to Welle's motion.

Welle also neglects to show that his motion is timely. By moving to vacate a judgment, a movant automatically raises the issue of whether the motion is filed within a reasonable time because Rule 60(b) requires that all motions for relief from judgment be made in a reasonable time. FSM Dev. Bank v. Arthur, 16 FSM Intrm. 132, 138-39 (Pon. 2008). A movant must explain why the lapse between the judgment in, or the dismissal of, the case and his motion for relief from judgment constitutes a reasonable time within which to move for relief from judgment. Aake v. Mori, 16 FSM Intrm. 607, 608 (Chk. 2009). Even when a motion for relief from judgment under Rule 60(b)(1), (2), or (3) is made within the one-year time limit, the court still must consider whether it was made within a reasonable time. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 445-46 (App. 1994). And motions for relief from judgment for Rule 60(b) reasons (5) and (6) must be made within a reasonable time.1 FSM Dev. Bank v. Arthur, 15 FSM Intrm. 625, 633 (Pon. 2008), aff'd, 16 FSM Intrm. 653 (App. 2009).

A factor the court must consider when determining whether Rule 60(b) relief has been sought within a reasonable time is whether good reason has been presented for failure to act sooner. Arthur, 15 FSM Intrm. at 633. Courts have been unyielding in requiring that a party show good reason for the failure to take appropriate action sooner. Id. When a movant has not shown good reason for waiting to seek relief, the movant has not moved for relief from judgment "within a reasonable time" as required and the motion to vacate the judgment can be denied on this ground alone. Id. A court need not address a movant's claims in a motion to vacate judgment when the movant had to first surmount the hurdle of whether the motion for relief from judgment was filed within a reasonable time, and the movant could not. FSM Dev. Bank v. Arthur, 16 FSM Intrm. 132, 139 (Pon. 2008).

In Senda v. Mid-Pacific Construction Co., 6 FSM Intrm. 440, 445-46 (App. 1994), where the trial court had "recited that the motion [for relief from judgment] was timely since it was filed within one year," the appellate court reversed that trial court order granting relief from judgment and remanded it so that the trial court could also "consider whether the motion was made within a reasonable time," since it had not done so. Here, Welle has not shown why the six-month lapse between the summary

[18 FSM R. 206]

judgment and his motion for relief is a reasonable time. Indeed, Welle has not given any reason for the delay.2 He therefore has not shown that his motion was filed within a reasonable time. Welle's motion for relief must therefore be denied.

One last observation – if Welle considers the easement agreement attached to his motion to qualify as newly discovered evidence, a ground for relief under Civil Rule 60(b)(2), it does not. It is not evidence "which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." FSM Civ. R. 60(b)(2). It is evidence which should have been in Welle's possession all along (since he is a signatory) or evidence he would have, with due diligence, located before he filed suit, especially since this is Welle's second suit for the breach of the same easement agreement and he should have had it for the earlier suit.

III.

Accordingly, Welle's motion for relief from judgment is denied.