[24 FSM R. 445]

CIVIL ACTION NO. 2021-024

Decided: April 3, 2024

APPEARANCES:

For the Plaintiff:           Yoslyn G. Sigrah, Esq.
                                    P.O. Box 3018
                                    Kolonia, Pohnpei FM 96941

For the Defendant:      Nora E. Sigrah, Esq.
                                    P.O. Box M
                                    Kolonia, Pohnpei FM 96941

HEADNOTES

Civil Procedure – Motions – Rule 6(d) Certification

The purpose of Rule 6(d) certification is to avoid unnecessary motions, but compliance with its meet-and-confer requirement is excused as futile when, although a motion to dismiss for failure to prosecute would be unnecessary if the plaintiffs could be spurred into action by a phone call or an email, the plaintiff appeared at a status conference and was told by the court of the need to respond to dispositive motions within sixty days but did not take any follow-up action and because of the plaintiffs' overall inaction to previous defense motions. Setik v. Lee, 24 FSM R. 445, 446 & n.1 (Pon. 2024).

Civil Procedure – Dismissal – Lack of Prosecution

Rule 41(b) contemplates a reasonable diligence standard since a plaintiff seeking affirmative relief has the burden of pursuing that relief with reasonable diligence. The plaintiff bears the initial burden of showing some excuse for any delay in prosecution, and, if the excuse is anything but frivolous, the burden shifts to the defendant to show prejudice from the delay. If prejudice is demonstrated, the burden shifts back to the plaintiff to show that the force of its excuse outweighs any prejudice to the defendant. The grant or denial of an involuntary dismissal ultimately rests in the court's sound discretion. Nevertheless, the record must still support a finding of delay attributable to plaintiff's conduct. Setik v. Lee, 24 FSM R. 445, 446 (Pon. 2024).

Civil Procedure – Dismissal – Lack of Prosecution

There is a clear record of delay and a serious showing of willful default that warrants dismissal with prejudice for lack of prosecution when the plaintiffs have not asserted any basis whatsoever for the delays in responding to the numerous motions; when they have not taken any other measures over the several years to advance the matter; when those failures to respond date back to the incipience of the matter; and when they have failed to oppose the most recent Rule 41(b) motion to dismiss or file anything arguably responsive to the court's order to show cause. Setik v. Lee, 24 FSM R. 445, 446 (Pon. 2024).

COURT'S OPINION

DENNIS L. BELCOURT, Associate Justice:

This matter is before this Court on a motion of Defendant Nora Sigrah ("Defendant" or "Defendant Sigrah") for dismissal pursuant to FSM Rule of Civil Procedure 41(b), wherein she contends that Plaintiffs have failed to prosecute this matter in the more than two years since it was filed. For the reasons set forth below, I dismiss the complaint with prejudice.

I. PROCEDURAL BACKGROUND

Defendant filed the motion and served it by mail on Irene Setik on November 29, 2023, followed by an order on February 6, 2024 of this Court to show cause as to why this matter should not be dismissed, served on Irene Setik on February 7, 2024. According to a review of the Court file, Plaintiffs have not filed an opposition to Defendant's motion¹ or a responsive brief to the Court's order to show cause.

According to a review of the Court file, Plaintiffs have not filed an opposition thereto. Nor have they done the following: (1) responded to Defendant Sigrah's October 5, 2021 motion to dismiss; (2) responded to Defendant Sigrah's October 27, 2021 motion for an order for Rule 11 sanctions; (3) responded to Defendant Sigrah's January 21, 2022 motion to dismiss this action against all other defendants; or (4) taken any other action to prosecute this matter since filing the complaint.

After the order to show cause was filed, Yoslyn G. Sigrah filed, on March 15, 2024, a notice to "re-appear as counsel of record, for Irene Setik, as Administrator of the Estate of Manny Setik, and all other named plaintiffs in this case, until the plaintiffs can secure and retain counsel." Nothing in that filing expressed any intent to comply with the Court's show cause order or to respond to the numerous pending motions.

II. DISCUSSION

A. Motions to Dismiss Under Rule 41(b)

Rule 41(b) reads in pertinent part as follows:

For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. . . . Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

Rule 41(b) contemplates a reasonable diligence standard. A plaintiff seeking affirmative relief has the burden of pursuing that relief with reasonable diligence. Initially, the plaintiff bears the burden of showing some excuse for any delay in prosecution. If the excuse is anything but frivolous, the burden shifts to the defendant to show prejudice from the delay. If prejudice is demonstrated, the burden shifts back to the plaintiff to show that the force of its excuse outweighs any prejudice to the defendant. In making this analysis, granting or denial of involuntary dismissal ultimately rests in the court's sound discretion. Nevertheless, the record must still support a finding of delay attributable to plaintiff's conduct. Jackson v. Siba, 22 FSM R. 224, 231 (App. 2019).

B. Dismissal with Prejudice

Plaintiff Estate of Manny Setik, Irene Setik, Administratrix, has not asserted any basis whatsoever for the delays in responding to the numerous motions or in taking any other measures, over the several years, to advance this matter. Based on those failures to respond, dating back to the incipience of this matter, and Plaintiffs' failure to oppose Plaintiffs' most recent motion to dismiss under Rule 41(b) (filed November 29, 2023) or file anything arguably responsive to this Court's February 6, 2024 order to show cause, this Court finds a clear record of delay and a serious showing of willful default that warrants dismissal with prejudice of this matter as to the Estate of Manny Setik, Irene Setik, Administratrix.

III. CONCLUSION

IT IS ORDERED that the complaint is dismissed with prejudice.

Footnotes:

¹ Defendant seeks exemption for failing to have complied with the certification requirement of FSM Rule of Civil Procedure 6(d), which requires that they attempt to contact the opposing party before filing the motion, on the contention that such would be futile. Berman v. Pohnpei, 18 FSM R. 67, 71 (Pon 2011). The purpose of the certification is to avoid unnecessary motions. A motion to dismiss for failure to prosecute is unnecessary if the plaintiffs could be spurred into action by a phone call or an email. This Court held a status conference on November 15, 2023, at which Irene Setik alone appeared and was told by this Court of the need to respond to dispositive motions within sixty days. Plaintiffs have not taken any follow-up action. Given the overall inaction of the Plaintiffs, including the failure on the part of Plaintiffs to take any actions since the status conference, I find that compliance with the meet and confer requirement in Rule 6(d) is excused as futile.