FSM SUPREME COURT TRIAL DIVISION
Cite as Acker v. FSM 24 FSM R. 001 (Pon. 2022)
IRENE SETIK, Administratrix of the Estate of Manny
Setik; ESTATE OF MANNY SETIK; MARIANNE B.
SETIK, Administratrix of the Estate of Raymond
Setik; and ESTATE OF RAYMOND SETIK,
Plaintiffs,
vs.
ANNA MENDIOLA, individually and in her capacity
as the President and Chief Executive Officer of FSM
Development Bank; JOHN SOHL, in his official
capacity as Chairman of the FSM Development
Bank; NORA SIGRAH, individually and in her
capacity as Legal Counsel for FSM Development
Bank; and FSM DEVELOPMENT BANK,
Defendants.
CIVIL ACTION NO. 2020-015
ORDER DISMISSING COMPLAINT FOR FAILURE TO PROSECUTE
Dennis L. Belcourt
Associate Justice
Decided: April 3, 2024
APPEARANCES:
For the Plaintiffs:
Yoslyn G. Sigrah, Esq.
P.O. Box 3018
Kolonia, Pohnpei FM 96941
For the Defendants:
Nora E. Sigrah, Esq.
P.O. Box M
Kolonia, Pohnpei FM 96941
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The purpose of Rule 6(d) certification is to avoid unnecessary motions. But compliance with Rule 6(d)'s 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 had not taken any follow-up action and because of the plaintiffs' prior overall inaction to previously defense motions. Setik v. Mendiola, 24 FSM R. 453, 455-56 & n.2 (Pon. 2024).
Dismissal under Rule 41(b) should be allowed only when there is a clear record of delay or contumacious conduct by the plaintiff or upon a serious showing of willful default. Setik v. Mendiola, 24 FSM R. 453, 456 (Pon. 2024).
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 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. Mendiola, 24 FSM R. 453, 456 (Pon. 2024).
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 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. Mendiola, 24 FSM R. 453, 457 (Pon. 2024).
Unless a motion for substitution has been made, an action shall be dismissed as to a deceased party 90 days after the death was suggested upon the record by service of a statement of the fact of the death, and, when the deceased's representative or successor is not the person filing a suggestion of death, "service" includes service on the representative or successor. Absent proof that a successor to the deceased has been served with the statement of fact of the death, the 90-day period has not started. Setik v. Mendiola, 24 FSM R. 453, 457 (Pon. 2024).
While, under Rule 41(b), a claim's dismissal for the plaintiff's failure to prosecute normally operates as an adjudication upon the merits, the rule nevertheless allows the court in its order for dismissal to specify otherwise. Setik v. Mendiola, 24 FSM R. 453, 458 (Pon. 2024).
Whether, under res judicata principles, a dismissal bars the dismissed plaintiff from bringing a future proceeding against the defendants, hinges on whether the dismissal is with prejudice – an adjudication on the merits. Setik v. Mendiola, 24 FSM R. 453, 458 (Pon. 2024).
When a plaintiff was left unrepresented in the litigation by the passing of a party, without anyone stepping forward to take her place, and when the litigation had not been prosecuted diligently over the ensuing years and is an obstacle to the court's regulation of its calendar, the court may dismiss that plaintiff for lack of prosecution but without prejudice. Setik v. Mendiola, 24 FSM R. 453, 458 (Pon. 2024).
The court may look to U.S. sources of law for guidance when it has not previously construed FSM procedural rules that are identical or similar to a U.S. counterpart. Setik v. Mendiola, 24 FSM R. 453, 458 (Pon. 2024).
Dismissal without prejudice under Rule 41(b) is the appropriate mechanism for addressing the circumstances presented by an estate, when the estate's administratrix passed and the opposing party filed a suggestion of her death and a subsequent motion to dismiss pursuant to Rule 25(a)(1), giving notice to her daughter, and when the daughter appeared before the court and was aware of the need to have a substitute successor for the estate , but the court has not been made aware of any action to do so. Setik v. Mendiola, 24 FSM R. 453, 458 (Pon. 2024).
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DENNIS L. BELCOURT, Associate Justice:
This matter is before this Court on a motion of Defendants Anna Mendiola and FSM Development Bank ("Defendants") for dismissal pursuant to FSM Rule of Civil Procedure 41(b), wherein they contend that Plaintiffs have failed to prosecute this matter in the more than three years since it was filed. For the reasons set forth below, I dismiss the matter as to the Estate of Manny Setik with prejudice and as to the Estate of Raymond Setik without prejudice.1
Defendants 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 Defendants' motion2 or a responsive brief to the Court's order to show cause. Nor have they done the following: (1) responded to the October 30, 2020, motion to dismiss by Defendants Anna Mendiola, John Sohl and FSMDB, (2) responded to the January 28, 2021 motion to dismiss this action against Nora Sigrah; (3) responded to the January 29, 2021 motion of Defendants for an order imposing Rule 11 sanctions; (4) responded to Defendants' motion for a preliminary injunction against plaintiffs and their attorney, dated February 26, 2021; (5) responded to Defendants' motion to dismiss, dated January 9, 2023, as to plaintiff Marianne Setik or the Estate of Raymond Setik, (or moved to have a successor to Marianne Setik as administratrix for the Estate of Raymond Setik after her passing on September 1, 2022, the occurrence of which was suggested on the record of the FSMDB on September 9, 2022); or (6) taken other action to prosecute this matter since filing and serving the complaint.
On February 6, 2024, this Court ordered Plaintiffs to show cause as to why this action should not be dismissed pursuant to Rule 41(b) by filing a brief no later than March 15, 2024. Plaintiffs failed to file a brief showing cause. Said order was served on Irene Setik, representative of the Estate of Manny Setik, on February 7, 2024. No service of the order could be done on a representative of the Estate of Raymond Setik, as the representative according to the filings in this matter with his Court, Marianne Setik, is deceased, and, according to this Court's knowledge, no successor representative has been appointed.
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.
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.
FSM case law states: "[D]ismissal under Rule 41(b) should be allowed only when there is a 'clear record of delay or contumacious conduct by the plaintiff' or 'upon a serious showing of willful default.'" Jackson v. Siba, 22 FSM R. 224, 231 (App. 2019) (citation omitted). 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) (citation omitted).
B. Dismissal with Prejudice As To the Estate of Manny Setik
Plaintiff Estate of Manny Setik, Irene Setik, Administrator, 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.
C. Dismissal as to Estate of Raymond Setik
On the other hand, the record is different with respect to Defendant Estate of Raymond Setik, which, after Marianne Setik's passing on September 1, 2022, was no longer represented by an administrator in this matter. Apparently, no representative has been appointed to replace her.3 With respect to the Estate of Raymond Setik, I do not find that the record before this Court supports a dismissal with prejudice on grounds spelled out in this court's controlling authority, i.e., a clear record of delay or contumacious conduct by, or a serious showing of willful default on the part of the estate.
1. FSMDB's Motion to Dismiss Pursuant to Rule 25(a)(1)
On January 9, 2023, FSMDB moved for a Rule 25(a)(1) dismissal of the Estate of Raymond Setik after no motion had been filed to substitute a successor administrator within ninety days of the suggestion of Marianne Setik's death. However, in the absence of service of a motion on a successor or representative, the ninety-day period has not commenced to run. Rule 25(a)(1) states in pertinent part:
Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.
Id. (emphasis added).
Where the representative or successor is not the person filing a suggestion of death, "service" includes service on the representative or successor. Damarlane v. FSM, 8 FSM R. 10, 12 (Pon. 1997) (Rule 25(a) clearly contemplates appointment of legal representatives, such as an executor or an administrator for substitution for a deceased party.) Absent proof that a successor to Marianne Setik has been served with the statement of fact of the death, the ninety-day period has not started. Rea v. Mutual of Omaha Ins. Co., 2018 WL 3126749, at *2 (W.D.N.Y. June 26, 2018) (service under Rule 25(a)(1) includes service on the successor or representative). It follows that on the record before this Court, the Estate of Raymond Setik is not subject to dismissal pursuant to Rule 25(a)(1).
2. Rule 41(b) Dismissal Without Prejudice of the Estate of Raymond Setik
The high threshold for dismissal for failure to prosecute under Rule 41(b) has been applied by the FSM Supreme Court to dismissal with prejudice. McGillivray v. Bank of the FSM, 7 FSM R. 19, 23 (Pon. 1995) (dismissal with prejudice is a drastic sanction to be applied only in extreme situations); Kosrae Island Credit Union v. Palik, 10 FSM R. 134, 140 (App 2001) (court recognizes the "serious nature of the sanction of dismissal with prejudice").
While, under Rule 41(b), a "[d]ismissal of a claim for failure of the plaintiff to prosecute normally operates . . . as an adjudication upon the merits," Ittu v. Charley, 3 FSM R. 188, 191 (Kos. S. Ct. Tr. 1987), Rule 41(b) nevertheless allows that "the court in its order for dismissal" may specify otherwise, i.e., may state that the dismissal is not an adjudication on the merits. Whether the dismissal is, under res judicata principles, a bar to the Estate of Raymond Setik bringing a future proceeding against the defendants, hinges on whether the dismissal is with prejudice/an adjudication on the merits. Id.
Turning to the circumstances of the Estate of Raymond Setik, which as a plaintiff was left unrepresented in the current litigation by the passing of Marianne Setik, without anyone stepping forward to take her place, the litigation has not been prosecuted diligently over the ensuing years and is an obstacle to this Court's regulation of its calendar.
Under similar sets of facts, United States courts in Bradford v. Woo, 2023 WL 2566099 (E.D. Tex. 2023) and Escobar v. Mahopac Food Corp., 2023 WL 8850929 (E.D.N.Y. 2023), have invoked a similar version of Rule 41(b) as a basis for dismissal of decedents' claims without prejudice. This Court may look to U.S. sources of law for guidance when we have not previously construed FSM procedural rules that are identical or similar to a U.S. counterpart. In re Sanction of Sigrah, 19 FSM R. 396, 398 n.1 (App. 2014).
This Court finds that dismissal without prejudice under Rule 41(b) is the appropriate mechanism for addressing the circumstances presented with respect to the Estate of Raymond Setik. After administratrix Marianne Setik's passing in September 2022, FSMDB filed a suggestion of her death and a subsequent (January 9, 2023) motion to dismiss pursuant to Rule 25(a)(1), giving notice to her daughter, Irene Setik, Administratrix of Plaintiff Estate of Manny Setik. It is notable that Irene Setik has appeared as "Personal Representative of the Heirs of Raymond Setik" in Civil Action 2021-017 and previously in a civil action filed in Pohnpei Supreme Court (which was removed to this Court). See Setik v. Perman, 21 FSM R. 31 (Pon. 2016).4 When Ms. Irene Setik appeared before this Court on November 15, 2023, she was aware of the need to have a substitute successor for the Estate of Raymond Setik. This Court has not been made aware of any action to do so.
I therefore dismiss this action as to the Estate of Raymond Setik without prejudice.
IT IS ORDERED that the complaint is dismissed as to the Estate of Manny Setik, with prejudice, and as to the Estate of Raymond Setik without prejudice.
_______________________________Footnotes:
1 Defendants have also moved to dismiss as to the Estate of Raymond Setik, based on the passing of Maryanne Setik, pursuant to Rule 25(a)(1). That motion is denied as inapplicable, as discussed below.
2 Defendants seek 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.
3 At the November 15, 2023, Irene stated that she would be representing the Estate of Raymond Setik, but this Court has not been provided with any proof of an appointment.
4See page R.8 in the Record on Appeal, Appeal Case No. P1-2017.
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