FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Amayo v. M.J. Co.
10 FSM Intrm. 371 (Pon. 2001)

ALFREDO AMAYO, and ELSA AMAYO, individually,
and as next friends of ALFIE AMAYO, APRIL
AMAYO, and JILLEEN AMAYO,
Plaintiffs,

vs.

MJ COMPANY, RON PANGELINAN and IOANIS
PANUELO dba IP ENTERPRISES,
Defendants.

CIVIL ACTION NO. 1999-091

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: September 19, 2001

APPEARANCES:

For the Plaintiffs:
Daniel J. Berman, Esq.
P.O. Box 1491
Kolonia, Pohnpei FM 96941

For the Defendant:
Fredrick L. Ramp, Esq.
Law Office of Fredrick L. Ramp
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTES

Torts - Damages; Torts - Negligence
It is well established that medical expenses are properly a component of negligence damages and may be recovered from the tortfeasor. Amayo v. MJ Co., 10 FSM Intrm. 371, 376 (Pon. 2001).

Civil Procedure - Pleadings
When non-pleading issues are tried by the parties' consent, those issues shall be treated as raised in the pleadings. Amayo v. MJ Co., 10 FSM Intrm. 371, 377 (Pon. 2001).

Civil Procedure - New Trial
A motion for a new trial will be denied when medical expenses were properly awarded as an element of damages against a negligent tortfeasor and when no legal error resulted from the court's reliance on another case because the court's finding that the plaintiff was working for the movant, and being supervised by his foreman when the accident occurred was similar to facts of the other case. Amayo v. MJ Co., 10 FSM Intrm. 371, 377 (Pon. 2001).

Judgments - Relief from Judgment
With the exception of void judgments under Rule 60(b)(4), the grant or denial of Rule 60 relief rests with the trial court's sound discretion. The discretion is not an arbitrary one to be capriciously exercised, but a sound legal discretion guided by accepted legal principles. Amayo v. MJ Co., 10 FSM Intrm. 371, 377 (Pon. 2001).

Attorney, Trial Counselor and Client; Civil Procedure - Notice
An attorney, who stated that he was appearing temporarily for a party and only for the purposes of that one brief, in chambers, off-the-record status conference and who did not file a notice of appearance either then or subsequently, did not appear of record. And when that attorney did nothing officially of record in the case until he came to court with the party for the trial's afternoon session, he was not the party's counsel of record as of the date the notice of trial was served, and it is immaterial whether he received the notice of trial. Amayo v. MJ Co., 10 FSM Intrm. 371, 378-79 (Pon. 2001).

Civil Procedure - Notice
No hard and fast rule for determining what notice of trial is adequate can be made, as any such rule would be arbitrary. While the law requires that adequate notice be given, it does not require that any particular type or kind of notice be given, so that a written notice is not required; a party's actual knowledge of the trial date is sufficient. Amayo v. MJ Co., 10 FSM Intrm. 371, 379 (Pon. 2001).

Civil Procedure - Notice; Civil Procedure - Service
Personal service on a party of a trial subpoena that gave clear, unambiguous notice to that party of the time and place of trial more than seven weeks before trial, constituted adequate timely notice of trial. Amayo v. MJ Co., 10 FSM Intrm. 371, 379 (Pon. 2001).

Civil Procedure - Service
When serving a subpoena, reasonable attempts shall be made to explain the meaning of the subpoena and what the person is required to do. Amayo v. MJ Co., 10 FSM Intrm. 371, 380 (Pon. 2001).

Civil Procedure - Notice; Civil Procedure - Service
There was no defect in service when a person who had been subpoenaed for trial as a witness, was also a party to the litigation, who was representing himself. As such, he is to be credited with knowing that "trial" means exactly that, a final determination of the merits of the case. Amayo v. MJ Co., 10 FSM Intrm. 371, 380 (Pon. 2001).

Civil Procedure - Service; Judgments - Relief from Judgment
Serving the defendant himself and failure to serve defendant's counsel with documents was not improper conduct entitling the defendant to Rule 60(b)(3) relief from judgment when that defendant had no counsel of record and was appearing pro se. Amayo v. MJ Co., 10 FSM Intrm. 371, 380 (Pon. 2001).

Civil Procedure - Service
FSM Rule 45 does not require notice of a trial subpoena to be served on the opposing party. Amayo v. MJ Co., 10 FSM Intrm. 371, 380 (Pon. 2001).

Civil Procedure - Service; Judgments - Relief from Judgment
Service of a motion upon an opposing party is expressly required under Civil Procedure Rule 6(d). Such is not the case with a trial subpoena. Therefore, in the absence of any pre-trial order requiring it, failure to serve trial subpoenas on an opposing party does not constitute improper conduct justifying relief from judgment under Rule 60(b)(3). Amayo v. MJ Co., 10 FSM Intrm. 371, 381 (Pon. 2001).

Attorney, Trial Counselor and Client; Judgments - Relief from Judgment
Attorney negligence, even gross negligence, if demonstrated, is not a separate basis for Rule 60(b)(6) relief from judgment. Under established FSM law, attorney neglect as a basis for Rule 60(b) relief falls within subsection Rule 60(b)(1), "mistake, inadvertence, surprise, or excusable neglect." Amayo v. MJ Co., 10 FSM Intrm. 371, 381 (Pon. 2001).

Attorney, Trial Counselor and Client; Judgments - Relief from Judgment
Generally, attorney negligence is not a basis for Rule 60(b)(1) relief from judgment. Parties who freely choose their attorneys should not be allowed to avoid the ramification of the acts or omissions of their chosen counsel. A party in a civil case whose attorney's conduct has fallen below a reasonable standard has other remedies. To grant Rule 60(b)(1) relief in such circumstances would penalize the nonmoving party for the negligent conduct of the moving party's counsel. Amayo v. MJ Co., 10 FSM Intrm. 371, 381 (Pon. 2001).

Attorney, Trial Counselor and Client; Judgments - Relief from Judgment
The exception to the rule that attorney neglect does not state a basis for relief under Rule 60(b)(1) is where the neglect itself is excusable. Clients must be held accountable for their attorneys' acts or omissions. Amayo v. MJ Co., 10 FSM Intrm. 371, 381-82 (Pon. 2001).

Attorney, Trial Counselor and Client; Judgments - Relief from Judgment
Allegations of an attorney's gross negligence do not entitle his client to relief from judgment under the excusable neglect provision of Rule 60(b)(1). Amayo v. MJ Co., 10 FSM Intrm. 371, 382 (Pon. 2001).

Attorney, Trial Counselor and Client; Judgments - Relief from Judgment
An analysis of excusable neglect under Rule 60(b)(1) by its terms brings into play the conduct of the client, as well counsel because the proper focus is upon whether the neglect of the clients and their counsel was excusable. Amayo v. MJ Co., 10 FSM Intrm. 371, 382 (Pon. 2001).

Judgments - Relief from Judgment
A pro se party's lack of full involvement in the pretrial process for whatever reasons when he had the opportunity to participate - and indeed was required to do so but did not when it came to responding to plaintiffs' discovery - does not constitute excusable neglect under Civil Procedure Rule 60(b) when he has not demonstrated that his own neglect of the litigation, either in his role of client or attorney, was excusable. Amayo v. MJ Co., 10 FSM Intrm. 371, 382 (Pon. 2001).

Judgments - Relief from Judgment
Because procedural law cannot cast a sympathetic eye on the unprepared or it will soon fragment into a kaleidoscope of shifting rules, relief under Rule 60 is not appropriate when a party has demonstrated a pattern of delay and neglect. Amayo v. MJ Co., 10 FSM Intrm. 371, 382 n.5 (Pon. 2001).

Evidence
Generally, failure to object or to seek a continuance results in a waiver of the objection. Amayo v. MJ Co., 10 FSM Intrm. 371, 383 (Pon. 2001).

Civil Procedure - New Trial; Evidence; Judgments - Relief from Judgment
Rule 59 provides a means for relief in cases in which a party has been unfairly made the victim of surprise, but relief will be denied if the party failed to seek a continuance. Surprise, along with excusable neglect, is also addressed by Rule 60(b)(1). Thus, if a party is surprised at trial he is amply protected by Rules 59(a) and 60(b). Amayo v. MJ Co., 10 FSM Intrm. 371, 383 (Pon. 2001).

Judgments - Relief from Judgment
For the limited purpose of Rule 60(b)(1) relief from judgment the court will not allow a party, having elected at relevant times to be his own counsel of record, to ascribe his own on-the-record conduct of the litigation after the fact to off-the-record counsel. Amayo v. MJ Co., 10 FSM Intrm. 371, 383 (Pon. 2001).

Judgments - Relief from Judgment
Subsection (6) is the grand reservoir of equitable power to do justice in a particular case, subject to the requirement that the provision is applicable only when the basis for relief is different from those enumerated in subsections (1) through (5) of Rule 60(b), and to the requirement that extraordinary circumstances exist for justifying relief. Extraordinary circumstances usually means that the movant himself was not at fault for his predicament. Conversely, the usual implication of fault on the movant's part is that there are no extraordinary circumstances. Amayo v. MJ Co., 10 FSM Intrm. 371, 383 (Pon. 2001).

Judgments - Relief from Judgment
Relief from judgment under Rule 60(b)(6) will be denied when there was sufficient action, and failure to act, on the movant's part to preclude the argument that there was no fault on his part and when there is also no distinct claim for relief that falls outside those specifically enumerated in subsections (b)(1) through (b)(5) of Rule 60. Amayo v. MJ Co., 10 FSM Intrm. 371, 383 (Pon. 2001).

Torts - Negligence
In determining whether conduct is negligent, the customs of the community, or of others under like circumstances, are factors to be taken into account, but are not controlling where a reasonable man would not follow them. Amayo v. MJ Co., 10 FSM Intrm. 371, 384 (Pon. 2001).

Torts - Negligence
It is not a defense to negligence to say that others engaged in the same conduct would have operated in the same way, without taking safety precautions, and were, or are on an ongoing basis, negligent. Amayo v. MJ Co., 10 FSM Intrm. 371, 384 (Pon. 2001).

Custom and Tradition - Pohnpei; Torts - Negligence
The construction of a multistory building using imported technology is not imbued with Pohnpeian custom and tradition so as to lend itself to an analysis in those terms. Amayo v. MJ Co., 10 FSM Intrm. 371, 384 (Pon. 2001).

Civil Procedure - Default and Default Judgments
Whether to grant a motion for entry of default judgment is discretionary with the court, and not a matter of right. In making this determination, the court may consider a variety of factors including the merits of the plaintiff's substantive claim. Amayo v. MJ Co., 10 FSM Intrm. 371, 385 (Pon. 2001).

Civil Procedure - Default and Default Judgments
If the court grants a motion for default judgment at the commencement of trial, then, when the plaintiffs are seeking general damages and not a sum certain under Rule 55(b)(1), the next step would be for plaintiffs to prove up their damages under Rule 55(b)(2). Amayo v. MJ Co., 10 FSM Intrm. 371, 385 (Pon. 2001).

Civil Procedure - Default and Default Judgments
In a default situation, the court may conduct such hearings as it deems necessary and proper in order to determine damages. But when the nature of plaintiffs' claims is substantial, it may be appropriate for the court to consider the merits of those claims as part of that hearing, which can be accomplished when the plaintiffs go forward with their proof on both liability and damages. Amayo v. MJ Co., 10 FSM Intrm. 371, 385 (Pon. 2001).

Civil Procedure - Discovery; Evidence
A party may not derive benefit post trial from tendering evidence that which he was under a discovery obligation to produce pre-trial, and did not. Amayo v. MJ Co., 10 FSM Intrm. 371, 385 (Pon. 2001).

Costs
Costs are not synonymous with a party's expenses. Only certain types of expenses are cognizable as costs. Amayo v. MJ Co., 10 FSM Intrm. 371, 385 (Pon. 2001).

Civil Procedure - Service; Costs
When, service was done by servers employed at various times by plaintiffs' counsel, but who were duly appointed process servers and charged separate fees for the service, they were acting as private process servers. Fees charged by private process servers may be recoverable as costs. Amayo v. MJ Co., 10 FSM Intrm. 371, 385 (Pon. 2001).

Civil Procedure - Depositions; Costs
Deposition costs will be allowed when the transcription was done and the deposition was admitted into evidence at trial even though the documentation for the deposition charge was a check made payable to an attorney in the Philippines, and noted as such on the check stub. Amayo v. MJ Co., 10 FSM Intrm. 371, 385-86 (Pon. 2001).

Costs
Counsel's travel expenses to and from Pohnpei for litigation on Pohnpei may not be awarded as costs when counsel maintains a Pohnpei office and is thus local counsel. Amayo v. MJ Co., 10 FSM Intrm. 371, 386 (Pon. 2001).

Attachment and Execution
The attempt to execute a judgment on the judgment debtor's bank accounts constitutes a garnishment, since it is a debt owed by a third party to the judgment debtor. This remedy is recognized in the FSM, and should go forward as a separate proceeding. The writ of execution will issue upon the court's receipt of a simplified form of writ that conforms with 6 F.S.M.C. 1407. Amayo v. MJ Co., 10 FSM Intrm. 371, 386 (Pon. 2001).

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COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

The opinion and judgment in this matter were entered on June 14, 2001. Amayo v. MJ Co., 10 FSM Intrm. 244 (Pon. 2001).

On June 18, 2001, plaintiffs filed a motion for writ of execution. On June 26, 2001, defendant Ioanis Panuelo ("Panuelo") responded, and also moved to stay the enforcement of the judgment while motions were pending.

On June 25, 2001, Panuelo filed a motion for new trial under Rule 59 of the FSM Rules of Civil Procedure, and a motion for relief from judgment under Rule 60 of the FSM Rules of Civil Procedure. On July 11, 2001, plaintiffs filed their response; on July 13, 2001, they supplemented their response. On July 20, 2001, Panuelo filed a reply. On July 25, 2001, plaintiffs filed a second supplement.

On July 16, 2001, plaintiffs filed their motion to tax costs; on August 1, 2001, Panuelo filed his response.

I. Disposition

The motions for new trial and for relief from judgment are denied.

The motion for writ of execution is granted along the lines set out at part VII. infra.

The motion for stay pending the ruling on the motions under Rules 59 and 60 is denied as moot.

The motion for taxing of costs is granted to the extent discussed infra at part V.

Reasons follow. The court first considers the motions for new trial and relief from judgment, as these bear on the other motions.

II. Motion for New Trial

Panuelo moves for relief from judgment under Rule 59 of the FSM Rules of Civil Procedure, which provides in pertinent part that "[a] new trial may be granted to all or any of the parties and on all or part of the issues for manifest error of law or fact." Panuelo assigns three factual and five legal errors which he asserts justify relief under Rule 60 of the FSM Rules of Civil Procedure. Of these eight errors, six are the consequence of the alleged lack of notice of trial, which is addressed by Panuelo's Rule 60 motion for relief from judgment discussed infra at part III.A. The court deems these six assignments of error subsumed within the Rule 60 motion, and does not treat them as independent bases for relief under Rule 59.

Two of Panuelo's assigned bases of legal error stand under Rule 59. These are assignments of error designated B. and D.

A. Assignment of legal error B.

Error B. is that the court erred by not assessing damages against MJC for the medical expenses of plaintiff Alfredo Amayo ("Amayo"), because Amayo's contract with MJC required MJC to pay for medical care resulting from on the job accidents. Amayo's medical expenses were assessed against Panuelo as part of his damages flowing from the accident. It is well established that medical expenses are properly a component of negligence damages, and may be recovered from the tortfeasor. 1 Jacob A. Stein, Stein on Personal Injury Damages § 5:1, at 219 (1991).

It may be that the court need go no further on this issue than the legal proverb that pleading without proof is as defective as proof without pleading, although this maxim likely does not take into account the modern amendment provisions of Rule 15 of the FSM Rules of Civil Procedure. That rule provides in pertinent part that when non-pleading issues are tried by the consent of the parties, those issues shall be treated as raised in the pleadings. In short, Amayo did not plead a contract claim in either the complaint or amended complaint against MJC for medical expenses, nor did Panuelo plead a claim against MJC for Amayo's medical expenses in the event Amayo's medical expenses were assessed against Panuelo. Even then, had these claims been raised and explored at trial, a question for determination would have been whether the contract covered medical expenses incurred only while working on MJC projects only, or included other employers such as Panuelo as well.

Medical expenses are an element of Amayo's damages. They were properly awarded against Panuelo. No error of law resulted because damages for medical expenses were not assessed against MJC.

B. Assignment of legal error D.

Error D. is Panuelo's assertion that the court wrongly relied on Semens v. Continental Air Lines, 2 FSM Intrm. 131 (Pon. 1985) in reaching its legal conclusions in this case. Panuelo asserts that in Semens, the employees supplied to Continental were routinely supervised by Continental, and that in this case, the plumbing contractor, MJC, supervised his own workers. This contention is at odds with the court's finding that Amayo was working for Panuelo, and being supervised by Panuelo's foreman, when the accident occurred. Amayo v. MJ Co., 10 FSM Intrm. 244, 248 (Pon. 2001). No legal error resulted from the court's reliance on Semens.

Accordingly, the motion for new trial under Rule 59 of the FSM Rules of Civil Procedure is denied.

III. The Rule 60 motion

With the exception of void judgments under Rule 60(b)(4), the grant or denial of relief under Rule 60 of the FSM Rules of Civil Procedure rests with the sound discretion of the trial court. 12 James Wm. Miller, Moore's Federal Practice § 60.22[1] (3d ed. 1999). "The discretion is not an arbitrary one to be capriciously exercised, but a sound legal discretion guided by accepted legal principles." Id. § 60.22[2] (citing Assman v. Fleming, 159 F.2d 332, 336 (8th Cir. 1947)). Panuelo seeks relief from the judgment entered in this case under subsections (1), (3), and (6) of Rule 60. Respectively and in pertinent part, those subsections provide that a court may relieve an affected party from judgment on the basis of "mistake, inadvertence, surprise, or excusable neglect"; "misconduct of an adverse party"; or "any other reason justifying relief from the operation of the judgment."

A. The Rule 60(b)(1) claim

Panuelo alleges that he suffered surprise because neither he nor Mr. Joe Phillip ("Phillip"), an attorney whom Panuelo states he was consulting at various times throughout this action, had notice of the trial. Panuelo did not appear for the commencement of the trial on the morning of February 5, 2001, but did appear with Phillip in the afternoon when trial resumed after the lunch recess. Panuelo claims that he appeared then because he had received copies of four trial subpoenas and plaintiffs' pre-trial statement. The trial subpoenas indicated that the subpoenaed witnesses were to appear during the afternoon of February 5, whereas the trial actually started in the morning.

1. Notice to Phillip

The complaint in this case was filed on December 20, 1999. Panuelo filed a pro se answer, and proceeded to represent himself. On June 1, 2000, the court held a brief, in chambers, off-the-record status conference. Phillip attended the conference. However, the record of the case up to that time showed no appearance by Phillip, and initially the court was in the dark as to why he was there. The court's distinct recollection, consistent with plaintiffs' counsel's, is that when asked by the court why he was appearing at the hearing, Phillip stated that he was appearing temporarily for Panuelo, and only for the purposes of that hearing. Phillip did not file a notice of appearance either then or subsequently. Aff. of Joe Phillip ¶ 2 (June 23, 2001), attached as exhibit "B" to Motion for New Trial Pursuant to Rule 59 of the Rule of Civil Procedure; Motion for Relief From Judgment Pursuant to Rule 60(b) (June 25, 2001). Regardless of the capacity in which Phillip appeared at the hearing, his appearance was not of record because it took place at an off-the-record proceeding.

Apparently the court clerk unilaterally - let it be plain that this was done in the absence of any direction from the court - treated Phillip's physical presence at the status conference as a general appearance, because the subsequent order entered on September 15, 2001, and the notice of trial, entered on October 26, 2000, were sent on October 27, 2000, to Phillip, and not Panuelo. But Phillip states that he did not receive the notice of trial. Id. ¶ 3. He further states that he attended the status conference, but does not indicate whether he appeared specially or generally. Id. ¶ 2. The first time Phillip did anything officially of record in this case on Panuelo's behalf was when he came to court with Panuelo for the afternoon session of the trial on February 5, 2001. Upon reviewing the file immediately prior to trial, the court had concluded that Panuelo was still representing himself, since Phillip had filed no appearance between the time of the off-the-record status conference and the trial. Phillip appeared at the afternoon session of the trial, and the court asked him if he were representing someone there that afternoon. Phillip responded that he was representing Panuelo, and the trial continued on that basis. Thus in the court's own mind, Panuelo was at all times pro se except 1) for the limited purpose of the status conference; 2) and as of the afternoon session of the trial when Phillip appeared with Panuelo. The latter period of representation by Phillip continued until Panuelo's present counsel filed his substitution of counsel on June 25, 2001.

But the issue of Panuelo's representation ultimately rests on neither the court's nor plaintiffs' counsel's recollection of what transpired at the off-the-record status conference; rather, the relevant concern is the conduct of Panuelo himself. After the status conference, and before the trial, plaintiffs served their supplemental motion to compel on Panuelo on July 4, 2000. The motion requested that Panuelo either provide certain documents, or face sanctions in the event discovery was not forthcoming. The motion's significance is that it required a response, not only from any attorney of record if he had one, but from Panuelo himself, since the motion required document production - it is disingenuous to suppose that a party's production of documents can be accomplished without some level of participation by the party required to produce them, even if the party is represented by counsel. If Panuelo had counsel of record, a reasoned response would have been for him to communicate with that attorney in order to insure that the attorney filed the appropriate response on his behalf. Evidently he did not do this. The record is clear that no steps were taken to respond to the supplementary motion to compel.

By failing to object to service upon him of the motion to compel; by failing to communicate with his attorney of record if he had one to coordinate a response to the motion; and in the absence of any notice of appearance filed on his behalf by Phillip, Panuelo waived any contention that Phillip had become his counsel of record by Phillip's appearance on his behalf at the off-the-record status conference. Panuelo had established the status quo of his pro se status when he made this election at the commencement of the case. The onus was on Panuelo himself to resolve this question since he and he alone could make the important threshold decision whether to engage counsel of record. If he had elected to engage counsel of record, then basic communication with his counsel after he had been served with the motion to compel would have resolved this question for both the court and the plaintiffs. Having failed to do this, Panuelo's pro se status continued after the status conference until Phillip appeared in court and on the record for him on the afternoon of February 5, 2001.

Accordingly, Phillip was not Panuelo's counsel of record as of the date the notice of trial was served. It is immaterial whether or not Phillip received the notice of trial.

2. Notice to Panuelo himself

The court now turns to the question of whether or not Panuelo himself had adequate notice of the trial.

No hard and fast rule for determining what notice of trial is adequate can be made, as any such rule would be arbitrary. While the law requires that adequate notice be given, it does not require that any particular type or kind of notice be given, so that a written notice is not required; a party's actual knowledge of the trial date is sufficient.

75 Am. Jur. 2d Trial § 69 (rev. ed. 1991) (emphasis added).

The trial in this matter was scheduled for February 5, 2001. Per the certificate of service filed on December 15, 2001, Mr. Michael Nakasone personally served a trial subpoena on Panuelo on December 14, 2001. The subpoena bears the case caption, and is entitled "TRIAL SUBPOENA" in bold type. It reads that "YOU ARE HEREBY COMMANDED to appear to give testimony in the above-entitled Trial to be held at the FSM Supreme Court, in Palikir, State of Pohnpei on Monday, February 5, 2001 at 9:00 a.m., then and there to testify as a witness in this action." The subpoena is then signed by the clerk of court. It gave clear, unambiguous notice to Panuelo of the time and place of trial. As such, it constituted adequate notice. It was also timely, coming as it did more than seven weeks before trial.

Panuelo does not deny that he was served with the trial subpoena. Rather in his affidavit he claims that he "never saw it [the subpoena] and it isn't in my file or in the file of my attorney Mr. Phillip." Aff. of Ioanis Panuelo, Ex. "A" to Motion for New Trial Pursuant to Rule 59 of the Rules of Civil Procedure; Motion for Relief From Judgment Pursuant to Rule 60(b) (June 25, 2001). Thus Panuelo's contention is not inconsistent with the affidavit of service filed contemporaneously with the certificate of service of the subpoena, as well as the subsequent affidavits of the process server filed on July 11, 2001, and August 9, 2001. The two affidavits describe in some detail the circumstances of the service. The court concludes that Panuelo was served with the subpoena as set out in the certificate of service.

Panuelo also contends that even if he was served with the subpoena, that service was defective because the server did not explain to him the meaning of the document. FSM Rule of Civil Procedure 45(c) provides that "[r]easonable attempts shall be made to explain the meaning of the subpoena and what the person is required to do." In his August 9, 2001, affidavit, Nakasone states that he offered an explanation. Be that as it may, Rule 45 of the FSM Rules of Civil Procedure is directed to compelling the attendance of witnesses at trial. Here, however, Panuelo had not only been subpoenaed as a witness, but was also a party to the litigation. In addition, he was representing himself. As such, he is to be credited with knowing that "trial" means exactly that, a final determination of the merits of the case. In no sense was he a stranger to the litigation in the way a witness might be. To the extent that Rule 45 applies to party witnesses, the subpoena requiring Panuelo's attendance at the February trial in and of itself constituted a "reasonable explanation" under Rule 45. On these facts, and under a rule that by its terms is directed to witnesses as opposed to parties, no further explanation was required. There was no defect in service.

B. The Rule 60(b)(3) claim

Panuelo also urges under subsection (b)(3) of Rule 60 that he is entitled to relief from judgment because of the improper conduct of plaintiffs. The alleged improper conduct is that after the status conference at which Phillip appeared on Panuelo's behalf, plaintiffs continued to serve Panuelo and not Phillip with subsequent papers in the case. He also contends that he was not served with copies of trial subpoenas for certain witnesses, and that this was likewise improper conduct entitling him to Rule 60(b)(3) relief.

1. Alleged improper conduct of plaintiffs

The court has found that Panuelo had no counsel of record after the status conference, and that his pro se status continued thereafter. Consequently, it was appropriate for plaintiffs to serve Panuelo, and not Phillip, with papers post status conference. This was not improper conduct.

2. Failure to serve trial subpoenas

As to plaintiffs' failure to serve certain trial subpoenas duces tecum, there is no requirement in either Rule 5 or Rule 45 of the FSM Rules of Civil Procedure that such subpoenas be served on parties. Plaintiffs point out that in 1991, Rule 45 of the United States Rules of Civil Procedure, upon which the FSM Rule is based, was amended to add the language, "[p]rior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b)." Before this amendment, there was no requirement for a trial subpoena to be served on an opposing party under the U.S. rule; after the amendment, such service would have been required. Plaintiffs urge that since the FSM Rules of Civil Procedure are based on the pre-1991 U.S. Federal Rules of Civil Procedure, there is no requirement under our rules that a trial subpoena be served on an opposing party.

FSM Rule 45 differs markedly from Rule 45 of the United States Federal Rules of Civil Procedure on which it was based. The FSM Rule does not require notice of a trial subpoena to be served on the opposing party, and the court will not read this requirement into the rule. Panuelo urges that Bank of the FSM v. Bergen, 7 FSM Intrm. 595 (Pon. 1996), stands for the proposition that "all parties must be served litigation papers," and that this extends to trial subpoenas. However, at issue in Bergen was the service of a motion. Service of a motion upon an opposing party is expressly required under Rule 6(d) of the FSM Rules of Civil Procedure. Such is not the case with a trial subpoena. Panuelo's reliance on Bergen is misplaced. Failure to serve the trial subpoenas did not constitute improper conduct under Rule 60(b)(3) in the absence, as was the case here, of any pre-trial order requiring this.

C. The Rule 60(b)(6) claim

Finally, Panuelo contends that negligence - tantamount to gross in degree although that designation is not used - on the part of Phillip, whom Panuelo states he was consulting about the case before the trial on an off-the-record basis, justifies relief under Rule 60(b)(6), which provides that a party may be relieved from judgment for "any other reason justifying relief from the operation of a judgment." On this point,

there is an older line of cases that holds that when an attorney is guilty of gross negligence, and the client is innocent of wrongdoing, relief from a judgment may be had under Rule 60(b)(6) even though this "neglect" is not "excusable" under Rule 60(b)(1) (see § 60.41[2]). This line of cases goes against the general rule that conduct arguably within some other subsection of Rule 60(b) should not be grounds for relief under the catch-all provision of Rule 60(b)(6) (see [2], above). This line of cases also is illogical, in that the opponent is made to bear the brunt of unacceptable conduct by an attorney while the party that hired the attorney obtains relief. The Supreme court [sic] has rejected this result and makes a client bear the consequences of misconduct by the attorney the client chose to hire (see § 60.41[2]).

12 James Wm. Moore et al., supra, § 60.48[4][b].

The parameters of Panuelo's professional relationship with Phillip are not now before this court. But regardless of the degree, or lack thereof, of any attorney negligence, this court declines to deem gross negligence, even if demonstrated, a separate basis for relief under Rule 60(b)(6). The better course is to follow established FSM law, under which attorney neglect as a basis for Rule 60(b) falls within subsection (1) of Rule 60(b), "mistake, inadvertence, surprise, or excusable neglect" (emphasis added). Mid-Pacific Constr. Co. v. Senda, 7 FSM Intrm. 129, 135 (Pon. 1995). Generally, under Mid-Pacific, attorney negligence is not a basis for Rule 60(b)(1) relief. Parties "may freely choose their attorneys [and] should not be allowed to avoid the ramification of the acts or omissions of their chosen counsel." Parkland Dev., Inc. v. Anderson, 2000 Guam 8, ¶ 15. A party in a civil case whose attorney's conduct has fallen below a reasonable standard has other remedies. Id. n.6. To grant relief under Rule 60(b)(1) in such circumstances would penalize the nonmoving party for the negligent conduct of the moving party's counsel. Link v. Wabash R.R., 370 U.S. 626, 634 n.10, 82 S. Ct. 1386, 1390 n.10, 8 L. Ed. 2d 734, 740 n.10 (1962) ("[K]eeping this suit alive merely because plaintiff should not be penalized for the omissions of his own attorney would be visiting the sins of plaintiff's lawyer upon the defendant. (emphasis in original)).

As this court noted recently,

[t]he exception to this rule [that attorney neglect does not state a basis for relief under Rule 60(b)(1)] is where the neglect itself is excusable. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 394, 113 S. Ct. 1489, 1499, 123 L. Ed. 2d 74, 89 (1993) (analyzing "excusable neglect" in Rule 60(b)(1) terms although case under discussion involved corresponding bankruptcy rule). The Pioneer court emphasized that clients are responsible for the counsel's conduct, and held that "the proper focus is upon whether the neglect of respondents [i.e., the clients] and their counsel was excusable." Pioneer, 507 U.S. at 397, 113 S. Ct. at 1499, 123 L. Ed. 2d at 90-91 (emphasis in the original). In commenting on Pioneer, Prof. Moore notes the significance of this case as it stands for a "clarifi[cation] that clients must be held accountable for the acts or omissions of their attorneys." 12 James Wm. Moore, Moore's Federal Practice ¶ 60.41[2], at 60-94 (3d ed. 1999) (footnote omitted).

Elymore v. Walter, 10 FSM Intrm. 267, 269 (Pon. 2001). Panuelo alleges gross negligence on Phillip's part. As such, his contentions do not entitle him to relief under the excusable neglect provision of Rule 60(b)(1). See 12 James Wm. Moore et al., supra, § 60.41[1][c][i], at 60-89. ("[D]eliberate or willful conduct . . . precludes, by its very nature, a finding of . . . 'excusable neglect.'" (footnote omitted)).

Moreover, a Pioneer analysis of excusable neglect under Rule 60(b)(1) by its terms brings into play the conduct of the client, as well counsel: "the proper focus is upon whether the neglect of respondents [i.e., the clients] and their counsel was excusable." Pioneer, 507 U.S. at 397, 113 S. Ct. at 1499, 123 L. Ed. 2d at 90-91 (emphasis in the original). Pioneer is distinguishable from the case at bar since it involved a situation where the attorney had formally appeared in the case. In this case, Panuelo elected at relevant times to represent himself, which he was free to do. While proceeding pro se, he did not participate fully in the litigation, and in fact on one occasion a monetary sanction of $495.50 was imposed against him for failure to respond to a document production request. Panuelo's conduct of the litigation may have been colored by his position, which he apparently took throughout this case, that plaintiff Amayo "was never employed by me [Panuelo] or any business of mine in any capacity." Aff. of Ioanis Panuelo ¶ 8, Ex. "A" to Motion for New Trial Pursuant to Rule 59 of the Rules of Civil Procedure; Motion for Relief From Judgment Pursuant to Rule 60(b) (June 25, 2001). He testified similarly at trial. However, lack of full involvement in the pretrial process for whatever reasons where Panuelo had the opportunity to participate - and indeed was required to do so but did not when it came to responding to plaintiffs' discovery - does not constitute excusable neglect under Rule 60(b) of the FSM Rules of Civil Procedure. Hence, Panuelo has not demonstrated that his own neglect of this litigation, either in his role of client or attorney, was excusable. Nor, under Pioneer, has he demonstrated any neglect on the part of attorney Phillip, whom he was consulting off the record, was excusable. Or more precisely, Panuelo has not attempted to demonstrate excusable neglect on Phillip's part since he is urging a logically contrary position, that Phillip's negligence was tantamount to gross in character.

A specific subpoint of Panuelo's contentions with respect to the alleged negligence of Phillip is that Phillip did not move for a trial continuance when he appeared with Panuelo during the afternoon session of trial. Generally, failure to object results in a waiver of the objection. See Moylan v. Siciliano, 292 F.2d 704, 705 (9th Cir. 1961) (holding that if appellants were genuinely surprised by evidence adduced at trial, the remedy would have been to ask for a continuance in order to "gather their wits"; in the absence of such an objection, no proper grounds existed to open up the judgment). In this case, Phillip neither objected nor moved for a continuance. One commentator has underscored the necessity of moving for a continuance in such a situation:

The rule [Rule 59 of the U.S. Federal Rules of Civil Procedure on which our Rule 59 is modeled] provides a means for relief in cases in which a party has been unfairly made the victim of surprise, but relief will be denied if the party failed to seek a continuance.

11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2805 (1973) (emphasis added) (footnotes omitted). Surprise, along with excusable neglect, is also addressed by Rule 60(b)(1), under which the court has considered Panuelo's attorney negligence argument. Thus, if a party is surprised at trial he is "amply protected" by Rules 59(a) and 60(b). United States v. Kralmann, 3 F.R.D. 473, 475 (E.D. Ky. 1943).

Panuelo emphasizes Phillip's failure to object and request a continuance as it relates to Phillip's alleged negligence. Yet it remains to be seen how Panuelo was prejudiced by Phillip's alleged shortcomings in this regard. Given that it is immaterial that Phillip himself had notice of the trial, see supra part III.A.1.; and given Panuelo's pattern of disengagement with the litigation see supra note 3, it is not immediately apparent on what basis Phillip could have argued that Panuelo was entitled to a continuance. While Panuelo lays his unpreparedness for trial at the feet of non-record counsel, to do so is inconsistent with Pioneer, which focuses on the neglect of the both client and counsel. Here, there was no attorney of record. For the limited purpose of relief under Rule 60(b)(1) of the FSM Rules of Civil Procedure, this court is disinclined to find that Panuelo, having elected at relevant times to be his own counsel of record, may ascribe his own on-the-record conduct of this litigation after the fact to off-the-record counsel.

Accordingly, Panuelo's request for relief under Rule 60(b)(6), which the court treats under Rule 60(b)(1), is denied.

Although the court has treated Panuelo's attorney negligence claim under Rule 60(b)(1), it has also considered whether there are "any other reason[s] justifying relief from the operation of the judgment" that would justify granting relief under subsection (6) of Rule 60(b). Subsection (6) has been described as a "'grand reservoir of equitable power to do justice in a particular case,'" subject to the requirement that the provision is applicable only where there is a basis for relief different from those enumerated in subsections (1) through (5) of Rule 60(b), and to the requirement that "extraordinary circumstances" exist for justifying relief. 12 James Wm. Moore et al., supra, § 60.48[1] (citing Compton v. Alton S.S. Co., 608 F.2d 96, 106 (5th Cir. 1979) (quoting an earlier edition of Moore's as to the first quoted material)). "[E]xtraordinary circumstances" usually means that the movant himself was not at fault for his predicament. Id. § 60.48[3][b]. Conversely, the usual implication of fault on the part of the movant is that there are no "extraordinary circumstances." Id. § 60.48[3][c]. Here, there was sufficient action, and failure to act, on the part of Panuelo to preclude the argument that there was no fault on his part. Second, there is also no distinct claim for relief that falls outside those specifically enumerated in subsections (b)(1) through (b)(5) of Rule 60.

That said, two issues loom large in this case. A review of them is consistent with the invitation to equitable review extended by subsection (6) of Rule 60(b).

First is whether or not Amayo was working for Panuelo at the time of the accident which rendered him a paraplegic. Panuelo contends in his post trial motions, as he did throughout the litigation, that Amayo never worked for him. Panuelo testified to this effect during the afternoon session of the trial. However, as set out in this court's opinion entered after trial, there was substantial and convincing testimony that Amayo was employed by Panuelo at the time of the accident. Neither this nor any other court is in a position to say what might have been. But to the extent this issue is related to the alleged negligence of attorney Phillip, and based only on the specific evidence presented at trial including Panuelo's own testimony, it is at least not immediately apparent how a different lawyer, or a different level of lawyer participation before or during trial, would have changed this finding. Panuelo had his day in court on this point. That he did not prevail does not invoke subsection (6) of Rule 60(b).

There was a potentially more important issue from Panuelo's standpoint than Amayo's employment status - potentially more important because it was not addressed either in the pleadings or at trial. That is the issue, raised for the first time in Panuelo's post trial motion, of the construction site safety standard of care to which an owner/contractor is to be held in Pohnpei. Panuelo contends that the "Court is obligated to take into consideration the standard of care customarily exercised in Pohnpei by prudent contractors, and that with the possible exception of hard hats, other forms of protection [such as safety ropes, safety railings, safety harnesses, and safety belts] are not customarily practiced in Pohnpei." Motion for New Trial Pursuant to Rule 59 of the Rules of Civil Procedure; Motion for Relief From Judgment Pursuant to Rule 60(b) at 11-12 (June 25, 2001).

Two points bear making. First, the evidence at trial was that no safety measures were employed at the site. Importantly, Panuelo does not contradict this finding in any way. "In determining whether conduct is negligent, the customs of the community, or of others under like circumstances, are factors to be taken into account, but are not controlling where a reasonable man would not follow them." Restatement (Second) of the Law of Torts § 295A (1965). The testimony at trial established the there was a significant element of danger inherent in working at the heights from which Amayo fell. It is not a defense to say that other owner/ contractors building multistory buildings in Pohnpei would have operated in the same way, without taking safety precautions. In other words, it is not a defense to say that others engaged in the same conduct were, or are on an ongoing basis, negligent. Although Panuelo would seem to invoke Micronesian custom and tradition under Article XI, Section 11 of the FSM Constitution in his motions, the construction of a multistory building using imported technology is not imbued with Pohnpeian custom and tradition so as to lend itself to an analysis in those terms. See Senda v. Semes, 8 FSM Intrm. 484, 497 (Pon. 1998).

Summarizing, neither Amayo's employment status, nor the unlitigated question of the appropriate standard of care, state a basis for relief under any of the various subsections of Rule 60(b) of the FSM Rules of Civil Procedure, specifically subsection (6). The Rule 60 motion is therefore denied.

D. Final point

Plaintiffs assert in their surreply to the Rule 59 and 60 motions a specific defect in the trial proceedings. Although the defect resulted in no prejudice to them, the court addresses the point raised. Plaintiffs contend that "Panuelo's [discovery] rule violations went unpunished and without sanction in the previous trial. Here, no default was entered, and no prohibition on introduction of evidence was enforced, despite two (2) previous Court orders that pointed to those remedies in the favor of Plaintiffs." Pl.s' Supplemental Opp'n Memorandum to Def.s' Motion for a New Trial and Motion for Relief of Judgment at 6 (July 13, 2001).

In its order of September 15, 2000, the court indicated that a default would be entered as to liability if Panuelo failed to provide requested discovery. At the start of trial, plaintiffs moved for entry of default on liability on the basis that the discovery had not been provided. The court took the motion under advisement, and the case proceeded with evidence on all issues. The plaintiffs complain that by not entering a default as to liability at the commencement of trial, the court permitted Panuelo to escape any sanction for his failure to comply with discovery.

Whether to grant a motion for entry of default judgment is discretionary with the court, and not a matter of right. 10 James Wm. Moore et al., Moore's Federal Practice § 55.20[1][b] (3d ed. 1999). In making this determination, "the court may consider a variety of factors [including] . . . the merits of the plaintiff's substantive claim." Id. Had the court granted the motion at the commencement of trial, then the next step would have been for plaintiffs to prove up their damages under Rule 55(b)(2), since plaintiffs were seeking general damages, and not damages under Rule 55(b)(1) for "a sum certain or for a sum which can by computation be made certain." Rule 55(b)(2) provides that in such a default situation "the court may conduct such hearings . . . as it deems necessary and proper" in order to determine damages. Such a hearing was appropriate in this case. But given the substantial nature of plaintiffs' claims, it was likewise appropriate for the court to consider the merits of those claims as part of that hearing. This was accomplished when the plaintiffs went forward with their proof on both liability and damages. While Panuelo may have escaped his discovery sanction by eluding a judgment of liability by default, the larger benefit was an informed judgment on the merits accomplished through a minimum of inconvenience to plaintiffs - their witnesses who spoke to liability where present at the court ready to testify and the testimony was expeditiously accomplished. By no means is this to say that such an approach would be appropriate in every default setting. Here it was.

IV. Exhibits to the Rule 59 and 60 motions

Panuelo has appended to his motions exhibits "F" and "G," which consist of two affidavits and supporting documents. The court accepts plaintiffs' representations that the identities of the affiants were not disclosed and the documents were not produced during discovery as they should have been. The exception is the January 28, 1999, contract between MJC and Panuelo, which was admitted into evidence at trial as plaintiffs' exhibit 4. Panuelo may not derive benefit post trial from tendering that which he was under a discovery obligation to produce pre-trial, and did not. With the exception of the duplicate copy of plaintiffs' trial exhibit 4, the remaining portions of exhibits "F" and "G" are stricken from the record.

V. The motion for taxing of costs

Plaintiffs have requested nineteen items of costs in this case totalling $2,932.46. "Costs" are not synonymous with a party's expenses. 10 James Wm. Moore et al., supra, § 54.103. Only certain types of expenses are cognizable as costs.

Items 4, 11, 13, and 16. These are service fees totalling $190.00. Although some of the service was done by servers employed at various times by plaintiffs' counsel, they are duly appointed process servers and charged separate fees for the service. As such they were acting as private process servers. Fees charged by private process servers may be recoverable as costs. Id. § 54.103[3][b].

Items 7, 10, and 15. These are charges totalling $790.00 for the transcripts of the depositions of Johnny Ambuyoc, Alfredo Amayo, and Ron Pangelinan. While the documentation for the Amayo deposition charge is a check made payable to an attorney in the Philippines, the court accepts counsel's representation that this was for the transcript as noted on the check stub. The transcription certainly was done, as the deposition was admitted into evidence at trial. The depositions costs are allowed. Damarlane v. United States, 7 FSM Intrm. 468, 470 (Pon. 1995).

Relying on Ray v. Electrical Engineering, 2 FSM Intrm. 21, 26 (App. 1985), plaintiffs requests the award of travel expenses incurred by plaintiffs' counsel in traveling to the Philippines, where plaintiffs reside, for the purposes of case development and the taking of plaintiff Alfredo Amayo's deposition. Ray acknowledges the geographical configuration of Micronesia and stands for the limited proposition that travel expenses of counsel may be awarded where there is no on-island counsel available and a party of necessity has had to engage off-island counsel. Here, plaintiffs' counsel maintains a Pohnpei office and is thus local counsel. Further, Ray permits expenses incurred in traveling to the island where the case is pending; in this case plaintiffs are in part seeking costs associated in traveling away from the island where the case is pending to the plaintiffs' place of residence. Given the nature of Amayo's injuries, it can hardly be said that his decision to return to the Philippines and family support structure there was voluntary in the strict sense. Nevertheless, the court declines to interpret Ray expansively to include the kind of travel expenses sought by plaintiffs.

In the absence of express authority, the plaintiffs' remaining items of costs are disallowed. Thus, the total of allowed costs is $980.

VI. Motion for stay

The motion for stay pending the ruling on the motions for new trial and relief from judgment are denied as moot.

VII. Motion for writ of execution

Plaintiffs' motion for writ of execution includes certain bank accounts held by third parties. The attempt to execute on the bank accounts constitutes a garnishment, since it is a debt owed by a third party to the judgment debtor. This remedy is recognized in the FSM, Bank of Guam v. Elwise, 4 FSM Intrm. 150, 152 (Pon. 1989), and should go forward as a separate proceeding. The writ of execution shall issue upon the court's receipt of a simplified form of writ that conforms with 6 F.S.M.C. 1407.

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