FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Medabalmi v. Island Imports Co,
10 FSM Intrm. 217 (Chk. 2001)

[10 FSM Intrm. 217]

RAO MEDABALMI and DEVI B.B. MEDABALMI,
Plaintiffs,

vs.

ISLAND IMPORTS CO., JOHN AISER ENGICHY,
AND ROSEMARY ENGICHY,
Defendants.

CIVIL ACTION NO. 2000-1032

ORDER

Richard H. Benson
Associate Justice

Decided: June 6, 2001

APPEARANCES:

For the Plaintiff:
Craig D. Reffner, Esq.
Law Offices of Fredrick L. Ramp
P.O. Box 1480
Kolonia, Pohnpei FM 96941

For the Defendant:
Wesley Simina, Esq.
P.O. Box 94
Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure ; Motions
When motions to enlarge time are made before the expiration of the period prescribed by a court order to do some thing, they may be granted just for cause shown. Medabalmi v. Island Imports Co., 10 FSM Intrm. 217, 218 (Chk. 2001).

Civil Procedure ; Motions
When a motion to enlarge time is filed after the time set by an order has expired, the court must determine whether the movants' failure to timely act was the result of excusable neglect. Medabalmi v. Island Imports Co., 10 FSM Intrm. 217, 219 (Chk. 2001).

Civil Procedure ; Motions
The determination of what sorts of neglect that can be considered "excusable" is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include the danger of prejudice to the nonmovant, the length of delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was in the reasonable control of the movant, 

[10 FSM Intrm. 218]

and whether the movant acted in good faith. Medabalmi v. Island Imports Co., 10 FSM Intrm. 217, 219 (Chk. 2001).

Civil Procedure
When the FSM Supreme Court has not already construed an FSM court rule which is similar or nearly identical to a U.S. rule, it may look to U.S. practice for guidance. Medabalmi v. Island Imports Co., 10 FSM Intrm. 217, 219 n.1 (Chk. 2001).

Civil Procedure ; Motions
To establish excusable neglect a movant must show good faith and a reasonable basis for noncompliance. Medabalmi v. Island Imports Co., 10 FSM Intrm. 217, 219 (Chk. 2001).

Civil Procedure ; Motions
The burden is on the movant to establish that the failure to act timely was the result of excusable neglect. Medabalmi v. Island Imports Co., 10 FSM Intrm. 217, 219 (Chk. 2001).

Civil Procedure ; Motions
Merely being a busy lawyer does not constitute excusable neglect justifying an enlargement of time. Medabalmi v. Island Imports Co., 10 FSM Intrm. 217, 219 (Chk. 2001).

Civil Procedure ; Discovery; Civil Procedure ; Motions
When the delay was within the movants' counsel's reasonable control, when the movants' inability to propound discovery because they failed to timely request it, will not affect their rights at trial ; e.g., they may still cross-examine the plaintiffs' witnesses, object to proffered evidence, and subpoena witnesses and documents, and when, taking account of all relevant circumstances surrounding the movants' omission, they have failed to show the excusable neglect that would justify enlarging their time to make discovery requests, an untimely motion to enlarge time for them to propound discovery requests will be denied. Medabalmi v. Island Imports Co., 10 FSM Intrm. 217, 219-20 (Chk. 2001).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This comes before the court on the Defendants' Request to Enlarge Time for Response to Discovery Requests by Plaintiffs, and Other Matters; Motion to Enlarge Time to Do Discovery by Defendants, filed May 7, 2001. The plaintiffs' response concurred with the motion to enlarge time for the defendants to respond to discovery requests until June 15, 2001, for the parties to complete all discovery by July 16, 2001, and for all pretrial motions to be filed by July 23, 2001, but opposed the motion to enlarge time for the defendants to propound discovery requests upon the plaintiffs until June 15, 2001.

The defendants' motion to enlarge time to respond to discovery requests, for the parties to complete all discovery and for filing all pretrial motions was made before the expiration of the period prescribed by court order of February 19, 2001, to do those things. Such requests may be granted just for cause shown. FSM Civ. R. 6(b)(1). The plaintiffs concur with these requests and cause has been shown. That motion to enlarge time is therefore granted.

On May 7, 2001, the defendants also moved that the time to request discovery of the plaintiffs 

[10 FSM Intrm. 219]

to enlarged until June 15, 2001. The defendants, by order of February 19, 2001, had had until April 19, 2001 to make such requests. They did not. Because the motion was not filed before the time set by the order had expired, the court must determine whether the defendants' failure to timely request discovery was the result of excusable neglect. FSM Civ. R. 6(b)(2). What may constitute a valid reason, pursuant to Rule 6(b)(1), to grant an enlargement of time when it is sought before the time set by court order has expired, will not necessarily constitute the excusable neglect needed to grant an enlargement when it is sought after the time has expired. See Paul v. Hedson, 6 FSM Intrm. 146, 148 (Pon. 1993). The determination of what sorts of neglect that can be considered "excusable"

is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include . . . the danger of prejudice to the [nonmovant], the length of delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was in the reasonable control of the movant, and whether the movant acted in good faith.

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395, 113 S. Ct. 1489, 1498, 123 L. Ed. 2d 74, 89-90 (1993) (footnote omitted). "To establish excusable neglect . . . a movant must show good faith and a reasonable basis for noncompliance." Rittmaster v. Painewebber Group, Inc. (In re Painewebber Ltd. Partnerships Litig.), 147 F.3d 132, 135 (2d Cir. 1998). The burden is on the movant to establish that the failure to act timely was the result of excusable neglect. Yonofsky v. Wernick, 362 F. Supp. 1005, 1012 (S.D.N.Y. 1973).

Having failed to timely request discovery by April 19, the defendants now ask that the time for them to request discovery of the plaintiffs be enlarged until June 15, 2001. To show the excusable neglect needed to justify the enlargement, they point out that their attorney was busy running in the March 6, 2001 election for a seat in this year's Constitutional Convention, and soon after that he was counsel in a time-consuming election appeal for the Chuuk House of Representatives, which was not finally disposed of until April 17, and in the urgent problem of helping Mayor Os of Polle purge himself of contempt and avoid jail. This, the press of other business, and other urgent unspecified personal matters caused counsel to overlook the deadline for discovery requests.

The danger of any prejudice to the nonmovants if this motion were granted appears slight because the defendants' discovery might be done while other discovery matters are completed. It is uncertain what impact an enlargement would have on the judicial proceedings. Those considerations thus weigh in the movants' favor in the equitable balance. But the reason for the delay (their counsel being a busy lawyer) is insufficient to establish excusable neglect. Merely being a busy lawyer does not constitute excusable neglect justifying an enlargement of time. See, e.g., Marquee Television Network, Inc. v. Early, 713 F.2d 837, 838 (D.C. Cir. 1983) (that attorney was sole practitioner also carrying full teaching load at a law school and financially unable to obtain needed assistance not excusable neglect); McLaughlin v. City of La Grange, 662 F.2d 1385, 1387 (11th Cir. 1981) (that counsel is sole practitioner engaged in preparation of other cases does not constitute excusable neglect); Maghan v. Young, 154 F.2d 13, 13 (D.C. Cir. 1946) (being professionally engaged in attending to other matters is not excusable neglect); Mawhinney v. Heckler, 600 F. Supp. 783, 784 (D. Me. 1985) (failure to timely file because of backlog of cases not excusable neglect).

Furthermore, the delay was within the movants' counsel's reasonable control. No reasonable

[10 FSM Intrm. 220]

explanation has been offered why it was not possible to move for an enlargement of time before the April 19th deadline to submit discovery requests. Even now, those requests have apparently not been prepared and are not ready to be submitted. (Proposed discovery requests were not filed with the request to enlarge.) No showing of good faith has been made, but no bad faith is apparent to the court either. Moreover, the defendants' inability to propound discovery does not affect their rights at trial ; e.g., they may still cross-examine the plaintiffs' witnesses, object to proffered evidence, and subpoena witnesses and documents. Accordingly, taking account of all relevant circumstances surrounding the movants' omission, they have failed to show the excusable neglect that would justify enlarging their time to make discovery requests.

Good cause appearing, now therefore it is hereby ordered that the defendants' motion to enlarge time for them to propound discovery requests to the plaintiffs is denied. It is further ordered that the defendants' motion to enlarge time for the defendants to respond to discovery requests until June 15, 2001, for the parties to complete all discovery by July 16, 2001, and for all pretrial motions to be filed by July 23, 2001 is granted.