FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Amayo v MJ Company, 13 FSM Intrm. 242 (Pon. 2005)

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

MEMORANDUM OF LAW

Martin Yinug
Associate Justice

Hearing: April 21, 26, 2005
Decided: April 26, 2005
Memorandum Entered: May 11, 2005

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

For the Defendant:
Craig D. Reffner, Esq.
(Panuelo) Law Office of Fredrick L. Ramp
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Service
When a subpoena was not served on the plaintiff himself, as required by Rule 45(c), but rather on his counsel and when the subpoena did not comport with FSM Civil Rule 45(e), which provides that an FSM court may issue a subpoena directed to an FSM national or resident who is in a foreign country, because the plaintiff is a Filipino citizen residing in the Philippines, the court will grant a motion to quash the subpoena. Amayo v. MJ Co., 13 FSM Intrm. 242, 245 (Pon. 2005).

Civil Procedure - Service
Since Rule 45 does not provide for attorney’s fees in the event a subpoena is quashed, a request for attorney’s fees for successfully bringing a motion to quash will be denied. Amayo v. MJ Co., 13 FSM Intrm. 242, 245 (Pon. 2005).

Civil Procedure - Depositions
Since Rule 32(a) provides that a deposition or part thereof may be used at trial so far as admissible under the evidence rules against any party who was present or represented at the deposition’s taking or who had reasonable notice thereof; when the defendant was personally served with a notice of the plaintiff’s deposition and he did not object in any way to the deposition being taken in the Philippines and he did not attend the deposition, he had reasonable notice of the deposition. Further, Rule 32(a)(3) provides that the deposition of a witness, whether or not a party, may be used for any purpose if the court finds that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment. Whether circumstances exist such that a plaintiff’s deposition may be used at trial in lieu of live testimony is to be made at the time of trial, and not months beforehand. Amayo v. MJ Co., 13 FSM Intrm. 242, 245 (Pon. 2005).

Civil Procedure - Depositions
When the plaintiff suffers from paraplegia and that that condition is ongoing, and when, although the court would have preferred the treating physician’s opinion that he was unable to travel, it is also undeniable that paraplegia is a serious ongoing medical condition, the plaintiff meets the illness/infirmity provision of Rule 32(a)(3) so that his deposition may be used at trial in lieu of live testimony. Amayo v. MJ Co., 13 FSM Intrm. 242, 246 (Pon. 2005).

Civil Procedure - Depositions
A deposition may be used for any purpose if the witness is off of the island at which the trial or hearing is being held, unless it appears that the absence of the witness was procured by the party offering the deposition. Amayo v. MJ Co., 13 FSM Intrm. 242, 246 (Pon. 2005).

Civil Procedure - Depositions
A party may use his or her own deposition at a trial. When a party is seeking to use his or her own deposition at trial, the court may consider all the circumstances relating to the party’s absence to determine whether the deposition may be used. Amayo v. MJ Co., 13 FSM Intrm. 242, 246 (Pon. 2005).

Civil Procedure - Depositions
When the plaintiff is off of the island (Pohnpei) where the trial is being held and is in the Philippines where he resides, the fact that he resides there does not mean that he has "procured" his own absence from the place of the trial in the sense contemplated by Rule 32. Since the plaintiff was referred to the Philippines for medical care shortly after his injury preventing him from continuing to work in Pohnpei, the fact that he is absent from Pohnpei under these conditions supports the admission of his deposition at the re-trial, subject to any of the evidentiary objections that would obtain if he were testifying in person. Amayo v. MJ Co., 13 FSM Intrm. 242, 246 (Pon. 2005).

Civil Procedure - Depositions; Civil Procedure - Discovery
When, during discovery that preceded the first trial, the defendant had the opportunity to take the plaintiff’s deposition but did not; when he did not propound any other discovery; when he did not object when plaintiff’s counsel noticed plaintiff’s deposition in the Philippines and did not attend that deposition; when he did not comply fully with the plaintiff’s discovery requests and the court ordered him to comply, but he did not and was subject to a $495.50 sanction; when, after the case was remanded for a new trial, the court set terms and conditions for conducting discovery, the first of which was that he pay the outstanding $495.50 discovery sanction before undertaking any further discovery, but it was not paid until five months after the discovery cutoff date; and when, by a motion filed twenty-six days before the re-trial was scheduled, the defendant sought leave to take the plaintiff’s deposition, the defendant’s motion to exclude the plaintiff’s deposition from being offered at trial will be denied. Amayo v. MJ Co., 13 FSM Intrm. 242, 246-47 (Pon. 2005).

Civil Procedure - Discovery; Civil Procedure - Sanctions
When the defendant engaged in the dubious practice, at best, of filing contingent motions concerning discovery six months after the court-ordered discovery cutoff date and did not file his pretrial motions within the time specified and since, under Rule 37(a)(4), the court "shall" award attorney’s fees against the party moving to compel discovery if the motion is denied and the court made no finding that the motion was substantially justified or that other circumstances make an award of expenses unjust, no reason exists under Rule 37(a)(4) why attorney’s fees should not be awarded. The plaintiff’s fee request will be granted. Amayo v. MJ Co., 13 FSM Intrm. 242, 247 (Pon. 2005).

Courts - Recusal
When the trial judge is an unnamed member of a plaintiff class in another case, represented by the same counsel as the plaintiff in this case and defendant’s counsel had notice of that more than one year before making a motion to recuse under 4 F.S.M.C. 124(1), and since a basis for a motion brought under section 124(1) is subject to waiver under section 4 F.S.M.C. 124(5), the basis for the judge’s recusal was waived. Amayo v. MJ Co., 13 FSM Intrm. 242, 248-49 (Pon. 2005).

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COURT’S OPINION

MARTIN G. YINUG, Associate Justice:

As requested by defendant Ioanis Panuelo’s counsel at the hearing on April 26, 2005, this memorandum elaborates on the reasons why on April 21, 2005, the court granted Amayo’s March 21, 2005 motion for protective order and to quash subpoena, and denied Panuelo’s March 31, 2005 contingent motion in limine to exclude the use of the videotaped deposition of Amayo at the re-trial of this case. This memorandum also further addresses the denial of Panuelo’s recusal motion. The court denied the recusal motion on the record during the hearing held on April 26, 2005.

1. Amayo’s March 21, 2005 motion for protective order and to quash subpoena

Amayo’s motion is directed to a subpoena issued on March 4, 2005. The purpose of the subpoena was to compel the appearance of plaintiff Alfredo Amayo at the re-trial of this case previously set for April 26, 2005. (The trial did not go forward as scheduled pending appellate proceedings.) The subpoena was not served on Amayo himself, as required by Rule 45(c) of the FSM Rules of Civil Procedure, but rather on his counsel. Further, the subpoena did not comport with Rule 45(e) of the FSM Rules of Civil Procedure, which provides that an FSM court may issue a subpoena directed to "a national or resident of the Federated States of Micronesia who is in a foreign country." Mr. Amayo is a Filipino who now resides in the Philippines. Thus Panuelo utilized the subpoena in a manner at variance with the applicable rule. For these reasons the court on April 21, 2005, granted Amayo’s March 21, 2005 motion to quash the subpoena.

Amayo seeks attorney’s fees for bringing the March 21, 2005 motion, and the April 21, 2005 ruling on the motion indicated that the attorney’s fee question would be considered at a later time. Rule 45 of the FSM Rules of Civil Procedure does not provide for attorney’s fees in the event a subpoena is quashed. The request for a protective order is also directed to the subpoena and is thus duplicative. The request for attorney’s fees for bringing the March 21, 2005 motion to quash is denied. Amayo makes reference to Rule 16. Relief under that rule is denied.

2. Panuelo’s March 31, 2005 contingent motion in limine

This motion seeks to preclude the plaintiff Amayo from offering his deposition as evidence at the re-trial in the event that the court grants his motion to quash the subpoena. The court has given its reasons for quashing the subpoena, and will set out its reasons for denying the motion in limine.

The parties were aware of the deposition issue ever since the first trial in this case in February of 2001, when Amayo’s deposition was admitted into evidence. Nothing prevented Panuelo from presenting the issue of the use of the deposition at re-trial during the time provided for discovery and pretrial motions. (Pursuant to the order of June 25, 2004, the cutoff date was September 13, 2004, for the former and September 30, 2004, for the latter.) No valid interest is served by a belated pretrial motion filed 26 days before trial, and six months after the time for filing pretrial motions had come and gone. The motion is untimely, and is deniable on that basis alone. Notwithstanding the motion’s untimeliness, the court will address the merits of permitting the deposition at the re-trial.

FSM Rule of Civil Procedure 32(a) provides that at trial a deposition or part thereof may be used so far as admissible under the rules of evidence "against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof" (emphasis added). Panuelo was personally served with a notice of Amayo’s deposition; he did not object in any way to the taking of the deposition in the Philippines; and he did not attend the deposition. Thus Panuelo had reasonable notice of the deposition. Further, FSM Civil Rule 32(a)(3) provides that "the deposition of a witness, whether or not a party, may be used for any purpose if the court finds: . . . (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment." Under Rule 32(a)(3), the determination whether circumstances exist such that a plaintiff’s deposition may be used at trial in lieu of live testimony is to be made at the time of trial, and not months before hand. Morris v. Truk, 3 FSM Intrm. 454, 457 (Truk 1988). For present purposes, it appears that Amayo suffers from paraplegia and that that condition is ongoing. While the court would have preferred the opinion of Amayo’s treating physician that Amayo is unable to travel, it is also undeniable that paraplegia is a serious ongoing medical condition. The court finds that Amayo meets the illness/infirmity provision of Rule 32(a)(3) as of the time scheduled for the re-trial of this matter on April 26, 2005.

In Jones v. United States, 720 F. Supp. 355, 366 (S.D.N.Y. 1989), the court admitted the deposition in its entirety of a physician whose medical condition, as described by medical information offered by the party offering the deposition, prevented him from testifying. See also Scarfarotti v. Bache & Co., 438 F. Supp. 199, 202 n.3 (S.D.N.Y. 1977) (witness’s deposition admitted where he fell ill and his doctor advised him not to make a trip from one place within a state to another place in the same state where the trial was being held). Where a witness remains unavailable because of his physical condition, the fact that a new trial has been ordered does not preclude the use of the deposition at the new trial. Murray v. United States, 316 F.2d 29, 30 (1st Cir. 1963). Murray applies here where the deposition which Amayo seeks to introduce was taken during the discovery that preceded the first trial.

Subsection (B) of Civil Rule 32(a)(3) also applies to the use of Amayo’s deposition at trial. The rule provides that a deposition may be used for any purpose if "the witness is off of the island at which the trial or hearing is being held, unless it appears that the absence of the witness was procured by the party offering the deposition." More specifically, at issue here is the use of a deposition of a witness who is also a party. As Amayo points out,

[t]he Federal Rules of Civil Procedure contemplate that a party may use his or her own deposition at a trial. When a party is seeking to use his or her own deposition at trial, the court may consider all the circumstances relating to the party’s absence to determine whether the deposition may be used.

7 James Wm. Moore et al., Moore’s Federal Practice § 32.24[5] (3d ed. 1999) (footnotes omitted but citing in n.35 to Richard v. Brooks, 227 F.2d 490, 492-93 (2d Cir. 1955) (holding that the plaintiff had not "procured" her own absence within the meaning of the rule simply because she lived in another state and had not attempted to be present at trial); Morgan v. Ward, 699 F. Supp. 1025, 1048 & n.33 (N.D.N.Y. 1988) (plaintiff’s deposition admitted into evidence when plaintiff lived in New York City and place of trial was over 100 miles away); Nash v. Heckler, 108 F.R.D. 376, 378 (W.D.N.Y. 1985) (cases show a broad application of the rule allowing plaintiff to introduce deposition in the place of live testimony)).

In the case at bar, plaintiff Amayo is off of the island, i.e., Pohnpei, where the trial is being held, and is in the Philippines where he resides. The fact that he resides there does not mean that he has "procured" his own absence from the place of the trial in the sense contemplated by the rule. Rather, it appears that he was referred for medical care to the Philippines shortly after the accident when his injury prevented him from continuing to work in Pohnpei. The fact that he is absent from Pohnpei under these conditions supports the admission of his deposition at the re-trial, subject to any of the evidentiary objections that would obtain if he were testifying in person.

Apart from the fact that the FSM Civil Rule 32 permits the plaintiff to use his or her own deposition at trial under the circumstances here, the discovery history of this case weighs against Panuelo. During discovery that preceded the first trial, Panuelo had the opportunity to take the deposition of Amayo but did not. He did not propound any other discovery. He did not object when Amayo’s counsel noticed Amayo’s deposition in the Philippines. He did not attend the deposition in the Philippines. He did not comply fully with Amayo’s discovery requests. When the court ordered him to comply, he did not and was subject to a sanction in the amount of $495.50.

After this case was remanded to this court for a new trial, the court set terms and conditions for conducting discovery, the first of which was that Panuelo pay the outstanding discovery sanction of $495.50 before he undertook any further discovery. Between the June 25, 2004 order setting out the terms and conditions of discovery and the discovery cutoff date of September 13, 2004, Panuelo did not pay the sanction. That sanction was not paid until February, 2005, and by another contingent motion filed on March 31, 2005, Panuelo sought leave to take Amayo’s deposition in the event that Amayo’s motion to quash was granted and Panuelo’s motion in limine was denied. The contingent motion for leave to take the deposition was addressed by order of April 18, 2005, and was effectively denied on April 21, 2005, when Amayo exercised the option given under the specified terms and conditions of the April 18, 2005 order and declined to agree to his tardy deposition. (Any belated, last minute taking of the deposition would also have meant the rescheduling of the re-trial.) Panuelo should have pursued his discovery within the time frame permitted by the June 25, 2004 order. He did not.

Based on the foregoing, Panuelo’s March 31, contingent motion to exclude the deposition of Amayo from being offered at trial is denied.

The court also notes that in his April 5, 2005 response to Panuelo’s March 31, 2005 contingent motion to depose Amayo, Amayo requested his attorney’s fees for responding to the motion. As just noted, Panuelo’s motion was effectively denied on April 21, 2005. The court has not previously ruled on Amayo’s fee request. Amayo in his response takes issue with filing "contingent" motions, and the court concurs that this was dubious practice at best, necessitated by the fact that Panuelo did not participate in discovery under the terms of the June 25, 2004 order, and did not file his pretrial motions within the time specified in that order. If he had done so, the issues raised "contingently" could have been presented in an orderly manner at that time, obviating the need for last minute "contingent" motions. Pursuant to Rule 37(a)(4) of the FSM Rules of Civil Procedure, the court "shall" award attorney’s fees against the party moving to compel discovery if the motion is denied, and the court makes no finding that the "making of the motion was substantially justified or that other circumstances make an award of expenses unjust." However denominated, Panuelo’s March 31, 2005 contingent motion "for leave of court" to depose Amayo is a motion to compel his deposition. Given Panuelo’s dilatory discovery conduct, no reason exists under Rule 37(a)(4) why attorney’s fees should not be awarded. Amayo’s fee request is granted. Amayo may submit a request in accordance with Jackson v. George, 10 FSM Intrm. 523, 527 (Kos. S. Ct. Tr. 2002).

3. Panuelo’s motion to recuse

Panuelo’s motion was denied orally at the hearing on April 26, 2005. In addition to the reasons noted at the hearing is the following.

In Reilly by Reilly v. Southeastern Pa. Transp., 489 A.2d 1291, 1297, 1302-03 (Pa. 1985), the Supreme Court of Pennsylvania held that a judge need not recuse himself from hearing a case where the attorney appearing in the case had also represented the judge in a class action seeking increased judicial compensation for all of the commonwealth’s judges and justices. Reilly differs from the instant case in that the motion to recuse based on class membership was made post-trial, id. at 1297, and thus there was a trial record available for review. The appellate court (designated the Superior Court - Pennsylvania has two tiers of appellate review) found that the judge’s membership in the class did not require his recusal. Id. at 1295. Subsequently the Pennsylvania Supreme Court determined that the movant had failed to show that the fact of the class action representation was unavailable during trial if due diligence had been exercised, and further determined that there was no indication that there would have been a different result in the case if the judge had not been a member of the class. Id. at 1302. The Pennsylvania Supreme Court concluded that there was no reasonable basis to question the impartiality of the trial judge. Id. Here, the appellate division will not have the benefit of a trial record, since the parties indicated orally at the April 26, 2005 hearing that they will take the denial of the recusal motion to the appellate division before the re-trial takes place. Notwithstanding these differences, it is still worthy of notice that on the facts of Reilly, neither the trial court, the appellate court, nor the supreme court found that recusal was required based on the trial judge’s membership in a class that had been represented by one of the attorney’s appearing before him.

The appellate court in Reilly invoked the rule of necessity, and denied the motion on the policy ground that the attorney representing the judges in the class action would have been prevented from practicing before any of the courts in the state. Id. at 1295. In the same vein, I would have to disqualify myself in all pending cases in which Berman is counsel for a party. Moreover, an additional public policy issue is present here. I am aware that defendant Ron Pangelinan is married to Associate Justice Dennis Yamase’s wife’s sister, and thus Associate Justice Yamase is Pangelinan’s brother-in-law as that term is broadly defined. Webster’s Third New International Dictionary 284 (1965). In Associate Justice Yamase’s case, a mandatory recusal situation would appear to present itself under 4 F.S.M.C. 124(2)(e)(i). Chief Justice Amaraich has participated in the appeal that resulted in this case’s remand. If I were to recuse myself, then the possibility exists that a non-sitting FSM judge would hear the case, or that an appeal taken from the re-trial would be composed of a panel of non-sitting FSM Supreme Court justices. Neither situation is desirable from a public policy or jurisprudential standpoint. The court was aware of Reilly at the time of the April 26, 2005 hearing, and these policy concerns, also addressed at the hearing, constitute an additional reason for denying Panuelo’s motion for recusal.

While the recusal motion based on class membership was not brought until after trial, an additional issue arose in Reilly involving the timing of a motion for recusal before trial that was based on a ground different from class membership. At a pretrial conference, counsel for one of the defendants orally requested that the trial judge recuse himself on the basis that the judge had demonstrated antipathy toward moving counsel in another case. 489 A.2d at 1296. Five days later the judge reminded counsel of the conversation, suggested that counsel file a written motion for recusal within five days, and told counsel that a written order would follow. Id. Counsel delayed filing the motion for recusal based on personal antipathy for eight months until just before trial when jury selection was under way. Id. at 1296-97. Counsel stated that the reason he had delayed filing the motion was that he "believe[d]" that the order regarding the recusal motion was received after the five days had expired. Id. at 1297. The trial judge, in ruling on the merits of the motion, stated that he had no antipathy toward counsel. Id. Noting that the lower appellate court had found that the issue of personal antipathy had been waived by the late filing of the motion, the Pennsylvania Supreme Court took a dim view of counsel’s contention that he had not received the order within five days from the date of entry, and rebuked counsel in this regard. Id. at 1300. Like the appellate court, the Pennsylvania Supreme Court found that the late filing of the motion constituted a waiver. Id.

In the case at bar an issue also arises regarding the timing of the recusal motion. The motion was filed late on Friday before trial was to commence on the following Tuesday, April 26, 2005. The basis for recusal was that Amayo’s counsel represents the class of plaintiffs in Civil Action No. 2003-3002, People of Rull ex rel. Ruepong v. M/V Kyowa Violet, a vessel grounding case pending in the Yap trial division. I am an unnamed member of that class. On April 24, 2003, I recused myself from hearing the case on the basis that I was a potential class member, and that my brother was one of the named class representatives. On March 19, 2004, I recused myself in another Yap trial division case, Civil Action No. 2004-3000, People of Weloy ex rel. Pong v. M/V Micronesian Heritage. The reason for recusal stated in the order is my class membership in People of Rull. People of Weloy also raises the issue of class certification in a factually similar vessel grounding case. Fred Ramp’s office, which represents Panuelo in this case, was served with a copy of the order of recusal in People of Weloy. (I also recused myself in another class action suit involving the M/V Micronesian Heritage, but Ramp’s office was not served with a copy of that order.) Ramp states that neither he nor his associate, Craig Reffner, reviewed the March 19, 2004 recusal order because "[t]he recusal was not important to us or our Micronesia [sic] Heritage clients nor the reasons for it." Aff. ¶ 3 (Apr. 26, 2005). Reffner states that he was not aware prior to April 21, 2005, that Amayo’s counsel, Dan Berman, represents the class of which I am a member in the People of Rull case. Aff. ¶ 10 (Apr. 26, 2005).

The service on Ramp’s office of the March 19, 2004 order constituted notice of my recusal in People of Rull regardless of whether the order was read or not. Panuelo has brought his motion for recusal pursuant to 4 F.S.M.C. 124(1). A basis for a motion brought under that section is subject to waiver under section 4 F.S.M.C. 124(5). More than a year elapsed from the time Ramp’s office was served with the order on March 19, 2004, and the filing of the motion for recusal on April 22, 2005. The basis for recusal was waived. In finding a waiver, I also emphasize that I considered the merits of the recusal motion and denied it on that basis during the April 26, 2005 hearing. I make the finding of waiver in addition to my ruling on the merits.

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