Lucky Development Co. Ltd. v. Tokai U.S.A. Inc.
CourtSupreme Court of The Commonwealth of The Northern Mariana Islands
Date FiledApril 16, 1991
Docket91-003
JudgeDela Cruz, Villagomez, Borja
StatusPublished
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Full Opinion
CLERK OF COURT
SUPREME COU· RT. CNMI
FILED
FOR PUBLICATlOX
IN THE SUPREME COURT OF THE
. COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS
LUCKY DEVELOPMENT CO., LTD., ) APPEAL NO. 91-003
) CIVIL ACTION NO. 90-828
Plaintiff, )
)
vs. ) ORDER STRIKING OPPOSITION
) MENORANDUM and DENYING
TOKAI U.S.A., INC., ) MOTION TO DISMISS
VICTORINO N. IGITOL and )
URSULA L. ALDAN, )
)
Defendants. )
____)
Defendant Tokai u.s.A., Inc. (hereafter Tokai) filed a motion
to dismiss the appeal of plaintiff on the ground that the appeal
did not "fully comply with the requirements of Commonwealth Rule of
Appellate Procedure 3 (c)." Memorandum in Support, p. 3. It argued
that the appellant in this appeal is Antonio Atalig, initial
counsel for plaintiff in the trial court. The orders appealed
from, as stated in plaintiff's Notice of Appeal, deals only with
sanctions against Antonio Atalig solely. As such, Tokai argues
that Antonio Atalig must be specified, pursuant to R.App�Proc.
J(c), as the appellant. It argues that failure to timely do so is
jurisdictional and the appeal should be dismissed.
This motion to dismiss was filed on March 19, 1991, and served
82
on plaintiff on the same day. The notice of hearing was filed on
March 20, 1991, setting the hearing date on the motion for April 4,
199.1, at 1:3 0 p.m. The Clerk of court served this notice on
plaintiff by placing it in plaintiff's box in the Clerk of Court's
Office.
Plaintiff filed his opposition memorandum on April 2, 1991,
and served Tokai on the same day.
On April 3, 1991, Tokai filed its response to the opposition
memorandum and requested the Court to strike the memorandum as
being untimely.
REQUEST TO STRIKE
We agree with Tokai that the opposition memorandum was
untimely filed and should be stricken. We agree that R.App.Proc.
27(a) and (b) are confusing. R.App.Proc. 27(a) states that a party
may file an opposition within 7 days after service of the motion.
Yet R.App.Proc. 27(b) appears to allow a response to be filed no.
later than 3 days prior to the date of hearing.
Had plaintiff filed its opposition within the time limit of
R.App.Proc. 27(b), we would not strike the opposition. However, as
noted by Tokai, the opposition is untimely under either rule. The
motion to dismiss was filed on March 19, and the hearing was set
for April 4. Under R.App.Proc. 27(b), plaintiff's last day to file
its opposition was April 1. It filed on April 2.
We are gravely concerned with plaintiff's counsel's failure to
83
strictly com ply with our rules. Counsel has been previously warned
to comply with our rul es. � Cabrera v .. Heirs of Pilar de Castro,
No. 89-018, s l ip op. at 3, n.J (N.M.I. J u n e 7, 1990).
In addition, the rationale provided by counsel for Antonio
Atalig at the hearinq disturbs this court. counsel first stated
that while it was true tha t he was served with the motion on M�rch
19, the copy it received was unfiled. He did not know whether it
was a draft copy only. Second, the notice of hearing was blank �s
to the date and time of the hearing. His office received the
filled�in n o t ice of hearing on March 22.
We do not understand the statement made by pl aintiff that it
received an unfiled copy of the motion. R.App.Proc. 25(b) is c l ea r
that copies of papers shall be served "at or before tha time of
filing.il (Emphasis added.) We further do not understand why he
should wonder whether the copy is a draft.
Counsel for plaintiff stated that his office did not receive
the filled-in copy of the notice of hearinq until March 22.
However, the Court•s file shows that a copy of the filled-in notice
was placed in his box in the Clerk of Court Office on March 20.
� Com.R.Prac. 6(a), as made applicable by R.App.Proc. l(b). His
office was notified of such copy on the same day. Because his
office decided to p ick up the notice on March 22 instead of March
20 is not a reason to unt imely file a document.
The failure to comply with our rules, plus the lack of a valid
84
reason for the failure, leads this court to conclude that the
opposition memorandum should be stricken.
HOTIOtf 'J'OnD:X§MIS§
Tokai's motion to dismiss is based on a certain interpretation
of R.App. Proc. 3 (c). The interp re tat i on it propo u n ds is the
interpretation qiven by the majority in ']?orres v. O(lkJ.ang Sca•{enge;r
�, � u.s. ____ , 1oa s.ct� 2405, 101 L.Ed.2d 285 (1988).
The United States Supreme court in Torre§i held that the
jurisdictional requirement of Fedaral Rule of Appellate Procedure
4/
would be vitiated if courts of appeals were
permitted to exercise jurisdiction over
parties not named in the notice of ap pe a l .
Permitting courts to exercise jurisdiction
over unnamed parties after the time for filing
a notice of appeal has passed is equivalent to
permitting courts to extend the time for
filing a notice of appeal. Because the rules
do not qrant courts the latter power, we hold
R.App.Proo. 3(c) states, in pertinent part, that
The notice of appeal shall specify the party
or parties taking the appeal. � • •
Federal Rule of Appellate Procedure J(c) is exactly the same
as to this part.
2Federal Rule of Appellate Procedure 4(a) (1),
·
in pertinent
part, states that
[T]he notice of appeal required by Rule 3
shall be filed • • within 30 days after the
•
date of entry of j udgment or order appealed
from. • r •
This is exactly the same as our R.App.Proc. 4(a)(l).
85
that the rules likewise withhold the former.
108 s.ct. at 2408.
According to Tokai, the Torres case, plus other later cases
from federal courts of appeal, conclusively settle the issue in
federal courts as to the proper interpretation of Federal Rule of
Appellate Procedure J (c). Because such rule is the same as our
rule, we should adopt the interpretatil)n of the United States
Supreme Court in Torres.
Although we have stated in previous decisions that
interpretations by federal courts of federal rules similar to ours
would be helpful, we have never stated that they are binding on us.
See In the Adoption of Amanda c. Magofna, No. 90-012 (N .M. I.
December 5, 1990); Tudela v. Marianas Public Land Corporation, No.
90-011 (N.M.I. June 7, 1990); Tenorio v. Superior Court, No. 89-002
(N.M.I. March 19, 1990). Counsel for Tokai agreed during oral
argument that such interpretations are not binding on this Court.
In this particular case, we do not agree with the majority in
Tor�es. We are more persuaded with Justice Brennan's dissent in
Torres.
our rules of procedure should never be used as a game of
skill. Justice Brennan, quoting from Foman v. Davis� 371 u.s. 178,
181-182, 83 s.ct. 227, 229-230, 9 L.Ed.2d 222 (1962), stated that
the rules "'reject the approach that pleading is a game of skill in
which one misstep by counsel may be decisive to the outcome and
accept the principle that the purpose of pleading is to facilitate
86
a proper decision on the merits.'" 108 s.ct. at 2410.
Justice Brennan cited to Federal Rules of Appellate Procedure
3
2, and the last sentence of J(c)4 in support of his position. We
adopt such reasoning. In addition, R.App.Proc. J(a) also supports
our interpretation o f R.App.Proc. J(c). R.App.Proc. J(a) states,
in the last sentence, that 11[f]ailure of an appellant to take any
step other than the timely filing of a notice o f appeal does not
affect the validity of the appeal, but is ground only for such
action as this Court deems appropriate, which may include dismissal
o f the appeal. 11
We do not hold that there never can be a dismissal for failure
to state the party or parties appealing. We do hold that there
should not be an automatic dismissal due to such technical failure.
If the name of a party is omitted from the notice of appeal, there
has to be a determination made first as to whether the omission was
intended or not. If it was not intended, and good cause can be
3Federal Rule of Appellate Procedure 2 is substantially the
same as our R.App.Proc. 2. Our R.App.Proc. 2 provides that
In the interest o f justice, or to expedite
a decision, or for other good cause shown,
this Court may suspend the requirements or
provisions of any of these rules in a
particular case, on application of a party or
on its own motion, and may order proceedings ·
in accordance with its direction.
4The last sentence o f Federal Rule of Civil Procedure J(c) is
exactly the same as our R.App.Proc. 3 (c). It reads, "An appeal
shall not be dismissed for informality of form or title of the
notice of appeal.
87
shown for th• ·omission, or that there is no p re j ud i c::e to the
appellee (s) , then the omitted party should be included �n the
appeal.
In this particular case, we are convinced that the omission
was not intended. It was clear since the date of tlle filing of the
notice of appeal that Antonio A tal ig was the appellant. The notice
of appeal specifically states that the appeal is from the orders of
the trial court, dated November 9, 1990, and Oecember 19, 1990,
Both of these orders mention on ly Antonio Atalig. The November 9,
1990, order specifically stated that the sanctions are only as to
Antonio Ataliq. In addition, when the notice of appeal was filed
on January 18, 1991, a stay of execution was also sought. The
application tor a stay also noted that the stay was for the orders
of November 9,1990, anc:l December 19, 1990. These documents put the
trial court and opposinC� parties on notice that it wae; Antonio
Ataliq that was appealing the sanctions orders.
To be sure, Antonio AtaliCJ $houlci have put his name in the
notice of appeal as the appellant. He, again, faile� to strictly
comply with our rules. However, in view of the fact that Tokai
knew as of the c:late it received a copy of the notice of appeal and
application for stay who the real appellant was, it would be an
injustice to dismiss the appeal� There is no prejudi c e to Tokai.
All of the above leade; this Court to deny Tokai's motion to
dismiss,
88
We warn appellant and his counsel, however, to ensure
compliance with our Rules of Appellate Procedure. 5 We note that
the excerpt of the record was untimely filed. See R. App. Proc. 30.
We further note that appellant has failed to include in his brief
a statement of related cases, as required by R. App. Proc. 28{p).
Additionally, appellant's statement of jurisdiction is erroneous.
The Superior Court's jurisdiction is basad on 1 CMC § 3202, not §
3102(b). The statutory basis for this Court's jurisdiction is 1
CHC § 3102(a), not § 3302. Finally, ".ve note that R. App.Prcc.
JO(b) (3) requires inclusion in the excerpt the final complaint ar.J
answer for purposes of determining what the issues were in the
trial court. Appellant has not done this. This should have been
done, not for the reason of determining the issues in the trial
court, but for the reason that the trial court imposed sanctions on
its conclusion that the �omplaint was frivolous, legally
unreasonable, and without tactual foundation. Appellant's brief
argues against the trial court's conclusion. It would be quite
helpful to this Court in arriving at. its decision to hav':'! and
review the complaint that is at issue in this appeal.
CONCLUSION
1. Tokai's request to strike appellant's opposition
memorandum is GRANTED.
5As noted earlier, this is the second time that counsel will
have been warned to comply with our rules. See page 3, supra.
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2. Tokai•s motion to dismiss the appeal is DENIED.
/ }A ,__
Dated at Saipan, MP this /f.9 day of April 1991.
I� L.�L�
Jose s. Dela cruz
Chief Justice
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