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. 89 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 /�� /'. I � "/ j G---Puj;z�� I .� /i_/;t:u:. / ,j: J�sus c. Borja �ssociate Justice I 90