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THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA
Cite as Lonno v. Trust Territory (III), 1 FSM Intrm. 279
TRIAL DIVISION-STATE OF KOSRAE

[1 FSM Intrm. 279]

LONNO LONNO,
Plaintiff,

vs.

TRUST TERRITORY OF THE
PACIFIC ISLANDS,
Defendant.

CIVIL ACTION NO. 1981-2001

DENIAL OF MOTION FOR DEFAULT
JUDGMENT AND FOR JUDGMENT ON
THE PLEADINGS

Before the Honorable Edward C. King
Chief Justice
Ponape, Caroline Islands 96941
April 18, 1983

APPEARANCES:
     For the Plaintiff:        Albert Snyder
                                        Directing Attorney
                                        MLSC Kosrae
                                        P.O. Box 38
                                        Lelu, Kosrae E.C.I 96944

     For the Defendant:   Andrew G. Wilson, II
                                        Assistant Attorney General
                                        Office of the Attorney General
                                        Trust Territory of the Pacific Is.
                                        Saipan, CM 96950

[1 FSM Intrm. 280]

     Plaintiff in this action based upon alleged violation of his rights as a seaman in the Trust Territory Maritime Service moves for a default judgment or, in the alternative, for a holding that because of failure to file an answer in timely fashion, the Trust Territory should be barred from asserting the statute of limitations as a defense.

     That motion is based upon the Trust Territory's failure to file an answer within the time prescribed by FSM Civ. R. 12(a) following the Court's denial of defendant's motion to dismiss.  See Lonno v. Trust Territory (I), 1 FSM Intrm. 53 (Kos. 1982).

[1 FSM Intrm. 281]

     The Trust Territory filed its answer on April 27, 1982.  Denial of the motion to dismiss on January 28, 1982 was followed almost instantaneously by the Trust Territory's effort to obtain an immediate appeal from this Court's decision.  On March 4, 1982 an order of this Court's Appellate Division was entered denying the Trust Territory's request for immediate review of this Court's decision on the question of jurisdiction.

     The case has presented issues of first impression and  the Trust Territory has at all times actively opposed Mr. Lonno's claim before this Court.  Courts generally disfavor default judgments and readily set them aside rather than deprive a party of the opportunity to contest a claim on the merits.  See Cound, Friedenthal & Miller, Civil Procedure888 (3rd ed. 1980).  This Court subscribes to that view. The Trust Territory's answer has been filed.  Default judgment now, or denial to defendant of the right to assert the statute of limitations defense, by way of punishment for tardiness, would be inappropriate, especially as against this notably vigorous defendant.

     For its part, the Trust Territory has moved to dismiss Mr. Lonno's claim on the ground that the complaint reveals that the claim arose several years before the complaint was filed, on September 28, 1981, and is therefore barred by the one-year statute of limitations on claims arising out of the shipping articles.  See 19 F.S.M.C. 403(1)(a).

[1 FSM Intrm. 282]

     Mr. Lonno counters with a contention that the running of the statute of limitations has been tolled, or the Trust Territory should be estopped from asserting that defense, because of actions and inactions of the Trust Territory in response to plaintiff's attempts to assert his claims.1

     It is apparent that there remain significant issues of fact which may affect defendant's statute of limitations defense.  The motion to dismiss must therefore be denied, although this is without prejudice to further consideration of the limitations defense after completion of the trial.
 
Conclusion
     The plaintiff's motion for default judgment and defendant's motions to dismiss and for judgment on the pleadings are denied.

     A final pre-trial hearing will be held in this case in the Kosrae Courthouse on Tuesday, June 7, 1983 at 9 a.m. followed by trial on Wednesday, June 8, 1983 at 9 a.m.

     So ordered this 18th day of April, 1983.
 /s/ Edward C. King
Chief Justice
Supreme Court of the Federated
States of Micronesia

[1 FSM Intrm. 283]

Entered this 18th day of April, 1983.
 /s/ Emiliana J. Kihleng
Chief Clerk of Court
 

Footnote:

1. Plaintiff makes other more sweeping contentions, for example, that the Trust Territory's status as a trustee of the people of Micronesia precludes the Trust Territory ever from asserting a statute of limitations defense against persons governed under the trusteeship.  Ruling on those other contentions is deferred as possibly unnecessary in this case, depending on the proofs adduced at trial.