ULUFALEILUPE SAFUE, Appellant,

 

v.

 

UIAGALELEI IONA, Appellee.

 

High Court of American Samoa

Appellate Division

 

AP No. 25-98

 

June 24, 1999

 

 

[1] A violation of the timing requirements of A.C.R. 31(a) does not result in mandatory dismissal of the appeal; dismissal is discretionary with the Appellate Division, which may consider the circumstances related to the untimely filing, and any prejudice resulting to the Appellees.

 

[2] When delay is not the result of negligence on the part of Appellant’s counsel or his client, and package was misplaced, not simply delayed in normal course of mailing from a remote location, outright dismissal of the litigant’s claims would be unduly harsh.

                                     

[3] Although Appellee had ample time to respond to the untimely-filed Appellant’s brief, but did not do so, and the merits of the appeal could not be considered, the client will not be significantly prejudiced by holding the case over to the next appellate session.

 

Before GOODWIN*, Acting Associate Justice, MUNSON**, Acting Associate Justice, AFUOLA, Associate Judge, TAUANU’U, Temporary Associate Judge.

 

Counsel:      For Appellant, Gata E. Gurr

 For Appellee, Katopau T. Ainu’u

 

ORDER DENYING APPELLEE’S MOTION TO DISMISS APPEAL [3ASR3d23]

Procedural History

 

On May 25, 1999, Appellee Uiagalelei Iona filed a Motion to Dismiss this appeal, on the ground that Appellant Ulufaleilupe Safue failed to file his opening brief within forty (40) days of the filing of the record as required by A.C.R. 31(a).  Appellant filed his Opposition to Motion to Dismiss on June 21, 1999, explaining that the local post office had misplaced the brief and that, upon learning of the delay, he took immediate action to file and serve the brief as quickly as possible.  The result of these circumstances was that Appellant’s brief was filed forty-eight (48) days after the filing of the record, or eight days late.  Oral argument was heard on the motion on June 24, 1999, with counsel present for both parties.

 

Discussion

 

[1] Under the law of American Samoa, a violation of the timing requirements of A.C.R. 31(a) does not result in mandatory dismissal of the appeal; rather, dismissal is subject to the discretion of the Appellate Division, which may consider such factors as the circumstances related to the untimely filing, as well as any prejudice which may result to Appellees therefrom.  Alaimalo v. Sivia, 17 A.S.R.2d 25 (Appellate Div. 1990); Opapo v. Puailoa, 17 A.S.R.2d 30 (Appellate Div. 1990); Alaimalo v. Sivia, 16 A.S.R.2d 117 (Appellate Div. 1990).

 

[2] At oral argument, counsel for Appellant—an officer of the court— averred that the delay in filing was not the result of his own negligence or that of his client.  Although we agree that counsel should always consider the possibility of delays when mailing to a remote destination such as American Samoa, in this case the package was actually misplaced, not simply delayed in the normal course of events.  Under these circumstances, it would seem unduly harsh to penalize a litigant with outright dismissal of his claims.

 

[3] Moreover, we note that Appellee had ample time in which to file his response brief, even after Appellant’s brief was untimely filed.  Because he chose not to take this simple step, which would have allowed this panel to consider the merits of the appeal in the event his motion to dismiss was denied, we conclude that his client will not be significantly prejudiced by holding this case over to the next appellate session for a full adjudication on the merits.

 

ORDER

 

For the foregoing reasons, Appellee’s motion to dismiss the appeal is hereby denied.  Appellee’s response brief shall be due thirty (30) days from the date of this order. [3ASR3d24]

 

It is so Ordered.

 

**********

 


*  Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

**  Honorable Alex R. Munson, Chief Judge, United States District Court for the Commonwealth of the Northern Marianas Islands, serving by designation of the Secretary of the Interior.