
    ULUFALEILUPE SAFUE, Appellant, v. UIAGALELEI IONA, Appellee.
    High Court of American Samoa Appellate Division
    AP No. 25-98
    June 24, 1999
    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
    
      
      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.
    
   ORDER DENYING APPELLEE’S MOTION TO DISMISS APPEAL

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

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).

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.

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.

It is so ordered.  