Kubo v Ezra [2008] FMCSC 9; 16 FSM Intrm. 88 (Chk. S. Ct. Tr. 2008) (3 September 2008)

CHUUK STATE SUPREME COURT TRIAL DIVISION

CSSC-CA. NO. 14-2008

TOSIKO KUBO, MARTINA HARTMAN, and JULIANA HARTMAN,
Plaintiffs,

vs.

ISIWY EZRA,
Defendant.

_________________________________________

ORDER

Camillo Noket
Chief Justice

Decided: September 3, 2008

APPEARANCES:

For the Plaintiffs: George Hauk
P.O. Box 1405
Weno, Chuuk FM 96942

For the Defendant: Hans Wiliander
P.O. Box 389
Weno, Chuuk FM 96942

For the Would-be Intervenors: Hans Wiliander
P.O. Box 389
Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure  Intervention; Civil Procedure  Service
Like other motions in a pending action, a motion to intervene must be served according to the requirements of Rule 5. Additionally, Chuuk State Supreme Court GCO No. 01-06 requires that a certificate of service be filed with the motion. If and when the court grants a motion to intervene, then service of process of the intervener's complaint is performed according to the requirements of Rule 4. Kubo v. Ezra, [2008] FMCSC 9; 16 FSM Intrm. 88, 90 (Chk. S. Ct. Tr. 2008).

Civil Procedure  Intervention
A motion to intervene must state the grounds for intervention and be accompanied by a proposed pleading setting forth the claim or defense for which intervention is sought. Kubo v. Ezra, [2008] FMCSC 9; 16 FSM Intrm. 88, 90 (Chk. S. Ct. Tr. 2008).

Civil Procedure  Intervention
Rule 10(a) requires the designation of the parties in a caption. As a matter of good practice, mischaracterizations of the parties to an action should be avoided. The proposed interveners' caption to their motion, should not mischaracterize themselves as parties when they have not yet been permitted to intervene. Kubo v. Ezra, [2008] FMCSC 9; 16 FSM Intrm. 88, 90 (Chk. S. Ct. Tr. 2008).

Civil Procedure  Intervention; Civil Procedure  Pleadings
A proposed pleading must set forth claims in numbered paragraphs the contents of which shall be limited as far as practicable to a statement of a single set of circumstances, as required by Civil Rule 10(b); otherwise the pleading's averments will be "vague" and "ambiguous" and not sufficiently "simple, concise, and direct" to reasonably require a responsive pleading. Although no technical form of pleadings is required, the complaint must have a caption. Kubo v. Ezra, [2008] FMCSC 9; 16 FSM Intrm. 88, 90-91 (Chk. S. Ct. Tr. 2008).

Civil Procedure  Intervention
When, in the form submitted, the would-be interveners' proposed complaint is too vague and ambiguous for defendants to reasonably frame a responsive pleading, the court will treat the combined motion and pleading as a motion to intervene only and conclude that the motion to intervene is deficient because it was not filed with an attached proposed pleading. Kubo v. Ezra, [2008] FMCSC 9; 16 FSM Intrm. 88, 91 (Chk. S. Ct. Tr. 2008).

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COURT'S OPINION

CAMILLO NOKET, Chief Justice:

BACKGROUND

1. On February 21, 2008, plaintiffs filed their complaint to quiet title.

2. On March 5, 2008, defendant filed his answer and affirmative defenses.

3. On April 4, 2008, plaintiffs filed their motion to amend complaint.

4. On June 9, 2008, Sachko Tatasy Williancer, individually and on behalf of her children and brothers and sisters, filed a self-entitled "motion to intervene and intervenor's complaint.

5. There was no proof of service filed with the motion although a summons was apparently requested and was issued for the proposed complaint.

6. On June 26, 2008, plaintiffs responded to the motion with a self-entitled "motion to strike" opposing the proposed intervener's motion to intervene.

ANALYSIS

In their June 26, 2008 "motion to strike," plaintiffs assert that the proposed interveners' combined motion to intervene and proposed complaint are deficient in a number of respects. First, plaintiffs contend that service of the motion to intervene was improper because proposed interveners sought service of process under Civil Rule 4 when service was required to be performed under Rule 5.

The court agrees. A motion to intervene must be served, like other motions in a pending action, according to the requirements of Rule 5. Id. Additionally, Chuuk State Supreme Court GCO No. 01-06 requires that a certificate of service be filed with the motion. If and when the court grants a motion to intervene, then service of process of the intervener's complaint is performed according to the requirements of Rule 4. In this case, proposed interveners apparently sought to serve process according to Civil Rule 4. As a result, the proposed interveners did not file a proof of service with their motion as required by Civil Rule 5(c) and GCO No. 01-06, and service was not otherwise in accordance with the requirements of Rule 5.

Plaintiffs' second contention is that the combined motion and proposed pleading are deficient on their face. A motion to intervene must state the grounds for intervention and be accompanied by a proposed pleading setting forth the claim or defense for which intervention is sought. Chk. Civ. R. 24(c). The court agrees with plaintiffs' general contention that proposed interveners' failed to comply with the requirements of Rule 24(c), with the caveat that the court will consider the issue under Rule 12(e), as a request for a more definite statement, rather than as a motion to strike pursuant to Rule 12(f).

First, Rule 10(a) requires the designation of the parties in a caption. As a matter of good practice, mischaracterizations of the parties to an action should be avoided. In the proposed interveners' caption to their motion, they mischaracterize themselves as parties when they have not yet been permitted to intervene. Second, the proposed interveners do not in their proposed pleading set forth claims in numbered paragraphs "the contents of which shall be limited as far as practicable to a statement of a single set of circumstances" as required by Civil Rule 10(b). As a result, the averments of the pleading are "vague" and "ambiguous" (see Rule 12(e)) and not sufficiently "simple, concise, and direct" (see Rule 8(e)(1)) to reasonably require a responsive pleading. Finally, although no technical form of pleadings is required, the complaint is required to have a caption. Chk. Civ. R. 10(a). Although proposed interveners no doubt intended that the caption for their motion would also serve as the caption for their proposed complaint, the better practice would have been to properly caption the motion to intervene and then set forth the complaint in a separately captioned document, which may appropriately indicate the addition of the interveners as parties. (Upon granting of the motion to intervene, it is then proper to serve process of the pleading under Rule 4.)

In the form submitted, interveners' proposed complaint is too vague and ambiguous for defendants to reasonably frame a responsive pleading. Indeed, the court will treat the combined motion and pleading rather as a motion to intervene only and concludes that the motion to intervene is deficient because it was not filed with an attached proposed pleading. Chk. Civ. R. 24(c).

Finally, plaintiffs filed a motion to amend their complaint on April 4, 2008. The request for amendment appears to be the result of a need to correct clerical or typographical oversight.

CONCLUSION

The court therefore orders proposed interveners to refile and serve their motion to intervene so that it complies with Rule 24(c), including an attached pleading that complies with the pleading rules. If a certificate of service is not filed within ten (10) days of service of this order, the proposed interveners' motion for intervention is denied without prejudice and without further order of the court.

The deadline for filing a response to plaintiffs' motion to amend their complaint is hereby set to ten (10) days from service of this order. If there is no opposition, that motion is granted without further order of the court.

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