Salik v U Corporation (II) [1988] FMSC 24; 3 FSM Intrm. 408 (Pon. 1988) (1 July 1988)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION (Pon.)
Cite as Salik v. U Corporation (II ), [1988] FMSC 24; 3 FSM Intrm. 408 (Pon. 1988)

[1988] FMSC 24; [3 FSM Intrm. 408]

GREGORIO SALIK,
Plaintiff,

v.

U CORPORATION,
Defendant.

CIV. ACTION NO. 1987-077

MEMORANDUM DECISION

Before Edward C. King
Chief Justice
July 1, 1988

APPEARANCES:

For the Plaintiff:
Sungiwo Hadley
Trial Counselor
P.O. Box 369
Kolonia, Pohnpei 96941

For the Defendant:
Douglas F. Cushnie
Attorney at Law
Saipan, Mariana Islands 96950

and

Martin Mix
Attorney-at-Law
P.O. Box 143
Kolonia, Pohnpei 96941

For the Third Party Defendant (State of Pohnpei):
Randy Boyer
State Attorney
Kolonia, Pohnpei 96941

[3 FSM Intrm. 409]

* * * *

HEADNOTES

Civil Procedure - Parties
When more than two years had elapsed in pending litigation before filing of a motion for leave to file third party complaint under FSM Civ. R. 14(a), when a pre-trial order closing discovery had been filed and the existing parties had declared themselves ready for trial, when filing of the complaint would introduce new issues, when no reason for delay in filing the motion has been given, and when the opposing party reasonably objects on grounds that the delay will prejudice that party's rights, the motion to file third party complaint should be denied. Salik v. U Corp. (II), [1988] FMSC 24; 3 FSM Intrm. 408, 410 (Pon. 1988).

Civil Procedure - Parties
A motion for joinder under FSM Civ. R. 19 will be denied where it appears that complete relief between the existing parties could be granted without the joinder and where there is no showing that the party sought to be joined claims an interest relating to the subject of the action. Salik v. U Corp. (II), [1988] FMSC 24; 3 FSM Intrm. 408, 410 (Pon. 1988).

* * * *

COURT'S OPINION

EDWARD C. KING, Chief Justice:

Defendant U Corporation has moved for leave to file a third party complaint against the national government of the Federated States of Micronesia under FSM Civ. R. 14(a) or to require joinder under FSM Civ. R. 19.

I

Rule 14(a) of the Rules of Civil Procedure states that a person who "may be liable" to a defendant for "all or part of the plaintiff's claim" against the defendant may be made a third-party defendant.

As indicated in the court's opinion granting the state's motion for summary judgment in this case, if Mr. Salik prevails against U Corporation and if it is established that U Corporation would therefore have a claim against the Trust Territory, U Corporation could plausibly invoke the Constitution as establishing liability of the national government. FSM Const. art. XV, § 2.

Thus, it would be legally permissible to grant the motion to implead the national government pursuant to Rule 14(a).

Under most circumstances, such motions should be granted freely. Nonetheless, granting of the motions lies within the discretion of the Court. 6 C. Wright & A. Miller, Federal Practice and Procedure §§ 1443 and 1454

[3 FSM Intrm. 410]

(1971); General Electric Co. v. Irvin, [1960] USCA6 7; 274 F.2d 175 (6th Cir. 1960).

Here, more than two years had elapsed before the motion was filed. A pre-trial order had been issued closing discovery and the present parties have said they are ready for trial.

To add a new party at this point would necessarily delay proceedings further and would introduce new issues pertaining to the liability of the Trust Territory and the FSM national government. Mr. Salik maintains this would cause him loss and prejudice and the Court agrees. The defendant has offered no reason for waiting two years to bring this motion, which should have been brought at the very outset of the case.

The motion to implead the FSM national government under FSM Civ. R. 14 is therefore denied.

II

Defendant's motion for joinder under FSM Civ. R. 19 will also be denied since the requirements of neither Rule 19(a)(1) nor of 19(a)(2) are met here.

Complete relief could be provided as to the existing claims between the parties without adding the national government. Mr. Salik asserts claims only against U and the relief he seeks could be provided without joinder. U asserts no claim against Mr. Salik. Thus, the FSM Civ. R. 19(a)(1) requirement that the party to be joined be necessary so that "complete relief" may be "accorded among those already parties" is not met.

Similarly, there is no showing pursuant to Rule 19(a)(2) that the national government claims an interest relating to the subject of the action. Whether U will be held liable to Mr. Salik for its use of the "thin wedge" of land presumably will be determined on the basis of contract and property law principles. It is difficult to discern how the national government could claim an interest in those subjects. If U ultimately is held liable because the 1972 survey was faulty, the question of whether this leads to national government liability will be resolved on the basis of law and facts pertaining to governmental liability for negligence in preparation of surveys. Mr. Salik professes no interest whatever in those issues which are not relevant to his claims against U.

III

The motion of U Corporation to add the FSM national government as a party to this case is denied.