Pacific Agri-Products Inc v Kolonia Consumer Cooperative Association [1995] FMSC 44; 7 FSM Intrm. 291 (Pon. 1995) (3 October 1995)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Pacific Agri-Products Inc v Kolonia Consumer Cooperative Association, [1995] FMSC 44; 7 FSM Intrm. 291 (Pon. 1995)

PACIFIC AGRI-PRODUCTS, INC.,
Plaintiff,

vs.

KOLONIA CONSUMER COOPERATIVE ASSOCIATION and DELSON EHMES,
Defendants.

CIVIL ACTION NO. 1995-084

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: October 3, 1995

APPEARANCES:

For the Plaintiff:
Ron Moroni, Esq.
P.O. Box 1618
Kolonia, Pohnpei FM 96941

For the Defendants:
Joses Gallen, Esq.
P.O. Box 255
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Deposition
Leave of court is required to depose a party within 30 days of service of summons and complaint on that party. Pacific Agri-Products, Inc. v. Kolonia Consumer Coop. Ass'n, [1995] FMSC 44; 7 FSM Intrm. 291, 292 (Pon. 1995).

Civil Procedure - Pleadings; Torts - Fraud
When pleading fraud the pleader must state the time, place, and content of the false misrepresentation, the fact misrepresented and what was obtained as a consequence of the fraud. Pacific Agri-Products, Inc. v. Kolonia Consumer Coop. Ass'n, [1995] FMSC 44; 7 FSM Intrm. 291, 293 (Pon. 1995).

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COURT'S OPINION

MARTIN YINUG, Associate Justice:

Pending are a number of motions that raise various pleading and discovery issues. As of October 2, 1995, the parties have filed seven separate motions and four oppositions to motions, all before either defendant has filed an answer. Since counsel appear unwilling to work out their differences, the court assumes the task of mediation. As to the motions filed on October 2, and before any further papers are filed, counsel are directed to read carefully the FSM Rules of Civil Procedure, particularly Rule 14, third-party practice, Rules 26 and 37, discovery and discovery sanctions, Rule 30, depositions, and Rule 45, subpoenas.

Analysis of Motions on Discovery and Pleading

A. Deposition of Delson Ehmes

Plaintiffs first Notice of Deposition of Delson Ehmes was served on August 17, noticing the deposition for August 29, 1995. Mr. Ehmes moved, on August 28, to continue the deposition citing a conflict of interest, then on August 29, for an expedited hearing on his motion to continue. Then, plaintiff renoticed the deposition for September 14, by notice dated August 31.

Mr. Ehmes was not made a party to the suit until he was named in the Amended Complaint, filed August 17. FSM Rule of Civil Procedure 30(a) requires leave of court to depose a party within thirty days of the service of the summons and complaint on that party. The plaintiff did not seek leave of court. Since Mr. Ehmes was not served with the summons and complaint, as a party, distinct from being counsel for another party, until six days (because it was mailed) after the Amended Complaint was filed, the earliest date on which the plaintiff could depose Mr. Ehmes, without leave of court, was September 22.

Both of Plaintiff's Notices of Deposition of Delson Ehmes are therefore vacated without prejudice, because plaintiff requested deposition within thirty days of Mr. Ehmes's first notice of the suit as a party. Both of Mr. Ehmes's motions on the subject of his deposition are dismissed as unnecessary.

B. Motions to Enlarge Time to Answer Amended Complaint and for a More Particular Statement

KCCA and Ehmes moved on August 28, 1995, to enlarge time to answer the Amended Complaint. Defendants cited as grounds the conflict of interest, as Ehmes was then both the lawyer for KCCA and a party defendant. In the interim, the defendants retained new counsel to defend KCCA and Mr. Ehmes. Accordingly, the court does not rule on the asserted conflict of interest. The motion to substitute Joses Gallen as counsel of record is granted.

Defendants filed a motion for a more particular statement on September 7, within the time to answer the Amended Complaint. Defendants argue, citing only Rule 9(b), that the allegations of fraud in the Amended Complaint are not particular enough to answer. Rule 9(b) provides: "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally." On stipulation, plaintiff filed its opposition to the motion for a more particular statement one day late. Plaintiff argued that its allegations of fraud were made with sufficient particularity.

Neither party has referred to the court a reported FSM decision interpreting Rule 9(b). Accordingly, it is appropriate to look to U.S. authorities interpreting the U.S. rule from which the FSM rule is derived. FSM v. Ponape Builder's Constr. Inc., 2 FSM Intrm. 48, 52 (Pon. 1985). Plaintiff invoked this court's diversity jurisdiction. Thus, the elements of fraud, those circumstances required to be pleaded with particularity under Rule 9(b), are determined by Pohnpei state law. See 2A James W. Moore et al., Moore's Federal Practice 9.03, at 1924 (2d ed. 1981).

Neither party has cited the law of Pohnpei regarding the elements of fraud. However, Moore does provide some general guidelines for pleading fraud. "[T]he pleader must state the time, place and content of the false misrepresentation, the fact misrepresented and what was obtained or given up as a consequence of the fraud." Id. at 1925-28.

The allegations of fraud are contained in paragraphs 9, 10, 12, 13 and 14 of the Amended Complaint. These paragraphs do provide all the elements outlined by Moore. Plaintiff's allegations would be insufficient only if Pohnpei state law provides additional elements to a claim of fraud.

The court therefore denies defendants' motion for a more particular statement of the allegations of fraud. Defendants are directed to file an answer, or other responsive pleading, to the Amended Complaint within seven days of the service of this Order.

Order

1. Defendants' Motion to Substitute Joses Gallen as their counsel of record is granted.

2. The Plaintiff's notices of deposition of Delson Ehmes are vacated without prejudice.

3. Defendant Ehmes's motion to continue his deposition and for an expedited hearing are dismissed.

4. The defendants' motion for a more particular statement of the allegations of fraud is denied.

5. The defendants' motion to enlarge time to answer the Amended Complaint is granted. Defendants are directed to file an answer, or other responsive pleading, to the Amended Complaint within seven days of service of this Order.

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