Federated States of Micronesia Development Bank v Arthur [2001] FMSC 18; 10 FSM Intrm. 293 (Pon. 2001) (5 July 2001)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as FSM Dev. Bank v. Arthur,
[2001] FMSC 18; 10 FSM Intrm. 293 (Pon. 2001)

[2001] FMSC 18; [10 FSM Intrm. 293]

FSM DEVELOPMENT BANK,
Plaintiff,

vs.

ROBERT C. ARTHUR, PATRICIA ARTHUR,
BETHWEL HENRY, and MARIHNE HENRY,
Defendants.

CIVIL ACTION NO. 2001-007

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: July 5, 2001

APPEARANCES:

For the Plaintiff:
James Woodruff, Esq.
Legal Counsel
P.O. Box M
Kolonia, Pohnpei FM 96941

For the Defendants:
Douglas F. Cushnie, Esq.
P.O. Box 949
Saipan, Northern Marianas MP 96950

* * * *

HEADNOTES

Civil Procedure ; Summary Judgment
A summary judgment motion filed with the complaint is premature because a party seeking to recover upon a claim may only move for summary judgment after the expiration of 20 days from the action's commencement. FSM Dev. Bank v. Arthur, [2001] FMSC 18; 10 FSM Intrm. 293, 294 (Pon. 2001).

Civil Procedure ; Summary Judgment
When a plaintiff seeks summary judgment on the question of liability, it must initiate the inquiry even as to affirmative defenses. FSM Dev. Bank v. Arthur, [2001] FMSC 18; 10 FSM Intrm. 293, 294 (Pon. 2001).

Civil Procedure ; Summary Judgment
When the opposing party does not respond to a motion for summary judgment, the court must still ascertain that the basis for the motion is well grounded both in fact and law. To make this determination the court requires at least some quantum of factual material competent under Rule 56(c) on the question of the affirmative defenses or the motion will be denied. FSM Dev. Bank v. Arthur, [2001] FMSC 18; 10 FSM Intrm. 293, 294 (Pon. 2001).

[10 FSM Intrm. 294]

Civil Procedure ; Consolidation
The moving party bears the burden of persuading the court that consolidation is appropriate, and the court has broad discretion in determining whether to consolidate cases. FSM Dev. Bank v. Arthur, [2001] FMSC 18; 10 FSM Intrm. 293, 295 (Pon. 2001).

Civil Procedure ; Consolidation
A motion to consolidate two cases will be denied when little if any commonality of fact or law questions is evident from the face of the complaints in the two cases and when the motion's general allegations fail to identify a specific common question of law or fact which would make consolidation appropriate. FSM Dev. Bank v. Arthur, [2001] FMSC 18; 10 FSM Intrm. 293, 295 (Pon. 2001).

* * * *

COURT'S OPINION

MARTIN YINUG, Associate Justice:

The court has before it the motion for summary judgment filed on May 1, 2001, by plaintiff FSM Development Bank ("the Bank") and the defendants' motion to consolidate filed on May 3, 2001. For the reasons that follow, the Bank's motion for summary judgment is denied without prejudice. The motion to consolidate is denied.

a. The Bank's motion for summary judgment

The Bank's motion is a refiling of its motion for summary judgment which was originally filed with the complaint on March 12, 2001. Rule 56 of the FSM Rules of Civil Procedure provides that "[a] party seeking to recover upon a claim . . . may,ny titer fter the expe expiration of 20 days from the commencement of the action" move for summary judgment. On March 26, 2001, efendfiled a response to the summary judgment motion in which they correctly pointed oted out thut that the motion was premature. On April 3, 2001, the Bank withdrew its motion and indicated it would refile it later, which it did on May 1, 2001. The defendants did not respond to the second motion.

Defendants raise various defenses to the Bank's claim in their answer filed May 3, 2001. "[W]hen the plaintiff seeks summary judgment on the question of liability, the plaintiff must initiate the inquiry even as to affirmative defenses." FSM Dev. Bank v. Rodriguez Corp., [1985] FMSC 2; 2 FSM Intrm. 128, 130 (Pon. 1985). The Bank does not address the issue of the defenses in its motion. Where, as here, the opposing party does not respond to a motion for summary judgment, the court must still ascertain that the basis for the motion is well grounded both in fact and law. Kyowa Shipping Co. v. Wade, [1995] FMSC 15; 7 FSM Intrm. 93, 95 (Pon. 1995). To make this determination the court requires at least some quantum of factual material competent under Rule 56(c) of the FSM Rules of Civil Procedure on the question of the affirmative defenses. Accordingly, the motion is denied without prejudice. If the motion is renewed in conformance with this order, and the defendants again fail to respond, they may be deemed to have consented to the granting of the motion under Rule 6(d) of the FSM Rules of Civil Procedure. Id.

b. The defendants' motion to consolidate

Defendants move under Rule 42(a) of the FSM Rules of Civil Procedure to consolidate this case with Civil Action 1999-053, AHPW, Inc. v. FSM and State of Pohnpei. Defendants urge that there is a common question of fact in both cases and that judicial economy will thereby be served. They contend that they are the owners of the plaintiff corporation in Civil Action No. 1999-053; and that the alleged conduct of the defendants in that case rendered them unable to make the payments on the

[10 FSM Intrm. 295]

promissory note upon which the Bank is suing them in this case. Defendants also allege in their answer in this case that the Bank "permitted or encouraged" the State of Pohnpei and the Federated States of Micronesia to destroy their businesses in which the proceeds of the promissory note were utilized.

The moving party bears the burden of persuading the court that consolidation is appropriate. Etscheit v. Mix, [1993] FMSC 39; 6 FSM Intrm. 248, 250 (Pon. 1993). The court has broad discretion in determining whether or not to consolidate cases. Johnson v. Celotex Corp., [1990] USCA2 234; 899 F.2d 1281, 1284-85 (2d Cir. 1990). The complaint in the instant case alleges that defendants defaulted on a promissory note. The complaint in the Civil Action No. 1999-053 alleges that the FSM and Pohnpei engaged in certain activities, including activities proscribed by the FSM Constitution, the Pohnpei Constitution, and national and state statutes, which resulted in the destruction of the trochus shell button and pepper processing businesses of the plaintiff in Civil Action No. 1999-053. Little if any commonality of fact or law questions is evident from the face of the complaints in the two cases.

The defendants in the case at bar make general allegations that the Bank's conduct resulted in their failure to repay the note, and that they also "permitted or encouraged" the detrimental conduct alleged on the part of the defendants FSM and state of Pohnpei in Civil Action No. 1999-053, the complaint in which contains a single reference to the FSM Development Bank. But these general allegations fail to identify a specific "common question of law or fact" which would make consolidation under Rule 42(a) of the FSM Rules of Civil Procedure appropriate. See, e.g., Celotex, 899 F.2d at 1285 (consolidation of two asbestos exposure cases not an abuse of discretion where cases involved common work site and both workers were exposed as bystanders); Chatham Condominium Ass'ns v. Century Village, Inc., [1979] USCA5 990; 597 F.2d 1002, 1013-14 (5th Cir. 1979) (district court's consolidation of four treble damages antitrust actions involving identical issues of law and fact upheld absent showing of prejudice); Mutual First, Inc. v. O'Charleys of Gulfport, Inc., 721 F. Supp. 281, 283-84 (S.D. Ala. 1989) (consolidating two cases involving alleged breach of same commercial lease agreement); Tower Cranes of Am. v. Public Serv. Co. of N.H., 702 F. Supp. 371, 376-77 (D.N.H. 1988) (consolidating breach of contract suits arising out of same contract against bankrupt principal and potential undisclosed agents); Zicklin v. Breuer, 534 F. Supp. 745, 748-49 (S.D.N.Y. 1982) (consolidating six actions charging securities violations where all were based in major part on false statements made in company's prospectus).

The motion to consolidate is therefore denied.

* * * *