Suldan v Mobil Oil Micronesia Inc [2001] FMSC 39; 10 FSM Intrm. 463 (Pon. 2001) (13 November 2001)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Suldan v. Mobil Oil Micronesia, Inc.[2001] FMSC 39; ,
10 FSM Intrm. 463 (Pon. 2001)

[2001] FMSC 39; [10 FSM Intrm. 463]

CURTIS SULDAN, a minor, through his next
friend, ESTA SULDAN,
Plaintiff,

vs.

MOBIL OIL MICRONESIA, INC., MOBIL OIL CORPORATION
and MOBIL OIL GUAM, INC.,
Defendants.

CIVIL ACTION NO. 1999-037

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: November 13, 2001

APPEARANCES:

For the Plaintiff:
Daniel J. Berman, Esq.
P.O. Box 1491
Kolonia, Pohnpei FM 96941

For the Defendants:
Fredrick L. Ramp, Esq.
Law Office of Fredrick L. Ramp
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Consolidation
Cases may be consolidated when they involve a common question of law or fact. The granting

[10 FSM Intrm. 464]

of a motion to consolidate rests with the trial court's broad judicial discretion. Suldan v. Mobil Oil Micronesia, Inc., [2001] FMSC 39; 10 FSM Intrm. 463, 464 (Pon. 2001).

Civil Procedure - Consolidation
When the one common thread in cases sought to be consolidated is that they share similar general principles of tort law since they all involve an alleged defective product that resulted in injuries, but when the cases involve four different accidents (although two of the suits involve kerosene stove accidents, the stoves were not the same) that occurred at different times over the course of approximately a year, in different places, and involved different victims, the level of factual commonality needed for consolidation is of a higher order than is present. Suldan v. Mobil Oil Micronesia, Inc., [2001] FMSC 39; 10 FSM Intrm. 463, 464-65 (Pon. 2001).

Civil Procedure - Consolidation
Cases have been consolidated when they stemmed from a common accident. Suldan v. Mobil Oil Micronesia, Inc., [2001] FMSC 39; 10 FSM Intrm. 463, 465 (Pon. 2001).

Appeal and Certiorari - Stay
A case will not be stayed pending the appeal of another when two different accidents, involving different victims, provide the bases for the two cases. Each case must ultimately rest on its facts. Suldan v. Mobil Oil Micronesia, Inc., [2001] FMSC 39; 10 FSM Intrm. 463, 465 (Pon. 2001).

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COURT'S OPINION

MARTIN YINUG, Associate Justice:

The following motions are disposed of as indicated.

1) Plaintiff's September 3, 2001, motion to bifurcate the trial on the issues of liability and damages. Defendants have filed a concurrence with the motion. The motion is granted.

2) Plaintiff's September 3, 2001, motion to consolidate this case with Civil Action No. 1999-038, George v. Mobil Oil Micronesia, Inc. et al.; Civil Action No. 1999-040, William v. Mobil Oil Micronesia, Inc. et al.; and Civil Action No. 1999-041, Adolip v. Mobil Oil Micronesia, Inc. et al.

Rule 42 of the FSM Rules of Civil Procedure provides in pertinent part that cases may be consolidated where they "involv[e] a common question of law or fact." The granting of a motion to consolidate rests with the trial court's "broad judicial discretion." 8 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 42.10[2][a] (3d ed. 1999). The cases sought to be consolidated here share similar general principles of tort law, since they all involve allegations of a defective product that resulted in injuries. That is the one common d, since the cases involve olve four different accidents that occurred at different times (over the course of approximately a year from November of 1991 to October of 1992) and different places, and involved different victims. While two of the suits involve kerosene stove accidents, the stoves were not the same. In Johnson v. Celotex Corp., [1990] USCA2 234; 899 F.2d 1281 (2d Cir. 1990), the allegedly injurious product was asbestos. The court noted that in determining to consolidate asbestos exposure cases, factors to be considered were "'(1) common worksite; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased: (6) status of discovery in each case; (7) whether all plaintiffs were represented by the same counsel; and (8) type of cancer alleged.'" 899 F.2d at 1285, (citing an unreported decision in In re All Asbestos Cases Pending in the United States District Court for the District of Maryland (D. Md. Dec. 16, 1983)).

[10 FSM Intrm. 465]

While the facts of Celotex are not precisely analogous, the level of factual commonality anticipated by Celotex is of a higher order than that present here. See also In re Repetitive Stress Injury Litig.[1993] USCA2 1242; , 11 F.3d 368, 373-74 (2d Cir. 1993) (different injuries allegedly caused by different office machines did not present sufficient factual or legal commonality to merit consolidation); and King v. General Elec. Co., [1992] USCA7 567; 960 F.2d 617, 626 (7th Cir. 1992) (age discrimination actions involving differing facts, kinds of discrimination, and time periods lacked commonality). To compare, cases have been consolidated where they stemmed from a common accident. In re Air Crash Disaster at Detroit Metro. Airport, 737 F. Supp. 391, 392 (E.D. Mich. 1989).

On balance, the court finds that there is insufficient factual commonality here to consolidate this case with the other three civil actions. The motion to consolidate is therefore denied.

3) Plaintiff's September 3, 2001, motion to amend the complaint. Plaintiff requested leave to amend the complaint to reflect the consolidation of the four cases. Since the motion to consolidate is denied, the motion to amend the complaint is denied as moot.

4) Defendants' September 7, 2001, motion for an enlargement of time until September 22, 2001, to respond to certain discovery. The motion is granted.

5) Plaintiff's September 24, 2001, motion to stay this case pending the appeal in Civil Action No. 1998-005, Lebehn v. Mobil Oil Micronesia, Inc., [2001] FMSC 28; 10 FSM Intrm. 348 (Pon. 2001). Lebehn, like the case at bar, involves allegations of personal injuries resulting from a defective product. But two different accidents, involving different victims, provide the bases for the two cases. Lebehn ultimately rests on its facts, just as this case must. Plaintiff cites to Ponape Enterprises Co. v. Luzama, [1993] FMSC 50; 6 FSM Intrm. 274, 275 (Pon. 1993), in urging that this case should be stayed pending appeal. However, Luzama involved facts where the trial court had granted injunctive relief in the first instance. Luzama does not persuade the court that this case should be stayed pending the appeal in Lebehn. The motion to stay is therefore denied.

6) Defendants' motion to compel discovery and enlarge time filed on October 15, 2001. This motion is held in abeyance pending the court's ruling on defendants' motion for summary judgment that was also filed on October 15, 2001.

7) Plaintiff's October 23, 2001, motion to enlarge time. The motion is granted to the extent that plaintiff will respond to defendants' motion for summary judgment on or before December 14, 2001.

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