Moses v Oyang Corporation [2001] FMSC 6; 10 FSM Intrm. 210 (Chk. 2001) (24 May 2001)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Moses v. Oyang Corp,.
[2001] FMSC 6; 10 FSM Intrm. 210 (Chk. 2001)

[2001] FMSC 6; [10 FSM Intrm. 210]

CARLOS MOSES and UMAN MUNICIPAL GOVERNMENT,
Plaintiffs,

vs.

OYANG CORPORATION and THE CAPTAIN
and CREW OF THE M.V. SEA CHASE,
Defendants.

CIVIL ACTION NO. 2000-1034

ORDER

Richard H. Benson
Associate Justice

Decided: May 24, 2001

APPEARANCES:

For the Plaintiff-Intervenor (State of Chuuk):
Ready Johnny, Esq.
Chief, Division of Litigation
Office of the Chuuk Attorney General
P.O. Box PS-105
Weno, Chuuk FM 96942

For the Defendant:
Craig D. Reffner, Esq.
Law Offices of Fredrick L. Ramp
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure ; Intervention
An intervenor must make a three part showing to qualify for intervention as a matter of right under Rule 24(a): an interest, an impairment of that interest, and the inadequacy of representation by existing parties. Moses v. Oyang Corp., [2001] FMSC 6; 10 FSM Intrm. 210, 212 (Chk. 2001).

Civil Procedure ; Intervention
Both intervention of right and permissive intervention must be upon timely application. An application when the litigation is still in its initial stages and no prejudice to the existing parties is apparent is timely. Moses v. Oyang Corp., [2001] FMSC 6; 10 FSM Intrm. 210, 212 (Chk. 2001).

Civil Procedure ; Intervention
When the state claims an ownership interest in some or all of the marine space claimed by the

[10 FSM Intrm. 211]

two plaintiffs that filed the initial complaint and neither the existing plaintiffs, nor any defendant, can adequately represent the state's claimed interest, which would impair or impede the state's ability to protect its interest, and when the application is timely, the state is entitled to in intervene as a plaintiff in the case. Moses v. Oyang Corp., [2001] FMSC 6; 10 FSM Intrm. 210, 212 (Chk. 2001).

Civil Procedure ; Filings; Civil Procedure ; Pleadings
The phrase "et al." or such other similar indication is not permitted in the caption of a complaint although it may be used on later filings. Moses v. Oyang Corp., [2001] FMSC 6; 10 FSM Intrm. 210, 212 (Chk. 2001).

Civil Procedure ; Pleadings
Because technical defects in a caption can always be amended, the failure to name a party as a defendant in the caption does not mean the action cannot be maintained against him if the complaint makes a number of explicit references to him and he was served. Moses v. Oyang Corp., [2001] FMSC 6; 10 FSM Intrm. 210, 212 (Chk. 2001).

Civil Procedure ; Intervention
Generally, when a party is permitted to intervene in a pending case he joins the litigation as it stands and subject to the proceedings that have already occurred. Moses v. Oyang Corp., [2001] FMSC 6; 10 FSM Intrm. 210, 212 (Chk. 2001).

Civil Procedure ; Parties; Civil Procedure ; Pleadings
All parties must be named in the complaint. The only exception the rules allow to this requirement that parties be named, rather than just described, is that a public officer who sues or is sued in an official capacity may be described as a party by the officer's official title rather than by name. Moses v. Oyang Corp., [2001] FMSC 6; 10 FSM Intrm. 210, 213 (Chk. 2001).

Civil Procedure ; Parties; Civil Procedure ; Pleadings
Replacing an unnamed or "John Doe" party with a named party in effect constitutes a change in the party sued and can only be accomplished when the specifications of Rule 15(c) are met. Thus the presence, or addition, of described, but unnamed defendants would serve no purpose. Moses v. Oyang Corp., [2001] FMSC 6; 10 FSM Intrm. 210, 213 (Chk. 2001).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

On April 23, 2001, the State of Chuuk filed a motion to intervene as a party plaintiff in this case. Defendant Oyang Corporation filed its reply to the motion on May 2, 2001. Plaintiffs Carlos Moses and the Uman Municipal Government have not filed a response. The motion is granted with conditions.

The State of Chuuk, stating that its motion is timely, seeks to intervene of right under Civil Procedure Rule 24(a)(2) on the ground that it claims ownership rights over the area subject to this litigation and that, if it were not permitted to intervene, its interests, which are not protected by the existing parties, would be impaired. The state further submits that it has a right to intervene because certain issues may require interpretation of the Chuuk Constitution and environmental protection laws. Additionally, it claims that its intervention would also be proper under Rule 24(b) as a permissive intervention.

While the state's claim and the main action do have in common questions of law and fact

[10 FSM Intrm. 212]

sufficient for permissive intervention under Rule 24(b)(2), it seems more appropriate to grant intervention under Rule 24(a)(2). An intervenor must make a three part showing to qualify for intervention as a matter of right under Rule 24(a): an interest, an impairment of that interest, and the inadequacy of representation by existing parties. California Pac. Assocs. v. Alexander, [1995] FMSC 33; 7 FSM Intrm. 198, 200 (Pon. 1995). The state claims an ownership interest in some or all of the marine space claimed by the two plaintiffs that filed the initial complaint. Neither the existing plaintiffs, nor any defendant, can adequately represent the state's claimed interest, which would impair or impede the state's ability to protect its interest.

Both intervention of right and permissive intervention must be upon timely application. Tom v. Pohnpei Utilities Corp., [1999] FMSC 25; 9 FSM Intrm. 82, 88 (App. 1999). This application is timely because the litigation is still in its initial stages (the initial complaint was filed on December 18, 2000; Oyang Corporation filed its answer on February 27, 2001; discovery is proceeding), and no prejudice to the existing parties is apparent. The state is therefore entitled to in intervene in this case.

As required by Civil Rule 24(c), the state attached its proposed pleading to its motion. There are several difficulties with the Intervener's Proposed Complaint. It fails to name all of the defendants in its title, or caption, as required by Rule 10(a). The caption names as defendants "THE M.V. SEA CHASE, HER CAPTAIN and CREWS, OYANG FISHERIES CO. LTD., et. [sic] al." The phrase "et al." or such other similar indication is not permitted in the caption of a complaint although it may be used on later filings. FSM Civ. R. 10(a). But, because technical defects in a caption can always be amended, Moses v. M.V. Sea Chase, [2001] FMSC 56; 10 FSM Intrm. 45, 51 (Chk. 2001); Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 9 (Chk. 2001), the failure to name a party as a defendant in the caption does not mean the action cannot be maintained against him if the complaint makes a number of explicit references to him and he was served. Spring Water Dairy, Inc. v. Federal Intermediate Credit Bank, 625 F. Supp. 713, 721 n.5 (D. Minn. 1986). The body of the proposed complaint describes the defendants as:

The defendants herein-above, includes the vessel known as "Sea Chase which was registered in Panama and including each and every members [sic] of it [sic] crew, each and every owner(s) of the vessel Sea Chase, including Oyang Fisheries Co. Ltd, each and every insurer(s) of the vessel Sea Chase and its owner(s) including the Korea P & I Club and British Mutual Ltd and each and every person or entity having any interest in any of these entities.

Intervener's Proposed Complaint para. 4. The factual allegations just mention "the defendants" generally, without specifying which defendant did what. The proposed complaint was only served on plaintiffs' counsel and the counsel for defendant Oyang Corporation. (By order of February 6, 2001, Oyang Corporation was substituted as the proper name of the party defendant previously called Oyang Fisheries Co., Ltd.) Oyang Corporation's counsel previously also represented defendants the M.V. Sea Chase and the Korea Shipowners' Mutual Protection & Indemnity Association (apparently the same entity as the Korea P & I Club but a different translation of the name). But those parties were dismissed, respectively, for lack of jurisdiction because a vessel can be a defendant in a civil action only if the proceeding against it is in rem and such jurisdiction over the vessel was never acquired, and for failure to state a claim because there was neither a contractual provision authorizing an injured party's action against the insurer nor a statute authorizing an injured party's direct action against an insurer. Moses, 10 FSM Intrm. at 51-53.

Generally, when a party is permitted to intervene in a pending case he joins the litigation as it stands and subject to the proceedings that have already occurred. Vinson v. Washington Gas Light Co., [1944] USSC 55; 321 U.S. 489, 498[1944] USSC 55; , 64 S. Ct. 731, 735[1944] USSC 55; , 88 L. Ed. 883, 890 (1944); 7C CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1920, 488-89 (2d ed.).

[10 FSM Intrm. 213]

The intervenor's proposed complaint appears not to recognize this.

The intervenor's propoomplaint also includes numerous unnamed defendants. These iese include the M.V. Sea Chase's captain and crew, "each and every owner" and "each and every insurer" of the vessel "and each and every person or entity having any interest in any of these entities." (The original plaintiffs also sued unnamed defendants, described as the M.V. Sea Chase's captain and crew, although the factual allegations in the body of that complaint mention only the vessel's captain and the navigator, neither by name.) All parties must be named in the complaint. FSM Civ. R. 10(a). The only exception the rules allow to this requirement that parties be named, rather than just described, is that "[a] public officer who sues or is sued in an official capacity may be described as a party by the officer's official title rather than by name . . . ." FSM Civ. (. 25). (2ne ofne of the proposed described defendants are public officers. Replacing an unnamed or "John Doe" party with a named party in effect constitutes a e in arty and can only be accomplished when the sthe specifpecificatiications of Rule 15(c) are met. Aslandis v. United States Lines, Inc., [1993] USCA2 944; 7 F.3d 1067, 1075 (2d Cir. 1993); Melimarang v. Debesol, 7 ROP Intrm. 263, 264 (Tr. Div. 1998). Thus the presence, or addition, of described, but unnamed defendants would serve no purpose.

The present unnamed defendants, "the Captain and Crews of the M.V. Sea Chase," are therefore dismissed from the plaintiffs' complaint, unless, within twenty days of this order's entry, the plaintiffs provide the court with authority that would allow them to proceed against unnamed parties. If these parties are dismissed and at some future point their identities are revealed through discovery or otherwise, the plaintiffs may, if they are so advised, move, pursuant to Rule 15, to amend their pleadings to include these parties and any needed factual allegations against them.

The state is accordingly granted to leave to intervene as a plaintiff-intervenor. Within ten days of entry of this order, it may file its complaint in intervention in conformity with the FSM Rules of Civil Procedure and with the case's current posture. It shall serve its complaint and summonses on all parties named as defendants as well as a copy on the plaintiffs' counsel. Plaintiffs Carlos Moses and Uman Municipal Government have twenty days to oppose dismissal from their complaint of the unnamed defendants.

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