In re Engichy [2003] FMSC 26; 11 FSM Intrm. 555 (Chk. 2003) (21 May 2003)

FSM SUPREME COURT TRIAL DIVISION
Cite as In re Engichy
[2003] FMSC 26; 11 FSM Intrm. 555 (Chk. 2003)

[2003] FMSC 26; [11 FSM Intrm. 555]

IN RE JUDGMENTS AGAINST JOHN ENGICHY,
ISLAND IMPORTS, and ROSEMARY ENGICHY,
Judgment-Debtors.

CIVIL ACTION NO. 2003-1001

ORDER DENYING INTERVENTION AND MEMORANDUM

Martin G. Yinug
Associate Justice

Decided: May 21, 2003

APPEARANCES:

For the Would-be Intervenor: R. Anthony Welch, Esq.
(FSM) Assistant Attorney General
FSM Departmrent of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Judgment-Creditor: Michael J. Sipos, Esq.
(Dateline Exports, Inc.) P.O. Box 2069
Kolonia, Pohnpei FM 96941

[11 FSM Intrm. 556]

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HEADNOTES

Civil Procedure - Intervention
A motion to intervene must state the grounds therefor and be accompanied by a pleading setting forth the claim or defense for which intervention is sought. In re Engichy[2003] FMSC 26; , 11 FSM Intrm. 555, 557 (Chk. 2003).

Civil Procedure - Intervention
A denial of a motion to intervene can be solely on the ground that no proposed pleading accompanies the intervention motion, but such a denial would be without prejudice. The motion could be refiled with a proposed pleading attached. In re Engichy[2003] FMSC 26; , 11 FSM Intrm. 555, 557 (Chk. 2003).

Civil Procedure - Intervention
Although the formal requirements of Rule 24(c) state that a proposed pleading should accompany the attempt to intervene, when the papers filed give adequate notice to the parties of the claim and clearly state the ground for it, they have fulfilled the substance of Rule 24’s requirements. Noncompliance with Rule 24(c)’s strict requirements does not bar consideration of the motion’s merits. In re Engichy[2003] FMSC 26; , 11 FSM Intrm. 555, 557 (Chk. 2003).

Civil Procedure
When the court has not previously construed an FSM civil procedure rule which is identical or similar to a U.S. rule, it may look to U.S. sources for guidance in interpreting the rule. In re Engichy[2003] FMSC 26; , 11 FSM Intrm. 555, 557 n.1 (Chk. 2003).

Civil Procedure - Intervention
There are rare cases where it is proper to allow intervention even after judgment has been entered. Courts are reluctant to allow intervention after judgment and require a strong showing by the applicant. In re Engichy[2003] FMSC 26; , 11 FSM Intrm. 555, 557 (Chk. 2003).

Civil Procedure - Intervention
Intervention may be allowed after a final judgment or decree when it is necessary to preserve some right which cannot otherwise be protected. In re Engichy[2003] FMSC 26; , 11 FSM Intrm. 555, 557 (Chk. 2003).

Civil Procedure - Intervention
While the court has previously allowed intervention for the sole purpose of asserting a claim to funds on deposit with the court, when the court is not currently in possession of any funds and does not expect to be and when the entity from which the funds are claimed is no longer a party to the case, a motion to intervene to claim such funds will be denied. In re Engichy[2003] FMSC 26; , 11 FSM Intrm. 555, 558 (Chk. 2003).

Civil Procedure - Intervention
If a party is permitted to intervene in a pending case it joins the litigation as it stands and subject to the proceedings that have already occurred. In re Engichy[2003] FMSC 26; , 11 FSM Intrm. 555, 558 (Chk. 2003).

Civil Procedure - Intervention
When the court is not in possession of any funds to which a would-be intervenor might assert its claim and the would-be intervenor has no interest in the subject matter of the case, its remedy, if it wishes to resort to judicial proceedings, is to file a separate action against either whoever it believes may be liable to it on its claim. In re Engichy[2003] FMSC 26; , 11 FSM Intrm. 555, 558 (Chk. 2003).

[11 FSM Intrm. 557]

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COURT’S OPINION

MARTIN G. YINUG, Associate Justice:

On May 5, 2003, the FSM national government filed its motion to intervene in this consolidated debt collection case. It asserts that it has an interest in the case because it claims that judgment-creditor Dateline Exports, Inc. ("Dateline") owes it money for unreimbursed costs it incurred when national police were used to execute and levy on Dateline’s judgment against the judgment-debtors herein. In February, 2003, Dateline’s counsel asked the national police to levy on its writ of execution as soon as possible because it needed to execute the writ before other judgment-creditors acted. Dateline advanced certain costs, but the FSM asserts that it is owed more.

On May 19, 2003, Dateline filed its opposition to the motion. It stated that the motion should be denied because it was not accompanied by a proposed pleading as required by Rule 24. Dateline does not further argue the merits of whether intervention is proper. Instead, it argues the merits of the FSM’s claim itself - Dateline denies it owes the FSM any money from its use of the national police to levy on its writ of execution.

ANALYSIS

Civil Procedure Rule 24(c) provides that: "The motion [to intervene] shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought." No pleading was attached to the motion. Dateline is correct that intervention can be denied solely on the ground that no proposed pleading accompanies the intervention motion. But such a denial would be without prejudice. The motion could be refiled with a proposed pleading attached.

To require the FSM to do so in this case would be to elevate form over substance. Although the formal requirements of Rule 24(c) state that a proposed pleading should accompany the attempt to intervene, when the papers filed give adequate notice to the parties of the claim and clearly state the ground for it, they have fulfilled the substance of Rule 24’s requirements. Belgian Am. Mercantile Corp. v. De Groeve-Marcotte & Fils, 433 F. Supp. 1098, 1101 (S.D.N.Y. 1977).^[1] Noncompliance with Rule 24(c)’s strict requirements does not bar consideration of the motion’s merits. Id.

The FSM seeks to intervene in this post-judgment case. There are rare cases where it is proper to allow intervention even after judgment has been entered. Aggregate Sys., Inc. v. FSM Dev. Bank, [2003] FMSC 82; 11 FSM Intrm. 514, 518 (Chk. 2003); Moses v. Oyang Corp., [2001] FMSC 14; 10 FSM Intrm. 273, 276 (Chk. 2001). Courts are reluctant to allow intervention after judgment and require a strong showing by the applicant. Aggregate Sys., 11 FSM Intrm. at 518. Intervention may be allowed after a final judgment or decree when it is necessary to preserve some right which cannot otherwise be protected. Id.

[11 FSM Intrm. 558]

The FSM claims that the right it is trying to preserve (and which presumably it claims cannot otherwise be protected) is its claim to funds generated by Dateline’s execution levy that are in or should be in the court’s custody. The court has previously allowed intervention for the sole purpose of asserting a claim to funds on deposit with the court. Id. at 519. The court, however, is not now in possession of any funds generated by that levy or attempted levy. Nor does it expect to be. By order entered in this case on May 14, 2003, the court ruled that the Dateline judgment had been fully satisfied sometime in February when Dateline took title to certain of the judgment-debtors’ inventory. In re Engichy[2003] FMSC 79; , 11 FSM Intrm. 520, 533 (Chk. 2003). Dateline was not ordered, in this action, to disgorge the funds it has already received. Id. This is not grounds for the FSM to intervene. It has no interest in matters currently before the court.

Furthermore, there must be an existing litigation into which to intervene, because intervention may not be utilized to revive a lawsuit. Moses, 10 FSM Intrm. at 275. Since Dateline’s judgment has been fully satisfied, it is no longer a party to this existing suit. In re Engichy, 11 FSM Intrm. at 533. There is therefore no party in this case for the FSM to claim against. This is because if a party is permitted to intervene in a pending case it 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).

Moreover, the FSM has no interest in the subject matter of this case which is how the judgment-debtors can best pay off the consolidated judgment-creditors. The FSM is not a judgment-creditor and has no claim against the judgment-debtors. Its only claim is a breach of contract (or possibly violation of the execution statutes) claim against either a non-party - Dateline’s counsel - or against a former party - Dateline itself. Its claim is of no interest to and has no effect on the eight parties still remaining in this case. Since the court is not in possession of any funds to which the FSM might assert its claim, its remedy, if it wishes to resort to judicial proceedings, is to file a separate action against either Dateline’s counsel or Dateline, or both - whoever it believes may be liable to it on its claim.

CONCLUSION

Accordingly, the FSM’s motion to intervene is hereby denied. It may pursue its claim in a separate action if it so elects.

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Footnotes:

1. When the court has not previously construed an FSM civil procedure rule which is identical or similar to a U.S. rule, it may look to U.S. sources for guidance in interpreting the rule, see, e.g., Bualuay v. Rano, [2002] FMSC 30; 11 FSM Intrm. 139, 146 n.1 (App. 2002); Primo v. Pohnpei Transp. Auth., [2000] FMSC 35; 9 FSM Intrm. 407, 413 n.3 (App. 2000); Tom v. Pohnpei Utilities Corp., [1999] FMSC 25; 9 FSM Intrm. 82, 87 n.2 (App. 1999); Senda v. Mid-Pacific Constr. Co., [1994] FMSC 20; 6 FSM Intrm. 440, 444 (App. 1994); Andohn v. FSM, [1984] FMSC 4; 1 FSM Intrm. 433, 441 (App. 1984). Whether the absence of an accompanying pleading is an absolute bar to granting a motion to intervene is an issue the court has not addressed before.

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