FSM Development Bank v Paul [2012] FMSC 3; 18 FSM Intrm. 149 (Pon. 2012) (19 January 2012)

FSM SUPREME COURT TRIAL DIVISION

FSM DEVELOPMENT BANK, ) CIVIL ACTION NO. 2010-001
Plaintiff,

vs

HENRY PAUL and SOSPENS PAUL,
Defendants.
___________________________________

ORDER DENYING MOTION TO SUBSTITUTE

Dennis K. Yamase
Associate Justice

Decided: January 19, 2012

APPEARANCE:

For the Plaintiff: Nora E. Sigrah, Esq.

P.O. Box M

Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Motions
Although the absence of opposition is generally deemed consent, a court still needs good grounds before it can grant an unopposed motion. FSM Dev. Bank v. Paul, [2012] FMSC 3; 18 FSM Intrm. 149, 150 (Pon. 2012).

Civil Procedure - Parties - Substitution of
Substitution of parties due to a party's death is governed by Civil Procedure Rule 25(a), which clearly contemplates appointment of legal representatives, such as an executor or an administrator. Relatives of the deceased who are not legal representatives cannot be substituted as parties. An administrator's identity is not presumed from an intestacy statute. There must be some designation by a court. The proper party for substitution is either the executor or the administrator of the deceased's estate ("representative"), or, if the estate has been distributed by the time the motion to substitute is made, the distributee ("successor"). FSM Dev. Bank v. Paul, [2012] FMSC 3; 18 FSM Intrm. 149, 150-51 (Pon. 2012).

Civil Procedure - Parties - Substitution of
The court cannot substitute unknown and unnamed persons as parties defendant. A motion for substitution is deficient when it does not name a proper party to be substituted since the court and the other parties must know the names and identities of the parties to be substituted so that they may be properly served. FSM Dev. Bank v. Paul, [2012] FMSC 3; 18 FSM Intrm. 149, 151 (Pon. 2012).

Civil Procedure - Parties - Substitution of
Since proceeding against unknown defendants is not authorized by the FSM Rules of Civil Procedure, a case cannot proceed against unknown heirs or devisees. Therefore a motion to substitute "the heirs and devisees" of a deceased party will be denied. FSM Dev. Bank v. Paul, [2012] FMSC 3; 18 FSM Intrm. 149, 151 (Pon. 2012).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

On November 24, 2011, the plaintiff, the FSM Development Bank filed Plaintiff's Suggestion of Death on The Record; Motion for Substitution of Party; Request for Hearing; with a supporting exhibit. The bank provides a certified copy of the death certificate of defendant Sospens Paul. The bank further moves that since the Pohnpei State Mortgage Law provides that a deceased mortgagor's heirs and devisees take subject to a mortgage, 41 Pon. C. § 6-107, that the court enter an order substituting party-defendant Sospens Paul with the "Heirs and Devisees of Sospens Paul" as the parties defendant. No opposition to the motion to substitute has been filed.

Although the absence of opposition is generally deemed consent, the court still needs good grounds before it can grant an unopposed motion. FSM Civ. R. 6(d); FSM v. GMP Hawaii, Inc., [2009] FMSC 31; 16 FSM Intrm. 479, 486 (Pon. 2009).

Substitution of parties due to the death of a party is governed by Civil Procedure Rule 25(a). The court cannot grant the bank's motion and substitute unknown and unnamed persons as parties defendant.

Rule 25(a) clearly contemplates appointment of legal representatives, such as an executor or an administrator. Relatives of the deceased who are not legal representatives cannot be substituted as parties. The identity of an administrator is not presumed from an intestacy statute. There must be some designation by a court. The proper party for substitution is either the executor or the administrator of the deceased's estate ("representative"), or, if the estate has been distributed by the time the motion to substitute is made, the distributee ("successor").

Damarlane v. FSM, [1997] FMSC 30; 8 FSM Intrm. 10, 12 (Pon. 1997) (citations omitted). See alsoGeorge v. Jonithan, [2007] FMKSC 22; 15 FSM Intrm. 455, 457 (Kos. S. Ct. Tr. 2007). A motion for substitution is deficient when it does not name a proper party to be substituted. Damarlane, 8 FSM Intrm. at 13. The court and the other parties must know the names and identities of the parties to be substituted so that they may be properly served. Id. "Proceeding against unknown defendants has not been authorized by the FSM Rules of Civil Procedure." People of Weloy ex rel. Pong v. M/V Micronesian Heritage, [2004] FMSC 39; 12 FSM Intrm. 506, 507 (Yap 2004). This case cannot proceed against unknown heirs or devisees.

Accordingly, the motion to substitute the heirs and devisees of Sospens Paul is denied. This denial is without prejudice to a future motion to substitute a proper party.

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