FSM 10 Intrm. 112-116

When a party moving to dismiss for failure to state a claim states that an agreement is referred to in the complaint, and that by attaching a copy to its motion, it does not intend to present matter outside the pleadings, regardless of intent, the agreement is "matter outside the pleadings" under Rule 12(b)(6), and the court will therefore treat the motion to dismiss as one for summary judgment under Rule 56, as is expressly provided for by Rule 12(b). Dai Wang Sheng v. Japan Far Seas Purse Seine Fishing Ass'n, 10 FSM Intrm. 112 , 114 (Kos. 2001).

Rule 56 provides for summary judgment in a movant's favor if the pleadings and facts properly before the court show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. For purposes of a summary judgment motion, the court views all facts in the light most favorable to the nonmovant. Dai Wang Sheng v. Japan Far Seas Purse

A contract provision that states that a fishing association will "take necessary steps to facilitate prompt and adequate settlement of any claim for loss or damage" against its member vessels cannot be read to mean that the association assumed liability for those claims because to "facilitate" a settlement of a claim or loss, without more, does not mean to assume liability for the claim or loss. Dai Wang Sheng v. Japan Far Seas Purse Seine Fishing Ass'n, 10 FSM Intrm. 112 , 115 (Kos. 2001).

A fishing association is not liable under a general theory of agency when the complaint does not make a general agency allegation, and instead asserts liability based on an agreement's language, and nothing in the agreement renders the other defendants the agents of the fishing association such that the association is liable under the respondeat superior doctrine for the damages flowing from a vessel's alleged negligent operation. Dai Wang Sheng v. Japan Far Seas Purse Seine Fishing Ass'n, 10 FSM Intrm. 112 , 115 (Kos. 2001).

The relief requested in the motion to strike a claim in a complaint on the ground that it is the same as a claim in the amended complaint in different civil action is more appropriately granted through consolidation of both actions because, since the claims are the same, the actions involve a common question of law or fact. Dai Wang Sheng v. Japan Far Seas Purse Seine Fishing Ass'n, 10 FSM Intrm. 112 , 115-16 (Kos. 2001).

56 of the FSM Rules of Civil Procedure, is granted. As to the remaining three defendants' motion to strike, the court treats the relief requested as the subject of a motion to consolidate under Rule 42(a) of the FSM Rules of Civil Procedure, and consolidates this action, minus the Association as a defendant, with Civil Action No. 1999-2000.

On January 18, 2001, the Association filed its Motion to Dismiss, and the remaining defendants filed their Motion to Strike. On January 31, 2001, plaintiff Dai Wang Sheng ("Sheng") filed her Opposition to Motions to Dismiss and Strike. On February 19, 2001, all of the defendants filed Defendants' Reply to Plaintiff's Opposition to Motions to Dismiss and Strike.

This is a maritime wrongful death action filed on December 29, 2000. The difference between this lawsuit and count 2 of the amended complaint in a prior lawsuit, Civil Action No. 1999-2000, is that this suit adds a party, the Association. In response to the complaint in the case at bar, the Association now moves the court to dismiss it as a party defendant pursuant to Rule 12(b)(6) of the FSM Rules of Civil Procedure, failure to state a claim. The remaining defendants, M/V Fukuichi Maru No. 85, Fukuichi Gyogyo Kabushiki Kaisha, and Tokuya Suda move to strike the complaint because in the event the Association is dismissed, the complaint will restate count 2 of the amended complaint in Civil Action 1999-2000, and they deem the complaint duplicative under Rule 12(f) of the FSM Rules of Civil Procedure.

As part of its motion to dismiss, the Association attaches a copy of a document which in full is entitled "Federated States of Micronesia Foreign Fishing Agreement between The Micronesian Maritime Authority and The Japanese Fishing Associations" ("the Agreement"). The Association states that the Agreement is referred to in the complaint, and by attaching a copy, it does not intend to present matter outside the pleadings. Regardless of intent, however, the Agreement is "matter outside the pleadings" underRule 12(b)(6). Sheng also attaches additional material to her response to the motions. The court therefore treats the motion to dismiss as one for summary judgment under Rule 56, which is expressly provided for by Rule 12(b) .Rule 56 provides for judgment in movant's favor if the pleadings and facts properly before the court "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." For purposes of a motion for summary judgment, the court views all facts in the light most favorable to the nonmovant. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 48 (App. 1995). The court discusses the motion for summary judgment and the motion to strike in turn.

The allegations of the complaint about the collision at sea in which Guo Lin Sheng, late husband of the plaintiff Sheng, perished are that the defendant vessel Fukuichi Maru 85 collided with the vessel Yue Yuan Yu 1996, on which Guo Lin Sheng, a fisherman, was sleeping in his berth. Fukuichi Gyogyo Kabushiki is the owner of the Fukuichi Maru 85, and Suda Tokuya was the master. The defendant Association is a signatory to the Agreement, dated July 25, 1997, between it and the Micronesian Maritime Authority, now known as the Micronesian Fishing Authority. Two other fisheries associations are also signatories on the agreement, but they play no role. Paragraph 14 of the complaint alleges that "[u]nder the terms of Defendants' foreign fishing access agreements and permits entered into with the Federated States of Micronesia, Defendants agree to be jointly and severally liable for any liabilities, damages, costs, claims, recoveries, and expenses arising out of deaths to persons caused by the negligence or intentional act of Defendants and agree to maintain adequate insurance for such liabilities."

on paragraph 29 of the Agreement, which provides that "the [Association] shall take necessary steps to facilitate prompt and adequate settlement of any claim for loss or damage on the part of the Government of FSM or citizens or residents thereof for which vessels operated by members of the [Association] are responsible" (emphasis added). Assuming for the moment that the deceased is a third party beneficiary of this agreement, the court does not read the word "facilitate," which is the operative word, to confer liability as Sheng urges. "Facilitate" means "to make easier or less difficult." Webster's Third New International Dictionary 812 (1969). In interpreting a contract, words are to be given there plain and ordinary meaning. 17A Am. Jur. 2d Contracts § 359 (1991). Although the Association may have agreed to assist in the "prompt and adequate settlement of claims," the court cannot read this to mean that the Association assumed liability for those claims. Assumption of liability, although certainly a substantial thing to undertake, is not a difficult notion to convey in words. To "facilitate" a settlement of a claim or loss, without more, does not mean to assume liability for the claim or loss.

Sheng also urges that the Association "can be liable for the claims raised in the plaintiffs complaint even under a general theory of agency as explained in the Ting Hong [sic] case," referring to FSM v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 79 (Pon. 1997). The complaint does not make a general agency allegation, and instead asserts liability on the language of paragraph 29 of the Agreement. That aside, the court has reviewed the Agreement in detail, and cannot discern anything in the Agreement that renders the other defendants the agents of the Association such that the Association is liable under the respondeat superior doctrine for the damages flowing from the alleged negligent operation of the M/V Fukuichi Maru 85. The facts of the case at bar are different from the Ting Hong case, cited by Sheng and which involved illegal fishing under Title 24 of the FSM Code, not negligence. A provision in the agreement analyzed in that case provided that Ting Hong "shall insure that its Authorized Vessels comply with the provisions of this Agreement and all applicable laws and regulations." 8 FSM Intrm. at 85. The Agreement in this case contains similar language, and provides per paragraph 8 that the Association "shall take necessary steps to ensure that their Members shall comply with the Act, the terms of the Agreement, the laws of the Federated States of Micronesia in respect of fisheries and other related activities including customs law and immigration." Both provisions address statutory violations, and not the type of alleged conduct at issue here, which is governed by tort law principles.

Rule 12(f) of the FSM Rules of Civil Procedure provides that "the court may order stricken from any pleading any . . . redundant . . . matter." "[G]enerally, courts will strike a claim as `redundant' when it essentially repeats another claim in the same complaint." James Wm. Moore, Moore's Federal Practice ¶ 12.37[3] (3d ed. 1999) (emphasis added). Predicated upon the court's dismissal of the Association, the remaining defendants M/V Fukuichi Maru No. 85, Fukuichi Gyogyo Kabushiki Kaisha, and Tokuya Suda move to strike the complaint as to them, not on the complaint's internal redundancy, but because the complaint in this case without the Association as a defendant is the same as the wrongful death count, or count 2, of the amended complaint in Civil Action No. 1999-2000. The court is disinclined to conclude that Rule 12(f) of the FSM Rules of Civil Procedure is directed to this sort of non-internal redundancy. Instead the facts suggest consolidation. FSM Rule of Civil Procedure 42(a) provides that "actions involving a common question of law or fact" may be consolidated. Here, the instant action is now the same as count 2 of the amended complaint in Civil Action No. 1999-2000. Sameness is a subset of commonality under Rule 42(a), and consolidation of this action, minus the Association, with Civil Action No. 1999-2000 results in the merger of the two identical causes of action

into one. Accordingly, on the facts of this case the court will treat the relief requested in the motion to strike under Rule 12(f) as more appropriately granted through consolidation under Rule 42(a) of the FSM Rules of Civil Procedure. This case is consolidated with Civil Action No. 1999-2000, with the consolidated cases to continue under the designation of Civil Action 1999-2000.