On the afternoon of June 13, 2001, plaintiffs' counsel, counsel for the plaintiff-intervenor State of Chuuk, and counsel for defendant Oyang Corporation and for former defendants the M.V. Sea Chase and the Korea Shipowners' Mutual Protection & Indemnity Association filed a stipulated dismissal of this action. About ten minutes later, counsel for Wiseman Moses filed a Motion to Intervene and a Complaint for Intervention with supporting affidavit. The same day, he also filed a Supplemental Affidavit of Camillo Noket in Support of Motion to Intervene, in which counsel stated that at 9:30

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that morning Wiseman Moses had asked him to represent him to intervene in this case, that the power went off at 10:00 a.m. as he was preparing the motion to intervene, that at 10:15 he informed Oyang's counsel that he represented Wiseman Moses and was preparing a motion to intervene and was told that the other three counsel had all signed a stipulated dismissal, that he called the court and no dismissal had yet been filed, and that when the power came back on at 11:00 he prepared the motion and filed it and supporting documents at about 1:15 p.m. Personal service by hand delivery was effected on all three other counsel on June 13, 2001.

     No opposition has been filed. Even though failure to timely oppose a motion is deemed a consent to that motion, Actouka v. Etpison, 1 FSM Intrm. 275, 276 (Pon. 1983) (relying on FSM Civ. R. 6(d)), the court still needs proper grounds before it may grant the motion, Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994).

     The motion may be fairly summarized as asking that Wiseman Moses be permitted to intervene as a matter of right because the "petitioners" claim an interest relating to the reef and tidelands property allegedly destroyed when the M.V. Sea Chase ran aground. (The proposed intervenor's complaint further alleges that the "Intervenor" owns certain reefs and tidelands within Kuop Atoll.) Counsel's supplemental affidavit may be construed as a further contention that the motion was timely, or would have been timely but for the power outage. As stated above, these papers were all filed after the stipulated dismissal had been filed.

     The stipulated dismissal was signed by the counsel who represented all the parties who had appeared in this case until then. As such it operated as a voluntary dismissal of the case without the need for further action. FSM Civ. R. 41(a)(1)(ii). No court order was or is needed. Labra v. Makaya, 7 FSM Intrm. 75, 76 (Pon. 1995); see also FSM Civ. R. 41(a)(2). "Caselaw concerning stipulated dismissals under Rule 41(a)(1)(ii) is clear that the entry of such a stipulation of dismissal is effective automatically and does not require judicial approval." Gardiner v. A.H. Robins Co., 747 F.2d 1180, 1189 (8th Cir. 1984).1 The case had thus already been dismissed when Wiseman Moses's motion to intervene was filed.

     "[T]imeliness is not the sole prerequisite for intervention of right. There must be an existing litigation into which to intervene, because intervention may not be utilized to revive a moribund lawsuit." Cook v. Bates, 92 F.R.D. 119 (S.D.N.Y. 1981) (citation omitted). "Intervention contemplates an existing lawsuit and cannot be permitted to breathe life into a non-existent suit." Chavis v. Whitcomb, 57 F.R.D. 32, 36 (S.D. Ind. 1972). Wiseman Moses therefore cannot intervene in this case

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because there is no case in which to intervene. "Because the stipulations of dismissal were effective when filed, there is no action in which to intervene and the motions to intervene are moot." Mutual Produce, Inc. v. Penn Cent. Transp. Co., 119 F.R.D. 619, 621 (D. Mass. 1988).

     Even if the motion to intervene had been filed before the parties' stipulated dismissal was filed, the parties' stipulated dismissal would have been effective without Wiseman Moses's consent (in the absence of a court-ordered stay). The mere filing of a motion to intervene would not give Wiseman Moses party status. Persons seeking to intervene in a case cannot be considered parties until their motion to intervene has been granted. Mutual Produce, Inc., 119 F.R.D. at 620. "Indeed, motions to intervene are not granted automatically, nor does their filing constitute an automatic stay." Id. In Mutual Produce, the "stipulations of dismissal were docketed and became effective before" the court had an opportunity to consider whether the motions to intervene should be granted. Id. at 620-21. The would-be "intervenors, therefore, were not `parties who have appeared in the action,'" and because the stipulated dismissals were effective when filed, the intervention motions were denied as moot. Id. at 621. Thus even if Wiseman Moses had filed his motion to intervene ten minutes before, instead of ten minutes after, the stipulated dismissal, the stipulated dismissal still would have been effective to dismiss the case under Rule 41(a)(1)(ii). Until Wiseman Moses's motion had been granted, or a stay sought and granted, he could not have prevented the parties' stipulated dismissal from being effective.

     Although there are those rare cases where it may be proper to allow intervention even after judgment has been entered, see generally 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1916, at 444-56 (2d ed. 1986), this is not such a case because this case was voluntarily dismissed before any judgment was entered. The parties stipulated to a dismissal, not to a judgment. No judgment was, or will be, entered.

     The motion to intervene is accordingly denied as moot.

     This turn of events prejudices no one. The defendant Oyang Corporation is not prejudiced because it knew earlier that there were other potential claimants. In fact, it and two former defendants, the M.V. Sea Chase and the Korea Shipowners' Mutual Protection & Indemnity Association, were the first to raise the point that other potential claimants existed. Moses v. M.V. Sea Chase, 10 FSM Intrm. 45, 48-49 (Chk. 2001) (motion to dismiss because other possible claimants, known and unknown, alleged to be indispensable parties). Nor is any prejudice to the two original plaintiffs or to the plaintiff-intervenor State of Chuuk apparent. Wiseman Moses is not prejudiced because of his inability to intervene in this dismissed case. The dismissal was not an adjudication that affected any rights that he might have and the statute of limitations has not run. It does not affect his ability to bring suit against any of the parties. He may still do so, if he is so advised.

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Footnote:

1. When an FSM Civil Procedure Rule is nearly identical to a U.S. Federal Civil Procedure Rule and the FSM Rule has not previously been construed, the FSM Supreme Court may look to U.S. federal practice for guidance. Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 413 n.3 (App. 2000); Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 87 n.2 (App. 1999); Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 444 (App. 1994).