FSM SUPREME COURT TRIAL DIVISION
Cite as Kishida v. Aizawa, 13 FSM Intrm. 281 (Chk. 2005).

[13 FSM Intrm. 281]

HIROMITSU DANIEL KISHIDA,

Plaintiff,

vs.

SUMIO AIZAWA,

Defendant.

CIVIL ACTION NO. 2005-1015

ORDER OF DISMISSAL

Dennis K. Yamase

Associate Justice

Decided: June 20, 2005

[13 FSM Intrm. 282]

APPEARANCE:

For the Plaintiff:   Fredrick A. Hartman

                                 P.O. Box 222

                                 Weno, Chuuk   FM   96942

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HEADNOTES

Civil Procedure; Dismissal

     Under Civil Procedure Rule 41(b), the court may dismiss a case for the plaintiff’s failure to prosecute and such a dismissal operates as a final judgment on the merits unless the court in its dismissal order specifies otherwise. Kishida v. Aizawa, 13 FSM Intrm. 281, 283 (Chk. 2005).

Civil Procedure ) Res Judicata

     The res judicata doctrine bars the relitigation by parties or their privies of all matters that were or could have been raised in a prior action that was concluded by a final judgment on the merits, which has been affirmed on appeal or for which time for appeal has expired. Kishida v. Aizawa, 13 FSM Intrm. 281, 283 (Chk. 2005).

Civil Procedure ) Pleadings; Civil Procedure ) Res Judicata

     Res judicata is an affirmative defense. An affirmative defense generally must be pled by the defendant or it is waived. Kishida v. Aizawa, 13 FSM Intrm. 281, 284 (Chk. 2005).

Civil Procedure ) Motions; Civil Procedure ) Res Judicata

     Generally, a court may not raise the defense of res judicata on its own motion. However, in the interest of judicial economy, a court may properly raise the issue of res judicata when both actions have been brought in the same court. Kishida v. Aizawa, 13 FSM Intrm. 281, 284 (Chk. 2005).

Civil Procedure ) Dismissal; Civil Procedure ) Res Judicata

     When the court gave the plaintiff notice that res judicata might apply and an opportunity to respond and when the previous case was dismissed under Rule 41(b) for failure to prosecute and was thus an adjudication on the merits, the plaintiff is barred from relitigating or filing a new case involving the same parties and subject matter ) the matter is res judicata ) and the court may dismiss it. Kishida v. Aizawa, 13 FSM Intrm. 281, 284 (Chk. 2005).

Attorney and Client; Civil Procedure ) Res Judicata; Judgments ) Relief from Judgment

     When a case has been dismissed for the plaintiff’s failure to prosecute, the plaintiff’s possible remedies are either to appeal the dismissal or a Rule 60(b) motion for relief from judgment (the more viable, quicker, and usual remedy) if he wishes to have the dismissal set aside. (Filing a new case when there has been a dismissal on the merits is not a possible remedy.) Success by either method would reinstate the case at the point it was dismissed. If neither of these routes is taken successfully, the plaintiff, depending on his ability to prove that he would have succeeded at trial, may have a cause of action against his counsel. Kishida v. Aizawa, 13 FSM Intrm. 281, 284 (Chk. 2005).

[13 FSM Intrm. 283]

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COURT’S OPINION

DENNIS YAMASE, Associate Justice:

     This case is dismissed. The court’s reasons follow.

I.  Previous Case History

     The complaint in Hiromitsu Daniel Kishida v. Sumio Aizawa, Civil Action No. 2004-1011, was filed on June 29, 2004. It alleged, among other things, that defendant Sumio Aizawa was indebted to plaintiff Hiromitsu Kishida based on certain transactions that took place in Hawaii in early 2003. Defendant Aizawa answered the complaint and the court issued a scheduling order. No pretrial motions were filed. The parties, with the plaintiff appearing through counsel (who had been permitted to appear pro hac vice) and Aizawa appearing in person, appeared at a pretrial conference on April 7, 2005 and, by their agreement, trial in Civil Action No. 2004-1011 was set for May 27, 2005. That setting was memorialized in an order issued the same day.

     When Civil Action No. 2004-1011 was called for trial, Aizawa appeared representing himself, but no one appeared for the plaintiff, Kishida. No request for a continuance had been made or a motion to continue filed. Nor had the court received any communication from plaintiff’s counsel concerning his absence or inability to appear on a date he had agreed to. The court therefore dismissed Civil Action No. 2004-1011 under Rule 41(b) for the plaintiff’s failure to prosecute. (A second defendant had been dismissed earlier.)

     Under Civil Procedure Rule 41(b), the court may dismiss a case for the plaintiff’s failure to prosecute and such a dismissal operates as a final judgment on the merits. "Unless the court in its order for dismissal otherwise specifies, a dismissal under [Rule 41(b)] and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits." FSM Civ. R. 41(b). Since the court did not specify otherwise, its May 27th dismissal of Civil Action No. 2004-1011 was an adjudication on the merits.

II.  Present Case History

     On June 6, 2005, the complaint in this case (Civil Action No. 2005-1015) was filed and signed by counsel not admitted to practice before the FSM Supreme Court. No motion to appear pro hac vice was filed along with the complaint. Because of this and since the pleadings in this case appeared to be for events identical to those in Civil Action No. 2004-1011, the court ordered that counsel must, no later than June 17, 2005, file his motion to appear pro hac vice and a brief on whether this case should be dismissed on the ground that it is res judicata. Nothing was filed.

     The complaint in Civil Action No. 2005-1015 is verbatim to the relevant parts of the complaint in Civil Action No. 2004-1011. It has the same plaintiff and defendant and raises the same claims and issues as in the previous case ) Civil Action No. 2004-1011, and that previous case was adjudicated on the merits.

III.  Res Judicata

     The doctrine of res judicata bars the relitigation by parties or their privies of all matters that were or could have been raised in a prior action that was concluded by a final judgment on the merits, which has been affirmed on appeal or for which time for appeal has expired. Iriarte v. Etscheit, 8 FSM Intrm.

[13 FSM Intrm. 284]

231, 236-37 (App. 1998); see also Ungeni v. Fredrick, 6 FSM Intrm. 529, 531 (Chk. S. Ct. App. 1994). The doctrine of res judicta applies to this case.

     Res judicata is an affirmative defense. FSM Civ. R. 8(c). An affirmative defense generally must be pled by the defendant or it is waived. Senda v. Semes, 8 FSM Intrm. 484, 493 (Pon. 1998). Generally, a court may not raise the defense of res judicata on its own motion. Warnock v. Pecos County, 116 F.3d 776, 778 (5th Cir. 1997). However, in the interest of judicial economy, a court may properly raise the issue of res judicata when both actions have been brought in the same court. Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) (appellate court affirmed trial court’s sua sponte dismissal of suit almost identical to one filed and dismissed several months before). That is the case here. Both Civil Action No. 2004-1011 and Civil Action No. 2005-1015 were filed in the same court, and Civil Action No. 2005-1015 was filed less than a month after No. 2004-1011 was dismissed. The court gave the plaintiff notice that res judicata might apply and an (untaken) opportunity to respond.

     Kishida is therefore barred from relitigating or filing a new case involving the same parties and subject matter ) the matter is res judicata. Although, strictly speaking, the judgment in Civil Action No. 2004-1011 is not yet completely final since the time for appeal has not yet run out, that fact would not permit a plaintiff whose case was adjudicated on the merits, as Civil Action No. 2004-1011 was, to "refile" the case just because the time for appeal had not yet run out.

IV.  Remedies for Dismissal Civil Action No. 2004-1011

     While the court would usually be inclined to not act so quickly in the expectation that the defendant may plead the res judicata defense, several reasons cause the court to raise it sua sponte at this point. Plaintiff’s counsel is inexperienced and not admitted to practice before this court. The defendant is pro se. By the court’s acting so promptly, the plaintiff will have all of his possible remedies available if he wishes to have the dismissal set aside. (Filing a new case when there has been a dismissal on the merits is not a possible remedy.) There is still time left to appeal the dismissal if the plaintiff wishes to pursue that avenue. The more viable, quicker, and usual remedy, a motion for relief from judgment under Rule 60(b) is also available. (This is a remedy a plaintiff usually uses to have a Rule 41(b) dismissal set aside.) Success by either method would reinstate Civil Action No. 2004-1011 at the point it was dismissed ) ready for trial. If neither of these routes is taken successfully, the plaintiff, depending on his ability to prove that he would have succeeded at trial, may have a cause of action against his counsel.

V.  Dismissal

     Accordingly, this matter (Civil Action No. 2005-1015) is dismissed since it was filed and signed by a counsel who was not admitted to practice before the Federated States of Micronesia Supreme Court and who, although notified by the court of the need to do so, failed to file a motion to appear pro hac vice and also on the ground that it is res judicata. The plaintiff may pursue, if he so chooses, some other remedy for the dismissal of Civil Action No. 2004-1011.

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