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HEADNOTES

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

I. BACKGROUND

On August 29, 2011, the Court issued a Decision on the summary judgment motions filed by the Defendant Association and the remaining Defendants. The Court granted the Defendant Association's partial motion for summary judgment and denied the remaining Defendant's motion for summary judgment.

On September 8, 2011, the Defendant Association filed a Motion for Clarification of Decision and If Necessary to Amend Decision. On September 19, 2011, the Plaintiff FSM filed a motion for enlargement of time to file its opposition to Defendant Association's motion for clarification. On September 20, 2011, the Plaintiff FSM filed an Opposition to Defendant Association's Motion for Clarification of Decision and If Necessary to Amend. On September 22, 2011, the Plaintiff FSM filed a Motion to Amend Caption of Plaintiff's Opposition. On September 30, 2011, the Defendant Association filed a Reply to FSM's Opposition Motion to Clarify Decision.

There being no opposition filed to the Plaintiff FSM's motions for enlargement and to amend the caption of its opposition to the Defendant Association's motion for clarification, those motions are HEREBY GRANTED.

On October 3, 2011, a hearing was held to hear arguments on the motion for clarification of decision and to discuss future scheduling. All parties were represented at the hearing, but the Plaintiff's primary counsel Pole Atanraoi was ill and unable to attend the hearing. Steve George of the FSM Attorney General's Office requested to appear for this hearing in place of attorney Atanraoi. There being no opposition from opposing counsel, this motion was granted. Since George was a last minute replacement for the ill Atanraoi and not familiar with the case or the opposition to the Defendant Association's motion for clarification, the Court informed the parties that it would decide whether to hold another hearing when Atanraoi was available or to decide the motion for clarification on the papers. Since the motion for clarification has been briefed, the Court has decided it will issue its

[18 FSM R. 81]

decision on this motion on the filings by the Defendant Association and the Plaintiff FSM.

II. DISCUSSION AND ANALYSIS

The Defendant Association's motion for clarification or to amend decision is based on the Court's decision regarding partial and complete summary judgment issued on August 29, 2011. The Defendant Association is still undertaking discovery and requests the court to allow it to file a motion for summary judgment or contest certain findings that the Court made in its August 29, 2011 summary judgment decision at trial. The Plaintiff FSM in opposition states that there is nothing before the Court showing that parts of its August 29th decision were clearly erroneous and that the findings should not be amended.

The Court agrees with the Plaintiff FSM that there is no sufficient showing that the Court's August 29th decision was clearly erroneous and justifies amending the summary judgment decision. The Court does, however, recognize that this matter has not yet gone to trial and no final judgment has yet been rendered. As such, the Defendant Association still has the opportunity to show that the Court's findings in its summary judgment order is clearly erroneous or unsupported by credible evidence.

Subsection (b) of FSM Civil Rule 54 on Judgments states as follows:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(emphasis added).

The Court can find no directly applicable FSM caselaw on the points made by the Defendant Association, but there are numerous United States cases addressing this or similar issues. The FSM Rules of Civil Procedure are generally drawn from the U.S. Federal court rules. The court therefore may look to interpretations of the applicable U.S. Federal Rules of Civil Procedure for guidance in seeking interpretations of the FSM rule. FSM v. Ponape Builders Constr. Inc., 2 FSM Intrm. 48, 52 (Pon. 1985) (Rule 56 of FSM Rules of Civil Procedure is drawn from U.S. Federal court rules. The court therefore may look to interpretations of Rule 56 of the U.S. Federal Rules of Civil Procedure for guidance in seeking proper interpretations of the FSM rule).

III. CLARIFICATION

In the case of United Bonding Insurance Co. v. Stein, 410 F.2d 483 (3d Cir. 1969), the U.S. federal court held that in the absence of a Rule 54(b) certification of final judgment, the partial summary judgment is subject to revision at any time before the entry of final judgment on all the claims presented in the action. Id. at 486. As such, the Defendant Association shall have the opportunity, either upon a further motion for summary judgment or at trial to show that the trial court's findings are clearly

[18 FSM R. 82]

erroneous or unsupported by any credible evidence.

This order further provides the Plaintiff FSM with notice adequate to give them an opportunity to present evidence relating to any revived issues at trial. Those issues are set forth in the Defendant Association's motion for clarification. Leddy v. Standard Drywall Inc., 875 F.2d 383, 386 (2d Cir. 1989) (finding that the trial judge "did not give appellants clear notice that he was revising that order nor an adequate opportunity to adjust the presentation of their case once he decided not to follow the order"). See also Alberty-Vèlez v. Corporación de Puerto Rico para la Difusión Pública, 242 F.3d 418 (1st Cir. 2001) (Federal appeals court reverses Federal District Court where no notice is given and party is prejudiced when District Court renders judgment inconsistent with pre-trial findings made in summary judgment).

Having rendered this clarification, the Court will still entertain and will rule on relevant objections made during arguments on further summary judgment or at trial.

IV. FURTHER SCHEDULING

After having consulted with the parties, the Court issues this order with regard to further scheduling pursuant to FSM Civil Rule 16 to help expedite the efficient and timely resolution of this matter.

All discovery, including interrogatories, admissions, production of documents and depositions, shall be completed by November 30, 2011. All pre-trial motions shall be filed by December 23, 2011. The parties shall consult with each other and jointly submit to the Court by December 16, 2011, three possible dates in 2012 for arguments on pre-trial motions, if any, or in the alternative for trial in this matter.