THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as FSM Dev. Bank v. Rodriguez Corp.,
2 FSM Intrm. 128 (Pon. 1985)

[2 FSM Intrm. 128]

FEDERATED STATES DEVELOPMENT BANK,
Plaintiff,

vs.

RODRIGUEZ CORPORATION,
Defendants.

Civ. 1984-052
Cite as 2 FSM Intrm. 128

OPINION
Before Edward C. King
Chief Justice
November 21, 1985

APPEARANCES:
     For the Plaintiff:               Maketo Robert
                                               Attorney-at-Law
                                               Kolonia, Pohnpei 96941

     For the Defendants:       Mary Elieisar
                                              Attorney-at-Law
                                              MLSC
                                              Kolonia, Pohnpei 96941

[2 FSM Intrm. 129]

HEADNOTES
Civil Procedure
     Where the non-moving party admits allegations contained in the motion for summary judgment and there is nothing in the non-moving party's answer or its response to the motion that suggests any factual issue in dispute, the moving party is entitled to summary judgment on those uncontested allegations.  FSM Dev. Bank v. Rodriguez Corp., 2 FSM Intrm. 128, 130 (Pon. 1985).

Burden of Proof; Civil Procedure
     When a party to a civil action seeks summary judgment on the question of liability, it must initiate the inquiry even as to affirmative defenses.  The moving party has the burden of clearly establishing the lack of any triable issue of fact and this burden extends to affirmative defenses as well as to the moving party's own positive allegations.  FSM Dev. Bank v. Rodriguez Corp., 2 FSM Intrm. 128, 130 (Pon. 1985).

Burden of Proof; Civil Procedure
     When a party moves for summary judgment on an affirmative defense, putting forward arguments and evidence indicating that there is no material fact at issue and that the defense is insufficient as a matter of law, the opposing party must produce some evidence to rebut the moving party's evidence or the moving party is entitled to partial summary judgment.  FSM Dev. Bank v. Rodriguez Corp., 2 FSM Intrm. 128, 130 (Pon. 1985).

Burden of Proof; Civil Procedure
     Where the party moving for partial summary judgment has done nothing to show that a factual basis for the opposing party's affirmative defenses is lacking or that the defenses are insufficient as a matter of law, the defenses remain at issue and the moving party is not entitled to partial summary judgment.  FSM Dev. Bank v. Rodriguez Corp., 2 FSM Intrm. 128, 131 (Pon. 1985).

*        *        *       *

COURT'S OPINION
EDWARD C. KING, Chief Justice:
     This lawsuit was filed by the Federated States Development Bank to enforce a judgment entered in 1969 by the Trust Territory High Court in favor of the government of the Trust Territory of the Pacific Islands and against the defendant, Rodriguez Corporation.

     The development bank, a financial institution created by special legislation, 30 F.S.M.C. 101 et seq., "to provide the people of the Federated States of Micronesia with special facilities required to meet the needs of their developing economy," has moved for summary judgment.

     Rodriguez Corporation is a corporation formed under Trust Territory law,

[2 FSM Intrm. 130]

which formerly operated the Ginger House Hotel in Pohnpei.  The corporation has in its answer pleaded the affirmative defenses of equitable estoppel and accord and satisfaction.  In its opposition to the motion for summary judgment, the corporation also seeks to raise the defense of laches.

I.
     The bank in its motion shows, through affidavit and documents, that its claim here is based on the earlier judgment of the Trust Territory High Court, that the Trust Territory Government assigned those rights to the bank, and that the amount owing in the judgment was $50,469.69 after the last payment was made, on October 3, 1979.  The corporation's answer admits that the judgment was issued against it, and there is nothing in the corporation's answer or its response to the motion for summary judgment that suggests any factual issue as to the other claims made by the bank.  The bank is therefore entitled to summary judgment as to those matters.  1

II.
     However, the summary judgment is partial and does not resolve the question of liability. Plaintiff's motion for summary judgment, and its supporting affidavit and other documents, are silent concerning the affirmative defenses pled by the corporation.

     When a case proceeds to trial, the burden of going forward with evidence as to affirmative defenses is normally on the defendant.  However, when the plaintiff seeks summary judgment on the question of liability, the plaintiff must initiate the inquiry even as to affirmative defenses.  The party moving for summary judgment has the burden of clearly establishing the lack of any triable issue of fact.  FSM v. Ponape Builders Constr. Inc., 2 FSM Intrm. 48, 55 (Pon. 1985).  This burden extends to affirmative defenses as well as to the plaintiff's own positive allegations.

     When plaintiff moves for summary judgment on an affirmative defense, putting forward arguments and evidence indicating that there is no material fact at issue and that the defense is insufficient as a matter of law, the defendant must produce evidence or plaintiff is entitled to partial summary judgment. 2

[2 FSM Intrm. 131]

     The Federated States Development Bank and done nothing to show that a factual basis for the corporation's affirmative defenses is lacking or that the defenses are insufficient as a matter of law. These defenses remain at issue and the bank is not entitled to summary judgment as to liability.

Conclusion
     The bank is entitled to partial summary judgment as to the existence of the Trust Territory High Court judgment and the fact that the bank is the successor in interest of any rights the Trust Territory Government had under the judgment.  I find also that the last payment made was on October 3, 1979 and that the amount then owing was $50,469.69.

     However, this amount and any liability of the corporation in this case is subject to the affirmative defenses.  An order shall issue to this effect.

*        *        *        *
Footnotes:
 
 1.  FSM Civ. R. 56(e)says:  "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.  If he does not so respond, summary judgment, if appropriate, shall be entered against him." (Back to opinion)

 2.  The United States Federal Courts' Rules of Civil Procedure, similar to the rules here concerning summary judgment, have been interpreted in the same way.  C. Wright, A. Miller & M. Kane, 10A Federal Practice and Procedure 2734 (1983); Kouba v. Allstate Ins. Co., 523 F. Supp. 148, 160 (E.D. Cal. 1981). (Back to opinion)
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