THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Maruwa Shokai Guam, Inc. v. Pyung Hwa 31 ,
6 FSM Intrm. 238 (Pohnpei 1993)

[6 FSM Intrm. 238]

MARUWA SHOKAI GUAM, INC.,
Plaintiff,

vs.

PYUNG HWA 31, PYUNG HWA 33, PYUNG HWA 36,
PYUNG HWA 38, PYUNG HWA 61, IN REM and
SHARON FISHING CO., and PYUNG HWA WONYANG CO.,
IN PERSONAM and QUASI IN REM,
Defendants.

CIVIL ACTION NO. 1993-022

OPINION

Richard H. Benson
Associate Justice

Hearing:  August 16, 1993
Decided:  November 4, 1993

APPEARANCES:
For the Plaintiff:          Daniel R. Del Priore, Esq.
                                     Del Priore & Gumataotao, P.C.
                                     414 West Soledad Avenue
                                     Agaa, Guam 96910

For the Defendant:     Douglas Parkinson, Esq.
 Law Offices of R. Barrie Michelsen
                                     P.O. Box 1450
                                     Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Civil Procedure ) Filings
     Fax transmissions cannot be received for filing.  Maruwa Shokai Guam, Inc. v. Pyung Hwa 31, 6 FSM Intrm. 238, 240 (Pon. 1993).

Civil Procedure ) Motions
     Under the Rules of Civil Procedure a party opposing a motion has ten days to file a response.  Six days may be added if service was by mail.  The time period does not commence running from date of notice for hearing on the motion, but from the date of the motion itself.  

[6 FSM Intrm. 239]

Maruwa Shokai Guam, Inc. v. Pyung Hwa 31, 6 FSM Intrm. 238, 240 (Pon. 1993).

Civil Procedure ) Motions
     Where there is no timely opposition filed after the service of a motion, the opposing party is considered to have consented to the motion.  Maruwa Shokai Guam, Inc. v. Pyung Hwa 31, 6 FSM Intrm. 238, 240 (Pon. 1993).

Civil Procedure
     When a party believes that error has occurred in a trial, its remedy is by way of appeal, not by commencing a second action.  Maruwa Shokai Guam, Inc. v. Pyung Hwa 31, 6 FSM Intrm. 238, 240 (Pon. 1993).

Civil Procedure ) Res Judicata
     The doctrine of res judicata is recognized in the FSM.  The primary reason for its value is repose.  The general rule is that a final decision on the "merits" of a claim bars a subsequent action on that same claim or any part thereof, including issues which were not but could have been raised as part of the claim.  A plaintiff must raise his entire "claim" in one proceeding.  "Claim" is defined to cover all the claimant's rights against the particular defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.  Maruwa Shokai Guam, Inc. v. Pyung Hwa 31, 6 FSM Intrm. 238, 241 (Pon. 1993).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This case came before me on August 16, 1993 for a hearing on the defendants' motion for summary judgment filed and served on July 8, 1993. Notice of the hearing was served July 27, 1993 and filed July 28, 1993.

     This action seeks the recovery of some $55,000.00 for necessaries furnished by the plaintiff to the defendants pursuant to an agency agreement during the period from November 2, 1991 to January 19, 1993.  The complaint alleges three causes of action:

     1)  a maritime lien according to the common law of the FSM and seafaring nations,

     2)  a maritime lien according to the Federal Maritime Lien Act of the United States, and

     3)  breach of contract.

     The answer contains a general denial and the affirmative defenses allege res judicata, merger, and an improper splitting of plaintiff's cause of action.  The affirmative defenses arise out of FSM Civil Case No. 1992-090 filed August 7, 1992 entitled, Maruwa Shokai (Guam), Inc. v. Pyung Hwa 31, Pyung Hwa 33, Pyung Hwa 36, Pyung Hwa 38, Pyung Hwa 61, Pyung Hwa 63, Sharon 31 and Sharon 33 In Rem and Sharon Fishing Co., and Pyung Hwa Wonyang Co., In Personam and Quasi In Rem.  Judgment for the plaintiff in that case was entered March 11, 1993.

PRELIMINARY CONSIDERATION
     At the hearing the defendants appeared by counsel.  The plaintiff did not appear.  On August 5, 1993 plaintiff had sent by fax a motion for a continuance, but the motion was never

[6 FSM Intrm. 240]

filed.  The motion is considered abandoned.

     On August 11, 1993 the plaintiff sent by fax its opposition to the motion for summary judgment supported by the affidavit of the plaintiff's counsel in case No. 1992-090, an application for an enlargement of time to file the opposition, and a statement that the parties had agreed to submit the matter without oral argument.

     Fax transmissions cannot be received for filing.  FSM Civ. R. 5(e); General Court Order 1990-1.  The pleadings named in the foregoing paragraph were received and filed on August 17, 1993, the day after the hearing.

     Concerning the timeliness of the opposition:  the plaintiff's position is that the 10 days provided for in the rules did not start to run until the notice of the hearing was received; and that this is so because the defendants did not file and serve the notice with their motion, as required by FSM Civil Rule 6(d).

     Rule 6(d) does not support this position.  It reads, "The party opposing the motion shall not later than 10 days after the service of the motion upon that party, file and serve responsive papers."  Six days is added to the 10 day period in this case because the motion was served by mail.  FSM Civ. R. 6(e).
 
     The defendants are therefore correct in their position that since no timely opposition was made after the service of the motion on July 8, 1993, the plaintiff is considered to have consented to the motion.  I note again that no motion for an enlargement was filed by August 16, so there was nothing to act upon as of the hearing scheduled for that date.

REASONING
     In civil case number 1992-090 referred to above, the plaintiff sought recovery of the balance owed for necessaries furnished the defendant in the period June 1991 to June 1992.  All the defendants in the present case were defendants in the earlier case; the present case sets forth the same three causes of action as were alleged in the earlier case.

     In the earlier case the plaintiff obtained partial summary judgment declaring that it was entitled to a maritime lien on each vessel for which an outstanding balance for necessaries existed.  Trial was held on the question of those balances on the six Pyung Hwa vessels (five of which are defendants in the present case).  Judgment was entered for those balances.  That judgment has been satisfied.

     Because the opposition from the plaintiff was based in large part on the alleged action of the court, that opposition has been considered.  By affidavit the plaintiff states that in the first case I refused to permit it to introduce additional invoices.  Plaintiff fails to provide a partial transcript to reflect what transpired, and does not describe the circumstances of the refusal.  The plaintiff in its opposition further states that the present case is filed in order to litigate those invoices.

     Had the plaintiff considered that error occurred in the earlier trial, its remedy was by way of appeal, not by a second action.  Buchanan v. General Motors Corp., 158 F.2d 728, 730 (2d Cir. 1947).

     A search of the record by the court staff determined that the proffer of the overlooked

[6 FSM Intrm. 241]

invoices ) represented to total $94,000.00 ) occurred after the close of the evidence and after closing argument.  The proffer was made when the court was announcing its decision (after considering the matter under submission for some five or six hours).

     No motion to amend was made at any time by the plaintiff.

     The plaintiff invites me to apply equitable principles to permit these claims to be heard.  I find none to warrant such a step.  The claims of the present case are included in a statement from the plaintiff to the defendants dated February 25, 1993 and embrace necessaries furnished (as noted earlier) between November 2, 1991 and January 19, 1993.  All these dates are substantially prior to trial (March 9 and 10, 1993).

     Furthermore the plaintiff through the testimony of its chief executive officer had introduced in evidence for each of six Pyung Hwa vessels the invoices which covered the entire period of the contract between the plaintiff and the defendants. The officer then testified as to the amount unpaid on each vessel.  The present case is based on invoices overlooked by the plaintiff.

     We have earlier stated the doctrine of res judicata is recognized in the FSM and set forth the primary reason for its value ) repose.  United Church of Christ v. Hamo, 4 FSM Intrm. 95, 106, 107 (App. 1989).

     In Container Transport International, Inc. v. United States, 468 F.2d 926 (Ct. Cl. 1972), the court, overruling prospectively an earlier case, held that res judicata was available as a defense to a second action based on the same bills of lading as had been the subject to an earlier suit.  The court stated the general rule as follows:

     The general rule is, of course, that a final decision on the "merits" of a claim bars a subsequent action on that same claim or any part thereof, including issues which were not but could have been raised as part of the claim.

Id. at 928.

     The modern trend with respect to the defense of former adjudication is to insist, first, that a plaintiff raise his entire "claim" in one proceeding, and second, to define "claim" to cover all the claimant's rights against the particular defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.

Id. at 928-29.

     I therefore conclude that the plaintiff is precluded from bringing the second claim and the defendants are entitled to summary judgment in their favor together with reasonable attorney's fees provided for in the agency agreement.

     The defendants are asked to submit a proposed judgment approved as to form by the plaintiff.

*    *    *    *
                                                                                                                                                                                                                                                                                                           
_Fw| sX_YDJ3_FSyjsuXZ[_EooOvXYF6)wX[4[IfxX _D7 z_Fk)zXZE;{XYF|XZYeFi}X_4D3`^Fn6XZV EĉXYIFgZX ^OFWX_YC_GFt'bXY|Fی XZ;kEXX[4[I_X _D_FXY|F #XYI}-X ^OF@X_YD]i_F#XYEiWXYFhX[4[ĪAX _D6[KKlX \&DD_J@.#X \&Dy^ZJ|1"X ^DyZ2F&FXY|FšXYF֣ͥX[Dȟ\[kFbu;)XYXD#I[C FPXYXD&[C F&XZ;E|X_ tDN_7DX\,B[F_.XY Cug[C7FO1XYE XYLªX; ZRDࣂZYF\wXY|FiUXYFA~%X^D!ZX[FC*[C F%XYXD[C7F9^XZRE fXYKVGK^X \=U$/DX-Q