THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Pohnpei v. Kailis ,
6 FSM Intrm. 619 (Pohnpei 1994)

[6 FSM Intrm. 619]

STATE OF POHNPEI, CAROLINE FISHERIES CORPORATION,
POHNPEI STATE ECONOMIC DEVELOPMENT AUTHORITY
and NATIONAL FISHERIES CORPORATION,
Plaintiffs,

vs.

THEODOSIOS GEORGE KAILIS and
TUNA DEVELOPMENT COMPANY PTY., LTD.,
Defendants.

CIVIL ACTION NO. 1994-059

MEMORANDUM OF ORDER

Richard H. Benson
Associate Justice

Hearing:  October 13, 1994
Decided:  December 28, 1994

APPEARANCES:
For the Plaintiffs:          Fredrick L. Ramp, Esq.
                                       P.O. Box 1480
                                       Kolonia, Pohnpei FM 96941

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

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HEADNOTE

Civil Procedure ) Summary Judgment
     Where the resolution of the legal questions raised by a summary judgment motion will not perceptibly shorten the trial, and a determination at trial of the fact issues may eliminate the need for deciding the legal questions which the motion raises, a court may exercise its discretion to reserve judgment on the motion until after trial.  This exercise of discretion is even more appropriate where the legal issues raised involve constitutional adjudication because unnecessary constitutional adjudication is to be avoided.  Pohnpei v. Kailis, 6 FSM Intrm. 619, 620 (Pon. 1994).
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[6 FSM Intrm. 620]

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     Defendants' motion for summary judgment is before me.  The motion seeks summary judgment only on the first three causes of action of the plaintiffs' Complaint.  Those causes of action allege that the defendant Kailis is personally liable to the plaintiffs because defendant Kailis was an incorporator of plaintiff Caroline Fisheries Corporation (CFC) and CFC began engaging in business before completing the formalities required by the Corporation Regulations. Plaintiffs' Complaint thus alleges that this failure makes defendant Kailis liable to them as debtors of CFC in the same manner as the defendant in Mid-Pac Constr. Co. v. Senda, 4 FSM Intrm. 376, 384-85 (Pon. 1990) (construing I FSM Reg. Corporations, Partnerships, and Associations pt. 2.7); accord Mid-Pacific Constr. Co. v. Semes (II), 6 FSM Intrm. 180, 187 (Pon. 1993).

     Defendants base their motion for summary judgment on the ground that the regulation (C.P.A. Reg. pt. 2.7) that creates this liability is unconstitutional. Because of this I invited the parties to comment on the applicability to this motion of the principle that unnecessary constitutional adjudication is to be avoided.

     Defendants' response conceded that under Rule 56 the court may defer ruling on a summary motion judgment motion until a later time and gave a lengthy list of reasons why it would be preferable to decide this motion now.  I need not discuss the reasons given as I am satisfied that the proper exercise of my discretion is to reserve my ruling on this motion.

     This exercise of discretion is appropriate where the "resolution of the legal questions raised by the [summary judgment] motion will not perceptibly shorten the trial [and] . . . a determination at trial of the fact issues may eliminate the need for deciding the legal questions which defendants' motion raises."  United States ex rel. Greenville Equipment Co. v. United States Casualty Co., 180 F. Supp. 715, 717 (D. Del. 1960).  Cf. 10A Charles A. Wright et al., Federal Practice and Procedure 2728, at 192 & n.28 (1983).  My exercise of discretion is even more appropriate where the legal issues raised involve constitutional adjudication.  Cf. Jonah v. FSM, 5 FSM Intrm. 308, 313 (App. 1992) ("[u]nnecessary constitutional adjudication is to be avoided") (quoting FSM v. Edward, 3 FSM Intrm. 224, 230 (Pon. 1987)).

     Therefore, because the resolution of the other seven causes of action in the plaintiffs' Complaint may eliminate the need for the constitutional adjudication that the defendants seek I will exercise my discretion to reserve my ruling on this motion until after trial.
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