THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as FSM v. Yue Yuan Yu No. 346,
7 FSM Intrm. 162 (Chuuk 1995)

[7 FSM Intrm. 162]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

YUE YUAN YU NO. 346, a foreign Fishing Vessel,
WU YONG HUA, GUANGDONG P. FISHERIES, a Foreign Company,
and TING HONG OCEANIC ENTERPRISES, LTD.,
Defendants.

CIVIL ACTION NO. 1994-1054

ORDER

Richard H. Benson
Associate Justice

Decided:  May 17, 1995

APPEARANCES:
For the Plaintiff:            Carole Rafferty, Esq.
                                       Office of the FSM Attorney General
                                       P.O. Box PS-105
                                       Palikir, Pohnpei FM 96941

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

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HEADNOTES
Criminal Law and Procedure ) Dismissal
     A dismissal pursuant to FSM Crim. R. 48(a) is granted without prejudice and by leave of court.  In considering whether to granted leave, a court must find that the dismissal is in the public interest.  Factors among those customarily considered are whether the dismissal involved any harassment of the defendants and whether a bona fide reason, such as insufficient evidence to obtain a conviction, existed for the dismissal.  FSM v. Yue Yuan Yu No. 346, 7 FSM Intrm. 162, 163 (Chk. 1995).

Civil Procedure ) Res Judicata and Collateral Estoppel
     When dismissal of a related criminal case is without prejudice, there is no judgment on the merits.  Therefore the doctrines of res judicata and collateral estoppel, which rely on an underlying final judgment, cannot be applied to the same matters in a civil case.  FSM v. Yue Yuan Yu No. 346, 7 FSM Intrm. 162, 164 (Chk. 1995).

[7 FSM Intrm. 163]
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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This case is before me on the motion of the defendants for a dismissal of paragraphs 11 and 12 of the amended complaint on the ground that the dismissal of the information against the defendants in a related criminal case was res judicata and collaterally estopped the FSM from pursuing the same matters in this civil action.

      Because the parties should know the motion's outcome in order to prepare for trial set for May 25th, and because the extensive memorandums satisfy me that I have the full benefit of the parties' views on the matters raised in the motion, I decide the motion now and without oral argument.  The timing and manner of my decision is unaffected by the FSM Assistant Attorney General's letter of May 11, 1995.

     This action was commenced on October 12, 1994 with the filing of the complaint. The information in the criminal case (numbered 1994-1503) was filed in this court on October 11, 1994.  On the motion of the FSM in open court on October 25, 1994, the criminal case was dismissed, and the order entered later the same day pursuant to FSM Crim. R. 48(a).  The FSM represented that the dismissal was based on the "degree of proof."  I understood this to mean that it did not believe it could establish its case beyond a reasonable doubt.  The FSM further represented that it did not intend to bring any further criminal actions against the defendants for the same incidents.

     The defendants contend that the dismissal of the criminal case operated as a formal judgment on the merits.  They also state that the FSM's assertion that it would not re-file against the defendants shows that it felt that the dismissal was final.

     Our Rule 48(a) is adopted from Rule 48 of the Rules of Criminal Procedure of the United States.  The applicable part of each is quoted below:

FSM Rule
(a) By attorney for Government.  The attorney for the government may by leave of court file a dismissal of an information or complaint and the prosecution shall thereupon terminate.

U.S. Rule
(a) By attorney for Government. The Attorney General or the United States attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate.

     The interpretation of this rule by the courts of the United States is at least persuasive in the interpretation to be given to our rule.  Andohn v. FSM, 1 FSM Intrm. 433, 441, (App. 1984).  In the United States, a Rule 48(a) dismissal is without prejudice.  3A Charles A. Wright, Federal Practice and Procedure 811 (1982); 8B James W. Moore et al., Moore's Federal Practice 48.02[3] (2d ed. rev. 1990). Nothing before me would cause me to give a different interpretation to our rule.

     In considering whether leave to dismiss is to be granted, it must be found that the dismissal is in the public interest.  FSM v. Ocean Pearl, 3 FSM Intrm. 87, 91 (Pon. 1987).  The reasons set out by the FSM on October 25th, that it did not intend to re-file and that there was insufficient evidence to obtain a conviction, indicate that the dismissal did not involve any harassment of the defendants and

[7 FSM Intrm. 164]
 
that a bona fide reason existed for the dismissal.  These factors are among those customarily considered by a court in deciding whether a Rule 48(a) motion is in the public interest.  3A Wright, supra, 812; 8B Moore et al., supra, 48.02[1] and [2]. I cannot use the same factors, and the dismissal itself, to conclude that a judgment on the merits exists.  I conclude that the dismissal of the related criminal case was without prejudice, and there was no judgment on the merits.  The doctrines of res judicata and collateral estoppel rely on an underlying final judgment.  See, e.g., Ungeni v. Fredrick, 6 FSM Intrm. 529, 531, 1 CSR 14, 15-16 (Chk. S. Ct. App. 1994); 1B James W. Moore et al., Moore's Federal Practice 0.405[1] (2d ed. 1988).  Therefore res judicata and collateral estoppel cannot apply here.

     The motion is accordingly denied.

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