Cite as Bank of the FSM v. Kengin ,
7 FSM Intrm. 381 (Yap 1996)

[7 FSM Intrm. 381]




CIVIL ACTION NO. 1994-3006


Martin Yinug
Associate Justice

Decided:  January 25, 1996

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

For the Defendant:     pro se

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[7 FSM Intrm. 382]

Civil Procedure ) Summary Judgment; Judgments
     An order granting summary judgment does not constitute a judgment.  Before an adjudication can become an effective judgment, the judgment must be set forth in writing on a separate document, and the judgment so set forth must be entered in the civil docket.  Bank of the FSM v. Kengin, 7 FSM Intrm. 381, 382 (Yap 1996).

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MARTIN YINUG, Associate Justice:
I.  Introduction
     On January 19, 1996, the Court signed and entered an Order finding the defendant, James Kengin, in Contempt of Court, and an Order of Incarceration.  The Court found Kengin in contempt for failing to comply with an Order in Aid of Judgment signed on February 14, and filed on February 15, 1995.  Since then, the Court examined its own file on this matter, and finds grounds to vacate the orders of contempt and incarceration.

II. Law and Analysis
     The Court granted the plaintiff, Bank of the Federated States of Micronesia ("Bank of the FSM") summary judgment by Order and Memorandum of Decision signed on July 20, 1994, and entered on September 28, 1994.  However, there is no indication in the Order granting summary judgment of the amount that the Bank of the FSM is entitled to claim from Kengin.  Thereafter, there was no separate entry of judgment for the Bank of the FSM.

     Rule 58 of the FSM Rules of Civil Procedure governs the entry of judgment.  Rule 58 provides in pertinent part:  "Every judgment shall be set forth on a separate document.  A judgment is effective only when so set forth and when entered as provided in Rule 79(a)."  FSM Civ. R. 58.  Rule 79(a) concerns the Civil Docket.  The Court has found no cases in Micronesia interpreting Rule 58.  Accordingly, the Court looks to interpretations of the Federal Rules of Civil Procedure in use in courts in the United States, from which our FSM rules derive.  FSM v. Ponape Builders Constr., Inc., 2 FSM Intrm. 48, 52 (Pon. 1985).

     No separate entry of judgment appears in the Court file on this matter, only the order granting summary judgment.  Under U.S. law, a ruling granting summary judgment is not by itself a judgment.  Calmaquip Eng'g W. Hemisphere Corp. v. West Coast Carriers, Ltd., 650 F.2d 633 (5th Cir. 1981).  "Two requirements must be met before an adjudication becomes an effective judgment: (1) the judgment must be set forth in writing on a separate document, and (2) the judgment so set forth must be entered in the civil docket as provided by rule 79(a)."  6A James W. Moore et al., Moore's Federal Practice   58.02, at 58-58 (2d ed. 1983).  On review of the Court's own file on this matter, it is clear that the summary adjudication did not become an effective judgment.  Entry of judgment should be done forthwith. It is therefore appropriate to direct that the Clerk enter judgment nunc pro tunc.

     Since there is no judgment, there was no ground for the Court to issue an Order in Aid of Judgment.  The Order in Aid of Judgment is hereby vacated as premature. Without an Order in Aid of Judgment, there is no order by which Kengin may be held in contempt.  The orders of contempt and

[7 FSM Intrm. 383]

incarceration are therefore vacated.

III.  Order
     It is hereby Ordered:

     1.  The Clerk of Court is directed to enter judgment nunc pro tunc in favor of the plaintiff, Bank of the Federated States of Micronesia, in the principal amount of $15,139.86.  Entry of judgment shall be on the date so entered, but is deemed effective to September 28, 1994.

     2.  The Order in Aid of Judgment signed on February 14, and filed on February 15, 1995, is vacated.

     3.  The Order Finding Defendant in Contempt and Order of Incarceration, signed on January 18, and filed on January 19, 1996, are vacated.
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