FSM SUPREME COURT TRIAL DIVISION
Cite as Damarlane v. FSM, 1 FSM Intrm. 10 (Pon. 1997)

[8 FSM Intrm. 10]

IGNACIA DAMARLANE, KADALINO DAMARLANE,
BENSIS DAMARLANE, GREGORIO DAMARLANE,
JOAQUIM CANTERO and MATTEO PRIMO,
Plaintiffs,

vs.

FEDERATED STATES OF MICRONESIA
GOVERNMENT, POHNPEI STATE GOVERNMENT
and POHNPEI TRANSPORTATION AUTHORITY,
Defendants.

CIVIL ACTION NO. 1995-121

ORDER AND MEMORANDUM

Richard H. Benson
Associate Justice

Decided:  January 13, 1997     

[8 FSM Intrm. 11]

For the Plaintiffs:        Mary Berman, Esq.
                                     P.O. Box 163
                                     Kolonia, Pohnpei FM 96941

For the Defendant:     Carole Rafferty, Esq.
(FSM)                          Assistant Attorney General
                                     Office of the FSM Attorney General
                                     P.O. Box PS-105
                                     Palikir, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Civil Procedure ) Parties
     The substitution of a party upon the death of a party plaintiff requires an affirmative showing that the cause of action survived the death.  Damarlane v. FSM, 8 FSM Intrm. 10, 12 (Pon. 1997).

Civil Procedure ) Parties
     When a party has died, a statement suggesting the party's death may be placed upon the record and served in compliance with the rules for service of motions, and if a motion for substitution is not made within 90 days afterward then the action shall be dismissed as to the deceased party.  Damarlane v. FSM, 8 FSM Intrm. 10, 12 (Pon. 1997).

Civil Procedure ) Parties
     Rule 25(a) clearly contemplates appointment of legal representatives, such as an executor or an administrator for substitution for a deceased party.  Relatives of the deceased who are not legal representatives cannot be substituted as parties.  The identity of an administrator is not presumed from an intestacy statute.  There must be some designation by a court.  The proper party for substitution is either the executor or the administrator of the deceased's estate ("representative"), or, if the estate has been distributed by the time the motion to substitute is made, the distributee ("successor").  Damarlane v. FSM, 8 FSM Intrm. 10, 12 (Pon. 1997).

Civil Procedure ) Service
     Service of a suggestion of death and a motion to substitute a party for a deceased party, if made by a party's attorney, must be made on the other parties (may be done through their attorneys) and personally (not upon their or the decedent's attorney) upon the nonparties who are to be substituted.  The suggestion and motion can also be made by an attorney for the estate's representative, naming the estate's representative or decedent's successors, and served on all the parties' attorneys.  An attorney for a decedent cannot file a suggestion of death or motion to substitute unless she has the status as a legal representative of the deceased party's estate.  Damarlane v. FSM, 8 FSM Intrm. 10, 13 & n.2 (Pon. 1997).

Civil Procedure ) Sanctions
     Merely because a motion is legally deficient in some respect does not make it a frivolous motion subject to sanctions.  Damarlane v. FSM, 8 FSM Intrm. 10, 13 (Pon. 1997).

[8 FSM Intrm. 12]

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     On October 29, 1996, the plaintiffs' attorney, Mary Berman, filed a Suggestion of Death on the Record, and Motion to Substitute Parties Plaintiff, which stated that plaintiff Matteo Primo had passed away without a will and moved to substitute statutory heirs as parties plaintiff.  On November 7, 1996, defendant FSM filed an opposition.  The grounds were that no showing had been made that Matteo Primo's claims survived his death, that the parties to be substituted had not been properly identified, and that the motion had not been properly served on the persons to be substituted.  Filed with the opposition was FSM's Motion for Sanctions under Rule 11.  The basis for this motions was the deficiencies in the substitution motion pointed out in the opposition and the allegation that the substitution motion had been brought without any thought or honest analysis.  Ms. Berman then filed a Reply to Opposition to Substitution; Opposition to Motion for Sanctions; and Cross-Motion for Sanctions.  The ground for Ms. Berman's cross motion was that Rule 11 movants should argue and demonstrate that the facts, the law, or both were misrepresented by the person sought to be sanctioned and because the FSM had not done so its own motion for sanctions was entirely unwarranted under existing law and thus sanctionable.  The FSM has filed its opposition to the cross motion for sanctions, and Ms. Berman has replied to it.  These motions are now before me for decision.

Motion for Substitution of Parties Plaintiff
     The substitution of a party upon the death of a party plaintiff requires an affirmative showing that the cause of action survived the death. E.g., Roberson v. Wood, 500 F. Supp. 854, 858 (S.D. Ill. 1980).1  I note that the motion states that the cause of action arose out of the decedent's ownership of land. Although sparse, I think this may be taken as an allegation that the claim survives.  I think I may presume, until proven otherwise, such a claim would survive death.  Ownership rights in land are generally inheritable.  Furthermore, the plaintiffs, in their complaint and additional court-ordered statement in response to the grant of a motion for a more definite statement, appear to allege a constitutional tort.  This is sufficient to meet an initial burden that the claim survives and shift the burden to the opponent.  A defendant may, if so advised, move for summary judgment if it thinks that Matteo Primo's claim against it does not survive his death.

     When a party has died, a statement suggesting the party's death may be placed upon the record and served in compliance with the rules for service of motions, and if a motion for substitution is not made within 90 days afterward then "the action shall be dismissed as to the deceased party."  FSM Civ. R. 25(a)(1).  The motion proposes that "Matteo Primo's heirs" be substituted for Matteo Primo as plaintiffs. No specific persons are named.  The FSM objects on the ground that the persons to be substituted as parties are not identified. "Rule 25(a) clearly contemplates appointment of legal representatives, such as an executor or an administrator." Roberson, 500 F. Supp. at 859.  Relatives of the deceased who are not legal representatives cannot be substituted as parties.  Id.  The identity of an administrator is not presumed from an intestacy statute.  Madison v. Vintage Petroleum, Inc., 872 F. Supp. 340, 342 (S.D. Miss. 1994).  There must be some designation by a court. Marcano v. Offshore Venezuela, C.A., 497 F. Supp. 204, 208 (E.D. La. 1980).  The proper party for substitution is either the executor or the administrator of the deceased's estate ("representative"), or, if the estate has been distributed by the time the motion to substitute is made, the distributee ("successor"). Madison, 872 F. Supp. at 342-43.  The suggestion of death and motion for substitution are thus deficient in that they do not name a proper party to be substituted.

[8 FSM Intrm. 13]

     For similar reasons service was also deficient because the persons, not a party, who are to be substituted were not served.  Because the suggestion and motion were made by the plaintiffs' attorney2  the rule required that service had to be made on the defendants (may be done through their attorneys) and personally (not upon their or the decedent's attorney) upon the nonparties who are to be substituted. Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir. 1985).  The defendants were served, but the nonparties were not, no doubt because they were unnamed. The suggestion and motion could also have been made by an attorney for the estate's representative and served on all the parties' attorneys (both plaintiffs' and defendants'), FSM Civ. R. 25(a)(1), but it was not.  (It was made by the plaintiffs' attorney.)  If it had been it would have named the estate's representative or decedent's successors.

     I am therefore sua sponte holding my ruling on the motion in abeyance and granting an enlargement of time within which interested persons may seek the appointment of an executor or administrator of Matteo Primo's estate by the state court, if they have not already done so.  Alternatively, if the estate has already been distributed then the successors would be those persons named on the certificates of title [89-A-02 and 89-A-03] for property held by Matteo Primo before his death and ownership of which was the basis for his claim.  If the motion is not amended to include the name(s) of the representative or successors of Matteo Primo's estate within 45 days of entry of this order the motion will be denied.  Cf. Madison, 872 F. Supp. at 343 (person given 30 days to open an estate in chancery court and obtain appointment as administrator); Marcano, 497 F. Supp. at 209 (person given 60 days to obtain proper authorization from Venezuelan court so as to qualify as legal representative of deceased party).  The amended suggestion of death and motion to substitute must be served personally, in compliance with Rule 4, on whomever is appointed legal representative of Matteo Primo's estate or on whomever are the successors.

FSM's Motion for Sanctions
     The FSM seeks Rule 11 sanctions for the motion to substitute based on that motion's legal deficiencies.  The FSM also alleges that the motion had been brought by Mary Berman without any thought or honest analysis.  Merely because a motion was legally deficient in some respect does not make it a frivolous motion. Otherwise, every time a motion is denied the movant might be subject to sanctions.  I conclude that a motion to substitute a party for a deceased plaintiff, as a general proposition, is not frivolous, and is well grounded in fact (assuming the party has actually died) and warranted by existing law (e.g., FSM Civ. R. 25).  The FSM's motion for sanctions therefore must be rejected.

Plaintiffs' Cross-Motion for Sanctions
     Plaintiffs contend that the FSM's motion for sanctions was not well-grounded in fact or warranted by existing law and therefore sanctionable.  They do not contend that it was brought for an improper purpose.  The FSM's motion was based on a number of alleged deficiencies in the plaintiffs' filing.  Most of the procedural deficiencies were real.  Because of this I conclude that the FSM's Rule

[8 FSM Intrm. 14]

11 motion, though ill-advised, is not frivolous or sanctionable.  The cross-motion for sanctions is therefore denied.
 
Footnotes:
 
 1.  When an FSM Rule of Civil Procedure is identical to a U.S. Federal Rule of Civil Procedure and the FSM Supreme Court has not previously construed the FSM Rule, it may look to the U.S. federal courts for guidance in interpreting the rule.  Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 444 (App. 1994).

 2.  An attorney for a decedent cannot file a suggestion of death or motion to substitute unless she has the status as a legal representative of the deceased party's estate.  Boggs v. Dravo Corp., 532 F.2d 897, 900 (3d Cir. 1976).  So Ms. Berman could only have signed the paper in her capacity as attorney for the other plaintiffs.
                                                                                                                                                                                                                                                                                                           
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