[11 FSM Intrm. 622]

APPEARANCES:

* * * *

HEADNOTES

[FSM Intrm. 623]

* * * *

[FSM Intrm. 625]

COURT’S OPINION

MARTIN G. YINUG, Associate Justice:

     On April 22, 2003, the fishing vessel KSVI No. 3, Kosrae Sea Ventures, Inc. (KSVI), the National Fisheries Corporation (NFC), and the State of Pohnpei, filed their joint Motion for Substitution of Parties. The motion contends that KSVI No. 3, NFC, and KSVI, are the only appellees in this appeal and asks that Pohnpei, as the real party in interest, be substituted for these three appellees. The ground for this request is that the three appellees have settled all claims with the appellant and have no interest in the decision appealed and the issues presented by the appellant but that Pohnpei has a direct interest in the appeal’s outcome.

I. Background

     A brief review of the record reveals the following. In April, 1997, KSVI No. 3, owned by KSVI and managed by NFC, ran aground on a reef in Pohnpei off the coast of Kitti Municipality. On March 17, 1998, the State of Pohnpei, seeking damages for this grounding, filed suit against the KSVI No. 3, and NFC. This suit was docketed as Civil Action No. 1998-009. Then on November 13, 1998, the Kitti Municipal Government filed suit against KSVI No. 3, NFC, and KSVI seeking damages for the same occurrence. Kitti’s suit was docketed as Civil Action No. 1998-086. On June 17, 1999, the trial court entered an order in both civil actions consolidating them into one case. That order also granted a motion filed in Civil Action No. 1998-086 giving KSVI No.3, NFC, and KSVI leave to file a third party complaint against Pohnpei1, which was filed on July 2, 1999. Pohnpei answered on September 2, 1999. A further order, entered on November 17, 1999, assigned 1998-009 as the consolidated case’s docket number and ordered all future filings to be under that number.

     On February 16, 2001, the trial court ruled that Pohnpei, not Kitti, owned the reef on which the KSVI No. 3 ran aground and the marine resources that grounding may have damaged. Pohnpei v. KSVI No. 3, 10 FSM Intrm. 53 (Pon. 2001). On January 20, 2003, the trial court dismissed Pohnpei’s claims against KSVI No. 3, KSVI, and NFC because they had settled the claims between themselves. Kitti and KSVI No. 3, KSVI, and NFC then filed a stipulated motion for entry of judgment against Kitti. On March 14, 2003, the trial court granted the motion and entered a final judgment. On March 28, 2003, Kitti filed its Notice of Appeal and a Statement of Issues. The issues stated relate solely to the issue of whether Kitti or Pohnpei owned the reef where the KSVI No. 3 ran aground.

II. Appellate Rule 43

     The motion relies on Appellate Rule 43 for the court’s ability to substitute Pohnpei for KSVI No. 3, NFC, and KSVI. That rule is inapplicable. Generally, it allows substitution of parties by their successors in interest, either as a result of a party’s death, FSM App. R. 43(a), a public officer’s

[FSM Intrm. 626]

replacement, FSM App. R. 43(c), or for other causes, FSM App. R. 43(b). Substitution for other causes, 9 James Wm. Moore et al., Moore’s Federal Practice ¶ 243.02[2] n.1 (2d ed. 1990)2 , is for such things as a party’s incompetency, 3B James Wm. Moore et al., Moore’s Federal Practice ¶ 25.07 (2d ed. 1990), or the transfer of an interest, id. ¶ 25.08, or the dissolution, acquisition, merger or similar change of a corporate party, id. ¶ 25.10. See, e.g., Jones v. Board of Governors of Fed. Reserve Sys., 79 F.3d 1168, 1169-70 (D.C. Cir. 1996) (substitution of entity for individual denied when petitioner appealed in his individual capacity and not as officer of the entity sought to be substituted); Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990) (substitution of owner for corporation allowed when corporation dissolved and claims assigned to owner); United Transp. Union v. Interstate Commerce Comm’n, 891 F.2d 908, 909 n.1 (D.C. Cir. 1989) (when case originally brought by union official under his own name but he actually represented the union’s interest and not his own, appellate court substituted the union for the individual), cert. denied, 497 U.S. 1024 (1990); Alabama Power Co. v. Interstate Commerce Comm’n, 852 F.2d 1361, 1366 (D.C. Cir. 1988) (Rule 43(b) substitution by non-party denied although original parties sought to be substituted for had chosen not to continue litigating); Beghin-Say Int’l, Inc. v. Ole-Bendt Rasmussen, 733 F.2d 1568, 1569 (Fed. Cir. 1984) (under Rule 43(b) subsidiary corporation substituted for parent corporation after ownership of patents at issue had been transferred to subsidiary); National Treasury Employees Union v. United States Dep’t of Treasury, 656 F.2d 848, 850-51 & n.23 (D.C. Cir. 1981) (labor union substituted for union member under Rule 43(b) when member was seeking attorneys’ fees on the union’s behalf); Fred Harvey, Inc. v. Mooney, 526 F.2d 608, 611 (7th Cir. 1975) (pursuant to Rule 43(b) landowner substituted for plaintiff appellee business when appellee business’s lease expired and interest thereby transferred to landowner).

     Alabama Power Co. v. Interstate Commerce Comm’n, 852 F.2d 1361 (D.C. Cir. 1988) is instructive. The FSM Supreme Court rule reads: "If substitution of a party in the Supreme Court appellate division is necessary for any reason other than death . . . ." FSM App. R. 43(b). In interpreting identical language (except for the name of the court) in U.S. Appellate Rule 43(b), the Alabama Power court held that the common-sense interpretation of the term "necessary" in Rule 43(b) "means that a party to the suit is unable to continue to litigate, not . . . that an original party has voluntarily chosen to stop litigating." Alabama Power, 852 F.2d at 1366. It further held that the "most natural reading" of Rule 43(b) is that it only permits substitutions "where a party is incapable of continuing the suit, such as where a party becomes incompetent or a transfer of interest in the company or property in the suit has occurred." Id.

     Pohnpei is not a successor in interest to KSVI No. 3, NFC, and KSVI or a transferee of any of their interests. It has been, at all times, a party adverse to their interests. Nor are KSVI No. 3, NFC, and KSVI incapable of continuing suit. Therefore the motion to substitute, as the movants have framed it, must be denied. The movants cannot achieve the goal they seek through Appellate Rule 43(b).

[FSM Intrm. 627]

III. Further Discussion

A. Appellees’ Participation and Obligations

     The court, however, is aware of no authority that would allow it to eliminate appellees at their, or anyone else’s, request. Appellees KSVI No. 3, NFC, and KSVI may think that this imposes an undue burden on them by forcing them to participate in an appeal in which they have no interest. In this, they are quite mistaken. No appellee is forced to do anything in any appeal.

     An appellant must timely file a request for a transcript, FSM App. R. 10(b)(1), or a statement of the issues, FSM App. R. 10(b)(3), a designation of the appendix, FSM App. R. 30(b), and an opening brief, FSM App. R. 12(b), 31(a), with an appendix, FSM App. R. 30(a). An appellant’s failure to comply with these rules may subject its appeal to dismissal. See FSM App. R. 3(a); 27(c); 31(c).

     An appellee, on the other hand, is not subjected to the same burdens. It may supplement the designation of the appendix. FSM App. R. 30(b). If it does not, the appendix stands as designated by the appellant. An appellee is also directed to file its brief within thirty days of service of the appellant’s brief, FSM App. R. 31(a), but the sole consequence of not doing so is that the appellee "will not be heard at oral argument except by permission of the court," FSM App. R. 31(c). An appellee with an interest in an appeal can do nothing3 and take the risk that the appellate court, without the appellee’s input, might decide the appeal in the appellant’s favor when it otherwise might not have. For an appellee with no interest in the appeal and who will not be affected regardless of the result, this is no risk at all.

     Appellees KSVI No. 3, NFC, and KSVI may therefore participate as much, or as little (or not at all) in this appeal, as they wish. They, however, will not be eliminated from the appeal or have another party substituted in their place under Rule 43(b).

B. State of Pohnpei’s Participation

     It appears, however, that Pohnpei will not have to resort to its right to appear as an amicus curiae to participate in this appeal. As noted above, Civil Actions No. 1998-009 and 1998-086 were consolidated into one case on June 17, 1999, which on November 17, 1999 was designated Civil

[FSM Intrm. 628]

Action No. 1998-009. On February 16, 2001, after this consolidation and designation, the trial court decided that Pohnpei, not Kitti, was the owner of the submerged lands on which the KSVI No. 3 ran aground and of the marine resources that grounding may have damaged. Pohnpei v. KSVI No. 3, 10 FSM Intrm. 53, 67 (Pon. 2001). Kitti seeks appellate review of this decision.

     The issue had come before the trial court on Pohnpei’s motion, filed September 17, 1999, to dismiss Kitti’s complaint on the ground that it, not Kitti, was entitled to any damages from the grounding because it, not Kitti, was the owner of the reef, submerged lands, and marine resources affected. Id. at 57. While Pohnpei was granted a summary adjudication that it, not Kitti, was the owner of the reef, submerged lands, and marine resources affected, Kitti’s complaint was not dismissed because it was possible that Kitti might prove damages to other municipal resources. Id. at 67. Kitti and Pohnpei thus remained adverse parties in the consolidated case.

     Pohnpei was thus a party to the decision now on appeal. That would make it already an appellee. The confusion over Pohnpei’s status appears to stem from subsequent trial court events. On January 21, 2002, Pohnpei, KSVI No. 3, NFC, and KSVI, having settled the claims between them, filed a Stipulated Motion for Dismissal of Civil Action No. 1998-009, pursuant to Civil Rule 41(a)(1). This was, of course, ineffective because a Rule 41(a)(1) dismissal must be signed by all the parties who have appeared in the action, see, e.g., Moses v. Oyang Corp., 10 FSM Intrm. 273, 275 (Chk. 2001); Livaie v. Kosrae Sea Ventures, Inc., 10 FSM Intrm. 206, 208 (Kos. 2001); Labra v. Makaya, 7 FSM Intrm. 75, 76 (Pon. 1995), and by then, as a result of the consolidation order, Kitti and KSVI were also parties who had appeared in the action.

      This was followed by the trial court’s January 20, 2003 order, which dismissed with prejudice the claims between Pohnpei and KSVI No. 3, NFC, and KSVI based on their previous stipulation. The order then designated that all future filings in the case be under docket number 1998-086. Regardless of the language it used, the trial court could not have done any more than just dismiss the claims between Pohnpei and KSVI No. 3, NFC, and KSVI because that was all that had been stipulated to.

     A dismissal with prejudice constitutes a judgment on the merits. Cf. Livaie, 10 FSM Intrm. at 209; Union Indus. Co. v. Santos, 7 FSM Intrm. 242, 244 (Pon. 1995); Ittu v. Charley, 3 FSM Intrm. 188, 191 (Kos. S. Ct. Tr. 1987). Judgment can be entered on less than all claims in a case if the court makes an "express determination that there is no just cause for delay" and expressly directs entry of judgment. FSM Civ. R. 54(b).

     The trial court may have expressly dismissed with prejudice Pohnpei’s claims against KSVI No. 3, NFC, and KSVI. But the trial court did not make an express determination that there was no just cause for delay although it could have since the order does contain facts from which the court could have made such a determination, i.e., Pohnpei and KSVI No. 3, NFC, and KSVI had settled their claims a year before and had been awaiting action by Kitti which had not been forthcoming although Kitti had promised it within thirty days of a May 23, 2002 status conference. Both elements must be present to give a partial adjudication final judgment status. "[W]hen either element is absent, even if only because of oversight or a failure to appreciate that the case is one that is within Rule 54(b)," the partial adjudication does not carry final judgment status. 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2660, at 147 (3d ed. 1998). A partial adjudication in a consolidated case generally falls within Rule 54(b). See, e.g., Brown v. United States, 976 F.2d 1104, 1107 (7th Cir. 1992) (when trial court has consolidated two cases for all purposes, a decision disposing of all claims in one of the constituent actions but not the other is not final unless made so pursuant to Rule 54(b)); Sandwiches, Inc. v. Wendy’s Int’l, Inc., 822 F.2d 707, (7th Cir. 1987) ("[i]f the cases have been consolidated for all purposes" then a judgment that does not cover all claims and parties is not final unless trial court has made findings required by Rule 54(b)); Trinity Broadcasting Corp. v. Eller,

[FSM Intrm. 629]

835 F.2d 245, 246 (10th Cir. 1987) ("when independently filed actions have been consolidated for trial, an order of summary judgment disposing of one, but not all, of the claims or suits is not appealable [final] unless and until the [trial] court has certified the order as final pursuant to [Rule] 54(b)"); Ivanov-McPhee v. Washington Nat’l Ins. Co., 719 F.2d 927, 928-30 (7th Cir. 1983) (when only one of ten consolidated cases was dismissed and the cases had been consolidated for all purposes, the dismissal was not a final judgment); Ringwald v. Harris, 675 F.2d 768, 771 (5th Cir. 1982) (cases consolidated for all purposes including trial; when "the consolidation is clearly for all purposes, the provisions of Rule 54(b) must be complied with notwithstanding that the judgment or order in question disposes of all the claims and parties in one of the original actions"); but see Equal Employment Opportunity Comm’n v. Harris Chernin, Inc., 10 F.3d 1286, 1289 (7th Cir. 1993) (when case consolidated for pretrial matters only and expressly not consolidated for trial, judgment in one case was final); Lewis Charters, Inc. v. Huckins Yacht Corp., 871 F.2d 1046, 1048-49 (11th Cir. 1989) (Rule 54(b) requirements did not apply to a dismissal of a case when that case had only been consolidated with another case for limited purposes of hearing and not for all purposes). It appears from the provisions of the trial court’s consolidation order and later order assigning one docket number that these cases were consolidated for all purposes including trial. Consequently, when the trial court dismissed the claims between Pohnpei and KSVI No. 3, NFC, and KSVI, but did not make the required findings under Rule 54(b), that dismissal was not a final judgment and thus Pohnpei remained a party to the consolidated action for purposes of later appeal.

     Alternatively, even if the trial court’s January 20, 2003 order were considered a severance, under Civil Rule 42(b), of Pohnpei’s and KSVI No. 3’s, NFC’s, and KSVI’s claims against each other and then a (re)assignment of docket number 1998-086 to the remainder of the case, Kitti’s and Pohnpei’s claims against each other, and the court’s February 16, 2001 ruling on them, would still be a part of the case that remained after the claims between Pohnpei and KSVI No. 3, NFC, and KSVI were dismissed. Either way, Kitti’s and Pohnpei’s claims against each other, and the court’s February 16, 2001 ruling on them, remained a part of the case after the claims between Pohnpei and KSVI No. 3, NFC, and KSVI were dismissed. Pohnpei, therefore, remained a party to the case, and would thus be an appellee to this appeal. The movants are therefore mistaken in asserting that Pohnpei was not already a party-appellee to this appeal.

     One final note: parties, in designating the appendix and the record on appeal, should be careful to ascertain that all necessary documents have been included as before consolidation documents were filed in only one and not the other case and after consolidation, some documents may have inadvertently been filed under one docket number and not the other. Counsel should also carefully check the clerk’s certification of the record to ascertain whether it accurately reflects the record before the trial court when it considered the issues and decided the ruling now on appeal.

IV. Conclusion

     In the court’s view, Pohnpei was a party to the decision appealed from and is thus already an appellee in this appeal and may participate as such without any leave or order of the court. Furthermore, even if Pohnpei were not already an appellee, it could still participate in this appeal without leave or order of the court as an amicus curiae as of right. FSM App. R. 29. For these reasons, and because Appellate Rule 43(b) is inapplicable to this case, the Motion for Substitution of Parties is denied.

* * * *

_______________________________________

Footnotes:

1. Since the cases had been consolidated by then and Pohnpei was a party to the consolidated case, a "third party complaint" against Pohnpei could not actually be a third party complaint, regardless of what the "third party plaintiff" calls it because a third party complaint is a device used to bring a non-party into a case and Pohnpei was already a party. See Ifenuk v. FSM Telecomm. Corp., 11 FSM Intrm. 201, 204 (Chk. 2002); FSM Civ. R. 14(a) (rule allows a defendant to bring into the case "a person who is not a party to the action who is or may be liable to the third party plaintiff for all or part of the plaintiff’s claim against the third party plaintiff"). Claims against an opposing party are counterclaims, regardless of whether counsel has labeled them correctly. See FSM Civ. R. 13(a). Claims against a co-party are cross-claims. See FSM Civ. R. 13(g). A quick review of the July 2, 1999 filing shows that its claims are in the nature of counterclaims.

2. Although the court must first look to FSM sources of law rather than begin with a review of cases decided by other courts, FSM Const. art. XI, § 11 ("In rendering a decision, a court shall consult and apply sources of the Federated States of Micronesia."), when the court has not previously construed an FSM appellate rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule, see, e.g., Bualuay v. Rano, 11 FSM Intrm. 139, 146 n.1 (App. 2002); Santos v. Bank of Hawaii, 9 FSM Intrm. 306, 308 n.1 (App. 2000); Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992). The court has not previously construed FSM Appellate Rule 43. Its only previous mention was in Palik v. Kosrae, 6 FSM Intrm. 362, 363 (App. 1994) where the court noted its inapplicability to a criminal defendant-appellant who had died while his appeal was pending.

3. The court, of course, prefers full participation by appellees as the court, FSM jurisprudence, and the FSM bar usually benefit from a full presentation of all the relevant issues by all the interested parties. The motion asserts that KSVI No. 3, NFC, and KSVI are not interested parties.