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Ifenuk v Federated States of Micronesia Telecommunications Corporation [2002] FMSC 36; 11 FSM Intrm. 201 (Chk. 2002) (23 October 2002)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Ifenuk v. FSM Telecomm. Corp.[2002] FMSC 36; , 11 FSM Intrm. 201 (Chk. 2002)

[2002] FMSC 36; [11 FSM Intrm. 201]

GEORGE IFENUK,
Plaintiff,

vs.

FEDERATED STATES OF MICRONESIA
TELECOMMUNICATIONS CORPORATION,
Defendant.

CIVIL ACTION NO. 1999-1012

ORDER REGARDING ADDITIONAL PARTIES AND CLAIMS

Andon L. Amaraich
Chief Justice

Decided: October 23, 2002

[11 FSM Intrm. 202]

APPEARANCES:

For the Plaintiff:
Frank Casiano, trial counselor
Midasy O. Aisek, Esq. (supervising attorney)
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Defendant:
Craig D. Reffner, Esq.
Law Office of Fredrick L. Ramp
P.O. Box 1480
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Civil Procedure - Joinder and Severance; Torts - Trespass
In a claim for damages to land, such as trespass, all the co-owners of the affected land are indispensable parties to the action and must be joined if they are not already parties; otherwise the defendant faces a substantial risk that it may be subject to multiple or inconsistent judgments if any of the other persons who claim to be co-owners decide to sue. Ifenuk v. FSM Telecomm. Corp., [2002] FMSC 36; 11 FSM Intrm. 201, 203-04 (Chk. 2002).

Civil Procedure
When the FSM Supreme Court has not construed an FSM court rule which is similar or identical to a U.S. rule, it may look to U.S. practice for guidance. Ifenuk v. FSM Telecomm. Corp., [2002] FMSC 36; 11 FSM Intrm. 201, 203 n.2 (Chk. 2002).

Civil Procedure - Joinder and Severance; Civil Procedure - Parties
In Chuuk, it has been common practice for one joint owner to sue as a representative of himself and other joint owners, or for the lineage as a whole to sue as one party, but when neither is what was done in the case and the plaintiff’s complaint asserted that he was the sole owner of the land allegedly trespassed upon, a defendant’s motion to add the land’s co-owners as parties-plaintiff must be granted. Ifenuk v. FSM Telecomm. Corp., [2002] FMSC 36; 11 FSM Intrm. 201, 204 (Chk. 2002).

Civil Procedure - Joinder and Severance; Civil Procedure - Pleadings
Rule 14 allows a defendant to bring in third parties by causing a summons and complaint to be served upon persons not a party to the action who are or may be liable to the defendant for all or part of the plaintiff’s claim against the defendant, but if those persons are added as parties plaintiff in the action, then they are parties, not third parties, and no third party complaint could possibly be brought against them. Ifenuk v. FSM Telecomm. Corp., [2002] FMSC 36; 11 FSM Intrm. 201, 204 (Chk. 2002).

Civil Procedure - Joinder and Severance; Civil Procedure - Pleadings
If persons the defendant seeks to add as third parties become plaintiffs, then the "claims" the defendant seeks to bring against them can properly be raised as defenses to the plaintiffs’ action, and a motion for leave to file a third party complaint against them must be denied. Ifenuk v. FSM Telecomm. Corp., [2002] FMSC 36; 11 FSM Intrm. 201, 204 (Chk. 2002).

Civil Procedure - Joinder and Severance
A defendant is also allowed, at the court’s discretion, to add as a permissive counterclaim any

[11 FSM Intrm. 203]

claim it has against the plaintiff that is unrelated to the plaintiff’s claims. While the court may not be inclined to grant leave to add a counterclaim, not in the original answer, if adding it would cause further delay in the proceeding, but when it appears that the counterclaim is straight forward and will not delay matters and when it does not appear that much preparation for this claim will be needed so as to delay the scheduled trial, the motion to add a permissive counterclaim will be granted. Ifenuk v. FSM Telecomm. Corp., [2002] FMSC 36; 11 FSM Intrm. 201, 204-05 (Chk. 2002).

* * * *

COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

This comes before the court on the defendant’s motions to add persons as party plaintiffs, for leave to file a third party complaint, and for leave of court to file amended answer with counterclaim, filed on October 2, 2002 and on the plaintiff’s oppositions, filed on October 9, 2002.

Defendant FSM Telecommunications Corporation ("Telecom") seeks to add as parties-plaintiff eight persons^[1] who, by the plaintiff’s own admissions during his deposition on August 28, 2002, jointly own the land (along with the plaintiff) that the plaintiff alleges that the defendant trespassed upon. Telecom contends that the joint owners of the land are indispensable parties which, under Civil Procedure Rule 19(a), must be joined for a just adjudication. Telecom also seeks to amend its answer to add a counterclaim for $238.04 of charges for telephone services that the plaintiff, George Ifenuk, allegedly used, but has not paid for. Telecom also asks leave to file a third party complaint alleging that if it is liable to the plaintiff, then Rita Ifenuk and Achun Ifenuk, who allegedly gave it permission to enter the land, are liable to it for whatever damages Telecom owes the plaintiff. The court notes that these two persons are also among those that Telecom seeks to add as parties plaintiff.

The plaintiff opposes the motions on the ground that two of the persons Telecom seeks to add as parties reside in Hawaii and adding them will unnecessarily delay the proceeding.

I. Proposed Addition of Parties-Plaintiff

The court shares the plaintiff’s concern about further delay. However, George Ifenuk, by his own admission, is not the owner of the land allegedly trespassed upon, but merely one of nine joint owners. Telecom contends that failure to join the other eight joint owners would leave it subject to a substantial risk of incurring multiple obligations - that is, each of the other joint owners could claim that Telecom is liable to them for the same acts.

In a claim for damages to land, such as trespass, all the co-owners of the affected land are indispensable parties to the action and must be joined if they are not already parties. See 7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1621, at 326-27 (3d ed. 2su1)^[2] ("in order to sue for damages for injury to the land . . . all [joiners] be b fore

[11 FSM Intrm. 204]

the court"); Gutu>Guth v. Texas Co., 155 F.2d 563, 566 Cir.) (co-owners must be joined as plaintiffs to sue for injury to the land, but sing single cole co-owner can sue for an accounting of money due for royalty payments for oil and gas to determine his share). This is because otherwise Telecom faces a substantial risk that it may be subject to multiple or inconsistent judgments if any of the other persons who claim to be co-owners decides to sue.

In Chuuk, it has been common practice for one joint owner to sue as a representative of himself and other joint owners, see, e.g., Small v. Roosevelt, Innocenti, Bruce & Crisostomo, [2001] FMSC 31; 10 FSM Intrm. 367 (Chk. 2001); Nakamura v. Moen Municipality, [1996] FMCSC 5; 7 FSM Intrm. 375 (Chk. S. Ct. Tr. 1996); Cheni v. Ngusun, [1994] FMCSC 7; 6 FSM Intrm. 544, 545 (Chk. S. Ct. App. 1994), or for the lineage as a whole to sue as one party, see, e.g., Enengeitaw Clan v. Shirai, [2001] FMCSC 3; 10 FSM Intrm. 309 (Chk. S. Ct. Tr. 2001); Wito Clan v. United Church of Christ, [1993] FMSC 24; 6 FSM Intrm. 129, 133 (App. 1993). But neither is what was done in this case. Here, George Ifenuk’s complaint asserts that Telecom is liable to him for damages for trespassing on his land. George Ifenuk gave no indication in the pleadings that he was anything other than the sole owner of the land that he alleged Telecom trespassed on.

Accordingly, Telecom’s motion to add parties-plaintiff must be granted. FSM Civ. R. 19(a)(2)(ii). All eight other co-owners must either file a written and signed statement that George Ifenuk is representing their interests in this matter or make a separate appearance themselves. The plaintiff shall be responsible for notifying his co-owners and obtaining and filing and serving any of their statements that George Ifenuk will represent their co-ownership interest in this dispute. This is because George Ifenuk bears some responsibility here because of his failure, inadvertent or otherwise, to reveal the nature of the ownership of the land until this late point in the proceedings. These statements or appearances of the co-owners shall be filed no later than November 18, 2002. If they are not all filed by then, the plaintiff’s case is then subject to dismissal. See FSM Civ. R. 19(b).

II. Proposed Third Party Complaint

Telecom’s motion also asks for leave to file a third party complaint against Rita Ifenuk and Achun Ifenuk. Rule 14 allows a defendant to bring in a third party by causing "a summons and complaint to be served upon a person not a party to the action who is or may be liable to the [defendant] for all or part of the plaintiff’s claim against the [defendant]." FSM Civ. R. 14(a). If Rita Ifenuk and Achun Ifenuk are added as parties plaintiff in the action, then they are parties, not third parties, and no third party complaint could possibly be brought against them. If Rita Ifenuk and Achun Ifenuk become plaintiffs, then the "claims" that Telecom seeks to bring against them (that if Telecom is liable to George Ifenuk for trespass on the land they are liable to Telecom because they gave it permission to enter the land) can properly be raised as defenses to the plaintiffs’ action. Telecom is hereby granted leave to raise this defense once Rita Ifenuk and Achun Ifenuk are added as parties plaintiff. Telecom’s motion for leave to file a third party complaint therefore must be denied.

III. Proposed Permissive Counterclaim

A defendant is also allowed, at the court’s discretion, to add as a permissive counterclaim any claim it has against the plaintiff that is unrelated to the plaintiff’s claims. FSM Civ. R. 13(b). Telecom seeks to add an unrelated counterclaim, George Ifenuk’s unpaid telephone bills. The court is not inclined to grant leave to add this counterclaim if adding it would cause further delay in the proceeding. This counterclaim was not included in Telecom’s original answer.

[2002] FMSC 37; [11 FSM Intrm. 205]

However, it appears that this counterclaim is straight forward and will not delay matters because once filed and served the plaintiff will have ten days to answer, FSM Civ. R. 15(a), and because it does not appear that much preparation for this claim will be needed so as to delay the scheduled trial. Telecom shall file and serve this counterclaim no later than November 4, 2002.

IV. Conclusion

For the foregoing reasons, NOW THEREFORE IT IS HEREBY ORDERED that the co-owners of the land that plaintiff George Ifenuk alleges that Telecom trespassed on shall all be added as parties plaintiff no later than November 18, 2002, or this case is subject to dismissal. Telecom’s motion to file a third party complaint is denied. Telecom may file and serve its counterclaim against plaintiff George Ifenuk no later than November 14, 2002, and George Ifenuk shall answer the counterclaim within ten days of its service.

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^[1] Mensy Ifenuk, Kiniko Ifenuk, Sitiro Ifenuk, Ioanes Ifenuk, Stefan Ifenuk, Achun Ifenuk, Marka Ifenuk, and Rita Ifenuk

^[2] Interpreting U.S. Federal Civil Procedure Rule 19, which is similar to the FSM rule. When the FSM Supreme Court has not construed an FSM court rule which is similar or identical to a U.S. rule, it may look to U.S. practice for guidance. See, e.g., Senda v. Mid-Pacific Constr. Co., [1994] FMSC 20; 6 FSM Intrm. 440, 444 (App. 1994); Andohn v. FSM, [1984] FMSC 4; 1 FSM Intrm. 433, 441 (App. 1984); Medabalmi v. Island Imports Co., [2001] FMSC 7; 10 FSM Intrm. 217, 219 n.1 (Chk. 2001).