FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2009-014

ELIZABETH LEE, RYAN LEE, SEEMA SHAH, MIE BABA, YASUO BABA, and TAYLOR STRONG,

Plaintiffs,

vs.

FEDERATED STATES OF MICRONESIA, through its PUBLIC DEFENDER JULIUS J. SAPELALUT,
Defendant.
_____________________________________________ )

DECISION AND ORDER

Dennis K. Yamase
Associate Justice

Decided: December 19, 2011

APPEARANCES:

For the Plaintiffs: Michael J. Sipos, Esq.
P.O. Box 2069
Kolonia, Pohnpei FM 96941

For the Defendant: Julius J. Sapelalut, Esq., Chief Public Defender
Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941

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HEADNOTES

Constitutional Law - Case or Dispute
The court will not provide a decision in a case that is not currently before it and it will not render advisory opinions. Further, the court cannot opine on facts that are not currently before it. Lee v. FSM, 18 FSM Intrm. 106, 108 (Pon. 2011).

Civil Procedure - Default and Default Judgments; Civil Procedure - Joinder and Severance; Civil Procedure - Pleadings - Impleader
When a default has been entered with a default judgment pending the determination of damages, it is inappropriate for the court to allow a third party complaint to be filed or to give declaratory relief involving a third party not named as a defendant in the matter. Lee v. FSM, 18 FSM Intrm. 106, 108 (Pon. 2011).

Civil Procedure - Default and Default Judgments; Civil Procedure - Joinder and Severance; Civil Procedure - Pleadings - Impleader
If it is filed no more than 10 days after the original answer is filed, a defending party may, without the leave of the court, cause a summons and third-party complaint be served on a person not party to the case who may be liable to the third party plaintiff for all or part of the plaintiff's claim. If the third-party complaint is not filed within ten days after the defendant's original answer is served, then the defendant must ask the trial court for leave to implead, and the decision whether to implead a third-party defendant is addressed to the trial court's sound discretion. Lee v. FSM, 18 FSM Intrm. 106, 108 (Pon. 2011).

Civil Procedure - Default and Default Judgments; Civil Procedure - Joinder and Severance; Civil Procedure - Pleadings - Impleader
It is the generally accepted rule that petitions to add a third party to a case once a trial is about to begin, or once it has begun, is untimely and will be denied, and that any efforts to implead a third party after the entry of default is also untimely and the request is moot. Lee v. FSM, 18 FSM Intrm. 106, 108 (Pon. 2011).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

I. Background

On January 10, 2010, the Defendant, Federated States of Micronesia (FSM), filed a Motion to File Third Party Complaint for Indemnity, Contribution, and Declaratory Relief concerning the indemnity and contribution of a Simion Waathan, who is not a named Defendant in this case. Def. Mot. at 2. The Plaintiffs Elizabeth Lee et al. (Lee et al.), replied on February 26, 2010 opposing the Defendant FSM's motion on both procedural and legal grounds. Pl. Mot. at 1.

Michael J. Sipos, Esq. represents the Plaintiffs Lee et al. The FSM Public Defender Julius J. Sapelalut, Esq. represents the Defendant FSM. The Court has reviewed and considered the filings submitted and issues the following decision and order.

The initial complaint was filed on February 27, 2009 and the Court Clerk entered an entry of default on April 1, 2009. On September 18, 2009, the FSM filed a motion to set aside the entry of default. The motion to set aside the entry of default was denied by the Court on November 10, 2009. A hearing on damages was scheduled for February 16, 2010, however as a result of the illness and passing of the former Chief Justice, the hearing was vacated and the case subsequently reassigned.

On January 10, 2010, the FSM filed a motion to file a third party complaint seeking from the Court a declaration of the rights, duties, and liabilities of a party not previously named in this action, namely Simion Waathan. Further, the FSM is asking the Court to determine if the FSM is to be indemnified by Waathan or if the FSM is entitled to recover a proportional share of the judgment from Waathan. The FSM provided a copy of a 2001 memorandum outlining the control and care of government owned vehicles in the executive branch. No other documents or submissions were provided.

II. Discussion and Analysis

In the case of Estate of Mori v. Chuuk, the Court stated that it will not provide a decision in a case that is not currently before the Court, and that it will not render advisory opinions. Estate of Mori v. Chuuk, 12 FSM Intrm. 24, 26 (Chk. 2003). Further, the Court cannot opine on facts that are not currently before it. Id.

In this matter, a default has been entered with a default judgment pending the determination of damages. It is inappropriate for the Court to allow a third party complaint to be filed at this stage of the proceeding or to give declaratory relief involving a third party not named as a defendant in this matter. Although an actual controversy may exist between the FSM and Waathan, Waathan is not currently a party to this case. The Court cannot provide an opinion as to Waathan's liability to the FSM in the matter as it currently stands.

FSM Civil Rule 14(a) provides that a defending party may cause a summons and complaint be served on a person not party to the case who "may be liable to the third party plaintiff for all or part of the plaintiff's claim." The original Defendant FSM may file the third-party complaint without the leave of the Court if it is filed no more than 10 days after the original answer was filed. Id. If the third-party complaint is not filed within ten days after the defendant's original answer is served, then the defendant must ask the trial court for leave to implead. Id. The decision whether to implead a third-party defendant is addressed to the sound discretion of the trial court. Southwest Adm'rs, Inc. v. Rozay's Transfer, 791 F.2d 769 (9th Cir. 1986).

In the instant case, the FSM did not file an answer in a timely fashion and an entry of default was entered against the FSM. The Court later denied the FSM's motion to dismiss the entry of default. After the entry of default had been entered, the FSM filed its motion requesting leave to file a third party complaint. Pl. Mot. at 2.

It is the generally accepted rule that petitions to add a third party to a case once a trial is about to begin, or once it has begun, is untimely and will be denied. Union Nat'l Bank v. Superior Steel Corp., 9 F.R.D. 124, 127 (W.D. Pa. 1949). An entry of default in this matter has been entered and any efforts to implead a third party after the entry of default is untimely and the request is moot. Ocello v. City of New York, 2008 WL 78957, 2008 U.S. Dist. LEXIS 22556 (E.D.N.Y. Mar. 20, 2008).

An actual controversy may exist between the FSM and Waathan and the FSM may obtain a decision from the Court by initiating an appropriate action against Waathan in the proper manner.

III. Conclusion

For the above reasons, the FSM's Motion to File a Third Party Complaint is hereby denied. The parties are hereby ordered to consult with each other and to jointly submit three dates for further proceedings in this matter by January 20, 2012. Further proceedings will include a hearing for the Court to receive evidence and determine damages before the entry of judgment.