FSM SUPREME COURT TRIAL DIVISION
Cite as Ifenuk v. FSM Telecomm. Corp.
11 FSM Intrm. 403 (Chk. 2003)

[11 FSM Intrm. 403]

GEORGE IFENUK,
Plaintiff/Counterdefendant,

vs.

FEDERATED STATES OF MICRONESIA
TELECOMMUNICATIONS CORPORATION,
Defendant/Counterclaimant.

CIVIL ACTION NO. 1999-1012

ORDER OF DISMISSAL

Andon L. Amaraich
Chief Justice

Hearing:  February 26, 2003
Decided:  March 3, 2003

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

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HEADNOTES

Civil Procedure - Dismissal; Civil Procedure - Joinder, Misjoinder and Severance
If an indispensable party cannot be made a party, the court must determine whether in equity and good conscience the action should proceed among the parties before it or whether it must be dismissed.  The factors the court must consider include:  1) to what extent a judgment rendered in the person’s absence might be prejudicial to that person or those already parties; 2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; 3) whether a judgment rendered in the person’s absence will be adequate; and 4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.  Ifenuk v. FSM Telecomm. Corp., 11 FSM Intrm. 403, 404-05 (Chk. 2003).
Civil Procedure - Dismissal; Civil Procedure - Joinder, Misjoinder and Severance; Torts - Trespass
A trespass case will be dismissed for failure to join the land’s co-owners as indispensable parties 

[11 FSM Intrm. 404]

plaintiff because any judgment in a rendered in the co-owners’ absence will be prejudicial to the defendant since any of the other co-owners could sue for the same trespass, thus subjecting the defendant to multiple judgments for the same acts; because even a judgment in the defendant’s favor would not prevent another co-owner from suing for the same acts; because there are no protective provisions that could be included in a judgment that would lessen the prejudice; and because the plaintiff has an adequate remedy since the dismissal is without prejudice - he may refile the case with the co-owners included.  Ifenuk v. FSM Telecomm. Corp., 11 FSM Intrm. 403, 405 (Chk. 2003).

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COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

On February 26, 2003, this came before the court for hearing on the Defendant’s Motion to Dismiss.  The motion is granted.  The reasons follow.

On October 23, 2002, the court issued its order that the co-owners of the land that plaintiff George Ifenuk alleges that defendant FSM Telecommunications Corporation ("Telecom") trespassed upon must all be added as parties plaintiff no later than November 18, 2002, or Ifenuk’s case would be subject to dismissal. [Ifenuk v. FSM Telecomm. Corp., 11 FSM Intrm. 201, 204, 205 (Chk. 2002).]  All the court asked Ifenuk to do was to file a written and signed statement from each of them that George Ifenuk is representing their interests in this matter.  (In the alternative, any of them could enter their own appearance, if they so chose.)

On November 27, 2002, Telecom filed Defendant’s Motion to Dismiss.  The ground for the motion was that the plaintiff had not complied with the court’s October 23, 2002 order concerning the addition of parties.

Ifenuk filed his opposition on December 3, 2002.  It contended that he had been trying to comply but asked for more time.  It also stated that he intended to share the proceeds of any judgment with his co-owners - his sisters, brothers, and mother, and that the permission given by two of them - Rita and Achun Ifenuk - was to enter a different parcel of land, not the land in question.  On December 13, 2002, the court entered an order continuing trial and holding in abeyance any ruling on Telecom’s motion to dismiss.  This was done in order to give the plaintiff more time to comply with the court’s October 23, 2002.  He was given until January 31, 2003.

He has not complied.  Ifenuk acknowledges that there are eight other co-owners of the land that Telecom allegedly trespassed upon, his mother and his brothers and sisters.  At hearing, he represented that, to date, he has been unable to obtain their addresses in Guam, Honolulu, Alaska, and the U.S. mainland.  He was unable to provide the court with a written statement from even one of them authorizing him to sue in their stead.

The court has already determined, in its October 23rd order, that Ifenuk’s co-owners are indispensable parties.  [Ifenuk, 10 FSM Intrm. at 203-04.]  That analysis need not be repeated here.  If an indispensable party cannot be made a party, the court must determine whether in equity and good conscience the action should proceed among the parties before it or whether it must be dismissed.  FSM Civ. R. 19(b).  The factors the court must consider include:

first, to what extent a judgment rendered in the person’s absence might be prejudicial to that person or those already parties; second, the extent to which, by protective provisions

[11 FSM Intrm. 405]

 in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

Id.

The court concludes that this case must be dismissed.  Any judgment rendered in the co-owners’ absence will be prejudicial to the defendant because any of the other co-owners could sue for the same trespass, thus subjecting Telecom to multiple judgments for the same acts.  Even a judgment in Telecom’s favor in this case would not prevent another co-owner from suing for the same acts.  There are no protective provisions that could be included in a judgment that would lessen the prejudice to Telecom.  The plaintiff has an adequate remedy.  Since this dismissal is without prejudice, he may refile the case with the co-owners included.

Accordingly, now therefore it is hereby ordered that the plaintiff’s complaint is dismissed without prejudice.

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