FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2000-1019

KARIE HERMAN, individually and in her capacity as administratrix of the ESTATE OF NORU HERMAN, guardian ad litem of NUSIA HERMAN, MARKOS HERMAN, NEO HERMAN, KNOR HERMAN, LASTMAN HERMAN, ONELA HERMAN, and NMAN HERMAN, and as trustee for the heirs of NORU HERMAN, who are NORLIN HERMAN, NORIANO HERMAN, NOE HERMAN, KAPRIEL HERMAN, NUSI HERMAN, NUSIA HERMAN, MARKOS HERMAN, NEO HERMAN, KNOR HERMAN, LASTMAN HERMAN, ONELA HERMAN, and NMAN HERMAN,
Plaintiffs,

vs.

MUNICIPALITY OF PATTA, RORO RES, RUBY PONUN, and MAN KARUTE,
Defendants.

__________________________________________________

ORDER DENYING AMENDMENT OF COMPLAINT AND MEMORANDUM

Martin G. Yinug
Associate Justice

Hearing: September 4, 2008
Decided: October 8, 2008

APPEARANCES:

For the Plaintiffs: Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendants: Joses Gallen, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure  Pleadings  Amendment
 Although Rule 15(a) provides that a party may amend the party's pleading by leave of court or by the adverse party's written consent and that leave shall be freely given when justice so requires, Rule 15(a) is not applicable when the motion is brought post-judgment for events that occurred after the complaint was filed and seeks to add two new defendants and a new cause of action solely against those two. Herman v. Municipality of Patta, 16 FSM Intrm. 167, 170 (Chk. 2008).

Civil Procedure  Pleadings  Amendment
 When a Rule 15(a) motion to amend is brought post-judgment, it must comply with the Rule 60(b) timing requirements and it will generally be accompanied by a Rule 60(b) motion for relief from judgment because once a judgment is entered the filing of an amendment cannot be allowed until the judgment is set aside or vacated under Rule 59 or Rule 60. Herman v. Municipality of Patta, 16 FSM Intrm. 167, 170 & n.3 (Chk. 2008).

Civil Procedure  Pleadings  Amendment
 Under Rule 15(d) a court may, upon reasonable notice and upon such terms as are just, permit the moving party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Herman v. Municipality of Patta, 16 FSM Intrm. 167, 170 (Chk. 2008).

Civil Procedure  Pleadings  Amendment
 An amended pleading is designed to include matters occurring before the filing of the complaint but either overlooked or not known at the time. A supplemental pleading, however, is designed to cover matters subsequently occurring but pertaining to the original cause. Herman v. Municipality of Patta, 16 FSM Intrm. 167, 170 (Chk. 2008).

Civil Procedure  Pleadings  Amendment
 When an FSM court has not previously construed certain aspects of pleading practice that are controlled by FSM procedural rules that are identical or similar to U.S. rules, the court may consult U.S. sources for guidance. Herman v. Municipality of Patta, 16 FSM Intrm. 167, 171 n.4 (Chk. 2008).

Civil Procedure  Pleadings  Amendment
 While leave to permit supplemental pleading is favored, it cannot be used to introduce a separate, distinct and new cause of action. A supplemental pleading is designed to obtain relief along the same lines, pertaining to the same cause, and based on the same subject matter or claim for relief, as set out in the original pleading. Herman v. Municipality of Patta, 16 FSM Intrm. 167, 171 (Chk. 2008).

Civil Procedure  Joinder, Misjoinder and Severance
 Both the requirement that the claim arise from the same transaction or occurrence and the requirement that there be a question of law or fact common to all defendants must be satisfied in order to sustain party joinder of defendants under Rule 20(a). Herman v. Municipality of Patta, 16 FSM Intrm. 167, 171 (Chk. 2008).

Civil Procedure  Joinder, Misjoinder and Severance; Civil Procedure  Pleadings
 Rule 18 permits the joinder in a single action of as many claims, legal, equitable, or maritime, as the party has against an opposing party even if those claims are unrelated. But when the claims that the plaintiffs seek to add are not against any opposing party, but are against persons the plaintiffs seek to add as new defendants eight years after the complaint they seek to amend was filed and five years after judgment was entered on that complaint, the joinder will not granted. Herman v. Municipality of Patta, 16 FSM Intrm. 167, 171-72 (Chk. 2008).

Civil Procedure  Pleadings  Amendment
 Rule 71 only permits enforcement of orders and judgments against non-parties when obedience to an order may be lawfully enforced against a person who is not a party. It does not support joinder of non-parties as parties or a motion to amend a complaint. Herman v. Municipality of Patta, 16 FSM Intrm. 167, 172 (Chk. 2008).

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COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

 On September 4, 2008, this came before the court for hearing on the plaintiffs' Motion to Amend Complaint, filed February 20, 2008; the defendants' Opposition to Plaintiffs' Motion to Amend Complaint, filed March 4, 2008; and the plaintiffs' Reply in Support of Motion to Amend Complaint, filed March 14, 2008. The parties were permitted to submit supplemental authority. The plaintiffs filed a response on September 18, 2008, and the defendants filed theirs on September 30, 2008, and the plaintiffs filed their reply to the defendants' response on October 6, 2008.

 The plaintiffs move to amend the complaint to add a new cause of action against two new defendants. The motion is denied. The reasons follow.

I.

 On September 30, 2003, the court entered a judgment holding the defendants liable for their violation of Noru Herman's civil rights and his resulting wrongful death. Herman v. Municipality of Patta, 12 FSM Intrm. 130 (Chk. 2003). Of the $75,319.09 total judgment, including attorney's fees and costs, Patta Municipality was jointly and severally liable for $75,119.09. Id. at 139. Defendant Roro Res was held jointly and severally liable for $68,954.86 of that amount; defendant Ruby Ponun was jointly and severally liable for $31,225 of it; and Man Karute was jointly and severally liable for $584.55 of it. Id.

 After an evidentiary, order-in-aid-of-judgment hearing, the parties stipulated to, and the court issued on March 10, 2004, an order that, among other things, required that all funds identified by the reconciliation of unexpended Patta Capital Improvement Project funds for the fiscal years 1987 through 2003 not be disbursed until further court order (later information indicated that $41,722.43 in unobligated 1987-2003 CIP funds were available then), since the plaintiffs expected those funds could be used toward satisfying their judgment. The order was served on the Chuuk Department of Administrative Affairs (Chuuk Finance), which was responsible for holding and disbursing Patta municipal funds.

 On October 6, 2005, after notice and an opportunity to be heard, the court, relying on the legal principle in Davis v. Kutta, 11 FSM Intrm. 545 (Chk. 2003), aff'd sub nom., Chuuk v. Davis, 13 FSM Intrm. 178 (App. 2005), issued a writ of garnishment directed to the State of Chuuk as garnishee to pay, from the reconciliation of unexpended Patta Capital Improvement Project funds for the fiscal years 1987 through 2003, the judgment amount as then accrued, or as much of it as there were funds available in that category. No payment was made to the plaintiffs until May 29, 2007. That payment was for $3,992.43; the other $37,730 having already been released or otherwise disbursed despite the March 10, 2004 and later court orders and the October 6, 2005 writ of garnishment.

II.

 The plaintiffs' proposed amendment would assert a cause of action against the State of Chuuk and Wilipinat Bisalen, (neither of which are parties), alleging that they knew of the various court orders freezing the 1987-2003 Patta CIP funds; knowingly violated those orders by releasing $37,730 ($24,091 in Bisalen's case) of those funds; that those funds were the only significant source that Patta Municipality had to conceivably pay a substantial portion of the judgment; and that, by converting or diverting those funds despite the court orders, the State of Chuuk and Wilipinat Bisalen violated the plaintiffs' civil rights by a taking of their property rights in the released money without due process of law. The plaintiffs thus seek to add two new defendants and a new cause of action based on events that occurred not only after the complaint was filed but after judgment had been rendered.

III.

 The plaintiffs rely on Civil Procedure Rule 15(a) for support. The pertinent part of that rule provides that "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." FSM Civ. R. 15(a). The plaintiffs contend that it would be in the interest of justice to allow the amendment because, if found liable, Chuuk and Bisalen would be jointly and severally liable along with the current defendants for part of the total judgment (since otherwise the plaintiffs would receive double recovery).

 But because this motion is brought post-judgment for events that occurred after the complaint was filed and seeks to add two new defendants and a new cause of action solely against those two, Rule 15(a) is not applicable. Its inapplicability is apparent because, when a Rule 15(a) motion to amend is brought post-judgment, it will generally be accompanied by a Rule 60(b) motion for relief from judgment and must comply with the Rule 60(b) timing requirements. See 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1489, at 692-95 (2d ed. 1990). But the plaintiffs are not interested in relief from the current judgment  they seek to enforce it as it stands.

 Rules 15(d) (supplemental pleadings), 18(a) (joinder of claims), and 20 (permissive joinder of parties) are more applicable. Rule 19 (joinder of parties needed for a just adjudication) would not apply because neither Chuuk nor Bisalen needed to be joined in order for the case to have been justly adjudicated between those already parties.

 Under Rule 15(d) a court "may, upon reasonable notice and upon such terms as are just, permit the [moving] party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." FSM Civ. R. 15(d). "An amended pleading is designed to include matters occurring before the filing of the [complaint] but either overlooked or not known at the time. A supplemental pleading, however, is designed to cover matters subsequently occurring but pertaining to the original cause." Berssenbrugge v. Luce Mfg. Co., 30 F. Supp. 101, 101 (W.D. Mo. 1939). The events alleged in the proposed amendment not only occurred after the complaint that the plaintiffs seek to amend was filed, but also after judgment on that complaint was entered. The plaintiffs thus seek leave to "supplement" their original pleading.

 But "[w]hile leave to permit supplemental pleading is 'favored,' it cannot be used to introduce a 'separate, distinct and new cause of action.'" Planned Parenthood of S. Ariz. v. Neely, 130 F.3d 400, 402 (9th Cir. 1997) (new statute cannot be challenged by supplemental pleading in case where judgment held previous statute unconstitutional) (citation omitted). "A supplemental pleading 'is designed to obtain relief along the same lines, pertaining to the same cause, and based on the same subject matter or claim for relief, as set out in the original [pleading].'" Slavenburg Corp. v. Boston Ins. Co., 30 F.R.D. 123, 126 (S.D.N.Y. 1962) (emphasis and alteration in original) (quoting United States v. Russell, 241 F.2d 879, 882 (1st Cir. 1957)). The plaintiffs' proposed amendment is a separate, distinct and new cause of action against new parties and not relief sought along the same lines as or pertaining to the cause set out in the original complaint. Thus, Rule 15 does not authorize the plaintiffs' proposed amendment.

 Furthermore, under Rule 20, new parties

may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.

FSM Civ. R. 20(a). Both of these requirements  same transaction or occurrence and a question of law or fact common to all defendants  "must be satisfied in order to sustain party joinder under Rule 20(a)." 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1653, at 403-04 (3d ed. 2001).

 The plaintiffs cannot satisfy either requirement. Any right to relief that the plaintiffs may enjoy against Chuuk and Bisalen is not in respect of and does not arise out of "the same transaction, occurrence, or series of transactions or occurrences" as the current defendants' liability. The defendants' liability arose out of events leading to Noru Herman's death on July 5, 1998. Any liability owed by Chuuk and Bisalen arose from a series of unrelated transactions or occurrences years later. Nor does it appear possible that a question of law or fact common to all defendants, current and proposed, will arise in the action because the alleged liability of Bisalen and Chuuk is predicated on unrelated events distant in time. Thus, even if Chuuk and Bisalen were found jointly and severally liable to the plaintiffs for part of their judgment against the defendants in this case, they could not be joined as parties herein.

 Rule 18 also would not support the plaintiffs' motion. It permits the joinder in a single action of "as many claims, legal, equitable, or maritime, as the party has against an opposing party," FSM Civ. R. 18(a), even if those claims are unrelated. The claims that the plaintiffs seek to add are not against any opposing party, but are against persons the plaintiffs seek to add as new defendants eight years after the complaint they seek to amend was filed and five years after judgment was entered on that complaint.

 Lastly, the plaintiffs assert that Rule 71 supports their motion. That rule only permits enforcement of orders and judgments against non-parties "when obedience to an order may be lawfully enforced against a person who is not a party." FSM Civ. R. 71. By their motion to amend the plaintiffs do not seek to enforce their judgment against non-parties, they seek to make non-parties, Bisalen and Chuuk, parties and then obtain judgments against them. Thus, Rule 71 does not apply to this motion either.

IV.

 Accordingly, the plaintiffs' motion to amend is denied. The plaintiffs cannot pursue their claims against Wilipinat Bisalen and the State of Chuuk in this case. This ruling does not preclude the plaintiffs herein from seeking relief against Wilipinat Bisalen and the State of Chuuk in a separate action.

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