FSM SUPREME COURT TRIAL DIVISION
Cite as Richmond Wholesale Meat Co. v. George
11 FSM Intrm. 86 ( Kos. 2002)
 
[11 FSM Intrm. 86]
 
RICHMOND WHOLESALE MEAT CO.,
Plaintiff,
 
vs.
 
WEBSTER GEORGE d/b/a WEBSTER
GEORGE AND COMPANY,
Defendant.
 
CIVIL ACTION NO. 2001-2004
 
ORDER AND MEMORANDUM
 
Martin Yinug
Associate Justice
 
Decided: August 2, 2002
 
APPEARANCES:
 
For the Plaintiff:                           Andrea S. Hillyer, Esq.
                                                      P.O. Drawer D
                                                      Kolonia, Pohnpei FM 96941
 
For the Defendant:                     Sasaki L. George, Esq.
                                                     Micronesian Legal Services Corporation
                                                     P.O. Box 38, Tofol
                                                     Lelu, Kosrae FM 96944

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HEADNOTES

Judgments ) Relief from Judgment
     The standard test for whether a judgment is final for Rule 60(b) purposes is usually stated to be whether the judgment is sufficiently final to be appealed. Richmond Wholesale Meat Co. v. George, 11 FSM Intrm. 86, 87 (Kos. 2002).
 
Judgments
     Under Rule 58, every judgment must be set forth in a separate document, and becomes effective only when docketed by the clerk under Rule 79(a). While an order may be final in some circumstances without Rule 58 compliance, the better course, and the one that the court endeavors to follow, is for the trial court to avoid any ambiguity on the finality point by following Rule 58. Richmond Wholesale Meat Co. v. George, 11 FSM Intrm. 86, 87 (Kos. 2002).
 
Civil Procedure ) Motions; Judgments ) Relief from Judgment
     In the absence of the Rule 60(b) finality requirement, the court will deem a putative Rule 60(b) motion as one for reconsideration of the courts order. Richmond Wholesale Meat Co. v. George, 11

[11 FSM Intrm. 87]

FSM Intrm. 86, 88 (Kos. 2002).
 
Civil Procedure ) Dismissal; Civil Procedure ) Summary Judgment and Judgment on the Pleadings
      A motion to dismiss for failure to state a claim may be brought after an answer has been filed by a motion for judgment on the pleadings or at the trial on the merits. But when the movant presents matter outside the pleadings as part of his motion to dismiss, then under Rule 12(c), the motion will be treated as one for summary judgment and disposed of as provided in Rule 56. Richmond Wholesale Meat Co. v. George, 11 FSM Intrm. 86, 88 (Kos. 2002).
 
Civil Procedure) Summary Judgment; Judgments
     When summary judgment is granted for a portion of the plaintiffs claim and when the court finds pursuant to Rule 54(b) that as to this portion of the claim there is no just reason for delay, the court will expressly direct entry of final judgment for that amount. Richmond Wholesale Meat Co. v. George, 11 FSM Intrm. 86, 88 (Kos. 2002).
 
Civil Procedure ) Summary Judgment
     When questions of fact and law exist as to liability for interest charges, a cross motion for summary judgment which seeks dismissal of the interest claim will be denied. Richmond Wholesale Meat Co. v. George, 11 FSM Intrm. 86, 88 (Kos. 2002).

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COURTS OPINION

MARTIN YINUG, Associate Justice:

      The court has received and considered the Defendants Motion for Relief from Operation of the July 10th Court Order/Motion to Dismiss Plaintiffs Claim for Interest, filed by the defendant Webster George ("George") on July 15, 2002, and the response thereto filed by plaintiff Richmond Wholesale Meat Company ("Richmond"), and dated July 29, 2002.

     Georges counsel has moved for relief from judgment under Rule 60(b) of the FSM Rules of Civil Procedure on the basis that he mistakenly calendared the date for filing Georges response to Richmonds motion for summary judgment. Due to the calendaring error, he filed the response five days late.

     Rule 60(b) of the FSM Rules of Civil Procedure provides that a court may relieve a party from "a final judgment, order, or proceeding" for the reasons specified in the rule. "The standard test for whether a judgment is 'final for Rule 60(b) purposes is usually stated to be whether the judgment is sufficiently 'final to be appealed." 12 James Wm. Moore et al., Moores Federal Practice  60.23 at 60-76 (3d ed. 1999). Under Rule 58 of the FSM Rules of Civil Procedure, every judgment must be set forth in a separate document, and becomes effective only when docketed by the clerk under Rule 79(a) of the FSM Rules of Civil Procedure. While an order may be final in some circumstances without Rule 58 compliance, see, e.g., St. Marys Health Ctr. of Jefferson City v. Bowen, 821 F.2d 493, 496-98 (8th Cir. 1987), the better course, and the one that this court endeavors to follow, is for the trial court to avoid any ambiguity on the finality point by following Rule 58. Diamond by Diamond v. McKenzie, 770 F.2d 225, 230 n.10 (D.C. Cir. 1985) ("Rule 58 was designed to remove the uncertainty [about finality] caused when district courts combined opinions with apparently dispositive words.") Given these considerations, the order entered on July 10, 2002, is not a Rule 58 "judgment," and considering the other circumstances of this case, it is not "a final judgment [or] order" within the meaning of Rule 60(b) of the FSM Rules of Civil Procedure.

[11 FSM Intrm. 88]

     In the absence of the finality requirement under Rule 60(b) of the FSM Rules of Civil Procedure, the court deems Georges putative Rule 60(b) motion one for reconsideration of the courts July 10, 2002, order granting the motion for summary judgment. The court notes that counsel promptly rectified the calendaring error, and filed his response to the motion for summary judgment by way of a motion to dismiss as part of his Rule 60(b) motion. The court is able to discern no prejudice accruing to Richmond as a result of the five day delay. The motion for reconsideration is granted. The July 10, 2002, order is vacated.

     Georges motion to dismiss challenges Richmonds claim for interest due on amounts owed for Georges purchases from Richmond and claims that Richmond fails to state a claim in this regard. Rule 12 of the FSM Rules of Civil Procedure specifies the conditions under which a motion to dismiss for failure to state a claim may be brought. Where an answer has been filed, subparagraph (h)(2) provides that "[a] defense of failure to state a claim upon which relief can be granted . . . may be made . . . by motion for judgment on the pleadings, or at the trial on the merits." But where the movant presents ) also as here) matter outside the pleadings as part of his motion to dismiss, then under Rule 12(c) "the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." Thus Georges motion is in general terms one for summary judgment, since it presents matter outside the pleadings. More precisely, it is a cross motion for summary judgment, since Richmond previously moved for summary judgment.

      Richmonds motion for summary judgment is granted to the extent of $6,039.22, which is the principal portion of the claim, and liability for which George admits. Further, the court finds pursuant to Rule 54(b) of the FSM Rules of Civil Procedure that as to this portion of the plaintiffs claim there is no just reason for delay, and expressly directs entry of final judgment for that amount. That judgment, in accordance with Rules 54(b) and 58 of the Rules of Civil Procedure, issues herewith.

      By his cross motion for summary judgment, George challenges the interest portion of Richmonds claim, and claims that he is entitled to judgment in his favor as to the interest because the complaint does not allege an agreement to pay interest. However, an account statement showing that interest charges were added to Georges account monthly over the course of a year is a part of the record in this case. It was attached to the complaint, and subsequently both parties have made it a part of their respective summary judgment motions. As to the interest charges shown in the complaint, there is no indication that George contemporaneously objected to the imposition of these charges. While Richmond urges that its motion for summary judgment should be granted in its entirety based on the fact that requests for admission were not answered on time, those requests go to the principal, and not the interest portion of the claim. Even if the requests were deemed admitted, they would not be dispositive as to interest.

      On this record, questions of fact and law exist as to Georges liability for the interest charges. Accordingly, Georges cross motion for summary judgment which seeks dismissal of the interest claim is denied. This case will proceed on the issue of interest, as it will on the question of Georges liability for attorney fees. All discovery will be complete, which means propounded and answered, by September 30, 2002. All pretrial motions will be filed by October 31, 2002.

     Judgment in accordance with this order issues herewith.

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