FSM STATE SUPREME COURT TRIAL DIVISION

Cite as RRG (FSM) Ltd. v. Maezoto, 15 FSM Intrm. 243 (Pon. 2007)

[15 FSM Intrm. 243]

RRG (FSM) LTD. and ROBERT HO KOON KEE,

Plaintiffs,

vs.

MAKOTO MAEZOTO, GUAM YTK

CORPORATION, TOM KAMIYAMA and

F/V ORYO MARU,

Defendants.

POHNPEI PORT AUTHORITY,

Intervenor,

vs.

RRG (FSM) LTD. and ROBERT HO KOON KEE,

Defendants in Intervention.

CIVIL ACTION NO. 2003-021

ORDER

Andon L. Amaraich

Chief Justice

Decided:  September 18, 2007

APPEARANCE:

For the Defendant:   Stephen V. Finnen, Esq.

     (Maezoto)            P.O. Box 1450

                                 Kolonia, Pohnpei   FM   96941

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HEADNOTES

Civil Procedure ) Motions

      When no response was filed to a motion, the non-response is deemed consent to the granting of the motion. A basis in law and fact must nevertheless exist to grant the motion. RRG (FSM) Ltd. v. Maezoto, 15 FSM Intrm. 243, 244 (Pon. 2007).

Contempt

      When FSM cases have not addressed a precise point (about contempt), in such an instance, the court may consider authorities from other jurisdictions in considering the question before it. RRG (FSM) Ltd. v. Maezoto, 15 FSM Intrm. 243, 244 (Pon. 2007).

[15 FSM Intrm 244]

Contempt

      One of the factors that the court must consider in making a finding of civil contempt is whether the relief requested is primarily for the benefit of the complainant. RRG (FSM) Ltd. v. Maezoto, 15 FSM Intrm. 243, 244 (Pon. 2007).

Contempt

       When the relief sought is an order requiring payment of fees owed not to the movant, but to another, the relief sought is not primarily for the movantís benefit. Accordingly, the motion for an order for parties to show cause why they should not be held in contempt will be denied. RRG (FSM) Ltd. v. Maezoto, 15 FSM Intrm. 243, 244 (Pon. 2007).

Civil Procedure ) Dismissal

      Partiesí claims, however denominated, may be dismissed with prejudice pursuant to Civil Rule 41(b) and (c) for lack of prosecution. RRG (FSM) Ltd. v. Maezoto, 15 FSM Intrm. 243, 244 (Pon. 2007).

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COURTíS OPINION

ANDON L. AMARAICH, Chief Justice:

       On June 19, 2007, defendant Makoto Maezoto filed his motion for an order to show cause why plaintiffs Robert Ho Koon Kee and RRG (FSM) LTD. should not be held in contempt of the court order of March 12, 2004.  The motion recites that the two putative contemnors should be cited for contempt because they have failed to pay certain fees owed to the Pohnpei Port Authority ("PPA") as required by the order of March 12, 2004.  The motion seeks as order requiring the payment to be made by a date certain in accordance with the civil contempt provision of 4 F.S.M.C. 119(2)(a). No response was filed to the motion, and in such a case the non-response is deemed consent to the granting of the motion. FSM Civ. R. 6(d).  A basis in law and fact must nevertheless exist for granting the motion.  Clarence v. FSM Social Sec. Admin., 13 FSM Intrm. 34, 35 (Kos. 2004).

       Maezoto does not seek a contempt citation based on payments that were not made to him, but rather to another party, the PPA.  FSM cases have not addressed this precise point. In such an instance, the court may consider authorities from other jurisdictions in considering the question before it.  Rauzi v. FSM, 2 FSM Intrm. 8, 14-15 (Pon. 1985).

      One of the factors that the court must consider in making a finding of civil contempt is whether the "relief requested is primarily for the benefit of the complainant," 17 Am. Jur. 2d Contempt ß 7 (rev. ed. 1990), who in this instance in Makoto Maezoto.  Cf. Sipos v. Crabtree, 13 FSM Intrm. 355, 365 (Pon. 2005) (holding that a party is required to rely on his own legal rights and interests, and may not base his claim to relief on the legal rights or interests belonging to third parties).  Since the relief sought is an order requiring payment of fees owed not to Maezoto, but to the Pohnpei Port Authority, the relief sought is not primarily for the benefit of Maezoto.  Accordingly, the motion for an order to show cause is denied.

      The parties will file a report with the court regarding the status of the sale of the F/V Oryo Maru on or before October 1, 2007.

      The claims of Guam YTK Corporation and Tom Kamiyama, however denominated, are dismissed with prejudice pursuant to Civil Rule 41(b) and (c) for lack of prosecution.

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