KOSRAE STATE COURT TRIAL DIVISION

Cite as George v. Johnithan, 15 FSM Intrm. 455 (Kos. S. Ct. Tr. 2007)

[15 FSM Intrm. 455]

WEBSTER GEORGE,

Plaintiff,

vs.

MINAESA JOHNITHAN,

Defendant.

CIVIL ACTION NO. 42-96

ORDER DENYING SUBSTITUTION OF PARTIES

Aliksa B. Aliksa

Chief Justice

Hearing:  December 7, 2007

Decided:  December 27, 2007

APPEARANCES:

For the Plaintiff:        Snyder H. Simon, Esq.

                                 P.O. Box 1017

                                 Tofol, Kosrae FM 96944
 

For the Defendant:   Canney L. Palsis, Esq.

                                  Micronesian Legal Services Corporation

                                  P.O. Box 38

                                  Tofol, Kosrae FM 96944

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HEADNOTES

Civil Procedure ) Parties

        The administrator of the deceasedís estate is generally the proper party for substitution rather than relatives of the deceased who are not legal representatives. If the estate has been distributed, then a "successor" may be a proper party. If the representative or successors of the estate were not named, a motion to substitute will be denied. George v. Johnithan, 15 FSM Intrm. 455, 457 (Kos. S. Ct. Tr. 2007).

[15 FSM Intrm 456]

Civil Procedure ) Parties

       A court may exercise its discretion to deny substitution of parties if circumstances have arisen rendering it unfair. Thus, when the plaintiff was specifically ordered to file proof of whether a proper party for substitution existed, such as a copy of an order appointing administrator, and to properly file and serve a motion for substitution addressing whether the cause of action survived the defendantís death or was extinguished, but failed to submit evidence to show that the defendantís widow was a proper party and failed to submit evidence to show the claim was not extinguished and when there is no administrator or legal representative of the estate and no evidence showing inheritable interests or even suggesting there was property to distribute, a substitution of the deceasedís relatives under Rule 25(a)(1) will be denied. George v. Johnithan, 15 FSM Intrm. 455, 457 (Kos. S. Ct. Tr. 2007).

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COURTíS OPINION

ALIKSA B. ALIKSA, Chief Justice:

       This Court issued a Notice of Proposed Dismissal on August 27, 2007. The Defendant had passed away on December 22, 2006. Snyder Simon represents Plaintiff. Canney Palsis represents Defendant.

      On September 19, 2007, Plaintiff was ordered to file proof of whether a proper party for substitution exists, such as a copy of an Order Appointing Administrator, and to file and serve a motion for substitution on whether the cause of action survived the death of Defendant or was extinguished. Plaintiff was reminded to serve any party proposed for substitution. Plaintiff did not file a written motion for substitution or evidence of whether a proper party for substitution exists.

      A hearing was held on December 7, 2007 on whether a proper party for substitution exists under Rule 25(a)(1), Kosrae Rules of Civil Procedure. Plaintiff argued that two cases supported substituting Defendantís widow. However, neither case supports Plaintiffís argument.

       First, in Beal Bank S.S. B. v. Maras, 11 FSM Intrm 351 (Chk. 2003), plaintiffs requested that pleadings be amended to change the name of one of the plaintiffs. The Court relied on FSM Civ. R. 17(a) to substitute a real party in interest. Beal Bank, 11 FSM Intrm. at 354. In addition, without discussion, the Court dismissed one of the defendants because he was deceased and no motion for substitution was filed within the 90-day limit. Id. To the extent it addresses the issue presented, Beal supports dismissal because the defendant in this matter is deceased and no motion for substitution was filed within the 90-day limit.

      In the second case, Bank of FSM v. Rodriguez, 11 FSM Intrm. 542 (Pon. 2003), defendant was in contempt for failing to comply with a court order requiring him to pay $65.00 per month, seek immediate employment, and sentencing defendant to jail if he did not comply. The FSM Supreme Court vacated parts of the contempt order that required defendant to seek employment and remanded the matter for the limited purpose of making a finding on his fitness to work. After remand, defendant passed away and a dismissal was requested. The FSM Supreme Court held that a hearing on fitness to work clearly would not be held, but that the judgment would not be dismissed as it had not been extinguished. The Court noted that it had no power to order defendant to do anything to satisfy the judgment and closed the case. No substitution of parties was requested. To the extent this case addresses the issue presented here, it supports closing the matter as this Court also has no power to order the Defendant to do anything to satisfy the judgment.

[15 FSM Intrm 457]

      The administrator of the deceasedís estate is generally the proper party for substitution rather than relatives of the deceased who are not legal representatives. Damarlane v. FSM, 8 FSM Intrm 10, 12 (Pon. 1997). If the estate has been distributed, then a "successor" may be a proper party. Id. Damarlane concerned the ownership of land, which is inheritable. Based on that factual showing, the Court allowed plaintiffs time to substitute the representative or successors of the estate of the deceased plaintiff. If the representative or successors of the estate were not named, the motion to substitute was to be denied. Id.

      Also, a court may exercise its discretion to deny substitution if circumstances have arisen rendering it unfair. See, for example, Anderson v. Yungkau, 329 U.S. 483, 485, 486, 67 S. Ct. 428, 430, 431, 91 L. Ed. 436, 439, 440 (1947) (substitution denied even though filed within the time limit). In the current matter, Plaintiff was specifically ordered to file proof of whether a proper party for substitution exists, such as a copy of an Order Appointing Administrator, and to properly file and serve a motion for substitution addressing whether the cause of action survived the death of Defendant or was extinguished. In spite of this Order, Plaintiff failed to submit evidence to show Defendantís widow was a proper party and failed to submit evidence to show the claim was not extinguished. There is no administrator or legal representative of the estate. There is no evidence showing inheritable interests such as ownership of land. No evidence or documentation has been submitted even suggesting there was property to distribute.

      Based on the above circumstances, a substitution of the deceasedís relatives under Kos. Civ. R. 25(a)(1) is denied.

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