[24 FSM R. 55]

The court, on October 25, 2022, granted the OAE summary judgment that the IRU Deed is a legally valid and enforceable contract, with the possible exception of the terms involving repayment of 50% of the Rural Utility Services Hantru loan to Telecom, and that the OAE has an indefeasible right to use 50% of the Hantru cable spectrum from Pohnpei to Guam and indefeasible rights to use the submarine cables between Guam and Yap and between Pohnpei and Chuuk and the East Micronesia Cable system ("EMC") once that project is built, but denied summary judgment on the exact amounts Telecom owed the OAE. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 23 FSM R. 667, 689 (Pon. 2022).

The OAE now moves the court to enter a partial final judgment against Telecom on the OAE's claim for a declaratory judgment that the IRU Deed is a valid and enforceable contract and on the sums that were due under that contract. Telecom opposes any partial final judgment.

The OAE contends that its declaratory judgment claim should be entered as a final judgment now, rather than awaiting the resolution of other issues. The OAE first asks that the court reconsider the part of its October 25, 2022 order and clarify what issues remain for trial and then rule that its unpaid monthly invoices should be included in the partial final judgment as undisputed because its operations charges are not in dispute and because Telecom's claimed offset for 50% of the Hantru cable repayment has no bearing on the prospective enforcement of the IRU Deed or Telecom's liability for operations charges. The OAE asserts that the lack of a final judgment that the IRU Deed is a legally binding and enforceable contract hinders its ability to move forward on the EMC project to connect Kosrae, Nauru, and Kiribati by fiber optic cable to its Hantru cable connection on Pohnpei by sowing doubt with the project's financiers and with the project's partners (Nauru and Kiribati) about whether the EMC would be feasible as long as its ability to connect to the Hantru cable for onward connections remains in question.

Telecom opposes any partial final judgment because it disputes the amounts owed to the OAE under the IRU Deed and asserts that these issues should be resolved before any judgment issues and adds that all of the damages should be determined in one final judgment. Telecom also emphasizes the judicial policy against piecemeal appeals. And further, Telecom asserts that a declaratory judgment is unneeded because it has issued a joint statement with the OAE in which Telecom pledges that it supports the connection and development of fiberoptic cables to Kosrae and points beyond and that it will not challenge the OAE's reasonable connection to the Hantru cable.

II.

"When more than one claim for relief is presented . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims," but this can be done "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." FSM Civ. R. 54(b); See also Andrew v. Heirs of Seymour, 19 FSM R. 331, 337-38 (App. 2014); Iriarte v. Individual Assurance Co., 17 FSM R. 356, 358 (App. 2011) (when either the no-just-reason-for-delay element or the express-direction-for-the-entry-of-judgment element is absent, even if only by oversight, the partial adjudication does not carry final judgment status).

Among the OAE's claims for relief is its prayer for "Declaratory relief in the form of an order declaring the FSMTC IRU Deed a legally binding contract in which the OAE has legally enforceable rights." Compl. at 47 (Apr. 9, 2021). The rest of the OAE's claims for relief either seek monetary damages or injunctive relief.¹ A claim for a declaratory judgment can be a separate claim for which a Rule 54(b) partial final judgment may be entered. Consumers' Research v. Consumer Prod. Safety Comm'n, 592 F. Supp. 3d 568, 590 (E.D. Tex. 2022); Texas v. United States, 352 F. Supp. 3d 665, 670-71 (N.D. Tex. 2018).² That is the case here. The money damages claim may be addressed separately in the currently scheduled May 16, 2023 trial.

Next, the court must find that there is no just reason for delay. FSM Social Sec. Admin. v. Jonas, 13 FSM R. 171, 173 (Kos. 2005). "[I]n deciding whether there are no just reasons to delay the appeal of individual final judgments . . . a [trial] court must take into account judicial administrative interests as well as the equities involved." Curtiss-Wright Corp. v. General Elec. Co. 446 U.S. 1, 8, 130 S. Ct. 1460, 1465, 64 L. Ed. 2d 1, 11 (1980). But "[n]o precise test exists for determining there is a just reason to delay the entry of judgment that can be satisfactorily or easily applied to every case." 10 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2659, at 107 (4th ed. 2014). "The mere presence of [counter]claims, however, does not render a Rule 54(b) certification inappropriate. If it did, Rule 54(b) would lose much of its utility." Curtiss-Wright Corp., 446 U.S. at 9, 130 S. Ct. at 1465, 64 L. Ed. 2d at 11.

Telecom's remaining defenses, setoffs, and counterclaims all go to the amount it may owe to the OAE; that is, to the OAE's money judgment claim. If the declaratory (partial) final judgment and a later money judgment are both appealed, the declaratory judgment would not need to be reviewed a second time because the declaratory judgment only addresses the IRU Deed contract formation while a later money judgment will address only the amount due under that contract in light of any relevant facts determined at trial.

Although trial of remaining issues in this matter is currently set for May 16, 2023, there is no guarantee that there will not be some unforeseen further delay in reaching a complete final judgment. (This action has already been delayed further than it ought to have been.) The equities weigh in the OAE's favor because the OAE (and its financiers and partners) deserve at least some certainty about the OAE's ability to use its spectrum on the Hantru cable system between Pohnpei and Guam and its ability to connect a functional EMC project to the Hantru system so as to allow through connectivity from Kosrae, Nauru, and Kiribati to Guam. The court sees no just reason for delay.

It is within the trial court's discretion to make a Rule 54(b) certificate, subject always to reversal for abuse of discretion. 10 WRIGHT, MILLER & KANE, supra, § 2659, at 102. The court concludes that this is an appropriate case to exercise its discretion.

III.

Accordingly, there being no just reason for delay, the court hereby directs that the clerk enter a partial final judgment in the form of a declaratory judgment that the Deed Granting Indefeasible Rights of Use executed between the parties on February 2, 2018, is, with the exception of the terms involving repayment of 50% of the Rural Utilities Service Hantru loan which the court has already severed from the rest of the IRU Deed, FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 23 FSM R. 667, 688-89 (Pon. 2022), a valid and enforceable contract.

Footnotes:

¹ Preliminary injunctive relief has already been granted. See FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 23 FSM R. 360 (Pon. 2021). Injunctive relief, or denial thereof, is appealable without a final judgment. FSM App. R. 4(a)(1)(B).

² Although the court must first look to FSM sources of law instead of starting with a review of other courts' cases, when an FSM court has not previously construed an aspect of an FSM civil procedure rule which is drawn from a U.S. counterpart, the court may look to U.S. sources for guidance. E.g., Senda v. Mid-Pacific Constr. Co., 6 FSM R. 440, 444 (App. 1994). FSM Civil Procedure Rule 54(b) tracks U.S. Federal Civil Procedure 54(b).