THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as International Trading Corp. v. Ikosia,
7 FSM Intrm. 17 (App. 1995)

[7 FSM Intrm. 17]

INTERNATIONAL TRADING CORPORATION,
Plaintiff,

vs.

MADLINA IKOSIA and BENSON IKOSIA d/b/a
MEI ENGINEERING AND CONSTRUCTION COMPANY,
Defendants.

CIVIL ACTION NO. 1994-114

ORDER
 
Andon L. Amaraich
Associate Justice

Decided:  January 16, 1995

APPEARANCES:
For the Plaintiffs:        Delson Ehmes, Esq.
                                     P.O. Box 1018
                                     Kolonia, Pohnpei FM 96941

For the Defendant:     John Brackett, Esq.
                                     P.O. Box 209
                                     Kolonia, Pohnpei FM 96941

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[7 FSM Intrm. 18]

HEADNOTES
Civil Procedure ) Joinder and Severance
     Any party may move to strike a third-party claim, or for its severance or separate trial. The decision whether to sever a third-party complaint is left to the sound discretion of the trial court.  In determining whether to sever a third-party complaint, a court considers whether continued joinder of claims will unduly complicate or delay the primary action.  International Trading Corp. v. Ikosia, 7 FSM Intrm. 17, 18 (Pon. 1995).

Civil Procedure ) Joinder and Severance
     Where resolution of issues in a third-party complaint is unnecessary to the resolution of the primary claim and will result in a delay in he resolution of the primary claim, and the answer to the third-party complaint has added more complex issues, unrelated to the primary action, a motion to sever may be granted.  International Trading Corp. v. Ikosia, 7 FSM Intrm. 17, 19 (Pon. 1995).

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COURT'S OPINION
ANDON L. AMARAICH, Associate Justice:
     In this action, plaintiff seeks to recover $22,769.93 allegedly owed plaintiff for construction materials sold to defendants.  Defendants deny liability, but have filed a third-party complaint against Mr. Barnabe Abott, a former employee of defendant MEI Engineering, seeking contribution and/or indemnification in the event that defendants are found liable for the alleged debt.  The third-party defendant subsequently filed a counterclaim against defendants and a complaint against Mr. Mathias Lawrence, a party with an apparent employment relationship with defendant MEI Engineering.

     On September 26, 1994, plaintiff filed a Motion to Sever Defendants' Third-Party Complaint, pursuant to FSM Civil Rule 14(a).  Defendants have not filed an opposition to plaintiff's Motion to Sever.  Defendants' failure to file a memorandum of points and authorities in opposition to plaintiff's motion constitutes defendants' consent to plaintiff's motion.  FSM Civ. R. 6(d). However, defendants' consent is not, in and of itself, a sufficient basis for this Court to grant the motion.  Plaintiff's motion must be well grounded in fact and law for this Court to grant it.  In re Parcel No. 046-A-1, 6 FSM Intrm. 149, 153 (Pon. 1993).

     FSM Civil Rule 14(a) provides that "[a]ny party may move to strike [a] third-party claim, or for its severance or separate trial."  Plaintiff argues that severance of the third-party complaint in this case is appropriate because the issues raised by the third-party complaint are unrelated to the issues in the principal action and that inclusion of the third-party action in the principal action will lead to unnecessary confusion and delay.

     The decision whether to sever a third-party complaint is left to the sound discretion of the trial court.  Kosters v. Seven-Up Co., 595 F.2d 347, 355-56 (6th Cir. 1979); United States v. Kramer, 770 F. Supp. 954, 957 (D.N.J. 1991) (instructing that Rule 14(a) "entrust[s] the decision of whether issues should be separated for trial to the discretion of the trial court").  In reaching a determination as to whether to sever a third-party complaint, the Court considers whether continued joinder of claims will unduly complicate or delay the primary action.  See 6 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 1460, at 457 (1990); see also Kosters, 595 F.2d at 356 (severing third-party indemnification claims due to complication and confusion that would arise from inclusion of third-party claims at trial).

[7 FSM Intrm. 19]

     The primary action in this case is a fairly simple breach of contract action in which plaintiff alleges that defendants have failed to pay in full for construction materials delivered to defendants.  In contrast, the third-party complaint, seeking indemnification, raises multiple issues unrelated to the primary action. Many of these unrelated issues are factually and potentially legally complex. For example, the third-party complaint raises issues regarding the scope of the authority of the third-party defendant while acting as an employee of defendants, whether the third-party defendant acted within the scope of that authority, and whether defendant performed his job in a negligent manner. Resolution of these and other issues is unnecessary to the resolution of the primary claim and will result in a delay in he resolution of the primary claim. Additionally, the third-party defendant has himself filed a complaint against Mr. Mathias Lawrence.  This complaint raises, inter alia, factual issues regarding whether defendant MEI's funds have been distributed properly, as well as adding yet another party to this action.  The inclusion of this most recent complaint in this action adds more complex issues, which are unrelated to the primary action, and which will result in further delay in the resolution of the primary action.  In light of the burgeoning size and complexity of this case, with the ensuing possibility for delay, the Court finds that plaintiff's Motion to Sever is well grounded in fact and law.

Conclusion
     Accordingly, it is hereby ordered that plaintiff's Motion to Sever is granted. Both the third-party complaint and the third-party defendant's complaint against Mr. Mathias Lawrence are severed from the primary action.

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