Chuuk State Board of Education v Sony [2008] FMCSC 16; 16 FSM Intrm. 213 (Chk. S. Ct. Tr. 2008) (17 December 2008)

CHUUK STATE SUPREME COURT TRIAL DIVISION

CSSC-CA. NO. 84-2008

CHUUK STATE BOARD OF EDUCATION,
Plaintiff,

vs.

SANFIO A. SONY, in his official capacity as purported acting director of the Department of Education, JOSES R.GALLEN, in his official capacity as Attorney General, JONAS PAUL, in his official capacity as acting director of the Department of Administrative Services, JIMMY EMILIO, in his official capacity as Director of the Department of Public Safety,
Defendants.

__________________________________________

ORDER DENYING MOTION TO DISMISS

Camillo Noket
Chief Justice

Hearings: October 22, November 14, 2008
Decided: December 17, 2008

APPEARANCES:

For the Plaintiffs: Ben K. Enlet
P.O. Box 1650
Weno, Chuuk FM 96942

For the Defendants: Charleston Bravo
Assistant Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure  Dismissal; Jurisdiction
A motion to dismiss for lack of standing is a claim that the court lacks subject matter jurisdiction and is properly filed in lieu of an answer under Rule 12(b)(1), or as a motion to dismiss under Rule 12(h)(3), which can be raised at any time, even after judgment. It is the plaintiff's burden to show that the court has jurisdiction, and that a colorable claim exists. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 217 (Chk. S. Ct. Tr. 2008).

Civil Procedure  Dismissal; Jurisdiction
It is within the court's discretion to allow or disallow affidavits and other matters outside the pleadings to be brought in when considering a motion to dismiss challenging the court's subject matter jurisdiction. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 217 (Chk. S. Ct. Tr. 2008).

Civil Procedure
When courts in the FSM have not specifically construed the application of a procedural rule, the court may look for guidance to American jurisprudence interpreting a similar or identical rule's application. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 218 n.1 (Chk. S. Ct. Tr. 2008).

Civil Procedure  Dismissal
In ruling on a 12(b)(6) motion, the court is limited to evaluating whether a plaintiff's case has been adequately stated in the complaint. It is not appropriate for the court to resolve factual disputes or the case's merits; rather, the court must presume the non-moving party's allegations to be true, and view inferences drawn from the allegations in a light most favorable to the non-moving party. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 218 (Chk. S. Ct. Tr. 2008).

Civil Procedure  Dismissal
A motion to dismiss for failure to state a claim may be granted only if it appears to a certainty that no relief could be granted under any state of facts which could be proven in support of the claim. Therefore, when there are significant issues of fact, the motion to dismiss must be denied. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 218 (Chk. S. Ct. Tr. 2008).

Civil Procedure  Dismissal; Civil Procedure  Summary Judgment
The court has the discretion to include or exclude matters outside the pleadings on a motion to dismiss for failure to state a claim, and if matters outside the pleading are presented to and not excluded by the court, the motion is treated as one for summary judgment. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 218 (Chk. S. Ct. Tr. 2008).

Civil Procedure  Dismissal; Civil Procedure  Summary Judgment
Unlike a 12(b)(6) motion to dismiss, a 12 (b)(1) motion to dismiss may not be converted into a motion for summary judgment. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 218 n.2 (Chk. S. Ct. Tr. 2008).

Civil Procedure  Summary Judgment
The rules of civil procedure do not prevent the filing of a summary judgment motion before the filing of an answer. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 218 (Chk. S. Ct. Tr. 2008).

Civil Procedure  Dismissal; Civil Procedure  Summary Judgment
If the court converts a motion to dismiss to one for summary judgment, the parties must be given a reasonable opportunity to prepare so that no party is taken by surprise, and if issues of fact remain after the conversion, the court will deny the motion and set the case for trial. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 218, 221 n.4 (Chk. S. Ct. Tr. 2008).

Civil Procedure  Dismissal; Constitutional Law  Case or Dispute  Standing
The issue of standing is a threshold issue going to a court's subject matter jurisdiction and therefore standing is properly challenged in the form of a motion to dismiss brought under Rule 12(b)(1) because when a plaintiff does not have standing to pursue an action, the court lacks subject matter jurisdiction over the action and the case will be dismissed. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 219 (Chk. S. Ct. Tr. 2008).

Constitutional Law  Chuuk  Case or Dispute  Standing
Although the standing requirement is not explicitly stated in the Chuuk constitution, the implied requirement that a party have standing should be interpreted to implement the constitutional requirement that a "case" or "dispute" exist. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 219 (Chk. S. Ct. Tr. 2008).

Constitutional Law  Chuuk  Case or Dispute
The judicial decision-making power is typically exercised by a court which has heard competing contentions of adversaries having sufficient interests in the outcome to thoroughly consider, research, and argue the points at issue. Even then, a court's declarations of law should be limited to rulings necessary to resolve the dispute before it. Thus, the case must be one appropriate for judicial determination, that is, a justiciable controversy, as distinguished from a difference or dispute of a hypothetical or abstract character, or one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 219 (Chk. S. Ct. Tr. 2008).

Civil Procedure  Declaratory Relief; Constitutional Law  Chuuk  Case or Dispute
When the plaintiff seeks declaratory relief, the court has jurisdiction to issue a declaratory judgment so long as there is a case or dispute within the meaning of Chuuk Constitution, article VII, §§ 3 a Chuuk State Bd. of E of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 219 (Chk. S. Ct. Tr. 2008).

Civil Procedure  Dismissal; Constitul Law  Chuuk  Case or Dispute  Stan Standing
When jurisdictional issues are inextricably intertwined with the case's merits and issues of fact remain, a motion to dismiss for lack of subject matter jurisdiction will be denied, and if a motion to dismiss for lack of standing is denied, the court does not somehow imply that, at that stage of the proceedings, it has made any findings on a claim's merits. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 219 (Chk. S. Ct. Tr. 2008).

Constitutional Law  Chuuk  Case or Dispute  Standing
When the record is not sufficiently developed to enable the court to either resolve the factual and legal issues as to whether Board members' terms had expired when the decision to terminate the director was made, or to determine if, as a matter of law, the Board members were legally entitled to act in a de facto capacity despite the expiration of their terms, there are still significant factual and legal issues that need resolution before the court can make a final determination on the Board's standing to sue the director. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 219-20 (Chk. S. Ct. Tr. 2008).

Constitutional Law  Chuuk  Case or Dispute  Standing
When the Board has a clear statutory mandate allowing it to terminate a director for cause; when there is no authority to support the argument that a governmental agency or department must obtain the Attorney General's consent in order to file suit over a matter that is committed to its discretion; and when the Attorney General is a defendant in the lawsuit, it would severely test the notion that the Board has certain matters committed to its discretion if it could not enforce the exercise of its discretion without an adversary's consent. When it is alleged that the Director failed to comply with the Board's decision to terminate his directorship, and the Board has the discretion to terminate the director for cause, the Board has standing to enforce the exercise of its discretion since whether the Board's exercise of its statutory duty to terminate the director was legal and enforceable is a justiciable controversy in which the Board has a direct interest. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 220 (Chk. S. Ct. Tr. 2008).

Constitutional Law  Chuuk  Case or Dispute  Standing
If the Attorney General did have exclusive authority to determine when suits could be brought by instrumentalities of the executive branch, then all matters committed to the discretion of executive officials would, in effect, really be within the Attorney General's discretion. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 220 n.3 (Chk. S. Ct. Tr. 2008).

Constitutional Law  Chuuk  Case or Dispute  Standing
When the Attorney General's office is representing an opposing party and therefore disqualified from representing the Board and when the question of whether the Board had the authority to terminate a directorship and of whether that termination was valid creates a case or dispute that is ripe for judicial determination, the Attorney General's consent is not required for there to be standing. And any issues regarding the Board's chosen counsel may be addressed through a motion to disqualify or other means, but it is not relevant to standing analysis. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 220-21 (Chk. S. Ct. Tr. 2008).

Constitutional Law  Chuuk  Case or Dispute
When the primary issue is whether the Board had legal authority to terminate a director at the time the termination was allegedly made and when that issue remains a living controversy regardless of who the current Board members are, the action will continue unabated. Chuuk State Bd. of Educ. v. Sony, [2008] FMCSC 16; 16 FSM Intrm. 213, 221 (Chk. S. Ct. Tr. 2008).

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COURT'S OPINION

CAMILLO NOKET, Chief Justice:

I. BACKGROUND

1. Plaintiff Board of Education filed its complaint on August 19, 2008 and completed service of process on August 21, 2008. The Board sought declaratory and injunctive relief in relation to its alleged termination of Sanfio A. Sony as director of the Department of Education.

2. On September 22, 2008, in lieu of an answer, defendants filed their omnibus motion to dismiss.

3. On October 20, 2008, the Board filed its response to the motion to dismiss.

4. By order issued on September 29, 2008, a hearing on the motion to dismiss was scheduled for October 22, 2008.

5. On October 22, 2008, the court heard oral argument on the omnibus motion to dismiss, but before completion of the hearing, the matter was continued until November 14, 2008.
6. On November 14, 2008, defendants filed a supplemental motion to dismiss.

7. On the same day, counsel for the parties completed their oral arguments on the issues for dismissal.

8. During oral argument, each counsel called witnesses and introduced exhibits.

II. ISSUES

Each of defendants' motions to dismiss was brought pursuant to Chuuk State Civil Rules of Procedure 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to state claim. In their September 22, 2008 omnibus motion to dismiss, defendants' central contention is that the court lacks subject matter jurisdiction, because the Board did not have standing to bring suit. Defendants' first argument for lack of standing is that the Board did not have sufficient quorum and therefore had no legal authority to file suit. Defendants' second standing argument is that the Board lacks standing because the Attorney General's office did not authorize the suit, and the Board is not statutorily authorized to obtain independent counsel without the Attorney General's consent. Each of these arguments is based on Rule 12 (b)(1). Defendants' third argument, contending that the Board failed to state a claim under Rule 12(b)(6), is that the Board doesn't have the authority to seek its own counsel. Defendants' fourth argument, which is more in the nature of a request for attorney disqualification than for dismissal, is that the Board's counsel is incompetent to represent it, as proceedings on behalf of an executive agency must be initiated by the Attorney General's office.

In their November 14, 2008 supplemental motion to dismiss, defendants argue that new members have been confirmed to the Board since this action was initiated, and therefore the Board, as constituted when the action was filed, is no longer the real party in interest, and the case is moot.

At the November 14, 2008 hearing, defendants presented evidence on the contractual arrangement between defendants and their counsel, documentary evidence intended to show that the Board members' terms had expired, and testimonial evidence that the lawsuit was filed without the consent of the Attorney General's office and that the Board's action was in violation of a legal opinion from the Attorney General's office, which concluded that, as a result of the expiration of board members' terms, the Board did not have quorum to legally terminate Mr. Sony's directorship.

III. THE LAW

A. Civil Rule 12 (b)(1) motion to dismiss for lack of subject matter jurisdiction

A motion to dismiss for lack of standing is a claim that the court lacks subject matter jurisdiction and is properly filed in lieu of an answer pursuant to Rule 12(b)(1), or as a motion to dismiss pursuant to Rule 12(h)(3), which can be raised at any time, even after judgment. Rubin v. Fefan Election Comm'n, [2003] FMCSC 11; 11 FSM Intrm. 573, 578 n.3 (Chk. S. Ct. Tr. 2003); Udot Municipality v. FSM, [2000] FMSC 21; 9 FSM Intrm. 560, 562 (Chk. 2000); Island Dev. Co. v. Yap, [1999] FMSC 36; 9 FSM Intrm. 220, 222 (Yap 1999); Chk. Civ. R. 12. It is the plaintiff's burden to show that the court has jurisdiction, and that a colorable claim exists. Udot Municipality, 9 FSM Intrm. at 562.

In this case, defendants presented witnesses testimony and other matters outside the pleadings in support of their motions. Although the court does not find any FSM authority specifically addressing whether it is appropriate to hold an evidentiary hearing on a 12(b)(1) motion to dismiss, it is generally settled in other jurisdictions that it is within the court's discretion to allow or disallow affidavits and other matters outside the pleadings to be brought in when considering a motion to dismiss challenging the court's subject matter jurisdiction. See, e.g., Elektra Industries, Inc. v. Honeywell, Inc., 58 F.R.D. 118, 120 (N.D. Ill. 1973); see also Grafon Corp. v. Hausermann, [1979] USCA7 553; 602 F.2d 781 (7th Cir. 1979) (court may properly look beyond jurisdictional allegations of complaint and to whatever evidence submitted on issue to determine whether or not subject matter jurisdiction exists); see also Menchaca v. Chrysler Credit Corp., [1980] USCA5 424; 613 F.2d 507 (5th Cir. 1980) ("factual attack" on complaint, in contrast to a "facial attack" on complaint, challenges existence of subject matter jurisdiction in fact, irrespective of pleadings, and matters outside pleadings, such as testimony and affidavits, are considered); Helton v. United States, 532 F. Supp. 813 (S.D. Ga. 1982) (same); Pintozzi v. Scott, [1971] USCA7 76; 436 F.2d 375, 378 n.3 (7th Cir. 1970) (the only way district court could determine if it lacked subject matter jurisdiction was to consider matters outside the pleadings) (citing 2A Moore's Federal Practice, § 1209).[1]

B. Civil Rule 12 (b)(6) motion to dismiss for failure to state a claim

The secosis asserted for dismissal is that the Board fails to state a claim pursuant to Civil Rule Rule 12(b)(6). Chk. Civ. R. 12(b)(6). In ruling on a 12(b)(6) motion, the court is limited to evaluating whether a plaintiff's case has been adequately stated in the complaint. Dorval Tankship Pty, Ltd. v. Department of Finance, [1997] FMSC 24; 8 FSM Intrm. 111, 114 (Chk. 1997). It is not appropriate for the court to resolve factual disputes or the merits of the case on a 12(b)(6) motion to dismiss. Id. Rather, the court must presume the non-moving party's allegations to be true, and view inferences drawn from the allegations in a light most favorable to the non-moving party. Rubin v. Fefan Election Comm'n, [2003] FMCSC 11; 11 FSM Intrm. 573, 577-78 (Chk. S. Ct. Tr. 2003); Moses v. M.V. Sea Chase, [2001] FMSC 56; 10 FSM Intrm. 45, 52 (Chk. 2001). A motion to dismiss for failure to state a claim may be granted only if it appears to a certainty that no relief could be granted under any state of facts which could be proven in support of the claim. Id.; see also AHPW, Inc. v. FSM, [2000] FMSC 2; 9 FSM Intrm. 301, 305-06 (Pon. 2000) (when a defendant draws its own legal conclusions from the complaint's alleged facts, its comments are not a sufficient basis on which to dismiss a complaint). Therefore, where there are significant issues of fact, the motion to dismiss must be denied. Lonno v. Trust Territory (III), [1983] FMSC 4; 1 FSM Intrm. 279, 281 (Kos. 1983).

The court has the discretion to include or exclude matters outside the pleadings on a motion to dismiss for failure to state a claim. Wainit v. Weno, [1995] FMCSC 5; 7 FSM Intrm. 121, 122 (Chk. S. Ct. Tr. 1995); Latte Motors, Inc. v. Hainrick, [1995] FMSC 31; 7 FSM Intrm. 190, 192 (Pon. 1995); Etscheit v. Adams, [1994] FMSC 6; 6 FSM Intrm. 365, 386 (Pon. 1994). If matters outside the pleading are presented to and not excluded by the court, however, the motion is treated as one for summary judgment. Etscheit, 6 FSM Intrm. at 386.[2] The rules of civil procedure do not prevent the filing of a motion for summary judgment prior to the filing of an answer. See Chk. Civ. R. 56 (a), (b) (under subsection (a), a claimant may file a motion for summary judgment after the expiration of 20 days from commencement of an action; under subsection (b), a defending party may move for summary judgment at any time after commencement of the action). If the court converts a motion to dismiss to one for summary judgment, however, the parties must be given a reasonable opportunity to prepare so that no party is taken by surprise. See U.S. Federal Rules of Civil Procedure, Advisory Committee Notes, 1946 Amendment, Subdivision (b) ("If a motion under Rule 12(b)(6) is converted into a summary judgment motion . . . parties shall ben iveeasoreasonable opportunity to submit affidavits and extraneous proofs to avoid taking a party by surprise through the conve of ttion into a motion for summary judgment"). If issues of fact remain after the cone conversiversion, the court will deny the motion and set the case for trial. William v. Director of Public Works, 11 FSM Intrm. 45, 47 (Chk. S. Ct. Tr. 2002).

C. Standing

Defendants' arguments for dismissal challenge the Board's standing. The issue of standing is a threshold issue going to a court's subject matter jurisdiction and therefore standing is properly challenged in the form of a motion to dismiss brought pursuant to Rule 12(b)(1) of the Chuuk State Supreme Court Rules of Civil Procedure. See Eighth Kosrae Legislature v. FSM Dev. Bank, [2003] FMSC 27; 11 FSM Intrm. 491, 496 (Kos. 2003). When a plaintiff does not have standing to pursue an action, the court lacks subject matter jurisdiction over the action and the case will be dismissed. Id. at 501.

Although the standing requirement is not explicitly stated in the Chuuk constitution, the implied requirement that a party have standing should be interpreted to implement the constitutional requirement that a "case" or "dispute" exist. Chk. Const. art. VII, §§ 3 andi>see also FSM ConM Const. art. XI, §§ 6(a), 6(b);n re Sproat,, 2 FSM Intrm. 1, 4 (Pon. 1985). The judicial decision-making power is typically exercised by a court which has heard competing contentions versaries having sufficient interests in the outcome to thoo thoroughly consider, research and argue the points at issue. Even then, a court's declarations of law should be limited to rulings necessary to resolve the dispute before it. In re Sproat, 2 FSM Intrm. at 4. Thus, the case must be one "appropriate for judicial determination," that is, a "justiciable controversy," as distinguished from a "difference or dispute of a hypothetical or abstract character," or one that is "academic or moot." The controversy must be "definite and concrete, touching the legal relations of parties having adverse legal interests." Id. at 5; see also Ponape Chamber of Commerce v. Nett Mun. Gov't, [1984] FMSC 2; 1 FSM Intrm. 389, 401 (Pon. 1984).

Where the plaintiff seeks declaratory relief, the court has jurisdiction to issue a declaratory judgment so long as there is a case or dispute within the meaning of Chuuk Constitution, article VII, §§ 3 and 4. See, ei>, UdUdot Municipality v. FSM, [2001] FMSC 29; 10 FSM Intrm. 354, 358 (Chk. 2001) (addressing FSM constitutional provision for case or dispute); Dorval Tankship Ptd., 8 FSM Intrm. at 115.

In cases where jere jurisdictional issues are inextricably intertwined with the merits of a case and issues of fact remain, a motion to dismiss for lack of subject matter jurisdiction will be denied. See Flores v. Kelley, 61 F.R.D. 442, 445 (N.D. Ind. 1973) (denying summary judgment); see also Elektra Indus., Inc. v. Honeywell, Inc., 58 F.R.D. 118, 120 (N.D. Ill. 1973). If a motion to dismiss for lack of standing is denied, however, the court does not somehow imply that, at that stage of the proceedings, it has made any findings on the merits of a claim. Ambros & Co. v. Board of Trustees, [2003] FMSC 5; 11 FSM Intrm. 333, 336 (Pon. 2003).

IV. APPLICATION OF THE LAW

In its complaint, the Board alleged that it duly made a decision to terminate Sanfio A. Sony's directorship of the Department of Education, and it brought suit for declaratory and other relief to enforce its decision after Sony, with the assistance of the Attorney General and Public Safety, refused to comply with the decision. Complaint 9-17. As alleged, the terms of the Board members were valid as of and up until the filing of the complaint. Id. at 16.

Defendants' first argumentthat the Board lacked standing to bring suit because the board members' terms were expiredis essentially an argument that the Board acted without legal authority. In essence, this standing argument is identical to the primary issue to be addressed on the merits: did the Board have legal authority to act when it sought to terminate Mr. Sony's directorship and brought suit to seek enforcement of that action? With respect to that issue, the court finds that the record is not sufficiently developed to enable the court to either resolve the factual and legal issues as to whether Board members' terms had expired when the decision to terminate Mr. Sony's directorship was made, or to determine if, as a matter of law, the Board members were legally entitled to act in a de facto capacity despite the expiration of their terms. Therefore, the court finds that there are still significant factual and legal issues that need to be resolved before the court can make a final determination on standing. See Flores, 61 F.R.D. at 445.

With respect to defendants' second standing argumentthat the Board was not authorized to file a lawsuit by the Attorney Generalthe court finds that the Board has a clear statutory mandate allowing it to terminate a directorship for cause. Chk. S.L. No. 191-15, § 6 (The Board may by ity voty vote remove a member of the Board for misconduct, incompetence, neglect of duty, failure to attend three meetings withost cause, or other good cause). Defendants do not cite, and the court does not find, any auny authority to support the argument that an agency or department of the government must obtain the consent of the Attorney General in order to file suit over a matter that is committed to its discretion.[3] Considering the fact that the Attorney General is a defendant in the lawsuit, it would severely test the notion that the Board has certain matters committed to its discretion if it could not enforce the exercise of its discretion without the consent of an adversary. Where, as here, it is alleged that the Director failed to comply with the Board's decision to terminate his directorship, and the Board has the discretion to terminate the director for cause, the Board has standing to enforce the exercise of its discretion. See Edgar v. Truk Trading Co., [2005] FMSC 1; 13 FSM Intrm. 112, 115 (Chk. 2005) (a party has standing to sue when the party has a sufficient stake or interest in an otherwise justiciable controversy to obtain a judicial resolution of that controversy); see also Siba v. Sigrah, [1990] FMKSC 4; 4 FSM Intrm. 329, 332 (Kos. S. Ct. Tr. 1990) (where a public official is charged with a statutory duty, the official has an interest in any proceeding which involves the exercise of that duty). Whether the Board's exercise of its statutory duty in terminating Mr. Sony's directorship was legal and enforceable is a justiciable controversy in which the Board has a direct interest. Edgar, 13 FSM Intrm. at 115; Siba, 4 FSM Intrm. at 332; In re Sproat, 2 FSM Intrm. at 4-5.

Defendants' third argument is that the Board failed to state a claim under Rule 12 (b)(6) because it doesn't have the authority to seek its own counsel. Because the Attorney General is representing an opposing party and therefore disqualified from representing the Board, the Board understandably sought counsel outside the Attorney General's office. In any case, the question of whether the Board had the authority to terminate Mr. Sony's directorship and whether that termination was valid creates a case or controversy that is ripe for judicial determination. See Edgar v. Truk Trading Co., [2005] FMSC 1; 13 FSM Intrm. 112 (Chk. 2005). Therefore, the Board has adequately stated a claim.

Defendants' fourth argumentthat the Board's counsel is incompetent to represent it because the representation was not authorized by the Attorney Generalrecapitulates the argument that the Board only has standing if the Attorney General consents to such standing. The court is not aware of any requirement in standing jurisprudence that the Attorney General must consent to a party's obtaining subject matter jurisdiction before standing can be obtained.

With respect to any issues regarding the Board's chosen counsel, that matter may be addressed through a motion to disqualify or other means, but it is not relevant to standing analysis.

In their supplemental motion to dismiss brought pursuant to Rule 12(b)(1) and 12(b) (6), defendants argue that new members have been confirmed to the Board since this action was initiated, and therefore, plaintiff is no longer the real party in interest and the case is moot.[4] The primary issue in this case is whether the Board had legal authority to terminate Mr. Sony's directorship at the time the termination was allegedly made. That issue remains a living controversy regardless of who the current Board members are, and the action will continue unabated in accordance with Civil Rule 25(d)(1). See Chk. Civ. R. 25(d)(1) (When a public officer is a party to an action in his official capacity and during its pendency . .&#1ceases to hold office, ice, the action does not abate and his successor is automatically substituted as party.").

IV. CONCLUSION

With respect to the request for dismissal for lack of s of standing pursuant to Civil Rule 12(b)(1), the issues raised regarding the Board's ability to obtain counsel and the competency of the Board's counsel do not have any bearing on standing. Therefore, the request for dismissal for lack of standing on those bases is denied. To the extent the standing issues raised in defendants' motions are bound together with a resolution of the merits of the case, the court reserves making a determinative ruling on the 12(b)(1) request for dismissal. If appropriate, defendants' motion to dismiss for lack of standing may be renewed pursuant to Civil Rule 12(h)(3).

The court denies defendants' request for dismissal pursuant to Civil Rule 12(b)(6) for failure to state a claim, but will consider matters outside the pleadings that were brought before the court on the motions to dismiss if and when it rules on any motion for summary judgment that is filed.

Defendants must file their answer within ten days of entry of this order.

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^[1]When courts in the FSM have not specifically construed the application of a procedural rule, the court may look for guidance to American jurisprudence interpreting the application of a similar or identical rule. Senda v. Mid-Pacific Constr. Co., [1994] FMSC 20; 6 FSM Intrm. 440, 444 (App. 1994); FSM v. Sam, [2006] FMSC 46; 14 FSM Intrm. 328, 332 n.1 (Chk. 2006).
^[2]Unlike a 12(b)(6) motion to dismiss, a 12 (b)(1) motion to dismiss may not be converted into a motion for summary judgment. See Crawford v. United States, [1986] USCA7 560; 796 F.2d 924 (7th Cir. 1986) (where defendant moves to dismiss complaint for failure to state claim under Rule 12 and attaches evidentiary materials, motion is treated as motion for summary judgment so that question for judge is whether defendant has shown there is no genuine issue as to any material fact; however, no similar conversion feature exists where motion is made under Rule 12 asserting lack of subject matter jurisdiction).
^[3]The only authority cited by defendants in support of this argument is Truk v. Robi, [1988] FMCSC 1; 3 FSM Intrm. 556 (Truk S. Ct. App. 1998), which held that the Attorney General may settle a lawsuit without the consent of the Governor. The case does not address whether the Attorney General may prohibit an instrumentality of the executive branch from bringing suit, or more specifically, from naming the Attorney General as a defendant in a lawsuit when the Attorney General seeks to enforce a legal position that conflicts with the discretion statutorily entrusted to the instrumentality. Indeed, if the Attorney General did have exclusive authority to determine when suits could be brought by instrumentalities of the executive branch, then all matters committed to the discretion of executive officials would, in effect, really be within the discretion of the Attorney General.
^[4]The court notes that the motion was filed on the day of the hearing. In order for the court to consider matters outside the pleadings under 12(b)(6) and thereby convert the motion to a motion for summary judgment, there must be sufficient notice to opposing counsel so that he has an opportunity to address any matters outside of the pleadings that are raised. See U.S. Federal Rules of Civil Procedure, Advisory Committee Notes, 1946 Amendment, Subdivision (b), discussed supra. In this case, the court considered the evidence submitted only in the context of the standing arguments brought pursuant to 12(b)(1) and each party brought in matters outside the pleadings.