Ruben v Chuuk [2018] FMCSC 8; 22 FSM R. 130m (Chk. S. Ct. Tr. 2018) (21 December 2018)

CHUUK STATE SUPREME COURT TRIAL DIVISION
CSSC-CIVIL ACTION NO.171-2018

MORIA RUBEN,
Plaintiff,

vs.

CHUUK STATE,
Defendant.
___________________________________

ORDER DENYING TRO

Kerio Walliby
Associate Justice

Decided: December 21, 2018

APPEARANCE:

For the Plaintiff: Roy T. Chikamoto, Esq.
P.O. Box 12199
Honolulu, Hawaii 96828-1199

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HEADNOTES

Civil Procedure - Injunctions
In making the determination whether or not to grant injunctive or other equitable relief, a court of equity must use a balance-of-hardship test. This decision should be based upon a flexible interplay among all factors to be considered. Those factors are: the likelihood of irreparable harm to the plaintiff without an injunction; likelihood of harm to the defendant with an injunction; plaintiff's likelihood of success on the merits; and the public interest. Ruben v. Chuuk, 22 FSM R. 130m, 130o (Chk. S. Ct. Tr. 2018).

Civil Procedure - Injunctions
The framing of an injunction appropriate to the facts of a case is a matter peculiarly for the trial judge’s discretion. Ruben v. Chuuk, 22 FSM R. 130m, 130o (Chk. S. Ct. Tr. 2018).

Civil Procedure - Injunctions - Ex Parte
Two preliminary factors must be met when seeking an ex-parte injunction: 1) it must clearly appear from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and 2) the applicant's attorney must certify to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting his claim that notice should not be required. Ruben v. Chuuk, 22 FSM R. 130m, 130p (Chk. S. Ct. Tr. 2018).

Civil Procedure - Injunctions - Ex Parte; Civil Procedure - Injunctions - Irreparable Harm
When the complaint and motion allege that an irreparable injury has already occurred, as opposed to one which is going to occur immediately, the plaintiff has failed to meet the first of the preliminary factors required for granting an ex-parte temporary restraining order so as to override the law’s general requirement that the adverse party ought to be provided a chance to be heard in opposition. Ruben v. Chuuk, 22 FSM R. 130m, 130p (Chk. S. Ct. Tr. 2018).

Civil Procedure - Injunctions - Ex Parte; Civil Procedure - Injunctions - Irreparable Harm
When irreparable harm allegations are all of past injuries, which perhaps may be irreparable, these allegations fail to show an irreparable injury, loss, or damage as required by Rule 65(b) because the plaintiff has not demonstrated that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition. Ruben v. Chuuk, 22 FSM R. 130m, 130p (Chk. S. Ct. Tr. 2018).

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COURT’S OPINION

KERIO WALLIBY, Associate Justice:

I. INTRODUCTION AND PROCEDURAL HISTORY

Plaintiff Moria Ruben filed this case on December 18, 2018. Plaintiff alleged that the Chuuk State Government is trespassing on her property rights over lot 040-A-38 as it is building a police station on that property. Ruben filed a motion for a preliminary injunction against Chuuk State.

Within her motion, Plaintiff alleged the following:

1. 1. She notified Defendant that she intended to file a Complaint and TRO, so further notice would be fruitless.
   
2. 2. The State has already constructed a two floor structure on the property and so had already altered the landscape of lot 040-A-38.
   
3. 3. The construction severely frustrated Plaintiff’s plans for development of that area.
   
4. 4. Defendant’s harm has been brought upon itself because it had insisted on the construction plans despite notice of ownership claims from Plaintiff on September 20, 2018.
   
5. 5. An attached Determination of Ownership for the Wito clan (predecessor of interest to Plaintiff) over lot 040-A-38.
   

II. ISSUE

1. 1. Whether Plaintiff has demonstrated that that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition.
   

III. STANDARD AND LAW

A. Standard for Granting a TRO and other injunctive relief

Generally, in making the determination whether or not to grant injunctive or other equitable relief, a court of equity must use a balance-of-hardship test. Onopwi v. Aizawa, [1994] FMCSC 9; 6 FSM Intrm. 537 (Chk. S. Ct. App. 1994). This decision "should be based upon a ’flexible interplay' among all factors to be considered. Those factors are: the likelihood of irreparable harm to the plaintiff without an injunction; likelihood of harm to the defendant with an injunction; plaintiff's likelihood of success on the merits; and the public interest. Id. The framing of an injunction appropriate to the facts of a case is a matter peculiarly for the discretion of the trial judge.

B. Rule 65 of the Chuuk State Rules of Civil Procedure

Rule 65(b) and (c) sets the standard for issuing a TRO.

A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting his claim that notice should not be required. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 14 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. . ."

(c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum, if any, as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the State of Chuuk or of any officer or agency thereof.

IV. ANALYSIS

A temporary restraining order is in essence a motion for injunctive relief. Prior to even considering the factors as found within Onopwi v. Aizawa for the issuance of an injunction, Rule 65(b) of the Chuuk State Rules of Civil Procedure requires that two preliminary factors are met when such injunction is requested ex-parte. Namely, that:

1. 1. It clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and
   
2. 2. The applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting his claim that notice should not be required.
   

Plaintiff’s Complaint and Motion for TRO fails to meet the first of the preliminary factors required for the granting of a TRO ex-parte. The Complaint and Motion allege that an irreparable injury has already occurred, as opposed to one which is going to occur so immediately as to override the law’s general requirement that the adverse party ought to be provided a chance to be heard in opposition.

Plaintiff has alleged that Defendant has already permanently altered the landscape by the construction a two floor building on the lot. Likewise, Plaintiff expressed in past tense that Defendant’s actions have "severely frustrated Plaintiffs development for the area." Plaintiff does not allege the construction of additional buildings, but alleges that the police station building will be further completed. However, the building is already there. Plaintiff admits that the landscape has already been altered by the structure already in place and that Plaintiff’s plans for development have already been severely frustrated. These are all past injuries, which perhaps may be irreparable, but these allegations fail to show and irreparable injury, loss, or damage as required by Rule 65(b). For that reason, the Court is foreclosed from issuing an ex-parte TRO based on this motion.

V. CONCLUSION

This Court finds that Plaintiff has not demonstrated that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition. Plaintiff’s Motion for an ex-parte TRO is DENIED.

However, Plaintiff has expressed a basis for the Court to schedule a hearing for a preliminary injunction, where the adverse party will also be present. For that reason, this Court now schedules a preliminary injunction hearing for January 25, 2019 at 10 a.m.

The Plaintiff has until January 4, 2019 to submit any further brief in support of her motion for an injunction. The Defendant has until January 16, 2019 to submit a motion in opposition.

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