Mendiola v Berman (I) [1994] FMSC 15; 6 FSM Intrm. 427 (Pon. 1994) (10 June 1994)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 1994-058
PCA No. 81-94

WENDOLIN MENDIOLA, ENERIKO EKIEK,
ADELINO EDMUND, FRANSISCO JOSEPH,
VALERIO PELEP and VINCENT ROSARIO,
Plaintiffs,

vs.

MARY BERMAN, ISO NAHNKEN OF NETT
and JOHN REYES,
Defendants.
__________________________________________

MEMORANDUM OF DECISION

Andon L. Amaraich
Associate Justice

Decided: June 10, 1994

APPEARANCES:

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

For the Defendants: Mary Berman, Esq.
P.O. Box 163
Kolonia, Pohnpei FM 96941

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HEADNOTES

Jurisdiction - Removal
Where a party petitions for removal after denial of its motion to dismiss brought in state court and the motion to dismiss was filed in lieu of answering the compliant and was not argued by the parties, such action will be considered a defense to suit on procedural grounds rather than a consent to state court adjudication of the merits such that waiver of the right to remove may not be implied. Mendiola v. Berman (I), [1994] FMSC 15; 6 FSM Intrm. 427, 428 (Pon. 1994).

Federalism - Abstention and Certification
Where a complaint arises from actions concerning the internal operations of municipal government, and the claims sound in tort, abstention in favor of state court adjudication is appropriate. Mendiola v. Berman (I), [1994] FMSC 15; 6 FSM Intrm. 427, 429 (Pon. 1994).

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COURT'S OPINION

ANDON L. AMARAICH, Associate Justice:

This memorandum issues to explain the Order of Abstention and Remand entered today in this matter.

The defendants in this action filed a petition for removal pursuant to FSM General Court Order 1992-2 on May 18, 1994. Prior to filing for removal and while the action was still before Pohnpei Supreme Court, defendants had filed a motion to dismiss for failure to state a claim upon which relief may be granted. The Pohnpei Supreme Court denied defendants' motion on May 16, 1994.

The plaintiffs have filed a motion seeking remand of the case to state court on grounds that defendants waived their right to remove by consenting to personal jurisdiction of the state court. The Court does not find that the defendants waived their right to remove this action from Pohnpei Supreme Court prior to filing the petition for removal. However, for the reasons stated below the Court abstains from hearing this case.

The plaintiffs point to Part III(C) of General Court Order 1992-2 and the fact that defendants only petitioned for removal after their motion to dismiss was denied as evidence of waiver of a right to remove. Part III(C) is designed to allow this Court to return cases to state court which may have been removed correctly according to the procedures outlined in General Court Order 1992-2, but which should not have been removed because the removing party had already affirmatively invoked or acceded to the jurisdiction of the state court and thereby exhibited its intent to remain there. U Corp. v. Salik, [1988] FMSC 20; 3 FSM Intrm. 389, 394 (Pon. 1988) (affirmative steps such as filing a motion aimed at obtaining a substantive state court ruling should be regarded as signalling acquiescence to state court jurisdiction).

This Court has not ruled previously whether filing a motion to dismiss in state court constitutes a waiver of the right to remove. U.S. courts have apparently considered a motion to dismiss more as a defensive response than an affirmative action in state court, and therefore not indicative of an intent to waive right of removal. Polizzi v. Cowles Magazines, Inc., [1953] USSC 69; 345 U.S. 663, 664[1953] USSC 69; , 73 S. Ct. 900, 901[1953] USSC 69; , 97 L. Ed. 1331, 1334 (1953); Bedell v. H.R.C. Ltd., 522 F. Supp. 732, 738 (E.D. Ky. 1981). However in the Polizzi case at least, the defendant petitioned for removal before its motion to dismiss had been decided by the state court. It is a close question whether waiting until after an adverse ruling on such a motion to then seek removal demonstrates "conduct clearly and unequivocally inconsistent with removal . . .rpret an intenintent to wato waive the right to remove." Haun v. Retail Credit Co., 420 F. Supp. 859, 863 (W.D. Pa. 1976)uablyting until after the motion is denied gives the appearance of "attempting to appe appeal thal the adverse determination of the state court by way of a removal proceeding," which has been declared impermissible. In re 73rd Precinct Station House, 329 F. Supp. 1175, 1178 (E.D.N.Y. 1971). However, in this instance the defendants' motion sought dismissal of the complaint under the Pohnpei Rules of Civil Procedure as an alternative to answering the complaint. The motion was not argued orally by the parties. As such this Court deems the motion to have been a defense to suit on procedural grounds rather than a consent to state court jurisdiction of the merits of the case.

We address the concern raised by plaintiffs that allowing defendants to remove this case would set a precedent for parties to consent to state court jurisdiction until an adverse ruling issues and then remove the case to this Court at an advanced stage of litigation. We note that in this instance the time limit for filing a petition to remove was met. Had the time limit of 60 days already expired and the motion to dismiss in state court was still pending, the defendants could not have waited for a decision on the motion and then, if adverse, sought removal. Likewise if defendants had filed a motion for summary judgment, for example, within the 60 days and had that motion been denied also within the 60 day time limit, defendants would be considered to have waived their right to remove the case on the basis of having sought affirmative adjudication on the merits in the state court forum.

Although the Court does not remand this case on the basis of Part III(C) of General Court Order 1992-2, the Court will abstain from further proceedings in this matter pursuant to its inherent authority to do so. Gimnang v. Yap, 5 FSM Intrm. 13, 19 (App. 1991); Ponape Transfer & Storage, Inc. v. Federated Shipping Co., 4 FSM Intrm. 37, 42-43 (Pon. 1989). The grounds of abstention are as follows:

(1) The claims in the underlying complaint in PCA No. 81-94 arise from matters involving the internal workings of the Nett District government. It is appropriate for a more local judicial forum to consider issues raised regarding operations of local government.

(2) The claims in the complaint sound in tort and do not require special interpretation of the FSM Constitution or any other national laws. This Court recognizes and supports the efforts of the state courts to develop state law concerning common law tort questions. See Edwards v. Pohnpei, [1988] FMSC 6; 3 FSM Intrm. 350, 359 (Pon. 1988).

(3) All of the parties on both sides of the litigation are from Pohnpei, with the exception of one defendant. There would thus appear to be no issue of possible bias by the local forum.

(4) There is no reason to believe that state court proceedings in this matter would be delayed to any significantly greater degree than in this Court.

For the above reasons this Court will take no further action in this matter. The case is remanded to Pohnpei Supreme Court.

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