In re Kuang Hsing 182 [1996] FMSC 58; 7 FSM Intrm. 465 (Yap. 1996) (9 April 1996)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as In re Kuang Hsing 182[1996] FMSC 58; , 7 FSM Intrm. 465 (Yap. 1996)

In Re: KUANG HSING 182 and AN UNKNOWN QUANTITY OF FISH STATE OF YAP,
Plaintiff,

vs.

TING HONG OCEANIC ENTERPRISES CO., LTD. et al.,
Defendants.

CIVIL ACTION NO. 1995-3034

ORDER AND MEMORANDUM OF DECISION

Martin Yinug
Associate Justice

Hearing: March 29, 1996
Decided: April 9, 1996

APPEARANCES:

For the Plaintiff:
Kathleen Burch, Esq.
Office of the Yap Attorney General
P.O. Box 435
Colonia, Yap FM 96943

For the Defendant(Ting Hong):
John Hollinrake, Esq.
Law Offices of R. Barrie Michelsen
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendant (the Kuang Hsing 182):
J. Bradley Klemm, Esq.
Klemm, Blair, Sterling & Johnson
1008 Pacific News Building
238 Archbishop F.C. Flores St.
Agaña, Guam 96910

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HEADNOTES

Civil Procedure - Summary Judgment and Judgment on the Pleadings
For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the opposing party's pleadings are taken as true and all allegations of the moving party which have been denied are taken as false. Judgment is granted only if the moving party is clearly entitled to judgment on the facts as so admitted. In re Kuang Hsing 182[1996] FMSC 58; , 7 FSM Intrm. 465, 467 (Yap 1996).

Civil Procedure - Summary Judgment and Judgment on the Pleadings
Judgment on the pleadings cannot be granted when nonmovant's factual allegations are taken as true or on movant's affirmative defenses because affirmative defenses are deemed denied by operation of Civil Rule 8(d). In re Kuang Hsing 182[1996] FMSC 58; , 7 FSM Intrm. 465, 468 (Yap 1996).

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COURT'S OPINION

MARTIN YINUG, Associate Justice:

By this Order, the Motion of defendant, Ting Hong Oceanic Enterprises Co., Ltd., ("Ting Hong"), for Judgment on the Pleadings, is denied. This Memorandum of Decision explains the reasoning in denying the Motion.

Procedural Background

In these consolidated cases, the Yap State alleges that various defendants are liable for illegal fishing in Yap State waters in violation of two subsections of the Yap State Code. In case number 1995-3034, Yap State is proceeding in rem against the defendant vessel, the Kuang Hsing 182 ("the 182"). In the present case, number 1995-3035, Yap State seeks civil penalties, jointly and severally, from Ting Hong and other defendants.

Ting Hong moved for judgment on the pleadings, arguing that Yap State's theory of liability against it is fatally flawed. Yap State opposed the motion, asserting seven reasons to deny the motion, three on the motion for judgment on the pleadings, the rest to apply if the Court were to consider Ting Hong's motion as one for summary judgment.

Both parties to this motion requested that the Court consider it only as a motion for judgment on the pleadings. At the hearing, counsel agreed that if the Court were to consider the motion as one for summary judgment, that the motion should be taken off-calendar, as both Yap State and Ting Hong need to complete discovery. The Court therefore considers only the issues pertinent to a motion for judgment on the pleadings.

Legal Analysis

A motion for judgment on the pleadings is governed by Rule 12(c) of the FSM Rules of Civil Procedure. The language of that section does not provide a standard for granting such a motion. The parties have cited no FSM authorities that interpret Rule 12(c), and the Court has located none on its own. Thus, it is appropriate to look to authorities interpreting the Federal Rules of Civil Procedure in use in courts in the United States, from which our rules derive. FSM v. Ponape Builder's Constr. Inc., 2 FSM Intrm. 48, 52 (Pon. 1985).

For purposes of the motion [for judgment on the pleadings], all well-pleaded material allegations of the opposing party's pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false. . .&. Judgment on the pleadineadings may be granted only if, on the facts as so admitted, the moving party is clearly entitled to judgment.

2A James W. Moore et al., Moore's Federal Pre 12.15, at 234t 2343-44 d. 1ed. 1981) (footnotes omitted).

Yap State seeks to hold Ting Hong liable for the violations by the 182, under principles of agency law, and by Ting Hong's contractual assumption of liability in the Foreign Fishing Agreement ("FFA") it entered with the Micronesian Maritime Authority. Ting Hong asserts that Yap State's theory of liability is flawed on four grounds: (1) there is no agent liability; (2) there is no privity of contract between Yap State and Ting Hong; (3) there is no liability based on the statute governing vicarious criminal liability; and (4) there is no liability based on the "general theory of agency."

The Court rejects Ting Hong's reason number three immediately. This is a civil case, and the statute governing vicarious criminal liability has no bearing. As to Ting Hong's other assertions, the Court must take all well-pleaded allegations in Yap State's amended complaint as true. Doing so guts Ting Hong's entire argument.

Ting Hong argues that it cannot be liable either on principles of agency law or on contract. But the Court on this motion must take as true that Ting Hong is the agent for and manages the 182, alleged to have illegally fished Yap State waters. See Amended Complaint para. 2. This allegation, pleaded in the alternate, bars Ting Hong's argument that it cannot be held as agent or principal. The Court takes as true that at times Ting Hong acted as the 182's agent, and that at other times Ting Hong acted as the 182's manager. Sorting out those times Ting Hong acted in which capacity is beyond the pleadings and what the Court may judicially notice.[1] In addition, the Court takes as true paragraph A18 of Exhibit A to the amended complaint, Ting Hong's List of Answers to the FFA Questionnaire. This paragraph supports the allegation that Ting Hong acknowledged its responsibility for the acts of the vessels it manages.

The Court must also take as true the allegations in paragraph 3 of the amended complaint. For the purpose of this motion, the Court takes as true that Ting Hong assumed contractual liability for actions of those fishing vessels, including the 182. See also Amended Complaint, Ex. A paras. A13, A18, A19. Ting Hong's affirmative defenses denying contractual liability are deemed false for purposes of this motion. Although Yap State did not deny these affirmative defenses, they are deemed denied by operation of Rule 8(d) of the FSM Rules of Civil Procedure. Moore et al., supra, at 2345. Taking the well-pleaded allegations of the amended complaint as true, and Ting Hong's affirmative defenses as false, it is clear that Ting Hong did assume contractual liability for violations committed by the vessels it manages and acts on behalf of, including the No. 182.

Conclusion

Applying the standard for a 12(c) motion for judgment on the pleadings, Ting Hong is not clearly entitled to judgment. Ting Hong's motion is therefore denied.

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^[1] Ting Hong requested judicial notice of the FFA, but did not submit the document itself. Cf. FSM Evid. R. 201(d). Yap State argued against judicial notice but submitted a copy of the FFA with its opposition. The Court exercises its discretion, and does not take judicial notice, based in significant part on the parties' request to treat the motion solely as one for judgment on the pleadings.