Porwek v American International Company Micronesia Inc [1998] FMSC 25; 8 FSM Intrm. 436 (Chk. 1998) (21 August 1998)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Porwek v American International Company Micronesia Inc.[1998] FMSC 25; , 8 FSM Intrm. 436 (Chk. 1998)

ASAKO PORWEK,
Plaintiff,

vs.

AMERICAN INTERNATIONAL
COMPANY MICRONESIA, INC.
and CHUUK STATE,
Defendants.

CIVIL ACTION NO. 1998-1017

ORDER

Richard H. Benson
Associate Justice

Decided: August 21, 1998

APPEARANCES:

For the Plaintiff/Respondent:
Midasy O. Aisek, Esq.
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Defendant/Petitioner (American Int'l Co.):
Andrew Clayton, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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HEADNOTES

Jurisdiction - Removal
Removal to the FSM Supreme Court is effected when, promptly after filing a verified removal petition together with copies of all state court process, pleadings and orders, the party seeking removal has given written notice thereof to all parties and has filed a copy of the petition with the clerk of the state court. Porwek v. American Int'l Co. Micronesia, [1998] FMSC 25; 8 FSM Intrm. 436, 438 (Chk. 1998).

Civil Procedure - Service
The rules require a certification of service upon all other parties. Porwek v. American Int'l Co. Micronesia, [1998] FMSC 25; 8 FSM Intrm. 436, 438 (Chk. 1998).

Jurisdiction - Removal
When removing a case to the FSM Supreme Court, a careful attorney ought to promptly notify the FSM Supreme Court when a copy of the removal petition has been filed with the state court clerk so as to avoid any confusion or delay. Porwek v. American Int'l Co. Micronesia, [1998] FMSC 25; 8 FSM Intrm. 436, 438 (Chk. 1998).

Civil Procedure - Motions; Jurisdiction - Removal
An opposition to a removal petition, regardless of how it is styled, is actually a motion to remand the case to state court on the ground that it was improvidently removed. Porwek v. American Int'l Co. Micronesia, [1998] FMSC 25; 8 FSM Intrm. 436, 438 (Chk. 1998).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

On July 21, 1998, American International Company Micronesia, Inc. filed in this court, pursuant to General Court Order 1992-2, a petition for removal of Chuuk State Supreme Court Civil Action No. 48-91, a case in which it is a named defendant. Attached to the petition was its attorney's verified petition and copies of all pleadings, filings, and orders in Chuuk State Supreme Court Civil Action No. 48-91. The Assistant Clerk of Court assigned it docket number 1998-1017. On July 24, 1998, Asako Porwek filed the Plaintiff's Response to Defendant's (AIC) Petition for Removal along with points and authorities. It moved the court "to deny the petition for removal" and asserted that this case was improperly removed.

American International has complied with the requirements of General Court Order 1992-2, section II(A) by filing a verified petition together with copies of all state court process, pleadings and orders. Removal to this court is effected when, promptly after filing the removal petition, the party seeking removal has given written notice thereof to all parties and has filed a copy of the petition with the clerk of the state court. FSM GCO 1992-2, § II(D). The rules requ certicertification of service upon all other parties. FSM Civ. R. 5(d). This was done. A certificate of service on the other parties was filed.

There is, however, a minor flaw in rovisions of the rules and and General Court Order 1992-2. There is no provision specifically requiring that the FSM Supreme Court be informed that a copy of the petition has been filed with the state court clerk and the date and time it was filed. A careful attorney ought, nonetheless, to promptly notify the FSM Supreme Court when this has been done so as to avoid any confusion or delay.

Assuming that American International has filed a copy with the state court clerk, then it has effected the removal of this case to this court. Therefore, the plaintiff's response to the petition, regardless of how it was styled, is actually a motion to remand this case to Chuuk State Supreme Court on the ground that it was improvidently removed. See FSM GCO 1992-2, § III(C).

se this this point may not be entirely clear to the parties, it is hereby ordered that the petitioner shall have until September 7, 1998 to file and serve its opposition to the plaintiff's motion to remand. The other defendant, the State of Chuuk, may, if it is so advised, also file and serve its views on the matter by September 7, 1998. The plaintiff may then file and serve any response by September 14, 1998. After that date, unless an enlargement of time has been moved for and granted, I will consider the matter submitted for my decision.