Federated Shipping Co v Trial Division [1999] FMSC 18; 9 FSM Intrm. 270 (App. 1999) (3 December 1999)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite case as Federated Shipping Co. v Trial Division, [1999] FMSC 18; 9 FSM Intrm. 270 (App. 1999)

FEDERATED SHIPPING CO.,
Petitioner,

vs.

TRIAL DIVISION OF FSM SUPREME COURT,
Respondent,

POHNPEI PUBLIC LANDS AUTHORITY and
PONAPE TRANSFER AND STORAGE, INC.,
Real Parties in Interest.

__________________________________________

APPEAL CASE NO. P2-1988

CIVIL ACTION NO. 1986-085

BEFORE:

Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Mamoru Nakamura, Temporary Justice, FSM Supreme Court*
Hon. Judah C. Johnny, Temporary Justice, FSM Supreme Court**

*Chief Justice, Palau Supreme Court
**Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

OPINION

Argued: July 29, 1988
Decided: August 1, 1988
Opinion Entered: December 3, 1999

APPEARANCES:

For the Petitioner:
R. Barrie Michelsen, Esq.
Law Offices of Ramp & Michelsen
P.O. Box 1480
Kolonia, Pohnpei FM 96941

For the Real Party in Interest (PPLA):
Randy Boyer, Esq.
State Attorney
Office of the Pohnpei Attorney General
Kolonia, Pohnpei FM 96941

For the Real Party in Interest (PT&S) :
Daniel J. Berman, Esq.
P.O. Box 1491
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Mandamus and Prohibition
The standards governing the issuance of a writ of mandamus are well-recognized. The exact formulations may, however, differ somewhat. Federated Shipping Co. v. Trial Division, [1999] FMSC 18; 9 FSM Intrm. 270, 272 (App. 1999).

Mandamus and Prohibition
The determination of whether the power to grant a writ of mandamus should be exercised entails a court's full recognition of the extraordinary nature of the relief requested. Though the power is curative, it is strong medicine and its use must therefore be restricted to the most serious and critical ills. Federated Shipping Co. v. Trial Division, [1999] FMSC 18; 9 FSM Intrm. 270, 272-73 (App. 1999).

Appeal and Certiorari; Mandamus and Prohibition
Appellate review, in all but narrowly defined, exceptional circumstances, should be postponed until final judgment has been rendered by the trial court. Hence the party requesting a writ of prohibition or mandamus has the burden of showing a clear and indisputable right thereto, and must show exceptional circumstances necessitating review before final judgment below. Federated Shipping Co. v. Trial Division, [1999] FMSC 18; 9 FSM Intrm. 270, 273 (App. 1999).

Mandamus and Prohibition
The power to grant the writ is discretionary. Federated Shipping Co. v. Trial Division, [1999] FMSC 18; 9 FSM Intrm. 270, 273 (App. 1999).

* * * *

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

On February 12, 1988, Federated Shipping Co. ("FSCO") filed its Application for a Writ of Mandamus supported by a memorandum of law as an original action in this Court seeking to require the trial court, which had denied FSCO's Motion to Dismiss[1987] FMSC 19; , 3 FSM Intrm. 256 (Pon. 1987), to dismiss Civil Action No. 1986-085. FSCO then requested a prescribed statement pursuant to Rule 5(a) of the FSM Rules of Appellate Procedure. This request was denied by the trial court. The real parties in interest opposed the Application. After oral argument on July 29, 1988, the matter was submitted for decision. On August 1, 1988, the Order Denying Petition was entered. This opinion gives the reason for that action.

The Application raised two issues: 1) whether a writ of mandamus is appropriate, and 2) whether the trial court correctly held that an action brought by a local corporation against a state agency and a second corporation which has a foreign investment permit and a few foreign shareholders is a dispute between a foreign citizen and a citizen of Pohnpei for purposes of diversity jurisdiction.

We held that this was not a proper case for the extraordinary remedy afforded by the writ; that no rare or exceptional circumstances were present which would warrant substituting the writ for appeal. We took no position on the underlying issue.

FSCO raised these points in opposition to the trial court's holding:

1. That the diversity provision in the Constitution, article XI, section 6(b) is patterned word for word from the constitution of the United States, and thus should be adopted by the FSM as it was interpreted by the courts of the United States.

2. That in the United States the citizenship of the corporation is the factor considered in determining diversity (not the citizenship of shareholders), and that a party is a "non-citizen" is never a basis for diversity jurisdiction.

3. That Ponape Transfer and Storage Co. is not a citizen of another state.

4. That the trial court's interpretation can lead to forum shopping, because a corporation could add or buy out alien shareholders for its own purposes when contemplating litigation.

5. That the national court would now have jurisdiction over cases on entirely local interest, as this case is, and is deprived of jurisdiction when it is intended, such as an action by Ponape Transfer against its alien worker.

FSCO supported the writ's appropriateness as follows:

1. The problem presented is a continuing one: since the trial court's order denying the motion to dismiss cases have been filed in accord and illustrate the shortcomings set out in 4 and 5 above.

2. Since a land dispute is involved, the court should not lightly deprive the state court of jurisdiction just on the basis of diversity, since no other ground would be present.

3. The writ confines the court to its proper jurisdiction.

4. The record is adequate at this point to decide the matter, without what may turn out to be a trial of the case in a court without jurisdiction.

The standards governing the issuance of a writ are well-recognized. See, e.g., In re Raitoun[1984] FMSC 10; , 1 FSM Intrm. 561, 562 (App. 1984). The exact formulations may, however, differ somewhat. We repeat the formulation set out in United States v. Boe, 543 F.2d 151 (C.C.P.A. 1976) because FSCO cited it. "The determination of whether that power [to grant a writ of mandamus] should be exercised entails our full recognition of the extraordinary nature of the relief requested. Though the power is curative, it is strong medicine and its use must therefore be restricted to the most serious and critical ills." Id. at 157-58.

A basic tenet of our jurisprudence is that appellate review, in all but narrowly defined, exceptional circumstances, should be postponed until final judgment has been rendered by the trial court. Hence the party requesting a writ of prohibition or mandamus has the burden of showing a clear and indisputable right thereto, and must show exceptional circumstances necessitating review before final judgment below.

Id. at 158 (citations omitted). The power to grant the writ is discretionary. Id. at 159.

In Boe, like the case before us, the contention was that the writ was warranted because of lack of jurisdiction in the trial court. The Boe court repeatedly stressed the lack of jurisdiction by the trial court which was insisting upon hearing the case. Of the three statutory requirements conferring jurisdiction on the United States Custom Court two were absent. Thus the appellate court used terms such as "extra-statutory," id. at 158, "clearly beyond its charter," id. at 159, "clearly lacking," id., and "the present insistence upon exercise of jurisdiction so clearly beyond the unambiguous provisions of the statute which confers jurisdiction," id. at 160.

While we believed that FSCO's contentions were substantial, we did not find that it had met its burden of showing that it had "a clear and indisputable right" to the "extraordinary" relief it sought. The Application for a Writ of Mandamus was accordingly denied.