Estate of Mori v Chuuk [2001] FMSC 46; 10 FSM Intrm. 123 (Chk. 2001) (30 March 2001)

SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA

Cite as Estate of Johnny Mori v. Chuuk[2001] FMSC 46; ,
10 FSM Intrm. 123 (Chk. 2001)

[2001] FMSC 46; [10 FSM Intrm. 123]

ESTATE OF JOHNNY MORI,
through its administratrix,
Moria Ruben, and Moria Ruben
as personal representative of the heirs and beneficiaries of Elena Mori,
Plaintiff,

vs.

THE STATE OF CHUUK, FRANCIS HALLERS,
KAPIER KAMERINO, T. TAKKI, Y. KANSECO, J. SOICHY,
EDWIN RAED, IOSICHY MANAS, FRANCIS HARTMAN,
ERICK EDGAR, KASTINA KAMINO AND ERADIO WILLIAM,
Defendants

CIVIL ACTION NO. 1998-1000

ORDER ON FEES AND COSTS

Richard H. Benson
Associate Justice

Decided: March 30, 2001

APPEARANCES:

For the Plaintiff:
Stephen V. Finnen, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendant (Chuuk):
Joses Gallen, Esq.
Chief of Litigation
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

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HEADNOTES

Attorney, Trial Counselor and Client - Fees; Civil Rights
The prevailing party in civil rights actions under 11 F.S.M.C. 701 is entitled to reasonable attorney fees and costs of suit as compensatory damages. Estate of Mori v. Chuuk, [2001] FMSC 46; 10 FSM Intrm. 123, 124 (Chk. 2001).

Civil Rights
Because the FSM statute is based upon the United States model, the FSM Supreme Court should consider United States court decisions under 42 U.S.C. § 1983 and § 19r asoistance in determinirmining the intended meaning of, and governmental liability under 11 F.S.M.C. 701(3). Estate of
>[10 FSM Intrm.124]

Mori v. Chuuk, 10 FSM Intrm. 12m. 123, 123, 124 (Chk. 2001).

Attorney, Trial Counselor and Client - Fees; Civil Rights
So long as a party has prevailed in a civil rights suit as a whole, that party is entitled to fees for all time reasonably spent on the matter, including the time spent on pendent state law claims that would not otherwise be statutorily entitled to a fee award, when the pendent claims arise out of a common nucleus of operative fact. Estate of Mori v. Chuuk, [2001] FMSC 46; 10 FSM Intrm. 123, 124 (Chk. 2001).

Costs
Costs are customarily awarded the prevailing party. However, costs for service on those defendants who were prevailing parties are not allowed to the plaintiff. Nor are costs for service in and filing fee for the case originally filed in state court allowed as costs are to be awarded only for the costs in this case to the prevailing party in this case. Estate of Mori v. Chuuk, [2001] FMSC 46; 10 FSM Intrm. 123, 125 (Chk. 2001).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This comes before the court on the plaintiff's application for attorneys' fees and costs. The plaintiff was the prevailing party in this civil rights action against defendants State of Chuuk, Eradio William, and Kapier Kamerino, and in the pendent state law claims against defendants State of Chuuk, Eradio William, Kapier Kamerino, and Kastina Kamino. Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 14-15 (Chk. 2001). The prevailing party in civil rights actions under 11 F.S.M.C. 701 is entitled to reasonable attorney fees and costs of suit as compensatory damages. Davis v. Kutta, [1997] FMSC 38; 8 FSM Intrm. 218, 220 (Chk. 1997); Davis v. Kutta, [1996] FMSC 25; 7 FSM Intrm. 536, 549 (Chk. 1996) (relying on 11 F.S.M.C. 701(3)).

Because the FSM statute is based upon the United States model, the FSM Supreme Court should consider United States court decisions under 42 U.S.C. § 1983 and § 1988 for assistan determinirmining the intended meaning of, and governmental liability under 11 F.S.M.C. 701(3). Estate of Mori, 10 FSM Intrm. at 13 (Chk. [1991] FMSC 25; 2001); , 5 FSM Intrm. 179, 204 (Pon. 1991) (followollowing Tolenoa v. Kosrae, [1987] FMSC 15; 3 FSM Intrm. 167, 170 (App. 1987)). So long as a party has prevailed in a civil rights suit as a whole, that party is entitled to fees for all time reasonably spent on the matter, including the time spent on pendent state law claims that would not otherwise be statutorily entitled to a fee award, when the pendent claims arise out of a common nucleus of operative fact. Seaway Drive-in, Inc. v. Township of Clay, 791 F.2d 447, 450-52, 455 (6th Cir. 1986) (fees award to prevailing plaintiff under 42 U.S.C. § 1988 allowed even though its constitutional civil rights claim not reached when decision on pendent state law claims granted full relief); NAACP v. Detroiice Officers Ass'n, 620 F. Supp. 1173, 1178-79 (E.D. Mich. 1985) (same); Allen v. Hov. Housing Auth., 563 F. Supp. 108, 110 (E.D. Pa. 1983). See also Davis v. Kutta, [1997] FMSC 38; 8 FSM Intrm. 218 (Chk. 1997); Davis v. Kutta, [1996] FMSC 25; 7 FSM Intrm. 536 (Chk. 1996) (although not discussed, plaintiff awarded attorneys' fees for both successful civil rights claim and pendent state law tort). This seems appropriate as even an award of nominal damages will support an attorney fee award. See, e.g., Milwe v. Cavuto, [1981] USCA2 578; 653 F.2d 80 (2d Cir. 1981) (fee award appropriate although plaintiff received only $1 on civil rights claim and substantial damages on pendent state law claims).

It is therefore appropriate to award attorney fees in this case to the plaintiff as the prevailing party on the reasonable fees for the plaintiff's attorneys' work on all of the plaintiff's claims.

[10 FSM Intrm.125]

Reasonable attorneys' fees in the amount of $28,918.80 are hereby awarded.

Costs are customarily awarded the prevailing party. Damarlane v. United States, [1997] FMSC 33; 8 FSM Intrm. 45, 54 (App. 1997). However, costs for service on those defendants who were prevailing parties, Francis Hallers, T. Takki, Y. Kanseco, J. Soichy, Edwin Raed, Iosichy Manas, Francis Hartman, and Erick Edgar, are therefore not allowed to the plaintiff. Nor are costs for service in and filing fee for the case originally filed in state court allowed as costs are to be awarded only for the costs in this case to the prevailing party in this case. Costs are therefore awarded against the defendants State of Chuuk, Eradio William, Kapier Kamerino, and Kastina Kamino, jointly and severally costs in the amount of $7,585.81 and further costs of $15 individually against the State of Chuuk, costs of $15 individually against Eradio William, costs of $15 individually against Kapier Kamerino, and costs of $15 individually against Kastina Kamino.

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