Gilmete v Adams [2002] FMSC 26; 11 FSM Intrm. 105 (Pon. 2002) (23 August 2002)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Gilmete v. Adams[2002] FMSC 26; , 11 FSM Intrm. 105 (Pon. 2002)

[2002] FMSC 26; [11 FSM Intrm. 105]

IOANIS GILMETE,
Plaintiff,

vs.

YVETTE ETSCHEIT ADAMS and
RENEE ETSCHEIT VARNER,
Defendants.

CIVIL ACTION NO. 2002-020

ORDER GRANTING MOTION TO REMAND
TO POHNPEI SUPREME COURT

Andon L. Amaraich
Chief Justice

Decided: August 23, 2002

APPEARANCES

For the Plaintiff:
Joseph Phillip, Esq
P.O. Box 464
Kolonia, Pohnpei FM 96941

For the Defendants:
Fredrick L. Ramp, Esq.
Law Office of Fredrick L. Ramp
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTES

Jurisdiction - Removal
A plaintiff’s opposition to a petition to remove, regardless of how it was styled, is actually a motion to remand the case to the state court on the ground that it was improvidently removed. Gilmete v. Adams, [2002] FMSC 26; 11 FSM Intrm. 105, 107 & n.1 (Pon. 2002).

Jurisdiction
The only time the FSM Supreme Court does not have original and exclusive jurisdiction over the

[11 FSM Intrm. 106]

types of cases enumerated in Section 6(a) is in those specific cases where the national government is a party and an interest in land is at issue. Gilmete v. Adams, [2002] FMSC 26; 11 FSM Intrm. 105, 108 (Pon. 2002).

Jurisdiction - Diversity
The FSM Supreme Court has concurrent jurisdiction along with the state courts to hear cases where diversity of citizenship of the parties exists. Gilmete v. Adams, [2002] FMSC 26; 11 FSM Intrm. 105, 108 (Pon. 2002).

Jurisdiction - Diversity
It is well settled that the FSM Supreme Court may hear cases based on diversity even when land is at issue. Gilmete v. Adams, [2002] FMSC 26; 11 FSM Intrm. 105, 108 (Pon. 2002).

Jurisdiction - Removal
Removal of state court actions to the FSM Supreme Court is effected upon compliance with the procedures in FSM Supreme Court GCO 1992-2. The state court takes no further action following removal unless and until a case is remanded. Gilmete v. Adams, [2002] FMSC 26; 11 FSM Intrm. 105, 109 (Pon. 2002).

Jurisdiction - Removal
In order to remove a case from a state court to the FSM Supreme Court, the moving party must file a verified petition with the FSM Supreme Court within sixty days from the date that the party receives, through service or otherwise, a copy of an initial or amended pleading, motion, order or other paper from which it may first be ascertained that the case is removable. The petition for removal must contain a short and plain statement of the facts which entitle the party to remove along with a copy of all process, pleadings and orders upon or by the moving party in such action. Gilmete v. Adams, [2002] FMSC 26; 11 FSM Intrm. 105, 109 (Pon. 2002).

Jurisdiction - Removal
When diverse citizenship does not appear to be present on the record in a removed case and when, although defendants have argued that a diverse company is a necessary party, they have not joined it, the case will be remanded to the state court. Defendants may file another petition for removal when diversity of citizenship exists between the parties of record. Gilmete v. Adams, [2002] FMSC 26; 11 FSM Intrm. 105, 110 (Pon. 2002).

Jurisdiction - Diversity
The FSM Supreme Court cannot imply or create diversity of citizenship in a case. If it does not have subject matter jurisdiction in a case, it does not have the authority or jurisdiction to issue an order joining another party. Gilmete v. Adams, [2002] FMSC 26; 11 FSM Intrm. 105, 110 (Pon. 2002).

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COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

On May 6, 2002, defendants filed a petition to remove this matter from the Pohnpei Supreme Court. On May 13, 2002, plaintiff filed an opposition to petition to remove. As plaintiff’s opposition should properly be considered a motion to remand the matter to the Pohnpei Supreme Court, see infra, the court will refer to the "opposition" as plaintiff’s motion to remand. For the reasons state herein, the court will grant plaintiff’s motion to remand.

[11 FSM Intrm. 107]

Background

On April 26, 2002, plaintiff Ioanis Gilmete filed a complaint in the Pohnpei Supreme Court for quiet title against defendants Yvette Etscheit Adams and Renee Etscheit Varner, commencing action PCA No. 92-2002. Plaintiff claims generally that he is entitled to quiet title to the land he occupies, known as "Lui", and designated as Parcel No. 046-A-04, as he has continuously used and developed the land for the 20 year period time required to gain possession and title to the land through adverse possession.

On May 3, 2002, defendants filed an answer and counterclaim. Defendants generally deny plaintiff’s claim of ownership of the land occupied by plaintiff. In their counterclaim, defendants argue that they own the land which plaintiff occupies, and that one Carlos Etscheit Soap Company, Inc. (CESCI) is a holder of a valid foreign investment permit and is the lessee of the premises which are the subject matter of this action and a necessary party to this action. Defendants allege that plaintiff Gilmete is a continuing trespasser on a portion of Tract No. 046-A-011, land owned by defendants and leased to CESCI. Defendants attach a Certificate of Title to establish their ownership of Tract No. 046-A-011.

1. Petition to Remove

On May 6, 2002, defendants filed a petition to remove PCA 92-2002 to the FSM Supreme Court. Defendants state that FSM Civil Action 2000-002 (then presently pending before the trial division of the FSM Supreme Court having been filed there in January 2000) is an action to determine the right to possession and ownership of a portion of Tract No. 046-A-011 (formerly 046-A-04) occupied by Ioanes Gilmete (who is the plaintiff in the Pohnpei Supreme Court action). PSA No. 92-2002 is an action by Ioanes Gilmete to determine the right to possession and ownership of precisely the same land involved in FSM Civil Action No. 2000-002.

Defendants further state that plaintiff Gilmete admitted in his original answer to the complaint in FSM Civil Action No. 2000-002 that the FSM Supreme Court has jurisdiction over FSM Civil Action No. 2000-002. Defendants argue that by filing the Pohnpei Supreme Court action and dropping Carlos Etscheit Soap Company, Inc. as a party, Ioanes Gilmete is trying to strip this court of jurisdiction over the parties and subject matter of FSM Civil Action No. 2000-002 through trickery and deceit by eliminating the foreign investor party and lessee of the property in dispute as a party. Defendants contend this is bad faith pleading, wastes the time of two different court systems and poses the possible risk of contradictory rulings by the two court systems bringing them into conflict with each other.

Defendants argue that since the FSM Supreme Court trial division has jurisdiction over the persons and subject matter of this litigation in FSM Civil Action No. 2000-002, defendants (who are plaintiffs in FSM Civil Action No. 2000-002) are entitled to removal of this Pohnpei Supreme Court action to the trial division of the FSM Supreme Court.

2. Plaintiff’s Opposition to Petition to Remove

On May 13, 2002, plaintiff (Ioanis Gilmete) filed an opposition to remove PCA No. 92-2002. This will be treated as a motion to remand,^[1] and will be referred to from this point on as plaintiff

[11 FSM Intrm. 108]

Gilmete’s motion to remand.

Plaintiff (Gilmete) states that FSM Civil Action No. 2000-002 is an action for trespass against the Gilmetes, and the FSM Supreme Court has jurisdiction over that matter by virtue of diversity of citizenship of the parties in that plaintiff Carlos Etscheit Soap Company (CESCI) is a partly foreign-owned corporate entity and the lessee of the tract of land 046-A-04. Gilmete argues that there is no justifiable basis for CESCI to be a party in this case (PCA No. 92-2002).

Gilmete further argues that the Article XI, Section 6(a) of the FSM Constitution provides that the trial division of the FSM Supreme Court has original and exclusive jurisdiction in cases affecting officials of foreign governments, disputes between states . . . excepte an esterest in lain land is in issue. Gilmete argues this prevents the FSM Supreme Court from having jurisdiction over this case. However, Gilmete fails to quhe enlanguage of Article XI, Section 6(a): "The trial rial divisdivision of the FSM Supreme Court has original and exclusive jurisdiction in cases affecting officials of foreign governments, disputes between states, admiralty or maritime cases, and in cases in which the national government is a party except where an interest in land is at issue."

The court believes that the only time the FSM Supreme Court does not have original and exclusive jurisdiction over the types of cases enumerated in Section 6(a) is under those specific cases where the national government is a party and an interest in land is at issue. The FSM Supreme Court never had exclusive and original jurisdiction of FSM Civil Action No. 2000-002; its jurisdiction was based on diversity of citizenship of the parties, see FSM Const. art. XI, § 6(b). This give FSM Supremepreme Court concurrent jurisdiction along with the state courts to hear cases where diversity of citizenship of the parties exists. Section provides no barrier to the FSM Supreme Court hearing this mhis matter.

It is well settled that the FSM Supreme Court may hear cases based on diversity even when land is at issue. See FSM Dev. Bank v. Ifraim, [2001] FMSC 45; 10 FSM Intrm. 1, 5 (Chk. 2001); Etscheit v. Adams, [1991] FMSC 30; 5 FSM Intrm. 243, 246 (Pon. 1991); Ponape Chamber of Commerce v. Nett Municipal Gov’t[1984] FMSC 2; , 1 FSM Intrm. 389, 392 (Pon. 1984).

In FSM Dev. Bank v. Ifraim, [2001] FMSC 45; 10 FSM Intrm. 1 (Chk. 2001), the defendants contended that the FSM Constitution barred the FSM Supreme Court from exercising jurisdiction in the case because of article XI, section 6(a), which states that "[t]he trial division of the Supreme Court has original and exclusive jurisdiction in cases . . . in which the national gmeernment is a party except where an interest in land is at issue." The defendants argued that since an interest in land was at issue in the case, article XI, section 6(a), the FSM Supreme Court was barred from exercising jurisdiction.

The court in Ifraim disagreed with the defendants. The court stated that it could not accept the proposition that if the national government was a party and an interest in land was at issue, then the court would be barred from hearing the case. The court explicitly acknowledged that the FSM Supreme Court may hear cases based on diversity where an interest in land was at issue. 10 FSM Intrm. at 5. In light of the FSM cases addressing this issue, this court finds that it properly has jurisdiction over this matter. The fact that land is involved does not strip this court of jurisdiction over this matter.

3. Procedural Requirements of Removal

FSM Supreme Court GCO 1992-2 sets forth the governing procedures for the removal of state

[11 FSM Intrm. 109]

court actions to the FSM Supreme Court. Removal is effected upon compliance with those procedures. The state court takes no further action following removal unless and until a case is remanded. Wilson v. Pohnpei Family Headstart Program, Inc., [1996] FMSC 48; 7 FSM Intrm. 411, 412 (Pon. 1996).

In order to remove a case from a state court to the FSM Supreme Court, the moving party must file a verified petition with the FSM Supreme Court within sixty days from the date that the party receives, through service or otherwise, a copy of an initial or amended pleading, motion, order or other paper from which it may first be ascertained that the case is removable. The petition for removal must contain a short and plain statement of the facts which entitle the party to remove along with a copy of all process, pleadings and orders upon or by the moving party in such action. Porwek v. American Int’l Co. Micronesia[1998] FMSC 25; , 8 FSM Intrm. 436, 438 (Chk. 1998); Darmalane v. Harden, [1998] FMSC 1; 8 FSM Intrm. 225, 227 (Pon. 1998).

It appears that defendants have procedurally complied with the requirements of FSM General Court Order 1992-2, § II(D). They have fileerifierified petition with this court within 60 days from being served with plaintiff’s complaint, and the petition contaishort and plain statement of the facts which (defendants argue) entitles them to remove thie this action. Therefore, assuming this case is removable, this case would have been effectively removed upon defendants’ proper filing of the petition to remove on May 6, 2002.

4. Lack of Diversity Between Parties of Record

Looking only at the parties of record in this case, it appears that diversity of citizenship does not exist. One recent FSM case has held that when diverse citizenship was not present on the record in a case when it was removed, it cannot be created by the FSM Supreme Court’s order when the court lacks jurisdiction to issue any but procedural orders. Enlet v. Bruton, [2001] FMSC 54; 10 FSM Intrm. 36, 40 (Chk. 2001). In Enlet, the defendant filed a removal petition on the basis that she and her husband were developing an aquaculture business project on the disputed tidelands and that her husband, an American citizen, was thus a necessary party to the action, and together they would assert a counterclaim against the plaintiffs. This joinder, defendant asserted, would create diversity jurisdiction in the case and that the FSM Supreme Court would have jurisdiction over the matter under FSM Constitution article XI, section 6(b).

The court in Enlet disagreed with defendant. The court in Enlet noted that FSM GCO 1992-2, section II(B) states that the removal petition must be filed within sixty days after the receipt by any party, through service or otherwise, of a copy of an initial or amended pleading, order or other paper from which it may first be ascertained that the case is removable. 10 FSM Intrm. at 40 (emphasis added). The court also stated that in determining the question of jurisdiction based on the parties’ citizenship, the FSM Supreme Court must only look to the parties of record. Id. The court explained its reasoning, stating that:

Diverse citizenship was not present on the record in this case when it was removed. It cannot be created now by this court’s order when this court lacks the jurisdiction to issue any but procedural orders. When the FSM Supreme Court does not have subject-matter jurisdiction in a case, it does not have the authority or jurisdiction to issue an order joining another party, and any such order it did issue would be void for want of jurisdiction. For the parties’ diversity of citizenship to be the basis for removal, it must be present at the time the case is removed.

10 FSM Intrm. at 40.

[2002] FMKSC 16; [11 FSM Intrm. 110]

In the present case, defendants filed a petition to remove which included a copy of defendants’ answer and counterclaim filed in PCA No. 92-2002. In defendants’ counterclaim, defendants allege that Carlos Etscheit Soap Company, Inc., is the lessee of the property which is the subject matter of this action and a necessary party to this action. Defendants’ Answer and Counterclaim at 4-5.

At first glance, it would seem that this case should be removed as this court has jurisdiction over the subject matter of FSM Civil Action No. 2000-002, and that FSM Civil Action No. 2002-020 (or PCA No. 92-2002) is clearly litigation over the same thing; e.g., ownership and right to possession of Tract No. 046-A-011. However, diverse citizenship does not appear to be present on the record in this case. Plaintiff Gilmete and defendants Adams and Varner are all citizens of the FSM and the State of Pohnpei. Although defendants have argued that Carlos Etscheit Soap Company, Inc. ("CESCI") is a necessary party, they have not joined CESCI prior to removing this case from the Pohnpei Supreme Court. This court cannot imply or create diversity of citizenship in this case. If the FSM Supreme Court does not have subject matter jurisdiction in this case, it does not have the authority or jurisdiction to issue an order joining another party.

Conclusion

The court does not condone plaintiff Gilmete’s apparent procedural maneuver to attempt to re-litigate this matter by filing an action in Pohnpei Supreme Court when the issues clearly have already been adjudicated by the FSM Supreme Court in prior cases and in Civil Action No. 2000-002. However, this court does not wish to ignore the decision of Enlet v. Bruton. Therefore, the court HEREBY GRANTS plaintiff Gilmete’s motion for remand. Defendants may file another petition for removal when diversity of citizenship exists between the parties of record.

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^[1] In Porwek v. American Int’l Co. Micronesia[1998] FMSC 25; , 8 FSM Intrm. 436, 438 (Chk. 1998), it was held that the plaintiff’s opposition to a petition to remove, regardless of how it was styled, was actually a motion to remand the case to the state court on the ground that it was improvidently removed.