Ambros and Co v Board of Trustees of the Pohnpei Public Lands Trust [2003] FMSC 65; 12 FSM Intrm. 124 (Pon. 2003) (30 September 2003)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Ambros & Co. v. Board of Trustees, [2003] FMSC 65; 12 FSM Intrm. 124 (Pon. 2003)

[2003] FMSC 65; [12 FSM Intrm. 124]

AMBROS & COMPANY, INC. and AMBROS SENDA,
Plaintiffs,

vs.

BOARD OF TRUSTEES OF THE POHNPEI PUBLIC
LANDS TRUST and DOES 1-25,
Defendants,

KUINSI ALEXANDER,
Counterclaimant.

CIVIL ACTION NO. 2001-036

MEMORANDUM OF DECISION

Andon L. Amaraich
Chief Justice

Hearing: September 9, 2003
Decided: September 9, 2003
Memorandum Entered: September 30, 2003

[12 FSM Intrm. 125]

APPEARANCES:

For the Plaintiffs:
Salomon Saimon, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Counterclaimant:
Sean P. Lynch, Esq.
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Parties
A party who was originally a defendant but who is not named as a defendant in the plaintiffs’ first amended complaint will remain a party to the action by virtue of his counterclaims against a plaintiff. Ambros & Co. v. Board of Trustees, [2003] FMSC 65; 12 FSM Intrm. 124, 126 n.1 (Pon. 2003).

Civil Procedure - Injunctions
The elements for a court to consider in determining a request for injunctive relief include: 1) the possibility of irreparable injury to the moving party; 2) the balance of possible injuries between the parties; 3) the movant’s likelihood of success on the merits; and 4) any impact on the public interest. Ambros & Co. v. Board of Trustees, [2003] FMSC 65; 12 FSM Intrm. 124, 127 (Pon. 2003).

Civil Procedure - Injunctions
A temporary restraining order may be granted without written or oral notice to the adverse party or that party’s attorney only if 1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate injury, loss, or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition, and 2) the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. Ambros & Co. v. Board of Trustees, [2003] FMSC 65; 12 FSM Intrm. 124, 127 (Pon. 2003).

Civil Procedure - Injunctions
The first requirement for the issuance of a temporary restraining order is that it clearly appear from specific facts shown by affidavit that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition. This requirement has not been met when it is not clear that immediate and irreparable injury will result to the applicant by virtue of the agency’s hearing proceeding as scheduled because even if the agency ruled against him at the hearing, he has a number of options at his disposal in regards to any agency decision. The possibility that the agency might issue an adverse decision does not constitute the immediate and irreparable injury to the applicant required for the issuance of a restraining order. Ambros & Co. v. Board of Trustees, [2003] FMSC 65; 12 FSM Intrm. 124, 127 (Pon. 2003).

Civil Procedure - Injunctions
Another requirement for a temporary restraining order’s issuance is that the applicant’s attorney certify to the court the efforts, if any, which have been made to give notice or the reasons supporting the claim that notice should not be required. Thus, when, in reviewing the applicant’s attorney’s

[12 FSM Intrm. 126]

affidavit, the court does not see that any efforts were made to notify the other parties to the lawsuit about the filing of the restraining order motion or any reasons why notice should not be required, the temporary restraining order motion will be denied since the Rule 65(b) requirements were not met. Ambros & Co. v. Board of Trustees, [2003] FMSC 65; 12 FSM Intrm. 124, 127-28 (Pon. 2003).

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COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

This matter came before the court on motion of counterclaimant Kuinsi Alexander, filed September 9, 2003, for an order restraining defendant Board of Trustees of the Pohnpei Public Lands Trust (the "Board") from hearing arguments related to Land Parcel 007-A-18 at its scheduled meeting for September 9, 2003. The motion was denied by the court. The court submits this memorandum discussing the reasons it denied the motion for a temporary restraining order.

Background

On September 9, 2003, counterclaimant Kuinsi Alexander[1] filed a motion seeking to restrain the defendant Board from hearing arguments relating to Land Parcel 007-A-18 (the "property") at a hearing scheduled before the Board on that same day.

On January 28, 2003, while the present case was pending before this court, plaintiff Ambros Senda filed a complaint in the Pohnpei Supreme Court against the Board for essentially the same causes of action that plaintiff Senda alleges against the Board in the case before this court, initiating Pohnpei Supreme Court case PCA No. 28-03. On February 17, 2003, plaintiff Senda and defendant Board filed (in PCA No. 28-03) a joint motion to require the Board to consider the assignment given to plaintiff Senda. On April 2, 2003, the Honorable Henry P. Biza issued an order vacating the Board’s decision to issue Alexander a residential lease, and remanded the issue to the Board to hold a hearing regarding the contending claims of right to Parcel No. 007-A-18. Alexander states that he was never made a party to the Pohnpei court case, nor was he served with any papers, nor notified in any was of the proceedings.

Alexander states that on May 12, 2003, he learned of a scheduled hearing before the Board regarding the property, and filed a motion for joinder in PCA No. 28-03 as a necessary party and a motion to vacate the court’s April 2, 2003 order. Also on May 12, 2003, Alexander filed a motion for preliminary injunction in PCA No. 28-03, requesting that the Board be enjoined from scheduling a hearing or hearing arguments related to the parcel until after the Pohnpei Supreme Court issues decisions on all pending motions in the action.

On May 12, 2003, the Honorable Justice Biza held an in-chambers conference with all parties present. The court vacated its order of April 2, 2003 and joined Alexander as a party to PCA No. 28-03, finding that it would be a miscarriage of justice to continue with the scheduled hearing.

On September 12, 2003, plaintiff Senda filed an opposition to Alexander’s motion for a

[12 FSM Intrm. 127]

temporary restraining order.

Discussion

Alexander moves pursuant to Rule 65(b) of the FSM Rules of Civil Procedure, which authorizes the issuance of a temporary restraining order. In Carlos Etscheit Soap Co. v. Epina, [1997] FMSC 5; 8 FSM Intrm. 155, 161 (Pon. 1997), the court stated that the elements to be considered by the court in determining a request for injunctive relief include: 1) the possibility of irreparable injury to the moving party; 2) the balance of possible injuries between the parties; 3) the movant’s likelihood of success on the merits; and 4) any impact on the public interest.

FSM Civil Rule 65(b) provides that:

A temporary restraining order may be granted without written or oral notice to the adverse party or that party’s attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate injury, loss, or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition, and (2) the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.

The court notes that the motion for the temporary restraining order was filed less than one hour prior to the start of the Board’s scheduled hearing. The motion bears a certificate of service that a true and correct copy of the motion was served upon the other parties in this action.

1. Immediate and irreparable injury.

The first requirement for the issuance of a temporary restraining order is that it clearly appear from specific facts shown by affidavit that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition.

The court does not find that this requirement has been met. Alexander’s attorney filed an affidavit with the motion stating the basic facts noted above. The court does not find that it is clear, from the evidence before it, that immediate and irreparable injury will result to Alexander by virtue of the Board hearing proceeding as scheduled. Even if the Board did rule against Alexander at the hearing, Alexander has a number of options at his disposal in regards to any decision issued by the Board.

The court does not believe that the possibility that the Board issues a decision adverse to Alexander constitutes the immediate and irreparable injury required for the issuance of a restraining order.

2. Efforts to give notice.

The other requirement for the issuance of a temporary restraining order is that the applicant’s attorney certify to the court the efforts, if any, which have been made to give notice or the reasons supporting the claim that notice should not be required.

In reviewing Alexander’s attorney’s affidavit, the court does not see that any efforts were made to notify the other parties to the lawsuit about the filing of the motion for the restraining order. Alexander’s counsel states that the afternoon prior to the scheduled hearing (and the filing of the motion for the restraining order), he received a message from the Board that an administrative hearing

[2003] FMSC 49; [12 FSM Intrm. 128]

was scheduled regarding Alexander’s leasehold interest in Parcel No. 007-A-18. However, Alexander’s counsel does not mention whether he made any attempt to notify the other parties prior to the filing of his motion, or any reasons why notice should not be required.

Because the court found that since the requirements of Rule 65(b) were not met, the motion for a temporary restraining order was denied orally.

Conclusion

Therefore, it is hereby ordered that the Alexander’s motion for a temporary restraining order is denied.

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^[1] Kuinsi Alexander was originally a defendant in this matter. However, plaintiffs’ first amended complaint does not name Mr. Alexander as a defendant. However, Mr. Alexander remains a party to this action by virtue of his counterclaims against Ambros & Co., Inc.