Federated States of Micronesia v Kana Maru No. 1 [2006] FMSC 50; 14 FSM Intrm. 368 (Chk. 2006) (25 August 2006)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as FSM v. Kana Maru No.1, [2006] FMSC 50; 14 FSM Intrm. 368 (Chk. 2006)

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

KANA MARU NO. 1, a fishing vessel, TETUMI

NISHI, TOSHIHIKO IKEMA, and SANKO BUSSAN

COMPANY (GUAM), LIMITED,
Defendants.

CIVIL ACTION NO. 2006-1011

ORDER DENYING MOTIONS AND DISMISSING PUNITIVE CLAIMS

Dennis K. Yamase
Associate Justice

Decided: August 25, 2006

APPEARANCES:

For the Plaintiff:
Keith J. Peterson, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendants:
David Ledger, Esq.
Carlsmith Ball LLP
134 West Soledad Avenue, Suite 401
P.O. Box BF
Hagatna, Guam 96932-5027

* * * *

HEADNOTES

Civil Procedure - Dismissal
A Rule 12(b)(6) motion to dismiss cannot be granted unless it appears to a certainty that no relief could be granted under any state of facts that can be proved in support of the claim. In reviewing a motion to dismiss for failure to state a claim, a court must assume that the facts alleged in the pleading are true, and view them in the light most favorable to the claimant. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 371-72 (Chk. 2006).

Civil Procedure - Dismissal
A motion to dismiss for failure to state a claim will be denied when it is more in the nature of an affirmative defense that requires that certain facts be proven and certain rulings of law made before it can

[14 FSM Intrm. 376]

be effective since a motion to dismiss for failure to state a claim must be based solely on the allegations in the pleading. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 372 (Chk. 2006).

Civil Procedure - Pleadings
A pleading’s purpose is simply to give the opposing party notice of the essence of its claim with sufficient clarity to enable it to answer, that is, fair notice of factual wrong openly stated on the basis of facts asserted. The rules are flexible and informal rather than technical, and only require notice pleading. The pleading need only be a short and plain statement of the claim and give the opposing party fair notice of the factual wrong on the basis of the facts asserted. The legal theory advanced, if one is advanced, need not be correct. Thus, if a cognizable cause of action can be discerned from the facts as pled, the pleading party has complied with Civil Procedure Rule 8(a)’s notice pleading requirement. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 372 (Chk. 2006).

Civil Procedure - Dismissal
If the pleading shows that the claimant is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief, the pleading is sufficient. A claim will not be dismissed and a party precluded from relief because the claimant’s lawyer has misconceived the proper legal theory of the claim, and a party may be granted the relief to which he is entitled even if the party has not demanded such relief in the party’s pleadings. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 372 (Chk. 2006).

Civil Procedure - Dismissal
When the arguments raised in support of a motion to dismiss for the failure to state a claim are in the nature of defenses to that count and require that certain facts be proven and certain rulings of law made first, the court therefore cannot say that there are no set of facts that could be proven in support of the claim and the motion to dismiss will be denied. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 372 (Chk. 2006).

Civil Procedure - Dismissal; Civil Rights
Civil Rule 8(a)’s purpose is to put the opposing party on notice of the nature of the claim against it. Its pleading requirements are interpreted liberally, and a claim that alleges facts sufficient to put the defendant on notice as to the nature and basis of the claim being made sufficiently complies with the rule. Thus, while a decision by policy-making officials causing the alleged violations is a necessary element of the claim, a count claiming due process violations satisfies the pleading requirement when a set of facts could be proven in regard to the vessel’s stop and seizure and later detention that would support the due process claim. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 372 (Chk. 2006).

Civil Procedure - Dismissal; Sovereign Immunity
When whether 6 F.S.M.C. 702(2), which does not limit the FSM’s liability to a certain dollar amount, or 6 F.S.M.C. 702(4), which limits recovery on an individual claim in that subsection to $20,000, applies, must await the presentation of facts not yet in evidence and requires that certain facts be proven and certain rulings of law made before it can be resolved, the claims against the FSM of over $20,000 will not be dismissed for failure to state a claim. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 373 (Chk. 2006).

Constitutional Law - Case or Dispute -Standing
When the claim against the FSM asserts that the FSM published false and misleading information about certain crewmen and the vessel’s captain is the only crew member who is a party to the action, the court must assume that this is his personal claim since a party must assert his own legal rights and interests, and cannot rest his claim to relief on third parties’ legal rights or interests. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 373 (Chk. 2006).

Civil Procedure - Dismissal; Civil Rights
While a policy-making official’s decision causing the alleged violations is a necessary element of

[14 FSM Intrm. 377]

a due process claim, that, at the litigation’s start, the claimant might not know which policy-making official decided what does not mean that he has failed to state a claim. It may be that after discovery and trial, he might not be able to prove this element and so his claim will fail, but before the government has answered, all he needs to do is put the government on notice as to the claim’s nature. Thus the court cannot say that no set of facts that could be proven would not support this claim and will therefore not dismiss it for failure to state a claim. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 373 (Chk. 2006).

Civil Procedure - Dismissal
A claim that alleges that the claimants and their agents have been harassed by the government will not be dismissed for the failure to state a claim because, although there is no tort or cause of action denominated as "harassment" there are a number of torts that have harassment as a significant component and if a pleading shows that the claimant is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief, the pleading is sufficient and the claim will not be dismissed because the claimant’s lawyer has misconceived the proper legal theory of the claim. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 373 (Chk. 2006).

Civil Procedure - Dismissal; Torts - Governmental Liability
A motion to strike a punitive damages claim against the FSM on the ground that, under FSM law, punitive damages are not recoverable against the national government on any theory, although styled as a motion to strike under Rule 12(f), may more accurately be characterized as one (under Rule 12(b)(6)) to dismiss for failure to state a claim upon which relief can be granted. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 374 (Chk. 2006).

Civil Procedure - Dismissal; Civil Procedure - Pleadings
Rule 12(f) motions to strike may be used to strike from any pleading any insufficient defense. They cannot be used to "strike" legally insufficient claims, for which Rule 12(b)(6) is the appropriate vehicle. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 374 (Chk. 2006).

Civil Procedure - Dismissal; Civil Procedure - Pleadings
A Rule 12(f) motion to strike is neither an authorized nor a proper way to procure the dismissal of all or of a part of a complaint, or a counterclaim, or to strike affidavits. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 374 (Chk. 2006).

Civil Procedure
Although the court must first look to FSM sources of law, when the court has not previously considered certain aspects of an FSM civil procedure rule that is identical to a U.S. rule, it may look to U.S. sources for guidance in interpreting the rule. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 374 n.1 (Chk. 2006).

Civil Procedure - Pleadings
If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading and the motion shall point out the defects complained of and the details desired, but, in view of the liberal discovery rules and procedures available, motions for more definite statement are generally disfavored. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 374 (Chk. 2006).

[14 FSM Intrm. 378]

Civil Procedure - Pleadings
Motions for a more definite statement are granted only if the pleadings addressed are so vague that they cannot be responded to, not if a better affirmative pleading would enable the movant to provide a more enlightening or accurate response. Therefore, if a pleading meets the requirements of Rule 8 and fairly notifies the opposing party of the nature of the claim, a motion for more definite statement will not be granted. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 374 (Chk. 2006).

Civil Procedure - Pleadings
Rule 12(e) is designed to strike at unintelligibility rather than want of detail. A motion for a more definite statement should not be used to test an opponent’s case by requiring him to allege certain facts or retreat from his allegations and it should not be granted merely to require more evidentiary detail that may be the subject of discovery. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 374 (Chk. 2006).

Civil Procedure - Pleadings
When a due process allegation is not so vague and ambiguous that the government cannot frame a response to it and when the government asks the court to require the defendants to inform it of which defendants were harmed, what due process rights they were deprived of, and which policy-making official(s) caused this deprivation, and when these are details that the government can seek to learn through discovery, the government’s motion for a more definite statement will be denied. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 375 (Chk. 2006).

Civil Procedure - Pleadings
The are a few matters which must be specifically pleaded or pled with particularity - the circumstances constituting fraud or mistake, and special damage. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 375 (Chk. 2006).

Civil Procedure - Pleadings
When motions to dismiss, to strike, and to require a more definite statement are denied, the movant has ten days after service of the order to serve its answer to the counts involved. FSM v. Kana Maru No. 1[2006] FMSC 50; , 14 FSM Intrm. 368, 375 (Chk. 2006).

* * * *

COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

On July 21, 2006, the defendants filed their answer, including counterclaims, to the FSM’s amended complaint, and on July 31, 2006, they filed their Amended Counterclaims. On August 11, 2006, the FSM filed its Motions Pursuant to FSM Civ. R. 12(b), 12(e) and 12(f) with Respect to Certain Counts of the Amended Counterclaim. The defendants filed their opposition to those motions on August 24, 2006.

The motions ask the court to dismiss the counterclaims stated in counts I, II, III, IV, VIII, IX, and X for failure to state claims for which relief can be granted and to strike count VII. In the alternative, it asks the court to strike Counts III and IV and to require the defendants to make the statements in its counterclaims in Counts I and II more definite and certain or to strike those counts.

I. Failure to State a Claim

A Rule 12(b)(6) motion to dismiss cannot be granted unless it appears to a certainty that no relief could be granted under any state of facts that can be proved in support of the claim. Nahnken of Nett v.

[14 FSM Intrm. 379]

United States[1996] FMSC 9; , 7 FSM Intrm. 581, 586 (App. 1996). In reviewing a motion to dismiss for failure to state a claim, a court must assume that the facts alleged in the complaint (or in this case, the counterclaims) are true, Reg v. Falan, [2003] FMSC 28; 11 FSM Intrm. 393, 399 (Yap 2003), and view them in the light most favorable to the plaintiff. Pau v. Kansou, [1998] FMSC 38; 8 FSM Intrm. 524, 526 (Chk. 1998). A motion to dismiss for failure to state a claim will be denied when it is more in the nature of an affirmative defense that requires that certain facts be proven and certain rulings of law made before it can be effective since a motion to dismiss for failure to state a claim must be based solely on the plaintiffs’ allegations in their complaint. Naoro v. Walter, [2003] FMSC 17; 11 FSM Intrm. 619, 621 (Chk. 2003).

A pleading’s purpose is simply to give the opposing party notice of the essence of its claim with sufficient clarity to enable it to answer, that is, fair notice of factual wrong openly stated on the basis of facts asserted. Faw v. FSM, 6 FSM Intrm. 33, 37 (Yap 1993). The rules are "flexible and informal rather than technical," id., and only require notice pleading, Semwen v. Seaward Holdings, Micronesia, [1995] FMSC 17; 7 FSM Intrm. 111, 113 (Chk. 1995). "The [pleading] need only be a short and plain statement of the claim and give the [opposing party] fair notice of the factual wrong on the basis of the facts asserted. The legal theory advanced, if one is advanced, need not be correct." Id. at 114 (citation omitted). Thus, if a cognizable cause of action can be discerned from the facts as pled, the pleading party has complied with Civil Procedure Rule 8(a)’s notice pleading requirement. If the pleading shows that the claimant is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief, the pleading is sufficient. Semwen, 7 FSM Intrm. at 114. A claim will not be dismissed and a party precluded from relief because the claimant’s lawyer has misconceived the proper legal theory of the claim, id., and a party may be granted the relief to which he is entitled "even if the party has not demanded such relief in the party’s pleadings," FSM Civ. R. 54(c).

The FSM asks the court to dismiss the counterclaims in counts I, II, III, IV, VIII, IX, and X for failure to state claims. Count I alleges a false arrest. The FSM presumes that this count pertains only to the Kana Maru No. 1 and its captain, Tetumi Nishi, the only defendants that were arrested. The arguments that the FSM raises in support of its motion are in the nature of defenses to that count and require that certain facts be proven and certain rulings of law made first. The court therefore cannot say that there are no set of facts that could be proven in support of this claim. The motion to dismiss is denied as to Count I.

Count II asserts due process violations. The FSM’s major concern here is that the allegations are too vague to adequately state a claim. The FSM also asserts that this count fails to state a claim because it does not allege that the asserted violations were caused by government officials who are responsible for final policy making. While the FSM may be correct that a decision by policy-making officials causing the alleged violations is a necessary element of this claim, Civil Rule 8(a)’s purpose is to put the opposing party on notice of the nature of the claim against it. Its pleading requirements are interpreted liberally, and a claim that alleges facts sufficient to put the defendant on notice as to the nature and basis of the claim being made sufficiently complies with the rule. Faw, 6 FSM Intrm. at 36-37. Count II thus satisfies the pleading requirement since a set of facts could be proven in regard to the vessel’s stop and seizure and later detention that would support the due process claim. The motion to dismiss Count II is denied.

Counts III and IV allege that the while the Kana Maru No. 1 has been under arrest and in the FSM’s safekeeping, Chuuk state officials unlawfully removed from the Kana Maru No. 1 and converted to their own benefit the defendants’ property. Since there are sets of facts which could be proven to support these claims, these counts will not be dismissed.

The FSM also contends that the claim in Count IV must be dismissed to the extent that it exceeds $20,000, the statutory limit on individual claims against the FSM under 6 F.S.M.C. 702(4). The defendants contend that 6 F.S.M.C. 702(2), not 6 F.S.M.C. 702(4), applies and that subsection (2) does not limit the FSM’s liability to a certain dollar amount. The determination of whether 702(2) or 702(4) applies, must await the presentation of facts not yet in evidence. Furthermore, subsection 702(4) provides that: "Recovery on

[14 FSM Intrm. 380]

an individual claim as set out in this subsection shall not exceed $20,000." It remains to be seen whether Count IV is one individual claim, or more than one individual claim. Count IV’s claim that exceeds $20,000 will not be dismissed at this time, but requires that certain facts be proven and certain rulings of law made before it can be resolved.

Count VIII asserts that the FSM published false and misleading information about certain crewmen. Since the captain is the only crew member who is a party to this action, the court must assume that this is his personal claim since a party cannot raise the claims of third persons; but may raise only his own claims. Generally, a party must assert his own legal rights and interests, and cannot rest his claim to relief on third parties’ legal rights or interests. Udot Municipality v. FSM, [2003] FMSC 60; 12 FSM Intrm. 29, 40 (App. 2003); see also Eighth Kosrae Legislature v. FSM Dev. Bank, [2003] FMSC 27; 11 FSM Intrm. 491, 497, 500 (Kos. 2003) (petitioner generally must assert its own legal rights and interests and cannot rest its claim to relief on third parties’ legal rights or interests); College of Micronesia-FSM v. Rosario, [2001] FMSC 3; 10 FSM Intrm. 175, 188 (Pon. 2001) (a defendant cannot defeat a plaintiff’s summary judgment motion by raising a third party’s potential claim), aff’d[2003] FMSC 10; , 11 FSM Intrm. 355, 360 (App. 2003) (agreeing with trial court); Dorval Tankship Pty, Ltd. v. Department of Finance, [1997] FMSC 24; 8 FSM Intrm. 111, 115 (Chk. 1997) (generally true that parties may not assert third parties’ rights).

That being so, the court cannot say that there is no set of facts which might be proven under which would support the captain’s claim he has been held in a false light. This count will therefore not be dismissed.

Count IX alleges that certain crew members were denied due process by being detained on the vessel in unsanitary conditions. Again, since the captain is the only crew member who is a party to this action, the court assumes that this is the captain’s claim. The FSM asserts that this count fails to state a claim because it does not allege that the asserted violations were caused by government officials who are responsible for final policy making. Again, while the FSM may be correct that a policy-making official’s decision causing the alleged violations is a necessary element of this claim, the pleading rules’ purpose is to put the opposing party on notice of the claim against it and this count adequately does that. That, at this point, the captain might not know which policy-making official decided what does not mean that he has failed to state a claim. It may be that after discovery and trial, he might not be able to prove this element and so his claim will fail, but at this time, all he needs to do is put the government on notice as to the claim’s nature. The court cannot say that no set of facts that could be proven would not support this claim. Therefore Count IX will not be dismissed.

Count X alleges that the defendants and their agents have been harassed by the government. The government correctly notes that there is no tort or cause of action denominated as "harassment." The government therefore asserts that this count fails to state a claim for which the court may grant relief. The government also correctly notes that there are a number of torts that have harassment as a significant component and asserts that this count should be dismissed since it does not state a specific tort. But if a pleading shows that the claimant is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief, the pleading is sufficient and the claim will not be dismissed because the claimant’s lawyer has misconceived the proper legal theory of the claim. Semwen, 7 FSM Intrm. at 114. Since this count realleges the allegations in all of the other counts, the government is put on notice of the conduct that the defendants consider to be the factual basis for their harassment claim even though the defendants’ lawyer, at this point, is unable to identify which of the torts involving harassment this count might entail. Count X therefore will not be dismissed.

Accordingly, the Rule 12(b)(6) motion to dismiss is denied.

II. Striking Pleadings

[14 FSM Intrm. 381]

The FSM also moves to strike the defendants’ counterclaims for punitive damages in Counts I, II, III, IV, and VII on the ground that, under FSM law, punitive damages are not recoverable against the FSM national government on any theory. Although this motion is styled as a motion to strike under Rule 12(f), it may more accurately be characterized as one to dismiss for failure to state a claim upon which relief can be granted (under Rule 12(b)(6)). Moses v. M.V. Sea Chase, [2001] FMSC 56; 10 FSM Intrm. 45, 50 (Chk. 2001). Rule 12(f) motions to strike may be used to strike "from any pleading any insufficient defense." FSM Civ. R. 12(f); Senda v. Semes, [1998] FMSC 34; 8 FSM Intrm. 484, 494-95 (Pon. 1998). They cannot be used to "strike" legally insufficient claims, for which Rule 12(b)(6) is the appropriate vehicle. A Rule 12(f) motion "is neither an authorized nor a proper way to procure the dismissal of all or of a part of a complaint, or a counterclaim, or to strike affidavits." 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1380, at 644 d. 1990).^[1]

The defendants’ opposition, in a footnote, withdraeir punitive damages claims. The motion to dismiss the punitive damages claims is thereforeefore granted.

III. More Definite Statement

The FSM moves, in the alternative, that the court order the defendants to make their statements in Counts I and II more definite and certain. The applicable rule provides that:

If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired.

FSM Civ. R. 12(e).

In view of the liberal discovery rules and procedures available, motions for more definite statement are generally disfavored. FSM Dev. Bank v. Nait, [1996] FMSC 44; 7 FSM Intrm. 397, 399 (Pon. 1996). Such motions are granted only if the pleadings addressed are so vague that they cannot be responded to, not if a better affirmative pleading would enable the movant to provide a more enlightening or accurate response. Id. "Therefore, if a pleading meets the requirements of Rule 8 and fairly notifies the opposing party of the nature of the claim, a motion for more definite statement will not be granted." Id. "Rule 12(e) is designed to strike at unintelligibility rather than want of detail. A motion for a more definite statement should not be used to test an opponent’s case by requiring him to allege certain facts or retreat from his allegations." Juneau v. First Wis. Nat’l Bank, 60 F.R.D. 46, 48 (E.D. Wis. 1973) (citation omitted). "A motion for a more definite statement should not be granted merely to require more evidentiary detail that may be the subject of discovery." Woods v. Reno Commodities, Inc., 600 F. Supp. 574, 580 (D. Nev. 1984).

Count I, as mentioned above, alleges a false arrest. This allegation is not so vague and ambiguous that the national government cannot frame a response to it. The government does not state what further details it desires in Count I. Whatever they are, the government can seek to learn them through the discovery process. Nor is the due process allegation in Count II so vague and ambiguous that the government cannot frame a response to it. For Count II, the government asks the court to require the defendants to inform it of which defendants were harmed, what due process rights they were deprived of, and which policy-making official(s) caused this deprivation. These are details that the government can seek

[14 FSM Intrm. 382]

to learn through discovery.

The are a few matters which must be specifically pleaded or pled with particularity - "the circumstances constituting fraud or mistake," FSM Civ. R. 9(b), (which is not alleged here), and special damage, FSM Civ. R. 9(g), which the defendants do pray for, but for which the government has not sought a more definite or certain statement.

Accordingly, the motion for a more definite statement is denied.

IV. Conclusion

The government’s motions to dismiss, to strike, and to require a more definite statement are denied except that the defendants’ claims for punitive damages are dismissed. The government has ten days after service of this order to serve its answer to the counts involved. FSM Civ. R. 12(a).

* * * *

---

^[1] Although the court must first look to FSM sources of law, FSM Const. art. XI, § 11, when the chas not previpreviously considered certain aspects of an FSM civil procedure rule that is identical to a U.S. rule, it may to U.urces for guidance in interpreting the rule, see, e.g., Primo v. Pohnpei Transp. nsp. Auth.Auth.[2000] FMSC 35; , 9 FSM Intrm. 407, 413 n.3 (App. 2000); Tom v. Pohnpei Utilities Corp., [1999] FMSC 25; 9 FSM Intrm. 82, 87 n.2 (App. 1999); Senda v. Mid-Pacific Constr. Co., [1994] FMSC 20; 6 FSM Intrm. 440, 444 (App. 1994).