Billimon v Marar [2007] FMSC 21; 15 FSM Intrm. 87 (Chk. 2007) (11 June 2007)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Billimon v. Marar, [2007] FMSC 21; 15 FSM Intrm. 87 (Chk. 2007)

OSHIRO BILLIMON,
Plaintiff,

vs.

ASSOCIATE JUSTICE KESKE MARAR,
PETER SISRA, and HONORIA DOIS SISRA,
Defendants.

CIVIL ACTION NO. 2007-1003

ORDER DENYING RESTRAINING ORDER

Dennis K. Yamase
Associate Justice

Hearing: June 8, 2007
Decided: June 11, 2007

APPEARANCES:

For the Plaintiff:
Johnny Meippen, Esq.
P.O. Box 705
Weno, Chuuk FM 96942

For the Defendants:
Keske Marar, pro se
Peter Sisra, pro se

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HEADNOTES

Civil Procedure - Injunctions
In considering motions for a temporary restraining order, courts weigh the possibility of irreparable injury to the plaintiff, the balance of possible injuries between the parties, the movant’s possibility of success on the merits, and the impact of any requested action upon the public interest. Billimon v. Marar, [2007] FMSC 21; 15 FSM Intrm. 87, 88 (Chk. 2007).

Civil Procedure - Injunctions
The essential requirement to obtain a temporary restraining order is that the applicant must clearly show that immediate and irreparable injury or loss or damage would occur if the temporary restraining order is not granted - the plaintiff must show that his damage will be irreparable - that it cannot be remedied in any way except by the drastic measure of a restraining order. An injury is not irreparable if there is an adequate alternative remedy. Billimon v. Marar, [2007] FMSC 21; 15 FSM Intrm. 87, 89(Chk. 2007).

[2007] FMCSC 9; [15 FSM Intrm 90]

Judgments
Chuuk State Supreme Court Civil Procedure Rule 62(a) automatically stays court enforcement of all money judgments for ten days. Billimon v. Marar, [2007] FMSC 21; 15 FSM Intrm. 87, 89 (Chk. 2007).

Civil Procedure - Injunctions
When the movant could seek relief from judgment under Chuuk Civil Procedure Rule 60(b) or he could appeal and seek a stay pending appeal by having the sum garnished paid into the state court’s registry to remain there until the outcome of any appellate proceedings, he has adequate legal remedies and injunctive releif will be denied. Furthermore, injunctive relief should be denied when money damages or other relief upon the litigation’s conclusion will fully compensate for the threatened interim action. Billimon v. Marar, [2007] FMSC 21; 15 FSM Intrm. 87, 89 (Chk. 2007).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

On June 8, 2007, the court heard the plaintiff’s motion for a temporary restraining order in this matter. The plaintiff, plaintiff’s counsel, and all defendants except Honoria Dois Sisra were present. After hearing the parties, the court took the matter under advisement. The motion is denied. The reasons follow.

I.

This case arose from a state court case (Civil Action No. 237-2005) in which Peter Sisra and his wife Honoria Dois Sisra sought reimbursement for money spent on buying a fiberglass boat and an outboard motor from Oshiro Billimon because the motor turned out to be broken when they went to pick it up. On November 10, 2005, the Sisras filed suit in the Chuuk State Supreme Court, alleging that only $1,000 of the purchase price of $7,105 had been repaid. The complaint sought damages of $7,105, plus $10,000 for "suffering," $3,500 for "legal fees and costs," and $2,000 in "late fees and penalties at 18%." Various proceedings took place between then and January 2007 when Billimon appeared with counsel and asserted that he had filed an answer. No trial or other proceedings were held that day. On February 14, 2007, the Sisras and their counsel appeared and the Billimon and his counsel did not and the Sisras sought a judgment on the pleadings or by default for Billimon’s failure to appear. Billimon asserts that he never received any notice of the February 14, 2007 proceeding or of the Sisras’ motion.

On June 5, 2007, the state court issued an Order Granting Summary Judgment, which awarded the Sisras $22,605 and ordered it garnished from any payments to be made to Billimon from Deal Fair Enterprises, which makes monthly payments to Billimon. Billimon then filed this case in this court seeking to restrain the enforcement of the June 5, 2007 judgment and garnishment order on the grounds that his FSM constitutional rights to due process of law had been violated when he had no notice of, or opportunity to be heard at, the February proceeding or on the Sisras’ motion and that he was in imminent danger that he would, as a result, be deprived of his property (funds garnished from Deal Fair Enterprises) without due process.

[15 FSM Intrm 91]

II.

In considering motions for a temporary restraining order, courts weigh the possibility of irreparable injury to the plaintiff, the balance of possible injuries between the parties, the movant’s possibility of success on the merits, and the impact of any requested action upon the public interest. Ponape Transfer & Storage v. Pohnpei State Public Lands Auth., [1986] FMSC 21; 2 FSM Intrm. 272, 276-77 (Pon. 1986). The essential requirement to obtain a temporary restraining order is that the applicant must clearly show that immediate and irreparable injury or loss or damage would occur if the temporary restraining order is not granted - the plaintiff must show that his damage will be irreparable - that it cannot be remedied in any way except by the drastic measure of a restraining order. Asugar v. Edward, [2005] FMSC 23; 13 FSM Intrm. 209, 212 (Chk. 2005). An injury is not irreparable if there is an adequate alternative remedy. Kony v. Mori, 6 FSM Intrm. 28, 29 (Chk. 1993).

Billimon cannot make this showing. First, Chuuk State Supreme Court Civil Procedure Rule 62(a) automatically stays court enforcement of all money judgments (and the judgment against Billimon is a money judgment) for ten days. Therefore the Sisras cannot lawfully enforce the garnishment order until sometime after June 15, 2007. In that ten days, Billimon could seek relief from judgment under Chuuk Civil Procedure Rule 60(b). Or Billimon could appeal (although Billimon’s stated preference at the hearing was that jurisdiction remain in the state trial court so once enforcement had been restrained he could obtain his relief there) and seek a stay pending appeal by having the sum garnished paid into the state court’s registry to remain there until the outcome of any appellate proceedings. Billimon thus has adequate legal remedies. Furthermore, injunctive relief should be denied when money damages or other relief upon the litigation’s conclusion will fully compensate for the threatened interim action. Ponape Transfer & Storage, 2 FSM Intrm. at 276. In Billimon’s case, if he is wrongfully and unconstitutionally deprived of money owed to him by Deal Fair Enterprises, money damages will fully compensate him.

Accordingly, the motion for a temporary restraining order is denied.

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[15 FSM Intrm 92]