Damarlane v U Municipal Government [2011] FMSC 55; 18 FSM Intrm. 96 (Pon. 2011) (14 December 2011)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2011-001

KADALINO DAMARLANE and MARY BERMAN,
Plaintiffs,

vs.

U MUNICIPAL GOVERNMENT and IOANIS DONRE, in his official capacity as Chief Minister of U Municipality,
Defendants.
_____________________________________________ )

ORDER AND MEMORANDUM

Martin G. Yinug
Chief Justice

Decided: December 14, 2011

APPEARANCES:

For the Plaintiffs: Mary Berman, Esq.

P.O. Box 163

Kolonia, Pohnpei FM 96941

For the Defendants: Joseph S. Phillip, Esq.

P.O. Box 464

Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Dismissal - Lack of Jurisdiction
Even though the defendants have not challenged the court's jurisdiction over a matter, jurisdiction is always relevant, such that a judgment may be void if the court that rendered it lacked subject-matter or personal jurisdiction. Damarlane v. U Mun. Gov't, [2011] FMSC 55; 18 FSM Intrm. 96, 98 (Pon. 2011).

Jurisdiction - Diversity
Minimal diversity, not complete diversity, is the rule in the Federated States of Micronesia. Damarlane v. U Mun. Gov't, [2011] FMSC 55; 18 FSM Intrm. 96, 98 (Pon. 2011).

Jurisdiction - Arising under National Law
National law is not at issue in a case when the plaintiffs, in the complaint or in their initial motion for injunction, do not cite a particular national law at issue and their only mention of any sort of national law is in their October 19, 2011 "Notice of Terminology" and their October 31, 2011 "Supplement to Pending Motion for Injunction," where they cite only twenty-year-old "findings" of the FSM Secretary of Health and Human Services, and the FSM Earthmoving Regulations, neither of which apply to the defendants named in the complaint. Damarlane v. U Mun. Gov't, [2011] FMSC 55; 18 FSM Intrm. 96,98-99 (Pon. 2011).

Civil Procedure - Dismissal - Before Responsive Pleading; Civil Procedure - Pleadings
An FSM Civil Rule 12(b)(6) motion to dismiss may, at the pleader's option, be made either as a motion before the answer or as part of the answer. Damarlane v. U Mun. Gov't, [2011] FMSC 55; 18 FSM Intrm. 96, 99 (Pon. 2011).

Civil Procedure - Dismissal - Before Responsive Pleading
In reviewing a motion to dismiss, the court must accept the complaint's allegations as true and may grant the motion only if it appears to a certainty that no relief could be granted under any state of facts that could be proven in support of the claim. Damarlane v. U Mun. Gov't, [2011] FMSC 55; 18 FSM Intrm. 96, 99 (Pon. 2011).

Civil Procedure - Dismissal - Before Responsive Pleading
If matters outside the pleadings are presented to and not excluded by the court, a motion to dismiss must be treated as one for summary judgment; otherwise, only the well-pled or well-pleaded facts are to be accepted as true. Damarlane v. U Mun. Gov't, [2011] FMSC 55; 18 FSM Intrm. 96, 99 (Pon. 2011).

Civil Procedure - Dismissal - Before Responsive Pleading
Since due process and civil rights limit government but do not require any minimal level of security, much less other services and since the plaintiffs allege that the government defendants did nothing, if, as the plaintiffs suggest, the business on the causeway obtained a business license from U and then operated that business to permit consumption of alcohol without an appropriate alcoholic beverages consumption license in violation of state law, the fault is with the business, not with U, and the case will be dismissed for failure to state a claim because, even if all the facts alleged in the complaint can be proved true, no arrangement of any of these facts would give rise to a cause of action upon which this court could grant relief against either defendant. Damarlane v. U Mun. Gov't, [2011] FMSC 55; 18 FSM Intrm. 96, 99 (Pon. 2011).

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COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

The plaintiffs in this matter filed the complaint on January 3, 2011. The defendants filed a motion to dismiss for failure to state a claim upon which relief may be granted, under FSM Civ. R. 12(b)(6), in answer on January 27, 2011. Subsequently, the plaintiffs filed a motion for injunction on February 3, 2011, which the defendants opposed on March 9, 2011, and on which this court held a hearing on May 12, 2011. For the reasons given below, the court grants the defendants' January 27, 2011 motion to dismiss for failure to state a claim upon which relief may be granted, which grant also obviates the need for a response to the later-filed motions.

I. Background

The plaintiffs brought this action in relation to a long-standing dispute over the use of a causeway in the area of Awak in U Municipality in the State of Pohnpei. The same causeway was the subject of contention in the ancient case of Damarlane v. Pohnpei Transp. Auth., Civil Action No. 1990-075, and the same causeway and its use were the subjects of contention in the more recent case of Berman v. Pohnpei, Civil Action No. 2008-036, which was dismissed on October 14, 2011 [Berman v. Pohnpei, [2011] FMSC 47; 18 FSM Intrm. 67 (Pon. 2011)].
A. The Complaint

The plaintiffs allege many facts in the complaint, most having to do with what they claim is an illegal business operating on the causeway. The plaintiffs' most pressing concerns relate to the externalities of the business on the causeway, which include what plaintiffs allege to be loud music issuing from the radios of patrons of the business, screaming and shouting from inebriated patrons of the business, unpleasant odors issuing from effluvia of patrons deposited in what the plaintiffs claim is an illegal toilet or latrine operated by the same business, and pollution of the lagoon area in front of the plaintiffs' home, which the plaintiffs normally use to take walks, swim, fish, relax and sunbathe. The plaintiffs allege that none of these externalities would exist had defendant U Municipal Government ("U") not issued the business license, and that despite numerous violations of the law by the business, "U . . . does nothing to control whis when plaintiffs request assistance."

The plaintiffs also allege that defendant Ioanis Donre, Chief Minister of U, permits the business to operate because the business operators covet the plaintiffs' land, and that Donre's close relative, an attorney, sent the plaintiffs a letter demanding that they sell land to the business on the causeway. Finally, plaintiffs allege that U allows residents of U to maintain pigpens and garbage dumps in front of the plaintiffs' home, and to operate loud "boom-cars" on public roads in front of the home, and that "U . .&#1has done nothing to cono control this."

The plaintiffs pray this court award them $10,000,000 in civil rights and due process violations, and "irrepe damage" for what appears to be a claim in nuisance.

B. The Answer

In answer, the defendants admitted only paragraphs 1 and 2 of the Complaint, which set out the jurisdiction of this court and name the parties, but denied all other allegations. The defendants argue that the harms of which the plaintiffs complain were caused by third parties, and that although due process provides limits on government action, it does not guarantee minimal levels of safety and security. Primo v. Pohnpei Transp. Auth., [2000] FMSC 35; 9 FSM Intrm. 407, 412 (App. 2000).

II. Analysis

A. Jurisdiction

First, although the defendants have not challenged the jurisdiction of this court over this matter, jurisdiction is always relevant, such that a judgment may be void if the court that rendered the judgment lacked subject matter or personal jurisdiction. SeeFSM Dev. Bank v. Arthur, [2008] FMSC 37; 15 FSM Intrm. 625, 633 (Pon. 2008). The plaintiffs allege that this court has jurisdiction under FSM Const. art. XI § 6(b) because the matter "involves a dispute between a foreign citizen and a municipal government," and because "national law is at issue."

In this matter, one of the plaintiffs is a United States citizen, albeit a long-time resident of Pohnpei. Although the other plaintiff is a citizen of both the Federated States of Micronesia and of the State of Pohnpei, minimal diversity, not complete diversity, is the rule in the Federated States of Micronesia. Lee v. Han, [2005] FMSC 34; 13 FSM Intrm. 571, 576 (Chk. 2005).

However, contra the plaintiffs, national law is not at issue in this particular matter. The plaintiffs do not cite a particular national law at issue in the complaint, or in the initial motion for injunction, in which they cite Pohnpei state regulations governing toilet facilities and sewage disposal. The only mention by the plaintiffs of any sort of national law is in their October 19, 2011 "Notice of Terminology" and their October 31, 2011 "Supplement to Pending Motion for Injunction," where they cite only twenty-year-old "findings" of the FSM Secretary of Health and Human Services, and the FSM Earthmoving Regulations, neither of which apply to the defendants named in this matter.

Therefore, the only basis for this court's jurisdiction is the technical diversity between one of the plaintiffs and the defendants. Nevertheless, because minimal diversity is the rule in the Federated States of Micronesia, this court does have jurisdiction under FSM Const. art. XI, § 6(b).

B. Motion to Dismiss

The defendants contend that the U Municipal Government is not required to protect the plaintiffs against harms caused by third parties, because although due process provides limits on government action, it does not guarantee minimal levels of safety and security. Primo, 9 FSM Intrm. at 412. The plaintiffs did not respond to the first motion to dismiss, and their only objection to the later-filed motion to dismiss was that it was not timely under FSM Civ. R. 7. Nevertheless, the defendants' filing entitled "Answer" contained a motion to dismiss under FSM Civil Rule 12(b)(6), which may be made either as a motion before the answer, or as part of the answer, "at the option of the pleader." FSM Civ. R. 12(b).

In reviewing this motion, the court "must accept the complaint's allegations as true and may grant the motion only if it appears to a certainty that no relief could be granted under any state of facts that could be proven in support of the claim . . . ." thur v. Po, 16 [2009] FMSC 41; , 16 FSM Intrm. 581, 593 (Pon. 2009). If matters outside the pleadings are presented to and not excluded by the court, the motion must bated e forary judgment; otherwise, only the well-well-pled pled or weor well-pleaded facts are to be accepted as true. Id. Although the parties in this matter have conducted some discovery, they have presented substantially no new matters.

The facts upon which the court now reviews the motion to dismiss, then, are essentially those alleged in the complaint, which the court summarized under I.A, above. However, even under those facts, plaintiffs do not and have not alleged that U or its agents actively caused the harms of which the plaintiffs complain. Specifically, paragraphs 4, 5, 6, 8, 9, 11 and 13 allege that U did nothing, even when the plaintiffs asked for assistance. The defendants correctly cite Primo for the proposition that due process and civil rights limit government but do not require any minimal level of security, much less other services. If, as the plaintiffs suggest, the proprietors or operators of the business on the causeway obtained a business license from U, and then operated that business to permit consumption of alcohol without an appropriate alcoholic beverages consumption license in violation of state law, the fault is with the business, not with U. In short, even if all the facts alleged in the complaint can be proved true, no arrangement of any of these facts would give rise to a cause of action against either of the defendants upon which this court could grant relief.

III. Conclusion

Now, therefore, the court hereby grants the defendants' January 27, 2011 motion to dismiss for failure to state a claim upon which relief may be granted. The court hereby dismisses this matter, and will not address any later-filed motions.

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