Berman v FSM National Police [2011] FMSC 56; 18 FSM Intrm. 103 (Pon. 2011) (15 December 2011)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2011-007

MARY BERMAN and KADALINO DAMARLANE,
Plaintiffs,

vs.

FSM NATIONAL POLICE, FSM SURVEILLANCE POLICE, and FSM GOVERNMENT,
Defendants.
_____________________________________________

ORDER DENYING MOTION FOR INJUNCTION; SCHEDULING ORDER

Martin G. Yinug
Chief Justice

Decided: December 15, 2011

APPEARANCES:

For the Plaintiffs: Mary Berman, Esq.

P.O. Box 163

Kolonia, Pohnpei FM 96941

For the Defendants: Pole Antanroi, Esq.

Assistant Attorney General

FSM Department of Justice

P.O. Box PS-105

Palikir, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Injunctions
The power to grant injunctive relief is discretionary, and in considering a motion for a temporary restraining order, a court looks to: 1) the likelihood of success on the merits; 2) the possibility of irreparable injury to the moving party; 3) the balance of possible injuries; and 4) the public interest. Berman v. FSM Nat'l Police, [2011] FMSC 56; 18 FSM Intrm. 103, 105 (Pon. 2011).

Civil Procedure - Injunctions - Likelihood of Success
Without touching on the question of likelihood of success on the merits of the underlying case, a motion for injunctive relief in which the moving party asks the court to prevent a complained-of conduct or activity from occurring, but which is filed after the completion of the conduct or activity, cannot succeed when the conduct or activity is non-continuing. Berman v. FSM Nat'l Police, [2011] FMSC 56; 18 FSM Intrm. 103, 105 (Pon. 2011).

Civil Procedure - Injunctions
When the complained-about inaction on the part of the FSM Government has not changed since 1991 and when the applicable statute of limitations for such a claim is six years, the cause of action is barred and consequently, the court cannot grant injunctive relief. Berman v. FSM Nat'l Police, [2011] FMSC 56; 18 FSM Intrm. 103, 105-06 (Pon. 2011).

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COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

This matter comes before the court most recently on the plaintiffs' motion for injunction, filed February 9, 2011. For the reasons below, the court denies the motion.

I. Background

This matter is the latest in a long series of litigation by the named plaintiffs against various defendants, all having to do with a causeway in the lagoon off of the plaintiffs' residence in Mesenpal, in the area of Awak, in U Municipality, in the state of Pohnpei. See, e.g., Damarlane v. Pohnpei Transp. Auth., Civil Action No. 1990-075; Berman v. Pohnpei, Civil Action No. 2008-036; Damarlane v. U Mun. Gov't, Civil Action No. 2011-001; and Damarlane v. Damarlane, Civil Action No. 2011-004. The plaintiffs have alleged here, in addition to the shared allegation that the existence of the causeway is unlawful based on a dissolved order, that two of the named defendants, the FSM National Police ("National Police") and the FSM Marine Surveillance Police ("Marine Police"), held a New Year party on Friday, January 14, 2011, on that causeway, which party disturbed the plaintiffs' peace. Specifically, in their motion for injunction, the plaintiffs asked that the court "[e]njoin the illegal activities" and order the FSM Government to remove the berm and "restore the affected area" in accordance with an environmental impact assessment of one Dr. Maragos, and the above-mentioned dissolved order, in Civil Action No. 1990-075, dated May 17, 1991. Mot. Inj. at 4.

The National Police and the Marine Police held a New Year party on January 14, 2011, on the causeway. Personnel arrived around 9 a.m., and began deploying amplifying speakers. At 10:30 a.m., Berman called the Office of the Secretary of Justice ("Office") to complain; the acting Secretary "said he would take care of it." Compl. at 2. When the sounds did not cease or decrease in volume, Berman "continued calling" the Office. At 10:45 a.m., or 15 minutes after she first placed the call, Berman went to the site personally, where she asked a number of staff and personnel standing near the speakers individually to turn down the volume. Each refused, and one informed Berman that a live band would be arriving in the afternoon, at which sound levels would increase. The live band arrived at 1:30 p.m. Berman continued calling the Office throughout the afternoon, and at 5 p.m., she called "a final time" to tell the Office that she would be filing a lawsuit. (This matter is the result of the filing.) At 8 p.m., Berman called the officer-in-charge of the National Police, who acknowledged knowing of the party but indicated he had no jurisdiction to command the partygoers to cease. Berman then "summoned" state police, who did not shut down the party. Sounds from the party continued until almost midnight.

II. Analysis

The power to grant injunctive relief is discretionary, and in considering a motion for a temporary restraining order, a court looks to: (1) the likelihood of success on the merits; (2) the possibility of irreparable injury to the moving party; (3) the balance of possible injuries; and (4) the public interest. Pohnpei Port Auth. v. Ehsa, [2008] FMSC 43; 16 FSM Intrm. 11, 13 (Pon. 2008); Carlos Etscheit Soap Co. v. Epina, [1997] FMSC 5; 8 FSM Intrm. 155, 161 (Pon. 1997); Ponape Enters. Co. v. Bergen, [1993] FMSC 52; 6 FSM Intrm. 286, 288 (Pon. 1993). The plaintiffs do not specify the injunctive relief they seek. Based on the facts alleged in the complaint and in the motion, however, the court understands the plaintiffs' request to be for a temporary restraining order or preliminary injunction against the National Police and the Marine Police, and a permanent injunction mandating the FSM Government to remove the causeway or berm at issue.

The plaintiffs' motion for injunction is almost completely dedicated to asking the court to order the FSM Government to remove the causeway. The plaintiffs dedicate less than half a page of text, out of a total of three and a half pages, to the party, and the balance to the causeway; and the plaintiffs do not discuss any of the factors courts consider when reviewing such motions. The "supplement to motion for injunction" of March 16, 2011, addresses the four factors, but again is dedicated almost solely to the causeway. Given such insouciance as to the New Year party which was supposed to be the basis of this entire matter, the court can only guess at the gravity or frivolity of the plaintiffs' actions.

More importantly, the complaint in this matter was filed on January 26, 2011, almost two full weeks after the complained-about New Year party, which occurred on January 14, 2011. The plaintiffs have not alleged that the National Police and the Marine Police have any plans to repeat the exercise of holding a New Year party at the causeway-that is, the complained-of conduct or activity is non-continuing, and as of the date the complaint in this matter was filed, had been completed. Without touching on the question of likelihood of success on the merits of the underlying case, a motion for injunctive relief in which the moving party asks the court to prevent a complained-of conduct or activity from occurring, but which is filed after the completion of the conduct or activity, cannot succeed where the conduct or activity is non-continuing.

The other part of the motion for injunction relates to a permanent injunction mandating the FSM Government to remove the causeway which has vexed the plaintiffs for over 20 years. The plaintiffs allege many grievances about the causeway, but offer as legal support for their request only their own interpretation of a long-since-dissolved order in a different case, Damarlane v. Pohnpei Transp. Auth., Civil Action No. 1990-075. The court in that case issued an order on October 12, 2011, explaining for the final time to the plaintiffs that their reliance on the May 17, 1991 Order in that case is misplaced and misguided. [Damarlane v. Pohnpei Transp. Auth., [2011] FMSC 46; 18 FSM Intrm. 52 (Pon. 2011).] Further, in the plaintiffs' own words, the complained-about inaction on the part of the FSM Government-and the Pohnpei State Government, which is not a party in this matter-has not changed since 1991. Mot. Inj. at 2. The applicable statute of limitations for such a claim is six years. 6 F.S.M.C. 805. This cause of action is therefore barred; consequently, the court cannot grant injunctive relief.

III. Conclusion

Because no effective preventative relief is available with regard to the National Police and the Marine Police, and because the plaintiffs' cause of action is barred, the court hereby denies the plaintiffs' motion for injunction. The court further orders the parties to submit all pretrial motions, including proposed dates for trial, on the remaining cause of action, on or before Friday, January 13, 2012.

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