Harden v Continental Airlines, Inc [2012] FMSC 1; 18 FSM Intrm. 141 (Pon. 2012) (12 January 2012)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2008-032

WAYNE HARDEN,
Plaintiff,

vs.

CONTINENTAL AIRLINES, INC., GOVERNMENT OF THE FEDERATED STATES OF MICRONESIA, and FSM DEPARTMENT OF IMMIGRATION,
Defendants.
_____________________________________________

ORDER DENYING PLAINTIFF'S MOTION TO AMEND COMPLAINT AND ORDERING FURTHER REPORT FROM PLAINTIFF

Dennis K. Yamase
Associate Justice

Hearing: March 8, 2011
Decided: January 12, 2012

APPEARANCES:

For the Plaintiff: Marstella E. Jack, Esq.

P.O. Box 2210

Kolonia, Pohnpei FM 96941

For the Defendant: Stephen V. Finnen, Esq.

(Continental Airlines) P.O. Box 1450

Kolonia, Pohnpei FM 96941

For the Defendants: Lorrie Johnson-Asher, Esq.

(FSM & Dep't of Immigr.) Assistant Attorney General

FSM Department of Justice

P.O. Box PS-105

Palikir, Pohnpei FM 96941

HEADNOTES

Civil Procedure - Pleadings - Amendment
Leave to amend should be freely given in the absence of undue delay, bad faith, or dilatory motive on the movant's part, or the movant's repeated failure to cure deficiencies by amendments previously allowed; or undue prejudice to the opposing party by virtue of the amendment's allowance; or futility of amendment. Harden v. Continental Air Lines, Inc., [2012] FMSC 1; 18 FSM Intrm. 141, 144 (Pon. 2012).

Civil Procedure - Pleadings - Amendment
Although a court should exercise its discretion liberally to allow amended pleadings, a motion to amend a complaint may be denied if it is futile. An amendment may be futile if the claim(s) sought to be added are barred by the relevant statute of limitations or if the amendment to the complaint fails to state a claim. Harden v. Continental Air Lines, Inc., [2012] FMSC 1; 18 FSM Intrm. 141, 144 (Pon. 2012).

Immigration
U.S. citizens, like all other non-citizens, must hold a valid passport at the time of entry into the FSM. A valid passport means a passport that is valid for a period of not less than 120 beyond the date of entry. Harden v. Continental Air Lines, Inc., [2012] FMSC 1; 18 FSM Intrm. 141, 145 (Pon. 2012).

Immigration
Absent any express regulatory or statutorily established exceptions, the FSM Immigration Regulations and Title 50, F.S.M.C., as amended, control the FSM entry requirements for all non-citizens, including U.S. citizens, regardless of whether they are habitual residents and/or spouses of FSM citizens. Harden v. Continental Air Lines, Inc., [2012] FMSC 1; 18 FSM Intrm. 141, 145 (Pon. 2012).

Immigration
No express statutory language declares that habitual residents, as provided under 50 F.S.M.C. 104(2), have an exemption from complying with Part 2.2 of the FSM Immigration Regulations since Part 2.2 does not contradict 50 F.S.M.C. 104(2). The statutory and regulatory provisions' plain meaning is that for a habitual resident there is no exception to Part 2.2's application. Harden v. Continental Air Lines, Inc., [2012] FMSC 1; 18 FSM Intrm. 141, 146 (Pon. 2012).

Administrative Law
A regulation can neither contradict nor extend the reach of statutory law. Harden v. Continental Air Lines, Inc., [2012] FMSC 1; 18 FSM Intrm. 141, 146 n.2 (Pon. 2012).

Immigration
The grant of an entry permit to any non-citizen spouse is specifically authorized on a showing of being an FSM citizen's lawful spouse. A non-citizen spouse can invoke this specific statutory grant when applying to the government for an entry permit, but an FSM citizen's U.S. citizen lawful spouse is not exempted from the passport validity requirements under Part 2.2 of the Regulations. Harden v. Continental Air Lines, Inc., [2012] FMSC 1; 18 FSM Intrm. 141, 146 (Pon. 2012).

Immigration
The statutory and regulatory provisions dealing with entry permits, habitual residents, and spouses of FSM citizens, are independent of Part 2.2 of the FSM Immigration Regulations and do not provide an exception to the regulations' passport validity requirements. Harden v. Continental Air Lines, Inc., [2012] FMSC 1; 18 FSM Intrm. 141, 147 (Pon. 2012).

Immigration
Unless statutory or regulatory amendments mandate otherwise, "non-citizens" include U.S. citizens and do not except habitual residents or U.S. citizen spouses of FSM citizens. Since there are no exceptions to the 120-day passport validity requirement under the regulations and Title 50 of the F.S.M.C., as amended, no non-citizen, including U.S. citizens who are habitual residents or spouses of FSM citizens are exempt from the operational reach of Part 2.2 of the FSM Immigration Regulations. Harden v. Continental Air Lines, Inc., [2012] FMSC 1; 18 FSM Intrm. 141, 147 (Pon. 2012).

* * * *

COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

I. Background

On March 8, 2011, the Court held a hearing on these pending motions: (1) the Plaintiff Wayne Harden's (Harden) Motion for an Enlargement of Time; Motion to Amend Complaint filed September 23, 2010; (2) the Defendant Continental Airlines, Inc.'s (Continental) Opposition to Motion to Amend; Motion to Dismiss filed September 27, 2010; and (3) the Defendant Federated States of Micronesia's and FSM Department of Immigration's (together FSM) Motion in Opposition to Amend; Motion to Dismiss filed October 4, 2010. The Court also received from Harden a Plaintiff's Opposition to Dismissal Motion filed October 20, 2010.

Marstella E. Jack, Esq. represents Harden. Stephen V. Finnen, Esq. represents Continental. Lorrie Johnson-Asher, Esq., FSM Assistant Attorney General represents the FSM and FSM Immigration.

II. Facts

On May 16, 2007, Harden attempted to board Continental Flight No. 956, going from Guam to Pohnpei. Upon check-in in Guam, agents of Continental, upon their examination of Harden's passport, determined that his passport did not have the required 120 days of validity required by Part 2.2 of the FSM Immigration Regulations (Regulations). Due to this, Continental refused to board Harden. As a result, he found himself remaining in Guam for several days while he sought to re-enter the FSM. Harden incurred hotel, car rental, food, and other incidental expenses. Harden departed Guam and arrived in Pohnpei on May 19, 2007.

On July 21, 2008, Harden filed his complaint alleging among other claims a violation of his rights and that Continental incorrectly applied the FSM Immigration Regulations when they denied him boarding. On September 9, 2008, Harden filed a Motion for Declaratory Judgment, seeking among other relief, a declaration that Continental is liable for all consequential damages incurred as a result of being wrongfully denied boarding.

On March 4, 2010, the Court issued a declaratory judgment determining that Part 2.2 of the FSM Immigration Regulations requires that U.S. citizens, like all other non-citizens, must hold a valid passport at the time of entry into the FSM and that a valid passport must be in compliance with the 120 day validity requirement. See Order at 4 (Mar. 4, 2010).

On September 23, 2010, Harden filed his Motion for Enlargement of Time; Motion to Amend Complaint seeking leave of court to amend his complaint.

III. Leave to Amend Complaint

An amendment to a complaint as provided under FSM Civil Rule 15(a) states that:

[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

In the absence of undue delay, bad faith, or dilatory motive on the movant's part, or the movant's repeated failure to cure deficiencies by amendments previously allowed; or undue prejudice to the opposing party by virtue of the amendment's allowance; or futility of amendment, leave to amend should be freely given. Primo v. Pohnpei Transp. Auth., [2000] FMSC 35; 9 FSM Intrm. 407, 413 (App. 2000).

Although a court should exercise its discretion liberally to allow amended pleadings, a motion to amend a complaint may be denied if it is futile. An amendment may be futile if the claim(s) sought to be added are barred by the relevant statute of limitations or if the amendment to the complaint fails to state a claim. Tom v. Pohnpei Utilities Corp., [1999] FMSC 25; 9 FSM Intrm. 82, 87 (App. 1999); Primo, 9 FSM Intrm. at 413.

IV. Analysis

Harden is requesting that this Court grant him leave to amend his complaint filed on July 21, 2008. He states that his first attorney did not follow his instructions in filing this matter and that he has a new attorney and has instructed her to attempt to amend his complaint to reflect what he had wanted filed in the first place.

1. Harden's Proposed Amendment

Harden did not attach his proposed amended complaint to his Motion to Amend Complaint filed September 23, 2010. This has made it difficult for the Defendants to respond to Harden's proposed amendments since it does not have the exact language of the amendments. Notwithstanding the absence of a proposed amended complaint, the Court will consider the proposed amendment as presented in Harden's motion and will consider his motion to enlarge and to amend his complaint. Harden's motions have been fully briefed, oppositions by all parties have been submitted, and oral arguments on the motions have been heard.

Harden argues that given his classification as a "habitual resident" under 50 F.S.M.C. 104(2), as amended, and his legal status as a spouse of an FSM citizen pursuant to 50 F.S.M.C. 103(10), he is exempt from Part 2.2 of the FSM Immigration Regulations.

In its opposition, Continental argues that (1) the amendment is futile because the issue has already been decided by the Court and therefore fails to state a claim; (2) Harden's request to amend should be denied due to an unreasonable delay in requesting the amendment, as he has waited for over three years from when he purchased his ticket to advance his new habitual resident and spouse claims; and (3) Harden has not filed an amended complaint with his motion to amend. Continental's Opp'n at 3-4.

The FSM argues that the FSM Immigration Regulations pertaining to the requirements for validity of a passport applies to all "non-citizens" wishing to enter the FSM and that there are no exceptions. They further submit that since Harden is a non-citizen, he must have with him at any port of entry into the FSM, a valid passport with the required validity period as one of the documents listed and described in Part 2.2(a) of the regulations. They state that this issue has been decided in the Court's Order of March 4, 2010 and therefore Harden's amendment fails to state a claim. FSM & FSM Immigration's Opp'n at 4-6.

2. Declaratory Judgment

The Court, in its March 4, 2010 Order, determined that Part 2.2. of the FSM Immigration Regulations requires that U.S. citizens, like all other non-citizens, must hold a valid passport at the time of entry into the FSM. For U.S. citizens, a valid passport means a passport that is valid for a period of not less than 120 beyond the date of entry. Order at 4 (Mar. 4, 2010).

The pertinent parts of the FSM Immigration Regulations provide as follows:

PART 2. ENTRY OF NON CITIZENS

2.2 Documents Required. All non-citizens entering the FSM shall have in their possession at the time of their entry the following documents, and shall present such documents for inspection upon entry and upon demand at other reasonable times. Travel on commercial aircraft between states of the FSM is considered to be international travel and as such, non-citizens are required to comply with these requirements upon arrival to any state of the FSM from a commercial aircraft regardless of the point of boarding.

(a) A valid passport issued by the government of the country of the non citizen's citizenship or nationality. The passport must be valid at the time of entry and for a period of not less than 120 days beyond the authorized duration of stay in the FSM. The passport shall show no qualification impairing the holder from effective and timely departure from the FSM.

(emphasis added).

The Court has not been presented with any provisions within the subject regulations, or Title 50 of the F.S.M.C., as amended (relating to the Immigration Act), specifically addressing an exception for habitual residents or spouses of FSM citizens from the entry requirements of Part 2.2.

Absent any express regulatory or statutorily established exceptions, the Court finds that the FSM Immigration Regulations and Title 50, F.S.M.C., as amended, control the FSM entry requirements for all non-citizens, including U.S. citizens, regardless of whether they are habitual residents and/or spouses of FSM citizens.

3. Harden's Status as a Habitual Resident

Harden submits that the FSM Immigration Regulations are not applicable to him as a habitual resident. Harden argues that he is exempted from the Regulations on the premise that he is qualified as a "habitual resident" under 50 F.S.M.C. 104(2) (as amended).[1]
Harden submits that based on his more than one year residency in Pohnpei, he qualifies as a "habitual resident" and that a habitual resident is not subject to the 120-day passport validity requirement in Part 2.2 of the Regulations. In support of his assertion that he is a habitual resident, he offers as proof copies of the stamped dates in his U.S. passport.

Even accepting Harden's status as a habitual resident, the Court can finds no express statutory language declaring that habitual residents, as provided under 50 F.S.M.C. 104(2), have an exemption from complying with Part 2.2 of the FSM Immigration Regulations.[2] Part 2.2 of the Regulations does not contradict 50 F.S.M.C. 104(2). The Court, therefore, must follow the statutory and regulatory provisions' plain meaning and finds that there is no exception to the application of Part 2.2 of the Regulations to Harden. The Court also cannot discern any relevance to the distinction between habitual resident and visitor that would affect the application of Part 2.2 of the Regulations to Harden.

4. Harden's Status as a Spouse of an FSM Citizen

Harden further claims that Continental should not have denied him boarding because of his legal status as a spouse of an FSM citizen pursuant to 50 F.S.M.C. 103(10). Harden again asserts that the Regulations, specifically Part 2.2(a) do not apply to him. The Defendants counter this argument by pointing out that 50 F.S.M.C. 103(10) applies to entry permits and not passport validity.

50 F.S.M.C. 103 provides 12 different types of entry permits. This section lists the various types of entry permits that can be granted by the FSM government to non-citizens. Subsection 10 of § 103me="fnB3" href="#fn3">[33">[3] specifically authorizes the grant of a permit to any non-citizen spouse, upon a showing of being a lawful spouse of an FSM ci. A non-citizen spouse can invoke this specific statutory gory grant of an entry permit when applying to the government for a permit. Absent from § 103's lge is anything supposupporting Harden's contention that a U.S. citizen lawful spouse of an FSM citizen is exempted from the passport validity requirements under Part 2.2 of the Regulations.

The FSM in their opposition explained the justification and public policy behind the 120-day rule, that "it allows for any non-FSM citizens to legally resident in the FSM; and because a non-FSM citizen's passport must remain valid 120 days beyond the authorized length of stay, this requirement allows the FSM Government the ability to remove a non-citizen from the FSM without facing any travel restrictions." See FSM & FSM Immigration's Opp'n at 6.

Harden made a similar argument in support of his declaratory judgment with regard to Parts 8.1 (Entry Permits not Required) and 8.2 (Rights Upon Entry) of the FSM Immigration Regulations. In dealing with this issue, the Court stated that: "Both Parts 8.1 and 8.2 deal with distinctly different aspects of a U.S. citizen's FSM immigration rights than the initial entry requirements specifically dealt with in Part 2.2. Parts 8.1 and 8.2 do not have the effect on the application of Part 2.2 to U.S. citizens that is asserted by the Plaintiff." Order at 4 (Mar. 4, 2010).
A similar situation presents itself here, the statutory and regulatory provisions dealing with entry permits, habitual residents, and spouses of FSM citizens, are dealt with independently of Part 2.2 of the FSM Immigration Regulations and do not provide Harden an exception to the regulations.

V. Conclusion

Accordingly, the Court determines that the proposed amendments are futile and do not state a claim. Unless statutory or regulatory amendments have mandated otherwise, the Court construes "non-citizens" to include U.S. citizens and does not find any exceptions for habitual residents, nor U.S. citizen spouses of FSM citizens. The Court, in its Order of March 4, 2010, made the determination that there have been "no exceptions" given to the 120-day passport validity requirement under the regulations and Title 50 of the F.S.M.C., as amended. Given that there are no exceptions, any non-citizen, including U.S. citizens who are habitual residents or spouses of FSM citizens are not exempt from the operational reach of Part 2.2 of the FSM Immigration Regulations.

For the reasons discussed above, the Court concludes that Harden's Motion to Enlarge and to Amend Complaint is futile, does not state a claim, and therefore, is Hereby denied. In its Order of March 4, 2010, the Court ordered the parties to inform the Court of their position on what further proceedings need to be undertaken in this matter. Harden did not provide a direct response to this Order but, filed his motions to enlarge and amend the complaint. The Court hereby orders that Harden shall respond to the Court's inquiry on whether any further proceedings are necessary in this matter. Harden shall do so by Thursday, January 26, 2012. After the Court receives Harden's response it shall make a ruling on Continental and the FSM's Motions to Dismiss.

* * * *

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^[1]Entry Permits – Duration: Habitual residence: Change of Status

(2) Habitual residence.

(a) A non-citizen who remains in the Federated States of Micronesia as a visitor under section 103(1) of this chapter for one year or more shall be classified as a habitual resident.

(b) A habitual resident may be present in the Federated States of Micronesia only for 30 day visits as permitted section 103(1) of this chapter or for a longer period of time as permitted by section 103(2), (3), (4), (5), (6), (7), (8), (9), (10), (11) or (12) of this chapter.

^[2] A regulation can neither contradict nor extend the reach of statutory law. Klavasru v. Kosrae, [1995] FMSC 14; 7 FSM Intrm. 86, 91 (Kos. 1995); see also Abraham v. Kosrae, [1999] FMKSC 2; 9 FSM Intrm. 57, 60 (Kos. S. Ct. Tr. 1999) (administrative regulations that are inconsistent or out of harmony with the statute or that conflict with the statute are invalid or void, and the court not only may, but it is their obligation to strike down such regulations).

^[3] Subsection 10 reads as follows: "(10) An entry permit shall be issued to a lawful spouse of a citizen. The permit shall be revoked or shall be denied upon a finding that the parties are divorced or irreconcilably separated, or that the citizen-spouse is deceased. The President or his designee has the authority to grant or reissue the permit for indefinite duration upon a finding of hardship."