Berman v Pohnpei State Government [2012] FMSC 37; 18 FSM Intrm. 418 (App. 2012) (2 October 2012)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P7-2011
(Civil Action No. 2008-036)

MARY BERMAN and KADALINO DAMARLANE,
Appellants,

vs.

POHNPEI STATE GOVERNMENT and POHNPEI TRANSPORTATION AUTHORITY,
Appellees.
_____________________________________________

ORDER DENYING INJUNCTION

Decided: October 2, 2012

BEFORE:

Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court
Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court
Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Appellants: Mary Berman, Esq.

P.O. Box 163

Kolonia, Pohnpei FM 96941

For the Appellees: Ira J. Shifflett, Esq.

Pohnpei Assistant Attorney General

Pohnpei Department of Justice

P.O. Box 1555

Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Appellate Review - Motions
The appellate division may decide motions without oral argument. Berman v. Pohnpei, [2012] FMSC 37; 18 FSM Intrm. 418, 420 n.1 (App. 2012).

Appellate Review - Stay - Civil Cases; Civil Procedure - Injunctions
Under Appellate Rule 8(a), the appellate court may grant an injunction during the pendency of an appeal. An injunction during the pendency of an appeal is a preliminary injunction. Berman v. Pohnpei, [2012] FMSC 37; 18 FSM Intrm. 418, 420 (App. 2012).

Appellate Review - Stay - Civil Cases; Civil Procedure - Injunctions
When affidavits are not attached to a motion for injunction during pendency of appeal but reference is made to affidavits filed earlier in the trial division that might be found in various places in the trial court record and when the other parts of the record that the movants deem relevant to their motion are also not attached to the motion, the movants have failed to comply with Appellate Rule 8(a)'s technical requirements. Berman v. Pohnpei, [2012] FMSC 37; 18 FSM Intrm. 418, 421 (App. 2012).

Appellate Review - Stay - Civil Cases; Civil Procedure - Injunctions
When the appellate court has not previously construed Appellate Rule 8(a)'s provisions about the issuance of injunctions, it may consult U.S. authority for guidance because FSM Rule 8(a) is drawn from a similar U.S. rule. Berman v. Pohnpei, [2012] FMSC 37; 18 FSM Intrm. 418, 421 n.2 (App. 2012).

Appellate Review - Stay - Civil Cases; Civil Procedure - Injunctions
Litigants should not lightly seek injunctions pending appeal. Berman v. Pohnpei, [2012] FMSC 37; 18 FSM Intrm. 418, 421 (App. 2012).

Appellate Review - Stay - Civil Cases; Civil Procedure - Injunctions
An appellate court, in ruling on a request for an injunction pending appeal, must engage in the same inquiry as when it reviews the grant or denial of a preliminary injunction, and in considering whether to grant a preliminary injunction, courts consider four factors: 1) the likelihood of success on the merits of the party seeking injunctive relief, 2) the possibility of irreparable injury to the movant, 3) the balance of possible injuries or inconvenience to the parties that would flow from granting or denying the relief, and 4) any impact on the public interest. Generally, the purpose of an injunction pending appeal is to maintain the status quo while the appeal is heard and decided. Berman v. Pohnpei, [2012] FMSC 37; 18 FSM Intrm. 418, 421 (App. 2012).

Civil Procedure - Injunctions
Courts generally enter prohibitory injunctions - an injunction forbidding some act. Courts rarely grant mandatory injunctions because courts are ill-equipped to involve themselves in day-to-day administration and because of the difficulty of enforcing such injunctions. Berman v. Pohnpei, [2012] FMSC 37; 18 FSM Intrm. 418, 421 (App. 2012).

Appellate Review - Stay - Civil Cases; Civil Procedure - Injunctions - Likelihood of Success
When the movants do not seek to maintain the status quo pending appeal but seek to substantially alter or even reverse the status quo by obtaining a mandatory injunction against Pohnpei requiring it to take certain actions to prevent the activities of persons not parties to the case, on that ground alone the movants' likelihood of success is poor. Berman v. Pohnpei, [2012] FMSC 37; 18 FSM Intrm. 418, 421 (App. 2012).

Appellate Review - Stay - Civil Cases; Civil Procedure - Injunctions - Irreparable Harm
One who seeks an injunction pending appeal must show irreparable injury. Berman v. Pohnpei, [2012] FMSC 37; 18 FSM Intrm. 418, 421 (App. 2012).

Appellate Review - Stay - Civil Cases; Civil Procedure - Injunctions - Irreparable Harm
When what the movants seek to enjoin is not trespass and nuisance on their land but on a causeway or berm which is not their land and when the trial court denied their initial motion for injunction on January 7, 2009, they did not appeal that denial as they could have under Appellate Rule 4(a)(1)(B), the movants have not shown irreparable harm or injury. Berman v. Pohnpei, [2012] FMSC 37; 18 FSM Intrm. 418, 421-22 (App. 2012).

Appellate Review - Stay - Civil Cases; Civil Procedure - Injunctions - Balance of Injuries
The balance-of-injuries factor will not weigh in the movants' favor when the movants ask that Pohnpei be ordered to take certain actions against non-parties at an unknown cost and with an unknown exposure by Pohnpei to potential liability to those non-parties while leaving the movants free of any expense or liability. Berman v. Pohnpei, [2012] FMSC 37; 18 FSM Intrm. 418, 422 (App. 2012).

Appellate Review - Stay - Civil Cases; Civil Procedure - Injunctions - Public Interest
A preliminary injunction will not be issued when, regardless of where the public interest lies, that factor cannot overcome the other three and cause the issuance of the preliminary injunction sought. Berman v. Pohnpei, [2012] FMSC 37; 18 FSM Intrm. 418, 422 (App. 2012).

Appellate Review - Stay - Civil Cases; Civil Procedure - Injunctions - Bond
A very substantial cash bond may be required in order to grant a preliminary injunction that is mandatory in nature. Berman v. Pohnpei, [2012] FMSC 37; 18 FSM Intrm. 418, 422 (App. 2012).

* * * *

COURT'S OPINION

PER CURIAM:

On August 13, 2012, the appellants, Mary Berman and Kadalino Damarlane, filed their Motion for Injunction, and, on August 22, 2012, the appellees, Pohnpei state government and the Pohnpei Transportation Authority ("PTA"), filed their Opposition to Motion for Injunction. The appellants' motion is denied without oral argument.[1] Our reasons follow.

I.

Relying on Appellate Rule 8(a), Berman and Damarlane seek an injunction that would order Pohnpei to close access to an abandoned causeway or berm near their residence; compel Pohnpei to obtain an earthmoving permit to remove the berm; compel Pohnpei to remove the latrine that others have currently located on the berm; compel Pohnpei to ban public use of the berm and to remove all electrical lines running out on the berm; and to remand the matter for further proceedings. This relief is virtually the same as that the movants seek in their appeal on the merits.

Pohnpei and PTA oppose the motion because the activity sought to be enjoined is caused by non-state actors - non-parties not subject to their control or direction - for whom they are not liable and because nothing has changed since the trial court denied the movants' earlier requests for preliminary injunctions.

II.

Under Appellate Rule 8(a), we may grant an injunction during the pendency of an appeal. An injunction during the pendency of an appeal is a preliminary injunction. Rule 8(a) provides that:

Application for . . . aer .&. #160;. grantgranting an injunction during the pendency of an appeal must ordinarily be made in the first instance incourtaled from. A motion for such relief may be made to the Supreme Court appellate dite divisiovision or to a justice thereof, but the motion shall show that application to the court appealed from for the relief sought is not practicable, or that the court appealed from has denied the application, or has failed to afford the relief which the applicant requested, with any reasons given by the court appealed from for its action. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant. . . .

III.

"Litigants should not lightly seek injunctions pending appeal." Classic Components Supply, Inc. v. Mitsubishi Elecs. Am., Inc., [1988] USCA7 128; 841 F.2d 163, 165 (7th Cir. 1988).[2] An appellate court, "[i]n ruling on a request for an injunction pending appeal, must engage in the same inquiry as when it reviews the grant or denial of a preliminary injunction," Walker v. Lockhart, [1982] USCA8 353; 678 F.2d 68, 70 (8th Cir. 1982), and in considering whether to grant a preliminary injunction, courts will consider four factors: 1) the likelihood of success on the merits of the party seeking injunctive relief, 2) the possibility of irreparable injury to the movant, 3) the balance of possible injuries or inconvenience to the parties that would flow from granting or denying the relief, and 4) any impact on the public interest, FSM v. GMP Hawaii, Inc., [2011] FMSC 27; 17 FSM Intrm. 555, 593 (Pon. 2011). Generally, the purpose of an injunction pending appeal is to maintain the status quo while the appeal is heard and decided. Walker, 678 F.2d at 70.

But that is not what is sought here. Berman and Damarlane do not seek to maintain the status quo pending appeal. They seek to substantially alter or even reverse the status quo by obtaining a mandatory injunction against Pohnpei requiring it to take certain actions to prevent the activities of persons not parties to this case. Courts generally enter prohibitory injunctions - an injunction forbidding some act. Udot Municipality v. FSM, [2001] FMSC 29; 10 FSM Intrm. 354, 360 (Chk. 2001). Courts rarely grant mandatory injunctions because courts are ill-equipped to involve themselves in day-to-day administration and because of the difficulty of enforcing such injunctions. Id. On that ground alone the movants' likelihood of success is poor. Moreover, since a government's inaction or indifference is not a constitutional violation, Primo v. Pohnpei Transp. Auth., [2000] FMSC 35; 9 FSM Intrm. 407, 412 (App. 2000), its inaction would usually not warrant an injunction. Success on the merits is thus unlikely.

"One who seeks an injunction pending appeal must show irreparable injury." Classic Components Supply, 841 F.2d at 164. The movants characterize their harm as irreparable because, in general, trespass and nuisance on land is considered irreparable harm. But what the movants seek to enjoin is not trespass and nuisance on their land but on a causeway or berm which is not their land. When the trial court denied their initial motion for injunction on January 7, 2009, they did not appeal that denial as they could have under Appellate Rule 4(a)(1)(B). The movants have not shown irreparable harm or injury.

The balance-of-injuries factor does not weigh in the movants' favor either. The movants ask that Pohnpei be ordered to take certain actions against non-parties at an unknown cost and with an unknown exposure by Pohnpei to potential liability to those non-parties while leaving the movants free of any expense or liability.

Regardless of where the public interest lies, that factor cannot overcome the other three and cause us to issue the preliminary injunction sought.

Furthermore, given the mandatory nature of the injunction sought, we would require a very substantial cash bond in order to grant a preliminary injunction along the lines that the movants seek. FSM App. R. 8(b). None has been offered.

IV.

Accordingly, for all the foregoing reasons, the motion for an injunction is denied. This appeal will proceed on its merits.

* * * *

---

^[1] We may decide motions without oral argument. Jonah v. FSM Dev. Bank, [2011] FMSC 22; 17 FSM Intrm. 506, 507 (App. 2011); Kosrae v. Jim, [2010] FMSC 14; 17 FSM Intrm. 97, 98 (App. 2010); Smith v. Nimea, [2009] FMSC 16; 16 FSM Intrm. 346, 348 (App. 2009); Palsis v. Tafunsak Mun. Gov’t[2008] FMSC 59; , 16 FSM Intrm. 116, 127 (App. 2008); Heirs of George v. Heirs of Dizon, [2008] FMSC 58; 16 FSM Intrm. 100, 111 (App. 2008); Kosrae v. Langu, [2008] FMSC 56; 16 FSM Intrm. 83, 86 (App. 2008); Christian v. Urusemal, [2006] FMSC 25; 14 FSM Intrm. 291, 293 (App. 2006).

^[2] Since we have not previously construed Appellate Rule 8(a)’s provisions about the issuance of injunctions, we may consult U.S. authority for guidance because our Rule 8(a) is drawn from a similar U.S. rule. Kosrae v. Langu, [2008] FMSC 56; 16 FSM Intrm. 83, 87 n.1 (App. 2008); Berman v. College of Micronesia-FSM, [2008] FMSC 36; 15 FSM Intrm. 622, 624 n.1 (App. 2008); Santos v. Bank of Hawaii, [2000] FMSC 28; 9 FSM Intrm. 306, 308 n.1 (App. 2000); Iriarte v. Etscheit, [1998] FMSC 3; 8 FSM Intrm. 231, 235 (App. 1998); Jano v. King, [1992] FMSC 11; 5 FSM Intrm. 326, 329 (App. 1992).