Mwoalen Wahu Ileile en Pohnpei v Peterson [2017] FMSC 7; 21 FSM R. 150 (Pon. 2017) (17 February 2017)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2016-014

MWOALEN WAHU ILEILE EN POHNPEI (Traditional )
Leaders Council of Paramount Chiefs of Pohnpei), )
by and through ISO NAHNKEN OF NETT )
SALVADOR IRIARTE, )
)
Plaintiff, )
)
vs. )
)
MARCELO PETERSON, in his official capacity as )
Governor of the State of Pohnpei, CASIANO )
SHONIBER, in his capacity as Administrator of )
OFFICE OF FISHERIES AND AQUACULTURE, )
Pohnpei State Government, POHNPEI STATE )
GOVERNMENT, and YOUNG SUN INTERNATIONAL )
TRADING COMPANY, )
)
Defendants. )
)
YOUNG SUN INTERNATIONAL TRADING COMPANY, )
)
Counter-Plaintiff, )
)

vs. )
)
MWOALEN WAHU ILEILE EN POHNPEI (Traditional )
Leaders Council of Paramount Chiefs of Pohnpei), )
by and through ISO NAHNKEN OF NETT )
SALVADOR IRIARTE, and the CONSERVATION )
SOCIETY OF POHNPEI, )
)
Counter-Defendants. )
__________________________________________________ )

ORDER DENYING DEFENDANT YOUNG SUN INTERNATIONAL TRADING COMPANY’S MOTIONS
TO DISMISS AND TO DISSOLVE THE TEMPORARY RESTRAINING ORDER AND TO SUBMIT
PRE-TRIAL SCHEDULE

Mayceleen JD Anson
Specially Appointed Justice

Hearing: January 11, 2017
Decided: February 17, 2017

APPEARANCES:

For the Plaintiff: David C. Angyal, Esq.
Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941

For the Defendants: Judah C. Johnny
(Peterson, Shoniber, Assistant Attorney General
& Pohnpei) Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

For the Defendant: Joseph S. Phillip, Esq.
(Young Sun Int’l) P.O. Box 464
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Civil Procedure Dismissal Lack of Jurisdiction
A court may, out of cautionary respect for the fact that whenever it appears that the court lacks subject-matter jurisdiction, the court must dismiss the action, be favorably disposed towards hearing a second motion to dismiss, despite having heard and granted in part and denied in part the previous motions to dismiss, if subject-matter jurisdiction is the ground. The hearing and determination of any subsequently filed Civil Rule 12(b) motions will, however, be deferred until the trial unless the court otherwise determines that an immediate preliminary hearing is necessary to prevent manifest injustice. Mwoalen Wahu Ileile en Pohnpei v. Peterson, 21 FSM R. 150, 153 n.1 (Pon. 2017).

Civil Procedure Dismissal; Civil Procedure Motions Unopposed
Counsel should be well aware that although a motion to dismiss may stand unopposed, and while failure to oppose a motion is generally deemed a consent to that motion, the court still needs good grounds before it can grant the motion. Mwoalen Wahu Ileile en Pohnpei v. Peterson, 21 FSM R. 150, 154 (Pon. 2017).

Civil Procedure Filings
When a motion was served on the plaintiff on November 16, 2016, the plaintiff’s responsive papers were due no later than November 26, 2016, but, because that date was a Saturday, the opposition was due the following Monday, November 28, 2016, and the plaintiff’s opposition, filed November 28, 2016, was thus timely. Mwoalen Wahu Ileile en Pohnpei v. Peterson, 21 FSM R. 150, 154 (Pon. 2017).

Civil Procedure Dismissal Lack of Jurisdiction; Civil Procedure Pleadings Counterclaims and Cross-Claims
Whether a lawsuit is brought in bad faith has no bearing on jurisdiction. The bad faith issue is better suited for the defendant’s counter-claims. Mwoalen Wahu Ileile en Pohnpei v. Peterson, 21 FSM R. 150, 155 (Pon. 2017).

Civil Procedure Parties
The court must presume the plaintiff’s continued existence and that it is a proper party when passive acceptance or possible ignorance of a letter from one traditional leader on the other paramount leaders’ behalf, without more, is not sufficient to convince the court that a majority consensus of the paramount leaders (a requirement for the traditional leaders’ council to act) intended to withdraw from or disband the council; when only one leader responded to the court’s letter inquiring about the named plaintiff’s representation of the council; when the council’s existence is confirmed by its attendance lists, agendas, and financial records; when the state government continues to acknowledge its existence by dispersing stipends to its members and maintaining the state government position of liaison specialist to it; when the movant has previously argued that those holding traditional titles other than Nahnmwarki can be council members; and when there is sufficient evidence in the record to support the finding that the named plaintiff, whether or not a traditional, honorary, de facto, or non-member of the group, has ostensible authority to represent the council. Mwoalen Wahu Ileile en Pohnpei v. Peterson, 21 FSM R. 150, 156-57 (Pon. 2017).

Environmental Protection
That none of the edible species are included in the sea cucumber harvest’s plan does not mean that the population of such species will not be negatively affected by a harvest which is more likely than not to have an impact on the ecosystem they inhabit. Mwoalen Wahu Ileile en Pohnpei v. Peterson, 21 FSM R. 150, 158 (Pon. 2017).

Civil Procedure Injunctions Irreparable Harm
Actual harm need not exist in order for a temporary restraining order or prohibitory injunction to remain in place. Only an imminent threat of actual harm is required. Mwoalen Wahu Ileile en Pohnpei v. Peterson, 21 FSM R. 150, 158 (Pon. 2017).

Civil Procedure Injunctions
An application for a preliminary injunction may be consolidated with the trial on the merits. Mwoalen Wahu Ileile en Pohnpei v. Peterson, 21 FSM R. 150, 158 (Pon. 2017).

Civil Procedure Injunctions
When the defendants have stipulated to the extension of the temporary restraining order several times, they have thereby effectively converted it into a preliminary injunction. Mwoalen Wahu Ileile en Pohnpei v. Peterson, 21 FSM R. 150, 158 n.4 (Pon. 2017).

* * * *

COURT’S OPINION

MAYCELEEN JD ANSON, Specially Appointed Justice:

NOW before the court is defendant Young Sun International Trading Company’s (Young Sun) motion to dismiss.

I. PROCEDURAL POSTURE

On September 28, 2016, the court issued an Order Granting in Part and Denying in Part the defendants’ Motions to Dismiss for lack of standing. [Mwoalen Wahu Ileile en Pohnpei v. Peterson, 20 FSM R. 632 (Pon. 2016).] On October 6, 2016, Young Sun filed a second motion to dismiss, which was opposed by Mwoalen Wahu Ileile en Pohnpei (Mwoalen Wahu) on October 17, 2016. Young Sun submitted a reply thereto on October 20, 2016. On November 10, 2016, Young Sun filed a supplement to its motion to dismiss. Mwoalen Wahu opposed Young Sun’s supplemental motion on November 28, 2016.

Previous to that, on November 15, 2016, Young Sun filed a motion to dissolve the temporary restraining order and a motion for expedited ruling on the pending motions to dismiss and to dissolve the temporary restraining order, to which Mwoalen Wahu filed its opposition on November 25, 2016. Young Sun filed its reply to Mwoalen Wahu’s opposition to dissolve the temporary restraining order on December 6, 2016 along with its reply to Mwoalen Wahu’s opposition to its supplemental motion to dismiss and a motion to strike. Mwoalen Wahu submitted its response thereto on December 15, 2016.

On the same day, Young Sun filed a motion for urgent expedited ruling on its motion to dismiss and Mwoalen Wahu filed a motion for an order deferring all Civil Rule 12(b) defenses until trial. Shortly thereafter, on December 21, 2016, Mwoalen Wahu filed its response to Young Sun’s motion for urgent expedited ruling on its motion to dismiss. By Order dated December 21, 2016, the court denied Mwoalen Wahu’s Motion for Order for all Rule 12(b) Defenses be Deferred Until Trial and set a hearing on Young Sun’s motion to dismiss and supplements thereto for January 6, 2017.^[1] On December 30, 2016, defendants Marcelo Peterson, in his official capacity as Governor of the State of Pohnpei, Casiano Shoniber, in his capacity as Administrator of the Office of Fisheries and Aquaculture, and Pohnpei State Government (collectively, "state defendants") filed their Joinder in [Young Sun’s] Motion to Dismiss and Mwoalen Wahu filed its opposition thereto on January 6, 2017. The state defendants responded on January 10, 2017.

On January 5, 2017, Mwoalen Wahu filed a Subpoena Duces Tecum directed at Mr. Billston Charley, employed by the Pohnpei State Government as a liaison specialist to Mwoalen Wahu, ordering him to appear in court the following morning with minutes kept at meetings of Mwoalen Wahu, copies of agendas for meetings held by Mwoalen Wahu, and financial records of the state of Pohnpei showing stipends or other payment by the state of Pohnpei to Mwoalen Wahu or its constituent members from April 2016 to the date of the hearing. Minutes before the hearing scheduled for January 6, 2017, Young Sun filed a Motion to Quash [the] Subpoena Duces Tecum filed by Mwoalen Wahu the prior evening.

The court continued the hearing, modified the subpoena duces tecum, and set the hearing for January 11, 2017. That morning and afternoon, the court heard counsels’ arguments and took the pending motions under consideration. The court heard and considered testimony by His Majesty Herculano Kohler, Nahnmwarki of Sokehs (Nahnmwarki of Sokehs), and Mr. Billston Charley. The court accepted into evidence a letter written by the Nahnmwarki of Sokehs to the defendant Governor of Pohnpei Marcelo Peterson dated April 8, 2016 and payment transmittal forms, attendance lists, and agendas from several meetings held by Mwoalen Wahu subsequent to April 8, 2016.

II. DISCUSSION

A. Young Sun’s Motion to Strike

In its December 16, 2016 Motion to Strike, Young Sun contends that the court should disregard and strike from the record Mwoalen Wahu’s responsive filing in opposition to Young Sun’s supplemental motion to dismiss as untimely. Young Sun argues that the motion to dismiss should therefore be granted because of Mwoalen Wahu’s allegedly untimely opposition thereto. Notwithstanding whether or not the opposition to the motion to dismiss was timely filed herein, counsel should be well aware that although a motion to dismiss may stand unopposed, and while failure to oppose a motion is generally deemed a consent to that motion, the court still needs good grounds before it can grant the motion. FSM Telecomm. Corp. v. Helgenberger, 17 FSM R. 407, 409 (Pon. 2011).

Moreover, a review of the myriad of filings by Young Sun reveals inconsistencies in its argument that Mwoalen Wahu’s opposition was filed late, creating unnecessary confusion for the court, the other parties, and apparently itself. Young Sun’s Supplemental Motion to Dismiss was filed on November 10, 2016, along with a Certificate of Service certifying service on Mwoalen Wahu by hand delivery on November 11, 2016. Young Sun then filed an Amended Certificate of Service on November 15, 2016 purporting service by hand delivery on that day. Then again on December 15, 2016, in its Motion for Urgent Expedited Ruling, Young Sun represented, in the same filing, that the motion was served on Mwoalen Wahu on November 15, 2016, Def.’s Mot. for Urgent Expedited Ruling at 1, and November 16, 2016, id. at 2. During oral argument at the hearing, counsel for Young Sun again claimed the motion was served on November 16, 2016.

Mwoalen Wahu, in its opposition, argues that the record clearly establishes that its opposition was timely filed. The court agrees. A review of the file stamped copy in the court’s records shows a nearly unintelligible date in November closely resembling "15" or "16." The court construes any confusion created by counsel’s handwriting against the drafter and thus, for the court’s analysis, the date Mwoalen Wahu was served was November 16, 2017.

A party opposing a motion "shall not later than 10 days after service of the motion upon that party, file and serve responsive papers." FSM Civ. R. 6(d). Because service was made on Mwoalen Wahu on November 16, 2016, responsive papers were due no later than November 26, 2016. Because that date fell on a Saturday, the opposition was due the following Monday, November 28, 2016. FSM Civ. R. 6(a).^[2] Therefore, Mwoalen Wahu’s opposition, filed November 28, 2016, was timely.

ACCORDINGLY, Young Sun’s Motion to Strike is DENIED.

B. Young Sun’s Motions to Dismiss and to Dissolve the Temporary Restraining Order

i. Young Sun’s Position

Young Sun moves the court to dismiss the claims brought on behalf of Mwoalen Wahu, by and through Iso Nahnken of Nett Salvador Iriarte, on the grounds that 1) the court lacks personal and subject matter jurisdiction over the party plaintiff Mwoalen Wahu and its alleged claims because Mwoalen Wahu, as an unincorporated association of traditional leaders, was disbanded prior to the filing of this lawsuit, and 2) the lawsuit was brought in bad faith at the behest of former plaintiff and counter-defendant Conservation Society of Pohnpei.

At the outset, Young Sun claims that Mwoalen Wahu’s claims are made pursuant to 26 Pon. C. § 5-117 foeged violations of s of 26 Pon. C. § 5-107. This claim con the the basis on which the court found that Mwoalen Wahu has standing. The Conservation Society of Pohnpei (CSP) was the party plaintiff that claimed standined on the citizen suit provision in the Marine Sanctuary anry and Wildlife Refuge Act of 1999 codified at Title 26 of the Pohnpei Code, not Mwoalen Wahu. The court dismissed CSP by September 28, 2016 Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss because it found that CSP did not allege facts in the complaint or otherwise that tend to show a violation of 26 Pon. C. § 5-107 ant the facts allegedleged in the complaint were insufficient to grant traditional constitutional standing. Accordingly, the court dismissed the cause of action brought by CSP under 26 Pon. C. § 5-117 as set forth in thefierified Complaint for Injunctive and Declaratory Relief. The court, however, found that Mwoalen Wahu had traditional constitul standing wholly independent from the claims set forth pursuant to 26 Pon. C. § #160;5-117e court found thad that Mwoalen Wahu had a sufficient stake in the outcome of the controversy, that it has suffered an imminent threatened harm to its constitutly protected interest, that the threatened injury is directirectly traced to the challenged action and is of the kind likely to be redressed by a favorable decision, and that the three prudential standing principles were met, thus finding Mwoalen Wahu’s standing to sue. Thus, Young Sun’s first argument must be disregarded.

Young Sun’s main argument focuses on an alleged official communication dated April 8, 2016 to defendant Governor Peterson by the chairman of Mwoalen Wahu, Nahnmwarki of Sokehs, that attested to the dissolution of Mwoalen Wahu. Young Sun attached a copy of the letter to both its motions, and submitted a sworn affidavit by Nahnmwarki of Sokehs that he prepared and issued the letter in its second motion filed November 10, 2016. Young Sun claims the letter is fatal to the jurisdiction of this court over Mwoalen Wahu and the subject matter of this litigation for two reasons. First, Young Sun claims the letter is definitive proof that the Mwoalen Wahu disbanded or otherwise ceased to exist before the outset of this litigation, thereby divesting the court’s jurisdiction to hear the matter. It asks the court to dismiss Mwoalen Wahu and allow each traditional kingdom decide whether to bring its own claim if desired because there is no collective Mwoalen Wahu Ileile en Pohnpei. Second, Young Sun claims the letter is definitive proof that a Nahnken has no authority to act on behalf of or represent the paramount chiefs of Pohnpei.

Young Sun’s second argument appears to claim that, because this lawsuit was allegedly brought at the behest of CSP in bad faith for the sole purpose of interfering with Young Sun’s contract with the Pohnpei Office of Fisheries and Aquaculture and the Pohnpei State Government, the court does not have personal or subject matter jurisdiction. Young Sun directs the court to no legal sources which support its argument and the court can find none. Whether a lawsuit is brought in bad faith has no bearing on jurisdiction. This issue is better suited for Young Sun’s counter-claims in this matter and therefore will not be discussed any further herein.

Young Sun’s Motion to Dissolve the Temporary Restraining Order, filed November 15, 2016, re-argues the points above and adds the argument that, because there has yet to be a violation of constitutionally protected customs and traditions, there is no good reason for prolonging the temporary restraining order.

ii. Mwoalen Wahu’s Position

Mwoalen Wahu contends that the arguments put forth by Young Sun were substantially, if not completely, decided by this court’s September 28, 2016 order. It categorizes the authenticity and timing of Nahnmwarki of Sokehs’ letter as "suspect," but nevertheless argues that it cannot affect the court’s jurisdiction.

First, Mwoalen Wahu quotes this court’s previous order in which it found that the members of Mwoalen Wahu have a legal right under the Pohnpei Constitution to institute legal proceedings in order to protect their constitutionally protected interests because each member of Mwoalen Wahu is imminently threatened by the defendants’ allegedly illegal conduct. It argues that, based on that ruling, assuming arguendo that Mwoalen Wahu was defunct as an unincorporated body, it would not change the fact that each individual member of Mwoalen Wahu has standing in their own right to bring the current suit. It further argues that the letter in no way affects the rights of the other members of Mwoalen Wahu.

It further argues that whether Mwoalen Wahu exists is a settled issue and a letter from one traditional leader stating that several kingdoms are withdrawing from the organization does not definitively mean the organization is dissolved.

iii. Analysis

In weighing the evidence before the court as to the existence, and therefore personal jurisdiction over and standing of Mwoalen Wahu, it is clear that the group remains in existence today, in line with the court’s previous finding in its September 28, 2016 order. Additionally, although less clear, the court sustains its finding that Iso Nahnken of Nett Salvador Iriarte has the apparent authority to bring this suit on behalf of Mwoalen Wahu.

During the January 11, 2017 hearing, the court heard testimony from the Nahnmwarki of Sokehs, who testified, based on his letter to defendant Governor Peterson, that Mwoalen Wahu Ileile en Pohnpei no longer exists because the traditional kingdoms of U, Sokehs, Kitti, Pingelap, and Sapwuafik have withdrawn from Mwoalen Wahu. He also testified based on his letter that less than all of the traditional leaders cannot constitute Mwoalen Wahu and that a decision of Mwoalen Wahu requires the consensus of the majority of the Nahnmwarki. However, only the Nahnmwarki of Sokehs signed the letter at issue here. There are no signatures by the Nahnmwarki of U, Kitti, Pingelap, or Sapwuafik indicating the intent of their respective kingdoms to withdraw from or disband Mwoalen Wahu or otherwise subscribe to the message conveyed in the letter. Despite Young Sun’s contention during oral argument that none of the paramount leaders from each of the kingdoms have disputed the dissolution of Mwoalen Wahu, the court is convinced that the testimony by the Nahnmwarki of Sokehs and the submitted letter would require the other kingdoms’ affirmative acknowledgment of Mwoalen Wahu’s dissolution, which is lacking in evidence before the court. Passive acceptance or possible ignorance of such letter on behalf of the other kingdoms’ paramount leaders, without more, is not sufficient to convince the court that a majority consensus of the paramount leaders, as a requirement for Mwoalen Wahu to act as admitted to by the testimony of Nahnmwarki of Sokehs and the letter itself, intended to withdraw from or disband Mwoalen Wahu. There has been no showing that Nahnmwarki of Sokehs has the authority to speak on behalf of kingdoms other than Sokehs.

The court’s reasoning for its conclusion is reinforced by the fact that, subsequent to the April 8, 2016 letter, the court issued and served on several Nahnmwarki an order which invited them to comment on Iso Nahnken of Nett’s representation of Mwoalen Wahu or otherwise intervene in this matter. To date, with the exception of the Nahnmwarki of Sokehs, no action has been taken to refute the existence of Mwoalen Wahu or Iso Nahnken of Nett’s authority to represent it. The court’s reasoning that Mwoalen Wahu remains in existence today is also confirmed by the attendance lists, agendas, and financial records submitted by Mwoalen Wahu and admitted into evidence by the court during the hearing. These records indicate that meetings have been held by and stipends paid for by the state of Pohnpei to members of the Mwoalen Wahu on no less than five occasions since April 8, 2016. The proposed sea cucumber harvest was on the agenda for at least one of these meetings. See Pl.’s Ex. 4 (Jan. 11, 2017). The submitted records also indicate that Nahnmwarki of Sokehs attended and was paid for at least four out of five such meetings, including the meeting during which the harvest was proposed to be discussed. These records were testified to by Mr. Billston Charley, employed by the Pohnpei State Government as a liaison specialist to Mwoalen Wahu, further indicating and confirming the continued existence of Mwoalen Wahu today. Although there is a dispute as to whether these meetings actually took place or whether the attendance list is merely those from the group who showed up to collect their stipend without actually holding a meeting, the distinction is irrelevant, given that the Pohnpei government continues to acknowledge Mwoalen Wahu’s existence by dispersing stipends to its members and maintaining the state government position of liaison specialist to Mwoalen Wahu.

Lastly, in conjunction with Iso Nahnken of Nett’s testimony at a previous hearing and the aforementioned records submitted by Mwoalen Wahu at the hearing on Young Sun’s motion to dismiss showing his attendance at every meeting since April 8, 2016, the court maintains that Mwoalen Wahu has satisfied its burden that the court has personal and subject matter jurisdiction over Mwoalen Wahu and that the Iso Nahnken of Nett is vested with the authority to bring this lawsuit on behalf of Mwoalen Wahu as it is organized today. In fact, Young Sun has previously attempted to argue that those holding traditional titles other than Nahnmwarki can be members of the Mwoalen Wahu.^[3] Notwithstanding, and without making any further rulings on the professedly elusive organizational structure of Mwoalen Wahu, there is sufficient evidence in the record to support the finding that Iso Nahnken of Nett, whether or not a traditional, honorary, de facto, or non-member of the group, has ostensible authority to represent Mwoalen Wahu.

Young Sun’s unique contentions in its Motion to Dissolve the Temporary Restraining Order are 1) that none of the edible species is part of or included in the sea cucumber harvest project and 2) that there is no good reason to prolong the temporary restraining order because there has not been a violation of custom or tradition to date. The first argument was decided against by this court in both its Order Granting Temporary Restraining Order and its Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss.

The customary right [of the members of Mwoalen Wahu] to receive offerings from their constituents and subjects . . . is imminently threatened by the defendants’ allegedly illegal conduct because it has been shown that sea cucumber declines pose an intensified threat to Pohnpei’s near shore coral-reef ecosystem and thl marife within that ehat ecosyscosystem, thereby posing an increased threat to the Mwoalen Wahu members’ rights to receive offerings from marine life that inhabit that ecosystem.

Mwoalen Wahu Ileile en Pohnpei v. Peterson, 20 FSM R. 632, 644 (Pon. 2016). In short, the fact that none of the edible species are included in the harvest’s plan does not mean that the population of such species will not be negatively affected by a harvest which is more likely than not to have an impact on the ecosystem they inhabit.

Young Sun’s second argument misinterprets the law regarding temporary restraining orders and preliminary injunctions. Actual harm need not exist in order for a temporary restraining order or prohibitory injunction to remain in place. Only an imminent threat of actual harm is required. Nena v. Saimon, 19 FSM R. 317, 329 (App. 2014) (threat of irreparable harm is a prerequisite to injunctive relief). Here, the threat to the reef ecosystem and thereby Mwoalen Wahu’s customary right to receive traditional offerings that are sustained by that ecosystem posed by the proposed sea cucumber harvest remains the same today as it did when the court first issued the temporary restraining order.

III. CONCLUSION

Young Sun’s Motion to Strike is DENIED. Young Sun’s Motion to Dismiss and Motion to Dissolve Temporary Restraining Order are hereby DENIED because the court finds that Mwoalen Wahu has satisfied its burden to establish standing and that the court has personal jurisdiction over it.

IT IS HEREBY ORDERED the hearing and determination of any subsequently filed Civil Rule 12(b) motions shall be deferred until trial unless the court otherwise determines that an immediate preliminary hearing is necessary to prevent manifest injustice. FSM Civ. R. 12(d).

IT IS FURTHER ORDERED that the hearing on Mwoalen Wahu’s application for a preliminary injunction shall be consolidated with the trial on the merits.^[4] FSM Civ. R. 65(a)(2).

IT IS FURTHER ORDERED, in a concerted effort to move this matter forward, that the parties confer and thereby submit a joint pre-trial schedule including:

1) deadline to propound discovery;
2) deadline to respond to discovery requests;
3) deadline to submit pre-trial motions;
4) deadline to submit oppositions to pre-trial motions; and
5) three proposed dates for hearing on pre-trial motions and trial, which shall be consolidated as appropriate, including an estimation of how long trial is expected to last.

The proposed joint pre-trial schedule is due no later than March 3, 2017. If mutually agreed upon dates cannot be reached, they will be set by future order of the court.

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^[1] The court feels obliged to inform the parties that the reason it was favorably disposed towards hearing Young Sun’s second motion to dismiss, despite having heard and granting in part and denying in part the previous motions to dismiss, is out of cautionary respect for the fact that "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action," FSM Civ. R. 12(h)(3), and in light of the new evidence brought to the courts attention by Young Sun’s second motion. The hearing and determination of any subsequently filed Civil Rule 12(b) motions, however, shall be deferred until the trial unless the court otherwise determines that an immediate preliminary hearing is necessary to prevent manifest injustice. FSM Civ. R. 12(d).

^[2] "The last day so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday."

^[3] In its August 2, 2016 motion to recuse, Young Sun argued that the father of the presiding judge in this matter, whom it alleged held the title of Wasahi of Sokehs, second in rank to the Nahnmwarki of Sokehs, was a member of the Mwoalen Wahu. The court, by August 3, 2016 Order Denying Defendant’s Motion to Recuse, found that only the Nahnmwarki and Nahnken are members of the Mwoalen Wahu Ileile en Pohnpei, as testified to by the Iso Nahnken of Nett at the hearing on the plaintiffs’ motion for temporary restraining order.

^[4] The court notes that it has scheduled hearings on Mwoalen Wahu’s application for a preliminary injunction several times, but has yet to successfully hold a hearing. In its July 20, 2016 Order Granting Temporary Restraining Order, the court set a hearing on the application for a preliminary injunction for August 3, 2016. Instead of holding a hearing on the application for preliminary injunction, the court heard arguments on Young Sun’s motion to recuse the presiding judge in this matter and, finding good cause, extended the temporary restraining order for seven additional days in which it set the coveted preliminary injunction hearing for August 9, 2016. At the outset of the August 9, 2016 hearing, the defendants moved the court for an enlargement of time, to which the plaintiffs agreed on the condition that the temporary restraining order be extended to cover the time sought to be enlarged. The defendants stipulated to an extension of the temporary restraining order and the court set the preliminary injunction hearing for August 23, 2016. Another motion to recuse was filed and in lieu of holding the preliminary injunction hearing, the court heard arguments on that motion. The defendants moved the court to stay further proceedings on the hearing for plaintiffs’ motion for a preliminary injunction and further stipulated to extend the temporary restraining order until the pending motions were ruled upon by the court. The defendants have stipulated to the extension of the temporary restraining order several times, thereby effectively converting it into a preliminary injunction. See Nena v. Saimon, 19 FSM R. 317, 325 (App. 2014) (where the parties stipulate to an extension of time of a temporary restraining order, they have actually consented to a preliminary injunction). Therefore, in light of the posture of this matter, consolidation with the trial on the merits is appropriate.