Helgenberger v Ramp & Mida Law Firm [2018] FMSC 32; 22 FSM R. 4 (Pon. 2018) (3 August 2018)

FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2017-051

DERRICK HELGENBERGER and ESTATE OF
BERNARD HELGENBERGER,
Plaintiffs,

vs.

RAMP & MIDA LAW FIRM, FREDRICK L.
RAMP, BANK OF THE FSM, DELSON
EHMES, JR., BERNIE HELGENBERGER, and
ROCKSON HELGENBERGER,
Defendants.
__________________________________________

ORDER DISMISSING CASE

Larry Wentworth
Associate Justice

Hearing: April 12, 2018
Decided: August 3, 2018

APPEARANCES:

For the Plaintiff: Joseph S. Phillip, Esq.
P.O. Box 464
Kolonia, Pohnpei FM 96941

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

For the Defendants (Bank of FSM & Ehmes): Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Domestic Relations - Probate
A temporary co-administrator’s powers include only those powers specifically expressed in the order of appointment and as may be expressed in the appointing court’s subsequent orders. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 9 (Pon. 2018).

Civil Procedure - Parties; Constitutional Law - Case or Dispute - Standing; Domestic Relations - Probate
When no particular powers were expressed in an administrator’s temporary appointment, although he was expected to help resolve the "overlappings" between two estates, and when the subsequent order granted extensive powers to the co-administrators without making any distinction between the two full co-administrators and the temporary one, the court must, solely for the purpose of the pending motions, take as true the temporary administrator’s assertion that he remains the estate’s co-administrator and assume that since his administrator’s powers were not otherwise limited, he has the power to sue on the estate’s behalf to preserve the estate’s assets. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 9 (Pon. 2018).

Civil Procedure - Dismissal - Before Responsive Pleading
A court should not grant a motion to dismiss unless it appears to a certainty that no relief could be granted under any state of facts that can be proven in support of the claim. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 10 (Pon. 2018).

Constitutional Law - Case or Dispute - Ripeness
For the FSM Supreme Court to exercise its jurisdiction, the issue raised must be ripe for adjudication. Ripeness is a threshold issue. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 10 (Pon. 2018).

Constitutional Law - Case or Dispute - Ripeness
A matter is ripe when there is an actual, present dispute not merely a hypothetical or speculative conflict. A matter must be ripe for adjudication for there to be a case or dispute over which the court can exercise jurisdiction. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 10 (Pon. 2018).

Contempt - Criminal
No one can be held in criminal contempt by the Pohnpei Supreme Court when the time is long past since the Pohnpei statute requires that a criminal contempt be charged within three months of the contempt. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 11 (Pon. 2018).

Constitutional Law - Case or Dispute - Ripeness
When, to whatever extent the plaintiff’s claim is based on any defendant’s alleged failure to comply with Pohnpei Supreme Court orders, the claim is not ripe for adjudication because the Pohnpei Supreme Court has not yet ruled whether the defendant was within its rights to take the action it did. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 11 (Pon. 2018).

Constitutional Law - Due Process
The constitutional guarantee of due process only protects persons from the governments, and those acting under them, established or recognized by the Constitution. The due process guarantee does not apply to the actions of private parties. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 11 (Pon. 2018).

Civil Procedure - Dismissal - Before Responsive Pleading; Civil Rights - Acts Violating; Constitutional Law - Due Process
When a civil rights claim neither alleges that the actions were pursuant to governmental policy or custom, nor that the actions were taken by officials responsible for final policy-making, it fails to state a claim upon which relief may be granted and will be dismissed because the plaintiffs fail to state a claim that their civil right to due process was violated. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 11 (Pon. 2018).

Civil Rights - Acts Violating
A private person can be liable for a civil rights violation and a private cause of action is provided for that violation when that private person commits an offense by willfully, whether or not acting under color of law, depriving another of, or injuring, oppressing, threatening, or intimidating another in the free exercise or enjoyment of any right, privilege, or immunity secured to him by the FSM Constitution or laws. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 11 (Pon. 2018).

Civil Procedure - Dismissal - Before Responsive Pleading; Civil Rights - Acts Violating
When there is no allegation that any defendant deprived either plaintiff of, or injured, oppressed, threatened, or intimidated either plaintiff in the free exercise or enjoyment of any right, privilege, or immunity secured to them by the FSM Constitution or laws, the plaintiffs fail to state a claim that their civil rights were violated. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 11 (Pon. 2018).

Courts; Torts - Fraud
Fraud upon the court is the most egregious misconduct directed to the court itself, such as bribery of a judge or fabrication of evidence by counsel, which must be supported by clear, unequivocal and convincing evidence. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 12 (Pon. 2018).

Torts - Fraud
An unsuccessful legal maneuver based on an incorrect, but colorable, legal argument cannot rise to the level of a fraud upon the court. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 12 (Pon. 2018).

Attorney and Client; Torts - Fraud
A lawyer’s incorrect legal argument does not, by itself, constitute a fraud upon the court since an attorney is to be expected to responsibly present his client’s case in the light most favorable to his client. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 12 (Pon. 2018).

Statute of Limitations - Which Limitation Applies
When most of the plaintiffs’ claims are for events that occurred in 2001, 2003, or 2004, and when none of the claims are for the recovery of an interest in land or are an action on a judgment, which are the only causes of action for which the statute of limitations is twenty years, then the statute of limitations for the plaintiffs’ claims cannot exceed the six years of the catchall statute, which claims are thus barred by the statute of limitations. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 12 (Pon. 2018).

Civil Procedure - Dismissal - Before Responsive Pleading; Statute of Limitations
When the allegations of the plaintiff’s own complaint demonstrate that its claims are subject to the statute of limitations defense, the court may dismiss those claims on the statute of limitations ground, even though it is an affirmative defense. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 12 (Pon. 2018).

Civil Procedure; Courts; Jurisdiction
The general rule is that the lawsuit filed first has priority over any other case involving the same parties and issues, even if filed later before a court that could also take jurisdiction. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 12 (Pon. 2018).

Courts; Domestic Relations - Probate; Jurisdiction
When the Pohnpei state probate case was the first filed lawsuit and that case can afford a complete resolution of the issues between the parties; when the later-filed FSM Supreme Court case could, at best, afford only a partial resolution and certainly lacks jurisdiction to enforce a state court interlocutory order; and when the Pohnpei Supreme Court is perfectly competent to enforce its own orders and judgments and to take any further needed steps in the probate case pending before it, it is appropriate that that forum resolve the issues. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 13 (Pon. 2018).

Domestic Relations - Probate
State courts should normally handle probate and inheritance matters. Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 13 (Pon. 2018).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

The court, on April 12, 2018, heard: 1) Defendant Ramp & Mida, Bernie Helgenberger and Rockson Helgenberger’s Motion to Dismiss, filed September 18, 2017; 2) and 3) the plaintiffs’ two oppositions, filed September 27 and 28, 2017; 4) the Bank of the FSM’s Motion to Dismiss or in the Alternative Motion for Summary Judgment, filed October 16, 2017; 5) Opposition to Bank of the FSM Motion to Dismiss and Opposition to Alternative Motion for Summary Judgment, filed November 15, 2017; 6) Reply Supporting Motion to Dismiss or in the Alternative Motion for Summary Judgment, filed November 20, 2017; and 7) Defendant Fredrick L. Ramp’s Motion to Dismiss, filed March 8, 2018. The motions to dismiss are granted. The reasons follow.

I. BACKGROUND

Bernard Helgenberger was a Pohnpeian businessman. In 1999, he had three loans from the Bank of the FSM - a $375,000 five-year note (June 25, 1999); a $150,000 two-year note (June 25, 1999); and a 1½-year note for $51,913 (Sept. 29, 1999). The security for these notes was a $400,000 time certificate of deposit held by the bank. When payments on these notes became delinquent, the bank, with Bernard Helgenberger’s acquiescence, began making the payments from the certificate of deposit funds.^[1] The $150,000 note was paid off on January 31, 2001. The $51,913 note was paid off on April 30, 2001.

Bernard Helgenberger died intestate on August 21, 2001. On September 3, 2001, a probate case for Bernard Helgenberger was filed in the Pohnpei Supreme Court. That court, on September 7, 2001, appointed Bellarmine Helgenberger as the estate’s temporary administrator.

On October 23, 2001, the bank, using the security agreement that Bernard Helgenberger had executed June 25, 1999, liquidated the time certificate of deposit and applied what was left in it - $215,550.91 - to the outstanding loan. That left a $20,703.50 balance still owed to the bank.^[2]

On November 28, 2001, the Pohnpei Supreme Court appointed Bellarmine Helgenberger as the permanent administrator of Bernard Helgenberger’s estate, and ordered him to take custody of the estate’s assets and settle claims. On February 10, 2003, the Pohnpei Supreme Court issued an order that stated that during its February 7, 2003 hearing

it was represented that the Bank of the Federated States of Micronesia had, after commencement of this action to probate the estate of deceased Bernard Helgenberger, and public notice made, disbursed certain assets of the estate, being a time deposit used as collateral for certain loan obtained by the deceased from the Bank alleged to be in the amount of $300,000. The Bank had not filed a claim in this Court against the estate in this action, and is therefore not a known party.

In re Estate of Helgenberger, Civ. No. 180-01, Order at 1 (Feb. 10, 2003). It ordered the bank to "reinstate that certain asset to the estate of Bernard Helgenberger, or . . . to showe whysreinstatementement should not be made." Id. at 1-2. Instead, the bank removed the part of the probate case involving it, to the FSM Supreme Court, which, on May 23, 2003, remanded it as improvidently removed. In re Estate of Helgenberger, 11 FSM R. 599, 600 (Pon. 2003).

Then, on August 13, 2004, the Pohnpei Supreme Court ordered the bank "to reimburse to the estate of Bernard Helgenberger, that amount of $300,000 . . . or . . . show cause whh fund shoulshould not be reimbursed and why the Bank should not be held in contempt for tampering with an asset of a te pe befohe Po Supreme] Court." In re Estate of Helgenberger, Civ. Civ. No. 1No. 180-0180-01, Ord, Order at 1-2 (Aug. 13, 2004). In response, the bank filed a twenty-six page memorandum, setting forth why the fund should not be "reimbursed," and why the bank should not be held in contempt. The memorandum was supported by a ten-page affidavit and voluminous exhibits detailing the history of the Bernard Helgenberger loans. The Pohnpei Supreme Court issued no further orders addressed to the bank or concerning Bernard Helgenberger’s Bank of the FSM time certificate of deposit.

Bellarmine Helgenberger died on September 27, 2015. On May 13, 2016, the Pohnpei Supreme Court appointed new administrators for Bernard Helgenberger’s estate. The appointment order provided that: "All three petitioners are appointed administrators of the estate with Bernie and Rockson Helgenberger acting as full administrators and Derrick Helgenberger to serve as temporary administrator until the following issues are resolved:" In re Estate of Helgenberger, Civ. No. 180-01, Order of Probate and Appointment of New Adm’rs at 2 (May 13, 2016). The court described the issues needing resolution as "[c]larifying and identifying the overlapping assets" of the Bernard Helgenberger and Bellarmine Helgenberger estates and "[c]larifying and identifying the overlapping lawsuits involving both estates." Id. at 2-3. The new administrators were instructed to resolve those issues within 90 days. Id. at 3. The court order further stated that "Derrick Helgenberger’s role as co-administrator in the Bernard’s estate cases will cease after the 90 days, unless the two issues are not resolve[d]." Id.

On May 25, 2016, the Pohnpei probate court issued a supplemental order requiring the co-administrators to take custody, settle, and manage Bernard Helgenberger’s estate; assess and satisfy any claims against the estate; settle undisputed claims without further court order; and establish a bank account in the name of the Estate of Bernard Helgenberger, into which all estate funds and income were to be deposited. In re Estate of Helgenberger, Civ. No. 180-01, Supp. to Order of Probate and Appointment of New Adm’rs at 1-2 (May 25, 2016). This order did not differentiate between the full and temporary co-administrators.

On August 21, 2017, counsel for co-administrator Derrick Helgenberger filed, in the probate case, a motion to remove Bernie and Rockson Helgenberger as co-administrators, alleging that they had breached their fiduciary duty. Then, on August 25, 2017, Derrick Helgenberger’s counsel filed another motion in the probate case asking that both the Bank of the FSM and the Ramp & Mida Law Firm be ordered to show cause why they should not be held in contempt for the bank’s alleged failure to comply with the probate court’s February 10, 2003 order. These two motions have not been decided.

Also on August 25, 2017, Derrick Helgenberger filed this FSM Supreme Court lawsuit against the Ramp & Mida Law Firm, Fredrick L. Ramp (a former principal of that law firm), the Bank of the FSM, Delson Ehmes, Jr. (a bank officer), Bernie Helgenberger, and Rockson Helgenberger. Derrick Helgenberger asserts that, as an administrator of the Bernard Helgenberger estate, he can sue on its behalf. He alleges that the bank and the law firm colluded to deprive the estate of an asset - a $400,000^[3] time certificate of deposit - and that this collusion violated the estate’s civil rights and right to due process. He also alleges that Bernie and Rockson Helgenberger have, contrary to the Pohnpei probate court’s order, opened two separate bank accounts into which the estate’s rental incomes are deposited; that they have mismanaged the estate; and that they have, without court approval, distributed estate assets to some heirs, but not to others.

All defendants have moved to dismiss the complaint on one or more grounds. These will be taken in turn.

II. CO-ADMINISTRATOR DERRICK HELGENBERGER’S STANDING

The defendants first contend that Derrick Helgenberger does not have standing - does not have the authority to sue on the Bernard Helgenberger estate’s behalf - because his was only a temporary, ninety-day appointment, and those ninety days are up. That may be true, however, the Pohnpei probate court’s appointment order had an alternative measure of the temporary time period - that Derrick Helgenberger’s temporary appointment would expire only once "overlapping" issues between the two Helgenberger estates were resolved. Nothing in the record suggests when, or if, that has occurred.

A temporary co-administrator’s powers include only those powers specifically expressed in the order of appointment and as may be expressed in the appointing court’s subsequent orders. Rosemont Enterprises, Inc. v. Lummis, 596 S.W.2d 916, 923 (Tex. Civ. App. 1980). No particular powers were expressed in Derrick Helgenberger’s temporary appointment, although he was expected to help resolve the "overlappings" between the two Helgenberger estates, and the subsequent order granted extensive powers to the "co-administrators" without making any distinction between the two full co-administrators and the temporary one.

Therefore, solely for the purpose of the pending motions, the court must take as true Derrick Helgenberger’s assertion that he remains a co-administrator of Bernard Helgenberger’s estate and assume that since his administrator’s powers were not otherwise limited, he has the power to sue on the estate’s behalf to preserve the estate’s assets. The court thus will not, at this stage, dismiss this case for lack of standing.

III. ANALYSIS

A. Parties’ Positions

The bank and its officer Delson Ehmes, Jr. seek dismissal because the Bernard Helgenberger probate case is still pending in the Pohnpei Supreme Court; because the status of that court’s 2004 order that the bank show cause why it should not be held in contempt is unclear, although that order is clearly not final; because this court cannot enforce another court’s order, particularly an interlocutory one; because this court lacks subject-matter jurisdiction since there is no case or dispute as the matter is not ripe for adjudication and as the complaint’s allegations do not constitute a civil rights or due process claim; and because contempt of court cannot give rise to a private cause of action. In the alternative, they seek summary judgment in their favor on these issues.

The other defendants (Ramp & Mida, Bernie Helgenberger and Rockson Helgenberger, joined by Fredrick L. Ramp) ask that this case be dismissed because the plaintiffs’ claims are already under the Pohnpei Supreme Court’s jurisdiction; because state courts, rather than the national court, should normally resolve probate and inheritance issues; because the plaintiffs fail to state a claim for which relief can be granted since the statute of limitations or laches bars any claims for the bank’s or the law firm’s actions in 2001, 2003, or 2004; and because this lawsuit is just an attempt by the temporary co-administrator to maintain his administrator status by being involved in or pursuing estate litigation.

The plaintiffs’ two oppositions to these defendants’ motion to dismiss were mostly the plaintiffs’ motion(s) to strike that defense motion and to disqualify the Ramp & Mida Law Firm.^[4] The court has, by previous order, rejected those contentions. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 449 (Pon. 2018). The plaintiffs’ remaining ground to oppose this motion is their assertion that their pleading states a claim for relief because the defendants’ failure to reinstate the $400,000 was a tampering with the estate funds that violated their constitutional right to due process and their civil rights.

The plaintiffs oppose the bank’s motion to dismiss because, in their view, the bank’s 2003 attempted removal to the FSM Supreme Court was a fraud upon the court; because the bank’s handling of the certificate of deposit was a fraudulent transaction; and because they are not trying to enforce another court’s order in this court, but instead are seeking damages for civil rights and due process violations, fraudulent banking transactions, and fraud upon the court. They also assert that the Pohnpei probate court orders’ lack of finality are irrelevant to their claims in this case since they are seeking damages for the defendants’ wrongful acts and they are not trying to make a private action out of a contempt of court as this court has not made any finding of contempt.

The plaintiffs correctly note that a court should not grant a motion to dismiss unless it appears to a certainty that no relief could be granted under any state of facts that can be proven in support of the claim. Nahnken of Nett v. United States, 7 FSM R. 581, 586 (App. 1996).

B. Ripeness

Ripeness is a threshold issue. Sipos v. Crabtree, 13 FSM R. 355, 362 (Pon. 2005). For the FSM Supreme Court to exercise its jurisdiction, the issue raised must be ripe for adjudication. Kallop v. Pohnpei, 18 FSM R. 130, 133 (Pon. 2011). A matter is ripe when there is an actual, present dispute not merely a hypothetical or speculative conflict. Id. A matter must be ripe for adjudication for there to be a case or dispute over which the court can exercise jurisdiction. Sipos, 13 FSM R. at 366.

Although the issue has been before it, the Pohnpei Supreme Court has not ruled whether the bank was within its rights to liquidate Bernard Helgenberger’s time certificate of deposit. Although the plaintiffs now contend that whether the bank is held in contempt in that case has no bearing on the case’s outcome, it seems to this court that a Pohnpei Supreme Court final decision would act as an estoppel against the plaintiffs’ claims in this case if that court were to rule in the bank’s favor, or, if the Pohnpei probate court were to rule along the lines that the plaintiffs suggest is proper, it would act to estop the bank’s defenses in this case.

The parties agree that the status of the order to show cause why the bank should not be held in contempt is unclear. But it is clear that no one can be held in criminal contempt because the statute requires that a criminal contempt "be charged within three months of the contempt," 4 Pon. C. § 2-106(2)(b), and that ts lois long past. It may be that the Pohnpei probate court took no further action about the certificate of deposit after the bank filed its lengthy September 2esponse, because the probate court was satisfied that the bthe bank had shown cause why it should not be held in contempt. That is a logical conclusion since the Pohnpei probate court has not, as required by the civil contempt statute, 4 Pon. C. § 2-)(a), given the bank noti notice of any civil contempt charges and an opportunity to present a defense and mitigation. But, it no means the only possible conclusion.

Thus, to whatever extent it is based oned on any defendant’s alleged failure to comply with Pohnpei Supreme Court orders, this action is not yet ripe for adjudication. The plaintiffs, however, now state that the lack of finality of the Pohnpei Supreme Court orders "has nothing to do with the claims in this suit." Opp’n to Bank of the FSM Mot. to Dismiss & Opp’n to Alternative Mot. for Summ. J. at 18 (Nov. 15, 2017). They assert that the court has jurisdiction because of "violation of due process and civil right, the unlawful liquidation of financial assets of the estate, abused [sic] of financial assets of the estate and fraud upon the FSM Court." Id.

C. Due Process and Civil Rights Claim

The plaintiffs assert that the defendants, who are all undisputedly private parties, violated the plaintiffs’ right to due process and their civil rights in general. The court must reject this contention.

"The constitutional guarantee of due process only protects persons from the governments, and those acting under them, established or recognized by the Constitution." Semwen v. Seaward Holdings, Micronesia, 7 FSM R. 111, 113 (Chk. 1995). The due process guarantee does not apply to the actions of private parties. When a civil rights claim neither alleges that the actions were pursuant to governmental policy or custom, nor that the actions were taken by officials responsible for final policy-making, it fails to state a claim upon which relief may be granted and will be dismissed. FSM v. GMP Hawaii, Inc., 16 FSM R. 479, 484 (Pon. 2009). Accordingly, the plaintiffs fail to state a claim that their civil right to due process was violated.

A private person can be liable for a civil rights violation and a private cause of action is provided for that violation when that private person commits an offense by willfully, whether or not acting under color of law, depriving another of, or injuring, oppressing, threatening, or intimidating another in the free exercise or enjoyment of any right, privilege, or immunity secured to him by the FSM Constitution or laws. Hauk v. Emilio, 15 FSM R. 476, 479 (Chk. 2008) (construing 11 F.S.M.C. 701(3)). There is no allegation that any defendant deprived either plaintiff of, or injured, oppressed, threatened, or intimidated either plaintiff in the free exercise or enjoyment of any right, privilege, or immunity secured to them by the FSM Constitution or laws. Accordingly, the plaintiffs fail to state a claim that their civil rights were violated.

The court therefore concludes that the plaintiffs’ allegations do not state a due process or a civil rights cause of action, and that the plaintiffs cannot prevail on these claims. But even without a civil rights cause of action, the plaintiffs could still assert that this court can exercise jurisdiction over any state law tort claims because of the parties’ diversity of citizenship.

D. Allegations of Fraud upon the Court

The plaintiffs contend that the defendant bank and defendant law firm committed fraud upon the FSM court when they removed (or rather tried to remove) the Bernard Helgenberger probate case (or part thereof) to the FSM Supreme Court. "Fraud upon the court is defined as the most egregious misconduct directed to the court itself, such as bribery of a judge or fabrication of evidence by counsel, which must be supported by clear, unequivocal and convincing evidence." Arthur v. Pohnpei, 16 FSM R. 581, 600 n.14 (Pon. 2009) (citing Ramp v. Ramp, 11 FSM R. 630, 636 (Pon. 2003)).

The 2003 removal to the FSM Supreme Court was, at its worst, an unsuccessful legal maneuver based on an incorrect, but colorable, legal argument. As such, it cannot rise to the level of a fraud upon the court. A lawyer’s incorrect legal argument does not, by itself, constitute a fraud upon the court. "An attorney is to be expected to responsibly present his client’s case in the light most favorable to his client." Kerwit Med. Prods., Inc. v. N&H Instruments, Inc., [1980] USCA5 962; 616 F.2d 833, 837 (5th Cir. 1980) (where parties settled and consented to a judgment, it was not fraud on the court for attorney to not suggest to court or opposing counsel that there were facts which opposing side could use to fashion a defense). Accordingly, the plaintiffs fail to state a claim that they were victims of fraud upon the court.

E. Statute of Limitations

Most of the plaintiffs’ claims are for events that occurred in 2001 (the alleged fraudulent transfer when the bank liquidated the certificate of deposit), 2003 (failure to reinstate the certificate and removal of case to FSM court), or 2004 (failure to reinstate certificate). Since none of the claims are for the recovery of an interest in land or are an action on a judgment, which are the only causes of action for which the statute of limitations is twenty years, 6 F.S.M.C. 802(1), then the statute of limitations for the plaintiffs’ claims cannot exceed the six years of the catchall statute, 6 F.S.M.C. 805. When the allegations of the plaintiff’s own complaint demonstrate that its claims are subject to the statute of limitations defense, the court may dismiss those claims on the statute of limitations ground, even though it is an affirmative defense. Tilfas v. Kosrae, 21 FSM R. 81, 87 (App. 2016); Palikkun v. FSM Social Sec. Admin., 19 FSM R. 314, 317 (Kos. 2014).

Accordingly, except for the claims about the co-administrators’ performance handling the Bernard Helgenberger estate since their appointment in 2016 (and any alleged "collusion" by them with any other defendant), the statute of limitations bars the plaintiffs’ claims. Those claims are accordingly dismissed.

F. Proper Forum

But even for those claims - those arising since the co-administrators’ appointment by the Pohnpei Supreme Court, the court concludes that the FSM Supreme Court is not the proper forum.

The general rule is that the lawsuit filed first has priority over "any other case involving the same parties and issues, even if filed later before a court that could also take jurisdiction." Election Comm’r v. Petewon[1994] FMCSC 2; , 6 FSM Intrm. 491, 498 (Chk. S. Ct. App. 1994). The rule, however, is not absolute, but is a principle of sound judicial administration that the first-filed suit should have priority absent special circumstances. Kahn v. General Motors Corp., [1989] USCAFED 648; 889 F.2d 1078, 1081 (Fed. Cir. 1989). . . .

. . . .

The Kahn court recognized several situations where the first suit should be stayed or restrained in favor of a later suit. 889 F.2d at 1081. These included where it would prevent a wrong or injustice; where forum shopping alone motivated the choice of venue for the first suit; and where what it called a customer action suit was the first-filed suit. Id.

Mori v. Hasiguchi, 16 FSM R. 382, 384-85 (Chk. 2009) (footnote omitted). The Pohnpei probate case was the first filed lawsuit. That case can afford a complete resolution of the issues between the parties. This case could, at best, afford only a partial resolution. Moreover, if this were an action to enforce a Pohnpei state court judgment, that judgment would not be enforceable in the FSM Supreme Court as a civil rights action. See Stephen v. Chuuk, 17 FSM R. 453, 463 (App. 2011) (state court judgment is not a property right which affords judgment-creditors due process rights under the national Constitution). And, if this court lacks jurisdiction to enforce a state court judgment, it certainly lacks jurisdiction to enforce a state court interlocutory order.

The Pohnpei Supreme Court is perfectly competent to enforce its own orders and judgments and to take any further needed steps in a probate case pending before it. It is appropriate that that forum resolve these issues since state courts should normally handle probate and inheritance matters. In re Nahnsen, 1 FSM R. 97, 97 (Pon. 1982).

G. Observation and Summary

The court has one last observation. The plaintiffs’ pursuit of this claim is somewhat puzzling because if they succeed in obtaining "reinstatement" of the time certificate of deposit, it would seem that, as a matter of equity, the probate court would then permit the Bank of the FSM to amend its claim against the estate to include Bernard Helgenberger’s full indebtedness to it, and, with the further interest accruing on the outstanding loan(s), the amount now owed to the bank would likely be greater then any amount "reinstated" and would further deplete Bernard Helgenberger’s estate.

In summary, the court, for the purpose of the pending motions, acknowledges the authority of Derrick Helgenberger, as a co-administrator, to file suit on behalf of the Bernard Helgenberger estate. Nevertheless, the court grants the defendants’ motions to dismiss because to the extent it may be based on orders of the Pohnpei Supreme Court in PCA No. 180-01, this case is not yet ripe. And, to the extent that this case is not based on the Pohnpei Supreme Court orders, this case is dismissed because it does not state a claim for due process violations or civil rights violations, or fraud upon the court; because the claims are otherwise barred by the statute of limitations; and because whatever part is not barred by the statute of limitations is properly handled by the Pohnpei Supreme Court and not this court.

IV. CONCLUSION

Accordingly, for the aforementioned reasons, this case is dismissed without prejudice to any further Pohnpei Supreme Court action.

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^[1] The time certificate of deposit had a thirty-day term. Whenever the term was up, the bank would add the interest, and then often deduct the loan payments that were due, and then renew the certificate for another thirty days.

^[2] On February 4, 2004, the Bank of the FSM filed suit in the FSM Supreme Court against Bernard Helgenberger’s estate seeking a judgment for this deficiency. Judgment was entered on August 25, 2004, in the amount of $22,493.59 (for the unpaid principal plus interest), which is now a claim against Bernard Helgenberger’s estate.

^[3] The figure used by the Pohnpei Supreme Court in its orders was $300,000. The current claim for this larger sum is unexplained.

^[4] These motions to strike and to disqualify were the bulk of the content of documents 2) and 3) listed in the opening paragraph of this order.