Hartmann v Department of Justice [2018] FMSC 8; 21 FSM R. 468 (Chk. 2018) (29 March 2018)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2016-1001

FRITZ EDWARD HARTMANN, )
)
Petitioner, )
)
vs. )
)
DEPARTMENT OF JUSTICE, FEDERATED )
STATES OF MICRONESIA, )
)
Respondent. )
__________________________________________ )

ORDER

Dennis K. Yamase
Chief Justice

Decided: March 29, 2018

APPEARANCES:

For the Plaintiff: Salomon M. Saimon, Esq.
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Defendant: Craig D. Reffner, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

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HEADNOTES

Civil Procedure Motions; Civil Procedure Pleadings Striking Pleadings
A motion to strike a memorandum supporting an opposition is not a Rule 12(f) motion to strike matter from pleadings, but rather falls under the general motion practice of Rule 7(b), which provides that an application to the court for an order shall be by motion and shall set forth the relief or order sought. Hartmann v. Department of Justice, 21 FSM R. 468, 472 n.1 (Chk. 2018).

Civil Procedure Pleadings
The only pleadings allowed are set forth in Civil Procedure Rule 7(a). Hartmann v. Department of Justice, 21 FSM R. 468, 472 n.1 (Chk. 2018).

Civil Procedure Service
The court’s rules do not allow for service by e-mail. Hartmann v. Department of Justice, 21 FSM R. 468, 472 (Chk. 2018).

Civil Procedure Service
Although a court must rely on a certificate of service attached to a filing and presume that it is correct, such a presumption may be rebutted by admissible evidence that a party was never properly served. Hartmann v. Department of Justice, 21 FSM R. 468, 472 (Chk. 2018).

Civil Procedure Motions For Enlargement; Civil Procedure Motions Unopposed
When no reason is provided for late filing and an enlargement of time is never sought, responsive papers may be stricken from the record as untimely and the motion considered unopposed. However, when the party has not moved for an enlargement of time, but has provided legitimate reasons for the delay in filing its opposition and when no reason was provided showing that the court’s consideration of the untimely opposition would prejudice the movant at all, and because the opponent’s reasons would constitute excusable neglect, the motion to strike will be denied. Hartmann v. Department of Justice, 21 FSM R. 468, 472-73 (Chk. 2018).

Civil Procedure Venue
Under the venue statute, 6 F.S.M.C. 301(1), the FSM Department of Justice is a defendant that is "found" or "present" in Chuuk and in Pohnpei where it also maintains a physical office. Hartmann v. Department of Justice, 21 FSM R. 468, 473 (Chk. 2018).

Civil Procedure Venue
6 F.S.M.C. 304(3) allows part or all of a case to be heard in a state other than the one in which it was brought if the interests of justice will be served thereby. Hartmann v. Department of Justice, 21 FSM R. 468, 473 (Chk. 2018).

Civil Procedure Venue
The defendant FSM national government’s financial savings and a speculative potential for a more expeditious disposal of the matter are not sufficient reasons showing that the interests of justice will be served by granting the plaintiff’s motion to change the venue from Chuuk to Pohnpei. Hartmann v. Department of Justice, 21 FSM R. 468, 473 (Chk. 2018).

Civil Procedure Motions For Reconsideration; Judgments Relief from Judgment
When there is no final judgment but only an interlocutory order, a motion for relief from the interlocutory order will properly be characterized, not as one for relief from judgment under Rule 60(b), but as one to reconsider an interlocutory order under Rule 54(b). Hartmann v. Department of Justice, 21 FSM R. 468, 474 (Chk. 2018).

Civil Procedure Motions For Reconsideration; Civil Procedure Summary Judgment; Judgments Final Judgment
When, in a partial summary judgment, the court did not make an express determination that there is no just reason for delay and direct the entry of a judgment, that order is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of the parties and cannot be a final judgment. Hartmann v. Department of Justice, 21 FSM R. 468, 474 (Chk. 2018).

Civil Procedure Motions For Reconsideration; Civil Procedure Summary Judgment; Judgments Relief from Judgment
When there is no final judgment in the matter but only an interlocutory order, a party’s motion for relief from the interlocutory order is properly characterized, not as one for relief from judgment under Rule 60(b), but as one to reconsider, under Rule 54(b), the interlocutory order granting partial summary judgment. Hartmann v. Department of Justice, 21 FSM R. 468, 474 (Chk. 2018).

Citizenship
A person’s own admission that he has not formally renounced his claim to United States citizenship and that he does not wish to do so even now, that person, pursuant to the Constitution, would not be recognized as a citizen, but only a national, of the FSM. Hartmann v. Department of Justice, 21 FSM R. 468, 475 (Chk. 2018).

Citizenship; Constitutional Law Interpretation Whether Self-Executing
Article III, sections 1 and 2 of the FSM Constitution are self-executing and do not contemplate, or imply the need for, court action to confirm citizenship where no challenge exists. Hartmann v. Department of Justice, 21 FSM R. 468, 475 (Chk. 2018).

Constitutional Law Interpretation Whether Self-Executing
A constitutional provision is self-executing when no legislation is required to bring it into effect and when there is no indication that legislation is contemplated in order to render it operative. Hartmann v. Department of Justice, 21 FSM R. 468, 475 (Chk. 2018).

Constitutional Law Interpretation Whether Self-Executing
Constitutional provisions are self-executing if they supply a sufficient rule for their implementation, or when there is a manifest intention that they should go into immediate effect, and no ancillary legislation is necessary to the enjoyment of a right given, or the enforcement of a duty imposed. Hartmann v. Department of Justice, 21 FSM R. 468, 475 (Chk. 2018).

Constitutional Law Interpretation Whether Self-Executing
While a self-executing provision does not require any legislation to render it operative, minor details may be left for the legislature without impairing the constitutional provision’s self-executing nature. Hartmann v. Department of Justice, 21 FSM R. 468, 475 (Chk. 2018).

Constitutional Law Interpretation Whether Self-Executing
That a right granted, or duty imposed, by a constitutional provision may be better or further protected by supplementary legislation does not of itself prevent that provision from being self-executing. Hartmann v. Department of Justice, 21 FSM R. 468, 475-76 (Chk. 2018).

Constitutional Law Interpretation Whether Self-Executing
A constitutional provision’s self-executing character does not necessarily preclude legislation for the better protection of the right secured or legislation in furtherance of the provision’s purposes, or of its enforcement. Hartmann v. Department of Justice, 21 FSM R. 468, 476 (Chk. 2018).

Constitutional Law Interpretation Whether Self-Executing
Constitutional provisions are not self-executing if they merely indicate a line of policy or principle, without supplying the means by which such policy or principles are to be carried into effect, or if the language of the constitution is directed to the legislature, or if it appears from the language used and the circumstances of its adoption that subsequent legislation was contemplated to carry it into effect. Hartmann v. Department of Justice, 21 FSM R. 468, 476 (Chk. 2018).

Constitutional Law Interpretation Whether Self-Executing
Whether a constitutional provision is self-executing is ultimately a question of the intention of the constitution’s framers, and, in order to determine the intent, the general rule is that courts will consider the language used, the objects to be accomplished by the provision, and the surrounding circumstances. Hartmann v. Department of Justice, 21 FSM R. 468, 476 (Chk. 2018).

Constitutional Law Interpretation Whether Self-Executing
Constitutional provisions are presumed to be self-executing and are construed as such, rather than as requiring further legislation, unless the contrary clearly appears. Hartmann v. Department of Justice, 21 FSM R. 468, 476 (Chk. 2018).

Constitutional Law Interpretation Whether Self-Executing
A constitutional provision is self-executing insofar as it is susceptible of execution without supplemental legislation. Hartmann v. Department of Justice, 21 FSM R. 468, 476 (Chk. 2018).

Constitutional Law Interpretation Whether Self-Executing
Where a constitution asserts a certain right, or lays down a certain principle of law or procedure, it speaks for the entire people as their supreme law, and is full authority for all that is done in pursuance of its provision. In short, if complete in itself, it executes itself. Hartmann v. Department of Justice, 21 FSM R. 468, 476 (Chk. 2018).

Citizenship
Within three years of his eighteenth birthday, an FSM citizen, who is also a citizen of another nation, must register his intent to remain an FSM citizen and must renounce his citizenship of another nation. Failure to comply with these requirements means that the person automatically, by operation of constitutional law, becomes a national of the FSM. Hartmann v. Department of Justice, 21 FSM R. 468, 476 (Chk. 2018).

Administrative Law Rules and Regulations; Citizenship
Regulations may provide convenient remedies for the protection of the right secured and regulating the claim of citizenship so that its exact limits may be better known and understood, but any such legislation or regulation must be subordinate to the constitutional provision and in furtherance of its purpose, and must not, in any particular, attempt to narrow or embarrass it. Hartmann v. Department of Justice, 21 FSM R. 468, 476 (Chk. 2018).

Administrative Law Rules and Regulations; Constitutional Law Interpretation Whether Self-Executing
Supplemental legislation, and any lack of regulations promulgated thereunder, cannot supplant the FSM Constitution’s clear mandate. Hartmann v. Department of Justice, 21 FSM R. 468, 476 (Chk. 2018).

Citizenship; Constitutional Law Interpretation Whether Self-Executing
Article III, section 3 of the FSM Constitution is self-executing in that it can be given effect without the aid of legislation and there is nothing to indicate that legislation is intended to make it operative. Hartmann v. Department of Justice, 21 FSM R. 468, 476-77 (Chk. 2018).

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COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

I. BACKGROUND

On September 19, 2016, the Court granted the Government’s summary judgment motion in part, dismissing petitioner Hartmann’s claim for a declaratory judgment that he is an FSM citizen and denying the Government’s summary judgment motion on the issue of whether Hartmann, as an FSM National, cannot have his passport renewed. [Hartmann v. Department of Justice, 20 FSM R. 619 (Chk. 2016).] On the same date, the Court set a date and procedure for the parties to file and serve dispositive pretrial motions.

On September 29, 2016, Hartmann moved for reconsideration of the September 19, 2016 Order. The Government filed its opposition thereto and a Motion for Status Conference on May 17, 2017. On May 26, 2017, Hartmann filed his Motion to Strike [the Government’s Opposition], a Reply to Opposition to Vacate, and a Motion to Change Venue. The Government filed its Opposition to Motion to Change Venue and Opposition to Motion to Strike Defendant’s Opposition Pleading on May 31, 2017.

II. HARTMANN’S MOTION TO STRIKE

On May 26, 2017, Hartmann filed a motion asking the Court to strike the Government’s Opposition to Motion to Vacate Order Granting Partial Summary Judgment as untimely and consider his motion unopposed. Hartmann’s Motion to Set Aside Order Granting Partial Summary Judgment was filed on September 29, 2016 and the Certificate of Service attached thereto states that it was e-mailed the same day and would be served by hand delivery the next day, September 30, 2016. If that service did in fact happen, any opposition thereto would have been due October 10, 2016. The Government’s opposition was filed May 17, 2017. No enlargement was sought.

In its Opposition,^[1] filed May 31, 2017, the Government avers that it was never served Hartmann’s Motion to Set Aside Order Granting Partial Summary Judgment and that it only became aware of the filing when counsel for the Government personally reviewed the Court’s file, after which counsel immediately filed an opposition thereto. Cf. Medabalmi v. Island Imports Co., 10 FSM R. 32, 34 (Chk. 2001) (defendant could not have possibly filed a late or untimely answer where it was not properly served with a complaint and summons). The Government correctly contends that the Court’s rules do not allow for service by e-mail. It further contends that a certificate of service which speaks of service on the opposing party sometime in the future is meaningless. Last, it avers that a review of the Government’s log sheet at the FSM Department of Justice shows no record of any filing like that at issue here ever being received. Although a court must rely on a certificate of service attached to a filing and presume that it is correct, such a presumption may be rebutted by admissible evidence. Fan Kay Man v. Fananu Mun. Gov’t, 12 FSM R. 492, 495 (Chk. 2004). Hartmann has not disputed the Government’s position that it was never properly served.

Where no reason is provided for late filing and an enlargement of time is never sought, responsive papers will be stricken from the record as untimely and the motions considered unopposed. See, e.g., Ehsa v. FSM Dev. Bank, 19 FSM R. 253, 255 (Pon. 2014). Here, the Government has not filed a motion for enlargement of time; it has, however, provided legitimate reasons for the delay in filing its opposition. Furthermore, Hartmann has not provided reasons why the Court’s consideration of the untimely opposition would prejudice him at all.

Because nothing has transpired in this matter since the Court’s September 19, 2016 Order Granting Partial Summary Judgment, when the policy of deciding cases on the merits outweighs any prejudice to Hartmann, and because the reasons provided by the Government would constitute excusable neglect, the Court HEREBY DENIES Hartmann’s Motion to Strike, filed May 26, 2017.

III. HARTMANN’S MOTION TO CHANGE VENUE

Hartmann seeks a change of venue from Chuuk to Pohnpei. In support of his motion, he claims that his counsel, opposing counsel, and the presiding judge all reside on Pohnpei and that therefore, moving the venue to Pohnpei would expedite the resolution of this matter. He claims that the facts are not disputed and that moving the case forward is more important than being able to be physically present at any further hearings should he be unable to travel from Chuuk to Pohnpei for any given proceeding.

The Government contends that Hartmann’s request is not in the interests of justice because (1) changing venue would serve only to stifle the FSM national government’s travel expenses as the employer of both counsel and the presiding judge; (2) any further proceedings scheduled by the Court can be heard telephonically, if necessary; and (3) if the venue was changed as requested, in the event that an evidentiary proceeding were scheduled and he were called to testify, Hartmann would suffer the personal financial burden of having to travel to Pohnpei because there is no indication of his intent to relocate from Chuuk to Pohnpei.

The venue statute in the FSM code provides that "[e]xcept as otherwise provided, a civil action in which one of the defendants lives in the Trust Territory shall be brought in a court within whose jurisdiction the defendant or the largest number of defendants live or have their usual places of business or employment." 6 F.S.M.C. 301(1). The FSM Department of Justice has a physical office in Chuuk and therefore must be "found" or be "present" in Chuuk. Marsolo v. Esa, 18 FSM R. 59, 66 (Chk. 2011). Notwithstanding, the FSM Department of Justice can also be "found" or "present" in Pohnpei where it also maintains a physical office. This case presents a peculiar situation insofar that the movant for a change of venue is Hartmann, the party who originally filed this lawsuit in the FSM Supreme Court trial division sitting in the State of Chuuk.

6 F.S.M.C. 304(3) allows part or all of a case to be heard in a state other than the one in which it was brought "if the interests of justice will be served thereby." Dorval Tankship Pty., Ltd. v. Department of Finance, 8 FSM R. 111, 114 (Chk. 1997).

Besides the financial savings of the FSM national government and a speculative potential for a more expeditious disposal of this matter, Hartmann has not provided sufficient reasons why the interests of justice will be served by changing the venue from Chuuk to Pohnpei. Therefore, Hartmann’s Motion to Change Venue is HEREBY DENIED.

IV. HARTMANN’S MOTION TO SET ASIDE ORDER GRANTING PARTIAL SUMMARY JUDGMENT

Hartmann moves for relief from the Court’s partial summary judgment, issued on September 19, 2016, pursuant to Rule 60 of the FSM Rules of Civil Procedure.

When there is no final judgment in a case but only an interlocutory order, a motion for relief from the interlocutory order will properly be characterized, not as one for relief from judgment under Rule 60(b), but as one to reconsider an interlocutory order under Rule 54(b). People of Eauripik ex rel. Sarafongelfeg v. F/V Teraka No. 168, 18 FSM R. 307, 312 (Yap 2012); Smith v. Nimea, 16 FSM R. 346, 348-49 (App. 2009); Smith v. Nimea, 17 FSM R. 125, 128-29 (Pon. 2010); Richmond Wholesale Meat Co. v. George, 11 FSM R. 86, 88 (Kos. 2002); Stephen v. Chuuk, 11 FSM R. 36, 43 (Chk. S. Ct. Tr. 2002) (a party cannot seek relief from a judgment that does not exist).

Rule 54(b) of the FSM Rules of Civil Procedure reads:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Upon review of the Court’s September 19, 2016 Order, it is clear that the Court adjudicated fewer than all of the claims for relief. Although the Court dismissed Hartmann’s claim for a declaratory judgment that he is an FSM citizen, holding that he is an FSM National, there remains the issue of whether, as an FSM National, he is entitled to renewal of his FSM passport.

As a result, and because the Court did not make an express determination that there is no just reason for delay and direct for the entry of judgment, that order is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of the parties and cannot be a final judgment. Therefore, because there is no final judgment in this matter, but only an interlocutory order, Hartmann’s motion for relief from the interlocutory order is properly characterized, not as one for relief from judgment under Rule 60(b), but as one to reconsider the September 19, 2016 interlocutory order granting partial summary judgment under Rule 54(b).

Hartmann contends that the order of partial summary judgment must be set aside because the Court overlooked a critical difference between the FSM Constitution, Article III, section 3 and 7 F.S.M.C. 203, as amended.

The FSM Constitution Article III, section 3 reads:

A citizen of the Federated States of Micronesia who is recognized as a citizen of another nation shall, within 3 years of his 18th birthday, . . . register his intent to remain a citizen of the Federated States and renounce his citizenship of another nation. If he fails to comply with this Section, he becomes a national of the Federated States of Micronesia.

7 F.S.M.C. 203, as amended, reads:

A citizen of the Federated States of Micronesia who is recognized as a citizen of another nation shall, within 3 years of his 18th birthday, . . . register his intent to remain a citizen of the Federated States with the President or his designee in a manner and form prescribed by law or regulation and renounce his citizenship of another nation. If he fails to comply with this section, he becomes a national of the Federated States of Micronesia. A citizen who holds an FSM passport that has been renewed twice in a row is entitled to a rebuttable presumption that he has renounced the citizenship of another nation and that he is solely an FSM citizen.

(emphasis added).

Hartmann contends that the more specific language used in the statute is dispositive because without any regulations promulgated by the President or his designee prescribing the manner and form by which to register one’s intent to remain a citizen of the Federated States, he and others who are similarly situated are not given notice and opportunity to be heard before losing their FSM citizenship. He contends that the Constitutional provision is not self-executing, that the more specific language in 7 F.S.M.C. 203 as amended fixes that, and that the President’s failure to promulgate regulations as contemplated by 7 F.S.M.C. 203 means the law on losing one’s citizenship cannot be implemented yet and this Court’s partial summary judgment order adjudicating his citizenship status must be vacated. Pet’r’s Mot. to Set Aside Order Granting Partial Summ. J. at 3-4.

First, any truth to the allegation that the Court overlooked dispositive differences in language between Article III, section 3 of the FSM Constitution and 7 F.S.M.C. 203 is moot because by Hartmann’s own admission, he has not formally renounced any claim he may have to United States citizenship and does not wish to do so even now. As a result, even if the Court were to agree with the position taken in his motion, Hartmann would not be recognized as a citizen, but only a national, of the Federated States of Micronesia pursuant to the Constitution. In other words, addressing the distinction would not be necessary, or at worst harmless error, because the difference in the language is not material to the Court’s adjudication.

Moreover, the motion does not state any grounds for relief because, despite Hartmann’s contention, the Court did in fact acknowledge and consider both the language of Article III, section 3 of the FSM Constitution and that of 7 F.S.M.C. 203 in issuing its Order Granting Partial Summary Judgment. Hartmann, 20 FSM R. at 622-23.

Hartmann’s contention that Article III, section 3 of the FSM Constitution is "clearly not self-executing" is also without merit. The Court has stated that Article III, sections 1 and 2 of the FSM Constitution are self-executing and do not contemplate, or imply the need for, court action to confirm citizenship where no challenge exists. In re Sproat, 2 FSM R. 1, 7 (Pon. 1985). FSM jurisprudence, however, is silent on the issue of whether Article III, section 3 is also self-executing. The Court believes it is for the following reasons.

A constitutional provision is self-executing when no legislation is required to bring it into effect and when there is no indication that legislation is contemplated in order to render it operative. Panuelo v. Pohnpei, 3 FSM R. 76, 82 (Pon. S. Ct. App. 1987). "[O]therwise stated, constitutional provisions are self-executing if they supply a sufficient rule for their implementation, or when there is a manifest intention that they should go into immediate effect, and no ancillary legislation is necessary to the enjoyment of a right given, or the enforcement of a duty imposed." 16 C.J.S. Constitutional Law § 46 (1984).

While a self-executing provision does not require any legislation to render it operative, it has been held that minor details may be left for the legislature without impairing the self-executing nature of a constitutional provision. Accordingly, the fact that a right granted [or duty imposed] by a constitutional provision may be better or further protected by supplementary legislation does not of itself prevent the provision in question from being self-executing; nor does the self-executing character of a constitutional provision necessarily preclude legislation for the better protection of the right secured or legislation in furtherance of the purposes, or of the enforcement, of the provision. . . .

Consiotutional prol provisions are not self-executing if they merely indicate a line of policy or principle, without supplying the means by which such policy onciple to be carried into effect, or if the language oage of thef the constitution is directed to the legislature, or if it appears from the language used and the circumstances of its adoption that subsequent legislation was contemplated to carry it into effect. . . . Accordingly, the questi n as to whether a constitutional provision is self-executing is ultimately one of the intention of the framers of the constitution, and, in order to determine the intent, the general rule is that courts will consider the language used, the objects to be accomplished by the provision, and the surrounding circumstances. . . .

Constitutional provisions have been presumed to be self-executing . .&#1and tre cone construed rued as such, rather than quirirtherslation, unless the contrary clearly appears.

Id.; ; acci>accord THOMAS M. COOLEY, A TREATISE ON THSTITUL LIMITATIONS WHIS WHICH RECH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 119-22 (7th ed. 1903).

A constitutional provision is self-executing insofar as it is susceptible of execution without supplemental legislation. "But where a constitution asserts a certain right, or lays down a certain principle of law or procedure, it speaks for the entire people as their supreme law, and is full authority for all that is done in pursuance of its provision. In short, if complete in itself, it executes itself." Davis v. Burke, [1900] USSC 221; 179 U.S. 399, 403[1900] USSC 221; , 21 S. Ct. 210, 212[1900] USSC 221; , 45 L. Ed. 249, 251-52 (1900).

Article III, section 3 of the FSM Constitution prescribes a clear rule which is capable of enforcement without the need for legislation. It clearly provides that a citizen of the FSM who is also a citizen of another nation shall, within three years of his eighteenth birthday, shall (1) register his intent to remain a citizen of the Federated States of Micronesia and (2) renounce his citizenship of another nation. Under the plain language of the Constitution, failure to comply with the above requirements means that person automatically, by operation of constitutional law, becomes a national of the Federated States of Micronesia. When the FSM Constitution declares that an FSM citizen must take some specified action within a designated period of time and failure to do so will result in him or her becoming a national of the FSM, it is understood exactly what is meant.

Perhaps regulations may be desirable as Congress thought it was when it directed the President or his designee to promulgate regulations setting forth the manner and form by which a citizen who intends to remain a citizen of the FSM under 7 F.S.M.C. 203. Any regulations would provide convenient remedies for the protection of the right secured and regulating the claim of citizenship so that its exact limits may be better known and understood. However, any "such legislation [or regulation] must be subordinate to the constitutional provision, and in furtherance of its purpose, and must not in any particular attempt to narrow or embarrass it." COOLEY, supra, at 122. It certainly cannot be said that the supplemental legislation and any lack of regulations promulgated thereunder supplant the FSM Constitution’s clear mandate.

Article III, section 3 of the FSM Constitution is self-executing in that it can be given effect without the aid of legislation and there is nothing to indicate that legislation is intended to make it operative.

Accordingly, Hartmann’s motion for reconsideration is HEREBY DENIED.

V. CONCLUSION

Hartmann’s Motion to Strike the Government’s Opposition to its Motion to Set Aside Order Granting Partial Summary Judgment, filed May 26, 2017, is HEREBY DENIED; his Motion to Change Venue is HEREBY DENIED; and his Motion to Vacate Order Granting Partial Summary Judgment is HEREBY DENIED.

The Court notes that the parties have not filed dispositive motions pertaining to the remaining issue of whether an FSM national has a right to an FSM passport, as the Court contemplated in its September 19, 2016 order. The parties will therefore have until May 9, 2018 to file and serve dispositive motions on that issue. Reply briefs, if any, shall be due no later than May 24, 2018.

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^[1] The Government purportedly files its opposition "pleading" pursuant to FSM Civil Rule 12. A motion to strike a memorandum supporting a motion and a response to an opposition is not a motion to strike matter from pleadings subject to Rule 12(f), but rather, falls under the general motion practice of Rule 7(b), which provides that an application to the court for an order shall be by motion and shall set forth the relief or order sought. Sipos v. Crabtree, 13 FSM R. 355, 360 (Pon. 2005) (motions are not pleadings and oppositions are not responsive pleadings); Adams v. Island Homes Constr., Inc., 10 FSM R. 159, 161 (Pon. 2001). At this juncture, the parties are engaging in motion practice because the only pleadings allowed are set forth in Rule 7(a) of the FSM Rules of Civil Procedure, which reads:

(a) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.