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Estate of Gallen v Governor [2018] FMSC 9; 21 FSM R. 477 (Pon. 2018) (9 April 2018)


FSM SUPREME COURT TRIAL DIVISION


CIVIL ACTION NO. 2017-003


ESTATE OF ELIHNA GALLEN, and PATERSON )
GALLEN, BRYAN GALLEN, EDWARD GALLEN, )
ARVIN GALLEN, QUINCY GALLEN, PATRICK )
GALLEN, and HERBERT GALLEN, )
)
Real Parties in Interest, Plaintiffs, )
)
vs. )
)
GOVERNOR OF THE STATE OF POHNPEI, )
POHNPEI STATE GOVERNMENT, SPEAKER OF )
THE POHNPEI LEGISLATURE, and the PUBLIC )
LANDS TRUST BOARD OF POHNPEI STATE, )
)
Defendants. )
_____________________________________________ )


ORDER GRANTING PARTIAL SUMMARY JUDGMENT


Larry Wentworth
Associate Justice


Decided: April 9, 2018


APPEARANCES:


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


For the Defendants: Dana W. Smith, Esq.
Attorney General
Judah C. Johnny
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941


* * * *


HEADNOTES


Civil Procedure Motions
As form must not be elevated over substance, a motion or a filing is what it is regardless of what the party filing it has labeled it. Estate of Gallen v. Governor, 21 FSM R. 477, 482 (Pon. 2018).


Civil Procedure Motions; Civil Procedure Res Judicata
When a defendant seeks an adjudication, as a matter of law, on the merits of its res judicata and collateral estoppel defenses, its "motion to dismiss" is actually a motion for summary judgment on those affirmative defenses. Estate of Gallen v. Governor, 21 FSM R. 477, 482 (Pon. 2018).


Civil Procedure Collateral Estoppel; Civil Procedure Pleading Affirmative Defenses; Civil Procedure Res Judicata
Res judicata and collateral estoppel are affirmative defenses. Estate of Gallen v. Governor, 21 FSM R. 477, 482 (Pon. 2018).


Civil Procedure Pleading Affirmative Defenses
An affirmative defense is the defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s claim, even if all the allegations in the complaint are true. Estate of Gallen v. Governor, 21 FSM R. 477, 482 n.2 (Pon. 2018).


Civil Procedure Pleading Affirmative Defenses
Generally, an affirmative defense not set forth in a responsive pleading is deemed waived. Estate of Gallen v. Governor, 21 FSM R. 477, 482-83 (Pon. 2018).


Civil Procedure Collateral Estoppel; Civil Procedure Pleading Affirmative Defenses; Civil Procedure Res Judicata
Res judicata and collateral estoppel are affirmative defenses that must be pled. The purpose of such pleading is to give the opposing party notice of the plea and a chance to argue, if it can, why the imposition of an estoppel would be inappropriate. Estate of Gallen v. Governor, 21 FSM R. 477, 483 (Pon. 2018).


Civil Procedure
Although the court must first look to FSM sources of law rather than start with a review of other courts’ cases, an FSM court may look to U.S. sources for guidance in interpreting a civil procedure rule when it has not yet considered an aspect of an FSM rule that is identical or similar to the U.S. counterpart. Estate of Gallen v. Governor, 21 FSM R. 477, 483 n.3 (Pon. 2018).


Civil Procedure Pleading Affirmative Defenses

Rule 8(c)’s purpose is to put opposing parties on notice of affirmative defenses and to afford them the opportunity to respond to the defenses, but an affirmative defense need not be articulated with any rigorous degree of specificity and is sufficiently raised for purposes of Rule 8 by its bare assertion. Estate of Gallen v. Governor, 21 FSM R. 477, 483 (Pon. 2018).


Civil Procedure Collateral Estoppel; Civil Procedure Pleading Affirmative Defenses; Civil Procedure Res Judicata
When a defendant, although it did not expressly use the term "res judicata" or "collateral estoppel" in its answer, did describe the res judicata and collateral estoppel principles accurately enough that the plaintiffs should have been put on notice of its potential affirmative defense, it has pled the affirmative defense’s substance, and that is usually enough. Estate of Gallen v. Governor, 21 FSM R. 477, 483 (Pon. 2018).


Civil Procedure Pleading Affirmative Defenses; Civil Procedure Res Judicata
If a defendant had pled that "the issues that are now brought before this court have already been litigated and decided by the Trust Territory High Court or the Pohnpei State Supreme Court" as an affirmative defense instead of "reserving the right" to raise it later, the court would have no difficulty concluding that that answer articulated the defendant’s affirmative defenses with sufficient specificity to give the plaintiffs adequate notice of that defense. In such a case, the court could not conclude that the defense was waived. Estate of Gallen v. Governor, 21 FSM R. 477, 483-84 (Pon. 2018).


Civil Procedure Pleading Affirmative Defenses
Since a defendant’s mere recitation in an answer of a reservation of a "right" to assert additional affirmative defenses sometime in the future if additional information is revealed is not itself an affirmative defense, but is only a statement that the party might want to plead an additional, currently unknown affirmative defense at some unknown later date, the court can only disregard the defendant’s "reservation" of the right to assert additional affirmative defenses, and require the defendant to adhere to Rule 15(a) if and when it wished to assert an additional affirmative defense. Estate of Gallen v. Governor, 21 FSM R. 477, 484 (Pon. 2018).


Civil Procedure Pleading Amendment
In a close case, the court would most probably adhere to the Rules’ spirit that it is preferable that cases be decided on the merits rather than on procedural points, and grant leave to amend a pleading. Estate of Gallen v. Governor, 21 FSM R. 477, 484 & n.6 (Pon. 2018).


Civil Procedure Pleading Affirmative Defenses; Civil Procedure Pleading Amendment
Ideally, a defendant, if it did not assert its affirmative defense in its original answer, should first move to amend the answer (if it had not already amended its answer as of right within twenty days of filing the original answer), and then once the amendment was granted, move for summary judgment on the affirmative defense. Estate of Gallen v. Governor, 21 FSM R. 477, 484 (Pon. 2018).


Civil Procedure Default and Default Judgments Entry of Default
The plaintiffs’ request for entry of default will be denied when the plaintiffs did not make their request, and the clerk did not enter a default, before the defendant filed its answer. Estate of Gallen v. Governor, 21 FSM R. 477, 484 n.7 (Pon. 2018).


Civil Procedure Pleading Amendment
A party, seeking to amend its pleading, is expected to include the proposed amended pleading with its motion to amend. Otherwise, the court would not know what it is ruling on. Estate of Gallen v. Governor, 21 FSM R. 477, 485 (Pon. 2018).


Civil Procedure Pleading Amendment

Absent any apparent or declared reason, such as undue delay, bad faith, or dilatory motive on the movant’s part, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the amendment’s allowance, or futility of amendment, leave to amend should, and will, as Rule 15(a) requires, be freely given. Estate of Gallen v. Governor, 21 FSM R. 477, 485 (Pon. 2018).


Civil Procedure Pleading Amendment
Under Rule 15(a), a court should, and will, exercise its discretion liberally to allow amended pleadings when justice so requires. This is because Rule 15’s purpose is to provide maximum opportunity for each claim to be decided on the merits rather than on procedural technicalities. Estate of Gallen v. Governor, 21 FSM R. 477, 485 (Pon. 2018).


Civil Procedure Pleading Amendment
Undue prejudice to the opposing party, not the moving party’s diligence, is the crucial factor in determining whether to grant leave to amend a pleading. Estate of Gallen v. Governor, 21 FSM R. 477, 485 (Pon. 2018).


Civil Procedure Summary Judgment
When, on a motion to dismiss, the court sees no reason to exclude the matters outside the pleading that are presented to the court, the motion must then be treated as one for summary judgment. Estate of Gallen v. Governor, 21 FSM R. 477, 486 n.9 (Pon. 2018).


Civil Procedure Res Judicata
The res judicata doctrine bars the relitigation by parties or their privies of all matters that were or could have been raised in a prior action that was concluded by a final judgment on the merits, which has been affirmed on appeal or for which time for appeal has expired. Estate of Gallen v. Governor, 21 FSM R. 477, 487 (Pon. 2018).


Civil Procedure Res Judicata Privity
A privy is a person having a legal interest of privity in any action, matter, or property. Privity is the connection or relationship between two parties, each having a legally recognized interest in the same subject matter (such as a transaction, proceeding, or piece of property). Estate of Gallen v. Governor, 21 FSM R. 477, 487 n.10 (Pon. 2018).


Civil Procedure Res Judicata; Judgments Final Judgment
Final judgments, as a rule, generally bind only the parties to the case and all those in privity with them, and, when a judgment is final, res judicata then applies. That doctrine bars any further litigation of the same issues between the same parties or anyone claiming under those parties. Estate of Gallen v. Governor, 21 FSM R. 477, 487 (Pon. 2018).


Civil Procedure Res Judicata
As a general rule, res judicata applies only to parties, and their privies, to an earlier proceeding. It generally does not operate to affect strangers to a judgment, that is, to affect the rights of those who are neither parties nor in privity with a party therein. Estate of Gallen v. Governor, 21 FSM R. 477, 487 (Pon. 2018).


Civil Procedure Collateral Estoppel
The collateral estoppel doctrine provides that a right, question, or fact which is distinctly put in issue and directly determined as a ground of recovery by a court of competent jurisdiction cannot be disputed in a subsequent action between the same parties, even if the subsequent action is on a different cause of action. Estate of Gallen v. Governor, 21 FSM R. 477, 487 (Pon. 2018).


Civil Procedure Res Judicata Privity
Traditionally, there are six types of privies: 1) privies in blood, such as an heir and an ancestor; 2) privies in representation, such as an executor and a testator or an administrator and an intestate person; 3) privies in estate, such as a grantor and grantee or lessor and lessee; 4) privies in respect to a contract the parties to a contract; 5) privies in respect of estate and contract, such as a lessor and lessee where the lessee assigns an interest, but the contract between lessor and lessee continues because the lessor did not accept the assignee; and 6) privies in law, such as husband and wife. Estate of Gallen v. Governor, 21 FSM R. 477, 488 (Pon. 2018).


Civil Procedure Res Judicata Privity
The term "privity" also appears in the context of litigation. In this sense, it includes someone who controls a lawsuit though not a party to it; someone whose interests are represented by a party to the lawsuit; and a successor in interest to anyone having a derivative claim. Estate of Gallen v. Governor, 21 FSM R. 477, 488 (Pon. 2018).


Civil Procedure Res Judicata Privity
A person, who is a privy in representation because he is an administrator of a decedent’s estate, may, in another capacity, not be a privy, and the claim in that other status will not be barred. Estate of Gallen v. Governor, 21 FSM R. 477, 488 (Pon. 2018).


Civil Procedure Res Judicata Privity
To be a privy in the context of litigation for res judicata purposes, the nonparty must be so connected with the party that the interests of both were affected by the judgment in the prior litigation. Estate of Gallen v. Governor, 21 FSM R. 477, 488 (Pon. 2018).


Civil Procedure Res Judicata Privity
Privity is created when two or more persons have a mutual or successive relationship to the same rights of property. The privity relationship generally involves a party so identified in interest with the other party that they represent one single, legal right. Estate of Gallen v. Governor, 21 FSM R. 477, 488-89 (Pon. 2018).


Civil Procedure Collateral Estoppel; Civil Procedure Res Judicata
When persons were not parties to, or in privity with a party to, the prior litigation, the res judicata doctrine will not bar them from pursuing their claims as designees in a later lawsuit. The same is true of the collateral estoppel doctrine. Estate of Gallen v. Governor, 21 FSM R. 477, 489 (Pon. 2018).


* * * *


COURT’S OPINION


LARRY WENTWORTH, Associate Justice:


On May 17, 2017, the Governor of the State of Pohnpei, the Pohnpei State Government, the Speaker of the Pohnpei Legislature, and the Public Lands Trust Board of Pohnpei State (hereafter collectively "Pohnpei") filed a Motion to Dismiss. On June 16, 2017, the plaintiffs filed their Opposition to Motion to Dismiss. Based on its affirmative defense, as amended,[1] Pohnpei is granted summary judgment against plaintiff Estate of Elihna Gallen and its privies. The reasons follow.


I. WHETHER POHNPEI’S MOTION TO DISMISS IS PROPERLY BEFORE THE COURT


Pohnpei moves to dismiss this suit because, in its view, all of the issues and claims raised in this suit were raised in earlier litigation in the Trust Territory High Court and in the Pohnpei Supreme Court. Citing the affirmative defenses of res judicata and collateral estoppel, Pohnpei asks that the court dismiss this case with prejudice.


The plaintiffs assert that this motion is improper. They contend that Pohnpei has waived the right to assert res judicata and collateral estoppel defenses by failing to state those affirmative defenses in its answer. They further contend that Pohnpei’s motion was brought under Rule 41(b), and, since that rule applies to dismissals when a plaintiff has abandoned its claims, the court should deny the motion because the plaintiffs have obviously not abandoned their claims.


A. Motion’s Nature


As form must not be elevated over substance, a motion or a filing is what it is regardless of what the party filing it has labeled it. Carlos Etscheit Soap Co. v. McVey, 17 FSM R. 427, 435 (App. 2011); Berman v. Pohnpei Legislature, 17 FSM R. 339, 352 n.5 (App. 2011); McIlrath v. Amaraich, 11 FSM R. 502, 505-06 (App. 2003); FSM Dev. Bank v. Arthur, 16 FSM R. 132, 138 n.4 (Pon. 2008); Mori v. Hasiguchi, 19 FSM R. 222, 225-26 (Chk. 2013) (regardless of what a movant calls a motion, a court will look to the actual relief sought and decide the motion on the basis of what it actually is, not what it is labeled).


Pohnpei’s motion is entitled "Motion to Dismiss." The primary relief it asks for is that "this action [be] dismissed with prejudice." Motion to Dismiss at 6 (May 19, 2017). What Pohnpei seeks is an adjudication, as a matter of law, on the merits of its res judicata and collateral estoppel defenses. That being so, Pohnpei’s "motion to dismiss" is actually a motion for summary judgment on those affirmative defenses. Carlos Etscheit Soap Co. v. McVey, 17 FSM R. 102, 108 (Pon. 2010) ("[a] trial court judgment issued without a trial or an evidentiary hearing is a summary judgment to which the trial court should apply the summary judgment standard"), aff’d, 17 FSM R. 427, 435 (App. 2011) (when a movant "requests certain judgments and argues that it is entitled to them as a matter of law, the motion is one for summary judgment, regardless of the title of the motion" (emphasis in original)).


The plaintiffs’ contention that this is an improper Rule 41(b) motion is thus easily rejected. Their contention that Pohnpei has waived their right to raise res judicata and collateral estoppel defenses bears more scrutiny.


B. Pleading Affirmative Defense


Res judicata and collateral estoppel are affirmative defenses.[2] Civil Procedure Rule 8(c) (listing nineteen specific examples) requires that affirmative defenses be set forth in a "pleading to a preceding pleading" (such as in an answer to a complaint). Generally, an affirmative defense not set forth in a responsive pleading is deemed waived. Bank of Hawaii v. Susaia, 19 FSM R. 66, 69 n.2 (Pon. 2013); Luen Thai Fishing Venture, Ltd. v. Pohnpei, 18 FSM R. 653, 656 (Pon. 2013); Kishida v. Aizawa, 13 FSM R. 281, 284 (Chk. 2005). The reason for such a requirement is clear.


"Res judicata and collateral estoppel are affirmative defenses that must be pleaded. The purpose of such pleading is to give the opposing party notice of the plea . . . and a chance to argue, if he can, why the imposition of an estoppel would be inappropriate." Blonder-Tongue Labs., Inc. v. University of Ill. Found., [1971] USSC 85; 402 U.S. 313, 350[1971] USSC 85; , 91 S. Ct. 1434, 1453-54, 28 L. Ed. 8, 8171).[3] Rule 8(c)’s purpose "is to put opposing parties on notice of affirmative defenses and to afford them the opportunity to respond to the defenses," but an affirmative defense "’need not be articulated with any rigorous degree of specificity’ and is ’sufficiently raised for purposes of Rule 8 by its bare assertion.’" Daingerfield Island Protective Soc’y v. Babbit[1995] USCADC 53; , 40 F.3d 442, 444-45 (D.C. Cir. 1994) (quoting Kulzer v. Pittsburgh-Corning Corp., [1991] USCA2 889; 942 F.2d 122, 125 (2d Cir. 1991)) (emphasis in original). That way, counsel may proceed "knowing what affirmative defenses or ’any other matter constituting an avoidance’ the facts support, and present evidence accordingly." Senda v. Semes, 8 FSM R. 484, 494 (Pon. 1998).


C. Whether Pohnpei Adequately Pled the Affirmative Defense


In its answer, Pohnpei stated that it was searching court records for background information and, presumably depending on what it found, it "respectfully request[ed] to preserve right to file further amendment and/or motion to dismiss if the issues that are now brought before this court have already been litigated and decided by the Trust Territory High Court or the Pohnpei State Supreme Court." Answer at 2 (Mar. 24, 2017).


Although Pohnpei did not expressly use the term "res judicata" or "collateral estoppel"[4] in its original answer, it did describe the res judicata and collateral estoppel principles accurately enough that the plaintiffs should have been put on notice of Pohnpei’s potential affirmative defense. Pohnpei pled the affirmative defense’s substance. That is usually enough. Overseas Motors, Inc. v. Import Motors Ltd., 375 F. Supp. 499, 512-13 (E.D. Mich. 1974) (Rule 8(c) requirement fulfilled when at very least plaintiff was apprised of defendant’s intent to assert res judicata in some manner in the future when arbitration decision became final since such averment adequately informed plaintiff of defense’s existence).[5]


If Pohnpei had directly pled that "the issues that are now brought before this court have already been litigated and decided by the Trust Territory High Court or the Pohnpei State Supreme Court" as an affirmative defense instead of "reserving the right" to raise it later, the court would now have no difficulty concluding that that answer articulated Pohnpei’s affirmative defenses with sufficient specificity to give the plaintiffs adequate notice of that defense. In such a case, the court could not conclude that the defense was waived.


The court has, however, ruled that a mere recitation in an answer of a reservation of a "right" to assert additional affirmative defenses sometime in the future if additional information is revealed is not itself an affirmative defense, but is only a statement that the party might want to plead an additional, currently unknown affirmative defense at some unknown later date. Chuuk Health Care Plan v. Department of Educ., 18 FSM R. 491, 495 (Chk. 2013). The court ruled that it could only disregard the defendants’ "reservation" of the right to assert additional affirmative defenses, and that the defendant would have to "adhere to Rule 15(a) if and when it wishe[d] to assert an additional affirmative defense." Id. at 495-96.


Pohnpei’s answer was not so vague as to reserve unknown defenses. It did give the plaintiffs fair notice of the affirmative defense that Pohnpei expected it would assert. Rule 8(c)’s purpose was, at least, thus addressed.


D. Amended Answer


If that were all Pohnpei did, this would have been a close case.[6] But Pohnpei went further. It eventually, if somewhat belatedly, moved to amend its pleading and (ostensibly in response to the plaintiffs’ amended complaint) attached its proposed Amended Answer and Affirmative Defense, in which it not only pled the affirmative defenses of res judicata and collateral estoppel, but also did so with such specificity that the affirmative defense pleading ran for eight pages in the amended answer. Amended Answer & Affirmative Defense at 5-12.


Ideally, Pohnpei, if it did not assert the affirmative defense in their original answer, should have first moved to amend the answer (if they had not already amended their answer as of right within twenty days of filing the original answer), and then once the amendment was granted, moved for summary judgment on the affirmative defense. Instead, Pohnpei filed a motion to dismiss first, and later, presumably to cure any defect in that filing procedure, filed the motion to amend.


The plaintiffs would have the court deny Pohnpei’s [summary judgment] motion because, in their view, no affirmative defense was initially pled, and would then have the court either deny the motion to amend or, if it is granted, then require Pohnpei to file and serve a renewed [summary judgment] motion. As more fully explained below, the court, by its February 27, 2018 order,[7] rejected the plaintiffs’ procedural attack on Pohnpei’s [summary judgment] motion and, instead of going around in circles and having the same motion to dismiss refiled and re-served all over again, granted Pohnpei leave to amend its answer.


The plaintiffs opposed the amendment. They contended that Pohnpei’s motion had to be denied because it was "a bare motion without supporting points and authorities," and because Pohnpei did not follow the proper procedure when they asked to reserve the right to file further amendments and then filed a motion to dismiss instead. Opp’n to Mot. to Amend Pleadings at 1-2 (Oct. 9, 2017). The plaintiffs asserted that Pohnpei "should not be permitted to amend their pleadings to include the affirmative defense of res judicata, because they did not pled [sic] affirmative defense in their Answer but filed an hastily considered answer instead without seeking additional time to answer the complaint." Id. at 3-4. They also claimed that Pohnpei should not have attached the proposed amended answer. Supplemental Opp’n to Mot. to Amend Pleadings (Nov. 12, 2017).


While Pohnpei’s motion to amend was sparse, it did contain an authority (FSM Civ. R. 15(a)), and, by attaching the proposed amended answer, provided ample supporting points.[8] A party, seeking to amend its pleading, is expected to include the proposed amended pleading with its motion to amend. Cf. In re Engichy, 11 FSM R. 555, 557 (Chk. 2003) (motion to intervene denied solely because no proposed pleading attached). Otherwise, the court would not know what it is ruling on.


Absent any apparent or declared reason, such as undue delay, bad faith, or dilatory motive on the movant’s part, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the amendment’s allowance, or futility of amendment, leave to amend should, and will, as Rule 15(a) requires, be "freely given." Arthur v. FSM Dev. Bank, 14 FSM R. 390, 395 (App. 2006); Primo v. Pohnpei Transp. Auth., 9 FSM R. 407, 413 (App. 2000). Under Rule 15(a), a court should, and will, exercise its discretion liberally to allow amended pleadings when justice so requires. Ramp v. Panuelo, 18 FSM R. 256, 261 (Pon. 2012); Nakamura v. Mori, 16 FSM R. 262, 268 (Chk. 2009). This is because Rule 15’s purpose is to provide maximum opportunity for each claim to be decided on the merits rather than on procedural technicalities. Arthur, 14 FSM R. at 394.


Here, there was no undue delay, bad faith, or dilatory motive apparent on Pohnpei’s part, or repeated failure to cure deficiencies by amendments previously allowed. Moreover, undue prejudice to the opposing party, not the moving party’s diligence, is the crucial factor in determining whether to grant leave to amend a pleading. Arthur, 14 FSM R. at 395. The plaintiffs did not claim that there was undue prejudice. They instead focused on procedural technicalities. Pohnpei may not have been as diligent as it should have been, but the plaintiffs were not unduly prejudiced thereby. No undue prejudice to the plaintiffs was apparent, or likely, at this early stage of the proceeding, and it was difficult to see how the plaintiffs would be unduly prejudiced by a record of previous litigation.


Accordingly, since the court granted Pohnpei’s motion to amend the answer, Pohnpei’s Amended Answer and Affirmative Defense is now, by this order, hereby deemed filed. Between Pohnpei’s tentative notice of a likely affirmative defense in the original answer, Pohnpei’s motion to dismiss, and Pohnpei’s amended answer, the plaintiffs have received adequate notice of the affirmative defense that they would need to address.


II. MOTION’S MERITS


The court now turns to the merits of Pohnpei’s motion. Pohnpei contends that all of the plaintiffs’ issues and claims have already been decided by other courts of competent jurisdiction, and that, since those decisions are by now final, the res judicata doctrine or collateral estoppel defense act to estop the current action in this court. To support this motion, Pohnpei attaches various filings in other courts.[9] The plaintiffs do not dispute that these documents are true copies of those in the previous legal proceedings.


A. Background


From these attached documents, the court can glean the following undisputed litigation history:


On January 17, 1983, Elihna Gallen appealed an adverse decision of the Ponape Land Commission about Tract No. 73181 to the Trust Territory High Court. "For good cause shown," that court dismissed that appeal on January 31, 1983.


On August 14, 1990, Elihna Gallen filed a Complaint and Petition for Writ of Mandamus in the Pohnpei Supreme Court trial division, naming the State of Pohnpei, Division of Management and Administration of Public Lands, and Sokehs Municipality as defendants. In that action, she alleged that she was issued a certificate of compliance with Pon. S.L. No. 2L-43-80 for tract no. 73181 as an entryman and a certificate of eligibility for up to three hectares of that tract and that she had a right to, and did, designate other eligible Pohnpeians for the excess land in tract no. 73181, but that the Public Land Trust did not honor her designations. She sought a writ of mandamus directing that her designations be honored or that a declaratory judgment issue that the Public Lands lease to Sokehs Municipality be declared invalid.


On July 13, 2005, Elihna Gallen and Pohnpei Land Management filed a settlement agreement in that case, granting most of what she had asked for, and a Pohnpei Supreme Court trial judge endorsed that settlement. On July 29, 2005, the Pohnpei Attorney General moved to vacate that settlement because defendant leaseholder Sokehs was not a party to the settlement and for other reasons. On October 14, 2005, the Pohnpei court granted that motion over Gallen’s opposition.


On April 13, 2012, Herbert Gallen and Patrick Gallen, as the administrators of Elihna Gallen’s estate, filed a new suit in the Pohnpei Supreme Court trial division against Pohnpei Land Management, Pohnpei state government, and Sokehs municipal government. They acknowledged that the previous settlement had been set aside and sought a declaratory judgment that the Sokehs lease was void and asked that Elihna Gallen’s designees be given title.


On January 30, 2013, the Pohnpei trial court dismissed that suit. It held that it lacked jurisdiction because Elihna Gallen (and her estate) lacked standing. It noted that:


She had, and her estate continues to have, her duly authorized three hectares of the land parcel. She also designated certain family members as beneficiaries. . . . [E]ven a favoroutc me woue would not change any of Mrs. Gallen’s rights or interests nor would it add to her estate. Rather, it is the designees, who are not parties in their own capacities, that would garner benefit or detriment from the final disposition of the matter.


Gallen v. Division of Mgt. of Public Lands, Order Granting Defendant’s Motion to Dismiss for Lack of Jurisdiction (Standing) at [unnumbered] 3 (Pon. S. Ct. Tr. Civ. No. 79-12, Jan. 30, 2013). The Pohnpei trial court further noted that it was undisputed that Mrs. Gallen was duly granted title to her share of the land and that she had designated certain family members (Paterson Gallen, Bryan Gallen, Edward Gallen, Arvin Gallen, Quincy Gallen, and Herbert Gallen) as beneficiaries for the balance. Id. The Pohnpei trial court held that Mrs. Gallen had no real stake in the case’s outcome, so her lack of standing went to the heart of the court’s jurisdiction over the matter. Id. It concluded:


Mrs. Gallen was granted her rightful three hectares. She also designated certain family members as beneficiaries that were then able to apply for the remainder of the land parcel. The designees were not granted automatic title to the parcel. They were merely listed as persons who were able to apply for title to the remainder of the land. When the title process was not favorable to the designees, it was up to them to assert their claim of right, not Mrs. Gallen.


Id. at 3-4. The Pohnpei trial court therefore dismissed the case because Elihna Gallen, and her estate, lacked standing.


The Estate timely appealed. On November 10, 2016, the Pohnpei Supreme Court appellate division dismissed the appeal for the Estate’s failure, despite being granted extensions, to file an appellate brief. This dismissal thus made the 2013 trial court decision final.


B. Res Judicata Analysis


The res judicata doctrine bars the relitigation by parties or their privies1[0] of all matters that were or could have been raised in a prior action that was concluded by a final judgment on the merits, which has been affirmed on appeal or for which time for appeal has expired. Iriarte v. Etscheit, 8 FSM R. 231, 236-37 (App. 1998). Final judgments, as a rule, generally bind only the parties to the case and all those in privity with them, and, when a judgment is final, res judicata then applies, and that doctrine bars any further litigation of the same issues between the same parties or anyone claiming under those parties. Heirs of Henry v. Heirs of Akinaga, 19 FSM R. 296, 302 (App. 2014). "[A]s a general rule, res judicata applies only to parties, and their privies, to an earlier proceeding." Luzama v. Ponape Enterprises Co., 7 FSM R. 40, 50 (App. 1995). It generally does not operate to affect strangers to a judgment, that is, to affect the rights of those who are neither parties nor in privity with a party therein. Bank of the FSM v. Hebel, 10 FSM R. 279, 285 (Pon. 2001).


Likewise, the collateral estoppel doctrine provides that a right, question, or fact which is distinctly put in issue and directly determined as a ground of recovery by a court of competent jurisdiction cannot be disputed in a subsequent action between the same parties, even if the subsequent action is on a different cause of action. Berman v. FSM Supreme Court (II), 7 FSM R. 11, 16 (App. 1995).


The judicial decisions cited by Pohnpei appear final. Either Elihna Gallen or the Estate of Elihna Gallen was a party in each of the previous cases. The Estate of Elihna Gallen is a privy of Elihna Gallen since it is her successor in interest. Likewise, the administrators of the Elihna Gallen Estate are, in their capacity as estate administrators, Elihna Gallen’s privies. Pohnpei state government, or an instrumentality thereof, was a defendant in all three cases.


Thus, res judicata is a valid defense against any claims by Elihna Gallen or her privies her estate, her estate’s administrators in their capacities as administrators, and her heirs for any interest she had in what was tract no. 73181 outside of her rightful three hectares. Accordingly, Pohnpei is granted summary judgment against the Estate of Elihna Gallen and against Patrick Gallen and Herbert Gallen in their capacities as administrators of the Estate of Elihna Gallen.


Pohnpei contends that the claims of all the plaintiffs are barred by res judicata. Elihna Gallen was the only plaintiff in the Trust Territory High Court case and in the 1990 Pohnpei Supreme Court case. Only the Estate of Elihna Gallen and the estate’s administrators, Patrick Gallen and Herbert Gallen in their capacities as administrators, were parties to 2012 Pohnpei Supreme Court case. Res judicata will thus operate as a bar against the other plaintiffs in this case only if they are privies of Elihna Gallen in regard to this action’s subject matter.


Traditionally, there are six types of privies: (1) privies in blood, such as an heir and an ancestor; (2) privies in representation, such as an executor and a testator or an administrator and an intestate person; (3) privies in estate, such as a grantor and grantee or lessor and lessee; (4) privies in respect to a contract the parties to a contract; (5) privies in respect of estate and contract, such as a lessor and lessee where the lessee assigns an interest, but the contract between lessor and lessee continues because the lessor did not accept the assignee; and (6) privies in law, such as husband and wife. The term also appears in the context of litigation. In this sense, it includes someone who controls a lawsuit though not a party to it; someone whose interests are represented by a party to the lawsuit; and a successor in interest to anyone having a derivative claim.


BLACK’S LAW DICTIONARY 1320 (9th ed. 2009) (emphasis in original). While the plaintiffs are likely Elihna Gallen’s heirs, their land claim is not based on heirship or inheritance from Elihna Gallen, but rather on her statutorily authorized designation of other possible entrymen. They are thus, for this litigation’s purpose, not privies in blood.


Herbert Gallen and Patrick Gallen are privies in representation because they are administrators of Elihna Gallen’s estate. The court has just entered summary judgment against them in their capacities as estate administrators. Herbert Gallen is also one of Elihna Gallen’s designees. In that capacity, he is not a privy in representation, and that status does not bar his claim as a designee. Since Patrick Gallen is not shown to be one of Elihna Gallen’s designees, it is unclear what claim he has other than as an estate administrator, or possibly an heir. Both such capacities would be in privity with Elihna Gallen and are thus barred by this summary judgment.


None of the plaintiffs are privies in respect to a contract, or privies in respect of estate and contract, or privies in law. They also do not appear to be privies in the context of litigation unless it can be shown that they were persons whose interests were represented by a party (either Elihna Gallen or her estate) to the lawsuit. For res judicata purposes, "the nonparty must be so ’"connected"’ with the party that the interests of both were ’"affected by the judgment"’ in the prior . . . litigation." ruckeSch. Schmidt, 794 N.W.2d 114, 123 (Minn. 2011) (quoting Margo-Kraft Distribs., Inc. v. Minneapolis Gas Co., 200 N.W.2d 45, 47 (Minn. 1972) (citing RESTATEMENT OF JUDGMENTS ټ83 a). "’[P]7;[P]rivitrivity is created when two or more persons have a mutual or successive relationship to the same rights of property.’ . . .e &#8rivity rety relationstionship generally involves a party so identified in interest with the other party that they represent one single, legal right.’" Tungate v. Gardner, 797 A.2d 738, 741 (Me. 2002) (quoting N.E. Harbor Golf Club, Inc. v. Town of Mount Desert, 618 A.2d 225, 227 (Me. 1992); Department of Human Servs. ex rel. Boulanger v. Comeau, 663 A.2d 46, 48 (Me. 1995)).


Here, Elihna Gallen and her designees did not have the same, single legal right in the excess portion of tract no. 73181. Elihna Gallen had only the right to designate, and the designees had, according to the Pohnpei trial court, only the right to apply for that property. From what is before it, the court cannot determine exactly what interests were determined in the Trust Territory High Court judgment, and the 1990 suit in the Pohnpei Supreme Court appears to have been abandoned after the settlement was vacated.


However, the Pohnpei court’s determination in the 2012 lawsuit was crystal clear. Elihna Gallen lacked standing to be a party because no decision by that court concerning the land would affect her (or her estate’s) rights and interests in any way, and conversely, any determination of her interests would not affect the designees’ rights and interests. Neither Elihna Gallen’s interests or her designees’ interests were affected by the Pohnpei trial court dismissal. The Pohnpei trial court noted that it was the designees "that would garner benefit or detriment from the final disposition of the matter," but that they were not parties, and that it was up to the designees "to assert their claim of right." Gallen, Order Granting Defendant’s Motion to Dismiss for Lack of Jurisdiction (Standing) at [unnumbered] 3-4. The Pohnpei trial court also determined that the designees were not privies in estate (like a grantor and grantee or lessor and lessee) when it ruled that the designees "were not granted automatic title to the parcel [but] were merely listed as persons who were able to apply for title to the remainder of the land." Id. When it dismissed the Estate of Elihna Gallen for lack of standing, the Pohnpei trial court practically invited the designees to file their own lawsuit.


Accordingly, since the designees, Paterson Gallen, Bryan Gallen, Edward Gallen, Arvin Gallen, Quincy Gallen, and Herbert Gallen, were not parties to, or in privity with a party to, the prior litigation (except for Herbert Gallen in his capacity as an estate administrator, not as a designee), the res judicata doctrine will not bar them from pursuing their claims as designees in a later lawsuit. The same is true of the collateral estoppel doctrine. See Hofsommer v. Hofsommer Excavating, Inc., 488 N.W.2d 380, 383 (N.D. 1992) (privity required). Therefore, Pohnpei’s motion for judgment against the Gallen designees is denied.


III. CONCLUSION


Accordingly, because the matter is res judicata, the court grants the defendants, the Governor of the State of Pohnpei, the Pohnpei State Government, the Speaker of the Pohnpei Legislature, and the Public Lands Trust Board of Pohnpei State, summary judgment against the Estate of Elihna Gallen and against Herbert Gallen and Patrick Gallen, in their capacities as administrators of Elihna Gallen’s estate. There being no just cause for delay, the clerk shall enter judgment in the Pohnpei defendants’ favor against the Estate of Elihna Gallen and against Herbert Gallen and Patrick Gallen, as administrators of Elihna Gallen’s estate. FSM Civ. R. 54(b).


* * * *

[1] The court, in a February 27, 2018 order, granted Pohnpei’s motion to amend pleadings and denied the plaintiffs’ request for entry of default and motion for default judgment. That order is explained more fully below.

[2] An affirmative defense is the "defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s . . . cleven l the the allegatlegations in the complaint are true." BLACK’S LAW DICTIONARY 482 (9th ed. 2009).

[3] Although the court must first look to FSM sources of law ratw rather ther than start with a review of other courts’ cases, an FSM court may look to U.S. sources for guidance in interpreting a civil procedure rule when it has not yet considered an aspect of an FSM rule that is identical or similar to a U.S. counterpart. See, e.g., Berman v. College of Micronesia-FSM, 15 FSM R. 582, 589 n.1 (App. 2008).

[4] Also known as claim preclusion (res judicata) and issue preclusion (collateral estoppel). See Waguk v. Waguk, 21 FSM R. 60, 69 (App. 2016).

[5] Some courts with similar rules have concluded that a res judicata defense can be raised by pretrial motion. See, e.g., Westwood Chem. Co. v. Kulick, [1981] USCA6 827; 656 F.2d 1224, 1228 (6th Cir. 1981); Iacaponi v. New Amsterdam Cas. Co., [1967] USCA3 185; 379 F.2d 311, 312 (3d Cir. 1967); Sibert v. Phelan, 901 F. Supp. 183, 185 (D.N.J. 1995) (affirmative defenses may be first raised in motion to dismiss or summary judgment motion).

[6] Most probably, the court would have adhered to the Rules’ spirit that it is preferable that cases be decided on the merits rather than on procedural points. See, e.g., People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 19 FSM R. 88, 92 (Yap 2013); Ramp v. Panuelo, 18 FSM R. 256, 261 (Pon. 2012); Smith v. Nimea, 16 FSM R. 186, 188 (Pon. 2008); FSM Dev. Bank v. Arthur, 13 FSM R. 1, 7-8 (Pon. 2004).

[7] That order also denied the plaintiffs’ request for an entry of default. The plaintiffs contended that they were entitled to a default since Pohnpei had not filed the original answer within twenty days of service. The court denied that request because the plaintiffs did not make their request, and the clerk did not enter a default, before Pohnpei filed its answer. O’Sullivan v. Panuelo, 10 FSM R. 257, 260 (Pon. 2001) (until the clerk enters default, defendant may appear and answer). Since no default judgment can be entered until after the party’s default has been entered, the plaintiffs have no right to a default judgment either.

[8] See FSM Social Sec. Admin. v. Weilbacher, 17 FSM R. 217, 221-24 (Kos. 2010) for a discussion of the sufficiency of points and authorities.

[9] Since the court sees no reason to exclude the prior litigation documents (and the plaintiffs do not offer any), and since, if, on a motion to dismiss, matters outside the pleading are presented to and not excluded by the court, the motion must then be treated as one for summary judgment, FSM Civ. R. 12(b); Gilmete v. Peckalibe, 20 FSM R. 444, 447 (Pon. 2016), Pohnpei’s motion to dismiss for the failure to state a claim would still have been treated as a summary judgment motion. Thus, even if this motion had really been a Rule 12(b) motion, instead of being a summary judgment motion, it would have ended up a summary judgment motion anyway.

1[0] A privy is "[a] person having a legal interest of privity in any action, matter, or property." BLACK’S LAW DICTIONARY 1320 (9th ed. 2009). Privity is "[t]he connection or relationship between two parties, each having a legally recognized interest in the same subject matter (such as a transaction, proceeding, or piece of property)." Id.

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