Sonden v Pohnpei [2020] FMSC 3; 22 FSM R. 465 (Pon. 2020) (29 January 2020)

FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2019-022

ZAIGER SONDEN d/b/a ZJ
CONSTRUCTION COMPANY,
Plaintiff,

vs.

POHNPEI GOVERNMENT,
Defendant.
___________________________________

ORDER DISMISSING THREE CAUSES OF ACTION AND ORDER OF DISMISSAL

Larry Wentworth
Associate Justice

Hearing: January 15, 2020
Decided: January 29, 2020

APPEARANCES:

For the Plaintiff: Salomon M. Saimon, Esq.
P.O. Box 911
Kolonia, Pohnpei FM 96941

For the Defendants: Dana W. Smith, Esq. (motion)
Attorney General
Monaliza Abello-Pangelinan, Esq. (argued)
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Rights - Acts Violating; Contracts - Breach
A breach of contract claim (or an alternative quantum meruit and quantum valebant claim) does not involve the deprivation of preexisting property or the deprivation of statutorily vested property rights, and most certainly does not involve physical injury or deprivation of liberty. Sonden v. Pohnpei, 22 FSM R. 465, 467 (Pon. 2020).

Civil Rights - Acts Violating; Contracts - Breach
Pohnpei’s nonpayment on a contract claim did not deprive the plaintiff of preexisting property or of statutorily vested property rights because his right to payment has not yet been determined and certainly was not protected and had not vested, and not only does the plaintiff not have a protected right, but he also does not allege that Pohnpei government officials had acted to deprive him of the right, and that these officials acted pursuant to governmental policy or custom, or were responsible for final policy making. Sonden v. Pohnpei, 22 FSM R. 465, 467 (Pon. 2020).

Civil Rights - Acts Violating; Contracts - Breach
Previous court decisions have uniformly held that a governmental entity’s breach of contract, without more, does not constitute a due process or a civil rights violation. Sonden v. Pohnpei, 22 FSM R. 465, 467 (Pon. 2020).

Civil Procedure - Dismissal - Before Responsive Pleading; Civil Procedure - Dismissal - Lack of Jurisdiction
When all of the claims upon which the court’s subject-matter jurisdiction is premised are dismissed, under Rule 12(b)(6), for the failure to state a claim for which the court can grant relief, the court will, under Rule 12(b)(1), dismiss without prejudice the remaining state law claims for the lack of subject-matter jurisdiction. Sonden v. Pohnpei, 22 FSM R. 465, 467 (Pon. 2020).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

On January 15, 2020, the court heard the defendant’s Motion to Dismiss Third, Fourth, and Fifth Causes of Action, filed October 8, 2019; and the plaintiff’s Opposition to Motion to Dismiss Third, Fourth, and Fifth Causes of Action, filed November 5, 2019. For the reasons that follow, the motion is granted dismissing the third, fourth, and fifth causes of action, and the remaining two causes of action are also dismissed, but without prejudice.

I. FACTS

The plaintiff, Zaiger Sonden, doing business as ZJ Construction Company, alleges that it had a contract with the defendant, the State of Pohnpei, to build a structure for it, but was not paid for $8,300 of material and labor. During the January 15, 2020 hearing, Sonden’s counsel described the situation as one where Sonden had a contract with the state to build a structure and that this contract was amended to accommodate certain work change orders that were later not paid for because they were not in writing.

Sonden filed suit in this court alleging that Pohnpei had breached its contract or, in the alternative if there was no valid contract, that Pohnpei was liable to him in quantum meruit and quantum valebant for the reasonable value of the unpaid services and goods and materials he had provided the state. To these state law causes of action, Sonden added, based on the same facts, three causes of action under national law - that Pohnpei’s nonpayment violated his FSM constitutional rights of due process and freedom from involuntary servitude and thus also violating the FSM civil rights statute.

Pohnpei moves to dismiss these last three national law causes of action on the ground that they fail to state a claim for which the court may grant relief. It further contends that if its motion is granted, then the state law causes of action can be dismissed without prejudice in order to allow Sonden to pursue his claims in state court.

II. SONDEN’S ARGUMENTS

Sonden contends that his breach of contract claim is consistent with the three types of civil rights claims recognized in Stephen v. Chuuk, 17 FSM R. 453 (App. 2011). In Stephen, the court stated that there were "three kinds of civil rights violations . . . (1) cases ving physical ical injury or deprivation of liberty; (2) cases involving deprivation of preexisting property; (3) cases involving deprivation of statutorily vested property rights, such as entents overnment employmployment."ent." Id. at 462. Sonden argues that his contract claims are analogous to the torts depriving a person of liberty or property and so should "be found within the ambit of civil rights violations." Opp’n to Mot. to Dismiss Third, Fourth, and Fifth Causes of Action at 4 (Nov. 5, 2019).

III. ANALYSIS

The court cannot agree. Taking the facts as pled by Sonden to be true, Sonden’s breach of contract claim (or his alternative quantum meruit and quantum valebant claim) does not involve the deprivation of preexisting property or the deprivation of statutorily vested property rights, and it most certainly does not involve physical injury or deprivation of liberty. Sonden’s claim is for payment due because he fulfilled his part of the bargain but Pohnpei breached its part. Pohnpei’s nonpayment did not deprive Sonden of preexisting property or of statutorily vested property rights. Sonden’s right to payment has not yet been determined and certainly was not protected and had not vested.

Not only does Sonden not have a protected right, but he also does not allege that Pohnpei government officials had acted to deprive him of the right, and that these officials acted pursuant to governmental policy or custom, or were responsible for final policy making. FSM v. GMP Hawaii, Inc., 16 FSM R. 479, 483 (Pon. 2009) (citing Pohnpei v. M/V Miyo Maru No. 11, 8 FSM R. 281, 296 (Pon. 1998)).

When, during the hearing, the court asked plaintiff’s counsel whether it was the plaintiff’s position that all breaches of contract by a state government were civil rights or due process violations under the FSM Constitution, the reply was affirmative. However, previous court decisions have uniformly held that a governmental entity’s breach of contract, without more, does not constitute a due process or a civil rights violation. E.g., Linter v. FSM, 20 FSM R. 553, 558 (Pon. 2016); Stephen v. Chuuk, 18 FSM R. 22, 25 (Chk. 2011); FSM v. GMP Hawaii, Inc., 16 FSM R. 479, 484 (Pon. 2009); Island Dev. Co. v. Yap, 9 FSM R. 18, 20 (Yap 1999); Talley v. Lelu Town Council, 10 FSM R. 226, 237 (Kos. S. Ct. Tr. 2001). The court must therefore grant Pohnpei’s motion and dismiss with prejudice Sonden’s third, fourth, and fifth causes of action for the failure to state a claim. FSM Civ. R. 12(b)(6).

When all of the claims upon which the court’s jurisdiction is premised are dismissed, under Rule 12(b)(6), for the failure to state a claim for which the court can grant relief, the court will, under Rule 12(b)(1), dismiss without prejudice the remaining state law claims for the lack of subject-matter jurisdiction. Otherwise, any plaintiff could have his or her state law claims heard in the FSM Supreme Court by adding spurious national law claims in his or her complaint, and then proceeding on the state law claims after the national law claims had been dismissed under Rule 12(b)(6) for the failure to state a claim.

IV. CONCLUSION

Accordingly, Pohnpei’s motion is granted and the third, fourth, and fifth causes of action are hereby dismissed with prejudice because they fail to state a claim for which the court can grant relief, and the remaining two causes of action - breach of contract and quantum meruit and quantum valebant liability - are dismissed without prejudice to any further action in state court because the FSM Supreme Court lacks subject-matter jurisdiction over those two. This case is now closed.

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