CHUUK STATE SUPREME COURT
TRIAL DIVISION

Cite as William v. Director of Public Works
11 FSM Intrm. 45 (Chk. S. Ct. Tr. 2002)

[11 FSM Intrm. 45]

ARNINA WILLIAM,
Plaintiff,

vs.

DIRECTOR OF PUBLIC WORKS,
Mr. BALTAZAR BOSSY, et al.
Defendants.

CSSC-CA-NO. 90-99

ORDER DENYING MOTION TO DISMISS

Keske S. Marar
Associate Justice

Decided: June 28, 2002

APPEARANCES:

For the Plaintiff:	Nelson Stephen
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Defendants:	Tony Rosokow
Assistant Attorney General
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

For the Defendant:	Wesley Simina, Esq.
  (Public Utilities)	P.O. Box 94
Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure - Dismissal
A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted must be made before the defendant files its answer to the complaint and when a defendant did not file such a motion until almost seven months after it filed its answer, the motion must be denied on that ground.  William v. Director of Public Works, 11 FSM Intrm. 45, 46-47 (Chk. S. Ct. Tr. 2002).

Civil Procedure - Dismissal; Civil Procedure - Summary Judgment
When it appears that triable issues of fact would still exist that would compel denial of the motion even if the court were to convert the motion from one to dismiss for failure to state a claim to 
[11 FSM Intrm. 46]

one for summary judgment because matter outside the pleadings was included, the court will instead exercise its discretion to set the case for trial at the earliest opportunity.  William v. Director of Public Works, 11 FSM Intrm. 45, 47 (Chk. S. Ct. Tr. 2002).

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COURT’S OPINION

KESKE S. MARAR, Associate Justice:

I.  Procedural History

This action involves a claim for damages for negligence arising out of failure to maintain the sewer system in the Municipality of Weno, Chuuk State.  The principal defendants are Chuuk State and the Chuuk Public Utility Corporation (CPUC), a public corporation created in the 1990s to take over operation and maintenance of the public utilities of the State located in Weno.

The complaint was filed on July 21, 1999.  Chuuk State filed its answer on October 15, 1999, and CPUC filed its answer on October 28, 1999.  Neither defendant filed any motion pursuant to CSSC Civil Rule 12(b) prior to the filing of its answer.

On May 9, 2000, Defendant CPUC filed its "Motion to Dismiss CPUC From Case Under Rule 12(b)."  The motion sought dismissal of the action pursuant on the ground that the complaint failed to state a claim upon which relief could be granted, Chk. Civ. R. 12(b)(6).  Plaintiff filed its opposition to the motion on May 22, 2000.  Defendant Chuuk State filed its opposition to the motion on September 18, 2001.

CPUC based its motion on the turnover agreement between Chuuk State and CPUC.  This agreement, entitled "Agreement Between the Government of Chuuk State and the Chuuk Public Utility Corporation Regarding Transfer of Assets," ("the Agreement") was not attached to the answer of CPUC, but was included as an exhibit to the points and authorities in support of CPUC’s motion.  CPUC contends in its motion that the Agreement provides that only Chuuk State shall be liable for debts arising out of maintenance (or lack thereof) of the sewer system, and that on the basis of the agreement, no claim can be stated against CPUC.  For the reasons stated, the motion to dismiss must be denied.

II.  The Motion Is Not Timely

CSSC Civil Rule 12(b) provides, in pertinent part:

(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading . . . hall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) - (5), (6) failure to state a claim upon which relief can be granted . . . . A motion making any of these defenses shall be made before pleading if a further pleading is permitted.

[11 FSM Intrm. 47]
(emphasis added).  In other words, a motion to dismiss for failure to state a claim upon which relief can be granted, Rule 12(b)(6), must be made before the Defendant files its answer to the complaint.

The record indicates that the motion pursuant to Rule 12(b)(6) was not brought until almost seven months after CPUC filed its answer to the complaint.  Since the motion is not in compliance with the requirements of the rule, it must be denied on that ground.

CSSC Civil Rule 12(b) also provides, however, that

If on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim for which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Defendant CPUC included as an exhibit to its motion the above-mentioned Agreement between Chuuk State and CPUC.  The Court exercises its discretion and decides to exclude the Agreement from its consideration of this motion, rather than to convert the motion to one for summary judgment.

Even if the Court were to convert this motion to one for summary judgment, it appears that triable issues of fact would still exist which would compel denial of such a motion.  The Agreement, specifically sections 302(b) and 303(a), seem to be in conflict regarding the date for assumption by CPUC of liabilities for operation, maintenance and repair of the public utility systems.  It is doubtful that the conflict could be sufficiently resolved to eliminate any triable issue of fact with regard to the placement of liability if any, as between the State and CPUC in this case.  Resolution of this conflict may require the testimony of the parties to the Agreement, and resort to materials not in the record at this time.  Rather than put the parties to the task of gathering evidence and conducting a summary judgment hearing on the issues presented by the Agreement, the better course, given the significant delays in this case to date, appears to be to set this matter for trial at the earliest opportunity.

Wherefore, the motion to dismiss having been filed untimely, and good cause appearing,

it is hereby ordered that the motion of CPUC to dismiss the action against it for failure to state a claim upon which relief can be granted shall be, and it hereby is, denied.

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_________________________________
Footnotes:
1. The Court notes with some dismay the length of time between the filing of the motion and the filing of the opposition by Chuuk State.  The Court expresses its fervent wish that responses to motions be made in a timely manner in the future, so that these matters can be more readily disposed of.