FSM SUPREME COURT
TRIAL DIVISION

CIVIL ACTION NO. 1994-058
PCA No. 81-94

WENDOLIN MENDIOLA, ENERIKO EKIEK,
ADELINO EDMUND, FRANSISCO JOSEPH,
VALERIO PELEP and VINCENT ROSARIO,
Plaintiffs,

vs.

MARY BERMAN, ISO NAHNKEN OF NETT
and JOHN REYES,
Defendants.
__________________________________________

ORDER AND MEMORANDUM OF DECISION

Andon L. Amaraich
Associate Justice

Decided: July 10, 1994

APPEARANCES:

For the Plaintiffs:	Delson Ehmes, Esq.
P.O. Box 1018
Kolonia, Pohnpei FM 96941

For the Defendants:	Mary Berman, Esq.
P.O. Box 163
Kolonia, Pohnpei FM 96941

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HEADNOTES

Federalism - Abstention and Certification
That a defendant files a counterclaim alleging violation of constitutional rights does not in itself make abstention of the case as a whole inappropriate. Mendiola v. Berman (II), 6 FSM Intrm. 449, 450 (Pon. 1994).

Federalism - Abstention and Certification
Deference to state court jurisdiction is warranted in cases involving municipal government issues, given the greater familiarity with such issues at the state level and the greater importance to state interests. Mendiola v. Berman (II), 6 FSM Intrm. 449, 450-51 (Pon. 1994).

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ANDON L. AMARAICH, Associate Justice:

This case was remanded to Pohnpei Supreme Court on June 10, 1994 upon this Court's abstention. Defendants have moved under FSM Civil Rules 59(e) and 60(b)(6) to reconsider the decision to abstain and reassume jurisdiction over the case, or in the alternative to certify all issues concerning purely local matters to the Nett District Court while retaining in this Court only those issues arising under national law. The motion is hereby denied.

The defendants assert that since their counterclaim alleges violation of the FSM Civil Rights Act and the FSM Constitution, specifically article IV, sections 1 and 3, and article V, section 1, the case should be considered as arising under national law. Defendants cite Gimnang v. Yap, 5 FSM Intrm. 13 (App. 1991) for the proposition that this Court should be more reluctant to abstain in cases arising under national law. Defendants urge that the Court should determine whether the entire case presents any claims involving national law, and that in this particular case none of the grounds mentioned in Gimnang favoring deference to state court adjudication are present.

The Court agrees with defendants that in determining whether any issues of national law are presented in a case, all of the pleadings of the parties must be considered. It is also true that the defendants' counterclaim in this action invokes national law. However, this fact alone does not prevent the Court from declining to adjudicate the matter. In Gimnang, the appellate division held that the FSM Supreme Court has the authority to abstain partially or completely from deciding cases which fall within the constitutional jurisdiction of the Court. Id. at 19. The Gimnang court then considered under what circumstances the trial division may do so, noting that the appellate division was not establishing precise standards for all cases but merely identifying some appropriate guidelines. While observing that the national court should exercise greater reluctance to abstain in a case arising under national law, the appellate division acknowledged that "of course, even cases which arise under the national Constitution sometimes call for deference to state courts. For example, courts generally strive to avoid unnecessarily or prematurely issues of national constitutional law." Id. at 21.

In the case at bar the Court believes that exercising jurisdiction over the entire case on the basis of the national law counterclaim of defendants would be premature. Defendants assert in their counterclaim that the alleged violations of defendants' civil and constitutional rights stem from plaintiffs' act of bringing the instant action against them in Pohnpei Supreme Court and other acts of intimidation and harassment. The counterclaim does not state in any detail or specificity how plaintiffs actions have prevented defendants from exercising their constitutional rights. Depending on the procedural disposition of the case, it may not be necessary to adjudicate this issue. The Court takes judicial notice of the fact that while the case was pending previously in Pohnpei Supreme Court, that court denied defendants' motion to dismiss for failure to state a claim upon which relief may be based. Other procedural motions may be brought, however, disposing of some or all of the case and rendering the counterclaim moot.

Second, this Court disagrees with defendants' view that none of the other grounds mentioned in Gimnang favoring deference to state courts exist. Specifically, the Court finds that the case at bar involves areas of law traditionally falling under state authority, namely tort law. The memorandum of decision supporting the June 10 order of abstention cited Edwards v. Pohnpei, 3 FSM Intrm. 350, 359 (Pon. 1988) in support of the effort by state courts to develop tort law to be applied within the respective states. Furthermore, as was also mentioned in the abstention memorandum, the state in this case may be presumed to have a strong interest in matters affecting administration of the Nett District Government. As such the national court should be more hesitant to assume jurisdiction in deference to greater state familiarity with issues concerning municipal government and in light of the considerably greater local public interest in such matters. See Canaday v. Koch, 608 F. Supp. 1460, 1469 (S.D.N.Y.), aff'd, 768 F.2d 501 (2d Cir. 1985) (noting that the importance of a question of predominantly local concern to the state or a political subdivision thereof is a factor favoring federal court abstention).

The trial division in considering abstention must consider and balance policy concerns, prominent among them federalism. Gimnang, 5 FSM Intrm. at 19. For the reasons stated herein and in the earlier memorandum of decision accompanying the abstention order, the Court views this matter as more appropriately decided in the forum in which it was originally brought, Pohnpei Supreme Court. The remand of this case to state court does not, of course, preclude defendants absolutely from having a national court determination of their counterclaim should that become necessary. The Court will not consider defendants' alternative requested relief that the local issues be certified to Nett District Court, but rather deems it proper to leave that decision to the Pohnpei Supreme Court in accordance with its exercise of jurisdiction over the matter.

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