FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Island Cable TV v Gilmete, 9 FSM Intrm. 264 (Pon. 1999)

ISLAND CABLE TELEVISION,
Plaintiff,

vs.

WILSON GILMETE,
Defendant.

___________________________________

CIVIL ACTION NO. 1995-071

ORDER

Martin Yinug
Associate Justice

Decided: November 23, 1999

APPEARANCES:

For the Plaintiff:
Stephen V. Finnen, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendant:
Andrew Sprenger, Esq.
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Motions
Failure to respond to a motion generally operates as consent to the granting of the motion; at the same time, the motion will not automatically be granted, and must be well grounded in law and fact. Island Cable TV v. Gilmete, 9 FSM Intrm. 264, 266 (Pon. 1999).

Civil Procedure - Motions
A memorandum of points and authorities filed in opposition to a motion should set forth the law upon which the party relies and his theory as to how that law should be applied to the facts of the case. Island Cable TV v. Gilmete, 9 FSM Intrm. 264, 266 (Pon. 1999).

Civil Procedure - Motions
A written motion shall be served with a memorandum of points and authorities, and the moving party's failure to file the memorandum of points and authorities shall be deemed a waiver by the moving party of the motion. Island Cable TV v. Gilmete, 9 FSM Intrm. 264, 266 (Pon. 1999).

Civil Procedure - Motions
The moving party has the same standard as the responding party with respect to the content of the memorandum of points and authorities - it must set forth the applicable law and apply that law to the facts of the case. Island Cable TV v. Gilmete, 9 FSM Intrm. 264, 266 (Pon. 1999).

Civil Procedure - Motions
No bright-line test is appropriate for determining what is a sufficient memorandum of points and authorities under Civil Procedure Rule 6(d) and a court necessarily assesses a memorandum's sufficiency on the facts and law of a given motion. Island Cable TV v. Gilmete, 9 FSM Intrm. 264, 266 (Pon. 1999).

Property - Easements
Although no Trust Territory statute expressly authorizes easements, they are recognized by clear implication in the Trust Territory Code. Island Cable TV v. Gilmete, 9 FSM Intrm. 264, 266 (Pon. 1999).

Federalism - Abstention and Certification
A motion to certify issues to a state court may be denied when there is an absence of legal authority in the movant's memorandum and when the issues are imprecisely and inaccurately defined. Island Cable TV v. Gilmete, 9 FSM Intrm. 264, 266-67 (Pon. 1999).

Federalism - Abstention and Certification
A court is hesitant to initiate the somewhat cumbersome certification procedure until it is satisfied that putative issues raised exist, and that they have been precisely defined. Island Cable TV v. Gilmete, 9 FSM Intrm. 264, 266-67 (Pon. 1999).

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COURT'S OPINION

MARTIN YINUG, Associate Justice:

The court reads Defendant Gilmete's Status Report filed September 24, 1999, to mean that counsel has conferred with his client as required by this court's orders of January 28, 1999, and August 25, 1999, and that his client wishes to proceed on the counterclaims.

Defendant Wilson Gilmete ("Gilmete") points to the pendency of the motion to certify issues to the Pohnpei Supreme Court filed on August 11, 1995. That motion, to which the plaintiff has never responded, proposes certifying three issues to the Pohnpei Supreme Court for determination. As framed by the Gilmete, those issues are:

1. Whether or not there existed easement in the Pohnpei Land Tenure at the time of the purported grants of easement.

2. Whether there is a similar encumbrance or right as easement in the Pohnpei Land Tenure at the time of the purported grants of easement.

3. Whether under the Pohnpei Land Tenure System a public easement or equivalent may be granted without compensation and later assigned by grantee to a third party for a private purpose and for profit?

Failure to respond to a motion generally operates as consent to the granting of the motion; at the same time, the motion will not automatically be granted, and must be well grounded in law and fact. In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 152 (Pon. 1993). A memorandum of points and authorities filed in opposition to a motion should set forth the law upon which the party relies and his theory as to how that law should be applied to the facts of the case. Enlet v. Truk, 3 FSM Intrm. 459, 461 (Truk 1988). From the moving party's perspective, Rule 6(d) of the FSM Rules of Civil Procedure provides that "[a] written motion . . . shall be served with a memorandum of points and authorities," and that "failure by the moving party to file the memorandum of points and authorities shall be deemed a waiver by the moving party of the motion." The court holds the moving party to the same standard as the responding party with respect to the content of the memorandum of points and authorities. In this case, that means that Gilmete's memorandum of points and authorities submitted with his motion must set forth the applicable law and apply that law to the facts of this case so that the court may determine whether issues exist, and whether it is appropriate to certify those issues to the appellate division of the Pohnpei Supreme Court.

Gilmete's memorandum in support of its motion to certify issues consists of a page and a half of text which is appended to the one page motion for certification. Although titled "Memorandum/ Points and Authorities," that fact is not dispositive, and the court looks to the substance of the memorandum.

The last paragraph of the memorandum cites two cases, Edwards v. Pohnpei, 3 FSM Intrm. 350 (Pon. 1988) and Hadley v. Kolonia Town (no citation to the reporter is provided, but see 3 FSM Intrm. 101 (Pon. 1987)) for the proposition that this court has the authority to certify questions to the state court under article XI, section 8 of the FSM Constitution. As to the issues that Gilmete proposes that this court certify to the appellate division of the Pohnpei Supreme Court, defendant merely makes the statement that "there is no such thing as easement in the Pohnpei Land Tenure" and that "the grant of easement is a taking without compensation and violation of the Trustee Agreement." Beyond the amorphous reference to "Pohnpei Land Tenure," and the general reference to the "Trustee Agreement," Gilmete has cited no specific legal authority to support his contention that an easement as a means of conveying an interest in land was not recognized under the law of Pohnpei when the easement was granted, nor has he presented a meaningful application of any such law to the facts. On the certification point, Gilmete contends in one sentence on the first page of his memorandum, without citation to authority, that the issues should be certified because they are "significant local land issues."

No bright-line test is appropriate for determining what is a sufficient memorandum of points and authorities under Rule 6(d) of the FSM Rules of Civil Procedure, and a court necessarily assesses the sufficiency of a memorandum on the facts and law of a given motion.

In the absence of legal authority in the memorandum, the court notes the following. According to the documents attached to the complaint, the easement was granted on April 27, 1970, which was during the Trust Territory Administration. Although the court has not located a Trust Territory statute that expressly authorizes easements, the Trust Territory Code recognizes them by clear implication. For example, 67 TTC 117(c)(2) of the 1970 edition of the Trust Territory Code (§ 1041 of the 1966 Code) provides as follows:

(2) Any easements or other rights appurtenant to the land in question which are over unregistered land shall remain so appurtenant even if not mentioned in the certificate [of title], and shall pass with the land until cut off or extinguished in some lawful manner independent of the determination covered by the certificate.

The court is hesitant to initiate the somewhat cumbersome certification procedure until it is satisfied that putative issues which Gilmete has raised regarding the validity of an easement exist, and that they have been precisely defined. Gilmete's failure to cite specific law in support of his contention that an easement as a form of conveyance was unknown under Pohnpei law on April 27, 1970, the date of the easement conveyance, does nothing to alleviate these concerns.

On a more technical point, as Gilmete now casts the issues, the first two do not include the date of the easement. As to the third issue, there is nothing in the facts as they are now before the court to suggest that the easement in this case was "assigned." In this respect the issues are imprecise and inaccurate.

Accordingly, Gilmete's motion to certify issues to the appellate division of the Pohnpei Supreme Court is denied without prejudice to the defendant's right to renew his motion. Any renewed motion will be filed within 30 days of the entry of this order and be accompanied by a memorandum of points and authorities sufficient under Rule 6(d) of the FSM Rules of Civil Procedure, Enlet v. Truk, 3 FSM Intrm. at 461, and this order. The issues themselves should also be restated in conformance with this order. In the event that Gilmete renews his motion along these lines, the court will then take up the certification question.