FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Mobil Oil Micronesia Incorporation v Helgenberger, 9 FSM Intrm. 295 (Pon.1999)

MOBIL OIL MICRONESIA INC.,
Plaintiff/Counterdefendant,

vs.

BERNARD HELGENBERGER d/b/a
BERNARD'S ENTERPRISES,
Defendant/Counterplaintiff.

__________________________________________

CIVIL ACTION NO. 1999-055

ORDER

Martin Yinug
Associate Justice

Decided: December 30, 1999

APPEARANCES:

For the Plaintiff:
Fredrick Ramp, Esq.
P.O. Box 1480
Kolonia, Pohnpei FM 96941

For the Defendant:
Daniel J. Berman, Esq.
P.O. Box 1491
Kolonia, Pohnpei FM 96941

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HEADNOTE

Civil Procedure - Dismissal; Contracts - Forum Selection Clause
When contracts between the parties provide that any legal proceedings instituted by either party must be filed and heard in the FSM Supreme Court with no other court having jurisdiction and that should the FSM Supreme Court not accept jurisdiction must the parties' dispute be resolved by arbitration, the FSM Supreme Court, not having declined jurisdiction, will not dismiss or stay the case pending arbitration because arbitration is mandated in a dispute arising from the agreements only when the FSM Supreme Court has declined jurisdiction. Mobil Oil Micronesia, Inc. v. Helgenberger, 9 FSM Intrm. 295, 296 (Pon. 1999).

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COURT'S OPINION

MARTIN YINUG, Associate Justice:

As a preliminary matter, the court by order entered September 9, 1999, consolidated Civil Action 1998-049, Mobil Oil Micronesia Inc. v. Bernard Helgenberger d/b/a Bernard's Enterprises, and Civil Action 1999-029, Bernard Helgenberger d/b/a Bernard's Enterprises v. Mobil Oil Micronesia Inc. into the present action, which is Civil Action 1999-055. In Civil Action 1998-049, Mobil Oil Micronesia Inc. ("Mobil") was the plaintiff, and Bernard Helgenberger d/b/a Bernard's Enterprises ("Helgenberger") was the defendant. In Civil Action 1999-029, their roles were reversed. As Mobil was the plaintiff in the first brought case, it seems appropriate in the consolidated case to designate Mobil as plaintiff/ counterdefendant, and Helgenberger as defendant/counterplaintiff. Future filings should be captioned accordingly.

On November 11, 1999, Helgenberger filed his "Motion and Memorandum to Dismiss; or in the Alternative, Stay Proceedings Pending Arbitration and Memorandum of Points and Authorities." On November 11, 1999, Mobil filed its "Opposition to Motion to Dismiss, or in the Alternative Stay Proceedings Pending Arbitration." On December 30, 1999, Helgenberger filed his "Reply Memorandum in Support or Motion to Dismiss or to Stay Proceedings Pending Arbitration."

For the following reasons, Helgenberger's motion is denied.

Helgenberger asserts that this case should either be dismissed, or alternatively stayed pending arbitration. Helgenberger relies on two agreements between the parties, both of which are dated May 1, 1989: the Sublease Agreement, and the Mobil Oil Micronesia, Inc. Service Station Sublease. Attached to both agreements is an Exhibit A, which specifies certain arbitration procedures.

In response to Helgenberger's contention, Mobil points out that paragraph 7 of the Sublease Agreement provides in pertinent part as follows:

7. Judicial Proceedings. It is expressly agreed by the parties hereto that any legal proceedings instituted by either party to enforce rights hereunder shall be filed and heard in the F.S.M. Supreme Court and no other court shall have jurisdiction over such a proceeding. Should the F.S.M. Supreme Court for any reason refuse to accept jurisdiction over such proceedings, the dispute or controversy shall be resolved by arbitration as set for [sic] in Exhibit A attached hereto and incorporated herein by reference. …

The Mobil Oil Micronesia, Inc. Service Station Sublease contains a similar provision, which provides again in pertinent part as follows:

13. Legal Proceedings. It is expressly agreed by the parties hereto that any legal proceedings of any type whatsoever instituted by either party to enforce rights hereunder shall be filed and heard in the F.S.M. Supreme Court and no other court shall have jurisdiction over such a proceeding. However, should that court for any reason decline to accept jurisdiction, then the dispute or controversy shall be resolved by arbitration as set forth in Exhibit "A" attached hereto and incorporated herein by this reference. . . .

Under the terms of both agreements, arbitration is mandated in a dispute arising from the agreements only where this court has declined jurisdiction. Since this court has not declined jurisdiction, the motion is denied.