FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Ambros & Co. v. Board of Trustees
11 FSM Intrm. 333 (Pon. 2003)

[11 FSM Intrm. 333]

AMBROS & COMPANY, INC. and AMBROS SENDA,
Plaintiffs,

vs.

BOARD OF TRUSTEES OF THE POHNPEI PUBLIC
LANDS TRUST, KUINSI ALEXANDER and DOES 1-25,
Defendants.

CIVIL ACTION NO. 2001-036

ORDER GRANTING MOTION TO AMEND COMPLAINT

Andon L. Amaraich
Chief Justice

Decided:  January 24, 2003

APPEARANCES:

For the Plaintiffs:	Salomon Saimon, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

[11 FSM Intrm. 334]

For the Defendant:	Joses Gallen, Esq.
(Board of Trustees)	Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

For the Defendant:	Scott Garvey, Esq.
    (Alexander)		Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Pleadings
A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served.  But if a responsive pleading has been served, a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.  Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 333, 336 (Pon. 2003).

Civil Procedure - Dismissal; Constitutional Law - Case or Dispute - Standing
By not granting a defendant’s motion to dismiss on the grounds that plaintiffs lacked standing, the court does not somehow imply that it, at that stage of the proceedings, has made any findings of ownership or right to possession of the property in question.  Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 333, 336 (Pon. 2003).

Civil Procedure - Pleadings
Rule 15 mandates that leave to amend a party’s pleading shall be freely given by the court.  Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 333, 336 (Pon. 2003).

Civil Procedure - Dismissal; Civil Procedure - Pleadings
A plaintiffs’ attorney’s failure to properly plead their claims is not a sufficient justification to prevent the plaintiffs from being able to bring their claims at all because a complaint should not be dismissed and a party precluded from relief when a plaintiff’s lawyer has misconceived the proper legal theory of the claim.  If the complaint shows that the plaintiff is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief, the complaint is sufficient.  Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 333, 336 (Pon. 2003).

Civil Procedure - Pleadings
When deciding whether justice requires that a plaintiff be permitted to amend its complaint, a trial court must navigate the conflicting principals that litigation must be brought to an end and that justice should be done.  Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 333, 336 (Pon. 2003).

Civil Procedure - Pleadings
Although a defendant’s motion to dismiss certain of plaintiffs’ claims was granted because plaintiffs’ counsel pled claims upon which relief could not be granted, this does not necessarily imply that plaintiffs have no claims against the defendant upon which relief might be granted.  Thus, justice is better served by allowing the plaintiffs to amend their complaint than to preclude them from so doing.  Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 333, 336 (Pon. 2003).

[11 FSM Intrm. 335]

Civil Procedure - Pleadings
A proposed copy of plaintiffs’ first amended complaint, attached as an exhibit to the plaintiffs’ motion to amend complaint, will not be considered by the court to be the plaintiffs’ operative pleading.  When a motion to amend is granted, the plaintiffs must file and serve a separate pleading.  Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 333, 337 & n.3 (Pon. 2003).

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COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

On July 26, 2002, plaintiffs filed a motion to amend complaint.  On July 31, 2002, defendant Kuinsi Alexander filed an opposition to plaintiffs’ motion to amend complaint.  For the reasons stated herein, the court will grant plaintiffs’ motion and will permit plaintiffs to file and serve their amended pleading within ten (10) days of the date of entry of this order.

Background

On June 14, 2002, the court entered an order granting defendant Alexander’s motion to dismiss certain portions of plaintiffs’ complaint.  [Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 17 (Pon. 2002).]  Plaintiffs’ complaint had alleged that defendant Alexander had committed a criminal trespass, a cheating, and a perjury by violating certain provisions of the Pohnpei Crimes Act of 1994.

In its order, the court stated that statutes which do not by their terms provide citizens with a cause of action for money damages cannot be the basis for private damages claims.  The court found that the Pohnpei Crimes Act did not provide a private cause of action to the plaintiffs and that plaintiffs could under no possibility prevail against defendant Alexander on any of the three causes of action against him, and granted defendant’s motion to dismiss.  [Ambros & Co., 11 FSM Intrm. at 25.]

On July 26, 2002, plaintiffs filed a motion to amend their complaint.  Plaintiffs state that they intended to file claims for civil trespass and fraud against defendant Alexander, apparently instead of the criminal charges they pled in their complaint.  Plaintiffs argue that Rule 15(a) of the FSM Rules of Civil Procedure provides that a party may amend him pleading only by leave of court or written consent of the adverse party; and that leave shall be freely given when justice so requires.  Plaintiffs attach a copy of their proposed First Amended Complaint to their motion.

On July 31, 2002, defendant Alexander filed an opposition to plaintiffs’ motion to amend complaint.  Defendant Alexander argues that when requesting leave from the court to amend his pleading, a party must show that justice requires that the pleading be amended.  Since neither defendant consented to plaintiffs’ request to amend their complaint, the burden rests upon plaintiffs to seek the court’s permission to amend their complaint by establishing that justice would be served by permitting the filing of their amended complaint.  However, defendant argues that a review of plaintiffs’ motion to amend shows that plaintiffs have failed to provide the court with any reason why justice would be served by permitting them to file an amended complaint.  Since plaintiffs failed to meet their burden, defendant Alexander argues plaintiffs’ motion to amend should be denied.

On July 31, 2002, plaintiffs filed a reply to defendant Alexander’s motion to amend.  Plaintiffs 

[11 FSM Intrm. 336]

argue that the court, in its June 14, 2002 order, stated that it would "not grant defendant Alexander’s motion to dismiss on the grounds that the assignment from Ms. Gomez to plaintiff Senda was not approved by the Board of Trustees that therefore plaintiffs have no possessory interest in the property and therefore cannot maintain an action for trespass."  Plaintiffs claim that therefore the court is essentially recognizing some "right" of plaintiff Senda.

Analysis

Rule 15(a) of the FSM Rules of Civil Procedure provides that a party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served.  However, if a responsive pleading has been served, a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

The court first wishes to make clear that it disagrees with plaintiffs’ assertion that by refusing to grant defendant Alexander’s motion to dismiss on the grounds that plaintiffs lacked standing that the court is somehow recognizing some "right of plaintiff Senda."  The court by its June 14, 2002 order simply disagreed with defendant Alexander’s argument that plaintiffs lacked standing to bring the claims against him.  [Ambros & Co., 11 FSM Intrm. at 24.]  This does not somehow imply that the court, at this stage of the proceedings, has made any findings of ownership or right to possession of the property in question.

The court is inclined to agree with defendant Alexander’s assertion that plaintiffs have failed to establish that justice requires that the court permit them to amend their complaint.  However, Rule 15 mandates that leave to amend a party’s pleading shall be freely given by the court.  The court believes that plaintiffs, if they were successful in establishing a right to possession of the property, would be permitted to bring a trespass claim against defendant Alexander.  Because plaintiffs’ attorney failed to properly plead their claims does not appear to be a sufficient justification to prevent plaintiffs from being able to bring their claims at all.  The FSM Supreme Court has held that:

A complaint should not be dismissed and a party precluded from relief because a plaintiff’s lawyer has misconceived the proper legal theory of the claim.  If the complaint shows that the plaintiff is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief, the complaint is sufficient.

Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 114 (Chk. 1995).

As with a motion for relief from judgment made under FSM Civil Rule 60(b), when deciding whether justice requires that a plaintiff be permitted to amend its complaint, a trial court must navigate the "conflicting principals that litigation must be brought to an end and that justice should be done."  Mid-Pacific Constr. Co. v. Senda, 7 FSM Intrm. 129, 133 (Pon. 1995).  In this matter, defendant Alexander’s motion to dismiss certain of plaintiffs’ claims was granted because plaintiffs’ counsel pled claims upon which relief could not be granted.  This does not necessarily imply, however, that plaintiffs have no claims against defendant Alexander upon which relief might be granted.  This court believes that justice would be better served by allowing plaintiffs to amend their complaint to bring the claims alleged in their proposed first amended complaint, than to preclude them from so doing at this point in the litigation.

[11 FSM Intrm. 337]

Conclusion

Therefore, plaintiffs’ motion to amend its complaint is hereby granted.  Plaintiffs are ordered to file and serve their amended pleading within ten (10) days of the date of entry of this order.  The filing and service of defendants’ responses to plaintiffs’ amended pleading will be governed by the FSM Rules of Civil Procedure.

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