FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Emmanuel v Kansou, 13 FSM Intrm. 527 (Chk. 2005)

ERIMAS EMMANUEL and FAMILY,
Plaintiffs,

vs.

ROOSEVELT KANSOU, CONGRESS OF THE
FSM, and FSM GOVERNMENT,
Defendants.

__________________________________________

CIVIL ACTION NO. 2005-1009

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: December 5, 2005

APPEARANCES:

For the Plaintiff:
Erimas Emmanuel, pro se
P.O. Box 1405
Weno, Chuuk FM 96942

For the Defendants (Congress, FSM):
Keith J. Peterson, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

* * * *

HEADNOTES

Civil Procedure - Motions
Failure to respond to a motion is deemed consent to the granting of the motion. However, in the absence of a response there still must be a basis in law and fact for granting the motion. Emmanual v. Kansou, 13 FSM Intrm. 527, 528 (Chk. 2005).

Civil Procedure - Dismissal
In ruling on a motion to dismiss, the court assumes the truth of the allegations, with all reasonable inferences to be made in the plaintiff’s favor. Emmanual v. Kansou, 13 FSM Intrm. 527, 529 (Chk. 2005).

Jurisdiction - Exclusive FSM Supreme Court
When the FSM Government is a party defendant, the court has subject matter jurisdiction under Article XI, § 6(a) of the Constitution, which provides that the FSM Supreme Court trial division has original and exclusive jurisdiction in cases in which the national government is a party. Emmanual v. Kansou, 13 FSM Intrm. 527, 529 (Chk. 2005).

Civil Procedure - Dismissal
A complaint fails to state a claim against both Congress and the FSM when, accepting as true the fact that Congress provided the funding for the school truck operated by the Chuuk Department of Education, that fact alone is insufficient as a matter of law to confer liability upon either Congress or the FSM for the injury sustained when someone fell off the back of the truck. The alleged injury is too remote. Thus, no relief against the Congress and the FSM could be granted even if the allegations pled in the complaint were proven. The action will therefore be dismissed. Emmanual v. Kansou, 13 FSM Intrm. 527, 529 (Chk. 2005).

* * * *

COURT’S OPINION

MARTIN YINUG, Associate Justice:

On September 6, 2005, the defendants Congress of the FSM and the FSM Government filed their motions to dismiss the complaint pursuant to Rule 12(b) of the FSM Rules of Civil Procedure. Although styled "motions," the court will deem the submission a single motion advancing distinct bases for dismissal. Plaintiffs have filed no response. Failure to respond to a motion is deemed consent to the granting of the motion. FSM Civ. R. 6(d). However, in the absence of a response there still must be a basis in law and fact for granting the motion, Island Cable TV v. Gilmete, 9 FSM Intrm. 264, 266 (Pon. 1999), and that exists here. The motion is granted.

This is an action for wrongful death. The complaint alleges that Foreigner Emmanual, the late son of plaintiff Erimas Emmanuel, died after falling from a school truck operated by the Chuuk state Department of Education. The only allegations in the complaint against the Congress of the FSM (and the only allegations that implicate the FSM Government) are that "[t]he school truck is funded by the Congress of the FSM with senator Roosevelt D. Kansou as the allottee and keeper but is used by the Chuuk school system" (¶4), and that "[t]he Congress of the FSM are aware, or should have been aware of what these trucks would be used for" (¶7).

The motion to dismiss asserts four bases for dismissal under Rule 12(b). In ruling on a motion to dismiss, the court assumes the truth of the allegations, with all reasonable inferences to be made in the plaintiff’s favor. Jano v. King, 5 FSM Intrm. 388, 390 (Pon. 1992).

The first basis for dismissal asserted is that the court lacks subject matter jurisdiction. However, since the FSM Government is a party defendant, the court has subject matter jurisdiction under Article XI, § 6(a) of the FSM Constitution, which provides that the trial division of the FSM Supreme Court has original and exclusive jurisdiction in cases in which the national government is a party.

The court grants the motion based on the third ground urged, which is that the complaint fails to state a claim against both Congress and the FSM. Accepting as true the fact that Congress provided the funding for the school truck operated by the Chuuk Department of Education, that fact alone is insufficient as a matter of law to confer liability upon either Congress or the FSM for the injury sustained. The alleged injury is too remote. Cf. AHPW, Inc. v. FSM, 12 FSM Intrm. 114, 118-19 (Pon. 2003) (holding allotment of $40,000 by the FSM Congress to a pepper growers association insufficient to confer liability on the FSM for anticompetitive practices resulting from the state of Pohnpei’s operation of a pepper processing plant where the purpose of the allotment was in part to purchase equipment for the plant). Thus, no relief against the Congress and the FSM could be granted even if the allegations pled in paragraphs 4 and 7 of the complaint were proven. Nahnken of Nett v. United States, 7 FSM Intrm. 581, 586 (App. 1996). The motion is granted. Congress and the FSM are dismissed with prejudice.

Since the court grants the motion based on plaintiffs’ failure to state a claim, the court will not consider the other points raised by Congress and the FSM in their motion.

[13 FSM Intrm. 541]

* * * *