FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Naka v Simina, 13 FSM Intrm. 460 (Chk. 2005)

HERRY NAKA,
Plaintiff,

vs.

WESLEY SIMINA, in his official capacity as Governor of Chuuk, AUGUSTIN TAKASHY, in his official capacity as Acting Chief Division of Personnel, WILIPINAT BISALEN, in his capacity as Acting Director of Department of Administrative Services, and STATE OF CHUUK,
Defendants

CIVIL ACTION NO. 2005-1021

ORDER DENYING MOTION AND SETTING SCHEDULE

Dennis K. Yamase
Associate Justice

Decided: October 3, 2005

APPEARANCES:

For the Plaintiff:
Camillo Noket, Esq.
Directing Attorney
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Defendants:
Joses Gallen, Esq.
Acting Attorney General
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure - Motions
Failure to oppose a motion is generally deemed a consent to the motion. But even if there is no opposition, the court still needs good grounds before it can grant the motion. Naka v. Simina, 13 FSM Intrm. 460, 461 (Chk. 2005).

Administrative Law - Judicial Review
When the statute provides that disciplinary actions taken in conformance with it shall be in no case subject to review in the courts until the administrative remedies therein have been exhausted, but when the plaintiff’s termination was not the result of a disciplinary action but was either because the plaintiff held a position where he served at the governor’s pleasure or that the proper Public Service System procedures were not used to hire the plaintiff, the lawsuit does not fall within the statute’s reach and the case will not be dismissed for failure to exhaust administrative remedies. Naka v. Simina, 13 FSM Intrm. 460, 461 (Chk. 2005).

Administrative Law - Judicial Review
It is not necessary to exhaust one’s administrative remedies before filing suit when to do so would be futile. Naka v. Simina, 13 FSM Intrm. 460, 461 (Chk. 2005).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

This comes before the court on the defendants’ Motion to Dismiss, filed and served on September 14, 2005. The motion asks that this case be dismissed because the former employee plaintiff has failed to exhaust his administrative remedies and this he must do before a court can have jurisdiction over this wrongful termination case.

No opposition has been filed. Failure to oppose a motion is generally deemed a consent to the motion. Naoro v. Walter, 11 FSM Intrm. 619, 621 (Chk. 2003); FSM Civ. R. 6(d). But even if there is no opposition, the court still needs good grounds before it can grant the motion. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994).

The defendants assert that the court lacks jurisdiction because the plaintiff has not exhausted his administrative remedies before filing suit in court. This ground relies on the Chuuk State Public Service System Act, which provides that "[d]isciplinary actions taken in conformance with this Section shall be in no case subject to review in the courts until the administrative remedies herein have been exhausted." Truk S.L. No. 3-43, § 25(3)(f).

From the pleadings it appears that the plaintiff’s termination was not the result of a disciplinary action. It appears that the ground used for termination was either that the plaintiff held a position where the employee served at the governor’s pleasure and the office was subject to confirmation by the Chuuk Senate or that the proper Public Service System procedures were not used to hire the plaintiff so he did not lawfully hold his position, or both. It does not appear that the plaintiff’s termination was a disciplinary action so that this lawsuit does not fall within the reach of Truk S.L. No. 3-43, § 25(3)(f).

Furthermore, it is not necessary to exhaust one’s administrative remedies before filing suit when to do so would be futile. Dorval Tankship Pty, Ltd. v. Department of Finance, 8 FSM Intrm. 111, 115 (Chk. 1997); Chuuk v. Secretary of Finance, 7 FSM Intrm. 563, 566 n.4 (Pon. 1996); Tomy v. Walter, 12 FSM Intrm. 266, 270 (Chk. S. Ct. Tr. 2003) (when it is clear that any attempt by plaintiff to obtain relief through the Public Service Act would have been futile, the court has jurisdiction to hear the plaintiff’s claims). Based on what appear to be the defendants’ grounds for terminating the plaintiff, it appears that any administrative proceeding would be futile.

There not being good grounds to grant the motion, now therefore it is hereby ordered that the motion to dismiss is denied.

The defendants having answered, this case is now at issue. It is therefore further ordered that the following schedule is hereby set:

1) the parties shall make all their discovery requests by November 7, 2005;

2) all discovery shall be completed by November 30, 2005;

3) all pretrial motions shall be filed by December 16, 2005; and

4) a date for hearing, if needed, pretrial motions shall be set after the motions have been filed.

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