FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Hauk v. Lokopwe, 14 FSM Intrm. 61 (Chk. 2006)

GEORGE T.E. HAUK,
Plaintiff,

vs.

MATHEUS LOKOPWE, in his official capacity and
or individual capacity as acting President of the
COCA board; BERNARD BILLIMONT, in his
individual or official capacity as President of the
COCA board; BOARD OF DIRECTORS; CHUUK
ORGANIZATION FOR COMMUNITY ACTION;
KRISTIAN RAYMOND, in his official and or
individual capacity as the Executive Director of
COCA; CARMINA BILLY, in her official and or
individual capacity as Deputy Executive Director of
COCA; RENSHY SHOTARO, in his individual and
or official capacity as Special Assistant to the
Executive Director; and NISTEN JOKER, in her
official capacity the Neauo center head teacher
and in her individual capacity,
Defendants.

CIVIL ACTION NO. 2004-1033

MEMORANDUM OF DECISION

Dennis K. Yamase
Associate Justice

Trial: September 26, 2005, January 23-25, 27, 2006
Decided: January 27, 2006
Memorandum Entered: February 6, 2006

APPEARANCES:

For the Plaintiff:
George T.E. Hauk, pro se
P.O. Box 1405
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

[14 FSM Intrm. 62]

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HEADNOTES

Civil Procedure
In a prima facie case, a party has produced "enough evidence to allow the fact-finder to infer the fact at issue and rule in the party’s favor. Hauk v. Lokopwe, 14 FSM Intrm. 61, 64 n.1 (Chk. 2006).

Civil Procedure - Dismissal; Judgments
A defendant may, without waiving defendant’s right to offer evidence in the event the motion is not granted, move to dismiss the plaintiff’s case after the plaintiff has completed his case-in-chief on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court must make findings as provided in Rule 52(a). Hauk v. Lokopwe, 14 FSM Intrm. 61, 64 (Chk. 2006).

Civil Procedure - Dismissal
The court must first look to FSM sources of law rather than begin with a review of other courts’ cases, but when an FSM court has not previously construed the involuntary dismissal at the close of the plaintiff’s case-in-chief portion of Civil Rule 41(b) which is identical or similar to the U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule. Hauk v. Lokopwe, 14 FSM Intrm. 61, 64 n.2 (Chk. 2006).

Civil Procedure - Dismissal
On a Rule 41(b) motion to dismiss after presentation of the plaintiff’s case-in-chief, in determining whether the plaintiff has shown a right to relief, the court is not required to view the facts in the light most favorable to the plaintiff but can draw permissible inferences. If the court determines that the plaintiff has not made out a prima facie case - has shown no right to relief, the defendant is entitled to have the plaintiff’s case dismissed. Even if the plaintiff has made out a prima facie case, the court, as the trier of fact, may weigh the evidence, resolve any conflicts in it, and decide for itself where the preponderance of the evidence lies and grant a Rule 41(b) motion to dismiss. Hauk v. Lokopwe, 14 FSM Intrm. 61, 64 (Chk. 2006).

Civil Procedure - Dismissal
If a Rule 41(b) motion is made at the close of the plaintiff’s case, the court may then determine the facts and, if the court concludes that the plaintiff has not made out a case, render judgment against the plaintiff or decline to render any judgment at all until the close of all evidence. If the court dismisses the case after the plaintiff has presented his case-in-chief, the court must make its findings of fact. Hauk v. Lokopwe, 14 FSM Intrm. 61, 64-65 (Chk. 2006).

Civil Procedure - Dismissal
A prima facie case is not always enough to defeat a Rule 41(b) motion to dismiss at the end of plaintiff’s case-in-chief. A plaintiff has failed to present even a prima facie case when on none of his asserted causes of action, did he proffer any evidence as to the amount of damages he allegedly suffered and when he failed to show that any defendant’s alleged wrongful act or

[14 FSM Intrm. 63]

 omission caused damages to him although necessary elements of most of the plaintiff’s causes of action were that a wrongful act caused damages in some amount that the court can reasonably calculate. Causation and reasonably calculable damages must be shown as part of a prima facie case. Hauk v. Lokopwe, 14 FSM Intrm. 61, 65 (Chk. 2006).

Civil Procedure - Dismissal; Constitutional Law - Equal Protection
When a plaintiff complained of a series of acts by various defendants that he felt were discriminatory, that is, that did not treat him in the manner to which he thought he was entitled, but he did not allege, nor did he put on any evidence, that he was discriminated against on the basis of sex, race, ancestry, national origin, language, or social status and no evidence was adduced that any of the acts complained of caused the plaintiff any damages, the court therefore dismissed this cause of action. Hauk v. Lokopwe, 14 FSM Intrm. 61, 65 (Chk. 2006).

Torts - Negligence
Gross negligence has been construed as requiring willful, wanton, or reckless misconduct, or such utter lack of care as will be evidence thereof. Hauk v. Lokopwe, 14 FSM Intrm. 61, 65 (Chk. 2006).

Torts - Negligence
Under Chuuk state law the elements of actionable negligence are the breach of a duty on the part of one person to protect another from injury, and that breach is the proximate cause of an injury to the person to whom the duty is owed. Hauk v. Lokopwe, 14 FSM Intrm. 61, 65 (Chk. 2006).

Torts - Infliction of Emotional Distress
A defendant must exercise due care not to cause others emotional distress that leads in turn to a foreseeable physical result, but when there is no evidence in the record of physical injury to the plaintiff or of any physical manifestation of emotional distress by the plaintiff, no award of damages for can be made for emotional distress. Hauk v. Lokopwe, 14 FSM Intrm. 61, 65 (Chk. 2006).

Civil Procedure - Dismissal; Torts - Infliction of Emotional Distress
When the plaintiff presented no evidence that any of the defendants’ acts that he complained of caused him any physical injury; when he did not present any evidence that any mental anguish or emotional distress he might have had resulted in any physical manifestation and, in fact, presented no evidence at all of any mental anguish or emotional distress on his part; and when he put on no evidence that anyone intended to inflict emotional distress upon him, the court had to dismiss his mental anguish and intentional infliction of emotional distress claims. Hauk v. Lokopwe, 14 FSM Intrm. 61, 66 (Chk. 2006).

Attorneys’ Fees; Civil Rights
Even assuming the pro se plaintiff had successfully prosecuted his discrimination claim
[14 FSM Intrm. 64]

 and sought attorney’s fees under the civil rights statute, the attorney’s fees claim would still have been denied. A prevailing pro se litigant is not entitled to an award of attorney’s fees even if he is an attorney or legal practitioner. Hauk v. Lokopwe, 14 FSM Intrm. 61, 66 (Chk. 2006).

Civil Procedure - Dismissal; Costs
When a case is dismissed at the close of the plaintiff’s case-in-chief, the defendants, as prevailing parties, are entitled to their costs of action. Hauk v. Lokopwe, 14 FSM Intrm. 61, 66 (Chk. 2006).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

At the call of the case on September 26, 2005, the plaintiff, George T.E. Hauk, made his opening argument and then moved for continuance because he was not prepared to go forward. The motion was granted and trial resumed on January 23, 2006. After Hauk finished his case-in-chief and rested on January 25, 2006, the defendants moved to dismiss the case (in what might also be termed a motion for directed verdict), asserting that Hauk had not shown any right to relief on any of the causes of action he alleged in his complaint.

The court then recessed trial and carefully considered the motion to dismiss. On January 27, 2006, the court granted the motion from the bench because Hauk had not made out a prima facie case. This order enters that dismissal and memorializes and further explains the court’s action in compliance with Rule 41(b).

I.

A defendant may, under Rule 41(b), move to dismiss the plaintiff’s case after the plaintiff has completed his case-in-chief.

After the plaintiff has completed the presentation of plaintiff’s evidence, the defendant, without waiving defendant’s right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).

FSM Civ. R. 41(b). In determining whether the plaintiff has shown a right to relief, the court is not required to view the facts in the light most favorable to the plaintiff but can draw permissible inferences. Olsen v. Progressive Music Supply Co., 703 F.2d 432, 436 (10th Cir.), cert. denied, 464 U.S. 866 (1983). If the court determines that the plaintiff has not made out a prima facie case - has shown no right to relief, the defendant is entitled to have the plaintiff’s case dismissed. Even if the plaintiff has made out a prima facie case, the court, as the trier of fact, may "weigh the evidence, resolve any conflicts in it, and decide for itself where the preponderance [of the evidence] lies" and grant a Rule 41(b) motion to dismiss. Sanders v. General Servs. Admin., 707 F.2d 969, 971 (7th Cir. 1983). If a Rule 41(b) motion is made at the

[14 FSM Intrm. 65]

close of the plaintiff’s case, the court may then determine the facts and, if the court concludes that the plaintiff has not made out a case, render judgment against the plaintiff or decline to render any judgment at all until the close of all evidence. Lang v. Cone, 542 F.2d 751, 754 (8th Cir. 1976).

II. Findings of Fact

If the court dismisses the case after the plaintiff has presented his case-in-chief, the court must make its findings of fact. FSM Civ. R. 41(b). The necessary findings follow.

A. Plaintiff’s Pleadings

Hauk’s complaint asserted as causes of action, "a series of discrimination," mental anguish, intentional infliction of emotional distress, and gross negligence. It sought as relief damages of $350,000 for discrimination, $250,000 for mental anguish, a declaration that certain member of the Chuuk Organization for Community Action board of directors were illegal, an order barring the drawdown of U.S. federal funds until certain staff members step down, $100,000 damages for intentional infliction of emotional distress, and $5,000 for the time spent bringing the action to court.

B. Findings and Analysis

Although a prima facie case is not always enough to defeat a Rule 41(b) motion to dismiss at the end of plaintiff’s case-in-chief, Hauk failed to present even a prima facie case. On none of his asserted causes of action, did Hauk proffer any evidence as to the amount of damages he allegedly suffered. Furthermore, he failed to show that any defendant’s alleged wrongful act or omission caused damages to him. Necessary elements of most of Hauk’s causes of action are that a wrongful act caused damages in some amount that the court can reasonably calculate. Causation and reasonably calculable damages therefore must be shown as part of Hauk’s prima facie case. They were not.

Hauk complained of a series of acts by various defendants that he felt were discriminatory, that is, that did not treat him in the manner to which he thought he was entitled. He did not allege, nor did he put on any evidence, that he was discriminated against on the basis of sex, race, ancestry, national origin, language, or social status. Nor was any evidence adduced that any of the acts Hauk complained of caused him any damages. The court therefore rendered judgment against Hauk on this cause of action.

Gross negligence has been construed as "requiring willful, wanton, or reckless misconduct, or such utter lack of care as will be evidence thereof." Prosser and Keeton on the Law of Torts § 34, 212 (5th ed. 1984). Hauk presented no evidence that any defendant’s actions were willful, wanton, or reckless misconduct, or displayed such utter lack of care as to be evidence thereof.

Nor was ordinary negligence shown. Under Chuuk state law the elements of actionable negligence are the breach of a duty on the part of one person to protect another from injury, and that breach is the proximate cause of an injury to the person to whom the duty is owed. Rudolph v. Louis Family, Inc., 13 FSM Intrm. 118, 127 (Chk. 2005); Estate of Mori v. Chuuk, 10 FSM Intrm. 6, 14 (Chk. 2001); Kaminanga v. FSM College of Micronesia, 8 FSM Intrm. 438, 442 (Chk. 1998); Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 65 (Chk. 1997) (summarized as: a duty of care, a breach of that duty, which breach proximately causes damages). Hauk may have shown one act of carelessness - that is, that the one of his son’s Head Start application was lost. He failed to show that this act or omission caused him any damage since

[14 FSM Intrm. 66]

Head Start eventually admitted his son to the program despite the missing application. The court thus rendered judgment against Hauk on his negligence or gross negligence cause(s) of action.

No evidence was presented concerning Hauk’s claims that certain members of the Chuuk Organization for Community Action board of directors were illegal or that its staff members were corrupt. The court concludes that Hauk abandoned his claim for a declaration that certain members of the Chuuk Organization for Community Action board of directors were illegal and for an order barring the drawdown of U.S. federal funds until certain (unnamed) staff members step down.

Hauk alleged both mental anguish and intentional infliction of emotional distress as causes of action. By distinguishing the two, the court can only presume that mental anguish was meant to be negligent infliction of emotional distress.

A defendant must exercise due care not to cause others emotional distress that leads in turn to a foreseeable physical result. Eram v. Masaichy, 7 FSM Intrm. 223, 226-27 (Chk. S. Ct. Tr. 1995). When there is no evidence in the record of physical injury to the plaintiff or of any physical manifestation of emotional distress by the plaintiff, no award of damages for can be made for emotional distress. Narruhn v. Aisek, 13 FSM Intrm. 97, 99 (Chk. S. Ct. App. 2004); Tomy v. Walter, 12 FSM Intrm. 266, 272 (Chk. S. Ct. Tr. 2003); Hauk v. Board of Dirs., 11 FSM Intrm. 236, 241 (Chk. S. Ct. Tr. 2002); Eram, 7 FSM Intrm. at 227; see also Pau v. Kansou, 8 FSM Intrm. 524, 526 (Chk. 1998). Hauk presented no evidence that any of the defendants’ acts that he complained of caused any physical injury to him. Nor did Hauk present any evidence that any mental anguish or emotional distress he might have had resulted in any physical manifestation. In fact, Hauk presented no evidence at all of any mental anguish or emotional distress on his part. Also, Hauk put on no evidence that anyone intended to inflict emotional distress upon him. The court therefore had to dismiss the mental anguish and intentional infliction of emotional distress claims.

Lastly, the court views Hauk’s claim for $5,000 for the time spent bringing the action to court as a request for attorney’s fees. Even assuming Hauk had successfully prosecuted his discrimination claim and sought attorney’s fees under the civil rights statute, the attorney’s fees claim would still have been denied. Hauk prosecuted this action pro se. A prevailing pro se litigant is not entitled to an award of attorney’s fees even if he is an attorney or legal practitioner. Kay v. Ehrler, 499 U.S. 432, 437-38, 111 S. Ct. 1435, 1438, 113 L. Ed. 2d 486, 492-93 (1991). In this case, Hauk did not prevail.

The defendants, as prevailing parties, are entitled to their costs of action. FSM Civ. R. 54(d). Let the clerk enter judgment accordingly.

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