FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2005-1018

HERSIN RUBEN and MORIA RUBEN,
Plaintiffs,

vs.

JOHN PETEWON, individually, 
and in his capacity as Associate Justice of the Chuuk, State Supreme Court, and CHONSY HARTMAN,
Defendants.
_______________________________________________

ORDER GRANTING PARTIAL SUMMARY JUDGMENT

Dennis K. Yamase
Associate Justice

Hearing: April 7, 2008
Decided: May 5, 2008

APPEARANCE:

For the Plaintiff: Stephen V. Finnen, Esq.
P.O. Box 1450	
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure  Motions

Failure to oppose a motion is generally deemed a consent to the motion, but even when there is no opposition, the court still needs good grounds before it can grant the motion. For the court to grant a motion, even if it is unopposed, it must be well grounded in law and fact. Ruben v. Petewon, 15 FSM Intrm. 605, 607 (Chk. 2008).

Civil Rights; Courts  Judges; Torts  Immunity

In order to determine whether a judge is liable for damages for his actions, the court asks whether the judge was performing judicial acts and whether his court had jurisdiction. When the answer to both questions is yes, the judge was not acting in complete absence of all jurisdiction, even when he had clearly acted in excess of his jurisdiction, and the judge was therefore immune from any suit for compensatory or punitive damages for his actions, but that does not end the inquiry. When the plaintiff had obtained permanent prospective injunctive relief against the judge under the civil rights act, it was entitled to the attorney's fees and costs incurred in obtaining that relief in that case, but not for any expenses incurred in the state court case in which the judge had exceeded his jurisdiction even though the FSM Supreme Court had to enjoin him from conducting any further proceedings in it. Ruben v. Petewon, 15 FSM Intrm. 605, 608 (Chk. 2008).

Attorney's Fees; Civil Rights; Costs; Courts  Judges

When the defendant state court judge's actions upon which the plaintiffs base this suit were judicial in nature and the state court is a court of general jurisdiction, which would have had the jurisdiction to consider a motion for relief of judgment if one had been filed, the judge did not act in complete absence of jurisdiction. But when he did clearly act grossly in excess of his jurisdiction and when the plaintiffs obtained permanent prospective relief against him in this case, they are entitled to their expenses including attorney's fees and costs under 11 F.S.M.C. 701(3) for bringing this action and are thus entitled to judgment as a matter of law on their civil rights claim for attorney's fees and costs. The costs and fees allowed will be for work in this case and not that for work in the related state court cases. Ruben v. Petewon, 15 FSM Intrm. 605, 608-09 (Chk. 2008).

Civil Rights; Costs

Reasonable travel costs are allowable when there is a showing that no counsel is available on the island where the litigation took place, but photocopying expenditures are generally disallowed, especially here where it cannot be determined what portion of those expense were incurred in bringing this action, and state court appellate filing fees are also disallowed since they are another court's filing fees and recoverable in that court. Ruben v. Petewon, 15 FSM Intrm. 605, 609 (Chk. 2008).

Civil Procedure  Summary Judgment; Judgments

Although the plaintiffs' summary judgment motion was granted, no judgment will be entered at this time when one cause of action remains outstanding and unadjudicated. Ruben v. Petewon, 15 FSM Intrm. 605, 609 (Chk. 2008).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

The plaintiffs' December 10, 2007 Motion for Summary Judgment, seeking judgment against defendant John Petewon on a civil rights claim, was heard on April 7, 2008. Although ample notice was given, neither defendant filed an opposition and neither defendant appeared.

I.

On July 21, 2005, the plaintiffs, Hersin Ruben and Moria Ruben, filed their complaint, which had four causes of action. The first sought to permanently enjoin Justice John Petewon from taking any further action in Chuuk State Supreme Court Civil Action No. 64-98 and declaratory relief against the defendants as to the parties' rights and liabilities. The second sought a judgment against Justice Petewon for the violation of their civil rights, with attorney's fees and costs. The third, against Chonsy Hartman, sought to collaterally attack and set aside the August 20, 1998 default judgment in No. 64-98. And the fourth sought a judgment against Hartman for abuse of process. Concurrently with the complaint, the Rubens applied for a preliminary injunction to enjoin Justice Petewon from further action in No. 64-98 until the Chuuk State Supreme Court appellate proceedings concerning No. 64-98 ended.

On September 1, 2005, this court issued a preliminary injunction preserving the status quo and enjoining the defendants from taking any further action in Civil Action No. 64-98 until the proceedings initiated in the Chuuk State Supreme Court appellate division have concluded. Ruben v. Petewon, 13 FSM Intrm. 383, 391 (Chk. 2005).

II.

The Rubens sought and obtained relief from the Chuuk State Supreme Court appellate division in the form of a writ of prohibition barring Justice Petewon from any further action in the case, Ruben v. Petewon, 14 FSM Intrm. 177 (Chk. S. Ct. App. 2006), and a reversal of all of the actions that Justice Petewon had taken in No. 64-98, Ruben v. Hartman, 15 FSM Intrm. 100 (Chk. S. Ct. App. 2007). The state appellate court decisions and the relief those decisions granted, made the Rubens' first and third causes of action moot and, in effect, made permanent this court's preliminary injunction. The Rubens then moved, in this case, for summary judgment on their civil rights [second] cause of action against John Petewon.

III.

The Rubens seek summary judgment against Petewon on the ground that, although judicial officers are generally absolutely immune from suit for their exercise of a judicial function, a judicial officer may be held liable for non-judicial acts and for acts that, though judicial in nature, were taken in complete absence of all jurisdiction. The Rubens rely on Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 111 (Chk. 1999) and Jano v. King, 5 FSM Intrm. 388, 391 (Pon. 1992) for this proposition. The Rubens contend that Justice Petewon's actions in Civil No. 64-98 were taken in complete absence of all jurisdiction. The Rubens further contend that even if the actions were not taken in complete absence of all jurisdiction, they are, at a minimum, entitled to their fees and costs for the maintenance of this current action.

No opposition was filed to the motion. Failure to oppose a motion is generally deemed a consent to the motion. FSM Civ. R. 6(d); Naoro v. Walter, 11 FSM Intrm. 619, 621 (Chk. 2003). But even when 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). For the court to grant a motion, even if it is unopposed, it must be well grounded in law and fact. In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 153 (Pon. 1993).

The Rubens contend that Justice Petewon took his actions in complete absence of any jurisdiction. They assert that Justice Petewon deprived them of their civil rights "while acting under color of authority, but without jurisdiction, in the reopening of CSSC No. 64-98 after the case had been dismissed with prejudice, issuing an invalid judgment, and issuing and attempting to enforce postjudgment orders in violation of the Chuuk Judiciary Act and a properly granted stay." Motion for Summary Judgment at 11 (Dec. 10, 2007). They contend that Petewon took all of these actions in complete absence of jurisdiction because no motion for relief from judgment had been filed in No. 64-98 before Petewon unilaterally reopened the case and the case had never been assigned to him, or that if he had had any jurisdiction, he lost it when the first motion to recuse him was filed, or that if he still had any jurisdiction after that, Petewon lost any remaining jurisdiction when he ignored the stay issued by the appellate division and proceeded to issue further orders.

The Rubens contend that "Petewon pursued this case, either in its entirety or at some point, in the total absence of jurisdiction" and ask that they be awarded, for the relevant time period, the attorney's fees and costs incurred in defending this matter. Motion at 15. They incurred $13,320 in attorney's fees and $5,792.64 in costs ($19,112.64 total) in defending their rights since Petewon reopened the matter in January 2005 and ask that they be awarded that sum under 11 F.S.M.C. 701(3).

IV.

In Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 112 (Chk. 1999), the court, in order to determine whether Justice O'Sonis was liable for damages for his actions, asked whether Justice O'Sonis was performing judicial acts and whether his court had jurisdiction. Since the answer to both questions was yes, the court held that Justice O'Sonis was not acting in complete absence of all jurisdiction, but that he had clearly acted in excess of his jurisdiction. Id. Justice O'Sonis was therefore immune from any suit for compensatory or punitive damages for his actions. Id. That did not end the inquiry. Since the Bank of Guam had obtained permanent prospective injunctive relief against Justice O'Sonis under the civil rights act, it was entitled to the attorney's fees and costs incurred in obtaining that relief in that case, but not for any expenses incurred in the state court case in which Justice O'Sonis had exceeded his jurisdiction even though the FSM Supreme Court had to enjoin him from conducting any further proceedings in it. Id. at 113-14.

It is undisputed that Justice Petewon's actions upon which the Rubens base this suit were judicial in nature. The Chuuk State Supreme Court is a court of general jurisdiction. If a motion for relief of judgment had been filed in No. 64-98, that court would have had the jurisdiction to consider it. This court therefore cannot conclude that Justice Petewon acted in complete absence of jurisdiction. He did, however, clearly act grossly in excess of his jurisdiction. The Chuuk State Supreme Court appellate division left no doubt that Justice Petewon's actions in No. 64-98 were in excess of his jurisdiction. Ruben v. Hartman, 15 FSM Intrm. 100 (Chk. S. Ct. App. 2007) (all of Justice Petewon's actions in No. 64-98 reversed or vacated because of lack of jurisdiction or abuse of discretion); Ruben v. Petewon, 14 FSM Intrm. 177 (Chk. S. Ct. App. 2006) (writ of prohibition issued barring any further action by Justice Petewon in No. 64-98).

Since Justice Petewon's actions in No. 64-98 were in excess of his jurisdiction and since the Rubens obtained permanent prospective relief against Justice Petewon in this case, they are entitled to their expenses including attorney's fees and costs under 11 F.S.M.C. 701(3) for bringing this action. O'Sonis, 9 FSM Intrm. at 113. They are entitled to judgment as a matter of law on their civil rights claim for attorney's fees and costs for bringing this action.

Of the 133.2 hours of attorney work billed to the Rubens at $100 per hour for No. 64-98 and all related actions, 20.7 hours are clearly for work in this case. The rest are hours spent working on the Chuuk State Supreme Court cases, both No. 64-98 and the appellate proceedings it spawned. One hundred dollars per hour is a reasonable fee and the time spent on this case is also reasonable. The court therefore holds Petewon liable to the Rubens for $2,070 in attorney's fees.

Of the $4,972.36 in travel expenses incurred by the Rubens' counsel, $678.67 were clearly expended as costs in bringing this action and obtaining prospective relief therein. Reasonable travel costs are allowable when there is a showing that no counsel is available on the island where the litigation took place. Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 26 (App. 1985). Photocopying expenditures are generally disallowed, O'Sonis, 9 FSM Intrm. at 111, especially here where it cannot be determined what portion of those expense were incurred in bringing this action. The state court appellate filing fees are also disallowed since they are another court's filing fees, Estate of Mori v. Chuuk, 10 FSM Intrm. 123, 125 (Chk. 2001), and should be recoverable in that court.

The court therefore awards the Rubens, in their action against John Petewon, the total sum of $2,748.67.

V.

Accordingly, the Rubens' summary judgment motion is granted and John Petewon is liable to them for the sum of $2,748.67. No judgment will be entered at this time because one cause of action remains outstanding and unadjudicated. FSM Civ. R. 54(b). The Rubens shall take such further steps as they may be advised. If none are taken by June 13, 2008, the remaining cause of action (against defendant Chonsy Hartman only) will be dismissed for lack of prosecution. FSM Civ. R. 41(b).

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