FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2007-3009

THE PEOPLE OF THE MUNICIPALITY OF GILMAN,
YAP STATE, by and through
CHIEF GEORGE TAMAGKEN, CHIEF OTTO BOWOO, and CHIEF
GREGORY CHEM,
Plaintiffs,

vs.

THE M/V NATIONWIDE I and THE M/V
NATIONWIDE II, in rem, their engines, masts, bowsprit, boats, anchors, chains, cables, rigging, apparel, furniture and all other necessaries
thereunto appertaining;

and

WOODMAN EASTERLINE SDN. BHD. and
ALEXANDER MAKALUAS,
Defendants.

ORDER CERTIFYING CLASS

Dennis K. Yamase
Associate Justice

Decided: July 23, 2008

APPEARANCES:

For the Plaintiffs: Daniel J. Berman, Esq.
Berman O'Connor & Mann
111 Chalan Santo Papa, Suite 503
Hagatna, Guam 96910

For the Defendants: David Ledger, Esq. (pro hac vice)
Carlsmith Ball LLP
134 West Soledad Avenue, Suite 401
P.O. Box BF
Hagatna, Guam 96932-5027

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HEADNOTES

Civil Procedure  Class Actions
Since each class must have a class representative of its own and must be represented by someone who claims the same injuries as the absent class members, a second class cannot be certified with the same person as class representative as the first class. People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 37 (Yap 2008).

Civil Procedure  Class Actions
The plaintiffs bear the burden of showing that all the requirements for a class action have been met. People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 38 (Yap 2008).

Civil Procedure  Class Actions
Under Civil Procedure Rule 23, all class actions must satisfy all four prerequisites in subsection (a)  numerosity, commonality, typicality, and adequacy of representation  and the requirements of any one of the three parts in subsection (b). The failure to meet any one of these prerequisites will preclude class certification. People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 38 (Yap 2008).

Civil Procedure  Class Actions
A subsection (b)(3) class action can be maintained only if the court finds that the class members' common questions of law or fact predominate and that a class action is superior to other methods of adjudication. People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 38 (Yap 2008).

Custom and Tradition  Yap; Marine Resources
Under Yap traditional rights and ownership of natural resources and marine areas inside the Yap fringing reef  the rights to use and exploit, to the exclusion of all others, the marine resources of particular areas of the submerged lands inside the Yap fringing reef  stem from a concept called a tabinaw. A tabinaw entails rights, duties and obligations for its members, and includes families and households. But a tabinaw is more than a concept. A tabinaw includes an estate in identifiable land and specific areas within the Yap fringing reef within which a tabinaw member can exploit the marine resources. A tabinaw member can only exploit marine resources in the marine area that appertains to his tabinaw. Each village includes a number of tabinaw. People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 38 (Yap 2008).

Civil Procedure  Class Actions; Marine Resources
In a lawsuit for damage to the reef in a Yap municipality, a plaintiff class of all municipal residents is not sufficiently definite when the rights to exploit the reef are vested in only certain tabinaw and the tabinaw's members. People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 38-39 (Yap 2008).

Civil Procedure  Class Actions
When a trial court decides that the class suggested or described in the complaint does not meet the minimum standards of definiteness, the court has the discretion to limit or redefine the class in an appropriate manner to bring the action within Rule 23. People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 39, 41 (Yap 2008).

Civil Procedure  Class Actions
A class action may be maintained only if the class is so numerous that joinder of all members is impracticable. Practicability of joinder depends on the size of the class, ease of identifying members and determining their addresses, facility of making service on members joined and their geographic dispersion. There are no arbitrary rules regarding the size of classes. People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 39 (Yap 2008).

Civil Procedure  Class Actions
When a traditional chief's position in the affected municipality and as a member of an affected tabinaw ought to give him a reasonable basis upon which to fairly accurately estimate the number of affected individuals and he estimates that approximately 232 municipal residents were affected by the loss to the reef and natural resources, the class is too large for practical joinder and the numerosity requirement is satisfied even though there appears to be little or no geographical dispersion. People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 39 (Yap 2008).

Civil Procedure  Class Actions
To satisfy the typicality prerequisite, a class representative must be a member of the class and must possess the same interest and suffer the same injury as the class members. This prerequisite is also inherent in the real party in interest requirement prescribed by Civil Procedure Rule 17(a). People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 39 (Yap 2008).

Civil Procedure  Class Actions
Each named plaintiff must qualify as a class representative on his own merits and will not automatically qualify because another named plaintiff has. People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 39-40 (Yap 2008).

Civil Procedure  Class Actions
The prerequisite that a named plaintiff will fairly and adequately protect the interests of the class is met when the representative shares, without conflict, the interests of the unnamed class members and the court is assured that the representative will vigorously prosecute the rights of the class through qualified counsel. People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 40 (Yap 2008).

Civil Procedure  Class Actions
When a named plaintiff is a member of, or a chief of, any of the one or more tabinaw that claim rights to the allegedly affected reef, that named plaintiff is an adequate class representative and his claims are typical of the class claims. But if only two named plaintiffs are shown to be tabinaw members and there is no averment that a third named plaintiff is a member of an affected tabinaw, the third named plaintiff will be dismissed as a named plaintiff unless satisfactory evidence that the third named plaintiff is an adequate class representative with typical class claims is submitted. People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 40 (Yap 2008).

Civil Procedure  Class Actions
The court is assured that class counsel will vigorously pursue the rights of the class when he has done so in several other maritime tort class actions, and he appears to be otherwise qualified. People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 40 (Yap 2008).

Civil Procedure  Class Actions
For a case to proceed under Rule 23(b)(3), the court must find that the questions in common to the class predominate over those affecting only individual class members. In determining whether the predominance standard is met, the court will focus on the issue of liability, and, if the liability issue is common to the class, common questions will be held to predominate over individual ones, but if there is present a likelihood that significant questions not only of damages but of liability and defenses to liability will arise affecting only individual class members in different ways, class action treatment is inappropriate. People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 40 (Yap 2008).

Civil Procedure  Class Actions
When the plaintiffs' causes of action all involve economic damages allegedly caused by vessels' negligent anchorage on Anoth village reef on May 22-25, 2006, common questions of law and fact predominate the liability issue. Causation and damages can appropriately be proven on a class basis when the basis for each class member's claim is the same. People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 40 (Yap 2008).

Civil Procedure  Class Actions
When the court has certified a class, it will order plaintiffs' counsel to prepare and have approved as to form by defendants' counsel a notice stating that a class has been certified as plaintiffs in the action and defining membership in the class, identifying the action and the court it is in, and advising each class member that the court will exclude the member from the class if the member so requests by a specified date; that the judgment, whether favorable or not, will include all members who do not request exclusion; and that any member who does not request exclusion may, if the member desires, enter an appearance through counsel. The plaintiffs' proposed notice and a proposed order shall require the best notice practicable under the circumstances. People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 41 (Yap 2008).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

On June 13, 2008, the plaintiffs filed their Motion for Class Certification, with a supporting memorandum, affidavit, and exhibit. The defendants filed their opposition on June 23, 2008. The plaintiffs filed a reply on July 14, 2008. A plaintiffs' class is certified as explained below.

I. Plaintiffs' Position

The plaintiffs' verified complaint alleges that, on May 22-25, 2006, the tugboat M/V Nationwide I negligently anchored the barge M/V Nationwide II on the outer reef of Anoth village, Gilman, Yap, at or near an area known as the Magic Kingdom dive site, and damaged about 2,680 square meters of productive reef where the plaintiffs own the rights in common to utilize the marine resources. The named plaintiffs, Chiefs George Tamagken, Otto Bowoo, and Gregory Chem, seek to maintain this case as a class action.

The named plaintiffs seek certification of two classes of plaintiffs: 1) all residents of Gilman who (a) were unable to use the natural resources appertaining to Gilman following reef damage from the M/V Nationwide I and the M/V Nationwide II on May 22 through 25, 2006, and (b) by tradition own in common with other residents the natural resources affected by the incident, including the water column, fish and other sea life, and other affected natural resources; and 2) all residents and members of the unincorporated Municipality of Gilman. The plaintiffs, in their reply, limit their certification request to only the first class, modified to include just those Gilman residents who traditionally own in common with other residents the right to use or exploit the affected natural resources. Reply at 2 (July 14, 2008).

Since each class must have a class representative of its own and must be represented by someone who claims the same injuries as the absent class members, a second class cannot be certified with the same person as class representative as the first class. People of Weloy ex rel. Pong v. M/V CEC Ace, 15 FSM Intrm. 151, 156 (Yap 2007); People of Weloy ex rel. Pong v. M/V Micronesian Heritage, 12 FSM Intrm. 613, 617 (Yap 2004); People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 200 (Yap 2003) (when all the named plaintiffs are members of one class they cannot be class representatives of a second class; certification of the second class must be denied). Since all three named plaintiffs are alleged to represent the same class, only one class can be certified.

II. Class Certification Requirements

The plaintiffs bear the burden of showing that all the requirements for a class action have been met. M/V CEC Ace, 15 FSM Intrm. at 156; M/V Kyowa Violet, 12 FSM Intrm. at 196. Under Civil Procedure Rule 23, all class actions must satisfy all four prerequisites in subsection (a)  numerosity, commonality, typicality, and adequacy of representation  and the requirements of any one of the three parts in subsection (b). The failure to meet any one of these prerequisites will preclude class certification. A subsection (b)(3) class action, as the plaintiffs seek here, can be maintained only if the court finds that the class members' common questions of law or fact predominate and that a class action is superior to other methods of adjudication. M/V CEC Ace, 15 FSM Intrm. at 157; M/V Kyowa Violet, 12 FSM Intrm. at 196; Saret v. Chuuk, 10 FSM Intrm. 320, 321 (Chk. 2001); Lavides v. Weilbacher, 7 FSM Intrm. 591, 593 (Pon. 1996).

The defendants assert that the class as defined by the plaintiffs cannot be certified because, in their view, Gilman Municipality residents do not own the submerged lands or marine resources in common; because the plaintiffs have not shown that the class is too large for practical joinder; because the named plaintiffs have not shown they can fairly and adequately represent the class and that their claims are typical of the class or that they have a colorable claim to the affected submerged lands or resources; and because common questions of law and fact do not predominate over questions affecting only individual members.

III. Analysis

A. Definiteness

The defendants contend that the class cannot be certified because the plaintiffs do not own the reef, the State of Yap does, and imply that therefore under Yap state law only the State of Yap could be a plaintiff in this suit. Regardless of whether the state holds title to the reef, Yap state law preserves, or authorizes, private rights of action for damage to the coral reef and to any part of the natural environment that is important to a coral reef's maintenance. 18 Y.S.C. § 402(c). This contention must therefore be rejected.

The defendants further contend that even if private persons have some ownership interest in the reef and its marine resources, it is not vested in Gilman residents but in tabinaw whose members have exclusive rights to exploit the marine resources in the marine areas that appertain to the tabinaw. The court has previously held that:

Under Yap traditional rights and ownership of natural resources and marine areas inside the Yap fringing reef  the rights to use and exploit, to the exclusion of all others, the marine resources of particular areas of the submerged lands inside the fringing reef around Yap  stem from a concept called a tabinaw. A tabinaw entails rights, duties and obligations for its members, and includes families and households. But a tabinaw is more than a concept. A tabinaw includes an estate in identifiable land and specific areas within the Yap fringing reef within which a tabinaw member can exploit the marine resources. . . . A tabinaw member can only exploit marine resources in the marine area that appertains to his tabinaw. Each village includes a number of tabinaw.

People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 415 (Yap 2006).

The defendants thus object that a plaintiff class of all Gilman residents is not sufficiently definite. The court agrees, as did the plaintiffs by their reply's suggested modification. When a trial court decides that the class suggested or described in the complaint does not meet the minimum standards of definiteness, the court has the discretion to limit or redefine the class in an appropriate manner to bring the action within Rule 23. M/V CEC Ace, 15 FSM Intrm. at 157, 161; M/V Micronesian Heritage, 12 FSM Intrm. at 618. The court therefore can and will redefine the suggested class to include only those residents whose tabinaw membership gives them exclusive exploitation or use rights in the affected reef area, even if the state is ultimately proved to be the titleholder of the reef.

B. Numerosity

The defendants also assert that the plaintiffs have not shown that the suggested class is too large for practical joinder. A class action may be maintained only if the class is so numerous that joinder of all members is impracticable. Practicability of joinder depends on the size of the class, ease of identifying members and determining their addresses, facility of making service on members joined and their geographic dispersion. There are no arbitrary rules regarding the size of classes. M/V CEC Ace, 15 FSM Intrm. at 158; Saret, 10 FSM Intrm. at 322; Lavides, 7 FSM Intrm. at 593-94.

Chief James Limar, of Gilman, avers in his supporting affidavit that "approximately 232 [Gilman] residents were affected by the loss to the reef and natural resources." Aff. J. Limar at 3 (June 13, 2008). The defendants assert that this is not a reasonable estimate of the size of the plaintiff class because there is no explanation of how the plaintiffs arrived at this estimate.

In this case, the M/V Nationwide I and the M/V Nationwide II are alleged to have damaged the outer reef of Anoth village, Gilman. Chief Limar's position as a traditional chief in the affected municipality and a member of an affected tabinaw ought to give him a reasonable basis upon which to fairly accurately estimate the number of affected individuals. Even if his estimate is twice as large, or half as large, as the actual number, the class is too large for practical joinder and the numerosity requirement is satisfied even though there appears to be little or no geographical dispersion since all class members are from Gilman.

C. Typicality and Adequacy

The defendants also contend that the plaintiffs cannot satisfy the typicality and adequacy prerequisites because the three named plaintiffs have not identified themselves as members of the tabinaw(s) allegedly affected by the May 22-25, 2006 anchorage or that they have a cognizable claim to ownership of the part of the reef where the anchorage occurred. The defendants assert that the three chiefs cannot claim to fairly and adequately represent the plaintiff class merely because they are legal representatives of Gilman municipality in some other capacity.

To satisfy the typicality prerequisite, a class representative must be a member of the class and must possess the same interest and suffer the same injury as the class members. M/V CEC Ace, 15 FSM Intrm. at 159; M/V Kyowa Violet, 12 FSM Intrm. at 199. This prerequisite is also inherent in the real party in interest requirement prescribed by Civil Procedure Rule 17(a). M/V CEC Ace, 15 FSM Intrm. at 159.

In this case, if a named plaintiff is a member of, or a chief of, any of the one or more tabinaw that may claim rights to the allegedly affected reef, that named plaintiff is an adequate class representative and his claims are typical of the class claims, but each named plaintiff must qualify as a class representative on his own merits and will not automatically qualify because another named plaintiff has. M/V CEC Ace, 15 FSM Intrm. at 159 & n.3.

The three chiefs' sworn verification of the complaint does not aver that any of the three named chiefs are members of affected tabinaw(s). The verified complaint does aver that all three are Gilman residents. Chief Limar's affidavit further avers that he (Limar) and Chiefs Bowoo and Tamagken are all Gilman residents and members of tabinaw(s) that claim rights to the reef and marine resources that were affected by the May 22-25, 2006 anchorage. Chief Limar's affidavit does not make a similar averment on Chief Chem's behalf.

The prerequisite that a named plaintiff "will fairly and adequately protect the interests of the class is met when the representative shares, without conflict, the interests of the unnamed class members and the court is assured that the representative will vigorously prosecute the rights of the class through qualified counsel." M/V CEC Ace, 15 FSM Intrm. at 159.

The court therefore finds that named plaintiffs Chief George Tamagken and Chief Otto Bowoo are adequate class representatives with claims typical of class members. The court cannot make the same finding with regard to Chief Gregory Chem. The plaintiffs shall have until August 29, 2008, to submit satisfactory evidence that named plaintiff Gregory Chem is an adequate class representative with typical class claims or he will be dismissed as a named plaintiff. The plaintiffs may seek to substitute and qualify another named plaintiff in his place, or to proceed only with the other two named plaintiffs as class representatives.

The court is further assured that class counsel will vigorously pursue the rights of the class since he has done so in several other maritime tort class actions, and he appears to be otherwise qualified, although he does continue to repeat some of the same errors, such as trying to certify two classes with the same persons as class representatives of both.

Class representatives Chiefs George Tamagken and Otto Bowoo thus satisfy the adequacy and typicality prerequisites.

D. Rule 23(b)(3)  Commonality and Predominance

For a case to proceed under Rule 23(b)(3), the court must find that the questions in common to the class predominate over those affecting only individual class members. In determining whether the predominance standard is met, the court will focus on the issue of liability, and, if the liability issue is common to the class, common questions will be held to predominate over individual ones, but if there is present a likelihood that significant questions not only of damages but of liability and defenses to liability will arise affecting only individual class members in different ways, class action treatment is inappropriate. M/V CEC Ace, 15 FSM Intrm. at 160.

The plaintiffs' causes of action all involve economic damages allegedly caused by the anchorage of the M/V Nationwide II by the M/V Nationwide I on Anoth village reef on May 22-25, 2006. The common questions of law or fact include: was the M/V Nationwide II negligently anchored by the M/V Nationwide I to the reef on May 22-25, 2006?; what damage was caused?; what effect did that have on the marine ecosystem and the plaintiffs' use of the affected reef's marine resources?; are the defendants liable for these damages?; and, how to measure those damages. Thus, common questions of law and fact predominate the liability issue. Causation and damages can appropriately be proven on a class basis when the basis for each class member's claim is the same. M/V CEC Ace, 15 FSM Intrm. at 160; M/V Kyowa Violet, 14 FSM Intrm. at 417. The court therefore concludes that common questions of law and fact predominate.

Because of the numerosity of the plaintiff class and the common shared nature of their allegedly affected rights to the reef and its resources, the court also concludes that a class action is superior to other forms of adjudication.

E. Class Defined

Since the four Rule 23(a) prerequisites for a class action and the Rule 23(b)(3) commonality, predominance, and superiority requirements have been met, the court will certify a plaintiff class. When a court decides that the class suggested or described in the complaint does not meet the minimum standards of definiteness, the trial court has the discretion to limit or redefine the class in an appropriate manner to bring the action within Rule 23. M/V CEC Ace, 15 FSM Intrm. at 157, 161; M/V Micronesian Heritage, 12 FSM Intrm. at 618. The court thus certifies the plaintiff class be as follows: those Gilman Municipality residents whose tabinaw membership gives them exclusive rights, in common with other tabinaw members, to use or exploit the natural resources affected by the alleged negligent anchoring of the M/V Nationwide II by the M/V Nationwide I on a portion of the Anoth village outer reef on May 22-25, 2006.

IV. Required Notice to Plaintiff Class

A class having been certified, plaintiffs' counsel shall prepare and have approved as to form by defendants' counsel a notice, in both Yapese and English, stating that a class has been certified as plaintiffs in this action and defining membership in the class, identifying this action and the court it is in, and advising each class member "that (A) the court will exclude the member from the class if the member so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if the member desires, enter an appearance through counsel." FSM Civ. R. 23(c)(2).

The plaintiffs shall submit to the court, by August 29, 2008, the proposed notice and a proposed order requiring "the best notice practicable under the circumstances." Id. This order must include at a minimum, but not be limited to, notice by frequent, periodic announcements on radio station V6AI and on local cable television over a period of two weeks; the posting of copies in the village meeting place in Anoth Village, Gilman, and in any other Gilman municipality village in which there may be tabinaw that claim rights to the affected reef; and the posting of copies in all public places in Yap, such as the courthouse, the post office, and any other places with bulletin boards where public notices may be posted. Counsel may include additional methods of notice designed to effect Rule 23(c)(2).

V. Conclusion

The plaintiff class is certified. The plaintiffs have until August 29, 2008, to qualify Chief Gregory Chem as a class representative, or to substitute and qualify another named plaintiff in his place, if they so choose. They may proceed with only Chief George Tamagken and Chief Otto Bowoo as class representatives. Plaintiffs' counsel shall, by August 29, 2008, prepare a class notice in English and Yapese to be approved as to form by the defendants.

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