FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2008‑036

MARY BERMAN and KADALINO DAMARLANE,
Plaintiffs,

vs.

POHNPEI STATE GOVERNMENT and POHNPEI TRANSPORTATION AUTHORITY,
Defendants.
_____________________________________________

ORDER AND MEMORANDUM

Martin G. Yinug
Chief Justice

Decided: October 21, 2011

APPEARANCES:

For the Plaintiffs: Mary Berman, Esq.
P.O. Box 163
Kolonia, Pohnpei FM 96941

For the Defendants: Ira Shiflett, Esq.
(PTA and Pohnpei) Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Declaratory Relief
Since the court may, upon the filing of an appropriate pleading, declare the right and other legal relations of any interested party seeking such declaration, a declaratory judgment is available only upon the filing of an appropriate pleading and not a motion which is distinguished in the rules from a pleading. Berman v. Pohnpei, 18 FSM Intrm. 67, 70 (Pon. 2011).

Civil Procedure - Pleadings
Pleadings are limited to a complaint, an answer, counterclaims, a reply to a counterclaim, a cross-claim, an answer to a cross-claim, a third-party complaint, and a third-party answer and no other pleading will be allowed, except that the court may order a reply to an answer or a third-party answer. Berman v. Pohnpei, 18 FSM Intrm. 67, 70 (Pon. 2011).

Civil Procedure - Motions
The FSM Civil Rule 6(d) requirement of acquiescence is not absolute, particularly where the motion is of a nature that acquiescence would not be forthcoming. When the factual allegations in the movant's supplement to its motion to dismiss satisfies the court that no acquiescence would have been forthcoming, and that any attempt would have been futile, the court will not deny the motion on this ground. Berman v. Pohnpei, 18 FSM Intrm. 67, 71 (Pon. 2011).

Civil Procedure - Motions; Civil Procedure - Summary Judgment
When the court accepts that the motion to dismiss may be properly considered a motion for summary judgment under FSM Civil Rule 56, it will not conjecture why the movant referenced FSM Civil Rule 12(b)(6) although the memorandum of points and authorities that accompanied the motion discussed the legal standard for summary judgment. Berman v. Pohnpei, 18 FSM Intrm. 67, 71-72 (Pon. 2011).

Civil Procedure - Summary Judgment - Grounds
A court must grant a motion for summary judgment if the pleadings, depositions, answers, interrogatories, and admissions on files together with the affidavits, if any, viewed in the light most favorable to the nonmoving party, show that there is no genuine issue as to the material facts and that the moving party is entitled to a judgment as a matter of law. Berman v. Pohnpei, 18 FSM Intrm. 67, 72 (Pon. 2011).

Civil Procedure - Summary Judgment
A request for injunctive relief must fail for lack of grounds upon which it can be granted when it was based on a court order that did not require the defendants to do anything and the preliminary injunction upon which that order relied was later dissolved. Berman v. Pohnpei, 18 FSM Intrm. 67, 72 (Pon. 2011).

Civil Procedure - Pleading
The FSM requires only notice pleading - a complaint need only be a short and plain statement of the claim and give a defendant fair notice of the factual wrong on the basis of the facts asserted. Berman v. Pohnpei, 18 FSM Intrm. 67, 72 (Pon. 2011).

Constitutional Law - Due Process
Government inaction, or even deliberate indifference, is not a due process violation. Berman v. Pohnpei, 18 FSM Intrm. 67, 73 (Pon. 2011).

Attorneys' Fees - Court-Awarded - Statutory; Civil Rights
When the plaintiffs have not alleged facts from which the court can make out a claim against Pohnpei for civil rights violations and when they have not prevailed in their requests for injunctive relief, the court must deny their request for attorney's fees under 11 F.S.M.C. 702(8). Berman v. Pohnpei, 18 FSM Intrm. 67, 73 (Pon. 2011).
Civil Procedure - Injunctions
A motion claiming newly-discovered evidence but that actually alleges the new fact of the addition of the latrine and that seeks relief from an eighteen-month old order that denied injunctive relief is properly a second or renewed motion for injunctive relief, and the court considers the motion as such. Berman v. Pohnpei, 18 FSM Intrm. 67, 73 (Pon. 2011).

Civil Procedure - Injunctions
The court will deny a second or renewed motion for injunctive relief when the addition of a latrine does not change the plaintiffs' likelihood of success on the merits because the court order they rely on was dissolved in 1995 and that dissolution was affirmed on appeal so that their likelihood of success remains at nil; when the addition of the latrine tends to shift the balance of possible injuries further away from the plaintiffs because removing the latrine would represent an additional onus on the defendant while its presence provides a device by which the effluvia of which the plaintiffs complain can be sequestered; when the addition of the latrine tends to help the public interest; and when the addition of the latrine does not increase the injury to the movants although this factor remains in their favor of Berman because the addition of the latrine changes little in the court's weighing of the factors, and what little it changes tends to favor Pohnpei. Berman v. Pohnpei, 18 FSM Intrm. 67, 74 (Pon. 2011).

Civil Procedure - Sanctions
Sanctions will be denied when the supplement complained of was a request for ruling on a renewed motion and it did not cause unnecessary delay because the party seeking sanction spent only one hour and ten minutes in responding to the supplement. Berman v. Pohnpei, 18 FSM Intrm. 67, 74-75 (Pon. 2011).

Civil Procedure - Sanctions
Sanctions will be denied when the arguments complained of were clearly supported by law despite the movants' singular inability to comprehend that. Berman v. Pohnpei, 18 FSM Intrm. 67, 75 (Pon. 2011).

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COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

This matter comes before the court upon five separate motions, two of which were filed after the court's order of July 21, 2010. The outstanding motions in this matter are, in chronological order: (1) the plaintiffs' Motion for Declaratory Judgment, filed February 13, 2009, with a supplement filed April 8, 2009; (2) the defendants' Motion to Dismiss, filed March 23, 2009, with a supplement filed May 18, 2009; (3) the plaintiffs' Motion for Reconsideration of Denial of Plaintiffs' Motion for Injunctive Relief, filed July 7, 2009, and supplemented January 26, 2011; (4) the defendants' untitled motion for sanctions, included as a request for attorney's fees in their February 2, 2011 response to the plaintiffs' supplement to motion for reconsideration; (5) and the plaintiffs' motion for sanctions, filed February 9, 2011.

The court has reviewed the filings, and for the following reasons, grants the defendants' motion to dismiss, and denies all other motions.

I. Background

The plaintiffs, Mary Berman and Kadalino Damarlane (collectively "Berman"), filed the complaint in this matter on October 29, 2008, and requested as relief eight items, six of which relate to injunctive relief against the defendants, the Pohnpei State Government and the Pohnpei Transportation Authority ("Pohnpei"). The subject of the dispute was a berm located at Mesenpal in Awak, U Municipality, in the water across the main circumferential road which runs in front of Berman's home. In addition to the injunctive relief, Berman asked this court to order Pohnpei to compensate Berman as it removes the berms pursuant to the requested injunction, and to award Berman her attorney's fees under the catch-all theory that Pohnpei has violated her civil rights. One month after filing the complaint, Berman filed a motion for injunctive relief, essentially asking for the court to grant six of the eight requests for relief contained in the complaint.

On January 7, 2009, this court denied Berman's motion for injunctive relief; in doing so, it found that, although there was likely to be irreparable injury to Berman, nevertheless, the other factors-likelihood of success on the merits, balance of hardships, and impact on the public interest-weighed against Berman, particularly with regard to likelihood of success on the merits.

The Court notes, notwithstanding Plaintiffs' assertions that Defendants have continued to violate the May 17, 1991 injunction of this Court [sic], and have failed to obtain permits ordered to be obtained by that injunction, it is clear that the injunction was dissolved in 1995. See Damarlane v. United States, 8 FSM Intrm. 45, 50 (App. 1997). In January 1996, Plaintiffs unsuccessfully appealed that dissolution alleging the Trial Court erred in dissolving the injunction.

Order at 5 (Jan. 7, 2009).

Subsequently, the parties engaged in discovery, and filed two substantive motions, each of which was later supplemented: Berman filed a motion for declaratory judgment, and Pohnpei filed a motion to dismiss. One day before a status conference, Berman filed a motion for reconsideration of the January 7, 2009 order denying her original motion for injunctive relief, citing "changed circumstances."

II. Analysis

A. Berman's Motion for Declaratory Judgment

Berman asks this court to declare that Pohnpei, as a holder of an earthmoving permit, has a duty under FSM Earthmoving Regulations and under an order in a different case to remove sedimentation control berms and dikes at the conclusion of dredging operations. The FSM Rules of Civil Procedure provide only that "the court, upon the filing of an appropriate pleading, may declare the right and other legal relations of any interested party seeking such declaration." FSM Civ. R. 57 (emphasis added).

In its opposition to this motion, Pohnpei correctly notes that declaratory judgment is available only upon the filing of an appropriate pleading. Pleadings are limited to a complaint, an answer, counterclaims, a reply to a counterclaim, a cross-claim, an answer to a cross-claim, a third-party complaint, and a third-party answer. FSM Civ. R. 7(a). "No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer." Id. Further, motions are distinguished from pleadings in FSM Civ. R. 7(b).

For this reason, the court denies Berman's Motion for Declaratory Judgment.
B. Pohnpei's Motion to Dismiss

Pohnpei ostensibly brings its Motion to Dismiss under FSM Civ. R. 12(b)(6),1 arguing that Berman has failed to state a claim upon which relief can be granted. Pohnpei argues that the initial complaint in this matter is based on a desire to enforce a dissolved order from a different case, and that once the court has dismissed those requests for relief, the remaining requests do not involve the defendants, only those who operate what Berman claims is an illegal business, as well as those members of the general public who patronize the business. Further, Pohnpei addresses Berman's due process claims by citing an opinion of the Appellate Division which states that "the Due Process Clause . . . does not transform every tort by a state actor into a constitutional violation." Primo v. Pohnpei Trasnp. Auth., 9 FSM Intrm. 407, 412 (App. 2000) (citing DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 202, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989)).2

In opposition, Berman insists that the motion must be denied because it does not contain a certification of acquiescence pursuant to FSM Civil Rule 6(d), and because a Rule 12(b) motion must be made before pleading. Evidently, at this point, Berman does understand that a motion is not a pleading.

1. Rule 6(d) certification

The requirement of acquiescence under FSM Civil Rule 6(d) is not absolute, particularly where the motion is of a nature that acquiescence would not be forthcoming. See, e.g., Fan Kay Man v. Fananu Mun. Gov't, 12 FSM Intrm. 492, 496 (Chk. 2004) (court has discretion to deny a motion for lack of certification of acquiescence, but must deny for a failure to include a memorandum of points and authorities); Tipengeni v. Chuuk, 14 FSM Intrm. 539, 542 (Chk. 2007) (regardless of whether certification requirement is satisfied, court will not deny a motion for an order in aid of judgment on that ground); Smith v. Nimea, 16 FSM Intrm. 186, 188 (Pon. 2008) (court has discretion in deciding whether or not to deny a motion for lack of certification of acquiescence). The factual allegations in Pohnpei's supplement to the motion to dismiss satisfies the court that no acquiescence would have been forthcoming, and that any attempt would have been futile. The court will not deny the motion on this ground.

2. Character of motion

Berman correctly points out that FSM Civil Rule 12(b) indicates that such motions shall be made before pleading. However,

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

FSM Civ. R. 12(b).

Pohnpei's first heading in its Memorandum of Points and Authorities which accompanied the motion to dismiss is "Legal Standard for Summary Judgment." The court will not conjecture as to the reason Pohnpei had referenced FSM Civil Rule 12(b)(6), but accepts that the motion may be properly considered a motion for summary judgment under FSM Civil Rule 56.

3. Summary judgment

A court shall grant a motion for summary judgment if the pleadings, depositions, answers, interrogatories, and admissions on files together with the affidavits, if any, viewed in the light most favorable to the nonmoving party, show that there is no genuine issue as to the material facts and that the moving party is entitled to a judgment as a matter of law. See, e.g., Etscheit v. Adams, 6 FSM Intrm. 365, 373 (Pon. 1994); Bank of Guam v. Island Hardware, Inc., 2 FSM Intrm. 281, 284 (Pon. 1986); FSM v. Ponape Builders Constr. Inc., 2 FSM Intrm. 48, 52 (Pon. 1985).

a. Injunctive relief. The major fact that Berman has attempted to place in issue, not only here but in at least three other civil actions filed in this year alone,3 is the existence of a phantom order. The order Berman harps on was entered on May 17, 1991, in Damarlane v. Pohnpei Transp. Auth., Civil Action No. 1990-075. However, that order did not require the defendants in that case to do anything, other than as a condition for dissolution of an earlier preliminary injunction. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 332 (App. 1992). Further, regardless of whether or not the conditions of the May 17, 1991 order were met, the March 15, 1991 preliminary injunction upon which the May 17, 1991 order relied was dissolved by an order of September 12, 1995, more than four years later. Damarlane v. United States, 8 FSM Intrm. 45, 50 (App. 1997) (trial court affirmed in appeal from that order). Both the Trial Division and the Appellate Division of the Supreme Court of the Federated States of Micronesia have ruled, over the course of at least 14 years, that the May 17, 1991 order ceased to exist no later than October 10, 1995 (when the judgment was entered effecting the dissolution of the March 15, 1991 preliminary injunction as contemplated in the September 12, 1995 order in that matter). As a matter of both fact and law, there is no outstanding May 17, 1991 court order for Berman to latch on to. All of the injunctive relief she requested, therefore, must fail for lack of grounds upon which she could have stated the claims.

Berman's seventh request for relief is an order for Pohnpei to compensate her for noise, dust and inconvenience while it removes the berms. Because this court cannot grant the mandatory injunction, neither can it grant such an order.

b. Civil rights. Berman's final request for relief is her attorney's fees for Pohnpei's alleged denial of her civil rights. This request appears to be a nebulous catch-all with very little factual support. Nevertheless, the FSM requires only notice pleading-a complaint need only be a short and plain statement of the claim and give a defendant fair notice of the factual wrong on the basis of the facts asserted. See, e.g., Adams v. Island Homes Constr., Inc., 11 FSM Intrm. 445, 449 (Pon. 2003); Semwen v. Seward Holdings, Micronesia, 7 FSM Intrm. 111, 113-14 (Chk. 1995).

However, even in taking the pleadings, depositions, answers, interrogatories, and admissions on files together with the affidavits, viewed in the light most favorable to Berman, the court cannot make out an act on the part of the state that constitutes a denial of Berman's civil rights. At most, the court sees non-state actors engaging in activities and behavior which Berman finds distasteful-Berman has not even so much as suggested that Pohnpei has actively instigated such activities and behavior. As Pohnpei correctly points out, government inaction, or even deliberate indifference, is not a due process violation. Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. at 412. Berman's unhappiness with the activities and behavior on the part of the non-state actors sound in tort, and Pohnpei's failure to provide the level of police services Berman desires, as with the failure of the defendant in Primo to warn neighbors of a dredging site of risks associated with the dredging, is neither a denial of Berman's civil rights nor a violation of process due to her.

Further, Berman specifically requests attorney's fees. "In an action [for civil rights violations], the court may award costs and reasonable attorney's fees to the prevailing party." 11 F.S.M.C. 702(8) (emphasis added). Even if the court could have made out proper claims in civil rights, such an award is within the court's discretion, and then only if she had prevailed.

Because Berman has not alleged facts from which the court can make out a claim against Pohnpei for civil rights violations, and because Berman has not prevailed in her requests for injunctive relief, the court must deny Berman's request for attorney's fees.

For the reasons above, the court grants Pohnpei's motion for summary judgment.

C. Berman's Motion for Reconsideration

Because the court grants Pohnpei's motion for summary judgment, it need not rule on Berman's motion for reconsideration. However, in the interest of continuing legal education, the court now turns to the motion, in which Berman asks this court to reconsider its January 7, 2009 denial of her motion for injunctive relief, based on the fact that the trespassers ho are not defendants in this matter ave built an allegedly illegal latrine. Berman reasserts that the May 17, 1991 order in Civil Action No. 1990-075 is still active, and argues in effect that the new facts add to the analysis of irreparable harm. Pohnpei points out in its opposition that the addition of the latrine does not cause Berman irreparable harm. Subsequently, Berman and Pohnpei have engaged in a proverbial pissing contest through the proxy of court filings, culminating in mutual motions for sanctions.

1. The motion is improper

Berman filed the motion as a motion for reconsideration under FSM Civil Rule 60(b), which provides that the court may grant relief from an order for, among other reasons, "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." FSM Civ. R. 60(b)(2) (emphasis added). This rule contemplates newly discovered evidence of existing facts. Berman's motion, however, alleges the new fact of the addition of the latrine.

Further, a motion under FSM Civ. R. 60(b) shall be made within a reasonable time, and a motion under FSM Civ. R. 60(b)(1), (2), and (3) shall be made not more than one year after the judgment, order, or proceeding was entered or taken. FSM Civ. R. 60(b). Berman does not allege that the judgment is void or that the judgment has been satisfied. FSM Civ. R. 60(b)(4), (5). As for FSM Civil Rule 60(b)(6), it is a catch-all that cannot be used to circumvent the one-year time limit for motions under FSM Civ. R. 60(b)(1), (2), and (3), and is reserved for extraordinary circumstances. FSM Dev. Bank v. Arthur, 15 FSM Intrm. 625, 634 (Pon. 2008). Berman filed this motion on July 7, 2010, or eighteen months after the January 7, 2009 order denying her initial motion for injunctive relief.

Thus, Berman's motion is properly a second or renewed motion for injunctive relief, and the court considers the motion as such.

2. The merits of the second or renewed motion for injunctive relief

As in the January 7, 2009 order, the court will discuss, albeit briefly, the four factors: (1) likelihood of success on the merits; (2) balance of possible injuries; (3) the public interest; and (4) irreparable harm to Berman.

First, the addition of the latrine does not change Berman's likelihood of success on the merits. The order to which Berman clutches like a personal totem was dissolved in 1995, and that dissolution was affirmed on appeal. Damarlane v. United States, 8 FSM Intrm. 45 (App. 1997). Berman's likelihood of success remains at nil.

Second, the addition of the latrine tends to shift the balance of possible injuries away from Berman. This court already found that "the loss of access to the reef and ocean through removing the berms would permanently destroy public property." Order at 6 (Jan. 7, 2009). Removing the berm would now require removing the latrine as well, and although this additional expense may be insignificant, it would still represent an additional onus on Pohnpei. Meanwhile, in providing a device by which the effluvia of which Berman complains can be sequestered, the latrine tends to reduce, even if slightly, the unpleasant odors. The balance of possible injuries remains in favor of Pohnpei.

Third, the addition of the latrine tends to help the public interest. Without resolving the question as to its legality, having a latrine is better than not having a latrine, and those members of the public who now enjoy the berm can better enjoy it. Thus, the public interest weighs in favor of Pohnpei.

Fourth, the addition of the latrine does not increase the injury to Berman. This factor continues to weigh in favor of Berman.

The addition of the latrine therefore changes little in the court's weighing of the factors, and what little it changes tends to favor Pohnpei. Therefore, not only does this changed circumstance offer nothing new to warrant reconsideration, but even when considered as a second or renewed motion for injunctive relief, the court's analysis remains much the same as in its January 7, 2009 order.

For these reasons, the court denies Berman's second or renewed motion for injunctive relief.

D. The Motions for Sanctions

Pohnpei and Berman have filed sanctions against each other. Pohnpei fired the first salvo in its February 2, 2011 response to Berman's January 26, 2011 supplement to her motion for reconsideration. Berman filed her opposition to the motion for sanctions, and her own motion for sanctions on February 9, 2011. Pohnpei's primary argument in favor of sanctions against Berman is that the January 26, 2011 supplement was a cut-and-paste job which was "causing unnecessary delay and . . . designed to harass Pohnpei." Defs.' Resp. Supplement Mot. Reconsideration at 3. Berman's primary argument in favor of sanctions against Pohnpei is that Pohnpei is wrong to argue that Berman is barred by the doctrine of res judicata from asserting the continuing operative effect of the May 17, 1991 Order in Civil Action No. 1990-075. Pls.' Mot. Sanctions at 3.

Berman's January 26, 2011 filing, though vexatious to Pohnpei, did not cause unnecessary delay, and the court does not accept that it was designed to harass Pohnpei. Although Berman's counsel has a history of beating the proverbial dead horse, the court views the supplement as a request for ruling on Berman's earlier second or renewed motion for injunctive relief, which the court has now dealt with. Further, the fact that Pohnpei's counsel spent one hour and ten minutes in total on the matter tends to demonstrate that the supplement did not cause unnecessary delay.4 Therefore, the court exercises its discretion and denies Pohnpei's motion for sanctions.

Berman's argument that Pohnpei was incorrect as to the question of res judicata includes the argument that, under Adams v. Island Homes Constr., Inc., 10 FSM Intrm. 466, 474 (Pon. 2001), Pohnpei's arguments in its request for sanctions is a textbook case of a sanctionable argument because those arguments are, in Berman's view, completely opposed to a position taken by an Acting Attorney General eight years ago. In Adams, the court ruled that the defendant bank's argument-that plainly relevant information was irrelevant despite law clearly to the contrary-was sanctionable. Here, the eight-year-old analysis by the Acting Attorney General in a different matter, Civil Action No. 1990-075, contained the following analysis of the question of whether or not the court's decision prohibited continued dredging activities on the subject land: "From the above cited ruling of the Court [now reported as Damarlane v. United States, 8 FSM Intrm. 45 (App. 1997)], since the injunction was dissolved after the Appellees prevail [sic] over the appellants, no injunction can be taken into consideration . . . ." Pls.' Mot. Sanctions, Ex. A at 2. Pohnpei has argued, since Berman touched off the last two years of filings with her February 13, 2009 Motion for Declaratory Judgment, that the May 17, 1991 Order had no legal effect. This is entirely consistent with the Acting Attorney General's January 24, 2003 opinion, to which Berman now refers, and with various decisions, orders, and opinions in both the Trial Division and the Appellate Division of the FSM Supreme Court over the past 14 years. Thus, unlike in Adams, the law clearly supports Pohnpei's arguments, which have been consistent. Berman's singular inability to comprehend the legal status of the May 17, 1991 Order in Civil Action No. 1990-075 reflects an obstinacy that goes beyond zealous advocacy into the realm of insanity in the sense of making the same arguments over and over and expecting a different result. For this reason, the court denies Berman's motion for sanctions.

III. Conclusion

For the foregoing reasons, therefore, the court hereby denies Berman's Motion for Declaratory Judgment; grants Pohnpei's Motion for Dismissal; denies Berman's Motion for Reconsideration; and denies Pohnpei's and Berman's Motions for Sanctions. The court Concludes that Berman is barred by the doctrine of res judicata from further argument that the May 17, 1991 Order in Civil Action No. 1990-075 has a continuing operative effect, orders Berman to refrain from making such argument in this matter in the trial division, and gives notice that violation of this order shall subject Berman, her counsel, or both to sanctions in the amount of $150 or greater and contempt proceedings. Finally, the court dismisses this matter.

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