FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2011-3003

FSM DEVELOPMENT BANK,
Plaintiff,

vs.

JOSEPH C. AYIN, PHILLIP AYIN, HENRY GARANGMAW, and JOHN MOOTEB,
Defendants.
__________________________________________ )

ORDER DENYING ATTORNEY'S FEES

Ready E. Johnny
Associate Justice

Decided: February 14, 2012

APPEARANCES:

For the Plaintiff: Nora E. Sigrah, Esq.
P.O. Box M
Kolonia, Pohnpei FM 96941

For the Defendant: Clement Mulalap, Esq.
 (Mooteb) P.O. Box 461
Colonia, Yap FM 96943

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HEADNOTES

Attorney's Fees - Court-Awarded; Costs
While a prevailing plaintiff is entitled to the costs of suit as of course, a prevailing party is not automatically entitled to an attorney's fees award because the court is generally without authority to award attorney's fees in the absence of a specific statute or contractual provision allowing recovery of such fees since attorneys' fees are not costs under Rule 54(d) or the common law. FSM Dev. Bank v. Ayin, 18 FSM Intrm. 190, 192 (Yap 2012).

Attorney's Fees - Court-Awarded
When a defendant was successful in having an action against him in the FSM Supreme Court dismissed without prejudice to any Yap State Court adjudication on the merits of the plaintiff's claims against him, he is not entitled to an attorney fee award under FSM Civil Procedure Rule 54(d). When he does not seek any other expenses that might be considered costs and since he does not cite a statutory or contractual provision that would entitle him to an attorney's fee award, his attorney's fee application must be denied. FSM Dev. Bank v. Ayin, 18 FSM Intrm. 190, 192 (Yap 2012).

Attorney's Fees - Court-Awarded
When a defendant's dismissal was without prejudice, if the plaintiff pursues the matter in the Yap State Court some of the defendant's fees may be recoverable there if he prevails on the merits since some of his attorney's work involved the merits, which the FSM Supreme Court did not consider, but, on the other hand, if the plaintiff were to prevail in the state court on the merits, an award of fees in the FSM Supreme Court might then be inequitable. FSM Dev. Bank v. Ayin, 18 FSM Intrm. 190, 192 (Yap 2012).

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COURT'S OPINION

READY E. JOHNNY, Associate Justice:

This comes before the court on John Mooteb's Application for Attorney's Fees, filed January 19, 2012, and the Plaintiff's Opposition to John Mooteb's Application for Attorney's Fees, filed January 27, 2012. The application is denied. The reasons follow.

Mooteb was successful in having this action against him in this court dismissed without prejudice to any Yap State Court adjudication on the merits of the plaintiff's claims against him. Mooteb seeks an award of his attorney's fees incurred in obtaining that dismissal. He relies on Civil Procedure 54(d) which allows costs to the prevailing party.
While a prevailing plaintiff is entitled to the costs of suit as of course, a prevailing party is not automatically entitled to an attorney's fees award because the court is generally without authority to award attorney's fees in the absence of a specific statute or contractual provision allowing recovery of such fees. Western Sales Trading Co. v. Billy, 13 FSM Intrm. 273, 277 n.1 (Chk. 2005). Attorneys' fees are not costs under Rule 54(d) or the common law. Lewis v. Rudolph, 16 FSM Intrm. 278, 280 (Chk. S. Ct. App. 2009); Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 220, 223 (Chk. S. Ct. App. 2001); DJ Store v. Joe, 14 FSM Intrm. 83, 86 (Kos. S. Ct. Tr. 2006); see alsoCarlos Etscheit Soap Co. v. McVey, 17 FSM Intrm. 427, 441 (App. 2011); Bank of the FSM v. Truk Trading Co., 16 FSM Intrm. 467, 471 (Chk. 2009).

Mooteb is therefore not entitled to an attorney fee award under FSM Civil Procedure Rule 54(d). Mooteb does not seek any other expenses that might be considered costs. Nor does Mooteb cite a statutory or contractual provision that would entitle him to an attorney's fee award. The attorney's fee application must therefore be denied.

The court also notes that Mooteb's dismissal was without prejudice. If the plaintiff chooses to pursue this matter in the Yap State Court some of his fees may be recoverable there if he prevails on the merits since some of his attorney's work involved the merits, which this court did not consider. On the other hand, if the bank were to prevail on the merits an award of fees here might be inequitable.

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