FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2018-1004

IRMA APOSTOL, JENELYN MACARAEG,
FREDRICK VALDEVIA, and HOLY FAMILY
ENGLISH CHURCH CHOIR,
Plaintiffs,

vs.

ARNEL MANIQUIZ and ROSALIE GAUANG,
Defendants.
__________________________________________

ORDER OF DISMISSAL (WITHOUT PREJUDICE)

Larry Wentworth
Associate Justice

Decided:  January 7, 2019

APPEARANCES:

For the Plaintiffs:	Johnny Meippen, Esq.
P.O. Box 705
Weno, Chuuk FM 96942

For the Defendants:	Michael J. Sipos, Esq.
P.O. Box 2069
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Motions - Unopposed
When an opposing party has not responded to a motion, that party is, by rule, deemed to have consented to the motion, but even then the court still needs a sound basis in law and in fact on which to grant the motion.  Apostol v. Maniquiz, 22 FSM R. 146, 148 (Chk. 2019).

Jurisdiction - Diversity
Only minimal diversity of citizenship is needed to invoke the FSM Supreme Court’s diversity jurisdiction.  Apostol v. Maniquiz, 22 FSM R. 146, 148 (Chk. 2019).

Business Organizations - Corporations; Jurisdiction - Diversity
A corporation’s citizenship, for diversity purposes, is the citizenship of its shareholders.  Apostol v. Maniquiz, 22 FSM R. 146, 148 (Chk. 2019).

Business Organizations - Corporations; Jurisdiction - Diversity
If a non-profit corporation has no shareholders, its citizenship for diversity purposes should be the citizenship of its members, or, if it has no members, of its incorporators.  Apostol v. Maniquiz, 22 FSM R. 146, 148 (Chk. 2019).

Business Organizations - Partnerships; Jurisdiction - Diversity
If a party is an unincorporated association, then its citizenship is the citizenship of the association’s individual members.  Apostol v. Maniquiz, 22 FSM R. 146, 148 (Chk. 2019).

Jurisdiction - Diversity
Diversity jurisdiction does not exist when all parties are foreign citizens, even if they are citizens of different countries.  Apostol v. Maniquiz, 22 FSM R. 146, 148 (Chk. 2019).

Jurisdiction; Jurisdiction - Diversity
When diversity jurisdiction does not exist, the FSM Supreme Court’s subject-matter jurisdiction must be based on some other ground.  Apostol v. Maniquiz, 22 FSM R. 146, 149 (Chk. 2019).

Torts - Defamation
Defamation is a state law cause of action.  Apostol v. Maniquiz, 22 FSM R. 146, 149 (Chk. 2019).

Civil Rights - Acts Violating; Torts - Defamation
The right not to be defamed, libeled, or slandered is not a right guaranteed by the Constitution or by the civil rights statute.  Apostol v. Maniquiz, 22 FSM R. 146, 149 (Chk. 2019).

Civil Rights - Acts Violating
"Color of law" is the appearance or semblance without the substance of legal right.  Apostol v. Maniquiz, 22 FSM R. 146, 149 n.1 (Chk. 2019).

Civil Rights - Acts Violating; Jurisdiction - Arising Under
When the defendant is not a governmental entity, is not alleged to have acted under color of law, and is not a private person (not acting under color of law) who injured, oppressed, threatened, or intimidated the plaintiff exercising or enjoying or having exercised or enjoyed any civil right, the plaintiff’s claim is not a civil rights claim.  Apostol v. Maniquiz, 22 FSM R. 146, 149 (Chk. 2019).

Constitutional Law - Freedom of Expression
Free speech rights under the Declaration of Rights protection of "freedom of expression" should cover social media communications.  Apostol v. Maniquiz, 22 FSM R. 146, 149 & n.2 (Chk. 2019).

Constitutional Law - Freedom of Expression
"Freedom of expression" encompasses freedom of speech, freedom of the press, and the freedom to communicate.  Apostol v. Maniquiz, 22 FSM R. 146, 149 n.2 (Chk. 2019).

Jurisdiction - Arising Under
The determination of whether a case is one "arising under" the FSM Constitution, national law, or a treaty is derived from the plaintiff’s cause of action and not inferred from any possible defense that is or that might be pled.  Apostol v. Maniquiz, 22 FSM R. 146, 149 (Chk. 2019).

Civil Procedure - Dismissal - Before Responsive Pleading; Civil Procedure - Dismissal - Lack of Jurisdiction
When a court dismisses a case because it lacks subject-matter jurisdiction, the court has no jurisdiction to rule on whether the complaint states a claim that could be granted relief.  Apostol v. Maniquiz, 22 FSM R. 146, 149-50 (Chk. 2019).

Civil Procedure - Dismissal - Lack of Jurisdiction
A dismissal for lack of jurisdiction is without prejudice.  Apostol v. Maniquiz, 22 FSM R. 146, 150 (Chk. 2019).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

This comes before the court on the defendants’ motion to dismiss, filed November 28, 2018.  The defendants ask the court to dismiss this case because the court lacks subject-matter jurisdiction and because the plaintiffs fail to state a claim for which the court can grant relief.  No opposition has been filed.  When an opposing party has not responded to a motion, that party is, by rule, deemed to have consented to the motion, FSM Civ. R. 6(d), but even then the court still needs a sound basis in law and in fact on which to grant the motion.  Aunu v. Chuuk, 18 FSM R. 467, 468 (Chk. 2012).

The plaintiffs allege that the defendants, in some unspecified manner, defamed them and besmirched their reputations on social media, causing shame, mental and emotional anguish, serious anxiety, besmirched reputations, moral shock, sleepless mights, and public humiliation.  The plaintiffs assert that the court has jurisdiction over their claims because of the parties’ diversity of citizenship and because the case involves FSM national laws and the FSM Constitution’s civil rights provisions.

I.  Diversity Jurisdiction

Only minimal diversity of citizenship is needed to invoke the FSM Supreme Court’s diversity jurisdiction.  FSM Dev. Bank v. Estate of Edmond, 19 FSM R. 425, 431 n.2 (App. 2014); Luzama v. Ponape Enterprises Co., 7 FSM R. 40, 48 (App. 1995).  The plaintiffs assert that they meet this requirement because, although all the individual plaintiffs and all the defendants are Republic of the Philippines citizens, the Holy Family English Church Choir "is a local entity organized as a nonprofit . . . Organization under the laws of the State of Chuuk and the Federated States of Micronesia for the Purpose of providing Church choir services."  Compl. ¶ 2 (Nov. 8, 2018).  The court understands this to be a claim that the Holy Family English Church Choir is a Chuukese citizen for diversity purposes.

The complaint does not explain the exact nature of the Holy Family English Church Choir’s organization under Chuuk or FSM law.  If the Choir has been incorporated and the Filipino choir members are shareholders, then the Choir is a Philippine citizen for diversity purposes.  A corporation’s citizenship, for diversity purposes, is the citizenship of its shareholders.  Ehsa v. FSM Dev. Bank, 20 FSM R. 498, 516 (App. 2016); Luzama, 7 FSM R. at 44.  If it is a non-profit corporation that has no shareholders, its citizenship for diversity purposes should be the citizenship of its members, or, if it has no members, of its incorporators.  These all appear to be Philippine citizens.  If the Choir is an unincorporated association, then its citizenship is the citizenship of the association’s individual members.  See Charles Alan Wright, Law of Federal Courts § 27, at 169-70 (5th ed. 1994); see also Island Dev. Co. v. Yap, 9 FSM R. 220, 223-24 (Yap 1999) (general partnership is a foreign citizen for diversity purposes if any ownership interest is held by a foreign citizen).

Thus, the court must conclude that all parties are Philippines citizens, and, as such, no diversity of citizenship exists.  Furthermore, diversity jurisdiction does not exist when all parties are foreign citizens, even if they are citizens of different countries.  Geoffrey Hughes (Export) Pty, Ltd. v. America Ducksan Co., 12 FSM R. 413, 415 (Chk. 2004); Trance v. Penta Ocean Constr. Co., 7 FSM R. 147, 148 (Chk. 1995).  Thus, there is no diversity jurisdiction.

Accordingly, the court must reject the plaintiffs’ contention that the court has diversity jurisdiction.

II.  "Arising Under" Jurisdiction

When diversity jurisdiction does not exist, the FSM Supreme Court’s subject-matter jurisdiction must be based on some other ground.  Kelly v. Lee, 11 FSM R. 116, 117 (Chk. 2002).  The plaintiffs assert that the court has jurisdiction because "the subject matter of this case involves violation of FSM National law and the civil rights provisions of the FSM Constitution . . . ."  Complaint ¶ 1 (Nov. 8, 2018).  They thus contend that the court has jurisdiction because the case arises under the Constitution and national law.

The court must also reject this jurisdictional claim.  Defamation is a state law cause of action.  Zacchini v. Hainrick, 19 FSM R. 403, 411 (Pon. 2014); Smith v. Nimea, 18 FSM R. 36, 45 (Pon. 2011).  The right not to be defamed, libeled, or slandered is not a right guaranteed by the Constitution or by the civil rights statute.  It gives rise to a common law cause of action.

Neither defendant is alleged to be a governmental entity or a private person acting under color of law.1  Private persons not "acting under the color of law" may be held liable, under 11 F.S.M.C. 701(3), for civil rights violations, if they injure, oppress, threaten, or intimidate another in exercising or enjoying or having exercised or enjoyed one’s civil rights, 11 F.S.M.C. 701(1).  When the defendant is not a governmental entity, is not alleged to have acted under color of law, and is not a private person (not acting under color of law) who injured, oppressed, threatened, or intimidated the plaintiff exercising or enjoying or having exercised or enjoyed any civil right, that claim is not a civil rights claim.  Carlos Etscheit Soap Co. v. McVey, 17 FSM R. 102, 110 (Pon. 2010).

Constitutional and civil rights considerations might come into play if the defendants assert, as a defense, their free speech rights under the Declaration of Rights protection of "freedom of expression."  FSM Const. art. IV, § 1.2  Constitutional limitations on defamation actions are defenses against libel or slander actions.  FSM Dev. Bank v. Abello, 18 FSM R. 192, 197 (Pon. 2012); Pohl v. Chuuk Public Utility Corp., 13 FSM R. 550, 557 (Chk. 2005).

However, the determination of whether a case is one "arising under" the FSM Constitution, national law, or a treaty is derived from the plaintiff’s cause of action and not inferred from any possible defense that is or that might be pled.  Saimon v. Nena, 19 FSM R. 608, 611 (Kos. 2014); Enlet v. Bruton, 10 FSM R. 36, 40 (Chk. 2001); see also Ehsa v. FSM Dev. Bank, 20 FSM R. 498, 517 (App. 2016) (issue of law cannot be inferred from an asserted defense).  The court thus does not have "arising under" jurisdiction over this case either.

III.  Conclusion

Accordingly, the court hereby dismisses this case, since it lacks subject-matter jurisdiction.  The court thus has no jurisdiction to rule on whether the complaint states a claim that could be granted relief.  A dismissal for lack of jurisdiction is without prejudice.  FSM Civ. R. 41(b) (dismissal for lack of jurisdiction not a decision on the merits); Waguk v. Waguk, 21 FSM R. 60, 73 (App. 2016); Iwo v. Chuuk, 18 FSM R. 182, 184 (Chk. 2012) (when court does not have any subject-matter jurisdiction, case will dismissed without prejudice).

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