FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2005-014

MARTIN JANO d/b/a MARTIN JANO LAW OFFICES,
Plaintiff,

vs.

KAZUHIRO FUJITA,
Defendant.
___________________________________

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO DISMISS

Andon L. Amaraich
Chief Justice

Decided: October 26, 2007

APPEARANCES:

For the Plaintiff: Joseph S. Phillip, Esq.
P.O. Box 464
Kolonia, Pohnpei FM 96941

For the Defendant: Andrea S. Hillyer, Esq.
P.O. Drawer D
Kolonia, Pohnpei FM 96941

Marstella E. Jack, Esq.
P.O. Box 2210
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure  Dismissal

In ruling on a motion to dismiss, the court must assume the truth of the allegations in the complaint, with the benefit of all reasonable inferences to be given to the plaintiff. Jano v. Fujita, 15 FSM Intrm. 405, 407 (Pon. 2007).

Statutes of Limitation; Torts  Defamation

The two-year statute of limitations applies to causes of action for slander. Jano v. Fujita, 15 FSM Intrm. 405, 408 (Pon. 2007).

Statutes of Limitation

Because the causes of action for libel and interference with contract and prospective economic advantage are not covered in sections 801 to 804 of title 6, the six-year limitation period set forth in section 805 of Title 6 applies to those causes of action. Jano v. Fujita, 15 FSM Intrm. 405, 408 (Pon. 2007).

Statutes of Limitation; Torts  Defamation

Whether a plaintiff's cause of action for slander is time-barred depends on when that cause of action accrued. In general, a cause of action accrues when the right to bring suit on a claim is complete  the true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion. Jano v. Fujita, 15 FSM Intrm. 405, 408 (Pon. 2007).

Common Law

When there is no guidance from FSM case law or statutes, it is appropriate to look to the common law of the United States because United States common law decisions are an appropriate source of guidance for contract and tort issues unresolved by statutes, decisions of constitutional courts here, or custom and tradition in the FSM. Jano v. Fujita, 15 FSM Intrm. 405, 408 (Pon. 2007).

Statutes of Limitation; Torts  Defamation

As a general rule, a cause of action for libel or slander accrues, so as to start the running of limitations, at the time of publication, and not on the date of discovery of the wrong, or when the alleged injury occurred. Jano v. Fujita, 15 FSM Intrm. 405, 408 (Pon. 2007).

Civil Procedure  Judgment on the Pleadings

A court grants judgment on the pleadings if, based on contents of the pleadings alone, it is apparent that either an affirmative defense completely bars the plaintiff's claim, or that the sole defense relied upon by the defendant is insufficient as a matter of law. But when the court will not dismiss two of the plaintiff's causes of action, judgment on the pleadings is not proper. Jano v. Fujita, 15 FSM Intrm. 405, 409 (Pon. 2007).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

Pending before the Court is defendant's motion to dismiss, or in the alternative for judgment on the pleadings, filed on September 7, 2007. Defendant bases his motion on the ground that each of plaintiff's three causes of action (libel, slander, and interference with contract and prospective economic advantage) is time-barred. For the reasons that follow, the Court denies defendant's motion with respect to the causes of action for libel and interference with contract and prospective economic advantage and grants defendant's motion to dismiss with respect to the cause of action for slander.

I. Factual Background

Plaintiff's complaint, filed on June 2, 2005 in Kolonia Town Court  Trial Division and subsequently removed to this Court, contains three causes of action: libel, slander, and interference with contract and prospective economic advantage. The complaint indicates that each of the causes of action stemmed from an October 29, 2002 letter written by defendant and filed with the Pohnpei Supreme Court Chief Justice. Plaintiff states in his opposition to the present motion that he did not learn of the October 29, 2002 letter until formal disciplinary proceedings were initiated in Pohnpei Supreme Court. Plaintiff's opposition indicates that he did not receive notice of the disciplinary proceedings until 2005, when he was served with notice of disciplinary action No. 2-02. A March 2, 2005 order by the Pohnpei Supreme Court (which order is attached to plaintiff's June 30, 2005 opposition to defendant's June 27, 2005 motion to dismiss) indicates that Disciplinary Action No. 2-02 was assigned to Associate Justice Benjamin Rodriguez on January 10, 2005. Justice Rodriguez's order indicates that a hearing was set for March 2, 2005 and that defendant was requested to attend the hearing. On March 1, 2005 defendant wrote another letter to Chief Justice Johnny which retracted the allegations in defendant's October 29, 2002 letter. Justice Rodriguez's March 2, 2005 order dismissed the disciplinary proceedings against plaintiff.

On June 2, 2005, plaintiff filed his complaint.

II. Legal Analysis

Defendant asks the Court to dismiss each of plaintiff's claims. "In ruling on a motion to dismiss, the court must assume the truth of the allegations in the complaint, with the benefit of all reasonable inferences to be given to the plaintiff. Jano v. King, 5 FSM Intrm. 388, 390 (Pon. 1992)." AHPW, Inc. v. FSM, 9 FSM Intrm. 301, 303 (Pon. 2000).

Defendant bases his motion on the ground that each of plaintiff's claims is time-barred. Defendant cites 6 F.S.M.C. 803 in support of his argument. 6 F.S.M.C. 803 states:

The following actions shall be commenced only within two years after the cause of action accrues:

(1)	actions for assault and battery, false imprisonment, or slander;

(2)	actions against a chief of police, policeman, or other person duly authorized to serve process, for any act or omission in connection with the performance of his official duties;

(3)	actions for malpractice, error, or mistake against physicians, surgeons, dentists, medical or dental practitioners, and medical or dental assistants;

(4)	actions for injury to or for the death of one caused by the wrongful act or neglect of another, except as otherwise provided in chapter 5 of this title, or a depositor against a bank for the payment of a forged or raised check, or a check which bears a forged or unauthorized endorsement.

Thus, the two-year statute of limitations applies to causes of action for slander.

6 F.S.M.C. 805 states, "All actions other than those covered in the preceding sections of this chapter shall be commenced within six years after the cause of action accrues." Because the causes of action for libel and interference with contract and prospective economic advantage are not covered in sections 801 to 804 of title 6, the six-year limitation period set forth in section 805 of Title 6 applies to those causes of action. Therefore, the earliest plaintiff's causes of action for libel and interference with contract and prospective economic advantage could have accrued was October 29, 2002, the day defendant filed his letter with the Pohnpei Supreme Court. Even if those causes of action accrued on October 29, 2002, they still would not be time-barred under the six-year limitation period.

Whether plaintiff's cause of action for slander is time-barred depends on when that cause of action accrued. "In general, a cause of action accrues when the right to bring suit on a claim is complete  the true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion." Mid-Pacific Constr. Co. v. Semes, 6 FSM Intrm. 171, 176 (Pon. 1993) (citation and quotations omitted).

Defendant contends plaintiff's slander cause of action accrued on October 29, 2002, the date defendant submitted the letter to the Pohnpei Supreme Court. Plaintiff contends that his slander cause of action did not accrue until early 2005, the first he reportedly learned about the October 29, 2002 letter. The parties have not cited any case law regarding when a slander cause of action accrues, and the Court has not found any FSM case law on point. Where there is no guidance from FSM case law or statutes, it is appropriate to look to the common law of the United States. "Common law decisions of United States are an appropriate source of guidance for this court for contract and tort issues unresolved by statutes, decisions of constitutional courts here, or custom and tradition in the FSM." Semens v. Continental Air Lines, Inc. (I), 2 FSM Intrm. 131, 140 (Pon. 1985).

The general rule under the common law of the United States is that a cause of action for slander accrues at the time of the alleged publication. "As a general rule, a cause of action for libel or slander accrues, so as to start the running of limitations, at the time of publication, and not on the date of discovery of the wrong, or when the alleged injury occurred." 54 C.J.S. Limitations of Actions § 168 (1987). Because plaintiff's cause of action for slander is based on common law, the Court adopts the foregoing general common law rule regarding accrual of a cause of action for slander.

Plaintiff's complaint states that publication of the allegedly slanderous statements took place "on or about October 29, 2002." Complaint ¶¶ 5, 21. Thus, under the rule adopted above, plaintiff's cause of action for slander accrued on October 29, 2002. The two-year limitations period, as set forth in 6 F.S.M.C. 803, expired on October 29, 2004. Plaintiff did not file his complaint until June 2, 2005. Therefore, plaintiff's cause of action for slander is time-barred, and the Court grants defendant's motion to dismiss with prejudice plaintiff's cause of action for slander.

Defendant alternatively moves for judgment on the pleadings. "A court grants judgment on the pleadings if, based on contents of the pleadings alone, it is apparent that either an affirmative defense completely bars plaintiff's claim, or that the sole defense relied upon by defendant is insufficient as a matter of law." Damarlane v. United States, 8 FSM Intrm. 45, 52 (App. 1997). As discussed above, the Court will not dismiss plaintiff's causes of action for libel and interference with contract and prospective economic advantage because they are not time-barred. Thus, judgment on the pleadings is not proper.

III. Conclusion

For the foregoing reasons, the Court denies defendant's motion with respect to the causes of action for libel and interference with contract and prospective economic advantage and grants defendant's motion to dismiss with respect to the cause of action for slander. Accordingly, plaintiff's cause of action for slander is hereby dismissed with prejudice.

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