FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Tipingeni v. Chuuk, 14 FSM Intrm. 539 (Chk. 2007)

FANANTIN TIPINGENI, NOKARIA MOSES,

individually and as personal representative of

DICKERSON MOSES TIPINGENI, deceased,

and HERSON MEIT,
Plaintiffs,

vs.

STATE OF CHUUK,
Defendant.

Garnishee.

CIVIL ACTION NO. 2004-1005

ORDER DENYING ISSUANCE OF WRIT AND OF INJUNCTION

Dennis K. Yamase
Associate Justice

Hearing: January 16, 2007
Decided: January 31, 2007

[14 FSM Intrm. 538]

APPEARANCES:

For the Plaintiffs:
Dana W. Smith, Esq.
Smith & Sturdivant
1188 Bishop Street, Century Square, Suite 3108
Honolulu, Hawaii 96813

For the Defendant:
Joses Gallen, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure - Motions; Debtors’ and Creditors’ Rights - Orders in Aid of Judgment
Civil Rule 6(d) provides that all motions shall contain certification by the movant that a reasonable effort has been made to obtain the opposing party’s agreement or acquiescence and that no such agreement has been forthcoming, but a motion for an order in aid of judgment, which is what the court must consider a motion for a writ of garnishment to be, is governed by statute, and that statute does not require that a movant first seek the opposing party’s agreement or acquiescence before moving for an order in aid of judgment. The procedural rules are not meant to alter that statutory scheme. Tipingeni v. Chuuk, 14 FSM Intrm. 539, 542 (Chk. 2007).

Civil Procedure; Separation of Powers; Statutes - Construction
The Constitution permits the Chief Justice to promulgate civil procedure rules, which Congress may amend by statute. Since Congress has the authority to amend or create procedural rules by statute, when Congress has enacted a procedural rule, it is valid. The Chief Justice does not have the authority to amend Congressionally-enacted statutes. Therefore, if the statute applies and the statute and the rule conflict, the statute must prevail. Tipingeni v. Chuuk, 14 FSM Intrm. 539, 542 n.1 (Chk. 2007).

Civil Procedure - Motions
In the case of certain motions, the court, in its discretion, has, and will, overlook the lack of a formal Rule 6(d) certification when it is apparent from the motion’s nature that no agreement would ever be considered by, or forthcoming from, the opposing party and that any attempt to seek such an agreement would be futile. Tipingeni v. Chuuk, 14 FSM Intrm. 539, 542 (Chk. 2007).

Attachment and Execution - Garnishment
When, only after repeated attempts to satisfy those judgments by less drastic measures, writs of garnishment were issued in a civil rights case after over six and a half years had elapsed since judgment and in another civil rights case, in which a writ of garnishment was issued at the same time, after over two years since judgment, but when in the present case, it has only been about four months since the first payment on the consent judgment was due, and since legislative appropriation can be a time-consuming process, the state must be given a reasonable time and opportunity to complete the process and given further opportunity to meet its obligation in some other manner before the plaintiffs can resort to a writ of garnishment. Tipingeni v. Chuuk, 14 FSM Intrm. 539, 543 (Chk. 2007).

[14 FSM Intrm. 539]

Civil Procedure – Injunctions
An injunction barring the plaintiffs from executing on their judgment against property the state owns in Hawaii will be denied when the state has not furnished any authority that what it calls a preliminary injunction can be issued in this circumstance - after a (consent) judgment has been entered and no appeal is pending (or contemplated); when no foreclosure proceeding has been filed in a Hawaii court; when court has insufficient information before it to conclude that the state is likely to succeed on a sovereign immunity defense to foreclosure, which would be determined by Hawaii and U.S. federal law; when, since no foreclosure proceeding has been filed, no injury to the state is yet possible; when, even if the plaintiffs sought foreclosure, the injury alleged is not to the state itself but to non-parties - to patients who would be inconvenienced by having to find other living arrangements; when the balance of possible injuries favors neither side; and when only the public interest factor might favor the state. Thus, even if the court could issue an injunction in this circumstance, the court, balancing the four factors, will conclude they would not favor injunctive relief. Tipingeni v. Chuuk, 14 FSM Intrm. 539, 543-44 (Chk. 2007).

Civil Procedure - Injunctions
The FSM Supreme Court cannot enjoin a Hawaii court. Tipingeni v. Chuuk, 14 FSM Intrm. 539, 544 (Chk. 2007).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

This comes before the court on the plaintiffs’ motion for a writ of garnishment directed to the FSM national government. The motion is denied. The court’s reasons follow.

I. Parties’ Positions

This case arose from the accidental shooting death of a minor, Dickerson Moses Tipingeni, by a Chuuk state police officer. On June 2, 2006, the parties (including defendants Skinory Retonong, Bernes Raslap, and the Governor) stipulated to the dismissal of the first amended complaint and to the entry of a $300,000 consent judgment against the State of Chuuk. The consent judgment provided that $79,857.14 (1/7 of $300,000 plus $37,000 in fees and costs) be paid to the plaintiffs on or before September 1, 2006, and that further payments of $42,857.14 plus accumulated interest be paid every July 1 thereafter through July 1, 2012. The consent judgment further provided that if any payment was missed, the entire unpaid balance became due and payable immediately. Chuuk failed to make the September 1, 2006 payment. Thus, by the consent judgment’s express terms, the entire judgment is now due and payable.

On December 13, 2006, the plaintiffs, relying on Davis v. Kutta, 11 FSM Intrm. 545 (Chk. 2003), moved for a writ of garnishment directed to the national government, to garnish funds held by it which it has collected as income or import taxes and which, pursuant to the Constitution, FSM Const. art. IX, § 5, must be paid over to the state where collected. The motion was served on the national government but it has neither responded nor appeared.

Chuuk opposes garnishment on the grounds that the plaintiffs did not comply with Civil Rule 6(d) and seek its agreement or acquiescence to the motion and that the motion did not contain the required Rule 6(d) certification to that effect; that 6 F.S.M.C. 707 prohibited garnishment of funds held by the national government to satisfy an obligation of a state to a third party; and that the court’s ruling in Barrett v. Chuuk, 14 FSM Intrm. 509, 511 (Chk. 2006) barred the writ’s issuance.

[14 FSM Intrm. 540]

Chuuk’s opposition also contains its own motion for injunctive relief, which asks that the plaintiffs be enjoined from enforcing the consent judgment by foreclosing on property that Chuuk owns in Honolulu, Hawaii.

II. Rule 6(d)

Civil Rule 6(d) provides, in pertinent part, that "[a]ll motions shall contain certification by the movant that a reasonable effort has been made to obtain the agreement or acquiescence of the opposing party and that no such agreement has been forthcoming." Chuuk, relying on Calvary Baptist Church v. Pohnpei Bd. of Land Trustees, 9 FSM Intrm. 238, 239 (Pon. 1999) (denial without prejudice of motions that did not contain Rule 6(d) certification), contends that the plaintiffs’ motion should be denied because it does not contain a Rule 6(d) certification. The plaintiffs contend that their motion’s allegations and counsel’s affidavit that after the September 1, 2006 due date had passed they had made efforts to get Chuuk to make that payment before filing the motion should be sufficient to comply with Rule 6(d), and, that if it was not, their counsel’s later affidavit which mimicked Rule 6(d)’s language was adequate compliance.

A motion for an order in aid of judgment, which is what the court must consider a motion for a writ of garnishment to be, is governed by statute, 6 F.S.M.C. 1409 et seq. That statute does not require that a movant first seek the opposing party’s agreement or acquiescence before moving for an order in aid of judgment. The procedural rules are not meant to alter that statutory scheme. Furthermore, the court has previously ruled that in the case of certain motions, the court, in its discretion, has, and will, overlook the lack of a formal certification when it is apparent from the motion’s nature that no agreement would ever be considered by, or forthcoming from, the opposing party and that any attempt to seek such an agreement would be futile. Fan Kay Man v. Fananu Mun. Gov’t, 12 FSM Intrm. 492, 496 & n.3 (Chk. 2004). The court cannot conceive that Chuuk would have acquiesced to the plaintiffs garnishing $337,000 in state funds from the national government.

Accordingly, regardless of whether the plaintiffs satisfied Rule 6(d)’s certification requirement, a question the court does not decide, the court will not deny the plaintiffs’ motion on this ground.

III. Other Grounds

A. Barrett v. Chuuk

Chuuk contends that the court’s recent ruling in Barrett v. Chuuk, 14 FSM Intrm. 509 (Chk. 2006) bars the writ’s issuance. In Barrett, the court was reluctant to extend the right to a writ of garnishment beyond that affirmed by the appellate division in Chuuk v. Davis, 13 FSM Intrm. 178, 186 (App. 2005) which took no position on whether plaintiffs whose damages from civil rights violations are strictly economic in nature may satisfy their judgments through writs of garnishment and ruled that a writ of garnishment was not available because Barrett’s injury was strictly economic. Barrett, at 511. The plaintiffs correctly point out that this case is not one of solely economic injury as was Barrett. Unlike Barrett, and similar to Davis v. Kutta, this case involved physical injury as the result of a state police officer’s wrongful use of his firearm.

[14 FSM Intrm. 541]

In Davis, however, over six and a half years had elapsed since judgment had been entered before the writ of garnishment was issued, Davis v. Kutta, 11 FSM Intrm. 545, 549 (Chk. 2003), and in another case in which a writ of garnishment was issued at the same time, Estate of Mori v. Chuuk, 11 FSM Intrm. 535 (Chk. 2003), it had been over two years. In the present case, it has only been about four months since the first payment on the consent judgment was due.

Legislative appropriation can be a time-consuming process. Chuuk must be given a reasonable time and opportunity to complete the process. In Davis (and Estate of Mori), a writ of garnishment issued only after repeated attempts to satisfy those judgments by less drastic measures. The court therefore concludes that in this case, Chuuk must be given further opportunity to meet its obligation in some other manner before the plaintiffs can resort to a writ of garnishment.

B. 6 F.S.M.C. 707

Chuuk also contends that 6 F.S.M.C. 707 bars the issuance of the writ sought by the plaintiffs. In Davis v. Kutta, 11 FSM Intrm. 545, 549 (Chk. 2003), the court held that "6 F.S.M.C. 707, which prohibits the garnishment of funds owed by the FSM to a state is unconstitutional as it applies to the judgment for a violation of civil rights" because it effectively eliminated "the only means of securing a reasonably expeditious satisfaction of the [plaintiff’s] judgment." The Davis court therefore issued a writ of garnishment. On appeal, Chuuk "neither briefed nor argued that part of the trial court’s order holding 6 F.S.M.C. 707 unconstitutional as it applies to a judgment for violations of civil rights," so the appellate court, in affirming the writ’s issuance, held that this issue had been waived and did not address it. Davis, 13 FSM Intrm. at 185.

The court therefore need not address this ground since 1) the motion is denied on another ground and 2) since the statute has previously been ruled unconstitutional for judgments in civil rights cases.

IV. Chuuk’s Motion for Injunctive Relief

Chuuk, noting that the consent judgment has been registered as a foreign judgment in the Hawaii state courts and that a judgment lien placed on property Chuuk owns in Honolulu, Hawaii, moves for an injunction barring the plaintiffs from foreclosing on that property. Chuuk contends that foreclosure would cause it irreparable harm, because the property (known as Chuuk House) is currently being used to house Chuukese who are referred to Honolulu for medical treatment (and their relatives who are there to assist them). Chuuk further contends that it is likely to succeed on the merits because it has sovereign immunity; that the balance of possible injuries favors the injunction’s issuance; and that public interest favors its issuance.

The plaintiffs contend that an injunction is not a possible post-judgment remedy; that no injunction could be available to Chuuk unless it gives security for $337,000 plus interest; that this court lacks jurisdiction to bar the plaintiffs from taking action in Hawaii to collect on the consent judgment; and that the four-prong analysis used to grant injunctive relief does not favor Chuuk.

Chuuk has not furnished any authority that what it calls a preliminary injunction can be issued in this circumstance - after a (consent) judgment has been entered and no appeal is pending (or contemplated). No foreclosure proceeding has been filed in a Hawaii court. Chuuk’s likelihood of success on a sovereign immunity defense to foreclosure would be determined by Hawaii and U.S. federal law. The court has insufficient information before it to conclude that Chuuk is likely to succeed on that defense. Since no 

[14 FSM Intrm. 542]

 foreclosure proceeding has been filed, no injury to Chuuk is yet possible. Even if the plaintiffs sought foreclosure, the injury Chuuk alleges is not to Chuuk itself but to non-parties - to Chuukese patients who would be inconvenienced by having to find other living arrangements. The balance of possible injuries favors neither. Only the public interest factor might favor Chuuk. Thus, even if the court could issue an injunction in this circumstance, the court, balancing the four factors, concludes they would not favor injunctive relief for Chuuk.

Additionally, although this court cannot enjoin a Hawaii court, it presumably has jurisdiction over the plaintiffs, who submitted to this court’s personal jurisdiction by filing the original complaint in this case, and could enjoin them. However, the court might have difficulty enforcing any injunction against them if they are not present in the Federated States of Micronesia.

V. Conclusion

Accordingly, the plaintiffs’ motion for the issuance of a writ of garnishment and Chuuk’s motion for injunctive relief are both denied. The parties shall each bear their own fees and costs on these motions.

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