FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2010-1001

MATHIAS AUNU,
Plaintiff,

vs.

STATE OF CHUUK,
Defendant.
___________________________________

ORDER DENYING MOTIONS

Ready E. Johnny
Associate Justice

Hearing: September 7, 2011
Decided: October 7, 2011

APPEARANCES:

For the Plaintiff: Salomon M. Saimon, Esq.
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

For the Defendant: Joses R. Gallen, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

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HEADNOTES

Administrative Law - Judicial Review; Civil Procedure - Dismissal; Civil Procedure - Pleadings
Failure to exhaust administrative remedies is an affirmative defense which a defendant must plead and prove. But when a complaint has been filed and it appears that the plaintiff may not have exhausted his administrative remedies, the court may, in its discretion, stay the matter to allow the plaintiff to first pursue his administrative remedies and if he remains aggrieved, the court can then lift the stay and allow the litigation to proceed. Aunu v. Chuuk, 18 FSM Intrm. 48, 50 (Chk. 2011).

Administrative Law - Judicial Review; Public Officers and Employees - Chuuk
When Chuuk has acknowledged that any further pursuit by the employee of his administrative remedies would be futile, Chuuk cannot, since futility is a legal exception to the exhaustion of administrative remedies doctrine, prevail on its defense that the employee has failed to exhaust his administrative remedies or on the ground that the court lacks subject-matter jurisdiction because that ground was based on the failure to exhaust his administrative remedies. Aunu v. Chuuk, 18 FSM Intrm. 48, 50 (Chk. 2011).

Civil Procedure - Dismissal - Before Responsive Pleading; Statutes of Limitations
If it were clear that the allegations in the plaintiff's own complaint demonstrate that his claims are subject to the defense of statute of limitations, the court may dismiss those claims as time-barred even though the statute of limitations is an affirmative defense. But when there are significant factual issues that may affect the defendant's statute of limitations defense, a motion to dismiss on statute of limitations grounds must be denied. Aunu v. Chuuk, 18 FSM Intrm. 48, 50-51 (Chk. 2011).

Statutes of Limitation - Tolling
Generally, pending litigation will toll the running of any statutory limitations periods. Aunu v. Chuuk, 18 FSM Intrm. 48, 51 (Chk. 2011).

Civil Procedure - Pleadings
When the defendant asks that the plaintiff be required to add to his pleadings further allegations about the dates his pay was withheld, what pay periods were covered, how his pay was withheld from him, how the defendant authorized and executed the withholding, and what other employees were treated differently from him before it makes an answer, the motion will be denied because, while this information may be useful as the litigation progresses, its absence does not appear to leave the complaint so vague that the defendant cannot frame a response. Aunu v. Chuuk, 18 FSM Intrm. 48, 51 (Chk. 2011).

Civil Procedure - Pleadings
Rule 12(e) is designed to strike at unintelligibility rather than want of detail. A motion for a more definite statement should not be used to test an opponent's case by requiring him to allege certain facts or retreat from his allegations and it should not be granted merely to require more evidentiary detail that may be the subject of discovery. Aunu v. Chuuk, 18 FSM Intrm. 48, 51 (Chk. 2011).

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COURT'S OPINION

READY E. JOHNNY, Associate Justice:

Although the parties in this case had agreed to work together to effect Public Service Commission administrative action, they were not successful. At the September 7, 2011 status conference, they agreed that any further pursuit of administrative remedies would be futile and agreed to forgo further administrative proceedings. That left pending Chuuk's motion to dismiss and its motion for a more definite statement. In light of these developments, either side was permitted to file and serve by October 5, 2011, any supplemental material that should be considered with the pending motion and opposition. Nothing further was filed.

I. Motion to Dismiss

Chuuk moves to dismiss this case because Mathias Aunu's complaint does not allege a claim for which the court can grant relief; because Aunu failed to exhaust his administrative remedies; because the alleged withholding of holiday, overtime, and night differential pay may be authorized under existing state law; because the court lacks subject matter jurisdiction; and because the statute of limitations bars Aunu's claims.

This matter had been stayed pending administrative resolution to allow Aunu to first exhaust his administrative remedies. Failure to exhaust administrative remedies is an affirmative defense which a defendant must plead and prove. Mobil Oil Micronesia, Inc. v. Pohnpei Port Auth., 13 FSM Intrm. 223, 228 (Pon. 2005); see alsoPohnpei v. Ponape Constr. Co., 7 FSM Intrm. 613, 618 (App. 1996). But when a complaint has been filed and it appears that the plaintiff may not have exhausted his administrative remedies, the court may, in its discretion, stay the matter to allow the plaintiff to first pursue his administrative remedies and if he remains aggrieved, the court can then lift the stay and allow the litigation to proceed. The court did so in this instance.

At the September 7, 2011 hearing, Chuuk acknowledged that any further pursuit by Aunu of his administrative remedies would be futile. Since futility is a legal exception to the exhaustion of administrative remedies doctrine, Naka v. Simina, 13 FSM Intrm. 460, 461 (Chk. 2005); Dorval Tankship Pty, Ltd. v. Department of Finance, 8 FSM Intrm. 111, 115 (Chk. 1997); Chuuk v. Secretary of Finance, 7 FSM Intrm. 563, 566 n.4 (Pon. 1996), Chuuk's motion cannot prevail on its defense that Aunu has failed to exhaust his administrative remedies or on the ground that the court lacks subject-matter jurisdiction because that ground was based on Aunu's failure to exhaust his administrative remedies.

Chuuk further relies on its assertion that existing Chuuk law and Chuuk Constitution provisions may justify the withholding of Aunu's holiday and other pay. If so, that is an affirmative defense that Chuuk may plead and prove, but at this point in the litigation that will not entitle Chuuk to a dismissal.

Chuuk also asserts that Aunu fails to state a claim that the court can grant relief for. Aunu's complaint clearly alleges that he earned various legally-authorized pay benefits as a regular Chuuk state employee which Chuuk did not pay him and has refused to pay him, thus depriving him of his property (his Chuuk public service system back wages), which, if proven, is a claim for which the court can grant relief.

Chuuk also asserts that this action is barred by the relevant statute of limitations. The statute of limitations is an affirmative defense, FSM Civ. R. 8(c), which Chuuk may plead and prove. But if it were clear that the allegations in the plaintiff's own complaint demonstrate that his claims are subject to the defense of statute of limitations, the court may dismiss those claims as time-barred even though the statute of limitations is an affirmative defense. Mobil Oil Micronesia, Inc. v. Pohnpei Port Auth., 13 FSM Intrm. 223, 228 (Pon. 2005). But when there are significant factual issues that may affect the defendant's statute of limitations defense, a motion to dismiss on statute of limitations grounds must be denied. Lonno v. Trust Territory (III), 1 FSM Intrm. 279, 281-82 (Kos. 1983).

The court can only note at this point: 1) that the applicable statutory limitations period appears to be six years, Chk. S.L. No. 5-01-39, § 11, and 2) that Aunu's claim was earlier asserted in a 2008 lawsuit, which was later dismissed without prejudice and that generally pending litigation will toll [suspend] the running of any statutory limitations periods, Dereas v. Eas, 15 FSM Intrm. 135, 138 (Chk. S. Ct. Tr. 2007). If Chuuk raises the statute of limitations as an affirmative defense in its pleadings and if, through discovery, it becomes apparent that some or all of Aunu's claims are time-barred, Chuuk may then renew its motion on statute of limitations grounds.

Accordingly, Chuuk's motion to dismiss is denied.

II. Motion for a more definite statement

Chuuk also moves for a more definite statement because it asserts it is unable to form a responsive pleading because the complaint lacks certain information. Chuuk asks that Aunu be required to add further allegations to his pleadings before Chuuk makes its answer. Chuuk wants Aunu to allege the dates his pay was withheld, what pay periods were covered, how his pay was withheld from him, how Chuuk authorized and executed the withholding, and what other employees were treated differently from him.

While this information may be useful as the litigation progresses, its absence does not appear to leave Aunu's complaint so vague that Chuuk cannot frame a response. It is therefore denied. See FSM Civ. R. 12(e); FSM v. Kana Maru No. 1, 14 FSM Intrm. 368, 374 (Chk. 2006); FSM Dev. Bank v. Nait, 7 FSM Intrm. 397, 399 (Pon. 1996). Rule 12(e) is designed to strike at unintelligibility rather than want of detail. Kana Maru No. 1, 14 FSM Intrm. at 374. A motion for a more definite statement should not be used to test an opponent's case by requiring him to allege certain facts or retreat from his allegations and it should not be granted merely to require more evidentiary detail that may be the subject of discovery. Id. Most of the information Chuuk seeks should be readily available through discovery, although some of the absent information appears more likely to be produced in response to a discovery request by the plaintiff.

III. Conclusion

Accordingly, Chuuk's motions for dismissal and for a more definite statement are denied. Chuuk shall file its answer within ten days. FSM Civ. R. 12(a)(1).

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