FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 1990‑075

KADALINO DAMARLANE et al.,
Plaintiffs,

vs.

POHNPEI TRANSPORTATION AUTHORITY and STATE OF POHNPEI,
Defendants.
__________________________________________

ORDER AND MEMORANDUM

Martin G. Yinug
Chief Justice

Decided: October 12, 2011

APPEARANCES:

For the Plaintiffs: Mary Berman, Esq.
P.O. Box 163
Kolonia, Pohnpei FM 96941

For the Defendants: Ira Shiflett, Esq.
(PTA and Pohnpei) Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Civil Procedure - Motions; Civil Procedure - Res Judicata
When the movant has provided no new evidence or case law to persuade the court to amend its earlier order that all of the facts and issues he raises were heard, decided, appealed, and affirmed over 14 years ago and are precluded from being re-raised under the doctrine of res judicata his motion for the court to reconsider its order will be denied. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 52, 56 (Pon. 2011).

Civil Procedure - Res Judicata
Res judicata is a fundamental doctrine of our legal system. As much as every citizen is entitled to bring a claim against a defendant, citizens are entitled not to be harassed by a plaintiff once that claim is finally decided. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 52, 56 (Pon. 2011).

Civil Procedure - Res Judicata
Once a judgment has been issued and the decision is affirmed on appeal, the parties are precluded from challenging that judgment or litigating any issue that was or could have been raised in that action. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 52, 56 (Pon. 2011).

Civil Procedure - Res Judicata
When the case and the applicable issues were heard, decided, appealed, and affirmed over 14 years ago, the court will not address the questions raised in a January 10, 2011 request for clarification since they are an attempt to challenge the September 12, 1995 final judgment by introducing new issues that should have been raised in the original complaint. If new issues have arisen that could not have been litigated in the original claim, the plaintiff is entitled to file a new cause of action. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 52, 56 (Pon. 2011).

Civil Procedure - Sanctions
Rule 11 requires that every submission by a party represented by an attorney must be signed by an attorney of record. The attorney's signature is a certificate by the signer that, to the best of the signer's knowledge, information, and reasonable belief, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law and that it is not submitted for any improper purpose. If a submission is signed in violation of Rule 11, the court, upon motion or upon its own initiative, must impose upon the person who signed it, a represented party, or both, an appropriate sanction. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 52, 57 (Pon. 2011).

Civil Procedure - Frivolous Actions; Civil Procedure - Sanctions
The purpose of Rule 11 sanctions is to deter baseless or frivolous filings and the decision to impose them is addressed to the trial court's discretion. When a claim is asserted by the same plaintiff, represented by the same counsel, in an action involving the same land, repeatedly asserting previously denied theories, the court will consider that claim frivolous. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 52, 57 (Pon. 2011).

Civil Procedure - Sanctions
Sanctions will not be imposed when the plaintiff has failed to show that the defendant's arguments are either unfounded or in bad faith since the res judicata doctrine was an affirmative defense available to it as the matter was final over 14 years ago. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 52, 57 (Pon. 2011).

Civil Procedure - Sanctions
Sanctions will not be imposed on the defendant for its attempt to interpret the plaintiff's motivations and objectives because that is not a sanctionable offense. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 52, 57 (Pon. 2011).

Civil Procedure - Sanctions
Sanctions will be imposed on the plaintiff when plaintiff's counsel has deliberately distorted the facts, orders, opinions, and judgments of both the trial court and the appellate division throughout the matter's life and afterlife; when such cherry-picking of the facts and language from the opinion might have been excusable since that opinion was over 20 years old had some other party represented by some other counsel done so; when less than one year ago, the court reminded the plaintiff that the May 17, 1991 order did not require the defendant to take any particular action and that he had incorrectly characterized the court's actions; when this pattern of distortion dates as far back as counsel's use of inapplicable laws in a June 2, 1994 amended pretrial statement; and when the April 30, 1992 appellate division opinion and the trial court's December 29, 2010 order have twice explained that the May 17, 1991 order has no weight but counsel continues to argue the same inapplicable issues and facts. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 52, 58 (Pon. 2011).

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COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

This matter comes before the court on attempt by the plaintiffs, Kadalino Damarlane et al. ("Damarlane"), to resurrect a case that has long since been six feet under. This dredging began with Damarlane's refusal to comprehend the court's Order and Memorandum of December 29, 2010, in his January 10, 2011 Request for Clarification and Request for Correction, which created in its wake an eddy of activity: on January 13, 2011, defendants Pohnpei Transportation Authority and Pohnpei State Government (together, "Pohnpei") filed a response; on January 26, 2011, Damarlane filed a Request for Reconsideration; on February 2, 2011, Pohnpei filed a response to the motion for reconsideration and a motion for attorney's fees; on February 9, 2011, Damarlane filed a reply to Pohnpei's opposition to Damarlane's motion for reconsideration, along with a motion for Rule 11 sanctions; on February 14, 2011, Pohnpei filed a response to Damarlane's motion for sanctions.

While Damarlane and Pohnpei were engaged in this exchange of filings, the court has had bigger fish to fry, including new cases involving Damarlane and his counsel. However, the odor of a zombie case that should have been left in peace threatens to overwhelm the court's senses, and now that the waters around the case are quiescent, the court now engages in this matter, and aims to bury the issues once and for all.

For the following reasons, the court denies all of Damarlane's outstanding motions, grants Pohnpei's motion for attorney's fees, and grants its own motion to sanction Damarlane's counsel.

I. Background

Damarlane initiated this case with a complaint filed more than 21 years ago, on September 25, 1990. This court granted a first preliminary injunction in October of that year. On November 21, 1990, the Pohnpei Department of Health Services issued an earthmoving permit. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 1, 5 (Pon. 1991). That same month, Damarlane moved for summary judgment. This court held a hearing on December 11, 1990. On December 29, 1990, the FSM National Government issued an earthmoving permit identical to the state earthmoving permit issued the previous month. On January 14, 1991, this court granted Damarlane's motion for summary judgment and issued a permanent injunction:

The Court finds and declares that no sufficient actions have been taken by FSM national government officials to authorize the continuation of earthmoving activities at the Mesenpal site. Until the environmental implications of the proposed activities, including the impact upon the plaintiffs in this case, are assessed in good faith by the FSM Secretary of Human Resources in accordance with the requirements of the Earthmoving Regulations, no valid national earthmoving permit may be issued, and Pohnpei Transportation Authority and all other government officials and their agents must be enjoined from further activities on the Mesenpal site.

Id. at 9.

On February 4, 1991, the FSM Department of Human Resources held an earthmoving hearing, for which it had provided adequate public notice. On February 7, 1991, Pohnpei filed a motion and memorandum to modify or vacate the permanent injunction. On February 8, 1991, finding that Pohnpei now had a valid earthmoving permit "and that removal of coral from the dredge site would not cause irreparable harm," this court modified the permanent injunction to allow activities authorized by the permit. See Damarlane v. United States, 8 FSM Intrm. 45, 48 (App. 1997).

On March 15, 1991, after a hearing, this court found that Pohnpei had overstepped the bounds of the permit and were violating the January 14, 1991 permanent injunction, and issued a second preliminary injunction. On April 15, 1991, Pohnpei filed another motion and memorandum to modify or vacate the permanent injunction.

After a hearing on May 16, 1991, this court issued an order on May 17, 1991, stating that it would "be prepared to modify its injunction, issued March 15, 1991, to permit earthmoving activities authorized by the Secretary of Human Resources upon fulfillment of [four conditions]." See Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 332, 333 (App. 1992). Nowhere in that order does the court state that Pohnpei was required to fulfill those five conditions; rather, it concluded that "it will be appropriate to modify or vacate the injunction, subject to the taking of steps . . . ." Seeid. This language makes clear that this court did not order Pohnpei to meet the conditions, but instead made modification of the injunction contingent upon Pohnpei's performance. Damarlane appealed, and the Appellate Division dismissed the appeal, writing in affirmation of this court:

The May 17th order took no action concerning the injunction. It states that depending upon (1) a demonstrated compliance with the four conditions, and (2) the outcome of state court proceedings within a certain time, the court "may" modify the March 15th injunction. The order is explicit that upon the presentation of "written and documentary evidence indicating that the conditions have been fulfilled satisfactorily" the court "may" modify the injunction.

Id. at 334 (emphasis in original). The Appellate Division held that the order did not, "by any fair reading," change the requirements of the temporary injunction. Id.

After a lengthy pretrial process, trial in this matter began on July 20, 1995. On August 17, 1995, this court issued its findings of fact and conclusions of law, holding that Damarlane had not proved his case by a preponderance of the evidence. On September 12, 1995, this court issued an amended judgment in favor of Pohnpei, dismissing all remaining claims against it and dissolving the March 15, 1991 temporary injunction within 30 days of the amended judgment (as effected through an amended judgment on October 10, 1995). Damarlane was thoroughly unsatisfied, and filed motions to reconsider a pretrial order which had limited takings claims, motions to join a party who was not an indispensable party, and motions for leave to amend the complaint to allege loss of riparian rights; this court denied all these motions. See Damarlane v. United States, 7 FSM Intrm. 350 (Pon. 1995). On December 15, 1995, the court granted the United States's motion for dismissal, and the FSM's motion for sanctions against Damarlane's counsel. Id. at 357. Presciently, the court ordered that without a further order of the court, "[Damarlane] shall not file anything further in this case in the trial division without first obtaining leave of the court." Id.

Damarlane then filed three notices of appeal, two of which were consolidated as P1-1996 on February 26, 1996, and the third of which was dismissed on November 25, 1996. On April 15, 1997, the Appellate Division affirmed the trial court in all aspects. Damarlane v. United States, 8 FSM Intrm. 45 (App. 1997).

That affirmance should have been the end of this matter, and indeed, for over two years, this case rested in peace. However, on September 21, 2009, Damarlane began his attempts to breathe new life into this matter, and filed a motion for contempt against Pohnpei and the FSM Government. He claimed that this court's May 17, 1991 order was a separate order from the preliminary injunction of March 15, 1991, and that it had not been extinguished by the amended judgment of September 12, 1995. This court found that the May 17, 1991 order could not be read independently of the March 15, 1991 preliminary injunction and that the injunction had been dissolved in its entirety on September 12, 1995. This court agreed with Pohnpei's assessment that Damarlane's claims were an attempt to relitigate an issue resolved at both the trial level and by the Appellate Division over 14 years ago, and were precluded under res judicata. In the same order, this court denied Pohnpei's motion for sanctions, but cautioned Damarlane's counsel that it "may not look so charitably upon filings of this type in the future." [Damarlane v. Pohnpei Transp. Auth., 17 FSM Intrm. 307, 312 (Pon. 2010).] Despite this warning, Damarlane persisted in his efforts to bring this matter back to life in the corpse of a finally-adjudicated case.

II. Motions

A. Damarlane's Motion for Reconsideration

Through his motion for contempt and the three motions that succeeded this court's December 29, 2010 order, Damarlane alleged a violation of FSM Earthmoving Regulations and this court's May 17, 1991, order. Damarlane argues that the court's January 14, 1991 order granting summary judgment and preliminarily enjoining Pohnpei from earthmoving activities at the Mesenpal site was the basis for the May 17, 1991 order, that the May 17, 1991 order required that Pohnpei meet four conditions, and that Pohnpei's current efforts were directed towards meeting those conditions. Pls.' Reply to Defs.' Opp'n to Mot. for Reconsideration at 3.

Damarlane has provided no new evidence or case law to persuade the court to amend its December 29, 2010 order. Further, all of the facts and issues Damarlane raises were heard, decided, appealed, and affirmed over 14 years ago and are precluded from being re-raised under the doctrine of res judicata.

Therefore, Damarlane's Motion for this Court to reconsider its December 29, 2010 Order and Memorandum is denied.

B. Damarlane's Request for Clarification

Res judicata is a fundamental doctrine of our legal system. As much as every citizen is entitled to bring a claim against a defendant, citizens are entitled not to be harassed by a plaintiff when that claim is finally decided. "Once a judgment has been issued and . . . the decision is affirmed on appeal, the parties are precluded from challenging that judgment or litigating any issue that was or could have been raised in that action." Nahnken of Nett v. United States, 7 FSM Intrm. 581, 586 (App. 1996).

This case and the applicable issues were heard, decided, appealed, and affirmed over 14 years ago. The court will not address the questions Damarlane raises in the January 10, 2011 Request for Clarification, as they are an attempt to challenge the final judgment, entered on September 12, 1995, by introducing new issues that should have been raised in the original complaint. If new issues have arisen that could not have been litigated in the original claim, Damarlane is entitled to file a new cause of action. Indeed, he has done exactly that in relation to the dikes at Mesenpal. See Civil Action Nos. 2008-036, 2011-001, 2011-004, and 2011-007.

Therefore, Damarlane's request for clarification is denied.

C. Damarlane's Motion for Correction

Damarlane argues in his January 10, 2011 Request for Correction that this court misrepresented his position by stating that his position at trial was for the removal of the dredging site, and asked for a correction of that interpretation, which he contends is "extremely misleading." Pls.' Mot. for Correction at 3. He asserts that FSM Civil Rule 60(b)(1) permits the correction of judgments for "mistakes." Pls.' Mot. for Correction at 4.

The court finds no mistake to correct. Damarlane has read too much into the December 29, 2010 order, which specifically states that his claims up to the date of the trial were heard at that trial, "including their contention that the dredging site . . . must be removed." Damarlane, 17 FSM Intrm. at 311. Damarlane claims that this means the removal of the coral dike. A dredging site is not a coral dike.

Therefore, Damarlane's Request for Correction is denied.

D. Rule 11 Sanctions

Every submission by a party represented by an attorney shall be signed by an attorney of record. FSM Civ. R. 11; see also Damarlane v. United States, 7 FSM Intrm. 350, 356 (Pon. 1995). The signature of an attorney is a certificate by the signer that, to the best of the signer's knowledge, information, and reasonable belief, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. FSM Civ. R. 11. Further, the signer certifies that it is not submitted for any improper purpose. Id. If a submission is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction. Id.

The purpose of Rule 11 sanctions is to deter baseless or frivolous filings and the decision to impose them is addressed to the discretion of the trial court. Ehsa v. Pohnpei Port Auth., 14 FSM Intrm. 481, 485 (Pon. 2006). When a claim is asserted by the same plaintiff, represented by the same counsel, in an action involving the same land, repeatedly asserting previously denied theories, the Court will consider that claim frivolous. Nahnken of Nett v. Pohnpei, 7 FSM Intrm. 171, 180 (Pon. 1995).

1. Damarlane's Motion for Sanctions

Damarlane claims that Pohnpei was "so completely wrong, so factually incorrect, and so far off the map," in its arguments, that this court must sanction it. Pls.' Mot. for Sanctions at 4. He asserts that Pohnpei incorrectly asserted an affirmative defense and misrepresented his motivations and objectives. Id. at 3. He implied, without citations, that the January 14, 1991 judgment and order swings the doctrine of res judicata in his favor. Id. at 4.

Pohnpei contends that: (1) they correctly asserted res judicata as an affirmative defense; (2) references to the May 17, 1991 order as an injunction are semantics as the injunction and order are inextricably linked; and (3) Damarlane is attempting to challenge this court's orders. Defs.' Resp. to Mot. for Sanctions at 4-5.

Damarlane has failed to show that Pohnpei's arguments are either unfounded or in bad faith. The doctrine of res judicata is an affirmative defense available to Pohnpei as this matter was finalized over 14 years ago. This court also exercises its discretion and excuses Pohnpei for calling the May 17, 1991 order an injunction, as the two are inextricably linked. Finally, Pohnpei's attempt to interpret Damarlane's motivations and objectives in this case is not a sanctionable offense.
Therefore, Damarlane's Motion for Sanctions is denied.

2. Pohnpei's Motion for Sanctions

In its response to Damarlane's Motion for Reconsideration, Pohnpei alleged that Damarlane's motion was not well grounded in facts or law. Defs.' Resp. to Mot. for Reconsideration at 5. Damarlane does not address any issues Pohnpei raised regarding Rule 11; instead, he addresses Pohnpei's opposition to his motion for reconsideration and reasserts his reasoning for sanctions against Pohnpei. Pls.' Reply to Opp'n to Mot. for Reconsideration.

Similar to the situation in Nahnken of Nett v. Pohnpei, 7 FSM Intrm. 171 (Pon. 1995), Damarlane's claims are frivolous because they are asserted by the same plaintiff-represented by the same counsel-and involve the same land, and because he continues to assert previously denied and clearly erroneous theories. Further, even after repeatedly being corrected, Damarlane's counsel has deliberately distorted the facts, orders, opinions, and judgments of both this court and of the Appellate Division throughout the life and afterlife of this matter.

The most recent distortion was the selective use of the Appellate Division's summary of this court's May 17, 1991 Order in Damarlane v. Pohnpei Transportation Authority, 5 FSM Intrm. 332, while completely ignoring that court's holding on the order-which is only three paragraphs later. Pls.' Reply to Opp'n to Mot. for Reconsideration at 2-3. Such cherry-picking of the facts and language from the opinion might have been excusable since that opinion was handed down over 20 years ago, had some other party represented by some other counsel done so. However, less than one year ago, this court reminded Damarlane that the May 17, 1991 Order did not require Pohnpei to take any particular action and that he had incorrectly characterized this court's actions. Damarlane, 17 FSM Intrm. at 311. This pattern of distortion dates as far back as Damarlane's counsel's use of inapplicable laws in the Amended Pretrial Statement of June 2, 1994.

Even more troubling than this history of disingenuousness is the effect it has on this court. The April 30, 1992 Appellate Division opinion and this court's own December 29, 2010 Order have now twice explained to Damarlane the same legal fact: the May 17, 1991 order has no weight. Yet his counsel continues to argue the same inapplicable issues and facts. Such disingenuousness and dissemblance undermines the authority this court's judgments and orders and the finality of the Appellate Division's opinions. Having once given Damarlane's counsel to let dead things lie out of holiday cheer, this court is not inclined to such charity.

This court finds that Pohnpei's counsel has spent 4 hours and 10 minutes on work related to this latest attempt by Damarlane to revive a moribund case with a theories that have long been dead. Defs.' Resp. to Mot. for Reconsideration Ex. A. The court also finds that the fair price for Pohnpei's counsel's services is $75.00 an hour. Id. The product of the time by the hourly rate is $312.50.

Therefore, this court grants Pohnpei's motion for sanctions.

III. Conclusion

For the reasons given above, this court denies all four of Damarlane's motions and grants Pohnpei's motion for sanctions. This court therefore orders Damarlane to pay Pohnpei $312.50 in attorney's fees. The court echoes its own 16-year-old message and further orders Damarlane not to file anything further in this case in the trial division without obtaining leave of the court, and gives notice that violation of such order shall subject Damarlane, his counsel, or both to sanctions in the amount of $150 or greater and contempt proceedings.