FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2011-3002

PEOPLE OF THE MUNICIPALITY OF EAURIPIK, YAP, by and through SANTUS SARONGELFEG, JOHN HAGLELGAM, and MOSES MOGLIG,
Plaintiffs,

FEDERATED STATES OF MICRONESIA,
Plaintiff in Intervention,

vs.

F/V TERAKA NO. 168, F/V YUH YOW 606, F/V FU KUAN 606, M/TUG TRABAJADOR-I, their engines, masts, bowsprits, boats, anchors, chains, cables, rigging, apparel, furniture, and all necessaries thereunto pertaining,
In Rem Defendants,

YUH YOW FISHERY COMPANY, LTD., MARIN MARAWA, LTD., MASANAGA SHIMAZU, MALAYAN TOWAGE AND SALVAGE CORPORATION, and HSIN HORNG FISHERY COMPANY, LTD.,
In Personam Defendants.
_______________________________________________

ORDER CONDITIONALLY CERTIFYING CLASS

Martin G. Yinug
Chief Justice

Decided: May 8, 2012

APPEARANCES:

For the Plaintiffs: Daniel J. Berman, Esq.
Berman O'Connor & Mann
111 Chalan Santo Papa, Suite 503
Hagatna, Guam 96910

For the Defendants: David Ledger, Esq. (pro hac vice)
(Yuh Yow Fishery, Cabot Mantanona LLP
 Marin Marawa, Malayan 929 South Marine Corps Drive
Towage & Salvage) Tamuning, Guam 96913

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HEADNOTES

Civil Procedure - Class Actions
The moving plaintiffs bear the burden of showing that all the requirements for a class action have been met. Under Civil Procedure Rule 23, all class actions must satisfy all four prerequisites in subsection (a) - numerosity, commonality, typicality, and adequacy of representation - and any one of the three subsections in subsection (b). The failure to meet any one of these prerequisites precludes class certification. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 266 (Yap 2012).

Civil Procedure - Class Actions
A subsection (b)(3) class action can be maintained only if the court finds that the class members' common questions of law or fact predominate and that a class action is superior to other methods of adjudication. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 266 (Yap 2012).

Civil Procedure - Class Actions
Class certification must take place as soon as practicable after the commencement of an action brought as a class action, and the court should make its class determination before turning to the case's merits. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 266 (Yap 2012).

Civil Procedure - Class Actions
When certain factual disputes may have some bearing on the matter's ultimate resolution on the merits, but they do not appear to have any bearing on whether the plaintiffs can be certified as a class, the court will disregard these factual disputes for the purpose of the pending class certification motion. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 267 (Yap 2012).

Constitutional Law - Judicial Guidance Clause; Custom and Tradition - Yap; Evidence - Judicial Notice
The court can take judicial notice that the social configuration of the outer islands in the State of Yap differs significantly from the Yap main island (even the vernacular language is significantly different) since it is a fact not subject to reasonable dispute in that it is generally known within the trial court's territorial jurisdiction and since the court's decisions are required to be consistent with the social and geographic configuration of Micronesia. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 267 (Yap 2012).

Civil Procedure - Class Actions; Custom and Tradition - Yap
Tabinaw are a salient social feature of the main island of Yap, but may not be in Yap's outer islands or on Eauripik. Thus, the failure to mention tabinaw membership in the plaintiffs' proposed class definition may not make the class designation indefinite. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 267 (Yap 2012).

Civil Procedure - Class Actions - Numerosity
A class action may be maintained only if the class is so numerous that joinder of all members is impracticable, but there are no arbitrary rules regarding the size of classes. This is because practicability of joinder depends on the size of the class, ease of identifying numbers and determining their addresses, facility of making service on members joined and their geographic dispersion. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 267-68 (Yap 2012).

Civil Procedure - Class Actions - Numerosity
The numerosity requirement appears to have been met when the class purportedly numbers about a hundred, almost all of whom reside on an outer island, thus making it difficult to identify the number in the class, to determine addresses for service, and to make individual service on each plaintiff on Eauripik and on any plaintiffs sojourning elsewhere. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 268 (Yap 2012).

Civil Procedure - Class Actions - Typicality
To satisfy the typicality prerequisite, a class representative must be a member of the class and must possess the same interest and suffer the same injury as the class members. This prerequisite is also inherent in the real party in interest requirement found in Civil Procedure Rule 17(a). People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 268 (Yap 2012).

Civil Procedure - Class Actions - Adequacy
Since court decisions are mandated to be consistent with the social configuration of Micronesia, persons holding traditional leadership positions have been confirmed as adequate named representatives in class actions in Yap, and the court is assured that class counsel will vigorously pursue the rights of the class when he has done so in several other maritime tort class actions, and he appears to be qualified. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 268 (Yap 2012).

Civil Procedure - Class Actions - Adequacy
The prerequisite that a named plaintiff will fairly and adequately protect the interests of the class is met when the class representative shares, without conflict, the interests of the unnamed class members and the court is assured that the representative will vigorously prosecute the rights of the class through qualified counsel. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 268 (Yap 2012).

Civil Procedure - Class Actions
The court can conditionally find that the typicality and adequacy prerequisites have been met, subject to later evidence that either confirms that or negates that. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 268 (Yap 2012).

Civil Procedure - Class Actions - Adequacy
If the chiefs named as plaintiff class representatives turn out not to be qualified to represent the class, some other chief(s) will then need to be named as class representatives. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 268 (Yap 2012).

Civil Procedure - Class Actions
A Rule 23(b)(3) class action can be maintained only if the court finds that the class members' common questions of law or fact predominate and that a class action is superior to other methods of adjudication. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 269 (Yap 2012).

Civil Procedure - Class Actions
For a case to proceed under Rule 23(b)(3), the court must find that the questions in common to the class predominate over those affecting only individual class members. In determining whether the predominance standard is met, courts focus on the issue of liability. If the liability issue is common to the class, common questions are held to predominate over individual ones. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 269 (Yap 2012).

Civil Procedure - Class Actions
When the liability issue is common to the class because the liability to the plaintiffs is based on the common events related to the grounding of a fishing vessel on the atoll's reef and the subsequent attempted salvage of the vessel, a class action is superior to any other method of adjudication because it is difficult to see how the action could be maintained and adjudicated any way other than as a class action. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 269 (Yap 2012).

Civil Procedure - Class Actions
Rule 23 is to be liberally construed so that in doubtful cases, a court should decide in favor of a class action, and, if an order defining and certifying a class action later proves inadequate, the court may alter or amend the order before the decision on the merits. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 269 (Yap 2012).

Civil Procedure - Class Actions
If a later submission affects the accuracy of the class definition, the court has the discretion to limit or redefine the class in an appropriate manner to bring the action within Rule 23. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 269 (Yap 2012).

Civil Procedure - Class Actions - Notice
When a class has been certified, plaintiffs' counsel must prepare and have approved as to form by defendants' counsel a notice defining membership in the class, stating that it has been certified as plaintiffs in the action, identifying the action and the court it is in, and advising each member that 1) the court will exclude the member from the class if the member so requests by a specified date; 2) the judgment, whether favorable or not, will include all members who do not request exclusion; and 3) any member who does not request exclusion may, if the member desires, enter an appearance through counsel. The plaintiffs must submit to the court the proposed notice and a proposed order requiring the best notice practicable under the circumstances and when most class members reside a great distance from the main island, counsel shall include additional methods of notice designed to effect Rule 23(c)(2). People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM Intrm. 262, 269-70 (Yap 2012).

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COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

This comes before the court on the Plaintiffs' Motion for Class Certification, filed March 28, 2012, and the Opposition of Yuh Yow Fishery, Malayan Towage & Salvage, and Petitioner Marin Marawa Ltd., to Plaintiffs' Motion for Class Certification, filed April 9, 2012. The motion is granted. The reasons follow.

I. Class to Be Certified and Requirements

The original plaintiffs1 ask the court to certify the following class as plaintiffs:

Those residents of Eaurapik Atoll and Island, who by tradition or custom own in common with other residents, the rights to use or exploit the natural resources affected by the reef damage, including but not limited to the reef, the water column, the fish, and other marine life, and any other affected natural resources following the reef damage by the [F/V Teraka 168] on August 28, 2011.

The moving plaintiffs bear the burden of showing that all the requirements for a class action have been met. People of Weloy ex rel. Pong v. M/V CEC Ace, 15 FSM Intrm. 151, 156 (Yap 2007); People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 196 (Yap 2003). Under Civil Procedure Rule 23, all class actions must satisfy all four prerequisites in subsection (a) - numerosity, commonality, typicality, and adequacy of representation - and any one of the three subsections in subsection (b). The failure to meet any one of these prerequisites precludes class certification. A subsection (b)(3) class action, as the plaintiffs seek here, can be maintained only if the court finds that the class members' common questions of law or fact predominate and that a class action is superior to other methods of adjudication. M/V CEC Ace, 15 FSM Intrm. at 156-57; M/V Kyowa Violet, 12 FSM Intrm. at 196; Saret v. Chuuk, 10 FSM Intrm. 320, 321 (Chk. 2001); Lavides v. Weilbacher, 7 FSM Intrm. 591, 593 (Pon. 1996).

Since class certification must take place "[a]s soon as practicable after the commencement of an action brought as a class action," FSM Civ. R. 23(c)(1), "[t]he court should make its class determination before turning to the case's merits," People of Weloy, 15 FSM Intrm. at 159.

II. Analysis

A. Factual Matters

The opposing defendants (Yuh Yow Fishery Co., Malayan Towage & Salvage Corp., and Marin Marawa, Ltd.) contend that certain of the plaintiffs' factual allegations are incorrect. They put forth the following specific corrections: that the Teraka No. 168 is not a "massive container vessel"; that the Teraka No. 168's owner is the Marin Marawa, Ltd.; that the vessel's captain was hired and employed by the owner and not by any other party; that the captain did not "flee" the jurisdiction but departed lawfully; and that the reef that the Teraka No. 168 struck and became grounded on "was not charted as a shallow reef incapable of supporting navigation."
Although the opposing defendants may dispute certain of the plaintiffs' factual assertions and although these factual disputes may have some bearing on this matter's ultimate resolution on the merits, they do not appear to have any bearing on whether the plaintiffs can be certified as a class. The court will therefore disregard these factual disputes for the purpose of the pending motion.

B. Whether Certification Requirements Met

The opposing defendants contend that the court cannot certify the plaintiffs as a class because 1) the class claim is based on the false premise that the reef and marine resources are held in common by all Eauripik residents; 2) the plaintiffs have not established the numerosity requirement; 3) the named class representatives are inappropriate because it has not been shown that they can fairly and adequately represent the plaintiff class; and 4) because the question remains whether common questions of law or fact predominate over questions only affecting individuals.

1. Definiteness (Residents' Ownership of the Reef)

The opposing defendants contend that the plaintiffs have not shown that they own the Eauripik reef or have any rights to it in common. They rely on People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 415 (Yap 2006) wherein the court held that the right to exploit any particular part of the reef or its marine resources was vested in a specific tabinaw within a Yap municipality and not in all residents of that municipality in general. They also rely on People of Weloy ex rel. Pong v. M/V CEC Ace, 15 FSM Intrm. 151, 157 (Yap 2007), in which the court held that a class of all residents of Weloy was not sufficiently definite and redefined the class to include only those residents who were members of tabinaw that had ownership rights to the reef that was alleged to be damaged.

The cases cited by the opposing defendants all involved damage to the reefs fringing the Yap main island. Eauripik is an outer island. The court takes judicial notice that the social configuration of the outer islands in the State of Yap differs significantly from the Yap main island. Even the vernacular language is significantly different. The court's decisions are required to be consistent with the "social and geographic configuration of Micronesia." FSM Const. art. XI, § 11. The court may take judicial notice of a fact not subject to reasonable dispute in that it is generally known within the trial court's territorial jurisdiction. FSM Evid. R. 201(b)(1); John v. Chuuk Public Utility Corp., 16 FSM Intrm. 66, 69 (Chk. 2008).

Tabinaw are a salient social feature of the main island of Yap, but may not be in Yap's outer islands or on Eauripik. The failure to mention tabinaw membership in the plaintiffs' proposed class definition may not make the class designation indefinite.

2. Numerosity

The opposing defendants contend that the plaintiffs have not established that the class is too large for practical joinder. They assert that the plaintiffs' purportedly "reasonable estimate" of 100 class members is actually unreasonable because the plaintiffs have not shown how they arrived at this number. The plaintiffs assert that they arrived at approximately 100 class members because, based on the Yap State Statistical Yearbook and internet research, this equals Eauripik's entire populace. Although FSM Census figures might have been a better source, the plaintiffs' sources seem adequate for the purpose of this certification motion.

A class action may be maintained only if the class is so numerous that joinder of all members is impracticable, but there are no arbitrary rules regarding the size of classes. This is because practicability of joinder depends on the size of the class, ease of identifying numbers and determining their addresses, facility of making service on members joined and their geographic dispersion. Lavides, 7 FSM Intrm. at 593-94. In Saret v. Chuuk, 10 FSM Intrm. 320, 322 (Chk. 2001), the court held that when the plaintiff class numbered well over a hundred, some of whom resided on outer islands, it was numerous, and that case was certified as a class action. Saret, 10 FSM Intrm. at 322. In this case, the class purportedly numbers about a hundred, almost all of whom reside on an outer island, thus making it difficult to identify the number in the class, to determine addresses for service, and to make individual service on each plaintiff on Eauripik and on any plaintiffs sojourning elsewhere.

The numerosity requirement appears to have been met.

3. Class Representation (Typicality and Adequacy)

The opposing defendants contend that the plaintiffs fail to meet the prerequisites of adequacy and typicality because none of the three chiefs named as representative plaintiffs have alleged or verified that they have a legally cognizable claim over the reef or the marine resources because none have identified themselves as members of a tabinaw with rights to the affected part of the reef. As stated above, tabinaw are not a salient feature on Eauripik atoll.

To satisfy the typicality prerequisite, a class representative must be a member of the class and must possess the same interest and suffer the same injury as the class members. M/V CEC Ace, 15 FSM Intrm. at 159; M/V Kyowa Violet, 12 FSM Intrm. at 199. This prerequisite is also inherent in the real party in interest requirement found in Civil Procedure Rule 17(a). M/V CEC Ace, 15 FSM Intrm. at 159. The plaintiffs allege that the named plaintiffs, the three chiefs, have individual claims in common with all the other Eauripik residents, and that all Eauripik residents have rights in common to the reef's resources. Although this is the barest of allegations, if true, the named plaintiffs would be able to fairly and adequately represent and protect the interest of the plaintiff class and they would have the same interests and suffer the same injuries as other class members.

Since court decisions are mandated to be consistent with the social configuration of Micronesia, persons holding traditional leadership positions have been confirmed as named representatives in class actions in the State of Yap. M/V Kyowa Violet, 12 FSM Intrm. at 199. The court is also assured that class counsel will vigorously pursue the rights of the class since he has done so in several other maritime tort class actions, and he appears to be qualified. People of Gilman ex rel. Tamagken v. M/V Nationwide I, 16 FSM Intrm. 34, 40 (Yap 2008).

The prerequisite that a named plaintiff will fairly and adequately protect the interests of the class is met when the class representative shares, without conflict, the interests of the unnamed class members and the court is assured that the representative will vigorously prosecute the rights of the class through qualified counsel. Id.; M/V CEC Ace, 15 FSM Intrm. at 159; M/V Kyowa Violet, 12 FSM Intrm. at 199. That appears to be the case here.

The court will therefore conditionally find that the typicality and adequacy prerequisites have been met, subject to later evidence that either confirms that or negates that. SeeM/V CEC Ace, 15 FSM Intrm. at 158. The plaintiffs shall therefore submit to the court, no later than June 20, 2012, further authority that the rights to Eauripik reef are held in common by Eauripik people. This authority may be provided by affidavits from the named plaintiffs or by resort to scholarly reference works, preferably both. If the chiefs named as plaintiff class representatives turn out not to be qualified to represent the class, some other chief(s) will then need to be named as class representatives. M/V CEC Ace, 15 FSM Intrm. at 159.

4. Common Questions of Law and Fact

A Rule 23(b)(3) class action, as the plaintiffs seek here, can be maintained only if the court finds that the class members' common questions of law or fact predominate and that a class action is superior to other methods of adjudication. M/V Kyowa Violet, 12 FSM Intrm. at 196; Saret, 10 FSM Intrm. at 321; Lavides, 7 FSM Intrm. at 593. The opposing defendants state that the questions that will predominate in this case are 1) whether any named defendant owes damages to individuals under private ownership rights and, if so, 2) in what amount. They contend that the class cannot be certified because the plaintiffs have not shown that these common questions of law and fact will predominate over questions affecting individual class members because the plaintiffs have failed to identify who actually owns the rights to the reef and the marine resources. This contention is, as the others were, also based on the opposing defendants' belief that the damaged part of the Eauripik reef must be owned or controlled by one, or possibly more, specific tabinaw. As noted above, the plaintiffs allege that all Eauripik residents are alleged to own the right to use the reef's marine resources in common.

For a case to proceed under Rule 23(b)(3), the court must find that the questions in common to the class predominate over those affecting only individual class members. "In determining whether the predominance standard is met, courts focus on the issue of liability. If the liability issue is common to the class, common questions are held to predominate over individual ones." M/V CEC Ace, 15 FSM Intrm. at 160. The liability issue in this case is common to the class because the liability to the plaintiffs is based on the common events related to the grounding of the Teraka No. 168 on Eauripik reef and the subsequent attempted salvage of the Teraka No. 168. In this case, a class action is superior to any other method of adjudication because it is difficult to see how this action could be maintained and adjudicated any way other than as a class action.

C. Class Certification

The court concludes that the class, as defined, meets the numerosity, commonality, typicality, and adequacy of representation prerequisites; that the class members' common questions of law or fact predominate; and that a class action is superior to other methods of adjudication. "Rule 23 is to be liberally construed so that in doubtful cases, a court should decide in favor of a class action." People of Weloy ex rel. Pong v. M/V Micronesian Heritage, 12 FSM Intrm. 613, 618 (Yap 2004). If an order defining and certifying a class action later proves inadequate, the court may alter or amend the order before the decision on the merits. Id. The class as defined above is therefore certified subject to the plaintiffs' further submissions, to be filed and served no later than June 20, 2012, about the adequacy and typicality of the named plaintiffs in the plaintiff class. If this submission affects the accuracy of the class definition, the court has the discretion to limit or redefine the class in an appropriate manner to bring the action within Rule 23. M/V Nationwide I, 16 FSM Intrm. at 39, 41; M/V Kyowa Violet, 14 FSM Intrm. at 415 n.1.

III. Required Notice to Plaintiff Class

A class having been certified, plaintiffs' counsel shall prepare and have approved as to form by defendants' counsel a notice, in both the Eauripik language and English, defining membership in the class, stating that it has been certified as plaintiffs in this action, identifying this action and the court it is in, and advising "each member that (A) the court will exclude the member from the class if the member so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if the member desires, enter an appearance through counsel." FSM Civ. R. 23(c)(2).

The plaintiffs shall submit to the court, no later than June 25, 2012, the proposed notice and a proposed order requiring "the best notice practicable under the circumstances." Id. This order must include at a minimum, but not be limited to, notice by frequent, periodic announcements on radio station V6AI over a period of two weeks, especially if broadcasts of that radio station can be received on Eauripik, the posting of copies in the village meeting places in Eauripik municipality, and the posting of copies in public places, such as the courthouse, the post office, and the Council of Tamol office, and other places where public notices may be posted. Because most class members reside a great distance from the Yap main island, counsel shall include additional methods of notice designed to effect Rule 23(c)(2).

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