FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2011-1002

JOANNES IWO,
Plaintiff,

vs.

STATE OF CHUUK and CHUUK PUBLIC UTILITY CORPORATION,
Defendants.
__________________________________________

NOTICE OF POSSIBLE LACK OF JURISDICTION

Ready E. Johnny
Associate Justice

Decided: February 10, 2012

APPEARANCES:

For the Plaintiff: Derensio S. Konman
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

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

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HEADNOTES

Civil Procedure - Dismissal - Lack of Jurisdiction; Constitutional Law - Case or Dispute
A court will address the part of a motion to dismiss concerning subject-matter jurisdiction first since if the movant were to prevail on this ground any court ruling on the other grounds would be nothing more than advisory opinions, and the court does not have the authority to render advisory opinions. Iwo v. Chuuk, 18 FSM Intrm. 182, 183-84 (Chk. 2012).

Jurisdiction
The FSM Supreme Court can exercise jurisdiction in a case where an interest in land is at issue if there is another basis for jurisdiction. Iwo v. Chuuk, 18 FSM Intrm. 182, 184 (Chk. 2012).

Civil Rights
The civil rights statute creates a civil cause of action, 11 F.S.M.C. 701(3), for the violation of any right, privilege, or immunity secured to him by the Constitution or laws of the Federated States of Micronesia. Iwo v. Chuuk, 18 FSM Intrm. 182, 184 (Chk. 2012).

Civil Procedure - Pleadings; Jurisdiction - Arising under National Law
When the plaintiff alleges that the state took his property without just compensation, but he only cites to the Chuuk Constitution provision barring Chuuk from taking property without just compensation and does not allege that Chuuk's alleged acts violated any FSM Constitutional provision, his complaint does not appear to allege claims arising under national law and thus does not show FSM Supreme Court jurisdiction. Iwo v. Chuuk, 18 FSM Intrm. 182, 184 (Chk. 2012).

Civil Procedure - Pleadings; Jurisdiction
Although pleading requirements are interpreted liberally, it is the plaintiff's responsibility to see that his complaint states the grounds of jurisdiction. Iwo v. Chuuk, 18 FSM Intrm. 182, 184 (Chk. 2012).

Civil Procedure - Dismissal - Lack of Jurisdiction
After notice, an action is subject to dismissal without prejudice whenever it appears that the court lacks jurisdiction of the subject matter. Iwo v. Chuuk, 18 FSM Intrm. 182, 184 (Chk. 2012).

Civil Procedure - Dismissal - Lack of Jurisdiction
When, besides moving to dismiss for lack of subject-matter jurisdiction, a defendant has also pled and moved for dismissal on statute of limitations grounds, rather than further complicate the resolution of that issue by a dismissal and a refiling, a better use of the court's resources would be for the court to stay its ruling on the pending summary judgment motion and motion to dismiss in order to allow the plaintiff, if he so desires, an opportunity to use that time frame to move to amend his complaint to plead the court's jurisdiction with greater particularity. Iwo v. Chuuk, 18 FSM Intrm. 182, 184 (Chk. 2012).

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COURT'S OPINION

READY E. JOHNNY, Associate Justice:

On October 17, 2011, defendant State of Chuuk filed its Motion for Summary Judgment, and on December 19, 2011, the plaintiff, Joannes Iwo, filed its Opposition to Motion to Dismiss. Defendant Chuuk Public Utility Corporation has not filed any response or any motions.

Defendant Chuuk moves to dismiss this action because it is time-barred since the statute of limitations expired before the case was filed on February 2, 2011, and, failing that, on the ground of laches, estoppel, or waiver. Chuuk also contends that the court lacks subject-matter jurisdiction because an interest in land is at issue, and Chuuk further asserts that Iwo fails to state a claim against Chuuk for which the court can grant relief.

The court will address the part of the motion concerning subject-matter jurisdiction first since if Chuuk were to prevail on this ground any court ruling on the other grounds would be nothing more than advisory opinions. The court does not have the authority to render advisory opinions. Kosrae v. Jim, 17 FSM Intrm. 97, 99 (App. 2010); Kosrae v. Benjamin, 17 FSM Intrm. 1, 4 (App. 2010); Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 167-68 (App. 2007); Allen v. Kosrae, 15 FSM Intrm. 18, 23 (App. 2007); Christian v. Urusemal, 14 FSM Intrm. 291, 294 (App. 2006); Fritz v. National Election Dir., 11 FSM Intrm. 442, 444 (App. 2003).

Chuuk asserts that the court lacks jurisdiction because an interest in land is at issue. It bases this contention on the text of subsection 6(a) of article XI, of the FSM Constitution, which reads in pertinent part, "[t]he trial division of the Supreme Court has original and exclusive jurisdiction in cases . . . in which the national government is a party except where an interest in land is at issue." Chuuk apparently relies on this because Iwo's complaint asserts that the court "has jurisdiction over this matter pursuant [to] Article XI, Section 6(a) of the Constitution of the FSM." Complaint para. 1 (Feb. 23, 2011).

That provision confers exclusive jurisdiction on the court when the national government is a party. It obviously is not applicable here because the national government is not a party in this case. The court can certainly exercise jurisdiction in a case where an interest in land is at issue if there is another basis for jurisdiction. See, e.g., FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 1, 5 (Chk. 2001); Bank of Guam v. Semes, 3 FSM Intrm. 370, 381 (Pon. 1988).

Reading Iwo's complaint as a whole, it is apparent that the citation to 6(a) is a typographical error and that 6(b) was meant because the complaint clearly alleges claims arising under 11 F.S.M.C. 701, the national civil rights statute, and cites that statute several times. Apparently, Iwo intended to assert the FSM Supreme Court's jurisdiction as a case arising under national law as provided for in subsection 6(b), but inadvertently cited 6(a).

This presents another problem. The civil rights statute creates a civil cause of action, 11 F.S.M.C. 701(3), for the violation of "any right, privilege, or immunity secured to him by the Constitution or laws of the Federated States of Micronesia," 11 F.S.M.C. 701(1). While Iwo alleges that his property was taken without just compensation, Iwo only cites to the Chuuk Constitution provision barring Chuuk from taking property without just compensation and does not allege that Chuuk's alleged acts violate any FSM Constitutional provision. Therefore Iwo's complaint does not appear to allege claims arising under national law and thus does not show FSM Supreme Court jurisdiction. Although pleading requirements are interpreted liberally, it is the plaintiff's responsibility to see that his complaint states the grounds of jurisdiction. Faw v. FSM, 6 FSM Intrm. 33, 36-37 (Yap 1993).

This action is therefore subject to dismissal on that ground. FSM Civ. R. 12(h)(3) ("[w]henever it appears . . . that the court lacks jurisdiction of the subject matter, the court shall dismiss the action"). Normally, the court would, after notice, dismiss a case such as this without prejudice, allowing the plaintiff to refile the case if he could truthfully allege national court jurisdiction, or grant the plaintiff leave to file an amended complaint if the plaintiff could truthfully amend his complaint to establish the court's jurisdiction.

In this case, Chuuk, besides moving to dismiss for lack of subject-matter jurisdiction, has also pled and moved for dismissal on statute of limitations grounds. Rather than complicate the resolution of that issue by a dismissal and a refiling, a better use of the court's resources would be for the court to stay its ruling on Chuuk's pending summary judgment motion and motion to dismiss until after March 21, 2012, in order to allow Iwo, if he so desires, an opportunity to use that time frame to move to amend his complaint to plead the court's jurisdiction with greater particularity.