FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2016-025

KITTI MUNICIPAL GOVERNMENT,	)						
)
Plaintiff,		)
)
vs.				)
)
POHNPEI UTILITIES CORPORATION,	)
)
Defendant.		)
___________________________________	)

	ORDER OF DISMISSAL

	Larry Wentworth
	Associate Justice

	Decided:  November 8, 2017

APPEARANCES:

For the Plaintiff:	Joseph S. Phillip, Esq.
P.O. Box 464
Kolonia, Pohnpei FM 96941

For the Defendant:	Kasio Mida, Jr., Esq.
Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941

	*    *    *    *

	HEADNOTES

Civil Rights; Constitutional Law  Due Process  Notice and Hearing
A customer of a government-owned utility does have a due process right to proper notice before the utility is disconnected, and must therefore also have other due process rights.  Kitti Mun. Gov’t v. Pohnpei Utilities Corp., 21 FSM R. 408, 409 (Pon. 2017).

Civil Rights
A municipality does not have any national constitutional rights or national civil rights that it may enforce against the state of which it is a part.  Kitti Municipality therefore cannot raise an FSM civil rights or constitutional claim against Pohnpei, the state of which it is a part, or against one of Pohnpei’s state agencies.  Kitti Mun. Gov’t v. Pohnpei Utilities Corp., 21 FSM R. 408, 409 (Pon. 2017).

Civil Procedure  Dismissal  Lack of Jurisdiction; Civil Rights; Jurisdiction  Subject-Matter
Since the court must dismiss the action whenever it appears by the parties’ suggestion or otherwise that the court lacks jurisdiction of the subject matter, the court will dismiss a civil rights action by a municipality against the state without prejudice to any future action in the state court.  Kitti Mun. Gov’t v. Pohnpei Utilities Corp., 21 FSM R. 408, 409 (Pon. 2017).

	*    *    *    *

	COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

On June 12, 2017, defendant Pohnpei Utilities Corporation filed a memorandum contending that, since there is no diversity of citizenship between the parties in this case, the court lacks subject-matter jurisdiction over it.  The court noted that the plaintiff, Kitti Municipal Government, alleged that the court has subject-matter jurisdiction over this case under FSM Constitution, article XI, § 6(b).  Since Section 6(b), besides providing for the court’s jurisdiction in diversity of citizenship cases, also provides the court with jurisdiction over cases that arise under the FSM Constitution, national law, or a treaty, the court asked the parties to file and serve a further memorandum or brief on whether this court has subject matter jurisdiction over this case as one arising under the FSM Constitution, national law, or a treaty.

No further memorandums were filed.  Kitti Municipality’s First Amended Complaint alleges that the defendant, Pohnpei Utilities Corporation ("PUC"), disconnected the electric power to Kitti’s ice plant.  Kitti contends that PUC illegally disconnected that power and has illegally refused reconnection.  From the complaint’s allegations, the only possible basis that the court, reading the complaint liberally, can see for alleging jurisdiction under Section 6(b)’s arising under provision, is that PUC, an agency of the Pohnpei state government, deprived Kitti of its civil rights under the FSM Constitution, to either property or due process, which is a civil cause of action under a national statute, 11 F.S.M.C. 701(3).

While it is true that "[a] customer of a government-owned utility does have a due process right to proper notice before the utility is disconnected," Wainit v. Chuuk Public Utility Corp., 20 FSM R. 135, 137 (Chk. 2015), and must therefore also have other due process rights, it is also true that a municipality does not have any national constitutional rights or national civil rights that it may enforce against the state of which it is a part, Onanu Municipality v. Elimo, 20 FSM R. 535, 543-44 (Chk. 2016); Eot Municipality v. Elimo, 20 FSM R. 482, 491 (Chk. 2016).  Kitti therefore cannot raise an FSM civil rights or constitutional claim against Pohnpei, the state of which it is a part, or against one of Pohnpei’s state agencies.

Since "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action," FSM Civ. R. 12(h)(3), the court must therefore dismiss this action.

Now therefore it is hereby ordered that this case is dismissed for lack of subject-matter jurisdiction.  This dismissal is without prejudice to any future action in the Pohnpei state courts.

*    *    *    *