FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2015-1001

BIARITA ROBERT,				)					
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Plaintiff,			)
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vs.					)
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CHUUK PUBLIC UTILITY CORPORATION	)
and CHUUK STATE GOVERNMENT,		)
)
Defendants.			)
__________________________________________	)

	ORDER DENYING DISMISSAL

	Larry Wentworth
	Associate Justice

	Hearing:  April 24, 2018
	Decided:  June 13, 2018

APPEARANCES:

For the Plaintiff:	Scott Hess, Esq.
Directing Attorney
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Defendant:	David C. Angyal, Esq.
       (CPUC)		Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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	HEADNOTES

Constitutional Law  Taking of Property
When seweage backflow rises above the level of mere negligence to the level of a public nuisance, it may constitute a taking of property without just compensation.  Robert v. Chuuk Public Utility Corp., 21 FSM R. 599, 600 (Chk. 2018).

Constitutional Law  Taking of Property
A tort claim that the state’s actions excludes all others from the plaintiff’s property rises to the level of a constitutional claim and a civil rights violation because it is a taking of the plaintiff’s property without just compensation.  Robert v. Chuuk Public Utility Corp., 21 FSM R. 599, 600 (Chk. 2018).

Civil Procedure  Dismissal  Before Responsive Pleading

When a plaintiff’s allegations, at a bare minimum, state a constitutional claim over which the FSM Supreme Court could have subject-matter jurisdiction, the motion to dismiss will be denied.  Robert v. Chuuk Public Utility Corp., 21 FSM R. 599, 600 (Chk. 2018).

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	COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

On April 24, 2018, the court heard Defendant CPUC’s Motion to Dismiss Plaintiff’s Amended Complaint, filed September 18, 2017, and the plaintiff’s Response to Defendant CPUC’s Motion to Dismiss Plaintiff’s Amended Complaint, filed October 5, 2017.  The motion is denied.

Chuuk Public Utility Corporation ("CPUC") moves to dismiss Biarita Robert’s complaint because this court lacks subject matter jurisdiction over her claim.  Robert’s claims are all based on her allegations that repeated sewage backflow on or near her property in Nantaku created a public nuisance whose noxious odors forced her to close her business and deprived her and her family of the full use and enjoyment of her residence.  She alleges that this violates her civil rights by depriving her of her property without due process of law and therefore contends that this constitutes a taking of her property.

CPUC argues that this is not a civil rights case therefore the court does not have subject matter jurisdiction over tort claims such as nuisance by Chuukese citizens against Chuuk governmental entities.  It contends that this case belongs in the Chuuk State Supreme Court where Robert earlier filed a similar suit that was dismissed without reaching the suit’s merits.

When seweage backflow rises above the level of mere negligence to the level of a public nuisance, it may constitute a taking of property without just compensation.  E.g., Robinson v. City of Ashdown, 783 S.W.2d 53, 56 (Ark. 1990) (repeated sewage flooding can give rise to takings claim); Finamore v. Cann, 334 N.E.2d 518, 519-20 (Ohio Ct. App. 1975) (being flooded by sewage 82 times will constitute a taking if it cannot be abated); but see Sinotte v. City of Waterbury, 995 A.2d 131, 141-42 (Conn. App. Ct. 2010) (no taking by sewage backflow unless total destruction of property’s economic value or substantial destruction of owner’s ability to use and enjoy property); City of Dallas v. Jennings, 142 S.W.3d 310, 314-15 (Tex. 2004) (sewage backflow not a taking if one-time accident).  A tort claim that the state’s actions excludes all others from the plaintiff’s property rises to the level of a constitutional claim and a civil rights violation because it is a taking of the plaintiff’s property without just compensation.  See Stephen v. Chuuk, 18 FSM R. 22, 25 (Chk. 2011).

Since Robert’s allegations, at a bare minimum, state a constitutional claim over which this court could have subject-matter jurisdiction, CPUC’s motion to dismiss is denied and it is further ordered that all pretrial motions shall be filed and served no later than August 16, 2018.

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