FSM SUPREME COURT TRIAL DIVISION
Cite as Mailo v. Chuuk
12 FSM Intrm. 597 (Chk. 2004)

[12 FSM Intrm. 597]

MARK MAILO,
 
Plaintiff,
 
 
vs.
 
 
CHUUK STATE GOVERNMENT, GRADVIN
AISEK and GARDENIA WALTER d/b/a
THE BLUE LAGOON RESORT,
 
Defendants.
 
CIVIL ACTION NO. 2004-1010
 
ORDER AND MEMORANDUM
 
Dennis K. Yamase
Associate Justice
 
Decided: August 16, 2004

APPEARANCES:

For the Plaintiff:                 Ben K. Enlet
                                           P.O. Box 1650
                                           Weno, Chuuk FM 96941
 
[12 FSM Intrm. 598]
 
For the Defendant:           Joses Gallen, Esq.
(Chuuk)                             Assistant Attorney General
                                          Office of the Chuuk Attorney General
                                          P.O. Box 189
                                          Weno, Chuuk FM 96942
 
For the Defendants:        Craig D. Reffner, Esq.
(Aisek and Walter)          Law Office of Fredrick L. Ramp
                                         P.O. Box 1480
                                         Kolonia, Pohnpei FM 96941

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HEADNOTES

Jurisdiction ) Removal
     Removal is effected when a copy of the verified petition of removal was filed with the state court clerk and the parties were served with written notice thereof. Mailo v. Chuuk, 12 FSM Intrm. 598, 600 (Chk. 2004).
 
Jurisdiction ) Removal
     A verified petition for removal must contain a short and plain statement of the facts that entitle the party to removal along with a copy of all process, pleadings and orders served upon or by the moving party in such action. Mailo v. Chuuk, 12 FSM Intrm. 598, 600 (Chk. 2004).
 
Jurisdiction ) Removal
     A case is improvidently removed when it has been removed to the FSM Supreme Court and either the FSM Supreme Court did not have subject-matter jurisdiction over the case at the time of its removal, or the party removing the case has waived its right to proceed in the FSM Supreme Court. A case that is improvidently removed from a state court must be remanded to that state court. Mailo v. Chuuk, 12 FSM Intrm. 598, 600 (Chk. 2004).
 
Jurisdiction ) Removal
     In deciding whether a case has been improvidently removed from a state court to the FSM Supreme Court, the court must base its decision on whether subject matter jurisdiction existed at the time of removal and not on matter first raised in the case in papers filed in the FSM Supreme Court after removal. Subject matter jurisdiction must be present at the time of removal. Mailo v. Chuuk, 12 FSM Intrm. 598, 600-01 (Chk. 2004).
 
Jurisdiction ) National Law
     A cross-claim cannot form a basis for the FSM Supreme Court’s jurisdiction because determination of whether a case arises under the Constitution, national law, or a treaty is based on the plaintiff’s statement of his cause of action, not on whatever defenses that are or that might be raised. Mailo v. Chuuk, 12 FSM Intrm. 598, 601 (Chk. 2004).
 
Jurisdiction ) Removal
     When a plaintiff’s complaint filed in state court states a cause of action as a violation of his right under the equal protection clause of the FSM Constitution, it asserts a claim that arises under the FSM Constitution, and the FSM Supreme Court had subject-matter jurisdiction when the case was removed. Mailo v. Chuuk, 12 FSM Intrm. 598, 601 (Chk. 2004).
 
[12 FSM Intrm. 599]
 
Jurisdiction ) Pendent
     When an FSM constitutional issue is involved in a case, the FSM Supreme Court may exercise pendent jurisdiction over state law claims which derive from the same nucleus of operative fact and are such that the plaintiff would ordinarily be expected to try them all in one judicial proceeding. Mailo v. Chuuk, 12 FSM Intrm. 597, 600 (Chk. 2004).
 
Federalism ) Abstention and Certification
      While the FSM Supreme Court may abstain from a part of a case, it may not abstain from interpretation of the FSM Constitution. Mailo v. Chuuk, 12 FSM Intrm. 597, 601 (Chk. 2004).
 
Federalism ) Abstention and Certification
     A national court has discretion to decline to exercise jurisdiction over state claims, but this determination should turn on considerations of judicial economy, convenience and fairness to litigants and should be instructed by the national court’s desire to avoid needless decisions of state law. Judicial economy, convenience and fairness to litigants, especially in light of the expedited determination sought by the parties, would seem to dictate that the entire case proceed in the same forum. Mailo v. Chuuk, 12 FSM Intrm. 598, 601 (Chk. 2004).
 
Attorney, Trial Counselor, and Client ) Attorney Discipline and Sanctions
     The FSM Supreme Court’s Disciplinary Rules apply to every attorney and trial counselor who practice before it, including those appearing pro hac vice. Mailo v. Chuuk, 12 FSM Intrm. 598, 602 (Chk. 2004).
 
Attorney, Trial Counselor, and Client ) Attorney Discipline and Sanctions
     Any person may initiate a disciplinary complaint by advising the court of the nature of the charge and indicating the factual basis for the charges. This is done by referring the complaint to the Chief Justice in Pohnpei where the Chief Clerk of the Supreme Court will assign the complaint a disciplinary proceeding docket number and open a file. Mailo v. Chuuk, 12 FSM Intrm. 598, 602 (Chk. 2004).
 
Attorney, Trial Counselor, and Client ) Attorney Discipline and Sanctions
     A civil action is not the proper forum in which to pursue or resolve a disciplinary complaint. A proper forum may be reached through the Chief Justice and the Chief Clerk in Pohnpei. A complaining party should, if it is so advised, file its disciplinary complaint with the Chief Justice and the Chief Clerk in Pohnpei. Mailo v. Chuuk, 12 FSM Intrm. 598, 602 (Chk. 2004).

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COURT’S OPINION

DENNIS YAMASE, Associate Justice:

     This case’s removal from the Chuuk State Supreme Court was effected when a copy of the verified petition of removal was filed with the state court clerk on June 21, 2004 and the parties were served with written notice thereof on the same date. Porwek v. American Int’l Co. Micronesia, 8 FSM Intrm. 436, 438 (Chk. 1998); FSM GCO 1992-2, § II(D). A verified petition for removal must contain a short and plain statement of the facts that entitle the party to removal along with a copy of all process, pleadings and orders served upon or by the moving party in such action. Damarlane v. Harden, 8 FSM Intrm. 225, 227 (Pon. 1998); FSM GCO 1992-2, § II(A). The verified petition states that the defendants Gradvin Aisek and Gardenia Walter d/b/a the Blue Lagoon Resort ("Blue Lagoon") were pursuing a cross claim against the State of Chuuk based upon Chuuk’s violation of their civil rights arising from a deprivation of their property interest without due process of law in violation of 11

[12 FSM Intrm. 600]

F.S.M.C. 701 and the FSM Constitution. This cross claim is a part of Blue Lagoon’s answer, which was filed in the FSM Supreme Court along with the verified removal petition.

I.  Motion to Remand

     The plaintiff, Mark Mailo, questions whether this removal was improvident ) whether the FSM Supreme Court can exercise jurisdiction over this case. The court invited memorandums on the subject. On July 13, 2004, Mailo filed his memorandum in support of finding that this case was improvidently removed and moved to remand the case to the Chuuk State Supreme Court. Blue Lagoon filed its Opposition to Motion to Remand Case to State Court on August 6, 2004. Mailo contends that FSM Supreme Court subject matter jurisdiction was not present when the case was removed and therefore it must be remanded to the Chuuk State Supreme Court.

     A case is improvidently removed when it has been removed to the FSM Supreme Court and either the FSM Supreme Court did not have subject-matter jurisdiction over the case at the time of its removal, or the party removing the case had waived its right to proceed in the FSM Supreme Court. Enlet v. Bruton, 10 FSM Intrm. 36, 39 (Chk. 2001). A case that is improvidently removed from a state court must be remanded to that state court. Id.

     There is no claim, nor is there anything in the file, to suggest that Blue Lagoon has waived its right to proceed in the FSM Supreme Court. The issue is thus whether the FSM Supreme Court had subject matter jurisdiction over the case at the time it was removed. In deciding whether a case has been improvidently removed from a state court to the FSM Supreme Court, the court must base its decision on whether subject matter jurisdiction existed at the time of removal and not on matter first raised in the case in papers filed in the FSM Supreme Court after removal. Id. at 40. Subject matter jurisdiction must be present at the time of removal.

     Blue Lagoon’s asserted basis for removal is that this case arises under national law. For a case to arise under national law, the national law issue must be an essential element of one or more of the plaintiff's causes of action, it must be disclosed upon the face of the complaint, unaided by any subsequently filed petition for removal or answer, it may not be inferred from a defense asserted or one expected to be made, and the national law issue raised must be a substantial one. David v. San Nicolas, 8 FSM Intrm. 597, 598 (Pon. 1998). Blue Lagoon’s cross-claim therefore cannot form a basis for the FSM Supreme Court’s jurisdiction because "determination of whether a case arises under the Constitution, national law, or a treaty is based on the plaintiff’s statement of his cause of action, not on whatever defenses that are or that might be raised." Enlet, 10 FSM Intrm. at 40; see also FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 1, 4 (Chk. 2001); Neimes v. Maeda Constr. Co., 1 FSM Intrm. 47, 48 (Truk 1982) (citing Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152, 29 S. Ct. 42, 53 L. Ed. 126, 127 (1908)).

     Looking at the plaintiff’s stated causes of action as pled in his complaint, the court notes that Mailo’s third cause of action is for violation of constitutional rights and that paragraph number 28 alleges an abuse of government power that "violates Plaintiff’s right under the equal protection clause of the Chuuk State Constitution and the FSM Constitution." The complaint thus asserts a claim that arises under the FSM Constitution. The court therefore concludes that the FSM Supreme Court had subject-matter jurisdiction when the case was removed.

     When an FSM constitutional issue is involved in a case, the FSM Supreme Court may exercise pendent jurisdiction over state law claims which derive from the same nucleus of operative fact and are such that the plaintiff would ordinarily be expected to try them all in one judicial proceeding. Ponape Constr. Co. v. Pohnpei, 6 FSM Intrm. 114, 116 (Pon. 1993), aff’d, 7 FSM Intrm. 613 (App. 1996);

[12 FSM Intrm. 601]

Ponape Chamber of Commerce v. Nett, 1 FSM Intrm. 389, 396 (Pon. 1984). No party has moved for the court’s abstention from any part of the state law claims in this case. Considering the expedited basis upon which all parties seem to desire to proceed, the court will not consider a sua sponte motion for abstention. Furthermore, while the FSM Supreme Court may abstain from a part of a case, Gimnang v. Yap, 5 FSM Intrm. 13, 19 (App. 1991), it may not abstain from interpretation of the FSM Constitution, Island Dev. Co. v. Yap, 9 FSM Intrm. 18, 20 (Yap 1999). A national court has discretion to decline to exercise jurisdiction over state claims, but this determination should turn on considerations of judicial economy, convenience and fairness to litigants and should be instructed by the national court’s desire to avoid needless decisions of state law. Ponape Chamber of Commerce, 1 FSM Intrm. at 397. Judicial economy, convenience and fairness to litigants, especially in light of the expedited determination sought by the parties, would seem to dictate that the entire case proceed in the same forum.

     The motion to remand is therefore denied.

II.  Disciplinary Complaint

     On August 6, 2004, defendants Gradvin Aisek and Gardenia Walter d/b/a the Blue Lagoon Resort ("Blue Lagoon") filed, in this action, a document entitled "Disciplinary Complaint." This document makes certain allegations of unethical behavior by a trial counselor admitted pro hac vice for this case. On August 11, 2004, trial counselor Ben Enlet filed his Request to Set a Hearing on Disciplinary Complaint; Opposition and Affidavit.

     The FSM Supreme Court’s Disciplinary Rules apply to every attorney and trial counselor who practice before it, FSM Dis. R. 1, including those appearing pro hac vice, cf. FSM Dis. R. 2(e). Any person may initiate a disciplinary complaint "by advising the court of the nature of the charge and indicating the factual basis for the charges." FSM Dis. R. 4(a). This is done by referring the complaint to the Chief Justice in Pohnpei where the Chief Clerk of the Supreme Court will "assign the complaint a disciplinary proceeding docket number and open a file." FSM Dis. R. 4(b).

     This civil action is thus not the proper forum in which to pursue or resolve a disciplinary complaint. A proper forum may be reached through the Chief Justice and the Chief Clerk in Pohnpei. Blue Lagoon shall therefore, if it is so advised, file its disciplinary complaint with the Chief Justice and the Chief Clerk in Pohnpei. No further action on this "disciplinary complaint" will be taken within this civil action.

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