FSM SUPREME COURT TRIAL DIVISION
Cite as People of Weloy ex rel. Pong v. M/V Micronesian Heritage
12 FSM Intrm. 613 (Yap 2004)

[12 FSM Intrm. 613]

THE PEOPLE OF THE MUNICIPALITY OF WELOY, YAP
STATE, by and through CHIEF JOHN PONG, CHIEF
JACKERY GAMOW, and CHIEF JOSEPH LUSON,
 
Plaintiffs,
 
 
vs.
 
 
M/V MICRONESIAN HERITAGE, In rem, its engines,
masts, bowsprit, boats, anchors, chains, cable,
rigging, apparel, furniture, and all other necessaries
thereunto pertaining,
 
In Rem Defendant,
 
 
and SOJITSU SHIPPING S.A., DIAMOND ARROW
S.A., PM&O LINE and SHIGEAKI MURAYAMA,
 
In Personam Defendants.
 
CIVIL ACTION NO. 2004-3000
 
ORDER CERTIFYING CLASS
 
Dennis K. Yamase
Associate Justice
 
Decided:  August 30, 2004

[12 FSM Intrm. 614]

APPEARANCES:

For the Plaintiffs:             Daniel J. Berman, Esq.
                                         Berman O’Connor Mann & Shklov
                                         111 Chalan Santo Papa, Suite 503
                                         Hagatna, Guam 96910
 
For the Defendant:         David Ledger, Esq.
(PM&O) Line)                 Carlsmith Ball LLP
                                        P.O. Box BF
                                        Hagatna, Guam 96932-5027
 
For the Defendants:      Fredrick L. Ramp, Esq.
(all other defendants)    Law Office of Fredrick L. Ramp
                                        P.O. Box 1480
                                        Kolonia, Pohnpei FM 96941

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HEADNOTES

Admiralty
     An allision is the sudden impact of a vessel with a stationary object such as an anchored vessel, a pier, or a submerged reef. People of Weloy ex rel. Pong v. M/V Micronesian Heritage, 12 FSM Intrm. 613, 616 n.1 (Yap 2004).
 
Civil Procedure ) Class Actions
     The plaintiffs bear the burden of showing that all the requirements for a class action have been met. Under Rule 23, all class actions must satisfy all four prerequisites in section (a), and any one of the three subsections in section (b). People of Weloy ex rel. Pong v. M/V Micronesian Heritage, 12 FSM Intrm. 613, 616 (Yap 2004).
 
Civil Procedure ) Class Actions
     Parties invoking Rule 23 must show that all the section (a) requirements ) numerosity, commonality, typicality, and adequacy of representation ) for a class action have been satisfied. These are prerequisites to certification, and the failure to meet any one of them precludes class certification. People of Weloy ex rel. Pong v. M/V Micronesian Heritage, 12 FSM Intrm. 613, 616 (Yap 2004).
 
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 Weloy ex rel. Pong v. M/V Micronesian Heritage, 12 FSM Intrm. 613, 616 (Yap 2004).
 
Civil procedure ) Pleadings
     Should the plaintiffs seek to prove and recover damages for an oil spill not mentioned in their complaint, they will need to amend their pleadings because an oil spill damaging more than just the reef on which the vessel ran aground is a claim sufficiently different from the one of damage to the reef from an allision that it requires such pleading notice to the defendants. People of Weloy ex rel. Pong v. M/V Micronesian Heritage, 12 FSM Intrm. 613, 617 (Yap 2004).

[12 FSM Intrm. 615]

Civil Procedure ) Pleadings
     Pleadings must contain a short and plain statement of the claim showing that the pleader is entitled to relief. People of Weloy ex rel. Pong v. M/V Micronesian Heritage, 12 FSM Intrm. 613, 617 (Yap 2004).
 
Civil Procedure ) Class Actions
     To satisfy the typicality prerequisite, a class representative must be part of the class and possess the same interest and suffer the same injury as the class members. People of Weloy ex rel. Pong v. M/V Micronesian Heritage, 12 FSM Intrm. 613, 617 (Yap 2004).
 
Civil Procedure ) Class Actions
     Each class, or subclass, must have a named class representative(s) of its own. Each class or subclass must be represented by someone who claims the same injuries as the absent class or subclass members, otherwise the typicality requirement is not met and the class or subclass cannot be certified. A person cannot be the named representative of two different classes at the same time. People of Weloy ex rel. Pong v. M/V Micronesian Heritage, 12 FSM Intrm. 613, 617 (Yap 2004).
 
Civil Procedure )Class Actions
     If the court decides that the class suggested or described in the complaint does not meet the minimum standards of definiteness, the trial court has the discretion to limit or redefine the class in an appropriate manner to bring the action within Rule 23. People of Weloy ex rel. Pong v. M/V Micronesian Heritage, 12 FSM Intrm. 613, 618 (Yap 2004).
 
Civil Procedure ) Class Actions
     Although the court must first look to FSM sources of law rather than begin with a review of other courts’ cases, when the court has not previously construed an FSM civil procedure rule which is identical or similar to a U.S. rule, it may look to U.S. sources for guidance in interpreting the rule. People of Weloy ex rel. Pong v. M/V Micronesian Heritage, 12 FSM Intrm. 613, 618 n.2 (Yap 2004).
 
Civil Procedure ) Class Actions
     Courts are accorded broad discretion in determining whether a suit should proceed as a class action, and will not be overruled absent abuse of discretion. 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).
 
Civil Procedure ) Class Actions
     Should an order defining and certifying a class action later prove inadequate, the order may be altered or amended before the decision on the merits. People of Weloy ex rel. Pong v. M/V Micronesian Heritage, 12 FSM Intrm. 613, 618 (Yap 2004).
 
Civil Procedure ) Class Actions
     When a class has been certified, plaintiffs’ counsel shall 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 the court will exclude the member from the class if the member so requests by a specified date; that the judgment, whether favorable or not, will include all members who do not request exclusion; and that any member who does not request exclusion may, if the member desires, enter an appearance through counsel. People of Weloy ex rel. Pong v. M/V Micronesian Heritage, 12 FSM Intrm. 613, 619 (Yap 2004).

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[12 FSM Intrm. 616]

COURT’S OPINION

DENNIS YAMASE, Associate Justice:

     This comes before the court on the question of whether this case can be maintained as a class action. The court concludes that it should.

I.  Background

     The plaintiffs’ Verified Complaint in Rem and in Personam was filed on February 18, 2004. It alleges that on June 21, 2003, the M/V Micronesian Heritage ran aground on Fiteenguch Reef, causing damage to a very productive fish and shellfish habitat, and it asks for compensatory and other damages for this allision.1 All defendants had filed their answers by May 20, 2004. The plaintiffs seek to maintain this lawsuit as a class action with Chiefs John Pong, Jackery Gamow, and Joseph Luson as class representatives.

     On June 7, 2004, the plaintiffs filed their motion for class certification with a memorandum of points and authorities and a supporting affidavit. They seek to certify two classes: (1) all residents of the unincorporated Municipality of Weloy who by tradition use or own in common with other residents the natural resources affected by the vessel’s grounding, including but not limited to the reef, the water column, the fish and other sea life, the mangrove groves and other affected resources; and (2) all residents and members of the unincorporated Municipality of Weloy.

     Defendant PM&O Line filed its opposition on June 23, 2004. On July 6, 2004, the other defendants moved to continue briefing on the class certification issue. The plaintiff’s opposition to a continuance was filed the same day. A continuance was granted. On August 19, 2004, the other defendants filed their response concerning class certification. Under Civil Procedure Rule 23(c)(1), the court bears the responsibility to determine by order, as soon as practicable after the commencement of an action brought as a class action, whether it is to be so maintained.

II.  Class Certification

     The plaintiffs bear the burden of showing that all the requirements for a class action have been met. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 196 (Yap 2003). Under Rule 23, all class actions must satisfy all four prerequisites in section (a), and any one of the three subsections in section (b). Parties invoking Rule 23 must show that all the section (a) requirements ) numerosity, commonality, typicality, and adequacy of representation ) for a class action have been satisfied. These are prerequisites to certification, and the failure to meet any one of them 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. People of Rull, 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).

     All defendants generally agree that a class ought to be certified in this case, but they contest the plaintiffs’ suggested classes and the sufficiency of the plaintiffs’ certification motion. PM&O Line contends the two suggested classes cannot be certified because they both have the same named class

[12 FSM Intrm. 617]

representatives. PM&O Line also contends that the motion is deficient because the supporting affidavit cites damage from an oil spill as a result of the allision, and no oil spill is alleged in the verified complaint. The other defendants contend that traditional ownership of reefs and their resources are vested in the villages within the municipality and not in the municipality as a whole (implying that residents of a certain Weloy village or villages would be proper class members while residents of other villages could not be), and thus neither of the suggested classes should be certified. These contentions may be summarized as: the plaintiffs do not satisfy the commonality prerequisite and perhaps the section (b)(3) requirement that the questions of law or fact that pertain to the class members predominate over those questions affecting only individual members, and that the class representatives do not satisfy the typicality requirement and are not adequate representatives of the class. None of the defendants dispute that the numerosity perquisite has been satisfied or that in this case a class action is superior to other methods of adjudication.

A.  Motion’s or Affidavit’s Deficiency

     PM&O Line contends that the supporting affidavit, and thus the motion, is deficient and should be denied because no oil spill is alleged in the verified complaint and the supporting affidavit refers to damage from an oil spill as well as from the actual allision. The court notes the variance between the verified complaint’s allegations and the affidavit’s additional oil spill allegation but does not consider this to be a sufficient ground to deny class certification in this case.

     However, should the plaintiffs seek to prove and recover damages for an oil spill on June 21, 2003, the plaintiffs will need to amend their pleadings. The pleadings must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FSM Civ. R. 8(a)(2). An oil spill damaging more than just the reef on which the M/V Micronesian Heritage ran aground is a claim sufficiently different from the one of damage to the reef from the allision that it requires such pleading notice to the defendants.

B.  Typicality, Commonality, and Adequacy Prerequisites

     The defendants contend that the named representatives do not satisfy the typicality and adequacy prerequisites. To satisfy the typicality prerequisite, a class representative must be part of the class and possess the same interest and suffer the same injury as the class members. People of Rull, 12 FSM Intrm. at 199. PM&O Line contends the named representatives do not satisfy the typicality prerequisite since they are named as class representatives for two different classes and thus cannot be typical of either class or an adequate representative of either. The other defendants seem to contend that the village chiefs of the villages that hold traditional ownership of Fiteenguch Reef would be proper class representatives and not the high chiefs of all Weloy Municipality who represent both the village(s) that hold traditional ownership of Fiteenguch Reef and the villages that do not, and who therefore are not typical of the class members and cannot adequately represent the class in which the members are defined as owners in common of the affected resources. The other defendants therefore contend that the suggested classes, as defined by the plaintiffs, do not constitute sufficiently definite classes that may be certified within Rule 23. None of the defendants dispute that the named representatives will vigorously prosecute the matter through qualified counsel.

     PM&O Line is correct. "Each class, or subclass, must have a named class representative(s) of its own. Each class or subclass must be represented by someone who claims the same injuries as the absent class or subclass members, otherwise the typicality requirement is not met and the class or subclass cannot be certified." People of Rull, 12 FSM Intrm. at 200. A person cannot be the named representative of two different classes at the same time. Therefore only one class may be certified with these representatives. The motion, as far as it seeks to define two classes, is denied.

[12 FSM Intrm. 618]

     The other defendants contend that the suggested classes are improper because some villages in Weloy Municipality do not have traditional ownership rights over Weloy’s marine space in general or over Fiteenguch Reef in particular. The court also notes that the phrase "use or own in common with other residents the natural resources" in the suggested definition of Class One might be construed to define two separate classes or subclasses ) there are those that traditionally "own" and "use" the natural marine resources and there are those that traditionally "use" but do not "own" the natural marine resources.

     If the court decides that the class suggested or described in the complaint does not meet the minimum standards of definiteness, the trial court has the discretion "to limit or redefine the class in an appropriate manner to bring the action within Rule 23." 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1760, at 127-28 (2d ed. 1986)2 ; see also Shvartsman v. Apfel, 138 F.3d 1196, 1201 (7th Cir. 1998) (affirming class certification limited to those resident aliens receiving food stamps and residing in 7th Circuit rather than those residing nationwide); Buycks-Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 322, 328-29, 336-38 (N.D. Ill. 1995) (trial court modified class definition by certifying it for injunctive relief only and excluding monetary damages); Hagen v. City of Winnemucca, 108 F.R.D. 61, 64 (D. Nev. 1985) ("court itself may construct a definition of the class"). "Courts are accorded broad discretion in determining whether a suit should proceed as a class action," Lavides, 7 FSM Intrm. at 594, and "will not be overruled absent abuse of discretion," People of Rull, 12 FSM Intrm. at 200. Rule 23 is to be liberally construed so that in doubtful cases, a court should decide in favor of a class action. See, e.g., Arch v. American Tobacco Co., 175 F.R.D. 469, 476 (E.D. Pa. 1997) (since court may amend an order granting class certification, the court should rule in favor of certification in a close case); Weigmann v. Glorious Food, Inc., 169 F.R.D. 281, 284 (S.D.N.Y. 1996) ("because courts are given discretion to tailor scope of the class later in the litigation, liberal consideration of the requirements for class certification is permitted in the early stages of litigation); Schreiber v. National Collegiate Athletic Ass’n, 167 F.R.D. 169, 173 (D. Kan. 1996) ("court should construe Rule 23 liberally and resolve all doubts in favor of class certification"); Gerstle v. Continental Airlines, Inc., 50 F.R.D. 213, 216 (D. Colo. 1970) (rule construed liberally because class determination made a early stage, but court maintains power to supervise proceedings and modify order as necessary).

     The court therefore defines and certifies the following class: all residents of the unincorporated Municipality of Weloy who by tradition use in common with other residents the natural resources (including but not limited to the reef, the water column, the fish and other sea life, and other resources) affected by the M/V Micronesian Heritage’s June 21, 2003 grounding on Fiteenguch Reef.

     Thus defined, the court concludes that the class 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. The class as now defined is therefore certified. Should this definition later prove inadequate, this order certifying a class "may be altered or amended before the decision on the merits." FSM Civ. R. 23(c)(1).

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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 Yapese 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 November 10, 2004, 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, publication in at least two issues of the Yap Networker (YNN), the posting of copies in the village meeting place in each and every village in Weloy municipality, and the posting of copies in all public places in Yap, such as the courthouse, the post office, and the library, and other places where public notices may be posted. Counsel may include additional methods of notice designed to effect Rule 23(c)(2). As another case, which also seeks to proceed as a class action, has been filed involving the same parties, but a different incident on a different date, the notice must also plainly state that this case concerns only the incident on June 21, 2003, and not any other incident involving the M/V Micronesian Heritage on any other date.

IV.  Conclusion

     Certification of Class One as modified is granted. The motion for certification of Class Two is denied. The plaintiffs shall prepare the Rule 23(c)(2) notice and order for notice to class members.

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Footnotes:

1.   An allision is "[t]he sudden impact of a vessel with a stationary object such as an anchored vessel or a pier. Black’s Law Dictionary 75 (7th ed. 1999). In this case, the stationary object was a submerged reef.

2.   Although the court must first look to FSM sources of law rather than begin with a review of other courts’ cases, FSM Const. art. XI, § 11 ("a court shall consult and apply sources of the Federated States of Micronesia."); Alaphonso v. FSM, 1 FSM Intrm. 209, 214 (App. 1982), when the court has not previously construed an FSM civil procedure rule which is identical or similar to a U.S. rule, it may look to U.S. sources for guidance in interpreting the rule, see, e.g., Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 413 n.3 (App. 2000); Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 87 n.2 (App. 1999); Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 444 (App. 1994). FSM Civil Procedure Rule 23 is similar to U.S. Federal Rule of Civil Procedure 23. The court has not previously considered the court’s power to redefine a class under Rule 23.