FSM SUPREME COURT TRIAL DIVISION

Cite as Puchonong v. Chuuk, 14 FSM Intrm. 67 (Chk. 2006)

[14 FSM Intrm. 67]

NEMESIO PUCHONONG and SATERO ESECHU,

on behalf of their Supporters,

Plaintiffs,

vs.

CHUUK STATE GOVERNMENT, GOVERNOR

WESLEY SIMINA, SIIS ELECTION COMMISSION,

SIIS ELECTION COMMISSIONER SITEOISY

KOSEMOCHEN, and former Governor ANSITO WALTER,

Defendants.

CIVIL ACTION NO. 2005-1035

ORDER OF DISMISSAL

Dennis K. Yamase

Associate Justice

Decided: February 7, 2006

APPEARANCES:

For the Plaintiffs:   Nemesio Puchonong, pro se

                                 Satero Esechu, pro se

                                 Siis, Chuuk   FM

For the Defendants:  Joses Gallen, Esq.

                                     Acting Attorney General

                                     P.O. Box 189

                                     Weno, Chuuk   FM   96942

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HEADNOTES

Attorney and Client ) Admission to Practice

    When a complaint and a later memorandum are signed by the plaintiffs and a practitioner not admitted to practice in the national courts and the practitioner has not moved to appear pro hac vice, the court must therefore disregard the practitionerís signature and consider the plaintiffs as appearing pro se only. Puchonong v. Chuuk, 14 FSM Intrm. 67, 68 n.1 (Chk. 2006).

Civil Procedure ) Service

    A summons must be served with the complaint on each defendant. Puchonong v. Chuuk, 14 FSM Intrm. 67, 69 (Chk. 2006).

[14 FSM Intrm. 68]

Civil Procedure ) Dismissal; Civil Procedure ) Service

    A case may be dismissed for insufficiency of service of process. Because dismissal under Rule 12(b)(5), unlike most Rule 12(b) dismissals, is without prejudice and with leave to renew, a court will, when a defendant has moved for dismissal for insufficiency of service of process, often quash service instead of dismissing the action and order that the service be repeated within a certain time. Puchonong v. Chuuk, 14 FSM Intrm. 67, 69 (Chk. 2006).

Civil Procedure ) Declaratory Relief; Civil Procedure ) Dismissal; Civil Procedure ) Joinder and Severance; Elections

    When the plaintiffs seek a declaration that they are the legal winners of an election but have not named as defendants the candidates that opposed them and that presumably question their right to office and since these other candidates are not only real parties in interest but also indispensable parties to such a declaration, the case may be dismissed for failure to join indispensable parties. Puchonong v. Chuuk, 14 FSM Intrm. 67, 69 (Chk. 2006).

Courts

    Enforcement of a Chuuk municipal court judgment is properly sought from that court or from the Chuuk State Supreme Court, which has supervisory powers over the municipal courts, not from the FSM Supreme Court. Puchonong v. Chuuk, 14 FSM Intrm. 67, 69 (Chk. 2006).

Elections; Judgments ) Collateral Attack

    It is doubtful whether a court judgment in an election contest case can be collaterally attacked since election contests are purely statutory, and the courts have no inherent power to determine election contests. The determination of election contests is a judicial function only when and to the extent that the determination is authorized by statute. Thus, the jurisdiction of courts exercising general equity powers does not include election contests. An election contest must follow the path set out for it in the statute and no other. Puchonong v. Chuuk, 14 FSM Intrm. 67, 69 (Chk. 2006).

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 COURTíS OPINION

DENNIS YAMASE, Associate Justice:

    On December 14, 2005, the plaintiffs, acting pro se, filed their Verified Complaint for Violation of Civil Rights Declaratory Relief, and as a Collateral Attack on a Judgment.  Apparently, no summons was presented to the clerk for issuance and service with the complaint.  On December 15, 2005, copies of the verified complaint were served on the Chuuk Attorney Generalís Office, on Siteoisy Kosemochen, and on the Siis Election Board. No service was made on Wesley Simina or Ansito Walter.

    On December 29, 2005, the court issued an order questioning whether it had subject matter jurisdiction over this case, FSM Civ. R. 12(h)(3), and gave the plaintiffs an opportunity to brief the issue. The plaintiffs filed their Memorandum and Authorities on January 13, 2006. Also filed on January 13, 2006, was the defendantsí Motion to Dismiss with Points and Authorities. Neither side has responded to the otherís filing.

[14 FSM Intrm. 69]

    The verified complaint seeks enforcement of a Siis High Municipal Court judgment that confirms that the plaintiffs were winning candidates in the June 2004 Siis municipal election. The complaint avers that there have been numerous actions in both the Siis municipal court and the Chuuk State Supreme Court concerning that election; that these actions have not been appealed; and that the time for appeal has passed and no stays have been entered. The verified complaint asks that the rights of the parties be determined; that an injunction issue enjoining the defendants from hindering the plaintiffs on any matters pertaining to Siis Municipality; and a declaratory judgment be entered that they are the legal winners of the June 29, 2004 Siis municipal election.

    The defendantsí motion to dismiss asserts two grounds: 1) insufficiency of process because no summons was served with the verified complaint and 2) that the court lacks jurisdiction because the case is before other court(s).

    Service of process in this case was insufficient. A summons must be served with the complaint on each defendant. FSM Civ. R. 4(d). A case may be dismissed for insufficiency of service of process. FSM Civ. R. 12(b)(5). Because dismissal under Rule 12(b)(5), unlike most Rule 12(b) dismissals, is without prejudice and with leave to renew, a court will, when a defendant has moved for dismissal for insufficiency of service of process, often quash service instead of dismissing the action and order that the service be repeated within a certain time. Dorval Tankship Pty, Ltd. v. Department of Finance, 8 FSM Intrm. 111, 115 (Chk. 1997).

    A number of factors militate against that option in this case. The plaintiffs seek a declaration that they are the legal winners of an election but have not named

as defendants the candidates that opposed them and that presumably question their right to office. These other candidates are not only real parties in interest but also indispensable parties to such a declaration. A case may be dismissed for failure to join indispensable parties. See, e.g., Ifenuk v. FSM Telecomm. Corp., 11 FSM Intrm. 403, 405 (Chk. 2003). Enforcement of a municipal court judgment is properly sought from that court or from the Chuuk State Supreme Court, which has supervisory powers over municipal courts, Chk. S.L. No. 190-08, ßß 19, 34(5), not from this court.

    The relief sought this case, although couched in terms as a civil rights action, appears to be an election contest. It seeks a declaration that the plaintiffs are the winners of the June 29, 2004 Siis municipal election. The heading of the verified complaint states that it is also a collateral attack on a judgment, although exactly what judgment it seeks to collaterally attack is not clear from the complaintís text and attachments which seem to seek enforcement of a Siis municipal court judgment. It is doubtful whether a court judgment in an election contest case can be collaterally attacked. The Chuuk State Supreme Court appellate division has previously held that election contests are purely statutory, and the courts have no inherent power to determine election contests, the determination of such contests being a judicial function only when and to the extent that the determination is authorized by statute, David v. Uman Election Commír, 8 FSM Intrm. 300d, 300g (Chk. S. Ct. App. 1998); see also Mathew v. Silander, 8 FSM Intrm. 560, 563 (Chk. S. Ct. Tr. 1998); cf. In re Mid-Mortlocks Interim Election, 11 FSM Intrm. 470, 475 (Chk. S. Ct. App. 2003) (an aggrieved candidateís due process rights are created by statute), and that "[t]he jurisdiction of courts exercising general equity powers does not include election contests," David, 8 FSM Intrm. at 300g. An election contest must follow the path set out for it in the statute and no other. To the extent that this could be considered an election contest, it should, as provided by state statute or municipal ordinance, proceed in the state and municipal courts where the case began.

      Now therefore it is hereby ordered that the motion to dismiss is granted and that this case is dismissed.

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Footnotes:

1.  Both plaintiffs signed the verified complaint and the later memorandum were, which were also signed by one Fredrick A. Hartman, a practitioner not admitted to practice in the national courts. Hartman has not moved to appear pro hac vice. The court must therefore disregard Hartmanís signature and consider Nemesio Puchonong and Satero Esechu as appearing pro se only.

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