FSM SUPREME COURT TRIAL DIVISION

Cite as Harper v. William, 14 FSM Intrm. 279 (Chk. 2006)

[14 FSM Intrm. 279]

HARSON HARPER, individually and as Personal

Representative of KULOU HARPER, deceased,

Plaintiffs,

vs.

TEO WILLIAM and JOSEPH WILLIAM,

Defendants.

CIVIL ACTION NO. 2005-1032

ORDER OF DISMISSAL

Dennis Yamase

Associate Justice

Decided: June 19, 2006

APPEARANCES:

For the Plaintiff:              Fredrick Hartman

                                       P.O. Box 222

                                      Weno, Chuuk   FM   96942

[14 FSM Intrm. 280]

For the Defendants:       Andrea S. Hillyer, Esq.

                                       P.O. Drawer D

                                       Kolonia, Pohnpei   FM   96941

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HEADNOTES

Civil Procedure ) Motions

    When the plaintiffs had ten days from the date of service to respond to the motion if served personally and sixteen days to respond if served by mail, but no opposition was filed, their failure to oppose a motion is deemed a consent to the motion. But even if there is no opposition, the court still needs good grounds before it can grant the motion. Harper v. William, 14 FSM Intrm. 279, 281 (Chk. 2006).

Civil Procedure ) Dismissal

    A court evaluates a motion to dismiss for failure to state a claim only on whether a plaintiff’s case has been adequately stated in the complaint, and does not resolve the facts or merits of the case. A court deciding such a motion must assume that the complaint’s factual allegations are true and view them in a light most favorable to the plaintiff, and then dismiss the complaint only if it appears certain that no relief could be granted under any facts which could be proven in support of the complaint. Harper v. William, 14 FSM Intrm. 279, 281 (Chk. 2006).

Civil Procedure ) Dismissal; Judgments

    If it appears that the court lacks subject matter jurisdiction, the case must be dismissed since any judgment rendered by a court without subject matter jurisdiction would be void. Harper v. William, 14 FSM Intrm. 279, 281 (Chk. 2006).

Jurisdiction ) Pendent

    The FSM Supreme Court may exercise pendent jurisdiction over a state law wrongful death action (or other state law cause of action) when it arises from the same nucleus of operative fact and is such that it would be expected to be tried in the same judicial proceeding as the plaintiff’s national civil rights claim. Therefore if the plaintiffs’ civil rights cause of action states a claim upon which the court may grant relief, the FSM Supreme Court will have subject matter jurisdiction over the other state law causes of action as well. Harper v. William, 14 FSM Intrm. 279, 282 (Chk. 2006).

Civil Rights

    Although a private person, not acting under color of law, may, under 11 F.S.M.C. 701, be held liable for civil rights violations if he injures, oppresses, threatens, or intimidates another in exercising or enjoying or having exercised or enjoyed one’s civil rights, when the plaintiffs’ complaint alleges no such actions and does not allege that the defendants were acting under color of law or were acting as agents of a government when committing the battery, the complaint does not allege a civil rights claim. Harper v. William, 14 FSM Intrm. 279, 282 (Chk. 2006).

Constitutional Law ) Declaration of Rights

    The Constitution’s Declaration of Rights protects persons from acts of the governments, and those acting under them, established or recognized by the Constitution. Harper v. William, 14 FSM Intrm. 279, 282 (Chk. 2006).

Civil Rights; Torts ) Battery; Torts ) Wrongful Death

    A battery or wrongful death, by itself, does not constitute a civil rights violation. Harper v.

[14 FSM Intrm. 281]

William, 14 FSM Intrm. 279, 282 (Chk. 2006).

Civil Procedure ) Dismissal; Jurisdiction

    When, viewing the allegations in the light most favorable to the plaintiffs, the complaint does not state a civil rights cause of action and when no other basis for subject matter jurisdiction, such as diversity of citizenship, is alleged, the complaint does not state a claim upon which the FSM Supreme Court can grant relief, and the defendant’s motion to dismiss will be granted. Harper v. William, 14 FSM Intrm. 279, 282 (Chk. 2006).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

    On April 10, 2006, the defendants filed their Motion to Dismiss. A copy of the motion was served by mail on the plaintiffs’ counsel on May 31, 2006. The plaintiffs had ten days from the date of service to respond to the motion if served personally, FSM Civ. R. 6(d), and sixteen days to respond if served by mail, FSM Civ. R. 6(e). No opposition was filed. Failure to oppose a motion is deemed a consent to the motion, FSM Civ. R. 6(d); Lee v. Lee, 13 FSM Intrm. 68, 70 (Chk. 2004), but even if there is no opposition, the court still needs good grounds before it can grant the motion. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994).

I.

    The plaintiffs’ complaint alleges that on November 11, 2005 [sic], the defendants intentionally and recklessly and with actual malice and deliberate violence committed a battery on Kulou Harper and that as a proximate result of this battery Kulou Harper died on November 23, 2003. The complaint alleges that the defendants’ actions "have violated their responsibilities as human beings to value and protect the life of fellow human beings . . . ." Complaint para. 16. The complaint asserts three causes of action: battery, wrongful death, and civil rights. It invokes this court’s jurisdiction under chapter 7 [civil rights] of Title 11 of the FSM Code. All parties are alleged to be residents of Chuuk.

II.

    The defendants move to dismiss this case on the grounds that this court lacks subject matter jurisdiction, FSM Civ. R. 12(b)(1), and that the plaintiffs’ complaint fails to state a claim for which this court can grant relief, FSM Civ. R. 12(b)(6). A court evaluates a motion to dismiss for failure to state a claim only on whether a plaintiff’s case has been adequately stated in the complaint, and does not resolve the facts or merits of the case. Dorval Tankship Pty, Ltd. v. Department of Finance, 8 FSM Intrm. 111, 114 (Chk. 1997). A court deciding such a motion must assume that the complaint’s factual allegations are true and view them in a light most favorable to the plaintiff, and then dismiss the complaint only if it appears certain that no relief could be granted under any facts which could be proven in support of the complaint. Id.; Moses v. M.V. Sea Chase, 10 FSM Intrm. 45, 52 (Chk. 2001). If it appears that the court lacks subject matter jurisdiction, the case must be dismissed, FSM Civ. R. 12(h)(3), since any judgment rendered by a court without subject matter jurisdiction would be void. Bualuay v. Rano, 11 FSM Intrm. 139, 145 (App. 2002); Marcus v. Truk Trading Corp., 11 FSM Intrm. 152, 155 n.1 (Chk. 2002).

[14 FSM Intrm. 282]

III.

    Battery and wrongful death are state law causes of action. The FSM Supreme Court may exercise pendent jurisdiction over a state law wrongful death action (or other state law cause of action) when it arises from the same nucleus of operative fact and is such that it would be expected to be tried in the same judicial proceeding as the plaintiff’s national civil rights claim. Herman v. Municipality of Patta, 12 FSM Intrm. 130, 136 (Chk. 2003); Estate of Mori v. Chuuk, 11 FSM Intrm. 535, 537 (Chk. 2003). Therefore if the plaintiffs’ civil rights cause of action states a claim upon which this court may grant relief, this court will have subject matter jurisdiction over the other causes of action as well.

    The plaintiffs’ complaint does not allege that the defendants were acting under color of law or were acting as agents of a government when committing the battery. The Constitution’s Declaration of Rights protects persons from acts of the governments, and those acting under them, established or recognized by the Constitution. Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 113 (Chk. 1995). Although a private person, "not acting under color of law," may, under 11 F.S.M.C. 701, be held liable for civil rights violations if he "injures, oppresses, threatens, or intimidates another" in exercising or enjoying or having exercised or enjoyed one’s civil rights, 11 F.S.M.C. 701(1), the plaintiffs’ complaint alleges no such actions. Therefore the complaint does not allege a civil rights claim. Pau v. Kansou, 8 FSM Intrm. 524, 526 (Chk. 1998).

    A battery or wrongful death, by itself, does not constitute a civil rights violation. If the court were to consider the complaint as stating a civil rights cause of action, then any assault, battery, fisticuffs, brawl, fight, or homicide would become a national civil rights case. That cannot be.

IV.

    Thus, viewing the allegations in the light most favorable to the plaintiffs, their complaint does not state a civil rights cause of action and since no other basis for subject matter jurisdiction, such as diversity of citizenship, is alleged, the complaint does not state a claim upon which this court can grant relief. The defendant’s motion to dismiss is accordingly granted. FSM Civ. R. 12(b)(1) and (6). This case is dismissed without prejudice.

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