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HEADNOTES

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

This comes before the court on the defendants' Motion for Summary Judgment, filed March 9, 2012, the Plaintiff's Opposition to Defendants' Motion for Summary Judgment, filed March 14, 2012; and Plaintiff Tarauo's Brief on Tolling of Statute of Limitation per Court Order of April 24, 2012, filed May 21, 2012. The defendants' motion is denied. The court's reasons follow.

I. BACKGROUND

The plaintiff, Antinisi Tarauo, alleges, in a complaint filed August 4, 2011, that, on November 26, 2007, the civil rights of her thirteen-year-old son, Andrew Tarauo, were violated by the defendants when they treated him in the Chuuk Hospital Emergency Room and allegedly taped his mouth shut to quiet him and allegedly laughed at his discomfort while they were treating him for a dangerous puncture wound and also when they allegedly failed to provide the necessary medical attention of properly cleaning and treating his wounds.

The defendants, by supporting affidavits, dispute most of these allegations except the date that they treated Andrew Tarauo in the Emergency Room, the nature of his injury, and that they treated him. The legal grounds on which they seek summary judgment do not, however, appear to be dependent on these disputed facts.

II. SUMMARY JUDGMENT MOTION

The defendants move for summary judgment on the grounds that this action is barred by the statute of limitations; or by laches, estoppel, and waiver; or ought to be dismissed because the plaintiff is forum shopping. A court must deny a motion for summary judgment unless, viewing the facts presented and the inferences made in the light most favorable to the non-moving party, the court finds that there is no genuine issue as to any material fact. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 48 (App. 1995).

A. Statute of Limitations

The FSM civil rights statute, 11 F.S.M.C. 701(3), does not contain a statute of limitations for the civil actions it authorizes. The court has previously held that when no applicable limitations period is specified in the national statute under which the plaintiff has proceeded, the court will apply the most closely analogous state law limitations period so long as doing so does not frustrate or interfere with

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national policy. AHPW, Inc. v. FSM, 12 FSM Intrm. 544, 553 (Pon. 2004). Under this reasoning, the applicable limitations period for this action would be two years since that is the limitations period for errors committed by medical practitioners employed by the state, Chk. S.L. No. 5-01-39, § 10(c), and for personal injury actions against the state, id. § 10(d).

Andrew Tarauo, however, is still a minor or an infant.¹ "[A] statute of limitations runs against the claims of infants in the absence of a contrary statute or provision." 51 AM. JUR. 2D Limitation of Actions § 224, at 593 (rev. ed. 2000). The Chuuk Sovereign Immunity Act of 2000 contains a contrary statute or provision. That act provides that:

"If the person entitled to a cause of action is a minor . . . at the time the cause of action arises, the action may be commenced within the times prescribed by this act after such disability has been removed. The time during which the claimant is disabled shall be excluded in determining the time limitations prescribed by this act.

Chk. S. L. No. 5-01-39, § 12.

The court has previously construed a similar FSM tolling statute, 6 F.S.M.C. 806, that reads: "If the person entitled to a cause of action is a minor or is insane or is imprisoned when the cause of action first accrues, the action may be commenced within the times limited in this chapter after the disability is removed." In both Sarapio v. Maeda Road Construction Co., 3 FSM Intrm. 463, 464, (Pon. 1988) and Luda v. Maeda Road Construction Co., 2 FSM Intrm. 107, 113-15 (Pon. 1985), the court held that the two-year limitation period proclaimed in 6 F.S.M.C. 503(2) was subject to 6 F.S.M.C. 806's tolling provisions and that accordingly, the statute of limitations had not run against the claims of the minor children who were plaintiffs in those cases although it may have run against the claims of the adult plaintiffs in those cases because the suits were brought over three years after the causes of action arose.

The result is the same in this case. The two-year statute of limitations has been tolled by statute in favor of the minor for whose benefit this action has been brought.

B. Laches and Other Grounds

The elements of a laches defense are the plaintiff's inexcusable delay or lack of diligence in bringing suit and resulting prejudice to the defendant. Nahnken of Nett v. Pohnpei, 7 FSM Intrm. 485, 489 (App. 1996). Whether the elements of laches have been established in any particular case is one of fact depending on the circumstances, and calls for the trial court's exercise of a sound discretion. Id. Although this suit was filed more than three and a half years after the cause of action arose, it has not been shown, that that time period, by itself, is an inexcusable delay. Nor have the defendants shown, instead of merely speculating, that the delay has resulted in prejudice to them.

Accordingly, the defendants cannot be granted summary judgment on their laches defense. This denial does not preclude the defendants from prevailing on this defense if they later are able to prove its factual elements.

The same holds true for the defendants, estoppel and waiver defense. That affirmative defense requires a long non-assertion of one's rights by the plaintiff and the defendant's reliance on that non-

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assertion to its detriment, but there can be no estoppel when there is no prejudice to the party claiming it. Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 65-66 (Chk. 1997). Thus, for the same reasons the defendants were denied summary judgment on their laches defense, they must also be denied summary judgment on their estoppel and waiver defense. Both defenses currently lack an adequate factual basis for summary judgment.

The defendants also contend that they should be granted summary judgment because the plaintiff's suit in this court constitutes "forum shopping." "Forum shopping" is "the practice of choosing the most favorable jurisdiction or court in which a claim might be heard." BLACK'S LAW DICTIONARY 726 (9th ed. 2009). The defendants do not contend that this court has no subject-matter jurisdiction over this case. They merely contend that this case could or should be handled in a different forum. That is not a ground for summary judgment. At most, it is a claim that the case should be dismissed without prejudice so that the parties could pursue it in some other forum. See Lee v. Lee, 13 FSM Intrm. 252, 257 n.5 (Chk. 2005) (forum non conveniens). They have not shown a basis for that either.

III. CONCLUSION

Although the plaintiff's claims are subject to the two-year statute of limitations, the defendants will not be granted summary judgment even though over two years elapsed before the plaintiff filed suit. The running of the statute of limitation was tolled because the plaintiff is a minor. The defendants are also denied summary judgment on their equitable defenses (laches, estoppel and waiver) for the current lack of an adequate factual basis and "forum shopping" is not a ground for summary judgment.

The parties shall submit, no later than June 15, 2012, their proposals for further proceedings in this matter.

Footnotes:

¹ In law, an "infant" is a minor, anyone under the age at which they legally become an adult. In the Federated States of Micronesia, an infant would be anyone under the age of eighteen.