CHUUK STATE SUPREME COURT TRIAL DIVISION
Cite as In re Lot No. 029-A-16, 18 FSM Intrm. 422 (Chk. S. Ct. Tr. 2012)
In the matter of the Condemnation of Land
Lot No. 029-A-16
___________________________
CHUUK STATE GOVERNMENT,
Petitioner,
vs.
KESKE MARAR, presiding officer for PACA,
Respondent.
CSSC EMA NO. 003-2012
ORDER DISMISSING CASE
Dennis K. Yamase
Special Trial Division Justice
Decided: October 4, 2012
APPEARANCES:
For the Petitioner:
Sabino S. Asor, Esq.
Acting Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942
For the Respondent:
Jack Fritz, Esq.
P.O. Box 788
Weno, Chuuk FM 96942
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Under the Chuuk Eminent Domain statute, the applicable Rules of Civil Procedures for the Chuuk State Supreme Court govern the procedure for the condemnation of private lands under the power of eminent domain, except as otherwise provided in the statute. In re Lot No. 029-A-16, 18 FSM Intrm. 422, 424 (Chk. S. Ct. Tr. 2012).
Since a plaintiff cannot file a notice of dismissal in a case under Rule 41(a)(1)(i) when the adverse party has already served an answer, the court must therefore consider the petitioner’s notice of dismissal filed after the respondent has served an answer to be a motion to dismiss. In re Lot No. 029-A-16, 18 FSM Intrm. 422, 424 (Chk. S. Ct. Tr. 2012).
When the only relief pleaded by the respondent in his answer that could possibly be considered a counterclaim was his prayer for attorney's fees and costs and when the eminent domain statute precludes this type of relief, even if this part of the respondent's prayer for relief is considered a counterclaim, it is a counterclaim that the statute clearly forbids and therefore should not hinder a dismissal under Rule 41(a)(2). In re Lot No. 029-A-16, 18 FSM Intrm. 422, 424 (Chk. S. Ct. Tr. 2012).
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DENNIS K. YAMASE, Special Trial Division Justice:
On September 17, 2012, the respondent filed his Answer and a separate Motion to Dismiss. The court, by its Order Setting Filing Date, gave the petitioner until October 2, 2012, to respond even though the Chuuk Eminent Domain statute only allows seven days to respond to motions in eminent domain cases. Since this was a matter of first impression, the court wanted to give the petitioner one opportunity to comment on the respondent's motion.
On October 2, 2012, the petitioner, the State of Chuuk, filed its Response to Respondent's Motion to Dismiss; Notice of Voluntary Dismissal. The State of Chuuk asserts that it can, on its own, voluntarily dismiss this action and asks that the money deposited into escrow at the start of this action be fully refunded to it.
This eminent domain proceeding is governed by the Chuuk Eminent Domain statute. That statute provides that "[u]nless otherwise provided herein, the applicable Rules of Civil Procedures for the Chuuk State Supreme Court shall govern the procedure for the condemnation of private lands under the power of eminent domain, except as otherwise provided in this Act." Chk. S.L. No. 10-10-18, § 11. The applicable Chuuk State Supreme Court Civil Procedure Rule provides:
(1) By Plaintiff; By Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the State of Chuuk, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. . . .
(2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
Chk. Civ. R. 41(a). Thus the petitioner (plaintiff) cannot file a notice of dismissal in this case under Rule 41(a)(1)(i) because the adverse party (the respondent) has already served an answer to the petition. The court must therefore consider the petitioner's notice of dismissal to be a motion to dismiss. The petitioner and respondent together could, by themselves, stipulate to an effective dismissal. Chk. Civ. R. 41(a)(1)(ii). They have not.
Since both parties have moved to dismiss this action, the court may order dismissal pursuant to Rule 41(a)(2). The only relief pleaded by the respondent in his answer that could possibly be considered a counterclaim was his prayer for "Respondent's Cost of suit, including attorney's fees and costs." Answer at 3 (Sept. 17, 2012). The statute, however, precludes this type of relief. It reads: "The costs of litigation shall not be assessed against any party." Chk. S.L. No. 10-10-18, § 6. If this part of the respondent's prayer for relief is considered a counterclaim, it is a counterclaim that the statute clearly forbids. It therefore should not hinder a dismissal under Rule 41(a)(2).
NOW THEREFORE IT IS HEREBY ORDERED that this eminent domain action is dismissed without prejudice. Either party has until October 10, 2012, to object to the terms of this dismissal. AND IT IS FURTHER ORDERED that the full amount of the funds deposited in escrow in the Bank of the FSM Account No. 404-4098889 including accrued interest, shall be remitted to the petitioner, the State of Chuuk.
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