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HEADNOTES

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COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

This comes before the court on the defendant Governor John Ehsa's Motion to Reconsider, filed October 26, 2012,¹ and the plaintiffs' Opposition to Motion to Reconsider, filed October 31, 2012. The motion is denied. The reasons follow.

Ehsa asks the court to reconsider its October 22, 2012, denial of his motion to dismiss the case because the State of Pohnpei was not named as a party-defendant, as required by Pohnpei statute; because the State was not a party when the court heard the preliminary injunction motions; because the motion to dismiss was based on Pohnpei statute and not FSM Civil Procedure Rule 19 the plaintiffs should not have been given leave to amend to add the State as a defendant; because he cannot be a real party in interest in the suit (originally filed as Civil Action No. 2012-027) brought by the FSM Petroleum Corporation ("Petrocorp") since he did not choose the winning bidder; because the plaintiffs had not exhausted their administrative remedies as required by 58 Pon. C. § 2-124, and because he had good cause to remove Wilbur Walter from the Board of Trustees as permitted by statute.

The amendment to add the state as a defendant was more one of form than one of substance. Since a suit against a Governor in his official capacity is treated as a suit against the State, see Marsolo v. Esa, 18 FSM Intrm. 59, 66 (Chk. 2011) (suit against a person in his or her official capacity is treated as a suit against the entity that employs that officer); Herman v. Bisalen, 16 FSM Intrm. 293, 296 (Chk. 2009) (same), the State of Pohnpei was, in effect, already a party-defendant because Governor Ehsa had been sued in his official capacity. The order permitting the plaintiffs to amend their complaints merely acknowledged that fact. The original complaints were served on the Governor and the Pohnpei Attorney General. If the State had been named as a defendant, service of process on the State would have been made on the Pohnpei Attorney General. The state therefore had actual notice of the suit and actual notice of the preliminary injunction hearing. The state was thus a party in all but name, when the preliminary injunction motions were heard.

Governor Ehsa contends that dismissal was required because a Pohnpei statute, 58 Pon. C. § 2-108(2), requires a lawsuit to contain a statement in a form approved by the Pohnpei Attorney General informing the state employee sued of his rights and responsibilities under Title 58, chapter 2 of the Pohnpei Code. That is a matter of procedure. Even when the rule of decision in a case before the FSM Supreme Court is governed by state law, procedural matters are governed by the FSM Rules of Civil Procedure and national statutes, rather than by state law. Salik v. U Corp., 4 FSM Intrm. 48, 49-50 (Pon. 1989). Dismissal was not required.

Ehsa contends that Petrocorp's case against him should have been dismissed because he did not chose the winning bidder. Whether and in what manner Governor Ehsa influenced the choice of the winning bidder is irrelevant to the motion to dismiss and is a matter that may be in dispute. Furthermore, the reasoning is faulty. Ehsa contends that Petrocorp's failure to deny his averment in his motion to dismiss that he did not have anything to do with the selection of EIG has the winning bidder is, under Civil Procedure Rule 8(d), an admission by Petrocorp that his averment is true. Ehsa misunderstands the rule. The failure to deny an averment in a pleading constitutes an admission only for "[a]verments in a pleading to which a responsive pleading is required . . . ." FSM Civ. R. 8(d). A

[18 FSM R. 455]

motion to dismiss² is not a pleading. Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 410 (App. 2000); Sipos v. Crabtree, 13 FSM Intrm. 355, 367 (Pon. 2005). Ehsa's averments were not deemed admitted by the rule.

Ehsa also contends that the case should have been dismissed because the plaintiffs did not first submit their written claims, as provided for by Title 58, Section 2-124 of the Pohnpei Code, to the appropriate administrative government agency (to the Governor in this case) who would then have 50 days to consider or deny it. These cases are not claims for money damages. They seek declaratory and injunctive relief. Administrative remedies provided for by statute do not have to be exhausted when, as here, to pursue them would be futile. Sipenuk v. FSM Nat'l Election Dir., 15 FSM Intrm. 1, 5 n.2 (App. 2007); Wiliander v. National Election Dir., 13 FSM Intrm. 199, 203 n.2 (App. 2005); Chuuk v. Secretary of Finance, 7 FSM Intrm. 563, 566 n.4 (Pon. 1996).

Lastly, whether the Governor had adequate evidence of good cause to terminate PUC Director Wilbur Walter was irrelevant because it had no bearing on the motion to dismiss. Its relevance was only to the preliminary injunction motion. Furthermore, the point is moot since, by statute, Walter's term as a PUC Director has ended and he has been replaced.

Accordingly, Governor Ehsa's Motion for Reconsideration is denied.

Footnotes:

¹ Also filed then was a notice of appeal and a motion to stay pending appeal. Since then the appeal has been withdrawn. The motion to stay is thus moot.

² Even if the motion to dismiss was considered an answer and therefore a pleading, the failure to deny would not be considered an admission. An answer is not a pleading to which a responsive pleading is required. The pleadings to which a responsive pleading is required are complaints, counterclaims and cross-claims. Also, a court may, on extremely rare occasions order a reply, FSM Civ. R. 7(a) ("the court may order a reply to an answer or a third party answer"), but the court did not order one in this case. The rule further states that "[a]verments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided." FSM Civ. R. 8(d). Averments in any answer by Ehsa would, by rule, be considered denied or avoided.