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HEADNOTES

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COURT'S OPINION

READY E. JOHNNY, Associate Justice:

This comes before the court on the defendant's summary judgment motion, filed September 28, 2012, with supporting exhibits and affidavit. The defendant, State of Chuuk, contends that it is entitled to summary judgment on its affirmative defense that this litigation is barred by the relevant statute of limitations. The plaintiff, Mathias Aunu, did not file an opposition.

Although, by rule, the failure to file an opposition is deemed to be a consent to a motion, FSM Civ. R. 6(d), the court cannot automatically grant an unopposed summary judgment motion because there must still be a sound basis in law and in fact upon which to grant the motion. Carlos Etscheit Soap Co. v. McVey, 17 FSM Intrm. 102, 108 (Pon. 2010); Saimon v. Wainit, 16 FSM Intrm. 143, 146 (Chk. 2008); Western Sales Trading Co. (Phils) v. B & J Corp., 14 FSM Intrm. 423, 425 (Chk. 2006); Lee v. Lee, 13 FSM Intrm. 68, 71 (Chk. 2004); Joe v. Kosrae, 13 FSM Intrm. 45, 47 (Kos. 2004); Fredrick v. Smith, 12 FSM Intrm. 150, 152 (Pon. 2003); Kyowa Shipping Co. v. Wade, 7 FSM Intrm. 93, 95 (Pon. 1995).

I. BACKGROUND

Aunu seeks damages for the times that the state allegedly failed to pay him overtime pay differentials as required by statute. The State learned from discovery that the times for which Aunu

[18 FSM R. 469]

claimed unpaid back wages were when he worked such hours in the aftermath of Typhoon Chata'an in 2002. Typhoon Chata'an occurred on June 30-July 1, 2002.

Aunu did not seek payment for his unpaid wages through the administrative remedies available under the Chuuk Public Service System Act – he did not file a pay grievance. But, within a year of Typhoon Chata'an, Aunu contacted Micronesian Legal Services Corporation ("MLSC") because he had not been paid the extra differentials for the work he performed in Chata'an's aftermath. MLSC filed suit on Aunu's behalf on August 7, 2008 (docketed as Civ. No. 2008-1068). Aunu's suit was dismissed without prejudice on December 15, 2008, because he had not alleged that he had exhausted his administrative remedies or alleged that it would have been futile for him to try to pursue those remedies.

On January 14, 2010, Aunu filed the present lawsuit. On February 4, 2010, the state moved to dismiss for failure to state a claim, failure to exhaust Administrative remedies, and for lack of subject-matter jurisdiction, and for a more definite statement. At the parties' request, the court's consideration of the motion was stayed to allow Aunu to pursue the administrative grievance procedure he had started to pursue in 2009. On September 7, 2011, the parties agreed that any further pursuit of administrative remedies would not be fruitful – would be futile. On October 7, 2011, the court denied the state's motion to dismiss and noted that the statute of limitations was an affirmative defense that, if raised in the state's answer, was subject to proof but when there were significant factual issued that may affect that defense a motion to dismiss on statute of limitations grounds had to be denied. Aunu v. Chuuk, 18 FSM Intrm. 48, 51 (Chk. 2011). Then on October 19, 2011, Chuuk filed its answer which included a statute of limitations affirmative defense.

After discovery was conducted and a status conference held on August 1, 2012, the state¹ was given leave to file a summary judgment motion. The state, relying on Aunu's discovery responses that his back pay claims were for overtime in 2002 and the Nursing Director's affidavit that the pay claims were for hours worked in Typhoon Chata'an's aftermath, moved for summary judgment on its affirmative defense of statute of limitations.

II. DISCUSSION

Aunu brought this case as a civil rights claim against the state for unpaid back wages. The limitations period for many types of civil rights lawsuits against the state is two years, Chk. S.L. No. 5-01-39, § 10, but for back pay claims it is six years, id. § 11. Thus when the original lawsuit (Civ. No. 2008-1068) was filed on August 7, 2008, the statute of limitations would have barred recovery for any claims for overtime hours worked before August 7, 2002.² While that lawsuit was pending, any further running of the statute of limitations would have been tolled (suspended) for any overtime claims after

[18 FSM R. 470]

August 7, 2002. Dereas v. Eas, 15 FSM Intrm. 135, 139 (Chk. S. Ct. Tr. 2007); see also 51 AM. JUR. 2D Limitation of Actions § 207 (rev. ed. 2000). And for a lawsuit to toll a statute of limitation, that lawsuit must be against the proper party. There is no suggestion by the state that Aunu's prior suit was not against the proper party. But, when Civil Action No. 2008-1068 was dismissed on December 15, 2008, for failure to state a claim because he had not alleged that he had exhausted his administrative remedies or alleged that it would have been futile for him to try to pursue those remedies, the statute of limitations started running again. By the time this case was filed on January 14, 2010, the six-year statute of limitations would bar any claims arising before September 6, 2003. Since it is undisputed that all of Aunu's overtime claims were for 2002, the state has good grounds for and is entitled to summary judgment on its statute of limitations defense.

Furthermore, the court's August 1, 2012 Order Setting Schedules required the parties to file their pretrial statements, as agreed, by October 1, 2012, and to mark their exhibits by November 21, 2012. Aunu has not done either. He may have abandoned this litigation.

III. CONCLUSION

Accordingly, Aunu having consented, Chuuk's motion for summary judgment is granted.

Footnotes:

¹ The written order erroneously stated that the plaintiff was given leave to file a summary judgment motion.

² Assuming that Aunu's overtime pay claim was meritorious, it may seem harsh that an otherwise meritorious claim would be barred by the statute of limitations. The purpose of a statute of limitations is to require diligent prosecution of known claims, thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh. Allen v. Allen, 17 FSM Intrm. 35, 39 (App. 2010). In this case, Aunu, who was represented by MLSC for most of the limitations period, may not be without recourse. The most frequent attorney error that may be the subject of a successful legal malpractice action is the attorney's failure to comply with a statute of limitation. 3 RONALD E. ALLEN & JEFFREY M. SMITH, LEGAL MALPRACTICE § 23:3, at 495-96 (2007).