[24 FSM R. 79]

CIVIL ACTION NO. 2022-034

Hearing: March 22, 2023
Decided: March 22, 2023

APPEARANCES:

For the Plaintiff:         Salomon M. Saimon, Esq.
                                  P.O. Box 911
                                  Kolonia, Pohnpei FM 96941

For the Defendant:    Stephen V. Finnen, Esq.
                                  P.O. Box 1450
                                  Kolonia, Pohnpei FM 96941

HEADNOTES

Admiralty – Ships; Jurisdiction – In Rem

Under the Supplemental Rules for Certain Admiralty and Maritime Claims, a party seeking to bring a vessel – or any res – within the court's in rem jurisdiction, is required to file a notice of request for review along with a verified complaint, and If, upon review, the conditions for an action in rem appear to exist, the court may then issue an order authorizing the clerk to issue a warrant for the arrest of the vessel or other property that is the subject of the action. David v. M/V Micronesia 101, 24 FSM R. 79, 80 (Pon. 2023).

Admiralty – Ships; Jurisdiction – In Rem

For a court to exercise in rem jurisdiction, the thing (such as a vessel) over which jurisdiction is to be exercised (or its substitute, e.g., a posted bond) must be physically present in the jurisdiction and seized by court process and under the court's control, whereby it is held to abide such order as the court may make concerning it. David v. M/V Micronesia 101, 24 FSM R. 79, 80 (Pon. 2023).

Civil Procedure – Dismissal – Lack of Service; Jurisdiction – In Rem

The court cannot dismiss an in rem defendant for lack of jurisdiction over it when it has been less than 120 days since the case was filed. David v. M/V Micronesia 101, 24 FSM R. 79, 80 (Pon. 2023).

Civil Procedure – Discovery

The court may give the parties 30 days to submit a stipulated proposed schedule for the case's disposition that provides for a period for the parties to engage in and complete discovery, followed by a period for the filing of dispositive pretrial motions. David v. M/V Micronesia 101, 24 FSM R. 79, 81 (Pon. 2023).

COURT'S OPINION

BEAULEEN CARL-WORSWICK, Associate Justice:

This case came before the Court on March 22, 2023, for a status conference. Representing the Plaintiffs was Salomon Saimon, Esq. Representing the Defendants was Stephen Finnen, Esq.

With regard to the Court's in rem jurisdiction over the vessel M/V Micronesia 101, based upon the record, and after reviewing the parties' briefs on the matter, it appears that the Court does not have in rem jurisdiction over the M/V Micronesia 101 at this time. Indeed, under the Court's Supplemental Rules for Certain Admiralty and Maritime Claims, a party seeking to bring a vessel – or any res – within the Court's in rem jurisdiction, is required to file a notice of request for review along with a verified complaint. As stated in the Court's Rules:

Upon the filing of a Notice of Request for Review the court shall review the verified complaint and any supporting papers. The notice shall state the process sought and any time requirements within which the request must be reviewed. Unless otherwise required by the court, the court's review will not require the presence of the applicant or the applicant's attorney, but shall be based upon the pleadings and other papers submitted on that party's behalf. If the conditions for an action in rem appear to exist, the court may issue an order authorizing the clerk to issue a warrant for the arrest of the vessel or other property that is the subject of the action.

FSM Mar. R. C(3).See Moses v. M.V. Sea Chase, 10 FSM R. 45, 51 (Chk. 2001) (in order for a court to exercise in rem jurisdiction, the thing (such as a vessel) over which jurisdiction is to be exercised (or its substitute, e.g., a posted bond) must be physically present in the jurisdiction and seized by court process and under the court's control, whereby it is held to abide such order as the court may make concerning it); Kosrae v. M/V Voea Lomipeau, 9 FSM R. 366, 370 (Kos. 2000) (generally, to complete a court's jurisdiction in an in rem action, the res must be seized and be under the court's control; in other words, jurisdiction of the res is obtained by a seizure under process of the court, whereby it is held to abide such order as the court may make concerning it).

The Court cannot, however, at this time, dismiss the M/V Micronesia 101 from this case, as the period of time from the date that the summons in this case was issued is less than 120 days. FSM Civ. R. 4(j). See In re Kuang Hsing No. 127, 7 FSM R. 81, 82 (Chk. 1995) (where in rem jurisdiction over a vessel has not been established and its owner has not been made a party to the action an in rem action that includes a claim against the vessel's owner may be dismissed without prejudice).

That aside, and as the Court discussed with counsel for the parties, see FSM Civ. R. 16, the parties shall have thirty (30) days from the date this Order is served on their counsel in which to submit a stipulated proposed schedule for the disposition of this case that provides for a period for the parties to engage in and complete discovery, followed by a period for the filing of dispositive pretrial motions. Once this submission is filed, the Court will issue a further Order that provides for the adjudication of this case.