FSM SUPREME COURT TRIAL DIVISION
Cite as Pohnpei Port Auth. v. FSM 24 FSM R. 202 (Pon. 2023)
POHNPEI PORT AUTHORITY,
Plaintiff,
vs.
THE NATIONAL GOVERNMENT OF THE
FEDERATED STATES OF MICRONESIA,
Defendant.
CIVIL ACTION NO. 2013-036
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Dennis L. Belcourt
Associate Justice
Decided: July 27, 2023
APPEARANCES:
For the Plaintiff:
Michael J. Sipos, Esq.
P.O. Box 2069
Kolonia, Pohnpei FM 96941
For the Defendant:
Josephine Leben James, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
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When a motion is renewed, lest it be deemed consented to, the better practice is to file an opposition. Even so, an unopposed motion will be denied for the lack of good grounds. Pohnpei Port Auth. v. FSM, 24 FSM R. 202, 204 n.2 (Pon. 2023).
The standard for granting a motion for summary judgment is whether the pleadings, depositions, answers to interrogatories, and admissions on file, taken together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden is on the movant, and the court, in reviewing a summary judgment motion, must view the facts, and any inferences deduced therefrom, in the light most favorable to the party opposing the summary judgment. Pohnpei Port Auth. v. FSM, 24 FSM R. 202, 204-05 (Pon. 2023).
Before summary judgment will be granted it must be clear what the truth is, and any doubt as to the existence of a genuine issue of material fact will be resolved against the movant. Pohnpei Port Auth. v. FSM, 24 FSM R. 202, 205 (Pon. 2023).
The order of burdens in a summary judgment motion is that the moving party has the initial burden of showing, through the pleadings, depositions, etc., that there are no triable issues of fact. Once the moving party has done this, the burden shifts to the non-moving party, and it is not enough for the non-moving party to simply disagree with the moving party. The party opposed to the motion must show that there is enough evidence supporting his position to justify a decision upholding his claim by a reasonable trier of fact. If the evidence, affidavits, and pleadings present a sufficient disagreement to require submission to a fact finder, then the motion should be denied. But if the evidence is so one-sided that one party must prevail as a matter of law, then the motion should be granted.Pohnpei Port Auth. v. FSM, 24 FSM R. 202, 205 (Pon. 2023).
The initial burden is on the movant to substantiate with competent evidence that there are no triable issues of fact and that movant is entitled to judgment as a matter of law. The movant's burden is not limited to substantiating the complaint's allegations; it also includes addressing affirmative defenses. Pohnpei Port Auth. v. FSM, 24 FSM R. 202, 205 (Pon. 2023).
The doctrine of collateral estoppel, sometimes called issue preclusion, holds that when an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. Pohnpei Port Auth. v. FSM, 24 FSM R. 202, 207 (Pon. 2023).
Issue preclusion requires the issue's actual litigation, a feature ordinarily not found with default judgments. Nor does a party's purported awareness of the proceedings in which the default judgment was procured make the issue actually litigated. The general rule is that issue preclusion does not apply to default judgments. Pohnpei Port Auth. v. FSM, 24 FSM R. 202, 207 (Pon. 2023).
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DENNIS L. BELCOURT, Associate Justice:
This matter comes before the Court on Plaintiff's motion for summary judgment, filed on May 1, 2023.
Plaintiff Pohnpei Port Authority (PPA) filed this lawsuit on December 16, 2013, claiming the FSM National Government (the National Government) owes it $157,932.40 in docking fees for the period from April 1, 2004 to July 12, 2009, during which the National Government's Marine Surveillance Division berthed a fishing vessel, the Oryo Maru, that it had arrested under a warrant issued by the FSM Supreme Court in a civil dispute.
PPA's stated basis for the obligation is a memorandum of understanding dated August 2, 1989 between the National Government and the State of Pohnpei concerning Marine Surveillance's use of space at the State's dock, including for a patrol boat and for "vessels in the custody of the FSM pending civil and criminal proceedings." While the use of the dock by the FSM of the patrol boat was not to be charged,1 the MOU requires that "[t]he FSM shall guarantee the payment of reasonable and standard docking fees for the use of dock space by vessels under its custody and control apart from said patrol boat."
PPA relies for proof as to the amount of the Government's debt that it had obtained a default judgment in the amount of $157,932.40, entered by this Court against plaintiffs/defendants-in-intervention in Civil Action No. 2003-21. Exhibit B to Motion for Summary Judgment. While the National Government was not a party to that action, PPA points to its involvement in the action, including attending hearings and failing to object to PPA's request for default judgment. PPA takes the position that the National Government's being always informed and directly involved in Civil Action No. 2003-21 binds it to this Court's decision in that matter.
The National Government has argued that the use by the National Government of the dock does not implicate the MOU, because, while its Marine Surveillance took custody of the Oryo Maru, it did not have "control" over the vessel because it was not a party to Civil Action No. 2003-21 and was rather an involuntary custodian, acting at the direction of the Court.2
The standard for granting a motion for summary judgment is whether "the pleadings, depositions, answers to interrogatories, and admissions on file, taken together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FSM Civ. R. 56(c). See also Bank of Guam v. Island Hardware, Inc., 2 FSM R. 281, 284 (Pon. 1986). Moreover, the burden is on the movant, and the Court, in reviewing a motion for summary judgment, must view the facts, and any inferences deduced therefrom, in the light most favorable to the party opposing the summary judgment. Id. Of course, before summary judgment will be granted it must be clear what the truth is, Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962), and any doubt as to the existence of a genuine issue of material fact will be resolved against the movant.
Berman v. Santos, 7 FSM R. 231, 235 (Pon. 1995).
The order of burdens in a motion for summary judgment is as follows:
[T]he moving party has the initial burden of showing, through the pleadings, depositions, etc., that there are no triable issues of fact. Once the moving party has done this, however, the burden shifts to the non-moving party. It is not enough for the non-moving party to simply disagree with the moving party and attempt to show, through affidavits or otherwise, that there is a triable issue. The party opposed to the motion "must show that there is enough evidence supporting his position to justify a decision upholding his claim by a reasonable trier of fact. If the evidence, affidavits, and pleadings present a sufficient disagreement to require submission to a fact finder, then the motion should be denied. If, however, the evidence is so one-sided that one party must prevail as a matter of law, then the motion should be granted."
Alik v. Kosrae Hotel Corp., 5 FSM R. 294, 295-96 (Kos. 1992) (citations omitted).
FSM Rule of Civil Procedure 56(e) requires as follows:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.
The initial burden is thus on the movant, in this case PPA, to substantiate, with competent evidence, that there are no triable issues of fact and that movant is entitled to judgment as a matter of law. The scope of the burden on movant is not limited to PPA substantiating the allegations of the complaint; it also includes addressing affirmative defenses. Andrew v. Heirs of Seymour, 19 FSM R. 331, 340 (App. 2014) (In order to be entitled to summary judgment, a movant, even when the motion is unopposed, must overcome all of the adverse parties' affirmative defenses and counterclaims).3
A. Undisputed Issues As Shown by Pleadings
It is undisputed as follows:
1. PPA is a corporate entity created under state law of Pohnpei and is the successor in interest to the State of Pohnpei under prior use agreements for port facilities now under its jurisdiction. Compl. para. 1.
2. On or about August 2, 1989, the FSM National Government, through President Haglelgam, executed a contract with Pohnpei State "regarding the use of the dock at Deketik at Kolonia Harbor." Compl. para. 4.
3. The contract contained the following terms:
a. It was entitled "Memorandum of Understanding Between the National Government of the Federated States of Micronesia and Pohnpei State Regarding the Use of the Dock at Deketik at Kolonia Harbor." Compl. para. 4, Ex. A.
b. The Memorandum of Understanding (hereinafter MOU) is entered into between the (FSM) and the Government of the State of Pohnpei (State) in order to set forth the understandings and agreements between the two governments regarding the use by the FSM of the dock and contiguous area at Kolonia Harbor which is owned, operated and controlled by the State. Id.
c. The parties understand and stipulate that
i. [t]he dock and contiguous area at Deketik at Kolonia Harbor is owned, operated, and otherwise controlled by the State through the Division of Sea & Air Transportation of the Pohnpei State Department of Public Works."
ii. [t]he Division of Marine Surveillance of the Office of the Attorney General of the FSM (Marine Surveillance) requires use of approximately 120 feet of space at said dock for the berthing and exclusive use of a patrol boat."
iii. Marine Surveillance requires use of contiguous space for the building and operation of a workshop for the care and maintenance of said patrol boat."
iv. Marine Surveillance at various times requires the use of dock space for the berthing of vessels in the custody of the FSM pending civil and criminal proceedings.
v. The State requires the services of Marine Surveillance for Medical Evacuations and for Search and Rescue operations until such time as the State comes into possession of a proposed vessel suitable for such purposes.
Id.
d. "The State shall provide a space sufficient for the berthing of [the] Marine Surveillance patrol boat along with contiguous space for the construction of a workshop, without charge or other encumbrance unless subsequently agreed to by both parties, and all such space shall be for the exclusive use of Marine Surveillance." Id.; Compl. para. 5.
e. "The FSM shall perform services as required by the State for emergency medical evacuations requiring use of said patrol boat, as well as necessary Search and Rescue operations until the receipt by the State of a vessel sufficient for performance of these services, PROVIDED however that the State shall reimburse the FSM for fuel for such operations as are required by the State." Compl. para. 4, Ex. A.
f. "The FSM shall guarantee the payment of reasonable and standard docking fees for the use of dock space by vessels under its custody and control apart from said patrol boat." Id.
g. "The FSM shall be responsible for security of the dock space and contiguous space assigned to the FSM. The FSM shall pay for all utilities and other additional services provided to Marine Surveillance, FSM." Id.
h. The agreement was signed August 4, 1989. Id.
4. From time-to-time PPA has requested payment from the FSM on [the vessel Oryo Maru] account under the guarantee provisions of the contract. The FSM, however, has failed or refused to remit payment on the account and to date no payment has ever been made." Compl. para. 7.
B. Issue Preclusion
As noted above, PPA relies on the default judgment entered by this Court in PPA's against Plaintiffs and Defendants-in-Intervention RG and Lee in Civil Action No. 2003-021. RG and Lee were found liable on failure to pay pursuant to a court order dated March 12, 2004, which provided as follows: "The Plaintiffs shall bear the costs of all dockage fees for the F/V ORYO MARU and shall provide evidence of payment of the same to the FSM National Police, through the FSM Attorney General's Office."
PPA asks this Court to take judicial notice of the proceedings in Civil Action No. 2003-021 to meet its burden of showing that there is no genuine issue of material fact as to the National Government's liability and the amount owed by it.
PPA does not expressly state a legal theory for why the default judgment against RG and Lee establishes a prima facie case for the National Government's liability to it, and this Court can only surmise that PPA's basis must be that the default judgment constitutes issue preclusion as to the National Government's liability. However, reliance on issue preclusion fails PPA, as the default judgment is not a basis for issue preclusion.
1. Elements of Issue Preclusion/Collateral Estoppel
This Court has stated:
The doctrine of collateral estoppel, sometimes called issue preclusion, holds that "[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Restatement (Second) of Judgments § 27 (1982).
Mid-Pacific Constr. Co. v. Semes (II), 6 FSM R. 180, 185 (Pon. 1993).
2. Application
The default judgment against RG and Lee is not factually preclusive, as issue preclusion requires actual litigation of the issue, a feature ordinarily not found with default judgments. Id. at n.3 (in the case of a judgment entered by confession, consent, or default, none of the issues is actually litigated). Nor can this Court conclude that the National Government's purported awareness of the proceedings in which the default judgment was procured make the issue actually litigated. In short, this case falls within the general rule that issue preclusion does not apply to default judgments. Weinstein v. Islamic Republic of Iran, 175 F. Supp. 2d 13, 19 (D.D.C. 2001).
Further, as an issue of law, liability of the National Government based on the MOU is not the same as liability of RG and Lee, as they are founded upon different instruments––one an intergovernmental agreement, the other a remedial court order––that are differently worded, and therefore they present different legal issues.
Thus, for the lack of a prima facie basis for summary judgment, this Court denies PPA's motion.
PPA's motion fails to establish a prima facie basis for summary judgment. It is therefore denied.
_______________________________Footnotes:
1 The MOU also provides that the FSM patrol boat would be available to perform services as required by the State for emergency medical evacuations and search and rescue, and according to an earlier court filing by PPA, its regulations except government vessels from its dockage fees. PPA Seaport Reg., Ch. 10, § 1003. See Mot. for Default J. Against Defs. in Intervention, Civil Action No. 2003-21, Ex. A to the Dec. 5, 2014 Joint Status Rep. in this proceeding.
2 The National Government made its position known in an opposition to an earlier (identical) motion for summary judgment, but has not responded to the May 1, 2003 renewal. When a motion is renewed, lest it be deemed consented to, the better practice is to file an opposition. Even so, an unopposed motion will be denied for the lack of good grounds. FSM Social Sec. Admin. v. Chuuk Public Utility Corp., 16 FSM R. 333, 334 (Chk. 2009) (failure to assert meritorious defense as grounds for denial of motion to vacate an entry of default); Berman v. Pohnpei, 17 FSM R. 360, 374 (App. 2011) (trial court denied unopposed cost request on ground of inadequate factual showing); Pacific Fin. Corp. v. David, 21 FSM R. 5, 6 (Chk. 2016) (motion for summary judgment failed to overcome statute of limitations defense); In re Parcel No. 046-A-01, 6 FSM R. 149, 152 (Pon.1993) (unopposed motion that fails to comply with Civil Rule 7(b) is denied). As this Court denies PPA's motion is denied for failure to establish a prima facie case for summary judgment, I do not reach the merits of the National Government's position at this time.
3 PPA's motion fails to address the National Government's affirmative defenses.
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