[24 FSM R. 427]

CIVIL ACTION NO. 2020-3001

Hearing: February 26, 2024
Decided: March 21, 2024

APPEARANCES:

For the Plaintiff:                           Daniel J. Berman, Esq.
                                                    111 Chalan Santo Papa, Suite 503
                                                    Hagatna, Guam 96910

For the Defendant:                      Marstella E. Jack, Esq.
 (F/V Hwa Gwo No. 6,                 P.O. Box 1274
 Huang Shao Chou,                    Colonia, Yap FM 96943
 Capt. Chern Her Tyan)       

For the Defendant:                      Stephen V. Finnen, Esq.
 (Liancheng Overseas Fishery)   P.O. Box 1450
                                                    Kolonia, Pohnpei FM 96941

HEADNOTES

Civil Procedure – Class Actions – Commonality

Commonality of class members is a prerequisite to a class action. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 427, 430 n.1 (Yap 2024).

Civil Procedure – Class Actions – Certification

The law of the case doctrine cannot apply to a class certification order because, if a later submission affects the accuracy of the class definition, the court has the discretion to limit or redefine the class in an appropriate manner to bring the action back within Rule 23. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 427, 431 (Yap 2024).

Civil Procedure – Class Actions – Certification

When appropriate, a class may be divided into subclasses and each subclass treated as a class. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 427, 431 n.2 (Yap 2024).

Civil Procedure – Class Actions – Certification; Judgments – Relief from Judgment

Rule 60(b) applies only to motions for relief from a final order or judgment, not to interlocutory orders, and an order certifying a class is not a final order because it can be altered or amended anytime before final judgment. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 427, 431 (Yap 2024).

Civil Procedure – Class Actions – Certification

Even after a class certification order is entered, the judge remains free to modify it in light of subsequent developments in the litigation. Class counsel is always well advised to keep this in mind throughout the course of any class action litigation. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 427, 431 (Yap 2024).

Civil Procedure – Class Actions – Certification

Since an order certifying a class is not a final order or judgment and can be altered or amended anytime before a judgment on the merits, a party cannot have waived or forfeited its right to challenge the certified class definition before final judgment. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 427, 431 (Yap 2024).

Civil Procedure – Motions – For Reconsideration

Neither the law of the case doctrine nor waiver constrain a trial court's discretion to reconsider its own rulings before final judgment because, except for a properly designated partial final judgment, any other order or other form of decision, however designated, is subject to revision at any time before the entry of judgment adjudicating all the claims and all the parties' rights and liabilities. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 427, 431 (Yap 2024).

Civil Procedure – Class Actions – Certification

The certification of the current plaintiff class as a plaintiff class in two prior unrelated lawsuits, and similar plaintiff classes in other lawsuits, does not mean that the current plaintiff class cannot be modified if the circumstances, such as trial witnesses' in-court testimony, call for it. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 427, 432 (Yap 2024).

Custom and Tradition

Customary law must be shown by evidence. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 427, 433 (Yap 2024).

Civil Procedure – Class Actions; Constitutional Law – Judicial Guidance Clause

The court's application of Civil Procedure Rule 23(c) must be tempered by the Constitution's Judicial Guidance Clause, which requires that court decisions be consistent with this Constitution, Micronesian customs and traditions, and the social and geographical configuration of Micronesia. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 427, 433 (Yap 2024).

Civil Procedure – Class Actions – Certification; Custom and Tradition – Yap

Since Yapese chiefs are generally the repository of knowledge of Yapese custom and tradition, the court may defer to their knowledge and wisdom that the chiefs and the people and villages of all of a municipality are all part of a resource-sharing network that is harmed in common by the damage to the marine resources of the affected reef. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 427, 433 (Yap 2024).

Civil Procedure – Class Actions – Certification

The court may modify the class definition so that it consists of the customary and traditional consumers of the marine resources of the affected reef since the court is not best suited to untangle all of the traditional and customary relationships between the various people of the municipality to determine who benefits more or most from the affected reef resources and then attempt to allocate the benefits between them. People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 24 FSM R. 427, 433 (Yap 2024).

COURT'S OPINION

LARRY WENTWORTH, Associate Justice:

Closing arguments were held on October 9, 2023. During the closings, the defendants raised and argued an issue that amounted to an oral motion to modify the class certification. The court therefore ordered the defendants to file and serve their written motion or brief on whether the certified class should be modified, and in what manner, and why. On October 23, 2023, defendant Liancheng Overseas Fishery (FSM) Co. Ltd. ("Liancheng") filed its Motion to Alter or Amend Class Certification. Liancheng states that the other defendants support its motion. The other defendants acknowledged this during the motion hearing.

On November 13, 2023, the plaintiffs filed, along with supporting affidavits of the class representatives, Chiefs Steven Mar and John Kadannged, the Plaintiffs' Opposition Motion to Alter or Amend Class Certification Filed on October 23, 2023. Liancheng filed its Reply Supporting Motion to Alter or Amend Class Certification on November 24, 2023. This reply contained an unannounced motion to strike the Chiefs' affidavits. The plaintiffs filed their Opposition to the Motion to Strike Affidavits on February 19, 2024.

The court heard the motions on February 26, 2024. The court now modifies the class certification as described and explained below.

I. THE CERTIFIED CLASS

A. Class as Currently Certified

On May 4, 2021, the court certified the plaintiff class as:

those residents of Tomil municipality who by tradition or custom own in common with other residents the rights to use or exploit the natural resources affected by the reef damage, including but not limited to the reef, the water column, fish and other sea life, and other affected natural resources following the damage by the F/V Hwa Gwo No. 6 on September 17, 2020.

People of Tomil ex rel. Mar v. F/V Hwa Gwo No. 6, 23 FSM R. 268, 276 (Yap 2021). Liancheng seeks to narrow this certification.

B. Contentions Concerning Current Class Certification

1. By Liancheng

Liancheng contends that the plaintiff class, as certified, must be modified to limit it to only those persons from Maaq village in Tomil municipality who own or whose rights to use or exploit the natural resources of Federei Reef [sic] were affected by the F/V Hwa Gwo No. 6's grounding on September 17, 2020, and its subsequent sojourn on the reef. Liancheng asserts that the plaintiffs failed to prove any damage to most persons in the certified class, but only showed damages to Maaq village persons. Liancheng argues that the plaintiffs have failed to show the necessary commonality¹ between the current class members, for that definition to remain as the certified class. It concludes that the plaintiff class should be much smaller.

For relief, Liancheng asks that the certified class be reduced to Maaq village residents and that, if the court orders individualized damages, those damages be limited to the residents of Maaq who actually use the reef. Liancheng also asks that the court consider its proposal to fund a cleanup of the debris found to still be littering the reef.

2. By Plaintiffs

The plaintiffs assert that, although the tabinaw that have the rights of refusal and management over Faygaarad Reef are located in Maaq village, the usage of marine resources from that reef are interconnected to the greater People of Tomil Municipality on many different levels and for many reasons and that it is not possible to untangle them because it is all part of the customary resource-sharing network. The plaintiffs support this position with affidavits from class representatives, Chiefs Steven Mar and John Kadannged.

The plaintiffs contend that Liancheng's motion must be denied 1) because it is not supported by any Yap witnesses or affidavits from knowledgeable Yapese; 2) because the law of the case doctrine prevents an issue in a case from later being redetermined in the same case; 3) because Liancheng's motion is an untimely or belated Rule 60(b) motion for relief from an order; 4) because Chiefs Steven Mar, John Kadannged, and Jesse Faimaw represent the class and regulate the use of marine resources where the damage occurred; 5) because the People of Tomil have been certified as a plaintiff class in two prior unrelated lawsuits and similar plaintiff classes have been certified for other Yap municipalities; 6) because class action procedure is liberally construed; 7) because Liancheng has waived or forfeited its rights to object to the current class certification by not raising these grounds when the plaintiffs first moved for class certification; and 8) because, when it comes to Liancheng's cleanup proposal, the court should issue a declaratory judgment that Liancheng must clean up the site as well as order judgment for proven monetary damages.

3. Liancheng's Reply

Liancheng counters that its motion, while not supported by affidavit, is based on and is supported by the testimony of the plaintiffs' witnesses during trial and that that testimony did not support the class definition as certified. Liancheng moves to strike the affidavits of Chiefs Steven Mar and John Kadannged because there was no showing that they could not have testified during trial to what is in the affidavits' contents. Liancheng further contends 1) that the law of the case doctrine cannot apply if the original class certification is not supported by the evidence at trial; 2) that, despite the class certification of the People of Tomil in prior cases, the plaintiffs still bear the burden to show that it is the proper class in this case; and 3) that Liancheng never waived or forfeited its right to challenge the class certification because its challenge to the certified class is based on evidence adduced at trial.

Liancheng also argues that if the court makes any award of "individual damages," those must be limited to only Maaq village residents; that, if cleanup damages are awarded, they should only be made to Maaq village; and that, if there is any dispute between Maaq and Tomil over entitlement to damages, that should be handled in a proceeding not involving Liancheng. Liancheng does not want to be involved in any proceeding involving the allocation of damages among the plaintiffs or involving plaintiffs' attorney's fees.

II. THE MOTIONS

A. Liancheng's Ability to Challenge Class Certification

1. Law of the Case Doctrine Inapplicable

The law of the case doctrine does not prevent the court from altering or amending the class definition in its May 4, 2021 order certifying the plaintiff class. The court noted in the May 4, 2021 order that "if an order defining and certifying a class action later proves inadequate, the order may be altered or amended before a decision on the merits." F/V Hwa Gwo No. 6, 23 FSM R. at 274.

The court has stated this principle before. See People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM R. 262, 269 (Yap 2012); People of Weloy ex rel. Pong v. M/V Micronesian Heritage, 12 FSM R. 613, 618 (Yap 2004). If a later submission affects the accuracy of the class definition, the court has the discretion to limit or redefine the class in an appropriate manner² to bring the action back within Rule 23. F/V Teraka No. 168, 18 FSM R. at 269. Thus, the law of the case doctrine cannot apply. The court never has the discretion to apply the law of the case doctrine to a class certification order.

2. Rule 60(b) Inapplicable

The plaintiffs' contention that Liancheng's motion is a belated or untimely Rule 60(b) motion is also meritless. Rule 60(b) applies only to motions for relief from a final order or judgment, Berman v. Pohnpei, 23 FSM R. 17, 19 (Pon. 2020); Hartmann v. Department of Justice, 21 FSM R. 468, 474 (Chk. 2018); People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM R. 307, 312 (Yap 2012), not to interlocutory orders.

An order certifying a class is not a final order because it can be altered or amended anytime before final judgment. FSM Civ. R. 23(c)(1) ("An order under this subdivision [certifying a class] . . . may be altered or amended before the decision on the merits."). "Even after a certification order is entered, the judge remains free to modify it in light of subsequent developments in the litigation." General Tel. of S.W. v. Falcon, 457 U.S. 147, 160, 102 S. Ct. 2364, 2372, 72 L. Ed. 2d 740, 752 (1982). Class counsel is always well advised to keep this in mind throughout the course of any class action litigation.

3. Waiver or Forfeiture Inapplicable

Since an order certifying a class is not a final order or judgment and can be altered or amended anytime before a judgment on the merits, Liancheng could not have waived or forfeited its right to challenge the current certified class definition, before final judgment. Neither the law of the case doctrine nor waiver constrain a trial court's discretion to reconsider its own rulings before final judgment because, except for a properly designated partial final judgment, any other "order or other form of decision, however designated, . . . is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." FSM Civ. R. 54(b). And, the class certification rule expressly authorizes revision. FSM Civ. R. 23(c)(1).

4. Other Inapplicable Objections

Obviously, even though the People of Tomil have been certified as a plaintiff class in two prior unrelated lawsuits and similar plaintiff classes have been certified for other Yap municipalities, that does not mean that the plaintiff class in this case cannot be modified if the circumstances call for it. Since Liancheng is relying on the trial witnesses' in-court testimony to support its motion to modify, the lack of supporting affidavits from knowledgeable Yapese is not fatal to Liancheng's motion. Class action procedure may be liberally construed, but that, obviously, does not prevent modification of the class definition if the circumstances call for it.

And the court should not consider the plaintiffs' suggestion that Liancheng's cleanup proposal should instead be a declaratory judgment ordering Liancheng to clean up the reef. It is inappropriate to consider that a part of the class modification motion. It will be considered when the court makes its damage award and directs judgment.

B. Liancheng's Motion to Strike Affidavits

1. Posture

Liancheng moves to strike the affidavits of Chiefs Steven Mar and John Kadannged because there was no showing that those affiants could not have given the contents of their affidavits as evidence during their trial testimony.

The plaintiffs counter that Liancheng's reply to the plaintiffs' opposition contained a "surprise" and that they had not filed their opposition to the motion to strike earlier because the motion to strike was "not in the record." The plaintiffs argue that the motion to strike does not follow the motion practice required by Rule 7(b) and that a Rule 12(f) motion to strike is disfavored and only applies to pleadings, not motions.

The court agrees that it was rather disingenuous of Liancheng to slip a motion to strike the Chiefs' affidavits into its reply without announcing that motion in the reply's caption and without prior notification to opposing counsel as required by Civil Procedure Rule 6(d). The motion's nature, however, is one to exclude evidence, not to strike a pleading.

2. Trial Procedure

Trial in this case did not follow the usual orderly procedure. Because of the covid pandemic and quarantine, the parties' expert witnesses were unable to personally view the damage sites before arriving on Yap for trial, which was not long after the country (and Yap state) reopened. Consequently, the court allowed, either at a party's request or through the parties' acquiescence, certain discovery to be conducted during trial and evidence to be taken out of order and expert reports, that did not exist at the trial's start, to be admitted as evidence, and responses to those reports to be created and admitted. The parties were thus permitted greater leeway than ordinary in producing evidence.

3. Customary Law Evidence

The affidavits' contents are not evidence of factual matters concerning reef damage or its monetary value, but are evidence of what the Yapese customary law is in regard to the distribution of marine resources in the affected area. The Chiefs explain that if marine resources are not available from the affected reef area for Maaq village and those other Tomil residents to whom those resources might be directed, then the Tomil marine resources must be rebalanced and other Tomil marine resources must be redirected to Maaq beneficiaries to make up for their loss. The Chiefs further explain that there are no set ownership boundaries or exclusivity of benefits for the affected reef, but that it was the chiefs of the tabinaw that have authority over the affected reef that have right to refuse usage of, and the right to control management of, the affected reef, and that those tabinaw are located in Maaq.

Customary law must be shown by evidence. See Narruhn v. Aisek, 16 FSM R. 236, 240 (App. 2009) (the relevant custom should be shown by a preponderance of the evidence). Liancheng states that it does not seek to submit responses to the Chiefs' affidavits or to reopen matters. Under the circumstances, the court would have allowed Liancheng to respond to the Chiefs' affidavits or to reopen the matters averred to therein. But Liancheng only seeks to have the Chiefs' affidavits eliminated from the record.

Since the customary law is important to the resolution of the case and, especially, to class certification, the court, in its discretion, denies the motion to strike.

C. Definition of Certified Class

Liancheng asserts that it does not seek to decertify the plaintiff class but rather asks that the plaintiff class be narrowed or redefined so that it is limited to Maaq village residents. Liancheng's biggest concern seems to be that if the court awards individual or individualized damages, as it did in People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM R. 403, 420 (Yap 2006) ($85 times number of persons in Rull and Gilman for loss of use of inner lagoon for bathing and swimming). Liancheng argues that the award should be based only on the number of persons in Maaq (around 100-150), rather than the greater number of persons in Tomil (about 1,231). By "individual damages" Liancheng seems to mean damages calculated on the basis of, or as a multiplier of, the approximate number of persons in the class. But there was little or no evidence of that type of damages in this case. Damages evidence at trial focused on and addressed the value of the reef itself, and its resources, and the damage directly done to it. Judgment will be limited to the diminution of the affected reef's value and to clean up costs.

The court's application of Civil Procedure Rule 23(c) must be tempered by the Constitution's Judicial Guidance Clause, which requires that court decisions "be consistent with this Constitution, Micronesian customs and traditions, and the social and geographical configuration of Micronesia." FSM Const. art. XI, § 11. The Chiefs' affidavits are evidence of the relevant Micronesian (Yapese main island) customs and traditions. Yapese chiefs are generally the repository of knowledge of Yapese custom and tradition. The court will therefore defer to their knowledge and wisdom that the chiefs and the people and villages of all of Tomil municipality are all part of a resource-sharing network that is harmed in common by the damage to the marine resources of Faygaarad Reef.

Accordingly, the class should not be defined as those who "own in common" the affected reef, but should be redefined as those who use or share in common the affected marine resources. The court will therefore modify the class definition so that it consists of the customary and traditional consumers of the marine resources of the affected reef – all the Tomil municipality beneficiaries of the resources of the reef that is managed by chiefs of tabinaw located in Maaq village but to the ultimate benefit of all of Tomil. The court does not feel that it is best suited to untangle all of the traditional and customary relationships between the various people of Tomil to determine who benefits more or most from the Faygaarad Reef resources and attempt to allocate the benefits between them. That is a task best left to the Chiefs of Tomil in this case.

III. CONCLUSION

NOW THEREFORE IT IS HEREBY ORDERED that the plaintiff class is modified or redefined to consist of:

those residents of Tomil municipality who by tradition or custom share in common the benefits from the usage and consumption of the natural resources of the reef, including the reef, the water column, fish and other sea life, and other affected natural resources, affected by the grounding of the F/V Hwa Gwo No. 6 on September 17, 2020, and its later presence on the reef.

Footnotes:

¹ Commonality of class members is a prerequisite to a class action. FSM Civ. R. 23(a)(2).

² Including, when appropriate, "a class may be divided into subclasses and each subclass treated as a class." FSM Civ. R. 23(c)(4)(B)