FSM SUPREME COURT TRIAL DIVISION
Cite as Salomon v. Wentworth, 24 FSM R. 486 (Pon. 2024)
DR. BERYSIN SALOMON, M.D., THE ESTATE OF
NANCY N. SALOMON, and DR. BERYSIN SALOMON,
as Administrator of Nancy Salomon Estate,
Plaintiffs,
vs.
LARRY WENTWORTH, as Associate Justice of
FSM Supreme Court, NORA E. SIGRAH, and FSM
DEVELOPMENT BANK,
Defendants.
CIVIL ACTION NO. 2024-001
ORDER ON PENDING MOTIONS
Dennis L. Belcourt
Associate Justice
Decided: May 22, 2024
APPEARANCES:
For the Plaintiff:
Joseph S. Phillip, Esq.
P.O. Box 464
Kolonia, Pohnpei FM 96941
For the Defendant:
Seth Foreman, Esq.
(Wentworth)
Roberts Fowler & Visosky LLP
865 South Marine Corps Drive
Tamuning, Guam 96913
For the Defendant:
Nora E. Sigrah, Esq.
(Sigrah & Dev. Bank)
P.O. Box M
Kolonia, Pohnpei FM 96941
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The court may sua sponte order correction of the caption to reflect the correct spelling of a party's name because a caption can always be amended to correct technical defects. Salomon v. Wentworth, 24 FSM R. 486, 490 n.1 (Pon. 2024).
The taking of an appeal does not automatically stay trial division enforcement (or compel granting a stay on request) of a money judgment; rather, an appellant may be granted a stay on motion and provision of adequate security as determined by the court. Salomon v. Wentworth, 24 FSM R. 486, 490 (Pon. 2024).
Pohnpei state law authorizes sales of mortgaged property upon foreclosure. Salomon v. Wentworth, 24 FSM R. 486, 490 (Pon. 2024).
While a court may in its discretion overlook a movant's failure to provide the required Rule 6(d) certification, movants who file motions without certifications do so at the risk of having their motions denied without prejudice. Salomon v. Wentworth, 24 FSM R. 486, 494 (Pon. 2024).
Rule 6(d)'s purpose for requiring motions to contain a movant's certification that a reasonable effort has been made to obtain the opposing party's agreement initiates a dialogue between the parties and decreases the cost of litigation by minimizing paperwork and eliminating unnecessary court appearances when compromises are reached, and in turn reduces the court's workload thereby increasing its ability to attend to other matters and minimize delays. Salomon v. Wentworth, 24 FSM R. 486, 494 (Pon. 2024).
Attempts at obtaining an opposing party's agreement to a motion are excused when it is apparent from the motion's nature that no agreement would ever be considered by, or forthcoming from, the opposing party and that any attempt to seek such an agreement would be futile. Salomon v. Wentworth, 24 FSM R. 486, 494 (Pon. 2024).
Since Rule 6(d) does not prescribe a specific consequence for its violation, the court may enforce noncompliance with Rule 6(d) certification requirement by something other than denying the motions. Salomon v. Wentworth, 24 FSM R. 486, 495 (Pon. 2024).
A decision by a trial division that it lacks jurisdiction to take action is not res judicata. Salomon v. Wentworth, 24 FSM R. 486, 495 (Pon. 2024).
Under long established controlling precedent, the taking of an appeal from a money judgment does not stay enforcement of that judgment since the mere filing of a notice of appeal does not affect a judgment's validity. The trial court retains jurisdiction to enforce the judgment, unless a stay has been granted. Salomon v. Wentworth, 24 FSM R. 486, 495-96 (Pon. 2024).
Absent adequate security, a motion for stay of a money judgment does not entitle an appellant to a stay. Salomon v. Wentworth, 24 FSM R. 486, 496 (Pon. 2024).
When the complaint is facially deficient, the court may decline to consider matters outside the pleadings that would convert the Rule 12(b)(6) motion to a Rule 56 summary judgment motion. Salomon v. Wentworth, 24 FSM R. 486, 496 n.6 (Pon. 2024).
A judgment obtained as the result of a fraud upon the court could constitute a sufficient basis for a claim for relief from that judgment. Fraud upon the court is defined as the most egregious misconduct directed to the court itself, such as bribery of a judge or fabrication of evidence by counsel, which must be supported by clear, unequivocal and convincing evidence. As such, bias towards a party is not fraud upon the court, but bribery could be. Salomon v. Wentworth, 24 FSM R. 486, 496-97 (Pon. 2024).
To allege the circumstances constituting fraud with the required particularity, a plaintiff must identify particular statements and actions and specify why they are fraudulent. Conclusory allegations do not satisfy Rule 9(b)'s requirements, and they subject the pleader to dismissal. Salomon v. Wentworth, 24 FSM R. 486, 497 (Pon. 2024).
Even if a complaint were to state a claim for fraud on the court, the plaintiffs' relief would likely be limited to relief from the judgment. Salomon v. Wentworth, 24 FSM R. 486, 497 n.7 (Pon. 2024).
The rationale for denying the trial division authority to rule on an issue on direct appeal from it would also apply where the issue is being raised in a separate action filed in the trial division. Salomon v. Wentworth, 24 FSM R. 486, 497 (Pon. 2024).
A judge is generally granted absolute immunity from civil liability for acts done in the exercise of a judicial function. A judge loses the cloak of judicial immunity in only two instances. A judge is not immune for actions not taken in the judge's judicial capacity, and a judge is not immune for actions, though judicial in nature, taken in complete absence of all jurisdiction. Salomon v. Wentworth, 24 FSM R. 486, 498 (Pon. 2024).
The factors determining whether an act by a judge is a "judicial" one relate to the nature of act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity. An order of foreclosure of a mortgage's promissory note, an order of sale of mortgaged land, and a writ of execution are all orders in enforcement of a judgment, and clearly judicial acts assigned to the FSM Supreme Court trial division justices. Salomon v. Wentworth, 24 FSM R. 486, 498 (Pon. 2024).
Complete absence of all jurisdiction is more than in excess of jurisdiction or even grossly in excess of jurisdiction. An act is not in complete absence of all jurisdiction even if flawed by the commission of grave procedural errors or if done maliciously or corruptly. Salomon v. Wentworth, 24 FSM R. 486, 498 (Pon. 2024).
A trial division justice did not lose all jurisdiction when the litigants appealed or when they requested a stay without offering any security for the money judgment because an appeal does not divest the trial division from jurisdiction to issue orders enforcing a money judgment, but such enforcement may be stayed on an appeal by giving a supersedeas bond or other adequate security approved by the court. With no stay in place, there is no basis for inferring that the justice was exceeding his authority when he issued enforcement orders. But, even if the judge had issued the orders while a stay of enforcement was in place, or had ordered sale of the land in violation of the Pohnpei Constitution, that would be, at most, conduct that is grossly in excess of jurisdiction, not in complete absence of jurisdiction. Salomon v. Wentworth, 24 FSM R. 486, 498-99 (Pon. 2024).
A government lawyer cannot represent the government when representation of that client may be materially limited by the lawyer's own interests, but courts must view with caution any motion to disqualify opposing counsel because such motions can be misused as a harassment technique because resolving conflict-of-interest questions is primarily the responsibility of the lawyer undertaking the representation. But a court may, in civil litigation, raise the question when there is reason to infer that the lawyer has neglected the responsibility. Salomon v. Wentworth, 24 FSM R. 486, 499 (Pon. 2024).
The FSM Supreme Court may consider replies to motions to the extent that they address the response, and not to the extent that the reply may raise issues extraneous to the original motion or to the response. Salomon v. Wentworth, 24 FSM R. 486, 499 (Pon. 2024).
Rule 12(f) "immaterial" matter consists of statements and averments bearing no essential or important relationship to the claim for relief or the defenses being pled. Salomon v. Wentworth, 24 FSM R. 486, 500 (Pon. 2024).
A statement is scandalous if it unnecessarily reflects on an individual's moral character or states anything in repulsive language that detracts from the dignity of the court. Thus, allegations of sexual or intimate affairs between counsel and third parties, even if believed, can have no purpose or effect other than to unnecessarily reflect on the moral character of those persons may be stricken as immaterial and scandalous. Salomon v. Wentworth, 24 FSM R. 486, 500 (Pon. 2024).
Allegations of favoritism or quid pro quo are statements that may be properly addressed under Rule 12(b)(6), but are not subject to Rule 12(f). Salomon v. Wentworth, 24 FSM R. 486, 500 (Pon. 2024).
The plaintiffs' contention that the trial court justice lost jurisdiction to enforce the money judgment when the appeal was filed is frivolous because the trial division's authority to enforce a money judgment after an appeal is filed, when there is no stay order (which may only be issued upon provision of adequate security), is controlling law in the FSM, so the plaintiffs' assertion that the justice violated their rights by issuing orders enforcing the money judgment after the appeal is thus not warranted by existing law as it is based on legal theories that are plainly foreclosed by well-established legal principles and authoritative precedent. As the plaintiffs' counsel has not plainly stated that he is arguing for a reversal or change of law and presented a nonfrivolous argument in support of that position, sanctions are warranted. Salomon v. Wentworth, 24 FSM R. 486, 500-01 (Pon. 2024).
The plaintiffs' allegations of sexual and intimate affairs concerning a defendant were interposed for improper purposes because the allegations were both frivolous and immaterial to any of the plaintiffs' claims and the plaintiffs made no bona fide effort to justify the allegations in their response to the defendants' motions for sanctions, which only underscores that the allegations were made for an improper purpose, i.e., to harass and because the insufficient allegations against the defendant in her individual capacity is additional evidence of the intent to harass since reliance on insufficient allegations, while not by itself proving that the pleading was sanctionable because it was not well grounded in fact, may support a conclusion that the pleading was interposed for improper purposes. Salomon v. Wentworth, 24 FSM R. 486, 501 (Pon. 2024).
The court may decline to rule on whether the plaintiffs' mere assertion of jurisdiction by filing the complaint is sanctionable when it has already determined that various allegations in the complaint are sanctionable. Salomon v. Wentworth, 24 FSM R. 486, 501 (Pon. 2024).
By whom Rule 11 sanctions should be borne depends on the respective roles of lawyer and client in the offending conduct. Salomon v. Wentworth, 24 FSM R. 486, 501 (Pon. 2024).
The court's discretion includes the power to impose Rule 11 sanctions on the client alone, solely on counsel, or on both. This is desirable because there are circumstances in which one of these actions is more appropriate than the other two. For example, when the offending conduct relates to work that lies within the counsel's supposed competence, especially when it is beyond the client's understanding, it is the former who should be sanctioned, not the latter. Salomon v. Wentworth, 24 FSM R. 486, 501 (Pon. 2024).
Rule 11 sanctions should be jointly and severally borne by attorney and client when the violations involve both the means and objectives of the representation, for which attorney and client both bear responsibility and authority and the allegations in support of the sanctionable filings were based on input from both counsel and client. Salomon v. Wentworth, 24 FSM R. 486, 501-02 (Pon. 2024).
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DENNIS L. BELCOURT, Associate Justice:
This matter is before this Court on (1) the February 9, 2024 motions by defendants Nora E. Sigrah and the Federated States of Micronesia Development Bank ("FSMDB Defendants") to dismiss which is granted, and to strike, which is granted in part, (2) the March 1, 2024 motion of Defendant Larry Wentworth ("Justice Wentworth") to dismiss,1 which is granted, (3) the March 11, 2024 motion of FSMDB Defendants for an order imposing Rule 11 sanctions, which is granted, (4) the March 15, 2024 motion of Plaintiffs to disqualify Nora E. Sigrah as counsel for FSMDB, which is denied, and (5) Plaintiffs' April 30, 2024 motions to strike Justice Wentworth's Reply Memorandum, which is denied, and to disqualify him from presiding over and hearing this case, which is denied as moot.
In this matter, this Court is requested to address the question whether the appeal of a money judgment automatically operates as a stay of enforcement of the judgment by the trial division pending the outcome of the appeal (e.g., by divesting the trial division of jurisdiction to take such actions) or whether the trial division is duty-bound to impose such a stay or refrain from enforcement notwithstanding the failure of the appellant to provide security. The answer is that the taking of an appeal does not automatically stay trial division enforcement (or compel granting a stay on request) of a money judgment; rather, an appellant may be granted a stay on motion and provision of adequate security as determined by the court.
The Complaint also seeks to hold the defendants liable for ordering the sale of now-deceased appellant Nancy Solomon's land on the purported basis that the sale of land was not authorized by statute, and therefore contrary to the Pohnpei Constitution. In fact, the State of Pohnpei has authorized sales of mortgaged property upon foreclosure. 41 Pon. C. § 6-125 (Pohnpei Mortgage Act).
Finally, the Complaint seeks actual and punitive damages against Justice Wentworth in his capacity as a justice for actions as a judge. Whether interpreted as seeking liability against him personally or in his official capacity, i.e., against the Court, liability is barred by the doctrine of judicial immunity.
As the complaint erroneously predicates all relief, including damages for the emotional distress and due process claims, on the trial division having no jurisdiction to issue orders enforcing the money judgment and no authority to order sale of the land, I grant the FSMDB Defendants' and Justice Wentworth's motions to dismiss.
A. The Complaint
The Complaint alleges that after the trial division granted a motion for summary judgment against the plaintiffs Berysin Salomon and the Estate of Nancy Salomon (the Salomons) in Civil Action No. 2014-021 (consolidated with Civil Action No. 2014-023), at the request and "support by" [sic] Defendant Nora E. Sigrah, the Salomons appealed the summary judgment and also sought stays in the trial division and the appellate division. Contending that Justice Wentworth had lost all jurisdiction "as it had been vested in the appellate court when the Salomons filed their appeal of the summary judgment," the Salomons allege that Justice Wentworth "ignored and did not act on the stay at the trial division where he is obligated and required to rule on a stay."
Instead, the Salomons allege, Justice Wentworth, acting without jurisdiction because of the appeal, issued an order of foreclosure of a mortgage's promissory note, an order of sale of land owned by plaintiff Nancy Salomon (lot no. 068-D-06), and a writ of execution over funds belonging to the Salomons' former lawyer. The Salomons further allege that such orders "were issued at the request of FSMDB lawyer Nora E. Sigrah and with knowledge that the trial court had no jurisdiction" and that the orders were indeed carried out, resulting in the foreclosure, sale of land and attachment of funds and that the sale of land was without the requisite statutory authorization set forth in Article 12, section 5 of the Pohnpei Constitution.
The Salomons allege that the orders were a "potential improper quid pro quo" between Justice Wentworth and Ms. Sigrah, a conclusion they reach based on their observation of Justice Wentworth's favoritism towards FSMDB.
The Salomons assert that Justice Wentworth's orders violate their right to due process protected in Article IV, section 3 of the FSM Constitution and civil rights pursuant to section 701(3) of title 11 of the FSM Code. Based on those violations, The Salomons request an award of damages against Justice Wentworth, Ms Sigrah, and, based on "vicarious liability and respondeat superior," FSMDB, as well as punitive damages, costs, and attorneys' fees.
B. FSMDB Defendants' Motion to Dismiss Complaint.
FSMDB Defendants move to dismiss the Complaint with prejudice for failure to state a claim upon which relief can be granted, based on Rule 12(b)(6).2 FSMDB Defendants argue that, on the well-pled facts, as corrected by matters of public record (i.e., judicially noticeable facts),3 viewed in the light most favorable to and with inferences drawn in favor of the Salomons, the Complaint fails to state any claim against defendants upon which relief may be granted.
FSMDB Defendants argue that the Salomons have an adequate remedy in the form of their right to appeal Justice Wentworth's orders, that they in fact have filed appeals of those orders as well as the underlying judgment in favor of FSMDB, and, having previously sought a writ of prohibition for the same reason as the stay motions and appeals, were previously denied relief on the same alleged wrongs that form the basis for this matter.
FSMDB Defendants further identify court filings indicating that Justice Wentworth in fact acted upon the requests for stay, contrary to the allegations of the Complaint. With respect to the issue whether Justice Wentworth retained jurisdiction to enforce the judgment against the Salomons after they filed an appeal, FSMDB Defendants argue that under controlling authority from the appellate division that the trial division retained such jurisdiction in the absence of a supersedeas bond to stay enforcement of the judgment.
FSMDB Defendants further contend that Pohnpei law, specifically, the Mortgage Act, authorizes sale of mortgaged land, and thus Justice Wentworth's order that Nancy Salomon's lot be sold is not in violation of the Pohnpei Constitution.
FSMDB Defendants point to the lack of any allegations as to Defendant Sigrah performing any activities alleged in the Complaint other than in her capacity as counsel for FSMDB, arguing that case authority establishes that she has no personal liability for work performed solely in her capacity as FSMDB counsel.
Finally, FSMDB Defendants argue that this matter is barred by res judicata, pointing to an action brought by the Salomons, Civil Action 2021-021, which sought to set aside Civil Action No. 2014-021 (con.) or enjoin its enforcement. The trial division granted a motion to dismiss for failure to state a claim for relief, on which a judgment was entered on August 25, 2022. Exhibit "H" to FSMDB Defendants' motion to dismiss. The Salomons did not take an appeal from that judgment.
C. FSMDB Defendants' Motion to Strike Certain Allegations.
FSMDB Defendants move pursuant to Rule 12(f) to strike allegations in paragraph 12 and footnotes 1 and 2 of the complaint, contending they present "defamatory, immaterial, scandalous and false allegations directed personally against" their counsel, apparently in retribution for her earlier representation of FSMDB in a lawsuit against Plaintiff's counsel in this proceeding. Paragraph 12 and footnote 1 allege that Justice Wentworth improperly favored attorney Nora Sigrah in his rulings, suggesting that those rulings were the result of prior ex parte contacts. Footnote 2 asserts affairs that were sexual or intimate between that counsel and third parties.
D. Justice Wentworth's Motion to Dismiss
Justice Wentworth moves in his official capacity for dismissal pursuant to Rule 12(b)(6) on the basis of judicial immunity, because he acted within his jurisdiction. He argues further that liability of a judge for his actions as a judge exist only in a complete absence of jurisdiction. In contrast, he contends, all acts or omissions he is alleged to have made that the Salomons claim as a basis for his liability are judicial functions or acts of a judicial nature, such as ruling on motions for summary judgment, and, insofar as this action was against Justice Wentworth is an action against the court, the court has judicial immunity. Moreover, Justice Wentworth contends that he did not fail to act on the Salomons' motion for a stay and they did not present a violation of the Salomons' civil rights or the FSM or Pohnpei constitutions. Further, he contends that the Salomons' remedy were there any errors of the trial division would be to appeal to the appellate division.
E. The Salomons' Motion to Enlarge Time and Response to Motions to Dismiss
On March 11, 2024, the Salomons filed a motion to enlarge the time to respond to defendants' motions to dismiss—late for FSMDB's motion but within the ten-day period for Justice Wentworth's motion. The Salomons' proffered reason or cause for enlarging time is their counsel's excruciating and antibiotic-resistant skin infection, for which The Salomons claimed they needed until April 15, 2024 to get the responses on file.
FSMDB Defendants opposed the Salomons' motion to enlarge, contending that the Salomons' counsel failed to demonstrate excusable neglect in not seeking an enlargement of time within the ten-day period. The Salomons response, dated April 2, 2024, was to submit two doctors' notes, dated March 13, 2024 and March 20, 2024, advising him to rest at home for five days.
On March 28, 2024, the Salomons filed their opposition to Defendants' motions to dismiss. The Salomons argue that the motions are "devoid of any showing that there is no set of facts could be proven at trial." Noting that the Defendants have not engaged in discovery, the Salomons further contend that the motion is premature at this stage of the proceeding.
The Salomons contend alternatively that the motions to dismiss should be denied for failure to include a certification pursuant to Rule 6(d).
F. Other Motions
1. Motion to Disqualify Nora Sigrah
On March 15, 2024, the Salomons filed a motion to disqualify Defendant Nora Sigrah from also representing FSMDB, contending she is conflicted by the dual representations. i.e., representing herself, pro se, at the same time as she represents her client, FSMDB, which representation the Salomons contend is a clear (or potential) conflict of interest. The motion also requests that the Court strike FSMDB Defendants' motion to dismiss as irrelevant, impertinent and scandalous based on that conflict of interest.
2. Motion to Disqualify Justice Wentworth
On April 30, 2024, the Salomons moved to disqualify Justice Wentworth from serving as a justice on this case on the grounds that, as a defendant, he is personally involved. FSMDB Defendants respond that the undersigned has been the assigned justice for some months already, that the motion was therefore pointless, and that the Salomons should be sanctioned. Justice Wentworth contends that the possible issue of his assignment to this case is moot.
3. Motion to Strike Reply Memorandum filed by Justice Wentworth
On April 30, 2024, Justice Wentworth having filed a reply in support of his motion to dismiss, the Salomons moved to strike the reply on grounds that it is not permitted by Rule 7. Justice Wentworth points out that the Salomons misread the rules, that under Rule 7 a motion to dismiss is not a pleading and therefore is not subject to strike under Rule 12(f).
4. FSMDB's Motion for Sanctions
FSMDB contends that the Complaint is not well grounded in fact, warranted by existing law, or supported by argument for the extension, modification or reversal of existing law, and was filed for improper purposes, to harass FSMDB Counsel, and increase FSMDB's costs of litigation. Specifically, FSMDB contends that the Complaint presents allegations known to the Salomons to be false, e.g., that Justice Wentworth ignored the stay or rule on the motion for a stay and issued illegal orders after the appeal was taken.
In support of the contention that the Salomons' intended to harass, FSMDB points to allegations in footnotes 1 and 2 that are false, defamatory, scandalous, and made without "relevance whatsoever to" their claims. It further contends that naming her in her personal capacity, threatening her with punitive and compensatory damages, in the absence of any factual basis for naming her in her personal capacity. FSMDB cites to Setik v. Mendiola, 21 FSM R. 537 (App 2018) (where bank officer sued in personal capacity but no actions or omissions taken other than in capacity as officer, the officer is dismissed) as establishing controlling law on which to base an award of sanctions. Id. at 560, 561; see Talley v. Mendiola, 23 FSM R. 317, 331 (Kos. 2021), Ex. B to FSMDB Defendants' motions for sanctions.
The Salomons respond by referring to their counsel's duty of zealous advocacy and fall back upon their contention that "[n]o Pohnpei statute has ever enacted that authorize land sale after adoption of the constitution."
A. Failure of Defendants to Comply with Rule 6(d) Certification Requirements
Rule 6(d) requires that "All motions shall contain certification by the movant that a reasonable effort has been made to obtain the agreement or acquiescence of the opposing party and that no such agreement has been forthcoming." Id. (emphasis added). Defendants' motions to dismiss do not contain certifications, as expressly required in the Rule, or explanations for their absence.
While a court may in its discretion overlook a movant's failure to provide the Rule 6(d) certification, Fan Kay Man v. Fananu Mun. Gov't, 12 FSM R. 492, 496 & n.3 (Chk. 2004), movants who file motions without certifications do so at the risk of having their motions denied without prejudice. Id. at 496 ("A movant who fails to include a certification concerning the opposing party's agreement or acquiescence, takes the risk that, because of the certification's absence, the motion may be denied and that, as a result of the passage of time, the possibility of taking alternative action or of renewing the motion may be gone or its possible scope or effectiveness may be narrowed."); O'Sullivan v. Panuelo, 9 FSM R. 589, 597 and 599 (Pon. 2000) (motion and counter motion for summary judgment denied for lack of certification); Calvary Baptist Church v. Pohnpei Bd. of Land Trustees, 9 FSM R. 238, 239 (Pon. 1999) (Rule 12(b)(6) motion to dismiss and motion to amend complaint denied for lack of certification).
Defendants' motions, in failing to include a Rule 6(d) certification are thus defective and subject to denial. Whether this Court will overlook that defect is discussed next.
1. Purpose of Certification Requirement
The certification requirement has as its aim judicial economy. Compliance with the rule requiring motions to contain a movant's certification that a reasonable effort has been made to obtain the opposing party's agreement initiates a dialogue between the parties and decreases the cost of litigation by minimizing paperwork and eliminating unnecessary court appearances when compromises are reached, and in turn reduces the court's workload thereby increasing its ability to attend to other matters and minimize delays. Calvary Baptist Church, 9 FSM R. at 239.
2. Overlooking Noncompliance
This Court has overlooked noncompliance with Rule 6(d) on the attempts at obtaining an opposing party's agreement to a motion are excused when it is apparent from the motion's nature that no agreement would ever be considered by, or forthcoming from, the opposing party and that any attempt to seek such an agreement would be futile. Fan Kay Man, 12 FSM R. at 496 & n.3 (giving as an example, a motion for sanctions; Tipingeni v. Chuuk, 14 FSM R. 539, 542 (Chk. 2007) (The court cannot conceive that Chuuk would have acquiesced to the plaintiffs garnishing $337,000 in state funds from the national government.); FSM Social Sec. Admin. v. Weilbacher, 17 FSM R. 217, 224 (Kos. 2010) (hostile or adversarial motion, such as motion for order to show cause re: contempt).
A case might be made that seeking agreement or acquiescence to a dispositive motion is likely to be futile.4 However, I am reluctant to indulge Defendants' failure to even explain in their motions why this Court should overlook their noncompliance and rule on the merits of their motions. Rule 6(d) does not prescribe a specific consequence for its violation. In other words, the court may enforce noncompliance with Rule 6(d) by something other than denying the motions. Instead of denying Defendants' motions without prejudice, I deny Defendants' objections that the Salomons' subsequent opposition was untimely.
B. FSMDB Defendants' Motion to Dismiss
1. Failure to State Claim: Res Judicata
FSMDB Defendants argue the Complaint is barred by res judicata, subjecting the Complaint to dismissal. The Salomons sue Nora Sigrah and FSMDB in this action for damages for Nora's requesting and obtaining post-judgment court orders from Justice Wentworth in Civil Action No. 2014-021 (consolidated with Civil Action No. 2014-023) enforcing the judgment, knowing Justice Wentworth had lost jurisdiction by virtue of Plaintiff's or their predecessor's appeal. FSMDB Defendants contend that the claim of lack of jurisdiction has already been litigated to final judgment in their favor in Civil Action No. 2021-021.
In that proceeding, filed on August 12, 2021, the Salomons did indeed sue FSMDB and its officers and employees for damages and to enjoin enforcement measures pending the outcome of the appeal P3-2020 (cons.) based on the judgment's alleged illegality.5 Subsequent to filing the complaint in Civil Action No. 2021-021, the Salomons, having previously requested a stay in Civil Action No. 2014-021 (con.), once again moved the court to stop enforcement of the judgment in that proceeding. That second request was denied, and subsequently, Justice Wentworth granted a motion to dismiss in Civil Action No. 2021-021 (con.), stating, inter alia, that "one FSM Supreme Court trial division justice 'does not have subject matter jurisdiction to set aside orders entered in another separate Trial Division case, nor does he hold subject matter jurisdiction to grant injunctive relief against another Trial Division justice.' Ehsa v. FSM Dev. Bank, 19 FSM R. 253, 257 (Pon. 2014)." Salomon v. Mendiola, 23 FSM R. 623, 628-29 (Pon. 2022), Ex. "H" to FSMDB Defs.' Mot. to Dismiss (Feb. 9, 2024).
However, a decision by a trial division that it lacks jurisdiction to take action is not res judicata. Waguk v. Waguk, 21 FSM R. 60, 73 (App. 2016) (A dismissal for lack of subject-matter jurisdiction does not preclude a second action on the same claim.). Thus, Justice Wentworth's dismissal of the complaint in Civil Action 2021-021 is not res judicata barring this proceeding and dismissal on those grounds is denied.
2. Failure to State a Claim: Justice's Lack of Jurisdiction to Issue Orders
The Salomons based their claim against FSMDB Defendants on their alleged role, inter alia, in causing Justice Wentworth to ignore and not act on the stay and to issue orders enforcing the judgment against the Salomons, having "lost all jurisdiction" to issue such orders when Salomons filed their appeal.
In fact, there was no stay, and the court retained jurisdiction. The Salomons' assertions that Justice Wentworth lacked jurisdiction to issue the orders are based on an erroneous legal contention. Under long established controlling precedent, the taking of an appeal from a money judgment does not stay enforcement of that judgment:
A notice of appeal divests trial court of jurisdiction, except to take action in aid of the appeal. Examples of orders in aid of an appeal include, but are not limited to, applications for release from jail pending appeal, applications for stays pending appeal, taxation of costs on a judgment after notice of appeal filed, considering and denying a Rule 60(b) relief from judgment motions (but not granting one unless the case is remanded), and, since the mere filing of a notice of appeal does not affect a judgment's validity, the trial court also retains jurisdiction to enforce the judgment, unless a stay has been granted. Department of the Treasury v. FSM Telecomm. Corp., 9 FSM R. 465, 467 (App. 2000); Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM R. 520, 522 (App. 1996); FSM Dev. Bank v. Ehsa, 19 FSM R. 128, 130 (Pon. 2013); FSM Dev. Bank v. Arthur, 16 FSM R. 132, 136-37, 140-42 (Pon. 2008).
Setik v. FSM Dev. Bank, 21 FSM R. 505, 518 (App. 2018) (emphasis added).
Nor, absent adequate security, does a motion for stay of a money judgment entitle an appellant to a stay. Panuelo v. Amayo, 10 FSM R. 558, 564 (App. 2002). The Complaint does not allege, nor can it be inferred from the well-pled facts, that the Salomons offered adequate security in support of their stay motions.6
Therefore, the Complaint fails to state a basis for contending that Justice Wentworth violated the Salomons' rights in not acting on or observing a stay or refraining from issuing orders enforcing the judgment. Since the Salomons' claim against FSMDB Defendants is based on their contention that Justice Wentworth's enforcement orders violated their rights, the Complaint fails to state a claim upon which relief may be based against FSMDB Defendants.
3. Quid Pro Quo
The Complaint alleges that Justice Wentworth seemed to favor Defendant Nora Sigrah and says Justice Wentworth's orders were issued in a "potential improper quid pro quo" upon Defendant Sigrah's requests, suggesting possible bribery.
A judgment obtained as the result of a fraud upon the court could constitute a sufficient basis for a claim for relief from that judgment. See Helgenberger v. Ramp & Mida Law Firm, 22 FSM R. 4, 12 (Pon. 2018). "Fraud upon the court is defined as the most egregious misconduct directed to the court itself, such as bribery of a judge or fabrication of evidence by counsel, which must be supported by clear, unequivocal and convincing evidence." Arthur v. Pohnpei, 16 FSM R. 581, 600 n.14 (Pon. 2009) (citing Ramp v. Ramp, 11 FSM R. 630, 636 (Pon. 2003)). As such, bias towards a party is not fraud upon the court, but bribery could be.
Fraud must be alleged with particularity, pursuant to Rule 9(b): "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally."
The Salomons merely allege an unspecified quid pro quo, without identifying the misrepresentation or omission that was made to the court. To allege the circumstances constituting fraud with the required particularity, a plaintiff must identify particular statements and actions and specify why they are fraudulent. Arthur, 16 FSM R. at 597. Conclusory allegations do not satisfy the requirements of Rule 9(b), and they subject the pleader to dismissal. Id. With regard to bribery of a judge, the allegations would need to specify what findings were false or omitted.
The Complaint against FSMDB Defendants fails to state a claim for fraud on the court.7
4. Sale of Property in Violation of Pohnpei Constitution
The Salomons seek to hold the FSMDB Defendants liable for causing Justice Wentworth to order sale of Nancy Salomons's land in violation of the Pohnpei State Constitution, Article 12, section 5, because "[t]here has not been any statute enacted by Pohnpei Legislature to date that authorizes the sale of Pohnpei lands."
FSMDB Defendants contend that the Salomons' only remedy for this purported wrong is to pursue the appellate remedy they began in appeal P3-2020 (consolidated). The issue of the land sale is still a part of that appeal (which, as consolidated, includes P13-2021, the appeal from the sale order). However, appeal P13-2021 is the subject of a motion to dismiss due to the dismissal of Ms. Salomon from the appeal. That motion to dismiss has not been ruled upon by the appellate panel in P3-2020 (consolidated).
Nevertheless, as the Complaint stands, the Salomons are asking the trial division to rule on an issue that is currently pending before the appellate division in P3-2020 (consolidated). This would run afoul of a principle articulated by the appellate division: "When an appeal is taken from the trial court it is divested of authority to take any action except actions in aid of the appeal. This is a judge-made rule to avoid the confusion and inefficiency of putting the same issue before two courts at the same time." Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM R. 520, 522 (App. 1996). The rationale for denying the trial division authority to rule on an issue on direct appeal from it would also apply here, where the issue is being raised in a separate action filed in the trial division.
Based on the foregoing, the FSMDB Defendants' motion to dismiss is granted in its entirety.
C. Justice Wentworth's Motion to Dismiss
1. Judicial Immunity
The Salomons seek to hold Justice Wentworth civilly liable for issuing orders enforcing a judgment while presiding over Civil Action No. 2014-021 (consol.). Justice Wentworth contends that he has absolute judicial immunity for those orders. I find that he has absolute immunity for the matters complained of in the Complaint, and that this matter must be dismissed as to him.
A judge is generally granted absolute immunity from civil liability for acts done in the exercise of a judicial function. Jano v. King, 5 FSM R. 388, 391 (Pon. 1992). A judge loses the cloak of judicial immunity in only two instances. A judge is not immune for actions not taken in the judge's judicial capacity, and a judge is not immune for actions, though judicial in nature, taken in complete absence of all jurisdiction. Id.
a. Judicial Acts
"[T]he factors determining whether an act by a judge is a 'judicial' one relate to the nature of act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." Bank of the FSM v. O'Sonis, 9 FSM R. 106, 112 (1999).
The actions at issue in the Complaint, the "illegal orders," were an order of foreclosure of a mortgage's promissory note, an order of sale of land owned by plaintiff Nancy Salomon, and a writ of execution over funds belonging to the Salomons' former lawyer. All of these orders are in enforcement of the judgment, clearly a judicial act, assigned to the FSM Supreme Court trial division justices. See, e.g.,
Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the court is held, existing at the time the remedy is sought, except that any statute of the Federated States of Micronesia governs to the extent that it is applicable. In aid of the judgment or execution, the judgment creditor or a successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules or in the manner provided by the practice of the state in which the court is held.
See also 6 F.S.M.C. §§ 1401-1415.
b. Complete Absence of All Jurisdiction
Complete absence of all jurisdiction is more than in excess of jurisdiction or even grossly in excess of jurisdiction. See, e.g., Ruben v. Petewon, 15 FSM R. 605, 608-09 (Chk. 2008) (Chuuk state judge clearly acted grossly in excess of his jurisdiction, not in complete absence of all jurisdiction, by issuing orders in a case dismissed with prejudice by the other judge to which it was assigned). Complete absence of all jurisdiction is less likely found when the court is a court of general jurisdiction, such as the FSM Supreme Court. Jacob v. Johnny, 18 FSM R. 226, 232 (Pon. 2012). An act is not in complete absence of all jurisdiction even if flawed by the commission of grave procedural errors, id. at 233, or if done maliciously or corruptly. O'Sonis, 9 FSM R. at 112.
As noted above, The Salomons' allegation that Justice Wentworth "lost all jurisdiction" when the Salomons took an appeal or when they requested a stay without offering any security for the money judgment is an erroneous legal conclusion—an appeal does not divest the trial division from jurisdiction to issue orders enforcing a money judgment, but such enforcement may be stayed on an appeal by the giving of a supersedeas bond or other adequate security approved by the court. Panuelo v. Amayo, 10 FSM R. at 564; FSM Civ. R. 62(d). With no stay in place, there is no basis in the Complaint for inferring that Justice Wentworth was exceeding his authority when he issued the orders. But, even if he had issued the orders while a stay of enforcement was in place, or had ordered sale of the land in violation of the Pohnpei State Constitution, that would be at most conduct that is on par with the facts of Ruben v. Petewon, 15 FSM R. 605 (Chk. 2008), i.e., conduct grossly in excess of jurisdiction, not in complete absence of jurisdiction.
D. Other Motions
1. The Salomons' motions.
Motion to Disqualify Attorney Nora Sigrah (and Strike Motion to Dismiss).
A government lawyer cannot represent the government when representation of that client may be materially limited by the lawyer's own interests. FSM v. Wainit, 12 FSM R. 376, 380 (Chk. 2004). However, this Court will proceed cautiously in addressing disqualification requests brought in an adversarial context:
Courts must view with caution any motion to disqualify opposing counsel because such motions can be misused as a harassment technique. McVey v. Etscheit, 14 FSM Intrm. 207, 210 (Pon. 2006). Resolving conflict-of-interest questions is primarily the responsibility of the lawyer undertaking the representation. Nix v. Etscheit, 10 FSM Intrm. 391, 396 (Pon. 2001). But a court may, in civil litigation, raise the question when there is reason to infer that the lawyer has neglected the responsibility. Id.
Marsolo v. Esa, 17 FSM R. 480, 484 (Chk. 2011).
The Salomons fail to demonstrate that Ms. Sigrah's representation of herself material limits her representation of FSMDB. Absent any such obvious, I presume the interests of Ms. Sigrah and her client appear to be aligned. Therefore, the motion is denied. The motion to strike is also denied for that reason and based on Rule 12(f). Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 450 (Pon. 2018) (A party cannot move under Rule 12(f) to strike a motion to dismiss or other Rule 12(b) motion, or any motion.).
Motion to Disqualify Justice Wentworth.
The motion is moot because it is assigned to the undersigned, not to Justice Wentworth. Therefore, the motion is denied.
Motion to Strike Associate Justice Wentworth's Reply.
The Salomons rely on Rule 7 for striking the reply in support of a motion. However, Rule 7 applies to pleadings, not motions. The FSM Supreme Court has previously stated that it "may consider replies to the extent that they address the response, and not to the extent that the reply may raise issues extraneous to the original motion or the response." Island Dev. Co. v. Yap, 9 FSM R. 279, 282 (Yap 1999). With the foregoing injunction, this Court denies the Salomons' motion.
2. FSMDB Defendants' Other Motions
Motion to Strike Portions of Complaint.
FSMDB Defendants move to strike allegations in the Complaint in paragraph 12 and in footnotes 1 and 2 that assert (1) favoritism and a potential quid pro quo between Justice Wentworth and FSMDB counsel and (2) intimate or sexual affairs between counsel and third parties. The basis for striking the allegations is that they are immaterial or scandalous.
Rule 12(f) reads as follows:
Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
"Rule 12(f) 'immaterial' matter consists of statements and averments bearing no essential or important relationship to the claim for relief or the defenses being pled." Cobell v. Norton, 224 F.R.D. 1, 3 (D.D.C. 2004). No basis is alleged to support that the alleged sexual affairs between FSMDB counsel and third persons, strangers to his matter, bear any relationship to the claim for relief or the defenses being pled.
A statement is scandalous if it "unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court." 2 MOORE'S FEDERAL PRACTICE § 12.37[3], at 12–97 (3d ed. 2002). The allegations of sexual or intimate affairs between counsel and third parties, even if believed, can have no purpose or effect other than to unnecessarily reflect on the moral character of those persons.
Thus, the allegations of sexual or intimate affairs may be (and are hereby) stricken as immaterial and scandalous. On the other hand, I do not find that allegations of favoritism or quid pro quo may be excluded. Those statements may be properly address under Rule 12(b)(6) but are not subject to Rule 12(f). FSM v. Kana Maru No. 1, 14 FSM R. 368, 374 (Chk. 2006). (Rule 12(f) motions to strike may be used to strike from any pleading any insufficient defense, but they cannot be used to "strike" legally insufficient claims, for which Rule 12(b)(6) is the appropriate vehicle.). The motion to strike is therefore granted in part and denied in part. Footnote 2 of the Complaint is hereby stricken.
Rule 11 Sanctions.
Rule 11 of the FSM Rules of Civil Procedure reads in pertinent part as follows:
The signature of an attorney . . . constitutes a certificate by the signer that the signer has read the pleading, motion or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fees.
The gist of the Salomons' complaint is that Ms. Sigrah requested orders from the Court that were illegal, either because they were in violation of a stay, because the court lacked jurisdiction, or, in the case of an order or orders concerning lot no. 068-D-06, were forbidden by the Pohnpei Constitution. I rule on the Salomons' motion for Rule 11 sanctions as follows
. The Salomon's contention that Justice Wentworth lost jurisdiction to enforce the money judgment when the appeal was filed is frivolous.
Authority of the trial division to enforce a money judgment after an appeal is filed, when there is no stay order (which may only be issued upon provision of adequate security), is controlling law in the FSM. Setik v. FSM Dev. Bank, 21 FSM R. at 518. The Salomons' assertion that Justice Wentworth, at the instigation of FSMDB employee Sigrah, violated their rights by issuing orders enforcing the money judgment after the appeal is thus "not warranted by existing law" as "it is based on legal theories that are plainly foreclosed by well-established legal principles and authoritative precedent." Ehsa v. FSM Dev. Bank, 19 FSM R. 367, 371 (Pon. 2014). As their counsel has not plainly stated that he "is arguing for a reversal or change of law and present[ed] a nonfrivolous argument in support of that position," sanctions are warranted. Id.
. The Salomons' allegations of sexual and intimate affairs concerning Attorney Sigrah and baseless suit against her were interposed for improper purposes.
As stated above in this Court's ruling on FSMDB Defendants motion to strike, the allegations of sexual and intimate conduct were both frivolous and immaterial to any of the Salomons' claims in this lawsuit. The fact that the Salomons' made no bona fide effort to justify the allegations in their April 2, 2024 response to FSMDB Defendants' motions for sanctions only underscores that the allegations were made for an improper purpose, i.e., to harass Ms. Sigrah.
Additional evidence of the intent to harass exists in the insufficient allegations against her in her individual capacity, in which the Salomons contend that there was a "potential improper quid pro quo" and a "sisterhood-brotherhood" between Ms. Sigrah and Justice Wentworth. Compl. para. 12 & n.1. Although these allegations suggest either bribery or improper favoritism, they are based on the Salomons' and their prior counsel's impressions of the Associate Justice's courtroom, not on articulable facts. Id. Reliance on insufficient allegations, while it may not by itself prove that the pleading was sanctionable because it was not well grounded in fact, may support a conclusion that the filing of the pleading was interposed for improper purposes. Talley, 23 FSM R. at 331.
. This Court lacks jurisdiction over the issue of whether the sale of lot no. 068-D-06 violated the Pohnpei Constitution.
As stated above, because there is a pending appeal of Justice Wentworth's trial division order concerning the sale of lot no. 08-06, this Court, which can at most only act in the same capacity as Justice Wentworth, lacks jurisdiction to rule on whether that order violated the Salomons' rights. Senda, 7 FSM R. at 522. This Court therefore declines to rule on whether the Salomons' mere assertion of jurisdiction by filing the Complaint is sanctionable. However, even if it were to be sanctionable, that fact would not prevent this Court from finding that the Salomons' bringing of this action was subject to sanctions on other grounds. In re Sanction of Berman, 7 FSM R. 654, 657 (App. 1996) (A litigant pleading non-frivolous along with frivolous claims cannot expect to avoid all sanctions under Rule 11 merely because the pleading or motion under scrutiny was not entirely frivolous.)
. Sanctions are ordered against counsel and client.
FSMDB's request leaves it open to the Court to determine whether to sanction the attorney or client (or both). By whom sanctions should be borne depends on the respective roles of lawyer and client in the offending conduct: Under Rule 11,
[t]he court's discretion includes the power to impose sanctions on the client alone, solely on counsel, or on both. This is desirable because there are circumstances in which one of these actions is more appropriate than the other two. For example, when the offending conduct relates to work that lies within the counsel's supposed competence, especially when it is beyond the client's understanding, it is the former who should be sanctioned, not the latter.
Amayo v. MJ Co., 14 FSM R. 355, 362 (Pon. 2006) (quoting 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1336, at 102-04 (2d ed.) (1990)).
I find that the areas in which Rule 11 has been violated in this matter make it appropriate for the sanctions to be jointly and severally borne by attorney and client. The violations involve both the means and objectives of the representation, for which attorney and client both bear responsibility and authority. FSM MRPC R. 1.2, cmt. on Scope of Representation. The allegations in support of the sanctionable filings were based on input from both counsel and client.
The Court therefore imposes Rule 11 sanctions on the Salomons and their attorney, jointly and severally, ordering them to pay FSMDB Defendants' costs and reasonable attorney's fees in bringing the motion to dismiss. FSMDB Defendants shall submit their detailed statements of costs and reasonable attorney's fees by June 7, 2024. The Salomons will have ten days to respond.
This Complaint against the FSMDB Defendants and Justice Wentworth is dismissed. FSMDB Defendants' motion for Rule 11 sanctions is granted, with fees to be awarded after the parties submit their briefs, and the remaining motions ruled upon as set forth above.
_______________________________Footnotes:
1 This Court sua sponte orders correction of the caption to reflect the correct spelling of Justice Wentworth's last name. A caption can always be amended to correct technical defects. Moses v. M.V. Sea Chase, 10 FSM R. 45, 51 (Chk. 2001).
2 Unless otherwise specified, reference to a Rule or Rules anywhere in this order is to a rule or rules of the FSM Rules of Civil Procedure.
3 FSMDB Defendants cite Setik v. Perman, 22 FSM R. 105, 117 (App 2018) for the proposition that matters of public record may be taken into account in a Rule 12(b)(6) motion. The "matters of public record" in Setik v. Perman were, as here, the court's own files in related cases, of which the trial division had taken judicial notice in issuing a motion to dismiss. Id. However, the Court also stated that "[s]ince the trial court considered matter outside the pleadings (the FSM Supreme Court decisions in other cases) and did not exclude that matter, the trial court should have considered the Rule 12(b)(6) motion to dismiss to have been converted to a Rule 56 motion for summary judgment." Setik, 22 FSM R. at 117 n.11.
4 FSMDB Defendants in their reply to the Salomons' motion to strike that their reason for failing to include the required certification was futility, that no agreement would ever be forthcoming because it would result in outright dismissal of their dismissal with prejudice. This assumes that the only point of discussion between the movant and the nonmovant to be whether the nonmovant would completely agree or acquiesce in the motion. As noted in, the purpose of the certification requirement is to initiate dialog and promote compromise, which will can reduce this Court's workload. That may be achieved by agreements narrowing the scope of the motion.
5 While both FSMDB Defendants were named as defendants, the suit as against Defendant Nora Sigrah was subsequently dismissed for failure to serve, pursuant to Rule 4(j).
6 FSMDB Defendants and Associate Justice Wentworth request that this Court take judicial notice of pleadings in related matters in support of their motions to dismiss. Indeed, those pleadings have bearing on this matter. For example, on Appeal No. P3-2020, the appellate division noted that one of the reasons the trial division in this matter denied the Salomons' motion for a stay was their failure to provide security. Salomon v. Mendiola, Order Denying Motion to Stay at 3-4 (June 2, 2021) (Ex. "G" to FSMDB Defs.' Mot. to Dismiss (Feb. 9, 2024)). However, to consider these records, this Court would need to convert the motions to motions for summary judgment:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
FSM Civ. R. 12(b); see Perman, 22 FSM R. at 117 n.11. As I find that the Complaint facially deficient, I decline to consider matters outside the pleadings in this case.
7 Even were the Complaint to state a claim for fraud on the court, the Salomons' relief would likely be limited to relief from the judgment. See, e.g., Atkins v. Heavy Petroleum Partners, LLC, 2014 WL 4657105, at *11-12 (D. Kan. 2014) (under U.S. Federal rule, only relief from judgment may be had, no damages or injunctive relief).
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