[24 FSM R. 552]

CIVIL ACTION NO. 2023-014

Hearing: May 13, 2024
Decided: August 1, 2024

APPEARANCES:

For the Plaintiff:           Joseph S. Phillip, Esq.
                                    P.O. Box 464
                                    Kolonia, Pohnpei FM 96941

For the Defendant:      Tyson Elias, Esq.
                                    Assistant Attorneys General
                                    Pohnpei Department of Justice
                                    P.O. Box 1555
                                    Kolonia, Pohnpei FM 96941

HEADNOTES

Jurisdiction – Diversity

Diversity jurisdiction is present in disputes between a state and a citizen of another state, between citizens of different states, between a state and a foreigner, or between an FSM citizen and a foreigner, but not when the parties are all from the same state. This jurisdiction is based upon the parties' citizenship, not the subject matter of their dispute. Gilmete v. Pohnpei State Hosp., 24 FSM R. 552, 553 & n.1 (Pon. 2024).

Jurisdiction – Arising Under

When diversity of citizenship is not present, the FSM Supreme Court may exercise jurisdiction when an issue arises from a constitutional question, international treaty, or FSM national law. Gilmete v. Pohnpei State Hosp., 24 FSM R. 552, 554 & n.2 (Pon. 2024).

Torts – Negligence

A common law claim of negligence for the alleged failure to properly care for the body of their deceased relative does not arise from a national law, but involves the common-law right of sepulcher, which gives the next of kin the right to the possession of a decedent's body for preservation and burial. Gilmete v. Pohnpei State Hosp., 24 FSM R. 552, 554 & n.3 (Pon. 2024).

Administrative Law – Rules and Regulations; Jurisdiction – Arising Under

While 41 F.S.M.C. 102(f) permits the Department of Health to create national regulations over interments and dead bodies, no actual regulation has ever been created, so there is no national regulation to enforce. The power to create regulations is not the same as having exercised that power. Gilmete v. Pohnpei State Hosp., 24 FSM R. 552, 554 (Pon. 2024).

Constitutional Law – Professional Services Clause; Jurisdiction – Arising Under

A claim does not arise under the FSM Constitution's professional services clause when the plaintiff raises no cause of action against the national government, when the national government is not being accused of failing to take reasonable and necessary action to provide health care services, and when the national government is not a party. Gilmete v. Pohnpei State Hosp., 24 FSM R. 552, 554 (Pon. 2024).

Civil Procedure – Dismissal – Lack of Jurisdiction; Jurisdiction – Subject-Matter

When the case is a common law claim alleging negligence by the state hospital and is governed by state laws, the FSM Supreme Court will dismiss the case without prejudice, for lack of subject-matter jurisdiction. Gilmete v. Pohnpei State Hosp., 24 FSM R. 552, 554 (Pon. 2024).

COURT'S OPINION

BEAULEEN CARL-WORSWICK, Associate Justice:

On May 13, 2024, this court held a pretrial hearing on the issue of subject matter jurisdiction, Associate Justice Carl-Worswick presiding. Plaintiff was represented by attorney Joseph Phillip ("Phillip"). Defendant was represented by Assistant Attorney General Tyson Elias ("Elias"). After hearing oral arguments from both parties, the court took the matter under consideration. For the reasons that follow, the court finds a lack of subject matter jurisdiction over this cause of action as pled. FSM Constitution, Article XI, § 6(b) states,

The national courts, including the trial division of the Supreme Court, have concurrent original jurisdiction in cases arising under this Constitution; national law or treaties; and in disputes between a state and a citizen of another state, between citizens of different states, and between a state or a citizen thereof, and a foreign state, citizen, or subject.

(emphasis added). Diversity jurisdiction is present in disputes between a state and a citizen of another state, between citizens of different states, between a state and a foreigner, or between an FSM citizen and a foreigner. In short, there must be diversity among the parties; they cannot be from the same state.¹ Here both parties are from the same state, Pohnpei. Alternatively, the issue must arise from a constitutional question, international treaty, or FSM national law.²

Plaintiff has raised the common law claim of negligence for the alleged failure to properly care for the body of their deceased relative interred at the Pohnpei State Hospital mortuary.³ Thus, the issue does not arise from a national law in this case.⁴ The plaintiff's reliance on 41 F.S.M.C. 102(1) (f), which permits the creation of national regulations by the Department of Health over "interments and dead bodies" is in error. No actual regulation was submitted to the court. The court can find no evidence that a regulation has ever been created. The power to create regulations is not the same as having exercised that power. In short, there simply is no national regulation to enforce.

Nor does the claim substantially arise from a constitutional provision or treaty. The FSM Constitution, article XIII, § 1, professional services clause states, "The national government of the Federated States of Micronesia recognizes the right of the people to education, health care, and legal services and shall take every step reasonable and necessary to provide these services." (emphasis added). Plaintiff raises no cause of action against the national government, nor has the national government being accused of failing to take reasonable and necessary action to provide health care services. In fact, the national government is not a party to this case.

Fundamentally, the court finds this common law claim arises from the alleged negligence of the Pohnpei State Hospital, governed by Pohnpei State laws. To the limited extent that a constitution issue, or national law, may be peripherally involved, the Pohnpei Supreme Court is capable of addressing it.

ACCORDINGLY, upon consideration of the arguments presented and of the file and record contained herein, this case is DISMISSED without prejudice, for lack of subject matter jurisdiction. Plaintiff may nevertheless seek relief in the Pohnpei Supreme Court which is the proper forum for a common law cause of action.

Footnotes:

¹ "This court's jurisdiction is prescribed by Section 6 of the Judiciary Article of the Constitution of the Federated States of Micronesia. The court is specifically given jurisdiction over disputes between citizens of a state and foreign citizens. FSM Const. art. XI, § 6(b). This jurisdiction is based upon the citizenship of the parties, not the subject matter of their dispute." In re Nahnsen, 1 FSM R. 97, 101 (Pon. 1982). Similarly, "[w]hen all of the parties are citizens of foreign states there is no diversity of citizenship subject matter jurisdiction under art. XI, § 6(b)." International Trading Co. v. Hitec Corp., 4 FSM R. 1, 2 (Truk 1989).

² "The cases cited in Section 6(b) are of two general types, those involving issues under the Constitution or a national law or treaty, and those involving parties where citizenship or state status is the determining factor." Gilmete v. Carlos Etscheit Soap Co., 13 FSM R. 145, 148 (App. 2005). "The claims asserted by plaintiffs here arise under national law as well as under the Constitution of the Federated States of Micronesia and therefore fall within the jurisdiction of this Court." Hadley v. Kolonia Town Municipality, 3 FSM R. 101, 103 (Pon. 1987).

³ "The principle is well established that the common-law right of sepulcher gives the next of kin the absolute right to the immediate possession of a decedent's body for preservation and burial, and that damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent's body." Almeyda v. Concourse Rehab. & Nursing Ctr., Inc., 150 N.Y.S.3d 67, 69 (N.Y. App. Div. 2021) (emphasis added). "The right of sepulcher thus protects the legal right of the next of kin to 'find solace and comfort in the ritual of burial.'" Id. (citation omitted).

⁴ See Pohnpei v. AHPW, Inc., 14 FSM R. 1, 16 (App. 2006) ("Tort law, especially common law torts like negligence, is primarily a state responsibility").