FSM SUPREME COURT TRIAL DIVISION
Cite as Jim–Route v. Wentworth, 24 FSM R. 618 (Pon. 2024)
MARLYN JIM–ROUTE, Administratrix for the Estate
of Kammy Jim,
Plaintiff,
vs.
LARRY WENTWORTH, individually and as Associate
Justice of the FSM Supreme Court, and FSM
SUPREME COURT, and FSM GOVERNMENT,
Federated States of Micronesia,
Defendants.
CIVIL ACTION NO. 2024–012
ORDER GRANTING MOTION TO DISMISS IN PART; ORDER GRANTING PERMISSION TO AMEND
Chang B. William
Associate Justice
Decided: November 28, 2024
APPEARANCES:
For the Plaintiff:
Joseph S. Phillip, Esq.
P.O. Box 464
Kolonia, Pohnpei FM 96941
For the Defendant:
Joshua Walsh, Esq.
(Wentworth)
Razzano Walsh & Torres, P.C.
139 Murray Blvd., Suite 100
Hagatna, Guam 96910
For the Defendant:
Richard L. Johnson, Esq.
(FSM Supreme Court)
Blair Sterling Johnson Martinez & Leon Guerrero
1411 Pale San Vitores Road, Suite 303
Tumon, Guam 96913
For the Defendant:
Josef Rold, Esq.
(FSM)
Assistant Attorney General
FSM Department of Justice
P.O. Box PS–105
Palikir, Pohnpei FM 96941
* * * *
A motion to dismiss may not be granted unless it appears to a certainty that no relief could be granted under any state of facts which could be proved in support of the claim. Jim–Route v. Wentworth, 24 FSM R. 618, 624 (Pon. 2024).
The facts alleged by the party asserting the claim sought to be dismissed are to be taken as true and these facts and the inferences to be drawn therefrom must be viewed by the court in the light most favorable to the party opposing the motion to dismiss. Jim–Route v. Wentworth, 24 FSM R. 618, 624–25 (Pon. 2024).
On a Rule 12(b)(6) motion, the well–pled facts are accepted as true, with all inferences to be made in favor of the party opposing the motion. Jim–Route v. Wentworth, 24 FSM R. 618, 625 n.5 (Pon. 2024).
The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim of relief. The motion is not a procedure for resolving the contest between the parties about the facts or the substantive merits of the plaintiff's case. Jim–Route v. Wentworth, 24 FSM R. 618, 625 (Pon. 2024).
During the review of a Rule 12(b)(6) motion, the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. The pleading must at least allege sufficient facts for the court to determine whether some recognized legal theory exists on which relief can be awarded to the pleader. Jim–Route v. Wentworth, 24 FSM R. 618, 625 n.6 (Pon. 2024).
When considering a Rule 12(b)(6) motion, the court may consider only the facts alleged in the
pleadings, documents attached as exhibits or incorporated by reference in the pleadings, and matter of which the judge may take judicial notice. Since a court must take judicial notice if requested by a party and supplied with the necessary information, the court may take judicial notice of a death certificate, a document which is a public record, not disputed, and central to the pleadings. Jim–Route v. Wentworth, 24 FSM R. 618, 625 n.7 (Pon. 2024).
In actions for injury to or for the death of one caused by the wrongful act or neglect of another, the trial court may award such damages, not exceeding $100,000, as it may think proportioned to the pecuniary injury resulting from such death. Jim–Route v. Wentworth, 24 FSM R. 618, 626 (Pon. 2024).
An action for wrongful death must be started within two years after the death of such person, but if the person entitled to a cause of action is a minor or is insane or is imprisoned when the cause of action first accrues, the action may be commenced within the limitation time after the disability is removed. The two–year wrongful death period is subject to the tolling provisions of 6 F.S.M.C. 806. Jim–Route v. Wentworth, 24 FSM R. 618, 626 (Pon. 2024).
There is interplay between the wrongful death provisions and the general statutory limitation provisions. Specifically, the two–year period proclaimed in 6 F.S.M.C. 503(2) is subject to the tolling provisions of 6 F.S.M.C. 806. When 6 F.S.M.C. 806 applies, the period of limitations is to be determined by reference to it and to 6 F.S.M.C. 803(4). Jim–Route v. Wentworth, 24 FSM R. 618, 626 (Pon. 2024).
After a person turns eighteen, they have two years to file a wrongful death action, as the action was tolled while they were under the age of majority, which is eighteen. Jim–Route v. Wentworth, 24 FSM R. 618, 626 & n.9 (Pon. 2024).
If anyone, who is liable to any action, fraudulently conceals the cause of action from the knowledge of the person entitled to bring it, the action may be commenced at any time within the statutory limitation times after the person who is entitled to bring it discovers or should have had reasonable opportunity to discover that he has such cause of action, and not afterwards. Jim–Route v. Wentworth, 24 FSM R. 618, 627 (Pon. 2024).
Fraudulent concealment tolls limitations because a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until the limitation period has run. Under the fraudulent concealment doctrine, a defendant's fraud in concealing a cause of action against him tolls the applicable statute of limitations, but only for that period during which the claim is undiscovered by plaintiff or until such time as plaintiff, by the exercise of reasonable diligence, should have discovered it. Like the discovery rule, the fraudulent concealment rule is an equitable principle designed to effect substantial justice between the parties; its rationale is that the culpable defendant should be estopped from profiting by his own wrong to the extent that it hindered an otherwise diligent plaintiff in discovering his cause of action. Jim–Route v. Wentworth, 24 FSM R. 618, 627 n.10 (Pon. 2024).
The general rule as to the statute of limitations on fraud actions is that the running of the statute will be suspended until the cause of action is known or should under the circumstances have been discovered. Thus, the statute runs only from the time of actual discovery of the fraud, or when reasonable diligence ought to have led to the discovery of the fraud. Jim–Route v. Wentworth, 24 FSM R. 618, 627 (Pon. 2024).
A cause of action accrues when the right to bring suit on a claim is complete – the true test to determine when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion. Jim–Route v. Wentworth, 24 FSM R. 618, 627 n.11, 630 (Pon. 2024).
In order for the fraudulent concealment rule to be invoked, fraud must, of course, be the gravamen of the action. It is the general rule that in an action for deceit, or other suit in which the cause of action is based directly on fraud, the fraud must be pleaded, and in all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. Jim–Route v. Wentworth, 24 FSM R. 618, 627 (Pon. 2024).
Fraud in the abstract, is largely a conclusion of law, and general allegations which do not set forth the particular circumstances are not sufficient. General allegations of concealment are of no more value in pleading than those of fraud, and of no greater value in a reply. Jim–Route v. Wentworth, 24 FSM R. 618, 627 n.13 (Pon. 2024).
Particularity means the pleader must state the time, place, and content of the false misrepresentation, the fact misrepresented, and what was obtained as a consequence of the fraud. When alleging 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 subject the pleader to dismissal. Jim–Route v. Wentworth, 24 FSM R. 618, 627–28 (Pon. 2024).
On a Rule 12(b)(6) motion to dismiss, only the well–pled facts are to be accepted as true, and no matter how artfully the allegations may be crafted, the court does not assume the truth of legal conclusions merely because they are cast in the form of factual allegations. Conclusory allegations or legal allegations masquerading as factual conclusions will not suffice to prevent a motion to dismiss, and the court need not accept as true allegations that contradict facts which may be judicially noticed; for example, the court may consider matters of public record including pleadings, orders and other papers filed with the court, and the court does not have to credit invective, bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like. Jim–Route v. Wentworth, 24 FSM R. 618, 628 n.14 (Pon. 2024).
Under the fraudulent concealment doctrine the plaintiff has the burden of showing: 1) the defendant concealed the facts at issue; and 2) the plaintiff failed to discover the relevant facts despite the exercise of due diligence. An affirmative act of concealment requires more than mere silence; indeed, the defendant must perform some trick or contrivance tending to exclude suspicion and prevent discovery. The affirmative acts of concealment must be calculated to mislead and hinder a plaintiff from obtaining information by the use of ordinary diligence, or to prevent inquiry or elude investigation. Mere silence ordinarily is not sufficient concealment of fraud to prevent the running of the statute of limitations. Jim–Route v. Wentworth, 24 FSM R. 618, 628 (Pon. 2024).
The fraudulent concealment doctrine generally requires that the defendant has taken positive acts of fraud or concealment, and that these acts were intended to prevent and did prevent the plaintiff from discovering their cause of action. The concealment must be something beyond mere silence. Specifically,
the plaintiff must demonstrate that the fraud was not discovered sooner due to the defendant's actions, and despite the exercise of reasonable diligence. Jim–Route v. Wentworth, 24 FSM R. 618, 628 n.17 (Pon. 2024).
The particularity pleading requirement was not met when fraud was never pled, either by reference to statute or as the gravamen of the complaint; when the word fraud itself is not even used; when fraudulent concealment was first expressly raised in the opposition to the defendant's motion to dismiss and in response to the statute of limitations defense; when, even if the court inferred that fraud was raised in the complaint, the fraudulent act was not pled with particularity as required by Rule 9(b); and when, ultimately, the court need not accept as true allegations, especially implied allegations, that contradict other facts pled or which could be noticed, even in the light most favorable to the plaintiff. Jim–Route v. Wentworth, 24 FSM R. 618, 628–29 (Pon. 2024).
Rule 7(a) defines pleadings as the complaint, answer, reply to a counterclaim, answer to a cross–claim, third–party complaint, and third–party answer, and no other paper will be considered a pleading except those Rule 7(a) specifically names. A motion in any form cannot stand as a pleading. Jim–Route v. Wentworth, 24 FSM R. 618, 628 n.18 (Pon. 2024).
The court need not accept as true allegations, especially implied allegations, that contradict other facts pled, and which could be noticed. Jim–Route v. Wentworth, 24 FSM R. 618, 629 (Pon. 2024).
Fraud is a knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment. Jim–Route v. Wentworth, 24 FSM R. 618, 629 n.19 (Pon. 2024).
Particularity requires citing specific statements, intentional misrepresentations, or tricks such as forgery, calculated to conceal the cause of action. Silence is not enough. The plaintiff must point to affirmative acts of concealment. The court is not bound to accept conclusory allegations, or bald assertions, nor does the court credit invective language, and artful pleadings peppered with highly critical language and unsupported speculation are not enough to meet the particularity requirement. Jim–Route v. Wentworth, 24 FSM R. 618, 629 (Pon. 2024).
When the plaintiff shows no reason for the failure to investigate a cause of action that was complete over 32 years ago, the court need not determine what is a reasonable time in which due diligence would have required the discovery of the cause of action, even if the cause of action is tolled for eighteen years, until a minor child reached the age of majority, and further extended due to fraudulent concealment, the plaintiff still states no reason for the failure to bring a claim for over a decade later, since it simply was not pled. Jim–Route v. Wentworth, 24 FSM R. 618, 629 & n.21 (Pon. 2024).
After a person turns eighteen, they have six years to file a breach of promise action, as the action was tolled while they were under the age of majority. Jim–Route v. Wentworth, 24 FSM R. 618, 629 (Pon. 2024).
No FSM Supreme Court justice, clerk, officer, or employee shall practice law in the FSM. Jim–Route v. Wentworth, 24 FSM R. 618, 630 (Pon. 2024).
Under Canon 3 of the 1972 Model Code of Judicial Conduct, the Code applies indirectly to all court employees because it provides that a judge should require his staff and court officials subject to his direction and control to observe the standards of fidelity and diligence that apply to him. Jim–Route v. Wentworth, 24 FSM R. 618, 630 n.23 (Pon. 2024).
A judicial officer should regulate his extra–judicial activities to minimize the risk of conflict with his judicial duties. To this end, a judicial officer shall not practice law, but may engage in activities to improve the law, the legal system, and the administration of justice and may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice. Jim–Route v. Wentworth, 24 FSM R. 618, 630–31 (Pon. 2024).
A judicial officer may receive compensation and reimbursement of expenses for the quasi–judicial and extra–judicial activities permitted by the Code of Judicial Conduct, if the source of such payments does not give the appearance of influencing the judicial officer in his judicial duties or otherwise give the appearance of impropriety. Jim–Route v. Wentworth, 24 FSM R. 618, 631 (Pon. 2024).
In the light of the historical development of the lawyer's functions, it is impossible to lay down an exhaustive definition of "the practice of law" by attempting to enumerate every conceivable act performed by lawyers in the normal course of their work. Jim–Route v. Wentworth, 24 FSM R. 618, 631 (Pon. 2024).
The "practice of law" commonly emphasizes the application of specialized legal knowledge, judgement, and skill, particularly in situations that affect the legal rights of others. Outside of this scope, are theoretical abstractions, which include speaking, writing, lecturing, teaching, or tutoring others in matters concerning the law. Teaching law classes and tutoring others involves explaining and discussing legal principles, theories, and case laws, but does not involve the application of the law. Jim–Route v. Wentworth, 24 FSM R. 618, 631–32 (Pon. 2024).
Impeachment proceedings against FSM Supreme Court justices must be initiated by a resolution of Congress. Jim–Route v. Wentworth, 24 FSM R. 618, 632–33 (Pon. 2024).
Under the political question doctrine, when the Constitution contains a textually demonstrable commitment of an issue to a coordinate branch of government, it is a nonjusticiable political question not to be decided by a court because of the constitutionally mandated separation of powers, and an impeachment proceeding's procedure, including its timing, is thus a non–justiciable political question. Jim–Route v. Wentworth, 24 FSM R. 618, 633–34 (Pon. 2024).
Although a court should exercise its discretion liberally to allow amended pleadings, a motion to amend a complaint may be denied if it is futile. One reason a motion to amend a complaint would be futile is if the claims sought to be added are barred by the relevant statute of limitations. Jim–Route v. Wentworth, 24 FSM R. 618, 634 (Pon. 2024).
A failure to comply with many of the special pleading provisions in Rule 9 need not be remedied by a dismissal of the action or a striking of the pleading, but can be corrected through a motion for an amendment under Rule 15. Jim–Route v. Wentworth, 24 FSM R. 618, 634 (Pon. 2024).
A dismissal for failure to state a claim is an adjudication on the merits, and is therefore typically entered as a dismissal with prejudice. Jim–Route v. Wentworth, 24 FSM R. 618, 635 (Pon. 2024).
Dismissed with prejudice means removed from the court's docket in such a way that the plaintiff is foreclosed from filing a suit again on the same claim or claims. Jim–Route v. Wentworth, 24 FSM R. 618, 635 n.35 (Pon. 2024).
A court may dismiss a complaint sua sponte for failure to state a claim if the court gives the parties notice and an opportunity to amend or otherwise respond . Jim–Route v. Wentworth, 24 FSM R. 618, 635 (Pon. 2024).
* * * *
CHANG B. WILLIAM, Associate Justice:
On July 22, 2024, plaintiff Marlyn Jim–Route, through attorney Joseph Phillip (Phillip), filed a Complaint. In this complaint, plaintiff alleges a wrongful death action, breach of promise, and several ethical violations calling for the removal of Associate Justice Larry Wentworth from office including unauthorized practice of law, financial impropriety, and/or bribery. On August 30, 2024, defendant FSM Supreme Court, through attorney Richard Johnson (Johnson), filed a Motion to Dismiss.1 On September 20, 2024, defendant Larry Wentworth (Wentworth), through attorney Joshua Walsh (Walsh), joined the motion to dismiss.2 On September 16, 2024, plaintiff filed an Opposition to Defendants' Motion to Dismiss. On September 17, 2024, plaintiff filed a Supplement to the Opposition.3 On October 17, 2024, plaintiff filed what appears to be a second supplement to the opposition.4 Defendant FSM Government (Government), represented by assistant attorney general Josef Rold (Rold), has not filed a separate motion to dismiss or joined this motion.
Pursuant to FSM Civil Rule 12(b)(6), this court has the authority to dismiss a complaint for "failure to state a claim upon which relief can be granted." "A motion to dismiss may not be granted unless it appears to a certainty that no relief could be granted under any state of facts which could be proved in support of the claim." Nahnken of Nett v. United States, 7 FSM R. 581, 586 (App. 1996) (emphasis added) (citation omitted).
It is well established that the facts alleged by the party asserting the claim sought to be dismissed are to be taken as true and that these facts and the inferences to be drawn therefrom must be viewed by the Court in the light most favorable to the party opposing the
motion to dismiss.
Id. (emphasis added) (citation omitted).5 "The purpose of a motion under . . . Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim of relief; the motion is not a procedure for resolving the contest between the parties about the facts or the substantive merits of the plaintiff's case." 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1356, at 354 (3d ed. 2004) (emphasis added).6
In the complaint, plaintiff alleges the following facts, not disputed by the defendant, and which the Court accepts as true for the purposes of this motion:
1) Kammy Jim died on September 3, 1992, as a result of a car accident7
2) The accident occurred in Nankowi, Sokehs, Pohnpei State
3) Kammy Jim was an employee of the FSM Supreme Court
4) Larry Wentworth was an employee of the FSM Supreme Court
5) The car was owned by the FSM Supreme Court
6) The accident occurred while carrying out an errand for the FSM Supreme Court
7) Larry Wentworth was operating the automobile
8) Chief Justice King of the FSM Supreme Court carried out a traditional apology
9) At the time of the accident, Kammy Jim had a baby boy less than one year old
In the motion to dismiss, defendant raises an affirmative defense based on the statute of limitations. In the opposition to the motion to dismiss, plaintiff responds that an extension of time is appropriate due to fraudulent concealment.
Pursuant to 6 F.S.M.C. 803(4), the statute of limitation for wrongful death, states in relevant part, "actions for injury to or for the death of one caused by the wrongful act or neglect of another, except as otherwise provided in chapter 5 of this title." (emphasis added). Pursuant to 6 F.S.M.C. 503(1), the
Limitation Period, states in relevant part,
The trial court may award such damages, not exceeding the sum of $100,000,8 as it may think proportioned to the pecuniary injury resulting from such death, to the persons, respectively, for whose benefit the action was brought; provided, however, that where the decedent was a child, and where the plaintiff in the suit brought under this chapter is the parent of such child, or one who stands in the place of a parent pursuant to customary law, such damages shall include his mental pain and suffering for the loss of such child, without regard to provable pecuniary damages.
(emphasis added). Pursuant to 6 F.S.M.C. 503(2), "Except as otherwise provided, every such action shall be commenced within two years after the death of such person." (emphasis added). Pursuant to 6 F.S.M.C. 806, tolling for disability, states in relevant part, "If the person entitled to a cause of action is a minor or is insane or is imprisoned when the cause of action first accrues, the action may be commenced within the times limited in this chapter after the disability is removed." (emphasis added). "The two–year period proclaimed in 6 F.S.M.C. 503(2) is subject to the tolling provisions of 6 F.S.M.C. 806. Accordingly, the statute of limitations has not run against the minor children in this case." Sarapio v. Maeda Road Constr. Co., 3 FSM R. 463, 464, (Pon. 1988) (holding that the statute of limitations had not run against minor child's wrongful death claim filed seven years after decedent's death). "There is interplay between the wrongful death provisions and the general statutory limitation provisions. Specifically, the two–year period proclaimed in 6 F.S.M.C. 503(2) is subject to the tolling provisions of 6 F.S.M.C. 806. When 6 F.S.M.C. 806 applies, the period of limitations is to be determined by reference to it and to 6 F.S.M.C. 803(4)." Luda v. Maeda Road Constr. Co., Ltd., 2 FSM R. 107, 115 (Pon. 1985) (holding that the statute of limitations had not run against minor child's wrongful death claim filed three years after decedent's death). Thus, the "FSM tolling statute, 6 F.S.M.C. 806 . . . applies to [all] persons 'entitled to a cause of action.'" Id. at 13. "'If the person entitled to a cause of action is a minor . . . when the cause of action first occurs, the action may be commenced within the times limited in this chapter after the disability is removed.'" Id. at n.2.
The court finds that in the normal course of events, after a person turns eighteen, they have two years to file a wrongful death action, as the action is tolled while they are under the age of majority.9 In this case, with tolling the "disability" of being a minor child was removed around 2010, when the minor child turned eighteen. As a result, the statute of limitations began to run on September 3, 2010, and the cause of action expired on September 3, 2012. Thus, the cause of action is over a decade late.
The plaintiff does not contend, nor deny, these facts of which the court has taken judicial notice. Instead, plaintiff raises the argument that fraudulent concealment forms an additional basis for tolling.
Pursuant to 6 F.S.M.C. 809, Extension of Time by Fraudulent Concealment states in full,
If any person who is liable to any action shall fraudulently conceal the cause of action from the knowledge of the person entitled to bring it, the action may be commenced at any time within the times limited within this chapter after the person who is entitled to bring the same shall discover or shall have had reasonable opportunity to discover that he has such cause of action, and not afterwards.
(emphasis added).10 "The general rule as to the statute of limitations on fraud actions is that the running of the statute will 'be suspended until the cause of action is known or should under the circumstances have been discovered.'" Mid–Pac Constr. Co. v. Semes (I), 6 FSM R. 171, 177 (Pon. 1993) (emphasis added) (citation omitted).11 "In other words, the statute runs only from the time of actual discovery of the fraud, or when reasonable diligence ought to have led to the discovery of the fraud." Id. (emphasis added) (citation omitted). This is known as the concealment rule, or the fraudulent concealment rule.12
"In order for the rule to be invoked, fraud must, of course, be the gravamen of the action." 37 AM. JUR 2d Fraud and Deceit § 405, at 551 (1968) (emphasis added). "It is the general rule that in an action for deceit, or other suit in which the cause of action is based directly on fraud, the fraud must be pleaded." Id. § 423, at 573 (emphasis added).13 "The Federal Civil Rules of Procedure provide that in all averments of fraud the circumstances constituting the fraud shall be stated with particularity." Id. § 424 at 577. Pursuant to FSM Civil Rule 9(b), pleading fraud, which states in full, "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." (emphasis added). Particularity means, "the pleader must state the time, place, and content of the false misrepresentation, the fact misrepresented and what was obtained as a consequence of the fraud." Pacific Agri–Products, Inc. v. Kolonia Consumer Coop.
Ass'n, 7 FSM R. 291, 293 (Pon. 1995) (emphasis added). "When alleging the circumstances constituting fraud with the required particularity, a plaintiff must identify particular statements and actions and specify why they are fraudulent." Arthur v. Pohnpei, 16 FSM R. 581, 597 (Pon. 2009) (emphasis added) (citation omitted) (quotations omitted). "Conclusory allegations do not satisfy the requirements of Rule 9(b) and subject the pleader to dismissal." Id.14
"Under federal fraudulent concealment doctrine the plaintiff has the burden of showing: (1) 'the defendant concealed the facts at issue;' and (2) 'the plaintiff failed to discover the relevant facts despite the exercise of due diligence.'" Labaty v. UWT, Inc., 121 F. Supp. 3d 721, 749 (W.D. Tex. 2015) (emphasis added) (citations omitted).15 "An affirmative act of concealment requires more than mere silence; indeed, the defendant must perform some 'trick or contrivance tending to exclude suspicion and prevent [discovery]." Id.16 "The affirmative acts of concealment must be calculated to mislead and hinder a plaintiff from obtaining information by the use of ordinary diligence, or to prevent inquiry or elude investigation." Ludwig v. Ford Motor Co., 510 N.E.2d 691, 697 (Ind. Ct. App. 1987).17 "Mere silence ordinarily is not sufficient concealment of fraud to prevent the running of the statute of limitations." 37 AM. JUR. 2D Fraud and Deceit § 407, at 553 (1968) (emphasis added).
In plaintiff's complaint, fraud was never pled, not by reference to statute, nor is it the gravamen of the complaint. In fact, the word fraud itself is not even used. Fraudulent concealment is first expressly raised in the opposition to the defendant's motion to dismiss and in response to the statute of limitations defense.18 Even if the court infers that fraud was raised in the complaint, the fraudulent act has not been pled with particularity as required by FSM Civil Rule 9(b). In the pleadings, the death of Kammy Jim was made known to the defendants by the court itself and a traditional apology through Chief Justice King was performed. The nature of an apology itself is an admission, which at a minimum includes some level of involvement and potential culpability on the part of the court. The absence of then Staff Attorney Wentworth
from this apology is not sufficient to demonstrate that the cause of action was concealed, or that the plaintiff was somehow misled by this act. Ultimately, the court need not accept as true allegations, especially implied allegations, that contradict other facts pled, and which could be noticed. Thus, even in the light most favorable to the plaintiff, the particularity requirement was not met.19
Moreover, particularity requires citing specific statements, intentional misrepresentations, or tricks such as forgery, calculated to conceal the cause of action. Silence is not enough. The plaintiff must point to affirmative acts of concealment. The complaint alleges that the family was not informed: 1) that Kammy Jim was working at the time of the death, 2) that the FSM Supreme Court owned the vehicle that was driven, and 3) that the vehicle was operated by Wentworth, an employee of the court.20 Even assuming the plaintiff was not informed of any of these facts, that is not enough to raise a claim of fraud, or the tolling extension for fraudulent concealment.
Furthermore, the court is not bound to accept conclusory allegations, or bald assertions, nor does the court credit invective language. The complaint alleges that the defendant was "whisked away" to Chuuk and did not return until he was appointed Associate Justice of the FSM Supreme Court. Artful pleadings peppered with highly critical language and unsupported speculation are not enough to meet the particularity requirement. Without this prejudicial inference, the mere fact that Staff Attorney Wentworth left Pohnpei following the accident is not sufficient to establish that the plaintiff was thereby misled, or in some way relied upon that act to their detriment. As a matter of law, even if Wentworth's departure was sudden or quick, the defendant's absence from the state of Pohnpei is insufficient to state a claim upon which relief can be granted.
Finally, the plaintiff shows no reason for the failure to investigate a cause of action that was complete over 32 years ago. Accordingly, the court need not determine what is a reasonable time in which due diligence would have required the discovery of this cause of action. It simply was not pled.21
Pursuant to 6 F.S.M.C. 805, Limitation of Six years, "All actions other than those covered in the preceding sections of this chapter shall be commenced within six years after the cause of action accrues." Pursuant to 6 F.S.M.C. 806, tolling for disability, states in relevant part, "If the person entitled to a cause of action is a minor or is insane or is imprisoned when the cause of action first accrues, the action may be commenced within the times limited in this chapter after the disability is removed." (emphasis added). "In general, a cause of action accrues when the right to bring suit on a claim is complete – '[t]he true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion.'" Mid–Pac Constr. Co. (I), 6 FSM R. at 176 (citation omitted).
The court finds that in the normal course of events, after a person turns eighteen, they have six years to file a breach of promise action, as the action is tolled while they are under the age of majority. In this case, with tolling, the "disability" of being a minor child was removed around 2010 when the child turned eighteen. As a result, the statute of limitations on breach of promise began to run on September 3, 2010,
and the cause of action expired on September 3, 2016. Thus, the cause of action is over eight years late, even when considering a tolling period of over two decades.
Again, the plaintiff does not contend, or deny, the statute of limitation, but instead raises the argument that fraudulent concealment forms an additional basis for tolling. For the reasons stated above, the court finds that fraud was not pled at all, and even if inferred, it lacks the necessary particularity. Ultimately, the plaintiff failed to state any act of fraudulent concealment cognizable to the court.
Pursuant to 4 F.S.M.C. 123, Practice of Law Prohibited states, "No Justice, Clerk, officer, or employee of the Supreme Court shall practice law in the Federated States of Micronesia."22 Generally, this offense is enforced through the Model Code of Judicial Conduct (MCJC),23 the Model Rules of Professional Conduct (MRPC),24 and the FSM Disciplinary Rules and Procedures.25
Pursuant to MCJC Canon 5, a judicial officer "should regulate his extra–judicial activities to minimize the risk of conflict with his judicial duties." (emphasis added). To this end, subsection F specifically states, a judicial officer "shall not practice law." However, pursuant to MCJC Canon 4, a judicial officer "may engage in activities to improve the law, the legal system, and the administration of justice." Pursuant to Canon 4, subsection A, a judicial officer "may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice." (emphasis added). Furthermore, the comment to this section states,
As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that his time permits, he is encouraged to do so, either independently or through a bar association, judicial conference, or other organization
dedicated to the improvement of the law.
(emphasis added). Additionally, pursuant to MCJC Canon 6, Compensation Received for Quasi–Judicial and Extra–Judicial Activities,
A [judicial officer] may receive compensation and reimbursement of expenses for the quasi–judicial and extra–judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the [judicial officer] in his judicial duties or otherwise give the appearance of impropriety, subject to the following restrictions.
(emphasis added). Finally, the practice of law is broadly defined as,
The professional work of a lawyer, encompassing a broad range of services such as conducting cases in court, preparing papers necessary to bring about various transactions from conveying land to effecting corporate mergers, preparing legal opinions on various points of law, drafting wills and other estate–planning documents, and advising clients on legal questions. The term also includes activities that comparatively few lawyers engage in but that require legal expertise, such as drafting legislation and court rules. — Also termed legal practice.
BLACK'S LAW DICTIONARY (12th ed. 2024). "In the light of the historical development of the lawyer's functions, it is impossible to lay down an exhaustive definition of 'the practice of law' by attempting to enumerate every conceivable act performed by lawyers in the normal course of their work." State Bar of Arizona v. Arizona Land Title & Trust Co., 366 P.2d 1, 8–9 (Ariz. 1961).26 Nevertheless,
Such acts include, but are not limited to, one person assisting or advising another in the preparation of documents or writings which affect, alter or define legal rights; the direct or indirect giving of advice relative to legal rights or liabilities; the preparation for another of matters for courts, administrative agencies and other judicial or quasi–judicial bodies and officials as well as the acts of representation of another before such a body or officer. They also include rendering to another any other advice or services which are and have been customarily given and performed from day to day in the ordinary practice of members of the legal profession, either with or without compensation.
Id. at 14 (emphasis added).27
While every jurisdiction has a slightly different definition, the "practice of law" commonly emphasizes
the application of specialized legal knowledge, judgement, and skill, particularly in situations that affect the legal rights of others. Thus, the practice of law especially includes representing clients in court, advising clients on their legal rights, and preparing legal documents on behalf of others. Outside of this scope, are theoretical abstractions, which include speaking, writing, lecturing, teaching, or tutoring others in matters concerning the law. Teaching law classes and tutoring others involves explaining and discussing legal principles, theories, and case laws, but does not involve the application of the law. Not only is teaching not prohibited under the MCJC, but to the contrary, it is expressly encouraged and considered an obligation of judicial officers to do so.
Furthermore, extra–judicial activities are independently compensable under the MCJC. The court emphasizes that the purpose of the prohibition on practicing law is to minimize the risk of conflicts of interest, specifically to prevent a judicial officer from appearing in cases or participating in legal matters that would likely be brought before their own court. This would of course cast doubt on the impartiality of the court and likely impair the officer in the performance of his or her official duties. It is not intended to be a blanket prohibition on accepting compensation from any other external activity, investment, or financial venture on top of the wages of the officer.28
The court notes that ethical complaints are properly pursued through disciplinary proceedings, and that these matters are confidential between the attorney and the court itself.29 Nevertheless, as a matter of law, the court finds that no relief can be granted even when considered in the light most favorable to the plaintiff. The defendant cannot be found to have engaged in the unauthorized practice of law, or for financial impropriety in accepting compensation for teaching or tutoring, as these acts are simply not violations under the MCJC.30
The FSM Constitution article IX, § 2(o) states, the following powers are expressly delegated to Congress, "to impeach and remove the President, Vice–President, and justices of the Supreme Court." (emphasis added).31 Pursuant to 3 F.S.M.C. 702(1), which states in relevant part, "Impeachment proceedings must be initiated by a resolution of Congress." (emphasis added).32 Pursuant to 3 F.S.M.C. 701, bribery means "any act prohibited by section [515] of title 11 of this code." Pursuant to 11 F.S.M.C. 515,
A person commits the crime of bribery if he or she offers, confers, or agrees to confer upon another, or solicits, accepts, or agrees to accept from another: (a) any pecuniary benefit as consideration for the recipient's decision, opinion, recommendation, vote, or other exercise of discretion as a public official, or as a voter in any election, referendum, or plebiscite of the Federated States of Micronesia; (b) any benefit as consideration for the recipient's decision, vote, recommendation, or other exercise of official discretion as a public official in a judicial or administrative proceeding; or (c) any benefit as consideration for a violation of a known legal duty as a public official.
(emphasis added).
In Aten v. National Election Commissioner (III), our court reviewed and affirmed the political question doctrine:
Any bar to federal courts reviewing [Congress' decision as to membership] arises from the allocation of powers between the two branches of Federal government (a question of justiciability), and not from [a] failure to state a claim based on federal law . . . a political question is 'not justiciable in federal court because of the separation of powers provided by the constitution.' It is well established that the federal courts will not adjudicate political questions.
6 FSM R. 143, 145 (App. 1993) (emphasis added) (citations omitted). That court further articulated a political question test:
A political question is a case where there is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; . . . or the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; . . . or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Id. (emphasis added) (citation omitted). "When the Constitution has a textually demonstrable commitment of an issue to a coordinate branch of government, it is a nonjusticiable political question not to be decided by the court because of the separation of powers provided for in the Constitution." Christian v. Urusemal, 14 FSM R. 291, 294 (App. 2006); Urusemal v. Capelle, 12 FSM R. 577, 583–84 (App. 2004); Pohnpei v. AHPW, Inc., 14 FSM R. 1, 16 (App. 2006); Pacific Foods & Servs., Inc. v. National Oceanic Res. Mgt. Auth., 17 FSM R. 181, 186 (Pon. 2010). "Even when the court generally has jurisdiction over a case's subject matter, that case still must be justiciable in order for the court to be able to grant any relief." Rodriguez v. Ninth Pohnpei Legislature, 21 FSM R. 276, 280 (Pon. 2017). "Under the political question doctrine, when the Constitution contains a textually demonstrable commitment of an issue to a coordinate branch of government, it is a nonjusticiable political question not to be decided by a court because of the constitutionally mandated separation of powers." Id. "An impeachment proceeding's procedure, including its timing, is thus also a non–justiciable political question." Id. (citation omitted). That court held,
There is no possibility of success on the merits because it involves a nonjusticiable political question, the equities all favor the Pohnpei Legislature, and the public, interest will be served by permitting the Legislature's investigation of a possible impeachment to proceed. The court will not become involved in monitoring or managing the Pohnpei Legislature's constitutionally–assigned duties to investigate, and, if warranted, to impeach Pohnpei government officials.
Id. at 281. (emphasis added). Ultimately, a political question "is not for a court to decide. The Chuuk Legislature makes that decision. The court cannot. This is a political question that is beyond the court's jurisdiction." In re Constitutionality of Chuuk State Law No. 14–18–23, 22 FSM R. 258, 267 (Chk. 2019) (emphasis added); see FSM Civ. R. 12(b)(1).33
In this case, the removal of Associate Justice Wentworth from office is a political question. Under the constitution, impeachment is a power expressly reserved for Congress. The textual commitment to a coordinate branch is clear, and this is a non–justiciable issue upon which no relief can be granted to the plaintiff as a matter of law. Moreover, the court lacks jurisdiction over this issue.
Pursuant to FSM Civil Rule 15,
A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
(emphasis added). "Generally, leave to amend a complaint ought to be freely given." Primo v. Pohnpei Transp. Auth., 9 FSM R. 407, 413 (App. 2000) (citation omitted). "Although a court should exercise its discretion liberally to allow amended pleadings, a motion to amend a complaint may be denied if it is futile." Tom v. Pohnpei Utilities Corp., 9 FSM R. 82, 87 (App. 1999) (citation omitted). "One reason a motion to amend a complaint would be futile is if the claims sought to be added are barred by the relevant statute of limitations." Id.
[A]lthough Rule 9(b) calls for fraud to be pleaded with particularity, the allegations still must be as short, plain, simple, direct, and concise as is reasonable under the circumstances. In a similar vein, a failure to comply with many of the special pleading provisions in Rule 9 need not be remedied by a dismissal of the action or a striking of the pleading, but can be corrected through a motion for a more definite statement, an amendment under Rule 15, or the use of discovery procedures.
5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1291, at 16 (3d ed. 2004)
(emphasis added) (footnote omitted).
On October 17, 2024, plaintiff filed what appears to be a second supplement to the opposition.34 The court reads this final document to be a request for permission to amend the complaint. Defendants object that any amendment would be futile, as the action is barred by the statute of limitations. The court is not convinced, however, that there are no amendments that could be made to survive the statute of limitations in the wrongful death and breach of promise causes of action and that permission for such a possibility should be liberally granted for those claims. However, the court will not allow the plaintiff to amend the ethical complaints or the request for impeachment, as to do so would be futile. The court is mindful that a "dismissal for failure to state a claim is an adjudication on the merits, and is therefore typically entered as a dismissal with prejudice." 2 MOORE'S FEDERAL PRACTICE § 12.34[5], at 108.2 (2017) (Defenses and Objections) (emphasis added).35 Furthermore, "[a] court may dismiss a complaint sua sponte for failure to state a claim if the court gives the parties notice and an opportunity to amend or otherwise respond." 2 MOORE'S FEDERAL PRACTICE § 12.34[4][c], at 107 (2017) (Defenses and Objections) (emphasis added). Accordingly, all parties are hereby placed on notice that the court has the inherent authority to join sua sponte the FSM Government to the motion to dismiss and to reconsider the motion to dismiss without the need for subsequent refiling.
In conclusion, the plaintiff has not pled fraud, nor can any inferences meet with particularity the requirement of such a pleading. The plaintiff does not present any affirmative act of fraudulent concealment, nor does plaintiff show the exercise of reasonable due diligence in the pursuit of the claim, both of which are necessary to bring this cause of action. The pleadings are simply deficient of a cognizable claim. Even when viewed in the light most favorable to the plaintiff, the court finds that there are no set facts on which the plaintiff's claim can survive the statute of limitations defense in this case. However, the court will provide an opportunity for the defendant to amend on those two causes of action. Similarly, as a matter of law, plaintiff's ethical violations fall short, as is the request for removal which is a non–justiciable political question upon which the court can grant no relief. The court, however, will not allow plaintiff to amend those aspects of the complaint. Finally, the court will sua sponte reconsider the motion to dismiss when the amendment to the complaint is filed.36
UPON CONSIDERATION, the court GRANTS the motion to dismiss in favor of the FSM Supreme Court, and joined by Wentworth, in his official and individual capacity, regarding the ethical violations and impeachment request, but allows the plaintiff to AMEND the complaint with regard to the wrongful death and breach of promise causes of action.
IT IS HEREBY ORDERED that the court DISMISS the ethical violations and the request for impeachment against all defendants, pursuant to FSM Civil Rule 12(b)(6) and FSM Civil Rule 12(b)(1).
IT IS HEREBY ORDERED that the plaintiff has permission to AMEND the complaint and shall state with particularity a claim upon which relief could be granted, due no later than Friday, December 13, 2024.
IT IS FURTHER ORDERED that the Clerk of Court contract for a special process server who is either a police officer, from the Pohnpei State Police Department or a marshal from the Pohnpei Supreme Court to serve this Order on the Government.
_______________________________Footnotes:
1 Filed with a Memorandum in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction under FSM Civil Rule 12(b)(1) and Failure to State Claims Upon Which Relief May be Granted Under FSM Rule 12(b)(6) and an attachment, exhibit A, which is a Certificate of Death for Kammy Jim.
2 Defendant Larry Wentworth's Joinder in Defendant FSM Supreme Court's Motion to Dismiss.
3 Supplement in Opposition to Defendants Motion to Dismiss for Failure to State a Claim under Rule 12(b)(6).
4 Answer to Defendant's FSM Supreme Court Motion to Dismiss Dated 9/16/24 Received 10/7/24.
5 On a Rule 12(b)(6) motion, "the well–pled facts are accepted as true, with all inferences to be made in favor of the party opposing the motion to dismiss." FSM v. Koshin 31, 16 FSM R. 15, 18 (Pon. 2008) (emphasis added). "Facts and inferences drawn from the complaint must be viewed by the Court in the light most favorable to party opposing the motion to dismiss." Union Industry Co. v. Santos, 7 FSM R. 242, 244 (Pon. 1995) (emphasis added). "A motion under FSM Civil Rule 12(b) to dismiss for failure to state a claim may be granted only if it appears to a certainty that no relief could be granted under any state of facts which could be proven in support." Faw v. FSM, 6 FSM R. 33, 37 (Yap 1993) (emphasis added).
6 "During this threshold review, '[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." 2 MOORE'S FEDERAL PRACTICE § 12.34[1][a], at 78 (2017) (Defenses and Objections) (emphasis added). "The pleading must at least allege sufficient facts for the court to determine whether some recognized legal theory exists on which relief can be awarded to the pleader." Id. 12.34[1][b], at 86.
7 The court takes judicial notice of the certificate of death, a document which is a public record, not disputed, and central to the pleadings. "The court may consider only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings, and matter of which the judge may take judicial notice." 2 MOORE'S FEDERAL PRACTICE § 12.34[2], 12-92.1 (2017) (emphasis added). Pursuant to FSM Evidence Rule 201(d), "A court shall take judicial notice if requested by a party and supplied with the necessary information." See Berman v. College of Micronesia, 15 FSM R. 582, 595 (App. 2008) ("the court must 'take judicial notice if requested by a party and supplied with the necessary information"); Arthur v. Pohnpei, 16 FSM R. 581, 593 (Pon. 2009) ("the court may consider matters of public record including pleadings, orders and other papers filed with the court").
8 "Among the plausible and legitimate reasons for such limits are a desire to contain government liability within foreseeable bounds; to provide incentives for and enhance the availability of affordable insurance; and to promote settlement of claims by removing incentives for holding out for ever escalating damage amounts." Tosie v. Healy-Tibbets Builders, Inc., 5 FSM R. 358, 363 (Kos. 1992).
9 The age of majority is eighteen. See Tarauo v. Arsenal, 18 FSM R. 441, 442 (Chk. 2012) (Andrew Tarauo, in this tort action has passed the age of majority, he should be substituted as the party-plaintiff from here on in the place of his mother who appears as plaintiff as Andrew Tarauo's next friend"); "Age of Majority. All persons, whether male or female, residing in the Trust Territory, who shall have attained the age of eighteen years shall be regarded as of legal age and their period of minority to have ceased." 6 F.S.M.C. 1616; Welson v. FSM Social Sec. Admin., 21 FSM R. 348, 351 n.1 (Pon. 2017). "6 F.S.M.C. 1616 is a parallel statute under the FSM Code which also sets the age of majority at 18 years of age"). See also 51 Pon. C. § 1-106. "Age of majority. All persons, whether male or female, residing in the state of Pohnpei, who shall have attained the age of 18 years shall be regarded as of legal age and their period of minority to have ceased."
10 "Fraudulent concealment tolls limitations 'because a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run.'" Labaty v. UWT, Inc., 121 F. Supp. 3d 721, 744 (W.D. Tex. 2015). "A close cousin of the discovery rule is the 'well accepted principle . . . of fraudulent concealment.'" Migliori v. Boeing N. Am., Inc., 114 F. Supp. 2d 976, 983 (C.D. Cal. 2000). "Under the fraudulent concealment doctrine, a 'defendant's fraud in concealing a cause of action against him tolls the applicable statute of limitations, but only for that period during which the claim is undiscovered by plaintiff or until such time as plaintiff, by the exercise of reasonable diligence, should have discovered it.'" Id. (emphasis added). "Like the discovery rule, the rule of fraudulent concealment is an equitable principle designed to effect substantial justice between the parties; its rationale 'is that the culpable defendant should be estopped from profiting by his own wrong to the extent that it hindered an 'otherwise diligent' plaintiff in discovering his cause of action.'" Id. (citation omitted).
11 "In general, a cause of action accrues when the right to bring suit on a claim is complete – '[t]he true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion.'" Mid–Pac Constr. Co. v. Semes (I), 6 FSM R. 171, 176 (Pon. 1993) (citation omitted).
12 "The principle that a defendant's conduct that hinders or prevents a plaintiff from discovering the existence of a claim tolls the statute of limitations until the plaintiff discovers or should have discovered the claim. – Also termed fraudulent–concealment rule." BLACK'S LAW DICTIONARY 328 (9th ed. 2009).
13 "Fraud in the abstract, is largely a conclusion of law, and general allegations which do not set forth the particular circumstances are not sufficient." 37 AM. JUR. 2d Fraud and Deceit § 424 at 574 (1968). "General allegations of concealment are of no more value in pleading than those of fraud, and of no greater value in a reply." Id. at 575.
14 "On a Rule 12(b)(6) motion to dismiss, only the well–pled facts are to be accepted as true." Arthur v. Pohnpei, 16 FSM R. 581, 593 (Pon. 2009). "No matter how artfully the allegations may be crafted, the court does not assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Id. (emphasis added) (citation omitted). "Conclusory allegations or legal allegations masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Id. (citation omitted). Furthermore, "the court need not accept as true allegations that contradict facts which may be judicially noticed; for example, the court may consider matters of public record including pleadings, orders and other papers filed with the court." Id. (emphasis added) (citation omitted). "And the court does not have to credit invective, bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like." Id. (emphasis added) (citation omitted).
15 See Sorech v. FSM Dev. Bank, 18 FSM R. 151, 160 (Pon. 2012) ("the plaintiffs do not state that Sorech relied upon the misrepresentations the plaintiffs allege to be the basis of the collateral fraud, much less that her reliance induced her to act to her detriment").
16 "The plaintiff must point to 'affirmative acts of concealment.'" In re Refrigerant Compressors Antitrust Litig., 92 F. Supp. 3d 652, 668 (E.D. Mich. 2015).
17 "The doctrine generally requires that the defendant has taken positive acts of fraud or concealment, that these acts were intended to prevent and did prevent the plaintiff from discovering their cause of action. The concealment must be something beyond mere silence. Specifically, the plaintiff must demonstrate that the fraud was not discovered sooner due to the defendant's actions, [and] despite the exercise of reasonable diligence." Vox Media, Inc. v. Mansfield, 322 F. Supp. 3d 19 (2018).
18 "'Pleadings' are defined by Rule 7(a) as the complaint, answer, reply to a counterclaim, answer to a cross–claim, third–party complaint, and third-party answer. . . . '[n]o other paper will be considered a pleading except those specifically named in Rule 7(a). A motion in any form cannot stand as a pleading.'" Adams v. Island Homes Constr., Inc., 10 FSM R. 159, 161 (Pon. 2001) (citation omitted).
19 Fraud is "[a] knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment." BLACK'S LAW DICTIONARY 731 (9th ed. 2009).
20 In the Answer to the Defendant's Motion to Dismiss, plaintiff states that at the traditional apology, "They did not explain how and why Kammy was killed to the family."
21 Even if the cause of action is tolled for eighteen years, until the minor child reached the age of majority, and further extended due to fraudulent concealment, the plaintiff still states no reason for the failure to bring a claim for over a decade later.
22 Pursuant to 4 Pon. C. § 7-101, Practice of Law Prohibited, "The justices and judges of the courts of this state, whether temporary or permanent, and all law clerks providing services thereto, whether formally or informally, shall adhere to the standards of the Code of Judicial Conduct of the American Bar Association, except as otherwise provided by law. The Chief Justice may, by rule, prescribe stricter or additional standards."
23 Pursuant to Canon 3, of the 1972 Model Code of Judicial Conduct, the code applies indirectly to all court employees under Section A(2), Administrative Responsibilities, which states, "A judge should require his staff and court officials subject to his direction and control to observe the standards of fidelity and diligence that apply to him."
24 Pursuant to MRPC 5.5, the unauthorized practice of law, "a lawyer shall not, (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or (b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law. (emphasis added). The comment to this rules states, in relevant part, The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons." (emphasis added).
25 Pursuant to Disciplinary Rule 14, unauthorized practice of law, "Any attorney or person who practices law before the national courts of the Federated States of Micronesia without being admitted to the practice of law by the Supreme Court, or any attorney who practices law before the national courts after being disbarred or suspended shall be held in contempt of court and subject to the sanctions pertaining thereto. Pursuant to Disciplinary Rule 4(a), "Charges of professional misconduct may be initiated by any justice of the Supreme Court upon motion by that justice or by any other person by advising the court of the nature of the charge and indicating the factual basis for the charges."
26 "It is neither necessary nor desirable to attempt the formulation of a single specific definition of what constitutes the practice of law. Functionally the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. The essence of the professional judgment of the lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client; and thus, the public interest will be better served if only lawyers are permitted to act in matters involving professional judgment." In re Rose, 314 B.R. 663, 703 (Bankr. E.D. Tenn. 2004).
27 "Where trial work is not involved but the preparation of legal documents, their interpretation, the giving of legal advice, or the application of legal principles to problems of any complexity, is involved, these activities are still the practice of law." Lukas v. Bar Ass'n of Montgomery County, 371 A.2d 669, 673 (Md. Ct. Spec. App. 1977) (emphasis added). "To determine whether an individual has engaged in the practice of law, the focus of the inquiry should 'be on whether the activity in question required legal knowledge and skill in order to apply legal principles and precedent.'" Attorney Grievance Comm'n of Md. v. Hallmon, 681 A.2d 510, 514 (Md. Ct. App. 1996) (emphasis added); In re Discipio, 645 N.E.2d 906, 910, 58 A.L.R.5th 867, 873 (Ill. 1994); Louisiana State Bar Ass'n v. Edwins, 540 So.2d 294, 299 (La. 1989).
28 In fact, such financial activities are anticipated by the MCJC. Pursuant to MRJC Canon 4(c)(2), "a judge may hold and manage investments, including real estate, and engage in other remunerative activity, but should not serve as an officer, director, manager, advisor, or employee of any business." Those financial matters are nevertheless subject to disclosure requirements as required by MRJC Canon 3, Disqualification, and MRJC Canon 6,"A Judge File should Regularly File Reports of Compensation Received for Quasi - Judicial Activities or Extra - Judicial Activities."
29 Pursuant to Disciplinary Rule 5(a), "Except as otherwise herein provided, proceedings before a reviewing justice shall be governed by the Rules of Civil Procedure of the Supreme Court and shall be confidential." (emphasis added).
30 Even if defendant Wentworth was paid were "huge sums of money", the act of mentoring is not outside of the scope of legal duty. Noting that in a Rule 12(b)(6) motion to dismiss, "the court does not have to credit invective, bald assertions, unsupportable conclusions." Arthur, 16 FSM R. at 593 (emphasis added). The pleadings are, on their face, insufficient to establish what those sums were.
31 Impeachment means "A quasi–judicial process by which a legislative chamber calls for the removal from office of a public official, or disqualification from future officeholding of a former officeholder, accomplished by presenting a written charge of the official's alleged misconduct; esp., the initiation of a proceeding in the U.S. House of Representatives against a federal official, such as the President or a judge." IMPEACHMENT, BLACK'S LAW DICTIONARY (12th ed. 2024) (emphasis added).
32 Pursuant to 3 F.S.M.C. 702(1),
An impeachment resolution:
(a) Shall state that the Congress has found that it is probable that the accused official committed an act of treason, bribery, or conduct involving corruption in office;
(b) Shall plainly describe each alleged instance of treason, bribery, or conduct involving corruption in office for which the Congress has made a finding of probability; and
(c) Shall provide or state the location of documentary evidence of each alleged instance of treason, bribery, or conduct involving corruption in office for which Congress has made a finding of probability.
33 FSM Civ. R. 12(b)(1), "lack of jurisdiction over the subject matter." "Unlike the rules of standing, ripeness, and mootness, political question doctrine purports to establish that a particular question is beyond judicial competence, no matter who raises it, how immediate the interests affected, or how burning the controversy." 13C CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3534, at 664 (3d ed. 2008).
34 Answer to Defendant's FSM Supreme Court Motion to Dismiss Dated 9/16/24 Received 10/7/24.
35 Dismissed with prejudice means "removed from the court's docket in such a way that the plaintiff is foreclosed from filing a suit again on the same claim or claims." BLACK'S LAW DICTIONARY 537 (12th ed. 2024).
36 The defendants shall have the usual time to respond but are not obligated to do so.
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