FSM SUPREME COURT TRIAL DIVISION
Cite as Asor v. Simina, 24 FSM R. 641 (Chk. 2024)
SABINO ASOR, SEITIRO PAUL, TAKAMICHY MORI,
OLYMPAS SAMUEL, and MAIMICHY MASIS,
Plaintiffs,
vs.
WESLEY SIMINA, in his personal capacity, ESMOND
B. MOSES, in his official capacity as Speaker of the
FSM Congress,1 TIWITER ARITOS, in his official
capacity as FSM Congressman and in his private
capacity, SINGEO MARSOLO, as the Mayor of Tol,
ALEXANDER NARRUHN, the FSM DEPARTMENT OF
FINANCE, the CHUUK STATEWIDE DEVELOPMENT
AUTHORITY, and the FAICHUK DEVELOPMENT
Defendants.
CIVIL ACTION NO. 2021-1003
ORDER DISPOSING OF MOTIONS
Larry Wentworth
Associate Justice
Hearing: January 25, 2023
Decided: December 13, 2024
APPEARANCES:
For the Plaintiff:
Sabino S. Asor, Esq.
213 Raven Way
Dededo, Guam 96929
For the Defendant:
Jeffrey S. Tilfas, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
For the Defendant:
Charleston Bravo
(Marsolo)
Legal Consultant
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942
* * * *
Summary judgment is proper when, viewing the facts in the light most favorable to the party against whom judgment is sought, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The same rule applies when there are cross-motions for summary judgment. Asor v. Simina, 24 FSM R. 641, 646 (Chk. 2024).
Since the summary judgment standard does not change when the parties bring cross-motions for summary judgment, each nonmovant will receive the benefit of favorable inferences, but merely because opposing parties have filed cross-motions does not mean that summary judgment must be granted for one side or the other since each cross-motion is independently examined on its own merit. Thus, cross motions for summary judgment may both be denied. Asor v. Simina, 24 FSM R. 641, 646 (Chk. 2024).
When cross-motions for summary judgment are filed simultaneously, or nearly so, the court ordinarily considers the two at the same time, applying the same standard to each motion, but even then the court must mull each motion separately, drawing inferences against each movant in turn and keeping in mind that separate summary judgment motions from opposing parties are not an admission that no material facts remain in dispute. Asor v. Simina, 24 FSM R. 641, 646-47 (Chk. 2024).
Because, when moving for summary judgment, the plaintiffs' burden extends to affirmative defenses as well as to the plaintiffs' own positive allegations, the plaintiffs must not only show that there is no issue of material fact, but must also show that the affirmative defenses are insufficient as a matter of law. Asor v. Simina, 24 FSM R. 641, 647 (Chk. 2024).
Generally, a party that has pled an affirmative defense but does not raise that defense in response to a summary judgment motion has waived or abandoned that defense. Asor v. Simina, 24 FSM R. 641, 647 (Chk. 2024).
While a congressman may endorse and support other candidates for office, there is a difference between an elected official supporting a candidate for another office and an elected official improperly using government resources to enhance the chances of that candidate's election, so when there is a genuine issue in that regard, summary judgment will be denied. Asor v. Simina, 24 FSM R. 641, 647 (Chk. 2024).
When a defendant, who was sued in both his private capacity and his official capacity as a mayor,
passed away, he was dismissed in his private capacity since no one moved to substitute anyone for him in that capacity, but in his official capacity as mayor, he was automatically replaced by his successor in that office. Asor v. Simina, 24 FSM R. 641, 647-48 n.6 (Chk. 2024).
When the complaint does not plead any action by the then mayor is in official capacity, and, at best, the court can infer from the complaint that the then mayor is alleged to have conspired with the defendant congressmen to use the congressmen's official authority, not the mayor's official authority, to further a conspiracy and that therefore the mayor was acting in his private (or individual) capacity in that alleged conspiracy, the cross-motion for summary judgment filed by the mayor in his official capacity will be granted. Asor v. Simina, 24 FSM R. 641, 648 (Chk. 2024).
Plaintiffs, in their summary judgment motion, are required to address and overcome the defendants' affirmative defenses. Asor v. Simina, 24 FSM R. 641, 648-49 (Chk. 2024).
Selective prosecution is a criminal defense, not a civil affirmative defense. Asor v. Simina, 24 FSM R. 641, 649 (Chk. 2024).
Since the plaintiffs were all candidates allegedly adversely affected in the elections covered by the complaint, they would be expected to have standing when no conceivable statute of limitations could bar the civil action since it was filed shortly after the March 2, 2021 election and seven months after the municipal election in the complaint. Asor v. Simina, 24 FSM R. 641, 649 (Chk. 2024).
To assert an equitable estoppel affirmative defense, the defendant(s) must plead detrimental reliance on an act or statement of the plaintiff, and the defense will fail when the defendants do not. Asor v. Simina, 24 FSM R. 641, 649 (Chk. 2024).
The civil procedure rules must not be construed to extend or limit the court's jurisdiction. Asor v. Simina, 24 FSM R. 641, 649 (Chk. 2024).
Limitation of liability is a statutory defense in admiralty cases, not an affirmative defense in a non-admiralty case. Asor v. Simina, 24 FSM R. 641, 649 (Chk. 2024).
Defendants may abandon their affirmative defenses by not raising them in their oppositions to the plaintiffs' summary judgment motion. Asor v. Simina, 24 FSM R. 641, 649 (Chk. 2024).
To recover for civil conspiracy, a plaintiff must show 1) a combination of two or more persons; 2) the persons seek to accomplish an object or course of action; 3) the persons reach a meeting of the minds on the object or course of action; 4) one or more unlawful, overt acts are taken in pursuance of the object or course of action; and 5) damages occur as a proximate result. Asor v. Simina, 24 FSM R. 641, 649 (Chk. 2024).
A defendant is subject to liability for conspiracy to commit a tort upon proof of the following elements: 1 the defendant made an agreement with another to commit a wrong; 2) a tortious or unlawful
act was committed against the plaintiff in furtherance of the agreement; and 3) the plaintiff suffered economic loss as a result. Asor v. Simina, 24 FSM R. 641, 649-50 (Chk. 2024).
When no Micronesian legislative body has addressed the matter and no party suggests that the matter is influenced by customary law, the principles stated in the Restatements of Torts may be considered. Asor v. Simina, 24 FSM R. 641, 650 n.8 (Chk. 2024).
To show a civil conspiracy, the plaintiff must show that there was a single plan, that the alleged co-conspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant, and the existence of an agreement may be inferred from the circumstances and the parties' acts and conduct. Asor v. Simina, 24 FSM R. 641, 650 (Chk. 2024).
In summary judgment proceedings, the court's role is not to weigh the evidence to determine where the preponderance of the evidence lies but instead to determine whether there is a genuine issue for trial. Asor v. Simina, 24 FSM R. 641, 650 (Chk. 2024).
In a summary judgment procedure, the court must view the evidence in the light most favorable to the non moving party and decide if a reasonable fact-finder could find in favor of the non moving party based on the evidence presented. The court cannot use summary judgment to weigh the evidence to determine where the preponderance lies in advance of its being presented in an evidentiary hearing or a trial. Asor v. Simina, 24 FSM R. 641, 650 (Chk. 2024).
Those who cooperate, tacitly or expressly, in particular conduct to pursue a common illegal design (or a legal design by illegal acts) are said to be cooperating in concert. Each of those acting in concert is liable jointly and severally for all of the intended or foreseeable resulting harm. That is because liability for civil conspiracy depends on a conspirator's performance of some underlying tortious act and is not independently actionable; rather, it is a means for establishing vicarious liability for an underlying tort. Asor v. Simina, 24 FSM R. 641, 651 (Chk. 2024).
Thus, if a defendant had merely agreed with other defendants to allow them to commit the alleged wrongful acts in support of his candidacy, he could be held liable for civil conspiracy because once a plaintiff proves that the defendant was a party to an agreement to commit a wrong, the defendant becomes liable for any tort committed by others in furtherance of the conspiracy. The defendant need not be shown to have made any further causal contribution to the plaintiff's injury. Asor v. Simina, 24 FSM R. 641, 651 (Chk. 2024).
The major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity. But a defendant who joins a conspiracy is generally not responsible for wrongs completed before that time. Asor v. Simina, 24 FSM R. 641, 651 (Chk. 2024).
* * * *
LARRY WENTWORTH, Associate Justice:
As recounted in the court's January 25, 2023 Order Memorializing Motion Hearing, the plaintiffs' oral motion to dismiss Marz Akapito and Mayor Jimmy Silo as plaintiffs was granted with the defendants' consent. The court took under submission: 1) the Plaintiffs' Motion for Partial Summary Judgment, filed September 12, 2022; 2) Defendants Simina and Aritos in Their Official Capacities, and FSM Finance Response to Plaintiffs' Motion for Partial Summary Judgment, filed November 10, 2022; 3) Opposition to Plaintiffs' Motions for Partial Summary Judgment [and] Cross Motion for Summary Judgment, filed by defendant Singeo Marsolo in his official capacity as Mayor of Tolensom (also called Tol) on December 12, 2022; 4) Opposition to Plaintiffs' Motions for Partial Summary Judgment, filed by the Chuuk Statewide Development Authority and the Faichuk Development Authority on December 12, 2022; 5) Motion for Summary Judgment [and] Opposition to Motion for Partial Summary Judgment, filed by defendant Alexander Narruhn on December 20, 2022; and 6) the plaintiffs' Opposition to Narruhn's Motion for Summary Judgment, filed December 28, 2022. All other motions were either withdrawn or deemed moot because the movant was satisfied with the current state of affairs.2
The above motions are decided herein. The court hereby grants Singeo Marsolo's Cross-Motion for Summary Judgment, grants the plaintiffs' summary judgment only on certain of the defendants' affirmative defenses and otherwise denies it, and denies defendant Narruhn's summary judgment.
This case arises from the election campaigns for the Chuuk state election, which was held on March 2, 2021. The plaintiffs allege that the various defendants engaged in a civil conspiracy to use government resources, including government project funds and patrol boats, to prevail in the March 2021 national and state elections to the detriment of the plaintiff candidates and that the defendants thereby violated their equal protection rights to the free exercise of their civil political rights. They also allege that earlier the defendants used their influence over development project funds to influence the September 2020 Tolensom municipal election and that thereafter the Tolensom mayor joined the other defendants in the civil conspiracy.
The plaintiffs plead six causes of action: that 1) the defendant congressmen, through their respective development authorities,3 used national government projects and resources to benefit their preferred Tolensom mayoral candidate, thus violating the civil rights of mayoral candidate [plaintiff] Maimichy Masis; 2) the defendant congressmen, through the authority of their offices, made use of a national government vessel to benefit the campaign of their preferred Chuuk gubernatorial candidate, Alexander Narruhn, to the injury of other Chuuk gubernatorial candidates,4 thus violating those candidates' rights to equal protection; 3) the defendant congressmen, through their respective development authorities' use or denial of government projects or resources, violated the plaintiffs' right to free exercise of their political speech rights; 4) the defendant congressmen and their preferred candidates conspired to interfere with free exercise of
their civil rights; 5) the defendant congressmen, through their respective development authorities and named agencies, conspired in the coercive and discriminatory use of national projects and properties (such as patrol boats) in violation of law, and thereby injured the plaintiffs free exercise of their civil rights; and 6) the defendant congressmen and candidate Narruhn conspired to use the government patrol boat to campaign for Narruhn to the exclusion of other candidates which showed a tacit agreement for the unlawful use of government property for campaign purposes, violating the other candidates' equal protection rights.
The plaintiffs seek as relief: 1) a declaratory judgment that the defendants collectively and individually violated the plaintiffs' civil rights by using the relevant development authorities and national public projects to advance their own candidates and thereby injure their opponents [the plaintiffs and others]; 2) an injunction prohibiting congressmen and their relevant development authorities agencies from distributing public projects during election years – not 12 months before or six months after an election other than to state or municipal governments; 3) an injunction prohibiting all agencies, including the development authorities from processing public projects except upon the showing of the minutes of the board's vote approving those projects and that such development agencies not be located at a congressman's residence or employ the congressman's close relatives; 4) that the complaint's allegations be referred to the Department of Justice for referral to outside counsel for appropriate actions; and 5) that punitive damages be granted.
The defendant congressmen and FSM Finance, in their answer, deny that the plaintiffs' claims have merit and raise the affirmative defenses of 1) lack of jurisdiction; 2) failure to state a claim; 3) selective prosecution; 4) lack of standing; 5) statute of limitations; 6) equitable estoppel; 7) laches; 8) insufficiency of service of process; 9) waiver; 10) mootness; 11) unclean hands; 12) equitable doctrine of collateral damages; 13) ripeness; 14) barred by the civil procedure rules; and 15) limitation of liabilities.
Singeo Marsolo, and the Chuuk Statewide Development Authority and the Faichuk Development Authority filing separately, deny liability and raise the affirmative defenses of 1) lack of jurisdiction; 2) failure to state a claim; 3) selective prosecution; 4) lack of standing; 5) laches; 6) insufficiency of service of process; 7) statute of limitations; 8) equitable estoppel; 9) waiver; 10) unclean hands; 11) equitable doctrine of collateral damages; 12) limitation of liabilities; 13) ripeness; 14) mootness; and 15) barred by the civil procedure rules.
Summary judgment is proper when, viewing the facts in the light most favorable to the party against whom judgment is sought, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. E.g., Mailo v. Chuuk Health Care Plan, 20 FSM R. 18, 22 (App. 2015); Congress v. Pacific Food & Servs., Inc., 17 FSM R. 542, 545 (App. 2011); Weno v. Stinnett, 9 FSM R. 200, 206 (App. 1999); Iriarte v. Etscheit, 8 FSM R. 231, 236 (App. 1998); Nahnken of Nett v. United States, 7 FSM R. 581, 586 (App. 1996).
The same rule applies when there are cross-motions for summary judgment. Fuji Enterprises v. Amor, 23 FSM R. 130, 137 (Pon. 2021). Since the summary judgment standard does not change when the parties bring cross-motions for summary judgment, each nonmovant will receive the benefit of favorable inferences. Id. Merely because opposing parties have filed cross-motions does not mean that summary judgment must be granted for one side or the other since each cross-motion is independently examined on its own merit. Id. Thus, cross motions for summary judgment may both be denied. Isaac v. Weilbacher, 8 FSM R. 326, 337 (Pon. 1998).
When cross-motions for summary judgment are filed simultaneously, or nearly so, the court ordinarily considers the two at the same time, applying the same standard to each motion, but even then the court must mull each motion separately, drawing inferences against each movant in turn and keeping in mind that separate summary judgment motions from opposing parties are not an admission that no material facts
remain in dispute. Fuji Enterprises, 23 FSM R. at 138. The two defendants' cross-motions for summary judgment will be considered as filed nearly simultaneously since, as a result of court-granted enlargements, they were filed three months after the plaintiffs' summary judgment motion. The cross-motions also included oppositions to the plaintiffs' summary judgment motion. To the extent they are separate motions rather than oppositions, the court will treat them separately.
Because, when moving for summary judgment, the plaintiffs' burden extends to affirmative defenses as well as to the plaintiffs' own positive allegations, the plaintiffs "must not only show that there is no issue of material fact, but must also show that the affirmative defenses are insufficient as a matter of law." Onanu Municipality v. Elimo, 20 FSM R. 535, 544 (Chk. 2016). Generally, a party that has pled an affirmative defense but does not raise that defense in response to a summary judgment motion has waived or abandoned that defense. Macayon v. FSM, 22 FSM R. 544, 555 (Chk. 2020).
In their Second Amended Complaint's first cause of action, the plaintiffs allege that, during the September 2020 Tolensom mayoral election, the defendant congressmen agreed to support their chosen candidate (Amando Marsolo) for mayor and coordinated funneling their respective development authorities' national public project and official representation funds to Tolensom voters who were willing to support and vote for their chosen mayoral candidate.
A. Plaintiffs' Motion for Partial Summary Judgment
The plaintiffs move for summary judgment on their claim that mayoral candidate Maimichy Masis's equal protection rights were violated in the September 2021 Tolensom municipal election when the defendants allegedly bought votes for his opponent, incumbent mayor Amando Marsolo, by promising public project funds to, and supplying free bags of rice to, those who voted for Amando Marsolo, as ascertained through the seemingly illegal practice of "open voting."5 To support these allegations, the plaintiffs rely on plaintiff Masis's affidavit and other affidavits that aver that the defendant congressmen supplied many bags of rice to Tolensom voters who voted for the incumbent mayor. An affiant averred that municipal election officials at her polling poll offered her rice if she and her husband openly showed that they voted for the incumbent. The plaintiffs contend that this is conclusive evidence of quid pro quo corruption and vote-buying and that national government officials have no conceivable compelling interest to "officially" endorse, through the use of public funds, candidates for municipal office.
The court recognizes that a congressman may endorse and support other candidates for office. However, the court realizes that there is a difference between an elected official supporting a candidate for another office and an elected official improperly using government resources to enhance the chances of that candidate's election. In this case, there is a genuine issue in that regard. For instance, whether the defendants can be connected with the alleged tortious "open voting" or whether a defendant committed some other wrongful act are material facts in dispute.
Accordingly, plaintiff Masis (the only plaintiff who was a Tol mayoral candidate and thus the only plaintiff with standing for this claim) is denied summary judgment on the first cause of action.
B. Singeo Marsolo's Cross-Motion for Summary Judgment
Singeo Marsolo, the current Mayor of Tolensom, is sued only in his official capacity.6 He moves for
summary judgement on the ground that, even assuming that Maimichy Masis's or the plaintiffs' civil rights were violated, only the plaintiffs' fourth cause of action even mentions municipal officials or potentially implicates the Tolensom mayoral office. That cause of action, for "Conspiracy Interference with Free Exercise – Candidates," alleges that:
The actions of the congressmen defendants and their relevant candidates in agreeing and aiding the congressmen's use of their official authority to cause use [sic] of their national projects and resources to interfere with their plaintiff opponents' free exercise of their civil rights is a violation of those plaintiffs' civil rights, proximately causing their legal damages.
Pls.' Second Amended Compl. ¶ 42 (filed Dec. 20, 2021; served July 13, 2022).
This cause of action alleges that the defendants conspired to use the congressmen's official authority to achieve the desired end. No allegation or mention is made about the use of any mayoral office's authority (or of any mayor acting in his official capacity) to further the alleged conspiracy. Nor do the plaintiffs plead that the Tolensom mayor used his official authority to further the alleged conspiracy.
The plaintiffs, although they did not file anything specifically opposing Singeo Marsolo's motion, they did argue that the previous Tolensom mayor (Amando Marsolo) was involved, in his official capacity, because of the Tolensom election officials' alleged encouragement, at one municipal polling place, of the illegal practice of "open voting" to further his (Amando's) reelection. But no such claim is pled – the Second Amended Complaint does not plead any action by the then Tolensom mayor is in official capacity. At best, the court can infer, from paragraph 42 of that complaint, that the then Tolensom mayor is alleged to have conspired with the defendant congressmen to use the congressmen's official authority, not the Tolensom mayor's official authority, to further a conspiracy and that therefore the Tolensom mayor was acting in his private (or individual) capacity in that alleged conspiracy.
Accordingly, since the Plaintiffs' Second Amended Complaint does not allege any action by a Tolensom mayor in his official capacity, Singeo Marsolo's cross-motion for summary judgment is granted.
A. Plaintiffs' Motion for Partial Summary Judgment
The plaintiffs move for summary judgment on their claims that their equal protection rights to free speech and to free association were violated when the defendant congressmen and their respective development authorities improperly used public project funds and discriminatorily allowed access to a government patrol boat to enhance the chances that their preferred candidate for Chuuk governor, Alexander Narruhn, would be elected. The plaintiffs have submitted affidavits that aver that Chuuk voters were offered public project funds if they supported Narruhn and were denied public project funds if they did not.
The plaintiffs also move for summary judgment on their claim that the defendants engaged in a civil conspiracy to violate the plaintiffs' civil rights when they agreed to help achieve Narruhn's election by engaging in improper or tortious acts to further Narruhn's election. These improper acts allegedly included distribution of rice and chicken to those who voted for Narruhn as well as the promise of public project funds. These are also supported by affidavits and depositions.
1. Affirmative Defenses
The plaintiffs, in their summary judgment motion, did not, as they are required to do, address and
overcome the defendants' affirmative defenses. Onanu Municipality, 20 FSM R. at 544. (The defendants also did not rely on those defenses in their oppositions.) The plaintiffs did, however, address most of the asserted affirmative defenses when they moved to strike most of the affirmative defenses and have Rule 11 sanctions imposed for raising frivolous and irrelevant defenses. Pls.' Mot. to Strike Affirmative Defenses & for Rule 11 Sanctions at 2-6 (Oct. 3, 2022). The defendant congressman and FSM Finance opposed that motion but only to the extent to argue that they did not raise the defenses in bad faith, but to preserve their rights, because if the defenses were not raised, they would be waived; the defendants did not address the meritoriousness of any of the challenged defenses. Defs. Simina & Aritos and FSM Finance Response to Pls.' Mot. to Strike Affirmative Defenses & for Rule 11 Sanctions (Oct. 8, 2022).
While the plaintiffs may have withdrawn its Rule 11 motion, the court will take notice of the parties' arguments about the defenses they claimed were sanctionable. Those defenses were lack of jurisdiction; selective prosecution; lack of standing; the statute of limitations; equitable estoppel; waiver; mootness; ripeness; barred by the civil procedure rules; and limitation of liabilities.
The court agrees that these affirmative defenses are frivolous and unsupported. This court obviously has jurisdiction over civil rights claims. 11 F.S.M.C. 701(3). Selective prosecution is a criminal defense, and this is not a criminal case. Chuuk Health Care Plan v. Pacific Int'l, Inc., 17 FSM R. 535, 538-39 (Chk. 2011) (since selective prosecution is a defense in a criminal case, when a civil defendant asserts that it was singled out for enforcement, the court will read this as an equal protection claim7). Since the plaintiffs were all candidates allegedly adversely affected in the three elections covered by the complaint, they would be expected to have standing. No conceivable statute of limitations could bar this civil action since it was filed on March 25, 2021, shortly after the March 2, 2021 national and Chuuk state elections and seven months after the Tolensom municipal election.
The equitable estoppel defense fails because, to assert this affirmative defense, the defendant(s) must plead detrimental reliance on an act or statement of the plaintiff, see Harden v. Inek, 19 FSM R. 278, 281 (Pon. 2014), and the defendants did not plead or allege any such facts. Nor did the defendants aver any facts showing waiver. Nothing was alleged that would show that the case or dispute is moot. The same is true of ripeness. The claim that this civil action is barred by the Civil Procedure Rules is wholly frivolous. "These [civil procedure] rules shall not be construed to extend or limit the jurisdiction of the court." FSM Civ. R. 82. And limitation of liability is a statutory defense in admiralty cases. See 19 F.S.M.C. 1101 et seq. This is not an admiralty case. If limitation of liability were construed to be a concept such as comparative negligence, this is not a negligence case. If it is construed to be a defense such as mitigation of damages, it is also inapplicable.
The plaintiffs have shown that the above-discussed affirmative defenses are insufficient as a matter of law. The defendants may have even abandoned these defenses by not raising them in their oppositions. Macayon, 22 FSM R. at 555. The court will therefore grant the plaintiffs summary judgment on these affirmative defenses, which are hereby disallowed or dismissed.
2. Civil Conspiracy
To recover for civil conspiracy, a plaintiff must show "(1) a combination of two or more persons; (2) the persons seek to accomplish an object or course of action; (3) the persons reach a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts are taken in pursuance of the object or course of action; and (5) damages occur as a proximate result." First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 222 (Tex. 2017). Thus,
A defendant is subject to liability for conspiracy to commit a tort upon proof of the following elements:
(a) the defendant made an agreement with another to commit a wrong;
(b) a tortious or unlawful act was committed against the plaintiff in furtherance of the agreement; and
(c) the plaintiff suffered economic loss as a result.
RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR ECONOMIC HARM § 27 (2020).8 The plaintiff must show that "there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant." Hooks v. Hooks, 771 F.2d 935, 944 (6th Cir. 1985). "The existence of an agreement may be inferred from the 'circumstances, acts and conduct of the parties.'" Detroit Will Breathe v. City of Detroit, 524 F. Supp. 3d 704, 709 (E.D. Mich. 2021) (quoting Fremont Reorganizing Corp. v. Duke, 811 F. Supp. 2d 1323, 1341 (E.D. Mich. 2011)).
3. Standard Applied
The plaintiffs contend that the affidavits they have supplied and the depositions they have taken prove, by a preponderance of the evidence, that they were the victims of the defendants' wrongful acts and conspiracy. But, in summary judgment proceedings, the court's role is not to weigh the evidence to determine where the preponderance lies but instead to determine whether there is a genuine issue for trial. FSM Civ. R. 56(c). The court must view the evidence in the light most favorable to the non moving party and decide if a reasonable fact-finder could find in favor of the non moving party based on the evidence presented. The court cannot use the summary judgment procedure to weigh the evidence to determine where the preponderance lies in advance of its being presented in an evidentiary hearing or a trial.
The court concludes that there are material issues present for trial, including broadly, whether there was an agreement, who were parties to the agreement, when they became parties to the agreement, what acts were tortious or wrongful, and, perhaps the most difficult issue, but not one raised by the plaintiffs' partial summary judgment motion because it only sought judgment on liability issues, what were the economic or actual damages.
Accordingly, except for summary judgment on the meritless affirmative defenses, the plaintiffs' motion for partial summary judgment is denied.
B. Alexander Narruhn's Summary Judgment Motion
Alexander Narruhn, now Governor of Chuuk, notes that the first three causes of action (when pled in the First Amended Complaint) were dismissed against him so that the only cause of action addressed to him is the civil conspiracy claim. In the Second Amended Complaint, the conspiracy claim against Narruhn is contained in the fourth and the sixth causes of action. He moves for summary judgment on this claim because there is no evidence that he engaged in any improper acts, especially since he was not an officeholder when he was running for Chuuk governor, and thus had no ability to commit any of the alleged wrongful or illegal acts that allegedly violated the plaintiffs' civil rights.
1. Whether a Co-Conspirator
"Those who cooperate, tacitly or expressly, in particular conduct to pursue a common illegal design (or a legal design by illegal acts) are said to be cooperating in concert. Each of those acting in concert is liable jointly and severally for all of the intended or foreseeable resulting harm." DAN B. DOBBS, THE LAW OF TORTS § 340, at 936 (2000). That is because liability for civil conspiracy depends on a conspirator's performance of some underlying tortious act and is not independently actionable; rather, it is a means for establishing vicarious liability for an underlying tort. Mori v. Hasiguchi, 19 FSM R. 222, 226 (Chk. 2013). The underlying tortious act is the alleged violation of 11 F.S.M.C. 516(1)(a), which, among other things, prohibits offering any pecuniary benefit as consideration for the recipient's vote as a voter in any election, and the violation of the plaintiffs' civil rights.
Thus, if Narruhn had merely agreed with other defendants to allow them to commit the alleged wrongful acts in support of his candidacy, he could be held liable for civil conspiracy because "[o]nce a plaintiff proves that the defendant was a party to an agreement to commit a wrong, the defendant becomes liable for any tort committed by others in furtherance of the conspiracy. The defendant need not be shown to have made any further causal contribution to the plaintiff's injury." RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR ECONOMIC HARM § 27 cmt. c (2020). "[T]he major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity." Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454, 457 (Cal. 1994) (in bank).
2. Motion Denied
The plaintiffs have produced more than enough evidence to show that there is a genuine issue of whether Narruhn made such an agreement. Narruhn's summary judgment motion is therefore denied.
But "[a] defendant who joins a conspiracy is generally not responsible, however, for wrongs completed before that time." RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR ECONOMIC HARM § 27 cmt. c (2020). Since there is no evidence, or allegation, that Narruhn joined the other defendants' alleged conspiracy before the September 2020 Tolensom municipal election, Narruhn would be granted summary judgment on the plaintiffs' first cause of action if that cause of action had been pled against him. But it appears that it was not, and, at any rate, the court earlier dismissed a similar cause of action in an earlier complaint against Narruhn, Order Dismissing in Part Complaint Against Alexander Narruhn & Granting Rule 11 Mot at 2-3 (June 21, 2021).
Accordingly, Singeo Marsolo's Cross-Motion for Summary Judgment is granted and he is dismissed as a party. The plaintiffs' summary judgment motion has overcome the defendants' affirmative defenses of lack of jurisdiction; selective prosecution; lack of standing; the statute of limitations; equitable estoppel; waiver; mootness; ripeness; barred by the civil procedure rules; and limitation of liabilities. Those defenses are disallowed or dismissed. The plaintiffs' summary judgment motion is otherwise denied, as is Alexander Narruhn's motion for summary judgment.
This matter should be set for trial.
_______________________________Footnotes:
1 Since Wesley Simina was also sued in his official capacity as the Speaker of the FSM Congress, his successor in that office is automatically substituted for him in his official capacity as Speaker. FSM Civ. R. 25(d)(1).
2 The plaintiffs' summary judgment motion included a motion to amend the pleadings to conform to the evidence, which sought to add several aggrieved voters as plaintiffs. That request was withdrawn during the January 25, 2023 hearing.
3 The Faichuk Development Authority was the development authority for Congressman Tiwiter Aritos's district and the Chuuk Statewide Development Authority was the development authority that corresponded to Congressman Wesley Simina's at-large constituency. These two authorities were created by Chuuk state statutes.
4 Such as plaintiffs Sabino Asor, candidate for Governor, and Takamichy Mori, candidate for lieutenant governor on a different ticket.
5 The other claims on which the plaintiffs move for summary judgment are discussed infra part IV.A.
6 The plaintiffs originally sued Amando Marsolo in both his private capacity and his official capacity as Mayor of Tolensom. After he passed away, he was dismissed in his private capacity since no one moved to substitute anyone for him in that capacity. FSM Civ. R. 25(a)(1). In his official capacity as Mayor of Tolensom, he was automatically replaced by Singeo Marsolo, his successor in that office. FSM Civ. R. 25(d)(1).
7 But the defendants in this case do not, and likely cannot, assert an equal protection claim since the plaintiffs are not governmental entities.
8 When no Micronesian legislative body has addressed the matter and no party suggests that the matter is influenced by customary law, the principles stated in the Restatements of Torts may be considered. Loch v. FSM, 1 FSM R. 566, 570 n.2 (App. 1984).
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