FSM SUPREME COURT
TRIAL DIVISION
Cite as Enlet v. Bruton,
10 FSM Intrm. 36 (Chuuk 2001)

[10 FSM Intrm. 36]

BEN K. ENLET andIOCHY NGUSUN,
Plaintiffs,

vs.

IROMY K. BRUTON,
Defendant.

CIVIL ACTION NO. 2001-1001

ORDER OF REMAND

Richard H. Benson
Associate Justice

Decided:  February 12, 2001

APPEARANCES:
     For the Plaintiff:     Ben K. Enlet, pro se
                                     P.O. Box 1650
                                     Weno, Chuuk 96942

     For the Defendant:     Craig D. Reffner, Esq.
                                          Law Offices of Fredrick L. Ramp
                                          P.O. Box 1480
                                          Kolonia, Pohnpei 96941

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HEADNOTES
Jurisdiction ) Removal
     After the filing of a removal petition, removal is effected by giving all parties written notice and by filing a copy of the petition with the state court clerk.  Enlet v. Bruton, 10 FSM Intrm. 36, 39 (Chk. 2001).

Jurisdiction ) Removal
     A case that is improvidently removed from a state court must be remanded to that state court.  A case is improvidently removed when it has been removed to the FSM Supreme Court and either the FSM Supreme Court did not have subject-matter jurisdiction over the case at the time of its removal, or the party removing the case has waived its right to proceed in the FSM Supreme Court.  Enlet v. Bruton, 10 FSM Intrm. 36, 39 (Chk. 2001).

Jurisdiction ) Removal
     FSM GCO 1992-2, II(B), similar to 28 U.S.C. 1446(b), states that the removal petition must be filed within sixty days after the receipt by any party, through service or otherwise, of a copy of an initial or amended pleading, motion, order or other paper from which it may first be ascertained that the

[10 FSM Intrm. 37]

case is removable.  Enlet v. Bruton, 10 FSM Intrm. 36, 40 (Chk. 2001).

Constitutional Law ) Case or Dispute
     The FSM Constitution's case or dispute clause is similar to the U.S. Constitution's case or controversy clause, and it has been determined that no significance could be attached to the difference between the terms "controversies" and "disputes."  Enlet v. Bruton, 10 FSM Intrm. 36, 40 (Chk. 2001).

Jurisdiction ) Diversity
     In determining the question of jurisdiction based on the parties' citizenship, the FSM Supreme Court must look only to the parties of record.  Enlet v. Bruton, 10 FSM Intrm. 36, 40 (Chk. 2001).

Jurisdiction ) Diversity; Jurisdiction ) Removal
     When diverse citizenship was not present on the record in a case when it was removed, it cannot be created by the FSM Supreme Court's order when the court lacks the jurisdiction to issue any but procedural orders.  Enlet v. Bruton, 10 FSM Intrm. 36, 40 (Chk. 2001).

Jurisdiction ) Diversity; Jurisdiction ) Removal
     When the FSM Supreme Court does not have subject-matter jurisdiction in a case, it does not have the authority or jurisdiction to issue an order joining a diverse party, and any such order it did issue would be void for want of jurisdiction.  Enlet v. Bruton, 10 FSM Intrm. 36, 40 (Chk. 2001).

Jurisdiction ) Removal
     For the parties' diversity of citizenship or other grounds to be the basis for removal, it must be present at the time the case is removed.  Enlet v. Bruton, 10 FSM Intrm. 36, 40 (Chk. 2001).

Jurisdiction ) National Law
     Determination of whether a case arises under the Constitution, national law, or a treaty is based on the plaintiff's statement of his cause of action, not on whatever defenses that are or that might be raised.  Enlet v. Bruton, 10 FSM Intrm. 36, 40 (Chk. 2001).

Jurisdiction ) Removal
     A state court filing that does not show diverse parties or other basis for FSM Supreme Court jurisdiction is not a paper from which it may be ascertained that the case is removable.  Enlet v. Bruton, 10 FSM Intrm. 36, 40-41 (Chk. 2001).

Jurisdiction ) Removal
     Delay in effecting a case's removal by not filing a copy of the removal petition with the state court clerk until some days after the sixty days had run might prove fatal to the removal.  Enlet v. Bruton, 10 FSM Intrm. 36, 41 (Chk. 2001).

Jurisdiction ) Removal
     Acts taken before a case first becomes removable cannot be the basis for an implied waiver of the right to remove because there is as yet no right to remove to waive.  Enlet v. Bruton, 10 FSM Intrm. 36, 41 (Chk. 2001).

Equity ) Estoppel and Waiver
     Express or implied waiver, to be effective, must be the knowing, intentional and voluntary relinquishment of a known legal right.  Enlet v. Bruton, 10 FSM Intrm. 36, 41 (Chk. 2001).

Jurisdiction ) Removal
     National courts, in removal cases, do not lightly find a waiver of right to invoke its jurisdiction.

[10 FSM Intrm. 38]

Enlet v. Bruton, 10 FSM Intrm. 36, 41 (Chk. 2001).

Jurisdiction ) Removal
     A state court pleading, order, or motion, or amended pleading that is filed much later than the complaint can be a paper "from which it may first be ascertained that the case is removable."  Enlet v. Bruton, 10 FSM Intrm. 36, 41 (Chk. 2001).

Jurisdiction ) Diversity
     A state court joinder of a diverse party does not deprive the state court of jurisdiction, it merely makes its jurisdiction concurrent with the FSM Supreme Court.  Enlet v. Bruton, 10 FSM Intrm. 36, 41 (Chk. 2001).

Jurisdiction ) Removal
     On remand for improvident removal the state court receives the case in the posture (with pending motions) and state it was in the FSM Supreme Court when that court remanded it.  Enlet v. Bruton, 10 FSM Intrm. 36, 41 (Chk. 2001).

Jurisdiction ) Removal
     A party may file a request in the FSM Supreme Court for its just costs incurred by the improvident removal of a case.  Enlet v. Bruton, 10 FSM Intrm. 36, 41 (Chk. 2001).
 
*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This case was removed from Chuuk State Supreme Court.  It having appeared that it may have been improvidently removed from the Chuuk State Supreme Court, that is, that the FSM Supreme Court might not have had subject-matter jurisdiction over this case when it was removed, the parties were invited to submit memorandums on this issue.  The defendant, Iromy K. Bruton, filed her memorandum on February 5, 2001. Plaintiff Ben K. Enlet, the same day, filed an Opposition to Verified Petition for Removal; Alternative Motion to Dismiss Petition, which discussed the same subject.

I.  The Case and its Removal
A.  State Court Case
     This case involves a dispute over the ownership and use of certain tidelands in Truk Lagoon near Sapou village, Polle municipality.  On November 11, 2000, the plaintiffs, Ben K. Enlet and Iochy Ngusun, claiming ownership of these tidelands, filed suit in Chuuk State Supreme Court to prevent defendant Iromy K. Bruton, who also claims ownership, from trespassing and continuing her construction activities in the tidelands. The state court granted a restraining order enjoining Bruton and "his [sic] agents, successors, employees, attorneys, assigns, and all persons acting in concert or cooperation with Defendant or at his [sic] direction" from continuing any construction activity in or entering the tidelands.  Order at 2, CSSC CA No. 238-2000 (Nov. 15, 2000).  Bruton was served with the complaint on November 17, 2000.  Ben K. Enlet, Iochy Ngusun, and Iromy K. Bruton are all Chuukese citizens.

[10 FSM Intrm. 39]

B.  Effecting Removal
     Bruton filed her removal petition in the FSM Supreme Court on January 15, 2001. Removal to this court appears not to have been effected at least until a copy of that petition was filed in the Chuuk State Supreme Court on either January 19, 2001 (by fax) or January 22, 2001 (by hand).  See FSM GCO 1992-2, II(D) (after filing removal petition, removal is effected by giving all parties written notice and by filing a copy of the petition with the state court clerk).  (Enlet's filing indicates that he first obtained the petition from the FSM Supreme Court clerk on or about January 24, 2001.  So it is possible he was not given written notice, and removal not effected, until some time after the state court filing.)

C.  Removal Arguments
     Bruton's asserted basis for removal was that she and her husband were developing an aquaculture business project on the disputed tidelands and that her husband, an American citizen, was thus a necessary party to the action, and together they would assert a counterclaim against the plaintiffs.  This joinder, they asserted, would create diversity of citizenship in the case, and as such, the FSM Supreme Court would have jurisdiction over the matter under FSM Constitution article XI, section 6(b).  Bruton also asserted as a basis for removal her intent to raise due process and civil rights claims "arising under" the FSM Constitution and national law involving the case's handling in state court, over which the FSM Supreme Court could also exercise jurisdiction under article XI, section 6(b).

     Plaintiff Ben K. Enlet, in his opposition and motion contends that for diversity jurisdiction to be present it must exist in the pleadings and not on the possibility that a diverse citizen might later be joined.  Enlet also contends that no civil rights and due process violations have occurred, and that Bruton has not taken the procedural steps in state court that she should have to protect herself from what she alleges are such violations.

II.  Improvident Removal
     A case that is improvidently removed from a state court must be remanded to that state court.  FSM GCO 1992-2, III(C).  A case is improvidently removed when it has been removed to the FSM Supreme Court and either the FSM Supreme Court did not have subject-matter jurisdiction over the case at the time of its removal, or the party removing the case has waived its right to proceed in the FSM Supreme Court.  Id. Bruton contends that the FSM Supreme Court may exercise jurisdiction in a removal case when it is apparent that joinder of another party would give it jurisdiction.  This is not so.

A.  Diversity of Citizenship Jurisdiction
     In her memorandum in support of this contention, Bruton asserts that there is "no exacting requirement in the FSM that an individual, whose presence in the dispute would create diversity in citizenship, be an actual party to the dispute at the time of removal."  Memo. at 6.  Bruton contends that because the FSM Supreme Court may exercise jurisdiction over disputes and the term "disputes" encompasses a far broader meaning than the terms "case" or "civil action" that an asserted fact in a verified removal petition that would establish FSM Supreme Court subject-matter jurisdiction makes the case removable.  Bruton contends that because the plaintiffs knew that she was engaged in a business development with her husband in the tidelands in question, and that restraining her and evicting her would also restrain him and evict him, and that, although he is not named as a party-defendant in the pleadings or specifically named in the restraining order, there exists a real dispute involving parties of diverse citizenship, and as such the case is removable.  In further support of this contention, Bruton asserts that the FSM removal procedures do not contain a provision similar to 28 U.S.C. 1446(b),

[10 FSM Intrm. 40]

which allows a party to remove a case, that on the initial pleading's face, lacks diversity, to do so after it receives an amended pleading, motion, order, or other paper by which the case becomes removable.

     This is not so.  "FSM GCO 1992-2, II(B) is similar to 28 U.S.C. 1446(b)."Porwek v. American Int'l Co. Micronesia, 8 FSM Intrm. 463, 466 n.2 (Chk. 1998). Section II(B) states that the removal petition must "be filed within sixty days after the receipt by any party, through service or otherwise, of a copy of an initial or amended pleading, motion, order or other paper from which it may first be ascertained that the case is removable."  FSM GCO 1992-2, II(B) (emphasis added).

     The FSM Constitution's case or dispute clause is similar to the U.S. Constitution's case or controversy clause, and it has been determined that no significance could be attached to the difference between the terms "controversies" and "disputes."  FSM v. Louis, 9 FSM Intrm. 474, 482 (App. 2000); Hawk v. Pohnpei, 4 FSM Intrm. 85, 91 1 (App. 1989).  In the United States when determining whether there is jurisdiction based on the parties' citizenship, the courts look only to the parties of record.  See, e.g., Joseph Miele Constr. Co. v. City of Niagara Falls, 21 F. Supp. 442, 445 (W.D.N.Y. 1937).  Therefore, in determining the question of jurisdiction based on the parties' citizenship, the FSM Supreme Court must look only to the parties of record.

     Diverse citizenship was not present on the record in this case when it was removed. It cannot be created now by this court's order when this court lacks the jurisdiction to issue any but procedural orders.  When the FSM Supreme Court does not have subject-matter jurisdiction in a case, it does not have the authority or jurisdiction to issue an order joining another party, and any such order it did issue would be void for want of jurisdiction.  For the parties' diversity of citizenship to be the basis for removal, it must be present at the time the case is removed.

B.  Civil Rights and Due Process Jurisdiction
     Likewise, Bruton's civil rights and due process defenses and counterclaims were not present in the case when it was removed.  But more importantly, even if they had been asserted before the case's removal, it still would not have given the FSM Supreme Court jurisdiction over this case because determination of whether a case arises under the Constitution, national law, or a treaty is based on the plaintiff's statement of his cause of action, not on whatever defenses that are or that might be raised.  FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 1, 4 (Chk. 2001); Neimes v. Maeda Constr. Co., 1 FSM Intrm. 47, 48 (Truk 1982); Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152, 29 S. Ct. 42, 53 L. Ed. 126, 127 (1908).  Bruton's national law defenses thus could not constitute a basis for "arising under" the Constitution or national law jurisdiction pursuant to section 6(b).

C.  Time to Effect Removal
     Finally, Bruton contends that she filed her removal petition on when she did because she had to.  January 15, 2001 was sixty days after she received a copy of the complaint and summons in the state court case.  She points to the provision requiring that a removal petition must "be filed within sixty days after the receipt by any party, through service or otherwise, of a copy of an initial or amended pleading, motion, order or other paper from which it may first be ascertained that the case is removable."  FSM GCO 1992-2, II(B).  As discussed above, the state court complaint is not a paper from which it may be ascertained that the case is removable because it did not show diverse parties

[10 FSM Intrm. 41]

or other basis for FSM Supreme Court jurisdiction.  If it had been such a paper, then Bruton's delay in effecting the case's removal (by not filing a copy of the removal petition with the state court clerk until some days after the sixty days had run) might have proven fatal.

     Bruton also suggests that her filing a state court motion to add her husband as an indispensable party would imply that she had availed herself of the state court system and thus waived any right to later remove the case to the FSM Supreme Court.  This is a misconception.  Acts taken before a case first becomes removable cannot be the basis for an implied waiver of the right to remove because there is as yet no right to remove to waive.  Were it otherwise a party would be waiving a right it did not know it had yet.  Express or implied waiver, to be effective, must be the knowing, intentional and voluntary relinquishment of a known legal right.  See Black's Law Dictionary 1574 (7th ed. 1999); Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 481, 483 (App. 1996) (criminal case; waiver of the conflict of an attorney jointly representing codefendants must be shown to have been knowingly, voluntarily and intelligently made).  National courts, in removal cases, do not lightly find a waiver of right to invoke its jurisdiction.  U Corp. v. Salik, 3 FSM Intrm. 389, 394 (Pon. 1988); see also Mendiola v. Berman (I), 6 FSM Intrm. 427, 428 (Pon. 1994) (motion to dismiss filed in state court considered a defense to suit on procedural grounds rather than a consent to state court adjudication of the merits such that waiver of the right to remove could not be implied).

     As it is, a state court pleading, order, or motion, or amended pleading that is filed much later than the complaint could be a paper "from which it may first be ascertained that the case is removable."  Such a paper has not yet, and might never be, filed in the state court case.  Until it has, this case is not removable.  Enlet seems to suggest that the state court could not issue an order joining or allowing the intervention of a diverse party because it would deprive the state court of jurisdiction. That is not so.  A state court joinder of a diverse party does not deprive a state court of jurisdiction, it merely makes its jurisdiction concurrent with the FSM Supreme Court.

III.  On Remand
     After the case's removal, Bruton has filed in this court a motion to enlarge time to respond (which was granted), a notice of errata, oppositions to plaintiffs' preliminary injunction and consolidation motions, an answer with defenses and counterclaim, and a motion to join a necessary party.  A copy of those papers will accompany the transmittal of this remand order to the Chuuk State Supreme Court and will be filed there in CSSC CA No. 238-2000 along with this remand order.  This will allow the state court to expeditiously address all recently-filed pleadings and pending motions.  (On remand the state court receives the case in the posture and state it was in the FSM Supreme Court when that court remanded it.)

IV.  Conclusion
     This case is accordingly remanded to the Chuuk State Supreme Court because it was improvidently removed therefrom.  Enlet may, if it seems advisable, file in this court a request for his just costs incurred because this case was improvidently removed.  FSM GCO 1992-2, III(C).


Footnote:
 
 1. In the Reporter page 91 is inadvertently numbered and printed at page 92, and page 92 is numbered and printed at page 91.  This will, of course, be corrected in future printings of the Reporter.  The citation here is to the correct[ed] page.  (Back to opinion)
 
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