FSM SUPREME COURT TRIAL DIVISION
Cite as Saret v. Chuuk
10 FSM Intrm. 320 (Chk. 2001)
 
[10 FSM Intrm. 320]
 
LESLY SARET, ARY KUMOS, MARY CHOLYMAY,JULITA MORI
and all similarly situated employees of
the Chuuk Special Education Program, KENCHYPHILLIP,
INDA MAIPI, CHRISTIAN ANOBAD, and all
similarly situated employees of Chuuk's Substance
Abuse and Mental Health Program, and HELEN
HELDART, ELANOR SOS, ANIUO NIFANG, and
all similarly situated employees of the Department of
Health Services of Chuuk, and all other employees
of the Chuuk State Government who are similarly situated,
all of them as a class,
Plaintiffs,
 
vs.
 
CHUUK STATE GOVERNMENT,
Defendant.
 
CIVIL ACTION NO. 2000-1028
 
ORDER GRANTING PARTIAL SUMMARY JUDGMENT
 
Richard H. Benson
Associate Justice
 
Hearing: March 15, 2001
 
Decided: July 17, 2001
 
APPEARANCES:
 
For the Plaintiffs:                                       Wesley Simina, Esq.
                                                                    P.O. Box 94
                                                                    Weno, Chuuk FM 96942
 
For the Defendant:                                    Ready Johnny, Esq.
                                                                    Acting Attorney General
                                                                    Office of the Chuuk Attorney General
                                                                    P.O. Box 189
                                                                    Weno, Chuuk FM 96942
 
* * * *
 
HEADNOTES
 
Civil Procedure ) Class Actions
     Parties invoking Rule 23 must show that the four prerequisites) numerosity, commonality, typicality, and adequacy of representation ) for a class action have been satisfied. A class action may then be maintained only if the court finds that questions of law or fact that pertain to the class
 
[10 FSM Intrm. 321]
 
members predominate over those questions affecting only individual members and a class action is superior to other available methods for fair and efficient adjudication of the case. Saret v. Chuuk, 10 FSM Intrm. 320, 321 (Chk. 2001).
 
Civil Procedure) Class Actions
     A class action may be maintained only if the class is so numerous that joinder of all members is impracticable. Practicability of joinder depends on the size of the class, ease of identifying numbers and determining their addresses, facility of making service on members joined and their geographic dispersion. Saret v. Chuuk, 10 FSM Intrm. 320, 322 (Chk. 2001).
 
Civil Procedure ) Class Actions
     When the plaintiff class numbers well over a hundred, some of whom reside on outer islands, it is numerous, and may be certified as a class action. Saret v. Chuuk, 10 FSM Intrm. 320, 322 (Chk. 2001).
 
Civil Procedure ) Class Actions
     A Rule 23(c)(2) notice may be directed, in both English and Chuukese, to the members of the class as the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort, by being distributed with the FSM paychecks to class members, read on the radio, and posted at various prominent places where class members might reasonably be expected to see them. Saret v. Chuuk, 10 FSM Intrm. 320, 322 (Chk. 2001).
 
Civil Procedure) Summary Judgment; Public Officers and Employees ) Chuuk
     When the state has not paid plaintiff employees as mandated by its state law and has alleged as affirmative defenses that a supervening cause prevented performance and that funds intended to pay lapsed, frustrating performance, these are defenses of payment, not liability, and the plaintiffs are entitled to judgment as a matter of law, the liability or obligation resting on the public law of the defendant state itself with the affirmative defenses being inadequate as a matter of law as to liability. Saret v. Chuuk, 10 FSM Intrm. 320, 322-23 (Chk. 2001).
 
* * * *
 
COURT'S OPINION
 
RICHARD H. BENSON, Associate Justice:

     This case came before the court pursuant to notice on March 15, 2001 on the issue of whether a class action may be maintained and on the plaintiffs' motion for partial summary judgment. The parties appeared by counsel.

I. Class Action

     Parties invoking Rule 23 must show that the four prerequisites ) numerosity, commonality, typicality, and adequacy of representation ) for a class action have been satisfied. A class action may then be maintained only if the court finds that questions of law or fact that pertain to the class members predominate over those questions affecting only individual members and a class action is superior to other available methods for fair and efficient adjudication of the case. Lavides v. Weilbacher, 7 FSM Intrm. 591, 593 (Pon. 1996). The only factor in doubt in this case was whether the plaintiffs were so numerous that a class action was superior to other available methods.

     At the March 15th hearing, plaintiffs' counsel stated that the plaintiff class might not be so

[10 FSM Intrm. 322]

numerous that joinder of all members was impractical, and requested time to submit an amended complaint which would join as plaintiffs all members of the class who wished to bring the action. The defendant not objecting, the plaintiffs were given until April 20, 2001 to amend the complaint. Upon investigation it was determined that the class was quite numerous (well over 100 persons) and the plaintiffs moved, on April 18, 2001, to continue the action as a class action.

     A class action may be maintained only if the class is so numerous that joinder of all members is impracticable. Practicability of joinder depends on the size of the class, ease of identifying numbers and determining their addresses, facility of making service on members joined and their geographic dispersion. Lavides, 7 FSM Intrm. at 593-94. The class was numerous, well over a hundred, some of whom reside on outer islands. The motion was therefore granted and the plaintiffs were certified as a class under Civil Procedure Rule 23(b)(3).

     It was further ordered that plaintiffs' counsel submit a proposed Rule 23(c)(2) notice, in both English and Chuukese, and suggest how the court may "direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." FSM Civ. R. 23(c)(2). That proposed notice was submitted on June 28, 2001. My July 2, 2001 court order approved the notice and further described the nature of the case and the relief sought. The Chuukese language versions of the July 2nd court order and the Rule 23(c)(2) notice were ordered distributed with the July 4th FSM paychecks to class members, read on V6AK radio, and posted at various prominent places on Weno, Chuuk, where class members might reasonably be expected to see them. No class member has notified the court that he or she elected to withdraw, nor has any class member requested the attorney for the class to be excluded from the class.

II. Summary Judgment

     The parties also presented arguments in support of and in opposition to the motion for summary judgment.

     The pleadings establish the essential facts.

     The plaintiffs are Chuuk state employees who were paid entirely from funds received from the United States through various U.S. federal programs or from the FSM national government. Prior to fiscal year 1998 (October 1, 1997 through September 30, 1998) Chuuk state law mandated a four-day workweek or 64 hour biweekly pay period. This was applicable to all state employees including all of those whose salaries were derived entirely from sources other than Chuuk state funds.

     In September 1998, the Chuuk State Legislature passed Act No. 4-34, which was approved by the acting Governor on September 21, 1998, and was designated Chuuk State Law No. 4-98-36. The statute provided that "The hourly wage schedule of an employee whose salary is paid entirely by funds from the Federated States of Micronesia or any foreign source shall be based on a forty-hour, five-day workweek." Chk. S.L. No. 4-98-36, § 2 (amending Truk S.L. No. 4-59, § 10 as amended by Chk. S.L. No. 3-95-19). The provision was made retroactive as follows, "Upon approval or upon becoming law of this act, the application [of the above relating to the forty-hour workweek], as it relates to employees paid in full from FSM National or any foreign source, shall be retroactive to the beginning of the current fiscal year." Chk. S.L. No. 4-98-36, § 3. Because the act took effect when signed by the Governor on September 21, 1998, id. § 4, this provision makes the law retroactive to October 1, 1997, the start of fiscal year 1998.

     No payments have been made as provided in the foregoing state law.

[10 FSM Intrm. 323]

     The state alleges two affirmative defenses. First, that a supervening cause prevented performance. That is a defense of payment, not liability. Second, that funds intended to pay lapsed, frustrating performance. This defense, too, reaches the issue of payment, not liability.

     No genuine issue as to any material fact is before me, nor has the state raised one. I conclude the plaintiffs are entitled to judgment as a matter of law, the liability or obligation resting on the public law of the defendant state itself and the affirmative defenses being inadequate as a matter of law as to liability. The motion is according granted.

III. Further Proceedings

     There being no just reason for delay the clerk shall enter a final judgment on the issue of the state's liability. The parties shall, by September 28, 2001, complete all discovery as to which persons are owed how much.

* * * *