Cite as Kinere v. Kosrae Land Comm'n,13 FSM Intrm. 78 (Kos. S. Ct. Tr. 2004)

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CIVIL ACTION NO. 118-04

Hearing: December 9, 2004
Decided: December 13, 2004

APPEARANCES:

HEADNOTES

Civil Procedure – Dismissal; Civil Procedure – Pleadings; Statutes of Limitation

The statute of limitations is an affirmative defense which must be raised in either the answer or in a motion to dismiss. Kinere v. Kosrae Land Comm'n, 13 FSM Intrm. 78, 80 (Kos. S. Ct. Tr. 2004).

Civil Procedure – Dismissal; Civil Procedure – Motions

When the plaintiff did not file any timely opposition to the defendant's motion to dismiss, the plaintiff's failure to file a memorandum in opposition to the motion to dismiss is deemed a consent to the motion. However, even without opposition, the court still needs good grounds before it can grant

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the motion. Kinere v. Kosrae Land Comm'n, 13 FSM Intrm. 78, 80 (Kos. S. Ct. Tr. 2004).

Property – Land Commission; Statutes of Limitation

A Land Commission determination of ownership is subject to appeal to the Kosrae State Court within 120 days from the date of receipt of notice of the determination. If the determination was not received, then the appeal time limit of 120 days never began to run. Kinere v. Kosrae Land Comm'n, 13 FSM Intrm. 78, 80 (Kos. S. Ct. Tr. 2004).

Statutes of Limitation

Kosrae State Code, Title 6, Chapter 25 establishes three different statutes of limitations which are applicable to specific types of actions: 2 years, 6 years, and 20 years. Most types of actions are subject to the 6 year statute of limitations established by Kosrae State Code § 6.2506. All actions in Kosrae State Court must be commenced within the time period stated in Title 6, Chapter 25. Kinere v. Kosrae Land Comm'n, 13 FSM Intrm. 78, 80 (Kos. S. Ct. Tr. 2004).

Statutes of Limitation

A cause of action accrues when the right to bring suit on a claim is complete. The 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. Kinere v. Kosrae Land Comm'n, 13 FSM Intrm. 78, 81 (Kos. S. Ct. Tr. 2004).

Civil Procedure – Dismissal; Statutes of Limitation

When the allegations made in the complaint are for causes of action that accrued more than seven years ago, and when claims against the Kosrae State Land Commission for violation of statute and violation of due process are subject to a limitations period of six years, the claims based upon Land Commission actions which took place in 1997 are therefore barred by the statute of limitations and defendants Kosrae State Land Commission and Kosrae state government will be dismissed from the action. Kinere v. Kosrae Land Comm'n, 13 FSM Intrm. 78, 81 (Kos. S. Ct. Tr. 2004).

Attorney, Trial Counselor and Client – Attorney Discipline and Sanctions

A counsel's actions in preparing the answer on behalf of a defendant as a pro se litigant, is called "ghostwriting." An attorney's behind-the-scenes document preparation for persons who appear pro se is not viewed favorably by courts. This surreptitious representation results in the litigant representing to the court that he is acting without the assistance of counsel, when this is not true. Importantly, ghostwriting permits an attorney to evade the responsibilities imposed by Rule 11, which requires attorneys to sign documents that they have prepared for filing. Kinere v. Kosrae Land Comm'n, 13 FSM Intrm. 78, 81 (Kos. S. Ct. Tr. 2004).

Attorney, Trial Counselor and Client – Attorney Discipline and Sanctions

The Kosrae State Court considers ghostwriting to constitute unprofessional conduct and disapproves ghostwriting of court documents for pro se litigants by legal counsel admitted to practice law in the State of Kosrae. The practice of ghostwriting prejudices the pro se litigant, who may believe that the counsel will continue to assist him throughout the litigation. Kinere v. Kosrae Land Comm'n, 13 FSM Intrm. 78, 81-82 (Kos. S. Ct. Tr. 2004).

Attorney, Trial Counselor and Client – Attorney Discipline and Sanctions; Civil Procedure – Pleadings

Counsel are put on notice that ghostwriting will be considered a violation of ethical and procedural rules of the Kosrae State Court. Counsel may assist pro se litigants in drafting and filing an answer to a summons and complaint, to avoid the entry of default. In cases where counsel assist pro se litigants with drafting and filing an answer, the answer shall reflect the counsel's limited assistance in preparing the answer, and shall sign the answer in that capacity, along with the signature of the pro

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se litigant. Kinere v. Kosrae Land Comm'n, 13 FSM Intrm. 78, 82 (Kos. S. Ct. Tr. 2004).

COURT'S OPINION

ALIKSA B. ALIKSA, Associate Justice:

Plaintiff filed her Complaint on August 25, 2004. Defendants Kosrae State Land Commission and Kosrae State Government ("State") filed a Motion to Dismiss on September 20, 2004. Defendant Joab P. Sigrah filed his Answer on November 15, 2004. A hearing on the State's Motion was held on December 9, 2004. Snyder Simon appeared for the Plaintiff. Defendant State was represented by Paliknoa Welly. Sasaki George and Canney Palsis of MLSC and Joab P. Sigrah also appeared at the hearing.

I. STATE'S MOTION TO DISMISS.

The Complaint alleges violation of statute and violation of due process by Kosrae State Land Commission. The Complaint alleges that the Land Commission without notice to Plaintiff, improperly issued the Determinations of Ownership for two parcels known as Laas, 042-T-6 and 042-T-7 to "Heirs of Paul Sigrah." Plaintiff claims that she is the sole rightful owner of these two parcels.

Defendant State has filed a timely Motion to Dismiss under KRCP Rule 12. The statute of limitations is an affirmative defense which must be raised in either the answer or in a Motion to Dismiss. Defendant State seeks dismissal of the Complaint against them, claiming that the statute of limitations has lapsed. Defendant State argues that the Plaintiff's remedy was to appeal the decision of the Land Commission, within the 120 days provided by former Kosrae State Code, Section 11.614 (repealed).

Plaintiff did not file any timely opposition to the Defendant's Motion to Dismiss. Plaintiff's failure to file a memorandum in opposition to the Motion to Dismiss is deemed a consent to the Motion. Actuoka v. Etpison, 1 FSM Intrm. 275 (Pon. 1983), Talley v. Talley, 10 FSM Intrm. 570 (Kos. S. Ct. Tr. 2002). However, even without opposition, the Court still needs good grounds before it can grant the Motion. Beal Bank S.S.B. v. Maras, 11 FSM Intrm. 351 (Chk. 2003).

Kosrae State Code, former Section 11.614 sets forth the provisions for appeal of a DO issued by the former Land Commission: "A determination of ownership by the Commission is subject to appeal to the Court within 120 days from the date of receipt of notice of the determination."

Here, it is alleged that the Plaintiff never received notice of the Determination of Ownership for the two subject parcels. Accepting the Plaintiff's alleged facts as true, then the appeal time limit of 120 days never began to run, based upon Plaintiff's non-receipt of the Determinations of Ownership for the subject parcels. Therefore, the appeal time limit of 120 days, as specified in Kosrae State Code, former Section 11.614, does not apply here.

Plaintiff's claims are stated as violation of due process and violation of statute. The statutes of limitations are established by Kosrae State Code, Title 6, Chapter 25. Chapter 25 establishes three different statutes of limitations which are applicable to specific types of actions: 2 years, 6 years and 20 years. Most types of actions are subject to the 6 year statute of limitations established by Kosrae State Code, Section 6.2506. All actions in Kosrae State Court must be commenced within the time period stated in Kosrae State Code, Title 6 Chapter 25. Jonah v. Kosrae, 9 FSM Intrm. 335 (Kos. S.

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Ct. Tr. 2000).

A cause of action accrues when the right to bring suit on a claim is complete. The 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. Skilling v. Kosrae, 9 FSM Intrm. 608 (Kos. S. Ct. Tr. 2000). A cause of action accrues when the right to bring suit to a claim is complete. Kosrae v. Skilling, 11 FSM Intrm. 311 (App. 2003). Here, the cause of action accrued when the Determinations of Ownership were served. See Sigrah v. Kosrae State Land Comm'n, 11 FSM Intrm. 169 (Kos. S. Ct. Tr. 2002). Based upon the allegations made in the Complaint, the Determinations of Ownership for the subject parcels were issued to the Heirs of Paul Sigrah in May 1997. Therefore, the causes of action accrued in May 1997, more than seven years ago.

Claims against the Kosrae State Land Commission for violation of statute and violation of due process are subject to a limitations period of six years. All claims against the Land Commission which are based upon actions which occurred more than six years ago are barred by the statute of limitations and must be dismissed. Sigrah v. Kosrae State Land Comm'n, 11 FSM Intrm. 169 (Kos. S Ct. Tr. 2002). Here, the claims are all based upon actions of the Land Commission which took place in 1997. These actions occurred more than seven years ago and are therefore barred by the statute of limitations. See Skilling v. Kosrae State Land Comm'n, 13 FSM Intrm. 16 (Kos. S. Ct. Tr. 2004).

Based upon the applicable statute limitations period of six years, the Defendant State's Motion to Dismiss Defendants Kosrae State Land Commission and Kosrae State Government is granted. Defendants Kosrae State Land Commission and Kosrae State Government are dismissed from this action. The caption shall be amended to reflect the two remaining Defendants: Joab P. Sigrah and the Heirs of Paul J. Sigrah.

II. REPRESENTATION OF JOAB P. SIGRAH.

The representation of Defendant Joab P. Sigrah was also raised at the hearing. On October 26, 2004, Sasaki George, MLSC, accepted service of the State's Motion to Dismiss, on behalf of Joab P. Sigrah. Mr. George also appeared with Mr Sigrah at the Courthouse to file his answer on November 15, 2004. Review of the answer clearly shows that it was written by legal counsel and not by Defendant Sigrah himself. Yet, when served notice of this hearing, Mr. George informed the Court that he was not counsel for Mr. Sigrah.

Mr. George's actions in preparing the answer on behalf of Defendant Sigrah, as a pro se litigant, is called "ghostwriting." An attorney's behind-the-scenes documentation preparation for persons who appear pro se is not viewed favorably by courts. This surreptitious representation results in the litigant representing to the court that he is acting without the assistance of counsel, when this is not true. Importantly, ghostwriting permits an attorney to evade the responsibilities imposed by KRCP Rule 11, which requires attorneys to sign documents that they have prepared for filing. ANNOTATED MODEL RULES OF PROFESSIONAL CONDUCT, Rule 1.2, Ghostwriting Court Documents for Pro Se Litigants 37 (5th ed. 2003).

This Court has determined that attorney involvement in drafting pro se court documents constitutes unprofessional conduct and is inconsistent with procedural, ethical and substantive rules of court. See Ricotta v. California, 4 F. Supp. 2d 961 (S.D. Cal. 1998); Laremont-Lopez v. Southeastern Tidewater Opportunity Center, 968 F. Supp. 1075 (E.D. Va. 1997). Mr. George has admitted ghostwriting before for pro se litigants in the case of Melander v. Heirs of Tilfas, 13 FSM Intrm. 25 (Kos. S. Ct. Tr. 2004). In that case, this Court held that it considers ghostwriting to constitute unprofessional conduct and that it disapproves ghostwriting of court documents for pro se

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litigants by legal counsel admitted to practice law in the State of Kosrae. The practice of ghostwriting prejudices the pro se litigant, who may believe that the counsel will continue to assist him throughout the litigation.

Accordingly, counsel are put on notice that ghostwriting shall be considered a violation of ethical and procedural rules of this Court. Counsel may however, assist pro se litigants in drafting and filing an answer to a summons and complaint, to avoid the entry of default. In cases where counsel assist pro se litigants with drafting and filing an answer, the answer shall reflect the counsel's limited assistance in preparing the answer, and shall sign the answer in that capacity, along with the signature of the pro se litigant.

Mr. George informed the Court that MLSC policies prohibited him from representing Mr. Sigrah in this matter. Mr. Sigrah accepted this and requested additional time from the Court to find new counsel. Mr. Sigrah request for additional time was granted. A status conference shall be set by the Clerk for the week of January 3, 2005.