CIVIL ACTION NO. 2005-016

For the Plaintiffs:   Daniel J. Berman, Esq.

                                   Sipos & Berman

                                   P.O. Box 1491

                                   Kolonia, Pohnpei   FM   96941

      An opposition to a verified petition to remove is a motion to remand because an opposition to a removal petition, regardless of how it is styled, is actually a motion to remand the case to state court on the ground that it was improvidently removed. Etscheit v. McVey, 13 FSM Intrm. 477, 479 (Pon. 2005).

      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 had waived its right to proceed in the FSM Supreme Court. Etscheit v. McVey, 13 FSM Intrm. 477, 479 (Pon. 2005).

      When no opposition has been filed to a motion, it is generally deemed a consent to the motion, but even if there is no opposition, the court still needs good grounds before it can grant the motion. For a motion to be granted, even if unopposed, it must be well grounded in law and fact, and not interposed for delay. Etscheit v. McVey, 13 FSM Intrm. 477, 479 (Pon. 2005).

      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. Etscheit v. McVey, 13 FSM Intrm. 477, 479 (Pon. 2005).

      To determine whether a case arises under national law, the issue of national law must be an essential element of one or more of the plaintiff’s causes of action, it must be disclosed upon the face of the complaint, unaided by the answer, the petition for removal or any pleadings subsequently filed in the case, it may not be inferred from a defense asserted or one expected to be made, and the issue of national law raised must be a substantial one. Etscheit v. McVey, 13 FSM Intrm. 477, 479 (Pon. 2005).

      When the plaintiffs’ fifth cause of action is expressly entitled "Violation of the FSM Anti-competitive Practices Law" and the text specifically states that it alleges violations of the "Federated States of Micronesia Anti-competitive Practices Act" and cites 32 F.S.M.C. §§ 302-306 twice and when no Pohnpei state law or the Trust Territory predecessor statute is cited, this is thus clearly a cause of action arising under national law. The FSM Supreme Court has jurisdiction over cases arising under national law. Since the issue raised is a substantial one, the case was therefore not improvidently removed from the Pohnpei Supreme Court. Etscheit v. McVey, 13 FSM Intrm. 477, 479-80 (Pon. 2005).

      When the plaintiffs having clearly pled a cause of action arising under national law, they cannot, once the case has been removed to national court, change their minds and say that it was a mistake, that the complaint did not mean what it said, and that instead they really meant to plead a state law cause of action. The court must take the plaintiffs’ pleadings at face value. Etscheit v. McVey, 13 FSM Intrm. 477, 480 (Pon. 2005).

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      No opposition has been filed. Failure to oppose a motion is generally deemed a consent to the motion, FSM Civ. R. 6(d), but even if there is no opposition, the court still needs good grounds before it can grant the motion. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994); Fan Kay Man v. Fananu Mun. Gov’t, 12 FSM Intrm. 492, 495 (Chk. 2004). For a motion to be granted, even if unopposed, it must be well grounded in law and fact, and not interposed for delay. In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 153 (Pon. 1993).

      The plaintiffs assert that the FSM Supreme Court has no subject matter jurisdiction over the case because there is no diversity of citizenship between the parties and there are no claims involving interpretation of national law. The plaintiffs assert that the reference in the their fifth cause of action was not supposed to be a claim under the FSM Anti-Competitive Practices statute but a claim under the similar Pohnpei state law. They also assert that the allegations under their fourth cause of action were generic claims concerning foreign investment statutes and should not be construed to be claims under the FSM foreign investment statutes despite the fact that that cause of action alleges that defendant Erine McVey civilly conspired with [non-party] Tim McVey to "violate the foreign investment laws of the Federated States of Micronesia and Pohnpei State."

      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). To determine whether a case arises under national law, the issue of national law must be an essential element of one or more of the plaintiff’s causes of action, it must be disclosed upon the face of the complaint, unaided by the answer, the petition for removal or any pleadings subsequently filed in the case, it may not be inferred from a defense asserted or one expected to be made, and the issue of national law raised must be a substantial one. David v. San Nicolas, 8 FSM Intrm. 597, 598 (Pon. 1998).

      The plaintiffs’ fifth cause of action is expressly entitled "violation of the fsm anti-competitive practices law" and in the text of that cause of action it specifically states that it alleges violations of the "Federated States of Micronesia Anti-competitive Practices Act" and cites 32 F.S.M.C. §§ 302-306 twice. Complaint at 8. No Pohnpei state law or the Trust Territory predecessor statute is cited. This is thus clearly a cause of action arising under national law. The FSM Supreme Court has jurisdiction over cases arising under national law. FSM Const. art. XI, § 6(b). Since the issue raised is a substantial

one, this case was therefore not improvidently removed from the Pohnpei Supreme Court. The plaintiffs having clearly pled a cause of action arising under national law cannot now change their minds and say that it was a mistake, that the complaint did not mean what it said, and that instead they really meant to plead a state law cause of action. The court must take the plaintiffs’ pleadings at face value. There being no good ground to grant the plaintiffs’ motion, their motion to remand is accordingly denied.

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