FSM SUPREME COURT TRIAL DIVISION
Cite as Panuelo v. FSM, 22 FSM R. 498 (Pon. 2020)
JANET SEMES PANUELO,
Plaintiff,
vs.
FSM GOVERNMENT, FSM PUBLIC
INFORMATION OFFICE, FSM DEPARTMENT
OF FOREIGN AFFAIRS, FSM CONGRESS,
DAVID PANUELO, and PATRICIA EDWIN,
Defendants.
CIVIL ACTION NO. 2019-025
ORDER DISMISSING CASE
Larry Wentworth
Associate Justice
Hearing: January 16, 2020
Submitted: March 10, 2020
Decided: March 16, 2020
APPEARANCES:
For the Plaintiff:
Marstella E. Jack, Esq.
P.O. Box 2210
Kolonia, Pohnpei FM 96941
For the Defendants:
Abigail J. Avoryie, Esq.
(FSM, PIO, Dep't For.
Assistant Attorney General
Affairs, & Congress)
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
For the Defendants:
Salomon M. Saimon, Esq.
(D. Panuelo & P. Edwin)
P.O. Box 911
Kolonia, Pohnpei FM 96941
* * * *
Civil conspiracy is not an independently actionable tort because it requires the performance of some underlying tortious act, and is a means for establishing vicarious liability for that underlying tort. Panuelo v. FSM, 22 FSM R. 498, 504 (Pon. 2020).
A civil conspiracy cause of action will likely not be dismissed for the failure to state a claim if the complaint also states a claim for one or more of the alleged underlying torts. Panuelo v. FSM, 22 FSM R. 498, 504 (Pon. 2020).
The elements of the cause of action for tortious interference with a contract are 1) a valid contract; 2) the defendant's knowledge of the contract; 3) the defendant's intentional interference which induces breach of the contract; 4) absence of justification on the defendant's part; and 5) resulting damages. Panuelo v. FSM, 22 FSM R. 498, 505 (Pon. 2020).
The tort of interference with contractual or economic relations is a part of the larger body of tort law generally aimed at upholding an individual's right to be secure against harm and interference from others, not only as to their physical integrity, their freedom to move about and their peace of mind, but even to the extent of protecting opportunities for economic gain and for pleasant and advantageous relations with others. Panuelo v. FSM, 22 FSM R. 498, 505 (Pon. 2020).
It is generally recognized that interference with existing contractual relations applies to any type of contract, except a contract to marry – marriage contracts are specifically excluded from the tort of intentional interference with contract. Panuelo v. FSM, 22 FSM R. 498, 505 (Pon. 2020).
A plaintiff cannot sue for tortious interference with a contract when that contract is a marriage contract. Panuelo v. FSM, 22 FSM R. 498, 505, 511 (Pon. 2020).
Rule 12(b)(6) motions to dismiss for failure to state a claim upon which relief can be granted are routinely denied unless it appears to a certainty that no relief could be granted. Panuelo v. FSM, 22 FSM R. 498, 506 (Pon. 2020).
A plaintiff will not be precluded from relief merely because her lawyer has misconceived the claim's proper legal theory. If the complaint shows that the plaintiff is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief, the complaint is sufficient. Panuelo v. FSM, 22 FSM R. 498, 506 (Pon. 2020).
Pohnpei state law provides that the rules of the common law, as expressed in the restatements of the law, shall be the rules of decision in the courts of the state of Pohnpei in applicable cases, in the absence of written law applicable to the state of Pohnpei or applicable local customary law. Panuelo v. FSM, 22 FSM R. 498, 506 (Pon. 2020).
The tort of criminal conversation's odd name comes about because the act is "criminal" in the sense that it was an ecclesiastical crime and it is "conversation" in the sense of intercourse. Generally, the term "criminal conversation," is synonymous with "adultery," but in its more limited and technical sense, it may be defined as adultery in the aspect of tort. Panuelo v. FSM, 22 FSM R. 498, 506 n.2 (Pon. 2020).
A decision of the highest state court about a state law matter is controlling and the FSM Supreme Court will apply it. A state court trial division decision may be deemed not to be controlling if it appears that the highest state court would decide the question differently. If there is no controlling state case law, then the court should decide the case according to how it thinks the highest state court would, and if the state's highest court later decides the issue differently, then that case will prospectively serve as controlling precedent for the national court on that state law issue. Panuelo v. FSM, 22 FSM R. 498, 506-07 n.3 (Pon. 2020).
Under Restatement (Second) of Torts § 683, one who purposely alienates one spouse's affections from the other spouse is subject to liability for the harm thus caused to any of the other spouse's legally protected marital interests, which applies only when the marriage relation exists between the parties at the time of the acts that cause the alienation of affections. Panuelo v. FSM, 22 FSM R. 498, 507 (Pon. 2020).
In reviewing a motion to dismiss, the court must accept the complaint's allegations as true and may grant the motion only if it appears to a certainty that no relief could be granted under any state of facts that could be proven to support the claim. Panuelo v. FSM, 22 FSM R. 498, 507 (Pon. 2020).
Restatement (Second) of Torts § 684(2) encompasses what was known at common law as "enticement," and under it one who for the purpose of disrupting the marital relation induces one spouse to separate from the other spouse or not to return after being separated, is subject to the liability for the harm thus caused to any of the aggrieved spouse's legally protected marital interests. The tort of enticement is often considered a variety of the alienation of affections tort. The actor is liable only for a separation that results from the actor's conduct. Panuelo v. FSM, 22 FSM R. 498, 507 (Pon. 2020).
Under Restatement (Second) of Torts § 685, one who has sexual intercourse with one spouse is subject to liability to the other spouse for the harm thus caused to any of the other spouse's legally protected marital interests. Under this rule, although knowledge or belief that a person is married is essential to liability for alienation of affections under the § 683 rule, neither knowledge nor belief is necessary to liability under § 685. One who has sexual relations with a married person takes the risk that he or she is married to another. The fact that the spouse misrepresents the marital status is not a defense. Panuelo v. FSM, 22 FSM R. 498, 508 (Pon. 2020).
Some authorities consider these three common law torts – alienation of affections [Restatement § 683], enticement [Restatement § 684(2)], and criminal conversation [Restatement § 685] – to really be one tort – interference with marriage relation, and that they are just three means by which the interference with marriage relation tort may be accomplished. Panuelo v. FSM, 22 FSM R. 498, 508
(Pon. 2020).
The alienation of affections, enticement, and criminal conversation torts are novel questions of Pohnpei state law, and these torts have been abolished in many common law jurisdictions, but are still viable in a number of common law jurisdictions. Panuelo v. FSM, 22 FSM R. 498, 509 (Pon. 2020).
Recovery for intentional infliction of emotional distress requires conduct that is extreme and outrageous, and this tort is sharply limited and applies only in the most egregious circumstances. One element of an intentional infliction of emotional distress claim is that the plaintiff must have suffered some physical manifestation of the alleged infliction of emotional distress, and when there is no evidence in the record of physical injury to the plaintiff or of any physical manifestation of the emotional distress by the plaintiff, her claim must fail and the emotional distress cause of action must be dismissed. Panuelo v. FSM, 22 FSM R. 498, 509 (Pon. 2020).
The failure to allege an essential element of a cause of action means that that cause of action will not survive a Rule 12(b)(6) motion to dismiss for the failure to state a claim for which the court can grant relief. Panuelo v. FSM, 22 FSM R. 498, 509 (Pon. 2020).
When a plaintiff did not allege that her humiliation or emotional distress caused her any physical manifestation, she did not allege an essential element of the tort, and the court must dismiss this claim for the failure to state a claim for which it can grant relief. Panuelo v. FSM, 22 FSM R. 498, 509-10, 512 (Pon. 2020).
Libel is written or visual defamation and slander is oral or aural defamation. Panuelo v. FSM, 22 FSM R. 498, 510 (Pon. 2020).
When the movants seek to dismiss a slander cause of action for the failure to state a claim and their ground is a factual defense, the court, accepting the plaintiff's factual allegations as true and the inferences drawn therefrom in her favor, cannot dismiss that cause of action on that ground. Panuelo v. FSM, 22 FSM R. 498, 510 (Pon. 2020).
Congress may discipline, suspend, or expel a member. Panuelo v. FSM, 22 FSM R. 498, 510-11 (Pon. 2020).
Whether Congress should discipline, or should have disciplined, a member is nonjusticiable – it is a political question that is beyond the court's power or authority. This is because when there is in the Constitution a textually demonstrable commitment of an issue to a coordinate branch of government, it is a nonjusticiable political question not to be decided by a court because of the separation of powers provided for in the Constitution, and the question of disciplining Congress members is textually and demonstrably committed to a coordinate branch of government – Congress itself. Panuelo v. FSM, 22 FSM R. 498, 511 (Pon. 2020).
Congress may discipline a member, and may suspend or expel a member. Since "may" is a term that usually denotes discretion, the Constitution thus gives Congress the discretion to decide when, or if, and under what circumstances, it will discipline a member. Panuelo v. FSM, 22 FSM R. 498, 511 (Pon. 2020).
The decision whether to discipline a member is a nonjusticiable political question left to Congress's discretion. Panuelo v. FSM, 22 FSM R. 498, 511 (Pon. 2020).
Alienation of affections, enticement, and criminal conversation do not appear to be torts that could be committed by an actor other than a natural person. Panuelo v. FSM, 22 FSM R. 498,511-12 (Pon. 2020).
An action for the alienation of affections lies only against one who produced and brought about or caused an alienation of the affections of the plaintiff's spouse. Panuelo v. FSM, 22 FSM R. 498, 512 (Pon. 2020).
The "office" of First Lady is not a constitutional office. Nor is it an office created by statute. It is not an office for which a writ of quo warranto will lie to determine the right to hold the office. It is a title that is, or has been, customarily bestowed on or used to honor the President's wife, who is then expected to perform varied social and diplomatic functions on the President's or the nation's behalf. But the person acting as the First Lady would not necessarily be the President's wife. Panuelo v. FSM, 22 FSM R. 498, 512-13 (Pon. 2020).
The Constitution generally confers original and exclusive jurisdiction over cases to which the national government is a party on the FSM Supreme Court trial division. The FSM Supreme Court also has pendent jurisdiction over state law claims whenever the Constitution or national law confers subject matter jurisdiction on the court and those state law claims arise from the same nucleus of operative fact as the claims under national jurisdiction and are such that they would be expected to be tried in the same judicial proceeding. Panuelo v. FSM, 22 FSM R. 498, 513 (Pon. 2020).
When, before the defendants have even answered, the FSM Supreme Court dismisses, for the failure to state claims on which the court can grant relief, all of the claims that confer subject matter jurisdiction on the FSM Supreme Court, and all the causes of action that remain are the pendent state law claims, the court should dismiss the rest of the complaint without prejudice and allow the state law claims to proceed in state court. Panuelo v. FSM, 22 FSM R. 498, 513 (Pon. 2020).
The FSM Supreme Court should consider and weigh in each pendent jurisdiction case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent law state-law claims. When the balance of these factors indicates that a case properly belongs in state court, as when the national-law claims have dropped out of the lawsuit at its early stages and only state-law claims remain, the national court should decline to exercise jurisdiction by dismissing the case without prejudice. The doctrine of pendent jurisdiction thus is a doctrine of flexibility. When the national law
claims must all be dismissed, it may be an abuse of discretion to take pendent jurisdiction of a claim that depends on novel questions of state law. Panuelo v. FSM, 22 FSM R. 498, 513-14 (Pon. 2020).
* * * *
LARRY WENTWORTH, Associate Justice:
On January 16, 2020, the court heard: 1) Motion to Dismiss Complaint for the Failure to State a Claim, filed on December 23, 2019, by David Panuelo and Patricia Edwin; 2) Motion to Dismiss, filed on December 23, 2019, by the FSM Government, the FSM Public Information Office, the FSM Department of Foreign Affairs, and the FSM Congress; 3) Opposition to Defendants FSM Government, FSM Public Information Office, FSM Department of Foreign Affairs, and FSM Congress Motion to Dismiss, filed January 9, 2020; 4) Opposition to Defendants' David Panuelo and Patricia Edwin's Motion to Dismiss, filed January 9, 2020; and 5) Supplement to Defendants Panuelo and Edwin's Motion to Dismiss, filed January 13, 2020.
At the hearing's start, the court granted Janet Semes Panuelo's motion to enlarge time by two business days for her to file her oppositions to the two motions to dismiss, thus making those oppositions timely filed, and denied David Panuelo's and Patricia Edwin's motion to strike her opposition. At the hearing's end, the court, since the December 3, 2019 complaint's factual allegations appeared to state a common law cause of action for alienation of affections, asked the parties to brief whether the Pohnpei Code, Title One, § 1-123 allowed or required the court to apply the Restatement (Second) of Torts § 683-692, or any other Restatement section to this action.
The FSM Government, the FSM Public Information Office, the FSM Department of Foreign Affairs, and the FSM Congress (the "government defendants") filed their brief on February 6, 2020. Defendants David Panuelo and Patricia Edwin filed theirs on February 11, 2020. The plaintiff, Janet Semes Panuelo, filed her brief on March 10, 2020. The court then considered the motions to be submitted to it for its decision.
The claims against the government defendants are all dismissed. Those against Congress are dismissed with prejudice. The claims against David Panuelo and Patricia Edwin are generally dismissed without prejudice. The court's reasoning follows.
On January 21, 1989, David Panuelo and Janet Semes Panuelo were married according to the rite of the Roman Catholic Church. They had five children, only one of which is still a minor.
In 2015, David Panuelo was elected to Congress. And, also about four years ago, David Panuelo left Janet Semes Panuelo. Janet Semes Panuelo contends that this occurred because Patricia Edwin enticed David Panuelo away from her, and that those two then entered an adulterous or a bigamous relationship. David Panuelo contends that this was done pursuant to recognized Pohnpeian customary law and was a customary divorce, after which he met Patricia Edwin.
In 2019, David Panuelo was reelected to Congress and Congress then elected him President. Patricia Edwin held the Bible for David Panuelo when he was sworn in as the nation's current President. David Panuelo holds Patricia Edwin out to be his spouse, and as such, he and various national government entities have treated Patricia Edwin as the nation's First Lady. In that capacity, Patricia
Edwin accompanied David Panuelo on several overseas official trips, participated in other official events, and the FSM Public Information Office reported Patricia Edwin as doing so as First Lady, even though Janet Semes Panuelo had asked that office to refrain from making such reports and to retract its previous releases. And, according to Janet Semes Panuelo, Patricia Edwin also told others that she, and not Janet Semes Panuelo, is David Panuelo's wife and First Lady.
On December 3, 2019, Janet Semes Panuelo filed this suit in the FSM Supreme Court against the FSM Government, the FSM Public Information Office, the FSM Department of Foreign Affairs, the FSM Congress, David Panuelo, and Patricia Edwin. Janet Semes Panuelo contends that she is still David Panuelo's legal spouse, and that therefore she is also the nation's First Lady. She alleges that she has been economically damaged in excess of $50,000 by [first cause of action] a civil conspiracy; [second] the tortious interference with a marriage contract (by Patricia Edwin); [third] the intentional infliction of emotional distress (by Patricia Edwin); [fourth] the tortious interference with a marriage contract (by all defendants); [fifth] the intentional infliction of emotional distress (by all defendants); and [sixth] slander (by Patricia Edwin).
On December 23, 2019,1 David Panuelo and Patricia Edwin filed their motion to dismiss this action because, under Pohnpeian customary law, David Panuelo was divorced from Janet Semes Panuelo, and the government defendants filed their motion to dismiss this action because they did not owe Janet Semes Panuelo any duty on which she could base her action. Both motions to dismiss were made under Civil Procedure Rule 12(b)(6), and assert that the complaint fails to state any claims for which the court can grant relief.
A. David Panuelo's and Patricia Edwin's Motion to Dismiss
1. Civil Conspiracy
Janet Semes Panuelo alleges that the defendants are liable to her for civil conspiracy. But civil conspiracy is not an independently actionable tort because it requires the performance of some underlying tortious act, and is a means for establishing vicarious liability for that underlying tort. Mori v. Hasiguchi, 19 FSM R. 222, 226 (Chk. 2013); Ehsa v. Kinkatsukyo, 16 FSM R. 450, 457 (Pon. 2009).
Thus, the civil conspiracy cause of action will likely not be dismissed for the failure to state a claim if the complaint states a claim for one or more of the alleged underlying torts – tortious interference with a marriage contract, intentional infliction of emotional distress, or slander. Put another way, if any of Janet Semes Panuelo's other tort claims survive dismissal, then the civil conspiracy tort claim will probably also survive.
2. Tortious Interference with a [Marriage] Contract
a. Whether this Tort Applies to Marriage Contracts
Janet Semes Panuelo alleges that Patricia Edwin tortiously interfered with her marriage contract with David Panuelo by enticing him away from her. She premises Patricia Edwin's liability on case law imposing tort liability on parties interfering with existing contractual relations.
The elements of the cause of action for tortious interference with a contract are 1) a valid contract; 2) the defendant's knowledge of the contract; 3) the defendant's intentional interference which induces breach of the contract; 4) absence of justification on the defendant's part; and 5) resulting damages. Santos v. Pohnpei, 21 FSM R. 495, 499 (Pon. 2018); Salomon v. Mendiola, 20 FSM R. 138, 141 (Pon. 2015); Jano v. Fujita, 16 FSM R. 502, 504 (Pon. 2009); Ehsa v. Kinkatsukyo, 16 FSM R. 450, 457 (Pon. 2009); Jano v. Fujita, 16 FSM R. 323, 327 (Pon. 2009). The movants contend that this tort applies only to commercial or business contracts, that are economic in nature, and not to marriage contracts. To counter this, Janet Semes Panuelo relies on case law that she asserts expands the tort to include all contracts, including marriage contracts:
This tort of interference with contractual or economic relations, then, is a part of the larger body of tort law generally aimed at upholding the right of individuals to be secure against harm and interference from others, not only as to their physical integrity, their freedom to move about and their peace of mind, but even to the extent of protecting opportunities for economic gain, and for pleasant and advantageous relations with others.
Federated Shipping Co. v. Ponape Transfer & Storage Co., 4 FSM R. 3, 14 (Pon. 1989) (citing W. KEETON, D. DOBBS, R. KEETON, D. OWEN, PROSSER AND KEETON ON TORTS § 3, at 16 (5th ed. 1984)). Janet Semes Panuelo further asserts that Patricia Edwin's tortious interference in her marriage to David Panuelo deprived her of access to economic advantages and economic gain she would otherwise have continued to enjoy. She therefore argues that this tort includes interference with existing marriage contracts.
The court cannot agree. "It is generally recognized that interference with existing contractual relations applies to any type of contract, except a contract to marry." 4 J.D. LEE & BARRY A. LINDAHL, MODERN TORT LAW § 45.03, at 22 (rev. ed. 1990). In Frankel v. Warwick Hotel, 881 F. Supp. 183 (E.D. Pa. 1995), the plaintiff, who was terminated from his employment because he refused to divorce his wife, could not recover damages for the intentional interference in his marriage because marriage contracts are specifically excluded from the tort of intentional interference with contract. Id. at 188 (citing RESTATEMENT (SECOND) OF TORTS § 766 (1977)). And, in Panis v. Mission Hills Bank, N.A., 1993 WL 390399 (D. Kan. 1993), the plaintiff could not amend her complaint to add a claim for tortious interference with the "contract of marriage" because Kansas "follow[ed] the traditional common law principles for tortious interference with contract" and under those principles, "contracts of marriage are not subject to claims for tortious interference." Id. at 2 (emphasis in original) (citing RESTATEMENT (SECOND) OF TORTS § 766 (1977)). The Panis court noted that the Restatement explicitly excluded marriage contracts from a tortious interference with a contract claim and also noted that, since the plaintiff remained married to her spouse, her marriage contract had not been breached. Id.
Accordingly, the court must conclude that a plaintiff cannot sue for tortious interference with a contract when that contract is a marriage contract. This, however, does not end the analysis.
b. Other Legal Theories
The standard is that Rule 12(b)(6) motions to dismiss for failure to state a claim upon which relief can be granted are routinely denied unless it appears to a certainty that no relief could be granted. People of Eauripik ex rel. Sarongelfeg v. Osprey Underwriting Agency, Ltd., 21 FSM R. 214, 233 (App. 2017). Thus,
a plaintiff will not be precluded from relief merely because her lawyer has misconceived the claim's proper legal theory. If the complaint shows that the plaintiff is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief, the complaint is sufficient.
Setik v. Mendiola, 21 FSM R. 537, 555 (App. 2018) (citing Semwen v. Seaward Holdings, Micronesia, 7 FSM R. 111, 114 (Chk. 1995)). The court, thus, sought briefing about other possible legal theories that, taking Janet Semes Panuelo's factual allegations as true and viewing them in the light most favorable to her, might entitle her to relief.
In particular, the court sought briefing on the theories found in the Restatement (Second) of Torts §§ 683-692 (Direct Interference with Marriage Relation), or any other Restatement section that could apply to this case. That was because the court noted that Pohnpei state law provides that:
The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute and, to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the state of Pohnpei in applicable cases, in the absence of written law applicable to the state of Pohnpei or local customary law applicable under section § 1-122 to the contrary and except as otherwise provided in § 1-124; PROVIDED, that no person shall be subject to criminal prosecution except under the written laws of the state of Pohnpei or recognized local customary law not inconsistent therewith.
1 Pon. C. § 1-123. The Pohnpei Supreme Court has, on occasion, heeded this statute's call. See Koike v. Ponape Rock Products, Inc., 3 FSM R. 57, 64 (Pon. S. Ct. Tr. 1986) (welcoming counsels' arguments to take "into account the common law of torts as developed in the United States and printed in the Restatement (Second) of Torts").
Turning to the Restatement (Second) of Torts for any causes of action that seem consistent with Janet Semes Panuelo's factual allegations, the court notes two or three possibilities – Alienation of Spouse's Affections [§ 683]; Causing One Spouse to Separate From or Refuse to Return to the Other Spouse [§ 684(2)]; and the oddly-named Criminal Conversation2 With a Spouse [§ 685]. No one has cited any Pohnpei Supreme Court case, in either the trial or appellate divisions,3 that either adopts or
rejects any of these three torts. The court will thus examine them in turn.
i. Alienation of Affections [§ 683]
Restatement Section 683 states that "[o]ne who purposely alienates one spouse's affections from the other spouse is subject to liability for the harm thus caused to any of the other spouse's legally protected marital interests." Janet Semes Panuelo's allegations – that Patricia Edwin enticed her spouse, David Panuelo, away from her and thereby caused her harm – satisfy all of this tort's elements.
David Panuelo and Patricia Edwin contend that Janet Semes Panuelo cannot prevail under this rule because for her to recover she would have had to have been in an existing marriage with David Panuelo, but David Panuelo was already divorced from her under Pohnpeian customary law before he met Patricia Edwin. This is because "Section [683] applies only when the marriage relation exists between the parties at the time of the acts that cause the alienation of affections." RESTATEMENT (SECOND) OF TORTS § 683, cmt. l (1977).
In reviewing a motion to dismiss, the court must accept the complaint's allegations as true and may grant the motion only if it appears to a certainty that no relief could be granted under any state of facts that could be proven to support the claim. Damarlane v. U Mun. Gov't, 18 FSM R. 96, 99 (Pon. 2011). While an existing marriage is necessary for an alienation of affections claim to succeed, the court, for the purposes of this motion to dismiss, must accept as true Janet Semes Panuelo's allegation that there was an existing marriage between her and David Panuelo when Patricia Edwin "enticed" him away from her. The court thus cannot grant a dismissal for the failure to state a claim on that basis.
ii. Enticement [– 684(2)]
Restatement "Section 684(2) encompasses what was known at common law as enticement." Belles v. Warner, 1982 WL 2870, at 2 (Ohio Ct. App. 1982). Section 684(2) states that "[o]ne who for the purpose of disrupting the marital relation induces one spouse to separate from the other spouse or not to return after being separated, is subject to the liability stated in Subsection (1)." RESTATEMENT (SECOND) OF TORTS § 684(2) (1977). The liability stated in Subsection (1) is "for the harm thus caused to any of the latter's [the aggrieved spouse's] legally protected marital interests." Id. § 684(1). Often this tort is considered a variety of the alienation of affections tort. See, e.g., Haskins v. Bias, 441 N.E.2d 842, 843 (Ohio Ct. App. 1981) ("tort of enticement was treated as subsumed by the tort of alienation of affections"). Under this rule,
When the defendant merely persuades or induces one spouse voluntarily to separate from or not return to the other spouse, the defendant is subject to liability . . . only if the acts have been directed at the marital relation and committed for the purpose of disrupting it. There is no liability if the defendant acts for another purpose, even though it is with knowledge that the inducement will result in the separation of the spouses.
RESTATEMENT (SECOND) OF TORTS § 684, cmt. f (1977). Janet Semes Panuelo's allegations satisfy the § 684(2).
And again, David Panuelo and Patricia Edwin contend that Patricia Edwin's acts could not have induced David Panuelo to leave his marriage to Janet Semes Panuelo because he had already left her and was divorced under custom when Patricia Edwin acted. Under § 684, "the actor is liable only for a separation that results from the actor's conduct. If it appears that the acts did not influence one spouse to leave or not to return to the other spouse, there is no liability." Id. cmt. g. But, taking as true for the purpose of the motions to dismiss Janet Semes Panuelo's allegations that Patricia Edwin enticed David Panuelo away from her, the court must deny David Panuelo's and Patricia Edwin's motion to dismiss for the failure to state a claim.
iii. Criminal Conversation [§ 685]
Section 685 states that "[o]ne who has sexual intercourse with one spouse is subject to liability to the other spouse for the harm thus caused to any of the other spouse's legally protected marital interests." Under this rule,
Although knowledge or belief that a person is married is essential to liability for alienation of affections under the rule stated in § 683, neither knowledge nor belief is necessary to liability under the rule stated in this Section. One who has sexual relations with a married person takes the risk that he or she is married to another. The fact that the spouse misrepresents the marital status is not a defense.
RESTATEMENT (SECOND) OF TORTS § 685, cmt. f (1977). Once more, taking as true Janet Semes Panuelo's allegations – that she was married to David Panuelo when Patricia Edwin enticed him away and is still married to him and that those two entered an adulterous relationship – the allegations state a claim for which relief could be granted under this Restatement rule.
c. Result
Accordingly, even though Janet Semes Panuelo's legal theory for her second cause of action is deficient as a matter of law, the court cannot dismiss this claim against Patricia Edwin for the failure to state a claim because there are other legal theories on which Janet Semes Panuelo could conceivably prevail on the same factual claims or allegations. The court further notes that some authorities consider these three common law torts – alienation of affections [Restatement § 683], enticement [Restatement § 684(2)], and criminal conversation [Restatement § 685] – to really be one tort – interference with marriage relation, and that they are just three means by which the interference with marriage relation tort may be accomplished. Skaggs v. Stanton, 532 S.W.2d 442, 443 (Ky. 1975) ("[T]he tort is interference with marriage relation and that criminal conversation, enticement and alienation of affections are no more than methods by which this tort may be committed."); see also Lynn v. Shaw, 620 P.2d 899, 901 (Okla. 1980).
Criminal conversation, enticement and alienation of affections still are often treated as separate torts, but there is no good reason for distinguishing them. They represent three forms of interference with the same relational interest, and of course all three may be present in the same case. . . . There is now a decided tendency to confuse the three, or lump them together, usually under the general name of "alienation of affections," without any attempt to distinguish the possible elements of the tort.
WILLIAM L. PROSSER, THE LAW OF TORTS § 124, at 876-77 (4th ed. 1971) (footnote omitted).
In her brief, Janet Semes Panuelo acknowledges that these Restatement (Second) of Torts sections [§§ 683-692] faithfully express, explain, and support her claims, and she is willing to have her action proceed under them and points to comment b to § 690 of the Restatement of Torts for the form of relief and damages she seeks.4 She further maintains that they are consistent with the Pohnpeian concept of justice.
The court does not hereby rule that these other legal theories are definitely available torts under Pohnpei state law. It only rules that, at this early stage in the litigation, it appears to the court that one or more of these may be available to Janet Semes Panuelo under Pohnpei state law. The court notes that these are novel questions of Pohnpei state law. The court is aware, as the movants point out, that these torts have been abolished by statute (or sometimes by court decision) in most United States jurisdictions. The court is also aware that these actions are, as Janet Semes Panuelo points out, still viable in a number of common law jurisdictions. See, e.g., Malecek v. Williams, 804 S.E.2d 592 (N.C. Ct. App. 2017) (actions for alienation of affections and criminal conversation held not unconstitutional). The court is not aware of any Pohnpei statute, or any Pohnpei Supreme Court decision, that either abolishes or adopts these causes of action in Pohnpei.
3. Intentional Infliction of Emotional Distress
Janet Semes Panuelo alleges that David Panuelo and Patricia Edwin intentionally inflicted emotional distress on her by having Patricia Edwin hold the Bible for David Panuelo to be sworn in as President, with the false pretense that Patricia Edwin is David Panuelo's legal spouse, thereby causing Janet Semes Panuelo unbearable humiliation and unprecedented emotional pain and distress.
Recovery for intentional infliction of emotional distress requires conduct that is extreme and outrageous, and this tort is sharply limited and applies only in the most egregious circumstances. Luzama v. Mai Xong, Inc., 22 FSM R. 23, 32 (Pon. 2018); Solomon v. FSM, 20 FSM R. 396, 403 (Pon. 2016). One element of an intentional infliction of emotional distress claim is that the plaintiff must have suffered some physical manifestation of the alleged infliction of emotional distress, and when there is no evidence in the record of physical injury to the plaintiff or of any physical manifestation of the emotional distress by the plaintiff, her claim must fail and the emotional distress cause of action must be dismissed. Luzama, 22 FSM R. at 32; Palasko v. Pohnpei, 21 FSM R. 562, 565 (Pon. 2018); Poll v. Victor, 18 FSM R. 235, 246 (Pon. 2012); Berman v. Pohnpei, 16 FSM R. 567, 577 (Pon. 2009).
That element was not pled. Janet Semes Panuelo does not allege that she suffered any physical manifestation of her emotional distress. She only alleges that she was extremely humiliated and very distressed. The failure to allege an essential element of a cause of action means that that cause of action will not survive a Rule 12(b)(6) motion to dismiss for the failure to state a claim for which the court can grant relief. Adams v. Island Homes Constr., Inc., 11 FSM R. 445, 449 (Pon. 2003). Since she did not allege that her humiliation or emotional distress caused her any physical manifestation, she did not allege an essential element of the tort, and the court must dismiss this claim for the failure to
state a claim for which it can grant relief.5
4. Slander
It is unclear whether Janet Semes Panuelo's sixth cause of action – slander – was intended to be brought just against Patricia Edwin or includes others. In it, Janet Semes Panuelo alleges that Patricia Edwin stated to some of Janet Semes Panuelo's acquaintances that Patricia Edwin was David Panuelo's wife and FSM First Lady and accused Janet Semes Panuelo of being a bad wife or spouse to David Panuelo. Since libel is written or visual defamation and slander is oral or aural defamation, Zacchini v. Hainrick, 19 FSM R. 403, 411 n.1 (Pon. 2014); Peniknos v. Nakasone, 18 FSM R. 470, 485 (Pon. 2012); FSM v. GMP Hawaii, Inc., 16 FSM R. 479, 485 (Pon. 2009), and only Patricia Edwin is alleged to have made actionable oral statements, it seems that this claim is directed only against her. But Janet Semes Panuelo further alleges that Patricia Edwin's "[s]tatement was part of a plan by the defendants to discredit and impugn the good name, reputation and integrity of [Janet Semes Panuelo]'s marriage relationship to her husband, David W. Panuelo." Compl. para. 52 (Dec. 3, 2019).
Again, the movants seek to dismiss this cause of action on the ground that David Panuelo is, in fact, divorced from Janet Semes Panuelo, married to Patricia Edwin, and that Patricia Edwin is therefore the First lady. This ground is a factual defense. Zacchini, 19 FSM R. at 413 (truth is an absolute bar to a defamation claim). But these are material facts that are in dispute. And this defense concerning David Panuelo's current marital status, would not cover Patricia Edwin's alleged statement that Janet Semes Panuelo had been a bad wife to David Panuelo. Therefore, accepting Janet Semes Panuelo's factual allegations as true and the inferences drawn therefrom in her favor, the court cannot dismiss the slander cause of action against Patricia Edwin for the failure to state a claim.
B. The Government Defendants' Motion to Dismiss
The government defendants move to dismiss the complaint because, in their view, it fails to state claims for which relief can be granted against them because they do not have a duty, in either law or equity, to prevent or correct the President's statements about his marital status or to police his private life. Janet Semes Panuelo contends that there is such a duty or responsibility, at least as far as Congress is concerned. She further asserts that her causes of action were adequately pled and that the movants downplay the seriousness of her emotional distress.
1. Claims Against Congress
Janet Semes Panuelo predicates Congress's liability on her assertion that Congress should have, or was required to, discipline (or perhaps even suspend or expel) David Panuelo for his allegedly adulterous actions and behavior when he was a Congress member, but Congress failed to do so. She contends that, while in some circumstances it may generally be true that the government defendants do not have a duty to police David Panuelo's private life, it does not follow that Congress is wholly without some kind of duty or responsibility to ensure that its own members' actions do not undermine the integrity of Congress and the FSM Government. She refers the court to the constitutional provision about Congress's power to discipline its members.
The Constitution provides that "Congress shall be the sole judge of the elections and
qualifications of its members, may discipline a member, and, by ⅔ vote, may suspend or expel a member." FSM Const. art. IX, § 17(a). Janet Semes Panuelo asserts that, under this provision, Congress had a duty, when David Panuelo was a Congressman, to discipline him for his alleged misbehavior or misconduct because his actions were not in Congress's or the national government's best interests.
Whether Congress should discipline, or should have disciplined, a member is nonjusticiable – it is a political question that is beyond the court's power or authority.6 This is because "[w]hen there is in the Constitution a textually demonstrable commitment of an issue to a coordinate branch of government . . . it is a nonjusticiable political question not to be decided by a court because of the separation of powers provided for in the Constitution." Pohnpei v. AHPW, Inc., 14 FSM R. 1, 16-17 (App. 2006); see also Pacific Foods & Servs., Inc. v. National Oceanic Res. Mgt. Auth., 17 FSM R. 181, 186 (Pon. 2010). The question of disciplining Congress members is textually and demonstrably committed to a coordinate branch of government – Congress itself. This is also true for the opening clause of Section 17(a) – the appellate court has previously held that the Section 17(a) clause making Congress "the sole judge of the elections and qualifications of its members" involves a nonjusticiable political question that cannot be decided by a court. Aten v. National Election Comm'r (III), 6 FSM R. 143, 145 (App. 1993); see also Christian v. Urusemal, 14 FSM R. 291, 294 (App. 2006).
Furthermore, Section 17(a) states that Congress "may discipline a member, and . . . may suspend or expel a member," not that it must do so in any particular instance. "May" is a term that usually denotes discretion. The Constitution thus gives Congress the discretion – Congress may – to decide when, or if, and under what circumstances, it will discipline a member. The Constitution does not require Congress to discipline any member for any particular action or inaction. The court concludes that the decision whether to discipline a member is also a nonjusticiable political question left to Congress's discretion. Congress was therefore not required to discipline David Panuelo for any of his alleged misconduct.
Congress owes no other person or entity (except, of course, the voters) a duty to discipline its own members. It cannot be held liable to any other person or entity for failing to discipline one of its members. Therefore, Janet Semes Panuelo does not state any claim against Congress that would entitle her to be granted any relief. The claims against Congress are therefore dismissed with prejudice.
2. Claims Against Other Government Defendants
The other government defendants, the FSM Government, the FSM Public Information Office, and the FSM Department of Foreign Affairs, also claim that, since they owe no duty to Janet Semes Panuelo to police the President's private life, her complaint fails to state a claim against them.
a. Tortious Interference with a Marriage Contract
As stated above in part II.A.2, a tortious interference with a contract allegation is not a claim upon which the court can grant relief, if the contract allegedly interfered with tortiously, is a marriage contract. The alternative legal theories under which Patricia Edwin might be held liable for this cause of action – alienation of affections, enticement, or criminal conversation – are for events that occurred, or mostly occurred, well before David Panuelo became President. They do not appear to be torts that
could be committed by an actor other than a natural person. In any event, Janet Semes Panuelo does not allege that these government defendants committed any wrongful act that led to Patricia Edwin's alleged alienation of David Panuelo's affections or to her enticement of David Panuelo away from Janet Semes Panuelo. Janet Semes Panuelo only alleges that they, much later, failed to acknowledge her, instead of Patricia Edwin, as David Panuelo's lawful spouse and the nation's First Lady. But, by then, the marital relationship between Janet Semes Panuelo and David Panuelo seems to have been long since rent asunder.
b. Intentional Infliction of Emotional Distress
As stated above in part II.A.3, Janet Semes Panuelo's complaint does not allege sufficient facts (that is, it does not allege that she suffered any physical manifestation of the emotional distress) to satisfy the elements of, and thus to state a claim for, intentional infliction of emotional distress. Accordingly, Janet Semes Panuelo's claims against all defendants for intentional infliction of emotional distress are dismissed for the failure to state a claim.
c. Slander
As stated above in part II.A.4, although it was unclear exactly whom this cause of action was brought against, the only allegations of actions that could constitute slander were Patricia Edwin's alleged oral statements. Therefore, this allegation does not state a claim against any of the government defendants.
d. Civil Conspiracy
As stated above in part II.A.1, civil conspiracy is not independently actionable tort because it requires the performance of some underlying tortious act. The only torts that this order does not dismiss for the failure to state a claim are slander and the possible Restatement §§ 683, 684(2), and 685 torts. These Restatement torts were all allegedly committed by Patricia Edwin before David Panuelo became President. None of the government defendants are alleged to have had a hand in seeing that Patricia Edwin committed those supposed torts. Nor could they have. "An action for the alienation of affections lies only against one who produced and brought about or caused an alienation of the affections of the plaintiff's spouse." 41 AM. JUR. 2D Husband and Wife § 469, at 396 (1968). Janet Semes Panuelo made no allegations that any of the government defendants produced and brought about or caused an alienation of David Panuelo's affections by enticement or otherwise, and she made no allegations either that any government defendant about any acts to bring about or cause a criminal conversation.
The gist of Janet Semes Panuelo's civil conspiracy claim against the government defendants7 is that the government defendants (and David Panuelo and Patricia Edwin) keep referring to Patricia Edwin as the nation's First Lady, which, in her view, means they were part of a plan or agreement to commit the allegedly wrongful act of calling Patricia Edwin the First Lady. The court cannot agree. That the various parts of the national government refer to or treat Patricia Edwin as the First Lady cannot be considered wrongful acts or part of a conspiracy when the President himself has referred to or designated that person as the First Lady.
The "office" of First Lady is not a constitutional office. Nor is it an office created by statute. It is not an office for which a writ of quo warranto will lie to determine the right to hold the office. It
is a title that is, or has been, customarily bestowed on or used to honor the President's wife, who is then expected to perform varied social and diplomatic functions on the President's or the nation's behalf. But the person acting as the First Lady would not necessarily be the President's wife. The President could be without a wife (for instance, widowed or divorced), or his wife could be too infirm to perform those functions, so in either case, the President might likely ask a close female relative to act as First Lady. Or the President might be a woman, in which case her husband would perform those functions, doubtlessly with a different, honorary title. In any case, it would be the President who would let the rest of government know who, if anyone, would be acting as First Lady and performing those social and diplomatic functions.
For all of the above reasons, Janet Semes Panuelo's civil conspiracy claim against the government defendants must be dismissed for the failure to state a claim for which the court can grant relief.
Seemingly, this could also require the dismissal of the civil conspiracy count in its entirety, at least as regards any underlying tort related to David Panuelo's marriage relation,8 because, as a matter of law, the wayward spouse, David Panuelo, would not be able to conspire with himself to be alienated or to be enticed. But the civil conspiracy count could survive as a conspiracy between David Panuelo and Patricia Edwin with allegation of the underlying tort of Patricia Edwin's slander and the allegation that that was part of a plan by those two defendants.
C. Whether to Dismiss Causes of Action That Do State a Claim
The Constitution confers subject matter jurisdiction over this case on the FSM Supreme Court because the national government is a party. The FSM Supreme Court trial division generally has original and exclusive jurisdiction over cases to which the national government is a party. FSM Const. art. XI, § 6(a). The FSM Supreme Court also has pendent jurisdiction over state law claims whenever the Constitution or national law confers subject matter jurisdiction on the court and those state law claims arise from the same nucleus of operative fact as the claims under national jurisdiction and are such that they would be expected to be tried in the same judicial proceeding. Wainit v. Chuuk Public Utility Corp., 20 FSM R. 135, 137 (Chk. 2015); Lippwe v. Weno Municipality, 14 FSM R. 347, 352 (Chk. 2006); Harper v. William, 14 FSM R. 279, 282 (Chk. 2006); Esa v. Elimo, 14 FSM R. 216, 220 (Chk. 2006); Warren v. Pohnpei State Dep't of Public Safety, 13 FSM R. 483, 492 (Pon. 2005); Foods Pacific, Ltd. v. H.J. Heinz Co. Australia, 10 FSM R. 200, 205 (Pon. 2001); Ponape Constr. Co. v. Pohnpei, 6 FSM R. 114, 116 (Pon. 1993), aff'd, 7 FSM R. 613 (App. 1996).
But when, before the defendants have even answered, the court dismisses, for the failure to state claims on which the FSM Supreme Court can grant relief, all of the claims that confer subject matter jurisdiction on the court, and all the causes of action that remain are the pendent state law claims, the court should dismiss the rest of the complaint without prejudice and allow the state law claims to proceed in state court. Sonden v. Pohnpei, 22 FSM R. 465, 467 (Pon. 2020); Ladore v. Panuel, 17 FSM R. 271, 276 (Pon. 2010). This is because a national court
should consider and weigh in each [pendent jurisdiction] case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent law state-law claims. When the balance of these factors indicates that a case properly belongs in state court, as when the [national]-law claims have dropped out of the lawsuit
at its early stages and only state-law claims remain, the [national] court should decline the exercise of jurisdiction by dismissing the case without prejudice. . . . [T]he doctrine of pendent jurisdiction thus is a doctrine of flexibility . . . .
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S. Ct. 614, 619, 98 L. Ed. 2d 720, 729-30 (1988) (footnote and citation omitted). Furthermore, "[w]here the [national] claim must be dismissed it may be an abuse of discretion to take pendent jurisdiction of a claim that depends on novel questions of state law." Robison v. Via, 821 F.2d 913, 925 (2d Cir. 1987) (citing Fay v. South Colonie Sch. Dist., 802 F.2d 21, 34 (2d Cir. 1986)).
Janet Semes Panuelo's national jurisdiction claims (her claims against the national government or its agencies), or causes of action, are, by this order, all dismissed for the failure to state a claim, all before any defendant has pled. Janet Semes Panuelo's remaining claims mostly depend on novel questions of state law – whether alienation of affections, enticement, or criminal conversation (or as the combined tort of interference with marriage relation) are actionable under Pohnpei state law. Therefore, the remaining state law claims are hereby dismissed without prejudice to any future filing or proceeding in the Pohnpei Supreme Court. That court can determine whether, and to what extent, the novel claims are actionable under Pohnpei state law.
Accordingly, the court dismisses the intentional infliction of emotional distress claims against every defendant because Janet Semes Panuelo's factual allegations are insufficient for a court to grant any relief thereon. The court dismisses Janet Semes Panuelo's claims against Congress with prejudice because they present a nonjusticiable political question. The court dismisses all causes of action against the government defendants because they do not present claims for which the court can grant relief.
And the court dismisses the tortious interference with a marriage contract [alienation of affections, enticement (causing spouse to separate from other spouse), or criminal conversation], slander claims (and civil conspiracy, if it has survived with slander as the underlying tort) against Patricia Edwin (and David Panuelo) without prejudice to any future state court proceedings thereon.
This case is closed.
_______________________________Footnotes:
1 Also on December 23, 2019, David Panuelo filed a petition, in the Pohnpei Supreme Court, to confirm his alleged earlier customary divorce from Janet Semes Panuelo, or, alternatively, to be granted a divorce under Pohnpei statutory law. On January 7, 2020, Janet Semes Panuelo moved to dismiss that petition because, under Pohnpei case law, the courts lacked jurisdiction to dissolve a religious marriage, such as hers, and that the only proper forum would be the relevant church authorities. On January 13, 2020, David Panuelo filed an opposition to that motion. That case remains pending.
2 This tort's odd name comes about because the act is "criminal" in the sense that it was an ecclesiastical crime and it is "conversation" in the sense of intercourse. WILLIAM L. PROSSER, THE LAW OF TORTS § 124, at 875 n.75 (4th ed. 1971). "In its general and comprehensive sense, the term 'criminal conversation,' is synonymous with 'adultery'; but in its more limited and technical signification, in which it is here to be considered, it may be defined as adultery in the aspect of tort." Turner v. Heavrin, 206 S.W. 23, 23 (Ky. 1918).
3 A decision of the highest state court about a state law matter is controlling and the FSM Supreme Court will apply it. Phoenix of Micronesia, Inc. v. Mauricio, 9 FSM R. 155, 158 (App. 1999). A state court trial division decision may be deemed not to be controlling if it appears that the highest state court would decide the question differently. Kitti Mun. Gov't v. Pohnpei, 13 FSM R. 503, 508 (App. 2005). If there is no controlling state case law, then the court should decide the case according to how it thinks the highest state court would, and if the state's highest court later decides the issue differently, then that case will prospectively serve as controlling precedent for the national court on that state law issue. Berman v. Lambert, 17 FSM R. 442, 446 (App. 2011).
4 The Restatement of Torts § 690, which focused solely on a wife's claims against someone who alienated the affections of, enticed, or had criminal conversation with her husband was omitted from the Restatement (Second) of Torts since it was covered in the redrafted Restatement (Second) of Torts §§ 683-689. The form of relief and components of a spouse's damages that were previously covered in Restatement of Torts § 690 comment b are now covered by Restatement (Second) of Torts § 683 comment m, § 684 comment j, and § 685 comment g.
5 The dismissal of this tort cause of action would not affect the use of emotional distress as a component of damages assessed for alienation of affections, enticement, or criminal conversation. See RESTATEMENT (SECOND) OF TORTS § 683 cmt. m; § 684 cmt. j; § 685 cmt. g (1977).
6 Even the practicalities of this proposal are daunting. How could the court possibly conclude that a majority of Congress would vote, or would even be required to vote, to discipline David Panuelo, or that _ of Congress would, or would be required to, vote to suspend him?
7 Other than her claim that Congress was required to and failed to discipline David Panuelo.
8 Alienation of affections, enticement, or criminal conversation.
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