FSM SUPREME COURT
APPELLATE DIVISION
Cite as Etscheit v. Adams,
5 FSM Intrm. 339 (App. 1992)

[5 FSM Intrm. 339]

CAMILLE ETSCHEIT, ESTATE OF
ELLA ETSCHEIT JOUBERT,
ROBERT ETSCHEIT SR., ESTATE
OF LEO ETSCHEIT, AND ROBERT
ETSCHEIT, JR. in his capacity
as administrator and anindividual,
Appellants,

v.

YVETTE ETSCHEIT ADAMS AND
RENEE ETSCHEIT VARNER,
Appellees.

FSM APP. P6-1991

OPINION
 
Argued:  June 25, 1992
Decided:  August 19, 1992

BEFORE:
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court;
Hon. Martin Yinug, Associate Justice, FSM Supreme Court;
Hon. Andon L. Amaraich, Associate Justice, FSM Supreme Court

APPEARANCES:
For the Appellants:     Daniel J. Berman
                                      Rush, Moore, Craven, Sutton, Morry and Beh
                                      Kolonia, Pohnpei  FM 96941

For the Appellees:      Fredrick L. Ramp
                                      Attorney at Law
                                      Kolonia, Pohnpei  FM 96941

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HEADNOTE
Jurisdiction - Removal
     Removal to the Supreme Court pursuant to article XI, section 6(b) of the Constitution cannot be ordered if there is no diversity of citizenship among the parties to the case pending in the state court.  Etscheit v. Adams, 5 FSM Intrm. 339, 341 (App. 1992).

[5 FSM Intrm. 340]

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     The appellants appeal the denial by the trial court of their petition, alleging diversity, to remove Pohnpei Civil Action No. 343 to the FSM Supreme Court. The trial court's opinion is in Etscheit v. Adams, 5 FSM Intrm. 243 (Pon. 1991). We conclude that removal is not proper because the parties to 343 are not diverse, and thus affirm the denial.

     Civil Action No. 343 for partition of land was filed in the Trust Territory High Court in 1968, entitled Carlos Etscheit, Plaintiff v. Leo Etscheit, Robert Etscheit, Camille Etscheit and Ella Joubert, Defendants.  After a trial in 1969 the matter was submitted for decision.  No decision was ever made in the High Court.  In 1984 the High Court transferred the case to the Pohnpei State Supreme Court.

     In 1988 a second amended complaint was filed in Civil Action No. 343 entitled Yvette Etscheit Adams and Renee Etscheit Varner, Plaintiffs v. Robert Etscheit Jr., Defendant.  Since 1988 Case No. 343 pleadings have borne this title.  The three parties are citizens of Pohnpei.  The second amended complaint alleged that Carlos Etscheit had conveyed all "interests he might have" to his daughters Yvette Etscheit Adams and Renee Etscheit Varner.  This was denied by the defendant.  It also alleged that the former defendants, Camille Etscheit, Ella Etscheit Joubert, and Robert Etscheit Sr. had conveyed any interests they had to Robert Etscheit Jr. The second amended complaint also alleged that Leo Etscheit had devised to Robert Etscheit Sr. any interests that he had in Etscheit land in Pohnpei.  These latter two allegations were admitted by the defendant Robert Etscheit Jr.

     On January 22, 1991 the plaintiffs in 343, Yvette Etscheit Adams and Renee Etscheit Varner, filed a motion for summary judgment.  The plaintiffs herein then filed their petition for removal.  (The plaintiffs herein, except for Robert Etscheit Jr., are not parties in No. 343).  In seeking removal, the plaintiffs contend that this petition was necessary because the January 22, 1991 motion for summary judgment placed in issue the effectiveness and completeness of the transfers of interest from Camille Etscheit, Ella Etscheit Joubert and Robert Etscheit Sr. to Robert Etscheit Jr.  Thus Yvette Etscheit Adams and Renee Etscheit Varner are claiming ownership in those parcels named in those transfers and in those parcels not included in the transfers. Because this is so, say the plaintiffs, they are compelled to defend their interests and diversity now exists.

     According to the plaintiffs the position taken in the January 22, 1991 motion for summary judgment by Yvette Etscheit Adams and Renee Etscheit Varner "wholly contradicts" the 1988 pleadings referred to above.  The petitioners seem to state that the 1988 pleadings were the result of an agreement among all parties to recognize all interests of the five Etscheit children (Camille

[5 FSM Intrm. 341]

Etscheit, Leo Etscheit, Ella Joubert, Carlos Etscheit, and Robert Etscheit Sr.) were owned (after the transfers) by Robert Etscheit Jr., Yvette Etscheit Adams and Renee Etscheit Varner, and that that 1991 motion which brings the effectiveness of those transfers into issue, constitutes a violation of the agreement.  Therefore the earlier parties are in effect reinstated by force of these circumstances.

     We do not need to consider the agreement the plaintiffs contend existed, nor pursue the implications of a breach that they assert.  Instead the posture of the case for which removal is sought (Case No. 343) is this:  it is pending in the Pohnpei State Supreme Court with the parties, Yvette Etscheit Adams, Renee Etscheit Varner and Robert Etscheit Jr., all citizens of Pohnpei.  In oral argument both lawyers agreed that the parties in 343 are not diverse.  We have no authority offered us by the plaintiffs which would entitle us to add the non-citizen parties. Even assuming, which we do not, that there was a 1988 agreement that was violated by the positions taken by Yvette Etscheit Adams and Renee Etscheit Varner in their 1991 motion, we cannot simply reinstate the non-citizens.  We have no authority to act in this way on a case pending in a state court.

     The trial court addressed this point in its opinion, and reached the same conclusion as we have.  The trial court stated:

     Second, in early 1988, all parties, pursuant to what the petitioners now refer to as a "tactical stipulation," took steps which culminated in the filing of new pleadings in the state court, omitting the non-citizen petitioners as parties and reflecting general agreement that Robert Etscheit Jr. had obtained all of the former interests of Dr. Robert Sr., Camille, Ella, and Leo Etscheit.  The effect of this stipulation, and presumably its purpose, was to place the litigation within the sole jurisdiction of the state court.

     The fact that this stipulation may have been violated in 1991 when the respondents, in the state court proceedings, asserted that the attempted assignments of interests in land by the non-citizen petitioners to Robert Etscheit Jr. were not effective, does not retroactively change the effect of the stipulation for purposes of jurisdiction.

Etscheit v. Adams, 5 FSM Intrm. 243, 248 (Pon. 1992).

     On the ground that the parties in the pending state court case are not diverse we affirm the lower court's denial of removal and its dismissal of the petition for removal. The appeal is accordingly dismissed.

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