THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Kaminaga v. Chuuk ,
7 FSM Intrm. 272 (Chk. S. Ct. Tr. 1995)

[7 FSM Intrm. 272]

KAPIER KAMINAGA,
Plaintiff,

vs.

STATE OF CHUUK,
Defendant.

CA No. 5-94

FINDINGS OF FACT,
CONCLUSIONS OF LAW AND JUDGMENT
 
Soukichi Fritz
Chief Justice

Trial:  May 31, 1995
Decided:  June 30, 1995

APPEARANCES:
For the Plaintiff:          Maketo Robert, Esq.
                                     P.O. Box 1100
                                     Weno, Chuuk FM 96942

For the Defendant:     Hans Wiliander, Trial Counselor
                                     Assistant Attorney General
                                     Office of the Chuuk Attorney General
                                     P.O. Box 189
                                     Weno, Chuuk FM 96942

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HEADNOTES
Evidence ) Judicial Notice
     When portions of court files in other cases are introduced into evidence a court may take judicial notice of all the papers and pleadings on file in those other cases.  Kaminaga v. Chuuk, 7 FSM Intrm. 272, 273 (Chk. S. Ct. Tr. 1995).

[7 FSM Intrm. 273]

Civil Procedure
     When a defendant's answer has placed all the plaintiff's allegations into issue and even though the defendant did not appear at trial the plaintiff still has the burden of proving his case by a preponderance of evidence.  Kaminaga v. Chuuk, 7 FSM Intrm. 272, 274 (Chk. S. Ct. Tr. 1995).

Sovereign Immunity; Torts ) Damages
     A plaintiff may not as a matter of law recover punitive damages from the State of Chuuk.  Kaminaga v. Chuuk, 7 FSM Intrm. 272, 274 (Chk. S. Ct. Tr. 1995).

Statutes of Limitation
     The statute of limitation for a claim against the State of Chuuk based upon the act or omission of a policeman in connection with the performance of his official duties is two years after the cause of action accrues.  Kaminaga v. Chuuk, 7 FSM Intrm. 272, 274 (Chk. S. Ct. Tr. 1995).

Sovereign Immunity
     The State of Chuuk is immune from civil suits for damages arising out of malicious prosecution.  Kaminaga v. Chuuk, 7 FSM Intrm. 272, 274-75 (Chk. S. Ct. Tr. 1995).

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COURT'S OPINION
SOUKICHI FRITZ, Chief Justice:
     This matter came before the court for trial May 31, 1995 on plaintiff's complaint, filed January 6, 1994, for damages resulting from the seizure of his poker machines on June 15, 1988.  The plaintiff was present and represented by Mr. Maketo Robert, Esq.  The defendant through its counsel, Hans Wiliander of the Chuuk Attorney General's Office answered the complaint but failed to appear for trial.  As a result, the court received the evidence presented by plaintiff without contest by the defendant.

Background
     The plaintiff's complaint alleges 6 causes of action, all of which are based on the 1988 seizure of his poker machines.  The machines were retained by the state for 34 days before their return.

     The first cause of action alleges the machines were illegally seized and the plaintiff lost the profits of the machines as a result of the seizure and retention.  The second cause claims that the plaintiff's right to be secure from unreasonable searches and seizure was violated for which he seeks damages.  The plaintiff's third cause seeks damages claiming that the defendant's action of seizing the machines constituted malicious prosecution.  The remaining three causes of action all allege the plaintiff is entitled to punitive damages for each of the first three claims.
 
     The plaintiff's evidence consisted of the introduction and uncontested admission of 8 exhibits.  Exhibits A, B, C, D, E and F are copies of motions to condemn and forfeit slot machines filed June 17, 1988 by the Chuuk State Attorney General's Office in cases TSC Nos. 86-88, 87-88, 88-88, 89-88, 90-88 and 91-88.  Since parts of these files were introduced into evidence, the court finds it necessary, pursuant to Chuuk Evidence Rule 201, to take judicial notice of all the papers and pleadings on file in these cases in order to fully understand the plaintiff's position.

     These cases were consolidated and Exhibit G is a copy of the court's opinion denying forfeiture and ordering the return of the poker machines to the plaintiff.  See In re Slot Machines, 3 FSM Intrm.

[7 FSM Intrm. 274]

498 (Truk S. Ct. Tr. 1988).  Exhibit H is a summary of Income for the month of February 1995 for three poker machines owned by the plaintiff, purporting to show that plaintiff's machines earned an average of $204.06 each, per day, during the month reported.

     The court, after having reviewed all the papers and pleading on file including those judicially noticed the exhibits admitted and after hearing the arguments of plaintiff's counsel, makes its findings of fact as follows.

Findings of Fact
     The court finds that all of plaintiff's poker machines were seized on June 15, 1988 by officers of the Chuuk Department of Public Safety pursuant to a judicially issued search warrant.  The court finds that these poker machines were retained by agents of the defendant (State) pursuant to an order of retention issued by the court.  The court finds that the machines were returned to the plaintiff on July 20, 1988 after the court held that the statutory definition prohibiting slot machines did not include poker machines.  The court finds that the plaintiff's complaint was filed on January 4, 1994, almost five and one half years after the seizure.

     The court takes judicial notice of the court records and finds that the search warrant applications and Motions to Condemn and Forfeit were instituted by the defendant through its Office of the Attorney General in its capacity as the public prosecutor for this jurisdiction.  The court finds that the first three causes of action are all premised on the seizure of the plaintiff's poker machines.  The court finds that the plaintiff's fourth, fifth and sixth causes of action seek punitive damages against the defendant Chuuk State.

     The court finds that the plaintiff's third cause of action is based on malicious prosecution.  The court makes no finding on the issue of damages due to the conclusions of law reached.  The court makes the following conclusions of law based upon the foregoing findings of fact.

Conclusions of Law
     The court concludes that the defendant's answer placed all the plaintiff's allegations into issue and even though the defendant did not appear at trial the plaintiff still has the burden of proving his case by a preponderance of evidence.  The court concludes that the plaintiff may not as a matter of law recover the punitive damages sought against the State as alleged in plaintiff's fourth, fifth and sixth causes of action.  6 TTC 253.

     The court concludes that plaintiff's first cause of action accrued at the latest on July 20, 1988 and is based upon the seizure of the poker machines pursuant to a judicially issued warrant and therefore the claim against the defendant State is based upon the act or omission of a policeman in connection with the performance of his official duties.  The court concludes that the statute of limitation for this type of action is two years after the cause of action accrues.  6 TTC 303(2).  The court concludes that the plaintiff's first cause of action was filed more than five years after the cause of action accrued and therefore recovery by the plaintiff is barred.  The court further concludes that this same limitation period applies to the plaintiff's second cause of action since it arose and is based upon the same action of the police in seizing the plaintiff's poker machines.

     The court concludes that as to the plaintiff's third cause of action for malicious prosecution the defendant state is immune.  The only waiver of immunity for actions against the defendant State are found in 6 TTC 251(1)(c).  That section states that the court has jurisdiction over "civil action against the Government . . . on claims for money damages . . . for injury or loss of property . . . caused by the

[7 FSM Intrm. 275] ]

negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment . . . ."  But 6 TTC 252(5) excludes "Any claim arising out of . . . malicious prosecution . . . ."  The court concludes that the plaintiff's claim in his third cause of action based on malicious prosecution fails to state a cause of action against the defendant state for which the plaintiff may recover.

     The court, based upon the foregoing findings of fact and conclusions of law, enters judgment as follows.

negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment . . . ."  But 6 TTC 252(5) excludes "Any claim arising out of . . . malicious prosecution . . . ."  The court concludes that the plaintiff's claim in his third cause of action based on malicious prosecution fails to state a cause of action against the defendant state for which the plaintiff may recover.

     The court, based upon the foregoing findings of fact and conclusions of law, enters judgment as follows.

Judgment
     It is

     Ordered, Adjudged and Decreed that the plaintiff is awarded nothing for his first and second causes of action as recovery is barred by the applicable statute of limitation.  It is further

     Ordered that plaintiff's is awarded nothing on his third cause of action as the defendant state is immune from civil suits for damages that arise out of malicious prosecution and the cause of action therefore fails to state a claim upon which relief may be had.  It is further

     Ordered that the plaintiff is awarded nothing on his fourth, fifth and sixth causes of action as the pertinent statute precludes the recovery of punitive damages against the state.  It is further

     Ordered that each party is to bear its own cost of suit.

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