THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as Conrad v. Kolonia Town ,
8 FSM Intrm. 215 (Pon. 1997)

[8 FSM Intrm. 215]

CONRAD CONRAD,
Plaintiff,

vs.

KOLONIA TOWN GOVERNMENT et al.,
Defendants.

CIVIL ACTION NO. 1994-155

ORDER

Andon L. Amaraich
Chief Justice

Decided:  December 2, 1997

APPEARANCES:

For the Plaintiff:            Charles Greenfield, Esq.
                 Micronesian Legal Services Corporation
                 P.O. Box 129
                 Kolonia, Pohnpei FM 96941

For the Defendants:    Daniel J. Berman, Esq.
                 P.O. Box 1491
                 Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Civil Procedure ) New Trial
     A new trial may be granted to all or any of the parties and on all or part of the issues for manifest error of law or fact, or for newly discovered evidence.  Conrad v. Kolonia Town, 8 FSM Intrm. 215, 216 (Pon. 1997).

Civil Procedure ) New Trial; Evidence
     It is not a manifest error of fact requiring a new trial that certain evidence that parties felt was

[8 FSM Intrm. 216]

compelling was not recited in the court's decision or given the weight they thought proper, when the parties were afforded a full hearing and the court considered all evidence on the record in reaching its decision.  Conrad v. Kolonia Town, 8 FSM Intrm. 215, 217 (Pon. 1997).

Civil Procedure ) New Trial; Torts ) Battery
     It is not a manifest error of law or fact requiring a new trial that the court held police officers liable for battery without determining exactly which officer's action caused plaintiff's injury when the court found that each of the defendants had participated in plaintiff's arrest, the court discussed the issues of justifiable force and privilege throughout its decision, and found that defendants had acted with intent to bring about a harmful or offensive contact with plaintiff, which was not justified under the circumstances.  Conrad v. Kolonia Town, 8 FSM Intrm. 215, 217-18 (Pon. 1997).

Civil Procedure ) New Trial
     A motion for a new trial will be denied when the movant has not demonstrated that a manifest error of law or fact existed.  Conrad v. Kolonia Town, 8 FSM Intrm. 215, 218 (Pon. 1997).

*    *    *    *

COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:

Introduction
     On June 26, 1997, the Court issued an Order and Memorandum of Decision, Conrad v. Kolonia Town, 8 FSM Intrm. 183 (Pon. 1997), finding defendants jointly and severally liable for battery, use of excessive force, and civil rights violations in connection with their arrest of plaintiff in the early hours of January 1, 1993.  The Court awarded plaintiff compensatory damages, attorney's fees and costs. Judgment was entered on June 27, 1997 in favor of plaintiff and against defendants in the amount of $15,000.00, excluding fees and costs.

     Following a July 3, 1997 Motion for Enlargement of Time, defendants filed a Motion for New Trial or Amendment of Judgment on July 14, 1997.  That motion is now before the Court.1

Discussion
     FSM Civil Rule 59(a) provides the following grounds for the granting of a motion for a new trial:

Grounds.  A new trial may be granted to all or any of the parties and on all or part of the issues for manifest error of law or fact, or for newly discovered evidence.  On a motion for a new trial the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.

[8 FSM Intrm. 217]

FSM Civ. R. 59(a).  Defendants base their motion on "manifest error of law or fact."  They argue that the Court's decision is against the weight of the evidence presented at trial, and that plaintiff failed to satisfy his burden of proof.

I.  Record Evidence
     Defendants first argue that undisputed evidence regarding plaintiff's size and strength was placed on the record.  They contend that this evidence was "highly relevant and probative" on the reasonableness of the force used by defendants to arrest plaintiff, yet it does not appear in the Court's Findings of Fact and Conclusions of Law.  They argue that based on a proper analysis of this evidence, the Court should have concluded that the amount of force used to arrest plaintiff was reasonable under the circumstances.

     Second, defendants cite certain evidence on the record regarding plaintiff's employment history before and after his injury, which they note was also not included in the Court's express findings.  Defendants argue that plaintiff's difficulty in retaining employment demonstrates that their conduct was not necessarily the cause of plaintiff's diminished salary following his injury.  It may not even have been the reason for plaintiff's termination from his job with the state legislature.

     Third, defendants argue that many of plaintiff's personal habits, on the record but also not recited in the Court's findings, discredit plaintiff's testimony.

     Defendants have not established that the Court's June 1997 Order and Memorandum of Decision contains a manifest error of law or fact on these points. Defendants have not argued that the Court failed to consider the totality of the evidence before it on any of these issues.  Instead, they object to the fact that certain evidence they felt was compelling was not recited in the Court's Order and Memorandum of Decision.  They also object to the weight the Court gave this evidence in reaching its decision.  However, the fact that certain evidence was not recited in the Court's decision does not mean it was not considered.  Defendants were afforded a full hearing and the Court considered all evidence on the record in reaching its decision.

II.  Failure of Proof
     Next, defendants contend that because the Court never determined exactly which police officer's actions caused plaintiff's injury, there was insufficient evidence on the record from which the Court could find any one individual officer personally liable for damages to plaintiff.  Hence, defendants argue, there was also insufficient evidence from which the Court could find the Kolonia Town Government liable for damages based on defendants' actions.  Finally, defendants contend that the Court failed to discuss or analyze the defense of justifiable force, and applied an erroneous intent standard for battery.

     Defendants have not established that the June 1997 Order and Memorandum of Decision contains a manifest error of law or fact on these points.  The Court's decision relies in part upon the reasoning in Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985), and Tolenoa v. Alokoa, 2 FSM Intrm. 247, 249-51 (Kos. 1986).  In Grandstaff, the Court found police officers jointly liable for civil rights violations where they had acted in concert to shoot and kill an innocent bystander. Defendants argued that without evidence that a particular officer had fired the shot that killed the victim, there could be no constitutional deprivation by any particular officer.  The Court in that case disagreed, and found defendants liable without determining whose bullet had actually killed the bystander.  In Tolenoa, the FSM Supreme Court held a police officer liable for civil rights violations, where he had permitted and acquiesced in the actions of a second officer.

[8 FSM Intrm. 218]

     In this case, the Court found that each of the defendants had participated in plaintiff's arrest.  Conrad, 8 FSM Intrm. at 192.  The Court also discussed the issues of justifiable force and privilege throughout its decision.  Id. at 191-94. Finally, the Court found that defendants had acted with intent to bring about a harmful or offensive contact with plaintiff, which was not justified under the circumstances, citing Paul v. Celestine, 4 FSM Intrm. 205 (App. 1990). Defendants have failed to persuade the Court that its ruling contains a manifest error of law or fact.

Conclusion
     The Court has considered each of the arguments contained in defendants' Motion for New Trial or To Amend Judgment pursuant to FSM Civ. R. 59(a) and in plaintiff's opposition to that motion.  Defendants have not demonstrated to the Court that any manifest error of law or fact exists.  Accordingly, defendants' Motion for New Trial or Motion to Amend Judgment is hereby denied.
 
 
Footnote:
 
1.  FSM Civil Rule 59(b) provides that a motion for new trial must be filed within 10 days of entry of judgment.  Defense counsel was served with a copy of the Court's June 26, 1997 Order and June 27, 1997 Judgment by mail.  On July 3, 1997, defendants moved for an enlargement of time to move for a new trial.  Because plaintiff did not object to that motion, that motion is now granted and defendants' Motion for New Trial is treated as having been timely filed.
 
                                                                                                                                                                                                                                                                                                           
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