THE  SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as Damarlane v. Harden, 8 FSM Intrm. 225 ( Pon. 1998)

[ 8 FSM Intrm. 225]

SILVERIO DAMARLANE,
Plaintiff,

vs.

WAYNE L. HARDEN,
Defendant.

CIVIL ACTION NO. 1997-092

ORDER GRANTING PETITION FOR REMOVAL

Andon L. Amaraich
Chief Justice

Decided:  January 9, 1998

APPEARANCE:

For the Defendant:     Mary Berman, Esq.
                       P.O. Box 163
                       Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES

Jurisdiction ) Removal
     Another court's purported lack of subject matter jurisdiction over a case is not a basis for removing that case to the FSM Supreme Court.  Rather, the basis for removing a state court case to the FSM Supreme Court is the FSM Supreme Court's jurisdiction to hear the case in question.  Damarlane v. Harden, 8 FSM Intrm. 225, 226 (Pon. 1998).

Jurisdiction ) Removal
     Any action brought in a state court of which the trial division of the FSM Supreme Court has jurisdiction may be removed by any party to the trial division of the FSM Supreme Court.  This includes cases involving parties of diverse citizenship.  Damarlane v. Harden, 8 FSM Intrm. 225, 226 (Pon. 1998).

Jurisdiction ) Removal
     In order to remove a case from a state court to the FSM Supreme Court, the moving party must file a verified petition with the FSM Supreme Court within sixty days from the date that the party receives, through service or otherwise, a copy of an initial or amended pleading, motion, order or other paper from which it may first be ascertained that the case is removable.  The petition for removal must contain a short and plain statement of the facts which entitle the party to removal along with a copy of all process, pleadings and orders served upon or by the moving party in such action.  Damarlane v. Harden, 8 FSM Intrm. 225, 227 (Pon. 1998).

[8 FSM Intrm. 226]

Jurisdiction ) Removal
     A case may be removed from a municipal court to the FSM Supreme Court when diversity of citizenship exists.  Damarlane v. Harden, 8 FSM Intrm. 225, 227 (Pon. 1998).

*    *    *    *

COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

Introduction

     On October 10, 1997, Wayne L. Harden filed a Petition for Removal with this Court.  In his petition, Mr. Harden states that he is a defendant in Nett District Court Civil Action No. 02-97.  Petitioner requests that this Court remove that Nett District Court case to the FSM Supreme Court.

Petition for Removal

     Mr. Harden states that on October 6, 1997, he received a summons to appear at an October 17, 1997 hearing in Nett District Court in connection with Nett District Court Civil Action No. 02-97.  Mr. Harden provided a copy of the summons he received.  He also provided a copy of this summons which he had translated from Pohnpeian into English.  A review of the translated summons shows that Mr. Harden was summoned to appear at a hearing in connection with Silverio Damarlane's demand that Mr. Harden pay a "$1,050.05 debt" along with "$3.50 in service costs."  The petitioner avers that this is the only document he received in connection with the Nett District Court case in question.

     Citing FSM General Court Order 1992-2 ("GCO 1992-2"), petitioner maintains that this case should be removed to the FSM Supreme Court based upon the parties diversity of citizenship.  Petitioner, in a signed affidavit, states that he is a citizen of the United States while the plaintiff is a citizen of the FSM.

     Petitioner also argues that the state court case in question should be removed because the Nett District Court "is not the proper court for [the] dispute" between the parties.  Citing Sections 1 and 2 of Article XI of the Pohnpei State Constitution as well as the Pohnpei Judiciary Act of 1982, S.L. 2L-160-82, petitioner states that as an inferior state court, the Nett District Court's jurisdiction is limited to "disputes where the amount of money involved does not exceed $500."  Noting that the plaintiff in the Nett District Court case seeks $1,050.05 in relief, petitioner argues that the Nett District Court case should be removed to the FSM Supreme Court.

Discussion

     As an initial matter, it should be noted that the Pohnpei Judiciary Act of 1982, which petitioner cites in his Petition for Removal, was repealed in 1995 when the Pohnpei Legislature enacted the Pohnpei Judiciary Act of 1995, Pon. S.L. 3L-99-95.  Moreover, and in any event, the Nett District Court's purported lack of subject matter jurisdiction over Civil Action No. 02-97 is not a basis for removing that case to this Court.  Rather, as set forth in GCO 1992-2, the basis for removing a state court case to the FSM Supreme Court is the FSM Supreme Court's jurisdiction to hear the case in question.  Under GCO 1992-2, "[a]ny action brought in a state court of which the trial division of the FSM Supreme Court has jurisdiction may be removed by any party to the trial division of the FSM Supreme Court."  Under Article XI, section 6(b) of the FSM Constitution, cases involving parties of diverse citizenship may be brought to the FSM Supreme Court.

[8 FSM Intrm. 227]

     Based upon the petitioner's motion in the matter at hand, this Court has jurisdiction over the Nett District Court case in question based upon the parties' diversity in citizenship.  Indeed, petitioner's motion shows, based upon the affidavit he signed, that he is a citizen of the United States while the plaintiff, Silverio Damarlane, is a citizen of the FSM.  Since diversity of citizenship between parties triggers the FSM Supreme Court's jurisdiction over a case, this Court has jurisdiction over this matter.

     It further appears that the Petition for Removal at issue here meets the requirements of GCO 1992-2 and as such, the removal of Nett District Court Civil Action No. 02-97 is proper.  In order to remove a case from a state court to the FSM Supreme Court, the moving party must file a verified petition with the FSM Supreme Court within sixty days from the date that the party receives, through service or otherwise, a copy of an initial or amended pleading, motion, order or other paper from which it may first be ascertained that the case is removable.  FSM GCO 1992-2.  In addition, the petition for removal must contain a short and plain statement of the facts which entitle the party to removal along with a copy of all process, pleadings and orders served upon or by the moving party in such action.  Id.

     Defendant's petition shows that he received the summons to appear at a hearing in connection with the state court case in question on October 6, 1997.  His subsequent Petition for Removal, which was filed four days later, on October 10, 1997, included not only a statement of the facts evidencing the parties' diversity of citizenship as a basis for removal to this Court, but it also included a copy of the summons he received, which he maintains is the only document he has received to date in connection with Nett District Court Civil Action No. 02-97.  Accordingly, the removal of Nett District Court Civil Action No. 02-97 is proper.
 
Conclusion

     Based upon the above discussion, the defendant's Petition for Removal is granted.  Accordingly, Nett District Court Civil Action No. 02-97 is hereby removed to the FSM Supreme Court.

     In addition, in as much as petitioner has averred that the only pleading he has received in connection with Nett District Court Civil Action No. 02-97 was a summons to appear at an October 17, 1997 hearing before the Nett District Court, the petitioner is hereby ordered to obtain and file with the Clerk of this Court copies of all other records and proceedings in Nett District Court Civil Action 02-97, including any pleadings and orders which the petitioner purportedly did not receive.  See FSM GCO 1992-2, III(B).  Petitioner is ordered to file with this Court all such records and pleadings from the Nett District Court within ten days from the date that this Order is issued.

                                                                                                                                                                                                                                                                                                           
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