THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as Porwek v. American Int'l Co. Micronesia ,
8 FSM Intrm. 436 (Chk. 1998)
ASAKO PORWEK,
Plaintiff,
vs.
AMERICAN INTERNATIONAL COMPANY
MICRONESIA, INC. and CHUUK STATE,
Defendants.
CIVIL ACTION NO. 1998-1017
ORDER
Richard H. Benson
Associate Justice
Decided: August 21, 1998
APPEARANCES:
For the Plaintiff/Respondent: Midasy O. Aisek, Esq.
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942
For the Defendant/Petitioner: Andrew Clayton, Esq.
(American Int'l Co.) Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941
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HEADNOTES
Jurisdiction ) Removal
Removal to the FSM Supreme Court is effected when, promptly after filing a verified removal petition together with copies of all state court process, pleadings and orders, the party seeking removal has given written notice thereof to all parties and has filed a copy of the petition with the clerk of the state court. Porwek v. American Int'l Co. Micronesia, 8 FSM Intrm. 436, 438 (Chk. 1998).
Civil Procedure ) Service
The rules require a certification of service upon all other parties. Porwek v. American Int'l Co. Micronesia, 8 FSM Intrm. 436, 438 (Chk. 1998).
Jurisdiction ) Removal
When removing a case to the FSM Supreme Court, a careful attorney ought to promptly notify the FSM Supreme Court when a copy of the removal petition has been filed with the state court clerk so as to avoid any confusion or delay. Porwek v. American Int'l Co. Micronesia, 8 FSM Intrm. 436, 438 (Chk. 1998).
Civil Procedure ) Motions; Jurisdiction ) Removal
An opposition to a removal petition, regardless of how it is styled, is actually a motion to remand the case to state court on the ground that it was improvidently removed. Porwek v. American Int'l Co. Micronesia, 8 FSM Intrm. 436, 438 (Chk. 1998).
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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
On July 21, 1998, American International Company Micronesia, Inc. filed in this court, pursuant to General Court Order 1992-2, a petition for removal of Chuuk State Supreme Court Civil Action No. 48-91, a case in which it is a named defendant. Attached to the petition was its attorney's verified petition and copies of all pleadings, filings, and orders in Chuuk State Supreme Court Civil Action No. 48-91. The Assistant Clerk of Court assigned it docket number 1998-1017. On July 24, 1998, Asako Porwek filed the Plaintiff's Response to Defendant's (AIC) Petition for Removal along with points and authorities. It moved the court "to deny the petition for removal" and asserted that this case was improperly removed.
American International has complied with the requirements of General Court Order 1992-2, section II(A) by filing a verified petition together with copies of all state court process, pleadings and orders. Removal to this court is effected when, promptly after filing the removal petition, the party seeking removal has given written notice thereof to all parties and has filed a copy of the petition with the clerk of the state court. FSM GCO 1992-2, § II(D). The rules require a certification of service upon all other parties. FSM Civ. R. 5(d). This was done. A certificate of service on the other parties was filed.
There is, however, a minor flaw in
the provisions of the rules and General Court Order 1992-2. There is
no provision specifically requiring that the FSM Supreme Court be informed
that a copy of the petition has been filed with the state court clerk and
the date and time it was filed. A careful attorney ought,
nonetheless, to promptly notify the FSM Supreme Court when this has been
done so as to avoid any confusion or delay.
Assuming that American International has filed a copy with the state court clerk, then it has effected the removal of this case to this court. Therefore, the plaintiff's response to the petition, regardless of how it was styled, is actually a motion to remand this case to Chuuk State Supreme Court on the ground that it was improvidently removed. See FSM GCO 1992-2, § III(C).
Because this point may not be entirely clear to the parties, it is hereby ordered that the petitioner shall have until September 7, 1998 to file and serve its opposition to the plaintiff's motion to remand. The other defendant, the State of Chuuk, may, if it is so advised, also file and serve its views on the matter by September 7, 1998. The plaintiff may then file and serve any response by September 14, 1998. After that date, unless an enlargement of time has been moved for and granted, I will consider the matter submitted for my decision.
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