THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as Marar v. Chuuk ,
9 FSM Intrm. 313 (Chuuk 2000)

[9 FSM Intrm. 313]

ERICKSON MARAR,
Plaintiff,

vs.

CHUUK STATE GOVERNMENT,
Defendant.

CIVIL ACTION NO. 1999-1019

ORDER GRANTING PARTIAL SUMMARY JUDGMENT

Richard H. Benson
Associate Justice

Decided:  January 21, 2000

APPEARANCES:
For the Plaintiff:          Wesley Simina, Esq.
                                     P.O. Box 94
                                     Weno, Chuuk FM 96942

For the Defendant:     Joses Gallen, Esq.
                                     Acting Attorney General
                                     Office of the Chuuk Attorney General
                                     P.O. Box 189
                                     Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Civil Procedure ) Motions
     Failure to timely oppose a motion is deemed a consent to that motion, but a court still needs proper grounds before it can grant an unopposed motion.  Marar v. Chuuk, 9 FSM Intrm. 313, 314 (Chk. 2000).

Civil Procedure ) Summary Judgment
     A court must deny a motion for summary judgment unless it finds there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.  The court must view the facts presented and inferences made in the light most favorable to the nonmoving party, and the burden of showing a lack of triable issues of fact belongs to the moving party.  Marar v. Chuuk,

[9 FSM Intrm. 314]

9 FSM Intrm. 313, 314 (Chk. 2000).

Civil Procedure ) Pleadings
     General denials are disfavored, but when the pleader does so intend to controvert all its averments, including averments of the grounds upon which the court's jurisdiction depends, the pleader may do so by general denial subject to the obligations of honesty in pleading set forth in Rule 11.  Marar v. Chuuk, 9 FSM Intrm. 313, 314 n.1 (Chk. 2000).

Civil Procedure ) Summary Judgment
     When the moving party has made out a prima facie case that there are no triable issues of fact and that it is entitled to summary judgment as a matter of law, the nonmoving party cannot rely upon a general denial in its answer to overcome the affidavit and the documents produced by the moving party and may not rely on unsubstantiated denials of liability or inferences culled from the record to carry its burden, but must present some competent evidence that would be admissible at trial that there is a genuine issue of material fact.  Marar v. Chuuk, 9 FSM Intrm. 313, 314-15 (Chk. 2000).

Public Officers and Employees ) Chuuk
     A public employee who explained that he would be absent because he contested the demotion, was not absent without explanation as required by the Public Service regulations and statute for abandonment of his job.  Marar v. Chuuk, 9 FSM Intrm. 313, 315 (Chk. 2000).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     On December 29, 1999, Erickson Marar filed and served Plaintiff's Motion for Partial Summary Judgment.  No opposition has been filed.  Failure to timely oppose a motion is deemed a consent to that motion, Actouka v. Etpison, 1 FSM Intrm. 275, 276 (Pon. 1983) (relying on FSM Civ. R. 6(d)), but I still need proper grounds before I may grant an unopposed motion, Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994).

     "A court must deny a motion for summary judgment unless it finds there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.  The court must view the facts presented and inferences made in the light most favorable to the nonmoving party, and the burden of showing a lack of triable issues of fact belongs to the moving party."  Nanpei v. Kihara, 7 FSM Intrm. 319, 323 (App. 1995) (citing Adams v. Etscheit, 6 FSM Intrm. 580, 582 (App. 1994)).  "When the moving party has made out a prima facie case that there are no triable issues of fact and that it is entitled to summary judgment as a matter of law, the nonmoving party then has the burden to show by competent evidence that there is a triable material issue of fact."  Id. at 325.  The defendant's answer contains what amounts to a general denial.1  The state cannot rely upon such an

[9 FSM Intrm. 315]

answer to overcome the affidavit and the documents produced by the moving party.  The non-moving party may not rely on unsubstantiated denials of liability or inferences culled from the record to carry its burden, but must present some competent evidence that would be admissible at trial that there is a genuine issue of material fact.  FSM Social Sec. Admin. v. Weilbacher, 7 FSM Intrm. 442, 444 (Pon. 1996); Urban v. Salvador, 7 FSM Intrm. 29, 30 (Pon. 1995); Maruwa Shokai (Guam), Inc. v. Pyung Hwa 31, 6 FSM Intrm. 1, 4 (Pon. 1993).

     Marar's motion asks that I grant partial summary judgment that his demotion was unlawful and void; that he did not abandon his job and was dismissed in violation of his procedural due process rights; and that he is entitled to be reinstated to his former position as Program Coordinator III and to be paid his lost salary to date.

     The affidavit shows that the Education Department had a "staff reshuffling" which resulted in Marar being placed in different position at a lower pay level, that no notice or opportunity to be heard or to appeal the demotion was ever given, that Marar did not report to his new post, and that Marar, verbally and in writing, contested his demotion.  Concerning the termination for abandonment the affidavit states that Marar was not reporting to work because he was protesting his demotion and that he informed the Department of his reason for not reporting to work.

     I conclude that it is proper to grant partial summary judgment that Marar's demotion was unlawful and void because it was not implemented through the proper personnel procedures.  I also conclude that I may grant summary judgment that Marar did not abandon his job because he was not absent without explanation.  He had explained that he would be absent because he contested the demotion.  He therefore was not absent without explanation as required by the Public Service regulations and statute.  Cf. Klavasru v. Kosrae, 7 FSM Intrm. 86, 92 (Kos. 1995) (public employee, who supplied an explanation for her absence from work and who made clear, both before and after the absence that she did not intend to take permanent leave of her position, cannot be terminated for abandonment of office or disciplined without the statutory safeguard of notice and an opportunity to be heard).  By this ruling I do not endorse Marar's deliberate absence from work as a valid method to contest his demotion.

     I, however, cannot grant summary judgment at this time on the issues of whether he should be reinstated in his former position and whether he is entitled to that position's back pay to date.  I cannot yet be certain that there is no genuine issue of material fact and that Marar is entitled to judgment as a matter of law on these points.  The motion and its supporting affidavit fail to establish that this relief is justified.

     A pre-trial conference in this matter is therefore set for March 3, 2000 at 9:00 a.m.  At the conference, the parties shall each present a written list of witnesses it intends to call together with a summary of the expected testimony of each, and agreed statements in writing of the legal and factual issues to be resolved at trial. A trial date will then be set.
 
 
Footnote:
 
1.  General denials are disfavored and may in many instances be a violation of the attorney's obligation under Civil Procedure Rule 11.  The FSM Rules of Civil Procedure speak to this point: "[W]hen the pleader does so intend to controvert all its averments, including averments of the grounds upon which the court's jurisdiction depends, the pleader may do so by general denial subject to the obligations set forth in Rule 11."  FSM Civ. R. 8(b).  See also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 1265, at 402 (1990) ("[a] party interposing a general denial also is subject to the obligations of honesty in pleading set forth in Rule 11").
 
                                                                                                                                                                                                                                                                                                           
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