May 27, 1992
TRANSFER OF CASES BETWEEN STATE AND NATIONAL COURTS
The Constitution of the Federated States of Micronesia places in the FSM Supreme Court primary jurisdiction over cases which, upon consent of the litigants, may also fall within the jurisdiction of state courts. Moreover, upon occasion cases which fall within the exclusive jurisdiction of this court may erroneously be filed with other courts. These kinds of cases may frequently require interplay, and transfer of case, between the state and national courts.
This General Court Order 1992-2 is therefore adopted, pursuant to the power granted to the Chief Justice by article XI, section 9(d) of the Constitution to govern the transfer of cases between state and national courts and to establish procedures which will permit such litigation to proceed expeditiously with a minimum of confusion.
I. Actions Removable Generally.
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.
II. Procedure for Removal.
A. A party desiring to remove any civil action from a state court shall file in the trial division of the FSM Supreme Court a verified petition containing a short and plain statement of the facts which entitle the party to removal together with a copy of all process, pleadings and orders served upon or by the party in such action.
B. The petition for removal of any civil action shall be filed within sixty days after the receipt by any party, through service or otherwise, of 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.
C. The trial division, or any justice thereof, may require a petition for removal of an action to be accompanied by a bond with good and sufficient surety conditioned that the party seeking removal will pay all costs and disbursements incurred by reason of the removal proceedings should it be determined that the case was not removable or was improperly removed.
D. Promptly after the filing of a petition for removal, the party shall give written notice thereof to all parties and shall file a copy of the petition with the clerk of the state court. This shall effect the removal. The state court then shall proceed no further unless and until the case is remanded.
III. Procedure After Removal Generally.
A. In any case removed from a state court, the trial division of the FSM Supreme Court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the state court or otherwise.
B. The trial division of the FSM Supreme Court may require the petitioner to file with the clerk copies of all records and proceedings in the sate court or may cause the same to be brought before it by writ of certiorari issued to the state court.
C. If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, or that the removing party had previously waived its right to remain as determined by the previous decisions of the this Court, the trial division of the Supreme Court shall remand the case, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the state court. The state court may thereupon proceed with the case.
D. This General Court Order 1992-2 is not intended to diminish or enlarge the power of the FSM Supreme Court to abstain from exercising power over litigation which falls within the Court's jurisdiction or to certify issues or questions to an appellate division of a state court for decision.
E. An order remanding a case to the state court from which it was removed may be reviewable on appeal to the appellate division of the FSM Supreme Court pursuant to Rule 5(a) of the FSM Rules of Appellate Procedure or on appeal from the final judgment of the state court.
IV. Process After Removal.
In all cases removed from any state court to the trial division of the FSM Supreme Court in which any one or more of the parties has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in the trial division of the FSM Supreme Court.
V. State Court Record Supplied.
Where a party is entitled to copies of the records and proceedings in any action in a state court, to be used in the trial division of the FSM Supreme Court, and the clerk of such state court, upon request, and the payment or tender of the legal fees, fails to deliver certified copies, the trial division of the FSM Supreme Court may, on receipt of an affidavit reciting such facts, direct such record to be supplied by affidavit or otherwise. Thereupon such proceedings, trial and judgment may be had in the trial division of the FSM Supreme Court, and all such process awarded, as if certified copies had been filed in the trial division of the FSM Supreme Court.
VI. Attachment or Sequestration; Security; State Court Injunctions.
Whenever any action is removed from a state court to the trial division of the FSM Supreme Court, any attachment or sequestration of the goods or estate of any party in the action in the state court shall hold the goods or estate to answer the final judgment or decree in the same manner as they would have been held to answer final judgment or decree had it been rendered by the state court.
All bonds, undertakings or security given by either party in such action prior to its removal shall remain valid and effectual notwithstanding such removal.
All injunctions, orders and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the trial division of the FSM Supreme Court.
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