Cite as Berman v. FSM Supreme Court ,
6 FSM Intrm. 109 (Pohnpei 1993)

[6 FSM Intrm. 109]






Andon L. Amaraich
Associate Justice

Hearing:  June 3, 1993
Decided:  June 10, 1993

For the Plaintiff:                Mary Berman, Esq. (in pro per)
                                           P.O. Box 163
                                           Kolonia, Pohnpei FM 96941

For the Defendant:           Douglas Juergens, Esq.
(FSM Supreme Court)     Chief of Litigation
                                           Office of the FSM Attorney General
                                           P.O. Box PS-105
                                           Palikir, Pohnpei FM  96941

[6 FSM Intrm. 110]

For the Defendant:           Daniel J. Berman, Esq.
(Kolonia Town)                 Rush, Moore, Craven, Sutton, Morry & Beh
                                           2000 Hawaii Tower
                                           745 Fort Street
                                           Honolulu, HI 96813

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Civil Procedure ) Res Judicata and Collateral Estoppel
     A party is precluded from rearguing, under another theory of liability, a claim it has already pursued to a final adjudication.  Berman v. FSM Supreme Court, 6 FSM Intrm. 109, 112 (Pon. 1993).

Civil Procedure ) Pleadings; Judgments ) Default
     Where a plaintiff files an amended complaint without leave of court and no motion for leave was ever filed the court may order the amended complaint stricken from the record.  An entry of default based on such stricken amended complaint will be set aside.  Berman v. FSM Supreme Court, 6 FSM Intrm. 109, 112-13 (Pon. 1993).

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ANDON L. AMARAICH, Associate Justice:
     A hearing on all pending motions in the above matter was held on June 3, 1993.  Pursuant to the following memorandum of decision, plaintiff's September 23, 1992 filing entitled "second amended complaint" is hereby stricken from the record, the default entry of the defendant FSM Supreme Court is hereby set aside, plaintiff's motion to reconsider is denied, and the remaining claims are hereby moot.  The case is dismissed.

     Plaintiff originally brought suit against the FSM Supreme Court, certain Pohnpei State agencies, and the Kolonia Town Government for alleged discriminatory practices and policies in relation to her privilege as a non-citizen to practice law in the FSM.  The Court abstained from deciding those issues that related to the State and to Kolonia Town.  It retained jurisdiction over the claims that this Court's Rules of Admission discriminated against non-citizens and that its grading of plaintiff's FSM Bar Examination was inaccurate.

     During the litigation, plaintiff amended her complaint once as a matter of course on October 9, 1991.  Subsequently, plaintiff moved to file a second amended complaint, which the Court allowed on August 26, 1992.

     On August 28, 1992, the Court (Justice Benson) issued a ruling that the Court's Rule of Admission which limited non-citizens to three attempts to pass the FSM Bar examination did

[6 FSM Intrm. 111]

discriminate against non-citizens and was a deprivation of constitutional rights. However, the Court held that plaintiff had failed to prove damages.  In a later conclusion of law, issued September 24, 1992, the Court found that plaintiff was not entitled to any damages, as the Chief Justice is immune in his rule-making authority.  Berman v. FSM Supreme Court (II), 5 FSM Intrm. 371, 373 (Pon. 1993).

     Prior to the September 24 conclusion of law, Justice Benson disqualified himself on claims 2, 3, and 4 of the second amended complaint.  Statement of Disqualification (Aug. 31, 1992).  Those claims were:  (2) that the Court's failure to re-evaluate her score for an alleged ungraded portion of the exam was a deprivation of rights; (3) that the failure to combine her scores from her 1990 and 1991 examinations was a deprivation of rights; (4) that the failure to allow her to appear pro hac vice was a deprivation of rights.

     On September 23, 1992, after the first ruling but before the conclusion of law, plaintiff filed another "second amended complaint."  This was actually a third amended complaint, essentially stating similar claims as the first and second amended complaints.  No motion for leave to file this third amended complaint was made.1

     On February 5, 1993, plaintiff filed two motions: a motion for default against the defendant FSM Supreme Court for failing to answer her third amended complaint, and a "motion to reconsider."  The motion to reconsider is actually a motion for relief from judgment under FSM Civil Rule 60(b).  It is based on the court's abstention from certain state issues against Kolonia Town.  Plaintiff alleges that the state court has not moved the case along and that, as a result, plaintiff continues to be forced to pay license fees which she should not have to pay.  She requests that the Court re-assert jurisdiction over the case and rule in her favor.

     The Court has already entered a declaratory judgment for the plaintiff that FSM Rule of Admission II(D) was discriminatory.  Therefore, that issue)issue 1 of the second amended complaint is res judicata.  Also, the Court has held that no damages are to be awarded because of judicial immunity in rule-making functions.  Berman (II), 5 FSM Intrm. at 373.  Therefore, plaintiff is not entitled to damages.

     At the hearing on June 3, 1993, plaintiff sought to argue that the defendant's liability in its enforcement capacity is still an issue.  This appears to be a novel claim, in that it is in neither the second nor third amended complaint.  Rather, plaintiff appears to have asserted this claim for the first time in her opposition to the defendant FSM Supreme Court's motion to set aside default entry.  Such a claim, as plaintiff sees it, would raise the issue of whether or not the defendant is liable for damages in its enforcement, as opposed to its rule-making capacity. Plaintiff argues that because the defendant adopted a U.S. case which makes the distinction between immunity in rule-making and liability in enforcement, the defendant must make an identical distinction as well.

     Thus, the issue of preclusion, or collateral estoppel, is raised.  The doctrine of collateral estoppel requires that a fact or question which was at issue in a suit, and was there judicially

[6 FSM Intrm. 112]

passed on by a court of competent jurisdiction, be conclusively settled by the judgment therein, as far as the parties to that litigation are concerned.  50 C.J.S. Judgments 686, at 141 (1947).  Therefore, once a judgment is rendered in a case, further litigation on issues related to the same determinations of fact are barred, and those claims and issues which are not litigated the first time are precluded from being raised after an adjudication.  The purpose of the doctrine is to prevent repetitive litigation and multiple determinations by the Court on the same issues and to preserve the finality of judgments rendered on matters properly before the Court.

     As applied here, the claim that the defendant is liable for damages in its enforcement capacity)as opposed to its rule-making capacity)is a claim arising from the same determinations made by the Court in its August 28, 1992 ruling. Yet, it was not pleaded by plaintiff in either her second amended complaint or her third amended complaint.  Plaintiff may not now assert such a claim after judgment has already been rendered.  That claim, and the issue of the defendant's liability in its enforcement capacity, can no longer be raised an are hereby precluded from this matter.

     Plaintiff moves for default judgment against the defendant, due to the defendant' failure to answer her third amended complaint filed on September 23, 1992.  The defendant's default was entered by the Clerk on March 23, 1993.

     The defendant has moved to set aside the default, on the basis that the Attorney General believed the matter adjudicated by the Court's September 2, 1992 conclusion of law, and that no service of the default motion was made by plaintiff.

     I find that the more significant issue is that of plaintiff's third amended complaint.  As stated above, that complaint, erroneously titled "second amended complaint" was filed on September 23, 1992.  It was accompanied by a motion to supplement which stated:  "Supplementary pleadings are allowed under FSM R.Civ.P. [sic] 15 when new facts have come to light since the previous pleading." Despite citation of the proper rule for amendment of the complaint, the motion seeks supplementation of plaintiff's position on damages.  Notwithstanding this procedural confusion, plaintiff seeks default judgment on her third amended complaint.

Rule 15
     FSM Civil Rule 15(a) allows for amended pleadings in four instances: (1) once, as a matter of course, anytime before a response is filed; (2) if no response is filed and the action is not on the Court calendar, i.e., scheduled for a hearing, then a party may amend within 20 days of serving the previous pleadings; (3) by leave of the Court, such leave is freely granted when justice so requires; and (4) by written consent of the opposing party.

     Rule 15(d) allows for supplemental pleadings upon a motion granted by the Court, reasonable notice, and just terms, when the pleading sets forth events which have occurred since the date of the prior pleading.

     Plaintiff's third amended complaint was filed without leave of the Court.  Unlike her second amended complaint, no motion for leave to file was made and none was granted by the Court.  
[6 FSM Intrm. 113]

Therefore, the third amended complaint was improperly filed and cannot be the basis for a default.  Plaintiff's September 23, 1992 filing, entitled "second amended complaint" is hereby stricken from the record.

     Wherefore, the default entry of the Court is hereby set aside and plaintiff's motion for default judgment is hereby denied.

     Plaintiff moves for reconsideration of the Court's abstention from issues of state law concerning Kolonia Town Government.  The motion is made pursuant to FSM Civil Rule 60(b) which applies to relief from judgment and is not applicable here.  Also, the motion to reconsider is based on the state court's failure to expedite the matter.  Plaintiff cites Gimnang v. Yap, 4 FSM Intrm. 212 (Yap 1990) for the proposition that delay by the state court is sufficient reason for this Court to refuse abstention.  However, in Gimnang, the Court refused to abstain because the Court itself, not the state court, had already held on to the case for too long and the case was likely to come before the FSM appellate division anyway.  No support is evident for the proposition that this Court may take back a case that it has abstained from because the state court has not expedited the case.  Expedience alone is an insufficient reason for this Court to retrieve jurisdiction over abstained upon claims.

     There remain three claims in this matter which have yet to be adjudicated. Those are the second, third, and fourth claims of the second amended complaint, stated above.  All three issues concern alleged errors in the grading of plaintiff's bar examination which resulted in her denial of a passing grade.  Judicial notice is taken of the fact that plaintiff has since passed the bar examination and is now an admitted member of the FSM Bar.  In view of plaintiff's current status and the fact that plaintiff is not entitled to damages for declaratory judgment in her favor, I find these remaining claims to be moot.  Accordingly, upon my own  motion, they are hereby dismissed.

     There remain no further claims to be litigated in the above action.  Wherefore the case is dismissed.

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1.  Plaintiff did file a "motion to supplement brief and reply to motion," in which she cites FSM Civil Rule 15 to amend her pleading.  However, the motion clearly does not request leave to file an amended complaint.