Cite as Etscheit v. Mix ,
6 FSM Intrm. 248 (Pohnpei 1993)

[6 FSM Intrm. 248]

and ROBERT ETSCHEIT JR., individually and as administrator





Andon L. Amaraich
Associate Justice

Hearing:  September 9, 1993
Decided:  November 10, 1993

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

For the Defendants:     Fredrick L. Ramp, Esq.
(Adams and Varner)    P.O. Box 1480
                                       Kolonia, Pohnpei FM 96941
For the Defendant:       Matt Mix, Esq. (in pro per)
                                       P.O. Box 143
                                       Kolonia, Pohnpei FM 96941

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Federalism ) Abstention and Certification
     The FSM Supreme Court has a constitutional duty to hear disputes wherein the parties are diverse, even if land issues are involved, although the court may abstain from exercising such

[6 FSM Intrm. 249]

jurisdiction on a case-by-case basis where other factors weighing in favor of abstention are present.  Etscheit v. Mix, 6 FSM Intrm. 248, 250 (Pon. 1993).

Civil Procedure ) Consolidation
     The  moving party bears the burden of persuading the court that consolidation of cases is desirable.  Etscheit v. Mix, 6 FSM Intrm. 248, 250 (Pon. 1993).

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ANDON L. AMARAICH, Associate Justice:
     A hearing on all pending motions was held in this matter on September 9, 1993.  The Court took under advisement defendant Mat Mix's Motion to Dismiss and plaintiff's Motion to Consolidate Actions 1993-049 and 1992-150.  It is hereby ordered that both motions are denied.  The Court sets forth its reasons in the Memorandum which follows.

     The defendant Mat Mix seeks dismissal of this action on two grounds:  lack of jurisdiction and a legal presumption in the FSM in favor of adjudicating land matters in state courts.  I address the arguments in turn.

     The plaintiffs allege diversity jurisdiction in this Court pursuant to article XI, section 6(b) of the FSM Constitution.  The plaintiffs as the party opposing dismissal for lack of jurisdiction bear the burden of proving jurisdictional facts. 2A James W. Moore et al., Moore's Federal Practice 12.07[2.-1] (2d ed. 1989).

     Defendant Mix asserts that diversity jurisdiction does not exist in fact in this case, although the parties appear to be diverse from the face of the complaint. Plaintiffs include both foreign citizens and one FSM citizen, who is a Pohnpei resident.  Defendants are all FSM citizens and Pohnpei residents.  Mr. Mix objects to the inclusion of the non-FSM citizen plaintiffs on grounds that they are not and can not be real parties in interest to this dispute.  The Court in considering the merits of a factual challenge to jurisdiction may review any competent evidence.  Id. 12.07[2.-1].

     At issue in this case is the ownership of parcel number 046-A-02 in Mpompw, Nett, where Mr. Mix resides.  Mr. Mix contends that none of the foreign citizen plaintiffs currently hold or could ever acquire any interest in this parcel.  The plaintiffs assert that the issue of ownership of property is still undecided and in fact constitutes one of the central issues being litigated in another case currently before this Court.

     It is noteworthy that Mr. Mix's co-defendants concur with the plaintiffs' view that the potential exists for a finding that the foreign citizens named in this action and Civil Action No. 1992-150 do have an extant interest in the land in question.  The Court takes judicial notice of the pleadings in Civil Action No. 1992-150 and finds that: (1) the property in dispute in this action is part of parcel number 046-A-02; (2) ownership of parcel 046-A-02 is one of the issues before the Court in Civil Action No. 1992-150; and (3) the Court has not dismissed or otherwise adjudicated

[6 FSM Intrm. 250]

the claims to the property of the foreign citizen plaintiffs in Civil Action No. 1992-150.  Therefore, I am persuaded that at this point in the litigation of both cases a possibility exists that the foreign citizen plaintiffs may be found to have an interest in parcel number 046-A-02.

     In concluding that the foreign citizen plaintiffs are potentially real parties in interest, I do not reach the argument of defendant Mix that the FSM and Pohnpei Constitutions preclude such plaintiffs from acquiring interests in land in Pohnpei. That issue may be raised again at a later time if it becomes necessary to determine whether any of the foreign citizen plaintiffs sought to acquire title to the property after the effective dates of the two constitutions.

     In denying the motion to dismiss, I note that the Court shall, on its own or the parties' motion, dismiss the action pursuant to FSM Civil Rule 12(h)(3) if it later appears that the parties are not diverse and the Court as a result lacks subject matter jurisdiction.

     Defendant Mix argues as an independent grounds for dismissal that a presumption exists in FSM jurisprudence that cases involving local land matters should be decided in state rather than national courts.  It is true that this Court has deferred adjudication of certain land disputes in favor of state courts and land commissions.  See, e.g., Kapas v. Church of Latter Day Saints, 6 FSM Intrm. 56, 60 (App. 1993), United Church of Christ v. Hamo, 4 FSM Intrm. 95, 111 (App. 1989), Ponape Transfer & Storage v. Federated Shipping Co., 4 FSM Intrm. 37, 39, 44 (Pon. 1989), Etpison v. Perman, 1 FSM Intrm. 405, 428-29 (Pon. 1984). However, this Court has also emphasized its responsibility under article XI, section 6(b) of the FSM Constitution to hear diversity disputes, even if land issues are involved.  Etscheit v. Adams, 5 FSM Intrm. 243, 246 (Pon. 1991); Ponape Transfer & Storage v. Federated Shipping Co., 4 FSM Intrm. 37, 44 (Pon. 1989).  There is no judicial, constitutional, or legislative rule that in all cases where land is concerned, the FSM Supreme Court must abstain or otherwise refrain from exercising jurisdiction.  The presence of certain factors on a case-by-case basis may influence the decision to abstain in land cases.  See, e.g., Ponape Transfer & Storage, 4 FSM Intrm. at 44-47.

     The case at bar presents issues of contract, tort, property, and attorney-client responsibility.  I do not find that the case is solely or even primarily a land dispute at this point in the litigation.  As the case progresses if the Court determines there are purely land-related issues remaining that would be more appropriately disposed of by state tribunals with expertise in such matters, the Court may consider abstention or certification of such issues at that time.

     The plaintiffs move to consolidate this action with Civil Action No. 1992-150 on the grounds that the two cases share a common nucleus of jurisdictional facts. Plaintiffs emphasize that the parties to the two actions are nearly identical, and that the ownership of parcel number 046-A-02 is at issue in both cases.  While true, I do not consider these two facts of themselves to weigh in favor of consolidating the cases.

     On a motion to consolidate, the moving party has the burden of persuading the Court that consolidation is desirable.  5 James W. Moore et al., Moore's Federal Practice 42.02[1] (2d ed. 1988).  In this matter all defendants oppose consolidation and the Court agrees with their arguments that consolidation would unduly complicate rather than simplify the litigation in both cases.

     The instant case presents a number of legal issues distinctly separate from those central to

[6 FSM Intrm. 251]

the partitioning of land in Civil Action No. 1992-150.  While the ultimate resolution of this action may be linked in part with the disposition of the partition case, combining the proceedings in these two matters would throw together in the same basket numerous unrelated questions of law and fact.  I see no benefit from adding more layers to the already complex web of claims to be resolved in Civil Action No. 1992-150.  Furthermore, there are other more efficient and practicable procedural measures available to the parties and the Court to ensure that any tangential relationship between this case and the partition case is preserved.  For these reasons, I decide that the cases will continue to proceed independently.

     The defendant Mat Mix's motion to dismiss this action is denied.  Mr. Mix will be allowed ten days from the date of service of this order to file his answer to the complaint.  The plaintiff's motion to consolidate this case with Civil Action No. 1992-150 is also denied.

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