Cite as Damarlane v. United States,
7 FSM Intrm. 350 (Pon. 1995)

[7 FSM Intrm. 350]



UNITED STATES OF AMERICA, on its own behalf
and in the place of the GOVERNMENT OF THE


Richard H. Benson
Associate Justice

Decided:  December 15, 1995

For the Plaintiffs:        Mary Berman, Esq.
                                     P.O. Box 163
                                     Kolonia, Pohnpei FM 96941

For the Defendant:     Daniel J. Berman, Esq.
(United States)           Rush, Moore, Craven, Sutton, Morry & Beh
                                     745 Fort Street
                                     Honolulu, HI 96813-3862

For the Defendant:     Carole Rafferty, Esq.
(FSM)                          Assistant Attorney General
                                     Office of the FSM Attorney General
                                     P.O. Box PS-105
                                     Palikir, Pohnpei FM 96941
[7 FSM Intrm. 351]

For the Defendant:     Arthur R. Wiedinger, Jr., Esq.
(Pohnpei & PTA)        Assistant Attorney General
                                      Office of Pohnpei Attorney General
                                      P.O. Box 1555
                                      Kolonia, Pohnpei 96941

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Judgments ) Relief from Judgment
     Relief from judgment will be denied when the relief sought is for someone not a party.  Damarlane v. United States, 7 FSM Intrm. 350, 352-53 (Pon. 1995).

Civil Procedure ) Joinder
     Although joinder may be permitted at any stage of the proceedings on such terms as are just, a person will not be joined as a plaintiff after trial when the plaintiffs were aware of that person's circumstance for four years of the litigation, that person had been a party defendant for a time, and there was no showing that that person's ability to protect his interest was impaired or impeded. Damarlane v. United States, 7 FSM Intrm. 350, 353 (Pon. 1995).

Civil Procedure ) Pleadings
     A complaint cannot be amended to include allegations already ruled against on summary judgment.  Damarlane v. United States, 7 FSM Intrm. 350, 353 (Pon. 1995).

Civil Procedure ) Res Judicata and Collateral Estoppel
     When defendants have been granted judgment after trial, a codefendant severed for trial may be granted judgment on the same grounds through the doctrine of issue preclusion (collateral estoppel) or the doctrine of law of the case.  Damarlane v. United States, 7 FSM Intrm. 350, 354 (Pon. 1995).

Civil Procedure ) Dismissal
     Dismissal may be ordered when plaintiffs have not complied with a lesser sanction designed to relieve prejudice to a defendant caused by plaintiffs' fault.  Damarlane v. United States, 7 FSM Intrm. 350, 354-55 (Pon. 1995).

Civil Procedure ) Joinder
     No one is rendered an indispensable party who must be joined merely because if he is not his claim is time-barred.  Damarlane v. United States, 7 FSM Intrm. 350, 355 (Pon. 1995).

Civil Procedure ) Pleadings
     A complaint cannot be amended after trial when the movants make no showing at all what it was that was tried by express or implied consent of the parties that would justify the amendment.  Damarlane v. United States, 7 FSM Intrm. 350, 356 (Pon. 1995).

Civil Procedure ) Sanctions
     An attorney may be sanctioned under Rule 11 when, although citing the correct rule, she makes no attempt to demonstrate how the circumstances meet the provisions of that rule, her position is contrary to her earlier position, and she repeatedly misstates the court's conclusions; when a motion for reconsideration raises matters already decided and offers no new arguments; and when everything a posttrial motion to amend the complaint seeks to add are matters already adjudicated against the plaintiffs.  Damarlane v. United States, 7 FSM Intrm. 350, 356-57 (Pon. 1995).

[7 FSM Intrm. 352]
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RICHARD H. BENSON, Associate Justice:
     The several motions before me arise from the following earlier proceedings:

     The plaintiffs filed their required pretrial statement on May 9, 1995.  The motion of the United States,1 filed June 7, 1995, to strike the statement was granted by an order entered July 20, 1995.

     Upon the call of the case for trial on July 20, 1995, the United States represented that it was unable to properly proceed to trial without a pretrial statement setting out the plaintiffs' case against it, and moved for a dismissal.  The relief the United States was given was severance of its case from that of codefendants, pursuant to Rule 21, and the plaintiffs were ordered, as a sanction, to pay the appearance expenses of counsel for the United States, by a certain date.  Failing this, the United States could move for a Rule 41(b) dismissal.

     The case proceeded to trial against all other defendants and resulted in judgments in their favor.

     All the motions have been carefully studied, researched and considered.  In each, the opposing party or parties have timely filed responses in opposition.

     The plaintiffs filed the following motions on October 16, 1995:

     1.  that I reconsider my pretrial order which limited taking claims, relying on Rule 60(b) and asserting error in not joining Joaquim Cantero and not granting damages for loss of riparian rights;
     2.  for an order joining Joaquim Cantero as a plaintiff, relying on Rule 21 and Rule 19(a)(2)(i); and

     3.  for leave to amend their complaint to allege loss of riparian rights, relying on Rule 15(a).

A.  Plaintiffs' Rule 60(b) Motion
     The plaintiffs ask that I not dismiss the case because Joaquim Cantero is entitled to damages and that an award for loss of riparian rights is warranted; that I reconsider my order July 19 which limited the items for which proof of a taking could be introduced, and permit proof of loss of riparian rights.

     The motion is denied for the following reasons:

[7 FSM Intrm. 353]

     1.  Joaquim Cantero is not a party;

     2.  Nothing has been shown that would justify vacating or amending my order dated July 19.  The plaintiffs' claim for a loss of riparian rights appears to be based on Marine and Fresh Water Quality Standards ) a matter which was before me and argued when I made the July 19 order; and

     3.  My oral order of July 20, entered in writing on August 18, states that "Plaintiffs may proceed against Defendants United States of America and Trust Territory of the Pacific Islands provided that Plaintiffs make payment [of the sanction]."  Although the time within which to make payment was enlarged upon my own motion, payment has not been made.  The plaintiffs are thus not entitled to proceed against the United States as they have through this motion.

B.  Plaintiffs' Motion to Join Joaquim Cantero
     The plaintiffs seek an order joining Joaquim Cantero as a party plaintiff.  They base the motion on Rule 21 and Rule 19(a)(2)(i).

     The motion is denied.

     1.  Rule 21 permits joinder at any stage of the proceedings on such terms as are just.  I cannot find any justification that would warrant joinder at this stage.  The plaintiffs have been aware of the circumstances of Joaquim Cantero for well over four of the five years this case has been pending, a matter which is reflected in the record.  And over four years ago the plaintiffs, for a time, had joined Joaquim Cantero as a party defendant.

     2.  Rule 19(a)(2)(i) requires the joinder in a case in which the person's absence would "impair or impede the person's ability to protect that interest."  Rule 19 protects the indispensable party.  There is no showing at all that Joaquim Cantero's ability to protect his interest was impaired or impeded at any time, either before or after the filing of this case.

     3.  Plaintiffs have not complied with my sanction order.

C.  Plaintiffs' Motion to Amend Complaint
     The plaintiffs want to amend and allege loss of riparian rights.  The memorandum in support of this motion confuses amendments made before and made after trial.  Trial has not been held as to the United States.

     The motion is denied.

     1.  The issue of riparian rights was before me when I issued my order of July 19, 1995, entered July 20, 1995, which decided the United States's motion for summary judgment.  That decision, which does not allow loss of riparian rights as an instance of taking, is the law of the case.

     2.  The plaintiffs have not paid the sanction.  The effect of this is already stated.

     The United States filed the following motions:

     1.  to dismiss, relying on Rule 12(b)(6), based on issue preclusion, filed August 30, 1995; and

[7 FSM Intrm. 354]

     2.  to dismiss, relying on Rule 41(b), based on the failure of the plaintiffs to timely pay a sanction, filed October 9, 1995.

A.  United States' Motion to Dismiss (Rule 12(b)(6))
     One count of the 13-count Third Amended Complaint, Count VI, remained to be tried as to this defendant on July 20, 1995.  The defendant FSM was a codefendant as to this count.  As noted above, the case against the United States was severed on July 20, 1995.  The plaintiffs proceeded to trial against all other defendants.

     The judgment was entered in favor of the FSM as to Count VI on the bases (1) that there was no taking of any of the plaintiffs' property interests, (2) that even if Pohnpei State or Pohnpei Transportation Authority had taken property of the plaintiffs, there was no causal connection established between the alleged failure of the FSM to administer environmental laws and resulting damage, and (3) that no monetary damages are available for failure to properly administer environmental laws.  (The plaintiffs' taking claim (Count X) against Pohnpei State and Pohnpei Transportation Authority was also decided adverse to the plaintiffs by my finding that no taking had been proven.)

     The motion of the United States contends that the doctrine of issue preclusion (also sometimes referred to as collateral estoppel) bars relitigation of the same allegations against the United States.  The United States's memorandum in support of the doctrine analyzes its elements and applies those elements to this case.  The plaintiffs' memorandum in opposition fails to discuss the doctrine.

     The motion of the United States pursuant to Rule 12(b)(6) is granted.  I note that the law of the case doctrine serves the same end and is based on the same policy as issue preclusion.  It may not be applicable here, however, since a final judgment is involved, but it would have yielded the same result.

B.  United States's Motion to Dismiss (Rule 41(b))
     This motion is based upon the plaintiffs' failure to pay the sanction imposed on July 20, 1995.

     On July 20, 1995, the dismissal sought by the United States was considered too harsh.  A lesser sanction was imposed in order to relieve the United States of the prejudice caused by the plaintiffs' failure (for the second time) to submit a proper pretrial statement.  The travel costs of the counsel for the United States were to be paid within 45 days.  The plaintiffs were advised that the failure to pay rendered the case against the United States subject to a dismissal pursuant to Rule 41(b).

     This order was made orally on July 20, 1995, and entered in writing on August 18, 1995.  As entered, the amount of the sanction was set at $1,636.95, and the time for payment enlarged to October 2, 1995.  The plaintiffs have not paid the sanction, have not made a request for an enlargement within which to pay, nor made any indication they intend to pay.

     The plaintiffs' memorandum in opposition to this motion asserts indigence by representations and by counsel's affidavit.  The affidavit states at length the plaintiffs' attorney's own circumstances and that she is unemployed, and that her husband's earnings are insufficient to pay the sanction.  (Counsel's husband is one of the plaintiffs.)  As to the others, the affidavit of counsel only says, "The plaintiff-landowners at Mensenpal do not have resources to pay the sanction."

     The plaintiffs therefore contend that complying with the sanction is not within their control.  They further state that dismissal is too harsh a sanction for the fault of their attorney.  Plaintiffs support this point with authorities.  Those authorities, which mandate that dismissal should not be ordered if

[7 FSM Intrm. 355]
a lesser sanction will cure the prejudice, are in agreement with the history of this case.  Dismissal was too harsh, and thus a lesser sanction was imposed with a specified time within which to comply.  That time has now long passed.  Plaintiffs have not complied.

     The assertion of indigence is troubling, even though couched in the most general of terms.  (The terms are further weakened when the large number of plaintiffs is considered.)

     The sanction was imposed only after a second pretrial statement was stricken, a statement which did not conform to the essentials required by the court order, and which included claims already ruled upon through pretrial motions.  Further, the prejudice to the United States by permitting the plaintiffs to prosecute their case without any requirement to rectify the loss occasioned by their fault has to be considered.

     The motion to dismiss is thus granted.  Let judgment be entered.

     The plaintiffs filed the following motions on October 16, 1995, as to defendants FSM, Pohnpei State and Pohnpei Transportation Authority (PTA):

     1.  to join Joaquim Cantero as a party plaintiff.  This motion and the supporting memorandum are identical to the motion filed as to the United States, decided above, except it recites the procedure for its handling since the cases against these defendants are on appeal;

     2.  to reconsider my order of July 19, 1995, which was entered July 20, 1995, and amend it by permitting loss of riparian rights as an element of the taking.  The plaintiffs then ask that I award damages for this loss and award damages to Joaquim Cantero for the alleged taking of an easement across his land.  This motion parallels that of the plaintiffs against the United States; and

     3.  to amend the complaint.  The motion and the memorandum in support of it are not clear as to what relief is being asked.  A review of the proposed amended complaint does not assist.  It appears that no new relief is sought.
     The matter has been considered by me.  I conclude the motions must properly be denied.

     1.  Joinder.  The motion is based on Rule 19(a)(2)(i).  As stated earlier in this order, Joaquim Cantero is not an indispensable party.

     The plaintiffs contend that he became a necessary party when, at the conclusion of the case, the court held that the easement was taken by the government on Joaquim Cantero's land.  That is not a correct statement of what the court found.  The court found that the easement complained of was not on the plaintiffs' land and but on Joaquim Cantero's.
     Further, the plaintiffs frankly admit that the reason for the requested joinder is that otherwise Joaquim Cantero's claims for the alleged taking of the easement would be time-barred.  Assuming that this is true, plaintiffs still must bring the motion within the rules of procedure.  They have failed to do this.  No authority is suggested that the passage of time alone renders one an indispensable party.

     2.  Reconsideration.  The plaintiffs request first that I amend my order of July 19, 1995, which was entered July 20, 1995.  I assume that the order being referred to (five were dated and entered simultaneously) is my order deciding Pohnpei State's and PTA's Motion for Judgment on the Pleadings

[7 FSM Intrm. 356]

since the plaintiffs' memorandum recites the four instances of taking which may be proceeded upon.  The plaintiffs present no new legal basis to justify reconsideration of this issue and so it must be denied.

     As to the FSM on the same issue of whether to amend to consider riparian rights, the taking allegation as to the FSM is that it "allowed unpermitted earthmoving."  Count VI.  The only entities conducting earthmoving in this case are Pohnpei State and PTA.  Thus the limitation to four taking instances imposed on Pohnpei State and PTA directly concerns the FSM.  That is, under the "allowed" allegation, only the four instances were actionable.  Thus, as to the FSM, the motion (as to this issue of riparian rights) must also be denied.  Again the plaintiffs have not given any justification for the reconsideration they seek.

     I add that the matter was repeatedly and thoroughly considered prior to trial.  On July 4, 1995, the plaintiffs filed their motion for summary judgment which sought, in part, judgment that the defendants were liable for damages because of the destruction of the plaintiffs' riparian rights.  The motion was denied by an order dated July 19, 1995, entered July 20, 1995.

     The second aspect of the motion is that I award damages to Joaquim Cantero for the alleged taking of the easement.  The motion is denied; that Joaquim Cantero is not a party suffices as a reason.

     3.  Amendment of the Complaint.  The plaintiffs' proposed amendment is a restatement of the taking allegations found in the Third Amendment Complaint. Additional relief is prayed for, for instance, a permanent injunction and an environmental impact statement.  But such relief had been sought earlier in this action.

     The motion is made after the judgment on the merits has been entered.  Thus Civil Rule 15(b) prevails.  The plaintiffs fail to make any showing at all what it is that was "tried by express or implied consent of the parties" which would justify amendment.  Therefore, having failed to meet the standard of the applicable rule, the motion must be denied.

     By its motion filed November 7, 1995, the FSM requests the court to impose sanctions upon plaintiffs' counsel, Mary Berman, for filing the three motions described in section III above.  The motion is made pursuant to Rule 11 of the FSM Rules of Civil Procedure which reads, in pertinent part, as follows:

Every paper of a party represented by an attorney . . . shall be signed by at least one attorney . . . of record . . . .  The signature of an attorney . . . constitutes a certificate by the signer . . . that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law . . . .  If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction . . . .

     The motion for sanctions as to each of the three motions disposed of in III above is granted.

     1.  Joinder of Joaquim Cantero as a Party Plaintiff.  I cannot find that the Rule 11 standard has been met as to this motion.  In the motion the plaintiffs cite the correct rule and yet no attempt is made to demonstrate how the circumstances of Joaquim Cantero meet the provisions of that rule.  On its

[7 FSM Intrm. 357]

face the motion reveals that there could not be an objective belief that Joaquim Cantero was indispensable.

     That is sufficient in deciding the motion to join.  When considering sanctions I also consider first that the motion represents a position contrary to counsel's position during the course of the trial.  During trial the defendants moved for dismissal on the ground that the plaintiffs had failed to join an indispensable party, namely, Joaquim Cantero.  Plaintiffs' counsel opposed the motion.

     I consider secondly that counsel repeatedly misstates the court's conclusion regarding the access easement.

     2.  Reconsideration under Rule 60(b).  As to amending the judgment to award damages for the destruction of riparian rights, sanctions are appropriate because the motion raises a matter earlier decided (that riparian rights are not a instance of taking) and offers no new legal argument to justify the amendment.  Thus again there was no objective reasonable inquiry as to whether it was warranted by existing law or a good faith argument for its extension, modification, or reversal.

     Concerning counsel's allegation that I "overlooked" this instance of taking it is important to note that the Appellate Division of the Pohnpei Supreme Court decided this question.  Damarlane v. United States, 7 FSM Intrm. 56 (Pon. S. Ct. App. 1995).  That decision is a part of this case, and I announced during the course of the trial that I would follow its holdings.

     3.  Amend the Complaint.  This motion makes no showing or any attempt to show that the applicable rule of civil procedure warranted the amendment. Everything in the proposed amended complaint, including the relief prayed for, are matters already adjudicated against the plaintiffs.

     Under such circumstances sanctions for filing are appropriate.

     For the reasons stated, and repeating the rulings given, the six motions of the plaintiffs are denied, and the two motions of the United States for dismissal and the one motion of the FSM for sanctions are granted.

     Counsel for the plaintiffs shall appear before me in Palikir at 11:00 o'clock a.m. Tuesday, January 16, 1996, at which time an appropriate non-monetary sanction shall be imposed for the violations of Rule 11.

     Pending further order of the court the plaintiffs shall not file anything further in this case in the trial division without first obtaining leave of the court.

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1.  Throughout this order the defendant "United States" means the United States of America, on its own behalf and in the place of the Government of the Trust Territory of the Pacific Islands.