Cite as Oster v. Cholymay ,
7 FSM Intrm. 598 (Chuuk S. Ct. Tr. 1996)

[7 FSM Intrm. 598]

KARUO OSTER, et al., on behalf of themselves
and all other persons similarly situated,


FRANK CHOLYMAY, in his official capacity as
Acting Director of Treasury, and CHUUK STATE,

CSSC-CA-NO. 267-95


Richard H. Benson
Special Trial Court Justice

Decided:  September 11, 1996

For the Plaintiffs:          Charles Greenfield, Esq.
                                       Midasy Aisek, Esq.
                                       Micronesian Legal Services Corporation
                                       P.O. Box D
                                       Weno, Chuuk FM 96942

For the Defendants:     Ready Johnny, Esq.
                                       P.O. Box 754
                                       Weno, Chuuk FM 96942

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Civil Procedure ) Summary Judgment
     Partial judgment on a motion for judgment on the pleadings may be granted when the full argument allows the court to understand the parties' position and such a judgment promotes an expeditious disposition of matters before the court.  Oster v. Cholymay, 7 FSM Intrm. 598, 599 (Chk. S. Ct. Tr. 1996).

Constitutional Law ) Due Process
     Because a government employee's pay is a form of property a government cannot deprive the employee of without due process of law, a state's failure to pay to the allottees money withheld from employees' paychecks for allotments constitutes a government deprivation of the employees' property without due process.  Oster v. Cholymay, 7 FSM Intrm. 598, 599 (Chk. S. Ct. Tr. 1996).

*    *    *    *
[7 FSM Intrm. 599]

RICHARD H. BENSON, Special Trial Court Justice:
     This case comes before me on the plaintiffs' Motion for Judgment on the Pleadings.  The parties argued the motion on August 28, 1996.  The motion is granted.  My reasons follow.

     Plaintiffs moved for judgment on the pleadings pursuant to Chuuk State Supreme Court Rule of Civil Procedure 12(c).  The plaintiffs are a class comprising all those persons who were employed, either part time or full time, between May 1, 1995 and September 30, 1995 by the State of Chuuk, and who, during this time, had deductions, including allotments taken from their state paychecks, that the defendants failed to pay to the allottee creditors.  The plaintiffs' motion seeks a judgment that the defendants are liable for the unpaid allotments.  The plaintiffs acknowledge that the motion seeks only a partial adjudication in that it only asks judgment for liability to pay the allotments, not liability for further damages or an order directing payment.

     The defendants contend that Rule 12(c) motions are properly granted only when a judgment can be granted or denied on the entire complaint ) the Rule does not allow partial judgments.  For this proposition the defendants cite Damarlane v. United States, 6 FSM Intrm. 357, 359 (Pon. 1994).  In that case the general rule that judgment on the pleadings can be granted or denied only on the entire complaint was cited, but partial judgment was granted nonetheless because of "the full argument allow[ed the court] to understand the position of the parties and such a judgment promote[d] an expeditious disposition of matters placed before [the court]."  Id. (citing FSM Civ. R. 1; 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 1369, at 537 n.23 (2d ed. 1990)). That principle would seem to apply here as well.  I will thus consider whether the plaintiffs are entitled to the partial judgment they seek.

     The plaintiffs' claim arises from the failure of the defendants to pay to the allottees various allotments withheld from the plaintiffs' paychecks.  The plaintiffs advance several theories for the defendants' liability for these sums.  They allege conversion, violation of due process in taking the plaintiffs' property (their allotments) under both the Chuuk and FSM Constitutions, violation of the plaintiffs' civil rights under both the state constitution and 11 F.S.M.C. 701, breach of fiduciary duty, and breach of contract (to pay the allotments).  The plaintiffs will prevail on this motion if they are successful on any one of these theories.  The defendants contend that whether there were funds available with which to pay the allotments is a material issue of fact and that there is no liability if there were no funds.  The defendants in their answer, however, do admit that the plaintiffs are owed their wages and salaries that were not paid to the allottees.

     I conclude that defendants are liable because they have taken the plaintiffs' property ) the portion of their pay that was allotted to others ) without due process of law in violation of both the Chuuk and FSM Constitutions.  FSM Const. art. IV, 3; Chk. Const. art. III, 2.  A government employee's pay is a form of property a government cannot deprive the employee of without due process.  Semes v. FSM, 4 FSM Intrm. 66, 74 (App. 1989); Falcam v. FSM, 3 FSM Intrm. 194, 199-200 (Pon. 1987).  No notice was given that allotments were not going to be timely paid.  I conclude that whether funds were available to pay the allotments is not material to the issue of the state's liability for those sums.  (I do note that there were funds to pay later paychecks that could have paid earlier allotments and that there were funds expended in other ways.)

[7 FSM Intrm. 600]

     This order grants judgment for the plaintiffs on the issue of liability for the amount unpaid allotments only.  When and how this judgment is satisfied may be the subject of further proceedings.  Also I do not address any other possible claims of the plaintiffs.