THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as In re Estate of Hartman,
4 FSM Intrm. 386 (Chuuk 1989)

[4 FSM Intrm. 386]

IN THE MATTER OF THE
ESTATE OF FRITZ HARTMAN

FSM CIV. 1989-1023

MEMORANDUM OF DECISION

Before Richard H. Benson
Associate Justice
FSM Supreme Court
August 23, 1989

APPEARANCES:
For the Petitioner:     R. Barrie Michelsen
(Cecilia Hartman)     Attorney at Law
                                    Kolonia, Pohnpei  FSM 96941
  
For the Petitioner:     Maketo Robert
(Samuel Hartman)     Attorney at Law
                                    Kolonia, Pohnpei  FSM 96941

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HEADNOTE
Jurisdiction - Diversity
Jurisdiction - Removal
     Jurisdiction based upon diversity of citizenship between the parties is concurrent in the Supreme court and the national courts, and therefore a party to state court litigation where diversity exists has a constitutional right to invoke the jurisdiction of the national court.  In re Estate of Hartman, 4 FSM Intrm. 386, 387 (Chk. 1989).

[4 FSM Intrm. 387]

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This matter came before the court on the motion of Cecilia Hartman for the removal of probate proceedings from the Truk State Court to this court on the ground of the diversity of citizenship of the two petitioners seeking appointment as personal representatives of the deceased to administer his estate.  The motion is opposed by Samuel A. Hartman, the second petitioner for appointment.  The parties concede that the citizenship of the parties is diverse. The motion to remove the case from the Truk State Court was granted on August 18, 1989.  This memorandum sets forth the reasoning of the court.

     The FSM Constitution provides (in the part relative to the parties of this motion) that, "The national courts, including the trial division of the Supreme Court, have concurrent original jurisdiction in ... disputes between ... a state or a citizen thereof, and a foreign ... citizen ..."  FSM Const. art. XI, 6(b).  The appellate division of this court has held that diversity jurisdiction is concurrent as between national courts.  Hawk v. Pohnpei, 4 FSM Intrm. 85, 89 (App. 1989). The appellate division stated, "No jurisdiction is conferred on state courts by article XI, section 6(b) but neither does diversity jurisdiction of section 6(b) preclude state courts from acting under state law, unless or until a party to the litigation invokes national court jurisdiction."  Id.

     Samuel A. Hartman did not discuss the binding nature of the Hawk decision on this court.  The Hawk decision approved the reasoning of the trial division case of Bank of Guam v. Semes, 3 FSM Intrm. 370 (Pon. 1988).  The court there concluded that concurrent jurisdiction in diversity cases did not include state courts.  The conclusion was based on an examination.  The proposal before the Convention was that "The national courts, trial division of the Supreme Court, and state and local courts have concurrent original jurisdiction in " diversity cases. This was amended on the floor of the Convention to eliminate "state and local courts."  The history of article XI, section 6(b) shows that diversity jurisdiction is concurrent in the Supreme Court and the national courts, not with national and state courts.  Bank of Guam v. Semes, 3 FSM Intrm. at 374-76.  The court concluded at page 379 that "Parties to such a dispute [diversity case] have a constitutional right to invoke the jurisdiction of a national court and may not be forced to litigate a section 6(b) case in a non-national court."

     It is the obligation of this court and all others to uphold this constitutional right. U Corp. v. Salik, 3 FSM Intrm. 389, 392 (Pon. 1988).

     Because of the binding precedent of Hawk the court has no choice but to grant the motion.

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