THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Berman v. FSM Supreme Court (II),
7 FSM Intrm. 8 (App. 1995)

[7 FSM Intrm. 11]
MARY BERMAN,
Appellant,

vs.

FSM SUPREME COURT,
Appellee.

APPEAL CASE NO. P8-1993

OPINION
Argued:  April 25, 1994
Decided:  January 25, 1995

BEFORE:
     Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
     Hon. Edwel H. Santos, Temporary Justice, FSM Supreme Court*
     Hon. Keske S. Marar, Temporary Justice, FSM Supreme Court**

     *Chief Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
     **Associate Justice, Chuuk State Supreme Court, Weno, Chuuk

APPEARANCES:
For the Appellant:     Mary Berman, Esq. (pro se)
                                    P.O. Box 163
                                    Kolonia, Pohnpei FM 96941

[7 FSM Intrm. 12]
 
For the Appellee:      Michael J. Brady (on brief)
                                    Susan Bussey, Esq. (argued)
                                    Chief of Litigation
                                    Office of the FSM Attorney General
                                    P.O. Box PS-105
                                    Palikir, Pohnpei FM 96941

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HEADNOTES
Civil Procedure ) Pleadings
     When a court has granted leave to file an amended complaint attached to movant's motion to amend, and the movant later files a different amended complaint, no leave has been granted for that complaint and its filing is improper.  Berman v. FSM Supreme Court (II), 7 FSM Intrm. 11, 15 (App. 1995).

Civil Procedure ) Pleadings
     An amended pleading, which is complete in itself and which does not refer to or adopt a former pleading as a part of it, supersedes the former pleading.  Berman v. FSM Supreme Court (II), 7 FSM Intrm. 11, 15 (App. 1995).

Civil Procedure ) Res Judicata and Collateral Estoppel
     The doctrine of collateral estoppel provides that a right, question, or fact which is distinctly put in issue and directly determined as a ground of recovery by a court of competent jurisdiction cannot be disputed in a subsequent action between the same parties, even if the subsequent action is on a different cause of action.  The prior judgment is not, however, conclusive as to matters which might have been, but were not, litigated and determined in the prior action.  Berman v. FSM Supreme Court (II), 7 FSM Intrm. 11, 16 (App. 1995).

Civil Procedure ) Res Judicata and Collateral Estoppel
     Under the doctrine of res judicata a judgment entered in a cause of action conclusively settles that cause of action as to all matters that were or might have been litigated and adjudged therein. The doctrine exists to ensure efficient litigation and use of judicial resources, and to promote the reliability and certainty of judgments.  Berman v. FSM Supreme Court (II), 7 FSM Intrm. 11, 16 (App. 1995).

Civil Procedure ) Res Judicata and Collateral Estoppel
     While the doctrine of res judicata formally addresses situations involving prior and subsequent lawsuits, its reasoning and purpose apply with equal force where a litigant attempts to revisit an earlier phase of a lawsuit that has already been adjudged.  Berman v. FSM Supreme Court (II), 7 FSM Intrm. 11, 16 (App. 1995).

Judgment ) Default Judgments
     An improperly filed amended complaint cannot serve as the basis for a default judgment. Berman v. FSM Supreme Court (II), 7 FSM Intrm. 11, 16 (App. 1995).

Constitutional Law ) Case or Dispute ) Mootness
     A claim becomes moot when the parties lack a legally cognizable interest in the outcome.  If an appellate court finds that any relief it could grant would be ineffectual, it must treat the case as moot.  Berman v. FSM Supreme Court (II), 7 FSM Intrm. 11, 16 (App. 1995).

[7 FSM Intrm. 13]

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COURT'S OPINION
MARTIN G. YINUG, Associate Justice:
     This is an appeal from a trial division order entered June 10, 1993. Appellant Mary Berman challenges the Trial Division's rulings that she filed an amendment to her complaint without obtaining necessary leave of court, that she was estopped from raising a damages issue by an earlier ruling on damages, that a default entered in her favor be set aside, and that three of her four claims be dismissed as moot.  The Trial Division's order is affirmed on each issue.

Facts and Procedural History
     Mary Berman sued the FSM Supreme Court alleging that the Court's Rules of Admission discriminated unconstitutionally against non-citizens and that its grading of her FSM Bar Examination was inaccurate and violative of her rights.

     She amended her complaint for the first time on October 9, 1991.  On June 6, 1992, she filed a motion to amend her complaint a second time, and with that motion filed a document titled "Second Amended Complaint."  See FSM Civ. R. 15(a).  In the June 6 motion she requested "leave to file the attached second amended complaint."  On June 26, 1992, the case first came to trial before Justice Richard H. Benson upon Ms. Berman's first amended complaint.

     On August 28, 1992, Justice Benson ruled on the first claim contained in her first amended complaint, holding that the FSM Supreme Court's Rule of Admission was unconstitutional, but that Ms. Berman had failed to prove damages.  Berman v. FSM Supreme Court (I), 5 FSM Intrm. 364 (Pon. 1992).  On the same day, Justice Benson issued an order granting the June 6 motion to amend.

     Shortly thereafter, having already disposed of the first claim raised in Ms. Berman's second amended complaint through his earlier ruling on the first amended complaint, on August 31, 1992, Justice Benson disqualified himself from claims 2, 3 and 4 of the second amended complaint.

     On September 23, 1992, Ms. Berman filed another document entitled "Second Amended Complaint."  This second "Second Amended Complaint" was different from the first "Second Amended Complaint" that she had filed on June 6, 1992. The FSM Supreme Court never answered the second "Second Amended Complaint."

     On September 24, 1992, Justice Benson amended his earlier ruling with a conclusion of law finding that Appellant was not entitled to damages as the Chief Justice of the FSM Supreme Court was immune in his rule-making capacity.  Berman v. FSM Supreme Court (II), 5 FSM Intrm. 371 (Pon. 1992).

     When the FSM Supreme Court did not answer her second "Second Amended Complaint," Ms. Berman on February 5, 1993, filed a Motion for Entry of Default. The Court Clerk entered a default against the FSM Supreme Court on March 23, 1993.  On March 26, 1993, the FSM Supreme Court moved to set aside the entry of default.

     At the June 3, 1993, hearing on the motion to set aside default, Justice Andon L. Amaraich now presiding, Ms. Berman argued that the FSM Supreme Court's liability in its rule-enforcement capacity, as opposed to its rule-making capacity, was still an issue.

[7 FSM Intrm. 14]

     In its June 10, 1993, Order and Memorandum of Decision the Trial Court noted that the issue of enforcement-capacity liability had not appeared in Appellant's complaint nor had it been argued before Justice Benson.  The Court then held that the issue was precluded from litigation via the doctrine of collateral estoppel by Justice Benson's earlier ruling on the Chief Justice's liability in his rule-making capacity.  Berman v. FSM Supreme Court, 6 FSM Intrm. 109, 111-12 (Pon. 1993).

     The Trial Court also found that Mary Berman's second "Second Amended Complaint" was actually an attempted third amended complaint for which leave to file had been neither sought nor granted.  The Court thus held that the second "Second Amended Complaint" had not been properly filed and could not serve as a basis for default.  The September 23, 1992 filing was ordered stricken from the record, and the FSM Supreme Court's motion to set aside entry of default was granted.  Id. at 112-13.

     Finally, reasoning that as Mary Berman was not entitled to damages and had been admitted to the FSM bar, the Trial Court on its own motion dismissed as moot claims 2, 3 and 4 of the first "Second Amended Complaint."  Id. at 113.

Analysis
I.
     Appellant Mary Berman phrases the first issue raised before us as follows: Did the Trial Court err in finding that no motion for leave to file the amended complaint was made?  What the Trial Court actually found in its June 10, 1993, order was that no leave had been granted for the second "Second Amended Complaint" filed by Ms. Berman.  We take that to be the first issue Appellant contests on appeal.

     In support of her position that the Trial Court erred, Appellant recounts to this Court that on June 11, 1992, she filed both a motion to amend her complaint and copy of a "proposed Second Amended Complaint."  She notes that on August 28, 1992, the Court ordered that "the second amended complaint may be duly filed and served."  Appellant then recalls that she duly filed and served a second amended complaint on September 23, 1992, and concludes that the Trial Court was therefore mistaken in holding that no motion for leave to file the second amended complaint was made.

     Appellant's analysis does not conform to the record of this case.  The record indicates that Appellant did not obtain leave of court for her second "Second Amended Complaint", the one filed on September 23, 1992.  The leave Appellant obtained was for the first "Second Amended Complaint", filed June 11, 1992.

     Appellee in its answer brief points to an error in Appellant's numbering of her amendments.  Indeed, much confusion stems in this case from the existence of two documents bearing the title "Second Amended Complaint." The first accompanied Appellant's June 6, 1993, motion to amend her complaint.  The second was filed on September 23, 1993.  Much of this case turns upon which was the one Justice Benson permitted.

     The motion filed on June 6, 1992, by Appellant specifically asked the Trial Court's permission for "leave to file the attached second amended complaint" (emphasis added).  In granting that motion on August 28, Justice Benson gave Appellant permission to "file and serve the second amended complaint."  We can only assume that in granting Appellant's specifically worded request he meant to give Appellant permission to file the "Second Amended Complaint" she had submitted with her June 6th motion.

[7 FSM Intrm. 15]

     Justice Benson's September 7, 1992, Statement of Disqualification leaves no doubt that his permission to amend Appellant's complaint pertained specifically to the document filed June 6, 1992:

     I am disqualified as to proceedings concerning the second, third, and fourth causes of action set forth in the second amended complaint.

     These words show that Justice Benson viewed the June 6th filing as the amendment he permitted.  On September 7 the only second amended complaint Justice Benson could have referred to was that of June 6.  The September 23, 1992 filing, which Appellant views as the proper second amended complaint, had not yet been made.

     Further, of the two documents entitled "Second Amended Complaint" only the one filed June 6 contains four causes of action.  That filed September 23, 1992, the second "Second Amended Complaint," lists only three.  Justice Benson therefore granted Mary Berman leave to file and serve the first "Second Amended Complaint" of June 6, 1992.

     Our examination of the record has revealed to us no evidence of leave having been sought or granted for Appellant's second "Second Amended Complaint" filed September 23, 1992.  Accordingly we must affirm the Trial Court's decision that the later filing was improper.

II.
     The second issue Appellant Mary Berman raises is whether the Trial Court was correct in ruling that Appellant had not raised at the appropriate time the issue of Appellee's liability in its rule enforcement capacity, thus precluding its later litigation.  The Trial Court noted in its June 10, 1993, decision that Appellant had first raised the issue in her opposition to Appellee's motion to set aside the default judgment.

     In her brief Appellant counters that she raised the issue much earlier.  She points to language in her first amended complaint and in her second "Second Amended Complaint" to support her proposition.  However, it is elementary that the first amended complaint bears no relevance to this case.  The second amended complaint supplanted the earlier filing in providing the basis for Appellant's case.  An amended pleading which is complete in itself and does not refer to or adopt a former pleading as a part of it supersedes the former pleading. 61A Am. Jur. 2d Pleading 335 (1981) (citing Strauss v. Spiegel, 153 F.2d 268 (7th Cir. 1946)).  Nor does the second "Second Amended Complaint" resolve this issue as it was not filed properly.  Thus, neither of the sources to which Appellant directs this Court can support her contention that she raised the issue of enforcement capacity liability in a timely manner.

     Even if Appellant had directed our attention to the complaint which provides the basis for her lawsuit, the first "Second Amended Complaint", which she did not, we have determined upon our own examination that no language exists in that filing which makes an issue of Appellee's liability for acting in its enforcement capacity.

     Justice Benson's September 24, 1992, ruling that Appellant was not entitled to damages because the Chief Justice is immune in his rule-making capacity disposed of the damages issue for purposes of this case.  The Trial Court correctly noted that at the time when Appellant first attempted to raise the issue of enforcement-capacity liability, in her opposition to the FSM's motion to set aside default, she was precluded from doing so.

     We, however, favor an alternative preclusive theory.  While the Trial Court applied the doctrine

[7 FSM Intrm. 16]

of collateral estoppel, we believe the doctrine of res judicata precluded Appellant's litigating the enforcement capacity liability issue subsequent to Justice Benson's ruling.

     The doctrine of collateral estoppel provides that a right, question, or fact which is distinctly put in issue and directly determined as a ground of recovery by a court of competent jurisdiction cannot be disputed in a subsequent action between the same parties, even if the subsequent action is on a different cause of action.  See Cromwell v. County of Sac, 94 U.S. 351, 24 L. Ed. 195 (1877).  The prior judgment is not, however, conclusive as to matters which might have been, but were not, litigated and determined in the prior action. See Partmar Corp. v. Paramount Pictures Theaters Corp., 347 U.S. 89, 74 S. Ct. 414, 98 L. Ed. 532 (1954).  Since the issue of Appellee's liability for acting in its enforcement capacity was not litigated, but might have been, it is not precluded by the doctrine of collateral estoppel.

     But it is barred by the doctrine of res judicata.  Under that doctrine a judgment entered in a cause of action conclusively settles that cause of action as to all matters that were or might have been litigated and adjudged therein. United Church of Christ v. Hamo, 4 FSM Intrm. 95, 106 (App. 1989) (citing Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 414, 66 L. Ed. 2d 308, 313 (1980)). Justice Benson's earlier ruling on damages conclusively settled that issue.  After it was rendered Appellant was no longer free to advance an alternative theory under which she might have been entitled to damages.

     The doctrine of res judicata exists to ensure efficient litigation and use of judicial resources, and to promote the reliability and certainty of judgments. While the doctrine formally addresses situations involving prior and subsequent lawsuits, we hold that its reasoning and purpose apply with equal force where, as here, a litigant attempts to revisit an earlier phase of a lawsuit that has already been adjudged.

III.
     A closely related issue is whether the trial court erred in granting Appellee's motion to set aside entry of default.  Appellant cites a three-pronged test for when relief from default may be granted and both sides argue the elements to their own advantage.  However, we think the answer lies simply in the propriety of the filings. As we rule that the second "Second Amended Complaint" was not properly filed, we must also uphold the Trial Court's granting of Appellee's motion.  Appellant's second "Second Amended Complaint" was not properly filed with the Court and it is rudimentary, therefore, that it cannot serve as the basis for a default judgment. The Trial Court's decision setting aside entry of a default based on the improper filing is affirmed.

IV.
     The final issue before us is whether the Trial Court acted properly in dismissing as moot claims 2, 3 and 4 of the second amended complaint. Appellant argues at some length in her brief that her present status as a member of the bar has no bearing on her right to sue for damages for past discrimination and lost employment opportunities.  Appellee counters with arguments that the only type of damages Appellant might be entitled to is attorney's fees.

     Neither party's argument helps us to decide this issue.  A claim becomes moot when the issues presented are no longer alive, or when the parties lack a legally cognizable interest in the outcome.  If an appellate court finds that any relief it could grant would be ineffectual, it must treat the case as moot.  32 Am. Jur. 2d Federal Practice and Procedure 332 (1982).  As we uphold the Trial Court's ruling that litigation of the issue of the FSM Supreme Court's liability in its enforcement capacity is

[7 FSM Intrm. 17]

precluded, we must agree with the Trial Court that Appellant would not be entitled to any damages even if she were to prevail on any of her claims. Further, as Appellant has also been admitted to the FSM Supreme Court Bar, any relief we could grant would be ineffectual.

     Exceptions exist to the mootness doctrine; however, as Appellant does not argue that any of them apply to her case we shall not attempt to review them except to say that they do not pertain here.

     The Trial Court's dismissal of Appellant's three remaining claims is affirmed.

Conclusion
     For the reasons stated, the decision of the Trial Court is affirmed.

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