THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Semwen v. Seaward Holdings, Micronesia,
7 FSM Intrm. 111 (Chuuk 1995)

[7 FSM Intrm. 111]

PETER SEMWEN,
Plaintiff,

vs.

SEAWARD HOLDINGS, MICRONESIA,
Defendant.

CIVIL ACTION NO. 1993-1003

ORDER

Richard H. Benson
Associate Justice

Hearing:  March 23, 1995
Decided:  April 5, 1995

APPEARANCES:
For the Plaintiff:          Tony Rosokow
                                     P.O. Box 613
                                     Weno, Chuuk FM 96942

                                     Maketo Robert, Esq.
                                     P.O. Box 211
                                     Weno, Chuuk FM 96942

For the Defendant:     Kathleen B. Alvarado, Esq.
                                     Law Offices of R. Barrie Michelsen
                                     P.O. Box 1450
                                     Kolonia, Pohnpei FM 96941

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HEADNOTES
Civil Procedure ) Dismissal
     Motions to dismiss for failure to state a claim upon which relief can be granted filed after an answer has been filed are considered motions for judgment on the pleadings.  In ruling on a motion for judgment on the pleadings a court must presume the non-moving party's factual allegations to be true and view the inferences drawn therefrom in the light most favorable to the non-moving party.  Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 113 (Chk. 1995).

[7 FSM Intrm. 112]

Civil Procedure ) Dismissal; Torts ) Damages
     Punitive damages are a derivative, not an independent cause of action, and must rest upon some other, underlying cause of action because it is merely an element of damages in that cause of action.  Thus, if all other causes of action are dismissed then punitive damages must necessarily also be dismissed.  Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 113 (Chk. 1995).

Constitutional Law ) Due Process
     The constitutional guarantee of due process only protects persons from the governments, and those acting under them, established or recognized by the Constitution.  Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 113 (Chk. 1995).

Constitutional Law ) Due Process; Employer ) Employee
     A plaintiff's firing by a private employer does not state a cause of action for unconstitutional deprivation of due process because no governmental entity or official is a defendant; the defendant is not alleged to be performing an essential governmental function; and a government action is not at issue.  Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 113 (Chk. 1995).

Civil Procedure ) Pleading
     The rules require only notice pleading, and are flexible and informal rather than technical.  The complaint need only be a short and plain statement of the claim and give the defendant fair notice of the factual wrong on the basis of the facts asserted.  The legal theory advanced, if one is advanced, need not be correct.  Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 113-14 (Chk. 1995).

Civil Procedure ) Pleading; Civil Procedure ) Dismissal
     A complaint should not be dismissed and a party precluded from relief because a plaintiff's lawyer has misconceived the proper legal theory of the claim.  If the complaint shows that the plaintiff is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief, the complaint is sufficient.  Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 114 (Chk. 1995).

Employer ) Employee; Torts ) Wrongful Discharge
     An employee fired because he had filed suit against the defendant seeking compensation for injuries received while working on the job for the employer appears to state a cause of action in either tort or implied contract for wrongful discharge or termination.  Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 114 (Chk. 1995).

Civil Procedure ) Summary Judgment
      A Rule 12(c) motion for judgment on the pleadings, unlike a Rule 56(d) summary judgment motion, is normally granted or denied upon the entire complaint, but where a partial judgment would promote an expeditious disposition of matters placed before the court, it may be granted.  Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 114 (Chk. 1995).

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     Plaintiff, with leave of court, filed his Second Amended Complaint in this matter on August 24, 1994.  Defendant answered on October 6, 1994.  Defendant's Motion to Dismiss for Failure to State

[7 FSM Intrm. 113]

a Claim Upon Which Relief Can Be Granted [FSM Civ. R. 12(b)(6)] was filed October 25, 1994.  Plaintiff has filed no opposition to defendant's motion.  Plaintiff's counsel did, however, file on January 12, 1995, a Motion to Withdraw as Counsel of Records, seeking to be replaced as counsel by his supervising attorney.  I denied that motion from the bench after hearing it, as noticed, on March 23, 1995. Defendant's counsel then suggested that it was now appropriate for me to rule on the defendant's motion to dismiss.  I hereby do so.

     Even though failure to timely oppose a motion is deemed a consent to that motion, Actouka v. Etpison, 1 FSM Intrm. 275, 276 (Pon. 1983) (relying on FSM Civ. R. 6(d)), I still need proper grounds before I may grant the motion,  Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994).

     Defendant filed its motion to dismiss pursuant to FSM Civil Rule 12(b)(6).  I cannot consider it a Rule 12(b)(6) motion.  Any motion raising a Rule 12(b) defense "shall be made before pleading if a further pleading is permitted."  FSM Civ. R. 12(b).  Defendant filed this motion after pleading its answer to the amended complaint. Civil Rule 12(h)(2), however, preserves the defense of failure to state a claim upon which relief can be granted and allows it to be presented in any Civil Rule 7(a) pleading, at trial, or by motion for judgment on the pleadings.  Therefore, even though denominated and argued otherwise, I must consider this filing to be a motion for judgment on the pleadings pursuant to Civil Rule 12(c).  In ruling on a motion for judgment on the pleadings a court must presume the non-moving party's factual allegations to be true and view the inferences drawn therefrom in the light most favorable to the non-moving party.  See generally 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 1368 (1990) (and cases cited therein).1

     Plaintiff's Second Amended Complaint contains three causes of action.  The Third Cause of Action is for punitive damages.  Punitive damages are a derivative, not an independent cause of action.  It must rest upon some other, underlying cause of action and is merely an element of damages in that cause of action.  Urban v. Salvador, 7 FSM Intrm. 29, 33 (Pon. 1995).  Thus, if the first two causes of action are dismissed then the third must necessarily also be dismissed.

     Plaintiff's First Cause of Action alleges that his property, the plaintiff's employment with the defendant, was unconstitutionally taken without the due process of law of notice and a fair hearing when the defendant fired him.  The constitutional guarantee of due process only protects persons from the governments, and those acting under them, established or recognized by the Constitution.  "The fundamental concept of procedural due process is that the government may not strip citizens of `life, liberty or property' in an unfair, arbitrary manner."  Suldan v. FSM (II), 1 FSM Intrm. 339, 354 (Pon. 1983) (emphasis added).  No governmental entity or official is a defendant here.  The defendant is not alleged to be performing an essential governmental function.  Nor is a government action at issue here.  Therefore the First Cause of Action does not state a claim upon which relief can be granted.

     Plaintiff's Second Cause of Action alleges that the defendant fired the plaintiff, in violation of 11 F.S.M.C. 701, because the plaintiff had filed suit against the defendant seeking compensation for injuries received while working on the job for the defendant.  Defendant's motion contends that the right to continued private employment is not a right protected by 11 F.S.M.C. 701.  I believe that defendant's contention is correct in this case.  However, our rules require only notice pleading. The rules are "flexible and informal rather than technical."  Faw v. FSM, 6 FSM Intrm. 33, 37 (Yap 1993)

[7 FSM Intrm. 114]

(construing FSM Civ. R. 8(a)).  The complaint need only be a short and plain statement of the claim and give the defendant fair notice of the factual wrong on the basis of the facts asserted.  Id.  The legal theory advanced, if one is advanced, need not be correct.

     [A] complaint should not be dismissed and a party precluded from relief because a plaintiff's lawyer has misconceived the proper legal theory of the claim.  If the complaint shows that the plaintiff is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief, . . . the complaint is sufficient.

Thibodeau v. Foremost Ins. Co., 605 F. Supp. 653, 657 (N.D. Ind. 1985) (citing Janke Constr. Co. v. Vulcan Materials Co., 527 F.2d 772, 776-77 (7th Cir. 1976)) (construing U.S. counterpart to FSM Civ. R. 8(a)).  Unquestionably, I may grant a party the relief to which he is entitled "even if the party has not demanded such relief in the party's pleadings."  FSM Civ. R. 54(c).

     Therefore I cannot say the plaintiff's Second Cause of Action fails to state a claim for which relief may be granted.  If the facts alleged therein are true (and for the purposes of this motion they must be presumed to be true) it appears to state a cause of action in either tort or implied contract for wrongful discharge or termination.  Therefore I must deny the motion to dismiss as to this cause of action. Because the plaintiff's Second Cause of Action cannot be dismissed neither can the derivative Third Cause of Action.

     Unlike a Rule 56(d) summary judgment motion where a partial judgment may be granted, a Rule 12(c) motion for judgment on the pleadings is normally granted or denied upon the entire complaint, but where a partial judgment would promote an expeditious disposition of matters placed before the court, it may be granted. Damarlane v. United States, 6 FSM Intrm. 357, 359 (Pon. 1994).  Therefore defendant's motion to dismiss is granted as to the Plaintiff's First Cause of Action and denied as to the Second and Third Causes of Action.

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Footnote:
 
1.  When an FSM Rule of Civil Procedure is nearly identical to a U.S. Federal Rule of Civil Procedure and the FSM Rule has not previously been construed by this court we may look to the U.S. federal courts for guidance in interpreting the rule.  Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992); Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984).