MARTIN G. YINUG, Associate Justice:
On August 17, 2001, the defendants filed their Motion to Dismiss for Lack of Jurisdiction; to Transfer Land Ownership Issue to State Land Commission. The plaintiffs' opposition was filed August 22, 2001. The defendants' reply was filed September 10, 2001. The motion was filed pursuant to the court's order that the defendants raise by motion the affirmative defense in their answer that the court lacks jurisdiction to hear this case because to resolve the issues raised by the plaintiffs would
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require determining title to land and the land in question is in a land registration area. The order also asked the parties to address whether, in this case, the court should follow the procedure the court used in Pau v. Kansou, 8 FSM Intrm. 524 (Chk. 1998).
The plaintiffs' complaint alleges that the defendants' rock-quarrying operation has encroached on their land and seeks monetary damages for trespass, property damage to "trees, plants, soil, etc.," unjust enrichment, infliction of emotional distress, and punitive damages. The plaintiffs assert that this court has jurisdiction over these claims under its diversity jurisdiction, FSM Const. art. XI, § 6(b), because the defendant is a non-citizen of the FSM as that term is defined by statute, 32 F.S.M.C. 203(11).
The proper inquiry, however, is not whether the FSM Supreme Court can exercise jurisdiction over the case, but whether any court can. The land involved in this case is on the island of Weno. Trust Territory Code Title 67, section 105 provides in part that once land has been declared part of a registration area "courts shall not entertain any action with regard to interests in land within that registration area without a showing of special cause why action by a court is desirable before it is likely a determination can be made on the matter by the land commission." 67 TTC 105. Trust Territory Code Title 67 remains in effect in Chuuk through the Chuuk Constitution Transition Clause, Chk. Const. art. XV, § 9. All of Weno has been declared a registration area.
In Pau v. Kansou, 8 FSM Intrm. 524 (Chk. 1998), the plaintiff also sought damages for trespass and other causes of action. Because the determination of liability for the causes of action asserted required a determination of ownership for the land in question (which was disputed), the Pau court remanded that issue to the Chuuk Land Commission and retained jurisdiction over the case so that if the Land Commission determined that Pau owned any of the land upon which the alleged trespass had occurred, Pau could then proceed with his case in the FSM Supreme Court. Pau, 8 FSM Intrm. at 527.
The plaintiffs distinguish this case from Pau by asserting that in this case the plaintiffs have a Determination of Ownership issued for their land by the Land Commission while in Pau the plaintiff did not. They assert that this means that the case should not be remanded to determine land ownership because "a determination of ownership has been issued to the plaintiff, thereby obviating any need to involve the Land Commission's determination process required by law." The plaintiffs contend that the "only question" has to do with where the defendants' actual work activities took place, whether on the land next to the plaintiffs' land "or whether on the plaintiffs' land as alleged," and concede that "the Land Commission may be relied upon to conduct a retrace of the boundary lines of the land." In support of the motion, the defendants' attorney submitted an affidavit that stated that the Chuuk Land Commission said that "there was an ongoing dispute there, as to the boundaries of adjacent landowners including the plaintiffs."
The Determination of Ownership attached to the plaintiffs' opposition as Plaintiffs' Exhibit 1 is for private land owned in fee simple estate by "Asako and all her children," and which is described as "Lot 62149 known as Wichuk located in Tunuk Village, Moen [Weno] Island." No further description is given. The Determination of Ownership is dated April 18, 1984. The only named plaintiff1 is not
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named as an owner (although he may be one of Asako's unnamed children, as may be his brothers and sisters on whose behalf he is also suing). There is no Certificate of Title.
The issuance of a Determination of Ownership is not the final step in the land registration process. Issuance of a Certificate of Title is. 67 TTC 117. Generally, certificates of title are to be issued shortly after the time to appeal a determination of ownership has expired or shortly after an appeal has been determined. 67 TTC 117(1). A Certificate of Title must, with exception of rights of way, taxes, and leases of less than one year, set "forth the names of all persons or groups of persons holding interest in the land," id., and should include a description of the land's boundaries. Since no Certificate of Title has been issued, the Land Commission's ownership determination process has been started but has not been completed. Furthermore, the Determination of Ownership provided the court appears to be out of date, as the complaint alleges that the plaintiffs are the fee simple owners of Wichuk, without mention or reference to Asako.
The plaintiffs have not shown any special cause why action by a court is desirable before the land commission can determine the boundary between the plaintiffs' land and the defendants' quarry, although the elapse of seventeen years since the issuance of the Determination of Ownership without the issuance of a Certificate of Title, or apparent determination of Wichuk' boundaries, is inexplicable. It appears that the lack of definite boundaries prevented the prompt issuance of a certificate of title for Wichuk. Without definite boundaries, the court would be hard pressed to determine whether the defendants have trespassed on the plaintiffs' land and unjustly enriched themselves through quarrying the plaintiffs' property. Boundary determination in designated registration areas is a statutory function of the Land Commission. 67 TTC 106. As such, it is the Land Commission's responsibility to determine Wichuk's boundaries. Kapas v. Church of Latter Day Saints, 6 FSM Intrm. 56, 60 (App. 1993) (twenty-year lapse in determining boundaries).
Unlike Pau, there is a case pending before the Land Commission concerning Wichuk. This is further reason to remand the issue of Wichuk's boundaries to the Land Commission. And under the doctrine of primary jurisdiction it is for the Land Commission, not the court, to decide Wichuk's boundaries, and the Land Commission must be given the chance to conclude its administrative process. Kapas, 6 FSM Intrm. at 60. The court will therefore follow the procedure used in Pau and Kapas. The issue of where the boundaries of Wichuk lie will be referred to the Land Commission. Should it be determined that the plaintiffs own any of the land upon which the defendants' rock quarrying has occurred, they may then proceed with this case in this court.
This case is therefore remanded to the Chuuk Land Commission to determine the boundaries of Wichuk. It shall make this determination by February 28, 2002, and certify its findings to the parties and this court. The parties and the Land Commission shall submit a preliminary progress report by November 30, 2001. If the Land Commission has not completed its work by February 28, 2002, the plaintiffs may request further action in this court.
Accordingly, this case is remanded to the Chuuk Land Commission to determine where the boundaries of the plaintiffs' land (Wichuk) lies. The parties shall promptly file their claims before the Land Commission and include a copy of this order.
1. The rules require that "[i]n the complaint the title of the action shall include the names of all the parties . . . ." FSM Civ. R. 10(a). The title of the complaint in this case names only Kinchiro Small. The rest of the plaintiffs (on whose behalf Kinchiro Small is also suing) are merely described as "his Brothers and Sisters." It would seem, that to be proper, each brother and sister should have been named in the caption, and certainly in the complaint's body as well. See 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1321 (2d ed. 1990) (parties should be named in caption, but caption is not determinative as to parties to action; if body of complaint correctly identifies parties courts will generally allow amendment to correct technical defects in the caption); cf. Amayo v. MJ Co., 10 FSM Intrm. 244, 254 (Pon. 2001); Moses v. Oyang Corp., 10 FSM Intrm. 210, 213 (Chk. 2001); Moses v. M.V. Sea Chase, 10 FSM Intrm. 45, 49 (Chk. 2001). The defendants have a right to know the identity of those suing them. Accord Moses, 10 FSM Intrm. at 49.