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     This matter comes before the court on a joint motion to remand this matter to the Pohnpei Board of Trustees and Stay of Proceedings, filed on October 10, 2001, and upon plaintiffs’ motion for preliminary injunction, filed on October 1, 2001. For the reasons set forth below, the court will deny the motion for remand, deny the request for a stay of proceedings, and deny plaintiffs’ motion for a preliminary injunction.

1. Plaintiffs’ Allegations

     On August 24, 2001, plaintiffs Ambros & Co., Inc. and Ambros Senda filed a complaint against defendant Board of Trustees of the Pohnpei Public Lands Trust (the "Board") and defendant Kuinsi Alexander. The complaint alleges that on November 30, 1994, a person named Melterina Gomez executed an agreement in which she assigned all of her rights under a land lease of land parcel 007-A-18 (the "parcel") to plaintiff Ambros Senda. On that same day, Ms. Gomez submitted a letter to defendant Board for approval of the assignment to plaintiff Senda.

      While waiting for the board to approve the assignment, plaintiff Senda leased the parcel to plaintiff Ambros & Co., of which plaintiff Senda is a major shareholder. While plaintiff Senda was waiting for the board approval of the assignment, defendant Alexander and his family entered the parcel without plaintiffs’ consent. Plaintiffs have built certain structures on the parcel but have been forced off the parcel by defendant Alexander.

     With the defendant Board taking no action on the request for approval of the assignment, plaintiff Senda retained attorney Martin Jano to assist him in securing approval of the assignment. In 1999, plaintiff Senda retained his current counsel, Saimon & Associates, to assist him in securing defendant Board’s approval of the assignment. A meeting took place on November 17, 1999 between plaintiff’s counsel and defendant Board. On November 26, 1999, the Pohnpei Attorney General’s office issued an opinion letter stating that assignments cannot be arbitrarily discarded by the Board.

     On December 16, 1999, a second meeting was held between defendant Board and plaintiff’s counsel. Plaintiff nor his counsel ever heard from defendant Board after that meeting. Without knowledge of the status of the matter, on June 22, 2001 plaintiff Senda entered into a sublease agreement with plaintiff Ambros & Co. (the "sublease") so plaintiff Ambros & Co. could use the parcel. On June 25, 2001, the sublease agreement was submitted to defendant Board for consideration and approval.

     On August 7, 2001, a copy of a residential lease agreement (the "residential lease") between defendant Alexander and the Pohnpei State Division of Management and Administration of Public Lands ("MAPL") was provided to plaintiffs’ counsel. The residential lease was entered into sometime in 1999. At no time up until the present did defendant Board take any action on the 1994 request for approval submitted by Melterina Gomez.

     In their complaint, plaintiffs allege causes of action for trespass, cheating, and perjury against defendant Alexander and unnamed others. Against defendant Board, plaintiffs allege causes of action for (1) concealment, removal, or alteration of record or process, (2) misconduct in public office, (3) fraudulent destruction, removal or concealment of instruments, (4) abuse of process, (5) intervention of contractual relationship, (6) infliction of emotional distress, (7) denial of due process, (8) violation of civil rights, and (9) violation of the Contract Clause of the Pohnpei State Constitution. [The causes of action against defendant Board represent the 4^th through the 12^th causes of action in the complaint.]

2. Defendant Alexander’s Answer and Counterclaim

     On September 7, 2001, defendant Alexander filed and answer and counterclaim against plaintiffs. The answer includes affirmative defenses of (1) lack of jurisdiction for plaintiff Senda as diversity jurisdiction does not exist, (2) lack of standing for both plaintiffs due to lack of sufficient possessory interest in the parcel, and (3) failure to state a claim upon which relief can be granted as plaintiffs’ causes of action for trespass, cheating and perjury are based upon Pohnpei criminal statutes and do not provide private causes of action nor provide the FSM Supreme Court with jurisdiction over the matter.

     Defendant Alexander’s counterclaim alleges that on November 22, 1998, Melterina Gomez died, leaving defendant Alexander as one of the successors to her interest in the parcel. In or around December 1998, heirs of Melterina Gomez executed a family agreement whereby defendant Alexander would be successor to Ms. Gomez’s interest in the parcel. On March 23, 1999, the Pohnpei State Department of Land ("DOL") issued a 25 year residential lease agreement (the "residential lease") with defendant Alexander for the parcel.

     Defendant Alexander alleges three causes of action for trespass and two causes of action for nuisance against plaintiff Ambros & Co. Plaintiff Ambros & Co. operates a commercial retail business on the parcel immediately adjacent to defendant Alexander’s parcel (defendant Alexander claims ownership of the parcel which is the subject of this litigation). Plaintiff Ambros & Co. erected and maintains a concrete staircase located on defendant Alexander’s parcel without defendant Alexander’s permission, and this constitutes an intrusion upon defendant Alexander’s exclusive possession and thus a trespass. Plaintiff Ambros & Co. has also installed and maintains six air conditioning/refrigerator machines on defendant Alexander’s parcel without his permission, intruding upon defendant Alexander’s exclusive possession and constituting a trespass. Plaintiff Ambros & Co. has also erected and maintains a wooden structure for the purpose of enclosing its air conditioning/refrigerator machines on defendant Alexander’s parcel without his permission, intruding upon defendant Alexander’s exclusive possession and constituting a trespass.

     Defendant Alexander further alleges that the substantial noise caused by the six air conditioning/refrigerator machines causes offensive, inconvenient and annoying noise. This noise is unreasonable, considering the residential nature of the neighborhood. This noise causes a substantial and unreasonable interference with the use and enjoyment of defendant Alexander’s land, thereby creating a nuisance upon defendant Alexander. Also, the six air conditioning/refrigerator machines cause blasts of hot air onto defendant Alexander’s land. These blasts of hot air are offensive, inconvenient and annoying to defendant Alexander. The blasts of hot air are unreasonable and cause a substantial and unreasonable interference with defendant Alexander’s use and enjoyment of his land.

     On September 14, 2001, plaintiff Ambros & Co. filed an answer to defendant Alexander’s counterclaim, and asserted the affirmative defenses of illegality, payment and unjust enrichment, waiver, failure to state a claim upon which relief can be granted, and estoppel.

3. Defendant Board’s Answer

     On September 27, 2001, defendant Board of Trustees of the Pohnpei Public Land Trust ("Board") filed an answer to plaintiffs’ complaint, generally denying the allegations therein. The Board also plead three affirmative defenses: failure to state a claim upon which relief can be granted (plaintiffs are not a party to the lease between the Board and defendant Alexander); plaintiff Senda’s assignment to plaintiff Ambros & Co. has no legal effect because plaintiff Senda cannot sublease a property not legally belonging to him, and that plaintiff Senda lacks the power and authority to sublease by S.L. No. 5L-17-00, § 1 (prohibiting subletting or assignment of residential leases issued by the Board except to persons who are immediate family members of the initial lessee); and, since plaintiff Ambros & Co. is not a family member of plaintiff Senda, plaintiff Senda could not sublease the property to plaintiff Ambros & Co.

1. Motion for Remand Matter to Pohnpei Board of Trustees

     On October 10, 2001, plaintiffs and defendant Board filed a joint motion to remand this matter to the Pohnpei Board of Trustees of the Pohnpei Public Lands Trust, and to stay the proceedings until after a decision is made by the board of trustees.

     The joint motion states that when the case is remanded, the Board would then hear the claims of the parties in this case, plaintiff Senda and defendant Alexander, to land parcel 007-A-18. The motion states that the Board would be giving plaintiffs the due process elements of notice and an opportunity to present their claims to the Board. The joint motion cites a Pohnpei decision, Pohnpei v. MV Hai Hsiang #36 (I), 6 FSM Intrm. 594, 601 (Pon. 1994), for the proposition that "even when a national court places itself in the shoes of the state court and interprets state law, the state court is always the final arbiter of the meaning of a state law."

a. Defendant Alexander’s Opposition

     On October 16, 2001, defendant Alexander filed an opposition to the joint motion for remand. Defendant Alexander argues that the FSM Supreme Court should not abstain from exercising jurisdiction simply because there are land issues before the court, citing Etscheit v. Mix, 6 FSM Intrm. 248, 250 (Pon. 1993). The doctrine of primary jurisdiction has permitted the FSM Supreme Court to remand land disputes to a local governing body for matters that the agency is most familiar in the customs and practices of the activity governed. Etpison v. Perman, 1 FSM Intrm. 405, 429 (Pon. 1984).

     Defendant Alexander argues the rationale supporting the FSM Supreme Court’s remand of a land dispute to the local administrative agency is typically done in hope that the remand of the matter to the agency will obviate the need for further court action. Id. For example, where a public land authority has erred in complying with notice and hearing procedures, and there is no suggestion of bad faith or substantive violations by the agency, the FSM Supreme Court may appropriately employ the doctrine of primary jurisdiction to remand the public land issue to the authority to cure the procedural errors. Id.

     Defendant goes on to state the FSM Supreme Court should not invoke the doctrine of primary jurisdiction in land disputes if the factors supporting a remand are outweighed by the FSM Supreme Court’s constitutional obligations to retain jurisdiction. Ponape Transfer & Storage Inc. v. Federated Shipping Co., 4 FSM Intrm. 37, 39 (Pon. 1989). When deciding whether to remand a case to a local governing body, the FSM Supreme Court must consider whether other non-land issues are involved in the case. It is more appropriate for the court to remand an action to local tribunals only when the court determines that there remain only purely land-related issues. Etscheit v. Mix, 6 FSM Intrm. 248, 250 (1993).

     Defendant Alexander goes on to argue that in their complaint, plaintiffs alleged that defendant Board committed nine counts of bad faith and substantive violations in the performance of its duties. Plaintiffs further allege that the defendant Board violated their constitutional rights under the substantive Due Process Clause and the Contract Clause. Because plaintiffs are alleging that the Board committed constitutional violations, the FSM Supreme Court should not remand the action to the very agency where such constitutional injustices have been alleged. See Ponape Transfer & Storage, 4 FSM Intrm. at 39; Mix, 6 FSM Intrm. at 250.

     Additionally, in their complaint plaintiffs allege claims unrelated to land issues: a contracts claim, a tort claim based on allegations that the Board inflicted emotional distress on plaintiffs, and a violation of plaintiffs’ civil rights. Plaintiffs also allege that defendant Alexander committed the torts of trespass, perjury, and cheating against defendants, and these are also non-land claims. Since non-land issues have been plead by plaintiffs, it is inappropriate for the FSM Supreme Court to remand this case to defendant Board. See Mix, 6 FSM Intrm. at 250.

     Defendant Alexander further argues that he filed a counterclaim against plaintiff Ambros & Co., a U.S. corporation. And defendant Alexander has filed a motion for a preliminary injunction against plaintiff Ambros & Co. The FSM Supreme Court has a responsibility under Article XI, Section 6(b) of the FSM Constitution to hear diversity disputes, even if land issues are involved. Etscheit v. Adams, 5 FSM Intrm. 243, 246 (Pon. 1991). Defendant Alexander states that the FSM Supreme Court’s constitutional obligations to retain jurisdiction to consider defendant’s claims outweigh the interests of staying his action pending a remand to the Board. See Ponape Transfer & Storage Inc., 4 FSM Intrm. at 39; Mix, 6 FSM Intrm. at 250.

b. Joint Response to Opposition

     On October 23, 2001, plaintiffs and defendant Board filed a joint response to defendant Alexander’s opposition to motion for remand and motion to stay. The joint response argues that the joint motion was made to alleviate the allegation of a Due Process violation suffered by plaintiffs as a result of the Board’s actions. The movants argue that a stay is appropriate because it is simply proper to hold all remaining matters while the procedure takes a new venue.

c. Analysis

     In Ponape Transfer & Storage v. Federated Shipping Co., 4 FSM Intrm. 37, 39, 44-47 (Pon. 1989) the court decided to abstain in favor of decisionmaking by the Pohnpei Supreme Court, because of the following factors: (1) land use rights were at issue; (2) the particular decision under challenge is part of a state attempt to develop a coherent policy concerning disposition for private use of lands held by the state government; (3) there is already pending in state court similar litigation involving essentially the same parties, and issues, and action is needed to avoid duplicative litigation; (4) the State, as defendant in an action which may expose it to monetary damages, requests abstention; (5) Congress has taken no action to assert the only apparent national interest, foreign and interstate commerce, and shipping, which may be affected by the outcome of this litigation; and (6) there are no indications that abstention will result in delay or injustice to the parties.

     It is true that this court has deferred adjudication of certain land disputes in favor of state and land commissions. Etscheit v. Mix, 6 FSM Intrm. 248, 250 (Pon. 1993). However, this court has also emphasized its responsibility under article XI, section 6(b) of the FSM Constitution to hear diversity disputes, even if land issues are involved. Id. There is no judicial, constitutional, or legislative rule that in all cases where land is concerned, the FSM Supreme Court must abstain or otherwise refrain from exercising jurisdiction. The presence of certain factors on a case-by-case basis may influence the decision to abstain in land cases. Id., (citing Ponape Transfer & Storage v. Federated Shipping Co., 4 FSM Intrm. 37, 44-47 (Pon. 1989)).

     In Etscheit v. Mix, the court decided that since the case presented issues of contract, tort, property, and attorney-client responsibility, the case was no longer solely or even primarily a land dispute. Therefore the court refused to grant Mix’s motion to dismiss the case based on a presumption in the FSM in favor of adjudicating land matters in state courts. Etscheit, 6 FSM Intrm. at 250.

     In the present case, plaintiffs allege numerous "non-land" claims against the defendants. Plaintiffs allege that defendant Board committed nine counts of bad faith and substantive violations in the performance of its duties. Plaintiffs allege the Board violated their constitutional rights. Also, plaintiffs allege that defendant Alexander committed the torts of trespass, perjury, and cheating. Further, defendant Alexander plead a counterclaim against plaintiffs alleging the torts of trespass and nuisance.

     The court believes that in the present case the factors in favor of abstention are outweighed by the factors in favor of this court retaining jurisdiction over this case. There is no parallel litigation in state court which will address all of the parties’ respective claims if this court does not hear them. Nor is there duplicative litigation from two lawsuits as to the same subject matter. Also, if the court does abstain, various claims of the parties will not be addressed, such as the tort claims and the motions for preliminary injunctions.

     Additionally, the motion for remand does not seek to transfer this case to a state court, but instead to the party who allegedly committed bad faith and substantive violations in the performance of its duties. The court is now concerned as to whether the Board could provide the parties with a fair hearing in light of the present litigation. Therefore the court will deny the joint motion to remand this matter to the Pohnpei Board of Trustees.

2. Plaintiffs’ Motion for a Preliminary Injunction

      On October 1, 2001, plaintiffs filed an opposition to defendant Alexander’s motion to dismiss and an opposition to defendant Alexander’s motion for preliminary injunction. Included with the

opposition was a motion for a preliminary injunction against defendant Alexander.

     However, plaintiffs’ motion for a preliminary injunction fails to comply with FSM Civil. Rule 6(d), which requires that all motions shall contain certification by the movant that a reasonable effort has been made to obtain the agreement or acquiescence of the opposing party and that no such agreement has been forthcoming. Therefore, the court must deny plaintiffs’ motion for a preliminary injunction, without prejudice.

     For the foregoing reasons, the joint motion to remand matter to the Pohnpei Board of Trustees and the accompanying request for a stay of proceedings, filed on October 10, 2001, is hereby denied. Further, plaintiffs’ motion for preliminary injunction, filed October 1, 2001, is hereby denied, without prejudice.

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