Cite as Ambros & Co. v. Board of Trustees,11 FSM Intrm. 17 (Pon. 2002)

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CIVIL ACTION NO. 2001-036

Hearing: April 24, 2002
Decided: June 14, 2002

APPEARANCES:

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HEADNOTES

Civil Procedure – Dismissal

A defense of failure to state a claim upon which relief can be granted may be made in a pleading, or in a motion for judgment on the pleadings, or at the trial on the merits. There is no requirement that such a defense only be raised, if at all, in a motion to dismiss filed prior to filing a responsive pleading. Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 17, 23 (Pon. 2002).

Jurisdiction – Diversity

There is no requirement of complete diversity of parties for the FSM Supreme Court to have jurisdiction over a matter. The FSM Constitution requires only that one plaintiff has citizenship different from one defendant for there to be diversity jurisdiction. Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 17, 23 (Pon. 2002).

Jurisdiction – Diversity

For purposes of diversity jurisdiction under article XI, section 6(b) of the Constitution, a corporation is considered a foreign citizen when any of its shareholders are not citizens of the FSM. Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 17, 24 (Pon. 2002).

Civil Procedure – Dismissal

A court evaluates a Rule 12(b)(6) motion to dismiss only on whether a plaintiff's claim has been adequately stated in the complaint, and does not resolve the facts or merits of the case. A court's review is limited to the complaint's contents and the court must assume the facts alleged therein are true and view them in the light most favorable to the plaintiff. Dismissal can only be granted if it appears to a certainty that no relief could be granted under any facts which could be proven in support of the complaint. Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 17, 24 (Pon. 2002).

Criminal Law and Procedure; Torts

The Pohnpei state criminal statutes were intended to provide for criminal penalties for those who commit certain acts which are prohibited by the Act. The Pohnpei Crimes Act is not intended to create a basis for private parties to sue other parties, but to enable the Pohnpei state government to be able to punish those persons who violate provisions of the Act. Statutes which do not by their terms provide citizens with a cause of action for money damages cannot be the basis for private damages claims. Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 17, 25 (Pon. 2002).

COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

On April 24, 2002, this matter came before the court on a motion by defendant Kuinsi Alexander to dismiss plaintiff's complaint against him pursuant to FSM Civil Rule 12(b), filed on September 19, 2001. Salomon Saimon appeared for the plaintiffs. Andrew Sprenger appeared on behalf of defendant

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Kuinsi Alexander. Joses Gallen appeared on behalf of defendant Board of Trustees. For the reasons set forth below, the court will grant defendant Alexander's motion to dismiss.

BACKGROUND

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. Neither 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 4th through the 12th 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

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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.

DISCUSSION

I. Motion

On September 19, 2001, defendant Alexander filed a motion to dismiss plaintiffs' complaint pursuant to FSM Civ. R. 12(b). Defendant makes the following arguments in support of his motion to dismiss:

A. No Diversity Jurisdiction Between Plaintiff Ambros Senda and Defendant Alexander

The FSM Supreme Court is granted (diversity) jurisdiction over disputes between citizens of

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different states. FSM Const. art. XI, § 6(b). Both Ambros Senda and defendant Alexander are citizens of the FSM and of the state of Pohnpei. In his complaint, plaintiff Senda is claiming that defendant Alexander committed acts of trespass, cheating and perjury against plaintiff Senda in violation of the Pohnpei state criminal code.

Defendant Alexander argues that because there is no diversity between plaintiff Senda and defendant Alexander, and because plaintiff is seeking exclusively state criminal law claims against defendant Alexander, the court lacks jurisdiction to review any of plaintiff Senda's claims against defendant Alexander.

B. Plaintiffs Lack Standing

Defendant Alexander argues that a person needs to have a sufficient stake or interest in an otherwise justiciable controversy to obtain judicial resolution of that controversy. He argues that plaintiffs do not have a sufficient possessory interest in the land to bring a trespass action against defendant Alexander for his occupation of the property, and thus lack standing to bring a trespass action against defendant Alexander.

Defendant's argument is based on the assertion that the November 30, 1994 assignment of lease from owner Melterina Gomez to plaintiff Ambros Senda was never approved by the Board of Land Trustees. And no assignment, sublease . . . of a lease agreement on public land shall be valid without the prior written approval of the Board of Trustees Authority . . . . See Regulation for the Leasing of Public Trust Lands, pt. 10(A). Because the Board failed to approve the November 30, 1994 lease assignment, plaintiff Senda does not have a valid leasehold interest in the property. Since plaintiffs do not have the necessary sufficient possessory interest in the land to bring a trespass action against defendant Alexander, and plaintiffs' claim against defendant Alexander for trespass should be dismissed.

C. Failure to State Claims Upon Which Relief Can be Granted

Plaintiffs' first cause of action against defendant Alexander is that Alexander committed a criminal trespass by violating the Pohnpei Crime Act of 1994, ch. 7, §7-47. Defendant Alexander argues this court cannot grant plaintiffs' criminal trespass claim because (1) the plaintiffs failed to affirmatively establish that the Pohnpei Crime Act provides them with a private cause of action, and (2) plaintiffs failed to establish that pendant jurisdiction exists for this court to review a violation of a Pohnpei criminal statute. Additionally, even if the cause of action were construed as founded upon the civil tort of trespass, plaintiffs cannot seek relief as they have failed to plead that they have a legal possessory interest in the property.

Plaintiffs' second cause of action against defendant Alexander is that he committed a cheating against plaintiffs by violating the Pohnpei Crime Act of 1994, ch. 7, §7-7. Similarly, defendant Alexander argues that this court cannot grant plaintiffs' cheating claim because (1) the plaintiffs failed to affirmatively establish that the Pohnpei Crime Act provides them with a private cause of action, and (2) plaintiffs failed to establish that pendant jurisdiction exists for this court to review a violation of a Pohnpei criminal statute.

Plaintiff's third cause of action against defendant Alexander is that he committed a perjury against plaintiffs by violating the Pohnpei Crime Act of 1994, ch. 3, §3-17. As with the previous two cause of actions, defendant Alexander argues that this court cannot grant plaintiffs' perjury claim because (1) the plaintiffs failed to affirmatively establish that the Pohnpei Crime Act provides them with a private cause of action, and (2) plaintiffs failed to establish that pendant jurisdiction exists for this

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court to review a violation of a Pohnpei criminal statute.

Defendant Alexander argues that since plaintiffs' complaint fails to state a claim upon which relief should be granted, it should be dismissed.

II. Opposition

On October 1, 2001, plaintiffs filed an opposition to defendant Alexander's motion to dismiss. Plaintiffs argue that a party filing a motion to dismiss must file the motion before the party files its pleading. FSM Civ. R. 12(b) states that a motion making any of these defenses shall be made before pleading if a further pleading is permitted. Plaintiffs argue that since defendant Alexander filed his motion to dismiss after he answered plaintiffs' complaint, his motion to dismiss is untimely and must be denied.

Plaintiffs further argue that a motion to dismiss should be granted only if it is certain that relief cannot be granted from the allegations in the complaint and that the complaining party should be given the benefit of the court assuming that the facts stated in the complaint to be true. Plaintiffs argue there is diversity, since plaintiff Ambros & Co. has a foreign shareholder. Additionally, plaintiffs allege a violation of civil rights, which is a question of national law. Therefore, this court clearly has jurisdiction over this matter.

Plaintiffs further argue that they, and not defendant Alexander, have the rightful possessory interest in the property. Defendant Alexander received his interest in the land via the probate of Ms. Gomez. But since Ms. Gomez had previously assigned the property to plaintiff Senda, the probate was improper, invalid, and illegal.

Plaintiffs argue that since defendant Alexander's motion to dismiss for failure to state a claim upon which relief be granted was filed after defendant Alexander filed an answer to plaintiffs' complaint, it should be considered a motion for judgment of 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 light most favorable to the non-moving party. Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 113 (Chk. 1995). Or, pursuant to FSM Civ. R. 12(c) the motion to dismiss could be treated as a motion for summary judgment. At this point, plaintiffs argue a motion for summary judgment is premature and therefore, inappropriate.

ANALYSIS

1. Rule 12(b)

Plaintiffs' first argument is that defendant Alexander's motion to dismiss should be denied for not complying with Rule 12(b) of the FSM Rules of Civil Procedure. Rule 12(b) provides that:

(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.

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If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Plaintiffs argue that since defendant Alexander filed a responsive pleading prior to filing his motion to dismiss, defendant Alexander's motion to dismiss should be denied. Plaintiffs cite In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 152 (Pon. 1993) for the proposition that "[a] motion to dismiss, unlike a pleading, must state with particularity the grounds for dismissal, be made before pleading, and be argued with clarity and relevance." Since defendant Alexander filed his answer on September 7, 2001 and filed the instant motion to dismiss on September 19, 2001, plaintiffs' contend the motion to dismiss should be dismissed.

In In re Parcel, the court denied defendants' motion to dismiss because the motion lacked clarity and relevance, not because it had been filed after defendants filed a responsive pleading. And, FSM Civil Rule 12(b) states that the seven enumerated defenses may at the option of the pleader be made by motion rather than by responsive pleading. Further, Rule 12(h)(2) provides that a defense of failure to state a claim upon which relief can be granted . . . may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.

The court believes that defendant Alexander's motion should not be dismissed because it was filed after defendant Alexander filed a responsive pleading. FSM Civil Rule 12(h)(2) allows a defense of failure to state a claim upon which relief can be granted to be made in a pleading, or in a motion for judgment on the pleadings, or at the trial on the merits. There is no requirement that such a defense only be raised, if at all, in a motion to dismiss filed prior to filing a responsive pleading. Therefore, the court rejects plaintiffs' argument that the motion to dismiss should be denied since it was filed after defendant Alexander filed a motion to dismiss.

2. Incomplete Diversity

Defendant Alexander states that FSM cases discussing diversity jurisdiction of the FSM Supreme Court have held that as long as one party is diverse from another party, the FSM Supreme Court has diversity jurisdiction. Defendant Alexander points to the law of the United States where "complete diversity" between the parties is a requirement for a U.S. federal court to have diversity jurisdiction over a matter. Defendant cites Article XI, Section 6(b) of the FSM Constitution; In re Nahnsen, 1 FSM Intrm. 97, 101 (Pon. 1982) in support of his argument that complete diversity should be required by this court to have jurisdiction over this matter. Defendant Alexander argues that since there is no diversity between plaintiff Senda and defendant Alexander, the FSM Supreme Court lacks jurisdiction to review any of plaintiff Senda's action against defendant Alexander.

This issue has been previously considered and resolved by the FSM Supreme Court. There is no requirement of complete diversity of parties for the FSM Supreme Court to have jurisdiction over a matter. The FSM Constitution requires only that one plaintiff has citizenship different from one defendant for there to be diversity jurisdiction. U Corp. v. Salik, 3 FSM Intrm. 389, 392 (Pon. 1988).

This court's jurisdiction is prescribed by Section 6 of the Judiciary Article of the Constitution of the FSM. The court is specifically given jurisdiction over disputes between citizens of a state and

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foreign citizens. FSM Const. art. XI, § 6(b).

In this case, plaintiff Ambros & Co., Inc. is a corporation duly organized in the FSM with an FSM citizen shareholder and a US citizen shareholder. Defendant Alexander is a citizen of the FSM and a resident of the State of Pohnpei. For purposes of diversity jurisdiction under article XI, section 6(b) of the Constitution, a corporation is considered a foreign citizen when any of its shareholders are not citizens of the FSM. Federated Shipping Co. v. Ponape Transfer & Storage (III), 3 FSM Intrm. 256, 260 (Pon. 1987). Therefore, diversity jurisdiction exists and this matter is properly before this court. The court will not grant defendant Alexander's motion to dismiss plaintiff Senda's claims due to a claim of "incomplete diversity."

3. Lack of Standing

Defendant Alexander argues that since the transfer of land by Melterina Gomez to plaintiff Senda on or about November 30, 1994 was never approved by the Board of Land Trustees, that the assignment was not valid. In support of this argument, defendant Alexander attaches Regulation for the Leasing of Public Trust Lands, Part 10(A) to his motion to dismiss. Defendant Alexander further argues that since a party needs at least a valid leasehold interest in land to have standing to maintain an action for trespass, that therefore plaintiffs have no standing to bring a trespass action against defendant Alexander.

"A court evaluates a Rule 12(b)(6) motion to dismiss only on whether a plaintiff's claim has been adequately stated in the complaint, and does not resolve the facts or merits of the case. A court's review is limited to the complaint's contents and the court must assume the facts alleged therein are true and view them in the light most favorable to the plaintiff. Dismissal can only be granted if it appears to a certainty that no relief could be granted under any facts which could be proven in support of the complaint." Latte Motors, Inc. v. Hainrick, 7 FSM Intrm. 190, 192 (Pon. 1995); see also Union Indus. Co. v. Santos, 7 FSM Intrm. 242, 244 (Pon. 1995).

In this case, the facts and inferences drawn from plaintiffs' complaint must be viewed by the court in the light most favorable to the plaintiffs. The court does not find that it appears to a certainty that no relief can be granted under any state of facts that could be proven in support of the claim. Indeed, there appears to be issues of fact which conceivably result in plaintiffs prevailing in this action, such as why the assignment from Melterina Gomez to plaintiff Senda was never approved by the Board of Trustees (if there were fraud involved, the court can see how plaintiffs might prevail). Therefore, the court will not grant defendant Alexander's motion to dismiss on the grounds that since the assignment from Ms. Gomez to plaintiff Senda was not approved by the Board of Trustees that therefore plaintiffs have no possessory interest in the property and therefore cannot maintain an action for trespass.

4. Alleging Pohnpei State Criminal Codes Violations as a Private Cause of Action

In the first cause of action against defendant Alexander, plaintiffs allege that defendant Alexander committed a criminal trespass by violating the Pohnpei Crimes Act of 1994, Chapter 7, Section 7-47. Plaintiffs' second cause of action against defendant Alexander alleges that defendant committed a cheating against plaintiffs by violating the Pohnpei Crimes Act of 1994, Chapter 7, Section 7-7. Plaintiffs' third cause of action against defendant Alexander alleges that defendant committed a perjury against plaintiffs by violating the Pohnpei Crime Act of 1994, Chapter 3, Section 3-17.

Defendant Alexander moves to dismiss all of these claims on two grounds: (1) plaintiffs failed to affirmatively establish that the Pohnpei state criminal statute provides them with a private cause of

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action against defendant Alexander; and (2) plaintiffs failed to establish that pendent jurisdiction exits for this court to review a violation of a Pohnpei criminal statute.

The Pohnpei Crimes Act of 1994 (the "Pohnpei Crimes Act") was created by S.L. No. 3L-89-95 (Apr. 6, 1995). The court believes the Pohnpei state criminal statutes were intended to provide for criminal penalties for those who commit certain acts which are prohibited by the Act. The Pohnpei Crimes Act is not intended to create a basis for private parties to sue other parties, but to enable the Pohnpei State government to be able to punish those persons who violate provisions of the Act.

For example, the crime of "trespass," Pon. S.L. No. 3L-89-95 §7-47, provides that upon conviction, one who is found guilty of trespass shall be imprisoned for a period of not more than one year or fined not more than $500, or both such fine and imprisonment. S.L. No. 3L-89-95 §7-47, does NOT create a cause of action for a private citizen. For the first cause of action, plaintiffs seek damages against defendant Alexander to compensate them for loss of income due to plaintiffs' inability to use the land. It is clear that S.L. No. 3L-89-95 §7-47 does not provide plaintiffs with the relief they seek. Further, neither the crime of "cheating," Pon. S.L. No. 3L-89-95 §7-7, nor the crime of "perjury," Pon. S.L. No. 3L-89-95 §3-17, provide a cause of action for a private person.

The FSM Supreme Court has held that statutes which do not by their terms provide citizens with a cause of action for money damages cannot be the basis for private damages claims. See Pohnpei Cmty. Action Agency v. Christian, 10 FSM Intrm. 623, 633-34 (Pon. 2002); Pohnpei v. M/V Miyo Maru No. 11, 8 FSM Intrm. 281, 292 (Pon. 1998); Darmalane v. United States, 6 FSM Intrm. 357 (Pon. 1994).

In Pohnpei v. M/V Miyo Maru No. 11, the court found that Title 25 of the FSM Code, an environmental statute, did not create a cause of action for a private citizen for monetary damages for violation of any part thereof. 8 FSM Intrm. at 292. Further, in Pohnpei Community Action Agency v. Peter Christian the court held that the Financial Management Act, Title 55 F.S.M.C., Chapter 2, did not make any provision for damages to be awarded to a private citizen based upon any violation of the Act. The court further stated that it would not infer the existence of such a private cause of action in the absence of a clear intent expressed in the statute that such a private cause of action be created.

Similarly to these cases, the court finds that the Pohnpei Crimes Act neither provides nor was ever intended to provide a cause of action for a private party. It is further clear that plaintiffs can under no possibly theory prevail against defendant Alexander on any of the three causes of action against him. Therefore, the court will grant defendant Alexander's motion to dismiss as to the first three causes of action in plaintiffs' complaint pleading the causes of action for trespass, cheating and perjury.

CONCLUSION

For the foregoing reasons, the court HEREBY GRANTS defendant Alexander's motion to dismiss, without prejudice, the first three causes of action in plaintiff's complaint as these fail to state a claim upon which relief can be granted.