THE SUPREME COURT OF THE
 FEDERATED STATES OF MICRONESIA
Cite as Mailo v. Twum-Barimah,
2 FSM Intrm. 265 (Pon. 1986)

[2 FSM Intrm. 265]

ERENCIA MAILO,
Plaintiff,

vs.

DANIEL TWUM-BARIMAH,
Defendant.

CIVIL ACTION NO. 1986-045


OPINION
 
Before Edward C. King
Chief Justice
November 7, 1986

APPEARANCES:
     For the Plaintiff:                    R. Barrie Michelsen
                                                    Attorney-at-Law
                                                    Ramp & Michelsen
                                                    P.O. Box 1480
                                                    Kolonia, Pohnpei 96941

     For the Defendant:               Robert L. Keogh
                                                    Attorney-at-Law
                                                    P.O. Box GZ
                                                    Agana, Guam 96910

*       *        *        *
[2 FSM Intrm. 266]

HEADNOTES
Civil Procedure
     A motion under FSM Civ. R. 12(b) to dismiss for failure to state a claim upon which relief may be granted may be upheld only if it appears to a certainty that no relief could be granted under any state of facts which could be proved in support of the claim.  Mailo v. Twum-Barimah, 2 FSM Intrm. 265, 267 (Pon. 1986).

Custom and Tradition; Torts-Abuse of process
     Whether interference with the efforts of a non-FSM citizen engaged in business within the Federated States of Micronesia is an abuse of process is not an issue which may be resolved by reference to traditional or customary principles.  Mailo v. Twum-Barimah, 2 FSM Intrm. 265, 268 (Pon. 1986).

Common Law; Torts-Abuse of process
     Common law decisions of the United States are an appropriate source of guidance in addressing claims of abuse or process within the Federated States of Micronesia.  Mailo v. Twum-Barimah, 2 FSM Intrm. 265, 268 (Pon. 1986).

Torts-abuse of process
     Abuse of process occurs where one uses legal process against another's person or property to accomplish an ulterior purpose for which the process was not designed.  Mailo v. Twum-Barimah, 2 FSM Intrm. 265, 268 (Pon. 1986).

Torts-abuse of process
     The process contemplated for the tort of abuse of process is issuance  by an official body of some legal document or order which affects the victim's person or property.  Mailo v. Twum-Barimah, 2 FSM Intrm. 265, 268 (Pon. 1986).

*       *        *       *

COURT'S OPINION
EDWARD C. KING, Chief Justice:
     Plaintiff's motion to dismiss the counterclaim here presents the question whether plaintiff's actions in filing an affidavit opposing defendant's foreign investment permit application, and then offering to withdraw the affidavit if plaintiff would make a settlement payment to her, could constitute abuse of process.

Background
     Daniel Twum-Barimah's counterclaim states that he filed an application for a foreign investment permit with the FSM National Government on or about January 10, 1986, and that plaintiff Erencia Mailo did the following acts:     

[2 FSM Intrm. 267]
 
     3.     On or about March 28, 1986, plaintiff/ counterdefendant Erencia Mailo, filed a sworn affidavit  with the FSM Foreign Investment Board falsely accusing defendant/counterclaimant Twum-Barimah of sexual harassment and vigorously opposing Mr. Twum-Barimah's Foreign Investment Permit application, and as a result of said affidavit the FSM Foreign Investment Permit has not yet  been issued to defendant/counterclaimant Twum-Barimah.
 
     4.     On or about June 19, 1986, through her legal counsel, Ms. Mailo corresponded with Mr. Twum-Barimah and advised him that if he were to make her a "settlement  offer" she would withdraw her opposition to Mr. Twum-Barimah's Foreign Investment Permit application.

     The counterclaim further alleges that Ms. Mailo filed her opposition to Mr. Twum-Barimah's foreign investment application to coerce from him a financial settlement and that her actions constituted an abuse or perversion of the foreign investment permit process.

     Erencia Mailo has moved to dismiss the counterclaim under FSM Civ. R. 12(b)(6), asserting that the counterclaim fails to state a claim upon which relief can be granted.

     The language of FSM Civ. R. 12(b) is identical with the rule of the same number in the United States Federal Rules of Civil Procedure.  This Court therefore may look to the United States federal courts' interpretation of rule 12(b) of the Federal Rules of Civil Procedure for guidance in reaching the proper interpretation of our rule.  See FSM v. Ponape Builders Constr., Inc., 2 FSM Intrm. 48, 52 (Pon. 1985); Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984).

     Under United States interpretations, it is well established that the facts alleged by the party asserting the claim sought to be dismissed are to be taken as true and that these facts and the inferences to be drawn therefrom must be viewed by the Court in the light most favorable to the party opposing the motion to dismiss. Hospital Bldg. Co. v. Trustees of the Rex Hosp., 425 U.S. 738, 96 S. Ct. 1848, 48 L. Ed. 2d 338 (1976); Kugler v. Helfant, 421 U.S. 117, 125 n.5, 95 S. Ct. 1524, 1531 n.5, 44 L. Ed. 2d 15, 25 n.5 (1975).  A motion to dismiss may not be granted unless it appears to a certainty that no relief could be granted under any state of facts which could be proved in support of the claim.  Haines v.  Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Watts v. Graves, 720 F.2d 1416 (5th Cir. 1983).  I acceptthese standards as applicable to a motion to dismiss under FSM Civ. R. 12(b)(6).

     The question then is whether it may be considered an abuse of process for Ms. Mailo to have filed a sworn affidavit with the FSM Foreign Investment Board, assuming for purposes of this motion that the accusations against Mr. Twum-Barimah were known by Ms. Mailo to be false and were made for the purpose of extorting funds from him.

[2 FSM Intrm. 268]

Legal Analysis
     We must first determine whether the tort of abuse of process exists under the law of the Federated States of Micronesia.  There is no constitutional or statutory provision providing for such a tort.  This Court has not previously ruled concerning any abuse of process claim nor is the Court aware of any state court decision recognizing or considering such a tort.

     Also, neither party has directed the Court's attention to any custom or tradition militating for or against recognition of the abuse of process tort.  The Foreign Investment Act, 31 F.S.M.C. 201 et seq., sets out procedures to be followed and does not rely on custom.  Whether a non-FSM citizen may engage in business within the Federated States of Micronesia does not appear to be an issue historically determined by traditional or customary principles.

     This Court has previously held that common law decisions of the United States are an appropriate source of guidance for tort issues unresolved by the Constitution, statutes, decisions of courts or custom or tradition within the Federated States of Micronesia.  Semens v. Continental Air Lines Inc., 2 FSM Intrm. 131, 142 (Pon. 1985).

     Under the common law of the United States, abuse of process occurs where one uses legal process against another's person or property to accomplish an ulterior purpose for which the process was not designed.  W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton On Torts 897 (5th ed. 1984) (hereafter "Prosser, Torts").  Restatement (Second) of Torts 682 (1977).  Such a cause of action is generally agreed to serve a useful purpose in common law nations and there appears no reason why such a tort should not be recognized here.  The Court therefore recognizes the existence of the tort of abuse of process here.

     The analysis proceeds to the question of whether the counterclaim contains allegations which make up a claim of abuse of process.  The counterclaim alleges that Ms. Mailo, in filing her affidavit, had the ulterior purpose of obtaining funds from Mr. Twum-Barimah.  As already noted, that allegation must be regarded as true for purposes of this motion to dismiss.

     However, it does not appear that the second requirement, use of legal process, has been met.  Mr. Twum-Barimah contends that this requirement was met because the affidavit was intended to affect the procedures of the foreign investment board in such a way that Twum-Barimah's property interest in engaging in business here would be unjustly defeated.

     The process contemplated for this tort is issuance by an official body of some legal document or order which affects the victim's person or property.

     [I]t is clear that the judicial process must in some manner be involved.

[2 FSM Intrm. 269]
*        *        *

     Many kinds of process have lent themselves to extortion, including attachment, execution, garnishment, sequestration proceedings, arrest of the person and  criminal prosecution and even such infrequent cases as the use of a subpoena for the collection of debt.

Prosser, Torts 898-99.  Indeed, it has been said that arrest or seizure is an essential element of abuse of process, Sheridan v. Fox, 531 F. Supp. 151    (D. Pa. 1982), although some courts have held that the initiation of judicial or administrative proceedings is sufficient "process" to trigger the tort. Avigliano v. Sumitomo Shoji America, Inc., 473 F. Supp. 506 (S.D.N.Y. 1979); Voytko v. Ramada Inn of Atlantic City, 445 F. Supp. 315 (D.N.J. 1978).

     Here, no legal process was used or issued.  There was no arrest or seizure of Mr. Twum-Barimah or his property nor was any order or document issued by an official body.  The only document alluded to in the counterclaim, Ms. Mailo's affidavit, was not an order and was not issued by an official body.  Nor did the affidavit lead to issuance of an order by an official  body.  Ms. Mailo merely filed an affidavit in proceedings previously initiated by Mr. Twum-Barimah.  Defendant has pointed to no authority, and the Court has been unable to find any, holding that such an action may constitute an abuse of process.

     In similar circumstances, it has been held that an affidavit of a private citizen filed with an agency and bringing into question another's real estate license cannot be regarded as the requisite process for the abuse of process tort.  "Since there was no unlawful interference with ... person or property pursuant to regularly issued process, a cause of action for its abuse does not lie."  Julian J. Studley, Inc. v. Lefrak, 332 N.E.2d 611 (N.Y.  1977).  See also Hokanson v. Lichtor, 626 P.2d 214, 222 (Kan. App. 1981) (false testimony during civil litigation, leading to an unjust result, does not constitute abuse of process).

Conclusion
     The tort of abuse of process is well defined at common law.  One of the essential requirements, use of legal process emanating from an official body, has not been alleged in this case.  Therefore the motion to dismiss defendant's counterclaim is granted.
 
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