THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as Pau v. Kansou ,
8 FSM Intrm. 524 (Chk. 1998)

[8 FSM Intrm. 524]

FITIES PAU,
Plaintiff,

vs.
 
ROOSEVELT KANSOU, SIMON INNOCENTI
and MANUEL CRISOSTOMO d/b/a RIBC,
Defendants.

CIVIL ACTION NO. 1998-1011

ORDER OF REMAND

Richard H. Benson
Associate Justice

Hearing:  December 18, 1998
Decided:  December 23, 1998

APPEARANCES:
For the Plaintiff:          Johnny Meippen, Esq.
                       P.O. Box 705
                       Weno, Chuuk FM 96942

For the Defendant:     Wesley Simina, Esq.
                       P.O. Box 94
                       Weno, Chuuk FM 96942

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HEADNOTES
Civil Procedure ) Motions
     Failure to oppose a portion of a motion may be considered a consent to that portion of the motion, but a court still needs proper grounds to grant the motion.  Pau v. Kansou, 8 FSM Intrm. 524, 526 (Chk. 1998).

Civil Procedure ) Dismissal
     In reviewing a motion to dismiss for failure to state a claim, a court must assume that the facts alleged in the complaint are true and view them in the light most favorable to the plaintiff. Pau v. Kansou, 8 FSM Intrm. 524, 526 (Chk. 1998).

Constitutional Law ) Declaration of Rights
     The Declaration of Rights protects persons from acts of the governments, and those acting under them, established or recognized by the Constitution.  Pau v. Kansou, 8 FSM Intrm. 524, 526 (Chk. 1998).

[8 FSM Intrm. 525]

Civil Rights
     When none of the defendants is a governmental entity, or someone alleged to have acted under color of law, or a private person, not acting under color of law, but who injures, oppresses, threatens, or intimidates another in exercising or enjoying or having exercised or enjoyed one's civil rights, it is not a civil rights case.  Pau v. Kansou, 8 FSM Intrm. 524, 526 (Chk. 1998).

Torts ) Infliction of Emotional Distress
     For a negligent infliction of emotional distress claim to be compensable, a physical manifestation is required.  Pau v. Kansou, 8 FSM Intrm. 524, 526 (Chk. 1998).

Property; Transition of Authority
     Trust Territory Code Title 67 remains in effect in Chuuk through the Chuuk Constitution Transition Clause.  Pau v. Kansou, 8 FSM Intrm. 524, 526 (Chk. 1998).

Jurisdiction; Property ) Land Commission
     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 the land commission can make a determination on the matter.  Pau v. Kansou, 8 FSM Intrm. 524, 526-27 (Chk. 1998).

Jurisdiction; Property ) Land Commission; Torts ) Trespass
     When title to land in a designated registration area becomes an issue in a case involving damage claims for trespass, and there is no pending case before the land commission concerning this land or a previous final determination of ownership, a court may remand the question of ownership to the land commission to be determined within a limited time.  Once ownership is determined, the court may proceed because more than an interest in land is at stake, and the land commission can only adjudicate interests in land.  Pau v. Kansou, 8 FSM Intrm. 524, 527 (Chk. 1998).

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     I have before me the defendants' Motion to Dismiss.  The plaintiff, Fities Pau, filed an opposition, and made some suggestions.  The motion is granted in part and Pau's suggestions are adopted in part.  My reasoning follows.

I.  Nature of Case
     Pau's complaint alleges that the defendants entered his land, which he calls Nefounkech, and removed rocks and dirt therefrom in furtherance of the defendants' rock quarry business on land adjacent to Pau's.  The complaint alleges three causes of action:  negligence for failure to ascertain the rightful owner of the land before entering onto it, trespass, and a deprivation of civil rights in violation of 11 F.S.M.C. 701.  The complaint asserts that the court has jurisdiction because a violation of a national law is alleged and because of diversity of citizenship.  (Manuel Crisostomo, one of the defendants doing business as RIBC, is a citizen of Guam.)  Damages are sought for the unauthorized removal of the rock and soil, for negligent violation of the property rights, for mental anguish, and punitive damages.

     The defendants' answer denies that Pau owns the land in question and raises as affirmative

[8 FSM Intrm. 526]

defenses that the court lacks jurisdiction over the case, that the complaint fails to state a claim upon which relief may be granted, and that the claims are barred by laches and equitable estoppel.

II.  Motion for Dismissal
     I ordered that the first two affirmative defenses be raised by motion.  The defendants then moved for dismissal.

A.  Failure to State a Claim
     The defendants contend that the complaint failed to state a claim upon which relief may be granted when it alleged that the defendants deprived Pau of his civil rights in violation of 11 F.S.M.C. 701 and when it made damage claims for mental anguish and emotional distress as a result of the defendants' alleged negligence. Pau did not oppose this portion of the defendants' motion.  I may consider that a consent to that portion of the motion, FSM Civ. R. 6(d), but I still need proper grounds to grant the motion.  Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994).  In reviewing a motion to dismiss for failure to state a claim, I must assume that the facts alleged in the complaint are true and view them in the light most favorable to the plaintiff.  Latte Motors, Inc. v. Hainrick, 7 FSM Intrm. 190, 192 (Pon. 1995).

     Pau's complaint alleges a taking of his property.  A person's civil rights include protection against the taking of his property.  FSM Const. art. IV, 3.  The Declaration of Rights protects persons from acts of 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).  None of the defendants is a governmental entity or alleged to have acted under color of law.  A private person, "not acting under color of law," may be held liable under 11 F.S.M.C. 701 if he "injures, oppresses, threatens, or intimidates another" in exercising or enjoying or having exercised or enjoyed one's civil rights.  11 F.S.M.C. 701(1).  But no such actions are alleged here.  This is not a civil rights case.  Pau's 11 F.S.M.C. 701 cause of action is hereby dismissed for failure to state a claim upon which relief can be granted.

     Pau makes no allegations of any physical or bodily harm or injury related to his alleged mental anguish.  For a negligent infliction of emotional distress claim to be compensable, a physical manifestation is required.  Eram v. Masaichy, 7 FSM Intrm. 223, 226-27 (Chk. S. Ct. Tr. 1995).  None was alleged.  The mental anguish and emotional distress claim is hereby dismissed for failure to state a claim.

B.  Lack of Jurisdiction
     The defendants contend that, pursuant to section 105 of Title 67 of the Trust Territory Code, the court has no jurisdiction over this case because an interest in land is in dispute and the land is within a designated registration area over which the Land Commission has adjudicative authority.  Pau contends that the real cause of action is trespass, and that should the case be dismissed, laches or the statute of limitations might bar him from renewing the trespass claim once the Land Commission has ruled in his favor on the ownership issue.  Pau suggests that the court should either retain pendent jurisdiction over the ownership issue, or remand the ownership question to the Land Commission and hold the trespass claim in abeyance until the Land Commission has determined the ownership issue.

     Trust Territory Code Title 67 remains in effect in Chuuk through the Chuuk Constitution Transition Clause, Chk. Const. art. XV, 9.  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

[8 FSM Intrm. 527]

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.  The land in question is on the island of Weno.  It is undisputed that all of Weno has been declared a registration area.

     The defendants contend that this statute requires that I dismiss the case.  For this proposition they rely on Barker v. Paul, 6 FSM Intrm. 473, 475-76, 1 CSR 1, 3 (Chk. S. Ct. App. 1994).  Barker was a quiet title action for two parcels of land. The Barker court held that "absent a finding of `special cause' on the record the trial court had no jurisdiction to entertain an action asserting an interest in land located within a designated registration area.  All such actions must be first filed with the Chuuk Land Commission."  Id. at 476, 1 CSR at 3.  The Barker court held that there was no showing in the record of any special cause.  The plaintiff had apparently filed the action in the trial court in order to bypass the Land Commission where the defendant's claim to one of the two parcels was already pending.  Id.  For the other parcel, the Land Commission had many years previously issued a Determination of Ownership, which had never been appealed and was therefore a final determination of the lot's ownership, size and boundaries.  Id. at 476, 1 CSR at 3-4.  The trial court decision was therefore vacated with instructions to dismiss the action and remand the matter to the Land Commission.  Id. at 476, 1 CSR at 4.

     Another case relevant to my decision is Kapas v. Church of Latter Day Saints, 6 FSM Intrm. 56 (App. 1993).  That case started as a trespass action in the trial division, but eventually became a boundary dispute.  The Kapas court vacated the trial court decision and remanded it with instructions to refer the case to the Land Commission for determination of the exact boundary and related matters within one year.  Id. at 61.  Once determined, the Land Commission was to certify its findings to the trial court where the parties could proceed to resolve any remaining issues.  Id.

     I conclude that this case is more like Kapas than Barker.  This is not a quiet title action.  The defendants do not claim ownership of the land in question.  They only deny that Pau owns it.  There are other issues involved ) damage claims for trespass ) should Pau be determined the owner.  As far as is known, there is no pending case before the Land Commission concerning this land.  Nor is there a previous final determination.  This case, like Kapas, started as a trespass action. More than an interest in land is at stake, and the Land Commission can only adjudicate interests in land.

     I will therefore follow the procedure in Kapas.  The issue of whether Pau owns the land in question will be referred to the Land Commission.  (Although Pau may have shown special cause for the court to retain jurisdiction with the perceived statute of limitations problem to his trespass claim should the case be dismissed, I do not have to decide this point if I follow the guidance of Kapas.)  Should it be determined that Pau owns any of the land upon which the alleged trespass has occurred, Pau may then proceed with this case in this court.

     This case is therefore remanded to the Chuuk Land Commission to determine whether the plaintiff is the owner of the land in question.  It shall make this determination by November 30, 1999, and certify its findings to the parties and this court.  If the Land Commission has not completed its work by that date, the plaintiff may request further action in this court.

III.  Conclusion
     The plaintiff's civil rights cause of action and his emotional distress and mental anguish claims are hereby dismissed for failure to state a claim upon which relief may be granted.  This case is remanded to the Chuuk Land Commission to determine whether the plaintiff is the owner of the land in question.  The parties shall promptly file their claims before the Land Commission and include a copy

[8 FSM Intrm. 528]

of this order.
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