FSM SUPREME COURT TRIAL DIVISION
Cite as Mobil Oil Micronesia, Inc. v. Pohnpei Port Auth.,
13 FSM Intrm. 223 (Pon. 2005).

[13 FSM Intrm. 223]

MOBIL OIL MICRONESIA, INC.,

Plaintiff,

vs.

POHNPEI PORT AUTHORITY,

Defendant.

CIVIL ACTION NO. 2003-024

ORDER GRANTING MOTION TO DISMISS IN PART

Andon L. Amaraich

Chief Justice

Decided: April 29, 2005

APPEARANCES:

For the Plaintiff:  Fredrick L. Ramp, Esq.

                                Law Office of Fredrick L. Ramp

                                P.O. Box 1480

                                Kolonia, Pohnpei   FM   96941

For the Defendant:   Emeka Eric Akamigbo, Esq.

                                      Assistant Attorney General

                                      Pohnpei Department of Justice

                                      P.O. Box 1555

                                      Kolonia, Pohnpei   FM   96941

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HEADNOTES

Contracts; Property

     The Pohnpei Development Leasehold Act says that every development lease must contain a covenant stating that the lessor shall have the rights of future benefit to the improvements placed on the land by or on behalf of the lessee and that, upon the leaseís termination, existing improvements thereon shall become the property of the lessor thereof or his successor in interest without further cost or condition to be met by the lessor, the propertyís title holder or any successor in interest to said property. Mobil Oil Micronesia, Inc. v. Pohnpei Port Auth., 13 FSM Intrm. 223, 225 n.1 (Pon. 2005).

Sovereign Immunity ) Pohnpei

     The Pohnpei Government Liability Act immunizes the State of Pohnpei and its employees from suit unless the claim underlying the suit is specifically authorized by the Act or some other state law, and even with respect to those claims, the Act imposes a variety of restrictions and limitations on the maintenance of those suits. The Actís definition of State of Pohnpei includes all branches of government, any corporation, and other person or entity primarily acting as instrumentalities or agencies

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of the government, and all boards, commissions, public corporations, authorities, departments, divisions or offices of the government and this definition is more than broad enough to encompass the Pohnpei Port Authority. Mobil Oil Micronesia, Inc. v. Pohnpei Port Auth., 13 FSM Intrm. 223, 226 & n.2 (Pon. 2005).

Sovereign Immunity ) Pohnpei; Statutes of Limitation

     Tort claims, tax claims, contract claims, breach of fundamental rights, claims for damages, injunctive relief or writ of mandamus arising from the alleged unconstitutionality or improper administration of Pohnpei statutes or regulations, any other civil action or claim against the state founded upon any law or any regulation, or upon any express or implied contract with the Pohnpei government or for liquidated or unliquidated damages in cases not sounding in tort, and actions for collection of judgments based on claims allowed against the State of Pohnpei can be sued upon within two years of the date on which they accrue. Mobil Oil Micronesia, Inc. v. Pohnpei Port Auth., 13 FSM Intrm. 223, 226-27 (Pon. 2005).

Statutes of Limitation

     A claim against Pohnpei has accrued when all of the facts comprising said claim exist, regardless of whether said facts are known or have been discovered by the claimant. Mobil Oil Micronesia, Inc. v. Pohnpei Port Auth., 13 FSM Intrm. 223, 227 (Pon. 2005).

Statutes of Limitation

     Applying the Pohnpei Government Liability Act statue of limitations, as well as its test for determining when a claim accrues, Mobilís cause of action for contract reformation accrued on September 30, 1997 when it signed the lease agreement underlying this lawsuit since all facts comprising its cause of action for reformation existed at that time whether Mobil knew it or not. Accordingly, Mobil was required to file its claim for reformation by no later than September 30, 1999. Because it did not do so, the claim will be dismissed. Mobil Oil Micronesia, Inc. v. Pohnpei Port Auth., 13 FSM Intrm. 223, 227 (Pon. 2005).

Civil Rights; Sovereign Immunity ) Pohnpei; Statutes of Limitation

     Since, by its own terms, the Pohnpei Government Liability Act statute of limitations is applicable only to those claims identified in Section 4 of that Act, which identifies a number of different claims, including claims based on violation of Pohnpei state law such as the Pohnpei Constitution, but does not expressly identify claims that are based upon national law or the National Constitution, the plaintiffís claim for declaratory judgment based on violation of the National Constitution and its claim for damages for civil rights violations under 11 F.S.M.C. 701(3) are not subject to the Actís statute of limitations and will not be dismissed on the ground that they are time barred by that statute of limitations. Mobil Oil Micronesia, Inc. v. Pohnpei Port Auth., 13 FSM Intrm. 223, 227-28 (Pon. 2005).

Administrative Law ) Judicial Review; Civil Procedure ) Pleadings

     Failure to exhaust administrative remedies is an affirmative defense. Thus, the plaintiff is not required to plead and prove that it has exhausted its remedies. Rather, the burden to plead and prove the defense falls upon the defendant. Mobil Oil Micronesia, Inc. v. Pohnpei Port Auth., 13 FSM Intrm. 223, 228 (Pon. 2005).

Civil Procedure ) Dismissal; Statutes of Limitation

     Because the allegations of the plaintiffís own complaint demonstrate that certain of its claims are subject to the defense of statute of limitations, the court may chose to dismiss those claims on the statute of limitations, although it is an affirmative defense. Mobil Oil Micronesia, Inc. v. Pohnpei Port Auth., 13 FSM Intrm. 223, 228 (Pon. 2005).

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Constitutional Law ) Case or Dispute ) Ripeness

     When the plaintiffís claims all derive from the common allegation that its facility will be taken from it at the end of the partiesí lease, when the parties have signed a lease agreement that purports to confer ownership of the facility on the defendant at a specified time, and when the parties have a good faith dispute as to the validity of this result under the National Constitution, this renders the case ripe for adjudication. Mobil Oil Micronesia, Inc. v. Pohnpei Port Auth., 13 FSM Intrm. 223, 229 (Pon. 2005).

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COURTíS OPINION

ANDON L. AMARAICH, Chief Justice:

     This matter is before the Court on the motion to dismiss filed by Defendant Pohnpei Port Authority ("PPA"). For the reasons set forth below, the Court will grant the motion in part.

I.

     At some unspecified time prior to September of 1997, Plaintiff Mobil Oil Micronesia, Inc. ("Mobil") constructed a bulk petroleum facility (the "Facility") on certain land located in the commercial port area of Pohnpei (the "Port Land") and owned by PPA. The value of the Facility constructed by Mobil presently exceeds $1 million. It is not clear from the complaint whether, at the time Mobil constructed the Facility, it held a valid lease on the Port Land from PPA.

     In September of 1997, PPA and Mobil entered a formal lease agreement for the Port Land. The term of the lease was 25 years. Subparts (A) and (D) of Paragraph XXI of the lease provided that on the expiration of the leaseís 25-year term, the Facility would become the property of PPA. Mobil refers to Subparts (A) and (D) of Paragraph XXI as the "Expropriation Provisions" of the lease. For ease of reference, the Court will do so as well.

     Mobil did not receive a discounted rental rate on the Port Land in exchange for signing a lease agreement containing the Expropriation Provisions. The lease agreement also did not obligate PPA to pay Mobil any amount, let alone a reasonable one, in exchange for receiving the Facility at the end of the partiesí lease.

     According to Mobil, PPA mistakenly or fraudulently represented to Mobil that the Pohnpei Development Leasehold Act of 1996, Pon. S.L. No. 4L-21-96, required the parties to include the Expropriation Provisions in their lease agreement. Mobil attempted to persuade PPA that the law in this area was otherwise, but was unsuccessful. Mobil ultimately signed the lease agreement containing the Expropriation Provisions on September 30, 1997. Mobil did so "under duress, written protest and mistake."

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     After the lease agreement was executed, Mobil repeatedly asked PPA to amend the lease to delete the Expropriation Provisions. PPA refused to do so. Mobil filed its complaint against PPA with this Court on September 5, 2003.

II.

     In its complaint, Mobil asserts three distinct claims against PPA. In its first claim for declaratory judgment, Mobil alleges that the Expropriation Provisions of the partiesí lease agreement are an unconstitutional taking of Mobilís Facility without just compensation under both the FSM and Pohnpei Constitutions. In its second claim for Violation of Civil Rights under 11 F.S.M.C. 701(3), Mobil alleges that the Expropriation Provisions "constitute a taking of private property without compensation in violation of the Constitution and laws of the Federated States of Micronesia including the Constitution and laws of the State of Pohnpei." In its third claim for reformation of the lease agreement, Mobil alleges: (1) that Mobil and PPA intended to include the Expropriation Provisions only if required by the Pohnpei Development Leasehold Act; (2) that the Expropriation Provisions are not required under the Act; and (3) that therefore the Expropriation Provisions should be deleted to conform the lease agreement to the partiesí intentions.

III.

     PPA moves for dismissal of Mobilís complaint on three principal grounds. First, PPA argues that Mobilís complaint should be dismissed because all of Mobilís claims are barred by the statute of limitations set forth in the Pohnpei Government Liability Act of 1991, Pon. S.L. No. 2L-192-91 (the "PGLA"). Second, PPA argues that Mobilís complaint should be dismissed because Mobil failed to exhaust its administrative remedies in accordance with the PGLA. Third, PPA argues that Mobilís complaint should be dismissed because its claims are not yet ripe for adjudication.

IV.

     The PGLA is the Pohnpei State Legislatureís declaration of sovereign immunity. The PGLA purports to immunize the State of Pohnpeiand its employees from suit unless the claim underlying the suit is specifically authorized by the PGLA or some other state law. Pon. S.L. No. 2L-192-91, ß 4. Further, even with respect to claims that are specifically authorized by the PGLA or some other state law, the PGLA still imposes a variety of restrictions and limitations on the maintenance of those suits. Of particular relevance at the moment is the statute of limitations imposed by the PGLA.

     With some exceptions not relevant here, the PGLA requires that the following types of claims be sued upon within two years of the date on which they accrue:

(1)  Tort claims. Claims for wrongful death, personal injury or loss of property caused by the negligent or wrongful act or omission of a government employee while acting within the scope of his or her employment, under circumstances and upon such legal evidence

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where the state, if a private person or corporation, would be liable to the claimant.

(2)  Tax claims. Claims for the recovery of any tax alleged to have been erroneously or illegally assessed or collected, or any tax penalty claimed to have been collected without authority, or any sum alleged to have been excessive or improperly collected under applicable tax laws of Pohnpei.

(3)  Contract claims. Claims based upon express or implied contract with the state.

(4)  Breach of fundamental rights. Claims for any injuries suffered consequent to conduct of a government employee, acting under color of law, which violates fundamental rights defined in Article 4 of the Pohnpei Constitution.

(5)  Claims for damages, injunctive relief or writ of mandamus arising from the alleged unconstitutionality or improper administration of the statutes of Pohnpei, or any regulations issued pursuant to such statutes.

(6)  Any other civil action or claim against the state founded upon any law of this jurisdiction or any regulation issued under such law, or upon any express or implied contract with the Pohnpei Government or for liquidated or unliquidated damages in cases not sounding in tort.

(7)  Actions for collection of judgments based on claims allowed in this statute.

Pon. S.L. No. 2L-192-91, ß 4. See also Pon. S.L. No. 2L-192-91, ß 27. For purposes of determining when a particular claim accrues, the PGLA establishes the following test: "[A claim] has [accrued] when all of the facts comprising said [claim] exist, regardless [of] whether said facts are known or have been discovered by the claimant." Pon. S.L. No. 2L-192-91, ß 27.

     Applying the statue of limitations established by the PGLA, as well as the test for determining when a claim accrues, the Court concludes that Mobilís cause of action for reformation (i.e., a claim based on an express or implied contract) accrued on September 30, 1997 when Mobil signed the lease agreement underlying this lawsuit. At that time, all facts comprising Mobilís cause of action for reformation existed whether Mobil knew it or not. Accordingly, Mobil was required to file its claim for reformation by no later than September 30, 1999. Because it did not do so, the claim will be dismissed.

     Turning to Mobilís claim for declaratory judgment, the Court concludes that this claim actually breaks down into two claims, not one. That is, Mobil seeks (1) a declaratory judgment that the Expropriation Provisions of the partiesí lease agreement violate the National Constitution and (2) a declaratory judgment that the Expropriation Provisions of the lease agreement violate the Pohnpei State Constitution. The Court concludes that both of these claims accrued on September 30, 1997 because, by its own allegations, Mobil was aware of all facts underlying the claims on this date. However, the Court also concludes that only the claim for declaratory judgment based on the Pohnpei State Constitution is subject to dismissal under the PGLAís two-year statute of limitations. The claim for declaratory judgment based on the National Constitution is not subject to dismissal on this ground.

     By its own terms, the statute of limitations established by the PGLA is applicable only to those claims identified in Section 4 of the PGLA. Section 4 identifies a number of different claims, including claims based on violation of Pohnpei State law such as the Pohnpei State Constitution. See Pon. S.L. No. 2L-192-91, ß 4(6). But Section 4 does not expressly identify claims for declaratory judgment that

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are based upon National law such as the National Constitution. Accordingly, because Mobilís claim for declaratory judgment based on violation of the National Constitution does not fall into one of the categories of claims set forth in Section 4, it is also not subject to the PGLA statute of limitations. And the claim will not be dismissed on the ground that it is time barred by that statute of limitations.

     A similar analysis applies to Mobilís claim for violation of civil rights under 11 F.S.M.C. 701(3). This claim for damages is primarily based on the allegation that the Expropriation Provisions of the partiesí lease constitute an illegal taking of property under the national constitution and the laws of the FSM. This type of claim does not fall within any of the categories of claims identified in Section 4 of the PGLA and therefore is not subject to the PGLA statute of limitations. Accordingly, the claim will not be dismissed on the ground that it is time-barred by that statute of limitations.

V.

     PPA also claims that each of Mobilís claims should be dismissed because Mobil failed to exhaust its administrative remedies under the PGLA. The Court declines to dismiss any of Mobilís remaining claims on this ground.

     The exhaustion of administrative remedies is an affirmative defense. See Pohnpei v. Ponape Constr. Co., 7 FSM Intrm. 613, 618-19 (App. 1996). Thus, Mobil is not required to plead and prove that it has exhausted its remedies. Rather, the burden to plead and prove the defense falls upon PPA.

     The Court recognizes that it has chosen to dismiss certain claims on the statute of limitations, which is also an affirmative defense. But that is because the allegations of Mobilís own complaint demonstrate that its claims are subject to the defense. See 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ß 1357, at 352-54 (2d ed. 1990). The Court does not believe the same is true with respect to the exhaustion of administrative remedies defense. There is no

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allegation in the complaint showing that Mobil failed to exhaust its administrative remedies. And the law does not require Mobil to include an affirmative statement to this effect to state a claim. Accordingly, the Court will not dismiss any of Mobilís claims on the ground that it failed to plead exhaustion of remedies.

VI.

     PPAís final ground for dismissing Mobilís complaint is that the claims set forth therein are not ripe. In this connection, PPA argues that Mobilís claims, which all derive from the common allegation that Mobilís Facility will be taken from it at the end of the partiesí lease, are not ripe until the lease ends. The Court disagrees. The parties have signed a lease agreement that purports to confer ownership of the Facility on PPA at a specified time. The parties also currently have a good faith dispute as to the validity of this result under the national constitution. This renders the case ripe for adjudication.

VII.

     For the reasons set forth above, the Court grant PPAís motion to dismiss to the following extent:

1.  Mobilís claim for reformation is dismissed.

2.  Mobilís claim for declaratory judgment is dismissed to the extent it is based on violation of Pohnpei State laws, not national laws.

3.  Mobilís claim for violation of civil rights under 11 F.S.M.C. 701(3) is dismissed to the extent it is based on violation of Pohnpei State laws, not national law.

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