Asumen Venture Inc v Board of Trustees [2003] FMSC 63; 12 FSM Intrm. 84 (Pon. 2003) (10 September 2003)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Asumen Venture, Inc. v. Board of Trustees, [2003] FMSC 63; 12 FSM Intrm. 84 (Pon. 2003)

[2003] FMSC 63; [12 FSM Intrm. 84]

ASUMEN VENTURE, INC.,
Plaintiff,

vs.

BOARD OF TRUSTEES FOR THE POHNPEI PUBLIC
TRUST LANDS and BERU MENDIOLA,
Defendants.

CIVIL ACTION NO. 2002-049

ORDER GRANTING IN PART MOTIONS TO DISMISS COMPLAINT

Andon L. Amaraich
Chief Justice

Decided: September 10, 2003

APPEARANCES:

For the Plaintiff:
Salomon Saimon, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendant (Board of Trustees):
Marstella Jack, Esq.
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

[12 FSM Intrm. 85]

For the Defendant (Mendiola):
Kosaksy Phillip, Esq.
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

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HEADNOTES

Administrative Law - Judicial Review
Exhaustion of remedies means that one must follow whatever procedures are in place to seek reconsideration of an agency's allegedly erroneous decision (within the agency itself) or to seek the decision’s reversal at the administrative level (often by the executive body overseeing the agency) before bringing the dispute to the judiciary’s attention. Asumen Venture, Inc. v. Board of Trustees, [2003] FMSC 63; 12 FSM Intrm. 84, 89 (Pon. 2003).

Administrative Law - Judicial Review
A plaintiff's complaint will not be dismissed because a plaintiff failed to exhaust its administrative remedies by not presenting the substance of its complaint to an agency before filing it with the court when the defendant cannot point to any administrative procedure that the plaintiff should have followed before filing the action, but did not. Asumen Venture, Inc. v. Board of Trustees, [2003] FMSC 63; 12 FSM Intrm. 84, 89-90 (Pon. 2003).

Administrative Law - Judicial Review
When a plaintiff's claims for unjust enrichment, tortuous interference with contract and fraud arise out of the same operative facts, but are against a defendant personally and are distinctly separate from those which have been brought against the administrative agency, they are tort claims against which the individual, not the agency, needs to defend, and regarding which the agency is not authorized to make judicial determinations. Asumen Venture, Inc. v. Board of Trustees, [2003] FMSC 63; 12 FSM Intrm. 84, 90 (Pon. 2003).

Administrative Law - Judicial Review; Federalism - Abstention and Certification
When a state administrative agency asks that the FSM Supreme Court not exercise jurisdiction in a case because the case involves a question about land, and land issues are best (and traditionally) left to the state court, but when a deeper analysis reveals that the case is not fundamentally a land case, but rather one in which the court is being asked to review an agency's action and determine whether that action was lawful from an administrative or procedural point of view, not a substantive one, the question presented is not whether the plaintiff is entitled to the assignment of the lease in question, but rather whether the board possessed the authority to reconsider its decision and, if so, did it do so in a manner that recognized plaintiff's rights under the FSM Constitution. In such a case, the FSM Supreme Court does not lack subject matter jurisdiction, and the plaintiff's complaint will not be dismissed. Asumen Venture, Inc. v. Board of Trustees, [2003] FMSC 63; 12 FSM Intrm. 84, 90 (Pon. 2003).

Constitutional Law - Case or Dispute - Standing; Property - Public Lands
When a plaintiff obtained an assignment that was registered and subsequently dissolved by the Public Lands Board, the plaintiff was directly and adversely affected by the Board's decision, and thus has standing to sue the Board. There can be no question that the plaintiff is the real party in interest. Asumen Venture, Inc. v. Board of Trustees, [2003] FMSC 63; 12 FSM Intrm. 84, 90 (Pon. 2003).

Civil Procedure - Dismissal
When reviewing arguments that a plaintiff has failed to state a claim upon which relief can be

[12 FSM Intrm. 86]

granted, the standard is onerous: a claim will not be dismissed on this ground unless it can be said, to a certainty, that no relief can be granted under any facts that could be proven by the plaintiff in support of its claims. Furthermore, the court must assume that the facts alleged in the complaint are true, and it must view the facts and inferences drawn from the complaint in the light most favorable to the party opposing the motion to dismiss. Asumen Venture, Inc. v. Board of Trustees, [2003] FMSC 63; 12 FSM Intrm. 84, 91 & n.2 (Pon. 2003).

Administrative Law - Judicial Review
When, through the discovery process, further briefing, and a trial, a plaintiff could show that an agency acted in a manner that violated its statutory duties and when its motion to dismiss fails to set forth the applicable laws and administrative rules that dictate how it conducts business, the court is disinclined to decide as a matter of law that its actions were authorized, lawful, and procedurally correct and will allow the claim to remain, allow further briefing and discovery, and then entertain a motion for summary judgment. Asumen Venture, Inc. v. Board of Trustees, [2003] FMSC 63; 12 FSM Intrm. 84, 91 (Pon. 2003).

Civil Procedure - Dismissal; Constitutional Law - Equal Protection
When in an equal protection claim, the record contains a document in which the defendant agency expressly referred to the claimants' race, the defendants have not met their burden under the applicable standard of review for dismissal for failure to state a claim because the question is not whether the plaintiff has proven its claim, but whether under any set of facts it could do so. Asumen Venture, Inc. v. Board of Trustees, [2003] FMSC 63; 12 FSM Intrm. 84, 91 (Pon. 2003).

Constitutional Law - Due Process; Property - Public Lands
The public entity responsible for public lands is required to make its decisions openly and after giving appropriate opportunity for participation by the public and interested parties. Asumen Venture, Inc. v. Board of Trustees, [2003] FMSC 63; 12 FSM Intrm. 84, 91 (Pon. 2003).

Civil Procedure - Dismissal; Civil Rights; Constitutional Law - Due Process - Notice and Hearing
When the plaintiff received notice of the hearing and had an opportunity to present its arguments to the agency, when, although the agency would have done well to explain its reasons for rejecting plaintiff's arguments, it was not legally required to do so, and when the record shows that a hearing was held, a rehearing was held, the parties were allowed to have their attorneys present, the parties were given the opportunity to file written briefs and did so, and the agency thereafter issued a 13-page written decision, the plaintiff's claim that its due process rights were violated will be dismissed for failure to state a claim, as will a civil rights claim inextricably tied to the due process claim. Asumen Venture, Inc. v. Board of Trustees, [2003] FMSC 63; 12 FSM Intrm. 84, 91-92 (Pon. 2003).

Civil Procedure - Dismissal
When there is a factual dispute on the plaintiff's unjust enrichment claim, and when it cannot be said with certainty that no relief can be granted if the facts alleged by the plaintiff are proven, the claim cannot be dismissed. Asumen Venture, Inc. v. Board of Trustees, [2003] FMSC 63; 12 FSM Intrm. 84, 92 (Pon. 2003).

Civil Procedure - Dismissal; Torts - Interference with Contractual Relationship
When the plaintiff alleges facts regarding a defendant having familial ties that gave him either inside information or favorable treatment in the proceeding below that dissolved the plaintiff's public land assignment, under the relevant standard of review, the tortious interference with contract claim cannot be dismissed at this point. Asumen Venture, Inc. v. Board of Trustees, [2003] FMSC 63; 12 FSM Intrm. 84, 92 (Pon. 2003).

[12 FSM Intrm. 87]

Civil Procedure - Dismissal; Civil Procedure - Pleadings; Torts - Fraud
When the plaintiff's complaint seems to plead fraud, and a defendant moves to dismiss for failure to state a claim but the argument is that this claim should be dismissed because it was not plead with particularity, the court may treat that as a request for a more definite statement, grant the request, and require the plaintiff to amend its complaint to state with greater clarity which facts it believes constitute fraud. Asumen Venture, Inc. v. Board of Trustees, [2003] FMSC 63; 12 FSM Intrm. 84, 92 (Pon. 2003).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

Defendant Board of Trustees for the Pohnpei Public Trust Lands ("Board") and defendant Beru Mendiola ("Mendiola") have each filed motions to dismiss plaintiff Asumen Venture's complaint in the above-referenced matter. For the reasons that follow, the Court denies both motions except for their challenge to plaintiff's two due process claims.

The following facts are undisputed, except where otherwise noted. Plaintiff is a corporation whose shareholders are FSM citizens and residents of Chuuk and Pohnpei. Defendant Board is a state entity which acts as a trustee to all rights, title and interest in public lands on Pohnpei. Defendant Mendiola is an FSM citizen and resident of Pohnpei.

In October 1961, a 20-year lease for Public Land Tract No. 009-A-32 was issued by the Public Lands Board to defendant Mendiola's father, Pedro. In November 1981, the Board approved the renewal of that lease for another 20 years. In May 1988, Mendiola's father designated his son Beru to succeed him on the lease. In October 1988, defendant and the Board entered into a commercial lease agreement which covers the same tract of land and allows it to be used for a fish market, restaurant and auto repair shop. The lease requires that Beru Mendiola not assign or sublease the lease unless the Board agrees to the assignment or sublease, in writing. It also provides that any "unauthorized attempt to mortgage, assign or sublease shall be null and void and shall confer no right, title or interest in or to the lease or right of occupancy[.]"

In 1996, Beru Mendiola and Millie Asumen (subsequently incorporated as Asumen Venture) executed a document entitled "Lease Agreement," covering the same tract of land and allowing it to be used by Ms. Asumen for a machine shop. It is apparently undisputed that that document should have been entitled "Sublease Agreement" and should have been presented to the Board for its approval, but was not.

Then, in 1999, Beru Mendiola and Asumen Venture executed a document that presents two different transactions - an assignment, and an amended sublease. The amended sublease portion of the document essentially corrects the erroneous "Lease" language that had been used in the parties' first document, and places that transaction before the Board for its approval. The assignment portion of the document transforms Asumen Venture from the position of rent-payer to rent-collector, and removes from Mendiola all of his rights and interest in the leased property. At the time of this transaction, Asumen Venture paid a sum of money to Mendiola.

The "Assignment and Amended Sublease Agreement" document was apparently presented to the Board as "an Assignment and in the alternative an amended sub-lease agreement on parcel number 009-A-32." The Board approved something. Plaintiff Asumen Venture argues that the Board approved the Assignment. The Board contends that it approved the Sublease.

[12 FSM Intrm. 88]

There are also disputed facts relating to whether plaintiff's attorney appeared before the Board as the representative of both plaintiff and Mendiola. There are disputes as to whether a notary public later placed a stamp on the "Assignment" document signed by Mendiola and Asumen, whether Mendiola understood what he was signing, and whether Asumen had prepared the document only because it was needed in order to obtain funds from a foreign bank, not because the parties intended to remove Mendiola's interest in the parcel of land. There are also questions about whether promises were made to plaintiff by Mendiola regarding when the Board would approve the assignment, and whether promises were made as a result of Mendiola having a relative who works in state government.

Shortly after the Board approved either the sublease or the assignment, the Board members were replaced by new members. The new Board was told by plaintiff's attorney that the previous Board had approved the Assignment. Accordingly, the new Board submitted the necessary paperwork and the lease assignment was registered with the Board of Land Tenure.

Mendiola learned of this, and asked the Board to reconsider its decision. He alleged fraud, misrepresentation and mistake. A hearing was held. Both parties presented evidence and arguments. The new Board looked at the previous Board's journal entries and determined that it had actually approved only the "amended sublease" portion of the document. The new Board found that the registration of the new assignment was therefore a product of "mistake, misinformation and clerical error."

As a result, the Board reversed its decision and dissolved the assignment. It is not entirely clear what position the parties were left in. On page 9 of its written opinion, the Board states that it "will leave the parties where it finds them (with their 'null and void' agreement), unless and until it is revived and receives favorable action from the Board." However, at the end of that opinion, on page 13, the Board states: "the Management is directed to retrieve the document entitled Commercial Lease Agreement ... and to forthwith prepare a substituted document giving effect to the August 29, 1996 Lease, otherwise, (Sublease) Agreement with the amendments approved by the Board on January 9, 2001." (emphasis supplied).

The Present Litigation

Plaintiff Asumen Venture filed its Complaint in this Court on December 30, 2002. Several motions to enlarge time have been granted to the parties to answer, reply and oppose. The defendants ultimately elected to respond to plaintiff's Complaint not by Answer, but by Motions to Dismiss.

In its Complaint, plaintiff seeks the following: (1) a declaratory judgment stating that the Board's reversal of its decision was beyond the Board's statutory authority ("was a violation of its duties"), applied the wrong legal standard and procedure, and cannot be given legal effect, hence, the initial approval of the assignment by the Board must be deemed valid; (2) an award of damages because the Board's reversal of its initial decision violated the constitutional guarantees of equal protection in that it was allegedly tied to the fact that Mrs. Asumen is Chuukese and her husband is Filipino - i.e., it was allegedly based on "race, ancestry, language and social status;" (3) an award of damages for violation of plaintiff's due process rights because the Board's decision to reverse its initial approval of the assignment was allegedly made "prior to the orchestrated hearing" and because the Board did not have authority to reverse its decision; (4) an award of damages, attorney fees and costs for the Board's termination of plaintiff's lease "illegally and without due process," in violation of plaintiff's civil rights; (5) a finding that defendant Mendiola was unjustly enriched (by the funds given by plaintiff in exchange for the assignment which plaintiff did not ultimately obtain); (6) a finding that Mendiola engaged in tortious interference with a contract and plaintiff's business plans; and (7) a finding that Mendiola committed fraud.

[12 FSM Intrm. 89]

In his motion to dismiss, defendant Mendiola argues: (1) plaintiff failed to exhaust its administrative remedies because it didn't submit its claims (which are set forth in the Complaint) to the Board "for settlement" prior to filing the Complaint in this Court; (2) under the same theory, plaintiff was required to submit to the Board the claims that are against Mendiola personally (unjust enrichment, tortuous interference with contract, fraud) because those claims arise out of the same operative facts; (3) plaintiff was required to file its complaint in the Pohnpei state court; (4) the complaint should be dismissed for lack of jurisdiction because the national court has no subject matter jurisdiction and because of arguments 1 through 3, above; (5) the complaint should be dismissed "for lack of standing" because plaintiff does not have a valid lease and therefore lacks standing to sue on the lease, and also because the original lease was executed by Millie Asumen, not Asumen Venture, who is the plaintiff in this action; and lastly, (6) the complaint should be dismissed for failure to state a claim upon which relief can be granted, for the following reasons: (a) the Board did not violate its statutory duties by rehearing and reversing its decision, because the statute gives the Board "perpetual juridical existence," and plaintiff cannot be heard to argue that the Board lacked authority to reconsider when plaintiff treated the board as a judicial authority throughout the proceedings below, and even agreed to the Board's reconsideration of its initial decision; (b) plaintiff "has failed to provide any evidence of discrimination by the Board" and therefore plaintiff's equal protection claim is unfounded; (c) plaintiff's violation of due process rights argument is based on the specious argument that the Board had "made up its mind before the hearing" because the Board didn't mention plaintiff's argument in its decision, but the Board didn't mention those arguments because they were irrelevant to the real issues raised; (d) plaintiff argues that its civil rights were violated because its due process rights were violated; however, because plaintiff is wrong on the second half of that argument, it is wrong on the first half; (e) defendant was not unjustly enriched and plaintiff should not be allowed to get a refund on the "rent" that it paid to defendant; (f) defendant did not interfere with plaintiff's contracts; he simply protected his interests in the land and everything he did was "in accordance with the law;" and (g) the elements of fraud have not been established by plaintiff and it hasn't stated the allegedly fraudulent circumstances "with particularity," as required by case law and rule.

Defendant Board of Trustees also filed a Motion to Dismiss plaintiff's complaint. It argues "failure to state a claim upon which relief can be granted" and "lack of subject matter jurisdiction," as follows: (1) Plaintiff's argument that the Board lacks authority to correct its own errors "is absurd" and has no basis in the law; and (2) the question of whether the Board had authority to correct its error "relates to matters of Pohnpei State law. No issue of national law, or national interest in involved. Thus the appropriate recourse that the plaintiff should take is to seek remedy through the appeal process to the Pohnpei Supreme Court." Board's Motion to Dismiss, at 6. The Board asks this court to either remand "the public land issue" to the Public Land Authority if it has erred procedurally, or to abstain and allow the Pohnpei State Court to adjudicate this matter relating to state government.

Exhaustion of Administrative Remedies

As noted above, Mendiola contends that plaintiff's complaint must be dismissed because plaintiff failed to exhaust its administrative remedies by not presenting the substance of its complaint to the Board before filing it with this Court.[1] That is incorrect. Exhaustion of remedies means that one must follow whatever procedures are in place to seek reconsideration of an agency's allegedly erroneous decision (within the agency itself) or to seek reversal of the decision at the administrative level (often by the executive body overseeing the agency) before bringing the dispute to the attention of the judiciary. See Choisa v. Osia, [1998] FMCSC 1; 8 FSM Intrm. 567, 569 (Chk. S. Ct. Tr. 1998) ("When an administrative

[12 FSM Intrm. 90]

remedy is provided by statute, relief ordinarily must not only be sought initially from the appropriate administrative agency but such remedy usually must be exhausted before a litigant may resort to the courts.") Mendiola does not point to any administrative procedure that plaintiff should have, but did not, follow before filing this action.

Mendiola also argues that because plaintiff's claims against him for unjust enrichment, tortuous interference with contract and fraud arise out of the same operative facts, plaintiff had to present those claims to the Board, too, prior to filing them with this Court. That is patently incorrect. The claims against Mendiola personally are distinctly separate from those which have been brought against the Board. They are tort claims against which Mendiola, not the Board, needs to defend, and in any event Mendiola points to no law under which the Board is authorized to make judicial determinations regarding tort claims.

In sum, the defense of failure to exhaust administrative remedies is not warranted by either the facts of this case or the law, and provides no basis for dismissing the Complaint.

State Court Jurisdiction

Defendant Mendiola argues that because plaintiff could have filed its complaint in the Pohnpei state court, plaintiff should have done that. That provides no legal basis for dismissing plaintiff's complaint. The fact that the state court has the authority to review a matter such as this does not limit plaintiff to seeking review in that court alone.

For its part, the Board of Trustees does not seem to question that this Court possesses jurisdiction. It simply asks that the Court not exercise jurisdiction because the case involves a question about land, and land issues are best (and traditionally) left to the state court.

Although the Board's argument contains facial appeal, a deeper analysis reveals that this case is not fundamentally a "land case." Rather, it is one in which the Court is being asked to review an agency's action and determine whether that action was lawful from an administrative or procedural point of view, not a substantive one. The question presented is not, "Under the facts of this case, is plaintiff entitled to the assignment of the lease in question?" but rather, "Did the Board possess the authority to reconsider its decision and, if so, did it do so in a manner that recognized plaintiff's rights under the FSM Constitution?" In any event, the specific question presented by the motions now before the Court is whether plaintiff's complaint must be dismissed because this court lacks subject matter jurisdiction. The answer to that question is clearly "no."

Standing

As noted above, defendant Mendiola argues that plaintiff's complaint should be dismissed because plaintiff does not have a valid lease and therefore lacks standing to sue on the lease, and also because the original lease was executed by Millie Asumen, not the corporate entity Asumen Venture, which is the plaintiff in this action. Neither argument contains merit. Plaintiff obtained an Assignment that was registered and subsequently dissolved by the Board. It was directly and adversely affected by that decision. Accordingly, plaintiff has standing to sue the Board. As to the lease, the record shows that Millie Asumen signed the original lease and that she again signed - on behalf of Asumen Venture - the Assignment document. There can be no question that Asumen Venture is the real party in interest.

[12 FSM Intrm. 91]

Failure to State a Claim

When reviewing defendants' arguments that plaintiff has failed to state a claim upon which relief can be granted, the standard is onerous: A claim will not be dismissed on this ground unless it can be said, to a certainty, that no relief can be granted under any facts that could be proven by plaintiff in support of its claims.[2] As noted above, plaintiff's claims are that the Board's reversal of its decision was beyond its statutory authority, applied the wrong legal standard and procedure, was unconstitutionally based on race, did not provide due process (because the Board's decision was allegedly made prior to an "orchestrated" hearing) and, as a consequence, violated plaintiff's civil rights. Plaintiff also claims that defendant Mendiola was unjustly enriched, engaged in tortious interference with plaintiff's contract and business plans, and committed fraud.

A. Board lacked statutory authority. Through the discovery process, further briefing, and a trial, could plaintiff show that the Board acted in a manner that violated the Board's statutory duties? The Board argues that it is "absurd" to claim that it lacked authority to correct its own errors. However, the Board's motion to dismiss fails to set forth the applicable laws and administrative rules that dictate how it conducts business, so the Court is disinclined to decide as a matter of law that the Board's actions were authorized, lawful, and procedurally correct. Granted, plaintiff's argument that the Board lacked authority to reconsider may be specious, given that plaintiff treated the board as a judicial authority throughout the proceedings below and even agreed to the Board's reconsideration of its initial decision. However, the Court will allow this claim to remain in the case, allow further briefing and discovery, and then entertain a motion for summary judgment.

B. Board discriminated on basis of race. The Board does not dispute this claim in its motion to dismiss; it remains silent. Defendant Mendiola argues that plaintiff has "failed to provide any evidence" relating to discrimination and therefore plaintiff's equal protection claim must be dismissed at this juncture because it is "unfounded." To the contrary, the record contains a document in which the Board expressly referred to the race of Mr. and Mrs. Asumen. In any event, the question is not whether plaintiff has proven its claim, but whether under any set of facts it could do so. Defendants have not met their burden under the applicable standard of review. Accordingly, this claim shall remain in the case.

C. Board violated plaintiff's due process rights. The public entity responsible for public lands is required to make its decisions "openly and after giving appropriate opportunity for participation by the public and interested parties. Etpison v. Perman, [1984] FMSC 3; 1 FSM Intrm. 405, 420-21 (Pon. 1984). Here, plaintiff claims that the Board had "made up its mind before the hearing." As factual support for that claim, plaintiff points to the fact that the Board didn't mention plaintiff's arguments in the Board's written opinion, which was issued after the hearing. Plaintiff does not allege that it received no notice of the hearing, or that it was denied an opportunity to present its arguments to the Board. Although the Board would have done well to explain its reasons for rejecting plaintiff's arguments, it was not legally required to do so. The record shows that a hearing was held, a rehearing was held, the parties were allowed to have their attorneys present, the parties were given the opportunity to file written briefs and did so, and the Board thereafter issued a 13-page written decision. Plaintiff points to no facts, and the Court is unable to imagine facts which, on this record, could prove plaintiff's argument that it was denied due process.

[12 FSM Intrm. 92]

Plaintiff's claim that its due process rights were violated it is hereby dismissed for failure to state a claim.

D. The Board violated plaintiff's civil rights by violating due process. This claim is inextricably tied to the claim discussed above. Plaintiff's argument is that its civil rights were violated because its due process rights were violated. Having determined that the due process claim is not well taken, the Court dismisses this claim, as well, for failure to state a claim upon which relief may be granted.

E. Unjust Enrichment. Defendant Mendiola argues that this claim should be dismissed because plaintiff is improperly trying to obtain a refund on the rent that plaintiff paid. Plaintiff responds that it advanced considerable funds to defendant, for the purchase of the desired assignment; it seeks a return of those funds because it did not get the assignment. Because there is a factual dispute on this issue, and it cannot be said with certainty that no relief can be granted if the facts alleged by plaintiff are proven, this claim cannot be dismissed.

F. Tortious Interference with Contract. Defendant Mendiola argues that this claim should be dismissed because he was simply protecting his interests in the parcel of land. That may be the case, but plaintiff alleges facts regarding Mendiola having familial ties that gave him either inside information or favorable treatment in the proceeding below. Under the relevant standard of review, this claim cannot be dismissed at this point.

G.Fraud. Plaintiff's complaint seems to plead that because Mendiola took the money for the assignment and then caused the dissolution of that assignment, Mendiola committed fraud. Although placed in its motion to dismiss for failure to state a claim, defendant Mendiola's argument is that this claim should be dismissed because it was not plead with particularity. The Court will treat that as a request for a more definite statement, FSM Civ. R. 12(e), grant the request, and require plaintiff to amend its complaint to state with greater clarity which facts it believes constitute fraud.

In light of the above, the Court hereby grants in part and hereby denies in part the defendants' motions to dismiss. All of plaintiff's claims except the two relating to due process are retained. Plaintiff's third and fourth causes of action are hereby dismissed for failure to state a claim. Leave is granted until September 15, 2003, to amend the complaint to make more definite and certain the seventh cause of action.

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^[1] The Board does not join Mendiola in raising the affirmative defense of failure to exhaust administrative remedies.
^[2] Furthermore, the Court must assume that the facts alleged in the complaint are true, and the facts and inferences drawn from the complaint must be viewed by the Court in the light most favorable to [the] party opposing the motion to dismiss." Union Indus. Co. v. Santos, [1995] FMSC 41; 7 FSM Intrm. 242, 244 (Pon. 1995).