url stringlengths 56 59 | text stringlengths 3 913k | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/8486811/ | OPINION AND ORDER
Tuanu'utele Sai (“Tuanu'u”) filed Ms application to be registered as the holder of the matai title Le'i, attached to the village of Ofu, Manu'a. TMs M turn triggered a number of objections and counter-claims, under A.S.C.A. § 1.0407; they Mcluded that of Sonny L. Thompson (“Sonny”), Tikeri N. Thompson (“Tikeri”), Sofern Va'ena (“Va'ena”), and *245Porotesano T. Tuiolosega (“Porotesano”).1 Following unsuccessful mediation attempts before the Secretary of Samoan Affairs, in accordance with the procedure set out in A.S.C.A. § 43.0302, this litigation ensued.
A.S.C.A. § 1.0409(c) prescribes the law which the High Court must follow in determining which matai title candidate shall be the next registered holder. The enactment reads:
In the trial of title cases, the High Court shall be guided by the following considerations, in the priority listed:
(1) the best hereditary right, as to which the male and female descendants are equal in families where this has been customary; otherwise the male descendant prevails over the female;
(2) the wish of the majority or plurality of those clans in the family as customary in that family;
(3) the forcefulness, character and personality of the persons under consideration for the title, and their knowledge of Samoan customs; and
(4) the value of the holder of the title to the family, village, and country.
1. Hereditary Right
With respect to hereditary right, the evidence shows: that Tikeri is the son of Le'i Fereti and his degree of hereditary right is 50%; that Va'ena is the grandson of Le'i Moala and his degree of hereditary right is 25%; that candidate Tuanu'u is the great-grandson of Le'i Moala and his degree of hereditary right is 12.5%; that Porotesano Tuiolosega is the third great grandson of Le'i Isumama and his degree of hereditary right is 3.125%; and that candidate Sonny is the fourth great grandson of Le'i E'e and his degree of hereditary right is 1.56%. It follows, therefore, that Tikeri prevails over the other candidates on this issue.
2. Wish of The Clans
A number of Le'i family gatherings to address the matai vacancy were held in Ofu beginning with a meeting in 1994. Shortly after the first and inconclusive family meeting, Tuanu'u bolted to the Territorial Registrar’s office and offered to register the Le'i title in his name. Notwithstanding, the family further met on the issue and the only emergent consensus that arose at the initial series of meetings was support for either Tuanu'u or Tikeri to hold the title. Rather than *246persisting with the issue until a titleholder was decided upon, the family at a meeting in 1996, merely managed to agree to let Tuanu'u and Tikeri decide between the two of them as to who would be the matai. In effect, the family abdicated its responsibility.
Following this family resolution and after some back and forth between the two leading candidates, Tikeri was eventually offered the title by Tuanu'ú. The latter had apparently been offered the 'ava cup for another vacant Ofu matai title, Sai. Two things, however, stalled, and eventually thwarted any prospect of the Le'i title being registered in Tikeri’s name: first the counter-claims with the office of the Territorial Registrar were not immediately withdrawn, hence the dispute was legally very much alive; second, Tuanu'u’s ambitions towards the Sai title were held in abeyance because of unresolved third-party objections.
A subsequent series of the requisite mediation conferences with the Secretary of Samoan Affairs proved to be of no avail. By letter of November 25, 1997, the Secretary certified an irreconcilable dispute, noting the convening of six meetings with the candidates and their failure to reach a settlement. On January 7, 1988, the matter was then referred to the Land and Titles Division in accordance with A.S.C.A. § 1.0409.2
On the date of filing with the Court, the Clerk’s office prepared and sent out to all the parties, the Court’s Notice to File Questionnaire within 30 days, pursuant to T.C.R.L.T. 3. The only parties who complied with the Rule 3 Notice, however, were Tuanu'u, Tagata A.T. Le'i (who has since passed away), and Tikeri. Sonny did not get around to filing his response to Questionnaire until November 5, 2002, Porotesano on March 4, 2003, two days before trial, while Vaena filed only on March 6, 2003, the day of trial itself. (Notwithstanding a caution contained in the Rule 3 notice to comply within the stated time frame or suffer dismissal of claim, there were, inexplicably, no adverse motions to dismiss were filed by anyone).
Ironically, and while the matter remained pending with the Court as a “disputed claim,” see A.S.C.A. § 1.0409(a), the candidates who had failed to comply with the Court’s Rule 3 notice, took it upon themselves to convene a further meeting, around July 2002, to select a matai. Vaena testified that he had convened and presided at the meeting, and that as *247the presiding official, he had determined that the meeting had resulted in Sonny’s favor.
We find on the evidence that while the Le'i family had met on various occasions to discuss the appointment of a successor matai, the family failed to reach a consensus on any one of party candidates. As previously indicated, the meetings in the late 1990s simply ended with the family effectively abandoning its responsibility to pick a matai. At the same time, the unresolved family impasse with Tuanu'u and Tikeri was never taken back to the family for further deliberation. To confound matters, some of the family elders who were in attendance at the meetings of 1990s had, in the meanwhile, passed on.
As to the gathering convened by Vaena in 2002, all that may be said of this meeting is that it resulted in a settlement concluded only among candidates Vaena, Sonny and then objector/claimant Leama Misiuaita. Indeed, Leama Misiuaita withdrew his candidacy in the looming days of trial to support Sonny, while Vaena quite clearly remained in the litigation not so much for the purpose of actually vying for the title, but for the principal purpose of indicating support for Sonny and to merely establish, for the record, his entitlement. But by the time of this so-called family meeting, the matter of matai succession was already a “disputed” issue squarely before the Court. The Secretary of Samoan Affairs’ certification of an irreconcilable dispute, unquestionably gave the court jurisdiction over all the candidates’ “disputed claim[s].” See Ava v. Logoai, 20 A.S.R.2d 51, 52 (Land & Titles Div. 1992). Therefore, without the stipulation of the other remaining claimants, Tuanu'u, Tikeri, and Porotesano, to Vaena’s proposition of a family consensus in favor of Sonny, the asserted outcome of the 2002 meeting appears to ring rather hollow.
We find the 2002 meeting to be nothing less than posturing efforts, with pending litigation in mind, by parties who not only ignored the Court’s pre-trial notices but who were simply not in the assembled family’s contemplation. Furthermore, we find that the Le'i family did not decide on any one candidate and, hence, no candidate can be said to prevail on this criterion.3
3. Forcefulness. Character and Personality, and Knowledge of Samoan Customs
*248First, we are satisfied that the candidates are more or less equally versed in Samoan customs; they each live and practice it from day to day. However, in terms of forcefulness, Tuanu'u, Sonny and Tikeri have shown greater gumption and initiative in the manner they have extended their respective educational pursuits beyond the secondary school level. This is more so given the relative hardship of early life in Ofu. Sonny and Tikeri went further to the collegiate level, where each acquired a sound educational foundation that has seen both with good professional careers and leadership roles. Both have also given extensive public service. Sonny retired with the rank of major after twenty-one years of meritorious service with the United States Air Force. Since his return to the Territory, Sonny has worked in the private sector; however, he continues his public service with his involvement with the Territory’s various disaster/emergency related programs. Tikeri’s career, on the other hand, is and has been with the LBJ Tropical Medical Center, the Territory’s only hospital. He is the only nationally licensed pharmacist in American Samoa and his professional certifications have been essential towards the local hospital’s ability to purchase and dispense federally regulated medicines. Sonny and Tikeri surpass the other-candidates on the consideration of forcefulness.
Under the consideration of character and personality, Tikeri impressed most. Against the other candidates, Tikeri appeals to us as a humble, mature, and thoughtful person who has throughout this long drawn out succession ordeal, shown the greatest respect for the family. Too often in matai succession disputes, we recurringly encounter candidate maneuvering, tactics, and strategy motivated solely with individual gain in mind, to the detriment of family preference. For instance, a favored strategy to overcome a perceived adverse family sentiment towards one’s candidacy is the unilateral removal of the matai succession issue altogether from the family, in favor of a government resolution, by premature offers to register the title with the Territorial Registrar. See, e.g., In re Matai Title "Olomua, ” 27 A.S.R.2d 20, 21 (Land & Titles Div. 1994); In re Matai Title “Misa'alefua," 28 A.S.R.2d 106, 109 (Land & Titles Div. 1995). The matter at bar proved to be no exception. When Tuanu'u offered to register the title at the outset, after the family had only met once, he thereby effectively set the family’s agenda, in terms of a slate of candidates, and accordingly fettered any further meaningful family discussion. His action opened the door for other family members, who were not even in the family’s contemplation (Vaena unabashedly confessed that nobody supported his candidacy) to hop aboard the registration bandwagon in hope for the best.4 We have *249already alluded to posturiirg efforts by Vaena, Sonny, and Leama Misiuaita, to advance their conceited agenda even as the issue was before the Court. This agenda was pursued even to the extent of Sonny offering Tikeri the inducement of communal rental income for Tikeri’s use if Tikeri would abandon his claim in favor of the latter’s succession ambitions.
In Tikeri’s case, he was beyond maneuvering, tactics, and strategy. We are satisfied that his purpose throughout this succession process was the advancement of perceived family desire rather than the singular pursuit of his own personal ambitions. Notwithstanding the early upstaging of the family by Tuanu'u’s (Unilateral and impetuous action of taking the matter to the government, Tikeri quietly persevered toward realization of the family’s 1996 mandate. (Implementation of that expressed family desire, however, even after Tuanu'u relented, was simply not possible with the outstanding succession counter-claims of family members who were clearly outside the family’s choosing.) In this, Tikeri showed judgment and a great deal of patience. Comparatively, he stands out on the considerations of character and personality. We find that Tikeri prevails under this heading.
4. Value to Family. Village, and Country
In terms of value to the village, we rate all of the candidates to be about equal. As to public worth, all the candidates have in their different career choices contributed materially to the general well being of the Territory; however, Sonny and Tikeri’s vocational background and experience sets them slightly ahead in this regard. Commensurate with their respective education and training, the public service these candidates have and are rendering is, by comparison, more pronounced in the scheme of things; they each offer a unique expertise. Tikeri’s role with the hospital’s pharmacy is cmcial, just as is Sonny’s disaster related planning background and organizational acumen.
With regard to the consideration of value to the family, we single out Tikeri. Prior to his going off-island to seek his professional training, Tikeri was very much involved with his late father’s administration in the way of tautua (traditional service) to both family and matai. He is more familiar with the family and its natural resources. Indeed, he is currently involved with the administration and preservation of family rental income. It follows that a candidate who is more intimately familiar with family members and assets is in the better position to serve the family as matai. Moreover, we are persuaded that Tikeri is by his nature and general disposition the best candidate to lead the Le'i family. *250We have already alluded to his strong sense of family value — his loyalty to and respect for family regard over his own personal ambitions. With his patience and humility, Tikeri has demonstrated the sort of maturity and tofa (judgment) best suited for family leadership.
All things considered, we find that Tikeri also prevails under this fourth criterion.
Conclusion and Order
On the foregoing, we conclude that Tikeri is qualified to hold the matai title Le'i, attached to the village of Ofu, Manu'a. He prevails on hereditary considerations, as well as on the third, and fourth criteria specified by A.S.C.A. § 1.0409(c).
The Territorial Registrar shall, in accordance with A.S.C.A. § 1.0409(b), register the xnatai title Le'i in candidate Tikeri N. Thompson.
It is so ordered.
By the time of trial, the succession claims of Leana Misiuaita and Tagata A.T. Le'i had been withdrawn.
On February 3, 1998, a subsequent letter, dated February 2, 1998, from the Secretary of Samoan Affairs was filed with Clerk clarifying that while four of the candidates had stipulated to withdrawing, with a fifth having died, two of the candidates were holding out, and hence the continuing dispute.
In view of our findings, we need not at this time decide on the issue of clan definition and the number of clans in the Le'i family. The only thing really clear on the evidence in this regard, apart from the very apparent fact that the research on family history was very much superficial and wanting, is that there was accord on the evidence suggesting that the Le'i family is compromised of more than one clan.
It is not lost on us that the Le'i matai title is that of to 'oto 'o or ranking orator from the Manu'a District. As such, its attendant political prestige is not only relevant within the traditional scheme of things but also within the *249government framework. It is, therefore, a coveted title among family members. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486815/ | UNDERLYING FACTS
On August 15, 1960, Adeline Pritchard Kneubuhl (“Adeline”) transferred several parcels of her individually owned land in American Samoa in trust (“Kneubuhl Trust”) to William Robert Opelle (“William”), as trustee, with her children Frances K. Opelle (“Frances”), Benjamin F. Kneubuhl, Jr. (“Benjamin”), John Alexander Kneubuhl (“John”), Douglass, Margaret, and Alfred as equal beneficiaries.1 The Kneubuhl Trust was recorded with the Territorial Registrar on August 24, 1960. Effective on September 30, 1969, all parties to the Kneubuhl Trust agreed to partition the beneficial interests in particular trust land among the six beneficiaries (“Partition Agreement”). Specifically, the Partition Agreement 1) divided the parcel of the land “being portions of Olo, Tagaua'a, Puapua, Lesea and Aso To'elau” among the trust beneficiaries and 2) conveyed part of a portion of the trust land known as *274“Malaloa” to Frances. The Partition Agreement was recorded with the Territorial Registrar, but not until July 10, 1995.
On October 31, 1974, all parties, John excluded, attempted to again modify the trust (“Modification Agreement”).2 The Agreement purported to give Frances exclusive rights to use a portion of the trust called “Malaloa” and appoint her as successor trustee over that portion, hr addition, the Modification Agreement instructed William to “appoint each beneficiary as a successor trustee over that portion of the corpus of the trust called “Olo” as described in the Partition Agreement. William also was to appoint Alfred as the successor trustee for the remaining portion of the property held in trust.
Also in 1974, five of the six beneficiaries, John excluded, signed a Land Planning Agreement pertaining to contiguous parcels within the partitioned trust land known as “Olo.” The Land Planning Agreement contained the following relevant provisions: 1) reserved the area for single-family homes within minimum sites of 50,000 square feet; 2) required written approval of a majority of the trustees for any development of the land; 3) required approval of a majority of the trustees for any rental of any portion of the land or improvements on the land to anyone not a trustee; and 4) limited any rental agreement to no more than a one-year term. The Land Planning Agreement has not been recorded with the Territorial Registrar.
On December 31, 1979, .Frances leased to Priscilla Moors Muench (“Priscilla”) and Lawrence R. Moran (“Lawrence”) approximately 1.6 acres (approximately 69,600 square feet) of the “Olo” trust land partitioned to Frances for a term of 35 years, commencing upon completion of construction of a residence on the leased land or June 30, 1980, whichever occurred first. This lease agreement (“Lease Agreement”) was recorded with the Territorial Registrar on March 24, 1980.
Under the Lease Agreement, Priscilla and Lawrence retained title to their improvements on the leased land. However, the Lease Agreement gave Frances the right to purchase the improvements, at depreciated value at the time of acquisition, within five years after the demise of Priscilla and Lawrence. Both Priscilla and Lawrence were deceased as of May 13, 1984.
On November 19, 1984, Frances assigned to Suhayl Ala'i (“Suhayl”) her right to purchase the improvements, and on April 16, 1985, this Court *275authorized the administrators' of Lawrence’s estate to sell the improvements to Suhayl. On December 11, 1986, the Lease Agreement with certain amendments was transferred to Suhayl as lessee (“Lease Transfer”). The Lease Transfer amended amended the Lease Agreement to grant Suhayl the option to renew the Lease Agreement for another term of 30 years. The improvement purchase provision was also revised to provide that Suhayl’s successors become the lessees upon his death and that Frances is obligated to purchase the improvements, at fair market value, should either Suhayl’s executor elect to terminate the Lease Agreement or should the Lease Agreement terminate before the lease term expires. The Lease Transfer was recorded with the Territorial Registrar on December 12, 1986.
Suhayl died in 1995. Lilian, his surviving spouse, inherited the leasehold under the Lease Agreement as an asset of the estate pursuant to the Court’s distribution order. On April 25, 1997, the Lease Agreement was amended to formally substitute Lilian as the lessee (“Lease Amendment”). The Lease Amendment has not been recorded with the Territorial Registrar.
Plaintiffs seek to declare the Lease Agreement, Lease Transfer, and Lease Amendment void or voidable because they have not been approved by a majority of the trustees as required by the Land Planning Agreement.
Other facts pertaining to particular issues will be set forth in the discussion below.
DISCUSSION
A. Standing to Sue
Gilian specifically challenges Douglass’s standing to sue, while Lilian challenges the standing of all Plaintiffs to sue. Gilian argues that Douglass transferred his interest in the Olo property to the other beneficiaries as part of a 1982 settlement agreement and, therefore, has no standing to bring the instant action. Lilian argues that Plaintiffs do not have standing because they do not constitute a majority of trustees or beneficiaries.
It is well established that in order to establish standing a party must demonstrate the following three things:
(1) ‘injury in fact,’ by which we mean an invasion of a legally protected interest that is ‘(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical;’ (2) a causal relationship between the injury and the challenged *276conduct, by which we mean that the injury ‘fairly can be traced to the challenged action of the defendant,’ and has not resulted ‘from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, by which we mean that the ‘prospect of obtaining relief from the injury as a result of a favorable ruling’ is not ‘too speculative.’ These elements are the ‘irreducible minimum’ required by the Constitution.
Mulitauaopele v. Togafau, 26 A.S.R.2d 52, 53-54 (Trial Div. 1994) (citing Ne. Fla. Chapter of the Ass’n Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 663-64 (1993)) (internal citations omitted).
In this case, Plaintiffs are seeking declaratory relief, specifically that a lease be declared void or voidable. Under A.S.C.A. § 43.1101, a person is entitled to relief if he is “interested under a deed, will or other written, or under a contract, or . . . desires a declaration of his rights or duties with respect to another, or in respect to, in, over or upon property.” We find that Plaintiffs have standing to seek declaratory relief.
Initially, with respect to Gilian’s challenge of Douglass’s standing, it is important to describe the circumstances surrounding the aforementioned settlement agreement. In June 1982, in order to resolve several underlying litigations, all the trust beneficiaries executed a settlement agreement (“Settlement Agreement”), which among other things, redistributed certain interests in the Kneubuhl Trust. Specifically, Douglass transferred all of his interest in the properties known as “Satala” and “Olo” to John, Benjamin, Margaret, and Alfred in equal parts.
Gilian contends that by relinquishing his rights to Olo in the Settlement Agreement, Douglass has no standing to maintain this lawsuit. In essence, Gilian suggests that the Olo property constitutes a separate subtrust, one in which Douglass has no interest as trustee or beneficiary. Yet, none of the documentary evidence (the Kneubuhl Trust, the Partition Agreement, the Modification Agreement, the Land Planning Agreement, or the Settlement Agreement) leads us to reach this conclusion. Although some of these documents partition the interests in portions of the Kneubuhl Trust, void is any evidence of an intention to create multiple subtrusts. Notably, all of the documents refer to the trust in the singular form. See generally 16 Am. JUR. 2d Trusts § 27 (1992) (noting that “the particular words of the instrument creating such trust or trusts must be examined to determine the creator’s purpose”). Absent any evidence that Adeline intended to create multiple trusts or subtrusts, we find that the Kneubuhl Trust constitutes one trust. As a beneficiary to the Kneubuhl Trust, we find that Douglass has standing to maintain *277this action.
Lilian has challenged the standing of all of the Plaintiffs to bring the instant action. Lilian argues that there must be a majority of trustees or beneficiaries in order to bring an action regarding the trust. We disagree. As beneficiaries to the Kneubuhl Trust, Margaret, Douglass, and Alfred each have standing to protect their rights and interests.3 See, e.g., Mountain Top Condo. Ass’n v. Stabbert, 72 F.3d 361, 367 (3d Cir. 1995) (noting that “beneficiaries have a property interest in the trust res that is enforceable either in law or in equity”); RESTATEMENT (SECOND) OF Trusts §§ 198-99 (1959).
Moreover, should Lilian’s argument be based on the Land Planning Agreement, it still is untenable. The Land Planning Agreement purports to impose restrictions on the development of the Olo land and requires majority agreement for various actions. Notably absent is any requirement that a majority must agree in order to bring a legal action regarding the property. As such, we hold that Plaintiffs have standing to maintain the instant action.
B. Legal Status of the Trustees/Beneficiaries
Underlying this action is the legal status of the Knuebuhl Trust (and its trustees and beneficiaries) in light of the restrictions on the alienation of land to non-Samoans. Plaintiffs conceded that none of the current trastees or beneficiaries has 50% Samoan blood. A.S.C.A. § 37.0204(b) mandates:
It is prohibited to alienate any lands except freehold lands to any person who has less than one-half native blood, and if a person has any normative blood whatever, it is prohibited to alienate any native lands to such person unless he was bom in American Samoa, is a descendant of a Samoan family, lives with Samoans as a Samoan, lived in American Samoa for more than 5 years and has officially declared his intention of malting American Samoa his home for life.
The validity of the restrictions on the alienation of Samoan lands has been affirmed time and time again by this Court. See generally Craddick Dev., Inc. v. Craddick, 2 A.S.R.3d 20 (App. Div. 1998); Craddick v. Territorial Registrar of Am. Samoa, 1 A.S.R.2d 10 (App. Div. 1980); Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 117 (Trial Div. 1995); Haleck v. Lee, 4 A.S.R. 519 (Trial Div. 1964). It is undisputed that the *278Kneubuhl Trust beneficiaries and trustees do not meet this requirement.
However, the Legislature has carved out an exception to the restrictions on land alienation.' Under A.S.C.A. § 37.0205, a Samoan can create a trust for the benefit of a son or daughter, “in view of legal marriage with a nonnative, or for his son or daughter already married to a normative, or for any of the issue of any such marriage.” It was under this exception that this Court previously held the Kneubuhl Trust valid. Kneubuhl v. Kneubuhl, LT No. 12-80, slip op. at 5-6, 9 (Land & Titles Div. Mar. 24, 1982) (Order Granting Partial Summary Judgment). We agree with Chief Justice Miyamoto’s holding that that the Kneubuhl Trust meets the statutory exception to A.S.C.A. § 37.0204(b) and find that the Kneubuhl Trust beneficiaries are allowed to hold equitable interest in the trust land as beneficiaries.
In the previous Kneubuhl case, the Court instructed the parties that they could not be trustees to the Kneubuhl Trust. Id. at 3 (“Although the modification agreements attempt to transfer Opelle’s interest as trustee to the settlor’s children and to appoint them as successor trustees, this he could not do.”). This is because the trustees hold the legal title to the trust property while the beneficiaries hold the equitable interest. See In re Estate of Flake, 71 P.3d 589, 594 (Utah 2003); Coon v. City and County of Hawaii, 47 P.3d 348, 375 (Haw. 2002); see generally Restatement (Second) of Trusts § 99 cmt. b (1959). It is undisputed that the Kneubuhl Trust beneficiaries are not capable of holding legal title to land in American Samoa. However, contrary to this Court’s finding in 1982 and contrary to American Samoa law, the Kneubuhl beneficiaries have continued to hold themselves out as “trustees” of the Kneubuhl Trust. This they cannot do.
However, the Kneubuhl Trust does not fail for want of a trustee.4 A trust does not fail merely because the trastee is “incapable of taking title to the property.” See generally RESTATEMENT (SECOND) OF TRUSTS § 32(2) cmt. j (1959); 76 AM. JUR. 2D Trusts § 250 (“A trust will never fail for want of a trustee.”). In order to comply with the law, William must still appoint a new trustee that is agreed upon by a majority of the *279beneficiaries, and that trastee must be capable of bolding legal title to land under the laws of American Samoa.
C. Validity of the Lease Agreement and Subsequent Modifications
Douglass, Margaret and Alfred seek a declaration that the Lease Agreement, Lease Transfer, and Lease Amendment are void or voidable because they have not been approved by a majority of the trustees as purportedly required by the Land Planning Agreement.
Lilian asserts that Plaintiffs are barred from maintaining this action on the grounds of waiver, estoppel, and laches. While there appears to be some merit to each of these affirmative defenses, Plaintiffs have clearly waived their right to challenge the Lease Agreement, Lease Transfer, and Lease Amendment.
Here, Plaintiffs acquiesced when Frances leased the land to Pricillia and Lawrence and later when she transferred the lease to Suhayl and then Lilian. “Acquiescence consists of assent by words or conduct on which the other party relies.” Hazard Coal Corp. v. Ky. W. Va. Gas Co., 311 F.3d 733, 740 (6th Cir. 2002).
When a party with full knowledge, or at least with sufficient notice or means of knowledge, of his rights, and of all the material facts, freely does what amounts to a recognition of the transaction as existing, or acts in a manner inconsistent with its repudiation, or lies by for a considerable time and knowingly permits the other party to deal with the subject matter under the belief that the transaction has been recognized or freely abstains for a considerable length of time from impeaching it, so that the other party is thereby reasonably induced to suppose that it is recognized, there is acquiescence and the transaction, although originally impeachable, becomes unimpeachable in equity....
Id. at 740-41 (quoting J. Pomeroy, 2 EQUITY JURISPRUDENCE § 965 (5th ed. 1941)).
Plaintiffs do not deny that they have known about these agreements for many years. The Lease Agreement was entered in 1979, the Lease Transfer in 1986, and the Lease Amendment in 1997. Two of these agreements were registered shortly after their execution with the Territorial Registrar. Moreover, paragraph thirteen of the Settlement Agreement implicitly validates the Lease Agreement by explicitly allowing Lawrence to remain at Olo under the same conditions. Plaintiffs, along with Frances, Benjamin and John, were all parties to the Settlement Agreement, and the Settlement Agreement was approved by *280this Court. See In re Estate of Lena Pritchard Kneubuhl, PR No. 08-80 (Probate Div. July 16, 1982) (Stipulation and Order). This demonstrates acquiescence in, and possibly ratification, of the Lease Agreement.5 Certainly, Frances and Lilian have relied on Plaintiffs’ acquiescence in assuming the Lease Agreement, Lease Transfer, and Lease Amendment were valid instruments. Plaintiffs cannot complain now. Accordingly, we hold that Plaintiffs have waived their right to challenge the validity of the Lease Agreement, Lease Transfer and Lease Amendment.
ORDER
1. William shall appoint a successor trustee to the Kneubuhl Trust who is capable of holding legal title to land under the laws of American Samoa and is acceptable to a majority of the beneficiaries. If William is unavailable or unwilling to perform this duty, a majority of the beneficiaries shall appoint a qualified successor trustee.
2. Plaintiffs have waived their right to challenge the validity of the Lease Agreement, Lease Transfer, and Lease Amendment. As between the parties to this action, including Frances, the Lease Agreement, Lease Transfer, and Lease Amendment remain in full force and effect.
3. There being on statutory or contractual basis, request for attorney’s fees is denied. However, she is entitled to recover her other costs of suit from Plaintiffs.
4. Lilian’s cross-claims are rendered moot.
It is so ordered.
According to the August 15, 1960 Conveyance in Trust, the Kneubuhl Trust includes parcels of land known as: Taupou, Olo No. 3, Tagavaa, Lesea, Olo No. 1, Puapua, Olo No. 2, Aso Toelau, Poata, Taitai, Maloloa, and Satala.
We take judicial notice of the Modification Agreement and any other documents, which were submitted to this Court in Kneubuhl v. Kneubuhl, LT No. 12-80.
This seems particularly necessary in this case because the Plaintiffs and the other Kneubuhl Trust beneficiaries do not have a valid trustee to protect or assert their rights.
Plaintiffs pointed out during closing argument that in Craddick Development, Inc., 28 A.S.R.2d at 126, we held that two trusts were void ab initio for violating the statutory restrictions on land alienation. In that case, the trustee was a Samoan capable of holding legal title. However, the beneficiaries were nonnatives who did not meet any statutory exception to the alienation restrictions. Thus, unlike the instant case in which the trust does not fail for lack of a valid trustee, the Craddick trust was void ab initio because there was never a valid trust beneficiary. See generally RESTATEMENT (SECOND) OF TRUSTS § 66 (1959) (“A trust cannot be created unless there is a proper beneficiary.”).
Plaintiffs insist that the minutes from a December 15, 1983 meeting demonstrate their disapproval of the Lease Transfer. However, these minutes are from a meeting that took place three years before Suhayl and Frances executed the Lease Transfer, and there is no evidence that Plaintiffs’ concerns were ever expressed to Suhayl or Lilian, or that Frances ever actually received a copy of these minutes. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486816/ | *282OPINION AND ORDER
This action came regularly for trial on September 11, 2003. Counsel for Faatammaali'i Pritchard and Estate of Fuiavialiili William Pritchard (together “William” or “William’s Estate”) was present. Some successors of Frank Pritchard, Jr. (“Frank, Jr.” or “Frank, Jr.’s Successors”) and Frank W. Pritchard, Sr. (“Frank, Sr.” or “Frank, Sr.’s Successors”) were present. However, though they were afforded ample opportunity to retain another attorney during several months immediately preceding the trial, none of Frank, Jr.’s and Frank, Sr.’s Successors did so; and none of them participated in the trial. In this context, the principal consequence of a judgment in these actions will be to provide guidance regarding the lands at issue for the administration and distribution of the estates of William and Frank, Jr., and perhaps Frank, Sr. as well.
Ultimate Issues
In 1995, William’s Estate commenced LT No. 27-95 against Frank, Jr. and Frank, Sr.’s Successors to quiet title in the name of William’s Estate and Frank, Jr. to a portion of land known as Fuamete, consisting of approximately of approximately 4.614 acres (“4.614 acre parcel”), in Leone, American Samoa, and to quiet title in name of William’s Estate another portion of Fuamete, consisting of approximately 12.51 acres (“12.51 acre parcel”).
A short time later in the same year, Frank, Jr. countered with LT No. 36-95 against William’s Estate to nullify the registration of the 12.51 acre parcel, quiet title to this parcel in the name of Frank, Jr. and his siblings, and to enjoin William’s Estate and heirs from alienating this parcel.
On December 4, 1995, we denied Frank, Jr.’s application for a preliminary injunction in LT No. 36-95 and consolidated the two actions. Frank, Jr. died while the actions were pending, and all of his testate and intestate successors were added as parties in both actions. On August 19, 2003, we denied the motion of William’s Estate for summary judgment to adjudicate the title to the 4.614 acre parcel as William’s and Frank, Jr.’s individually-owned land, jointly held by them as tenants in common, and to approve a proposed partition of this parcel between William’s Estate and Frank, Jr.’s Successors as the immediate consequence. The denial was principally based on factual issues pertaining to the appropriateness of the proposed distribution of this parcel. The actions then proceeded to trial.
The ultimate issues, then, in order to proceed in a systematic manner with the inheritance of the two parcels, are: (1) the validity of the two *283registrations, (2) ownership of the two parcels, and (3) the propriety of the proposed partition of the 4.614 acre parcel.
Discussion
1. The 4.614 Acre Parcel
William and Frank, Jr. were brothers and are deceased. William died intestate and, apparently, Frank, Jr. likewise. Frank, Sr. was their father and also, apparently, died intestate. On July 2, 1964, the Registrar of Titles registered the 4.614 acre parcel as William’s and Frank, Jr.’s individually-owned land. The Territorial Registrar issued the Certificate of Registration on September 11, 1987, with an effective retroactive date of July 2, 1964. A valid registered land title is conclusive evidence to the world that the registered titleholder owns the land. Lualemana v. Atualevao, 16 A.S.R.2d 34, 40 (Land & Titles Div. 1990). The Territorial Registrar’s file in evidence on this registration shows that the requirements of the registration process in effect in 1964 were strictly followed. The registration of the 4.614 acre parcel was and is valid and, therefore, we find that preceding their respective deaths, William and Frank, Jr. owned this parcel as individually-owned land, jointly held as tenants in common.
In order to facilitate inheritance of this parcel, William’s Estate has had the original survey retraced and divided two equal lots, Lot 1 at the West end and Lot 2 at the East end, as shown in Exhibits No. 3 and No. 4 in evidence. William’s Estate proposes that Lot 1 be partitioned for inheritance by Frank Jr.’s successors and that Lot 2 be partitioned and included in William’s Estate for inheritance by his heirs. The boundary between the two equally sized lots is positioned to maintain improvements that belonged to Frank, Jr. and his family members on Lot 1 and maintain improvements that belonged to William and his family on Lot 2. We find that the proposed partition of the 4.614 acre parcel into Lot 1 and Lot 2 provides for an equitable distribution by inheritance of the parcel.
Accordingly, Lot 2 is properly an asset of William’s Estate for purposes of ultimate distribution to his heirs, and Lot 1 is properly an asset of Frank, Jr.’s estate for ultimate distribution to Frank, Jr.’s Successors.
2. The 12.51 Acre Parcel
The Territorial Registrar registered the 12.51 acre parcel as William’s individually owned land on May 2, 1990. A land title registration is presumptively valid. Ifopo v. Siatu'u, 12 A.S.R.2d 24, 27-28 (Land & Titles Div. 1989). However, unlike the registration of the 4.614 acre parcel, the record of this registration in the Territorial Registrar’s file in *284evidence raises questions about the registration process.
First, the Surveyor and Pulenu'u Certificate, dated October 28, 1980, was purportedly signed by “Atofau” as the pulenu'u of Leone. While the records of the Secretary of Samoan Affairs in evidence show that Punaloa Atofau was the pulenu'u in 1990, the records also show that Toilolo Iereneo held that position when the survey was actually conducted in 1980. Second, the affidavit of the Territorial Registrar’s notice posting does not clearly indicate that the notice was posted at two public places in Leone, as required by law in 1990.
Accordingly, we hold that the registration of the 12.51 acre parcel did not and does not provide conclusive notice of ownership to the world. Nonetheless, the apparent deficiencies in the registration process do not of themselves override actual ownership. Te'o v. Sotoa, 5 A.S.R.2d 90, 97-98 (Trial Div. 1987). The evidence presented shows that William owned the land as individually-owned land. Neither Frank, Jr.’s nor Frank Sr.’s Successors offered any contradictory evidence. Therefore, we find that William owned the 12.51 acre parcel as individually-owned land, and that this parcel is also properly included in William’s Estate for purposes of further administration and prospective distribution to his heirs.
There are indications in other actions pending before this Court that persons outside of the Pritchard family have claims to ownership of this parcel or to portions of it. Therefore, this determination is without prejudice to the determination of any ownership rights to this parcel by persons outside of the Pritchard family.
Order
1. The title registration of the 4.614 acre parcel as William’s and Frank, Jr.’s individually-owned land, jointly held by them as tenants in common, is valid and conclusive evidence to the world of their joint ownership. This parcel is partitioned, as shown in Exhibits No. 3 and No. 4 in evidence, into Lot 1 now owned by Frank, Jr.’s estate to be inherited apparently by Frank, Jr.’s Successors, and Lot 2 now owned by William’s Estate to be inherited by his heirs.
2. The title registration of the 12.51 acre parcel as William’s individually-owned land is not effective as notice to the world of his ownership. However, as between the parties to this action, William owned this parcel as his individually-owned land, and the parcel is now owned by William’s Estate to be inherited by his heirs. This holding is, however, without prejudice to persons outside of the Pritchard family to contest the ownership of this parcel.
*285It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486817/ | OPINION AND ORDER
The Court intentionally delayed issuing a formal decision in this action in light of continuing representations of counsel for Plaintiff Sainila P. Fanene (“Fanene”) at the close of and following trial that settlement *286discussions were ongoing and would likely bear fruit. As of this time, however, it is apparent that settlement has not been and will not be reached.
Discussion
Fanene filed this action to evict Defendant Aisa Iakopo Vaona (“Vaona”) from Fanene’s house on land called “Lelulu” in Nu'uuli, American Samoa. The eviction remedy was premised on Vaona’s alleged failure to pay the balance of the agreed purchase price for sale of the house to Vaona. Fanene also sought recovery of the rental value, alleged to be $350.00 per month based on the rent paid by a tenant prior to the sale at issue, for the period of Vaona’s occupancy of the house.
Vaona denied Fanene’s allegations and counterclaimed for refund of the purchase price, reimbursement of her expenditures for repairs and remodeling, damages for emotional distress, and punitive damages.
Findings of Fact
We find the following as the ultimate facts of this dispute. In May of 1997, Vaona was residing in the U.S. mainland. She wanted to purchase a house and underlying land in American Samoa in contemplation of permanently returning here in the near future. She learned of Fanene’s advertisement in the May 22, 1997 Samoa News of the house for sale. Vaona talked to Fanene by telephone and agreed with his asking price of $15,000, with an immediate down payment of $5,000 to hold the property, subject to her inspection of its condition. On May 27, 1997, after a relative confirmed the acceptable condition of the house, Vaona paid Fanene $5,000 by cashier’s check sent by certified mail.
Vaona returned to American Samoa and, on or about September 1, 1997, she paid Fanene the $10,000 balance with another cashier’s check. She believed that she had then paid for the house and underlying land in full and asked for the documents needed to transfer ownership to her. She thought that there may be a problem when Fanene told her that title registration had not been completed. Nonetheless, Vaona moved into the house and, based on the receipts in evidence, she spent $707.68 on repairing and remodeling the house.
Vaona continued to ask Fanene for the necessary title transfer documents, but he kept putting off delivery of these documents. Fanene then demanded that Vaona pay an additional $10,000, claiming that they had agreed to a sales price of $25,000. Vaona refused to pay the additional amount. Fanene accompanied some of his repeated demands for the additional $10,000 with such inappropriate statements as threatening to demolish the house by burning or other means. Other *287members of Fanene’s family made similar destruction threats if the additional $10,000 was not paid. Vaona feared that the threats would be carried out, but she continued to live in the house.
Finally, about three years after Vaona took possession of the house, Fanene advised Vaona that she was only buying the house, as the underlying land was not for sale. This was the last straw for her. Exasperated, Vaona demanded that Fanene return the $15,000 she paid to him. Fanene refused and, when Vaona remained in possession, he commenced this eviction action.
The land is the Fanene family’s communal land. Fanene could neither sell the land and house, nor only the house, there being no agreement to separate the existence of house from the land. He produced a general power of attorney, signed by the Fanene family’s sa'o on August 15, 1997, which purported to give him authority to do all things necessary to carry out the Fanene family’s communal affairs, specifically including the sa'o’s obligations. Even if this power of attorney is construed to potentially give Fanene authority to enter transactions concerning the Fanene family’s communal land or houses on the land, there is no evidence that Fanene ever took any of the necessary legal steps either to separate the house from the land or to alienate the land by going through the required legal process of first obtaining the Land Commission’s review and recommendation and the Governor’s approval.
Conclusions
Fanene misrepresented that the house and surrounding land were for sale and that he had the legal ability to sell them. In short, he clearly defrauded Vaona of the $15,000 she paid him for the house and, she thought, the underlying land. Because of Fanene’s fraudulent conduct, Vaona is entitled to have Fanene refund the $15,000 she paid to him. Fanene’s intentional tort justifies an award of punitive damages. We assess punitive damages at $5,000.
Vaona is also entitled to reimbursement of her documented expenditures of $707.68 for repairing and remodeling the house.
However, based on Vaona’s continuing occupancy of the house, even at the time of the trial, we conclude that the threats made by Fanene and other Fanene family member to Vaona did not cause her any substantial emotional distress. We deny her recovery of any damages on this claim. However, further harassment of this or. a similar nature remains probable, and Vaona’s award of damages, set forth above, will inadequately remedy this potential. Therefore, Fanene and his family members should be permanently enjoined from engaging in such *288conduct.
Our findings and conclusions preclude any recovery of rent by Fanene during Vaona’s occupancy of the house. However, if Vaona is still in possession, she may remain in the house for the time being but must vacate the house as soon as Fanene pays the judgment in fall. Alternatively, if Fanene produces and Vaona accepts a valid deed conveying the house and underlying land to her, she may indefinitely remain in possession as the owner of the house and land.
Order
1. Fanene recovers nothing against Vaona on his complaint.
2. Vaona shall recover from Fanene $15,000 to refund the funds fraudulently extracted from her, plus $5,000 as punitive damages, and $707.68 as reimbursement of her documented expenditures on repairing and remodeling, for a total of $20,707.68. Payment shall be made in full to the Clerk of the Court within 120 days after entry of this judgment.
If full payment is not made within 120 days, Fanene shall pay, in addition, post-judgment interest at the rate of 6% per annum on the unpaid balance of judgment, accruing from the judgment entry the judgment is paid in full.
3. If Vaona still occupies the house, she shall vacate the house as soon as Fanene pays the judgment in full. Alternatively, if Fanene produces and Vaona accepts a valid deed conveying the house and underlying land to her, she may indefinitely remain in possession as the owner of the house and land.
4. Fanene, his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them, including Fanene’s family members, are permanently enjoined from harassing, annoying, molesting, threatening in any manner, or otherwise disturbing the peace of Vaona.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486596/ | ORDER DENYING APPELLEE’S MOTION TO DISMISS APPEAL
*23Procedural History
On May 25, 1999, Appellee Uiagalelei Iona filed a Motion to Dismiss this appeal, on the ground that Appellant Ulufaleilupe Safue failed to file his opening brief within forty (40) days of the filing of the record as required by A.C.R. 31(a). Appellant filed his Opposition to Motion to Dismiss on June 21, 1999, explaining that the local post office had misplaced the brief and that, upon learning of the delay, he took immediate action to file and serve the brief as quickly as possible. The result of these circumstances was that Appellant’s brief was filed forty-eight (48) days after the filing of the record, or eight days late. Oral argument was heard on the motion on June 24, 1999, with counsel present for both parties.
Discussion
Under the law of American Samoa, a violation of the timing requirements of A.C.R. 31(a) does not result in mandatory dismissal of the appeal; rather, dismissal is subject to the discretion of the Appellate Division, which may consider such factors as the circumstances related to the untimely filing, as well as any prejudice which may result to Appellees therefrom. Alaimalo v. Sivia, 17 A.S.R.2d 25 (Appellate Div. 1990); Opapo v. Puailoa, 17 A.S.R.2d 30 (Appellate Div. 1990); Alaimalo v. Sivia, 16 A.S.R.2d 117 (Appellate Div. 1990).
At oral argument, counsel for Appellant — an officer of the court— averred that the delay in filing was not the result of his own negligence or that of his client. Although we agree that counsel should always consider the possibility of delays when mailing to a remote destination such ,as American Samoa, in this case the package was actually misplaced, not simply delayed in the normal course of events. Under these circumstances, it would seem unduly harsh to penalize a litigant with outright dismissal of his claims.
Moreover, we note that Appellee had ample time in which to file his response brief, even after Appellant’s brief was untimely filed. Because he chose not to take this simple step, which would have allowed this panel to consider the merits of the appeal in the event his motion to dismiss was denied, we conclude that his client will not be significantly prejudiced by holding this case over to the next appellate session for a full adjudication on the merits.
Order
For the foregoing reasons, Appellee’s motion to dismiss the appeal is hereby denied. Appellee’s response brief shall be due thirty (30) days from the date of this order.
*24It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486597/ | OPINION
Per Curiam:
The only issue on appeal is whether the trial court erred in refusing to award prejudgment interest to the prevailing party after prolonged and complex litigation over disputed accounts. We affirm the trial court’s judgment.
In 1992, Defendant-Appellant Ho Pyo Hong (d/b/a Koreansa Shipping Agency) (“Hong”) was engaged in several businesses (see Hong v. Samoa Sharkfin Trading Co. v. Hong, 3 A.S.R.3d 37 (App. Div. 1999) including the business of provisioning fishing vessels. Korean Deep Sea Fishing Association (“KDSFA”), an association of fisherman with independently-owned fishing vessels, was one of Hong’s major customers. This action arose out of KDSFA’s allegation that it had extended cash advances to Hong, and that the advances had never been repaid; Hong alleged, in response, that he had supplied a substantial amount of inventory to KDSFA on credit, and was owed in excess of $1 million.
After a lengthy trial and evaluation of virtually incomprehensible business records, the trial division mled in Hong’s favor and eventually entered judgment in the amount of $1,339,344.06. Although Hong requested interest on the debt (6% for the period May 1992, the time of the transactions, to January 1997, the time of the judgment), the court denied his request for prejudgment interest. Hong appealed and KDSFA failed to file a brief.
A trial court’s factual determinations are reviewed for clear error. The reviewing court affords particular weight to the trial judge’s assessment of conflicting and ambiguous facts, especially where the findings are based in part on the trial court’s evaluation of conflicting evidence and live testimony. Questions of law or mixed questions of law and fact are reviewed de novo. Roman Catholic Diocese of Samoa Page Page v. Avegalio, 20 A.S.R. 2d 70, 73 (App. Div. 1992) (citing a variety of Ninth Circuit precedent in accord).
Samoan law provides that interest, at a rate of six percent, “shall be presumed on all overdue debts.”1 The statute raises two questions in this *26case: (1) whether the presumption is conclusive or rebuttable; and (2) when the debt in this case became “overdue.” The trial division, after finding as a fact that much of the delay and difficulty in liquidating, the amount of the debt was of Hong’s own confection, denied prejudgment interest on the debt. In so doing, the court noted that the accounting records and other evidence presented by Hong at trial constituted a “time consuming haystack” for the court, and implied that judgment would have been rendered sooner if Hong had presented the court with a more straightforward accounting of his business dealings. Specifically, the court said that “much about what he brought on himself was through his own doing . . .” and that Hong “did not exactly have clean hands in the whole thing . . . .” [Trans, at 9] Essentially, the court relied upon equitable principles to overcome the statutory presumption in favor of prejudgment interest.
Hong has not directed our attention to any case law on point, Samoan or otherwise, and KDSFA declined to submit a brief in this matter. The trial court was guided by the fact that several years had been consumed in litigation, much of which would not have been necessary if Hong had kept regular books and records.
The court, pursuant to the statute, could have awarded interest on the debt owed to Hong, but on the facts of this case clearly was not compelled to do so. The amount of the debt was uncertain, and the exact time at which it could be said to have been “overdue” was uncertain prior to the judgment of the court. The statutory presumption was rebuttable, and the court found ample facts to rebut it.
Many U.S. jurisdictions have drawn a distinction between liquidated and unliquidated damages, and adopted a rule prohibiting the award of prejudgment interest where the amount of the debt is unknown, and not readily determinable, prior to the entry of judgment. See Traditional Rule Against Allowance of Interest, 22 Am. Jur. 2d Damages § 654 (1988); see, e.g., Coxv. McLaughlin, 18 P. 100, 103 (Cal. 1888) (“It may be stated as a general principal that interest is not allowed on unliquidated damages.”). The underlying rationale, in these jurisdictions, is that a debtor should not be expected to pay interest on a debt while the amount and nature of the debt are unknown. See, e.g., Continental Rubber Works v. Bernson, 267 P. 553, 554 (Cal. Ct. App. 1928); see also Comment, Prejudgment Interest: Survey and Suggestion, 77 Nw. U. L. *27Rev. 192, 204-213 (April 1982) (observing that although- many U.S. jurisdictions have retained the traditional approach to prejudgment interest, the majority have rejected the traditional approach in favor of vesting discretion in judge or jury).
This case is an appropriate one in which to treat the presumption favoring interest as overcome by the facts. The amount of the debt was uncertain prior to the entry of judgment, and the creditor seeking interest was largely responsible for the uncertainty and the delay in the resolution of the case.
AFFIRMED.
The Samoan anti-usury statute provides, in pertinent part:
Except as provided in this title, no person may charge more than 15 percent a year as interest on a debt or obligation, and no *26agreement to pay a rate of interest higher than 6 percent a year shall be enforceable unless the same is in writing and is signed by the party to be charged. The rate of interest when there is no written agreement with respect thereto shall be 6 percent a year, and interest shall be presumed on overdue debts.
A.S.C.A. §28.1501(a) (1992). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486599/ | OPINION
Per Curiam:
Andry Sagapolutele appeals from the trial court’s denial of his motion for work release during a 90-day mandatory sentence after he pled guilty to felony driving while his license was suspended. Sagapolutele’s license was suspended for six months under § 22.0211 because he had been convicted as a first time offender of driving under the influence. His second offense brought him within the penalty provision § 22.0223.
Sagapolutele contends that the trial court erred when it denied his motion on the grounds that it had no discretion under § 22.0223 to authorize work release in lieu of confinement in jail. He asserts that § 22.0223, which requires that he serve at least 90 days “in custody,” is broad enough to include work release as part of his “custody.” See Black’s Law Dictionary (defining custody as “the care and control of a thing or person” and confinement as “detention in a penal institution”).
Because the government did not submit a brief, and Sagapolutele did not cite Samoan law discussing the legal definition of “custody” in connection with § 22.0223, counsel were questioned during oral argument on comparative statutes and legislative intent. No Samoan case law that has been called to our attention defines in a criminal context the legal term “custody.” Common law courts traditionally have treated penalty language as conferring upon sentencing courts reasonable discretion in the fashioning of a suitable combination of confinement, probation, work release, and similar alternatives to straight confinement.
Until the Fono expresses its intent to depart from the traditional common law discretion reposed in the law courts, we hold that the trial judge does have reasonable discretion in choosing appropriate *36sentencing alternatives under § 22.0223. In the case at bar, the trial court had discretion to grant work release, if it saw fit to do so, but was under no compulsion to do so.
We vacate the sentence imposed, and remand the case to the trial court for the imposition of any statutory sentence the court may deem appropriate in the exercise of judicial discretion.
VACATED AND REMANDED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486601/ | OPINION
Per Curiam:
Appellant Ricky Pua'a (“Pua'a”) appeals from his conviction on one count of possession of methamphetamine in violation of A.S.C.A. § 13.1022(a). We affirm the conviction.
Factual and Procedural Background
Pua'a flew from Honolulu to Pago Pago on a first class ticket purchased with cash. On arrival, he was met by codefendant Poe Faumina who had previously obtained clearance to meet Pua'a inside customs. A customs officer discovered several hundred grams of methamphetamine concealed inside a black suitcase Pua'a had brought from Hawaii. The customs official testified he observed Pua'a repeatedly switching customs lines.
During the initial search of the suitcase, Poe claimed the packages containing the methamphetamine belonged to him. The suitcase, however, bore a tag with Pua'a’s name. In addition, most of the clothes in the suitcase were later found to fit Pua'a but his fingerprints were not found on any of the items in the suitcase.
*43Pua'a provided a voluntary statement to customs officials. .He reported that Pluto Faumuina, Poe’s cousin, had asked him at the Honolulu airport to carry the suitcase to American Samoa. If Pua'a agreed, Pluto would give him $500 for his trouble. When searched at Pago Pago customs, however, Pua'a had only $5.29 on his person. Pua'a claimed not to know the suitcase contained illegal drags but did acknowledge that he had heard Pluto was a big-time drag dealer. Pua'a also told officials that Pluto had told him that Poe would meet him at the baggage claim and take charge of the suitcase. Pluto was on the flight from Hawaii with Pua'a, but was not detained by authorities.
At trial, Poe claimed Pluto had told him only that one of his friends would be carrying a suitcase for him. He also claimed to have no knowledge the suitcase would contain illegal substances. Pua'á chose not to testify at trial, but his counsel adopted the story Pua'a had provided to customs officials.
A. Severance
Pua'a first argues that the trial court erred in rejecting his motion to sever his trial from that of co-defendant Poe. The decision to order severance is left within the sound discretion of the trial court and is reviewed for an abuse of discretion. See United States v. Vasquez-Veiasco, 15 F.3d 833, 844 (9th Cir. 1994). “Defendants must meet a heavy burden to show such an abuse, and the trial judge’s decision [to deny severance] will seldom be disturbed.” United States v. Tootick, 952 F.2d 1078, 1080 (9th Cir. 1991). Although Pua'a advances a number of grounds for severance, we conclude the trial court did not abuse its discretion.
1. Mutually Antagonistic Defenses
Pua'a claims severance was necessary because he and Poe presented mutually exclusive defenses. Pua'a relies on Tootick. The court iri Tootick noted, however, that “[mjutually exclusive defenses are said to exist when acquittal of one codefendant would necessarily call for the conviction of the other. Tootick, 952 F.2d at 1081. It is clear this trial did not present such a circumstance. Though both Pua'a and Poe tried to shift responsibility for the suitcase onto the other, their defenses were not1 mutually exclusive. A reasonable jury could have believed the stories of both defendants and laid the blame solely at the feet of Pluto.
The “touchstone” for determining whether severance is necessary in the context of mutually antagonistic defenses is whether “the jury is unable’ to assess the guilt or innocence of each defendant on an individual and independent basis.” Id. at 1082. In this case, because the jury could have' concluded both Poe and Pua'a were innocent, the jury was able to assess1 *44the evidence against each defendant independently.
2. Poe’s Counsel as a Second Prosecutor
Pua'a also argues that severance was necessary because Poe’s counsel assumed the role of a “second prosecutor.” Cf. Tootick, 952 F.2d at 1082. Pua'a has not identified, however, any excerpts from the record in which Poe’s counsel acted as a second prosecutor. Pua'a cites only Poe’s counsel’s reminding the jury that (1) Pua'a, not Poe, was observed suspiciously switching customs lines at the airport; (2) Pua'a picked up the suitcase and had the keys to the suitcase; (3) the suitcase tags named Pua'a; and (4) Poe claimed Pluto had told him days before to pick up a suitcase accompanying Pua'a. Except for the last item, these facts were introduced by the government and were not even in dispute. As to the last item, the government was prohibited by Poe’s right to silence, Am. Samoa. Const. Art. I, § 6, from calling Poe to testify. At a severed trial, however, the government could call Poe to the stand and introduce this evidence itself. Pua'a suffered no prejudice from this testimony being introduced by Poe’s counsel instead of the government. Cf. United States v. Breinig, 70 F.3d 850 (6th Cir. 1995) (requiring severance where co-defendant introduced highly prejudicial evidence which would have been inadmissible against defendant in a severed trial).
In any case, the actions of Poe’s counsel cited by Pua'a are a far cry from the potential abuses that concerned the Tootick court. See Tootick, 952 F.2d at 1082 (“Opening statements can become a forum in which gruesome and outlandish tales are told about the exclusive guilt of the ‘other’ defendant. The presentation of the codefendant’s case becomes a separate forum in which the defendant is accused and tried....”).
3. Statements Redacted Under Bruton
Pua'a provided a voluntary statement to the authorities when the drags were discovered. Among other things, Pua'a stated that Pluto “said that his cousin (Poe) is going to meet me in the baggage claim. He would identify himself by calling my name. When he called my name I just turned around and seen him so that’s when I knew it was him. He took the cart from me and start walking towards the customs. . . .” This statement was redacted from the version of the statement presented to the jury in deference to Poe’s Bruton rights. See Bruton v. United States, 391 U.S. 123 (1968)
Pua'a contends that this redaction undermined his defense and required severance. The redacted statements are not exculpatory as to Pua'a, however. They are instead inculpatory as to Poe, suggesting Poe’s involvement was greater than he claimed. The statements are not *45directly relevant to Pua'a’s knowledge of the contents of the suitcase, the central issue in Pua'a’s defense. Severance was not required simply because the entire statement could not be admitted. See United States v. Lopez, 898 F.2d 1505, 1510-11 (11th Cir. 1990) (severance not required where Bruton redactions not exculpatory but inculpatory).
Nor does the redaction violate the T.C.R.E. 106 “Rule of Completeness.” See Lopez, 898 F.2d at 1511 n.11 (11th Cir. 1990) (rale of completeness “violated only when the [Bruton redaction] . . . effectively distorts the meaning of the statement or excludes information substantially exculpatory of the nontestifying defendant”) (citations and quotation marks omitted). The redaction did not distort the meaning of Pua'a’s statement or threaten to mislead the jury.
B. Sufficiency of the Evidence
Pua'a next claims that the government introduced insufficient evidence to sustain his conviction for “knowingly” possessing contraband.1 Pua'a correctly notes that in reviewing sufficiency of the evidence claims we determine whether “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Pua'a fails to note, however, that it is well within the province of the jury to “draw reasonable inferences from proven facts.” United States v. Boise, 916 F.2d 497, 499 (9th Cir. 1990). Thus, “[c]ircumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction.” United States v. Montgomery, 150 F.3d 983, 1001 (9th Cir.) (citation and quotation marks omitted), cert, denied, 119 S.Ct. 267 and 119 S.Ct. 460 (1998).
The government introduced uncontradicted testimony that Pua'a transported a suitcase containing several hundred grams of methamphetamine to Samoa. Pua'a paid for his first class airline ticket in cash. There was evidence the clothes in the suitcase fit Pua'a. Though Pua'a claimed to have been paid $500 at the Honolulu airport to take a suitcase of unknown contents to Samoa, he had only $5.29 on his person at the time of his arrest in Samoa. From these proven facts, the jury could reasonably infer Pua'a knew he was transporting contraband.2
*46C. Ineffective Representation
Pua'a also contends the his trial counsel was ineffective because he failed to request a Carter “no inference” jury instruction.3 See Carter v. Kentucky, 450 U.S. 288 (1981) (state courts must, upon request, instruct jury that no inference can be drawn from defendant’s refusal to testify). The trial court only instructed the jury that “[t]he defendant is presumed to be innocent and does not have to testify or present any evidence to prove innocence.”
Had Pua'a’s trial counsel requested the “no inference” instruction, the trial court was constitutionally obligated to provide it.4 Under Strickland v. Washington, 466 U.S. 668 (1984), however, we will reverse only if trial counsel’s failure was deficient and prejudicial. To be deficient, the failure to request a “no inference” instruction must be “outside the wide range of. professionally competent assistance.” *47Strickland, 466 U.S. at 690. To satisfy the prejudice prong, Pua'a must demonstrate a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
The government is correct to note that competent defense counsel may specifically choose not to request a “no inference” instruction. The instruction is occasionally perceived as highlighting in the jurors’ minds the defendant’s failure to testify. See, e.g., Lakeside v. Oregon, 435 U.S. 333, 339 (1978).
D. Government Misconduct
There is no doubt government agents behaved quite reprehensibly during the trial. Agents talked to newspaper reporters and discussed their testimony with each other in direct violation of the trial court’s orders. The trial court eventually held Customs Officer Omni and DEA Agent Haleck in contempt for their misconduct. When confronted by their violations, the agents appear to have even initially lied to the court. A third officer, Customs Officer Lautogia, apparently lied under oath on cross-examination regarding the number of times he had met with the prosecution to discuss his testimony. After hearing his testimony, the trial court concluded he “did not tell the truth in this matter.” Pua'a moved for a mistrial on the basis of the misconduct. The trial court denied his motion, and Pua'a now claims this was error.
A trial court should grant a mistrial for prosecutorial misconduct if “it appears more probable than not that the alleged misconduct affected the jury’s verdict.” United States v. Nelson, 137 F.3d. 1094, 1106 (9th Cir. 1998) (citations and quotation marks omitted), cert. denied, 119 S.Ct. 231 and 119 S.Ct. 232. We review a trial court’s denial of a mistrial motion for an abuse of discretion. See United States v. Scholl, 166 F.3d 964, 974 (9th Cir. 1999). We defer, of course, to a trial court’s factual findings unless clearly erroneous. See United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998).
As to Officer Omni and Agent Haleck, the trial court determined that their misconduct, while not to “be lightly taken,” did not “materially or prejudicially compromise or otherwise damage the defendants’ defenses” because “the witnesses did not learn anything about the defenses or [sic] they would not have learned from [the prosecution] in discussing their testimony.” Because Pua'a has not provided evidence that the trial court’s determination is clearly erroneous, we defer to the-trial court’s factual determination that the misconduct did not affect the agents’ testimony.
*48As to Officer Lautogia, his apparent misconduct occurred in. open court. Defense counsel was given- every opportunity to mate hay out of the officer’s misleading answers in cross-examination and closing argument. We are certain that catching government agents prevaricating on the stand provides a significant boost to any defense. Such behavior does not, thus, make a compelling case for a mistrial.
Pua'a requested the jury be instructed that if it “believes that a witness willfully and deliberately testified falsely, then it may disregard all of the witness’ testimony.” The trial court rejected Pua'a’s request and instead instructed the jury that “[i]n considering the testimony of any witness, you may take into account... (5) whether the witness willfully testified falsely in any respect.” Pua'a contends this was error.
We review as a matter of law whether a given jury instruction is an adequate substitute for a defendant’s requested instruction. See United States v. Gomez-Osorio, 957 F.2d 636, 642 (9th Cir. 1992). Though the trial court’s instruction may not have been as strongly worded as Pua'a may have wished, its meaning is identical to Pua'a’s requested instruction: a witness’ untruthfulness as to one issue may be used in evaluating her answers on other issues. There was no error.
E. Cumulative Errors
Finally, Pua'a argues that even though no individual error requires reversal, the cumulative effect of all these alleged errors requires reversal. See United States v. Cruz, 82 F.3d 856, 868 (9th Cir. 1996). Despite' the unfortunate conduct of the government agents, we conclude Pua'a has not presented any trial error of significance; therefore, there is no cumulative error.
Conclusion
The judgment of conviction is AFFIRMED.
A.S.C.A. § 46.3201(c) imposes the scienter requirement of “knowingly” on all crimes of possession.
We note that even in Pua'a’s version of the facts, he accepted $500 from someone he believed to be a drag dealer to transport a suitcase to Samoa. From this alone, it may have been reasonable for the jury to infer his knowledge of the suitcase’s contents. Cf. United States v. Ramirez, 176 F.3d 1179 (9th Cir. 1999) (might be reasonable to infer drug *46smugglers do not entrust large drug shipments to unknowing couriers).
Pua'a additionally raises the frivolous argument that trial counsel was incompetent for his failure to argue that the search of Pua'a’s suitcase was not supported by reasonable suspicion in violation of Am. Samoa Const. Art. I, § 5. Border searches, however, need “only the articulation of some facts which would lead a reasonable and objective customs officer to believe the search to be necessary.” ASG v. Vagavao, 3 A.S.R.3d 72, 75 (Trial Div., 1999). That standard being met, Pua'a’s appeal on this issue is without merit.
The government cites United States v. Castaneda, 94 F.3d 592, 596 (9th Cir. 1996), for the proposition that the instruction provided by the trial court satisfies Carter. We disagree with Castaneda. The plain language of Carter requires a “no inference” instruction upon request. See Carter, 450 U.S. at 300 (“[A] criminal trial judge must give a single ‘no adverse inference’ jury instruction when requested by defendant to do so.”). Carter explicitly held the “presumption of innocence”, instruction was not an adequate substitute. See Carter, 450 U.S. at 304. We conclude the “no obligation to testify” instruction is also not an adequate substitute. See United States v. Brand, 80 F.3d 560, 567 (1st Cir. 1996) (Carter not satisfied by instruction on burden of proof and obligation to testify). See also United States v. Eiland, 741 F.2d 738, 743 (5th Cir. 1984); United States v. Bailie, 99 F.3d 1147, 1996 WL 580350, *5 (9th Cir. 1996) (unpublished disposition) (defense counsel objected to “no inference” instruction because he felt “it may in some cases encourage the jury to draw adverse inferences from a defendant’s silence”); Hunter v. Clark, 934 F.2d 856, 859 (7th Cir. 1991) (noting Indiana Supreme Court holds right to object to “no inference” instruction is necessary to right to silence). On the record before us, we cannot conclude that trial counsel’s failure to request a “no inference” instruction was the result of incompetence rather than tactics. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486602/ | OPINION AND ORDER
Facts and Procedural History
On June 4, 1999, Appellant Island’s Choice, Inc. (“Island’s Choice”) filed a petition for stay of administration action with the court naming as appellees the American Samoa Government (“ASG”) and Lolo M. Moliga, Chief Procurement Officer (“CPO”). In its petition, Island’s Choice seeks the issuance of a stay of the government school lunch program’s milk procurement award for the 1999-2000 school year.
Earlier this year, Island’s Choice had submitted a proposal to ASG for supplying milk for the school lunch program. One other local company also responded to ASG’s request for proposals and invitations to bid. A source evaluation board (“SEV”) reviewed each proposal as per bid and product specifications, including product samples. Based upon the findings of the SEV, the CPO awarded the contract to the other bidder on May 7, 1999. Island’s Choice filed a “notice of dispute” two days later, and on May 14, 1999, the CPO issued a written “final decision” confirming the award.
Island’s Choice’s notice of dispute also included a proposed “Stay Order” for the CPO to execute, and stated that failure to do so would result in the filing of a requested stay in the High Court. Island’s Choice next filed a “notice of appeal” on May 17, 1999, with the Governor’s Office pursuant to A.S.A.C. § 10.0282, which establishes an administrative appeals process for reviewing contested ASG procurement awards. That notice also requested that the Governor issue a stay of the award “to forestall unnecessary action in the High Court.”
On May 21, 1999, the Governor, pursuant to administrative rule, appointed a three-member administrative appellate panel to review the disputed procurement award. The Governor also denied the stay requested by Island’s Choice.
*51On May 25, 1999, Island’s Choice inquired of the administrative appellate panel as to whether there would be an “expedited schedule of hearings and consideration” by the panel, stating that it needed this information to determine whether or not to “move in the High Court for such a Stay.” The next day, the Chairman of the panel responded that Island’s Choice’s request would be considered once the panel convened.
On June 4, 1999, Island’s Choice filed its petition for stay with the appellate division of the High Court, along with a motion for expedited hearing. The motion was denied, and a hearing was held on July 7, 1999, with counsel present. At the hearing, counsel advised the court that the administrative appeals panel was actively reviewing the disputed procurement award, and the court was moved to continue the hearing until July 14, 1999.
On July 13, 1999, Island’s Choice filed a petition for review of administrative order with the court. According to the petition, the administrative appeals panel held hearings on June 30, July 1 and 6, 1999. Island’s Choice asserted that the appeals panel had reached a decision and would recommend to the Governor that the initial award be affirmed. The final decision of the Governor was expected in the near future.
At the second hearing of July 14, 1999, counsel for Island’s Choice urged the court to adopt an expedited briefing schedule for the court to consider the petition for review. As discussed infra, we deny the motion and dismiss the appeal.
Discussion
Island’s Choice argues that the court has jurisdiction to review the final order of the CPO notwithstanding the absence of a final decision by the Governor on the administrative appeal of the CPO’s decision. We disagree.
Our jurisdiction to review final (or effectively dispositive) agency decisions in contested cases is prescribed under A.S.C.A. § 4.1040 et seq. A.S.C.A. § 4.1040 provides an entitlement of judicial review for a “person who has exhausted all administrative remedies within an agency and who is aggrieved by a final decision in a contested case. . . .” Subsection (b) of that statute qualifies the application of subsection (a), and prohibits simultaneous judicial review under § 4.1040 and under any other statute specifically providing adequate means of judicial review. Subsection (c) further qualifies subsection (a) by relieving a person aggrieved by a “preliminary, procedural or intermediate agency action or ruling” from exhausting all administrative remedies prior to filing with the court for judicial review “Only if review of the final agency decision *52would not provide an adequate remedy.”
A.S.C.A. § 4.1041 sets forth how proceedings for judicial review of final, or immediately reviewable interim, agency decisions or rulings may be instituted and how stays of such rulings may be issued. Subparagraph (a) provides that proceedings for review are instituted by filing a petition in the appellate division within 30 days after the decision to be reviewed is issued or, if reconsidération or a rehearing is requestéd, within 30 days after the decision thereon. Subsection (b) reads:
The filing of a petition under this section shall not stay enforcement of the agency’s decision. The agency may grant, or the court may order, a stay on appropriate terms.
(emphasis added).
To properly invoke this court’s limited jurisdiction to review administrative decisions of the executive branch, a party must timely file a petition for judicial review within the 30-day period required by A.S.C.A. § 4.1041(a). The mere filing of that, petition does not automatically stay the administrative decision to be reviewed under the petition. A.S.C.A. § 4.1041(b). Once a petition for review is filed with the court, either the agency may grant, or the court may order, a stay on appropriate terms.
Island’s Choice attempted to invoke this court’s judicial review powers by filing its June 4, 1999, petition for a stay of the CPO’s decision so that Island’s Choice could pursue a final decision from the Governor. The July 13, 1999, petition for review stated that although the Governor had not issued a final decision in this matter, it appeared that he would affirm the CPO’s procurement award.
Under the broad legal themes of separation of powers, sovereign immunity, exhaustion of administrative remedies and judicial restraint, we narrowly hold that neither is Island’s Choice presently entitled to invoke the court’s judicial review powers nor has it demonstrated any basis for this court to immediately review any interim agency decision on the grounds that the remaining administrative remedies are inadequate.
At a minimum, A.S.C.A. §§ 4.1040-41 contemplate a timely-filed petition for review which contains allegations sufficient to facially support an inference: of the petitioner’s entitlement to judicial review by virtue of exhausting all administrative remedies (A.S.C.A. § 4.1040(a)) or of grounds sufficient to support immediate review of an interim agency decision where further pursuit of available administrative remedies by petitioner would not provide an adequate remedy (A.S.C.A. *53§ 4.1040(c)); and that the court was not prohibited from exercising its judicial review powers by operation of a separate, specific law (A.S.C.A. § 4.1040(b)).
Island’s Choice initiated the administrative appeals proceedings immediately prior to filing its petition for stay with this court. The record reflects prompt compliance by the executive branch with the administrative mies applicable to the administrative review of procurement awards. The Governor’s final decision has not been issued.
Island’s Choice has not exhausted its administrative remedies, nor has it demonstrated that any interim agency decision requires immediate judicial review. Indeed, by first initiating the administrative appeals process with the Governor’s Office and then applying to this court for a stay, Island’s Choice has clearly indicated that the disputed procurement award could be adequately remedied by the Governor’s reversal and remand of that award at the conclusion of the administrative review proceedings.
Island’s Choice relies heavily upon our decision in BHP Petroleum South Pac., Inc. v. American Samoa Gov't, 2 A.S.R.3d 1 (App. Div. 1998) as grounds for its position that we should assume jurisdiction over this still-pending administrative matter. That reliance is misplaced. In the BHP case, the petitioner’s filings depionstrated that the initial procurement award was made by the Governor who had himself assumed the statutory powers of the office of the Chief Procurement Officer. The petitioners then attempted to pursue administrative review remedies by filing notice with the Governor, which effectively would have required the Governor to review his own decision made in his capacity as the CPO.
On its face, petitioner’s pleadings in BHP presented the court with an interim agency ruling at clear variance with the statutes creating and establishing a Chief Procurement Officer for ASG, and demonstrating a clear appearance that administrative review under those extraordinary circumstances would not provide an adequate remedy. The critical distinction in the BHP case was the fact that despite petitioner’s best efforts to seek administrative review, the Governor had neglected to even appoint an administrative appeals panel until after petitioners filed their pleadings in the appellate division of the High Court.
In the instant matter, Island’s Choice has been timely afforded its rights to pursue an apparently adequate administrative appeal, which simply remains unfinalized. Under A.S.C.A. § 4.1040, we therefore lack jurisdiction for judicial review at this time and, consequently, also lack the authority to exercise our ancillary powers to issue a stay.
*54Order
For the foregoing reasons, the appeal is hereby dismissed without prejudice.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486603/ | OPINION AND ORDER
Appellant High Chief Tulifua Tini P. Lam Yuen, Senior Matai of the Tulifua Family (“HC Tulifua”),- brought suit in the Land and Titles Division of the High Court on February 26, 1993, against Appellees Talae Tuitele (“Talae”), the Heirs of Uaine Tuitele (“Heirs”), and Tom and Patricia Ho Ching (“Ho Chings”) to set aside a 1989 land registration of individually owned land of the Heirs, to object to a *56proposed lease of a portion of said land to Ho-Chings, and .to claim title to the subject land as the communal land of the Tulifua family. The case proceeded to trial on December 18, 1997 with HC Tulifua and Talae present with counsel throughout the trial.
The trial court issued its Opinion and Order on April 24, 1998, which affirmed the registration of the subject land as the individually-owned land of the Heirs and invalidated the purported lease of a portion of this land to the Ho Chings. A motion by H.C. Tulifua “For Reconsideration and/or New Trial” was heard by the trial court on June 4, 1998. An Order denying that motion by the trjal court was issued on July 13, 1998. This appeal followed.
Factual Background
This controversy concerns the 1989 registration of a previously unregistered parcel of 14 plus acres of land known as “Nonuaimoa” in the village of Taputimu, American Samoa. On June 5, 1971, a survey of this parcel was conducted resulting in a writtefi legal description of the parcel and a drawing reflecting the legal description. Plaintiffs Exhibit #1 ("Plain. Exh."). Both the written description and the surveyor’s drawing list the land claimants as: Nelson Tuitele, Jr.; Alaisea E. Tuitele; Lanitiiti E. Tuitele; Mata'u L. Tuitele; Lefíu M. Tuitele; and Uaine F. Tuitele. The surveyor’s certificate, appearing on the survey drawing, recites the survey was conducted in June of 1971 in accordance with applicable government regulations at the request of one “Uaine T.” Also appearing on the drawing is the Land and Survey Division Manager’s Certificate, dated June 18, 1974, further certifying the survey map conformed with government regulations.
Nearly 18 years after the 1971 land survey, Talae filed a notice for the proposed registration of land with the territorial registrar on May 10, 1989, along with the 1971 survey and a certificate signed by the land surveyor and village mayor to the effect that public oral notice of the land survey had been given in the village of Taputimu at a meeting of the village chiefs on June 5, 1971. Plain. Exh. # 1. Talae’s notice proposed to register the 14.18 acre parcel of the land “Nonuaimoa” as the individually owned land of the “Heirs of Uaine Tuitele”. Plain. Exh. # 1. The notice was posted by a staff member of the registrar’s office and an affidavit to that effect signed and filed by that employee the same day, May 10, 1989. Plain. Exh. # 1.
Some days later, the mayor (“pulenuu”) of the village of Taputimu, came into the registrar’s office carrying the copy of the notice of land registration which had been posted in his village and inquired of the registrar as to the location of the land “Nonuaimoa”. Reporter’s Transcript (“R.T.”) at 45 & 46. This notice was not reposted at any time *57in the village during the balance of the mandatory 60-day posting period. Trial Court’s Opinion and Order (“Trial Ct. Opin. & Ord.”) at 6, n.3.
On May 22, 1989 Public Law 21-1 (“P.L. No. 21-1”) became effective. This land statute, enacted under the strict, successive session, super-majority prescriptions of Article I, Sec. 3 of the Revised Constitution of American Samoa (“R.C.A.S.”) supplemented the statutory notice requirements for registering title to lands and prohibited the registrar from issuing certificates of ownership unless notarized statements were on file verifying that the notice posting requirements had been fulfilled. Tulifua v. Tuitele, 2 A.S.R.3d 205, 209-210 (Trial Div. 1998); A.S.C.A. § 37.0103.
On July 13, 1989, the registrar issued a certificate of registration “as an individually-owned land of heirs of Uaine Tuitele” of a “portion of land ‘Nonuaimoa’ in the village of Leone, containing 14.18 acres more or less.” Plain. Exh. 3 (emphasis added). At some undisclosed date thereafter this certificate was apparently amended to read: “...portion of land ‘Nonuaimoa’ in the village of Taputimu . . .” Plain. Exh. # 1 (emphasis added).
The late Uaine Tuitele was a member of the Tuitele family of the Village of Leone and a member of the Tulifua family of the Village of Taputimu. He occupied the subject land at least as far back as 1929. Tulifua at 210. The senior matai position of the Tulifua family was vacant when the subject land was surveyed in 1971 and when registered in 1989. Id.
Appellant HC Tulifua succeeded to his title on June 23, 1992, Plain. Exh. # 2, and subsequently filed an objection to a proposed “...lease between the Talae family and Mr. and Mrs. Tom Ho Ching concerning portion of land ‘Nomuaimoa’ . . . being posted for a period ending January 4, 1993.” Plain. Exh. # 4. This objection, filed with the Territorial Registrar on December 24, 1992, claimed the subject land was Tulifua communal land and that the land registration by the Talae family was invalid. Id. Subsequently, Appellant H.C. Tulifua filed a complaint against Talae Tuitele and heirs of Uaine Tuitele, as well as the Ho Chings, on February 26, 1993, L.T. No. 10-93.
Discussion
A. Registration of Title to the Land “Nonuaimoa” was Invalid
1. American Samoan Land Ownership System
We first address the issue of the validity of the registration of title to the land “Nonuaimoa” to the Heirs as their individually-owned land. Although we ultimately decide this matter on a narrow issue of law, we *58do so within the broader context of the unique facts and issues of law this case presents or suggests.
American Samoa has a subtle and complex system for developing and preserving public records of land ownership. The Samoan system blends a Torrens registration system, a recording system, and special Samoan provisions to protect communal ownership and the Samoan way of life.
In a Torrens registration system, an owner of land registers the land, and obtains a certificate of registration. . . . The certificates are subject to being set aside only in very limited circumstances. . . . The certificate has the same function as a decree in a quiet title suit, so “meticulous attention to the proper manner for service of process” is “absolutely essential to assure certainty to persons who wish to rely on the conclusiveness of the certificate.”
Foloi, et. al. vs. Tuitasi, 18 A.S.R. 2d 88, 93, 94 (App. Div. 1991) (iquoting 6A R. Powell, The Law of Real Property, 908[3][a], at 83-8 (Rohan ed. 1991)).
2. Trial Court Committed Errors of Law in Validating Registration of the Land
a. Trial Court's Findings
We note that both parties cite Ifopo v. Siatu’u, 12 A.S.R. 2d 24 (App. Div. 1989), as supporting their respective legal positions in this controversy. That case requires a trial court, “absent compelling proof to the contrary” to conclusively presume “the Registrar recorded a title only after complying with his obligations under the law”. Id. at 28. Further, that case appears to limit consideration for judicial relief to those “registrations that are clearly proved to have been procured by fraud, or in which failure to afford the required notice affirmatively appears in the record of the registration itself.” Id. at 28.
The trial court found that the affidavit of posting the statutorily required notice of the proposed land registration was facially defective. Tulifua v. Tuitele, 2 A.S.R.2d 205, 209 (Trial Div. 1998). The affidavit confirmed only that a single notice was posted in the village of Taputimu and that notice was posted at the Administration building at Fagatogo. The affidavit was also signed by the staff member of the registrar’s office on May 10, 1989, even though the affidavit clearly stated that the notice was posted for a period from May 10, 1989 to July 10, 1989. Id.
*59The trial court noted that the credible testimony at trial of the staff member in charge of the posting was to the effect that two, not one, notices were actually posted in the village of Taputimu, although that same staff member testified that the notice tom down by the mayor of Taputimu and taken to the registrar was not replaced during the May 10 to July 10, 1989 posting period. Id. at 209, n.3.
It is an undisputed fact that in this land registration the registrar had actual, personal knowledge that at least one of two land registration notices statutorily required to be posted in the village of Taputimu for 60 days prior to issuing the certificate of land registration had been removed by the mayor of that village. Notwithstanding this fact the trial court ruled that because “the Territorial Registrar is obligated to register a land title only when all of the statutory requirements are met, the court should not assume that the Registrar did not carry out this responsibility.” Id. at 209.
b. Trial Court's Errors of Law
We disagree. The trial court buttressed its decision not to disturb this finalized land registration upon its analysis of the statutory notice requirements effective on the date of May 10, 1989, when Talae filed his notice of land registration. Id. at 6-7. Briefly summarized, the trial court held that P.L. No. 21-1, containing specific amendments to the land registration notice procedures, did not apply to Talae’s land registration because Talae had filed 12 days before the amended notice procedures took legal effect.
m. Effect of P.L. No. 21-1
P.L. No. 21-1 left unchanged the pre-existing statutory requirements that notice of a land registration be posted for 60 days at the courthouse in Fagatogo and in two locations in that village containing or nearest to the land offered for registration. The amendments, however, specifically required strict verification of such 60 day postings to be filed with the Registrar, respectively, by the Clerk of Court and the mayor of the village in which the notices were posted.
In addition, the new law required notice of the proposed land registration “be published in a local newspaper at least once each 30 days during the 60-day notice period.” A.S.C.A. § 37.0103(a). P.L. No. 21-1 contained one further, and significant, requirement in a new subsection:
The territorial registrar shall not register any land until the applicant has provided notarized statements from the pulenuu,” (i.e. village mayor) “newspaper, and clerk of court, each of which states that the required notice has been given.
*60A.S.C.A. § 37.0103(c) (emphasis added).
Although the trial court held that P.L. No. 21-1 had no retroactive effect with respect to Talae’s filing, we remain unpersuaded that general rales of statutory construction must strictly apply to land laws enacted by the Legislature of American Samoa under Art I, Sec. 3 R.C.A.S. Recognizing the unique nature of such statutes to preserve and protect the Samoan land tenure system and the intertwined Samoan way of life, we are inclined to presume the Legislature intended the broadest possible application of such statutes at their earliest effective date.
P.L. No. 21-1 amended the procedures for the public notice requirements of the land registration statute. It made three changes: (1) it required independent verification of the pre-existing village and courthouse posting requirements; (2) it required all notices of land registrations to receive verified publication in a local newspaper once each 30 days of the 60-day posting period; and (3) it compelled strict compliance with these procedures by prohibiting the registrar from registering land until such notice verifications were filed with the registrar.
Facially, these procedural amendments appear to have presented no substantial compliance problem for Talae’s 12 day old proposal to register individually-owned land. Nor would any substantial rights of Talae’s underlying claim of the Heirs’ ownership of the land appear to have been diminished by applying the new procedures.
(2). Cases Cited by the Trial Court are Not Supportive of its Holding
The trial court cited 2 cases supporting its holding to deny application of P.L. No. 21-1 to Talae’s pending land certification filing. In the Ambrosino case, the issue facing the Court was whether certain 1983 amendments to the Illinois Securities Act adding several new exemptions from registration requirements applied to the 1981 securities transactions being litigated. The Court held that the:
[The] general rale is that statutes and amendments are presumed to operate prospectively absent express statutory language to the contrary.
The Court noted however that:
[A]n exception to this rale exists where the statute or amendment relates only to remedies or procedures. *** Even then, however, the statute or amendment will not be applied retroactively if to do so would destroy a substantive right.
*61Ambrosino v. Rodman & Renshaw, Inc., 635 F. Supp. 965, 974 (N.D. Ill. 1986). In the second cited case, Franklin, that court was faced with an issue of whether a person filing a bankruptcy case was entitled to discharge those debts dischargeable as of the date of filing or was allowed only to discharge those debts legally dischargeable as of the date of his final hearing. Although that court did rule that the preferred approach in bankruptcy cases was to' afford the bankrupt those debt discharges in effect at the time of filing, it did so only after holding:
A court is to apply the law in effect at the time it renders its decision unless do so would result in manifest injustice or there is statutory direction or legislative history to the contrary.
Franklin v New Mexico, ex rel. Dep’t of Human Resources, 730 F.2d 86 (10th Cir. 1984).
Neither the subject matter nor the reasoning of either case appears persuasively applicable to the instant matter. We need not, however, decide this issue in order to ultimately decide this case.
3. Registrar's Actual Knowledge Prevented Registrar from Certifying that the Statutory Requirements Had Been Met.
We hold narrowly that under the facts of this case, the actual knowledge of the Registrar of the removal of the' posted notice of this land registration in the Village of Taputimu by its mayor during the first few days of public display prevented the Registrar from legally certifying that “. . . all the requirements of this chapter have been complied with. . .” under A.S.C.A. § 37.0103(d) (1989) or its identical predecessor A.S.C.A. § 37.0103(c) (1981). The Legislature has iterated and reiterated with sanctions its clear requirement that:
Notice of the proposed registration shall be posted for 60 days on the bulletin board at the courthouse in Fagatogo and at 2 public places in the village in which or nearest to which the land is located...
A.S.C.A. § 37.0103(a).
The Registrar knew or should have known that the land registration notice procedures that his office practiced were to be amended during the 60 day notice period of Talae’s proposed land registration. Indeed, friese amendments appear specifically intended to independently verify that the required postings of notices were duly displayed during the 60 day notice period.
*62Regardless of whether P.L. No. 21-1 actually applied to this land registration, the Registrar could not reasonably be expected to rely upon his current posting practices when finally issuing the certificate of registration. His actual knowledge of the removal of the notice precluded any reasonable bases for certifying that all requirements of posting had been complied with. ■ . . ■
We note that in án analogous case, Foloi, supra, this court remanded a land certification case for rehearing on the notice requirements when it appeared the notice had been posted for only 34 days. On rehearing the trial court found that notice in the village where the land was located had only been posted for 34 days, from August 6, 1987 through September 8, 1987, and that the territorial registrar’s affidavit of posting was signed on August 6, 1987, “. . . before, rather than after the posting period was completed.” Foloi, et al v Tuitasi, 22 A.S.R.2d 1, 3 (1992). The trial court concluded that “... compliance with the statutory notice requirements for registration of title under A.S.C.A. § 37.0101 et seq. is an essential feature .of the registration process.” Id. at 4. Further, because -‘... the 60 day notice period mandated under A.S.C.A. § 37.0103 was not met during the proceedings in 1987, there has not been a valid registration of the title to the land as Tuitasi’s individually owned land...”. Id. at 5.
We reach the same conclusion for similar reasons in the instant case. The registration fails for lack of notice.
B. Issues for Relitigation
We also note, without deciding, several other areas of concern that this case presents. As it appears this decision may prompt a new filing for the registration of the subject land, we raise now, without deciding, those concerns so that those issues may be addressed in any subsequent administrative or judicial proceedings.
The 1971 land survey reflects six named individual members of the Tuitele family as claiming the subject land as their individually-owned land. Nearly 18 years later, that same survey was filed when Talae proposed registration of title to the land by the “Heirs of Uaine Tuitele”.
The certificate affirming that notice was duly given to the village chiefs in council at Taputimu at the time the survey was executed some 16 years after the survey, by the village mayor. This person is the same individual which Talae fondly recalls as being a strong advocate for Talae’s claim that the land is individually-owned during at least two instances when the Tulifua family asserted their communal land claims to the land. R.T. at 81-82; R.T. at 66.
*63Both during the 1971 survey and the 1989 registration, the senior matai title of the Tulifua family was vacant. Uaine Tuitele was the son of a holder of the Tulifua title. R.T. at 76. Talae is the grandson of Uaine Tuitele. R.T. at 66. Within this context, we view the proposed 1989 registration of title to the subject parcel of land by Talae as individually owned land of the “Heirs of Uaine Tuitele” as facially suspect.
The record contains no testimony identifying that group of people comprising the “Heirs”. We are provided with no basis for either including or excluding the 6 named individuals asserting ownership of the land under the 1971 survey as being members of the group of ‘Heirs’.
Nor can we reconcile the clear dictates of the recording statute with the use of such a factually and legally vague term. A.S.C.A. § 37.0101(a) provides:
The owner of any land in American Samoa not previously registered may register his title thereto with the territorial registrar, (emphasis added).
This clear, statutory language appears to prohibit a single person, such as Talae, from registering anything other than his title to the subject land. No provision is set forth in this statute specifically authorizing a person to register the title of others or any interest less than clear title to the land.
By his use of the term “Heirs of Uaine Tuitele” (Talae’s grandfather’s heirs), Talae appears to claim title to the subject land vested in such heirs. Yet the Territory’s statute governing intestate succession to real property other than communal lands does not support such a claim. A.S.C.A. § 40.0202 reads:
When any person having any title to any real property dies without disposing of such real property by will, it shall be succeeded to and must be distributed, subject to the payment of debts and the rights of dower, in the following manner:
(a) All real property shall lineally descend forever, to the issue of the decedent, but shall not lineally ascend, except as set forth in subsection (c).
(b) On failure of lineal descendants, the brothers and sisters of the decedent, or their issue, shall succeed to the real property.
(c) When the decedent has left no issue capable of inheriting, nor brothers, nor sisters, nor issue of such, the real estate shall vest in the father if living, and if not, in the mother, if living.
(d) When any person dies leaving none who can claim as heir, *64the surviving spouse shall inherit the estate.
(emphasis added).
On its face, this statute provides only for intestate succession to real property of a decedent with title to such real property, not a mere claim to such land. Nor does intestate succession occur automatically. The court confers such rights upon qualified and eligible heirs after fully complying with the statutes governing the orderly administration of estates. See generally A.S.C.A. §§ 40.0301-40.0342 and specifically 40.0332 which reads in pertinent part:
[T]he trial division of the High Court shall make and file a decree of distribution, which shall name the persons entitled to the estate and the proportions or parts to which each is entitled. Such decree shall be conclusive as to rights of heirs, legatees, devisees and creditors....
In addition to our concerns that such a registration of title as proposed by Talae could thwart the orderly statutory scheme for the succession to individual titles of real property, the lack of named individuals in an initial land registration certificate frustrates the objects of that system. Title to the land is not quieted nor may persons desiring to deal with that land be afforded any certainty as to the conclusiveness of that certificate. Foloi, supra. Stated differently, such practices would lead to an extremely weak original link in a government sanctioned chain of title to individually owned lands.
Allowing registration of lands in such a fashion also raises notice issues. We could easily foresee a situation where a person could believe she was an “heir” and therefore not object to a land registration only to later leam that legally, she could not inherit an interest in the land and, as a result of the finalized land registration, she was barred from pursuing alternative legal claims to the land.
A final concern on the issue of registration of title to individually-owned lands by proxy and vesting title in preceding generations is the apparent potential for avoiding the strict Samoan blood requirements in the land alienation scheme adopted by the Legislature. The Legislature sought to preserve all communal and individually-owned lands for persons of at least one-half Samoan ancestry. A.S.C.A. § 37.0204(c) reads:
If a person who has any normative blood marries another person who has any normative blood, the children of such marriage cannot inherit land unless they are of at least one-half native blood.
*65We see the potential for the easy avoidance of this statutory restriction by allowing the initial registration of individually-owned lands in the “Heirs” of a named ancestor.
Conclusion
We do not lightly reverse the learned trial court’s decision in this matter. We do so only in the face of compelling evidence that the minimal requirements for public notice of this land registration were clearly not met. In addition, the peculiar factual situation presented by this case, coupled with the application of related, relevant statutory mandates, buttress our admittedly narrow finding in this matter.
We specifically do not decide the issue of whether or not the subject land is the property of either of the parties herein. Either side may pursue their land registration objectives as provided by law and thereby quiet title to this land. Indeed, with both parties currently united behind their respective capable and forceful spokesman, the prompt pursuit of a title registration by either or both parties would afford a unique opportunity for both sides to exhaustively air their claims of ownership.
Order
The Opinion and Order of the trial court is hereby reversed and this case remanded thereto with instructions to enter judgment for the Appellant HC Tulifua vacating the 1989 Certificate of Title to the 14.18 acre parcel of land “Nonuaimoa” in the Village of Taputimu to the Heirs of Uaine Tuitele as their individually owned land and to issue an order to that effect to the territorial registrar.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486604/ | OPINION AND ORDER
Appellant Fagaoali'i Laloulu Tagoilelagi (“Tagoilelagi”) appeals from a decision of the Land and Titles Division awarding the matai title “Tagoilelagi” of Vatia to appellee Ulimasao Sítala (“Ulimasao”). The following is a summary of the trial court’s findings with regard to the four selection criteria set forth in A.S.C.A. § 1.0409.
Best Hereditary Right:
The candidates were at odds on family history and were thus unable to agree on the identity and lineage of former titleholders. The court thus relied upon the traditional rule for determining hereditary right. As the son of the previous title-holder, Fagaoali'i has !4 Tagoilelagi blood and a significant advantage over Ulimasao who has, at best, a claim to 1/32 Tagoilelagi blood.
The Wish of the Clans:
While Ulimasao claims to have the support of three of the four traditional clans, Fagaoali'i claims that the family has only one traditional clan. The trial court held that even if there was only one clan in the family, “this clan as a whole still supports Ulimasao’s candidacy.” The trial court thus declined to determine the number of clans in the family.
*68
Forcefulness, Character, Personality, and Knowledge . of Samoan Customs:
The trial court held that the candidates were equally matched on this criterion. Fagaoali'i has a PhD and is the Director of Education for the public school system of American Samoa. Uliinasao served as a technician in the U.S. Army for 10 years, the American Samoa Government for 2 years, and the FAA for the last 19 years. Fagaoali'i has been a matai in the Tagoilelagi family for 22 years; Ulimasao for 21 years. Ulimasao is currently high talking chief of the family. Both have been active in their respective churches.
Value to Family, Village, and Country:
The trial court held that Ulimasao has “distinct eminence” in this criterion because of his clear commitment to the Village of Vatia. Even though Ulimasao has spent 22 years outside of Samoa working in the United States, whenever he has been in Samoa he has lived in Vatia engaged in the affairs of the Tagoilelagi family. Fagaoali'i has spent most of his life in the Village of Aua. Weighing the four criteria, the trial court decided that Ulimasao’s strengths under the second and fourth prongs outweighed Fagaoali'i’s advantage on the first prong.
Discussion
A. No Clear Error with Trial Court’s Finding That Ulimasao Lived in Samoa For One Year Prior to Filing His Objection,
Fagaoali'i’s first issue on appeal is whether the trial court clearly erred in finding that Ulimasao did not live in Samoa for one year prior to filing his objection. A.S.C.A. § 1.0404(a) requires claimants to a matai title to have “resided in American Samoa for one calendar year immediately preceding the date of the claim or objection.” Fagaoali'i claims that Ulimasao did not meet this requirement. The trial court found that Ulimasao moved back to Samoa in June 1993, more than one year before he filed his objection to Fagaoali'i’s claim in September 1994. In re Matai Title "Tagoilelagi", 2 ASR3d 230, 232 (Land & Titles Div. 1998). The trial court’s findings of fact can be set aside only if clearly erroneous. A.S.C.A. § 43.801(1).
The only argument advanced by Fagaoali'i is Ulimasao’s admission to being stationed in Long Beach, California from November 1994 to May 1996.1 See Fagaoali'i Br. at 6-7, 9-10. This admission by itself does not preclude Ulimasao from meeting the requirement of bona fide residency.
*69Furthermore, the parties have not cited any law making a claimant’s place of residence after filing a claim or objection relevant to A.S.C.A. § 1.0404(a). The trial court’s finding that Ulimasao met the residential requirement is not clearly erroneous.
B. The Trial Court Erred in Concluding Ulimasao Enioved the Support of the Majority or Plurality of the Family’s Clans.
The trial court’s determination that Ulimasao prevailed on the “wish of the majority or plurality of the family’s customary clans,” A.S.C.A. § 1.0409(c)(2), was essential to its decision to award the matai title to Ulimasao. The trial court’s determination on this point, however, is contrary to established Samoan law.
Fagaoali'i claims that there is only one family clan remaining, while Ulimasao claims that there are four customary clans extant. The parties do not dispute the trial court’s finding that though the majority of family members support Ulimasao, the family was unable to reach a consensus. In fact, the family eventually decided to award the matai title jointly to Ulimasao and Fagaoali'i to preserve peace. See Tagoilelagi, 2 A.S.R.3d at 234. From these facts, the trial court concluded that Ulimasao prevailed on this criterion regardless of whether the family has one or four clans. Two problems exist with the trial court’s determination.
1. The Court Erred By Not Making Specific Findings Regarding the Composition of the Family’s Customary Clans.
A.S.C.A. § 1.0409(d) requires the trial court’s written decision to “contain findings of fact and conclusions of law on each” of the four statutory criteria. In In re Matai Title “Faumuina”, 26 A.S.R.2d 1 (App. Div. 1994), the Court reversed a trial court matai award because the court did not provide specific findings on the “number, identity and preference of the clans” in the family. Id. at 4. The Court cited In re Matai Title “Gaoteote", AP. No. 103-75, slip op. (App. Div. 1975), for the proposition that “failure to enter a finding on what the clans of a family are and who they support” is an error of law. Id. at 3. “It makes no difference that this determination [the composition of the family’s clans] is difficult.” Id. at 4. The trial court’s failure to make such a determination necessitates reversal and remand for the necessary findings.
2. If the Family Consists of Only One Clan. Then Ulimasao Mav Not Prevail
If there is only one clan in the family, as urged by Fagaoali'i, and that clan has not reached a consensus, then the court should have ignored this criteria and awarded the title to Fagaoali'i. Fagaoali'i did not raise this *70issue in his brief, but one associate judge did dissent on this basis. See Tagoilelagi at 237 (Atiulagi, J. dissenting).
The plain language of the statute focuses on the clans, not the individual members of the family: “the wish of the majority or plurality of those clans of the family as customary in that family.” A.S.C.A. § 1.0409(c)(2). Case law makes clear that individual preferences are only relevant to determining if a particular clan clearly supports a particular candidate. See In re Matai Title “Atiumaletavai”, 22 A.S.R. 2d 94, 98 (Land & Title Div. 1992). To determine clan support, the court does not look to numerical majorities but traditional rules of consensus. See In re Matai Title “Leaeno”, 24 A.S.R.2d 117, 120-21 (Land & Title Div. 1993). Even if there is only one clan in the family, the court still will not consider majority opinion. If there is no consensus around one candidate, the court will instead disregard this criteria altogether. See Reid v. Talalele, 4 A.S.R. 458, 462-63 (Trial Div. 1964)
Under the above line of case law, the trial court committed an error of law when it concluded that Ulimasao would prevail even if the family has only one clan. The family as evidenced by the kava ceremony failed to reach a consensus around Ulimasao’s candidacy. Although the trial court did state that the family “as a whole” supported Ulimasao, it is unclear whether the trial court was referring to traditional mies of consensus or Western norms of majority mle. This issue, therefore, must be remanded for a determination by the trial court.
C. The Trial Court Did Not Err On the Character and Value Prongs.
Fagaoali'i argues that the trial court did not adequately penalize Ulimasao on the character and value prongs for the 22 years he spent working outside of Samoa. Fagaoali'i Br. at 8-9, 11-12.
As for the criteria of “forcefulness, character and personality . . . and . . . knowledge of Samoan customs,” § 1.0409(c)(3). Ulimasao’s absence from Samoa seems only relevant to his knowledge of Samoan customs. The trial court concluded, however, that Ulimasao is “well-versed in Samoan customs” based on its in-court observations, his 21 years of service as a matai, and his current position as high talking chief of the family. See Tagoilelagi, 2 A.S.R.3d at 236. The court’s determination that the candidates are equally fit to assume the matai title is supported by substantial evidence.
Fagaoali'i also asserts that Ulimasao’s absence resulted in his being of less “value ... to family, village, and country,” A.S.C.A. § 1.0409(c)(4). In concluding that Ulimasao prevailed on this prong, the trial court relied heavily on the fact that whenever Ulimasao has been in Samoa he has lived in the village of Vatia and participated actively in family affairs. *71See Tagoilelagi, 2 A.S.R.3d at 236. Fagaoali'i, by contrast, has spent most of his adult life away from the family, in Aua. The court’s conclusion that Ulimasao would be of greater value to this family and village than Fagaoali'i is supported by substantial evidence.
D. Failure to Recuse Associate Judge.
Finally, Fagaoali'i argues that one of the associate judges should have recused himself because the judge’s wife is Ulimasao’s wife’s first cousin and that as a result, the judge and Ulimasao participate in the same family affairs.2 Ulimasao claims, that Fagaoali'i’s counsel is also closely related to the same judge. See Ulimasao Br. at 11. The trial court found that recusal was not required. Without details of the nature of the social relationship between the judge and Ulimasao, which Fagaoali'i failed to provide, the first cousin relationship of the wives alone would not mandate recusal. The trial court noted that the associate judge in question did fail to volunteer the details of his relationship to Ulimasao as required by the Code of Judicial Conduct for American Samoa, Canon 3(A)(6)(b). See Tagoilelagi, 2 A.S.R.3d at 233 n.2.
Under the Canons of Judicial Ethics, “a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned.” Code of Judicial Conduct for American Samoa, Canon 3 (A)(6). The test is “whether a disinterested observer would entertain significant doubt that justice would be done.” In re Matai Title "Faumuina", 26 A.S.R.2d 1, 5 (App. Div. 1994) citing Pepsico v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985). Because it appears that the trial court applied the correct legal standard,3 we would in the normal course review the trial court’s conclusion for clear error. See In re Matai Title "Faumuina”, 26 A.S.R.2d at 6. However, in that the Court has found that remand is required on the clans issue, we decline to reach the *72merits of the recusal issue but mandate recusal on remand in an “abundance of caution.”
It is so ordered.
It appears Ulimasao was temporarily stationed in California for work. His immediate family remained in American Samoa.
Fagaoali'i did not present this issue to the trial court until his motion for reconsideration, claiming he was previously unaware of the relationship. See Order Denying Motion For Reconsideration or New Trial at 5. The trial court found it “difficult to believe that. . . Fagaoali'i and his counsel would be unaware of this relationship and activities . . .” Id. Ulimasao claims that Fagaoali'i’s counsel is, in fact, “closely related” to the same judge. See Ulimasao Br. at 11. The trial court, nonetheless, addressed the merits, presumably deciding that Fagaoali'i had not waived the issue.
We note that A.S.C.A. § 3.1007 requires a judge to disqualify himself [herself] in situations where he [she] or a family of which he [she] is a member has a “substantial interest.” In In re Matai Title "Faumuina, ” 26 A.S.R.2d at 5, this Court defined “substantial interest” as encompassing the “appearance of impropriety” standard set out in the Canons of Judicial Conduct. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486606/ | *79ORDER DENYING MOTION TO SUPPRESS STATEMENTS BY DEFENDANT’S WIFE, TO PROHIBIT HER TESTIMONY, AND TO SCHEDULE EARLIER JURY TRIAL
This matter involves the alleged murder of a young woman by her father, defendant Tuituaolo Olene Togiailua (“Togiailua”). The chief eyewitness for the prosecution is Tuituaolo’s wife, who has asserted that she does not wish to testify, purporting to invoke the privilege of spousal immunity. A formal motion to suppress her statements and to prevent her from testifying was filed on April 17, 1999. The motion also requested an earlier trial date. Hearings were held on April 19 and May 3, 1999, with Togiailua and both counsel present. The court has reviewed the wife’s testimony, written submissions, and oral arguments on the issue of the spousal privilege.
Discussion
A. Spousal Immunity Privilege
The specific issue of the existence and application of the spousal immunity privilege is one of first impression in this jurisdiction. Privileges generally, however, are governed by TCRE 501:
Except as otherwise required by the Constitution of the United States or of American Samoa or provided by an Act of the Fono, the privileges of a witness, person, government or political subdivision thereof shall be governed by the principles of common law.
For guidance in our interpretation, we look to the development of the spousal privilege as it has evolved in the federal and various state courts.
Originally, the notion of spousal immunity grew out of the pretwentieth century concept that husband and wife were a single entity in the eyes of the law, and that each was therefore incompetent to sue or appear as a witness against the other. Gloria M. Sodaro & Paul A J. Wilson, Testimonial Privileges § 5.02 (Scott N. Stone & Robert K. Taylor eds., 2d ed. 1995). Although the laws regarding spousal relations — and particularly regarding women’s rights within the marriage — have changed dramatically since the late nineteenth century, the privilege of spousal immunity has survived under the rationale that it helps to promote harmony within the marriage and family. Hawkins v. United States, 358 U.S. 74, 79 (1958) (privilege properly perseveres to “foster family peace”).1
*80Nevertheless, the recent trend has been to increasingly limit the reaches of spousal immunity, largely in recognition of the fact that certain acts within a family by their very nature tend to undermine the marital and family harmony which the privilege seeks to protect. United States v. Cameron, 445 U.S. 40, 40-41 (1980). Among those acts are crimes against the spouse and, by extension, against the children. Id.; Herritt v. State, 339 So.2d 1365 (Miss. 1976); United States v. Allery, 526 F.2d 1362, 1366 (8th Cir. 1975) (“a serious crime against a child is an offense against that family harmony and to society as well”). In short, acts of violence within a family are far more disruptive than any subsequent testimony offered by a defendant’s spouse could ever be. We agree with those courts holding that the shield of spousal immunity is necessarily removed in such cases.
In this particular case, the alleged crime at issue is no less than the murder of a child by one of her parents. In balancing the competing goals of family harmony and the need for a complete and thorough fact-finding, the interests of justice require that the scales be tipped in favor of the latter. Spousal immunity does not apply, and Togiailua’s wife may properly be compelled to testify.
B. Speedy Trial
Togiailua also requests, on the ground of his right to a speedy trial, that his jury trial now scheduled on August 3, 1999, be rescheduled to an earlier date no later than June 15, 1999. A defendant’s right to a speedy trial in a criminal prosecution is protected by Article I Section 6 of the Revised Constitution of American Samoa. Togiailua was arrested on February 11, 1999, and bail was set on February 18, 1999. Unable to post bail, set at reasonable $35,000 for a homicide prosecution, he has been in pretrial confinement since then. The trial date was scheduled at the arraignment without Togiailua’s objection. Moreover, given the criminal caseload of the court and an appropriate time to prepare for trial in a homicide prosecution, the trial is scheduled at a reasonable interval after Togiailua’s arrest and arraignment in this court. Togiailua’s right to a speedy trial has not been abridged.
*81Order
Togiailua’s motion to suppress statements by his wife and to prohibit her testimony for the prosecution against her husband, on the ground of the privilege of spousal immunity, is denied. His motion for an earlier trial date, on the ground of his right to a speedy trial, is also denied.
It is so ordered.
A separate and distinct privilege, which protects the confidentiality of spousal communications, was also developed at common law. Unlike *80spousal immunity, which can prevent testimony regarding conduct or other facts, this more limited privilege shields only private communications between husband and wife, for the specific purpose of encouraging openness and honesty within a marriage. United States v. Cameron, 556 F.2d 752, 755 (5th Cir. 1977); Bergner v. State, 397 N.E.2d 1012 (Ind. 1979); Coleman v. State, 380 A.2d 49 (Md. 1977). In the instant case, Togiailua’s wife would be testifying as to an act which she observed rather than a confidential conversation between herself and her husband. Thus, the marital communications privilege is inapplicable. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486607/ | ORDER DENYING DEFENDANT’S MOTION TO SUPPRESS EVIDENCE
On June 2, 1999, defendant Punefu M. Tuaolo (“Tuaolo”) filed in this matter a motion to suppress evidence, alleging that certain evidence seized during a search of his residence was not listed among those items specifically sought in the warrant authorizing that search. Plaintiff American Samoa Government (“ASG”) filed its memorandum in opposition on June 28, 1999. A hearing was held on the motion on July 12, 1999, with Tuaolo and both counsel present.
Facts
The facts relevant to this motion appear to be undisputed. In connection with an armed robbery and shooting incident of April 30, 1998, a search warrant authorizing a search of Tuaolo’s residence was obtained and executed the following day, May 1, 1998. The search warrant properly identified those items to be seized, which included a black flashlight, a backpack, a cellular phone, a handgun, a shotgun, and certain articles of clothing which had been described by one of the victims as those worn by her attacker.
In executing the warrant, police did locate several of the items listed, including the flashlight and the clothing, while others were not found. In addition, Captain Va'a Sunia (“Simia”), a member of the police search party, noticed a roll of masking tape on top of a dresser in a bedroom and seized this item. It is this roll of masking tape which Tuaolo now seeks to suppress, on the ground that it was not identified in the search warrant *83as evidence sought during the search.
Discussion
Mirroring its federal counterpart in the Fourth Amendment, Article 1, Section 5 of the Revised Constitution of American Samoa requires that a search warrant “particularly describ[e] ... the persons or things to be seized.” Under the well-known Rule of Exclusion, items seized illegally may be suppressed upon a timely motion. Weeks v. United States, 232 U.S. 383 (1914). Moreover, Article 1, Section 5 explicitly states that “[e]vidence obtained in violation of this section shall not be admitted in any court.” As noted above, the masking tape was not included in the list of things to be seized, and therefore that seizure was illegal unless an exception exists to justify it. We agree with ASG that the “plain view” rule constitutes such an exception in this case.
The “plain view” exception was adopted by this court in ASG v. Loia, 16 A.S.R.2d 1 (Trial Div. 1990). In that case, the court applied the framework set forth by the Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443 (1971), under which a warrantless seizure of private property might nevertheless be permitted when three requirements have been met:
First, the police officer must lawfully make an “initial intrusion” or otherwise properly be in a position from which he can view a particular area. Id. at 465-468. Second, the officer must discover incriminating evidence “inadvertently,” which is to say, he may not “know in advance the location of [certain] evidence and intend to seize it,” relying on the plain-view doctrine only as a pretext. Id. at 470. Finally, it must be “immediately apparent” to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. Id. at 466.
ASG v. Loia, 16 A.S.R.2d 1, 3 (quoting and citing Coolidge). We will briefly discuss each of these three requirements in turn.
A. Lawful Intrusion
The lawfulness of the initial intrusion into Tuaolo’s residence is not contested. The police were conducting the search pursuant to a warrant, which was supported by probable cause. Further, there was no additional “intrusion” once the search commenced: Tuaolo does not deny that the masking tape in question was found in plain view during the course of carrying out the otherwise lawful search.1
*84B. Inadvertent Discovery
As the Coolidge court envisioned it, the requirement that the evidence in question be discovered inadvertently would serve to prevent the seizure of evidence “which the police know in advance they will find in plain view and intend to seize.” Coolidge, at 471. There is no evidence before us to suggest that Sunia’s discovery of the masking tape was in any way contemplated prior to the execution of the warrant. Because we find that the seizure in this case does satisfy the “inadvertent discovery” requirement of Loia and Coolidge, we need not reach in this case the issue of whether this prong of the plain view test should be abandoned in this jurisdiction, as the Supreme Court did in Horton v. California, 496 U.S. 128 (1990).
C. Incriminating Nature of Evidence “Immediately Apparent”
Although several tests have been put forward by courts in evaluating whether this final requirement has been met, the inquiry essentially boils down to the existence of probable cause. Texas v. Brown, 460 U.S. 730, 742 (1983). Probable cause is a “flexible, common-sense standard,” and merely requires that a police officer reasonably believe that certain items “may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.” Id.
As the head of ASG’s criminal investigation unit, Sunia was generally aware of the progress of the investigation prior to the search of Tuaolo’s house. The seized roll of masking tape was located in a room identified by Tuaolo’s wife as Tuaolo’s bedroom. Sunia knew that masking tape was used to bind one victim, who had identified Tuaolo as the person who bound her. He also knew that a second victim was bound with masking tape contemporaneously. One roll was found at the crime scene, and Sunia reasoned that separate rolls may have been used. Furthermore, from his law enforcement training, Sunia was aware that modem police laboratories are capable of drawing valuable evidentiary conclusions from such tape, including possibly matching the seized roll to any segments found at the scene of the crime.2 Considering the *85circumstances as a whole, we believe that Sunia had probable cause to seize the roll of masking tape from Tuaolo’s residence.
Conclusion and Order
For the foregoing reasons, we conclude that the seizure of the masking tape in this case was proper under the plain view doctrine. Tuaolo’s motion to suppress evidence is therefore denied.
It is so ordered.
We note that if a search continues after all the items identified on the *84warrant had been found, then the further search activity may constitute an unlawful intrusion and thereby render the plain view exception inapplicable. In this case, however, several of the listed items were never located, so there is no issue regarding the order in which the various pieces of evidence were found.
In his motion, Tuaolo observes that “[i]t is general knowledge that almost every family in American Samoa has a masking tape [sic] for taping fine mats and other items.” Motion to Suppress, at ¶ 3. This argument misses the point. The requirement that the, evidence be *85incriminating does not mean it must be inherently incriminating (e.g., guns, drugs, contraband), but. rather, as one court put it, that it “clearly and definitely relate to. the behavior which prompted the issuance of the search warrant.” State v. Michaelson, 214 N.W.2d 356, 359 (Minn. 1973). As in the instant case, even an otherwise common and innocuous item such as a roll of masking tape may, under certain circumstances, serve as incriminating evidence and would therefore be appropriate for seizure. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486608/ | *87ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTIONS TO SUPPRESS
Defendant Steven Kaplan is charged with one count of Unlawful Possession of a Controlled Substance, in violation of A.S.C.A. §§ 13.1022 and 13.1006. On August 13, 1999, a hearing was held on defendant’s three separate motions to- suppress evidence, all of which were filed on July 12, 1999. Those motions, listed in. the order in which they were argued, may be described briefly as follows:
a. Motion to suppress test results — this motion seeks to suppress the results of field tests conducted to determine the identity of a seized substance believed to be marijuana.
b. Motion to suppress evidence — this motion requests the suppression of physical evidence seized in the course of effecting defendant’s arrest.
c. Motion to suppress statements — this motion arises out of an alleged failure to provide constitutionally-required Miranda warnings.
Plaintiff American Samoa Government (“ASG”) responded to defendant’s motions on July 20, 19 and 29, 1999, respectively. The hearing was held with all counsel and the defendant present.
Discussion
The facts relevant to each motion will be addressed with the individual discussions below.
A. Motion to Suppress Field Test Results
.On the evening of March 21, 1999, Special Agent David Snow (“Agent Snow”) and Sergeant Maturo Ta'afua (“Sergeant Ta'afua”) went to defendant’s house in connection with a complaint that he had lodged against his neighbors for noise and disturbing the public peace. After discussing the incident, defendant invited the officers into his dwelling, where they found in plain view and, as will be discussed below, hidden throughout the small room — quantities of a substance that appeared to them to be marijuana. Upon returning to Substation West, Officers Snow and Ta'afua turned the evidence over to Lieutenant Vaeto’elau Laumoli, who performed field tests, known as Duquenois-Levine tests, on the seized substance. The field tests indicated the presence of tetrahydrocannibinols (THC), the active ingredient of marijuana, and it is these test results which defendant now seeks to suppress on the ground that the government has failed to demonstrate their scientific validity.
*88This court recently issued an opinion on this exact same issue in- CR No. 19-99, American Samoa Government v. Fa'atui Isaia. As in that case, ASG has .indicated in its brief herein that it will also introduce the results of more accurate forensic tests yet to be performed, such- that the introduction of the results of the field tests would be merely , cumulative evidence on the issue of the substance’s identity.' In denying the motion to suppress, the court in Fa 'atui reasoned as follows:
Whether properly styled as a motion to suppress or as a motion in limine, we find no basis for excluding the results of the field tests. ASG has specifically stated that this evidence will not be introduced for the purpose of proving the nature of the substance, but rather simply to establish chain of custody. Although they do not purport at this time to have knowledge regarding the validity of the process or its degree of acceptance in the scientific technical community, [the public safety officers] do appear to be qualified to testify regarding their administration of the tests and the results therefrom, as well as to their training and expertise in conducting such tests. '
If ASG fails to introduce further forensic evidence — which would effectively convert the field test results from potentially cumulative evidence into the sole evidence of the substance’s identity — then [defendant’s motion may be renewed.
Order Denying Defendant’s Motion to Suppress Test Results, slip op. at 2-3 (Trial Div. August 2, 1999). We see no reason to deviate from this analysis in the instant case.
B. Motion to Suppress Evidence Seized During Arrest
Defendant’s second motion seeks to suppress evidence seized at his home during a search contemporaneous with his arrest. The facts relevant to this motion were not disputed at the hearing. Upon entering defendant’s room, certain items were — apparently conceded— discovered in plain view, including some amount of marijuana and a gram scale used for weighing quantities of marijuana. However, additional evidence was discovered which was not readily visible to the arresting officers, and it is this evidence which defendant seeks to suppress through this motion. Specifically, according to the hearing testimony of Agent Snow, the officers located additional quantities of a substance believed to be marijuana during and immediately after cuffing the defendants’ hands behind his back. One baggie, containing three cigarettes, was found under the mattress of the bed located just behind where defendant was standing; an additional quantity of suspected marijuana was uncovered beneath some papers in an open box located *89approximately two to four feet from the defendant.
Defendant does not contest that probable cause existed for his arrest, and the Supreme Court has long recognized that certain limited searches, conducted contemporaneously with and incident to a legal arrest, are not violative of the Fourth Amendment.1 While searches of the arrestee’s person have been found to be legal per se under United States v. Robinson, 414 U.S. 218 (1973), the Supreme Court has expanded the scope of permissible searches to also include “the area into which an arrestee might reach in order to grab a weapon or evidentiary items” or the area “within his immediate control.” Chimel v. California, 395 U.S. 752, 763 (1969).
Police officer safety, as well as the need to protect evidence which might be quickly and easily destroyed, serves as the underlying rationale for this exception to the warrant requirement. In that regard, the defendant’s immobilization via handcuffs would appear to defeat the purpose of the “immediate control area search,” thereby rendering it illegal. ASG, however, urges our consideration of Robinson, supra, in which the Court explicitly found that even where the particular circumstances of the arrest do not demonstrate any likelihood of danger or destruction of evidence, the search may nevertheless be legal: “The authority to search the person . . . does not depend on what a court may later decide was the [degree of risk] in a particular arrest situation.” 414 U.S. 218, 235. As quoted above, though, the Robinson holding was limited to clarifying the authority to search “the person” incident to arrest. Id. Indeed, the Court had gone to great pains to explicitly note this distinction:
[The search incident to lawful arrest] has historically been formulated into two distinct propositions. The first is that a search may be made of the person of the arrestee. The second is that a search may be made of the area within the control of the arrestee.
Examination of this Court’s decisions shows that these two propositions have been treated quite differently. The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged until the present case. The validity of the second proposition, while likewise conceded in principle, has been subject to differing interpretations as to the extent of the area which may be searched.
Id. at 224 (emphasis in original). We agree that, while stemming from the same rationale, these two searches present very different *90considerations, and we are not inclined to extend Robinson’s bright-line test to automatically permit search of the “immediate control area” in any given arrest situation.
ASG similarly offers New York v. Belton as analogous to the circumstances in this case. 453 U.S. 454 (1981). In that case, police officers arrested the occupants of an automobile upon probable cause, and then proceeded to thoroughly search the interior of the passenger compartment even after the arrestees had been handcuffed and removed a safe distance from the vehicle. Among the evidence ultimately discovered was a quantity of cocaine located in a zipped jacket pocket left on the back seat. Refusing to suppress this evidence, the Supreme Court upheld the search and found that the entirety of the passenger compartment had been “within the arrestee’s immediate control” within the meaning of the Chimel case. Id. at p. 462. Although this case does address the “immediate control area” issue directly, we again find its application to be limited. As in Robinson, the Court fashioned a bright-line rule permitting a certain category of searches; in doing so, however, it narrowly defined the question presented to “the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants.” Id. at 459. Moreover, the Court explicitly cautioned thát “[o]ur holding today does no more than determine the meaning of Chimel’s principles in this particular and problematic context.” Id. at 460, n.3. Given this careful limiting language, we believe that the Belton court did not intend that its holding should be applied to non-automobile arrest situations.
Unlike searches of the person or automobiles, which are now governed by the bright-line mies of Robinson and Belton as discussed above, “immediate control area” searches of premises remain subject to a case-by-case analysis of factors indicating the presence or absence of risk to officers or evidence. Most courts examining the issue have held, and we agree, that placing a defendant in handcuffs effectively limits his “control” over his surrounding area such that the continued search of such area, in most circumstances, becomes unwarranted. United States v. Blue, 78 F.3d 56 (2nd Cir. 1996) (search by lifting mattress off box spring improper where defendant was handcuffed and on the floor, two feet from the bed). See also United States v. McConnell, 903 F.2d 566 (8th dr. 1990); United States v. Bonitz, 826 F.2d 954 (10th Cir. 1987); United States v. Lyons, 706 F.2d 321 (D.C. Cir. 1983); United States v. Cueto, 611 F.2d 1056 (5th Cir. 1980); United States v. Berenguer, 562 F.2d 206 (2d Cir. 1977). However, we also reject the notion that the very fact of handcuffing alone necessarily causes the search to be illegal. Young v. United States, 670 A.2d 903 (D.C.App. 1996) (defendant’s restraints did not render search illegal when police had strong reason to believe that guns were nearby); United States v. Home, 4 F.3d 579 (8th Cir. 1993) (search of couch where arrestees had been sitting found to be *91lawful even when defendants were handcuffed because officers “could reasonably have believed that weapons were within reach of the handcuffed detainees”); United States v. Bennett, 908 F.2d 189 (7th Cir. 1990) (fact of handcuffing not dispositive when loaded weapons had already been found in plain view and there was reasonable possibility that accomplices could “burst into the room to try to help their friends”).
Because defendant’s handcuffing is persuasive but not necessarily dispositive2, we must therefore consider the other circumstances relating to this particular arrest. In analyzing similar situations, courts have looked to many factors, including the nature of the alleged crime, the likelihood that weapons would be found and the ratio of arresting officers to arrestees. In reviewing the facts of the arrest in the instant case, given the arrestee’s immobilization, we do not find the degree of risk necessary to justify the search. Indeed, we can hardly conceive of an arrest situation less fraught with danger: the suspected crime, possession of marijuana, was nonviolent in nature, and the evidence of that crime not easily destructible by a handcuffed arrestee; defendant was not surprised in the act of committing a crime, but father invited the officers into his dwelling; he was clearly alone, arrested by two able officers, and showed no sign of resistance whatsoever; and the scene, as acknowledged by Agent Snow as a small one room “box” type shack without windows and one doorway, hardly admits the hidden accomplices possibility.
In its brief, ASG further argues that policy considerations favor a standard which would give arresting officers carte blanche authority to search within a limited radius even after handcuffing an arrestee. To rule otherwise, it contends, would place “a premium on foolhardiness on the part of officers” because “[tjhey could only perform the search if they left a suspect at liberty to move around and possibly gain control of a weapon.” Memorandum in Opposition, at 9 (emphasis added). On the contrary, we believe that there is another way that the search could be conducted even with due regard for officer safety, namely, that method which is required by the Fourth Amendment: take the minimal time and effort necessary to obtain a proper search warrant. Having physically secured the arrestee under the circumstances of this case; we find no reason that Agent Snow and Sergeant Ta'afua could not safely have obtained a warrant for any further search of the room.
*92C. Motion to Suppress Statements
Finally, defendant seeks to suppress certain statements made by him on the ground that they were made in the absence of constitutionally-required Miranda warnings. In Miranda v. Arizona, the Supreme Court set forth the requirements for advising a defendant of his legal rights prior to custodial interrogation. 384 U.S. 436, 444-5 (1966); ASG v. Vagavao, 3 A.S.R.3d 72, 76-77 (Trial Div. 1999). .
With one notable exception, the facts regarding these statements are not in dispute, and are recounted in ASG’s response brief. Upon entering defendant’s room and seeing the suspected marijuana on the table, Agent Snow asked two questions: “What? You invite cops into your room with dope on the table?” and “What dcr you expect us to do now, just walk away and forget this happened?” The defendant responded to each by shaking his head and looking down at the floor. After receiving no verbal response, Agent Snow proceeded to ask “Where is the rest of the stuff because I know there’s more?” The defendant responded pleadingly, “Come on, DaVe; come on, Dave.”
Defendant was then placed under arrest, and it is at this point that we reach the critical disputed question of fact. At the hearing, Agent Snow testified that, at the time of the arrest, he advised defendant of his full constitutional rights; his written report, however, simply recorded that he had reminded defendant of his “right to remain silent,” only one component of those warning required by Miranda. This entry in the report notwithstanding, we rule as a finding of fact that Agent Snow did indeed advise defendant of the entirety of his constitutional Miranda rights, as he asserted at the hearing. Agent Snow is an experienced and well-trained officer who has certainly made dozens of arrests throughout his career. To such an officer, the Miranda warnings necessarily become a rote recitation, memorized and administered routinely at the time of arrest. Ironically, we would be more troubled if the disputed issue of fact was whether any of the Miranda rights were given at all; under the instant circumstances, however, we think it highly unlikely that Agent Snow would have given the defendant only a subset of those rights which he had been trained to give.3
*93Given these facts, therefore, we find no grounds for suppressing any of defendant’s statements. The initial questions and responses prior to the arrest pose no difficulty, as they did not amount to custodial interrogation within the meaning of Miranda. See ASG v. Taylor, 19 A.S.R.2d 105, 106-07 (Trial Div. 1991). Although defendant may or may not have felt free to leave, these unique circumstances — in which the defendant freely invited the officers into his home containing marijuana in plain view — lead us to believe that the pre-arrest conversation was not custodial in nature.
With respect to statements made by the defendant after his arrest, we find that any such statements were made subsequent to his being advised of his full constitutional rights, and we find no reason to believe that those statements were not made freely and voluntarily. Defendant is an educated adult, a teacher. He was given his Miranda warnings, and Agent Snow even expounded at additional length upon his right to remain silent. Finding no evidence to support an implication of coercion, we therefore decline to suppress defendant’s statements in this matter.
Order
For the foregoing reasons, defendant’s motions to suppress test results and defendant’s motion to suppress statements are hereby denied. Defendant’s motion to suppress evidence not seen in plain view is hereby granted.
It is so ordered.
The Fourth Amendment to the U.S. Constitution is mirrored in our own Revised Constitution of American Samoa at Article 1, Section 5.
Cf. United States v. Jones, 475 F.2d 723, 728 (5th Cir. 1973):
[Whether hands were cuffed in front of behind the body is] relevant to weapons or destructible evidence is the crucial factor • in the Chimel analysis.
We realize that police reports are hardly produced with the needs of defense counsel in mind, but public safety officers would be well-advised to use in their written reports a more accurate and inclusive term such as “constitutional rights” or “Miranda rights,” given Agent Snow’s testimony at the hearing we are not particularly troubled by the report entry. Although it is of critical importance that the full Miranda warnings actually be given, we do recognize that, as a term of reference to this process, “the right to. remain silent” may be viewed by some— however incorrectly — as an interchangeable descriptive phrase. *93Moreover, Agent Snow did have a reasonable explanation for the entry, testifying that in the course of advising the defendant of all of his constitutional rights, he had particularly expounded upon the right to remain silent, and had merely meant the report to reflect this fact. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486609/ | ORDER DENYING MOTION TO SUPPRESS EVIDENCE
On July 23, 1997, defendant Alfred Faumuina1 (“Faumuina”) was placed on probation for two years for his conviction of assault in the third degree, a class A misdemeanor. As one condition of his probation, Faumuina must be a law-abiding citizen. On June 25, 1999, his probation officer filed an affidavit to initiate probation revocation proceedings, alleging that on June 24, 1999, Faumuina unlawfully possessed a 9mm handgun (‘the handgun”).
Plaintiff American Samoa Government (“ASG”) commenced prosecution of Faumuina for unlawful use of a weapon, by knowingly carrying the handgun concealed on his person, a class 13 felony. The information charging this offense, in CRNo. 48-99, was filed on July 12, 1999. Faumuina’s motion to suppress evidence in that action is pending.
We found probable cause to proceed with the probation revocation proceeding on July 12, 1999. During the subsequent formal evidentiary hearing on July 30, 1999, Faumuina objected to the introduction of the handgun, and the ammunition found with it, on the grounds that this evidence was the product of an unlawful search and seizure. We invited the parties to brief the issue, and took the unreasonable search and seizure evidentiary issue and the probation violation determination under advisement.
Facts
During the morning of June 24, 1999, an ASG team, including police Lieutenant Vaito'elau Laumoli (“LT Laumoli”) and Detective Sergeant Ta'ase Sagapolutele (“SGT Sagapolutele”), inspected various premises for the presence of illegal poker machines. At the market place in Fagatogo, the team confiscated machines believed to belong to Faumuina. Faumuina came to this site while the process was in progress *96and acted with displeasure over the seizure of these machines. Faumuina and other private citizens then followed and observed the activities of the team at several other locations in the Pago Pago Bay area.
The search and seizure in question took place outside of a building in Aua. While SGT Sagapolutele waited outside in the police unit, LT Laumoli and other team members went inside the building. Faumuina and another citizen began to follow LT Laumoli’s group into the building. LT Laumoli then asked Faumuina and his immediate companion to leave the area so as to not disrupt the team’s inspection. Faumuina and his companion apparently acceded to this request. However, SGT Sagapolutele had stepped out of the vehicle and was approaching Faumuina.
When SGT Sagapolutele was within approximately three yards of Faumuina, he noticed what appeared to be the outline of a handgun in the waist pouch on Faumuina’s person. Closing to within a couple of feet of Faumuina, SGT Sagapolutele discerned the gleam of metallic objects that looked like the tips of loose bullets inside the pouch. SGT Sagapolutele asked Faumuina about the contents of the pouch, and Faumuina did not reply.
At this point, SGT Sagapolutele was concerned that Faumuina was armed and potentially dangerous, and he reached to pat down the waist pouch. Faumuina twisted to away as if to prevent the contact. SGT Sagapolutele was still able to touch the pouch and felt a hard object which he believed could be a handgun. SGT Sagapolutele then held Faumuina, opened the pouch, and discovered the loaded handgun. Loose bullets for the handgun were also in the pouch.
Faumuina seeks to suppress the handgun and bullets on the ground that the search was not lawful because SGT Sagapolutele did not have reasonable suspicion sufficient to justify the search. Faumuina also wants his statements to the police suppressed.
Discussion
Mirroring its federal counterpart in the Fourth Amendment, Article 1, Section 5 of the Revised Constitution of American Samoa states that “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall -not be violated . . . .” Under the rule of exclusion, items seized illegally may be suppressed upon a timely motion. Weeks v. United States, 232 U.S. 383 (1914). Moreover, Article 1, Section 5 of the Revised Constitution of American Samoa explicitly states that “[ejvidence obtained in violation of this section shall not be admitted in any court.” This search was not made pursuant to a warrant and was therefore unlawful unless an exception exists to *97justify it. We agree with ASG that a “Terry stop and frisk” constitutes such an exception in this case.
In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court defined a “frisk” as “measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” The Court determined that a frisk constitutes a search within the meaning of the Fourth Amendment that must be “limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.”
SOT Sagapolutele’s search falls within this definition of a frisk. He opened Faumuina’s waist pouch to determine whether Faumuina was carrying a handgun, and if so, to neutralize any threat the firearm might pose. SGT Sagapolutele only searched Faumuina’s pouch in which the handgun and bullets were in fact located. The search was thus limited to discovering ready weapons on Faumuina’s person.
Justification for a frisk requires two elements. First, the search must be reasonably related in scope to the circumstances. SGT Sagapolutele searched only the waist pouch in which he believed the handgun and ammunition to be located, satisfying this element.
Second, the search must be justified at its inception. Two factors play into whether a frisk is justified at its inception. First, the law enforcement officer must be rightfully in the presence of the party frisked. This is not an issue here, because Faumuina put himself in the presence of the officer.
Second, the law enforcement officer must suspect that the party may be armed and dangerous. Use of the word may indicates that this standard is quite low, and considerable deference is afforded law enforcement authorities in this determination. As stated in United States v. Montoya de Hernandez, 473 U.S. 531, 541 (1985), this standard is a good deal lower than that of probable cause. The Supreme Court further elucidated this standard in Ybarra v. Illinois, 444 U.S. 85 (1979), wherein it stated that Terry “created an exception to the requirement of probable cause” whereby “a law enforcement officer, for his own protection and safety, may conduct a pat-down to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted.”
SGT Sagapolutele’s testimony indicated a reasonable suspicion that Faumuina was armed, having seen what appeared to be a handgun in Faumuina’s waist pouch. From the circumstances of the day in question, the sergeant could also have reasonably believed Faumuina to be dangerous. Faumuina was displeased at having poker machines seized *98earlier at the Fagatogo market place and persistently followed the team carrying out the inspections for other illegal machines.
Even if Faumuina was acting innocently, however, a frisk was justified in this instance. People v. Prochilo, 363 N.E.2d 1380 (1977) held that a frisk was proper where the outline of a gun was visible through clothing, because an arrest and search on probable cause of carrying a concealed weapon could have been made. The situation here is almost identical, because SOT Sagapolutele could have immediately arrested and searched Faumuina on suspicion of carrying a concealed firearm in violation of A.S.C.A. § 46.4203 (a)(1). In addition, the court in United States v. $84,000 US. Currency, 717 F.2d 1090 (7th Cir. 1983) held that a law enforcement officer could properly frisk a person voluntarily accompanying him to the airport upon observing a suspicious bulge in that person’s clothing. In this case, Faumuina was in the presence of the police officers voluntarily and the handgun made an obvious bulge in the Faumuina’s waist pouch.
The importance accorded police safety by the courts also argues for the lawfulness of the search. According to the Supreme Court, “the State’s proffered justification — the safety of the officer — is both legitimate and weighty. ‘Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.’” Pennsylvania v. Mimms, 434 U.S. 106 (1977). This policy rationale applies equally here. There is no justification for requiring SGT Sagapolutele to risk his life and the lives of fellow officers and civilian team members because he could not be sure whether Faumuina was displeased enough to use the handgun.
Faumuina also rhetorically questions the purpose or legitimacy of the second pat down the police officers made of his person after Faumuina was arrested and handcuffed. The officers were justified in conducting this pat down because a protective search is permissible after a suspect is handcuffed. ‘[I]t is by no means impossible for a handcuffed person to obtain and use a weapon concealed on his person,’ and the suspect may in any event be able to access a weapon concealed on his person once the handcuffs are removed. United States v. Sanders, 994 F.2d 200 (5th Cir. 1993)
Conclusion and Order
For the foregoing reasons, we conclude that the seizure of the handgun and ammunition in this case was proper as a “Terry stop and frisk.” Therefore, Faumuina’s motion to suppress the handgun and ammunition is denied, and these items are admitted into evidence.
We will, however, postpone making the formal decision on the probation *99violation until the trial in CR No. 48-99 is concluded.
It is so ordered.
Alfred Faumuina is the same person as Poe Faumuina, the named defendant in CR No. 48-99. Identity is not at issue in either case. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486610/ | ORDER DENYING MOTION TO SUPPRESS EVIDENCE
On July 12, 1999, plaintiff American Samoa Government (ASGU) filed the information in this action, charging defendant Poe Faumuina1 (“Faumuina”) with the crime of unlawful use of a weapon, by knowingly carrying a 9mm handgun (“the handgun”) concealed on his person, a class D felony.
Faumuina moved to suppress the handgun and ammunition seized, by, and his statements to, the police. The court heard this motion on October 4, 1999. Faumuina’s alleged possession of the handgun is also the basis for probation revocation proceedings in CR No. 8-97. Thus, for purposes of the present motion, in addition to the testimony then taken on October 4, we took judicial notice of the testimony taken and evidence offered at the probation revocation hearing on July 30, 1999.
Facts
During the morning of June 24, 1999, an ASG team, including police Lieutenant Vaito'elau Laumoli (“LT Laumoli”) and Detective Sergeant Ta'ase Sagapolutele (“SGT Sagapolutele”), inspected various premises for the presence of illegal poker machines. At the market place in Fagatogo, the team confiscated machines believed to belong to Faumuina. Faumuina came to this site while the process was .in progress and acted with displeasure over the seizure of these machines. Faumuina and other private citizens then followed and observed the activities of the team at several other locations in the Pago Pago Bay area.
The search and seizure in question took place outside of a building in Aua. While SGT Sagapolutele waited outside in the police unit, LT Laumoli and other team members went inside the building. Faumuina and another citizen began to follow LT Laumoli’s group into the building. LT Laumoli then asked Faumuina and his immediate companion to leave the area so as to not disrupt the team’s inspection. Faumuina and his companion apparently acceded to this request. SGT *101Sagapolutele then stepped out of the police vehicle, and, approached Faumuina.
When SGT Sagapolutele was within approximately three yards of Faumuina, he noticed what appeared to be the outline of a. handgun in the waist pouch on Faumuina’s person. Closing to within a couple of feet of Faumuina, SGT Sagapolutele discerned the gleam of metallic objects that looked like the tips of loose bullets inside the pouch. SGT Sagapolutele asked Faumuina about the contents of the pouch, and Faumuina did not reply.
At this point, SGT Sagapolutele was concerned that Faumuina was armed and potentially dangerous, and he reached to pat down the waist pouch. Faumuina twisted away as if to prevent the contact. SGT Sagapolutele was still able to touch the pouch and felt a hard object which he believed could be a handgun. SGT Sagapolutele then held Faumuina, opened the pouch, and discovered the loaded handgun. Loose bullets for the handgun were also in the pouch.
Faumuina seeks to suppress the gun and bullets on the ground that the search was not lawful because SGT Sagapolutele did not have reasonable suspicion sufficient to justify the search. Faumuina also wants his statements to the police suppressed.
Discussion
Mirroring its federal counterpart in the Fourth Amendment, Article 1, Section 5 of the Revised Constitution of American Samoa states that “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated . . . .” Under the rule of exclusion, items seized illegally may be suppressed upon a timely motion. Weeks v. United States, 232 U.S. 383 (1914). Moreover, Article 1, Section 5 of the Revised Constitution of American Samoa explicitly states that “[e]vidence obtained in violation of this section shall not be admitted in any court.” This search was not made pursuant to a warrant and was therefore unlawful unless an exception exists to justify it. We agree with ASG that a “Terry stop and frisk” constitutes such an exception in this case.
In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court defined a “frisk” as “measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” The Court determined that a frisk constitutes a search within the meaning of the Fourth Amendment that must be “limited to that which is necessary for the discovery of 'weapons which might be used to harm the officer or others nearby.”
*102SGT Sagapolutele’s search falls within this definition of a frisk. He opened Faumuina’s waist pouch to determine whether Faumuina was carrying a handgun, and if so, to neutralize any threat the firearm might pose. SGT Sagapolutele only searched Faumuina’s pouch in which the handgun and bullets were in fact located. The search was thus limited to discovering weapons on Faumuina’s person.
Justification for a frisk requires two elements. First, the search must be reasonably related in scope to the circumstances. SGT Sagapolutele searched only the waist pouch in which he believed a handgun and ammunition to be located, satisfying this element. Second, the search must be justified at its inception.
Two factors play into whether a frisk is justified at its inception. First, the law enforcement officer must be rightfully in the presence of the party frisked. This is not an issue here, because Faumuina put himself in the presence of the officer. Second, the law enforcement officer must suspect that the party may be armed and dangerous. Use of the word may indicates that this standard is quite low, and considerable deference is afforded law enforcement authorities in this determination. As stated in United States v. Montoya de Hernandez, 473 U.S. 531, 541 (1985), this standard is a good deal lower than that of probable cause. The Supreme Court further elucidated this standard in Ybarra v. Illinois, 444 U.S. 85 (1979), wherein it stated that Terry “created an exception to the requirement of probable cause” whereby “a law enforcement officer, for his own protection and safety, may conduct a pat-down to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted.”
SGT Sagapolutele’s testimony indicated a reásonable suspicion that Faumuina was armed, having seen what appeared to be a handgun in Faumuina’s waist pouch. From the circumstances of the day in question, SGT Sagapolutele could also have reasonably believed Faumuina to be dangerous. Faumuina was displeased at having poker machines seized earlier at the Fagatogo market place and persistently followed the team carrying out the inspections for other illegal machines.
Even if Faumuina was acting innocently, however, a frisk was justified in this instance. People v. Prochilo, 363 N.E.2d 1380 (1977) held that a frisk was proper where the outline of a gun was visible through clothing, because an arrest and search on probable cause of carrying a concealed weapon could have been made. The situation here is almost identical, because SGT Sagapolutele could have immediately arrested and searched Faumuina on suspicion of carrying a concealed firearm in violation of A.S.C.A § 46.4203 (a)(1). In addition, the court in United States v. $84,000 U.S. Currency, 717 F.2d 1090 (7th Cir. 1983) held that a law enforcement officer could properly frisk a person voluntarily *103accompanying him to the airport upon observing a suspicious bulge in that person’s clothing. In this case, Faumuina was in the presence of the police officers voluntarily and the handgun made an obvious bulge in Faumuina’s waist pouch.
The importance accorded police safety by the courts also argues for the lawfulness of the search. According to the Supreme Court, “the State’s proffered justification — the safety of the officer — is' both legitimate and weighty. ‘Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.’” Pennsylvania v. Mimms, 434 U.S. 106 (1977). This policy rationale applies equally here. There is no justification for requiring SGT Sagapolutele to risk his life and the lives of his fellow officer and civilian team members because he could not be sure whether Faumuina was displeased enough to use the handgun.
Faumuina also rhetorically questions the purpose or legitimacy of the second patdown the police officers made of his person after Faumuina was arrested and handcuffed. The officers were justified in this patdown because a protective search is permissible after the suspect is handcuffed. “[I]t is by no means impossible for a handcuffed person to obtain and use a weapon concealed on his person,” and the suspect may in any event be able to access a weapon concealed on his person once the handcuffs are removed. United States v. Sanders, 994 F.2d 200 (5th Cir. 1993).
Lastly, we point out that the evidence adduced on the motion to suppress evidence did not address any statements made by Faumuina in response to custodial interrogation. The only evidence of any relevant statement was Faumuina’s silence when he was asked about the contents of his waist pouch. Clearly, he was not in custody at this juncture. The interpretative weight of this evidence may be debated, but not its admissibility.
Conclusion and Order
For the foregoing reasons, we conclude that the seizure of the handgun and ammunition in this case was proper as a "Terry stop and frisk,” and that no custodial statements were involved. Therefore, Faumunia’s motion to suppress the physical evidence and statements is denied.
It is so ordered.
Poe Faumuina is the same person as Alfred Faumuina, the named defendant in CR No. 8-97. Identity is not at issue in either case. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486611/ | ORDER DENYING PLAINTIFF’S MOTION FOR JOINDER
On August 23, 1999, plaintiff American Samoa Government (“ASG”) filed a motion to join this case with ASG v. Mekiafa Tupua, Jr., CR No. *10535-99. A hearing on the issue was held on September 23, 1999, at which counsel for all parties were present. Mekiafa Tupua, Jr. (“Tupua”) expressed no objection to joinder, whereas Amosa Ropati (“Ropati”) opposed joinder. We directed briefing from the parties. On October 1, 1999, Ropati filed his Memorandum in Opposition to Motion to Join and ASG responded with a Reply on October 5, 1999, whereupon the matter was taken under advisement. After weighing the arguments for and against separate trials, we deny the motion for joinder
We first examine whether Tupua’s declaration will be admissible at trial for use against him or codefendant Ropati. Tupua’s statement does not constitute hearsay when used against him because the declaration is not being offered to prove the truth of the matter it asserts, namely, that his uncle was in fact taking a large risk in shipping the drags through the mail. Rather, the remark is being offered to prove Tupua’s knowledge that he was picking up drags. Tupua’s declaration being offered to prove his state of mind, it is not covered by T.C.R.Ev. 801, and is admissible against Tupua.
ASG argues that Tupua’s statement is not hearsay with respect to Ropati. Under a strictly literal truth of the matter asserted standard, it is not, because ASG is not using the statement to prove that Ropati was in fact “taking a big chance bringing methamphetamine to the Territory by post.” Rather, ASG seeks to introduce this statement against Ropati in order to prove identity, namely, that Ropati was the intended recipient of the package. Notwithstanding the literal meaning of the remark, its use to implicate Ropati constitutes hearsay because the remark effectively asserts that Ropati was the intended recipient of the package, and it is being offered by ASG to prove the truth of this matter. Thus, the declaration, as hearsay, cannot be used against Ropati unless it comes under an exception to the hearsay rule. T.C.R.Ev. 802.
Plaintiff ASG appears to assert that Tupua’s declaration can be admitted against Ropati under the co-conspirator exception to the hearsay rale. T.C.R.Ev. 801(d)(2)(E). This argument fails because the declaration was not offered “in furtherance of the conspiracy.” At the time Tupua allegedly made the declaration, he was not seeking assistance from witness Lilio, nor was he attempting to involve Lilio in the conspiracy. Rather, his words were a casual admission and idle conversation, neither of which can be used against a co-conspirator. See U.S. v. Layton, 720 F.2d 548 (9th Cir. 1983); U.S. v. Shores, 33 F.3d 438 (4th Cir. 1994). Tupua’s remark to Lilio is thus inadmissible hearsay with respect to Ropati. Tupua’s declaration thus being admissible against him, but not Ropati, we turn to the issue of whether Ropati would be denied a fair trial if the cases are joined.
Judicial economy speaks for joinder. The defendants have been *106arraigned on similar charges, and are allegedly part qf the same conspiracy to import and sell illegal drags. The prosecution also presents a good case for joinder. The trials of both defendants require the same witnesses and exhibits, and ASG may be calling an off-island witness from San Francisco, California for both cases.
To facilitate joinder, ASG proposes that the jury be instructed to limit consideration of Tupua’s remarks to the case against Tupua. Granted, the integrity of the judicial process depends on “the almost invariable assumption of the law that jurors follow their instructions,” Richardson v. Marsh, 481 U.S. 200, 206 (1987), nevertheless, when right to confrontation problems may be caused by hearsay statements of a codefendant to be used- in joint trial, a court must consider remedial action, including severance. U.S. v. Truslow, 530 F.2d 257 (1975). Persuasive authority holds that separate trials are essential when incriminating out-of-court statements of a codefendant, admissible against the declarant but not against codefendant, would be presented in evidence. U.S. v. Corbin Farm Service, 444 F.Supp. 510 (1978).
In weighing the matter before us, we conclude that Ropati’s rights should supersede considerations of economy. ASG’s needs may be accommodated to some extent. To alleviate the burden to ASG presented by separate trials, the court, for example, is open to scheduling the two trials during the same week, but separately, to minimize the expense and logistical difficulties involved with off-island witnesses. This option can be further explored at the forthcoming pretrial conference.
Order
For the foregoing reasons, plaintiffs joinder motion is hereby denied. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486615/ | ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS MOTION TO COMPEL
On September 11, 1998, Defendants filed a motion to compel discovery. Defendants claimed that questions propounded during oral examination were repeatedly met with plaintiff George Berleme’s (“Berleme”) failure to respond, evasive or incomplete responses, and objections and instructions not to answer from the his attorney. ■ Berleme, on the other hand, contends that the questions asked were argumentative, meant to *120harass, annoy and or embarrass the deponent. Berleme further contends that many of the questions asked are more appropriately directed towards defendant Peter Miller. Counsel for both parties were present for oral argument.
The purpose of pre-trial discovery is to (1) narrow and clarify the basic issues between the parties and (2) to ascertain facts or information relating to those issues in advance of trial. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). As such, the scope of pre-trial discovery is broad, allowing any matter, not privileged, which is relevant to the subject matter involved in the pending action whether it relates to the claim or defense of the party seeking discovery or the claims of any other party. T.C.R.C.P. 26(b)(1).
Although discovery is broad, deposition testimony is “usually limited to a factual examination, and may not be used to examine as to argumentative matters, or to elicit conclusions, opinions, or opinion evidence and must not require an expert opinion, or require inferences which may be drawn from facts.” 27 C.J.S. Discovery § 32(1) (1959 & Supp. 1985). Objections are also proper as to the form of a question, especially if it assumes a predicate. See T.C.R.C.P. 32(d)(3)(B) (objections to the form of the question which “might be obviated, removed, or cured if promptly presented” are waived if not seasonably made before or during the deposition).
The motion to compel is granted as to questions 3, 4, 7, 8, 9, and 10. Under T.C.R.C.P. 37(a)(3), an evasive or incomplete answer is treated as a failure to answer. For question 3, Berleme failed to provide what factual basis he has, if any, to support his allegation that defendant Peter Miller, the Branch Manager of defendant National Pacific Insurance Limited (“NPI”), was unfit to perform his job and should be removed. Berleme claimed that the facts are “legal facts that I have no knowledge of.” (Berleme Depo. 38:3-4). Berleme is compelled to answer the facts underlying the legal basis of his claim.
Similarly, Berleme was evasive as to question 4. Defendants provided a clear question in asking, “Are there any other false statements that you believe are the basis for [your] complaint for fraud.” The response in this instance was “You have to be more specific” and “You’ll have to see my lawyer because if I say no, you’d go with — -if I say yes, you’d say what are they so see my lawyer, please. Jennifer, you must remember As the purpose of the discovery is to ascertain the underlying facts relating to the claims alleged, Berleme was clearly being evasive, and reluctant to provide the facts of his claim. Berleme is compelled to answer this question and any follow-up questions related to the answers given in response.
*121As to questions 7, 8, 9, and 10, the objection was that the question called for a legal conclusion. However, Defendants’ attorney specifically requested the facts supporting the legal claim. Facts upon which the general allegations of a complaint are found and the claimed relationship between such facts are not properly objectionable on the ground that they call for legal conclusions. See B-H Transp. Co. v. Atlantic & Pacific Tea Co., 44 F.R.D. 436, 438-9 (N.D.N.Y. 1968). In addition, a defendant is generally entitled to discover information that clarifies allegations of a complaint and to determine what proof supports those allegations. Brown v. Waco Fire & Casualty Co., 73 F.R.D. 297 (S.D. Miss. 1976). These questions, therefore, must be answered.
In certain situations, Berleme requested that Defendants’ attorney ask or see his attorney. The court in Brown v. Waco Fire & Cas. Corn., 73 F.R.D. 297 (S.D. Miss. 1976) held that Defendants were “entitled to have [plaintiffs] attorney answer any question propounded to him relating to anything contained in the complaint which they do not understand and want amplified and are entitled to have him tell them what proof he has, if any, to support such charges.” 73 F.R.D. at 298-99. If Defendants so desire,- they may request that Berleme’s attorney be deposed if Berleme is unable to provide the relevant facts of his allegations. See Shelton v. American Motors, 805 F.2d 1323 (8th Cir. 1986).
The motion to compel is denied as to the following questions: 1, 2, 5, 6, 11, 12, 13. In question 1, Defendants request the court compel Berleme to answer the question, “Because you don’t trust anybody to make a kind gesture, you’re calling him a liar?” This question is cleárly an argumentative question which serves no purpose in providing additional discovery information.1
The motion to compel is also denied as to question 2. Despite Defendants’ assertion that Berleme failed to answer the question as to what led him to believe that he had a right to challenge defendant NPI’s decisions about hiring and firing employees, Berleme did in fact provide information regarding the basis for these claims. Rather than saying “see my lawyer” or refusing to answer the question as asserted by Defendants, Berleme responded forthrightly by stating:
He showed me, in his second meeting, that he was doing something which wasn’t quite legal by offering me to pay me, which he didn’t have to do, and out of what he called a *122dummy account which I don’t know the law. But I do know— I have a feeling when something is right or wrong. And that was the reason why I took — I did not accept his two thousand, but I took it to my solicitor.
(Berleme Depo. 34:14-15). In addition to the above, Berleme also based Ids belief, that he could challenge NPI’s decision, on the advice of his attorney. (Berleme Depo. 36:7).
As to question 5, Defendants asked, “With that information, you didn’t give up anything, you didn’t settle the case, you didn’t go out and commit to a certain court of action at the hospital or incur expenses as a result of your conversations with them; isn’t that true?” (Berleme Depo. 41:7-10). Berleme’s counsel objected to the form of the question. Objections to the form of the question are proper objections for deposition, especially if it presumes a predicate. See T.C.R.C.P. . 32(d)(3)(B). Rather than filing a motion to compel, counsel could have easily rephrased the question to elicit the information desired.
For question 11, Berleme’s attorney objected to the question based on the attorney-client privilege. Defendants’ attorney, however, failed to elicit information from Berleme’s attorney articulating the basic rationale for asserting the privilege. The court, therefore, is without a record to permit a meaningful evaluation of the privilege claim. The motion to compel for this question, therefore, is denied.
In regards to question 12 on Exhibit 2, Berleme is not required to answer questions which are not within his knowledge. See Besly-Welles Corp. v. Balax, Inc., 43 F.R.D. 368, 371 (E.D. Wis. 1968) (limits exist as to what a witness should be required to do in order to prepare to answer oral questions). Berleme admitted forthrightly that he had not seen Exhibit 2 before. Berleme, therefore, rightfully refused to answer any questions on Exhibit 2 posed by Defendants’ persistent attorney.
Lastly, the court notes that resolving discovery disputes is viewed as an unfortunate use of the court’s resources. In future, this court expects a good faith effort by both parties in resolving discovery disputes before court action.
The parties will bear the burden of their own costs:
It is so ordered.
Under Shelton, opposing counsel may be deposed when (1) no other means exists to obtain the desired information; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to case preparation. 805 F.2d at 1327. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486618/ | OPINION AND ORDER
Introduction
On February 16, 1992, plaintiff Virginia Gibbons (“Gibbons”), was sexually assaulted by Maosi Fuala'au (“Fuala'au”) after he escaped from the American Samoa Government Correctional Facility in Tafuna (“Correctional Facility”) where he was serving a prison sentence for the earlier sexual assault of another Government Housing tenant. Gibbons brought suit for toft damages under two theories of liability. She alleges the American Samoa Government (“ASG”) breached its duty of care in its capacity as prison custodian and breached its duty of care in its capacity as her landlord.
Gibbons and ASG each brought motions for summary judgment prior to trial, both of which were denied (on October 8, 1997 and July 20, 1998, respectively). On January 5, 1998, Gibbons made a motion to bifurcate trial proceedings regarding the issues of liability and damages, and that motion was granted on February 2, 1998. Accordingly, trial on the issue of ASG’s liability took place from July 27 to July 29, 1998, with counsel present for both parties.
Facts
At the time of the attack, Gibbons was a contract specialist hired to work for ASG. She lived in the Government Housing Tract in Tafuna (“Government Housing”) which is owned and operated by ASG and which is where ASG houses most of its contract employees. On February 16, 1992 at about 1:00 a.m., Fuala'au cut through the “rat wire” and screen in the living room of Gibbons’ house. He sexually assaulted Gibbons throughout a period of several hours and stole a VCR machine as he left the house.
Only horns before the attack, Fuala'au had escaped from the Correctional Facility where he was serving a 5-year term for the rape of Phyllis McCullum, another former Government Housing resident. Officers at the Correctional Facility discovered Fuala'au missing during *138a bed-check at about 1:00 a.m. Officers looked for him at the Correctional Facility and, at about 2:30 a.m., began searching the Government Housing complex for him. He was found wandering toward his aunt’s house in the Government Housing complex just before 4:00 am that morning. On July 16, 1992, Fuala'au admitted to raping Gibbons, and the court sentenced Fuala'au to 60 years in prison.
Discussion
For each of Gibbons’ two theories for recovery — ASG as custodian of the Correctional Facility and as landlord of the Government Housing complex — ASG both denies liability and claims governmental tort immunity. We will examine each of these theories in turn, first determining whether the government is immune from tort liability and then, if necessary, proceeding on to assess whether ASG is in fact liable for Gibbons’ injuries.
A. ASG as Custodian of the Correctional Facility
1. Governmental Tort Immunity
Governmental immunity was originally established at common law to shield the king from the imputation of wrongdoing but, not surprisingly, this concept has largely been abolished in modem times. In American Samoa, the doctrine has been supplanted by the Government Tort Liability Act, A.S.C.A. § 43.1203. Under that statute, ASG has voluntarily waived immunity for most tortious acts of misfeasance and nonfeasance, and retains its common law shield against liability only in certain particular circumstances. In this case, the exception which ASG claims should be applied may be found at A.S.C.A. § 43.1203(b)(2), which retains governmental immunity for “any claim based upon the exercise or performance of, or the failure to exercise or perform, a discretionary function or duty of an officer or employee.” The rationale for this exception, of course, is to prevent judicial second-guessing of decisions which are properly within the purview of the executive.
With only this very basic statutory language to serve as a starting point, then, it is therefore left to the courts to determine what sorts of activities properly constitute “discretionary functions” within the meaning of the statute. Fortunately, this jurisdiction is not without precedent on the issue. In the seminal case of Savage v. American Samoa Government, 1 A.S.R.2d 102, 105-06 (Trial Div. 1983), this court drew a distinction between activity that occurs at the executive or planning level and that which occurs at the “operational” level, holding that the former was immune under the discretionary function exception, while the latter remained subject to potential tort liability. Citing Hansen v. City of St. Paul, 214 N.W.2d 346 (Minn. 1974). See also Breed v. Shaner, 562 *139P.2d 436, 442 (Haw. 1977) (holding, the state liable for activities that were operational in nature and which did not involve “broad policy factors”).
Were we to confine our discussion to the Savage case and apply the traditional “planning level” versus “operational level” distinction, the day-to-day decisions involved with running a prison presumably would be found to be operational in nature and would therefore lose their cloak of governmental immunity. However, after reviewing recent developments in this area of the law in other jurisdictions, we are persuaded to reject the rigidity of the Savage holding with respect to this issue and instead follow the somewhat more flexible approach outlined by the United States Supreme Court in United States v. Gaubert, 499 U.S. 315 (1991).
In interpreting the discretionary function exception of the Federal Tort Claims Act — a provision nearly identical to A S.C.A. § 43.1203(b)(2)— the Gaubert court expressly rejected the notion that activities at the operational level by definition could never involve discretion:
A discretionary act is one that involves choice or judgment; there is nothing in that description that refers exclusively to policy-making or planning functions. Day-to-day management of banking affairs, like the management of other businesses, regularly requires judgment as to which of a range of permissible courses is the wisest. Discretionary conduct is not confined to the policy or planning level.
Id. at 325, quoting United States v. Yang Airlines, 467 U.S. 797 (1984). In our view, the Supreme Court’s approach comports much more closely with the plain language of the statute, requiring a straightforward inquiry into whether the conduct in question involved “discretion” of the sort which the Act was designed to protect. As the Court stated in Gaubert, “[i]t is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.” Id.
With this framework in mind, we now turn to the specific facts of this case regarding the government’s custodianship of the Correctional Facility. As the ASG correctly points out, certain decisions by prison administrators, alleged to be negligent by Gibbons, did indeed involve elements of discretion and are properly immune from tort liability under A.S.C.A. § 43.1203(b)(2). These include, for example, the critical decision to move Fuala'au to the lower-security Juvenile Unit, as well as major administrative decisions such as how often bed checks would be conducted or precisely how many lights and guards should have been posted in which positions around the prison grounds. Although they *140occur at the “operational level,” these matters involve basic issues of resource allocation and require close judgment calls which are best left to those trained in the field of penal administration. Within reason, prison officials must be given appropriate leeway to run the Correctional Facility as they deem to be most effective given their available resources; in short, the court will not seize our inevitable advantage of perfect hindsight to hold such decisions unreasonable after the fact.
However, while prison officials are free under A.S.C.A. § 43.1203(b)(2) to use their judgment on most of the daily decisions regarding the administration of the Correctional Facility, there is no discretion involved in ASG’s activities — or non-activities, as the case may be — pertaining to basic security measures. Most notably, the decision to not close off a hole in the cell wall large enough for an inmate to escape through does not require the exercise of discretion; failure to secure the perimeter gate presumably does not involve a decision at all, much less one requiring any degree of judgment; and generally maintaining the Correctional Facility in such a sorry state that even the warden referred to security as “a joke” cannot be shielded from immunity as the product of governmental discretion. Unlike those decisions which involve some element of judgment, these most basic acts and omissions require none, and they therefore are not exempt from liability under the “discretionary function” exception to the Government Tort Liability Act.
As a result of this analysis, then, certain ASG decisions held to be immune may therefore not be considered in the following discussion of liability (e.g., the decision regarding Fuala'au’s assignment to the Juvenile Unit, bed check procedures, guard assignments, etc.). Any finding of negligence, therefore, must be predicated on the remaining facts which involve non-discretionary activities.
2. Liability as Prison Custodian
Like any action for negligence, to demonstrate liability in this case plaintiff must prove the standard elements of duty, breach, and cause. The first element, duty, is a straightforward question of law on which there is direct precedent in this jurisdiction. In Rakhshan v. Tuilefano, 18 A.S.R.2d 46, 48 (Trial Div. 1991), the court explicitly identified ASG’s legal obligation to “protect fellow inmates and members of the general public from those whom it has taken within its custody.” Other courts have come to the similar conclusion that, under appropriate circumstances, the government may be held liable for harm done by inmates negligently permitted to escape. See generally 44 A.L.R.3d 899, 901, Liability—Harm by Escaped Prisoner; Webb v. State, 91 So.2d 156 (La. App. 1956).
*141Having established that ASG owed Gibbons a duty, we now turn to the more difficult and fact-intensive issues which tend to be determinative in prison escapee cases. As addressed above in the discussion of governmental immunity, any finding of breach must be the result of those acts which were non-discretionary in nature. In reviewing that subset of facts, we hold that ASG was indeed negligent in its operation of the Correctional Facility. Notwithstanding the fact that the Correctional Facility had been ravaged by Hurricane Val a few months prior to the escape, we find that the failure to secure the walls and fencing of the prison was unreasonable even under these extraordinary circumstances. Moreover, according to the evidence offered by the warden himself, security had been generally lax even prior to Val’s arrival. Inmates negligently had obtained access to alcohol, and Fuala'au himself was intoxicated on the evening in question. Perimeter gates were routinely left unlocked and unguarded. In short, the Correctional Facility’s security and escape record historically had been — and continues to be, for that matter — nothing short of abysmal. Even without regard to those decisions involving the discretion of prison officials, ASG breached its duty of care to Gibbons.
Despite the finding that ASG breached its duty of care, however, recovery may nevertheless be denied if Gibbons’ injuries are not within the scope of the duty breached. See Frank v. Pitre, 341 So.2d 1376 (La. 1977); Green v. State, 91 So.2d 153 (La. 1956). In this type of case, therefore, the key is not merely that the plaintiff be harmed as a result of the negligence, but also that the injury received should be of the type which the duty exists to prevent. The Green case, supra, is illustrative. In Green, the court denied state liability for the escapee’s negligent operation of an automobile since “the breach of the duty and the duty breached were not sufficiently related to the injuries received as to import liability for damage resulting from the breach.” 91 So.2d 153, 155. A prison custodian’s duty to third parties is not to prevent car accidents incidental to escape, but rather to take reasonable precautions to keep criminals confined so that they may not commit further crimes.
Unlike Green, though, the specific facts of this case lean heavily toward finding the ASG liable, and we do so find. In those cases which reject finding liability for a prison custodian, the primary reason cited is often the lack of temporal and geographic proximity between the escape and the post-escape injuries. See Nelson v. Parish of Washington, 805 F.2d 1236 (5th Cir. 1986) (prison custodian found not liable largely because post-escape crime was committed 13 days after the escape and 750 miles from the jail); Reid v. State, 376 So. 2d 977, 978 (La. 1979) (no liability where shooting by escapee occurred 11 days after the escape and 60 miles from the jail). In this case, however, the injuries sustained by Gibbons were inflicted only hours after her attacker’s escape, and in the housing complex immediately adjoining the Correctional Facility’s *142grounds.
Even more importantly, though, upon making his escape Fuala'au proceeded almost immediately to commit the exact same crime — and in the exact same general location — of which he had been convicted three years earlier. The very purpose of his incarceration was to prevent precisely this type of injury to innocent third persons such as Virginia Gibbons, and it was clearly foreseeable that the breach of the prison custodian’s duty of care could result in such a crime. See Geiger v. State, 242 So.2d 606 (La. 1970) (foreseeability that the negligence of the state in permitting prisoner to escape would result in attempted perpetration of crimes against nearby residents is a predicate to liability).
Although the actual crime was different in Webb v. State, the court in that case elaborated on the issue of foreseeability:
An escape is almost always foremost in the mind of a dangerous criminal. It was foreseeable that leaving a dangerous criminal unchecked for hours at night would give him an immediate opportunity to attempt his goal. Also, it was foreseeable that leaving dope and whiskey at his disposal would only increase the probability of an attempted escape.
91 So.2d 156, 162 (La. 1957). Similarly, we find that neglecting to cover huge holes in the Correctional Facility’s walls, leaving the perimeter gates unsecured, allowing alcohol to somehow be introduced into the compound, and generally failing to provide reasonable security measures all constituted negligence which could foreseeably have led to the injuries Gibbons ultimately sustained.
B. ASG as Landlord of the Government Housing Complex
1. Governmental Tort Immunity
The issue of sovereign immunity is much simpler with respect to this claim than that of prison custodian, as we need not even address the issue of whether this governmental conduct is “discretionary” within the meaning of A.S.C.A. § 43.1203(b)(2). As a landlord, ASG receives a pecuniary benefit from its rental housing operation, and is therefore acting in a proprietary capacity.
In the Savage case, supra, the court held that the ASG could not avail itself of sovereign immunity when acting in a proprietary capacity, and specifically identified the rental of housing units to its employees as one such activity. 1 A.S.R.2d 102, 106. See also Baumgardner v. Boston, 23 N.E.2d 121 (Mass. 1939) (no governmental immunity where the government collected trash for a fee); Plaza v. City of San Mateo, 266 *143P.2d 523 (Cal. 1954) (operation of municipal golf course.found to be proprietary in nature). The ASG derives a direct pecuniary benefit through the collection of rent and, as the Savage court further reasoned, it also receives an indirect benefit as it workers “live in the community for the convenience o/the employer." Savage at 106 (emphasis added). We continue to adhere to Savage’s holding that ASG’s operation of the Government Housing complex in Tafuna is proprietary in nature, and ASG therefore may not hide behind the cloak of governmental tort immunity when acting in this capacity.
2. Liability
Without the benefit of sovereign immunity, ASG’s responsibility to its tenants is the same as that of any other landlord, and the guiding principle in these cases is that “landlords have no duty to protect tenants from criminal attack.” Walls v. Oxford Management Co., Inc., 633 A.2d 103, 106. Put another way, “landlords are not insurers that a tenant will be protected at all times.... To impose liability over the mere possibility of a crime occurring is folly.” C.S. v. Sophir, 368 N.W.2d 444, 446-7 (Neb. 1985).
There are important exceptions to this general rule, however. For the instant case, the most significant of these is the principle that liability may be triggered when there exists “clear foreseeability,” even if no causal connection exists with respect to a physical defect of the housing premises. Trentacost v. Brussel, 412 A.2d 436, 438 (N.J. 1980) (obvious criminal activity in tenant’s neighborhood created foreseeability of attack). Gibbons argues, inter alia, that the Government Housing complex’s proximity to the Correctional Facility, coupled with ASG’s knowledge of the prior rape for which Fuala'au was originally incarcerated, created the requisite foreseeability sufficient to impose liability. We disagree.1
*144Those cases which have found foreseeability that a crime would be committed on rental property have typically identified a pattern of crime which includes multiple incidents occurring over a relatively short period of time. In Nallan v. Helmsley-Spear, Inc., for example, foreseeability was established when 107 crimes had been reported in a single apartment building (including 10 against persons) over a 21-month period immediately preceding a shooting there. 407 N.E.2d 451, 519-20 (NY 1980). Similarly, in Kline v. Massachusetts Avenue Apartment Corp., the court recognized “repeated criminal assaults and robberies” on the premises sufficient to give the landlord notice that additional crimes would likely be attempted in the future. 439 F.2d 477, 481 (D.C. Cir. 1970). See also Flood v. Wisconsin Real Estate Inv. Trust, Inc., 497 F.Supp. 320 (D.Kan. 1980).
In the case at bar, however, Gibbons identified only one significant criminal act at the Government Housing complex: the rape committed by Fuala'au three years prior to her own attack. In Sophir, supra, the court was confronted with a similar fact pattern, although the argument for liability was actually much stronger there because the prior assault occurred only two months before the incident at issue in that case. Nevertheless, the court surveyed the relevant caselaw and reached its conclusion:
No cases were found which impose liability on a landlord based on a single prior criminal act perpetrated upon a tenant.. . . Likewise, in the present case there would be no foreseeability, based on one prior assault, upon which to predicate liability.
368 N.W.2d 444, 447 (Neb. 1985) (emphasis in original).
The notion that the Correctional Facility’s proximity to the Government Housing complex makes the latter significantly more prone to violent crime is mere speculation; as presented by Gibbons, the evidence itself shows only a single similar incident which had occurred three years earlier, and we find such a history insufficient to create foreseeability. Although we therefore deny liability on this theory under these particular facts, however, ASG is nevertheless strongly encouraged to take any and all steps to make its rental housing operation as safe as possible.
Order
For the foregoing reasons, ASG is found liable in its capacity as custodian of the Correctional Facility, and not liable in its capacity as *145landlord of the Government Housing complex. As contemplated by our bifurcation order of February 2, 1998, trial on the issue of damages will be set upon appropriate motion.
It is so ordered.
Note that although somewhat related, the two issues of foreseeability in this case are in fact quite distinct. The first, discussed supra at pages 10-II with respect to ASG’s liability as prison custodian, looks from the unique perspective of the Correctional Facility officials. In evaluating the issue, we found it to be reasonably foreseeable that this particular inmate — given his own particular criminal history — would rape again if given the chance.
In this new inquiry as to foreseeability, however, we are now called upon to adopt the perspective of ASG as landlord. For these purposes, we examine a different body of evidence altogether: we look not at the history of any given inmate, but rather at the overall history of crime in the Government Housing tract. Foreseeability in this context presents a more difficult hurdle, as Gibbons must demonstrate foreseeability not only that any given escapee would commit a violent crime of this nature, *144but also that an inmate so inclined would escapé in the first place and even be given the opportunity to do so. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486619/ | ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (COUNT I — BREACH OF CONTRACT)
On December 8, 1998, plaintiff Administrator, United States Small Business Administration (“SBA”) filed a motion for partial judgment on the pleadings and or for summary judgment on the breach of contract claim (Count I) against defendant Amerika Samoa Bank (“ASB”). The motion was heard on March 5, 1999 with counsel for both parties present.
A motion for partial judgment on the pleadings is made under T.C.R.C.P. 12(c). In a motion for judgment on the pleadings, a court may look only at the pleadings. A judgment on the pleadings only has utility when all material allegations of fact are admitted in the pleadings and only questions of law remain.” 5A CHARLES Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1367 (2d ed. 1990 & Supp. 1998). Because this court looked beyond the pleadings, this court treats the motion as one for summary judgment. In a motion for summary judgment, the court may examine “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.” T.C.R.C.P. Rule 56(c).
At issue in this motion for summary judgment on the breach of contract claim is the interpretation of the subordination agreement, specifically, the following paragraph:
SBA does hereby subordinate and does hereby declare to be subordinate to 68% of ASB’s mortgage covering the restaurant building known as Soli & Mark’s Family Restaurant. In no event however, shall this subordination exceed 68% of the principal amount of ASB’s loan to Borrower for One Hundred Eighty-Three Thousand Seven Hundred Five Dollars ($183,705.00) plus interest, fees, or costs applicable to the bank loan or mortgage.
*147Subordination Agreement at 3.
A subordination agreement is to be interpreted according to ordinary contract principles. In re General Homes Corp. 134 B.R. 853, 864 (Bankr. S.D. Tx. 1991) cited in In re Exec Tech Partners, 107 F.3d 677, 681 (8th Cir. 1997). Ordinary contract principles provide that if the language of the contract is plain and unambiguous, the intention expressed and indicated controls, rather than whatever may be claimed to have been the actual intention of the parties. 17A Am Jur.2d Contracts § 337 (2d ed 1991 & Supp. 1998). Where the language is plain and unambiguous, the meaning of a contract should be determined without reference to extrinsic facts or aids. 17A AM.JUR.2D, Contracts § 337.
In this instance, the express intention of the subordination agreement was that SBA subordinated itself to ASB, thereby changing lien priorities with ASE. The subordination agreement, however, did more than change lien priorities. The agreement also subjected the lien priorities to certain restraints. ASB’s lien priority changed to first upon this agreement, but only up to 68% of the original principal loan amount plus interest, fees, or costs applicable to the loan or mortgage. SBA, as the creditor with a second lien priority, was entitled to all or an appropriate portion of the amount exceeding the 68% limitation. ASH, therefore, is contractually allowed to receive no more than 68% of the initial principal loan amount plus applicable interest, fees or costs. As such, the subordination agreement was not a fully performed contract. The allowance of receiving only up to the amount of the 68% limitation remained to be performed.
SBA is further eligible to receive the contractually specified amount from ASH based upon A.S.C.A. § 37.1103. A.S.C.A. § 37.1103 provides:
Mortgage creditors shall be entitled to payment according to the priority of their liens, and not pro rata; and the judgments of foreclosure shall operate to extinguish the liens of subsequent mortgages of the same property, without forcing prior mortgages to their right of recovery. The surplus after payment of the mortgage foreclosed shall be applied pro tanto to the next junior mortgage, and so on to the payment, wholly or in part, of mortgages junior to the one assessed.
The requirement that mortgage creditors be paid according to the priority of their liens is statutorily mandated. SBA, therefore, is entitled to receive its share of the sale price according to A.S.C.A. § 37.1103.
ASH claims that SBA failed to receive funds from the foreclosure sale due to its failure to fully and timely assert its interest as a competing *148lienholder. As a result, ASH asserts that SBA missed its opportunity to collect from Soli Corporation on its debt. Even if SEA missed its opportunity to collect from the Soli Corporation, SBA has not missed its opportunity to collect from ASH as contractually allowed.
The subordination agreement allowed ASH to receive no more than
68% of the principal amount of ASH’s loan to Borrower for One Hundred Eighty-Three Thousand Seven Hundred Five Dollars ($183,705.00) plus interest, fees or costs applicable to the bank loan or mortgage.
SEA’s share, therefore, is calculated as follows:
(1) ASB’s original loan (principal amount of subordination limitation) $183,705.00
(2) Interest to November 9, 1992 $14,803.32
(3) Interest from November 10, 1992 to January 24, 1994 (foreclosure sale date) 31.397.00
(4) Total interest 46,200.32
(5) Fees and costs 9.572.71
(6) Total subordination limitation $239,478.03
(7) Credit Bid $176,254.71
(8) Minus 68% x 239,478.03 162.845.06
(9) Surplus over subordination limitation $13,409.65
SBA wants, in addition, simple interest at the rate of 6% from January 24, 1994 on the amount exceeding the subordination limitation. However, SBA was an intervenor party to this action when the foreclosure sale was conducted, and it then waited five years before instituting this suit against ASH. We consider SBA’s delay in bringing this action to be unduly dilatory. We can, in our discretion, deny prejudgment interest in outlandish situations, including delay in bringing suit. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28, 43 (Trial Div. 1994). Thus, we will not grant any prejudgment interest to SBA.
SBA is entitled to receive $13,409.65 from ASE. Therefore, SBA is granted summary judgment in the sum of $13,409.65 against ASH.
It is so ordered | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486620/ | ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND OTHER REQUESTED RELIEF
On April 12, 1999, a hearing was held in this, matter on eight different motions, with all counsel listed above present. A brief history and description of those motions, in chronological order of filing date, follows:
1. Plaintiff TCW Special Credits, Inc.’s (“TCW”) Motion for Summary Judgment as to Amounts Owed Crew on Trips Nos. 20-26, filed January 21, 1999. In this motion, TCW outlines a history of alleged discovery abuses on the part of Plaintiffs-in-Intervention Michael Datin, et al., (“the Crew”). TCW urges the court to apply T.C.R.C.P 37 to sanction the Crew by finding'any would-be material issues of fact in TCW’s favor and, accordingly, to enter summary judgment for TCW.
2. TCW’s Motion to Quash Notice of Deposition, filed January 21, 1999. TCW seeks to quash the notice of deposition for Raymond Falante, originally noticed for January 20, 1999, with amended notice for January 22, 1999. According to the memorandum filed by the Crew on March 31, 1999, the deposition was renoticed for April 2, 1999, and counsel for TCW agreed to attend. There was no argument on this motion at the April 12, 1999 hearing, and the issue now appears to be moot.
3. TCW’s Motion for Order (1) Directing that Settlement Offers be Communicated by Special Master; and (2) Examining Legal Fees of Crew Counsel, filed February 19, 1999. TCW asserts a conflict of interest between the Crew and its counsel, the Booth Banning firm, expressing concern that settlement offers were not communicated to members of the Crew and that the fee arrangements between the Crew and its counsel are exorbitant and unfair.
*1514. TCW’s Motion for Order Governing Deposition Conduct and for Sanctions For Discovery Misconduct, filed March 12, 1999. Based on conduct which occurred at the February 1, 1999 deposition of Gojko Milisic, TCW seeks sanctions and an order establishing guidelines for future depositions.
5. TCW’s Motion for Approval of Settlements and Assignment of Claims Between TCW, Clipper Oil and Shell Guam, filed March 22, 1999. TCW seeks approval of the settlement reached between these parties on the various trade claims.1
6. TCW’s Second Motion to Quash Notices of Crew Depositions in Italy, filed March 25, 1999. This motion was denied by our order of April 14, 1999, on grounds that the court wished to rule on summary judgment before allowing these depositions to go forward.
7. Defendant Kassandra Z’s (“Kassandra Z”) Motion to Compel, filed March 26, 1999. This motion, requesting an order to compel discovery responses on the personal injury claims, was withdrawn on April 7, 1999.
8. The Crew’s Motion for Order Issuing Reporters Commission and to Allow De Bene Esse Depositions to be Used for Trial, filed March 29, 1999. The Crew seeks approval for de bene esse depositions of the individual members of the Crew.2
Discussion
As noted above, the motions identified in paragraph numbers 2, 6 and 7 above have been effectively resolved. In brief, and to the extent necessary, we now discuss those remaining motions below.
A. TCW’s Motion for Summary Judgment
Summary judgment is appropriate only when the pleadings and supporting papers show “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” T.C.R.C.P. 56; Etimani v. Samoa Packing Co., 19 A.S.R.2d 1, 4 (Trial Div. 1991). In ruling on a summary-judgment motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party’s evidence as true, and draw from such evidence the inferences most favorable to the opposing party. Id.
*152In its motion, TCW requests that the court take the most drastic of steps as a corrective to alleged discovery abuses on the part of the Crew: apply T.C.R.C.P. 37 sanctions to find against the Crew on all issues of material fact, and to enter summary judgment in favor of TCW. Although we share TCW’ s frustration with the status of discovery in this case— indeed, we find both parties to have exhibited an unfortunate lack of cooperation and goodwill throughout this process — we are not prepared to take such extreme measures at this time.
Under Rule 37, the court may impose, inter alia, the following sanctions for failure to comply with a court order:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him ' from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]
T.C.R.C.P. 37(b)(2).
TCW does not purport to seek an outright dismissal or a default judgment, both of which are provided for in subsection (C) above, but rather requests an order pursuant to subsections (A) or (B), finding certain material facts in its favor or refusing to allow the Crew to defend certain claims. Summary judgment would logically follow from that more limited order, however, thereby achieving the same result as a dismissal or default judgment. When deeming certain facts as established is tantamount to a dismissal or default judgment, we will proceed to apply the same standards for application of Rule 37 as we would were TCW directly seeking dismissal of the Crew’s claims. Commodity Futures Trading Comm’n v. Noble Metals Int’l, 61 F.3d 766, 770-772 (9th Cir. 1995), cert. denied (Rule 37 sanctions resulting in grant of summary judgment were reviewed as if court had dismissed claims outright or entered default judgment).3
*153Courts will weigh many different factors in deciding whether to dismiss a case pursuant to Rule 37. As a general principle, policy and due process concerns favor resolution of a case on the merits; accordingly, a dismissal will only be granted as a last resort, and only when less severe sanctions would not be effective. Wouters v. Martin County, Fla., 9 F.3d 924, 934 (11th Cir. 1993) (award of attorney’s fees was less drastic sanction that could have forced compliance with court order); United States for the Use and Benefit of Wiltec Guam v. Kahaluu Constr. Co.., 857 F.2d 600, 605-606 (9th Cir. 1988) (dismissal reversed on appeal when trial court neglected to consider intermediate-level sanctions); F.D.I.C. v. Conner, 20 F.3d 1376 (5th Cir. 1994) (dismissal sanction reversed as abuse of discretion).
In addition, courts have developed other requirements which must also be met before imposing a dismissal sanction, including: a showing of willfulness, bad faith, or substantial fault (National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 640 (1976) (per curiam)); an explicit prior warning from the court that continued noncompliance would result in dismissal (Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir. 1997)); evidence that the moving party had suffered significant prejudice (In re Exxon Valdez, 102 F.3d 429, 433 (9th Cir. 1996)); and, in at least one circuit, proof that the violation of the discovery order was attributable to the client rather than its counsel (F.D.I.C. v. Conner, 20 F.3d 1376, 1380-81 (5th Cir. 1994)).
Although the discovery process in the instant case has been fraught with hostility, intransigence and inappropriate delay, the overall circumstances simply do not rise to the level of those required for dismissal to be proper. Both TCW and the Crew appear to have done their part to thwart the free exchange of information contemplated by Rule 26; nevertheless, without additional information, we are not prepared to say that either party has acted in bad faith. Furthermore, even if the Crew has failed to comply with the court’s discovery orders, there has been no warning that a dismissal sanction might result therefrom, nor do we have any reason to believe that lesser sanctions could not elicit the discovery sought. Finally, this court is not prepared to penalize the individual members of the Crew for transgressions — if any — which occurred through no fault of their own, but rather resulted from the litigation tactics of their counsel.
As nearly a month has elapsed since the April 12, 1999 hearing (and counsel for TCW was apparently served with some supplemental answers to interrogatories on the morning of that hearing), the court cannot properly evaluate the adequacy of discovery at this time. However, if TCW is still not satisfied with the Crew’s responses to certain interrogatories or other discovery requests, then it may bring a more narrowly-tailored motion to address those issues. Summary *154judgment on this basis, however, is denied.
B. TCW’s Motion for Order ('ll Directing that Settlement Offers be Communicated by Special Master: and (2) Examining Legal Fees of Crew Counsel
Although we are mindful of our unique responsibility towards seaman (and, for that matter, other litigants whose circumstances may require some degree of special attention), the court is not prepared to intrude into the relationship between the Crew and its counsel at this time.
Significantly, the Federal Rules of Civil Procedure regarding special masters, Rule 53, has been omitted from the Trial Court Rules of Civil Procedure which govern practice in this jurisdiction. Even were we to follow the federal rules, however, we are not convinced that the “exceptional conditions” which they require have been met in this case, as TCW’s concerns are largely speculative in nature. F.R.C.P. 53(b).
If at any point the members of the Crew have concerns about their treatment by counsel, they have an existing remedy: they remain free to bring suit on their own behalf. Based on the information which has been provided to this court, however, we will not interfere in the attorney-client relationship at this time.
C. TCW’s Motion for Order Governing Deposition Conduct and Sanctions
This motion is also denied. Although we are indeed disturbed by the rancor which characterized the Milisic deposition of February 1 and 2, 1999 — and in particular by the possibly premature termination of TCW’s examination of the deponent — we refuse to impose artificial regulations of conduct beyond those already provided by the Trial Court Rules of Civil Procedure.
We do, however, take this opportunity to issue a warning. Counsel for both the Crew and TCW are experienced attorneys who are well aware of the basic rules and procedures governing the discovery process. Be forewarned that any future allegations of improper practice will be carefully scrutinized, and this court will not hesitate to impose heavy sanctions where appropriate.
Order
For the foregoing reasons, the following orders shall enter: TCW’s Motion for Summary Judgment is DENIED; TCW’s Motion for Order (1) Directing that Settlement Offers be Communicated by Special Master and (2) Examining Legal Fees of Crew Counsel is DENIED; TCW’s
*155Motion for Order Governing Deposition Conduct and for Sanctions For Discovery Misconduct is DENIED.
It is so ordered.
This motion is addressed by separate order.
This motion is addressed by separate order.
We note that, in relevant part, T.C.R.C.P. 37 is identical to its federal counterpart. Because Rule 37 has seen little use in this jurisdiction, we choose to look primarily to the federal courts for guidance in its application | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486621/ | OPINION AND ORDER
On April 9, 1997, plaintiff Mafa Tuika (“Tuika”) filed a complaint for wrongful termination against defendants American Samoa Development Corporation, dba Rainmaker Hotel (“the Rainmaker”), Rimoni Taga'i (“Taga'i”), and Elisa Tuisamatatele (“Tuisamatatele”).
Tuika was employed by the Rainmaker from 1989 to May of 1996. No employment contract was ever signed between Tuika and the Rainmaker. At the time of employment, Tuika received a copy of the Rainmaker’s Operations and procedures Manual (“the Manual”) that, among other matters, delineated the Rainmaker’s polices regarding promotions, transfers, vacations, conduct, hiring, severance, and termination procedures. A subsequent handbook, the Rainmaker’s Employee Handbook (“the Handbook”), was then published and distributed. No procedures regarding termination, however,' were included in the Handbook.
On May 9, 1996, Tuika was presented with a written notice of suspension by the Rainmaker. At the time of her suspension, Tuika was the Rainmaker’s purchasing officer. The suspension was to allow time for an investigation into accusations concerning the contents of three particular containers and irregularities occurring in the Purchasing Office. Tuika was formally terminated on approximately May 21, 1996. The reasons given by Taga'i, the Rainmaker’s controller, included spreading false stories and rumors, dishonesty and stealing, and various failures to perform duties in a satisfactory manner.
The determination of whether Tuika was wrongfully terminated depends initially on whether Tuika’s employment with the Rainmaker is a just cause or an at-will relationship. Both parties agree that a formal written contract was not negotiated and signed by Tuika and the Rainmaker. Rather, the determination of Tuika’s employment relationship depends on whether the Manual or the Handbook justified an employee’s expectation of a just cause firing and subsequent termination procedures.
Tuika has the burden of proving the existence of a contract and all the facts essential to the cause of action. Stiles v. Skylark Meats, Inc., 438 N.W.2d 494, 496 (Neb. 1989). In order to establish a breach of employment contract claim based upon violation of personnel rales, an employee must prove that a personnel manual actually became part of an employment contract and that the terms of the manual were breached. Wagner v. City of Globe, 722 P.2d 250, 254 (Ariz. 1986); see also *158Poklitar v. CBS Inc., 652 F. Supp. 1023, 1029-1030 (S.D.N.Y. 1987).
For these purposes, we find that the Handbook is controlling for determining whether the guidelines justified an expectation of just cause employment. However, even if the Manual created contractual rights, the Handbook superceded (he Manual and modified the terms of employment created by the Manual. See Burton v. Atomic Workers Federal Credit Union, 803 P.2d 518, 520 n.1 (Idaho 1990) (employment manual may modify terms of employment); Sadler v. Basin Elec. Power Co-op., 431 N.W.2d 296, 300 (N.D. 1988) (an original employment contract may be modified or replaced by subsequent unilateral contract in employee handbook)
Upon reviewing relevant case law and the Handbook, we find that the Handbook does not give rise to contractual rights and obligations by employees. Evidence relevant to this decision includes the language of the personnel manual, any representations made by the employer, and the course of dealing between the employee and employee. Wagner, 722 P.2d at 254 (citation omitted). In Palelei v. Star Kist Samoa, 5 A.S.R.2d 162, 166 (Trial Div. 1987), this court found that the handbook then at issue gave way to contractual rights. Among the provisions the court found persuasive were a description of a progressive discipline scheme, a list of transgressions that resulted in immediate dismissal, and the requirement that the employee sign the handbook, indicating that he or she understood the terms set forth. Id. at 166. The progressive discipline scheme was detailed, allowing for counseling by the employee’s supervisor and written notice. The Star Kist handbook also specified which provisions of the discipline scheme would be utilized for each offense, up to the fourth offense. The level of detail included in the Star Kist handbook is sufficient to justify an employee’s expectation of this disciplinary procedure. A combination of all these items resulted in contractual rights. The Rainmaker Handbook simply does not contain this kind of mutual commitments.
Even if the original Manual was not subsequently amended by the Handbook, we find that the Manual also does not give rise to contractual rights. The only element similar to the Star Kist handbook is that the Manual lists violations which subject employees to “disciplinary action up to and including immediate discharge for cause.” Manual at 2. This statement, by itself, does not lead to contractual rights. In addition, the Manual does not specify any progressive discipline procedures or require a signature evidencing understanding of the guidelines. Unlike the Handbook, however, the Manual does provide for certain termination procedures, but they are internal, managerial procedures. For example, the termination procedures simply specify .procedures that the employee’s supervisors must follow for terminating personnel. These procedures do not require the employers to provide the employees with *159notice of termination or allow for a hearing of any kind.
The Handbook is even more vague. All that the Handbook contains are random sentences specifying causes which result in immediate termination. In addition, the Handbook does not provide for any discipline scheme or signatures by the employee. Nor are there any other relevant guidelines which may lead us to conclude that a just-cause employment relationship had been formed. Tuika was an at-will employee. Her employment could be terminated for any reason or even no reason, regardless of the merits of the grounds assigned as the basis of this result. Dodd v. Singer Co., 669 F. Supp. 1079, 1085 (N.D. Ga. 1987); Gilbert v. Tulane Univ., 909 F.2d 125, 126 (5th Cir. 1990); Breen v. Dakota Gear & Joint Co., Inc. 433 N.W.2d 221, 223 (S.D. 1988).
Tuika still contends that, in any event, she was not afforded any opportunity to pursue the Rainmaker’s customarily established post-termination grievance procedure. According to three witnesses, a grievance procedure was commonly available at the Rainmaker in termination situations. Without express terms conveyed to an employee, however, an employer is not legally bound to treat each and every employee in the same fashion based upon past policies and practices. First Atlantic Leasing Corp. v. Tracey, 738 F. Supp. 863, 878 (D.N.J. 1990). Moreover, causes for termination listed in the handbook resulting in immediate dismissal do not require post-termination grievance procedures. See Palelei, 5 A.S.R.2d at 166 (employer’s failure to use progressive discipline sanctions provided in policy manual before terminating plaintiff was not wrongful when plaintiff had apparently committed acts explicitly listed in the manual as justifying immediate dismissal). As set forth in the Handbook, immediate dismissal is warranted for gossiping, spreading rumors, and for stealing. No post-termination grievance procedure, therefore, was required for terminating her employment with the Rainmaker.
We do find, however, that the Rainmaker did not act in good faith in informing Tuika of her termination. On May 26, 1996, Taga'i recommended that the Rainmaker’s Board of Directors approve Tuika’s suspension and dismiss her from her position as purchasing officer. Tuika was not formally notified of her termination. She apparently first learned that she was terminated on August 7, 1998, during the course of discovery proceedings after this lawsuit was commenced. This was more than two years after her suspension on May 9, 1996. Although an employer is not obligated to immediately terminate an employee once a decision to terminate has been made, the employer must act in good faith and notify the employee of this decision in reasonable manner. Connolly v. Montana Board of Labor Appeals, 734 P.2d 1211 1215 (Mont. 1987). The Rainmaker failed to act in good faith by neglecting to provide Tuika with notice of termination in a timely manner.
*160Although the notice of suspension to Tuika informed her that she was suspended indefinitely, we find it incredulous that she would not affirmatively inquire as to her employment status during the lengthy period of time that transpired after her suspension. Tuika attempts to excuse her lack of mitigation on the failure to be informed of her termination status at the Rainmaker. Tuika, however, could and should have inquired into her status after a reasonable period, which we find to be no more than three months after her suspension.
Tuika is not entitled to reinstatement of her employment with the Rainmaker. She is entitled to receive unpaid regular, overtime, and vacation pay. However, there is no basis for her claim to sick pay or severance pay. The amounts that she claimed for her annual salary rate, unpaid overtime compensation, and unpaid vacation pay are uncontroverted under the evidence. Therefore, we conclude that Tuika is entitled to recover $3,525 in back salary (equal to three months), plus $3,000 in overtime compensation and $813.46 in vacation pay (equal to three weeks’ regular pay), subject to required statutory withholdings and any deductions which Tuika had authorized in writing at the time of her termination. She is also entitled to her costs of suit incurred in this action.
Although Taga'i and Tuisamatatele were named defendants, they are not Personally liable to Tuika. Taga'i and Tuisamatatele are both agents of the Rainmaker.1 An agent is not liable for lawful acts done within the scope of his authority for and on behalf of a disclosed principal.” 3 AM.JUR.2D Agency § 302. The act of investigating and terminating Tuika are presumed to be acts done within the scope of authority granted by the Rainmaker to Taga'i and Tuisamatele No allegations by the Rainmaker have been made and no evidence has been presented to the contrary. A principal is solely liable for acts of its agent committed in the course of or within the scope of the agent’s employment. Pollas v. Hardware Wholesalers, Inc., 663 N.E.2d 1188, 1190 (Ind. App. 1996) (citation omitted); Southwest Land Title Co. v. Gemini Financial Co., 752 S.W.2d 5 (Tex. App. Dallas 1988) (citation omitted). Therefore, among the named defendants, the American Samoa Development Corporation, dba Rainmaker Hotel, alone is liable to Tuika and responsible for payment of the judgment.
Judgment shall enter accordingly.
It is so ordered.
A Principal agent relationship exists when the Principal intends that an agent act for him, the agent intends to accept the authority and acts on it, and this intention is expressed either in words or conduct between them. 3 Am Jur.2d Agency § 17 (1986). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486622/ | *162ORDER DENYING MOTION TO DISMISS
On July 15, 1999, petitioners, comprising the members of the immigration Board of American Samoa (the “Board”), filed a petition for declaratory relief against respondent, the Attorney General of American Samoa (the “Attorney General”). The Board alleged, inter alia, that the Attorney General’s legal interpretation of the immigration laws is incorrect, and asked the court to declare that aliens employed by the American Samoan Government must obtain the Board’s approval in order to remain in American Samoa.
The Attorney General has moved to dismiss the Board’s petition arguing that that the court does not have subject matter jurisdiction. The Attorney General characterizes its dispute with the Board as a disagreement between an attorney and its client, and therefore argues that petitioner is seeking a nonjusticiable advisory opinion.
The court has jurisdiction only over actual cases or controversies. In a declaratory relief action, the parties must have “adverse legal interests of sufficient immediacy and reality to warrant issuance of a declaratory judgment.” A.S.C.A. § 43.1101; Sala v. American Samoa Government, 21 A.S.R.2d 50, 56 (1992). In making its determination, the court considers the likelihood that litigation will eventually follow if declaratory relief is not granted. Sala, supra, 21 A.S.R.2d at 56.
In an attorney-client relationship, the attorney advises the client, but it is the client that makes the ultimate decisions on how to proceed. See Model Rules of Professional Conduct Rule 1.2(a); BNA/ABA Lawyer’s Manual on Professional Conduct, Lawyer-Client Relationship, at 31:301-303 (1985). As a result, when the Attorney General acts as counsel to an administrative agency, the agency has discretion as to whether or not to adopt the Attorney General’s opinion. 2 Am. JUR. 2d, Administrative Law § 11 (1994).
Here, in contrast, the Attorney General has the legal authority to prevent the Board from acting because it has the power to enforce and administer the laws pertaining to the status of aliens. A.S.C.A. § 41.0206. Its determination with respect to all immigration law is controlling. A.S.C.A. §§ 41.0206, 41.0614; American Samoa Government v. Falefatu, 17 A.S.R.2d 114, 137 (1990). As a result, the Attorney General did not act in its capacity as the Board’s attorney when it interpreted the Immigration Act as exempting American Samoa Government employees from Immigration Board approval and registration. A decision by this court would therefore not be advisory.
Although litigation may not ensue between the parties if this court does not provide declaratory relief, there is nonetheless a controversy *163between the parties. The Immigration Board followed the Attorney General’s interpretation of the law, as it was legally required to do under A.S.C.A. § 41.0206, and canceled deportation hearings despite its belief that the Attorney General’s interpretation of the law was incorrect. There is a sufficient adverse interest between the parties for the court to determine whether or not the Immigration Board must approve aliens employed by the American Samoa Government before they may enter American Samoa.
The motion to dismiss is, therefore, denied.
A hearing on the merits will be held on December 2, 1999.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486623/ | OPINION AND ORDER
This much-prolonged litigation commenced on July 2, 1996, with the filing of plaintiff TCW Special Credits’ (“TCW”) complaint in rem and in personam for foreclosure of preferred marine mortgages, arising out of TCW’s term loan note from the Kassandra Z Fishing Co., Inc. (“KZFC”), secured by a preferred ship mortgage on the F/V Kassandra Z (“Kassandra Z”), a vessel owned by KZFC. Plaintiffs-in-Intervention Michael Datin, et al. (“the Crew”), members of the crew of the Kassandra Z allegedly owed unpaid wages and other miscellaneous amounts for several past fishing trips, filed a complaint-in-intervention on August 16, 1996 and an amended complaint-in-intervention on October 25, 1996.
Cross-motions for partial summary judgment were filed by the Crew and TCW on August 14, 1997 and February 25, 1998, respectively, and our order denying in part and granting in part the motions for partial summary judgment was issued on July 23, 1998. As will be discussed further below, in that order we outlined, inter alia, our interpretation of *166the “highest rate of wages” language of 46 U.S.C. § 11107.
In the months that followed our order on partial summary judgment, both the Crew and TCW filed several motions relative to the discovery process. In addition, on January 21, 1999, TCW filed a second motion for partial summary judgment as to amounts owed the Crew for certain of the fishing trips at issue. That motion was denied in our order of May 7, 1999, which also addressed many of the other pending motions regarding ongoing discovery disputes.
The trial of this matter was held June 2-4, 1999, with all counsel present. Closing arguments were timely submitted in writing, the last of which was filed on August 31, 1999.
Facts
Although, specific facts relevant to any given legal issue will be discussed throughout the opinion, the basic facts surrounding the operations and arrest of the Kassandra Z are set forth below.
Built in 1982, the Kassandra Z is a steel-hulled tuna purse seiner registered at 1651 gross tons. It was a United States flagged fishing vessel, owned by a Northern Mariana corporation (KZFC), and it operated in the western Pacific Ocean, using ports in Hawaii, Guam, and American Samoa, with an official home in Honolulu, Hawaii.
Like its counterparts throughout the western Pacific tuna fishing industry, the Kassandra Z sailed on individual, consecutively-numbered trips, each of which involved proceeding from port to the prospective fishing grounds, spending several weeks or even months fishing at sea, and then returning to port and off-loading the catch to a cannery. Crews technically were hired for individual trips, but the majority of the officers and crew were rehired from trip to trip. The crew lists therefore remain relatively consistent throughout the time period relevant to this case.
On April 27, 1996, the Kassandra Z docked in American Samoa, at the conclusion of trip number 26. Pursuant to TCW’s complaint for foreclosure of its preferred ship mortgage, the Marshal for the High Court arrested thé vessel on July 2, 1996. The crew members were forced off the ship; most were eventually given tickets to return home, which for most of the Crew was Croatia. The vessel was sold at auction on October 18, 1996, for $6 million, and the proceeds from the sale remain in the court registry.
*167Discussion
A. Relevant Federal Statutes ■
The astounding volume of paper filed in this case notwithstanding, the legal issues involved are not terribly complex. The parties agree that ■ the members of the Crew were never given written fishing agreements in violation of 46 U.S.C. § 10601, which reads:
(a) Before proceeding on a voyage, the master or individual in charge of a fishing vessel, fish processing vessel, or fish tender vessel shall make a fishing agreement in writing with each seaman employed on board if the vessel is—
(1) at least 20 gross tons as measured under section 14502 of this title, or an alternate tonnage measured under section 14302 of this title as prescribed by the Secretary under section 14104 of this title; and
(2) on a voyage from a port in the United States.
(b) The agreement shall be signed also by the owner of the vessel.
(c) The agreement shall—
(1) state the period of effectiveness of the agreement;
(2) include the terms of any wage, share, or other compensation arrangement peculiar to the fishery in which the vessel will be engaged during the period of the agreement; and
(3) include other agreed terms.
In addition, TCW concedes that the terms of 46 U.S.C. § 11107 therefore establish the Crew’s proper remedy:
An engagement of a seaman contrary to a law of the United States is void. A seaman so engaged may leave the service of the véssel at any time and is entitled to recover the highest rate of wages at the port from which the seaman was engaged or the amount agreed to be given the seaman at the time of engagement, whichever is higher.
See also TCW Special Credits v. Chloe Z Fishing Co., Inc., 129 F.3d 1330, 1333 (9th Cir. 1997); Seattle-First Nat’l Bank v. Conaway, 98 F.3d 1195, 1198 (9th Cir. 1996); Bjornsson v. U.S. Dominator, Inc., 863 P.2d 235, 238-40 (Alaska 1993).
Among others and as discussed below, the issues in dispute relate to specific determinations of which trips should be eligible for § 11107 consideration, which rate of “highest wages” should be used for these purposes, and how the Crew’s agreed wages were to be calculated.
*168B. Trips 16-24
As a preliminary matter, we must distinguish certain of the trips made by the Kassandra Z. The Crew is owed at least some amount of unpaid wages for 11 different trips actually completed, namely trips 16-26,1 but the circumstances of the first nine of these trips are vastly different from those of the latter two.
The evidence at trial established that it was the practice of KZFC — and, apparently, throughout the western Pacific tuna fishing industry — to pay wages to its crews in two separate installments. The first was a substantial payment of 90-95% of wages owed, based on the gross amount of fish off-loaded; the second payment, known as a “short check,” would cover any remainder owed after the cannery had an opportunity to determine the quality of the fish and the percentage of “rejects” (i.e., fish which are too small or high in salt content to be fit for consumption). Short checks would typically be issued within a few weeks of off-loading, shortly after the cannery issued its “Final Settlement” detailing the volume of fish accepted and the price paid to the owners. See, e.g., Tr. at 37-38 (testimony of Gojko Milisic), Tr. at 2 34-37 (testimony of George John Copitas).
For trips 25 and 26, the Crew received no wages whatsoever, and those trips are clearly subject to § 11107 analysis. For trips 16-24, however, the Crew was paid — and accepted — the initial large check, and is due only the amounts of the short checks which were never actually tendered, despite repeated assurances from KZFC that they would soon be forthcoming. Under these circumstances, we do not find it appropriate or necessary to go back and retroactively void these substantially-completed contracts.
Although the “Seaman Protection and Relief Act” (of which § 11107 is part) by its very terms seeks to safeguard the wellbeing of seamen like those of the Kassandra Z, we do not believe that it envisions a situation in which crewmembers tacitly acknowledge the terms of their contract by accepting a full 90-95% of their wages, and then turn around and request that those same contracts be declared void in favor of a higher rate of pay. Rather, we believe that the statute primarily contemplates one of two common scenarios: a seaman either is not paid at all (as in trips 25 and 26 herein), or is offered payment at a wage lower than that which he was promised. In the latter case, we believe that the seaman may either accept the wage offered or bring a claim under § 11107; he *169cannot, however, accept the payment and then, several years later, seek to retroactively void the contract and claim significantly higher statutory wages.2
C. “Comparable Seaman”
Although § 11107 states broadly that a seaman is entitled to receive the higher of agreed wages or the “highest rate of wages at the port from which the seaman was engaged,” we held in our July 23, 1998, ruling on partial summary judgment that this provision is properly construed as entitling the wronged seaman not to the highest rate paid any seaman, but rather only to the highest rate of wages of a comparable seaman. Partial Summary Judgment Order, at 9. This mling was consistent with the Ninth Circuit’s mling in TCW Special Credits v. Chloe 3, Inc., which held that such a seaman should be awarded the “highest rate of wages that could be earned by a seaman at the port of hire who has the same rating as the complainant.” 129 F.3d 1330, 1333 (emphasis in original).
When we last reviewed this issue on summary judgment, we were faced with a very specific issue, identical to that which the Ninth Circuit explored in the Chloe 3 case: whether § 11107 entitled the lowliest deckhand, who had agreed wages of approximately $5.00/ton, to be compensated at the captain’s rate of approximately $40.00/ton — an 800% increase. We found that it did not. Now, we confront the related but distinct question, “how comparable is comparable?”
In our prior order, we held that “a comparable seaman includes the elements of rank, job classification, duties, ability, and other similar factors.” Order of July 23, 1998, at 9. There appears to be little debate that for most established positions aboard a tuna boat (captain, engineers, helicopter pilot, deck boss, cook, etc.), these factors will, by definition, all be “comparable” from boat to boat and from fleet to fleet. With respect to the remainder of the Crew, however, who are all officially classified as “deckhands” or “seamen”,3 the parties differ sharply in their interpretations of comparability.
At trial, the Crew sought to establish that these men all form a common *170pool of labor, and that they all perform roughly the same duties on an as-needed basis: they help keep watch for fish, stack the nets, sort and load the fish, assist the engineers, clean the boat, participate in general maintenance, and perform any number of other tasks that may be requested of them by the senior officers. In short, in the Crew’s version of life on a tuna boat, all deckhands are roughly interchangeable and are therefore “comparable” for purposes of calculating § 11107 statutory wages.
TCW, on the other hand, highlights the different skills and the spectrum of ability and experience that characterize the crewmembers within this broad ranking. In accordance with its theory that each crewmember is unique, TCW implies that there are distinct positions within the ranks of the deckhands, such as “fish spotter,” “net stacker” or “assistant skiff boat driver.” Because one deckhand may have been paid only $5.00/ton while another might receive fully double that amount, TCW quite logically concludes that these gradations of pay must relate to factors such as ability and experience, and that “comparability” within this subset of the Crew must therefore take these factors into consideration.
The truth, no doubt, lies somewhere between these two extreme positions. There are indeed significant distinctions in the rate of wages offered deckhands, not only from one ship to another, but even on a single trip of a single vessel. Certainly the reasons for these differences were based at least in part on issues such as ability and seniority, as Fish Captain Gojko Milisic testified. Tr. at 124-26. Similarly, crewmember Goran Uzelac testified that better pay went to those deckhands who routinely performed specialized tasks, such as spotting fish from the mast or operating the winch or driving the skiff boat. Tr. at 313.
At the same time, the facts established at trial also demonstrate that most deckhands performed substantially the same day-to-day tasks, including stacking nets and cork, standing watch, sorting fish, painting, and other such duties not requiring any particular expertise or training. Tr. at 72-73. Even when a deckhand did perform one of the more specialized tasks, such as driving the work boat, upon completion of that single task he would return to those more general' duties shared in common by all seamen. Tr. at 155.
The method of hiring replacement deckhands is particularly illustrative of the interchangeable nature of these workers. As Fish Captain Gojko Milisic testified, when a deckhand was not rehired for any reason, the practice was simply that the “[n]ext seaman just takes the job.” Tr. at 73. Milisic would simply put in a call to have someone flown out from Croatia, or would hire any available seaman off the docks, regardless of whether the deckhand to be replaced happened to have served in a specialized role such as spotting fish or driving the skiff. Id. He typically *171did not even conduct interviews or other screening processes because, in his words, the deckhands were “[j]ust . . . laborers]” and needed “no license, no skill.” Tr. at 74, 128-29. Presumably, one of the remaining deckhands was then shifted into that specialized role, with little or no interruption in the vessel’s fishing activities.
If deckhands were largely interchangeable but were nevertheless paid vastly different wages, there must be some factor or factors to account for those gradations in pay. While we find that experience and abilities may have played a small role in this process, as discussed above, the evidence indicates that the more critical contributing factors were significantly less tangible. For example, Fish Captain Milisic testified that, among other things, he might pay one seaman more than another because “I like the guy” or because he’s not a “trouble maker.” Tr. at 124. Another deckhand aboard Kassandra Z was paid several dollars a ton more than others simply because he was the Fish Captain’s cousin, and Nilisic testified that this practice was not unusual. Tr. at 125-26. Even those factors which one might presume to be easily quantifiable, such as experience, turn out to be more complicated. Total experience as a seaman might be marginally relevant to wages, but loyalty to a particular captain appears to be much more significant. See, e.g., Tr. at 124-26.
Given these factual circumstances, we are left to determine exactly what a seaman must prove in terms of “comparability” in order to make out a successful § 11107 claim. Must he find another seaman, engaged from the same port, who had “good eyes for spotting fish” (however that may be defined), had been with his captain for eight years, and generally was not a “trouble maker”? Must his fellow deckhand track down another seaman who, like him, happened to assist the skiff boat driver — in addition to his multiplicity of other more mundane duties — and was also the son-in-law of the fish captain’s boyhood friend from Croatia?
We think that to place this kind of burden on a seaman would twist the meaning and intent of § 11107, making it impossible for that statute to serve its fundamental purpose, namely, providing a quick and efficient means by which wronged seamen can get the wages owed to them. As the Crew points out in its closing trial brief, seamen traditionally enjoy wards of admiralty status, and the burdens of proof and production allocated to them under various admiralty claims are, accordingly, relatively minimal. See, e.g., Comeaux v. T. L. James & Co., Inc., 702 F.2d 1023, 1024 (5th Cir. 1983) (seaman’s burden of proving cause in Jones Act cases is “featherweight”); Yelverston v. Mobile Laboratories, Inc., 782 F.2d 555, 558 (5th Cir. 1986) (light burden of production in non — statutory maintenance and cure claim); Neathery v. M/V Overseas, 700 F.2d 140 (4th Cir. 1983) (upon establishing statutory conditions, burden shifts to shipowner in 46 U.S.C. § 594 claims). We agree that a *172similarly light burden of proof is properly applied in § 11107 cases, particularly given the nebulous factors which may often comprise a comparability inquiry, as addressed above.
Moreover, there are practical constraints to be considered. Not surprisingly, seamen spend the vast majority of their time at sea; to require a seaman to not only locate his or her “perfect match” — if indeed such a match exists — but also to contact that individual and procure testimony, would essentially render § 11107 useless to the average deckhand. As such, we find that although all deckhands are not per se comparable, the Crew need only make a prima facie showing of comparability in order to make out a § 11107 claim. TCW is then free to rebut by putting forward an alternative seaman who it believes to be more, comparable to the claimant. Unlike crewmembers, shipowners have far greater access to crew lists and other such information, and requiring them to find a more comparable seaman than that proffered by a claimant is reasonable and consistent with the goals of the statute.
The Crew offers three alternative wage measures for purposes of determining the highest wages paid to comparable seamen. Those are the highest rates paid: 1) throughout the western Pacific (including the Gemini fleet); 2) throughout the Zuanich fleet, including the Kassandra Z herself; or 3) the Kassandra Z alone. Although John Copitas did offer extensive testimony regarding the policies and procedures of the Gemini fleet, we are not satisfied that even general comparability has been established with regard to that fleet. Unlike the informal procedures which characterized the hiring of crews on the Zuanich boats, for example, Mr. Copitas testified that all hiring and firing on Gemini fleet ships was coordinated by corporate headquarters located in San Diego, rather than by individual ship captains. Tr. at 222. Moreover, he was completely unable to explain why certain deckhands were paid significantly more than others: “That was up to the office. I had nothing to do with it.” Id. at 243. Without additional information about compensation and how crews on the Gemini boats actually functioned on a day-to-day basis, we decline to find those crews comparable to that of the Kassandra Z.
The Zuanich fleet, however, is another matter.4 The record contains ample testimony to establish that the other vessels within this fleet functioned in essentially the same manner as the Kassandra Z. All vessels in the fleet maintained close contact with each other and functioned as a “Code Group,” regularly advising each other of their *173positions and providing assistance as needed. Tr. at 75. Crewmembers often fished on several of the Zuanich vessels, and their duties were substantially similar on each. Id. at 77-78, 320-21. Also, the authority of the fish captain — presumably including the power to hire and fire crewmembers — was consistent throughout the fleet. Id. at 76-77.
Under these facts, the Crew has established general comparability and has met its light prima .facie burden; because TCW failed to rebut by offering the court more comparable alternatives, we find that each member of the Crew is comparable to his counterparts throughout the Zuanich fleet, within the meaning of the Ninth Circuit’s decision in Chloe Z and this court’s earlier order on partial summary judgment. The exact measure of damages is discussed below.
D. Master and Fish Captain
TCW argues that neither the master nor the fish captain should be permitted to recover statutory wages under § IT 107, on the ground that they were the individuals aboard the Kassandra Z responsible for compliance with federal statutory law, including the § 10601 requirement that written fishing agreements be provided to all crewmembers.
In the Chloe 3 case, Judge Unpingco of the U.S. District Court for Guam ruled on this exact issue, noting that “a master may not seek penalty wages under 46 U.S.C. § 11107 because failure to follow 46 U.S.C. § 10601 is caused primarily by his own failure to provide written agreement. . . . [H]e shall not avail himself of the protection of the statute he was responsible for adherence.” TCW Special Credits v. Chloe 3, Order of June 19, 1998, at 6-7. Judge Unpingco noted the master’s explicit acknowledgment that he was responsible for § 10601 compliance and, accordingly, barred his claim; he did, however, allow the fish captain to make a claim for statutory wages.
By its very terms, § 10601 holds a ship’s master accountable for securing written fishing agreements: “[b]efore proceeding on a voyage, the master or individual in charge of a fishing vessel . . . shall make an [sic] fishing agreement in writing with each seaman employed on board.” Even absent evidence that Master Raymond Falante exercised actual responsibility for such matters about the Kassandra Z, we believe that just as he enjoys the benefits of his status as master, he must also bear the responsibilities of such position. Having failed to ensure compliance with federal statute, he cannot now benefit from that failure by seeking higher penalty wages.
Unlike the Chloe Z, on the Kassandra Z the fish captain also held an official masters license from the United States Coast Guard. In his *174interrogatory responses, Fish Captain Gojko Milisic stated that he “performed all duties required by any Master and Fish Captain,” and his trial testimony confirms that he had broad authority to select and hire his crews. Response to TCW Written Discovery, 1.9(c), dated October 25, 1998; Tr. at 25-26, 40. Given those acknowledged responsibilities and his official status as a master, we agree that Fish Captain Milisic, even while serving in a capacity other than master, should, similarly be barred from pursuing a claim under § 11107.
Both Falante and Milisic therefore will be entitled only to their agreed wages, as set forth more particularly below.
E. The “Tonnage” Calculation
As discussed generally above, seamen are typically paid a particular fixed wage multiplied by the amount of fish caught, as measured in tons. Accordingly, the method of calculating “tonnage” directly and significantly impacts a seaman’s overall compensation, and is therefore an important component of any wage analysis. The Crew argues that, for purposes of determining both agreed wages and § 11107 statutory wages, the proper calculation should be based on gross tonnage, less rejects; TCW maintains that tonnage in both cases should be “adjusted,” with certain percentage reductions for less profitable sizes and species, less rejects.
1. Agreed Wages
The tonnage calculation with respect to agreed wages involves a straightforward inquiry regarding the understanding between the Crew and KZFC management. It is undisputed that the Zuanich companies in fact almost always used adjusted tonnages in calculating wages during the relevant time period. However, the Crew maintains that Fish Captain Gojko Milisic always understood tonnage to mean gross tonnage, and that gross tonnage must therefore be the basis of those agreements because he was the individual responsible for making, the oral wage agreements with the Crew.
We find that this scenario stretches the bounds of credibility, particularly with respect to Captain Milisic’s purported lack of knowledge about tonnage adjustments. As TCW points out, Milisic’s own sworn declaration of April 8, 1997, submitted in support of the Crew’s motion for summary judgment, clearly contradicts his trial testimony. In his declaration, Milisic stated his understanding of how tonnage was calculated:
In addition, the owners of F/V Kassandra Z adjusted the tonnage according to the size of the fish delivered. Sometimes *175we would be paid 100% for all fish above a certain weight, 90% (or 80%) for medium size fish and nothing for small fish under three pounds.
Tr. Ex. 15, ¶ 8. In its reply brief, the Crew argues that this statement reveals only Milisic’s knowledge at the time the declaration was signed, rather than his understanding during the trips themselves. Further passages from the declaration, however, belie that assertion. In the same paragraph, Milisic goes on to state:
This “sliding scale” was changed by the owners regularly depending upon the prices paid for the fish by the canneries. We would never know the exact net adjusted tonnage the company would use in calculating our wages until long after the trip ended.
Id. (Emphasis added.) This statement clearly implies that, while the Crew would not know in advance the precise adjustments for any given trip, they were aware that adjustments would be made based on the cannery receipts. Further, in the next paragraph, Milisic outlines exactly what his agreed wage was to be: “On Trip No. 25, I was to be paid $41.63 per net adjusted ton for the first portion of the trip and $41 for the second.” Id. at ¶ 9. (Emphasis added.) There is no confusing the time frame of these statements.
In addition, even though Milisic at trial generally asserted his lack of prior knowledge about adjustments, he did make several statements to the contrary, confessing that he understood tonnage calculations to be linked to cannery prices, and that he was aware of occasional percentage reductions for medium-sized fish. Tr. at 135, 101. Moreover, common sense suggests that the company’s adjustment practices, which were standard over the entire relevant period,5 must have been known to the Crew. Milisic testified that he frequently discussed compensation matters both with Lawrence Zuanich and with the other fish captains throughout the Zuanich fleet, with whom he was in constant communication. Tr. at 93. He could also estimate with considerable accuracy (often within 1%) the total tonnage of fish taken aboard the Kassandra Z on any given voyage; knowing his promised wage per ton and the amount he actually received for each trip, it is inconceivable that Milisic could not have been aware of the tonnage reductions. Tr. at 93-94.
In addition, the evidence presented at trial indicates that the master of the vessel, Raymond Falante, received at least some documents including *176information about tonnage adjustments. Although he couldn’t recall specific interactions with Mr. Falante or Fish Captain Milisic, Thomas Meneghini testified that it was his practice to forward all payroll calculations — including tonnage adjustments — to each ship’s master, so that any questions or discrepancies regarding compensation could be addressed. Tr. at 397-98. One document, which appears to be a facsimile entitled “Tonnage for Kassandra Z Trip 23 Payroll — Preliminary Settlement,” clearly includes a “% Payable” column indicating tonnage adjustments. Tr. Ex. 53. As indicated on the accompanying covermemo and by a handwritten note on the fax itself, this document was apparently transmitted to Raymond Falanteon or about May 14, 1996.
This document, together with Mr. Meneghini’s testimony, demonstrates by a preponderance of the evidence that Master ‘Raymond Falante was aware of the Zuanich adjustment practices, and that the remainder of the Crew was similarly informed.6 Agreed wages are to be calculated based on adjusted tonnages.
2. Statutory Wages
We also find that the “highest wage” comparison required under § 11107 should be calculated according to adjusted tonnages. As discussed above, we lack sufficient information to make comparisons with the Gemini Fleet.7 The Crew did present some evidence suggesting that gross tonnage payments were made on occasion within the Zuanich fleet, as in the case of the Chloe 3’s trip number 23B. See Tr. at 414-15 (testimony of Thomas Meneghini); Tr. Ex. 55. However, we are not prepared to hold that such an isolated incident within the fleet may serve as the basis for determining the highest wages within the meaning of § 11107.
The record clearly indicates that adjusted tonnages were the standard measures used within the Zuanich fleet. Moreover, the Ninth Circuit expressed the same opinion in the Chloe 3 case:
*177The rate is then multiplied by the adjusted tonnage of fish caught, [fii. 3] “Adjusted tonnage” is gross tonnage of fish caught and off loaded, adjusted for species and size, less cannery rejects.
129 F.3d 1330, 1331 and fii. 3. As we interpret the language of § 11107, “wage” can only mean that amount paid as standard compensation to a comparable seaman, i.e., his regular rate of pay. If gross tonnages were used on a single trip of a single vessel, such payments for that trip should more properly be construed as a bonus of sorts, rather than the standard “wage” earned by those seamen. Viewed in another light, the rare payment to seamen based on gross tonnage could be seen as one of the many variations in the spectrum of “adjustments” that were unpredictable and varied from trip to trip. Generally, adjustments were at least loosely based on the prices paid by the cannery; perhaps the cannery had extremely high demand during that period and the company chose to reward its employees accordingly? At any rate, we find that percentage adjustments based on size and species were standard within the Zuanich fleet, and any § 11107 statutory wages to be awarded must be calculated on that basis.
3. “Rejects”
The final dispute regarding tonnage concerns the issue of “rejects,” generally defined as “fish people cannot eat,” which were understood to be excluded from wage calculations. Tr. at 27. The Crew understood that fish under three pounds are more likely to be unfit for human consumption due to their high salt content and the greater likelihood that they could be smashed in the ship’s storage wells. They also understood that, as a result, those fish fell squarely within the category of “rejects” for which they would not be paid.8 Tr. at 36-37, 96-97, 166, 177, 180, 184, 204, 211, 292, 308-10, 319, 336.
The Crew, however, contends that rejects should not include fish under 3 lbs., on the ground that KZFC was in fact paid for such fish on occasion. Unfortunately, the fact that KZFC may have been paid for these fish does not alter the basic agreement between the company and the Crew. Although a more fair system may have mandated payment to the Crew *178for all fish actually sold to the cannery, there are legitimate‘reasons why KZFC may have chosen to not pay for sub-3 lb. fish. Knowing that these fish were generally far less valuable, it is reasonable to assume that the company utilized such a system to provide an incentive for the Crew to load only larger fish. Or, it may have been administratively more efficient to pay a premium for the more profitable fish and then to pay nothing for the less lucrative smaller fish. Whatever the reason, the evidence at trial overwhelmingly confirms the understanding between the company and the Crew that fish weighing less than 3 lbs. would not be included in the tonnage calculations; we refuse to upset that understanding by retroactively compensating the Crew for fish which they knew to be likely rejects and for which they never expected to be paid.
The analysis with respect to § 11107 statutory wages yields the same result. Although there may have been a single trip for which KZFC did pay for these smaller fish, as Fish Captain Milisic testified, this was not part of the regular wage of any identified “comparable seaman.” Tr. at 134. We find that nonpayment for fish under 3 lbs. was indeed the fleet and industry standard, and therefore decline to include these fish in the adjusted tonnages for purposes of computing § 11107 “highest wages.” Tr. at 96-97 (testimony of Gojko Milisic).
F. Port of Engagement
As noted supra, § 11107 restricts recovery to the highest rate of wages “at the port from which the seaman was engaged.” TCW argues that because each and every member of the Crew did not offer testimony regarding his port of engagement — as well as that of the proffered “comparable seaman” — their claims must necessarily fail.
We agree that there is a technical difference between port of embarkment and port of engagement, as the caselaw cited by TCW indicates. Henry v. S/S Bermuda Star, 863 F.2d 1225, 1237 n.54, 1238 (5th Cir. 1989); Ladzinski v. Sperling Steamship and Trading Corp., 300 F.Supp. 947, 949-950 n.3 (S.D.N.Y. 1969). Those two cases, however, merely establish the port to which a sailor is entitled to be returned upon completion or termination of a contract; neither addresses the issue in the unique context of a § 11107 claim.
In our view, the “highest wage” provision of § 11107, quite simply, seeks to award a wronged seaman the highest wage paid to a comparable seaman from within the same local community of seamen. It is likely that several members of the Crew may have been technically “engaged” in their home country of Croatia, as Fish Captain Milisic testified that he would frequently call his father to hire replacement seamen out of a large pool of available European labor. Tr. at 73. Certainly § 11107 does not *179require that such a seaman, having been promised wages consistent with those of the western Pacific tuna fishing industry where he was actually working, recover only those of the highest paid comparable seaman engaged in Croatia.
More importantly, the evidence at trial demonstrated that seamen were hired on a trip-to-trip basis. Tr. at 41. Although there may be an exception for certain other boats of the Zuanich fleet, each trip of the Kassandra Z and the other Zuanich boats on which Fish Captain Milisic sailed — including the Bonnie and the Jennifer — began and ended in American Samoa or Guam. Tr. at 23-25. Consistent with the light burden afforded seamen as wards of admiralty, we are satisfied that this general showing for all members of the Crew satisfies the purpose and intent of § 11107’s port of engagement provision.
G. Port Wait Time
As discussed briefly above, the Kassandra Z docked at the conclusion of trip number 26 on April 27, 1996, but was not arrested until July 2, more than two months later. During this intervening period, which the Crew identifies as “trip 27,” the Crew was indeed active in maintaining the vessel and preparing it for its next fishing voyage. Tr. at 205. In several conversations with “Cousin John” Zuanich, Goran Milisic was told to keep working on the boat, and was assured that money would be available to permit the next trip to go forward as planned. Tr. at 329. He relayed these assurances to the Crew, who rather than seeking alternative employment on other vessels as they likely would otherwise have done, remained on the Kassandra Z in reliance on those promises from KZFC. Tr. at 329.
Gojko Milisic, similarly, testified that he had received regular assurances from KZFC regarding the company’s financial situation and the prospects of future fishing:
Q: And what did Cousin John Zuanich tell you about the prospects of your ability to leave port on Trip 27?
A: He asked me if I’m going out on the next trip, I say yes, and he said we got problems financially. We get a loan soon. Once we get the loan final, you guys going to get paid and you’re ready to go fishing.
Q: Now the boat came in on April 27, 1996 and she was arrested on July 2, 1996. Between that time period ... on how many occasions did you have conversations with Cousin John Zuanich about keeping the crew on board and getting ready for leaving port on Trip 27?
*180A: At least once a week.
Q: And what in essence did Mr. John Zuanich tell you week after week about what you and the crew of Kassandra Z should do while waiting for the financing to come through for the Z Company?
A Don’t go any place. It’s almost done
Tr. at 66-67. The company’s pitch to the Crew was also confirmed by a fax of June 4, 1996:
I want to assure everyone on board the vessels that we are very close to finalizing the “deal” with our new investors], we are down the stretch as they say in English. I realize all of you in Samoa as well as those in Guam continue to hear the same old storey [sic] week upon week in regard to further solutions and delays. ... A family member will be in Samoa shortly to clear all these matters up and get the vessels out fishing soon, and payrolls will be brought up to date.
Tr. Ex. 14 (emphasis added). For Gojko Milisic, as presumably for many of the rest of the Crew, these assurances resulted in his refusal to seek other employment — or even to accept other unsolicited job offers — so that he would be available when the Kassandra Z was once again ready to sail. Tr. at 68-70.
When a seaman performs work for a vessel in reasonable anticipation of a prospective fishing trip, that seaman is entitled to be compensated for his services on a quantum meruit basis. In Zuguin v. M/V Captain M.J. Souza, for example, we found that a helicopter mechanic was properly due his regular wage for work performed prior to a fishing trip, even though he voluntarily quit his position due to a wage disagreement. 23 A.S.R.2d 7 (Trial Div. 1992). The Crew’s situation in.the instant case is even more compelling. These seamen did not walk off the vessel in dissatisfaction; they were thrown off. The Crew is entitled to be compensated for remaining available to KZFC and for the actual work performed aboard the Kassandra Z following trip number 26.
Judge Unpingco made a similar finding based on quantum meruit in the Chloe Z matter. Memorandum Order of June 19, 1998, at 7-13. In its brief, however, TCW contends that the facts of the Kassandra Z are “radically different” from those in Guam. Brief at 38-39. In particular, TCW points to the shorter port time for the Kassandra Z, the Crew’s freedom to leave that vessel, and the fact that the fish had already been *181unloaded for most of the relevant period.9 None of these circumstances changes the simple fact that the Crew did perform valuable services for KZFC during the time spent in port. We fail to see why protecting unloaded fish in one case should be compensable, while cleaning and otherwise maintaining a vessel so that she would be ready for immediate departure should not. In the same regard, whether work was performed for a single day or for a hundred — and whether performed under circumstances of confinement or not — the Crew is nevertheless entitled to compensation for its services.10
There remain the issues of both the timing and the appropriate calculations of the quantum meruit award. With respect to the first, TCW contends that trip number 26 was not completed until the catch from that trip was actually unloaded and the boat was cleaned on May 21, 1996; the Crew maintains that trip 26 concluded much earlier, that the fish were not promptly unloaded only because the Crew had not been paid its wages due, and that the port wait time award should include the period beginning on April 27, 1996, the date the Kassandra Z returned to port after trip number 26. Whatever the reasons for the delay, the record includes ample evidence to support the common understanding that a fishing trip is only completed when the catch has been off-loaded to the cannery and the vessel has been cleaned. Tr. at 64 (testimony of Fish Captain Gojko Milisic), 213 (testimony of Crewmember Branko Gregov), 195 (testimony of Crewmember Tonci Jusic). We find that the *182proper period for the quantum meruit award runs only from May 21, 1996, the date by which the catch had been unloaded and the ship had been cleaned, and thereby the official conclusion of trip’ number 26. The port wait period concluded on July 2, “1996, the date of arrest, for a total of 43 days. The precise calculation of this award — based on adjusted tonnages and the Crew’s § 11107 statutory wage rates — will be addressed below.
H. Mortgage Seniority
TCW also contends that any award made under § 11107 or for port wait time must be junior to TCW’s lien as ship mortgagee. According to this argument, these awards are akin to a “penalty” and, like punitive damages, may only be assessed against the wrongdoer in personam, rather than in rem against the vessel; in this case, the party responsible for failing to provide written agreements was KZFC, not TCW, which as ship mortgagee was itself innocent of any violations of law.
Despite TCW’s lack of fault vis-a-vis the Crew, however, we do not agree -with the characterization of these awards as punitive. While the statute may very well have a deterrent effect by providing the “highest wages” remedy, its fundamental purpose is not to penalize, but rather to compensate seamen for their wages when a company fails to provide its crew with written fishing agreements. The port wait time award is similarly intended to compensate the Crew for wages due for work already performed. Although Judge Unpingco did not award § 11107 wages, he did find in favor of the crewmembers on their quantum meruit claim, and similarly found that “[sjeamen’s liens for wages take priority over all preferred liens except for expenses of justice while the vessel is in custodia legis." TCW Special Credits v. F/V Chloe Z, Case No. CV 96-00055, Memorandum Order of June 19, 1998, at 14-15, citing Thomas J. Schoenbaum, Admiralty & Maritime Law, § 9-6 (2d ed. 1994). The Crew’s award herein, in its entirety, is thus senior to TCW’s lien.
I. Interest
In this jurisdiction, the decision whether to make an award of prejudgment interest “lies soundly within the court’s discretion.” Interocean Ships, Inc. v. Samoa Gases, 26 A.S.R.2d 28, 43 (Trial Div., 1994), citing Masters v. Transworld Drilling Co., 688 F.2d 1013, 1014 (5th Cir. 1982) (citations omitted) and Orduna S.A. v. Zen-Noh Grain Corp., 913 F. 2d 1149, 1157 (5th Cir. 1990). In this case, a significant sum of money has been accruing interest in the court registry for a period of over three years; we find it appropriate that the parties should share in the value of that interest accmal in proportion to the value of their claims. As such, we award prejudgment interest to the Crew equal to the *183rate at which interest has accrued on the vessel proceeds in the court registry, as discussed in more detail below.
The parties also disagree over the proper date from which any award of prejudgment interest should be calculated. Although we decline to adopt TCW’s characterization of “the Crew’s undue delay in bringing stale claims,” we do find an element of delay which sufficiently persuades us to exercise our discretion in favor of TCW on this matter. Interest shall run from the date of filing of the complaint-in-intervention. TCW Special Credits v. F/V Chloe Z, Case No. CV 96-00055, Memorandum Order of June 19, 1998, at 14.
J. Attorney’s Fees
Finally, the Crew makes a claim for an award of attorney’s fees. Attorney’s fees have aheady been denied on at least one occasion in this matter. In our order denying Crewmembers’ motion for reconsideration, we noted that this jurisdiction follows the “American Rule,” whereby in the absence of statute, contract, or other legal basis to the contrary, each party bears the burden of his or her own attorney’s fees. Order of September 4, 1998, at 2; Samoa v. Gibbons, 3 A.S.R.2d 121, 123 (Trial Div. 1986); Samoa Products, Inc. v. Pereira, 3 A.S.R.2d 45, 46 (Trial Div. 1986); Fou v. Talofa Video, 2 A.S.R.3d 152 (Trial Div. 1998). This general mle applies equally to cases in admiralty, as we confirmed in the matter of Interocean Ships, Inc. v. Samoa Gases: “The prevailing party in an admiralty case is generally not entitled to an award of attorney’s fees, absent statutory authorization.” 26 A.S.R.2d 28, 41-42 (Trial Div. 1994), quoting B.P. North America Trading v. Vessel Panamox Nova, 784 F.2d 975, 977 (9th Cir. 1986).
An exception to the rule that each party bears its own costs exists when a party is found to have acted in “bad faith, vexatiously, wantonly, or for oppressive reasons.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-59 (1975), quoting F.D. Rich Co., Inc. v. United States for Use of Industrial Lumber Co., Inc., 417 U.S. 116, 129 (1974), citing Vaughan v. Atkinson, 269 U.S. 527. The Crew’s request for attorney’s fees is premised largely on TCW’s refusal to pay even admittedly due wages until the resolution of this litigation. This court— and certainly the members of the Crew — certainly would have preferred TCW to have taken such a course, so that at least the minimum prospective recovery could have been available to these individual seamen over three years ago; however, we find no caselaw or statutory provision mandating such an action, and do not find that it rises to the level of “bad faith” necessary to invoke the narrow exception to the American Rule.
*184The Crew does cite authority standing for the proposition that attorney’s fees may be appropriate when a plaintiff has been compelled to hire an attorney to recover wages clearly owed to him. Jose v. M/V Fir Grove, 801 F.Supp. 358, 377 (D. Ore. 1992); Vaughan v. Atkinson, 369 U.S. 527 (1962). Far from “forcing” the Crew to sue to recover their back wages, as the Crew contends, we find that TCW did make good faith settlement offers — which included both interest and repatriation, as well as a small premium — based on full agreed wages. While these offers were for less than the total amount actually recovered herein, they were undeniably reasonable, and were apparently accepted by several other plaintiffs with nearly identical claims also arising out of the failure of the Zuanich company. See TCW’s Trial Brief, filed June 1, 1999, at 2-3; see also TCW Special Credits v. Chloe Z, Order of March 6, 1997, at 24-25.11
The Crew’s request for attorney’s fees is denied.
K. Damages Calculations
In accordance with the above rulings, damages shall be assessed as follows:
1. Trips 16-24 — “Short checks”
Although there were some legitimate questions raised at trial about their accuracy, the document provided by Mr. Thomas Meneghini, Trial Exhibit No. 52, offers the most concise summary of the amounts owed to the Crew for trips 16-24. Based on the testimony at trial, we do make two adjustments herein, namely adding 203.5 tons for trip 17 and 83.9 tons for trip 18. With respect to these trips, Mr. Meneghini admitted that the figures listed in Exhibit 52 were likely inaccurate, and that such adjustments should probably be made in favor of the Crew.12 Tr. at 405-07. Given these changes, the Crew concedes that Meneghini’s figures are *185substantially accurate. Closing Brief at 21. As such, the .short check amounts due shall be:
Trip 16 — 64 tons $9,248.00
Trip 17 — 121.5 tons $14,792.63
Trip 18 — 65.9 tons $8,286.93
Trip 19 — (10 tons) ($1,435.00)
Trip 20 — 26 tons - $3,887.00
Trip 21 — (63 tons) ($8,662.50)
Trip 22 — 147 tons $28,229.12
Trips 23 and 24 — paid in full $0.00
TOTAL DUE FOR TRIPS 16-24: $54,346.18
2. Trip 25 — Agreed wages at adjusted tonnages for the Fish Captain and Master
Similarly, because Exhibit 52 reflects agreed wages at adjusted tonnages, for Fish Captain Milisic and Master Raymond — ineligible for § 11107 relief — we base our awards for trip number 25 on that document, as .well.13
Fish Captain Gojko Milisic $55,479.79
Master Raymond Falante $19,008.29
TOTAL DUE MASTER AND FISH $74,488.08 CAPTAIN FOR TRIP 25:
3. Trips 25 and 26 — § 11107 statutory wages at adjusted tonnages for the remainder of the Crew
The Crew contends, and TCW does not appear to dispute, that the highest paid wages per ton by position within the Zuanich fleet were as follows:
Fish Captain $45.00 (Yolanda Z)14
Master $25.00 (Yolanda Z)15
Chief Engineer $29.00 (Larry Z)16
Assistant Engineer $17.00 (SoleilZ)17
Helicopter Pilot $13.00 (ChloeZ)18
*186Deck Boss $15.00 (KassandraZ)19
Cook $10.50 (KassandraZ)20
Seaman/Deckhands $11.50 (Larry Z)21
Closing Brief, at 12.
Exhibit 23, Tab 20, represents a summary of calculations prepared by the Crew’s economist, Robert Wallace, sets forth .several alternative methods of calculating wages. As discussed at length above, we believe that Column 8 — “Highest Wage Paid by the Fleet Times the Discounted Weight Per Settlement Sheets”. — represents the figure most consistent with the law and the evidence at trial.
That document shows a total of $287,172.60 due to the entire Crew. However, the amounts allocated for that trip to Fish Captain Milisic ($60,912.59) and Master Falante ($32,393.38), already considered above, must be subtracted from that amount, yielding a total award for the rest of the Crew for trip 25 of $193,866.63. See Ex. 23, Tab 23.
However, we recognize that neither Gojko Milisic nor Raymond Falante sailed on trip 26. Because we lack sufficient evidence regarding which other individuals aboard that voyage may have been responsible for § 11107 compliance, we find that all Crew members are eligible to statutory wages, for a total award of $154,411.50. Ex. 23, Tab 20.
$193,866.63 Trip 25
$154,411.50 Trip 26
TOTAL DUE CREW FOR TRIPS 25 AND 26, EXCLUDING FISH CAPTAIN AND MASTER: $348,278.13
4. Port Wait Time — Quantum Meruit Award
The port wait time claim benefits 14 members of the Crew. Fish Captain Gojko Milisic, as with trip 25 above, shall recover only agreed oral wages of $40/ton, while the remaining 13 shall receive the highest rate/ton paid in the Zuanich fleet for their respective positions:22
Datin, Michael Chief Engineer $29.00
Drazic, Dragon Deck Boss $15.00
*187Adams, Thomas Heli. Pilot $13.00-
Jusic, Tonci Seaman $11.50
Natalie, Marjan Seaman $11.50
Natalie, Todor Seaman $11.50
Stracic, Goran Seaman $11.50
Gregov, Branko Seaman $11.50
Narcina, Zarko Seaman $11.50
Vikario, Ante Seaman '$11.50
Skific, Miroslav Seaman $11.50
Fizulic, Ante Seaman $11.50
Skific, Zarko Cook $10.50
As in the Chloe Z matter, we find the appropriate tonnage calculation to be the average daily catch throughout the relevant time period. Memorandum Order of June 19, 1998, at 13. The Crew’s economist, Robert Wallace, calculates the average daily catch, per the settlement sheets, to have been 14.417 adjusted tons. Tr. Ex. 24, at 7. To arrive, at final damages, this figure must be multiplied, by the number of days spent in port after the conclusion of the last trip — in this case 43 days— for a total of 619.93 adjusted tons due for payment. Multiplying this total tonnage by each Crewmember’s wage/ton, as listed above, yields the following total quantum meruit awards:
Milisic, Gojko $24,797.20
Datin, Michael $17,977.97
Drazic, Dragon $9,298.95
Adams, Thomas $8,059.09
Jusic, Tonci $7,129.20
Matufie, Narjan $7,129.20
Matufie, Todor $7,129.20
Stracic, Goran $7,129.20
Gregov, Branko $7,129.20
Marcina, Zarko $7,129.20
Vikario, Ante $7,129.20
Skific, Niroslav $7,129.20
Fizulic, ‘Ante $7,129.20
Skific, Zarko $6,509.27
TOTAL DUE CREW FOR PORT WAIT TIME $130,805.28
5. Repatriation
Thirteen members of the Crew are also entitled to compensation for repatriation expenses. At trial, Thomas Meneghini testified to the company’s repatriation policies, and, the parties appear to have stipulated to the amount of $1,500.00 due each eligible member of the *188Crew. Tr. at 424-26, TCW’s Trial Brief at 15. Although there was some dispute regarding the number of Crewmembers eligible for this award,23 in closing argument TCW did not contest the Crew’s assertion that thirteen seamen are so owed, nor was any evidence presented at trial which would indicate prior payment of repatriation expenses. Tr. at 424.
TOTAL REPATRIATION AWARD: $ 19,500.00
6. Other miscellaneous damages
Also apparently uncontested are amounts owed Goran Milisic for medical bills incurred due to KZFC’s failure to pay insurance premiums ($5,827.48) and for rental car expenses ($800.00). Mr. Milisic testified that payment of insurance costs was promised to him as part of his compensation; the rental car was used primarily for company-related purposes, and was routinely provided by the company while in port. Tr. at 321, 326. We find that these amounts are properly owed to Mr. Milisic.
In addition, Mr. Milisic claims that $3,000 was improperly deducted from his wages for a cash advance following trip .26. At trial, Mr. Milisic testified that he only received $1,500, and that this money was not kept by him personally, but rather was disbursed among the Crew. Tr. at 326. On this sparse record, we find that we lack sufficient evidence to award Mr. Milisic reimbursement for this deduction. By a preponderance of the evidence we find that a cash advance was likely paid; if such monies were distributed by Mr. Milisic to other members of the Crew, then his claim should properly be directed towards his fellow shipmates rather than KZFC.24
Finally, at trial Mr. Neneghini conceded that Raymond Falante was owed the fish captain’s wage for Í80 tons caught while he served in that capacity during a portion of trip number 23. Tr. at 150, 424-25. We agree. However, as with Goran Milisic’s cash advance claim, the record does not support a finding that this money is owed by the company. In fact, Exhibit 53 appears to indicate that full payment for these tons was made to Fish Captain Gojko Milisic, and that Falante’s remedy should be collection from Milisic: “As per the telephone conversation I had with [the payroll accountant], Raymond [Falante] would have to contact Gojko [Milisic] to get his share of the fish that he caught as captain.”
*189Page two of that exhibit similarly includes a handwritten note, which Mr. Neneghini identified as having been written by Lawrence Zuanich,: indicating that he still had to “put 180 tons jfrom Gojco [sic] to you. ” Id:, Tr. at 399. Although we agree that Mr. Falante should be compensated at a rate of $40/ton, it remains unclear to the court what money, if any, has already been paid to him or to Gojko Milisic for these 180 tons. As such, we decline to make an award for Mr. Falante on this cláim.
Medical Expenses $5,827.48
Rental Car . $800.00
TOTAL MISCELLANEOUS
DAMAGES: $6,627.48
7. Pre-Interest Total
The base amount owed to the Crew, prior to adding interest due, is as follows:
Short Checks (Trips 16 — 24) $54,346.18
Trips 25 and 26 (Fish Captain/Master) $74,488.08
Trips 25 and 26 (Remainder of Crew) $348,278.13
Port Walt Time $130,805.28
Repatriation $19,500.00
Miscellaneous damages $6,627.48
TOTAL AMOUNT OWED TO THE CREW PRE-INTEREST: $634,045.15
8. Interest
The amount originally deposited with the court registry as the vessel’s sale, less appropriate custodia legis fees and other expenses, was $5,860,185.59. The proceeds’ on deposit with the registry of the court as of October 18, 1999, is $6,595,749.24, yielding therefore interest in the amount of $735,563.65. Rather than attempting to calculate and compound a monthly rate of interest, we simply find that the Crew was owed $634,045.15 out of the original deposit of $5,860,185.59, and are therefore entitled to 10.82% of interest accrued thereon as of the date of, this order. ' The Crew’s 10.82% of interest equals $79,587.99, bringing their total award to approximately $713,633.14. Less the Marshal’s *190Auction Fee of $90,015.00 payable to the American Samoa Government, the total amount therefore remaining on deposit with the registry of the court as of date hereof is $5,792,101.10
Order
For the foregoing reasons, the Crew shall have judgment in the sum of $713,633.14, payable from the funds on deposit with the registry of the court. The sum of $90,015.00, being auction fees, shall also be paid to the American Samoa Government from the funds on deposit with the registry of court. The balance of $5,792,101.10 shall remain in the court’s registry for further disposition.
It is so ordered.
The Crew also makes a claim for what they term “trip number 27,” related to the time which the Crew spent in port awaiting clearance to sail on their next fishing trip. This issue will be addressed separately below.
We further note that, when administered correctly and fairly, the short check system worked primarily to the benefit of the Crew, allowing them to receive the vast majority of their wages almost immediately upon return to port. The alternative, which the owners could as easily have practiced, would have been to wait until the Final Settlement statements were released to make any payment at all.
These two terms are used interchangeably to refer to all crewmembers below the rank of deck boss, who generally perform a multitude of tasks aboard the vessel.
The Zuanich fleet consisted of up to twelve purse seiners, all of which were managed by Lawrence Zuanich and certain members of his family (most notably, two individuals commonly identified as “Brother John” and “Cousin John”).
Thomas Meneghini, who served as General Manager of the Zuanich operations, testified that adjustments were made at least as far back as 1993, the date of the earliest records which he had reviewed. Tr. at 401.
Given any worker’ s natural interest in compensation issues and, in particular, the close quarters of the working environment aboard a fishing vessel such as the Kassandra Z, the knowledge of the fish captain and the master are sufficient to convince us that the rest of the crewmembers understood their wages to be based upon an adjusted tonnage calculation.
Even if we were to consider the Gemini fleet for purposes of establishing the “comparable seaman,” however, it would be unfair to apply the wage/ton of one ship and the tonnage calculation system of another. TCW argues, quite rightly, that one company may choose to pay its seamen based on gross tonnage, but could then reduce the wage per ton accordingly to result in the same — or even reduced — net wage.
There exists a minor disagreement regarding whether the common definition of rejects included fish “3 lbs. and under” or fish only “under 3 lbs.” Based on these and other transcript passages cited herein, we find that the weight of the testimony supports the latter conclusion. Fish weighing exactly 3 lbs. were understood generally by the Crew to be included in their wage calculations, while only those under 3 lbs. were known to be excluded.
When the Chloe Z came into port, that crew was apparently confined to the vessel for a full 96 days, and the fish were never unloaded prior to the date of arrest.
Moreover, although the facts were indeed slightly different in Guam, Judge Unpingco does make a compelling argument which applies equally to the Kassandra Z:
A fully manned boat, ready to embark on a voyage, was invaluable to a fishing venture desperately seeking cash flow. The release of these men would mean that Chloe Z Fishing Company, Inc. would have to go to the time, trouble and expense of re-manning the vessel. The crew was primarily from Croatia. It would have taken weeks or months to have the boat manned from this source, and would have cost tens of thousands of dollars. In sum, the Chloe Z Fishing Company, Inc. received tangible benefits including a maintained and serviced vessel. . . and a cash savings that could easily exceed $100,000.00. Furthermore, it received the intangible benefit of greater bargaining power against its many creditors, each desperate to recoup losses, and presumably prepared to place hope that the next fish catch would provide the badly needed cash to make the debtor solvent again.
Memorandum Order, at 12.
Indeed, these settlement offers exceeded those offered by the U.S. Department of Commerce, itself a holder of senior mortgages on six Zuanich boats. TCW’s Trial Brief, at 3.
Mr. Meneghini did later hedge on these admissions, stating that he could not be sure of the errors until he had been afforded an opportunity to review the full records. Tr. at 421. In the absence of further evidence, however, we are willing to give the Crew the benefit of the doubt and award them credit for those missing tons accordingly:
Exhibit 52 reflects an overpayment of 82 tons on trip 17. Subtracting this amount from the 203.5 tons still owing, the Crew ‘shall be paid on 121.5 tons for that trip.
Exhibit 52 reflects an overpayment of 18 tons for trip 18. Subtracting this amount from the 83.9 tons still owing, the Crew shall be paid on 65.9 tons for that trip.
Neither Milisic nor Falante sailed on trip number 26, but agreed wages will also serve as the basis for these individuals’ recovery in quantum meruit, as discussed below.
Exhibit 57, Tr. at 416.
Exhibit 60, Tr. at 419.
Exhibit 58, Tr. at 418.
Exhibit 62, Tr. at 419.
Exhibit 63, Tr. at 420.
Exhibit 12, Tr. at 62.
Exhibit 3, Tr. at 47.
Exhibit 58, Tr. at 419.
See notes 15-21, supra.
TCW stipulates to payment only for those Crewmembers who actually returned home following trip number 26 and who have not already been paid. Tr. at 426.
In distributing the total monies received as a result of this order, the Crew is also free to compensate Mr. Milisic for this amount as it may deem appropriate. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486625/ | OPINION AND ORDER
On October 12, 1999, plaintiffs Soonafai Tiumalu and Fuatau Ali'ipule (“Plaintiffs”) filed a complaint seeking injunctive relief directing defendants to refrain from preventing Plaintiffs from returning to work. Plaintiffs also sought a Temporary Restraining Order and preliminary injunctive relief. Defendants filed a cross motion to dismiss the complaint.
A hearing was held on November 9, 1999. The parties appeared with counsel except defendant Lutu Tenari, the President of the Senate, who *196appeared under subpoena but did not wish to defend as he sided with Plaintiffs. At the hearing, the defendants represented by counsel Thompson stipulated to the facts alleged in Plaintiffs’ complaint.
Facts
As the facts in this matter are uncontested, we take the following facts relevant to the motion before us from Plaintiffs’ complaint. Plaintiffs were previously employed as Legislative Financial Analysts for the Legislature of American Samoa. They were suspended for three months on May 5, 1999, on the recommendation of the House Investigative Committee, and then terminated on July 23, 1999, at the direction of the Speaker of the House of Representatives, defendant Aina Saoluaga Nua, and Senate President Pro Tempore, defendant Tuilefano Vaela'a. Plaintiffs contend that this termination “had no basis in fact or law” and was accomplished without procedural due process and that as a result, Plaintiffs have suffered serious financial difficulties.
Defendants, on the other hand, move to dismiss the complaint pursuant to T.C.R.C.P. 12(b)(6), for failure to state a claim upon which relief can be granted. Defendants assert that the pleadings do not provide a legal theory upon which Plaintiffs can seek relief.
Discussion
Plaintiffs’ claim may be discerned in paragraph 17 of their complaint, wherein it is asserted that plaintiffs were “illegally terminated.” In more familiar terms, Plaintiffs are alleging wrongful discharge or termination.
In examining this claim, the court first notes that the complaint alleges no facts upon which to sustain wrongful termination actions against defendants Lutu Tenari, the House Investigative Committee and ‘its chairperson Malaetasi Togafau. Nowhere in the complaint or the hearing testimony did Plaintiffs assert that these three defendants caused the alleged wrongful termination. While the Committee may have provided the impetus for the firings, it was the House Speaker and the Senate President Pro Tempore who terminated Plaintiffs’ employment. Furthermore, naming Lutu Tenari as a defendant is baffling, to say the least, as he rehired, rather than fired, Plaintiffs. Thus, the court finds that these three defendants, Lutu Tenari, the House Investigative Committee, and Malaetasi Togafau, were improperly named in the complaint and, therefore, dismiss Plaintiffs’ action against them.
Having determined that Plaintiffs assert a claim of wrongful termination, it remains to be seen whether this claim can support the requested equitable relief against the remaining defendants. In short, it cannot. The proper remedy for wrongful termination is damages at law, *197not an injunction in equity. This legal principle is black letter law and the rule in countless other jurisdictions. See RESTATEMENT (SECOND) OF Agency: Wrongful Discharge § 455; 82 Am Jur.2d § 246; Billiot v. Toups Marine Transport, Inc., 465 F.Supp. 1265 (D.C.La. 1979); Nassau Sports v. Peters, 352 F.Supp. 870 (D.C.N.Y. 1972); Boise Cascade Intern, Inc. v. Northern Minnesota Pulpwood Producers Ass’n, 294 F.Supp. 1015 (D.C. Minn. 1968); Novak v. Commonwealth, 523 A.2d 318 (Pa. 1987); Mosely v. De Moya, 497 So.2d 696 (Fla. Dist. Ct. App. 1986).
Furthermore, as stated by this court, “the most distinguishing prerequisite of permanent injunctive relief is the inadequacy of a remedy at law, usually in the form of money damages.” Thompson v. Fetalaiga, 24 A.S.R.2d 127, 132 (Land & Titles Div. 1993). Plaintiffs allege only monetary injuries resulting from loss of their salaries. Notwithstanding their conclusory assertions of irreparable injury, these injuries are precisely the type that damages may effectively cure.
In sinn, Plaintiffs have alleged no claim upon which an injunction can issue, for two reasons. First, damages are adequate to compensate Plaintiffs for their lost income in this case, thus precluding injunctive relief. Second, in the employment context, damages are the only remedy to which they are entitled. For both of these reasons, Plaintiffs have failed to state a claim upon which the requested relief can be granted.
Order
For the foregoing reasons, and pursuant to T.C.R.C.P. 12(b)(6), the complaint is dismissed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486626/ | Counsel Tautai Aviata F. Fa'alevao is the territorial Public Defender. He seeks leave to represent plaintiff on a pro bono basis in this private law suit. As Public Defender, however, counsel is subject to the following statutory restriction:
The Public Defender shall devote full time to the performance of his duties and shall not engage in the private practice of law.
A.S.C.A. § 4.0320(d).
*199It would seem at first blush that the most straightforward reading of the enactment is that “private practice” in this context means any practice other than in one’s official capacity as Public Defender. Counsel, however, urges an interpretation of the enactment so as not to shut the door on his eligibility to participate in pro bono work.
As a threshold matter, “[i]t is the duty of public officers to refrain from outside activities which interfere with the proper discharge of their duties. Within reasonable limits, subject to the limitation that it may not abridge any man’s constitutional rights, the legislature has power to ascertain and declare what activities are inconsistent with the proper performance of public duties.” (53A AM JUR 2d, Public Officers and Employees, § 320.
On the other hand, pro bono service, including charitable organization representation, is consistent with the highest traditions of the legal profession. Indeed, Rule 6.1 of the ABA Model Rules of Professional Conduct (1983), adopted in this jurisdiction, reads:
A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service of charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support or organizations that provide legal services to persons of limited means.
This laudable public goal of the profession, however, cannot detract from the very clear statutory goal of ensuring that the Public Defenders’ duties and responsibilities are not comprised because of sojourns into non-public defender areas of work. The representation of indigent criminal defendants is, after all, a governmental responsibility of constitutional dimensions.
Faithful to the statute’s public aims, but in the spirit of encouraging pro bono and public service generally, the Court believes that the statute can be construed to allow such outside activities by the Public Defender when such activities 1) do not present a conflict of interest of any kind; and 2) do not interfere with official government duties.1
*200In furtherance of these premises, the following order will therefore enter,
Leave is granted to the Public Defender, for this case only, to continue pro bono representation of plaintiff upon the following terms:
1. Counsel shall certify with the court by filing an affidavit averring that his pro bono duties in this matter shall not compromise his primary responsibilities to his office as public defender.
2. Counsel shall further certify that he has permission from his . supervisor, the Governor, to undertake this pro bono service.
3. Counsel shall further take leave from his official duties, supplying copies of approved leave applications, when engaged in his pro bono activities during normal government work hours.
It is so ordered.
Cf. Cal. Gov’t Code § 27705:
[T]he public defender shall devote all his time to the duties of his office and shall not engage in the practice of law except in the capacity of public defender (emphasis added).
Unlike A.S.C.A. § 4.0320(d), California’s more restrictive statutory language clearly excludes pro bono work, prohibiting all practice of law “except in the capacity of public defender.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486629/ | ORDER DENYING MOTION FOR RECONSIDERATION OR NEW TRIAL
Procedural History
The court’s opinion and order deciding the first trial phase of these consolidated actions was entered on February 5, 1999. The opinion and order holds that the land within the bane Fe'a resurvey is the individually *216owned land of bane Fe'a’s estate, subject to the rights of-bane Fe'a’s successors in interest. On February 17, 1999, Timu Levale (“Timu”), on behalf of the Timu Family, filed a motion for reconsideration or new trial. On March 24, 1999, a hearing was held on this motion, attended by counsel Asaua Fuimaono, David P. Vargas, and Charles V. Ala'ilima.
On April 6, 1999, we directed counsel to submit written briefs within 60 days on the issue of whether the jurisdictional 10-day period for the motion runs from the entry date of the first trial phase or from the announcement of the judgment in the second trial phase. Counsel Fuimaono, Vargas, Ala'ilima, and Afoa L. Su’esu'e Lutu, submitted briefs to the court. However, only counsel Afoa addressed the issue of real concern to the court. Despite this general briefing failure, we have resolved this issue in Timu’s favor.
Discussion
We hold that Timu’s motion for reconsideration or new trial is ripe for decision. The judgment in the first trial phase resolved an ultimate issue — that the land at issue was owned by the late bane Fe’a, and now bane Fe'a’s estate, as individually owned land, subject to the rights of bane Fe'a’s successors in interest. This question having been determined in favor of bane Fe'a’s estate, we reasonably expect that the estate and bane Fe'a’s successors in interest will diligently work to resolve most, if not all, their respective rights and obligations without the court’s assistance. In numerous jurisdictions, a decision is final for purposes of appeal if it effectively ends litigation on the merits and leaves little for the court to do but execute the judgment. See United States v. Alabama, 828 F.2d 1532 (11th Cir. 1987); Peterson v. Lidner, 765 F.2d 698 (7th Cir. 1985). The first trial phase in this case dealt with this kind of central issue. The motion is therefore timely.
Deciding the motion for reconsideration or new trial at this point in the proceedings also satisfies the purpose behind waiting for a final judgment before appeal, as described in Williams v. Mumford, 511 F.2d 363 (D.C. Cir. 1975). Ruling on the motion now offers the advantage of expediting the final decision as to the ownership of the land at issue. Until the final decision on this issue is made, justice is effectively delayed for the ultimate prevailing party. Furthermore, piecemeal review will not be an obstacle in this case, because the conclusion of the first trial phase will essentially control the results of any subsequent proceedings through the doctrine of issue preclusion. In sum, the circumstances of this case overwhelmingly favor present resolution of the motion for reconsideration or new trial with respect to the judgment in the first trial phase.
We next turn to whether Timu met the time requirement for filing the *217motion. A.S.C.A. § 43.0802(a) states that a motion for new trial “shall be filed within 10 days after the announcement of the judgment . . . .” In Pal Air International, Inc. v. Samoa Aviation, Inc., 1 A.S.R.3d 1 (App. Div. 1997), the court held that T.C.R.C.P. 6(a) controls the calculation of the 10-day period. Under this mle, Timu filed his motion in the nick of time. The first trial phase judgment was announced when it was entered on February 5, 1999. Rule 6(a) states in part that for purposes of computing the 10-day period, “the day of the act, event, or default from which the designated period of time begins to run shall not be included.” Thus, the 10-day period began running the following day, February 6, 1999. The tenth day was February 15, 1999, a public holiday this year. Under Rule 6(a), the period was therefore extended to February 16, 1999, the day when Timu filed his motion for reconsideration or new trial with the court.
Ioane Fe'a’s estate argues that Timu’s filing was incomplete until February 17, 1999 when Timu noticed the parties of the motion and hearing on the motion, and was thus untimely filed. However, A.S.C.A. § 43.0802(a) only requires that a motion for new trial be filed within the 10-day period. It does not mention service of notice of the motion or the hearing on the motion-or, for that matter, filing a supporting memorandum of points and authorities on the substantive issues raised. Thus, Timu satisfied the plain language of the statute by filing his motion on February 16, 1999, the last day of the 10-day period.
Notice of the motion and hearing, as well as written arguments on the issues presented, are essential to supply opposing parties and the court with ample time and material with which to prepare for the hearing on the motion. However, bane Fe'a’s estate does not contend, and we do not presume, that Timu deprived any party of due process or other rights by noticing the motion and hearing one day after the motion was filed.
Lastly, having considered the counsel's arguments on the merits of the issues involved, we turn to the substance of Timu’s motion for reconsideration or new trial. In short, Timu raises issues that were properly and adequately addressed by our opinion and order of February 5, 1999. Thus, we will deny the motion without further elaboration on these issues.
Order
Timu’s motion for reconsideration or new trial is deified.
It is so ordered | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486630/ | PARTIAL SUMMARY JUDGMENT
This controversy arises out of objections to the offer of claimant Avalogo Taylor (“Taylor”) to register certain land as his individually owned land. The court now has objectors’ motion for summary judgment under advisement for decision.
Procedural Chronology
This action was commenced by the Territorial Registrar’s referral of the dispute for judicial determination on October 7, 1998. On the following day, the clerk of the court issued notice of the proceeding to the parties. On November 10, 1998, all 15 objectors filed a statement of their claim with respect. On January 19, 1998, they submitted a copy of the jurisdictional Certificate of Irreconcilable Dispute issued by the Secretary of Samoan Affairs and moved to set a trial date. On March 5, 1999, we scheduled the trial on July 8, 1999.
On February 23, 1999, however, objectors applied for a preliminary injunction to stop Taylor from further construction of a building on the land. On March 23, 1999, Taylor submitted his opposition to the applications which also constituted the first statement of his claim with respect to the land. At the hearing on the application on March 25, 1999, objectors’ counsel and Taylor’s then counsel, Katopau T. Ainu'u (“Ainu’u”), advised the court that the parties were working on a stipulated preliminary injunction.
*220On July 8, 1999, upon both counsel’s request, we continued the trial to July 30, 1999. However, on July 12, 1999, we allowed Ainu’u to withdraw as counsel, with Taylor’s consent. Then, on July 23, 1999, objectors moved for summary judgment that would dismiss the action and require removal of the building under construction. The hearing on this motion was scheduled on July 30, 1999 to coincide with the existing trial date.
On July 30, 1999, to afford Taylor opportunity to retain new counsel, we continued the trial and summary judgment hearing to September 3, 1999. We were also advised the building under construction was substantially completed. Since the anticipated preliminary injunction by stipulation was not forthcoming, and Taylor claimed that he was unaware of this proposal, we enjoined Taylor from further construction on the land. This preliminary injunction was entered in writing on August 4, 1999.
Taylor retained his present counsel and, on August 30, 1999, fried his affidavit and points and authorities opposing summary judgment, along with a formal answer to objectors’ statement of their claim with respect to the land. We heard the summary judgment motion and vacated the trial date on September 3, 1999 and have considered the parties’ affidavits and arguments on the motion, along with the other relevant documents of record.
Facts
The land at issue (“the land”), named “Alatutu'i,” consists of approximately 6.62 acres located in the Village of Tafuna. The land lies immediately adjacent to and southwest of the intersection of the public roads identified on the survey of the land, DWG No. 17-13-97, as the “Airport Road,” which leads to the Pago Pago International Airport to the south, and the “Fagaima-Fonoti Road,” which leads to main part of the village to the west.
Taylor requested a survey of the land as his individually owned land. On September 27, 1997, Sale Taylor, as the pulenu'u of the Village of Tafuna, and Laina Laina, Jr., as the surveyor, signed the Surveyor and Pulenu'u Certificate, which confirmed the pulenu'u gave public oral notice in the Village of Tafuna at a meeting of the chiefs of the village of the time and place of the intended survey of the land. The survey was completed in October 1997. The surveyor certified by the Certificate and on the survey that the survey conformed with the statutory and regulatory requirements for conducting surveys. On October 14, 1997, the Manager of the American Samoa Government’s Survey Branch made the same certification and approved the survey for registration.
*221On October 15, 1997, Fagaima Taylor (“Fagaima’), as the sa 'o (or “head chief’) of the Fagaima family, authorized Taylor, in writing, to survey and register the land as his individually owned land. This document states that Fagaima and Taylor are brothers. This transaction was not presented to the Land Commission for its recommendation of approval or disapproval by the Governor of American Samoa. The Governor did not approve the transaction.
We also have in evidence a document, dated November 15, 1986 and recorded with the Territorial Registrar on November 17, 1986, separating a house, which is or is to be erected, from underlying land in Tafuna. This separation agreement was signed by “Faga'ima A. Taylor,” as the sa 'o of the Fagaima family, for the benefit of “Tulafono Fagaima Solaita,” as the building owner, for the purpose of owning the house free and clear of any claim of the family or its members. At this point, the identity of the parties to and the exact location of the land affected by this separation agreement are not clearly established.
On October 21, 1997, Taylor filed with the Territorial Registrar his offer to have the land for registered as his individually owned land. Notice of the proposed registration was posted at the courthouse and at two public places in the Village of Tafuna from October 23 through December 23, 1997, a total of 61 days, and was published in the Samoa News, a local newspaper, once each 30 days during this period. The clerk of this court, the pulenu 'u of Tafuna, and the business manager of the newspaper, respectively, attested to the postings and publishing.
All 15 objectors named above timely filed objections to the registration within the notice period. On December 24, 1997, the Territorial Registrar submitted the proposed registration to the Secretary of Samoan Affairs for dispute resolution proceedings. The Secretary held two hearings of the parties and unsuccessfully attempted to resolve the controversy. The Secretary issued the Certificate of Irreconcilable Dispute on May 14, 1998, and the Registrar referred the controversy to this court for judicial determination on October 7, 1998.
Objectors’ application of February 23, 1999 for a preliminary injunction to enjoin Taylor from further construction on the land is supported by an affidavit signed by objector Tulafono Fagaima Solaita (“Solaita”). Solaita alleges in the affidavit that Taylor is constructing a building on the land, that the land is the Fagaima family’s communal land and was assigned to other family members, and that a court order is necessary to prevent further construction and forestall physical confrontation between the parties.
Solaita’s affidavit also supports objectors’ motion for summary judgment of July 23, 1999. He states in. this affidavit that he is a blood *222member of the Fagaima family, that the land is the Fagailna family’s communal land and was so adjudicated by this court' in 1970; and that Taylor failed to follow the requisite statutory procedures for land alienation. With respect to this affidavit, we take judicial notice of Taylor v. Fagaima Family, 4 A.S.R. 19 (Land & Titles Div. 1970) and the file of that action, LT No. 1150-1970: The land adjudicated as the Fagaima family’s communal land in that action encompasses the land in this action.
Taylor’s affidavit opposing the summary judgment motion states that he is a member of the Fagaima family, that his claim to the land as his individually owned land and construction of the building on the land was authorized by the sa'o, that he and his immediate family have continuously lived on the land since they cleared the land in 1946, that he is unaware of any assignments of the land to others by the sa 'o, that his immediate family has occupied the land exclusive of any of the objectors, and that he has not attempted to alienate any of the Fagaima family’s communal land. Taylor admits that in 1970 this court determined that the land was the Fagaima family’s communal land.
Discussion
Summary judgment is appropriate when there is ‘no genuine issue as to any material fact” and “the moving party is entitled to judgment as'a matter of law.’ T.C.R.C.P. 56(c). The court must view the pleadings and supporting papers in the light most favorable to the non-moving party. Amerika Samoa Bank v. United Parcel Service, 25 A.S.R.2d 159, 161 (Trial Div. 1994); Ah Mai v. American Samoa Gov’t, 11 A.S.R.2d 133, 136 (Trial Div. 1989).
If only part of the case is appropriate for summary adjudication, the court may grant partial summary judgment in an order specifying the facts that appear without substantial controversy. T.C.R.C.P. 56(d); Deimer v. Cincinnati Sub-Zero Products, 990 F.2d 342, 345 (7th Cir. 1993) (granting partial summary judgment on facts not in issue). The term partial summary judgment is somewhat of a misnomer, since it is not really a final judgment but only an interlocutory order determining certain facts. See In re Air Crash Disaster Near Warsaw, Poland, 979 F. Supp. 164, 167 (E.D.N.Y. 1997). However, the term is widely used. In a partial summary judgment, certain facts are deemed established,' and trial then proceeds without further adjudication of these facts. T.C.R.C.P. 56(d).
The objectors are entitled to a partial summary judgment on the land registration issue. Taylor’s offer to register the land at issue as his individually owned land must be rejected. First, and foremeost, Taylor admits that the land is the Fagaima family’s communal land.
*223In addition to his present admission, Taylor acknowledges that this court adjudicated the same land to be the Fagaima family’s communal land in Taylor v. Fagaima Family, 4 A.S.R. 19 (Land & Titles Div. 1970).1 In that case, another member of the Taylor family offered to register the land as his individually owned land. The Fagaima sa 'o then in office and the claimant’s brother, for himself and his other siblings; objected to the registration. Taylor also recognizes that the immediate Taylor family, himself included, are members of the Fagaima family.. Thus, involving the same land ownership issue and essential privity of parties, the holding of Taylor v. Fagaima in 1970 that the land then at issue is the Fagaima family’s communal land is clearly res judicata as, to the communal nature and ownership of the land in this action. Taulaga M. v. Patea S., 4 A.S.R.2d 186 (Land & Titles Div. 1987) (land title action barred by res judicata when ownership of same tract was previously adjudicated between same families over same issues and was resolved in a final judgment)
Taylor’s present effort to register the Fagaima family’s communal land as individually owned land is fatally deficient in two particulars. First, Taylor requested the survey of the land at issue. However, only the sa 'o can lawfully request a survey of a family’s communal land; the sa'o cannot delegate that authority. Galea'i v. Ma'ae, 2 A.S.R.2d 4 (App. Div. 1983) (applying the unequivocal wording of A.S.C.A. § 37.0102(d)).
Second, Fagaima and Taylor failed to comply with the , land alienation laws. “[Ijnstruments affecting the title, ownership... or possession . of [communal] land” . must be submitted to the Land Commission . for its study and recommendation of approval or disapproval by the Governor. A.S.C.A. § 37.0203(a), (b). The Land Commission has the duty “to endeavor to prevent improvident alienation of communal lands by the [sa 'o] charged with the management and control thereof.” A.S.C.A. § 37.0203(c). “It is prohibited for any matai of a Samoan family who is, as [the sa o], in control of the communal family lands or any part thereof, to alienate such family lands or any part thereof to any person without the written approval of the Governor of American Samoa.” A.S.C.A. § 37.0204(a). Fagaima’s authorization was simply not put through the mandated recommendation and approval steps in the land alienation process in order to effectively transfer title to the Fagaima family’s communal land at issue as Taylor’s individually owned land.
*224Accordingly, we will grant partial summary judgment in the objectors’ favor against Taylor by holding that the land at issue is the Fagaima family’s communal land and prohibiting the present attempt to register this land as Taylor’s individually owned land.
However, the evidence is conflicting on Taylor’s right to occupy and use the land by virtue of a customary assignment of the Fagaima family’s communal land by Fagaima to Taylor. The affidavits of Solaita and Taylor put this ultimate fact at issue. Moreover, the court in Taylor v. Fagaima Family found that in accordance with Samoan custom, the claimant in that action and his family are entitled to occupy and use the land now at issue, so long as the claimant, and presumably his family members, served the Fagaima sa'o. This fact issue of a customary communal land assignment must still be determined by trial. Thus, at this time the building under construction shall remain on the land, but the preliminary injunction preventing Taylor from further construction on the land shall remain in effect.
Order
1. The court declares that the land at issue is the Fagaima family’s communal land and prohibits present registration of the land as Taylor’s individually owned land. The objectors are granted partial summary judgment to this extent against Taylor.
2. The ultimate fact issue of Taylor’s right to occupy and use the land pnder of a customary assignment of communal land shall still be determined by trial. This trial is scheduled on January 28, 2000. The preliminary injunction preventing Taylor from further construction on the land remains in effect as previously ordered.
3. The clerk of the court shall have a copy of this order and the partial summary judgment served on the Territorial Registrar.
It is so ordered.
The court in Taylor v. Fagaima Family also directed the Territorial Registrar to register the adjudicated land as the Fagaima family’s communal land. The Registrar was given a copy of the court’s decision. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486631/ | ORDER ON MOTION TO DISMISS
This matter came on for trial on July 22, 1999: After the evidence had developed, counter-claimant Moreli Alaipalelei (“Alaipalelei”), joined by counter-claimant Tuluiga T. Maae (“Tuluiga”), moved to dismiss claimant Taulapapa S. Savea’s (“Taulapapa”) succession claim to the matai title “Taliaaueafe,” on the grounds that Taulapapa had offered the title for registration with the Territorial Registrar’s Office before the Taliaaueafe family had even met to select a successor matai. Movant’s cite to A.S.C.A. § 1.0405(b) which states in relevant part:
The petition [to register a matai title] must state that a family meeting was called and held for the purpose of selecting a successor to the title in question, according to the traditions of the family.
Facts
The facts, for purposes of this motion, are as follows: On October 3, 1997, Taulapapa filed petition with the Territorial Registrar to register the matai title Taliaaueafe. His claim, which was “subscribed and sworn” to before the Territorial Registrar stated, inter alia, that “a family meeting was called and held for the purpose of selecting a successor to the title in question and [that he had] been chosen accordingly.” Based upon this declaration, the Territorial Registrar publicly advertised Taulapapa’s claim, thereby triggering the matai registration process provided under the Matai Registration Statute, A.S.C.A. §§ 1.0101 etseq (the “Act”). In due time, Taulapapa’s publicized claim attracted family reaction in the way of objection/counterclaims filed by Alaipalelei and Tuluiga.
*227In fact, there had never been a prior family meeting to select, let alone discuss, a successor matai. Indeed, the first family meeting on the issue of matai succession was convened by Taulapapa on Saturday October 4, 1997. The assembled family at that meeting were not aware that Taulapapa had already offered the family’s title for registration, having falsely declared that the family had already met and chosen him as the next titleholder.
Movants argue that Taulapapa’s attempt to register the title before the family had even met to discuss matai succession should properly result in the dismissal of Taulapapa’s petition with prejudice. Taulapapa, on the other hand, argues that the Act does not mandate the drastic action of disenfranchisement. At most, Taulapapa submits, the matter should merely be remanded back to the family.
Discussion
We preface this discussion by referencing Article 1, section 3, Revised Constitution of American Samoa, which reads in part:
It shall be the policy of the Government of American Samoa to protect persons of Samoan ancestry against ... the destruction of the Samoan way of life. . . . Such legislation as may be necessary may be enacted to protect the . . . customs, culture, and traditional Samoan family organization ....
(Emphasis added). In reviewing Article 1, this Court has earlier said: “The message is clear. The Samoan way of life must be protected.” Fairholt v. Aulava, 1 A.S.R.2d. 73, 76 (Land & Titles Div. 1983).
A fundamental feature of “the customs, culture, and traditional Samoan family organization” is that a Samoan family selects its matai, or titular head. In construing the Act, this Court has invariably underscored the importance of preserving the fa 'a Samoa (the Samoan way of life) and the rights of those qualified thereunder. In re Matai Title Fagaima, 4 A.S.R. 83, 87 (Land & Titles Div. 1973); In re Matai Title Afoafouvale, 4 A.S.R. 145, 147 (Land & Titles Div. 1975). Thus, “the Court should be always guided by the overarching purpose of the [Act], which is to preserve Samoan culture rather than to destroy it [and] interpret statutes dealing with Samoan custom and matai titles so as to minimize the extent to which customary law is modified or overridden by the imported procedural framework. . . .” In re Matai Title Ma'ae, 6 A.S.R.2d 75, 77 (Land & Titles Div. 1987).
It is plainly obvious from the design, scheme, and purpose of the Act, that the “imported procedural framework” was never attended to displace or supplant the Samoan Family in matters of matai selection. Rather, *228resort to the “imported procedural framework” is to be availed only where the traditional matai selection process has failed to select a new matai in the customary manner. Hence, the statutorily defined role of the Court “to hear and determine any disputed claim,” A.S.C.A. § 1.0409, is exercised only when a family cannot reach agreement over who should hold the title. In re Matai Title Ma'ae, at 76. Hence the statutory requirement that any petition for matai registration “must” certify “that a family meeting was called and held for the purpose of selecting a successor to the [family’s matai] title, according to the traditions of the family.” A.S.C.A. § 1.0405(b).
It has become quite evident, however, that a number of disputes coming ¡before the Court are generated not by family failure to select a matai, but by premature action of impetuous family members bolting to the Territorial Registrar’s office before “a family meeting [has even been] called and held for the purpose of selecting a successor to the [family’s matai] title, according to the traditions of the family.” A.S.C.A. § 1.0405(b). This troublesome practice forces all other family members desirous of seeking the title, or preserving their rights to be considered candidates to the title, to file counterclaims with the Territorial Registrar, who “may not accept . . . counterclaims . . . filed after the sixtieth day [following the posting of notice of a succession claim].” A.S.C.A. § 1.0407(a). A matai title dispute thus ensues quite unrelated to any family action at all. The “imported procedural framework” thus in actuality becomes nothing less than a catalyst for a matai title case. At the same time, subsequent family meetings under these circumstances are seldom conciliatory. But even so, family choice is restricted to the slate of candidates resulting under the limitations period imposed by § 1.0407(a).
We hardly think that this is the intended or logical consequence of the Act.1 The Act need not, and should not, be construed to allow the statutory registration process, ultimately the Court, to totally supplant and displace a Samoan family from the matai selection process and thereby undermine fa 'a Samoa; rather, the Court should only feature in the selection process if, and only if, a family proves unable to reach agreement on a matai. Matai vacancies must be left to the family for resolution at first instance, if the protective policy of the territorial Constitution is given more than mere lip service. Unless and until a family has had a meaningful opportunity2 to thoroughly confront the *229issue of matai succession and to decide for itself whether ór not it can select a new titleholder, the Lands and Titles Division really has no business entertaining matai title cases. Just as the Court has, in another context of traditional dispute resolution, steadfastly declined to substitute its judgment for that of the sa 'o in the lawful exercise of matai pule (traditional authority) and responsibility,3 the Court should equally avoid inteqecting its judgment on matters, of matai succession, to the exclusion of the Samoan family.
In the future, and before referring matai title matters to the Land and Titles Division, the Territorial Registrar should first satisfy herself that a family meeting has been called and held,4 for the purpose of selecting a successor matai according to the traditions of the family, and that the family was not able to select a new titleholder. Otherwise, there is no matai title dispute for certification to the Land and Titles Division.
Finally, we disagree with movants’ contention that the proper consequence of Taulapapa’s premature filing, is disqualification. As noted above, this Court has construed the Act so as to promote and preserve not only the fa 'a Samoa, “but the rights of those qualified under the statute.” In re Matai Title Fagaima, 4 A.S.R. at 87 (Land & Titles Div. 1973); In re Matai Title Afoafouvale, 4 A.S.R. at 147 (Land & Titles Div. 1975). We see nothing in the Act which suggests that premature filing warrants the extreme action of disenfranchising an eligible heir to the title.5 Such a construction of the Act would be hostile to the fa 'a Samoa sought to be protected.
*230On the foregoing, we conclude that the matter of succession should be remanded to the Taliaaueafe family for the purpose of its choosing a successor matai unfettered by A.S.C.A. § 1.0407 as to any particular slate of eligible candidates. We therefore dismiss the action before us without prejudice to all parties and direct the Territorial Registrar to cancel all offers to register the matai title “Taliaaueafe” and to remand as aforesaid.
It is so ordered.
There is contrary dicta found in In re Matai Leiato, 2 A.S.R.2d 94, 96 (Land & Titles Div. 1986), suggesting that current law allows individual resort to the matai registration process to thereby -effectively bypass the family altogether. Such a suggestion, however, is inimical to fa'a Samoa and constitutional protective policy.
Without intending to prescribe any procedural format for family *229meeting(s) “according to traditions of the family,” we note that “good faith effort to iron out disputes” is, in the Samoan way of life, “discussions, discussions, and discussions.” Fairholt v. Aulava, 1 A.S.R.2d. 73, 78 (Land & Titles Div. 1983). Emphasis in original.
See e.g. Fairholt v. Aulava, 1 A.S.R.2d. 73, 79 (Land & Titles Div. 1983)(“The court will not substitute its opinion or its judgment for that of the iSa'o”); Gi v. Temu, 11 A.S.R.2d. 137, 142 (Land & Titles Div. 1989)(“Courts will not interfere with decisions of sa'o unless they are arbitrary, capricious, illegal, or abusive of discretion”).
It is equally important to ascertain whether or not a meeting was called according to family tradition. The Court in In re Matai Title Misa'alefua, 28 A.S.R.2d 106 (Land & Titles Div. 1995), had occasion to comment disparagingly about party claims to clan support based on the practice of private meetings in private homes by individual candidates and their immediate supporters. Family meetings entail appropriate notice to the family’s clans with venue at an appropriately neutral setting such as the family’s guest house.
That is not to say, however, that the giving of false affidavits and declarations are not without legal consequences. The giving of false averments are criminal offenses. See A.S.C.A. §§ 46.4606-07. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486632/ | ORDER DENYING MOTION TO STAY JUDGMENT PENDING APPEAL
This appeal is a continuation of the leasehold dispute adjudicated in CA No. 12-99 between Alamoana & Yu-Tong Co. and Alamoana S. Mulitauaopele (collectively “Alamoana”) and the American Samoa Government (“ASG”). A brief sketch of the relevant facts and procedural history, more fully articulated in the Trial Division’s opinion and order of October 20, 1999, granting summary judgment in ASG’s favor against Alamoana, follows.
Alamoana leased from ASG a parcel of land known as Lot 30 in the Senator Daniel K. Inouye Industrial Park in January 1992. The Trial Division found that Alamoana violated the lease agreement by failing to pay rent, improve the property, use the land as specified, and obtain liability insurance. It accordingly granted summary judgment to ASG in its opinion and order of October 20, 1999. This order directed Alamoana to vacate the property and pay ASG $25,794.56 in back rent. *5Alamoana’s motion for reconsideration or new trial was denied on December 14, 1999. The Trial Division likewise denied his motion for stay of execution of judgment on March 17, 2000. Having exhausted his remedies at the trial court level, Alamoana properly moves for a stay of execution of judgment from the Appellate Division under T.C.R.C.P. 62(d) and A.C.R. 8.
Analysis
To begin, this case is a paradigmatic example of the rule that “[i]n the great run of pro se cases, the issues are faintly articulated and often only dimly perceived.” Dev. Bank of Am. Samoa v. Ilalio, 5 A.S.R.2d 110, 116 (Trial Div. 1987) (quoting Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)). We recognize that this places a “greater burden and a correlative greater responsibility” upon us to see that justice is done. Ilalio, 5 A.S.R.2d at 116 (quoting Gordon, 574 F.2d at 1151 (quoting Canty v. City of Richmond, 383 F. Supp. 1396, 1400 (E.D. Va. 1974))). This responsibility is even greater in a case such as this where the pro se defendant “who cannot afford a lawyer [has been] called into court against his will.” Ilalio, 5 A.S.R.2d at 116.
The motion to stay execution of judgment is based on two grounds. First, Alamoana asserts that a discrepancy in the filing and signing dates on the trial corut’s denial of motion to stay execution of judgment renders it unenforceable. Second, Alamoana contends that this appeal will be successful and that irreparable harm will result if the stay is denied.
A. Date of Order
The trial court denied Alamoana’s motion to stay execution of judgment in CA No. 12-99. The date above the judges’ signatures reads March 18, 2000, whereas the filing date (accompanying the signature of the Clerk of Courts) reads March 17, 2000. Alamoana asserts that this discrepancy shows that the order was filed before it was signed and concludes that this alleged premature filing causes the order to be unenforceable.
Alamoana’s argument fails because the order was in fact not filed before it was signed. The discrepancy in the dates was instead the result of clerical error. The date of filing, March 17, 2000, was a Friday. The order was obviously not signed by the three judges on March 18, 2000, because this was a Saturday and the Court was not in session. The discrepancy occurred because the later date was written in inadvertant error. Moreover, the filing date controls. The typographical error is simply inconsequential, and the order is to be given the same effect as any other ruling by this Court.
*6B. Merits of the Motion for Stay of Execution of Eviction
A court should not automatically or casually grant a stay of judgment pending appeal. The court’s discretion to grant a stay should be exercised only if cause is shown. A.S.C.A. § 43.0803; Asifoa v. Lualemana, 17 A.S.R.2d 10, 12 (App. Div. 1990) [hereinafter Asifoa 7], The moving party bears the burden of showing cause as to why an injunction should be stayed. Lutali v. Foster, 24 A.S.R.2d 81, 83 (Trial Div. 1993). “The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof.” A.C.R. 8.
Similar to a petition for a preliminary injunction, the decision to grant or deny a motion for a stay of an injunction pending appeal depends partly on the ‘balance of equities’ and partly on the likelihood of appeal’s success. Asifoa I, 17 A.S.R.2d at 13. Grant of a stay is not a matter of right, even if the appellant might otherwise suffer irreparable injury, but is rather subject to judicial discretion and is dependent on all the circumstances of the case. Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 10-11 (1942).
1. Balance of the Equities
In balancing the equities of a stay of injunction pending appeal, we must consider three factors: (1) whether the appellant would suffer irreparable harm if the stay is refused, (2) whether the appellee would suffer irreparable harm if the stay is granted, and (3) how a stay would ¿ffect the public interest. Asifoa v. Lualemana, 11 A.S.R.2d 100, 102 (App. Div. 1990) [hereinafter Asifoa II],
Alamoana directs us to exhibits H and I, attached to the motion for stay, for proof of “hardships and unfair treatment.” These exhibits, however, do not describe any irreparable harm that Alamoana would suffer were the stay not granted. Rather, they are pleas for assistance from the President and Attorney General of the U.S. to cure alleged “blatant violations of . . . human rights” attributed to the American Samoa Government in pursuing this action. Alamoana similarly fails to assert any irreparable harm that he will suffer as a result of the eviction anywhere in the motion and supporting documents.
We can, however, see how irreparable harm would result if the stay is not granted. Subsequent to eviction, ASG will be able to lease the disputed property to another. Were the appeal to succeed, Alamoana’s inability to occupy the premises under the former leasehold could constitute irreparable harm. This scenario also puts into play another factor to consider when balancing the equities. The general principle *7underlying stays of injunctive relief is that the status quo should be preserved pending appeal. Asifoa II, 17 A.S.R.2d at 103. The status quo has Alamoana currently occupying the disputed property. By enforcing the eviction, the status quo will not be maintained, and were ASG to re-let the premises, the status quo would be difficult to resurrect with another tenant on the property.
We are unable to perceive how ASG would suffer irreparable harm if the stay were granted. ASG has not alleged that Alamoana is committing waste on the property. Rather, ASG’s injury consists of rental payments owed. ASG’s injury in being unable to evict Alamoana can thus be easily compensated if it prevails upon appeal by assessing rent for the time Alamoana occupied the property pending appeal.
The public interest, on the other hand, argues that the stay should be denied. The property Alamoana occupies is managed by ASG on behalf of the territory’s residents. Alamoana has damaged these residents’ interest in the property in two ways. First, Alamoana has denied them the benefits of the revenue that should have been forthcoming from the property in the form of lease payments. Second, Alamoana has failed to develop the property as agreed upon, thus failing to contribute to the economy of the territory as envisioned in the creation of the Industrial Park. Every day Alamoana remains in possession of the property is another day in which the public is injured.
In sum, then, the equities appear to balance. On the one hand, Alamoana could suffer irreparable injury if the stay is denied. On the other, the public interest is best served by denial. In order to resolve the motion to stay, we must look to the likelihood of Alamoana’s success upon appeal.
2. Likelihood of Success upon Appeal
In assessing the likelihood of success on appeal, a court may stay an injunction when it has doubts about the substantive correctness of its decision, such as when new and difficult questions of law are involved. Asifoa I, 17 A.S.R.2d 10. This standard has clearly not been met in the present case. Alamoana has provided absolutely no issue of law or fact in his motion for stay that could serve as a basis for his appeal. It thus appears that his likelihood of success upon appeal is nonexistent.
First, Alamoana fails to fulfill the requirements of A.C.R. 8 in that he utterly fails to “show the reasons for the relief requested and the facts relied upon . . . .” We are unable to discern any particular issues of fact or law upon which Alamoana plans to base his appeal.
Second, Alamoana’s reliance on T.C.R.C.P. 56(f) is completely misplaced. This mle states that a court may order a continuance of a *8summary judgment motion when the opposing party is unable to present facts by affidavit sufficient to contest the motion. Unfortunately for Alamoana, the trial court granted summary judgment to ASG in CA No. 12-99. Had Alamoana been unable to secure sufficient facts by affidavit at the time of that hearing, he should have requested a continuance under T.C.R.C.P. 56(f) at that time. Summary judgment having been granted, the opportunity to do so has passed, and this argument provides no basis for an appeal.
In conclusion, we compare this case to the situation in Asifoa II, 17 A.S.R.2d at 100. A major factor in the Asifoa Court’s decision to grant a stay was the fact that the issue on appeal was not frivolous, trivial, or presented merely for delay. Here, on the contrary, we can discern absolutely no issue on appeal. On this basis, the motion for stay must be denied.
C. Alamoana’s Access to Legal Documents
Alamoana asserts inability to access files located in an office on the disputed parcel of land due to interference by ASG, and that these circumstances have deprived Alamoana of the ability to put forward the best case for a motion to stay. We will accordingly deny the present motion to stay without prejudice in order to afford Alamoana opportunity to file a new motion if persuasive facts and law are found in the materials that Alamoana was previously unable to access.
D. Alamoana S. Mulitauaonele’s Representation of Alamoana & Yu Tong Co.
As a final matter, we note with concern that Alamoana S. Mulitauaopele is not an attorney but is representing Alamoana & YuTong Co. According to the complaint, Alamoana & Yu-Tong Co. is a partnership consisting of Alamoana individually and a foreign business entity by the name of Yu-Tong Hsu. Alamoana seems to assert in the answer that Alamoana & Yu-Tong Co. is instead a sole proprietorship, but reliance on the lease of the property at issue to prove this point is not convincing. We point out to Alamoana as an individual and non-lawyer that it is a misdemeanor for an unlicensed or unauthorized person to represent another person or business entity in court. A.S.C.A. § 31.0104; Pene v. Am. Samoa Gov’t, 12 A.S.R.2d 43, 47 (App. Div. 1989). If Alamoana & Yu-Tong Co. is anything but a sole proprietorship, Alamoana as an individual risks imprisonment if he continues to represent that entity.
Order
For the foregoing reasons, Alamoana’s motion to stay judgment pending *9appeal is denied without prejudice.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486633/ | OPINION AND ORDER
Per Curiam:
Petitioners Lealaifuaneva Peter E. Reid (“Reid”) and Afoa Moega Lutu, candidates for governor and lieutenant governor, seek to contest the results of the gubernatorial election held on Tuesday, November 7, 2000 (“Election Day”) pursuant to A.S.C.A. §§ 6.0902 and 6.0903. Petitioners filed their complaint on November 14, 2000, at 2:55 p.m., alleging eight causes of action for invalidating the November 7, 2000, election. Respondent Soliai Tuipine, Chief Election Officer, filed his answer on November 17, 2000. The Court took evidence1 and heard arguments on November 20, 22, and 24, 2000.
*12Facts
In 1996, Respondent adopted administrative rule No. EL-01-96 (“Election Rules”) for carrying out Title 6 of the American Samoa Code (“Election Laws”). A.S.A.C. § 3.1101 of the Election Rules sets forth the voting procedures for requesting and casting temporary and local absentee ballots.2
Respondent made the Election Rules available for public inspection and, on August 15, 1996, filed certified copies with the Secretary of American Samoa (Lieutenant Governor), the Secretary of the Senate, and the Clerk of the House of Representatives. (Ex. 25.) .The Election Rules became effective on September 4, 1996, and were duly applied in the 1996, 1998, and 2000 elections. These rules have remained uncontested until the current case before the Court.
Respondent published a description of the Election Rules that was made available to candidates and the general public before each election (“Candidate Manual”). The Candidate Manual for the election at issue was published in the latter part of June 2000. (2000 Candidate Manual Ex. 31.) Respondent also mailed an additional set of papers to all candidates on August 25, 2000, detailing the Election Office’s absentee voting procedures. (Absentee Voting Booklet Ex. 2.)
Respondent was summoned by the Senate and appeared on September 8, 2000, to discuss the absentee ballot procedure. Petitioner Reid, as a Senator, also attended this hearing, but neither he nor the Senate made any complaints or official challenges in the form of a letter or resolution, or otherwise contested the absentee voting procedure as provided for by A.S.C.A. § 4.1009(d). At a later date, emissaries from Petitioners’ campaign committee visited Respondent and discussed the absentee voting procedure.
*13For the 2000 general election, Respondent designated one or more polling stations in each of the 17 election districts in accordance with A.S.C.A. § 6.0502(a). Respondent added one polling station, the Amouli/Auasi/Utumea polling, station on Tutuila, to the 43 polling stations designated in the 1996 general election, totaling 44 polling stations territory-wide. This addition was made available for the benefit of voters residing in Aunu'u who complained about not being able to return to the polling station on the island in time to vote.
Respondent hired and designated election officials to perform the functions of the Election Office under A.S.C.A. § 6.0102(h). Prospective election officials completed applications requiring that applicants reveal, in addition to other personal information, whether they are active members of “any campaign for public office,” and whether they are an “immediate relative of anyone who is campaigning for public office.” (Ex. 28.) Respondent states that he did not hire applicants who answered in the affirmative to either of these two questions.
No district officials were suggested by any of the three district governors for the general election of 2000. The district governors did not submit a list of names to Respondent as defined in A.S.C.A. § 6.0102(e) and allowed by A.S.C.A. § 6.0402(a), nor did Respondent solicit such a list. District officials are required to perform Election Day functions including: deciding challenges to the qualifications of electors on Election Day, A.S.C.A. § 6.0223(b); opening the polls, A.S.C.A. § 6.0701; providing sufficient polling booths, A.S.C.A. § 6.0703(a); placing and observing the ballot boxes, A.S.C.A. § 6.0703(b); opening and exposing empty ballot boxes to all present before the start of voting, A.S.C.A. § 6.0705(a); sealing the ballot box and forwarding it to a central polling station, A.S.C.A. § 6.0802(a); and performing a number of other statutorily-mandated functions. Respondent instead designated one election official to be a “team leader” of each polling station to perform most of the functions required of district officials. He did not screen these individuals for the ability to speak Samoan and English as is required by A.S.C.A. § 6.0402(a) for district officials. Nor did he require any of the team leaders, or other election officials, to mle on challenges to elector qualifications as also required of district officials. Rather, he instructed election officials to set the challenged votes aside in envelopes to be ruled upon by the Board of Registration.
Respondent kept a running list of election officials as he hired them, including those election officials designated as team leaders. Until Election Day, individuals resigned or might have been removed from the list due to admitted or discovered affiliation with partisan campaigns. A final list of election officials was not compiled until Election Day. Respondent did not receive any requests to view this list of election officials, nor he did he make the list public out of fear that the officials *14would be susceptible to bribery.
On or about September 1, 2000, Respondent caused 15,600 ballots for the governor’s race to be printed, corresponding to the actual number of registered voters. Respondent received requests for ballots from off-island absentee voters until October 24, 2000, fifteen days before the general election, pursuant to A.S.C.A. § 6.1102. Respondent responded to these with either a denial letter or a packet containing an official ballot, instructions and a reply envelope, all within 24 hours of receiving the request in accordance with A.S.C.A. § 6.1103.
Completed off-island absentee ballots arrived at the U.S. Post Office of American Samoa at least biweekly until Election Day. Respondent’s staff picked up the ballots at the post office and delivered them to the main Election Office in Utulei (“Election Office”). On the days following the biweekly flights, poll watchers for all candidates were invited to observe the opening of the absentee ballot container and the disposition of the off-island absentee ballots. With poll watchers in attendance, Respondent removed the absentee ballot container from Respondent’s file cabinet, both of which, box and cabinet, were locked and accessible by Respondent’s sole key. Election officials then checked the envelopes for qualifications and tampering, called out the registration numbers before logging them in the election log, and placed the envelopes in the ballot box. At the close of each session, Respondent relocked the absentee ballot container in his file cabinet. Respondent similarly placed the off-island absentee ballots arriving during the week in the file cabinet until the upcoming Monday or Friday public sessions.
Respondent required that temporary and certain local absentee ballots be cast at the Election Office, which functioned as the “absentee qualified elector polling station” under A.S.C.A. § 6.1107. These voters were instructed to show proper identification to Respondent’s employees, who then checked the voters’ personal files for proper qualification. If deemed qualified, each voter received three ballots which the voter cast and placed in envelopes. The voters sealed the envelopes, signed their names and voter registration numbers on the seal, and placed the envelopes in the respective box for Governor, House of Representatives, or Congressional delegate.
Respondent did not accept requests for temporary absentee ballots between the 75th day prior to the election and the printing of the ballots on or about September 1, 2000. After the printing of the ballots, Respondent implemented A.S.A.C. § 3.1101 in refusing to mail absentee ballots to temporary absentee voters who had already left the island. Respondent did not disqualify these voters from voting on-island, in person, if they so chose to vote.
*15Only those local absentee voters who qualified because of an inability to attend the polls were allowed to cast their vote from somewhere other than the polling stations in the territory. In those instances, election officials visited the elector at that elector’s location to procure his or her vote.
Notwithstanding Respondent’s review of election officials, certain election officials had partisan interests. We find at least one case of overt coercion by election officials who attempted to influence the vote of a local absentee voter.3 In addition, at some of the polling stations, campaigners wearing T-shirts with candidate logos were allowed to mill about polling stations, sit in the election officials’ chairs in the polling stations, greet voters entering the stations, and supply food to various election officials.
On the eve of the general election, Petitioners challenged the qualifications of 35 electors under A.S.C.A. § 6.0223(a) by way of a letter to Respondent delivered at approximately 2:45 p.m. (Ex. 19.) Respondent, preoccupied with the practicalities of staging the election, did not fully investigate the challenges, did not post notice to the challenged voters, and did not make a final decision on or respond to the letter until after the election. Respondent mailed a letter to Petitioners dated November 13, 2000, explaining that, though he made no decision regarding the challenge of 35 voters brought in mid-afternoon the day before the opening of the polls, Petitioners had been freely capable of challenging the qualifications of these voters at the polls themselves. (Ex. 26.) None of the 35 voters were challenged by Petitioners’ poll watchers on Election Day.
At approximately 8:00 p.m. on November 6, 2000, the night before Election Day, poll watchers were called to the election office to observe the opening of the absentee ballot containers and the sorting of the ballots. At 8:35 p.m., Petitioners’ poll watcher arrived. Under Respondent’s supervision, election officials removed the gubernatorial absentee ballot box from the file cabinet and placed it on a table in the middle of a large room in the election office, within an area accessible only to election officials and fenced off from the general public. The officials unlocked the box and removed the individual ballot envelopes. Utilizing the voter identification number and name written on each envelope, about ten election officials sorted the envelopes into 44 piles *16representing the 44 polling stations. The election officials called out each voter’s registration number and name to provide poll watchers the opportunity to cross-check their separate voter lists and challenge the qualifications of individual voters. Then, the officials secured the piles of ballot envelopes into large manila envelopes and placed these on the floor immediately before the Respondent and his counsel, who were both seated at Respondent’s desk.
While sorting the gubernatorial ballots, the election officials noticed that a number of congressional ballots had been mistakenly placed in the gubernatorial ballot box. They reasoned that absentee voters had improperly switched their ballots for Governor and Delegate to the U.S. House of Representatives, and that the congressional ballot box probably contained gubernatorial ballots. Respondent ordered the election officials to open and search the congressional absentee ballot box for gubernatorial votes that were found therein. The officials continued sorting gubernatorial ballots until sometime between 2:00 to 3:00 a.m., during which time the large manila envelopes containing the gubernatorial absentee ballots remained open on the floor in front of Respondent. No challenges were raised, either throughout the night or at the close of sorting, regarding voter qualifications or the sorting process.
At approximately 4:00 a.m., only the gubernatorial and congressional ballots had been sorted. In order to meet the poll opening deadline of 6:00 a.m., election officials placed the large manila envelopes into the corresponding ballot boxes for each polling station, except for the Manu'a and Aunu'u island ballot boxes that had been delivered the day before. They then closed and secured the boxes with padlocks. Respondent dispatched the individual polling officials to their respective polling stations, each carrying a locked ballot box filled with office supplies and the absentee ballots in manila envelopes. The officials were each accompanied to their assigned destinations by police escorts.
Meanwhile, election officials at the Election Office continued to sort the absentee ballot box for the American Samoa House of Representatives. On the morning of Election Day, more absentee ballots arrived in the mail. These were collected, verified, and sorted by election officials. Sometime before noon, three election officials accompanied by a police officer began to deliver these absentee ballots to the individual polling stations.
All the polling officials arrived at their designated polling stations before 6:00 a.m. to set up their materials. At each station, the polling officials removed the large manila envelopes containing the absentee ballots from the ballot boxes and set them aside. They then displayed the empty ballot boxes to all present, including poll watchers for all candidates. Beginning at 6:00 a.m., voters proceeded to cast their ballots. They: 1) *17presented identification; 2) had their name and voter registration number called out; 3) signed the poll log; 4) picked up three blank ballot forms to mark their gubernatorial, congressional, and representative votes; 5) entered a screened area to cast their vote; and 6) placed each marked ballot into the respective gubernatorial, congressional, and representative ballot box, located in the middle of the room.
Leone election officials did not require qualified electors to sign the poll book prior to receiving and casting their ballots. Instead, they highlighted the names of voters in the poll book with a yellow marker until the team leader noticed and corrected this error. On the poll accounting report submitted to the Election Office after the polls had closed, the team leader noted in parentheses the number of names highlighted separately from the number of voters’ signatures counted.
Respondent instructed team leaders to allow persons lawfully present at the polls on Election Day the opportunity to challenge the qualifications of any individual voters, in accordance with A.S.C.A. § 6.0223(b). In some instances, team leaders openly and repeatedly discouraged poll watchers from challenging voter qualifications, although ultimately, the evidence shows that all challenges were taken into account. All qualified voters were allowed to vote at the polls, but if challenged, this vote was sealed and set aside for later determination by the Board of Registration. Approximately 22 challenged votes were set aside and not counted in the election result. These are now pending determination by the Board of Registration.
Respondent allowed all polling stations located on Manu’a to close early so that the election officials could depart Manu’a for Tutuila on the afternoon flight .from Ta’u around 12:30 p.m. One Ta’u polling station closed at 11:10. Between 11:10 and 11:30 the team leader instructed the village mayors (Pulenu'u) to scour the villages to determine that all qualified electors had voted. The district governor of Manu’a then certified that all persons had voted. Respondent then authorized the early counting of the votes in the Manu’a islands. Early release of the results was not authorized, but neither was it prohibited. The polling station located on Tutuila for Manu’a residents remained open until about 6:00 p.m., the closing time prescribed for all polls.
After each station closed, team leaders opened the. large manila envelopes holding the governor’s absentee ballots, removed the envelopes containing individual absentee ballots, and transferred the ballots within each to the governor’s ballot box. At the Leone polling station, one of Petitioners’ poll watchers attempted to challenge this procedure, but he subsequently retracted this challenge after consulting with Petitioners’ Leone campaign committee. Officials then unlocked and opened the governor’s ballot box. Without first counting the total *18number of votes cast to determine that this amount corresponded with the number of electors shown on the poll book, as required by A.S.C.A. § 6.0802(a), the votes for each candidate were tallied. Only after the votes were counted as such did election officials compare the total number of ballots against the number of electors who voted, as indicated by the voters’ signatures, stamps representing absentee ballots, and proxy votes in the poll book. The election officials reported these figures in poll accounting reports for each polling station.
Election officials tallied a total of 12,057 votes territory-wide, not including the 22 challenged ballots that were placed aside at the polls. Petitioners received 342 votes less than the leading candidate, who received 82 votes more than the majority of votes required by A.S.C.A. § 4.0104 to avoid a run-off and carry an election.
Fourteen polling stations reported discrepancies between ballots counted and votes cast as reflected by the poll book. Each discrepancy was described as an “underage” or “overage” in accordance with A.S.C.A. § 6.0803(a). An overage occurs when there are more ballots than the poll book reveals were cast; an underage occurs when there are fewer. The poll accounting reports for the 14 polling stations show the following: Faleasao, underage of 14 (Ex. 5); Tula/Onenoa, underage of 3 (Ex. 6); Utulei/Gataivai, underage of 4 (Ex. 7); Fagatogo, underage of 4 (Ex. 8); Aunu'u/Amouli, underage of 1 (Ex. 9); Amouli/Auasi/Utumea, overage of 22 (Ex. 9); Pago Pago, underage of 5 (Ex. 11); Nu'uuli, overage of 90 (Ex. 12); Leone, overage of 255 (Ex. 13); the Tutuila polling station for Manu’a, underage of 2 (Ex. 14); Amaluia/Asili/Afao/Atauloma, underage of 5 (Ex. 15); Vaitogi, underage of 2 (Ex. 16); Vailoatai, overage of 26 (Ex. 17); and Futiga/Maleloa Ituau, underage of 1 (Ex. 18). The total number of initially reported overages and underages is 438.
Following Election Day, a veteran Election Office official of the 1994, 1996, 1998 and 2000 elections (“Reviewer”) attempted to reconcile the 2000 election results by counting the signatures of voters who voted on each roll, the stamped absentees whose votes were counted on the rolls, and the proxies on the rolls. These she totaled and compared with the poll accounting reports submitted by the election officials of each polling station. Reviewer reported her results for each polling station. (Ex. 34-42.) On the morning of November 14, 2000, the result was posted in summary form for public viewing at the Election Office. (Ex. 29.) The following table, complied by the Court, compares the overages (“+”) and underages (“-”) of the initial report against the reconciled report, and lists the reasons given by the Reviewer for the disparate numbers.
*19Polling Station Initial Report Reviewer’s Report Explanation by Reviewer
Faleasao Manu’a -14 +1 Absentee ballots not counted (+16),
Local absentee votes not counted (-2),
Spoiled ballot (-1)_
Tula/Onenoa -3 +1 Absentee ballot not counted (+1),
Challenged ballots not counted (+4)
_ Utulei/Gataivai +1 Absentee ballot not counted (+3),
Challenged ballots not counted (+2),_
Fagatogo -4 +1 Absentee ballots not counted (+2),
Void ballots not counted (+3)
Aunu'u/Amouli -1
Amouli/Auasi/ +22 +24 Void ballot not counted (+1),
Utumea Challenged ballot not counted m)_
Pago Pago Void ballots not counted (+2),
Challenged ballots not counted (+3)
Bad math in summing ballots (+4)_
Nu'uuli +90 +1 Miscounted signatures (+9),
Absentee ballots counted (-109),
Void ballots not counted (+5),
Challenged ballots not counted (±6)_
Leone +255 -2 Counting signatures and highlights (-263),5
Absentee ballot not counted i±D_
*20Polling Station Initial Report Reviewer’s Report Explanation by Reviewer
Votes not reconciled (+5)
Tutuila (for Manu’a) -2 +1 Absentee ballots not counted (+2),
Challenged ballot not counted ML
Amaluia/Asili/ Afao/Atauloma -5 -1 Challenged votes not counted (+4)_
Vaitogi -2 Miscounted signatures in poll book (+1) •
Absentee ballots not counted M)_
Vailoatai +26 -2 Miscounted signatures in poll book(+l),
Absentee ballots not counted (-34),
Challenged ballots not counted (+5)
Futiga/Malaeloa Ituau_ -1 Absentee ballot not counted M)_
Total +/- 438 +/- 36
The Reviewer’s reconciliation shows a total of 36 underages and overages, which figure is significantly less than the initial report of 438 overages and underages. This discrepancy is attributed by Reviewer to the election officials’ mistake in Leone of highlighting names, absentee ballots either counted or not counted at the 14 polling stations, and void ballots. The Reviewer failed to reconcile 5 votes in Leone.
Further, Reviewer has shown that of the 36 overages and underages, 23 votes are due to the mistaken double-counting and double-reporting of Aunu'u/Amouli ballots, consisting of 10 votes for Petitioners and 13 votes for the leading candidates. This double-counting has two effects: first, it reduces the number of acknowledged overages and underages to 13 (36 total overages or underages minus the 23 Aunu'u/Amouli votes), and second, if taken into account in the election results (“revised results”), it reduces the margin by which leading candidates hold the majority vote to 81 votes.6
*21The number of uncertain votes in the 2000 election figure does not equal or exceed 81, the number by which the leading candidate carried the majority vote. Considering the evidence in the light most favorable to Petitioners, the Court finds that the number of uncertain votes includes: (1) the 22 votes that were challenged, set aside at the polling stations, and not included in the final election tally, (2) 13 overages and underages, and (3) the 5 unreconciled votes in Leone. Adding the 22 challenged votes into the revised results as if they voted for Petitioners reduces the leading candidate’s majority margin to 70.7 No combination of the remaining uncertain votes equals or exceeds this number.
Discussion
Petitioner sets forth eight causes of action: 1) disenfranchisement of temporary absentee voters; 2) unauthorized change to the register of electors; 3) improper security for absentee ballots; 4) overage of voters in Leone; 5) improper early closing of polls in Manu’a; 6) failure to provide a list of election officials; 7) unaddressed challenges to improper or unqualified electors; and 8) wrongful acts and election fraud generally.
Standard of Review
A.S.C.A. § 6.0903(c) sets the standard of review for invalidating a general election.8 Petitioners must prove that the election result has been made uncertain due to (1) mistake or (2) fraud or (3) the indeterminacy of the leading candidates’ majority margin according to the valid votes cast. See Mau v. Fuimaono, 27 A.S.R. 2d 44, 47 (App. Div. 1994) (finding a candidate’s fraud to have sufficiently invalidated three votes cast, rendering the result uncertain); Fuala'au v. Setu, 23 A.S.R.2d 48, 50 (App. Div. 1992) (holding that the standard for determining that an election result is uncertain under A.S.C.A. § 6.0903 depends on the number of valid votes cast). The Court in Fuala 'au interpreted A.S.C.A. § 6.0903(c) to mean that the election is to be invalidated only if the *22number of ineligible ballots cast is equal to or greater than the winning margin. Id. (quoting Dole v. Attorney General, AP No. 24-78, slip op. at 8 (App. Div. 1978)).
Moreover, Petitioners have the burden of proving the uncertainty of the election result by clear and convincing evidence. Wilks v. Mouton, 722 P.2d 187, 190 (Cal. 1986); see also Donohue v. Bd. of Elections, 435 F. Supp. 957, 967 (E.D.N.Y. 1976) (placing a heavy burden upon plaintiffs to show necessity for a new presidential election).
I. Disenfranchisement of Temporary Absentee Voters
Petitioners contest the effect of the Election Rules as applied to absentee voting during the 2000 election. Petitioners claim that the mies run counter to Election Laws, and that Respondent’s use of these rules excluded a number of voters who, if allowed to vote, may have rendered the election result uncertain.
The laws of American Samoa guarantee the vote of temporary absentee voters by enabling them to request votes until the day before the election, and by providing that they be mailed ballots within twenty-four hours of their request. The three categories of absentee voters — off-island, temporary, and local — are governed by the same statutory process for voting under A.S.C.A. § 6.1103, though subject to different timelines for submitting requests under A.S.C.A. § 6.1102. At issue are the Election Rules as they are applied to temporary absentee voters.
A.S.C.A. § 6.1101(c)(2) mandates temporary absentee voters “shall be allowed to vote.” A.S.C.A. § 6.1102(b) provides for such voters to request ballots any time after the 75 th day before the election, up until 4:30 p.m. the day before the election. A.S.C.A. § 6.1103 then mandates that the Chief Election Officer “shall examine the records” for the voter’s qualifications, and “shall mail in a forwarding envelope, via airmail if necessary, or deliver in person ... an official ballot.” For those requests made on the last day of receipt, the provision mandates that these be mailed “as soon as reasonably practicable, but in no event later than 24 hours after its receipt.” Id. This statutory language reflects the legislative intent, manifested in certain procedures, for ensuring the vote of temporary absentee voters.
Respondent’s interpretation of this statutory mandate has been made explicit through the Election Rules, the Candidate Manuals, the Absentee Voting Booklet, and his conduct in the 1996, 1998 and 2000 elections. Specifically, A.S.A.C. § 3.1101(a) of the Election Rules restricts temporary absentee voting to the “availability of ballots printed.” The Candidate Manual elucidates that temporary absentee voters “must vote at the Election Office before he/she travels, provided that official ballots *23are printed and available [sic].” (2000 Candidate Manual Ex. 31 at 26.) The Absentee Voting Booklet also explains the policy, in reference to local absentee ballots under A.S.C.A. § 6.1102(b):
[I]f an elector travels before the official ballots are printed, he does not qualify to vote by absentee ballot, and the Election Office is not authorized to send him absentee ballots to his off-island address.
(Absentee Voting Booklet Ex. 2 § 2.1.1.) Respondent’s procedure restricts temporary absentee voters in two distinct ways not contemplated by the Legislature: they may not request votes before ballots are printed, and they may only vote in person. Temporary absentee voters must vote in the narrow window of time between the printing of the ballots and their departure from the island, or else not vote at all. Thus, Petitioner argues, those who request to vote and leave before the printing of the ballots are discriminated against in a way not contemplated by our Election Laws.
We agree with Petitioners. The Election Rules as applied to on-island residents who travel due to medical, business, military, or vacation reasons are inconsistent with the Election Laws. Administrative rules simply cannot supersede existing statutory authority where they directly conflict, as in this case. Considerable deference is given to administrative decisions involving an agency’s construction of its governing statute and regulations, but only if the court decides that the interpretation is consistent with the statutory mandate and does not frustrate legislative policy. Nat’l Pac. Ins. Co. v. Comm’r, Am. Samoa Gov’t’s Workmen’s Comp. Comm’n, 22 A.S.R.2d 15, 17 (Trial Div. 1992); United States v. Rutherford, 44. U.S. 543, 552 (1979); see also Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 461 U.S. 837, 842 (1984). However, whether we have jurisdiction to decide this issue in this election contest is a threshold matter that precludes us from directly ruling on Petitioners’ first count. With this in mind, we now address Respondent’s motion to dismiss this first of Petitioners’ claims based on either lack of standing or lack of jurisdiction due to improper venue for contesting an administrative rule. We consider these grounds for dismissal as follows.
A. Petitioners’ Standing to Contest Election Rules
We find that Petitioners have standing to bring this claim pursuant to A.S.C.A. § 6.0902, which states that with respect to any election, “any candidate . . . may file a complaint in the High Court.” The provision further states that the complaint “shall set forth any cause or causes . . . that could cause a difference in the election result.” Petitioners are candidates for governor and lieutenant governor of American Samoa. *24Further, Petitioners’ complaint alleges that up to 300 voters may have been wrongly disenfranchised due to Respondent’s adherence to the Election Rules. In an election where Petitioners’ opposition holds the majority margin by 82 votes, the alleged exclusion of up to 300 voters could very well “cause a difference in the election result.” As candidates challenging a critical number of votes, the Petitioners have standing to assert this claim.
B. Lack of Subject Matter Jurisdiction Under the Election Statutes
Although we find that Petitioners have standing to bring this election contest before the Court, Respondent contends that this Court is not the proper venue for hearing Petitioners’ first count.
Under A.S.C.A. § 3.0208(c), the Appellate Court has jurisdiction to hear matters “specifically provided for by statute.” Title 6 of the American Samoa Code explicitly provides that election contests be heard by the Appellate Division of the High Court. See A.S.C.A. § 6.0903(a). We look again to A.S.C.A. § 6.0902, entitled “Contests for Cause,” for guidance as to what specific subject matter the Court is authorized by law to review in such election contests. The first sentence of the second paragraph of A.S.C.A. § 6.0902 intimates that the Court may hear virtually any cause of action. It states:
The complaint shall set forth any cause or causes, including but not limited to: provable fraud, overages, or underages, that could cause a difference in the election result.
The next sentence, however, constrains the basis on which the Court may rule by directing that:
The complaint shall also set forth any reasons for reversing, correcting, or changing the decisions of the district or election officials.
Id. Reading the two sentences together, we find that this Court has broad powers to review “any cause . . . that could cause a difference in the election result,” but only insofar as the cause is treatable by “reversing, correcting, or changing the decisions of district or election officials.” Id. The statute thus limits this Court to adjudicating the decisions of election officials that could cause a difference in the election result.
This case does not qualify under the subject matter jurisdiction provided for by A.S.C.A. § 6.0902. Respondent is the election official responsible for drafting and adopting the Election Rules, which decisions allegedly made a difference in the election result. However, Petitioners challenge the legality of Election Rules themselves. These rules *25arguably involve more than Respondent’s decision-making, but include also the measure of public sanction given by the open hearings held on said rules, their uncontested application in the 1996 and 1998 elections, and Petitioners’ own knowledge of these rales and lack of challenge to them prior to and during the election. We find that the enactment of an administrative rale involves more than the mere “decision” of an election official for purposes of the statutes concerning election contests. We rale, therefore, that the review of administrative rales is outside the scope of our review.
We note that Petitioners had more than ample time to contest the Election Rules as applied not only to the 2000, but also the 1996 elections in which Petitioners took part. Such delay may estop parties from obtaining post-election relief from challenges to rales that could have been heard and remedied prior to the election itself. We agree with the Fifth Circuit Court of Appeals, in that prompt pre-election action may be a prerequisite to post-election relief. Toney v. White, 488 F.2d 310, 314 (5th Cir. 1973). Otherwise, judicial policy “may permit, if not encourage, parties who could raise a claim ‘to lay by and gamble upon receiving a favorable decision of the electorate’ and then, upon losing, seek to mido the ballot results in a court action.” Id. (quoting Toney v. White, 476 F.2d 203, 209 (5th Cir. 1973)).
Even if this Court had jurisdiction to review the first count, we are unable to invalidate the election based on this claim. Petitioners’ first claim is that the election result is uncertain because it should have included the votes of wrongly-excluded temporary absentee voters. However, statutory law only allows this Court to void elections based on the uncertainty of valid votes cast — not on votes that might have been cast. Fuala'au, 23 A.S.R.2d, at 50.
We find that Respondent’s rales regarding temporary absentee voters are at odds with statutory law, and strongly urge the parties, the Legislature, the Governor, and those temporary absentee voters affected by the rales to take appropriate action to correct this administrative restriction upon statutory voting rights. A.S.C.A. § 4.1006 provides that “[e]ach agency shall afford any interested person the opportunity to petition for the issuance, amendment, or repeal of a rule.” A.S.C.A. § 4.1009(d) provides that “The Legislature may by letter or resolution make appropriate suggestions for changes, amendments, repeals, or additions to the rales.”
II. Unauthorized Change to Register of Electors
In their second claim, Petitioners complain that the nebulous class of temporary absentee voters who were not allowed to vote in the 2000 elections, and who did not vote in the 1998 election, are required by law *26to be purged from the register of voters by Respondent. Respondent has entered two motions to dismiss this second cause of action, which we grant for lack of standing.
A.S.C.A. § 6.0902 establishes the standards for standing in election contests. Specifically, the second paragraph of this provision establishes two requirements for Petitioners’ complaint: first, that it “shall set forth any cause or causes . . . that could cause a difference in the election result,” and second, that it “shall set forth any reasons for reversing, correcting, or changing the decisions of the district or election officials.” A.S.C.A. § 6.0902. In other words, all causes of action brought before this Court in an election contest must claim to make a difference in the election result, and must pertain to a decision of a district or election official.
Petitioner’s second count, which challenges the legal requirement to purge voters from the voter registry, has no effect on the numerical result of Election Day. They do not, therefore, have standing to bring this second claim.
The Court is not insensitive to the apparent unfairness of the possibility that certain unidentified voters who were not allowed to vote under the Election Rules and who for some reason did not vote in 1998 might soon be stricken from the register of electors for no fault of their own. Such voters, however, have individual legal recourse against Respondent, and are not barred from re-registering to vote in the next election.
III. Improper Security for Absentee Ballots
Petitioners challenge the security measures taken by Respondent in handling absentee ballots, and pray for the Court to declare them, and the election in which they were cast, void. We find that a number of irregularities and deviations from the statutory guidelines did occur. However, without any evidence of tampering or fraud that might render the election result uncertain, we cannot grant Petitioners’ prayer.
A. Security of Absentee Ballot Containers
Respondent, his officials and employees engaged in practices that contravene the security measures prescribed by the statutory scheme for protecting absentee ballots. A.S.C.A. § 6.1106(a) requires that “[e]ach absentee ballot shall be placed in an absentee ballot container or containers.” The provision further defines the ballot box as a securely-sealed container with only an opening for inserting ballots, which must be seemed in Respondent’s office. Id. The Election Rules and Absentee Voting Booklet are consistent with this law, in mandating that the ballots *27shall remain sealed and secured in an absentee ballot box. The box is to remain locked, and Respondent is to hold the sole key.
Out of mere convenience, Respondent adopted a practice of locking in his file cabinet, but not in the designated ballot box, off-island absentee ballots that arrived in the mail on days other than those following the biweekly flights. There they remained until the next public session for deposit. Additionally, on the eve of the election, in order to meet a self-imposed morning deadline, Respondent opened the ballot box and sorted the absentee ballot return envelopes into large manila envelopes. These envelopes sat, open and on the floor, for about six hours in the Election Office, though secure behind a barrier and under guard of Respondent himself, for about six hours. Further, absentee ballots arriving on the morning of Election Day were picked up and carried by hand by three election officials to the 44 different polling stations under police escort. In these ways, the Respondent did not maintain the absentee ballots in their designated secure container as mandated by the Election Rules or Election Laws. In the absence of any additional evidence, however, we find that these lapses made the ballots less secure, but not insecure enough to establish a compelling legal or factual basis for invalidating an election.
B. Disposition of Absentee Ballots
We find, Anther, that Respondent’s administrative rules and adherence thereto contravene statutory law. A.S.C.A. § 6.1106(b) strictly prohibits the opening of the absentee ballot container before Election Day. Once officials open the ballot box to begin the vote tally, A.S.C.A. § 6.1108(c) provides that “the envelope [containing the absentee ballot], may be opened and the ballot counted as prescribed by law for the voting system in use.” See also A.S.C.A. § 6.1108(a). However, Absentee Voting Booklet § 3.2 allows the absentee ballot box to be opened at Respondent’s direction and in his presence. (Ex. 2.) The administrative rules thus give discretion to Respondent where the statute does not so provide.
Respondent supervised the opening of the absentee ballot boxes on the eve of Election Day in order to sort them into piles for delivery to the various polling stations. This action contravenes the statute, although it is authorized by the Election Rules. It introduces possibilities for suspicion and uncertainty that strict adherence to the statutory guidelines would obviate. However, there being no evidence that such ¿ctions had any affect on the election result, we cannot void the absentee ballots.
*28C. Count of Absentee Ballots on Election Day
Respondent ordered that the absentee ballots be counted within the districts, except for on the islands of Aunu'u and Manu'a, on Election Day. Such a policy required employees and officials of the Election Office to sort the ballots into manila envelopes on the eve of the election, to deliver these in less-than-secure conditions to the polling stations, and to securely maintain the envelopes until the end of voting, on the evening of Election Day. As demonstrated above, these practical consequences of Respondent’s decision to have absentee ballots counted at satellite stations violate a number of statutory prescriptions, and jeopardized the security of the ballots.
A.S.C.A. § 6.0802 governs the counting of ballots in the territory’s election process. Primarily, it requires that Respondent designate “a central polling station” to count all ballots, which we take literally to mean one polling station centrally located. A.S.C.A. § 6.0802. Respondent, however, adopted rules requiring the counting of ballots to take place at a “designated polling station within the district of the qualified elector,” where absentee ballots were “[to] be counted with the ballots that were cast at the polling station.” A.S.A.C. § 3.1102. This standard of delivering and counting the ballots away from a central polling station was further sanctioned by Respondent’s documented procedures.
The Election Laws require that all ballots be counted at a central polling station. The Election Rules require that they be counted at each of the several polling stations. Respondent’s promulgation and adherence to the Election Rules resulted in a number of snags requiring side-stepping the explicit statutory prescriptions for the counting of ballots. Respondent’s actions of convenience clearly deviate from the cautious procedures prescribed by law. Yet again, no evidence of tampering was presented which might call into question the validity of the actual ballots counted at the different polling stations. Nor was any evidence of fraud or laxity presented that might have presented clear and convincing evidence of uncertainty, or at least cast doubt, as to the ballots’ true security.
There may be specific cases where enough mistakes on the part of the election officials cause uncertainty in the election result. In this case, however, there is no showing that Respondent’s statutory noncompliance caused an uncertain election result warranting a new or runoff election, nor any evidence of fraud or tampering on the part of Respondent or his election officials in the handling of the absentee ballots. We may not, therefore, void the ballots, nor invalidate the gubernatorial Election 2000 on the third ground.
*29IV. Overage of Voters in Leone
Petitioners claim that the overages and underages amongst the various polling stations cumulatively render the election result uncertain. In particular, Petitioners point to the polling station in Leone that reported an overage of 255 votes. We find this overage, as well as those of other polling stations, to be sufficiently accounted for by the election record despite procedural lapses by election officials that caused the reported overage in the first place.
A. Leone
An overage of votes occurs when “there are more ballots than the poll book calls for.” A.S.C.A. § 6.0802(a). In Leone, there were 255 more ballots than reflected by the number of the voter signatures in the poll book. This large discrepancy is accounted for by the facts.
On November 7, 2000, an election official at the Leone polling station failed to have individual voters sign the poll book. Instead, she crossed out the voters’ names with a yellow highlighting pen when they appeared and identified themselves. Voters’ names were also openly called out and checked by the partisan poll watchers. Some 247 individuals voted in this manner before the issue was brought to the Leone team leader’s attention.
Electors are mandated to sign the poll book under A.S.C.A. § 6.0706, and ordinarily, the number of “ballots the poll book calls for” is evidenced by the number of signatures in poll book. There is caselaw in some jurisdictions that holds that the statutory requirement of signing a voter registry is directory rather than mandatory, and so the failure of voters to sign a poll book does not render the votes illegal. See, e.g., Jackson v. Maley, 806 P.2d 610 (Okla. 1991). We do not choose to rule that highlights may substitute for signatures under our local statutes. Notwithstanding the election official’s mistake, no challenges were made to the Leone voters who appeared and voted, partisan poll watchers were able to verify the number and identity of voters on their own lists, and no additional evidence has been presented suggesting that the names of people highlighted on the official roll are other than qualified electors who appeared and voted. Therefore, we find narrowly that in this particular case, the highlighted names account for the 247 missing signatories and alleged overages in Leone.
B. Reconciling the Reported Overages and Underages
The initial report of 438 overages and underages has been reconciled to the satisfaction of this Court as having been constituted by: (1) the highlighted non-signatures in Leone, (2) an overage due to mistaken *30double counting and reporting of Aunu'u/Amouli ballots at the Amouli/Auasi/Utumea polling station, (3) mistake in the counting of signatures on the poll book, and (4) bad math. The total overages and underages, after taking into account all of these factors, is 13 uncertain votes. Such a number does not render the 2000 election result uncertain where the leading candidate’s margin above majority is at least 81.
V. Improper Early Closing of Polls in Manu'a
A.S.C.A. § 6.0701 prescribes the hours that the polls shall remain open on Election Day. The provision states:
The polls shall be opened by the district officials at 6 a.m. of the Election Day and shall be kept open continuously until 6 p.m. of that day.
The only exception to the dawn ‘til dusk open poll period is limited to situations where all of the registered qualified electors of each election district have cast their votes. If all voters have cast their votes, “the polls may be closed earlier.” Id. Even then, the votes “shall not be counted until after closing time unless allowed by [Respondent].” Id.
Notwithstanding this mandate, Respondent allowed the early closing of the polling stations on the islands of Manu'a to accommodate the election officials’ return flight schedule. Again, however, Respondent’s statutory non-compliance did not render the election result uncertain, where there was evidence that all of the registered voters on the islands of Manu'a had voted, and where there was no showing that the early closing of the polling stations on the Manu'a islands and counting of the votes affected the election result, even though the Tutuila polling station for Manu'a remained open.
When the polls were closed in Manu'a, at at least one polling station, election officials opened and counted the ballots without affording partisan poll watchers the opportunity to physically examine the ballots. This procedural violation, coupled with the premature closing of the polls and the early counting of ballots, invites public suspicion as to the accuracy of the vote count. Although the numbers of the ballots involved do not sufficiently demonstrate any change in the result of the election, public confidence in the process would seem to require a public recount of these ballots in the certification process of the election. We urge, rather than order, Respondent to undertake this course of action in his certification process.
VI. Failure to Provide List of District Officials
Petitioners claim that Respondent failed to select district officials from a *31list of names submitted by each district governor, and also failed to publish the final list of district officials chosen for the 2000 election. ■Petitioners argue that such oversights are contrary to statutory law, and had the effect of influencing the conduct of the election and of stifling “voters free will.”
A.S.C.A. § 6.0402(a) governs the process of selecting district officials. The first part states:
Each district governor shall submit names for district officials within his district to the chief election officer not later than 4:30 p.m. on the 30th day prior to the close of filing for any election. All officials shall be able to read and write both the Samoan and English languages. If any district governor fails to submit the required names by the above deadline, the chief election officer may fill the positions with available qualified persons.
The statute mandates that the district governors submit a list of district officials a month before the election. The statute also gives the chief election officer the express authority to appoint officials if the governors do not name any persons on time. This authority is extended by § 6.0402(b)(2), which enables the chief election officer to “designate more officials than are needed in order to create a pool of qualified district officials who may be assigned to fill vacancies or to perform those duties as needed in any district in their respective county.” Further, § 6.0402(c) bestows the power of appointment upon the chief election officer where vacancies occur due to the “inability, failure, or refusal” of assigned district officials. Statutory law thus contemplates broad latitude for the chief election officer in his task of assigning district officials. The input of district governors is mandatory. Respondent is under legal obligation to solicit a list of names from district governors as per A.S.C.A. § 6.0102, which defines district officials as those “designated by the District Governors.”
Petitioners further claim that Respondent is required by law to publish the list of district officials made pursuant to § 6.0402. None of the statutory provisions cited by Petitioner, however, support this claim. The last sentence of A.S.C.A. § 6.0402 states:
The chief election officer shall make a list of the district officials by representative district not later than 4:30 p.m. on the 10th day prior to any election.
This provision mandates that a list be made, but not that it be published.' Petitioners urge the Court to “give force to the Fono’s command,” and to give the law a purpose “other than to generate a document.” It is not, *32however, for this Court to expand statutory requirements beyond their plain meaning. The legislature may provide for the publication of this list by statute.
Petitioners further argue that A.S.C.A. § 6.0506 requires Respondent to have made the list of district officials available for public review. The statute states:
The register of qualified electors and all records appertaining to the registry of qualified electors, or to any election, in the possession of the board of registration, the district officials, or the chief election officer shall, at all reasonable times, be open to the inspection of any qualified elector.
Id. Contrary to Petitioners’ interpretation of the language of A.S.C.A. § 6.0506, the statute does not mandate that “all records appertaining to .. . the district officials” shall be open to public inspection. The subject of the statute to be made open to the public is plainly and clearly the “register of qualified electors and all records appertaining” thereto. We find that this statutory provision does not require Respondent to make the list of district officials available to the public.
The fact that certain election officials were biased and used coercive means to elicit at least one vote for a particular candidate (though this one vote was later voided and retaken) may indicate that the Election Rule procedures for either choosing or monitoring officials are insufficient. The Court invites the Legislature, author and promulgator of the laws, to address this issue. Such questions of practical policy are not for the Court to decide. . -■
VII. Unaddressed Challenges to Improper or Unqualified Electors
Petitioners argue that Respondent failed to properly address challenges to electors brought prior to and on Election Day. The procedure and grounds for challenging electors is specifically delineated in A.S.C.A. § 6.0223. Challenges to the qualifications of electors may be brought at three separate times: 1) before the election; 2) on the day of the election; or 3) after the election.
If brought before the election, the challenge must be raised, in writing, by a registered qualified elector to Respondent setting out grounds for disqualifying a registered elector for an election district. A.S.C.A. § 6.0223(a). Respondent must immediately notify the challenged elector, and, as soon as possible, investigate and rule on the challenge. Id.
If brought on the day of the election, any qualified elector rightfully in the; polling station may challenge the right of any elector to vote. A.S.C.A. § 6.0233(b). Only two challenges may be brought; either: 1) the qualified elector is not the person he alleges himself to be; or 2) the *33qualified elector is not entitled to vote in the election district. Id. The challenge shall be decided immediately by the district officials, and an appeal may be taken to the board of registration. A.S.C.A. § 6.0223(c).
If brought after the election, the challenge must be brought to the High Court, and the complainant must prove that he or she did not know or could not with due diligence have discovered the alleged grounds for the challenge prior to the elector casting his ballot. A.S.C.A. § 6.0223(d).
A. Thirty-five Challenges Brought Before the Election Day
Late in the day prior to the election, Respondent received Petitioners’ challenge contesting the qualifications of 35 registered electors. Respondent did not notify challenged voters, investigate or rule on the objection. Instead, Respondent explained in a letter to Petitioners, dated November 13, 2000, that Petitioners had ample opportunity to raise challenges on the day of the election. Petitioners failed to challenge these 35 electors on the day of the election.
The language of the statute clearly requires Respondent to rule “as soon as possible.” A.S.C.A. § 6.0233(a). We find Respondent’s delay in responding to Petitioners’ challenge reasonable given the time pressures of preparing for the general election the following day. Additionally, Petitioners were not prejudiced as they had opportunity to raise the challenges on Election Day, but failed to do so.
B. Challenges on Election Day
Respondent’s rules providing for the handling of Election Day challenges circumvented the district official’s decision-making process. The only remedy A.S.A.C. § 3.0710 provides is a direct challenge brought to the Board of Registration. A.S.A.C. § 3.0710 states:
Where a challenged voter is allowed to vote pursuant to ASCA § 6.0233(c), the following steps shall be taken to safeguard the secrecy of the challenged voter’s ballot:
(a) the challenged voter must present his/her Voter Registration Card, and sign the Official Roll;
(b) after the challenged voter has voted, each ballot must be placed in an envelope and then sealed. A separate envelope must be provided for each ballot;
(c) the challenged voter’s Voter Registration Number must be written on the top left-hand comer on the front of each envelope;
(d) the envelope must remain sealed and delivered to the chief election officer;
*34(f) the envelopes will be unsealed and the ballots counted only after the Board of Registration or the High Court has ruled on the challenge.
The Election Rules thus circumvent the statutory right to challenge on Election Day in two ways. First, A.S.A.C. § 3.0710 provides that challenges brought on Election Day shall be sealed and taken to the Board of Registration, rather than being decided immediately. Second, the administrative mle removes the decision-making authority from district officials entirely.
Notwithstanding Respondent’s statutory non-compliance with Election Day challenge procedure, this mistake did not render the election result uncertain. Electors lawfully at the polls on Election Day were permitted to challenge, and did, in fact, wage at least 22 challenges. Even if these challenges were treated in the light most favorable to Petitioners, and added to the overall election result as if they were votes for Petitioners, the election result would not be rendered uncertain.
VIII. Wrongful Acts and Election Fraud Generally
Petitioner claims that the general effect of the statutory violations, wrongful acts and “widespread irregularities in the entire voting system” makes the election uncertain. (Pet’r’s Tr. Br.) According to statute, we may mle that the cumulative effect of any number of claims can change an election result even if any of the individual claims is incapable of doing so on its own. Again, we look to the standard of review set forth in A.S.C.A. § 6.0903(c).
It is possible for. fraud to be so rampant, and corruption so widespread, that the “correct result” is impossible to ascertain. Certainly, Petitioners have demonstrated that a number of irregularities and contraventions of the law occurred in the conduct of this election: at some polls, campaign members with political logos on their shirts sat in election officials’ chairs for many minutes at a time, campaign leaders greeted voters and shook hands outside of polling stations, and partisan camps entered polling stations to bring food to various election officials. However, Petitioners have failed to specifically, clearly, and convincingly demonstrate that these activities affected the vote. They may argue that the campaigning influenced the air, created a mood, or was annoying, but according to the standard of review set by the laws of American Samoa, this is not enough. Even considering all evidence in the light most favorable to Petitioners, we cannot find the election result uncertain.
*35Order
For the foregoing reasons, Petitioners’ complaint is dismissed. Judgment shall enter accordingly.
It is so ordered.
A.S.C.A. § 6.0903(a) refers election contests to the Appellate Division of the High Court, which received evidence in its role as fact-finder.
A.S.C.A. § 6.1101(c) distinguishes between three categories of absentee ballots and applies different procedures for each. Off-island absentee ballots are received from electors away from American Samoa because of U.S. or A.S.G. government employment, active military service, or study abroad (“off-island”). A.S.C.A. § 6.0903(c)(1). Temporary absentee ballots are received from electors absent from the territory for reasons due to medical treatment, military-related assignments, employment, or vacation (“temporary”). A.S.C.A. § 6.0903(c)(2). Local absentee ballots are those received from voters present in the territory on Election Day, but unable to make it to the polls because of confinement in a hospital, public institution, or home; a religious belief; or employment as an election official (“local”). A.S.C.A. § 6.1101(c)(3).
Specifically, a group of election officials went to collect the vote of an elderly woman in Ta'u who was confined to bed, and effectively instructed her who to vote for. Her daughter reported this activity to Petitioners’ campaign committee, who reported it to Respondent on Election Day. Respondent voided that ballot, and dispatched election officials to the voter’s home to collect another vote.
Reviewer explains that this overage represents the ballots cast and counted at Aunu'u/Amouli, that were again counted at Amouli/Auasi/Utumea.
The Leone poll accounting report cites 483 signatures and 247 highlighted names, totaling 730. The Reviewer counted 746 signatures and highlights total. The 16-vote difference is not explained in the evidence presented.
If the election result is corrected to reflect the 23 double-counted votes (where Petitioners received 10 votes and the leading candidates 13), the total number of voters becomes 12,034, the 50% majority becomes 6017, and hence the margin to majority is reduced by only one vote, to 81.
If the challenged votes are added to the total votes cast, taking into account the Aunu'u/Amouli double-counting, the total votes cast numbers 12,056. Even assuming that all 22 excluded votes were cast for Petitioners, again taking into account the double-counting, then the leading candidates’ total would be 6098, and the margin to the 50% majority of 6028 would be 70.
A.S.C.A. § 6.0903(c) states: “[A] judgment may invalidate the general election on the grounds that a correct result cannot be ascertained because of a mistake or fraud on the part of the district or election officials; or because it cannot be determined that a certain candidate, or certain candidates, received a majority or plurality of votes cast and were elected. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486634/ | ORDER DENYING MOTION FOR STAY AND DISMISSING INTERLOCUTORY APPEAL
Both Appellants Petelo Lafaele (“Lafaele”) and Eti Noa (“Noa”) (together “Appellants”) are awaiting trial in District Court for Class A Misdemeanor offenses, which are punishable by up to one year in jail and/or a $1000 fine. They each requested a jury trial. The District Court, in a written pre-trial order dated July 13, 2000, denied Lafaele’s request on the premise that Lafaele had neither a constitutional nor statutory right to trial by jury. On August 18, 2000, the District Corut, for the same reasons, denied Noa’s motion.
Appellants move this Court for a stay of their bench trials pending their appeal of the District Court’s pre-trial orders denying their asserted right to be tried by a jury.
The High Court has jurisdiction to review only the “final decisions” of the District Court. A.S.C.A. § 3.0309. The question arising here is whether the District Court’s pre-trial orders denying Appellants’ asserted right to a jury trial is “final” within the meaning of A.S.C.A. § 3.0309.
We have held that a pre-trial or interlocutory order is final if it falls within the collateral order exception; that is, the order resolves an issue separate and distinct from the question of guilt or innocence. Kim v. Am. Samoa Gov’t, 17 A.S.R.2d 193, 195 (App. Div. 1990). A pre-trial or interlocutory order within the collateral order exception must
(1) conclusively resolve the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from the final judgment in the main case.
Id. (quoting Van Cauwenberghe v. Biard, 486 U.S. 517 (1988)); see also Coopers & Lybrand v. Livesay, 458 U.S. 263 (1978).
*37In Flanagan v. United States, 465 U.S. 259 (1984), the Supreme Court held that a pre-trial order disqualifying counsel does not fall within the collateral order exception to the finality rule. The Court reasoned, that like virtually all rights of criminal defendants, the right not to have counsel disqualified is merely a right not to be convicted in certain circumstances and not a right not to be tried. Id. at 264; see also Kim, 17 A.S.R.2d at 196. The Supreme Court discussed three types of pre-trial orders in criminal prosecutions that the Court has recognized as satisfying the collateral order exception standard. These include pre-trial orders denying bail reduction, indictment dismissals on double jeopardy, or speech or debate grounds. These decisions involve an asserted right, the legal and practical value of which would be destroyed if not resolved before trial. Flanagan, 465 U.S. at 264.
The denial of an alleged right to a jury trial is not analogous to the denial of bail reduction, an indictment dismissed on double jeopardy,9 or speech or debate grounds. Rather, akin to the right not to have counsel disqualified, the asserted right to a jury trial is merely a right not to be convicted in certain circumstances. Furthermore, the District Court’s pre-trial orders denying Appellants’ jury trial requests are not “effectively unreviewable” as Appellants are not precluded from raising their claims subsequent to final judgment.
Therefore, we hold that the District Court’s pre-trial orders denying Appellants’ requests for a jury trial are not collateral issues within our jurisdiction. To hold otherwise would invite piecemeal appellate review not contemplated by the Legislature’s statutory restriction that we review only “final decisions” of the District Court. A.S.C.A. § 3.0309; see also Flanagan, 465 U.S. at 293.
Since we are without jurisdiction to review this matter, Appellants’ motion for a stay should be denied, and their interlocutory appeals should be dismissed. Accordingly, appellants’ motions to stay their bench trials are hereby denied and Appellants’ interlocutory appeals are dismissed.
It is so ordered.
Appellants misread Abney v. United States, 431 U.S. 651 (1977) for the broad proposition that Appellants’ right against double jeopardy protects them from being tried by judge, and subjected to a second trial by jury. In Abney the lower court’s pre-trial order denied dismissal of an indictment on double jeopardy grounds, an asserted right which if denied interlocutory review and the case allowed to go to trial would be effectively unreviewable upon final judgment. In this case, the double jeopardy clause does not preclude appellants’ re-trials after successful bench trial convictions. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486635/ | OPINION AND ORDER
Plaintiffs are the parents, brothers, and sisters of decedent Raymond Tauese Schwenke (“Raymond”). They sued defendants American Samoa Government (“ASG”) and Toleafoa Leiato (“Leiato”) for damages. They allege that ASG’s employees were negligent in failing to protect Raymond from committing suicide while Raymond was a prisoner at ASG’s Correctional Facility (“CF”), and that this negligence was the proximate cause of Raymond’s death.
Plaintiffs are pursuing their cause of action under the Government Tort Liability Act, A.S.C.A. §§ 43.1201-.1213. This act provides for an exclusive remedy against ASG and insulates ASG’s officers and employees acting within the scope of their employment from suit. A.S.C.A. § 43.1207. Leiato, who was the CF’s warden at the time of Raymond’s death, was such an employee. Thus, on June 8, 1998, on ASG’s motion and with plaintiffs’ concurrence, the Court dismissed the action against Leiato.
The case proceeded to trial on August 19 and 20, 1999. At the beginning of the trial, ASG raised the sufficiency of plaintiffs’ designation of Raymond’s next of kin in wrongful death actions, as required by A.S.C.A. § 43.5001(b). Although the case caption is general, the body of the complaint does identify Raymond’s parents, Pisa Schwenke (“Pisa”) and Sina Schwenke (“Sina”), and siblings, Pisa Pisa, Jr. (“Pisa, Jr.”), Joanna Levi (“Joanna”), Henry Schwenke (“Henry”), Jerry Schwenke (“Jerry”), Sulusi Schwenke (“Sulusi”), Siulagi Schwenke (“Siulagi”), and Afele Schwenke (“Afele”). No evidence of other next of kin was presented during the trial. Thus, we hold that the designation of Raymond’s next of kin is sufficient for purposes of this case. See Saufo'i v. Am. Samoa Gov’t, 14 A.S.R.2d 51, 52-53 (Trial Div. 1990).
I. Facts
The parties stipulate that following his conviction of assault in the third degree, Raymond was a prisoner at the CF serving a five year term of *44detention as a condition of probation; that on July 1, 1995, at 3:00 a.m., Raymond attempted to commit suicide by hanging himself with electric wire; and that later the same day, at 4:47 p.m., Raymond committed suicide by hanging himself with a rope.
Other relevant facts are not seriously in dispute. Raymond began serving his five year detention period on May 22, 1995. Raymond escaped from the CF on June 24, and was returned to the CF on June 28. Raymond was then placed in a holding cell, which allowed for closer monitoring than other cells. The holding cell was visible from the CF’s receiving desk 30 or less feet away. Because the floor in the holding cell was frequently wet from flushing the toilet, a cot for sleeping, rather than a mat, was brought to the cell. However, the cot frame was tied together with electric wire and fishing net rope.
At 3:00 am, on July 1, 1995, during a routine check, CF Officers Solovaa Mageo and Liaiga Seui discovered bruises on Raymond’s neck. They searched Raymond’s cell and discovered a piece of electric wire and a piece of glass, which they removed from the cell. They found nothing else unusual in the cell. Raymond indicated that the glass was simply a mirror. The CF officers concluded that Raymond has attempted to kill himself using the electric wire.
The watch commander that night, CF Officer Fauamoli Taufete'e Ah Mu (“Ah Mu”) counseled Raymond for approximately 10 to 15 minutes. She spoke to Raymond about the marks on his neck and advised him that it was against God’s will to commit suicide. She also reminded him of his family. According to Ah Mu, Raymond seemed to be “O.K.” and happy after the counseling. He indicated that he was tired and wanted to sleep. Raymond was returned to the holding cell.
Part of the guard duty at the CF entails checking inmates’ cells every half hour. In actuality, at the time of Raymond’s suicide, cell checks occurred between every half hour and every hour due to the length of time it takes to check all the cells with a duty staff of only two to four guards. The CF officers continued to check on Raymond after returning him to the holding cell. However, this was done more often, approximately every half hour, to ensure his safety. At the end of the shift at 6:00 a.m., Ah Mu informed the incoming watch commander about Raymond’s attempted suicide.
On the afternoon of the same day, July 1, Raymond refused to eat dinner at the 4:00 p.m. regular mealtime. He was last seen alive at approximately 4:25 p.m., when CF Officer Kilisitina Simanu (“Simanu”) checked Raymond’s cell. Simanu then found Raymond, at approximately 4:47 p.m., hung by his neck in his cell. Raymond hung himself with the rope that had been used to tie his cot together.
*45II. Governmental Immunity
Under the Government Tort Liability Act, A.S.C.A. §§ 43.1201-.1213, ASG is generally liable in the same manner and to the same extent as private individuals, but is immune from liability for “any claim based upon the exercise or performance of, or the failure to exercise or perform, a discretionary function or duty of an officer or employee.” A.S.C.A. §§ 43.1203(a), (b)(2). Section 43.1203(b)(2), almost identical to its counterpart in the Federal Tort Claims Act, 28 U.S.C.A. § 2680(a), means that ASG is immune from liability if the activity its officer or employee was performing is deemed discretionary.
This Court’s interpretations have come to differing conclusions as to the proper standard for what constitutes discretionary functions. Two cases, Savage v. Am. Samoa Gov’t, 1 A.S.R.2d 102, 105-06 (Trial Div. 1983) and Ala v. Am. Samoa Gov’t, 2 A.S.R.3d 163, 168-69 (Trial Div. 1998), utilize the traditional distinction between activities at the “planning level” and those at the “operational level.” Under this distinction, actions at the planning stage are considered discretionary and are therefore afforded immunity, while actions undertaken to carry out government programs are not afforded such protection. See Berkowitz v. United States, 486 U.S. 531, 546-47 (1988).
The Savage Court found ASG liable for general failure to provide adequate security measures when its officers and employees knew a particularly vicious stray dog was roaming in ASG’s housing area. The Court found that ASG could not claim discretionary immunity for failure to act in the face of a known danger. Savage, 1 A.S.R.2d at 106.1 Similarly, the Ala Court determined that only governmental action based on considerations of public policy are considered discretionary, and denied immunity for the failure to maintain a public restroom. Ala, 2 A.S.R.3d at 168-69.
The Court revisited the issue of what constitutes discretionary action in the recent case of Gibbons v. Am. Samoa Gov’t, 3 A.S.R.3d 135 (Trial Div. 1999). Gibbons involved the tortious acts of an escaped CF prisoner. In analyzing whether the CF officers’ actions constituted a discretionary function, the Gibbons Court followed the standard enunciated in United States v. Gaubert, 499 U.S. 315, 322-23 (1991). Gibbons, 3 A.S.R.3d at 139. The Gaubert standard is one in which “discretionary functions” were defined as acts which “involve an element of judgment or choice.” Gaubert, 499 U.S. at 322-23. In *46defining discretionary functions in this way, the Gibbons Court rejected the Savage and Ala approach, instead using what it deemed a more flexible standard. This approach allows more day-to-day decisions to be considered discretionary, and thus immune, because it potentially makes any decision that involves a choice or judgment to be immune.
While we agree with the Gibbons Court that discretionary conduct should not be confined to the policy or planning level, we are reluctant to broaden immunity as wide as Gibbons implies may be appropriate. It is true that:
matters involv[ing] basic issues of resource allocation and requir[ing] close judgment calls ... are best left to those trained in the field of penal administration. Within reason, prison officials must be given appropriate leeway to run the Correctional Facility as they deem to be most effective given their available resources; in short, the court will not seize our inevitable advantage of perfect hindsight to hold such decisions unreasonable after the fact.
Gibbons, 3 A.S.R.3d at 140.
However, A.S.C.A. § 43.1203(b)(2) is not reasonably interpreted to provide immunity for every activity in which any choice is made. In determining immunity, it is necessary to look at whether ASG’s officer or employee, regardless of position or rank, was allowed to make independent policy judgments, or was simply carrying out a legal duty. Patterson v. United States, 856 F.2d 670, 674 (4th Cir. 1988).
When prison officials become aware of a dangerous situation, the decision to act is not discretionary. Indeed, the specific actions taken in these situations involve some element of judgment. However, “[wjhatever is done or not done at any institution involves a decision by someone, but this does not mean that all acts are exempt from tortious liability as discretionary.” Cohen v. United States, 252 F. Supp. 679, 687 (N.D. Ga. 1966) (duty of protection and safekeeping of prisoners includes ordinary care in the classification of prisoners and their custody once classified).
It is impossible to precisely delineate where the line should be drawn; it is enough here to say that the duty to exercise ordinary diligence to keep prisoners safe and free from harm, Savage, 1 A.S.R.2d at 106, prescribes a duty to act in the face of a known danger.2 When a *47prison is confronted with a suicidal inmate, there arises a non-discretionary duty to act, and ASG does not have immunity from liability for its officers’ or employees’ actions.
QI. Liability
In a negligent death action, the plaintiff must show a duty owed to the decedent and a breach of that duty that proximately caused the death.
A. Duty
As discussed above with reference to immunity, ASG owes a duty to all prisoners to keep them safe and free from harm. Am. Samoa Gov’t v. Agasiva, 6 A.S.R.2d 32, 39 (Trial Div. 1987). This Court in Rakshan v. Tuilefano, 118 A.S.R.2d 46, 48 (Trial Div. 1991) stated that ASG has an obligation to protect fellow inmates and members of the general public from a prisoner’s harmful acts. Cases in other jurisdictions have found that the duty to use reasonable care in protecting inmates extends to protecting inmates from self-inflicted injury. See, e.g., Scott v. Louisiana, 618 So. 2d 1053, 1056-58 (La. App. 1993); Falkenstein v. City of Bismark, 268 N.W.2d 787, 791-92 (N.D. 1978); Jane M. Draper, Civil Liability of Prison or Jail Authorities for Self-Inflicted Injury or Death of Prisoner, 79 A.L.R.3d 1210 (1977). The duty to protect inmates includes an obligation to protect prisoners from harm they may do to themselves. ASG therefore had a duty to protect Raymond, not only from other prisoners, but also from himself.
B. Breach
The duty to protect prisoners is not absolute, and ASG is not liable for all harm that comes to prisoners, regardless of the cause. Even with the knowledge that a prisoner may be suicidal, ASG does not have an absolute duty to prevent it from happening. ASG will only have breached its duty of care if it knew or should have known of the risk to Raymond and it failed to take reasonable measures to prevent the suicide. Scott, 618 So.2d at 1056.
The CF officers knew that Raymond was a risk to himself, since they knew he had attempted to commit suicide. It is not entirely clear that they understood that Raymond posed an ongoing risk after Ah Mu counseled him. However, they checked Raymond more frequently after his suicide attempt, and knowledge of this attempt was passed on to the *48next shift of CF officers. Regardless, prison officials should know that a prisoner, having demonstrated suicidal tendencies, might attempt suicide again.
We now turn to the question of whether the TCF guards took adequate measures to protect Raymond. The steps taken included 10 to 15 minutes of counseling from Ah Mu, an examination of Raymond’s cell, an increase in the frequency of routine checks of his cell, and passing on information of his attempted suicide to the incoming staff shift. We are mindful that it easier to determine optimal responses with the benefit of hindsight, and are wary of substituting our judgment for that of the CF’s personnel, who must make on-the-spot decisions about the proper course of action. Nonetheless, we find these measures to be inadequate under the circumstances.
The CF officers examined Raymond’s cell, indicating that they knew to search for dangerous items, but they either failed to inspect the cot that was placed in the cell or did not do so thoroughly. A rope tying the bed together would not be something so hidden that it would not be discovered by inspection. In failing to adequately check the bed, they left a rope in the cell, an item similar to the wire which Raymond had just used in an attempt to kill himself.
The failure to check the cot properly is, in itself, sufficient for finding negligence. Other failures also contributed to the inadequacy of the CF officers’ actions to protect Raymond. The CF officers did not obtain counseling services from a mental health professional, conduct a 24-hour suicide watch, or undertake any other substantial action to protect Raymond until his mental health could be assessed. While these oversights alone .might not support a finding of negligence, they underscore the insufficiency of the actions actually taken to protect Raymond.
C. Proximate Causation
To be liable for negligent conduct, a party’s actions must be a “substantial factor in bringing about the harm.” RESTATEMENT (SECOND) OF TORTS § 431 (1977). Even when another person’s actions are a cause of the harm, a party is not absolved of responsibility if that party’s negligence creates the foreseeable risk of harm and is a substantial factor in causing the harm. RESTATEMENT (SECOND) OF TORTS § 442A.
In determining whether or not the actions of the CF’s guards were a substantial factor in causing Raymond’s death, it is not enough to determine that Raymond committed suicide. Instead, we must look at whether or not it was foreseeable that Raymond would harm himself due to the failure of the CF’s officers to remove the rope from his cell. *49Simply stated, if it was foreseeable that Raymond might attempt suicide again, then ASG is liable for its failure to protect him.
It is foreseeable that a prisoner who has attempted suicide would attempt to do so again. See Guice v. Enfinger, 389 So. 2d 270, 271 (Fla. App. 1980) (no duty to remove prisoner’s belt when his suicide was not foreseeable because he had not attempted suicide in the past and had shown no suicidal tendencies). Based upon Raymond’s suicide attempt during the previous night, we find that Raymond’s death by suicide was foreseeable, and that the failure of the CF’s officers to adequately protect him from harming himself was a proximate cause of his death.
D. Comparative Negligence
ASG neither argued nor briefed comparative negligence as an issue, perhaps in expectation of total, undiluted victory. Plaintiffs did not raise the issue, understandably, but perhaps had a similar expectation. In any event, this is a very important issue that requires resolution in this case. Thus, we have considered whether Raymond’s actions constituted negligence that would reduce the family’s recovery. We find that Raymond’s suicide was comparatively negligent under the circumstances, and reduce plaintiffs’ recovery accordingly.
1. Comparative Negligence Generally
Under ASCA § 43.5101, in an action for personal injuries, or where the injuries resulted in death, “the fact that the person injured . . . may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the. court in proportion to the amount of negligence attributable to the person injured . . . .” Although we no longer use the principle of contributory negligence to bar recovery to injured parties or their next of kin in this jurisdiction, it is instructive to look at that principle in determining the comparative degree of fault. Contributory negligence has been defined as:
(a) an intentional and unreasonable exposure of himself to danger created by the defendant’s negligence, of which danger the plaintiff knows or has reason to know, or
(b) conduct which . . . falls short of the standard to which the reasonable man should conform in order to protect himself from harm.
Restatement (Second) of Torts § 925. Recovery should be reduced under the rubric of comparative negligence if a party “voluntarily and intentionally subjects himself unnecessarily to an unreasonable risk or to a dangerous instrumentality or condition, the peril of which is, or should be appreciated by the person injured.” 57A Am. Jur. 2d Negligence § *50860 (1989).
2. Suicide as Comparative Negligence
Several courts have considered whether suicide can constitute contributory or comparative negligence, and they have come to varying results. Several cases have found that plaintiff-decedents may be comparatively negligent when they committed suicide while in custody. In Heflin v. Stewart County, No. 01-A-01-9504-CV-00131, slip op. at 2 (Tenn. App. Oct. 20, 1995), the court found comparative negligence in circumstances very similar to the present case. In that case, the prison knew the decedent was a flight risk, and knew he had attempted suicide once previously. Id. at 2. The court found the county jail liable for decedent’s suicide for the failure of its jail officials to check beds often enough, and then reduced the award by fifty percent based on decedent’s negligence. Id. at 7. Similarly, the majority in Hickey v. Zezulka, 487 N.W.2d 106, 123 (1992) (four judge majority on this issue, listed as concurring opinion), found that a prison guard was negligent for his failure to remove the prisoner’s belt and adequately monitor him, and held that the jury should have been given a comparative negligence instruction regarding the prisoner’s suicide.
Other courts have come to the contrary rule that the suicide of a person in custody cannot constitute comparative negligence. These courts reason that because the duty of care encompasses protection of another from a specific harm, the failure of the deceased to exercise reasonable care in preventing that harm cannot be the basis of a contributory negligence defense. Sauders v. County of Steuben, 693 N.E.2d 16, 21 (Ind. 1998); Cowan v. Doering, 545 A.2d 159, 162-63 (N.J. 1988); Cole v. Multinomah County, 592 P.2d 221, 223 (Or. App. 1979). Under this mle, the patient’s capacity does not bear on the applicability of the suicidal party’s negligence because “the acts which the plaintiffs mental illness allegedly caused him to commit were the very acts which defendants had a duty to prevent, and these same acts cannot, as a matter of law, constitute contributory negligence.” Cole, 592 P.2d at 223.
Several of the courts in the cases rejecting the contributory negligence defense were concerned that allowing contributory negligence would effectively eliminate the' cause of action for wrongful death in suicide cases. See, e.g., Saunders, 693 N.E.2d at 19. One court stated, “because it would serve to excuse defendants’ own failure to exercise reasonable care, such conduct by the plaintiff could not be the basis of a contributory negligence defense.” Cowan, 545 A.2d at 163. This concern, however, does not exist in a jurisdiction that has abolished contributory negligence in favor of comparative negligence because finding the decedent comparatively negligent will not absolve custodians of responsibility. Damages will be reduced in some circumstances, but it *51will not excuse defendants’ failures or bar recovery.
Some of these courts also proceeded under the view that intentional conduct cannot constitute contributory negligence. One court, for example, stated that negligence is qualitatively different from intentional conduct, rendering the two impossible to compare. Hickey, 487 N.W.2d at 121 (three judge concurrence on this issue). It is true that the language of “fault” and “negligence” do not fit well when discussing the decision to end one’s life. However, as discussed above, intentional conduct can constitute contributory negligence when it indicates a disregard for one’s own safety. Furthermore, the goal of comparative negligence is served by allowing a diminution in damages for the intentional conduct of another as well as negligent conduct. The majority in Hickey is in accord:
[The goal of apportioning damages] is thwarted when a slightly negligent defendant is held liable for one hundred percent of the damages caused principally by the wrongful conduct of another. Jurors are capable of reaching a rational and sensible balance between the decedent’s fault and the negligent jailer’s fault. Comparison of “qualitatively different” conduct, which the signers of the lead opinion find to be “not capable of comparison,” is not only possible, but is required by this Court’s adoption of “pure” comparative fault.
Hickey, 487 N.W.2d at 124 (four judge majority on this issue).
3. Standard of Care
A capacity-based standard has now become generally accepted in analyzing the comparative negligence of a mentally disturbed person. See, e.g., Cowan, 545 A.2d at 163; Warner v. Kiowa County Hospital Authority, 551 P.2d 1179, 1187-88 (Okla. App. 1976); Feldman v. Howard, 214 N.E.2d 235, 237 (Ohio 1966); Noel v. NcCaig, 258 P.2d 234, 241 (Kan. 1953). While a person lacking mental capacity to maintain responsibility cannot be comparatively negligent, a person having only diminished capacity may well be capable of negligent conduct. See, e.g., Heflin, No. 01-A-01-9504-CV-00131 at 18; Hickey, 487 N.W.2d at 123 (four judge majority on this issue).
Unlike most of the cases that have dealt with this issue, this is not a situation in which Raymond had been found to have a mental illness. In fact, we have little information on Raymond’s mental state that would aid us in determining his capacity. We simply know that he was a prisoner at the CF, he had recently escaped from there and had been returned, and he had attempted suicide earlier the same day that he killed himself. However, there is no indication that he was insane or that he *52had been suicidal for a substantial period. At the same time, one of the CF officers’ shortcomings in this situation was their failure to seek mental health evaluation and treatment for Raymond.
We have sympathy for any person pained and desperate enough to kill oneself. Nonetheless, in finding comparative negligence, we are acknowledging that Raymond disregarded his own safety and was a significant causal factor in his own death. We find that plaintiffs’ recovery should be reduced by 50%.
IV. Damages
A. Damages Requested
Plaintiffs request $336,000, the money they state Raymond would have made had he been released as expected and had he lived until age 67. Raymond would have been released from CF at age 27, and plaintiffs assume he would have lived until age 67. They state that Raymond made $700.00 per month before he was incarcerated, $300.00 from selling food from the family plantation and $400.00 from selling fish that he caught. To reach the $336,000 figure, plaintiffs multiplied $700.00 by 12 months per year by 40 years.
When Raymond worked at a wage-earning job, he gave the family $200.00 every two weeks. However, before he was incarcerated, he stopped working the job and began working on the family’s plantation. Pisa, who is Raymond’s father and the estate representative, testified that Raymond gave all $300.00 of his farming revenue each month to his parents.
Plaintiffs also note that they may receive compensation under A.S.C.A. § 43.5001(c) for loss of love and affection, but do not request a specific amount.
B. Damage to Plaintiffs
Under A.S.C.A. § 43.5001(c), the claimants in a wrongful death action may receive compensation for both “pecuniary injury and loss of love and affection, including: . . . loss of society, companionship, comfort, consortium, or protection; . . . [and] loss of filial care or attention.”
1. Pecuniary Injury
The claimants’ pecuniary loss is the value of the decedent’s estimated annual financial benefit to the claimants for as long as such benefit could have been expected to continue. Fa'avae v. Am. Samoa *53Power Auth., 5 A.S.R.2d 53, 56 (Trial Div. 1987). The Fa'avae Court allowed for $1,000 per year, and determined the duration of the payments based on the estimated life span of the parents, not the decedent, because the decedent would have only paid money to the parents for the length of the parents’ lives. Id.
a. Parents
Since Raymond provided $200.00 each month to his parents while earning wages and $300.00 when working on the farm, $250.00 per month is a reasonable estimate of the average amount Raymond would have given them, or $3,000 per year. While it is never comfortable to estimate how long someone will live, we may only provide damages for pecuniary loss dining the lives of the parents. Pisa is 63 years old, and it is reasonable to estimate that the parents will live another 20 years. Dept, of Commerce, Research and Statistics Drv., Am. Samoa STATISTICAL DIGEST, tbl. 2.18 (1997) (life expectancy for a male, ages 60-64, is 17 years and life expectancy for a female, ages 60-64, is 21 years). Raymond would have been released in approximately five years, leaving 15 years to help support his parents. The Court therefore will allow for 15 years’ support at $3,000 per year, making $45,000 total.
Money recovered now is worth more than if the decedent had provided it years in the future. It is therefore proper to discount recovery to the money’s present value. For example, the Fa 'avae Court discounted the value of recovery as follows: the Court estimated 25 years of $1,000 payments, making recovery $25,000, but reduced the amount to $16,000 by discounting the present value, using an interest rate of 6% and assuming an unchanged inflation rate. Fa 'avae, 5 A.S.R.2d at 57.
Once the appropriate discount percentage is assessed, the present value of periodic payments for a specified future period can be determined mathematically. Selection of the appropriate discount percentage is anything but an exact process. However, we believe that since Fava’ve was decided, economic conditions in the Territory, in terms of interest and inflation rates, have not dramatically changed and will not do so in the foreseeable future. We are also cognizant of some inherent doubt or risk that, given his history as a wage earner and farmer, Raymond would actually have been able to support his parents continuously as much as the amount specified by the Court for 15 years. Considering these factors, we find that a 5% discount rate is appropriate. Using that rate, and applying an applicable mathematical table, we have determined that the present value of the $45,000 that would have been paid over 15 years is $25,000.00.3
*54b. Siblings
Parents should generally receive a larger share than siblings based on pecuniary injury because decedents are more likely to support parents than siblings. See Saufo'i v. Am. Samoa Gov’t, 14 A.S.R.2d 51, 53 (Trial Div. 1990). With the exception of Siulagi, his 16 year old sister, the siblings are all older than Raymond, who was 22 at the time of his death.
All of Raymond’s siblings are or will be adults by the time Raymond would have been released from his CF detention period. As there is no evidence that Raymond supported them financially prior to his incarceration, we find that they are unlikely to have received financial support from him after his release. The siblings therefore will not be awarded any damages for pecuniary losses.
2. Loss of Love and Affection
It is nearly impossible to provide standards for determining amounts for non-pecuniary losses, and placing a value on the loss of a. loved one is speculative, at best. Siblings are ordinarily entitled to recover for wrongful death even though a parent may be living, provided that they can show the requisite injury. Saufo'i, 14 A.S.R.2d at 53. As with pecuniary injury, this Court has tended to award more to parents than siblings. Id. ($18,037.50 total to the parents and $3,000 each to four siblings); Galo v. Am. Samoa Gov’t, 10 A.S.R.2d 94, 98 (Trial Div. 1989) ($18,000 total to the parents, $3,000 to one sibling, and $2,000 to another sibling).
We find that Raymond’s parents are together entitled to $10,000, Siulagi, the 16 year old sister, is entitled to $2,500, and the other siblings are entitled to $1,000 each, making $6,000 total for these six siblings. One sister, Joanna, is now deceased, so her share shall be distributed to her estate.
3. Pain and Suffering
The estate is also named as a party, and may recover as the successor in *55interest to a claim Raymond would have had for his pain and suffering. ASCA § 43.5002; Galo, 10 A.S.R.2d at 97-98 ($4,000 for both pain and suffering and funeral expenses in an infant’s death). Raymond would have had a claim for his pain and suffering. It is impossible to determine how long Raymond suffered before his death. We assume his death came quickly, however, and award $3,000 to Raymond’s estate for his pain and suffering.
C. Summary of Damages
We summarize our damage calculations as follows:
Pecuniary Loss:
Parents (present value of $45,000)............$25,000
Siblings ............................. 0
Loss of Love and Affection:
Parents.................................. 10,000
Sister Siulagi............................. 2,500
Other siblings (at $1,000 each)............... 6,000
Pain and Suffering:
Estate of Raymond Schwenke................ 3.000
Total before comparative negligence adjustment: $46,500
Total after comparative negligence adjustment: $23,250
Order
Plaintiffs shall recover from ASG damages in the total amount of $26,500 for the wrongful death of Raymond. This amount shall be apportioned among and paid to the plaintiffs, as follows:
Parents Pisa and Sina......................$17,500
Sister Siulagi............................. 1,250
Brother Pisa, Jr............................ 500
Sister Joanna’s estate...................... 500
Brother Henry............................. 500
Brother Jerry.............................. 500
Brother Sulusi............................. 500
Brother Afele.............................. 500
Raymond’s estate.......................... 1.500
Total $23,250
ASG shall pay the total judgment amount into the Court’s registry. The Clerk of the Court shall then distribute the funds to plaintiffs, according *56to ‘their respective entitlements. Until she reaches majority or is otherwise emancipated, however, the Clerk of the Court shall retain Siulagi’s share of the funds in the Court registry. A guardianship of Siulagi’s estate is created, with Pisa and Sina as the guardians, and the Clerk of the Court shall establish a separate probate file for this purpose. Prior to her majority or emancipation, funds in the guardianship estate shall not be released except upon the application of at least one of the guardians and the prior approval of a justice of this Court.
Judgment shall enter accordingly.
It is so ordered.
The Savage Court also held, alternatively, that ASG was not immune from tort liability when its activity was proprietary in nature, and found that the operation of ASG’s housing for its employees was such an activity. Savage, 1 A.S.R.2d at 107.
Under federal law, there is a duty requiring the “exercise of ordinary diligence to keep prisoners safe and free from harm.” 18 U.S.C.A. § 4042. American Samoa has no equivalent statute, but that does not mean *47that ASG has no duty with respect to prisoners. ASG has a duty to protect prisoners against assault and injury by other prisoners, Am. Samoa Gov’t v. Agasiva, 6 A.S.R.2d 32, 39 (Trial Div. 1987), and the federal standard is instructive in this respect.
For this purpose, we used a computerized net present value (NPV) function to calculate the present value from the interest rate and *54payments. More specifically, we calculated the net present value of $250.00 per month for 15 years at 5% annual interest (.4167% monthly interest, calculated by dividing 5% by 12 months), beginning in five years. The payments and interest rate were set to zero for the first five years (60 months), the years Raymond would have been incarcerated. For tile following 15 years (180 months), we used the .4167% monthly interest rate and $250.00 monthly payment. The total present value came to $24,633.65, and this figure is properly rounded off for simplicity to $25,000. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486636/ | ORDER DENYING MOTIONS TO WITHDRAW GUILTY PLEAS AND DIRECTING RESENTENCING
On August 9, 1999, Defendant Manaia Pearson (“Pearson”) moved to withdraw his guilty pleas. During his sentencing on August 2, 1999, Pearson orally made the same motion, arguing ineffective assistance of counsel. He made the present motion on this ground for reconsideration of the Court’s denial of the oral motion on August 2. Pearson also sought our reconsideration of the judgment and sentence to the same end, arguing breach of the plea agreement during sentencing by Plaintiff American Samoa Government (“ASG”).
Background
The plea agreement filed in these consolidated actions on June 11, 1999 was signed by Pearson, Assistant Public Defender Patricia Penn (“Penn”), Pearson’s counsel at that time, and ASG’s counsel. The agreement provided for Pearson’s proposed pleas of guilty in CR No. 48-97 to the crimes of attempted burglary in the second degree, Count 1 of the Information as amended, and unlawful use of a weapon, Count 3 of the Information; and in CR No. 23-99 to the crime of attempted flight to avoid prosecution, Count 1 of the Information as amended. Upon the Court’s acceptance of these pleas, ASG agreed to move for dismissal of the remaining counts in the Information in CR No. 48-97.
The plea agreement further stated that ASG would limit its sentencing recommendation in CR No. 48-97 to support of the probation officer’s recommendation set forth in the presentence report, but that each side would be free to make its own sentencing recommendation in CR No. 23-99. The agreement expressly recognized that sentencing recommendations were not binding on the Court, and that the Court retained complete discretion to impose any punishment authorized by law.
In addition, the plea agreement provided that during the Court’s inquiry into the facts of the offenses for the basis of the guilty pleas, Pearson would testify completely and truthfully about his knowledge of the removal of ASG’s file in CR No. 48-97 from the Attorney General’s *59Office. Pearson was also to so testify, if necessary, at the preliminary examination and trial of any criminal prosecution for the file removal.4 The agreement stipulated that ASG would not prosecute Pearson for any crime he may have committed in connection with the file removal.
On June 22, 1999, the plea agreement was presented to the Court. The Court ascertained that Pearson knew the nature of and maximum punishments for the offenses to which he agreed to enter pleas of guilty, admonished him of his constitutional rights in criminal prosecutions, and determined that he was not induced to enter the proposed pleas as a result of the use or threat of force against his person or of improper promises. We advised him that sentencing was in the Court’s sole discretion and he would not be allowed to withdraw his guilty pleas if the Court did not accept counsel’s sentencing recommendations. Pearson entered pleas of guilty and testified as proposed by the agreement. We found that his pleas were entered knowingly and voluntarily, with an attorney’s advice, and upon a factual basis. We also granted ASG’s motion to dismiss the remaining counts in CR No. 48-97.
On July 19, 1999, the initial date scheduled for sentencing, Pearson orally requested that he wanted counsel Penn replaced. We rescheduled sentencing to July 29, 1999 and directed Penn to file a proper motion to substitute counsel. That motion was filed on July 27, 1999, with Pearson’s handwritten request attached. Sentencing was postponed to August 2, 1999. On August 2, Pearson separately filed another handwritten motion to substitute counsel. We denied both motions. Pearson then orally moved to withdraw his guilty pleas, alleging ineffective assistance of counsel. We denied that motion. The Probation Officer left the sentence up to the Court without any specific recommendation in the presentence report or at the sentencing. ASG recommended maximum, consecutive sentences of five years imprisonment each for the three offenses. Although ASG’s recommendation was only incidental to our sentencing decision, we did *60sentence Pearson to the maximum of five years’ imprisonment on each of the three offenses, to run consecutively.
On August 9, 1999, Penn timely moved to reconsider the judgment and sentence and the motions to substitute counsel and to withdraw the guilty pleas. She also separately moved to be replaced as counsel. On August 11, 1999, we granted the motion to substitute counsel and scheduled due dates for filing briefs on the remaining two issues for reconsideration, Pearson on August 30, 1999, and ASG on September 8, 1999. Pearson’s option to file a reply brief was left open. On August 13, 1999, Pearson’s present counsel was appointed. Pearson also filed another handwritten motion to vacate the judgment and sentence. Pearson asked to withdraw his guilty pleas, again on grounds of ineffective assistance of counsel and added breach of the plea agreement by ASG’s counsel. Pearson’s present counsel filed a brief on August 30, 1999 that addresses these grounds.5 Our discussion of the various pending motions will deal with these issues. Arguments were heard in due course on December 9, 1999, with Pearson and both counsel present.6
Discussion
A. Ineffective Assistance of Counsel
Pearson argues that Penn, his prior counsel, rendered ineffective assistance as his attorney in several particulars urged in his handwritten brief filed on August 13, 1999, and his present counsel's brief filed on August 30, 1999. He asserts that he wished to proceed to trial. However, Pearson claims that he was never able to thoroughly discuss the case with Penn and was thus deprived of adequate opportunity to develop possible.defenses to the charges against him. Instead, he states that Penn merely advised him that any judge would find him guilty and that this advice instilled in him fear of greater punishment. The situation led to the plea agreement. Pearson firrther asserts that Penn still did not fully advise him on the nature of all the charges against him, especially those to which he plead guilty, or the plea taking process, to enable him to make an informed decision about entering guilty pleas. He claims that *61Penn only urged him to plead guilty to lower possible penalties and gain dismissal of some charges. He also states that Penn met with him only once after he entered the guilty pleas and did not give him a copy of the plea agreement until the night before the sentencing. In sum, Pearson claims that he received such ineffective assistance of counsel that his guilty pleas were effectively coerced and were not freely and voluntarily made. He therefore argues that he should be allowed to withdraw his guilty pleas.
The burden is on Pearson to show both that his counsel acted incompetently and that counsel’s error would likely have resulted in a different outcome. Saucily v. Tu'ufuli, 6 A.S.R.2d 15, 20 (Trial Div. 1987). In order to overcome the strong presumption of effectiveness, a defendant attacking counsel’s effectiveness must show specific unreasonable errors and a reasonable likelihood that absence of those errors would have changed the result of the case. Id. An attorney’s legal advice is unconstitutionally deficient if it fails to meet the standard of “a reasonably competent attorney” in a criminal case. McMann v. Richardson, 397 U.S. 759, 770 (1970).
Counsel can meet the constitutional standard for effective assistance by advising a client to plead guilty if that advice falls within the range of competent representation under the circumstances. Saucily, 6 A.S.R.2d at 20 (quoting United States v. Cronic, 466 U.S. 648, 656 n.19 (1984)). A defendant cannot successfully claim he was coerced simply because he pled guilty after relying on counsel’s recommendation. United States v. Lagrone, 727 F.2d 1037, 1038 (11th Cir. 1984). The fear of receiving a greater sentence does not negate the voluntariness of a plea. Pearson does not allege, nor do we see any evidence to indicate, that his counsel used poor judgment in encouraging him to plead guilty.
The number and length of meetings between a defendant and his counsel do not alone determine whether counsel rendered adequate advice. One meeting between a defendant and counsel may be sufficient to afford the defendant an adequate opportunity to understand the plea. Pearson is an educated college graduate, and the plea agreement in this case was not complex. He has not indicated anything his counsel failed to explain that would have made him change his pleas. Counsel could not have informed Pearson that one possible outcome of pleading guilty would be a maximum sentence recommendation by the prosecutor, because as discussed below, ASG made this recommendation at the sentencing only upon learning of the Probation Officer’s total deference to the Court to fashion the sentence. In fact, counsel’s failure to tell Pearson of this possibility was not a failure by counsel at all.
A guilty plea is valid only if it is voluntarily and intelligently *62made. Brady v. United States, 397 U.S. 742, 748 (1970). A plea meets this standard if it is done “with sufficient awareness of the relevant circumstances and likely consequences.” Id. Pearson’s ineffective assistance argument cannot form the basis of an involuntariness finding, because we have found that Pearson’s counsel did not render ineffective assistance.
Furthermore, other evidence indicates that Pearson entered his plea voluntarily. We fully explained to him the terms of the plea agreement, the nature of the crimes to which he was pleading guilty, and the maximum punishment for those crimes. In addition, Pearson was fully advised of his constitutional rights in criminal prosecutions and that sentencing was in the sole discretion of the Court. Pearson was asked about the use or threat of force, and about any inducements other than the plea agreement to make him plead guilty. Pearson intelligently answered the Court’s questions and gave every indication that he understood both our questions and other statements during the plea taking proceedings.
We find no evidence that Penn rendered ineffective legal assistance. Thus, we will deny Pearson’s motion to reconsider the denial of his earlier motion to withdraw his guilty pleas on this ground. Once again, we find that Pearson knowingly and voluntarily entered his guilty pleas, with a competent attorney’s advice, and upon a factual basis.
B. Violation of the Plea Agreement
In his handwritten brief filed on August 13, 1999, Pearson argued generally that ASG’s counsel violated the plea agreement by failing to limit its sentencing recommendation to the probation officer’s recommendation set forth the presentence report. In his counsel’s brief filed on August 30, 1999, Pearson amplified that argument by stating that the specific violation occurred when ASG’s counsel recommended consecutive terms of imprisonment. At the hearing on December 9, 1999, Pearson added that violation by ASG’s counsel specifically encompassed his recommendation for the maximum sentence on all counts as well. Pearson asserts that ASG should not have made these specific recommendations because ASG agreed in the plea agreement to limit its recommendation to supporting the probation officer’s recommendation in CR 48-97, and on that basis, he is entitled to withdraw his guilty pleas.
ASG filed no opposing brief, but in oral argument at hearing on December 9, 1999, ASG counsel argued that ASG had no duty to refrain from making a sentencing recommendation because the probation officer did not make any recommendation. According to ASG, the agreement not to make a recommendation was based on a condition that never came *63to pass, the condition being that the probation officer make a sentencing recommendation.
In the landmark case of Santobello v. New York, 404 U.S. 257, 262 (1971), the Supreme Court found that when a plea “rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” For a plea agreement to be valid, the government must honor its plea bargain with a defendant. Id. In determining the scope of a plea agreement, we look to the reasonable understanding of the parties. United States v. Carbone, 739 F.2d 45, 46 (2d Cir. 1984).
In Santobello, the Court held that a sentence could not stand when a prosecutor promised to make no sentencing recommendation, but another prosecutor recommended the maximum sentence. 404 U.S. at 262. Similarly, in United States v. Hayes, 946 F.2d 230, 236 (3d Cir. 1991), the Court found that the defendant was prejudiced when the government advocated a sentence within the standard range in the guidelines when it had promised to make no recommendation as to the specific sentence. Cf. United States v. Brummett, 786 F.2d 720, 723 (6th Cir. 1986) (government admonished, but no violation found, when the agreement stated that there would be no recommendation as to the specific sentence and the prosecutor recommended “a lengthy period of incarceration”).
By recommending the maximum sentences for the two offenses in CR No. 48-97, ASG directly contravened the agreement in this case. ASG may not agree to make no sentencing recommendation beyond supporting the probation officer’s recommendation for the two offenses in CR No. 48-97. and then, when the probation officer opted to make no particular recommendation, recommend a sentence, much less the maximum imprisonment for these two offenses. ASG could not go beyond recommending the maximum or some lesser term of imprisonment for the offense in CR No. 23-99. Despite ASG’s contention, an agreement to limit a sentencing recommendation to what was stated in the presentencing report is a promise, not a condition. To allow ASG’s interpretation would violate the unambiguous language of the plea agreement.
ASG also violated the plea agreement by recommending, consecutive sentences for the three offenses. A recommendation for consecutive sentences, in practical terms, is a request that determines the length of imprisonment. See Carbone, 739 F.2d at 47 (violation when prosecutor agreed to make no sentencing recommendation on two counts, but then argued for a split sentence on those counts). To recommend consecutive sentences, other than to run the sentence for the offense in CR No. 23-99, is a request that also violates the plea agreement.
*64ASG’s counsel probably committed the error inadvertently, in likely frustration over Pearson’s relatively uninformative testimony when the guilty pleas were taken on June 22, 1999, and the Probation Officer’s unexpected silence in recommending a sentence. Nonetheless, it is irrelevant whether the breach was intentional or not. United States v. Grandinetti, 564 F.2d 723, 727 (5th Cir.1977). A defendant is entitled to , have the prosecutor live up to the negotiated bargain and a plea that was gained even in part on a prosecutor’s unfulfilled promise violates the defendant’s rights. Santobello, 404 U.S. at 262.
Even when the Court is uninfluenced by the prosecutor’s sentencing recommendation, the interests of justice require that the defendant be entitled to relief. Santobello, 404 U.S. at 262. As the Third Circuit stated, “[t]he doctrine that the government must adhere to its bargain in the plea agreement is so fundamental that even though the government’s breach is inadvertent and the breach probably did not influence the judge in the sentence imposed, due process and equity require that the sentence be vacated.” Hayes, 946 F.2d at 233 (internal quotes and cites omitted). There is therefore no such thing as harmless error in sentencing when a prosecutor has breached a plea agreement.
The Court in Santobello indicated two possible remedies when a plea bargain is violated by the government: specific performance of the agreement by resentencing the defendant or withdrawal of the guilty plea. 404 U.S. at 263. The proper remedy for breach of a promise to refrain from making a sentencing recommendation is resentencing before judges different than those who imposed the sentence. St. James v. People, 948 P.2d 1028, 1033 (Colo. 1997). Pearson is therefore entitled tó resentencing by judges who were not on the sentencing panel on August 2, 1999,. which was comprised of Associate Justice Richmond, Associate Judge Atiulagi, and Associate Judge Sagapolutele. Pearson’s sentence will be vacated for this purpose. Because the Chief Justice has recused himself from this case, Pearson shall be resentenced by Acting Associate Justice Ward and one or two different associate judges.
Pearson’s bail was revoked due to his flight from American Samoa, which is the basis of the prosecution in CR No. 23-99. He is still a flight risk. Moreover, his right to reasonable bail terminated upon the entry of his guilty pleas. Therefore, we will require Pearson to remain in custody without bail pending resentencing.
Pearson’s present counsel has permanently departed American Samoa. Counsel consulted with other attorneys in his law firm during the course of the plea withdrawal proceedings. Because of his familiarity with this case, we will therefore appoint Barry I. Rose as Pearson’s new counsel to conclude these proceedings.
*65Order
1. Pearson’s motions to withdraw his guilty pleas are denied. However, because of the breach of the plea agreement by ASG’s counsel, Pearson’s sentence is vacated, and these actions are transferred to Acting Associate Justice John L. Ward II for resentencing. Since he is still a flight risk, and no longer has any right to bail, Pearson shall remain in custody pending his resentencing.
2. Barry I. Rose is appointed as Pearson’s counsel for further proceedings in these actions.
It is so ordered.
Contemporaneously with the burglary of the Attorney General’s Office, a burglary of the courthouse resulted in the removal of the court’s file in CR No. 48-97. This action was then pending before Chief Justice Michael Kruse, who requested the assistance of the Public Defender to reconstruct the court’s file. Unfortunately, the Public Defender provided the Clerk of the Court with the entire file of his office. The Public Defender’s file may have included confidential attorney-client communications and attorney work product. Although the Chief Justice did not see the Public Defender’s file and the Clerk made copies only of documents in that file that would normally be part of the court’s file, the Chief Justice was concerned about any appearances of any inappropriate judicial conduct and recused himself from further proceedings in these actions. The case was then transferred to this court.
ASG did not file a brief.
Proceedings after August 13, 1999 became intertwined with various considerations and other proceedings, including: Pearson’s handwritten request for leave to do legal research, which was scheduled for hearing on September 13, 1999 and later taken off-calendar; requests -by Pearson’s present counsel for a transcript of the sentencing; unavailability of ASG’s counsel for a time; and the filing of Pearson’s petition for a writ of habeas corpus, which was consolidated with similar writs filed by other inmates in CA No. 116-99, CA No. 117-99, and CA 118-99. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486818/ | *290OPINION AND ORDER
On January 15, 2002, Defendant Winnie Su'apaia (“Winnie”) sought to register a separation agreement (“Separation Agreement”) regarding a house located on the Pulu family’s land. The Separation Agreement was executed between Winnie and Defendant Pulu F. Talalotu (“Pulu”), the sa 'o of .the Pulu family. Plaintiff Michael Pulu (“Michael”) timely filed bis objection to the registration of the Separation Agreement.
In accordance with Á.S.C.A. § 43.0302, this matter was referred to the Secretary of Samoan Affairs. However, after two hearings the parties were unable to resolve their differences. Accordingly, the dispute was referred to this Court under A.S.C.A. § 3.0208(b)(2). Trial was held on July 7-9, 2003. All parties and counsel were present.
I. FACTS AND CONTENTIONS
In 1974, Toe To'oto'o (“Toe”), a member of the Pulu family, constructed the disputed house on the Pulu family’s communal land named “Fitiuli” in Pago Pago. Toe testified that the family sa 'o then in office signed an agreement to separate the house from the land. She claimed that she lost her copy of the separation agreement to hurricane Ofa in 1990 and that the registered agreement was no longer available at the Territorial Registrar’s Office.
We believe that Toe did obtain a separation agreement. The statutory authorization of separation agreements essentially facilitates loans for home construction on communal land. Toe spent more than $50,000 on building the house and, though not expressly said, probably financed at least a portion of this substantial amount for the project. In any event, she believed that a separation agreement was necessary for the house construction. The separation agreement would also have facilitated Toe’s sale of the house to her cousin, Dave Pulu (“Dave”). No family member has ever objected to this sale.
In 1993, Dave purchased the house from Toe for $24,000.1 Dave and *291Toe verbally agreed that payments would be made in monthly installments of $1,000. However, Toe did not enforce the agreement to make monthly payments but, rather, allowed Dave to skip payments until he was financially able to make them. Dave passed away in November of 2001. At the time of Dave’s death, there was an outstanding balance of $1,000 on the house. Michael, Dave’s son, paid Toe this balance on December 11, 2001, a very short time later.
Winnie currently resides in this house with her family. Previously, Winnie and her family lived in California. In 1998, Winnie decided to move back to American Samoa at the insistence of Dave, her brother or at least half-brother. According to Winnie, Dave promised her that he would give her a house if she returned to live in American Samoa and assist in his business here. Winnie claims upon her return to American Samoa, Dave gave to her the house which is the subject of this litigation. Winnie lived in the house, apparently without incident, until Dave passed away in November of 2001.
At some point after Dave’s death, Winnie sought a Separation Agreement from Pulu with respect to the house. Pulu testified that prior to Dave’s death, Dave told him he had given the house to Winnie. Pulu did not consult with Toe or Michael prior to signing the Separation Agreement. Winnie and Pulu executed the Separation Agreement on January 15, 2002, and Winnie offered it for registration with the Territorial Registrar the same day.
Michael objects to the Separation Agreement. He claims the Separation Agreement is invalid because Dave could not give Winnie the house when he still owed Toe $1,000. Michael also claims that Pulu’s decision is invalid because Pulu never consulted with him or Toe prior to signing the Separation Agreement. Michael argues that if the Separation Agreement is upheld, he should receive payment from Winnie for expenses he incurred in 1994 when he and his brothers remodeled the house.2
H. DISCUSSION AND CONCLUSIONS
*292As an initial matter, “the court’s role in intra family disputes is a review one. The court will not substitute its judgment for that of the senior matai, absent a clear abuse of discretion.” Toleafoa v. Imo, 7 A.S.R.2d 117, 124 (Land & Titles Div. 1988); see also Malala v. Temu, 11 A.S.R.2d 137, 142 (Land & Titles Div. 1989) (“Courts will not interfere with the decisions of a sa 'o unless they are arbitrary, capricious, illegal, or abusive of discretion.”). “[T]he general rule [is] that a sa 'o has the authority to make decisions about family land.” Malala, 11 A.S.R.2d at 142. We see no reason to disturb Pulu’s decision in this case.
Michael seeks to invalidate the Separation Agreement because Pulu did not consult with him or with Toe prior to executing the agreement and because he believes Pulu mistakenly found that Dave gave the house to Winnie. We see no reason to disturb Pulu’s decision to execute the Separation Agreement even though he did not consult with Michael and Toe. “[T]he obligation of a sa 'o to discuss family decisions with family members cannot be reduced to a formula.” Id. In this case, the fact that Pulu did not consult with Toe or Michael prior to executing the Separation Agreement is not a reason to render the Separation Agreement invalid.
Pulu’s understanding that Dave gave the house to Winnie is a reasonable one. The conveyance of the house as a gift needs to meet three criteria: (1) that Dave intended to orally convey the house to Winnie; (2) that Dave delivered the house to Winnie; and (3) that Winnie accepted the house. See, e.g., No. 95-011, 1997 WL 33480216, *3 (N. Mar. I. July 25, 1997); 38 AM. JUR. 2d Gifts § 19 (1999). In this case, these three requirements are met.
The evidence demonstrates that Dave intended to give the house to Winnie. “The intention of the donor may be expressed in words, actions, or a combination thereof, and may be inferred from the surrounding facts and circumstances, including the relationship of the parties.” 38 AM. JUR. 2d Gifts § 19 (1999). Dave told Winnie that he would give her a house to live in if she moved from California to American Samoa. She and her husband completely uprooted their lives in California out of respect for her brother Dave’s insistence that she return here to assist in his business and in reliance on Dave’s promise to provide them with a place to live. Winnie’s testimony is credible.
Dave clearly delivered the house to Winnie and she accepted possession. Winnie moved into the house upon her arrival in American Samoa and has been living in the house for several years. See generally 38 AM. JUR. 2d Gifts §§ 22, 33 (1999). Accordingly, we find that Dave gave the house to Winnie.
*293Michael argues that Dave could not give Winnie the house because he still owed Toe $1,000. We disagree. “A grantor may make a gift of encumbered property.” Kiel v. Brinkman, 668 S.W.2d 926, 929 (Tex. App. 1984) (finding a conveyance of land to be a gift even though an unpaid mortgage existed on the property); see also Foley v. Allen, 170 F.2d 434, 437 (5th Cir. 1948) (“We are aware of no rule or principle that prevents the donor from making a valid gift of personal property that is subject to a lien.”). In fact, “[a] donor may make a gift of encumbered property in which the donee agrees to discharge the indebtedness” or the donor may “agree to pay off the indebtedness but he is not bound to pay off the indebtedness unless there is evidence that he intended to pay it.” Estate of Kuenstler v. Trevino, 836 S.W.2d 715, 717-18 (Tex. App. 1982). Accordingly, Dave gave Winnie the house in spite of the one outstanding payment owed to Toe.
There is no evidence on whether Winnie and Dave had any agreement on who was responsible to pay Toe the final payment. Dave continued to make payments on the purchase price after Winnie occupied the house. However, absent sufficient evidence that Dave intended to have his estate or any of his sons to pay any balance owed to Toe after his death, we hold that Winnie received received the house as a gift along with the obligation to pay Toe the final payment. See, e.g., id. at 718. As such, Winnie shall reimburse Michael the $1,000 final payment. See generally RESTATEMENT OF RESTITUTION §§ 1, 43 cmt. d (1937).
Michael also seeks to recover from Winnie the cost of materials and labor he allegedly incurred when he worked on the house in 1994. This he cannot do. Winnie was not even living in the house at the time Michael claims he incurred these expenses. At that time, Dave, as the sole owner of the house, would have received the benefit of this work. Any recovery Michael could potentially collect for this work could only be obtained from Dave.
III. Order
1. Winnie owns the house Dave gave to her. The Territorial Registrar shall register the Separation Agreement, dated January 2001, by and between Pulu, as the landowner, and Winnie, as the house owner.
2. Michael is denied recovery from Winnie of the cost of materials he and his brothers installed in the house. However, Winnie is required to reimburse $1,000 to Michael for the final house payment.
3. Defendants’ request for attorney’s fees is denied. However, they are entitled to recover other costs of suit from Michael, and Winnie may credit her share of the costs against the $1,000 she is obligated to pay *294Michael.
It is so ordered.
It is disputed by the parties as to whether Toe sold the house to Dave or to “Dave and his sons.” Besides the final $1,000 payment, there is no evidence that someone other than Dave made the payments for the house. The facts indicate that Dave and Toe were the contracting parties, and that Dave alone was obligated to pay Toe the purchase price. It is also disputed as to whether Dave and Toe placed a condition on the contract requiring that the house remain with a blood member of the Pulu family. However, even if Winnie is a member of the family (well established) without Pulu blood (in dispute), she has been living in the house for several years without objection from the contracting parties. *291Accordingly, even assuming the blood condition existed, it has been waived with respect to Winnie living in the house.
Specifically, Michael claims that in 1994 he, his father and his brothers spent $22,980 in materials and supplies and $14,400 on labor in order to remodel the house. He submitted an inventory of parts and labor as evidence of his alleged costs. Michael also claims he and his brothers contributed to the $24,000 purchase price. There is no documentary evidence to support this claim other than the check and receipt for the $1,000 final payment. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486819/ | *295OPINION AND ORDER
Historical Background
This is an enduring dispute, spanning generations, between the Liufau family and the Tufaga family of Aua over an area of land in the village bisected by the main east-west highway. The disputed area is claimed by the former as being a part of land- “Leasi,” communal property of the Liufau family, while the Tufaga family claims it as being a part of “Feagai,” communal property of the Tufaga family.
1.1903 Litigation
The parties’ respective predecessors were earlier before the court in 1903 when Tufaga Fa'aso'oso'o and two other matai of Aua village filed suit against Liufau Mativa “claiming ownership to six pieces of land situated in the village of Aua and held in possession of Liufau Mativa of the same place.” Tufaga v. Liufau, 1 A.S.R. 184, 185 (Trial Div. 1909) (hereafter the “1903 case”). Unfortunately for posterity, “[n]o plans were filed but the names of the different pieces [of land] were given as Vaitulitai, Vaituliuta, Leasi, Alele, Lesolo, and Taufusi.” Id. (emphasis provided). Although the 1903 case was decided in favor of the Liufau family, we have today, exactly 100 years later, a quarrel between the parties over the physical location of Leasi. This location dispute has been pending since 1973.
2. Post-1903
From files with the Clerk’s office, we find that the parties’ predecessors had apparently managed to coexist harmoniously until Tufaga Faafua (“Faafua”) offered a Separation Agreement in May 1972 on land he claimed as “Matautu-Feagai.” Liufau Unutoa Sonoma (“Unutoa”) objected claiming that Faafua had encroached on the Liufau family land Leasi. The dispute was referred to the Land and Titles Division and given the docket number LT No. 1279-72.
Apparently, while this Separation Agreement matter was pending, Unutoa commissioned a survey of the area, calling it Leasi, which he offered for registration as the communal property of the Liufau family on November 15, 1973. Evidently, nobody objected to Unutoa’s offer and, consequently, he filed an application with the Land and Titles Division to register his offer. See In re Land Leasi, LT No. 1412-74.
Then, on January 10, 1974, Tufaga also offered for registration his surveyed claim of the land, calling it “Feagai,” and claiming it as his family’s communal land. The result was overlapping surveys before the *296Territorial Registrar. Tufaga’s offer, however, was timely objected to by Unutoa who claimed that Tufaga’s survey encroached on his family’s land Leasi. This dispute was also referred to the Land and Titles Division. See Liufau v. Tufaga, LT No. 1418-74. These matters were eventually consolidated.
We next see that the American Samoa Government (“ASG”) intervened to, as it turns out, mistakenly claim an interest in the shoreline area on the seaward side of the road depicted in both Unutoa’s and Faafua’s respective surveys. Nonetheless, the Court, because of ASG’s claim,3 denied both the Liufau and Tufaga families’ registration offers, as well as Tufaga’s Separation Agreement offer, finding that neither party had proven “a clear right to the entire tract offered.” Liufau v. Tufaga, LT Nos. 1279-72, 1412-74, 1418-74, slip op. at 2 (Land & Titles Div. Dec. 30, 1976).
Following this, both Unutoa and Faafua filed new trial motions; however, while these motions were pending, ASG discovered its mistaken assertion of ownership to the disputed area and moved, ironically on April 1, 1977, to withdraw “on the ground that subsequent evidence . . . has come to our attention clearly indicating] the Government has no interest, except a right of way easement, on the land in question.” The motion was granted and with ASG out of the case, the remaining parties Unutoa and Faafua stipulated in open court on February 6, 1978, “to reopen” the registration matters. These matters have since languished and remained pending.
In 1990, a Tufaga family member, Tagisiaalii Faumuina, began bulldozing inside the disputed area. This action in turn spawned yet another file with the Clerk’s office, see Liufau v. Tufaga, LT No. 23-90. This case resulted in a preliminary injunction against both families from *297any further activity on the disputed land. However, Unutoa passed away that same year and LT No. 23-90 was forgotten until a new generation of family members, as well as another succession of legal advisers, entered the picture. Shortly after Unutoa’s death, Faafua’s successor Tufaga Tavita (“Tavita”), commissioned yet another, and enlarged, survey of Feagai (the “1990 survey”). This time, the survey separately described the area seaward of the highway that ASG had once claimed and subsequently withdrawn from. This 1990 survey was also offered by Tavita for registration, and this offer was objected to by a Liufau family member, Fagamalama Liufau Fuaalau, on behalf of the Liufau family. This new dispute eventually found its way to the Land and Titles Division on April 16, 2003, and was assigned the docket number LT No. 07-03. In the meantime, Unutoa’s son Tanielu had, in 1999, succeeded his father to the Liufau title, while the Tufaga title, left vacant with the passing of Tavita, was succeeded by the present Tufaga Sapati.
These matters finally came to the forefront again after the incumbent Liufau began to build earlier this year within the disputed land area. Following a show cause hearing, Liufau stipulated to stopping his construction work pending final disposition by the Court, and these matters were placed for expedited trial.
Trial was held August 11-14, 2003. Following a subsequent site visit to the disputed area and the filing of the parties’ written final arguments thereafter, these consolidated matters were taken under advisement.
Discussion
As with all these disputes, the best evidence of land ownership in American Samoa is “[ajctual occupation with a claim of ownership.” Lualemana v. Atualevao, 16 A.S.R.2d 34, 43 (Land & Titles Div. 1990). Possession of real property is the best evidence of ownership and carries with it the presumption of ownership. Tuato'o v. Taua'a, 17 A.S.R.2d 163, 166 (App. Div. 1990); see also Muagututi'a v. Savea, 4 A.S.R. 483, 485 (Trial Div. 1964); Soliai v. Lagafua, 2 A.S.R. 436, 438 (Trial Div. 1949); Fa'ataliga v. Fano, 2 A.S.R. 376, 337 (Trial Div. 1948). Indeed, in Tufaga v. Liufau, 1 A.S.R. at 186, the Liufau family’s claim to land ownership, coupled with their actual possession of the disputed lands, prevailed over the Tufaga, Sao, and Maulupe families’ mere claims to ownership based solely on tradition without any “solid foundation of fact.”
1. Findings
In assessing both parties’ opposing versions of the evidence, we find that Liufau’s claim to ownership and actual occupation is better corroborated by credible independent sources. The disputed area today is in large part *298a relatively flat area nestled up against the face of a sheer rock cliff that quite clearly was, as testified to by surveyor Lawrence French, the result of a massive quarrying and' excavation operation in the past. The cliff drops suddenly from a hilly mountainous bush area that ascends steeply inland. Judging from the topography exhibits presented and from our observation of an area adjacent to and outside of the excavation cut, it appears that the excavated area had also descended to sea level following the surrounding contours of the hillside.
Chief Ponausuia Lusi Fale, who is seventy years of age and a life-long resident of Aua except for á fifteen year off-island stint with the United States Navy, testified that he was well familiar with the disputed site having grown up in the area, and having harvested crops, cut firewood, and worked on the disputed site with three of Liufau Tausolia’s children Veni, Siela and Satini; that the land was known as Leasi and was owned by Liufau; and that his family is located immediately to the Pago side of Leasi. Ponausuia further testified that the area had greatly changed after the Navy Seabees had dynamited and excavated Leasi during the second world war, in order to provide fill for a repair base in Atu'u where the canneries are presently located. Ponausuia also testified that the main east-west highway that used to run along the shoreline was subsequently moved further inland such as to traverse Leasi. This relocation of the road occurred shortly after a fatal landslide that not only destroyed certain structures used by the Mormon Church, but also killed thsfaifeau (pastor) and others including a relative of Chief Sao. Ponausuia placed the location of the then Mormon compound at between 50 to 100 feet from the location of Liufau Tanielu’s present disputed construction site. According to Ponausuia, the slide did not affect Leasi.
Ponausuia’s testimony regarding the excavation and the relocation of the main highway was corroborated by seventy-seven year old Chief Saoimanulua Solosolo (“Sao”). Sao, whose predecessor-in-title was a party to the 1903 case that awarded Leasi to Liufau, testified that he too was familiar with the disputed area which he knew to be Liufau’s land Leasi. Additionally, Sao’s testimony was in accord with Ponausuia’s as to the location of the early Mormon Church compound, which he placed to the east of Leasi on an area of land he estimated to be about an acre. Sao also testified as to the occurrence of a severe landslide around 1944 that not only swept away the structures used by the Mormon Church, but also took the lives of his sister and others. Sao likewise affirmed that following the landslide, the coastal road was moved inland bisecting Leasi.
The documentary exhibits received into evidence further revealed that the Liufau family received compensation from the United States Government for crop and other property damage claims on Leasi caused by the war effort. From ASG’s archives came corroborative proof *299relating to property damage claims made and filed by Liufau Tausolia and Unutoa before the War Claims Commission. These exhibits attest to Liufau’s claim for crop destruction, attributed to the “See Bees,” on two acres of Liufau family land referred to as Asi and a 40 x 1600 square yard area of Vaituliuta. Liufau’s testimony was that “Asi” and “Leasi” are one and the same reference, and that the land Leasi derived its name from Asi trees that grew on the elevated slopes of the land. Moreover, these war claims exhibits present and added dimension of credibility to Liufau’s position over Tufaga’s. The latter would have us believe that Least’s seaward side boundary-line runs approximately atop the excavated area. If we accept this, then we must also accept that the war effort included some sort of defense activity up on “two acres” of steep, hilly and elevated terrain. We would also have to accept that the Liufau family had at least “two acres” of compensable food crops growing among the Asi forest on hillside. We find such a state of affairs to be unlikely.
Liufau further testified that the various six tracts of land awarded in the 1903-case were all connected, pointing out that two of these tracts, Vaituliuta and Vaitulitai, were located next to Leasi, with the latter two circumscribing what Tufaga now claims as Feagai. According to Liufau family history, they had long ago relinquished claim to Feagai following a grant of the land by Liufau Mativa to a female family member who haled from either Leone or Se'etaga. Liufau’s father Unutoa had related to him that the relinquished area was surveyed by the Meredith family and that the area surveyed was less than an acre in size. With that family history, the Liufau family has left the Tufaga family’s use of the circumscribed area undisturbed.
Liufau further testified that while growing up in the village during the 1950s, his family had fenced-in the excavated, and disputed, area for use as a piggery enclosure. He further testified that between the pig fence and the road, his family maintained their banana plantations while to the seaward side of the present highway, his grandmother Leutu had openly maintained a sugar cane grove for roof thatching and that subsequently, his father had authorized the building of the village’s first longboat shed in the area. This testimony was not controverted.
By comparison, the Tufaga family’s claim to the overlap area lacks any of the hallmarks of use and occupation, as was established for the Liufau family by independent credible testimony from elderly matai of the village and by documentary exhibits attesting to the Liufau family’s assertion of ownership interests in dealings with the United States Government. Contrast Tagisiaali'i’s opposing testimony on behalf of the Tufaga family, to Liufau’s recollections of life growing up in the area. Unlike Liufau, Tagisiaali'i was not raised in the village of Aua.
*300Moreover, we find fhe Tufaga family’s claim to the seaward side of the road, as reflected in their 1990 resurvey, to be tentative and uncertain; being rather deferential toward ASG that had thirteen years earlier, in 1977, unconditionally abandoned any claim to the area. Contrast the Liufau family’s claim to this area; it has not only remained unequivocal throughout, but the claim is coupled with credible evidence of actual use and occupation.
As cases have long established, a mere claim to land without accompanied use or occupation is insufficient to acquire title thereof. Ilaoa v. Toilolo, 1 A.S.R. 602, 604 (Trial Div. 1938); Soliai, 2 A.S.R. at 438. Like the 1903 case, we also find that Tufaga family’s claim to the overlap is without “solid foundation of fact.” See Tufaga, 1 A.S.R. at 186. What the credible independent corroborative evidence has shown with regards to the Tufaga family’s interests is that they lie east of the disputed land area. As borne out by the testimony of village elders, the extent of the Tufaga family’s use and occupation in the vicinity was concentrated outside of the overlap within an area approximating an acre. This Tufaga area was the early location of the Mormon Church in the village of Aua.
Conclusions
On the foregoing, we are satisfied that the evidence preponderates in favor of the Liufau family’s claim and, therefore, conclude that the disputed overlap area is a part of the land Leasi, belonging to the Liufau family. Title may be registered accordingly to the Liufau family.
It is so ordered.
The claim was apparently based on A.S.C.A. § 37.2050, which reads:
The public highway declared and proclaimed by Regulations No. 15 and No. 16, 1900, enacted 3 September 1900 by B.F. Tilley, Commander, U.S.N., Commandant, and amended by W. Evans, Captain, U.S.N., on 10 May 1921, extending from Blunt’s Point on the southern side of Pago Harbor, toward Observatory Point and around the harbor to Breaker’s Point on the northern side of the harbor, along the shore at highwater mark, of a uniform width of 15 feet distant inland from the shore, the land included in the description being condemned and appropriated for public uses, is recognized as a public highway, and the rights of the government and public thereto is asserted.
The government later discovered that the government road had, since the condemnation action, been moved some distance inland. Thus it had asserted a claim to land that was not subject to the condemnation statute. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486637/ | ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
On November 19, 1999, Plaintiffs Muavaefa'atasi Ae Ae Jr. and Eugene Paul Bailey filed a Motion for Summary Judgment. On December 27, 1999, the Court heard arguments regarding plaintiffs’ motion from counsels Ainu'u, Kappel, and Peter Miller, the last of whom was substituting for David Vargas.
Discussion
Summary judgment is appropriate only when the pleadings and supporting papers show “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” T.C.R.C.P. 56; Etimani v. Samoa Packing Co., 19 A.S.R.2d 1, 4 (Trial Div. 1991). In ruling on a summary judgment motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party’s evidence as true, and draw from such evidence the inferences most favorable to the opposing party. Id.
Plaintiffs’ motion fails to meet the standard for summary judgment on two counts. First, the facts regarding plaintiffs’ injuries, and whether they are sufficient to support a nuisance action, are in dispute. There remain genuine issues as to these material facts requiring more exposition at trial.
Second, even if plaintiffs’ injuries were not disputed, the law regarding the legality of poker machines in the territory is anything but clear. On the contrary, a proper determination of this question turns upon facts and interpretations that are susceptible to multiple meanings. Drawing inferences most favorable to defendants with respect to the legal status of poker machines defeats plaintiffs’ claim of illegality. This *67question of law is therefore not sufficiently settled such that the Court may grant summary judgment.
Order
For the reasons stated above, plaintiffs’ motion for summary judgment is . denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486639/ | ORDER ON DEFENDANT’S ASPA’S MOTION TO STRIKE, AND ON DEFENDANT ASDRO’S MOTION TO DISMISS
Plaintiff McConnell Dowell (“MD”) initiated this action on September 27, 1999. Its complaint alleges eight causes of action against defendants American Samoa Power Authority (“ASPA”) and American Samoa *75Disaster Relief Office (“ASDRO”) arising out of a contractual debacle.
Factual Background
This dispute concerns a contract between the parties to repair damage caused to American Samoa’s electrical distribution system by hurricane Val. This “Hurricane Val Contract” was awarded to MD in 1996, but work did not commence until October 1997, having allegedly been delayed by ASPA’s failure to issue a Notice to Proceed.
From this inauspicious beginning, the contracted project allegedly became mired in a multiplicity of delays and difficulties too numerous and complicated to describe in this order. MD asserts the following eight causes of action arising from those events: (1) Breach of Contract for Interference with plaintiffs performance of the contract and Failure to Cooperate with plaintiff in the performance of the same, (2) Breach of Warranty for the accuracy of construction drawings, (3) Breach of Warranty for the suitability of construction drawings, (4) Cardinal Changes to the contract, (5) Abandonment of the contract, (6) Unjust Enrichment, (7) Detrimental Reliance, and (8) Misrepresentation.
MD made numerous allegations in support of these claims, three of which were objected to by defendant ASPA. More specifically, ASPA takes issue with the sections of these allegations, numbers 29, 30, and 33, that describe the progress of settlement negotiations between MD and ASPA. On November 16, 199, ASPA filed its motion seeking to strike these sections of the allegations from the complaint, under T.C.R.C.P. 12(f), on the basis that they are “immaterial” and would prejudice ASPA at trial.
ASDRO filed a T.C.R.C.P. 12(b)(6) motion to dismiss all claims on November 17, 1999. MD countered with a memorandum in opposition on January 21, 2000. Counsel submitted the matter on briefs at a hearing held January 24, 2000.
Discussion
A. ASPA’s Motion to Strike
Motions to strike are generally disfavored and will not be granted unless the allegations’ supporting information fulfills two criteria. First, it must have no relation to the controversy, and second, it must be unduly prejudicial. Circuit Sys., Inc. v. Mescalero Sales, Inc., 925 F. Supp. 546, 548 (N.D. Ill. 1996).
On the first point, ASPA must demonstrate “that no evidence in support of the allegations would be admissible [at trial].” Laverpool v. *76New York City Transit Auth., 760 F. Supp. 1046, 1060-61 (E.D.N.Y. 1991). ASPA attempts to meet this requirement by asserting that evidence of the negotiations described in the allegations would be inadmissible under T.C.R.Ev. 408. Rule 408 excludes “evidence of conduct or statements made in compromise negotiations” in hopes of promoting negotiated settlements of disputes.
The negotiations described in the disputed allegations constitute “compromise negotiations” as contemplated by Rule 408. Although the parties may not have been involved in a legal dispute when these negotiations occurred, T.C.R.Ev. 408 can exclude evidence of negotiations occurring before legal action is contemplated. See Affiliated Mfrs., Inc. v. Aluminum Co. of Am., 56 F.3d 521, 527-28 (3d Cir. 1995).
However, T.C.R.Ev. 408 excludes evidence of compromise only when offered “to prove liability or invalidity of the claim or its amount.” The rule “does not require exclusion when the evidence is offered for another purpose . . . .” Id. In the present case, MD has alleged that ASPA made misrepresentations and failed to negotiate in good faith. Evidence regarding the conduct of the negotiations mentioned in the contested allegations will be central to proving these claims, and is thus admissible under Rule 408 because it is offered for purposes other than establishing liability or the amount of the claim. The evidence underlying the allegations being admissible, there is no basis for striking the allegations as “immaterial” under T.C.R.C.P. 12(f).
B. ASDRO’s Motion to Dismiss
ASDRO bases its motion to dismiss on T.C.R.C.P. 12(b)(6). This rule directs the court, to dismiss complaints that fail to state a claim upon which relief can be granted. ASDRO asserts that MD has failed to allege claims warranting relief for three reasons. First, ASDRO was not a party to the contract in dispute. Second, any tort liability is prevented by MD’s failure to adhere to the requirements of the Government Tort Liability Act. Third, ASDRO, as an agency of the government, cannot be sued because there exists no statutory authorization permitting suits against it. We examine each argument in turn.
“The . . . standard with motions of the type before us [12(b)(6)] is that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Moeisogi v. Faleafine, 5 A.S.R.2d 131, 134 (Land & Titles Div. 1987) (citing Conley v. Gibson, 355 U.S. 41 (1957)). In considering a 12(b)(6) motion, the court assumes the allegations in the complaint are true. Rogin v. Bensalem Twp., 616 F.2d 680, 685 (9th Cir. 1980). The burden of proving the absence of a claim rests on the party seeking dismissal. *77Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). For the reasons discussed below, ASDRO has met this burden, and as a result, its motion to dismiss is granted.
ASDRO states that it was not a party to the contract at issue. To support this claim, it paraphrases a portion of allegation number 2 of MD’s complaint, stating that “FEMA in turn would utilize ASDRO as its local liaison for funding and administration of the Hurricane Val Contract.” ASDRO, however, either missed or chose to ignore the very next sentence, which states that “ASDRO actively participated in the Hurricane Val Contract initiating, requiring drafting and causing changes to the work and Hurricane Val Contract.” This allegation clearly labels ASDRO as an active participant in the disputed contract, thus “stating a claim upon which relief can be granted.” T.C.R.C.P. 12(b)(6).
On the second point, MD’s claims lie in contract, not in tort. The Government Tort Liability Act, and its accompanying procedural requirements, are inapplicable.
Third, ASDRO asserts that it is protected by the sovereign immunity generally conferred on ASG agencies. An ASG agency may only be sued in its own name if it is established as an entity separate from ASG by statute or the constitution. Aga v. Am. Samoa Gov’t, 3 A.S.R.2d 130, 131 (Trial Div. 1986). MD has not offered a statute or constitutional provision conferring such status on ASDRO. Rather, MD answers that it is really suing the American Samoa Government (“ASG”), and named ASDRO in the complaint as a courtesy, in order “to identify for the court which specific actors in the ASG were wrongdoers.” The accommodating . gesture is noted, but judicial resources could otherwise be put to better use if counsel would heed the law requiring MD to draft its pleadings to name the proper government defendants subject suit.
Because ASDRO cannot be sued as an agency, it is “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Moeisogi, 5 A.S.R.2d at 134. Defendant ASDRO’s motion to dismiss is therefore granted.
Issues of improperly named defendants, may, however, be addressed under T.C.R.C.P. 15(a), which allows a party to amend a pleading by leave of the court “when justice so requires.” In this instance, justice would be better served by allowing MD to amend its complaint to name ASG as a defendant in this instance because to do otherwise would jettison possibly meritorious claims on the basis of a procedural defect.
An amendment changing the name of the party against whom the claim is asserted must, however, also meet the mandates of T.C.R.C.P. *7815(c). To begin, the claim must arise out of the same “conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” In addition, Rule 15(c) requires that the party to be brought in by amendment (1) received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
The first criterion, that the claim against ASG arise out of the same transaction as that against ASDRO, is obviously satisfied. MD merely named the wrong party. It is not hying to introduce new bases for claims against ASG. Second, ASG’s defense will not be prejudiced by the mistake because ASG is already vigorously defending its interests in the case. Third, ASG is aware that MD merely named the wrong party.
The requirements of T.C.R.C.P. 15(c) being satisfied, MD is granted leave to amend the complaint so as to name the proper government defendants subject to suit.
Order
For the reasons stated above, defendant ASPA’s motion to strike is denied; defendant ASDRO’s motion to dismiss is granted; however, plaintiff MD is granted 10 days leave to amend its complaint accordingly to name the proper defendants.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486640/ | ORDER ON DEFENDANT’S MOTION TO DISMISS AND ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Richard D. Ames (“Ames”) initiated this action on November 12, 1999 with his filing of a “Motion to Quash and/or Terminate Summons and Second Re-examination of Tax Returns.” Ames then subsequently filed an “Amended Complaint” on November 15, 1999, alleging five causes of action against defendants arising out of the Tax Office’s alleged improper administration of Ames’ tax audit.
Facts
This dispute arises out of an audit of Ames’ tax returns. After much back and forth between Ames and the Tax Office, the Tax Office served Ames with a summons, on October 26, 1999, requesting the production of certain business records. Ames refused to provide these records, choosing instead to seek relief from this Court. Both his original pleading and his amended complaint, the latter served on November 15, 1999, request that the Court quash the Tax Office summons, end its audit, and direct the Tax Office to issue either a letter of understanding or a letter of deficiency based on its findings to date. Defendants submitted their motion to dismiss to the Court on December 6, 1999, and it was filed the next day. Ames asserts that he did not receive notice of the motion until December 7, 1999. Based on the date he received notice, which was one day after the statutorily permitted 20 days to file and serve an answer, Ames filed a motion for default judgment on December 8, 1999. Plaintiff and defense counsel argued both the motion to dismiss and the motion for default judgment at a hearing held on January 24, 2000.
*81Discussion
A. Motion for Default Judgment
Ames bases his motion for default judgment on the requirements of T.C.R.C.P. 12(a). This rule requires that a defendant “serve answer within 20 days after the service of the summons and complaint against him . . .” Ames served a summons and complaint upon the Tax Office on November 15, 1999, and asserts that he did not receive notice of the answer until approximately 2 p.m. on December 7, 1999. Based on these dates, he argues that the motion was not served within the requisite 20 day period. Calculations made according to T.C.R.C.P. 6(a) support Ames’ position and show that defendants did not serve him until 21 days after he served his complaint.
Defendants’ tardy service does not, however, entitle Ames to a default judgment. First, T.C.R.C.P. 55(e) states that “[n]o judgment by default shall be entered against the American Samoa Government... or an officer or agency ... unless the claimant established his claim or right to relief by evidence satisfactory to the court.” Second, we have held that a court must scrutinize the evidence before any default judgment may be entered. Scalise v. Gorniak, 26 A.S.R.2d 85, 86 (Trial Div. 1994). Third, default judgments are drastic remedies that are to be used only in extreme situations, such as where the adversary process has been essentially halted by an unresponsive party. H.F. Livermore Corp. v. Aktiengeschellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir. 1970). Serving an answer a day late does not even approach such an extreme situation. The Court will therefore deny Ames default judgment and address the merits of the complaint.
B. Motion to Dismiss
1. T.C.R.C.P. 12(b)(6)
Defendants base their motion to dismiss on T.C.R.C.P. 12(b)(6). This rule directs the court to dismiss complaints that fail to state a claim upon which relief can be granted. Defendants assert that Ames has failed to allege claims warranting relief for two reasons. First, the Internal Revenue Code prohibits suits that interfere with the Tax Office’s ability to assess taxes. Second, the Department of Treasury, the Tax Office, and their employees, as agencies of the government and its employees, cannot be sued because there exists no statutory authorization permitting suits against them.
“The . . . standard with motions of the type before us [12(b)(6)] is that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in *82support of his claim which would entitle him to relief.” Moeisogi v. Faleafine, 5 A.S.R.2d 131-134 (Land & Titles Div. 1987) (citing Conley v. Gibson, 355 U.S. 41 (1957)). In considering a 12(b)(6) motion, the court assumes the allegations in the complaint are true. Rogin v. Bensalem Twp., 616 F.2d 680, 685 (9th Cir. 1980). The burden of proving the absence of a claim rests on the party seeking dismissal. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). For the reasons discussed below, defendants have met this burden, and as a result, their motion to dismiss is granted.
2. Ames Has No Valid Claims Under the Tax Code
Defendants first argue that Ames has no valid claim under the tax code. We agree, for reasons laid out in the paragraphs that follow.
A.S.C.A. § 11.0408 confers jurisdiction on the High Court with respect to disputes concerning the American Samoa income tax. Thus, Ames is in the right place to file suit against the American Samoa Government. The territorial legislature has incorporated by reference the United States Internal Revenue Code, 26 U.S.C. § 1 et seq., for income taxation in American Samoa. A.S.C.A. § 11.0403, Klauk v. Am. Samoa Gov’t, 13 A.S.R.2d 52, 55 (Trial Div. 1989). The sections of the IRS code under which Ames has asserted claims, namely 26 U.S.C. §§ 6201(d) and 7521(b) (2000), are thus included in the American Samoa income tax laws.
Ames, however, fails to demonstrate that relief can be granted on these claims. The sections he cites can serve as a basis for relief only in certain situations, none of which are applicable in the current case.
Ames bases his first claim on 26 U.S.C. § 7521(b), which describes procedures involving taxpayer interviews. Ames asserts that he was never informed of the procedure governing or his rights under the audit process, as required by this section. Taking this assertion as true means that Ames was denied protection under the statutory scheme and gives rise to the possibility of a due process claim. However, Ames has not cited, and neither has the Court found, any instance in which failure to abide by the requirements of § 7521(b) gave rise to a cause of action. In the absence of such precedent this Court will not enjoin the tax office from investigations when it appears that Ames has independently apprised himself of his rights and is at this moment exercising them to the fullest extent possible.
Claims two through four are grounded in 26 U.S.C. § 6201(d), which refers the reader to Subchapter B, entitled “Deficiency Procedures.” We are unable to find any provisions in this subchapter on which Ames could base a claim to quash summons and prevent investigation. While *83§ 6212 requires that defendants issue a notice of deficiency before attempting to assess the same, it does not require that defendants issue such notice at any specific point in the audit. Ames’ claims based on this section, numbers 2, 3, and 4, thus fail to state a claim upon which relief can be based.
Ames’ fifth claim asserts that defendants’ requests for further information are “clearly in further violation of the IRS code, due process and audit procedures,” but this is anything but clear to the Court. Ames cites no law to support this assertion, and although the Court is willing to construe pleadings in the favor of those facing motions to dismiss, and especially so in the case of those defending themselves without the benefit of counsel, it is not inclined to research and assert valid claims sua sponte. Ames’ fifth claim is simply too vague to resist the motion to dismiss.
Even if Ames could assert claims under the sections cited above, they would be barred by 26 U.S.C. § 7421(a). This section, commonly known as the Anti-Injunction Act, prohibits suits against the tax office for its actions in assessing and collecting taxes. Alamoana Recipe Inc. v. Am. Samoa Gov’t, 24 A.S.R.2d 156, 157-58 (Trial Div. 1993). More specifically, courts have held that this section does not permit a court to enjoin a summons. See Anderson v. Internal Revenue Serv., 371 F. Supp. 1278, 1281 (D. Wyo. 1974); Ramos v. United States, 375 F. Supp. 154, 156 (E.D. Pa. 1974). The Ninth Circuit has also held that § 7421(a) prohibits taxpayers from obtaining an injunction compelling the tax office to grant taxpayers a hearing before permitting an additional inspection of their books. Zimmer v. Connett, 640 F.2d 208, 210 (9th Cir. 1981). Finally, courts are agreed that § 421(a) denies suits based on alleged harassment by tax officials, barring their exceeding statutory authority. See, e.g., Black v. United States, 534 F.2d 524 (2d Cir. 1976). Ames’ request for the Court to quash summons and enjoin the tax office from further assessment actions are thus precluded by this enactment.
Ames’ sole course of action at this point is to comply with the requests of the tax office. If the office concludes that Ames owes taxes, it must issue a notice of deficiency under 26 U.S.C. § 6212 as a prerequisite to assessment. Klauk, 13 A.S.R.2d at 55, Robinson v. United States, 920 F.2d 1157, 1158 (3d Cir. 1990). At that point Ames can challenge the deficiency by petitioning this Court under 26 U.S.C. § 6213, which provides for an exception to the general prohibition on suits contained in 26 U.S.C. § 7421(a). See Laino v. United States, 633 F.2d 626, 630 (2d Cir. 1980).
3. Sovereign Immunity Does Not Bar a Taxpayer Suit Concerning Deficiency or Refund
*84Defendants assert that, even if Ames has valid claims under the tax code, they are barred by the doctrine of sovereign immunity generally enjoyed by ASG agencies. Defendants are incorrect. In the case of tax proceedings, Congress deliberately waived sovereign immunity by providing for deficiency hearings and refund suits. Klauk, 13 A.S.R.2d at 60. As an alternative to naming the Tax Office and the Director of the Tax Office, Ames could thus name the American Samoa Government as a defendant in a suit founded on valid claims.
Order
For the reasons stated above, defendants’ motion to dismiss is granted.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486641/ | ORDER DENYING DEFENDANT’S MOTION FOR SEVERANCE
Facts
Defendant Afuola Kalasa (“Afuola”) is charged with 7 counts of conspiracy and 7 counts of forgery on grounds that he allegedly participated in providing counterfeit voter identification cards to 7 Vatia cricket team members. He is alleged to have prepared the allegedly forged cards with his co-defendant Tofau P. Gaoteote. His wife, Meloma Afuola, is charged with the same offenses for allegedly transferring the cards from the Voting Office to the players.
Afuola seeks to sever his trial from that of his co-defendants, who are facing similar charges arising out of the alleged voter ID card forgeries. Plaintiff American Samoa Government (“ASG”) opposes severance. Afuola argues for severance on the basis that he will be prejudiced by a joint trial. He offers no facts or law in support of this bald assertion. The Court, will, however, entertain his motion because it has before it a similar, fully briefed motion from co-defendant Meloma Afuola.
Analysis
A. T.C.R.Cr.P. 8 Standard for Joinder of Defendants is Met
T.C.R.Cr.P. 8(b) permits ASG to charge multiple defendants in a single information if “they are alleged to have participated ... in the same series of acts or transactions constituting an offense or offenses.” The alleged scheme involving Afuola consists of a series of acts constituting the offense of forgery. While making and transferring the cards were different actions, they were nonetheless part of a series of acts constituting forgery. Joinder of multiple defendants is proper “if all of the offenses charged in the indictment [or information] arose out of the same series of transactions. United States v. Satterfield, 548 F.2d 1341, 1344 (9th Cir. 1977). Such is the case here, and Rule 8(b) joinder standards are therefore met.
B. T.C.R.Cr.P. 14 Does Not Support Severance
T.C.R.Cr.P. 14 allows a court to sever defendants for trial, even if joinder was proper under Rule 8(b), if the prejudice to a defendant outweighs interests of judicial economy. See United States v. Armstrong, 621 F.2d 951, 954 (9th Cir. 1980). Afuola offers absolutely *86no showing of prejudice. It appears from other parties’ pleadings, however, that he and his wife may assume antagonistic defenses. With regards to this situation, the Supreme Court has held that mutually antagonistic defenses are not prejudicial per se. Zafiro v. United States, 506 U.S. 534, 538-39 (1993). In such cases, severance is required only if trying defendants together would compromise a specific trial right or prevent the jury from making a reliable judgment regarding the guilt or innocence of each defendant. Id. at 539. Afirola has offered no argument that either would occur in this case. Absent a clear showing of prejudice, the Court will not grant a severance at the expense of the taxpayers.
Conclusion and Order
For the foregoing reasons, defendant Afirola’s motion to sever is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486642/ | ORDER DENYING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT, DENYING IN PART AND GRANTING IN PART DEFENDANTS’ MOTIONS- TO DISMISS
Plaintiffs Alamoana S. Mulitauaopele (“Alamoana”), Lisa Mulitauaopele (“Lisa”), and Alamoana Recipe, Inc. (“Recipe, Inc.”), have filed a complaint against the American Samoa Government and the Tax Office (“ASG”), Lieutenant Governor Togiola T. Tulafono (“Tulafono”), and Oilau Fa'aola (“Fa'aola”), alleging a number of claims. Plaintiffs allege that ASG breached a lease to Recipe, Inc. of certain land in Atu'u by illegally terminating the lease. Plaintiffs also claim that the ASG Tax Office failed to pay them overdue tax refunds and illegally levied funds. Alamoana further claims that Tulafono defamed him by accusing him of taking government stationary and drafting a letter purporting to be by the governor. Against Fa'aola, plaintiffs claim that Fa'aola damaged the Atu'u property and also failed to pay pursuant to plaintiffs’ and Fa'aola’s agreement regarding plaintiffs’ business on the Atu'u property.
There are a number of motions before the Court. ASG and Tulafono have filed motions to dismiss under T.C.R.C.P. 12(b)(6) for failure to state a claim. Fa'aola has also filed a motion to dismiss under T.C.R.C.P. 12(b)(6). Alamoana responded with a motion for default judgment citing the defendants’ failure to respond to the complaint.
I. Alamoana’s Pro Se Representation of Other Plaintiffs
As a preliminary matter, we affirm our statement made to Alamoana at the hearing on January 21, 2000, that he may only represent himself, not the other plaintiffs in this lawsuit. While non-lawyers may represent themselves, they are not. allowed to represent other individuals or corporations. Under A.S.C.A. § 31.0104, it is a misdemeanor for an unlicensed or unauthorized person to practice law. “The legal representation of another in court. . . falls Well within the definition [of the practice of law].” Pene v. Am. Samoa Gov’t, 12 A.S.R.2d 43, 47 (App. Div. 1989). The requirement that only attorneys may practice law “protects the public against rendition of legal service by unqualified persons.” Model Rules of Prof’l Conduct R. 5.5 cmt. (2000). Furthermore, a corporation is almost never allowed to appear in a court of record unless represented by a licensed attorney. See Henn & Alexander, Laws of Corporations § 80, at 151 n.12 (3d ed. 1983). There was a case in American Samoa in which the Court allowed a corporation to be unrepresented by counsel, referring to the corporation as a *89“sophisticated litigant”. Wattie Exports Ltd v. Pac. Indus., 6 A.S.R.2d 30, 31 (Trial Div. 1987). However, Wattie Exports only involved the Court’s approval of a stipulated judgment and the case cites no precedent for allowing such a move.
We therefore find that Recipe, Inc. may not proceed in this lawsuit unless and until it is represented by counsel. Furthermore, we will only consider plaintiffs’ motion as a motion by Alamoana individually, not the other plaintiffs, Lisa and Recipe, Inc.
n. Alamoana’s Motion For Default Judgment
Alamoana has requested default judgment against all defendants for failure to respond to the complaint, which was filed on November 1, 1999. The same day, the Court summoned defendants to serve plaintiffs with an answer within twenty days after the summons was served and to file a copy with the Clerk of the Court. ASG and Tulafono filed a motion to dismiss under T.C.R.C.P. 12(b)(6) on December 13, 1999. Oilau Fa'aola filed a motion to dismiss under T.C.R.C.P. 12(b)(6) on December 30, 1999.
Defendants are required to file motions to dismiss for failure to state a claim under T.C.R.C.P. 12(b)(6) before filing any responsive pleading. They therefore followed the proper procedure. It is unclear from the Clerk of Court’s file, however, whether the defendants had indeed failed to respond in a timely fashion. We see no returns filed by plaintiffs certifying personal service upon ASG and Fa'aola, although there is a return of service filed on December 8, 1999, certifying service of the summons and complaint upon the Law Offices of Marshal Ashley on December 7, 1999. Nonetheless, the court should be “slow in granting default judgments, mindful of its partiality for trial on the merits.” E-C Rental Serv. v. Pedro, 26 A.S.R.2d 65, 67 (Trial Div. 1994). Therefore, despite untimely delays on the defendants’ part, if there were any,- it would be inappropriate to allow default judgment.
Alamoana’s motion for default judgment is denied.
HI. ASG and Tulafono’s Motion To Dismiss
A. Lease Termination
ASG seeks dismissal, under T.C.R.C.P. 12(b)(6), of plaintiffs’ claim that ASG wrongfully terminated plaintiffs’ lease of property in Atu'u (“Atu'u lease”). ASG argues that the complaint makes no allegation as to what conduct on the part of ASG was wrongful. However, the *90complaint clearly alleges in paragraphs (7) to (9) that ASG’s lease termination was wrongful because plaintiffs had complied with the terms of the lease. According to the complaint, plaintiffs received on October 16, 1995, a letter dated September 27, 1995, in which ASG gave plaintiffs a 30 day notice to cure defaults on the lease. Plaintiffs responded on November 13, 1995, informing ASG that they had complied with the lease and provided supporting documentation. ASG nonetheless terminated the lease on February 13, 1996, citing the failure to correct the defaults.
We hold that the complaint has sufficiently stated a cause of action for breach of the lease. ASG’s motion to dismiss this cause of action is denied.
B. Defamation of Character
Alamoana alleges that Tulafono defamed him in a letter dated June 10, 1996, from Tulafono to Alamoana, with a copy to the Attorney General. The allegedly defamatory statement is the following:
I am asking the Attorney General to investigate how you came into possession of stationery from the Governor’s office in order to draft the letter purporting to be the Governor’s official action when it definitely appear \sic\ to me that you may be the author of the letter Serial 624, dated June 7, 1996. I would be most curious to know how this letter was drafted and allegedly signed by the Governor when his staff do not even know anything about it.
(Compl. Ex. 17.)
Tulafono argues that Alamoana has failed to state a claim because a request for investigation by the Attorney General is privileged. Tulafono is correct; reports to proper government officials concerning law violations are absolutely privileged. Cushman v. Edgar, 605 P.2d 1210, 1212 (Or. 1980); Restatement (Second) of Torts, §587 cmt. b (1965). Plaintiff Alamoana’s claim for defamation is therefore dismissed.1
*91C. Tax Claims
1. Tax Refund
Plaintiffs Alamoana and Lisa allege that ASG’s Tax Office has failed to refund plaintiffs’ taxes from the years 1990-1993 and 1997-1998. {See Complaint Ex. 17.) The United States Revenue Code (“Internal Revenue Code”) is, except where otherwise required, applicable to American Samoa. A.S.C.A. § 11.0401. Claims for erroneously or illegally assessed or collected taxes are subject to the same statutory requirements as those for recovery against the United States in United States district courts. A.S.C.A. § 11.0409.
ASG argues that the claim regarding taxes from 1990 to 1993 fails to state a cause of action under T.C.R.C.P. 12(b)(6) because it is barred by a three-year statute of limitations. Under the Internal Revenue Code, a claim for a credit or refund must be filed by the taxpayer “within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires later.” 26 U.S.C.A. § 6511(a) (2000). Because we have no information from which to determine when the returns were actually filed or paid, we cannot determine when the statute of limitations began to run and whether it has expired. We therefore deny ASG’s motion to dismiss on this ground.
ASG argues that the claim is also defective because plaintiffs have not exhausted their administrative remedies. Before filing a suit for the recovery of taxes erroneously or illegally assessed or collected, plaintiffs must file a claim for a refund or credit and this claim must be either denied or ignored for six months. See 26 U.S.C.A. §§ 6532(a) and 7422(a) (2000). Plaintiffs have failed to show that they have filed an administrative claim for any of the taxes assessed for any of the years. Plaintiffs’ claim for overpaid taxes is therefore dismissed without prejudice. Plaintiffs may file an amended claim if they may truthfully assert that they have followed the required administrative procedures.
2. Levy of Property
Plaintiffs Alamoana and Lisa allege that the ASG Tax office illegally levied theft property. While the complaint is not completely clear, it appears that plaintiffs allege that three levies were illegal: Plaintiffs assert that ASG improperly levied $3,981 from the joint account of plaintiff Lisa and her sister Sina Ward because ASG had no right to levy *92Ward’s funds. They also claim that they were deprived due process because they were not afforded the required notice of the levy of an unknown amount and because the notices were never executed as required by A.S.C.A. §§ 11.0412 and 11.0201. Lastly, they allege that ASG’s audit of their 1994 taxes violated the statute of limitations applicable to such audits.
ASG has moved for dismissal on the ground that the government is entitled to levy a bank account held jointly by the offending taxpayer and a third-party. Under 26 U.S.C.A. § 6331, the government may levy the property of a delinquent taxpayer to satisfy the taxpayer’s debt. Because each party to a joint bank account has the right to withdraw all of the funds from the account, the funds in a jointly held bank account are considered the taxpayer’s property, which may subject to levy. United States v. Nat. Bank of Commerce, 472 U.S. 713, 724 (1985). When a taxpayer has the “right to withdraw funds from the account, it is inconceivable that Congress intended to prohibit the Government from levying on that which is plainly accessible to the delinquent taxpayer-depositor.” Id. at 726 (internal quotes and citations omitted).
ASG’s motion is therefore granted and the claim is dismissed with regard to the levy of funds from Lisa and Sina Ward’s bank account.2
ASG has only argued for dismissal on this one claim. The motion to dismiss the claim as it pertains to the other claims for illegal levy is therefore denied.
IV. Fa'aola’s Motion To Dismiss
Fa'aola filed a motion to dismiss plaintiffs’ claims for breach of contract and' property damage under T.C.R.C.P. 12(b)(6), arguing that the complaint fails to state a claim.
A. Contract Claim
While plaintiffs’ claim is vague, we liberally construe the claims of pro se litigants. It appears that plaintiffs have asserted breach of contract against Fa'aola in paragraph eleven of the complaint by stating that plaintiffs terminated Fa'aola’s contract due to delinquent payment on their employment agreement. It also appears that plaintiffs have made a *93claim for property damage. This claim is implicitly alleged in paragraphs eleven and twelve of the complaint in which plaintiffs state that there has been “property damages [sic] in the amount of $15,000” and that they were “[concerned with additional destruction of the facilities.”
Fa'aola argues for dismissal based on both lack of consideration and unenforceability. According to Fa'aola, there was no consideration on the contract because the plaintiffs did not compensate her. Furthermore, she argues that, assuming the contract was valid, it terminated upon her failure to pay, so there is no claim upon the contract.
For Rule 12(b)(6) purposes, the Court accepts plaintiffs’ factual allegations as true. Hartford Fire Ins. Co. v. Cal., 509 U.S. 764, 770 (1993). Plaintiffs have alleged that there was a contract, and have adequately pled that Fa'aola breached the contract. The complaint therefore states a cause of action. We will not determine at this time whether there was adequate consideration. The contract was stated as being an employment contract, which would entitle Fa'aola to payment rather than plaintiffs. However, the fact that payment flowed the other way, from Fa'aola to plaintiffs, indicates the contract may well have been something else, a sub-lease or some other agreement by which Fa'aola paid a fee in exchange for business earnings. Furthermore, we will not determine whether termination of the contract eliminated plaintiffs’ right to sue on the contract. Contract interpretation is not something to be decided in a Rule 12(b)(6) motion. Fa'aola’s motion to dismiss the contract claim is therefore denied.
B. Property Damage Claim
Fa'aola also argues for dismissal on plaintiffs’ claim for property damage. According to Fa'aola, this claim fails to assert the existence of property damage and fails to allege a causal connection between Fa'aola and the purported damage. Plaintiffs’ allegations are even more vague in this instance. However, “[p]ro se pleadings should be construed to state a cause of action ... unless the Court can say with assurance that the litigant can prove no set of facts in support of his claim that would entitle him to relief.” Dev. Bank of Am. Samoa v. Ilalio, 5 A.S.R.2d 110, 116 (Trial Div. 1987). Plaintiffs allege that they terminated their contract with Fa'aola in part because of property damage, and it appears that Fa'aola had possession of the property at the time. Liberally construing plaintiffs’ claims, we cannot state that plaintiffs can prove no set of facts that would entitle them to relief, and therefore deny Fa'aola’s motion to dismiss on this ground.
*94However, as Fa'aola argued, the claim is barred by the statute of limitations. The statute of limitations for torts based on injury to property is generally three years when not asserted against the government. A.S.C.A. § 43.0210(7). The statute of limitations begins to run when the damage occurs that gives rise to the cause of action. According to Fa'aola, this claim arose, if at all, on February 13, 1996. But Fa'aola failed to state a reason why this date is appropriate. ASG’s letter terminating the lease with Recipe, Inc. was dated February 13, 1996, and it is likely that Fa'aola believes the cause of action arose on this date because of the lease termination. Nonetheless, Fa'aola has failed to state why this date is dispositive, and we decline to speculate on her behalf.
According to plaintiffs, they filed final notice on Fa'aola on or about May 25, 1996, in part because of damage to the property. It is therefore unclear when the purported damage occurred, but it must have occurred before this date. The cause of action therefore arose, at the latest, on May 25, 1996.
Plaintiffs initially filed a claim regarding the Atu'u lease against Fa'aola on April 14, 1999, as part of a counterclaim in CA No. 12-99 by Alamoana, d.b.a. Alamoana Yu-Tong and Recipe, Inc. They alleged that Fa'aola illegally ran a business on the premises in Atu'u with ASG’s permission after ASG illegally terminated Alamoana’s and Recipe Inc.’s lease. Nowhere in the claim do plaintiffs allege property damage, so the statute of limitations on this cause of action did not toll with the filing of that claim.
The statute of limitations therefore continued to run until the present claim was filed on November 1, 1999. This date is more than three years after May 25, 1996. Plaintiffs’ claim for damage to property is barred by the statute of limitations and is therefore dismissed.
IV. Order
We summarize our orders as follows:
1. Plaintiff Alamoana may not represent Lisa and Recipe, Inc.
2. Plaintiff Recipe, Inc. may not proceed in this action until it is represented by counsel.
3. Plaintiff Alamoana’s motion for default judgment is denied.
4. Defendant ASG’s motion to dismiss plaintiffs’ breach of contract *95claim is denied.
5. Defendant Tulafono’s motion to dismiss plaintiff Alamoana’s defamation claim is granted.
6. Defendant ASG’s motion to dismiss plaintiffs Alamoana’s and Lisa’s tax refund claims is granted. Plaintiffs’ claim is dismissed without prejudice.
7. Defendant ASG’s motion to dismiss Alamoana’s and Lisa’s unlawful levy claim is granted as to the claim regarding Lisa’s joint bank account, and denied as to the other claims.
8. Defendant Fa'aola’s motion to dismiss plaintiffs’ breach of contract claim is denied.
9. Defendant Fa'aola’s motion to dismiss plaintiffs’ property damage claim is granted.
It is so ordered.
Alamoana argues that it is improper for the Attorney General to represent Lieutenant Governor Tulafono because plaintiffs are suing Tulafono in his individual capacity. The allegedly defamatory statement occurred in a letter sent to Alamoana from Tulafono’s law office as part of Tulafono’s then-representation of Fa'aola in anticipation of the present lawsuit. {See Compl. Ex. 17.) Plaintiff is therefore correct that Tulafono was acting as a private attorney, not in his capacity as Lieutenant Governor. However, while we may have reservations about *91the advisability of the Attorney General’s representing a government official acting in his private capacity, we know of no authority, statutory or otherwise, from which to find that such representation is improper.
In so holding, we have not made any determination with regard to Sina Ward’s ownership rights in the property. The government’s levy is provisional; if the money in the bank account properly belongs to Ward, there may still be administrative or judicial remedies available to her. See id. at 731. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486643/ | ORDER DENYING MOTION FOR DEFAULT JUDGMENT OR SUMMARY JUDGMENT
Plaintiff Seutatia Fiame (“Fiame”) filed a complaint for declaratory relief on March 12, 1999. The named defendants are her children, who have not contested the complaint. Fiame brings suit in order to establish clear title to certain real property located in the village of Tafuna. The defendant children have not filed an answer or otherwise appeared in this action. Thus, Fiame now seeks a default judgment or summary judgment in the form of declaratory relief. The hearing was held on January 21, 2000, with Fiame’s counsel present.
This property in question, known as Kokoland, was deeded to Fiame and her deceased husband without specifying the type of joint ownership. The husband died intestate on October 23, 1994, and Fiame and her children now wish to determine the ownership of the property in order to secure a mortgage or sell the property. There being no default rale at present in the territory regarding the disposition of real property when a spouse dies intestate, Fiame and her children are uncertain as to who holds interests in Kokoland. Fiame is accordingly seeking declaratory judgment that a tenancy by the entirety applies in this situation, making her the sole owner of the property.
Analysis
Fiame is correct in asserting that her situation is not unique in the territory. It would indeed be helpful to determine whether a tenancy by the entirety applies in the territory when a property is deeded to spouses without designating the tenancy and one spouse then dies intestate. However, in order to issue a declaratory judgment to that effect, the *97court requires that a true case or controversy come before it. A.S.C.A. § 43.1101.
In order for there to be a case or controversy amenable to a decision on the merits, we must ask “whether it is relatively certain that coercive litigation will eventually ensue betweenthe same-parties, if a declaratory judgment is refused.” In re High Chief Title “Mauga,” 4 A.S.R. 132, 135 (1974). In contrast to more recent cases where the parties were likely to sue each other in the absence of declaratory relief, see, e.g., Am. Samoa Gov’t v. S. Pac. Island Airsystems, 26 A.S.R.2d 132 (Trial Div. 1994); Sala v. Am. Samoa Gov’t, 21 A.S.R.2d 50 (Trial Div. 1992), the parties in the present case have shown no such inclination.
The present case appears to have been constructed by acquiescing parties with identical interests in order to obtain an advisory opinion. However useful a disposition on the merits would be, we cannot overlook the case or controversy requirement to grant declaratory relief in this case. This case never should have come before us, because the parties could have easily established clear title to the property by having the children sign quitclaim deeds assigning any and all interest in the property to Fiame.
We are eager to rule on the nature of the tenancies in this kind of situation, but longstanding and powerful prohibitions on advisory opinions require us to wait for a true controversy in order to do so.
Order
For the foregoing reasons, the motion for a default judgment or summary-judgment in the form of declaratory relief in favor of Fiame is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486645/ | ORDER GRANTING MOTION TO DISMISS
History
Plaintiffs Estate of B. Fa'afetai Pua'auli, Fa'afetai Pua'auli and Penieli Pua'auli (collectively “the Pua'aulis”) filed a complaint on September 3, 1987, alleging that defendants LBJ Tropical Medical Center, Department of Health, American Samoa Government, and numerous Does (collectively “ASG”) committed medical malpractice with regards to the care of their daughter, B. Fa'afetai Pua'auli. Bom on September 3, 1985, the daughter died three days later, allegedly due to malpractice. ASG answered on September 30, 1987.
The Pua'aulis took no further action on the claim until the Court issued its order on October 4, 1999, directing the Pua'aulis to show cause why the action should not be dismissed. In response, the Pua'aulis asked the Court to set the matter for trial. The Court denied this request at the hearing on October 29, 1999, instead scheduling a status hearing for December 3, 1999, at which time ASG submitted a motion to dismiss. The Court conducted a hearing on the motion to dismiss on January 7, 2000 and granted counsels’ motion to submit briefs on the issue. ASG filed an addendum to its memorandum in support of the motion to dismiss on February 23, 2000, and the Pua'aulis filed their opposing *105memorandum on March 16, 2000.
Analysis
T.C.R.C.P. 41(b) expressly authorizes the court to dismiss a case for lack of prosecution. The court possesses inherent powers that allow it to dismiss a case on the same grounds. Link v. Wabash R.R., 370 U.S. 626, 633 (1962). In considering whether to dismiss a case for lack of prosecution, the Court weighs the following factors: the Court’s need to manage its docket, the public interest in the expedient resolution of litigation, the risk of prejudice to the defendants, the policy favoring resolution of disputes on their merits, and the availability of less drastic sanctions. Ace Novelty Co. v. Gooding Amusement Co., 664 F.2d 761, 763 (9th Cir. 1981).
Unreasonable delay is a prerequisite for dismissal for failure to prosecute. Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1280 (9th Cir. 1980). “Unreasonable delay creates a presumption of injury to [defendant’s] defenses.” Id. Despite the presumption, proof of actual prejudice to a defendant’s case is a factor in judging whether a delay is unreasonable. Citizen’s Util. Co. v. Am. Tel. & Tel. Co., 595 F.2d 1171, 1174 (9th Cir. 1979). ASG has shown, in the present case, substantial prejudice in that many witnesses are no longer available and perhaps all of the evidence has been lost due to the Pua'aulis’ delay. This actual prejudice weighs heavily in favor of granting dismissal.
Turning to the court docket and expedient resolution of litigation factors, we must examine the length of and reasons for the delay. Unreasonable delay is not a fixed time period, and connotes different periods in different cases. However, a delay is unreasonable if there is a significant period of total inactivity on the part of the plaintiff. Ramsey v. Bailey, 531 F.2d 706, 708 (5th Cir. 1976). Courts have dismissed actions after only four weeks of inactivity when counsel proved unresponsive in explaining the delay. See, e.g., Ash v. Cvetkov, 739 F.2d 493, (9th Cir. 1984). Even where the plaintiff has resumed prosecution prior to the motion to dismiss, a four-year delay was held unreasonable in light of the plaintiffs inactivity for that period of time. See In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994). The Pua'aulis having been completely inactive for 12 years, as well as completely unresponsive in explaining the delay, the Court finds that the delay was unreasonable.
Having determined that unreasonable delay exists, the Pua'aulis have the burden of showing that the delay was justified or excusable. Cubit v. Ridgecrest Cmty. Hosp., 240 Cal. Rptr. 346, 354 (Cal. Ct. App. 1987). The Pua'aulis offer no excuse or justification, whether legal, financial, or medical, for their delay. With no explanation given for the 12-year delay in prosecuting the action, this Court has little choice but to grant ASG’s *106motion to dismiss.
The medical malpractice cases we have located support granting dismissal. For example, dismissal for failure to diligently prosecute was granted in a case where the plaintiffs waited 2 years and 7 months between serving the initial complaint and the amended complaint plus certificate of merit. Dismissal was granted in this case even though the plaintiffs changed attorneys during the time between the filing of the two complaints. See generally Adams v. Roses, 228 Cal. Rptr. 339 (Cal. Ct. App. 1986). The Pua'aulis in this case have not changed counsel, and thus have even less excuse for delay than did the plaintiff in Adams.
Another case reversed the trial court’s dismissal when the plaintiffs counsel showed that the delay of 4 years was justified because he had been actively conducting discovery and submitting and responding to various motions during the time period in question. See Cubit, 240 Cal. Rptr. at 360. In sum, the plaintiffs counsel was given a reprieve in that case because he could show that he had been actively prosecuting the case even though it had not proceeded to trial. This comports with the rule that a mere lapse of time does not warrant dismissal if the plaintiff has been diligent throughout. Cherry v. Brown-FrazierWhitney, 548 F.2d 965, 969 (D.C. Cir. 1976). Here, on the contrary, the Pua'aulis have offered no showing whatsoever of any activity during the 12 year period in question.
While the Pua'aulis’ argument regarding the Court’s preference for resolving cases on the merits is not without force, it does not justify hearing a case after such a long period of inactivity. The Pua'aulis have simply slept on their claims for far too long, with no justification or excuse, to burden ASG with defending the case.
Order
ASG’s motion to dismiss with prejudice is granted.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486646/ | ORDER GRANTING SUMMARY JUDGMENT
Plaintiffs Talatalaga Aveina (“Talatalaga”) and Aveina Aveina, Jr. (“Aveina Jr.”) have moved for summary judgment. The motion was heard on February 11, 2000, with both counsel present.
Facts
Talatalaga and Aveina, Jr. entered into an oral agreement with defendant Sui Aveina (“Sui”), Aveina, Jr.’s brother, to purchase real property in Happy Valley, comprised of a house and the land on which it sits (“the property”), from Sui. Talatalaga and Aveina, Jr. paid Sui a $30,000 *108down payment and one installment payment of $150.00. They agreed to make monthly payments of $150.00 until the purchase price was paid, but refused to make installment payments after they discovered that Sui did not own the property.
According to Talatalaga and Aveina, Jr., Sui agreed to tender legal title after they paid the $30,000 down payment. According to Sui, he does not need to hand over title until the purchase price is paid in full. Talatalaga and Aveina, Jr. claim that the agreed price was $35,000; Sui claims the price was $65,000. Talatalaga and Aveina, Jr. filed this claim requesting the return of their deposit and installment payment and now seek summary judgment.
Sui has not owned the Happy Valley house since 1994, when he stipulated to a property settlement with Flowerpot Aveina (“Flowerpot”) as part of their divorce. This agreement, filed with this Court on July 29, 1994, in DR No. 19-94, stated that all of the houses in Happy Valley would be given to Flowerpot.
Discussion
Summary judgment is appropriate when there is “no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” T.C.R.C.P. 56(c). The court must view the pleadings and supporting papers in the.light most favorable to the non-moving party. Amerika Samoa Bank v. United Parcel Serv., 25 A.S.R.2d 159, 161 (Trial Div. 1994); Ah Mai v. Am. Samoa Gov’t, 11 A.S.R.2d 133, 136 (Trial Div. 1989).
Talatalaga and Aveina, Jr. allege that they believed Sui owned the property and relied on his representations that he owned the property and was able to convey legal title. Sui claims he made no material misrepresentations. He argues that he owns the land on which the house sits because the property settlement only refers to the Happy Valley house, not the land on which it sits. Sui also argues Talatalaga and Aveina, Jr. are presumed to have knowledge of the divorce decree because the divorce agreement is a public record. He further notes he allowed Talatalaga and Aveina, Jr. to live on the property for years without paying rent.
Sui’s arguments are completely without merit. Parties may not knowingly sell property they do not own. It is not enough that Sui may own the land at Happy Valley because he agreed to sell the land and the house, and he admits he does not own the house. It is immaterial whether or not Sui sent some of the money paid by Talatalaga and Avenina, Jr. to Flowerpot, who actually owns at least the house; Talatalaga and Aveina, Jr. did not contract to purchase the property from *109Flowerpot. It is also irrelevant that Talatalaga and Aveina, Jr. have lived in the house rent-free from 1995 until the present. Any rental agreement the parties may have had is separate from the contract for sale.
Furthermore, the contract violates the Statute of Frauds. In order to prevent frauds and perjuries, agreements for the sale of real property must be in writing to be valid. See A.S.C.A. § 37.0211. Under the Statute of Frauds, such agreements must state the primary terms of the agreement and be signed by the party to be charged. Because the parties only agreed orally to the sale, the contract violates the Statute of Frauds and is unenforceable. Therefore, Talatalaga and Aveina, Jr. are entitled to the return of the funds they paid to Sui.
Talatalaga and Aveina, Jr. are also entitled to recover prejudgment interest from the date their claim became liquidated, which was when the amount Sui owed them was fixed and known. See 22 Am. JUR. 2d Damages § 648 et seq. (1985). This date is the date Talatalaga and Aveina, Jr. refused to perform the oral contract and demanded their money back.
Talatalaga and Aveina, Jr. made the $30,000 payment on January 29, 1997. The $150.00 installment check was dated on April 5, 1997 and was deposited on April 14, 1997. They discovered that Sui did not own the property and demanded return of their money some time after April 5 but on or before May 5, 1997 when the next monthly installment payment was presumably due. We therefore calculate prejudgment interest at the rate of 6% per annum, pursuant to A.S.C.A. § 28.1501, from May 5, 1997 until the entry date of the judgment. The amount is $5,234.
Order
Sui shall pay Talatalaga and Aveina, Jr. $35,384, including prejudgment interest, plus costs, and post-judgment interest on the entire amount at the rate of 6% per annum until the judgment is paid in full. Summary judgment shall enter accordingly.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486647/ | ORDER GRANTING PLAINTIFF’S MOTION TO AMEND INFORMATION
*111Facts and Procedural History
Plaintiff American Samoa Government (“ASG”) charged each defendant with 7 counts of conspiracy and 7 counts of forgery jointly in an information filed November 9, 1999, on grounds that they provided forged voter identification cards to 7 Vatia cricket team members. Meloma Afirola (“Meloma”) is alleged to have transferred the cards from the Voting Office to the players. ■ Co-defendants Afirola Kalasa (“Afirola”), Meloma’s husband, and Tofau P. Gaoteote stand accused of having made the allegedly forged cards.
Afirola submitted a motion to dismiss on January 10, 2000, that asserted, inter alia, that the charges should be dismissed because they were vague and ambiguous. ASG requested leave to file an amended information on January 25, 2000, in order to clarify the charges and correct two defects. The first was a simple oversight in that Count 2 failed to name a specific defendant. The second defect was that ASG had charged all three defendants with both conspiracy and the underlying offense of forgery with regards to each of the seven cards, an exercise clearly forbidden by A.S.C.A. § 46.3410. ASG claims to have cured this defect by amending the information to charge the forgery counts based on the making of the cards and charge the conspiracy counts based on the transfer of the cards. ASG, however, neglected to move for a hearing on its motion to amend and as a result was required to resubmit its motion to amend the information.
ASG moved to amend the information again on March 6, 2000. This amendment was identical to that tendered earlier, except for the removal of Counts 6 and 13. This leaves, at present, an information charging each defendant with six, rather than seven, counts of both forgery and conspiracy. Counsel for Afirola reiterated his objection to the information at a hearing held on March 14, 2000, arguing that the amended information continued to violate A.S.C.A. § 46.3410.
Discussion
A. Amendment under TCRCrP 7(e)
T.C.R.Cr.P. 7(e) grants the Court discretion to permit the prosecution to amend an information if no additional or different offense is charged. The Court agrees with the prosecution that it has not charged any additional or different offenses. The forgery and conspiracy counts in the original and proposed amended informations are identical, aside from the facts used to support them. The original forgery counts were based on the use, possession, or transfer of the cards, whereas the new counts instead allege that defendants made the cards.
*112ASG has, however, made yet another error in that the amended forgery counts are erroneous in citing A.S.C.A. § 46.4115(a)(3) as the basis for these counts. This subsection makes it a crime to use or transfer forged documents, whereas the allegations supporting these counts in the amended information state that the defendants made the documents. The making of forged documents is properly prosecuted under A.S.C.A. § 46.4115(a)(1) or (2). ASG should have substituted subsections 1 or 2 for subsection 3 in counts 7 through 12 of the amended information.
Discussion of the amended information before us is, however, moot because it violates both A.S.C.A. § 46.3410 and the prohibition on multiplicitous charging.
B. Conspiracy and Multiplicitous Charging
A.S.C.A. § 46.3410 prevents the government from prosecuting criminal defendants for both conspiracy and the underlying offense if they arise out of the “same course of conduct.” It appears obvious that the applicable course of conduct in this case is the forgery of the cards, and thus A.S.C.A. § 46.3410 requires that ASG make a choice between the conspiracy and forgery counts.
Even in the absence of A.S.C.A. § 46.3410, ASG’s attempt to charge both forgery and conspiracy for a single forgery constitutes multiplicitous charging. ASG’s attempt to charge conspiracy under ASCA § 46.4115(a)(3) Tor using or transTerring a card and forgery under ASCA § 46.4115(a)(1) for making the same card creates, in effect, two counts out of one offense. The Ninth Circuit has held that each separate act (in that case each filing of papers) in furtherance of a bank fraud scheme may not be separately charged. United States v. Molinaro, 11 F.3d 853, 860 (9th Cir. 1993). Similarly, ASG is not permitted to charge two counts of forgery based on two separate acts (making and transferring) in the overall scheme of forging the cards. Charging multiple forgery counts on each card is prohibited as multiplicitous. Similarly, a conspiracy count based on a prohibited forgery count must be stricken as multiplicitous.
In sum, ASG’s amended information is rejected because it improperly charges both conspiracy and forgery for the same conduct. The proper remedy for a multiplicitous indictment is an election or consolidation of the offending counts, and dismissal of the surplus counts. See generally United States v. Universal Corp, 344 U.S. 218 (1952). The entire indictment need not be dismissed. See id. ASG is accordingly granted leave to amend the information to cure the A.S.C.A. § 46.3410 and multiplicitous charging defects.
*113Conclusion and Order
For the foregoing reasons, Plaintiff ASG’s motion to amend the information is granted, but not with the amended information it has submitted. ASG is directed to submit a new amended information that complies with this order to the Court within 10 days of entry hereof.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486648/ | ORDER DENYING MOTION FOR JUDGMENT OF ACQUITTAL
Plaintiff American Samoa Government (“ASG”) accused defendant Faulalo Leali'ie'e (“Leali'ie'e”) of committing three felonies, burglary in the first degree, rape, and sodomy, in the information. Trial by jury began on February 29 and concluded on March 3, 2000. Leali'ie'e, defense counsel, and prosecutor were present throughout the trial. On March 3, 2000, the jury convicted Leali'ie'e of the three crimes charged.
Material Procedural History
On February 29, 2000, after the jury was selected, but before evidence was presented, Leali'ie'e moved in limine to exclude the victim’s show-up identification of Leali'ie'e and related evidence. Though well past the pretrial motion deadline, the Court allowed the motion to be made, because defense counsel had only recently joined the Public Defender’s Office and been assigned this case.
Testimony on this issue was taken on February 29 outside the jury’s presence. However, the testimony did not fully develop all circumstances related to the issue. Since the victim had only recently turned age 14, we decided that the victim should not be required to testify further outside the jury’s presence and, if we denied the motion, then again before the jury. We also did not want to further delay presentation of the case to the jury. Thus, next morning, March 1, 2000, we advised counsel that the trial would proceed, and we would rule on the issue when all the relevant evidence had been presented.
On March 2, 2000, again outside the jury’s presence and before ASG rested its case, the parties argued the issue to exclude the show-up identification and related evidence. On March 3, 2000, still outside the jury’s presence, we denied the motion to exclude this evidence. Then, after ASG indicated it would rest its case as soon as a stipulation on *115another matter had been presented to the jury, Leali'ie'e was allowed to make and the parties argued, again outside the jury’s presence, a motion for a judgment of acquittal pursuant to T.C.R.Cr.P. 29(a). Leali'ie'e’s arguments on this motion also focused on the show-up identification issue. We then denied this motion.
On March 3, 2000, after the jury returned verdicts of guilty, Leali'ie'e renewed the motion for a judgment of acquittal, this time pursuant to T.C.R.Cr.P. 29(c).. We took the motion under advisement and will now deny it.
Discussion
I. The Judgment of Acquittal Standard
The standard to apply in ruling on a motion for a judgment of acquittal is set forth in T.C.R.Cr.P. 29(a) as follows:
The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the information after evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.
“In considering a motion for acquittal, a trial court must ‘determine whether, viewing all the evidence in the light most favorable to the Government and drawing all reasonable inferences and credibility choices in favor of the jury’s verdict, a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt.’” Am. Samoa Gov’t v. Tauala, 25 A.S.R.2d 179, 180 (Trial Div. 1994) (quoting United States v. O’Keefe, 825 F.2d 314, 319 (11th Cir. 1987)).
II. The Offenses
Leali'ie'e does not dispute that the offenses charged were committed, only that the evidence does not prove beyond a reasonable doubt that he was the perpetrator. We therefore only summarize the evidence of the crimes themselves.
During the night of July 5, 1999, the unmarried female victim, then age 13 years, was sleeping on the living room floor in her home in Taftma, American Samoa. She was awakened by biting mosquitoes around 10:00 p.m. She next became aware of a man sitting beside her. The man had entered the house, without anyone’s permission, by removing louvres from the window adjacent to the front door of the house that opened into the living room.
*116During the ensuing minutes, the man, using scissors in a threatening manner, partially disrobed the victim, kissed her mouth and breasts, fondled and kissed her vagina, and had sexual intercourse with her. These acts were forcibly compelled upon the victim without her consent. The attack ended and the man fled when the victim’s sister unexpectedly entered the house at the back door.
These facts clearly establish commission of the crimes of burglary in the first degree, rape and sodomy, as respectively described in A.S.C.A. §§ 46.4030(a)(3), 46.3604(a)(1), and 46.3611 (A)(1).
XII. The Perpetrator’s Identity
During the trial, the victim clearly and unequivocally identified Leali'ie'e as her attacker. However, Leali'ie'e asserts that the victim’s in-court identification was irreparably mistaken as a result of an impermissively suggestive show-up conducted by the police three days after the crimes were committed. He further argues that without the in-court and show-up identifications, the evidence is insufficient to sustain beyond a reasonable doubt his convictions as the perpetrator of the crimes.
A. The Other Identification Evidence
Leali'ie'e and his nephew, Torise Lemalu (“Torise”) were together the night of the crimes at the house of Papipai Titio and Asofa Titio (“the Titios”) in the same neighborhood as the victim’s house. Leali'ie'e and Torise left the house together at some point and apparently spent some time at Lion’s Park nearby picking up empty bottles to turn in for cash. According to the Titios, this departure was at or after 11:00 p.m., well after the crimes. Leali'ie'e was then living at the house of his sister, Torise’s mother, also in the same neighborhood.
Torise told Sgt. Pou T. Supapo (“Supapo”), the principal police investigator assigned to the case, and wrote a statement to the effect that while together on the night of the crimes, Leali'ie'e told Torise to wait for him and walked away towards and later returned from the direction of the victim’s house, and that Leali'ie'e then told him to only say that they went to Lion’s Park. However, Torise recanted his statement on the witness stand and accused Supapo of writing the statement he signed and threatening him with mace, or the like, in the process. ASG could only impeach Torise’s testimony with the prior inconsistent statement and the actual circumstances surrounding its making. Torise did testify that he and Leali'ie’e went to the park about 11:30 p.m. that night to pick up empty bottles.
The victim testified that during the attack she momentarily saw another *117person that she could not identify standing at the window near the front door to the house. Not long after the crimes, Sina Asiata, the victim’s aunt, was looking with a flashlight in the area around the victim’s house and saw two men and a dog walk by the dark side of the house. She believed the dog belonged to Torise, but could not recognize the men. About 1:00 to 1:30 a.m. the next morning, Joanne Seti, another aunt, saw two men that she could not identify sitting under a tree about 50 feet from the victim’s house. She also saw Torise giving Leali'ie'e a haircut outside Torise’s house later the next morning.
The police recovered the scissors used to threaten the victim, but found nothing to specifically tie Leali'ie'e to them. Near the victim’s house, the police also found three unbroken louvers, apparently removed from the window to facilitate entry into the house for the attack. Latent fingerprints were lifted from the louvers, but were not identified with any known fingerprints, including Leali'ie'e’s prints submitted for comparative analysis.
Leali'ie'e also testified. He simply denied that he committed the crimes.
In sum, Leali'ie'e’s connection to the crimes depends entirely on the admissibility and believability of the victim’s in-court and show-up identifications of him as her attacker.
B. The Show-up Identification
Suggestive show-up identification procedures may deny an accused the fairness of due process. Such procedures do not, however, render the evidence inadmissible if the identification is still reliable under the totality of circumstances. See Am. Samoa Govt v. Afamasaga, 17 A.S.R.2d 145, 147 (Trial Div. 1990).
As recognized in Afamasaga, 17 A.S.R.2d at 147, the Supreme Court has identified five principal factors to be weighed against “the corrupting effect of the suggestive identification itself’ in the reliability evaluation:
These [factors] include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.
Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
1. Victim’s View of the Criminal and Degree of Attention
The only electric light turned on at the house during the attack was *118outside at the back door into the room where the victim slept. The light provided a little illumination at this area in the room. The victim could not recall how long the attack lasted. However, it lasted long enough for the attacker to accomplish his criminal purposes. The victim was busy resisting the attacker at first, but she realized that resistance was futile. Then the attacker was on top of the victim, face to face, while he had sexual intercourse with her.
Though the time span was apparently not lengthy and the situation was both emotionally and physically turbulent, the victim had adequate opportunity to gain a lasting impression of her attacker’s face and body and could not help but pay close attention to him during the rape. See, e.g., Page v. Borg, No. C-91-3986-VRW, slip op. at 7 (N.D. Cal. Dec. 6, 1993) (identification reliable because rape victim faced perpetrator and identified him immediately upon seeing him at the police station).
2.. Accuracy of Victim’s Prior Description of the Criminal
Supapo interviewed the victim the night of the incident. According to Supapo, the victim described her attacker at that time as being of medium and slightly muscular build and having a small mustache, unshaven face, hair to the neck line (which Supapo took to mean extended in back and not necessarily long on top), and tattoos on his arms. The victim told Supapo that she had never seen her attacker before the incident, but she could recognize him if she saw him again. During the trial, however, the victim only recalled that her attacker was a Samoan with short hair and a rough beard. She no longer recalled any tattoos or scars as distinguishing marks.
The morning after the attack, July 6, 1999, Torise cut Leali'ie'e’s hair outside Torise’s house not far from the victim’s house. Leali'ie'e requested the haircut. The parties stipulated that Leali'ie'e had tattoos on both arms.
The victim’s descriptions of her attacker to the police initially and as diminished at trial contain both similarities and discrepancies. Neither description may be considered as very complete, but this is understandable given the circumstances of the attack, the victim’s age, and her lack of any contact with the criminal before the incident. The limited descriptions are also consistent with Leali'ie'e’s actual appearance, and except for hairstyle or length, Leali'ie'e did not dispute this comparative appearance. While not a strong factor in this case, the victim’s prior description is not without merit.
3. The Victim’s Level of Certainty at the Show-up
Sina Asiata, the victim’s aunt, was looking outside shortly after the *119attack with a flashlight and saw two men with a dog walk nearby. She could not identify either man, but she recognized the dog as belonging to Torise. During Supapo’s initial investigation, she learned of this event and heard the names of Leali'ie'e and Torise mentioned. Thus, in order to cover all bases, Supapo went to Torise’s home on July 8, 1999. Both Leali'ie'e and Torise were there. Supapo asked them to come to the Tafima police substation to be interviewed about their knowledge of the attack. Neither one was then a suspect or arrested and they went to the substation voluntarily.
At the substation, Leali'ie'e was placed in a conference room and Torise in an interrogation room. Supapo then telephoned Taumaoe Iakopo (“Iakopo”), a social worker, to bring the victim, who was temporarily in a protective juvenile shelter, to the substation. Supapo told Iakopo that she wanted to interview the victim. Iakopo testified that en route the victim was told that she would be asked if she saw her attacker there. According to Supapo, she did not mention identification of anyone to Iakopo. During her testimony, the victim admitted that she had previously testified she knew she would be asked to identify her attacker at the substation, but she also insisted she did not know that was the purpose beforehand and was surprised to see him there. The victim also admitted that she had previously testified that Supapo drove her to the substation, but in fact Iakopo took her there.
Supapo met the victim and Iakopo outside the substation. As the three of them walked inside and towards the conference room, Supapo asked the victim if she still remembered the appearance of her attacker. According to Supapo, the victim looked like she was uncertain and did not answer the question. At the conference room door, Supapo asked the victim to look inside through the door window to see if she recognized anyone inside, but did nothing to single out Leali'ie'e. Uniformed police officers, probably two or three, were interviewing others in civilian clothing in the room. Leali'ie'e was not handcuffed or placed in any distinguishing location. Compare United States v. Field, 625 F.2d 862, 869 (9th Cir. 1993) (pretrial identification unreasonably suggestive where witness observed suspect handcuffed, in custody, alone in a hallway).
Iakopo testified that the victim’s confusion occurred for some time when asked if she recognized anyone in the room, rather than when asked if she could still recognize her attacker while walking towards the conference room. According to Supapo, however, within a few seconds of looking through the door window, the victim pulled back from the window, wide-eyed, and in effect said, “That’s him.” Asked what she meant, the victim, again in essence, said, “The one who did something bad to me.” Asked what he was wearing, the victim stated that he was wearing a blue tank top and also mentioned his unshaven appearance and *120arm tattoos. The victim had identified Leali'ie'e as her attacker.
When testifying about the show-up identification, the victim did not specifically recall any questions or discussion. She testified that Supapo opened the door to the conference room. She was then surprised to see her attacker in the room and immediately told Supapo that Leali'ie'e was that person. She did not recall what Leali'ie'e was wearing at the substation. She admitted that the preliminary examination transcript indicated that she said she did not recognize anyone when she was at the substation, but she did not really remember what she said at that hearing. The victim did not waiver during her testimony, however, regarding her identification at the substation of Leali'ie'e as her attacker.
While Leali'ie'e presented evidence in an attempt to impeach the testimony related to the show-up identification in various ways, there is still substantial evidence that the victim identified Leali'ie'e at the substation with a high degree of certainty.
4. Time Between the Crimes and Show-up Identification
The victim confronted Leali'ie'e at the substation three days after the crimes. We are not dealing with the dimming of memory after months or even weeks. The victim’s mental image, however general, of her attacker was likely still vivid after this short time span.
5. Conclusion Regarding the Show-up Identification Reliability
The reliability evaluation of the show-up identification is not unequivocal. The evidence has both strong and weak points with respect to the five evaluation factors. We cannot say, however, that the evidence is legally insufficient to establish reliability. To the contrary, from the evidence, the jury as the factfinder could readily believe the victim’s in-court and show-up identifications and find beyond a reasonable doubt, as the jury did, that Leali'ie'e committed the crimes.
Conclusion and Order
The evidence is not insufficient to sustain Leali'ie'e’s convictions for the three crimes charged in the information. We therefore deny Leali'ie'e’s renewed motion for a judgment of acquittal.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486649/ | ORDER ON INTERPLEADER, DENYING PLAINTIFF’S MOTION TO BE DISCHARGED, DENYING DEFENDANTS’ MOTION TO DISMISS, DENYING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT, AND DISMISSING DEFENDANT FALEMALAMA
On December 8, 1999, Progressive Insurance Company (Pago Pago) Limited (“Progressive”) filed a claim for interpleader under T.C.R.C.P. 22. Defendants Southern Star International, Inc. dba Hong Kong Restaurant (“SSI”) and Kenny and Helen Young (“the Youngs”) have counterclaimed, alleging a statutory claim, breach of contract, indemnification, and breach of the duty of good faith.
This litigation has, in the short span of a few months, already become a tangled mess of motions and cross motions. Four motions are presently before the Court: (1) SSI and the Youngs moved to dismiss on December 30, 1999; (2) Progressive moved for a protective order, or alternatively for a motion for discovery conference, under T.C.R.C.P. 26(c) and (f), on January 12, 2000; (3) SSI and the Youngs moved for partial summary judgment and moved to* dismiss on January 19, 2000; and (4) SSI and the Youngs filed a motion to compel answers to interrogatories and production of documents on February 16, 2000.
Defendants SSI and the Youngs have also filed an affidavit in support of sanctions pursuant to T.C.R.C.P. 37(g), but they have not filed either a motion for sanctions or a memorandum supporting such a motion. There is therefore not a motion for sanctions before the Court at the present time.
I. Determination of the Propriety of Interpleader: First Stage of Interpleader Proceeding
Interpleader is a two-stage proceeding. In the first stage, the court determines whether the requirements for interpleader have been met. If the court finds that interpleader is proper, the merits are then considered in the second stage. Mid-American Indem. Co. v. McMahan, 666 F. Supp. 926, 928 (S.D. Miss. 1987); 4 JAMES W. MOORE ET AL., Moore’s Federal Practice § 22.01 (2d ed. 1985). Therefore, before the Court may address the substantive issues in the case, it must determine whether interpleader is appropriate in the present case.
*123The propriety of interpleader is often determined in conjunction with a motion such as a summary judgment motion. 7 CHARLES ALAN WRIGHT & Arthur R. Miller, Federal Practice and Procedure § 1714 (2d ed. 1987). Defendants SSI and the Youngs have filed motions to dismiss and a motion for partial summary judgment, and all parties have been given the opportunity to respond.
A party attempting to interplead must have a legitimate fear of multiple liability or litigation. T.C.R.C.P. 22. The claim must also be adverse both to the stake and to each other. See State Farm Fire and Cas. Co. v. Tashire, 386 U.S. 523, 526 (1967). Progressive claims it cannot distribute the $64,300 it admits it owes pursuant to the policy due to fear of liability from multiple claimants. According to SSI and the Youngs, SSI, the Youngs, and Ainoama Fata have agreed that SSI is to receive $15,000 and Fata shall receive the remainder of the $64,300. (Br. in Supp. of Partial Summ. J. 4.) However, Fata has stated that there is presently no valid agreement. (Aff. in Opp’n to Mot. for Partial Summ. J.)1 Based on the potential of conflicting claims by SSI and the Youngs *124and Fata, Progressive’s fear of multiple liability is justified. Furthermore, the total amount claimed exceeds the stake. These facts create the required adversity.
The Court sees no problems with other requirements for interpleader. There is no issue as to whether jurisdiction and venue are appropriate. Also, in a claim for rule interpleader under T.C.R.C.P. 22, in contrast to a claim for statutory interpleader under 28 U.S.C. § 1335, the stakeholder is not required to deposit the amount of the fund with the Court. Progressive has nonetheless deposited the amount of its admitted liability, totaling $64,300, with the Court registry on December 10, 1999.
Interpleader promotes judicial efficiency and fairness to parties by avoiding multiple litigation and inconsistent adjudications, and should be liberally granted. Texas v. Florida, 306 U.S. 398, 407 (1939); Ashton v. Josephine Bay Paul and C. Michael Paul Found., Inc., 918 F.2d 1065, 1069 (2d Cir. 1990). Progressive has met its burden of showing that it has met the requirements for interpleader, and the Court deems interpleader appropriate in this case.
Progressive has requested that it be dismissed from the case after it paid $64,300 into the Court registry. The Court may discharge the stakeholder if the stakeholder is disinterested. Nationwide Mut. Ins. Co. v. Eckman, 555 F. Supp. 775, 777 (D. Del. 1983). Progressive is disinterested in $64,300, the amount Progressive deposited with the Court and for which it admitted liability. However, SSI and the Youngs assert in their counterclaim that Progressive has an obligation to pay greater than this amount. Dismissal of a stakeholder is improper when an interpleading plaintiff disputes its liability to the insured for an additional sum as demanded in a counterclaim. Eckman, 555 F. Supp. at 778. Dismissal is therefore inappropriate.
In sum, the Court finds that interpleader is proper. However, the Court denies Progressive’s request for discharge from the case.
II. Defendants’ Motions to Dismiss and Motion for Summary Judgment
SSI and the Youngs filed a motion to dismiss on December 30, 1999, for *125failure to state a claim under T.C.R.C.P. 12(b)(6). Defendants state that plaintiffs ask to be absolved of all liability but have neither attached the policy nor interpleaded the policy, and state that there is no recognized theory of law for plaintiffs requested relief without performance. Defendants cite no authority, as they are required to do by T.C.R.C.P. 7(b), in support of their position that a party seeking interpleader is required to perform these acts in order to maintain a complaint. As the Court has previously stated, “[t]his court is not paid to be an advocate for either side, nor to do legal research that should be done by the attorneys, nor to guess at or construct [either party’s] legal theory. . . .” G.M. Meredith and Assoc. v. Blue Pac. Mgmt. Corp., 28 A.S.R.2d 204, 206 (Trial Div. 1995). Defendants’ motion to dismiss is denied.
On January 19, 2000, SSI and the Youngs filed a motion for summary judgment and another motion to dismiss the complaint regarding the $64,300 interpleaded amount. Summary judgment is appropriate when there is “no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” T.C.R.C.P. 56(c). The court must view the pleadings and supporting papers in the light most favorable to the non-moving party. Amerika Samoa Bank v. United Parcel Serv., 25 A.S.R.2d 159, 161 (Trial Div. 1994); Ah Mai v. Am. Samoa Gov’t (Mem.), 11 A.S.R.2d 133, 136 (Trial Div. 1989).
For the reasons discussed above with regard to the propriety of interpleader, summary judgment is inappropriate. SSI and the Youngs have claims adverse to'those of Fata. The parties have not come to an agreement on distribution of the fund, and it is unclear which party or parties is entitled to the interpleaded amount. Furthermore, SSI and the Youngs have failed to show that Tutuila International, Inc. (“TI”) or NTV Electronics (“NTV”) have denied interest in the building or the claim. Despite SSI and the Young’s statement that these parties have disclaimed any interest, (Br. in Supp. of Partial Summ. J. 3), the Court cannot find any statement by TI or NTV that they have no interest in the insurance proceeds. Til and NTV have not made appearances in this case, possibly indicating that have no interest in the claim. However, their failure to appear is not, at this time, conclusive in this regard.
SSI’s and the Young’s motion for partial summary judgment and motion to dismiss are denied.
EDI. Motions Surrounding Discovery
The Court has scheduled a hearing for April 24, 2000, on Progressive’s motion for a protective order. Progressive’s motion, which was renewed on March 24, 2000 in conjunction with a motion for sanctions, in essence requests that the Court stop or limit discovery. The hearing will necessarily entail discussion of the issues surrounding SSI’s and the *126Youngs’ discovery requests that were dated December 10, 1999, and served on December 13, 1999. It will also relate to the motion that SSI and the Youngs filed on February 16, 2000, in which they moved to compel answers to interrogatories and production of documents.
The Court therefore reserves judgment on these motions until after hearing oral arguments on April 24.
IV. Chief Falemalama L. Vaesau’s Request For Dismissal
Defendant Chief Falemalama L. Vaesau has stated that he is the communal owner of the land on which the building in Nu'uuli sat. In his answer to the complaint on December 27, 1999, however, he disclaimed any interest in the proceeds of Progressive’s insurance policy and requested that the Court dismiss him as a party to the case. Under T.C.R.C.P. 22, “[pjersons having claims against the plaintiff may be joined as defendants and required to interplead....” Having asserted no claim against Progressive, Chief Falemalama L. Vaesau is not a proper party defendant in this case. Defendant Chief Falemalama L. Vaesau is therefore dismissed from the case.
It is so ordered.
SSI and the Youngs have moved to strike Fata’s affidavit because it is not based on personal knowledge and because it was not timely filed. We find no reason to strike the affidavit. While parts of the affidavit may not be based on personal knowledge, Fata’s statement that she has not entered into an agreement with the other parties certainly is, and it is relevant to our enquiry. Furthermore, while parties adverse to a motion for summary judgment may only file affidavits prior to the day of hearing, T.C.R.C.P. 56(c), and Fata’s affidavit was filed on March 10, 2000, the same day of the hearing, Fata’s counsel informed the court that he was not informed that the hearing was on the motion for summary judgment. In light of this fact, and because the purpose of summary judgment proceedings is to “assess the proof in order to see whether *124there is a genuine need for trial”, T.C.R.C.P. 56(e) Advisory Committee Notes, the court finds that striking Fata’s affidavit based on a one- day delay would be an unduly harsh measure. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486650/ | OPINION AND ORDER
Procedural History
Plaintiff Atamu Matamua (“Matamua”) filed a complaint on April 28, 1999, alleging that defendant Caribbean Fishing Company (“CFC”), through its manager defendant Carlos Sanchez (“Sanchez”) defamed him. CFC and Sanchez answered on May 14, 1999, and the trial began on November 30, 1999. The trial record was held open in order to admit, by deposition or testimony, evidence provided by witnesses who were *129then at sea on fishing trips. Captain George Souza’s deposition was taken on December 13 and 21, 1999 and added to the trial record. Trial closed on February 22, 2000, with closing arguments from both parties. Matamua submitted a written summation on the same day. CFC and Sanchez replied in writing on February 25, 2000.
Facts
CFC manages a fleet of purse seiner fishing vessels that are owned by StarKist Samoa (“SKS”) and supply its cannery with fish for packing. Sanchez is CFC’s General Manager. At the time of the events at issue, Matamua was employed as a winch operator on the F/V Taimane (‘the Taimane”), a purse seiner vessel managed by CFC. It appears that Matamua had worked between three and five trips on the Taimane at the time he left that vessel’s employ.
The alleged defamatory statement was published in a fax authored and distributed by Sanchez on CFC’s behalf to SKS’s vessels on December 12, 1998. This statement was published by fax to all the boats in the SKS fleet to inform crew members that they were allowed to take only one fish from the vessel when it arrived in port. The following sentences comprised the allegedly defamatory statement: “For example, I was told recently that a Taimane crewmember by the name of Atamu took two truck loads of fish and sold this fish. This is an illegal practice.”
Although the statement only relays what Sanchez was purportedly told by a Taimane crewman, Sanchez testified at trial that he saw Matamua riding in a pickup truck, with an unspecified number of fish in the bed, as it left the port compound. The truck was allegedly pointed out to him by a member of the American Samoa Government’s Department of Port Administration. After seeing the truck, Sanchez proceeded to the Taimane and asked if anyone had taken fish off the boat. It was then that a crewmember allegedly told him that Matamua had done so.
Matamua asserts that he was fired as of the date of the alleged defamatory statement, while CFC and Sanchez argue that Matamua was simply not rehired for another contract. Matamua last fished on the Taimane on the trip begun approximately October 2, 1998, during which he was paid $6.50 per ton as a winch man. Matamua testified that all the fish had been unloaded as of the date of the events in question, which means that the trip for which he had contracted was at an end. Matamua, however, maintains that crewmembers would make a number of trips on one contract, and that he would have been rehired on the Taimane had not Sanchez instructed Captain Souza of the Taimane not to rehire him. Sanchez and the captain denied this allegation and asserted that Matamua was not rehired because the captain had secured the services of another winch man for the next voyage. Since then, Matamua has not *130worked on the Taimane or other SKS vessels, but he has taken three voyages on another purse seiner.
Analysis
Before we reach the heart of the defamation case before us, we must dispose of two tertiary issues.
A. Constitutional Issues
Matamua opens his trial summation quoting Article I, Section 4 of the Revised Constitution of American Samoa, regarding the dignity of an individual. CFC and Sanchez take issue with this citation and argue that a constitutional claim is untenable. We do not see where any constitutional violations were pled, however, and the quotation appears to be included for rhetorical, rather than legal, effect. There being no allegation of a constitutional violation, we need not address this issue further.
B. Joinder of Parties
Matamua moved, at the close of trial, to add SKS as a defendant. He cites this Court’s recent decision in McConnell Dowell (Am. Samoa) Ltd. v. American Samoa Power Authority, 4 A.S.R.3d 102 (Trial Div. 2000), as supporting this late addition. That order allowed the plaintiff to amend its complaint tó properly name a defendant. The order, and T.C.R.C.P. 15 upon which it is based, are entirely inapplicable to the present case for two reasons. First, the improperly named defendant in that case was already a party to the suit, while in this case SKS was never a party. Second, the amendment in that case was allowed during the initial stages of the lawsuit. Here Matamua is attempting to add a defendant after the conclusion of trial. T.C.R.C.P. 21 controls the addition of parties, and allows the court to add parties at any stage in the proceeding only “on such terms as are just.” Adding SKS at this late date, and providing it no chance to defend against the plaintiffs claims, is anything but just. The motion to join SKS as a defendant is accordingly denied.
C. Defamation
A.S.C.A. § 43.5201(1) defines defamation, for purposes of this action, as “libel which is a false and unprivileged publication by writing . . . which exposes any person to hatred, contempt, ridicule, or obloqúy or which causes him to be shunned or avoided or which has a tendency to injure him in his occupation.” The Second Restatement of Torts is helpful in defining defamation in that it contains all the requirements of the above definition, but lays them out in a more organized fashion at § *131558. Breaking down tírese requirements into single elements produces the following checklist for finding liability for defamation:
(1) A false
(2) and defamatory
(3) statement concerning the plaintiff,
(4) that is unprivileged,
(5) made to a third party,
(6) with fault amounting to at least negligence on the part of the publisher,
(7) and either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication of the statement.
The third and fifth elements are clearly established. The statement named Matamua and was distributed to every ship in the SKS fleet. The other elements of the cause of action, however, require fiirther analysis.
1. Falsity
In the case of a private plaintiff in a matter not of public concern and not involving the news media, the defendant has the burden of proving the truth of a defamatory statement as an affirmative defense. Borg v. Boas, 231 F.2d 788, 792 (9th Cir. 1956). Moreover, where, as here, a defendant repeats a statement attributed to another, he must establish the truth of the statement he repeated because one who repeats a defamatory statement endorses it. Id. at 792-793. Thus, it does not suffice for Sanchez to assert that he accurately reported in the fax what he had been told by a crewmember. This is not the truth at issue. Rather, Sanchez must prove that Matamua did in fact take and sell two truck loads of fish.
Testimony regarding the truth of the statement was inconclusive at best. Sanchez says he saw Matamua in a truck containing fish leaving the port compound, but this fact does not establish that he took the fish. Perhaps Matamua was only a passenger. CFC and Sanchez did not establish that Matamua took two trackloads of fish. Similarly, they did not substantiate that he sold fish at any point. CFC and Sanchez have not met the burden of proving the affirmative defense of truth. The first element of falsity is present, and we move on to the second element.
2. Defamatory Meaning
To discern whether a statement is defamatory, a court should look to the impression it would naturally produce in the average reader among whom it was intended to reach. Weinstein v. Bullick, 827 F. Supp. 1193, 1197 (E.D. Pa. 1993). Sanchez accused Matamua of committing an *132illegal act in the statement at issue. Even if other crewmembers had acted similarly in the past, they could not help but get the impression from this commmiication that Matamua committed a wrongful act. Statements made by employers that attack the honesty, integrity, or competence of employees are defamatory, and can give rise to an action for defamation if not true or protected by privilege. A.S.C.A. § 43.5201(1) (“a false and unprivileged publication by writing . . . which has a tendency to injure him in his occupation” is defamation); see also Gould v. Md. Sound Indus., Inc., 37 Cal. Rptr. 2d 718, 728 (Cal. Ct. App. 1995) (statement that employee had made large error in bidding was defamatory because it would tend to injure the employee by imputing incompetence). The second element of defamatory meaning is established.
3. Privilege
CFC and Sanchez assert that the fax was protected by the common interest privilege. A.S.C.A. § 43.5202(3) applies the common interest privilege to statements made “in a communication without malice to a person interested therein by one who is also interested.”
First we analyze whether the privilege pertains to this case. Interested parties have been held to include supervisors and employees. Babb v. Minder, 806 F.2d 749, 754 (7th Cir. 1986). Sanchez asserts that the fax was published in order to protect the common interest of the employees, i.e. preventing them and their company from incurring the wrath of the port authorities for conducting illegal activities. Thus, the setting and purpose of the fax argues for it being privileged.
The common interest privilege is conditional, however, and may be lost upon a showing of abuse, malice, or a reckless disregard for the truth. Coastal Abstract Serv. v. First Am. Title, 173 F.3d 725, 735-736 (9th Cir. 1999). Malice on Sanchez’s part, and thus of CFC, was not demonstrated at trial. Sanchez testified that he did not name Matamua in the fax in order to hurt him, and Matamua was unable to establish this motive in Sanchez’s action.
Sanchez’s conduct in including this unsubstantiated statement impugning Matamua did, however, constitute an abuse of the common interest privilege. Courts have extended the privilege to protect statements relating to current and former employees, but only when they were reasonably calculated to protect a common interest of the employer and employees. See, e.g., Deaile v. Gen. Tel. Co. of Cal., 115 Cal. Rptr. 582 (1974). The privilege is forfeited when the statement includes matters that have no bearing on the interest sought to be protected. Id. The statement in this case was completely unnecessary to the promulgation of the one-fish policy. See generally Fou v. Talofa Video, 2 A.S.R.3d 152 (Trial Div. 1998). Thus, the statement implicating *133Matamua was not privileged.
In addition to abusing the privilege, Sanchez, and thus CFC, demonstrated a reckless disregard for the truth of the statement. Although Sanchez saw Matamua in a truck with fish, and heard that Matamua had taken some fish from another crewmember, he made no effort to ascertain whether it was Matamua that had taken the fish (rather than the driver), how many fish were taken, and whether any of the fish were sold. Alleging that Matamua had committed an illegal act on such a flimsy basis, without any further investigation, is conduct that rises above mere negligence and demonstrates a callous disregard for Matamua’s reputation. See, e.g., Coastal Abstract Serv., 173 F.3d at7 36 (defendant demonstrated reckless disregard by failing to check accuracy of statement); Babb, 806 F.2d at 749 (manager acted with reckless disregard of truth or falsity of statements, having made no investigation of allegations regarding former employee). The common interest privilege is accordingly unavailable to protect the communication in the present case.
4. Fault
Most states require a private plaintiff to prove negligence to recover for defamation. Brown v. Kelly Broad. Co., 771 P.2d 406, 424 n.26 (Cal. 1989) (citing 33 states as clearly adopting a negligence standard for private-figure plaintiffs). Having found that the statement was made with reckless disregard for its effect on Matamua, this clearly amounts to culpability equaling or exceeding a negligence standard. The sixth element is proven.
5. Actionability
We turn last to the issue of whether the statement is actionable with or without the proof of damages. To begin, there are three categories of damages to which victims of defamation may be entitled: compensatory, nominal, and punitive. Compensatory damages are further divided into two classes, these being general (those which the law presumes to be the natural and proximate result of the publication, including loss of reputation and emotional distress) and specific (damages that, while a probable result of the defamation, are not assumed and must be proved). 50 Am. Jur. 2d Libel and Slander §§ 374 & 375 (1995).
In an ordinary action for defamation, special damages must be proven before the plaintiff is allowed any recovery. See Partington v. Bugliosi, 825 F. Supp. 906, 915 (D. Haw. 1993). However, a statement that is libel per se is actionable without proof of special damages. Id.
CFC and Sanchez argue that allegations of criminal, and not merely *134illegal conduct, are required to establish libel per se. This is a correct statement, but treats only one category of statements constituting libel per se. Many jurisdictions also hold that in an employment context, an attack on the honesty or competence of an employee endangers his position, and is actionable per se. See, e.g., Id.; Khrongold v. Nat’l Health Ins. Co., 825 F. Supp. 996 (M.D. Fla. 1993); Sleem v. Yale Univ., 843 F. Supp. 57 (M.D. N.C. 1993); Washer v. Bank of Am. Nat’l Trust & Sav. Ass’n, 136 P.2d 297 (Cal. 1943).
Furthermore, irrelevant matter in a communication otherwise privileged may be held libelous per se. Corrigan v. Macloon, 22 F.2d 520 (9th Cir. 1927). Agreeing with the above precedent, we find that the statement was libelous per se.
The first consequence of this determination is that general damages, including injury to reputation and emotional distress, are presumed. See Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 761 (1985). The second is that punitive damages may be awarded absent a showing of actual malice on the part of the defendants. Id. With libel per se, the showing of reckless disregard in the present case suffices to impose punitive damages in order to penalize CFC and Sanchez and deter them from similar conduct in the future.
Matamua must, however, prove special damages in order to recover them. Special damages are those that are not assumed to be the necessary or inevitable result of the defamation. In this case, the special damages sought by Matamua appear to be comprised of compensation for the differences in wages he earned resulting from not being rehired as winch man on the Taimane. Captain Souza may have been influenced by the defamation when he decided to hire another winch man. However, Matamua has failed to show by a preponderance of the evidence that this factor controlled the captain’s decision. Likewise, Matamua is employable on other purse seiners and has not satisfactorily proven that the defamation has actually prevented his employment on other purse seiners equal to or higher than the winch operator’s rate he received on the Taimane. Therefore, Matamua will not recover special damages on this claim.
Order
CFC and Sanchez shall jointly and severally pay Matamua general damages for injury to reputation and emotional distress in the amount of $2,500 and punitive damages in the amount of $2,500, for a total of $5,000.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486651/ | ORDER CONSOLIDATING CASES AND CERTIFYING CLASS ACTION
I. Consolidation of Actions
On March 28, 2000, plaintiffs in Shunzhe et al. v. Daewoosa Samoa, Ltd., et al., CA No. 68-99, (“Shunzhe plaintiffs”) filed a motion to consolidate their action with the action by plaintiffs in Nguyen et al. v. Daewoosa Samoa, Ltd., et al., CA No. 133-99 (“Nguyen plaintiffs”). At a hearing on March 31, 2000, with counsel for the Nguyen plaintiffs and defendants present, the Court orally granted this motion. Finding good cause shown, we affirm our oral pronouncement granting the Shunzhe plaintiffs’ motion to consolidate their action with the Nguyen plaintiffs’ action.
II. Certification of Class Action
A. Background
On January 27, 2000, as part of their request to amend the amended complaint, the Nguyen plaintiffs requested class action certification of all Vietnamese workers employed by defendant Daewoosa Samoa, Ltd. (“Daewoosa”). We issued an order on February 22, 2000, amended on February 24, 2000, denying class action certification for claims under the Fair Labor Standards Act and requiring additional briefing on certification of the other claims.
The order laid out the prerequisites for a class action required by T.C.R.C.P. 23(a). For clarity, we repeat that discussion here, infra part *137II.B., albeit with some modifications because the class of workers for which the Court grants certification includes all garment workers rather than just Vietnamese workers, see infra at 6, and because the Court has consolidated this action with CA No. 68-99, see supra at 1, which involves a group of similarly situated Chinese workers.
B. Prerequisites to a Class Action
There are four prerequisites to a class action:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. T.C.R.C.P. 23(a). Defendants have objected to class certification on the basis of the first requirement, arguing that plaintiffs are not too numerous to identify. However, ability to identify the plaintiffs is not the criterion used to determine whether plaintiffs have met the standard in Rule 23(a)(1). Instead, the Court looks at the practicability of joinder. There are presently at least 130 named workers joined in the two actions. Hearing the arguments regarding this number of individual plaintiffs would be impractical at best and would severely strain the limited resources of the court system. Plaintiffs meet the numerosity criterion for certification as a class.
There is also no impediment to a class action under the other three prerequisites. There are many factual and legal issues common to the class. To cite a few examples, all plaintiffs allege that defendants have held all of plaintiffs’ passports and have required payment of an illegal settlement check as a prerequisite to working at Daewoosa. All plaintiffs were brought to the Territory to live and work on the Daewoosa compound, and all have been subject to Daewoosa’s mies regarding such issues as when and whether plaintiffs may leave both their rooms and the compound.
Some allegations differ. For example, the allegation of a due process violation by sending plaintiffs out of American Samoa only applies to the nine plaintiffs who were sent to Vietnam. Illegal kickbacks are alleged only as to some groups of plaintiffs. The allegations regarding breach of contract arising from illegal termination only applies to those employees who have been terminated. However, there are ample commonalities between the plaintiffs to afford them class status.
C. Certification of Class Action under T.C.R.C.P. 23(b)(3)
There are several types of class actions, and each type is maintainable *138in a different set of circumstances. We find that certification under T.C.R.C.P. 23(b)(3) is appropriate in this case. The court may certify a class action under T.C.R.C.P. 23(b)(3) when it finds that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Unlike the other types of class actions, certification is allowed under this section regardless of whether plaintiffs seek primarily monetary or injunctive relief. 5 JAMES W. MOORE ET AL., Moore’s Federal Practice ¶ 23.45 [1] (2d ed. 1985). In the present case, plaintiffs’ claims for monetary relief are a significant part of their complaint.
In determining whether common questions predominate, courts have used varying formulations. See Edgington v. R.G. Dickenson and Co., 139 F.R.D. 183, 190 (D. Kan., 1991) (common questions should be central to all claims); Doe v. Guardian Life Ins. Co., 145 F.R.D. 466, 476 (N.D. Ill. 1992) (mutual interest in resolving common questions must be greater than individual interests). The common theme, however, is that the court make a pragmatic assessment of whether common issues predominate in the entire action. As discussed above the prerequisites to class certification, there are many commonalities in questions of both law and fact. The claims are highly similar, and other potential plaintiffs have not shown a desire to have claims adjudicated separately. Despite the likelihood of individual damage issues if plaintiffs are successful, common questions predominate as to liability, providing sufficient predominance of common questions to make certification appropriate. See Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir. 1988) (certification appropriate despite individual damages issues).
Under T.C.R.C.P. 23(b)(3), a class action must also be superior to other methods of proceeding. A class action is superior when individual members are likely unable or unwilling to bring an action on their own. Rodriguez v. Carlson, 166 F.R.D. 480, 482 (E.D. Wash. 1996) (class action superior for migrant workers who did not speak English and had little understanding of the American legal system). In the present case, individual actions and test cases are not feasible, not only because of the large number of plaintiffs, but also due to the fact that many of them do not speak English and would therefore have difficulty pursuing their claims.
A T.C.R.C.P. 23(b)(3) class action is more appropriate under the present circumstances than the other types of class actions. Rule 23(b)(1) defines two types of class actions, one under Rule 23(b)(1)(A) and one under Rule 23(b)(1)(B). A class action is maintainable under Rule 23(b)(1)(A) if the prosecution of separate actions would create a risk of “inconsistent or varying adjudications with respect to individual *139members of the class which would establish incompatible standards of conduct for the party opposing the class.” There is no indication that certification would result in incompatible standards of conduct, meaning that the defendants would be forced to act inconsistently with one judgment in order to satisfy another judgment. 5 JAMES W. MOORE ET al., Moore’s Federal Practice ¶ 23.41 [2] [a] (2d ed. 1985). Furthermore, this section is inappropriate if monetary claims predominate. Id. at ¶ 23.41 [5] [a & c]. Certification under Rule 23(b)(1)(B) is appropriate when there is a risk that adjudication with respect to individual persons would be dispositive of the interest of other members. Courts generally certify under this type of class action when there are multiple claimants to a limited fund, such as with proceeds to an insurance policy, which is not the case here, and the Court sees no indication that adjudication as a class would be dispositive of the interests of other class members.
Under Rule 23(b)(2), parties may bring a class action if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” This section, often used in civil rights cases, is not appropriate when monetary damages are at issue unless they are incidental to injunctive or declaratory relief, and is therefore inappropriate here.
Order
1. CANo. 133-99 and CANo. 68-99 are consolidated.
2. Plaintiffs’ motion for class action certification under T.C.R.C.P. 23(b)(3) is granted. The class shall include all non-Samoan garment workers who presently work and formerly worked at Daewoosa. The class excludes all Daewoosa managers. The Court, however, may redefine the members of the class if it becomes appropriate to do so.
3. Plaintiffs shall draft a proposed notice conforming with T.C.R.C.P. 23(c)(2)(A-C) to advise all members of the class of their right to exclude themselves from the class if they so choose. Plaintiffs shall submit the proposed notice, and propose the means of disseminating the notice, to the Court for approval no later than April 24, 2000 and, upon the Court’s approval, shall direct the notice to the members of the class by the best means available.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486652/ | ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION OR NEW TRIAL
Defendant Suafala Williams (“Williams”) was convicted by a jury of unlawfully discharging a firearm and two counts of possession of a controlled substance. Williams filed a motion for reconsideration or new trial claiming that his conviction on the two controlled substance counts violates the double jeopardy clause of Article I, Section 6 of the Revised Constitution of American Samoa.
The facts necessary to resolve this motion are few. When Williams was apprehended by the police, a lawful search produced both marijuana and *141methamphetamine on his person. Plaintiff, the American Samoa Government (“ASG”), accordingly charged Williams with two counts of possession of a controlled substance under A.S.C.A. § 13.1022. At trial Williams requested a jury instruction to the effect that possession of the two controlled substances could give rise to only one count of possession. We declined to do so, and the jury convicted Williams of, inter alia, the two counts of possession at issue. Williams seeks reconsideration or new trial on the basis that our failure to instruct the jury per his request was erroneous and violative of constitutional protections against double jeopardy.
Under A.S.C.A. § 13.1022, it is “unlawful for a person to possess a controlled substance.” Marijuana and methamphetamine are both controlled substances as defined by statute. Marijuana is classified as a hallucinogen by A.S.C.A. § 13.1006, while methamphetamine is defined as a stimulant under § 13.1009.
The motion before us requires only an elemental exercise in statutory interpretation. “The starting point for interpretation of a statute ‘is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.’” Kaiser Aluminum v. Bonjorno, 494 U.S. 827, 835 (1990) (citing Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). A.S.C.A. § 13.1022 makes it illegal to possess “a controlled substance,” rather than “one or more controlled substances.” In its use of the singular, rather than the plural, the clear language of the statute makes the possession of one controlled substance an offense. Logically, possession of two controlled substances must give rise to two offenses. The language of the statute being conclusive, there is no need to delve into the murky depths of legislative intent.
Furthermore, Federal Courts of Appeals examining this issue have unanimously agreed with the above interpretation when examining identical language in 21 U.S.C. § 841(a)(1) regarding the possession of controlled substances. See United States v. Richardson, 86 F.3d 1537, 1553 (10th Cir. 1996); United States v. Bonilla Romero, 836 F.2d 39, 46-47 (1st Cir. 1987); United States v. DeJesus, 806 F.2d 31, 35-37 (2d Cir. 1986); United States v. Grandison, 783 F.2d 1152, 1155-1156 (4th Cir. 1986); United States v. Davis, 656 F.2d 153, 156-160 (5th Cir. 1981); United States v. Pope, 561 F.2d 663, 669 (6th Cir. 1977). Williams offers nothing on the issue to contradict this mountain of persuasive authority.
In sum, the clear language of A.S.C.A. § 13.1022 and its interpretation by numerous courts leads us to hold, as a matter of law, that multiple counts of possession may be founded upon the possession of multiple controlled substances. Our jury instructions were not, therefore, *142erroneous.
For the foregoing reasons, defendant’s motion for reconsideration or new trial is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486653/ | ORDER DENYING DEFENDANT’S MOTION TO DISMISS
Defendant Isaako Loau (“Loau”) is charged with having committed first degree assault on or about March 25, 2000. That date is the only fact specified in the information; the remainder merely repeats verbatim the statutory language describing first degree assault found at A.S.C.A. § 46.3520(a)(1)(B). Loau seeks dismissal of this charge on the basis that the information, because it is factually insufficient, subjects him to the possibility of double jeopardy and does not permit him to adequately prepare for trial.
Analysis
The American Samoa Government (“ASG”) contends that the information provides a “plain, concise and definite written statement of the essential facts constituting the offense charged” as required by T.C.R.Cr.P. 7(c)(1). ASG cites Am. Samoa Gov’t v. Afamasaga, 17 A.S.R.2d 145, 150 (Trial Div. 1990), in support of its argument that the information need only recite the statutory language of the offense. While the language it quotes from the decision seems to lend authority to this assertion, the facts 'of the case do not. First, the information in that case named the victim. Here, no victim is named. Assault being an offense committed against the person, it seems rather obvious that the person, i.e. the victim, should be identified in the charge. Second, the defendant in Afamasaga was granted a request for a bill of particulars prior to trial in which ASG was ordered to both identify the victim and the means by which defendant was alleged to have assaulted her.
Furthermore, the persuasive authority cited in Afamasága all concerned indictments that alleged specific facts. For example, the extortion counts in United States v. Williams, 679 F.2d 504 (9th Cir. 1982), alleged specific sums and the victims from whom they were extorted. Similarly, the indictment in Hamling v. United States, 418 U.S. 87, 91 (1974), identified the obscene materials on which the charges were based. Hamling held only that each element of an offense need not be supported by specific facts in the indictment, not that the indictment need contain no facts whatsoever. Id. at 119.
Based on the above, we consider the present information to be insufficient because to hold otherwise would expose Loau to multiple prosecutions. ASG must specify the victim of the assault. Officer Lutu’s affidavit states that Loau grappled with both officer Ta'afua and *144his brother as they attempted to subdue him. This could conceivably give rise to assault charges against either person under the present information, thus exposing Loau to double jeopardy.
The information’s vagueness with respect to the instrumentality of the assault also prejudices Loau’s ability to prepare for trial. Although we can surmise from officer Lutu’s affidavit that the “dangerous instrument” is a volcanic rock, failure to specify this in the information leaves ASG the freedom to substitute another instrumentality if that would better suit its purposes. We think this highly unlikely, and certainly do not intend to call into question ASG’s counsel’s integrity. However, we must insist that ASG include this fact in the information so as to afford Loau his right to a fair trial.
We agree that the information is presently insufficient, but deny dismissal. Russell v. United States stated, “it is a settled rule that a bill of particulars cannot save an invalid indictment.” 369 U.S. 749, 770 (1972). However, the court so held because defendant had a right to have an adequately informed grand jury return the indictment and not to have the indictment effectively rewritten by the prosecutor. Id. In contrast, we have no grand jury issue in the present case. Furthermore, this is not a case where “at every stage in the ensuing criminal proceeding [defendant can be] met with a different theory, or no theory at all, as to [the specifics of the offense].” Id. at 768. Rather, we take the opportunity here, before trial, to cure the defective information. Defendant is accordingly urged to move for a bill of particulars to better define the charges. ASG will have 10 days to respond.
ASG is cautioned that it must include essential facts sufficient to notify defendants of the. charges filed against them, as required by T.C.R.Cr.P. 7, or face the possibility of dismissal in the future.
Order
Defendant’s motion for dismissal is hereby denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486654/ | ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT’S MOTION FOR SUNMARY JUDGMENT
Plaintiff Velega Savali (“Velega”) filed a complaint on December 14, 1999, alleging wrongful discharge, violation of due process, and intentional infliction of emotional distress against defendants Ama Saoluaga Nua and Tuilefano Vaela'a (jointly the “Legislators”), as well as the Legislature of American Samoa (“Fono”). Velega seeks his reinstatment to his former position as Legislative Financial Officer (“LFO”) with the salary and benefits he previously enjoyed in this position, award back pay and benefits from the date of his dismissal, and award compensatory damages. The Legislators filed an answer and counter-claim on January 14, 2000, in which they denied any wrongdoing and sought damages against Velega for incompetence, failure to perform work, and slander and libel. The Legislators then filed a motion for summary judgment on January 31, 2000. The Fono filed its answer and counterclaim on February 3, 2000, in which it also sought restitution for sums paid to Velega after his termination. Velega answered the counterclaims of all defendants on February 24, 2000, and *147filed his opposition to the motion for summary judgment on March 28, 2000. At the hearing held March 30, 2000, the Fono joined the Legislators in their summary judgment motion. Counsel for all parties were present and argued the motion.
Facts
For purposes of the motion the motion before us, we glean the following from the extent of the record before us: the Fono celebrated its 50th anniversary in October 1998. To commemorate the occasion, the 25th legislature established a committee consisting of members of both houses to plan and conduct the Golden Jubilee celebration. On January 27, 1999, the committee chairman submitted a report to the Senate showing that expenditures for the celebfation had exceeded the approved budget of $100,000 by over half a million dollars. In response, the Senate established an investigative committee on February 3, 1999, to look into this mismanagement of public funds.
At the time of these events, Velega was employed as Legislative Financial Officer (“LFO”) by the Fono. He held this position from 1995 until 1999. He did not appear to experience professional difficulties during these years until the Senate’s investigation into the Golden Jubilee. At that point, Velega’s standing changed dramatically when the investigative committee’s report concluded that Velega had been at least partially responsible for authorizing the excessive Golden Jubilee expenses.
Based on the committee’s report, the Senate passed resolution 26-15 on April 1, 1999, calling for Velega’s resignation. However, President of the Senate Lutu Tenari S. Fuimaono (“Lutu”), for reasons not apparent on the record before us, rejected the resolution and refused to terminate Velega. Velega remained as LFO for about three more months, until Lutu travelled off-island. At that point, Velega was terminated on July 23, 1999 pursuant to a letter signed by the Legislators. Velega left the office and did not return to work. Upon his return from off-island, Lutu retained Velega on the payroll and continued to approve payment to Velega as if he were on paid leave. This state of affairs continued until Lutu, under pressure from other Fono members, halted compensation in November 1999. Velega has not secured other employment subsequent to termination.
Discussion
A. Summary Judgment
Defendants move for summary judgment pursuant to T.C.R.C.P. 56. Summary judgment is appropriate only when the pleadings and *148supporting papers show “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” T.C.R.C.P. 56; Etimani v. Samoa Packing Co., 19 A.S.R.2d 1, 4 (Trial Div. 1991). In ruling on a summary-judgment motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party’s evidence as true, and draw from such evidence the inferences most favorable to the opposing party. Id. We apply this standard to Velega’s three causes of action.
' B. Intentional Infliction of Emotional Distress
Velega asserts that his termination has damaged his reputation and has handicapped his ability to find other employment. Velega asserts that, in terminating him, the Legislators abused their authority to further their personal and political interests, and that such conduct was “malicious, outrageous, extreme, and exceeded all possible bounds of decency.” Velega’s hyperbole, however, fails to conceal the fact that he has alleged no conduct on which a claim of intentional infliction of emotional distress can be based.
Damages for the intentional infliction of emotional distress have been awarded in the context of terminations only where the employer’s method of terminating the employee, or conduct accompanying the termination, was outrageous. Even a cursory glance at these cases will demonstrate that the employer’s conduct must sink to despicable levels in order to provide a baSis for abusive discharge. See, e.g., Dean v. Ford Motor Credit Co., 885 F.2d 300, 303-05 (5th Cir. 1989) (employer manipulated evidence to subject employee to accusation of crime in order to provide grounds for termination); Crump v. P&C Food Markets, Inc., 576 A.2d 441, 445 (Vt. 1990) (lengthy interrogation without rest, coercion to sign untrue statement of culpability, and summary termination after 18 years of employment).
Velega has alleged no conduct that can give rise to an abusive discharge claim. The letter terminating Veiega, signed by both Legislators, is quite proper in tone. Velega has not alleged that either Legislator, or the Fono for that matter, ever maliciously attacked him verbally or in print. Velega merely alleges that he was fired for political reasons. Even if true, this assertion does not provide a basis for a claim of infliction of emotional distress. Accordingly, defendants are granted summary judgment against Velega’s claim of intentional infliction of emotional distress.
C. Wrongful Discharge
Velega asserts that he was wrongfully discharged because his termination did not comport with: (1) the requirement that he be *149terminated by mutual consent of the Speaker of the House and President of the Senate, (2) procedural safeguards on disciplinary actions against him, (3) contractual requirements of termination only for just cause, and (4) an implied covenant of good faith and fair dealing. We examine these bases for Velega’s claim of wrongful termination in sequence.
1. Termination by Mutual Consent of the Speaker and President
Velega first takes issue with the procedure utilized by the Fono to discharge him. Velega and the Fono agree that he could be terminated by the mutual consent of the Speaker of the House and the President of the Senate. The statute to which they refer, however, does not explicitly provide for this procedure. A.S.C.A. § 2.0601 states that the Speaker and President jointly appoint the LFO, but makes no mention of the process required for his or her removal. The statute further states that the legislative finance office is responsible to the Fono, not merely to these two individuals.
Be that as it may, we acknowledge for obvious separation of powers reasons, wide discretion in the Fono to implement its internal procedures. If the legislative branch has decided that removal of the LFO may be accomplished by the same means as his appointment, a logical conclusion, there can be little quarrel with that determination.
It appears, however, that Velega asserts that his removal was not accomplished by proper means. Although not explicitly pled, we conjecture that he contends that only the permanent President of the Senate, and not the President Pro Tempore, can agree with the Speaker of the House to terminate an LFO. But this is erroneous as a matter of law. Senate Rule 9 provides that “[i]n the event of illness or absence of the President, the President Pro Tempore shall assume the duties of and be invested with the powers of the President.” Thus, the President Pro Tempore of the Senate was functionally equivalent to the President while the latter was off-island. This leads to the inescapable conclusion that his concurrence with the Speaker of the House satisfied the procedure for terminating Velega pursuant to the letter of July 23, 1999.
2. Procedural Safeguards on Disciplinary Actions
Velega asserts that the process by which he was terminated violated procedural safeguards included in his employment contract. Velega, however, argues no procedural safeguards aside from the above mutual consent requirement and the following just cause requirement. Having asserted no independent procedural safeguards, this bald assertion of the same must fail.
*1503. Just Cause Requirement for Termination .
Velega claims that his employment contract with the Fono required that he be terminated only for just cause. As a matter of law, this submission is in error.
In American Samoa, employment is presumed to be at will, and the employee can be fired without just or good cause, unless there exists an express or implied contractual provision restricting the employer’s rights to terminate the employee. Palelei v. Star Kist Samoa, Inc., 5 A.S.R.2d 162, 165 (Trial Div. 1987); Banks v. American Samoa Government, 4 A.S.R.2d 113, 118-20 (Trial Div. 1987).
Velega has pled no express just cause termination requirement in any written employment contract. According to A.S.C.A. § 7.0203, Fono employees are not career service employees. Velega thus does not enjoy the just cause requirement set out for the termination of career service employees in A.S.C.A. § 7.0801. He has demonstrated no just cause provisions in any materials related to his employment, such as an employee handbook or internal personnel guidelines. See Palelei v. Star Kist Samoa, Inc., 5 A.S.R.2d at 165-166. In sum, Velega can point to no writing to establish a just cause requirement.
Instead, Velega appears to assert that just cause has been implied in his contract by the oral statements made by Lutu on the subject. Velega claims, and we take as true for purposes of summary judgment, that Lutu asserted that his termination required just cause on three occasions: on January 7, 1999 to Speaker of the House Nua; in February of 1999 to Senator Tuilefanó; and on April 21, 1999, in conjunction with his rejection of the recommendation of Senate Resolution 26-15.
To begin, a public employer’s oral promises of job security may provide a basis for including a just cause requirement in an employment relationship that is otherwise at-will. Perry v. Sinderman, 508 U.S. 593, 601-602 (1972). However, the employer must possess the statutory authority to modify the contract in order to imply the requirement. Bennett v. Marshall Public Library, 746 F. Supp. 671, 674 (W.D. Mich. 1990). As a matter of law, Lutu does not possess the authority to so modify Velega’s contract, and his statements therefore do not establish a just cause requirement for termination.
The applicable statute, A.S.C.A. § 7.0203, excludes Fono employees from career service status, and thus denies them the protection afforded by the just cause requirement set out for the termination of career service employees in A.S.C.A. § 7.0801. This statutory scheme, enacted by the Fono as a whole, cannot be abrogated or modified by the unfounded statements of only one of its members, no matter how well-intentioned *151those statements may be. In other words, Lutu, as a single legislator, did not possess the authority to unilaterally modify a statute crafted by the entire legislature so as to introduce a just cause termination requirement into Velega’s employment relationship with the Fono.
It appears that this implied contract claim, which we have now rejected, provides Velega’s only basis for asserting a just cause termination requirement. Velega has not alleged that he reasonably relied to his detriment on Lutu’s statements concerning just cause. Contra Shebar v. Sanyo Bus. Sys. Corp., 544 A.2d 377, 379-80 (N.J. 1988) (employee declined job offer from employer’s competitor after employer promised job for life, but subsequently discharged employee). Velega similarly does not argue that he took or remained in the LFO position based on just cause assurances. Contra Kestenbaum v. Pennzoil Co., 766 P.2d 280, 285 (N.M. 1988) (employee was promised long terra, permanent employment during initial negotiations). Promissory estoppel is thus likewise unavailable as a basis for the wrongful termination claim.
A course of conduct demonstrating a policy of termination only for just cause could help to establish the existence of the same in Velega’s contractual relationship, but he has asserted none. See, e.g., Kestenbaum, 766 P.2d at 286 (employer’s officials testified that company only fired permanent employees for good reason); Morriss v. Coleman Co., Inc., 738 P.2d 841, 844 (1987) (employer failed to follow established methods of discharging employees). Furthermore, while Velega’s 18 years of employment could assist in establishing a course of conduct, it alone is not sufficient to imply a just cause requirement. See, e.g., Cleary v. Am. Airlines, Inc., 168 Cal. Rptr. 722, 729 (1980); Pugh v. See’s Candies, Inc., 171 Cal. Rptr. 917, 925-26 (1981); Foley v. Interactive Data Corp., 254 Cal. Rptr. 211, 225 (1988).
In sum, Velega has failed to allege any facts upon which we could imply a just cause requirement for termination in his employment relationship with the Fono.
4. Implied Covenant of Good Faith and Fair Dealing
The implied covenant of good faith and fair dealing is a contract law doctrine that has been applied to employment contracts by approximately one fifth of the states. Mark A. Rothstein et al., Employment Law § 9.6, at 537 (1994). Even if the covenant were to apply to employment relationships within the territory, it would not afford Velega a basis for recovery in this case.
In the present case, we “view the invocation of the implied covenant as a plaintiffs attempt to impose a just cause requirement on an employment *152relationship as a matter of law, where, as a matter of fact, the relationship is at will, and [we] decline to adopt it for that reason.” Mark A. Rothstein et al., Employment Law § 9.6, at 537 (1994). Courts have held that a terminated employee “cannot use the covenant of good faith and fair dealing to transform a terminable-at-will contract into a terminable-only-for-cause employment contract by construing a discharge without cause as a breach of the covenant.” Comeaux v. Brown & Williamson Tobacco Co., 915 F.2d 1264, 1272 (9th Cir. 1990) (citing Mundy v. Household Fin. Corp., 885 F.2d 542, 544 (9th Cir. 1989); Foley v. Interactive Data Corp., 765 P.2d 373, 400 n.39 (Cal. 1988)); see also McMahon v. Penn. Life Ins. Co., 891 F.2d 1251, 1256-57 (7th Cir. 1989). It appears that Velega is attempting precisely this kind of transformation. Having failed to establish that termination only for cause was a term included in his contract, Velega may not claim protection of the implied covenant of good faith and fair dealing with respect to his discharge.
C. Due Process
Article I, Section'2 of the Revised Constitution of American Samoa provides that “[n]o person shall be deprived of life, liberty, or property, without due process of law . . . .” Public employees possess liberty, and on occasion, property interests in their employment that cannot be taken by the state without due process.
1. Property Interest
Public employees with legally recognized interests in continued employment possess a property right in that employment that the state may not take without affording the employee due process. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). State law controls whether the public employee has a property interest in her employment. Id. The Constitution, in the case of American Samoa, controls whether due process has been afforded the employee.
To have a property interest in a benefit, a person must have more than an abstract need or desire for it. He must have more than unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.
Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). In Roth, the Court held that an assistant professor had no property interest in his job because the terms of the contract specified that it was to terminate at the end of the school year. In contrast, in Perry v. Sinderman, 408 U.S. 593, 599-600 (1972), the Court held that a due process claim by a former professor on the basis that, although untenured, he had alleged facts that a de facto tenure system, described in the faculty guide, could create a *153property right in his employment. Thus the dismissal of such suit upon summary judgment motion was improper. Id.
In the present case, we have determined, in the previous section, that Velega’s contract contained no guarantees of continued employment, whether express or implied. Such a guarantee is essential to the creation of a property interest in employment. Thus Velega may not, as a matter of law, assert a due process claim on the basis of a deprivation of a property right in employment against the Fono.
2. Liberty Interest
All public employees, even those without property interests in their employment, possess liberty interests in their reputations. This liberty interest cannot be taken in conjunction with termination without affording the employee due process. Faumuina v. Am. Samoa Gov’t Employees Ret. Fund, 1 A.S.R.3d 112, 118 (Trial Div. 1997) (citing Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)).
The Supreme Court has held that a deprivation of a liberty interest in employment occurs if the charges attending dismissal are so stigmatizing that the former employee cannot secure new employment. Statements that the former employee failed to perform adequately do not constitute sufficient grounds for a due process claim. Accusations of dishonesty or immorality, on the other hand, can provide such grounds. Roth, 408 U.S. at 573. In order to trigger due process protections, the charges must be false, publicized, and provide the employee no chance to clear his name. Id.
Velega has not. alleged any specific accusations of immorality or dishonesty by the Legislators, or for that matter, any Fono member. However, construing the facts in his favor, Senate Resolution 26-15 could arguably be read to accuse Velega of a lack of integrity with respect to approving expenditures for the Jubilee celebration. The veracity of the report’s findings are an issue of fact rather than law, and the findings must be viewed as false under the summary judgment standard. The report and its charges were obviously published, and Velega has asserted that the circumstances of his termination have prevented him from securing other employment. Accordingly, we assume, for purposes of summary judgment, that Velega was deprived of his liberty interest in reputation.
A public employee whose liberty interest in his reputation has been violated has the right to notice of and a hearing to clear his name. Faumuina, 1 A..S.R.3d at 118 (citing Loudermill, 470 U.S. at 546); see also Constantineau, 400 U.S. at 437. This hearing, however, does not affect his employment status.
*154We cannot determine from Velega’s complaint whether he has had the opportunity to be heard with regards to his termination. The complaint at paragraph 42 states that “[n]ot since [the Legislators] manufactured Velega’s purported termination has the Fono offered Velega an opportunity to be heard on this employment action.” However, Velega asserts in a later affidavit that he was never afforded an opportunity to defend himself against accusations of mishandling funds. Once again, construing the facts in favor of the non-moving party, Velega has alleged sufficient facts to support his due process claim.
However, Velega should take note that even if he can prove a deprivation of his liberty interest at trial, the most he can hope for is a hearing before the Fono to clear his name. Mark A. ROTHSTEIN ET AL., EMPLOYMENT law § 9.6, at 537 (1994). He will have no other recourse by which he may seek to regain his position as LFO.
Order
For the foregoing reasons we grant defendants’ summary judgment motion on Velega’s claims of intentional infliction of emotional distress and wrongful discharge, but deny the same for Velega’s due process claim.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486655/ | ORDER ON CROSS MOTIONS FOR RECONSIDERATION AND VARIOUS OTHER MOTIONS
Procedural History
On December 2, 1999, a hearing was held in this matter on numerous motions filed by Plaintiff TCW Special Credits, Inc. (“TCW”) and *157Plaintiffs-In-Intervention Michael Datin, et. al. (“Crew”) with counsels Banning, Reardon, Rose and Thompson present. A brief description of those motions, in order of filing date, follows:
1. Crew’s Bill of Costs, filed' October 28, 1999.
2. Crew’s Motion for Reconsideration or New Trial, filed October 29, 1999. The Crew alleges a multiplicity of errors in the Court’s opinion, and order of October 20, 1999.
3. The Crew’s Request for Judicial Notice, filed October 29, 1999. The Crew requests that the Court take judicial notice of three documents relating to its Motion for Reconsideration or New Trial.
4. TCW’s Motion for Reconsideration or New Trial, filed November 1, 1999. In this motion, TCW alleges errors in the Court’s rulings regarding the award of quantum meruit to the Crew for the time period between the end of trip 26 and the arrest of the vessel, the shifting to TCW of the burden of proof concerning comparable seamen for purposes of statutory wage calculations, and the status of the auction fee.
5. TCW’s Motion for Partial Stay of Execution of Judgment, filed November 1, 1999. TCW asserts that if funds are distributed to the Crew, and TCW prevails on appeal, TCW will be unduly burdened in its, attempts to recover those funds. TCW accordingly requests a stay of execution of judgment, and also seeks a waiver of the supersedeas bond requirement.
6. TCW’s Motion for Clarification, filed November 2, 1999. TCW seeks clarification from the Court as to whether the $53,121.75 paid broker Michael McGowan is included in the $90,015.00 assessed by the Court as auction fees.
7. TCW’s Motion for Order Approving Disbursement of Funds and for Determination of Attorney Fees and Costs, filed November 12, 1999. TCW stipulates to a distribution of $457,657.60 in partial satisfaction of judgment but seeks to condition this distribution on the Court’s examination of the Crew’s legal fees.
8. Crew’s Request for Sanctions against TCW, filed November 29, 1999.
The Crew argues that TCW’s motion concerning legal fees is meritless because the Court denied a similar motion on May 7, 1999.
*158Analysis
I. Crew’s Bill of Costs
Appellate Court Rule 39(d) “requires that a party who desires costs to be assigned shall state them in an itemized and verified bill of costs which shall be filed with the clerk, with proof of service, within 14 days after the entry of judgment.” Pene v. Bank of Hawaii, 18 A.S.R.2d 75, 76 (App. Div. 1991). The Crew has met this requirement by filing its bill of costs on October 28, 1999. “Except when express provision therefor is made either in a statute of American Samoa or in these rules, costs shall be allowed as of course to the prevailing party unless, the court otherwise directs . . . .” T.C.R.C.P. 54(d). No provision exists, in the rules or statutes disallowing costs in the present case.
A. Prevailing Party
The threshold question is whether the Crew is “the prevailing party”;; under T.C.R.C.P. 54(d). TCW argues that the. Crew cannot be considered to have prevailed for three reasons: first, the Crew did not prevail on all the issues before the Court; second, the Crew recovered roughly less than a third of its claimed damages; and third, the Crew would have been better off accepting TCW’s settlement offers than in proceeding to trial.
The Crew has clearly, on the whole, prevailed against TCW in this lawsuit. A plaintiff recovering a judgment is a “prevailing party” to whom costs are owed, even though she may fail to sustain all of her claims in the action. Kaiser Indus. Corp. v. McLouth Steel Corp., 50 F.R.D. 5, 8 (D.C.Mich. 1970) (citing 6 James Wm. Moore et al., Moore’s Federal Practice ¶ 54.70[4] (3d ed. 1999)); see also Simmons v. Am. Export Lines, Inc., 26 F.R.D. 111, 112 (D.C.N.Y. 1960) (where plaintiff prevailed on one of three issues, plaintiff recovered one-third of its costs). Accordingly, the Crew may recover costs under T.C.R.C.P. 54(d).
We take note of a few principles before beginning the piecemeal analysis of the Crew’s costs. First, the Court notes that T.C.R.C.P. 54(d) provides wide discretion in the apportionment and taxation of costs. See, e.g., Jones v. Schellenberger, 225 F.2d 784, 794 (7th Cir. 1955). Guiding this discretion is the mle that costs are not equivalent to expenses, but include only such statutorily enumerated items as court fees and witness fees. Hairline Creations, Inc. v. Kefalas, 664 F.2d 652, 655-56 (7th Cir. 1981). The Court also recognizes that items proposed by winning parties as costs should always be given careful scrutiny. Farmer v. Arabian Am. Oil. Co., 379 U.S. 227, 235 (1964).
*159Although TCW is correct in stating that the Court is not obligated to follow federal law in determining the validity of costs, its argument that the Court should utilize a more stringent standard is not convincing. A.S.C.A. § 43.0101(a) requires that costs be “in an amount which is reasonable, fair and just compensation for the service rendered.” We fail to see how this standard is any more conservative than the reasonableness standard used by federal courts in awarding costs under 28 U.S.C. § 1920. We shall accordingly utilize 28 U.S.C. § 1920 and its accompanying caselaw to examine costs proffered by the Crew.
B. Witness Fees for Parties who were also Witnesses
We turn first to witness fees sought by the Crew for Bratiko Gregov, Tonci Jusic, Guillermo Gonzalez, and Gojko Milisic. These four were all parties in intervention to the case. 28 U.S.C. § 1920(3) admittedly makes no distinction between party and non-party witnesses. “The general rule, however, is that ‘parties may not normally collect witness fees.’” Haroco v. Am. Nat. Bank & Trust of Chicago, 38 F.3d 1429, 1442 (7th Cir. 1994) (citing Barber v. Ruth, 1 F.3d 636, 646 (7th Cir. 1993)); see also Hodge v. Seiler, 558 F.2d 284, 287 (5th Cir. 1977). The Crew argues that witness fees should be allowed for these four parties because they were also witnesses for other parties to the case. While these parties may have played multiple roles, the Crew offers no argument for establishing an exception to the general rule disallowing costs for parties who are also witnesses.. We decline to make such an exception and instead agree with the Ninth Circuit that “the expenses of witnesses who are themselves parties are not taxable.” Evanow v. M/V Neptune, 163 F.3d 1108, 1118 (9th Cir. 1998). Witness fees for these four parties are denied, and the amount of $13,928.92 is deducted from the Crew’s costs..
C. Expert Witness Fees
Expert witness fees are generally limited by statute, and taxation of costs in excess of these amounts are outside a court’s discretion unless expressly authorized by statute. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-45 (1987). The Crew having cited no fee-shifting statutes applicable to the present case, the Court will not tax costs in excess of those authorized by 28 U.S.C. § 1821 for witnesses Robert Wallace and George Copitas, these being $3889.92 for Robert Wallace and $3680.92 for George Copitas. The fees for services of these two witnesses, in the amounts of $20,497.26 and $4100.00 respectively, are accordingly denied as costs.
D. Interpreter fees in the Deposition of Goran Milisic
28 U.S.C. § 1920(6) specifically allows recovery of costs for interpreters *160and special interpretation services. The Crew is thus statutorily authorized to recover costs arising out of interpreter Ivanka Gavrilovic Smith’s services in the deposition of Goran Milisic. TCW asserts, however, that because this deposition was never used at trial, the interpretive services involved in its preparation cannot be taxed as costs. The issue of whether the interpreter’s fees should be allowed as costs, however, depends on whether the deposition was reasonably necessary at the time it was taken, not whether it was used at trial. See, e.g., Kaiser Industries Corp. v. McLouth Steel Corp., 50 F.R.D. at 9; Bennet Chem. Co. v. Atl. Commodities, Ltd., 24 F.R.D. 200, 205 (D.C.N.Y. 1959). “Whether a deposition or copy was necessarily obtained for use in the case is a factual determination to be made by the [trial] court.” Fogelman v. Aramco, 920 F.2d 278, 285-86 (5th Cir. 1991). The burden of proof rests on the challenger to demonstrate that a deposition was unnecessary or that costs were unreasonable. See, e.g., Kern County v. Ginn, 194 Cal. Rptr. 512, 516 (1983); Horner v. Marine Eng’r’s Ass’n., 1 Cal-Rptr. 113, 117 (1959). TCW has failed to demonstrate that the deposition in question was not reasonably necessary at the time it was taken. The interpreter fees in the amount of $300.00 will accordingly be allowed by the Court as costs.
E. Depositions
28 U.S.C. § 1920 permits deposition expenses to be awarded as costs. Alflex Corp. v. Underwriters Lab, Inc., 914 F.2d 175, 177-78 (9th Cir. 1990). TCW is correct in stating that the Ninth Circuit Court of Appeals has upheld decisions of district courts that deny costs for depositions solely because they were not used at trial. Wash. State Dept. of Transp. v. Natural Gas Co., 59 F.3d 793, 806 (9th Cir. 1995) (holding that such a decision was within the trial court’s discretion). The Ninth Circuit has never, however, stated that costs for depositions not used at trial should be denied as a general rule. We follow the majority of jurisdictions in allowing the recovery of costs of depositions, whether or not used at trial, if the taking of the deposition seemed reasonably necessary at the time it was taken. LaVay Corp. v. Dominion Fed. Sav. & Loan Ass’n, 830 F.2d 522, 528 (4th Cir. 1987); Fogelman v. Aramco, 920 F.2d at 285; Soler v. Waite, 989 F.2d 251, 254-55 (7th Cir. 1993). As stated above, the reasonable necessity of the deposition must be disproved by the challenger. TCW has failed to argue that the depositions were not reasonably necessary; their expenses will accordingly be taxed as costs.
F. Attorney Travel Expenses
TCW is correct in stating that attorney travel expenses are not allowable as costs. However, TCW does not indicate specific travel expenses for which the Crew’s attorneys seek reimbursement, and the Court has been unable to locate any such expenses in the Crew’s Bill of *161Costs.
G. Cost Apportionment for Depositions of Thomas Meneghini and Narciso Castro
TCW asserts that the depositions of both Thomas Meneghini and Narciso Castro concerned multiple cases, and that the costs related to these depositions should be allocated among these cases accordingly. The Crew does not dispute the general principle of allocation, but merely argues that both depositions concerned matters pertinent to the present case. We will accordingly examine the depositions and allocate costs based upon their content.
From the transcript of the deposition of Thomas Meneghini, volume II, taken on March 22, 1999, offered by the Crew as exhibit 2, it appears that the deposition covered both the Chloe Z and the Kassandra Z cases. The testimony regarding the Chloe Z may have been useful in this case, but it is obviously more pertinent to the Chloe Z matter. The Court having no more information regarding the relative amount of the deposition spent on each case, it will split the costs of this deposition equally between the two cases. This results in an award of $2,272.84 for the depositions of Meneghini, leaving $2,272.84 to be subtracted from the total bill of costs submitted by the crew.
From the transcript of the deposition of Narcisco Castro, taken March 20, 1999, it appears that the deposition concerned only the present case. The costs of the deposition will therefore be allowed.
H. Process Server Fees
TCW asserts that costs should not be allowed for service of process on parties who were not deposed or called at trial, but it cites no authority to support this proposition. The Crew similarly offers no support for its assertion that private process server fees are properly allowed as costs. The Ninth Circuit has held that private process server fees may be taxed as costs under 28 U.S.C. § 1920(1). Alflex Corp., 914 F.2d at 178. The Second Circuit flatly disagrees. United States v. Merritt Meridian Const. Corp., 95 F.3d 153, 172 (2d Cir. 1996). The Second Circuit’s reason for so holding is that private process server fees are not literally “marshall’s fees” allowed as costs under 28 U.S.C. § 1920(1). We think that the Seventh Circuit has struck the proper balance, and follow its holding that a party may recover expenses for service of process in the amount of what a marshal would have charged. Collins v. Gorman, 96 F.3d 1057, 1059-60 (7th Cir. 1996). These charges, calculated according to High Court Rule 31, amount to $180.00. The difference between this figure and that proposed by the Crew is $695.70, a sum that will be subtracted from the Crew’s allowed costs.
*162I. Conclusion and Award of Costs
The Crew has requested an award of $69,838.46 in costs. Subtracting the above figures from this proposed award, we award the Crew $28,343.74 in costs.
II. Crew’s Motion for Reconsideration or New Trial
A. Grounds for Reconsideration or New Trial
T.C.R.C.P. 59(a) does not specify the grounds for a new trial, but in nonjury actions, a great majority of federal jurisdictions hold that a new trial may be granted where the record shows a manifest error of law or fact. See, e.g., Milwee v. Peachtree Cypress Inv. Co., 510 F. Supp. 284, 290 (D.C.Tenn. 1978), aff’d 644 F.2d 885 (6th Cir. 1981). In the alternative, a court may alter or amend judgment under T.C.R.C.P. 59(e) if it has made a clear error of law or fact. See, e.g., Knepp v. Lane, 859 F. Supp. 173, 175 (E.D.Pa. 1994). The standard for either reconsideration or new trial being thus essentially identical, we will examine our prior order for clear errors of law or fact.
B. Statutory Wages for Trips 16-24
“Void” and “voidable” contracts are two very different legal animals. A void contract is a legal nullity, and cannot serve as the basis for equitable estoppel. In the event that the oral agreements between the Crew and KZFC were void, partial payment on their terms does not constitute a bar to the recovery of statutory wages under 46 U.S.C. § 11107. A voidable contract, on the other hand, may be affirmed by the parties and rendered valid by the doctrine of estoppel. Parties to a transaction conceded to be fair and supposed to be lawful, on the faith of which many other transactions have been entered into, are estopped from questioning its validity and repudiating the transaction to the injury of others. Branch v. Jesup, 106 U.S. 468, 476 (1883). If the oral agreements were merely voidable, the Crew could be found to have affirmed them through acceptance of wages under their terms.
Thus, the deciding factor in awarding statutory wages for trips 16-24 is whether Congress, by using the word “void” in 46 U.S.C. § 11107, actually meant void rather than voidable. The Court has reconsidered its holding on this matter and has decided that it made a clear error of law in construing the oral agreements as voidable. The statutory scheme mandates that void be given its literal meaning, and as a result, the majority of the Crew will recover statutory wages for trips 16-24.
“The starting point for interpretation of a statute ‘is the language of the statute itself. Absent a clearly expressed legislative intention to *163the contrary, that language must ordinarily be regarded as conclusive.’” Kaiser Aluminum v. Bonjorno, 494 U.S. 827, 835 (1990) (citing Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). On the other hand, plain language is not always determinative. For example, the court in United States v. Peco Int’l, 243 F. Supp. 250, 253-54 (D.C.Z. 1965), held that Congress actually meant “voidable” when it wrote “void” in a statute concerning the Canal Zone. In fact, numerous elements must be considered when parsing legislative intent, including: the statute’s language, purpose, and reach; the class of persons sought to be controlled; the wrong the statute seeks to prevent; legislative history; and the effect of holding contracts in violation of the statute void. 17A Am.Jur.2d Contracts § 249 (1991).
Taking each factor in turn, the plain language of the statute says that the oral fishing agreements in this case were “void.” 46 U.S.C. § 11107. While not determinative, this language obviously weighs in favor of finding the oral agreements for trips 16-14 void.
Courts examining the purpose of statutory wage recoveries under 46 U.S.C. § 11107 have decided that the statute is intended, in part, to penalize ship owners. Seattle-First Nat'l Bank v. Conaway, 98 F.3d 1195, 1198 (9th Cir. 1996) (citing Bjornsson v. U.S. Dominator, Inc., 863 P.2d 235, 238-40 (Alaska 1993)). This purpose of the statute weighs in favor of reading void as void. If the statute is intended, in part, to penalize shipowners, awarding statutory wages in amounts greater than agreed wages best facilitates this goal.
On the other hand, the following proposition concerning the statute’s reach argues for the opposite result.
A distinction may also be made between statutes which forbid certain contracts to be made or certain acts to be done and those which prescribe a certain mode and manner of doing the act, or the procedure to be followed in making the contract, the inference being that a violation of a statute of the latter kind does not necessarily render a contract void.
United States v. Cont’l Fwdg. Co., 311 F. Supp. 956, 964 (Cust. Ct. 1970). Seeing as 46 U.S.C. § 10601 does not forbid oral fishing agreements, but merely specifies that fishing agreements be in written form, this factor weighs in favor of finding the oral agreements voidable rather than void.
The class of persons sought to be controlled by the statutory scheme is comprised of shipowners and masters on board comparatively large fishing vessels, both of whom are responsible for ensuring that fishing agreements are in writing. We are uncertain as to what effect this *164determination should have on the void vs. voidable decision, but if we consider the class of persons sought to be protected, seamen’s status of wards of admiralty also argues for affording them maximum protection, and thus statutory wages, under the statute by holding any oral fishing agreements to be void. See, e.g., Cox v. Roth, 348 U.S. 207, 209-10 (1954).
Consideration of the wrong the statute seeks to prevent, on the other hand, argues for finding the contract merely voidable rather than void. The primary harm the statute seeks to prevent is the failure to pay seamen fair wages for their services. It does not entitle seamen to recover penalty wages. TCW Special Credits v. Chloe Z Fishing Co., 129 F.3d 1330, 1332 (9th Cir. 1997). The Crew having received fair compensation for their services, this Court’s award of compensatory wages for the difference between agreed wages and those actually paid comports with the statute’s compensatory intent.
In terms of legislative history, the two relevant Congressional reports shed but little light on this issue. The portion of the section-by-section analysis of House Report 98-338 treating § 11107 states that “Section 11107 entitles seamen engaged contrary to any United States law to leave the service of the vessel without loss of wages.” We infer from this analysis that the legislative intent underlying § 11107 is to ensure only that seamen are compensated for their work. This goal would be served by holding the Crew’s oral agreements to be voidable, and thus grounds for estoppel.
However, the effect of holding the oral agreements merely voidable would be to allow shipowners to avoid using written fishing agreements with impunity. Without the threat of statutory wages, there appears to be little incentive for ship owners to provide written fishing agreements. Seamen will likely not know their rights under the statutes prior to sailing. Even if apprised of these rights, they will likely not be able to go without pay for long periods of time and will be forced by economic circumstances to accept wages on the ship owners’ terms. If the owners are subsequently held to owe only agreed wages, their failure to offer written fishing agreements entails no legal consequences.
Granted, this case does not seem to present such a situation, but this Court’s prior order would bar statutory wages in a case where crewmembers accepted a portion of agreed wages and subsequently sued under 46 U.S.C. § 11107 at their earliest opportunity. Failing to award statutory wages in such a case would jeopardize the well-being of seamen and contravene the purpose of the statutory scheme. Accordingly, the Court amends its order to award statutory wages to the Crew for trips 16-24, less wages already received for those trips. Gojko Milisic and Raymond Falante will not, however, receive statutory wages *165for these trips for reasons described more fully in subsection E, infra.
This Court awarded a sum of $54,346.18 to the Crew for “short checks,” the difference between wages received and agreed wages, for trips 16-24. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 163, 185 (Trial Div. 1999). This amount is to be replaced by damages calculated according to statutory wages for the same trips. The Court has mled on the rate of wages per ton to be used in this calculation at pages 34-35 of its prior order. These are:
Fish Captain $45.00 (Yolanda Z)
Master $25.00 (Yolanda Z)
Chief Engineer $29.00 (Larry Z)
Assistant Engineer $17.00 (SoleilZ)
Helicopter Pilot $13.00 (ChloeZ)
Deck Boss $15.00 (Kassandra Z)
Cook $10.50 (Kassandra Z)
Seaman/Deckhands $11.50 (Larry Z)
These rates, multiplied by the adjusted tonnage for trips 16-24, produce statutory wages owed the Crew for these trips. We rely on Trial Exhibit 23, in this instance utilizing the calculations present at Tab 23. This exhibit breaks down damages calculated according to the “Highest Wage Paid by the Fleet Times the Discounted Weight Per Settlement Sheets” for each crewmember for each trip. Totals for each crewmember for trips 16-24, excluding Raymond Falante and Gojko Milisic, follow:
Ante Didak $14,589.47
Dragan Gobin $16,896.90
Guillermo Gonzalez $59,986.12
Elvir Jakicevic $43,340.11
Tonci Jusic $44,045.60
Maij an Matulic $35,495.28
Todor Matulic $35,065.11
Mirislav Pavic $38,313.76
Arsen Pherhat $38,848.45
Zoran Ramov $44,617.28
Goran Strucic $24,343.27
Dragon Drazic $22,589.80
Ante Dragovic $37,024.48
Goran Milisic $11,004.91
Goran Uzelac $40,427.85
Dragan Blaslov $12,597.71
Venci Matulich $11,491.47
Branko Gregov $26,340.07
Nino Sarin $19,962.12
Zarko Skific $26,340.07
*166Andrew White $ 5,671.49
TOTAL $608,991.32
The above total represents the amount due crewmembers, calculated with statutory wages according to 46 U.S.C. § 11107 for trips 16-24, excluding Raymond Falante and Gojko Milisic.
For reasons discussed below in subsection E, infra, Raymond Falante and Gojko Milisic, as masters, are not entitled to statutory wages under 46 U.S.C. § 11107. Their award for trips 16-24 will accordingly be based on Trial Exhibit 52, which lists unpaid agreed wages due each crewmember for each trip. As in our Opinion and Order at page 33, we adjust the tonnages shown in this exhibit in favor of the Crew by adding 203.5 tons for trip 17 and 83.9 tons for trip 18. After adding their unpaid wages for trips 16-24, we arrive at the following awards:
Falante, Raymond $6,182.60
Milisic, Gojko $16,976.00
C. Raymond Falante’s Wage Claim for Trip 23
The Court recognizes a clear error of law in its determination that Raymond Falante should not receive wages for the 180 tons of fish caught while he served as fish captain during trip 23. Cases are legion that assert, as a general principle of maritime law, that a seaman who falls ill or is injured during a voyage is entitled to maintenance, cure, and wages for the remainder of the voyage. See, e.g., Aguilar v. Standard Oil Co., 318 U.S. 724, 731-32 (1943); Lipscomb v. Foss Maritime Co., 83 F.3d 1106, 1108-09 (9th Cir. 1996); Berg v. Fourth Shipping Assoc., 82 F.3d 307, 309 (9th Cir. 1996); Gardiner v. Sea-Land Service, Inc., 786 F.2d 943, 946 (9th Cir. 1986); Dragich v. Strika, 309 F.2d 161, 163 (9th Cir. 1962).
TCW asserted during the Hearing on Motion for Reconsideration that paying two persons for the same job was not customary practice in the industry. Similarly, Triál Exhibit 53 shows that KZFC believed it should only be paying one person. Be that as it may, this position runs contrary to well-established maritime law and thus constitutes a clear error that the Court must correct at this point in time.
According to the mle cited above, Fish Captain Milisic was legally entitled, under general maritime law, to the wages paid him for the 180 tons of fish in question, even though he left the ship due to illness before these fish were caught. Seeing as Raymond Falante was serving as fish captain when the fish were actually caught, he too is entitled to fish captain wages for the same 180 tons of fish. Thus, the Court accordingly awards Raymond Falante payment due on this claim in the amount of *167$7200.00, being 180 tons at the agreed wages of $40.00 per ton.
D. Highest Rate of Wages Issue & Adjusted Tonnage
The Court affirms its interpretation of “rate of wages” as found within 46 U.S.C. § 11107. Payments made on the basis of gross tonnages were shown during trial to be anomalous occurrences, and thus do not provide a legitimate basis for computing the wages of a comparable seaman for purposes of the statute. The Crew attacks this same issue from a different angle when it states that because the use of adjusted tonnages was in dispute, it should not serve as the basis for agreed wages under 46 U.S.C. § 11107. Again, this Court disagrees. The preponderance of the evidence demonstrates that adjusted tonnage is almost invariably the measure in the industry for calculating wages. Thus, the “highest rate of wages that could be earned by a seaman at the port of hire” is properly calculated on the basis of adjusted tonnage. F/V Chloe Z Fishing Co., 129 F.3d at 1333.
E. Raymond Falante and Goiko Milisic were both Responsible under 46 U.S.C. § 10601 for Ensuring that Fishing Agreements Complied with the Law
46 U.S.C. § 11107 does not explicitly exclude masters from recovering statutory wages under its provisions. However, this section must be read in light of the larger statutory scheme, the Seamen Protection and Relief Act, of which 46 U.S.C. § 10601 is also a part. Under § 10601, “the master or individual in charge of a fishing vessel. . . shall make an [sic] fishing agreement in writing with each seaman. . . .” It is obvious, from the plain language of the statute, that Falante, as master of the Kassandra Z, had a duty to make written fishing agreements.
Although Gojko Milisic was serving as the fish captain, rather than master, of the Kassandra Z, he was similarly responsible for ensuring the presence of written agreements. Milisic held a master’s license, possessed broad authority to hire and select members of the crew, and acknowledged that he performed “all duties required by any Master and Fish Captain.” Response to TCW Written Discovery, 1.9(c), dated October 25, 1998; Tr. at 25-26, 40. Awarding statutory wages for a violation of § 10106 to the very people who violated § 10106 would contravene the well-established legal principle that one cannot benefit from one’s own violation of the law. Such a result would also contravene the purpose of § 10106, because it would remove any incentive to comply with the statute. That outcome obviously does not comport with the overall statutory scheme, inclusive of 46 U.S.C. § 11107, and thus Milisic and Falante will not recover statutory wages for the trips during which they were obliged to provide written fishing *168agreements.
F. Interest Determination
The Crew alleges an abuse of discretion in the Court’s failure to award prejudgment interest. An abuse of discretion occurs when a court issues a judgment that has no foundation in fact or law. BLACK’S Law Dictionary 11 (6th ed. 1991). The law of this jurisdiction clearly provides a basis for the denial of prejudgment interest. To reprise, any determination by this Court regarding the award of prejudgment interest “lies soundly within the court’s discretion.” See Interocean Ships, Inc. v. Samoa Gases, 26 A.S.R.2d 28, 43 (Trial Div., 1994) (citing Orduna S.A. v. Zen-Noh Grain Corp., 913 F.2d 1149, 1157 (5th Cir. 1990); Masters v. Transworld Drilling Co., 688 F.2d 1013, 1014 (5th Cir. 1982) (citations omitted)). The Court remains unconvinced that a failure to award prejudgment interest from the dates requested by the Crew will constitute a failure in deterrence. The interest determination is accordingly affirmed.
G. Dates of Quantum Memit Award
The Court affirms its decision to award quantum memit wages from the date the fish were off-loaded and the vessel was cleaned, May 21, 1996. The Court reiterates that “the record includes ample evidence to support the common understanding that a fishing trip is only completed when the catch has been off-loa'ded to the cannery and the vessel has been cleaned.” F/V Kassandra Z, 3 A.S.R.3d at 181. In addition, although the Crew asserts that the District Court of Guam awarded quantum memit wages beginning ten days after the Chloe Z arrived in Guam, the Crew neglects to cite to this ruling. In fact, in its initial order, the Guam District Court awarded prejudgment interest only from the date when crewmembers intervened in the case, a result much less favorable to the Crew were this Court to follow it. F/V ChloeZ Fishing Co., 129 F.3d at 1334.
H. Rate of Wages
The Crew states that the Court’s setting of wages according to those of comparable seamen is in error. The Court directs the Crew’s attention to the Ninth Circuit’s decision on this issue, which the Court finds to be much more persuasive authority than that cited by the Crew. F/V Chloe Z Fishing Co., 129 F.3d at 1334. The Court accordingly affirms its determination that statutory wages will be set according to those paid comparable seamen.
*169I.Comparable Seamen
The Crew next challenges the Court’s determination of comparable seamen. While our determination of comparable seamen is not semantically identical to the ratings system used by the Ninth Circuit, our justification and purpose are identical. “Cases construing the predecessor statutes of 46 U.S.C. § 11107 consistently held that a seaman’s ‘highest rate of wages’ was to be measured against seamen with the same rating or similar duties.” F/V Chloe Z Fishing Co., 129 F.3d at 1334 (emphasis added). This Court has accordingly made its best effort to identify seamen with similar duties for purposes of calculating statutory wages and affirms these determinations and accompanying calculations.
J. Raymond Falante’s Deposition
The Court refers the Crew to T.C.R.C.P. 32(a)(3). Raymond Falante was not shown to be unavailable. His deposition was therefore properly excluded under this rule.
As for Trial Exhibit 53, T.C.R.C.P. 32(a)(4) states that if a portion of a deposition is used by a party, “an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced . . . .” The Crew failed to establish at trial that the circumstances regarding the faxing of Exhibit 53 “ought in fairness” have been considered along with the exhibit itself. It offers no new arguments in its motion for reconsideration. The document speaks for itself requires no explanation of the circumstances under which it was transmitted. We therefore affirm our decision to exclude Raymond Falante’s deposition.
K. Income Tax Deductions
As TCW does not object to awarding income tax deductions to Raymond Falante and Guillermo Gonzalez, they shall be awarded unpaid income taxes in the amounts of $6,608.00 and $1,897.00 respectively.
L. Attorney’s Fees
Absent statutory authorization, a prevailing party in an admiralty case is generally not entitled to an award of attorney’s fees. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28, 41-42 (Trial Div. 1994). No statutory authorization exists in this case, and the Crew has not proven bad faith on the part of TCW sufficient to convince this Court to impose attorney’s fees. The Court accordingly affirms its decision to deny the award of attorney’s fees.
*170M. Revised Award to Crew
Statutory Wages for Trips 16-24 (Revised Award) $ 608,991.32
Raymond Falante & Gojko Milisic’s Wages for Trips 16-24 $ 23,158.60
Raymond Falante’s Fish Captain Wages for Trip 23 $ 7,200.00
Income Tax Deductions $ 8,505.00
Trips 25 and 26 (Fish Captain/Master) $ 74,488.08
Trips 25 and 26 (Remainder of Crew) $ 348,278.13
Port Wait Time $ 130,805.28
Repatriation $ 19,500.00
Miscellaneous Damages $ 6,627.48
Pre-Interest Total $1,226,553.92
The Court will calculate interest in the same manner as it did at page 40 of its prior opinion and order. The Crew is owed 20.93% of the interest accrued on the original deposit as of the date of this order. This amounts to $169,601.63, bringing the Crew’s total damages award to $1,396,155.55.
This sum is to be awarded to individual crewmembers in the following amounts:
Ante Didak $ 32,655.64
Dragan Gobin $ 19,233.32
Guillermo Gonzalez $ 86,491.67
Elvir Jakicevic $ 67,085.67
Tonci Jusic $ 86,630.14
Marjan Matulic $ 77,026.24
Todor Matulic $ 76,577.34
Mirislav Pavic $43,611.59
*171Arsen Pherhat $ 44,220.22
Zoran Ramov $ 50,786.73
Goran Strode $ 64,190.13
Dragon Drazic $73,388.18
Ante Dragovic $42,144.04
Goran Milisic $ 59,428.45
Goran Uzelac $ 63,607.43
Dragan Blaslov $ 14,339.66
Venci Matuljch $ 13,080.45
Branko Gregov $66,631.51
Nino Sarin $ 22,722.38
Zarko Skific $ 65,188.97
Andrew White $ 6,455.71
Carlos Vinches $25,251.97
Michael Datin $ 44,689.61
Thomas Adams $ 18,386.12
Zarko Marcina $ 19,197.58
Ante Vikario $ 19,197.58
Miroslav Skific $ 19,197.58
Ante Fizulic $ 19,197.58
Raymond Falante $44,391.46
Gojko Milisic $110,700.64
HI. Crew’s Request for Judicial Notice
Under Trial Court Rule of Evidence 201(d) “[a] court shall take judicial notice [of an adjudicative fact] if requested by a party and supplied with the necessary information.” An adjudicative fact is “one not subject to reasonable dispute . . . .” In the present case, the Crew requests that the Court take judicial notice of certain documents offered in support of its motion for reconsideration or new trial. Its purpose in so doing is to finesse the Court into taking judicial notice of a specific fact embedded within these documents, namely, that the seamen in these cases had received partial wages before suing under 46 U.S.C. § 11107. The Crew’s ultimate goal is tq prove that other jurisdictions have awarded statutory wages in cases where seamen had already been paid part of their agreed wages.
Although disingenuous, the Crew’s request for judicial notice is granted. The Court recognizes the proffered documents as “sources whose accuracy cannot reasonably be questioned,” and takes judicial notice of the fact that the seamen in the Chloe Z and Seattle First cases had received partial payment of wages for fishing trips upon which they based 46 U.S.C. § 11107 statutory wage claims.
*172IV. TCW’s Motion for Reconsideration or New Trial
A. Grounds for Reconsideration or New Trial
See the discussion in the section discussing the Crew’s Motion for Reconsideration or New Trial, supra.
B. Quantum Meruit Award
TCW asserts that the Court erred in permitting the Crew to recover wages in quantum meruit for the time period running from the end of trip 26 to the date the vessel was arrested. This award was clearly proper according to precedent both within this jurisdiction and jurisdictions where this specific issue has been adjudicated. See Zuguin v. M/V Captain M.J. Souza, 23 A.S.R.2d 7 (Trial Div. 1992), TCW Special Credits v. Chloe Z Fishing Co., No. 97-15726 at 7-13 (D. Guam filed June 19, 1998).
The quantum meruit award has two purposes. First, to compensate crewmembers for actual work performed on board the vessel, and second, to compensate the Crew for remaining available to KZFC. Gojko Milisic, like the rest of the Crew, did not seek work because he relied upon repeated assurances from the owners that the ship would be sailing again shortly. For this reason, whether he was in Pago Pago or California at the time, Milisic was entitled to recover quantum meruit for remaining available to RZFC.
C. Comparable Seamen
TCW also argues that the Court erred in calculating statutory wages for Trips 25 and 26, asserting that it ignored factors of “rank, job classification, duties, and ability.” This assertion is flawed. The figures provided by the Crew (and not disputed by TCW) that served as the basis for the award clearly differentiated between wages paid to seamen performing different jobs and holding different positions.
The Crew having fulfilled its burden of production by providing these figures, the burden shifted to TCW to refute them. TCW failed to do so. Shifting this burden to TCW is completely in accord with the rule that “it is normally within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion .. ..” Patterson v. New York, 432 U.S. 197, 201-202 (1977). In shifting the burden to TCW, “we recognize that admiralty law stands apart from other areas of federal law. Its longstanding principles reflect unique norms and further distinct goals.” Hood v. Knappton Corp., 986 F.2d 329, 331 (9th Cir. 1993). One of these distinct goals is to afford special protection to seamen.
*173This Court affirms its decision to shift the burden of production to TCW for purposes of refuting the Crew’s rates of wages for comparable seamen. This decision both protects seamen and fully comports with the well-established practice of allocating the burden of production to the party best able to access the necessary information. In this case, TCW can access pay rates for every crewman in the entire fleet. The Crew, on the other hand, would most likely have to conduct a lengthy and expensive discovery process to obtain the very same information. The burden was thus fairly shifted to TCW. TCW, unable to shoulder this burden, fails to offer any evidence that would convince the Court that it has made a manifest error.
D. Auction Fees
Finally, TCW questions the imposition of marshall’s auction fees in the amount of $90,015.00. This sum was calculated according to High Court Rule of Civil Procedure 31(d), which charges the following fees:
(d) for seizing or levying on property, disposing of same and paying over money ... a commission of 3% on the first $1000 of the amounts collected, however in no event less than $10, and l/<% on the excess of any sum over $1000;
These mandated fees do not include, and are over and above, the compensation awarded by this Court on October 31, 1996, to broker Michael McGowen for his services in the sale of the vessel F/V Kassandra Z.
V. TCW’s Motion for Partial Stay of Execution of Judgment
Under Federal Rule of Civil Procedure 62(d), a party appealing the order of a district court involving a money judgment is entitled to a stay of that judgment as a matter of right upon posting of a supersedeas bond. See Am. Mfrs. Mut. Ins. Co. v. Am. Broadcasting-Paramount Theatres, Inc., 87 S.Ct. 1, 3 (1966). However, under ihe laws of American Samoa, a stay upon posting of a supersedeas bond is not a matter of right, but is rather “[sjubject to the discretion of the court....” T.C.R.C.P. 62(d).
“A court should not grant a stay of judgment pending appeal automatically or casually .... The court’s discretion to grant a stay should therefore be exercised only ‘for cause shown.’” Asifoa v. Lualemana, 17 A.S.R. 2d 10, 12 (App. Div. 1990) (citing A.S.C.A. § 43.0803). The question before us is what constitutes sufficient cause. “Such cause must presumably amount to more than just that the appellants, should they eventually prevail in their appeal, will have been inconvenienced by having had to comply in the meantime with the trial court’s judgment.” Id. TCW has argued effectively that funds disbursed *174to the Crew will be extremely difficult to recover if TCW prevails upon appeal. It has thus demonstrated cause for staying enforcement of the judgment, but offers no justification for waiving the bond requirement.
“When a judgment is for money alone, the costs imposed on the prevailing party by a delay in execution can be minimized by requiring a supersedeas bond and by awarding post-judgment interest in an amount equivalent to the value of the use of the money.” Id. The Court declines to grant a stay in absence of the required bond because to do so would unduly injure the Crew by further delaying its recovery. Only by posting a supersedeas bond can TCW minimize this injury, and thus succeed in its request for a stay of execution. In the absence of the required supersedeas bond, the motion is denied.
VI. TCW’s Motion for Clarification
See the discussion of auction fees, supra.
VII. TCW’s Motion for Order Approving Disbursement of Funds and for Determination of Attorney Fees and Costs
The disbursement of funds in the amount of $457,657.60, agreed to by both parties, is approved.
TCW’s request for the Court to inquire into the Crew’s economic relationship with its counsel is denied. TCW has asserted no change in circumstances that would cause the Court to disagree with its prior ruling on this issue. See TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 149, 154 (Trial Div. 1999).
VID. Crew’s Request for Sanctions against TCW
The Crew’s request for Sanctions against TCW, in response to its Motion for Determination of Attorney Fees and Costs, is also denied. Although TCW does appear to be merely rehashing its prior request, the Crew has been guilty of the same in its Motion for Reconsideration or New Trial with respect to the Court’s determination of comparable seamen. In sum, both sides have needlessly protracted certain aspects of this litigation by contesting and recontesting issues already determined. The Court will accordingly deny sanctions.
Order
For the foregoing reasons, the Clerk of Courts shall enter judgment in favor of the Crew in the sum of $1,396,155.55 damages, to be distributed to individual crewmembers as above set out, plus $28,343.74 in costs. The sum of $90,015.00 is to be paid to the American Samoa Government *175as H.C.R. 31(d) auction fees.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486656/ | ORDER GRANTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
*176At the outset, we note that this matter was filed as a civil action for hearing before the Trial Division, whereas the issues are properly matters before the Land and Titles Division. See A.S.C.A. § 3.0208(b). The matter shall be redocketed accordingly.1
Plaintiff seeks a preliminary injunction against the defendants and each of them to enjoin their interference with her quiet enjoyment of certain land located roadside of the main east-west highway in the village of Nu'uuli. Plaintiff claims entitlement through her deceased parents Sidney and Annie Glenister (the “Glenisters”), who had built a family residence (the “Glenister home”) on the location. The Glenister home is the subject of the dispute before the Court.
Defendants Johnny Fia and Fa'afetai Fia (the “Fias”) are brother and sister and they claim adverse entitlement through their father the late Leaoa Fagafiia aka Fagafua Fia (“Leaoa”), who managed to procure registration in individual ownership to a part of land on which the Glenister home is located. The Fias have given plaintiff notice to quit the premises, which they have in mind to lease out to the defendants Dorothy and Kim Morris.
Discussion
This interlocutory matter took up two days of evidentiary hearing. Our assessment of the evidence received favors the conclusion that plaintiffs rights to the disputed property, premised on a leasehold grant of communal land and a third party license given by competing claimants to land adjacent to the lease, are superior to the defendants’ claim to individual ownership, which is premised on a faulty registration process.
A preliminary injunction may only issue upon applicant’s showing of “sufficient grounds” after a hearing inter partes duly noticed. A.S.C.A. § 43.1301(g). Also, A.S.C.A. § 43.14010) provides that sufficient grounds for the issuance of a preliminary injunction means:
(1) there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and
(2) great or irreparable injury will result to the applicant *177before a full and final trial can be fairly held on whether a permanent injunction should issue.
1. Likelihood of Prevailing on the Merits
Mr. Lawrence French, a locally registered surveyor who has testified as an expert witness on numerous occasions before the Land and Titles Division of the High Court, placed the site of the Glenister home partially on land claimed by the Fias ánd partially óñ land claimed by the heirs of Solaita Leupeni. The part claimed by the Fias is claimed also by Maefau Taufete'e, a lesser matai of the Maluia family of Nu'uuli, as communal land of the Maefau family. The Fias are also members of the Maefau family.
Plaintiffs parents originally came upon the site after securing a lease agreement from Maefau Tauta as well as permission to build from the Solaita Laupeni family. The lease with Maefau Tauta, dated July 13, 1966, recites the leased premises as the communal property of the Maefau family. The lease, while stipulating a term of 30 years, also provided for a month-to-month holdover tenancy upon the expiration of the 30-year term. The incumbent titleholder, Maefau Taufete'e, has not terminated the resulting month-to-month tenancy provided by the lease agreement. Additionally, the evidence further reveals that the matai title Maefau was left vacant for many years between Maefau Tauta’s administration and the relatively recent succession of Maefau Taufete'e. During this interim period, the Fias’ side of the family received the rent from the Glenisters.
As to that portion of the Glenister hdme very evidently located outside the leased plot, as testified to by Mr. Lawrence French, the same is claimed by the descendants of Solaita Laupeni who have numerous buildings, both business and residential, located immediately adjacent. Mrs. Charmaine Solaita-Sili, a great-granddaughter of Solaita Leupeni, testified that it was her grandmother who had given the Glenisters oral permission to build. Mrs. Solaita-Sili furtliter explained on the stand that the Glenisters are related to her grandmother and they do not dispute plaintiffs right to remain in the Glenister home. The Solaita Laupeni Claim, however, is not at issue before us at this time.
The Fias’ claim of superior entitlement to the leasehold plot is based upon the Territorial Registrar’s records. From our review of the Territorial Registrar’s records as well as pertinent court cases on the site, we find that Leaoa’s registration of title to the leasehold piot, as his individually owned land, is quite clearly a niillity.
Firstly, a certificate of registration of title issued from the Territorial Registrar’s office is made out to “Leaoa Fagafua aka Fagafua Fia.” Yet *178the Territorial Registrar’s records fail to bear out that the statutory requirements of notice, under A.S.C.A. § 37.0102-03, was ever attempted. Rather Leaoa’s offer to register was made on behalf of “Maefau Fia and heirs,” and was never held out as the individual claim of Leaoa Fagafua aka Fagafua Fia.2 The Land and Titles Division has held that the registration of title to land not in accordance with statutory procedure, A.S.C.A. §§ 37.0102, 37.0201 et seq., is “null and void.” Faleafine v. Suapilimai, 7 A.S.R.2d 108, 113 (Land & Titles Div. 1988). Irrefutably, the registration of title in the leasehold plot as the individually owned land of “Leaoa Fagafua aka Fagafua Fia” is hopelessly invalid.
Secondly, the history of the leasehold plot shows that the land is the communal land of the Maefau/Maluia family. The evidence before us, together with court cases on file dealing with the site, show that Maefau Tauta, a member of the Maefau family through marriage, first attempted to register the leasehold plot as his individually owned land on March 28, 1966. His claim was duly noticed to the world and attracted objection of Misi Taufete'e, a blood heir to the Maefau title and the grandfather of the incumbent titleholder, Maefau Taufete'e. Misi Taufete'e’s grounds for objection were that the land was “communal land of the Maefau Family.” While the dispute between Maefau Tauta and Misi Taufete'e was pending, Maefau Tauta dealt with the Glenisters on the premise that the leasehold plot was the communal land of the Maefau family, as evidenced not only by the lease instrument itself, but by a Separation Agreement executed by Maefau Tauta in favor of Sidney Glenister.3
Subsequently, on February 11, 1970, Leaoa offered Maefau Tauta’s same survey for registration together with the same 1966 Pulenu'u’s certification, for registration of the leasehold plot in individual ownership not in his own name but in the “heirs of Maefau Fia.” This registration attempt attracted the objection of strangers to the Maefau family, the Soliai family of Nu'uuli. In due course the matter was referred to the Court for resolution.4 Of interest in this file is a document *179styled “Detailed Application,” which was filed by Leaoa with the Court on October 30, 1970. In response to Sdliai’s claim, Leaoa alleged that the leasehold plot:
is part of the same property called “Alanoa” and is owned by the MALUIA family.
THAT some time back, MAEFAU’s father (Maluia Vaeaitu) granted (sie) portion of land ... from the same property called “Alanoa” to Maefau and his sons Misi, Fia and Akeimo. (Akeimo is now known ás TAUFETE'E of (sic) Nu'uli).
It seems, therefore, that while acknowledging the communal nature of the leasehold plot, as land belonging to “the Maluia family,” Leaoa’s purpose with registering the site in individual ownership, was to effect an alienation of communal property assigned for his father’s use.5 In Faleafine v. Suapilimai, 1 A.S.R.2d at 113, the Land and Titles Division cancelled such a registration of communal land to an individual family member, holding that it contravened the requirements of A.S.C.A. § 37.0102 et seq., which sets out an alienation procedure that requires Land Commission hearings and then gubernatorial approval.
Finally, with regard to the oft seen practice of offering land for registration as individually owned land in a previous generation’s “heirs,” and not in an individual applicant’s own name, as contemplated by the registration statute A.S.C.A. § 37.0101(a), the Appellate Division has recently spoken disparagingly on the validity of such a practice. In Tulifua v. Tuitele, 3 A.S.R.3d 54, 63-65 (App. Div. 1999), the Court noted that such a practice was not only at odds with the registration statute, but violative of the descent and distribution statute, A.S.C.A. § 40.0202, as well as being a convenient, but repugnant, vehicle to get around the Samoan blood restrictions on native land ownership in the Territory. Tulifua, 3 A.S.R.3d at 63-65.
On the foregoing, we conclude that plaintiffs derivative entitlement to the leasehold plot is superior to the defendants’ derivative claim through their father Leaoa.
2. Irreparable Harm
As to the issue of irreparable harm, we are satisfied on the evidence that the equities weigh in favor of plaintiff.
*180Order
Accordingly the following order will enter:
1. The clerk shall redocket this matter with the Land and Titles Division;
2. The defendants and each of them, their agents and assigns and all those in active concert with them are hereby enjoined, pending final disposition hereof, from any interference with plaintiffs use and enjoyment of the Glenister home under the Maefau lease;
3. The rents due under the Maefau lease shall henceforth be deposited with the registry of the Court pending final disposition hereof.
It is so ordered.
Although it is common knowledge that the justices and judges of the High Court sit interchangeably on the various divisions of High Court, the parties should note that the vote of the associate judges at the appellate level carries considerably different weight depending on whether the appeal lies from the Trial Division or from Land and Titles Division. See A.S.C.A. § 3.0221.
Leaoa’s offer to register became the subject matter of Leaoa v. Soliai, LT No. 1103.
The ensuing land title dispute was duly referred to the court for resolution; however, matter was eventually dismissed without prejudice owing to Maefau Tauta’s failure to prosecute and to comply with the court’s instructions. Taufete'e v. Maefau, CA No. 63-66 (Order of Dismissal, entered Oct. 30, 1969).
As with Maefau Tauta’s registration exercise, the court similarly dismissed Leaoa’s claim for lack of prosecution and failure to comply with the court’s instructions. See Leaoa v. Soliai, LT No. 1103 (Order of Dismissal, entered Oct. 8, 1971).
Leaoa’s other apparent purpose procuring registration in his name only was to exclude the entitlement of his siblings Misi and Akeimo. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486657/ | ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT, DENYING MOTION TO AMEND COMPLAINT, AND DENYING MOTION TO RECONSIDER DISMISSING CHIEF FALEMALAMA L. VAESAU
I. Defendants SSI & Youngs’ Motions for Leave to Amend and for Partial Summary Judgment
On May 2, 2000, defendants Southern Star International, Inc. dba Hong Kong Restaurant (“SSI”) and Kenny and Helen Young (the “Youngs”) requested leave to amend its counter-complaint against Progressive Insurance Company (Pago Pago) Ltd. (“Progressive”) under T.C.R.C.P. 15. The following day, SSI and the Youngs filed a motion for partial summary judgment under T.C.R.C.P. 56. Progressive replied to these motions on May 17, and a hearing was held on May 18, with counsel present.
A. Motion for Leave To Amend
In requesting leave to amend under T.C.R.C.P. 15, SSI and the Youngs hope to, inter alia, add cross-claims against Julian Ashby (“Ashby”), chief executive officer of Progressive, and all of Progressive’s stockholders.
A party cannot assert cross-claims against non-parties by amendment *182under T.C.R.C.P. 15. To file a claim against an additional party, a third-party plaintiff must serve a summons and complaint on the new parties. T.C.R.C.P. 14(a) (also requiring leave of court to file a third-party action later than ten days after the third-party plaintiff served the original answer); see also T.C.R.C.P. 13(g) (allowing cross-claims only against co-parties). Ashby and Progressive’s stockholders are not parties to this action. It is therefore inappropriate to add them as parties by Rule 15 amendment. SSI and the Young’s motions for leave to amend and for partial summary judgment are denied.
B. Motion for Partial Summary Judgment
SSI and the Youngs have also moved for partial summary judgment on die ground that there is no issue of fact as to whether there was a total loss on the insured building that was damaged in a fire on August 11, 1999.
Summary judgment is appropriate when there is “no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” T.C.R.C.P. 56(c). The court must view the pleadings and supporting papers in the light most favorable to the non-moving party. Amerika Samoa Bank v. United Parcel Serv., 25 A.S.R.2d 159, 161 (Trial Div. 1994); Ah Mai v. Am. Samoa Gov’t (Mem.), 11 A.S.R.2d 133, 136 (Trial Div. 1989).
SSI and the Youngs argue that because the matai who controls the land, Chief Falemalama L. Vaesau (“Vaesau”), has refused permission to rebuild, the building has sustained a total loss. They concede that Vaesau’s refusal to permit reconstruction is a peril not within the coverage of the policy, but argue that A.S.C.A. § 29.1570 operates to make Progressive liable. A.S.C.A. § 29.1570 reads:
An insurer is liable:
(1) when the thing insured is rescued from a peril insured against and which would otherwise have caused a loss if in the course of the rescue, the thing is exposed to a peril not insured against, and which permanently deprives the insured of its possession, in whole or in part;
(2) if a loss is caused by efforts to rescue the thing insured from a peril insured against.
This provision is entitled “Perils not insured against-Rescue efforts.” A.S.C.A. § 29.1570. Its purpose is to do exactly what the title states: protect an insured against the loss of an uninsured item when the peril occurs as a result of trying to rescue the insured item. It does not serve to make an insurer liable for unrelated decisions regarding the insured property that occur subsequent to the loss. Defendants’ argument is *183unsupported by any case law, and is absurd.
Whether a total loss has occurred is an issue of fact that has yet to be decided. SSI and the Youngs’ motion is denied.
C. Sanctions
Whenever counsel signs a motion, counsel has certified that, to the best of his or her knowledge, the motion:
(1) is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.. ..
T.C.R.C.P. 11(b). The Court is empowered to enter an order describing the specific conduct that appears to violate this rule, and direct an attorney to show cause why it has not violated the míe. T.C.R.C.P, 11(c)(1)(B). By filing the two motions discussed above, both of which are frivolous, counsel has come very close to receiving an order to show cause why Rule 11 sanctions should not be issued. Counsel is hereby warned to refrain from any further vexatious conduct.
II. Defendant Fata’s Motion for Reconsideration
Defendant Ainoama Fata dba Nofo’s Store (“Fata”) has requested that the Court reconsider its decision to dismiss Vaesau. The Court dismissed Vaesau because he was named as a potential claimant in interpleader, but disclaimed any interest in the money at issue. Fata argues that her cross-claim should be allowed because it is independent of and unrelated to the insurance proceeds. The trial court rules permit cross-claims against a co-party when they arise out of the same transaction or occurrence that is the subject matter of a claim or relate to property that is the subject matter of the original action. T.C.R.C.P. 13(g). Rather than supporting Fata’s position, her argument of independence from the original claim precludes the cross-claim. Fata’s motion for reconsideration is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486658/ | OPINION AND ORDER
Plaintiffs in this case,.Muavaefa'atasi Ae Ae Jr. (“Muavaefa'atasi”) and Eugene Paul Bailey (“Bailey”), originally sued numerous owners and operators of poker machines in addition to the governmental defendants still involved. However, subsequent to our denial of plaintiffs’ Motion for Summary Judgment, plaintiffs dismissed the suit against all private defendants, leaving only a suit for declaratory relief against the two governmental defendants American Samoa Government and Governor Tauese P.F. Sunia (collectively “ASG”). This raised concerns of whether a justiciable cáse or controversy remained before the Court, concerns that we requested counsel for the remaining parties to address at a hearing held May 11, 2000.
Also prior to the hearing, we discovered federal law that appeared to forbid any activity relating to poker machines in the territory. Accordingly, we also requested counsel, at the aforementioned hearing, to address this federal preemption question, Counsel have submitted timely briefings on both subjects, which we have considered in rendering the following decision.
*186Discussion
A. Standing
Having dismissed the poker machine owners and operators from the action, plaintiffs effectively dismissed any pecuniary claims against these private parties and instead concentrated on seeking a declaratory judgment against the government. This raised for us the question of whether the plaintiffs, no longer seeking redress for economic losses, still possessed a justiciable case or controversy capable of resolution in this Court.
Justiciability comprises a collection of doctrines arising from the “case or controversy” limitation on federal jurisdiction found in Article III, section 2 of the U.S. Constitution, language that is replicated in the statute conferring jurisdiction on the High Court. A.S.C.A. § 3.0208(a). In short, this requirement prevents the court from issuing advisory opinions. Muskrat v. United States, 219 U.S. 346, 362 (19)1).
Ripeness, or bringing the case too early, is not a bar tq.the present suit. Poker machines, and the statutes purportedly legalizing them, are presently at work in the territory, and the plaintiffs allege specific injuries as a result. Thus, we are not faced with a case of prospective statutory application and injury. Cf. Poe v. Uliman, 367 U.S. 497, 503-04 (1961). Furthermore, the legality of poker machines in the territory is a purely legal issue that would not be further clarified by factual development. See Thomas v. Union Carbide Agric. Prod. Co., 473 U.S. 568, 581 (1985).
Standing, on the other hand, presents difficulties for Muavaefa'atasi. While both parties agree on the existence of a justiciable controversy, we have an obligation to ensure that the parties have standing, even if the parties are willing to concede the issue. Bender v. Williamsport Area Sch. Dist, 475 U.S. 534, 541 (1986).
Plaintiffs are correct in stating that violation of a statute can constitute a public nuisance per se. Standing, however, must still be addressed. The three requirements that plaintiff must demonstrate are: (1) an injury in fact (2) caused by the subject of the suit (3) that can be redressed by the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Muavaefa'atasi cannot meet the first requirement. In order to civilly prosecute an action for public nuisance, a plaintiff typically must allege and prove a specific injury beyond that suffered by the general public. See, e.g., Oppen v. Aetna Ins. Co., 485 F.2d 252, 259 (9th Cir. 1973). Muavaefa'atasi has alleged no special injury to himself as a *187result of ASG’s licensing of poker machines. Nor can Muavaefa'atasi sue in his official capacity for alleged violations of the anti-gambling statute A.S.C.A. § 46.4301. Courts have held that while legislators possess standing to challenge an executive action that nullifies an opportunity to vote, they do not possess standing to challenge the executive’s failure to obey a statute. Goldwater v. Carter, 617 F.2d 697, 702 (D.C. Cir. 1979) (en banc), vacated on other grounds, 444 U.S. 996 (1979).
Bailey, on the other hand, has alleged sufficient special injury to maintain the current public nuisance action. The pecuniary harm suffered by Bailey as a result of poker machines differs from that suffered by the general public, satisfying the injury requirement for his suit. See, e.g., Phila. Elec. Co. v. Hercules, Inc., 762 F.2d 303, 316 (3d Cir. 1985). Although Bailey is undoubtedly not the only person who has lost significant sums to poker machines, an action may be maintained by one who possesses a grievance shared by many persons so long as it is not common to the public as a whole. Ariz. Copper Co. v. Gillespie, 230 U.S. 46, 57 (1913).
Bailey similarly meets the other standing requirements. Poker machines would not be in operation in the territory but for ASG’s licensing scheme, thus establishing a causal link between Bailey’s injury and ASG’s actions. Similarly, a, decision by this Court rendering the machines illegal in the territory would likely cause ASG to take actions to prevent any continuiiig harm.
Accordingly, we dismiss Muavaefa'atasi’s cause of action for public nuisance for lack of standing, but continue with Bailey as the sole remaining plaintiff.
B. Legality of Poker Machines in the Territory
The Territory’s laws regarding poker machine are a muddle. The general anti-gambling statute, A.S.C.A. § 46.4301, appears to make their presence and use illegal. On the other hand, the Fono has enacted a statutory scheme the purpose of which is to derive revenue from these very same machines. A.S.C.A. § 11.0601 et. seq. ASG maintains that the licensing scheme implicitly legalized the machines, whereas Bailey argues that the licensing scheme was merely a device by which the government taxed an illegal activity. These seemingly contradictory provisions thus present a conundrum, the resolution of which would require nuanced interpretations of statutory construction and legislative intent.
Fortunately, we need not consider the effects of these statutes *188whatsoever. Rather, we begin with Article IV, Section 3 of the United States Constitution which reads in relevant part, “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . .” This statement, referred to as the territorial clause, provides Congress with plenary powers to legislate for the territories. See Nat’l Bank v. County of Yankton, 101 U.S. 129, 132(1880). Congress’s power to legislate for the territories being derived from the United States Constitution is limited only by that same document, and not by any laws of the territories themselves. Id. This legal reality is expressly acknowledged in Art. II, § 1(a) of the Revised Constitution of American Samoa which states, “The Legislature shall have authority to pass legislation with respect to subjects of local application, except that . . . [n]o such legislation may be inconsistent with the laws of the United States applicable in American Samoa.” Thus territorial laws which are inconsistent with applicable United States laws violate the Territory’s Constitution. Alamoana Recipe, Inc. v. Am. Samoa Gov’t, 24 A.S.R.2d 156, 157 (Trial Div. 1993); see also A.S.C.A. § 1.0201 (“the laws of the United States of America as, by their own force, are in effect in American Samoa . . . [are] in full force and .. . have the effect of law in American Samoa”). Federal preemption is thus established in the territory. Under standard preemption doctrine, federal law may be so pervasive and encompassing with respect to a subject as to occupy the field, leaving no room for state regulation of the same. On the other hand, in many areas federal law provides a groundwork and state (and by analogy, territorial) statutes are given effect if, but only if, they do not conflict with federal statutes. See, e.g., Wise. Pub. Intervenor v. Mortier, 501 U.S. 597, 603-607 (1991).
The United States Congress has legislated with respect to the machines at issue in the case. 15 U.S.C.A. § 1171(a)(2). The Johnson Act, 15 U.S.C.A. § 1171 et seq., explicitly makes it unlawful to “manufacture, recondition, repair, sell, transport, possess, or use any gambling device ... in any Possession of the United States . . . .” 15 U.S.C.A. § 1175(a). The Territory of American Samoa constitutes a possession for purposes of the Johnson Act, 15 U.S.C.A, §§ 1171(a) and (b). It thus appears abundantly clear that these machines are illegal in the territory under federal law.
Defendants’ arguments do not convince us otherwise. First, whereas states and some possessions can enact laws to exempt themselves from the general rule prohibiting gambling devices, American Samoa cannot. United States Code makes it “unlawful to knowingly transport any gambling device to any place in a State or a possession of the United States from any place outside of such State or possession . . . .” 15 U.S.C.A, § 1172(a). The subsection goes on to specifically exempt only “States” that have legalized gambling from this *189prohibition. Id. “States,” for purposes of the Johnson Act, includes the District of Columbia, Puerto Rico, the Virgin Islands, and Guam. U.S.C.A. § 1171(b). “The term ‘possession of the United States’ means any possession of the United States which is not named in subsection (b) of this section.” U.S.C.A. § 1171(c).. The plain language of the statutory scheme thus explicitly demonstrates that it is not the intent of Congress to allow certain possessions, including American Samoa, to enact laws legalizing gambling devices.
Second, the machines at issue are obviously “gambling devices” as defined by section § 1171. No attempt to mischaracterize their operation-as one solely dependent on skill can change this fact. See, e.g., United States v. Digger Merch. Mach., 202 F.2d 647, 651 (8th Cir. 1953) (where a substantial element of chance is involved, fact that skill is needed - in operating machine will not suffice to take machine out of purview of § 1171); United States v. 294 Various Gambling Devices, 718 F. Supp. 1236, 1248 (W.D. Pa. 1989) (video poker machines constitute gambling devices for purposes of § 1171); United States v. Sixteen Elec. Gambling Devices, 603 F. Supp. 32, 34 (D. Haw. 1984) (same result). Furthermore, ASG admits that “the operation of poker machines is a form of gambling,” belying its argument that one’s success in their operation depends wholly upon skill. See Stipulation of Facts.
Third, cases cited by ASG are inapplicable to poker machines in the territory. Iowa Tribe of Indians of Kan. and Neb. v. State of Kansas, 787 F.2d 1434 (10th Cir. 1986), concerned state prosecution of “pull-tab cards” sold by the Iowa Tribes. The court concluded that these were not gambling devices as defined by § 1171, and that users were thus amenable to prosecution because § 1175 could not apply to preempt state regulation. Id. at 1440.
In contrast, the poker machines at issue in this case are gambling devices under § 1171. The Johnson Act thus applies and preempts territorial regulation.
ASG similarly misreads Citizen Band of Potawatomi Indian Tribe of Oklahoma v. Green, 995 F.2d 179 (10th Cir. 1993). The court did not defer to state law in prohibiting the importation of gambling devices into an Indian Reservation located in Oklahoma. Rather, it considered the status of gambling devices under state law in concluding that federal law, namely the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721, in conjunction with the Johnson Act, operated to forbid the tribe an exception for the machines. Id. at 181.
In the present action, we have a clearly defined case of federal preemption that parallels the case of United States v. Blackfeet Tribe of Blackfeet Indian Reservation, 364 F. Supp. 192 (D.C. Mont. 1973). In *190that case, the court held that ordinances authorizing gambling and licensing gambling devices, passed by the Blackfeet Tribe on their reservation, were in conflict with § 1175, and were therefore null and void. Id. at 194-95. That is precisely the situation we have here in this Court. ASG has licensed poker machines, an action directly in conflict with federal law on the subject. Accordingly, ASG’s licensing statute, A.S.C.A. § 11.0601 et. seq., is preempted by the Johnson Act, and declared null and void to the extent of its repugnancy to the latter. In sum, poker machines are illegal in the territory of American Samoa by virtue of federal law, which trumps the Territory’s poker machine licensing law, and by virtue of the territory’s general anti-gambling statute, A.S.C.A. § 46.4301.
Judgment will enter accordingly.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486660/ | ORDER DENYING MOTION TO DISMISS
Defendant Pita Faumuina (“Faumuina”) is charged with three offenses: first degree sexual abuse for actions committed during the month of February 2000, second degree assault for actions committed during that *197same time period, and third degree assault committed March 20, 2000. The dates are the only facts mentioned in the information; the remainder of the counts repeat verbatim the statutory language describing the respective offenses. Faumuina seeks dismissal of this charge on the basis that the information is insufficient.
Analysis
Plaintiff American Samoa Government (“ASG”) contends that the information provides a “plain, concise and definite written statement of the essential facts constituting the offense charged” as required by T.C.R.Cr.P. 7(c)(1). ASG cites American Samoa Gov’t v. Atamasaga, 17 A.S.R.2d 145, 150 (1990), in support of its argument that the information need only recite the statutory language of the offense. While the language it quotes from the decision seems to lend authority to this assertion, the facts of the case do not. The information in that case named the victim, whereas no victim is named in any of the three counts in the current case. Sexual abuse and assault being offenses committed against the person, it seems rather obvious that the persons, i.e. the victims, be identified in the charges. Second, the defendant in Afamasaga was granted a request for a bill of particulars prior to trial in which ASG was ordered to both identify the victim and the means by which defendant was alleged to have assaulted her.
Furthermore, the persuasive authority cited in Afamasaga involved indictments that alleged' specific facts. For example, the extortion counts in U.S. v. Williams, 679 F.2d 504, 508 n.5 (9th Cir. 1982), alleged specific sums and the victims from whom they were extorted. Similarly, the indictment in Hamling v. U.S., 418 U.S. 87, 91 (1974), identified the obscene materials on which the charges were based. Hamling held only that each element of an offense need not be supported by specific facts in the indictment, not that the indictment need contain no facts whatsoever. Id. at 119.
We consider the present information to be insufficient because to hold otherwise would expose Faumuina to multiple prosecutions. ASG must specify the victims of the sexual abuse and assaults in the information. While plaintiffs witness list indicates the identity of the victims of the offenses charged, ASG could conceivably prosecute defendant for assaults against either person under the present information. Thus, failure to specify the victims in the information leaves ASG the freedom to substitute one for another if that would better suit its purposes. We think this highly unlikely, and certainly do not intend to call into question ASG’s counsel’s integrity. However, we must insist that ASG include these facts in the information so as to afford Faumuina protection against double jeopardy.
*198Furthermore, while ASG frames the charges in the language of specific statutory provisions, this likewise appears insufficient. ASG’s decision to charge under a single subsection of the statute describing each offense has, contrary to Faumuina’s position, “informed] the accused of the specific offense, coming under the general description, with which he is charged.” United States v. Hess, 124 U.S. 483, 487 (1962). However, where the statutory definition of an offense makes use of generic terms, the information must “descend to particulars.” Russell v. United States, 369 U.S. 749, 765 (1962). For example, while the sexual assault charges in Holdren v. Legursky, 16 F.3d 57, 62 (4th Cir. 1994), tracked the applicable statutory language verbatim, they also noted the specific sex acts charged in each count. The crux of the matter is that the defendant must not be in danger of being retried for the same crime on a different theory. Williams, 619 F.2d at 509. Defendant Holdren was charged with 6 separate counts of sexual assault, each based on a separate occurrence of contact between his genitalia and various body parts of the victim, as permitted under West Virginia law. Holdren, 16 F.3d at 62. In contrast, by not specifying Faumuina’s actions that led to the present charges, especially in the counts alleging conduct sometime within the span of a month, the information in this case subjects Faumuina to the possibility of being retried for the same crime under a different theory.
We thus agree that the information is presently insufficient, but deny dismissal. Russell, 369 U.S. at 770 (1962), stated that “it is a settled mle that a bill of particulars cannot save an invalid indictment.” However, the Court so held because the indictment had been effectively rewritten by the prosecutor during the course of the case. Id. In contrast, this is not a case where “at every stage in the ensuing criminal proceeding [defendant is at risk of being] met with a different theory, or no theory at all, as to [the specifics of the offense].” Id at 768. Rather, we take the opportunity here, before trial, to cure the defective information. Faumuina is accordingly urged to move for a bill of particulars to better define the charges. Specifically, Faumuina is free to ask for specifics with regards to the victims of and actions constituting the offenses.
Provided that Faumuina moves for a bill of particulars, ASG will have 10 days to respond, or we will dismiss the charges. We intend this decision to give notice to ASG that it must include essential facts sufficient to notify defendants of the charges filed against them, as required by T.C.R.Cr.P. 7, or face the possibility of dismissal in the future. In short, prosecutors are advised to use facts underlying the charges when preparing future informations. In turn, we remind Faumuina not to overstep the requirements of T.C.R.Cr.P. 7 and turn his bill of particulars into a discovery device. See Afamasaga, 17 A.S.R.2d at 150.
*199Order
For the above reasons, Faumuina’s motion for dismissal is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486662/ | Procedural History
Plaintiffs Ama Saoluaga T. Nua, Tuilefano M. Vaela'a, and Otomalesau John Ah Sue (collectively “the Legislators”) filed a complaint on December 7, 1999 alleging that defendants (collectively “the Executives”) violated sundry constitutional, statutory, and common law provisions as a consequence of their purchase of the business property in Ili'ili known as the Country Club (“CC”), comprising a restaurant and nightclub. The CC operates in a building located on land currently leased by the American Samoa Government (“ASG”) for the purpose of operating a public golf course.
The Legislators filed an amended complaint two days later, on December 9, 1999, that corrected grammatical and other minor errors in the original complaint but that did not affect its substance. The Executives answered on December 29, 1999. The Legislators moved for partial summary judgment on January 25, 2000, and the Executives responded, after a continuance, on March 31, 2000 with a document that both opposed the Legislator’s bid for summary judgment and moved for partial summary judgment. The Legislators responded to the Executives’ cross-motion for summary judgment on April 7, 2000, and counsel for all parties attended a hearing on the cross-motions on April 10, 2000.
Facts
The crux of the matter is that the Executives arranged ASG’s pinchase of the CC from Bill and Apoua Tedreck (“Tedrecks”) without the approval or involvement of the Legislature of American Samoa (“the Legislature”). The details of this transaction follow.
Defendant Lieutenant Governor Togiola T.A. Tulafono (“the Lieutenant Governor”) and two members of the Governor’s Office staff, defendants Douglas Juergens (“Juergens”) and Pati Faiai (“Faiai”) incorporated the Special Services Corporation (“SSC”) on May 28, 1999 for the purpose of operating the CC restaurant and nightclub. That same day,' the Tedrecks sold the CC to ASG, represented by defendant Governor Tauese Sunia (“the Governor”) for a sum of $253,750.00.
ASG agreed to pay the Tedrecks this sum through offsets of rent owed *211by them to ASG on their lease of property known as Fagatogo Square, in exchange for the CC, ASG forgave the Tedrecks’ lease payments on the Fagatogo property in the amount of $3,891.36 per month, for 105 months, beginning July 1, 1999 and ending April 1, 2008. ASG also terminated the Tedrecks’ sublease for the CC, effective June 1, 1999. Under this sublease, the Tedrecks were obligated to pay ASG $12,000 per year for 30 years for use of the land on which the CC was located.
ASG and the Tedrecks amended the CC purchase agreement on June 6, 1999, to increase the price paid by ASG to $272,722.00 in exchange for additional CC assets. ASG accordingly extended the offset period for the Tedrecks’ Fagatogo Square lease from April 1,2008 to May 3, 2009.
The SSC took over CC operations following the purchase transaction and has been running it to the date of the summary judgment hearing. The Executives do not dispute the following facts: (1) the Legislature has not approved the purchase of the CC; (2) the Legislature has not appropriated funds for the purchase or operation of the CC; (3) ASG has not received any funds from either the Fagatogo or CC leases with the Tedrecks subsequent to the effective dates of ASG’s agreement with the Tedrecks to purchase the CC and termination of the CC lease; (4) ASG has not received any revenues generated by the CC under the SSC’s management.
Analysis
A. Summary Judgment
Both parties move for partial summary judgment pursuant to T.C.R.C.P. 56. Summary judgment is appropriate only when the pleadings and supporting papers show “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” T.C.R.C.P. 56; Etimani v. Samoa Packing Co., 19 A.S.R.2d 1, 4 (Trial Div. 1991). In ruling on a summary judgment motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party’s evidence as true, and draw from such evidence the inferences most favorable to the opposing party. Id. We apply this standard to the Legislators’ motion for partial summary judgment on their 10 causes of action in the first amended complaint and the Executives’ cross-motion.
B. Executive Expenditure of Funds
As a preliminary matter, we must determine whether there was in fact an expenditure of funds by the Executives. The Executives attempt to portray this transaction as a mere substitution of revenue streams, rather than an expenditure. They assert that “[t]here was no actual spending of *212any funds. The financing of the transaction was essentially a trade of a debt obligation — at the time and in the future — for an asset of equal value to the debt.” (Defs:’ Resp. to Pis.’ Mot. for Summ. J. 2.)
No amount of obfuscation, however, can mask the fact that prior to the CC purchase transaction, AS.G received funds from the Tedrecks in the form of rent payments for both the-Fagatogo and CC leases. After.the purchase transaction, ASG has not received any funds to replace this lost revenue. The Executives concede that ASG purchased the CC. (Id.) There is thus a net loss, not a substitution, of revenue from the general fund for which the Executives are responsible.
Only if the Executives were to begin forwarding sums from the operations of the CC to ASG in the exact amounts formerly received from the Tedrecks would there be a substitution of revenue streams. Such a substitution would not, however, defeat the present case because revenue from CC operations and revenue from lease payments are two different things entirely, even if equal in amounts. The latter are guaranteed by a contract and security. The former are subject to the innumerable variables controlling the success or failure of nightclubs.and restaurants. The difference is obvious. In sum, we hold that the Executives have caused expenditure of ASG monies without the Legislature’s appropriation of those funds.
C. Violation of Separation of Powers: Counts 1. 2. and First 3
The violation of the constitutional principle of separation of powers is alleged in the Legislators’ causes of action 1, 2, and first 3.
Every student of American government knows, or should know, that the spending authorization power resides with the legislative branch. This principle is embodied in the Appropriations Clause, found at Article I, Section 9, Clause 7 of the United States Constitution, stating that “[n]o money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” This means that any funds spent by the U.S. Government, by whatever agency or branch, must be authorized by statute. See, e.g., Reeside v. Walker, 52 U.S. 272, 290 (1850). The Supreme Court has also stated that the Appropriations Clause “was intended as a restriction on the disbursing authority of the Executive department.” Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937). Applying this general prohibition to the present case, there having been no appropriation by the Legislature, the Executives’ arrangements for ASG’s purchase of the CC, if examined under U.S. law, clearly infringes on the power to authorize spending reserved for the Legislature.
The Revised Constitution of American Samoa’s provision *213regarding appropriations is less explicit. Article II, Section 1 describes the procedure whereby ASG funds are to be disbursed. The Executive Branch’s role in this process is limited to preparation of the preliminary budget plans, Am. Samoa Rev. Const., art. II, § 1(c), and the preparation and administration of the final fiscal year budgets. A.S.C.A. §§ 10.0501-.0502, 10.0504-.0506, 10.0508-.0509. The Legislature is the only branch explicitly granted the power to pass laws appropriating and enabling the expenditure of public funds, Am. SAMOA REV. CONST., art. II, § 1(c), and to approve the budgets submitted by the Governor. A.S.C.A. §§ 10.0501, 10.0503, 10.0507.
Thus, while our constitution does not include the prohibitory language of the U.S. Appropriations Clause, Section 1(c) of Article II and the statutes controlling the budget process clearly reserve the spending authorization power to the Legislature. We made this explicit holding in The Senate v. Lutali, 27 A.S.R.2d 126, 134 (Trial Div. 1995), in which heading 4 reads “Executive cannot spend without appropriation.”
We based the decision in Lutali in part on A.S.C.A. § 10.0601(a), a statutory provision intended to ensure the fiscal responsibility of government officials. This provision reads as follows:
(a) No officer or employee of the government may make or authorize an expenditure from or create or authorize an obligation under ahy appropriation or fund in excess of the amount available therein; nor may officers or employees involve the government in contracts or other obligations, for the payment of money for any purpose, in advance, of appropriations made for that purpose unless the contract or obligation is authorized by law.
A.S.C.A. § 10.0601(a). The language of the statute clearly states that officers (the Governor of American Samoa being an officer) may not contractually obligate ASG to pay monies without an appropriation approving the expenditure, lending support to the constitutional principle that the Legislature controls governmental purse strings. The Executives’ arrangement for ASG’s agreement to purchase the CC created an obligation on ASG’s part to pay funds in excess of the amount available. There being zero dollars appropriated for the purchase of the CC, any expenditure for this purpose was necessarily in excess of the amount available.
Second, in forgiving the Tedrecks’ rent payments for the Fagatogo property for approximately the next decade, the Executives obligated ASG to pay money in advance of any appropriation for that purpose. It is clear that the Executives created an ASG contract with the Tedrecks to *214convey upon them thousands of dollars annually in exchange for acquiring the CC.
The Executives’ first response to the separation of powers principle, contained in the Revised Constitution, fleshed out by A.S.C.A. § 10.0601, and explicitly adopted by this Court, is an argument that the Legislature has, by enactment of A.S.C.A. § 37.2010, provided the Executives with unfettered license to spend ASG funds. This is preposterous. First, even if the Legislature had intended such a result, it could not have achieved it through legislation. A.S.C.A. § 1.0201 clearly states that the territory’s constitution takes precedence over legislative actions. That the spending authorization power is reserved to the Legislature is a constitutional principle that is merely bolstered, not established, by the statutory scheme. Therefore, any statute purporting to alter the spending authorization power in derogation of the Revised Constitution is a priori null and void.
Second, A.S.C.A. § 37.2010 simply does not provide the Executives power with unfettered discretion to spend public funds on ASG’s behalf. The Executives argue that because § 37.2010 authorizes ASG to purchase private property, this necessarily implies that the Governor is authorized to do so with absolutely no constraints. The Executives fail to support this assumption, seemingly based on a misreading of the statute. We could stop there, but proceed with the discussion in order to make this point abundantly clear.
Statutory interpretation is purely a question of law to be decided by the court. United States v. Blue Cross Blue Shield of Mich., 859 F. Supp. 283, 286 (E.D. Mich. 1994). The purpose of statutory construction is to effectuate the intention of the legislature. Id. First, we examine the plain language of the provision. “The starting point for interpretation of a statute ‘is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.’” Kaiser Aluminum v. Bonjorno, 494 U.S. 827, 835 (1990) (citing Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). The text of A.S.C.A. § 37.2010 does not confer any authority on the Executive Branch to spend unappropriated funds. Granted, the Executive Branch is charged with the duty to implement the territory’s laws and agreements, but nothing in the language of the provision indicates, either explicitly or implicitly, that the Governor can purchase property for ASG in the absence of an appropriation for that purpose. Courts may not read into a statute an implication that it does not warrant. United States v. Merriam, 263 U.S. 179, 187-88 (1923). Absolutely nothing in the text of § 37.2010 warrants the far-fetched implication advanced by the Executives.
The Executives’ second argument hinges on the last clause of A.S.C.A. § *21510.0601(a), which reads, “unless the contract or obligation is authorized by law.” It contends that this creates an exception whereby its purchase is authorized under A.S.C.A. § 37.2010. As we explained above, § 37.2010 confers no power on the Executives to purchase assets in the absence of appropriations. It does not therefore authorize the pinchase, nor does any other provision of the code. The purchase being completely unauthorized, it is not sanctioned by the language, of .§ 10.0601 (a).
Recent decisions of this Court should have laid to rest any lingering doubts about the Executive Branch’s discretion to spend ASG funds: For example, in Lntali, 27 A.S.R.2d at 137, we stated that:
The Revised Constitution and laws are clear that the Executive recommends and proposes an annual budget to the Legislature, and the Legislature in turn has the authority to appropriate public funds to implement that budget as it deems necessary.
In that case we went on to declare unlawful and unconstitutional debts incurred by the Executive Branch without specific appropriations by the Legislature, holding that they “would exceed the role and powers assigned to the Executive [Branch] and would infringe upon the role and powers of the Legislature, and would violate the constitutional and lawful constraints, requirements, and procedures applicable to the budgeting, appropriation, and expenditure of ASG’s funds.” Id. at 16. •
This precedent should have made it abundantly clear to the Executives that they were overstepping their constitutional powers when they unilaterally arranged for ASG’s purchase of the CC. Even if the present administration somehow missed that case, our decision in The Senate v. Tauese, CA No. 27-98, slip op. (Trial Div. Sept. 23, 1998), delivered from the bench under two years ago, should have put the Executives, and the Governor in particular, on notice that the Executive Branch cannot lawfully spend funds without legislative appropriation. In that case, we held that the Executive Branch could not spend funds derived from petroleum operations without an appropriation by the Legislature. Id.
The parallels between that petroleum case and the one presently before us are numerous and strikingly similar. In both cases, the Executive Branch created a body to administer the asset in question. In both cases,, the revenues derived from the assets never found their way into the general fund. With such similarities, we are completely at a loss as to how the Executives could fail to realize that ASG’s purchase of the CC. was just as illegal and unconstitutional as the Executive Branch’s diversion of petroleum revenues.
It is clear, under our Revised Constitution, its implementing *216statutes, and recent decisions of this Court that the Executives’ arrangement for ASG’s purchase of the CC violated the separation of powers mandated by the Revised Constitution of American Samoa. Let us spell it out simply so as to put the Executives on notice in hopes that this situation will not repeat itself yet again. The Revised Constitution of American Samoa mandates that the Executive Branch may not obligate public funds in any manner without an appropriation by the Legislature. Accordingly, we will grant the Legislators’ summary judgment on causes of action 1, 2, and first 3.
D. Statutory Violations: Counts Second 3. 4. and 7
The Legislators allege violations of A.S.C.A. § 10.0601 in causes of action second 3 and 4, and of A.S.C.A. § 37.2010 in cause of action 7. The Executives contend in their cross-motion for summary judgment that violations of these statutes do not provide the Legislators with a cause of action. They also defend on the grounds of qualified immunity, which appears to be principally directed at these three causes of action.
As a preliminary matter, a question exists as to whether the Legislators possess standing to assert claims of statutory violations against the Executives. According to their pleadings, Legislators are suing in their official capacities, exclusive of their status as taxpayers or citizens. (See Compl.; Am. Compl.; Pis.’ Resp. to Defs.’ Cross Mot. for Partial Summ. J. 1.) A legislator’s standing can differ dramatically from taxpayer or citizen standing.
At this time, we will deny both motions for partial summary judgment as to these causes of action. We also advise the parties to comprehensively research and brief the standing, cause of action, and qualified immunity issues, and any' other issues related to these causes of action, in preparation for trial or any further pretrial motions.
E. Misapprooriation/Conversion: Counts 5, 6. and 8
We further point out that misappropriation and/or conversion appear to be alleged as intentional torts. The Legislators must prove that they in fact possess a property or possessory interest in the funds at issue sufficient to constitute one or both of these torts. Specific wrongful intent is also an element requiring proof. Accordingly, we will also deny both motions for partial summary judgment as to these causes of action.
F. Improper Formation of Public Corporation: Count 9
In cause of action 9, the Legislators contend that SSC, as a public corporation, was improperly formed for two reasons. First, they assert that only the Legislature is empowered to create, through statutory *217provisions, public corporations. Second, they contend that the Executives did not form SSC for a public purpose, because the definition of such rests with the Legislature.
Turning to the first argument, although the Legislators cite a number of cases in which it appears that a legislature created public entities by means of statutes, these cases do not state that this is the exclusive means by which they may be constituted. The only language that supports such a reading is found in Board of Commissioners of the Port of New Orleans v. The M/V Gotama Jayanti, where the court held that “the creation of such a public body [the port authority] is a legislative function.” 274 F. Supp. 265, 266 (D. La. 1967). However, creation of the port authority is a legislative function in Louisiana by virtue of that state’s constitution and statutes. Id. at 267.
In contrast, the Revised Constitution of American Samoa contains no provisions treating the subject of public corporations. In addition, the Executives are correct in asserting that our corporation statutes, A.S.C.A. §§ 30.01-.05, do not explicitly prohibit them from creating a public corporation. Indeed, these statutes do not treat the subject of public corporations at all.
Granted, case law demonstrates that formation of a public corporation is generally a legislative function. See, e.g., Jones v. City of Portland, 245 U.S. 217, 221 (1917). However, given the silence of the territory’s constitution and statute^ on this matter, we fail to understand why the Executives could not form a public corporation to carry out public purposes for which the Legislature appropriated funds.
In examining the Legislators’ second argument that SSC was not constituted for a public purpose, we reiterate that standing issues arise when a legislator asserts a cause of action based on an alleged statutory violation by an executive branch official. See Section D, supra. The Legislators’ standing to pursue a claim based on an alleged violation of A.S.C.A. § 37.2010, which grants ASG “the power and authority to purchase property for public purposes,” thus remains in question.
The Legislators must provide much more in the way of legal and policy arguments to support the claim that the Legislature has the exclusive right to create a public corporation and to define that corporation’s purpose. We also expect the Legislators to submit evidence at trial that the SSC does not in fact serve a public purpose. We will, therefore, also decline to grant both motions for a partial summary judgment with respect to cause of action 9.
*218G. Breach of Fiduciary Duty: Count 10
The Legislators allege in cause of action 10 that the Executives have breached their fiduciary duties to the people of American Samoa.
At this juncture, the legal theory of this cause of action is unclear to us. It may, as the Executives contend, be based on negligence. It may, as the Legislators assert, be a distinct cause of action. It may be merely an element of the misappropriation and/or conversion causes of action.
Because of this uncertainty, we will deny both motions for partial summary judgment as to cause of action 10. Once more we expect the parties to thoroughly research and brief these issues for trial or any further pretrial motions.
Order
1. The Executives’ motion for partial summary judgment is denied.
2. The Legislators’ motion for summary judgment for declaratory relief is granted as follows:
a. the sales agreement for the CC between ASG and. the Tedrecks is illegal and thus null and void;
b. the leases between the Tedrecks and ASG for both the Fagatogo and CC properties remain in effect;
c. all revenues received from the Fagatogo and CC leases are public funds subject to appropriation by the Legislature; and
d. the Executives may spend public funds only for purposes for which they are appropriated by the Legislature.
3. The Legislators’ motion for summary judgment for injunctive relief is also granted as follows:
The Executives, their agents, employees, servants, and attorneys, and all persons or entities in active concert or participation with them are enjoined from:
a. disbursing, expending, or obligating ASG funds for the purchase and operation of the CC; and
b. transferring, selling, depleting, or otherwise disposing of CC and SSC assets.
*2194. The Legislators’ motion for summary judgment imposing liability on any or all of the Executives individually is denied.
5. The Executives shall prepare a detailed accounting of all CC and SSC assets and operations for trial.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486663/ | ORDER ON DEFENDANTS’ MOTION TO DISMISS
Facts and Procedural History
The present action arises out of the reassignment of plaintiff Salei'a Afele-Fa'amuli (“Fa'amuli”), by defendant Salu S. Hunldn (“Hunkin”), from the post of “dean/director of the Agriculture, Human and Natural Resources division [of] the American Samoa Community College” to that of “nutritionist specialist” at the college’s “cafeteria division.” (Am. Compl. ¶ 9.)
Fa'amuli contends that the manner in which Hunkin accomplished this reassignment violated her procedural due process rights. Fa'amuli additionally claims that Hunkin’s actions constituted defamation and caused her emotional distress.
Fa'amuli filed a complaint for damages on October 28, 1999, followed by an amended complaint on January 10, 2000. Defendants Board of Higher Education (“Board”) and Hunkin in her official capacity responded on March 1, 2000 with a Motion to Dismiss and/or for Alternative Relief. Defendant American Samoa Community College *221(“ASCC”) filed an answer on March 1, 2000, and defendant American Samoa Government (“ASG”) responded with an answer filed March 17, 2000.
Fa'amuli failed to respond to the Board’s and Hunkin’s motion to dismiss by the date of the hearing on the motion, March 30, 2000. This hearing was attended by counsel for Fa'amuli, ASG, the Board, and Hunkin in her official capacity. ASG joined the Board’s and Hunkin’s motion at this time. We continued the hearing on the merits of the motion until April 24, 2000 and provided Fa'amuli with 10 days to respond to the motion at issue, after which the Board and Hunkin were allowed 5 days to respond.
Fa'amuli failed to file her response until the date of the hearing, April 24, 2000. Present at this hearing were counsel for Fa'amuli, the Board, and Hunkin in her official capacity. At this point, we ordered counsel to submit briefs by May 5, 2000.
Hunkin subsequently filed an answer in her individual capacity on April 26, 2000, and the Board and Hunkin in her official capacity filed a reply brief on May 3, 2000.
Analysis
As a preliminary matter, we note the following difficulty with Fa'amuli’s complaint. Fa'amuli seeks damages against ASG, ASCC, and the Board for intentional or negligent infliction of emotional distress, violation of due process, defamation, and “wrongful reassignment.” While familiar with the first three causes of action, we are unclear as to whether wrongful reassignment constitutes a separate cause of action rather than conduct underlying the alleged due process violation. Fa'amuli will be well advised to clarify this matter in her amended complaint. See Section E, infra.
A. T.C.R.C.P. 12(b)(6) Motion to Dismiss Standard
Defendants seek to dismiss Fa'amuli’s complaint on the basis that it does not state a claim for which relief may be granted. This standard is difficult for the proponent of the motion to meet; it is much more exacting than that required for summary judgment. “The . . . standard with [12(b)(6) motions] is that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Moeisogi v. Faleafine, 5 A.S.R.2d 131, 134 (1987) (citing Conley v. Gibson, 55 U.S. 41 (1957)). In considering a 12(b)(6) motion, the court assumes the allegátions in the complaint are true. Rogin v. Bensalem Township, 616 F.2d 680, 685 (9th Cir. 1980). The burden of *222proving the absence of a claim rests on the party seeking dismissal. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). We apply this standard to Fa'amuli’s claims against various defendants in the sections to follow.
B. The Board of Higher Education
We begin with the easiest issue. Plaintiff has stipulated to the dismissal of the Board, citing to Aga v. Am. Samoa Gov’t, 3 A.S.R.2d 130 (Trial Div. 1986). The complaint against the Board is accordingly dismissed.
C. American Samoa Community College
Fa'amuli sues ASCC under A.S.C.A. § 16.2002, which provides that the ASCC can sue and be sued in its own name. (1st Am. Compl. ¶ 2.) While ASCC, through Attorney Hall’s office, filed an answer on the same day his office filed the defendants’ motion to dismiss, ASCC is not, however, listed as one of the movants. Rather, the motion is filed only on behalf of Hunkin in her official capacity as ASCC president and the Board. See Section E, infra, treating issues regarding this representation. Fa'amuli, therefore, maintains all claims against ASCC.
D. American Samoa Government
Fa'amuli sues ASG under A.S.C.A. § 43.1211, a provision of the Government Tort Liability Act (“GTLA”). (1st Am. Compl. ¶ 4.) Fa'amuli initiated an action against ASG by filing an administrative claim with the Attorney General’s office, as required by A.S.C.A. § 43.1205. The Attorney General’s office received this claim on October 25, 1999, and failed to dispose of the claim within the prescribed 90 day time period. A.S.C.A. § 43.1205(a). The claim is accordingly deemed denied by the Attorney General, and Fa'amuli has satisfied the prerequisite exhaustion of administrative remedies. Id. This Court has jurisdiction over claims under the GTLA. A.S.C.A. § 43.1209.
ASG’s answer raises five affirmative defenses to Fa'amuli’s complaint. First, it asserts that the complaint fails to state a claim upon which relief can be granted. ASG has failed to offer any support for this contention. Rather, ASG’s counsel merely attempted to join Hunkin’s motion to dismiss at the hearing held on March 30, 2000. Hunkin’s motion to dismiss, however, is almost entirely based on a theory of qualified immunity, which is entirely inapplicable to ASG.
ASG next asserts that Fa'amuli’s failure to exhaust administrative claims results in her claims failing due to lack of ripeness. At this point in time, this assertion is no longer correct, Fa'amuli having pursued her administrative complaint under the GTLA and having exhausted her *223remedies within the ASCC grievance structure. This defense accordingly fails.
ASG also contends that Fa'amuli’s injuries are highly speculative and must be proved at trial. That may be so, but even if true, offers no support for dismissal. Similarly, Fa'amuli’s mitigation of damages is a legal and factual issue requiring further development. Finally, ASG argues that Fa'amuli’s failure to allege any physical manifestation of injuries suffered due to claimed intentional and/or negligent infliction of emotional distress precludes these claims. The standard for 12(b)(6) motions, however, does not require such allegations at this stage of the proceedings. Section A, supra. In sum, none of these affirmative defenses suffices to carry ASG’s motion to dismiss.
E. Salu S. Hunkin in her individual and official capacities
Fa'amuli sues defendant Hunkin both in her capacity as President of ASCC and as an individual. (1st Am. Compl. ¶ 5.) We first note serious questions regarding Hunkin’s representation. The GTLA states at A.S.C.A. § 43.1211 that the Attorney General “shall defend any civil action or proceeding brought in American Samoa against any employee of the government, or his estate, for any such damage or injury.” According to this provision, the AG, and not counsel Hall, should be representing defendant Hunkin in her official capacity. Accordingly, Hunkin, her counsel, and the Attorney General shall enlighten us on this statutory issue.
Next, we further note the following uncertainty with Fa'amuli’s complaint. First, although she recounts various actions taken by Hunkin that could give rise to the causes of action she asserts against the other defendants, she fails to state which cause or causes of action upon which she is basing her request for punitive damages against Hunkin in her individual capacity. Second, nowhere in her prayer for relief does Fa'amuli allege specific causes of action against Hunkin, nor does she seek damages against Hunkin, in her official capacity. (1st Am. Compl. 7-8.) Thus, Fa'amuli has failed to explicitly state any claim at all against Hunkin.
Granting a 12(b)(6) motion is not, however, “the proper remedy for inartful pleading.” Sisbarro v. Warden, Mass. State Penitentiary, 592 F.2d 1 (1st Cir. 1979) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Where a more carefully drafted complaint might state a claim, a plaintiff should ordinarily be given leave to amend. Alley v. Resolution Trust Corp., 984 F.2d 1201, 1207 (D.C. Cir. 1993); see also Lilley v. Charren, 936 F. Supp. 708, 713 (N.D. Cal. 1996); Cabo Distrib. Co. v. Brady, 821 F. Supp. 601, 608 (N.D. Cal. 1992). Other jurisdictions have set the time period for amending the complaint in such cases at either 10 *224or 20 days. See, e.g., Miller v. Holiday Inns, Inc., 436 F. Supp. 460, 461 (E.D. Va. 1977) (10 days); Brown v. Farview State Hosp., 386 F. Supp. 607, 609 (E.D. Pa. 1974) (20 days). Fa'amuli has 20 days to amend her complaint to specify causes of action asserted against and relief sought from Hunkin in both her official and individual capacities, in addition to the clarification of her “wrongful reassignment” claim as discussed earlier. In the meantime, we will deny Hunkin’s motions to dismiss.
Additionally, we deny Hunkin’s motion, under the authority granted us by either T.C.R.C.P. 7(a) or 12(e), seeking an order directing Fa'amuli to state with specificity the clearly established law of which Hunkin should have been aware for purposes of resolving the qualified immunity question. Generally, the burden is on the officer accused of unlawful conduct to prove entitlement to immunity. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Careful examination of the passage Hunkin quotes from Crawford-El v. Britton, 118 S.Ct. 1584, 523 U.S. 574 (1998), does not change this basic principal.
Where a plaintiff alleges a claim requiring proof of wrongful motive against a public official, Crawford-El states that a court may utilize either rule 7(a) or 12(e) to “insist that the plaintiff ‘put forward specific, nonconclusory factual allegations’ that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment.” Crawford-El, 118 S.Ct. at 1596-1597 (quoting Siegert v. Gilley, 500 U.S. 226, 235 (1991) (Kennedy, J., concurring)). Fa'amuli has done so in her complaint. Regarding immunity, Crawford-El merely states that if the defendant pleads the immunity defense, the trial court must resolve that threshold question before permitting discovery by inquiring into whether the official’s conduct violated. clearly established law. Id. at 1597. This passage mentions nothing about having the plaintiff assume the burden of proving the inapplicability of the defense, and we accordingly decline to do so.
Order
For the foregoing reasons, defendants’ motions to dismiss are resolved as follows:
1. The Board is dismissed as a defendant.
2. ASCC remains in the suit.
3. ASG’s motion to dismiss is denied in its entirety.
4. Hunkin’s motions to dismiss, in both her individual and official capacities, are denied pending amendment of the complaint to specify *225the causes of action asserted and relief sought against her in these capacities. Fa'amuli has 20 days to amend her complaint.
5. Hunkin’s motion for an order directing Fa'amuli to specify the existing law of which Hunkin should have been aware, for purposes of deciding the qualified immunity question, is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486665/ | ORDER DENYING MOTION FOR MENTAL EXAMINATION
Counsel for defendant Seeks an order to submit' his client to a psychiatric evaluation principally on counsel’s contention that defendant’s action in turning himself into the police with a cache of controlled substances was conduct so “bizarre” to warrant a mental examination. This motion is being belatedly made after the defendant had waived his right to a preliminary examination before the District Court and entered a plea of not guilty, subsequent to waiving the reading of the information and rights, and upon arraignment before this court.
Under A.S.C.A. § 46.1303, the court may order a psychiatric evaluation on the motion of either party or sua sponte. The scope of the examination, unless otherwise specified, is to determine whether (1) defendant is competent to stand trial and (2) whether he was sane at the time of the criminal act charged. A.S.C.A. § 46.1304(b) (1) and (2). All persons are presumed to be sane or mentally competent, see A.S.C.A. § 46.1306, unless a preponderance of the evidence indicates otherwise. Am. Samoa Gov’t v. Taylor, 16 A.S.R.2d 44, 46 (Trial Div. 1990).
We find the showing insufficient to order an evaluation. An attack of conscience, for instance, is hardly grounds to believe one is incompetent to stand trial. By turning himself in, the defendant obviously appreciated the wrongfulness of his conduct. Second, by doing so, he conformed his *234conduct to the law in probably the most drastic fashion possible.
The motion is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486737/ | ORDER DENYING MOTION TO DISMISS ANSWER AND COUNTERCLAIM
Plaintiff has moved to “dismiss” defendant’s answer and counterclaim, arguing that defense counsel is a private attorney thus improperly representing defendant, a government agency. Plaintiff submits that only the Attorney General can properly represent a government agency. Citing to U.S. mainland caselaw, plaintiff contends that it is the role of *102the Attorney General to prosecute and defend legal actions involving agencies of state governments.
While this is generally true, Attorneys General are by no means exclusive actors in the field of governmental representation. The statute creating a state agency or office may authorize, expressly or implicitly, the engagement of counsel, other than the Attorney General. Shute v. Frohmiller, 90 P.2d 998, 999 (Ariz. 1939); State Comp. Ins. Fund v. Riley, 69 P.2d 985, 987 (Cal. 1937) (agency’s power to appoint counsel can be implied from general provisions of the statute creating agency); 7 Am. JUR. 2d Attorney General §§ 19-20 (1997, 2000). The specific grant of power to a state agency to “sue and be sued” has been held to constitute authority for it to appoint its own counsel. Watson v. Caldwell, 27 So. 2d 524, 528 (Fla. 1946).
The statute authorizing the creation of the American Samoa Community College imbues the school with the power and responsibility to “sue and be sued.” A.S.C.A. § 16.2002. The American Samoa Community College also has the power to enter into contracts. Id. We see no provision in the Territory’s Constitution directly contrary to this interpretation. Agencies are not directly forbidden to employ attorneys other than the Attorney General, and the Attorney General is not anointed as the only option the government has for legal counsel. We therefore hold that the statute creating the college implies, in this instance, the power to hire outside counsel.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486668/ | ORDER DENYING DEFENDANT’S MOTION FOR BAIL REDUCTION AND GRANTING PLAINTIFF’S MOTION FOR NO BAIL
This matter came on regularly for arraignment on November 8, 2000, following the defendant’s waiver of preliminary examination before the District Court. The defendant is charged with multiple counts of assault ranging from third degree to first degree assault charges. The complainant is his wife who is presently under protective custody with the government.
*248Following arraignment, the defendant orally moved to reduce bail, set by the District Court at $50,000, to $25,000 arguing that he was not a flight risk. The government countered with its own oral motion to reinstate the initial order of “no bail” as set out in the warrant for the defendant’s arrest. The government referred to the defendant’s history of violent behavior toward his immediate family and additionally alerted the court to an attempt made on the defendant’s behalf to contact the complainant by way of a letter and $20.00 while she remained under the protective custody of the government. We took both motions under advisement.
The day following arraignment, and pending a decision on the oral motions addressing bail, the defendant tendered proposed sureties purporting to cover the amount of bail here before set in the sum of $50,000. The supporting documents for sureties are facially dubious in many respects. First, the Kelly Blue Book values, readily available on the Internet, for some of the automobiles tendered as collateral were outright fabrications. Second, the valuation estimates attributed to ASCO motors are unsigned, undated, and simply looked suspicious. Upon investigation by the Court’s probation office, the ASCO Motors’ valuations proved to be bogus. See Affidavit of Chief Probation Officer filed Nov. 16, 2000.
The defendant is quite obviously a desperate character. Having regard to the nature of the charges against the defendant and the attendant circumstances as deposed to by the arresting officer in his affidavit in support of arrest warrant, the defendant’s demonstrated propensity for violent behavior toward others, see Am. Samoa Gov’t v. Siaumau, DCCr. 62-95; Am. Samoa Gov’t v. Siaumau, DCCr. 67-95; and Am. Samoa Gov't v. Siaumau, DCCr. 47-88, and in light of the bail sham tendered by the defendant, we find the presumption great that the defendant not only committed (an) infamous crime(s) but that he is a danger to the complainant and society if released on bail.
Accordingly, the defendant’s motion for bail reduction is denied, and the government’s motion for no bail is granted.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486669/ | OPINION AND ORDER
Plaintiff American Samoa Government (“ASG”) initiated this action for declaratory relief on November 27, 1996, to resolve the status of a $50,000 statutory deposit. The case came for trial on March 10 and 27, 2000. All parties were present by counsel.
Facts
The funds were held by defendant Amerika Samoa Bank (“ASB”) until commencement of this litigation, and were then deposited in the Court’s registry. Entitlement to the funds is contested by two parties: (1) the Insurance Company of Samoa, Insurance and Reinsurance, Inc. (“ICS”), previously known as “La Fénix of Samoa, Insurance and Reinsurance”; and (2) John C. Craft, the court-appointed Special Deputy Liquidator (“Liquidator”) for La Fénix Boliviana S.A. De Seguros y Reaseguros, Insurance and Reinsurance, Inc. (“LFB”).
The status of the. statutory deposit depends upon a number of issues complicated by the parties’ variable arguments and misrepresentations, as well as the greater context of tins case within a scheme of international insurance fraud.
LFB is a foreign corporation incorporated in Bolivia. On December 1, 1993, ASG’s Insurance Commissioner issued a Certificate of Authority to transact insurance business as an insurer to LFB. The ASG Attorney General (“Attorney General”) later directed LFB to meet the requirements for obtaining an insurer’s bond under A.S.C.A. § 29.0302(6).1 On or about January 27, 1994, LFB was granted a foreign *252corporation permit to transact business pursuant to A.S.C.A. § 30.0304 by the Governor of American Samoa. ASG’s Treasurer incorrectly issued a Certificate of Incorporation as a domestic corporation to LFB on January 31, 1994.
ICS, though it has represented itself as a local branch of LFB, was established as a separate corporation. Its Articles of Incorporation, dated July 11, 1994, used the name of “La Fénix of Samoa Incorporated, (dba LFS-Insurance and Reinsurance).” ASG’s Treasurer issued to it a Certificate of Incorporation under the name of “La Fénix of Samoa” “LFS”) on November 22, 1994. No provision in the Articles of Incorporation of LFS, nor any documents presented to this Court, give rise to any indication that LFB and LFS were parent-subsidiary or sibling corporations.
On November 16, 1994, attorney Ellen Ryan (“Ryan”) deposited $50,000 with ASB, in the name of LFB, in return for a certificate of deposit. The certificate of deposit was assigned to ASG’s Insurance Commissioner. The $50,000 certificate was thereby established as a statutory deposit in lieu of the insurer’s bond for the foreign corporation LFB, to obtain and sustain LFB’s Certificate of Authority.
On October 27, 1994, Ryan, an officer, director and attorney of ICS and attorney for LFB. was authorized to make the $50,000 deposit by Cheryll Coon (“Coon”), representing LFB. Less than one month later, on November 24, 1994, the United States District Court for the Western District of Missouri enjoined Coon from “dissipating, encumbering or disposing of specific enumerated assets that the U.S. Government alleged are subject to forfeiture” in relation to LFB and other companies. See United States v. Riley, 78 F.3d 367, 369 (8th Cir. 1996). On February 13, 1996, before the same federal district court, Coon was convicted of ten felonies relating to insurance fraud, and her business partner, Travis Riley, was convicted of eleven felonies. See Angoff v. M&M Mgmt. Corp., No. CV 194-799CC, slip op. at 4 (Cir. Ct. of Cole County, Mo. April 2, 1996).
On November 25, 1994, the day after Coon was enjoined with respect to LFB’s assets, LFS’s board of directors resolved to change the name of LFS to “Insurance Company of Samoa, Insurance and Reinsurance, Inc.” pursuant to A.S.C.A. § 30.0120. On January 13, 1995, ASG’s Treasurer *253issued a Certifícate of Incorporation in the amended name. It is noted that until and after this point in time, LFS or ICS, as an independent corporation, never submitted an application to ASG’s Insurance Commissioner for a Certificate of Authority to transact insurance business in American Samoa. Nor has LFS or ICS ever complied with the many requirements listed under A.S.C.A. § 29.0302, including, most pointedly, submitting financial statements and creating a $50,000 insurer’s bond under A.S.C.A. § 29.0302(4) and (6), respectively.
About two months after LFS changed its name to ICS, aggressive and affirmative steps were taken to shift the insurance identity of LFB into that of ICS. On January 20, 1995, Ryan wrote a letter to ASG’s Insurance Commissioner, misrepresenting that ICS was “originally called La Fénix Boliviana Insurance and Reinsurance Inc.,” but was now incorporated locally. “[M]y clients wish to emphasize the company as a local entity and, we have since gone through a change of name,” she stated. In the letter, Ryan implied that the name of the company LFB was to be changed on all official documents, including the foreign corporation permit to transact business, the insurer Certificate of Authority, and the business license. Based on this letter and other conversations, and without further apparent investigation, ASG’s Insurance Commissioner issued a continuance of Certificate of Authority to ICS on January 24, 1995, and a Certificate of Authority on February 2, 1995. Finally, on April 26, 1995, Ryan had ASB change the name of the $50,000 statutory deposit account from LFB to ICS, still subject to the assignment to ASG’s Insurance Commissioner. ICS began negotiating insurance, contracts and conducting insurance business in May or June of 1995 and, under the evidence at least, has continued to conduct insurance business since.
The Circuit Court.of Cole County, State of Missouri, rendered judgments and orders on April 2, 1996, and April 10, 1996, regarding the appointment of the Liquidator for several persons and entities including LFB. On April 12, 1996, the Liquidator’s attorney alerted ASG’s Insurance Commissioner by letter that the Liquidator was entitled to LFB’s assets under any name, potentially including the $50,000 statutory deposit. Yet on November 1, 1996, ASG’s Insurance Commissioner then in office, Albert Atuatasi (“Atuatasi”) granted a continuance of Certificate of Authority to ICS. Then, on November 21, 1996, Don Fuimaono (“Fuimaono”), an ICS stockholder, and Atuatasi together went to ASB and requested that the bank release the $50,000 certificate of deposit to ICS. ASB refused this request, based on the advice of the Attorney General’s office. ICS cross-claims against ASB for general, special and punitive damages resulting from ASB’s failure to release the certificate of deposit.
*254ASG moved for summary judgment on February 5, 1997, joined by ASB and the Liquidator for LFB, on the issue of the separate identities of LFB and ICS, which this Court denied in an order entered on May 20, 1997.
Discussion
We address four issues:
(1) Whether the $50,000 certificate of deposit in the account name of ICS and assigned to ASG’s Insurance Commissioner is the deposit required by statute for LFB or for ICS.
(2) Whether ASG’s Insurance Commissioner has the right to retain control over the statutory deposit until the existence of any and all policies .issued by either ICS or LFB, and all claims against those policies, have been determined.
(3) Whether ICS or the Liquidator for LFB is entitled to the interest earned on the statutory deposit during the period that the deposit was held by ASB.
(4) Whether ASB is liable to ICS for refusing to release the statutory deposit to ICS.
A. Statutory Deposit for LFB or ICS
The first issue concerns whether the $50,000 certificate of deposit is the statutory deposit for LFB or for ICS.
The statutory deposit was originally established in the name of LFB on November 16, . 1994, and. was assigned to ASG’s Insurance Commissioner in fulfillment of the insurer’s bond requirement in A,S.C.A. §29.0302(6) for obtaining a Certificate of Authority to transact insurance business in American Samoa as an insurer. The name on the account was changed from LFB to ICS on April 26, 1995, and the certificate of deposit has been in the account name of ICS since then. It is clear that LFB originally made the statutory deposit on its own behalf. The question is whether the later change in the named principal on the statutory account has any substantive effect on LFB’s ownership of the deposit. We hold that it does not.
As a matter of law, the AS.C.A. § 29.0302(6) statutory deposit is not transferable or assignable. The insurance laws of American Samoa, A.S.C.A. §§ 29.0301 to 29.0324, do not provide for transfer of ownership of insurer’s bonds or statutory deposits, save for transfers by an insurer to ASG’s Insurance Commissioner, and only then “for the use and benefit of any person injured by the breach [of the condition of any *255bond].” A.S.C.A, §29.0302(6). The provision further declares that the surety on the bond, or in this case, the bank holding the statutory deposit, “shall be answerable up to the amount of the [deposit] for all judgments, decrees, or orders given, made or tendered against the principal on the [deposit] by the High Court of American Samoa for the payment of money . . . .” Id. It is clear from these relevant statutory provisions that the statutory deposit, once made, is not freely transferable, but rather is specifically committed to rendering legal obligations incurred by the principal.
Relevant case law further affirms our interpretation. It has been variously and unanimously held that a deposit made by an insurance company as a condition of its right to do business constitutes a trust fund for the benefit of the insurer’s policyholders, and for the insurer’s creditors after the claims of policyholders are satisfied. See, e.g., Am. United Life Ins. Co. v. Fischer, 130 F.2d 643 (8th Cir. 1942); Ingram v. Reserve Ins. Co., 281 S.E.2d 16 (N.C. 1981); In re Lloyds Ins. Co. of Am., 290 N.Y.S. 759 (N.Y. 1936); see also George J. Couch & Ronald A. Anderson, Couch on Insurance § 22.9 (2d ed. 1984). The statutory deposit is essentially a trust for the insured; its establishment and maintenance must be directed towards ensuring that insurers perform their obligations. The law is meaningless, and the statutory deposit spurious, if the named principals on the bond or deposit may be changed, for whatever reason, to allow insurers to evade judgment. An insurer such as LFB may assign its statutory deposit to another insurer, but it must first comply with the proper legal means for establishing a formal, succession of interest. An assignee insurer is entitled to the statutory deposit of an assignor insurer only if the assignee insurer has assumed all obligations liabilities and assets of the assignor insurer, through corporate merger or other lawful means. State ex rel. Safeguard Ins. Co.. v. Vorys, 167 N.E.2d 910, 914 (Ohio 1960); Lucas v. Pittsburgh Life & Trust Co., 119 S.E. 109, 113 (Va. 1923).
Though ICS may have regarded itself as a successor-in-interest to LFB, as a. factual matter, ICS and LFB remain separate and distinct entities. LFB is a foreign corporation incorporated in Bolivia; ICS is incorporated in American Samoa. Ryan and Fuiamono have used the Certificate of Incorporation mistakenly issued by the Treasurer to LFB on January 31, 1994, to misrepresent LFB as a domestic corporation which became ICS. However, one company’s domestic certificate of incorporation does not establish an identity between it and another company holding a separate, local certificate of incorporation. Moreover, LFB neither applied for nor complied with the statutory requirements concerning domestic incorporation; its Certificate of Incorporation is prima facie invalid, A.S.C.A. § 30.01.
*256The parties have all raised the possibility of treating LFB and ICS as a single corporation, given that ICS has represented itself as such, and that business decisions for both entities seem to have been made by or through the same persons. Though this would be convenient for practical purposes, we do not find sufficient legal basis for holding LFB and ICS to be the same corporation. Neither merger nor other change of corporate form has occurred to formally establish shared interests between LFB and ICS. LFB owns no stock of ICS, and ICS owns no stock of LFB. There is no evidence of a formal transfer of obligations, liabilities and assets from LFB to ICS. There is, in short, nothing to suggest that the companies are affiliated in any parent-subsidiary or sibling sense, which would in turn trigger evaluation based on alter-ego or instrumentality theories.2
Moreover, even if we were to hold, that ICS had somehow succeeded LFB’s interests, we still could not authorize release of the statutory deposit to ICS. Cases such as Lucas v. Pittsburgh Life & Trust Co. have held that a resultant corporation, in order to withdraw statutory deposits, must have complied with the appropriate regulations for conducting insurance business as an insurer. 119 S.E. at 113. In American Samoa, this means that the company must hold the proper Certificate of Authority, have an independent statutory deposit or insurer’s bond, and be approved by the Insurance Commissioner. A.S.C.A. §29.0302. In other words, the resultant company attempting to withdraw the funds must be a valid insurer, rather than merely a recipient shell.
We cannot authorize ICS to take the statutory deposit for LFB because it does not qualify as a valid insurer. Specifically, ICS has never subjected itself to the procedures delineated by A.S.C.A. § 29.0302 to obtain the three Certificates of Authority issued to it to transact insurance business in American Samoa. It has never independently placed an insurer’s bond or statutory deposit. It has never submitted financial or business statements for evaluation. The three Certificates of Authority issued to ICS — on January 24, 1995, February 2, 1995, and November 1, 1996, by two different ASG Insurance Commissioners — were all obtained by misrepresentation in violation of A.S.C.A. § 29.0214, prohibiting false or misleading filings with the Commissioner. The laws *257of American Samoa do not grant ASG’s Insurance Commissioner absolute discretion to grant Certificates of Authority but rather constrain the Commissioner to follow and enforce all insurance laws. A.S.C.A. § 29.0201(b). The Commissioner may only issue continuances of Certificates of Authority so long as the insurer is entitled to a Certificate of Authority in the first place, A.S.CA. § 29.0306(a), and the Commissioner has discretion to reinstate Certificates of Authority that have expired only after all failures have been cured. A.S.C.A. § 29.0306(c). In short, the Insurance Commissioner does not have unbridled discretionary authority to issue Certificates of Authority; all insurers must comply with the specifically delineated statutory requirements of A.S.C.A. § 29.0302. ICS has not complied with these mandates. We therefore declare null and void the three Certificates of Authority issued to ICS. ICS is not authorized to transact insurance business as an insurer, and is not qualified to obtain the statutory deposit.
LFB is the hue owner of the $50,000 statutory deposit. ICS has not been established as a legal successor-in-interest to LFB, and even if it were, ICS is not a legally valid insurer. ICS is barred from both conducting the business of insurance, as well as from taking LFB’s deposit. The Liquidator is, therefore, entitled to recover the statutory deposit.
B. Retention of the Statutory Deposit
We have established that the $50,000 certificate of deposit under A.S.C.A. § 29.0302(6) is a trust for LFB’s policyholders. Who then, is entitled to it, and when?
The Liquidator argues that LFB has not issued insurance policies within American Samoa, that it can no longer do so, and that this Court can no longer make any judgments, decrees or orders against LFB according to the Liquidation Order which is given full faith and credit pursuant to Article IV, Section 1 of the United States Constitution. He thus argues that he is entitled to withdraw the statutory deposit free and clear of any competing interest. We agree that the Liquidator for LFB is entitled to the deposit, as per the orders of Angoff v. M & M Management Corp., No. CV 194-779CC (Cir. Ct. of Cole Co., Mo. April 2, 1996), regarding the liquidation of M & M companies. However, we do not find him to be entitled to the deposit entirely ‘free and clear” of competing claims.
The mere fact that a company has ceased to do business within a jurisdiction does not warrant full withdrawal of the statutory deposit; See Cont’l Band & Trust Co. v. Gold, 140 F. Supp. 252, 255 (E.D.N.C. 1956); S. British Ins. Co. v. Younger, 58 F.2d 1049, 1049-50 (S.D. Ohio 1932). In South British, a foreign insurance company had ceased to do business in Ohio and was not allowed to withdraw its statutory deposit, *258though created under Ohio law, because the company still had policyholders in other states. S. British Ins. Co., 58 F.2d at 1049. We agree with the crux of this case, which is that a statutory deposit may not be withdrawn by a company insofar as any policyholders, not only those local policyholders for whom the trust was originally created, have been and remain obligated thereby. It has been further held that a statutory deposit may only be returned to an insurer when the insurance commissioner is satisfied that all obligations for which the deposit was made to secure have been paid or are extinguished. State ex rel. Cont’l Cas. Co. v. Stafford, 160 N.E. 239, 241 (Ohio 1927); see also Couch & Anderson, supra, at § 22:115.
In this case, the LFB statutory deposit was used by ICS to obtain authorization to transact business in American Samoa. Beginning in 1995, ICS used this misbegotten authorization to attract and entrap customers to whom it might now still owe obligations, despite lacking actual authorization or legal foundation to do so. Because there are still possible policy holders remaining whose business was assured by the contested statutory deposit, we will not allow it to be withdrawn until these obligations are cleared.
It may be argued that LFB, as the true owner of the statutory deposit, need not oblige its statutory deposit to the policyholders of ICS, an entirely separate corporation and insurer. However, there is case law which supports this equitable course of action. In EW Truck & Equipment Co. v. Coulter, we treated three separate entities as a single entity to construe a contract, since they held themselves out as such. 19 A.S.R.2d 61, 66 (Trial Div. 1991). Also, the Appellate Court of Indiana in Conrad v. Olds held that a true owner may be estopped from asserting title to deposited securities when he knows of and acquiesces to their use as a part of a trust fund for the protection of policyholders. 37 N.E.2d 297, 303 (Ind. App. Ct. 1941); see also Couch & Anderson, supra, at § 22:109. As the Conrad court also reasoned, an agent’s knowledge will be imputed to the principal, when the matter is within the scope of the agent’s authority and with reference to matters over which the agent’s authority extends. 37 N.E.2d at 303; see also Mid-Continent Paper Converters, Inc. v. Brady, Ware & Schoenfeld, Inc., 715 N.E.2d 906, 909 (Ind. App. 1999). In this case, LFB seems not only to have known of the nature of the transfer, but Ryan, its director, officer, and attorney, effectuated it. Therefore, due to its affirmative activity, knowledge, and acquiescence, LFB is estopped from claiming the securities.
In Niccolls v. Jennings, where one party’s financing and cooperation masked the other party’s business with an apparent condition of solvency and enabled the other party to attract the patronage of customers, the Florida Supreme Court applied principles of equity to reroute stock assets so as to restore defrauded customers to their original *259position. 92 So. 2d 829, 834 (Fla. 1957). Similarly, the case at hand involves misappropriation by one party of another’s deposit in order to make an illegitimate business seem legitimate. We thus apply principles of equity to estop LFB, or the Liquidator for LEB, from withdrawing the statutory deposit so long as innocent policyholders might be defrauded thereby.
We have concluded that, as a matter of law, the statutory deposit belongs to LFB. We now hold that, as a matter of equity, the statutory deposit is to be held by ASG’s Insurance Commissioner in trust for the policyholders of both LFB and ICS, the remainder to return to the Liquidator for LFB. The funds will, however, remain in the Court’s registry to be disbursed by court order only.
C. Entitlement to the Interest Earned on the Statutory Deposit
We now address the corollary issue of entitlement to the interest based on the statutory deposit account with ASB. Clearly, the interest earned on a statutory deposit belongs to the insurance company for whom the deposit is made. See Des Moines Mut. Hail & Cyclone Ins. Ass’n v. Steen, 175 N.W. 195, 195 (N.D. 1919).
We hold that the Liquidator for LFB is entitled to recover the interest earned on the statutory deposit while ASB held these funds and paid to ICS. According to Fuimaono, he twice collected interest on the statutory deposit in ICS’s name, each time in the amount of approximately $2,000.00. However,, details are not in evidence as to the dates and exact amounts of any such payments to Fuimaono on ICS’s behalf. We will schedule a hearing, at the Liquidator’s request, to determine these facts should he decide to pursue this matter.
D. ASB’s Refusal to Release the Statutory Deposit
It remains to be determined whether ASB owes damages to ICS for refusing to release the statutory deposit.
Specifically, ICS contends for damages of two million dollars due to ASB’s refusal on November 21, 1996, to release the deposit to ICS. The issue is whether the nominal owner of a statutory deposit is entitled to withdraw it, despite having no legal basis to do so. The short answer is no. ASB was neither obligated nor authorized to release the $50,000 to ICS, and ICS is not entitled to damages based on ASB’s appropriate refusal.
ASB was under no fiduciary duty to release the statutory deposit to ICS. The certificate of deposit was a special account deposit, assigned to ASG’s Insurance Commissioner for use as a statutory deposit in lieu of *260an insurer’s bond under A.S.C.A. § 29.0302(6). For such special account deposits, a bank is obligatéd to exercise reasonable care as bailee of the deposit, and must use it for its intended purpose. Bank of Am. Nat’l Trust & Sav. Ass’n v. Bd. of Supervisors of the County of Los Angeles, 208 P.2d 772, 775 (Cal. Ct. App. 1949).
In this case, as we have already stated, the deposit was established to fulfil the statutory deposit requirement under A.S.C.A. § 29.0302(6), for LFB to obtain a Certificate of Authority to transact business as an insurer in American Samoa. The certificate of deposit qualifies as a special account, assigned to ASG’s Insurance Commissioner as a trust for policyholders to whom LFB was obligated. Thus, ASB was obligated to exercise reasonable case to ensure that the account was used for the explicit purpose of protecting policyholders.
ASB was correct in refusing to release the statutory deposit to Fuimaono, representing ICS, and Atuatasi, then ASG’s Insurance Commissioner, when they attempted to withdraw the deposit on November 21, 1996. No formal evidence or documentation was proffered to ASB regarding the planned purpose of the funds, by which ASB might have adjudged the legitimacy and seriousness of the withdrawal request. Further, ASB immediately consulted with the Attorney General’s office, which informed ASB by letter that the office was investigating a claim for those funds by a court-appointed liquidator, and that ICS was being investigated by the FBI. The Attorney General requested that ASB not release the bond to ICS or Atuatasi “without further notice from, this office or order of court of competent jurisdiction.” The lack of substantiation by Fuimaono and Atuatasi on the one hand, and the Attorney General’s affirmative advice on the other, confirm that ASB exercised reasonable care in protecting the deposit as regards its intended purpose. Second, ICS has never been and never will be entitled to withdraw the deposit. We have found LFB to be the owner of the statutory deposit, to which ICS has no right. ICS’s policyholders are entitled to claim it insofar as they have been injured by the fraud perpetrated by ICS in falsely holding itself forth as a properly-endowed, properly-authorized insurer under the laws of American Samoa. ICS was not damaged by ASB’s refusal to release to it the funds in the certificate of deposit.
Order
1. ICS shall conduct no further insurance business in American Samoa until it properly complies with the statutory requirements for doing so.
2. ICS shall pay to the Liquidator for LFB the total amount of all interest earned on the $50,000 statutory deposit that Fuimaono collected in the name of ICS while ASB held the deposit. The Liquidator should file a *261motion for an evidentiary hearing to determine the dates of payments and exact amounts paid by ASB to Fuimaono acting on ICS’s behalf.
3. ICS’s cross-clam against ASB is dismissed.
4. ASG’s Attorney General and Insurance Commissioner shall immediately issue public notices to advise the public of the liquidation of LFB and that neither LFB nor ICS is an authorized insurer in American Samoa.
5. ASG’s Attorney General and Insurance Commissioner shall investigate to determine who are the policyholders of LFB and ICS what is the extent of their claims against LFB or ICS on account of their insurance policies; and if they still have any potential exposure to loss.
6. After 120 days, if no policyholders of LFB or ICS emerge or are found, then the Clerk of Court shall pay to the Liquidator for LFB the amount of $52,540.20 representing the statutory deposit of $50,000 and interest earned on the deposit that ASB transferred to the court’s registry, along with the interest earned on this amount while held in the registry.
7. If policyholders for LFB or ICS are identified, then the entire amount of the funds representing the statutory deposit shall be retained in the Court’s registry until all claims against LFB or ICS, on account of the policyholders’ insurance policies are cleared by this Court.
It is so ordered.
A.S.C.A § 29.0302(6) requires that
Any person desiring to transact insurance business in American Samoa as an insurer shall file with the commissioner an application for a certificate stating the class or classes of insurance which it proposes to transact *252accompanied by the following: ... a good and sufficient bond . . . [or] in lieu of the bond as required by this section, the applicant may deposit with the commissioner acceptable unencumbered securities or other unencumbered assets of the value of $50,000 as surety subject to the same conditions as the bond....
These theories would enable the Court to “pierce the corporate veil” and hold a dominating or parent organization liable for the actions of its subsidiary. The applicable statute is straightforward in authorizing the Court to hold a parent stockholder liable for bad-faith disrespect of the corporate form. A.S.C.A. § 30.0117 states:
A bad-faith failure to substantially comply with the requirements for the organization of a corporation renders the individual property of the stockholder liable for corporate debts. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486670/ | ORDER CONCERNING EVIDENCE AT TRIAL, DENYING PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION, ISSUING INTERIM ORDERS, AND STAYING ACTION UNTIL FILING OF CERTIFICATE OF IRRECONCILABLE DISPUTE
On January 6 and 12, 2000, the Court heard the application of plaintiffs Mausa Malepeai, Liua Taifane, and Mafini Mauga Maugaleo'o (collectively “the Save family”) for a preliminary injunction preventing defendant Leone Catholic Parish (“the church”) and unnamed defendants from trespassing and constructing improvements on the land at issue. At the January 12 hearing, Ernest G. Reid, Maude Reid, Theresa Rotter, Marie Stilwell, Joseph Reid, Richard Reid, Paul Reid, Jaques Reid, and Hector Reid (collectively “the Reid family”) were permitted to intervene in this action. We viewed the land on January 10.
A. Admission of Hearing Evidence at Trial
Based upon counsel’s opening statements, we ascertained that the core issue is ownership of the land at issue. Thus, pursuant to T.C.R.C.P. 65(b), we initially consolidated the preliminary injunction hearing with the trial. However, in the absence of the jurisdictional certificate of irreconcilable dispute, as discussed further below, we will modify that order. The hearing and trial proceedings will not be consolidated. Nevertheless, in accordance with Rule 65, the evidence received at the hearing that would be admissible at trial will become part of the trial record and need not be repeated during the trial.
B. Preliminary Injunction
Under A.S.C.A. § 43.1301(j), a preliminary injunction must be grounded on findings that (a) there is a substantial likelihood that the applicant will prevail at trial on the merits and obtain a permanent injunction against the opposing party, and (b) the applicant will suffer great or irreparable harm before a full and final trial can be held on whether a permanent injunction should issue.
Based on the evidence presented, we will deny the plaintiffs’ request for *267a preliminary injunction. The land at issue is seaside property in Leone. On May 16, 1991, land, which included the land at issue, was registered as the Save family’s communal land. The validity of this registration is a legitimate question in view of the apparent absence of the Save sa'o’s documented concurrence in the registration.
More important for immediate purposes, however, on October 26, 1896, title to approximately nine acres, which included the land at issue, was vested in the French Roman Catholic Mission as freehold land of record by Court Grant No. 389, issued by the Supreme Court of Samoa. The title is presently, by inference, in the Roman Catholic Diocese of Pago Pago.1 The vast majority of the nine acres lies across the road from the land at issue and extends inland. The house of worship of the church in Leone is located across the road directly from the land at issue.
Due registration notices a land title to the world; absent actionable fraud or other legal basis to vacate a registration, the registered title is valid as against all persons subsequently dealing with the same land.2 See A.S.C.A. § 43.0210; Ifopo v. Siatu'u, 12 A.S.R.2d 24, 26 (App. Div 1989). Nothing presently in evidence provides any legal basis to set aside the registration.
There is also other evidence that reinforces the church’s title claim. For example, in 1924, the Save family leased land immediately northwest of the land at issue. This leased land is also part of the Save family’s 1991 title registration. The survey of the leased land acknowledges the church’s ownership of the land at issue. We also take judicial notice of PR No. 9-66, probating the estate of Richard Frederick Reid. The estate included land immediately southeast of the land at issue. In that proceeding, the land at issue was again identified as the church’s land.
Thus, the Save family has not met their burden of establishing by a *268preponderance of the evidence a likelihood that they will prevail at the trial on the merits.
The chinch is presently implementing plans to erect a monument on the land at issue to commemorate the church’s arrival in Leone about 135 years ago and to develop the entire parcel into a small park area. The monument will be located near the cross that the church placed on the land many years ago. The cross memorializes a disease epidemic occurring about 1912. So far, the church has constructed a seawall to protect the eroding shoreline, dug a trench along the westerly side, and placed various construction materials on the land. A drainage pipe will be placed in the trench by the American Samoa Government’s Department of Public Works to correct a water accumulation problem across the road adjacent to the land. The church expects to construct a wall above the pipe, extend the wall at various heights along the roadside and bay side of the land, and install seating areas for visitors. The remainder of the land will be a maintained grass area.
This project completion is scheduled, during the coming Easter season. Delay caused by this action, or presumably other presently unforeseen events, will probably increase the project costs. The more important consideration in this case, however, is any serious harm to the Save family and the Reid family resulting from the church’s project. All parties will benefit rather than be injured by the seawall.- The planned monument and park do not constitute great or irreparable immediate harm. The immediate presence of the trench and construction materials also does not create great or irreparable harm.
Thus, the Save family has also not met their burden of establishing by a preponderance of the evidence great or irreparable harm.
Accordingly, there being no legal basis to enjoin the church and unnamed defendants from proceeding with the church’s ongoing project on the land at issue, we will deny the preliminary injunction sought by the Save family. The church should, of course, understand the risk it takes if it chooses to continue with the project during the pendency of this action. Should the church ultimately lose all or some part of the land at issue by this action to either the Save family or the Reid family, or both families, the church may be required, at its expense, to remove the current improvements, or the offending portion of those improvements, from the land at issue and restore it to its state before the project began. Alternatively, title to the improvements, or the offending portion of them, may become vested in the Save family or the Reid family, or both families.
*269C. Interim Orders Under A.S.C.A. § 43.0304
We are authorized by A.S.C.A. § 43.0304 to issue appropriate interim orders in land actions. We are concerned about the prospects of confrontational episodes between the parties while this action is pending. Therefore, we deem it appropriate to mutually enjoin each side from harassing the other sides in any manner during the pendency of this action. We further deem it appropriate to enjoin the Save family and the Reid family from interfering in any manner with.the church and the unnamed defendants in the construction of the church’s current project on the land at issue. Finally, in fairness, we will enjoin the church and the unnamed defendants from extending any part of its current project onto, or from conducting any activities related to the project on, the adjacent lands of the Save family or the Reid family beyond the boundaries of the land claimed by the church.
D. Stay of Further Proceedings
Under A.S.C.A. § 43.0302(a), mediation proceedings before the Secretary of Samoan Affairs or his deputy and the issuance of a certificate of irreconcilable dispute by one of those officials are prerequisites to judicial determination of controversies relating to communal land. This requirement is jurisdictional, except for purposes of issuing pretrial orders under A.S.C.A. § 43.0302(b) or § 43.0304. See Moeisogi v. Faleatine, 5 A.S.R.2d 131, 132-33 (Land & Titles Div. 1987). Under appropriate circumstances, however, the action may be stayed, rather than dismissed, pending compliance with this jurisdictional mandate. Id.
The Save family claims that the land at issue is the Save family’s communal land, and it appears that the statutory mediation proceedings have not yet taken place. Since we deem that interim orders are appropriate, a stay of further proceedings, except as to proceedings relating to interim orders, is proper in this action, until and unless the mandated certificate of irreconcilable dispute is filed.
Orders
1. In the event of trial to resolve this controversy, all evidence received at the preliminary injunction hearing that would be admissible at trial will be part of the trial record and need not be repeated dining the trial.
2. The Save family’s request for a preliminary injunction is denied.
3. During the pendency of this action, the Save family and the Reid family, and their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are enjoined *270from directly or indirectly harassing the church and the unnamed defendants in any manner, and from interfering in any manner with the chinch and the unnamed defendants in the construction of the church’s current project on the land at issue.
4. During the pendency of this action, the church and the unnamed defendants, and their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are enjoined from directly or indirectly harassing the Save family or the Reid family, and members of those families in any manner, and from extending any part of the church’s current project on the land at issue onto, or from conducting any activities related to the project on, the adjacent lands of the Save family or the Reid family beyond the boundaries of the land claimed by the church.
5. Except as to proceedings related to interim orders, further proceedings in this action are stayed unless and until a certificate of irreconcilable dispute is filed.
It is so ordered.
At some point during the course of this action, the church should ensure that the church as the defendant is named correctly and explain the process by which the Diocese formally succeeded to the title.
The last evidence presented on January 12 were uncertified copies of Court Grant No. 430, issued by the Supreme Court of Samoa and dated November 26, 1896, vesting title to land in Leone named “Fagasaua’ in Paul H. Krause. Court Grant No. 430 confirms Edward Ripley’s conveyance of this land to Krause by deed dated October 9, 1896. The Save family calls the land at issue ‘Fagasaua.” Based on the descriptions in Court Grant No. 430 and Court Grant No. 389, we cannot tell without a professional surveyor’s opinion whether these two court grants relate in any way to the same land. Thus, the impact of this evidence, if any, remains to be seen. The evidence is not cause, however, to alter the decisions in this order. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486671/ | OPINION AND ORDER
Background
This matter came on for trial after languishing for many years on the Court’s pending docket. This case is an offshoot of another larger land dispute involving four of Faleniu village’s leading families following the reversion of a certain area of land that had previously been leased to and occupied by the Mormon Church. Following reverter, pursuant to a stipulated settlement with the Church,1 the senior matai of one of these families surveyed and claimed almost the entire reversionary interest. This in turn provoked a response from the remaining interested families, including Alai'asa Filifili, the plaintiff in the matter now before us (“Plaintiff’), asserting their own competing claims with surveys that went beyond the confines the Church leasehold. In the end, these competing claims hatched the litigation in Moea'i v. Te'o, 8 A.S.R.2d 85 (Land & Titles Div. 1988). The Moea'i case resulted, inter alia, in an award to Plaintiff described as “that portion of his survey which is also within the Moea'i survey, with the exception of the tracts retained by the [Mormon] Church and without prejudice to whatever rights Seigafo may have.” Id. at 93-94. The Court ordered that “each party may register the portions of [land] described in the opinion as his family’s communal land.” Id.
In his efforts to secure his judgment granted in the Moea 'i case, Plaintiff has determined that his boundary line runs through defendant Peka Te'o’s (“Defendant”) home. Hence this lawsuit arose.
Discussion
Plaintiff is the senior matai of the Alai'asa family of Faleniu. He claims that Defendant has her home partially located on his family’s communal land known as “Toa.” Plaintiff seeks ouster of Defendant and the removal of her home from his family’s side of the boundary line.
Defendant contends that her home is located within individually owned land known as “Maugasaa” belonging to the late Talanoa Talanoa of *272Faleniu, from whom she claims entitlement.
Plaintiff acknowledged in his testimony that Defendant’s presence on the land was through a person named Talanoa who was Western Samoan in origin. While his knowledge was vague as to a connection between Talanoa and Defendant, whom he thought was Talanoa’s niece, Plaintiff s explanation about Talanoa’s presence in the vicinity was that Talanoa had originally arrived in the Territory through the Mormon Chinch and that he thereafter married into the Si'ufanua family of Faleniu. Plaintiff further testified that his father, who also held the Alai’asa title, had in the 1940s granted Talanoa permission to live on “Toa,” that Talanoa and his family migrated shortly thereafter to United States, and that apart from a family member named Fiso, the Talanoa’s have not been heard of since. Plaintiff asserts that the permission given to Talanoa did not extend to Defendant.
Defendant’s claim of derivative entitlement through Talanoa is corroborated to some extent by the records of the Territorial Registrar. Volume 2 of the Native Land Titles reveals at page 9 the registration in individual ownership of 2.767 acres more or less of “native land” named “Maugasaa” located in Mesepa, Western District, to Talanoa. The registration bears the date Feb. 5, 1949. Additionally, the Talanoa family member referred to by Plaintiff as “Fiso,” also took the stand and identifying himself as Luteru Iosefo Fiso, testified that he is very familiar with the area in dispute since Talanoa was his step-father. Fiso further testified that his mother, while a member of the Moea'i family, was married into the Si'ufanua family; that he, his parents, and his brothers and sisters all lived on Maugasaa; and that Defendant is a relative of his step-father’s.
Findings
The issue of whether or not there is an encroachment is not readily determinable on the evidence before us. For reasons unknown unto the Court, no expert testimony was offered on the claimed encroachment. But this is certainly a case where the expertise of land surveyors, “by reason of [their] knowledge, skill, experience, training, or education” would surely “assist the trier of fact to understand the evidence or determine a fact in issue.” T.C.R.Ev. 702. In lieu thereof, the Court is invited to embark upon its own scrutiny and interpretation of the survey maps filed in the Moea'i case, and determine therefrom in light of the Moea 'i Court’s generally worded judgment in Plaintiffs favor, whether there is a boundary encroachment as is claimed. (See Pl.’s Rebuttal Resp. to Def.’s Final Arguments 2.) We decline the invitation.
*273Conclusion and Order
Alai'asa as plaintiff has the burden of proof. We conclude that he has failed to discharge that burden. Despite his claim to an encroachment, the evidence shows that Defendant is related to Talanoa, that Talanoa is the registered owner of individually owned land known as “Maugasaa,” and the fact of registration is in derogation of Plaintiff s claim to Talanoa’s permissive use of the land through his predecessor-in-title. We are satisfied that Defendant has provided a credible showing as to her presence on the disputed area and conclude that such presence is, on the preponderance of the scant evidence before us, lawful and derived through Talanoa.
The complaint will, therefore, be dismissed.
It is so ordered.
See Tuiaana v. The Corp. of the Presiding Bishop, CA No. 108-93 (1985). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486672/ | AMENDED ORDER RETURNING SELECTION PROCESS TO FAMILY TO HOLD ONE OR MORE MEANINGFUL FAMILY MEETINGS TO SELECT THE SUCCESSOR MATAI
On December 30, 1997, claimant Olo B. Misilagi Letuli (“Olo”) filed with the Territorial Registrar his claim to succeed to the vacant matai title “Letuli” of the Village of Ili'ili. The claim was noticed and attracted seven timely counterclaims. One of the counterclaimants, Ufuti Fa'afetai Ieremia, dropped out by failing to file the questionnaire required in matai title cases. Another counterclaimant, Fugaipaono V. Tagaloa, withdrew before trial. The trial began on January 25, 2000 and concluded on February 3, 2000. The remaining six candidates and all counsel were present throughout the trial.
*275A. Meaningful Family Meetings
One prerequisite to filing a claim to succeed to a vacant matai title is that a family meeting was called and held for the purpose of selecting the successor, according to the traditions of the family. A.S.C.A. § 1.0406(b). The criteria for judicial determination of a matai controversy includes the wish of the majority or plurality of the customary clans of the family. A.S.C.A. § 1.0409(c)(2). Both statutory requirements respect the common Samoan custom of choosing a matai by a consensus of the participants at a meeting of the family. See In re Matai Title ‘‘Taliaaueafe", 3 A.S.R.3d 225, 227-28 (Land & Titles Div. 1999). Discussions and good faith efforts to settle disputes are integral elements of Samoan family meetings. Section 1.0406(b) contemplates that the family had a meaningful opportunity by this process “to decide for itself whether or not it can select a new titleholder” without judicial intervention. In re Matai Title "Taliaaueafe”, 3 A.S.R.3d at 229.
During their testimony, each of the six candidates addressed the family meetings related to selection of the successor to the presently vacant “Letuli” title. Most of these meetings were actually gatherings of the particular candidate’s immediate family, clan, or some other portion of the extended Letuli family. Only three of the meetings held can be classified as extended family meetings.
Olo was promoted for selection as the successor “Letuli” titleholder at all three of the extended family meetings. In fact, he was the only nominee. At each meeting, however, the consensus was to postpone the selection decision to a later meeting. At the first two meetings, some attendees advocated that, as a matter of respect for the recently deceased titleholder, the dignity of the title, and the importance of the selection process, a year or more should pass before the family choose the next “Letuli” titleholder. At all three meetings, some attendees also expressed concern that Olo had called each of the three meetings when that responsibility traditionally belonged to the holder of the matai title ‘Timu’ as the matua for the “Letuli” title. In addition, some of this group held to the view that the person calling the meetings could not be properly considered to be the successor titleholder.
The present holder of the “Timu” title is Timu Levale (“Timu”), who resides in Hawaii. Olo called the three meetings at least in part because Timu was absent from the Territory and because considerable time had passed without selection of the next holder of the “Letuli” title. Timu had also advised the extended family that, in his view, a two-year period was proper before the extended family select the successor to the title. Timu did not attend the first two meetings of the extended family, but he was present at the third meeting.
*276At the third meeting, on November 8, 1997, Timu announced his intentions of calling the extended family to meet for the selection of the successor titleholder shortly after February 6, 1998, the second anniversery of the late Letali Toloa’s death. By consensus, those assembled agreed with Timu. However, on December 30, 1997, Olo went ahead with filing his claim with the Territorial Registrar for registration of the title in his name.
Considering the number and outcomes of the three meetings of tibe extended family, tibe Court finds that there has not been a meaningful family meeting to select the next holder of the “Letuli” title. Accordingly, we will refer the selection process back to the extended family for that purpose. We will also stay further proceedings in this action until the extended family has achieved that vital purpose and, after the matter has been fully and fairly discussed, has either selected or failed to select the successor titleholder.
B. Special Collateral Matters
1. Ineligible Candidate
Counterclaimant Eni F.H. Faleomavaega (“Faleomavaega”) filed his counterclaim on February 20, 1998. The claim was signed by only nine supporters. A.S.C.A. § 1.0407(b) clearly states that a counterclaim must be signed by no less than 25 supporters related by blood to the vacant title. An exception to this requirement is provided in § 1.0407(d) when the family does not have 25 members qualified to support the counterclaim, and Faleomavaeaga executed the standard affidavit provided by the Territorial Registrar when this circumstance applies. Although the 60-day filing deadline did not expire until March 2, 1998, Faleomavaega explained that he was mistakenly informed on February 19, 1998 that the deadline was the following day, February 20, the same day he was scheduled to depart the Territory, and he could only obtain the nine signatures in this short time span.
Much later, on October 26, 1999, Faleomavaega filed a trial brief and supplement to his. questionnaire that included signatures of another 42 supporters on the standard form. However, he omitted his signature on this form, probably because he was then outside the Territory performing his duties as American Samoa’s Delegate to the U.S. House of Representatives. Clearly, as shown by this filing, as well as testimony and other documentary evidence, the family has considerably more than 25 members who are qualified to support a candidate.
We do not believe that Faleomavaeaga intentionally executed an erroneous affidavit on February 20, 1998. Hurried, he likely did not pay close attention to the Territorial Registrar’s explanation of the purpose of *277the document or carefully read it. Regardless, his counterclaim did not meet the statutory support mandate in a timely manner. Thus, in the context of the present proceeding, Faleomavaega did not become an eligible candidate and cannot be considered by the Court for selection as the next “Letuli” titleholder.
The extended family can, of course, still consider Falemovaega at their next meetings when the family’s decision on the successor to the “Letuli” title is fully discussed.
2.Candidate’s Demise
On March 6, 2000, counterclaimant Iosefo Kapeli Iuli (“Iuli”) passed away at an untimely age. His proponents in the extended family are now effectively deprived from having Iuli or their alternate candidate considered further by the Court in this proceeding to be the successor to the “Letuli” title. The Court will select the next “Letuli” from among the remaining candidates, if we must make that decision. Meanwhile, however, the Court is returning the selection process to the extended family for meaningful deliberations on the “Letuli” successor. Thus, Iuli’s proponents now have the opportunity decide whether to support one of the remaining candidates or to propose another person for consideration during the ensuing extended family discussions.
Order
1. The selection of the next holder of the matai title “Letuli” is returned to the extended family for decision after the family has met and meaningfully discussed the matter on one or more occasions.
2. Within 30 days after entry of this order, Timu, the matua of the “Letuli” title, is directed to issue or cause to be issued written notice of the first extended family meeting for the purpose of selecting the next “Letuli” titleholder. Additional meetings for this purpose should be noticed and held, as may be necessary or appropriate to accomplish the objective. Notices of the meetings shall be disseminated, by radio broadcast, newspaper publication and other appropriate means, to ensure that as many members of the family as possible are informed about the date, time and place of each meeting.
3. In the event that Timu is unable or otherwise fails to issue timely notice of the first meeting of the extended family, Olo is authorized to issue or cause to be issued the notice for this meeting and any subsequent meetings.
4. This action is stayed until the extended family meets and meaningfully discusses the selection of the successor holder of the “Letuli” title. If the *278family successfully selects the successor, any of the present candidates or an appropriate intervenor may move to dismiss the action. If the family fails in the effort to select the successor, any of the present candidates may move to reinstate the proceedings. The Court will then hold an evidentiary hearing to determine if one or more meaningful meetings were held and, upon finding that such meetings were held, will proceed with selection of the successor from among the four remaining candidates.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486673/ | *279OPINION AND ORDER
On February 18, 2000, Plaintiff Amerika Samoa Bank (“ASB”) filed this action against Defendants Ava Malua Hunkin (“Hunkin) and unnamed persons to permanently enjoin them from interfering in any manner with use by B & B Properties (“B&B”), a general partnership, of certain land in Nuuuli, American Samoa, and for damages. A temporary restraining order was issued. Hunkin answered and counterclaimed for damages for ASB’s unjust handling of his and his family’s financial affairs.
ASB’s application for a preliminary injunction was heard on February 28, 2000. ASB’s counsel and Hunkin were present. A preliminary injunction was issued on March 1, 2000. Trial was scheduled for March 17, 2000 but was continued to March 21, 2000. On March 21, Hunkin appeared wilh counsel, and the trial was further continued to, and held on, March 28, 2000. Both counsel were present at trial.
In issuing the preliminary injunction, the Court also ordered that, in accordance with T.C.R.C.P. 65, the evidence received at the preliminary injunction hearing on the application for the preliminary injunction that would be admissible at a trial on the merits be made part of the trial record and need not be repeated at the trial.
Discussion
During the 1980s, Hunkin was a customer of ASB while doing business as Paradise Development Company (“PDC”). ASB provided Hunkin with lines of credit, the last in October 1987 in the sum of up to $300,000, to procure materials for PDC from Pacific Reliant Industries, Inc. (“PRI”), a U.S. mainland business. When Hunkin/PDC failed to meet his contractual payment obligations to PRI, PRI sued to collect the $300,000 then owed and obtained a summary judgment against ASB in this amount on February 11, 1990. See generally Pac. Reliant Indus., Inc. v. Amerika Samoa Bank, 14 A.S.R.2d 41 (Trial Div. 1990). On April 3, 1992, after the Appellate Division affirmed the Trial Court’s decision, see generally Amerika Samoa Bank v. Pacific Reliant Indus.., Inc., 20 A.S.R.2d. 102 (App. Div. 1992), ASB paid PRI $338,958.93, which included post-judgment interest, to satisfy the judgment.
Based on his testimony, Hunkin argues first that neither he nor PDC breached the contract with PRI. However, in Pacific Reliant, the Trial Court clearly found that Hunkin/PDC defaulted in his payment obligations to PRI. 14 A.S.R.2d at 42-43. The Trial Court’s decision was affirmed in all respects by the Appellate Division. Amerika Samoa Bank, 20 A.S.R.2d at 115. Regarding Hunkin’s present contrary claim, the parties, subject matter, and issue in Pacific Reliant and in this action are identical. Thus, Pacific Reliant has res judicata effect in this action *280with respect to Hunkin/PDC’s liability based on non-payment of the contractual obligation to PRI.
On June 8, 1992, by stipulation, ASB’s cross-claim against Hunkin in Pacific Reliant was dismissed after Hunkin executed a promissory note in the amount of $328,958.93 on June 1, 1992 to reimburse ASB. On December 31, 1992, the June 1 note was replaced by a second promissory note in the amount of $409,708.00 to cover both the reimbursement amount and Hunkin/PDCS additional indebtedness to ASB.
The promissory notes were secured by two mortgages and the personal guarantees of Hunkin and his wife Amy Hunkin.1 The mortgaged property relates to two adjacent parcels within communal land known as “Mase'e” in Nuuuli. The first mortgage, executed on June 1, 1992, used the leasehold held by Hunkin and his wife on approximately 0.3673 acres of land and the improvements, consisting of the former Construction Services Ltd. (“CSL”) building and parking area, on the land (“Parcel 2”) as collateral for both the reimbursement and other indebtedness owed by Hunkin/PDC to ASB in the total amount of $408,858.40. The second mortgage, executed on December 31, 1992, used the leasehold held by Hunkin and his wife on approximately 0.2226 acres of land and the separated improvements, now consisting of Hunkin’s residence and a Chinese restaurant, on the land (“Parcel 1”) as additional collateral for Hunkin/PDC’s total indebtedness, then $409,708.00, to ASB.2 Thus, both the Parcel 1 and Parcel 2 properties *281secured the entire indebtedness as of December 31, 1992.
Hunkin’s second argument concerns the validity of the notes and mortgages, particularly those executed on June 1, 1992. Hunkin testified that his attorney in Pacific Reliant made the settlement with ASB in 1992 without Hunkin’s knowledge and consent. This is the same attorney, who now lives in Hawaii, that Hunkin wanted at first to represent him in this action. Hunkin asserted that he was surprised and shocked to leam of this settlement when ASB presented the promissory note and mortgage to him and his wife to sign on June 1, 1992. He stated that his attorney was then ill and not present. He claimed that the amount of the note was not revealed, that only the parcel 2 properties were then included as collateral, that the Parcel 1 properties were added later when ASB wanted more security, and that the attending ASB officials were extremely overbearing and forced him and his wife to sign the note and mortgage -under duress and undue influence. However, Hunkin admitted that he and his wife signed the various notes and mortgages in June and December of 1992, and there is no indication that, at any time, he sought his attorney’s assistance to undo these transactions. We find that Hunkin’s testimony on the forced nature of these transactions to be wholly unpersuasive. Moreover, even if we were to find Hunkin credible on this point, we would hold him estopped from litigating the issue at this late juncture.
After Hunkin defaulted on the promissory note of December 31, 1992, ASB foreclosed the two mortgages, as permitted by the mortgage terms. On March 30, 1998, when no bids were made at the foreclosure sale, ASB bought all of the mortgaged property for $411,175.77, the amount then owing on the note. ASB permitted Hunkin and his immediate family to remain living in the Parcel 1 residence. Then, on September 3, 1998, ASB sold its interests in the Parcel 1 properties (the land along with the separated residence and restaurant building) acquired by the foreclosure to Hunkin for $150,000. Payment was expected to be derived from rental funds generated by the Chinese restaurant and another tenant.
ASB attempted to sell its interests in the Parcel 2 properties acquired by the foreclosure. In 1998, Green Gold Enterprise, Inc. made an offer, which ASB viewed as unbankable. In 1999, Hunkin-Hoong International, Inc. expressed interest but made no offer. Later in 1999, Native Resources Developer, Inc. made two offers, but again ASB considered neither offer to be bankable. Hunkin was associated with each of these entities. In December 1999, ASB accepted the offer of B&B to purchase ASB’s interests in the Parcel 2 properties for $135,000. On February 7, 2000, ASB conveyed its interests in the Parcel 2 *282properties to B&B by warranty deed, agreeing to defend the title.3
The third and last theme of Hunkin’s defense is his perception that ASB has treated him and his family harshly and insensitively. He spoke in particular of ASB’s control over all financial aspects related to both the Parcel 1 and Parcel 2 properties, stripping him of all authority to manage the properties to meet his obligations to both repay ASB and support his family. We understand Hunkin’s injured pride and his antagonistic feelings towards ASB. However, the removal of his authority and injured psyche are not the issue. He dug himself into a deep financial hole with his PDC operations and has been unable to extricate himself from this serious predicament. Hunkin needs to understand and accept that ASB is exercising its rights arising out of this situation to make itself as whole as possible, and to realistically address his and his family’s precarious financial circumstances. B&B’s entry into the situation will likely ease Hunkin’s financial problems in the long run.
However, Hunkin reacted to the B&B transaction with a letter dated February 14, 2000 and hand-delivered to ASB’s president, advising ASB that Hunkin would prevent anyone from entering the CSL building on land included in the Parcel 2 properties. On or about the same date, Hunkin caused three 20-foot shipping containers to be placed on the parking area on the Parcel 2 land. The containers occupy a substantial part of eastern side of the parking area. B&B has secured prospective tenants for the CSL building, but cannot proceed with these leases without Hunkin’s assurances that he will not interfere with B&B’s interests in and use of the Parcel 2 properties, or without judicially-imposed injunctive protection of those interests and use.
An applicant is entitled to a permanent injunction if, after a full and final trial on the merits of the applicant’s claim, it is determined that “a judgment for money damages will inadequately remedy the complained *283of wrong.” A.S.C.A. § 43.1302. ASB lawfully obtained ownership of the mortgaged interests in the Parcel 2 properties, and B&B now owns ASB’s interests in those properties as ASB’s successor. ASB is obligated to defend its former and B&B’s present title to the Parcel 2 properties. Hunkin threatens to prevent B&B from exercising its ownership rights and continually trespasses by the presence of the containers on the Parcel 2 parking area. B&B has prudently refrained from confrontation with Hunkin but cannot peacefully proceed with its leases of the Parcel 2 properties. It could become necessary to cancel ASB’s sale of its interests in the Parcel 2 properties to B&B.
These facts clearly establish the criteria for issuance of a permanent injunction. ASB is entitled to protection of its interests in the acquisition and sale to B&B of the Parcel 2 properties. Money damages will not adequately provide that protection.
Order
1. Hunkin, his officers, agents servants, employees and attorneys and those persons in active concert or participation with them are enjoined from trespassing, including any entry without B&B’s consent, on or into the Parcel 2 properties (including the land, CSL building, and parking area) that ASB has transferred to B&B, or interfering with others’ access or use of the Parcel 2 properties, provided that: (1) Hunkin, the immediate members of his family, and their invitees may cross the Parcel 2 land solely for the purpose of ingress to and egress from Hunkin’s residence on Parcel 1 land to use and enjoy that residence, and subject to the terms and conditions of agreement with B&B, they may park their vehicles in the Parcel 2 parking area; and (2) the lessee of the restaurant and lessees of other premises on the Parcel 1 land, and the lessees’ business customers and other invitees, may cross the Parcel 2 land solely for the purpose of ingress to and egress from the restaurant and any other leased premises on the Parcel 1 land, and subject to the terms and conditions of agreement with B&B, they may park their vehicles in the Parcel 2 parking area. The activities permanently enjoined extend and apply to any organization that Hunkin owns manages, or controls, including but not limited to South Pacific Life, and to any invitees participating in such activities.
2. Hunkin shall remove, or cause to be removed, from the Parcel 2 land the three containers presently on the Parcel 2 parking area no later than April 26, 2000. If Hunkin fails to comply with this order, ASB may remove, or cause to be removed, the three containers at Hunkin’s expense.
3. ASB’s claim for damages and Hunkin’s counterclaim for damages are denied.
*284It s so ordered
Although the encumbrances were chronologically created in reverse order, we are retaining the same numerical identification used in the transaction documents in evidence, and in the order of March 7, 2000 issuing the preliminary injunction, for consistency and to avoid confusion.
On December 2, 1969, Hunkin’s wife acquired ownership of the building housing both the present residence and restaurant as her personal property for her residence by a separation agreement entered pursuant to A.S.C.A. §§ 37.1501-.1506. This agreement distinguishes the Parcel 1 properties from the Parcel 2 properties in that there is no agreement to separate the CSL building and parking area on the Parcel 2 land on the record before us. Thus it appears that the CSL building and parking area remain as real property without similar separation from the land as personal property.
We also note another distinctive feature, at least on the record in front of us, between the Parcel 1 and Parcel 2 properties. The Governor’s approval, required for leases of communal land by A.S.C.A § 37.0221, of the lease of the Parcel 1 land, if any was given, is not in evidence, while the Governor’s apparent approval is included with the lease of the Parcel 2 land and improvements.
The nature and extent of B&B’s interests in the Parcel 2 properties is not presently an issue before the court for decision. We point out, however, the limitations on B&B interests on the record before us. The lease of the Parcel 2 properties, including the land and its improvements, apparently approved by the Governor, is in evidence. No agreement to separate the CSL building and parking area from the land area included in the Parcel 2 properties is in evidence. On this basis, at least, the CSL building, parking lot, and any other improvements on the land included in the Parcel 2 properties are part of the communal land and B&B has only acquired ownership of the outstanding leasehold in the land and those improvements. See Sagapolutele v. Tala'i, 20 A.S.R.2d 16, 18 n.2 (Land & Titles Div. 1991); see generally Fagasoaia v. Fanene, 17 A.S.R.2d 91 (Land & Titles Div. 1990) and 18 A.S.R.2d 72 (Land & Titles Div. 1991). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486674/ | OPINION AND ORDER
The matai title “Galea'i” of the Village of Fitiuta in the Manu'a Islands became vacant when the incumbent Galea'i Peni Poumele passed away in 1992. On April 21, 1995, Claimant Tafua F.M. Seumanutafa (“Tafua”) offered to have the Territorial Registrar register the title in his name. The claim .was duly noticed, and 14 counterclaimants responded within the 60-day notice period. On November 10, 1997, pursuant to A.S.C.A. § 43.0302, the Secretary of Samoan Affairs issued a certificate of irreconcilable dispute. On February 2, 1998, in accordance with A.S.C.A. § 1.0409, the selection of the successor holder of the title was referred to this Court for judicial determination.
Ten of the counterclaimants dropped out of contention before trial, and their names have been deleted from the case caption. Counterclaimants Fa'amafi S. Utu Galea'i and Filiupu Galea'i (“Filiupu”) did not file the required questionnaire. Both have now passed away. Counterclaimants Ieremia O. Galea'i, Le'o V. Ma'o, Muaiao Mataese Tagaloa, Sala Mamea, Jr. (“Sala”), Siaosi L. Galea'i, Setu P. Galea'i (“Setu”), and Luce Tiuali'i Viena withdrew their candidacies. Counterclaimant Otto Tavita V. Haleck (“Otto”) filed the questionnaire shortly before trial but then also withdrew his candidacy.
The remaining five candidates, Tafua and counterclaimants Tuiavatele Alai'a Filiflli M. (“Tuiavatele”), Tagataclemanu Aba Tupua Lei (“Tagataolemanu”), Moaali'itele L.K. Tu'ufuli (“Moaali'itele”), and Eliu F. Paopao (“Paopao”) proceeded to trial. Trial began on February 14 and concluded on February 23, 2000. The five remaining candidates and their counsel were present throughout the trial.
Discussion
We adjudicate matai title successors based on evaluation of the evidence in support of the four criteria mandated by A.S.C.A. § 1.0409. We will discuss each criterion in the order of their statutory priority.
1. Best Hereditary Right
The traditional rule for judicial determination of hereditary rights mathematically measures candidates’ blood connection to a former titleholder. See In re Matai Title “Mulitauaopele”, 17 A.S.R.2d 75, 80 *286(Land & Titles Div. 1990). Tafua maintained that he is the great great grandson of Galea'i Ulutui, and by this relationship, he has a 1/16th right to the title under the traditional rule. Moaali'itele acknowledged that he has the same relationship to Galea'i Ulutui.
Tuiavatele claimed that he is the great grandson of Galea'i Lapi, also known as Galea'i Rapi or Makapi. Based on this connection, he would have a l/8th right to the title under the traditional rule. Tagateolemanu declared that he is. the great grandson of Galea'i Vili. Thus, his right to the title under the traditional rube would also be based on a l/8th connection to a titleholder. Paopao stated that he is the great great great grandson of Galea'i Sega, the same titleholder identified by Tafua and Moaali'itele. Thus, he has a l/32nd right to the title under the traditional rule.
The modem alternative rule looks at the number of generations candidates are removed from the original holder, or at least from a common ancestral holder, of the title. See In re Matai Title "Sotoa”, 2 A.S.R.2d 15, 15 (Land & Titles Div. 1984). The Sotoa rale may provide a fairer comparison of the relative strength of candidates’ blood relationships, especially when one or more clans have not had a titleholder for several generations. Application of the Sotoa rale, however, depends on evidence that identifies the original or another common ancestral titleholder and that traces blood relationships to this titleholder.
Tafua, Moaali'itele, and Paopao agreed that the original titleholder was Galea'i Lelologatele. They also agreed that Galea'i Vaimagalo was Lelologatele’s son and was next held the title. Tagataolemanu maintained that the first titleholder was Galea'i Vaimagalo. Tuiavatele claimed that Tuimanuatele first held the title and preceded Galea'i Vaimagalo and Gabea'i Lelologatele, who in that order were his fifth and sixth “Galea'i” titleholders.
Tafua and Moaali'itele traced their ancestry to Vaimagalo through eight and to Lelologatele through nine generations. Tuiavatele, Tagataolemanu, and Paopao did not, however, trace their lineages beyond the ancestral titleholder nearest to each of them. Moreover, Tuiavatele did not consider either Lelologatele or Vaimagalo to be the original titleholder, and the other four candidates did not recognize Tuimanutele as a titleholder. Thus, as a practical matter, we cannot apply the Sotoa rale in this case.
We take note, at this point, that Paopao listed only the two most recent “Galea'i” titleholders in his original questionnaire and provided a more complete list, except for leaving the third, fourth, and fifth holders blank, only in an amended questionnaire that was basically the same list *287provided earlier by Tafua in his first questionnaire. Similarly, Tagataolemanu provided a list of only the five most recent “Galea'i” titleholders, and named none of the seven and eight titleholders respectively listed by Tafua and Moaali'itele between Galea'i Vaimagalo and Galea'i Vili. Tuiavatele not only listed persons as his first four titleholders and his seventh titleholder not mentioned by any other candidate, but he also omitted four titleholders listed by Tafua and Moaali'itele between Galea'i Lifa and Galea'i Makapi (Galea'i Lapi or Rapi according to Tuiavatele). These factors raise considerable doubts about the knowledge of family history shown by Tuiavatele, Tagataolemanu, and Paopao and the depth of their research on this subject.
Resorting to literal application of the traditional rule, Tuiavatele and Tagataolemanu have, at l/8th each, the closest blood connection to a previous “Gabea'i” titleholder. Tafua and Moaali'itele are tied next with a l/16th relationship. Paopao has a l/32nd relationship. On this basis, both Tuiavatele and Tagataolemanu rank first with the best hereditary right to the title, Tafua and Moaali'itele come in second best, and Paopao is last.
We are persuaded by a preponderance of the evidence, however, that while Tafua and Moaali'itele established their hereditary rights to the “Galea'i” title with clear and convincing information, Tuiavatele, Tagataolemanu, and Paopao failed to satisfactorily show their respective asserted hereditary rights to the title because of their vague, incomplete, and uncertain knowledge concerning their family history. We therefore hold that Tafua and Moaali'itele, with their equal hereditary rights to the “Galea'i” title, prevail together over the other three candidates on the criterion of best hereditary right.
2. Wish of the Majority or Plurality of the Family Clans
All candidates agreed that the Galea'i family has two clans, one called Tutu and the other Pulenu'utu. The candidates disagreed on the identity of the original titleholder and, therefore, on the identity of the first titleholder’s children, a common customary basis for clan identity among Samoan families. Clan membership in the Galea'i family, however, is not based on descendence from the original titleholder’s children. The origin of the two Galea'i clans is not clear from the evidence, but it is clear that for a very bong time, if not time immemorial, the family has had only the Tutu and Pulenu'utu clans. Thus, a candidate must have the support of both clans to prevail on this criterion.
Clearly, each of the five remaining candidates has support among individual members of both family clans to be the next holder of the *288“Galea'i” title. It is also clear that each clan met separately on various occasions to discuss the clan’s choice for the successor to the title. The Pulenu'utu clan was apparently inclined to endorse either Moaali'itele or Otto, one of the withdrawn candidates. The Tutu clan apparently prepared to support Setu, who has also now withdrawn and is the last titleholder Galea'i Peni Poumele’s son. Beginning after the first anniversary of Galea'i Peni Poumele’s death, both clans met as an extended family on four occasions to discuss the matter of and select the next “Galea'i” titleholder. The four meetings were held at the Tutu clan’s traditional guesthouse in Fitiuta, two before and two after Tafua filed his claim to the title with the Territorial Registrar on April 21, 1995. The first meeting took place in October 1993, the second in January 1994, the third in 1995 shortly after Tafua claimed the title, and the fourth on October 25, 1997.
The holder of matai title “Filiupu” in the Galea'i family is the traditional fetalaiga samatua to the “Galea'i” title responsible for calling the extended Galea'i family’s meetings to select a successor “Galea'i” titleholder. However, Filiupu lived off-island at the time of the first three meetings. As a result, Tafua, after consulting with Moaali'itele and other family matai, issued the notices of the first two meetings. It is not entirely clear from the evidence who issued the notice of the third meeting. However, Filiupu issued the notice of the fourth meeting. The notices were disseminated by radio broadcasts and word of mouth.
Tafua attended the first three extended family meetings. He was not present but had supporters at the last meeting. Tuiavatele and Tagataolemanu did not attend any of the four meetings, but they had supporters at these meetings. Moaali'itele was present at all four meetings. Paopao attended only the third meeting. However, he too had supporters at the fourth meeting.
The ultimate decision at the first two meeting was to put the selection of the next “Galea'i” titleholder over for discussion and decision at a later meeting. The participants, representing both clans, discussed the purpose of the meeting, but no one was nominated for the title at either meeting. At the .third meeting, the Tutu clan’s representative matai nominated Setu, the last titleholder’s son. However, the Pulenu'utu clan still did not put forward a candidate, and once again the selection was reserved for another meeting.
At the fourth meeting, on October 25, 1997, both Moaali'itele and Otto were nominated by Pulenu'utu clan members. All of the present and former candidates were either present or represented by supporters. Numerous attendees spoke. Former candidate Sala then withdrew and supported Moaali'itele. Except for Setu, the other six former candidates, all present at this meeting, also withdrew in Moaali'itele’s favor. Setu’s *289sister, on his behalf, withdrew his candidacy. The Pubenu'utu clan’s representative matai then asserted his clan’s decision to support Moaali'itele rather than Otto. This set the stage for the traditional ava cup ceremony denoting the next titleholder’s selection. Filiupu notified the Fitiuta village council of the decision at this meeting, and after the council assembled, those present administered the ava cup to Moaali'itele.
The presently remaining candidates, other than Moaali'itele, were not at the fourth meeting and hence did not personally participate in the decision on October 25, 1997 to select Moaali'itele. Accordingly, they have exercised their right to persist in their respective candidacies. However, we find that by consensus at a properly constituted family meeting, the two clans of the extended Galea' i family, Tutu and Pulenu'utu, selected Moaali'itele to be next holder of the “Galea'i” title. Therefore, we conclude that Moaali'itele prevails over Tafua, Tuiavatele, Tagataolemanu, and Paopao on this criteria.
3. Forcefulness, Character and Personality, and Knowledge of Samoan Customs
Each of the five candidates received his elementary school education in American Samoa and is a graduate from high school either here or outside of the Territory. Each has also benefitted from education or training beyond high school. Three of them, Tafua, Moaali'itele, and Paopao have earned college degrees. In sum, the candidates are a well-educated group.
Tafua has pursued a successful career as an educator, administrator, and small businessman. He is presently a special assistant to the Governor assigned to manage the Country Club at the public golf course operated by the American Samoa Government (“ASG”). Tuiavatele was a professional boxer earlier in his life and has held various jobs encompassing included administrative experience, as well as owning small businesses. Tagataolemanu retired after a military career and has remained active in both the private and public sectors. He is presently employed in ASG’s Tax Office. Moaali'itele also has had military, teaching and business experience, along with a lengthy public safety career, which included holding the position of ASG’s Commissioner of Public Safety. For the past several years, he has been a Senator in and is now the President Pro Tem of the Senate of the Legislature of American Samoa. Paopao was also a teacher, was an auditor for a private firm, operates a small business, and has had a lengthy career in ASG administrative positions. He is presently ASG’s Director of Administrative Services. Each of the candidates has had and continues *290to have a distinguished career.4
Tafua, Moaali'itele, and Paopao, especially, have been active on various ASG boards and commissions, and have undertaken important special assignments and activities for ASG’s benefit from time to time. Each of the candidates resides in a village on the Island of Tutuila rather than in Fitiuta. Tuiavatele, Tagataobemanu, Moaali'itele, and Paopao, in particular, participate in the affairs of their residential villages on Tutuila. However, they, along with Tafua, remain involved in Fitiuta affairs, including tautua (“service”) to the village council. Similarly, each candidate takes ardent part in worship and other matters pertaining to the church he attends on Tutuila. Tafua, Moaali'itele, and Paopao are also strong supporters of the Congregational Christian Church of American Samoa in Fitiuta.
Even though each candidate holds a matai title in a family other than the Galea'i family, each also partakes in the Galea'i family’s affairs. Since Tafua and Moaali'itele hold titles in the Moaali'itele family of Fitiuta, interacting -with the Galea'i family in Fitiuta affairs, they are probably somewhat more regularly active in the Galea'i family’s affairs. This may explain their more complete and certain knowledge of the family’s history. In any event, because of a lifetime of cultural involvement, each candidate is well-versed in Samoan customs.
In terms of the third criterion, we find that all of the candidates possess the characteristics of a good family leader. However, based on demeanor as well as testimony, we further find that Moaali'itele is more forceful than the other four candidates. We hold that Moaali'itele has the advantage and, accordingly, prevails over the other four candidates on the criterion of forcefulness, character, personality, and knowledge of Samoan customs.
4. Value to Family, Village and Country
Based on their respective personal histories, we find that all of the candidates have admirably served the Galea'i family, Village of Fitiuta, and Territory of American Samoa. We have no doubt that each candidate would bring credible and worthy service to the family, village, and Territory as the next holder of the “Galea'i” title. Again, however, Moaali'itele stands out, based on his high-level service in ASG and as the holder of the sa'o (“senior chief’) title of the Moaali'itele family of Fitiuta for over 30 years. We conclude, therefore, that Moaali'itele also *291prevails over the other four candidates on the criterion of prospective value to family, village, and country.
Conclusion
Tafua and Moaali'itele are equally entitled by hereditary right to the “Galea'i” title and prevail over Tuiavatele, Tagataolemanu, and Paopao on this highest priority criterion for judicial selection of a successor titleholder. Moaali'itele prevails over Tafua and the other three candidates on the other three criteria: majority clan wish; leadership qualities and knowledge of Samoan custom; and prospective service value. We therefore will award the “Galea'i” title to Moaali'itele.
Order
The “Galea'i” title is awarded to Moaali'itele L.K. Tu'ufuli. The Territorial Registrar shall register the “Galea'i” title in Moaali'itele’s name, provided that he has resigned from and is not holding any other registered title.
It is so ordered.
Evidence involving possible violations of laws, though not prosecuted to date, was submitted during, the course of the trial. We considered this evidence, but only as unproven allegations, in analyzing and reaching our findings and conclusions on the third and fourth criteria. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486675/ | OPINION AND ORDER
Plaintiff Tiumalu Sia Scanlan (“Tiumalu”), as the sa 'o (senior chief) of the Tiumalu family of Fagatogo, brought three actions for eviction from *293buildings located on Tiumalu family communal land known as Poata and for breach of lease agreements for failure to pay rent. Each defendant occupies Tiumalu communal property and has used it for commercial benefit. These actions were originally filed as summary eviction proceedings under A.S.C.A. §§ 43.1401-.1416 in CA No. 19-99, CA No. 20-99, and CA No. 21-99. However, they were transferred to the Land and Titles Division because they involve intra-family issues germane to the communal status of the land. Trial was held jointly in these three matters on March 9-17, 2000.
I. The Leases Underlying Each Action
Tiumalu is suing defendant Solomona Glen Levi (“Levi”), a member of the Tiumalu family, in LT No. 12-99. Tiumalu and Levi agreed to a three-year lease on premises located between the Pago Bar building and TK Spencer’s, Inc. to commence on June 1, 1997, with a monthly rental of $200.00. The lease permits Levi to sublet the premises for the term of the lease, and on or about May 28, 1998, he subleased the premises to Mee Won, Inc., with a monthly rental of $850.00. However, the sublease extends through December 31, 2002, well beyond the lease term. Levi has never paid rent to Tiumalu, and his sublessee continues to occupy the premises.
The facts in LT No. 13-99 are very similar. The defendant in this case is Faleiva Fa'amao Tiumalu (“Faleiva”) another member of the Tiumalu family. Tiumalu and Faleiva entered into a lease for premises known as the Pago Bar building (or the Shimasaki building) for a term of three years beginning on January 1, 1997, with a rental of $1,000 per month. This lease also permits subleasing for the term of the lease, and on or about December 20, 1999, Faleiva subleased the premises to Kuo Yen Chen dba MAKRO, with a monthly rent of $2,500. However, this sublease was for term of 10 years, far beyond the lease period. Faleiva has not paid rent to Tiumalu, and her sublessee presently occupies the premises.
In LT No. 14-99, Tiumalu is suing defendants Suiava Alamoana Mulitauaopele (“Alamoana”), also a member of the Tiumalu family, Lisa Mulitauaopele (jointly “the Mulitauaopeles) and Alamoana Recipe, Inc. (“Recipe”). This action is based on a 20-year lease agreement between Tiumalu and the Mulitauaopeles for a portion of the structure known as the Kneubuhi building. The Mulitauaopeles are primary owners of Recipe, and Recipe operates a business on the premises. Tiumalu seeks to evict the Mulitauaopeles and Recipe from the leased area, and recover back rent from the Mulitauaopeles from December 1, 1988, the beginning of the lease period, to the present.
*294II. The Subject Matter of Each Lease: Building or Land
Tiumalu and the defendants disagree as to whether the leases include only improvements or include the land as well. The leased property is described in each of Levi’s and Faleiva’s leases as a “one story building . . . located on Tiumalu communal land known as POATA . . . .” The Mulitauaopeles’ lease describes the property at issue as “[t]he extension to the eastern side of the building located on the commonly known as the Kneubuhl Building located on the real property known as ‘POATA’ . . . .” The leases unequivocally state that the buildings, not the land, are the properties to be leased. It does not matter whether the defendants subjectively understood the leases to be for the land as well as the buildings or portions of a building, because the contracts are clear, making their beliefs unreasonable and without legal force.
Because the leases are for the buildings or portions of a building, they are not subject to the requirement that leases of communal land be approved by the Governor. See A.S.C.A. § 37.0221. As such, they are not invalidated because the Governor’s approval was not obtained.
HI. The Right to Lease Premises
Faleiva, the Mulitauaopeles, and Recipe argue that Tiumalu has no right to enforce the leases. According to defendants, the Tiumalu family gave up its right to income from the leased properties when it allowed members of the family to individually retain income from leases in a 1926 agreement. This issue was decided over 40 years ago. The 1926 agreement allowed certain family members to retain the profits from then-existing leases. One lease was with Frank Shimasaki, who leased the same building at issue in Faleiva’s lease, and another was with B.F. Kneubuhl, who leased the building at issue in the Mulitauaopeles’ lease. The 1926 agreement only allowed the money from leases existing at that time to be divided, while ownership was to remain with the matai of the Tiumalu family. Haleck v. Taimane, 3 A.S.R. 380, 385 (Trial Div. 1959). The land and the buildings on the land, along with the right to profit from buildings after the termination of the leases existing at the time of the 1926 agreement, therefore belong to the Tiumalu family.
The buildings have not been the subject of separation agreements, which would allow separate ownership of the building and the land. See A.S.C.A. § 37.1501-.1506. Structures that have not been separated from land are considered part of the land. Scanlan v. B.F. Kneubuhl, Inc., LT No. 47-83, slip op. at 4 (Land & Titles Div. Aug. 17, 1983) (citing Van Ness v. Pacard, 27 U.S. 137, 143 (1829)). The Tiumalu family therefore owns the buildings, and Tiumalu has the right to lease them.
*295IV. Rent or Tautua
A. Levi and Faleiva
While Levi and Paleiva possibly could have used the land and provide tautua (traditional service to the family) rather than make rent payments under a lease if the family had agreed to it, Levi and Faleiva agreed to pay rent for the right to use their respective buildings, including the right to sublease the buildings to a third party. Levi and Faleiva are thus obligated to pay rent even though they are members of the Tiumalu family.
Tiumalu is not estopped from asserting the family’s right to the rent payments. Levi and Faleiva are still responsible for paying for their leases despite Tiumalu’s failure to insist on timely payment. See Hunkin v. Grisard (Hem.), 13 A.S.R.2d 38, 40 (Trial Div. 1989). Estoppel may generally only arise from silence when the other party has a duty to speak. Heuer v. Heuer, 704 A.2d 913, 919 (N.J. 1998); Huff v. N. Pac. Ry. Co., 228 P.2d 121, 126 (Wash. 1951). Levi and Faleiva have failed to show that Tiumalu had a duty to demand payment and that she should be equitably estopped from pursuing her claim. By failing to pay rent on the leased buildings, Levi and Faleiva have materially breached their leases.
B. The Mulitauaopeles and Recipe
Like Levi and Faleiva, the Mulitauaopeles argue that they occupy the building as a traditional assignment from the sa'o in return for tautua rather than occupying the premises under the lease. They assert that Tiumalu agreed not to enforce the lease as long as Alamoana provided tautua. As evidence, they submitted a 1992 letter written by Alamoana, asking Tiumalu, as the sa 'o, to allow them to render tautua rather than pay rent. They also state that Tiumalu only twice requested payment in the more than 11 years they have occupied the building, arguing that acceptance of tautua in lieu of rent is consistent with this fact.
The parties have not agreed to modify the lease to allow the Mulitauaopeles or Recipe to occupy the land in exchange for tautua rather than rent payments. Tiumalu stated that she agreed only to consider the Mulitauaopeles’ request to replace the lease with tautua. One party cannot unilaterally modify a contract, and we have insufficient evidence from which to find that Tiumalu agreed to a modification.1
*296The Mulitauaopeles admit that they have not paid rent under the lease. This failure is a material breach of the lease. They also breached the lease in other ways. The lease specifically states that they “shall not assign or sublet the leased premises or any part thereof for all or any part of the term of this lease without the written consent and approval of the Lessor.” Nonetheless, the Mulitauaopeles allowed others to use the building for profit.2 They allowed Recipe, their business though a separate legal entity, to use the premises in violation of the provision not to assign or sublet the premises without Tiumalu’s consent. In addition, Recipe entered into an agreement with Lin Ta-Li and ShihKai Lin for the Lins to run Recipe. While the agreement is styled as a contract to hire managers, the Lins pay fees to Alamoana, indicating that the agreement is an assignment or sublease in violation of the Mulitauaopeles’ lease with Tiumalu. There is no express evidence that Tiumalu permitted either Recipe or the Lins to occupy and use the premises.
V. Remedies
A. Eviction
Although defendants were not justified in failing to pay their rent, Tiumalu’s failure to demand immediate payment of rent when defendants did not pay on their leases justifies their treating time of lease payments as not of the essence. Hunkin, 13 A.S.R.2d at 40 (immediate eviction denied when payment not required for several years). Immediate eviction on the ground of failure to pay rent is inappropriate in this case. However, there are other grounds on which Tiumalu is entitled to eviction.
*297Levi’s lease began on June 1, 1997. The lease is listed as a three-year lease. It gives Levi the right to lease the premises for three years from June 1, 1997, but it also states that the term should be computed through January 1, 2000. It is therefore unclear whether the lease expired on January 1, 2000 or whether it will expire on May 31, 2000. However, determination of this issue is unnecessary because of the proximity of the present date to the later expiration date. As of June 1, 2000, Levi will no longer have permission to remain on the premises. We therefore grant Tiumalu’s request for eviction, effective on June 1, 2000. Faleiva’s three-year lease, which began on January 1, 1997, has expired. Faleiva does not have permission to remain on the premises and thus is not entitled to remain there. We therefore grant Tiumalu’s request for eviction of Faleiva.
The Mulitauaopeles, as noted above, breached their lease by failing to obtain Tiumalu’s written permission to assign or sublet the premises. We therefore grant Tiumalu’s request for eviction of the Mulitauaopeles. Because the Mulitauaopeles no longer have a right to remain on the premises, Recipe, having no separate lease, also has no right to remain there.3
B. Monetary Damages for Breach of Contract
Tiumalu also seeks monetary damages. She first seeks restitution as an equitable remedy based on unjust enrichment in the amount of the *298rent defendants made by subleasing the property. Tiumalu has cited no compelling law in support of her claim for equitable damages under the facts of these cases, simple breaches of contract, and has not explained why compensatory damages are inadequate. The traditional remedy for breach of contract is compensatory damages, generally described as returning the parties to the position they would have held had a breach not occurred.
Good-faith improvers are entitled to reimbursement for their actual expenses in improving property or for the amount by which the improvements enhance the value of the property, whichever is less. Lutu v. Semeatu, 17 A.S.R.2d 18, 19 (land & Titles Div. 1990); Tulisua v. Olo, 8 A.S.R.2d 169, 172 (App. Div. 1988). When a landlord allows a tenant to improve property, as here, it would be inequitable for the owner to deny compensation while the owner receives the benefits. See Fealofa’i v. Reid, 14 A.S.R.2d 57, 60 (Trial Div. 1990).
There is little question that Tiumalu implicitly, if not expressly, agreed to the building improvements. Building improvements were necessary for Levi and the Mulitauaopeles to use the buildings for commercial purposes as contemplated in their leases. Furthermore, the location of the buildings and the fact that the improvements were made by the Tiumalu family members make it very likely that Tiumalu knew about the improvements and at least acquiesced to them. Tiumalu is therefore entitled to the rental payments owed by defendants, less the value of improvements made to the buildings.
The total rent owed by Levi through May 2000 is $7,000. Levi submitted evidence that he spent from $29,400 to $31,950 on improvements, which included $14,400 for night security during the work period. In any event, his expenditures on improvements substantially exceeded the rental amount due to Tiumalu. Levi, therefore, does not owe any rent to Tiumalu.
Tiumalu is entitled to the $1,000 monthly rent Faleiva agreed to pay for a term of three years beginning on January 1, 1997, plus rent for the months she has held over beyond the lease period. The amount owed through May 2000 totals $42,000. Faleiva did not present evidence on improvements, and Tiumalu is therefore entitled to recover $42,000 from her.
Tiumalu seeks monetary damages against the Mulitauaopeles in the amount of $1,500 monthly from December 1, 1988 to the present. However, the statute of limitations on contract actions is 10 years. A.S.C.A. § 43.0120. This action was filed on March 18, 1999. Rent due more than 10 years before this date is barred by the statute of limitations. Rent owing from March 18, 1989 through May 2000 totals $201,650.
*299The Mulitauaopeles calculated that they made improvements of $65,000 to $75,000 to the building structure and $25,000 to the building interior. While the Mulitauaopeles may have expended $90,000 to $100,000 in building improvements, we believe this amount is substantially overstated. We have no itemized list of expenses incurred by the Mulitauaopeles and little information from which to determine a reasonable amount. We must nonetheless make what we believe to be a fair estimate of the value of the improvements, and on this basis estimate this amount at $75,000. Tiumalu is therefore entitled to recover $126,650 from the Mulitauaopeles.
Orders
1. Eviction is granted as to Levi, effective June 1, 2000.
2. Eviction is granted as to Faleiva, the Mulitauaopeles, and Recipe, effective immediately.
3. Damages are denied as to Levi.
4. Faleiva shall pay to Tiumalu damages in the amount of $42,000. This amount shall be payable in installments of $1,400 per month for 30 months, commencing with July 2000.
5. The Mulitauaopeles shall pay to Tiumalu damages in the amount of $126,650. This amount shall be payable in 60 monthly installments, commencing with July 2000. They shall pay 59 monthly installments of $2,111 and a final installment of $2,101 in the sixtieth month.
It is so ordered.
On March 17, 2000, Tiumalu’s counsel filed a “Memo and Brief as To Modification of Contracts” in LT No. 14-99. This memorandum on modification, except for an introduction and conclusion, consists entirely of text from 17 Am Jur.2d Contracts § 520 (1985). Nowhere, however, *296does counsel cite American Jurisprudence. In doing so, counsel has plagiarized, passing off research and writing by the authors of American Jurisprudence as his own. He has also included all of the citations from the same part of American Jurisprudence. As these citations are quite lengthy and improperly cited, counsel has almost undoubtedly failed to read and verify these cases as supporting his position.
The conduct of attorneys is governed by the American Bar Association Model Rules of Professional Responsibility (“Model Rules”). H.C.R. 104. It is professional misconduct for a lawyer to engage in conduct involving dishonesty or misprepresentation. Model Rule 8.4(c). Failure to abide by the Model Rules constitutes grounds for discipline under H.C.R. 155.
A lease between Recipe and Peacock Partners Pacifica Ltd., commencing September 11, 1988, appears to have been in place when the lease with Tiumalu became effective. It is unclear whether this sublease violated the Multitauaopeles’ lease with Tiumalu since it predated the lease at issue.
Other arguments by Tiumalu’s counsel for Recipe’s eviction are not well taken. Counsel asserts that Recipe is a trespasser on the premises, and that an order by the Court compelling discovery under T.C.R.C.P. 37 precludes any denial by the Mulitauaopeles and Recipe that Recipe came onto the premises by trespass. The Court’s order of February 24, 2000 does not preclude such a denial, and specifically excluded Tiumalu’s proposed ruling that facts alleged in her requested admissions are deemed admitted. Recipe is not a trespasser because it had permission from the Mulitauaopeles, as lessees, to occupy the premises.
Under Model Rule 3.3(a), every attorney has a duty of candor, including the duty not to knowingly make false statements of material fact to the court. By asserting that the Mulitatuaopeles and Recipe were precluded from denying that they were trespassers, counsel either failed to read and understand the Court’s order or attempted to intentionally mislead the court. The Court cannot properly function unless attorneys make reasonably diligent inquiry into the truth of the facts they assert. The Court will not tolerate misstatements of its decisions.
We have not requested an investigation into this matter, pursuant to H.C.R. 158, but in light of the two possible violations noted in this Opinion and Order, we will not hesitate to do so if we see misconduct in the future. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486676/ | OPINION AND ORDER
At issue in these consolidated actions is the ownership of substantially overlapping parcels of land, known as “Saufelo” or “Saofelo,” located in the Village of Fagasa, American Samoa (“the overlapping land”). Defendants/objectors claim on behalf of the Alo Su'esu'emanogi Family (“the Alo Su'usu'e Family”) an area of approximately 2.9 acres. Plaintiffs/Claimants Tupuola Family (“the Tupuola Family”) claim an *301area of approximately 5.22 acres that almost entirely encompasses the Alo Su'usu'e Family’s claim.
Procedural History
On December 12, 1993, Tupuola Petelo, then the sa'o (“senior chief’) having pule (“authority”) over the Tupuola Family’s communal lands in this area of Fagasa, filed an action, LT No. 42-93, against defendants Su'esu'emanogi Williams and Mary Keleti to quiet title to the overlapping land in the Tupuola Family’s name and to permanently enjoin these individual defendants from continuing to construct a house and from trespassing on the land. On January 11, 1994, the court dismissed LT No. 42-93 without prejudice, upon Tupuola Petelo’s motion stating that the parties had settled their differences.
The settlement was short-lived. On January 26, 1994, Tupuola Petelo filed a second action, LT No. 07-94, for the same remedies sought in LT No. 42-93. On February 4, 1994, the court directed each side in LT No. 07-94 to survey their claimed land and not to interfere with the other side’s survey.
The Tupuola Family conducted its initial survey of approximately 2.322 acres in March 1994. This survey roughly coincides with the Alo Su'esu'e Family’s presently claimed area. On March 30, 1994, Tupuola Petelo offered to register the 2.322 acres as the Tupuola Family’s communal land. The offer was duly noticed, and the objectors in LT No. 12-95 timely objected to the registration. The Alo Su'esu'e Family completed its survey of approximately 2.819 acres in December 1994. The Tupuola Family’s final survey of approximately 5.22 acres was done in July 1997.
On January 9, 1995, the Territorial Registrar referred the dispute over the offer to register the 2.322 acres to the Secretary of Samoan Affairs. After the dispute resolution proceedings failed, the Deputy Secretary of Samoan Affairs issued a certificate of irreconcilable dispute on March 10, 1995. On March 15, 1995, the Territorial Register directed the controversy to this Court for judicial resolution. This referral became LTNo. 12-95.
On March 16, 1995, Tupuola Petelo moved to consolidate the two actions. The court consolidated the two actions on April 27, 1995. The two cases then remained dormant until October 10, 1999 when the Tupuola Family’s present counsel moved to schedule the trial. Defendants/objectors appeared at the trial setting on November 23, 1999, but they no longer had counsel. The Court advised them to obtain counsel and set the trial on March 23, 2000. However, defendants/objectors’ present attorney did not become counsel of record *302until March 13, 2000. The trial was then continued to April 11 to allow counsel more preparation time and defendant Su'esu'emanogi Williams to attend to his ill mother off-island, and then to April 25 due to the death of Williams’ mother. On April 25, defendants/objectors asked for a further continuance of the trial to attempt to settle the controversy. However, we denied the motion in view of the long dormancy and unsuccessful attempts to reach a settlement of these actions. The trial was held on April 25 and 26,2000.
While these actions were pending, Tupuola Petelo passed away. This event may have contributed to the lack of settlement progress. The overseas presence of key persons in both families at times and apparent confrontational attitudes, including threatened violence, exhibited by members of the Alo Su'esu'e Family towards members of the Tupuola Famly at various times during the course of these proceedings may have been factors as well. In any event, the death was first indicated on the record of these proceedings in the affidavit of Tupuola Satete, the sa 'o replacing Tupuola Petelo, dated April 19, 2000, filed in support of his motion for sanctions for causing delays of the trial, costs, and attorney’s fees.1 On April 25, 2000, defendants/objectors suggested, in chambers before the trial, that lack of formal substitution of a party for Tupuola Petelo was an additional reason to continue the trial. However, we granted the Tupuola Family’s oral motion, under T.C.R.C.P. 25, to substitute Tupuola Satete, the present sa 'o, as a party in place of Tupuola Petelo.2 The case captions have been modified accordingly.
Discussion
As between the Tupuola Family and the Alo Su'esu'e Family, the Tupuola Family owns as its communal land the 5.22 acres within its 1977 survey, plus the small areas at the east end included in the Alo Su'esu'e Family’s survey but outside the Tupuola Family’s survey, and the very small area along the south boundary of the Tupuola Family’s survey outside of the other two surveys. This ultimate fact is abundantly clear under the evidence.
The Tupuola Family’s claim that they have occupied and used the entire area surveyed since before 1900 is credible. The Alo Su'esu'e Family’s *303claim that they have possessed the overlapping land since time immemorial is not believable. The Village of Fagasa is traditionally divided into two sub-villages, named “Fagalea” and “Fágatele.” The highest pule (“authority”) in Fagalea is the sa 'o of the extended Alo Family. The highest pule in Fágatele is the sa 'o of the extended Tupuola Family. The area surveyed is in Fágatele.
Defendants/objectors are members of the extended Alo Family who resided in or whose ancestors resided in Fagalea in times past. Many years ago, a Tupuola lady married Alo Taisi of the Alo Family. The Tupuola titleholder at that time permitted Alo Taisi to live on the overlapping land, but he eventually left the land. Years later, after obtaining his title in 1939, Alo Pepe of the Alo Family needed land as a source of food. The Tupuola titleholder at that time permitted Alo Pepe to plant on and to harvest crops from the overlapping land. Though they farmed the land, neither Alo Pepe, nor any member of his family lived on the land. When Alo Pepe died, his family withdrew from the land. Still later, in 1967 or 1968, Tupuola Ioane permitted Alo Williams Steffany, also known as Alo Su'esu'e Steffany, of the Alo Family to live on the overlapping land. This event led, in due course, to the current residency of members of the Alo Su'esu'e Family on the land.
Defendants/objectors presented documentation of several separation agreements and building permits that facilitated the construction of buildings on the overlapping land. Four structures of the Alo Su'esu'e Family’s members are actually partially outside the Alo Su'esu'e Family’s claimed area of 2.819 acres and within the Tupuola Family’s claimed 5.22 acre area. We cannot determine under the evidence whether a Tupuola sa 'o consented to the construction of any of the Ala Su'esu'e Family’s structures. There is evidence of the sa'o’s objection to some of them. However, whether there was consent, objection, or even no action, the documentary evidence is unpersuasive in support of the Alo Su'esu'e Family’s title claim. This evidence only serves to show, rather convincingly, that Tupuola sa 'os neglected to vigorously protect their family’s communal land interests.
We expressly point out one further significant detail in support of our finding that the Tupola Family holds the title to the land at issue. There is a graveyard within the 5.22 acre area surveyed by the Tupuola Family where only members of that family are buried. There are no graves of members of either family within the 2.819 acres surveyed by the Alo Su'esu'e Family. The Alo Su'esu'e Family planned only one burial of family member in their claimed area. However, when Tupuola Petelo objected, the Alo Su'esu'e Family buried the deceased family member elsewhere.
We conclude that, as between the Tupuola Family and the Alo Su'esu'e *304Family, the 5.22 acres within the Tupuola Family’s 1997 survey, plus the small parcels at the east end within the Alo Su'esu'e Family’s survey but outside the Tupuola Family’s survey, and the very small area along the south side within the Tupuola Family’s 1994 survey of 2.372 acres but outside of their 1997 survey and the Alo Su'esu'e Family’s 1994 survey, are the Tupuola Family’s communal land. The presence of members of the Alo Family and Alo Su'esu'e Family on the overlapping land dining several periods, however extended, was and is solely with the permission of the Tupuola Family’s sa'o. Accordingly, defendants/objectors are entitled to remain and to construct any building or other improvements on the overlapping land only so long as they have the permission of the Tupuola Family’s sa 'o. If the permission granted to live on and use the land is terminated, members of the Alo Su'esu'e Family will be present on the land at the sufferance of the Tupuola Family’s sa 'o and subject to eviction. We further conclude that, as between the Tupuola Family and the world, the 2.372 acre area, as delineated in the Tupuola Family’s 1994 survey and duly processed for registration, is properly registered as the Tupuola Family’s communal land.
Because of the irreparable harm and inadequacy of monetary damages, members of the Alo Su'esu'e Family should be permanently enjoined from present or future construction of any buildings and other improvements, or from engaging in any other activities, on the overlapping land without first obtaining the permission of the Tupuola Family’s sa ’o, and from engaging in any acts of violence or threats of violence against membérs of the Tupuola Family. If members of the Alo Su'esu'e Family continue to live on and otherwise use the land, with the permission of the Tupuola Family’s sa ’o, they must do so peacefully and harmoniously with members of the Tupuola Family.
Order
1. Title to the overlapping land, plus the small parcels within the Alo Su'esu'e Family’s survey but outside the Tupuola Family’s 1997 survey, is quieted as the Tupuola family’s communal land.
2. The Territorial .Registrar shall register the 2.322 acre area within the Tupuola Family’s 1994 survey as the Tupuola Family’s communal land.
3. Defendants/objectors, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are permanently enjoined (a) from present or future construction of any buildings or improvements, or from engaging in any other activities, on the land quieted without first obtaining the permission of the Tupuola Family’s sa'o; and (b) from engaging in any acts of violence or threatening violence against members of the Tupuola Family.
*305It is so ordered.
Following the trial, the parties stipulated to continue the hearing on this motion to a later date, and on May 16, 2000, the Court ordered that the hearing on the motion was off-calendar to be rescheduled on the Court’s or a party’s motion.
Tupuola Satete commissioned the 5.22 acre survey in July 1997. The defendants/objectors were aware of his authority as the sa 'o of the Tupuola Family for at least this long, a period of almost three years. They were not prejudiced in any manner by the substitution of parties. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486677/ | Opinion and Order
Defendant American Samoa Power Authority (“ASPA”) entered agreements with defendant Tautolo Gaosa (“Tautolo”) to lease water well and waste disposal sites on land called “Agaoleatu” on the Island of Aunu'u, American Samoa (“the land at issue”). Both sites are within the land at issue. The well site on a parcel identified as “Saofaga” is within the larger land at issue. Tautolo is the sa'o (“senior chief’) of the Tautolo family. Plaintiff Faumuina Suafa'i Satele (“Faumuina”) is the *306sa 'o of the Faumuina family.
In 1995, however, because the Faumuina sa'o title was vacant, two groups of Faumuina family members separately filed these actions to gain recognition that the leased land was the Faumuina family’s communal land and obtain appropriate injunctive and other relief. Pursuant to A.S.C.A. § 43.0302, the issues were mediated unsuccessfully at the Office of the Secretary of Samoan Affairs, and jurisdictional certificates of irreconcilable dispute were duly issued and filed in both cases. On July 23, 1998, after Faumuina was invested with the Faumuina title, he was substituted as the proper plaintiff under A.S.C.A. § 43.1309. The two cases were consolidated the same day.
On June 1, 1998, the Court ordered Faumuina and Tautolo to survey their respective communal land claims and offer the surveys for title registration, and enjoined each family from interfering with the other family’s survey. Faumuina obtained a survey of approximately 6.301 acres that encompassed the well site but not the disposal site. On December 4, 1998, he initiated the title registration process for the surveyed land. The registration offer was duly noticed and Tautolo objected to the registration. On April 27, 2000, after the registration process was concluded with issuance of another certificate of irreconcilable dispute, the dispute was referred to the Court for judicial resolution and made a part of the two pending actions. Tautolo also obtained a survey. His survey, however, included approximately 23.333 acres that encompassed both the well and disposal sites, and essentially all of Faumuina’s surveyed land. Tautolo has not, however, formally offered his surveyed land for registration.
Trial was held on July 13 and 14, 2000. Both parties and their counsel were present.
Discussion
Members of both the Tautolo family and the Fa'i family have lived on, cultivated, and otherwise shared use of the land at issue for many years. The Fa'i family. has blood relationships with, and the Fa'i matai (“chief’) title is a lesser title of, the Faumuina family. The Fa'i family is not, however, blood connected with the Tautolo family. Nonetheless, for the most part, this arrangement for sharing the land at issue has worked peacefully and harmoniously.
The Tautolo title is clearly appurtenant to the Village of Aunu'u. This connection has existed continuously on record since the territory’s system of registering matai titles began in 1906. The Tautolo family owns communal lands on the Island of Aunu'u. The reigning holder of the Tautolo title, as the sa'o and on behalf of the family, has the pule *307(“power of control”) over those lands. The Tautolo fale talimalo (“guest house”) is on the land at issue. As the sa'o of the Tautolo family, the Tautolo titleholder is a member of the Village Council and is recognized in the Village salutation. He renders monotaga (“chiefly contributions”) to the Council as directed by its members.
It is equally clear that the Faumuina matai title is appurtenant to the Village of Alofau. This relationship has also existed on record from the beginning of the system of registering matai titles in 1906. Two holders of the Faumuina title, however, were recorded in the Village of Aunu'u registry, one in 1911 and the other in 1917. Though only a foundation remains today, the Faumuina titleholder had sleeping quarters there on the land at issue. The 1911 registrant is buried nearby. The 1917 registrant listed under the Village of Aunu'u resigned in 1948. The registered Faumuina titleholder listed under the Village of Alofau in 1906 was succeeded in 1949. These facts show that the Faumuina title has been firmly and principally established, or reestablished, as the case may be, with the Village of Alofau at least since 1949. The Faumuina family owns communal lands in the Village of Alofau. The Faumuina titleholder, as the sa 'o of the family, has the pule over those lands. The Faumuina fale tailmalo is located in Alofau. As the sa'o of the Faumuina family, the Faumuina titleholder is a member of the Village Council of Alofau and is recognized in the Village salutation. He is not a member of the Village Council of Aunu'u and is not recognized in the Village of Aunu'u salutation. The Faumuina titleholder renders monotaga to the Village Council of Alofau, not the Village Council of Aunu'u.
The Faumuina titleholder is also the paramount chief of Saole County. Both Villages, Aunu'u and Alofau, are located within this County. In his capacity as the paramount chief of the County, the Faumuina titleholder periodically visits the Village of Aunu'u and, at all times, is dignified by and commands the respect of the Aunu'u villagers. He does not, however, acquire pule over communal lands outside of the Faumuina family’s communal lands in Alofau, or elsewhere if there are any such lands, simply by virtue of his role as the paramount chief of the county.
Under these circumstances, we find that as between Faumuina and Tautolo, the entire land at issue is the Tautolo family’s communal land. The immediate consequences of that finding are different, however, for the portion of the land at issue surveyed and offered for registration by Faumuina, on the one hand, and for the portion of the land at issue within Tautolo’s survey but outside Faumuina’s survey, on the other.
The portion of the land at issue within Faumuina’s survey went through the registration process. Thus, Tautolo is entitled to have the title to this *308portion of the land at issue registered as the Tautolo family’s communal land. Members of the Fa'i family may continue to live on, cultivate, and otherwise use this portion of the land at issue, but only at the Tautolo titleholder’s pleasure.
At this time, however, we cannot fully determine the ownership of the portion of the land at issue within Tautolo’s survey but outside Faumunina’s survey. In order to make this determination with respect to other potential ownership claimants, Tautolo must offer to register the title to this portion of the land at issue as the Tautolo family’s communal land. Until this determination is made, members of the Fa'i family may also continue to live on, cultivate, and otherwise use this portion of the land at issue, again with the Tautolo titleholder’s pleasure.
The well site is located within the portion of the land at issue offered within Faumuina’s survey. Thus, the lease entered between ASPA and Tautolo for the well site is valid. Tautolo, on behalf of the Tautolo family, is presently entitled to receive from ASPA the rents due and owing, now and in the future, under the well site lease.
The disposal site is located within the portion of the land at issue surveyed by Tautolo but outside the portion of the land at issue offered for registration by Faumuina. The lease entered between ASPA and Tautolo for the disposal site is valid as between Faumuina and Tautolo. However, ownership claims by others to this portion of the land at issue can still arise when and if Tautolo offers to register this portion of the land at issue. ASPA may pay Tautolo the rents due and owing, now and in the future, under the disposal site lease, or, at its option, it may withhold payments of the rent for the disposal site, pending the outcome of Tautolo’s offer, if it is made, to register the title to this portion of the land at issue.
Order
1. As between Faumuina and Tautolo, the entire land at issue is the Tautolo family’s communal land.
2. The Territorial Registrar shall register the title to the portion of the land at issue that Faumuina surveyed and offered for registration as the Tautolo family’s communal land.
3. Tautqlo may offer to register the title to the portion of the land at issue included within his survey but outside Faumuina’s survey as the Tautolo family’s communal land.
4. ASPA shall pay to Tautolo all rent due and owing, now and in the future, under the well site lease. At this time, however, ASPA may *309either pay to Tautolo all rent due and owing, now and in the fixture, under the disposal site lease, or it may withhold payment pending the outcome of Tautolo’s offer, if it is made, to title to the portion of the land at issue within register the Tautolo’s survey but outside Faxxmuina’s sxxrvey.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486678/ | ORDER DENYING STAY PENDING APPEAL
On May 12, 2000, the Court awarded the matai title “Galea'i” to counterclaimant Moaali'itele L.K. Tu'ufuli (“Moaali'itele”). On July 3, 2000, claimant Tafua F.M. Seumantafa (“Tafua”) timely filed a notice to appeal our decision following our denial of his motion for new trial on June 22, 2000. Simultaneously, Tafua filed a motion to stay the judgment pending appeal. The motion for a stay was heard on July 28, 2000. Counsel for Tafua and Moaali'itele were present.
Discussion
The court, in its sound discretion, may stay a final judgment only for cause shown. A.S.C.A. § 43.0803; T.C.R.C.P. 62(d); In re Matai Title “Salanoa”, AP No. 04-98, slip op. at 2 (App. Div. Oct. 28, 1998) (Order Denying Motion to Stay Execution of Judgment Pending Appeal). The decision is neither automatic nor casual, Asifoa v. Lualemana, 17 A.S.R.2d 10, 12 (App. Div. 1990), and is guided by evaluating several criteria: (1) irreparable harm to the appellant if a stay is not granted, (2) irreparable harm to the appellee if a stay is granted, and (3) the likelihood of success on appeal. In re Matai Title "Mulita’uaopele”, 17 A.S.R.2d 71, 73 (Land & Titles Div. 1990). A fourth criteria is whether the public interest would be affected by a stay. Asifoa v. Lualemana, 17 A.S.R.2d 100, 102 (App. Div. 1990).
The first two criteria involve weighing the equities based on the harm resulting to the parties if a stay is granted or denied. This Court once *311observed that “in most matai title cases, the balance of hardships will militate strongly in favor of granting a stay pending appeal” and then cited a number of factors that may justify a stay in a particular matai case, even when reversal on appeal is highly unlikely. In re Matai Title “Mulitauaopele”, 17 A.S.R.2d at 73. This statement is not, however, a substitute for judicious inquiry. In re Matai Title “Salanoa ”, slip op. at 4-6 (Order Denying Motion to Stay Execution of Judgment Pending Appeal). Indeed, the Court in In re Matai Title “Mulitauaopele” went on to find circumstances, including an essentially meritless appeal, that supported denial of the stay in that case. 17 A.S.R.2d at 73-75.
The harm to the appellant and appellee individually is always apparent in a matai case. Without a stay, the appellee’s coming investiture as the titleholder before a decision on appeal will impact the appellant’s standing in the family. With a stay, the appellee’s installation will be considerably delayed. Other specific factors may affect the “balance of hardships” on the individual litigants in a given case, see In re Matai Title “Salanoa ”, slip op. at 4 (Order Denying Motion to Stay Execution of Judgment Pending Appeal), but none are apparent here. The equities individually pertaining to Moaali'itele and Tafua do not dramatically sway the balance in favor of either party for purposes of staying the judgment.
In our view, the factors that the Court listed in In re Matai Title "Mulitauaopele”, 17 A.S.R.2d at 73, deal for the most part with the impact on the family involved of granting or denying a stay. As such, they address the fourth criteria of the effect of a stay on the public interest far more significantly than the litigants’ individual concerns. It is important to the family and its role in community affairs to have matai title disputes before the Court resolved without undue delay. A family’s general welfare and good fortune depend in large measure on having a leader who can allocate and protect the family’s communal lands, oversee family functions and disagreements, and otherwise serve and lead family members. See Iri re Matai Title “Salanoa ”, slip op. at 5-6 (Order Denying Motion to Stay Execution of Judgment Pending Appeal).
We found from the evidence in this case that Moaali'itele received the consensus support of the two clans of the Galea’i family at a meeting of the family gathered to select the successor to the “Galea’i” title. Tafua disagrees with and continues to resist the family’s, decision. However, we have not seen any evidence that indicates any change in the family’s consensus support for Moali'itele as the successor titleholder. We think it is far more important that Moaali'itele assumes leadership of the Galea’i family as soon as the family wishes to proceed with the investiture than to stay, in effect, the appropriate ceremonies pending appeal because of Tafua’s personal interests.
*312Lastly, we point out that Tafua’s motion for a new trial only took issue with our findings of fact. He did not cite any other error as a potential basis for appeal. In our view, the evidence at trial was more than sufficient to support the findings of fact. His grounds for appeal are weak. Thus, typical of matai title cases, the likelihood that Tafua will succeed in the appeal is virtually non-existent. The slim possibility of success brings into play the public interest in denying stays that serve to encourage litigants to appeal only to postpone the effective date of judgments against them. Asifoa, 17 A.S.R.2d. at 12-14.
Order
Accordingly, Tafua’s motion to stay the judgment pending appeal is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486679/ | OPINION AND ORDER
This matter came on regularly before the Court on August 2, 2000 for a pretrial conference pursuant to Rule 6 of the Land and Titles Rules.
At the pretrial conference, the Court raised, sua sponte, the issue of jurisdiction based upon allegations in the Answer to the Petition of Objection to Registration of Land, filed by the defendant on June 14, 2000. That Answer states:
(1) defendant is a member of the “Faiivae communal family of Leone”;
(2) the “Faiivae communal family is the owner of the land ‘Pima’ in the village of Leone”; and
(3) defendant has the “consent” of the current senior matai to register “Puna” as defendant’s individually owned land.
Defendant supports this Claim by documents filed with the Territorial Registrar’s Office including, but not limited to:
(1) a land survey of the land “Puna” requested by defendant and conducted in September 1993; and
(2) copies of notices of such surveys.
Discussion
Under the land survey statute, A.S.C.A. § 37.01.02(d), “[ojnly the senior matai of a Samoan family has the authority to request a survey of *314communal property of that family.” Defendant’s survey, initiated and conducted on his own behalf and offered to substantiate registration of what defendant describes as communal land, does not comply with the statute.
Further, as alleged by defendant, his registration of a portion of the communal lands of the Faiivae family, upon the oral permission of the señor matai of that family, ignores the statutory prohibitions against a matai alienating communal lands, or any part thereof, without the written approval of the Governor. A.S.C.A. § 37.0204(a). Also, under A.S.C.A. § 37.0203, all such instruments are required to be filed with the Secretary of the Land Commission for study and recommendations thereon by the Commission, prior to the Governor’s signature.
The present status of this dispute leaves this Court with no legal document describing the real property in dispute, no written conveyance by the senior matai to the defendant previously filed with the land commission and approved by the Governor and no other documents, pleadings, affidavits, or other papers on file with the Court indicating any justiciable case or controversy. Until all the statutory procedures have been duly followed by the defendant, this Court lacks jurisdiction to proceed. This case must, therefore, be dismissed without prejudice and the copy of the file duly transferred to the Secretary of the Land Commission/Territorial Registrar of American Samoa for any further proceedings consistent with law and procedure.
Order
LT No. 05-95 is dismissed without prejudice due to lack of jurisdiction over the subject matter. A copy of the file and this Order shall be transferred forthwith by the Clerk of Courts to the Territorial Registrar of American Samoa.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486681/ | ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Arthur Ripley Jr. (“Ripley”) wishes to succeed to the matai title “Fepulea'i” of the Village of Utumea. He filed his claim for this title with the Territorial Registrar on May 7, 1997. When the Registrar did not act on the claim, Ripley initiated this action for declaratory relief on January 29, 1999. Defendant American Samoa Government (“ASG”) answered on February 19, 1999, stating that the Registrar had declined to *332register the title on the grounds that it was not registered prior to January 1, 1969, as required by A.S.C.A. § 1.0401. During a hearing on September 23, 1999, the parties agreed to brief the issue for summary judgment purposes. The parties’ briefs were filed, and we held a hearing on the issue on March 20, 2000.
Discussion
A. The “Fepulea’i” Title Existed before 1969
Ripley has proved by a preponderance of the evidence that the “Fepulea'i” title was in existence in the Territory early in the 20th century. In Fepuliai v. Faumuina and Lealataua County, 1 A.S.R. 174, 175 (1908), this Court referred to the title when it vested title to land in “Faumuina and the Lausoalii (a body of ‘matais’ of which Fepuliai is a member).” Two cases concerned challenges to registration of the title: Faumuina, Toi'a, Utu, Fuaata, Letuli, Sevaaetasi & Solomona v. Sagatu & Pusa, No. 16-1917 (1918), and Salave'a N. and Posu v. Pusa and Solomona, No. 18-1917 (1918).3
B. The “Fepulea'i” Title Was Not Previously Registered
None of these cases, however, explicitly establish that the “Fepulea'i” title was ever registered in the matai title register. The records in the two cases involving actual registration of the title merely indicate that the disputes were reconciled and the complaints were withdrawn in September of 1918. Ripley asserts that, the complaints having been withdrawn, the original claimant Pusa’s application necessarily went forward and resulted in his registered succession to the title. The problem with this argument is that we cannot be certain that the title was indeed registered following the court actions. It is logical that, having litigated the issue, the family installed a titleholder following the court actions. On the other hand, perhaps the family resolved to leave the title vacant. In any event, without evidence to the contrary, we must presume the Territorial Registrar’s records to be accurate. Seva'atasi v. Pago Pago Village Council, 19 A.S.R.2d 133, 135-136 (Land & Titles Div. 1991). We accordingly hold that Ripley has not established by a preponderance of the evidence that the “Fepulea'i” title was registered before, at the time of, or after any of the court actions described above.
*333C. A.S.C.A. § 1.0401 Prohibits Registration
Having concluded that the title was not registered earlier in the century, we must then examine the effects of A.S.C.A. § 1.0401. The statute clearly mandates that matai titles had to be registered by January 1, 1969. Matai title registration closed on that date, after which titles not registered could not be registered. The “Fepulea'i” title was not registered by this date, and therefore, under the plain terms of the statute, no one can presently register as the successor to the title.
The issue before us was raised and decided in Mailo v. Fuimaono, 4 A.S.R. 757, 759-60 (Trial Div. 1967). However, the title involved in Mailo was a newly created title that was not only unregistered but also had never been used before. Id. at 760-61. Mailo may be distinguished in that the present case involves a title with substantial historical existence and apparent cultural significance. This fact brings into consideration the constitutional policy “to protect the lands, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry.” Am. Samoa Rev. Const, art. I, § 3.
This constitutional protective policy may at first seem to be at odds with the A.S.C.A. § 1.0401 statutory time limit prohibiting later registration of a recognized title of venerable and trdditiorial importance that was not registered by the prescribed deadline. Yet allowing the registration of titles at this late date, however valid, might also result in the derogation, rather than preservation, of this particularly significant aspect of the Samoan way of life. Judicial. creation of a tacit exception into the statute, without appropriate statutory criteria to establish and account for legitimate exceptions to the 1969 title registration deadline, would invite false claims and interject subjective judicial evaluations into the decision.
The Legislature has spoken with a statute that clearly promotes the constitutional policy of protecting the Samoan way of life and provides an objective standard in application. The possibility of occasional adverse impact in situations like the present one is not sufficient to render A.S.C.A. § 1.0401 constitutionally invalid. In the absence of evidence to the contrary, we must regard the plain wording of the statute as conclusive. Kaiser Aluminum v. Bonjorno, 494 U.S. 827, 835 (1990). Facially, § 1.0401 makes no distinction between old and new titles. No evidence before us, in the form of legislative history or otherwise, indicates a legislative intent to limit the statute’s application to new titles.4 Had the Legislature intended § 1.0401 to apply to newly created *334titles only, it could and should have said so. We cannot and will not read an implication into a statute that it does not warrant. See United States v. Merriam, 263 U.S. 179, 187-88 (1923). Rather, only the Legislature can and should change the statute if it agrees that there are circumstances when holders of old titles that are revered and unregistered should be excepted according to the constitutional policy regarding protection of the matai system.
Order
We declare that A.S.C.A. § 1.0401 prohibits the Territorial Registrar from registering Ripley as successor to the “Fepulea'i” title. Based on this declaration, summary judgment is awarded to ASG.
It is so ordered.
See also Tia v. Faumuina, 1 A.S.R. 201 (Trial Div. 1909); In re Matai Title “Leoso", 1 A.S.R. 560 (Trial Div. 1937); Tautoo v. Tua'a, 15 A.S.R.2d 10 (Land & Titles Div. 1990).
None of the predecessor statutes made any distinction between old and new titles. See Codification of the Regulations for the Government of American Samoa § 45.1 (1917) (October 31, 1906, deadline); Code of *334American Samoa § 927 (1949) (November 1932 deadline); Rev. Code of American Samoa § 6.0102 (1961) (November 1, 1932, deadline); 1 American Samoa Code § 701(b) (1973) (the present January 1, 1969 deadline). Again, we have no history or other evidence of any different legislative intent at the time of these enactfnents. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486682/ | OPINION AND ORDER
Disappointed bidder, Island’s Choice, Inc. (“ICI”), petitions this court to review an order of the •Administrative Law Judge (“ALJ”) affirming an agency decision to award the contract for the supply and delivery of milk for the School Lunch Program (“milk contract”) to co-defendant G.H.C. Reid and Co., Inc. (“Reid”).
Reid and ICI were the two primary bidders who responded to an April 2000 annual invitation for bids published by the Office of Procurement of the American Samoa Government (“OP-ASG”). The bidders competed according to who scored the highest points on an agency-established five-point test, including (“Section I”) carton, 200 points, (“Section II”) product specifications, 300 points, (“Section III”) experience and ability to perform, 200 points, (“Section IV”) sample, 200 points, and (“Section V”) cost, 300 points. The Source Evaluation Board (“SEB”) evaluated the bidders and awarded points in each category.
OP-ASG selected Reid for the milk contract on May 3, 2000. ICI *5appealed the agency decision in a timely and proper manner. Specifically, ICI filed a notice of dispute with the agency almost immediately, on May 16, 2000. OP-ASG denied the notice of dispute on May 30, 2000. ICI then filed a petition for review of agency action with the ALJ on June 19, 2000. The ALJ heard arguments between August 23 and August 30, 2000, on which date Reid was to begin supply and delivery of milk under the milk contract. The ALJ rendered his opinion affirming OP-ASG’s award of the milk contract to Reid on September 15, 2000. ICI then submitted a motion to reconsider or to have a new trial to the ALJ. This was apparently denied in open session, and the ALJ published a written order denying the motion on October 12, 2000. Petitioner then followed timely and proper procedure to appeal the ALJ decision. It submitted a petition for this court’s review of the ALJ opinion on October 3, 2000. The transcript of ALJ proceedings was filed in court on November 16, 2000; ICI filed its appeal brief on December 22, 2000; and Reid filed its appeal brief on January 22, 2001. ICI then moved to set a date for oral argument on February 7, 2001, which we heard on May 23, 2001. The milk contract term ended, and supply ceased, on June 1, 2001.
In its petition for appellate review of the ALJ decision, ICI has asked for this Court to (1) set aside the milk contract on A.S.C.A. § 4.1044 grounds, and to (2) reverse the order and award the milk contract to ICI, or else grant damages to ICI for OP-ASG’s failure to properly award the contract.
Jurisdiction properly arises for Appellate Court review of the ALJ order under A.S.C.A. §§ 4.0604(g) and 4.1041.
I. Mootness
It is now summer in the American Samoa school year, if not in meteorological terms, and the milk contract has, like the school year, expired with Reid as the purveyor of milk. There is no contract to set aside for petitioner, nor pertinent order to reverse. It thus appears that the issue of the appropriateness and legality of the 2000-2001 contract award is moot.
Judicial power in American Samoa, like the United States, is limited review of presently pending cases or controversies. U.S. CONST, art. Ill; Rev. Const. Am. Samoa art. Ill, § 1; A.S.C.A. § 3.0103; Burke v. Barnes, 479 U.S. 361, 363 (1987); Meredith v. Mola, 4 A.S.R. 773, 776 (Trial Div. 1973) (citing Baker v. Carr, 397 U.S. 186 (1962); Powell v. McCormack, 395 U.S. 486 (1969)). Simply put, we cannot hear cases that are moot, or where the issues to be determined are no longer “live” or the parties lack a legally cognizable interest in the outcome. Senate of *6the Legislature of Am. Samoa v. Lutali, 26 A.S.R.2d 125, 129 (Trial Div. 1994); Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam); Powell, 395 U.S. at 496.
Judicial review of administrative action is limited by the requirement that there be an actual, live controversy to adjudicate. Campesinos Unidos v. U.S. Dept. of Labor, 803 F.2d 1063, 1067 (9th Cir. 1986) (citing Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 72-73 (1983)). However, courts confronting expired official acts frequently find exception to mootness where the acts at issue are “capable of repetition, yet evading review.” S. Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911); see also Charles Alan Wright et al., Federal Practice and Procedure § 3533.8 (2d ed. 1990). Moreover, if the reviewing court can afford prospective relief, the controversy is not moot. Campesinos, 803 F.2d at 1068; Associacao Dos Industriais de Cordoaria v. United States, 828 F.Supp. 978, 984 (Ct. Int’l Trade 1993).
Clearly, the issue of to whom to award the milk contract is moot because the school year has ended, the contract has been fully performed, and the contract term of August 30, 2000 to June 1, 2001 has expired. The issue is thus whether or not the procurement acts at issue by OP-ASG in awarding the milk contract to Reid are “capable of repetition, yet evading review,” and if they are, whether or not this court can provide prospective relief to ICI.
A. Capable of Repetition, Yet F.vading Review
In Lutali, the only American Samoa case on record to have dealt with the mootness issue, the Trial Division evaluated the “capable of repetition, yet evading review” doctrine based on a two-part standard employed by the U.S. Supreme Court in Murphy, 455 U.S. at 357, which was cited in Weinstein v. Bradford, 423 U.S. 147 (1975), and which first originated after a thorough review of the history of the mootness doctrine by that Court in Sosna v. Iowa, 419 U.S. 393 (1975). The Lutali Trial Court, however, cited a narrower version of the standard used by the U.S. Supreme Court. Specifically, in Lutali, the Court stated that in non-class actions, the “capable of repetition, but evading review” doctrine is limited to cases where “(1) a defendant terminates the challenged action before the issue is fully litigated, and (2) there is a reasonable expectation the plaintiff would be subject to the same actions in the future.” Lutali, 26 A.S.R.2d at 129-30 (emphasis added). The exact language used in U.S. Supreme Court cases, however, is: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” *7Murphy, 455 U.S. at 357 (emphasis added); Weinstein, 423 U.S. at 353 (emphasis added).
The Lutali Court thus states a more specific version of the U.S. Supreme Court language. Where the Supreme Court requires that, to overcome a finding of mootness, the challenged action be “too short to be fully litigated,” the Lutali Trial Court stated the first element as being when “a defendant terminates the challenged action” before it is fully litigated. The language used by the Trial Court in Lutali seems a logical, valid and acceptable interpretive application of the Supreme Court’s language where a defendant perpetrator terminates a controverted action. This was appropriate in the Lutali case, where the Fono sued ASG for implementing ASG employee pay increments without prior authorization. Once the suit was initiated, however, the Governor decided not to implement the pay increases, and argued that the case was therefore moot. The Trial Court held that the Governor’s conduct fell within its articulated exception for mootness.
The language used by the Trial Division to state the “capable of repetition, yet evading review” doctrine, though appropriate for adjudicating specific fact instances akin to Lutali, is unduly restrictive. The Trial Division did not state how or why it deviated from the U.S. Supreme Court language, nor did it indicate that it was doing so. The circumstances where the Trial Division’s language apply are simply too specific to be generalized.
We expand upon Lutali and adopt the more generally applicable language employed by the U.S. Supreme Court in Sosna, Murphy, and Weinstein in evaluating' whether or not an action is capable of repetition, yet evading review. For the mootness inquiry, the questions before the court are thus: was the challenged action too short to be fully litigated prior to its cessation or expiration, and is there a reasonable expectation that the same complaining party will be subject to the same action again?
First, was the challenged action in its duration too short to be fully litigated prior to its cessation or expiration? That is, was the agency award of the milk contract too short to be fully litigated prior to its expiration? We find that it was. OP-ASG announced its choice for the milk contract on May 3, 2000. ICj complied with the appeals process and was denied at each level, first applying for review by the OP-ASG, then with the ALJ, and finally filing with the Appellate Court. The most efficient of appeals would not have brought the case to this court until late winter or early spring, at which point the contract would already have been substantially completed. We thus find that the agency’s decision on the milk contract is one that may, even under the most proper or timely of circumstances, evade review.
*8The second element of the mootness exception analysis regards whether there is a reasonable expectation that, the same complaining party would be subjected to the same action again. As stated in Lutali, “‘[reasonable expectation must go beyond a theoretical possibility of repetition to the same plaintiff.” Lutali, 26 A.S.R.2d.at 129 (citing Delta Air Lines, Inc. v. Civil-Aeronautics Bd., 674 F.2d 1 (D.C. Cir. 1982)); Murphy, 455 U.S. at 357. ICI is one of the consistent annual bidders to the-milk contract, and thus is a plaintiff that would again be subject to the bidding, evaluation and selection process for future milk contracts. Our inquiry, however, is more specific, and regards whether ICI would reasonably be expected, to be subject to the specifically challenged actions again, not merely, the general process of procurement. We do not judge the merit of the actipns, but simply their repeatability.
1. Misbranding
Within ICI’s. general., allegation against CfP-ASG for. its. wrongful assessment of points, ICI refers to roughly five specific acts or omissions of OP-ASG in assessing points to bidders. First, with regards to Section I of the five-point test, ICI argues that SEB.only subtracted 25 points out of 200 instead of. subtracfing all-200 points for Reid’s alleged misbranding of its product in yiplafion of applicable federal standards for procurement. We need not reach the -issue of whether Reid’s product was misbranded, whether Reid’s, labeling violated federal, standards, or whether a 25-point subtraction is enough.- For file mootness inquiry, .we need only ask whether there is a reasonable ..expectation that the circumstance of an opponent’s mislabeling and the SEB’s subtraction of points would occur again. ICI’s arguments do not indicate that this problem has occurred before or will occur again; no pattern of repetition has been shown, nor does it seem that the mislabeling and point assessment are due to a potentially repeatable, procedural event rather .than a one-time event and number assignation. Finding no evidence that this situation has occurred beforehand no indication that it will occur again, we find ICI’s arguments regarding Reid’s misbranding moot. .
2. Product Specifications
Second, ICI argues that the SEB wrongfully deducted 33 points out of 300 from Section II of its evaluation, regarding product specifications. It appears that ICI did not place the words “Grade A’’ on its carton, where Reid did, and ICI was penalized for this failure. ICI, however, itself indicates that this deduction was a fluke rather than a recurring mistake, since in previous years, no deduction was made for not including the “Grade A” label. We thus faii to find a reasonable expectation of ICI’s again being penalized for failure to place “Grade A” on its carton.
*9
3.Failure to Perform
Third, ICI argues that the SEB did not accurately assess Part III of the evaluation, since it did not subtract points from Reid despite Reid’s failure to perform or deliver during fifteen days of the 1999-2000 contract. According to ICI, the SEB was not even informed of Reid’s failure to perform or deliver. The question is thus whether the SEB can be reasonably expected to again misassess points for failure to perform due to missing information. ICI does not argue that such a lapse of information in the selection process has happened before, or is likely to happen again. As to whether such a point assessment is endemic to the process and by default, repeatable, ICI seems to answer this question for us by introducing the testimony of Tuna Hunkin, an SEB member for the 2000-2001 milk contract. He stated, “we would have deducted points” had they known of the failure. Thus, the assessment seems not to have been the result of an unfair process, but rather a singular occurrence of a forgotten fact.
4. Point Scoring
Fourth, ICI argues that Part IV of the test, the sample portion, was inappropriately point-scored for all bidders. Specifically, ICI argues that the correct method of point-scoring is to divide the 200 points into three sections of 67 points each, labeled “A,” “B,” and “C.” Russell Aab (“Aab”), a member of the SEB in 2000-2001 who tallied the scores, apparently allocated all 200 points to the “C” category, entitled the “Taste Test Panel.” It appears that there is no consensus among the SEB as to how Section IV is correctly computed. In testimony before the ALJ, Aab claimed that all 200 points should be allocated to subsection C, while others such as Pat Tervola and Tuna Hunkin claim that the method of dividing into three subsections is correct. It is not clear how Section IV was evaluated in the past.
The disparities in SEB members’ accounts tend to reveal inconsistent, nontransparent, and therefore unpredictable point-scoring for Section IV of the evaluations for procurement. We thus find that ICI may reasonably expect itself to be subject to agglomerated point-scoring again.
5. Taste Test
Finally, ICI wages a number of arguments against the taste test conducted by the SEB. First, ICI argues that the taste test was a “preference test” of eight members of a taste panel selected by the School Lunch Program department, rather than “an objective testing process that is representative of the students island wide” based on a “comparative study *10based on past data or statistics,” which is “scientifically tested for reliability.” ICI also argues that the very use of a taste test is inappropriate. The issue confronting the Court for mootness determination is thus whether ICI is reasonably expected to be subject to a taste test, evaluated according to the preferences of a taste test panel, again.
''Since the taste test by a taste test panel is, evidently, part of the annual ‘procedure adopted by OP-ASG for evaluating bids, we find that ICI has a reasonable expectation of being subject to it again, in bids for milk procurement contracts.
Overall, we find ICI’s appeal with respect to point assessments for misbranding, product specification, and previous noncompliance incapable of repetition, and therefore moot. We further find that ICI’s claims with respect to point scoring and the taste test are capable of repetition, yet evading review. We now turn to the question of whether we are able to afford prospective relief for any of these claims.
B. Prospective Relief
As stated by the Ninth Circuit court in Campesinos, “if prospective relief can still be afforded, the controversy is not moot.” Id., 803 F.2d at 1068; see also Associacao Dos Industries de Cordoaria, 828 F.Supp. at 984 (“The test is whether a present controversy exists as to which effective relief may be granted.”). In this case, ICI asks for us to set aside the milk contract on A.S.C.A. § 4.1044 grounds, and to reverse the order and award the milk contract to ICI, or else grant damages to ICI for OP-ASG’s failure to properly award the contract. Clearly, we cannot reverse OP-ASG’s choice for the milk contract and award it to ICI because it has already expired. The remaining question is thus whether we can grant damages to ICI.
Federal law 5 U.S.C.A. § 706, the Administrative Procedures Act (“APA”), defines the scope of judicial review for courts reviewing federal agency action. According to this provision, courts subject to the APA may compel agency action or hold it unlawful on a number of grounds. No provision is made, however, for granting monetary relief. Damages are thus simply not available under the APA. See, e.g., Williams v. Casey, 657 F.Supp. 921, 926 (S.D.N.Y. 1987).
The Legislature of American Samoa has adopted administrative procedures based on an earlier model of the APA effectuating a similar scope of judicial review. MODEL STATE ADMIN. PROCEDURES ACT (1961). Specifically, A.S.C.A. § 4.1040(a) states:
*11A person who has exhausted all administrative remedies available within an agency and who is aggrieved by a final decision in a contested case shall be entitled to judicial review under this section and 4.1041 through 4.1044.
A.S.C.A. §§ 4.1041 and 4.1044 limit judicial review to actions staying an agency’s decision, reversing, or modifying the decision. Therefore, as in the federal case, pecuniary relief is not available in judicial review of administrative proceedings in American Samoa. We note, moreover, that A.S.C.A. § 4.1040(b) allows for “the utilization of, or the scope of, judicial review available under other means of review, redress, relief or trial de novo provided by law.” If a disappointed bidder wishes for monetary relief, the proper course of action is not through appellate review of administrative proceedings, but rather through such means as a trial de novo. See Kajima/Ray Wilson v. Los Angeles County Metro, Transp. Auth., 82 Cal.Rptr.2d 348 (Cal.App.4th 1999).
Two of ICI’s claims against OP-ASG and Reid may be capable of repetition, yet evading review, yet prospective relief is simply not available for any of ICI’s claimed grievances. We thus must declare the substance of Id’s petition, moot.
II. Failure to File a Timely Answer
ICI requested judgment for relief based on Reid’s failure to file a timely answer to Id’s initial petition to this Court. As basis for this claim, ICI mistakenly cited A.C.R. 15(b), which provides that judgment be awarded where respondent fails to file an answer within 20 days of petitioner’s application for enforcement of an order. However, the applicable rale is A.C.R. 15(a), which applies to petitions for review of the orders themselves rather than enforcement thereof. This rale sets the standard that “[w]ithin 20 days after the petition is filed, the respondent shall serve on the petitioner and file with the clerk an answer to the petition.” However, the rale does not require the court to give judgment where the time schedule is not followed, nor does it impose any other sanction.
ICI’s mistake of law is noted, and its claim based thereupon, dismissed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486739/ | ORDER GRANTING PLAINTIFF’S MOTION TO AMEND COMPLAINT
Defendants have been charged with Murder in the First Degree according to the Information filed by Plaintiff on November 30, 2001. On February 1, 2002, Plaintiff moved to amend the information, adding an alternative charge of Assault in the First Degree. Defendants argue that the proposed amendment would prejudice their rights. Plaintiff argues that the filing is not prejudicial to defendants’ rights and is in compliance with T.C.R.Cr.P. Rule 7(e).
A review of federal experience with the federal counterpart of Rule 7(e) is informative in understanding what constitutes prejudice under our identical rale. If the defendant has enough time to prepare for the amended information that he is not considered to be taken by surprise, he is not prejudiced and the amendment is permitted. Tiliman v. Cook, 855 P.2d 211, 214-15 (Utah 1993) (defendant had three months to prepare his defense to additional aggravating circumstances); State v. McCowan, 602 P.2d 1363, 1371 (Kan. 1979) (allowing amendment is not reversible error in absence of any reasonable showing that the interests of the defendant were prejudiced); U.S.A.C. Transp. v. United States, 203 F.2d 878, 880 (10th Cir. 1953) (where defendant did not move for time to prepare for any surprise caused by amendment, defendant was not prejudiced by the amendment).
Another key to determining whether the change results in prejudice is consistency in the underlying factual accusations. If the underlying factual accusations remain the same, amending the information to a different charge has been found proper. United States v. Smith, 107 F. Supp. 839, 839 (D.C.Pa. 1952). Also, changing the charge in an information to a lesser included offense of the original charge has been held harmless. Gov’t. of Canal Zone v. Burjan, 596 F.2d 690, 693 (5th Cir. 1979)
In the current situation, the original information included factual allegations of all the elements of assault. In fact, these allegations are the basis of the murder charge. While assault may not technically be a “lesser included charge” of murder, amending the information to include assault is not inconsistent with the original factual allegations. Also, defendants will have had over three months to prepare for the new charge by the time the trial occurs, assuming it is not held at an even later date than currently scheduled. Finally, defendants have failed to show any evidence of how the new charge prejudices their rights.
*108It might be argued that including the new charge of assault prejudices defendants’ rights in that they seem now more likely to be convicted of something than before the amendment. However, the case law makes it apparent that relative likelihood of conviction is not the test for prejudice — rather, whether the change itself produces an unfair disadvantage is the central issue. If the prosecutor in the case at hand were to throw in a possession charge, or robbery, it would be a different situation; new factual allegations would have arisen, possibly taking defendant by surprise. But that is not the case here.
Defendants are not prejudiced by the amended information. The plaintiffs motion to amend is granted.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486742/ | OPINION AND ORDER
A class of immigrant workers from China in CA No. 68-99 (“the Chinese workers”) filed suit against defendants Daewoosa Samoa, Ltd. (“Daewoosa Samoa”) and Kil-Soo Lee (“Lee”) for allegedly breaching terms of their employment contracts, and committing other civil wrongs, all stemming from their employment at the Daewoosa Samoa garment factory in American Samoa.
Later, a class of immigrant workers from Vietnam in CA No. 133-99 *145(“the Vietnamese workers”) filed suit against Daewoosa Samoa and Lee for allegedly violating the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C.A. §§ 201-219,1 breaching terms of their employment contracts, and committing other civil wrongs, in connection with their employment at the same Daewoosa Samoa facility. Initially, the American Samoa Government (“ASG”) and other individuals were also named as defendants in CA No. 133-99, but they were dismissed from the action at various junctures dining the pretrial proceedings.
CA No. 68-99 and CA No. 133-99 were consolidated in due course. Still later, defendants IMS2 and Tourism Company 12 (“TC12”) were added, with the court’s permission, as defendants in CA No. 133-99.
Plaintiff New Star Trading Company, Ltd. (“New Star”) filed a separate action, CA No. 93-00, against Daewoosa and Lee to recover certain property allegedly owned by New Star, but in the possession of Daewoosa Samoa and Lee. Daewoosa Samoa and Lee counterclaimed for monetary damages in this action. We consolidated CA No. 93-00 with CA No. 68-99 and CA No. 133-99, and permitted intervention by the American Samoa Power Authority, Seung Kyu Moon, In Saeng Lee, Jeil Ventures Co., Ltd., and the Samoan employees, and joinder of necessary party ASG, in an effort to resolve all issues involving Daewoosa Samoa and Lee in the same bundle. These additional procedural events, however, took place after the trial of CA No. 68-99 and CA No. 133-99. We therefore made it clear that in the absence of an unexpected compelling reason, we would not necessarily issue our decisions in CA No. 93-00 and on the intervenor and necessary party issues simultaneously with our decision in CA No. 68-99 and CA No. 133-99. As it turned out, we actually disposed of CA No. 93-00 and the intervenor and necessary party claims earlier in this manner.
On January 10, 2000, under the American Samoa injunction laws, A.S.C.A. §§ 43.1301-.1313, the U.S. Secretary of Labor filed a suit in this court, CA No. 2-00, against Daewoosa Samoa and Lee to permanently enjoin Daewoosa Samoa and Lee from violating FLSA §§ 206, 207, 211(a)(1), and 215(a)(1), (a)(2), and (a)(5). This action was brought in connection with the investigation by the Department of Labor of nonpayment of minimum and overtime wages owed with respect to 71 of the Daewoosa Samoa foreign workers. IMS and TC12 were not parties. Pursuant to the parties’ stipulation, Daewoosa and Lee were preliminarily *146enjoined on February 10, 2000, from violating the FLSA as set forth by the terms of a proposed consent judgment signed by the parties on August 2, 1999,- and filed with the stipulation. Since then, the action has stood still and remains unresolved. The impact of CA No. 2-00 on CA No. 68-99 and CA No. 133-99 is discussed below.
Introduction
The combined CA No. 68-99 and CA No. 133-99 cases are made more complicated by the diverse language and culture of the parties and witnesses involved. The plaintiffs originate from either China or Vietnam. Daewoosa Samoa’s owners hail from Korea. Contract performance took place in American Samoa. However, the negotiation and finalization of the employment contracts transpired in either China or Vietnam.3
The social barriers between the parties was evident before and during trial. Throughout the proceedings, testimony was, as became necessary or appropriate, translated into five different languages, English, Samoan, Korean, Vietnamese, and Chinese. For the most part, amateur translators were necessarily employed, and unsurprisingly, the translations were difficult and at times ineffective.
Counsel did little to abridge this complexity. The pretrial maneuvering was intricate and exhaustive. During the trial, perhaps one of lengthiest in the recent history of this court, they complicated our fact-finding mission by introducing heaps of unmarked, seemingly irrelevant evidence, leaving us with the task of filtering through and searching for relevant documents and records amid these piles. Nonetheless, we were ultimately able to assemble the relevant facts — and apply applicable legal principles to them.
The major entities on the defense side of this case include two corporations, two Vietnamese employment-recruiting agencies, and several individuals. Both corporations are similarly named. Daewoosa Samoa, which was incorporated in American Samoa, was the operational employer of the Chinese workers and the Vietnamese workers. U.S.A. Daewoosa, Ltd. (“Daewoosa USA”), which was established in Korea, appeared as the named employer to the Vietnamese workers’ employment contracts. Individuals affiliated with these corporations include Lee, a Korean national, the primary owner and apparent manager of Daewoosa Samoa, and Um Sang Hee (“Hee”), a Korean national, the president of Daewoosa USA, shareholder and vice-president of *147Daewoosa Samoa, and primary negotiator for and signatory to the Vietnamese workers’ employment contracts.
IMS and TC12 are Vietnamese government-connected agencies arranging overseas employment of Vietnamese nationals. They assisted in recruiting, negotiating, and implementing the Vietnamese workers’ employment with Daewoosa Samoa. TCI2 is organized under a general directorate, which is governed by the government of Vietnam. Because both IMS and TCI2 operate Vietnamese labor export organizations, all of their labor contracts must be approved and authorized by the Vietnam Department of Administration of Foreign Employed Labour Force, the Vietnam government agency empowered to oversee all foreign labor contracts. Nguyen Viet Chuyen (“Chuyen”), a Vietnamese national employed by TCI2, became charged with supervisory responsibility over the IMS and TCI2 Vietnamese workers at the Daewoosa Samoa factory.
Procedural History
The complaints in CA No. 68-99 and CA No. 133-99 were filed, respectively, on July 2, 1999 and December 23, 1999. After the complaint was filed in CA No. 133-99, this action became a tangled web of preliminary filings and orders. On December 29, 1999, the court issued a stipulated preliminary injunction preventing Daewoosa Samoa: (1) from removing or causing the removal of the Vietnamese workers from American Samoa or from otherwise disturbing the Vietnamese workers; and (2) from terminating any immigration sponsorships of the Vietnamese workers without affording them opportunities to consult with the Law Office of Virginia Sudbury and to have a hearing before ASG’s Immigration Board.
On January 27, 2000, the Vietnamese workers requested class action certification under T.C.R.C.P. 23, in connection with their amended complaint filed on January 14, 2000 and certain proposed amendments to the amended complaint. On February 24, 2000, we ruled out certification of a Rule 23 class action under the purview of the FLSA, but left open the certification as to non-FLSA claims.4 In the same ruling, we granted the workers leave to amend their complaint to allege their statutory claims under the FLSA.
On April 11, 2000, we consolidated CA No. 68-99 and CA No. 133-99, and certified the class action status of all the workers’ claims alleged in these cases, except those rooted in the FLSA, which were later amended. Accordingly, on January 12, 2001, counts 6 and 7 were amended to allege violations of FLSA §§ 206(a) and 207(a)(1), respectively, and *148counts 13 and 19 were amended to allege violations of FLSA § 215(a) (3). On January 17, 2001, approximately 168 Vietnamese workers filed signed consents to the FLSA litigation.
Certain named defendants were dismissed and added in CA No. 133-99. On January 25, 2000, ASG was dismissed as a party defendant. We dismissed as defendants Moon Seung Kyu on February 18, 2000, and Mary and Togiola Tulafono on April 4, 2000. Jo Heung Soo was dismissed as a defendant on February 6, 2001. On December 15, 2000, IMS and TC12 were added as defendants with the court’s permission. An amended complaint reflecting this addition of parties was filed, and on December 21, 2000, TCI2 answered and cross-claimed against Daewoosa Samoa for contractual specific performance and monetary damages. IMS did not answer or otherwise in any manner appear or participate in the proceedings of CA No. 133-99.
Since the filing of CA No. 133-99, the Vietnamese workers called upon the court numerous times to adjudicate pretrial contempt filings against Daewoosa Samoa and Lee for violating the court’s orders and harassing the Vietnamese workers because of the their involvement in this lawsuit.
On February 18, 2000, we held Daewoosa Samoa and Lee in contempt for attempting to withhold the identification cards of one of the Vietnamese workers and for threatening to send five of them back to Vietnam unless they returned to work. We also required Daewoosa Samoa and Lee, or their agents: (1) to return passports to the Vietnamese workers; (2) to not confiscate their identification cards when the workers leave the compound; (3) to provide copies of Immigration Board decisions affecting the workers to their attorneys; and (4) to furnish the workers nutritious meals.
On April 4, 2000, we held Daewoosa Samoa and Lee in contempt for attempting to send at least one more of the Vietnamese workers out of the territory without consulting their attorney in compliance with the December 29, 1999, preliminary injunction. Additionally, we enjoined Daewoosa Samoa and Lee from preventing any of the Vietnamese workers from working at Daewoosa Samoa because of their involvement as plaintiffs in this lawsuit.
On July 14, 2000, we enjoined Daewoosa Samoa and Lee: (1) from imposing overcrowded living conditions on the Vietnamese workers, including but not limited to situations in which any of the workers must share single beds; (2) from pressuring any of the workers to terminate or in any other manner prevent or discourage them from prosecuting these actions; and (3) from in any manner preventing the workers from exercising their choice of associates in American Samoa outside of *149Daewoosa Samoa’s premises.
On September 22, 2000, we ordered Daewoosa Samoa and Lee to immediately put back to work 38 of the Vietnamese workers. Daewoosa and Lee listed these 38 workers in a letter to ASG’s Immigration Board, citing unsubstantiated reasons for returning them to Vietnam. On September 26, 2000, we ordered Daewoosa Samoa and Lee to return all of the Vietnamese workers to work, including specifically eight workers named as “troublemakers” and prevented from working by Lee because they attended the September 22, 2000, court hearing, no later than the following Monday, October 2, 2000.
On October 23, 2000, we denied the motion by Daewoosa Samoa and Lee to terminate several of the Vietnamese workers who were pregnant, in the absence of any established safety or other legitimate concern, and ordered that the pregnant workers be returned to appropriate work, with retroactive pay from October 2, 2000. We further held Daewoosa Samoa and Lee in contempt for failing to heed earlier orders.
On December 14, 2000, we issued orders on several matters. Included were: (1) directions to Daewoosa Samoa and Lee to fully pay the wages,less authorized tax deductions, of the Vietnamese workers for the period from October 2 to November 28, 2000, without any limitation on other unpaid wage obligations; (2) directions to Daewoosa Samoa and Lee, in accordance with their commitment on December 7, 2000, to arrange and pay for transportation of the Vietnamese workers desiring to return to Vietnam, the first 35 within three weeks, and the remaining workers thereafter in groups of varying size at reasonable intervals; (3) permission by stipulation to preserve the testimony of returning Vietnamese workers by pretrial videotaped depositions; and (4) denial as impractical of a requested order preventing Daewoosa Samoa and Lee from contacting the Vietnamese workers.
The requested no-contact order was prompted by the altercation between several Samoan employees and Vietnamese workers on November 28, 2000. This event arose out of arguments between Daewoosa Samoa’s floor manager and the Vietnamese workers who were not working and Lee’s directions to the floor manager to remove the workers. One of the Vietnamese workers, Tmong Thi Le Quyen, lost an eye during the ensuing melee. We did not make detailed findings on this event and responsibility for it because the evidence presented was inconclusive and the liability issue was not then before us. Clearly, however, many of the Vietnamese workers feared returning to work after this incident and were motivated to return to Vietnam.
On January 10, 2001, we granted the Vietnamese workers’ application to *150establish a receivership over Daewoosa Samoa, based on its apparent financial instability, to secure Daewoosa Samoa’s remaining assets, oversee the provision of food to the workers and then repatriation, and evaluate Daewoosa Samoa’s ability to continue business operations. On January 12, 2001, we appointed Southwest Marine of Samoa, Inc. as the receiver.
When the need no longer existed, we terminated the receivership and discharged the receiver on June 27, 2001. At that time, the garment factory had been inoperable since January 2001 and had no prospect of resuming operations, most of Daewoosa Samoa’s immigrant workers had departed American Samoa, and ASG had completed an initial inventory of property on the Daewoosa Samoa premises and agreed to assume custody of and security responsibility for the factory compound and property located there.
Well after class certification, in August of 2000, one of the representative workers, Nu Thi Nga, who was recmited by IMS and arrived in American Samoa on March 8, 2000, died from causes unrelated to this lawsuit.5 Although the Vietnamese workers did not seek a substitute for the deceased representative plaintiff in accordance with T.C.R.C.P. 25(a), this cause of action with regards to the remaining named and unnamed Vietnamese workers was not extinguished, because class certification had been court approved prior to the representative plaintiffs death, and other named representative plaintiffs remained.6
Finally, on January 18, 2001, trial began and, after 18 trial days, concluded on February 22, 2001. Counsel Virginia L. Sudbury and Christa Tzu-Hsiu Lin for the Vietnamese plaintiffs, Marie A. Lafaele for Daewoosa Samoa and Lee, and Paul F. Miller for TCI2 were present throughout the trial. Counsel Afoa L. Su'esu'e for the Chinese plaintiffs was present at proceedings immediately pertaining to his clients. The-remaining counsel did not attend the trial. IMS was not represented by counsel and did not present any evidence.
Eacis
*151A. Workers’ Eecmitment
This saga apparently originated in Korea. Events then revolved around travel to China and Vietnam, and all the while traversing back and forth between these countries and American Samoa.
Sometime in September 1998, Lee traveled to China and enlisted workers to do miscellaneous jobs at the Daewoosa Samoa garment manufacturing facility in American Samoa. A total of 18 Chinese nationals, now comprising the Chinese workers, were enlisted. They arrived in American Samoa in two separate groups. An initial group of 13 arrived in October 1998, and began working on October 14, 1998. The remaining five arrived sometime in February 1999, and began working on March 1, 1999.
At about the same time, Lee sought employees from Vietnam to work at the Daewoosa Samoa garment factory. He specifically authorized Hee, president of Daewoosa USA, to enter into contracts on behalf of Daewoosa Samoa for this purpose. Hee, in turn, engaged IMS and TC12 to assist in recruiting Vietnamese nationals to work for Daewoosa Samoa. Contract negotiations went back and forth between the parties. IMS and TC12 representatives either traveled to Daewoosa USA headquarters in Korea or Daewoosa USA representatives, Hee and Song Dae Lee, traveled to Vietnam to negotiate and finalize the terms of the contracts for Vietnamese nationals, most of whom now comprise the Vietnamese workers. Daewoosa USA representatives, with IMS and TC12 representatives, screened the prospective Vietnamese applicants identified by IMS and TC12. They eventually recruited more than 250 Vietnamese nationals to work at the Daewoosa Samoa garment factory. Although most of the Vietnamese workers were recruited by either IMS or TC12, approximately 6 Vietnamese workers were independently recruited by Daewoosa Samoa and Lee.
The Vietnamese workers arrived in American Samoa in groups throughout the years 1999 and 2000. Groups of IMS recruited workers arrived on February 8, 1999, March 8, 1999, May 14, 1999, and June 12, 1999. TC12 recmited workers arrived in groups arriving on July 15, 1999, July 19, 1999, July 22, 1999, July 26, 1999, August 3, 1999, August 10, 1999, August 24, 1999, October 1, 1999, January 1, 2000, May 18, 2000, and May 25, 2000. The independently recruited Vietnamese workers arrived on December 20, 1999.
B. Employment Contracts
Both the Chinese workers and Vietnamese workers entered into employment contracts with their prospective employers. Upon then *152arrival in American Samoa, each of the Chinese workers executed contracts with Daewoosa Samoa, which provided eight hour Workdays and S390.007 in monthly basic wages. The contracts also provided Daewoosa Samoa would supply room and board, for which the workers were required to pay a monthly fee of between $100.00 to $150.00.
The Vietnamese workers initially signed individual contracts to work at Daewoosa Samoa with either their respective recruiting agency in Vietnam, or Daewoosa USA. Then, when the workers arrived at the Daewoosa Samoa factory, Daewoosa Samoa attempted to have each Vietnamese worker sign an altered contract. Each IMS recruitee signed a contract with IMS (“IMS-worker contracts”), and each TCI2 recmitee executed an employment contract with TC12 (“TC12-worker contracts”). Each independent worker also entered into individual contracts to work at Daewoosa Samoa as evidenced by an employment contract between one of the independent workers, Ha Thi Huong, and Daewoosa USA (“independent worker-Daewoosa USA contracts”). Another set of contracts that outlined the terms of the TC12 recruited Vietnamese workers’ employment, was executed by TC12, and Hee, on behalf of Daewoosa USA (“TC12-Daewoosa USA contracts”).
Two TC12-Daewoosa USA contracts were entered. The first contract, dated June 6, 1999, concerns the recruitment of 150 “machinists.” The other, dated July 15,1999, involves the employment of 100 “machinists.”
Although Hee’s stamped signature appears on the TC12-Daewoosa USA contracts, and Hee occupied the table at which the formal execution of the contracts took place, Hee incredibly repudiates the use of her signature stamp, or in any way consenting to the agreements. In addition, Hee incredibly disavows any relationship between Daewoosa USA and Daewoosa Samoa. The close affiliation of both corporations was clearly established at trial.
Daewoosa USA directed substantial sums of money, including one payment of at least $20,000, in investments and loans to Daewoosa Samoa. Furthermore, Daewoosa USA acted as the conduit for the Vietnamese workers’ employment, including transferring the workers’ initial fees received from IMS and TCI2 to Daewoosa Samoa. Also, several documents, including the TC12-Daewoosa USA, the independent worker-Daewoosa USA contracts, and Hee’s business card, list Daewoosa USA with Daewoosa Samoa’s American Samoa address, telephone number, and fax number.
*153The terms of the IMS-worker, TCI 2-worker, independent worker-Daewoosa USA, and TC12-Daewoosa USA employment contracts state that the employer will provide the workers’ with free suitable housing and food. The TC12-Daewoosa USA, and the independent worker-Daewoosa USA contracts further allowed for continuous compensation for the workers when work was interrupted for no fault of their own. The IMS workers understood their contracts to include the continuous wage provision.
The TC12-Daewoosa USA contracts further provided an “arbitration” clause. However, rather than the customary interpretation of arbitration, it was understood that the clear meaning of the term “arbitration,” translated from a Vietnamese writing, was judicial resolution of any contract dispute.
At some time after the Vietnamese workers arrived in American Samoa, Daewoosa Samoa attempted to execute yet another contract with each of the Vietnamese workers (“Daewoosa Samoa-worker contracts”). According to Daewoosa Samoa and Lee, the Daewoosa Samoa-worker contracts, written only in English, eliminated Daewoosa Samoa’s responsibility to pay for the workers’ food and lodging, and to compensate the Vietnamese workers when work was interrupted. Some members of the earlier arriving IMS groups had the benefit of a Vietnamese translation of the new contracts and refused to sign them. However, without having any translation in their language, members of the subsequently arriving Vietnamese groups executed the new contracts.
While the workweeks for the Vietnamese workers were similarly expressed in their contracts as 40-hour workweeks, the monthly salaries of some of the Vietnamese workers initially differed. The TC12-worker contracts, and independent worker Daewoosa USA contracts guaranteed each employee monthly wages of $408.00 per month, whereas the IMS-worker contracts provided monthly wages at $390.00 per month. Apparently, these two amounts were premised upon the parties’ mistaken belief that the amounts complied with lawful U.S. minimum wage applicable to American Samoa. In any event, when the IMS recruits received their first paychecks their earnings reflected basic monthly wages of $408.00 rather than $390.00.
The Chinese workers’ contracts and Vietnamese workers’ contracts were similar in some respects. Overtime wages for both the Chinese workers and Vietnamese workers were calculated at 150% of their regular wages and then subjected to a varying deduction. The TC12-Daewoosa USA contracts contain reference to a 50% deduction from the Vietnamese workers’ overtime wages to cover items identified as board, lodging, and security. In practice, however, overtime deductions were applied to the *154foreign Daewoosa Samoa workers across the board. The amount of the overtime deduction was inconsistent and wide-ranging from 40% to 60% of the workers’ overtime pay, resulting in irregular and substantially reduced overtime wages.
It was agreed that payroll deductions of 7.65% and 2% would be taken from the workers wages for the mandatory payment of U.S. Social Security contributions and American Samoa income taxes, respectively. Although Daewoosa Samoa and Lee withheld these amounts from the workers’ salaries, they failed to pay the withheld contributions to the Social Security Administration, or the withheld taxes to ASG except for a short period beginning in January and ending in May 2000.
Prior to employment, the Chinese workers and Vietnamese workers were required to pay their employers substantial initial fees for various purposes. The Chinese workers each paid Daewoosa Samoa and Lee an initial fee of $7,683. Each of the Vietnamese workers recruited by IMS paid IMS $3,000.00, and those recruited by TC12 paid TC12 $4,000.00, portions of which IMS and TCI2, in turn, transferred to Daewoosa Samoa and Lee. Each of the independently recruited Vietnamese workers paid Daewoosa Samoa and Lee, through an independent employment recruiter, approximately $5,000. The monies paid by the workers were said to cover government fees, airfare to American Samoa, a security deposit, and ASG immigration and employment fees. The workers borrowed money for this purpose. At least one Vietnamese worker sold her home to make the requisite payment.
Out of the fees that TC12 collected from the Vietnamese workers, it transferred approximately $450,000.00 to Daewoosa Samoa and Lee for the workers’ deposit, immigration fees, and other miscellaneous fees. Two hundred and fifty thousand dollars was specifically earmarked for the workers’ immigration bonds. However, ASG allowed Daewoosa Samoa and Lee to post a lump-sum immigration bond for all of the workers in the total amount of $ 10,000.
C. Retention of Passports, and TD Cards
Upon their arrival in American Samoa, or soon thereafter, the Chinese workers were required to relinquish their passports and airline tickets to Lee. Similarly, the Vietnamese workers tendered their travel documents and tickets to an IMS or TCI2 representative, if they traveled with one, or to Lee, if they did not. Lee allegedly took these documents for the purpose of immigration processing. However, even after the workers’ immigration papers were completed and their identification cards were issued, Lee continued to retain their travel documents. Up until the time of trial, Lee had not returned at least three Vietnamese workers’ *155passports.
A curfew was enforced on all the Chinese workers and Vietnamese workers. On weekdays, the workers were required to be in the compound before 9:00 p.m On weekends, the curfew was slightly extended to 10:00 p.m. Apparently, the curfew was initiated upon the advice of Daewoosa Samoa’s former counsel, who also happened to be the head of the aumaga, or village police, of the nearby village of Nu'uuli, to have workers return to the compound by these times, corresponding with the nightly Nu'uuli village sa, or curfew. However, at least some workers who violated the curfew were unexpectedly kicked, slapped, or punched by Daewoosa Samoa’s security guards upon returning to the compound.
The workers’ egress from and ingress to the compound was further limited by a Daewoosa Samoa policy requiring each worker to leave their ASG issued identification cards, formally named certificates of alien registration receipt cards, at the compound’s main gate before leaving. As a result, workers remained within the compound fearful of traversing beyond its perimeters without their ID cards on their person, an American Samoa immigration law requirement.
D. TMS and TCI?. Supervision of the Vietnamese Workers
While IMS and TCI2 remained distinctly responsible for their respective recruits, during the summer or fall of 1999 these agencies jointly engaged Chuyen, who had initially been hired by TCI2, to supervise all the Vietnamese workers. In reality, Chuyen served as more than a mere supervisor of the employees.
In an October 23, 2000 letter, the Vietnam government’s Department of Administration of Foreign Labour Force confirmed to Lee that Chuyen served as both the IMS and TCI2 representative in charge of managing the workers sent by both IMS and TCI2 to American Samoa. The letter also delegated Chuyen the authority to discuss and settle the workers’ legal disputes with Daewoosa Samoa and Lee.
Chuyen did more than merely oversee the Vietnamese workers. He was also given broad authority to discipline the workers, including sending regular reports of the workers’ comportment with management policies to IMS and TC12. His reports recommended adverse actions against the workers, including employment suspension or termination. Chuyen’s reports clearly kept IMS and TC12 appraised of all that transpired in American Samoa regarding the Vietnamese workers, including the filing of this lawsuit. At one point in April 2000, TCI2 wrote directly to the Vietnamese workers, instructing them to drop this lawsuit. IMS and *156TC12 also threatened workers or their Vietnam based families with penalties if their protests continued.
Chuyen also served as the communicator between the Vietnamese workers-and Lee. All of Lee’s instructions to the workers were translated through Chuyen. In addition, Chuyen performed other managerial-type duties for Daewoosa Samoa, such as distributing the Vietnamese workers’ paychecks.
E. Living Conditions
The living quarters of -the Chinese workers and Vietnamese workers consisted of approximately eight rooms with an estimated holding capacity of 36 people to each room. The typical room was furnished with two-tiered bunk beds equipped to hold one person per tier. The bunk beds were aligned close to each other in approximately two rows, which rows were opposite each other. A narrow corridor space was provided between the two rows of beds. At any given-time, there were an insufficient number of beds to the number of workers, requiring that two workers share some beds.
Each room was equipped with a shared bathroom facility, consisting of showers and toilets. There were approximately one to two showers, and two to five toilets in each bathroom facility. The showers and toilets were not maintained, and some remained permanently broken. Toilet paper, and hot water were not provided.8
Workers testified that the meals prepared by Daewoosa Samoa and Lee were at times barely edible. The food principally consisted of a starch and a type of vegetable, usually cabbage soup. Fresh vegetables and fruits were not provided. ■ Meat and chicken, or similar food, were not regularly provided, but given in only two to three meals a week.
Dr. Heather Margaret, who' testified as an expert on behalf of the Vietnamese workers, reviewed the nutritional value of the food served the workers. Dr. Margaret holds an M.D. from the Medical College of Pennsylvania, spent most of her medical career practicing family medicine, or comprehensive health care, and is currently employed at the LBJ Tropical Medical Center. After reviewing menus of Daewoosa prepared foods, Dr. Margaret was unable to form an opinion as to the *157nutritional value of meals because the menus did not provide corresponding portion sizes. However, she did opine that the meals failed to meet U.S. Department of Agriculture intake requirements regarding fresh vegetables and fruits because of the total lack of such foods.
F. Payment of Wages
From the outset, the Chinese workers and Vietnamese workers were paid irregularly, and at times were not paid at all.
To the dismay of the Chinese workers, Lee failed to pay them for several months. Finally, sometime in May 1999, the Chinese workers retained an attorney to assist in getting their back earnings paid. In retaliation, Lee refused to allow the workers back to work. It is unclear what then immediately transpired. However, within two months, seven workers returned to work, and the remaining 11 were sent back to China. An accountant computed the pay still owed to the Chinese workers, deriving the hours worked from the workers’ personal diaries or records.
The Vietnamese workers suffered similar experience, all being paid sporadically. However, confusing evidence was adduced at trial regarding the hours that the workers worked, and the payments that they actually received. While an accountant testified as to the Chinese workers’ unpaid wages, compiled from the workers’ detailed records, the Vietnamese workers did not present a similarly comprehensive accounting of their unpaid wages. The Vietnamese workers’ videotaped depositions were admitted into evidence. However, given the lack of any personally kept documentary corroboration, we did not find this evidence very reliable with respect to the number of hours that the workers worked. Also, the videotaped recordings were at times indistinct so that the witnesses’ testimonies could not be reliably discerned. Confusion over the Vietnamese workers’ payroll was further exacerbated when Daewoosa Samoa and Lee delayed producing the requested payroll summaries.
While the late produced payroll summaries provided individualized payroll information on the majority of the Vietnamese class members, summaries for some IMS and TCI2 recruited Vietnamese workers were missing. Furthermore, while it appears that the Vietnamese workers’ agreed with Daewoosa Samoa’s figures as to the amount of wages already paid the workers, the provided summaries conflicted significantly with the Vietnamese workers’ closing argument presentation of the number of regular and overtime hours that they worked. Apparently, the Vietnamese workers’ computation of their regular hours was based on their understanding that they were entitled to compensation for periods of *158time when they did not work, basically entitling them to salary for the length of their stay in American Samoa. The workers’ presentation of the amount of overtime hours worked was less obvious. They presented varying testimonies regarding these horns. Yet, in their closing argument, they utilized the overtime hours recorded by Daewoosa Samoa and Lee to formulate their overtime hours worked, seemingly disregarding their testimonial evidence.
Clearly, there were several periods when the Vietnamese workers did not work. Earlier arriving IMS groups went unpaid for many weeks. By March 27, 1999, tension mounted amongst them, and a confrontation ensued between an uncompromising Lee and a large group of the IMS Vietnamese workers. For two days, March 27 and 28, 1999, the workers refused to work until Lee paid them. In reprisal for striking, Lee refused to feed them. By the third day, Lee provided food and asked them to return to work. The workers refused, insisting that their wages be paid first. When the workers persisted to strike, Lee unsuccessfully attempted to confiscate their ID cards. Insistent that the workers return to work, Lee had the representative workers arrested. They were incarcerated for three days, and eventually returned to Vietnam. It appears that tensions were finally appeased, however, and on April 26, 1999, the Vietnamese workers received their first paychecks of $709.00 for the pay period February 11 through March 27, 1999.
Soon after the Vietnamese workers’ March 1999 strike, in May of 1999, the U.S. Department of Labor began investigating the workers’ allegations of mistreatment. In September 1999, the Secretary of Labor and Lee reached a settlement, requiring that Daewoosa Samoa and Lee compensate workers for sums of up to $2,274 as back wages due for the period October 13, 1998 to May 13, 1999. However, after releasing the employees’ back pay, Lee secretly forced them to return the money. Three Daewoosa Samoa management representatives accompanied at least 20 Vietnamese workers by bus to a local bank to cash their settlement checks. The workers were threatened that they would not be allowed to work if they failed to comply. Four out of the 20 Vietnamese workers relented, and relinquished their cashed earnings back to Daewoosa Samoa. These four were allowed back to work.
Lee continued to restrict the remaining 16 from returning to work until they paid back their settlement proceeds. On December 18, 1999, nine of the 16 workers sought legal advice. Three days later, Lee retaliated and had the nine sent back to Vietnam. By December 21, 1999, all, except one, of the remaining seven returned to work. The one remaining, Nguyen Thi Nga, was not allowed to work until January 29, 2000.
During a brief span, from January through the end of May 2000, *159Daewoosa Samoa entered into an agreement with New Star Trading Co., Ltd. and Jakor Trading Co., Ltd., both of Seoul, Korea to manage the factory operations. During their management tenure, the joint management team regularly paid each worker the agreed upon wage of $408 per month.
Soon thereafter, working conditions at the factory rapidly deteriorated. During the month of June 2000, the Vietnamese workers laid idle, as the factory lay dormant because of a lack of materials. Workers were not paid. Work resumed in July and into August 2000, but the Vietnamese workers were still not paid. In September 2000, again there was no work because of a lack of materials. The workers returned to work in October and November 2000. However, the workers’ paychecks for these months were for insignificant small amounts.
Throughout the time that the Chinese workers and Vietnamese workers were employed at Daewoosa Samoa, Daewoosa Samoa and Lee deducted various amounts from their salaries. Varying amounts were deducted from the workers’ overtime pay. Also, the Chinese workers were charged additional amounts for room and board. Room and board fees were deducted from the Vietnamese workers’ wages as well, notwithstanding the Vietnamese workers’ contract provision providing that accommodations would be free.
On November 28, 2000, after the tragic melee at the factory that resulted in physical injury to several of the Vietnamese workers, including one employee’s loss of an eye, the workers refused to return to work. Weary of endless months of fighting for their basic wages, and frightened of Lee, many of the Vietnamese workers requested that they be returned to Vietnam. Most of the workers departed American Samoa for Vietnam or elsewhere during the period from January to March 2001. Many of the workers returned to their homeland. However, a significant number went to Hawaii and various parts of the continental U.S. under the new federal relief program designed to protect victimized immigrants.
G. Unrelated Death of Two Vietnamese Workers
In August of 2000, Nguyen Thi Nga, and Dung Kim Thi Vu, two IMS recmited Vietnamese workers, who arrived in American Samoa on March 8, 1999, died of drowning during a swimming excursion. Prior to her death, Nguyen Thi Nga remained employed with Daewoosa Samoa. However, as captured in a video taped production of the workers’ experiences at the Daewoosa Samoa factory, Dung Kim Thi Vu explained that she voluntarily left Daewoosa Samoa after 20 days of work. She further explained that Daewoosa Samoa paid her $200.00 for this period.
*160H. Daewoosa Samoa’s Corporate History
Daewoosa Samoa was incorporated in 1994, with its board of directors comprised of Heung Soo Jo as president, Seung Kyu Moon as vice-president and treasurer, and Mary Tulafono as secretary. Lee testified that these three ended their relationship with Daewoosa Samoa at various junctures in 1998 and 1999. Their positions remained vacant until June 2000 when Daewoosa Samoa’s articles of incorporation were amended showing the selection of three new board members. Lee replaced Heung Soo Jo as president, Um Sang Hee replaced Seung Kyu Moon as vice-president and treasurer, and Ui Seuk Jung replaced Mary Tulafono as secretary.
It appears that for the most part, Daewoosa Samoa failed to follow corporate formalities. No organizational meeting was held, no bylaws kept, nor board of directors meetings recorded. In fact, no evidence exists that any board meetings actually took place.
The evidence on Daewoosa Samoas financial condition was equivocal at best. According to Lee, he invested $5 million of his own money in the Daewoosa Samoa corporation.9 Additionally, the company’s November 1999 balance sheet showed assets worth more than $8 million. Although TC12 provided a portion of the Vietnamese workers initial fees, several thousands of dollars, either directly or indirectly to Daewoosa Samoa bank accounts in American Samoa, the company’s bank records evidenced a pattern of negative funding reflecting the use or misuse of funds fromTC12 or other sources.
Discussion
I. Jurisdictional Issues
A. Class Action and Standing
In our April 11, 2000 order, we allowed these consolidated cases to proceed as a class action, and certified the class pursuant to T.C.R.C.P. 23(b)(3). The certification of the class under T.C.R.C.P. 23(b)(3) is appropriate as the “questions of law and fact common to the members of the class predominate over any questions affecting only individual members, and ... a class action is superior to other available methods for *161the fair and efficient adjudication of the controversy.” The adjudication of the Chinese workers and Vietnamese workers unpaid wages may necessarily involve somewhat individualized questions as to damages since each worker was employed for varying lengths of time. However, the common questions in this case predominate. The myriad of civil wrongs alleged against Daewoosa Samoa, Lee, TCI2, and IMS stem from similar employment at the Daewoosa Samoa facility. The Chinese workers shared the same type of contract. For the most part, the Vietnamese workers shared the same type of contract. All workers were uniformly fed and housed at the Daewoosa Samoa compound, and were required to abide by the same working and boarding conditions implemented by Daewoosa Samoa and Lee. In addition, the differences in the measure of damages are not inconsistent with the requirement that in order to maintain a class suit, each plaintiff must recover damages at the same rate. See Kainz v. Anheuser-Busch, Inc., 194 F.2d 737, 741 (7th Cir. 1952).
Initially, while reserving our right to redefine the class, we described the class as all non-Samoan garment workers who presently work and formerly worked at Daewoosa Samoa. The class excluded, and still excludes, all Daewoosa Samoa managers. We now further classify the class into sub-classes, a sub-class of all Chinese workers, and a sub-class of all Vietnamese workers.
The sub-class of Vietnamese workers is further diversified, in that some were recmited by IMS, others were recmited by TCI2, and six were independently recmited by Daewoosa Samoa and Lee. Therefore, for purposes of delineating the responsibility that Daewoosa Samoa, Lee, IMS and TC12 had with respect to the Vietnamese workers that each recmited, we classify the Vietnamese workers’ sub-class into three groups, a sub-class of Vietnamese workers recmited by IMS, a sub-class of Vietnamese workers recmited by TC12, and a sub-class of independently recruited Vietnamese workers. Finally, for purposes of determining class-wide damages for those IMS recmited Vietnamese workers and those TC12 recmited Vietnamese workers for whom Daewoosa Samoa did not provide individualized payroll information, we further classify the IMS recmited Vietnamese workers’ sub-class, and the TC12 recmited Vietnamese workers’ sub-class into groups, corresponding with the date that each group arrived in American Samoa.
IMS group 1 consists of all those Vietnamese workers recmited by IMS that arrived in American Samoa on February 8, 1999. IMS group 2 consists of all those Vietnamese workers recmited by IMS that arrived in American Samoa on March 8, 1999. IMS group 3 consists of all those Vietnamese workers recmited by IMS that arrived in American Samoa on May 14, 1999. IMS group 4 consists of all those Vietnamese workers *162recruited by IMS that arrived in American Samoa on June 12, 1999. TC12 group 1 consists of all those Vietnamese workers recruited by TC12 that arrived in American Samoa on July 15, 1999. TC12 group 2 consists of all those Vietnamese workers recmited by TC12 that arrived in American Samoa on July 19, 1999. TC12 group 3 consists of all those Vietnamese workers recmited by TC12 that arrived in American Samoa on July 22, 1999. TC12 group 4 consists of all those Vietnamese workers recmited by TC12 that arrived in American Samoa on July 26, 1999. TC12 group 5 consists of all those Vietnamese workers recmited by TC12 that arrived in American Samoa on August 3, 1999. TC12 group 6 consists of all those Vietnamese workers recmited by TC12 that arrived in American Samoa on August 10, 1999. TCI2 group 7 consists of all those Vietnamese workers recmited by TCI2 that arrived in American Samoa on August 24, 1999. TCI2 group 8 consists of all those Vietnamese workers recmited by TC12 that arrived in American Samoa on October 1, 1999. TC12 group 9 consists of all those Vietnamese workers recmited by TC12 that arrived in American Samoa on January 1, 2000. TC12 group 10 consists of all those Vietnamese workers recmited by TCI2 that arrived in American Samoa on May 18, 2000. Finally, TC12 group 11 consists of all those Vietnamese workers recruited by TC12 that arrived in American Samoa on May 25, 2000.
In compliance with our April 11, 2000 order, notice of these proceedings was posted at conspicuous locales at the Daewoosa Samoa compound, and the same was mailed to as many off-island workers and former Daewoosa Samoa employees as possible. The notice adequately explained the nature of these proceedings and the requirement that uninterested members of the class must affirmatively opt-out by filing a written exclusion form with the court. Counsel for the Vietnamese workers provided a proper form. To date, the court has received no exclusion request.
B. Jurisdiction over TMS
IMS is a named party defendant to this lawsuit. However, IMS did not answer the amended complaint or otherwise appear at any stage of these proceedings. On December 15, 2000, service of process of the amended complaint, and accompanied summons was made upon Chuyen, the supervising manager of the Vietnamese workers in American Samoa, including those engaged by IMS. The question, therefore, is whether service upon Chuyen sufficiently notified IMS of this pending lawsuit.
Consistent with our constitutional notions of due process, service of process is a notice-giving device. The primary function of the service of process rales is to bring notice of the commencement of an action to a defendant’s attention and to provide a ritual that marks the court’s *163assertion of jurisdiction over the lawsuit. 4 CHARLES ALAN WRIGHT & Arthur P. Miller, federal Practice and Procedure § 1063 (2d ed. 1987) (discussing the function of Fed. R. Civ. P. Rule 4, which is paralleled by T.C.R.C.P. 4) [hereinafter WRIGHT & MILLER],
Although IMS is a government related entity, it is unclear whether IMS is also a corporate entity or unincorporated association, making service appropriate under T.C.R.C.P. 4(d)(3). In 1976, Congress enacted the Jurisdictional Immunities of Foreign States Act (“JIFSA”), 28. U.S.C.A. §§ 1602-1611,10 which contains provisions for the service of process upon foreign governmental instrumentalities and agencies. The JIFSA was enacted to provide access to courts of the United States, its states and territories, for resolution of ordinary legal disputes involving a foreign sovereign, their subdivisions, agents, and instrumentalities. JIFSA § 1602. The JIFSA defines the term “United States” to “[include] all territory and waters, continental or insular, subject to the jurisdiction of the United States.” JIFSA § 1603 (c). Clearly, for the limited purpose of applying the JIFSA in cases before it, this court is a court of the United States, as that term is broadly defined in JIFSA § 1603 (c).
Whichever provision is applicable, both T.C.R.C.P. 4(d)(3) and the JIFSA notice provisions contain similar language allowing service upon an authorized agent of a foreign entity.
T.C.R.C.P. 4(d)(3) provides in pertinent part:
Service shall be made . . . [u]pon a domestic or foreign corporation ... or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to a managing or general agent, or other agent authorized by appointment or by the law to receive service of process.
Similarly, service in accordance with the JIFSA is made upon a foreign state’s agency or instrumentality “if no special arrangement exists, by delivery of a copy of the summons and complaint ... to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process in the United States.” JIFSA § 1608 (b)(2).
Chuyen was the authorized representative for both IMS and TCI2 in American Samoa. He regularly reported to and communicated with IMS *164and TC12 regarding Daewoosa Samoa’s employment of the Vietnamese workers. Moreover, he was specifically entrusted to deal with legal matters that pertained to the Vietnamese workers’ employment, including disputes such as is the subject matter of this lawsuit. Insofar as Chuyen was a general agent for IMS and TCI2, and more specifically authorized to deal with legal matters concerning the subject matter of this litigation, he was an “agent” authorized to receive process on behalf of IMS within the meaning of T.C.R.C.P. 4(d)(3) or JIFSA § 1608(b)(2).
C. Subject Matter Jurisdiction over TCI 2 and TMS
The parties did not raise the question of our jurisdiction to adjudicate and render judgment upon the foreign government-related entities IMS and TC12. However, since a decision rendered without appropriate jurisdiction would not be binding on the parties, and would literally be a waste of judicial time, we address the question of our subject matter jurisdiction over the foreign parties sua sponte.
Under the JIFSA, a court has subject matter jurisdiction to adjudicate suits against foreign government-related agencies so long as the activity concerned is not covered by the JIFSA’s immunity provisions. See JIFSA § 1605. In short, the immunity provisions codify the policy that immunity should be limited to a government’s public or sovereign acts and specific internal agreements, and should not cover private or commercial activities. WRIGHT & MILLER, supra, at § 1111.
The particular JIFSA provision applicable to this case provides that a foreign sovereign is not immune from a court’s jurisdiction in any case “in which the action is based upon a commercial activity carried on in the United States by the foreign state.” JIFSA § 1605(a)(2). This exception requires a two-fold analysis: 1) the alleged conduct must be a commercial activity, in which a private actor could take part; and 2) there must be a nexus between the plaintiffs’ action and the commercial activity. See Velidor v. L/P/G Benghazi, 653 F.2d 812, 820 (3d Cir. 1981) (requiring a nexus between the plaintiffs grievance and the sovereign’s commercial activity).
The claims against IMS and TC12 originate from their role in recruiting, exporting, and employing the Vietnamese workers in a for-profit garment manufacturing company in American Samoa, clearly commercial activity in which a private actor could equally participate. Furthermore, the alleged commercial activity of IMS and TCI2 is the premise of the Vietnamese workers’ lawsuit. The conduct of IMS and TCI 2, if proven, is therefore not excepted by sovereign immunity within the meaning of JIFSA § 1605(a)(2), and both IMS and TC12 would be subject to our jurisdiction.
*165D. TnrisHir.tinn over FT .Si A Claims
Daewoosa Samoa, Lee, and TC12 dispute our jurisdiction to adjudicate the action of the Chinese workers and Vietnamese workers under FLSA § 216(b), claiming that the individual workers’ complaint is precluded by the Secretary of Labor’s complaint under the FLSA in this court, CA No. 2-00.
Employees are provided by FLSA § 216(b) with a civil right of action against any employer who violates FLSA §§ 206(a), 207(a), and 215(a)(3). Additionally, the Secretary of Labor is authorized to sue on behalf of aggrieved employees for injunctive or equitable relief. Bureerong v. Uvawas, 922 F. Supp. 1450, 1464 (C.D. Cal. 1996) (citations omitted). Under this scheme, once the Secretary of Labor files a complaint, FLSA § 216(b) provides that the Secretary’s suit shall take precedence over an employee’s suit. Id.; see also Equal Opportunity Employment Comm’n v. AT&T, 365 F. Supp. 1105, 1120 (E.D.Pa. 1973) (finding Secretary has exclusive right to bring FLSA § 217 action for equitable relief); Wirtz v. W.G. Lockhart Const. Co., 230 F. Supp. 823 (N.D. Ohio 1964) (filing of Secretary’s suit preempts rights of employees to FLSA relief); Wirtz v. Robert E. Bob Adair, Inc., 224 F. Supp. 750, 756 (W.D. Ark. 1963) (filing of the Secretary’s suit terminates the FLSA § 216(b) rights of employee); Jones v. Am. Window Cleaning Corp., 210 F. Supp. 921, 922 (E.D. Va. 1962) (dismissing employee’s suit as precluded by Secretary’s complaint).
The plain language of FLSA § 216(b) clearly limits the preclusive effect of suits filed by the Secretary of Labor to suits he files under the FLSA § 217, a provision that grants federal district courts jurisdiction to restrain FLSA violations. FLSA § 216(b) reads in pertinent part: “The right to bring an action by or on behalf of any employee . . . shall terminate upon the filing of a complaint by the Secretary of Labor in an action under section 217 of [the FLSA]...” Id. (emphasis added).
In enacting this part of § 216 (b), Congress may have intended to prevent employees’ double recovery or protect courts and employers from multiple suits concerning the same subject matter. See Floyd v. Excel Corp., 51 F.Supp. 931, 933-934 (C.D. Ill. 1999).11 However, for whatever reason, Congress clearly intended, as evidenced by the plain language of the statute to limit the preclusive effect of an FLSA suit filed *166by the Secretary to those he files under § 217 or files in a federal district court. If the desired effect of § 216(b) was to preclude all FLSA suits filed by the Secretary, Congress would have surely included such language rather than the limiting language it did employ in the current version of § 216(b).12 Therefore, since the Secretary’s FLSA complaint in CA 2-00 was not filed under § 217, nor within a federal district court, it is within our jurisdiction to adjudicate the action of the Chinese workers and Vietnamese workers under FLSA § 216(b).
E. TMS and TC12 as Employers under the FT.S A
TC12 further argues that it is not subject to the provisions of the FLSA because it is not an employer as defined by FLSA § 203(d). FLSA § 203(d) defines the term “employer” as including “any person acting directly or indirectly in the interest of an employer in relation to an employee . . . but does not include any labor organization (other than when [acting] ... as an employer) or anyone acting in the capacity of officer or agent of such labor organization.”
Consistent with congressional direction, the Supreme Court has instructed courts to interpret the term “employ” in the FLSA expansively. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992); see also Hale v. Arizona, 993 F.2d 1387, 1393 (9th Cir. 1993). The definition has ‘“striking breadth [and] stretches the meaning of ‘employer’ to cover some parties who might not qualify as such under a strict application of traditional agency law principles.” Nationwide Mut., 503 U.S. at 326.
Several factors have been judicially identified to guide the analysis, such as “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Bonette v. Calif. Health and Welfare Agency, 704 F.2d 1465, 1469 (9th Cir. 1983); see also Bureerong, 922 F.2d at 1467; Donovan v. Sureway Cleaners, 656 F.2d 1368, 1370 (9th Cir. 1981) (discussing whether the workers’ service is an integral part of the alleged employer’s business). But see Vanskike v. Peters, 974 F.2d 806, 808 (7th Cir. 1992) (declining to apply Bonette factors in determination of prisoners’ employment status). While these factors provide guidance for the “employer” determination, they are neither exclusive nor conclusive. Bonette, 704 F.2d at 1470.
*167We apply this common-law framework of practical employment circumstances to determine the role IMS and TCI2 had in the employment of the Vietnamese workers. Most significantly, IMS and TCI2 had the power to hire, and wielded an overwhelming power to fire the Vietnamese workers. IMS and TC12 were instrumental in screening, and ultimately selecting the workers. They also had the power to fire the workers, which authority was leveraged with the threat of imposing hefty penalties against fired workers or their Vietnam-based family. The workers and their Vietnam-based families were, in fact, threatened with penalties when IMS and TC12 learned of the Vietnamese workers’ expressed discontentment with their Daewoosa Samoa employment.
IMS and TCI2 utilized Chuyen, and other supervisors, to further control the Vietnamese workers’ everyday work-place situation. Chuyen, who acted as a sort of watchdog over the workers, ensured that the workers continued working regardless of the distressful conditions they faced.
Furthermore, although IMS and TC12 did not pay the workers directly, they were instrumental in determining the Vietnamese workers’ rate of pay, method of payment, and hours of work.
Finally, it appears that IMS and TCI2 maintained employment records, specifically the contracts entered into between the parties. When all of these employment factors are considered in light of the entire employment situation at issue in this case, IMS and TCI2 functioned as employers within the meaning FLSA § 203(d).
F. FT.SA Opt-Tn Requirement
Although the Chinese workers and Vietnamese workers are not precluded by the Secretary of Labor’s filing of CA No. 2-00 from bringing this action under FLSA § 216(b), FLSA § 216(b) explicitly requires that each member of the class of eligible workers affirmatively consent to be a party to the. FLSA action. T.C.R.C.P. 23(b)(3) requires class members to affirmatively “opt-out” of a class action suit. In contrast, FLSA § 216(b) requires employees similarly situated with the named plaintiffs to provide the court with affirmative notice of their intentions to be part of the lawsuit. See D‘Anna v. M/A-COM, Inc., 903 F. Supp. 889, 892 (D. Md. 1995).
A similarly situated employee may “opt in” by filing a written consent with the court where the suit is pending. Id. FLSA § 216(b) does not prescribe a particular format for an employee’s consent to suit, and requires only that the consent must be in writing and filed in the court in which the action is brought. See Kuhn v. Phila. Elec., Co., 475 *168F. Supp. 324 (E.D. Pa. 1979) (notarization not required); Burgett v. Cudahy Co., 361 F. Supp. 617, 622 (D.C. Kan. 1973) (requiring only written consent). For the consent to be “in writing” the employee need only sign the document. See Kulik v. Superior Pipe Specialities Co., 203 F. Supp. 938, 941 (N.D. Ill. 1962).
On January 17, 2001, approximately 168 purported members of the Vietnamese workers’ class filed a signed document demonstrating their consent to bring their FLSA claims. The writing demonstrates the affirmative “opt-in” of those 168 workers. Furthermore, the Chinese workers and Vietnamese workers specifically named as plaintiffs to the suit clearly demonstrate their consent to the FLSA litigation. However, because the FLSA requires an affirmative showing of consent to suit, the failure of other class members to file written consents or be named as plaintiffs in this suit necessarily precludes them from FLSA redress.
II. Liability for FLSA Claims
In enacting the FLSA, Congress intended to create a uniform compensation system for all work or employment engaged in by employees covered by the Act.13
The FLSA provides minimum substantive rights to employees subject to its mandates, which rights may not be waived by agreement. Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 740 (1981). In Barrentine, the Supreme Court reiterated the requisite recognition that the FLSA provides non-waivable baseline employment standards:
This Court’s decisions interpreting the FLSA have frequently emphasized the non-waivable nature of an individual employee’s right to a minimum wage and to overtime pay under the Act. Thus, we have held that FLSA rights cannot be abridged by contract or otherwise waived because this would ‘nullify the purposes’ of the statute and thwart the legislative policies it was designed to effectuate.
450 U.S. at 740 (1981) (citations omitted).
The Chinese workers and the Vietnamese worker contend that their respective employers amongst Daewoosa Samoa, Lee, IMS and TCI2 violated the non-waivable baseline employment standards set out in *169FLSA §§ 206(a) and 207(a), and discriminated against them for raising these issues in violation of FLSA § 215(a)(3). We treat each alleged violation in turn.
A. Minimum Wage Violations
FLSA § 206(a) prescribes that no employee employed in American Samoa may be paid less than American Samoa’s established minimum wage. American Samoa’s effective minimum wage for the garment manufacturing industry, pursuant to the FLSA, was $2.55 an hour between October 27, 1998 through September 19, 2000, and $2.60 an hour from September 20, 2000. See 29 C.F.R. § 697(o)(l).14
The Chinese workers earned $390.00 per month, and the Vietnamese workers earned $408.00 per month. In order to calculate the hourly rate paid, we multiply the monthly salary by 12 to obtain the total pay for the year. The sum is then divided by 52 to obtain the pay per week, which is then divided by 40 hours to determine the hourly rate worked each week. See 29 C.F.R. § 778.113(b); McCloskey & Co. v. Dickinson, 56 A.2d 442, 446 (D.C. App. 1947) (using this method to determine the hourly rate from monthly salary). Under this formula, the contracts in this case allow for an hourly rate clearly below the minimum required for garment factory employees. At $390.00 a month, the hourly rate is $2.25; at $408.00 a month the hourly rate is $2.35.
B. Overtime Wage Violations
Under FLSA § 207(a)(1):
[N]o employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one-half times the regular rate at which he is employed.
Similar provisions are set forth 29 C.F.R. § 778.107, stating:
Overtime must be compensated at a rate not less than one and one-half times the regular rate at which the employee is *170actually employed. The regular rate of pay at which the employee is employed may in no event be less than the statutory minimum.
While employers are free to establish the regular rate of pay, under the overtime provision of FLSA § 207(a)(1), minimum hourly rates established by FLSA § 206 must be respected. Walling v. Younerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945). Thus, in garment manufacturing, overtime must be paid at the rate of one and one-half times the employee’s regular rate of pay, which is, at the very least, American Samoa’s effective minimum wage for the garment manufacturing industry at the time — $ 2.55 an hour between October 27, 1998 through September 19, 2000, and $2.60 an hour from September 20, 2000. Furthermore, any agreed-upon deduction from overtime pay that effectively diminishes such pay below the statutory requirement is invalid. See F. W. Stock & Sons, Inc. v. Thompson, 194 F.2d 493, 497 (6th Cir. 1952) (agreeing to pay for only part of hours worked violates the FLSA and is invalid); see also Donovan v. Brown Equip. and Serv. Tools, Inc., 666 F.2d 148, 152 (5th Cir. 1982); Johnson v. Dierks Lumber & Coal Co., 130 F.2d 115, 118 (5th Cir. 1962); Walling v. Lippold, 72 F. Supp. 339, 346 (D. Neb. 1947); Chepard v. May, 71 F. Supp. 389, 392-93 (S.D.N.Y. 1947).
Because the regular rate of pay of the Chinese workers and Vietnamese workers was the statutorily required minimum wage, they were entitled an overtime rate of one and one-half times the effective minimum wage in accordance with FLSA § 207(a)(1). Therefore, the workers were entitled to an overtime pay rate of $3.83 per hour between October 28, 1998 through September 20, 2000, and $3.90 per hour from September 20, 2000 onwards. Since the employers deducted varying amounts from the workers’ overtime wages, the evidence was inconclusive as to the actual overtime rate of pay the employers utilized to calculate overtime wages. Nonetheless, even if overtime wages were calculated at one and one-half times the effective minimum wage, the employers’ deductions illegally reduced the workers’ overtime wages far below the statutory limit in violation of FLSA § 207(a)(1). The workers are therefore entitled to the difference in the lawful overtime rate and the overtime compensation actually received.
C. Discrimination for Raising Wage Issues
Under FLSA § 215(a)(3), it is unlawful for an employer “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding.”
*171Daewoosa Samoa and Lee, with respect to the Chinese workers and Vietnamese workers, and IMS and TC12, with respect to their recruited Vietnamese workers only, clearly violated FLSA § 215(a)(3). They continuously threatened to discharge and deport workers because they were plaintiffs in this lawsuit. Several workers were, in fact, terminated from employment and sent back to their homelands because they actively participated in pursuing their rights under the FLSA.
D. FLSA Damages
FLSA § 216(b) explicitly affords aggrieved employees comprehensive redress, including but not limited to back-wages, attorneys’ fees, costs, and liquidated damages.
Liquidated damages of an amount equal to unpaid minimum and overtime wages are recoverable against an employer, unless there is evidence that an employer acted in good faith and attempted to comply with FLSA requirements. An employer’s knowledge that an employee might be covered by the FLSA, and failure to further inquire into the status of that employee is sufficient to establish the employer’s lack of good faith. See 29 C.F.R. § 790.15; see also Bankston v. Illinois, 60 F.3d 1249, 1255 (7th Cir. 1995).
Daewoosa Samoa and Lee, with respect to the Chinese workers and Vietnamese workers, and IMS and TC12, with respect to the majority of the Vietnamese workers, knew or had reason to know that the workers were being paid in violation of the law, but failed to make a good faith effort to comply with the law. Even if Daewoosa Samoa, Lee, IMS and TC12 erroneously believed that the Vietnamese workers’ contractual monthly wage was in compliance with the FLSA minimum wage requirements, having allegedly premised the contractual monthly wage of $408.00 by multiplying the minimum wage of $2.55 by a four week month working 40 hours per week, there is no similar explanation for the calculation of or deductions from the workers’ overtime wage. Furthermore, Daewoosa Samoa, Lee, IMS, and TCI2 were at least on constructive notice that the validity of the workers’ regular and overtime wages was questionable and potentially in non-compliance with wage law when the Department of Labor began investigating Daewoosa Samoa’s operations as early as May 1999. At that time, Daewoosa Samoa, Lee, IMS, and TCI2 actually knew of the conditions at the factory, and their failure to pay the workers’ lawful wages. However, rather than inquire about or rectify the situation, they threatened the workers to continue working under the same conditions or suffer certain consequences. More specifically, Daewoosa Samoa and Lee defiantly forced workers to return Department of Labor assisted settlement monies, or suffer termination or deportation.
*172III. Specific Liability Issues
A. Thñ General Context of the Workers’ Claims
The Chinese workers assert that Daewoosa Samoa and Lee breached the terms of their bargained-for employment contracts by charging illegal initial fees, and failing to pay lawful standard and overtime wages. The Vietnamese workers’ claims are twofold. First, the IMS-recruited Vietnamese workers, and the TC12-recruited workers claim that Daewoosa Samoa, Lee, IMS, and TCI2 jointly employed them under terms of their employment contracts. Secondly, all the Vietnamese workers allege that their respective employers charged them illegal initial fees, failed to continuously pay lawful basic wages when work was interrupted, improperly charged them for room and board, and failed to pay them their legal wages.
B. Choice of Law
As a threshold matter, since the contracts were negotiated, contracted, and performed in various jurisdictions, we must determine whether the law of Vietnam, Korea, China, or American Samoa governs the interpretation of the various contracts at issue. Absent the parties’ agreement on the governing law, or an American Samoa statutory or common-law choice of law standard, we turn to common law generally to provide guidance in determining the choice of law applicable to the contracts at issue.
The Restatement (Second) of Conflict of Laws § 196 (1971) codifies U.S. common law and provides a standard to determine the governing law for interpretation of contracts for the rendition of services. It states in pertinent part:
§ 196 Contract for the Rendition of Services
The validity of a contract for the rendition of services and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the local law of the state where the contract requires that the services, or a major portion of the services, be rendered, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.15
*173As stated, the general rale is that the law of the place of performance governs the interpretation of a contract for services, and will only be trumped if another state has a more significant relationship with the transaction or parties as set forth in § 6. Id.
In this case, the parties explicitly agreed that performance of the three-year employment contracts was to take place entirely at the Daewoosa Samoa factory principally located in American Samoa. In fact, the Chinese workers and Vietnamese workers rendered their services under file employment contracts at issue entirely in American Samoa. Although the parties hail from China, Vietnam, and Korea, and some of the contracts were initially negotiated in these various countries, such contacts do not override the contacts that American Samoa had with the transaction and parties, as the place of contract performance. Accordingly, since services were rendered in American Samoa, and no other jurisdiction has more significant contacts with the transaction and the parties in the case, we find that American Samoa law applies to interpret the various contracts at issue in this case.
C. Lee’s Individual liability
Although a corporate officer or owner is normally not subject to personal liability for the acts of the corporation, this corporate shroud of protection from liability may be pierced, and the corporate officer or owner held personally liable for the conduct of the corporation if the corporation is nothing more than his alter ego.
A party is an alter ego of a corporation when:
*174[T]here is such a unity of interest and ownership that the individuality, or separateness, of said person and corporation has ceased . . . [and] the facts are such that an adherence to the fiction of the separate existence of the corporation would, under the particular circumstances, sanction a fraud or promote injustice.
Amerika Samoa Bank v. Adams, 22 A.S.R.2d 38 (Trial Div. 1992) (quoting Minifie v. Rowley, 202 P. 673, 676 (Cal. 1921)). The applied effect of the alter ego doctrine treats the corporation and the dominating person as one person, so that any act committed by one is attributed to both, and if either is bound, by contract, judgment, or otherwise, both are equally bound. See also Dudley v. Smith, 504 F.2d 979, 982 (5th Cir. 1974) (citing Shamrock Oil v. Gas Co. v. Ethridge, 159 F. Supp. 693, 697 (D. Colo. 1958)).
Lee clearly acted as Daewoosa Samoa’s alter ego. Lee was the sole real shareholder and owner of Daewoosa Samoa during the majority of the time in question. He did not adhere to corporate formalities, except for one late and hurried attempt to distribute shares for substantially limited amounts. He clearly siphoned off corporate funds for his own use, leaving the corporate bank accounts too barren to meet employee payroll and other corporate expenses. In sum, adherence to the fiction of a separate existence between Lee and Daewoosa Samoa would promote injustice under the particular circumstances of this case.
D. TTVTS and TCI 2 as Joint F.mployers of the Vietnamese Workers
The IMS and TC12-recmited Vietnamese workers contend that IMS and TC12 were their joint employers with Daewoosa Samoa and Lee raider the terms of the IMS-worker contracts, TCI 2-worker contracts, and TC12-Daewoosa contracts, and therefore, are jointly responsible with Daewoosa Samoa and Lee to pay for their contractually agreed upon wages. TC12 opposes the workers’ claim, arguing that it functioned merely as a go-between or broker responsible for securing the Vietnamese workers’ employment with Daewoosa Samoa and Lee, not an employer.
To determine whether an employment relationship exists between two parties we must look beyond the terms of the contract. See Todd v. Benal Concrete Constr. Co., 710 F.2d 581, 584 (9th Cir. 1983) (“[contractual language alone cannot transform a contractor/ independent contractor relationship into an employer/employee relationship”); see also Adele’s Housekeeping v. Dep't of Employment Sec., 757 P.2d 480, 483 (Utah Ct. App. 1988) (citing Singer Sewing *175Mach. Co. v. Indus. Comm'n, 134 P.2d 479 (Utah 1943)) (looking beyond the contract to determine whether an employer/employee relationship exists). Rather, the traditional common-law rule focuses the inquiry on the alleged employer’s degree of control over the alleged employee. See generally Mares v. Marsh, 777 F.2d 1066 (5th Cir. 1985) (Title VII case); Ill. Conf. of Teamsters and Employers Welfare Fund v. Mrowicki, 44 F.3d 451 (7th Cir. 1994) (stating common law test as premised on alleged employer’s right to control).
IMS and TCI2 acted as more than mere brokers responsible for seeming the employment of their respective groups of Vietnamese workers, and functioned as employers of these workers for purposes of the workers’ employment at the Daewoosa Samoa garment-manufacturing factory. We reiterate that IMS and TC12 exerted significant control over their workers’ employment situation, including but not limited to, the hiring and firing of the workers. Furthermore, IMS and TCI2 controlled the everyday workplace activities of the workers by employing Chuyen, and other supervisors to oversee the workers’ employment, supervision that was all encompassing.
E. Rreach for Charging the Vietnamese Workers Room and Board; Discontinuing Wage Payments
Unlike the employment of the Chinese workers unquestionably detailed in a single set of contracts executed upon the workers arrival in American Samoa, the Vietnamese workers’ employment is enumerated in several separate sets of contracts. According to the IMS-worker contracts executed by some Vietnamese workers and IMS, the TC12-worker contracts executed by some Vietnamese workers and TC12, the independent worker-Daewoosa USA contracts executed by other Vietnamese workers, and the TC12-Daewoosa USA contracts signed by TC12 and Daewoosa USA, the Vietnamese workers were to be provided with free suitable room and board. Additionally, the workers understood that these contracts provided that they would be paid continuous basic wages regardless of the lack of work. In contrast, the Daewoosa Samoa-worker contracts, which Lee attempted to have all the Vietnamese workers execute, excluded these terms.
Daewoosa Samoa, Lee, and TCI2 do not dispute the language of the contracts, nor their interpretation by the Vietnamese workers. Instead, Daewoosa Samoa, and Lee contend that they did not assent to employment terms providing free room and board, and continuous pay, nor authorized IMS, TC12, or Daewoosa USA to agree to such terms. Daewoosa Samoa and Lee urge that the Daewoosa Samoa-worker contracts, apparently excluding the free room and board and continuous salary provisions, evidence the bargained-for agreement between the *176parties.
The well-established rule derived from the basic structure of agency law provides that a principal will be bound and liable for the acts of his agent performed with actual or apparent authority from the principal, and within the scope of the agent’s employment. See Hoffman v. John Hancock Mut. Life Ins. Co., 92 U.S. 161, 164 (1875) (an agent’s act performed within the sphere of the authority conferred is as binding upon the principal as if it had been done by the principal himself).
Daewoosa Samoa and Lee clearly authorized IMS, TC12, and Daewoosa USA to recruit labor for its garment manufacturing factory operations. Therefore, the contracts entered into by these entities for that purpose are binding upon Daewoosa Samoa as if Daewoosa Samoa entered into them on its own account. Even if the contracts were unauthorized, Daewoosa Samoa and Lee ratified the contracts by subsequently accepting the Vietnamese workers for employment, thus manifesting their assent to the agreements. See generally RESTATEMENT (SECOND) OF AGENCY § 83 (1958).
Any argument that the Daewoosa Samoa-worker contracts validly amended the IMS-worker, TCI 2-worker, independent worker Daewoosa USA, and TC12-Daewoosa USA contracts is also flawed, where there was no consideration for any such amendment. In fact, the Daewoosa Samoa-worker contracts appear glaringly unconscionable where Daewoosa Samoa induced non-English speaking workers to sign amended English written contracts, without the benefit of a translation, and offered the workers no consideration for excluding the previously promised benefits. See Dev. Bank of Am. Samoa v. Ilalio, 5 A.S.R.2d 110, 122 (Trial Div. 1987) (voiding contract as unconscionable for offering grossly inadequate consideration).
We therefore hold that, rather than the Daewoosa-worker contracts, the IMS-worker contracts, TCI 2-worker contracts, independent worker-Daewoosa USA, and TC12-Daewoosa USA contracts reflect the bargained-for agreement between the Vietnamese workers and their respective employers. As evidenced from the plain language of the contracts, and the testimony of the workers, the agreements provide that these Vietnamese workers should receive free room and board, and continuous wages regardless of the lack of work. Daewoosa Samoa, Lee, IMS, and TCI2 breached both of these terms by charging the Vietnamese workers various fees for room and board, and failing to pay them when work was interrupted.
*177F. Breach of Contract for Back Wages
The Chinese and Vietnamese workers allege, as an additional basis to the FLSA for the payment of unpaid wages, that Daewoosa Samoa, Lee, with respect to the Chinese and Vietnamese workers, and they together with IMS, and TCI2, with respect to the IMS and TC12-recruited Vietnamese workers, breached the terms of their respective contracts regarding their salary and overtime payments.
The contract terms covering the wage and overtime payments to the Chinese workers and Vietnamese workers illegally fall below the floor established by FLSA §§ 206 and 207(a)(1). However, rather than entirely invalidate the contracts at issue in this case for containing terms contrary to the FLSA, we are empowered to modify the illegal contract terms to make them conform to the law. See Am. Samoa Gov’t v. Samoa Aviation, Inc. (Hem), 13 A.S.R.2d 65, 67 (Trial Div. 1989); see also Ilalio, 5 A.S.R.2d at 110 (stating that court has option to refuse to enforce the contract, enforce the remainder of the contract without the unconscionable provisions, or so limit the application of the unconscionable provisions as to avoid any unconscionable result); see generally RESTATEMENT (SECOND) OF CONTRACTS § 208 (1981). Therefore, to validate these contracts, we replace the minimum and overtime wage provisions of the contracts for the Chinese workers and Vietnamese workers with the baseline wage and overtime requirements of FLSA §§ 206 and 207(a)(1). See generally Nw. Yeast Co. v. Broutin, 133 F.2d 628 (6th Cir. 1943); Fletcher v. Grinnell Bros., 64 F. Supp. 778 (E.D. Mich. 1946); Adair v. Ferst, 45 F. Supp. 824 (N.D. Ga. 1942) (stating that employee covered by FLSA is a creditor of his employer for any unpaid portion of the minimum wage regardless of any agreement between the parties).
As stated in the FLSA discussion, pursuant to FLSA § 206, the employers were required to pay the Chinese workers and Vietnamese workers engaged in garment manufacturing in American Samoa an hourly minimum wage of $2.55 from October 27, 1998 through September 19, 2000, and $2.60 per.hour from September 20, 2000. Also, FLSA § 207(a)(1) required that each garment worker be paid overtime wages at a rate of $3.83 per hour from October 27, 1998 through September 19, 2000, and $3.90 per hour from September 20, 2000. However, contrary to these FLSA provisions, and in conspicuous breach of the employment agreements, the Chinese workers and Vietnamese workers received hourly wages of only $2.25, and $2.35, respectively. Additionally, the contracts of the Chinese workers and Vietnamese workers allowed for deductions from overtime wages, bringing these wages below that prescribed by FLSA § 207(a)(1). Accordingly, in order to compensate the Chinese workers and *178Vietnamese workers for the breach of their contracts, the employers must reimburse them for the difference in the hourly and overtime wages earned and those actually paid.
G. Breach of Contract for Charging Illegal Initial Fees
The Chinese workers and Vietnamese workers Anther contend that the employers breached their employment contracts by charging the workers illegal initial fees. As a condition of each worker’s employment at the Daewoosa Samoa factory, each worker was required to pay exorbitant initial fees, ranging from $3,000.00 to $7,683.00, allegedly to pay a security deposit, the workers’ airfare, and various government fees or taxes.
We reiterate that we are empowered to modify an illegal contract term without invalidating the entire contract. See Samoa Aviation, Inc., 13 A.S.R.2d at 67. The contract requirement that the Chinese workers and Vietnamese workers pay sums of money up front was clearly an illegal ploy to defraud the workers and their families of their money, and obligate the workers to the term of their employment contracts or suffer loss of the fees, and deposit. Though already essentially destitute, the workers and their families were further impoverished in their attempts to secure the requisite funds, doing it nevertheless for the promise of employment in American Samoa. However, the employers never provided the Chinese workers and Vietnamese workers their promised-for employment. Instead, the workers lived in substandard conditions, went underpaid for months, and on one occasion at least some workers were unfed for at least two days. Accordingly, the contract clause requiring that the workers pay varying initial fees is invalid and must be struck from the contracts, and the employers are responsible to reimburse their respective workers these monies.
IV. Computation of Back Wages
The availability of individualized payroll evidence for all of the Chinese workers, and the majority of the Vietnamese workers make individual back pay and liquidated damages awards possible as to these workers. However, because individual awards for those Vietnamese workers for whom payroll summaries were not provided are unascertainable, class-wide awards are provided for such workers. An individualized remedy should be utilized when possible because it will compensate the claimants without unfairly penalizing the employer. Stewart v. Gen. Motors Corp., 542 F.2d 445, 452 (7th Cir. 1976) (citing United States v. United States Steel Corp., 520 F.2d 1043, 1055 (5th Cir. 1975)) (awarding individualized and class-wide Title VII back pay awards).
*179A. Chinese Workers’ Individual Rack Wages
Rather than utilizing the monthly wage rate of $390.00 per month, the Chinese workers’ accountant determined the amount of regular and overtime wages owed, less deductions for FICA contributions, ASG income taxes, and less any payments already received.16 We accept the accountant’s calculation of the Chinese workers’ back-wages. Although Daewoosa Samoa submitted payroll summaries regarding the Chinese workers back wages, we find the calculations of the Chinese workers’ accountant more credible. The Chinese workers’ accountant premised his report upon the diaries and records of the individual workers, and Daewoosa Samoa admitted to owing equivalent amounts at least prior to June 24, 1999.17
B. Vietnamese Workers’ Individual Back Wages
At trial, Daewoosa Samoa and Lee submitted payroll summaries regarding the amounts owed the Vietnamese workers. These figures contrasted significantly with the Vietnamese workers’ analysis in closing arguments. We are reluctant to wholeheartedly accept either side’s summaries of the back wages owed the Vietnamese workers for several reasons.
The Vietnamese workers’ summary was not presented as evidence at trial, thereby depriving Daewoosa Samoa, Lee, and TCI2 the benefit of cross-examination. For example, as TC12 accurately points out, some of the Vietnamese workers’ mathematical calculations as to the number of months within a given range of months are in error, a point that would have been best brought to light and fully examined during the trial.
On the other hand, while the employers’ records appear to be the best evidence available regarding certain amounts, Daewoosa’s records are otherwise inaccurate with regards to the regular hours worked by the Vietnamese workers. They deducted amounts for room and board in violation of these workers’ agreements. Furthermore, they failed to calculate the time that the Vietnamese workers lay idle.
As discussed earlier, the Vietnamese workers’ are contractually entitled *180to be compensated for their idle time if there is no work for no fault of their own. The weight of the evidence indicates that the Vietnamese workers would have worked the entire time that they were in American Samoa but for the unavailability of work caused by the employers. The times that the Vietnamese workers lay idle were caused by either factory shutdowns or the employers’ failure to pay them. The Vietnamese workers are therefore entitled to be compensated their regular wage for this idle time.
Accordingly, we calculated the total amount of basic wages the Vietnamese workers earned based upon the total amount of regular working days that each such worker spent in American Samoa.18 We multiplied this time by the relevant legal minimum rate to arrive at the gross amount of regular wages earned.
Given the substantial inconsistencies between the overtime records and the Vietnamese workers’ testimony, and the varying deductions from overtime earnings taken by their employers, owed overtime wages are more difficult to determine. Nonetheless, utilizing payroll records submitted by Daewoosa Samoa and Lee, we were able to determine the amount of overtime wages owed the Vietnamese workers. Without better contrary evidence, we find that these hours are the best evidence of the overtime hours worked. Using these provided numbers, we derived the total amount of overtime wages earned by multiplying the total amount of overtime hours presented by Daewoosa Samoa and Lee by the applicable overtime rate.
We then determined the total amount of owed back wages by deducting the applicable FICA contributions and ASG income taxes, and the *181amount the Vietnamese workers received from the gross amount earned.
C. Class-wide Rack Pay and liquidated Damages
Individual back pay awards were unidentifiable for members of the IMS-recruited and TC12-recruited Vietnamese workers’ classes for whom Daewoosa Samoa and Lee failed to submit payroll summaries. Therefore, we must utilize a class-wide method to ascertain these workers’ damages. Although a class-wide method of computing back wages is basically an estimation that oftentimes results in unequal awards, creating a windfall for some, and under-compensating others, “[a]ny method is simply a process of conjectures.” Stewart, 542 F.2d at 453 (citing Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 261 (5th Cir. 1974)). An estimate of the measure of damages is better than no damages at all. Id.
The amount of total regular wages for each unidentified IMS-recruited Vietnamese worker and each unidentified TC12-recruited Vietnamese worker is ascertainable based on the amount of time that they spent in American Samoa. Furthermore, since it appears that these workers worked and were compensated at approximately the same rate as those identified Vietnamese workers, we derived an estimation of overtime wages and payments received for each unidentified Vietnamese worker by calculating the average overtime earned and payments received of the named and identifiable members of each corresponding IMS-recruited Vietnamese worker’s group or TC12-recruited Vietnamese worker’s group. Using the same formula utilized to derive the named and identifiable workers’ individualized awards, we determined each unidentified workers’ back pay by deducting FICA contributions, ASG taxes, and payments received from the total regular and overtime wages earned.
VI. Other Related Claims
A. NRT.B Exclusive Jurisdiction Tssue
Before dealing with the merits of the Vietnamese workers’ other related claims, we first discuss TC12’s contention that the overall theme of these claims falls outside our jurisdiction because they are directly within the exclusive jurisdiction of the Labor Relations Management Board (“NLRB”). See Labor Mgm’t Relations Act, 1947, 29 LT.S.C.A. § 141 et seq. TC12 cites the case of Suki v. Star Kist Samoa, Inc., 4 A.S.R.2d 135 (Trial Div. 1987), as authority for its proposition that the workers’ discrimination and related claims are within the NLRB’s exclusive jurisdiction.
*182In Suki, the court held that the NLRB exercised exclusive jurisdiction over unfair labor practice complaints filed in the High Court of American Samoa if they were within the NLRB’s jurisdiction, and the NLRB had not declined jurisdiction. See generally id. The court dismissed for lack of jurisdiction the employee’s claim of work-place discrimination for attempting to organize a labor union finding that “[ejmployment discrimination on account of union activity is perhaps the single most obvious example of conduct committed to the regulatory authority of the NLRB.” Id. at 137. However, unlike the claim presented in Suki, the resolution of employees’ assorted claims are not related to any foiled attempt to organize a labor union, and are not otherwise specifically reserved to the NLRB’s jurisdiction. Therefore, these claims remain within our jurisdiction.
B. Substandard Room and Board
The Chinese workers and Vietnamese workers contend that Daewoosa Samoa and Lee failed to provide them with adequate housing and food as promised in their employment contracts. Daewoosa Samoa and Lee admit that they owe the workers a duty to provide them with suitable housing and nutritional meals. However, they contend that the provided lodging and food satisfied their contractual obligations.
It is clear that the housing and meals at the Daewoosa facility fell short of Daewoosa Samoa and Lee’s representations, and the workers’ expectations. The rooms were overcrowded, and the bathroom facilities inadequate and ill-equipped. In addition, the workers’ meals did not meet the asserted standard for nutritional food set forth by the United States Department of Agriculture (“USDA”) nutritional guidelines. The USDA Food and Nutrition Center recommends a daily intake of and variety from the five basic food groups: 1) carbohydrates; 2) vegetables; 3) fruits; 4) dairy products; and 5) protein.19
Dr. Margaret credibly explained that Daewoosa Samoa and Lee did not comply with these basic guidelines by failing to provide fresh vegetables and fruits in the workers’ daily meals. Although Dr. Margaret was unable to determine whether the meals satisfied other USDA nutritional requirements, evidence elicited from the workers suggested that the meals were overall below USDA standards.
In addition to our finding that the Vietnamese workers are contractually entitled to free room and board, we further find that due to *183the substandard quality of the Daewoosa provided meals and accommodations, none of the boarding workers, including the Chinese workers, should be required to pay for such accommodations. In addition, the Chinese workers, and Vietnamese workers are entitled to compensation for being subjected to such poor living conditions in the amount of $1,500 each.
C. Withholding of Passports and Identification Cards
The Chinese workers and Vietnamese workers also assert that Daewoosa Samoa and Lee illegally withheld their passports and certificate of alien registration receipt cards. Daewoosa Samoa and Lee argue thatthey held on to the workers’ passports and other identification documents for immigration processing purposes.
A passport, or any other document purporting to show one’s identity, is perhaps one’s most personal possession, especially sacred'to one traveling to a foreign country. In addition, American Samoa law requires that every alien carry their registration card on their person at all times. According to A.S.C.A. § 41.0310(a), “[e]very alien... shall at all times carry with him and have in his personal possession any certificate of alien registration receipt card issued him.” Id. (emphasis added). Failure to comply with A.S.C.A. § 41.0310 subjects the registered alien to criminal penalty, a $500 fine, or, for most aliens the worst consequence, deportation. See A.S.C.A. § 41.0310(b)-(c).
Rather than taking the workers’ identification documents to further any immigration purpose, it is apparent that Daewoosa Samoa and Lee illegally maintained workers’ passports, and registration cards, without any legal right, and as a means of limiting the workers’ egress and ingress from the compound. For this transgression, the Chinese workers and Vietnamese workers are entitled to compensation in the amount of $1,000 each.
D. Returning Workers to China and Vietnam
The workers allege that Daewoosa Samoa and Lee violated their due process rights under the Revised Constitution of American Samoa Article I § 2, by having them deported without an opportunity to consult an attorney or have a deportation hearing. The workers provide no legal premise for holding a private employer subject to the Article I § 2 due process requirement, and without such an explanation their due process claim necessarily fails.
The workers also claim that Daewoosa Samoa and Lee violated an alleged statutory right under A.S.C.A. § 41.0408(i) to remain in *184American Samoa- for up to 10 days after the revocation- of their sponsorship. • \ :
When read in its entirety, A.S..C.A. ‘§ -41.0408(i) governs , the conduct of the immigration board,-which is empowered with the authority to deport, not the alien’s sponsor or employer.- While a sponsor or employer may be instrumental in initiating the process of deportation by revoking sponsorship or terminating employment, it-is .ultimately the immigration board that makes the finding of deportation. Furthermore, the immigration.laws allow an alien worker’s sponsor almost .unlimited discretion to revoke sponsorship, the only requirement being that the sponsor provide written notice to the immigration board and the person sponsored of his or her intent to end the alien’s sponsorship. See A.S.C.A. § 41.0408(g).20 We, therefore, cannot find that Daewoosa Samoa and Lee, or any other employer defendant, violated any right allegedly granted aliens under A.S.C.A § 41.0408(i).
VTL Indemnification :
TCI2 asserts that Daewoosa Samba and Lee are liable to reimburse TC12 approximately $450,000.00, the portion of the initial fees-collected by TCI2 from' the recruited Vietnamese workers and transferred by TCI2 to Daewoosa Samoa ahd Lee. Basically, TC12 requests that Daewoosa Samoa and Lee indemnify it an amount of the initial fees for which we have found them jointly and severally liable.
Admittedly, a large portion of the money TCI2 gave Daewoosa Samoa and Lee was • earmarked to pay for the Vietnamese workers’ individual immigration; bonds, for- which Daewoosa Samoa and Lee posted only a lump-sum immigration bond in the amount of $10,000. However, as discussed in a previous section, the contract requirement that the Vietnamese workers pay initial fees, and, for purposes of this discussion, that the TC12-recruited Vietnamese workers pay initial fees, in the first instance, was unlawful as an unconscionable contract clause. “Generally, a contract to -indemnify -against the consequences of a wrongful act, or a contract of indemnify growing immediately out of, and connected with, an illegal or immoral act is void and will not be enforced by a court of justice.” 41 Am. JUR; 2d Indemnity § 11 (1995); see also Kansas City Operating Corp. v. Durwood, 278 F.2d. 354, 359 (8th Cir. 1960); 8 Samuel Williston et al., A Treatise on the . Law of *185Contracts § 19:18 (4th ed. 1998). Because TC12 together with Daewoosa Samoa and Lee were joint parties tó the unlawful contract clause requiring that the Vietnamese workers pay initial fees, we leave them as we find them, and accordingly, we refuse to enforce any implied right of indemnification as between TCI2 and Daewoosa Samoa and Lee.
Order
A. IndividuaLBack-Wages and liquidated Damages
1. Chinese Workers. Daewoosa Samoa, and Lee are jointly and severally liable to remunerate the Chinese workers listed back wages and an equal amount as liquidated damages as indicated in the “Total Owed to the Chinese Workers” column in the following table. In addition, Daewoosa Samoa, and Lee shall pay the applicable federal and ASG government agencies the amounts deducted from eách Chinese workers’ earned income respectively for FICA withholdings and ASG taxes, except for those amounts already paid during the Spring of 2000.
[[Image here]]
grQW.ll...
Jiang Shunahe £13.225.41 £1.011.74 £264.51 £7.937.38 £4.011.78 £4.011.78 £8023.56
Zheng Wude £13.225.41 £1.011.74 £264.51 £0.00 £11.949.16 £11.949.16 £23.898.32
Li Chengnui £17.679.15 £1.352.45 £353.83 £9.722.99 £6.299.88 £6.299.88 £12.599.76
Jin Chungfen £13.225.41 £1.011.74 £264.51 £0.00 £11.949.16 £11.949.16 £23.898.32
Li Jin Hao £13.225.41 £1.011.74 £264.51 £0.00 £11.949.16 £11.949.16 £23.898.32
Bai Huiguo £13.225.41 £1.011.74 £264.51 £7.764.99 £4.184.17 £4.184.17 £8368.32
Z. Yuandou £17.679.15 £1.352.45 £353.83 £9.724.69 £6.248.18 £6.248.18 £12.496.36
Ju Dongming £13.225.41 £1.011.74 £264.51 £9.229.87 £2.719.29 £2.719.29 £5.438.58
Li Huxie £13.225.41 £1.011.74 £264.51 £0.00 £11.949.78 £11.949.78 £23.898.32
PiaoYingiun £13.225,41 £1.011.74 £264.51 £0.00 £11.949.78 £11.949.78 £23.898.32
P. Chenghuan £13.225.41 £1.011.74 £264.51 £0.00 £11.949.78 £11.949.78 £23.898.32
Piao Rilnng £13.225.41 £1.011.74 £264.51 £0.00 £11.949.78 £11.949.78 £23,898.32
Z. Liangho £13.225.41 £1.011.74 £264.51 £7.878.91 £4.070.25 £4.070 25 £8,140.50
Groun 2
Lu Yingzhe £10.725.30 £820.49 £214.51 £0.00 £9.690.30 £9.690.30 £19.380.60
Jin Mingzhen £10.725.30 £820.49 £214.51 £0.00 £9.690.30 £9.690.30 £19.380.60
Tan Zhen £10.725.30 £820.49 £214.51 £7.271.73 £2.418.57 £2.418.57 £4.837.14
K. Donghuan £10.725.30 £820.49 £214.51 £0.00 £9.690.30 £9.690.30 £19.380.60
Lu Zhan Zhi £10.725.30 £820.49 £214.51 £0.00 £9.690.30 £9.690.30 £19.380.60
2. IMS Recruited Vietnamese Workers. Daewoosa Samoa, Lee, and IMS are jointly and severally liable to pay each IMS recruited Vietnamese worker back wages, and, if opted-in, an equal amount as liquidated damages as indicated in the “Total Owed to IMS Workers” column in the following table. In addition, Daewoosa Samoa, Lee, and IMS shall pay the applicable federal and ASG government agencies the amounts deducted from each IMS recruited Vietnamese workers’ earned *186income respectively for FICA withholdings and ASG taxes, .except for those amounts already paid during the Spring of 2000.
[[Image here]]
IM$ Group. L
Nguven T Chat «12.514.74 .«957.38 $250.29 $5.844.57 $5.462.49 $5.537.77 $11.000.26
Nguyen T.M. Phuong $12,726.58 $973.58 $254.53 $6,120.13 $5,378.33 $5,378.33 $10,756.66
Vu T. Hong $12.491.90 $955.63 $249.84 $5.179.62 $6.106.81 $6.106.81 $12.213,61
Nguven T. Phuong $12.366.63 $946.05 $247.33 $5.611.02 $5,562.23 No Opt-In $5.562.23
Le Bich Thuv $13.224.65 $1.011.69 $264.49 $7.758.39 $4.190.08 No Opt-In $4.190.08
Trinh Thi Hao $12.835,21 $981.89 $256.70 $8.180.05 $3.416.56 $3.416,56 $6.833,12
Thinh T. Oanh $12.579.02 $962.29 $251.58 $6.183.78 $5.181.36 NO OPT-IN $5.181.36
Do Thi Gam $12.386.43 $947.56 $247.73 $7.705.96 $3.485.18 $3.485.18 $6.970.36
IMS Group 2
Nguven T. Nea* $10,595,54 $810.56 $211,91 $3.373.90 $6.199.17 $6,199.17 $12.398,33
Vu Thi Sim $12.112.48 $926.60 $242.25 $7.311.93 $3.631.70 $3.631.70 $7.263.39
Hoang T.H. Minli $12.388,42 $947.71 $247.77 $7.250.89 $3,942.04. $3.942.04 $7.884,09
IMS Group 3
Nguven T. M. Phu $11.157,94 $853.58 $223.16 $6.735.95 $3.345.25 No Opt-In $3.345.25
Ta T. H. Tuvet $11.109.51 $849.88 $222.19 $6.859.28 $3.178.16 $3.178.16 $6.356.32
Nguven T. Loan $10.789.39 $825.39 $215.79 $6.414.98 $3.333.23 $3.333.23 $6.666,46
Cu T: M. Thien $10.779.67 $824.64 $215.59 $6.150.38 $3.589.05 No Opt-In $3.589.05
Pham Thi Sinh $10.894.57 $833.43 $217.89 $6.289.31 $3,553.93 $3,553.93. $7.107.87
Vu T.T. Hong $11.126,39 $851.17 $222.53 $6.243.46 $3.809.23 $3.809.23 $7.618,47
Hoang T. T. Hoa $11.115.50 $850.34 $222,31 $6.388.62 $3.654.23 No Opt-In $3.654.23
Tran Thi Lieu $11.082.24 $847.79 $221.64 $6.427.76 $3.585.04 -NO OPT-IN $3.585,04
Tran T. T. Hang ■$11.047.77 $845.15 $220.96 $6.306.56 $3,675.10 No Opt-In $3.675.10
T.vThiT. Sau $10.971.31 $839.31 $219.43 $6.279.37 $3.633.21 $3.633.21 $7.266.42
Cao Thi Thuv $10.651.37 $814.83 $213.03 $5.646.64 $3.976.87 $3.976.87 $7.953.74
Pham T. Huong $11.034.37 $844.13 $220,69 $6.124.13 $3,845.42 NO OPT-IN $3.845,42
Nguven T Tuvet $11.105.22 $849.55 $222.10 $6.308.47 $3.725.10 $'3.725.10 ■$7.450.19
TranT. M. Lam 11.051.60 $845.45 $221,03 $6.172.39 $3.812.73 $3.812.73 $7.625,46
IMS Group 4
Nguven TB Luong $10.691.55 $817.90 $213.83 $5.945.66 $3.714.15 $3.714.15 $7.428.30
Hoang Thi Lien $10.190.07 $779.54 $203.80 $5.778.83 $3.427.90 NO Opt-In $3.427.90
Nguven T. Hanh $10.107.40 $773.22 $202.15 $5.535.72 $3.596.32 $3.596.32 $7.192.63
Nguven T. Hong $10.107,40 $773.22 $202,15 $5.573.56 $3.558.48 $3,558.48 $7.116,95
Dang T.T. Huven $10.155.28 $776.88 $203.11 $5.728.38 $3.446.91 $3.446.91 $6.893.82
Nguven T.T. Hien $10.693.39 $818.04 $213,87 $5.819.51 $3,841.97 $3.841.97 $7.683,94
Vu Thi Ngoc Anh $10.643.60 $814.24 $212.87 $5.853.87 $3.762.62 $3.762.62 $7,525,25
Nguven T.T. Mai $10.523.03 $805.01 $210,46 $5.716.34 $3,791.21 $3,791,21 $7.582.43
Bui Thi Cue $10.218.47 $781.71 $204.37 $6.000.48 $3.231.91 No Opt-In $3.231,91
Pham T T. Ngan $10.348.69 $791.67 $206.97 $9,570.71 $0.00 No Opt-In $0.00
*187[[Image here]]
IMS Group 4 (cont’dl
Nguven T.B. Thuv $10.768.08 $823.76 $215.36 £6,641.03 $3.087,93 $3.087.93 $6.175.85
Pao Van Hung $10.124.64 $774.53 $202.49 $5.702.77 $3.444.84 $3.444.84 $6.889.68
Nguven Thi Ha $10.185.92 $779.22 $203.72 $6.011.10 $3.191.87 NO OPT-IN $3.191.87
Tran Thi Thu Ha $10,185.92 $779.22 $203.72 £6.070.10 $3.132.87 $3.132.87 $6.265.75
3. TCI 2 Recruited Vietnamese. Workers. Daewoosa Samoa, Lee, and TC12 are jointly and severally liable to pay each TC12 recmited Vietnamese worker back wages, and, if opted-in, an equal amount as liquidated damages, as indicated in the “Total Owed to TC12 Workers” column in the following table. In addition, Daewoosa Samoa, Lee, and TC12 shall pay the applicable federal and'ASG government agencies the amounts deducted from each TCI2 recruited Vietnamese workers’ earned income respectively for FICA withholdings and ASG taxes, except for those amounts already paid during the Spring of 2000.
[[Image here]]
TC12 Group 1
Nguven Thi Thai $9.389.92 $718.33 $187.80 $5.026.59 $3.457.20 $3.457.20 $6.914.40
Pham Thi Ngan $9.819.52 $751.19 $196.39 $5.453.55 $3.418.38 $3,418.38 $6,836.76
Nguven T. M. Hang $9.726.96 $744.11 $194.54 $5.328.06 $3.460.24 $1.460.24 $6.920.49
Bui Thi Hau $12.870,48 $984.59 $257.41 i.816.03 $2.812.45 No Opt-In $2.812.45
Hoang Thi Tham $9.427.56 $721.21 $188.55 $5.306.34 $3.211.46 No Opt-In $3,211.46
Nguven Thi Hang $9.967.38 $762.50 $199.35 $5.471.99 $3.533.54 $3.533.54 $7.067.08
Nguven Thi Anh $9.370.91 $716.87 $187.42 $5.050.01 $3.416.60 No Opt-In $3.416.60
Hoang Thi Loan $9.378.43 $717.45 $187.57 $5.059.82 $3.413.59 $3.413.59 $6.827.17
Dang T. T. Binh $9.640.06 $737.46 $192.80 $5.818.71 $2.891.08 $2,891.08 $5.782.16
Nguven T. Lan Anh $9.462.69 $723.90 $189.25 $5.348.15 $3,201.39 No Opt-In $3.201.39
Pao Thi Thanh Tarn $9.259.84 $708.38 $185.20 $5,224.90 $3.141.36 $1141.36 $6,282.72
Bui Thi Thoa $9.357.36 $715.84 $187.15 $5.045.69 $3.408.68 $3.408.68 $6,817.37
Do Thi Xuan $9.805.47 $750.12 $196.11 $5.421.12 $3.438.12 $3.438.12 $6.876.24
Nguven Thi Nga $9.407.15 $719.65 $188.14 $5.054.39 $3,444.97 $3.546.13 $6.991.10
Do Thi Nga $9.280.90 $709.99 $185.62 $5.243.22 $3,142.07 $3.142.07 $6,284.15
LeThi Voc $9.290.34 $710.71 $185.81 $5.045.59 $3,348,23 $3.348.23 $6.696.46
Vu Thi Duven $9.350.02 $715.28 $187.00 $4,991.44 $3.456.30 $3,456.30 $6.912.60
Nguven Thi Thuv >.707.81 $742.65 $194.16 $5.200.91 $3.570.09 No Opt-In $3.570.09
TCI? <?rm X
La Ngoc Hung $9.284.01 $710.23 $185.68 $4.761.74 $3.626.36 $3.626.36 $7,252.72
Nguven Thi Thuan $11.750.82 $898.94 $235.02 S.067.37 $2.549.49 $2,549.49 $5.098.98
Vu Thi Kim Yen >.381.67 $717.70 $187.63 $5.190.16 $3.286.18 $3.286.18 $6.572.36
Hoang Trong Thuv $9.157.90 $700.58 $183.16 $4.711.21 $3,562.95 $3.562.95 $7,125.90
Nguven Thai Ouang $9.314.65 $712.57 £186.29 $4.804.24 $3.611.54 $3.611.54 $7.223.08
Nguven Thi Men $9.734.17 $744.66 $194.68 $5.512.89 $3,281.93 $3.281.93 $6.563.87
I PhamThi Thuv $9.687.24 $741.07 $193.74 $5.774.71 $2.977.71 $2,977.71 $5.955.42
*188[[Image here]]
TC12 Group 2 fcont’d)
Pham Van Tien $9.004.49 $688.84 $180.09 $4.689.49 $3.446.06 $3.446.06 $6.892.12
Nguven Tien Phong $9.332.02 $713.90 $186.64 $5.099.96 $3.331.52 $3.331.52 $6.663.04
Nguven Van Dung $9.475.51 $724.88 $189.51 $5.010.07 $3.551.05 •$3.551.05 $7.102.10
Bui Dinh Hung i.345.66 $638.44 $166.91 $3.343.43 $4-196’.87 $4.196.87 $8,393.74
Nguven Huu The $9.324,22 $713.30 $186.48 $4.759.25 $3.665.18 $3.665,18 $7.330.37
An Viet Tuan $9.345.29 $714.91 $186,91 $4.883.79 $3.559.67 $3.559.67 $7.119.35
Dinh Ouang Dai $9.381.12 $717.66 $187.62 $5.141.23 $3.334.61 $3.334.61 $6,669.22
Nguven D. D. Linli $9.477.42 $725.02 $189.55 $5.144.59 $3.418.26 $3.418.26 $6,836.52
Ngo Thi Dung $9.253.51 $707.89 $185.07 $5.241.70 $3.118.84 $3.118.84 $6.237.68
TC12 Group 3
Hoang Thi Hang $9.464.42 $724.03 $189.29 $4.977,01 $3.574.09 $3.574.09 $7.148.19
Tran Khanh Minh $9.441.44 $722.27 $188.83 $4.935.33 $3.595.01 No Opt-In $3.595.01
Nguven T. B. Tuvet $9.517.72 $728.11 $190.35 $4.837.86 $3.761.40 $3.761.40 $7.522.79
Nguven T. L'. Minh $10.306.70 $788.46 $206.13 $5.392.08 $3.920.02 $3.920.02 $7.840.04
Bui T. T. Huven $9.762.84 $746.86 $195.26 $5.086.83 $3.733.89 $3.733.89 $7.467.78
Nguven Hai Oue $9.770.50 $747.44 $195.41 $5.138.23 ■$3.689.41 $3.689.41 $7,378.82
Nguven Thi Tuvet $9.504.31 $727.08 $190.09 $5.275.89 $3.311.25 $3,311.25 $6,622.51
Nguven Thi Cue $9.366.43 $716.53 $1-87.33 $5.161.49 $3.301.08 $3.301.08 $6.602.16
Tran Thi Hoa $9.429.63 $721.37 $188.59 $5.129.78 $3.389.89 NO Opt-In $3,389.89
Nguven Le Huong $9.259.51 $708.35 $185.19 $4.838.76 $3.527.20 $ 3.527.20 $7.054.41
Pham Thi Phuong $9.343.45 $714.77 $186.87 $4.863.67 $3.578.14 $3.578.14 $7.156.27
Tran Thanh Yen $9.184.65 $702,63 $183.69 $4.882.39 $3.415.94 No Opt-In $3,415.94
D9 Thi Sau $9.381.75 $717.70 $187.64 1.937.43 $3.538.98 $3.538.98 $7.077.96
Nguven Thi H. Sen $9.010.24 $689.28 $180.20 $4.605.08 $3.535.67 $3.535.67 $7,071.34
Khong'Thi Van Nga $9.280.26 $709.94 $185.61 $4.797.71 $3.587.00 3.587.00 $7.174.00
Do Thi Chau Giang 1.991.09 $687.82 $179.82 $4.540.25 $3.583.20 $3.583.20 $7.166.40
Nguven'Van Thanh $9.213.23 $704.81 $184.26 $4.681.02 $3.643,13 $3,643.13 $7,286.27
‘Le Thi Huong $9.642.30 $737.64 $192.85 $5.231.99 $3.479.82 $3.479.82 $6.959.65
Le Thi Thanh $9.138.55 $699.10 $182.77 $4.892.09 $3.364.59 $3.364.59 $6.729.17
■TCI2 Group 4
Nguven Thi P. Lan $11.237.44 $859',66 $224.75 $5.109.17 $5.043,86 No Opt-In $5,043,86
Ta Thi buvnh $10.005.92 $765.45 $200.12 $5.168.53 $3.871.82 No Opt-In $3.871.82
Tran Thi Hai $9.927.01 $759.42 $198.54 $5.180.39 $3.788.66 NO Opt-In $3.788.66
Pham Thi T. Huven $9.926.94 $759.41 $198.54 $5,190.89 $3.778.10 No Opt-In $3.778.10
Do'Thi Kim Thuv $9.892.47 $756.77 $197.85 $4.407.32 $4.530.53 1.530.53 $9.061.05
Vo Thi Ouang $9.923.81 $759.17 $198.48 $5.204.25 $3.761.91 NO Opt-In $3.761.91
Duong Thi Ha $9.930.91 $759.71 $198.62 $5.240.11 $3.732.47 No Opt-In $3.732.47
Pham Thu Ha $10.013.97 $766.07 $200.28 $5.625.56 $3,422.06 NO Opt-In $3.422.06
Pham'Thi Ngan $9.926.94 $759.41 $198.54 $5.105.33 $3.863.66 $3.863.66 $7,727.32
Cao Thi Nga $9.923.11 $759.12 $198.46 $5.102.85 $3.862.68 NO Opt-In $3.862.68
Nguven TK Phuong $9.957.58 $761.75 $199.15 $5.235.04 $3.761.63 Nq'Opt-In $3,761.63
Nguven Thi Lan $9.923.11 $759.12 $198.46 $5.128.99 $3,836.54 $3.836,54 $7.673.08
Duong Van Tuan $9.833.11 $752.23 $196.66 $5.102.85 $3,781.36 No Opt-In $3.781.36
Dinh Van Cuong $9.578.41 $732.75 $191.57 $4.551.28 $4.102.81 $4.102.81 1.205.63
Pham Thi Luc $9.892.61 $756.78 $197.85 $4.593.24 $4.344.73 $4.344.73 $8.689.47
Ngo Thanh Hoan $9.892.47 $756.77 $197,85 $4.685,59 $4.252.26 $4.252.26 $8,504.51
Pham Thi Hai 1 $9.892.47 $756.77 $197.85 $5.309.88 $3,627.97 $3,627.97 $7.255.93
Nguven Thi Chien $9.892.61 $756.78 $197.85 $4.968.36 $3.969.61 No Opt-In $3.969.61
Tran Thi Yen $9.892.47 $756.77 $197.85 $4.745.51 $4.192.34 $4.192.34 1.384.67
*189[[Image here]]
TC12 Group 4 (cont’dl
Tran Thi Thu $9.925.03 $759.26 $198.50 $4.806.81 $4.160.45 $4.160.45 $8.320.90
Nguven Thi Yen $9.930.91 $759.71 $198.62 $4.924.37 $4.048.21 $4,048.21 $8.096.41
Le T. T. Huven $9.896.30 $757.07 $197.93 $4.888.70 $4.052.61 $4.052.61 i.105.21
Tran Thi Hong >.892.65 $756.79 $197.85 $5.084.68 $3.853.32 $3.853.32 $7.706.65
Hoang Tuvet Hoa $9.905.88 $757.80 $198.12 $4.267.85 $4.682.11 $4.682.11 $9.364.22
Nguven Thi Le $9.992.05 $764.39 $199.84 $5.268.26 $3.759.56 No Opt-In $3.759.56
Luong Thi Hang $9.896.37 $757.07 $197.93 $5.116.03 $3,825.34 No Opt-In $3.825.34
Hoang Thi Ngoan $9.892.68 $756.79 $197.85 $5.273.00 $3,665.04 NO Opt-In $3.665.04
Giang T. T- Nhan $9.892.47 $756.77 $197.85 $4.864.98 $4.072.87 $4.072.87 i. 145.73
DoThiHaiVan $9.953.89 $761.47 $199.08 $5.249.15 $3.744.19 No Opt-In $3.744.19
I e Thi Thu Huong $9.923.11 $759.12 $198.46 $4.844.33 $4.121.20 $4.121.20 $8.242.40
Pao T. Ngoc Thuv $9.892.47 $756.77 $197.85 $4.675.69 $4.262.16 $4.262.16 $8.524.31
Nguven Thi Hai $ 9,829.45 $751.95 $196.59 $5.109.17 $3,771,74 $3,771,74 $7.543.48
Le Thi Yen $10.401.86 $795.74 $208.04 $4.844.33 $4.553.75 $4.553.75 $9.107,50
Ngo Thn Hang 1 9.275.84 $709,60 $185.52 $4.675.69 $3.705.03 $3.705.03 $7.410.06
TCI2 Group S
Bui Thi Hoa $9.974.08 $763.02 $199.48 $5.149.21 $3.862.37 NO OPT-IN $3.862.37
Pham Thi Hung $9.913.77 $758.40 $198,28 $5.190.13 $3.766.96 NoOpt-Tn $3.766.96
Nguven Thi Lam $9.881.14 $755.91 $197.62 $4.909.89 $4.017.72 $4.017.72 $8.035.44
Vu Thi Huong $10.329.25 $790.19 $206.59 $5.095.85 $4.236.63 1.236.63 $8.473.25
Truong Thi Hoa $10.275.70 $786.09 $205.51 $5.266.48 $4,017.61 $4.017.61 $8.035.23
Luyen T.M. Thuv 1 9.980.72 $763.53 $199.61 $5.016.73 $4,000,85 $4,000,85 $8.001.70
None Thi Nhung $10.289.04 $787.11 $205.78 $5.098.79 $4.197.35 $4.197.35 i.394.71
VuThi Nsa $9.816.03 $750.93 $196.32 $4.908.83 $3,959.95 $3.959.95 $7.919.91
Nguven Thi Hien $9.891,98 $756.74 $197.84 $5.011.87 $3.925.53 $3.925.53 $7.851.06
Pham Thi Thai $9.873.48 $755.32 $197.47 $4.858.49 $4,062.20 $4.062.20 i.124.40
Nguven Thi Loan $9.852.42 $753,71 $197.05 $4.954.09 $3.947.57 $3.947.57 $7.895.13
Vu Thi Bien >.862.13 $754.45 $197.24 $4.971.04 $3,939.39 $3.939.39 $7.878.79
Pham T.T. Nam $9.829.44 $751.95 $196,59 $4.832.83 $4.048.06 $4,048.06 $8.096.13
Tran Thi Phuong $9.896.46 $757.08 $197.93 $5.088,59 $3.852.86 $3.852.86 $7.705.72
Doan Thi H. Thuv $9.754.89 $746.25 $195.10 $4801.05 $4,012.49 $4.012.49 1.024.99
Do Thi Van Anh $10.233.50 $782.86 $204.67 $4.999.33 $4.246.64 $4,246.64 $8.493.27
Vu T. Hoang Hau $10.009.94 $765.76 $200.20 $5.000.31 $4.043.67 $4.043.67 1,087.33
TCI3 Group 6
Tmong T. Le Onven $8.875.26 $678.96 $177,51 $4.284,45 $3.734.35 $3,734.35 $7.468.69
Nguven Thi Tham $9.038.04 $691.41 $180.76 $4.539.30 $3.626.56 $3.626.56 $7.253.13
Nguven T.K. Loan $9.591.46 $733.75 $191.83 $5.672.06 $2,993,82 No Opt-In $2.993.82
Nguven Le Van $9.436.03 $721.86 $188.72 $5.241.78 $3.283.67 No Opt-In $3.283.67
Duong Thi Huven $9.917.35 $758.68 $198.35 $5.636.98 $3,323.34 No Opt-In $3.323.34
An Thi Minh $9.516.79 $728.03 $190.34 $4.980.66 $3.617.76 No Opt-In $3.617.76
Dinh Thi Thuv $9.507.28 $727.31 $190.15 $4.866.27 $3,723.56 $3,723.56 $7.447.11
Doan T. Kim Yen $9.465,08 $724.08 $189.30 $4.994.69 $3.557.01 $3,557.01 $7.114.02
Phung Thi Lan $9.241,17 $706.95 $184.82 $4.916.76 $3,432.63 $3.432.63 $6.865.27
Nguven T.T. Thuv $9.126.13 $698.15 $182.52 $4.637.66 $3,607.79 $3.607.79 $7.215.59
Nguven T.K. Dung $8.926.97 $682.91 $178.54 $4.534.39 $3.531.12 $3.531.12 $7.062.25
Duong Thi Hao $9.306.14 $711.92 $186.12 $4.597.87 $3.810.22 $3,810.22 $7.620.45
Nguven Thi Hanh $9.137.62 $699.03 $182.75 $4.796.07 $3,459.77 $3.459.77 $6.919.53
Juong Thi M. Tam >.484.23 $725.54 $189.68 $4.813.71 $3.755.29 $3.755.29 $7.510.58
*190[[Image here]]
TC12 Group 7
Tran T. Bich Hoa $9.366.41 $716.53 $187.33 $4.948.88 $3.513.67 $3.513.67 $7,027.33
Nguven Thi Lan 1.795.74 $672.87 .$175.91 $4.459.71 $3.487.24 $3.487.24 $6,974.47
Nguven Thi Thu $8.600.41 $657.93 $172.01 $4.175.46 $3.595.01 $3.595.01 $7.190.01
Le Thi Van $9.368.16 $716.66 $187,36 $5.110.59 $3.353.54 $3.353.54 $6.707.08
Nguven Hai Yen $9.424,04 $720.94 $188.48 $5.160.79 $3.353.83 No Opt-In $3.353.83
Nguven Thi Them $9.393.92 $718.63 $187.88 $5.185.28 $3.302.12 No Opt-In $3.302.12
Nguven Thi Anh $9.443.33 $722.41 $188.87 $5.194.57 $3.337.48 No Opt-In $3.337.48
Le Thi Yen $9.241.93 $707.01 $184.84 $4.934.71 $3.415.37 $3.415.37 $6.830.75
Pham T. X. Huong $9.438.87 $722.07 $188.78 $4.917.93 $3.610.09 $3.610.09 $7,220.18
Le Thi Kim Thanh 1.983.73 $687.26 $179.67 $4.726.46 $3.390.34 $ 3.390.34 $6.780.68
Nguven Thi Thuv $9.087.83 $695.22 $181.76 $4.874.57 $3.336.28 No Opt-In $3,336.28
Nguven Thi Lai $9.527.22 $728.83 $190.54 $5.393.52 $3.214.32 No Opt-In $3,214.32
Banh Thi Ha i.866.59 $678.29 $177.33 $4.656.07 $3.354.89 S 3.354.89 $6.709.79
Ngo Anh Tuvet 1.565.94 $655.29 $171.32 $4.155.49 $3.583.83 B 3.583.83 $7,167.66
Nguven T.H. Hue 1.937.59 $683.73 $178.75 $5.017.60 $3.057.51 No Opt-In $3.057.51
Tran Thi Thuv $8.927.87 $682.98 $178.56 $5.028.81 $3.037.52 No OPT-IN $3.037.52
Do Thi Anh Tuvet $8.909.84 $681.60 $178.20 $4.904.12 $3.145.92 NO OPT-IN $3.145.92
Luu T.P. Hoa .$8.929.93 $683.14 $178.60 $5.056.44 $3.011.75 No Opt-In $3,011.75
Luong T. An Thai $8.906.98 $681.38 $178.14 $5.059.23 $2.988.23 NO OPT-IN $2.988.23
Chu Thi Thu $9.379.05 $717.50 $187,58 $5.110.46 $3.363.51 i 3.363.51 $6,727.02
Vu Thi Tuvet $9.335.11 $714.14 $186.70 $5.043.90 $3.390.37 NO OPT-IN $3,390.37
TCI2 Group S
Hoan Anh Dung $10.000.98 $765.07 $200.02 i.125.14 $2.910.75 No Opt-In $2,910,75
Hoan O. Thang $8.288.68 $634.08 $165.77 $3.414.28 $4,074.54 No Opt-In $4.074.54
Nguven V. Trung 1,416.04 $643.83 $168.32 $3.744.41 $3.859.48 $ 3.859.48 $7,718.96
TCtt Group 9
Le Thi Duo $6.881.30 $526.42 $137.63 $2.656.86 $3.560.39 No Opt-In $3,560.39
Bui Thi Huven $6.929.18 $530.08 $138.58 $2.599.04 $3.661.47 $3.661.47 $7.322.94
TC12 Group 10
Pham Thi Thu Nga $3.589.45 $274.59 $71.79 $659.27 $2.583.80 No Opt-In $2,583.80
Hoang T. Thu Thuv $3.521.20 $269.37 $70,42 $659.27 $2.522.13 $2.522.13 $5.044.27
Bui Thi Ut $3.521.20 $269.37 $70,42 $659.27 $2.522.13 $2.522.13 $5,044.27
Nguven Thi Tuvet $3.529.00 $269.97 $70.58 $699.39 $2!489.06 $2.489.06 $4.978.12
Bui T Phuong Lan $3.521.20 $269.37 $70,42 $659.27 $2.522.13 No Opt-In $2.522.13
Vu Thi Ha $3.521.20 $269.37 $70.42 $645.45 $2.535.95 NO OPT-IN $2.535.95
Mai Thi Oahn $3.653.80 $279.52 $73,08 $701.11 $2.600.10 No Opt-In $2,600,10
Ninh Thi Chung $3.653.80 $279.52 $73.08 $714.93 $2.586.28 No Opt-In $2.586.28
Bui T. T. Bang $3.521.20 $269.37 $70.42 $645.45 $2.535.95 $2.535.95 $5,071.91
Hoang Thi Giang $3.521.20 $269.37 $70.42 $659.27 $2.522.13 $2.522.13 $5.044.27
Duong Thi Tam $3.595.30 $275.04 $71.91 $659.27 $2.589.08 No Opt-In $2.589.08
Duong Thi Thom $3.521.20 $269.37 $70.42 $656.92 $2.524.48 No Opt-In $2,524.48
Nguven Thi Hien $3.529.00 $269.97 $70.58 $708.60 $2.479.85 $2.479.85 $4.959.70
Nguven T. T Huong $3.521.20 $269.37 $70.42 $774,83 $2.406.57 $2.406.57 $4.813.15
Le Phi M. Phuong $3.521.20 $269.37 $70.42 $659.27 $2.522.13 $2.522.13 $5.044.27
Nguven T. Huven $3.521.20 $269.37 $70.42 $620.69 $2.560.71 1.560.71 $5.121.43
Nguven Thi Luan $3,521.20 $269.37 $70.42 $659.27 $2.522.13 $2.522.13 $5.044.27
Nguven T. T. Mai $3.521.20 $269.37 $70.42 $595.03 $2.586.37 $2.586.37 $5,172.75
Dan T. Hong Van $3.521.20 $269.37 $70.42 $634.62 $2.546.78 No Opt-In $2,546.78
*191[[Image here]]
TCtt Group n
Mai T. Hong Phuc S3.454.30 S264.25 $69.09 S659.27 S2.461.69 NO OPT-IN S2.461.69
Le Thi Thien S3.540.10 S270.82 S70.80 S651.05 S2.S47.43 no Opt-In S2.547.43
Nguven Thi Luven S3.454.30 S264.25 S69.09 $659.27 S2.461.69 NQOPT-IN S2.461.69
Hoang Thi Ha S3.419.20 $261.57 $68.38 S659.27 S2.429.98 S2.429.98 S4.859.95
Pham Thi Van S3.419.20 $261.57 S68.38 $659.27 S2.429.98 S2.429.98 S4.859.95
Le Thi Hoai S3.419.20 $261.57 $68.38 $659.27 $2.429.98 $2.429.98 $4.859.95
Nguven Thi Hoa S3.419.20 $261.57 S68.38 $659.27 $2.429.98 $2.429.98 i.859.95
Le Thi Cue S3.419.20 $261.57 S68.38 $659.27 $2.429.98 $2.429.98 $4.859.95
Nguven Le Hoan S3.419.20 S261.57 $68.38 $659.27 S2.429.98 S2.429.98 S4.8S9.95
Nguven Le Ngoc S3.419.20 $261.57 $68.38 $657.11 $2.432.14 $2.432.14 S4.864.27
Nguven Thi Van $3.419.20 $261.57 $68.38 $654.67 S2.434.58 $2.434.58 $4.869.15
Nguven Thi Thuv $3.419.20 $261.57 S68.38 $659.27 S2.429.98 No Opt-In $2.429.98
Tran Thi Phuong $3.419.20 $261.57 $68.38 $659.27 $2.429.98 $2.429.98 $4.859.95
Le Thi Chi Lan $3.427.00 $262.17 S68.54 $714.65 $2.381.64 $2.381.64 S4.763.29
Nguven Thi Hong $3.419.20 $261.57 $68.38 $603.98 $2.485.27 $2.485.27 S4.970.S3
Nguven Thi Thao S3.423.10 $261.87 $68.46 $656.97 $2.435,80 $2.435.80 $4.871.60
Dang Thi Oanh $3,419.20 $261.57 $68.38 $659.27 S2.429.98 No Opt-In $2.429.98
Nguven L. Huong $3,419.20 S261.57 S68.38 $659.27 S2.429.98 $2.429.98 $4.859.95
Ngo Thi Vinh $3.419.20 $261.57 S68.38 $650.06 S2.439.19 No Opt-In $2.439.19
Pham Yen I.v $3.427.00 $262.17 $68.54 $695.87 $2.400.42 $2.400.42 S4.800.85
Luu Thi Thuv S3.423.10 $261.87 $68,46 $669.84 $2.422.93 $2.422.93 $4.845.86
Vu Thi Thanh $3.427.00 $262.17 $68.54 $790.53 $2.305.76 NQOPT-IN $2.305.76
TC12 Group 12
Nguven Thi Phan $3.419.20 $261.57 1.38 $659.27 S2.429.98 No Opt-In S2.429.98
Tran T. K. Thanh $3,419.20 $261.57 $68.38 $674.54 $2.414.71 No Opt-In $2.414.71
Ta Thi Thuv Ngan $3.544.00 $271.12 $70.88 $659.27 S2.542.73 No Opt-In S2.542.73
Vu Thi Thom $3.471.85 $265.60 $69.44 $659.27 $2.477.55 No Opt-In $2.477.55
Nguven Thi Hang S3.462.10 $264.85 $69.24 $659.27 $2,468.74 $2.468.74 $4.937.47
Tran T. T. Tam S3.S44.00 $271.12 $70.88 $659.27 $2.542.73 No Opt-In $2.542.73
Pham Thi Ngan S3.540.10 $270.82 $70.80 $659.27 $2.539.21 $2.539.21 $5.078.42
Dnan P. C. Tuong $3.553.39 $271.83 $71.07 $935.45 1.275.04 $2.275.04 $4.550.08
Vu T. Kim Thanh $3.419.20 $261.57 $68.38 $659.27 $2.429.98 $2.429.98 S4.859.95
Nguven Thi Hoai $3.419.20 $261.57 $68.38 $659.27 $2.429.98 $2.429.98 $4.859.95
4. Independent Vietnamese Workers. Daewoosa Samoa, and Lee are jointly and severally liable to remunerate the independent Vietnamese workers listed back wages and an equal amount as liquidated damages as indicated in the “Total Owed to the Independent Workers” column in the following table. In addition, Daewoosa Samoa, and Lee shall pay the applicable federal and ASG government agencies the amounts deducted from each independently reemited Vietnamese workers’ earned income respectively for FICA withholdings and ASG taxes, except for those amounts already paid during the Spring of 2000.
*192[[Image here]]
Ha Thi Huong S7.030.00 S537.80 $140.60 S3.208.S7 S3.143.04 S3.143.04 S6.286.07
Tran Thi Thu S6.985.96 $534.43 $139.72 S3.159.78 S3.1S2.03 S3.152.03 S6.304.06
Ngo Thi Tiep S7.037.66 $538.38 S140.75 S3.222.40 S3.136.13 S3.136.13 $6.272.25
Ngo Thi Nguven $7.114.50 S544.26 $142.29 S3.208.57 $3.219.38 NO OPT-IN S3.219.38
Tran Thi Phuong $7.118.33 $544.55 $142.37 $3,210,12 $3.221.29 S3.221 29 S6.442.58
Mai Thi Thuv S5.766.00 $441.10 $115.32 S6.243.19 $0.00 NO OPT-IN $0.00
B. Class-wide Back Wages
1. IMS Group 1. Daewoosa Samoa, Lee, and IMS are jointly and severally liable to pay each IMS-recruited Vietnamese worker, not listed above, that arrived in American Samoa on February 8, 1999 back wages in the amount of $4,847.88. In addition, Daewoosa Samoa, Lee, and IMS shall pay the applicable federal government agency the amount of $967.01, minus any amount paid during the Spring of 2000, as monies deducted from each IMS group 1 worker’s income to pay his or her FICA contributions. Also', Daewoosa Samoa, Lee, and IMS shall pay the applicable ASG agency the amount of $252.98, minus any amount paid during the Spring of 2000, as monies deducted from each IMS group. 1 worker’s income to pay his or her ASG taxes.
2. IMS Group 2. Daewoosa Samoa, Lee, and IMS are jointly and severally liable to pay each EMS-recmited Vietnamese worker, not listed above, that arrived in American Samoa on March 8, 1999, back wages in the amount of $4,590.97. In addition, Daewoosa Samoa, Lee, and IMS shall pay the applicable federal government agency the amount of $894.96, minus any amount paid during the Spring of 2000, as monies deducted from each IMS group 2 worker’s income to pay his or her FICA contributions. Also, Daweoosa Samoa, Lee, and IMS shall pay the applicable ASG agency the amount of $233.98, minus any amount paid during the Spring of 2000, as monies deducted from each IMS group 2 worker’s income to pay his or her ASG taxes.
3. IMS Group 3. Daewoosa Samoa, Lee, and IMS are jointly and severally liable to pay each IMS-recruited Vietnamese worker, not listed above, that arrived in American Samoa on May 14, 1999, back wages in the amount of $3,622.61. In addition, Daewoosa Samoa, Lee, and IMS shall pay the applicable federal government agency the amount of $841.05, minus any amount paid during the Spring of 2000, as monies deducted from each IMS group 3 worker’s income to pay his or her FICA contributions.
Also, Daewoosa Samoa, Lee, and IMS shall pay the applicable ASG *193agency the amount of $219.88, minus any amount paid during the Spring of 2000, as monies deducted from each IMS group 3 worker’s income to pay his or her ASG taxes.
4. IMS Group 4. Daewoosa Samoa, Lee, and IMS are jointly and severally liable to pay each IMS-recruited Vietnamese worker, not listed above, that arrived in American Samoa on June 12, 1999, back wages in the amount of $3,237.37. In addition, Daewoosa Samoa, Lee, and IMS shall pay the applicable federal government agency the amount of $789.68, minus any amount paid during the Spring of 2000, as monies deducted from each IMS group 4 worker’s income to pay his or her FICA contributions. Also, Daewoosa Samoa, Lee, and IMS shall pay the applicable ASG agency the amount of $206.45, minus any amount paid during the Spring of 2000, as monies deducted from each IMS group 4 worker’s income to pay his or her ASG taxes.
5. TCI2 Group 1. Daewoosa Samoa, Lee, and TC12 are jointly and severally liable to pay each-TC12 recruited Vietnamese worker, not listed above, that arrived in American Samoa on July 15, 1999, back wages in the amount of $3,320.32. In addition, Daewoosa Samoa, Lee, and TCI2 shall pay the applicable federal government agency the amount of $741.68, minus any amount paid during the Spring of 2000, as monies deducted from each TC12 group 1 worker’s income to pay his or her FICA contributions. Also, Daewoosa Samoa, Lee, and TC12 shall pay the applicable ASG agency the amount of $193.90, minus-any amount paid during the Spring of 2000, as monies deducted from each TCI2 group 1 worker’s income to pay his or her ASG taxes.
6. TC12 Group 2. Daewoosa Samoa, Lee, and TC12 are jointly and severally liable to pay each TC12-recruited Vietnamese worker, not listed above, that arrived in American Samoa on July 19, 1999, back wages in the amount of $3,507.06. In addition, Daewoosa Samoa, Lee, and TCI2 shall pay the applicable federal government agency the amount of $726.82, minus any amount paid during the Spring of 2000, as monies deducted from each TC12 group 2 worker’s income to pay his or her FICA contributions. Also, Daewoosa Samoa, Lee, and TCI2 shall pay the applicable ASG agency the amount of $190.02, minus any amount paid during the Spring of 2000, as monies deducted from each TC12 group 2 worker’s income to pay his or her ASG taxes.
7. TCI2 Group 3. Daewoosa Samoa, Lee, and TC12 are jointly and severally liable to pay each TC12-recruited Vietnamese worker, not listed above, that arrived in American Samoa on July 22, 1999, back wages in the amount of $3,554.20. In addition, Daewoosa Samoa, Lee, and TCI2 shall pay the applicable federal government agency the amount of $720.75, minus any amount paid during the Spring of 2000, as monies *194deducted from each TC12 group 3 worker’s income to pay his or her FICA contributions. Also Daewoosa Samoa, Lee, and TC12 shall pay the applicable ASG agency the amount of $188.43, minus any amount paid during the Spring of 2000, as monies deducted from each TCI2 group 3 worker’s income to pay his or her ASG taxes.
8. TCI2 Group 4. Daewoosa Samoa, Lee, and TCI2 are jointly and severally liable to pay each TC12-recruited Vietnamese worker, not listed above, that arrived in American Samoa on July 19, 1999, back wages in the amount of $3,936.98. In addition, Daewoosa Samoa, Lee, and TCI2 shall pay the applicable federal government agency the amount of $756.79, minus any amount paid during the Spring of 2000, as monies deducted from each TC12 group 4 worker’s income to pay his or her FICA contributions. Also, Daewoosa Samoa, Lee, and TC12 shall pay the applicable ASG agency the amount of $197.85, minus any amount paid during the Spring of 2000, as monies deducted from each TCI2 group 4 worker’s income to pay his or her ASG taxes.
9. TC12 Group 5. Daewoosa Samoa, Lee, and TC12 are jointly and severally liable to pay each TC12-recruited Vietnamese worker, not listed above, that arrived in American Samoa on August 3, 1999, back wages in the amount of $4,008.11. In addition, Daewoosa Samoa, Lee, and TCI2 shall pay the applicable federal government agency the amount of $763.49, minus any amount paid during the Spring of 2000, as monies deducted from each TC12 group 5 worker’s income to pay his or her FICA contributions. Also, Daewoosa Samoa, Lee, and TCI2 shall pay the applicable ASG agency the amount of $199.60, minus any amount paid during the Spring of 2000, as monies deducted from each TCI2 group 5 worker’s income to pay his or her ASG taxes.
10. TCI2 Group 6. Daewoosa Samoa, Lee, and TC12 are jointly and severally liable to pay each TC12-recruited Vietnamese worker, not listed above, that arrived in American Samoa on August 10, 1999, back wages in the amount of $3,532.64. In addition, Daewoosa Samoa, Lee, and TCI2 shall pay the applicable federal government agency the -amount of $713.47, minus any amount paid during the Spring of 2000, as monies deducted from each TC12 group 6 worker’s income to pay his or her FICA contributions. Also, Daewoosa Samoa, Lee, and TCI2 shall pay the applicable ASG agency the amount of $186.31, minus any amount paid during the Spring of 2000, as monies deducted from each TCI2 group 6 worker’s income to pay his or her ASG taxes.
11. TC12 Group 7. Daewoosa Samoa, Lee, and TC12 are jointly and severally liable to pay’ each TC12-recmited Vietnamese worker, not listed above, that arrived in American Samoa on August 24, 1999 back wages in the amount of $3,325.85. In addition, Daewoosa Samoa, Lee, *195and TCI2 shall pay the applicable federal government agency the amount of $697.35, minus any amount paid during the Spring of 2000, as monies deducted from each TCI2 group 7 worker’s income to pay his or her FICA contributions. Also, Daewoosa Samoa, Lee, and TCI2 shall pay the applicable ASG agency the amount of $182.31, minus any amount paid during the Spring of 2000, as monies deducted from each TCI2 group 7 worker’s income to pay his or her ASG taxes.
12. TC12 Group 8. Daewoosa Samoa, Lee, and TCI2 are jointly and severally liable to pay each TC12-recruited Vietnamese worker, not listed above, that arrived in American Samoa on October 1, 1999, back wages in the amount of $3,614.92. In addition, Daewoosa Samoa, Lee, and TCI2 shall pay the applicable federal government agency the amount of $681.00, minus any amount paid during the Spring of 2000, as monies deducted from each TCI2 group 8 worker’s income to pay his or her FICA contributions. Also, Daewoosa Samoa, Lee, and TC12 shall pay the applicable ASG agency the amount of $178.04, minus any amount paid during the Spring of 2000, as monies deducted from each TCI2 group 8 worker’s income’ to pay his or her ASG taxes.
13. TCI2 Group 9. Daewoosa Samoa, Lee, and TCI2 are jointly and severally liable to pay each TC12-recruited Vietnamese worker, not listed above, that arrived in American Samoa on October 1, 1999, back wages in the amount of $3,610.93. In addition, Daewoosa Samoa, Lee, and TCI2 shall pay the applicable federal government agency the amount of $528.25, minus any amount paid during the Spring of 2000, as monies deducted from each TC12 group 9 worker’s income to pay his or her FICA contributions. Also, Daewoosa Samoa, Lee, and TC12 shall pay the applicable ASG agency the amount of $138.10, minus any amount paid during the Spring of 2000, as monies deducted from each TCI2 group 9 worker’s income to pay his or her ASG taxes.
14. TC12 Group 10. Daewoosa Samoa, Lee, and TC12 are jointly and severally liable to pay each TC12-recruited Vietnamese worker, not listed above, that arrived in American Samoa on May 18, 2000, back wages in the amount of $2,534.62. In addition, Daewoosa Samoa, Lee, and TC12 shall pay the applicable federal government agency the amount of $271.08, minus any amount paid during the Spring of 2000, as monies deducted from each TC12 group 10 worker’s income to pay his or her FICA contributions. Also, Daewoosa Samoa, Lee, and TCI 2 shall pay the applicable ASG agency the amount of $70.87, minus any amount paid during the Spring of 2000, as monies deducted from each TCI2 group 10 worker’s income to pay his or her ASG taxes.
15. TC12 Group 11. Daewoosa Samoa, Lee, and TC12 are jointly and severally liable to pay each TC12-recmited Vietnamese worker, not *196listed above, that arrived in American Samoa on May 25, 2000, back wages in the amount of $2,439.34. In addition, Daewoosa Samoa, Lee, and TC12 shall pay the applicable federal government agency the amount of $263.54, minus any amount paid during the Spring of 2000, as monies deducted from each TCI2 group 11 worker’s income to pay his or her FICA contributions. Also, Daewoosa Samoa, Lee, and TC12 shall pay the applicable ASG agency the amount of $68.90, minus any amount paid during the Spring of 2000, as monies deducted from each TCI2 group 11 worker’s income to pay his or her ASG taxes.
C. Other Vietnamese Workers Entitled to F.T.SA liquidated Damages
A number of Vietnamese workers affirmatively opted-in to the FLSA suit by either being a named plaintiff in the lawsuit, or signing the January 17, 2001 consent to FLSA litigation, but were listed more than once, or not listed at all on the Daewoosa Samoa provided payroll summaries.
Apparently, some of the opted-in Vietnamese workers were named more than once in the summaries because more than one worker with the same name existed. This makes it impossible for the court to decipher which Vietnamese workers opted-in, and, therefore, entitled to FLSA liquidated damages amongst those workers who share the same name with other coworkers. Thus, within 50 days from the date this opinion and order is entered, those workers who opted-in the FLSA litigation by either being a named plaintiff in the complaint or executing the January 17, 2001 consent, but who share the same name with other Vietnamese workers must file proof with the Court that they are, indeed, either the named, or consenting worker listed, and are, therefore, entitled to liquidated damages in an amount equal to owed back-wages. Without such proof, those opted-in Vietnamese workers with duplicative names shall not be entitled to liquidated damages. Those opted-in Vietnamese workers with duplicative names, who are named plaintiffs, include: Nguyen Thi Thuy, and Nguyen Thi Anh. Additional opted-in Vietnamese workers with duplicative names, who signed the January 17, 2001 consent to FLSA litigation include: Nguyen Thi Tuyet, Le Thi Yen, Tran Thi Phuong, Pham Thi Ngan, and Nguyen Thi Hien.
In addition, some of the Vietnamese workers who opted-in to the FLSA litigation were not listed at all on the payroll summaries provided by Daewoosa Samoa. These workers, who are entitled to class-wide back wages as listed above, are also entitled to liquidated damages in an amount equal to owed back wages. These unlisted opted-in Vietnamese workers, who are named plaintiffs, include: Le Thi Thanh Thuy, Pham Van Liem, Hoang Van Tai, Nguyen Thuy, Noang Thi Hang, Giang Thi Thanh Nhan, and Ngo Van Thu. Additional unlisted opted-in Vietnamese workers, who signed the January 17, 2001 consent to litigation include: *197Trinh Thi Danh, Cu Thi Minh Thien, An Thu Minh, Ngo Thi Oinh, and Hang Thu Ngo.
D. Other Class-wide. Damage,
1. Daewoosa Samoa, Lee, IMS, and TCI2 shall reimburse the Chinese workers and Vietnamese workers for charging them illegal initial fees as follows: a) Daewoosa Samoa and Lee are jointly and severally liable to reimburse each member of the Chinese workers’ class $7,683.00; b) Daewoosa Samoa, Lee and IMS are jointly and severally liable to reimburse each member of the IMS recmited Vietnamese workers’ class $3,000.00; c) Daewoosa Samoa, Lee, and TC12 are jointly and severally liable to reimburse each member of the TC12 recmited Vietnamese workers’ class $4,000.00; and d) Daewoosa Samoa and Lee are jointly and severally liable to reimburse each member of the independently recmited Vietnamese workers’ class $5,000.
2. Daewoosa Samoa, Lee, IMS, and TC12 shall compensate the Chinese workers, and the Vietnamese workers for providing them substandard room and board as follows: a) Daewoosa Samoa and Lee are jointly and severally liable to reimburse each Chinese worker, and each independently recmited Vietnamese worker $1,500.00; b) Daewoosa Samoa, Lee, and IMS are jointly and severally liable to reimburse each IMS recruited Vietnamese worker $1,500.00; and c) Daewoosa Samoa, Lee, and TCI2 are jointly and severally liable to reimburse each TCI2 recmited Vietnamese worker $1,500.00.
3. Daewoosa Samoa, Lee, IMS, and TCI2 shall compensate the Chinese workers and Vietnamese workers for illegally withholding the passports and identification cards as follows: a) Daewoosa Samoa, and Lee are jointly and severally liable to reimburse each Chinese worker, and independently recmited Vietnamese worker $1,000.00; b) Daewoosa Samoa, Lee, and IMS are jointly and severally liable to reimburse each IMS recmited Vietnamese worker $1,000.00; and c) Daewoosa Samoa, Lee, and TCI2 are jointly and severally liable to reimburse each TCI2 recmited Vietnamese worker $1,000.00.
D. TC12’s Cross Claim
TC12’s cross-claim against Daewoosa Samoa and Lee for indemnification is denied.
E. Attorneys Fees and Costs
Daewoosa Samoa, and Lee are jointly and severally liable to pay the reasonable attorney’s fees and costs of the Chinese workers in the *198amount of $25,000. Likewise, Daewoosa Samoa, Lee, IMS, and TC12 are jointly and severally liable to pay the reasonable attorney’s fees and costs of the Vietnamese workers in the amount of $75,000.
It is so ordered.
All citations in this opinion and order to FLSA generally and to specific FLSA sections include reference to 29 U.S.C.A.
Though joined by this name, IMS is actually the acronym for International Manpower Supply. IMS will be identified by the acronym throughout this opinion and order.
The contracts were initially written in either English or Vietnamese, and accompanied by their Vietnamese or English translations, respectively.
The order slightly amended an earlier order dated February 22, 2000.
Nu Thi Nga died together with another Vietnamese worker, Dung Kim Thi Vu. However, at the time of her death, Dung Kim Thi Vu was not a representative plaintiff in this lawsuit.
Generally, when a class action has been certified, it acquires a legal status separate from the interest of the named representative plaintiff. See Sosna v. Iowa, 419 U.S. 393, 399 (1975); see also Jones v. Jones, 148 F.R.D. 196 (W.D.KY. 1993) (allowing the unorthodox pursuit of a class action complaint although representative plaintiff died a year before class certification).
This amount and all amounts stated below are expressed in U.S. money terms.
In 1999, the Department of Labor’s Occupational Health and Safety Administration cited Daewoosa Samoa for a number of safety and health violations, including its failure to maintain the men’s bathroom facilities, equip the toilets with toilet paper, and provide running hot water, in accordance with federal regulations.
Although Lee testified that he invested $5 million, no corporate stock was issued to reflect this investment. In fact, the stock was not distributed until June 2000 when a total of $10,000 one-dollar shares of common stock were distributed amongst the corporate directors, namely Lee acquired 6,000 shares, Ui Seuk Jung 2,000, and Hee 2,000.
All citations in this opinion and order to the JIFSA generally and to specific JIFSA sections include reference to 28 U.S.C.A.
The Floyd court distinguished § 216(b) on other grounds, but generally discussed congressional history regarding § 216(b) including a cite to Sen. Rep. No. 145, 87th Cong. 1st Sess., reprinted in 1961 U.S.C.A.N. 1620, 1659.
Interestingly, after obtaining a preliminary injunction against Daewoosa Samoa and Lee in CA No. 2-00 on January 10, 2000, the Secretary of Labor failed to pursue the permanent injunctive relief requested by his action. The case has since languished as an open file on our docket.
The Chinese workers and Vietnamese workers, who worked in the manufacture of clothing for export, are unquestionably covered by the FLSA, which sets out minimum wage standards for all employees “engaged in commerce.” See 29 U.S.C.A. § 206.
29 CFR § 697(o)(l) reads:
The minimum wages for [the garment, manufacturing] . . . industry is $2.55 an hour effective October 27, 1998, and $2.60 an hour effective September 20, 2000.
The relevant portions of the authors’ comment provides:
The rule [of this Section] applies if the major portion of the *173services called for by the contract is to be rendered in a single state and it is possible to identify this .state at the time the contract is made. It is necessary that the contract should state where the major portion of the services is to be rendered or that this place can be inferred either from the contract’s terms or from the nature of the services involved or from other circumstances.
The importance in the choice-of-law process of the place where the service, or a major portion of the services, axe to be rendered depends somewhat upon the nature of the services involved. This place enjoys greatest significance when the work is to be more or less stationary and is to extend over a considerable period of time. This is true of a contract for employment on the ordinary labor force of a particular factory.
Deductions were not taken out for the Chinese workers’ room and board given our finding that the Daewoosa Samoa provided room and board was substandard. See Part VLB, “Substandard Room and Board,” infra.
In a June 24, 1999 letter to the Chinese workers’ counsel, Daewoosa Samoa agreed to owing an amount of wages equivalent to the accountant’s calculated amount.
Except for the working days of the two deceased IMS Vietnamese workers, the Vietnamese workers’ regular working days were calculated from the first full workweek day after each worker arrived in American Samoa to January 12, 2001. By January 12, 2001, Daewoosa Samoa was non-operational, most of the workers had requested to return to Vietnam or to leave for elsewhere, and a court appointed receiver had assumed full responsibility of the Daewoosa Samoa operation. As for Nguyen Thi Nga, and Dung Kim Thi Vu, their regular working days necessarily ended on the approximate date of their deaths or the last date of their employment, whichever occurred sooner. Accordingly, we calculated Nguyen Thi Nga’s owed back wages to the approximate date of her death, or August 31, 2000. However, because Dung Kim Thi Vu worked only 20 days, and was compensated for these days, she is not entitled to any owed back wages. Our finding does not, however, preclude Dung Kim Thi Vu from entitlement to other class-wide damages in accordance with this decision.
The Food and Nutrition Center is an information branch of the National Agricultural Library, which is part of the U.S. Department of Agriculture, Agricultural Research Service.
In effect, the broad discretion provided a sponsor by American Samoa’s immigration laws may allow a sponsor with an opportunity to take advantage of their sponsored worker, as became evident in this case. However, immigration law reform is a matter for legislative review, not judicial interpretation.
Nguyen Thi Nga’s owed back wages award, and any .other damages she is entitled to, as well as any class-wide damages Dung Kim Thi Vu is entitled to,, shall be made payable to their respective estates, or their equivalents. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486744/ | OPINION AND ORDER
Sipu Suluai (“Sipu” or “decedent”), deceased, and his wife Sefulutasi Suluai (“Sefulutasi” or “plaintiff’) applied for life insurance from the defendant National Western Life Insurance Co. (“NWL”), a corporation with headquarters in Texas. Sipu and Sefulutasi were initially interviewed on July 7, 1997, by NWL’s American Samoa agent Afa Roberts (“Roberts”). Based on answers given by Sipu and Sefulutasi at these interviews, Roberts filled out an application form, a NWL standard form document, which sought, among other things, certain information on each applicant’s medical history. This form required applicants to indicate whether they had been treated for any of a variety of illnesses over the previous five years. NWL delivered a policy on December 15, 1997, on Sipu’s life designating plaintiff as the primary beneficiary. Plaintiffs application, on the other hand, was denied. Sipu died nine months after, on September 26, 1998, within the policy’s “contestability clause” period of two years.
Testimony at trial and a series of letters and faxes exchanged between the parties illuminate how this case developed. On September 8, 1999, plaintiff filed a claim with NWL, enclosing copies of the decedent’s death certificate and insurance policy, demanding the face amount of the policy, $50,000. On September 16, 1999, NWL wrote back requesting additional documents to process the claim, including copies of all medical records from July 1992 until the date of death. NWL pointed out that death had occurred within the contestable period. On October 14, 1999, plaintiffs counsel responded and advised, among other things, that he was attempting to locate the decedent’s medical records, and that the documents would be forwarded immediately upon receipt. On October 26, 1999, NWL requested the decedent’s medical records directly from LBJ Medical Center. On December 3, 1999, plaintiffs counsel wrote NWL that he had tried unsuccessfully to verify that the medical records were sent, and asked NWL if it had yet received the records. He then raised the suggestion that the records were unnecessary for NWL to process the claim because in his opinion the medical *205problems admitted on the insurance application were the same problems resulting in the death of the decedent.
NWL’s December 13, 1999, response indicates where the working relationship between the parties was clearly taking a turn for the worse. In this response, NWL mentioned that plaintiffs counsel had recently told one of NWL’s staff members that the medical records were either lost or destroyed, but that LBJ had not confirmed this. NWL also informed plaintiffs counsel that it was plaintiff, and not the decedent, who had indicated she had diabetes at the time of the application. Once again, NWL then stated it needed the decedent’s medical records before the claim could be further processed.
On March 29, 2000, NWL, citing a lack of communication from plaintiff, offered to refund the premiums paid on the policy. On April 10, plaintiffs counsel responded by citing Texas Insurance Code § 21.21 and asking for payment of the policy in full. No mention was made of the medical records. On April 12, NWL raised their position that the Texas Insurance Code requires an insurer to reject or accept a claim within fifteen business days after the date the insurer receives all forms and documents necessary to secure proof of loss — not simply within fifteen days of the filed claim. NWL also indicated that according to decedent’s employer, he had been treated at LBJ prior to the issue date of the policy. Again, NWL requested that the medical records be provided if located.
Discussion
It is NWL’s theory that the decedent committed a misrepresentation by failing to notify NWL, at the time of application, of what should have been recognized as a major medical condition. Such a misrepresentation would absolve NWL of liability under the insurance contract. See, e.g., Skinner v. Aetna Life and Cas., 804 F.2d 148, 149 (D.C. Cir. 1986).
A. Misrepresentation
A “misrepresentation” in insurance is 1) a statement or representation by omission, made by the insured, that is untrue; 2) that is either made with the intent to deceive or made without knowing it to be trae; 3) that misleads or has a tendency to mislead by causing reliance by the insurer; and 4) that is material to the risk insured. See Mut. Life Ins. Co. v. Hilton-Green, 241 U.S. 613, 621 (1916);Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 282 (Tex. 1994); Hollinger v. Mut. Ben. Life Ins. Co., 560 P.2d 824, 827 (Colo. 1977); 43 Am. Jur. 2d Insurance § 1011 (2000).
*206Roberts, agent of NWL who took decedent’s and plaintiffs applications for life insurance and filled out their applications, testified before this court that he asked decedent whether he had any diseases or had been hospitalized in the five years preceding application. Roberts also testified that while he did not originally recall whether it was decedent or plaintiff who told him about having diabetes at that time, after reviewing the application it was his testimony that only the plaintiff admitted to having diabetes. This testimony is certainly more compelling than plaintiffs counsel’s personal intimation while cross-examining Roberts that the latter had at a later date admitted knowledge of decedent’s diabetes, a conversation Roberts did not recall. A review of the insurance application form itself shows that a box is checked indicating a history of illness, and in the “Details” section it is revealed that plaintiff had diabetes. Roberts’ explanation of how the “Details” section would necessarily include any indication of decedent’s condition, if mentioned, is obviously accurate and, accordingly, the form itself comports with Roberts’ testimony. Additionally, when plaintiffs own insurance was rejected because of her diabetes, neither she nor decedent made any mention of the latter’s diabetes to Roberts.
The insurance application itself was signed by decedent, and while the application clearly indicates that plaintiff suffered from diabetes it conspicuously makes no mention of decedent’s condition. From this signed answer to the application’s inquiries concerning health, we can conclude that decedent made the representation to NWL at the time of application that he did not knowingly suffer from any disease or illness at the time of application, and had not suffered from such for five years preceding application. See, e.g., Phoenix Mut. Life Ins. Co. v. Raddin, 120 U.S. 183, 189-90 (1886); Prudential Ins. Co. v. Barden, 424 F.2d 1006, 1010 (4th Cir. 1970); 43 AM. JUR. 2d Insurance § 1008 (2000) (where an answer of the applicant to a direct question purports to be a complete answer to the question, any substantial omission in the answer avoids a policy issued on the faith of the application). The signed insurance application indicating that only the plaintiff had diabetes, as well as the later rejection of plaintiffs, but not decedent’s, insurance application because of her diabetes, clearly contradict plaintiffs unconvincing suggestion that the decedent told Roberts about his diabetes. No facts support this claim; in fact they all run counter to this testimony.
As evidence of decedent’s knowing affliction with diabetes, NWL has provided evidence that the decedent was treated at the LBJ Medical Tropical Center during the time period relevant to the purposes of the insurance application. The testimony authenticating and commenting on the decedent’s medical records was convincing, as were the records themselves. It is clear that the decedent was knowingly afflicted with *207diabetes during the relevant time period, the five years preceding application for insurance. It is also clear from the extensive medical treatments decedent underwent that he was fully aware of his condition at the time of application. Decedent’s representation of good health was, then, a misrepresentation.
An untrue statement in regard to a matter materially affecting the health of an applicant for life insurance, made by one who knows the statement is not true, allows the insurer to avoid the policy. See 43 AM. JUR. 2d Insurance § 1056 (2000) (the rale is “unanimous”). If a misrepresentation causes the insurer to assume a risk it otherwise would not have taken, or would not have taken at the rate of premium charged, there is a legal ground for avoidance. See Bagwell v. Canal Ins. Co., 663 F.2d 710, 711 (6th Cir. 1981); Allstate Ins. Co. v. Winnemore, 413 F.2d 858, 861-62 (5th Cir. 1969); 43 Am. Jur. 2d Insurance § 1015 (2000). The testimony presented at trial, and logic, both show that the insured risk would change with knowledge of an applicant’s diabetes. An altered risk would alter the chances of approval of the application, and certainly affect the premium rate if the application were granted. Accordingly, decedent’s misrepresentation of his medical condition was a material misrepresentation, and justifies NWL’s avoiding of the policy.
As far as reliance is concerned, it is quite clear from the testimony that NWL relies upon the representations concerning medical condition contained within their potential client’s applications. If no conditions are indicated on the application, and the applicant signs the form, the company relies upon the applicant’s representation of good health and issues the policy accordingly. Because decedent represented to NWL that he was in good health, and he knowingly was withholding information contrary to this representation, and this misrepresentation was material and relied upon by NWL, decedent committed a misrepresentation rendering the policy voidable by NWL, and NWL were thus justified in voiding the policy and denying plaintiffs claim.
2. Article 21. 55 of the Texas Insurance Code
Plaintiff points to Article 21.55 of the Texas Insurance Code and its requirement that insurers accept or reject all claims within 15 business days of receiving all necessary items, statements, and forms required. We conclude that the Texas law does not apply to the situation at hand. There currently are two major approaches to conflict of laws in contract cases: the “significant relationship” rale, promulgated in the Restatement (Second) of Conflict of Laws, and the more traditional conflict-of-laws rales focusing on place of contracting and place of performance. See, e.g., 16 Am. JUR. 2D Conflict of Laws § 86 (1998).
*208Under the significant relationship rule, the rights and duties of the parties are determined by the local law of the jurisdiction that has the most significant relationship to the transaction and the parties. Id.; Restatement (Second) of Conflict of Laws § 188(1). In the case at hand, the contract was applied for and paid for in American Samoa. The contract claim was made in American Samoa. The insurer’s agent is permanently located in American Samoa, as was the insured. The insured’s health was a central issue in this case, and the insured was physically located, and his health was assessed, in American Samoa. The only relationship this case had to Texas was the location of insurer’s headquarters. While the application was assessed at those headquarters, the decedent’s misrepresentation, a central issue to this case, was made in American Samoa.
Under the more traditional place of contract and place of performance standards, the case for applying Territorial law is even stronger. As discussed, the contract was initiated, signed, and enforceable in American Samoa. The claim originated in American Samoa, and plaintiff sought to collect the payout of the claim in American Samoa. NWL was to insure Sipu’s life, and Sipu lived in American Samoa, not Texas. The place of contract and place of performance was American Samoa. American Samoa law controls the rights and duties of the parties.
NWL argued that Texas law does not apply and, even if it did, until the medical records in question were produced, the 15 days cannot begin to toll. The Texas Insurance Code itself shores up NWL’s argument, as § 21.55, Sec. 2(a) provides that investigation and acknowledgement of the claim must begin within the 15 days, it is not a requirement for payment or denial within that period of time. NWL produced extensive evidence that it was actively engaged in attempting to obtain the records necessary to assess plaintiffs claim, evidence which included correspondence with plaintiffs counsel, where plaintiffs counsel first appeared to be assisting in obtaining the documents and later claimed they were destroyed. Decedent’s death was well within the period of contestability in which the NWL could contractually request medical information before paying a claim. Even if we found that Article 21.55 of the Texas Insurance Code applied, we would be compelled to conclude that NWL was not in violation of Texas law because of NWL’s diligent efforts to obtain relevant information — clearly behavior antithetical to the sort of abuse that Texas law was intended to prevent.
For reasons given, judgment will enter for defendant NWL.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486745/ | ORDER GRANTING MOTIONS TO STAY EXECUTION OF JUDGMENT PENDING DECISION ON MOTION FOR NEW TRIAL AND APPEAL
The decision of the Court on the cross-claim of cross-claimant NTV Electronics (“NTV”) and Manager Ning Tan (“Tan”) against cross-defendant Progressive Insurance Company (Pago Pago), Ltd. (‘Progressive”) was entered on March 18, 2002. The Court has under advisement the motion of Progressive for reconsideration or new trial regarding the Court’s decision.
Meanwhile, NTV and Tan served a writ of garnishment to reach Progressive’s funds deposited with the Bank of Hawaii and Amerika Samoa Bank to enforce their judgment against Progressive. In response, Progressive moved to stay execution of the judgment pending the Court’s ruling on the reconsideration or new trial motion and, if necessary, pending appeal. On June 12, 2002, we heard the stay motion and, having considered counsel’s arguments, will grant the motion.
The court has discretion to stay execution or other process to enforce a judgment pending disposition of a motion for new trial upon appropriate conditions to secure the interests of the prevailing party at trial. T.C.R.C.P. 62(b). Similarly, the court has discretion to grant a stay pending appeal upon the filing of a supersedeas bond approved by the court. T.C.R.C.P. 62(d); see also A.S.C.A. § 43.0803. Progressive is prepared to post a bond in the principal amount of the judgment, $54,506.80.
*211Factors to consider in deciding whether a stay should be granted include: (1) the likelihood of the movant would prevail on the motion or appeal; (2) irreparable harm to the movant if a stay is not granted; (3) irreparable harm to the other party if a stay is granted; and (4) a stay’s effect on the public interest. See Asifoa v. Lualemana, 17 A.S.R.2d 100, 102 (App. Div. 1990). Ability and availability of. funds to pay the judgment, and other difficulty in the collection process are particularly relevant to money judgments. See Euta v. Etimani, 25 A.S.R.2d 54, 55 (Trial Div. 1993).
The motion for reconsideration or new trial raises serious questions concerning the sufficiency of the evidence and other legal matters that we must resolve in deciding the motion, or that the appellate court must resolve if we deny the motion and Progressive appeals. The judgment is for money. If the stay is granted, NTV and Tan will lose the immediate financial benefit of the judgment, but post-judgment interest will provide adequate compensation for the delay. The bank garnishments impede Progressive’s normal business operations. Moreover, should Progressive ultimately prevail, it may not be readily able to recover funds already paid on the judgment. On balance, the harm to Progressive outweighs the harm to NTV and Tan by a significant margin. The public interest in Progressive’s ability to readily meet its insurer obligations is also apparent. Related to the public interest, the amount of the proposed bond adequately protects NTV and Tan should they ultimately prevail. We will, therefore, grant Progressive’s motion for a stay of execution of judgment pending decision on the motion for new trial, subject to Progressive filing a bond in the amount of $54,506.80.
Strictly speaking, Progressive’s motion for a stay of execution of judgment pending appeal is premature. However, if eventually the motion for reconsideration or new trial is denied and Progressive appeals, it would be appropriate in this case to keep the bond continuously in effect and replace the stay of execution of judgment pending decision on the motion for new trial with a stay of execution of judgment pending appeal. See Wolfgang v. Mid-American Motorsports, Inc., 914 F. Supp. 434, 440-441 (D.C. Kan. 1996).
Order
1. We grant Progressive’s motion for a stay of execution of judgment.
2. Execution of the judgment is stayed pending the court’s decision on the motion for reconsideration or new trial. The stay shall apply to the ongoing garnishment proceedings and any future garnishment or other execution proceedings when the stay becomes effective. The stay shall become effective upon the court’s approval of a bond in the amount of *212$54,506.80 to be filed by Progressive in this action.
3. The foregoing stay applies to the ongoing garnishment proceedings. When the stay become effective, the writ of garnishment issued on April 26, 2002, is quashed, and Progressive’s funds held by the Bank of Hawaii and Amerika Samoa Bank are released from garnishment.
4. Should we deny Progressive’s motion for reconsideration or new trial and Progressive appeals, execution of the judgment is stayed pending appeal, replacing the execution of the judgment pending decision on the motion for new trial, and the bond posted in the amount of $54,506.80 shall automatically remain in effect as security for the stay pending appeal. Any party may, however, then move for termination or appropriate modification of the stay pending appeal.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486746/ | ORDER DENYING MOTION TO DISMISS
The defendant Wang Zhi Guo Wang (“Wang”) is charged with one count of Promoting Prostitution in the Second Degree, and two counts of Abuse of a Child. Defendant moves to dismiss the information on the ground of vagueness.
Recycling word for word, except for minor factual adjustments, a Memorandum of Points and Authorities previously filed on June 22, 2000, by the Public Defender’s office in American Samoa Government v. Faumuina, 4 A.S.R.3d 196 (Trial Div. 2000), Wang argues that the information fails to conform with the specificity requirements of T.C.R.Cr.P. Rule 7(c)(1), which requires that “the information shall be a *214plain, concise and definite written statement of tbe essential facts constituting the offense charged.” He thus challenges the sufficiency of the information contending a violation of his right to be informed of the “nature and cause of the accusation” against him under the Sixth Amendment of the United States Constitution, and under Article I, Section 6 of the Revised Constitution of American Samoa.
Discussion
I.
The Supreme Court in Russell v. United States, 369 U.S. 749, 763 (1962), set out two criteria by which the sufficiency of the information is to be measured: 1) whether the facts stated show the essential elements of the offense charged to enable him to prepare his defense; and 2) whether the facts alleged are sufficient to ensure against double jeopardy in a second prosecution.
The information filed in- Faumuina charged three separate criminal offenses, sexual abuse in the first degree, assault in the second degree, and assault in the third degree. 4 A.S.R.3d at 196. The Court found the information wanting in “essential facts” sufficient to notify defendant of the charges filed against him as required by T.C.R.Cr.P. Rule 7. See 4 A.S.R.3d at 197-98. The information there filed not only failed to name the victims in all three counts, but it also failed to appraise the defendant of the particular acts for which he was charged. Id. at 197. Instead, the information simply tracked the generic language employed by the statute to describe each offense, while at the same time, the 'wo more serious counts merely alluded to a range of dates, encompassing the span of a month, within which the offending conduct was said to have been committed. Id. Under these circumstances, the Court was concerned with the defendant’s potential exposure to multiple prosecution possibilities for the same crime on different theories. Id. The Faumuina Court, did not, however, order dismissal but required the prosecution to file a bill of particulars. Id. at 198.
In contrast, the double jeopardy concerns of Faumuina are not evident here. The subject offenses before the Faumuina Court were all single act specific crimes, whereas the crimes charged in the matter at bar may be based on a continuing course of conduct, and not merely on any one event. “A continuing offense may be charged without specifying individual acts as a basis for criminal conduct.” State v. Elliot, 785 P.2d 440, 444 (Wash. 1990). In Count 1, the offense, promoting or advancing prostitution, addresses a person, acting other than as a prostitute, doing something that promotes or aids others to engage in prostitution. In other words, it is the result of a continuing course of conduct advancing *215prostitution and not any particular instance of prostitution itself that is key. Similarly, in Counts 2 and 3, the charges of Abuse of Child relate to a continuing course of conduct-permitting or encouraging a child to engage in prostitution, and not any particular occasion of prostitution. The subject enactments speak to a continuing offense that can be charged without specifying individual acts. In both situations, promoting prostitution and abuse of child, the jury does not need to agree that the victims had committed a particular act of prostitution in order to convict.
An information using only statutory language is quite permissible as long as the statute sets forth “fully, directly and expressly, without any uncertainty or ambiguity, all the elements necessary to constitute the offence intended to be punished.” Hamling v. United States, 418 U.S. 87, 117-18 (1974). There is a key difference between a defendant’s constitutional right to know what offenses he is charged with and his desire to know the evidentiary details of the prosecution’s case. United States v. Williams, 679 F.2d 504, 509 (9th Cir. 1982).
In our view, the information sufficiently states the elements of the offenses, fairly informing the defendant of the charges against him so as to enable him to plead former jeopardy in a subsequent prosecution. Moreover, the Affidavit in Support of the Criminal Complaint, filed March 3, 2002, more than adequately appraises Wang of some of the underlying facts predicating the charges against him so as to adequately facilitate the preparation of his defense and avoid prejudicial surprise at trial. Wang is expected to look at all of the sources provided by the government and not simply at the information formally charging him with the crime. Am. Samoa Gov’t v. Wilson, 24 A.S.R.2d 26, 29 (Trial Div. 1993) (citing C. Wright, Federal Practice and Procedure § 129, at 437 (1982)).
II.
Wang next claims that even if sufficient facts are alleged for Counts 2 & 3, no violation of the Child Abuse Law is alleged. Wang submits that under A.S.C.A. § 45.2001(a)(1)(B), when prostitution is the conduct at issue, the victim must be “subject to the sexual offenses contained in 46.3601 to 46.3617 and 46.3802” in order for Child Abuse to have occurred. Wang then contends that since the offenses delineated in the above statute, A.S.C.A. 46.3601 to 46.3617 and 46.3802, all require the victim to be younger than 17 years of age, the victims in this case being 17 years of age, the sex was consensual and not within the statute.
This is a misreading of the statute by the defendant. A.S.C.A. § 45.2001(a)(1)(B) reads as follows:
*216(a)(1) “Abuse” or “child abuse or neglect” means an act or omission in one of the following categories which seriously threatens the health or welfare of a child:
(B) when a child is subject to the sexual offenses contained in 46.3601 to 46.3617 and 46.3802, or is allowed, permitted, or encouraged by the child’s parents, legal guardian, custodian, or any other person responsible for the child’s health and welfare, to engage in prostitution or be the subject of • obscene or pornographic photographing, filming, or depicting;
The statutory language of A.S.C.A. § 45.2001(a)(1)(B), is presented in the disjunctive, dividing the provision into three sections; sex crimes, prostitution and pornography. As the charges in this matter relate to prostitution, and not sex crimes, the age provisions of A.S.C.A. 46.3601 to 46.3617 and 46.3802 are irrelevant. What is required is that the victims be “a person under 18 years of age” and therefore come within the definition of a “child” under the statute. A.S.C.A. § 45.0103(3). The facts as alleged in the information put the victims within the definition of a child, and therefore within A.S.C.A. § 46.3811.
For reasons given, the motion to dismiss is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486747/ | ORDER DENYING PLAINTIFF’S MOTION FOR NEW TRIAL/RECONSIDERATION
On May 10, 2002, this Court filed its decision and order in this matter entering judgment in favor the defendant National Western Life Insurance Company (“NWL”) and against plaintiff Sefulutasi Suluai (“Suluai”). Suluai filed her motion for new trial and/or reconsideration on May 21, 2002.
The motion is not grounded on anything of substantive import going to the merits. Rather, the motion generally asserts reversible error (1) in allowing defense counsel the opportunity to talk to a witness, Afa Roberts (“Roberts”), in the midst of his being examined by Suluai’s counsel, in derogation of Suluai’s rights to a fair trial and to due process; and (2) that as a result, the appearance of partiality of the panel of judges *218was thereby reasonably put into question. Consequently, Suluai believes that recusal is warranted.
A. Pair Trial and Due Process
Suluai asserts that the Court’s action in allowing defense counsel to consult with Roberts, “in private,” somehow deprived her of her “rights to a fair trial and to due process.” (See Pl.’s Mot. for Recons, or New Trial and Mem. of Supp. Points and Authorities 1). Without articulating the argument, or providing any elaboration whatsoever, Suluai is simply content to direct us to “U.S. Const. Amends. V & VI; American Samoa const. Art. sec. 2; 75 AM. Jur. 2d Trial § 191 (1991),” and to “Executive Order 11222, signed by President Johnson, circa 1968.” (See Pl.’s Mot. for Recons, or New Trial and Mem. of Supp. Points and Authorities 2). In essence, the Court is left to guess as to what the argument might be. As we have said countless times in these matters:
What is essential to a motion for a new trial is that it. . . fully apprises the court of the asserted errors in the judgment... so that the trial court may consider for itself whether any such errors occurred and make appropriate corrections thereby obviating obvious appeals.
Am. Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114, 119-20 (Trial Div. 1990). Thus, the Appellate Division has said:
All motions [for new trial] must “state with particularity the grounds therefor.” T.C.R.C.P. Rule 7. This is particularly important in the case of a motion for new trial, who'Se purpose is to avoid unnecessary appeals by alerting the trial court to possible errors or omissions in its opinion.
Kim v. Star-Kist, 8 A.S.R. 146, 150 (App. Div. 1988). Additionally,
[i]f no timely motion for reconsideration or new trial conforming to the “particularity” requirement of T.C.R.C.P. 7(b)(1) is filed within the statutory ten-day deadline, then the Appellate Division lacks jurisdiction to entertain an appeal.
Taulaga v. Patea, 17 A.S.R.2d 34, 35 (App. Div. 1990). Moreover, this Court recently had cause to sternly warn Suluai’s counsel, Mr. Miller, in another matter that “this Court, [is] . . . ‘not paid ... to do legal research that should be done by the attorneys, nor to guess at or construct the legal theory upon which a losing party might oppose our decision.’” Progressive Ins. Co., Ltd. v. Southern Star Int’l, 6 A.S.R.3d 112, 129 (Trial Div. 2002) (quoting G.M. Meredith and Assocs. v. Blue Pac. *219Mgm’t Corp., 28 A.S.R.2d 1, 2 (Trial Div. 1995)).
The requirements of procedural due process are not fixed but vary with circumstances and the particular requirements of the case, minimally demanding notice and an opportunity to be heard. Ferstle v. Am. Samoa Gov’t, 7 A.S.R.2d 26, 49 (Trial Div. 1988) (citing Parratt v. Taylor, 451 U.S. 527 (1981); Mathews v. Eldridge, 424 U.S. 319 (1976)). As the motion is not clear on the asserted ground of “fair trial” and “due process,” and as we are not inclined to guess or construct a legal theory for movant, the motion will be denied on this ground.
B. Appearance, nf Partiality and Recusal
As Suluai’s second ground — the appearance of partiality claim — this is even more nebulous than the first and appears to be nothing more than a normative submission. The Court, in allowing defense counsel the opportunity to consult with his client, interrupting his examination by Suluai’s counsel, was not unmindful of its duty to maintain the appearance of impartiality.1 Quite the contrary, the Court was in fact motivated in its action by its very cognizance of that duty.
The factual backdrop to the Court’s course of action is as follows: Suluai is a local resident, while NWL is an off-island corporate entity with headquarters in Texas selling certain classes of insurance in the Territory.2 Roberts, who was simply characterized in Plaintiffs memorandum of points and authorities as “a material witness,” also happens to be NWL’s general agent in American Samoa. Roberts, on behalf of NWL, actually dealt with Suluai and her late husband culminating in NWL’s issuance of a certain policy of life insurance that became the subject of proceedings before the Court. While Roberts was on the stand under examination by counsel Miller on direct, in the manner of a hostile witness with leading questions, counsel sought to impeach NWL by asking Roberts whether he recalled a conversation with him whereby Roberts had in effect admitted to counsel knowledge of the insured’s diabetic condition at the time of latter’s application for insurance. At that point in the examination, defense counsel Hall *220strongly objected to the question on grounds of inappropriate contact by Counsel Miller with his client.3 Mr. Hall expressed surprise and concern at the possibility of confidential communication between he and Roberts being delved into by counsel Miller.
The Court thereupon, in its informed discretion, decided to take ameliorative action as best as the circumstances allowed, without needlessly having to delay trial by getting bogged down in a separate and collateral hearing, by taking a short recess in order to afford counsel Hall the opportunity to immediately ascertain from Roberts the nature and extent of any contact with Suluai’s counsel outside of Mr. Hall’s knowledge.
The Court was very much concerned about a fair trial — that the defense be not unfairly comprised by an inappropriate contact by opposing counsel. As it turned out, counsel Miller had indeed contacted Roberts a week before trial, but the Court opted to leave the collateral issue of professional misconduct for another day.4 After the recess, Mr. Miller was allowed to have his question answered without further objection from defense counsel.
It goes without saying that “fairness” here is a two-way street, in *221demand by all parties. The intervening ado would not have arisen in the first place, had Suluai’s counsel paid closer attention to appropriate rules governing professional conduct, while taking advantage of pre-trial discovery measures available in this jurisdiction to properly speak with Roberts. Under the circumstances, Suluai, as well as NWL, each had their day in Court. The motion for recusal on the grounds of appearance of partiality is utterly without merit.
For reasons given, Suluai’s motion for new trial/reconsideration is, therefore, denied.
It is so ordered.
See H.C.R. 103, incorporating Canons of Judicial Ethics, Canon 3(C)(1); In re Matai Title Faumuina, 26 A.S.R.2d 1, 5-7 (App. Div. 1994).
There is no federal district court in the United States Territory of American Samoa. In every other jurisdiction under the American flag, the defendant would have access to a federal district corut under its diversity jurisdiction. 28 U.S.C. § 1332. The customary rationale given for diversity jurisdiction in the federal courts is the fear of parochial bias against a citizen from out of state. See, e.g., United States v. Deveaux, 5 Cranch 61, 87, 3 L.Ed. 38 (1809).
A.B.A. Model Rule of Professional Conduct (1983) 4.4, adopted by H.C.R. 104, reads:
[A] lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer . . . unless the lawyer has the consent of the other lawyer.
Counsel Miller attempted to diffuse his predicament by subsequently stating on the record that the contact with Roberts that he was referencing had in actuality taken place in December 1999, a month before he filed his client’s complaint. Roberts, on the other hand, testified that he could not recollect having such contact with Miller back in December 1999, as it was some time ago, but he definitely remembered his being contacted by counsel Miller “last week.”
Astonishingly, Miller also submitted that witness Roberts was not a client of counsel Hall’s. Counsel Miller would do well to revisit or appraise himself of A.B.A. Model Rule of Professional Conduct (1983), Rule 4.4, Comment (“In the case of an organization, the Rule prohibits communications by a lawyer for one party concerning the matter in representation with . . . any person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil.. . liability.”). Miller’s whole purpose in asking Roberts about their contact was to get Roberts to admit knowledge as to the policyholder’s pre-existing medical condition prior to issuance of the life insurance policy at issue. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486748/ | ORDER DENYING MOTION FOR RECONSIDERATION OR NEW TRIAL
On May 14, 2002, the jury in this action convicted defendant Mataio Vaai (“Vaai”) of three counts of child molesting, in violation of A.S.C.A. § 46.3618, each a class A felony punishable by a minimum term of imprisonment of 10 years, without probation or parole. On June 14, 2002, the Court adjudicated Vaai guilty of the three offenses and sentenced him to 10 years’ imprisonment on each count, the counts 2 and 3 terms of imprisonment to be served concurrently with each other and consecutively to the count 1 term of imprisonment.
Vaai moved for reconsideration or new trial on June 24, 2002. The Court heard the motion on July 18, 2002. Vaai was present with counsel. *223Plaintiff American Samoa Government’s counsel was also present The Court, having considered counsel’s argument, will deny the motion, with the following comments on two of the issues raised by the motion.
Discussion
A. Admissibility of the Child Witness Testimony
The victim was eight years of age when she testified at the trial about events that occurred when she was five years of age and again when she was seven. Vaai now claims that the victim was incompetent because of certain flaws in her testimony.
Generally, “[e]very person is competent to be a witness.” T.C.R.Ev. 601. This rule raises a presumption of competence that, nonetheless, can be rebutted. Vaai tried doing so at trial, and we held a voir dire to determine whether the child could testify.1 When determining a child’s competency, there is no precise cut-off age. Instead, we determine whether the child has:
(1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it.
Jenkins v. Snohomish County Pub. Util., 713 P.2d 79, 81 (Wash. 1986). This determination is a matter of law, for the trial judge, and will not be disturbed unless it is clear the judge abused his discretion. See State v. Stewart, 641 So.2d 1086, 1089 (La. Ct. App. 1994). After reviewing the record, we affirm that our ruling was proper. Inconsistencies in the child’s testimony do not speak to the child’s competency but, instead, go to her credibility. See Feleke v. State, 620 A.2d 222, 226 (Del. 1993); Hesler v. State, 431 S.E.2d 139, 140 (Ga. Ct. App. 1993); People v. Dist. Court, 791 P.2d 682, 685 (Colo. 1990) (under state statute, child need not be able to understand what it means to take an oath and tell the truth to be declared competent). Matters of credibility, of course, are within the exclusive function of the jury. Am. Samoa Gov’t v. Tauala, 25 A.S.R.2d 179, 180 (Trial Div. 1994).
*224B. Tnry Instruction nn Sexual Abuse in the First Degree
At trial, Vaai requested an instruction on sexual abuse in the first degree as a lesser-included offense of child molesting. We refused to give such an instruction. Vaai now claims that it was reversible error.2 Vaai’s contention, however, hinges on his argument that we should infer that the crime of child molestation implicitly requires an intent to gratify sexual desire.3 That language, in turn, comes from the statutory definition of “sexual contact.”4 Sexual abuse in the first and second degree are the only offenses to date that include sexual contact as an element.5
Vaai’s argument is illogical. Were we to infer such an intent, sexual abuse in the first degree would still not be a lesser-included offense of *225child molestation. A lesser-included offense is one whose elements are a subset of the charged offense. See Schmuck v. United States, 489 U.S. 705, 716 (1989); A.S.C.A. § 46.3108. Under Vaai’s argument, sexual abuse in the first degree would not be a subset but, rather, it would be an independent offense with its own penalty provision. Granted, there would be substantial overlap between the two statutes; but we have upheld such overlap in the past. See generally Am. Samoa Gov’t v. Whitney, 20 A.S.R.2d 29 (Trial Div. 1991) (finding that the sodomy, A.S.C.A. § 46.3611, and deviate sexual assault, A.S.C.A. § 46.3612, statutes did not violate due process even though they both punished identical conduct); Am. Samoa Gov’t v. Macomber, 8 A.S.R.2d 182 (Trial Div. 1988); see also United States v. Stanley, 928 F.2d 575, 581 (2d Cir. 1991) (government can choose between different statutory penalty schemes applicable to the same conduct).
In such a situation, when “there are overlapping statutes providing different penalties ... no lesser offense instruction need be given.” 26 James Wm. Moore etal., Moore’s Federal Practice § 631.10(4)(c) (3rd ed. 1999) (citing Sansone v. United States, 380 U.S. 343, 351-353 (1965)); see also Schmuck, 489 U.S. at 716 n.8 (lesser included offense instruction only given if facts of case allow jury to find defendant guilty of lesser included offense but acquit him of the greater). “To hold otherwise would invite the jury to pick between the two offenses in order to determine the punishment to be imposed, a duty traditionally left to the judge.” 3 Charles Alan Wright, Federal Practice and Procedure § 515(1982).
Nonetheless, in any event, we will not infer such an intent requirement in the face of legislative clarity. See Whitney, 20 A.S.R.2d at 32 (no ambiguity in statutory language of very similarly worded criminal provisions). “When some statutory provisions expressly mention a requirement, the omission of that requirement from other statutory provisions implies that Congress intended both the inclusion of the requirement and the exclusion of the requirement.” West Coast Truck Lines v. Arcata Comm, Recycling, 846 F.2d 1239, 1244 (9th Cir. 1988) (emphasis in original). Clearly the Legislature intended the exclusion of “sexual contact” as an element of child molesting as evidenced by their inclusion of “sexual contact” as an element of other offenses. See Am. Samoa Gov’t v. Masaniai, 4 A.S.R.2d 156, 159 (Trial Div. 1989) (refusing to infer intent to sexually gratify into sodomy statute, A.S.C.A. § 46.3611). The language also reflects a rational decision to not punish “sexual contact” of a child under 12 as severely as “deviate sexual intercourse” or “sexual intercourse” with a child under 12.
Additionally, we find no merit to Vaai’s argument that without the element of “sexual contact,” the child molestation statute is *226unconstitutionally broad. Vaai argues that it will lead to prosecutions of parents who, for any reason, touch the genitals of their child while exercising their constitutionally protected right of caring for that child. This rhetoric sweeps too broadly. Child molesting is limited to situations where an adult engages in “deviate sexual intercourse” or “sexual intercourse” with a minor of 12 years or under. Deviate sexual intercourse is defined as any "sexual act involving the genitals of one person and the mouth, tongue, hand, or anus of another person.” A.S.C.A, § 46.3601 (emphasis added). Sexual Intercourse is defined as “any penetration, however slight, of the female sex organ by the male sex organ, whether or not an emission results.” Id. Clearly these definitions do not apply, for example, when a parent changes his child’s diaper or when a doctor performs a gynecological examination. See Masaniai, 4 A.S.R.2d at 159. Indeed, they would never apply to ordinary, everyday parent/child or doctor/child interactions.
The motion for reconsideration or new trial is denied.
It is so ordered.
A second child witness, age nine, testified during the trial. Vaai is not challenging this witness’ competency in his present motion. However, we note that we followed the same voir dire procedure and found this child was also competent to testify under the applicable standards.
Indeed, a “Court has no discretion to refuse to give a lesser-included instruction if the evidence warrants the instruction and the defendant requests it.” United States v. Baker, 985 F.2d 1248, 1259 (4th Cir. 1993). See also A.S.C.A. § 46.3108.- '
That language is not found within the statute, A.S.C.A. § 46.3618, which reads:
46.3618 Child molesting
(a) Notwithstanding any other provision of this chapter, a person commits the crime of child molesting if he engages in sexual intercourse or deviate sexual intercourse with a minor of the age of 12 years or under.
The statute, A.S.C.A. § 46.4601, reads:
46.4601 Definitions:
(b) “Sexual contact” means any touching of the genitals or anus of any person, or the breast of any female person, or any such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person.
(emphasis added).
The statutes, A.S.C.A. §§ 46.3615 and 46.2616, read:
§ 46.3615 Sexual abuse in the first degree.
(a) A person commits the crime of sexual abuse in the first degree if:
(1) he subjects another person to whom he is not married to sexual contact without that person’s consent or by the use of forcible compulsion; or
(2) he subjects another person who is 14 years of age or less to sexual contact.
§ 46.3616 Sexual Abuse in the second degree.
(a) A person commits the crime of sexual abuse in the second degree if he subjects another person to whom he is not married to sexual contact without that person’s consent.
(emphasis added). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486684/ | *14ORDER DENYING MOTION FOR IMMEDIATE REVIEW OF APPEAL PROCEDURE UNDER ADMINISTRATIVE LAW JUDGE ACT
On November 19, 2001, petitioner petitioned this court for judicial review of the decision of the Administrative Law Judge (“ALJ”) in the proceeding ALJ (PRNS) No. 001-01. On the same date, petitioner moved for immediate review of the ALJ’s interpretation of the appeal procedure under the Administrative Law Judge Act, A.S.C.A. §§ 4.6001-.0608, and the parties stipulated for a hearing on this issue.
We deny without prejudice the request for an early hearing on the procedural issue to pursue the issue when and if we proceed with the petition for judicial review. The process on petitioner’s motion for reconsideration or new trial, pursuant to T.C.R.C.P. 59 and A.S.C.A. § 4.0607(b), pending before the ALJ should be completed first, and then, if the motion is denied and upon petitioner’s request, we will proceed with the petition for judicial review.
For the parties’ guidance, upon petitioner’s request to proceed with the petition for judicial review following any denial of the pending motion for reconsideration or new trial, the entire record of the administrative proceeding, including transcripts of hearings, shall be filed within 30 days of petitioner’s request to proceed. The parties shall then file briefs in accordance with A.C.R. 31.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486685/ | ORDER ON MOTION TO DISMISS DEFENDANT AINOAMA FATA dba NOFO’S STORE
*18Background
On or about August 8, 2000, defendants Southern Star International, Inc. dba Hong Kong Restaurant (“SSI”), and Kenny and Helen Young (the “Youngs”) filed a motion to dismiss defendant Ainoama Fata dba Nofo’s Store (“Fata”). In the alternative, SSI and the Youngs ask for summary judgment as to all claims made by Fata. The motion was set for hearing on October 27, 2000. However, the motion was not heard, nor was it brought to the Court’s attention until counsel for SSI and the Youngs raised it during a pre-trial conference hearing held on January 10, 2001, in preparation for this week’s trial.1
Standard of Review
A motion to dismiss for failure to state a claim will be denied unless it appears beyond doubt that no set of facts can be proven which would entitle a defendant in interpleader to relief. See Moeisogi v. Faleafine, 5 A.S.R.2d 131, 134 (Land & Titles Div. 1987). In considering a 12(b)(6) motion, all material allegations in the complaint are taken as true and construed in the light most favorable to the defendant. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The burden of proving the absence of a claim rests on the movant. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).
Discussion
SSI and the Youngs allege that Fata failed to assert a claim to the stake at issue. Contrary to this allegation, in her answer and cross-claim, which was filed March 30, 2000, Fata avers that under the terms of a lease agreement, SSI and the Youngs agreed to indemnify Fata for losses or injury to the leased property. The leased property is the same property insured under the fire/material damage policy, No. 000600720 (“fire policy”), which is the stake at issue in this case. On April 7, 2000, subsequent to Fata’s filing of her answer and cross-claim, we granted the first stage of interpleader joining as defendants SSI, the Youngs, and Fata.2 In so doing, we explained that, as is the appropriate procedure for *19interpleader cases, the merits of the claims are to be considered in the second stage of interpleader or at trial.
SSI and the Youngs equate Fata’s claim to the stake at issue with that of Tutuila International, Inc., and NTV Electronics, which we dismissed from this action on July 25, 2000. In contrast to Fata’s claims, we found Tutuila International, Inc. and NTV Electronics’ basis for relief was premised upon another insurance policy, a liability policy issued by Progressive, No. 000600721 (“liability policy”) and not the fire policy, which is the stake at issue in this case. Furthermore, unlike Fata’s answer and cross-claim, Tutuila International, Inc. and NTV Electronics did not file their answer until April 28, 2000, over four and a half months after the complaint was filed.
In considering Fata’s pleadings with the requisite liberality, and given her asserted interest in the stake, which we construe as true and in the light most favorable to her, we find that SSI and the Youngs have failed to show beyond a doubt that Fata can prove no set of facts that would entitle her to the stake at issue. Furthermore, in keeping with our earlier order granting interpleader, we continue to find that the interest of judicial efficiency and fairness mandate the simultaneous adjudication of Fata’s claims in this case, the merits of which should await the second stage of interpleader or trial. Based upon the foregoing, SSI and the Youngs’ motion to dismiss is denied. The alternative application for summary judgment is also denied.
It is so ordered.
Rather than wait until two weeks before trial, counsel for SSI and the Youngs should have alerted the Court to the fact that their motion filed August 8, 2000 had yet to be heard. Even if not heard on October 27, 2000, a subsequent hearing was had on November 3, 2000, at which time counsel had ample opportunity to inform the Court of its filed motion.
Progressive, the stakeholder, is also a party to this case. Although the stakeholder is, in the usual case, discharged at the first stage of interpleader, we did not discharge Progressive in this case since SSI and the Youngs assert that Progressive has an obligation to pay greater than *19the amount of the stake at issue. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486689/ | OPINION AND ORDER
I. Background
On February 16, 1992, Virginia Gibbons (“Gibbons”) was beaten and sexually assaulted at her home in the government housing complex in Tafuna by Maosi Fuala'au, a prisoner who had escaped from the government’s Correctional Facility in Tafuna. The prisoner had been incarcerated for a previous sexual assault in the same housing complex. Gibbons brought suit against the American Samoa Government (“ASG” or “the government”) to recover damages for injuries she sustained as a result of the attack.
On February 2, 1998, the Court bifurcated the trial into two phases. The first phase (“Trial I”) dealt solely with liability. In its Opinion and Order dated April 26, 1999, the Court rejected ASG’s argument that it was immune under the Government Tort Liability Act, A.S.C.A. § 43.1203, and held ASG liable in its capacity as custodian of the prison for negligently failing to prevent the prisoner from escaping from the Correctional Facility and sexually assaulting Gibbons. The Court found ASG negligent in its operation of the Correctional Facility by providing inadequate security. ASG was deemed not liable as the landlord of the government housing complex in Tafuna.
*39Having found liability in the first phase of this case, the issues before the Court involve only the proper measure and amount of damages.
II. Causation
ASG argues that it is not responsible for injuries inflicted by a third party. However, to be liable for negligent conduct, a party’s actions must be a “substantial factor in bringing about the harm.” RESTATEMENT (SECOND) OF TORTS, § 431 (1965). Even when another party’s actions are a cause of harm, that party is not absolved of responsibility if its negligent action creates the foreseeable risk of harm and is a substantial factor in causing the harm. Id. at § 442A.
In the first phase of this case, the court found that Gibbons was injured as a result of ASG’s negligence and that preventing such injuries was within the scope of the duty breached by ASG. Gibbons v. Am. Samoa Gov’t, 3 A.S.R.3d 135, 138-44 (Trial Div. 1999). The Court has therefore already found that ASG proximately caused Gibbons’ injuries, and we decline to revisit this issue in the damages phase of trial.
III. General Damages
Gibbons is entitled to an award for general damages. While most of the cases in the Territory have involved primarily physical, rather than emotional, injuries, they are instructive in determining a fair award.
Nine years ago, the Court assessed awards in the Territory by stating, “fairly mild injuries frequently result in awards or settlements in the range of $10,000, but even the most serious and painful injuries rarely result in awards over $50,000.” Moors v. Am. Samoa Gov’t, 19 A.S.R.2d 67, 68-69 (Trial Div. 1991). Even in cases of serious injury, general damages in the Territory rarely rise to the amounts awarded in other American jurisdictions. See Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146, 151 (App. Div. 1988). General damages depend on the particular circumstances of the case, and awards vary significantly even in cases of serious injuries. In Moors, the Court assessed damages for the permanent loss of use of an eye by a child, future eye surgery, and possible minor permanent disfigurement. The Court considered the loss of an eye a serious injury regardless of actual pain and suffering, and awarded the plaintiff $20,000. Moors, 19 A.S.R.2d at 68 (figure prior to decrease for plaintiffs negligence). In contrast, the Court in Kim awarded $80,000 to a fisherman whose injuries included facial lacerations and contusions, a crashed rib cage, and fractures in his cheek bone, eye socket, femur, and pelvis. Kim, 8 A.S.R. 2d at 150-51. The Kim award was one of the largest awards for pain and suffering in the Territory up to that time. Id. at 151.
*40In Masania'i v. The Country Club, 2 A.S.R.3d 120, 131 (Trial Div. 1998), the Court awarded $100,000 in general damages, including pain and suffering. In deciding on this amount, the Court considered plaintiffs past and present circumstances, including the fact that the plaintiff, previously a gainfully employed police officer, was rendered unable to care for himself. Id. The Court also considered his bleak prognosis, uncertain future, and multiple debilitating injuries. Id.
This Court has considered the extent of both the physical and emotional injuries Gibbons has suffered as a result of the attack against her, including her PTSD and depression (as discussed below), her inability to return to her career, her difficulty in relationships with people, and her uncertain prognosis. The Court awards Gibbons $100,000 in general damages.
IV. Special Damages
In addition to general damages, Gibbons makes a number of claims for special damages, including for medical treatment for physical and emotional injuries, lost wages, and lost leave. These are considered as follows.
A. Physical injuries
Gibbons’ physical injuries were discussed in Trial I. There is no question that the assault caused Gibbons’ physical injuries, which included many scratches and bruises to her mouth, neck,-chest, shoulders, arms, thighs and vagina. (Trial I Ex. 11, Gibbons Medical Report, dated February 20, 1992). Gibbons has not requested damages for treatment of these physical injuries, probably because American Samoa’s LBJ Medical Center only assesses minimal charges for resident care.
Gibbons has, however, requested damages for off-island medical treatment. She has submitted medical bills from 1992 for tests she underwent for AIDS and other sexually transmitted diseases and infections in Honolulu, Hawaii, at a cost of $354. (See Trial II Ex. 14, Physical and Mental Health Treatment Related Expenses at 1 (summarizing expenses by category and year).) The Court accepts that the tests for AIDS and other sexually transmitted diseases were necessitated by the rape, and we find that Gibbons is entitled to reimbursement for these expenses.
Gibbons has also stated that she received internal injuries consisting of a contusion and a possible rib fracture. She submitted bills from treatment by Lie-Ping Chang, D.O., FACGP for osteopathic manipulation, treatment described as “OMT, additional region,” and various laboratory *41tests. (Trial II Ex. 11.) The summary of expenses indicates that Chang’s treatment was for musculo-skeletal symptoms involving pain in the jaws, neck, chest and spine, muscle spasm and restricted range of motion in the joints. She had numerous appointments with Chang, totaling $3,220.50. (Ex. 14.) These injuries were not listed on Gibbons’ medical report, and Gibbons has not submitted evidence from a treating physician or other medical professional diagnosing these injuries. The Court thus finds insufficient evidence to award damages.1
Gibbons also underwent monitoring and regulation of preexisting thyroid and diabetes medications from a Dr. Ramey. According to Gibbons’ testimony, this treatment occurred due to interaction of the thyroid and diabetes medication with the antidepressant medications. The cost for this treatment totaled $2,463. (Ex. 14.) The Court also has insurance claim forms from Dr. Ramey in evidence. (Trial II Ex. 11.) Gibbons had hypothyroid and diabetes prior to the rape. See infra. Gibbons did not submit medical evidence that antidepressants made changes in her thyroid and diabetes medication necessary or that this was the reason Dr. Ramey treated her. Having no evidence tying Gibbons’ treatment by Dr. Ramey to injuries she suffered as a result of the attack against her, the Court finds insufficient evidence to award damages for this treatment.
The Court therefore grants damages for treatment of physical injuries in the amount of $354.
B. Emotional Injuries
Gibbons claims that she suffers from Posttraumatic Stress Disorder (“PTSD”) and major depression as a result of the assault for which ASG is liable. She further claims that these emotional injuries have severally incapacitated her and rendered her almost completely unable to work. We review the relevant portions of Gibbons’ personal history, assess two bases for evaluating Gibbons’ condition (one expert witness, one treatise), address whether Gibbons suffers from PTSD and depression, and finally, we discuss whether Gibbons’ emotional problems were caused by the attack for which we have held ASG liable.
1. Facts
Gibbons attended law school at George Washington University in *42Washington D.C., graduating in 1976. She then began a job at the Environmental Protection Agency (“EPA”), and thereafter held other jobs with the federal government. Just prior to coming to American Samoa, Gibbons was a supervisory attorney and acting deputy director in the Legislative Counsel Office in Washington, D.C.
Gibbons came to American Samoa in 1989 for a two-year contract as an environmental attorney in the Attorney General’s office. After two years and three months, she was asked by the Attorney General to stay for ¿n additional year, and she accepted the extension. The attack against Gibbons occurred during this additional year, and Gibbons left American Samoa in August 1992, after a two-month extension to the one-year extension. She returned to her job in the States, and stayed at that job until she was granted disability retirement in January 1995. Since that time, she has held one job, as a receptionist, for six months in 1997. Gibbons indicated that prior to the rape, she never received complaints about her job performance, either at the Attorney General’s office here or in her previous jobs in the States.
After the incident, however, acting Attorney General Arthur Ripley criticized her for being too involved in her work. Gibbons acknowledges that she became forgetful, unable to prioritize, and unable to effectively handle her caseload. According to Dr. Postman’s assessment, Gibbons was irritable, did not get along well with people, and forgot the details of certain events. These problems led to Gibbons’ decision to return to work in Washington, D.C.
It appears that Gibbons .continued to have difficulties at work upon return to the States. She was forgetful, erratic, unreliable, often teary, and did not get along with her boss. Gibbons indicated that her new supervisor at the EPA was unsympathetic to her state of confusion and forgetfulness. As a result of her problems, Gibbons was granted disability retirement in January 1995. Gibbons later took a job as a medical receptionist, but was fired on or about August 13, 1997, after approximately six months, because of being sick too much.
2. Assessment of Expert Witness
Dr. Louise Y. Postman (“Dr. Postman”) is a psychiatrist who has treated Gibbons extensively. She graduated from Boston University School of Medicine in 1965, and has been practicing psychiatry exclusively since 1966. The Court qualified Dr. Postman as a medical expert with no objection from ASG.
Dr. Postman began treating Gibbons in June 1993, at which time someone named Dr. Lazar was also treating Gibbons. From June 1993 to *43June 1994, Dr. Postman treated Gibbons through Psych Systems of Bethesda, Maryland, in a partial hospitalization program involving daily outpatient therapy. She ran the group therapy for trauma victims in which Gibbons participated, and treated Gibbons in individual psychotherapy sessions. She also managed Gibbons’ medication throughout and after discharge from Psych Systems. Since 1995, Dr. Postman has been Gibbons’ only psychiatrist and medicator.
Dr. Postman has treated Gibbons with a number of different antidepressants, Dr. Postman testified that most medications were able to “get her to a higher therapeutic level” but had serious side effects, such as increased anxiety when she was on Prozac. As of Trial II, Gibbons was taking an antidepressant called Wellbutrin, which gave her fewer side effects than most of the other medications she has tried.
ASG questions the reliability of Dr. Postman’s testimony, arguing that she is biased because she will financially benefit from any recovery Gibbons receives. The concern may be real in such cases. Nonetheless, as Gibbons’ primary psychotherapist, Dr. Postman is uniquely qualified to discuss Gibbons’ condition, and we find her testimony credible. Further, in the absence of any psychiatric testimony contradicting Dr. Postman’s analysis, we have no foundation for disputing her diagnoses.
5. Judicial Notice of Learned Treatise
Dr. Postman relied on the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, commonly known as DSM-IV, in describing Gibbons’ psychiatric conditions generally. AM. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 424 et seq. (4th ed. 1994) (hereinafter “DSM-IV”). An expert witness may use statements in a medical or other learned treatise when the treatise is established as a reliable authority by the testimony of the witness, by other expert testimony, or by judicial notice. T.C.R.Ev. 803(18) (hearsay exception for learned treatises). The DSM-IV extensively describes the features of PTSD and major depressive disorder. It is a widely used resource in the mental health field, and its use in connection with Dr. Postman’s testimony was without objection by defense. We therefore take judicial notice of DSM-IV as a learned treatise. See United States v. Murdoch, 98 F.3d 472, 479 (9th Cir. 1996) (Wilson, J., concurring); United States v. Cantu, 12 F.3d 1506, 1509 (9th Cir. 1993).
4. Posttraumatic Stress Disorder
Gibbons claims that she suffers from PTSD as a result of the attack against her. PTSD is an anxiety disorder with three primary *44characteristic symptoms: (1) persistent re-experience of the traumatic event through unwanted memories or dreams; (2) psychic numbing and avoidance of stimuli associated with the trauma; and (3) syndrome persistent arousal, which may entail sleep difficulties, irritability or outbursts of anger, and difficulty concentrating. PTSD occurs “following an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity.” DSM-IV at 424. Sexual assault and physical attack are listed as traumatic events that can potentially lead to PTSD. Id. Social supports, earlier life experiences, personality variables, and preexisting mental disorders may influence the development of PTSD, which can also develop in individuals without any predisposing conditions. DSM-IV at 426-27. According to Dr. Postman, the severity assault and the way a victim experiences an assault may affect the severity of PTSD.
Dr. Postman has diagnosed Gibbons with PTSD. She stated that, as is common with sufferers of PTSD, Gibbons is unable to control her emotions and has suffered flashbacks of the rape. (Trial II Ex. 6, Doctor’s Notes, July 14, 1999). Dr. Elisaia, who is the Chief of Psychiatric Services at the LBJ Medical Center in American Samoa, saw Gibbons several times in 1992 in the months following the rape, and also diagnosed Gibbons as having the symptoms of PTSD.
5. Major Depressive Disorder
Gibbons also suffers from major depressive disorder (“depression”). Depression is defined in terms of depressive episodes, defined by DSM-IV as at least a two-week period in which the person is either in a depressed mood or suffering a loss of interest or pleasure. DSM-IV at 327, 339. A depressive episode is characterized by at least five of the following nine features nearly every day: depressed mood most of the day, diminished interest in pleasure in all or most activities most of the day, significant weight change, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue or loss of energy, feelings of worthlessness or excessive or inappropriate guilt, diminished ability to think or concentrate or a feeling of indecisiveness, and recurrent thoughts of death or suicidal ideation or action. Id. at 327. Depression can be one symptom of PTSD, and sufferers of PTSD are at an increased risk of several disorders, including major depressive disorder.
From the testimony of both Dr. Postman and Gibbons, Gibbons has suffered and presently suffers from many of the symptoms listed above. Soon after the rape, she had difficulty concentrating, could no longer become motivated when she woke up in the morning, and often felt confused. She had difficulty prioritizing and was unable to do her job *45satisfactorily. Dr. Postman’s testimony and notes indicate depression throughout Gibbons’ treatment.
Mental health professionals use a multiaxial system for diagnosing mental disorders. See DSM-IV at 25. Axis V is a “Global Assessment of Functioning”, which is scaled from 0 to 100. Id. at 30-31. DSM-IV describes scores between 21 and 30 as characterized by “inability to function in almost all areas.” Id. at 32. Dr. Postman scored Gibbons at 25 in both in 1998 and 1999. According to Dr. Postman, Gibbons is unable to care for herself and cannot be counted on to get much done.
Her opinion is that Gibbons still suffers from major depression, several years after the rape. Most of the medications have had a positive effect, but Gibbons still has difficulty functioning. Dr. Postman indicated that Gibbons has made some progress, and there are moments when she is less depressed. However, she also stated that the times when Gibbons is in a less depressed state are “intermittent and can’t be counted on.”
6. Preexisting Conditions
ASG disclaims liability for Gibbons’ emotional problems, arguing that these are caused by certain preexisting conditions concerning (a) poor health and (b) personal history. These arguments are considered in turn.
(a) Poor Health
Gibbons suffers from both diabetes and hypothyroid, both of which conditions existed prior to the 1992 attack. Hypothyroid is a permanent condition in which the body produces an incorrect amount of thyroid, a hormone which affects emotional response. Evidence has not been presented regarding whether these conditions sufficiently influenced Gibbons’ emotional state prior to the attack in question. Indeed, Dr. Postman’s testimony indicates that Gibbons’ thyroid level was normalized by medication.
ASG argues, pointing to Dr. Postman’s therapy notes, that Gibbons was not diligent in taking her medication regularly, and that this amounts to a failure by Gibbons to minimize the emotional effects of the attack against her. However, Gibbons’ expert testimony indicates that lack of motivation and difficulty completing tasks may be symptomatic of depression, rather than causes thereof.
We will not reduce Gibbons’ recovery for emotional injuries based on pre-existing conditions. We note that ASG is not liable for thyroid and diabetes treatment that occurred subsequent to the rape, since these conditions were not caused by the rape.
*46(b) Personal History of Depression
ASG asserts that Gibbons was at least partially depressed prior to the attack against her, and as such, it should not be held liable for causing all of her consequent depression. Montalvo v. Lapez, 884 P.2d 345, 362 n.16 (Haw. 1994) (defendant not liable for pre-existing injury, but liable for aggravating it). If plaintiff was healthy prior to the incident and the injury appeared shortly afterward, her disability is presumed to have been caused by the incident if she can prove a causal nexus between the incident and her illness. Am. Motorists Ins. Co. v. Am. Rent-All, Inc., 566 So. 2d 121, 125-26 (La. 1990) (accident aggravated, but did not cause, emotional injury).
A threshold inquiry is “whether a plaintiff has ‘fully recovered’ from a pre-existing condition or injury or whether such condition was ‘dormant’ or ‘latent.’” Montalvo, 884 P.2d at 362. If Gibbons had not fully recovered from prior depression at the time of the rape, the court should attempt to apportion the causes of her injuries. Id; Prestenbach v. La. Power & Light, 638 So. 2d 234, 245 (La. 1994). However, if Gibbons had fully recovered, or if her depression was dormant or latent, then ASG is liable for all damages legally caused by the incident, since plaintiff would not have incurred any medical expenses or suffering at all if the incident had not happened. Montalvo, 884 P.2d at 361. This is a question of fact for which medical testimony is appropriate. Id. (citing Matsumoto v. Kaku, 484 P.2d 147 (1971) (Levinson, L, dissenting)).
Prior to the rape, Gibbons had two episodes of depression. The first occurred many years ago at time of her separation and divorce. The second occurred in 1985, and is explained by Dr. Postman as an incorrect dosage of thyroid medication.
According to both Gibbons and Dr. Postman, neither these issues nor her prior depressive episodes interfered with Gibbons’ functioning during the period preceding the, rape. The evidence supports this fact. While Gibbons may have been more susceptible to depression than the general population, she was not depressed at the time of the injury, had recovered from previous episodes of depression, was not chronically depressed, and did not need therapy or medication during the period immediately preceding the rape. See Am. Motorist Ins. Co, 566 So. 2d at 126.
ASG has failed to prove its hypothesis that other potential factors mentioned in therapy made Gibbons depressed prior to the rape, including feelings of rejection from her upbringing and failed relationships, or a grandfather with depression. Specifically, ASG has failed to show that these issues had any causal connection to Gibbons’ depression, and has failed to discredit Gibbons’ and Dr. Postman’s *47testimonies to the contrary.
7. Conditions Subsequent to the Rape
ASG argues that Gibbons’ PTSD and depression did not arise until several months after the attack, and that these emotional injuries are too remote from the initial injury for it to be found liable.
It is true that more serious of Gibbons’ psychological conditions did not appear until some time after the assault. Gibbons continued to work long hours at her job for several months and remained for two months past the expiration of her contract. She saw Dr. Elisaia, the Chief of Psychiatric Services at the LBJ Medical Center, approximately four times for treatment in July and August of 1992, but at some point believed she did not need psychological treatment and cancelled á therapy appointment with Dr. Elisaia. Gibbons did seek treatment in April and June of 1992, to attend one-week clinics at a rape crisis center in Honolulu, Hawaii. Gibbons’ main goal in visiting the rape crisis center was to gather information in order to convict the rapist, but she visited counselors two to three times during each visit. Dr. Postman has testified that rape is a common antecedent to PTSD. Although PTSD usually begins within the first three months after the trauma, there may be a delay of months or years before symptoms appear. DSM-IV at 426. There were approximately six months, from February 1992, to August 1992, between the attack against Gibbons and her return to the States. During that time, Gibbons had already begun to display signs of emotional problems, such as significant difficulty at work and difficulty concentrating. Dr. Elisara indicated that she had symptoms consistent with PTSD, and Dr. Postman stated that the sexual assault was what caused Gibbons’ PTSD. We find that the remoteness of Gibbons’ symptoms from the time of the assault does not, therefore, indicate a breach in the causal logic.
ASG further argues that Gibbons’ return to the States, rather than the rape, caused her emotional injuries. ASG argues that Gibbons was ultimately unable to work because of adjustment difficulties with her job at the EPA, including the treatment she received at work, rather than depression.
The established rule is that a plaintiff may recover for all damages, including those caused by a subsequent aggravation of an injury, if the later aggravation is a likely result of the original injury. Henderson v. United States, 328 F.2d 502, 504 (5th Cir. 1965) (applying Federal Tort Claims Act).
We have accepted expert testimony that Gibbons suffered from PTSD and depression when she returned to work at the EPA. We now accept *48that her consequent difficulties with employment, including her eventual disability retirement, directly resulted from these emotional problems. The subsequent problems with employment are a likely result of the emotional damage done by the original injury, and Gibbons is entitled to recover for these harms.
8. Liability
We find sufficient grounds, based on expert testimony, learned treatises, and all other evidence presented, for concluding that the attack against Gibbons in February 1992 caused her PTSD and depression. Gibbons may have been more susceptible to these injuries due to her history of depression as well as her need for medication due to particular physical ailments. However, the common law rule is that a tortfeasor takes a victim as he finds that victim, and is liable for the expenses incurred by that particular person, not for what may have been incurred by another. Vaiti v. Tuiolemotu, 19 A.S.R.2d 71, 73 (Trial Div. 1991). The evidence indicates that the unfortunate attack upon Gibbons caused her emotional injuries. Even if she were more susceptible than the average person to become depressed because' of that tortious injury, the tortfeasor ASG is still liable for the resultant damages.
9. Calculation of Special Damages Re Emotional Injuries
(a) Therapy and Medication
Gibbons seeks to recover the cost of the treatment she has received for her emotional injuries. Tort plaintiffs may recover medical and related treatment reasonably necessary to minimize an injury or the pain or disability that results from it. Dan B. Dobbs, Law of Remedies § 8.1(3), at 650 (1993). We find Gibbons’ therapy to have been reasonably necessary to treat the PTSD and depression resultant of the assault in question. We further find that the antidepressants used by Gibbons, some ineffective, were reasonable attempts at treatment. Gibbons may thus recover for the reasonable cost of her therapy, including the cost of her antidepressants. See Lasha v. Olin Corp., 625 So. 2d 1002, 1006 (La. 1993) (including costs of exacerbation of depression in damages).
Evidence was presented pertaining to the cost of therapy for the period between February 16, 1992, and 1999. Plaintiff has summarized the charges for psychotherapy but not for medications, as being $83,560.00. (Ex. 14.) We award to Gibbons this amount.
*49(b) Lost Wages
Lost wages, both past and future, are allowed in cases of emotional injury that renders a plaintiff unable to work. In Goddhardt v. Nat’l R.R. Passenger Corp., 191 F.3d 1148, 1159 (9th Cir. 1994), for example, the court awarded damages when the plaintiff was unable to work in the future due to PTSD that was caused by sexual harassment. Gibbons is therefore entitled to both past and future earnings lost as a result of the attack against her and her ensuing emotional injuries.
Accountant and member of the American Samoa Bar Association, Daniel R. King, testified as to his computations of lost wages, lost leave, lost future wages, and lost retirement pension. (Ex. 8.) We accept his computations for lost past and future wages as well as retirement pension, as totaling $809,449.70.
A party’s recovery for lost earnings is reduced by the amount actually earned by the plaintiff. Coffin v. Bd. of Supervisors, 620 So. 2d 1354, 1366-67 (La. 1993); Hood v. Mercier, 523 A.2d 572, 574 (Me. 1987); Ray v. Dep’t of Soc. Servs., 401 N.W.2d 307, 312 (Mich. 1986). Gibbons worked for approximately six months as a receptionist in 1995, approximately two years after her disability retirement. Gibbons’ recovery for lost wages, $809,449.70, should therefore be decreased by the amount she earned in her job as a receptionist.
(c) Vacation and Sick Leave
There is some uncertainty as to the terms governing the extent to which Gibbons may recover for vacation and sick leave. No evidence has been introduced as to the terms of her employment agreements with the United States or ASG regarding this issue. Such terms are necessary to inform the basis upon which this Court may award recovery. See, e.g., Sebren v. Millers Mut. Fire Ins. Co., 182 So. 2d 99, 101 (La. App. 1966); Siemes v. Englehart, 346 S.W,2d 560, 564 (Mo. App. 1961); Beck v. Edison Bros. Stores, Inc., 657 S.W.2d 326, 331-32 (Mo. App. 1961).
Plaintiff has provided the calculations and testimony of Daniel R. King regarding compensation for vacation and sick leave throughout the years 1992 through 1995. (Ex. 8.) His formulation includes two components of “lost leave.” First is the value of total sick and vacation leave benefits that Gibbons lost because she was not on pay status ($10,506.18). Second is the total sick and vacation leave she used in excess of a normal amount due ($27,135.24). Such remuneration is counter-intuitive to the Court, because it double-pays Gibbons for annual leave lost in addition to leave taken, and furthermore aggregates sick and annual leave in a way not contemplated by the laws and regulations of American Samoa, and *50perhaps neither by Gibbons’ employment contract or the relevant federal employment regulations. The Court cannot, therefore, accept Mr. King’s calculations, and instead will reformulate the economic damage portion for vacation and sick leave according to the applicable laws of American Samoa regarding its contract workers. These results are presented in the following table:
ANNUAL LEAVE
1992 1993 1994 Total
Normal Earned C\ to A to O CO OO O <N to O oo
Normal Used Ui o A H-Cv OO 00 vo i — i H-* Os oo
Normal Unused Leave i — 1 to O A O o A O
Actually Earned VO VO oo o M on oo to o oo
Actually Used <N V~> \n o A to O) to Ov
Actual Unused Leave vn q\ I 00 o to CO oo to
Rate of Pay $38.48 $40.26 $42.14
Compensation for Difference = 120 hrs x $42.14 = $5,056.80
SICK LEAVE
1222 1223 1224 Total
Normally Earned »-« CO o 4^ ^ O o -A*
Normally Used <N 00 O O OO oo O
Normal Unused Leave to 4^ ^ M to 4^
40 228 Actually Earned -St CO O 4^
0 504 Actually Used 'O OV co
40 -276 Actual Unused Leave VO Cv
i. Annual Leave
Remuneration of annual leave is governed by A.S.C.A. § 7.1203, which states: “payment of money in lieu of leave shall not be allowed except on termination of employment.” Title 4 of the Administrative Code further proscribes the terms under which Gibbons would have collected annual leave had she stayed on as a contract worker on pay status. Specifically, A.S.A.C. §4.1005(a)(3) limits the amount of the lump sum for which a contract specialist may be paid to a “maximum of 60 days of unused, accumulated annual leave, computed at the salary then in effect.”
Under normal conditions, assuming Gibbons terminated her contract at *51the beginning of 1995, she would have been compensated for the accumulated annual leave not taken while on contract, for up to 60 days. Gibbons would have earned 208 annual hours per year. Plaintiffs expert states that Gibbons would normally have used 168 hours per year. As shown in the chart, she would thus have had 40 hours per year carried over to the next, totaling 120 hours by termination in 1995.
What actually happened, however, is that in 1993, Gibbons earned only 168 hours per year annual leave and used 426, thus taking an excess of 258 horns. But in 1992 and 1994, Gibbons earned more leave than she used, and accumulated leftover leave of 82 and 80 hours, respectively. Subtracting the excessive leave used in 1993 from the accumulated leave from 1992 and 1994, it turns out that Gibbons used an excess of 96 hours more annual leave than she had earned.
To compensate Gibbons for the injuries for which tortfeasors are liable is to restore her to the situation that she would normally have occupied had the tort not occurred.2 By her own estimates, if it were not for the attack, Gibbons would have ended her term in 1995 with 120 accumulated unused hours. She is thus due compensation for these hours, in addition to the excess 96 days she took due to the injury (120 + 96 = 216). Her total economic damages for annual leave would thus total $5,056:80, which is the 216 hours at the 1994 rate, i.e. the “salary then in effect.” A.S.A.C. §4.1005(a)(3). . .
ii. Sick Leave
Plaintiffs figures calculate remuneration for used sick leave on the presumption that plaintiff should be paid for ASG’s fault in causing the sickness necessitating leave. Such a presumption is legally substantiated where plaintiff loses a benefit she would have had without the injury. See, e.g., Sebren, 182 So.2d 99. However, a number of muddling issues make such clean logic inapplicable to this case.
First, the employment statute of American Samoa does not, under normal circumstances, allow plaintiff to collect for unused accumulated sick leave. A.S.C.A. §7.1202(d) governs sick pay, or compensation for the unused accrued sick leave of government employees. Title IV of the administrative code does not address remuneration for unused sick leave *52of contract specialists, probably because of the high minimum standard set by the A.S.C.A. A.S.C.A. §7.1202(d) states in relevant part:
Employees terminated for reasons other than retirement, [and] employees who are medically separated ... are entitled to compensation for unused accrued sick leave at the rate of 50 percent of sick leave in excess of 239 hours.
This provision raises the issue of whether or not Gibbons may collect sick pay against contrary statutory policy.
Under normal circumstances, Gibbons would have earned 104 hours of sick leave per year, and according Mr. King’s estimation, would have ■used 80 hours of this amount. She would thus normally have accumulated 24 unused hours a year, which over three years would total 72 hours. Therefore, under normal circumstances, Gibbons would only have accumulated 72 hours of sick leave. This would not have qualified her for compensation upon termination, since A.S.C.A. § 7.1202(d) requires a minimum of 239 unused, accumulated hours. The statute would not have allowed Gibbons sick leave pay under normal circumstances of termination, and does not found a basis for doing so under exceptional ones.
Second, it seems that Gibbons used more benefit than she would have had without the injury. Specifically, she took sick leave in excess of what she normally would have taken (276 excess hours actually used plus the 72 excess hours normally unused results in 348 hours more benefit than she normally would have had). Courts have held that defendants are entitled to a setoff if the tortious conduct also confers a benefit on the plaintiff. Turpin v. Sortini, 643 P.2d 954, 961 (Cal. 1982). It thus might be argued that Gibbons now owes ASG a setoff for the excess sick leave she took. However, we are not confident that Gibbons “benefited” from the excess leave, since the evidence does not sufficiently show that she was paid for it. Further, as we have pointed out above, we cannot grant Gibbons damages for a sick pay benefit that she would not have had under normal circumstances. Since it is unclear whether Gibbons received a benefit from the tort, we are equally restrained from awarding ASG a setoff for that benefit.
In the absence of evidence or argument concerning the relevant federal statutes, the pertinent terms of Gibbons’ employment contracts, and’ persuasive legal arguments to the contrary, we are governed by the strict standards of the government employment provisions of the American Samoa Code in transforming paid sick leave into its wage equivalent. Neither these provisions nor the relevant common law allows us to award plaintiff for sick leave.
*53V. Apportionment of Fault/Joint and Several Liability
ASG argues that the Court should apportion damages according to level of culpability rather than finding ASG and the inmate joint and severally liable for Gibbons’ entire damages. It contends that the Court should apportion only a small degree of fault to ASG because the inmate actually committed the assault while ASG committed only passive negligence.
Under the common law rule, the Court applied joint and several liability, and has sometimes continued to apply the doctrine since the adoption of comparative negligence. A.S.C.A. § 43.5101; see, e.g., Euta v. Etimani, 24 A.S.R.2d 139, 144 (Trial Div. 1993). The majority of jurisdictions continue to use joint and several liability in conjunction with comparative negligence. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts, ch. 11 § 67 (5th ed. 1984).
However, the Court has increasingly followed the minority view, which holds that apportionment among tortfeasors is appropriate when it is possible to ascertain the parties’ relative liability. See Masania'i v. The Country Club, 2 A.S.R.3d 142, 145 (Trial Div. 1998); Fiaui v. Faumuina, 27 A.S.R.2d 36, 40-42 (Trial Div. 1994); Saufo'i v. Am. Samoa Gov’t, 14 A.S.R.2d 15, 22 (Trial Div. 1991). For example, in Fiaui, the Court found that while joint and several liability is the general rule, apportionment is appropriate when “the plaintiff has suffered factually separable or divisible harm that can be allocated among tortfeasors with reasonable certainty.” Fiaui, 27 A.S.R.2d at 40 n.1, 41. Such situations occur in cases of successive causation, when there is no concert of action between the parties and “the acts of two defendants occur at distinct different times and together produce harm.” Id.
In Masania'i, the Court found that apportionment is appropriate when it is possible to ascertain and allot comparative liability to the parties involved. Masania'i, 2 A.S.R.3d at 145. The plaintiff in Masania'i was seriously injured in a fight that took place while he was intoxicated at the Country Club. The Court found the individual defendants who battered plaintiff jointly and severally liable for 50% of plaintiffs injuries, and apportioned 25% of the damages to the Country Club for allowing the plaintiff to enter the Country Club intoxicated, in violation of statute. Masania'i, 2 A.S.R.3d at 129. The Court also found plaintiff comparatively negligent, which decreased his recovery by 25%. Id. The Court, acknowledging that it was diverging from the majority viewpoint, found joint and several liability for parties who acted in tandem, but found that apportionment was appropriate for a separate party when the actions of the different parties “did not act in concert as part of one inextricable, continuous act.”Masania'i, 2 A.S.R.3d at 144. *54Under the recent case law, including Fiaui and Masania'i, it is appropriate for the court to apportion the damages for Gibbons’ injuries between ASG and the inmate. Like the Country Club’s negligence in Masania 'i in failing to prevent an intoxicated person from entering the premises, ASG’s negligence involves its failure to take the necessary precautions to prevent an inmate from escaping and attacking a member of the public. The resulting willful conduct by the prisoner was at a separate time and of a different type than ASG’s actions, and did not occur as part of a single, joint act in concert with ASG.
Because of the more serious ramifications of ASG’s negligence in this case which distinguish it from Masania'i, we find that one-third of Gibbons’ damages occurred as a result of ASG’s negligence, and two-thirds occurred as a result of the intentional acts of the prisoner. We apportion damages to ASG accordingly.
VI. Reduction of Damages
A. Failure to Mitigate
ASG states that the court should apportion some of the culpability for plaintiffs’ damages to plaintiff. In support of this argument, ASG states that Gibbons did not always take her medication and that she had difficulty in therapy. The Court assumes that ASG intends this contention as an argument that Gibbons failed to mitigate her damages rather than an apportionment argument, since it would be nonsensical that plaintiff caused her own injuries. These issues were discussed supra with regard to causation, and were in fact primarily argued by ASG as issues of causation. It is therefore unnecessary to rehash them here. We simply note that the evidence presented indicates that Gibbons’ difficulties in therapy, as well as her occasional failure to take her medication, were symptoms, rather than causes, of her depression. We find that Gibbons did not fail to mitigate her damages.
B. Collateral Source Fule
ASG contends that Gibbons’ damages should be decreased in the amount of health benefits she has received. It argues that the collateral source rule should not apply to cases against the government and that Gibbons should not be able to gain a windfall by receiving double recovery.
Under the collateral source rule, an injured party’s compensation from a source independent of the tortfeasor is not deducted from damages otherwise collectable from the tortfeasor. Interocean Ships, Inc. v. Samoan Gases, 24 A.S.R.2d 108, 109-10 (Trial Div. 1993). The *55collateral source rule applies in “virtually all tort cases”, including cases against the government. Id.; see also Manko v. United States, 830 F.2d 831, 836-37 (8th Cir. 1987) (no reduction for Medicare and Social Security benefits to which plaintiff had contributed); Helfend v. S. Cal. Rapid Transit Dist., 465 P.2d 61, 69 (Cal. 1970). The collateral source rule prevents a tortfeasor from benefiting from the fact that a plaintiff has received separate benefits as a result of the defendant’s tort.
The only case cited by ASG in support of its position discusses the right of an insurer to sue after it has paid an insured, but does not state that the insured cannot also collect from the tortfeasor. See Dillingham Tug v. Collier Carbon & Chem. Corp., 707 F.2d 1086, 1090-91 (9th Cir. 1983). Instead, the case supports the proposition that the collateral source rule applies when the insurance is independent of the tortfeasor. Id. Gibbons contributed to her health insurance, and this benefit is from independent sources. We see no reason to stray from the collateral source rule, and allow no reduction for money Gibbons received from these independent sources.
C. Tricorne Taxes
According to ASG, Gibbons’ recovery for lost wages should be reduced by the amount of past and future income taxes she would have paid had she been able to work. ASG argues that the failure to deduct income taxes would constitute punitive damages, which is not allowed recovery under the Government Tort Claims. A.S.C.A. § 43.1203(a). Gibbons claims that income taxes should not be deducted because the determination of future income tax is too speculative, and because such a reduction would shift the benefit of non-taxability of tort awards from the injured party to the tortfeasor.
There is a split of authority as to whether to deduct both past and future income taxes from awards. The view that it is improper to deduct at least future income taxes from damage awards probably used to be the majority rule. See Girard Trust Corn Exch. Bank v. Philadelphia Transp. Co., 190 A.2d 293, 298 (Pa. 1963) (past and future income); Beaulieu v. Elliot, 434 P.2d 665, 671 (Ark. 1967) (future income only;' allowed reduction for past income). These courts refused to deduct only future income taxes on the grounds that future taxes are too uncertain to predict, and that consideration of tax issues would take over the bulk of a lawsuit since so many factors need be considered. Beaulieu, 434 P.2d at 671-72; Frankel v. United States, 321 F. Supp. 1331, 1339 (E.D. Pa. 1970). Perhaps due to these concerns, many courts have found that deduction of income taxes is improper except when dealing with persons with high incomes, since income tax deductions for these persons could significantly affect their recovery. See Kalavity v. United States, 584 *56F.2d 809, 812 (6th Cir. 1978) (citing cases utilizing this rule).
In recent years, more courts have deducted both past and future income taxes from awards. See generally John E. Theuman, Annotation, Propriety of Taking Income Tax into Consideration in Fixing Damages in Personal Injury or Death Action, 16 A.L.R.4th 589 (1982). Many courts have now considered this issue in the specific context of the Federal Tort Claims Act, the federal law on which the Government Tort Liability Act, A.S.C.A. § 43.1201 et seq., is modeled. See generally Ethel R. Alston, Annotation, Propriety of Considering Future Income Taxes in Awarding Damages under Federal Tort Claims Act, 47 A.L.R.Fed. 735 (1980).
Courts have increasingly found deductions for income taxes to be proper, primarily on the ground that plaintiffs will receive a- windfall if they receive the taxes that would have otherwise been deducted from their income. These courts have found that plaintiffs would be’ overcompensated if they receive amounts that the government would have received had they continued to work. Scott v. United States, 884 F.2d 1280, 1285 (9th Cir. 1992); Mosely v. United States, 538 F.2d 555, 558 (4th Cir. 1976). Utilizing this reasoning, the Ninth Circuit has employed three steps in determining an award for economic loss under the Federal Tort Claims Act: “(1) compute the value of plaintiffs loss under state law; (2) deduct federal and state taxes from the portion for. lost earnings; and (3) discount the total award to present value.” Shaw v. United States, 741 F.2d 1202, 1205 (9th Cir. 1984). We agree with this reasoning, rule, and method.
We therefore find that deduction of past federal and state income taxes from the total recovery is proper. Calculation of these taxes is not speculative, and should be determinable without too much difficulty. Deduction of future federal and state income taxes is also proper. Gibbons’ award should only include wages she would have received had she. continued to work. Despite the imprecision inherent in determining future income taxes, the resulting recovery is likely to more closely resemble Gibbons’ actual take-home wages than an award that fails to account for her taxes.
VII. Conclusion
The damages for Gibbons’ injuries in this case is summarized as follows:
1. In general damages:
(a) $100,000 for pain and suffering.
2. In special damages:
(a) $354 for medical expenses incurred in Honolulu,
*57(b) $83,560 for treatment of emotional injuries through September 2, 1999,
(c) $809,449.70 in lost past and future wages and retirement pension, subtracted by further-evidenced amount earned as a receptionist in 1995 and adjusted to account for past and future income taxes, and
(d) $5056.80 for lost leave.
Gibbons’ ascertainable injuries thus total $998,420.50, which figure is to be decreased by the amount earned as a receptionist in 1995 and past and future income taxes. ASG will be liable for 33% of the resultant amount.
VHL Order
The Court orders a supplemental briefing from the parties to determine a final award for Gibbons’ economic losses, addressing wages earned as a receptionist in 1995, a calculation of past and future income taxes, and lost leave. Gibbons shall submit a brief, including a new calculation of damages consistent with the findings of this court, not later than 20 days following the entry of this opinion. ASG shall file its reply brief, if it has one, not later than 10 days after plaintiffs brief is filed. Gibbons shall then have 5 days to respond to ASG’s reply.
It is so ordered.
We noted buried in discovery materials in file #3, several Health Benefits Claim Forms for treatment by Chang. In one, Gibbons lists the date of accident as the date of the rape (2/16/92); in a later one, she lists the diagnosis as a slip and fall at home on 4/19/95. Some treatment was before the slip and fall and some was after.
. See. Restatement (Second) of Torts § 901 cmt. A (1965). This states, “[wjhile the law of contracts gives to a party to a contract as damages for its breach an amount equal to the benefit he would have receivéd had the contract been performed. . ., the law of torts attempts primarily to put an injured person in a position as nearly as possible equivalent to his position prior to the tort.” See also 22 Am. Jur. 2d Damages § 128. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486690/ | ORDER ON MOTION TO RECONSIDER ORDER QUASHING SUBPOENA AND GRANTING PROTECTIVE ORDER
At this stage in the proceedings, defendants Southern Star International, Inc. dba Hong Kong Restaurant (“SSI”), and Kenny and Helen Young (“Youngs”) (together “Defendants”) in their motion for reconsideration, ask the Court to revisit an earlier decision rendered in this case. On January 29, 2001, we issued an interlocutory order granting Progressive Insurance Company (Pago Pago) Limited (“Progressive”), and the Bank of Hawaii’s motions to quash the June 5, 2000 subpoena duces tecum ad testificandum for the Bank of Hawaii, and granted Progressive’s motion *59for a protective order against the same subpoena. On February 7, 2001, Defendants moved for reconsideration of the order. On February 21, 2001, Progressive responded with a memorandum in opposition to Defendants’ motion. The next day, counsel argued the motion. For the following reasons, we deny reconsideration.
Motion to Reconsider or for a New Trial
American Samoa statutes and rules of court provide no authority for bringing a motion to reconsider a non-final interlocutory order in a pending case. While a motion for reconsideration or a new trial is prescribed as a mandatory pre-requisite to appeal a judgment under A.S.C.A. § 43.0802, this provision applies to final decisions, not to non-final interlocutory orders.1 Under A.S.C.A. § 43.0802(a), “[bjefore filing a notice of appeal, a motion for a new trial shall be filed within 10 days after the announcement of the judgment.” The appeal must be filed “within 10 days after the denial of a motion for a new trial.” A.S.C.A. § 43.0802(b). The plain language of A.S.C.A. § 43.0802 expressly mandates that motions for reconsideration or new trial be raised as a condition to appeal, almost immediately preceding that appeal.
In Kim v. American Samoa Gov’t, 17 A.S.R.2d 193, 195 (App. Div. 1990), the Appellate Division decided that an interlocutory order must be final or fall within the collateral order exception to be appealable:
To fall within the collateral order exception, an order must (1) conclusively resolve the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from the final judgment in the main case.
Id. (citations omitted). Because motions for reconsideration or new trial are brought as part and parcel of an appeal, the requirement that a pretrial order be final or fall within the collateral order exception to the finality rule before it may be appealed likewise applies to interim orders before they may be reconsidered. See Kim, 17 A.S.R.2d at 195 (App. Div. 1990).
The purpose of motions for reconsideration is to conserve judicial resources by allowing the trial court the opportunity to assess and correct its own errors prior to appellate review. However, requiring the court to reconsider all interlocutory orders would run counter to this very *60principle. In the interest of judicial economy we adopted the rule of finality, and the collateral order exception to the rule as outlined in Kim, and further apply that standard to motions for reconsideration.
Generally, pre-trial orders governing discovery are not final decisions, nor do they fall within the collateral order exception to the rule. A party affected by a court’s interim discovery ruling is not foreclosed from challenging the decision on appeal from the final decision. See Hancock v. State, 800 S.W.2d 683, 684 (Tex. App. 1990) (denying appellate review of discovery order); Clark v. Monnens, 436 N.W.2d 830, 831-32 (Minn. Ct. App. 1989); Kennedy v. Chalfin, 310 N.E.2d 233, 235 (Ohio 1974).
Similarly, our January 29, 2001 pre-trial discovery ruling, granting the motions to quash and for a protective order, is reviewable upon appeal. Therefore, since Defendants are not precluded from challenging the discovery order upon appeal, we deny reconsideration.
Sanctions
On Juñe 5, 2000, Defendants served a subpoena for documents and a deposition on the Bank of Hawaii. Subsequently, Progressive and the Bank of Hawaii each moved to quash the subpoena and Progressive requested a protective order against the same. Defendants failed to file any written opposition before the hearing on the motion. Counsel for Defendants assert that, “the hearing scheduled to hear the motions inadvertently and through no fault never occurred and the subject was visited the first time during the pre-trial hearing on January 11, 2001.” (Def.’s Mot. for Reconsideration 4.) Contrary to counsel’s averment, counsel argued the motion on June 20, 2000, and the Court took the motion under advisement. The matter was raised during the January 11, 2001 pre-trial hearing, but only in the context of tying up loose ends in preparation for trial.2
We have previously warned Defendants’ counsel, Mr. Miller, to consider seriously his ethical duty to be forthcoming with the Court. (Order on Motion to Quash Subpoena and for Protective Order at 4-5 (January 29, 2001).) He has failed to heed this warning. When counsel affixed his signature to his motion for reconsideration, he certified that “to the best of. . . [his] knowledge, information, and belief, formed after *61an inquiry reasonable under the circumstances ... the allegations and other factual contentions have evidentiary support.” T.C.R.C.P. 11(b)(3). Contrary to counsel’s certification of truth, counsel falsely states that the Court did not hear the motions to quash the subpoena and issue a protective order. We judicially note that in another matter similar to the case at bar, in which Mr. Miller was the counsel of record, the Court ordered payment of reasonable expenses and attorney’s fees for the bringing of the motion in the amount of $300.00. See YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 44, 48 (Trial Div. 2001) (issuing protective order and commanding $300.00 payment for the bringing of the motion). Likewise, for counsel’s transgression in this matter, we sanction him and order that he pay Progressive’s costs for answering the motion in the amount of $300.00.
Order
1. Defendants’ motion for reconsideration is denied.
2. Counsel Paul Miller shall pay Progressive’s reasonable expenses, including attorney’s fees, of answering- the motion for reconsideration in the amount of $300.00.
It is so ordered.
Authorized by A.S.C.A. § 43.0802, T.C.R.C.P. 59 permits parties to move for a new trial or for alteration or amendment of judgment within a similar timeframe.
Counsel in response to the Court’s inquiry on pending motions, explained that Progressive and the Bank of Hawaii’s motions to quash the June 5, 2000 subpoena and issue a protective order were under advisement and awaited the Court’s written decision. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486691/ | OPINION AND ORDER
In 1995, plaintiff American Samoa Government (“ASG”) initiated this action pursuant to A.S.C.A. §§ 43.1001-.1036 to condemn interests in land of defendant Neil Annandale (“Annandale”) in Tafima for installations connected with the public sewage collection system in this area. By this action, ASG sought to acquire a fee simple interest in approximately 0.045 acre along the southern boundary of the land (“Parcel A”) and a right-of-way in approximately 0.10 acre across the land (“Parcel B”). .
ASG declared the value of the interests to be $4,000.00 for Parcel A and $50.00 for Parcel B, and deposited the total sum of $4,050.00 in the Court registry, in accordance with A.S.C.A. §§ 43.1001 and 43.1003. By this making this deposit, ASG immediately acquired title to the interests desired, pursuant to A.S.C.A. § 43.1005. ASG also served Annandale with process and, under A.S.C.A. § 43.1002, gained the right to possess *65and use those interests.
When Annandale answered the complaint, he rejected the amount of the compensation deposited. He also counterclaimed against ASG and cross-claimed against defendants American Samoa Power Authority (“ASPA”) and Fletcher Construction (“Fletcher”) for damages based on trespass on Annandale’s land, allegedly beginning on or about January 23, 1995, and destroying plants, fences and walls.
In view of Annandale’s objections to ASG’s estimated values of the condemned interests in the land, determination of the compensation amount was referred to arbitration, pursuant to A.S.C.A. § 43.1010. On August 19, 1996, the arbitrators awarded $5,800.00 for Parcel A and $50.00 for Parcel B. Annandale accepted the award for Parcel A, and on December 15, 1997, the Court’s partial judgment and order was entered with respect to this parcel, confirming ASG’s title to Parcel A and requiring ASG to pay $5,800.00 to Annandale for this parcel.
Annandale appealed the award for Parcel B. On May 19, 1997, the Appellate Division held that the arbitrators failed to support the award for Parcel B with findings and conclusions, and remanded this award to the same arbitrators for further proceedings and a determination, based on written findings and conclusions, to be submitted to this court. The Attorney General has informed the Court that the arbitration award for the Parcel B was made in December 2000, but the arbitrators have yet to publish their decisions.
Trial on the trespass claims was held on July 10, 2000, and this opinion and order is limited to those claims. The two issues before the Court are (1) whether the actions by ASPA and Fletcher constitute trespass, and if so, (2) whether and what damages ASPA and Fletcher owe to Annandale.
Discussion
I. Trespass
This Court declared its standard for trespass in Letuli v. Le'i:
The tort of trespass to land is the unlawful interference with its possession. W. Prosser and W. Keeton, The Law of Torts § 13, at 70 (5th ed. 1984). It may be committed as the result of an act which is intentional, reckless, or negligent, or as the result of ultrahazardous activity. Gallin v. Poulou, 295 P.2d 958, 959-62 (Cal. App. 1956). The only intent required is the intent to enter another’s land, regardless of the actor’s motivation. Miller v. National broadcasting Co., 232 Cal. Rptr. 668, 676-*6677 (Cal. App. 1986). Trespass may occur by causing the entry of some other person or thing. Restatement (Second) of Torts § 158 (a), at 277 (1965).
Letuli v. Le'i, 22 A.S.R.2d 77, 82 (Land & Titles Div. 1992).
We read the rule applied in Letuli to mean that in adjudging whether trespass has occurred in civil cases, the claimant must establish (1) unlawful interference with the possession of property, (2) which may be the result of intentional, reckless, negligent or ultrahazardous activities, (3) where there existed an attempt to be at the place on the land where the trespass allegedly occurred, and (4) which may consist of the entry of some other person or thing. We find that ASG, ASPA, and Fletcher did trespass upon Annandale’s land based on these four criteria.
On or about Monday, January 23, 1995, employees of Fletcher, while on contract with ASPA, entered Annandale’s land and destroyed a cement wall, a chain-link fence, a mango tree, plants and shrubs, and dug a trench in the ground. At the time, ASPA had not obtained an easement from Annandale for use of his land, nor had Fletcher remedied this oversight by making arrangements to obtain one.
Annandale appropriately and immediately notified ASPA authorities through legal counsel, but none of these parties responded to his appropriate protest against Fletcher’s invasion of Annandale’s land. Fletcher thus engaged in repeated intentional acts consisting of unpermitted and uninvited infringement upon, injury to, and invasion of Annandale’s land.
ASG and ASPA are liable with Fletcher for trespass as employers of that independent contractor. As a general rule, the employer of an independent contractor is not liable for harm resulting from that contractor’s acts or omissions. Restatement(Second) of Torts § 409 (1965); Letuli, 22 A.S.R.2d at 83. However, if an employer employs an independent contractor to do work which he knows or has reason to know will likely involve a trespass upon the land of another, he is liable for harm resulting to others from such trespass. Restatement(Second) of Torts § 427B (1965). Here, ASPA hired Fletcher to institute an underground sewer line, which work inherently implies effacement and destruction of Annandale’s land. ASG and ASPA had reason to know that Fletcher’s work would involve trespass; their duty was to secure authorization for the intended work activity, so as to render the encroachment and conversion of Annandale’s property lawful. The contract between ASPA and Fletcher, with respect to the, necessity and distribution of responsibility for obtaining easements, confirms ASPA’s awareness of the potential for trespass and consequent liability involved in contracting for sewer line placement. Because they did not obtain *67valid authorization, ASG and ASPA are liable for harm resulting from their independent contractor’s physical trespass.
ASG and ASPA claim that they acted with Annandale’s consent to work on the property, and argue that they are thus not liable for co-opting it. However, they have failed to convince the court that Annandale consented to their doing work on the property. In fact, Annandale’s subsequent complaints to ASPA indicate that he not only lacked knowledge of the extent of the work, but also that he did not give ASPA consent to perform it. In any case, consent to enter and work on property does not justify total government taking.
This case involves forced preemption of private property by a government entity. At the time of the trespass, on January 23, 1995, ASPA rules specified that no buildings, structures, or residences were to be built over public sewers. In invading and clearing Annandale’s land without an easement or other proper authorization, making the land unfit for any other use, ASPA embarked on an unauthorized taking. Such unilateral takings are regulated by definitively proscribed legal standards for condemnation. A.S.C.A. §§ 43.1001-.1036 detail procedures such as filing a comprehensive complaint with the High Court and/or Attorney General, service of notice, and payment of compensation for private property taken. These procedures protect the property and personages of individual citizens against cooption by arbitrary authority. Violation of these procedures by a government entity is unlawful and unjust.
ASG and ASPA failed their duty to comply with the procedures set forth in A.S.C.A. §§ 43.1001-.1036. ASPA did not request that ASG condemn Annandale’s land until March 6, 1995, about six weeks after Fletcher entered the land. ASG did not file a complaint to condemn the land until March 14, 1995, almost two months after the entry. We thus find that Fletcher, ASPA and ASG engaged in intentional and unlawful interference with Annandale’s land between January 23, 1995 and March 14, 1995. Clearly, their joint activity constitutes trespass.
II. Basis for Relief
We now turn to the issue of damages. Annandale’s original complaint, filed on March 14, 1995, states a slightly different basis for relief than does his trial memorandum, submitted on July 10, 2000. Annandale’s counterclaim and cross-claim seek punitive and compensatory damages for damage to his land. His trial brief, however, seeks compensatory damages for indemnity or restitution for “loss of plantings,” emotional distress, and attorney’s fees and costs, and not merely for damages to property. A threshold issue is thus whether the court may recognize the additional bases for relief requested in the trial brief that were not *68mentioned in the counterclaim or cross-claim. In legal terms, the issue is whether the added terms of Annandale’s trial brief constitute a valid amendment of his claims.
A. Amending.Pleadings
T.C.R.C.P. 15(a) delineates the parameters for amending or supplementing pleadings. It states:
A party may amend his pleadings as a matter of course at any time before a responsive pleading is served. Otherwise a party may amend his pleading only by leave of court or by written consent-of the adverse party; and leave shall be freely given when justice so requires.
See also 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1486 (2d ed. 1990). This Court construes pleadings and their amendments liberally, in order to do “substantial justice,” even if the pleadings occasionally do not strictly comply with formal requirements. T.C.R.C.P. 8(f); see, e.g., Dev. Bank v. Ilalio, 5 A.S.R.2d 110, 115-16 (Trial Div. 1987). We give wide latitude to parties to amend material pleadings. See, e.g., Thomsen v. Bank of Hawaii, 28 A.S.R.2d 86, 87 (Trial Div. 1995). There are, however, certain limitations to our vast discretion to freely give leave to amend pleadings. In McKenzie v. Le'iato, 27 A.S.R.2d 53, 55 (Trial Div. 1994), we applied the U.S. Supreme Court ruling in Foman v. Davis, 371 U.S. 178, 183 (1962), which requires that a trial court give justifying reasons for denying an opportunity to amend a complaint. Foman suggested several viable factors for a trial court’s denial of a motion for leave to amend:
In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.,-the leave sought should, as the rules require, be ‘freely given.’
Foman, 371 U.S. at 183. Annandale has not officially applied for leave to amend or to supplement his complaint. Instead, he has added extraneous language to his trial memorandum, and left it to the discretion of this court to determine whether “justice so requires” our recognizing the implicit amendment.
The record shows that Annandale had more than ample time to amend *69his counterclaim and cross-claim. The condemnation complaint was filed on March 14, 1995, and a partial judgment was entered on December 10, 1997, as to Parcel A. More than two years then passed, during which no pleading or action on the case was taken by either party. On December 22, 1999, an order by this court was entered declaring that the case was not diligently prosecuted, and that the case would be dismissed with prejudice within 30 days unless good cause was shown otherwise. Exactly 30 days later, the motion for hearing to set trial date was filed, and the trial was held on July 10, 2000. Thus, Annandale had a wide berth of time — more than five years — during which he might have moved to amend or supplement his counterclaim and cross-claim, but did not. Such undue delay precludes us from giving Annandale leave to amend his pleadings.
Moreover, allowing such a last-minute amendment would be prejudicial to the opposing parties. One novel basis for relief slipped into a trial memorandum in the form of seemingly innocuous, extraneous language. Because of the prejudice that allowing such unstated ‘amendments’ would cause, we follow our ruling in McKenzie and refuse to extend our obligation to liberally construe pleadings to avoid injustice, towards refashioning a party’s theory of relief. McKenzie, 27 A.S.R.2d at 67.
A minimum requirement for a party’s amendment of pleadings is that it submit a motion for leave to amend under T.C.R.C.P. 15 (a). The procedural requirement of filing a motion for leave to amend enables the court to consider the justice of the filing. It places the opposing party on timely and proper notice of the new claim for relief, and more importantly, enables that party to contest the claim in open court. The extraneous language included in Annandale’s final memorandum constitutes a deviation from High Court Rules and does not comport with the court’s standards of due process. We will not accept Annandale’s implicit “amendment” of his counterclaim and cross-claim because of undue delay, and because doing so would be unduly burdensome and prejudicial to ASG, ASPA, and Fletcher.
Therefore, based on our court rales and the relevant case law, we will not recognize the new claim for compensatory relief stated in Annandale’s trial memorandum— specifically, the claim for emotional loss. Referring back to Annandale’s original pleadings, and considering that the condemnation and arbitration have taken since place to account for lost value of the land itself, we consider Annandale’s claims to be as follows: against ASPA and Fletcher for willful trespass and destruction of property.
*70B. Compensatory Damages
Annandale’s complaint seeks compensatory and punitive damages, excluding just compensation for the depreciated value of the land, which is accounted for in the condemnation proceedings. Compensatory damages are designed to compensate for actual injury or loss, and punitive damages are awarded as punishment or deterrence for particularly egregious conduct. Nappe v. Anschelewitz, 477 A.2d 1224, 1228 (N.J. 1984). The issue is what compensation may be justly afforded to Annandale for the destruction of the vegetation, fences and walls on his property caused by the trespass.
We have previously addressed the issue of compensation for victims of past trespass for damages to land in Letuli in which we set our standard for compensatory damages. Letuli, 22 A.S.R.2d at 85. Compensatory damages are to be measured by (1) diminution in value, i.e., difference between market value of land before and after the harm, or cost of restoration when appropriate, (2) loss of use of the land, and (3) discomfort and annoyance to the occupant of the land. Id.; see also Restatement (Second) of Torts § 929(1) (1965). If a severable thing attached to the land is damaged, recovery of the loss in market value to the attachment is an optional approach. Restatement (Second) of Torts § 929(2) (1965). In any case, proof of pecuniary loss is required. “In the absence of such proof, which can occur when substantial actual damages are not susceptible to precise proof, the damage entitlement is limited to nominal damages in a trivial amount.” Letuli, 22 A.S.R.2d at 85; see also Restatement (Second) of Torts § 907 (1965).
In the course of their trespass,' ASG, ASPA, and Fletcher destroyed plants, fences and walls on Annandale’s land. However, no evidence was presented regarding the market value of the damaged vegetation, fences, and walls. In the absence of such evidence, we must rale according to our holding in Letuli, where no evidence was presented as to the market value or other readily ascertainable pecuniary value, and where we could not, therefore, award compensatory damages.
As discussed in great detail in Dixon v. City of Phoenix, case authority points to a restoration cost exception to the market value measure of damages where landscaping and vegetation have intrinsic value to the landowner. 845 P.2d 1107, 1116 (Ariz. Ct. App. 1982). Such intrinsic value is assumed, and does not require evidentiary support, where the property damaged is a homesite or recreational lot. See Restatement (Second) of Torts § 929 cmt. b (1965); Thatcher v. Lane Construction Co., 254 N.E.2d 703, 706 (Ohio Ct. App. 1970); Rector, Etc. v. C.S. McCrossan, 235 N.W.2d 609, 610 (Minn. 1975); *71Denoyer v. Lamb, 490 N.E.2d 615, 618 (Ohio Ct. App.1984).
[I]n appropriate cases, a landowner whose vegetation has been destroyed by a trespass may receive damages based on restoration costs. This is so even when the amount may exceed the diminution in market value of the real property on which the vegetation grew.
Dixon, 845 P.2d at 1117. Dixon also emphasized that only reasonable costs of replacing destroyed vegetation may be recovered. Id.
We do not find sufficient indication, either by evidence or reason, of any intrinsic value of the lost landscaping and vegetation. The property in question was a rental property rather than a homesite or recreational lot for which intrinsic meaning has been found in order to apply the restoration cost standard for compensatory damages. See Thatcher, 254 N.E.2d at 708; Rector, 235 N.W.2d at 610; Denoyer, 490 N.E.2d at 618. The “intrinsic meaning” of the vegetation and attachments to Annandale’s land must be held to be, therefore, negligible.
There being no evidence as to (1) the intrinsic value of the property or else the pecuniary worth of its diminution in value due to trespass, (2) no issue as to the loss of the land itself (that being decided by arbitration), and (3) no “satisfactory proof of consequential illness or significant bodily or emotional injury” to merit compensation for emotional distress, our award of compensatory damages for trespass upon Armadale’s land is limited to the nominal amount of $ 1.00. See Letuli, 22 A.S.R.2d at 86,
C. Punitive Damages
Punitive or exemplary damages may be awarded whether or not compensatory damages are awarded, in order to punish a wrongdoer as well as to deter other from similar future misconduct which resulted in injury, loss or detriment to another. Letuli, 22 A.S.R.2d at 86; Nappe, 477 A.2d at 1232; Restatement (Second) of Torts § 908 and cmts. b & c (1965). The punitive award is based on whether the trespasser’s conduct was wantonly reckless or malicious. The offender must have engaged in “intentional wrongdoing in the sense of an ‘evil-minded act’ or an act accompanied by a wanton and willful disregard of the rights of another.” Nappe, 477 A.2d at 1230.
The actions of ASG, ASPA, and Fletcher in trespassing upon Annandale’s land do not appear to have occurred with any evil intent. However, their actions did occur with reckless disregard for Annandale’s rights as a private property owner, and in violation of the contract between ASPA and Fletcher and ASPA’s rules regarding obtaining *72easements or condemnation before commencing work. The trespass continued despite repeated written requests to cease. In Letuli, we awarded the plaintiff $1,500.00 in punitive damages where the defendant bulldozed natural growth trees on a 12-foot right of way in malicious retribution for the plaintiffs refusal to clear the property for the defendant’s ocean view. The factors we considered in that case were “the character of the defendant’s act, the nature of the plaintiffs harm, and defendant’s responsible station in life.” Letuli, 22 A.S.R.2d at 86.
In this case, the property in question involves more or less 0.145 acres, the destruction of erected fences and shrubs, and sloppiness in procuring the requisite consent, easement or condemnation action before commencing sewer line work on private property. ASG, ASPA, and Fletcher trespassed upon the property illegally for more than two months despite Armadale’s immediate and repeated notice and protest. For punishment of such wanton disregard óf the rights of private property owners, and for deterrence against ASG, ASPA, and Fletcher whose frequent infrastructure'work and abundant resources necessitate attention to detail and care, we award Armadale $3,000.00 in punitive damages.'
Furthermore, A.S.C.A. § 43.5051 requires that damages be trebled in trespass cases where the damage is to “timber, young tree growth, or products, of tree growth ... , or cultivated grounds”'without lawful authority or permission. We thus award to Annandale a total of $9,003.00 in compensatory and punitive damages.
D. Attorney’s Fees and Costs'
Attorney’s fees are not ordinarily recoverable by a prevailing party, but may be awarded when an opposing party has acted in bad faith, wantonly, oppressively or when a statute dictates. See Fiaui v. Faumuina, 27 A.S.R.2d 36, 42 (Trial Div. 1994); F.D. Rich Co. v. Indus. Lumber Co., 417 U.S. 116, 129 (1973). Annandale is deserving of attorney’s fees in this case, where public agencies and their agents acted oppressively and in wanton disregard of the valid property claims of an individual citizen. Annandale is also entitled to costs of suit. T.C.R.C.P. 54(d).
Order
1. There being no proof of compensatory damages, ASG, ASPA, and Fletcher are jointly and severally liable for $1.00 in nominal damages to Annandale for willful trespass to his land.
2. Due to their reckless indifference to Annandale’s right to private property protected by the laws óf American Samoa, as well as the contract between ASPA and Fletcher and ASPÁ’s mies, ASG, ASPA, *73and Fletcher are jointly and severally liable for $3,000.00 in punitive damages.
3. Pursuant to A.S.C.A. § 43.5051, the total amount of damages jointly and severally owed by ASG, ASPA, and Fletcher to Annandale are tripled to the total amount of $9,0003.00.
4. ASG, ASPA and Fletcher are also jointly and severally liable to pay to Annandale attorney’s fees in the amount of $1,500.00 plus his actual costs of suit.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486692/ | ORDER GRANTING MOTION TO DISMISS
Facts
Plaintiff American Samoa Government (“ASG”) brought this consumer protection action for Plaintiffs Brennan Isaako, acting on behalf of the Aoloau Catholic Choir (collectively “the choir”) pursuant to A.S.C.A. §§ 3.0302 and 27.0401 on July 14, 2000. Allegedly, the choir left their Technics Console Organ at Defendant NTV Electronics (“NTV”) store on August 11, 1999, to correct its tone, and the store promptly binned down in the evening of the same day. ASG and the choir ask for a judgment over $5,000 against Defendant Ning Tan (“Tan”), as NTV’s store manager, Defendants Helen and Kenny Young (“the Youngs”), as principals of NTV, and Defendant Progressive Insurance Company (“Progressive”).
NTV, Tan and the Youngs filed their answer and cross-claims on August 9, 2000. The cross-claims alleged that Progressive insured South Star International, Inc. (“SSI”), and the negligence of SSI’s employees caused the fire resulting in damage to NTV and Tan. The Youngs may also be principals of SSI, and counsel for NTV, Tan and the Youngs represents SSI in another pending action. See Progressive Ins. Co. v. S. Star Int’l, Inc., 4 A.S.R.3d 147 (Trial Div. 2000). SSI has not been joined as a *75party to this case.
Progressive filed its answer and cross-claim on August 24, 2000. The cross-claim seeks indemnity against NTV and Tan, if Progressive is held liable to ASG and the choir. NTV, Tan, and the Youngs filed a motion to dismiss this cross-claim on September 8, 2000. Next, Progressive filed a motion for protective order related to discovery proceedings initiated by counsel for NTV, Tan and the Youngs, as well as for T.C.R.C.P. 11 sanctions against him. NTV, Tan and the Youngs then filed a motion for Rule 11 sanctions against Progressive’s counsel. The motion to dismiss is the subject of this current order.
Discussion
Progressive claims that NTV and Tan are liable to the choir for the loss of the organ under the choir’s “contract of bailment,” where defendants NTV and Tan have a privity of contract with the choir as bailor and bailee. Progressive asks that NTV and Tan indemnify it and pay judgment if the court finds it liable to the choir for loss of the organ.
NTV, Tan and the Youngs submitted their motion to dismiss this cross-claim based on the ground that Progressive “[failed] to state a claim upon which relief can be granted.” T.C.R.C.P. 12(b)(6). Amotion to dismiss for failure to state a claim will be denied unless it appears beyond a doubt that no set of facts can be proven which would entitle the claimant to relief. Moeisogi v. Faleafine, 5 A.S.R.2d 131, 134 (Land and Titles Div. 1987); Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The pleadings are construed in the light most favorable to the claimant. Beaver v. Cravens, 17 A.S.R.2d 6, 8 (Trial Div. 1990); NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The burden of proving the absence of a claim rests on the movant. Moeisogi, 5 A.S.R.2d at 134; Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).
NTV, Tan and the Youngs assert that Progressive has failed to state a claim on which relief can be granted, because it “lacks standing to assert any contractual claim, and, having suffered no loss, is not entitled to assert a claim based on tort.” This argument very obliquely asserts the relevant law, but is essentially correct.1
*76T.C.R.C.P. 13(g) permits parties to assert cross-claims, defined by “any claim by one party against a co-party” arising out of the same transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein, or that relates to any property that is the subject matter of the original action. See also 6 Charles Alan Wright et al., Federal Practice and Procedure § 1431 (2d ed. 1990). T.C.R.C.P. 8(a) further requires claims to consist of “a short and plain statement of the claim showing that the pleader is entitled to relief.” Because of Rule 8(a), the federal courts have held that “Rule 13(g) is not a general provision for indemnity or contribution. It is a procedural device for facilitating affirmative claims for relief among co-parties to a lawsuit.” Conn. Gen. Life Ins. v. Universal Ins. Co., 838 F.2d 612, 623 (1st Cir. 1988).
It is not sufficient for the cross-claim to merely allege blamelessness and lack of liability against the opposing party’s claim. A claimant must present a claim for affirmative relief against its codefendant, not merely facts relieving it from liability for plaintiffs claim, in order to avoid subjecting the cross-claim to dismissal by the court. Conn. Gen. Life Ins, 838 F.2d at 623; Jones v. Ill. Dep’t of Rehab. Services, 689 F.2d 724, 733 (7th Cir. 1982); Wash. Bldg. Realty Corp. v. Peoples Drug Stores, Inc., 161 F.2d 879, 880 (D.C.Cir. 1947). A cross-claim thus fails to state a claim, and is subject to dismissal under Rule 12(b)(6), if it merely requests indemnity from a co-party but does not assert a plea for affirmative relief against the co-party.
Washington Building involved a personal injury action against a landlord and tenant, where the defendant tenant cross-claimed against the defendant landlord, alleging that plaintiffs injury occurred in a public passageway maintained by the landlord. 161 F.2d at 879. The Court dismissed this cross-claim, holding that these facts may relieve the claimant tenant from any liability for plaintiffs claim, but they do not. constitute a claim for affirmative relief against the co-defendant. Id. at 880. The Court stated that:
[Claimant] alleges facts that relieve it of any and all liability for plaintiffs injury and it makes [codefendant] solely responsible for the plaintiffs injury. It is not alleged that the parties are jointly liable, as a result of which a claim for contribution would arise, nor that [claimant] is only secondarily liable, as a result of which it would have a claim for indemnity, nor that there is a contract between [claimant] and [codefendant] which would entitle [claimant] to complete *77indemnity. In short, in its cross-claim [claimant] has alleged only facts that constitute as to it a complete defense to the original tort action, and nothing constituting a claim against [co-defendant].
Id. This statement clarifies what constitutes a claim for affirmative relief, rather than a simple conclusory statement of entitlement to indemnity.
The cross-claim in this case is similar to Washington Building in that Progressive argues for indemnity from co-defendants NTV and Tan based, not on its own obligations or duties with those co-parties, but rather on those co-parties’ duties to the choir. Cross-claims for indemnity are permitted. Gentry v. Wilmington Trust Co., 321 F. Supp. 1379, 1383-85 (D. Del. 1970). Indeed, cross-claims for indemnity must be timely made where they are available. Martell v. Boardwalk Enter., Inc., 748 F.2d 740, 749 (2d Cir. 1984). However, in this case, Progressive’s request for indemnity is not based on a claim for affirmative relief from NTV and Tan, but rather on the complete defense to the claims of ASG and the choir arising out of NTV and Tan’s bailment contract with the choir. The duty of NTV and Tan under the bailment contract extends only to the choir, and not to Progressive. Progressive cannot, therefore, stake a claim for affirmative relief upon the bailment contract. See Jones, 689 F.2d at 733.
Because Progressive has failed to state a claim for affirmative relief against a co-party in contravention of the T.C.R.C.P. 8(a) and 13(g) requirements for cross-claims, we will dismiss Progressive’s cross-claim against NTV and Tan.
Order
The motion to dismiss is granted.
It is so ordered.
The motion to dismiss by NTV, Tan and the Youngs’ motion involves extraneous and irrelevant citations regarding the relationship between a corporation and stockholders, which frankly baffles the court, in addition to citing Rule 12(b)(6) and making the general statement above. We choose to constare the pleading so as to “do substantial justice” according to our Trial Court Rules, rather than prejudice NTV, Tan and *76the Youngs by dismissing it due. to the maladroit arguments of their attorney. T.C.R.C.P. 8(f). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486694/ | ORDER DENYING DEFENDANT’S MOTION TO SUPPRESS
This case concerns an October 12, 2000, charge against Fogava'a Fonoti, a.k.a. Enoka (“Enoka”), a citizen of Samoa, by American Samoa Government (“ASG”), for unlawful possession of a controlled substance under A.S.C.A. §§ 13.1022 and 13.1006, to which Enoka pled not guilty. Enoka filed a motion seeking to suppress certain statements of his made August 3, 2000, as well as all evidence seized on that date.
On August 3, 2000, Enoka arrived in Pago Pago harbor on the ship MV Lady Naomi. During a routine border search, he was found by Customs Officer Pa'uulu Lagai (“Lagai”) to be carrying what was later verified as *834.5 grams of marijuana. When Enoka first approached the inspection table, at about 7:35 a.m., he claimed that he had nothing to declare and that everything with him was his own. Lagai inspected Enoka’s carry-on bag and umu, and then asked Enoka to hand over the black waist pouch he was wearing. One of the pockets was locked, and Lagai asked Enoka to open it. Enoka took a key out of his pants pocket and opened the compartment, revealing a yellow plastic bag appearing to contain marijuana. Lagai seized, the bag and its contents. He then turned Enoka and the items over to Captain Jeannette Thompson (“Thompson”). Thompson escorted Enoka to the Customs Office and notified Detective Lima Togia of the Department of Public Safety’s Vice and Narcotics unit (“Togia”). Togia arrived and performed an on-site field test on the substance that proved positive for tetrahydrocannabinols (“THC”), the active ingredient of marijuana. At 9:00 a.m., Togia escorted Enoka and the seized items to the Department of Public Safety (“DPS”), where the suspected marijuana was weighed at 4.5 grams.
At 9:40 a.m., Togia advised Enoka of his constitutional rights in the Samoan language. In a written statement made and signed thereafter, Enoka stated that he received the waist pouch by someone who lived with his brother, and was told to take it with him to American Samoa where someone would be waiting for it on the wharf wearing a light yellow or beige-colored hat. Enoka stated that he did not know and was not suspicious of what the waist pouch contained, though he was told not to open it.
Enoka claims that Togia threatened to hit him on the head with a chair if he did not make this statement. ASG denies that threats were made, but rather that Enoka waived his rights and voluntarily gave a statement. We note that Togia was cordial enough so as to drive Enoka to his on-island-aiga to deliver his umu. He then took Enoka out to lunch.
On August 7, Enoka visited Togia at the police station and attempted to exchange a bag of Samoan cocoa for his travel documents. He also stated that he would work for Togia in return for Togia’s helping him out on the case. Enoka returned a few minutes later with a person recognized by Togia. Both persons asked for Enoka’s travel papers but were told to leave. Enoka returned twenty minutes later and offered Togia forty dollars to help him out. Togia warned Enoka of the serious consequences of bribery, but gave back Enoka’s documents and allowed him to depart.
I. Motion to Suppress Statements
Enoka moves to suppress all statements made to officials on August 3, 2000. He argues that he was not given the opportunity to apply for *84appointed counsel despite being subject to custodial interrogation, that he was not advised of his Miranda rights, and that he did not make a valid waiver of those rights. He furthermore argues that he was not informed of his Vienna Convention right to communicate with a consular official prior to taking his statement. We consider these arguments in turn.
A. Miranda Rights
We find as a matter of fact that Enoka received the Miranda warnings at DPS at 9:40 a.m. in accordance with Miranda v. Arizona, 384 U.S. 436 (1966). We further find that Enoka validly waived these rights. Enoka claims that Togia threatened to hit him on the head with a chair if he did not make the statement, but this claim is substantially discredited by contradictions and inconsistencies in Enoka’s testimony, as well as his apparent lapses in memory regarding major events such as whether or not he returned to Western Samoa after his release from jail or whether or not he was rearrested one month later. We thus find that Enoka received and waived his Miranda rights. His statement was voluntary and therefore admissible.
We furthermore do not accept Enoka’s argument regarding his lack of opportunity to apply for appointed counsel. Included in the Miranda rights given to Enoka was the right to the presence of an attorney, and the fact that he would be appointed an attorney if he could not afford one. After hearing and waiving these rights, Enoka was with Togia in custody for almost an entire working day. Enoka had plenty of opportunity to apply for appointed counsel, both while he was under interrogation as well as under the later, informal circumstances of visiting his family and having lunch with Togia.
B. Right to Communicate with Consular Official
Enoka claims that he was not notified of his right to communicate with consular officials in violation of the Vienna Convention on Consular Relations (“Vienna Convention”), April 24, 1963, 21 U.S.T. 77. Article 36(1)(b) of the Vienna Convention states:
(1) With a view to facilitating the exercise of consular functions relating to nationals of the sending State: ...
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the *85person concerned without delay of his rights under this sub-paragraph^]
The Supremacy Clause of the U.S. Constitution may sometimes require that courts exclude evidence where this is explicitly required by a treaty or by executive agreement. U.S. Const. art. VI, C1. 2; see also 22 Charles Alan Wright et al., Federal Practice and Procedure § 1431 (2d ed. 1990). For example, the applicable extradition treaty determines the admissibility of evidence in an extradition proceeding. United States v. Rauscher, 119 U.S. 407, 421-24 (1886); O’Brien v. Rozman, 554 F.2d 780, 782-83 (6th Cir. 1977); see also United States v. Flores, 538 F.2d 939, 945 (2d Cir. 1976). Also, federal courts have recognized a judicially enforceable right to request consular notification in deportation proceedings based on INS regulations which embodied the Vienna Convention provisions. United States v. Rangel-Gonzales, 617, F.2d 529, 532 (9th Cir. 1980); United States v Calderon-Medina, 591 F.2d 529, 531-32 (9th Cir. 1979); 8 C.F.R. §242.2(e).
Because the Vienna Convention is a ratified treaty, its provisions must be regarded as “the supreme Law of the Land.” U.S. Const. art. VI, c1. 2; Breard v. Greene, 523 U.S. 371, 376 (1998) (per curiam). The Vienna Convention, however, makes no provision for the remedy of suppression of evidence where the constitutional notification requirement has not been met. Without such explicit provision, we are unwilling to supply such a remedy, especially where doing so would contravene the apparent intent expressed in the preamble to the Vienna Convention. The preamble states that:
[T]he purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States.1
Other remedies for violation of the consular notification requirement of the Vienna Convention may be possible, but exclusion of evidence is not one. This issue was explicitly treated by the Ninth Circuit in United States v. Lombera-Camorlina, 206 F.3d 882 (9th Cir. 2000) (en banc), and the Seventh Circuit in United States v. Lawal, 231 F.3d 1045 (7th Cir. 2000). Both cases involved foreign nationals invoking the Vienna Convention to suppress statements that were obtained without their having been notified of a right to contact their respective consuls. Lombera-Camorlina, 206 F.3d at 883-84; Lawal, *86231 F.3d at 1047. Both courts ruled that violation of the Vienna Convention consular notification requirement does not require suppression of subsequently-obtained evidence in a criminal proceeding against a foreign national. Lombera-Camorlina, 206 F.3d 884; Lawal, 231 F.3d at 1048. Further, the fact that a foreign national was not informed of the right to notification following arrest as required by the Vienna Convention does not warrant exclusion of post-arrest statements made by such national in subsequent prosecutions. Lombera-Camorlina, 206 F.3d at 884-87; Lawal, 231 F.3d at 1048. The circuits cite various reasons for these mlings, including the lack of explicit intent to grant the remedy of suppression of evidence in the treaty, the absence of such a policy with respect to criminal procedure by any statutory body of the United States, as well as practical problems and expense should the remedy be judicially enforced. Lombera-Camorlina, 206 F.3d 884-89; Lawal, 231 F.3d at 1048-49.
It is true that, upon his detention and arrest, the Samoan national Enoka was not informed of the Vienna Convention requirement of consular notification. It is also trae that he did not make any request to speak with a Samoan consul, which, incidentally, does not exist in American Samoa. Lagai and Togia’s apparent failure to warn Enoka of his right to notify consul may constitute a violation of the Vienna Convention requirement. However, such a failure is not accompanied by the remedy of exclusion of evidence. Adoption of the suppression remedy may be inevitable given the increasing interdependency of diverse markets prompting the need for the greater protection of human rights of traveling nationals. However, until amendments grant international treaties explicit control of particular areas of domestic law, and until such language is signed, ratified and affirmed by the executive, legislatures and the courts, we are not inclined to assume the authority to fashion new rights out of ideal but' ineffectual language, nor to override international law by imputing domestic practice. Until the federal courts of the United States interpret the U.S. Constitution to allow otherwise, we must conclude that the Vienna Convention does not create a remedy of suppression of evidence due to failure by government authorities to apprise a detained or arrested foreign national of a right to notify consul.
H. Motion to Suppress Evidence
Enoka further claims that the evidence obtained from him while subject to an ASG customs search in American Samoa was illegally seized as the fruit of a warrantless search where he had a reasonable expectation of privacy, where there was no probable cause or reasonable and articulable suspicion of criminal activity, nor exigent circumstances to excuse the warrant requirement, nor knowing and voluntary consent to the search. The issue before the court is thus whether the routine search of Enoka’s *87waist pouch, conducted by customs officer Lagai, was rendered illegal due to lack of a warrant, probable cause or other exigent circumstances.
Article I, § 5 of the Revised Constitution of American Samoa affords to all individuals certain protections against unreasonable searches and seizures by the government. The Fourth Amendment of the U.S Constitution also guarantees these protections. However, the United States Supreme Court has made it clear that a border search may be subject to a significantly less demanding standard than that required for searches within the interior. United States v. Montoya de Hernandez, 473 U.S. 531, 539-40 (1985). Specifically, the Supreme Court has ruled constitutional those federal regulations granting customs authorities plenary authority to conduct routine searches and seizures at the border without probable cause or a warrant. Id.; United States v. Ramsey, 431 U.S. 606, 616-17 (1977); 19 U.S.C.A. §§ 1467, 1481, 1582; 19 C.F.R. § 162.6, 162.7 (1984). Although entrants have a reasonable expectation of privacy in border crossings, their privacy interest is lessened. Ramsey, 431 U.S. at 616-17.
For similar reasons, this Court has also held upheld as constitutional A.S.C.A. § 27.1002(a), the statutory provision that authorizes border searches.2 Am. Samoa Gov’t v. Pua'a, 31 A.S.R.2d 73, 78 (Trial Div. Nov. 22, 1996); Am. Samoa Gov’t v. Vagavao, 3 A.S.R.3d 72, 75 (Trial Div. Feb. 4, 1999); see also Rev. Const. of American Samoa art. I, § 3.
Enoka arrived in American Samoa from Samoa, which, however conjoined in common heritage, language, and consanguinity, is lawfully regarded as an independent and foreign state. He was thus subject to the statutorily authorized and mandated border search by the customs official Lagai when the contraband was found on his person. Furthermore, Enoka’s waist pouch was worn in plain view on the outside of his clothing. The routine searcA of sucA an article of luggage, requiring no patdown or other such bodily incursion, does not invoke constitutional protections. Ramsey, 431 U.S. at 616-17. In short, Enoka had no privacy interest with respect to the waist pouch he was wearing, at the border, when he entered this territory. We thus conclude that the contraband seized, is admissible.
*88The defendant’s motion to suppress is denied.
It is so ordered.
The Supreme Court has left open the question of whether the Vienna Convention actually creates judicially enforceable rights. See Breard v. Greene, 523 U.S. 371 (1998).
A.S.C.A. §27.1002(a) specifically states that:
All persons entering or leaving American Samoa may be searched by a customs officer. . . [who] may require the owner or his agent or other person having charge or possession of any trunk, traveling bag, sack, valise or other container, or any close vehicle, to open it for inspection. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486695/ | ORDER ON MOTION FOR RECONSIDERATION OF ORDER DENYING MOTION TO COMPEL DISCOVERY, AND REQUIRING A DISCOVERY CONFERENCE
Plaintiff YHT, Inc. (“YHT”), submitted a Motion to Compel Discovery on October 17, 2000, which was denied by this Court on February 21, 2001. On February 26, 2001, YHT then moved the Court to reconsider our denial of its motion to compel discovery, which motion was heard on April 23, 2001. We summarily deny YHT’s motion, and order a discovery conference to contain the spiraling problems regarding discovery in this case.
In a recent decision in a different case, addressing a similar motion to reconsider submitted by YHT’s counsel, this Court explicitly ruled that pre-trial orders governing discovery are not immediately appealable. Progressive Ins. Co. v. S. Star Int’l, 5 A.S.R.3d 82, 84-85 (Trial Div. 2001). The Court’s reasoning was founded on statutes, caselaw and legal reasoning barring interlocutory orders from appeal unless they are final or else fall within the collateral order exception. Id.; A.S.C.A. § 43.0802.
The collateral order exception applies to orders that (1) conclusively resolve the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) [are] effectively unreviewable on appeal from the final judgment in the main case.” Kim v. Am. Samoa Gov’t, 17 A.S.R.2d 193, 195 (App. Div. 1990). The Court in Progressive found that pre-trial orders governing discovery do not fall within either the finality or collateral order exception, but rather may only be challenged on appeal from a final decision. 5 A.S.R.3d at 85.
Our February 21, 2001 Order Denying YHT’s Motion to Compel Discovery was not a final order, and does not fall within the collateral order exception. YHT’s present motion to reconsider such an interim order is neither authorized nor appropriate, and, as such, is ripe for denial.
*90A. Discovery Conference
Given the apparent antagonism between the attorneys and clients involved in the current case, we find it advisable to order the attorneys to appear before the court to discuss and settle discovery issues. Our authority to call such a discovery conference is explicitly given by T.C.R.C.P. 26(f), which states:
At any time after commencement of an action the court may direct the attorneys for the parties to appear before it for a conference on the subject of discovery.
We note that the Federal Rules of Civil Procedure have been amended to mandate such a conference, and require that four subjects be addressed during a discovery conference: (1) timing, in terms of what should be done in terms of the timing, form, or requirement for disclosures, including a statement as to when disclosures were made or will be made;' (2) subjects of discovery, in terms of which subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused upon particular issues; (3) limitations on discovery, in terms of what changes should be made in the limitations on discovery imposed under these rules or by local rale, and what other limitations should be imposed; and (4) other orders that should be entered by the Court, such as protective, orders, or pretrial conference issues. 6 James W. Moore et al., Moore’s Federal Practice § 26 (3d ed. 1999) (SP26-5 Rule); 8 Charles Alan Wright et al., Federal Practice and Procedure § 2051.1 (2d ed. 1990). Although we by no means adopt the federal rale requiring such conferences, we find the rale’s four designated ..areas of discussion extremely practical for present purposes, as guidelines for what we anticipate addressing at the discovery conference. As such, we require that both parties’ counsel file the following before the discovery conference:
1. A list of subjects to be addressed by discovery, either as a whole or in phases;
2. A proposed plan and schedule of discovery;
3. Proposed limitations to be placed on discovery in addition.. to those already adjudicated by the court; and
4. Any other proposed orders with respect to discovery.
We note that, in line with T.C.R.C.P. 26(f), all parties and their attorneys are under a duty to participate in good faith in .framing a.' discovery plan. An order of the Court will be issued after the discovery conference:
*91tentatively identifying the issues for discovery purposes, establishing a plan and schedule for discovery, setting limitations on discovery, if any; and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the action.
T.C.R.C.P. 26(f).
Order
1. The motion to reconsider the order denying the motion to compel discovery is denied.
2. Both counsel shall submit their respective discovery conference statements on the matters set forth above to the Court by May 25, 2001. The discovery conference is scheduled on June 4, 2001.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486696/ | DECISION AND ORDER
Plaintiff Fonotaga Seva'aetasi’s (“Seva'aetasi”) home and its contents were destroyed by a fire that broke out shortly after the defendant American Samoa Power Authority (“ASPA”) had reconnected electrical supply to the premises. ASPA had previously disconnected Seva’aetasi’s power because of delinquent utility bills. Seva’aetasi sued, claiming ASPA’s negligence as the proximate cause of her loss.
Seva'aetasi’s negligence claim is twofold. She argues that the doctrine of res ipsa loquitur applies in her case. She reasons that her home’s electrical system had been operational problem free for many years until ASPA shut down the power and then reconnected supply. She contends that these surrounding circumstances coupled with the occurrence of the fire shortly after reconnection, must point to some sort of negligence on ASPA’s part. “Homes do not ordinarily bum down without someone’s negligence.” (PI.’s Summation 2.)
Seva'aetasi’s second theory of negligence is based on the claim that ASPA had a duty of care to ensure that all the “breakers were off’ before reconnecting power. Id.
*93
1. Res Tpsa Loquitur
The doctrine of res ipsa loquitur applies “when the accident’s nature is such that past experience has shown that it probably resulted from someone’s negligence and that the defendant is probably responsible.” Lang v. Am. Samoa Gov’t, 24 A.S.R.2d 59, 61 (Trial Div. 1993). Specifically, the doctrine “applies to an accident only under the following conditions: (1) it ordinarily does not occur without someone’s negligence, (2) it was caused by an agency or instrumentality within defendant’s exclusive control, and 3) it was not due to a voluntary action by the plaintiff.” Id. In the final analysis, however, res ipsa loquitur, as the Appellate Division explained:
[I]s no more than one form of circumstantial evidence... . The inference of negligence to be drawn from the circumstances is left to the jury. They are permitted, but not compelled, to find it.
In other words, the doctrine, when applicable, merely establishes a permissive inference of negligence which the fact finder is not required to adopt.
Iosia v. Nat’l Pac. Ins. Ltd., 20 A.S.R.2d 123, 124-125 (App. Div. 1992) (quoting W. Page Keeton et al., Prosser and Keaton on the Law of Torts § 40 (5th ed. 1984)).
In the matter at bar, we find the evidence insufficient to sustain the inference of negligence sought by Seva'aetasi. First, while the evidence suggests that the fire had started at that part of the house locating the electrical panel, with ASPA’S meter on the opposite exterior side of the wall, the evidence also showed that there was nothing particularly involved or untoward with the disconnection and reconnection of electrical power supply by ASPA’s employee. The connection/ reconnection process simply entailed the removal of the meter (essentially a large male plug) from its outside wall mounted casing (a female receptacle); the attachment of plastic clips over two of the meter’s prongs to break the flow of current when reinserted back into the casing; and then reversal of this process to reestablish electrical flow back into the premises. ASPA’s employee did nothing out of the ordinary with reconnection such as would demonstrate negligence.
Moreover, the evidence further revealed that ASPA’s employee had not put in a new or different meter. Reconnection here involved the very same meter that Sevaaetasi’s structure had operated with in the past. This fact runs counter to counsel’s opening submission that the fire must *94be attributable to a faulty meter put in place by ASPA.1
A more probable explanation of the fire may be drawn from the testimony of Mr. Fred Niedo, an electrical engineer with the Department of Public Works. Mr. Niedo, who was called as plaintiffs expert witness, explained that the reconnection of power to premises with heavy loads on, such as freezers, dryers, air conditioners, water heaters, etc., will result in a heavy in-rash of current to the electrical system. This inrush can result in an overload on the system that can in turn generate sufficient heat to destroy the integrity of the wiring insulation, and cause a fire.
However, Mr. Niedo also went on to say that there are, with a properly designed and wired electrical system, a “cascade” of safety features in place to meet overload hazards. These include, a properly fused main safety switch; properly sized wire from the main to the panel board to carry overall load; and on the panel board itself, the right size of fuse, wires, circuits breakers and other components designed or sized to carry the individual loads and the overloads.
The circumstances here suggest that the fire was due in part to a total failure of the safety features that Mr. Hiedo had described as ordinarily expected. How an electrical system is designed and put in place to incorporate these safety features, however, are matters within the consumer’s control and not ASPA’s. This point was underscored in the evidence showing that the burnt structure was originally a family residence and its electrical system was presumably, therefore, designed for residential purposes. The premises’ electrical system was at some subsequent time altered by Seva’aetasi’s former husband, Don Hardy, to accommodate a store and business office. While this reconstruction added accordingly to the burden of the electrical system, the alterations to the system were undertaken without the prerequisite permits from the building branch.
Additionally, the fire would have escalated because of action unwittingly taken by a Seva’aetasi family member who initially responded to the fire by throwing a bucket of water at the apparent source of the fire, the panel. Mr. Niedo testified that throwing water on the panel would result in a fire. Clearly, res ipsa loquitur is inappropriate under these circumstances.
*95
2. Prprp.qurxif.p. Duty Of Carp.
Lastly, Mr. Miedo also testified that the fire could have been avoided if the various load bearing appliances or the various circuit breakers in the premises had been turned off prior to reconnection. To this end, plaintiffs counsel submits that ASPA should have made sure that all the panel breakers were switched off prior to reconnection. (Pl.’s Summation 2.) Effectively, counsel is advocating that ASPA had such a duty of care.
No authority was cited for this proposition, and we fail to see a basis for this contention. What, for instance, would be the consequences of a general power outage, a not infrequent occurrence on-island? The logical extension of this sort of argument is the requirement that ASPA would have to go about ensuring that the circuit breakers of every one of its customers are switched off before it can safely restore electrical service without fear of liability. It takes little imagination to picture the impracticality of such a state of affairs. In our view, overload hazards are better met by maintaining the onus with utility consumers to ensure that their safety switches, circuit breakers, wiring, and all other components of their respective electrical systems are adequately designed, sized, and put in place.2
We conclude that Seva’aetasi has failed to prove actionable negligence on ASPA’s part. Judgment will accordingly enter in favor of the defendant.
It is so ordered.
The meter, incidentally, mysteriously went missing. The only evidence of the meter at the scene shortly after the fire were the shattered remains of the meter’s glass covering which were found inside the room housing the electrical panel.
ASPA’s counsel points us to certain regulations, said to have been duly promulgated under the Administrative Procedures Act, § 4.1001 et seq., (“APA”), purporting to limit ASPA’s liability. We were referred to an excerpt from Title 12 A.S.A.C.
The cited regulations, however, were in fact promulgated in 1981 under the Governor’s rule making authority, under Section 6, Article IV of the Revised Constitution of American Samoa and not under the APA. See A.S.A.C. § 12.0103. These rules, which were promulgated to, among other things, set up a separate utility entity, have been ostensibly trumped by subsequent legislation enacted in 1982. See A.S.C.A. §§ 15.0101 et seq. This legislation actually empowers the statutory entity ASPA to promulgate rules under APA. See A.S.C.A. § 15.0102(8).
At this time, we merely posit, but do not address, the vitality of the regulations cited to us by counsel. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486697/ | OPINION AND ORDER
Plaintiff Paulo Moana (“Moana”) brought this action to recover damages against defendant Pagofie Fiaigoa (“Pagafie”) for alleged breach of contract and fraud. Trial was held on April 6, 2001. Moana, his counsel, and Pagofie ware present. The Court heard testimony and has considered the evidence.
Discussion
Facts and Contentions
Moana is a citizen of Samoa but a long-term resident of American Samoa. Moana and Pagofie have known each other for a number of years, and Pagofie was aware of Moana’s citizenship. Moana wanted to purchase land here for his home, and he heard that Pagofie was selling land located in Tafima near where Moana’s in-laws had earlier purchased land from Pagofie.
Pagofie and Moana met on February 14, 2000 and made an oral agreement under which Pagofie agreed to sell to Moana, and Moana agreed to buy from Pagofie, a quarter acre parcel of land in Tafima for $40,000. Under the terms of the agreement, Moana paid $5,000 as a down payment and was to pay $500.00 by the end of each month, starting in March 2000, until the purchase price was paid in full. Pagofie would then convey title to the land by deed to Moana as individually owned land.
The down payment was paid by a business check of S&T Produce Co., owned by Siufaga Fanene (“Fanene”), a gift to Moana for lengthy service as an employee of Fanene’s business. The check was payable to Pagofie. The purpose line on the check reads: “Down for Paulo Moana’s 1/4 Acre Land.” Pagofie was hesitant about taking a check of another’s business for this purpose, but he knew Moana’s relationship with Fanene and did accept it.
*98Having been so advised by Fanene, Moana told Pagofie that the agreement must be put in writing, and Pagofie agreed to have the paperwork prepared by his attorney. Before the end of February 2001, Moana called Pagofie several times to ask about the paperwork, and Pagofie kept assuring him that it would be ready the next day. Finally, Moana went to see Pagofie, and Pagofie told him not to worry because the paperwork would be forthcoming. Pagofie also gave Moana permission to build a house, on the land before payment of the purchase price was complete.
On March 27, 2000, Moana again called Pagofie, who once more assured him the paperwork would be done. On March 28, 2000, relying on Pagofie’s word, Moana paid Pagofie the first monthly installment of $500, plus $400 for a survey of the land. This payment of $900 was made by a cashier’s cheek payable to Pagofie. The bank’s receipt for the check bears the notation: “From Paulo Moana $400 Land Survey $500 1st Payment.”
As the deadline for the April installment approached without any paperwork produced, including a survey of the land, Moana was increasingly concerned about Pagofie’s intentions. Then, on April 26, 2000, Pagofie told Moana that the purchase price of the land would be increased by $5,000 to $45,000. Moana refused to agree to this increase. Believing that Pagofie never intended to carry out the agreement, Moana also advised Pagofie that he no longer wanted to buy the land and demanded that Pagofie refund the $5,900 he had paid to that point. Pagofie refused to refund the monies paid, and this action was filed upon his continuing refusal to do so.
Based on his understanding of the change in the law in 1999, Pagofie said that he thought Moana as an alien could not acquire title to land in American Samoa.3 He claimed, however, that he expected the title would be put in the names of Moana’s children who were bom here. Pagofie also acknowledged that the land was his family’s communal land, not his individually owned land, but according to him, he as the sa'o of the *99family did obtain his family’s consent to convert the land to individually owned land and consummate the transaction. Pagofie stated that he explained both of these matters to Moana in February 2000. Moana denied that Pagofie made any such explanations.
Pagofie apparently gave the funds paid by Moana to his mother and other family members to spend. He insisted that he intended to perform the agreement, and that he is still prepared to do so. He testified that the delay initially came about because he was still looking for an attorney to prepare the paperwork and a surveyor to survey the land. He claimed that Moana breached the agreement by not paying the April and May installments, and that Moana confirmed the breach in June 2000 when he informed Pagofie that Fanene had promised Moana land for his home at no cost. However, Fanene actually made this offer to Moana only about two or three months before the trial, well after the deal soured.
Pagofie testified that he did not return the funds paid by Moana because Moana did not truthfully promise to pay the purchase price for the land and because he, Pagofie, spent considerable time, including efforts to persuade his family to sell the land, on the proposed transaction. He argued that he will still honor the agreement, and because Moana broke his promise to pay, he should, in any event, be permitted to retain at least 25% of the amount paid.
Although the parties do not dispute the existence of an oral land conveyance agreement, the agreement must fulfill certain statutory requirements to be valid. Accordingly, we next discuss the applicability of these requirements to the agreement at issue in this case.
A. Statute of Frauds
American Samoa law does not recognize a contract for the sale of real property unless if is in writing, or has been partially performed. A.S.C.A. § 37.0211. The writing prescribed by statute, commonly known as the statute of frauds, calls for “some note or memorandum . . . subscribed by the party to be charged.” Id. The writing need not, therefore, be a formal document.
Nonetheless, the note or memorandum should “completely evidence the contract which the parties made by giving all of the essential or material terms of the contract.” 72 Am Jur 2d Statute of Frauds § 339 (1974). In Cousbelis v. Alexander, the court concluded that notations on a check were sufficient to satisfy the statute of frauds. 54 N.E.2d 47, 48-49 (Mass. 1944). The parties to the contract were the payee (seller) and drawer of the check (buyer); the seller cashed the check, which on its face noted the land’s street location, the only land owned by the seller, *100and the land’s square foot price. Id.; see also Kidd v. Kidd, 393 P.2d 403, 405 (Cal. 1964) (finding decedent’s signed receipt combined with two checks totaling agreed upon purchase price satisfied the statute of frauds).
On the other hand, if the parties have not reduced the essential terms of a land conveyance to writing but have partially performed the contract, A.S.C.A. § 37.0211 authorizes the Court to enforce the oral contract. We have recognized the Court’s explicit power to compel specific performance of a partially performed contract. Manoa v. Jennings, 21 A.S.R.2d 23, 25 (Land & Titles Div. 1992); see also Blue Pac. Mgmt. Corp. v. Paisano’s Corp., 23 A.S.R.2d 58, 62 (Trial Div. 1992).
Arguably, the notations on the down payment check and cashier’s check, coupled with Pagofie’s endorsement on the down payment check, are sufficient evidence of this land purchase agreement to validate the agreement for purposes of A.S.C.A. § 37.0211. However, we need not rule on the sufficiency of the writings. Instead, we find that based on the facts of this case, Moana’s payments constitute part performance giving him entitlement to specific performance of the contract if he still desired to purchase the land. Understandably, however, he has elected to pursue breach of contract damages as his remedy in the present situation.
B. Breach of Contract
When a party to a contract breaches the contract, the other party may be entitled to the equitable remedy of rescission. See Davis v. Cordell, 115 S.E.2d 649, 654 (S.C. 1950). “Breach of a contract, to justify rescission, must be so substantial and fundamental as to defeat the purpose of the contract.” Id. at 654.
In this case, the parties did not agree on a specific time for Pagofie to survey the land, and in such cases, a reasonable time will be implied. Id. Clearly, Pagofie breached the agreement when he failed over a two-month period, a more than reasonable time, to produce a written contract to fully document the terms of the land purchase agreement and to provide a survey of the quarter acre of land involved, as Moana reasonably requested and expected. In fact, it was conceivable from Pagofie’s delay, together with his attempt to coerce an additional $5,000 from Moana, that Pagofie did not intend to carry out his end of the bargain. Pagofie’s breach was substantial enough to defeat the purpose of the contract entitling Moana at that point to rescind the contract and recover his damages. Moana’s compensatory damages are $5,900, the amount of the downpayment plus the amount of the first installment and survey cost payment.
*101Fraud is suggested by Pagofie’s foot-dragging and improper attempt to increase the purchase price after the agreement was formulated. However, we are not persuaded that Pagofie harbored actual intent to defraud when the contract was entered. He was, at least, eager to take advantage of an opportunity to have in hand a substantial sum of money, even though he was not prepared to perform his side of the bargain in any reasonably expeditious manner. It appears that later on he thought that Moana had access to and could be readily manipulated to pay additional funds. His misconduct in handling this transaction was deliberate and certainly reprehensible, and warrants assessment of $1,500 as exemplary damages.
Order
Pagofie shall pay Moana $5,900 in compensatory damages for Pagofie’s breach of the land purchase contract between Pagofie and Moana and $1,500 as exemplary damages, a total of $7,400, plus Moana’s costs incurred in this action. The total amount of the judgment, including costs, shall bear interest at the rate of 6% per annum until the judgment is paid in full.
It is so ordered.
The change in the law is not free of ambiguity. P.L. No. 26-6 (1999) modified definitions in A.S.C.A. § 37.0201 affecting land ownership to read as follows:
(c) “Native” means a full-blooded Samoan person of Tutuila, Manua, Aunu’u, or Swains Island.
(d) “Normative” means any person who is not a native under subsection (c) above.
However, because the central issue in this action concerns concerns breach of contract rather than real property ownership, we need not reach the question of the proper interpretation of the new law. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486699/ | OPINION AND ORDER
On January 17, 1996, Mr. Anthony Sardina (“Sardina”) slipped and fell on his backside in the passageway of the F/V Kassandra Z tuna seiner (“Kassandra Z”). Sardina, who was a licensed Master and Navigator on the Kassandra Z at the time, claims that he suffered physical injuries from the fall so severe that he has been unable to continue his career in commercial fishing. Sardina alleges that the ship was unseaworthy because of a faulty refrigeration unit that caused water to leak, rendering the floor slippery and hazardous, and causing him to slip, suffer concussion, and injure his back. He further argues that defendants are negligent under the Jones Act, U.S.C. § 688, because of their failures to fix the refrigeration unit and to cover the floor with non-skid strips. Sardina additionally prays for maintenance and cure benefits and compensatory damages. The vessel Kassandra Z has been arrested and sold, against which proceeds Sardina wages these claims.
We note jurisdiction under A.S.C.A. § 3.0208(a)(3); the Jones Act, 46 U.S.C. § 688; and T.C.R.C.P. 9(h). See Clifton v. Voyager, Inc., 29 A.S.R.2d 80, 86-87 (Trial Div. 1995).
Findings of Fact
At 5:45 p.m. on January 17, 1996, Sardina showered, dressed, put on his customary Scott-brand flip-flops, and walked down the ship’s passageway toward the laundry room to move his clothes from washer to dryer. He carried nothing of note. On the way, Sardina noticed the ship’s cook preparing dinner in the galley adjacent to the passageway. The seas were calm, and the weather was good. Sardina returned to his quarters. Then, about 6:30 p.m., Sardina headed for the laundry room to fetch his clothes. He safely traversed the first part of the passageway, which was covered with non-skid strips. These were approximately five inches thick, one foot apart, and extended the width of the walkway. Sardina then stepped over a doorframe leading into the bare area of the passageway adjacent the galley. The ship’s crew had apparently run out of non-skid strips in the midst of installing them.1 The exposed floor *109material before the freezer was terrazzo, a composite material typical of fishing vessels that is used to cover steel decks.
Sardina then noticed the ship’s dog, Julie, sitting by the galley in the passageway. He took about six steps, placed one foot in a wet area just before the freezer door, and promptly slipped backwards. He landed on his back and slammed his head on the deck in uncertain order. He lost consciousness. When Sardina awoke, his back was wet.
The gasket of the freezer door had deteriorated. The captain had requested a new rubber gasket from the owners of the vessel, but this request had not been heeded. The defect in the gasket caused below-freezing air to escape and collide with the humid equatorial airs of the South Seas. Water condensed on the stainless steel freezer door, corroding it, causing rust, and leaking water onto the floor. Six crewmembers had slipped before the freezer door previous to Sardina.
Sardina could not get up due to dizziness, excruciating pain, and disorientation. He unsuccessfully attempted to pound on the bulkhead for attention. He was finally found by a crew member who immediately notified the cook, other crew members, and Fish Captain Gjoko Milisec, who alternated that position with his brother Goren Milisec. Sardina could not move, but was placed in a chair and lifted up by crewmen. When the chair could not get through the doorway, crewmen hefted Sardina by his feet and arms and took him to his room, where he returned about 7:30 p.m.
Because of pain in the lower back, buttocks, and legs, as well as nausea, dizziness and headaches, Sardina called the Maritime Health Service at 9:45 p.m., a twenty-four-hour medical consulting service for seamen. He spoke to Dr. Keith McGill, who prescribed medicine and advised Sardina to seek medical care at the nearest port due to concerns over unconsciousness and possible brain damage resulting from the fall.
The Kassandra Z then headed to Rabaul, New Guinea, the nearest port. An agent for Arnold and Arnold Insurance Company (“Arnold and Arnold”), the insurance company for Kassandra Z, met Sardina at the boat and arranged for him to visit the hospital there, Sardina was examined by Dr. J. Pulau, who performed back x-rays of Sardina, diagnosed him with a compressed disk in his back, and advised him to receive a proper spinal examination and CAT scan of the back and head region.
On January 25, 1996, Sardina flew back to Los Angeles. More or less upon return to San Diego, Sardina moved in with his parents due to financial difficulties. He has paid neither housing nor board expenses *110while living with his parents. In the U.S., Sardina saw Dr. Henry Joseph Laufenberg (“Dr. Laufenberg”) a general surgeon referred by Arnold and Arnold. Less than two weeks after the accident, on January 29, 1996, Dr. Laufenberg diagnosed Sardina with a contused scalp, or a swollen, raised area of about eight by six centimeters on the head that appeared about 50% reduced from its probable original size. A CAT scan performed on Sardina’s lumbar spine on January 30, 1996, revealed arthritic process, or slight narrowing of the bone, and two herniated, bulging discs.
In the next three months, from February to April, Sardina saw Dr. Laufenberg four more times. Dr. Laufenberg diagnosed Sardina with having a cerebral concussion with post concussion syndrome,2 severe cervical sprain, lumbar sprain, and possible tarsal tunnel syndrome in the right foot. He prescribed pain medications to Sardina, and recommended physical therapy and stretching exercises. He referred Sardina to pain specialist Dr. Kevin Barkal, neurologist Dr. Bruce Lasker due to the head injury and memory and learning problems, and to podiatrist Stephen Altman because of problems with Sardina’s feet.
Dr. Lasker’s laboratory report suggested tarsal tunnel syndrome in the right foot, which is pinching or irritation of the posterior tibial nerve, the neurovascular bundle that supplies blood to the foot, which pinching causes numbness, sensitivity, and burning pain in the ankle similar to carpal tunnel syndrome. Dr. Altman confirmed the tarsal tunnel syndrome and recommended an orthotic insert as an alternative to ankle surgery. Dr. Lasker also conducted a Magnetic Resonance Imaging (MRI) test on Sardina’s lumbar spine, which indicated mild degenerative disc changes within the lower lumbar spine with a mild disc bulge.
By June through August of 1996, Sardina still suffered from memory problems, learning problems, and continuing pains in his legs. He had also gained more than twenty pounds since the accident, registering 256 pounds or; June 26, 1996, compared to his initially recorded weight of 232.5 pounds. Sardina was bedridden for several days in July due to unrelenting pain.
By August 21, 1996, Sardina still reported pain in his neck and lower back, as well as psychological symptoms such as getting lost en route to his cousin’s house, depression and feelings of worthlessness. It was at that time that Dr. Laufenberg recommended that Sardina receive epidural injections from Dr. Lasker, as had been requested by attorney Dale Amman from Arnold and Arnold on June 28, 1996. *111Sardina received epidural injections in October and November 1996, with only temporary abatement in his pain and memory problems. By March 12, 1997, a year and two months after the accident, Sardina reported that the headaches, lower back pains, and memory problems had not improved after the epidural injections. He further registered an increased weight of 269 pounds, or 36.5 pounds heavier since his initial visit.
In April 1997, Sardina was again referred to a neurologist, a podiatrist, and a pain specialist. For back treatment, Dr. Laufenberg referred Sardina to orthopedist Dr. Richley, who specializes in trauma and back pains. Sardina visited Dr. Richley on June 3, 1997. Dr. Richley conducted a physical exam of Sardina including a straight leg-raising test to reveal damage to Sardinas cranial nerves. He initially diagnosed Sardina with post concussion syndrome, lumbar-disk syndrome, and back and leg pain caused by lumbar-disk injury.
An MRI was conducted on June 25, 1997, Dr. Laufenberg and Dr. Richley found this MRI to evidence interdiskal disruption with herniation in the L4 and L5 disk materials. Dr. Laufenberg opined that Sardina by this point had failed medical therapy, and placed him on pain medications. He further stated that the trauma could have caused degenerative effects, and recommended back surgery to cure the problem. Dr. Richley also recommended back surgery to appease Sardina’s back pain and allow him to return to work. However, surgery was not performed because the shipowner of Kassandra Z refused to release insurance funding. If the surgery had been performed, according to Dr. Richley’s testimony, the pain would have subsided sooner and Sardina would have been back to work.
Unable to obtain insurance funding despite retaining an attorney and making numerous requests to Arnold and Arnold, Sardina suffered pain, problems walking, nighttime awakening, depression and general frustration for the following two years. He regularly took Tylenol and Vicodin, and attempted to exercise.
Throughout 1998, Sardina complained that the pain was getting worse, spreading through his neck, back and left and right legs. He also complained of muscle stiffness in the mornings, inability to sit for more than 40 or 50 minutes, and memory and learning problems. He took Vicodin only when the pain became extreme. On November 18, 1998, at Sardina’s request, Dr. Laufenherg evaluated Sardina for eligibility for a disability parking card. Dr. Laufenberg found Sardina unable to walk the distance to get into school or a store, and Sardina procured the card.
Until December 1999, Sardina’s daily experience of pain in the lower *112back and extremities, numbness in the buttocks, thighs, instep and toes continued, though it appears to have fluctuated in intensity. The mental confusion did clear up, and Sardina continued pain medication and physical therapy.
Finally, on December 7, 1999, Dr. Richley performed “minimally invasive spinal surgery” on the L3-L4 and the L4-L5 disks in Sardinas back. This involved lasers, rather than the more traditional, expensive and drastic measure of surgically opening the back to take the problem disk out. Dr. Richley testified that he preferred laser surgery for Sardina because it was an outpatient surgery, and enabled the disk to remain in Sardina while removing and firming up the material inside it.
After surgery, Sardina reported some back pain but no leg pain. On December 21, 1999, Dr. Richley found Sardina to be relieved of sciatica and numbness, and he prescribed therapy. In January 2000, Sardina reported to Dr. Laufenberg that his pain was gone. On February 21, 2000, Dr. Richley found no back or leg pain, nor neurologic deformities. By March 8, 2000, Dr. Laufenberg found Sardina fully recovered, even in terms of memory and learning disabilities, and discharged him.
All expert medical testimonies to the court agree that Sardina is recovered enough to resume most normal, daily activities. The laser surgery has relieved the symptoms of interdiskal disruption caused by the January 17, 1996, fall on the Kassandra Z. Sardina must, however, refrain from prolonged standing, continuous walking on uneven surfaces, or lifting heavy objects. For these reasons, he can no longer work on a fishing boat.
A. Work History and Prospects
Since 1977, Sardina has served on at least fourteen separate vessels. He received his U.S. Coast Guard master’s certification in 1986 for up to 1600 gross ton inspected vessels upon the ocean, and up to 5000 ton uninspected vessels. He held this license until his injury. When not fishing, Sardina has held a number of short-term non fishing jobs, predominantly sea-related, including work as a captain on touring vessels for companies such as the San Diego Harbor Excursion and Catalina Cruises. He also worked as a hydro flow captain at Sea World, as a navigator on the submarine tender Edison Chóuset, and as captain of a Long Beach crew boat transporting personnel to oil rigs. Sardina held a limited number of non-fishing industry jobs, including selling cars at John Hine Pontiac and the Westcott Mazda dealers, and working for relatives at a delicatessen. He was employed on the Kassandra Z as master, which position entailed in Sardina’s own words, “complete responsibility for vessel and crew, to make sure the vessel gets to *113wherever the fishing captain wants it to go safely and in one piece.”
Sardina is a high school graduate, and holds U.S. Coast Guard licenses for first mate and master, including training in celestial navigation, some engineering, and first aid. He now holds his pilot’s license in aviation, and in 1999 became licensed as a flight instructor.
Between the accident and a deposition taken on October 14, 1997, Sardina was unable to seek employment due to physical pain and depression. Nor was he able to partake of the few leisure activities he once enjoyed, such as water skiing or working on his car despite daily dosages of Vicodin, Tylenol and aspirin for pain relief. As of trial, Sardina was able to work as a host at a karaoke bar and as a part-time flight instructor.
I. Unseaworthiness
Sardina’s first claim is that the vessel Kassandra Z was unseaworthy. Under general maritime law, a shipowner is absolutely liable for indemnity for injuries if these were received as a result of the unseaworthiness of the ship or failure to supply and keep in order the appliances of the ship. Platt v. Chesapeake & 0. Ry. Co., 82 F. Supp. 968, 970 (D.C. Ohio 1948). Absolute liability for unseaworthiness, under admiralty law, is based on the protection of seamen who sign articles for a voyage and are then under the absolute control of a master with power to order seamen to do the ship’s work in any weather, under any conditions, using such equipment as maybe furnished by the shipowner. Offshore Co. v. Robison, 266 F.2d 769, 781 (5th Cir, 1959). Due to the extreme hazards of living in a ship and the trust implicit in the obedience and physical deference given to the owners and officers of a ship, the shipowner’s liability for personal injuries under the doctrine of unseaworthiness is strict, absolute, and without fault. Reinhart v. United States, 457 F.2d 151, 152 (9th Cir. 1972).
The warranty of seaworthiness contemplates not only the turbulence of the oceans but also conditions peculiar to ships, where space and equipment must be utilized carefully to minimize accident-inducing hazards. Delome v. Union Barge Line Co., 444 F.2d 225, 229 (5th Cir. 1971). Specifically, a shipowner has the duty to every seaman employed on board to insure that appliances are “reasonably fit for the purpose for which they were used.” Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 213 (1963); Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960). This duty includes maintaining a ship’s equipment in proper operating condition. See Mahnich v. Southern S.S. Co., 321 U.S. 96, 103-04 (1944). The failure of a piece of vessel equipment under proper and expected use is sufficient to establish unseaworthiness. Lee v. Pac. *114Far East Line, Inc., 566 F.2d 65, 67 (9th Cir. 1977).
A. T Tnseawortby Equipment
We find that Kassandra Z failed to maintain the freezer in good condition. Sardina has more than amply proven through photographs, video and testimony that the gasket in the freezer door was broken before and at the time of his accident. We take judicial notice of the definition of “gasket” by the American Heritage Dictionary of the English Language 749 (3d Ed. 1992), as “[a]ny of a wide variety of scabs or packings used between matched machine parts or around pipe joints to prevent the escape of a gas or fluid.” The gasket of a freezer door is thus clearly intended to prevent the cold air of the freezer from escaping. The fact that the gasket on the Kassandra Z’s refrigeration unit was broken, that rust appeared on the outside and bottom of the freezer door, and that at least six crew members had previously slipped in the wet area support our finding that, as a result of the broken gasket, condensation and leakage occurred.
The freezer door further appears to have been used in normal, expected ways. The cook was preparing dinner in his usual course just before Sardina slipped. Such habitual, dutiful work requires frequent entry and exit of the walk-in freezer adjacent the galley, in the passageway. The seiner was at rest in South Pacific seas, where great potential of condensation exists at any interstice between the omnipresent humid climate and the internal cooling system of a freezer. We have found that, as a matter of fact, leakage caused water to pool before the freezer. This fact, coupled with the kitchen logic of the South Seas, cements our finding that the area was made dangerous and unsafe by the freezer defect.
Under these circumstances, we find that the broken gasket rendered the freezer door unreasonably hazardous, especially since the ship was at work in the humid South Pacific, with great potential condensation. We thus render a finding of unseaworthiness.
B. Proximate Canso
To prevail on a claim of unseaworthiness, a plaintiff must show both unseaworthiness and proximate causation. Nelsen v. Research Corp. of the Univ. of Hawaii, 805 F. Supp. 837, 850 (D. Haw. 1992). The unseaworthy condition must have played a substantial part in bringing about or actually causing the injury, and the injury must be either a direct result or a reasonably probable consequence of the unseaworthy condition. See Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1355 (5th Cir. 1988).
*115We are convinced that Sardina’s slip and fall on the Kassandra Z on January 17, 1996, proximately caused his back injuries. Specifically, the testimonies of Dr. Laufenberg and Dr. Richley confirm that the fall substantially caused Sardina’s post concussion syndrome, tarsal-tunnel syndrome, back injury and painful degeneration of the L4 and L5 spinal disks requiring surgical treatment. We discuss our findings in more detail, especially in lieu of the competing testimonies of Dr. Vance versus Dr. Richley, in the following section.
II. The Jones Act
Sardina brings a tort claim under the Jones Act, 46 U.S.C.A. § 688, which provides a remedy for seaman injured in the course of their employment as a result of their employer’s negligence. Prior to the passage of this provision, if a seaman suffered personal injuries in service of his ship, the ship and her owners were liable in admiralty for his maintenance and cure and for his wages, at least until the end of the journey, and for an indemnity for injuries if they were received as a result of the unseaworthiness of the ship or failure to supply and keep in order the appliances of the ship. Platt, 82 F. Supp at 970. The seaman could not, however, recover for injuries sustained through the negligence of the master or any member of the crew, beyond maintenance and cure. Id.
The Jones Act made applicable the Federal Employers’ Liability Act (FELA), 45 U.S.C.A. § 51, to maritime law, thereby authorizing a right to recovery for seamen injured due to the negligence of their employer, its agents or employees. Joyce v. The Atl. Co., 651 F.2d 676, 681 (10th Cir. 1981); O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 38 (1943); De Zon v. Am. Pres. Lines, 318 U.S. 660, 665 (1943); Engel v. Davenport, 271 U.S. 33, 35 (1926). Sardina brings his claim against Kassandra Z for Jones Act negligence.
A, Standard of Care
Under the Jones Act standard of negligence, a shipowner has an obligation to seamen that is substantially greater than the obligation of ordinary employer to employees. Interocean S.S. Co. v. Topoloisky, 165 F.2d 783, 784 (6th Cir. 1948). The shipowner has an absolute, nondelegable duty to exercise reasonable care in furnishing seamen a reasonably safe place to work, a seaworthy ship and safe equipment. Miranda v. Texaco, Inc., 299 F. Supp. 658, 661 (E.D. Pa. 1969); Casbon v. Stockard S.S. Corp., 173 F. Supp 845, 848 (D. La 1959). The shipowner must use due diligence in providing these. Rouchleau v. Silva, 217 P.2d 929, 932 (Cal. 1950). The shipowner-employer need not absolutely guarantee the safety of the vessel, but must take reasonable precautions to secure safety. Wilson v. Societa Italiana d Armatnento, *116279 F. Supp. 945, 947 (D. La. 1968). Breach of this duty gives rise to the action based on negligence. Id.
The evidentiary showing required to establish negligence requires actual or constructive knowledge, while the evidentiary showing to establish unseaworthiness is predicated without regard to fault or the use of due care. Lee, 566 F.2d at 67. Even given this higher standard, we find that Cassandra Z breached its Jones Act duty to maintain a reasonably safe, seaworthy place in which to work in two ways. First, it breached its duty to maintain safe freezer equipment by not providing essential parts. Second, it failed to supply relatively inexpensive nonskid safety strips in the area before the freezer door.
1. Freezer Equipment
First is the issue of whether the duty to provide a reasonably safe vessel applies to defective freezer equipment. In applying the Jones Act, courts have held it to be an absolute, nondelegable duty of the shipowner to maintain a reasonably safe vessel, extending to equipment and appliances used on the vessel. These must be proper and free from defects that are known or which should have been known in exercise of due care. Havens v. F/T Polar Mist, 996 F.2d 215, 218 (9th Cir. 1993). Due and reasonable care must be taken to maintain the appliances in seaworthy, safe and proper condition. Pearson v. Tide Water Assoc. Oil Co., 204 P.2d 99, 103 (Cal. App. 1949).
We have found that Kassandra Z failed to use reasonable care in maintaining the ship’s freezer equipment. We further find that Kassandra Z had notice of the defective freezer and of the resultant unsafe condition, and yet still neglected to use reasonable care in failing to supply such essential equipment. Fish Captain Gjoko Milosec testified that the shipowner failed to supply the necessary replacement gasket for the freezer despite his request. The fact that six seamen had slipped in the same location, and that a water trail was visible and obvious to one on the lookout for safety hazards, further confirms to this court the improbability of Kassandra Z’s ignorance of the dangerous condition. Defendant’s financial difficulties provide an explanation, but do not establish a defense for such an obvious breach of the shipowner’s duty to maintain ship and equipment in reasonably safe and seaworthy condition.
2. Non-skid strips
The entire passageway, from the bottom of the wheelhouse starts to all three crews’ quarters up to the area adjacent to the galley, was covered with non-skid strips. The question is thus whether defendants had a duty to provide non-skid strips in the latter section, specifically in the *117walkway before the freezer. Or, in legal terms, whether the lack of preventive safety equipment in this case meets the “reasonably safe” requirement of the Jones Act.
A shipowner does not have a duty to supply the best, newest, or perfect tools, gear, or appliances, so long as the gear supplied was reasonably safe and suitable. Marshall v. Ove Skou Rederi A/S, 378 F.2d 193, 197-98 (5th Cir. 1967). A shipowner is not required to provide an accident-proof ship nor the latest and best safety devices, but only to provide a safe place in which to work and safe and seaworthy appliances with which to do the work. Senton v. United Towing Co., 120 F. Supp. 638, 640 (N.D. Cal. 1954); Robichaux v. Kerr McGee Oil Indus., Inc., 317 F. Supp 587, 592 (S.D.N.Y. 1970).
The bare floor upon which Sardina slipped was made of a terrazzo material. The evidence shows that terrazzo deck floors ordinarily are not, in and of themselves, unsafe or slippery. Captain Harold Medina, who was a fish captain for more than 20 years and who served on safety commissions for the U.S. legislature as well as the National Academy of Science, testified that terrazzo decks are common on the interior of tuna seiners, and at least in 1969 were present on all vessels in the galley and hallways. Terrazzo is also a commonly used flooring material in and outside of on-land public spaces such as stores. See, e.g., Foster v. Walgreen’s Drug Stores, Inc., 468 So.2d 656, 657-68 (La. App. 1985). However, testimony by all “experts,” including Captain Medina, Captain Kenneth Frahke and David Snow, indicate that terrazzo material becomes extremely slippery when wet, especially when combined with food particles and/or grease.3 The very fact that the hallway was mostly *118covered in non-skid strips indicate an awareness and concern for the safety hazards of a slippery passageway.
Despite the slipperiness of bare, wet terrazzo floors, we have found no evidence to the effect that non-skid safety strips are required or used by industry standard and custom. We accept Captain Medina’s testimony that bare terrazzo floors are considered reasonably safe and may be the norm on most ships. Thus, based on all evidence given, this court is neither qualified nor inclined to make the new finding, and create the new requirement, that shipowner have a duty to provide non-skid strips on their boats.
This case, however, involves two unique conditions of the Kassandra Z: (1) its passageway was entirely covered in non-skid strips except, notably, in the area before the faulty freezer; and, (2) that bare area was made unsafe by water leakage from that freezer. A wet walkway that is half-covered by non-skid strips is more dangerous than one that is not covered at all, or else fully covered. The person walking through such a walkway adapts to the higher friction of treading on safety strips; the feet are misled, and perhaps move too quickly than they otherwise would, or perhaps too surely. Then, suddenly, as the foot moves freely forward into the danger zone, it is caught reasonably, understandably, off-guard.
Perhaps the seaman is hungry and the dinner smells distract. Perhaps the dog sitting by the galley sports a new collar. Regardless of the unconscious cause, a seaman exercising reasonable safety may be completely ambushed by a water slick at the very point at which the floor suddenly, inexplicably, and counter-intuitively transitions to a state of smooth terrazzo. He may even flip, like Sardina, with a force strong enough to render a grown man unconscious. The inconsistencies of foothold along the passageway, coupled with the moist conditions of the freezer area, are determinative in this case. The fact that six crew members fell in the same area as the plaintiff is confirmation to this Court of the extreme, heightened, and surprising dangerousness of the *119passageway.
This case is one example of how a botched attempt to provide safety equipment may sometimes lead to a more dangerous situation than no attempt at all. See Rebuke v. United States, 8 F. Supp. 521 (D. La. 1934) (seaman, either through fault of dog or otherwise, lost balance and stumbled against chain safety railing and fell to a lower deck because chain was slack. Shipowner found negligent in permitting chain to remain slack, and such negligence was the proximate cause of the injuries). If the safety equipment that would have prevented the injury or death were impossible to install, then of course a shipowner cannot be held to have breached their duty of reasonable care. Epling v. M.T. Epling Co., 435 F.2d 732, 735 (6th Cir. 1970). In this case, however, an insufficient number of non-skid strips had been provided. The strips are common and readily available, and easy to install. But they had not been sent. The failure to provide reasonable and procurable safety equipment, if such failure proximately causes the injury (the inquiry of the following section), is grounds for a finding of negligence. Theall v. Sam Carline, Inc., 241 F. Supp. 748, 750 (D. La. 1963) (workman fell on catwalk and hand became entangled in an engine belt; shipowner found negligent for absence of guard rails); Lunsford v. Halcyon S.S. Co., Inc., 354 F. Supp. 573, 576 (E.D. Pa. 1973) (shipowner negligent for failure to provide requested ladder to bunk where injury occurred on rolling, pitching ship). The lack of customary or statutory standards for such equipment does not preclude recovery for negligence. See, e.g., Armit v. Loveland, 115 F.2d 308, 312 (3d Cir. 1940).
We find that the lack of non-skid strips on a patch of bare floor made wet by a defective freezer, in the context of a walkway otherwise covered in non-skid strips, is an unreasonably unsafe condition in violation of a shipowner’s absolute duty of care.
B. Proximate Cause
FELA defines the scope of liability under the Jones Act. Forgione v. United States, 202 F.2d 249, 252 (3d Cir. 1953); Wade v. Rogala, 270 F.2d 280, 283 (3d Cir. 1959). Specifically, FELA § 51 provides that:
Every common carrier by railroad . . . shall be liable in damages ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.
45 U.S.C. § 51. The standard of causation under the Jones Act is therefore whether an employer’s negligence caused, “in whole or in *120part,” the seaman’s injury. Liability is broadly drawn and broadly construed, and is found, where the employer’s negligence played “any part, even the slightest in producing injury or death.” Ribitzki v. Canmar Reading and Bates, Ltd. P’ship, 111 F.3d 658 (9th Cir. 1997); Lies v. Farrell Lines, Inc., 641 F.2d 755, 771 (9th Cir. 1981) (citing Rogers v. Mo. Pac. R. Co., 352 U.S. 500, 506 (1957)); Hampton v. Magnolia Towing Co., 338 F.2d 303, 305 (5th Cir. 1964). This “slight” standard of causation is often called “featherweight.” Id.
We find that the dangerous condition wrought by the combination of a defective freezer and half-baked safety attempt at least in part caused Sardina’s fall, which, in turn, caused injury to Sardina. Specifically, we find that the impact to Sardina’s head caused him to have a cerebral concussion, and thus post concussion syndrome involving memory problems. The impact to his back caused cervical sprain, lumbar sprain, tarsal-tunnel syndrome on the right, foot and interdiskal disruption requiring back surgery. It is clear from the evidence that from the moment of impact, Sardina suffered.from intense and prolonged pain. The initial diagnosis by Dr. Pulau in New.Guinea, based on x-rays and later confirmed by CAT scans, and MRIs, clarifies that the fall caused a compressed disk in Sardina’s back. Dr. Laufenberg further diagnosed Sardina with a contused scalp and two herniated, bulging discs, in addition to cerebral concussion with po,st concussion syndrome, severe cervical sprain; lumbar sprain, and tarsal-tunnel syndrome on the right, resulting from the fall. The tarsal-tunnel syndrome was confirmed by Dr. Lasker. Dr. Richley further confirmed the extent of the back injury.
1. Degenerating Disc
Kassandra Z has raised some question as to whether the January 17, 1996, fall proximately caused the injuries to Sardinas spine, specifically the herniations in Sardina’s L3-4 and L4-5 disks. Specifically, it has brought forward the testimony of Dr. Raymond Vance, who stated that the herniations in the L3-4 region are actually the. cumulative result of aging and the degenerative effect of engaging in activities as stressful as riding in a fishing boat on pounding waves. Dr. Vance pointed to the CAT scan conducted 13 days after the January 1996, accident, and stated that it showed nothing but some wear and tear in the L3-4 region. Rather, it took sixteen months for the herniated disc to appear.
Kassandra Z also brought forth evidence of a slip-and-fall knee injury suffered by Sardina in October of 1982. Sardina had been ordered to scmb the engine room of the MJ Souza, and slipped on oil and grease, catching his knee and falling on his back. Medical records from that incident indicate that Sardina’s discs were already subject to degeneration not related to the accident but rather to regular aging. *121Specifically, x-rays dating October 15, 1982 showed some spurring of the L3-4 disk, and a CAT scan of October 29, 1982 showed diffuse contouring of the disk and mild degeneration. Although no significant back injury was diagnosed in 1984, only back strain not requiring surgical treatment, these medical records purport to show that the damage done to Sardina’s back was due to his own physical aging process and fishing lifestyle, and would have happened without the January 17, 1996 fall. In Dr. Vance’s view, the L3-L4 disk deterioration was not a result of January 1995 injury, but is rather a progressive injury, where the fall was the straw that broke the camel’s back. Dr. James Nelson, who examined Sardina at the request of Kassandra Z, further viewed the injury as an event that should only have taken 16 weeks to heal.
We view this theory of Sardina’s progressive spinal deterioration as valuable for showing only that Sardina may have been somewhat more susceptible to back damage from a slip and fall, especially a fall so severe that impact to the head caused unconsciousness. The theory does not, however, disprove the causative effect of the fall. Dr. Vance’s conclusions as to Sardina’s physical condition as of January 1996 are based on 1982 data. We therefore view it as speculative at best. We are satisfied by Dr. Richley’s explanation of Sardina’s condition as an interdiskal disruption, where a sudden, obvious accident caused mechanical injury by deforming the disk, which then gradually decayed and deteriorated in progressive stages. We accept Dr. Richley’s testimony to the effect that the water chemistry in the affected disk was rendered abnormal by the impact and ultimately caused the disk to bulge into the nerves. Dr. Richley described the disk pain as like a boil, which causes pain in the disk and nerves, is affected because it is inflamed, and can be disabling especially when the victim coughs or sneezes. Pain fibers grow into the disk, spreading the pain across the back and down the legs in the pattern of the nerve. The nerve slowly decays and displays only subtle changes, which Dr. Richley confirmed Sardina to have experienced in an MRI scan conducted in 1999. Regarding Dr. Vance’s assessment of the CAT scan performed after Sardina’s fall, we rather tend to agree with Dr. Richley’s statement: “Chemistry does not declare itself in 13 days.”
Given the evidence presented to this Court, and the “slight” standard according to which we are charged to consider it, we are convinced that the negligence of Kassandra Z in failing to maintain the ship in safe condition was a proximate cause of Sardina’s slip and fall that then resulted in disabling injuries to Sardina’s back, leg and foot, including disruptions of the L3-4 and L4-5 disks, as well as temporary damage to his memory capacity.
*122
2. Malingering
Kassandra Z has attempted to portray Sardina as an exaggerator of symptoms, as if his pain were not real and as if, in the words of Dr. Vance, the laser surgery affected on Sardina’s back functioned primarily as a “placebo” rather than as a surgically necessary experience. Specifically, Kassandra Z points out that Sardina’s condition changed over time. It further introduced neuropsychological testimony from Dr. Thomas C. Wegman regarding Sardina’s possible “malingering,” or propensity to exaggerate or lie about his painful condition.
Although there are bothersome points of inconsistency in Sardina’s testimony, especially regarding the fate of the missing flip-flop,4 we do not need to rule on his propensity to exaggerate given that the standard needed to prove proximate cause is only “slight.” Whether Sardina’s back pain was “stabbing” or “shooting” or “tickling” does not mitigate the finding that the dangerous condition aboard Kassandra Z caused well-defined, objective medical injuries and at least some period of immobilizing pain. Regardless of our subjective opinion of Sardina’s character and reliability, the objective medical evidence of disk degeneration, bulging, nerve compression, and of the causative physical impact of this accident is overwhelming.
C. Damages
We find, as a matter of fact, that the negligence of Kassandra Z in failing to maintain a safe working environment caused permanent injury to Sardina’s back which has impaired his earning capacity. Specifically, the injury caused limitations to Sardina’s physical condition which preclude him from returning to the tuna industry in general, in which he would have continued in his lucrative position as licensed master of a fishing vessel. Sardina’s future earning capacity before the injury is diminishable, however, by his probable future earnings in aviation. See, e.g., Senko v. Fonda, 384 N.Y.S.2d 849, 852-53 (N.Y. App. Div. 1976).
m. Computation of Economic Loss
Sardina brought forth the calculations of Robert Wallace, C.P.A. (“Wallace”), which were countered by Kassandra Z’s accountant, Dana Basney, C.P.A. (“Basney”). We have reviewed the assumptions and *123figures of each side, and our assessment of the various factors involved in computing special damages (lost earnings prior to trial), general damages (impairment of earning capacity, pain and suffering), and comparative negligence is summarized as follows.
A. Tuna Fishing
A threshold issue in determining damages is whether the back injuries, especially the disk herniations requiring back surgery, prevent Sardina from returning to a career in the fishing industry.
Kassandra Z argues that Sardina was not a career tuna fisherman in that he had “just as much” employment running cruise ships and Sea World vessels, rig tenders and car sales while he earned his master’s license, in addition to work in an Alaskan fishery. However, we are satisfied that Sardina’s work record indicates a sustained commitment to tuna fishing despite periods of other, temporary employments in industries both related and unrelated to shipping and maritime activity. Sardina consistently worked in tuna seiners, though not for more than two trips each, and earned his master’s license in 1985. We find that the wide variation in Sardina’s other employment activities when not fishing rather emphasizes his lack of commitment to any other profession but fishing, to which he repeatedly returned. Sardina’s procurement of a master’s license, with its correlative cost and effort, is further proof of his commitment.
Kassandra Z further points to the testimony of Thomas Adams, a helicopter pilot on Kassandra Z, regarding a conversational confession in which Sardina struggled with his choice to be a fisherman, and in which he stated that he wanted out of the industry. Rather than evidence Sardina’s lack of commitment given the overwhelming evidence of Sardina’s fishing and maritime experience, this testimony seems rather to indicate how bound Sardina felt to the profession. We regard it as a workaday fact that a person may every now and then fervently wish themselves in a different profession than the one they are in, especially during times of stress. We are satisfied that Sardina was a career fisherman, albeit perhaps not the most apt, impassioned or commercially successful one.
Kassandra Z raises the further argument that Sardina is not barred from returning to fishing after the December 1999 back surgery. We find otherwise. The physical requirements of being a master on a tuna seiner involve driving a fishing boat, making a set, pushing fish and nets, climbing ladders and engaging in other manual activity requiring dexterity, torsion and strength. It is clear from all medical testimonies that, because of his herniated disks, and even with back surgery, Sardina *124is not fit to continue his career as a fisherman. Although he is much recovered after the laser disk surgery in terms of no longer experiencing constant nerve pain, all medical testimony has convinced this court that Sardina is susceptible to pain and disk deterioration if subjected to the constant, rhythmic back pressures, the twisting, and the frequent and heavy lifting that is required of life on the seas as a fisherman.
We thus find Sardina to be precluded from returning to his career as a fisherman due to the January 17, 1996, slip and fall for which Kassandra Z is liable.
B. Captainship
A primary issue involved in computing the expected pay rate for lost earnings prior to trial as well as future earning capacity regards Sardina’s contention that, had he been able to remain in the fishing industry, he would have been elevated to the more profitable post of captain on a tuna vessel. We agree with Kassandra Z, that this assumption is logically and practically unfounded. Sardina may have held the requisite qualifications as a licensed master; however, this alone would not have been enough to make a captainship a probable opportunity for Sardina. Kassandra Z has proven that the labor market for fish captainships is extremely tight due to nepotistic and ethnically nationalistic tendencies in choosing captains, as well as the fact that the number of American vessels engaged in tuna fishing has declined drastically in the past decade. We further point to Sardina’s employment record for its lack of sterling consistency, and for the fact that his most recent employment was on the near-bankrupt, shoestring operation of Kassandra Z. We thus find Sardina’s claim to a captainship entirely improbable.
C. F.xpected Pay Rate,
An important factor for calculating Sardina’s pre-trial lost earnings as well as future impairment of earning capacity is what base salary to assume had he not been injured. Wallace examined the average tonnage caught by tuna vessels in the western Pacific over 4, 10, and 17-year periods ($87,930, $90,288, and $81,000, respectively), as well as the average of Sardina’s catch excluding 1992 ($63,784). Based on these four figures, he concluded Sardina’s earning capacity to be $70,000. He further projected that, at the higher captain’s rate, Sardina’s earnings’ capacity would have been between $136,000 and $155,000.
We have already found improbable Sardina’s claim to a potential captainship, and so we disregard these latter inflated figures. Furthermore, we reject the $70,000 estimate by Wallace as too speculative and erroneously inflated. Wallace’s indicators, upon which *125the $70,000 is based, reflect the average tonnage caught by each tuna boat in the western Pacific, a statistic which does not reflect the shrinkage in actual number of tuna boats in the western Pacific, nor the consequent limitation on the available spaces for fishermen to participate in trips. The statistic thus does not adequately represent Sardina’s particular circumstances, and cannot be considered a basis for forecasting his potential earnings.
Rather, we find that an average of Sardinia’s previous earnings constitutes an appropriate basis for calculating his potential salary. Therefore, we accept the figure offered by Basney of $61,159 per year, which is the average of Sardina’s annual income between 1990 and 1995, inflated to 1995 levels. This figure includes the lower 1992 income which was excluded by Wallace for reflecting Sardina’s vulnerability to the vagaries of the fishing labor market — a factor we find to be important and relevant in projecting potential income. The fact that this figure is lower than the average tonnage caught by tuna boats in the western Pacific further supports our findings that Sardina was not a fisherman on the “in”-track to a captainship, but rather that he was an outlier on the low-side of earnings, one of those unfortunates subject to the vagaries of labor demand in the fishing industry (especially the 1992 figure).
D. Benefits and Expenses
To determine Sardina’s pre-trial lost earnings, Wallace considered other variables such as food and FICA benefits and business expenses. His estimation was that the value of food received would average about $3,000 per year, that FICA benefits would be about $4,000 per year, and that Sardina would incur business expenses of about $3,500 per year. We find that the value of food and business expenses are legitimate concerns but variable, speculative, and close enough in value so as to cancel one another out for practical purposes. We accept Wallace’s addition of $4,000 in FICA benefits.
E. Social Security
We note that the figure used for Sardina’s expected earnings, $61,159, is derived from an average of Sardina’s adjusted gross income, from which Social Security payments appear to have already been withheld. We thus mle that social security taxes are not to be subtracted from Sardina’s expected earnings as was done by Basney in computations for Kassandra z.
F. Work Life Expectancy
Plaintiffs economist Wallace estimated that Sardina would have *126remained a tuna fisherman through the age of 60.8. He called this figure “conservative,” noting that the average retirement age of all fishermen who were part of Fisherman’s Union Pension Trust was between 62 and 63. In opposition, Basney bracketed the retirement ages for persons in the fisheries between 42 for those in the Bering Seas to the age of 62 listed in the Department of Labor statistics, and calculated future earnings based on the lower number.
We take into account Sardina’s increased susceptibility to back injury as indicated by the unfortunate disablement in this case, and by the report of Dr. Daniel P. Denenberg, which indicated a 1980 incidence of lower back pain and the serious slip and fall which occurred on October 11, 1982. The 1982 accident caused lower back and right knee pain, as well as post injury reports indicating “discogenic pathology,” in terms of a “decrease in the L3-4 disk space with anterior osteophytes” and “a bulge of the annulus at the L3-4 level.” Considering these indications of Sardina’s increased susceptibility to injury in the work environment of a tuna seiner, even had the January 1996 fall not occurred, we think it highly improbable that Sardina would have remained in the fishing industry until the age of 62, or even the age of 57 at which Captain Medina retired. Captain Medina did not have serious physical problems and even now, at the age of 74, has only some knee problems. Indeed, for these purely physical reasons, we find it improbable that Sardina’s physical health could have sustained working beyond the age of 52, which is the midpoint between 42, the Captain Ahab limit for strenuous work in the Bering Seas,5 and 62, the Billy Budd limit for the most able-bodied of seamen.6
We further note with particular interest Captain Medina’s testimony as to his four sons who were captains or chief engineers on his family boat who were forced to retire early due to the extreme competition in the fishing industry. We factor in the shrinking number of American fishing vessels that would further foreclose opportunities for gainful, sustainable employment. Finally, we note Sardina’s fluctuating employment with various vessels and trips, rather than continuous and dependable contract with one fishing company or another, which would further constrain Sardina’s employability in a tightening market. We believe the effect of these market forces would have counteracted Sardina’s employability as a licensed master and shown commitment to fishing, and would have further depressed Sardina’s potential work life by about five years. Due to physical and labor market constraints, therefore, we find that Sardina *127would have been able to work in the fishing industry for only twelve years beyond the age of 35, and retired at the age of 47.
G. T.ife Expectancy
Wallace indicated that Sardina’s life expectancy would be age 76.66; Basney calculated it to be 73.6 based on the 1980 Commissioners Standard Ordinary Mortality Table. No arguments were made as to the preference of one age or the other. We accept the number given by Basney, 73.6, because he has cited a recognized authority, and because we have found it to be confirmed on independent, judicially recognizable grounds. See, e.g., Nat’l Vital Statistics Reports, Vol. 47, No. 28 (1997).
H. Probable Future, Earnings
Sardina’s future earning capacity as a master on a fishing vessel is to be diminished by his probable future earnings in an alternate occupation. We find that Sardina is not foreclosed from other employment options, namely a career in aviation. Sardina holds an A.A. degree in flight operations, as well as several commercial licenses for several different aircraft. Since March 1999, he has done work as a ground instructor, while working on his flight instructor license. As of trial, Sardina was working four nights a week as a disc jockey and host in a karaoke bar, earning $8 per hour or $500 per month. He was also working as a flight instructor billing 10 to 15 hours a week, sometimes 20, at $18 per hour.
Plaintiffs vocational rehabilitation consultant Robert Hall, a professor at San Diego University, ran a battery of vocational skills tests on Sardina. He affirmed that the physical work restrictions described by Sardina’s medical records preclude him from returning to work on fishing boats. He further testified as to Sardina’s ready employability in a number of occupations other than the fishing industry, including the aviation industry and jobs involving the management skills of planning, organization, detail, interpersonal skills, paperwork and other administrative tasks. Because of the part-time nature of flight instmctorship, Hall estimated that Sardina could make approximately $36,000 per year maximum from flight instructorship.
Dr. Edward Werkman, plaintiffs witness, a rehabilitation counselor, further testified to Sardina’s ability to pursue a successful career in aviation. Dr. Werkman projected that the beginning of such a career would net $25,000 to $30,000, but that within five years, Sardina could be earning around an average of $60,000.
We take these two vocational expert testimonies into account. We further consider Sardina’s mental capabilities as evidenced in his *128purportedly earning straight A’s in community college, as well as meeting the various licensing requirements, from the navigational and astronomical aspects of the master’s license to the technical and practical detail required for flight and instructor licenses. We note, moreover, that compared to the limited, market-dependent, tightening labor market in the fishing industry for masters positions, the aviation industry proffers not only more positions — more than 350,000 by defendant’s probably exaggerated estimates — but also more opportunities for learning and advancement. We also recognize that Sardina has begun this new career at mid-life, and so is not privy to the steeper upward trajectory of initial entrants to any labor market. We thus accept the average of Hall and Werkman’s highest estimates, or $48,000, as the average expected salary for Sardina.
I. Inflation and Present Value
Plaintiffs economist Wallace seems to account for present value in his calculations of future expected earnings, but he presents only a final figure without having made his method or amount transparent to the court. Defendant’s economist Hall has adjusted for inflation at 4%, and for present discount value at 6%. The question thus arises as to whether and how to account for the economic effects of inflation and present discounting.
We know of only two previous opinions of this Court which explicitly discuss discounting to present value for tort awards. In Fa 'avae v. Am. Samoa Power Auth., this Court first, rather informally applied the policy of present discounting and inflation adjustment. 5 A.S.R.2d 53, 57 (Trial Div. 1987). Fa'avae assumed an interest rate of 6%, and applied cogent inflation to reach an “intuitively” correct figure. Id. at 57. We quote the language of the opinion here to emphasize the thoughtful, though seemingly extemporaneous manner way in which the Court applied its logic:
[W]e will say that $25,000.00 is the financial loss that the (plaintiffs) suffered; however, it’s more complicated than that because you’ve got to figure out the future discounted value of $25,000.00. I have checked A.L.R. Proof of Facts, which I thought would be good for something, which doesn’t even turn out to be good for this; because all it tells is a whole lot of different mies about discounts depending on interest and inflation rates and depending on things like that. The figure that seems intuitively correct to me keeping in mind the facts that $1,000.00 isn’t going to be worth $1,000.00 25 years from now and that it’s not as simple as how long it takes the money to reach a certain amount at a specified interest rate assuming *129an interest rate of six percent, which is what there is now, and assuming inflation of about what there is now, our best estimate is that the present discounted value of $25,000.00 or its real dollar equivalent in the future years is about $16,000.00. So we will award $16,000.00.
Fa'avae, 5 A.S.R.2d at 56-57. The Court further invited both parties to submit statistics tending to invalidate the calculation. It went on to say:
Obviously, if either party has statistics suggesting this calculation is wrong he can move for reconsideration or new trial and we’ll be more than ready to entertain that sort of evidence. Since there wasn’t any evidence, we’re going to make the estimate that it’s $16,000.00.
Id
A later opinion by this Court has interpreted this language by reading the Fa 'avae Court’s invitation for further statistics to imply that the Court was “dissatisfied with this conclusion” regarding present discounting. Clifton v. Voyager, Inc., 29 A.S.R.2d 80, 98 (Trial Div. 1995). The invitation supposedly demonstrated the “meager confidence that the court felt in making that ruling.” Id. The Clifton Court then refused to discount for present value, and further closed the door opened by Fa 'avae to the hearing of further evidence on the issue. It stated that, “where defense counsel has neither asked for reduction nor presented the relevant facts for such a reduction, we will not reduce an award for present value.” Id.
Fa'avae, delivered orally from the bench by Chief Justice Rees, was conversational but not controversial. It espoused a clear judicial policy based on fairness and practical logic, of taking present value and inflation into account whether by judicial notice, considered adjudication, or later submission of evidence. Clifton may seem to have contradicted but did not repudiate this practice. That opinion rightly declined to discount where it had not been requested, and refused to give the parties a “second bite at the apple” where they failed to present evidence at trial. Clifton, 29 A.S.R.2d at 99.
We uphold the precedential practice of Fa'avae in rendering the true value of an award. We base this decision on plain economic logic and a sense of fairness. See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 538 (1983).
We previously applied a 3% present discount value without comment, where it was presented by plaintiffs accountant. Tedrick v. Masania'i, 2 *130A.S.R.3d 120, 130-31 (Trial Div. 1998). Further, the legislature has approved a clear, workable method for determining a trae value amount in worker’s compensation cases.7 A.S.C.A. § 32.0666. The statute does not apply to personal injury tort awards; however, that legislative course may, in our view, be fairly applied by analogy in discounting lump-sum future payments in tort awards to present value adjusted for inflation. That is, where a plaintiff is compensated for a future loss, the award may be reduced to its present value by a 3% rate of interest compounded annually, which rate shall be deemed to reflect the true value of dollars, including inflation. Such policy reflects both fairness as well as the pressing need for judicial efficiency.
We direct the parties to recalculate the past loss and future impairment of earnings of Anthony Sardina to account for these findings and conclusions. Calculations are to be made clearly and transparently for the court in table form, such that all steps in the accounting process are apparent. Submissions made without proper transparency will invite suspicion and disfavor.
IV. Pain and Suffering
We find it appropriate to award noneconomic damages to Sardina for the loss of enjoyment of life, and pain and suffering.
The scale of damage awards in American Samoa ranges from fairly mild injuries for which plaintiffs receive around $10,000 for pain and suffering, to the most serious and painful of injuries which rarely result in awards over $50,000. Moors v. Am. Samoa Gov’t, 19 A.S.R. 2d 67, 69 (Trial Div. 1991). On the higher end of the spectrum of awards awarded by this Court, we have awarded $80,000 to a man run over by a forklift, who suffered from facial lacerations, contusions, a crashed rib cage, and fractures of the eye socket, femur and pelvis. Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146, 150 (App. Div. 1988) (1986 figure prior to decrease for plaintiffs negligence). In Kim, the Appellate Court of American Samoa discussed the fact that general damages awards may be justifiably lower than courts in most American jurisdictions, though higher than in other Pacific jurisdictions. It stated, “[t]he disparity from place to place is accounted for by many factors, including variations in *131the amount of goods and services that money can buy and in social attitudes toward pain.” Kim, 8 A.S.R.2d at 151.
More recently, in Masania’i, the Court awarded $100,000 in general damages, including pain and suffering. 2 A.S.R.3d at 130. In deciding on this amount, the Court considered plaintiffs past and present circumstances, including the fact that the plaintiff, previously a gainfully employed police officer, was rendered unable to care for himself. The Court also considered his bleak prognosis, uncertain fixture, and multiple debilitating injuries. Id. In Gibbons v. American Samoa Government, 5 A.S.R.3d 49, 70 (Trial Div. 2001), we awarded a rape victim $100,000 for pain and suffering, where plaintiff was rendered entirely dysfunctional, unable to return to her career as a lawyer, do any other kind of work, or have normal relationships with people. For Jones Act and unseaworthiness claims in 1995, we awarded a seaman with incurable carpal tunnel syndrome, who suffered from lack of sleep, pain and nxxmbness, $50,000 for pain and suffering. Clifton, 29 A.S.R.2d at 99.
Sardina is unable to return to a career as a fisherman, and suffered post concussion syndrome and back, leg and foot pain as a result of his fall. However, after his December 1999 laser surgery, Sardina is now fit enough to assume any number of occupations, no longer experiences debilitating pain in a daily sense, and appeared at trial to be quite healthy, good-humored and robust. He is fully able to care for himself, work and enjoy leisure. He must, however, practice caution with regards to the disks in his back, which remain vulnerable to collapse. Compared to the other plaintiff victims who have appeared before this court, Sardina appears to be one who has fortunately emerged from his injury well enough to care for himself. Though he may not be able to enjoy extreme sports, Sardina is certainly not precluded from enjoying life. We have also taken into accoxmt the extended duration of severe pain and grief endured by Sardina until he was finally relieved by the surgery of December 7, 1999, an operation which the defendants had steadfastly refused to fund him. We award Sardina $45,000 for noneconomic damages.
V. Comparative Fault
We have found Kassandra Z to be liable for the unreasonably dangerous floor condition that caused Sardina’s injuries. We find, however, that Sardina himself was partially at fault for his fall. Under the Jones Act and the law of unseaworthiness, contributory negligence, however gross, does not bar recovery but only mitigates damages. Johnson, 845 F.2d at 1355; see also Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 431 (1939). A trial court’s allocation of percentages of *132fault is a finding of fact and will not be disturbed unless clearly erroneous. Johnson, 845 F.2d at 1355.
A. Primary Duty Rule
Sardina was the licensed officer on board the Kassandra Z. As master, Sardina was the safety officer responsible. for correcting unsafe conditions. There is thus some issue as to whether Sardina himself was responsible for the unsafe condition giving rise to his own injury.
Under the primary duty rale, a “seaman-employee may not recover from his employer for injuries caused, by his own failure to perform a duty imposed on him by his employment.” Bernard v. Maersk Lines, Ltd., 22 F.3d 903, 905 (9th Cir. 1994) (citing California Home Brands, Inc., v. Ferreira, 871 F.2d 630, 836 (9th Cir. 1989)). This rale is based on the employer’s independent right to recover against an employee for nonperformance of a duty which resulted in damage, to the employer, which right offsets recovery based on the employer’s liability to that employee for failure to provide a safe place to work. Dixon v. United States, 219 F.2d 10, 16 (2d Cir. 1955). Where the employee consciously assumes a duty toward the wrongdoer as a term of employment, failure of this duty results in a bar to any recovery under the Jones Act. Clifton, 29 A.S.R.2d at 91. Application of the primary duty rale is, however, limited by the three principles enunciated in Bernard:
First the “primary duty” rale will not bar a claim of injury arising from the breach' of a duty that the plaintiff did not consciously assume' as a term of his employment. Second, the rale does not, apply where a seaman is injured by a dangerous condition that he did not create and, in the proper exercise of his employment duties, could not have controlled or eliminated. Third, the rale applies only to a knowing violation of a duty consciously assumed as a term of employment.
22 F.3d at 905. Under these principles, Sardina would be barred from recovery if he (1) consciously assumed a duty to insure the safety of the ship as a term of his employment, (2) is injured by a condition he created and could have controlled and eliminated, and (3) knowingly violated his duties.
We find that Sardina is not subject to the primary duty rule because he did not create the hazardous condition that injured him. The wetness of the floor upon which Sardina slipped was clearly caused by condensation due to the defective freezer door, and not by Sardina.
Further, it has not been proven that Sardina knowingly violated his consciously assumed duty to safeguard the ship. As master of the vessel, *133Sardina was required to inspect the vessel when he came aboard on December 21, 1995. He did so, and in his testimony and report did not, at that time, notice any problem with the freezer. It also appears that although as master, Sardina was charged to address safety issues where he was notified or made aware of them, the detailed inspections and repairs were rather the primary duty of the chief engineer. Sardina testified that he was not aware of any complaints or accidents of slippage or wetness in the freezer area, and as such, we cannot hold him in violation of his official duties.
B. Officer at Fault
Though Sardina is not entirely precluded from recovery by the primary duty rule, we find that his deficiencies as a safety officer render him partially at fault for his fall. The Marine Safety Manual states that
[I]t is the duty of the vessel’s officers to see that dangerous conditions are corrected immediately. . . It is of paramount importance that general safety considerations are kept in mind aboard vessels at all times. When hazards are noted, immediate steps shall be taken to keep working conditions as safe as reasonably possible.
(Ex. P.) Sardina claims to have failed to notice the hazards of having a floor half-covered in non-skid strips, perpetually wet because of condensation. Either Sardina’s testimony is incredible, or else he acted incompetently as an officer of the ship. Sardina lived and worked on the vessel for one month and traversed the passageway at least three times per day. The wet terrazzo freezer area obviously contrasted with the long run of black safety strips preceding it. Six individuals had fallen in the same location previously. In diligent, proper exercise of his duties, Sardina should have noticed, and could have controlled the slipperiness through such inexpensive, makeshift, and easy fixes such as, for example, placing plywood over the area as has been done since the accident. Sardina’s sheer insensitivity to hazardous conditions is excused from sanction by the primary duty rule. We find, however, that Sardina’s failure to notice much less investigate and repair the slippery floor constitutes a partial failure of the official duty of an officer to insure the safety of the ship, and that this failure contributed to his mishap.
C. The Missing Flip-Flop
We further find Sardina at fault because he was wearing what he calls “shower shoes,” commonly known as “flip-flops,” when he fell. We are sufficiently convinced by experience and evidence that Sardina’s choice to sport flip-flops, which have nothing in the way of laces or braces to *134maintain stable support in wet conditions or on slippery surfaces renders him partially at fault for his fall.
Captain Medina testified that flip-flops are troublesome in a maritime environment, where floors are constantly wet and likely to be slippery. He also testified that he did not allow them on any of the vessels he oversaw in his 20 years’ of experience as fish captain. This Court accepts Captain Medina’s testimony as to the inappropriateness of flip-flops in the generally wet environment of a fishing vessel.
The High Court holds jurisdiction over a lone United States territory in the Neotropical South Pacific. The flip-flop has long been a staple of modem Samoan living. It rains here often. It squalls and it storms. Puddles are bountiful. Flip-flops provide no lateral support, no heel or catch, no velcro, nor laces to anchor the ankle in wet conditions. Extreme caution is engendered in all, from young to old, who choose to wear flip-flops rather than walk barefoot in our world of water.
Sardina chose to wear flip-flops. This exacerbates his fault because of his ill-considered choice of footwear, and because as safety officer, he set an example for the ship’s crew. It has been shown that, when not working, Sardina’s men wore lace-up deck shoes to minimize the probability of accidents such as this one. Sardina chose a more dangerous shoe, slipped in precarious conditions, and must bear some blame for the consequence of that choice. Put in legal terms, we find that Sardina’s oversights as safety officer and his choice to wear unsafe footwear also contributed to his injuries.
We review the primary duty rule, Sardina’s status as master, and his choice of footwear and assess him 40% of the blame for the fall.
VL Maintenance and Cure
Sardina also brings a suit to enforce liability under maintenance and cure, an ancient doctrine of maritime law arising from an implied provision in the contract of marine employment, whereby a shipowner pays for any injury or illness which manifests during employment, regardless of the source of the injury or whether it preexisted the journey, so long as there was no willful misbehavior on the part of the seaman. Clifton, 29 A.S.R.2d at 100; Vella v. Ford Motor Co., 421 U.S. 1, 4 (1975); Laruitzen v. Larsen, 345 U.S. 571, 574 n.3 (1953). The purpose of the maintenance and cure obligation is to protect the health and safety of seamen, and to encourage them to enter such employment. Vella, 421 U.S. at 4.
The right of a seaman to recover under the Jones Act, and his *135right to maintenance and cure, under admiralty law, are independent and cumulative. Garrett v. Moore-McCoramack Co., 317 U.S. 239, 240 n.2 (1942); Koehler v. United States, 187 F.2d 933, 937 (7th Cir. 1951); McKinley v. Carnegie-Illinois Steel Corp., 69 F. Supp. 893, 894 (W.D. Pa. 1947). Where negligence is found against an employer by a plaintiff seaman under the Jones Act, it supplements but does not supplant further remedies for maintenance and cure. Mahramas v. Am. Export Isbrandtsen Lines, Inc., 475 F.2d 165, 169 (2d Cir. 1973). In contrast to remedies given by the Jones Act, the liability of a shipowner for maintenance and cure of a sick or injured seaman exists irrespective of fault or negligence on the part of the shipowner or his agents. Mudspeth v. Atl. & Gulf Stevedores, Inc., 266 F. Supp. 937, 944 (D. La. 1967).
Maintenance and cine obligations arise when a seaman becomes disabled through no fault of his own while in service of the ship. Gooden v. Sinclair Ref. Co., 378 F.2d 576, 579 (3d Cir. 1967): The only requirement for eligibility is that the seaman be “in the service of his ship” at the time of the injury. Clifton, 29 A.S.R.2d at 100. Sardina was indisputably in the service, of Kassandra Z when- he slipped, fell, and received injuries to his back-and head. He is thus entitled to maintenance and cure benefits.
A. Maintenance
Maintenance, while being cured, takes the place of the seaman’s sustenance on the ship. It has been defined as “compensation for room and board expenses incurred while the seaman is recovering from illness or injury.” Berg v. Fourth Shipmor Ass’n, 82 F.3d 307, 309 (9th Cir. 1996). Some evidentiary proof must be offered regarding the seaman’s actual expenditures or actual liability incurred for maintenance and cure. Norris, Martin J., The Law of Seamen § 26:35 (4th ed. 1985).
No evidence or testimony has been submitted regarding actual or constructive living costs incurred while Sardina was under treatment. Sardina merely informs us that TCW Credits paid maintenance at $20.00 per day through December 4, 1996, and argues that he is entitled to the same per diem. Sardina also testifies that he lived with his parents, free of rent and food costs.
We quote the Fifth Circuit, which stated:
Our exhaustive research of the case law in this circuit has revealed no case which has awarded a “going rate” of maintenance to a plaintiff who has failed to submit evidence of his costs. A seaman’s burden of production in establishing the value of his maintenance is feather light: his own testimony as *136to reasonable cost of, room and board in the community where he is living is sufficient to support an award. Because the evidence before the court often consists solely of the seaman’s testimony, it is common for courts to award a standard per diem. Standardized rates of maintenance, however, do not dispense with the requirement that a plaintiff-seaman provide the trier of fact with an evidentiary basis upon which to determine a justifiable amount.
Yelverton v. Mobile Lab., Inc., 782 F.2d 555, 558 (5th Cir. 1986); see also Springborn v. Am. Commercial Barge Lines, Inc., 747 F.2d 89, 94 (5th Cir. 1985). Sardina did not testify as to his actual living expenses. Without a factual basis, we are precluded from granting an award of maintenance.
The only testimony offered by Sardina regarding his living situation was that he lived rent-free with his parents for some time while recuperating from his injury. While living with parents and not incurring actual expenses or liability for care and support, some courts have held that a seaman is not entitled to a decree of maintenance based on the fact that he incurs no actual expense or liability for his care and support. Norris, Martin J., The Law of Seamen § 26:36. Thus, we find the record insufficient to award maintenance benefits to Sardina based on his failure to submit evidence as to his actual expenses, as well as the fact that he lived with his parents without liability during his recovery.
B. Cure
The vessel owner is also obliged to pay medical expenses of the seaman until he reaches maximum recovery or until the disease or illness is recognized as “incurable.” Vaughan v. Atkinson, 369 U.S. 527, 531 (1962); Vella, 421 U.S. at 5; Farrell v. United States, 336 U.S. 511, 515 (1949).
Expenses of the cure are those actually incurred by the seaman, and his recovery is limited to the amount actually expended or liability actually incurred. Norris, Martin J., The Law of Seaman § 26:36. Medical bills for treatment of Sardina’s head and back injuries until March 8, 2000 have been submitted amounting to $34,221.27, including all bills related to Sardina’s laser surgery and $1,200 for surgery to the L3-4 disks that TCW Credits claims was not the result of the fall. Only the $1,200 for surgery to the L3-4 disks is contested. We are not convinced that the damage to the L3-4 disks is separable from Sardina’s other back damage, given the controverting testimonies, and find Sardina deserving of medical bills totaling $34,221.27.
*137TCW Credits has already made a partial payment toward Sardina’s medical bills of $15,801.21. Sardina is thus owed a remaining balance of $18,420.06.
1. Future Fusion Surgery
There is a further issue of whether Sardina has yet reached the point of maximum cure at which defendant’s obligation to pay maintenance and cure ends. Farrell, 336 U.S at 515. Maximum cure is achieved when it is probable that further treatment will result in no betterment of the seaman’s condition. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 530 (1938).
Dr. Richley has stated that though Sardina was discharged by Dr. Laufenberg on March 8, 2000, Sardina still has an 85% chance of future fusion surgery, costing about $30,000, since the L5 disk is right above the pelvis and at risk of stress. Dr. Vance, however, estimated that less than half of those receiving back surgery require two operations, which statistic decreases significantly over time. Based on the fact that Sardina showed no deterioration a year past surgery, we accept Dr. Vance’s opinion that future fusion surgery is not needed for Sardina.
We find, as a matter of fact, that Sardina reached a point of maximum cure on March 8, 2000, the date at which Dr. Laufenberg deemed Sardina fully recovered and discharged him. The fact of Sardina’s recovery is further underscored by Dr. Richley’s having released him from care shortly thereafter, on April 10, 2000, after finding there to be no nerve damage or leg pain which might indicate need for observation for imminent collapse or further medical intervention. We have been presented with no objective medical evidence or report as to the need for fusion surgery for improvement of Sardina’s physical condition. Dr. Richley and Dr. Laufenberg both declared him fit and as far as possible, free of pain. Any future surgery at this point is simply speculative. Where it appears that further treatment will merely relieve pain and suffering and not otherwise improve physical condition, it is proper to declare the point of maximum cure. See, e.g., Simmons v. Hope Contractors, Inc., 517 So. 2d 333, 339 (La. Ct. App. 1987). Where such future treatments are entirely speculative, seamen are not entitled to payments for cure. Flower v. Nordsee, Inc., 657 F. Supp. 235, 236 (D. Me. 1987).
We thus find that Sardina reached maximum recovery on March 8, 2000. Any future need for medical treatment appears, based on all evidence presented, too speculative to merit payment for cure,
*138C. Attorney’s Fees
Sardina claims that he is entitled to an award of attorney’s fees based on the allegation that Kassandra Z has willfully failed to pay maintenance and cure.
The shipowner’s failure to meet the maintenance and cure obligation may result in liability for consequential and incidental damages, including the “necessary expense” of attorney’s fees, where employers are “willful and persistent” in their “recalcitrant” refusal to pay maintenance and cine, where they are “callous in their attitude, making no investigation of libelant’s claim and by their silence neither admitting nor denying it.” Vaughan, 369 U.S. at 530; see also Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495, 1501 (9th Cir. 1995); Morales v. Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir. 1987); Hines v. J.A. Laporte, Inc., 820 F.2d 1187, 1190 (11th Cir. 1987). The Fifth Circuit has identified examples of willfulness meriting punitive damages and counsel fees, including:
(1) laxness in investigating a claim;
(2) termination of benefits in response to the seaman’s retention of counsel or refusal of a settlement offer; [and]
(3) failure to reinstate benefits after diagnosis of our ailment previously not determined medically.
Hines, 820 F.2d at 1190 (citing Tullos v. Resource Drilling, Inc., 750 F.2d 380, 388 (5th Cir. 1985)).
We find that the shipowners of the Kassandra Z were willful and persistent in their failure to recognize, investigate or pay for Sardina’s cure. Kassandra Z clearly failed to pay Sardina despite having received notice of Sardina’s accident, up-to-date medical reports and expense amounts, and recommendations to remit payments for cure, all from Arnold and Arnold. The vessel owners also seem to have received letters from Sardina’s attorney as early as August 1996, regarding Sardina’s need for maintenance and cure payments. Especially determinative in this regard are Sardina’s numerous unheeded applications for payment of medical bills, especially for the necessary, curative back surgery that did not occur until four years post-accident. Such callous lack of investigation and silence in response to injuries incurred by a seaman in that ship’s employ is precisely what the U.S. Supreme Court in Vaughan found to render plaintiff-seaman’s attorney’s compensatory fees. Financial difficulties on the part of Kassandra Z do not excuse its failure to respond to, much less attempt to address, Sardina’s right to maintenance and cure without having to resort to the laborious, complicated, and resource-draining process of law.
*139We thus award attorney’s fees on the amount of 50% of Sardina’s award for maintenance and cure.
Order
1. For Kassandra Z’s unseaworthiness and negligence, we award to Sardina lost earnings prior to trial, lost future earnings for impairment of earning capacity diminishable by probable future earnings in aviation, and $45,000 for pain and suffering. This award is to be recalculated according to the following findings of fact:
a. Sardina is physically unable to return to a career in fishing;
b. Sardina would not have been a captain; <T
c. His base salary would have been an average of $61,159 per year; p
d. Pre-trial lost earnings should be adjusted to account for $4,000 in FICA benefits;
e. Social security taxes are not to be subtracted from Sardina’s expected earnings in aviation;
f. Sardina’s work life expectancy is 47;
g. Sardina’s life expectancy is 73.6; CTQ
h. Sardina’s probable future earnings are an average of $48,000 per year; fcr*
i. The lump sum of future compensation payments to Sardina is to be discounted to present value and adjusted for inflation, at 3% true discount compounded annually.
Sardina is to receive 60% of the resultant sum.
2. We award to Sardina $18,420.06 for maintenance and cure.
3. Due to Kassandra Z’s willful failure to meet maintenance and cure obligations, we award Sardina 50% of the maintenance and cure award, or $9,210.03, in attorney’s fees. The recalculations due from the parties shall be filed within 20 days of date hereof.
It is so ordered.
The evidence indicates that the Kassandra Z shipowner had long ceased to respond to officers’ requests and notifications for parts, repairs and paint. It is uncertain whether more nonskid strips were specifically requested.
Post-concussion syndrome occurs when high impact to the back of the head causes problems to complex attention functions and mental processing, including memory problems but not brain damage.
The parties’ efforts to demonstrate whether and how much the terrazzo deck floor was slippery, and whether and how much it was rendered more slippery by water, provided an entertaining diversion to an otherwise tedious proceeding. Plaintiffs expert, Captain Kenneth Franke, produced a spring scale to unsteadily drag a weighted rubber boot and then a flip-flop across a simulated floor surface. Defendant’s expert, David Snow, carted a heavy piece of laboratory equipment, a “Brungraber Portable Articulated Strut Slip Tester,” from Seattle, Washington, to demonstrate decimal point precision, but to the same unimpressive effect. Both parties then sought to undermine the full applicability of the other’s test according to treatises, custom, basic physics, and logic.
“Science” may render a level of objectivity in particular settings, such as tests for blood alcohol content level, or calibration of instruments for critical engineering measurements in the airline or-automobile industries. However, after hours of debate, the experts in this case have merely *118managed to quantify what is general knowledge and common sense, at least in Samoa where rain is frequent and often in torrential downpours. Simply put, all they have proved is that floors are slippery when wet, and all surfaces can get wet enough to slip on. It is not for the court to establish an objective numerical standard of “reasonableness,” at which a wet floor of a certain construction suddenly moves from safe to unsafe status. Rather, we look at the particularities of this case to determine whether the walkway floor was reasonably safe. As stated in Matson Nay. Co. v. Hansen, 132 F.2d 487, 488 (9th Cir. 1942), the test of “reasonable safety” is not absolute but relative, and varies with prevailing conditions.
Sardina testified in trial that he did not know what happened to the flip-flop, but stated that he had worn them out and threw them away. Later credible testimony by Captain Medina contradicted Sardina’s account. Sardina’s attorney had possession of the flip-flop and had, in Sardina’s presence, shown it to Captain Medina.
Herman Melville, Moby Dick (Reissued ed., Penguin Classics 1992) (1851)
Herman Melville, Billy Budd (Reprinted, Mass Market Paperback 1992) (1924).
Specifically, discounting for the future value of lump-sum awards is a practice treated by the legislature of American Samoa in A.S.C.A. § 32.0666, which mandates present discounting for workers’ compensation lump sum awards. This provision requires that employer liability “be discharged by the payment of a lump sum equal to the present value of future compensation payments commuted, computed at 3% true discount compounded annually.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486700/ | OPINION AND ORDER
Plaintiff Construction Services of Samoa, Inc., (“CSS”) filed a complaint praying for a permanent injunction to (1) restrain defendants Sila Poasa (“Poasa”) and Tony’s Construction from using the assets and equipment of CSS, (2) return all assets and equipment to CSS, and (3) pay costs and attorney’s fees. Defendants Poasa and Tony’s Construction filed and answer and counterclaim for specific performance of an agreement dated March 29, 2000 (“the agreement”), addressing, among other things, the division of assets and liabilities between CSS and Tony’s Construction. Plaintiffs argue that the agreement is void for lack of consideration.
Findings
The evidence presented in this case consisted of the uncertain, contradictory, and overtly conflicting testimonies of Mora Mane, Sallie Mane, and Sila Poasa along with a profound lack of documentary submissions to clarify or at least mitigate the resultant confusion. From this befuddlement, we look for the facts.
*142A. The Business of CSS
CSS is a company engaging in the business of construction. Mora and Sallie Mane claim to have founded it in December of 1996. According to their testimony, Mora Mane and his friend Peter Larsen (“Larsen”), a purported engineer who now lives in Hawaii, incorporated CSS in July of 1997. Named on the Articles of Incorporation as original board members are Peter Larsen, Sallie Mane, and Jeanette Sili (“Sili”), daughter of defendant Sila Poasa. Since its incorporation, CSS has failed to conduct itself as corporations are wont to do under the statutory requirements for corporate entities accorded by Title 30 of the American Samoa Code. There was no organizational meeting of incorporators, nor bylaws adopted, nor stock certificates issued. See A.S.C.A. §§ 30.0118, 30.0119; Donald Export Trading Co. v. Toko Groceries Distrib., Inc., CA No. 13-77, slip op. at 4 (Trial Div. 1979) (Order Denying Motions For Summary Judgment, entered May 18, 1979). There were no guidelines fixing the number of directors or manner of their election. See A.S.C.A. §§ 30.0140 and 30.0141. Further, CSS failed to maintain books of account of business transactions, nor even a “stock book containing all the names of all persons who are stockholders of the corporation, their interests, the amount paid on their shares and all transfers thereof,” pursuant to A.S.C.A. § 30.0160. Receipts and records appear to have been left in utter disarray until retroactively recorded and interpreted by accountant Victor Stanley in 1999 for tax purposes. The corporate status of CSS was, in fact, a fiction.
B. The Involvement of Sila Poasa
Defendant Sila Poasa joined CSS in June of 1998 as general manager of that company, whether by board appointment or simple agreement between the Manes and himself, we cannot determine. Previous to that time, from 1997 until about March of 1998, he worked lull-time as a Safety Health Supervisor at Star-Kist cannery. Poasa worked as a general manager for CSS for about six months, between June and January of 1999, when he became “president of the company,” a title confirmed by the Manes and Poasa in their testimonies before the court. Again, there is no solid evidence aside from contradictory testimony to confirm whether this ascension occurred by board resolution or by simple agreement. Thereafter, Poasa and Sallie Mane, who calls herself the “secretary-treasurer” of CSS, became dual signatories on annual tax returns and on the two checking accounts held by Bank of Hawaii in the name of CSS. Before that time, Sallie Mane and Jeanette Sili were the two signatories on the accounts. Both Poasa and Sallie Mane drew biweekly salaries from CSS. It is uncertain and contested by both parties the extent to which Larsen and Sili were actually involved in CSS. For example, Poasa claims that his daughter handled administration and *143letters for CSS as secretary of the company even while attending school in Hawaii, where she would, incredibly, complete payroll and fax it back. Mom and Sallie Mane, on the other hand, testify that Sili’s appointment constituted only nominal deference to their friendship with Poasa, and represent her work as sporadic, inconsistent and noncommittal. What is certain, moreover, is that Sili and Larsen appear to have completely withdrawn from any involvement in CSS by March 2000, if not much earlier. They were not “removed” from their directorships by any formal process, but rather seem to have simply lessened their involvement over time due to geographical circumstance.
By March 2000, the principal decision-making powers of CSS resided in three persons: Mom Mane, who was unpaid and titleless ostensibly so as not to decrease disability payments from the U.S. Marine Corps for back injury; Sallie Mane, secretary and treasurer; and Sila Poasa, president and co-signatory on the CSS bank accounts.
C. Ownership of CSS
Due to the lack of records noted above, no documents exist as to the stock ownership of CSS. Plaintiffs did enter one document, Exhibit 1A, entitled “Initial Capitals to Start C.S.S. Operation,” but this does not evidence capitalization despite its misleading title. It is, rather, a retroactively written list of items of uncertain meaning, including “Housing rent collected” and “Mr. Mane Reimbursement for expenses rendered.” Unexplained, undated, and insufficiently annotated, we find it to be insufficient proof of capitalization. We have thus only the testimonies of the Manes and Poasa to determine the ownership of CSS. On the one hand, the Manes testify that they initially capitalized CSS with between $20,000 and $55,000 drawn from M.S.M., a sole proprietorship owned by Sallie Mane, Mora Mane’s 401K investment, and joint savings. They further claim to have invested an additional $50,000 by December 31, 1998. The Manes claim that Poasa invested only $250 when CSS was first incorporated, and that he contributed about $5,000 thereafter, which has been more or less repaid. On the other hand, in addition to the undisputed initial $250, Poasa claims to have contributed $70,000 between December 10, 1997, and December 31, 1998, which was not repaid. Without further documentation, testimony or other evidence for weighing the accuracy of these assertions, we are unable to render a specific finding of exactly the extent to which the Manes and Poasa share ownership of CSS, beyond the finding that both had something of an ownership interest in CSS through both cash and/or labor contributions.
*144D. The Fall-Out
It is clear that Poasa and the Manes were close friends who entered into a business relationship that went sour. Accounts differ as to the causes and events leading up to the deterioration of the relationship and the signing of the agreement partitioning the assets and liabilities of CSS, but in any case, by March 29, 2000 all three agreed that Poasa would leave CSS. The Manes and Poasa deeply disagree as to how the agreement dated March 29, 2000, came about. According to tire Manes, Poasa was notified by letter and did attend a March 9, 2000 meeting to remove him from the position of president of CSS. They state that Poasa did not agree to his removal, and in his anger, threatened to prevent CSS from obtaining government contracts. Poasa then directed a CSS engineer to prepare an agreement, and stated that he would resign from CSS and start his own company, Tony’s Construction.
On or about March 29, 2000, the Manes testify that they met with Poasa at Krystal’s Restaurant at the Pago Pago International Airport. Sila allegedly presented the agreement at that time, and begged and cried from 8:30 to 1 p.m. for Mora Mane to sign the agreement. Mora Mane said he steadfastly refused to sign the agreement due to CSS’s liability to other vendors, but ultimately caved in due to pressure from Sallie Mane, who told him “to please do this because I didn’t want to see us part like that.”
Poasa contests this version of events, but his testimony is confusing and inconsistent. At one point, he testified that the “owners” of CSS met on March 9, 2000, and again on March 22, 2000, to “iron out some of the problems we faced during that time frame,” but that at neither time was his removal as president discussed or voted upon. At a later point, however, Poasa testified that he and the Manes discussed the break-up of the company on March 9, March 17, April 4, and April 5, 2000.
Poasa also testified that he negotiated the agreement with Mora Mane on March 23, 2000, at which time they agreed that, in order to maintain the friendship, they would split the company in half. He claims to have left a draft of the agreement on Mora Mane’s desk for review on March 23, 2000. Poasa explains that the March 29, 2000, date on the agreement was when he “finalized” the agreement for his own signature, which he left on Mora Mane’s desk on March 30, 2000. He claims that Mora Mane “dragged” his signing until April 5, 2000, and until the end, “kept ■changing his mind on how to go about it.”
From these warring testimonies, and from the substance of the agreement, undisputedly drawn up by Poasa himself, which explicitly refers to the “departure” of Poasa and the “new” formation of Tony’s *145Construction, we find that the breakup and separation of Poasa from CSS had been in a process of negotiation since at least March 9, 2000. Given the testimonies before us, and given the face of the agreement, which has handwritten, initialed modifications of the typewritten terms, as well as handwritten, initialed insertions of additional terms, it is certain that discussion occurred as to the specific terms of the agreement, whether for four hours by the Manes’ account or twelve days by Poasa’s.
E. The Agreement
The agreement dated March 29, 2000 and uncontrovertedly signed by Mora Mane, Sallie Mane, and Poasa provides for the “division of the assets, liabilities and associated resources of [CSS], between CSS and Tony’s Construction, preceding the departure from CSS of Sila Poasa to run the newly formed company, Tony’s Construction as follows.” (emphasis added). The agreement then lists equipment to be distributed between the two companies, and divides responsibilities for two ongoing projects of CSS between the two companies. The agreement designates CSS as responsible for the Poloa Village Road project, and states that the construction of an Amanave water tank for the American Samoa Power Authority (“ASPA”) would be “constructed by Tony’s Construction under CSS contract” where “all debt incurred for said project arid all proceeds derived from this project will be transfer [sic] to Tony’s Construction.” A later-inserted term, handwritten and initialed, provides that either party can use “any equipment needed to complete” either project “free of charge by either party.”
The agreement sets forth certain assets and liabilities to remain with CSS, including “all accounts currently receivable by CSS,” office furniture and fittings. As for a shop building belonging to CSS valued by both parties at $50,000 that is built upon the property of Sila Poasa adjacent his personal residence, this was to “remain with Tony’s Construction and will use [sic] by CSS until CSS has a suitable building available for them” (italics indicate handwritten, inserted, initialed terms).
Thus, on its face, the agreement provides for the severance of Poasa from CSS, and lists a division of assets, liabilities and projects between the company of CSS, signed for by Mora Mane, and the company of Tony’s Construction, signed for by Poasa.
F. The Aftermath of the Agreement
Soon after the agreement was signed, complications arose. Tony’s Construction continued to build the Amanave water tank project with equipment it claims to have obtained from CSS according to the agreement, but encountered difficulties obtaining at least two pieces of equipment, resulting in delays and additional costs of construction. It *146appears that Mom and Sallie Mane at some point failed to recognize the validity of the agreement, and thereafter refused to release the equipment described therein to Tony’s Construction, either for the Amanave project or otherwise. Poasa, on his part, seems to have taken records from the CSS office that he refuses to return, and claims to have access to the office as part owner of the company.
Problems also occurred with respect to the bank accounts held by CSS, for which Sallie Mane and Poasa are co-signatories. After the agreement was signed, Sallie Mane was unable to utilize the CSS accounts at the Bank of Hawaii. She testifies that Poasa had put the CSS checking accounts on hold, and instructed the bank to prevent her from opening another account for CSS. Unable to purchase materials to sustain an ongoing project or to do payroll for CSS’s workers, Sallie Mane testifies that she unsuccessfully attempted to open two more accounts under CSS with herself and Mora Mane, her husband, as signatories. The Bank of Hawaii, according to Sallie Mane, instructed her to close the new accounts and speak with Poasa. The Manes’ complaint, filed in the name of CSS, is largely based on the constriction of their business activity as a result of Poasa’s alleged meddling.
Sila Poasa’s testimony on this point is flatly self-contradictory. At one point, he stated that he put the CSS accounts on hold on March 31, 2000 because he suspected that Mora Mane was not going to “pay and follow through” with the agreement. At a later point, Poasa claims that the Bank of Hawaii rather than himself “froze” the CSS bank accounts. In another instance, Poasa claims not to have known of his removal as President of CSS until March 31, 2000 when he called the bank to “find out why [his] signature had been removed.” On the other hand, Poasa also undisputedly drafted and signed the agreement establishing “departure from CSS of Sila Poasa.”
Only two clear facts emerge from this testimony regarding the parties’ attempts to effectuate the agreement. First, Sallie Mane could not utilize the CSS bank accounts without the signature of Poasa, either due to his interference or to the Mane’s failure to comply with the formal requirements for changing signatories on corporate accounts. Second, Poasa has not yet acknowledged that he has “departed” CSS, and so may tend to conduct himself as a representative of that company.
Discussion
A. Permanent Injunction
CSS requests a permanent injunction against Poasa and Tony’s Construction from using its assets and equipment, and to return all of its *147assets and equipment. A.S.C.A. § 43.1302 allows this Court to issue a permanent injunction only after “full and final trial on the merits”, and “determination that a judgment for money damages will inadequately remedy the complained of [sic] wrong.” A party requesting injunctive relief must thus show that it would succeed on the merits of the case, and that money damages are an inadequate remedy. See, e.g., Thompson v. Toluao, 24 A.S.R. 2d 127, 132 (Land & Titles Div. 1993); Intervisual Commc’n Inc. v. Volbert, 975 F. Supp. 1092, 1104 (N.D. Ill. 1997).
1. Success on the Merits
To claim the assets and equipment at issue, CSS must first prove to the court that it is the true owner of the assets and equipment currently held and used by Tony’s Construction. This, in turn, depends on the validity of the agreement providing for the division of CSS and the transfer of those items to Tony’s Construction.
(а) DISSOLUTION OF PARTNERSHIP
That the Manes and Poasa shared a personal and business relationship, managerial authority, and some ownership over CSS is certain. That CSS substantially failed to operate as a corporation is also certain. We now look to circumstantial evidence, and find it appropriate to consider CSS as a partnership for the purpose of interpreting the dissolution agreement. See Johnson v. Coulter, 28 A.S.R. 218, 219 (Trial Div. 1995) (when there is no written partnership agreement between the parties the court may look to circumstantial evidence to determine the presence or absence of a partnership).
We look to the definition of partnership offered by traditional common law, as well as by the Uniform Partnership Act, which has been adopted by all states except Louisiana, and has not yet been adopted by this Territory. The common law definition widely used is “a contract of two or more competent persons to place their money, effects, labor, and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss in certain proportions.” Black’s Law Dictionary 1120 (6th ed. 1990); see also 59A Am. Jur. 2d, Partnership § 3. Although obviously the Manes and Poasa did not execute a partnership contract, but attempted to formalize CSS as an empty corporation with the intention of avoiding liability, their conduct in placing their money together for profit, and in probably withdrawing those profits without benefit to the corporation, makes them seem to this Court more a partnership than a corporation. This is confirmed by the modem definition offered in the Uniform Partnership Act § 6(1), accepted by all common law states, which defines partnership as “[a]n association of two or more persons to carry on, as co-owners, a business *148for profit.” See also Black’S Law Dictionary 1120 (6th ed. 1990).
In this light, the March 29, 2000, agreement between Poasa and Mom Mane, also signed by Sallie Mane, can be viewed as a dissolution agreement formed by the mutual agreement of all partners to CSS. Such a construction is confirmed by the words of the agreement. The title line states: “This agreement is made between Mora Mane of [CSS] and Sila Poasa, both of [CSS] and Tony’s Construction.” Thus, in the title line,. Mora Mane is recognized as a representative of CSS, and Poasa as of both CSS and Tony’s Construction. However, the title paragraph goes on to reference the departure of Poasa from CSS, and the body of the agreement refers to Poasa as of Tony’s Construction only. Specifically, the headings for the columns listing the division of plant and equipment refer to “CSS (Mora)” and “Tony’s Construction (Sila).” Furthermore, the signature lines show that where Mora Mane signed after the designation “For CSS”, Poasa signed after “For Tony’s Construction.” Poasa’s mention in the title paragraph of the agreement as “both of [CSS] and Tony’s Construction” is thus adjectival of his status before signing the agreement, and his signature as “For Tony’s Construction” indicates the legal effect of dissolving Poasa’s relationship with CSS. We thus find, based on the explicit words of the agreement, that the intended effect of the contract was to dissolve the partnership-like business venture of CSS.
(b) Consideration
CSS, or rather the Manes, claim that Poasa did not provide consideration for the agreement. However, where partners mutually agree to dissolve their partnership and to transfer their interests to one or both of them in return for assumption of certain partnership liabilities, the mutual promises of the partners are the consideration for the agreement. Pejsa v. Bridges, 213 P.2d 473, 475 (Ariz. 1950); see also John D. Calamari and Joseph M. Perillo, The Law of Contracts § 4.1 (4th ed. 1998); Restatement (Second) of Contracts § 4.1 (1981). In Pejsa, partners entered into a dissolution agreement whereby one partner paid three other partners between $1 and $3,000 to assume all right, title, interest, claims and demands of the partnership. 213 P.2d at 474. As in this case, the partner assuming the business from the others sued to dissolve the agreement for lack of consideration. Id. The court ruled there to be no failure of consideration where there was an absence of allegations of fraud, deceit or coercion in procuring the agreement of dissolution, where the agreement was the product of a “free and voluntary action on the part of all the partners after a meeting of the minds the effect of which was to dissolve the partnership in the manner agreed upon” and where the agreement had the effect of settling accounts as between the partners themselves. Id. at 475-76. The March 29, 2000 *149agreement between the Manes for CSS and Poasa for Tony’s Construction involves a much more balanced set of promises for promises than Pejsa. It divides the equipment, assets, claims, and obligations of the company between the Manes and Poasa, and designates how the office is to be divided. The agreement occurred after twenty days of discussion and at least four hours of direct negotiation and consideíátion of the terms of the agreement. The agreement contains, therefore, mutual promises which we are bound to give credence to in this litigation.
(c) Coercion
None of the legal documents submitted claim any fraud, deceit, or coercion. However, during testimony, the Manes implied that they were unduly coerced into signing the agreement — Sallie Mane due to Poasa’s tears, and Moru Mane due to his wife’s exhortations. The Manes may have been moved by grief, guilt, sadness or despair, but nowhere does the evidence indicate that they were forced or otherwise limited in their clear and abiding capacities to reason and choose in entering into the agreement. The Court adjudicates intent, not emotional motivation. Furthermore, the Court perceives through the testimonies, that rational deliberation was indeed invested in the terms of dissolution.
2. Adequate Legal Remedy
Having consideration, the agreement is valid and enforceable. As such, CSS’s claim for its assets and equipment, based on the invalidity of the agreement, does not succeed on the merits. Furthermore, none of the equipment supplied, liabilities, buildings or projects claimed by CSS are non-compensable. Indeed, at trial, CSS presented evidence as to the value of most of the materials claimed. Since the request for injunctive relief against Poasa for use and return of these assets and equipment does not succeed on the merits, and is fully compensable in pecuniary terms, injunctive relief is therefore not available. A.S.C.A. § 43.1302.
As to CSS’s request for injunctive relief against Poasa for continuing to act on behalf of CSS, and for interfering with its activities, we find that this claim for relief succeeds on its merits. A falling-out occurred between the parties, a severance agreement was reached, Poasa is no longer employed by or related to CSS, and yet he continues to represent himself as such.
Money cannot relieve CSS of any damage done to CSS through Poasa’s holding himself out to third parties as an agent of CSS, where he has no actual authority to do so. We therefore grant the permanent injunction barring Poasa from holding himself out as a representative of CSS.
*150B. Specific Performance
Poasa and Tony’s Construction counterclaim for specific performance of the agreement. We have found the agreement to be supported by consideration and to be valid. Specific performance is appropriate in a case such as this, where a written agreement to end a business relationship and divide a company is the only evidence of parties’ intents regarding allocation of the entire rahge of assets, liabilities, service work and resources in the company. As ruled in Pejsa, “[w]hen partners dissolve the partnership relation, whatever its character, and put their agreement in writing, that writing measures the rights and obligations of the parties.” Pejsa, 213 P.2d at 475 (citations omitted). Money damages clearly do not resolve allocation issues in the dissolution of a partnership-like business venture. Specific performance of the agreement is therefore granted.
Order
Judgment will accordingly enter (1) permanently enjoining Poasa from holding himself out as a representative of CSS, and, (2) decreeing specific performance of the parties’ agreement dated March 29, 2000.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486701/ | OPINION AND ORDER
Introduction
The petitioner mother Kathleen Cox (“Petitioner” or “the mother”) requests that we modify a Montana state custody decree (“Montana decree”) and designate her exclusive custodian of the six-year-old minor child (“Minor” or “the child”) of Petitioner and respondent father Eugene Joseph Paslov (“Respondent” or “the father”), who are not now married. The . Montana decree modified an earlier Oregon state court parenting plan by granting custody of Minor, previously with Petitioner, to Respondent. On November 22, 2000, Petitioner filed this motion to modify and, on December 21, 2000, served it upon Respondent. Trial commenced on April 5, 2001, with, both parties present and represented by counsel. Both- parties subsequently filed written closing arguments. Threshold to deciding the merits of Petitioner’s request is the issue of whether .we have jurisdiction to alter another state court’s custody decree. Upon careful consideration of the facts and law in this matter, we conclude that we may, and do, assert jurisdiction to modify the Montana *153decree, and therefore, amend that decree as set out in further detail below.
Facts
Petitioner and Respondent wed in 1991. Petitioner’s two older children from a previous marriage, Diedre (“Diedre”) and Warren Esteron (“Warren”), lived with the couple. Minor was bom to the marriage on November 8, 1994. Since birth, the mother has been Minor’s primary caretaker; since the parties’ separation in 1996, she has been Minor’s resident parent. Since separation, Respondent has had very little involvement in the Minor’s day-to-day upbringing.
From its inception, the marriage was plagued with domestic troubles. Significantly, the Respondent abused drugs and exhibited aggressive tendencies towards the Petitioner and her children. Respondent admitted to using drugs “recreationally” early in the marriage but claims that he discontinued drug use in 1993 or 1994. According to Petitioner, Respondent regularly used drugs such as “crank,” a form of speed, and cocaine at home. She was introduced to these substances by Respondent in the first two weeks of the marriage, and herself tried drags with Respondent. She asserts that she has never used them since. Respondent was not very discreet about his drug use in the marital home. Warren testified that at the age of 11 or 12, he discovered what he now believes to be drugs in Respondent’s- bedroom drawer. Specifically, he found a plate with cocaine-like powder and cut-up straws. At another time, Warren saw drug paraphernalia in the home, and found three packets of the same cocaine-like substance in Respondent’s bathroom drawer.
When Petitioner was gone on overnight work, Respondent was Minor’s caretaker. Petitioner, who works as a flight attendant, frequently traveled interstate, which sometimes required her to “lay-over,” or rest, in a neighboring state. On some of these occasions, Diedre and Warren would awaken at night from Minor’s cries, only to find him alone in the room he shared with Respondent. Respondent apparently disappeared frequently at night, leaving Minor unattended.
Throughout their marriage, Respondent demonstrated an unpredictably violent temperament. For example, on one occasion, when Minor was a baby and was crying, Respondent, in frustration, hovered over him in his crib, shook the bed, and yelled at him to “shut up.” Warren attempted to help, but Respondent refused, and shut him out of the room. Minor continued to wail.
In other incidents, Respondent demonstrated physical hostility. During an intense argument when Petitioner was nine months pregnant with *154Minor, Respondent shoved Warren, aged 13 at the time, into a wall and grabbed him by the neck for attempting to intervene. On at least two other occasions, police responded to complaints of domestic abuse. Once in 1993, and again in 1995, police arrested and jailed Respondent for assaulting Petitioner. In the 1995 incident, Respondent broke Petitioner’s wrist.
Soon thereafter, Petitioner and Respondent separated legally and geographically. In 1996, Petitioner relocated to Washington with her two children and Minor. At some point after Petitioner moved, Respondent transferred to Carson City, Nevada.
While living in Washington, Petitioner was able to provide for her children by continuing her work as a flight attendant. When required to work overnight, Petitioner left Minor with Diedre and Warren, who were then in their mid-teens. She would ensure that an adult friend supervised the children. Although apart, Petitioner continued to send Minor to visit Respondent without incident. Petitioner provided Minor with air transportation through her employee flight benefits, and sent him to Nevada with one of her older children as an escort.
On February 12, 1999, an Oregon state court simultaneously granted Petitioner and Respondent an uncontested divorce, provided Petitioner sole legal and physical custody of Minor, and adopted the parties’ agreed-upon visitation schedule (“Oregon parenting plan”). (Ex. 7, In re the Marriage of Paslov v. Paslov, No. C96-1936 DR, slip op. at 2-3 (Or. Cir. Ct. Feb. 12, 1999).) Specifically, the Oregon parenting plan provided Respondent with supervised visitation at least one weekend a month, one month during the summer, and alternating holidays. Further, the plan specifically outlined the method for implementing Respondent’s visits. Visits were to take place at Minor’s paternal grandparent’s home in Carson City, Nevada, to which Minor had to travel by air, chaperoned by Petitioner or one of her two older children. Respondent was responsible for the cost of air transportation, and suffered to lose his parenting time if he failed to pay for Minor’s airfare. Finally, if Respondent wished to visit with his son in the summer, he was required to notify Petitioner of his intended summer schedule no later than May 1st of each year.
Since the issuance of the Oregon parenting plan, Respondent visited sporadically with Minor. In April 1999, Respondent visited with Minor for about nine to ten days. Then, in September 1999, Petitioner sent Minor, escorted by one of her older children, to Reno, Nevada, where Respondent then lived with his parents. Minor spent three weeks there. Dining the holiday season, from December to January, Minor again spent three weeks with Respondent.
*155In 1999, Petitioner decided to relocate from Washington to Butte, Montana, to live with her fiancé, Don McGee (“McGee”), whom she planned to wed in July 2000. It appears that at least by late December 1999, Petitioner finalized her move to Montana (Petitioner maintained a lease on a Seattle, Washington apartment until December 31, 1999.). The father, aware of the mother’s plans to relocate, but ignorant of her proposed marriage, did not initially object. However, soon after Minor’s Christmas-New Year sojourn in Nevada, at which time Minor revealed the mother’s nuptial plans, the father became obsessively concerned with the possibility of another father figure in his son’s life, and very resentful, if not outright jealous, over Petitioner’s proposed remarriage.
Respondent unpersuasively claims that he objected to Minor’s transfer to Montana, having lost all contact with Minor upon Minor’s mid-January return. In fact, before telephone service had even reached their new home, Petitioner had given Respondent Minor’s Montana address. On the pretext of searching for Minor, but for the apparent purpose of harassing Petitioner, Respondent retained a Montana attorney and private investigator. On March 14, 2000, while McGee and Minor were having breakfast at the War Bonnet Inn in Butte, Montana, they were approached by Respondent, Respondent’s mother, and a private investigator. McGee testified that with Minor nparby, Respondent glared at him and told him to leave Petitioner because “she’s an evil bitch.” McGee reluctantly allowed Minor to visit with Respondent for'24 hours. Through Respondent’s counsel and investigator, the parties attempted a later mediation with Respondent’s mother, counsel, and investigator, with McGee present. The meeting resulted in Petitioner’s assistance in providing Minor with specific telephone access to contact Respondent. However, for no clear reason, the parties’ effort at resolution failed, and communication between the parties deteriorated further.
On April 3, 2000, Respondent petitioned a Montana court to recognize and register the Oregon parenting plan, and modify the same. In particular, Respondent asked that Petitioner remain Minor’s sole custodian, but that the court modify the Oregon parenting plan to provide for 1) increased visitation; 2) reinstatement of Minor’s travel benefits; 3) specific telephone and e-mail access; 4) process for affecting Minor’s residential changes; and 5) other general parental duties.1 On May 18, 2000, Petitioner acquiesced to the Montana court’s jurisdiction, but objected to any modification of the Oregon parenting plan. On May 22, 2000, Judge Ted L. Mizner of the Montana Third Judicial District Court of Powell County (“Judge Mizner”) registered and asserted jurisdiction over Oregon’s plan.
*156Respondent continued to be in contact with Minor. He kept Minor for a weekend in May, and began negotiating with Petitioner for his summer parent-child contact. Because Petitioner and McGee scheduled to wed on June 24, 2001, the parties agreed to schedule Respondent’s summer visit with Minor to June 26, 2001. According to Petitioner, the parties had agreed to exchange Minor at the Tacoma International Airport in Seattle, Washington. However, on June 22, 2000, four days before the scheduled visit in Seattle, Respondent somehow managed to track down Petitioner while she shopped for things for her wedding at a Wal-Mart in Butte, Montana. He accosted Petitioner and made a public spectacle of himself. Accusing Petitioner of concealing Minor, he ranted and raved in the store, quite oblivious to the attention he was attracting, calling Petitioner, among other things, an “evil adulteress cunt.” He further told her that he was going to ruin her wedding, stalk her for the remainder of her life, harm her and her children, and make the rest of her years miserable.
Respondent, incredibly, claims that despite the bizarre altercation, Petitioner promised him a visit with his son at the Ramada Inn Hotel in Butte, Montana, at 12:00 p.m. on June 26. The facts show that Petitioner instead immediately petitioned Justice of the Peace Mel Mooney of SilverBow County (“Judge Mooney”) for a temporary order restraining Respondent from contact with Petitioner and certain family members, including Minor. On June 26, 2000, Respondent was served with the restraining order. Respondent’s counsel immediately contacted Judge Mooney and explained that an ongoing custody proceeding was pending before Judge Mizner in another county. Judge Mooney rescinded the order as to Minor, explaining that it had not been his intent to supersede the current custody order, and ordered that the parties follow the then governing custody order.
Not aware of the order’s rescission, and fearing for her and her children’s safety, Petitioner cancelled her wedding, and left Montana without informing Respondent of her or Minor’s whereabouts. She thereafter moved to American Samoa. She and her children arrived in American Samoa on July 8, 2000.
Meanwhile, court proceedings concerning Petitioner and Minor continued in Montana. On August 1, 2000, Respondent, still uninformed as to Minor’s whereabouts, amended his motion to modify the Oregon parenting plan requesting sole custody of Minor, and Petitioner’s supervised parent-child contact, and psychological evaluation.
On August 2, 2000, Justice of the Peace Kevin A. Hart of Anaconda-Deer Lodge County issued a criminal warrant for Petitioner’s arrest on the charge of parenting interference. (Ex. 7., State of Montana v. Cox, *157No. 00-21331 (Mont. J.P. Ct. Aug. 2, 2000) (warrant of arrest).) The basis for the charge was Petitioner’s thwarting of Respondent’s summer visitation rights. Id. Then, on September 11, 2000, after an ex parte evidentiary hearing, at which Petitioner was not in attendance, her knowledge of the hearing doubtful given her absence, and based solely on Respondent’s distorted version of the facts,2 Judge Mizner granted Respondent sole custody of Minor. Paslov v. Cox, No. DR00-28 (Mont. Dist. Ct. Sept. 11, 2000). Judge Mizner prohibited Petitioner from parent-child contact with Minor “until such time as she submits to, and completes, a full psychological evaluation, to be administered by a licensed therapist.” Id. at 2. Judge Mizner awarded Respondent reasonable attorney fees and costs and terminated Respondent’s child support obligations as of the date of the order. Id.
Since moving to American Samoa, Petitioner has been seeing a therapist. As stated earlier, on November 22, 2000, she fried this action to modify Montana’s decree which gave Respondent sole custody of Minor. Then, on December 21, 2000, Respondent was served. In' February 2001, Respondent arrived in American Samoa and solicited at least three supervised visits with Minor.
Currently, no one lives in Montana. Petitioner, who was bom and raised in American Samoa, testified that she had always intended to return to American Samoa and make it her permanent home. Although Respondent provoked her early return, she intends to continue to reside in American Samoa. Petitioner, Diedre, and Minor live with Petitioner’s mother, a native Samoan, in Pavai'ai, American Samoa. Petitioner placed Minor in school. In February 2001, officials from Child Protective Services performed a home study of Minor’s American Samoa home and approved it for purposes of his care.3
*158Respondent now resides in Reno, Nevada. While his ability to maintain employment has been unsteady, he is currently employed as a waiter at an Olive Garden Restaurant and claims to work part-time helping out his father’s business.
TiistMissimn
For the first time, this Court is asked to modify another state’s custody decree in accordance with the Parental Kidnapping Prevention Act, 28 U.S.C.A. § 1738A (“PKPA”).4 In an effort to provide a uniform federal standard for dealing with national controversies over child custody jurisdiction, Congress enacted the PKPA in 1980.5 The PKPA was clearly intended to preempt state and territorial law regarding the modification of child custody orders.
[I]t is necessary ... to establish national standards under which the courts of such jurisdictions [the states] will determine their jurisdiction to decide such [custody] disputes and the effect to be given by each such jurisdiction to such decisions by the courts of other such jurisdictions.
Id. See also Voninski v. Voninski, 661 S.W.2d 872, 876 (Tenn. Ct. App. 1982) (under the Supremacy Clause of the United States Constitution, the PKPA entirely preempts state child custody law); Curtis v. Curtis, 789 P.2d 717, 721 (Utah Ct. App. 1990); Archambault v. Archambault, 555 N.E.2d 201, 206 (Mass. 1990).
The PKPA requires that we give the Montana decree full faith and credit if it was made consistently with the provisions of the statute. 28 U.S.C.A. § 1738A(a). We need not reexamine Montana’s jurisdiction over the Oregon plan. The parties were both before the Montana Court and assented to Montana’s jurisdiction when the court considered the question and determined its exercise of jurisdiction appropriate. See Jordan v. Jordan, 586 A.2d 1080, 1083 (R.I. 1991) (refusing to revisit jurisdiction determination because the preliminary question was litigated in an adversarial proceeding). We extend full faith and credit to the Montana decree; the next issue is then, whether the PKPA permits our modification of the decree.
*159To modify another state’s decree, the PKPA provides a two-part test, which we apply as follows: 1) did the rendering state lose or refuse jurisdiction; and 2) does the modifying state now have jurisdiction. 28 U.S.C.A. §§ 1738A(f)(l), 1738A(f)(2).6
A. Montana’s .Jurisdiction
There are two ways that a rendering court may retain jurisdiction. First, under subsection (d) of the PKPA, if certain requirements are met, the initial court may have “continuing jurisdiction.” Second, under subsection (g) of the PKPA, if the matter before the initial court is not yet final, it may have “pending jurisdiction” over the case.
1. Continuing Jurisdiction
For a period after a state issues an initial decree, that state continues to have jurisdiction so long as certain PKPA requirements are satisfied. According to this test, the jurisdiction of a rendering state is exclusive as long as it satisfies two requirements: 1) the residence of the child or of any contestant remains in the rendering state; and 2) the rendering state has jurisdiction under its own laws. During this period of what is often termed “continuing jurisdiction,” other states or territories must enforce and cannot modify the initial custody determination.7
*160None of the participants live in Montana. Petitioner and Minor relocated to American Samoa on July 8, 2000, with the intent to remain and make American Samoa their home. Respondent currently resides in Nevada. See, e.g., Dahlen v. Dahlen, 393 N.W.2d 765, 768 (N.D. 1986) (no continuing jurisdiction under PKPA to modify custody decree where no participants to custody dispute continued to reside in state).
2. Pending Jurisdiction
The PKPA further provides that a state court has exclusive jurisdiction if the matter before it is pending. 28 U.S.C.A. § 1738A(g).8 This condition is designed generally to apply to situations in which no custody determination has yet been made on a matter before another state court. See In re Brandon, 551 N.E.2d 506, 509 (Mass. 1990). More specifically, a matter is “pend[ing]” for purposes of the PKPA at any point before the final custody order is made and the time for appeal expires. Id.
In this case, Montana has made a final custody determination. On September 11, 2000, Montana transferred Minor’s custody to Respondent, the nonresident parent. Furthermore, the period to appeal that decision has expired.9
Respondent further argues that Montana’s jurisdiction is “pending” because an enforcement action against Petitioner is proceeding in Montana. A similar fact situation presented itself in In re Brandon. There the court distinguished a “pending” custody determination from a contempt proceeding, which had been spurred by an alleged violation of one parent’s visitation rights. Although an enforcement action was outstanding in another court, the Brandon court held that that court had *161resolved the question of custody, and therefore, the matter was no longer “pending.”
Likewise, in the present case, the current Montana arrest warrant and criminal proceeding against Petitioner for an alleged visitation violation is distinct and separate from Montana’s custody determination and, therefore, is no longer “pending” within the meaning the PKPA. With neither “continuing” nor “pending” jurisdiction, Montana lost jurisdiction. We next determine whether we may exercise jurisdiction.
B. American Samoa’s Jurisdiction
The second prong of the PKPA modification test requires that the modifying territory have jurisdiction as defined by its own laws. American Samoa lacks statutory authority in the form of a UCCJA. However, this court exercises jurisdiction and modifies foreign custody decrees where the child in question is present in the territory. See, e.g., In the Matter of Minor Child, 28 A.S.R.2d 31 (Trial Div. 1995). See also Restatement (Second) of Conflict of Laws § 79(b) (1971).10 We hold that we may exercise jurisdiction over Minor’s custody because Minor is present in the territory, and, in fact, has been present in American Samoa for the past year. Nonetheless, because we have yet to enact our own version of the UCCJA, we turn again to the PKPA to ensure that our exercise of jurisdiction -is consistent with its terms. See Green v. Bruenning, 690 S.W.2d 770, 771 (Ky. 1985) (adopting PKPA to determine state jurisdiction where state had not adopted the UCCJA).
The PKPA provides four jurisdictional bases including: 1) home state jurisdiction; 2) significant connection jurisdiction; 3) emergency jurisdiction; and 4) default jurisdiction. 28 U.S.C.A. §§ 1738A(c)(2)(A)-(D).
We need not consider each basis, and may premise our jurisdictional determination upon just one. See Evans v. Evans, 668 F. Supp. 639, 641 (M.D. Term. 1987) (court must meet at least one of the jurisdictional touchstones of PKPA to modify another state’s custody determination). Under the third enumerated condition, we have jurisdiction if:
the child is physically present in such State and ... it is necessary in an emergency to protect the child because [he] has *162been subjected to or threatened with mistreatment or abuse[.]
28 U.S.C.A. § 1738A(c)(2)(C).
The circumstances in this case clearly create an emergency substantial enough to confer upon this court jurisdiction to protect Minor from Respondent. This Court, unlike the Montana Court, had the benefit of an inter partes adversarial trial. The evidence before us clearly shows that Respondent has a history of drug abuse and a demonstrated propensity for violence. Furthermore, Respondent’s recent pattern of hostility towards Petitioner because of her proposed marriage culminating in the incident at the Montana Wal Mart, makes evident Respondent’s current instability and inability to cope with certain realities, namely Petitioner’s plan to remarry. We are not satisfied that Minor will not be subjected to these harms while in Respondent’s primary care and, therefore, exercise jurisdiction to protect the child’s best interest.
C. Custody
Noting jurisdiction, and taking into consideration all of the factors in this case, we modify the Montana decree to provide Petitioner sole and exclusive custody of Minor. We have previously expressed the circumstances to consider in custody situations as follows:
[O]ther things being equal, children of tender years should remain together and their custody given to the mother. The mother is the natural custodian of her young. There is no satisfactory substitute for her love. Other things being weighed and considered are a good home, congenial surroundings, and intelligent attention and direction in matters affecting the health, education, growth and development of the children.
Stevens v. Stevens, 21 A.S.R.2d 76, 78-79 (Trial Div. 1992) (citations omitted). Historically, Petitioner has been primarily responsible for Minor’s upbringing and day-to-day needs. The evidence shows that the mother has continued to provide Minor with a stable and nurturing environment. While managing single parenthood, the mother has maintained gainful employment; the father has not. In addition, the mother has a proven record of accomplishment with raising children, having successfully reared Minor’s two older siblings. Perhaps as significant a factor is Minor’s continued interaction with his two older siblings, who have both actively participated in Minor’s upbringing and care. Currently, Diedre and the child reside with the mother. While we do not doubt a father’s love for his son, this father’s commitment towards his parental obligations is far outweighed by the mother’s in this case. *163When married, the father left the child unattended at night in the mother’s absence, openly abused drugs, and demonstrated an uncontrollable temperament. Since the separation and divorce, he has inconsistently invoked his visitation rights, and has had to rely on his ex-wife for assistance. Furthermore, we have not had the benefit of any evidence as to the father’s ability to provide for the child’s day-to-day care such as a stable home environment and educational needs. From what can be gleaned from the father’s circumstances, he appears seriously dependent on his own parents to provide for the child’s needs, especially since all of Respondent’s visits with Minor have taken place at the paternal grandparent’s home. Moreover, the record before us is scant as to the paternal grandparents’ circumstances in terms of their ability and willingness to furnish day-to-day assistance beyond intermittent visits as in the past. The Court is not convinced of the father’s suitability for sole custody given his background with drug abuse coupled with his aggressive nature. At the same time, we are troubled with the very clear impression that Respondent’s motivation and primary purpose in this whole sorry affair has not so much been the best interests and welfare of the Minor, but rather the detriment of his mother. We conclude, therefore, that it would be in Minor’s best interest that custody be reestablished with the Petitioner.
Order
1. Sole and exclusive custody of Minor is granted to Petitioner.
2. Temporary physical custody of Minor is granted to Minor’s maternal grandmother until the conclusion of Montana criminal proceedings regarding the charge against Petitioner of alleged parental interference.
3. Reasonable visitation, supervised by a Department of Human and Social Services Child Protective Services officer or representative, is granted to Respondent.
It is so ordered.
Respondent also requested amendment to child support obligations, not at issue in this case.
Respondent accuses Petitioner of thwarting his visitation opportunities. However, it is quite clear from the evidence that Respondent’s missed visits with Minor were due to his own failure to schedule or pay for Minor’s transportation as mandated by the Oregon parenting plan. In fact, on occasions, Petitioner facilitated, rather than inhibited visits by providing air transportation for Minor through her employment benefits. And when she did not, she received haranguing email from Respondent’s mother bemoaning Respondent’s failure to provide for Minor’s transportation costs, citing Respondent’s unemployment.
At a hearing held post-trial but before the issuance of this decision, on June 25, 2001, concerning the same matter, Petitioner’s counsel advised the court that Petitioner is currently in Montana to face the charge of alleged parental interference. In the meantime, Minor continues in the care and custody of his maternal grandmother and Deidre.
Petitioner also asks that we modify the Montana custody decree in accordance with the Uniform Child Custody Jurisdiction Act of 1968 (“UCCJA”). However, while the majority of states and territories have enacted the UCCJA, or its equivalent, American Samoa has not.
The PKPA applies to American Samoa where the act defines “state” as including “a territory or possession of the United States.” 28 U.S.C.A. § 1738A(b)(8).
The PKPA provides in pertinent part:
Full faith and credit given to child custody determinations
(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection[ ] (f) . . . of this section, any [child] custody determination . . . made consistently with the provisions of this section by a court of another State.
* * *
(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if—
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.
28 U.S.C.A. § 1738A(a), (f).
PKPA subsection (d) states:
The jurisdiction of a court of a State which has made a child custody... determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
*16028 U.S.C.A. § 1738A(d). PKPA subsection (c)(1) states, in pertinent part:
A child custody. . . determination made by a court of a State is consistent with the provisions of this section only if (1) such court has jurisdiction under the law of such State.
28 U.S.C.A. § 1738A(c)(l).
PKPA subsection (g) states:
A court of a State shall not exercise jurisdiction in any proceeding for a custody . . . determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.
28U.S.C.A. § 1738A(g).
Montana Rules of Appellate Procedure Rule 5(a)(1) allows parties 30 days to appeal a custody determination.
The Restatement states in relevant part: “A state has power to exercise judicial jurisdiction to determine the custody ... of a child . . . who is present in the state.” Restatement (Second) of Conflict of Laws § 79(b). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486702/ | ORDER GRANTING DEFENDANTS SUMMARY JUDGMENT AND DISMISSING ACTION
On July 26, 2000, plaintiff Siuleo Pouesi (“Pouesi”) brought this action against defendants American Samoa Government (“ASG”) and American Samoa Environmental Protection Agency (“ASEPA”) to recover damages due to the alleged conversion of a logo designed by Pouesi for ASEPA. On August 7, 2000, pursuant to T.C.R.C.P. 12(b)(6), ASG and ASEPA moved to dismiss Pouesi’s complaint for failure to state a claim on which relief can be granted based on the tolling of the relevant statute of limitations. Counsel argued the motion on September 22, 2000.
On September 21, 2000, the day before the hearing on the motion to dismiss, Pouesi filed a memorandum in opposition of the motion and his affidavit stating additional facts. On September 27, 2000, ASG and ASEPA filed a reply to the opposition memorándum and their counsel’s affidavit, stating he was unaware of Pouesi’s opposition memorandum and affidavit until after the hearing. Accordingly, we have also considered the reply memorandum.
Standard of Review
A motion to dismiss will be treated as a summary judgment motion when evidence extrinsic to the complaint is presented to and is considered by the court. Samoana Fellowship, Inc. v. Am. Samoa Power Auth., 24 A.S.R.2d 71, 72 (Trial Div. 1993) (citing Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992)). Pouesi’s affidavit explicated new facts as evidence of the chronology of events to sustain his claim. We considered the merit of the facts contained in the affidavit and, therefore, must treat the motion to dismiss as a motion for summary judgment.
Summary judgment is appropriate when there is “no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” T.C.R.C.P. 56(c). The Court must view the pleadings and supporting papers in the light most favorable to the non-moving party. Amerika Samoa Bank v, United Parcel Serv., 25 A.S.R.2d 159, *166161 (Trial Div. 1994); Ah Mai v. Am. Samoa Gov’t (Mem.), 11 A.S.R.2d 133, 136 (Trial Div. 1989). If the moving party makes a prima facie case that would entitle movant to a directed verdict if uncontroverted at trial, the burden shifts to the adverse party, who must “set forth specific facts showing that there is a genuine issue for trial.” T.C.R.C.P. 56(e).
Facts
Pouesi designed a logo for ASEPA in 1986. A disagreement then ensued between him and ASEPA as to payment for and use of the design. Though Pouesi alleges that ASO and ASEPA made unkept promises concerning the disagreement and that he occasionally threatened legal action, he did not initiate any formal claim until the present one was filed. ASEPA apparently used the logo for over a decade.
Some 13 years after providing the logo to ASEPA, in or about February 1999, Pouesi claims to have first discovered that ASEPA sold T-shirts and mugs printed with the logo he designed. On April 2, 1999, Pouesi submitted an administrative claim to the Attorney General, a prerequisite under the Government Tort Liability Act (“G.T.L.A.”), A.S.C.A. § 43.1205, to initiate tort actions against ASG. On May 18 and 20, 1999, the Attorney General advised Pouesi that his claim does not fall under the purview of the G.T.L.A.
Discussion
ASG and ASEPA argue that the statute of limitations has tolled for Pouesi’s claim against ASG and ASEPA for damages due to tortious conversion of his logo design. This argument is supported by statute and case law.
Tort claims against ASG are subject to the G.T.L.A., which states that such claims “shall be forever barred unless an action on it is begun within 2 years after the claim accrues.” A.S.C.A. § 43.1204. Our most recent line of cases interpreting the term “accrues” for purposes of A.S.C.A. § 43.1204 focuses on the relationship between the accrual of a claim and the filing of the pre-requisite administrative claim. See Bradcock v. Am. Samoa Gov’t, 1 A.S.R.3d 42, 43 (App. Div. 1997) (applying tolling doctrine to the statute of limitations, effectively adding a three-month period of administrative processing to the two-year statute of limitations of G.T.L.A., thereby creating a 27-month time period in which to file a tort action against ASG); Bradcock v. Am. Samoa Gov’t, 28 A.S.R.2d 62, 64 (Trial Div. 1995); Randall v. Am. Samoa Gov’t, 19 A.S.R.2d 111, 116 (Trial Div. 1991); Mataipule v. Tifaimoana, 16 A.S.R.2d 48, 50 (Trial Div. 1990) (claim under G.T.L.A. accrues for purposes of § 43.1204 when the administrative claim is denied).
*167Thirteen years passed between Pouesi’s first dispute, whereby he claims to have confronted ASEPA about its failure to pay for his logo design, and his discovery and contest of ASEPA’s use of his design for allegedly commercial purposes. This more than surpasses the 27-month statute of limitations applicable to conversion actions against ASG under Braddock, and so seems to bar Pouesi’s action.
Pouesi argues, however, that the statute of limitations should be regarded as accruing from the time he discovered the conversion by commercial use of the logo in February 1999. Such a ruling by the Court would render the filing of this action well within the limitation period of 27 months.
However, the majority common law is definitive in holding that, in actions for conversion, the cause of action accrues on the date of the conversion, regardless of when the plaintiff discovers the conversion or whether he demanded the return of the property, unless the case involves fraudulent concealment or other act of deceit designed to hide the defendant’s actions from the plaintiff. Therrell v. Georgia Marbel Holdings Corp., 960 F.2d 1555, 1560 (11th Cir. 1992); Jackson v. Am. Credit Bureau, Inc., 531 P.2d 932, 934 (Ariz. 1975); Small Business Admin. v. Echevarria, 864 F. Supp. 1254, 1260 (S.D. Fla. 1994); see generally 18 Am. Jur. 2d Conversion § 94 (1985); 51 Am. Jur. 2d Limitation of Actions § 123 (1985).
There is neither allegations nor evidence of fraud in this case. All events surrounding the disputed acquisition of the logo by ASEPA, the terms of the acquisition, and failures of ASEPA to pay began much longer than 27 months ago, in 1986.
The statute of limitations has clearly transpired, barring Pouesi from bringing this claim for conversion. Therefore, this action will be summarily dismissed.
.Order
Summary judgment shall enter in favor of ASG and ASEPA against Pouesi, and this action is dismissed.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486703/ | ORDER DISMISSING CONTROVERSION PROCEEDING AGAINST GARNISHEE, AND IN AID OF JUDGMENT
On September 10, 1997, plaintiff Amos E. Coffelt (“Coffelt”) obtained a judgment against defendants Pacific Rim Consulting and Inspection *169Corp., a Hawaii corporation (“Pacific Rim HI”), and Kenneth A. Benish (“Benish”), jointly and severally, in the amount of $1,199,347.00 in the Circuit Court of the First Circuit, State of Hawaii (“the HI judgment”).
On April 30, 1998, pursuant to the Uniform Enforcement of Judgments Act, A.S.C.A. §§ 43.1701-.1709, Coffelt petitioned for registration of the HI judgment as a foreign judgment in this court. Notice of filing the HI judgment was given to Pacific Rim HI and Benish in accordance with A.S.C.A. § 43.1704(b). As authorized by A.S.C.A. § 43.1705, in April of 1999, more than 30 days having passed, Coffelt initiated process to enforce the HI judgment by execution, garnishments, an application for an order in aid of judgment, and discovery.
Coffelt applied for an order in aid of judgment on April 3, 2000, pursuant to A.S.C.A. §§ 43.1501-.1506. A hearing was scheduled on May 22, 2000, but on the hearing date, the motion was taken off-calendar at Coffelt’s request. On September 6, 2000, a hearing on the motion was rescheduled on October 2, 2000. The hearing was continued to November 16, 2000, and again to January 12, 2001. However, when Coffelt’s counsel did not appear on January 12, 2001, the motion again was taken off-calendar. The motion remains pending.
Pacific Rim of American Samoa, Ltd., (“Pacific Rim AS”) was among the various garnishees. A writ of garnishment, notice of garnishment, and interrogatories as set forth in A.S.C.A. § 43.1805 were issued to Pacific Rim AS on January 17, 2001. On January 18, 2001, in compliance with A.S.C.A. § 43.1802(b), the Marshal served those documents on Benish as the purported manager of Pacific Rim AS. The notice was defective by failing to state the garnishee’s appearance date in court (the second Tuesday following service required under A.S.C.A. § 43.1802(b)), but did properly direct the garnishee to answer the interrogatories in lieu of the court appearance. When no answers were forthcoming, a hearing was scheduled on March 19, 2001, upon Coffelt’s motion, to compel the answers. However, this hearing was cancelled when, on March 7, 2001, Pacific Rim AS filed answers. The answers were signed on behalf of Pacific Rim AS by Tina V. Benish (“Tina Benish”) on March 5, 2001, in Apia, Samoa.
On March 15, 2001, pursuant to A.S.C.A. § 43.1807, Coffelt filed a controversion of the answers provided by Pacific Rim AS. Pacific Rim AS has not filed any pleading related to the controversion proceeding beyond its original answers to the garnishment interrogatories. Likewise, neither Pacific Rim HI nor Benish has filed any pleading permitted by A.S.C.A. § 43.1810. Trial on the controversion was originally scheduled on April 6, 2001, and then continued, first to May 7, 2001, and ultimately to July 30, 2001. On June 5, 2001, Benish was served with the *170controversion pleading and notice of the July 30, 2001, trial date. On July 30, 2001, counsel for Coffelt was present. Benish and his counsel were also present. Tina Benish was not present.
Discussion
A. Notice issues
A judgment may not be rendered against a garnishee who has not been notified of the controversion pleading and the time and place of trial. A.S.C.A. § 43.1808. In addition, a judgment may not be entered against a garnishee until the principal debtor defendant on the underlying debt has been given seven days written notice of the controversion proceeding and trial date. A.S.C.A. § 43.1812.
Benish was served with the controversion pleading and written notice of the July 30, 2001 trial date on June 5, 2001. Pacific Rim HI was not separately served with these documents. We hold that the service on Benish was sufficiently compliant with A.S.C.A. § 43.1812 for purposes of the controversion proceeding before us.
Benish argues that the service on him did not constitute the statutorily mandated notice of the controversion proceeding and trial date to the garnishee Pacific Rim AS, A.S.C.A. § 43.1808, because he is no longer a director, officer, employee, or agent of, or otherwise associated with Pacific Rim AS. We take judicial notice of the ongoing proceedings in Benish v. Benish, DR No. 105-99, in addition to the evidence taken at the trial of the controversion proceeding, in our assessment of this argument.
Pacific Rim AS was incorporated by Benish, his former wife Ta'alolo Galeai Benish (“Galeai”), and Clara Snow. Until Benish and Galeai were divorced on October 21, 1999, they clearly owned, but Benish essentially operated, the corporation. Under the settlement agreement approved and incorporated in the decree of divorce in Benish, Benish became the sole shareholder of Pacific Rim AS. Galeai completely severed her relationship with Pacific Rim AS, and new officers and directors were put in place. Although undocumented, Benish claims that, at an unspecified time (under the evidence) after the divorce was granted but before the original garnishment documents were served on Pacific Rim AS, he transferred all shares in Pacific Rim AS to Tina Benish, the former secretary of the company. He claims that Tina Benish is now the sole owner and operator of Pacific Rim AS, and that he conducts business as a consultant on various construction issues totally independent of any connection with Pacific Rim AS. Because Tina Benish presently lives in [Western] Samoa, she has neither been nor can be readily served on behalf of Pacific Rim AS with the present controversion pleadings and trial date notice.
*171As admitted in Tina Benish’s answers on behalf of Pacific Rim AS, Benish was an employee of the corporation as of January 18, 2001, when the garnishment documents were served on him. Tina Benish also stated that Benish was no longer an employee of Pacific Rim AS when she signed the answers on March 5, 2001. However, she further added, “but as my husband, he will look after my interests.” Based on the organizational and operational history of Pacific Rim AS and Benish’s general grant of authority to handle Tina Benish’s affairs, we find that Benish controls the corporation Pacific Rim AS as his alter ego. See, e.g., Amerika Samoa Bank v. Adams, 22 A.S.R.2d 38, 43 (Trial Div. 1992) (finding- a corporationto be the alter'ego of an individual based on a totality of circumstances, including his dominion and control of the corporation). The service on June 5, 2001, of the controversion pleading and trial notice on Benish thus satisfies the statutory requirement of A.S.C.A. § 43.1808 of notification to the garnishee.
B. Controversion Issues
Pacific Rim AS has submitted answers to Coffelt’s garnishment interrogatories Stating that it does not “hold or control any property, rights, or credits” belonging to Benish, and that he is no longer an employed of Pacific Rim AS, though he does “look after” the interest of his wife, Tina Benish; the owner the corporation. Coffelt controverts these answers, and asks'this Court to find that Pacific Rim AS, in addition to being Benish’s alter ego, indeed holds property, rights, or credits belonging to Benish, or is indebted to him. Such a finding would form a basis for the Court to render a judgment in the garnishment controversion proceeding holding Pacific Rim AS liable to Coffelt for the amount owed under the HI judgment. A.S.C.A. § .43.1811.
However, Coffelt has failed to prove by a preponderance of the evidence that Pacific Rim AS “was indebted to Benish or had any of his property” at the time the writ of garnishment was served on the corporation. A.S.C.A. § 43.1811. Indeed, Coffelt has failed to prove that Pacific Rim AS has any property at all, much less the property of Benish. Without a finding of Pacific Rim AS’s indebtedness to Benish or its possession or control of his property that would be subject to garnishment, we cannot render a judgment holding Pacific Rim AS liable as a garnishee. See also Commercial State Bank of Nacogdoches v. Van Dorn, 25 S.W.2d 192, 193 (Tex. Ct. App. 1930).
We will hold that, in the controversion proceeding, Pacific Rim AS as garnishee is not liable to Coffelt on the HI judgment against Pacific Rim HI and Benish. We will therefore dismiss Coffelt’s controversion proceeding and terminate his present garnishment proceeding against Pacific Rim AS.
*172C. Order in Aid of Judgment
As indicated above, Coffelt’s motion for an order in aid of judgment is still outstanding. Benish was ordered in Benish v. Benish, DR No. 1 OS-99, to pay to Galeai spousal support of $1,000 per month and $300 per month in child support for each of their three children, a total of $1,900 per month. This order was based on the agreement between Benish and Galeai, and the Court’s determination that Galeai reasonably required spousal and child support in this amount and Benish could afford to pay it. Since then, one of the three children has reached adulthood. Thus, the total amount of spousal and child support has been reduced to $ 1,600 per month. Benish is still able to pay the larger amount. Accordingly, pursuant to A.S.C.A. § 43.1503, we will conclude the pending application for an order in aid of judgment by ordering Benish to pay $300 per month in aid of the HI judgment at this time.
Order
1. The controversion proceeding against Pacific Rim AS is dismissed, and the present garnishment proceeding against it is terminated.
2. Benish shall pay $300 per month, beginning in the month of September 2001, in aid of the HI judgment. Payments shall be made to the Clerk of the Court, who shall release the funds paid to counsel Paul F. Miller for disbursement to Coffelt.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486704/ | OPINION AND ORDER
Plaintiff Samoa Development Inc. (“Samoa Development”) brings this suit for damages against defendants American Samoa Power Authority (“ASPA”) and Fred Pele (“Pele”) for wrongfully cancelling an award of procurement. ASPA and Pele contend their act was justified by the explicit terms governing the award, specifically those applicable to contractors’ bonds. The case proceeded to trial on November 28, 2000. Both counsel were present.
Facts
On June 8, 1995, the Office of Procurement of the American Samoa Government issued an Invitation for Bids for Project #AS-NH-001(29), regarding striping, signing and delineation of portions of the Territorial Route 1 highway of American Samoa (“the striping project”). ASPA was, at the time, engaged in public highway construction and maintenance. ASPA’s Executive Director Abe Malae (“Malae”) was, as ASPA’s chief procurement officer, ultimately responsible for the selection of outside contractors procured for highway projects. Pele, the *175general manager of ASPA’s Civil/Highway Division, had been delegated authority for administration of the performance of contracts for such projects, including the contract in question. He also had at least apparent authority to conduct the procurement process for the striping project.
The specifications governing the striping project, made available to all bidders, incorporated the Hawaii Standard Specifications for Road and Bridge Construction and explicitly substituted terms. Haw. Dep’t of Transp., Highways Div., Haw. Standard Specifications. Three provisions, in particular, are relevant in this case. Section 103.04 of the specifications governs cancellation of the award, and reserves for the ASG’s Department of Public Works “the right to cancel the award of any contract at any time before the execution of said contract by all parties without any liability to the awarded and to any other bidder.” Id. at § 103.04 (emphasis added). Section 103.06 requires contractor’s bonds. It states, specifically, “[a]t the time of the execution of the contract, the successful bidder shall file a ‘Performance Bond’ and a ‘Payment Bond.’” Id. at § 103.06. Finally, Section 103.08 provides that failure to execute the contract and file acceptable bonds within 10 days after the award of the contract, or within such further time as the Director may allow, shall be cause for the cancellation of the award.” Id. at § 103.08. Such specifications are authorized by A.S.C.A. § 15.0102 (12).2
On July 11, 1995, the Source Evaluation Board (“SEB”) for this procurement met, opened the bids, and found Samoa Development to be, at $182,951.00, the lowest responsive bidder.3 In second place was Island Builders, Inc. (“Island Builders”), at $193,034.69. The U.S. Department of Transportation, Federal Highway Administration (“FHWA”), which provided funding for the striping project, was notified of the SEB’s findings by ASPA’s letter of July 21, 1995, signed by Pele. FHWA concurred in the award to Samoa Development on August 1, 1995. A notice of award was issued to Samoa Development on August 9, 1995, in a letter from ASPA, signed by Malae and Pele, and addressed to Samoa Development’s president Falema'o Pili (“Pili”). The letter requests that Samoa Development “provide originals of the Performance *176Bond for 100% of the contract amount, Labor and Material Payment Bond for 100% of the contract amount and proof of insurance coverage” ■within 14 days upon receipt of the notice. The notice was marked received on August 11, 1995.
On August 23, 1995, two days before the deadline to acquire the bonds, Samoa Development sent a letter, signed by Pili, to ASPA acknowledging the “conditional awarding” of the striping contract to it, and asking for an extension of 15 days to acquire the bonds. ASPA granted to Samoa Development an extension within which to provide performance and payment bonds. There is, however,' no express evidence as to the actual number of days given in the extension itself, ASPA’s notice to Samoa Development of its withdrawal of the striping project award, dated September 13, 1995, signed by Pele for Malae and ASPA, confirms an extension of 19 days. The relevant portion states, “You have been extended nineteen (19) more calendar days, in addition to the addition to the original fourteen (14) calendar days to post the bonds but to no avail.” However, a ASPA’s later letter of October 6, 1995, again signed by Pele for Malae and ASPA, written with the purpose of asking Samoa Development to pick up the original bonds, states: “It is very unfortunate that your company had failed to submit all necessary bonds in time even after extending the period for further [sic] 14 days. ASPA has been awaiting [sic] 5 days more than the deadline to inform you the withdrawal [sic] of this project.”
We find that an extension of 14 days was given. However, we also find that ASPA and Pele unofficially postponed termination of the contract award for another five days and thus afforded Samoa Development further time to provide the required bonds. This action was consistent with ASPA’s customary practice. In 1995, ASPA was flexible in its deadlines regarding the accepting and filing of bonds as a matter of practical necessity in the procurement of local contractors to perform public construction projects that required bonding. As small businesses, local contracting firms were unaccustomed to bonding requirements for federally-funded projects and often encountered financial and logistical problems in routinely acquiring contractors’ bonds.
Samoa Development did, in good faith, acquire the appropriate bonds. On September 8, 1995, ASPA received from Kalilimoku Hunt, a general agent of the American National Insurance Co., a letter stating that “all of the requirements to consummate the bond” for the striping project were received by the Hunt/Linden Agency, and were then submitted to the National Casualty Insurance Co. It further stated: “[w]e have indications from the Insurance Company that the bond should be issued by Wednesday 13, 1995 [sic].” Samoa Development received further confirmation of the processing of its bond on September 11, 1995, in a *177letter from Robert Style, Regional Director of Broker’s Network, stating, “we are in the process of procuring bond(s) in the amount $182,951.00.”
On September 12, 1995, Samoa Development received a hand-scrawled fax from an “Anita” at Specialty Bonds and Insurance, Co. to a “Kauli,” with the subject line “Re: Samoa Development,” the body of which states:
WE HAVE APPROVAL TO ISSUE BOND FOR CAPTIONED. PLZ [sic] HAVE 61A EXECUTED AND FAX’D [sic] BACK. RATE WILL BE 390, SO WE WILL NEED FAX’D [sic] COPY OF CHECK IN AMOUNT OF $5,489.00. THX! [sic],
Samoa Development apprised Pele of the authorization that day, and on September 13, 1995, sent to ASPA what Pili described in a cover letter to be “the documents which indicates [sic] the issuing of our Bond. The Underwriter is sending our Bond in the overnight pouch on Friday’s flight.”
Despite these communications, in a letter dated and faxed on September 13, 1995, signed by Pele only, without a signature above the signature line for Malae, ASPA withdrew the contract from Samoa Development “because of failure to post the required performance and the payment bonds.” Pili immediately responded with a letter asking for reconsideration “on the grounds that a letter of intent was included to ensure the forthcoming issuance of the Bond. Moreover, the fax included from the underwriter further firms [sic] the Impending Bond which was about to be issued.”
On September 14, 1995, a letter from Anita Love of Specialty Bonds and Insurance, Inc., was faxed to ASPA confirming that approval had been given to issue performance and payment bonds in the amount of $182,951.00 for the striping project. She also faxed a copy of the bonds to ASPA, and on September 15, 1995, mailed the originals via express mail. These arrived in due course, as confirmed by ASPA’s letter of October 6, 1995, signed by Pale for Malae and ASPA, requesting that Pili pick up the originals of the bonds.
Island Builders, the second lowest bidder, was awarded the contract, which was eventually executed without the original payment bond or insurance documentation. It had secured a bond from surety United Pacific Insurance Company on September 1, 1995, according to the dates on the face of the bond. The contract date is listed as August 28, 1995. However, Island Builders still had not supplied either the original payment bond or insurance documentation when ASPA held a *178preconstruction meeting on October 17, 1995. Further, due to lack of appropriate equipment, Island Builders caused delay of the striping until at least December 1, 1995.
Discussion
I. Termination of the Contract Award
Samoa Development complains that it was wronged by ASPA’s and Pele’s termination of the award of the striping project. However, courts have upheld the right to rescind a contract award where no contractual rights have vested. McRae v. Farguhar & Aibright Co., 269 S.W. 375, 377 (Ark. 1925). The issue is thus whether or not contractual rights vested in ASPA’s award of the striping project to Samoa Development.
A public agency’s invitation for bids is regarded as a request for offers; no contractual rights arise prior to its acceptance by the agency. State v. Johnson, 779 P.2d 778, 780 (Alaska 1989). The bid is the offer, and a contract comes into being upon acceptance by the agency. Id. However, in this particular case, there are two provisions in the bidding specifications which would function, if the facts are compliant, to restrain the vesting of contractual rights until after an award has been made. These provisions are examined below in light of their interpretation by common law, and application to the relevant facts of this case.
A. The Cancellation Clause
Section 103.04 of the specifications provides that ASPA, in awarding a bid, maintains “the right to cancel the award of any contract at any time before the execution of said contract . . . without any liability to the awardee.” ASPA and Pele contend that because no contract was executed, this provision shields them from liability for terminating the award to Samoa Development.
Courts will respect statutory language requiring formal execution of a contract in order for contract rights and obligations to vest. McRae, 269 S.W. at 382; see generally Annotation, Revocation, Prior to Execution of Formal Written Contract, of Vote or Decision of Public Body Awarding Contract to Bidder, 3 A.L.R.3d 864 (1965); 64 Am. Jur. 2d Public Works and Contracts §§ 63-81 (1972). Such language manifests parties’ intentions to treat a procurement award as a purely preliminary and tentative negotiation event, subject to the signing of a formal contract. Id. To do otherwise would be to presume an intention by parties to form a contract prior to formal execution in clear contradiction to open, known, statutory terms. Id.
*179Clearly, no formal contract had been executed by September 13, 1995, when ASPA terminated the award, and so it would seem that ASPA has avoided liability. However, where arbitrary action or fraudulent intent to injure a complaining party is indicated, courts may interfere with an agency’s power to reconsider and rescind its award. Schull Constr. Co. v. Bd. Regents of Ed., 113 N.W.2d 663, 665 (S.D. 1962).
There is evidence here of arbitrariness in ASPA’s action, coupled with an intent to injure Samoa Development, either of which causes us pause in allowing ASPA’s exercise of rescission power. Specifically, backroom negotiations appear to have occurred between Pele and Island Builders, the second-lowest bidder which was awarded the contract after Samoa Development’s award was rescinded. The bond procured by Island Builders lists September 1, 1995, as the bond execution date, and August 28, 1995, as the contract date, despite the fact that Samoa Development’s award was not rescinded until September 13, 1995.
Further, it appears that ASPA and Pele arbitrarily terminated the award for Samoa Development. Pele cancelled Samoa Development’s contract despite knowing that the bonds had been approved and were about to be issued. Pele then formalized the contract with Island Builders on October 5, 1995, despite its inability to obtain proper striping equipment until December 1, 1995, and more importantly, despite its having neglected to submit an original payment bond or any insurance documentation. We will not honor a clause shielding a government agency from liability that is employed arbitrarily, as a loophole for discrimination against particular private contractors. ASPA may not protect itself from liability due to the cancellation clause in this case. While ASPA may have been within its strict rights to cancel the award to Samoa Development, it did so arbitrarily and is answerable in consequential damages.
B. The Bond Requirement
ASPA further argues that Samoa Development failed to fulfill the bond requirement contained in the bid specifications, and thus provided good cause for ASPA’s termination of its award. The requirement for filing bonds is imposed upon Samoa Development by Sections 103.06 and 103.08 of the specifications. Haw. Dep’t of Transp., Highways Div., Haw. Standard Specifications §§ 103.06, 103.08. Section 103.06 mandates that the successful bidder file a performance and payment bond “[a]t the time of the execution of the contract.” Id. (emphasis added). Section 103.08 sets an explicit deadline for these conjoint acts, namely “within 10 days after the award of the contract, or within such further time as the Director may allow.” Id. The penalty for failure to execute *180the contract and file acceptable bonds is that such failure “shall be cause for cancellation of the award.” Read together, these two sections impose upon the parties the requirement of (1) bond filing simultaneous with execution of the contract, and (2) a deadline for doing so of either 10 days after the award, or within a time specified by the Director of ASPA. After stating an initial 14-day time period in which Samoa Development was to file the bonds, ASPA granted an extension for bond filing, but did not clearly specify how long it would be. By the time ASPA terminated its award, on September 13, 1995, it had received, specifically: (1) a September 8, 1995, letter from the insurance company confirming Samoa Development’s submission of bond requirements, (2) a September 11, 1995, letter from Broker’s Network confirming that the bonds were being processed, and finally, (3) a fax from Specialty Bonds Insurance Co. indicating approval to issue the bond, and asking for a copy of a $5,489.00 check.
It appears, however, that ASPA had an unwritten customary policy of flexibility in accepting contractors’ bonds for public contracts where such bonds are proven to be reasonably forthcoming. This appears to be due to the difficulties and time-lags inherent in acquiring such bonds from acceptable off-island sureties when local contractors were still not readily able to obtain bonds. We find it necessary to consider such a custom in this particular, peculiar case, where no written or otherwise obvious manifestation of ASPA’s and Pele’s intent regarding the timeline for bond filing has been presented beyond Samoa Development’s request for a 15-day extension, and ASPA’s retroactive, contradictory statements of either 14 or 19 days. See generally 21 Am. Jur. 2d Customs and Usages (1998).
ASPA’s custom in 1995 was to be flexible in accepting contractors’ bonds for public contracts, so long as they were reasonably forthcoming. Indeed, ASPA eventually executed a contract with Island Builders without the required original payment bond. Samoa Development’s bonds were more than forthcoming; they were imminent, predicated only upon the surety’s receipt of a check from Samoa Development, and filed the very day after ASPA’s arbitrary cancellation of its award.4 ASPA *181and Pele had been notified, and were fully aware of this fact. Indeed, on September 14, 1995, the day after termination of the contract award, ASPA received a confirmation letter from the surety along with faxed copies of the completed, executed bonds. Had Pele acted for ASPA in a manner less arbitrarily disposed towards Island Builders and more in line with industry custom, he would have received the bonds from Samoa Development and proceeded with execution of the contract with it. We hold that Samoa Development fulfilled the specified requirements for filing bonds, and that ASPA terminated the contract award without good cause.
II. Damages
A. Rebanee Damages
Samoa Development presented evidence of special damages of $95,288, covering $88,299 as estimated lost profits expected from execution of the bid-upon contract with ASPA, and $6,989 in expenses related to obtaining the contractor’s bonds. The issue is whether Samoa Development is entitled to these damages.
We have mled that ASPA and Pele cannot escape liability for arbitrary cancellation of a contract award through the cancellation clause contained in the specifications. This does not, however, mean that a contract was indeed formed, and was indeed breached. As we discussed above, no formal contract had been executed by September 13, 1995, when ASPA terminated the contract award; since such formalization was required by the specifications, no contractual rights and obligations actually vested. We cannot, therefore, award expectation damages, i.e., the estimated lost profits, as would be appropriate in cases involving an actual loss from an actual breach of an actual contract. Restatement of Contracts 2d § 347, cmt. a (1981); Miller v. Robertson, 266 U.S. 243, 258 (1924). Samoa Development is thus not entitled to the $88,299 in lost profits.
We can, however, award Samoa Development reliance damages to avoid injustice in this case, based on the doctrine of promissory estoppel. This doctrine estops ASPA from denying its implied promise to execute a contract with Samoa Development, once Samoa Development has relied in good faith upon ASPA’s representation. Restatement of Contracts 2d § 90 (1981). The confirmed expenditures by Samoa Development, made in reliance upon ASPA’s promise, are the $5,489 spent on premiums for the contractor’s bonds *182and the $1,500 expended on accounting fees and communications related to acquisition of the bonds. We thus award $6,989 as damages related to the cost of the contractor’s bonds, expended in reliance upon ASPA’s implied promise to execute a contract for the striping project.
B. Punitive Damages
We have awarded punitive damages to punish.defendants and to deter others from committing similar wrongs where we have found that the elements of fraud, malice, gross negligence, or oppression mingle in the controversy. Fiaui v. Faumuina, 27 A.S.R.2d 36, 42 (Trial Div. 1994); Letuli v. Le'i, 22 A.S.R.2d 77, 85-86 (Land & Titles Div. 1992).
To deter ASPA and Pele from wantonly, arbitrarily, and abusively wielding its public procurement power in the future, we award Samoa Development punitive damages of $5,000.00.
C. Attorney’s Fees
The general rule is against recovery of attorney’s fees by a party which incurs them in enforcing a claim against another. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28, 41 (Trial Div. 1994). We have, however, awarded attorney’s fees where required by statute, or where an opposing party has acted wantonly, oppressively, or in bad faith. Fiaui, 21 A.S.R.2d at 42; Samoa v. Gibbens, 3 A.S.R.2d 121, 123 (Trial Div. 1986).
ASPA and Pele acted arbitrarily and in bad faith. Their rescission in spite of Samoa Development’s efforts to procure contractor’s bonds, of which efforts they were made fully aware, was against courtesy and' custom. We thereby award Samoa Development $1,500 in attorney’s fees.
Order
ASPA and Pele are jointly and severally liable to Samoa Development for:-
1. $6,989 in reliance damages,
2. $5,000 in punitive damages, and
3. $1,500 in attorney’s fees.
ASPA and Pele shall forthwith remit to the Clerk of the Court a total $13,489 for disbursement to Samoa Development.
It is so ordered.
A.S.C.A. § 15.0102(12) enables ASPA to:
[CJontract for the procurement of supplies, equipment, materials, personal services other than by employees, and construction with any public or private entity upon terms and conditions as it finds necessary to the full and convenient exercise of its purposes and powers, subject to all applicable laws and rules of American Samoa.
Implicitly at least, the SEB must also have found that all three bidders were responsible and reasonable, as well as responsive, as required by A.S.C.A. § 12.0211(g).
Copies of the bonds would have been binding between the surety and contractor. Courts must give effect to a contractor’s bond of the ordinary type as a simple contract expressing the intention of the parties. Hosp. for Women of Md. v. U.S. Fid. and Guar. Co., 11 A.2d 457, 459 (Md. 1940) (superseded by statute on another matter as stated in Atl. Sea-Con., Ltd. v. Robert Darin Co., 560 A.2d 592, 597 (Md. Ct. App. 1987). Where the objective language used by the parties indicates their intent to be bound by the contract, or by the bond in this case, we will give that language effect. See, e.g., Record Club of Am., Inc. v. United Artist *181Records, Inc., 890 F.2d 1264 (2d Cir. 1989); Hunt Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274 (2d Cir. 1989). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486705/ | OPINION AND ORDER
Petitioners National Pacific Insurance Company, Ltd. and William Reardon Law Offices, Inc., (“NPI-LOI”), filed its Petition for Injunctive Relief with this Court on July 25, 2001, seeking limited judicial review of a certain compensation order in favor of William Reardon (“Reardon”) issued by the Workmen’s Compensation Commissioner (“Commissioner”).
Petitioners NPI-LOI also filed a request for a hearing on appeal with the Office of the Administrative Law Judge (“O.A.L.J.”) under certain sections of the Administrative Law Judge Act of 1998 (“A.L.J. Act”), which address the Executive branch, administrative hearings appeals process. By stipulation of the parties, the jurisdictional questions of this controversy came on for early oral argument and subsequent submission of briefs addressing the O.A.L.J’s statutory authority with respect to conducting contested claims hearings before the Workmen’s Compensation Commission (“W.C.C.”) and reviewing Commission compensation orders which have been appealed. All parties submitted briefs and we have carefully considered the parties’ positions on this jurisdictional issue.
For purposes of deciding this narrow issue of jurisdiction, we will examine and address Petitioner MPI-LOI’s Summary Judgment Motion in light of their position that the A.L.J. Act divested the Commissioner of subject matter jurisdiction to hear and decide contested claims under the Workmen’s Compensation Act, or alternatively, entitles NPI-LOI to a “trial de novo” before the A.L.J. on appeal.
Standard of Review
Summary judgment is appropriate only when the pleadings and supporting documents show “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” T.C.R.C..P. 56(e); Etimani v. Samoa Packing Co., 19 A.S.R.2d 1, 4 (Trial Div. 1991). The court must view the pleadings and supporting documents in the light most favorable to the non-moving party. Amerika Samoa Bank v. United Parcel Serv., 25 A.S.R.2d 159, 151 (Trial Div. 1994); Ah Mai v. Am. Samoa Gov’t (Mem.), 11 A.S.R.2d 133, 136 (Trial Div. 1989). If the moving party makes a prima facie case that would entitle movant to a directed verdict if uncontroverted at trial, the burden shifts to the adverse party, who must “set forth specific facts showing that there is a genuine issue for trial.” T.C.R.C.P. 56(e).
*188Facts
The parties are in general agreement with the facts in this matter. For purposes of this motion we summarize those pertinent facts to be as follows. Reardon suffered a stroke on August 28, 1997 while employed by his incorporated law practice. Reardon filed a claim for workmen’s compensation benefits with the Commissioner on September 10, 1997. The Law Office, Inc. and its insurer, N.P.I., contested the claim. A contested claim hearing was held, lasting several days before the Workmen’s Compensation Commission during May and June 1999, with a final decision and compensation order in Reardon’s favor being issued by the Commissioner on June 25, 2001.
During this protracted administrative process, the Legislature enacted an administration request bill known as the Administrative Law Judge Act of 1998 duly endorsed by the Governor on October 7, 1998. Through some delays, an actual administrative law judge was not appointed and confirmed under this Act until March 16, 2000. The Court now considers the application of the A.L.J. Act’s language to these facts.
Overview
Administrative agency jurisdiction is nothing more than the clear grant of power by law for an agency administering certain statutes to hear and decide controversies between parties arising out of the agencies lawful scope of administrative activities. 2 Am. Jur 2d Administrative Law §§ 274, 275. In its broadest sense, agency jurisdiction is generally the power granted to a particular department, board or commission of government to effectively administer the laws enacted by the Legislature under that agency’s authority. It is reflective of the separation of powers embodied in the Constitution under which the Legislature enacts enabling legislation to establish agencies within the Executive branch to effectively enforce and administer such laws that the Legislature enacts and entrusts to that agency to carry into effect. These administrative agencies are statutory creations and must adhere strictly to those statutes for their authority. Davidson v. D.C. Bd. of Medicine, 562 A.2d 109, 112 (D.C. App. 1989); see also Springville Cmty. Sch. Dist. v. Iowa Dept. of Pub. Instruction, 109 N.W.2d 213, 215 (1961).
The American Samoa Legislature provided a general set of administrative procedures and practices by enacting the Territory’s Administrative Procedures Act of 1969 (“A.P.A.”) A.S.C.A. § 4.1001 et seq. The A.P.A. establishes the general procedures which all A.S.G. departments, boards, and commissions must follow when empowered to act as agencies with rule-making or contested case decision making *189authority. The hearing requirements under the A.P.A., to be conducted under minimal due process requirements and relaxed rules of procedure and evidence, are set forth in A.S.C.A. §§ 4.1025-4.1037 of the A.P.A., which contemplates the use of a “hearings officer” (the administrative law, generic equivalent of “administrative law judge”). A.S.C.A. § 4.1032(5).
Included within the A.P.A. is the right of an aggrieved party, who has exhausted the administrative decision making process, to seek limited judicial review of an agency’s final decision before the Appellate Division of the High Court. A.S.C.A. §§ 4.1040-4.1044. The Legislature has carefully restricted the Judicial Branch’s role in reviewing administrative decisions. The Court must, in most instances confine its review to the record and decision as developed and issued by the agency. The Court may not substitute its judgment on the weight of the facts for that of the agency and the Court shall give appropriate weight to the agency’s experience, technical competence and specialized knowledge. The Court must first determine if substantial rights of the aggrieved party have been prejudiced by the agency’s decision, but even with such a finding, the Court may only reverse, modify or remand the agency’s decision if it finds the decision was unlawful, clearly erroneous, or arbitrary, capricious or characterized by an abuse of discretion.
Although the A.P.A. generally applies to the administrative procedure process for all agencies, the Legislature has recognized that special circumstances affecting particular agencies require special agency powers or practices cdupled with specialized forms of expedited, but limited, judicial review of such agencies’ decisions. Compensation orders issued by the Workmen’s Compensation Commission are immediately reviewable through injunctive proceedings against the Commissioner brought before the Trial Division of the High Court. Immigration Board decisions receive expedited limited judicial review under appeals before the Appellate Division of the High Court in which the Board is the named respondent.
Discussion
N.P.I.-L.O.I. has moved this Court for summary judgment based solely upon the language appearing in the A.LJ. Act of 1998, which N.P.I.L.O.I. argues grants the A.L.J. exclusive subject matter administrative jurisdiction to hear and decide contested claims filed before the Workmen’s Compensation Commission. Alternatively, this party urges us to find that even if the Commission had authority to issue a compensation order, the Act requires that the A.LJ. conduct a completely new hearing on the controversy under Judicial Branch mies of evidence and civil procedures. We disagree.
*190A. Exclusive Subject Matter Administrative Jurisdiction
The effective scope of any legislative act is limited to the subject embraced in its title and matters properly connected thereto. REV. Const, of Am. Samoa, art. II, § 16. Existing statutes may not be revised by reference to title; the act, section or subsection of law being revised must be set forth at length as amended. Rev. Const. of Am. Samoa, art. II, § 17. The judicial power of the American Samoa Government shall be vested in the High Court, the District Courts and such other courts as created by law. REV. CONST. OF AM. SAMOA, art. Ill, § 1. Within this constitutional framework we next examine the meaning and legal effect of the language in the A.LJ. Act of 1998 cited by petitioners NPI-LOI.
The title of the Act states:
An Act providing for the creation of the Office of administrative law judge, to decide administrative decisions of department, offices, agencies, boards or commissions of the Government of American Samoa: Amending sections 7.0102, 7.0110, 32.0341, 320344, 32.0345 ASCA: And creating a section 7.0104 A.S.C.A. and Chapter 05 under Title 4 A.SC.A.
It contains the subject of the Act and lists 5 sections of statutory law being amended along with a new section of law being created and a new chapter of law for the O.A.L.J. also being created. Significantly, the Act’s title does not include any reference to the Administrative Procedures Act or, more particularly to the issue at hand, any reference to the Workmen’s Compensation Act.
The body of the bill begins with the amendments listed in the title which set forth at length those statutes being amended by the Act, and involving only two particular agencies of government, being the Personnel Advisory Board (P.A.B.) and the Wage and Hour Board. Section 1 and 2 of the Act repeals the authority of the P.A.B to hear A.S.G. employee disputes, and creates other duties for the P.A.B. and the Director of Manpower Resources. The new section of law created by the Act, A.S.C.A. § 7.0104 appearing as section 6 of the Act, transfers the former final authority of the P.A.B. to hear A.S.G. personnel disputes to the A.L.J. for “... hearing and disposition in accordance with regulations of the American Samoa Government.” These sections, embraced in, or. related to the Act’s title and set forth at length in the body of the Act, reveal the Legislature’s clear intent to transfer the final administrative agency hearing authority of the P.A.B. to the A.LJ.
Sections 3, 4, and 5 of the Act respectively amend A.S.C.A. §§ 32.0341, 32.0344 and 32.0345. All are listed in the Act’s title and set forth at *191length as amended in the body of the Act. Unlike the previous sections of the Act which substituted the administrative authority of the A.L.J. for the administrative authority of the P.A.B., Sections 3, 4, and 5 of the Act substitute the administrative, Executive branch agency O.A.L.J. for the Judicial Branch/High Court of American Samoa. Left otherwise unamended in these sections are the judicial powers of issuing permanent or temporary injunctions and awarding judgment on a legal action including damages. In addition, the language of Section 5 insulates certain orders issued by the A.L.J. against private employers from judicial review on the underlying issue of the A.L.J.’s authority to act in such a capacity.
We need not decide herein the questionable constitutionality of these three sections, but we do note our concern. Although the Legislature has the limited, constitutional authority to replace certain judicial proceedings with administrative contested case proceedings, it may not invest an administrative hearings officer with more than quasi-judicial authority. See State ex rel. Keasling v. Keasling, 442 N.W.2d 118, 121 (Iowa 1989).
The bulk of the Act is found in Section 7 which establishes the O.A.L.J. It is these sections of law which are in dispute, but which may best be interpreted by reference to the previously discussed sections, above.
After carefully comparing the various provisions of the A.L.J. Act to determine the Legislature’s intent and noting that the Revised Constitution prohibits an inference that the Legislature intended to revise other regulatory statutes that were not set forth as amended in the Act, we determine that the broad language requiring a “trial de novo” in all proceedings before the A.L.J. (Section 4.0607 of the Act) is limited in application to the above mentioned sections 1-5 of the Act. With the possible exception of the A.L.J. conducting the final administrative hearing in the administrative rule procurement bid dispute process under Section 4.0604(e) of the Act, this Act provides no other constitutionally permissible authority for this independent administrative agency to conduct a “trial de novo” as an “appeal” from the final administrative decision of another agency of government.
Section 4.0607 of the Act reads as follows:
4.0607 Rules of procedures and evidence.
(a) Proceedings before the administrative law judge shall be a trial de novo notwithstanding the nature of the controversy or dispute, and it shall be the obligation of the judge to preserve as good a record as possible for purposes of appeal.
(b) In proceedings before the administrative law judge, the *192Rules of Civil Procedure and Rules of Evidence applicable in the High Court of American Samoa shall be followed as closely as practicable. In that event, whenever the word High Court shall appear in said mies, the word Administrative law judge shall be substituted therefor. These rales may be supplemented by the administrative law judge with any additional rules promulgated in accordance with provisions of the Administrative Procedures Act.
Yet the primary function of the O.A.L.J., as set forth under subsections (a) and (f) of Sec. 4.0502 of the Act, is facially incompatible with the requirements of 4.0607.
4.0602 Administrative law judge-Office created-Qualifications.
(á) The office of administrative law judge is created as an independent agency of the Executive branch of government. The head of this office shall be known as the administrative law judge. In a contested case, as defined in 4.1002, or other grievance or controversy before any agency, as defined in 4.2001, the administrative law judge shall conduct and either make or recommend decisions in original proceedings, in accordance with the Administrative Procedures Act 4.1025-4.1037. Any agency may utilize the administrative law judge to conduct or otherwise assist its authorized rale making under 4.1001-4.1020.
(f) The administrative law judge shall adopt uniform rules governing the procedures for the operation of his office in accordance with the provisions of the Administrative Procedures Act.
An A.L.J. cannot conduct an original contested case proceeding under the A.P.A. by conducting a “trial de novo” under Judicial Branch rales and procedures. Clearly a “trial de novo” can only be conducted by the A.L.J. where there was a prior administrative decision or hearing and the A.L.J. has been specifically authorized by constitutionally enacted legislation to conduct and decide a final administrative hearing on a contested case.
In all other functions carefully established for the A.L.J. as set forth in 4.0602(a) above, the A.L.J. functions as an agency hearing officer under the A.P.A. See A.S.C.A. § 4.1032(5). The A.L.J. follows such administrative practices as required by the A.P.A. or as supplemented by the particular laws or rales of the agency for which the A.L.J. is conducting a contested case proceeding.
*193If compatible with the rules and statutes creating or implementing that agency, the A.L.J. may, as allowed under Section 4.0602(a) of the Act, hear and decide contested cases in original proceedings. If the Legislature has directed by statute the final agency decision-making power to be exercised only by a superior agency officer, such as its director, or by its governing board, commission or chief officer thereof, the A.LJ. is allowed only to hear and recommend a decision in a contested case with the agency director, board, etc. so that the agency head can make a final, informed, agency decision as mandated by law.
Petitioner NPI-LOI appears to argue that the A.LJ. Act be more broadly construed by this Court. More particularly, UPI-LOI urges this Court to find that the Legislature intended to confer upon the O.A.LJ. exclusive administrative agency subject matter jurisdiction to hear and decide contested workmen’s compensation claims under Section 4.0604(a) of the Act. Said section reads:
4.0604 Jurisdiction of the administrative law judge.
The office of administrative law judge shall have jurisdiction to conduct hearings and issue judgments, decisions, orders or decrees with regards to the following matters:
(a) Claims for workmen’s compensation in accordance with the procedures set forth in sections 32.0635 to and including 32.0646. All other authorities of the workmen’s compensation commission under chapter 06 of Title 32 A.S.C.A. shall remain with the commission.
As required by the Revised Constitution, for the Legislature to lawfully transfer the existing authority of the Workmen’s Compensation Commission, it must, as it did in the A.L.J. Act with the P.A.B., include such sections of law and the subject matter in the title of the Act and set forth such sections or subsections of law so amended at length within the body of the Act. What the Legislature chose to do instead, for the Workmen’s Compensation Commission, was simply make the A.LJ. legally available to the Commission to conduct contested claim hearings under existing, statutorily prescribed, mies of administrative practices and procedures. The statutory authority of the Commission to do all legal things necessary to fulfill its agency mandate by the Legislature remains unchanged. How the Commission chooses to utilize the AL J. in such proceedings has been left for the Commission to decide and implement, not the O.A.LJ. The Legislature has very clearly indicated the A.L.J. can be so used by the Commission and chose, in marked contrast to its approach with Personnel Advisory Board, not to transfer the commission’s administrative agency subject matter jurisdiction to the *194O.A.LJ. For this Court to infer otherwise would require a finding the Legislature acted unconstitutionally. We cannot so hold.
B. Required Trial Dp. Novo
Next, NPI-LOI posit that notwithstanding the Commission’s clear, unamended, statutory authority to issue compensation orders, Petitioners are entitled to a “trial de novo” before the A.LJ, under Section 4.0607 of the A.L.J. Act because Section 4.0604(g), requires all administrative appeals to be heard first by the A.LJ. and, under 4.0607 of the Act, such “appeals” must be conducted as a “trial de novo.”
[4.0604](g) All appeals from administrative rulings or decisions of any administrative agency, except those matters specifically exempted herein or by statute of a department office, agency, commission board or committee of the Executive branch or the American Samoa Government shall first be made to the office of administrative law judge. Decisions of the administrative law judge may be appealed to the appellate division of the High Court of American Samoa.
As discussed above, the scope of the A.LJ. Act is constitutionally limited to objects embraced in its title and those sections of law set forth as amended within the body of the Act. Thus narrowed, A.S.C.A. § 4.0604(g) applies, if at all, only to those two, possibly three, agencies whose enabling statutes or administration rules were duly amended in the body of the Act.
An “appeal” of a final agency decision in a contested case results, under the A.P.A., or other specialized agency statutes, with a division of the High Court conducting a limited review of the agency’s decision with the Court being required to give due deference to that agency’s experience and special competence. Neither the A.P.A. nor other statutes, such as this Court’s limited judicial review powers of compensation orders under A.S.C.A. § 32.0652, governing judicial review of administrative decisions or orders have been constitutionally amended or altered by the enactment of the A.LJ. Act. Indeed, subsection 4.0604(g) of the Act, supra, expressly preserves this statutory appeals process to the High Court by excepting all such appeals from that subsection’s application.
We do not need to speculate as to how the Legislature may employ the O.A.L J. in a particular agency’s decision review process in the future when amending a particular agency’s statutes. For purposes of deciding this motion, we simply are not persuaded the Legislature intended the painstaking labor of the parties, including the Commission, to be legally voided and to require the injured claimant to undergo a new trial before a *195separate administrative agency where he must completely reprove his case under different procedures and rules. Until and unless the Workmen’s Compensation Act is duly amended by the Legislature, this Court retains the exclusive and express jurisdiction to review that agency’s compensation orders for legal sufficiency. As such, Petitioners claim of a right to a “trial de novo” before the A.L.J. is denied.
Although not required to be reached in the decision of this motion, this Court does note its concerns over the somewhat cavalier use of indicia of judicial powers throughout the A.L.J. Act. Judicial powers can only be exercised by the Judicial Branch of the American Samoa Government under the Revised Constitution of American Samoa. The purported investiture of the A.L.J. throughout the Act with authority to issue “judgments” or “decrees” or even to conduct a “trial” de novo are inappropriate within the context of executive branch administrative agency proceedings. Even the use of the term “jurisdiction” in the Act has proven to be misleading to counsel in this case. It is likewise confusing to the general public to call an administrative agency a “court of record” and require an executive branch agency of government to conduct certain hearings under the Judicial Branch’s specialized Rules of Civil Procedure and Rules of Evidence (after, of course, the required editing set forth in the Act of substituting “Administrative Law Judge” for the “High Court”).
The Act’s attempts to substitute the O.A.L.J. for the Appellate Division of the High Court in reviewing certain Immigration Board decisions is also noted with suspicion. The most disturbing aspects however, are sections 3, 4, and 5 in which the Legislature, while leaving all judicial powers contained therein unchanged, blandly substituted “the administrative law judge” for “High Court of American Samoa.” Although we are now more enlightened as to why the A.L.J. was required by the Act to conduct certain hearings under High Comí Civil Procedure and Evidence Rules, we stress that the exercise of such traditionally Judicial Branch functions as “awarding judgments for plaintiffs,” or issuing “a permanent or temporary injunction decree or restraining order” by the A.L.J. as contemplated under these sections is constitutionally suspect.
Conclusion
The A.L.J. Act confers authority to the O.A.L.J. to conduct de novo hearings in those limited situations where the A.L.J. has been clearly designated by the Legislature as the final administrative agency decision maker, (e.g. in ASG employment disputes and procurement bidding process disputes). In all other contested case matters before an agency having subject matter administrative jurisdiction over the dispute, *196the A.L.J. fimctions as an agency hearings officer and conducts hearings under the A.P.A. or such special statutes or rules which apply to that particular agency. As authorized or required under the enabling legislation establishing the agency, the A.L.J. may conduct hearings on and decide or recommend decisions for agency contested cases. Final agency decision-making responsibility remains where vested by the Legislature under the enabling statutes. In the instant matter, the Workmen’s Compensation Commissioner is vested with that authority by law.
Final agency decisions are subject to limited judicial review in most instances before the Appellate Division of the High Court under sections A.S.C.A. §§ 4.1040-4.1044 of the Administrative Procedures Act or as may be particularly provided in the enabling statutes of a particular agency as directed by the Legislature. The authority, powers, and duties of the A.L.J. are administrative in nature and limited to legitimate Executive branch fimctions. Judicial power, and the exercise thereof, is constitutionally reserved exclusively for the Judicial Branch by the Courts of Law established under the Revised Constitution of American Samoa.
We therefore find that the compensation order issued in the instant matter by the Commission to have been made by the agency of government statutorily authorized to make final administrative agency decisions involving this subject matter. Until otherwise amended by the Legislature pursuant to constitutional requirements, the Workmen’s Compensation Act, including the particularized judicial review procedures authorized therein for exercise by this Court, remains in full force and effect.
Motion for summary judgment denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486706/ | OPINION AND ORDER
Plaintiffs Ho Pyo Hong (“Ho Pyo”) and Aotearoa Hong (together “the Hongs”) initiated this in rem action against defendant vessel Chung Yong #21 (“Chung Yong”) to collect a portion of the in personam judgment rendered in Ho Pyo’s favor in Korea Deep Sea Fisheries Association v. Hong, CA No. 78-92, slip op. (Trial Div. Jan. 9, 1997). The Hongs’ claim that the judgment against the Korea Deep Sea Fisheries Association (“KDSFA”) entitles them to in rem judgment or attachment against the vessels owned by members of KDSFA, and specifically against the Chung Yong for supplies in the amount of $7,517.63. The court holds for the Hongs.
Facts
In 1992, KDSFA brought suit against Ho Pyo, CA No. 75-92, alleging debts for failure to fulfill ship supply contracts. Ho Pyo filed a counterclaim for unpaid loans to KDSFA and unpaid invoices to KDSFA vessels. On January 9, 1997, judgment was rendered in personam for Ho Pyo in the amount of $1,339,344.05. The Chung Yong was one of the KDSFA vessels with outstanding invoices. This claim is based on four invoices, one dated August 24, 1990, and three dated August 31, 1990.1 The invoices were for food supplies and other provisions, such as liquor and tobacco, which were delivered to the Chung Yong by the Hongs.
Following the judgment in CA No. 78-92, KDSFA shut down its operations in American Samoa on November 6, 1997. In Saeng Lee, the former manager of KDSFA in American Samoa, has since established a new agency in the territory to effectively continue with these operations. In order to collect the debt included in the judgment in CA No. 78-92, the Hongs had the Chung Yong arrested on March 3, 1998, after it *200entered Pago Pago Harbor. On March 4, 1998, the Hongs and the Chung Yong’s local agent entered into a stipulation under which the Chung Yong was released upon the deposit of $10,000 into the Court’s registry.
Discussion
A. Jurisdiction
This matter is properly before this Court. The Court has both common law general jurisdiction and admiralty jurisdiction. Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64, 69-70 (App. Div. 1987); Sec. Pac. Nat'l Bank v. M/V Conquest, 4 A.S.R.2d 59, 61 n.1 (Trial Div. 1987). Because of the Court’s dual jurisdiction, the case could lie in this Court on either of two supplemental rales for admiralty and maritime claims, T.C.R.C.P. B (Attachment and Garnishment) or C (Action in Rem). The difference between the two is the difference between a common law quasi-in-rem action to answer for the in personam judgment in CA No. 78-92, Rule B, and an admiralty law in rem action on a maritime lien for the provision of supplies, Rule C. The Chung Yong was properly seized for a Rule C in rem proceeding, which the Hongs fully argued before the court. We will, however, consider this action as one that concerns the execution of a civil judgment through Rule B attachment against the property of a judgment debtor, an action which perfects a lien against the property. See Diocese of Samoa Pago Pago v. K.M.S.T., Inc., 18 A.S.R.2d 67, 69 (Land & Titles Div. 1991). The discretion of the court to proceed under Rule B does not destroy the proper seizure of a vessel. The property properly attached was the Chung Yong, its gear, nets, and appurtenances.
Our decision to decide this action on Rule B attachment and partnership liability grounds does not reflect any judicial determination as to the Rule C in rem claim, nor the existence of a maritime lien. The successful Rule B attachment makes it unnecessary to reach those other issues at this time. However, the Hongs presented valid alternative arguments, and we reserve opinion on them. We proceed from this position.
B. Res Judicata Effect of CA No 78-92
In CA No. 78-92, this Court found that KDSFA, as it did business with Ho Pyó, was “a legal entity,” that it represented itself as “an association of boat owners,” and that equity mandated it be estopped from denying its legal status. Korea Deep Sea Fisheries Ass’n, 31 A.S.R.2d at 83.2 This Court has therefore already determined that *201KDSFA is not merely an agent for the vessels under its control. It is a business entity with a vested ownership interest in these vessels. Hence, we will treat KDSFA as a legal entity in this action, and further determine that KDSFA is a partnership of its members and that principles of partnership liability thus apply to this action.
Full faith and credit requires this court to respect the res judicata effect of an earlier judgment in deciding the same issues presented in an action currently litigated. U.S. Const., Art. IV, § 1; In re A Minor Child, 28 A.S.R.2d 33, 35 (Trial Div. 1995): Res judicata applies to a “final” judgment between the “parties” or those in privity with them. Restatement (Second) of Judgments § 17 (1988); Puailoa v. Estate of Lagafuaina, 19 A.S.R.2d 40, 46 (App. Div. 1991). The judgment in CA No. 78-92 is a full and final judgment of this Court. KDSFA and Ho Pyo were both parties to CA No. 78-92, and KDSFA is estopped from denying the appropriate application of res judicata on the issues in this action.
C. KDSFA as a Partnership
A partnership is a “business owned by two or more persons that is not organized as a corporation. A voluntary contract between two or more competent persons to place their money, effects, labor, and skill, or some or all of them, in lawful commerce or business, with the understanding that there shall be a proportional sharing of the profits and losses between them.” Black’s Law Dictionary 1120 (6th ed. 1990); see also Meehan v. Valentine, 145 U.S. 611, 618-19 (1892). While a contract is needed for a partnership to exist, this contract may be implied from the conduct and circumstances alone. Temple v. Temple, 365 N.W.2d 561, 566 (S.D. 1985); Yoder v. Hooper, 695 P.2d 1182, 1187 (Colo. Ct. App. 1984). One of the fundamental tests to determine the existence of a partnership is whether there existed a community of interest among the parties for business purposes. 59A Am. Jur. 2d Partnerships § 157 (1987).
The evidence in this action established that between 1990 and 1997 the vessel was owned by Daerim Corporation (“Daerim’), a Korean corporation, and that Daerim was a member of KDSFA. Further, Daerim placed their property in lawful commerce in combination with the other *202members of KDSFA. The members expected to and did receive a proportional share of the profits from the venture. The KDSFA office in American Samoa was not operating solely as an agent for the individual vessels it served, but in fact it controlled the activity of KDSFA members’ vessels, the catch, sales, and financial affairs of those vessels, and the remittance of profits back to the KDSFA members in Korea. A “community of interest” existed amongst the KDSFA members for their operations in American Samoa. KDSFA did not produce any credible evidence to refute the existence of a partnership. There was not any sort of fee-paying arrangement between the KDSFA members and KDSFA’s local agent in American Samoa that would allow a conclusion other than finding that there was an agreement to receive a share of the profits of the partnership. Based on the records introduced into evidence, it appears that KDSFA remitted profits to the partnership members. There is no credible evidence that Daerim did not receive a proportional share of these profits. This collection of actions shows, and we hold, that at the very least an implied partnership contract existed between the members of the KDSFA based on their conduct and the circumstances of their affairs in American Samoa.
D. T .iability for Partnership Debts
A third party doing business with a partnership may hold the partnership liable as a legal entity for any debts created in reliance on such partnership; each member of the partnership is personally or severally liable for the partnership debts. Texaco, Inc. v. Wolfe, 601 S.W.2d 737, 740-41 (Tex. Ct. App. 1980); O.L. Holt v. Owen Elec. Supply, Inc., 722 S.W.2d 22, 24 (Tex. Ct. App. 1986). General partners are jointly and severally liable for any judgment debt of the partnership. Kaneco Oil & Gas, Ltd. v. Univ. Nat’l Bank, 732 P.2d 247, 250 (Colo. Ct. App. 1986). The Hongs clearly did business with KDSFA vessels in reliance on KDSFA being a partnership. There is no contrary evidence, and it is likely the Hongs would not have extended credit for supplies in such large amounts to various Korean fishing boats, including but not limited to the Chung Yong, if not for the security that KDSFA would be liable for these debts and that action would lie against KDSFA’s and its partner’s assets if necessary. As such, Daerim, as a partner in KDSFA, is jointly liable for the judgment debt and the vessel can be rightly seized to satisfy the partnership debt.
E. Fule B — Attachment and Garnishment
“With respect to any admiralty or maritime claim in personam a verified complaint may contain a prayer for process to attach the defendant’s goods and chattels.” T.C.R.C.P. B(1). The valid in personam judgment in CA No. 78-92 allows attachment of the Chung *203Yong as property belonging to Daerim, a KDSFA partner. The Chung Yong points out that there was no affidavit accompanying the complaint, as needed for Rule B attachment. However, as discussed above, the Chung Yong was correctly seized under the Hongs’ Rule C in rem claim and, therefore, was properly before the court for Rule B attachment purposes as well.
F. T -aches and Merger
The Chung Yong has raised laches as a defense. Laches is an affirmative defense that requires a finding that a plaintiff delayed inexcusably or unreasonably in filing suit and that delay was prejudicial to the defendant. Nat’l Wildlife Fed’n v. Burford, 835 F.2d 305, 318 (D.C. Cir. 1987). The decision on whether to apply laches depends upon the particular circumstances of the case at question. Id. A court must weigh all pertinent facts and equities. A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1028 (Fed. Cir. 1992). However, in order to invoke the laches defense, a defendant has the burden of proving two factors: (1) the plaintiff delayed filling suit for an unreasonable and inexcusable length of time from the time the plaintiff knew or reasonably should have known of its claim against the defendant, and (2) the delay operated to the prejudice or injury of the defendant. Id.; Costello v. United States, 365 U.S. 265, 282 (1961).
The Chung Yong has not proven either of the two requirements for laches. An action to enforce the judgment of CA. No. 78-92 could not have begun before the judgment was entered on January 9, 1997. The Hongs commenced this action on March 3, 1998, less than 14 months later. This is not an unreasonable and inexcusable length of time. The defense of laches is therefore inapplicable.
The Chung Yong has also claimed the defense of merger. The general rule of merger provides that “when a final and personal judgment is rendered in favor of the plaintiff, the plaintiff cannot thereafter maintain an action on the original claim or part of the original claim, although he may be able to maintain an action upon the judgment. Restatement of Judgments § 18 (1982). As we are treating this case as an action upon the judgment in CA No. 78-92, the rule of merger also does not apply.
G. Statute of T,imitations
The Chung Yong has urged the running of the statute of limitations as a defense. This action was timely brought and does not violate the statute of limitations. A.S.C.A. § 43.0120(5) provides that actions *204founded on a judgment must be brought within 10 years. This is an action to recover the award of a judgment against a member of the liable partnership, not a new action against a defendant that was or should have been known within the time period associated with the original claim. See Stancris v. Yang, CA No. 47-99, slip op. (Trial Div. Sept, 9, 1999). The judgment in CA No. 78-92 was entered on January 9, 1997, and this action was commenced on March 3, 1998, less than 14 months later. This action was therefore commenced well within the statute of limitations.
Order
The Hongs are awarded judgment in the amount of $7,777.73, plus interest at 6% per annum from January 9, 1997. The Clerk of Courts shall pay this amount to the Hongs from the $10,000.00 on deposit in the court’s registry. Any remainder shall be delivered to the Chung Yong’s attorney, who shall return the funds to the entity entitled to them.
It is so ordered.
The invoices total $7,777.73. The Hongs, however, claim only $7,517.63. There is no clear explanation for the discrepancy. The documents pertaining to the judgment in CA No. 78-92 do not provide an exact accounting of the sums used to reach the judgment amount. However, based on the evidence presented in this case, we find the amount of the judgment in CA No. 78-92 related to the Chung Yong for purposes of this action is $7,777.73.
“Here KDSFA did business with Hong as a legal entity. Moreover, KDSFA instituted the present action in its own name. Equity mandates *201that KDSFA be estopped from now denying its existence as a legal entity, rather than merely an agent, of its members. We thus find that KDSFA is a legal entity, with the capacity to sue and be sued on its own behalf.” Korea Deep Seas Fisheries Ass’n v. Hong, 31 A.S.R.2d 80, 83 n.1 (Trial Div. 1996). | 01-04-2023 | 11-18-2022 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.