LEAPAGATELE KESI, for himself and on behalf of
the PAEPAEULI
and LEAPAGATELE FAMILIES, Plaintiff/Counterdefendant,
v.
ISUMU LEAPAGATELE AND CHILDREN, FELETI KISONA,
TUSIGA MAILOTO, MATT LE`I, SESILIA VOLLRATH,
SEIGFRIED VOLLRATH, JR., GISELA VOLLRATH,
TELESIS ESPOSO, FAYE PUNOUAI DIONNE,
LA`AULI I. TUALATAMALELAGI, AMERIKA SAMOA BANK,
DEVELOPMENT BANK OF AMERICAN SAMOA, AFEIFEI AU`UPU
ISUMU, FILOITUMUA ISUMU, ESETA ISUMU, SIMATI LEALI`IE`E, TALIA TOA, FA`ASALELE
NE`EMIA, TUMEMA ROSELYN KIM, ALEXANDER KIM, IRENE KIM, TUVAELAGI VAIVAO JEONG,
SAU CHOI, VAIGA LOGO, AMERICAN SAMOA GOVERNMENT, TERRITORIAL REGISTRAR, and
DOES I-X, Defendants, [2ASR3d196]
and
SALFAIA
AKE HALA, PENELOPE TOETU, VASEGA SEUALUGA,
NOFOAIGA SEUALUGA, and LAGIULA KALEUATI,
Defendants/Counterclaimants.
______________________________________
TUMEMA KIM, ROSELYN KIM, ALEXANDER KIM,
IRENE KIM, VAIGA LOGO, and LAGIULA KALEUATI,
Cross-Claimants,
v.
TERRITORIAL REGISTRAR,
AND CHILDREN, Cross-Defendants.
______________________________________
SESILIA VOLLRATH, SEIGRIED VOLLRATH, JR.,
and GISELA J. VOLLRATH, Cross-Claimants,
v.
TERRITORIAL REGISTER,
AND CHILDREN, Cross-Defendants.
______________________________________
TUMEMA KIM, for herself and on
behalf of her CHILDREN, Plaintiff,
v.
PALAIA SUA MULIPOLA, FELENI SUA MULIPOLA,
and DOES I-IV, Defendants.
______________________________________
TUSIPASI TIAPULA, SAVALIGA
MASUNU,
and KOLOPA P. TUAISOSOPO for
themselves and
for the PAEPAEULI and
LEAPAGATELE FAMILIES, Plaintiffs,
v.
TUMEMA KIM and DOES I-V, Defendants. [2ASR3d197]
High Court of
Land and Titles Division
LT No. 10-91
LT No. 33-95
LT No. 35-95
January 16, 1998
Before
Counsel: LT
No. 10-91
For Plaintiff, Gata B. Gurr
For
Defendants/Cross-Defendants Isumu Leapagatele and children, Defendants/Counterclaimants/Cross-Claimants
Tumema Kim, Roselyn Kim, Alexander Kim, Irene Kim, and Lagiula Kaleuati, and
Defendant/Cross-Claimant Vaiga Logo, Afoa L. Su`esu`e Lutu
For
Defendants/Cross-Claimants Sesilia Volrath, Seigfried Volirath, Jr. and Glade
Vollrath, Marie A. Lafae1e
For
Defendants/Counterclai[m]ants Salafaia Kirkland, Matavi Sauni, Abe Hala,
Penelope Toetu, Vaseqa Seualuga, and Nofoalga Seualuga, Tuana`itau Tuia, L.P,
For
Defendant Amerika Samoa Bank, William H. Reardon
For
Defendant Development Bank of
For
Defendants/Cross-Defendants
For all other Defendants, Pro Se
LT No. 33-95:
For Plaintiff, Afoa L.
Su`esu`e Lutu
For Defendants, Gata B. Gurr
LT No. 35-95:
For Plaintiffs, Gata B. Gurr
For Defendants, Afoa L.
Su`esu`e Lutu
[1] Where a party dies during the pendency of a
case and such death is formally suggested upon the record, said action shall be
dismissed as to the deceased party if a motion for substitution is not made
within 90 days of the formal suggestion.
[2] The parties’ actual knowledge of another
party’s death, or mention of the death in court proceedings or pleadings is not
sufficient to trigger the [2ASR3d198]
running of the ninety[-]day period for substitution under T.C.R.C.P. 25(a)(1).
[3] Where no formal suggestion of death had been made upon
the record prior to the parties’ motion to dismiss for failure to timely
substitute, said motion triggered the ninety-day substitution period.
[4] The defense of lack of subject matter
jurisdiction is properly asserted under Rule 12(b)(1), not Rule 12(b)(6).
[5] The High Court is conferred with exclusive
trial jurisdiction over actions under the Government Tort Liability Act.
[6] A claimant must first present his claim to
the Attorney General and receive a final denial before he may bring an action
under the Government Tort Liability Act.
[7] Once the issue of subject matter
jurisdiction is raised, the burden of establishing it always rests on the party
asserting jurisdiction.
[8] Where Court lacked subject matter jurisdiction it
would not consider defense of expiration of the statute of limitations.
[9] The Attorney General’s failure to make a final
disposition of a claim within three months after it is filed may be deemed, at
the option of the claimant, a final denial of the claim.
[10] A Motion for Judgment on the Pleadings should be
granted only when the merits can be determined.
ORDER DENYING MOTION TO DISMISS COMPLAINT, GRANTING
MOTION TO SUBSTITUTE PARTIES, GRANTING MOTION TO DISMISS CROSS-CLAIM, DENYING
MOTION TO DISMISS CROSS-CLAIM, DENYING MOTION FOR JUDGMENT ON THE PLEADINGS BUT
DISMISSING CLAIM, AND SEPARATING ISSUE FOR TRIAL
This order
rules on several pending motions and directs a separate trial on the underlying
land title issue. The motions were heard on September 15 and 22, 1997.
I. Motion to Dismiss Complaint and for
Substitution of Parties
On July 25, 1997,
defendant/counterclaimant/cross-claimants Tumema Kim, Roselyn Kim, Alexander
Kim, and Irene Kim (“Kims”) moved to dismiss LT No. 10-91 on the grounds that
no motion for substitution was [2ASR3d199]
made within ninety days after plaintiff Leapagatele Kesi’s death, pursuant to
T.C.R.C.P. 25(a)(1). On August 8, 1997,
Tusipasi Tiapula, Savaliga Masunu, and Kolopa P. Tuiasosopo, plaintiffs in LT
No. 35-95, moved to substitute themselves as plaintiffs in place of plaintiff
Leapagatele Kesi in LT No. 10-91.
[1]
T.C.R.C.P. 25(a)(1) provides the means by which another party, or the deceased
party’s successors or representatives, may substitute proper parties for a deceased
party in pending litigation and the consequences of non-substitution. Rule 25(a)(1), in part, states:
Unless the motion for substitution is made not later
than 90 days after the death is suggested upon the record by service of a
statement of the fact of the death as provided herein for the service of the
motion, the action shall be dismissed as to the deceased party.
The ninety[-]day time limit for the filing of a motion
for substitution begins after the death is suggested upon the record.
[2] As the
rule states, the fact of death is suggested upon the record by the formal
process used for service of the motion itself.
The parties’ actual knowledge of the death, or mention of the death in
court proceedings or pleadings is not sufficient to trigger the running of the
ninety days. See, e.g., Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994) (reversing district
court dismissal based on failure to file timely motion to substitute
plaintiff’s estate and holding that a party must formally suggest the death
upon the record and serve other parties and nonparty successors and
representatives of the deceased with a suggestion of death in the same manner
as required for service of the motion in order to trigger the running of the
ninety days); 3B J. Moore, Moore’s
Federal Practice ¶ 25.06 [3] (2d ed. 1996) (“a formal suggestion
of death is absolutely necessary to trigger the running of the ninety days”).
[3] No
formal suggestion of death was made upon the record prior to the Kims’ motion
to dismiss. This motion triggered the ninety-day substitution period. However, the motion for substitution by
Tusipasi Tiapula, Savaliga Masunu, and Kolopa P. Tuiasosopo was timely filed
within the ninety-day period.
The Kims’ motion to dismiss to dismiss LT No. 10-91
will be denied. The motion by Tusipasi Tiapula, Savaliga Masunu, and Kolopa P.
Tuiasosopo to substitute themselves as plaintiffs in place of plaintiff
Leapagtele Kesi in LT No. 10-91 will be granted. [2ASR3d200]
II. Motion to Dismiss Cross-Claim of Sesilia Vollrath,
Siegfried Vollrath, Jr., and Gisela J. Vollrath
On August 21, 1997, defendants/cross-defendants
Territorial Registrar (“Registrar”) and American Samoa Government (ASG”) moved
in LT No. 10-91 to dismiss the cross-claim of defendants/cross-defendants
Sesilia Vollrath, Siegfried Vollrath, Jr., and Gisela J. Vollrath (“Vollraths”) for failure to
state a claim upon which relief can be granted, pursuant to T.C.R.C.P.
12(b)(6). The Registrar and ASG contend that the Vollraths have failed to
exhaust administrative remedies and thus have not satisfied jurisdictional
requirements to bring the claims, and that the two-year statute of limitations
in which to bring their cross-claim action against the Registrar and ASG has
expired. The Vollraths counter, in part,
that the Registrar and ASG submitted to the court’s jurisdiction and waived the
exhaustion requirement by answering the original complaint in 1991.
Some T.C.R.C.P. 12 defenses are waived if they are
neither asserted by motion under Rule 12, nor included in a responsive pleading
or an amendment to such pleading. T.C.R.C.P. 12(h)(1). A defense of failure to state a claim upon
which relief can be granted, however, “may be made in any pleading permitted or
ordered under 7(a) TCRCP, or by motion for judgment on the pleadings, or at the
trial on the merits.” T.C.R.C.P. 12(h)(2). Similarly, a defense of lack of
subject matter jurisdiction may be made at any time. T.C.R.C.P. 12(h)(3).
[4] Lack of
subject matter jurisdiction is appropriately asserted under Rule 12(b)(1), not Rule 12(b)(6). Because dismissal for failure to state a
claim under Rule 12(b)(6) is an adjudication of the merits of the action, the
court must possess subject matter jurisdiction in order to grant that relief,
2A J. Moore, Moore’s Federal Practice
¶ 12.07[2.-5] (2d ed. 1996).
[5-6] The
Vollraths’ cross-claim against the Registrar and ASG seeks money damages for
injury to or loss of property caused by the “negligent or wrongful act or
omission of any employee of the government while acting within the scope of his
office or employment.” Civil actions of
this nature are regulated by the Government Tort Liability Act. A.S.C.A. §§
43.1201-.1213. The High Court is
conferred with exclusive trial jurisdiction over such actions. A.S.C.A. §
43.1209. However, “[a]n action may not be instituted upon a claim
against the government for money damages for damage to or loss of property, . .
. unless the claimant has first presented the claim to the Attorney General and
his claim has been finally denied by the Attorney General . . .” A.S.C.A. §
43.1205. See Mataipule
v. Tifairnoana Partnership, Ltd.,
14 A.S.R.2d [2ASR3d201]
100, 101 (Trial Div. 1990) (“As a prerequisite to jurisdiction, the American
Samoa statutory scheme requires that a prerequisite administrative claim be
made and either denied or ignored for three months, at which time it is deemed
denied.”). The administrative claim prerequisite
also applies to counterclaims, cross-claims, and third-party complaints. Bryant v.
Southwest Marine of Samoa, Inc.,
22 A.S.R.2d 88, 89 (Trial Div. 1992).
[7] “Once
the existence of subject matter jurisdiction is challenged, the burden of
establishing it always rests on the party asserting jurisdiction,” 2A J.
[8] Because
we do not have subject matter jurisdiction, we decline to rule on the Rule
12(b)(6) aspect of the Registrar’s and ASG’s motion to dismiss, which asserts
the defense of expiration of the statute of limitations. Ehin v. National R.R. Passenger Corp., 732 F.2d 1250, 1257 (5th
Cir. 1984), cert. denied, 469 U.S. 982, 105 S. Ct. 387, 83 L.Ed.2d 322
(1984) (holding that dismissal premised upon both Rule 12(b)(1) and (b)(6) is
fatally inconsistent, because if the court lacks subject matter jurisdiction,
it cannot proceed to decide the merits of the action).
Since the Vollraths did not comply with the
administrative claim prerequisite, the court does not have subject matter
jurisdiction over their cross-claim at this time. The Registrar’s and ASG’s
motion to dismiss will therefore be granted for lack of subject matter
jurisdiction. [2ASR3d202]
III. Motion
to Dismiss Cross-Claim of the Kims, Vaiga Logo, and Laguila Kaleuati
On August 18, 1997, the Registrar and ASG moved in LT
No. 10-91 to dismiss the cross-claim of the Kims, Vaiga Logo and Laguila
Kaleuati for failure to state a claim upon which relief can be granted,
pursuant to T.C.R.C.P. 12(b)(6). Again,
the Registrar and ASG contend that the Kims, Vaiga Logo and Laguila Kaleuati
failed to exhaust administrative remedies and thus have not satisfied
jurisdictional requirements to bring the claims, and that the two-year statute
of limitations in which to bring their cross-claim action against the Registrar
and ASG has expired. The Kims, Vaiga
Logo and Laguila Kaleuati argue, in part, that their cross-claim is based in
equity as well as under the Tort Claims Act, and thus is still under the
jurisdiction of this court. In addition,
the Kims, Vaiga Logo and Laguila Kaleuati presented their claim to the Attorney
General on August 20, 1997.
Again, lack of subject matter jurisdiction is
appropriately asserted under Rule 12(b)(1), not Rule 12(b)(6). Because dismissal for failure to state a
claim under Rule 12(b)(6) is an adjudication of the merits of the action, the
court must possess subject matter jurisdiction in order to grant that relief.
2A J.
[9] As noted
previously, “[a]n action may not be instituted upon a claim against the
government for money damages for damage to or loss of property, . . .
unless the claimant has first presented the claim to the Attorney General arid
his claim has been finally denied by the Attorney General . . . .” A.S.C.A. §
43.1205. On August 18, 1997, when the Registrar and ASG filed their motion to
dismiss, the Kims, Vaiga Logo and Laguila Kaleuati had not yet filed their
administrative claim. However, on August 20, 1997, the Kims, Vaiga Logo and
Laguila Kaleuati fulfilled the filing prerequisite by submitting their claim to
the Attorney General. The Attorney
General’s failure to make a final disposition of a claim within three months
after it is filed may be deemed, at the option of the claimant, a final denial
of the claim. A.S.C.A. 13 43.1205(a).
Because three months have passed since the Kims, Vaiga Logo and Laguila
Kaleuati filed their claim, without the Attorney General acting of record on
it, the court’s jurisdiction over the action is apparently perfected. See
Mataipule, 14
A.S.R.2d at 107 (Trial Div. 1990) (“While a jurisdictional defect was present
when this suit was originally filed, that defect was cured by denial of the
claim.”).
We conclude, therefore, that the Kims, Vaiga Logo and
Laguila Kaleuati met the requirements of A.S.C.A § 43.1205, which give this
court jurisdiction over their cross-claim.
On this basis, the Registrar’s and [2ASR3d203]
ASG’s motion to dismiss will be denied.
If the Registrar and ASG wish to bring their motion again, based on the
statute of limitations issue, they may.
If this motion is filed, we will consider the parties’ arguments
concerning the statute of limitations at that time. In this regard, the parties should consider
the application of the recent decision in Bradcock v.
American Samoa Gov’t, 1
A.S.R.3d 42 (Appellate Div. 1997) to the facts in LT No. 10-91.
IV. Motion for Judgment on the Pleadings
On August 21, 1997, ASG moved in LT No. 10-91 for a
judgment on the pleadings, pursuant to T.C.R.C.P. 12(c), and dismissal with
prejudice of the claim against ASG by plaintiff Leapagatele Kesi, for himself
and on behalf of the Paepaeiili and Leapagatele families (“Leapagateles”). As with the Registrar’s and ASG’s motions
to dismiss, discussed above, ASG declares as grounds for a judgment on the
pleadings that the Leapagateles have failed to state an actionable claim. ASG argues that the Leapagateles failed to
exhaust administrative remedies and therefore have not satisfied jurisdictional
requirements to bring the suit, and that the two-year statute of limitations in
which to bring an action has expired.
[10] The
Leapagateles also did not effect the administrative claim requirements of
A.S.C.A. § 43.1205(a). As discussed
above, therefore, the court lacks subject matter jurisdiction over the
Leapagateles’ claim against ASG at this time.
Without subject matter jurisdiction, the court is unable to determine
the merits of the claim and to make a judgment on the pleadings. “Judgments on
the pleadings should be given only when the merits can be determined in that
manner. . . .” 2A J.
Therefore, ASG’s motion for a judgment on the
pleadings will be denied. However, because the court does not have subject
matter jurisdiction over the claim, the Leapagateles’ claim against ASG will be
dismissed.
V. Separate
Trial on the Underlying Land Title Issue
The court, on its own motion, pursuant to T.C.R.C.P.
42(h), will separate the trial on the underlying issue of whether the land at
stake in these consolidated actions was, and still is, the Paepaeuli and
Leapaqatele families’ communal land or was defendant/cross-defendant Isumu [2ASR3d204] Leapagatele’s individually
owned land prior to the transfer of portions of the land to any of the other
parties to these actions as Isumu Leapagatele’s successors in interest. The
remaining parties, both the individuals and banking institutions, have claims
to the land which are dependent on the validity of Isumu Leapagatele’s claim of
title to the land.
When the
amended complaint in LT No. 10-91 was filed on June 19, 1997, the parties and issues
in these actions became too numerous and unwieldy for a single trial. Hence, we believe that an initial trial of
the underlying land title issue would be more convenient for the parties and
may reach the ultimate resolution of these actions in a more expeditious and
economical manner. All parties may, of course, attend and participate in this
initial trial. They may present
admissible evidence on the underlying land title issue and cross-examine the
witnesses on this issue.
Order
1. The Kims’ motion
to dismiss LT No. 10-91 is denied.
2. The motion by Tusipasi Tiapula, Savaliga Masunu,
and Kolopa P. Tuiasosopo to substitute themselves as plaintiffs in place of
Leapagatele Kesi in LT No. 10-91 is granted.
3. The motion by the Registrar and ASG to dismiss the
Vollraths’ cross-claim in LT No. 10-91 is granted.
4. The motion icy the Registrar and ASG to dismiss the
cross-claim by the Kims, Vaiga Logo and Laguila Kaleuati’s in LT No. 10-91 is
denied.
5. ASG’s motion
for a judgment on the pleadings in LT No. 10-91 is denied. However, the Leapagatele’s claim against ASG
in LT No. 10-91 is dismissed.
6. Trial of the underlying land title issue is
separated from all other issues. The
trial on this issue will be held first.
Any party may move for the trial setting on this issue at any time.
It is so
Ordered.
**********
[1] The Vollraths’ argument that the Registrar and ASG
waived the administrative claim prerequisite is without substance. They cite Pago
Petroleum Products, Inc. v. American Samoa Power Authority, 10 A.S.R.2d 75, 81-86
(Appellate Div. 1986)[,] for the proposition that the jurisdictional
requirement of exhaustion of administrative remedies may be waived. As the court in Pago Petroleum pointed
out, however, an essential element of subject matter jurisdiction, such as the
administrative claim mandated by the Government Tort Liability Act, cannot be
waived.