TCW
SPECIAL CREDITS, INC., Plaintiff
v.
F/V KASSANDRA Z, OFFICIAL NO. 6553390,
Her Engines, Nets, Furniture, Etc., Defendant in Rem
and
KASSANDRA Z FISHING CO., Defendant in Personam
_________________________________
AND RELATED CLAIMS-IN-INTERVENTION.
High Court of
Trial Division
CA No. 92-96
[1]
Summary judgeent 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.
[2]
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.
[3]
When court is asked to deem certain facts established in movant’s favor as a
sanction for discovery violations, but such sanction would effectively work a
dismissal or judgment in movant’s favor, court will apply same standards as if
movant were directly seeking dismissal.
[4]
As a general principle, policy and due process concerns favor resolution of a
case on the merits.
[5]
Dismissal will only be ordered in response to Rule 37 violations as a last
resort, and only where less severe sanctions would not be effective.
[6]
The Trial Court Rules of Civil Procedure, used in American Samoa Courts, do not
follow Rule 53 of the Federal Rules of Civil Procedure regarding special
masters. [3ASR3d150]
[7]
Although deposition was rancorous and terminated prematurely, Court refused to
impose to impose artificial regulations of conduct beyond those already
provided by the Trial Court Rules of Civil Procedure, but instead warned that
such rules were to be followed.
Before KRUSE, Chief Justice, and TUA`OLO, Chief Associate Judge.
Counsel: For Plaintiff TCW, Craig Miller and Barry
For Plaintiffs-in-Intervention
Michael Datin, et al., William
Banning and William H. Reardon
For Defendant
For Intervenor A. Sardina, Brian
M. Thompson
For Intervenor Shell Guam, Inc.,
Tautai A.F. Fa`alevao
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT AND OTHER REQUESTED RELIEF
On
1. Plaintiff
TCW Special Credits, Inc.’s (“TCW”) Motion for Summary Judgment as to Amounts
Owed Crew on Trips Nos. 20-26, filed
2. TCW’s Motion to Quash Notice of Deposition, filed
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. [3ASR3d151]
4. TCW’s Motion for Order Governing Deposition Conduct
and for Sanctions For Discovery Misconduct, filed
5. TCW’s Motion for Approval of Settlements and
Assignment of Claims Between TCW, Clipper Oil and Shell Guam, filed
6. TCW’s Second Motion to Quash Notices of Crew
Depositions in
7. Defendant Kassandra Z’s (“Kassandra Z”) Motion to
Compel, filed
8. The Crew’s Motion for Order Issuing Reporters
Commission and to Allow De Bene Esse Depositions to be
Used for Trial, filed
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
[1-2] 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.
In 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).
[3] 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, 67 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] [3ASR3d153]
[4-5] Courts 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 [3ASR3d154]
judgment on this basis, however, is denied.
B. TCW’s
Motion for Order (1) 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.
[6] 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
[7] 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 [3ASR3d155] Motion for Order Governing Deposition Conduct and for
Sanctions For Discovery Misconduct is DENIED.
It is so Ordered.
***********
[1] This motion is addressed by separate order.
[2] This motion is addressed by separate order.
[3] 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