AINA SAOLUAGA NUA, in his
capacity as a member of and Speaker of the House of Representatives and
individually, TUILEFANO M. VAELA`A, in his capacity as a member of the Senate
and individually, and OTOMALESAU JOHN AR SUE,
in his capacity as a member
of the House of Representatives
and individually,
Plaintiffs,
v.
TAUESE P.F. SUNIA, as
Governor of American Samoa and individually, SPECIAL SERVICES CORPORATION,
TOGIOLA T.A. TULAFONO, as
Lieutenant Governor of
American Samoa and
individually, DOUGLAS J. JUERGENS, officially and individually, PATI FAIAI,
officially and individually, AMERICAN SAMOA GOVERNMENT, and JANE DOES 1-10,
jointly and severally, Defendants.
High Court of
Trial Division
CA No. 128-99
September 28, 2000
[1] T.C.R.C.P. 15(a) is
lenient, providing that a complaint may be amended freely when justice
requires, and applies when the purpose is to clarify standing; and denial of
leave to amend is proper only when amendment would be clearly frivolous, unduly
prejudicial, cause undue delay or is done in bad faith.
[2] Trial Court Rules
governing discovery are liberally construed in favor of discovery, and parties
opposing discovery have a heavy burden to show good cause why discovery should
be denied; good cause requires a showing that clearly defined and serious
injury, harassment, or the abuse of court processes would otherwise result;
good cause is not [4ASR3d235] by
showing that discovery may involve inconvenience and expense.
[3] T.C.R.C.P. 37(a)(4)
authorizes the award of reasonable expenses, including attorney’s fees, to a
party that successfully obtains a court order to compel discovery, and
sanctions may be imposed on the party failing to comply with discovery, or the
party’s attorney advising non-compliance, or both.
[4] Reconsideration of an
order is appropriate if the court is presented with newly discovered evidence,
or if it committed clear error, or if the initial decision was manifestly
unjust, or if there is an intervening change in controlling law.
Before
Counsel: For Plaintiff, Afoa L.S. Lutu, Legislative
Counsel, Arthur
Ripley, Jr., Counsel for the Senate, and
Christa Tsu-Hsiu Lin,
Assistant
Legislative Counsel
For Defendants, Fiti
A. Sunia, Assistant Attorney General
ORDER ON MOTIONS TO AMEND
COMPLAINT, TO COMPEL
DISCOVERY, FOR CONTEMPT, AND
FOR RECONSIDERATION
Procedural History
The present dispute arises
out of the purchase of property in
We granted the Legislators
summary judgment in our order on cross motions for the same, holding that the
Executives overstepped their constitutional authority in acquiring the CC, and
that the purchase agreement was therefore illegal. Nua v. Sunia, 4 A.S.R.3d 211 (Trial
Div. 2000). The purchase being
illegal, we declared it to be null and void, and granted the Legislators’
request for injunctive relief. Our order
was crafted to return the CC to its former owner and, as near as possible,
return the parties to the positions they occupied before the purchase.
The Executives filed a
motion for reconsideration on August 14, 2000, to which the Legislators
responded on September 6, 2000 with an [4ASR3d236]
rief. The Legislators filed four other motions on
August 30, 2000, including: (1) a motion for expedited hearing, (2) an
application for order to show cause re contempt, (3) a motion to compel
discovery, and (4) a motion for leave to amend complaint.
We declined to grant the
motion for expedited hearing. The other
three motions were set for hearing on the same day as the motion for
reconsideration. The hearing was duly
held on September 18, 2000, with counsel present.
Discussion
A. Motion to Amend Complaint
[1] The Legislators move to
amend their complaint under T.C.R.C.P. 15(a).
The Rule 15 standard is lenient, providing that the court shall give
leave to amend “freely when justice so requires.”
B. Motion to Compel Discovery
The Legislators served a
discovery request entitled “Request for Production of Documents and Things” on
the Executives, pursuant to T.C.R.C.P. 34, on June 21, 2000. The Executives failed to respond to this
request within the 30-day period mandated by Rule 34. Under Rule 34(b), this failure to respond
entitled the Legislators to move for an order compelling the Executives to
answer the request pursuant to T.C.R.C.P. 37.
On September 15, 2000, the
Executives filed a last-minute response to the Legislators’ discovery motion,
in which the Executives requested a stay of discovery under T.C.R.C.P.
26(c). The rule provides that the court
may stay discovery upon a showing of good cause. The Executives asserted that the issue of the
Legislators’ standing should be resolved before permitting discovery, for the
purpose of conserving the parties’[4ASR3d237]
[2] Trial Court Rules governing
discovery are liberally construed in favor of discovery. Sclagenhauf v. Holder, 379
Given this liberal
construction, parties opposing discovery must shoulder a heavy burden when
arguing why discovery should be denied. Blankenship
v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). Rule 26 does not provide the court with
authority to prohibit disclosure whenever it seems advisable or expedient. Rather, good cause requires a showing that
the order is required to prevent clearly defined and serious injury,
harassment, or the abuse of court processes.
Bridge C.A.T. Scan Assoc. v. Technicare
Corp., 710 F.2d 940, 944-45 (2d Cir. 1983). Good cause is not established by showing that
discovery may involve inconvenience and expense. The Executives must demonstrate some
extraordinary justification to satisfy the good cause requirement of Rule
26. Twin City Fire Ins. Co. v.
Employers Ins. of Wausau, 124 F.R.D. 652, 653 (D. Nev. 1989) (citing Lehnert v. Ferris Faculty Ass’n-MEA-NEA,
556 F. Supp. 316, 318 (W.D. Mich. 1983)).
The Executives failed to meet this burden at the hearing, and we will
accordingly deny their motion for a protective order.
The Executives have offered
no substantial objections to the discovery request and no substantial
justification for failing to comply within the 30-day time period prescribed by
T.C.R.C.P. 34. Despite this recalcitrance, for which the Executives’ counsel
appears to be principally responsible, on our own motion we will exercise our
discretion under Rule 34 to allow the Executives approximately 60 additional days
to comply with the Legislators’ discovery request. We will grant the Executives one last chance.
[3] In this respect, we
pointedly emphasize T.C.R.C.P. 37(a)(4), under which
we may find it necessary to award reasonable expenses, including attorney’s fees,
to a party that successfully obtains a court order to compel discovery. Rule 37(a)(4)
sanctions may be imposed on the party failing to comply with discovery, or the
party’s attorney advising non-compliance, or both. See Pago Petroleum Prod. v. Kim, 29 A.S.R.2d 218, 222
(Trial Div. 1996). The Executives are
forewarned that we will not look kindly on this issue if we must confront it
again.
C. Contempt
This Court possesses the
power to punish by fine or imprisonment, at its discretion, contempt of its
authority consisting of, inter alia, “disobedience
or resistance to its lawful writ, process, order, rule, decree, or command.” A.S.C.A. § 3.0203(3).
The August 3, 2000 order enjoined the Executives from “disbursing,
expending, or obligating ASG funds for [4ASR3d238] and operation of the
CC.” Nua,
4 A.S.R.3d at 221.
It also enjoined them from “transferring, selling, depleting, or
otherwise disposing of CC and SSC assets.”
Having recognized the
possible contradiction contained in our prior order, we take this opportunity
to clarify the order by amending paragraph 3.b to read “transferring, selling,
depleting, or otherwise disposing of CC and SSC assets, except as necessary to
return the CC to Tedreck.” We intend by this revision to instruct the
Executives to thoroughly account to Tedreck for the
CC assets and operations by the SSC, and to return the CC to him, and Apoua Tedrick if appropriate,
within a reasonable time frame. Failure
to do so in a good faith manner may result in contempt sanctions.
D. Motion for Reconsideration
[4] Reconsideration is
appropriate if the trial court “(1) is presented with newly discovered
evidence, (2) committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J,
First, the Executives assert
that our order “erroneously stripped [them] of statutory authority,” allegedly
conferred upon them by A.S.C.A. § 37.0210, to acquire property absent an
appropriation. The Executives argue that
“[t]here can be no other logical meaning of [§ 37.0210] but that the Fono envisioned the Executive branch committing ASG funds
to compensate” a property owner from whom it had purchased property without an
appropriation. We thoroughly considered
this argument in our August 3, 2000 order and found it groundless. The Executives’ restatement of the argument
is redundant, without factual or legal justification, and therefore somewhat
frivolous. Again we have not been
presented with a legal argument, in the form of statutory construction or
otherwise, to contest our interpretation of the statute. Nor have we seen any factual basis, in the
form of legislative history or otherwise, to support an alternative
interpretation. Most importantly, the
Executives have failed to address the vexing issue of constitutionality. That is, if the statute conferred those
powers described by the Executives, it would violate the territory’s
constitution. Our duty would be to
strike such a statute down. Thus, the
Executives offered no new grounds to support their assertion of clear error
regarding the effect of A.S.C.A. § 37.0210 so as to require reconsideration.[4ASR3d239]
Second, the Executives
contend that the holding that the CC purchase was illegal, and thus null and
void, was in error. They contend that
the sales agreement should be allowed to stand in order for the Executives to
seek approval from the Legislature permitting the agreement. We cannot countenance such faulty logic. “It is basic contract law that a promise to
perform an illegal act is unenforceable.
Furthermore, it is well established that a contract entered into by a
government official lacking authority, or failing to follow proper procedures,
is void.” Rakshan v. Am. Samoa Gov’t,
28 A.S.R.2d 151, 155 (Trial Div. 1995) (citing Whiteside v.
Third, the Executives assert
that the order constituted “judicial legislation” in that it placed unwarranted
restrictions on their management of ASG leases “under the guise of the
constitution.” Again, the Executives are
merely rehashing arguments used when they opposed summary judgment, in this
instance with respect to the effect of A.S.C.A. §§ 37.2020 through 37.2030. We have already considered these arguments. The Executives introduce nothing new
regarding this issue, and again fail to address constitutional issues. We advise counsel to examine our territory’s
constitution before accusing the Court of undermining that which we have
foresworn to protect.
In closing, we remind
counsel for the Executives that parties moving for reconsideration or new trial
must do more than call incorrect a court’s reasons for a decision. The Executives’ motion is devoid of case law,
analysis or explanation. Their contentions
are without support, leaving conclusions without merit. As such, we will deny the Executives’ motion
for reconsideration.
Order
1. The Legislators’ motion to amend the
complaint is granted.
2. We direct the Executives to comply with the
Legislators’ request of June 21, 2000, for production of documents no later
than November 30, 2000. For that reason, the Legislators’ present motion to
compel discovery is denied.[4ASR3d240]
3. Paragraph 3.b of the order entered on August
3, 2000, is amended to read “transferring, selling, depleting, or otherwise
disposing of CC and SSC assets, except as necessary to return the CC to Tedreck.” By December 31, 2000, the Executives shall
thoroughly account to Tedreck for the CC assets and
operations by the SSC and return the CC to him, and Apoua
Tedreck if appropriate. Because we deem it necessary to clarify the
order by this amendment, the Legislators’ present application to hold the
Executives in contempt is denied.
4. The Executives’ motion for reconsideration is
denied.
It is so ordered.
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