AMERICAN SAMOA

DIGEST

2008 Edition

Covering Opinions

From Divisions of the

High Court of

American Samoa

as Reported in the

American Samoa Reports

(through 7 A.S.R.3d)

Published by the High Court of American Samoa

Pago Pago, American Samoa 96799

Edited by Sean Coletti, Michael Weaver, Thad Brady & Julia A.H. Harty

Law Clerks

Preface

In 1900, the Samoan Islands of Tutuila and Aunu’u were ceded to the United States, and the Territory of American Samoa came into being. The High Court of American Samoa was established in that year and since then has been the court of highest jurisdiction in the Territory, and the only court which regularly writes opinions. The Court’s first published decision appears at 1 A.S.R. 15.

In 1977, the first volume of the American Samoa Reports, covering decisions from 1900-1938 was published. This was followed in quick succession by the publication of Volumes 2, 3 and 4 of the Reports, which include decisions of the High Court through 1975.

In 1983, the Court began publication of American Samoa Reports, second edition. Since then, thirty-one volumes of A.S.R.2d have been published, coverning decisions from 1978-1997.

In 2006, Volume 1 of the third edition of the American Samoa Reports was published. This volume begins where 31 A.S.R.2d left off, with court decisions beginning in 1997 through the present.

Each of these published decisions are printed with headnotes coverning the legal points made by the decisions. The 2008 American Samoa Digest categorizes all of the headnotes in the decisions published in American Samoa Reports, American Samoa Reports, second edition, and published cases for the American Samoa Reports, third edition. Each headnote is placed in one or more of 29 different topics. Each major topic is broken down into subtopics, each of which is further broken down to more narrowly pinpoint the law in the headnote. The Digest is best used by locating a headnote one is interested in, referring to the American Samoa Reports appearing at the end of the headnote, and comparing the wording of the headnote in the Digest with the wording of the headnotes at the beginning of the case to determine where the Court discusses the legal point of interest in the case.

Digest Topics

Administrative Law 28

Admiralty 41

Agency and Principal 56

American Samoa Government 60

Bankruptcy 86

Civil Procedure 88

Constitutional Law 188

Contracts 209

Corporation and Partnership 237

Criminal Law 246

Criminal Procedure 255

Elections 317

Employment Law 324

Environmental Law 332

Evidence 333

Family Law 347

Immigration 365

Insurance 370

International Law 381

Legal Profession 384

Matai Title Disputes 393

Real Property 422

Religion 509

Samoan Customs 510

Secured Transactions 517

Taxation 527

Torts 535

Wills, Trusts & Estates 569

Worker’s Compensation 578

The Judiciary

Listed below are the names and dates of service of the Justices of the High Court of American Samoa during the period covered by this volume of the Digest. The list commences with the first true, permanent justices, and does not include the early justices, who were primarily officers of the United States Navy, pressed into temporary service as justices.

Harry P. Wood, Chief Justice, 1921-1937

Arthur A. Morrow, Chief Justice, 1937-1966

V.G. Roel, Associate Justice, 1963-1966

Joseph W. Goss, Associate Justice, 1966-1970

H. Edward Hydon, Chief Justice, 1966-1968

Donald C. Crothers, Chief Justice, 1968-1972

Leslie N. Jochimsen, Associate Justice, 1971-1975

Chief Justice, 1975-1976

William J. McKnight, III, Chief Justice, 1972-1975

K. William O’Connor, Associate Justice, 1976-1977

Chief Justice, 1977-1978

Richard I. Miyamoto, Associate Justice, 1976-1978

Chief Justice, 1978-1981

Robert Gardner, Chief Justice, 1981-1986

Thomas Murphy, Associate Justice, 1980-1987

Grover Joseph Rees, III, Chief Justice, 1986-1988

Associate Justice, 1988-1991

F. Michael Kruse, Associate Justice, 1987-1988

Chief Justice, 1988-present

Lyle L. Richmond, Associate Justice, 1991-present

TABLE OF CONTENTS

ADMINISTRATIVE LAW

§ 1 General Provisions

2 Administrative Agencies, Officers and Agents

3 Separation of Administrative and other Powers

4 Powers & Proceedings of Administrative Agencies, Officer & Agents

4(1) —General Provisions

4(2) —Due Process

4(3) —Rules and Regulations

4(4) —Agency Interpretation of Rules & Regulations

4(5) —Hearings and Adjudications

5 Judicial Review of Administrative Decisions

5(1) —Finality and Exhaustion

5(2) —Procedure

5(3) —Scope of Review

5(4) —Disposition

5(5) —Limitations on Review

ADMIRALTY

§ 1 Jurisdiction and Procedure

2 In Personam and In Rem Actions

3 Preferred Ship Mortgages & Maritime Liens

4 Maritime Contracts

4(1) —General Provisions

4(2) —Leases

4(3) —Employment Contracts

4(4) —Carriage of Goods by Sea

5 Maritime Torts

5(1) —General Principles

5(2) —Negligence

5(3) —Unseaworthiness

5(4) —Maintenance & Cure

5(5) —Limits on Liability

5(6) —Damages

5(6) —Compensation & Recovery

AGENCY AND PRINCIPAL

§ 1 Agency Relationship

1(1) —General Principles

1(2) —Creation

1(3) —Existence

1(4) —Termination

2 Authority of Agent

2(1) —General Provisions

2(2) —Express Authority

2(3) —Implied Authority

2(4) —Apparent Authority

3 Rights, Duties, and Liabilities

3(1) —Between Principal and Agent

3(2) —Between Principal and Third Person

3(3) —Between Principal and Independent Contractor

3(4) —Between Agent and Third Person

4 Powers of Attorney

AMERICAN SAMOA GOVERNMENT

§ 1 The Federal Government, Constitution, & Laws of American Samoa

1(1) —General Principles

1(2) —Territorial Status

1(3) —Applicable Laws

1(4) —Treaties

2 Separation of Powers

3 The Legislature

3(1) —Power and Authority

3(1)(a) —Generally

3(1)(b) —Law-making Powers

3(1)(c) —Duty to Protect Land & Customs

3(1)(d) —Appropriation of Funds

3(1)(e) —Internal Procedural Powers

3(2) —Committees

3(3) —Legislation

4 The Executive

4(1) —The Governor

4(2) —Power and Authority

4(3) —Agencies

4(4) —Administrative Procedures Act

5 The Judiciary

5(1) — Power and Authority

5(2) —Administration of Court

5(3) —Disqualification – Recusal

5(4) —Precedence and Stare Decisis

5(5) —Supervision of Proceedings and Litigation

5(6) —Supervision of Judgments and Settlements

5(7) —Contempt

5(8) —Statutory Construction

6 Sovereign Rights

7 Public Records

8 Government Employees

BANKRUPTCY

§ 1 General Provisions

2 Stay of Proceedings

CIVIL PROCEDURE

§ 1 Jurisdiction

1(1) —General Provisions

1(2) —Personal Jurisdiction

1(3) —Subject Matter Jurisdiction

1(4) —Issues Related to Federal Jurisdiction

1(5) —Bankruptcy

1(6) —Admiralty

1(7) —Right of Action

1(8) —Cause of Action

1(9) —Rules of Civil Procedure Generally

1(10) —Affidavits

2 Service of Process

2(1) —General Provisions

2(2) —By Publication

2(3) —By Posting

2(4) —Under the JIFSA

3 Pleadings

3(1) —General Provisions

3(2) —Liberal Construction

3(3) —Amending Pleadings

3(4) —Rule 11 Sanctions

4 Pretrial Motions

4(1) —Motion to Dismiss

4(1)(a) —General Provisions

4(1)(b) —Failure to State a Claim – 12(b)(6) Motion

4(1)(c) —Court’s Discretion

4(1)(d) —Compared to Summary Judgment Motion

4(1)(e) —Time for Filing Motion

4(2) —Motion for Judgment on the Pleadings

4(2)(a) —Generally

4(2)(b) —Compared to Summary Judgment Motion

4(3) —Motion for More Definite Statement

4(4) —Motion to Strike

4(4)(a) —Generally

4(4)(b) —Relation to Controversy

4(4)(c) —Unduly Prejudicial

4(5) —Dismissal of Actions

4(5)(a) —Generally

4(5)(b) —Voluntary Dismissal by Plaintiff

4(5)(c) —Voluntary Dismissal by Court

4(5)(d) — Failure to Prosecute

4(5)(e) —Time for Filing Motion

4(5)(f) —Costs of Previously Dismissed Action

4(6) —Continuances

5 Parties & Claims

5(1) —General Provisions

5(2) —Joinder

5(3) —Class Actions

5(4) —Substitution of Parties

5(5) —Interpleader

5(6) —Intervention

5(7) —Consolidation

5(8) —Counterclaims

5(9) —Cross-claims

5(10) —Third Party Practice

5(11) —Bifurcated Proceedings

6 Discovery

6(1) —General Provisions

6(2) —Depositions

6(3) —Interrogatories

6(4) —Productions of Documents & Things

6(5) —Physical and Mental Examinations

6(6) —Requests for Admission

6(7) —Protective Orders

6(8) —Sanctions

7 Summary Judgment

7(1) —Standard

7(2) —Opposition to Motion

7(3) —Compared to 12(b)(6) Motion to Dismiss

7(4) —Compared to Motion for Default Judgment

7(5) —Compared to Motion for Partial Summary Judgment

7(6) —Within Court’s Discretion

7(7) —By Affidavit

7(8) —Notice and Hearing

7(9) —Summary Judgment Denied

7(10) —Summary Judgment Granted

7(11) —Appropriate Issues for Summary Judgment

7(12) —Standard of Review

7(13) —Grounds for Appeal

8 Injunctions

8(1) —General Provisions

8(2) —Preliminary Injunctions

8(3) —Injunctions Granted

8(4) —Injunctions Denied

8(5) —Substantial Likelihood of Success

8(6) —Irreparable Injury

8(7) —Permanent Injunctions

8(8) —Compared to Stay Pending Appeal

9 Equitable Remedies

9(1) —General Provisions

9(2) —Estoppel, Unclean Hands

9(3) —Laches

9(4) —Tolling

9(5) ¾Subrogation

9(6) ¾Constructive Trusts

10 Judgments

10(1) ¾Enforcement of Judgments

10(2) ¾Validity of Judgments

10(3) ¾Orders in Aid of Judgment

10(4) ¾Declaratory Judgments

10(5) ¾Default Judgments

10(6) ¾Interlocutory & Collateral Orders

10(7) ¾Res Judicata & Collateral Estoppel

10(8) ¾Merger

11 Post Judgment Motions & Appeals

11(1) —Motion for New Trial or Reconsideration

11(1)(a) —General Provisions

11(1)(b) —Time for Filing

11(1)(c) —Particularity Requirement

11(1)(d) —Grounds for New Trial or Reconsideration

11(2) —Relief from Judgment or Order - Rule 60 Motion

11(3) —Stay of Proceedings

11(3)(a) —General Provisions

11(3)(b) —Likelihood of Appellate Success

11(3)(c) —Irreparable Harm/Balance of Equities

11(3)(d) —Public Interest

11(4) —Appellate Jurisdiction

11(5) —Petition for Rehearing

11(6) —Appellate Procedures

11(6)(a) —Generally

11(6)(b) —Notice of Appeal

11(6)(c) —Appellate Briefs

11(6)(d) —Appellate Motions

11(6)(e) —Failure to Raise Issue Below

11(6)(f) —Transcripts

11(7) —Costs of Appeal

11(8) —Findings of Law – De Novo Review

11(9) —Findings of Fact – Clearly Erroneous

11(10) —Credibility of Evidence and Witnesses

11(11) —Administrative Agency Decisions

11(12) —Abuse of Discretion

11(13) —Harmless and Reversible Error

12 Conflict of Laws

12(1) —Law of the Forum

12(2) —Foreign Courts and Judgments

13 Writs

13(1) —General Provisions

13(2) —Procedural Details

13(3) —Elements

13(3)(a) —Generally

13(3)(b) —Plaintiff’s Specific Legal Right

13(3)(c) —Defendant’s Indisputable Duty

13(3)(d) —Other Avenues of Relief Exhausted

14 Garnishment

15 Alternative Dispute Resolution

15(1) —Mediation

15(2) —Voluntary Arbitration

15(3) —Compulsory Arbitration

15(4) —Condemnation Proceedings

15(5) —Appeal of Arbitrator’s Decision

CONSTITUTIONAL LAW

§ 1 Judicial Review

2 Justiciable Case or Controversy

2(1) —Standing

2(2) —Ripeness

2(3) —Mootness

2(4) —Political Questions

2(5) —Advisory Opinions

3 Constitutional and Statutory Interpretation

3(1) —General Provisions

3(2) —Legislative Intent

3(3) —Statutory Construction

3(4) —Conflict of Laws

4 Separation of Powers

5 Full Faith and Credit

6 Due Process

7 Individual Rights

7(1) —Generally

7(2) —Equal Protection

7(3) —Freedom of Speech, Press, and Religion

7(4) —Takings and Just Compensation

7(5) —Cruel and Unusual Punishment

7(6) —Discrimination

8 Contracts

9 Habeas Corpus

CONTRACTS

§ 1 Contract Formation

1(1) —Meeting of the Minds

1(2) —Consideration

1(3) —Offer and Acceptance

1(4) —Requirement of a Writing: The Statute of Frauds

1(5) —Quasi Contract

1(6) —Conditions Precedent and Subsequent

2 Responsibilities and Authority of Parties Forming a Contract

2(1) —Authority

2(2) —Requirement of Capacity

2(3) —Duties of Parties

2(4) —Third Party Beneficiaries

2(5) —Assignment of Rights

2(6) —Delegation of Duties

2(7) —Fiduciary Duties

2(8) —Warranties

3 Unenforceability

3(1) —Public Policy

3(2) —Fraud

3(3) —Unfairness and Unconscionability

3(4) —Mistake and Impossibility

3(5) —Misrepresentation

3(6) —Illegality

3(7) —Impossibility

3(8) —Impracticability

3(9) —Frustration of Purpose

3(10) —Voidable Contracts

3(11) —Void Contracts

3(12) —Undue Influence

4 Contract Modification

4(1) —General Principles

4(2) —Oral Modification

4(3) —Written Modification

4(4) —Ratification

4(5) —Novation

4(6) —Mutual Rescission

4(7) —Waiver

4(8) —Repudiation

4(9) —Cancellation

4(10) —Acquiescence

5 Contract Interpretation

5(1) —General Provisions

5(2) —The Uniform Commercial Code

5(3) —The Parole Evidence Rule

5(4) —Plain Meaning Rule

5(5) —Ambiguous Terms

5(6) —Custom & Usage

5(7) —Additional Terms

5(8) —Different Terms

5(9) —CIF Contract Terms

5(10) —Choice of Law Provisions

6 Performance and Breach

6(1) —Breach Generally

6(2) —Material Breach

6(3) —Substantial Performance

6(4) —Partial Performance

6(5) —Divisible Contracts

6(6) —Anticipatory Repudiation

6(7) —Accord & Satisfaction

6(8) —Duty to Mitigate

7 Remedies

7(1) —Statute of Limitations

7(2) —Specific Performance and Injunctions

7(3) —General Measure of Damages

7(4) —Quantum Meruit

7(5) —Liquidated Damages

7(6) —Exemplary Damages

7(7) —Reformation

7(8) —Promissory Estoppel

7(9) —Punitive Damages

7(10) —Attorney Fees

8 Types of Contracts

8(1) —Oral Agreements

8(2) —Bailment Contracts

8(3) —Consignment Contracts

8(4) —Written Contracts

CORPORATION AND PARTNERSHIP

§ 1 Formation of Corporations

1(1) —Generally

1(2) —Distinct Corporate Name

1(3) —Who May Incorporate

1(4) —Fees Required for Incorporation

1(5) —Organizational Meeting

2 Preincorporation Transactions

3 Limited Liability & the Corporate Entity

3(1) —Generally

3(2) —Piercing the Corporate Veil

4 Corporate Financial Structure

4(1) —Generally

4(2) —Books & Accounts

4(3) —Shares

4(4) —Dividends

5 Corporate Management Structure

5(1) —Generally

5(2) —Incorporators

5(3) —Shareholders

5(4) —Officers & Directors

5(5) —Duties of Management

5(6) —Business Judgment Rule

5(7) —Management Compensation

5(8) —Shareholders Meetings

5(9) —Board Meetings

5(10) —Election/Voting Procedures

5(11) —Dissenters & Their Rights

5(12) —Corporate Counsel

6 Types of Corporations

6(1) ¾Generally

6(2) ¾Closely Held Corporation

6(3) ¾Public Corporation

6(4) ¾Foreign Corporations

6(5) ¾Eleemosynary Corporations

6(6) ¾Cooperative Corporations

7 Corporate Powers & Prohibitions

7(1) ¾General Provisions

7(2) ¾Powers

7(3) ¾Transfers of Land

7(4) ¾Prohibitions

8 The Corporation & Litigation

8(1) ¾Generally

8(2) ¾Shareholder Suits

8(3) ¾Third Party Suits

9 Organic Changes: Amendments, Mergers and Dissolution

9(1) —General Provisions

9(2) —Amending Formative Documents

9(3) —Merger

9(4) —Dissolution of the Corporation

10 Partnerships

10(1) —General Provisions

10(2) —Formation

10(3) —Service on a Partnership

10(4) —Dissolution of Partnership

10(5) —Liability for Partnership Debts

CRIMINAL LAW

§ 1 General Provisions

2 Liability

2(1) —Mens Rea (Intent)

2(2) —Actus Reus

2(3) —Causation

3 Defenses

3(1) —Generally

3(2) —Insanity

3(3) —Provocation

3(4) —Self-Defense

3(5) —Justification

4 Specific Crimes

4(1) —Inchoate Offenses

4(2) —Offenses Against the Person

4(3) —Sexual Offenses

4(4) —Prostitution

4(5) —Offenses Against the Family

4(6) —Abortion

4(7) —Robbery, Arson, Burglary and Related Offenses

4(8) —Stealing and Related Offenses

4(9) —Weapons

4(10) —Gambling

4(11) —Pornography and Related Offenses

4(12) —Offenses Against Public Order

4(13) —Offenses Against the Administration of Justice

4(14) —Offenses Affecting Government

4(15) —Traffic Offenses

4(16) —Drug Offenses

4(17) —Miscellaneous Offenses

CRIMINAL PROCEDURE

§ 1 Rules of Criminal Procedure

1(1) —Generally

1(2) —Jurisdiction

1(3) —Prosecutorial Discretion

2 Criminal Complaints, Indictments and Bills of Information

2(1) —Generally

2(2) —Indictments

2(3) —Amending Information

2(4) —Sufficiency of Information

2(5) —Arguments Inconsistent with Information

2(6) —Bill of Particulars

2(7) —Probable Cause Determination

2(8) —Multiplicitous Charging

2(9) —Pro Se Pleadings

3 Pleas

3(1) —Generally

3(2) —Court’s Duties

3(3) —Sufficient Factual Basis

3(4) —Voluntarily Made

3(5) —Interpretation of Plea Agreements

3(6) —Breach of Plea Agreements

3(7) —Withdrawal of Pleas

4 Parties & Procedure

4(1) —Bifurcated Proceedings

4(2) —Severance of Charges or Defendants

4(3) —Joinder of Offenses

4(4) —Joinder of Defendants

5 Pre-Trial Matters

5(1) —Generally

5(2) —Initial Appearance

5(3) —Continuances

5(4) —Competence to Stand Trial

5(5) —Motions to Suppress Evidence

5(6) —Pre-Trial Conferences

5(7) —Notice of Alibi

5(8) —Defense Based on Mental Condition

5(9) —Notice of Intent to Use Evidence

5(10) —Release from Custody

5(11) —Discovery Generally

5(12) —Depositions

5(13) —Disclosure of Information & Witnesses

5(14) —Witness Identifications

5(15) —Subpoena of Witnesses

5(16) —Juveniles

5(17) —Collateral Estoppel

5(18) —Failure to Prosecute

5(19) —Immunity from Prosecution

5(20) —Change of Venue

6 Trial

6(1) —Bifurcated Proceedings

6(2) —Due Process of Law

6(3) —Equal Protection

6(4) —Double Jeopardy

6(5) —Self Incrimination

6(6) —Right to a Speedy Trial

6(7) —Trial by Jury

6(8) —Right to a Public Trial

6(9) —Opening and Closing Arguments

6(10) —Motion for Judgment of Acquittal

6(11) —Mistrial

6(12) —Jury Instructions

6(13) —Sufficiency of the Evidence

6(14) —Record of Proceedings

7 Punishment and Sentencing

7(1) —General Provisions

7(2) —Cruel & Unusual Punishment

7(3) —Constitutional Restrictions on Prisons

7(4) —Deportation

7(5) —Probation

7(5)(a) —Generally

7(5)(b) —Terms of Probation

7(5)(c) —Conditions of Probation

7(6) —Parole

7(7) —Parole Revocation

7(8) —Conditions upon Release

7(9) —Work Release

8 Post-Verdict Motions

8(1) — Motion for New Trial

8(2) —Motion for Arrest of Judgment

8(3) —Motion to Vacate Sentence

8(4) —Motion to Correct or Reduce Sentence

8(5) —Stays of Proceedings

8(6) —Habeas Corpus & Conditions of Confinement

8(7) —Miscellaneous Motions

9 Appeals

9(1) —Generally

9(2) —Power of Appellate Court

9(3) —Time for Appeal

9(4) —Appellate Jurisdiction

9(5) —Good Faith

9(6) —Right to Appeal

9(7) —Appellate Standards of Review

10 Interrogation and Miranda

10(1) —Generally

10(2) —Custody

10(3) —Interrogation

10(4) —Waiver of Rights

10(5) — Invoking Miranda Rights

10(6) —Evidence Obtained in Violation of Miranda

11 Searches & Seizures

11(1) —Generally

11(2) —Privacy Expectations

11(3) —Probable Cause for Search Warrant

11(4) —Execution of Search Warrant

11(5) —Knock and Announce Rule

11(6) —Warrantless Searches

11(7) —Terry Stops

11(8) —Vehicle and Inventory Searches

11(9) —Border and Custom Searches

11(10) —Consensual Searches

11(11) —Search Incident to Arrest

11(12) —Plain View Doctrine

11(13) —Open Fields Doctrine & Curtilage

11(14) —Application of Exclusionary Rule

11(15) —Arrests

11(16) —Detention of Foreign Nationals

12 Counsel

12(1) —General Provisions

12(2) —Right to Counsel

12(3) —Effective Assistance of Counsel

12(4) —Prosecutorial Misconduct

13 Extradition

13(1) —General Provisions

13(2) —Extradition Proceedings

13(3) —of Witneses

13(4) —Evidence

ELECTIONS

§ 1 General Provisions

1(1) —Election Commissioner

2 Registration

2(1) —Generally

2(2) —Appeals

3 Issues – Candidates

3(1) —Nomination of Candidates

3(2) —Challenging of Candidates

3(3) —Certification of Winning Candidate

3(4) —Appeal to High Court

5 Voting Procedures

4(1) —General Provisions

4(2) —Illiterate & Disabled

6 Election Contests

5(1) —Tie Vote

5(2) —Contests for Cause – Generally

5(3) —Contests for Cause – Filing Complaint

6 Elections Offenses

7 Senate Elections

7(1) —Election Procedures

7(2) —Appeal to High Court

EMPLOYMENT LAW

§ 1 General Provisions

2 Hiring And Firing

2(1) — “At Will” Employment

2(2) —Just Cause Termination

2(3) —Wrongful Termination

3 Independent Contractors

4 Government Employees

5 National Labor Relations Board

6 Wages

7 Workmen’s Compensation

8 Fair Labor Standards Act

8(1) —Generally

8(2) —Right of Action

8(3) —Applicability of the FLSA

8(4) —“Opting In” Under the FLSA

8(5) —Rights Provided

8(5)(a) —Generally

8(5)(b) —Rate of Pay

8(5)(c) —Relating to Involvement in Suit

8(6) —Remedies Under the FLSA

9 Remedies

ENVIRONMENTAL LAW

§ 1 General Provisions

2 Standing & Jurisdictional Requirements

3 Coasts & Waters

3(1) ¾General Provisions

3(2) ¾Water Quality

3(3) ¾Coastal Rules & Regulations

EVIDENCE

§ 1 General Provisions

2 Judicial Notice

3 Presumptions

3(1) ¾General Civil Actions

3(2) ¾Land & Titles Division

3(3) —Matai

3(4) ¾Criminal Cases

3(5) ¾Extradition Proceedings

4 Relevance

4(1) ¾General Definition

4(2) ¾Admissibility

4(3) ¾Exclusion of Relevant Evidence

4(4) ¾Inadmissible Character Evidence

4(5) ¾Methods of Proving Character

4(6) ¾Habit; Routine Practice

4(7) ¾Subsequent Remedial Measures

4(8) ¾Compromise and Offers to Compromise

4(9) ¾Payment of Expenses

4(10) ¾Pleas, Plea Discussions

4(11) ¾Liability Insurance

4(12) ¾Victim Behavior in Rape Cases

5 Privileges

5(1) ¾Generally

5(2) ¾Marital Communications

5(3) ¾Lawyer-Client Communications

5(4) ¾Physician-Patient Relationship

5(5) ¾Governmental Secrets

6 Witnesses

6(1) ¾General Rule of Competency

6(2) ¾Credibility and Impeachment

6(3) ¾Form of Direct Examination

6(4) ¾Cross Examination

6(5) ¾Written Document to Refresh Memory

6(6) ¾Prior Statements of Witnesses

6(7) ¾Exclusion of Witnesses

6(8) ¾Witness Fees

7 Opinions and Expert Testimony

7(1) ¾Generally

7(2) ¾Opinions by Lay Witnesses

7(3) ¾Expert Testimony

7(4) ¾Bases of Expert Testimony

8 Hearsay

8(1) ¾General Rule

8(2) ¾Exceptions When Declarant Available

8(2)(a) —General Provisions

8(2)(b) —Present Sense Impression

8(2)(c) —Excited Utterance

8(2)(d) —Then Existing Condition

8(2)(e) —Statements for Medical Purposes

8(2)(f) —Past Recollection Recorded

8(2)(g) —Records of Regularly Conducted Activity

8(2)(h) —Public Records & Reports

8(2)(i) —Vital Statistic Records

8(2)(j) —Religious Organization Records

8(2)(k) —Marriage & Baptismal Certificates

8(2)(l) —Family Records

8(2)(m) —Records Affecting an Interest in Property

8(2)(n) —Ancient Documents

8(2)(o) —Market Reports & Compilations

8(2)(p) —Learned Treatises

8(2)(q) —Reputation of Family History

8(2)(r) —Reputation of Boundaries

8(2)(s) —Reputation of Character

8(2)(t) —Judgment of Prior Conviction

8(2)(u) —Judgment as to History

8(3) ¾Exceptions When Declarant Unavailable

8(3)(a) —General Provisions

8(3)(b) —Former Testimony

8(3)(c) —Dying Declaration

8(3)(d) —Statement Against Interest

8(3)(e) —Statement of Personal, Family History

8(4) ¾Hearsay Within Hearsay

9 Authentication and Identification

9(1) ¾General Rule

9(2) ¾Self-Authentication

10 Contents of Writings, Recordings & Photographs

10(1) ¾Generally

10(2) ¾ Best Evidence Rule

10(3) ¾ Duplicates

10(4) ¾Other Evidence of Lost, Unobtainable, or Other Documents

10(5) ¾Public Records

10(6) ¾Summaries

10(7) ¾Admission of Party

FAMILY LAW

§ 1 Marriage

1(1) —Validity

1(2) —Annulment

2 Divorce

2(1) ¾Grounds

2(2) ¾Property Distribution

2(3) ¾Child Custody

2(3)(a) —General Provisions

2(3)(b) —Jurisdiction

2(3)(c) —Considerations in Awarding Custody

2(4) —Child Support

2(5) ¾Service of Process

2(6) ¾Residency Requirement

3 Children & Minors

3(1) ¾General Provisions

3(2) —Involuntary Relinquishment of Parental Rights - Termination

3(2)(a) —General Provisions

3(2)(b) —Protections for Parents

3(2)(c) —Best Interests of the Child

3(3) ¾Voluntary Relinquishment of Parental Rights – Adoption

3(3)(a) —General Provisions

3(3)(b) —Samoan Custom Adoptions

3(3)(c) —Protections for Parents

3(3)(d) —Best Interests of the Child

3(3)(e) —Legal Status After Adoption

3(4) —Guardianships

3(5) —Rights in Court

4 Legitimacy & Inheritance

5 Family Purpose Doctrine

6 Records

IMMIGRATION

§ 1 General Provisions

2 Immigration Board

3 Exclusion

4 Deportation

4(1) ¾General Provisions

4(2) ¾Procedures

4(3) ¾Grounds

4(4) ¾Stay of Order

5 Sponsors

INSURANCE

§ 1 Insurance Commissioner & General Insurer Requirements

1(1) —Generally

1(2) —Commissioner’s Authority & Duties

1(3) —Certificates to Transact Insurance

1(4) —Statutory Deposits

1(5) —Orders of the Commissioner

1(6) —Withdrawal from American Samoa

1(7) —Agents & Brokers

1(8) —Bailees as Insurers

2 Policy as a Contract

2(1) —Generally

2(2) —Warranties

2(3) —Interpretation

2(4) —Modification

2(5) —Termination

2(6) —Cancellation

2(7) —Warranties

2(8) —Misrepresentation

2(9) —Applicable Law

3 Parties & Interests

3(1) —General Provisions

3(2) —Role & Authority of Agent

3(3) —Insured’s Duties

3(4) —Insurer’s Duties

3(4)(a) —Generally

3(4)(b) —Duty to Pay

3(4)(c) —Good Faith Attempt to Resolve Dispute

3(4)(d) —Duty to Act on Application

3(5) —Insurer’s Right of Subrogation

3(6) —Beneficiaries

3(7) —Insurable Interests

3(8) —Transfer of Insured Property

3(9) —Reinsurance

3(10) —Double Insurance

3(11) —Stacking Benefits

3(12) —Statutory Right to Sue

4 Coverage

4(1) —Policy Terms & Limitations

4(2) —Proof of Loss

4(3) —Measure of Recovery

4(4) —Exclusions & Exceptions

4(5) —Public Policy Prevent Recovery

5 Automobile Insurance

5(1) —General Provisions

5(2) —Liability

5(3) —Permission by Owner

5(4) —Uninsured & Underinsured Motorists

6 Liability Insurance

7 Property Insurance

INTERNATIONAL LAW

§ 1 General Provisions

1(1) —Generally

1(2) —Comity

1(3) —Jurisdictional Immunities for Foreign States Act

2 Air Transportation

2(1) —Generally

2(2) —Applicability

2(3) —Baggage Claims

3 International Banking

4 Customs

4(1) —General Principles

4(2) —Applicable Law

4(3) —Searches & Seizures

LEGAL PROFESSION

§ 1 The Office of Attorney

1(1) —Generally

1(2) —Public Service

1(3) —Special Role of Prosecutor

2 Scope of Representation

3 Duty to Client

3(1) —General Provisions

3(2) —Conflict of Interest

3(3) —Malpractice

3(4) —Ineffective Assistance of Counsel

4 Duty to Court

4(1) —General Provisions

4(2) —Sanctions

4(3) —Contempt of Court

5 Compensation

5(1) —Compensation From Client

5(2) —Litigation Expenses

6 Practice of Law Without a License

MATAI TITLE DISPUTES

§ 1 Territorial Registrar Procedures

2 Procedural Rules

2(1) —General Provisions

2(2) —Exempt from Rules of Civil Procedure

2(3) —Judges & Justices

2(4) —Family Meeting Requirement

2(5) —Counterclaims

2(6) —Retrials

2(7) —Stays of Proceedings

3 Appellate Review

4 Traditional Determination of Matai

4(1) —General Provisions

4(2) —Split Titles

4(3) —Joint Title Holders

4(4) —Holding Two Titles

5 Initial Qualifications for Title

6 Statutory Qualifications for Title

6(1) —General Provisions

6(2) —Best Hereditary Right

6(3) —Clan Support

6(4) —Forcefulness, Character & Personality, Knowledge of Customs

6(5) —Value to Family, Village and County

7 Priority of Statutory Criteria

8 Determination of Prevailing Candidate

9 Enforcement of Matai Title Decisions

10 Removal of Matai

REAL PROPERTY

§ 1 Public Lands

1(1) —Generally

1(2) —Cession

1(3) —Eminent Domain

1(3)(a) —Generally

1(3)(b) —Notice and Hearing

1(3)(c) —Arbitrated Condemnation Proceedings

1(4) —Leases

2 Communal Lands

2(1) —Public Policy

2(2) —Evidence of Communal Ownership

2(3) —Role of Matai

2(4) —Assignment of Land to Family Members

2(4)(a) —Generally

2(4)(b) —Occupation, Cultivation & Use

2(4)(c) —Evictions & Revocation of Assignments

2(4)(d) —Registration Rights

2(4)(e) —Injunctions

2(4)(f) —Tautua (service) Obligation

2(5) —Separation-of-Structure Agreement

2(6) —Leases

2(7) —Conveyance

2(8) —Relinquishment of Land

2(9) —Mediation Requirement

3 Individually Owned Land

4 Evidence of Ownership

4(1) —Generally

4(2) —First Occupancy Claims

4(3) —Clearing and Planting

4(4) —Possession and Use

4(5) —Family Tradition and Reputation

4(6) —Records and Documents

4(7) —Hearsay

5 Adverse Possession

5(1) —General Provisions

5(2) —Elements

2(2)(a) —Generally

2(2)(b) —Actual Possession

2(2)(c) —Open & Notorious Possession

2(2)(d) —Exclusive Possession

2(2)(e) —Hostile Possession

2(2)(f) —Duration Requirement

2(2)(g) —Continuous & Uninterrupted Possession

5(3) —Tacking

6 Quieting Title

6(1) —Generally

6(2) —Burden of Proof

7 Alienation of Land

7(1) —Protective Policy

7(2) —Relation to Mortgages & Creditors

7(3) —Oral Conveyances

7(4) —Void Conveyances

7(5) —Dedication of Land

7(6) —Gifts

7(7) —Requirement of a Writing

8 Registration of Land

8(1) —General Provisions

8(2) —Land & Titles Division

8(3) —Statutory Requirements - Announcements and Notice

8(4) —Burden of Proof

8(5) —Survey and Description Requirements

8(6) —Objection to Registration

8(7) —Finality of Judgments

9 License to Use Land

9(1) —Generally

9(2) —Creation of License

9(3) —Rights Created by License

9(4) —Mortgages

9(5) —Termination

10 Easements

10(1) —General Provisions

10(2) —Prescriptive Easements

10(3) —Implied Easements

10(4) —Servitudes

11 Covenants

12 Encroachments & Encumbrances

13 Boundaries

13(1) —General Provisions

13(2) —Monuments & Markers

13(3) —Evidence

13(4) —Ambiguous Deeds

14 Property Torts

14(1) —Trespass

14(2) —Damages for Trespass

14(3) —Negligence

15 Equitable Claims

15(1) —Equitable Title

15(2) —Injunctions

15(3) —Good Faith Possessor

15(4) —Estoppel

15(5) —Constructive Trusts

16 Rights of Co-Owners

16(1) —Possession and Use of Common Estate

16(2) —Partition

17 Landlord-Tenant

17(1) —Generally

17(2) —Terms and Conditions of Lease

17(3) —Modification of Lease

17(4) —Assignment of Lease

17(5) —Responsibilities of Landlord

17(6) —Responsibilities of Tenant

17(7) —Rescission or Cancellation

17(8) —Eviction

17(9) —Authority to Lease

17(10) —Damages for Breach

17(11) —Tenants at Will

17(12) —Improvements

17(13) —Abandonment

17(14) —Fixtures

18 Zoning

18(1) —Zoning Variance

18(2) —Zoning Board

19 Riparian Rights

20 National Park of American Samoa

RELIGION

§ 1 Church Governance

2 Congregational Church

3 Constitutional Issues

4 Dedication of Land

SAMOAN CUSTOMS

§ 1 Impact on American Samoa Laws

2 Criminal Law

3 Family Law

3(1) —Family Membership

3(2) —Adoption

3(3) —Burial Grounds

4 Property Rights

5 Ceremonies

6 Samoan Language

7 Village Councils

8 Matai

8(1) —General Provisions

8(2) —General Pule or Authority

8(3) —Pule over Communal Land

8(4) —Family’s Obligation of Service

8(5) —Removal

9 Elections

SECURED TRANSACTIONS

§ 1 Common Law

1(1) —General Provisions

1(2) —Common Law Pledge

2 Security Interests & Priority of Claims

3 Election of Remedies Rule

4 Debtor Default

4(1) —General Provisions

4(2) —Acceleration Clause

4(3) —Debtor Fraud

4(4) —Debtor Defenses

5 Repossession of Property

5(1) —General Provisions

5(2) —Creditor’s Retention of Repossessed Collateral

6 Creditor Sale

7 Garnishment of Funds

8 Guaranty

9 Third Party Debtor

10 Letter of Credit Transactions

11 Mortgages

12 Uniform Customs and Practice for Documentary Credits

13 Banking and Loans

13(1) —In General

13(2) —Suits Against Bank

13(3) —Student Loans

14 National Credit Union Administration Board

TAXATION

§ 1 Incorporation of Federal Tax Law

2 Procedural Issues

2(1) —General Provisions

2(2) —Statutes of Limitations

2(3) —Jurisdiction

2(4) —Taxpayer Interviews

3 Specific Taxes

3(1) —Estate Taxes

3(2) —Excise Taxes

3(3) —Gift Taxes

3(4) —Income Tax

3(5) —Property Taxes

3(6) —Taxation of Awards or Settlements

4 Collection

5 Refunds & Credits

5(1) —Refunds

5(2) —Credits

6 Power of Levy, Distraint & Tax Liens

7 Marital Deduction

8 Sovereign Immunity

8(1) —Prohibited Suits

8(2) —Permitted Suits

8(3) —Required Procedure

9 Taxpayer Offenses

9(1) — Failure to File

9(2) — Failure to Pay

9(3) — Taxpayer Omissions

9(4) —Reliance on Professional Advice

10 Deficiency Proceedings

10(1) —Notice Requirement

11 Industrial Incentive Act

11(1) —Tax Exemption Policy Generally

11(2) —Authority of Governor, Board

11(3) —Proof of Public Interest

11(4) —Constitutionality

TORTS

§ 1 Negligence

1(1) —Duty

1(2) —Breach

1(3) —Causation

1(4) —Negligence Per Se

1(5) —Res Ipsa Loquitur

2 Intentional Torts

2(1) —General Provisions

2(2) —Defamation

2(3) —Trespass

2(4) —Malicious Prosecution

2(5) —Conversion

2(6) —Intentional Infliction of Emotional Distress

3 Strict Liability

4 Nuisance

5 Attractive Nuisance

6 Liability for Animals

7 Malpractice

7(1) —General Provisions

7(2) —Legal Profession

7(3) —Architects

7(4) —Medical Profession

8 Vicarious Liability

8(1) —Vehicle Owners

8(2) —Family Purpose Doctrine

8(3) —Compulsory Insurance Act

8(4) —Employers

9 Common Carrier Liability

10 Government Tort Liability Act

10(1) —General Provisions

10(2) —Relation to Government Employee Suit

10(3) —Statute of Limitations

10(4) —Administrative Claim Requirement

11 Wrongful Death

12 Loss of Filial Consortium

13 Bailments

13(1) —Rights, Duties & Liabilities Between Bailor and Bailee

13(2) —Rights and Duties Between Bailor or Bailee & Third Person

13(3) —Conversion of Subject Matter

14 Comparative & Contributory Negligence

15 Joint and Several Liability

15(1) —General Provisions

15(2) —Effect of Release of One Tortfeasor

15(3) —Determining Liability

15(4) —Compensation by One Defendant

16 Indemnity

17 Subrogation

18 Damages

18(1) —General Provisions

18(2) —Pain and Suffering

18(3) —Medical Expenses

18(4) —Lost Wages and Profits

18(5) —Damages to Personal Property

18(6) —Mitigation of Damages

18(7) —Punitive, Exemplary, or Special Damages

18(8) —Interest

18(9) —Collateral Source Rule

18(10) —Effect of Preexisting Conditions

18(11) —Compensatory Damages

18(12) —Nominal Damages

18(13) —Restoration Cost Damages

18(14) —Treble Damages

18(15) —Attorney Fees

19 Statutes of Limitations

19(1) —General Provisions

19(2) —Accrual of Cause of Action

19(3) —Personal Injuries

19(4) —Minors and Insane Persons

20 Burden of Proof

21 Act of God

WILLS, TRUSTS AND ESTATES

§ 1 Execution

1(1) —General Provisions

1(2) —Lost Wills

2 Interpretation

3 Procedural Issues

4 Modification or Change

4(1) —General Provisions

4(2) —Ademption

4(3) —Dependent Relative Revocation

5 Inheritance

5(1) —General Provisions

5(2) —Intestate Succession

5(3) —Adopted Children

5(4) —Marital Inheritance

6 Inter Vivos Conveyance or Gift

7 General Legacies and Devises

7(1) —General Provisions

7(2) —Conditions and Restrictions on Legacies and Devises

8 Individually-Owned Property

9 Administration

9(1) —General Provisions

9(2) —Letters of Administration

9(3) —Trustees & Beneficiaries

10 Taxation

11 Fiduciaries

11(1) —General Provisions

11(2) —Fiduciaries for Minors

11(3) —Related to Trusts

12 Small Estates

13 Future Interests & Rule Against Perpetuities

14 Wrongful Death

15 Power of Attorney

WORKER'S COMPENSATION

§ 1 Purpose and Origin

2 Commission Procedure

3 Injury

3(1) —Date of Injury

3(2) —Type of Injury

4 Compensation Award

4(1) —General Provisions

4(2) —Wages

4(3) —Exclusive Remedy

5 Burden of Proof

6 Employer Liability

6(1) —General Provisions

6(2) —Employer Subrogation

6(3) —Settlement Agreements

6(4) —Release

7 Medical Care

8 Judicial Review

9 Beneficiaries

10 Costs in a Worker’s Compensation Proceeding

ADMINISTRATIVE LAW

§ 1 General Provisions

2 Administrative Agencies, Officers and Agents

3 Separation of Administrative and other Powers

4 Powers & Proceedings of Administrative Agencies, Officers & Agents

4(1) —General Provisions

4(2) —Due Process

4(3) —Rules and Regulations

4(4) —Agency Interpretation of Rules & Regulations

4(5) —Hearings and Adjudications

5 Judicial Review of Administrative Decisions

5(1) —Finality and Exhaustion

5(2) —Procedure

5(3) —Scope of Review

5(4) —Disposition

5(5) —Limitations on Review

§ 1 General Provisions

Because the Governor has general supervision and control of all executive departments, agencies and instrumentalities of the Government, personnel decisions are subject to his direction as long as his actions are in accordance with applicable territorial and federal laws and rules. Rev. Const. Am. Samoa Art. II, § 7; A.S.C.A. § 7.0110; A.S.A.C. §§ 4.0102, 4.0111(b). Sala v. American Samoa Gov't, 21 A.S.R.2d 14.

When the government makes rules to govern the conduct of its affairs, it must abide by those rules and act within its authority. Sala v. American Samoa Gov't, 21 A.S.R.2d 14.

Constitutional statutory authority is always paramount to administrative rule authority. Vaella’a v. Sunia, 1 A.S.R.3d 134 (Trial Div. 1997).

The authority, powers, and duties of the Administrative Law Judge are administrative in nature and limited to legitimate Executive branch functions. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

§ 2 Administrative Agencies, Officers and Agents

SEE AMERICAN SAMOA GOVERNMENT § 4(3) – AGENCIES

An agency's head may only reassign an employee involuntarily with the concurrence of the Director of Human Resources and with a finding that the reassignment be in the best interests of the government; failure to follow the regulatory standard is arbitrary and an error of law. A.S.C.A. § 4.1044(6); A.S.A.C. § 4.0804(b). Leiato v. Personnel Advisory Board, 21 A.S.R.2d 25.

If done within the scope and by the apparent authority of a de jure public officer, a de facto public officer's acts are binding on third parties; it is as if the de facto public officer were legally selected, qualified and in possession of the office. Toilolo v. Poti, 24 A.S.R.2d 1.

Under A.S.C.A. §§ 12.0205 and 12.0206 the Legislature created the office of procurement and the position of chief procurement officer, and specified certain credentials for such officer, who is appointed by the governor and confirmed by the Legislature. B.H.P. Petroleum South Pac., Inc. v. American Samoa Gov’t, 2 A.S.R.3d 10 (App. Div. 1998).

The Administrative Law Judge Act of 1998 transferred the final administrative agency hearing authority of the Personnel Advisory Board to the Administrative Law Judge. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

§ 3 Separation of Administrative and other Powers

SEE AMERICAN SAMOA GOVERNMENT § 2 – SEPARATION OF POWERS

Administrative board, given statutory authority to advise agency and to perform such duties as governor assigns, had no authority to issue binding personnel decisions absent explicit grant, especially when Code sets forth hiring and termination procedures that do not involve board. Banks v. American Samoa Gov't, 4 A.S.R.2d 113.

As adequate safeguards exist to inform the Director of Administrative Services of the natural "termination" of insurance policies by expiration of the policy period, the legislature did not intend the statute requiring an insurer to notify the Director at least ten days prior to "cancellation" of a policy to apply to "terminations." A.S.C.A. § 22.2013. Pu`u v. Lepule, 8 A.S.R.2d 68.

Under statute providing that blank forms for petitions required of candidates for elective office should be distributed by election officer, and also providing that eligibility of candidates should be determined after they had filed the required petitions, election officer had no authority to withhold blank forms from a prospective candidate whom he did not did not believe to be eligible for election. A.S.C.A. §§ 6.0301(b),(d). Siofele v. Shimasaki, 8 A.S.R.2d 81.

Under territorial immigration statute, the immigration board determines only whether an alien is deportable; the decision actually to deport a deportable alien is within the discretion of the attorney general. A.S.C.A. § 41.0616. Leti v. Immigration Board, 8 A.S.R.2d 107.

Order of deportation must be made by the Attorney General. A.S.C.A. § 41.0616. Rakhshan v. Immigration Board, 15 A.S.R.2d 29.

The Attorney General's Office may not simultaneously act as both counsel and legal advisor to a government agency. A.S.C.A. § 4.1034. Leiato v. Personnel Advisory Board, 21 A.S.R.2d 25.

The American Samoa Procurement Act of 1983, A.S.C.A. §§ 12.0201-.0219, carefully proscribes a system of government purchasing so as to ensure predictability and fairness, and the integrity of this system is disturbed when the Governor acts as chief procurement officer. B.H.P. Petroleum South Pac., Inc. v. American Samoa Gov’t, 2 A.S.R.3d 10 (App. Div. 1998).

Where the Governor commingles the powers of separate offices, he exceeds the scope of his constitutional and legislatively granted powers, to the prejudice of substantial rights of an affected party, and a decision by the Governor acting as chief procurement officer to award a contract must be reversed. B.H.P. Petroleum South Pac., Inc. v. American Samoa Gov’t, 2 A.S.R.3d 10 (App. Div. 1998).

§ 4 Powers and Proceedings of Administrative Agencies, Officers and Agents

§ 4(1) —General Provisions

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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

The Administrative Procedures Act of 1969 (A.S.C.A. § 4.1001 et seq) 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 authority. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

According to A.S.C.A. § 4.1032(5), administrative hearings are conducted by a “hearings officer”, otherwise known as an “administrative law judge”. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

The Administrative Procedures Act affords an aggrieved party the right, upon exhausting the administrative decision making process, to limited judicial review of an agency’s final decision by the Appellate Division of the High Court. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

The Administrative Law Judge Act of 1998 transferred the final administrative agency hearing authority of the Personnel Advisory Board to the Administrative Law Judge. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

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 rules and procedures. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

If compatible with the rules and statutes creating or implementing the agency, the A.L.J. may, as allowed under § 4.0602(a) of the Act, hear and decide contested cases in original proceedings. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

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.L.J. 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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

In contested matters brought before an agency having subject matter administrative jurisdiction over the dispute, where the Administrative Law Judge has not been designated by the Legislature as the final administrative agency decision maker, the A.L.J. functions 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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

The authority, powers, and duties of the Administrative Law Judge are administrative in nature and limited to legitimate Executive branch functions. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

§ 4(2) —Due Process

SEE CONSTITUTIONAL LAW § 7(1) – DUE PROCESS

Argument that license was "revoked" without procedural due process was unfounded where evidence shows license was never granted. Am. Sam. Const. art. I § 2. Ferstle v. American Samoa Gov't, 7 A.S.R.2d 26.

In order to have a cognizable claim for deprivation of procedural due process, one must first possess a "liberty" or "property" interest in the government action complained of. Am. Sam. Const. art. I § 2. Ferstle v. American Samoa Gov't, 7 A.S.R.2d 26.

Procedural due process requirements are not fixed, but vary with circumstances and particular demands of the case; however, some sort of notice and hearing is required before an individual is finally deprived of a property interest. Am. Sam. Const. art. I § 2. Ferstle v. American Samoa Gov't, 7 A.S.R.2d 26.

Notice and hearing afforded to satisfy procedural due process need not be full judicial hearing. Am. Sam. Const. art. I § 2. Ferstle v. American Samoa Gov't, 7 A.S.R.2d 26.

To satisfy requirement of procedural due process, opportunity to be heard must be granted at a meaningful time and in a meaningful manner, but need not always be granted prior to the initial deprivation of property. Am. Sam. Const. art. I § 2. Ferstle v. American Samoa Gov't, 7 A.S.R.2d 26.

Ordinarily, due process is satisfied by proceedings less than a full evidentiary hearing prior to adverse administrative action, and the sufficiency of such proceedings is to be determined in light of 1) the private interest that will be affected by the official action, 2) the risk of an erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards, and 3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would impose. Am. Sam. Const. art. I § 2. Ferstle v. American Samoa Gov't, 7 A.S.R.2d 26.

Procedural due process is satisfied by piecemeal proceedings wherein parties were advised of the required showing, the proofs were considered promptly by the regulating agency, parties were advised of the agency's findings of insufficiency, parties submitted further proofs, agency considered proofs and again advised parties that such proof was insufficient, agency did not issue a denial and remained open to further submission of proofs. Am. Sam. Const. art. I § 2. Ferstle v. V. American Samoa Gov't, 7 A.S.R.2d 26.

Due process requirements of notice and opportunity to be heard are not triggered until adverse administrative action constituting a "final" deprivation of property has taken place. Am. Sam. Const. art. I § 2. Ferstle v. American Samoa Gov't, 7 A.S.R.2d 26.

Recurring and intentionally dilatory tactics by agency may constitute "final" action sufficient to trigger due process requirements of notice and hearing. Am. Sam. Const. art. I § 2. Ferstle v. American Samoa Gov't, 7 A.S.R.2d 26.

The expected benefit of a license which issues subject to articulated standards of qualification is a property interest giving rise to due process protection, although not to the full range of pre-deprivation procedural protections applicable to entitlements that are less contingent than the expectation of a license. Am. Sam. Const. art. I § 2. Ferstle v. American Samoa Gov't, 7 A.S.R.2d 26.

Because in most cases licensing will be a straightforward process, quasi-judicial evidentiary hearing in all licensing proceedings would needlessly increase government expenditures and such hearings are required only where the proposed action on a license application will be final. Am. Sam. Const. art. I § 2., A.S.C.A. § 31.1508. Ferstle v. American Samoa Gov't, 7 A.S.R.2d 26.

Both the territorial Administrative Procedure Act and the Department of Public Safety's Standard Operating Procedure, a statement of internal management not defined as an administrative rule under the APA, afford a person under investigation the basic due-process rights of notice of the hearing, including a concise statement of allegations, and a right to a hearing at which there is an opportunity to respond and present evidence and argument on all issues involved, and conduct cross-examination. A.S.C.A §§ 4.1025, 4.1026; SOP §§ 4.1.3, 4.1.4. Sala v. American Samoa Gov't, 21 A.S.R.2d 50.

As long as the claimant has notice and an opportunity to be heard, the claimant has been afforded adequate procedural due process. Faumuina v. American Samoa Gov’t Emp. Ret. Fund, 1 A.S.R.3d 112 (Trial Div. 1997).

Where employee was not given advance notice of the charges against him such that he could gather evidence and solicit witness testimony to present defense, such procedure did not substantially comport with the requirements of procedural due process. Faumuina v. American Samoa Gov’t Emp. Ret. Fund, 1 A.S.R.3d 112 (Trial Div. 1997).

Under the Administrative Procedures Act, hearings are to be conducted under minimal due process requirements and relaxed rules of procedure and evidence, which are set forth in A.S.C.A. §§ 4.2025-4.1037. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

§ 4(3) —Rules and Regulations

Administrative code provision purporting to free territorial utility from liability for any damages attributable to the presence of the utility's property on consumer's premises, was inconsistent with statute providing that utility could be sued, especially in light of public policy that provisions purporting to absolve the drafting party from liability for its own negligence should be strictly construed. A.S.A.C. § 12.0207(b). Fa'avae v. American Samoa Power Authority, 5 A.S.R.2d 53.

Administrative rule allowing rejection of bids on account of ambiguities in the solicitation, if construed to allow rejection of a bid which was clearly the low one on account of an ambiguity in the solicitation that had been cured by the bids themselves, would violate competitive bidding statute prohibiting changes prejudicial to fair competition. A.S.A.C. § 10.0232; A.S.C.A. § 12.0211. Pago Petroleum Products, Inc., v. American Samoa Power Authority, 10 A.S.R.2d 75.

ASG regulations which set out those situations in which non-competitive procedures are applicable do not supersede the mandatory statutory requirement relating to the utilization of an applicant supply-file system for the hiring and promotion of government employees. A.S.C.A. §§ 7.0204(b), 7.0205(b), 7.0206; A.S.A.C. § 4.0303(b). Leiato v. Personnel Advisory Board, 21 A.S.R.2d 25.

Existing coastal management rules and regulations were not nullified by the Development Planning Office's failure to formally promulgate new, statutorily required rules for administering the American Samoa Coastal Management Program. A.S.C.A. § 24.0506(a)-(b); A.S.A.C. §§ 26.0201 et seq. Le Vaomatua v. American Samoa Gov't, 23 A.S.R.2d 11.

An administrative rule adopted pursuant to the rulemaking process in the Administrative Procedure Act has the force and effect of law. A.S.C.A. §§ 1.0201(3), 4.1001-4.1010. Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55.

The Department of Public Safety’s rules governing early release programs are “rules” within the meaning of the Administrative Procedures Act (“APA”), and, therefore, must comport with the rulemaking procedures of the APA. A.S.G. v. Ki, 31 A.S.R.2d 118.

Rulemaking under the APA requires several steps, including giving meaningful advance notice of the terms or substance of the proposed action; providing interested persons reasonable opportunity to submit "data, views, and arguments, orally or in writing;" filing the rule with the Secretary of American Samoa, with the Clerk of the House of Representatives, and with the Secretary of the Senate; and making the rule available for public inspection. A.S.C.A. §§ 4.1004, 4.1005, 4.1008, 4.1010, 4.1020(a). A.S.G. v. Ki, 31 A.S.R.2d 118.

Rulemaking under the Administrative Procedures Act requires several procedural steps, including: 1) the rule-making agency must give at least 20 days notice of adoption, amendment, or repeal of any non-emergency rule, A.S.C.A. §§ 4.1004 and 4.1010, which must include statutorily required information, and be mailed to interested persons or publicized in all ASG operated broadcasting media, A.S.C.A. § 4.1004; 2) the agency must give all interested persons reasonable opportunity to submit “data, views, and arguments, orally or in writing,” either at a public or other suitable means, and consider those submissions before the rule is adopted, amended, or repealed, A.S.C.A. § 4.1005; 3) the agency must file the rule with the Secretary of American Samoa, and with the Clerk of the House of Representatives and the Secretary of the Senate of the Legislature, A.S.C.A. § 4.1008 (the rule become effective 20 days after the filing is complete, or later if required by statute or rule, A.S.C.A. § 4.1009(c)(1)); and 4) the agency must make the rule available for public inspection. A.S.C.A. § 4.1020(a). Congressional Church of Jesus in Samoa v. A.S.G., 31 A.S.R.2d 122.

Except as to any person who has actual knowledge of a rule, no agency rule is valid or effective until the public inspection requirement, A.S.C.A. § 4.1020(a), has been met. Congressional Church of Jesus in Samoa v. A.S.G., 31 A.S.R.2d 122.

The court will accept an agency’s letter and printed rule as demonstrating substantial compliance with all applicable procedures, including a public hearing and public inspection, except the requisite filing. Congressional Church of Jesus in Samoa v. A.S.G., 31 A.S.R.2d 122.

Despite procedural deficiencies, administrative rules are valid and enforceable against persons who have actual knowledge of the rules. A.S.C.A. § 1009(b). Congressional Church of Jesus in Samoa v. A.S.G., 31 A.S.R.2d 122.

When a plaintiff files a tort claim with the Attorney General at any time within the two-year period provided by § 43.1204, the running of the two-year period is stayed and the statute is tolled for such time as the Attorney General takes to act upon the claim or until such time as the claim is denied by default. Bradcock v. American Samoa Gov’t, 1 A.S.R.3d 42 (App. Div. 1997).

Administrative rules must not only be consistent with the statute under which they are promulgated, but also within the scope of the legislative delegation. Lauvao v. American Samoa Gov’t, 1 A.S.R.3d 224 (Land & Titles Div. 1997).

The administrative rules contained in Title 10, Chapter 2 of the American Samoa Administrative Code were promulgated by the Chief Procurement Officer pursuant to statutory authority so as to advance a particular government purpose: to maximize integrity in the procurement of construction, goods, and services. See A.S.C.A. § 12.0214; A.S.C.A. § 10.0202. A.S.C.A. § 10.0292(h)(2)(B) does not regulate government employee ethics outside the context of procurement. Lauvao v. American Samoa Gov’t, 1 A.S.R.3d 224 (Land & Titles Div. 1997).

A quasi-judicial proceeding where a panel appointed by the governor reviews the decision of an administrative agency is governed by criteria of fair play under the Administrative Procedures Act, A.S.C.A. §4.1044, and is not governed by the standards of law, procedural rules, and evidentiary rules reserved for appellate review of judicial decisions. B.H.P. Petroleum South Pac., Inc. v. American Samoa Gov’t, 2 A.S.R.3d 1 (App. Div. 1998).

An administrative rule adopted under the Administrative Procedures Act, A.S.C.A. §§ 4.1001-.1044 has the full force and effect of law. B.H.P. Petroleum South Pac., Inc. v. American Samoa Gov’t, 2 A.S.R.3d 10 (App. Div. 1998).

Under the Administrative Procedures Act, hearings are to be conducted under minimal due process requirements and relaxed rules of procedure and evidence, which are set forth in A.S.C.A. §§ 4.2025-4.1037. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

A.S.C.A. § 4.0607, which requires a “trial de novo” in all proceedings before the A.L.J. is limited in application to sections 1-5 of the Administrative Law Judge Act. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

§ 4(4) —Agency Interpretation of Rules & Regulations

Considerable deference is given to administrative decisions involving an agency’s construction of its governing statute and regulations only where the interpretation is consistent with the statutory mandate and does not frustrate legislative policy; administrative rules cannot supersede existing statutory authority where they directly conflict. Reid v. Tuipine, 4 A.S.R.3d 9 (App. Div. 2000).

Administrative decisions involving the construction of an agency’s governing statute and regulations are given considerable deference where it appears that agency’s decision is based on a permissible construction of the statute. Tuilefano v. Attorney General, 4 A.S.R.3d 67 (Trial Div. 2000).

§ 4(5) —Hearings and Adjudications

Procedural due process requirements are not fixed, but vary with circumstances and particular demands of the case; however, some sort of notice and hearing is required before an individual is finally deprived of a property interest. Am. Sam. Const. art. I § 2. Ferstle v. American Samoa Gov't, 7 A.S.R.2d 26.

Notice and hearing afforded to satisfy procedural due process need not be full judicial hearing. Am. Sam. Const. art. I § 2. Ferstle v. American Samoa Gov't, 7 A.S.R.2d 26.

Ordinarily, due process is satisfied by proceedings less than a full evidentiary hearing prior to adverse administrative action, and the sufficiency of such proceedings is to be determined in light of 1) the private interest that will be affected by the official action, 2) the risk of an erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards, and 3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would impose. Am. Sam. Const. art. I § 2. Ferstle v. American Samoa Gov't, 7 A.S.R.2d 26.

Procedural due process is satisfied by piecemeal proceedings wherein parties were advised of the required showing, the proofs were considered promptly by the regulating agency, parties were advised of the agency's findings of insufficiency, parties submitted further proofs, agency considered proofs and again advised parties that such proof was insufficient, agency did not issue a denial and remained open to further submission of proofs. Am. Sam. Const. art. I § 2. Ferstle v. V. American Samoa Gov't, 7 A.S.R.2d 26.

Because in most cases licensing will be a straightforward process, quasi-judicial evidentiary hearing in all licensing proceedings would needlessly increase government expenditures and such hearings are required only where the proposed action on a license application will be final. Am. Sam. Const. art. I § 2., A.S.C.A. § 31.1508. Ferstle v. American Samoa Gov't, 7 A.S.R.2d 26.

Appellant's claim that the trial court failed to apply certain evidentiary presumptions was without merit, as in administrative proceedings the agency rather than the court is to weigh the evidence and find facts; evidentiary presumptions used to facilitate fact-finding should be applied at the agency level and not at the level of judicial review. Continental Insurance Co. v. Workmen's Compensation Commission, 8 A.S.R.2d 152.

In an administrative proceeding a fact need not be proved beyond a reasonable doubt or even by clear and compelling evidence in order to be proved conclusively; the applicable standard is, rather, whether the fact appears from the evidence to be more probably true than not. Solomona v. Governor of American Samoa, 18 A.S.R.2d 14.

Regarding proposed land transfers, for which the Land Commission must provide the government with recommendations, the Land Commission should hold public hearings and must give reasonable notice of its deliberations to interested persons, regardless of the forum selected to "study" proposed transactions. Vaimaona v. Tuitasi, 22 A.S.R.2d 1.

Plaintiffs carry a legal duty to file administrative claims within a reasonable time or they will be barred by the doctrine of laches. Bradcock v. American Samoa Gov't, 28 A.S.R.2d 66.

The statute of limitations may begin to run before the filing of an administrative claim if the prospective plaintiff unreasonably delays the administrative filing. Bradcock v. American Samoa Gov't, 28 A.S.R.2d 182.

A government tort administrative claim filed with the ASG Attorney General pursuant to A.S.C.A. § 43.1205 is deemed effectively denied if three months elapse after the filing of the claim with no reply by the Attorney General. Bradcock v. American Samoa Gov’t, 1 A.S.R.3d 42 (App. Div. 1997).

Under A.S.C.A. § 4.1041(b) a stay of an administrative decision may be issued on appropriate terms without an evidentiary hearing. B.H.P. Petroleum South Pac., Inc. v. American Samoa Gov’t, 2 A.S.R.3d 1 (App. Div. 1998).

Judicial review of a procurement decision lies in the first instance before the Office of the Administrative Law Judge. Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

Where complaint went beyond alleging of noncompliance with administrative regulations to state intentional racial discrimination, it did not belong at the administrative level. Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

In aid of its jurisdiction, the Land and Titles Division of the High Court may invoke the procedural flexibility permitted by A.S.C.A. § 3.0242(b) where it finds it most consistent with natural justice and convenience to continue the case and remand it to the Land Commission. Anoa`i v. Lai, 6 A.S.R.3d 297 (Land & Titles Div. 2002).

§ 5 Judicial Review of Administrative Decisions

SEE CIVIL PROCEDURE § 11(11) – ADMINISTRATIVE AGENCY DECISIONS

§ 5(1) —Finality and Exhaustion

Approach to question whether administrative decision is final and therefore appealable is essentially pragmatic concern for just, speedy, and inexpensive determination of every action. French v. Fa’alevao, 1 A.S.R.2d 44 (App. Div. 1980).

Where statute provided for appeal to board of registration from a denial of voter registration by election officer, and for judicial review of an adverse decision of the board of registration, court would not issue writ of mandamus to election officer ordering him to register prospective voter who had not yet appealed to board of registration. A.S.C.A. §§ 6.0224, 6.0230. Siofele v. Shimasaki, 8 A.S.R.2d 81.

One who challenges the right of another person to be registered or to vote as a qualified elector must exhaust administrative remedies before submitting the matter to court. A.S.C.A. §§ 6.0230 et seq. Election Office v. Tuika, 9 A.S.R.2d 1.

Court would not exercise its power to render a declaratory judgment where the party seeking the judgment had not exhausted his administrative remedies. Election Office v. Tuika, 9 A.S.R.2d 1.

Under statute requiring plaintiff to file an administrative claim before bringing action against the government, administrative claim by mother that she and her family had suffered damages adequately notified the government of the claims of her minor children, so that suit by minors should not be dismissed for failure to exhaust administrative remedies. A.S.C.A. § 43.1205(a). Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

Requirement that a claimant against a government agency must exhaust administrative remedies before bringing suit comprises both waiveable and non-waiveable elements. Pago Petroleum Products, Inc., v. American Samoa Power Authority, 10 A.S.R.2d 75.

Laws prescribing detailed procedures for presenting claims to an agency, designed to give the agency a fair chance to review and respond to the claim before being hauled into court, may be waived by the agency. Pago Petroleum Products, Inc., v. American Samoa Power Authority, 10 A.S.R.2d 75.

Neither administrative agency nor court may dispense with requirements designed to ensure that case admits of judicial resolution: that there be a genuine dispute between the claimant and the agency on at least one specific and identifiable question of law and fact. Pago Petroleum Products, Inc., v. American Samoa Power Authority, 10 A.S.R.2d 75.

Jurisdictional requirement that an agency decision be final before claimant challenges it in court may not be waived. Pago Petroleum Products, Inc., v. American Samoa Power Authority, 10 A.S.R.2d 75.

Insofar as territorial statute prescribing final decision by administrative agency as prerequisite to judicial review simply gave the agency the right to insist on exhaustion of its internal review procedures, it was waiveable by the agency, but insofar as it incorporated the rule that courts should decide real controversies it could not be waived. A.S.C.A. § 4.1040(a). Pago Petroleum Products, Inc., v. American Samoa Power Authority, 10 A.S.R.2d 75.

Administrative agency decision to issue a new invitation for bids for fuel supply contract was a final decision rejecting bidder's contention that it had a right to the contract as a result of being the low bidder in the original bidding procedure. A.S.C.A. § 4.1040(a). Pago Petroleum Products, Inc., v. American Samoa Power Authority, 10 A.S.R.2d 75.

Whether an administrative agency decision was lawful and whether it was final are separate questions; a decision may be substantively illegal and yet be the real and settled position of the agency. A.S.C.A. § 4.1040(a). Pago Petroleum Products, Inc., v. American Samoa Power Authority, 10 A.S.R.2d 75.

Administrative agency decision is final, for the limited purpose of giving rise to a justiciable controversy, even if there were procedural defects in the process by which it was made, provided that it is meant to reflect the settled position of the agency and leaves the parties genuinely adverse. A.S.C.A. § 4.1040(a). Pago Petroleum Products, Inc., v. American Samoa Power Authority, 10 A.S.R.2d 75.

Decision by board of directors of administrative agency to reject bidder's claim of entitlement to fuel supply contract was final and gave rise to a justiciable controversy, notwithstanding the absence of a quorum at the board meeting, where (1) agency's chief executive officer implemented the decision by canceling the original award and issuing an invitation for new bids, and (2) in subsequent litigation, agency did not assert its continuing discretion to review the decision but instead sought a judicial order that the new bidding process go forward. A.S.C.A. § 4.1040(a). Pago Petroleum Products, Inc., v. American Samoa Power Authority, 10 A.S.R.2d 75.

Where a statute or rule of common requires an administrative claim to be presented and prohibits suit until the claim has been rejected or a period for official action has expired, the cause of action does not accrue and the limitation period does not begin to run until the claim is rejected or the stated period expires. Mataipule v. Tifaimoana Partnership, Ltd. (Mem), 14 A.S.R.2d 100.

Filing of the administrative claim required as a prerequisite to suit under the Government Tort Liability Act may toll the Act's statute of limitations. Mataipule v. Tifaimoana Partnership, Ltd. (Mem), 14 A.S.R.2d 100.

Cause of action accrues under the Government Tort Liability Act when the administrative remedies under the Act are exhausted, because plaintiff cannot seek judicial relief until then. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48.

An administrative claim is a jurisdictional prerequisite to a suit against ASG under the Government Tort Liability Act. A.S.C.A. §§ 43.1201 et seq. Rakhshan v. American Samoa Gov't, 20 A.S.R.2d 1.

Although a failure to exhaust administrative remedies does not absolutely preclude judicial action, such action is permissible only in exceptional circumstances, including the exception for violations of statutory or constitutional rights. Sala v. American Samoa Gov't, 21 A.S.R.2d 50.

To file suit regarding disciplinary matters, a public employee need not await a final agency decision only if a preliminary agency decision clearly and unambiguously violates a statutory or constitutional right of the employee or if the prescribed administrative process is clearly inadequate to prevent irreparable injury. Sala v. American Samoa Gov't, 21 A.S.R.2d 50.

The requirement of filing an administrative claim before filing suit under the Government Tort Liability Act is jurisdictional. A.S.C.A. § 43.1205. Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 23.

Although based on the Federal Tort Liability Act, the territorial Government Tort Liability Act does not contain the former’s exception for third-party complaints from the requirement that an administrative-claim is a prerequisite to filing suit. 28 U.S.C. § 2675; A.S.C.A. § 43.1205. Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 23.

Though modeled on the Federal Tort Claims Act, as amended in 1966, the territorial Government Tort Liability Act does not contain the F.T.C.A.'s exception from the administrative-claim prerequisite for a cause of action asserted by third-party complaint, cross-claim, or counterclaim. 28 U.S.C. § 2675(a); A.S.C.A. § 43.1205(a). Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 88.

Being an extraordinary remedy, a preliminary injunction is granted only when clearly warranted and may be denied when administrative remedies have not been exhausted. A.S.C.A. § 4.1040. Le Vaomatua v. American Samoa Gov't, 23 A.S.R.2d 11.

Although the Attorney General's decision on an administrative claim is final and conclusively binding on all ASG officers, except when procured by fraud, his action cannot result in a waiver or estoppel preventing ASG from raising a jurisdictional issue at any stage of future litigation. A.S.C.A. § 43.1206. Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55.

The sum-certain requirement for administrative claims filed against ASG is both statutorily and administratively an integral part of the jurisdictional administrative-claim process. A.S.C.A. § 43.1203(c); A.S.A.C. § 43.0103(a). Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55.

When the issue of the alienation of a parcel of communal land was improperly referred to the Secretary of Samoan Affairs instead of being the subject of a Land Commission hearing, the action was dismissed as being prematurely before the court. Tuioti v. Fonoti, 24 A.S.R.2d 100.

A.S.A.C. § 26.0320(h) requires that "[w]ithin 10 days after receipt of the decision the applicant or any other interested party may file a written motion for reconsideration." McGuire v. Zoning Board, 26 A.S.R.2d 59.

When a statute prescribes administrative remedies, which must be exhausted before judicial review is allowed, these procedures are jurisdictional. McGuire v. Zoning Board, 26 A.S.R.2d 59.

Judicial review is available to a person who has exhausted all administrative remedies available within an agency and who is aggrieved by a final decision in a contested case. McGuire v. Zoning Board, 26 A.S.R.2d 59.

Whether compelled by statute or exercised as a matter of judicial discretion, the long settled rule of judicial administration is that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy had been exhausted. McGuire v. Zoning Board, 26 A.S.R.2d 59.

When a statute prescribes administrative remedies, which must be exhausted before judicial review is allowed, these procedures are jurisdictional. McGuire v. Zoning Board, 26 A.S.R.2d 59.

The Zoning Board, and not this court, has the jurisdiction to decide the issues, at the administrative level, where court has already determined that it lacked jurisdiction to decide these issues based on party's failure to exhaust administrative remedy. McGuire v. Zoning Board, 26 A.S.R.2d 59.

Filing a complaint before administrative remedies have been exhausted fails to invoke the court's jurisdiction, but such a filing is sufficient to toll the statute, on the theory that filing an administrative claim constituted the beginning of an action. Randall v. American Samoa Gov't, 28 A.S.R.2d 70.

Courts will not grant declaratory judgments until administrative remedies have been exhausted unless such administrative remedies are inadequate. Moetoto v. Tauileva, 28 A.S.R.2d 144.

It is appropriate to stay proceedings pending completion of the dispute resolution process before the Secretary of Samoan Affairs. Meredith v. Koko, 28 A.S.R.2d 149.

Where prior resort to a mandatory administrative procedure is a prerequisite to filing a claim in court, the running of the limitations period will be tolled during the administrative proceeding. Bradcock v. American Samoa Gov’t, 1 A.S.R.3d 42 (App. Div. 1997).

In most declaratory relief actions, exhaustion of administrative remedies is a prerequisite to judicial review. Tauia v. American Samoa Gov’t, 1 A.S.R.3d 64 (Trial Div. 1997).

Dismissal of government employment action without prejudice was proper where dispute had not undergone three-part administrative procedure. Tauia v. American Samoa Gov’t, 1 A.S.R.3d 64 (Trial Div. 1997).

Under three-part administrative procedure, government employee submits written grievance to supervisor, Director of Manpower Resources conducts an informal hearing and issues a “final decision,” after which employee may appeal to Personnel Advisory Board. Tauia v. American Samoa Gov’t, 1 A.S.R.3d 64 (Trial Div. 1997).

In order to obtain judicial review of an administrative decision, a potential plaintiff must exhaust all administrative remedies within the agency. McGuire v. Zoning Board, 3 A.S.R.3d 15 (App. Div. 1999).

The administrative remedies available to an individual aggrieved by a decision of the Zoning Board consist of an initial hearing and a procedure for reconsideration of the Board’s decision. McGuire v. Zoning Board, 3 A.S.R.3d 15 (App. Div. 1999).

The requirement that a litigant exhaust his or her administrative remedies before bringing suit is an intensely practical one which may be judicially excused when the purposes of the requirement would not be served by requiring adherence. McGuire v. Zoning Board, 3 A.S.R.3d 15 (App. Div. 1999).

Where administrative remedies had been exhausted by entity’s representative, not formally appearing on behalf of entity but appearing for himself, entity was nonetheless entitled to judicial review, as purposes behind exhaustion requirement were met—case was not premature, hearing and reconsideration had taken place, and Board had ample opportunity to review and reverse its decision. McGuire v. Zoning Board, 3 A.S.R.3d 15 (App. Div. 1999).

The court does not have jurisdiction to review a final order of the Chief Procurement Officer (CPO) in the absence of a final decision by the Governor on the administrative appeal of the CPO’s decision. Island’s Choice, Inc. v. American Samoa Gov’t, 3 A.S.R.3d 49 (App. Div. 1999).

Where a party has exhausted all administrative remedies within an agency and is aggrieved by a final (or effectively dispositive) decision in a contested case, the party is entitled to judicial review as prescribed under A.S.C.A. § 4.1040 et seq. Island’s Choice, Inc. v. American Samoa Gov’t, 3 A.S.R.3d 49 (App. Div. 1999).

A party aggrieved by a preliminary, procedural or intermediate agency action or ruling need not exhaust all administrative remedies prior to filing for judicial review if review of the final agency decision would not provide an adequate remedy. Island’s Choice, Inc. v. American Samoa Gov’t, 3 A.S.R.3d 49 (App. Div. 1999).

Under the broad legal themes of separation of powers, sovereign immunity, exhaustion of administrative remedies and judicial restraint, immediate review of an administrative decision will be denied where no grounds are demonstrated that remaining administrative remedies are inadequate. Island’s Choice, Inc. v. American Samoa Gov’t, 3 A.S.R.3d 49 (App. Div. 1999).

The administrative remedies available to an individual under A.S.C.A. § 4.1040, where 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, the court lacks judicial review jurisdiction, and also lacks the authority to exercise its ancillary powers to issue a stay. Island’s Choice, Inc. v. American Samoa Gov’t, 3 A.S.R.3d 49 (App. Div. 1999).

Where plaintiff properly files administrative claim with Attorney General’s office but said office fails to dispose of the claim within the prescribed 90 day time period, the claim is deemed denied and plaintiff has satisfied the prerequisite to exhaust administrative remedies. Afele-Fa`amuli v. Am. Samoa Cmty. Coll., 4 A.S.R.3d 219 (Trial Div. 2000).

Where party had moved for reconsideration or new trial before Administrative Law Judge and had also petitioned for judicial review, motion for new trial needed to be decided before judicial review could take place. Forsgren v. American Samoa Gov't, 5 A.S.R.3d 13 (App. Div. 2001).

With the possible exception of conducting the final administrative hearing in the administrative rule procurement bid dispute process under A.S.C.A. § 4.0604(e), the Administrative Law Judge Act provides no constitutionally permissible authority for the Administrative Law Judge to conduct a “trial de novo” as an “appeal” from the final administrative decision of another agency of government. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

§ 5(2) —Procedure

Appeals of Zoning Board decisions proceed in like manner to appeals under the Administrative Procedures Act, in that the administrative record must be submitted within 30 days and the court is confined to that record, though it may receive evidence to supplement the record. Ala`ilima v. Zoning Board, 25 A.S.R.2d 146.

Appeals to the High Court from the Zoning Board "may be taken in like manner to appeals under the Administrative Procedure Act. McGuire v. Zoning Board, 26 A.S.R.2d 59.

Within 30 days from the service of the petition for appellate review, an agency is to send the court the record of the proceedings in the matter under review. A.S.C.A. § 4.1042; A.C.R. 17(a). McGuire v. Zoning Board, 26 A.S.R.2d 59.

Appellate review is confined to the record. On a party's request, "the court shall receive briefs and hear oral argument"; and the court has the discretion to receive evidence to supplement the record. A.S.C.A. § 4.1043(a). McGuire v. Zoning Board, 26 A.S.R.2d 59.

When reviewing a decision of an administrative agency, the High Court may not consider evidence absent in the administrative record unless the evidence (a) is necessary and (b) supplements or explains the evidence contained in the administrative record. A.S.C.A. § 4.1043(a). Taufete'e v. American Samoa Gov't, 27 A.S.R.2d 80.

A.S.C.A. § 4.1044 provides for a remand where substantial rights of the petitioner have been prejudiced because the arbitrators’ decision violates of applicable constitutional or statutory provisions, or if it is made upon unlawful procedure. American Samoa Gov’t v. Annandale, 1 A.S.R.3d 19 (App. Div. 1997).

In reviewing an arbitration award, the reviewing Court need not determine the applicable standard of review where it is apparent that the arbitrators failed to follow the specific statutory procedures. American Samoa Gov’t v. Annandale, 1 A.S.R.3d 19 (App. Div. 1997).

A.S.C.A. § 43.1010 requires that the arbitration award contain findings or conclusions of the panel; reflecting how the award was determined. American Samoa Gov’t v. Annandale, 1 A.S.R.3d 19 (App. Div. 1997).

Where an award does not contain specific, written findings or conclusions of the panel, but merely arrives at amount, the award should be remanded. American Samoa Gov’t v. Annandale, 1 A.S.R.3d 19 (App. Div. 1997).

To determine whether a given individual or organization has standing to seek judicial review of a final administrative decision, the petitioner must demonstrate that he, she or it has (a) suffered an “injury in fact” and (b) is arguably within the statute’s “zone of interests.” McGuire v. Zoning Board, 3 A.S.R.3d 15 (App. Div. 1999).

Under A.S.C.A. § 4.1041, reviewable agency decisions or rulings may be instituted by filing a petition in the appellate division within 30 days, but the mere filing of the petition does not automatically stay the administrative decision to be reviewed. Island’s Choice, Inc. v. American Samoa Gov’t, 3 A.S.R.3d 49 (App. Div. 1999).

Once a petition for review is filed, either the agency may grant, or the court may order, a stay on appropriate terms. Island’s Choice, Inc. v. American Samoa Gov’t, 3 A.S.R.3d 49 (App. Div. 1999).

When administrative law matter becomes ripe for review by denial of party’s motion for reconsideration or new trial, petitioner should thereafter file entire record of the administrative proceeding, including transcripts of hearings, within 30 days of request to proceed. Forsgren v. American Samoa Gov't, 5 A.S.R.3d 13 (App. Div. 2001).

The Administrative Procedures Act affords an aggrieved party the right, upon exhausting the administrative decision making process, to limited judicial review of an agency’s final decision by the Appellate Division of the High Court. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

With the possible exception of conducting the final administrative hearing in the administrative rule procurement bid dispute process under A.S.C.A. § 4.0604(e), the Administrative Law Judge Act provides no constitutionally permissible authority for the Administrative Law Judge to conduct a “trial de novo” as an “appeal” from the final administrative decision of another agency of government. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

The Trial Division of the High Court is not bound by an erroneous salary calculation determined by the American Samoa Government Wage and Hour Board. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 91 (Trial Div. 2002).

§ 5(3) —Scope of Review

Territorial workmen's compensation statute, under which reviewing court could set aside decision of workmen's compensation commission only if it was "not in accordance with the law," precluded court from reversing a finding of fact by the commission for which there was substantial evidence in the record of the commission's proceeding. A.S.C.A. § 32.0652. Continental Insurance Co. v. Workmen's Compensation Commission, 7 A.S.R.2d 105. 5

Court reviewing findings of fact by workmen's compensation would not reverse a finding unless a reasonable person could not have concluded as the commission did from the evidence in the record. A.S.C.A. § 32.0652. Continental Insurance Co. v. Workmen's Compensation Commission, 7 A.S.R.2d 105.

Workmen's compensation commission decision should be overturned on appeal only if it is not in accordance with the law. A.S.C.A. § 32.0652. Star-Kist Samoa, Inc., v. Workmen's Compensation Commission, 7 A.S.R.2d 149.

Workmen's compensation commission decision should be upheld by reviewing court if supported by substantial evidence, whether or not the court would have reached the same conclusion from the evidence as the commission did. A.S.C.A. § 32.0652. Star-Kist Samoa, Inc., v. Workmen's Compensation Commission, 7 A.S.R.2d 149.

Court will not disturb workmen's compensation commission decision if record contains evidence from which a reasonable person could conclude that the injury and death were work-related and it does not appear that the commission arbitrarily and capriciously disregarded substantial evidence to the contrary. A.S.C.A. §§ 32.0642, 32.0652. Star-Kist Samoa, Inc., v. Workmen's Compensation Commission, 7 A.S.R.2d 149.

Court should grant an interlocutory stay of an administrative board decision only if there is a substantial likelihood that the petitioner will prevail on the merits and the petitioner will be greatly or irreparably injured if the stay is not granted. Leti v. Immigration Board, 8 A.S.R.2d 107.

Decision of workmen's compensation commission may be set aside only if the decision was not made in accordance with law. A.S.C.A. § 32.0652. Continental Insurance Co. v. Workmen's Compensation Commission, 8 A.S.R.2d 152.

Finding by workmen's compensation commission that there was an "injury or death arising out of and in the course of employment" must be supported by substantial evidence. Continental Insurance Co. v. Workmen's Compensation Commission, 8 A.S.R.2d 152.

Trial court correctly applied the substantial evidence standard where it upheld a workmen's compensation commission decision "as long as reasonable people could differ on the facts presented to the Commission." Continental Insurance Co. v. Workmen's Compensation Commission, 8 A.S.R.2d 152.

Substantial evidence test in judicial review of administrative decision is limited to whether a reasoning mind could reasonably have reached the factual conclusion the agency reached, and reviewing court may neither find its own facts nor substitute its own judgment for that of the agency. Continental Insurance Co. v. Workmen's Compensation Commission, 8 A.S.R.2d 152.

Appellant's claim that the trial court failed to apply certain evidentiary presumptions was without merit, as in administrative proceedings the agency rather than the court is to weigh the evidence and find facts; evidentiary presumptions used to facilitate fact-finding should be applied at the agency level and not at the level of judicial review. Continental Insurance Co. v. Workmen's Compensation Commission, 8 A.S.R.2d 152.

Finding of fact based on no evidence is an error of law and thus a workmen's compensation commission award which is not supported by any evidence will be reversed, but where the commission has statutory power to find the facts its findings must be affirmed even if the reviewing court believes the evidence points the other way. Continental Insurance Co. v. Workmen's Compensation Commission, 8 A.S.R.2d 152.

Workmen's compensation commission order should be set aside only if it was based on "whimsy evidence"; order should be affirmed if reasonable people might differ as to the weight of the evidence. Continental Insurance Co. v. Workmen's Compensation Commission, 8 A.S.R.2d 152.

Administrative body's failure to act may be addressed through extraordinary writ proceedings. T.C.R.C.P. Rule 88. Siofele v. Hall, 12 A.S.R.2d 9.

The Workmen's Compensation Commission's findings of fact and inferences derived therefrom are to be upheld by the High Court if supported by "substantial evidence," using a reasonableness standard. Continental Insurance Co. v. Workmen's Compensation Commission, 15 A.S.R.2d 130.

That the evidence might also have supported a different conclusion is insufficient to warrant reversal of the Workmen's Compensation Commission's conclusions. Continental Insurance Co. v. Workmen's Compensation Commission, 15 A.S.R.2d 130.

An interlocutory appeal of an agency action or ruling is available only if review of the final agency decision would not provide an adequate remedy. A.S.C.A. § 4.1040(c). Sala v. American Samoa Gov't, 20 A.S.R.2d 80.

A court gives considerable deference to administrative decisions involving an agency's construction of its governing statute and regulations, unless the court deems the interpretation to be inconsistent with a statutory mandate or to frustrate legislative policy. National Pacific Insurance Co. v. Commissioner of the American Samoa Gov't's Workmen's Compensation Commission, 22 A.S.R.2d 15.

If a Workmen's Compensation Commission's statutory interpretation is permissible under the statutes and regulations, the court should defer to the Commission's decision; but if that construction is inconsistent with a statutory mandate, frustrates legislative policy, or renders the statutes ineffective, the court must set aside the decision. A.S.C.A. § 32.0652(a). National Pacific Insurance Co. v. Commissioner of the American Samoa Gov't's Workmen's Compensation Commission, 22 A.S.R.2d 15.

Being an extraordinary remedy, a preliminary injunction is granted only when clearly warranted and may be denied when administrative remedies have not been exhausted. A.S.C.A. § 4.1040. Le Vaomatua v. American Samoa Gov't, 23 A.S.R.2d 11.

If made upon unlawful procedure, a decision of the Immigration Board may be reversed, modified, or remanded for further proceedings by the Appellate Division of the High Court. A.S.C.A. § 41.0212(3). Farapo v. American Samoa Gov't, 23 A.S.R.2d 136.

The fact that this court has held, on one occasion, that substantial compliance with statutory requirements was sufficient, should not yield an expectation that public officials will ordinarily receive judicial recognition of their faulty acts. Tuitasi v. Lauofo, 25 A.S.R.2d 57.

Appellate review is confined to the record. On a party's request, "the court shall receive briefs and hear oral argument"; and the court has the discretion to receive evidence to supplement the record. A.S.C.A. § 4.1043(a). McGuire v. Zoning Board, 26 A.S.R.2d 59.

The court is not to reweigh the evidence on factual questions and is to give "appropriate weight to the agency's experience, technical competence, and specialized knowledge." A.S.C.A. § 4.1043(b). McGuire v. Zoning Board, 26 A.S.R.2d 59.

When reviewing a decision of an administrative agency, the High Court may not consider evidence absent in the administrative record unless the evidence (a) is necessary and (b) supplements or explains the evidence contained in the administrative record. A.S.C.A. § 4.1043(a). Taufete'e v. American Samoa Gov't, 27 A.S.R.2d 80.

Post hoc rationalizations for an agency decision, which are absent from the administrative record, are not admissible upon judicial review of the decision. A.S.C.A. § 4.1043(a). Taufete'e v. American Samoa Gov't, 27 A.S.R.2d 80.

Where evidence consists of affidavits from individuals who were neither employees of the administrative decisionmaking body nor involved in the administrative proceedings, and the affidavits do not purport to clarify or explain evidence from the existing record, the evidence is not supplemental to the administrative record and is not admissible upon judicial review of the decision. A.S.C.A. § 4.1043(a). Taufete'e v. American Samoa Gov't, 27 A.S.R.2d 80.

Courts will not grant declaratory judgments until administrative remedies have been exhausted unless such administrative remedies are inadequate. Moetoto v. Tauileva, 28 A.S.R.2d 144.

A.S.C.A. § 4.1040 provides for appellate review of a final administrative decision in a "contested case." In such cases, the Appellate Division may reverse or modify an agency decision if it is contrary to law or based on factual findings which are "clearly erroneous," or if it is otherwise arbitrary, capricious or abusive of discretion. A.S.C.A. § 4.1043-44. Pen v. Lavata`i, 30 A.S.R.2d 10.

Certain administrative functions, such as the determination of whether an alien should be deported according to existing immigration and probably the determination of whether an alienation of land is improvident within the meaning of A.S.C.A. § 37.0203(c), are beyond the reach of any judicial review because they are committed to agency discretion by law. Pen v. Lavata`i, 30 A.S.R.2d 10.

An administrative decision does not concern a contested case under A.S.C.A § 4.1040 when a party was not represented at Land Commission hearings and could not contest the lease. Pen v. Lavata`i, 30 A.S.R.2d 10.

Appellate courts lack subject matter jurisdiction to consider issues that were not presented to the administrative agency. Pen v. Lavata`i, 30 A.S.R.2d 10.

There is a strong presumption in favor of judicial review of agency action, which can be overcome only by clear and convincing evidence that the Fono intended to cut off review above the agency level. The court is not convinced that the Fono intended the Territorial Correctional Facility to conduct prison affairs beyond the purview of the High Court. A.S.G. v. Ki, 31 A.S.R.2d 118.

Under A.S.C.A. § 4.1044, the court may reverse, modify or remand the decision of an agency if substantial rights of a petitioner have been prejudiced by an agency’s improper or unlawful decision under this statute. Kruse v. Personnel Advisory Bd., 2 A.S.R.3d 3 (App. Div. 1998).

Under A.S.C.A. §§ 3.0208(c), 4.1040-.1044 and 10.0282, the court has authority to review administrative decisions in the procurement process; the review is confined to the record, and to questions of law, not fact. B.H.P. Petroleum South Pac., Inc. v. American Samoa Gov’t, 2 A.S.R.3d 10 (App. Div. 1998).

Under the Administrative Procedures Act, the High Court must, in most instances confine its review of administrative decisions to the record and decision as developed and issued by the agency. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

Under the Administrative Procedures Act, the Court may not substitute its judgment on the weight of the facts for that of the agency and the Court is required to give appropriate weight to the agency’s experience, technical competence and specialized knowledge. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

When reviewing an administrative decision, the High 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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

The effective scope of any legislative act is limited to the subject embraced in its title and matters properly connected thereto. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

Review of a final administrative decision for errors of law is a matter ordinarily within the exclusive jurisdiction of the Appellate Division of the High Court. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 91 (Trial Div. 2002).

§ 5(4) —Disposition

Court would not exercise its power to render a declaratory judgment where the only relief it could grant would require the court to assume a supervisory role over administrative processes. Election Office v. Tuika, 9 A.S.R.2d 1.

Chief election officer did not act arbitrarily or capriciously in denying petitioner's eligibility for election where, although petitioner supplied all the information requested on candidacy forms, he refused reasonable requests by the chief election officer for further information relevant to his eligibility. Siofele v. Shimasaki, 9 A.S.R.2d 3.

Court could grant review by mandamus of chief election officer's determination that petitioner was ineligible to run for elective office, where statutory scheme was silent as to appeals procedure and circumstances appeared to render any alternative review procedures inadequate. T.C.R.C.P. Rules 87, 88. Siofele v. Shimasaki, 9 A.S.R.2d 3.

Court would not compel chief election officer to find the petitioner a bona fide resident where petitioner was not on the current voter registration lists, was not present in the territory during the period at issue, refused to supply additional information requested by the chief election officer, and was identified as a registered voter in another jurisdiction during the period at issue. Siofele v. Shimasaki, 9 A.S.R.2d 3.

An agency's head may only reassign an employee involuntarily with the concurrence of the Director of Human Resources and with a finding that the reassignment be in the best interests of the government; failure to follow the regulatory standard is arbitrary and an error of law. A.S.C.A. § 4.1044(6); A.S.A.C. § 4.0804(b). Leiato v. Personnel Advisory Board, 21 A.S.R.2d 25.

The Workmen's Compensation Commission's decision that the hospital's off-island medical-referral procedure does not apply to those covered by the workmen's compensation statute is a permissible interpretation of applicable statutes and regulations, so the court will defer to that decision. A.S.C.A. § 11.0312. National Pacific Insurance Co. v. Commissioner of the American Samoa Gov't's Workmen's Compensation Commission, 22 A.S.R.2d 15.

A preliminary injunction is unwarranted when an environmental organization fails to plead specific harm to itself or its members and when it did not seek a stop order from the territorial Development Planning Office. A.S.C.A. §§ 4.1040, 24.0505(c). Le Vaomatua v. American Samoa Gov't, 23 A.S.R.2d 11.

Courts reviewing federal agency actions under the Administrative Procedures Act are limited to compelling agency actions or holding actions unlawful. Courts cannot grant monetary relief. Island’s Choice, Inc. v. American Samoa Gov't, 5 A.S.R.3d 3 (App. Div. 2001).

In American Samoa, pecuniary relief is not available in judicial review of administrative proceedings. Island’s Choice, Inc. v. American Samoa Gov't, 5 A.S.R.3d 3 (App. Div. 2001).

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. Island’s Choice, Inc. v. American Samoa Gov't, 5 A.S.R.3d 3 (App. Div. 2001).

§ 5(5) —Limitations on Review

Judicial review of administrative action is limited by the requirement that there be an actual, live controversy to adjudicate. Island’s Choice, Inc. v. American Samoa Gov't, 5 A.S.R.3d 3 (App. Div. 2001).

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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

ADMIRALTY

§ 1 Jurisdiction and Procedure

2 In Personam and In Rem Actions

3 Preferred Ship Mortgages & Maritime Liens

4 Maritime Contracts

4(1) —General Provisions

4(2) —Leases

4(3) —Employment Contracts

4(4) —Carriage of Goods by Sea

5 Maritime Torts

5(1) —General Principles

5(2) —Negligence

5(3) —Unseaworthiness

5(4) —Maintenance & Cure

5(5) —Limits on Liability

5(6) —Damages

5(7) —Compensation & Recovery

§ 1 Jurisdiction and Procedure

SEE CIVIL PROCEDURE § 1(6) – ADMIRALTY

Congress can vest admiralty jurisdiction in courts created by territorial legislature. Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983.

Adoption of Federal Admiralty Rules which allow in rem jurisdiction does not extend jurisdiction of High Court absent legislative of constitutional grant of such jurisdiction. 11 A.S.C. § 801. Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983.

Unless conferred by Constitution of American Samoa, admiralty jurisdiction in rem must be conferred on Trial Division by territorial legislature. Rev. Const. Am. Samoa, art. II, § 1; 5 A.S.C. §§ 1, 402, 801, 803; 11 A.S.C. § 2001. Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983.

High Court could have in rem admiralty jurisdiction, if Fono, subject to veto by Secretary of Interior, as sub-sub-sub delegatee of Congressional power, chose to enact statutory authorization therefor. Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983.

Statute authorizing High Court to issue all writs not inconsistent with law does not extend its jurisdiction to in rem admiralty proceedings. 5 A.S.C. § 403. Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983.

High Court may exercise in personam jurisdiction over admiralty cases pursuant to legislative grant, and may, if due process allows, attach or execute upon vessel, as in any other case. 5 A.S.C. § 3; 11 A.S.C. §§ 6201–6220. Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983.

Single ship refloating transaction does not constitute doing business within meaning of statute requiring permit. Am. Samoa Gov’t v. Salvage Pacific, 1 A.S.R.2d 98 (Trial Div. 1983).

High Court of American Samoa has jurisdiction over in rem admiralty proceedings so long as American Samoa remains without the jurisdiction of a United States District Court; Court has corresponding discretion to transfer and receive causes to and from other courts of the United States the same as any federal court where to do so would join a timely complaint and a perfected service of process. Great American Ins. Co. v. Pacific Princess, 1 A.S.R.2d 64 (Trial Div. 1982).

Because the courts of American Samoa are not U.S. District Courts, they do not have the power implied by 46 U.S.C. § 185 to enjoin “all other claims and proceedings” against the owner of a ship. In re M/V Pearl, 2 A.S.R.2d 76 (App. Div. 1986).

Neither A.S.C.A. § 3.0208(a)(3) nor procedural rules can confer jurisdiction on the High Court to the full extent given a U.S. district court by 46 U.S.C. § 185. In re M/V Pearl, 2 A.S.R.2d 76 (App. Div. 1986).

When the Fono enacted A.S.C.A. §3.0208(a)(3) conferring admiralty jurisdiction on the High Court, it included within that jurisdiction the substantive principle of admiralty law limiting a ship owner’s liability to its interest in the vessel and its freight. In re M/V Pearl, 2 A.S.R.2d 76 (App. Div. 1986).

Neither the Fono nor the High Court can extend the jurisdiction of the High Court to encompass proceedings in other jurisdictions. In re M/V Pearl, 2 A.S.R.2d 76 (App. Div. 1986).

High Court of American Samoa is not a "district Court of the United States" within meaning of provision of the Ship Mortgage Act granting exclusive jurisdiction to preferred ship mortgages. 46 U.S.C. § 951. Star-Kist Samoa, Inc. v. The Conquest, 3 A.S.R.2d 25.

The High Court of American Samoa has in rem admiralty jurisdiction. A.S.C.A. § 3.0208(a)(3). Rainwater v. The Sea Encounter, 3 A.S.R.2d 87.

The High Court of American Samoa is not a court "of the states" within the meaning of the federal statute denying admiralty jurisdiction to state courts. 28 U.S.C. § 1333. Rainwater v. The Sea Encounter, 3 A.S.R.2d 87.

High Court, neither an article III district court nor a non-article III district court empowered under the "territorial exception," has no jurisdiction to foreclose mortgage under federal ship mortgage act, enforcement of which is permissible only by "district courts of the United States." 46 U.S.C. §§ 911-84. Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

Local statute granting admiralty jurisdiction to High Court allows Court to apply substantive principles of the maritime common law, even though Congress has never directly and specifically conferred admiralty jurisdiction upon High Court. A.S.C.A. § 3.0208(a)(3). Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

While High Court has no jurisdiction to foreclose mortgage under federal ship mortgage act, it had subject matter jurisdiction over mortgaged vessel situated in the territory and could determine validity of purported mortgage, and therefore properly placed the vessel in custodia legis upon default by mortgagor, thereby nullifying subsequent attempt by mortgagor to create second preferred ship mortgage. Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

High Court, neither an article III district court nor a non-article III district court empowered under the "territorial exception," has no jurisdiction to foreclose mortgage under federal ship mortgage act, enforcement of which is permissible only by "district courts of the United States." 46 U.S.C. §§ 911-84. Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

Admiralty jurisdiction only exists over torts occurring in navigable waters and having a sufficient "martime flavor," which is determined by reference to the parties, the sorts of vessels or other objects involved, the nature and cause of the injury, and the implications for traditional concepts of admiralty law. United Airlines Employee Credit Union v. M/V Sans End, 15 A.S.R.2d 95.

American Samoa's "coastal zone management area" is defined as including the entire island of Tutuila, along with all the other islands and all coastal waters and submerged lands for a distance of three nautical miles seaward. A.S.A.C. § 26.0207. Solomona v. Governor of American Samoa, 17 A.S.R.2d 186.

The High Court of American Samoa has no authority, statutory or otherwise, to order a stay of admiralty proceedings in a federal district court. Fa'atasiga v. M/V Ocean Pearl, 19 A.S.R.2d 59.

The High Court's general admiralty jurisdiction includes limiting a shipowner's liability to the value of the ship, although lacking the statutory power of federal district courts to enforce this principle by injunction, pending the outcome of the limitation proceeding. Fa'atasiga v. M/V Ocean Pearl, 19 A.S.R.2d 59.

The High Court refused to approve parties' stipulation to lift a stay of an action in federal district court when no such stay was issued because of the lack of statutory authority to do so. Fa'atasiga v. M/V Ocean Pearl, 19 A.S.R.2d 59.

The High Court cannot enjoin proceedings in other jurisdictions in a limitation-of-liability proceeding, because the federal statute restricts jurisdiction to federal district courts and because neither the territorial legislature nor the court's rules can extend the court's jurisdiction to encompass proceedings in other jurisdictions. 46 U.S.C. §§ 145, 181 et seq.; T.C.R.C.P. Rule F(1). In re Complaint of Voyager, Inc., 23 A.S.R.2d 47.

The widely accepted rule of Restatement (Second) of Torts § 402A, which states that an action for recovery under a theory of strict products liability may be entertained by a court sitting in admiralty, is now accepted in American Samoa. Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

Under the dead-ship doctrine, a vessel which has been permanently removed from navigation (and so is a "dead" ship) does not attract liens of a maritime nature, and any watercrafts deemed to be “dead” are outside a court's admiralty jurisdiction. Southwest Marine of Samoa, Inc. v. M/V Kwang Myong #71, 24 A.S.R.2d 152.

No maritime lien need be present for admiralty jurisdiction to attach in an action for partition, to try title, for possession of cargo, or by part owners attempting to secure the return of their vessel. T.C.R.C.P. Supp. Rule D. Mobile Marine Limited v. Ninna Marianne, 27 A.S.R.2d 143.

The tort of conversion is a long-standing basis for admiralty jurisdiction. Mobile Marine Limited v. Ninna Marianne, 27 A.S.R.2d 143.

In addition to the power to exercise jurisdiction over the general maritime claims of unseaworthiness and maintenance and cure, the High Court of American Samoa can exercise jurisdiction over a plaintiff’s Jones Act claim. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

Absent statutory authorization, the prevailing party in an admiralty case is generally not entitled to an award of attorney’s fees. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

Absent statutory authorization, a prevailing party in an admiralty case is generally not entitled to an award of attorney fees. TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

Where Court had both common law general jurisdiction and admiralty jurisdiction, action in rem against defendant vessel to enforce personal judgment could proceed under Supplemental Rule B or C of the Trial Court Rules of Civil Procedure. Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Where Court had jurisdiction to proceed under Supplemental Rule B or C for Admiralty and Maritime Claims, Court’s discretion to proceed under Rule B did not defeat proper seizure of vessel and did not reflect judicial determination as to Rule C in rem claim or existence of maritime lien. Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

The Fono, in explicitly overruling Swift v. Trial Div., 4 A.S.R. 983 (App. Div. 1975), amended the High Court’s jurisdictional reach to include in rem admiralty and maritime suits. Alves v. M/V Koorale, 7 A.S.R.3d 139 (Trial Div. 2003).

Congress, either deliberately or through benign neglect, has excluded American Samoa from participating equally and fully in the federal scheme of admiralty and maritime jurisdiction. Alves v. M/V Koorale, 7 A.S.R.3d 139 (Trial Div. 2003).

As a result of Congress’s exclusion of American Samoa from full participation in the federal scheme for admiralty and maritime jurisdiction, owners of vessels entering Pago Pago harbor have fewer substantive rights than in any other American harbor, and perhaps fewer rights than afforded by Commonwealths having free association compacts with the United States. Alves v. M/V Koorale, 7 A.S.R.3d 139 (Trial Div. 2003).

The Constitution of the United States explicitly grants the federal judiciary the power over all cases of admiralty and maritime jurisdiction. Alves v. M/V Koorale, 7 A.S.R.3d 139 (Trial Div. 2003).

The High Court cannot issue an injunction pursuant to 46 U.S.C. § 185 and halt proceedings in a federal district court of competent jurisdiction, even though it would promote judicial economy and overall convenience. Alves v. M/V Koorale, 7 A.S.R.3d 139 (Trial Div. 2003).

The High Court cannot transfer civil actions to other district courts under 28 U.S.C. § 1404(a), despite the statute’s explicit language that transfers are “for the convenience of parties and witnesses, [and] in the interest of justice.” Alves v. M/V Koorale, 7 A.S.R.3d 139 (Trial Div. 2003).

The procedures governing the arrest of a vessel are more relaxed than the procedural due process requirements normally required with other pre-judgment seizures of property, including effective notice, meaningful judicial review, and a right to a prompt hearing after the seizure. Alves v. M/V Koorale, 7 A.S.R.3d 139 (Trial Div. 2003).

§ 2 In Personam and In Rem Actions

SEE CIVIL PROCEDURE § 1 – JURISDICTION

While in rem and in personam claims may be joined, res judicata applies from an in personam action against a shipowner to an in rem action against his ship (and vice versa); thus, one may not sue twice on the legal fiction that a ship and her owner are two different parties. Southwest Marine of Samoa, Inc. v. M/V Kwang Myong #71, 23 A.S.R.2d 156.

A Jones Act claim cannot be maintained in rem. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

Attorney's fees, in certain limited circumstances, may be awarded as an item of damages in an in rem action, but they are not properly included as custodia legis expenses. Sembawang Maritime Ltd. v. F/V Don Juan, 31 A.S.R.2d 193.

Where Court had both common law general jurisdiction and admiralty jurisdiction, action in rem against defendant vessel to enforce personal judgment could proceed under Supplemental Rule B or C of the Trial Court Rules of Civil Procedure. Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Where Court had jurisdiction to proceed under Supplemental Rule B or C for Admiralty and Maritime Claims, Court’s discretion to proceed under Rule B did not defeat proper seizure of vessel and did not reflect judicial determination as to Rule C in rem claim or existence of maritime lien. Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Although no affidavit accompanied complaint, as is required for a Rule B attachment, vessel was properly seized pursuant to a Rule C claim in rem and, therefore, was properly before Court for Rule B attachment purposes as well. Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Where party filed objection to Court’s in rem jurisdiction, the Court would not view the objection as equivalent to an answer. To do so would violate Rule C(6) of the T.C.R.C.P. Supplemental Admiralty and Maritime Claims, its meaning and purpose. Eurocompany S.P.A. v. Yurgrettansflot, 7 A.S.R.3d 76 (Trial Div. 2003).

In an in rem action, party’s motion to intervene is unnecessary where party has asserted ownership of the property at issue and the court has accepted the party’s ownership claim. Alves v. M/V Koorale, 7 A.S.R.3d 80 (Trial Div. 2003).

While some courts allow the vessel itself to bring a counterclaim in an in rem action, American Samoa courts follow the approach permitting a claimant acting on behalf of the ship to counterclaim. Alves v. M/V Koorale, 7 A.S.R.3d 80 (Trial Div. 2003).

The Fono, in explicitly overruling Swift v. Trial Div., 4 A.S.R. 983 (App. Div. 1975), amended the High Court’s jurisdictional reach to include in rem admiralty and maritime suits. Alves v. M/V Koorale, 7 A.S.R.3d 139 (Trial Div. 2003).

§ 3 Preferred Ship Mortgages & Maritime Liens

SEE SECURED TRANSACTIONS § 11 – MORTGAGES

Since there is no United States district court in Samoa this court may foreclose a preferred ship mortgage under 46 U.S.C. § 951. Security Pacific National Bank v. M/V Conquest, 2 A.S.R.2d 40 (Trial Div. 1985).

Unification of common law and admiralty procedure was a factor court should consider in determining whether to apply prior rule that maritime liens could only be foreclosed in admiralty and ship mortgages could only be foreclosed in courts of common law or equity. Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 59.

Although Ship Mortgage Act was inapplicable in High Court of American Samoa, its provisions could be applied by analogy by court in applying general law of admiralty. 46 U.S.C. §§ 911 et seq. Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 59.

Under the general law of admiralty applicable in American Samoa, a ship mortgage, which complied with statutory requirements of a Preferred Ship Mortgage, created a maritime lien enforceable in admiralty, and its priority was the same as it would have been if foreclosed in federal district court. Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 59.

To allow lienholder to obtain higher priority by foreclosing in jurisdiction that does not have a federal district court, where Congress apparently intended to create uniform set of priorities and parties contracted accordingly, would give rise to unjust enrichment. Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 59.

One who furnishes goods or services to a vessel in custodia legis does not acquire a maritime lien against the vessel for the value of such goods or services. Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

Rule precluding creation of a maritime lien against a vessel in custodia legis does not apply to a vessel purportedly in judicial custody but neither actually nor constructively taken into marshal's possession. Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

Courts sitting in admiralty must show special care for rights of seamen. Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

Judicial seizure of a vessel legally terminates voyage and discharges crew, thus precluding lien for wages for services rendered after seizure. Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

Where vessel undertook a single fishing voyage after seizure and under limited conditions approved by the court, and where vessel was already under arrest when crew was hired, vessel remained in custodia legis during voyage and crew members had no maritime lien for wages earned during the voyage. Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

Although no lien can attach to a vessel already in judicial custody, costs of services or property furnished by court authority to preserve and maintain the vessel for the common benefit of interested parties are "expenses of justice," payable before all preexisting liens. Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

Rule that liens do not accrue on behalf of those supplying goods and services to vessel in custodia legis may not apply to a vessel allowed to ply the harbors in furtherance of its trade without restriction. S.W. California Production Credit Association v. The Vessel Conquistador (Mem.), 11 A.S.R.2d 7.

Stipulated receivership order stating that vessel should be "deemed" in custodia legis, but purporting not to create any ranking or priority of liens other than that which would otherwise exist, would arguably preserve the rights of those who, in the absence of the order, would have obtained liens on the vessel during period of receivership. S.W. California Production Credit Association v. The Vessel Conquistador (Mem.), 11 A.S.R.2d 7.

It is not clear that court has the power to alter the rank or priority of liens by approving an ex parte stipulation to which the lienholders were not parties. S.W. California Production Credit Association v. The Vessel Conquistador (Mem.), 11 A.S.R.2d 7.

When a vessel is actually or constructively in the possession of the Court, liens do not ordinarily accrue in favor of crewmen or other suppliers of goods and services to the vessel. S.W. California Production Credit Association v. The Vessel Conquistador (Mem.), 11 A.S.R.2d 7.

For the purpose of foreclosing a ship's preferred mortgage lien, the High Court is considered a "district court" and thus has jurisdiction to enforce such a lien. 46 U.S.C. §§ 31301(2)(E), 31325-26. United Airlines Employee Credit Union v. M/V Sans End, 15 A.S.R.2d 95.

Upon judicial sale in a civil action in rem brought to enforce a preferred mortgage lien, the preferred mortgage lien has priority over all claims against the proceeds, except for (1) expenses and fees allowed by the court, (2) costs imposed by the court, and (3) preferred maritime liens, which include those for damages arising out of maritime tort. 46 U.S.C. §§ 31325, 31301(5)(B). United Airlines Employee Credit Union v. M/V Sans End, 15 A.S.R.2d 95.

Claims for costs incurred in securing vessel while it was in custodia legis prior to judicial sale are recoverable from the proceeds of the sale and have priority over the claims of the litigants. 46 U.S.C. § 31326. United Airlines Employee Credit Union v. M/V Sans End, 15 A.S.R.2d 95.

Wharfage charges can give rise to a maritime lien, though a lien does not arise against a vessel "withdrawn from navigation," which includes an abandoned vessel. Southwest Marine of Samoa, Inc. v. M/V Kwang Myong #71, 23 A.S.R.2d 156.

Appropriate reasons to arrest a vessel include guaranteeing safe return of the vessel to the chosen forum and preventing defendants from retaining the proceeds earned by the sale of the cargo. T.C.R.C.P. Supp. Rule D. Mobile Marine Ltd. v. Ninna Marianne, 28 A.S.R.2d 1.

Security for a vessel may be effectuated by a bond provided by the party designated to possess the vessel after its release, to be held by the court. T.C.R.C.P. Supp. Rule E(5)(a). Mobile Marine Ltd. v. Ninna Marianne, 28 A.S.R.2d 1.

A maritime bond cannot exceed the total value of the vessel. T.C.R.C.P. Supp. Rule E(5)(a). Mobile Marine Ltd. v. Ninna Marianne, 28 A.S.R.2d 88.

When a vessel is seized and sold, the costs of holding the vessel in custodia legis are generally given priority over other claims. Pacific N. Marine Fuels, Inc. v. M/V Clover #7, 30 A.S.R.2d 152.

Claims incurred while the vessel is in custodia legis must be proven and supported just as any other claim. Not only must the claims be equitable and reasonable, they must inure to the benefit of all claimants. Pacific N. Marine Fuels, Inc. v. M/V Clover #7, 30 A.S.R.2d 152.

The forfeiture provision of A.S.C.A. § 28.1510 creates a defense for debtors in civil court, not third parties not in privity with the creditor. Pacific N. Marine Fuels, Inc. v. M/V Clover #7, 30 A.S.R.2d 152.

A person furnishing goods or services to a vessel after its arrest (in custodia legis) does not acquire a maritime lien against the vessel for the value of those goods or services. Pacific N. Marine Fuels, Inc. v. M/V Clover #7, 30 A.S.R.2d 152.

Administrative expenses are recoverable when the expenditures inure to the benefit of all claimants, where they contribute to or create an available fund. Pacific N. Marine Fuels, Inc. v. M/V Clover #7, 30 A.S.R.2d 152.

Claims for costs incurred in securing a vessel while it is in custodia legis prior to judicial sale are recoverable from the proceeds of the sale and have priority over the litigants' claims. The principal qualification is that the services or goods for which payment or reimbursement is sought must be necessary for the care and preservation of the vessel and be for the common benefit of all parties who have a claim to the vessel. Sembawang Maritime Ltd. v. F/V Don Juan, 31 A.S.R.2d 193.

Seamen’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, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

Party was not an “innocent lienholder” and should have known the applicable law even if industry practice was contrary to the law. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

§ 4 Maritime Contracts

SEE CONTRACTS

§ 4(1) —General Provisions

RESERVED

§ 4(2) —Leases

No writing is necessary to establish valid contract for lease of vessel. Steffany v. Scanlan, 3 A.S.R. 456.

Lessors recognize lease as valid by delivering ship to possession of lessees. Steffany v. Scanlan, 3 A.S.R. 456.

Lessees recognize lease as valid by accepting possession, and such delivery waives alleged condition precedent to execution of lease. Steffany v. Scanlan, 3 A.S.R. 456.

Agreement by lessee to indemnify owner of ship for loss of ship in consideration of owner’s withdrawing petition for injunction was supplementary agreement to original lease and not new lease. Steffany v. Scanlan, 3 A.S.R. 456.

Change in lease agreement which would require lessee to procure insurance for leased vessel is modification of original terms and, if without consideration, is invalid, and failure of lessee to procure insurance, even though marine insurance is available, is not breach of contract. Steffany v. Scanlan, 3 A.S.R. 456.

Repudiation of a contract must be unequivocal and absolute, and petition for injunction by lessor to prevent ship from going out to sea before insurance is procured is not such repudiation. Steffany v. Scanlan, 3 A.S.R. 456.

Lessor is under no obligation to accept surrender of lease from lessee, and where lessor refuses to take back leased ship, lessee is still obligated under lease. Steffany v. Scanlan, 3 A.S.R. 456.

Lessors suing for back rent are not entitled to recover for rent accruing after date petition was filed. Steffany v. Scanlan, 3 A.S.R. 456.

Finding of trial court that signature of one of owners of vessel on lease agreement was not necessary to valid lease was not in error. Scanlan v. Steffany, 3 A.S.R. 583.

Evidence supports conclusion that parties did not intend signature of one of owners to be condition precedent to execution of valid lease. Scanlan v. Steffany, 3 A.S.R. 583.

Change of possession of ship is equivalent of delivery, executing lease agreement. Scanlan v. Steffany, 3 A.S.R. 583.

Where lessor acquiesces in lessee’s possession of ship for period of months, he waives possible condition precedent in lease, which was not complied with. Scanlan v. Steffany, 3 A.S.R. 583.

Agreement by lessee to indemnify lessor for loss of ship in consideration for lessor’s withdrawal of repudiation does not constitute new lease since it does not contain all terms necessary to lease but is supplementary agreement. Scanlan v. Steffany, 3 A.S.R. 583.

Modification of lease to strike condition that insurance should be acquired for vessel by lessees only if available in American Samoa was invalid since there was no consideration for such modification. Scanlan v. Steffany, 3 A.S.R. 583.

Where lessor brings an injunction suit to regain possession of ship, and then withdraws suit in consideration for lessee’s promise of indemnification if ship should be lost, this is not repudiation of lease agreement where lessee does not treat it as such and continues to possess ship. Scanlan v. Steffany, 3 A.S.R. 583.

Attempted surrender of lease does not release lessee from obligations unless it is accepted by the lessor. Scanlan v. Steffany, 3 A.S.R. 583.

Circumstantial evidence concerning failure of lessee’s business may be weighed by court in considering validity of attempted surrender lease. Scanlan v. Steffany, 3 A.S.R. 583.

Law providing that lease of land in writing constitutes tenancy at will is not applicable to ships nor interest therein. Scanlan v. Steffany, 3 A.S.R. 583.

§ 4(3) —Employment Contracts

Outfitting of vessel for profit-making voyage that was undertaken after seizure of vessel and that would not recognizably enhance its value was not "expense of justice," and crewmembers had no prior claim for wages earned during voyage. Gray, Cary, Ames & Frye v. HGN Corp., 6 A.S.R.2d 64.

The terms of a seaman's contract were adjudicated as being those contained in his payroll form when the contract reflected the parties' negotiations by telephone and when the claimed parol variation would be essentially gratuitous on the captain's part. Zuguin v. M/V Captain M.J. Souza, 23 A.S.R.2d 7.

When a seaman had worked to prepare a vessel for an upcoming voyage before leaving the vessel, he was entitled to compensation on a quantum meruit basis. Zuguin v. M/V Captain M.J. Souza, 23 A.S.R.2d 7.

U.S. law requires that, in certain circumstances, seamen be given written fishing agreements, specifying the period of the agreement, the amount of their compensation, and any other agreed upon terms. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

A seaman retained in violation of the law requiring a written fishing agreement is entitled to compensation for services rendered at the agreed upon rate, or the highest rate of wages at the port in which he was engaged, whichever is higher. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

Even where a written fishing agreement does not exist, the Seaman Protection and Relief Act does not enable a seaman to accept 95% of his agreed upon wages and then, years later, seek to retroactively void his unwritten agreement and claim significantly higher statutory wages. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

The “highest rate of wages” language contained in § 11107 of the Seaman Protection and Relief Act entitles an aggrieved seaman to the highest rate of wages paid a comparable seaman, not any seaman. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

All deckhands are not per se comparable, however, a seaman only need make a prima facie showing of comparability in order to make out a § 11107 claim. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

Where other vessels in same fleet functioned essentially the same, where all vessels in fleet maintained contact with each other and functioned as a group, where crewmembers often serve on different vessels throughout fleet, and where authority of fish captain was consistent throughout fleet it was appropriate to compare wages of crewmembers throughout fleet for purposes of damages under the Seaman Protection and Relief Act. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

A ship’s master, or anyone possessing the ship’s master’s responsibilities, may not recover penalty wages under 46 U.S.C. § 11107 because such individual is charged with the responsibility of securing written fishing agreements with the seamen. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

Although case involved many fishermen who had been originally “engaged” to fish in Croatia, they were subsequently hired on a trip-to-trip basis, originating and concluding in the western Pacific, and had been promised wages consistent with those of the western Pacific tuna fishing industry. Their recovery was therefore not limited to the wages of the highest paid comparable seaman engaged in Croatia, but could be based on wages made by other seaman in same fleet. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

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. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

It is a common understanding in the fishing industry that a fishing trip is only completed when the catch has been off-loaded to the cannery and the vessel has been cleaned. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

The fundamental purpose of Seaman Protection and Relief Act is not to penalize, but rather to compensate seamen for their wages when a company fails to provide its crew with written fishing agreements. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 163 (Trial Div. 1999).

As a general principle of maritime law, a seaman who falls ill or is injured during a voyage is entitled to maintenance, cure, and wages for the remainder of the voyage. TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

Under 46 U.S.C. § 11107, when read in light of the larger statutory scheme, the Seamen Protection and Relief Act, and together with 46 U.S.C. § 10601, ships’ masters are not entitled to statutory wages. TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

Under 46 U.S.C. § 10601 and § 11107, a seaman’s statutory wage claim gives rise to a maritime lien having priority over a preferred ship mortgage lien. TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 225 (Trial Div. 2000).

The purpose of the portion of statutory wages awarded under 46 U.S.C. § 11107 that is more than what the seaman would have received had his fishing agreement been valid is designed to punish ship owners who illegally engage seamen. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

Historically, the purpose of the requirement of a written shipping articles agreement under 46 U.S.C. § 11107 was to protect seamen from exploitation and mistreatment, while its modern purpose is to avoid disputes about wages and other terms and conditions of employment. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

Statutory wages awarded under 46 U.S.C. § 11107 are not punitive damages since the statute merely substitutes for an oral fishing agreement and calls for the rate of wages that are to be paid. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

Statutory wages awarded under 46 U.S.C. § 11107 give rise to preferred maritime liens that are recoverable in rem and are granted the highest priority after in custodia legis costs. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

In contrast to 46 U.S.C. § 10313(g), 46 U.S.C. § 11107 has no language limiting recovery of penalty wages only as against the vessel’s master or owner and therefore permits recovery in rem against the sale proceeds of a fishing vessel. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

Operation of 46 U.S.C. § 11107 is automatic, rendering oral agreements between a crew and the employer void and awarding statutory wages, regardless of whether the employer made partial payment of wages on the agreements’ terms. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

A wronged seaman is entitled to recover the higher of either the wages he orally agreed to, or the higher rate of wages that could be earned by a seaman at the port of hire who has the same rating (rank, job classification, duties and ability) as the complainant. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

A court examines the totality of the circumstances in determining whether a seaman has demonstrated that he or she is comparable to another seaman for purposes of 46 U.S.C. § 11107. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

The trial court’s finding that crew members, other than ordinary deckhands, were “interchangeable” with crew members of other ships and fleets without reference to their rank, job classification, duties and abilities was clearly erroneous in light of the crew’s burden of proving its case by a preponderance of the evidence and the lack of facts that would support such a finding. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

§ 4(4) —Carriage of Goods by Sea

Under the Carriage of Goods by Sea Act, a carrier has an affirmative duty to properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried. Salofa v. South Seas Steamship, Inc., 3 A.S.R.3d 130 (Trial Div. 1999).

The plaintiff bears the initial burden of establishing a prima facie case for breach, and does so by establishing that the goods were damaged while in the carrier’s custody or by establishing that the goods were delivered to the carrier in good condition but were found to be damaged upon receipt. Salofa v. South Seas Steamship, Inc., 3 A.S.R.3d 130 (Trial Div. 1999).

Under the Carriage of Goods by Sea Act, a carrier’s liability is limited to $500 per item, unless the shipper chooses to declare a higher value. Salofa v. South Seas Steamship, Inc., 3 A.S.R.3d 130 (Trial Div. 1999).

The carrier bears the initial burden of offering prima facie evidence of adequate notice of the limit of liability, which is satisfied by showing that the bill of lading advised the shipper of the liability limitation and of the options for increasing that amount, and including such language in the bill of lading puts the shipper on constructive notice of the liability limitation; actual notice is not required. Salofa v. South Seas Steamship, Inc., 3 A.S.R.3d 130 (Trial Div. 1999).

Although a shipper is unaware of the bill of lading and so does not have even constructive notice of his options for coverage, he is nevertheless bound by its terms where he has instructed a car dealership to deliver a car on his behalf. That authorization creates a legal agency relationship between the shipper and the dealership, and the latter, authorized to deliver goods of another to a common carrier for transportation, may be treated as having authority to stipulate for and accept the terms of the contract of carriage, and the owner will be presumed to have full knowledge of the contract and will accordingly be bound by its terms. Salofa v. South Seas Steamship, Inc., 3 A.S.R.3d 130 (Trial Div. 1999).

In the ordinary course of events it is not necessary for the shipper to sign a bill of lading, and he may be bound by its terms and conditions even though he has not signed it. Salofa v. South Seas Steamship, Inc., 3 A.S.R.3d 130 (Trial Div. 1999).

Where the plaintiff offers evidence giving some credence to his claim of damages, the claim is not frivolous, and an award of attorney’s fees to the defendant would not be appropriate. Salofa v. South Seas Steamship, Inc., 3 A.S.R.3d 130 (Trial Div. 1999).

§ 4(5) —Remedies & Damages

Punitive damages cannot be recovered against a vessel. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

Statutory wages awarded under 46 U.S.C. § 11107 are not punitive damages since the statute merely substitutes for an oral fishing agreement and calls for the rate of wages that are to be paid. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

The doctrine of quantum meruit awards a plaintiff an amount equal to the value of the benefit he has provided to protect against the unjust enrichment of the beneficiary. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

Under quantum meruit, crew entitled to the value of the benefit they conferred upon their vessel and its owners where crew was instrumental in keeping the vessel in working order even though the imminent voyage never materialized because the vessel maintained a higher price upon judicial sale than would have been realized if the vessel were run-down. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

Calculation of crew’s recovery in quantum meruit for maintaining a vessel before a voyage that never occurs is the actual value of the benefit conferred, not the hypothetical benefit that might have accrued had the ship taken the voyage. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

American Samoa law allows in rem recovery against a vessel of a quantum meruit award. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

§ 5 Maritime Torts

SEE TORTS

§ 5(1) —General Principles

A structure may be a vessel or other appropriate maritime object for the purpose of some admiralty rules but not for others. In re M/V Tradition, 6 A.S.R.2d 99.

In admiralty, the defendant has the burden of proving the degree of fault of settling third-parties not present before the court; once the exact percentages of fault are established, liability and assessed damages are calculated on a pro rata basis. Interocean Ships, Inc. v. Samoan Gases, 24 A.S.R.2d 108.

The equitable alter ego doctrine is applicable in admiralty but will only disregard a corporate entity upon a proper factual showing. Interocean Ships, Inc. v. Samoan Gases, 24 A.S.R.2d 145.

In the absence of any even minimally probative evidence tending to show that a defendant bore some quantifiable measure of responsibility, the court will decline to arbitrarily guess what that percentage may be. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

§ 5(2) —Negligence

Having been made applicable by statute to actions for personal injury or property damage and so being compatible with the legislature's will, comparative negligence is properly incorporated into admiralty. Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

Rejecting "expert user," assumption of risk, and contributory negligence defenses as barring recovery, American Samoa adopts the comparative-negligence approach in admiralty. Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

In determining proximate cause for tort cases in admiralty, American Samoa adopts the approach of weighing all of plaintiff's conduct, defendant's liability, and all other factors causing the loss or injury. Interocean Ships, Inc. v. Samoa Gases, 23 A.S.R.2d 76.

In admiralty it is well settled that fishing vessel owners and commercial fishermen may recover for lost fishing profits under the general maritime law of negligence. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

Where a plaintiff pleads both Jones Act negligence and unseaworthiness, a showing of negligence also establishes unseaworthiness. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

There are two elements which a plaintiff must prove in a Jones Act negligence claim: (1) that there was a negligent act by the defendant, and (2) that there is a but-for causal connection between the act and the injury. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The Jones Act is to be liberally construed in favor of plaintiffs. The "slight negligence" necessary to support an action under FELA or the Jones Act is defined as a failure to exercise great care, and that burden of proof is much less than the burden required to sustain recovery in ordinary negligence actions. Evidence of even slight negligence is sufficient to find liability under the Jones Act. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The plaintiff’s burden to prove the but-for causation element of a Jones Act negligence claim is minimal. If the employer's negligent act or omission played any part, however slight, in bringing about the injury, the employer is liable. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

A plaintiff, injured from disentangling a net from a vessel’s propeller, establishes but-for causation, in that but-for the negligent entanglement of the net in the vessel's propeller, and the plaintiff’s cutting of the net away, the plaintiff would not have received his injuries. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The assumption of risk defense is not a defense to either an unseaworthiness claim or a Jones Act claim. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The doctrine that a defendant takes the plaintiff as he finds him applies to Jones Act claims. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

A claim of unseaworthiness lies against a vessel's owner. A Jones Act negligence claim, on the other hand, lies against a seaman's employer. A seaman’s employer is vicariously liable for the negligence of the vessel's captain and any other employee. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

A Jones Act claim cannot be maintained in rem. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

Pre-judgment interest is not allowed on either Jones Act or unseaworthiness claims. However, post-judgment interest under the Jones Act is allowed from the date of a court's final decree. Interest may also be awarded in general maritime cases at the court's discretion. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

When a moving vessel strikes an anchored vessel, a presumption of negligence on the part of the moving vessel arises. This presumption is even stronger where the moving vessel lurches onto the shore and strikes a dry-docked vessel. Rizzo v. M/V Fotu O Samoa, 30 A.S.R.2d 131.

Persons engaged in the business of navigation are bound to see that the vessel is seaworthy, well manned, and equipped for the business in which it is engaged, and whenever a collision ensues from the defective condition or unfitness of the colliding vessel for the voyage, the vessel and the owner are liable. Rizzo v. M/V Fotu O Samoa, 30 A.S.R.2d 131.

Where a company is aware that fraying is going to occur in a vessel’s throttle cables, resulting in navigational difficulties and possible collisions, the failure to take steps to prevent such an occurrence may be grossly negligent, reckless or willful. However, in order to so find, the court requires evidence of the standard of care in the industry, the number of accidents that occur in the same type of situation, the cost of replacement of faulty parts, etc. Rizzo v. M/V Fotu O Samoa, 30 A.S.R.2d 131.

The duty of care that employers owe to seamen under the Jones Act is identical to the duty of care that employers owe to employees under the Federal Employer's Liability Act ("FELA"), 45 U.S.C. Sections 51 et seq. The duty of care employers owe under the FELA is not merely a duty to exercise reasonable care, as in the typical negligence suit, but is rather a duty to exercise “great care”. Clifton v. Voyager, 31 A.S.R.2d 12.

Determinations of negligence in admiralty cases are findings of fact which will be given application unless clearly erroneous. In general, fact finding does not require mathematical certainty. Factfinders, whether jurors or judges are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn. Clifton v. Voyager, 31 A.S.R.2d 12.

Since the question of but-for causation under the Jones Act is a question of fact, a factfinder’s conclusions with respect to causation must stand unless clearly erroneous. Clifton v. Voyager, 31 A.S.R.2d 12.

The foreseeability question restricts the imposition of liability to cases in which the injuries to the plaintiff are the natural and reasonably predictable consequences of a negligent action, or in the case of an unseaworthiness claim, of a ship’s unseaworthiness. It is clearly foreseeable that a crewmember must repair a vessel when it is damaged to the point of being dead in the water. Volunteering to assist in such repairs is a normal response to the stimulus of a dangerous situation. Clifton v. Voyager, 31 A.S.R.2d 12.

The Jones Act provides a cause of action to seamen for personal injuries sustained in the course of their employment. Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

In order for an individual to be considered a “seaman” under the Jones Act, (1) the individual’s duties must contribute to the function of the vessel or the accomplishment of its mission; and (2) the individual must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in nature and duration. Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

All circumstances of an individual’s employment must be weighed to determine whether he/she has a sufficient relationship to the navigation of vessels and the perils attendant thereon. Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

Where vessel had remained in dry dock and tied up at port for at least three years, individuals who had repaired vessel in attempt to ready it for navigation were considered “land-based” employees, not seamen, and were not entitled to relief under the Jones Act. Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

Where port engineer had no authority to hire crewmembers, his statement that Plaintiffs were “crewmembers’ carried no weight in determining seaman status. Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

Where workers possessed expectations of becoming seamen in the future, such expectation was insufficient to raise workers to seamen status in present. Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

Requirement that employee’s work be done at sea is first basic principle of being a seaman. Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

The Jones Act provides a remedy for seaman injured in the course of their employment as a result of their employer’s negligence. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

The Jones Act made the Federal Employers’ Liability Act applicable to maritime law, thereby authorizing a right to recovery for seamen injured due to the negligence of their employer, its agents or employees. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Under the Jones Act standard of negligence, a shipowner has an obligation to his seamen that is substantially greater than the obligation of an ordinary employer to employees. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Under the Jones Act, a shipowner has an absolute, nondelegable duty to exercise reasonable care in furnishing his seamen a reasonably safe place to work, a seaworthy ship and safe equipment. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Under the Jones act, a shipowner-employer need not guarantee the safety of the vessel, but must take reasonable precautions to ensure it is safe. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

In order to prove negligence under the Jones Act, a plaintiff must prove actual or constructive knowledge, while the evidentiary showing necessary to establish unseaworthiness is predicated without regard to fault or the use of due care. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Under the Jones Act, there is an absolute, nondelegable duty of the shipowner to maintain a reasonably safe vessel, extending to equipment and appliances used on the vessel. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

A shipowner’s financial difficulties may provide an explanation, but do not establish a defense for a breach of the shipowner’s duty to maintain the ship and its equipment in reasonably safe and seaworthy condition. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

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. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

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. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

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 its duty of reasonable care. However, the failure to provide reasonable and procurable safety equipment, if such failure proximately causes the injury, is grounds for a finding of negligence. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

The standard of causation under the Jones Act is whether an employer’s negligence caused, in whole or in part, the seaman’s injury. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Liability under the Jones Act is found where the employer’s negligence played any part, even the slightest, in producing injury or death. This “slight” standard of causation is often called “featherweight.” TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

The right of a seaman to recover under the Jones Act, and his right to maintenance and cure under admiralty law, are independent and cumulative. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

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. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

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. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

§ 5(3) —Unseaworthiness

Under general maritime law, an owner or operator of a vessel has an absolute duty to ensure that the vessel is seaworthy. This is a no-fault duty, and no showing of negligence or knowledge is required. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

A seaworthy vessel is one that is reasonably fit and suitable for its intended use. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

To prevail on a claim for unseaworthiness, a plaintiff must show both unseaworthiness and proximate causation. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The condition of seaworthiness is a relative one. A ship can be unseaworthy as to only one seaman. A condition of unseaworthiness can arise once the ship has set out to sea or from a transitory condition. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The factfinder determines the question of seaworthiness. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

Where a plaintiff pleads both Jones Act negligence and unseaworthiness, a showing of negligence also establishes unseaworthiness. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The assumption of risk defense is not a defense to either an unseaworthiness claim or a Jones Act claim. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

A claim of unseaworthiness lies against a vessel's owner. A Jones Act negligence claim, on the other hand, lies against a seaman's employer. A seaman’s employer is vicariously liable for the negligence of the vessel's captain and any other employee. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

Pre-judgment interest is not allowed on either Jones Act or unseaworthiness claims. However, post-judgment interest under the Jones Act is allowed from the date of a court's final decree. Interest may also be awarded in general maritime cases at the court's discretion. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

In unseaworthiness cases, the plaintiff must not only establish cause in fact, but also proximate cause, i.e., that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness. The question of proximate cause examines whether a cause is so attenuated in time or space, or whether an act or actor has intervened in the causal chain, so as to relieve the defendant of liability. Clifton v. Voyager, 31 A.S.R.2d 12.

The foreseeability question restricts the imposition of liability to cases in which the injuries to the plaintiff are the natural and reasonably predictable consequences of a negligent action, or in the case of an unseaworthiness claim, of a ship’s unseaworthiness. It is clearly foreseeable that a crewmember must repair a vessel when it is damaged to the point of being dead in the water. Volunteering to assist in such repairs is a normal response to the stimulus of a dangerous situation. Clifton v. Voyager, 31 A.S.R.2d 12.

Under general maritime law, a shipowner is absolutely liable for injuries caused to a seaman if such were received as a result of the unseaworthiness of the ship or failure to supply and keep in order the appliances of the ship. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

The shipowner’s liability for personal injuries under the doctrine of unseaworthiness is strict, absolute, and without fault. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

A shipowner has the duty, owed to every seaman employed on board, to maintain a ship’s equipment in proper operating condition. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

The failure of a piece of vessel equipment under proper and expected use is sufficient to establish unseaworthiness. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

To prevail on a claim of unseaworthiness. a plaintiff must show both unseaworthiness and proximate causation. 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. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

§ 5(4) —Maintenance & Cure

The duty of the shipowner to provide for the ill or injured seaman can be traced as far back as the Sea Codes of the Middle Ages. This right, to recover maintenance and cure without regard to fault, is among the most pervasive incidents of the responsibility anciently imposed upon a shipowner. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

Under general maritime law, a shipowner has an obligation to care for a seaman injured during the course of maritime employment. The obligation includes payment for any injury or illness, which manifests itself during employment, regardless of the source of the injury or whether it preexisted the journey. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

To be eligible to claim maintenance and cure against a shipowner, a seaman must be "in the service of his ship" at the time of the injury. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

Under maintenance and cure a seaman is entitled to receive food and lodging of a kind and quality received aboard ship, as well as necessary medical services to the point of maximum cure. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The point of maximum cure is reached on the date that a seaman's physician determines that further treatment is unlikely to result in the betterment of the seaman's condition. This can include a determination that the incapacity is permanent. Doubts are to be resolved in the seaman's favor. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The court has discretion whether to award interest on unpaid maintenance and cure. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

In a normal case of unpaid maintenance and cure, pre-judgment interest is payable from the date the payment was initially due the plaintiff. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

Attorney's fees are allowed for a bad-faith refusal to pay maintenance and cure. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

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. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

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. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Maintenance and cure obligations arise when a seaman becomes disabled through no fault of his own while in service of the ship. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

The only requirement for eligibility under the theory of “maninenance and cure” is that the seaman be “in the service of his ship” at the time of the injury. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Some evidentiary proof must be offered regarding the seaman’s actual expenditures or actual liability incurred for maintenance and cure. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Under “maintenance and cure”, a vessel’s owner is obliged to pay the medical expenses of the seaman until he reaches maximum recovery or until the disease or illness he suffers from is recognized as incurable. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

A seaman’s recovery for medical expenses under “maintenance and cure” is limited to the amount actually expended or liability actually incurred. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Maximum cure is achieved when it is probable that further treatment will result in no betterment of the seaman’s condition. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

A shipowner’s failure to meet his maintenance and cure obligation may result in liability for consequential and incidental damages, including attorney’s fees, where the employer is “willful and persistent” in his refusal to pay maintenance and cure. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

A “maintenance and cure” claim may merit an award of punitive damages and attorney’s fees, where the shipowner: (1) is lax in investigating a claim; (2) terminates benefits in response to the seaman’s retention of counsel or refusal of a settlement offer; and (3) fails to reinstate benefits after diagnosis of an ailment previously not determined medically. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

§ 5(5) —Limits on Liability

The "flotilla rule" governing limitation of liability for accidents involving more than a single vessel states that in "pure tort" cases, in which the parties have no legal relationship to one another, the owner's liability cannot exceed the value of the "offending vessel," while in "consensual" cases, in which the injured party has a contractual relationship to the vessel owner, liability is limited to all commonly owned vessels engaged in the single contractual enterprise. In re M/V Tradition, 6 A.S.R.2d 99.

The "consensual" rule of limitation of maritime liability applies where the injured party is an employee of the vessel owner. In re M/V Tradition, 6 A.S.R.2d 99.

A skiff aboard a fishing boat is not itself a "vessel" for limitation of liability purposes, and an owner seeking to limit his liability for injuries occurring on a skiff lashed to its mother ship would have to tender the aggregate value of both the ship and the skiff. In re M/V Tradition, 6 A.S.R.2d 99.

To prove that an injury was proximately caused by the unseaworthy condition, 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. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

The right of a seaman to recover under the Jones Act, and his right to maintenance and cure under admiralty law, are independent and cumulative. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

§ 5(6) —Damages

Lost future wages, also called impaired earning capacity, are determined by considering what the plaintiff's income would probably have been, how long it would have lasted, and all the contingencies to which it was liable. To ascertain the amount of lost future wages to be awarded, the court must take four steps: (1) determine whether the worker’s earning capacity has been diminished; (2) determine the duration of the loss; (3) determine the value of the worker’s loss over this period; and (4) consider reducing the award to present value. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

A defendant has the burden of production and proof on the issue of reducing a plaintiff’s award for lost future wages, or impaired earning. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

Pre-judgment interest is not allowed on either Jones Act or unseaworthiness claims. However, post-judgment interest under the Jones Act is allowed from the date of a court's final decree. Interest may also be awarded in general maritime cases at the court's discretion. Clifton v. Voyager, Inc., 29 A.S.R.2d 80.

Damages in vessel collision cases are estimated in the same manner as in other suits of like nature for injuries to personal property. The award should include all losses proximately resulting from the collision, the general rule being that the owner of the vessel is to be placed in the same position he would have occupied had the disaster not occurred. Although the injured party may be entitled to full indemnity, the respondents are not, as a rule, liable for such damages as might have been reasonably avoided by the exercise of ordinary skill and diligence, after the collision on the part of those in charge of the injured ship. Rizzo v. M/V Fotu O Samoa, 30 A.S.R.2d 131.

Where repairs are practicable, the measure of damages is the cost of restoring the injured vessel to the condition in which it was at the time of the collision. Rizzo v. M/V Fotu O Samoa, 30 A.S.R.2d 131.

The court is not required to assess damages with mathematical precision, though it must strive to be as accurate as possible. Rizzo v. M/V Fotu O Samoa, 30 A.S.R.2d 131.

The court must sometimes make damage determinations in areas that require more than layman’s skill. In doing so, the court may make judgments on the veracity of experts’ statements, such as whether the expert inflated figures. Rizzo v. M/V Fotu O Samoa, 30 A.S.R.2d 131.

A threshold issue in determining damages is whether the injuries sustained by the seaman prevent the seaman from returning to a career in the fishing industry. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

A primary issue involved in computing the expected pay rate for lost earnings regards a seaman’s contention that, had he been able to remain in the fishing industry, he would have been elevated to the more profitable position on a vessel. This level of lost earnings will not be recoverable where that claim is entirely improbable. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

In rendering the true value of an award of damages, there exists a clear judicial policy based on fairness and practical logic, of taking present value and inflation into account. This may be done by judicial notice, considered adjudication, or later submission of evidence by the parties. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Under the Jones Act and the law of unseaworthiness, contributory negligence, however gross, does not bar recovery but only mitigates damages. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

§ 5(7) —Compensation & Recovery

Under the collateral source rule, which applies to torts in admiralty and virtually all other tort cases, 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.

A shipowner has a right of indemnity against a third party tortfeasor for maintenance and cure paid to an injured seaman to the extent occasioned by the third party tortfeasor's fault. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

Admiralty law recognizes that even where a party to a lawsuit settles, it may still bring an indemnity action against a joint tort feasor. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

Even when defendant rejects plaintiff's tender of defense of the personal injury and wrongful death claims, the failure to tender, alone, would not preclude an indemnity claim by plaintiff, if that claim still presented a valid theory of relief. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

The fact the crew themselves contributed to the injury does not preclude an indemnity claim, if they were liable as well. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

The general rule is against recovery of attorney's fees as such, by a party which incurs them in enforcing a claim against another. It is equally well settled, however, that the reasonable expenses incurred by an indemnitee in defending a claim against him may be recovered of his indemnitor--and that these expenses include attorney's fees. This exception applies equally to courts sitting in admiralty. However, the prevailing party in an admiralty case is generally not entitled to an award of attorney's fees, absent statutory authorization. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

In cases where contribution has been allowed for damages, both in admiralty and non-admiralty, courts have generally denied a right to contribution for attorney's fees and expenses incurred in defense of the action brought by the injured party. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

The general rule is to award prejudgment interest, although this award always lies soundly within the court's discretion. However, it is also true that when certain "peculiar" circumstances exist, the discretion to deny prejudgment interest is sustained. These peculiar circumstances have fallen into three categories: (1) "plaintiff's delay in bringing suit," (2) "the existence of a genuine dispute regarding ultimate liability or the complexity of the factual and legal issues to be resolved," and (3) "judgment in an amount substantially less than that claimed. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

The court has wide discretion in allowance of various cost awards in admiralty. Interocean Ships, Inc. v. Samoa Gases, 27 A.S.R.2d 5.

A trial court’s allocation of percentages of fault is a finding of fact and will not be disturbed unless clearly erroneous. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Under the primary duty rule, 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. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Where an employee consciously assumes a duty toward a wrongdoer as a term of employment, failure of this duty results in a bar to any recovery under the Jones Act. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

Application of the primary duty rule is limited by three principles: First the “primary duty” rule 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 rule 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 rule applies only to a knowing violation of a duty consciously assumed as a term of employment. TCW Special Credits, Inc. v. F/V Cassandra Z, 5 A.S.R.3d 104 (Trial Div. 2001).

AGENCY AND PRINCIPAL

§ 1 Agency Relationship

1(1) —General Principles

1(2) —Creation

1(3) —Existence

1(4) —Termination

2 Authority of Agent

2(1) —General Provisions

2(2) —Express Authority

2(3) —Implied Authority

2(4) —Apparent Authority

3 Rights, Duties, and Liabilities

3(1) —Between Principal and Agent

3(2) —Between Principal and Third Person

3(3) —Between Principal and Independent Contractor

3(4) —Between Agent and Third Person

4 Powers of Attorney

§ 1 Agency Relationship

§ 1(1) —General Principles

RESERVED

§ 1(2) —Creation

Oral agreement by person who negotiated on behalf of purchaser that negotiator would guarantee payment from purchaser created an agency or surety relationship between purchaser and negotiator, and vendor could look to third party for payment. Ryan, Inc., v. Vaka, 5 A.S.R.2d 31.

§ 1(3) —Existence

Court will not presume that agency exists from mere fact that person apparently is acting for another. Bank of American Samoa v. Brown, 2 A.S.R. 365.

Agency relationship exists between owner of vehicle and one who drives the vehicle in furtherance of the owner's interest or enterprise. Sataua v. Himphill, 5 A.S.R.2d 61.

Agency exists where a principal has the right to control the conduct of an agent, and the agent has power to affect the legal relations of the principal. On this basis, a seller named in an invoice is an agent for her or his principal. Joseph D. Seagram & Sons, Inc. v. Comm. Credit Corp. of American Samoa, 29 A.S.R.2d 121.

Whether a master/servant relationship has been established depends on a number of factors, the most important of which is the master's right to control the physical conduct of the servant. Poutoa v. American Samoa Gov’t, 31 A.S.R.2d 40.

§ 1(4) —Termination

An agent who abandons the principle or his duties as an agent has terminated the agency relationship. Pomare v. Pefu, 5 A.S.R.3d 242 (Land & Titles Div. 2001).

§ 2 Authority of Agent

§ 2(1) —General Provisions

Agent may sign contract for principal whether or not principal is present, and alleged erroneous statement of trial court that principal was present was harmless error. Scanlan v. Steffany, 3 A.S.R. 583.

Even under Statute of Frauds, one partner may obligate partnership by signing contract, acting as agent for other partners. Scanlan v. Steffany, 3 A.S.R. 583.

Where bus driver's supervisor submitted affidavit that any use of bus other than transporting children to school was outside the scope of driver's employment, but there is evidence that passengers on school bus may have been government employees who had been working on the bus, whether driver was within scope of employment is a disputed material fact precluding summary judgment. Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

When an agent settles a claim on behalf of its principal, which settlement is dependent upon facts known to be doubtful, the settlement is not voidable when the doubtful facts turn out to be incorrect. Kent Samoa Inc. v. Shimasaki, 29 A.S.R.2d 44.

Servants, in master/servant relationships, are also capable of appointing subservants, who act under the primary control of the servant but who create liabilities for both the servant and the master. Poutoa v. American Samoa Gov’t, 31 A.S.R.2d 40.

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. American Samoa Gov’t v. Amerika Samoa Bank, 4 A.S.R.3d 249 (Trial Div. 2000).

§ 2(2) —Express/Actual Authority

An agent is not liable for lawful acts done within the scope of his authority for and on behalf of a disclosed principal, and the acts of investigating and terminating an employee are presumed to be acts done within the scope of authority granted by the employer; a principal is solely liable for acts of its agent committed in the course of or within the scope of the agent’s employment. Tuika v. American Samoa Dev. Corp., 3 A.S.R.3d 155 (Trial Div. 1999).

§ 2(3) —Implied Authority

Owner's consent to another person's use of a vehicle may be inferred from a past course of conduct or relationship between the parties. Toleafoa v. Sioka, 5 A.S.R.2d 18.

When the driver of a vehicle is a member of the vehicle owner's family or household, it is more likely that the driver has the owner's implied consent to use the vehicle. Toleafoa v. Sioka, 5 A.S.R.2d 18.

Principle that family relationship between driver and vehicle owner suggests owner's implied consent does not apply to Samoan extended communal family. Toleafoa v. Sioka, 5 A.S.R.2d 18.

Implied permission to use a vehicle is inferred from past occasions of acquiescence or absence of objection in circumstances signifying consent on the part of the vehicle owner. Tauiliili v. American Samoa Government, 13 A.S.R.2d 61.

Evidence was contrary to a showing of acquiescence and passive consent by government to personal use of its vehicle by its employee, where written statement of policies forbade any after-hours or weekend use without specific prior approval of manager; the Governor himself had sent out a memorandum with respect to such use; and the employee's manager had raised the Governor's concerns at staff meetings and circulated the Governor's memorandum to the staff. Tauiliili v. American Samoa Government, 13 A.S.R.2d 61.

Inferential in nature, implied permission for a vehicle's use is usually shown by usage and practice of the parties over a sufficient period of time. Leilua v. Ali'itaeao, 23 A.S.R.2d 97.

Although weaker evidence will support a finding of implied permission to use a vehicle if the drivers are blood relatives than if they were strangers or mere acquaintances, the mere existence of a close family relationship does not of itself establish permissive use. Leilua v. Ali'itaeao, 23 A.S.R.2d 97.

An agent to whom the principal gives the appearance of authority may bind the principal regardless of whether actual authority exists. Kent Samoa Inc. v. Shimasaki, 29 A.S.R.2d 44.

Where person who effectuated transfer of assets of insurance company which had deposited trust funds was attorney for first corporation, and director, officer and attorney for second corporation, second corporation is deemed to have known of the nature of the transfer and, by virtue of its affirmative activity, knowledge and acquiescence, will be estopped in equity from claiming those funds. American Samoa Gov’t v. Amerika Samoa Bank, 4 A.S.R.3d 249 (Trial Div. 2000).

§ 2(4) —Apparent Authority

Although Legislature had enacted rules defining members who could contract on its behalf, where circumstances suggested that these “binding officers” were aware that Committee Chairman was contracting on Legislature’s behalf and did nothing to inform parties that their approvals were required, binding officers’ inaction and acquiescence to the Committee Chairman’s conduct caused Plaintiff to rely on agreement and Legislature would be estopped from disavowing contract and would instead be bound by contract under principles of agency law. Misipeka v. Legislature of American Samoa, 7 A.S.R.3d 96 (Trial Div. 2003).

§ 3 Rights, Duties, and Liabilities

§ 3(1) —Between Principal and Agent

Agent of corporation, acting on behalf of corporation, is not personally liable for corporate debts. Jt. Holdings & Tr. Ltd. v. P. J. Brennan, Inc., of Samoa, 4 A.S.R. 812.

In determining whether a business entity believes in good faith that its claim is just for the purpose of determining whether the claim can be consideration for a settlement, the entity is chargeable with the knowledge of its agents who participated in the transactions giving rise to the claim. Development Bank v. Ilalio, 5 A.S.R.2d 110.

An agent is generally not a party to a contract made for a disclosed principal. Ryan, Inc., v. Vaka, 5 A.S.R.2d 149.

An institutional party to litigation is chargeable with the knowledge, and responsible for the actions, of its agents who conduct the transactions that are the subject of the litigation. Bank of Hawaii v. Congregational Christian Church, 9 A.S.R.2d 100.

Government employee who, in the early hours of the morning and while in an intoxicated condition, went to his place of work and picked up his employer's vehicle and then invited friends to go riding in the vehicle, was acting outside the scope of his employment; although he was to have used the vehicle later that day in his employment, his earlier personal use was unauthorized and contrary to written policies and directives governing private use of government vehicles, and he was clearly on a frolic of his own. Tauiliili v. American Samoa Government, 13 A.S.R.2d 61.

Where employee's negligence was clearly related to her performance of her duties but was also clearly related to her agreement with the child's parents, who had reason to know her strengths and weaknesses and the dangers of their entrustment to her of their child's safety, the employer would be vicariously liable for the employee's negligent performance of her duties and the parents would be liable for such negligence as was attributable to the private agreement. Saufo`i v. American Samoa Government, 14 A.S.R.2d 15.

Employer/bailee is also contractually liable for the negligence of his employees in executing the bailment, since he cannot receive money for performing a duty and at the same time escape liability for violating such duty by shifting the responsibility to an employee. Garcia v. Galea`i, 15 A.S.R.2d 14.

A general agent for a disclosed or partially disclosed principal subjects his principal to liability for acts done on his account which usually accompany or are incidental to transactions which the agent is authorized to conduct if, although they are forbidden by the principal, the other party reasonably believes that the agent is authorized to do them and has no notice that he is not so authorized. Poutoa v. American Samoa Gov’t, 31 A.S.R.2d 40.

A servant is only bound to obey reasonable orders of the employer. Faumuina v. American Samoa Gov’t Emp. Ret. Fund, 1 A.S.R.3d 112 (Trial Div. 1997).

§ 3(2) —Between Principal and Third Person

One who delegates his affairs to lawyers, accountants, and others, and who signs the documents his own agents have prepared for him, cannot escape liability to a third party by claiming that the documents are not binding on him because he did not read or understand them. Ralston Purina Co. v. The Louise V, 3 A.S.R.2d 48.

Employer/bailee is also contractually liable for the negligence of his employees in executing the bailment, since he cannot receive money for performing a duty and at the same time escape liability for violating such duty by shifting the responsibility to an employee. Garcia v. Galea`i, 15 A.S.R.2d 14.

Under doctrine of respondeat superior, a bailee employer is vicariously liable for loss or injury with respect to the bailed property which results from the negligence or wrongful acts or omissions of his employees in executing the bailment within the course and scope of their employment. Garcia v. Galea`i, 15 A.S.R.2d 14.

When a servant steps outside of his employment to do some act for himself, not connected with the master's business, the master is not vicariously liable if those acts cause tortious harm. Fa'aola v. Taumua, 27 A.S.R.2d 115.

A party who conducts a transaction with an agent is liable to a disclosed principal to the same extent as if the principal had conducted the transaction. Joseph D. Seagram & Sons, Inc. v. Comm. Credit Corp. of American Samoa, 29 A.S.R.2d 121.

The relationship of master and servant is a species of agency in which the principal may be liable for the torts of the agent. Poutoa v. American Samoa Gov’t, 31 A.S.R.2d 40.

Inherent in the power of agency, is the power of the agent to subject the principal to liability for unauthorized conduct. Poutoa v. American Samoa Gov’t, 31 A.S.R.2d 40.

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. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

§ 3(3) —Between Principal and Independent Contractor

SEE EMPLOYMENT LAW § 3 – INDEPENDENT CONTRACTORS

SEE TORTS § 8 – VICARIOUS LIABILITY

A garageman who had possession of a vehicle in order to repair it and who was outside the direction or control of the owner was an "independent contractor" for whose negligence the owner could not be held liable under a theory of agency or master/servant liability. Sataua v. Himphill, 5 A.S.R.2d 61.

The employer of an independent contractor is generally not liable for physical harm done by the contractor or the contractor's employees; however, an employer is liable when he knows or has reason to know that, in the ordinary course of doing the work in a usual or prescribed manner, the work is likely to result in trespass. Letuli v. Le'i, 22 A.S.R.2d 77.

As a general rule, the employer of an independent contractor is not liable for harm resulting from that contractor’s acts or omissions. American Samoa Gov't v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

§ 3(4) —Between Agent and Third Person

SEE TORTS § 8 – VICARIOUS LIABILITY

When a seller conditions his agreement to sell goods on an agent's proffer of his own creditworthiness on behalf of that agent's principal, the agent becomes an accountable party to the sales contract. Ryan, Inc., v. Vaka, 5 A.S.R.2d 149.

A known agent is not liable for the debts of its disclosed principal. Korea Deep Sea Fisheries Assn. v. M/V Corona #1, 27 A.S.R.2d 53.

Under the partially disclosed principal theory of an agent's liability to a third party for actions the agent has taken on behalf of a principal, the third party must establish that the third party was aware of the agency, was without knowledge of the principal's identity, and had formed a valid contract with the agent. Korea Deep Sea Fisheries v. M/V Corona, 27 A.S.R.2d 155.

Under the doctrine of respondeat superior, one expressly promises to incur liability, regardless of his own fault, for the negligent or intentional conduct of his agents or employees. Progressive Ins. Co, Ltd. v. S. Star Int’l, Inc., 6 A.S.R.3d 112 (Trial Div. 2002).

§ 4 Powers of Attorney

Where individual relocated to Hawaii, such action constituted a voluntarily abandonment of his authority to act, under power of attorney, for person residing in American Samoa. Such abandonment effectively terminated the power of attorney and such authority could not be restored without execution of new power of attorney. Pomare v. Pefu, 5 A.S.R.3d 242 (Land & Titles Div. 2001).

AMERICAN SAMOA GOVERNMENT

§ 1 The Federal Government, Constitution, & Laws of American Samoa

1(1) —General Principles

1(2) —Territorial Status

1(3) —Applicable Laws

1(4) —Treaties

2 Separation of Powers

3 The Legislature

3(1) —Power and Authority

3(1)(a) —Generally

3(1)(b) —Law-making Powers

3(1)(c) —Duty to Protect Land & Customs

3(1)(d) —Appropriation of Funds

3(1)(e) —Internal Procedural Powers

3(2) —Committees

3(3) —Legislation

4 The Executive

4(1) —The Governor

4(2) —Power and Authority

4(3) —Agencies

5 The Judiciary

5(1) — Power and Authority

5(2) —Administration of Court

5(3) —Disqualification – Recusal

5(4) —Precedence and Stare Decisis

5(5) —Supervision of Proceedings and Litigation

5(6) —Supervision of Judgments and Settlements

5(7) —Contempt

5(8) —Statutory Construction

6 Sovereign Rights

7 Public Records

8 Government Employees

§ 1 The Federal Government, Constitution, & Laws of American Samoa

SEE CONSTITUTIONAL LAW § 3 – CONSTITUTIONAL AND STATUTORY INTERPRETATION

SEE SAMOAN CUSTOMS § - IMPACT ON AMERICAN SAMOA LAWS

§ 1(1) —General Principles

Government of American Samoa exists solely by the authority of United States, and American Samoa is governed under authority of Congress. Lago v. Mageo, 4 A.S.R. 287.

Congress has delegated all powers of governance of American Samoa, including the power to tax, to the President. Mahoney v. Am. Samoa Gov’t, 2 A.S.R.2d 74 (Trial Div. 1985).

Since Congress has entrusted the governance of this Territory to the Department of the Interior, which has approved the Territory’s Constitution and all the laws promulgated under it, there is no need for special Congressional authorization of the power to tax. Mahoney v. Am. Samoa Gov’t, 2 A.S.R.2d 74 (Trial Div. 1985).

American Samoa's constitution was promulgated under the authority of Congress and the President of the United States, as delegated to the Secretary of the Interior. Revised Const. Of American Samoa, Preamble and art. V, § 11 (1967). Alamoana Recipe, Inc., v. American Samoa Gov't, 25 A.S.R.2d 97.

The High Court of American Samoa is not a federal court. American Samoa Gov't v. Leiataua, 27 A.S.R.2d 26.

The Cession of Tutuila and Aunu`u (April 17, 1900) and the American Samoa Revised Constitution create a government duty to protect American Samoan land only when it is taken from American Samoans and given to foreigners. Timu v. McMoore, 6 A.S.R.3d 41 (App. Div. 2002).

The federal Constitution applies in American Samoa only insofar as its tenets restate those fundamental limitations in favor of personal rights that are the basis of all free government. Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

§ 1(2) —Territorial Status

Although not supreme, independent, or sovereign, American Samoa has a different relationship with the Union than the states, with a number of attendant advantages and disadvantages. American Samoa Gov't v. Falefatu, 17 A.S.R.2d 114.

Under its "unorganized and unincorporated" status, American Samoa is not part of the federal system and is not intended for incorporation. American Samoa Gov't v. Falefatu, 17 A.S.R.2d 114.

Article IV, Section 3 of the United States Constitution, otherwise known as the territorial clause, provides Congress with plenary powers to legislate for the territories. Muavaefa`atasi v. American Samoa Gov’t, 4 A.S.R.3d 184 (Trial Div. 2000).

Congress’s power to legislate for the territories is limited only by the U.S. Constitution, and not by any laws of the territories themselves. Muavaefa`atasi v. American Samoa Gov’t, 4 A.S.R.3d 184 (Trial Div. 2000).

Those territorial laws which are inconsistent with applicable United States laws, violate the Territory’s Constitution. Muavaefa`atasi v. American Samoa Gov’t, 4 A.S.R.3d 184 (Trial Div. 2000).

§ 1(3) —Applicable Laws

Portions of common law of England (including such acts of parliament as are applicable) which were in force at time of American Revolution, became part of jurisprudence of United States and have taken effect in American Samoa by provision of Code. Talo v. Poi, 2 A.S.R. 9.

Statute adopts common law of England as applied and modified by U.S. courts at time statute adopted and since construed. R.C.A.S. 1.0101, 3. Tung v. Ah Sam, 4 A.S.R. 764.

Federal constitution would not prohibit American Samoan hiring preference, which is reasonably calculated to alleviate the difficulties that attend a government composed largely of officials with no knowledge of the local language and culture and who generally remain in the territory only temporarily. Banks v. American Samoa Government, 4 A.S.R.2d 113.

In "unincorporated" territories the federal constitution applies only insofar as its tenets restate "those fundamental limitations in favor of personal rights" that are "the basis of all free government" or insofar as Congress expressly extends a particular constitutional provision to the territory. Banks v. American Samoa Gov't, 4 A.S.R.2d 113.

Although the due process clause of the federal constitution, which implicitly forbids racial discrimination by the federal government, binds the territories in at least some of its applications, it does not necessarily bind the territories in the same ways and to the same extent as in the continental United States. U.S. Const. amdt. 14. Banks v. American Samoa Gov't, 4 A.S.R.2d 113.

Federal constitutional requirement that "citizens of each state shall be entitled to all privileges and immunities of citizens in the several states" applies to states and not to unincorporated and unorganized territories. U.S. Const. art. IV § 2. Banks v. American Samoa Gov't, 4 A.S.R.2d 113.

Federal civil rights laws do not operate to extend into territories those applications of the federal constitution that would not apply in the territories under the doctrine of the Insular Cases. 42 U.S.C. § 1983. Banks v. American Samoa Gov't, 4 A.S.R.2d 113.

Territories are not "states" within meaning of fourteenth amendment, so Congress acted under its constitutional power to regulate territories when it revised civil rights statute to include territories. U.S. Const. art. IV § 3; 42 U.S.C. § 1983. Ferstle v. American Samoa Gov't, 4 A.S.R.2d 160.

Extension of remedial civil rights statute to territories was premised initially on the concept, unjustifiable as applied to modern American Samoa, of territories as "inchoate states". 42 U.S.C. § 1983. Ferstle v. American Samoa Government, 4 A.S.R.2d 160.

Applicability of remedial civil rights statute to American Samoa does not extend application in territory of any federal constitutional provisions that would not otherwise apply under the doctrine of the Insular Cases. 42 U.S.C. § 1983. Ferstle v. American Samoa Gov't, 4 A.S.R.2d 160.

Right to effective assistance of counsel applies in American Samoa. Am. Samoa Rev. Const. art I, § 6; A.S.C.A. §§ 46.0502, 46.1001. Suisala v. Moaali'itele, 6 A.S.R.2d 15.

Absent waiver of sovereign immunity or consent to suit, action for damages under civil rights law may not be maintained against any of the several states. 42 U.S.C. § 1983. Ferstle v. American Samoa Gov't, 4 A.S.R.2d 160.

In territories not intended for incorporation into the United States, the federal constitution applies only insofar as its tenets restate fundamental limitations that are the basis of all free government. American Samoa Gov't v. Macomber, 8 A.S.R.2d 182.

Extent to which the equal protection clause of the Fourteenth Amendment of the U.S. Constitution applies in the territory of American Samoa is unclear. U.S. Const. amdt. 14. Macomber v. American Samoa Gov't, 12 A.S.R.2d 29.

American Samoa is an unorganized, unincorporated territory; accordingly, the federal Constitution applies here only insofar as its tenets restate "those fundamental limitations in favor of personal rights" that are "the basis of all free government," or which have been specifically made applicable by Act of Congress. American Samoa Gov't v. Falefatu, 17 A.S.R.2d 114.

When a conflict arises, Samoan custom must give way to the laws of the United States and American Samoa. A.S.C.A. § 1.0202. Taeleifi v. Willis, 21 A.S.R.2d 118.

Territorial laws which are inconsistent with applicable U.S. laws violate the territorial constitution, which in turn was promulgated under the authority of the U.S. Secretary of the Interior. Rev. Const. Am. Samoa Art. II, § 1(a), Art. V, § 11. Alamoana Recipe Inc. v. American Samoa Gov't, 24 A.S.R.2d 156.

The High Court may interpret territorial statutes differently than federal courts' interpretations of similar, but not identical, federal statutes, but this does not imply that territorial law supersedes federal law. Alamoana Recipe Inc. v. American Samoa Gov't, 24 A.S.R.2d 156.

Federal laws need not be passed by the American Samoa legislature, since Congress has the constitutional power to make rules and regulations for the territories, pursuant to U.S. Const. art. VI, and the federal Constitution and laws are the supreme law of the land, pursuant to U.S. Const. art. IV, § 3. Alamoana Recipe, Inc., v. American Samoa Gov't, 25 A.S.R.2d 97.

Under the Deeds of Cession between the chiefs of Eastern Samoa and the United States, all vestiges of sovereignty passed from former to the latter. Alamoana Recipe, Inc., v. American Samoa Gov't, 25 A.S.R.2d 97.

Federal financial privacy laws contained in 12 U.S.C. §§ 3401 et seq., apply only to agencies and officials of the United States Government. American Samoa Gov’t v. Leiataua, 27 A.S.R.2d 26.

To the extent the U.S. Constitution would deprive ASG of the ability to search the luggage of persons entering American Samoa, it is inapplicable in American Samoa. This situation is the kind where rights which may be fundamental in the United States would tend to be destructive to the traditional culture. A.S.G. v. Pu`aa, 31 A.S.R.2d 73.

Those territorial laws which are inconsistent with applicable United States laws, violate the Territory’s Constitution. Muavaefa`atasi v. American Samoa Gov’t, 4 A.S.R.3d 184 (Trial Div. 2000).

§ 1(4) —Treaties

The Supremacy Clause of the U.S. Constitution sometimes requires that courts exclude evidence where such is explicitly commanded by a treaty or an executive agreement. American Samoa Gov't v. Enoka, 5 A.S.R.3d 81 (Trial Div. 2001).

Because the Vienna Convention is a ratified treaty, its provisions must be regarded as supreme. American Samoa Gov't v. Enoka, 5 A.S.R.3d 81 (Trial Div. 2001).

§ 2 Separation of Powers

SEE CONSTITUTIONAL LAW § 4 – SEPARATION OF POWERS

Since courts favor constitutionality of statutes, courts will construe Industrial Incentive Act as not giving Governor power to grant partial exemptions in which case it is constitutional. Bottling Corporation of Samoa v. Lee, 4 A.S.R. 499.

Constitution provides that each house of Legislature shall be judge of qualifications of its members. (Const., Art. 22) Tuia v. Yandall, 4 A.S.R. 559.

Court rule providing for criminal prosecution by petition contravenes statute and usurps discretionary function of executive branch, thereby violating constitutionally mandated separation of powers. Lutali v. Pereira, 1 A.S.R.2d 58 (Trial Div. 1981).

By making it easier for the legislature to supervise the quasi-legislative activities of the executive branch, a territorial statute providing for "legislative veto" enhanced the diffusion of power among the different branches of government. A.S.C.A. § 37.2030. Tuika Tuika v. Governor of American Samoa, 4 A.S.R.2d 85.

Territorial statute providing for a "legislative veto" of leases of government land did not violate American Samoa Constitution. A.S.C.A. § 37.2030; Rev. Const'n of Am. Samoa art. II §§ 9 & 10. Tuika Tuika v. Governor of American Samoa, 4 A.S.R.2d 85.

Where court had ordered that prisoner not be allowed to leave correctional facility without permission of the court except for emergency medical treatment, prison officials had no authority to allow prisoner to appear in court for post conviction motions without requesting permission of court. American Samoa Gov't v. Masaniai, 5 A.S.R.2d 152.

Territorial statute requiring the Governor to submit to the Fono for possible disapproval any lease of land lasting over ten years was not legislation "affecting the powers of the legislature" requiring the prior approval of the Secretary of the Interior. A.S.C.A. § 37.2030. American Samoa Gov't v. Tuika Tuika, 6 A.S.R.2d 58.

Territorial government is bound by court orders in proceedings to which it is a party and should not issue legal opinions that counsel disobedience to such orders. American Samoa Gov't v. Satele, 7 A.S.R.2d 154.

Statute explicitly recognizing power of Chief Justice to make exceptions to rules is clearly not inconsistent with constitutional provision for judicial independence. Rev'd Const. Am. Samoa art. III § 2; A.S.C.A. § 46.0501. American Samoa Gov't v. Tile, 8 A.S.R.2d 120.

Reasonable legislative regulation of judicial procedure does not necessarily conflict with judicial independence. Rev'd Const. Am. Samoa art. III § 2; A.S.C.A. § 46.0501. American Samoa Gov't v. Tile, 8 A.S.R.2d 120.

Since the Fono has declined to adopt the Uniform Commercial Code (UCC), the court should not attempt to do so by judicial fiat. Pacific Reliant Industries, Inc. v. Amerika Samoa Bank, 16 A.S.R.2d 57.

Even if a statute creates unintended hardships, the responsibility to rewrite a statute belongs to the Legislature and not the High Court. Nelson & Robertson Pty., Ltd. v. Diocese of Pago Pago, 21 A.S.R.2d 6.

The ability of the House or Senate to maintain a suit against the executive branch is, in the proper circumstances, beyond question. Senate v. Lutali, 26 A.S.R.2d 125.

The Executive Branch does not have authority to pay anything in excess of an appropriation without express language granting such action. Senate v. Lutali, 27 A.S.R.2d 126.

The Executive Branch's power to fix employees' salaries is limited by the amount appropriated by the Legislature. Senate v. Lutali, 27 A.S.R.2d 126.

The Revised Constitution and laws are clear that the Executive Branch 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. Senate v. Lutali, 27 A.S.R.2d 126.

The Revised Constitution of American Samoa requires that the land alienation laws be changed by specific political procedures, and not by judicial fiat. Rev. Const. Amer. Samoa, Art. I, § 3. Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 117.

The Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings seems to be an intelligent law, benefiting American Samoa, as well as other states and territories of the United State, should we adopt it as legislation. However, we have not, and this court has stated repeatedly that it will not sit as a legislature. Thus, although the Chief Justice would strongly recommend that the Legislature of American Samoa consider enacting the Uniform Act, he cannot proceed by judicial fiat as if the Legislature has already enacted it. In Re Proceedings to Compel Attendance of May Fitiausi, 29 A.S.R.2d 71.

A court cannot, by injunction or mandamus, control executive branch officials in their legitimate exercise of discretion. A court may, however, enjoin executive action when executive branch officials assume to act in contravention of the constitution or laws applicable in the jurisdiction. The Senate of the Legislature of Am. Samoa v. Lutali, 29 A.S.R.2d 165.

A court's authority extends to restraints on executive branch officials from overspending legislative appropriations. The Senate of the Legislature of Am. Samoa v. Lutali, 29 A.S.R.2d 165.

If an executive branch official has authorized an improper expenditure of public funds, a declaratory judgment is appropriate. If, however, the expenditure is threatened in the future, such as a governor’s announced intention to do business in a manner that would result in a violation of the law, injunctive relief is appropriate. The Senate of the Legislature of Am. Samoa v. Lutali, 29 A.S.R.2d 165.

Separation of powers principles do not prevent the judicial branch from voiding a lease approved by the Governor in violation of due process rights. Pen v. Lavata`i, 30 A.S.R.2d 10.

The object of the tripartite system of government of American Samoa, and of the separation of the legislative, the executive, and the judicial departments, is basic and vital in precluding a commingling of these essentially different powers of government in the same hands. B.H.P. Petroleum South Pac., Inc. v. American Samoa Gov’t, 2 A.S.R.3d 10 (App. Div. 1998).

The Revised Constitution of American Samoa contemplates a government patterned after the federal tripartite system and, accordingly, the well-established principle of separation of powers applies. House of Representatives of American Samoa v. Sunia, 3 A.S.R.3d 123 (Trial Div. 1999).

The Legislature of American Samoa, under the principle of separation of powers, has wide discretion in implementing its internal procedures as to employment and termination of employment. Velega v. Legislature of American Samoa, 4 A.S.R.3d 145 (Trial Div. 2000).

§ 3 The Legislature

§ 3(1) —Power and Authority

§ 3(1)(a) —Generally

A writ of mandamus may not compel the reversal of a decision of a legislative leader, exercising the proper discretion of his legislative capacity, but where the required act of a legislative leader is purely ministerial, mandamus may lie to compel it. Lutu v. Ale, 28 A.S.R.2d 43.

The government, like everyone else, is bound by court orders in proceedings to which it is a party. Muavaefa’atasi v. House of Representatives, 7 A.S.R.3d 117 (Trial Div. 2003).

The standard that free speech is not absolute and may, in certain, narrow situations be regulated, also applies to speech in the legislative process. Muavaefa’atasi v. House of Representatives, 7 A.S.R.3d 117 (Trial Div. 2003).

§ 3(1)(b)—Law-making Powers

Under 1960 Constitution, Legislature had power to enact laws governing jurisdiction, operations or procedures of judiciary if enactments were approved by Governor and Secretary of Interior. Fanene v. Government, 4 A.S.R. 957.

American Samoa’s constitutional provisions regarding reading and publication of bills does not require that an act of Congress adopted by reference be read and published anew. Incorporated penal provision providing adequate notice of what is prohibited is not unconstitutional. Am. Samoa Gov’t v. Ybarra, 1 A.S.R.2d 93 (Trial Div. 1983).

By making it easier for the legislature to supervise the quasi-legislative activities of the executive branch, a territorial statute providing for "legislative veto" enhanced the diffusion of power among the different branches of government. A.S.C.A. § 37.2030. Tuika Tuika v. Governor of American Samoa, 4 A.S.R.2d 85.

Those territorial laws which are inconsistent with applicable United States laws, violate the Territory’s Constitution. Muavaefa`atasi v. American Samoa Gov’t, 4 A.S.R.3d 184 (Trial Div. 2000).

The effective scope of any legislative act is limited to the subject embraced in its title and matters properly connected thereto. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

§ 3(1)(c)—Duty to Protect Land & Culture

Under Constitution of American Samoa the legislature, and particularly the Senate which is composed of traditional chiefs chosen according to Samoan custom, has a peculiar relationship to the preservation of land and culture. Rev. Const'n of Am. Samoa art. I § 3, art. II § 4. Tuika Tuika v. Governor of American Samoa, 4 A.S.R.2d 85.

Any renewal or extension of a lease for a term 10 years or more requires Fono approval. A.S.C.A. § 37.2030. American Samoa Gov't v. South Pacific Island Airsystems, Inc., 28 A.S.R.2d 74.

In light of its constitutional authority to "protect the lands," the Legislature has a legitimate interest in the oversight and regulation of any land development projects by non-Samoans. This interest is legitimately furthered by requiring that detailed plans be submitted and approved by the Governor before a lease arrangement can go forward. Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 117.

§ 3(1)(d)—Appropriation of Funds

In general, money appropriated for a particular budgetary purpose, which remains unexpended and unobligated at the expiration of the appropriation legislation, lapses and becomes public revenue under the Legislature's plenary control. The Senate v. Lutali, 27 A.S.R.2d 126.

Under the administrative rules of American Samoa, the authority to spend public funds "is available for obligation only during a specified fiscal year and expires at the end of that time." A.S.A.C. § 5.0103(16)(B)(I). The Senate v. Lutali, 27 A.S.R.2d 126.

Once the Legislature appropriates funds for a budgetary purpose defined in the annual budget acts, the funds are only available for the term stated in the annual act and no longer, unless expressly provided by the Legislature. The Senate v. Lutali, 27 A.S.R.2d 126.

The Revised Constitution and laws are clear that the Executive Branch 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. The Senate v. Lutali, 27 A.S.R.2d 126.

A Legislator has the right to request work from the Legislative Financial Officer, and the Legislative Financial Officer may not disclose the request or the resulting information to anyone else before the Legislator making the request has an opportunity to review the resulting work product. Lutu v. Ale, 28 A.S.R.2d 43.

An individual Legislator has the authority of the entire Legislature for purposes of gathering information through the Legislative Financial Officer. Lutu v. Ale, 28 A.S.R.2d 43.

The House rule requiring that the Speaker review materials prepared by the Legislative Financial Officer before their submission to the Legislator requesting the work offends the plain language of the statute and exceeds the constitutional power of a single house to make rules of procedure for itself, and is therefore invalid insofar as it purports to countermand statutory mandate. Lutu v. Ale, 28 A.S.R.2d 43.

The office of the Speaker is an agency of government within the meaning of A.S.C.A. § 2.0602, and the Speaker therefore has a plain duty to cooperate with the Legislative Financial Officer by opening records to the Legislative Financial Officer within normal working hours and times. Lutu v. Ale, 28 A.S.R.2d 43.

A.S.C.A. § 10.0603 does not contemplate or give any direction regarding the disclosure of financial records to individual members of either house, and falls well short of creating the "plain duty" and "plain right" required for the issuance of a writ of mandamus. Lutu v. Ale, 28 A.S.R.2d 43.

The American Samoa Legislature is the only branch explicitly granted the power to pass laws appropriating and enabling the expenditure of public funds, and to approve budgets submitted by the Governor. Nua v. Sunia, 4 A.S.R.3d 208 (Trial Div. 2000).

In American Samoa, spending authorization power is reserved to the Legislature. Nua v. Sunia, 4 A.S.R.3d 208 (Trial Div. 2000).

Any statute purporting to alter the spending authorization power in derogation of the Revised Constitution of American Samoa is a priori null and void. Nua v. Sunia, 4 A.S.R.3d 208 (Trial Div. 2000).

§ 3(1)(e) —Internal Procedural Powers

The Legislature of American Samoa, under the principle of separation of powers, has wide discretion in implementing its internal procedures as to employment and termination of employment. Velega v. Legislature of American Samoa, 4 A.S.R.3d 145 (Trial Div. 2000).

The primary powers by which legislative bodies preserve their institutional integrity without compromising the principle that citizens may choose their representatives are the powers of the House granted in Am. Samoa Rev. Const. art. II § 11: the power to determine its rules of procedure, punish members for disorderly behavior and, with the consent of two-thirds of its entire membership, may expel a member, but not a second time for the same offense. Muavaefa’atasi v. House of Representatives, 7 A.S.R.3d 117 (Trial Div. 2003).

The power of the legislature to make rules governing its own proceedings would be nugatory unless it was coupled with a power to punish for disorderly behavior. Muavaefa’atasi v. House of Representatives, 7 A.S.R.3d 117 (Trial Div. 2003).

Punishment of a legislator for his legislative speech rests squarely within the Legislature and is immune from the Court’s review. Muavaefa’atasi v. House of Representatives, 7 A.S.R.3d 117 (Trial Div. 2003).

Expulsion requires a two-thirds vote and such procedure ensures a reflective and thoughtful decision by the entire legislative body and not just the triumph, on a whim, of a mere majority. Muavaefa’atasi v. House of Representatives, 7 A.S.R.3d 117 (Trial Div. 2003).

Long-term suspension contradicts the purpose and constrictions of the expulsion clause. It allows a simple majority to effectuate an end-around assault on the super-majority requirement of Am. Samoa Rev. Const. art. II § 11. Muavaefa’atasi v. House of Representatives, 7 A.S.R.3d 117 (Trial Div. 2003).

Expulsion of a senator provides another safeguard to the democratic process by allowing a vacant position to be filled, thereby extending continuous representation to the district of the barred representative. Muavaefa’atasi v. House of Representatives, 7 A.S.R.3d 117 (Trial Div. 2003).

The power to punish is the primary power by which legislative bodies preserve their institutional integrity without compromising the principle that citizens may choose their representatives. Muavaefa’atasi v. House of Representatives, 7 A.S.R.3d 117 (Trial Div. 2003).

The House failed to comport with due process when it: (1) did not give the legislator notice of the hearing where the House voted and debated on his conduct; (2) conducted these meetings in the legislator’s absence; and (3) did not allow him the opportunity to be heard, call witnesses or cross-examine his accusers. Muavaefa’atasi v. House of Representatives, 7 A.S.R.3d 117 (Trial Div. 2003).

Normally, the courts must refrain from prying into matters that admit of legislative adjudication rather than judicial resolution, such as disputes dealing solely with internal legislative rules or functions. Muavaefa’atasi v. House of Representatives, 7 A.S.R.3d 117 (Trial Div. 2003).

§ 3(2) —Committees

Questions about the disposal of government property were relevant to an inquiry into the causes of a government budget deficit. Senate Select Investigating Committee v. Horning, 3 A.S.R.2d 14.

Committee created by one house of the legislature is a committee "of the legislature" within the meaning of territorial statute authorizing committees to subpoena witnesses. A.S.C.A. § 2.1003 et seq. Senate Select Investigating Committee v. Horning, 3 A.S.R.2d 14.

Territorial statute requiring legislative committees to adopt rules to govern their procedures, and requiring that person served with subpoenas also be served with a copy of the rules, was not satisfied by a committee's decision to adopt as "rules" the provisions of the statute itself. A.S.C.A. § 2.1003 et seq. Senate Select Investigating Committee v. Horning, 3 A.S.R.2d 14.

Committee's failure to comply with a statute requiring it to adopt rules and to serve a copy of these rules on person served with subpoena justified the refusal of a person served with subpoena to testify. A.S.C.A. §§ 2.1006, 2.1011, 2.1018. Senate Select Investigating Committee v. Horning, 3 A.S.R.2d 14.

§ 3(3) —Legislation

Acts of Samoan legislature, if not vetoed by Secretary of Interior, are entitled to as much weight as legislative enactments in an organized territory. Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983.

Legislative resolution disapproving lease of government land, pursuant to statute giving binding effect to such resolutions, was not a "law" within the meaning of a constitutional provision requiring all laws to be enacted by bill rather than resolution. Rev. Const'n of Am. Samoa art. II § 9. Tuika Tuika v. Governor of American Samoa, 4 A.S.R.2d 85.

Statute drawing a distinction between people whose licenses were suspended for driving under the influence and people whose licenses were suspended for other reasons had a rational basis, since classification was based on conduct rather than status and legislature believed there was a special need to deter and punish drunken driving. A.S.C.A. § 22.0223. American Samoa Gov't v. Macomber, 8 A.S.R.2d 182.

Legislative inaction in the face of judicial statutory construction strongly suggests agreement with, or at least acquiescence in, the judicial interpretation of those laws. American Samoa Gov't v. Falefatu, 17 A.S.R.2d 114.

When the legislature re-enacts a statute or adopts amendments to it "without a suggestion of disagreement" with a prior judicial construction, a very strong presumption exists that the legislature has adopted the prior construction. American Samoa Gov't v. Falefatu, 17 A.S.R.2d 114.

Even if a statute creates unintended hardships, the responsibility to rewrite a statute belongs to the Legislature and not the High Court. Nelson & Robertson Pty., Ltd. v. Diocese of Pago Pago, 21 A.S.R.2d 6.

The requirement that a statute must have a rational basis is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In Re the Matai Title I`aulualo, 25 A.S.R.2d 155.

Whether a statute operates retrospectively or prospectively only is a question of legislative intent. American Samoa Gov't v. Meredith, 28 A.S.R.2d 10.

The Revised Constitution of American Samoa requires that the land alienation laws be changed by specific political procedures, and not by judicial fiat. Rev. Const. Amer. Samoa, Art. I, § 3. Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 117.

Although states and some possessions can enact laws to exempt themselves from the Johnson Act, American Samoa cannot. Muavaefa`atasi v. American Samoa Gov’t, 4 A.S.R.3d 184 (Trial Div. 2000).

The American Samoa 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. Muavaefa`atasi v. American Samoa Gov’t, 4 A.S.R.3d 184 (Trial Div. 2000).

The effective scope of any legislative act is limited to the subject embraced in its title and matters properly connected thereto. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

§ 4 The Executive

SEE TAXATION § 11(2) – AUTHORITY OF GOVERNOR, BOARD

§ 4(1) —The Governor

Since time of cession, authority of Governor is paramount to that of District Governor who is appointed by and holds office at pleasure of Governor. Teo v. Liufau, 1 A.S.R. 628.

When Governor of American Samoa is investigating in his official capacity, statements made to him are privileged, and, as such, cannot form the basis for actionable slander. Dwyer v. McDonald, 1 A.S.R. 652.

Only in extraordinary circumstances will a court compel the testimony of the chief executive of the jurisdiction in which the court sits. Fa'atiliga v. Lutali (Mem.), 3 A.S.R.2d 124.

Most information available from chief executive of state or territory can be just as easily obtained from lesser officials. Fa'atiliga v. Lutali (Mem.), 3 A.S.R.2d 124.

Party may compel testimony from chief executive of state or territory only if it seems absolutely necessary to make out his case and the party can convince the court that there is some chance the testimony will enable him to prevail. Fa'atiliga v. Lutali (Mem.), 3 A.S.R.2d 124.

Before being allowed to compel testimony of territorial Governor regarding alleged scheme to dispose of government property for less than its actual value, party must produce other evidence of Governor's personal involvement in such scheme. Fa'atiliga v. Lutali (Mem.), 3 A.S.R.2d 124.

Where incumbent Governor was actively involved in affairs of a corporation before he became Governor and is the only available witness with detailed knowledge of events material to litigation involving the corporation, a party may compel his testimony. Fa'atiliga v. Lutali (Mem.), 3 A.S.R.2d 124.

Territorial statute requiring certain transactions to be "approved in writing by the Governor" was not violated when Governor signed a lease document and then authorized members of his staff to make certain revisions to the document before it left his office, even though the Governor did not sign the document a second time after the changes were made. A.S.C.A. § 30.0131. American Samoa Gov't v. Samoa Aviation, Inc., 11 A.S.R.2d 144.

A matai's alienation of land must comply with certain statutory procedures, including the approval of the Governor of American Samoa. A.S.C.A § 37.0204. Alaimalo v. Sivia, 17 A.S.R.2d 25.

The power to expel aliens is a fundamental, sovereign power exercised by the political branches of government. American Samoa Gov't v. Falefatu, 17 A.S.R.2d 114.

Because the Governor has general supervision and control of all executive departments, agencies and instrumentalities of the Government, personnel decisions are subject to his direction as long as his actions are in accordance with applicable territorial and federal laws and rules. Rev. Const. Am. Samoa Art. II, § 7; A.S.C.A. § 7.0110; A.S.A.C. §§ 4.0102, 4.0111(b). Sala v. American Samoa Gov't, 21 A.S.R.2d 14.

An application for an order directing the Government of American Samoa to show cause why it should not be held liable for a judgment remains unsupported if it is not accompanied by evidence that the Governor has given prior approval to the garnishment of the Government pursuant to A.S.C.A. § 43.1803(b). Development Bank of American Samoa v. Mau, 25 A.S.R.2d 17.

In light of its constitutional authority to "protect the lands," the Legislature has a legitimate interest in the oversight and regulation of any land development projects by non-Samoans. This interest is legitimately furthered by requiring that detailed plans be submitted and approved by the Governor before a lease arrangement can go forward. Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 117.

To become valid, a lease of native land must be approved by the Governor. A.S.C.A. § 37.0221(a). Before the Governor approves any document affecting title to land, it must be reviewed by the Land Commission for recommendations. A.S.C.A. § 37.0203(a). Moetoto v. Tauileva, 28 A.S.R.2d 144.

The Director of Manpower Resources, not the Governor, has the statutory authority to administer the personnel laws of American Samoa. Rakshan v. American Samoa Gov't, 28 A.S.R.2d 151.

Although the governor may voluntarily choose to grant audiences to anyone who seeks to maintain an at-will periodic tenancy or who proposes to lease government land, due process does not mandate that the governor must conduct formal administrative hearings whenever he exercises his discretion to terminate an at-will periodic tenancy or acts on a proposal to lease government land. Congressional Church of Jesus in Samoa v. A.S.G., 31 A.S.R.2d 122.

A decision regarding the lease of government land is a matter solely within the governor’s discretion. Congressional Church of Jesus in Samoa v. A.S.G., 31 A.S.R.2d 122.

The power to protect American Samoa's borders is vested in both the executive and legislative branches and the Governor's authority over immigration matters is limited by the statutory grant of the Legislature. Vaella’a v. Sunia, 1 A.S.R.3d 88 (Trial Div. 1997).

Simply naming a program an "amnesty" program does not bring it within the scope of the Governor's pardoning power. Vaella’a v. Sunia, 1 A.S.R.3d 88 (Trial Div. 1997).

The Governor’s pardoning power is limited to granting reprieves for past offenses and can only be exercised after an individual has been convicted. Vaella’a v. Sunia, 1 A.S.R.3d 88 (Trial Div. 1997).

Although Governor may grant pardons, or amnesty, after convictions for immigration violations, he isn’t empowered to change a particular undocumented alien's immigration status. Vaella’a v. Sunia, 1 A.S.R.3d 88 (Trial Div. 1997).

The governor's constitutional pardoning power is expressly limited to pardons, even if that term is broadly construed to include amnesty grants, bestowed after convictions for criminal offenses. Even when the governor properly applies his pardoning power, the grantee's immigration status must still be approved in compliance with the immigration laws of American Samoa. Vaella’a v. Sunia, 1 A.S.R.3d 134 (Trial Div. 1997).

The Governor is without authority to grant amnesty to undocumented aliens under his constitutional pardoning power or by other means. The governor can be empowered with that authority only by constitutional amendment or by legislative enactment. Vaella’a v. Sunia, 1 A.S.R.3d 134 (Trial Div. 1997).

The Governor is without authority to grant amnesty to undocumented aliens, who have not been convicted of any criminal offense related to their illegal presence in American Samoa, in the absence of an effective constitutional amendment or legislation authorizing the governor to grant amnesty to undocumented aliens. Vaella’a v. Sunia, 1 A.S.R.3d 134 (Trial Div. 1997).

§ 4(2) —Power and Authority

Powers of pardon and parole granted to executive by statutes and constitution do not give the executive carte blanche to ignore court orders and sentences. American Samoa Gov't v. Dole, 3 A.S.R.2d 63.

Release of prisoner within two weeks after court had sentenced him to a year of detention as condition of probation, whether called a furlough, work release, reward for good behavior, compassionate leave, or by another label, violated statutes and court order. American Samoa Gov't v. Dole, 3 A.S.R.2d 63.

Territorial government is bound by court orders in proceedings to which it is a party and should not issue legal opinions that counsel disobedience to such orders. American Samoa Gov't v. Satele, 7 A.S.R.2d 154.

Statute allowing court to impose detention as a condition of probation did not violate the constitutional provision allowing governor to grant pardons, since any prisoner pardoned by the governor could no longer be incarcerated. Rev. Const. Am. Samoa art. IV § 9; A.S.C.A. § 46.2206. Atuatasi v. Moaali`itele, 8 A.S.R.2d 53.

When it acts in a sovereign capacity, the government is generally not subject to estoppel. Atuatasi v. American Samoa Gov't, 9 A.S.R.2d 67.

Estoppel may be applied against the government if, in addition to other factors necessary to give rise to an estoppel, the government's wrongful conduct threatens to work a serious injustice, and the public interest would not be unduly damaged by the estoppel. Atuatasi v. American Samoa Gov't, 9 A.S.R.2d 67.

Order of deportation must be made by the Attorney General. A.S.C.A. § 41.0616. Rakhshan v. Immigration Board, 15 A.S.R.2d 29.

The executive branch has the statutory authority to preserve and administer government lands. Solomona v. Governor of American Samoa, 17 A.S.R.2d 186.

Inherent, executive authority exists to suspend an employee before his removal is effective under circumstances which would make continued performance of regular duties detrimental to the territorial government's interests; however, this action may not be arbitrary or capricious. A.S.C.A. § 7.0802; A.S.A.C. §§ 4.0801, 4.0802(e). Sala v. American Samoa Gov't, 21 A.S.R.2d 14.

If a serious condition exists, ASG may place plaintiff on annual leave, reassign him to duties in which the condition does not exist, place him on excused absence, or suspend him with or without pay pending removal, provided the action is taken in compliance with all applicable laws and rules and is based on substantive and documented justification. A.S.A.C. § 4.0802(e). Sala v. American Samoa Gov't, 21 A.S.R.2d 14.

When the government makes rules to govern the conduct of its affairs, it must abide by those rules and act within its authority. Sala v. American Samoa Gov't, 21 A.S.R.2d 14.

If done within the scope and by the apparent authority of a de jure public officer, a de facto public officer's acts are binding on third parties; it is as if the de facto public officer were legally selected, qualified and in possession of the office. Toilolo v. Poti, 24 A.S.R.2d 1.

In American Samoa, program managers are given some flexibility to deal with contingencies that were not anticipated during the regular budget development process but this flexibility must be dealt with prudently and in consideration of the policymakers' and the people's wishes. A.S.A.C. § 5.0134(b). The Senate v. Lutali, 27 A.S.R.2d 126.

The Executive Branch does not have authority to pay anything in excess of an appropriation without express language granting such action. The Senate v. Lutali, 27 A.S.R.2d 126.

The Executive Branch's power to fix employees' salaries is limited by the amount appropriated by the Legislature. The Senate v. Lutali, 27 A.S.R.2d 126.

If appropriated funds are available for payment of a particular vendor contract and are properly obligated under the procurement process before the end of the current fiscal year, the obligated funds will carry forward until the obligation is paid rather than revert to the general fund. Otherwise, the Executive Branch has no legal authority to disperse public funds to pay past due debts to vendors incurred in a prior fiscal year without a current fiscal year appropriation for such purposes and timely completion of the procurement process. A.S.A.C. § 5.0103(13)(A). The Senate v. Lutali, 27 A.S.R.2d 126.

The Revised Constitution and laws are clear that the Executive Branch 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. The Senate v. Lutali, 27 A.S.R.2d 126.

The American Samoa Government does not have a legal obligation to pay step increments to its employees for past fiscal years. A.S.C.A. § 7.1001. The Senate v. Lutali, 27 A.S.R.2d 126.

A contract entered into by a government official lacking authority, or failing to follow proper procedures, is void. Rakshan v. American Samoa Gov't, 28 A.S.R.2d 151.

The petitioner will fail the second prong of the test for issuing an alternative writ of mandamus unless he/she establishes that the duty of respondent is purely "ministerial." A duty is ministerial only if it is clearly proscribed and does not involve an exercise of judgment or discretion. Porter v. Registrar of Vital Statistics, 28 A.S.R.2d 175.

It is a violation of both constitutional and statutory provisions for the Governor to act as chief procurement officer. B.H.P. Petroleum South Pac., Inc. v. American Samoa Gov’t, 2 A.S.R.3d 10 (App. Div. 1998).

The governor has the powers, duties and responsibilities as delegated under A.S.C.A. § 4.0111 in addition to those powers conferred by article IV of the Revised Constitution of American Samoa, and the laws for which the governor is responsible for faithful execution of are established by the legislative branch. B.H.P. Petroleum South Pac., Inc. v. American Samoa Gov’t, 2 A.S.R.3d 10 (App. Div. 1998).

The governor does not possess the power to make appointments to public office unless it is expressly conferred by the constitution or statutes, and neither allows him to appoint himself as chief procurement officer. B.H.P. Petroleum South Pac., Inc. v. American Samoa Gov’t, 2 A.S.R.3d 10 (App. Div. 1998).

The general supervisory power over the executive department given to the governor by Article IV, section 7 of the Revised Constitution of American Samoa does not include the power of appointment. B.H.P. Petroleum South Pac., Inc. v. American Samoa Gov’t, 2 A.S.R.3d 10 (App. Div. 1998).

Article IV, section 11 of the Revised Constitution of American Samoa gives the governor specifically limited power to appoint officials who are not otherwise provided for, and the chief procurement officer is otherwise provided for. B.H.P. Petroleum South Pac., Inc. v. American Samoa Gov’t, 2 A.S.R.3d 10 (App. Div. 1998).

Under A.S.C.A. § 12.0213, the Governor has the power to make procurements himself only in an emergency as defined under A.S.C.A. 26.0105(d), and such procurement must be as competitive as possible and be accompanied by a written determination of the basis for the emergency. B.H.P. Petroleum South Pac., Inc. v. American Samoa Gov’t, 2 A.S.R.3d 10 (App. Div. 1998).

Under Rev. Const. Am. Samoa art. IV § 12, the Governor may not unilaterally expand the power of appointment granted to him by constitutional and statutory provisions, and is not at liberty to ignore or suspend the operation of such statutes. B.H.P. Petroleum South Pac., Inc. v. American Samoa Gov’t, 2 A.S.R.3d 10 (App. Div. 1998).

Confirmation of appointments made by the Governor is not an inherent legislative power; it is a specific attribute of the executive power of appointment which, in most cases, is constitutionally delegated to the legislative branch. House of Representatives of American Samoa v. Sunia, 3 A.S.R.3d 123 (Trial Div. 1999).

The Appropriations clause of the U.S. Constitution was intended as a restriction on the disbursing authority of the Executive department. Nua v. Sunia, 4 A.S.R.3d 208 (Trial Div. 2000).

Under the Revised Constitution of American Samoa, the executive branch’s role in the appropriations process is limited to preparation of the preliminary budget plans. Nua v. Sunia, 4 A.S.R.3d 208 (Trial Div. 2000).

A.S.C.A. § 37.2010 does not provide the Executive branch with unfettered discretion to spend public funds on the government’s behalf. Nua v. Sunia, 4 A.S.R.3d 208 (Trial Div. 2000).

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. Nua v. Sunia, 4 A.S.R.3d 208 (Trial Div. 2000).

The Revised Constitution and laws of American Samoa are silent as to whether the Executive Branch may form public corporations. Nua v. Sunia, 4 A.S.R.3d 208 (Trial Div. 2000).

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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

The statute creating a state agency or state office may authorize, expressly or implicitly, engagement of counsel other than Attorney General. RDL., Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 101 (Trial Div. 2002).

§ 4(3) —Agencies

In order for a government subdivision to be a separate entity capable of suing or being sued in its own name, such status must bestow by statute or constitution. Aga v. American Samoa Gov't, 3 A.S.R.2d 130.

Administrative board, given statutory authority to advise agency and to perform such duties as governor assigns, had no authority to issue binding personnel decisions absent explicit grant, especially when Code sets forth hiring and termination procedures that do not involve board. Banks v. American Samoa Gov't, 4 A.S.R.2d 113.

Under territorial statutes providing that the registrar should not record any instrument appearing to be illegal, but that any person aggrieved by any official action of the register could apply to the court "at any time" for direction or redress, a lessor would not prevail in an action for eviction based on non-recordation of a lease where (1) the lease was initially recorded by the registrar's office; (2) an acting registrar later attempted retroactively to reject the lease, citing certain alleged illegalities; (3) upon trial of the eviction action, defendant invoked its right to judicial review of the registrar's action and the court found that the lease was not illegal and was therefore properly accepted for recordation. A.S.C.A. §§ 4.1104, 4.1106. American Samoa Government v. Samoa Aviation, Inc., 11 A.S.R.2d 144.

Assuming that deputy territorial registrar had the power to cancel the prior recordation of a lease had there been something genuinely wrong with it, an aggrieved party would have the right at any time to apply to the court for direction or redress, and the aggrieved party could exercise such right by alleging and proving in an action for eviction that the substantive bases for the cancellation were without merit. A.S.C.A. § 4.1106. American Samoa Government v. Samoa Aviation, Inc. (Mem), 13 A.S.R.2d 65.

For purposes of 12 U.S.C. § 3407, the American Samoa Government is not a federal agency. American Samoa Gov't v. Leiataua, 27 A.S.R.2d 26.

The office of the Speaker is an agency of government within the meaning of A.S.C.A. § 2.0602, and the Speaker therefore has a plain duty to cooperate with the Legislative Financial Officer by opening records to the Legislative Financial Officer within normal working hours and times. Lutu v. Ale, 28 A.S.R.2d 43.

The Director of Manpower Resources, not the Governor, has the statutory authority to administer the personnel laws of American Samoa. Rakshan v. American Samoa Gov't, 28 A.S.R.2d 151.

Although the ASG’s Parks and Recreation Commission is a statutory agency of the ASG's Executive Branch, it is not a “commission . . . authorized by law to make rules or to determine contested cases." A.S.C.A. § 4.1001(a). Congressional Church of Jesus in Samoa v. A.S.G., 31 A.S.R.2d 122.

This court functions to ensure that the executive branch respects a party’s substantive due process rights by determining whether decisions of the governor and his executive agencies were arbitrary and capricious, pretextual, or without a rational basis. Congressional Church of Jesus in Samoa v. A.S.G., 31 A.S.R.2d 122.

The Attorney General is charged with the administration and enforcement of the immigration laws except insofar as such laws relate to the powers, functions, and duties of the Immigration Board. Vaella’a v. Sunia, 1 A.S.R.3d 88 (Trial Div. 1997).

Attorney General, as head of Department head of Legal Affairs Department and Chief Immigration Officer, as division head of Immigration Office, are responsible for ensuring that subordinates comply with Court’s order. Vaela’a v. Sunia, 1 A.S.R.3d 131 (Trial Div. 1997).

A department head’s, or division head’s, failure to provide full and accurate instructions to subordinates regarding a Court order, where such Court order has direct consequences on the jobs performed by such subordinates, constitutes inexcusable neglect. Vaela’a v. Sunia, 1 A.S.R.3d 131 (Trial Div. 1997).

Where Attorney General and Acting Chief Immigration Officer gave imprecise instructions, resulting in subordinate issuing verifications of immigration status in violation of Court’s injunction, the failure to give specific instructions constituted inexcusable neglect and could be punished as contempt. Vaela’a v. Sunia, 1 A.S.R.3d 131 (Trial Div. 1997).

Even assuming the Attorney General has general authority to make original decisions on the immigration issues listed in A.S.C.A. § 41.0303, the Immigration Board remains ultimately responsible under A.S.C.A. § 41.0205(1) for the attorney general's decisions in these matters. Vaella’a v. Sunia, 1 A.S.R.3d 134 (Trial Div. 1997).

The Immigration Board does not lose either its authority to make or responsibility for consummated decisions to grant first authorizations to remain simply by delegating any such power to the attorney general. Vaella’a v. Sunia, 1 A.S.R.3d 134 (Trial Div. 1997).

Under the provisions of the Revised Constitution of American Samoa, art. IV, § 4, the Secretary of Samoan Affairs is appointed by the Governor, serves at his pleasure, and there is no confirmation role for the Legislature which would limit these powers. House of Representatives of American Samoa v. Sunia, 3 A.S.R.3d 123 (Trial Div. 1999).

The Legislature may not usurp the power of confirmation, and as the Revised Constitution of American Samoa makes no provision for legislative confirmation of gubernatorial appointments to the office of Secretary of Samoan Affairs, that power is attached to the executive power of appointment and is vested solely in the Governor. House of Representatives of American Samoa v. Sunia, 3 A.S.R.3d 123 (Trial Div. 1999).

Because A.S.C.A. § 4.0112, on its face and without constitutional authorization, offers the Legislature, by its confirmation provisions, a critical means of severely limiting the executive power of appointment, it is unconstitutional to the extent that it applies to the Secretary of Samoan Affairs. House of Representatives of American Samoa v. Sunia, 3 A.S.R.3d 123 (Trial Div. 1999).

A public agency’s invitation for bids is regarded as a request for offers and no contractual rights arise prior to its acceptance by the agency. Samoa Dev., Inc. v. Am. Samoa Power Auth., 5 A.S.R.3d 172 (Trial Div. 2001).

In public contracts, the bid is the offer, and a contract comes into being upon acceptance by the governmental agency. Samoa Dev., Inc. v. Am. Samoa Power Auth., 5 A.S.R.3d 172 (Trial Div. 2001).

Courts will respect statutory language requiring formal execution of a contract in order for contract rights and obligations to vest. Samoa Dev., Inc. v. Am. Samoa Power Auth., 5 A.S.R.3d 172 (Trial Div. 2001).

Where arbitrary action or fraudulent intent to injure a complaining party is indicated, courts may interfere with an agency’s power to rescind its award. Samoa Dev., Inc. v. Am. Samoa Power Auth., 5 A.S.R.3d 172 (Trial Div. 2001).

Where circumstances indicated that backroom negotiations had taken place between government agency and second-lowest bidder that was awarded contract after award rescinded, court would not honor clause shielding agency from liability as it had clearly employed clause arbitrarily and acted in bad faith. Samoa Dev., Inc. v. Am. Samoa Power Auth., 5 A.S.R.3d 172 (Trial Div. 2001).

Where public agency granted contractor an extension for filing its bond, but did not clearly specify the length of such extension, court would consider agency’s custom of flexibility in determining the limits of the extension. Samoa Dev., Inc. v. Am. Samoa Power Auth., 5 A.S.R.3d 172 (Trial Div. 2001).

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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

Administrative agencies are statutory creations and must adhere strictly to the statutes for their authority. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

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.L.J. 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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

Review of a final administrative decision for errors of law is a matter ordinarily within the exclusive jurisdiction of the Appellate Division of the High Court. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 91 (Trial Div. 2002).

The American Samoa Community College has the power and responsibility to sue and be sued. RDL., Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 101 (Trial Div. 2002).

The American Samoa Community College has the power to enter into contracts. RDL., Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 101 (Trial Div. 2002).

Governmental agencies are not directly forbidden from employing attorneys other than the Attorney General, and the Attorney General is not anointed as the only option the government has for legal counsel. RDL., Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 101 (Trial Div. 2002).

The statute creating the American Samoa College implies the power to hire outside counsel. RDL., Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 101 (Trial Div. 2002).

§ 5 The Judiciary

§ 5(1) — Power and Authority

SEE CIVIL PROCEDURE § 1 – JURISDICTION

High Court is a court of equity as well as law. Jewett v. McMoore, 1 A.S.R. 611.

Authority of Secretary of Native Affairs over conduct of magistrates and judges of lower courts is ministerial and not judicial, and interpretation of law by such executive officer is not binding upon High Court. Toomata v. Railey, 1 A.S.R. 623.

At conclusion of case, court may make oral decision and is not obliged to render written decision absent request by one of the parties. Dwyer v. McDonald, 1 A.S.R. 652.

Fact decision is unsigned by Judge does not indicate that it is not order of court. Simaile v. Lafoa’i, 2 A.S.R. 170.

A purported decision of the High Court, not signed by judge rendering same has no value as precedent. Atoa v. Meredith, 3 A.S.R. 159.

Court cannot declare one senatorial candidate victor over another, since it lacks jurisdiction to so do, such being the exclusive province of senate. A.S. Const. Art. II, § 22. Meredith v. Mola, 4 A.S.R. 773.

Since A.S. Const. Art. II, § 22 reserves right to legislature to judge qualifications of “members,” court will not interfere and decide challenge to election of senator once he has been sworn in as member. 11 A.S.C. § 6671. Tuitasi v. Lualemaga, 4 A.S.R. 798.

Judicial power is vested in High Court, District Courts and such other courts as created by law, and judicial branch is independent of legislative and executive. (Const. Art. III, Sec. 1 and 2.) Fanene v. Government, 4 A.S.R. 957.

The courts of American Samoa are “legislative” rather than “constitutional” courts and are subject to the mandate of Congress or its delegatee, the President, or his delegatee, the Secretary of Interior. Rev. Const. Am. Samoa, Art. III, § 1; Art. II, § 1; Art. IV, § 2. Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983.

The High Court is a territorial court duly constituted under Article IV of the U.S. Constitution. In re M/V Pearl, 2 A.S.R.2d 76 (App. Div. 1986).

The High Court can exercise at least some authority not specially granted it by Congress. In re M/V Pearl, 2 A.S.R.2d 76 (App. Div. 1986).

Visit by one member of court to land that was the subject of litigation, and subsequent report of that judge to other judges, did not constitute impermissible "testimony" by the judge when both counsel had been present at the viewing of the land and no objection had been made. Vaimaona v. Paleafei, 3 A.S.R.2d 92.

Territorial statute giving court power to suspend procedural rules that would lead to inequitable result does not give court power to suspend rules of substantive law. A.S.C.A. § 3.0242. Ape v. Puagele, 3 A.S.R.2d 109.

Statute prescribing participation in matai title dispute of one law-trained judge, as well as four associate judges who are not lawyers but who are chosen for their familiarity with Samoan custom, did not require that the law-trained judge be present during all deliberations of the associate judges. A.S.C.A. § 3.0240. In re Matai Title La'apui, 4 A.S.R.2d 7.

When court is considering the application of judge-made rules rather than legislation or a constitution, it has the duty to consider whether changed circumstances warrant modification of such rules. Monte Kaho v. Ron Pritchard Ground Services, Inc., 4 A.S.R.2d 40.

When a rule of law has been adopted in an overwhelming majority of the jurisdictions with which forum state has contact, the rule may give rise to changed customs and usages within forum. Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 59.

Territorial statute permitting court to subordinate rules of "practice or procedure" to exigencies of justice and convenience does not give the court power to overturn a final judgment in the absence of new evidence, fraud, surprise, or similar circumstances, since res judicata is a rule of substantive law and not of procedure. A.S.C.A. § 3.0242(b); T.C.R.C.P. Rule 60. Willis v. Willis, 4 A.S.R.2d 144.

Territorial courts are established not under Article III of the Constitution, but by Congress pursuant to the general legislative powers granted by article I and the power granted by article IV to make rules and regulations for the territories. U.S. Const. arts. I, III, IV. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

The High Court of American Samoa exercises judicial power that can be divested only by an Act of Congress. 48 U.S.C. § 1662a; Rev. Const. Am. Samoa art. III § 1. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

The "judicial jurisdiction of the United States" extends to American Samoa. 11 U.S.C. § 101(49). Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

Territorial court is not bound to interpret local rules in strict conformity with federal courts' interpretations of parallel federal rules. Wray v. Wray, 5 A.S.R.2d 34.

Trial court rule that written judgment contain separately stated findings of fact and conclusions of law does not require inflexible format of segregated, numbered, and labeled entries. T.C.R.C.P. Rule 52. Development Bank v. Ilalio, 5 A.S.R.2d 110.

Territorial court would defer as a matter of comity or full faith and credit to the lawful orders of a court of the United States properly exercising its jurisdiction even if there were no federal statute requiring it to do so. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 6 A.S.R.2d 62.

A strong presumption of validity attaches to an order of the High Court signed by a Justice thereof. Satele v. Uiagalelei, 6 A.S.R.2d 143.

Unlike federal rules of criminal procedure promulgated under the authority of Congress and binding on federal courts to the same extent as statutes, territorial rules are made by the Court itself, so that a time limit provided by territorial rule is not as obviously jurisdictional as a similar limit provided by federal rule. Rev'd Const. Am. Samoa art. III § 2; A.S.C.A. § 3.1002(c). American Samoa Gov't v. Tile, 8 A.S.R.2d 120.

Statute explicitly recognizing power of Chief Justice to make exceptions to rules is clearly not inconsistent with constitutional provision for judicial independence. Rev'd Const. Am. Samoa art. III § 2; A.S.C.A. § 46.0501. American Samoa Gov't v. Tile, 8 A.S.R.2d 120.

Reasonable legislative regulation of judicial procedure does not necessarily conflict with judicial independence. Rev'd Const. Am. Samoa art. III § 2; A.S.C.A. § 46.0501. American Samoa Gov't v. Tile, 8 A.S.R.2d 120.

Even if court has authority to disregard or make exceptions to its own rules, it would be imprudent to make such exceptions on an ad hoc basis in order to reach the desired result in a particular case. American Samoa Gov't v. Tile, 8 A.S.R.2d 120.

The court is bound by statute and treaty to recognize freehold grants made by the Land Commission of Samoa, which operated in Apia under the supervision of the then-Supreme Court of Samoa, prior to the United States-established government. Willis v. Fai`ivae, 17 A.S.R.2d 38.

The Court may correct an illegal sentence at any time. T.C.R.Cr.P. 35. American Samoa Gov't v. Falefatu, 17 A.S.R.2d 114.

Because the High Court's rules were promulgated solely on its own authority, they must give way to territorial statutes defining the court's jurisdiction, unless the statutes themselves are unconstitutional. American Samoa Gov't v. Falefatu, 17 A.S.R.2d 114.

In imposing conditions of probation, the sentencing judge is well-situated to know whether a particular offender needs to be insulated from his past environment, his associates, his victim, or those who assisted in his prosecution, as well as the best methods to assure such insulation. American Samoa Government v. Falefatu, 17 A.S.R.2d 114.

The High Court refused to approve parties' stipulation to lift a stay of an action in federal district court when no such stay was issued because of the lack of statutory authority to do so. Fa'atasiga v. M/V Ocean Pearl, 19 A.S.R.2d 59.

The Chief Justice's rulemaking authority under A.S.C.A. § 46.0501 does not include the power to amend unambiguous legislative enactments setting out the prerequisites to appeal. Fa'amaoni v. American Samoa Government, 20 A.S.R.2d 127.

A court may compel specific performance of a partially performed, unwritten agreement; the court's power to compel specific performance is expressly recognized in the statute of frauds relating to land transactions. A.S.C.A. § 37.0211. Manoa v. Jennings, 21 A.S.R.2d 23.

The High Court looks to the Federal Rules of Civil Procedure for guidance and must conform to them as closely as practicable. A.S.C.A. § 43.0201(a). Crispin v. American Samoa Gov't, 21 A.S.R.2d 60.

Though the Immigration Board's documents are confidential by statute, this statute may not be used to deny constitutionally guaranteed due-process rights, nor does it prohibit the Court from ordering the Attorney General to produce these records when needed. U.S. Constitution Amend. V; Rev. Const. Am. Samoa Art. I, § 2; A.S.C.A. § 41.0307. Farapo v. American Samoa Gov't, 23 A.S.R.2d 136.

The district court is authorized to issue process, and an arrest warrant is a form of process. A.S.C.A. § 3.0304, T.C.R.Cr.P. 4(c)(1). American Samoa Gov't v. Tagaloa, 24 A.S.R.2d 37.

The High Court possesses the statutory authority to issue an injunction if it deems money damages to be an inadequate remedy; as such, it may order a special shareholders' meeting if a board of directors, though lacking any discretion in the matter, fails to call a meeting. A.S.C.A. § 43.1302. Lutali v. Foster, 24 A.S.R.2d 39.

The rules of civil procedure do not limit a court's power to (1) entertain an independent action for relief from a judgment, order, or proceeding, or (2) set aside a judgment for fraud upon the court. Fed. R. Civ. P. 60(b); T.C.R.C.P. 60(b). Rocha v. Rocha, 24 A.S.R.2d 55.

A single justice has the authority to issue an alternative writ, schedule a hearing, and set a briefing schedule; however, resolution of substantive issues, other than in connection with any preliminary or supplementary matter, requires a quorum of two justices and one associate judge. A.S.C.A. §§ 3.0209, 3.0220. In re Complaint of Voyager, Inc., 24 A.S.R.2d 90.

A court may dispose of an entire controversy by granting both equitable relief and damages, in order to avoid a multiplicity of lawsuits. Thompson v. Toluao, 24 A.S.R.2d 127.

The High Court of American Samoa is empowered to enforce a judgment of any United States court or other court entitled to full faith and credit in American Samoa under the Uniform Enforcement of Foreign Judgments Act. A.S.C.A. §§ 43.1701‑09. DeStael v. Strasburg, 25 A.S.R.2d 96.

The High Court of American Samoa is not a federal court. American Samoa Gov't v. Leiataua, 27 A.S.R.2d 26.

If a majority of the four associate judges make a decision, the justice need not participate in the four associate judges' deliberations. In Re Matai Title "Tuaolo", 28 A.S.R.2d 137.

The western style court system delivers clearly identifiable winners and losers by providing decisive final decisions and orders that are legally binding and enforceable by the collective force of the community. Litigants who cannot win family support for their views, and decide instead to take their chances in court, should be aware that their interpretations of custom may not be persuasive to the court either. Fanene v. Fanene, 30 A.S.R.2d 115.

The High Court is not bound to accept the definition of misapplication of funds expounded by the federal courts. In fact, federal courts have used varying definitions for misappropriation of funds. American Samoa Gov’t v. Leiataua, 30 A.S.R.2d 130.

From the face of the statute, the court does not appear to have discretion in ordering forfeiture of bail if a condition of the bond is violated. T.C.R.Cr.P. 46(e)(1). American Samoa Gov’t v. Togialeoli, 30 A.S.R.2d 130.

The court may, on its own motion, clarify its discussion in an opinion and order. Mailo v. Aumavae, 31 A.S.R.2d 6.

The fact that the trial court judge, during in-chambers conference, remarked that if appellant were found guilty, he would be held in custody pending sentencing did not constitute a threat that the judge would penalize appellant for exercising his right to a jury trial. Pule v. American Samoa Gov’t, 1 A.S.R.3d 7 (App. Div. 1997).

One of the inherent powers of a trial court is the power to dismiss a case for want of prosecution. American Samoa Gov’t v. Lavata’i, 1 A.S.R.3d 164 (Trial Div. 1997).

The court has discretion to dismiss cases where the plaintiff is guilty of neglect, even in the absence of statute or rule regarding diligent prosecution, because the court has a right and duty to keep the judicial system in efficient operation. American Samoa Gov’t v. Lavata’i, 1 A.S.R.3d 164 (Trial Div. 1997).

Under Article III of the Revised Constitution of American Samoa (R.C.A.S.) judicial power is vested in the High Court, District Court and other courts established by law as an independent branch of government, with the Chief Justice and Associate Justices appointed by the U.S. Secretary of the Interior. Saunoa v. Suafa’i, 3 A.S.R.3d 3 (App. Div. 1999).

A.S.C.A. §§ 83.0101-.0103 provides for the administration of the independent judicial branch by the Chief Justice, and specifies generally the jurisdiction of the courts. Saunoa v. Suafa’i, 3 A.S.R.3d 3 (App. Div. 1999).

Both under the authority of T.C.R.C.P. 41(b) and through its inherent powers, a court may dismiss a case for lack of prosecution. Estate of Pua`auli v. LBJ Tropical Medical Center, 4 A.S.R.3d 103 (Trial Div. 2000).

Judicial power in American Samoa, like the United States, is limited review of presently pending cases or controversies. Island’s Choice, Inc. v. American Samoa Gov't, 5 A.S.R.3d 3 (App. Div. 2001).

Judicial review of administrative action is limited by the requirement that there be an actual, live controversy to adjudicate. Island’s Choice, Inc. v. American Samoa Gov't, 5 A.S.R.3d 3 (App. Div. 2001).

Judicial powers can only be exercised by the Judicial Branch of the American Samoa Government under the Revised Constitution of American Samoa. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

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. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

The High Court has the power to interpret the constitutional provisions governing the exclusion and expulsion of Senators, and whether the Senate’s actions conformed to its constitutionally mandated powers. Fa`amausili v. Am. Samoa Gov’t, 6 A.S.R.3d 259 (Trial Div. 2002).

If the powers of any branch of the government, and even those of the Legislature in the enactment of laws, have not been exercised in conformity to the Constitution, the Court can properly treat such acts as null and void. Fa`amausili v. Am. Samoa Gov’t, 6 A.S.R.3d 259 (Trial Div. 2002).

Normally, the courts must refrain from prying into matters that admit of legislative adjudication rather than judicial resolution, such as disputes dealing solely with internal legislative rules or functions. Muavaefa’atasi v. House of Representatives, 7 A.S.R.3d 117 (Trial Div. 2003).

The court has an obligation, however, to review governmental actions or laws that conflict with, or-are limited by, constitutional provisions. Muavaefa’atasi v. House of Representatives, 7 A.S.R.3d 117 (Trial Div. 2003).

§ 5(2) —Administration of Court

Governor is authorized to appoint temporary Chief Justice in case of disability, disqualification or absence of Chief Justice. (CAS 168.) Scanlan v. Steffany, 3 A.S.R. 583.

Actual payment of estimated transcript cost coupled with timely request for cost of transcript (although no formal order for transcript) is sufficient to satisfy Rule 55(2) requiring transcript order. 11 A.S.C. 5122(3). In re Matai Title Alalamua, 4 A.S.R. 974.

If counsel is dissatisfied with the interpreter's English translation of a witness's Samoan testimony, his remedy is to object immediately so that any error can be corrected or to ask the witness any questions that may be necessary to eliminate ambiguities in the official record, which is kept in English. Lea'e v. Lea'e (Mem.), 3 A.S.R.2d 56.

Associate Judges of the High Court of American Samoa, who speak both Samoan and English, may correct any inaccuracies they detect in the translation of Samoan testimony into English as soon as such inaccuracies occur. Lea'e v. Lea'e (Mem.), 3 A.S.R.2d 56.

The post-trial and appellate stages of a proceeding, which with a few extraordinary exceptions must be based upon the record made at trial, are not the appropriate forum for counsel to request corrections of English translation of Samoan testimony. Lea'e v. Lea'e (Mem.), 3 A.S.R.2d 56.

Courts of Samoa follow the Federal Rules of Civil Procedure as closely as practical. (CAS 251.) Lualemana v. Magalei, 4 A.S.R. 849.

Criminal procedure in courts of American Samoa shall conform as nearly as may be practical to the Federal Rules of Criminal Procedure. (CAS 3.0606.) Fanene v. Government, 4 A.S.R. 957.

To hold a trial only a few minutes after the filing of the answer, over the objection of a party or under equivalent circumstances would be fundamentally unfair. Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20.

High Court opinions between 1978 and 1986 were reported only if they established or altered a rule of law, criticized existing law, or, in the Justices' opinion, "involve[d] a legal issue of continuing public interest." Saufo`i v. American Samoa Gov't, 16 A.S.R.2d 71.

A court reporter is to produce a transcript within a thirty days after receiving an order for it. A.C.R. 11(b). Rocha v. Rocha, 17 A.S.R.2d 15.

Statute providing that the High Court shall have interpreters deals with the method of appointing permanent court employees and does not require Court to find, employ, and compensate special ad hoc officers whenever a litigant demands an interpreter. Kim v. American Samoa Government, 17 A.S.R.2d 193.

When the High Court dismisses cases for want of diligent prosecution, civil actions will be dismissed with prejudice if good cause is not shown to the contrary, but land-and-titles actions will be dismissed without prejudice. Jennings v. Jennings, 19 A.S.R.2d 34.

A damage award to a minor shall be deposited directly into the depositary of the High Court of American Samoa and placed in an interest-bearing account with the minor as beneficiary; disbursements are to be made only on application by the guardian ad litem and with the approval of one of the Justices. Sciascia v. Lutali, 23 A.S.R.2d 38.

Although a defendant is not to be prejudiced because of his indigent circumstances, he is not entitled to a transcript as of right simply upon demand. American Samoa Government v. Suiaunoa, 24 A.S.R.2d 161.

Reasonable costs may be required of litigants. Because litigation costs are borne not only by a plaintiff but also by defendants, taxpayers, and parties in other lawsuits (which may be delayed or receive less attention), even a small filing fee helps a plaintiff to think about the merits of his case. An indigent plaintiff may even be required to pay a partial filing fee. Mckenzie v. Tuimavave, 26 A.S.R.2d 13.

A litigant desiring to proceed in forma pauperis must submit a sworn affidavit supporting his motion. The affidavit is to specifically detail the reasons for the alleged inability to pay court fees and must enumerate all sources of funds. Mckenzie v. Tuimavave, 26 A.S.R.2d 13.

Proceeding in forma pauperis is undeniably a privilege and not a right; therefore, permission to do so is at the court's discretion. McKenzie v. Tuimavave, 26 A.S.R.2d 13.

General statements are insufficient to make the required showing that plaintiff has necessary expenditures which would preclude his paying the filing fee. Mckenzie v. Tuimavave, 26 A.S.R.2d 13.

A receiver is a ministerial officer, agent, creature, hand, or arm of, and a temporary occupant and caretaker of the property for the court, and represents the appointing court, and is the medium through which the court acts. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

One of the inherent powers of a trial court is the power to dismiss a case for want of prosecution. A.S.G. v. Lavata`i, 31 A.S.R.2d 191.

Trial court has wide latitude and discretion in supervising the time limits, scope, and the extent of argument and summation. Rulings on such issues are subject to review for abuse of discretion. Pule v. American Samoa Gov’t, 1 A.S.R.3d 7 (App. Div. 1997).

A court, as a separate department of government, may create a trust, transfer property to the trust, and appoint a trustee to take care of trust property for the best interest of the beneficiaries under its inherent power to do what is reasonably necessary for the proper administration of justice and where the exercise of such power is absolutely essential for the performance of the court's constitutionally mandated mission. Bendall v. Samoa Aviation, Inc., 1 A.S.R.3d 16 (App. Div. 1997).

Under A.S.C.A. § 3.1006, in the event of inadequate numbers of associate judges to sit at trial or on appeal, the Chief Justice may appoint temporary associate judges from a panel of persons recommended by the Chief Justice, found qualified by the Governor, and confirmed by the Senate. Saunoa v. Suafa’i, 3 A.S.R.3d 3 (App. Div. 1999).

§ 5(3) —Disqualification – Recusal

Judge should disqualify himself from trying case even though he is entirely free of bias if circumstances have arisen which give bona fide appearance of bias, such as distant relationship to one of parties. Sauafea v. Filipo, 2 A.S.R. 477.

Application to disqualify judge should be filed prior to trial and alleged bias of judge is not timely raised on appeal. Iosia v. Heirs of Lemeanai Family, 3 A.S.R. 482.

Statute (Sec. 172-1952 Amendments) disqualifies judge if he is or has been a material witness, not if he is a mere potential witness. Iosia v. Heirs of Lemeanai Family, 3 A.S.R. 482.

Evidence fails to support that judge was related to one of parties, and any relation based on marriage would have been terminated by divorce. Betham v. Faumuina, 3 A.S.R. 537.

Application to disqualify judge should be filed at earliest opportunity and in case of appeal, immediately after notice of appeal. Scanlan v. Steffany, 3 A.S.R. 583.

Grounds for disqualification of judges must be affirmatively shown in a timely fashion in order to provide an appealable issue. In re Matai Title “Tuiolesega,” 1 A.S.R.2d 37 (Land & Titles Div. 1980).

Motion for disqualification of judge which was apparently an attempt at "judge shopping" should be denied. Pene v. American Samoa Power Authority, 10 A.S.R.2d 23.

Trial judge who, in denying summary judgment against pro se litigant in a previous case, had quoted authority to the effect that summary judgment was not the appropriate remedy for incoherent and unskillful pleadings, did not thereby malign the litigant's person and did not create ground for recusal in subsequent cases involving the same litigant. Pene v. American Samoa Power Authority, 10 A.S.R.2d 23.

Judge has as much obligation not to recuse himself when there is no occasion for recusal as he has to recuse himself when there is such occasion. Pene v. American Samoa Power Authority, 10 A.S.R.2d 23.

When an Associate Judge of the High Court made a comment during trial that a party had obstructed the installation of a chief who was a cousin of the judge's wife, this relationship was too attenuated and the incident too peripheral to require disqualification of that judge. In re Matai Title Tauala, 15 A.S.R.2d 65.

Waiting until after a trial to move for a judge's disqualification is highly improper; doing so constitutes a waiver of the objection. In re Matai Title Tauala, 15 A.S.R.2d 65.

Mere fact that a judge asked questions which pointed out flaws in counsel's position or is related to a family that serves one of the parties in the case does not mean he is biased or prejudiced against a particular party. Uiagalelei v. Ulufale, 17 A.S.R.2d 158.

Because of the interest in the finality of judgments, "fraud on the court" (1) is typically confined to the most egregious cases, such as an attorney's exerting improper influence on the court or the bribery of a judge or juror, in which the integrity and impartial functioning of the court is directly impinged; and (2) must be proven by "clear and convincing evidence." Rocha v. Rocha, 24 A.S.R.2d 55.

The words of A.S.C.A. § 3.1007(a) "a case in which he ... has a substantial interest" not only mean that such a judge is actually biased in the case at issue, but also that such an interest may appear to exist. A lack of the legitimate appearance of impartiality is as threatening to smooth judicial functioning here as elsewhere. Jessop v. Histake, 25 A.S.R.2d 12.

Antagonistic questions do not necessarily indicate improper judicial bias. Mulitauaopele v. Mulitauaopele, 25 A.S.R.2d 43.

The fact that an associate judge who heard a case at trial also heard the case on appeal, a violation of A.S.C.A. § 3.1007(b), was not a basis for reconsideration of the appeal where a quorum existed without the violating judge, the violating judge's vote was not outcome determinative, the decision of the court was unanimous, and the complaining party waited until after the decision was rendered to object. Soli Corp. v. Amerika Samoa Bank, 25 A.S.R.2d 94.

If a party fails to object to the presence of an associate judge on the appellate panel until after the decision has been rendered, this failure constitutes a waiver of the objection. Soli Corp. v. Amerika Samoa Bank, 25 A.S.R.2d 94.

The words of A.S.C.A. § 3.1007(a) "a case in which he ... has a substantial interest" not only mean that such a judge is actually biased in the case at issue, but also that such an interest may appear to exist. A lack of the legitimate appearance of impartiality is as threatening to smooth judicial functioning here as elsewhere. In re Matai Title "Faumuina", 26 A.S.R.2d 1.

Recusal should never be undertaken lightly, but there are certain instances in which recusal is proper. In re Matai Title "Faumuina", 26 A.S.R.2d 1.

The standard of review applied to a courts denial of a request for recusal is, in accordance with A.S.C.A. § 43.0801(b), "clearly erroneous." In re Matai Title "Faumuina", 26 A.S.R.2d 1.

Recusal is appropriate when an appointing governor appears in his capacity as an individual citizen before an appointee judge. In re Matai Title "Faumuina", 26 A.S.R.2d 1.

A judge has an obligation not to recuse himself or herself unless there is a need to do so. In re Matai Title "Faumuina", 26 A.S.R.2d 1.

There is a duty of recusal incumbent on an associate judge who finds himself or herself assigned to a case in which a governor who appointed the judge appears in his or her personal capacity. In re Matai Title "Faumuina", 26 A.S.R.2d 1.

A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such person is a party to the proceeding, or an officer, director, or trustee of the party. Canon of Judicial Conduct 3(C)(1)(d)(i). Atlantic, Pacific, Marine, Inc. v. Clarke, 31 A.S.R.2d 156.

A judge disqualified may, instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification. If based on such disclosure, the parties and lawyers may agree in writing that the judge is no longer disqualified, and may participate in the proceeding. However, the parties and lawyers must make such determine independently of the judge’s participation and in writing. Canon of Judicial Conduct 3(D). Atlantic, Pacific, Marine, Inc. v. Clarke, 31 A.S.R.2d 156.

Failure to file a formal, written motion to disqualify constitutes a waiver on the issue of a judge’s impartiality. Tuaolo v. Fruean, 1 A.S.R.3d 33 (App. Div. 1997).

A judge’s impartiality is a pre-trial issue. Motions to disqualify judges made after trial are improper and untimely. Tuaolo v. Fruean, 1 A.S.R.3d 33 (App. Div. 1997).

Under the “Rule of Necessity,” an interested judge is required to sit on a matter where it otherwise would not be heard. Tuaolo v. Fruean, 1 A.S.R.3d 33 (App. Div. 1997).

The “Rule of Necessity” requires judges to sit even when where they otherwise would be required to recuse themselves sua sponte. Tuaolo v. Fruean, 1 A.S.R.3d 33 (App. Div. 1997).

The “Rule of Necessity” is properly invoked where there is no evidence to suggest that sufficient replacement judges are available. Tuaolo v. Fruean, 1 A.S.R.3d 33 (App. Div. 1997).

The mere fact that a Justice presides over a similar matter involving the same party, does not in itself create bias or prejudice against the litigant. Fuavai v. District Court, 2 A.S.R.3d 56 (App. Div. 1998).

Absent special circumstances, the general rule is that a judge who presided at the trial of a case which was reversed and remanded on appeal is not automatically disqualified to retry the case. Saunoa v. Suafa’i, 3 A.S.R.3d 3 (App. Div. 1999).

This Territory has no statutory or constitutional prohibitions against the same judges retrying cases and controversies upon remand from the appellate division. Saunoa v. Suafa’i, 3 A.S.R.3d 3 (App. Div. 1999).

Under A.S.C.A. § 3.1007, no judge or justice may sit on the appellate division and determine an appeal from a decision in which that judge or justice made or joined in at the trial court. Saunoa v. Suafa’i, 3 A.S.R.3d 3 (App. Div. 1999).

Under A.S.C.A. § 3.1007, a judge has a duty not to recuse himself unless there is a need to do so is, and this duty is not overridden where the alleged family ties of the judge are too tenuous, and where no circumstances indicate that the judge’s family members have a personal or financial interest in the outcome of the case. Alleged relationships which are too distant to support even an inference of the appearance of impartiality include a half-sister who is related to an extended family to which a party belongs, and a wife who may be a first cousin by marriage to a party’s step-father. Saunoa v. Suafa’i, 3 A.S.R.3d 3 (App. Div. 1999).

The ancient common law Rule of Necessity which requires the adjudication of a controversy by a judge who is, by statute, canon, or other direct interest, disqualified from hearing that matter when no provision is made for calling in another judge or no other judge can take the disqualified judge’s place need not be applied where it is determined that judges who participate in a retrial were not, ipso facto, disqualified from sitting because of their participation in the first trial. Saunoa v. Suafa’i, 3 A.S.R.3d 3 (App. Div. 1999).

A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. In Re Matai Title Tagoilelagi, 3 A.S.R.3d 66 (App. Div. 1999).

A judge’s impartiality might reasonably be questioned in proceedings where a disinterested observer would entertain significant doubt that justice would be done. In Re Matai Title Tagoilelagi, 3 A.S.R.3d 66 (App. Div. 1999).

Where judge’s failure to recuse himself found proper at trial court and issue decided under appropriate legal standard, reviewing court could nonetheless mandate recusal on remand out of an abundance of caution. In Re Matai Title Tagoilelagi, 3 A.S.R.3d 66 (App. Div. 1999).

§ 5(4) —Precedence and Stare Decisis

Purpose of stare decisis is to maintain uniformity and predictability of law, but not at expense of perpetuating manifest error. In re Matai Title Salave’a, 4 A.S.R. 44.

Although rule of stare decisis is basic, it must not be inflexibly applied if previous decision is erroneous. In re Matai Title Salave’a, 4 A.S.R. 44.

Powers of pardon and parole granted to executive by statutes and constitution do not give the executive carte blanche to ignore court orders and sentences. American Samoa Gov't v. Dole, 3 A.S.R.2d 63.

Release of prisoner within two weeks after court had sentenced him to a year of detention as condition of probation, whether called a furlough, work release, reward for good behavior, compassionate leave, or by another label, violated statutes and court order. American Samoa Gov't v. Dole, 3 A.S.R.2d 63.

When Supreme Court has not had occasion to reconsider a precedent for almost a century, almost all applications of precedent have been overruled by statute, and Supreme Court has overruled similar precedents in closely related or analogous areas, lower court may conclude that the precedent no longer represents the law that would be applied by Supreme Court. Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 59.

Rule of heredity that arose in previous trial court decision was not binding precedent when rule resulted from "judicial notice" of Samoan custom that ignored stark variation among different families' practices, rule was stipulated by the parties rather than briefed, argued, and decided, and rule had been criticized in subsequent opinions of the appellate court. In re Matai Title "Tauaifaiva", 5 A.S.R.2d. 13.

Decision of the highest court of a jurisdiction, including a decision of the Trial Division that was not appealed, should be followed by judge deciding subsequent case in the Trial Division unless there is some compelling reason not to do so. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

The fact that a trial judge would have decided an earlier case differently is not a compelling reason to disregard the principle of stare decisis and ignore the authority of the earlier case. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

Prior judicial decision was not a strong precedent when: (1) the decision resulted from a summary proceeding that did not include full briefing and argument by counsel; (2) the judge sitting in the later case was the same judge who had decided the prior case, so that there was no risk of casual disregard for the reflection and deliberation leading to the first decision; (3) the first decision was itself arguably an unfounded departure from precedent; and (4) both cases involved statutory interpretation, in which case the deciding court's primary duty is one of fidelity to the enacted law. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

Alleged "informal practice of the High Court" prior to a contrary decision did not divest that decision of its value as precedent, where no reported decisions or other evidence established the rationale or even the definite existence of the practice. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

Territorial government is bound by court orders in proceedings to which it is a party and should not issue legal opinions that counsel disobedience to such orders. American Samoa Gov't v. Satele, 7 A.S.R.2d 154.

Village, county, and district councils have no power to veto a court decision, rendered after trial in accordance with statutory procedure, that a particular person is entitled to hold a matai title. A.S.C.A. § 1.0401 et seq. In re Matai Title Sotoa, 8 A.S.R.2d 10.

Warden who released prisoner in violation of court order, on the authority of invalid order of parole board, was in continuing violation of court order for as long as the prisoner remained at large. Atuatasi v. Moaali`itele, 8 A.S.R.2d 53.

Signature of judge on a court order certifies that the judge has in fact exercised his judgment, that the premises of the order are true, that the order itself is lawful, and that it is appropriate under all the circumstances that the order be given the force of law. Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177.

Court was bound by its own judgment in a case decided eighty-two years earlier, whose parties were ancestors in title of the parties to the later case and in which the court had specifically defined the rights of the parties, notwithstanding any contrary implication in an even earlier decision of another court in which the parties and the questions before the court were somewhat different than in both later cases. Willis v. Fai`ivae, 10 A.S.R.2d 121.

A court must find facts consistently with the evidence before it, even if such findings conflict with prior findings made by a court deciding a prior case with different parties and different evidence. Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

Statement in a judicial opinion that was not necessary to the holding, on a question which was neither briefed nor argued by any party to the prior case, was not binding upon the court in deciding a subsequent case. Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

Stare decisis applies to questions of law and not of fact, to general propositions rather than to specific inquiries. Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

Where objectors to registration of land cited a prior case holding that the land belonged to them, but offered no surveys delineating the extent of their respective claims within the disputed area, the court would deny the offer of registration but would express no opinion with regard to the claims of the objectors beyond the holding in the prior case. Sivia v. Alaimalo, 13 A.S.R.2d 95.

A land registration in conflict with a Court order in a prior adjudication of land claims is void--or at least voidable in the absence of reliance by innocent third parties--for the same reasons that a registration would be without legal effect if it conflicted with an earlier valid registration. Fa`aaua`a v. Tauiliili, 15 A.S.R.2d 71.

Even if it would not exceed the Court's power, declaring a prior judicial decision null and void, when witnesses have died and memories have faded in the intervening thirty years, would be imprudent and unjust because the Court at that time was in a much better position to determine the issues material as to whether land should be registered. Lualemana v. Atualevao, 16 A.S.R.2d 34

High Court opinions between 1978 and 1986 were reported only if they established or altered a rule of law, criticized existing law, or, in the Justices' opinion, "involve[d] a legal issue of continuing public interest." Saufo`i v. American Samoa Gov't, 16 A.S.R.2d 71.

The court is bound by statute and treaty to recognize freehold grants made by the Land Commission of Samoa, which operated in Apia under the supervision of the then-Supreme Court of Samoa, prior to the United States-established government. Willis v. Fai`ivae, 17 A.S.R.2d 38.

As a matter of law, an earlier survey registered in accordance with law prevails over a later one. Willis v. Fai`ivae, 17 A.S.R.2d 38.

The court is bound to recognize a land survey which has been registered according to law. A.S.C.A. § 37.0101 et seq. Willis v. Fai`ivae, 17 A.S.R.2d 38.

Informal statements of traditional Samoan custom and law are neither binding on the Court nor persuasive, as they do not represent a recitation of legal authority. Pene v. Bank of Hawaii, 18 A.S.R.2d 65.

Even if erroneous, a court's decision as to whether a parcel of land is a person's individual land or a family's communal land is binding on later courts. Puailoa v. Estate of Lagafuaina, 19 A.S.R.2d 40.

The doctrine of stare decisis applies only to questions of law, not questions of fact or applications of principles of law to particular facts. Puailoa v. Estate of Lagafuaina, 19 A.S.R.2d 40.

A case is not overruled by a later case when they differ in findings of fact or issues raised and not in interpretation of law. Reid v. Puailoa, 23 A.S.R.2d 101.

Court orders entered pursuant to a stipulation of the parties, without the benefit of factual evaluation, may be vacated when a third party intervenes and a factual evaluation is necessary. Ala`ilima v. Zoning Board, 25 A.S.R.2d 146.

An order based on a material mistake of fact can be reopened and modified at the court's discretion. Mobile Marine Ltd. v. Ninna Marianne, 28 A.S.R.2d 88.

It is inappropriate for the Trial Division to revisit a principle settled by the Appellate Division. Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 117.

Underlying values of res judicata must sometimes be balanced against the policies implicated by its application, but this principle does not mean that a decision can never be final simply because it implicates a compelling question of policy such as the protection of Samoan custom. Fanene v. Fanene, 30 A.S.R.2d 115.

§ 5(5) —Supervision of Proceedings and Litigation

There was no error in court’s questioning of attorney for lessee to determine whether his relationship with defendants was such that he was also liable under lease. Scanlan v. Steffany, 3 A.S.R. 583.

It is not error of trial court to delineate evidence surrounding signing of lease and actions of attorney in procuring or omitting such signature, since trial court is judge of fact and law. Scanlan v. Steffany, 3 A.S.R. 583.

Where defendant has important witness who is not available but he knows of witness at time of trial, he should apply for continuance. Tigi v. Government, 4 A.S.R. 902.

Court’s refusal to permit witness to testify with respect to potential title holder’s character, personality and knowledge of Samoan custom was not erroneous where it would have been cumulative and unnecessary since potential title holder testified himself; and there is no indication court doubted his testimony. Utu v. Aumoeualogo, 4 A.S.R. 906.

Trial judge has right to propound questions to witnesses to elicit pertinent facts; he may recall witnesses who have been examined; he may cross-examine; he may ask leading questions; and he may elicit any relevant and material evidence without regard to beneficial or prejudicial effect on either party. Ross v. Scanlan, 4 A.S.R. 913.

Trial court does not err in failing to consider witness present in court room when appellant did not call witness to testify. Willis v. Government, 4 A.S.R. 926.

Court's statutory responsibility to supervise litigation involving minors imposes a duty on the court to exercise its own best judgment on the fairness of attorney fee arrangements. Oto v. National Pacific Insurance Co. (Mem.), 3 A.S.R.2d 114.

Trial Court had discretion to dismiss action four years after it had been filed, eighteen months after court had given notice that the case would be dismissed unless good cause to the contrary should be shown, and one year after the date that counsel estimated he would move for trial, when no such motion had been made. Monte Kaho v. Ron Pritchard Ground Services, Inc., 4 A.S.R.2d 40.

Constitutional right to due process of law is not denied when a court which has repeatedly accommodated counsel's unusual requests and overlooked procedural irregularities finally ceases to do so and dismisses the action. Monte Kaho v. Ron Pritchard Ground Services, Inc., 4 A.S.R.2d 40.

Pursuant to power to make "such order as to him may seem just" in any land case, Chief Justice or Associate Justice of High Court need not stop at denying plaintiff's meritless claim for relief, but may issue preliminary injunction restraining plaintiff from interference with rights of defendant as delineated in earlier judgment. A.S.C.A. § 43.0304. Sialega v. Taito, 5 A.S.R.2d 99.

Trial judge may exclude spectators from the courtroom during testimony when necessary to protect or shield the witness; to prevent embarrassment or emotional disturbance; or to enable a reluctant witness to testify to material facts. American Samoa Gov't v. Masaniai, 6 A.S.R.2d 114.

Trial judge properly decided, after a public hearing at which each spectator had an opportunity to express reasons for his or her desire to remain in the courtroom, that the public should be excluded during the testimony of a youthful rape victim when trial judge found that certain spectators wished to be present in order to intimidate the witness. American Samoa Gov't v. Masaniai, 6 A.S.R.2d 114.

Exclusion of spectators from courtroom under exigent circumstances did not violate criminal defendant's right to a public trial or the public's right to be present. U.S. Const. amends. I, VI. American Samoa Gov't v. Masaniai, 6 A.S.R.2d 114.

When a judgment creditor moves to seize property of the judgment debtor and court has determined that the property does belong to the judgment debtor, the property should ordinarily be held by the Court rather than by the creditor, the debtor, or the person previously in possession pending judicial determination of the creditor's right to seize it. In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Court did not deprive attorney of life, liberty, or property without due process of law, either by injury to his reputation or otherwise, where (1) attorney had represented judgment debtor; (2) attorney also represented other members of judgment debtor's family; (3) after judgment, the judgment debtor and her family had agreed to changes in the record ownership of property formerly recorded as property of the judgment debtor, had arranged for the sale of the property, and had removed themselves from the territorial jurisdiction of the court; (4) attorney had in his possession the proceeds of the sale, which judgment creditor alleged to be the property of the debtor but which debtor and other family members claimed to be the property of other family members; (5) court had held the funds to be the property of the judgment debtor and subject to seizure by the judgment creditor; and (6) court ordered the funds to be deposited in the registry of the court pending further proceedings. In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Trial court did not err in dismissing the complaint at the conclusion of plaintiff's case, where plaintiff had testified at length and had had ample opportunity to present all the evidence needed for his case in chief, trial court assumed as true some evidence that plaintiff indicated he would have offered in rebuttal, and trial court's decision was well supported in documentary evidence introduced during the plaintiff's case. Willis v. Fai`ivae, 12 A.S.R.2d 37.

Trial judge has wide discretion in deciding whether to appoint an interpreter and need not accept defendant's assertion that he needs one as dispositive, but must balance defendant's right to confrontation and effective assistance against the public's interest in the economical administration of criminal law. Kim v. American Samoa Gov't, 17 A.S.R.2d 193.

Bringing an action in the wrong division of the High Court does not render the action or judgment a nullity; absent a showing that an erroneous caption made some practical difference, the proper remedy is to give the case a new caption. Jennings v. Jennings, 19 A.S.R.2d 34.

Consolidation is appropriate when actions having “a common question of law or fact are pending before the court." T.C.R.C.P. 42(a). Pita v. Garrett, 29 A.S.R.2d 12.

With a common question of law or fact present, the court is permitted to order consolidation, with or without the parties' consent, to serve the purpose of convenience and economy of administration, and is given broad discretion to decide whether consolidation is desirable. Pita v. Garrett, 29 A.S.R.2d 12.

While the prosecuting attorney has almost unfettered discretion to decide whether or not to prosecute a case, the court has the discretion to decide whether or not to grant a motion to dismiss a criminal complaint. T.C.R.Cr.P. 48(a). American Samoa Gov’t v. Su`a, 30 A.S.R.2d 43.

The court may refuse to dismiss a criminal case when it clearly and convincingly determines that dismissal would not be in the public interest. American Samoa Gov’t v. Su`a, 30 A.S.R.2d 43.

In order to determine whether dismissal of a criminal case serves the public interest, the court can require the prosecuting attorney to disclose his reasons for wishing to dismiss the case prior to a ruling thereon. American Samoa Gov’t v. Su`a, 30 A.S.R.2d 43.

A trial court may grant or deny, in its sound discretion, a continuance during trial to obtain a witness, which decision will not be overturned except upon a showing of clear abuse. A.S.G. v. Su`a, 31 A.S.R.2d 8.

In considering whether or not to grant or deny a continuance during trial to obtain a witness, the court must take into account such factors as the benefit the movant expects, the likelihood of producing the witness, the burden on the jurors, court and other witnesses, and foremost whether the continuance will achieve or nullify substantial justice. A.S.G. v. Su`a, 31 A.S.R.2d 8.

The court need not, and as a general rule will not, accept filings made after a matter has been submitted, particularly where the court specifically asked an attorney whether he would like additional time to make a filing, and he, in return, specifically answered that he would not. Clifton v. Voyager, 31 A.S.R.2d 12.

Where a court places property which is the subject of a dispute into the hands of a trustee prior to a final determination of the merits of the case this does not divest a party claiming ownership from asserting the party’s claim for legal and ownership title and rights to the property at the subsequent trial. Bendall v. Samoa Aviation, Inc., 1 A.S.R.3d 16 (App. Div. 1997).

§ 5(6) —Supervision of Judgments and Settlements

SEE CIVIL PROCEDURE § 10(1) – ENFORCEMENT OF JUDGMENTS

An order or judgment is entered for all purposes on the date any judicial writing is filed or any pronouncement made from the bench. High Court Rule 23. Judicial Memorandum, 4 A.S.R.2d 172.

A proffered "settlement" of an already litigated claim, purporting to "adjust" boundaries established by the court, has no effect when it (1) was never judicially approved; (2) resulted from negotiations between a licensed legal practitioner and an adverse party represented by counsel in the absence of the latter party's counsel; (3) clearly results in disadvantage to the latter party; (4) was renounced by the latter party soon thereafter; and (5) bears a close resemblance to an earlier "settlement" asserted in court by the legal practitioner, the existence of which the adverse party denied immediately after having consulted his attorney. Te'o v. Sotoa, 5 A.S.R.2d 90.

Documents purporting to be settlements of prior disputes are customarily given stricter judicial scrutiny than contracts involving more palpable consideration, especially when the party drafting and pressing for the settlement is a business entity experienced in such transactions, the other party has no such experience and is unrepresented by counsel, the more experienced party employed threats or promises to encourage the other party to sign the document with little or no deliberation, and the consideration given by the more experienced party was relatively trivial. Development Bank v. Ilalio, 5 A.S.R.2d 110.

In determining whether a business entity believes in good faith that its claim is just for the purpose of determining whether the claim can be consideration for a settlement, the entity is chargeable with the knowledge of its agents who participated in the transactions giving rise to the claim. Development Bank v. Ilalio, 5 A.S.R.2d 110.

No reasonable person could conclude that creditor had agreed to a settlement proposed by debtor, and therefore no question of material fact was raised with respect to such settlement, where the evidence, taken in the light most favorable to the debtor, was that (1) debtor had told creditor's representative he had no intention of paying the debt but that he was willing to surrender a car that had been taken as collateral security; (2) creditor never verbally agreed to this proposal; (3) creditor had the legal right to take the car and then collect the remainder of the debt; (4) debtor had the subjective impression that creditor's representative was happy to receive the car, since otherwise the creditor would receive nothing at all; (4) creditor never took the car. Bank of Hawaii v. Pene, 8 A.S.R.2d 30.

Proposed settlement of previously litigated land claim which purports to adjust the boundaries set by the court's judgment should ordinarily be submitted to court for its approval. Estate of Sotoa v. Te`o, 8 A.S.R.2d 165.

Risk of abuse inherent in consent judgments ordinarily outweighs their usefulness as a means of saving time, at least in a jurisdiction where trial court routinely resolves uncontested matters by means of brief evidentiary hearings a few days after suit is filed. Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177.

Court would not sign consent judgment where one party was represented by counsel, other side was unrepresented, consent judgment required unrepresented party to pay attorney fee that would not have been awarded if the case had been litigated, and court could not be sure that the principal amount had been correctly calculated. Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177.

Signature by person unrepresented by counsel on document designated as settlement or consent judgment does not automatically entitle the document to judicial enforcement without prior judicial scrutiny. Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177.

In an action for breach of an oral contract for the settlement of an outstanding electric bill, court would not find that the agreement included concessions by the electric company with regard to land disputes unrelated to the bill in question, where: (1) plaintiff's documentary evidence of the existence of such terms was self-serving and prepared after the negotiations; (2) defendant's representatives testified that there was no agreement on these terms; (3) notes made during the negotiations by defendant's counsel reflected no agreement to such terms; (4) plaintiff himself had sought the settlement as an alternative to a trial scheduled the same day, over the objections of defendant's counsel who had objected to a continuance for the purpose of settlement negotiations; (5) a stipulation signed by both parties at the conclusion of the negotiations had contained no reference to agreement on any collateral terms; (6) agreement to such terms would have been beyond the scope of defendant's representatives' authority; and (7) it made no business sense for defendant to agree to such terms. Pene v. American Samoa Power Authority, 10 A.S.R.2d 9.

Court presented with a settlement involving minor children would not approve a fee to an attorney from another jurisdiction who had not applied for admission pro hac vice and whose services, if any, constituted the unauthorized practice of law. Moananu v. American Samoa Gov't (Mem.), 11 A.S.R.2d 100.

Court would not approve a settlement award to a deceased plaintiff who had been dismissed from the case with the acquiescence of plaintiffs' counsel. Moananu v. American Samoa Government (Mem.), 11 A.S.R.2d 100.

Where counsel for plaintiff who died during the litigation did not move to substitute his client's estate, but instead continued to litigate for two years, recovered certain funds, and then moved for distribution of the funds among widow and various unnamed children of the decedent, court would deny the motion and retain the funds pending qualification of an administrator of decedent's estate. Te`o v. Continental Insurance Co. (Mem.), 13 A.S.R.2d 42.

Not being vested with prosecutorial discretion, courts can approve a consent-decree provision limiting the defendants' liability to ASG for past violations, but it is inappropriate for a court to enter an order prohibiting the prosecution of future violations of law. American Samoa Gov't v. StarKist Samoa, Inc., 16 A.S.R.2d 27.

Court orders providing for property settlements, unlike orders for alimony, may not be modified by the court to reflect changes in the circumstances of the parties. Mahoney v. Mahoney, 16 A.S.R.2d 109.

A settlement will not ordinarily be enforced when (1) the party that drafted and pressed for the "settlement" is a business entity experienced in and familiar with such transactions; (2) the other party is an individual who has no such experience or familiarity and who generally signs the document without benefit of legal counsel; (3) the transaction was a whirlwind settlement in which there was no evidence that the weaker party negotiated, deliberated, or fully understood what he was giving up, and in which the stronger party employed threats or promises to encourage a quick decision; and (4) the exchange was lopsided, in that potentially valuable legal rights were surrendered by the weaker party in exchange for a small sum or other trivial consideration from the stronger party. Samoa Products, Inc. v. A`asa, 17 A.S.R.2d 66.

Merely recommending that an individual retain a lawyer cannot single handedly transform an unenforceable settlement in an enforceable one. Samoa Products, Inc. v. A`asa, 17 A.S.R.2d 66.

The "confession" situation must be distinguished from a settlement and compromise, in which each party makes a deliberate decision that the costs and risks of litigation exceed the possible advantages to be gained by it. Samoa Products, Inc. v. A`asa, 17 A.S.R.2d 66.

A damage award to a minor shall be deposited directly into the depositary of the High Court of American Samoa and placed in an interest-bearing account with the minor as beneficiary; disbursements are to be made only on application by the guardian ad litem and with the approval of one of the Justices. Sciascia v. Lutali, 23 A.S.R.2d 38.

The High Court generally rejects plea agreements under T.C.R.Cr.P. 11 (e)(1)(C) that remove the court's discretion in sentencing except in very rare occasions where the interests of justice were found to be better served by their acceptance. American Samoa Gov't v. Masaniai, 28 A.S.R.2d 7.

The court may void a judgment even after the parties have subsequently entered into a settlement, even though the decision, as a practical matter, invalidates the settlement. Interocean Ships, Inc. v. Samoa Gases, 30 A.S.R.2d 170.

§ 5(7) —Contempt

SEE LEGAL PROFESSION § 4(2) – SANCTIONS

Courts have inherent power to ensure the integrity of court functions by punishing contempt of court, even in the absence of statutory contempt power. American Samoa Gov't v. Godinet, 7 A.S.R.2d 127.

Criminal contempt statute authorizing the executive to prosecute certain conduct as criminal contempt of court does not limit court's power to act on its own under general contempt statute. A.S.C.A. §§ 3.0203, 46.4617. American Samoa Gov't v. Godinet, 7 A.S.R.2d 127.

General contempt statute may give rise to criminal liability despite existence of separate statute making certain acts criminal offenses. A.S.C.A. §§ 3.0203, 46.4617. American Samoa Government v. Godinet, 7 A.S.R.2d 127.

In certain circumstances, inexcusable neglect may constitute willful and contemptuous conduct and be punished as contempt of Court. Vaela’a v. Sunia, 1 A.S.R.3d 131 (Trial Div. 1997).

There is no right to appeal judgment of contempt. However, a contempt judgment may be contested by filing a writ of certiorari. Fuavai v. District Court, 2 A.S.R.3d 41 (App. Div. 1998).

§5(8) —Statutory Construction

SEE CONSTITUTIONAL LAW § 3(3) –STATUTORY CONSTRUCTION

Absent a clearly expressed legislative intention to the contrary, the language of the statute must ordinarily be regarded as conclusive. American Samoa Gov't v. Williams, 4 A.S.R.3d 140 (Trial Div. 2000).

Where statute prohibited possession of “a controlled substance,” rather than “one or more controlled substances,” statutory language made the possession of one controlled substance an offense, and possession of more than one substance multiple offenses. American Samoa Gov't v. Williams, 4 A.S.R.3d 140.

Although the starting point for interpretation of a statute is the language of the statute itself (and absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive), the court may also consider the wrong the statute seeks to prevent. TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

Statutory interpretation is purely a question of law to be decided by the court. Nua v. Sunia, 4 A.S.R.3d 208 (Trial Div. 2000).

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. Nua v. Sunia, 4 A.S.R.3d 208 (Trial Div. 2000).

Courts may not read into a statute an implication that it does not warrant. Nua v. Sunia, 4 A.S.R.3d 208 (Trial Div. 2000).

In the absence of evidence to the contrary, the Court must regard the plain wording of the statute as conclusive. Ripley v. American Samoa Gov't, 4 A.S.R.3d 331 (Land & Titles Div. 2000).

The Court cannot read an implication into a statute that it does not warrant. Ripley v. American Samoa Gov't, 4 A.S.R.3d 331 (Land & Titles Div. 2000).

A statute should be interpreted according to its plain meaning, avoiding any construction that would render a provision to be meaningless or nugatory. Isaia v. Am. Samoa Gov’t, 6 A.S.R.3d 3 (App. Div. 2002).

The meaning of a statute must be ascertained in light of its purpose. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

Statutory interpretation is purely a question of law to be decided by the court. Boral Gas of American Samoa, Inc. v. Iaulualo, 6 A.S.R.3d 232 (Trial Div. 2002).

The purpose of statutory interpretation is to effectuate the intention of the legislature. Boral Gas of American Samoa, Inc. v. Iaulualo, 6 A.S.R.3d 232 (Trial Div. 2002).

The first step in statutory interpretation is determining whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Boral Gas of American Samoa, Inc. v. Iaulualo, 6 A.S.R.3d 232 (Trial Div. 2002).

When the words are either reasonably susceptible to different meanings, conflict with the overall statutory purpose, or cause absurd results, a court must look beyond literal statutory language. Boral Gas of American Samoa, Inc. v. Iaulualo, 6 A.S.R.3d 232 (Trial Div. 2002).

Where a statute is ambiguous, the court analyzes the design of the statute as a whole and its object and policy. Boral Gas of American Samoa, Inc. v. Iaulualo, 6 A.S.R.3d 232 (Trial Div. 2002).

The court may examine sources other than the statute’s language for evidence of legislative intent. Boral Gas of American Samoa, Inc. v. Iaulualo, 6 A.S.R.3d 232 (Trial Div. 2002).

Neither the Governor nor any other member of the Executive Branch may undo what the Legislature of American Samoa has put in place as law without having a statutory basis for such action. Dameworth v. Am. Samoa Gov’t, 6 A.S.R.3d 242 (Trial Div. 2002).

Courts cannot change what is clear on the face of the statute. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

Where the issue is one of statutory interpretation, such is purely a question of law. Boral Gas of American Samoa, Inc. v. Iaulualo, 7 A.S.R.3d 57 (Trial Div. 2003).

The Court is free to interpret the laws of American Samoa differently than similarly worded federal laws. Boral Gas of American Samoa, Inc. v. Iaulualo, 7 A.S.R.3d 57 (Trial Div. 2003).

§ 6 Sovereign Rights

SEE TAXATION § 8 – SOVEREIGN IMMUNITY

SEE TORTS § 10 – GOVERNMENT TORT LIABILITY ACT

Laches on part of government or officers of government is not defense to claim founded on sovereign right. Luce v. Pila, 3 A.S.R. 127.

Protection from a known and inherently dangerous condition is an operational rather than a discretionary function for which government has no sovereign immunity under statute. Neither may government avail itself of sovereign immunity when acting in a proprietary capacity, as in the rental of housing to its employees. Savage v. Am. Samoa Gov’t, 1 A.S.R.2d 102 (Trial Div. 1983).

When the government knows of a dangerous condition, it is liable for damages caused by its failure to attempt to alleviate it. Savage v. Am. Samoa Govt, 2 A.S.R.2d 6 (App. Div. 1984).

Court would not grant motion to dismiss territorial government as defendant in shareholders' derivative suit on the ground of sovereign immunity where government had created bank, made loans, executed mortgages, acquired stock in corporation, assumed management of the corporation, voted in corporate elections, and undertaken to sell the bank's majority interest in the corporation, since such actions might have given rise to an implicit agreement to be held responsible for breach of obligations thus undertaken. Fa'atiliga v. Lutali, 3 A.S.R.2d 139.

Territorial immunity from suit may be implied from similarities between structures of American Samoan and state governments. Ferstle v. American Samoa Gov't, 4 A.S.R.2d 160.

American Samoa Government, immune from suit absent consent or waiver, is not a "person" for purposes of federal civil rights statute. 42 U.S.C. § 1983. Ferstle v. American Samoa Gov't, 4 A.S.R.2d 160.

Government Tort Liability Act does not constitute waiver of immunity from suit so as to give right of action against territorial government under federal civil rights law. A.S.C.A. § 43.1203 et seq.; 42 U.S.C. § 1983. Ferstle v. American Samoa Gov't, 4 A.S.R.2d 160.

Territorial government is not a "person" liable under federal civil rights law for conspiracy to violate federal rights. 42 U.S.C. § 1985. Ferstle v. American Samoa Gov't, 4 A.S.R.2d 160.

Sovereign immunity is premised on the notion that there can be no action to enforce a right against authority that created the right. Ferstle v. American Samoa Gov't, 4 A.S.R.2d 160.

Absent waiver of sovereign immunity or consent to suit, action for damages under civil rights law may not be maintained against any of the several states. 42 U.S.C. § 1983. Ferstle v. American Samoa Gov't, 4 A.S.R.2d 160.

Territorial government whose consumer protection agency brought action in a representative capacity on behalf of a named individual, and which was not named as a plaintiff in its own right, could not recover damages in the consumer protection action for the loss of its own property. A.S.C.A. § 27.0402. American Samoa Gov't ex rel. Langford v. Hawaiian Airlines, Inc., 10 A.S.R.2d 1.

The power to expel aliens is a fundamental, sovereign power exercised by the political branches of government. American Samoa Gov't v. Falefatu, 17 A.S.R.2d 114.

The usual reason given for construing statutes of limitation for suits against the United States Government as jurisdictional (i.e., not subject to waiver and/or tolling)--that the limitations are deemed an integral part of the initial waiver of sovereign immunity, which should not be extended by courts beyond the intent of Congress--does not apply to ASG. Randall v. American Samoa Gov't, 19 A.S.R.2d 111.

Under the Deeds of Cession between the chiefs of Eastern Samoa and the United States, all vestiges of sovereignty passed from former to the latter. Alamoana Recipe, Inc., v. American Samoa Gov't, 25 A.S.R.2d 97.

Sovereign Immunity protects the American Samoa Government from any claim based upon the exercise or performance of, or the failure to exercise or perform, a discretionary function or duty on the part of an officer or employee, whether or not the discretion involved is abused. Ala v. American Samoa Gov’t, 2 A.S.R.3d 163 (Trial Div. 1998).

Governmental conduct at the planning stage should usually be considered discretionary, while the actions government specifically undertakes to carry out its programs and policies should usually be considered operational. Ala v. American Samoa Gov’t, 2 A.S.R.3d 163 (Trial Div. 1998).

Routine cleaning or maintenance is not a discretionary governmental function but is operational in nature. Ala v. American Samoa Gov’t, 2 A.S.R.3d 163 (Trial Div. 1998).

When sovereign immunity is waived, the government is liable in the same manner and to the same extent as a private individual under like circumstances. Ala v. American Samoa Gov’t, 2 A.S.R.3d 163 (Trial Div. 1998).

Generally, the burden is on the officer accused of unlawful conduct to prove entitlement to immunity. Afele-Fa`amuli v. Am. Samoa Cmty. Coll., 4 A.S.R.3d 219 (Trial Div. 2000).

§ 7 Public Records

SEE EVIDENCE § 10 – CONTENTS OF WRITINGS, RECORDINGS & PHOTOGRAPHS

Most information available from chief executive of state or territory can be just as easily obtained from lesser officials. Fa'atiliga v. Lutali (Mem.), 3 A.S.R.2d 124.

The language of A.S.C.A. § 10.0603 does not contemplate or give any direction regarding the disclosure of financial records to individual members of either house, and falls well short of creating the "plain duty" and "plain right" required for the issuance of a writ of mandamus. Lutu v. Ale, 28 A.S.R.2d 43.

A record is a public record if it is required to be kept by law, or is kept in furtherance of some other duty required by law, or which is meant to serve as a memorial of something done by a person in his/her capacity as a public official. Lutu v. Ale, 28 A.S.R.2d 43.

Private individuals cannot assert priority over public officials in the use of public documents for purposes such as auditing. Lutu v. Ale, 28 A.S.R.2d 43.

The right to review public records is not absolute. The law requires that the interests of the individual seeking the record be weighed against the public interest in confidentiality. Lutu v. Ale, 28 A.S.R.2d 43.

Where a record contains some private information, mingled with public information, mandamus may compel an official to allow supervised copying of the public portions of the record while omitting the private. Lutu v. Ale, 28 A.S.R.2d 43.

A duty to disclose information exists when: (1) the information is public record; and (2) petitioner's interest in the information outweighs any public interest in preventing disclosure of the information; or (3) the Constitution or a statute requires disclosure. Lutu v. Ale, 28 A.S.R.2d 43.

Where the right to view a public record is established, mandamus may compel disclosure of the record by whoever is preventing such disclosure. Lutu v. Ale, 28 A.S.R.2d 43.

§ 8 Government Employees

SEE EMPLOYMENT LAW § 4 – GOVERNMENT EMPLOYEES

BANKRUPTCY

§ 1 General Provisions

2 Stay of Proceedings

§ 1 General Provisions

SEE CIVIL PROCEDURE § 1(5) – BANKRUPTCY

The filing of a Chapter 11 bankruptcy petition in a United States District Court prevents the High Court from subsequently obtaining jurisdiction over property of the petitioner. 11 U.S.C. § 362(a). Rainwater v. The Sea Encounter, 3 A.S.R.2d 87.

Since there is neither a bankruptcy court in American Samoa nor any provision designating American Samoa as part of any district with a bankruptcy court, there exists no court with jurisdiction to entertain a bankruptcy action when the debtor's residence, domicile, principal place of business, and principal assets are in American Samoa. 11 U.S.C. § 101(49); 28 U.S.C. § 1472. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

The acknowledged unfairness to a creditor in the Territory who must travel to the United States in order to pursue his claim against a debtor in bankruptcy who is otherwise amenable to suit locally is not enough to overcome the language and policy of the statute requiring the consolidation of claims against a bankrupt debtor. 11 U.S.C. § 362. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

A bankruptcy court which has acquired jurisdiction over a debtor and his legal rights and obligations may issue a judgment which is binding in American Samoa. Lutali v. Pedro, 27 A.S.R.2d 73.

Judgments obtained or other actions taken in violation of a stay in bankruptcy are void and of no effect. Lutali v. Pedro, 27 A.S.R.2d 73.

§ 2 Stay of Proceedings

SEE CIVIL PROCEDURE § 11(3) – STAY OF PROCEEDINGS

The filing of a Chapter 11 bankruptcy petition in a United States District Court automatically stays proceedings against the petitioner in the High Court of American Samoa. 11 U.S.C. § 362(a). Rainwater v. The Sea Encounter, 3 A.S.R.2d 87.

Automatic stay of suits against bankruptcy petitioner does not operate to stay proceedings against solvent co-defendants. 11 U.S.C. § 362. Monte Kaho v. Ron Pritchard Ground Services, Inc., 4 A.S.R.2d 40.

The automatic stay provided in the Bankruptcy Act differs from an injunction or temporary restraining order only in that the stay becomes binding without an affirmative act of the bankruptcy court. 11 U.S.C. § 362(d)&(e). Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

The language and history of the automatic stay provided in the Bankruptcy Act imply that Congress intended for the stay to apply wherever Congress had the power to make it apply, without limitation. 11 U.S.C. § 362. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

The automatic stay in bankruptcy protects both debtor and creditor, by providing debtor a "breathing spell" during which to reorder his financial condition and by ensuring that no single creditor can drain the debtor's assets without judicial attention to the rights of other creditors. 11 U.S.C. § 362. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

The automatic stay of any judicial, administrative, or other proceeding against a debtor who has instituted a bankruptcy reorganization extends to proceedings in the High Court of American Samoa. 11 U.S.C. § 362. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

Trial court properly held that proceedings before it were automatically stayed when defendant filed bankruptcy petition in another jurisdiction. 11 U.S.C. § 362(a). Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 6 A.S.R.2d 62.

Judgments obtained or other actions taken in violation of a stay in bankruptcy are void and of no effect. Lutali v. Pedro, 27 A.S.R.2d 73.

The rule voiding actions in contravention of a stay applies to unlisted creditors, even if the creditor had no notice of the stay. Lutali v. Pedro, 27 A.S.R.2d 73.

The stay provisions set forth in 11 U.S.C. § 362(a) do not apply to actions brought by the debtor which inure to the benefit of the bankruptcy estate. PAL Air International, Inv. v. Porter, 1 A.S.R.3d 1 (App. Div. 1997).

CIVIL PROCEDURE

§ 1 Initial Matters

1(1) —Jurisdiction Generally

1(2) —Personal Jurisdiction

1(3) —Subject Matter Jurisdiction

1(4) —Issues Related to Federal Jurisdiction

1(5) —Bankruptcy

1(6) —Admiralty

1(7) —Right of Action

1(8) —Cause of Action

1(9) —Rules of Civil Procedure Generally

1(10) —Affidavits

2 Service of Process

2(1) —General Provisions

2(2) —By Publication

2(3) —By Posting

2(4) —Under the JIFSA

3 Pleadings

3(1) —General Provisions

3(2) —Liberal Construction

3(3) —Amending Pleadings

3(4) —Rule 11 Sanctions

4 Pretrial Motions

4(1) —Motion to Dismiss

4(1)(a) —General Provisions

4(1)(b) —Failure to State a Claim – 12(b)(6) Motion

4(1)(c) —Court’s Discretion

4(1)(d) —Compared to Summary Judgment Motion

4(1)(e) —Time for Filing Motion

4(2) —Motion for Judgment on the Pleadings

4(2)(a) —Generally

4(2)(b) —Compared to Summary Judgment Motion

4(3) —Motion for More Definite Statement

4(4) —Motion to Strike

4(4)(a) —Generally

4(4)(b) —Relation to Controversy

4(4)(c) —Unduly Prejudicial

4(5) —Dismissal of Actions

4(5)(a) —Generally

4(5)(b) —Voluntary Dismissal by Plaintiff

4(5)(c) —Voluntary Dismissal by Court

4(5)(d) — Failure to Prosecute

4(5)(e) —Time for Filing Motion

4(5)(f) —Costs of Previously Dismissed Action

4(6) —Continuances

5 Parties

5(1) —General Provisions

5(2) —Joinder

5(3) —Class Actions

5(4) —Substitution of Parties

5(5) —Interpleader

5(6) —Intervention

5(7) —Consolidation

5(8) —Counterclaims

5(9) —Cross-claims

5(10) —Third Party Practice

5(11) —Bifurcated Proceedings

6 Discovery

6(1) —General Provisions

6(2) —Depositions

6(3) —Interrogatories

6(4) —Productions of Documents & Things

6(5) —Physical and Mental Examinations

6(6) —Requests for Admission

6(7) —Protective Orders

6(8) —Sanctions

7 Summary Judgment

7(1) —Standard

7(2) —Opposition to Motion

7(3) —Compared to 12(b)(6) Motion to Dismiss

7(4) —Compared to Motion for Default Judgment

7(5) —Compared to Motion for Partial Summary Judgment

7(6) —Within Court’s Discretion

7(7) —By Affidavit

7(8) —Notice and Hearing

7(9) —Summary Judgment Denied

7(10) —Summary Judgment Granted

7(11) —Appropriate Issues for Summary Judgment

7(12) —Standard of Review

7(13) —Grounds for Appeal

8 Injunctions

8(1) —General Provisions

8(2) —Preliminary Injunctions

8(3) —Injunctions Granted

8(4) —Injunctions Denied

8(5) —Substantial Likelihood of Success

8(6) —Irreparable Injury

8(7) —Permanent Injunctions

8(8) —Compared to Stay Pending Appeal

9 Equitable Remedies

9(1) —General Provisions

9(2) —Estoppel, Unclean Hands

9(3) —Laches

9(4) —Tolling

9(5) ¾Subrogation

9(6) ¾Constructive Trusts

10 Judgments

10(1) ¾Enforcement of Judgments

10(2) ¾Validity of Judgments

10(3) ¾Orders in Aid of Judgment

10(4) ¾Declaratory Judgments

10(5) ¾Default Judgments

10(6) ¾Interlocutory & Collateral Orders

10(7) ¾Res Judicata & Collateral Estoppel

10(8) ¾Merger

11 Post Judgment Motions & Appeals

11(1) —Motion for New Trial or Reconsideration

11(1)(a) —General Provisions

11(1)(b) —Time for Filing

11(1)(c) —Particularity Requirement

11(1)(d) —Grounds for New Trial or Reconsideration

11(2) —Relief from Judgment or Order - Rule 60 Motion

11(3) —Stay of Proceedings

11(3)(a) —General Provisions

11(3)(b) —Likelihood of Appellate Success

11(3)(c) —Irreparable Harm/Balance of Equities

11(3)(d) —Public Interest

11(4) —Appellate Jurisdiction

11(5) —Petition for Rehearing

11(6) —Appellate Procedures

11(6)(a) —Generally

11(6)(b) —Notice of Appeal

11(6)(c) —Appellate Briefs

11(6)(d) —Appellate Motions

11(6)(e) —Failure to Raise Issue Below

11(6)(f) —Transcripts

11(7) —Costs of Appeal

11(8) —Findings of Law – De Novo Review

11(9) —Findings of Fact – Clearly Erroneous

11(10) —Credibility of Evidence and Witnesses

11(11) —Administrative Agency Decisions

11(12) —Abuse of Discretion

11(13) —Harmless and Reversible Error

12 Conflict of Laws

12(1) —Law of the Forum

12(2) —Foreign Courts and Judgments

13 Writs

13(1) —General Provisions

13(2) —Procedural Details

13(3) —Elements

13(3)(a) —Generally

13(3)(b) —Plaintiff’s Specific Legal Right

13(3)(c) —Defendant’s Indisputable Duty

13(3)(d) —Other Avenues of Relief Exhausted

14 Garnishment

16 Alternative Dispute Resolution

15(1) —Mediation

15(2) —Voluntary Arbitration

15(3) —Compulsory Arbitration

15(4) —Condemnation Proceedings

15(5) —Appeal of Arbitrator’s Decision

§ 1 Initital Matters

§ 1(1) —Jurisdiction Generally

High Court’s jurisdiction is not plenary but subject to that enumerated by territorial legislature. Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983.

In appropriate circumstances, Court has jurisdiction to resolve a land dispute in a Matai title case. Nouata v. Pasene, 1 A.S.R.2d 25 (App. Div. 1980).

District Court lacks jurisdiction to try unsworn complaint. Aumua v. Am. Samoa Gov’t, 1 A.S.R.2d 43 (App. Div. 1980).

Court has no jurisdiction to alter rights and obligations with respect to persons not parties and properties not pleaded. Reid v. Tavete, 1 A.S.R.2d 85 (App. Div. 1983).

This Court has no jurisdiction to hear a petition for limitation of liability which may be brought only in a United States district court. In re M/V Ocean Pearl, 2 A.S.R.2d 21 (Trial Div. 1984).

Territorial courts are established not under Article III of the Constitution, but by Congress pursuant to the general legislative powers granted by article I and the power granted by article IV to make rules and regulations for the territories. U.S. Const. arts. I, III, IV. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

The High Court of American Samoa exercises judicial power that can be divested only by an Act of Congress. 48 U.S.C. § 1662a; Rev. Const. Am. Samoa art. III § 1. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

The "judicial jurisdiction of the United States" extends to American Samoa. 11 U.S.C. § 101(49). Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

High Court of American Samoa has exclusive and original jurisdiction over territorial income tax proceedings, sitting as a District Court in refund cases and a Tax Court in deficiency proceedings. A.S.C.A. §§ 11.0401, 11.0408. Klauk v. American Samoa Government, 13 A.S.R.2d 52.

Enactment of summary eviction statute did not deprive the Court of its pre-existing general jurisdiction to issue injunctions and declaratory judgments and to award damages. A.S.C.A. § 43.1401 et seq. Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20.

Even if the summary eviction statute was jurisdictional and the demand letter for possession or payment did not comply with the statute, the court properly exercised its general jurisdiction in the absence of prejudice. A.S.C.A. § 43.1401 et seq. Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20.

An order issued by a court without jurisdiction is null and void. Taulaga v. Patea, 17 A.S.R.2d 206.

The High Court cannot enjoin proceedings in other jurisdictions in a limitation-of-liability proceeding, because the federal statute restricts jurisdiction to federal district courts and because neither the territorial legislature nor the court's rules can extend the court's jurisdiction to encompass proceedings in other jurisdictions. 46 U.S.C. §§ 145, 181 et seq.; T.C.R.C.P. Rule F(1). In re Complaint of Voyager, Inc., 23 A.S.R.2d 47.

A single justice has the authority to issue an alternative writ, schedule a hearing, and set a briefing schedule; however, resolution of substantive issues, other than in connection with any preliminary or supplementary matter, requires a quorum of two justices and one associate judge. A.S.C.A. §§ 3.0209, 3.0220. In re Complaint of Voyager, Inc., 24 A.S.R.2d 90.

Appeals of the High Court's decisions are accomplished by suing the Secretary of the Interior in his official residence in Washington, D.C. Alamoana Recipe, Inc., v. American Samoa Government, 25 A.S.R.2d 97.

The High Court has jurisdiction to review only the “final decisions” of the District Court. Lafaele v. American Samoa Gov’t, 4 A.S.R.3d 35 (App. Div. 2000).

Where Court had both common law general jurisdiction and admiralty jurisdiction, action in rem against defendant vessel to enforce personal judgment could proceed under Supplemental Rule B or C of the Trial Court Rules of Civil Procedure. Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Without jurisdiction, a court cannot proceed at all in any cause. Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

Federal courts do not have exclusive jurisdiction over federal civil rights actions such as 42 U.S.C. § 1981, but instead have concurrent jurisdiction. Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

The Trial Division of the High Court is not a court of limited jurisdiction; rather, it is a court of general jurisdiction with the power to hear any matter not otherwise provided by statute. Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

The Legislature of American Samoa has the power to define the jurisdiction of the High Court as long as it is consistent with the laws and treaties of the United States and American Samoa. Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

A.S.C.A. § 3.0208 clearly grants the High Court jurisdiction to hear claims brought under 42 U.S.C. § 1981. Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

42 U.S.C. § 1981 applies to United States Territories, including American Samoa. Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

There is no jurisdictional bar to claims that suspension of a Fono representative for his statements: (1) was an unconstitutional restrain on free speech; (2) was an unconstitutional taking of a property interest; and (3) is null. Muavaefa’atasi v. House of Representatives, 7 A.S.R.3d 117 (Trial Div. 2003).

§ 1(2) —Personal Jurisdiction

Awards for alimony and child support must be predicated upon in personam jurisdiction, which cannot constitutionally be had, except in unusual circumstances, in the absence of personal service of process within the court’s discretion. Tafaoa v. Tafaoa, 1 A.S.R.2d 68 (Trial Div. 1982).

Party who comes into court voluntarily seeking affirmative relief thereby subjects himself to adverse judgments beyond mere denial of the relief he seeks. Te'o v. Continental Insurance Co., 6 A.S.R.2d 135.

Duty of a person who seeks affirmative relief from a court to obey the court's orders cannot be avoided by the device of designating another person as "attorney in fact" with power to secure affirmative judicial relief for the principal but not to subject the principal to liability arising from the same controversy in which judicial relief is sought. Te'o v. Continental Insurance Co., 6 A.S.R.2d 135.

Party who enters an appearance in pending action, not only objecting to court's exercise of jurisdiction over property but also asserting arguments on the merits of the action, thereby subjects himself to the court's jurisdiction notwithstanding his characterization of his appearance as "special." In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Appearance of licensed attorney appointed as "attorney in fact" by principal outside court's territorial jurisdiction, asserting the principal's ownership of property within territorial jurisdiction and seeking affirmative relief, afforded an independent ground of jurisdiction over the principal and his property. In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Judgment against defendant who had not been properly served by publication would be null and void, since court would not have obtained jurisdiction over defendant. In re Three Minor Children, 10 A.S.R.2d 57.

Although court may have in personam jurisdiction to order a party to convey to another party a deed to property in another state, it cannot directly affect or determine title to that real property. Godinet v. Godinet (Mem.), 11 A.S.R.2d 156.

Appellant who had sufficiently invoked the remedial powers of the court had subjected himself to its jurisdiction so that the trial court's exercise of such jurisdiction did not violate due process. Tedrow v. Manuma, 12 A.S.R.2d 51.

Defendant's motion to dismiss for lack of in personam jurisdiction would be continued in order to allow discovery on the issues of fact pertaining to jurisdiction, in light of the early posture of the case and of the contentions of plaintiff that he had not had sufficient time to meet the allegations set forth in defendant's affidavits denying jurisdiction and that defendant would not be unduly prejudiced by the resulting delay. T.C.R.C.P. 12(b)(2). Patau v. Rosendahl Corp., 12 A.S.R.2d 66.

Action had "sufficient minimum contacts" with territory, and territorial court was a convenient forum for litigation, where plaintiff seamen, who were foreign nationals employed by a foreign corporation, alleged that defendant had flown them to the territory to begin their employment and that the voyages on which alleged wrongful acts had taken place had begun and ended in the territory. Devera v. Tong Sheng Co., Ltd (Mem.), 14 A.S.R.2d 98.

Entry of an appearance by counsel, the raising of defenses on the merits without objection to the Court's jurisdiction, and active participation in a trial on the merits would generally be regarded as a waiver of any waiveable jurisdictional defenses. Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20.

To properly assert personal jurisdiction over a nonresident, the long arm statute of the proposed forum must permit the exercise of jurisdiction under the particular facts of the case and such exercise of jurisdiction must satisfy the demands of due process. Patau v. Rosendahl Corporation, 16 A.S.R.2d 96.

In order to subject a nonresident defendant to a judgment in personam, due process requires that he have certain minimum contacts with the forum such that maintaining the suit does not offend traditional notions of fair play and substantial justice. Patau v. Rosendahl Corporation, 16 A.S.R.2d 96.

Minimum contacts needed for due process require that a defendant must have performed some act by which he purposefully availed himself of the privilege of conducting activities within the forum, thus invoking the benefits and protection of its laws. Patau v. Rosendahl Corporation, 16 A.S.R.2d 96.

Minimum contacts required for due process insure that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts or because of the unilateral activity of another party or third person. Patau v. Rosendahl Corporation, 16 A.S.R.2d 96.

Jurisdiction is proper where the minimum contacts proximately result from actions of the defendant himself that are purposefully directed toward the forum and create a substantial connection with it. Patau v. Rosendahl Corporation, 16 A.S.R.2d 96.

Minimum contacts required by due process to assert personal jurisdiction were not satisfied where defendant neither designed nor manufactured the machinery alleged to have injured plaintiff in American Samoa, but merely installed piping for the machinery according to third party plans when such machinery was previously installed in another location. Patau v. Rosendahl Corporation, 16 A.S.R.2d 96.

A court may extend personal jurisdiction over persons or businesses on the basis of their contacts with American Samoa. A.S.C.A. § 3.0103(b). Pene v. Bank of Hawaii, 19 A.S.R.2d 52.

A court may exercise personal jurisdiction in civil cases over persons who either reside or are found in American Samoa, have been duly summoned, or voluntarily appear. A.S.C.A. § 3.0103(a). Pene v. Bank of Hawaii, 19 A.S.R.2d 52.

A plaintiff established a prima facie case of jurisdiction over a defendant company when the verified complaint alleges facts from which it is reasonably inferred that some or all of the underlying transactions with the defendant occurred in American Samoa and when other business entities are under the supervision and control of defendant's agents and directors. Taiwan Simon Enterprises Co. v. Kao Ya Fisheries Co., 22 A.S.R.2d 13.

Service is made upon a partnership or other unincorporated association by delivering a copy of the summons and complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or law to receive service, pursuant to T.C.R.C.P. Rule 4(d)(3). As such a partnership may be served by serving a person with substantial authority and responsibility over its activities. Pago Petroleum Products, Inc., v. Ye Ahn Moolsoan, Ltd., 25 A.S.R.2d 14.

Service on a representative of a partnership is valid only with respect to the partnership, and does not confer jurisdiction over a partner individually. Jurisdiction over each partner must be acquired by service on a person or entity representing the partner for process purposes. Pago Petroleum Products, Inc., v. Ye Ahn Moolsoan, Ltd., 25 A.S.R.2d 14.

§ 1(3) —Subject Matter Jurisdiction

Village magistrates have jurisdiction to hear civil matters between natives when amount in dispute does not exceed ten dollars. Toomata v. Railey, 1 A.S.R. 623.

Village court must dismiss action for debt against Samoan brought by foreigner on behalf of foreigner because it does not have jurisdiction. Toomata v. Railey, 1 A.S.R. 623.

Defendant in civil action cannot waive lack of subject matter jurisdiction of court. Toomata v. Railey, 1 A.S.R. 623.

Where petitioner brings complaint seeking injunction against decision of Election Board and order of Election Commission, court has jurisdiction since petitioner has no other recourse, and court will hear case even though proper action would have been writ of certiorari. Tuia v. Yandall, 4 A.S.R. 559.

High Court has subject matter jurisdiction in case involving contested senatorial election by county council if: 1) the case arises under the constitution, laws or treaties; 2) it involves case or controversy; 3) the cause is described in Jurisdictional Statute. A.S. Const. Art. III, § 1; R.C.A.S. § 3.0304. Meredith v. Mola, 4 A.S.R. 773.

If claim for relief in case involving contested senatorial election requires construction of Samoan constitution, court will assume subject matter jurisdiction since claim to legislative seat is case or controversy and within general jurisdictional statute. A.S. Const. Art. II, § 1; R.C.A.S. § 3.0304. Meredith v. Mola, 4 A.S.R. 773.

Court will assume jurisdiction of suit involving political right if constitution does not specifically grant adjudicatory power to legislative power to make such determination. A.S. Const. Art. II, § 22. Meredith v. Mola, 4 A.S.R. 773.

If jurisdictional criteria are met, court will consider claim to legislative seat despite constitutional provision granting legislative powers to judge elections and qualifications of its members. A.S. Const. Art. II, § 22. Meredith v. Mola, 4 A.S.R. 773.

Court has subject matter jurisdiction of claim that petitioner was duly elected and qualified to sit in Fono. Tuitasi v. Lualemaga, 4 A.S.R. 798.

Statute of limitations does not extinguish right of action, but disallows remedy through courts. Haleck v. Scanlan, 4 A.S.R. 841.

Assertion of jurisdiction by the National Labor Relations Board over complaints charging unfair labor practices by employers in American Samoa precludes territorial court from exercising jurisdiction over such complaints. 29 U.S.C. § 164(c). Su'a v. Star Kist Samoa, Inc., 4 A.S.R.2d 135.

The distance between American Samoa and the NLRB regional office in San Francisco, and consequent expense and inconvenience of bringing complaints there, were not "interests so deeply rooted in local feeling and responsibility" that territorial court could exercise jurisdiction over complaints that would otherwise be within the exclusive jurisdiction of the National Labor Relations Board. Su'a v. Star Kist Samoa, Inc., 4 A.S.R.2d 135.

Where (1) court had jurisdiction over judgment debtor and her property; (2) attorney who represented judgment debtor had successfully petitioned the court for appointment as "special guardian" of judgment debtor's minor children for the purpose of selling real estate conveyed by her to the children and retaining funds in his trust account pending court approval of their disposition; and (3) same attorney had been designated by judgment debtor's husband as "attorney in fact" to sell a house located on the land, court had jurisdiction to determine whether the proceeds from sale of the house were part of the proceeds from sale of the land and to enjoin removal of the proceeds from the territory pending such determination, even though husband was neither a named party to the action nor personally amenable to service of process in the territory. Te'o v. Continental Insurance Co., 6 A.S.R.2d 135.

First amendment prohibits court from assuming jurisdiction to review church electoral processes or other disputes concerning church policy and church administration. U.S. Const. amend. 1. Ofa v. Tongan Wesleyan Church, 8 A.S.R.2d 110.

Under statute requiring election appeals to be filed by 4:30 p.m. on the seventh calendar day following the election, court had no jurisdiction over an appeal filed at 8:00 p.m. on the seventh day. A.S.C.A. § 6.0903(a). Tuika v. Chief Election Officer, 9 A.S.R.2d 57.

Statutory requirement that parties submit a land dispute to the Office of Samoan Affairs before applying to the court for relief applies only to communal lands, and therefore did not deprive the court of jurisdiction over a dispute concerning individually owned lands. A.S.C.A. § 43.0302. Sese v. Leota, 9 A.S.R.2d 136.

Jurisdictional requirement that plaintiff must "file with his complaint a certificate" from office of territorial official, certifying that the parties have met twice and that the meetings did not result in a resolution of the dispute, was met where such a certificate was filed, notwithstanding evidence that an earlier letter by the same official tended to negative the existence of an irreconcilable dispute. A.S.C.A. § 43.0302. Leota v. Sese, 12 A.S.R.2d 18.

Letter from territorial official charged with mediating land disputes, stating the outline of a proposal by one of the parties but not even hinting that the other parties had ever agreed to the proposal, did not negate the existence of an irreconcilable dispute among the parties. A.S.C.A. § 43.0302. Leota v. Sese, 12 A.S.R.2d 18.

Statute requiring mediation of disputes over communal land did not apply to dispute over land which trial court concluded, consistently with the record before it, to be individually owned. A.S.C.A. § 43.0802. Leota v. Sese, 12 A.S.R.2d 18.

Motion for dismissal of action for lack of subject matter jurisdiction of the High Court of American Samoa, which went not to the jurisdiction of the court itself but to the bringing of the action in the trial division rather than the land and titles division, was without merit, as the appropriate remedy was not dismissal but transfer to the proper division; because the same judges sit in both divisions, the most important practical consequence of such a transfer would be a change in case number. Hunkin v. Grisard (Mem.), 13 A.S.R.2d 38.

According to Tax Court rule, a 90-day notice must have been issued for the court to have jurisdiction in a deficiency proceeding initiated by a taxpayer. United States Tax Court Rule 13(a). Klauk v. American Samoa Government, 13 A.S.R.2d 52.

For a trial court to have subject matter jurisdiction over actions arising under the Government Tort Liability Act, an administrative claim must first be made and either denied or ignored for three months. A.S.C.A. § 43.1205(a). Mataipule v. Tifaimoana Partnership, Ltd. (Mem), 14 A.S.R.2d 100.

Where a suit filed under the Government Tort Liability Act has a jurisdictional defect which is cured while the suit is pending, the court will not dismiss the suit and require plaintiff to refile since to do so would be a needless and wasteful exercise. Mataipule v. Tifaimoana Partnership, Ltd. (Mem), 14 A.S.R.2d 100.

The statutory deadline for filing motions for reconsideration or new trial is jurisdictional; if no such motion is filed within the requisite ten days, the Court no longer has the power to reconsider or amend its judgment and the losing party no longer has a right to appeal. A.S.C.A. § 43.0802(a) In re Matai Title Muagututi`a, 15 A.S.R.2d 1.

Since the only difference between a three-judge panel sitting as the Land and Titles Division and the same three judges sitting as the Trial Division is whether the case is styled "CA" or "LT", a final decision by one division is not subject to attack on jurisdictional grounds. Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20.

Although the California family court which granted divorce judgment retained jurisdiction to enforce the judgment and the parties to that judgment could move to enforce it in that California court, High Court was not precluded from enforcing the judgment under the Uniform Enforcement of Foreign Judgments Act where both parties currently resided in American Samoa. A.S.C.A. § 43.1701 et seq. Huff v. Huff, 15 A.S.R.2d 83.

Statutory requirement that petition for redetermination of deficiency of income taxes be made within 90 days after notice of deficiency was mailed is jurisdictional. 26 U.S.C. § 6213(a); A.S.C.A. § 11.0401. Stephens v. American Samoa Government, 15 A.S.R.2d 87.

The High Court, while sitting as a Tax Court for deficiency proceedings, does not have jurisdiction to hear such a deficiency proceeding unless it was filed within the statutory deadline; while sitting as a District Court for refund cases, it lacks jurisdiction until there has been payment or collection of disputed taxes. 26 U.S.C. § 7422; A.S.C.A. § 11.0409. Stephens v. American Samoa Government, 15 A.S.R.2d 87.

For the purpose of foreclosing a ship's preferred mortgage lien, the High Court is considered a "district court" and thus has jurisdiction to enforce such a lien. 46 U.S.C. §§ 31301(2)(E), 31325-26. United Airlines Employee Credit Union v. M/V Sans End, 15 A.S.R.2d 95.

Under the Government Tort Liability Act, a party may not sue the government in tort until after he files an administrative claim with the Attorney General which is either still pending or denied within three months of its filing. A.S.C.A. §§ 43.1201 et seq. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48.

Requirement that an administrative claim first be filed is a jurisdictional prerequisite to suit under the Government Tort Liability Act. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48.

Claim under the Government Tort Liability Act accrues when an administrative claim is denied. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48.

Cause of action accrues under the Government Tort Liability Act when the administrative remedies under the Act are exhausted, because plaintiff cannot seek judicial relief until then. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48.

Where a party to a divorce decree issued by the High Court which provided for custody and support of the parties' minor children and a property settlement later sought to modify the decree when the parties no longer lived in American Samoa, the Court declined to exercise jurisdiction on the issues of child support and custody, since the courts of domicile or residence could more effectively enforce terms ensuring the children's welfare and best interests and had a more substantial interest in doing so. Mahoney v. Mahoney, 16 A.S.R.2d 109.

Where a party to a divorce decree issued by the High Court which provided for a property settlement later sought to modify the decree when the parties no longer lived in American Samoa, the Court asserted jurisdiction regarding the property issue since the property in question was still located in American Samoa. Mahoney v. Mahoney, 16 A.S.R.2d 109.

A final decision in a case in which the Court had jurisdiction over the subject matter and the parties, and in which the parties had a fair opportunity to address the issues, has the force of law and binds the parties even though it may be an erroneous decision; such a decision is not rendered "void" even if it conflicts with precedent or a non-jurisdictional statute. T.C.R.C.P. 60(b)(4). Saufo`i v. American Samoa Government, 16 A.S.R.2d 71.

Since the rule relating to the timely manner for ordering a transcript of proceedings on appeal is not jurisdictional, the court may grant additional time to comply with its requirements. A.C.R. 10(b). Opapo v. Puailoa, 17 A.S.R.2d 30.

Where a motion for reconsideration has been filed after the statutory deadline, the Appellate Division has no jurisdiction to entertain an appeal regardless of any arguments, equitable or otherwise. A.S.C.A. § 43.0802. Lualemana v. Asifoa, 18 A.S.R.2d 49.

Although the statute does not provide a remedy for a situation in which, due to an error on the part of a Court employee or a theft from counsel's Court box a litigant does not receive notice of the judgment until after the ten-day deadline, the Court might, in extraordinary situations, entertain a T.C.R.C.P Rule 60(b) motion and vacate the previous order dismissing the motion for reconsideration for lack of jurisdiction. A.S.C.A. § 43.0802. T.C.R.C.P. Rule 60(b). Lualemana v. Asifoa, 18 A.S.R.2d 49.

If issued by a court having jurisdiction over the parties and the subject matter, an order requiring the Registrar to issue a land-registration certificate is binding on the parties and their successors in interest and can be vacated only in the most extraordinary and compelling of circumstances. T.C.R.C.P. 60(b). Ava v. Logoai, 19 A.S.R.2d 75.

ASG waived the statute of limitations applicable to the Government Tort Liability Act when it did the following: filed an answer which affirmatively admitted that the Court had jurisdiction over the parties and the subject matter; vigorously litigated the merits of the action for several years; required the defendant to undergo a deposition and to answer numerous interrogatories, requests for production of documents, and requests for admissions; sought and obtained affirmative relief from the Court by filing what amounted to a mandatory counterclaim, a permissive counterclaim, and another permissive counterclaim on behalf of a wholly-owned entity; and effectively reduced one of these claims to a substantial judgment. A.S.C.A. § 43.1204. Randall v. American Samoa Gov't, 19 A.S.R.2d 111.

The two-year statute of limitations applicable to the Government Tort Liability Act is not a jurisdictional prerequisite but is a statute of limitations, an affirmative defense which is waived if not affirmatively pled by the defendant. A.S.C.A. § 43.1204. Randall v. American Samoa Gov't, 19 A.S.R.2d 111.

The usual reason given for construing statutes of limitation for suits against the United States Government as jurisdictional (i.e., not subject to waiver and/or tolling)--that the limitations are deemed an integral part of the initial waiver of sovereign immunity, which should not be extended by courts beyond the intent of Congress--does not apply to ASG. Randall v. American Samoa Gov't, 19 A.S.R.2d 111.

An administrative claim is a jurisdictional prerequisite to a suit against ASG under the Government Tort Liability Act. A.S.C.A. §§ 43.1201 et seq. Rakhshan v. American Samoa Government, 20 A.S.R.2d 1.

A required certificate of irreconcilable conflict by the Secretary of Samoan Affairs or his deputy is a jurisdictional mandate without which an action should not proceed. Ava v. Logoa'i, 20 A.S.R.2d 51.

All assets of the marital estate, including assets held outside of the Territory, are subject to the court's jurisdiction, although the court may not have jurisdiction to enforce an award of real property in another forum. Rocha v. Rocha, 20 A.S.R.2d 63.

The requirement of filing an administrative claim before filing suit under the Government Tort Liability Act is jurisdictional. A.S.C.A. § 43.1205. Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 23.

Although based on the Federal Tort Liability Act, the territorial Government Tort Liability Act does not contain the former's exception for third-party complaints from the requirement that an administrative-claim is a prerequisite to filing suit. 28 U.S.C. § 2675; A.S.C.A. § 43.1205. Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 23.

Though modelled on the Federal Tort Claims Act, as amended in 1966, the territorial Government Tort Liability Act does not contain the F.T.C.A.'s exception from the administrative-claim prerequisite for a cause of action asserted by third-party complaint, cross-claim, or counterclaim. 28 U.S.C. § 2675(a); A.S.C.A. § 43.1205(a). Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 88.

The High Court cannot enjoin proceedings in other jurisdictions in a limitation-of-liability proceeding, because the federal statute restricts jurisdiction to federal district courts and because neither the territorial legislature nor the court's rules can extend the court's jurisdiction to encompass proceedings in other jurisdictions. 46 U.S.C. §§ 145, 181 et seq.; T.C.R.C.P. Rule F(1). In re Complaint of Voyager, Inc., 23 A.S.R.2d 47.

Although the Attorney General's decision on an administrative claim is final and conclusively binding on all ASG officers, except when procured by fraud, his action cannot result in a waiver or estoppel preventing ASG from raising a jurisdictional issue at any stage of future litigation. A.S.C.A. § 43.1206. Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55.

The sum-certain requirement for administrative claims filed against ASG is both statutorily and administratively an integral part of the jurisdictional administrative-claim process. A.S.C.A. § 43.1203(c); A.S.A.C. § 43.0103(a). Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55.

A "void" judgment, from which relief may be granted, is one in which a court lacked the power to enter the judgment, as when a court lacked jurisdiction over the parties or the subject matter, violated "due process of law," or engaged in "a plain usurpation of power." Fed. R. Civ. P. 60(b)(4); T.C.R.C.P. Rule 60(b)(4). Reid v. Puailoa, 23 A.S.R.2d 144.

Under the dead-ship doctrine, a vessel which has been permanently removed from navigation (and so is a "dead" ship) does not attract liens of a maritime nature, and any watercraft deemed to be "dead" are outside a court's admiralty jurisdiction. Southwest Marine of Samoa, Inc. v. M/V Kwang Myong #71, 24 A.S.R.2d 152.

The High Court has jurisdiction over monetary claims exceeding $5,000, pursuant to A.S.C.A. § 3.0208(a)(1), but in calculating the amount in controversy, attorney's fees expressly provided for by contract, and interest accrued prior to the commencement of the action may be included. Non‑contractual attorneys fees and other incidental costs may not be included in the calculation. Jessop v. Hisatake, 25 A.S.R.2d 12.

Since no statute or administrative rule compels the referral of objections to document registration to the Secretary of Samoan Affairs, the Territorial Registrar should not automatically make such referrals when such objections arise. Such cases are properly forwarded to the Secretary only if referrals are required by statute, by administrative rule, by orders of the Land Commission on a case‑by‑case basis, or pursuant to specific authority delegated to the Registrar by the Land Commission. The land Commission should establish policies and criteria for making such referrals. Tuitasi v. Lauofo, 25 A.S.R.2d 57.

A judgment of the Trial Division remains in the jurisdiction of the Trial Division, and attempts to enforce the judgment should be made at the trial level, not in the Appellate Division. Paisano's Corp. v. Blue Pacific Management Corp., 25 A.S.R.2d 75.

The High Court lacks jurisdiction to block enforcement of federal tax laws. Alamoana Recipe, Inc., v. American Samoa Gov't, 25 A.S.R.2d 97.

The trial court retains discretion to adjudicate claims that were not pleaded. Estate of Fuimaono, 25 A.S.R.2d 110.

A divorce decree which is final between the parties does not, and cannot, foreclose the possibility of ownership interests by others who were not parties to the decree, and a trial court is properly empowered to adjudicate those interests. Reine v. Taotoai, 25 A.S.R.2d 136.

When a statute prescribes administrative remedies which must be exhausted before judicial review is allowed, these procedures are jurisdictional. McGuire v. Zoning Board, 26 A.S.R.2d 59.

The Zoning Board, and not this court, has the jurisdiction to decide the issues, at the administrative level, where court has already determined that it lacked jurisdiction to decide these issues based on party's failure to exhaust administrative remedy. McGuire v. Zoning Board, 26 A.S.R.2d 69.

The court will not retroactively dismiss a lawsuit for lack of jurisdiction when it presently has jurisdiction. The time for the motion to dismiss for lack of jurisdiction was during the time that the court did not have jurisdiction. Randall v. American Samoa Gov't, 28 A.S.R.2d 70.

Controversies relating to land are under the exclusive jurisdiction of the Land and Titles Division. A.S.C.A. § 3.03089(b). Meredith v. Koko, 28 A.S.R.2d 149.

A defendant's claim of communal land, even though in defense, invokes the prerequisite filing of a certificate of irreconcilable dispute issued by the Secretary of Samoan Affairs or his deputy. Meredith v. Koko, 28 A.S.R.2d 149.

The power of a court of equity to appoint a trustee in a proper case is part and parcel of its general jurisdiction and control over trust estates. The court can exercise this power very broadly. The court may also make necessary orders to protect the property of such trust. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

The defense of lack of subject matter jurisdiction is properly asserted under Rule 12(b)(1), not Rule 12(b)(6). Lagapagatele v. Lagapagatele, 2 A.S.R.3d 195 (Land & Titles Div. 1998).

Once the issue of subject matter jurisdiction is raised, the burden of establishing it always rests on the party asserting jurisdiction. Lagapagatele v. Lagapagatele, 2 A.S.R.3d 195 (Land & Titles Div. 1998).

Where Court lacked subject matter jurisdiction it would not consider defense of expiration of the statute of limitations. Lagapagatele v. Lagapagatele, 2 A.S.R.3d 195 (Land & Titles Div. 1998).

Under the Jurisdictional Immunities of Foreign States Act, 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. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

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. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

In order to satisfy the exception to immunity under the Jurisdictional Immunities of Foreign States Act, the alleged conduct must be a commercial activity, in which a private actor could take part; and there must be a nexus between the plaintiffs’ action and the commercial activity. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

Where foreign, government-related entities recruited, exported, and employed workers in a for-profit garment manufacturing company in American Samoa, such actions clearly constituted commercial activity in which a private actor could equally participate and was the premise of the workers’ lawsuit. Therefore, such entities were not immune to suit under the Jurisdictional Immunities of Foreign States Act. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

Subject matter jurisdiction, rights of actions, and causes of action are three very different concepts. Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

Subject matter jurisdiction speaks to a court’s power to adjudicate a case. Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

In deciding a motion to dismiss for lack of subject matter jurisdiction, the burden of proof is on the party claiming jurisdiction. Affidavits and other supporting material may be used to challenge or prove subject matter jurisdiction. Ainu’u v. Ainu’u, 7 A.S.R.3d 158 (Trial Div. 2003).

§ 1(4) —Issues Related to Federal Jurisdiction

Court is not bound by Federal Rules of Civil Procedure in cases involving title to land or Matai title disputes, and therefore, findings of fact and conclusions of law are not required. In re Matai Title “Tuiolesega,” 1 A.S.R.2d 37 (Land & Titles Div. 1980).

The filing of a Chapter 11 bankruptcy petition in a United States District Court prevents the High Court from subsequently obtaining jurisdiction over property of the petitioner. 11 U.S.C. § 362(a). Rainwater v. The Sea Encounter, 3 A.S.R.2d 87.

Assertion of jurisdiction by the National Labor Relations Board over complaints charging unfair labor practices by employers in American Samoa precludes territorial court from exercising jurisdiction over such complaints. 29 U.S.C. § 164(c). Su'a v. Star Kist Samoa, Inc., 4 A.S.R.2d 135.

The distance between American Samoa and the NLRB regional office in San Francisco, and consequent expense and inconvenience of bringing complaints there, were not "interests so deeply rooted in local feeling and responsibility" that territorial court could exercise jurisdiction over complaints that would otherwise be within the exclusive jurisdiction of the National Labor Relations Board. Su'a v. Star Kist Samoa, Inc., 4 A.S.R.2d 135.

Territorial court would defer as a matter of comity or full faith and credit to the lawful orders of a court of the United States properly exercising its jurisdiction even if there were no federal statute requiring it to do so. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 6 A.S.R.2d 62.

Assertion of jurisdiction by the National Labor Relations Board over alleged unfair labor practices preempts territorial court jurisdiction over such claims. 29 U.S.C. § 164(c). Su`a v. Star-Kist Samoa, Inc., 7 A.S.R.2d 58.

While interests "deeply rooted in local feeling and responsibility" may give rise to exceptions to preemption of territorial court jurisdiction by the National Labor Relations Board, the expense and inconvenience to a local resident who must file a complaint at the National Labor Relations Board offices in San Francisco does not constitute such an interest. Su`a v. Star-Kist Samoa, Inc., 7 A.S.R.2d 58.

Termination of employment due to union activity is perhaps the most obvious example of conduct which is federally preempted by the National Labor Relations Act and over which territorial court has no jurisdiction. Su`a v. Star-Kist Samoa, Inc., 7 A.S.R.2d 58.

The Federal Anti‑Injunction Act prevents the High Court, at any level, from restraining the assessment of collection of any federal tax. 26 U.S.C. §§ 876, 7421(a). Alamoana Recipe, Inc., v. American Samoa Government, 25 A.S.R.2d 46.

The Federal Anti‑Injunction Act is applicable to temporary, as well as permanent pleas for injunctive relief. Alamoana Recipe, Inc., v. American Samoa Government, 25 A.S.R.2d 46.

The High Court lacks jurisdiction to block enforcement of federal tax laws. Alamoana Recipe, Inc., v. American Samoa Government, 25 A.S.R.2d 97.

The High Court lacks jurisdiction to grant relief for unauthorized tax collection by the IRS, since such actions must be brought in a district court of the United States, pursuant to 26 U.S.C. § 7433(a). Alamoana Recipe, Inc., v. American Samoa Government, 25 A.S.R.2d 97.

The time limit for removal to federal district court is 30 days, and this clock begins ticking when a party formally intervenes and becomes a party of record, a process that may be initiated by either party. ASG Employees Federal Credit Union v. Gurr, 26 A.S.R.2d 87.

§ 1(5) —Bankruptcy Jurisdiction

SEE BANKRUPTCY

The filing of a Chapter 11 bankruptcy petition in a United States District Court prevents the High Court from subsequently obtaining jurisdiction over property of the petitioner. 11 U.S.C. § 362(a). Rainwater v. The Sea Encounter, 3 A.S.R.2d 87.

Since there is neither a bankruptcy court in American Samoa nor any provision designating American Samoa as part of any district with a bankruptcy court, there exists no court with jurisdiction to entertain a bankruptcy action when the debtor's residence, domicile, principal place of business, and principal assets are in American Samoa. 11 U.S.C. § 101(49); 28 U.S.C. § 1472. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

The automatic stay of any judicial, administrative, or other proceeding against a debtor who has instituted a bankruptcy reorganization extends to proceedings in the High Court of American Samoa. 11 U.S.C. § 362. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

The acknowledged unfairness to a creditor in the Territory who must travel to the United States in order to pursue his claim against a debtor in bankruptcy who is otherwise amenable to suit locally is not enough to overcome the language and policy of the statute requiring the consolidation of claims against a bankrupt debtor. 11 U.S.C. § 362. Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

Trial court properly held that proceedings before it were automatically stayed when defendant filed bankruptcy petition in another jurisdiction. 11 U.S.C. § 362(a). Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 6 A.S.R.2d 62.

§ 1(6) —Admiralty Jurisdiction

SEE ADMIRALTY § 1 – JURISDICTION AND PROCEDURE

§ 1(7) —Right of Action

Subject matter jurisdiction, rights of actions, and causes of action are three very different concepts. Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

A right of action grants a plaintiff the right to pursue a judicial remedy. Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

§ 1(8) —Cause of Action

Subject matter jurisdiction, rights of actions, and causes of action are three very different concepts. Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

A cause of action refers to recognized legal rights upon which a litigant bases his claim for relief. Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

§ 1(9) —Rules of Civil Procedure Generally

Term “natural justice and convenience” embraces due process of law, but procedures adopted to accommodate complex litigation which do not prejudice the opportunity of any party to be fully and effectively heard and do not offend due process. Te’o v. Fanene, 1 A.S.R.2d 3 (App. Div. 1980).

Although the rules of the courts of American Samoa are based on, and in many instances identical to, federal court rules, American Samoa courts are not bound to interpret their own rules in conformity with every judicial gloss that has been written on the federal rules. Am. Samoa Gov’t v. NTV Electronics, 6 A.S.R.3d 289 (Trial Div. 2002).

§ 1(10) —Affidavits

In order to constitute a proper affidavit, the document must contain certain component parts, consisting of: (1) the caption or title; (2) the venue; (3) the affiant’s signature; and (4) a certificate evidencing the fact that the affidavit was properly made before a duly authorized officer. Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

Affidavits must be signed in the presence of the notary, as an authorized official, to assure the affiant’s identity. Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

The court will sanction attorneys who are proven to have falsely acknowledged affidavits or submitted false papers to the court. Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

§ 2 Service of Process

§ 2(1) —General Provisions

Awards for alimony and child support must be predicated upon in personam jurisdiction, which cannot constitutionally be had, except in unusual circumstances, in the absence of personal service of process within the court’s discretion. Tafaoa v. Tafaoa, 1 A.S.R.2d 68 (Trial Div. 1982).

Natural father's parental rights cannot be terminated without compliance with statutory requirements, including that diligent efforts be made to give actual notice. In re A Minor Child, 4 A.S.R.2d 181.

A party seeking the termination of parental rights must provide notice to the child's natural father, either by the statutorily approved method, or by publication if permitted by court order. In re A Minor Child, 4 A.S.R.2d 181.

Court is reluctant to issue order affecting the rights of absent parties without affording them prior notice and opportunity to be heard. S.W. California Production Credit Association v. The Vessel Conquistador (Mem.), 11 A.S.R.2d 7.

Court may disregard land registrations if the failure to give statutory notice appears in the registration record itself. A.S.C.A. § 37.0101 et seq. Afualo v. Fanene, Pualioa v. Afualo, 15 A.S.R.2d 48.

Courts may disregard land registrations if the failure to give notice, as required by statute, appears in the registration record itself. A.S.C.A. § 37.0101 et seq. Fa`aaua`a v. Tauiliili, 15 A.S.R.2d 71.

A collateral attack of an in rem judgment is permissible if notice in the first case was defective. Asifoa v. Faoa, 21 A.S.R.2d 91.

The district court is authorized to issue process, and an arrest warrant is a form of process. A.S.C.A. § 3.0304, T.C.R.Cr.P. 4(c)(1). American Samoa Gov't v. Meleisea, 24 A.S.R.2d 32.

The district court is authorized to issue process, and an arrest warrant is a form of process. A.S.C.A. § 3.0304, T.C.R.Cr.P. 4(c)(1). American Samoa Gov't v. Tagaloa, 24 A.S.R.2d 37.

When a petitioner files an affidavit that personal service cannot be made upon a respondent in a divorce action within American Samoa, due to nonresidency or unknown residency, service of process may be made by publication or registered mailing. A.S.C.A. §§ 43.0501-43.0504; T.C.R.C.P. 4(e), 12(a). Pula v. Pula, 24 A.S.R.2d 93.

When personal service cannot be made upon a respondent in a divorce action within American Samoa, a petitioner may apply for an order authorizing issuance of a notice for service by publication, supported by an affidavit or another acceptable, verified statement of nonresidency or unknown residency. A.S.C.A. §§ 43.0501-43.0504; T.C.R.C.P. 4(e). Pula v. Pula, 24 A.S.R.2d 151.

Service is made upon a partnership or other unincorporated association by delivering a copy of the summons and complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or law to receive service, pursuant to T.C.R.C.P. Rule 4(d)(3). As such a partnership may be served by serving a person with substantial authority and responsibility over its activities. Pago Petroleum Products, Inc., v. Ye Ahn Moolsoan, Ltd., 25 A.S.R.2d 14.

Service on a representative of a partnership is valid only with respect to the partnership, and does not confer jurisdiction over a partner individually. Jurisdiction over each partner must be acquired by service on a person or entity representing the partner for process purposes. Pago Petroleum Products, Inc., v. Ye Ahn Moolsoan, Ltd., 25 A.S.R.2d 14.

Trial court rules should be construed liberally to effectuate service, especially when the defendant receives actual notice of the suit. Atlantic Pacific Marine, Inc. v. Clarke, 2 A.S.R.3d 136 (Trial Div. 1998).

For purposes of Trial Court Rule 4(d)(1), a person can have more than one dwelling house or usual place of abode. Atlantic Pacific Marine, Inc. v. Clarke, 2 A.S.R.3d 136 (Trial Div. 1998).

Where defendant had lived away from his usual residence for a substantial period of time prior to action being filed, aboard boat he owned and operated, and was actually residing there at time service was made, said vessel constituted a “dwelling house or usual place of abode” for purposes of T.C.R.C.P. 4(d)(1). Atlantic Pacific Marine, Inc. v. Clarke, 2 A.S.R.3d 136 (Trial Div. 1998).

A vessel can qualify as a dwelling house or usual place of abode. Atlantic Pacific Marine, Inc. v. Clarke, 2 A.S.R.3d 136 (Trial Div. 1998).

A crew member aboard a private vessel serves a gate keeping function and constitutes a person “residing therein” under Rule 4(d)(1). Atlantic Pacific Marine, Inc. v. Clarke, 2 A.S.R.3d 136 (Trial Div. 1998).

Where guest had spent at least one night aboard vessel and evidence suggested many more, he was properly considered “residing therein” for purposes of T.C.R.C.P. 4(d)(1). Atlantic Pacific Marine, Inc. v. Clarke, 2 A.S.R.3d 136 (Trial Div. 1998).

The primary function of the service of process rules 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 assertion of jurisdiction over the lawsuit. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

The Jurisdictional Immunities of Foreign States Act contains provisions for the service of process upon foreign governmental instrumentalities and agencies. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

E-mail is usually not a permitted means of service. Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

The court possesses discretion to exclude unserved documents from its consideration. Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

Where party knew of the service requirements under the rules and of the possible penalty for failing to affirmatively show a genuine issue for trial, yet failed to properly serve its opposition papers, Court concluded that such opposition papers would not be considered. Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

§ 2(2) —By Publication

Service by publication should be genuinely calculated to give notice of the pendency of a proceeding and of the consequences of failure to appear. Memorandum of the Justices, 3 A.S.R.2d 33.

Requirements of statute providing for notice by publication to defendant in legal proceeding must be complied with before action against defendant can proceed to trial. A.S.C.A. § 43.0502. In re A Minor Child, 7 A.S.R.2d 24.

Counsel who despite court's notices repeatedly submitted proposed orders and notices that did not comply with requirements of notice by publication statute would be ordered to pay cost of court time consumed in connection with the improper notice, and to refrain from billing his client for time and costs of effecting improper notice. In re A Minor Child, 7 A.S.R.2d 24.

To be genuinely calculated to give notice, service by publication on a person believed to reside in Western Samoa should ordinarily be in a Western Samoa newspaper in the Samoan language, and notice in Samoan should also be mailed to the party at his last known address. A.S.C.A. § 43.0502. In re A Minor Child, 7 A.S.R.2d 125.

Territorial statute allowing service on absent defendants by publication requires three forms of notice: publication in a newspaper, posting in front of the court house, and mailing by registered mail at his last known address. A.S.C.A. § 43.0502(a). In re Three Minor Children, 10 A.S.R.2d 57.

Territorial statute requiring three forms of notice for service by publication on absent defendants requires all three elements, not just one of them. A.S.C.A. § 43.0252(a). In re Three Minor Children, 10 A.S.R.2d 57.

Of three forms of notice required by statute providing for service by publication, attempt to reach the defendant by mail is by far the most important, since it usually offers the likeliest prospect of actual notice. In re Three Minor Children, 10 A.S.R.2d 57.

Judgment against defendant who had not been properly served by publication would be null and void, since court would not have obtained jurisdiction over defendant. In re Three Minor Children, 10 A.S.R.2d 57.

§ 2(3) —By Posting

An affidavit of a posting of notice may be inadequate where: 1) it alleges that notice was posted for thirty-three days, as opposed to the requisite sixty days; 2) it was subscribed before the posting took place and thus was prepared without personal knowledge as to whether the posting actually took place; 3) it does not show the signature of the person qualified to take oaths and so may not have been made under oath; and 4) it states that notice was posted in a village different from that where the deed indicated the land is located. A.S.C.A. § 37.0103(a). Vaimaona v. Tuitasi, 18 A.S.R.2d 88.

Inadequacies of affidavit of posting may be supplemented on remand by testimony showing actual compliance with statutory guidelines. A.S.C.A. § 37.0103(a). Vaimaona v. Tuitasi, 18 A.S.R.2d 88.

§ 2(4) —Under the JIFSA

The Jurisdictional Immunities of Foreign States Act contains provisions for the service of process upon foreign governmental instrumentalities and agencies. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

The Jurisdictional Immunities of Foreign States Act 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. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

With regard to application of the Jurisdictional Immunities of Foreign States Act, the High Court of American Samoa constitutes a court of the United States. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

Service in accordance with the Jurisdictional Immunities of Foreign States Act is made upon a foreign state’s agency or instrumentality 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. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

Individual who served as authorized representative for two foreign government-related entities, who regularly reported to such entities, and who was specifically entrusted to deal with legal matters pertaining to employment of workers from such foreign country, was an “agent” under the Jurisdictional Immunities of Foreign States Act and authorized to receive process on behalf of such entities in employment-related case. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

§ 3 Pleading

§ 3(1) —General Provisions

Under the rules of the High Court, only members of the court’s bar may practice in the High Court and although the High Court may accept briefs from counsel who are not members of its bar, counsel must comply with local rules regarding the filing of motions. In re M/V Ocean Pearl, 2 A.S.R.2d 106 (Trial Div. 1986).

A defense that merely negates some element of the plaintiff's prima facie case need not be affirmatively pled. Development Bank v. Ilalio, 5 A.S.R.2d 110.

A party waives defenses raised in its answer when it fails at trial to offer evidence and arguments in support of those defenses. Development Bank v. Pritchard, 6 A.S.R.2d 125.

Where complaint set forth a single obligation and in a single paragraph demanded the entire principal plus interest and expenses, and where court subsequently granted summary judgment for an amount smaller than the amount demanded in the complaint, the court should not later subdivide the demand into separate claims in order to construe the judgment as having only partly disposed of the case. Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84.

Statute of limitations defense must be properly pled and proven. King v. Commissioner of Revenue, 7 A.S.R.2d 90.

Failure to plead the statute of limitations is a waiver of that defense. King v. Commissioner of Revenue, 7 A.S.R.2d 90.

Requirement that motion must state with particularity the grounds on which it is based is especially important to motion for new trial, one of whose purposes is to avoid unnecessary appeals by alerting the trial court to possible errors or omissions in its opinion. T.C.R.C.P. Rule 7. Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146.

Where debtor did not plead usury as a defense to action on debt, court need not decide whether statutory penalty of forfeiture can be invoked in a civil action. A.S.C.A. § 28.1510. Shantilal Brothers Limited v. K.M.S.T. Wholesales, Inc., 9 A.S.R.2d 62.

Plaintiff could not introduce an alternative basis for government liability at closing argument, since the pleadings had not put defendant on notice to defend against such a claim. Tauiliili v. American Samoa Government, 13 A.S.R.2d 61.

Issue not raised in the pleadings or at trial could not be raised for the first time by motion for new trial. Vaimaona v. Tuitasi (Mem.), 13 A.S.R.2d 76.

Defendant is entitled to come to trial prepared to defend only against the allegations in the verified complaint, not against a new and different set of allegations. Palelei v. Star-Kist Samoa, Inc., 15 A.S.R.2d 120.

If a party does not deny allegations in a complaint, he is deemed to have admitted it. T.C.R.C.P. 8(d). Beaver v. Craven, 19 A.S.R.2d 14.

Even though the failure to plead in its answer the statute of limitations applicable to the Government Tort Liability Act could not be characterized as a waiver with respect to any future amendment of the complaint, ASG was estopped from raising the statute of limitations with respect to an amended complaint when the same combination of defenses raised in its motion to dismiss could have been raised in its answer to the original complaint five years earlier, but the government instead vigorously litigated on the merits for several years and also sought affirmative relief from plaintiff by way of counterclaims and cross-claims. A.S.C.A. § 43.1204. Randall v. American Samoa Gov't, 19 A.S.R.2d 126.

A court must treat issues that the parties have impliedly or expressly consented to try as having actually been raised in the pleadings, and thus as not waived by the failure to plead. Fed. R. Civ. P. 8, 15; T.C.R.C.P. 8, 15. Alofipo v. Va, 21 A.S.R.2d 69.

The trial court retains discretion to adjudicate claims that were not pleaded. Estate of Fuimaono, 25 A.S.R.2d 110.

T.C.R.C.P. 7(b)(1) requires that an application to the court for any order shall be by motion which shall state with particularity the grounds therefore. In re Matai Title "Lolo", 26 A.S.R.2d 46.

In determining whether matter is scandalous such that the court should strike it from a motion, it is not enough that the matters complained of merely offend the complainor's sensibilities if they relate to issues relevant to the defense. T.C.R.C.P. 12(f). Lacambra v. Lacambra, 28 A.S.R.2d 114.

T.C.R.C.P. Rule 12(f) only permits the court to strike scandalous material from a "pleading" and not from a motion. Rakshan v. American Samoa Gov't, 28 A.S.R.2d 151.

Where court granted motion for reconsideration, vacating order denying motion to quash service of process, court’s actions did not dismiss or alter answer previously filed by defendant, even though said answer was filed after the court’s original order on motion to quash service. Atlantic Pacific Marine, Inc. v. Clarke, 2 A.S.R.3d 136 (Trial Div. 1998).

A Motion for Judgment on the Pleadings should be granted only when the merits can be determined. Lagapagatele v. Lagapagatele, 2 A.S.R.3d 195 (Land & Titles Div. 1998).

A court will not find implied consent to try an unpled issue where the party is prejudiced or unfairly surprised by the introduction of evidence outside the scope of the pleadings. Samoa Sharkfin Trading Co. v. Hong, 3 A.S.R.3d 36 (App. Div. 1999).

Where party had notice that unpled claim would be raised at trial, he could not claim unfair surprise by it being so tried. Samoa Sharkfin Trading Co. v. Hong, 3 A.S.R.3d 36 (App. Div. 1999).

Where party had opportunity to raise any and all known legal defenses to unpled claim at trial, but chose instead to deny the claim, he could not claim prejudice resulting from Court’s allowing unpled claim to be tried. Samoa Sharkfin Trading Co. v. Hong, 3 A.S.R.3d 36 (App. Div. 1999).

Where respondent had not filed an answer in response to petition for review of order, such omission did not require court to give judgment in petitioner’s favor, as rule requiring timely filing of answer imposed no sanction for its violation. Island’s Choice, Inc. v. American Samoa Gov't, 5 A.S.R.3d 3 (App. Div. 2001).

In filing a memorandum only via facsimile, a party fails to meet the original signature requirement of T.C.R.C.P. 11. Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

§ 3(2) —Liberal Construction

High Court must construe pleadings so as to do substantial justice and therefore will occasionally permit pleadings that do not comply strictly with formal requirements. T.C.R.C.P. Rule 8(f). Development Bank v. Ilalio, 5 A.S.R.2d 110.

Principle that the court will construe pleadings so as to do substantial justice applies specifically to the requirements of affirmative and particular pleadings. T.C.R.C.P. Rules 8(f), 8(c), 9(b). Development Bank v. Ilalio, 5 A.S.R.2d 110.

Pro se pleadings should be construed to state a cause of action or a valid defense unless 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. Development Bank v. Ilalio, 5 A.S.R.2d 110.

Pro se defendants' pleadings describing the facts and theories of their position were fully adequate despite their failure to use the usual legal terminology. Development Bank v. Ilalio, 5 A.S.R.2d 110.

Rule directing liberal construction of pleadings when necessary to promote justice takes on added importance when pleading party is appearing pro se. American Samoa Government v. Agasiva, 6 A.S.R.2d 32.

When plaintiffs' pleadings asked for damages for the death of their child in terms of "emotional distress," the trial division properly treated the suit as an action for wrongful death. A.S.C.A. §§ 43.5001 et seq. Saufo'i v. American Samoa Gov't, 19 A.S.R.2d 54.

Although a pro se complaint should be broadly construed in the interest of justice, the complaint must nevertheless state a claim upon which judicial relief can be granted. Rakhshan v. American Samoa Government, 20 A.S.R.2d 1.

Although a claim under the survival statute was not plead with specificity, the liberal rules of pleading allows the claim when the cause of action was sufficiently noticed. Utu v. American Samoa Government, 20 A.S.R.2d 53.

If an unpleaded defense is introduced at trial without objection, the pleadings will be treated as though they had actually raised the issue; in the absence of such implicit consent, a court has the discretion to permit the amendment of pleadings over objection to conform to the evidence at trial. Fed. R. Civ. P. 15(b), T.C.R.C.P. 15(b). Alofipo v. Va, 21 A.S.R.2d 69.

When a party mistakenly designates a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. T.C.R.C.P. 8(c). Jennings v. Jennings, 22 A.S.R.2d 10.

Although a court has an obligation to liberally construe pleadings to avoid injustice, this does not extend to refashioning a plaintiff's theory of relief in order to withstand a motion to dismiss for failure to state a claim upon which relief can be granted. T.C.R.C.P. 12(b)(6). Mackenzie v. Lutali, 24 A.S.R.2d 75.

The Trial Court Rules of Civil Procedure only require a short, plain statement that the pleader is entitled to relief, and pleadings are to be construed liberally so as to do substantial justice. T.C.R.C.P. 8(a)(1), 8(e)(1), 8(f). Morgan v. American Samoa Government, 24 A.S.R.2d 164.

The pleadings of a pro se plaintiff not learned in the law should be construed to state a cause of action unless the litigant can prove no facts which would entitle him to relief. Morgan v. American Samoa Government, 24 A.S.R.2d 164.

It is within the court's discretion to treat an argument misdesignated as an affirmative defense, as if it had been properly pleaded as a compulsory counterclaim. T.C.R.C.P. Rule 8(c). Jennings v. Thompson, 25 A.S.R.2d 77.

Issues not raised by the pleadings but nonetheless tried by the implied or express consent of the parties are treated in all respects as if they had been raised in the pleadings. Samoa Sharkfin Trading Co. v. Hong, 3 A.S.R.3d 36 (App. Div. 1999).

A complaint alleging defamation in a letter requesting investigation by the Attorney General states no cause of action because such a request is absolutely privileged. Mulitauaopele v. American Samoa Gov’t and Tax Office, 4 A.S.R.3d 86 (Trial Div.2000).

Although a plaintiff’s allegations may be vague, pro se pleadings are 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. Mulitauaopele v. American Samoa Gov’t and Tax Office, 4 A.S.R.3d 86 (Trial Div. 2000).

The court will construe pleadings and their amendments liberally, in order to do substantial justice, even if the pleadings occasionally do not strictly comply with formal requirements. American Samoa Gov't v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

An alter ego claim in a complaint is sufficient notice under T.C.R.C.P. 8(a) that a plaintiff seeks to hold the defendant individually liable for certain actions. Haleck v. Agaoleatu, 7 A.S.R.3d 203 (Trial Div. 2003).

§ 3(3) —Amending Pleadings

Statute does not require timely amendment of pleadings to conform to evidence for evidence to be admissible. F.R. Civ. P. 15. Tung v. Ah Sam, 4 A.S.R. 764.

Court will, per F. R. Civ. Pro. 15(b), amend pleading to proof, to determine case on merits, rather than dismiss because Plaintiff chose wrong cause of action. Moon v. Falemalama, 4 A.S.R. 836.

Court would allow claimant to amend his complaint at trial so as to state a new legal basis for liability when the amendment would create no new factual questions. T.C.R.C.P. Rule 15(b). Ryan, Inc., v. Vaka, 5 A.S.R.2d 31.

In order to promote justice, court would exercise its discretion and give respondent leave to amend its answer to assert fraud on the part of petitioner and thus avoid petitioner's statute of limitations defense even though it had not yet been established that petition properly raised the issue. King v. Commissioner of Revenue, 7 A.S.R.2d 90.

Amended complaint supersedes rather than supplements the original complaint. Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

Where amended complaint inadvertently omitted the name of one plaintiff, court would entertain a motion for second amended complaint to reinstate her as a party provided that original complaint had given defendants timely notice of her claim. Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

Where plaintiffs in wrongful death action had omitted other potential plaintiffs from their pleadings, amendment of the pleadings after trial to include additional plaintiffs would be permitted only insofar as it would work no prejudice on the defendants. Saufo`i v. American Samoa Government (Mem.), 14 A.S.R.2d 51.

Where damages had been assessed against defendants in wrongful death action, but plaintiffs had omitted other potential beneficiaries from their pleadings and sought to cure the omission by amendment after trial, plaintiffs would be required to share their damage award with their new co‑plaintiffs. Saufo`i v. American Samoa Government (Mem.), 14 A.S.R.2d 51.

Amendments to pleadings should be freely made in the interest of full consideration of the merits, unless the objecting party is prejudiced by lack of notice and surprise. Thompson v. Toluao, 24 A.S.R.2d 127.

Leave to amend, pursuant to T.C.R.C.P. Rule 15(a) shall be freely given when justice so requires, with a bias toward testing claims on their merits and not on procedural defects. Leave to amend should be granted in the absence of reasons such as undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, or futility of the amendment. Ape v. American Samoa Government, 25 A.S.R.2d 106.

Court will exercise its discretion under T.C.R.C.P. 15(a) to grant a motion to amend pleadings where the amended pleadings merely restate the same allegations contained in the original complaint and do not give plaintiff an unfair advantage in the proceedings. T.C.R.C.P. 15(a). McKenzie v. Le'iato, 27 A.S.R.2d 63.

A T.C.R.C.P. 15(b) motion can be made at any time, even after judgment, and such requests shall be freely granted when the presentation of the merits of the action will be subserved and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. Motu v. American Samoa Gov't, 28 A.S.R.2d 3.

The relation back of amendments is a legal fiction designed to allow the correction of technical mistakes in pleading by amendment without violating the statute of limitations. Randall v. American Samoa Gov't, 28 A.S.R.2d 70.

A trial court may not deny leave to amend without justification. Thomsen v. Bank of Haw., 28 A.S.R.2d 86.

The court will not prevent amendment of a pleading regarding matters which are material to the case unless we see actual prejudice to the defendant or, perhaps, concrete evidence of bad faith. Thomsen v. Bank of Haw., 28 A.S.R.2d 86.

T.C.R.C.P. Rule 15(a) gives the court wide latitude to permit amendment of a pleading. It the court finds that the ends of justice and fairness are legitimately furthered by amendment, it will permit it. Thomsen v. Bank of Haw., 28 A.S.R.2d 86.

T.C.R.C.P. Rule 15(a) allows a party to amend his pleadings once, as a matter of course, any time before a permitted responsive pleading is served. Pipili v. Ah Sue, 1 A.S.R.3d 63 (Trial Div. 1997).

Failure to allege the jurisdictional amount in the complaint does not subject it to dismissal where the complaint is amended to include this allegation prior to the filing of a responsive pleading by the defendant. Pipili v. Ah Sue, 1 A.S.R.3d 63 (Trial Div. 1997).

Where plaintiff had named non sui juris governmental entity, rather than American Samoa Government, having done so “to identify for the court which specific actors in the ASG were wrongdoers”, said error in pleading subjected complaint to dismissal, but pleading could be amended to name proper party under T.C.R.C.P. 15(a). McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

T.C.R.C.P. 15(a) allows a party to amend a pleading by leave of the court when justice so requires. McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

In order for a party to amend its pleading, changing the name of the party against whom the claim is asserted, the claim against the properly-named party must arise out of the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

In order for a party to amend its pleading, changing the name of the party against whom the claim is asserted, the party brought in by amendment must have (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. McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

Where a more carefully drafted complaint might state a claim, a plaintiff should ordinarily be given leave to amend. Afele-Fa`amuli v. Am. Samoa Cmty. Coll., 4 A.S.R.3d 219 (Trial Div. 2000).

Where plaintiff had described actions taken by defendant of which she complained, yet failed to explicitly state any claim against defendant, proper remedy was to allow plaintiff to amend her complaint and 20 days was the appropriate time allotted for her to do so. Afele-Fa`amuli v. Am. Samoa Cmty. Coll., 4 A.S.R.3d 219 (Trial Div. 2000).

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. Nua v. Sunia, 4 A.S.R.3d 234 (Trial Div. 2000).

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.,--leave to amend a complaint should, as the rules require, be freely given. American Samoa Gov't v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

Where defendant/cross-claimant had not moved to amend cross-claim, but simply added extraneous language to his trial memorandum, despite having more than five years time to so move, court would not accept implicit “amendment” of cross-claim because of the undue delay, prejudice resulting to other parties. American Samoa Gov't v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

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). American Samoa Gov't v. .145 Acres, 5 A.S.R.3d 61 (Trial Div. 2001).

Complaint must be amended when each count of complaint fails to incorporate previous paragraphs detailing allegations of action. Haleck v. TRT, Inc., 6 A.S.R.3d 226 (Trial Div. 2002).

Where opposing party has already answered pleading, leave of the court is necessary to amend it. RDL, Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 256 (Trial Div. 2002).

Whether to grant a motion to amend the pleadings lies within the court's sound discretion. RDL, Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 256 (Trial Div. 2002).

The Rules of Civil Procedure require the court to freely grant amendments when justice so requires. However, leave to amend will be denied when factors 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, or futility of amendment are present. RDL, Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 256 (Trial Div. 2002).

When a motion to amend concerns the addition of a party, the movant bears the burden of demonstrating whether the third party they seek to join satisfies the requirements of being a necessary joinder or a permissive joinder under the rules. RDL, Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 256 (Trial Div. 2002).

In order to facilitate a proper decision on the merits of the case, the Court may allow a plaintiff leave to amend the pleadings where they are legally deficient and when justice so requires. Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002).

§ 3(4) —Rule 11 Sanctions

Whenever counsel signs a motion, counsel is certifying that the motion is not being presented for any improper purpose, and that 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; and under T.C.R.C.P. 11(c)(1)(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 rule. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 180 (Trial Div. 2000).

Where counsel failed to heed Court’s warning to be forthcoming with court, and court determined that he had violated T.C.R.C.P. 11(b)(3), monetary sanctions were proper. Progressive Ins. Co., Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 57 (Trial Div. 2001).

§ 4 Pretrial Motions

§ 4(1) —Dismissal of Actions

When only one party remains, there can be no trial of a contested case, and dismissal is appropriate. C.A.S. 6.0106. In re Matai Title Lutali, 4 A.S.R. 10.

"Dismissal" of an action is an appropriate term for denial of all relief requested by the plaintiff after adjudication on the merits. T.C.R.C.P. Rule 41(b). Development Bank v. Ilalio, 5 A.S.R.2d 110.

A civil action may be dismissed if, upon the facts and the law, a plaintiff has shown no right to relief. T.C.R.C.P. Rule 41(b). Fuimaono v. Fuia, 23 A.S.R.2d 121.

A suit dismissed without prejudice leaves the situation the same as if the suit had never been brought in the first place. Pasesa v. Laumatia, 27 A.S.R.2d 88.

The method and timetable for deciding a Rule 12(b) motion for judgment on the pleadings under Rule 12(d) of the American Samoa Trial Court Rules of Civil Procedure is left to the sole discretion of the trial judge who may defer that determination until trial. The last portion of Rule 12(d) gives the court discretion to grant a preliminary hearing or to defer resolution of the issues until trial. Gatolai v. American Samoa Gov’t, 1 A.S.R.3d 129 (Trial Div. 1997).

§ 4(1)(a) —General Provisions

A complaint may be dismissed even though the flaw in the pleading is "procedural" rather than "jurisdictional". T.C.R.C.P. Rule 12 (b)(1)-(5),(7). Moeisogi v. Faleafine, 5 A.S.R.2d 131.

Motion to dismiss for failure to timely file pre-trial brief would be denied, but moving party could recover attorney fees and expenses occasioned by the delay and related proceedings from attorney who had failed to file brief. Star-Kist Samoa, Inc., v. Workmen's Compensation Commission, 7 A.S.R.2d 137.

Where plaintiff's counsel had been ordered to amend his pleading, did not do so for a period of two years, and did not answer letters from opposing counsel respecting the failure to amend, court would not dismiss the action for failure of diligent prosecution, but would assess against plaintiff's counsel an award to opposing parties of the fees incurred in connection with the motion to dismiss, and would impose deadlines within which plaintiff must complete discovery and move to set a trial date. Kane v. Country Comfort, 10 A.S.R.2d 16.

Court acted properly in granting motion to dismiss at conclusion of plaintiffs' case, at least in light of territorial statute allowing land court to proceed in such manner as it considers to be most consistent with natural justice and convenience, where plaintiffs objected that evidence they had been saving for rebuttal could have established a prima facie case but court concluded that defendants would prevail even if plaintiffs succeeded in proving every fact they offered to prove on rebuttal. A.S.C.A. § 3.0242. Willis v. Fai`ivae, 10 A.S.R.2d 121.

Court denied a motion to dismiss by defendants/trustees which argued that plaintiff was estopped from alleging breach of such trust by a trust provision requiring that disputes regarding interpretation be referred to the probate court for instructions, since such a piecemeal and novel approach to defining and sorting out the issues between litigants was meritless and unfounded. Beaver v. Cravens, 17 A.S.R.2d 6.

Order extending the time to comply with Appellate Court Rule 10(b) was affirmed, and motion to dismiss for failure to timely comply was denied, where the resulting delay was less than thirty days, the appeal would not have been perfected for the current appellate session even with timely compliance, and appellee suffered no real prejudice by the delay. Opapo v. Puailoa, 17 A.S.R.2d 30.

When a party fails to object to the court's ruling on the motion to dismiss, any such objection must be regarded as waived. In re Matai Title Mulitauaopele, 17 A.S.R.2d 75.

The standard of proof on a motion to dismiss at the conclusion of a plaintiff's evidence is a preponderance of the evidence; the court is not obliged to rule on the motion at that point but may defer judgment until the close of all the evidence. Crispin v. American Samoa Gov't, 21 A.S.R.2d 60.

For a motion to dismiss at the conclusion of a plaintiff's evidence in a court-tried civil action, restyled by the Federal Rules of Civil Procedure as a judgment on partial findings, a plaintiff must prevail by a preponderance of the evidence. Fed. R. Civ. P. 52(c); T.C.R.C.P. Rule 41(b). Reine v. Fiame, 23 A.S.R.2d 25.

In reviewing a motion to dismiss, it is improper for the court to consider documents outside of the pleadings without converting the motion into a motion for summary judgment pursuant to T.C.R.C.P. 56. T.C.R.C.P. 56. McKenzie v. Le'iato, 27 A.S.R.2d 63.

The court will not retroactively dismiss a lawsuit for lack of jurisdiction when it presently has jurisdiction. The time for the motion to dismiss for lack of jurisdiction was during the time that the court did not have jurisdiction. Randall v. American Samoa Gov't, 28 A.S.R.2d 70.

As a general principle, policy and due process concerns favor resolution of a case on the merits. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 149 (Trial Div. 1999).

Motions to dismiss are viewed with disfavor and are rarely granted. Haleck v. TRT, Inc., 6 A.S.R.3d 226 (Trial Div. 2002).

§ 4(1)(b)—Failure to State a Claim – 12(b)(6) Motion

A complaint sufficient to state a claim upon which relief can be granted must describe the alleged injury and set forth a basis for imposing liability on defendant; conclusory allegations will not suffice. Pene v. American Samoa Power Authority, 4 A.S.R.2d 152.

Complaint alleging facts which could, if proved at trial, warrant statutory remedy would not be dismissed for failure to state a claim, despite alternative possibility that case could prove to be within exception to statutory remedy. T.C.R.C.P. Rule 12(b)(6); A.S.C.A. § 43.1203(b)(5). A.S.C.A. § 43.1207 Tevaseu v. American Samoa Government, 5 A.S.R.2d 10.

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 that would entitle him to relief. T.C.R.C.P. Rule 12(b)(6). Moeisogi v. Faleafine, 5 A.S.R.2d 131.

Complaint asserting ownership of land did not fail to state a claim because of plaintiff's failure to comply with statutory requirement of timely objection to defendant's prior registration of land, where pleadings did not establish that defendant had complied with statutory notice requirements for registration of land. T.C.R.C.P. Rule 12(b)(6); A.S.C.A. §§ 37.0102, 37.0103. Moeisogi v. Faleafine, 5 A.S.R.2d 131.

The defense of failure to state a cause of action upon which relief can be granted has traditionally been regarded as a defense on the merits. Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20.

Motion to dismiss may be heard on the basis of affidavits alone or through a full evidentiary hearing on the merits. T.C.R.C.P. 12(b)(2). Patau v. Rosendahl Corporation, 16 A.S.R.2d 96.

In ruling upon a motion to dismiss for failure to state a claim, the complaint must be liberally construed and viewed in the light most favorable to the plaintiff. Beaver v. Cravens, 17 A.S.R.2d 6.

Court denied a motion to dismiss for failure to state a claim which relied on plaintiff's failure to specially plead the elements needed for a shareholder's derivative action, since the pleaded causes of action were personal, not derivative, and plaintiff was seeking redress for herself from the corporation rather than suing on its behalf. T.C.R.C.P. 12(b)(6), 23.1. Beaver v. Cravens, 17 A.S.R.2d 6.

Where trustees filed a pleading styled as a petition to a nonexistent "probate division" of the High Court for advice and instructions, the Court denied a motion to dismiss for failure to state a claim by the surviving settlor of the trust, since the trustees did not merely seek an advisory opinion but stated a claim for declaratory relief. A.S.C.A. § 43.1101 et seq. In re Beaver Family Trust, 17 A.S.R.2d 9.

Great specificity is ordinarily not required to survive a Rule 12(b)(6) motion. ASG Employees Federal Credit Union v. Gurr, 26 A.S.R.2d 87.

Filing a motion to dismiss for failure to state a claim under T.C.R.C.P. Rule 12(b)(6) in lieu of an answer satisfies a defendant's procedural requirement under the law. Rakshan v. American Samoa Gov't, 28 A.S.R.2d 151.

A T.C.R.C.P. Rule 12(b) motion to dismiss is not a responsive pleading for the purposes of T.C.R.C.P. Rule 15(a). Pipili v. Ah Sue, 1 A.S.R.3d 63 (Trial Div. 1997).

A complaint in a contested land case that the Governor failed to provide the affected plaintiff with notice of the Governor’s decision concerning alienation of communal property is not subject to dismissal for failure to state a claim. Ah Soon v. Tafa’ifa, 1 A.S.R.3d 236 (Trial Div. 1997).

Under T.C.R.C.P. 12(b)(6), review of a motion to dismiss is limited to whether the claimant is entitled to offer evidence to support the claims regardless of the likelihood of recovery, and in reviewing a motion to dismiss, the pleadings should be construed in favor of the claimant, and the burden of demonstrating that there is no claim is upon the party moving to dismiss. Johnson v. American Samoa Gov’t, 2 A.S.R.3d 173 (Trial Div. 1998).

A complaint will be dismissed for failure to state a claim only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Johnson v. American Samoa Gov’t, 2 A.S.R.3d 173 (Trial Div. 1998).

Under T.C.R.C.P. 12(b)(6), a defense of immunity is a proper basis for granting a motion to dismiss, and a government entity is immune from suit unless it consents to suit through legislation or by acting in a non-governmental capacity. Johnson v. American Samoa Gov’t, 2 A.S.R.3d 173 (Trial Div. 1998).

In a motion for judgment on the pleadings, a court may look only at the pleadings. Administrator v. Amerika Samoa Bank, 3 A.S.R.3d 146 (Trial Div. 1999).

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. McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

Under T.C.R.C.P. 12(b)(6), 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; the court assumes the allegations in the complaint are true, and the burden of proving the absence of a claim rests on the party seeking dismissal. Ames v. Dept. of Treasury, 4 A.S.R.3d 78 (Trial Div. 2000).

A complaint which clearly alleges that a lessor’s lease termination was wrongful because plaintiff had complied with the terms of the lease sufficiently states a cause of action for breach of the lease. Mulitauaopele v. American Samoa Gov’t and Tax Office, 4 A.S.R.3d 86 (Trial Div. 2000).

A complaint alleging defamation in a letter requesting investigation by the Attorney General states no cause of action because such a request is absolutely privileged. Mulitauaopele v. American Samoa Gov’t and Tax Office, 4 A.S.R.3d 86 (Trial Div. 2000).

Under Rule 12(b)(6) a plaintiff’s factual allegations are accepted as true, and contract interpretation is not something to be decided in a Rule 12(b)(6) motion; the court liberally construes the claims of pro se litigants, and where it appears that a plaintiff has asserted a breach of contract and has implicitly made a claim for property damage such claim will not be dismissed. Mulitauaopele v. American Samoa Gov’t and Tax Office, 4 A.S.R.3d 86 (Trial Div. 2000).

A motion to dismiss for failure to state a claim under T.C.R.C.P. 12(b)(6) should not be granted 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. Afele-Fa`amuli v. Am. Samoa Cmty. Coll., 4 A.S.R.3d 219 (Trial Div. 2000).

In considering a 12(b)(6) motion, the court assumes the allegations in the complaint are true. Afele-Fa`amuli v. Am. Samoa Cmty. Coll., 4 A.S.R.3d 219 (Trial Div. 2000).

The burden of proving the absence of a claim rests on the party seeking dismissal. Afele-Fa`amuli v. Am. Samoa Cmty. Coll., 4 A.S.R.3d 219 (Trial Div. 2000).

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. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 17 (Trial Div. 2001).

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. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 17 (Trial Div. 2001).

The burden of proving the absence of a claim rests on the movant. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 17 (Trial Div. 2001).

In considering a motion to dismiss for failure to state a claim, the pleadings are to be construed in the light most favorable to the claimant. American Samoa Gov't v. NTV Electronics, 5 A.S.R.3d 73 (Trial Div. 2001).

Complaint is interpreted in light most favorably to plaintiff in deciding motion to dismiss for failure to state cause of action. Haleck v. TRT, Inc., 6 A.S.R.3d 226 (Trial Div. 2002).

Great specificity is not required to survive motion to dismiss as long as pleadings give notice of nature of claims. Haleck v. TRT, Inc., 6 A.S.R.3d 226 (Trial Div. 2002).

In determining a motion to dismiss for failure to state a claim, the complaint is to be liberally construed and viewed in the light most favorable to the plaintiff. Haleck v. Agaoleatu, 7 A.S.R.3d 203 (Trial Div. 2003).

The Court must take the material facts alleged in the complaint as true and read the complaint as liberally as possible, drawing all inferences in favor of the plaintiff. Haleck v. Agaoleatu, 7 A.S.R.3d 203 (Trial Div. 2003).

§ 4(1)(c) —Court’s Discretion

It is for Trial Court to decide whether a demurrer to an action interposed by defendant is vexatious and merely for purposes of delay thereby assessing upon defendant costs for that portion of the action taken up by the demurrer. Dwyer v. McDonald, 1 A.S.R. 652.

Court may invoke T.C.R.C.P. Rule 12(b)(6) on its own motion. Pene v. American Samoa Power Authority, 4 A.S.R.2d 152.

Court may, in its discretion, dismiss without prejudice a complaint that fails to state a claim upon which relief can be granted. T.C.R.C.P. Rule 12(b)(6). Pene v. American Samoa Power Authority, 4 A.S.R.2d 152.

Although a court has an obligation to liberally construe pleadings to avoid injustice, this does not extend to refashioning a plaintiff's theory of relief in order to withstand a motion to dismiss for failure to state a claim upon which relief can be granted. T.C.R.C.P. 12(b)(6). Mackenzie v. Lutali, 24 A.S.R.2d 75.

The method and timetable for deciding a Rule 12(b) motion for judgment on the pleadings under Rule 12(d) of the American Samoa Trial Court Rules of Civil Procedure is left to the sole discretion of the trial judge who may defer that determination until trial. The last portion of Rule 12(d) gives the court discretion to grant a preliminary hearing or to defer resolution of the issues until trial. Gatolai v. American Samoa Gov’t, 1 A.S.R.3d 129 (Trial Div. 1997).

In considering a 12(b)(6) motion, the court assumes the allegations in the complaint are true. McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

The burden of proving the absence of a claim rests on the party seeking dismissal. McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

§ 4(1)(d)—Compared to Summary Judgment Motion

SEE CIVIL PROCEDURE § 7(3) – COMPARED TO 12(b)(6) MOTION

Insufficient pleadings are properly attacked by motion to dismiss for failure to state a claim rather than with motion for summary judgment. T.C.R.C.P. Rule 12(b)(6), Rule 56. Pene v. American Samoa Power Authority, 4 A.S.R.2d 152.

Court may treat a motion for summary judgment as a motion to dismiss for failure to state a claim when moving papers, though improperly styled, clearly state the latter. T.C.R.C.P. Rule 56, Rule 12(b)(6). Pene v. American Samoa Power Authority, 4 A.S.R.2d 152.

Where a motion to dismiss for failure to state a claim upon which relief may be granted presents matters which are outside the pleadings, the court will treat the motion as one for summary judgment. T.C.R.C.P. Rule 12(b). Mauga v. Lutu, 10 A.S.R.2d 115.

Standard of proof on a motion to dismiss at the conclusion of plaintiffs' evidence at trial, unlike the standard on a motion for summary judgment before trial, is that plaintiffs must prevail by a preponderance of the evidence. Willis v. Fai`ivae, 10 A.S.R.2d 121.

A motion to dismiss will be treated as a summary judgment motion when evidence extrinsic to the complaint is presented to and considered by the court. T.C.R.C.P. 12(b)(6), 56. Samoana Fellowship, Inc. v. American Samoa Power Authority, 24 A.S.R.2d 71.

Conversion of a 12(b)(6) motion into a motion for summary judgment lies squarely with the court. ASG Employees Federal Credit Union v. Gurr, 26 A.S.R.2d 87.

When a court converts a motion under T.C.R.C.P. 12(b) into a motion for summary judgment under T.C.R.C.P. 56, the court must make the parties aware that the court is considering a motion for summary judgment by giving the parties 10 days notice of the conversion. T.C.R.C.P. 12(b), 56. McKenzie v. Le'iato, 27 A.S.R.2d 63.

Where Motion for Judgment on the Pleadings is made, but Court looks beyond the pleadings, it is considered a Motion for Summary Judgment. Administrator v. Amerika Samoa Bank, 3 A.S.R.3d 146 (Trial Div. 1999).

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. Pouesi v. American Samoa Gov’t, 5 A.S.R.3d 164 (Trial Div. 2001).

§ 4(1)(e)—Time for Filing Motion

T.C.R.C.P. 6(d) requires parties to serve supporting memorandum not later than 3 days before the hearing, unless otherwise permitted by the court. Where memorandum filed on a Friday, and motion heard the following Monday, movant had obviously not complied with T.C.R.C.P. 6(d). BHP Petroleum South Pacific, Inc. v. Daitoh Trading Co. 1 A.S.R.3d 60 (Trial Div. 1997).

§ 4(2) —Motion for Judgment on the Pleadings

RESERVED

§ 4(2)(a) —Generally

RESERVED

§ 4(2)(b)—Compared to Summary Judgment Motion

RSERVED

§ 4(3) —Motion for More Definite Statement

RESERVED

§ 4(4) —Motion to Strike

§ 4(4)(a) —Generally

Motions to strike are generally disfavored and will not be granted unless the allegations’ supporting information fulfills two criteria: (1) it must have no relation to the controversy; and (2) it must be unduly prejudicial. McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

Where plaintiff alleged that defendant had made misrepresentations and failed to negotiate in good faith, evidence regarding conduct of negotiations would not be inadmissible under Evidence Rule 408, nor would such evidence be immaterial or subject to being stricken under T.C.R.C.P. 12(f). McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

Court refused to strike portions of memorandum of law filed in support of motion for summary judgment where movant’s asserted grounds were that the memorandum contained conclusory and unsupported statements and law cited in support of motion to strike applied only to affidavits, not memoranda of law. American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

The court may deny a party’s motion to strike when it has failed to specify the specific portions of an affidavit that are objectionable. American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

§ 4(4)(b) —Relation to Controversy

In order to prove that an allegation in a pleading has “no relation to the controversy,” and hence should be struck by the Court, a party must demonstrate “that no evidence in support of the allegation would be admissible [at trial].” McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

§ 4(4)(c) —Unduly Prejudicial

RESERVED

§ 4(5) —Dismissal of Actions

§ 4(5)(a) —Generally

RSERVED

§ 4(5)(b) —Voluntary Dismissal by Plaintiff

Voluntary dismissal pursuant to T.C.R.C.P. 41, if timely filed, is available as a matter of unconditional right. Eurocompany S.P.A. v. Yurgrettansflot, 7 A.S.R.3d 76 (Trial Div. 2003).

Voluntary dismissal under T.C.R.C.P. 41 is effective at the moment the notice is filed with the clerk, and no judicial approval is required. Eurocompany S.P.A. v. Yurgrettansflot, 7 A.S.R.3d 76 (Trial Div. 2003).

In order to be effectuated, a voluntary dismissal must be filed before service by the adverse party of an answer or of a motion for summary judgment. Eurocompany S.P.A. v. Yurgrettansflot, 7 A.S.R.3d 76 (Trial Div. 2003).

A plaintiff’s right to voluntarily dismiss an action under T.C.R.C.P. 41 is not extinguished by the defendant’s filing of a motion to dismiss under T.C.R.C.P. 12(b). Eurocompany S.P.A. v. Yurgrettansflot, 7 A.S.R.3d 76 (Trial Div. 2003).

§ 4(5)(c) —Voluntary Dismissal by Court

RESERVED

§ 4(5)(d) —Failure to Prosecute

Both under the authority of T.C.R.C.P. 41(b) and through its inherent powers, a court may dismiss a case for lack of prosecution. Estate of Pua`auli v. LBJ Tropical Medical Center, 4 A.S.R.3d 103 (Trial Div. 2000).

Factors considered in deciding whether to dismiss a case for lack of prosecution are 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. Estate of Pua`auli v. LBJ Tropical Medical Center, 4 A.S.R.3d 103 (Trial Div. 2000).

Unreasonable delay is a prerequisite for dismissal for failure to prosecute. Estate of Pua`auli v. LBJ Tropical Medical Center, 4 A.S.R.3d 103 (Trial Div. 2000).

Unreasonable delay creates a presumption of injury to a defendant’s defenses, and actual prejudice to a defendant’s case is a factor in judging whether a delay is unreasonable. Estate of Pua`auli v. LBJ Tropical Medical Center, 4 A.S.R.3d 103 (Trial Div. 2000).

Where many witnesses are no longer available and much or all of the evidence has been lost, actual prejudice is shown and weighs heavily in favor of dismissal. Estate of Pua`auli v. LBJ Tropical Medical Center, 4 A.S.R.3d 103 (Trial Div. 2000).

Unreasonable delay is not a fixed time period, but exists when the plaintiff is totally inactive for a significant period, such as where he has been completely inactive for 12 years and is completely unresponsive in explaining the delay. Estate of Pua`auli v. LBJ Tropical Medical Center, 4 A.S.R.3d 103 (Trial Div. 2000).

The burden is on the plaintiff to show that the delay was justified or excusable. Estate of Pua`auli v. LBJ Tropical Medical Center, 4 A.S.R.3d 103 (Trial Div. 2000).

§ 4(5)(e) —Time for Filing Motion

RESERVED

§ 4(5)(f) —Costs of Previously Dismissed Action

RESERVED

§ 4(6) —Continuances

Trial court’s decision to grant or deny continuance will only be overturned upon clear showing of abuse of discretion. Williams v. Tupuola, 6 A.S.R.3d 44 (App. Div. 2002).

§ 5 Parties

§ 5(1) —General Provisions

Real party in interest is entitled to intervene when appeal is filed against nominal appellee, such as Workmen’s Compensation Commissioner. F.R. Civ. Pro. 24. In re Westerlund v. Scanlan, 4 A.S.R. 998.

Rights and liabilities of parties depend upon facts as they existed at time of commencement of action and not at time of trial. Stevens v. Tee, 2 A.S.R. 627.

Court has no jurisdiction to alter rights and obligations with respect to persons not parties and properties not pleaded. Reid v. Tavete, 1 A.S.R.2d 85 (App. Div. 1983).

An application for designation as the proper parties in a wrongful death action has been the practice in the High Court, and such designation also appears to be statutorily required, at least in the absence of a prior designation of a personal representative (administrator or executor) of an estate. A.S.C.A. § 43.5001(b). Saufo`i v. American Samoa Government, 16 A.S.R.2d 71.

The personal representative in a wrongful-death action shall be the named plaintiff, but the action shall be brought on behalf of the surviving spouse, parents, children or other next of kin, as the court may direct. A.S.C.A. § 43.5001(b). Saufo`i v. American Samoa Government, 16 A.S.R.2d 71.

Motion to intervene in an action after court has entered judgment is barred when movants possessed knowledge of the action prior to the entering of judgment. T.C.R.C.P. 24. Development Bank of American Samoa v. Lagarejos, 27 A.S.R.2d 91.

Post-judgment intervention is generally allowed only upon a strong showing of entitlement by the applicant. Development Bank of American Samoa v. Lagarejos, 27 A.S.R.2d 91.

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. Lagapagatele v. Lagapagatele, 2 A.S.R.3d 195 (Land & Titles Div. 1998).

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 running of the ninety day period for substitution under T.C.R.C.P. 25(a)(1). Lagapagatele v. Lagapagatele, 2 A.S.R.3d 195 (Land & Titles Div. 1998).

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. Lagapagatele v. Lagapagatele, 2 A.S.R.3d 195 (Land & Titles Div. 1998).

A stakeholder may be discharged if it is a disinterested party; but dismissal is improper when an interpleading plaintiff disputes its liability to the insured for an additional sum as demanded in a counterclaim. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 121 (Trial Div. 2000).

Under T.C.R.C.P. 22, persons having claims against the plaintiff may be joined as defendants and required to interplead; but where a person asserts no claim and disclaims any interest in the proceeds of the insurance policy at issue, he is not a proper party defendant. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 121 (Trial Div. 2000).

§ 5(2) —Joinder

Where evidence shows that person representing family in civil action was acting as agent of family and that matai was notified of action before decision was rendered, and family representative made no effort for continuance to permit matai to intervene, court will not reverse decision, grant new trial and permit matai to intervene where he has stood by and awaited outcome of lawsuit before attempting such intervention. Taliutafa v. Toaga, 2 A.S.R. 218.

Partner of defendant who may be liable under action may intervene as party defendant. Steffany v. Scanlan, 3 A.S.R. 456.

Persons may join as plaintiffs in action where there are common questions of law and fact affecting their separate rights. Lualemana v. Magalei, 4 A.S.R. 849.

A party that requests joinder in an action cannot later object to the joinder. Fa’atupu v. Malepeai, 2 A.S.R.2d 58 App. Div. 1985).

Potential claimants to an estate's proceeds were to be joined as necessary parties when the complete relief granted by the court would affect the property rights of persons who were not presently parties to the action. T.C.R.C.P. 19. Jennings v. Jennings, 22 A.S.R.2d 10.

The decision to sever properly joined defendants is at the trial court's discretion and should be granted only if there is a serious risk that a joint trial would compromise a defendant's specific trial right or prevent the jury from making a reliable judgment about guilt or innocence. T.C.R.Cr.P. 8(b), 14. American Samoa Government v. Fealofa'i, 24 A.S.R.2d 10.

The party raising the defense of failure to join an indispensable party bears the burden of showing that the absent party would be prejudiced by proceeding with the action and so is needed for a just adjudication. T.C.R.C.P. 12(b)(7), 19. Shon v. Mollerup Moving & Storage Co., 24 A.S.R.2d 50.

The court determines whether or not it is feasible to join a person as a party, as a difference exists between necessary parties who cannot be served process and those who may be subject to process but who simply have not been served. T.C.R.C.P. 19. Shon v. Mollerup Moving & Storage Co., 24 A.S.R.2d 50.

In regards to subrogation, an insurance company must be joined as a necessary party plaintiff only if it has compensated an insured for his entire loss and if a danger exists that a defendant will face future lawsuits from the insurance company. T.C.R.C.P. 17(a), 19. Interocean Ships, Inc. v. Samoan Gases, 24 A.S.R.2d 108.

Joinder is appropriate when the court is asked to adjudicate upon the rights of a party who is not presently before the court. Senate v. Lutali, 26 A.S.R.2d 125.

Motion to intervene in an action after court has entered judgment is barred when movants possessed knowledge of the action prior to the entering of judgment. T.C.R.C.P. 24. Development Bank of American Samoa v. Lagarejos, 27 A.S.R.2d 91.

Trial court properly denied plaintiff’s motion, at close of case, to add corporate entity as party defendant because such motion was tardy, company would not have had opportunity to defend against plaintiff’s claims, and consequently joinder would have been unjust. Matamua v. Carribean Fishing Co., 4 A.S.R.3d 126 (Trial Div. 2000).

When a motion to amend concerns the addition of a party, the movant bears the burden of demonstrating whether the third party they seek to join satisfies the requirements of being a necessary joinder or a permissive joinder under the rules. RDL, Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 256 (Trial Div. 2002).

A necessary party is defined as a person whom in whose absence, and among the already existing parties, complete relief cannot be accorded. RDL, Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 256 (Trial Div. 2002).

Joint and several liability does not make a party “indispensable” for purposes of Rule 19 of the Rules of Civil Procedure. RDL, Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 256 (Trial Div. 2002).

Multiple parties may, but need not be, joined if claims against them (1) arise out of the same transaction, occurrence, or series of transactions or occurrences and (2) will present some question of law or fact in common. RDL, Inc./CIDA, Inc. v. Am. Samoa Comty. College, 6 A.S.R.3d 256 (Trial Div. 2002).

§ 5(3) —Class Actions

If persons constituting class are numerous, they may be represented in court by one or more as will fairly insure adequate representation of all. Lualemana v. Magalei, 4 A.S.R. 849.

Where there is class suit by representation and words “and other” are included after listing of plaintiffs on petition, decision may be binding with respect to person in class whose interests are identical with those listed as plaintiffs. Lualemana v. Magalei, 4 A.S.R. 849.

Under T.C.R.C.P. 23(a), 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. Nguyen v. Daewoosa Samoa, Ltd., 4 A.S.R.3d 135 (Trial Div. 2000).

Ability to identify the plaintiffs is not the criterion used to determine whether plaintiffs have met the numerosity requirement for class action; rather the court looks at the practicability of joinder, and to whether hearing the arguments as to a large number of individual plaintiffs would be impractical and would severely strain the limited resources of the court system. Nguyen v. Daewoosa Samoa, Ltd., 4 A.S.R.3d 135 (Trial Div. 2000).

Although some allegations of numerous plaintiffs may differ, where there are ample commonalities in their claims they may be granted class action status. Nguyen v. Daewoosa Samoa, Ltd., 4 A.S.R.3d 135 (Trial Div. 2000).

Under T.C.R.C.P. 23(b)(3), the court may certify a class action 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, and allows class certification when the plaintiffs seek primarily monetary or injunctive relief. Nguyen v. Daewoosa Samoa, Ltd., 4 A.S.R.3d 135(Trial Div. 2000).

In determining whether common questions predominate for class action certification, the court makes a pragmatic assessment of whether common issues of both law and fact predominate in the entire action, and may consider whether other potential plaintiffs have shown a desire to have claims adjudicated separately. Nguyen v. Daewoosa Samoa, Ltd., 4 A.S.R.3d 135 (Trial Div. 2000).

Under T.C.R.C.P. 23(b)(3), a class action must be superior to other methods of proceeding, and it is so when individual members are likely unable or unwilling to bring an action on their own, as when many of the plaintiffs do not speak English and have little understanding of the legal system. Nguyen v. Daewoosa Samoa, Ltd., 4 A.S.R.3d 135 (Trial Div. 2000).

Under T.C.R.C.P. 23(b)(1)(A) class action is appropriate if the prosecution of separate actions would create a risk of inconsistent or varying adjudications as to individual class members and establish incompatible standards of conduct for the party opposing the class. Nguyen v. Daewoosa Samoa, Ltd., 4 A.S.R.3d 135 (Trial Div. 2000).

Certification of a class action under T.C.R.C.P. 23(b)(3) is appropriate where questions of law and fact common to members of the class predominate over any questions affecting only individual members, and a class action would be superior to other available methods for fair and efficient adjudication of the controversy. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

In order to maintain a class suit, each plaintiff must recover damages at the same rate. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

When a class action is brought on behalf of multiple aggrieved employees against employer, where possible individualized remedies should be utilized because it will compensate the claimants without unfairly penalizing the employer. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

Where court was unable to make individual back pay awards for certain workers due to lack of payroll records, court properly employed a class-wide method to ascertain the workers’ damages by calculating the average overtime earned and payments received of the named and identifiable members of each corresponding worker’s group. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 138 (Trial Div. 2002).

§ 5(4) —Substitution of Parties

RESERVED

§ 5(5) —Interpleader

Under T.C.R.C.P. 22, a party attempting to interplead must have a legitimate fear of multiple liability or litigation; and the propriety of interpleader is often determined in conjunction with a motion such as a summary judgment motion. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 121 (Trial Div. 2000).

An interpleader is a two-stage proceeding in which the court first determines whether the requirements for interpleader have been met, and, if so, then considers the merits. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 121 (Trial Div. 2000).

Interpleader promotes judicial efficiency and fairness to parties by avoiding multiple litigation and inconsistent adjudications, and is liberally granted. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 121 (Trial Div. 2000).

A stakeholder may be discharged if it is a disinterested party; but dismissal is improper when an interpleading plaintiff disputes its liability to the insured for an additional sum as demanded in a counterclaim. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 121 (Trial Div. 2000).

Under T.C.R.C.P. 22, persons having claims against the plaintiff may be joined as defendants and required to interplead; but where a person asserts no claim and disclaims any interest in the proceeds of the insurance policy at issue, he is not a proper party defendant. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 121 (Trial Div. 2000).

In interpleader cases, the appropriate procedure for the Court is to consider the merits of the claims in the second stage of interpleader or at trial. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 17 (Trial Div. 2001).

§ 5(6) —Intervention

In an in rem action, party’s motion to intervene is unnecessary where party has asserted ownership of the property at issue and the court has accepted the party’s ownership claim. Alves v. M/V Koorale, 7 A.S.R.3d 80 (Trial Div. 2003).

When the owner asserts his claim to the ship and assumes the responsibility of the lawsuit by defending it and putting up a security, for all intents and purposes, he has officially intervened in the suit. Alves v. M/V Koorale, 7 A.S.R.3d 80 (Trial Div. 2003).

§ 5(7) —Consolidation

RESERVED

§ 5(8) —Counterclaims

While some courts allow the vessel itself to bring a counterclaim in an in rem action, American Samoa courts follow the approach permitting a claimant acting on behalf of the ship to counterclaim. Alves v. M/V Koorale, 7 A.S.R.3d 80 (Trial Div. 2003).

Counterclaims that arise after the initial pleadings are considered “after acquired” and can only be asserted by leave of court in exercise of its discretion. Alves v. M/V Koorale, 7 A.S.R.3d 80 (Trial Div. 2003).

Court will exercise its discretion and allow after-acquired counterclaims where claims are properly asserted as counterclaims and where permitting claims would be in the interest of judicial economy and fairness to avoid multiple litigations. Alves v. M/V Koorale, 7 A.S.R.3d 80 (Trial Div. 2003).

§ 5(9) —Cross-claims

A party cannot assert cross-claims against non-parties by amendment under T.C.R.C.P. 15; T.C.R.C.P. 14(a) requires that to file a claim against an additional party, a third-party plaintiff must serve a summons and complaint on the new parties. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 180 (Trial Div. 2000).

Under T.C.R.C.P. 13(g), cross-claims against a co-party are permitted 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; and argument based on independence from the original claim precludes a cross-claim. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 180 (Trial Div. 2000).

A cross-claim is any claim by one party against a co-party. American Samoa Gov't v. NTV Electronics, 5 A.S.R.3d 73 (Trial Div. 2001).

T.C.R.C.P. 13(g) permits parties to assert cross-claims, 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. American Samoa Gov't v. NTV Electronics, 5 A.S.R.3d 73 (Trial Div. 2001).

A cross-claim 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. American Samoa Gov't v. NTV Electronics, 5 A.S.R.3d 73 (Trial Div. 2001).

Cross-claims for indemnity are permitted. American Samoa Gov't v. NTV Electronics, 5 A.S.R.3d 73 (Trial Div. 2001).

Cross-claims for indemnity must be timely made where they are available. American Samoa Gov't v. NTV Electronics, 5 A.S.R.3d 73 (Trial Div. 2001).

§ 5(10) —Third Party Practice

A party cannot assert cross-claims against non-parties by amendment under T.C.R.C.P. 15; T.C.R.C.P. 14(a) requires that to file a claim against an additional party, a third-party plaintiff must serve a summons and complaint on the new parties. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 4 A.S.R.3d 180 (Trial Div. 2000).

§ 5(11) —Bifurcated Proceedings

A trial court’s decision to bifurcate resolution of issues is reviewed for abuse of discretion. Gibbons v. Am. Samoa Gov’t, 6 A.S.R.3d 50 (App. Div. 2002).

Bifurcation can be at any point of a trial that will minimize the overlap in evidence between the segmented phases or otherwise promote economy and accuracy in adjudication. Gibbons v. Am. Samoa Gov’t, 6 A.S.R.3d 50 (App. Div. 2002).

§ 6 Discovery

§ 6(1) —General Provisions

A request to produce under T.C.R.C.P. Rule 34 may only be directed to parties to the action. Parties may include non‑party corporations which are subsidiaries of parties. Johnson v. Coulter, 25 A.S.R.2d 84.

A witness who is not an officer of a party is a non‑party witness, and her testimony may be compelled only by a subpoena issued and served in accordance with T.C.R.C.P. Rule 45(d). Johnson v. Coulter, 25 A.S.R.2d 84.

The party upon whom a request to produce is served, pursuant to T.C.R.C.P. Rule 34(b), must serve a written response within 30 days after service of the request unless the court permits a shorter length of time. Johnson v. Coulter, 25 A.S.R.2d 84.

Discovery is a liberal process under T.C.R.C.P. Rule 26(b)(1), and may include any relevant, non‑privileged material. Johnson v. Coulter, 25 A.S.R.2d 84.

A direct order by the court as provided in T.C.R.C.P. 37(a) and (b) is not a prerequisite to imposition of sanctions under T.C.R.C.P. 37(d). T.C.R.C.P. 37. Pago Petroleum Products, Inc. v. Ye Ahn Moolsoan, Ltd., 27 A.S.R.2d 94.

T.C.R.C.P. 37 permits immediate sanctions against parties for wilful failure to comply with discovery rules. T.C.R.C.P. 37. Pago Petroleum Products, Inc. v. Ye Ahn Moolsoan, Ltd., 27 A.S.R.2d 94.

Ultimate production of material in question does not absolve a party where it failed to produce the material in a timely fashion. T.C.R.C.P. 37. Pago Petroleum Products, Inc. v. Ye Ahn Moolsoan, Ltd., 27 A.S.R.2d 94.

The court may tailor the sanction to the severity of the misconduct. T.C.R.C.P. 37. Pago Petroleum Products, Inc. v. Ye Ahn Moolsoan, Ltd., 27 A.S.R.2d 94.

A document may be under a party's control, even though he does not have a copy in his possession, if he has a legal right to obtain it. Pago Petroleum Products, Inc. v. Kim, 29 A.S.R.2d 218.

The language of T.C.R.C.P. 37 is mandatory--if the court grants the motion to compel discovery, the court shall award costs and attorneys' fees. Pago Petroleum Products, Inc. v. Kim, 29 A.S.R.2d 218.

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. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 149 (Trial Div. 1999).

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 established by showing that discovery may involve inconvenience and expense. Nua v. Sunia, 4 A.S.R.3d 234 (Trial Div. 2000).

Individual has no common law right to discovery to extent that discovery materials are not judicial records or public documents. However, T.C.R.C.P. 26 permits broad discovery of information that appears reasonably calculated to lead to admissible evidence. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 20 (Trial Div. 2001).

When abusive discovery is shown, court may issue protective order circumscribing discovery to protect party from annoyance, embarrassment, oppression, or undue burden or expense. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 20 (Trial Div. 2001).

Under definition of “contract of reinsurance” in A.S.C.A. § 29.1590, T.C.R.C.P. 26(b)(2) allows discovery of existence and contents of insurance agreement between reinsurer and insurer. YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 31 (Trial Div. 2001).

T.C.R.C.P. 26(b)(1) requires that discovery be both non-privileged and relevant to subject matter in pending action. YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 31 (Trial Div. 2001).

Discovery of identity of reinsurers and their contracts with defendant are not relevant to subject matter of case. Although T.C.R.C.P. 26(b)(2) allows discovery as to “any insurance agreements,” Court exercised its discretion to limit discovery. YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 31 (Trial Div. 2001).

As a general rule, pre-trial orders governing discovery are neither final decisions, nor fall within the collateral order exception. Progressive Ins. Co., Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 57 (Trial Div. 2001).

A party affected by a court’s interim discovery ruling may challenge the decision on appeal from the final decision in the case. Progressive Ins. Co., Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 57 (Trial Div. 2001).

Court declined to reconsider pre-trial discovery ruling, granting motions to quash and for protective order, since said ruling was reviewable upon appeal from final decision in case. Progressive Ins. Co., Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 57 (Trial Div. 2001).

Pre-trial orders governing discovery, not falling within finality exception or collateral order exception, may only be challenged on appeal from final decision. Motion to reconsider order denying motion to compel discovery was denied. YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 88 (Trial Div. 2001).

T.C.R.C.P. 26(f) authorizes court to call discovery conference. YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 88 (Trial Div. 2001).

Although not adopting the federal rule mandating discovery conferences, Court found rule’s subjects of discussion to be addressed extremely practical as guidelines for what is anticipated at discovery conference and required that both parties’ counsel file the following before discovery conference: (a) list of subjects to be addressed by discovery; (b) proposed plan and schedule of discovery; (c) proposed limitations to be placed on discovery in addition to those already adjudicated; and (d) any other proposed orders with respect to discovery. YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 88 (Trial Div. 2001).

All parties and their attorneys are under duty to participate in good faith in framing discovery plan. YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 88 (Trial Div. 2001).

After discovery conference, court order will identify issues; establish plan and schedule for discovery; set limitations, if any; and determine other matters for proper management of discovery. YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 88 (Trial Div. 2001).

Where plaintiffs sought tax returns and financial information of defendant and asserted that information might demonstrate how defendants managed to acquire funds in order to make various payments at issue in action, court determined discovery requests sought information relevant to breach of fiduciary duty claim. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

Where discovery requests did not specify a time limitation, court found such requests overbroad. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

§ 6(2) —Depositions

Deposition of a witness absent from the Territory is admissible as evidence in the High Court provided that the deposition is taken according to applicable rules, the party offering it cannot procure the attendance of the witness by process or other reasonable means, and the opposing party has an opportunity and motive to cross-examine the witness. T.C.R.Ev. 804(a)(5), (b)(1). Rakhshan v. Immigration Board, 15 A.S.R.2d 29.

The examining party may set a party's deposition at any place which he desires, though a court may issue a protective order specifying the time and place of a deposition upon a showing of good cause. T.C.R.C.P. 30. Beaver v. Cravens, 24 A.S.R.2d 115.

What constitutes "reasonable notice" to other parties in setting the time and place for a deposition is quite flexible, depending on the circumstances. T.C.R.C.P. 30(b)(1). Beaver v. Cravens, 24 A.S.R.2d 115.

Although pre-trial discovery is broad, deposition testimony is 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. Berleme v. Matagiese, 3 A.S.R.3d 118 (Trial Div. 1999).

An evasive or incomplete answer is treated as a failure to answer, and a motion to compel will be granted in such instance. Berleme v. Matagiese, 3 A.S.R.3d 118 (Trial Div. 1999).

A defendant is entitled to have the plaintiff’s attorney deposed to answer any question relating to anything contained in the complaint which the defendant does not understand and wants amplified, and is entitled to be told what proof the plaintiff has to support such charges. Berleme v. Matagiese, 3 A.S.R.3d 118 (Trial Div. 1999).

A motion to compel will not be granted as to a question which is argumentative and serves no purpose in providing additional discovery information. Berleme v. Matagiese, 3 A.S.R.3d 118 (Trial Div. 1999).

Opposing counsel may be deposed when no other means exists to obtain the desired information, and the information sought is relevant and nonprivileged, and the information is crucial to case preparation. Berleme v. Matagiese, 3 A.S.R.3d 118 (Trial Div. 1999).

Objections to the form of the question are proper objections for deposition, especially if it presumes a predicate. Berleme v. Matagiese, 3 A.S.R.3d 118 (Trial Div. 1999).

Where an objection to a question is based on attorney-client privilege, the basic rationale for asserting the privilege must be elicited for the court to make a meaningful evaluation of the privilege claim. Berleme v. Matagiese, 3 A.S.R.3d 118 (Trial Div. 1999).

A party is not required to answer questions which are not within his knowledge, and limits exist as to what a witness should be required to do in order to prepare to answer oral questions. Berleme v. Matagiese, 3 A.S.R.3d 118 (Trial Div. 1999).

Although deposition was rancorous and terminated prematurely, Court refused 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. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 149 (Trial Div. 1999).

Under T.C.R.C.P. 32(a)(3), a deposition is excludable when the deponent is not shown to be unavailable. TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

Under T.C.R.C.P. 32(a)(4), 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. TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

The examining party may set the deposition of a party at any place which he desires, subject to the power of the court to grant a protective order if deemed necessary. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

The court may issue a protective order designating the location for an oral deposition in order to protect the party being deposed from “undue burden or expense” upon a showing of good cause. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

A presumption exists that a non-resident defendant will be deposed at his place of residence. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

In the absence of exceptional or unusual circumstances, when a deponent resides at a substantial distance from the deposing party’s residence, the deposing party should be required to take the deposition at a location in the vicinity in which the deponent resides, even if the deponent is a party. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

§ 6(3) —Interrogatories

RESERVED

§ 6(4) —Production of Documents & Things

Defendants proffered no explanation as to how subpoenaed information is reasonably calculated to lead to discovery of admissible evidence inasmuch as information regarding party’s financial condition or net worth is generally considered irrelevant. Court found compliance with subpoena oppressive and unduly burdensome, given sensitive nature of plaintiff’s financial information and burden of producing requested documents. Court granted motion to quash subpoena duces tecum and issued protective order. Plaintiff’s motion for T.C.R.C.P. 11 sanctions was taken under advisement. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 20 (Trial Div. 2001).

Where plaintiffs sought tax returns and financial information of defendant and asserted that information might demonstrate how defendants managed to acquire funds in order to make various payments at issue in action, court determined discovery requests sought information relevant to breach of fiduciary duty claim. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

Requests for production under T.C.R.C.P. 34 may only be directed to the parties to the action. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

A requesting party may seek the production of documents or things which are in the possession, custody, or control of the responding party. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

“Control”, as used in T.C.R.C.P. 34, includes both the actual possession of the requested materials or the legal right to obtain the materials. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

The term “control”, as used in T.C.R.C.P. 34, is broadly construed. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

The party seeking production of documents or things under T.C.R.C.P. 34 bears the burden of establishing that the responding party controls the requested materials. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

An individual party to a lawsuit can be compelled to produce relevant information and documents relating to a non-party corporation of which it is an officer, director, or shareholder. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

Where requesting party established that responding party served on board of corporation, was one of the incorporators of corporation, was 33% shareholder of corporation, and was president of corporation, such was sufficient to show that responding party had control over corporation and could be expected to produce records of corporation. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

When financial information is relevant to the subject matter at issue it is discoverable. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

Courts perform a two prong test prior to ordering the disclosure of tax returns: first, the court must find that the returns are relevant to the subject matter of the action; and second, the court must find that there is a compelling need for the returns because the information contained therein is not otherwise readily obtainable. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

Once relevance has been established, the party resisting discovery bears the burden of proving that alternative sources would provide the required information. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

§ 6(5) —Physical & Mental Examinations

RESERVED

§ 6(6) —Requests for Admission

RESERVED

§ 6(7) —Protective Orders

RESERVED

§ 6(8) —Sanctions

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. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 149 (Trial Div. 1999).

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. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 149 (Trial Div. 1999).

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. Nua v. Sunia, 4 A.S.R.3d 234 (Trial Div. 2000).

When abusive discovery is shown, court may issue protective order circumscribing discovery to protect party from annoyance, embarrassment, oppression, or undue burden or expense. Progressive Ins. Co, Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 20 (Trial Div. 2001).

Court denied plaintiff’s motion to compel discovery, granted defendant’s motion for protective order, and awarded reasonable expenses of motion, including attorney’s fees. Plaintiff’s counsel may resume deposition but shall not ask irrelevant questions regarding reinsurers of insurance policy issued to plaintiff. YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 31 (Trial Div. 2001).

§ 6(9) —Expenses

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. Nua v. Sunia, 4 A.S.R.3d 234 (Trial Div. 2000).

Court denied plaintiff’s motion to compel discovery, granted defendant’s motion for protective order, and awarded reasonable expenses of motion, including attorney’s fees. Plaintiff’s counsel may resume deposition but shall not ask irrelevant questions regarding reinsurers of insurance policy issued to plaintiff. YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 31 (Trial Div. 2001).

Under T.C.R.C.P. 37(a)(4), the court has authority to award costs and attorney’s fees to the prevailing party on a motion to compel. Haleck v. TRT, Inc., 7 A.S.R.3d 164 (Trial Div. 2003).

§ 7 Summary Judgment

§ 7(1) —Standard

Party moving for summary judgment assumes burden of showing compliance with all statutory requirements necessary to support his position. Sec. 10.0112 R.C.A.S. Muagututi’a v. Vaovasa, 4 A.S.R. 105.

When parties maintain that they have settled a claim after trial had begun, but thereafter submit separate proposed judgments, court may treat submissions as cross motions for summary judgment. Jennings v. Tavai, 1 A.S.R.2d 81 (App. Div. 1983).

On motion for summary judgment, there was no genuine issue of material fact requiring trial on the merits where the parties differed in their characterizations of the material facts but the facts themselves were undisputed. Palelei v. Star Kist Samoa, Inc., 5 A.S.R.2d 162.

Court deciding a motion for summary judgment must assume the truth of the evidence presented by the non-moving party and draw from the evidence the inferences most favorable to the non-moving party. Lokan v. Lokan, 6 A.S.R.2d 44.

The main question in a motion for summary judgment is whether any triable issue of fact remains. Ah Mai v. American Samoa Government (Mem.), 11 A.S.R.2d 133.

On motion for summary judgment, facts asserted by the non-moving party are presumed to be true and the Court may draw such inferences from the non-moving party as are most favorable to that party. Ah Mai v. American Samoa Government (Mem.), 11 A.S.R.2d 133.

Summary judgment is appropriate if the pleadings and supporting papers show that 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). D. Gokal & Co. v. Daily Shoppers Inc., 13 A.S.R.2d 11.

In considering a motion for summary judgment, the court must consider all pleadings and supporting papers in the light most favorable to opposing party, and must also give such party the benefit of all inferences reasonably deducible from the evidence. T.C.R.C.P. 56. D. Gokal & Co. v. Daily Shoppers Inc., 13 A.S.R.2d 11

Party seeking injunction as matter of summary judgment must show that no material question of fact remains. T.C.R.C.P. 56. Tufono v. Vaeao, 13 A.S.R.2d 47.

Summary judgment is appropriate 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.

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 him. T.C.R.C.P. 56. Etimani v. Samoa Packing Co., 19 A.S.R.2d 1.

When a defendant has provided no showing regarding the context in which a release was signed--the negotiations preceding its execution; the circumstances under which it was signed; whether the underlying payment was a settlement under A.S.C.A. § 32.0668, commuted per A.S.C.A. § 32.0666; or whether the Commissioner had approved such settlement or issued a formal compensation order--an inference of invalidity must be drawn in plaintiff's favor for purposes of summary judgment. A.S.C.A. §§ 32.0668, 32.0666; T.C.R.C.P. 56. Etimani v. Samoa Packing Co., 19 A.S.R.2d 1.

If there is no genuine issue as to any material fact, summary judgment can be rendered if either party is entitled to a judgment as a matter of law. T.C.R.C.P. 56. Beaver v. Craven, 19 A.S.R.2d 14.

In a summary judgment motion, the non-moving party is to be given the benefit of all reasonable inferences to be drawn from the evidence. Estate of Tuilesu v. Asifoa, 20 A.S.R.2d 45.

Regarding a summary-judgment motion, a court assumes the truth of the evidence presented by the non-moving party and draws inferences most favorable to the non-moving party. American Samoa Power Authority v. National Pacific Insurance Co., 23 A.S.R.2d 100.

In determining whether "no genuine issue as to any material fact" exists, a court views the pleadings and papers supporting the summary-judgment motion in the light most favorable to the non-moving party. T.C.R.C.P. 56(c). Lang v. American Samoa Government, 24 A.S.R.2d 59.

In deciding a summary-judgment motion, a court views the pleadings and supporting papers in the light most favorable to the non-moving party; nonetheless, the parties' differing in their characterization of the facts but not the facts themselves does not create a "genuine issue of material fact." T.C.R.C.P. 56(c). Samoana Fellowship, Inc. v. American Samoa Power Authority, 24 A.S.R.2d 71.

Summary judgment is appropriate when no genuine issue of material fact exists. Jessop v. Hisatake, 25 A.S.R.2d 12.

Summary judgment is only appropriate when "no genuine issue as to any material fact" exists. In reviewing the pleadings and supporting papers, a court must view them in the light most favorable to the non‑moving party. That is, the facts must be beyond dispute, and the non‑moving party's factual assertions, supported by evidence such as affidavits, are presumed to be true. T.C.R.C.P. 56(c). YKL Japan Ltd., v. F/V Korbee #1, 25 A.S.R.2d 121.

In determining whether "no genuine issue as to any material fact" exists, a court views the pleadings and papers supporting the summary-judgment motion in the light most favorable to the non-moving party. T.C.R.C.P. 56(c). Lang v. American Samoa Government, 24 A.S.R.2d 59.

Summary judgment is a drastic remedy to be granted only where the requirements of Rule 56 have clearly been met. A motion for such a judgment does not entitle the court to try issues of fact. In deciding the existence of factual issues to be tried, a court must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought with the burden on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. Thus, summary judgment should not be granted unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances. YKL Japan Ltd., v. F/V Korbee #1, 25 A.S.R.2d 121.

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 him. Amerika Samoa Bank v. United Parcel Service, 25 A.S.R.2d 159.

Summary judgment is appropriate where 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. In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, and draw from such evidence the inferences most favorable to that party. Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 171.

Summary judgment is appropriate where 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. In ruling on such a 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 him. Asifoa v. National Pacific Insurance, 26 A.S.R.2d 23.

A defendant is not entitled to a trial upon the unsubstantiated hope that he can produce convincing evidence at trial. ASG Employees Federal Credit Union v. Galea`i, 26 A.S.R.2d 74.

Summary judgment is only appropriate when no genuine issue as to any material fact exists. In reviewing the pleadings and supporting papers, a court must view them in the light most favorable to the non-moving party. The facts must be "beyond dispute," and the non-moving party's factual assertions, supported by evidence such as affidavits, are presumed to be true. Plaza Department Stores v. Duchnak, 26 A.S.R.2d 82.

In ruling on a motion for summary judgment, 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 him. Plaza Department Store v. Duchnak, 26 A.S.R.2d 106.

Summary judgment should not be granted unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances. Plaza Department Stores v. Duchnak, 26 A.S.R.2d 82.

In ruling on a motion for summary judgment 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 him. American Samoa Government v. South Pacific Island Airsystems, Inc., 26 A.S.R.2d 132.

Summary judgment is a drastic and final remedy that operates to deprive the non-moving parties of their day in court. American Samoa Government v. South Pacific Island Airsystems, Inc., 26 A.S.R.2d 132.

Summary judgment is appropriate where 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. Rule 56. American Samoa Government v. South Pacific Island Airsystems, Inc., 26 A.S.R.2d 132.

It is not the duty of the court to assume or to provide the legal basis of a moving party's motion for summary judgment. T.C.R.C.P. 56. Richmond Wholesale Meat Co. v. J.M. Gebauer, Inc., 27 A.S.R.2d 61.

To determine that no material fact exists, the facts must be "beyond dispute," even though the non-moving party's factual assertions, supported by discovery material, are presumed to be true, and all inferences are construed in a light most favorable to the non-moving party. T.C.R.C.P. 56. Polynesian Airlines v. E.P.S., Inc., 27 A.S.R.2d 69.

To determine that no material fact exists on a motion for summary judgment, the facts must be "beyond dispute," even though the non-moving party's factual assertions, supported by discovery material, are presumed to be true, and all inferences are construed in a light most favorable to the non-moving party. T.C.R.C.P. 56. Kent Samoa v. Shimasaki, 27 A.S.R.2d 140.

T.C.R.C.P 56(d) demands that we establish uncontroverted facts only if practicable, not whenever possible. American Samoa Gov't Employees Federal Credit Union v. Sele, 28 A.S.R.2d 21.

The underlying purpose of T.C.R.C.P. 56(d) is to speed up litigation by eliminating before trial matters when there is no genuine issue of fact. American Samoa Gov't Employees Federal Credit Union v. Sele, 28 A.S.R.2d 21.

A court is generally required to grant partial summary judgment deciding certain factual issues, even when a complete disposition of the case is not possible. American Samoa Gov't Employees Federal Credit Union v. Sele, 28 A.S.R.2d 21.

The purpose of T.C.R.C.P. Rule 56(e) is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Carpenters Fiji, Ltd. v. Pen, 28 A.S.R.2d 202.

Upon a motion for summary judgment, the court is required to view the evidence and the inferences that can be drawn therefrom in the light most favorable to the opposing party. The burden is upon the moving party to show that there is no genuine issue of material fact in dispute, and all doubts must be resolved against the movant. Pita v. Garrett, 29 A.S.R.2d 141.

Summary judgment is only 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. BHP Petroleum South Pacific, Inc. v. Daitoh Trading Co. 1 A.S.R.3d 60 (Trial Div. 1997).

On motion for summary judgment, non-moving party's factual assertions, supported by evidence such as affidavits, are presumed to be true. BHP Petroleum South Pacific, Inc. v. Daitoh Trading Co. 1 A.S.R.3d 60 (Trial Div. 1997).

In reviewing the pleadings and papers supporting a motion for summary judgment, a court must view them in the light most favorable to the non-moving party. Where the facts and the law reasonably support only one conclusion, summary judgment is mandated. Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

A party against whom a claim is asserted may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

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. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 149 (Trial Div. 1999).

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. TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 149 (Trial Div. 1999).

Under T.C.R.C.P. 56(c), summary judgment is appropriate when, after the court views the pleadings and supporting papers in the light most favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Taylor v. Solaita, 3 A.S.R.3d 218 (Land & Titles Div. 1999).

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. Muavaefa`atasi v. American Samoa Gov’t, 4 A.S.R.3d 65 (Trial Div. 2000).

In considering 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. Muavaefa`atasi v. American Samoa Gov’t, 4 A.S.R.3d 165 (Trial Div. 2000).

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. Pouesi v. American Samoa Gov’t, 5 A.S.R.3d 164 (Trial Div. 2001).

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. Pouesi v. American Samoa Gov’t, 5 A.S.R.3d 164 (Trial Div. 2001).

On a motion for summary judgment, the court must view the pleadings and supporting papers in the light most favorable to the non-moving party. Pouesi v. American Samoa Gov’t, 5 A.S.R.3d 164 (Trial Div. 2001).

If the moving party on a motion for summary judgment makes a prima facie showing that would entitle him or her to a directed verdict if uncontroverted at trial, the burden then shifts to the adverse party, who must set forth specific facts showing that there is a genuine issue for trial. Pouesi v. American Samoa Gov’t, 5 A.S.R.3d 164 (Trial Div. 2001).

If the moving party on a motion for summary judgment makes a prima facie showing that would entitle him/her/it to a directed verdict if uncontroverted at trial, the burden then shifts to the adverse party, who must set forth specific facts showing that there is a genuine issue for trial. Nat'l Pac. Ins. Co., Ltd., v. Comm'r, 5 A.S.R.3d 183 (Trial Div. 2001).

A court deciding a motion for summary judgment must assume the truth of the evidence presented by the non-moving party and draw from the evidence the inferences most favorable to the non-moving party. YRT, Inc. v. Progressive Ins. Co., 6 A.S.R.3d 108 (Trial Div. 2002).

Court deciding motion for summary judgment must assume truth of evidence presented by non-moving party and draw inferences from evidence most favorable to non-moving party. Langkilde v. Nat'l W. Life Ins. Co., 6 A.S.R.3d 198 (Trial Div. 2002).

Summary judgment is only appropriate when no genuine issue as to material fact exists and moving party is entitled to judgment as matter of law. Langkilde v. Nat'l W. Life Ins. Co., 6 A.S.R.3d 198 (Trial Div. 2002).

Disputed legal questions present nothing for trial and are appropriately resolved on a motion for summary judgment. Boral Gas of American Samoa, Inc. v. Iaulualo, 6 A.S.R.3d 232 (Trial Div. 2002).

Summary judgment is appropriate when there is no genuine issue as to any material fact. Misipeka v. Legislature of American Samoa, 7 A.S.R.3d 96 (Trial Div. 2003).

On a motion for summary judgment, the court views the pleadings and supporting documents in the light most favorable to the non-moving party. Misipeka v. Legislature of American Samoa, 7 A.S.R.3d 96 (Trial Div. 2003).

Disputed legal questions present nothing for trial and are appropriately resolved on a motion for summary judgment. Misipeka v. Legislature of American Samoa, 7 A.S.R.3d 96 (Trial Div. 2003).

Judicial economy is not a factor the court may consider under T.C.R.C.P. 56. RDL, Inc. v. American Samoa Community College, 7 A.S.R.3d 103 (Trial Div. 2003).

T.C.R.C.P. 56(d) establishes a procedural mechanism whereby a district court can, with the acquiescence of the parties, narrow the factual issues for trial. American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

The standard for determining a Rule 56(d) motion is identical to the standard used for determining a motion brought under Rule 56(c). American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

Under T.C.R.C.P. 56(c), summary judgment is appropriate when the pleadings and other 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. American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

The party seeking summary judgment bears the burden of showing there is no genuine issue of material fact. American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

After the movant has shown that there is no genuine issue of material fact, the non-moving party must then affirmatively show there is a genuine issue for trial. American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

In considering a motion for summary judgment, all inferences are construed in a light most favorable to the non-moving party. American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

When both parties file cross motions for summary judgment, the court must consider each motion separately and apply controverted facts in a light most favorable to the nonmovant. American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

Summary judgment is appropriate where 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. Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

In ruling on a summary judgment motion, a court must: (1) view all pleadings and supporting documents in the light most favorable to the nonmoving party; and (2) treat the nonmoving party’s evidence as true and draw from such evidence the inferences most favorable to the opposing party. Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

On a motion for summary judgment, the moving party bears the burden of showing there is no genuine issue of material fact. Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

§ 7(2) —Opposition to Motion

The party opposing summary judgment has the burden, once movant has put forward a prima facie case, of showing that there exists genuine issues of material fact which render summary judgment inappropriate. Amerika Samoa Bank v. Pacific Reliant Industries, 20 A.S.R.2d 102.

As non‑moving parties, plaintiffs cannot prevail on a motion for summary judgment merely by asserting that a genuine issue exists for trial. Plaintiffs are not entitled to a trial upon the unsubstantiated hope that they can produce such evidence at trial. Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 18.

A non‑moving party's single affidavit, if inadequate, may be insufficient opposition. Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 18.

For summary judgment purposes, party must provide a minimum level of convincing proof when faced with opposing party's credible and convincing evidence. Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 171.

If the proof in support of a motion for summary judgment has a high degree of credibility, the opponent must produce convincing proof to warrant denial of the motion. Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 171.

Where the proof in support of the motion has a high degree of credibility the opponent must produce convincing proof. Thus, the burden on the moving party may be discharged by pointing out that there is an absence of evidence to support the nonmoving party's case. ASG Employees Federal Credit Union v. Galea`i, 26 A.S.R.2d 74.

On a motion for summary judgment the burden on the moving party may be discharged by pointing out that there is an absence of evidence to support the nonmoving party's case. American Samoa Government v. Bernard, 26 A.S.R.2d 110.

Motion for summary judgment is wholly insufficient where moving party did not file any affidavits or other materials allowed by T.C.R.C.P. 56, and did not cite any authority stating the appropriate standard of review for summary judgment, or affirming that summary judgment is even the proper remedy for failure to respond to a T.C.R.C.P. 36 request for admissions, or showing that the facts admitted, even if true, give rise to the relief prayed for in the complaint. T.C.R.C.P. 56. Richmond Wholesale Meat Co. v. J.M. Gebauer, Inc., 27 A.S.R.2d 61.

In American Samoa a party opposing another's motion for summary judgment will not be allowed to rest upon his pleadings or the assertions of lawyers who have no personal knowledge of the facts. Carpenters Fiji, Ltd. v. Pen, 28 A.S.R.2d 202.

As non-moving party to a motion for summary judgment, a defendant is not entitled to a trial upon the unsubstantiated hope that he can produce such evidence at trial. A defendant cannot prevail by merely asserting that a genuine issue exists for trial. American Samoa Gov’t Employees Federal Credit Union v. Hunkin, 31 A.S.R.2d 180.

Evidence necessary to defeat a motion for summary judgment may depend on the quality of the moving party's offering. If the proof in support of the motion has a high degree of credibility the opponent must produce convincing proof. American Samoa Gov’t Employees Federal Credit Union v. Hunkin, 31 A.S.R.2d 180.

Once a moving party has put forth a prima facie case, the party opposing summary judgment has the burden of showing that there are genuine issues of material fact which render summary judgment inappropriate. Estate of Young v. M/V Diana Lynn, 1 A.S.R.3d 154 (Trial Div. 1997).

If the party moving for summary judgment makes a prima facie case that would entitle the 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. Dameworth v. Am. Samoa Gov’t, 6 A.S.R.3d 242 (Trial Div. 2002).

Where opposing party objected to exhibit submitted in support of summary judgment motion and movant did not respond to objection, court properly excluded such exhibit from considerations pursuant to T.C.R.C.P. 56(e). American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

On a motion for summary judgment, the burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case. American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

A party opposing another’s motion for summary judgment will not be allowed to rest upon his pleadings or the assertions of lawyers who have no personal knowledge of the facts. American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

After the movant shows that there is no genuine issue of material fact on a motion for summary judgment, the nonmoving party must then bear the burden of affirmatively showing that there is a genuine issue for trial. Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

Under T.C.R.C.P. 5(a), a party opposing summary judgment must serve the movant with its opposition papers. Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

Where party knew of the service requirements under the rules and of the possible penalty for failing to affirmatively show a genuine issue for trial, yet failed to properly serve its opposition papers, Court concluded that such opposition papers would not be considered. Pratt & Whitney Canada v. Samoa Aviation Inc., 7 A.S.R.3d 198 (Trial Div. 2003).

§ 7(3) —Compared to 12(b)(6) Motion

SEE CIVIL PROCEDURE § 4(4) – COMPARED TO SUMMARY JUDGMENT MOTION

Insufficient pleadings are properly attacked by motion to dismiss for failure to state a claim rather than with motion for summary judgment. T.C.R.C.P. Rule 12(b)(6), Rule 56. Pene v. American Samoa Power Authority, 4 A.S.R.2d 152.

Court may treat a motion for summary judgment as a motion to dismiss for failure to state a claim when moving papers, though improperly styled, clearly state the latter. T.C.R.C.P. Rule 56, Rule 12(b)(6). Pene v. American Samoa Power Authority, 4 A.S.R.2d 152.

Where a motion to dismiss for failure to state a claim upon which relief may be granted presents matters which are outside the pleadings, the court will treat the motion as one for summary judgment. T.C.R.C.P. Rule 12(b). Mauga v. Lutu, 10 A.S.R.2d 115.

Standard of proof on a motion to dismiss at the conclusion of plaintiffs' evidence at trial, unlike the standard on a motion for summary judgment before trial, is that plaintiffs must prevail by a preponderance of the evidence. Willis v. Fai`ivae, 10 A.S.R.2d 121.

Dismissal of the complaint, not summary judgment, is the appropriate method of disposing of a case for failure to join an "indispensable party"; the rationale is that summary judgment is a judgment on the merits and bars the cause of action, whereas an order of dismissal only "abates" the claim and is without prejudice to the institution of a later action. T.C.R.C.P. 12(b)(7), 19, 56. Shon v. Mollerup Moving & Storage Co., 24 A.S.R.2d 50.

A motion to dismiss will be treated as a summary judgment motion when evidence extrinsic to the complaint is presented to and considered by the court. T.C.R.C.P. 12(b)(6), 56. Samoana Fellowship, Inc. v. American Samoa Power Authority, 24 A.S.R.2d 71.

The court treated a motion for default judgment as a motion for summary judgment when plaintiff had documents admitted into evidence and when a pro se defendant's unsigned, typed statement was treated as an answer. T.C.R.C.P. 55, 56. Tauoa v. Tino, 24 A.S.R.2d 88.

Conversion of a 12(b)(6) motion into a motion for summary judgment lies squarely with the court. ASG Employees Federal Credit Union v. Gurr, 26 A.S.R.2d 87.

§ 7(4) —Compared with Motion for Default Judgment

Evidence of amount of debt, presented in support of motion for default judgment or similar summary proceeding, should consist not of conclusory affidavit by attorney, but of bank ledgers and other direct evidence from which court can conclude for itself whether the amount has been correctly calculated. Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177.

A motion for summary judgment against a defaulting party is inappropriate when the civil-procedure rules expressly provide for a motion for default judgment, which is designed to minimize injustice to non-appearing parties. Fed. R. Civ. P. 55, 56; T.C.R.C.P. 55, 56. Amisone v. Talaeai, 22 A.S.R.2d 51.

The court treated a motion for default judgment as a motion for summary judgment when plaintiff had documents admitted into evidence and when a pro se defendant's unsigned, typed statement was treated as an answer. T.C.R.C.P. 55, 56. Tauoa v. Tino, 24 A.S.R.2d 88.

§ 7(5) —Compared with Motion for Partial Summary Judgment

A plaintiff who moves for summary judgment in an amount smaller than the amount he sought in his complaint, although he was legally entitled to judgment for the entire amount, thereby surrenders the right to further relief unless the caption or the text of the motion states or clearly implies that it seeks only a partial summary judgment. Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84.

Where complaint set forth a single obligation and in a single paragraph demanded the entire principal plus interest and expenses, and where court subsequently granted summary judgment for an amount smaller than the amount demanded in the complaint, the court should not later subdivide the demand into separate claims in order to construe the judgment as having only partly disposed of the case. Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84.

Rule requiring that trial judge examine pleadings and evidence to determine what material facts remain in dispute after granting motion for partial summary judgment applies only when judgment is not rendered upon whole case or for all relief requested. T.C.R.C.P. 56(d). Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84.

Although plaintiff who moved for summary judgment may have had subjective intent to seek additional amounts owed it, court will not construe judgment as only a partial summary judgment unless record contains objective indicia such that reasonable person could believe plaintiff had asked court to resolve only some issues but not others. Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84.

Under T.C.R.C.P. 56(d), 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. Taylor v. Solaita, 3 A.S.R.3d 218 (Land & Titles Div. 1999).

If a case involves other defenses that raise no material issues of fact they may be the subject of a partial summary adjudication in plaintiff’s favor in accordance with the procedure prescribed in Rule 56(d). American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

§ 7(6) —Within Court’s Discretion

A trial court possesses the discretion to deny a summary judgment motion. A summary judgment motion may be denied when the trial court desires an inquiry into the facts to clarify the application of the law, even if summary judgment is technically justified. This is especially true when a court may be able to avoid deciding difficult or uncertain questions of law by making factual determinations. YKL Japan Ltd., v. F/V Korbee #1, 25 A.S.R.2d 121.

A trial court possesses the discretion to deny a summary judgment motion when it desires an inquiry into the facts to clarify the application of the law. Plaza Department Stores v. Duchnak, 26 A.S.R.2d 82.

Where moving party has provided no clear demonstration of legal authority that would allow this court to enter a decision on the motion for summary judgment as a matter of law, the court may exercise its discretion to deny the motion for summary judgment without prejudice. T.C.R.C.P. 56. Richmond Wholesale Meat Co. v. J.M. Gebauer, Inc., 27 A.S.R.2d 61.

A motion for summary judgment may be denied at any time and for any reason when the court concludes that justice is served by proceeding to trial rather than resolving the case on motion. American Samoa Power Auth. v. National Pac. Ins. Co., Ltd., 30 A.S.R.2d 149.

§ 7(7) —By Affidavit

Affidavit by party moving for summary judgment, consisting of conclusory characterization of the moving party's own unidentified records, did not constitute evidence of the fact asserted therein; for the purpose of the motion for summary judgment, this question of fact must be resolved in favor of opposing party. Bank of Hawaii v. Pene, 8 A.S.R.2d 30.

Statements of counsel at oral argument on a motion for summary judgment are not a substitute for affidavits based on personal knowledge and should not be used by the court as a basis for factual determination. Palelei v. Star-Kist Samoa, Inc., 9 A.S.R.2d 35.

When one party has moved for summary judgment based on affidavits, depositions, or answers to interrogatories, the other party may not rest on the allegations in his pleadings but must set forth by affidavit, deposition, or answers to interrogatories specific facts showing that there is a genuine issue for trial. T.C.R.C.P. Rule 56(e). Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

Affidavits setting forth facts to support opposition to motion for summary judgment must be by one who has personal knowledge of the facts, not by attorney with no such personal knowledge. T.C.R.C.P. 56(e). Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

Motion for summary judgment based on a statement of facts going beyond the factual allegations of the complaint and unsupported by affidavit should be summarily denied. Ah Mai v. American Samoa Government (Mem.), 11 A.S.R.2d 133.

Where the only evidence as to the claims of two parties to shares of rental payments due is affidavits provided by those parties showing their respective percentages of interest in the rented land, those parties are entitled to summary judgment on the matter. T.C.R.C.P. Rule 56(e). American Samoa Government v. Tuiasosopo, 18 A.S.R.2d 98.

T.C.R.C.P. Rule 56(e) states clearly that "affidavits shall be made on personal knowledge, . . . [containing] facts as would be admissible..., and shall show affirmatively that the witness is competent to testify to the matters therein. Evidence necessary to defeat a motion for summary judgment may depend on the quality of the moving party's offering. If the proof in support of the motion has a high degree of credibility the opponent must produce convincing proof. Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 18.

A non‑moving party's single affidavit, if inadequate, may be insufficient opposition. Bryant v. Southwest Marine of Samoa, Inc., 25 A.S.R.2d 18.

An affidavit filed in support of summary judgment that does not comply with Rule 56(e) may be stricken. American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

§ 7(8) —Notice and Hearing

Notice of second motion for summary judgment, which if granted would increase judgment debt from $5 million to $17 million, should be given to interested parties who received prior notice that sale of vessel was to be made to satisfy the original $5 million judgment, even though action was in rem against the vessel and interested parties had not intervened, since they might have relied to their detriment on earlier notice. Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 18.

On a motion for summary judgment all parties must be given reasonable opportunity to present all material made pertinent to such a motion. ASG Employees Federal Credit Union v. Gurr, 26 A.S.R.2d 87.

Adherence to notice requirements is necessary in order to present the opposing party with an adequate opportunity to put forward their best response. ASG Employees Federal Credit Union v. Gurr, 26 A.S.R.2d 87.

§ 7(9) —Summary Judgment Denied

Plaintiff's motion for summary judgment would be denied where, on the construction of the facts most favorable to defendant, the defendant had a claim against the plaintiff which was a proper subject of setoff and which was at least as great as the amount of plaintiff's claim against defendant. South Seas Trading Co. v. Suamalie Construction Co., 6 A.S.R.2d 80.

Where there is no evidence of circumstances surrounding delay in filing suit, except for plaintiff's assertion that he did not know defendants were occupying his land until shortly before suit was filed, court could not grant summary judgment for defendants on the ground of laches. Roberts v. Sesepasara, 8 A.S.R.2d 43.

Trial court improperly awarded summary judgment in defendant employer's favor as material facts remained in dispute where, of the two grounds on which employer might legally have terminated plaintiff's employment, defendant denied one and plaintiff denied the other. Palelei v. Star-Kist Samoa, Inc., 9 A.S.R.2d 35.

Where bus driver's supervisor submitted affidavit that any use of bus other than transporting children to school was outside the scope of driver's employment, but there is evidence that passengers on school bus may have been government employees who had been working on the bus, whether driver was within scope of employment is a disputed material fact precluding summary judgment. Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

On motion for summary judgment, where there was some evidence of plaintiff's discovery of her injury and its cause more than one year before she brought action, but other evidence tended to show that plaintiff might have been convinced by defendants' agents that she had not been injured, a triable question of fact remained with respect to whether the action was barred by one-year statute of limitations. Ah Mai v. American Samoa Government (Mem.), 11 A.S.R.2d 133.

Plaintiff suing for value of goods paid for by defendants with checks drawn against insufficient funds was denied summary judgment where defendants raised triable issues of fact, claiming that plaintiff coerced them into sales contract; supplied unordered goods and overcharged for incomplete quantities of goods; and induced one of the defendants to sign a letter acknowledging liability by assuring them it was merely "for the record" and that they should "not worry" about it. D. Gokal & Co. v. Daily Shoppers Inc., 13 A.S.R.2d 11.

Summary judgment would be awarded plaintiff on issue of land ownership previously established in a proceeding having in rem effect, but would be denied with respect to injunction against interference or encroachment on land where the pleadings and papers did not clearly show such interference or encroachment and where survey of disputed land in prior proceeding showed existing structures that might raise equitable issues. Tufono v. Vaeao, 13 A.S.R.2d 47.

Summary judgment was denied since the permission of an owner of a rental car was a triable issue of fact where the court refused to imply or deny as a matter of law that the owner permitted drivers not specified in the rental contract. Mauga v. National Pacific Insurance, 15 A.S.R.2d 35.

When a defendant has provided no showing regarding the context in which a release was signed--the negotiations preceding its execution; the circumstances under which it was signed; whether the underlying payment was a settlement under A.S.C.A. § 32.0668, commuted per A.S.C.A. § 32.0666; or whether the Commissioner had approved such settlement or issued a formal compensation order--an inference of invalidity must be drawn in plaintiff's favor for purposes of summary judgment. A.S.C.A. §§ 32.0668, 32.0666; T.C.R.C.P. 56. Etimani v. Samoa Packing Co., 19 A.S.R.2d 1.

Since no release is valid except as otherwise provided for by the Workmen's Compensation Act, summary judgment was not available when the record was unclear on whether the release agreement was approved by the Workmen's Compensation Commission. A.S.C.A. § 32.0672; T.C.R.C.P. 56. Patau v. Rosendahl Corp., 19 A.S.R.2d 80.

When a court would have to assess evidence and the parties' credibility to resolve the issue of negligence, summary judgment is inappropriate. Ghiselli Bros., Inc. v. Ryan, Inc., 22 A.S.R.2d 57.

When a party disputed an assertion that a written insurance contract was the product of mutual mistake and so did not reflect the actual terms of the policy, a factual dispute precluding summary judgment existed. American Samoa Power Authority v. National Pacific Insurance Co., 23 A.S.R.2d 100.

Where plaintiff alleged that “delivery notice,” containing a demand for payment, had been signed by the defendant at the time of delivery of the goods, factual issue was raised as to whether the parties had a written contract. BHP Petroleum South Pacific, Inc. v. Daitoh Trading Co. 1 A.S.R.3d 60 (Trial Div. 1997).

Where a question of law regarding the legality of poker machines in the territory was not sufficiently settled, plaintiff’s motion to summary judgment premised on claim of illegality could not be granted. Muavaefa`atasi v. American Samoa Gov’t, 4 A.S.R.3d 65 (Trial Div. 2000).

Where statute of limitations defense was premised upon when plaintiff knew or should have known the evidentiary basis of his fraud claim, triable issue of fact existed and trial court’s grant of summary judgment was improper. Stancris Sales Co. v. Yong, 6 A.S.R.3d 39 (App. Div. 2002).

§ 7(10) —Summary Judgment Granted

Second motion for summary judgment, which if granted would increase judgment debt from $5 million to $17 million, raises questions (1) whether the proposed relief was requested in the pleadings and (2) whether contract debt was merged into the prior judgment, precluding further relief in excess of judgment amount. Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 18.

A plaintiff who moves for summary judgment in an amount smaller than the amount he sought in his complaint, although he was legally entitled to judgment for the entire amount, thereby surrenders the right to further relief unless the caption or the text of the motion states or clearly implies that it seeks only a partial summary judgment. Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84.

Where complaint set forth a single obligation and in a single paragraph demanded the entire principal plus interest and expenses, and where court subsequently granted summary judgment for an amount smaller than the amount demanded in the complaint, the court should not later subdivide the demand into separate claims in order to construe the judgment as having only partly disposed of the case. Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84.

Where party opposed summary judgment on the ground that there had been a settlement of the dispute, but even when the facts were taken in the light most favorable to this party no reasonable person could have concluded that the other party had agreed to a settlement, summary judgment would be granted. Bank of Hawaii v. Pene, 8 A.S.R.2d 30.

No reasonable person could conclude that creditor had agreed to a settlement proposed by debtor, and therefore no question of material fact was raised with respect to such settlement, where the evidence, taken in the light most favorable to the debtor, was that (1) debtor had told creditor's representative he had no intention of paying the debt but that he was willing to surrender a car that had been taken as collateral security; (2) creditor never verbally agreed to this proposal; (3) creditor had the legal right to take the car and then collect the remainder of the debt; (4) debtor had the subjective impression that creditor's representative was happy to receive the car, since otherwise the creditor would receive nothing at all; (4) creditor never took the car. Bank of Hawaii v. Pene, 8 A.S.R.2d 30.

Defendant was entitled to summary judgment on plaintiff's claim that she had been duly elected to the senate about four years before the commencement of the term for which she claimed to have been elected. Rev. Const. Am. Samoa art. II §§ 4, 6. Mauga v. Lutu, 10 A.S.R.2d 115.

Summary judgment would be awarded plaintiff on issue of land ownership previously established in a proceeding having in rem effect, but would be denied with respect to injunction against interference or encroachment on land where the pleadings and papers did not clearly show such interference or encroachment and where survey of disputed land in prior proceeding showed existing structures that might raise equitable issues. Tufono v. Vaeao, 13 A.S.R.2d 47.

Where auto insurance policy excluded coverage for damages incurred while the vehicle was operated by a person under the influence, but continued coverage provided on behalf of third party beneficiaries who did not consent to the vehicle being driven by the intoxicated driver, defendant insurance company was granted summary judgment against plaintiff insured who had not consented to his intoxicated brother driving the vehicle, since the exception to the exclusionary clause did not apply where the indemnity and/or insurance was provided on behalf of the insured. Thompson v. National Pacific Insurance, 16 A.S.R.2d 114.

Summary judgment was appropriate when plaintiff proved the only debt it sought to collect and defendants presented no evidence to support their suggestion, contained in an affidavit, that they were entitled to offsets. T.C.R.C.P. 56. Nelson & Robertson Pty., Ltd. v. U Suk Ko, 19 A.S.R.2d 12.

Summary judgment is appropriate when the only issue raised by an objector to a land/building separation agreement is identical to the issue she and her predecessor raised in a previous case and that issue was litigated and decided between the parties. T.C.R.C.P. 56. Fanene v. Fanene, 19 A.S.R.2d 69.

If a case has not been brought within the time limits of A.S.C.A. § 43.0120, summary judgment may be properly entered against plaintiff(s). Patau v. Rosendahl, 20 A.S.R.2d 77.

§ 7(11) —Appropriate Issues For Summary Judgment

Whether a particular matai has the power to evict people living on communal land depends on many facts and circumstances and is generally not a question for summary judgment. T.C.R.C.P. 56. Fanene v. Fanene, 19 A.S.R.2d 69.

Since issue of negligence depends on the reasonableness of a party's conduct, it cannot ordinarily be disposed of by summary judgment. Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

Questions as to intent, as well as questions going to knowledge, timing, and control, are generally not appropriate for summary judgment. American Samoa Government v. South Pacific Island Airsystems, Inc., 26 A.S.R.2d 132.

Where statute of limitations defense was premised upon when plaintiff knew or should have known the evidentiary basis of his fraud claim, triable issue of fact existed and trial court’s grant of summary judgment was improper. Stancris Sales Co. v. Yong, 6 A.S.R.3d 39 (App. Div. 2002).

Summary judgment is properly used for interpreting a contract whose terms are considered by opposing parties to be clear and unambiguous, despite disagreement between the parties as to what the agreement provides. American Samoa Power Auth. v. Deutz MWM Far East (PTE) Ltd., 7 A.S.R.3d 178 (Trial Div. 2003).

§ 7(12) —Standard of Review

The appellate court reviews a grant of summary judgment de novo. Thompson v. National Pacific Insurance, 20 A.S.R.2d 85.

§ 7(13) —Grounds for Appeal

T.C.R.C.P. 56(f), which allows a party opposing a motion for summary judgment to move for a continuance so that it may secure facts by affidavit sufficient to oppose the motion, is not a proper basis for appeal, but must be invoked prior to the Court’s ruling on the summary judgment motion. Alamoana & Yu-Tong Co. v. American Samoa Gov't, 4 A.S.R.3d 3 (App. Div. 2000).

§ 8 Injunctions

SEE REAL PROPERTY § 15(2) – INJUNCTIONS

§ 8(1) —General Provisions

The automatic stay provided in the Bankruptcy Act differs from an injunction or temporary restraining order only in that the stay becomes binding without an affirmative act of the bankruptcy court. 11 U.S.C. § 362(d)&(e). Southwest Marine of Samoa, Inc., v. S & S Contracting, Inc., 5 A.S.R.2d 70.

Punishment is not the purpose behind injunctive relief. Leaana v. Laban (Mem.), 12 A.S.R.2d 93.

Party seeking injunction as matter of summary judgment must show that no material question of fact remains. T.C.R.C.P. 56. Tufono v. Vaeao, 13 A.S.R.2d 47.

In apparent recognition of the unusual nature of interests often being asserted in Samoan land disputes, the territorial legislature has provided that in such disputes a justice may make such preliminary orders as to him seem just to restrain any Samoan from exercising any right or doing any act, matter, or thing affecting or concerning any Samoan land pending the outcome of the litigation, without requiring that any specific irreparable harm be shown. A.S.C.A. § 43.0303. Leaana v. Laban (Mem.), 12 A.S.R.2d 93.

Punishment is not the purpose behind injunctive relief. Leaana v. Laban (Mem.), 12 A.S.R.2d 93.

Summary judgment would be awarded plaintiff on issue of land ownership previously established in a proceeding having in rem effect, but would be denied with respect to injunction against interference or encroachment on land where the pleadings and papers did not clearly show such interference or encroachment and where survey of disputed land in prior proceeding showed existing structures that might raise equitable issues. Tufono v. Vaeao, 13 A.S.R.2d 47.

Enactment of summary eviction statute did not deprive the Court of its pre-existing general jurisdiction to issue injunctions and declaratory judgments and to award damages. A.S.C.A. § 43.1401 et seq. Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20.

The High Court's general admiralty jurisdiction includes limiting a shipowner's liability to the value of the ship, although lacking the statutory power of federal district courts to enforce this principle by injunction, pending the outcome of the limitation proceeding. Fa'atasiga v. M/V Ocean Pearl, 19 A.S.R.2d 59.

The High Court possesses the statutory authority to issue an injunction if it deems money damages to be an inadequate remedy; as such, it may order a special shareholders' meeting if a board of directors, though lacking any discretion in the matter, fails to call a meeting. A.S.C.A. § 43.1302. Lutali v. Foster, 24 A.S.R.2d 39.

The sa'o of a family is the only person who is authorized to seek injunctive relief in actions concerning disputes or controversies over communal land; if the title is vacant or the sa'o is incapacitated, the application may be brought by (1) two blood matai male members of the family over age 18, or (2) if the family lacks two blood matai male members, two blood members of the family over age 18, if either is untitled or a female. A.S.C.A. § 41.1309(b). Savea v. Tunu, 24 A.S.R.2d 63.

A plaintiff's attorney's fees are ordinarily excluded from judgments for injunctive relief in the absence of statutory authorization or special circumstances. Thompson v. Toluao, 24 A.S.R.2d 127.

The Federal Anti‑Injunction Act prevents the High Court, at any level, from restraining the assessment of collection of any federal tax. 26 U.S.C. §§ 876, 7421(a). Alamoana Recipe Inc., v. American Samoa Government, 25 A.S.R.2d 46.

The Federal Anti‑Injunction Act is applicable to temporary, as well as permanent pleas for injunctive relief. Alamoana Recipe Inc., v. American Samoa Gov't, 25 A.S.R.2d 46.

Evidence received prior to trial on a motion for temporary injunction becomes part of the record upon trial on the merits, pursuant to T.C.R.C.P. 65, incorporated by T.C.R.L.T. 5. Talauega v. Mulipola, 25 A.S.R.2d 74.

Trial court decisions regarding temporary restraining orders are appealable only when evident risk of harm cannot be corrected by the preliminary injunction review, or when the decisions are effectively final dispositions of the case. Alamoana Recipe Inc., v. American Samoa Gov't, 25 A.S.R.2d 97.

The court may issue a temporary restraining order if sufficient grounds for its issuance have been established by affidavit. Korea Deep Sea Fisheries Association v. Ho Pyo Hong, 31 A.S.R.2d 162.

§ 8(2) —Preliminary Injunctions

Where court found that circumstances required expedited hearing on motion for preliminary injunction, defendants who had not had time to retain counsel could redress any injury occasioned by the short notice by retaining counsel and bringing the matter for another hearing. Togiola v. Tafesilafa'i, 4 A.S.R.2d 54.

Pursuant to power to make "such order as to him may seem just" in any land case, Chief Justice or Associate Justice of High Court need not stop at denying plaintiff's meritless claim for relief, but may issue preliminary injunction restraining plaintiff from interference with rights of defendant as delineated in earlier judgment. A.S.C.A. § 43.0304. Sialega v. Taito , 5 A.S.R.2d 99.

Hardship is one factor the court must consider in determining whether to issue a preliminary injunction. Sotoa v. Togotogo, 7 A.S.R.2d 93.

To issue a preliminary injunction a court must find that the applicant has a substantial likelihood of prevailing on the merits at trial, and without such injunction will suffer great injury before a full trial. A.S.C.A. § 43.1301(j)(1)-(2). Leaana v. Laban (Mem.), 12 A.S.R.2d 93.

Preliminary injunction may issue only if petitioner shows sufficient grounds after a hearing inter partes duly noticed. A.S.C.A. § 43.1301(g). Gaoa v. Tulifua, 13 A.S.R.2d 30.

To have sufficient grounds for issuing a preliminary injunction, a court must find that petitioner has a substantial likelihood of prevailing on the merits at trial and without such injunction will suffer great or irreparable injury before a full trial. A.S.C.A. § 43.1301(j). Gaoa v. Tulifua, 13 A.S.R.2d 30.

Sufficient grounds for issuing a preliminary injunction consist of (1) a substantial likelihood that the applicants will prevail at trial on the merits, and (2) great or irreparable harm to the applicant. A.S.C.A. § 43.1301(j). Talauega v. Mulipola, 22 A.S.R.2d 7.

Though an injunction is usually inappropriate for past acts of trespass because the remedy at law is adequate, both injunctive relief and compensatory damages may be granted for a continuing trespass. Letuli v. Le'i, 22 A.S.R.2d 77.

Issuance of a preliminary injunction requires a plaintiff's written undertaking to pay defendant's damages and costs, up to a specified amount and with sufficient sureties as the court may determine, which may result from the injunction if a permanent injunction is not granted and defendant is awarded damages and costs. A.S.C.A. § 43.1309(a). Gurr v. Scratch, 22 A.S.R.2d 103.

Being an extraordinary remedy, a preliminary injunction is granted only when clearly warranted and may be denied when administrative remedies have not been exhausted. A.S.C.A. § 4.1040. Le Vaomatua v. American Samoa Government, 23 A.S.R.2d 11.

A preliminary injunction may be issued only when (1) a substantial likelihood exists that the applicant will prevail at trial on the merits and that a permanent injunction will be issued; and (2) great or irreparable injury will result to the applicant before a full and final trial on a permanent injunction. Le Vaomatua v. American Samoa Government, 23 A.S.R.2d 11.

A party seeking a preliminary injunction must post security to cover the costs and damages of a party wrongfully enjoined or restrained prior to a trial on the merits. A.S.C.A. § 41.1309. Le Vaomatua v. American Samoa Government, 23 A.S.R.2d 11.

Sufficient grounds for issuing a preliminary injunction requires showing (1) a substantial likelihood that the applicant will prevail at the trial on the merits and that a permanent injunction will be issued; and (2) great or irreparable injury to the applicant before a full and final trial can be held regarding a permanent injunction. A.S.C.A. § 43.1301(j). Lefiti v. Tauanu'u, 24 A.S.R.2d 68.

A party seeking a preliminary injunction bears the burden of showing that great or irreparable injury will occur before a full and final trial can be held on whether a permanent injunction should issue. A.S.C.A. § 43.1301(j)(2). Timu v. McMoore, 24 A.S.R.2d 84.

For purposes of a preliminary injunction, a request for surety is inappropriate when the subject matter of the request relates to communal property issues. A.S.C.A. § 41.1309(b). Mamea v. American Samoa Power Authority, 26 A.S.R.2d 47.

The court may issue a preliminary injunction only after a hearing in which sufficient grounds have been established by a preponderance of the evidence. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 101.

A.S.C.A. § 1309(a) requires, prior to the issuance of a preliminary injunction, a written undertaking with sufficient sureties to assure that enjoined parties will receive the costs and damages that they may sustain by reason of the injunction, if the court decides that the applicant should have been entitled to the injunction or should pay damages as the court may determine. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 179.

A preliminary injunction during the pendency of an action is appropriate when "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 "great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue." A.S.C.A. § 43.1301(j). Pritchard v. Estate of Fui`availiili, 29 A.S.R.2d 112.

If a party does not meet the burden of showing irreparable harm before trial when applying for a preliminary injunction, a court need not consider the issue of likelihood of success on the merits at trial. Pritchard v. Estate of Fui`availiili, 29 A.S.R.2d 112.

The court will not stay proceedings so that a party may meet the necessary jurisdictional requirements in an action for a preliminary injunction pertaining to communal land when the party fails to meet the requirements for a preliminary injunction. Maiava v. Tufele, 30 A.S.R.2d 31.

A preliminary injunction may be ordered under American Samoan law when it is shown: (1) that 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 before a full and final trial can be fairly held on whether a permanent injunction should issue. Vaella’a v. Sunia, 1 A.S.R.3d 88 (Trial Div. 1997).

Admissible evidence adduced at preliminary injunction hearing will be made part of the trial record and need not be repeated at the trial on the merits. Gurr v. Gurr, 1 A.S.R.3d 203 (Land & Titles Div. 1997).

Sufficient grounds for the issuance of a preliminary injunction exist where (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 before a full and final trial can be fairly held on whether a permanent injunction should issue. Pagofie v. Matagi, 1 A.S.R.3d 227 (Land & Titles Div. 1997).

A preliminary injunction should be granted where "sufficient grounds," are shown pursuant to the requirements of A.S.C.A. § 43.1301(g) and (j). First, the party seeking the injunction must show the greater likelihood of prevailing at trial. Second, the equities must weigh in favor of the party seeking the injunction and show that party would certainly suffer cognizable immediate injury, if the injunction is not granted. I’aulualo v. I’aulualo, 1 A.S.R.3d 230 (Land & Titles Div. 1997).

Under A.S.C.A. § 43.1303(a)(1) a preliminary injunction may be issued only after a hearing in which sufficient grounds for the issuance of such injunction has been established by a preponderance of the evidence. B.H.P. Petroleum South Pac., Inc. v. American Samoa Gov’t, 2 A.S.R.3d 1 (App. Div. 1998).

Under A.S.C.A. § 43.1401(j), sufficient grounds for the issuance of a preliminary injunction require 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 that great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue. Fanene v. Pago Pago Catholic Church, 3 A.S.R.3d 211 (Land & Titles Div. 1999).

A preliminary injunction may only issue upon applicant’s showing of sufficient grounds after a duly noticed hearing inter partes. Uiagalelei v. Fia, 4 A.S.R.3d 175 (Trial Div. 2000).

In order to constitute the sufficient grounds necessary for the issuance of a preliminary injunction, a party must show: (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 before a full and final trial can be fairly held on whether a permanent injunction should issue. Uiagalelei v. Fia, 4 A.S.R.3d 175 (Trial Div. 2000).

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 that (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. Save Family v. Leone Catholic Parish, 4 A.S.R.3d 265 (Land & Titles Div. 2000).

Under A.S.C.A. § 43.0304, the court is authorized to issue appropriate interim orders in land actions, and where there are prospects of confrontational episodes between the parties, they may be mutually enjoined from harassing the other side during the pendency of the action. Save Family v. Leone Catholic Parish, 4 A.S.R.3d 265 (Land & Titles Div. 2000).

A preliminary injunction is appropriate only when there is (a) a substantial likelihood that at trial on the merits the applicant will prevail and obtain a permanent injunction, and (b) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on the propriety of a permanent injunction. Gi v. American Samoa Gov't, 5 A.S.R.3d 254 (Land & Titles Div. 2001).

Although normal procedure was to stay proceedings pending administrative decision, where plaintiff modified request for injunctive relief, seeking instead the removal of a constructed sidewalk, such modification required full consideration of the property rights of the parties for both preliminary and permanent injunction purposes and rendered the case ripe for trial. Court properly considered case at that point, and would have done the parties a disservice had it delayed further. Gi v. American Samoa Gov't, 5 A.S.R.3d 259 (Land & Titles Div. 2001).

A preliminary injunction is properly issued when there is a substantial likelihood the applicant will prevail at trial on the merits and obtain a permanent injunction against the opposing party, and great or irreparable injury will result to the applicant before a full and final trial can be fairly held on the permanent injunction issue. American Samoa Rugby Football Ass’n v. Godinet, 7 A.S.R.3d 161 (Trial Div. 2003).

In order to show a substantial likelihood of success at trial on the merits, to support a motion for a preliminary injunction, a movant merely needs to raise questions so serious and difficult as to call for more deliberate consideration, or at least demonstrate a fair question for litigation. Samoa Aviation, Inc. v. Am. Samoa Gov’t, 7 A.S.R.3d 191 (Trial Div. 2003).

As a general proposition, the availability of an adequate legal remedy precludes equitable injunctive relief. Samoa Aviation, Inc. v. Am. Samoa Gov’t, 7 A.S.R.3d 191 (Trial Div. 2003).

The existence of a legal remedy is not alone sufficient to deprive a movant of equitable relief—it must be speedy, adequate, and efficacious, and preserve the movant’s rights at the present time and not as of a future date. Samoa Aviation, Inc. v. Am. Samoa Gov’t, 7 A.S.R.3d 191 (Trial Div. 2003).

Where movant demonstrated that defendant had engaged in an ongoing course of conduct that was tantamount to unfair, and possibly bad faith, interfering with the very performance term under which sought termination of the lease, movant had sufficiently shown “substantial likelihood of success at trial on the merits” in order support a preliminary injunction. Samoa Aviation, Inc. v. Am. Samoa Gov’t, 7 A.S.R.3d 191 (Trial Div. 2003).

The ruin of a party’s business constitutes irreparable harm. Samoa Aviation, Inc. v. Am. Samoa Gov’t, 7 A.S.R.3d 191 (Trial Div. 2003).

§ 8(3) ¾Injunctions Granted

Court will issue preliminary injunction against any party who refuses to allow surveys by opposing parties on land claimed and occupied by him. Satele v. Uiagalelei, 6 A.S.R.2d 109.

Preliminary injunction restraining defendants from further construction on specified lands until land use and building permit applications are approved by plaintiff was appropriate where (1) the plaintiff objected to the construction only because the defendants had undermined his authority as senior matai by holding themselves out on the permits as owners of the land; (2) plaintiff's claim was supported by the preponderance of the evidence at the preliminary hearing; and (3) the injunction would not prevent defendants from completing their construction, since plaintiff had given his word that he would approve the permits if they were submitted to him. Sotoa v. Togotogo, 7 A.S.R.2d 93.

Preliminary injunction would be granted enjoining defendant from misrepresenting on the public record that family land was owned by non-matai family member who had signed her building permit application; the defendant would have ten days to rectify her building permit to reflect family ownership and family approval given under the signature of the matai with the appropriate family authority. Leaana v. Laban (Mem.), 12 A.S.R.2d 93.

Plaintiff established sufficient grounds and was granted a preliminary injunction enjoining defendant from interfering with attempts to repair damage to plaintiff's home, where plaintiff's claim to reside on family lands was based on the fact that the matai and family had permitted her to use and occupy the homesite for ten years, while defendant's claim was based on the more tenuous ground that her immediate family exclusively owned the communal land in issue. A.S.C.A. §§ 43.1301(g),(j). Uli v. Talaeai, 16 A.S.R.2d 14.

Preliminary injunction was granted where plaintiff showed he was likely to prevail on the merits at trial and would suffer great injury before then if defendant was not enjoined from continuing construction of a house on land whose ownership was disputed. A.S.C.A. § 43.1301(j). Utu v. Paolo, 16 A.S.R.2d 113.

Preliminary injunction was granted to a matai when a family member attempted to lease family land to a non-family member in a clear attempt to usurp the matai's pule. Sagapolutele v. Tala'i, 20 A.S.R.2d 16.

Once a grantee has received and registered a deed to land, a subsequent deed has no effect, and so an injunction properly enjoined a later purchaser from interfering with the prior grantee's use and enjoyment of the land. Sa v. Vollrath, 21 A.S.R.2d 37.

Where party expressed intent to prevent new landowner from exercising its ownership rights and continually trespassed on property, interfering with new landowner’s ability to lease premises and threatening cancellation of the land sale, such actions established the necessary criteria for issuance of a permanent injunction. Amerika Samoa Bank v. Hunkin, 4 A.S.R.3d 278 (Land & Titles Div. 2000).

Where eviction would irrevocably disrupt sale of company, and cause territory to lose its only “Part 121” carrier, element of “great or irreparable injury” was shown, justifying preliminary injunction. Samoa Aviation, Inc. v. Am. Samoa Gov’t, 7 A.S.R.3d 191 (Trial Div. 2003).

§ 8(4) ¾Injunctions Denied

Court would not issue preliminary injunction forbidding senior matai of family to interfere with ongoing construction on family land, since to do so would invade the traditional decision making powers of the matai and effect a change in the status quo in advance of trial on the merits. Mailo v. Nua, 5 A.S.R.2d 59.

Where evidence indicated that extraordinary generation of fumes resulted from scheduled annual fuel tank cleaning process, process had been completed and fume level had subsided, and process would not be repeated for about a year, neighboring residents had an adequate remedy at law and were not entitled to a preliminary injunction against fuel storage at facility in question. Tavai v. American Samoa Government, 6 A.S.R.2d 97.

Even when minority shareholder has proved that she will probably prevail at trial on at least some charges of impermissible self-dealing by corporate management, she is not entitled to a preliminary injunction unless she also proves that she or the corporation will be irreparably injured if no interim relief is granted pending trial on the merits. Haythornwaite v. Transpac Corp., 6 A.S.R. 2d 110.

Preliminary injunction against defendant's unauthorized construction on family communal land would be denied, as injunction would serve no purpose but punishment for past deeds, where: defendant had been assigned the building site by the late senior matai; defendant was rebuilding a home destroyed by fire; plaintiff matai did not object to defendant's having a home on communal land, but only to her doing so without his signature on the building permit; defendant would owe her contractor liquidated damages for any delay; and the normal requirement of security or bond requirement was not applicable. A.S.C.A. § 41.1309(b). Leaana v. Laban (Mem.), 12 A.S.R.2d 93.

Preliminary injunction against construction on certain land was denied where petitioner's case consisted of a claim to the land based on an uncertain family history, while respondent claimed ownership based upon a differing family history plus a showing of established use and settled occupation; and where petitioner did not show that the construction would irreparably alter the land or cause any other great or irreparable injury. Gaoa v. Tulifua, 13 A.S.R.2d 30.

Injunctive relief was denied absent surveys delineating the exact interests of plaintiffs which required such relief. Vaivao v. Craddick, 14 A.S.R.2d 108.

Plaintiff failed to establish sufficient grounds for a preliminary injunction enjoining defendant/matai from building on a portion of family communal land, where the court had previously found that the matai's sleeping quarters were traditionally located at that site, the matai was building the home as sa`o for the benefit of the extended family rather than for herself or her immediate family, and the plaintiffs failed to show they would suffer great or irreparable harm if an injunction did not issue. Mauga v. Asuega, 17 A.S.R.2d 4.

In denying a preliminary injunction, the court balanced the relative hardships of plaintiff's legitimate nuisance complaints and a business' significant financial detriment from the proposed constraints, as well as the public interest in having the business available for consumers' use. Gurr v. Scratch, 22 A.S.R.2d 103.

A preliminary injunction is unwarranted when an environmental organization fails to plead specific harm to itself or its members and when it did not seek a stop order from the territorial Development Planning Office. A.S.C.A. §§ 4.1040, 24.0505(c). Le Vaomatua v. American Samoa Government, 23 A.S.R.2d 11.

Suits to restrain assessment or collection of any federal tax in any court are prohibited by the federal Anti-Injunction Act. 26 U.S.C. § 7421(a). Alamoana Recipe Inc. v. American Samoa Gov't, 24 A.S.R.2d 156.

Where halting construction would promote waste by exposing a partially built structure to the ravages of the elements, the equities weigh against it. Fanene v. Pago Pago Catholic Church, 3 A.S.R.3d 211 (Land & Titles Div. 1999).

Where a seawall benefits all parties in a land dispute, and the presence of a trench and construction materials and a planned monument and park do not create great or irreparable harm, and where delay of a project will likely increase costs, a preliminary injunction will not be issued. Save Family v. Leone Catholic Parish, 4 A.S.R.3d 265 (Land & Titles Div. 2000).

§ 8(5) ¾Substantial Likelihood of Success

Even when minority shareholder has proved that she will probably prevail at trial on at least some charges of impermissible self-dealing by corporate management, she is not entitled to a preliminary injunction unless she also proves that she or the corporation will be irreparably injured if no interim relief is granted pending trial on the merits. Haythornwaite v. Transpac Corp., 6 A.S.R.2d 110.

A party seeking preliminary injunction need not show with absolute certainty that he will prevail on the merits, nor is a movant required to prove a greater than fifty percent likelihood that they will prevail on the merits. A movant merely needs to raise questions so serious and difficult as to call for more deliberate consideration, or at least demonstrate a fair question for litigation. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 101.

A court tests substantial likelihood of success by whether the movant has a good chance of success, evaluated in the court's discretion, not measured by any mathematical probability, and taking into account serious issues calling for more deliberate consideration. Vaella’a v. Sunia, 1 A.S.R.3d 88 (Trial Div. 1997).

Where the evidence does not lend substance to the plaintiff’s mere claim of ownership, but there is support for the position of the defendant, there is not a substantial likelihood that the plaintiff will prevail at trial. Fanene v. Pago Pago Catholic Church, 3 A.S.R.3d 211 (Land & Titles Div. 1999).

If a preliminary injunction applicant demonstrates a legitimate issue to litigate with more deliberate consideration, the criterion of likely success on the merits at trial is sufficiently met. Fiame v. Tuiolemotu Family, 6 A.S.R.3d 310 (Land & Titles Div. 2002).

§ 8(6) ¾Irreparable Injury

In a Samoan land dispute between members of the same family, building a house on the disputed land will cause great and irreparable injury within the meaning of a statute regulating injunctive relief, since at the trial on the merits the court might find that the senior matai of the family has an obligation to consult with family members before building the house. Talili v. Satele (Mem.), 3 A.S.R.2d 36.

A party should not be allowed to avoid an injunction that would otherwise issue against him simply by doing all the irreparable harm he plans to do with no advance warning to those who will be injured. Talili v. Satele (Mem.), 3 A.S.R.2d 36.

Where plaintiff family member admitted that he had other living quarters, refusal of court to issue a preliminary injunction forbidding senior matai of family to interfere with ongoing construction on family land would not be likely to cause irreparable injury. A.S.C.A. § 43.1301(j). Mailo v. Nua, 5 A.S.R.2d 59.

Indignity and sense of hurt felt by petitioners with respect to respondents' construction on disputed land was not "irreparable injury" within meaning of the preliminary injunction statute. A.S.C.A. § 43.1301(j). Gaoa v. Tulifua, 13 A.S.R.2d 30.

When considering the irreparable harm criteria in an application for an injunction pending appeal, the court needs to balance the equities. Craddick Development, Inc. v. Craddick, 29 A.S.R.2d 64.

The law treats harm to land as unique. Loss of land cannot be replaced by like land. Craddick Development, Inc. v. Craddick, 29 A.S.R.2d 64.

Where a permanent concrete structure does not constitute per se an irreversible and irremediable encumbrance to land, there is no great or irreparable injury to the plaintiff. Fanene v. Pago Pago Catholic Church, 3 A.S.R.3d 211 (Land & Titles Div. 1999).

§ 8(7) —Permanent Injunctions

As an equitable remedy, the most distinguishing prerequisite of permanent injunctive relief is the inadequacy of a remedy at law, usually money damages. A.S.C.A. § 43.1302. Thompson v. Toluao, 24 A.S.R.2d 127.

Actual physical interference with the use and enjoyment of another's land constitutes the most common type of nuisance and is subject to the issuance of a permanent injunction. A.S.C.A. § 43.1302. Thompson v. Toluao, 24 A.S.R.2d 127.

A trial court's grant of permanent injunctive relief is reviewed for an abuse of discretion, or application of erroneous legal principles. Le`i v. Olo, 25 A.S.R.2d 33.

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 of wrong. Amerika Samoa Bank v. Hunkin, 4 A.S.R.3d 278 (Land & Titles Div. 2000).

The court may issue a permanent injunction only after full and final trial on the merits has been conducted and a determination has been made that a judgment for money damages will provide an inadequate remedy. CSS, Inc. v. Poasa, 5 A.S.R.3d 140 (Trial Div. 2001).

Injunctive relief was proper where, despite having executed agreement to dissociate himself from company, party continued to act on behalf of company and interfere with its activities. CSS, Inc. v. Poasa, 5 A.S.R.3d 140 (Trial Div. 2001).

§ 8(8) —Compared to Stay Pending Appeal

The decision to grant or deny a stay pending appeal, similar to that on a preliminary injunction, depends partly on the "balance of equities" and partly on the likelihood that the appeal will be successful. T.C.R.C.P. 62(a),(c). Asifoa v. Lualemana, 17 A.S.R.2d 10.

An injunction will be stayed in the following situations: there is a strong chance the judgment will be vacated on appeal; compliance with the judgment during the pendency of the appeal would amount to an effective denial of the right to appeal or would otherwise work extraordinary hardship on the appellant; little or no hardship would be imposed on adverse parties by appellant's non-compliance; or some combination of these conditions overcomes the presumption in favor of allowing each party the present enjoyment of his lawful rights. Asifoa v. Lualemana, 17 A.S.R.2d 10.

In assessing the likelihood of success on appeal, a court may stay an injunction when it has enough doubt about the substantive correctness of its decision, such as when new and difficult questions of law are involved. Asifoa v. Lualemana, 17 A.S.R.2d 10.

General principle of stays of injunctive relief and granting of injunctions pending appeal is preservation of the status quo pending appeal. Asifoa v. Lualemana, 17 A.S.R.2d 100.

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. A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8. Lutali v. Foster, 24 A.S.R.2d 81.

Corporate directors claiming economic loss are not entitled to a stay of an injunction pending appeal when they lack standing because they are not parties to the lawsuit against the corporation and when their individual economic interests are not coincidental with or necessarily those of the corporation; in any event, prospective monetary loss as a result of an injunction is insufficient to suspend an injunction. A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8. Lutali v. Foster, 24 A.S.R.2d 81.

Regarding a motion to stay pending appeal, the moving party bears the burden of showing cause as to why an injunction should be stayed and must show that he is likely to prevail on the appeal's merits. A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8. Lutali v. Foster, 24 A.S.R.2d 81.

The general principle underlying stays of injunctive relief is that the status quo should be preserved pending appeal. Alamoana & Yu-Tong Co. v. American Samoa Gov't, 4 A.S.R.3d 3 (App. Div. 2000).

Although normal procedure was to stay proceedings pending administrative decision, where plaintiff modified request for injunctive relief, seeking instead the removal of a constructed sidewalk, such modification required full consideration of the property rights of the parties for both preliminary and permanent injunction purposes and rendered the case ripe for trial. Court properly considered case at that point, and would have done the parties a disservice had it delayed further. Gi v. American Samoa Gov't, 5 A.S.R.3d 259 (Land & Titles Div. 2001).

§ 9 Equitable Remedies

§ 9(1)—General Provisions

Court of equity will not set aside previous decision where parties thereto did not act forthrightly to have decision changed. Tiumalu v. Mailo, 1 A.S.R. 434.

Principles of equity are part of English common law and therefore part of law of American Samoa. Mauga Family v. Mauga, 1 A.S.R. 587.

Courts of equity may vacate a judgment obtained by mistake, fraud or false testimony and grant a new trial. Jewett v. McMoor, 1 A.S.R. 611.

Where a corporation with outstanding debts and claims against it dissolves and reincorporates, equity will hold all assets traceable to the original corporation liable to discharge the debts and claims. Kneubuhl Maritime Services Corp. v. Adams, 8 A.S.R.2d 20.

For the purpose of determining whether a party that is a business entity has clean hands and may have the benefit of equitable remedies, the entity is chargeable with the acts and intentions of the agents who conducted the transaction on which it bases its claim. Hardy v. Anderson, 9 A.S.R.2d 79.

Where the trial court properly assessed that both parties breached their contract, its decision in equity requiring the parties to share expenses will be affirmed. EW Truck and Equipment Co. v. Coulter, 20 A.S.R.2d 88.

When an adverse party would not be prejudiced, an independent action for equitable relief from judgment may be treated as a motion for relief from final judgment, and vice-versa. Fed. R. Civ. P. 60(b); T.C.R.C.P. 60(b). Rocha v. Rocha, 24 A.S.R.2d 55.

The elements of an independent action for equitable relief from judgment require (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of defendant; and (5) the absence of any adequate remedy at law. Rocha v. Rocha, 24 A.S.R.2d 55.

Because the fraud which is the basis of an independent action for equitable relief from judgment must be "extrinsic," the fraud must have prevented the raising of an argument or the assertion of a claim or defense at trial, or deprived a party of his right to a "day in court"; as such, perjury and false testimony are inadequate grounds for relief. Rocha v. Rocha, 24 A.S.R.2d 55.

A court may dispose of an entire controversy by granting both equitable relief and damages, in order to avoid a multiplicity of lawsuits. Thompson v. Toluao, 24 A.S.R.2d 127.

Conduct which has been induced by trickery cannot later be used as a basis for estoppel. Jennings v. Thompson, 25 A.S.R.2d 77.

Liability under a quasi-contract theory is implied-in-law by the equitable principle against unjust enrichment. Farapo v. Schuster, 26 A.S.R.2d 112.

Restitutionary claims under the quasi-contract theory do not apply to family situations. Farapo v. Schuster, 26 A.S.R.2d 112.

A court in equity will not be bound by an unyielding formula, but must shape its relief to match the nature of the transaction, considering all of the circumstances bearing on the matter. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

The High Court of American Samoa is guided by the tenets and principles of equity in all matters within the court's jurisdiction. The concept of equity is founded on the basic precepts of "common honesty, clear fairness and good conscience." G.H.C. Reid & Co. v. K.M.S.T., 1 A.S.R.3d 82 (Trial Div. 1997).

Fraud shall not prevail, substance shall not give way to form, and technical considerations will not prevent substantial justice from being done. Where a transaction is "festooned" with the "badges of fraud," the court may set aside the fraudulent conveyance, and permit the plaintiff creditor to satisfy partially its judgment from the asset. G.H.C. Reid & Co. v. K.M.S.T., 1 A.S.R.3d 82 (Trial Div. 1997).

As a matter of equity, the court will not remain idle and implicitly condone a fraudulent attempt to hide assets from creditors. To hold otherwise would encourage a proliferation of asset transfers from debtors to friends and family members, and seriously undermine the stability of the local economy. G.H.C. Reid & Co. v. K.M.S.T., 1 A.S.R.3d 82 (Trial Div. 1997).

Where the law is inadequate, the court may utilize its equitable powers to contrive new remedies. G.H.C. Reid & Co. v. K.M.S.T., 1 A.S.R.3d 82 (Trial Div. 1997).

§ 9(2) ¾Estoppel, Unclean Hands

Equity requires that party bringing action has acted conscientiously and fairly. Mauga Family v. Mauga, 1 A.S.R. 587.

Where lessees’ attorney states to lessor that signature of co-owner is not necessary to contract, lessor is estopped from asserting lease is invalid because of lack of signature. Steffany v. Scanlan, 3 A.S.R. 456.

Where lessee in prior judicial proceeding maintained that lease was valid contract, he is estopped from maintaining in subsequent proceeding that lease is not valid contract. Scanlan v. Steffany, 3 A.S.R. 583.

Where lessee’s attorney states to lessor that signature of co-owner is not necessary to validity of lease, he is estopped from denying validity of lease because such signature was not obtained. Scanlan v. Steffany, 3 A.S.R. 583.

Doctrine of estoppel depends on four conditions: (1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the facts; and (4) he must rely on the former's conduct to his injury. Atuatasi v. American Samoa Government, 9 A.S.R.2d 67.

When it acts in a sovereign capacity, the government is generally not subject to estoppel. Atuatasi v. American Samoa Government, 9 A.S.R.2d 67.

Estoppel may be applied against the government if, in addition to other factors necessary to give rise to an estoppel, the government's wrongful conduct threatens to work a serious injustice, and the public interest would not be unduly damaged by the estoppel. Atuatasi v. American Samoa Government, 9 A.S.R.2d 67.

Territorial government was not estopped from rearresting a prisoner where: (1) the prisoner, although ineligible for parole, had been paroled because of a clerical error; (2) prisoner had been released for only twenty-eight days before his rearrest, so that he had not been reintegrated into the community and could show no substantial injury resulting from his release and rearrest; (3) since there had been no significant reintegration into the community, no serious injustice was worked by the rearrest; and (4) since the prisoner had been recently convicted of a violent crime, it was not clear that the public interest would not be unduly damaged by the estoppel. Atuatasi v. American Samoa Government, 9 A.S.R.2d 67.

Statute providing that court "may" annul illegally contracted marriages follows the general rule that annulment is an equitable remedy which may be barred by equitable defenses including estoppel, laches, or the doctrine of unclean hands. A.S.C.A. § 42.0203. Pritchard v. Purcell, 11 A.S.R.2d 16.

Equitable doctrines of clean hands and estoppel will not bar annulment of bigamous marriage where party seeking annulment is apparently motivated by remorse for his offense against society's moral and legal code, but these doctrines do bar an action by a party who has merely tired of his bargain and seeks annulment as a substitute for divorce. Watson v. Watson, 11 A.S.R.2d 30.

Equitable bars to causes of action based on the plaintiff's own wrong are not designed only for the litigants, but also protect the courts from the appearance and substance of helping to make crime pay. Watson v. Watson, 11 A.S.R.2d 30.

Equitable considerations in favor of granting annulment of bigamously contracted marriage despite estoppel and clean hands doctrine, including the argument that by denying annulment the court would countenance the continued perpetration of crime and that annulment might help to clarify the rights of innocent third parties, do not appear in a case where the prior marriage has been dissolved. Watson v. Watson, 11 A.S.R.2d 30.

Application of equitable principles of estoppel and clean hands to action for annulment of formerly bigamous marriage was bolstered by territorial statutes providing that court "may" annul any marriage that was illegally contracted, and setting forth strict rules against judgment by default, collusive suits, and the granting of judgment in favor of a guilty party. A.S.C.A. §§ 42.0203, 42.0204-11. Watson v. Watson, 11 A.S.R.2d 30.

Neither law nor equity should aid a party who founds his cause of action on his own immoral or illegal act. Watson v. Watson, 11 A.S.R.2d 30.

Defense of estoppel requires that the party who raises the defense establish his own good faith or "clean hands." Huff v. Huff, 15 A.S.R.2d 83.

Court denied a motion to dismiss by defendants/trustees which argued that plaintiff was estopped from alleging breach of such trust by a trust provision requiring that disputes regarding interpretation be referred to the probate court for instructions, since such a piecemeal and novel approach to defining and sorting out the issues between litigants was meritless and unfounded. Beaver v. Cravens, 17 A.S.R.2d 6.

Equitable estoppel is appropriate when (1) the party to be estopped knows the facts; (2) he intends that his conduct shall be acted on or so acts that the party asserting estoppel has a right to believe it is so intended; (3) the party asserting estoppel is ignorant of the facts; and (4) the party asserting estoppel relies on the conduct to his injury. Jennings v. Jennings, 21 A.S.R.2d 40.

Although the Attorney General's decision on an administrative claim is final and conclusively binding on all ASG officers, except when procured by fraud, his action cannot result in a waiver or estoppel preventing ASG from raising a jurisdictional issue at any stage of future litigation. A.S.C.A. § 43.1206. Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55.

Once a stipulation is made in the course of judicial proceedings, estoppel prevents its withdrawal absent a showing of fraud or mistake. Stipulations entered into freely and fairly are not to be set aside except to prevent manifest injustice. T.C.R.C.P. 16. Mobile Marine Ltd. v. Ninna Marianne, 28 A.S.R.2d 88.

A void contract is a legal nullity, and cannot serve as the basis for equitable estoppel; while a voidable contract 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. TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

§ 9(3) ¾Laches

Where plaintiffs had waited three years to file suit after territorial Attorney General had announced that a territorial statute was unconstitutional, and government had granted a number of leases during the intervening years that did not conform to requirements of the statute, action for declaratory judgment that the statute was unconstitutional would be entertained but demand for the invalidation of leases signed prior to the date suit was filed was barred by laches. Tuika Tuika v. Governor of American Samoa, 4 A.S.R.2d 85.

Where there is no evidence of circumstances surrounding delay in filing suit, except for plaintiff's assertion that he did not know defendants were occupying his land until shortly before suit was filed, court could not grant summary judgment for defendants on the ground of laches. Roberts v. Sesepasara, 8 A.S.R.2d 43.

Although laches is technically an equitable defense and action for mandamus a proceeding at law, laches is available as a defense to a petition for writ of mandamus. Siofele v. Shimasaki, 9 A.S.R.2d 3.

Elements of laches are unreasonable delay by one party in asserting his rights and resulting undue prejudice to the other party. Siofele v. Shimasaki, 9 A.S.R.2d 3.

One month delay in seeking judicial review of denial of the right to run for elective office was unreasonable where (1) the election was to be held two weeks after petitioners first sought judicial relief and (2) one of the petitioners, although absent from the territory, could have secured counsel or instructed his co-petitioner to assert their rights. Siofele v. Shimasaki, 9 A.S.R.2d 3.

Where land claimant waited fifty-two years, before attempting to evict those upon the land, and innocent third parties bought land, built homes, and raised families on the land, the doctrine of laches would apply to limit any recovery, and good faith improvers would have a right to compensation upon eviction. Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

Action to recover littoral rights taken by the government ninety years ago is barred by the doctrine of laches and by a statute which bars causes of action to recover real property if not brought within twenty years after they accrue. A.S.C.A. § 43.0120(6). Vaivao v. Craddick, 14 A.S.R.2d 108.

Doctrine of laches provides that where plaintiff's cause of action can be perfected by an act he must perform and he is not restrained or disabled from performing it, he cannot indefinitely suspend the statute of limitations by delaying such performance. Mataipule v. Tifaimoana Partnership, Ltd. (Mem), 14 A.S.R.2d 100.

The classic elements of laches are an unreasonable delay in a party's assertion of his rights and undue prejudice to the other party. Jennings v. Jennings, 21 A.S.R.2d 40.

An action challenging ordinances condemning land for the coastal road was barred by laches when the plaintiff did not file suit until 90 years after the ordinances were enacted. A.S.C.A. § 37.2050. Anderson v. Vaivao, 21 A.S.R.2d 95.

Laches will generally be found where there is an unexcused or unreasonable delay by one party in asserting his or her rights, and a concomitant prejudice to the other party. Jennings v. Thompson, 25 A.S.R.2d 77.

As an equitable defense, laches is committed to the sound discretion of the trial court, and is reviewed for an abuse of that discretion. An appellate court will not reverse unless it has a definite and firm conviction that the court below committed a clear error of judgment upon a weighing of relevant factors, and should not substitute its own judgment for that of the lower court. Jennings v. Thompson, 25 A.S.R.2d 77.

When the limit within which a plaintiff might bring an action against a defendant is fixed by a statute of limitations, the doctrine of laches is inapplicable. Passi v. Amerika Samoa Bank, 28 A.S.R.2d 130.

If the delay in perfecting a right to sue is out of the plaintiff's control, the cause of action will accrue when the right is perfected, but if the plaintiff controls the condition, plaintiff must perfect the right within a reasonable time, which is measured using the limitation period as an analogy in the absence of circumstances justifying a longer delay. Bradcock v. American Samoa Gov't, 28 A.S.R.2d 182.

When deciding whether the plaintiff perfected the right to sue within a reasonable time, the court may consider not only when the administrative claim was filed, but when it could have been filed. The express purpose of this rule is to prevent the frustration of legislative intent by allowing a plaintiff to unilaterally extend the limitation period. Bradcock v. American Samoa Gov't, 28 A.S.R.2d 182.

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. Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

The decision on whether to apply laches depends upon the particular circumstances of the case at question. Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Under laches analysis, Court determined that plaintiffs’ commencing of action to enforce judgment less than 14 months after judgment was entered was neither unreasonable nor an inexcusable length of time. Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Where plaintiff possessed actual knowledge of land claim, failed to take any steps to counter said claim during pendency of earlier case and in fact did not act until 13 years after Court had ordered registration of land in other party’s name, the doctrine of laches applied. Amituanai v. Sataoa, 6 A.S.R.3d 341 (Land & Titles Div. 2002).

Laches is the unreasonable delay in one party’s assertion of its rights resulting in another party’s undue prejudice. Amituanai v. Sataoa, 6 A.S.R.3d 341 (Land & Titles Div. 2002).

Claimant to land ownership is charged with actual notice upon receiving information that would put person of ordinary prudence to inquiry that would lead to knowledge of adverse title. Amituanai v. Sataoa, 6 A.S.R.3d 341 (Land & Titles Div. 2002).

Laches is an equitable doctrine that bars an action where there has been an unreasonable delay in bringing the suit, and the other party has been prejudiced as a result of the delay. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

§ 9(4) —Tolling

Court will give effect to purpose of statute of frauds in American Samoa and look with disfavor upon uncorroborated oral testimony of events which supposedly took place years prior to testimony. Tupua v. Aumavae, 1 A.S.R. 231.

English Statute of Frauds was not brought to American Samoa as a part of common law. Steffany v. Scanlan, 3 A.S.R. 456.

There is no Statute of Frauds in American Samoa since it is not part of common law of England which was brought to United States and is of force only when specifically enacted by legislature. Scanlan v. Steffany, 3 A.S.R. 583.

Tolling is frequently deemed consistent with the purposes of statutes of limitation, particularly when the plaintiff was unable to bring suit due to circumstances that were in the primary control of the defendant. Randall v. American Samoa Gov't, 19 A.S.R.2d 111.

Unlike its quite differently phrased and structured counterpart in the Federal Tort Claims Act, the statute of limitations applicable to American Samoa's Government Tort Liability Act has been held to be subject to tolling during the minority of an injured person. A.S.C.A. § 43.1204. Randall v. American Samoa Gov't, 19 A.S.R.2d 111.

The usual reason given for construing statutes of limitation for suits against the United States Government as jurisdictional (i.e., not subject to waiver and/or tolling)--that the limitations are deemed an integral part of the initial waiver of sovereign immunity, which should not be extended by courts beyond the intent of Congress--does not apply to ASG. Randall v. American Samoa Gov't, 19 A.S.R.2d 111.

Though mislabeled with an appellate-division rather than a civil-division number and not specifically requesting statutorily-provided injunctive relief, a petition for judicial review of a Workmen's Compensation Commission order was sufficient to toll the statute of limitations and so avoid dismissal. Felise v. Workmen's Compensation Commissioner, 24 A.S.R.2d 95.

T.C.R.C.P. 6(a) is not intended to modify or change an existing statute of limitations, and it cannot, of its own force, extend a substantive limitation period prescribed by statute, nor does it attempt to change or modify a jurisdictional statute, such as a statute of limitations. T.C.R.C.P. 6. Patau v. Hildre, 27 A.S.R.2d 83.

When the limit within which a plaintiff might bring an action against a defendant is fixed by a statute of limitations, the doctrine of laches is inapplicable. Passi v. Amerika Samoa Bank, 28 A.S.R.2d 130.

§ 9(5) ¾Subrogation

SEE TORTS § 17 – SUBROGATION

A person who is legally obliged to pay a debt of another person and who actually does pay that debt acquires the legal rights of the creditor under the equitable principle of subrogation. American International Underwriters v. American Samoa Government, 3 A.S.R.2d 115.

ASG provides free medical attention to American Samoans and qualified residents, but it can, under the equitable principle of subrogation, look to the tortfeasor for reimbursement. A.S.C.A. § 13.0601. Puailoa v. Barber, 19 A.S.R.2d 48.

The liability of an uninsured vehicle's owner is secondary to that of a principal tortfeasor who was driving with the owner's permission; while a plaintiff may collect from either defendant, the vehicle's owner has a right of indemnity and subrogation against the driver. Vaiti v. So'oso'o, 19 A.S.R.2d 71.

American Samoa's Workmen's Compensation Act does not explicitly provide for a right of subrogation where an employee receives compensation without a formal award and then recovers from a third party; however, an employer has an equitable right of subrogation and is entitled to be reimbursed from an employee's net recovery, whether by judgment or settlement, from a third party. A.S.C.A. §§ 32.0501 et seq. Vaeao v. Samoa Air, 20 A.S.R.2d 37.

§ 9(6) ¾Constructive Trusts

To allow lienholder to obtain higher priority by foreclosing in jurisdiction that does not have a federal district court, where Congress apparently intended to create uniform set of priorities and parties contracted accordingly, would give rise to unjust enrichment. Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 59.

Where the registered owners of land acquired it from plaintiff by fraud, a constructive trust in favor of plaintiff was properly imposed against both the land and proceeds from its sale. Fania v. Sipili, 14 A.S.R.2d 70.

When real property was obtained by constructive fraud or undue influence, violating a fiduciary relationship, a constructive trust provides the remedy to transfer the property to the person entitled to it. Jennings v. Jennings, 21 A.S.R.2d 40.

A constructive trust is a remedy used by a court of equity to compel a person who has acquired property to which he is not justly entitled to transfer it to the person entitled thereto. The wrongful act giving rise to a constructive trust need not amount to fraud or intentional misrepresentation. All that must be shown is that the acquisition of the property was wrongful and that the keeping of the property by the defendant would constitute unjust enrichment. Jennings v. Thompson, 25 A.S.R.2d 77.

A constructive trust may arise from violation of a fiduciary duty, such as where the property is obtained by constructive fraud or undue influence. Where there is a preexisting fiduciary relationship between the parties, a person whose property has been taken is entitled to restoration of the property itself. Jennings v. Thompson, 25 A.S.R.2d 77.

A constructive trust is one created by operation of law and imposed by a court in equity to prevent a fraud. Facts giving rise to a constructive trust in themselves give rise to an action to enforce such trust. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

The power of a court of equity to appoint a trustee in a proper case is part and parcel of its general jurisdiction and control over trust estates. The court can exercise this power very broadly. The court may also make necessary orders to protect the property of such trust. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

Generally, while it is a factor to consider, the parties need not have entered any agreement as a prerequisite to the imposition of a constructive trust as an equitable remedy. Stephens v. Stephens, 30 A.S.R.2d 55.

While generally land titles may not rest on parol evidence, constructive trusts are excepted from the requisite of written evidence under the statute of frauds. Stephens v. Stephens, 30 A.S.R.2d 55.

In considering the imposition of a contructive trust, what is important in a confidential family situation is the breach of reposed trust. In order to for a constructive trust to be justified, the legal titleholder of property must commit some wrong rendering his or her acquisition or retention of the property unconscionable. Stephens v. Stephens, 30 A.S.R.2d 55.

A confidential or fiduciary relationship will not of itself trigger a constructive trust, but is a notable prelude to imposition of this remedy. Stephens v. Stephens, 30 A.S.R.2d 55.

The very existence of close family connections creates, or at least most often creates, a confidential or fiduciary relationship for purposes of imposing a constructive trust. Stephens v. Stephens, 30 A.S.R.2d 55.

§ 10 Judgments

§ 10(1) ¾Enforcement of Judgments

SEE AMERICAN SAMOA GOVERNMENT § 5(6) – SUPERVISION OF JUDGMENTS AND SETTLEMENTS

Statement by prior court on family’s right in land which was not essential to judgment was obiter dictum and is not binding on subsequent courts. Mulu v. Taliutafa, 3 A.S.R. 82.

Where judgment is ambiguous, interpretation will be adopted which is more reasonable, effective and conclusive and which is characterized by justice and fairness. Yuhashi v. Lopeti, 3 A.S.R. 322.

A proffered "settlement" of an already litigated claim, purporting to "adjust" boundaries established by the court, has no effect when it (1) was never judicially approved; (2) resulted from negotiations between a licensed legal practitioner and an adverse party represented by counsel in the absence of the latter party's counsel; (3) clearly results in disadvantage to the latter party; (4) was renounced by the latter party soon thereafter; and (5) bears a close resemblance to an earlier "settlement" asserted in court by the legal practitioner, the existence of which the adverse party denied immediately after having consulted his attorney. Te'o v. Sotoa, 5 A.S.R.2d 90.

Territorial statute prohibiting sale of real property of a Samoan to satisfy a judgment does not prohibit judgment creditor from recovering the cash proceeds resulting from a voluntary sale of property by the judgment debtor. A.S.C.A. § 43.1528(a). Te'o v. Continental Insurance Co., 6 A.S.R.2d 135.

Policy underlying statutory prohibition on sale of Samoan real property to satisfy judgment, unlike policy underlying statutory homestead exemptions in the United States, is to discourage alienation of land; a Samoan who has voluntarily alienated his land and converted it into cash has placed himself not only outside the language of the statutory protection but also beyond its rationale. A.S.C.A. § 43.1528(a). Te'o v. Continental Insurance Co., 6 A.S.R.2d 135.

Where land of which judgment debtor was the equitable owner had been fraudulently conveyed to judgment debtor's minor children, then caused by debtor and her husband to be sold by the children to a third party, proceeds from sale to third party were subject to seizure by judgment creditor. Te'o v. Continental Insurance Co., 6 A.S.R.2d 135.

Court would exercise its equitable discretion to allow husband of judgment debtor, who had made payments on land contract and paid for a house on the land, to retain in preference to the judgment creditor half of the proceeds from sale of land which had been held in the name of the judgment debtor. Te'o v. Continental Insurance Co., 6 A.S.R.2d 135.

When a judgment creditor moves to seize property of the judgment debtor and the Court has determined that the property does belong to the judgment debtor, the property should ordinarily be held by the Court rather than by the creditor, the debtor, or the person previously in possession pending judicial determination of the creditor's right to seize it. In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Court did not deprive attorney of life, liberty, or property without due process of law, either by injury to his reputation or otherwise, where (1) attorney had represented judgment debtor; (2) attorney also represented other members of judgment debtor's family; (3) after judgment, the judgment debtor and her family had agreed to changes in the record ownership of property formerly recorded as property of the judgment debtor, had arranged for the sale of the property, and had removed themselves from the territorial jurisdiction of the court; (4) attorney had in his possession the proceeds of the sale, which judgment creditor alleged to be the property of the debtor but which debtor and other family members claimed to be the property of other family members; (5) court had held the funds to be the property of the judgment debtor and subject to seizure by the judgment creditor; and (6) court ordered the funds to be deposited in the registry of the court pending further proceedings. In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Proposed settlement of previously litigated land claim which purports to adjust the boundaries set by the court's judgment should ordinarily be submitted to court for its approval. Estate of Sotoa v. Te`o, 8 A.S.R.2d 165.

Court would not sign consent judgment where one party was represented by counsel, other side was unrepresented, consent judgment required unrepresented party to pay attorney fee that would not have been awarded if the case had been litigated, and court could not be sure that the principal amount had been correctly calculated. Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177.

Signature by person unrepresented by counsel on document designated as settlement or consent judgment does not automatically entitle the document to judicial enforcement without prior judicial scrutiny. Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177.

Risk of abuse inherent in consent judgments ordinarily outweighs their usefulness as a means of saving time, at least in a jurisdiction where trial court routinely resolves uncontested matters by means of brief evidentiary hearings a few days after suit is filed. Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177.

Where court order required disputed funds to be kept in bank pending outcome of the litigation, but an officer of one party to the litigation secretly withdrew and spent the funds in violation of the order, an opposing party which agreed to a settlement under which it would receive "the funds in the bank" did not thereby waive its right to receive the funds which had been wrongfully withdrawn, since it was entitled to rely on compliance by other parties with the court order. Bank of Hawaii v. Congregational Christian Church, 9 A.S.R.2d 100.

Court order discharging plaintiff in interpleader, a bank, from further liability in connection with the interpleaded funds did not discharge the bank from continuing compliance with previous order prohibiting the disbursal of other funds pending the outcome of the litigation. Bank of Hawaii v. Congregational Christian Church, 9 A.S.R.2d 100.

Where one party to litigation, in violation of a court order, had released money to another party which had then spent it, both parties were jointly and severally liable to a third party who was held entitled to the money; as between the two parties who violated the order, the party who received and spent the money would be required to indemnify the party who merely released it. Bank of Hawaii v. Congregational Christian Church, 9 A.S.R.2d 100.

Court order permitting release of a prisoner should not be construed to require the release of the prisoner when such release would be contrary to the best judgment of the commissioner of public safety and when defendant's counsel had not informed the court that release had been denied by the commissioner. American Samoa Government v. Felise (Mem.), 11 A.S.R.2d 132.

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. Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Under A.S.C.A. § 43.0120(5), actions founded upon a judgment must be brought within 10 years. Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

§ 10(2) ¾Validity of Judgments

Trial court judgment becomes final on parties who do not appeal or who dismiss their appeals, and they cannot appear in trial court proceedings on remand after successful appeal by other parties. Security Pacific National Bank v. M/V Conquest, 4 A.S.R.2d 59.

A judgment that has become final cannot be disturbed in the absence of new evidence, fraud, surprise, or similar circumstances. T.C.R.C.P. Rule 60. Willis v. Willis, 4 A.S.R.2d 144.

A strong presumption of validity attaches to an order of the High Court signed by a Justice thereof. Satele v. Uiagalelei, 6 A.S.R.2d 143.

Territorial government is bound by court orders in proceedings to which it is a party and should not issue legal opinions that counsel disobedience to such orders. American Samoa Government v. Satele, 7 A.S.R.2d 153.

Signature of judge on a court order certifies that the judge has in fact exercised his judgment, that the premises of the order are true, that the order itself is lawful, and that it is appropriate under all the circumstances that the order be given the force of law. Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177.

Judgment affirming a decision of land commission, in which one party had made a claim to ownership of land and another party had filed an objection, and in which the commission's decision purported only to reject the claim advanced by the original claimant, did not convey to the objector a title good against the world. Willis v. Fai`ivae, 10 A.S.R.2d 121.

Court is reluctant to issue order affecting the rights of absent parties without affording them prior notice and opportunity to be heard. S.W. California Production Credit Association v. The Vessel Conquistador (Mem.), 11 A.S.R.2d 7.

It is not clear that court has the power to alter the rank or priority of liens by approving an ex parte stipulation to which the lienholders were not parties. S.W. California Production Credit Association v. The Vessel Conquistador (Mem.), 11 A.S.R.2d 7.

Not being vested with prosecutorial discretion, courts can approve a consent-decree provision limiting the defendants' liability to ASG for past violations, but it is inappropriate for a court to enter an order prohibiting the prosecution of future violations of law. American Samoa Government v. StarKist Samoa, Inc., 16 A.S.R.2d 27.

That judgment debtor did not receive certain funds when he had expected to receive them, that some of the expected receipts were subjected to a tax lien and to a pre-judgment garnishment in another case, and that the judgment debtor applied the remainder to his living and business expenses in addition to his judgment debt, did not excuse his noncompliance with a court order to notify the court in advance should it appear that he would be unable to make a scheduled payment on the judgment debt. Association of Apartment Owners v. Hudson (Mem.), 12 A.S.R.2d 81.

Rule that a judgment binds parties "and their privies" is merely a corollary of the proposition that a buyer or other assignee receives only the title his assignor had the right to convey. Puailoa v. Estate of Lagafuaina (Mem.), 12 A.S.R.2d 84.

A rule that anyone who buys land is bound by the results of lawsuits against anyone else who should ever buy land from the same seller would carry the privity rule beyond the limits of its logic; in practice it would encourage litigants to bring suit not against the parties whose claims they really wish to contest, but against the least effective and attractive available members of some class to which the real adverse parties happen also to belong. Puailoa v. Estate of Lagafuaina (Mem.), 12 A.S.R.2d 84.

Proposition that a litigant may be bound by the result of a prior lawsuit to which neither he nor anyone on whom his claim depends was a party would carve a gaping hole in the rule that no one can be denied property without having had a day in court. Puailoa v. Estate of Lagafuaina (Mem.), 12 A.S.R.2d 84.

Where wrongful death complaint had omitted the name of the decedent's mother, but the pleadings as a whole could be construed to ask for recovery on behalf of both mother and father, both of whom had an equal right to recover for their son's death, judgment awarding damages to the father alone would be construed as being in favor of mother and father jointly. Te`o v. Continental Insurance Co. (Mem.), 13 A.S.R.2d 42.

Parties who did not object to offer for registration of land in accordance with statutory procedure were bound by the result in the ensuing registration proceedings, although they were not parties to the proceeding, because registration proceedings have in rem effect. A.S.C.A. §§ 37.0101 et seq. Tufono v. Vaeao, 13 A.S.R.2d 47.

Funds that are in the judgment debtor's possession, freely available for his personal expenses and actually used by him for such expenses, are similarly available for garnishment and the satisfaction of his debts. United Airlines v. Pritchard, 15 A.S.R.2d 56.

A judgment creditor's rights do not depend upon whether the debtor has obtained money by earning it or because it was lent or given to him. United Airlines v. Pritchard, 15 A.S.R.2d 56.

Garnishment may not be evaded by placing in the debtor's hands possession and control of a fund freely available to him but not to his creditors. United Airlines v. Pritchard, 15 A.S.R.2d 56.

Claims for costs incurred in securing vessel while it was in custodia legis prior to judicial sale are recoverable from the proceeds of the sale and have priority over the claims of the litigants. 46 U.S.C. § 31326. United Airlines Employee Credit Union v. M/V Sans End, 15 A.S.R.2d 95.

Creditor who already obtained a judgment and a writ of execution and levied upon the property of judgment creditor prior to the notice of ASG's tax lien, prevails against the ASG as a judgment lien creditor with respect to such property. 26 U.S.C. § 6323(a); A.S.C.A. § 11.0401 et seq. Shantilal Brothers, Ltd. v. KMST Wholesale, 15 A.S.R.2d 115.

Concerning an unwritten contract, which affords no contractual or legal basis for variation from the rule that each party pays his own attorney fees, plaintiff was entitled to recover only the principal amount plus six per cent pre-judgment interest. Samoa Products, Inc. v. A`asa, 17 A.S.R.2d 66.

Former counsel's failure to communicate a judgment to a client, if true, might or might not give rise to a cause of action for malpractice, but this does not give the court jurisdiction it does not have. Taulaga v. Patea, 17 A.S.R.2d 206.

A judgment of the Trial Division remains in the jurisdiction of the Trial Division, and attempts to enforce the judgment should be made at the trial level, not in the Appellate Division. Paisano's Corp. v. Blue Pacific Management Corp., 25 A.S.R.2d 75.

The general rule is to award prejudgment interest, although this award always lies soundly within the court's discretion. However, it is also true that when certain "peculiar" circumstances exist, the discretion to deny prejudgment interest is sustained. These peculiar circumstances have fallen into three categories: (1) "plaintiff's delay in bringing suit," (2) "the existence of a genuine dispute regarding ultimate liability or the complexity of the factual and legal issues to be resolved," and (3) "judgment in an amount substantially less than that claimed. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28.

The court has inherent equitable power to give priority to costs arising out of the administration of property within its jurisdiction. Korea Deep Sea Fisheries Assn. v. M/V Corona #1, 27 A.S.R.2d 53.

Where it appears that a judgment is void, and a party has moved the court to aid in the enforcement of that judgment, the court must examine the validity of the judgment, whether the examination is on subject matter grounds or other grounds, including the lack of capacity to sue. Interocean Ships, Inc. v. Samoa Gases, 30 A.S.R.2d 170.

A judgment that is void may be collaterally attacked. Interocean Ships, Inc. v. Samoa Gases, 30 A.S.R.2d 170.

A judgment for a corporation that has lost the capacity to sue, as when it no longer exists as an entity or has merged into another corporation, is void. Interocean Ships, Inc. v. Samoa Gases, 30 A.S.R.2d 170.

The court may void a judgment even after the parties have subsequently entered into a settlement, even though the decision, as a practical matter, invalidates the settlement. Interocean Ships, Inc. v. Samoa Gases, 30 A.S.R.2d 170.

When a judgment has been set aside, neither that judgment nor any other former judgment in the case ever again becomes the judgment of the court unless the trial court expressly reinstates it and, in effect, renders a new judgment on the later date. Interocean Ships, Inc. v. Samoa Gases, 3 A.S.R.3d 190 (Trial Div. 1999).

Where filing date was day prior to date purportedly signed by judges, Court determined that latter date was inadvertent, typographical error and inconsequential to enforceability of order. Alamoana & Yu-Tong Co. v. American Samoa Gov't, 4 A.S.R.3d 3 (App. Div. 2000).

Where date signed by judges differs from date of filing, the date of filing controls. Alamoana & Yu-Tong Co. v. American Samoa Gov't, 4 A.S.R.3d 3 (App. Div. 2000).

§ 10(3) ¾Orders in Aid of Judgment

Territorial statute providing that judgment debtor may apply for an order setting payments on the judgment in accordance with his ability to pay is an important protection for debtors in the absence of a bankruptcy statute, and court should use the full reach of its equitable powers to effect the statutory protection. A.S.C.A. § 43.1501. R.S.T.T.A.N. Hisatake, Inc., v. Dullabhbhai K. Patel & Co., Ltd., 3 A.S.R.2d 99.

Territorial statute providing that court should set payments on a judgment in accordance with debtor's ability to pay did not defeat creditor's right to foreclose a chattel mortgage. A.S.C.A. §§ 37.1002, 37.1103, 43.1501. R.S.T.T.A.N. Hisatake, Inc., v. Dullabhbhai K. Patel & Co., Ltd., 3 A.S.R.2d 99.

Even without a showing of "clean hands," the Orders in Aid of Judgment statute permits relief from having to pay the entire amount of a judgment at once. A.S.C.A. § 43.1501 et seq. Huff v. Huff, 15 A.S.R.2d 83.

When deciding the propriety of an order in aid of judgments, courts are guided by considerations of justice and equity. Carpenters Fiji, Ltd. v. Pen, 29 A.S.R.2d 58.

In the absence of a bankruptcy statute, the law of American Samoa favors orders in aid of judgment which permit the debtor to retain a reasonable amount of income producing property to provide for reasonable living requirements and family obligations. Carpenters Fiji, Ltd. v. Pen, 29 A.S.R.2d 58.

T.C.R.C.P. 18(b) authorizes the concurrent joinder of two claims. However, Rule 18(b) is not applicable to an action, which seeks an order in aid of judgment. Korea Deep Sea Fisheries Association v. Ho Pyo Hong, 31 A.S.R.2d 162.

§ 10(4) ¾Declaratory Judgments

Court will issue declaratory judgment in appropriate case pursuant to authorizing statute, and will liberally construe statute to assume jurisdiction on merits if possible. Title 11, A.S.C. § 6671 (1973). In re High Chief Title Mauga, 4 A.S.R. 132.

Court will issue declaratory judgment to resolve matai title dispute pursuant to constitutional duty to protect Samoan culture and customs. Rev. Con. of Am. Samoa, Article I, Section 3. In re High Chief Title Mauga, 4 A.S.R. 132.

Court will issue declaratory judgment if facts alleged show substantial controversy between adverse parties, sufficiently immediate and pressing that if jurisdiction is refused, other litigation will likely ensue between same parties. In re High Chief Title Mauga, 4 A.S.R. 132.

Repeated litigation and dissention over matai title status is sufficient to establish case or controversy amenable to declaratory judgment. In re High Chief Title Mauga, 4 A.S.R. 132.

In absence of authorizing statute, court cannot decree declaratory judgment, and Samoa has no statute authorizing declaratory judgments. Bottling Corporation of Samoa v. Lee, 4 A.S.R. 499.

Court will assume jurisdiction and declare meaning of statute, if parties dispute same, although pleadings do not seek declaratory relief. R.C.A.S. § 3.1801. Meredith v. Mola, 4 A.S.R. 773.

Court would not exercise its power to render a declaratory judgment where the party seeking the judgment had not exhausted his administrative remedies. Election Office v. Tuika, 9 A.S.R.2d 1.

Court would not exercise its power to render a declaratory judgment where the only relief it could grant would require the court to assume a super-visory role over administrative processes. Election Office v. Tuika, 9 A.S.R.2d 1.

Where trustees filed a pleading styled as a petition to a nonexistent "probate division" of the High Court for advice and instructions, the Court denied a motion to dismiss for failure to state a claim by the surviving settlor of the trust, since the trustees did not merely seek an advisory opinion but stated a claim for declaratory relief. A.S.C.A. § 43.1101 et seq. In re Beaver Family Trust, 17 A.S.R.2d 9.

Once a grantee has received and registered a deed to land, a subsequent deed has no effect, and so an injunction properly enjoined a later purchaser from interfering with the prior grantee's use and enjoyment of the land. Sa v. Vollrath, 21 A.S.R.2d 37.

Even if an actual controversy exists, a court has the discretion to refuse declaratory relief when, under all the circumstances, it is unnecessary or improper at the time it is sought. A.S.C.A. § 43.1102. Sala v. American Samoa Gov't, 21 A.S.R.2d 50.

To bring a declaratory relief action, there must be a justiciable issue based on alleged facts showing, under all the circumstances, that a substantial controversy exists between parties having adverse legal interests of sufficient immediacy and reality to warrant issuance of a declaratory judgment; the test generally applied is the relative certainty that litigation will eventually follow if declaratory relief is not granted. A.S.C.A. § 43.1101. Sala v. American Samoa Gov't, 21 A.S.R.2d 50.

Even if an actual controversy exists, a court has the discretion to refuse declaratory relief when, under all the circumstances, it is unnecessary or improper at the time it is sought. A.S.C.A. § 43.1102. Sala v. American Samoa Gov't, 21 A.S.R.2d 50.

American Samoa's declaratory-judgment statute limits such relief to a person "interested under a deed, will or other written instrument, or under a contract, or who desires a declaration of his rights or duties with respect to another, or in respect to, in, over or upon property." A.S.C.A. § 43.1101. Multitauaopele v. Togafau, 26 A.S.R.2d 52.

The court retains the discretion not to grant declaratory relief if "not necessary or proper." A.S.C.A. § 43.1102. Multitauaopele v. Togafau, 26 A.S.R.2d 52.

The test generally applied in determining whether a case presents a justiciable issue which can serve as a basis for a declaratory judgment suit is whether it is relatively certain that coercive litigation will eventually ensue between the same parties if a declaratory judgment is refused. American Samoa Government v. South Pacific Island Airsystems, Inc., 26 A.S.R.2d 132.

Courts will not grant declaratory judgments until administrative remedies have been exhausted unless such administrative remedies are inadequate. Moetoto v. Tauileva, 28 A.S.R.2d 144.

A declaratory judgment is a judgment that calls for a broad adjudication of rights other than those on which the immediate relief is dependent. A judgment is not declaratory if it declares no more than is necessary to sustain the immediate relief prayed for. Lutu v. Ale, 28 A.S.R.2d 43.

Trial court has discretion to refuse declaratory relief when it is not necessary or proper at the time it is sought. Tauia v. American Samoa Gov’t, 1 A.S.R.3d 64 (Trial Div. 1997).

In most declaratory relief actions, exhaustion of administrative remedies is a prerequisite to judicial review. Tauia v. American Samoa Gov’t, 1 A.S.R.3d 64 (Trial Div. 1997).

Although it would be helpful to have a determination as to whether a tenancy in the entirety issue applies to the territory, under A.S.C.A. § 43.1101 the court must have a true case or controversy before it in order to issue a declaratory judgment. Fiame v. Fiame, 4 A.S.R.3d 95 (Trial Div. 2000).

For there to be a case or controversy amenable to a decision on the merits, it must be relatively certain that coercive litigation will eventually ensue between the same parties if a declaratory judgment is refused. Fiame v. Fiame, 4 A.S.R.3d 95 (Trial Div. 2000).

The High Court will not entertain a claim for declaratory relief which asks the Court to declare that a person is a duly selected and sworn Senator, as the Constitution of American Samoa reserves such matters to the Senate, and such claims are of the type that admit of legislative, rather than judicial, resolution. Fa`amausili v. Am. Samoa Gov’t, 6 A.S.R.3d 259 (Trial Div. 2002).

A court may grant declaratory relief even though it chooses not to issue an injunction or mandamus. A declaratory judgment can then be used as a predicate to further relief, including an injunction. Muavaefa’atasi v. House of Representatives, 7 A.S.R.3d 117 (Trial Div. 2003).

Under A.S.C.A. § 43.1101, a person is entitled to declaratory 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.” Kneubuhl v. Ala’i, 7 A.S.R.3d 272 (Land & Titles Div. 2003).

§ 10(5) ¾Default Judgments

A defendant who has defaulted through failure to answer may nevertheless appear at the hearing of motion for default judgment to contest the amount of damages. T.C.R.C.P. Rule 55(b). Development Bank v. Lava, 5 A.S.R.2d 24.

Failure of co-signor of promissory note to appear in action on the note was "excusable neglect" justifying relief from default judgment where co-signor had always relied on her husband to manage the family's legal affairs, husband had assured her that they would be represented by counsel, and she was unaware of judgment against her until well after its entry. T.C.R.C.P. Rule 60(b). Amerika Samoa Bank v. R. Pritchard Ground Services, Inc., 5 A.S.R.2d 106.

Rule allowing relief from default judgments should be liberally construed; any doubt should be resolved in favor of setting aside the judgment so that the case may be decided on its merits. T.C.R.C.P. Rule 60(b). Amerika Samoa Bank v. R. Pritchard Ground Services, Inc., 5 A.S.R.2d 106.

Court would exercise its discretion to set aside an entry of default where defendant's failure to timely answer was due to administrative oversight, prior to the expiration of time to answer defendant had appeared in opposition to a motion for injunctive relief, plaintiffs' claim involved a substantial sum of money, there was doubt about whether the complaint and summons were properly served, and plaintiffs were not prejudiced by defendant's delay. Pene v. ASPA, 8 A.S.R.2d 78.

Clerk's entry of default may, in court's discretion, be set aside for good cause. T.C.R.C.P. Rule 55(c). Pene v. ASPA, 8 A.S.R.2d 78.

In cases where a party seeks relief from a default judgment, all but the most egregious neglect will usually be excused in deference to the principle that cases should ordinarily be tried on their merits. T.C.R.C.P. Rule 60(b). Satele v. Uiagalelei, 8 A.S.R.2d 97.

Motions for relief from judgment after trial should not be granted as freely as those seeking relief from default judgments, so as to encourage diligent preparation before trial and so as not to relegate the many hours spent at trial by opposing parties and the court to the status of pre-trial discovery. T.C.R.C.P. Rule 60(b). Satele v. Uiagalelei, 8 A.S.R.2d 97.

While the court must be slow in granting default judgments, mindful of its partiality for trial on the merits, it must also balance this concern with finality of judgments and protection of the judicial process. E-C Rental Services v. Pedro, 26 A.S.R.2d 65.

Default judgments are not favored this may be why a court must hold a hearing on damages before entering a judgment on an unliquidated claim even against a defendant who has been totally unresponsive. In general, however, a litigant must make a strong showing to demonstrate that he or she is entitled to relief from a default judgment under T.C.R.C.P. 60(b). E-C Rental Services v. Pedro, 26 A.S.R.2d 65.

Rule 60(b) relief from a default judgment is an extraordinary remedy and is granted only under exceptional circumstances. Additionally, once granted, a default judgment is accorded a high degree of deference, both in the federal courts and in American Samoa, and the granting or denial of such motions is left largely to the discretion of the court. E-C Rental Services v. Pedro, 26 A.S.R.2d 65.

Traditionally, relief from a judgment of default should be granted where the defaulting party acts with reasonable diligence and tenders a meritorious defense. E-C Rental Services v. Pedro, 26 A.S.R.2d 65.

The standards for relief when a judgment of default has been entered are substantially higher than when an entry of judgment stands alone. E-C Rental Services v. Pedro, 26 A.S.R.2d 65.

Before a default judgment may be entered, a court must scrutinize the evidence itself. Scalise v. Gorniak, 26 A.S.R.2d 85.

Evidence of amount of debt, presented in support of motion for default judgment should consist not of a conclusory affidavit by attorney, but of bank ledgers and other direct evidence from which a court can conclude for itself whether the amount has been correctly calculated. Scalise v. Gorniak, 26 A.S.R.2d 85.

Even though defendant failed to serve copy of answer on the plaintiff, court cannot grant a default judgment in favor of plaintiff in the face of an answer effectively denying liability. Vance Intl. v. Penn, 27 A.S.R.2d 79.

A default judgment is not a matter of right. It is a drastic remedy that should only be granted in extreme situations and a trial court has sound discretion to determine whether default judgment is appropriate. Rakshan v. American Samoa Gov't, 28 A.S.R.2d 151.

T.C.R.C.P. 12(a), providing for default judgments, requires that a defendant serve his answer within 20 days after the service of the summons and complaint against him. Ames v. Dept. of Treasury, 4 A.S.R.3d 78 (Trial Div. 2000).

Tardy service alone does not entitle a defendant to a default judgment since under T.C.R.C.P. 55(e) no judgment by default shall be entered against the American Samoa Government unless the claimant establishes his claim or right to relief by evidence to be scrutinized by the court; default judgments are drastic remedies used only in extreme situations, as where the adversary process is halted by an unresponsive party; serving an answer a day late is not such an extreme situation. Ames v. Dept. of Treasury, 4 A.S.R.3d 78 (Trial Div. 2000).

A court should be slow in granting default judgments, mindful of its partiality for trial on the merits, and despite untimely delays on a defendant’s part, it would be inappropriate to allow default judgment. Mulitauaopele v. American Samoa Gov’t and Tax Office, 4 A.S.R.3d 86 (Trial Div. 2000).

In American Samoa, the court must scrutinize the evidence before a default judgment may be entered, even in the case where the amount sought in the complaint is fully liquidated. AV Bingo Supplies v. Pacific Rim Enterprises, 5 A.S.R.3d 101 (Trial Div. 2001).

In motions for default judgment the court looks to direct evidence to determine whether the claimed indebtedness has been correctly calculated. AV Bingo Supplies v. Pacific Rim Enterprises, 5 A.S.R.3d 101 (Trial Div. 2001).

Where plaintiff’s sought default judgment against individual, but evidence presented was unclear as to how such person was liable for supplies to shipped to separate business entity, court would not enter default judgment. AV Bingo Supplies v. Pacific Rim Enterprises, 5 A.S.R.3d 101 (Trial Div. 2001).

The rate of pre-judgment interest which the law presumes, in the absence of a written stipulation by the debtor to a different permissible rate, is 6%. AV Bingo Supplies v. Pacific Rim Enterprises, 5 A.S.R.3d 101 (Trial Div. 2001).

Any claim for pre-judgment interest beyond the statutorily-mandated 6% rate is usurious and unenforceable. AV Bingo Supplies v. Pacific Rim Enterprises, 5 A.S.R.3d 101 (Trial Div. 2001).

In American Samoa, the court must scrutinize the evidence before a default judgment may be entered. Cummins Engine Co., Ltd. v. Bay Area Diesels, Inc., 6 A.S.R.3d 99 (Trial Div. 2002).

Before default judgment may be granted, the evidence on file must satisfy the court that the calculation of the debt in question is accurate. Cummins Engine Co., Ltd. v. Bay Area Diesels, Inc., 6 A.S.R.3d 99 (Trial Div. 2002).

Where default judgment on a debt is sought, direct evidence of the debt, such as invoices and receipts, is necessary to sufficiently establish the amount—a conclusory affidavit will not suffice. Cummins Engine Co., Ltd. v. Bay Area Diesels, Inc., 6 A.S.R.3d 99 (Trial Div. 2002).

§ 10(6) ¾Interlocutory & Collateral Orders

Counsel who wished to readvance an argument that had been rejected by the court should have done so by filing a timely motion to reconsider the court's interlocutory order, not by simply ignoring the order. Lutu v. Semeatu, 13 A.S.R.2d 88.

Where defendant asserts a right which is or includes a right not to bear the burden of the suit itself, regardless of the outcome, he may immediately appeal a denial of that right under the collateral order exception. Kim v. American Samoa Government, 17 A.S.R.2d 193.

Generally, an interlocutory order during the course of a judicial proceeding is not a final decision that can be immediately appealed to the High Court, but is reviewable only by means of appeal from an adverse judgment in the main proceeding. Kim v. American Samoa Government, 17 A.S.R.2d 193.

An interlocutory order is final and thus appealable if it finally determines claims of right separable from and collateral to rights asserted in the main action, too important to be denied review, and too independent of the cause itself to require that appellate review be deferred until the whole case is adjudicated. Kim v. American Samoa Government, 17 A.S.R.2d 193.

To fall within 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. Kim v. American Samoa Government, 17 A.S.R.2d 193.

A collateral order is generally regarded as effectively unreviewable and therefore final --- even if a later appeal from an adverse judgment in the principal action is possible --- when substantial rights would be lost if appeal were delayed until the main stream of the litigation is terminated. Kim v. American Samoa Government, 17 A.S.R.2d 193.

Defendant's appeal of an interlocutory order denying his asserted absolute right to appointment of an interpreter on request falls within the collateral order exception since he is asserting a right not to be tried under such circumstances, and such right is effectively unreviewable, since denial of an interpreter generally requires a showing of prejudice to obtain a reversal. Kim v. American Samoa Gov't, 17 A.S.R.2d 193.

An interlocutory appeal of an agency action or ruling is available only if review of the final agency decision would not provide an adequate remedy. A.S.C.A. § 4.1040(c). Sala v. American Samoa Government, 20 A.S.R.2d 80.

An interlocutory order during the course of a trial or other judicial proceeding is generally not a "final decision" within the meaning of A.S.C.A. § 3.0309 and similar statutes. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

An interlocutory order falling within the collateral order exception can be appealed. To fall within the 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. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

A collateral order is generally regarded as unreviewable where substantial rights would be lost if appeal were delayed until the main stream of the litigation is terminated. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

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. Progressive Ins. Co., Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 57 (Trial Div. 2001).

The requirement that a pre-trial order be final or fall within the collateral order exception to the finality rule before it may be appealed applies to interim orders before they may be reconsidered. Progressive Ins. Co., Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 57 (Trial Div. 2001).

§ 10(7)¾Res Judicata & Collateral Estoppel

Fact which is in issue in former suit and determined therein by court of competent jurisdiction cannot be raised in later action by same parties or their privies whether the former and latter cause of action be identical or different. Sapela v. Mageo, 1 A.S.R. 143.

Where issue of adverse possession has been correctly determined by previous decision, court will not reconsider it upon motion for new trial. Taliutafa v. Toaga, 2 A.S.R. 218.

Where plaintiff in former suit represented class in which petitioner of present suit is included, former decision becomes law of case and applies to present petitioner so that new trial is not necessary. Taliutafa v. Toaga, 2 A.S.R. 218.

Privity involves person so identified in interest with another that he represents same legal right; privity in relation to doctrine of res judicata is privity as it exists in relation to subject matter of litigation. Toomata v. Vea, 2 A.S.R. 564.

Material facts or questions which were issue in former action, and were admitted or judicially determined, are conclusively settled by judgment rendered therein, and such facts or questions become res judicata and may not again be litigated in subsequent action between same parties, whether second action is on same or different cause of action. Toomata v. Vea, 2 A.S.R. 564.

Doctrine of judicial estoppel makes it mandatory upon court to find that party is member of certain family since this fact had been previously determined in prior litigation. Toomata v. Vea, 2 A.S.R. 564.

Judgment determining property rights binds only those who were parties and persons in privity with them. Mulu v. Taliutafa, 3 A.S.R. 82.

Rights of person not party to suit nor in privity with party are not affected by prior judgment concerning land presently in dispute, nor is such judgment res judicata with respect to him. Tialavea v. Aga, 3 A.S.R. 272.

Court is bound by prior decision between same parties which found that disputed lands were communal family lands. Faamuli v. Leiato, 3 A.S.R. 308.

Party may be estopped from taking inconsistent position in subsequent judicial proceeding. Scanlan v. Steffany, 3 A.S.R. 583.

Where suit is dismissed by plaintiff voluntarily, he is not estopped from taking inconsistent position in subsequent proceedings. Scanlan v. Steffany, 3 A.S.R. 583.

Party may not be estopped from maintaining inconsistent position in subsequent judicial proceeding unless he was successful in prior judicial proceeding. Scanlan v. Steffany, 3 A.S.R. 583.

Court will not dismiss application to register land where prior decision evicted applicant from land where there are two new parties to action who were not parties to previous case. Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Court will not dismiss application to register land where prior decision held that applicant should be evicted from land and enjoined from returning since present case is different kind of action. Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383.

Where no judgment for prior court decision can be found, decision cannot constitute res judicata against any of parties in present case, but transcript may be used as evidence in determining ownership of land. Aumoeualogo v. Mamoe, 4 A.S.R. 742.

Parties and their privies are barred from relitigating same cause of action, since first judgment settles all matters that were or might have been determined therein. Tuitasi v. Lualemaga, 4 A.S.R. 798.

In subsequent suit between parties and privies involving different cause of action, parties are only barred from relitigating matters determined in first proceeding and not those that might have been determined. Tuitasi v. Lualemaga, 4 A.S.R. 798.

Person not party to nor in privity with litigant in prior action may invoke res judicata against prior litigant or privy in earlier action. Tuitasi v. Lualemaga, 4 A.S.R. 798.

Person not party nor in privity is denied due process if judgment in prior action binds him. Tuitasi v. Lualemaga, 4 A.S.R. 798.

To be in privity and barred by res judicata, non-party must be so identified in interest with party to former litigation that he represents same legal right in respect to subject matter involved. Tuitasi v. Lualemaga, 4 A.S.R. 798.

Plea of res judicata is affirmative defense that must be pleaded and proved by proponent, unless appearing affirmatively in pleadings of party against whom asserted. Tuitasi v. Lualemaga, 4 A.S.R. 798.

Defense of res judicata is properly raised by motion to dismiss. Tuitasi v. Lualemaga, 4 A.S.R. 798.

Where private parties litigate land dispute, and Government is not party to dispute, court’s determination of ownership in one of parties does not preclude greater right in Government nor does it determine rights of Government in land. Mageo v. Government, 4 A.S.R. 874.

Under principle of res judicata, judgment or decree of court of competent jurisdiction on merits concludes parties and privies to litigation and constitutes bar to new suit involving same cause of action. Willis v. Taupo, 4 A.S.R. 934.

Where another member of family brings second suit identical to one previously denied against same defendant, he is barred by res judicata. Willis v. Taupo, 4 A.S.R. 934.

Where plaintiff brought action for eviction and this remedy was denied, he cannot again bring same action concerning the same land against same defendant. Willis v. Taupo, 4 A.S.R. 934.

Under principle of res judicata, any right, fact, or matter in issue and directly adjudicated on or necessarily involved in determination of action in which judgment is rendered is conclusively settled and cannot again be litigated between parties and privies whether or not claim or subject matter of two suits is same. Willis v. Taupo, 4 A.S.R. 934.

Basis of res judicata is that there should be end to litigation and that party should not be harassed twice by opponent. Willis v. Taupo, 4 A.S.R. 934.

Where previous decision determined predecessor title holders, court will not ignore determination in order to accept unsupported statement of contestant to contrary. Taufaasau v. Manuma, 4 A.S.R. 947.

Land title action was barred by res judicata when ownership of same tract had been resolved between same families over same issues by earlier final judicial resolution. Taulaga M. v. Patea S., 4 A.S.R.2d 186.

A trial court decision that was not appealed and that adjudicated ownership of a tract of land acquired the effect of res judicata and bound the court in later dispute between the same parties over the same tract of land. Te'o v. Sotoa, 5 A.S.R.2d 90.

Party who unsuccessfully sought title to a tract of land in previous action and failed to appeal may not later resurrect same claim to same land. Sialega v. Taito, 5 A.S.R.2d 99.

Since corporation unrepresented by counsel was presumed to be a relatively sophisticated litigant, court would sign "stipulated judgment" agreed to by the corporation as long as its officers understood that the stipulated judgment was substantially greater than would be taken against the corporation if it simply did not appear. Wattie Exports Limited v. Pacific Industries, Inc., 6 A.S.R.2d 30.

Garnishee bank that had elected not to retain counsel and whose employee attended garnishment hearing but did not request to testify could not argue in collateral attack on resulting judgment that it had been denied an opportunity to be heard. Amerika Samoa Bank v. Haleck, 6 A.S.R.2d 54.

Losing candidate for matai title and his supporters, who from the time of the adverse judgment had attempted to prevent the reunification of the family and compliance by the prevailing candidate with the traditional prerequisites for formal ceremonial assumption of the title, would not prevail in a subsequent suit seeking removal of the prevailing candidate on the ground that he had not undergone such a ceremony. In re Matai Title Sotoa, 6 A.S.R.2d 91.

After a final judgment, rule of res judicata bars relitigation by the parties of questions raised by the pleadings or of related questions that might have been raised and thus ordinarily precludes court from reopening the proceeding in order to consider evidence and arguments for a reduction or increase in the amount of the judgment. Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84.

Trial court decision adjudicating land ownership that was not appealed became res judicata and bound the court in a later dispute between the same parties over the same tract of land. Estate of Sotoa v. Te`o, 8 A.S.R.2d 165.

Judgment in prior case, between same parties and involving same land as the present case, was res judicata and therefore bound the parties and the court notwithstanding losing party's contention that the judgment did not accord with Samoan custom. Aoelua v. Tela, 10 A.S.R.2d 20.

Where judgment in prior case, between same parties but involving different land, had rejected one party's contention that he was the owner according to Samoan custom of all lands occupied by the other party, court deciding subsequent case must reject this contention notwithstanding the party's contention that the prior judgment did not accord with Samoan custom. Aoelua v. Tela, 10 A.S.R.2d 20.

Judicial decision stating that a certain tract (1) was "the property of" a named party, (2) that she should have the rents during her lifetime, and (3) that she should make a will saying who she wanted to receive the rentals after her death, adjudicated the question of title to the property as between the parties to the case and their successors in interest. Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

Res judicata applies only where the parties and the subject matter of the earlier case are identical to those of the case at hand. Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

Collateral estoppel applies only against a party who was represented in earlier litigation; a party who wins a lawsuit is not automatically entitled to a similar judgment against people who were not parties to the earlier litigation and who are not successors in interest of anybody who was. Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

When more than one lawsuit arises from a single chain of events and the first lawsuit decides mixed questions of law and fact, the doctrine of stare decisis precludes relitigation only by parties who have already litigated the questions or who had a fair chance to do so in the first lawsuit. Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

Trial court decision whose application to persons who were not parties had been reversed by appellate court as a denial of due process should not be mechanically imposed upon such persons in subsequent litigation brought against them by the original plaintiff. Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54.

Appellant is collaterally estopped from denying the separate and independent nature of two matai titles where the identical factual issue was decided in prior litigation between the same parties and the issue was essential to resolution of the prior controversy. Tela v. Aoelua, 12 A.S.R.2d 40.

Prior judicial decision regarding the registration of land is res judicata, even if it was wrongly decided; arguments that the prior decision was contrary to custom and violative of treaty either were or should have been presented to the court deciding that case, and it would be totally contrary to the principles of finality underlying the judicial process to relitigate a matter that was already fully litigated. Tela v. Aoelua, 12 A.S.R.2d 40.

Statute providing that land should not be registered when a competing application for registration is pending neither renders void a final judgment entered in violation of its terms, nor otherwise permits a collateral attack on that judgment. A.S.C.A. § 37.0101. Tela v. Aoelua, 12 A.S.R.2d 40.

Since res judicata requires an existing final judgment rendered upon the merits, the dismissal of a prior action with prejudice for failure to prosecute is not res judicata where the court amended its order to clarify that it was not a judgment on the merits. Patau v. Rosendahl Corp., 14 A.S.R.2d 79.

Barring land claims by res judicata or collateral estoppel is improper if the parties or their predecessors-in-title were not parties in the previous case. Afualo v. Fanene, Pualioa v. Afualo, 15 A.S.R.2d 48.

Even under the mutuality doctrine, which has largely been abandoned, the government could sue a convicted criminal for civil damages, and the defendant would be estopped to deny the facts entailed by his conviction. Galea`i v. Atofau, 16 A.S.R.2d 76.

Collateral estoppel applies whether defendant's conviction resulted from a trial or from a guilty plea, even if induced by a plea bargain. Galea`i v. Atofau, 16 A.S.R.2d 76.

With the abandonment of the mutuality requirement, individual victims of crime can now benefit from collateral estoppel in the same ways and to the same extent that the government has always done. Galea`i v. Atofau, 16 A.S.R.2d 76.

Majority rule gives judgments based on guilty pleas the same collateral effect as other criminal convictions and, as such, are conclusive of all issues that would have been resolved by a conviction following a trial. Galea`i v. Atofau, 16 A.S.R.2d 76.

The traditional requirement is that a party should be estopped only with respect to those matters that were genuinely at issue and genuinely decided in the earlier case. Galea`i v. Atofau, 16 A.S.R.2d 76.

At least when a defendant's admission to a crime was made upon the advice of competent counsel, collateral estoppel applies with respect to issues which were distinctly and directly put at issue by the pleadings, which were central rather than peripheral to the proceeding, and which were essential to the outcome. Galea`i v. Atofau, 16 A.S.R.2d 76.

Neither a guilty plea nor a verdict after trial estops the defendant with respect to any issue not squarely resolved by the judgment; with respect to these elements a plaintiff must present evidence other than the guilty plea, and a defendant is free to controvert any such evidence. Galea`i v. Atofau, 16 A.S.R.2d 76.

Samoan communal land belongs to families rather than individuals, and a judgment against the family is binding on the family despite the succession of matai-title holders through time. Taulaga v. Patea, 17 A.S.R.2d 34.

A person who takes an interest in real property from one who litigated the property's title is in privity with him and so is bound by res judicata. Puailoa v. Estate of Lagafuaina, 19 A.S.R.2d 40.

Res judicata applies only 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.

Even if erroneous, a court's decision as to whether a parcel of land is a person's individual land or a family's communal land is binding on later courts. Puailoa v. Estate of Lagafuaina, 19 A.S.R.2d 40.

A court order requiring the Registrar to issue a land-registration certificate did not bar a plaintiff from litigating the issue of whether a registration of somebody else's property, affirmatively identified as such by the applicant in his registration documents, is nevertheless a valid registration, when neither this issue nor the plaintiff was previously before the court. Ava v. Logoai, 19 A.S.R.2d 75.

An objection to a proposed lease, when found to be nothing more than an attempt to revive a previously litigated ownership question, will not be entertained due to res judicata. Utu v. Alaimalo, 22 A.S.R.2d 92.

Because a guilty plea in a prior criminal action necessarily eliminates a full and contested presentation of evidence on the issues and may only indicate a compromise or an expectation of a more advantageous disposition of a criminal accusation, the policy underlying collateral estoppel would not be truly served by making a guilty plea conclusive in a civil action. Amisone v. Talaeai, 23 A.S.R.2d 52.

A case does not have res judicata or collateral estoppel effect when the parties and subject matter in a later case are different. Reid v. Puailoa, 23 A.S.R.2d 101.

While in rem and in personam claims may be joined, res judicata applies from an in personam action against a shipowner to an in rem action against his ship (and vice versa); thus, one may not sue twice on the legal fiction that a ship and her owner are two different parties. Southwest Marine of Samoa, Inc. v. M/V Kwang Myong #71, 23 A.S.R.2d 156.

In a state where the welfare of the child is the primary consideration in shaping a custody decree and where the custody decree is not irrevocable or unchangeable, the custody decrees of that state's courts are ordinarily not res judicata in that state or elsewhere, except as to the facts before the court at the time of judgment. In re A Minor Child, 28 A.S.R.2d 33.

The sum and substance of the whole doctrine of res judicata is that a matter once judicially decided is finally decided. American Samoa Gov't v. Meredith, 28 A.S.R.2d 92.

A collateral attack on a condemnation judgment will be heard only when the judgment is attacked as void, and not merely technically defective. American Samoa Gov't v. Estate of Fuimaono Tuinanau, 28 A.S.R.2d 187.

The doctrine of res judicata precludes relitigation of the legal and factual issues that were settled between the same parties in prior litigation. American Samoa Gov’t v. Meredith, 1 A.S.R.3d 14 (App. Div. 1997).

The doctrine of res judicata precludes relitigation of issues that could have been raised but may not have been raised in the prior litigation. American Samoa Gov’t v. Meredith, 1 A.S.R.3d 14 (App. Div. 1997).

Where doctrine of res judicata barred action, equitable claims, claims regarding oral representations made by government officials, and claims that the government forfeited its title need not be reached. American Samoa Gov’t v. Meredith, 1 A.S.R.3d 14 (App. Div. 1997).

Under the judicially-developed doctrine of collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation. Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

Collateral estoppel, like the related doctrine of res judicata, relieves parties of the cost and vexation of multiple lawsuits, conserves judicial resources, and encourages reliance on adjudication by preventing inconsistent decisions. However, the doctrines are distinct in that res judicata applies only between parties and their privies to the prior action, while collateral estoppel may be invoked by a stranger to the prior action against a party to that action. Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

Stranger plaintiffs may, under certain circumstances, use the doctrine of collateral estoppel offensively, to estop a defendant from relitigating the issues which the defendant previously litigated and lost against another plaintiff. Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

A trial court has broad discretion in determining when offensive collateral estoppel is appropriate, and must consider the following factors: (1) whether the new plaintiff could have easily joined the previous action; (2) whether the defendant had sufficient incentive in the earlier action to litigate the matter with vigor; (3) whether the application of collateral estoppel would be unfair to the defendant for other reasons; (4) whether the issues in the two actions are identical; (5) whether the court’s holding in the earlier action was actually litigated and. necessary to a determination on the merits; (6) whether the judgment in the earlier action was final. Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

The burden of proof is on the party against whom the doctrine of collateral estoppel is sought to be applied to produce some evidence indicating that the party seeking to apply the doctrine adopted a "wait and see" attitude so as to avoid the binding force of a potentially adverse ruling in the previous action. This is true even where the plaintiff has not adequately explained the failure to join the previous litigation. Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

Where future suits are foreseeable at the time of the first action, the defendant cannot claim that there was a lack of incentive to litigate the issue so as to avoid the application of the doctrine of collateral estoppel. Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

Issue preclusion in the context of the doctrine of collateral estoppel only applies when the issue raised is the same issue that was decided in an earlier case. Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

The doctrine of issue preclusion prevents relitigation of all issues of fact or law that were actually litigated and necessarily decided in the prior proceeding. Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

Issue preclusion only applies to final judgments on the merits. For purposes of issue preclusion, final judgment includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect. The fact that the losing party in the earlier case may still appeal the ruling to a higher appellate court does not render the judgment non-final. Nelson & Robertson Pty. Ltd v. K.M.S.T., Inc., 1 A.S.R.3d 120 (Trial Div. 1997).

A judgment in a prior case, between the same parties, or those in privity with them, which involves the same land title issue, is res judicata and binds the parties and the court. Mailei v. Faumuina, 1 A.S.R.3d 206 (Land & Titles Div. 1997).

Res judicata is a rule of substantive law and not of practice or procedure. Mailei v. Faumuina, 1 A.S.R.3d 206 (Land & Titles Div. 1997).

Res judicata cannot be set aside by employing A.S.C.A. § 3.0242(b). Mailei v. Faumuina, 1 A.S.R.3d 206 (Land & Titles Div. 1997).

Where a prior case previously adjudicated the same issues between the same families and was resolved in a final judgment as to the communal nature and ownership of the land, the communal nature and ownership of the land is res judicata in a subsequent case. Taylor v. Solaita, 3 A.S.R.3d 218 (Land & Titles Div. 1999).

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. Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Res judicata applies to a “final” judgment between the “parties” or those in privity with them. Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Where earlier, final judgment determined that vessel owners’ association was legal entity with vested ownership interest in vessels, and where plaintiffs in instant action and association were parties in the prior action, association was estopped from relitigating same issues in instant action. Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Where case involves the same parties and issue regarding land ownership and court has previously adjudicated the land at issue to be communal land of a certain family, court will recognize the res judicata effect of the previous decision to reinforce the holding that the land at issue is that family’s communal land. Tuigamoa v. Tu`ugaolo, 5 A.S.R.3d 239 (Land & Titles Div. 2001).

Res judicata, or claim preclusion, applies when (1) there has been a final judgment on the merits (2) in a prior action involving the same parties or their privies and (3) the prior action involved the same claim. Alai`asa v. Te`o, 5 A.S.R.3d 266 (Land & Titles Div. 2001).

A judgment will have preclusive effect if the same parties are involved or if a non-party was in privity with a party to the previous action. Alai`asa v. Te`o, 5 A.S.R.3d 266 (Land & Titles Div. 2001).

Privity is a term that describes the relationship between a party and a nonparty that is deemed close enough to warrant the application of claim or issue preclusion to the party. Alai`asa v. Te`o, 5 A.S.R.3d 266 (Land & Titles Div. 2001).

Res judicata requires that the subject matter of the earlier case be identical to that of the case at hand. Alai`asa v. Te`o, 5 A.S.R.3d 266 (Land & Titles Div. 2001).

Res judicata prevents not only the relitigation of matters actually determined in a previous, final case, but also precludes the court from hearing other matters which could properly have been raised and determined in that action, whether or not such matters were in fact considered. Alai`asa v. Te`o, 5 A.S.R.3d 266 (Land & Titles Div. 2001).

A person who takes an interest in real property from one who litigated the property’s title is in privity with him and is bound by res judicata. Alai`asa v. Te`o, 5 A.S.R.3d 266 (Land & Titles Div. 2001).

Collateral estoppel, or issue preclusion, bars the relitigation of issues actually adjudicated in previous litigation between the same parties. Ulifaleilupe v. Uiagalelei, 6 A.S.R.3d 61 (App. Div. 2002).

To foreclose relitigation of an issue under collateral estoppel: 1) the issue at stake must be identical to the one alleged in the prior litigation; 2) the issue must have been actually litigated in the prior litigation; and 3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in the earlier action. Ulifaleilupe v. Uiagalelei, 6 A.S.R.3d 61 (App. Div. 2002).

The party claiming issue preclusion has the burden of proving each element necessary to bar relitigation of the issue. Ulifaleilupe v. Uiagalelei, 6 A.S.R.3d 61 (App. Div. 2002).

The Trial Division of the High Court is not bound by an erroneous salary calculation determined by the American Samoa Government Wage and Hour Board. Jiang v. Daewoosa Samoa, Ltd., 6 A.S.R.3d 91 (Trial Div. 2002).

The doctrine of res judicata holds that a final judgment on the merits in an action bars a later action involving the same parties, or their privies, and the same issues. Tiapula v. Isumu Leapagatele's Children, 6 A.S.R.3d 324 (Land & Titles Div. 2002).

§ 10(8) —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. Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

Defense of merger was inapplicable when Court treated action as action upon personal judgment rather than action in rem on maritime lien. Hong v. Chung Yong # 21, 5 A.S.R.3d 197 (Trial Div. 2001).

§ 11 Post Judgment Motions & Appeals

§ 11(1) —Motion for New Trial or Reconsideration

§ 11(1)(a)—General Provisions

A motion for a new trial may be styled a motion for "reconsideration", as long as it is filed within the ten-day deadline and clearly apprises the trial court of the particular errors claimed in regards to its decision. Lualemana v. Asifoa, 17 A.S.R.2d 151.

Motion for reconsideration or new trial will be denied when parties agree to a settlement. Willis v. Fai`ivae, 18 A.S.R.2d 61.

The requirement of filing a motion for a new trial or reconsideration of judgment prior to an appeal is jurisdictional. A.S.C.A. § 43.0802(a). Rocha v. Rocha, 20 A.S.R.2d 63.

The purpose of requiring a motion for new trial, which sets forth with particularity the grounds for reversal, is to avoid unnecessary appeals by giving the trial court the opportunity to correct any errors it may have made. Soli Corporation v. Amerika Samoa Bank, 25 A.S.R.2d 40.

It is unimportant whether a motion is styled a motion for new trial or a motion to reconsider as long as it is timely and clearly informs the court of claimed errors. Soli Corporation v. Amerika Samoa Bank, 25 A.S.R.2d 40.

To appeal a decision of the trial division, a motion for new trial must be filed within 10 days after a judgment or order is entered. A.S.C.A. § 43.0802 and A.C.R. Rule 4(a)(1). The denial of a motion for relief from judgment under T.C.R.C.P. Rule 60 qualifies as an order under the foregoing rules. Soli Corporation v. Amerika Samoa Bank, 25 A.S.R.2d 40.

Arguments that could have been made at trial may not be made for the first time either on a motion for new trial or on appeal. In re Matai Title "Tuaolo", 28 A.S.R.2d 137.

A party moving for reconsideration or new trial must do more than reiterate the trial court's reasons for a decision and then make a blind assertion that we were incorrect. It is the attorney's, not the court's, job to advocate, do legal research, and construct the legal theory upon which a losing party might oppose our decision. G.M. Meredith and Assoc. v. Blue Pacific Management Corp., 28 A.S.R.2d 204.

On a motion for a new trial, the court will not consider arguments that the moving party failed to raise during the original trial. Clifton v. Voyager, 31 A.S.R.2d 12.

The court will not accept arguments on issues raised for the first time in a motion for a new trial if they could have been properly raised at trial. This is true even in the case of an interesting and possibly important argument. Clifton v. Voyager, 31 A.S.R.2d 12.

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. Progressive Ins. Co., Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 57 (Trial Div. 2001).

A motion for reconsideration or new trial is a necessary precondition for filing an appeal. Progressive Ins. Co., Ltd. v. Southern Star Int’l, Inc., 5 A.S.R.3d 57 (Trial Div. 2001).

Pre-trial orders governing discovery, not falling within finality exception or collateral order exception, may only be challenged on appeal from final decision. Motion to reconsider order denying motion to compel discovery was denied. YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 88 (Trial Div. 2001).

If 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 statutory ten-day deadline, then Appellate Division lacks jurisdiction to entertain appeal. Suluai v. Nat'l W. Life Ins. Co., 6 A.S.R.3d 216 (Trial Div. 2002).

The common practice of American Samoa courts is to consider their orders—which often contain a recitation of the facts, procedural history, and legal reasoning—as judgments for purposes of filing post-judgment motions. Am. Samoa Gov’t v. NTV Electronics, 6 A.S.R.3d 289 (Trial Div. 2002).

All civil cases in American Samoa are bench trials, and there is no mechanism or rule that envisions a motion for a mistrial; thus, a motion for mistrial in a civil action in American Samoa will be treated as a motion for a new trial. Development Bank of American Samoa v. Tuika, 7 A.S.R.3d 86 (Trial Div. 2003).

A trial court in American Samoa should explicitly state its disposition of a prejudgment new trial motion, even if it does not explain its reasons. Development Bank of American Samoa v. Tuika, 7 A.S.R.3d 86 (Trial Div. 2003).

There is no basis for reconsideration of a denial of a summary judgment motion. RDL, Inc. v. American Samoa Community College, 7 A.S.R.3d 103 (Trial Div. 2003).

§ 11(1)(b)—Time for Filing

Court rules require a "motion to alter or amend" a judgment to be served on opposing parties within ten days of judgment. T.C.R.C.P. Rule 59. Olotoa v. Bartley, 3 A.S.R.2d 21.

Territorial statute requiring motions for new trial to be "filed" within ten days of judgment would not be construed to require service on opposing parties within the ten day period. A.S.C.A. § 43.0802. Olotoa v. Bartley, 3 A.S.R.2d 21.

Statutory period for filing a motion for a new trial commences with the announcement of judgment. A.S.C.A. § 43.0802. Judicial Memorandum, 4 A.S.R.2d 172.

The Clerk of Court will file a written entry of any judgment announced from the bench; the failure of the Clerk to do so, however, does not prevent the statutory period for filing motions for new trial from commencing with the announcement of judgment by the court. A.S.C.A. § 43.0802. Judicial Memorandum, 4 A.S.R.2d 172.

Events subsequent to the announcement of judgment, such as the issuance of a written opinion, receipt by counsel of notice of the judgment, or the correction of an error or omission in the judgment, do not extend the time for filing motions for new trial. Judicial Memorandum, 4 A.S.R.2d 172.

A correction so substantial as to create a new judgment, or a statement from the bench indicating informally what the judgment will be but reserving formal announcement of judgment until a later date, would cause the statutory period for filing motions for new trial to begin on the date of the correction or of the formal announcement rather than on the date of the initial announcement. Judicial Memorandum, 4 A.S.R.2d 172.

Counsel uncertain of the date by which motion for new trial must be filed should request the court's guidance rather than assume the filing date has been extended. Judicial Memorandum, 4 A.S.R.2d 172.

Statute imposing ten day time limit on motions for new trial is jurisdictional and leaves court no discretion to extend or disregard the time limit. A.S.C.A. § 43.0802(a). Satele v. Uiagalelei, 8 A.S.R.2d 97.

The statutory deadline for filing motions for reconsideration or new trial is jurisdictional; if no such motion is filed within the requisite ten days, the Court no longer has the power to reconsider or amend its judgment and the losing party no longer has a right to appeal. A.S.C.A. § 43.0802(a). In re Matai Title Muagututi`a, 15 A.S.R.2d 1.

The requirement that a motion for a new trial be filed within ten days after the announcement of the judgment is a mandatory prerequisite to the exercise of jurisdiction by the Appellate Division. A.S.C.A. § 43.0802(a). In re Matai Title Mulitauaopele, 17 A.S.R.2d 75.

The filing of a motion for new trial within ten days of the announcement of judgment is a mandatory prerequisite to appeal. A.S.C.A. § 43.0802(a). Lualemana v. Asifoa, 17 A.S.R.2d 151.

A motion for a new trial may be styled a motion for "reconsideration", as long as it is filed within the ten-day deadline and clearly apprises the trial court of the particular errors claimed in regards to its decision. Lualemana v. Asifoa, 17 A.S.R.2d 151.

A motion for a new trial is deemed filed when presented to the clerk for filing, absent valid reasons for rejecting it. Rocha v. Rocha, 20 A.S.R.2d 63.

In order for the appellate court to have jurisdiction over an appeal, (1) a motion for new trial or reconsideration must be filed within ten days after the announcement of the judgment or sentence, and (2) the notice of appeal must be filed within ten days after the denial of that timely motion. A.S.C.A. § 43.0802. Toluao v. Fuimaono, 21 A.S.R.2d 12.

It is unimportant whether a motion is styled a motion for new trial or a motion to reconsider as long as it is timely and clearly informs the court of claimed errors. Soli Corporation v. Amerika Samoa Bank, 25 A.S.R.2d 40.

A.S.A.C. § 26.0320(h) requires that "[w]ithin 10 days after receipt of the decision the applicant or any other interested party may file a written motion for reconsideration." McGuire v. Zoning Board, 26 A.S.R.2d 59.

Memoranda supporting motion for a new trial must be filed no later than 10 days after the judgment to provide the adverse party an opportunity to respond. A.S.C.A. § 43.0802(a). Korea Deep Sea Fisheries v. M/V Corona, 27 A.S.R.2d 120.

Court will not entertain a motion to alter or amend a judgment when adverse party has been served with the motion later than 10 days after entry of judgment. T.C.R.C.P. 59(e). Korea Deep Sea Fisheries v. M/V Corona, 27 A.S.R.2d 120.

T.C.R.C.P. Rule 6(a) sets forth the applicable time to file motions for reconsideration or new trial under A.S.C.A. § 43.0802(a). PAL Air International, Inv. v. Porter, 1 A.S.R.3d 1 (App. Div. 1997).

The relief afforded by T.C.R.C.P. Rule 6(a), extending the period for time computations to the next business day when the last day falls on a Saturday, Sunday, or legal holiday, applies to the filing period for motions for a new trial. Bank of Hawaii v. Neru, 1 A.S.R.3d 69 (Trial Div. 1997).

Where a party timely submits a motion for new trial on grounds that the court abused its discretion in an evidentiary finding, but fails to timely file its brief and arguments, the motion will not be considered. Masaniai v. The Country Club, 2 A.S.R.3d 142 (Trial Div. 1998).

Under A.S.C.A. § 43.0802(a), a motion for new trial must be filed within 10 days after the announcement of the judgment, and a late filing is not excused on the ground that the meaning of the judgment was not made clear until later. Fou v. Talofa Video, 2 A.S.R.3d 152 (Trial Div. 1998).

Under A.S.C.A. § 43.0802(a), a motion for reconsideration must be filed within 10 days after the announcement of the judgment, and where a late filing is not excusable, the court lacks jurisdiction to consider it. Alai`asa v. Fanene, 2 A.S.R.3d 186 (Land & Titles Div. 1998).

Where party filed his motion for reconsideration on last day of 10-day period specified in A.S.C.A. § 43.0802(a), but failed to serve opposing parties until one day later, filing was nonetheless proper. Pita v. Garrett, 3 A.S.R.3d 213 (Land & Titles Div. 1999).

The 10-day time limit in which a party must file a motion for reconsideration or new trial is a mandatory time limit and is jurisdictional. Faumuina v. Tautolo, 5 A.S.R.3d 219 (Land & Titles Div. 2001).

Where court partially granted motion for reconsideration or new trial, the court’s order granting such motion effected a new judgment and the time limit for filing a subsequent motion for new trial ran from the date of that order. Faumuina v. Tautolo, 5 A.S.R.3d 219 (Land & Titles Div. 2001).

The new trial motion and appellate deadlines may begin to run despite the fact that no written judgment has issued. Am. Samoa Gov’t v. NTV Electronics, 6 A.S.R.3d 289 (Trial Div. 2002).

Where the court issues a judgment separate from its order, such is made clear in the court’s order, and the time to move for a new trial, and to appeal, begins running when the separate judgment is entered into the docket. Am. Samoa Gov’t v. NTV Electronics, 6 A.S.R.3d 289 (Trial Div. 2002).

Where court clerk stamped order amending judgment and docketed the same as court’s amended judgment pursuant to longstanding practice of court, such filing did not violate T.C.R.C.P. 58 or T.C.R.C.P. 54(a) and motion for reconsideration filed fourteen days later was properly considered tardy and dismissed. Am. Samoa Gov’t v. NTV Electronics, 6 A.S.R.3d 289 (Trial Div. 2002).

A motion for a new trial shall be filed within 10 days after the announcement of the judgment or sentence. In this context, the word ‘within’ is interpreted to include only the final limit and not the starting point. Development Bank of American Samoa v. Tuika, 7 A.S.R.3d 86 (Trial Div. 2003).

A motion for a new trial may be made no later than 10 days after the judgment, and it may also be made before the judgment. Development Bank of American Samoa v. Tuika, 7 A.S.R.3d 86 (Trial Div. 2003).

§ 11(1)(c)—Particularity Requirement

A motion for new trial should be sufficiently thorough and specific to inform the court and opposing counsel of the particular grounds for the requested relief. T.C.R.C.P. Rule 7(b)(1). Judicial Memorandum, 4 A.S.R.2d 172.

A motion for new trial must set forth "with particularity" the grounds on which the trial court decision should be reversed. T.C.R.C.P. 7(b)(1). Taulaga v. Patea, 17 A.S.R.2d 34.

The purpose of the particularity requirement is to avoid unnecessary appeals by giving the trial court itself a chance to correct any errors it may have made. T.C.R.C.P. 7(b)(1). Taulaga v. Patea, 17 A.S.R.2d 34.

A motion for a new trial must clearly apprise the trial court of the specific errors being alleged; a general statement that the court erred as a matter of fact, law, or custom does not fulfill this requirement. In re Matai Title Mulitauaopele, 17 A.S.R.2d 75.

A motion for a new trial may be styled a motion for "reconsideration", as long as it is filed within the ten-day deadline and clearly apprises the trial court of the particular errors claimed in regards to its decision. Lualemana v. Asifoa, 17 A.S.R.2d 151.

It is unimportant whether a motion is styled a motion for new trial or a motion to reconsider as long as it is timely and clearly informs the court of claimed errors. Soli Corporation v. Amerika Samoa Bank, 25 A.S.R.2d 40.

In the context of a motion for a new trial, the purpose of this particularity requirement is to avoid unnecessary appeals by giving the trial court itself a chance to correct any errors it may have made. In re Matai Title "Lolo", 26 A.S.R.2d 46.

When the grounds in a motion for new trial are stated too generally, the motion may be rendered null. Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 167.

T.C.R.C.P. Rule 7(b) requires that motions, unless made during a hearing or trial, shall be made in writing and state with particularity the grounds therefore. This rule is especially important in motions for a new trial to put the trial judge and the opposing party on fair notice of the particular errors that will be alleged on appeal and to avoid unnecessary appeals by giving the trial judge a chance to see the errors of his ways. Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 167.

On a motion for new trial or rehearing the moving party must state with particularity the grounds of a motion. American Samoa Gov't v. South Pacific Island Airsystems, Inc., 28 A.S.R.2d 170.

A party must cite the court to specific allegations of error, accompanied by legal citation where appropriate, or a motion for new trial or reconsideration shall be denied. In extreme instances, we may even treat the motion as a nullity, cutting off the party's right to further appeal. In re Minor Child, 30 A.S.R.2d 22.

In making a motion for new trial, an attorney must do more than present the court with unresearched and unsupported conclusory assertions. Failure to do so will subject the attorney to personal sanctions under T.C.R.C.P. 11. In re Minor Child, 30 A.S.R.2d 22.

In order to properly bring motion for new trial, party must fully apprise trial court of asserted errors in its judgment so that it may consider for itself whether any such errors occurred and make appropriate corrections, thereby obviating obvious appeals. Suluai v. Nat'l W. Life Ins. Co., 6 A.S.R.3d 216 (Trial Div. 2002).

§ 11(1)(d)—Grounds for New Trial or Reconsideration

Courts of equity may vacate a judgment obtained by mistake, fraud or false testimony and grant a new trial. Jewett v. McMoor, 1 A.S.R. 611.

Neither surprise at the time of a trial nor mistake as to the nature of the action are sufficient grounds for new trial. Jewett v. McMoor, 1 A.S.R. 611.

Generally, mere fact that damages awarded in original proceeding were excessive will not merit new trial. Jewett v. McMoor, 1 A.S.R. 611.

Court will not grant new trial where there is sufficient, competent evidence to support judgment in the original proceeding. Jewett v. McMoor, 1 A.S.R. 611.

To justify setting aside verdict and granting new trial, court must come to irresistible conclusion that verdict was not the product of free, sound and unbiased exercise of judgment. Jewett v. McMoor, 1 A.S.R. 611.

Party moving for new trial must show by affidavit that alleged newly discovered evidence was not known to movant at time of trial. Jewett v. McMoor, 1 A.S.R. 611.

Cumulative and impeaching evidence are not the kinds of evidence required to justify a new trial on grounds of newly discovered evidence. Jewett v. McMoor, 1 A.S.R. 611.

Rehearing will be granted if showing made that prior decision was based on false testimony which adverse party could not refute at time of prior hearing. Leano v. Leti, 2 A.S.R. 524.

Before court may grant rehearing, it must be satisfied that owing to mistake of law or misunderstanding of facts, decision has done injustice to particular case. Gi v. Mageo, 2 A.S.R. 383.

In order to grant a new trial on basis of newly discovered evidence, court must be convinced that evidence was not available nor could have become available with due diligence before trial and that evidence will probably change result of trial; new trial will not be granted where evidence is merely cumulative. Faagau v. Fuaga, 3 A.S.R. 488.

To warrant getting new trial on grounds of newly discovered evidence, it must appear that evidence will probably change result of trial, that it had been discovered since trial, that it could not have been discovered before trial by exercise of due diligence, that it is material to issue, and that it is not merely cumulative or impeaching. Malaga v. Mase, 3 A.S.R. 518.

Fact trial court presiding judge was called as witness and testified in connection with claims considered by War Damages Commission, of which he was member, is not error which would entitle appellant to new trial where testimony related to ministerial duties performed sixteen years ago which were matters of record. Mageo v. Government, 4 A.S.R. 874.

Where appellant requests new trial on ground of new evidence but, after continuance, fails to produce new evidence, request will be denied. Mageo v. Government, 4 A.S.R. 874.

Where appellant requests new trial, but nothing in record or during hearing on appeal warrants new trial, request will be denied. Mageo v. Government, 4 A.S.R. 874.

Where personality, character, demeanor and credibility of litigants are vital elements in case, appellate court will not try case de novo. Taufaasau v. Manuma, 4 A.S.R. 947.

Litigant could not raise on motion for new trial an issue about which the court had expressed serious concern at trial and which the parties expressly stipulated to exclude from the litigation. Olo v. Tulisua, 6 A.S.R.2d 129.

Defendant's motion for a new trial, made on the ground that he had received no actual notice of the trial date, was denied where it was shown that such notice was given in accord with statutory procedure by delivery to the defendant's home and receipt by his son two months prior to trial. Ava v. Moe, 8 A.S.R.2d 95.

Trial court properly declined to grant motion for reconsideration based on an issue that had not been properly raised at trial. Moea`i v. Alai`a, 12 A.S.R.2d 91.

A motion for new trial or rehearing in a non jury case should be based upon manifest error of law or mistake of fact, and a judgment should not be set aside except for substantial reasons. The burden on the moving party is to show substantial reasons that such relief should be granted. American Samoa Gov't v. South Pacific Island Airsystems, Inc., 28 A.S.R.2d 170.

A party moving for reconsideration or new trial must do more than reiterate the trial court's reasons for a decision and then make a blind assertion that we were incorrect. It is the attorney's, not the court's, job to advocate, do legal research, and construct the legal theory upon which a losing party might oppose our decision. G.M. Meredith and Assoc. v. Blue Pacific Management Corp., 28 A.S.R.2d 204.

The decision to hold a new trial is within the discretion of this court. The court will grant a motion for a new trial only where the moving party can show that the original decision is contrary to the clear weight of the evidence. Clifton v. Voyager, 31 A.S.R.2d 12.

On a motion for a new trial, the court will not consider arguments that the moving party failed to raise during the original trial. Clifton v. Voyager, 31 A.S.R.2d 12.

The court will not accept arguments on issues raised for the first time in a motion for a new trial if they could have been properly raised at trial. This is true even in the case of an interesting and possibly important argument. Clifton v. Voyager, 31 A.S.R.2d 12.

T.C.R.C.P. 59(a) does not specify the grounds for a new trial, but in nonjury actions, a new trial may be granted where the record shows a manifest error of law or fact; and 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. TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

Reconsideration is appropriate if the trial court is presented with newly discovered evidence, committed clear error or the initial decision was manifestly unjust, or if there is an intervening change in controlling law. TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 225 (Trial Div. 2000).

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. Nua v. Sunia, 4 A.S.R.3d 234 (Trial Div. 2000).

Trial Court Rule of Civil Procedure 59 gives a trial court broad discretion to permit a new trial in the interests of justice. Faumuina v. Tautolo, 5 A.S.R.3d 219 (Land & Titles Div. 2001).

Even when there is substantial evidence supporting the trial court’s decision, a new trial, and attendant reweighing of the evidence, may be conducted where the interests of justice would be furthered. Faumuina v. Tautolo, 5 A.S.R.3d 219 (Land & Titles Div. 2001).

Where new trial was warranted and previous associate judges sitting on case were unavailable, court could properly empanel other associate judges to hear case. Faumuina v. Tautolo, 5 A.S.R.3d 219 (Land & Titles Div. 2001).

In reviewing its previous decision on motion for reconsideration or new trial, Court is not required to guess at or construct legal theory upon which moving party opposes original decision. Suluai v. Nat'l W. Life Ins. Co., 6 A.S.R.3d 216 (Trial Div. 2002).

A motion for reconsideration or new trial should be based upon manifest error of law or mistake of fact, and a judgment should not be set aside except for substantial reasons. Boral Gas of American Samoa, Inc. v. Iaulualo, 7 A.S.R.3d 57 (Trial Div. 2003).

§ 11(2) —Relief from Judgment or Order - Rule 60 Motion

For motions to set aside a judgment, the Ruel provisions stating that collateral attack on the judgment must be made within a reasonable time can rarely time-bar attack based on voidness, but a judgment which the Court has power to make and which affords minimal due process is valid even if incorrect; the issue is essentially one of jurisdiction. Nouata v. Pasene, 1 A.S.R.2d 25 (App. Div. 1980).

A judgment that has become final cannot be disturbed in the absence of new evidence, fraud, surprise, or similar circumstances. T.C.R.C.P. Rule 60. Willis v. Willis, 4 A.S.R.2d 144.

Territorial statute permitting court to subordinate rules of "practice or procedure" to exigencies of justice and convenience does not give the court power to overturn a final judgment in the absence of new evidence, fraud, surprise, or similar circumstances, since res judicata is a rule of substantive law and not of procedure. A.S.C.A. § 3.0242(b); T.C.R.C.P. Rule 60. Willis v. Willis, 4 A.S.R.2d 144.

Party's untrue statements that his wife had been delinquent in pursuing a divorce action pending in Hawaii constituted "misrepresentation" justifying relief from territorial court decision to lift stay of local divorce proceeding that had been expressly conditioned on diligent pursuit of the Hawaii action. T.C.R.C.P. Rule 60(b). Wray v. Wray, 5 A.S.R.2d 34.

A non-fraudulent misrepresentation may form the basis for relief from judgment within rule permitting such relief in cases of "fraud, misrepresentation, or other misconduct." T.C.R.C.P. Rule 60(b). Wray v. Wray, 5 A.S.R.2d 34.

A court deciding whether a party is entitled to relief from judgment should not consider objections that could have been raised in an appeal. T.C.R.C.P. Rule 60(b). Wray v. Wray, 5 A.S.R.2d 34.

Whether to grant relief from a judgment is a matter within the discretion of the court, and the court should not grant relief when there is no chance that correction of the flaw in the proceedings leading to judgment would yield a different outcome on retrial. T.C.R.C.P. Rule 60(b). Wray v. Wray, 5 A.S.R.2d 34.

A party seeking relief from a judgment must show a "meritorious defense," not a "defense on the merits"; a defense can be meritorious although it concerns jurisdiction, standing, forum non conveniens, or any other issue that might cause a court which had reviewed both parties' positions never to reach "the merits." T.C.R.C.P. Rule 60(b). Wray v. Wray, 5 A.S.R.2d 34.

Doubts about whether to grant relief from a judgment should be resolved in favor of relief when the judgment was a default or otherwise resulted from a proceeding that was not fully litigated. T.C.R.C.P. Rule 60(b) Wray v. Wray, 5 A.S.R.2d 34.

Party's failure to file a timely motion for new trial was due to "excusable neglect" when she had received no notice of the trial and, as her adversary knew, was unable to learn of the trial and the resulting judgment until after the deadline for filing had passed. T.C.R.C.P. Rule 60(b). Wray v. Wray, 5 A.S.R.2d 34.

Motion for relief from judgment was not being used as an impermissible substitute for appeal when motion was based on facts and arguments that party opposing motion withheld from court and opposing counsel at the time of trial. T.C.R.C.P. Rule 60(b). Wray v. Wray, 5 A.S.R.2d 34.

Failure of co-signor of promissory note to appear in action on the note was "excusable neglect" justifying relief from default judgment where co-signor had always relied on her husband to manage the family's legal affairs, husband had assured her that they would be represented by counsel, and she was unaware of judgment against her until well after its entry. T.C.R.C.P. Rule 60(b). Amerika Samoa Bank v. R. Pritchard Ground Services, Inc., 5 A.S.R.2d 106.

Co-signor's allegation that bank had secured her signature on promissory note through specific material misrepresentation was a "meritorious defense" creating the possibility of a different result on retrial which, coupled with her excusable neglect to appear in lawsuit on the note, entitled her to relief from resulting default judgment. T.C.R.C.P. Rule 60(b). Amerika Samoa Bank v. R. Pritchard Ground Services, Inc., 5 A.S.R.2d 106.

Defendant seeking relief from default judgment on the ground that her failure to defend resulted from excusable neglect must not only prove that her neglect was excusable but also allege facts which, if proved upon retrial, would be likely to produce a different outcome. T.C.R.C.P. Rule 60(b). Amerika Samoa Bank v. R. Pritchard Ground Services, Inc., 5 A.S.R.2d 106.

Once a party has established a "meritorious defense" creating the possibility of a different result on retrial, court deciding whether to grant relief from judgment against that party should not assume the truth of opposing party's factual allegations that would, if proven upon retrial, produce the same result as in the judgment from which relief is sought. T.C.R.C.P. Rule 60(b). Amerika Samoa Bank v. R. Pritchard Ground Services, Inc., 5 A.S.R.2d 106.

Rule allowing relief from default judgments should be liberally construed; any doubt should be resolved in favor of setting aside the judgment so that the case may be decided on its merits. T.C.R.C.P. Rule 60(b). Amerika Samoa Bank v. R. Pritchard Ground Services, Inc., 5 A.S.R.2d 106.

In order to secure relief from a judgment, a party has the burden of proving not only that there was a technical flaw in the proceedings but also that the flaw had some effect on the outcome. T.C.R.C.P. Rule 60(b). Amerika Samoa Bank v. Haleck, 6 A.S.R.2d 54.

The court has discretion whether to grant relief from judgment, and denial of a motion for relief should be overturned only if the trial court has abused its discretion. T.C.R.C.P. Rule 60(b). Amerika Samoa Bank v. Haleck, 6 A.S.R.2d 54.

Garnishee bank that failed to respond to a writ of garnishment, to respond meaningfully to an order to show cause why judgment should not be entered against it, to appeal the judgment, and to justify its lapses was not entitled to relief from the judgment entered against it. T.C.R.C.P. Rule 60(b). Amerika Samoa Bank v. Haleck, 6 A.S.R.2d 54.

Circumstances constitute "other reason justifying relief from operation of judgment" where (1) plaintiff had demanded and was owed an amount in excess of $15 million; (2) court granted summary judgment for $5 million against vessel at a time when the vessel could not have been sold for more than $5 million; (3) at time of motion for relief from judgment the vessel had not yet been sold to satisfy the judgment, but could be sold for more than $10 million; (4) judgment was in rem against the vessel only; (5) the owners of the vessel were not sued personally and did not appear in the action; (6) the owners had borrowed $11 million from plaintiff and had made no payments; and (7) the owners would therefore receive a windfall of several million dollars if the vessel were sold for over $10 million and the plaintiff limited to recovery of the prior $5 million judgment. T.C.R.C.P. 60(b). Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84.

In cases where a party seeks relief from a default judgment, all but the most egregious neglect will usually be excused in deference to the principle that cases should ordinarily be tried on their merits. T.C.R.C.P. Rule 60(b). Satele v. Uiagalelei, 8 A.S.R.2d 97.

Motions for relief from judgment after trial should not be granted as freely as those seeking relief from default judgments, so as to encourage diligent preparation before trial and so as not to relegate the many hours spent at trial by opposing parties and the court to the status of pre-trial discovery. T.C.R.C.P. Rule 60(b). Satele v. Uiagalelei, 8 A.S.R.2d 97.

Even where party seeking relief from judgment on the ground of newly discovered evidence shows that the evidence could not have been discovered with due diligence before trial, the judgment should not be vacated unless the new evidence seems likely to produce a different outcome upon retrial. T.C.R.C.P. Rule 60(b). Satele v. Uiagalelei, 8 A.S.R.2d 97.

Party was not entitled to relief from stipulated judgment on the ground of mutual or unilateral mistake, where: (1) the party was an institution which had agreed to the stipulated judgment after negotiations during which it was advised by counsel; (2) the basis for the alleged mistake was that, at the time of the stipulation, it was wrongly assumed that certain funds were being kept in a bank in accordance with a court order; (3) in fact, the funds had been withdrawn and spent in violation of the court order by an officer of the party seeking relief from the judgment; (4) the officer was the party's chief agent for the safekeeping and disposition of the funds, and a participant in the negotiations leading up to the stipulation; (5) the funds had been spent on expenses of the party seeking relief; and (6) in support of its motion for relief, the party submitted an affidavit from a current officer stating that his predecessor had misunderstood the stipulation, but submitted neither an affidavit from the previous officer nor an explanation of why it could not present one. T.C.R.C.P. Rule 60(b). Bank of Hawaii v. Congregational Christian Church, 9 A.S.R.2d 100.

Although deadlines for filing motions for new trial and appeal are set by the legislature and court is not free to overlook or extend them, a party may file a motion for relief from judgment after the statutory deadline for filing a motion for new trial. A.S.C.A. § 43.0802(a),(b); T.C.R.C.P. Rule 60(b). Gi v. Temu (Mem.), 12 A.S.R.2d 33.

To prevail on a motion for relief from judgment, a party must show not only that the judgment was wrong but also that he has some compelling justification for not having called the mistake to the court's attention within the ten days provided for filing a motion for new trial. A.S.C.A. § 43.0802(a),(b); T.C.R.C.P. Rule 60(b). Gi v. Temu (Mem.), 12 A.S.R.2d 33.

Depending on the circumstances, parties' receipt of notice of judgment from their attorney after expiration of the statutory time limit for filing a motion for reconsideration or new trial might support a motion for relief from the judgment. A.S.C.A. § 43.0802(a),(b); T.C.R.C.P. Rule 60(b). Gi v. Temu (Mem.), 12 A.S.R.2d 33.

A motion for relief from judgment cannot be used as a substitute for appeal by one who had a fair chance to appeal and chose not to do so. T.C.R.C.P. Rule 60(b). Gi v. Temu (Mem.), 12 A.S.R.2d 62.

Rule of civil procedure empowering court to relieve a party from a final judgment uses the word "may" and is subject to the court's sound discretion. T.C.R.C.P. Rule 60(b). Taulaga v. Patea, 12 A.S.R.2d 64.

Motions under the first three sections of rule allowing relief from final judgment must be made no more than one year after entry of judgment. T.C.R.C.P. Rule 60(b). Taulaga v. Patea, 12 A.S.R.2d 64.

Sections of rule allowing relief from judgment for specific reasons such as mistake or newly discovered evidence on the one hand, and catch-all provision encompassing "any other reason justifying relief" on the other, are mutually exclusive so that resort to the latter may not be had to escape time limits applicable to motions grounded on the former. T.C.R.C.P. Rule 60(b)(1)-(3), 60(b)(6). Taulaga v. Patea, 12 A.S.R.2d 64.

Where judgment adjudicating title to land had been final for twenty-three years, discretion would be exercised in favor of finality and an end to the needless protraction of litigation; after twenty-three years of settled expectations the equities were against the reopening of judgment. T.C.R.C.P. Rule 60(b). Taulaga v. Patea, 12 A.S.R.2d 64.

Where trial court denied a motion for relief from judgment while an appeal from the underlying judgment was pending, appellate court could hear an appeal from the denial of relief from judgment, either because: (1) the trial court was not deprived of jurisdiction by the filing of the notice of appeal, so that the appeal from its order denying relief from judgment would be in order; or (2) the trial court lacked jurisdiction after notice of appeal from the judgment, but the appellate court could treat the notice of appeal from the denial of relief from judgment as a motion for a limited remand to the trial court to permit it to consider the motion. T.C.R.C.P. Rule 60(b). Uiagalelei v. Fai`ai, 12 A.S.R.2d 103.

A party may be relieved from judgment on the ground of newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial. T.C.R.C.P. Rule 60(b). Uiagalelei v. Fai`ai, 12 A.S.R.2d 103.

That counsel had not found two reported cases prior to trial, because their captions did not refer to the land involved in the litigation, was insufficient reason not to have discovered evidence consisting of certain statements made at the hearing of these cases; more thorough research could have unearthed the cases before trial, and in any event the evidence disclosed by the cases could have been obtained through normal pretrial discovery. T.C.R.C.P. Rule 60(b). Uiagalelei v. Fai`ai, 12 A.S.R.2d 103.

Relief from an order of dismissal may be granted where a prior judgment upon which the order is based has been amended rather than reversed or vacated if the amendment completely removes the premise on which the order was based. T.C.R.C.P. 60(b)(5). Patau v. Rosendahl Corp., 14 A.S.R.2d 79.

Trial Court Rule providing that a court may relieve a party from an order for any reason justifying relief from the operation of the judgment applies where the prior judgment upon which the order is based is amended to completely remove the premise on which the order was based, when to do so would cause defendant no genuine hardship but to do otherwise would deny plaintiff any access to the courts. T.C.R.C.P. 60(b)(6). Patau v. Rosendahl Corp., 14 A.S.R.2d 79.

Relief from a judgment under Rule 60(b) of the Trial Court Rules of Civil Procedure is not available to a party who could have raised the same claims or defenses by motion for new trial but did not. In re Matai Title Muagututi`a, 15 A.S.R.2d 1.

Relief from final judgments may be granted under certain extraordinary circumstances. T.C.R.C.P. 60(b). Saufo`i v. American Samoa Government, 16 A.S.R.2d 71.

A final decision in a case in which the Court had jurisdiction over the subject matter and the parties, and in which the parties had a fair opportunity to address the issues, has