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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.

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.

§ 1(2) Personal Jurisdiction

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.

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. Histake, 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 decided 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.

§ 1(4) Issues Related to Federal Jurisdiction

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.

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

SEE BANKRUPTCY

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

SEE ADMIRALTY § 1 – JURISDICTION AND PROCEDURE

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.

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 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.

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.

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.

§ 2 Notice

§ 2(1) General Provisions

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.

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.

§ 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.

§ 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.

§ 3 Pleading

§ 3(1) General Provisions

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.

§ 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.

§ 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.

§ 4 Dismissal of Actions

§ 4(1) General Provisions

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 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.

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.

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.

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.

§ 4(2) 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.

§ 4(3) 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.

§ 4(4) 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.

§ 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.

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.

§ 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.

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 124.

§ 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.

§ 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.

§ 6(2) Depositions

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.

§ 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.

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. Histake, 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.

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.

§ 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.

§ 7(3) Compared to 12(b)(6) Motion

SEE CIVIL PROCEDURE § 4(4) – COMPARED TO SUMMARY JUDGMENT MOTION

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.

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.

§ 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.

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.

§ 7(6) Within Court’s Discretion