Aflague v. Moylan

Opinion

supuRT

722JM12l

RoFrI

IN THE SuPERIoR CouRT OF Gu 4 RAYj. AFLAGUE, ) CiviL CAsE No. CV0570-1O 6 vs. ) DECISION AND ORDER 7 RICHARD D. MOYLAN, as Administrator for) SuA Sro the Estate ofJane D. Aflague Movhm, et al ) DisMissiNG Cs 8 ) WITHOUT PREJUDICE 9 Defendants. ) 10 r• INTRODUCTION 11 This matter is before the Court following remand by the Supreme Court of Guam in the 12 apl)eal ot the jucigmetit in this case. See, Allague r. ilvloi’Jan et al, 2t)20 Guam 18 (September 28, 13

14 202t)). On October 21, 2021, following a hearing before this Court on April 11, 2021, the Court

is ordered that Plaintiff Ray j. Aflague, represented by Attorney F. Randall Cunliffe, join

16 in(lispensat)le parties Guam Ancestral Lands Commission (GALC) and Department of Land 17 Mangement, Government of Guam (DLM) by the deadline of 30 (lays from October 21, 2022, 18 which woul(1 lapse on November 21, 2021. Order (Oct. 21, 2021). The parties were also ordered 19

20 to appear before it on january 19, 2022, for a Scheduling Conference. Id. Defendant Richard D.

21 Movhm, As Administrator for the Estate of Jane D. Allague Movlan, is represented by Attorney

22 Gary ‘4V.f. Gumataotao. Attorney Michael Berman represents several other named Defendants.

In its Order, the Court warned Plaintiff that failtire to join the indispensable parties would

result in the dismissal without prejudice of this case by the clerk without further or(ler. Id Plaintiff 25

26 has failed to join GALC and DLM within the time provided un(ler the Court’s Order. Moreover,

Aflague v. Moylan et. a!., CVOS7O-lO Order Dismissing C’ase Sua Sponte Page 1 of9 . other than addressing matters Jertainmg to the assignment of this matter to a qualified judge, the

2 Plaintiff has failed to take any substantive action following remand.

Because the Plaintiff has failed to join necessary and indispensable parties or file any other 4 request or pleading advancing his interest in this case since the issuance of this Court’s October 5 22, 2021 Order, the Court vacated the January 19, 2021 Scheduling Conference and now issues 6

this Order sua sponte dismissing this case without prejudice pursuant to Rule 41(b) of the Guam

8 Rules of Civil Procedure for the reasons set ftrth herein. 9 II. DISCUSSION 10

11 The decision of whether to dismiss an action for failure to I)tosecute generally ties within 12 the sound discretion of the Court and the Court’s decision will not be disturbed absent a “clear 13 abuse ol discretion.” tinited Pacific Islande;:c’ Coip. v. Ciiied, Ltd., 2017 Guam 6; Santos i 14 Gamei; 1997 Guam 4 at ¶11 (Guam 1997)(citing to Limi r. (7thi Heung Intern., Inc., 852 F.2d

16 1221 (9th Cir. 1988)); GRCP 11(b). The Guam Supreme Court in Santos i Garnei’recognized

17 that the thaI courts “may consider prevailing local conditions in administering their (lockets,” 18 sutject to ensuring that trial courts do not abuse their discretion by utilizing a procedural nile . .

19 (here, dismissal for failure to prosecute) in doing so. Santos, 1997 Guam 1 (Guam 1997). See 20 also, United Pacific iclanders’ Coip. at ¶ 25 (“We give deference to the trial court in determining 21 22 the reasonableness of a delay ‘because it is in the best position to determine what I)eriOd of delay

23 can be endured before its docket becomes unmanageable.”)(quoting Santos, 1997 Guam 4 ¶ 5 24 ((luoting In re Eisen, 31 f.3d at 1451)). As the Supreme Court recognized in Santos, involuntary 25 dismissal for failure to prosecute is “a proper docket management tool and that dismissal may be 26 proPer in certain situations.” Id. at ¶ 4. 27 28

Ajiagne v. Movlan et. at., CV0570-]O Order Dismissing case Sua Sponte Page2 of9 While deference is given to tnal courts to employ Rule 41(b) as a (locket management 1

2 tool, trial courts must consider the following factors in clecithng whether dismissal of an action

3 under this rule is an a))ropnate sanction: (1) the public’s interest in expeditious resolution of

litigation; (2) the court’s need to manage its (locket; (3) the risk of pfjU(1ice to the defendants; (4) 5 the ;)ut)hc policy favoring the (lisposition of cases on their merits; and (5) the availability of less 6 drastic sanctions. Uniteui Pacific Lclaiiclers’ Coip., 2017 Guam 6 (citing Santos at ¶ 5). If at least

8 four factors favor dismissal, or three factors “strongly” support dismissal, then dismissal is

9 appropriate. 1(1. (citing Park v. KaisIthna, 20 It) Guam it) ¶ 10). 10 It is important to note that the 1e51)OHSihilitV of tirging the acjuc1ication of a matter falls Ii

12 pnmarily upon a plaintitL Indeed, the Guam Supreme Court confirmed that it has “ahvavs

13 recognized that it is I)rimaril’ a plaintill’s responsibility to push a matter towards a(ju(lication.”

14 United Pacific ikuiderc’ Coip. at ¶ 26 (citing tT4ui1 i Rejs, 1998 Guam 1 ¶ 23; Guam Leon.

Dei Auth., 2013 Guam 12 ¶ 18 (citations omitted); In i Quitugiia t f1ois, 2001 Guam 19 ¶

19)). Although the Court has considered this dismissal sua sponte, it shall outline the reasons for 17

18 the appropriateness of this sanction under the circumstances.

19 1. The public’s interest in expeditious resolution of litigation and the court’s need to 20 manage its docket , The public’s interest in expeditious resolution of litigation and the court’s need to manage

22 its (locket are factors which are often considered together. bmted Pacific Is1ander at ¶ 27; Park at

23 ¶ 13. This case was remanded back to the trial court in 2020, after the Supreme Court VOi(le(l a 24 (Iced issued by the Guam Ancestral Lands Commission (GALC) to the Plaintiff for lack of due 25 irocess and further ruled that the failure of the trial court to order a joinder of necessary parties 26

the Department of Land Mangament, Government of Guam (DLM), and the GALC was an 27 28

Aflagtte v. Movian et. a!., CV0570-]O Order Dismissing case Sua Sponte Page 3 of9 abuse of discretion. AfJague ic Movian et aL, 2020 Guam 18 ¶l 12 - 20. The Supreme Court

2 further rnandate(l that the trial court resolve the competing claims of quiet title, which requires a

3 new’ trial of the matters which had been l)ufl)orte(llY aclju(hcated by the prior court. 1(1. 4 The chronology of events in this case following remand is pertinent to this Court’s 5 (lecision to chsrmss pursuait to Rule 41(b): The Supreme Court issued its Opinion reversing the 6

7 judgment of the trial court in September 28, 2020, followed by its judgment (Sept. 2020) and

8 Mandate (Oct. 2020), remanding this case back to the Superior Court to order the joinder of the

GALC and DLM as necessary and indispensable pailes and to “exercise its original jurisdiction 10 over a collateral attack and determine the validity of the deed based upon whether notice was 11

12 providledl the Superior Court finds the collateral attack meritorious, then it must address

13 the underlying dee(l from Fred to Ray.” 1(1. at ¶I 23 — 21. Following remand in 2020, this matter

14 was assigned to the Honorable judge Dana A. Gutierrez after the retirement of the Honorable 15 Michael j. Borclallo, who previousi l)reSidled over this matter and who presided over the bench

trial and issued the judgment which was ultimately reversed on appeal. However, due to the 17

18 disqualification of judge Gutierrez, on November 20, 2020, this Court was assigned the matter

19 and, following notice of potential disqualifications and waivers by the parties allowing this Court to

20 preside over this case, this Court held a status hearing on April 14, 2021. 21 During the April 2021 status hearing before this Court, counsel for Defendant Estate of 22

23 jane Aflague argued that the Opinion of the Guam Supreme Court clearly mandated that GALC

24 and DUvI be joined as indispensable parties, while counsel for the Plaintiff argued that the joinder 25 should not be the Plaintiff’s obligation. Status Jh on April bit, 2021 at 2:59:21 PM to 3:t)7:39 26 PM. The Court indicated that it would issue an Order following the hearing setting forth the 27

Aflague v. Movian et. al., CV0570-1O Order Dismissing Case Sua Sponte Page4of9 procedure for joining the indispensable parties and setting the matter for a subsequent hearing.

2 On October 22, 2021, this Court issued its Order forjoinder of the Ancestial Lands Commission

3 and the Department ofLand Management Purcuant to Mandate of the Supiinie Court of Guam

(Oct. 22, 2021). In its Order, the Court mandated the following: 5

6 jTlhe Court ORDERS that the Guam Ancestral Lands Commission awl the Department of Land Management be joined in this action as a party plaintiff, or if 7 they refuse to be jomed as such plamtif 1, as an involuntary plaintiff or defendant; IT IS FURTHER ORDERED that such joinder be effected by PLAINTIFF 1w $ appropriate process within THIRTY DAYS after the (late of this Order; and that if GALC and DLM cannot be joined within such time provlde(l in this Order this action shall, without further order, be dismissed y the clerk without prejudice. 10

11 Id. (emphasis added). The thirty (30) day deadline lapsed on November21, 2021. 12 In anticipation of the joinder l)eing ellectiiated by the Plaintiff within the time set forth in 13

its Order, the Court set a Scheduling Conference for january 19, 2022, as mandated umler CVR 14 i5 16.1. However, by January 19, 2022, the Plaintiff had still failed to join the GALC and DLM as

16 Ordered 1w filing an Amended Complaint to add them as parties to the litigation or by other

means of compelling their appearance, nor (11(1 it file any motion to extend the court-ordered

deacilme or provide good cause for non-compliance with the Oi’cler. 19

20 By virtue of the Supreme Court Opinion of 2020 awl this Court’s Order in October, 21 2t)2 1, the Plaintiff had more than adequate notice that, contrary to its Opposition to the 22 Del enclants’ motion to join necessary parties that “IGALC and DLMI’s absence oloes not prevent 23 the court from making a quiet title decision,” (Opp. at p. 3)(Feb. 17, 2015), the trial court cannot

25 go forward with the determination to quiet title without them; and, Plaintiff must, therelbre, join

26 these parties by November 21, 2021. At no time (luring the 90 clays from the issuance of this 27 Court’s October 2021 Order and the January 19, 2022 Scheduling Conference, did the Plaintiff 28

Ajiague v. Movian et. a!., CV0570-1O Order Dismissing Case Stta Sponte PageS of9 . . request an extension of time or file any pleading justifying any further delay.’ As previoisly

2 discussed, the Plaintiff had notice since September 2020 that in order to adjudicate his quiet title

3 claims, these parties must be joined. Despite such knowledge, and desl)ite the order requiring that

the Plaintiff join the parties by November 21, 2t)2 1, the Plaintiff simply ftllec1 to prosecute his 5 claim. Such delay is unreasonable under the circumstances. 6

7 Further, in considering “prevailing local conditions in administering titsi docket”, since

8 being assigned this case in late 2020, the Court now presides over and is exclusively assigne(l

criminal cases pursuant to Guam Supreme Court Administrative Rule 20—001(11). This Rule 10 created four criminal courts, including the undersigned, and three non—criminal courts. Based on 11

12 this assignment, the Court is compelled to prioritize assertc(l criminal cases while still closing out

13 its pre\)t1sly assigne(l non—criminal cases within the case age time standards set forth in

14 Administrative Rule No. 13—003, including the instant matter. In its effort to adjudicate this case,

the Court set aside a (late certain since October 21, 2021, for ilJ of the I)arties to come before it

frr a Scheduling Conference pursuant to CVR 16.1. As set forth under CVR 16.1, the PlaintilL in 17

18 particular, is chwged with initiating any communication necessary to iieiare the Scheduling

19 Order awl 1)iscoverv Plan as well as to submit it prior to the Scheduling Conference, which was

20 scheduled within the 90 clays pro’ic1ed under CVR 16.1(c). No delay can l)e attributed to the 21 Court nor to the Defendants in this instance and the court has a compelling need to manage its ‘3

(locket. ‘nder the circumstances, these tiw Santos factors weigh in favor of dismissal. 23

26 Compare, Park at ¶ 19 where Park claimed an “offset defense” which was rejected because he failed to providc inform the court of any settlement discussions or to seek a stay of the proceedings or any other potential excuses foi 27 failure to prosecute his claims. Similarly, the Court’s October 2021 Order has only been met with silence from thc Plaintiff. 28

Aflague v. Movian et. at., CVOS7O-1O Order Dismissing Case Sua Sponte Page 6 of 9 2. The risk of prejudice to the defendants.

2 Once a delay is determmed to be unreasonable, I)r]uclice to the Defendant is presumed.

United Pacific islanders at ¶ 30. However, this I)resurnl)llon is rebuttable. Id. Although the delay 4 between October 21, 2021 and November 21, 2021, and even between October 21, 2021 and 5 January 19, 2022 is not a protracted period of time, in the context of this lawsuit, which was 6

7 commenced in 2010 and in which at least one Defendant has since passed away, leaving her estate

8 to defend against the claims, and the Plaintiff not having proffered any reason on the recor(1

excusing his delay in joining GALC and DLM, the Court finds that Plaintifi’s delay has resulted in 10 prejudice to the Defendants.2 This factor weighs in favor of dismissal. 11

12 3. The public policy favoring the disposition of cases on their merits. 13 The next consideration under Santos is the public pohcv favoring the disposition of cases 14 on their merits. Although “pubhc policy favors the disposition of cases on their merits and

16 disfavors the dismissal o cases prematurely,” Lufrmn i’. McGreadie, 2014 Guam 19 ¶ 21 (citing

17 Santos, 1997 Guam 4 ¶ 9), the question l)efore this Court is “whether the policy of determining 18 cases on their merits justifies the delay and I)1’]ud1ice caused by Ithe partv’sJ actions.” United 19 Pacific ickwderc’ C’oip. at ¶ 32 (quoting Park, 2010 Guam 10 ¶ 22). The Court finds no 20 justification for the Plaintiff’s delay.’ Moreover, a new trial of the case is what the Guam Supreme ,

23 See also, Park at ¶ 21 (“[W]e have stated that presumed prejudice is sufficient to support a Rule 41(b) dismissal.”) 24 The pendency of the assignment of a judge to preside over the matter following Judge Bordallo’s departure is also no reason to have delayed the joinder of the GACL and DLM. The Opinion ordered that the Superior Court join the 25 indispensable parties, which is interpreted to mean that the trial court would require the Plaintiff to haul them into court to answer to his claims relating to the property vis a vis an Amended Complaint naming them as parties. But, 26 under the circumstances, no order ought to have been necessary to compel the Plaintiff to act in his interest, excepi that during the April 14, 2021, hearing before this Court, Plaintiffs counsel declared that he did not believe that 27 joinder was the Plaintiffs obligation. On the contrary, as the Supreme Court found, “[WJe find no abuse ol discretion in the Superior Court’s determination that [Plaintiffi Ray’s interests cannot, be fully adjudicated or 28

Afiague v. Moylan et. al., CV0570-]O Order Dismissing case Sna Sponte Page 7 of9 Court ruled in its Opinion, and this Court has not I)een asked to make any substantive rulings by

2 any of the parties in tins case, which essentially begins with a “clean slate.” Thus, this matter would

3 be disposed of on the merits of the parties’ claims if the Plaintiff’ desires to refile the Complaint

against all necessary and indispensable parties. This factor weighs in favor of dismissal without 5 pre}u(hce. 6

7 4. The availability of less drastic sanctions. 8 “The trial court is not requireti to impose lesser sanctions, when the rules (10 not so 9 prode, and when to (10 SO would encourage neglect and noncompliance with the Guam Rules of 10

Civil Procedure.” 5intos, 1997 Guam 4 ¶ it). The trial court is not required to give a warning of

12 possible dismissal. 1(1. “A trial court is not required to examine even’ single alternate remedy in 13 deciding if Ethel sanction of dismissal is appropriate.” Park, 2010 Guam it) ¶1 24 (citation omitted). 14 But courts should engage in a “reasonable exploration of f)osslble anti meamnglul alternatives.”

Id. (quoting Anderson r West, Inc., 542 f.2d 522, 525 (9th Cir. 1976)).

17 In this instance, the Court provided a warning in its October 2021 Order compelling the

jomcler of GALC and DLM that the failure to join these parties within the time procled woulti 19 result in a dismissal without prejudice. Ninety (90) days had lapsed with no response from the 20 Plaintiff to the Order. The Court is not require(l to do more than it already has in this case, for it 21

23 protected absent GALC and DLM. And in finding the GALC deed to Ray potentially void, Ray may be exposed t 24 other consequences of improper actions of GALC and DLM.” Moylan at ¶ 20 (emphasis added). Furthermore, th Supreme Court emphasized that failure to bring GALC and DLM into the litigation could have dire consequences oi 25 the Plaintiff’s claim to title: “For example, if Moylan prevails here, GALC may treat its prior, albeit void, action t Ray as extinguishing any and all of Ray’s ancestral claims and forever barring Ray from reentry into the Claim 26 Registry, see, e.g., 21 GCA § 801 04(c)(Step 4), while the lawsuit ultimately finds that GALC never validly gay Ray any interest in ancestral property.” Id. at fn. 6. Given the significant loss to Plaintiffs claims if it did not brin 27 GALC into the lawsuit, the obligation clearly falls upon the Plaintiff to join them as indispensable parties. He couli have, and should have, done so regardless of which judge was ultimately assigned to this case. 28

Aflague v. Movian et. at., CV0570-1O Order Dismissing Case Situ Sponte Page 8 of 9 . is the obligation of the Plaintiff to pursue its claims against parties whom he has summoned and to

2 summon those parties without whom his claims cannot be adjudicated. Under these

3 circumstances, this factor justifies dismissal. 4 IlL CONCLUSION 5

6 Although the Court recognizes that dismissal is a harsh penalty, the Court gave a

preemptive warning to the Plaintiff of dismissal if GALC and DLM were not timely joined. 8 Additionally, the Guam Supreme Court raised comj)ellmg scenarios resulting in severe 9 consequences for the Plaintiff if GALC awl DLI were not JOme(l as l)Irties to this lawsuit. 10 Following the expiration of the 3() day deadlme and an additional 6() days thereafter, the Court,

12 not having received any request from the Plaintiff to extend the deadline or providing an’ 13 justification for his delay vacatefI the Scheduling Conference set in compliance with CVR 16.1 14 and considered all factors prior to reaclung this decision to dismiss this case without prjudice.

The Plaintiff ha’ing fled to timely join the parties and to proide any reasonable basis fbr such

17 delay, and for the additional reasons set forth herein, the Court ORDERS this matter DIMISSED

18 WITHOUT PREJUDICE pursuant to GRCP Rule 41(b). 19 So ORDERED this 21 day of.Januarv, 2022.

I aciaioWledge that:än elecfronlc I -- c9oçof the otiginai wase-mailed to: HoNRxi MARIA T. CENZON 23 jUDGE, SUPERIOR CoURT OF GUAM 6 t’)

24 Date: lime:______ 25 Joseph Bamba, Jr. Dep*yt1e1k.SuperCowtatGn 26 “See Park at ¶25 (“Although dismissal is a harsh penalty, the court weighed the necessary factors before dismissin 27 the action and application of these factors support dismissal. Therefore, the court did not abuse its discretion ir dismissing the action under Rule 41(b)). 28

Aflague v. Mo v/an et. a!., CVOS7O-1O Order Dismissing Case Sua Sponte Page 9 of 9