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4 IN THE SUPERIOR COURT OF GUAM 5
6 GUAM ECONOMIC DEVELOPMENT AND) CIVIL CASE NO. CV0841-01 COMMERCE AUTHORITY, ) 7 ) ) Plaintiff, DECISION AND ORDER 8 ) 9 v. ) ) 10 AFFORDABLE HOME BUILDERS, INC., ) 11 dba GUAM CONCRETE BUILDERS, INC., ) A Guam Corporation, AND THOMAS V. C. ) Husband And Wife, ) 13 ) 14 Defendants. )
16 INTRODUCTION
17 This matter came before the Honorable Arthur R. Barcinas on the 24th day of June,
18 2011, for hearing on Defendants' motion to dismiss made pursuant to Rule 41(b). Attorney John 19 C. Terlaje represented the Plaintiff, and Attorney Peter F. Perez represented the Defendants. 20 The Court now issues the following Decision and Order on the matter presented. 21
23 This case was filed on May 17, 2001. The case was originally assigned to Judge 24 Manibusan and remained on his docket until his retirement, when it was assigned to Judge 25 Barcinas in January of 2005. During its pendency, this case has been set for trial and 26 subsequently rescheduled on at least ten occasions. Many of these trial dates were rescheduled 27
28 at the request of the Defendants. However, the Plaintiff has also stipulated to reschedule some Decision and Order Civil Case No. CV0841-01
of these dates as well. As it currently stands, the most recent trial date was scheduled to occur
2 in February of2008, but was removed from the trial calendar. As of February of2008, Plaintiff
3 has not since requested that this matter be scheduled for trial, nor filed any motions, dispositive 4 or otherwise, which would move this case forward. 5 On May 6, 2010, after a period of nearly three years without any filings or activity on 6 the part of the Plaintiff, the Court issued a Notice of Pending Dismissal for Lack of Prosecution, 7
8 ordering the Plaintiff to show good cause in writing, five days prior to July 23, 2010, or the
9 Court would dismiss the case on the basis of GRCP Rule 41, and the Court's inherent authority 10 to control its docket and the advancement of cases. See GRCP Rule 78 (2011); and 7 GCA § 11 7107 (2011). The Plaintiff did not file any written statement of good cause on or before July 23, 12
13 2010.
14 Subsequently, on October 11, 2010, the Plaintiff filed an "Objection to Dissmissal(sic)
15 of Lack of Prosecution and Memorandum of Points and Authorities," through its new counsel, 16 John Terlaje, Esq., arguing that dismissal was not warranted under GRCP Rule 41. The 17 Defendants filed adjoining memoranda "in Support of the Court's Motion to Dismiss for Failure 18
19 to Prosecute and in Opposition to Plaintiffs Reply," supplying the Court with arguments in
20 support of the Court's original Notice of Pending Dismissal for Lack of Prosecution. 21 DISCUSSION 22 A) Rule 78 and the Time Rule 23 Rule 78 of the Guam Rules of Civil Procedure states, "the judge at any time or place and 24
25 on such notice, if any, as the judge considers reasonable may make orders for the advancement,
26 conduct, and hearing of actions." GRCP Rule 78 (2011). In this case, after a delay of nearly 27 three years, the Court issued an order to the Plaintiff, instructing the Plaintiff to show good 28
Page 2 01'8 Decision and Order Civil Case No. CV0841-01
cause that this case should not be dismissed, yet the Plaintiff took no action in the case between
2 the time of the Court's order on May 6,2010, and October 11,2010, a period of approximately
3 one and one half years. Moreover, the Plaintiffs last filing before the Plaintiff filed its 4 opposition to dismissal on October 11, 2010, was made on March 14, 2007. The intervening 5 time period wherein the Plaintiff presented no new filings to the Court lasted approximately 6 three and one half years. Most significantly, since objecting to dismissal for failure to prosecute 7
8 on October 11, 2010, the Plaintiff has presented no new filings, and has made no attempt to
9 schedule this matter for trial. This total period of inaction by the Plaintiff spans more than five 10 years. II The Court finds that the resolution of this case has been unduly delayed, and the Court is 12
13 mindful of the time limits set forth by the Supreme Court of Guam Administrative Rule 06-001,
14 known as the "time rule," urging that all civil cases be concluded within eighteen months of the
15 date filed. Supreme Court of Guam Administrative Rule 06-001, Regarding Case Management 16 & Disposition Within the Superior Court of Guam Pursuant to Public Law 28 137: 1, pA. This 17 case has been on the docket of the Superior Court of Guam for approximately 144 months, or 18
19 twelve years, which is more than eight times as long as the desired limit on such cases. This
20 delay is based in part on the fact that the Plaintiff has been sitting idle for more than five years, 21 despite the orders of the Court informing the Plaintiff that further delay and inaction would 22 result in dismissal. This delay, including the delay attributable to the Plaintiff since the Plaintiff 23 argued that the most of this delay is attributable to the Defendants in June of 2011, is 24
25 unacceptable. Based on the Court's authority to make orders for the swift resolution of cases
26 under GRCP Rules 1 and 78, and the Time Rule, the Court finds that dismissal of this case is 27 warranted. 28
Page 3 of8 Decision and Order Civil Case No. CV0841-01
B) Rule 41 Dismissal
2 To determine whether dismissal is appropriate under GRCP Rule 41(b), the Supreme
3 Court of Guam has employed a five-factor test: "(1) the public's interest in expeditious 4 resolution oflitigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the 5 defendants; (4) the public policy favoring the disposition of cases on their merits; and (5) the 6
7 availability ofless drastic sanctions." Park v. Kawashim~ 2010 Guam 10 ~ 10 (quoting Santos
8 v. Carney, 1997 Guam 4 ~ 5); accord Petition of Quitugua v. Flores, 2004 Guam 19 ~ 16; Estate
9 of Concepcion, 2003 Guam 12 ~ 15; and GHURA v. Dongbu Insurance Co., Ltd., 2002 Guam 3 10 ~ 15. Despite the unopposed status of the motion, the Court has an obligation to determine II issues on their merits, Mano v. Mano, 2005 Guam 2 ~ 17; and Quitugua v. Flores, 2004 Guam 12
13 19 ~ 28, and thus, the Court will conduct an analysis of the five factors to determine whether
14 dismissal is appropriate under GRCP Rule 41 (b). 15 As noted by the Supreme Court of Guam, "[t]he Guam Rules of Civil Procedure do not 16 define what is a "failure to prosecute" sufficient to warrant dismissal." Santos, 1997 Guam 4 at 17 ~ 5. However, the harsh sanction of dismissal for failure to prosecute under Rule 41(b) typically 18
19 arises in cases where there has been either a pattern of delay or consistent disobedience of the
20 orders of the court. In deciding whether to dismiss a case for failure to prosecute, the trial court 21 must find the existence of at least one of these factors, and then consider the particular 22 circumstances of the case, including the frequency and magnitude of the plaintiffs failure to 23 comply with court deadlines and the degree of any resulting delay or prejudice to the 24
25 defendants. Id., at ~~ 4-5, and 11.
26 Under Rule 41 (b), the initial burden is on the Plaintiff to show that the delay is 27 reasonable and that the defendant is not prejudiced by the delay. In re Estate of Concepcion, 28
Page 4 of8 Decision and Order Civil Case No. CV0841-01
2003 Guam 12 ~ 15 (citing Santos, 1997 Guam 4 ~ 5). "[O]nce a delay is determined to be
2 unreasonable, prejudice .. .is presumed." Park v. Kawashima, 2010 Guam 10 ~ 21 (quoting
3 Santos, 1997 Guam 4 ~ 8).
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. I
Y 29 2: 53 2 , "vUUI~ ,\' , T 3 , If.
4 IN THE SUPERIOR COURT OF GUAM 5
6 GUAM ECONOMIC DEVELOPMENT AND) CIVIL CASE NO. CV0841-01 COMMERCE AUTHORITY, ) 7 ) ) Plaintiff, DECISION AND ORDER 8 ) 9 v. ) ) 10 AFFORDABLE HOME BUILDERS, INC., ) 11 dba GUAM CONCRETE BUILDERS, INC., ) A Guam Corporation, AND THOMAS V. C. ) Husband And Wife, ) 13 ) 14 Defendants. )
16 INTRODUCTION
17 This matter came before the Honorable Arthur R. Barcinas on the 24th day of June,
18 2011, for hearing on Defendants' motion to dismiss made pursuant to Rule 41(b). Attorney John 19 C. Terlaje represented the Plaintiff, and Attorney Peter F. Perez represented the Defendants. 20 The Court now issues the following Decision and Order on the matter presented. 21
23 This case was filed on May 17, 2001. The case was originally assigned to Judge 24 Manibusan and remained on his docket until his retirement, when it was assigned to Judge 25 Barcinas in January of 2005. During its pendency, this case has been set for trial and 26 subsequently rescheduled on at least ten occasions. Many of these trial dates were rescheduled 27
28 at the request of the Defendants. However, the Plaintiff has also stipulated to reschedule some Decision and Order Civil Case No. CV0841-01
of these dates as well. As it currently stands, the most recent trial date was scheduled to occur
2 in February of2008, but was removed from the trial calendar. As of February of2008, Plaintiff
3 has not since requested that this matter be scheduled for trial, nor filed any motions, dispositive 4 or otherwise, which would move this case forward. 5 On May 6, 2010, after a period of nearly three years without any filings or activity on 6 the part of the Plaintiff, the Court issued a Notice of Pending Dismissal for Lack of Prosecution, 7
8 ordering the Plaintiff to show good cause in writing, five days prior to July 23, 2010, or the
9 Court would dismiss the case on the basis of GRCP Rule 41, and the Court's inherent authority 10 to control its docket and the advancement of cases. See GRCP Rule 78 (2011); and 7 GCA § 11 7107 (2011). The Plaintiff did not file any written statement of good cause on or before July 23, 12
13 2010.
14 Subsequently, on October 11, 2010, the Plaintiff filed an "Objection to Dissmissal(sic)
15 of Lack of Prosecution and Memorandum of Points and Authorities," through its new counsel, 16 John Terlaje, Esq., arguing that dismissal was not warranted under GRCP Rule 41. The 17 Defendants filed adjoining memoranda "in Support of the Court's Motion to Dismiss for Failure 18
19 to Prosecute and in Opposition to Plaintiffs Reply," supplying the Court with arguments in
20 support of the Court's original Notice of Pending Dismissal for Lack of Prosecution. 21 DISCUSSION 22 A) Rule 78 and the Time Rule 23 Rule 78 of the Guam Rules of Civil Procedure states, "the judge at any time or place and 24
25 on such notice, if any, as the judge considers reasonable may make orders for the advancement,
26 conduct, and hearing of actions." GRCP Rule 78 (2011). In this case, after a delay of nearly 27 three years, the Court issued an order to the Plaintiff, instructing the Plaintiff to show good 28
Page 2 01'8 Decision and Order Civil Case No. CV0841-01
cause that this case should not be dismissed, yet the Plaintiff took no action in the case between
2 the time of the Court's order on May 6,2010, and October 11,2010, a period of approximately
3 one and one half years. Moreover, the Plaintiffs last filing before the Plaintiff filed its 4 opposition to dismissal on October 11, 2010, was made on March 14, 2007. The intervening 5 time period wherein the Plaintiff presented no new filings to the Court lasted approximately 6 three and one half years. Most significantly, since objecting to dismissal for failure to prosecute 7
8 on October 11, 2010, the Plaintiff has presented no new filings, and has made no attempt to
9 schedule this matter for trial. This total period of inaction by the Plaintiff spans more than five 10 years. II The Court finds that the resolution of this case has been unduly delayed, and the Court is 12
13 mindful of the time limits set forth by the Supreme Court of Guam Administrative Rule 06-001,
14 known as the "time rule," urging that all civil cases be concluded within eighteen months of the
15 date filed. Supreme Court of Guam Administrative Rule 06-001, Regarding Case Management 16 & Disposition Within the Superior Court of Guam Pursuant to Public Law 28 137: 1, pA. This 17 case has been on the docket of the Superior Court of Guam for approximately 144 months, or 18
19 twelve years, which is more than eight times as long as the desired limit on such cases. This
20 delay is based in part on the fact that the Plaintiff has been sitting idle for more than five years, 21 despite the orders of the Court informing the Plaintiff that further delay and inaction would 22 result in dismissal. This delay, including the delay attributable to the Plaintiff since the Plaintiff 23 argued that the most of this delay is attributable to the Defendants in June of 2011, is 24
25 unacceptable. Based on the Court's authority to make orders for the swift resolution of cases
26 under GRCP Rules 1 and 78, and the Time Rule, the Court finds that dismissal of this case is 27 warranted. 28
Page 3 of8 Decision and Order Civil Case No. CV0841-01
B) Rule 41 Dismissal
2 To determine whether dismissal is appropriate under GRCP Rule 41(b), the Supreme
3 Court of Guam has employed a five-factor test: "(1) the public's interest in expeditious 4 resolution oflitigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the 5 defendants; (4) the public policy favoring the disposition of cases on their merits; and (5) the 6
7 availability ofless drastic sanctions." Park v. Kawashim~ 2010 Guam 10 ~ 10 (quoting Santos
8 v. Carney, 1997 Guam 4 ~ 5); accord Petition of Quitugua v. Flores, 2004 Guam 19 ~ 16; Estate
9 of Concepcion, 2003 Guam 12 ~ 15; and GHURA v. Dongbu Insurance Co., Ltd., 2002 Guam 3 10 ~ 15. Despite the unopposed status of the motion, the Court has an obligation to determine II issues on their merits, Mano v. Mano, 2005 Guam 2 ~ 17; and Quitugua v. Flores, 2004 Guam 12
13 19 ~ 28, and thus, the Court will conduct an analysis of the five factors to determine whether
14 dismissal is appropriate under GRCP Rule 41 (b). 15 As noted by the Supreme Court of Guam, "[t]he Guam Rules of Civil Procedure do not 16 define what is a "failure to prosecute" sufficient to warrant dismissal." Santos, 1997 Guam 4 at 17 ~ 5. However, the harsh sanction of dismissal for failure to prosecute under Rule 41(b) typically 18
19 arises in cases where there has been either a pattern of delay or consistent disobedience of the
20 orders of the court. In deciding whether to dismiss a case for failure to prosecute, the trial court 21 must find the existence of at least one of these factors, and then consider the particular 22 circumstances of the case, including the frequency and magnitude of the plaintiffs failure to 23 comply with court deadlines and the degree of any resulting delay or prejudice to the 24
25 defendants. Id., at ~~ 4-5, and 11.
26 Under Rule 41 (b), the initial burden is on the Plaintiff to show that the delay is 27 reasonable and that the defendant is not prejudiced by the delay. In re Estate of Concepcion, 28
Page 4 of8 Decision and Order Civil Case No. CV0841-01
2003 Guam 12 ~ 15 (citing Santos, 1997 Guam 4 ~ 5). "[O]nce a delay is determined to be
2 unreasonable, prejudice .. .is presumed." Park v. Kawashima, 2010 Guam 10 ~ 21 (quoting
3 Santos, 1997 Guam 4 ~ 8). However, if the Plaintiff is able to show that there is a reasonable 4 excuse for the inaction, the burden shifts to the defendant who must then demonstrate prejudice. 5 Id. 6 The first two factors of the test, the public's interest in expeditious litigation and the 7
8 Court's docket management, are ordinarily considered together. Santos, 1997 Guam 4 at ~ 7.
9 A review of the record in this case reveals that Plaintiff has failed to move this case forward in 10 its twelve year pendency, and there has been no activity on the part of the Plaintiff which could II be categorized as "prosecutorial" between 2008 and the present time. Plaintiff has taken no 12 action to pursue resolution of the claims in the complaint, and has submitted no filings designed 13
14 to pursue this case in the last year and a half. Since the Court issued its warning to the Plaintiff
15 of pending dismissal, approximately two years ago, the Plaintiff has filed no documents, 16 scheduling orders, discovery plans, or other requests for trial in the matter. 17 Civil Case No. CV0841-0 1 was filed in this Court approximately twelve (12) years ago, 18
19 and the record is silent regarding any affirmative actions Plaintiff has undertaken in the
20 prosecution of its claims since 2008. Since 2006, this Court has operated under a new time 21 standard urging that all civil matters be completed and closed within eighteen months of filing. 22 Supreme Court of Guam Administrative Rule 06-001, effective September 15,2006. This case 23 has exceeded the limitations of that standard, and perhaps most importantly, the Plaintiff has 24
25 indicated to the Court that the only reason urged for the delay in this case is the contemplation
26 of settlement. 27
Page 5 of8 Decision and Order Civil Case No. CV0841-01
Plaintiff argues that Defendant is partly responsible for the delay in resolution of this
2 matter because the Plaintiff has been engaged in settlement negotiations with the Defendants.
3 Plaintiff is, in essence, arguing that it has fulfilled its duty as a Plaintiff to prosecute its claims 4 in court by conducting negotiations. The Court disagrees. Even if the parties mutually engaged 5 in thorough settlement negotiations, the Court is not privy to such negotiations, the talks are not 6 made on the record, and they have very little effect on Plaintiffs burden to advance their claims 7
8 in court. Settlement negotiations, even when conducted in earnest, do not excuse plaintiffs from
9 pursuing their case diligently and do not constitute good cause for inordinate delay in bringing a 10 case to trial. Park v. Kawashima, 2010 Guam 10 ~~ 16-19. II Other than attorney withdrawals and stipulations to continue trial, few other filings have 12 been submitted by the Plaintiff since 2007. The Court can find no reason to prolong this case's 13
14 existence on its crowded docket. The delay of at least five years of inactivity in this case is
15 substantial and unjustified. Considering the public interest and the delay to the Court's calendar 16 and caseload, the Court finds that the failure to prosecute this case is unreasonable. Thus, the 17 first two considerations of Santos weigh in favor of dismissal. 18
19 Prejudice may be presumed as a result of unreasonable delay. Park v. Kawashima, 2010
20 Guam 10 ~ 21; and Santos, 1997 Guam 4 ~ 8; see also San Nicolas v. Guam United Trading 21 Servo & Fin. Co. Inc., Civil Case No. 94-00050A, 1995 WL 604373 at *3 (D.Guam 22 App.Div.1995). The Court finds that Defendant has been presumptively prejudiced by the 23 delay in this case. Advancement of Plaintiff s claims to resolution is within Plaintiff s control, 24
25 and the avoidance of prosecution of its claims to a resolution at trial is the reason that a final
26 resolution has not been reached. Thus, the third factor of Santos also weighs in favor of 27 dismissal. 28
Page 6 0[8 Decision and Order Civil Case No. CV0841-0 I
It is a well settled proposition of law that the Court favors disposition on the merits.
2 However, as held in Santos, the question is whether the policy favoring determination of cases
3 on their merits justifies the delay and prejudice caused by the Plaintiffs inaction. Santos, 1997 4 It is sufficient to Guam 4 ~ 9 (citing to In re Eisen, 31 F.3d 1447, 1454 (9th Cir. 1995)). 5 demonstrate that the plaintiff has "ignored his responsibilities to the court in prosecuting the 6 action and the defendant had suffered prejudice as a result thereof." Id. (quoting Anderson v. 7
8 Air West, Inc., 542 F.2d 522, 526 (9th Cir.1976)). The public policy of determining cases on
9 their merits should not be used defensively as a shield by a passive plaintiff who has failed in 10 his obligation to prosecute a defendant with the vigor expected of a plaintiff. Santos, 1997 II Guam 4 ~ 9. In this matter, the undisputed presumptive prejudice outweighs the Court's 12
13 preference for disposition on the merits.
14 Finally, the Court is empowered to issue warnings or impose lesser sanctions than
15 dismissal. Although this factor generally weighs in favor of the plaintiff where the trial court 16 has not previously imposed sanctions, it may weigh in favor of the defendant where the trial 17 court has previously issued such sanctions or warnings. Further, the availability of lesser 18
19 sanctions does not, in and of itself, preclude dismissal where warranted. "[T]he trial court is not
20 required to impose lesser sanctions, when the rules do not so provide, and when to do so would 21 encourage neglect and noncompliance with the Guam Rules of Civil Procedure." Id. at ~ 10; 22 see also LY!!!} v. Chin Heung Intern., 852 F.2d 1221, 1222 (9th Cir.1988) (affirming the 23 Superior Court of Guam's decision to dismiss a complaint pursuant to Rule 41 (b) despite the 24
25 absence of a warning or the consideration of lesser sanctions).
26 In this case, the Court has previously warned the Plaintiff, that dismissal was being 27 contemplated for the failure to prosecute this case. The Court has not imposed lesser sanctions, 28
Page 7 of8 Decision and Order Civil Case No. CV0841-01
but finds that the imposition of a lesser sanction than dismissal would not serve to encourage
2 more haste on the part of the Plaintiff, because it is plain that the Plaintiff has not heeded the
3 Court warning. 4 After consideration of the five factors, the Court finds that dismissal is warranted under 5 the circumstances presented. The Plaintiff has failed to meet the burden of establishing the 6 reasonableness of delay in prosecuting this case, and has failed to rebut the presumption of 7
8 prejudice arising from this delay.
10 After considering the matter, pursuant to GRCP Rules 41, and 78, the Court finds that 11 the Plaintiff has failed to diligently prosecute Civil Action No. CV0841-01, and that the delay in 12 this case is extensive and unjustified. Based upon the foregoing, CV0841-01 is DISMISSED. 13
16 IT IS SO ORDERED this _ _ _ _ _ _ _ _ __ 17
~~.~~.~~~.~--- 18
19 HONORABLE ARTHUR R. BARCINAS 20 Judge, Superior Court of Guam 21
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