. FILE)
?fH OV !O 7 2 SUPERIOR OURT 3 OFGILM 4
7 GUAM POWER, INC., a Guam Corporation, as ) Case No. CV1680-ll $ general partner on behalf of GUAM RESOURCE RECOVERY PARTNERS. a Delaware Limited Partnership, ) ) DECISION AND ORDER Plaintiff, ) ii ) v. ) 12 ) ) 3 GOVERNMENT OF GUAM and GUAM ) ECONOMIC DEVELOPMENT ) ‘ AUTHORITY, a public corporation,
‘5 Defendant. ) ) 16
18 This matter came before the Honorable Alberto C. Lamorena, III on August 26, 2019 19 upon Plaintiff’s Motion to Strike Appearance of the Office of the Attorney General (“Motion to 20
21 Strike”). Attorney Ignacio C. Aguigui represents Guam Power, Inc. (“GPI”) and Guam
22 Resource Recovery Partners (“GRRP”) (collectively, “Plaintiff’). Assistant Attorney General
23 David J. Highsmith represents the Government of Guam (“Government”) and Attorney Thomas 24 J. fisher and Attorney Rachel Taimanao-Ayuyu represent the Guam Economic Development 25 Authority (“GEDA”) (collectively, “Defendants”). Having duly considered the parties’ briefs, 26
27 oral arguments, and the applicable law, the Court now issues the following Decision and Order
28 and DENIES Plaintiff’s Motion to Strike. Decision and Order e CV1680-I 1, Guam Power, Inc. et at. v. Government of Guam et at. e BACKGROUND
2 Plaintiff filed the underlying Verified Complaint (“Complaint”) on October 14, 2011’
3 seeking damages from Defendants pursuant to the Government Claims Act. See 5 GCA § 6101. Plaintiff alleges, inter alia, breach of contract by Defendants with respect to a license to enter 5 into a contract for the financing, construction, and operation of a waste-to-energy facility. The 6 license at issue has been the subject of extensive litigation, the history and relevant facts of
which have been thoroughly explained by the Supreme Court of Guam in the following cases:
‘ Pangelinan v. Gutierrez (“Pangelinan T’), 2003 Guam 12; Pangetinan v. Gtttierrez I0 (“Pangelcnan IT’), 2004 Guam 16; Pangelman v. Camacho (“Pangetinan III”), 2008 Guam 4; II and Pan gelinan v. Carnctcho (“Pangelinan IV’), 2011 Guam 92 12
13 For purposes of the current motion before the Court, the relevant facts are as follows:
14 On January 2, 2019, Sandra Cruz Miller submitted a Notice of Withdrawal of Counsel of 15 Record. This Notice was not served upon Plaintiff. Ms. Cruz represented Defendants after the 16 Office of the Attorney General (“AG”) withdrew representation of Defendants on a conflict 17 basis. On April 30, 2019, three months after Ms. Cruz’s withdrawal, Assistant AG David J.
19 Highsmith entered his appearance for the Government and GEDA. On the same day, Plaintiff
20 submitted a Motion to Strike the AG’s appearance. On May 28, 2019, Defendants filed their 21 Opposition to Motion to Strike (“Opposition”). On June 11, 2019, Plaintiff filed its Reply in “7
Support of Plaintiff’s Motion to Strike Appearance of the Office of the Attorney General 23 (“Reply”). This matter came before the Court on August 26, 2019 for oral argument. At that 24
25 time, the Court took the matter under advisement.
27 The Complaint was amended on May 2, 2012. The Government and GEDA filed their Answers to the Amended Complaint on May 8,2012 and May II, 2012. respectively. 28 2 The Court hereby adopts and delèrs to the history and background stated in the aforementioned opinions for a complete recitation of the events leading up to the current motion.
Paze 2 of 7 Decision and Order CV1680-1 1, Guam Power, Inc. et at. v. Government oJGttam et at. . 1 DISCUSSION
2 Plaintiff alleges the AG’s appearance in this case should be stricken for a number of
3 reasons. The Court finds one of these reasons to be inapplicable to the analysis here. Plaintiff
dedicates a significant amount of its argument in its Motion to Strike and its Reply discussing 5 the benefits of waste-to-energy incineration facilities. Motion to Strike at 3-4 n. 3; Reply at 4-6. 6 The Court does not see how the alleged benefits of these facilities has any legal bearing on the
AG’s ability to appear on behalf of Defendants in this matter.
Aside from this argument, Plaintiff asserts the AG’s appearance should be stricken on 10 three other bases: (1) Ms. Cruz’s notice of withdrawal from this matter was not served upon 11 Plaintiff’s counsel; (2) the AG’s office will likely be a witness if the litigation continues; and (3) 12
13 entrance of the AG’s office will cause this case to delve further into litigation, causing prejudice
14 to Plaintiff. Defendant responds, arguing the Guam Organic Act designates the AG as counsel IS for the Government. Plaintiff replies, arguing Defendant’s opposition indicates the AG’s office 16 does not understand and does not have the ability to bring itself up to speed with the facts ot the 17 case, causing litigation to extend further, and that the appearance of the AG will disrupt these 18
19 proceedings, generally.
20 Plaintiff alleges its Motion to Strike is the appropriate channel to strike the appearance 21 of the AG in this matter. Reply at 2. Defendant argues Plaintiff’s Motion to Strike is essentially 22 a Motion to Disqualify, under which Plaintiff has not alleged any violations of the Guam Rules 23
14 of Professional Conduct. Opposition at 3-4. Regardless of the appropriate avenue to remove the
25 AG from this case, Plaintiff has not met its burden under either standard.
Page 3 o7 Decision and Order Cvi 680-il, Gttam Power, Inc. et al. v. Government of Guam et a!.
A. The AG’s appearance in this matter should not be stricken under a Motion to
2 Strike standard.
3 The arguments submitted by both counsel do not reference what the applicable standard
is in determining a motion to strike appearance of counsel. Both parties make respective
arguments for and against striking the AG’s appearance, but no legal standard is asserted. 6 Plaintiff asserts a Motion to Strike is the appropriate channel for such action, citing the 7 8 Court’s prior Decision and Order in Tsang v. Tsang. CV0897-15, Decision and Order on
Plaintiff’s Motion to Strike Appearance of Evergreen’s Counsel and Motion to Dismiss (Oct. 7, I0 2016) (“Tsang D&O”). However, the argument in the Thang D&O was premised on the 11 argument that the defendant in that case hired counsel without the proper legal authority. Id. at 12
13 The corporation defendant’s operating agreement provided the steps required to retain
14 counsel. Id. The corporation did not follow those steps. Id. at 4. In the Tsang D&O, the Court
had a basis on which to rest its order striking counsel’s appearance. 16 Here, the Court has no standard to follow. Plaintiff makes many allegations of the AG, 17 claiming the AG has its own agenda in this case and intends to renege on its client’s duties and 18 19 obligations under the Settlement Agreement. Motion to Strike at 3-5. Plaintiff offers no
20 evidence for this allegation, which appears to be the crux of its Motion to Strike. Plaintiff has
not cited any statute, case law, regulation, etc., vesting the Court with the authority to strike the “7
appearance of a party’s counsel on these grounds, nor can the Court find such statutes, case 23 laws, regulations, etc. 24
25 Therefore, under a Motion to Strike “standard,” Plaintiff’s Motion to Strike fails.
Page 4 ol7 Decision and Order . CV168O-1 1, Guam Power, Inc. et at. v. Government of Guam et at. . B. Plaintiff has not sufficiently alleged any basis to disqualify the AG’s office under a
2 Motion to Disqualify standard.
3 Defendants argue the motion should be considered a Motion to Disqualify, using an
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. FILE)
?fH OV !O 7 2 SUPERIOR OURT 3 OFGILM 4
7 GUAM POWER, INC., a Guam Corporation, as ) Case No. CV1680-ll $ general partner on behalf of GUAM RESOURCE RECOVERY PARTNERS. a Delaware Limited Partnership, ) ) DECISION AND ORDER Plaintiff, ) ii ) v. ) 12 ) ) 3 GOVERNMENT OF GUAM and GUAM ) ECONOMIC DEVELOPMENT ) ‘ AUTHORITY, a public corporation,
‘5 Defendant. ) ) 16
18 This matter came before the Honorable Alberto C. Lamorena, III on August 26, 2019 19 upon Plaintiff’s Motion to Strike Appearance of the Office of the Attorney General (“Motion to 20
21 Strike”). Attorney Ignacio C. Aguigui represents Guam Power, Inc. (“GPI”) and Guam
22 Resource Recovery Partners (“GRRP”) (collectively, “Plaintiff’). Assistant Attorney General
23 David J. Highsmith represents the Government of Guam (“Government”) and Attorney Thomas 24 J. fisher and Attorney Rachel Taimanao-Ayuyu represent the Guam Economic Development 25 Authority (“GEDA”) (collectively, “Defendants”). Having duly considered the parties’ briefs, 26
27 oral arguments, and the applicable law, the Court now issues the following Decision and Order
28 and DENIES Plaintiff’s Motion to Strike. Decision and Order e CV1680-I 1, Guam Power, Inc. et at. v. Government of Guam et at. e BACKGROUND
2 Plaintiff filed the underlying Verified Complaint (“Complaint”) on October 14, 2011’
3 seeking damages from Defendants pursuant to the Government Claims Act. See 5 GCA § 6101. Plaintiff alleges, inter alia, breach of contract by Defendants with respect to a license to enter 5 into a contract for the financing, construction, and operation of a waste-to-energy facility. The 6 license at issue has been the subject of extensive litigation, the history and relevant facts of
which have been thoroughly explained by the Supreme Court of Guam in the following cases:
‘ Pangelinan v. Gutierrez (“Pangelinan T’), 2003 Guam 12; Pangetinan v. Gtttierrez I0 (“Pangelcnan IT’), 2004 Guam 16; Pangelman v. Camacho (“Pangetinan III”), 2008 Guam 4; II and Pan gelinan v. Carnctcho (“Pangelinan IV’), 2011 Guam 92 12
13 For purposes of the current motion before the Court, the relevant facts are as follows:
14 On January 2, 2019, Sandra Cruz Miller submitted a Notice of Withdrawal of Counsel of 15 Record. This Notice was not served upon Plaintiff. Ms. Cruz represented Defendants after the 16 Office of the Attorney General (“AG”) withdrew representation of Defendants on a conflict 17 basis. On April 30, 2019, three months after Ms. Cruz’s withdrawal, Assistant AG David J.
19 Highsmith entered his appearance for the Government and GEDA. On the same day, Plaintiff
20 submitted a Motion to Strike the AG’s appearance. On May 28, 2019, Defendants filed their 21 Opposition to Motion to Strike (“Opposition”). On June 11, 2019, Plaintiff filed its Reply in “7
Support of Plaintiff’s Motion to Strike Appearance of the Office of the Attorney General 23 (“Reply”). This matter came before the Court on August 26, 2019 for oral argument. At that 24
25 time, the Court took the matter under advisement.
27 The Complaint was amended on May 2, 2012. The Government and GEDA filed their Answers to the Amended Complaint on May 8,2012 and May II, 2012. respectively. 28 2 The Court hereby adopts and delèrs to the history and background stated in the aforementioned opinions for a complete recitation of the events leading up to the current motion.
Paze 2 of 7 Decision and Order CV1680-1 1, Guam Power, Inc. et at. v. Government oJGttam et at. . 1 DISCUSSION
2 Plaintiff alleges the AG’s appearance in this case should be stricken for a number of
3 reasons. The Court finds one of these reasons to be inapplicable to the analysis here. Plaintiff
dedicates a significant amount of its argument in its Motion to Strike and its Reply discussing 5 the benefits of waste-to-energy incineration facilities. Motion to Strike at 3-4 n. 3; Reply at 4-6. 6 The Court does not see how the alleged benefits of these facilities has any legal bearing on the
AG’s ability to appear on behalf of Defendants in this matter.
Aside from this argument, Plaintiff asserts the AG’s appearance should be stricken on 10 three other bases: (1) Ms. Cruz’s notice of withdrawal from this matter was not served upon 11 Plaintiff’s counsel; (2) the AG’s office will likely be a witness if the litigation continues; and (3) 12
13 entrance of the AG’s office will cause this case to delve further into litigation, causing prejudice
14 to Plaintiff. Defendant responds, arguing the Guam Organic Act designates the AG as counsel IS for the Government. Plaintiff replies, arguing Defendant’s opposition indicates the AG’s office 16 does not understand and does not have the ability to bring itself up to speed with the facts ot the 17 case, causing litigation to extend further, and that the appearance of the AG will disrupt these 18
19 proceedings, generally.
20 Plaintiff alleges its Motion to Strike is the appropriate channel to strike the appearance 21 of the AG in this matter. Reply at 2. Defendant argues Plaintiff’s Motion to Strike is essentially 22 a Motion to Disqualify, under which Plaintiff has not alleged any violations of the Guam Rules 23
14 of Professional Conduct. Opposition at 3-4. Regardless of the appropriate avenue to remove the
25 AG from this case, Plaintiff has not met its burden under either standard.
Page 3 o7 Decision and Order Cvi 680-il, Gttam Power, Inc. et al. v. Government of Guam et a!.
A. The AG’s appearance in this matter should not be stricken under a Motion to
2 Strike standard.
3 The arguments submitted by both counsel do not reference what the applicable standard
is in determining a motion to strike appearance of counsel. Both parties make respective
arguments for and against striking the AG’s appearance, but no legal standard is asserted. 6 Plaintiff asserts a Motion to Strike is the appropriate channel for such action, citing the 7 8 Court’s prior Decision and Order in Tsang v. Tsang. CV0897-15, Decision and Order on
Plaintiff’s Motion to Strike Appearance of Evergreen’s Counsel and Motion to Dismiss (Oct. 7, I0 2016) (“Tsang D&O”). However, the argument in the Thang D&O was premised on the 11 argument that the defendant in that case hired counsel without the proper legal authority. Id. at 12
13 The corporation defendant’s operating agreement provided the steps required to retain
14 counsel. Id. The corporation did not follow those steps. Id. at 4. In the Tsang D&O, the Court
had a basis on which to rest its order striking counsel’s appearance. 16 Here, the Court has no standard to follow. Plaintiff makes many allegations of the AG, 17 claiming the AG has its own agenda in this case and intends to renege on its client’s duties and 18 19 obligations under the Settlement Agreement. Motion to Strike at 3-5. Plaintiff offers no
20 evidence for this allegation, which appears to be the crux of its Motion to Strike. Plaintiff has
not cited any statute, case law, regulation, etc., vesting the Court with the authority to strike the “7
appearance of a party’s counsel on these grounds, nor can the Court find such statutes, case 23 laws, regulations, etc. 24
25 Therefore, under a Motion to Strike “standard,” Plaintiff’s Motion to Strike fails.
Page 4 ol7 Decision and Order . CV168O-1 1, Guam Power, Inc. et at. v. Government of Guam et at. . B. Plaintiff has not sufficiently alleged any basis to disqualify the AG’s office under a
2 Motion to Disqualify standard.
3 Defendants argue the motion should be considered a Motion to Disqualify, using an
analysis of the Guam Rules of Professional Conduct to determine whether the AG should be 5 stricken as counsel. Opposition at 3-4. Plaintiff does not advance such a theory and has not 6 explicitly argued so.
8 However, Plaintiff, though not in the name of a Motion to Disqualify, asserts the AG’s
office’s appearance should be stricken on the grounds that the AG’s office will likely be: 10 witnesses in this litigation. Motion to Strike at 5. The Rules of Professional Conduct provide,
generally, that “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a 12
13 necessary witness . . . .“ Guam R. Prof’l Conduct r. 3.7(a). The Arizona Supreme Court, in
14 analyzing the rule of necessity under Rule 3.7(a), explains the proposed testimony from the 15 potential lawyer witness must be relevant, material, and unobtainable elsewhere. Sec. Ge,z. Life 16 Ins. Co. v. Superior Ct. In & For Yurna Cty., 718 P.2d 985, 987-88 (Anz. 1986) (analyzing 17 Arizona Rule 3.7(a) which mirrors the language of the Guam Rule of Professional Conduct
19 3.7(a)). further, the party moving for disqualification is required to demonstrate that any
20 corroborative testimony will be “necessary and not merely cumulative.” Cannon Airwctys, Inc. 21 Frctnkin Holdings Corp., 669 f.Supp. 96, 102 (D. Del. 1987) (analyzing Delaware Rule 3.7(a) T)
which mirrors the language of the Guam Rule of Professional Conduct 3.7(a)). 23
24 Here, Plaintiff alleges “the OAG and Mr. Orcutt are likely to be necessary witnesses at
25 any proceeding in which the Government persists in challenging the validity of the agreements
26 at issue in this case, thus precluding them from acting as counsel for the government.” Motion 27 . . to Strike at 5. However, Plaintiff makes no showing that the testimony of anyone from the AG’s 28
PageS ol’7 Decision and Order . CV16$0-1 1, Guam Power, Inc. et at. u. Government of Guam et at.
office nor Mr. Orcutt will be relevant, material, and unobtainable elsewhere. Additionally,
2 Plaintiff makes no showing that such testimony will be truly necessary and not merely
3 cumulative. Plaintiff has not met its burden in showing the proposed testimony will be 1 necessary under Rule 3.7(a). 5 Plaintiff also raises concerns that the AG does not or may not have the ability to “bring 6 itself up to speed regarding, the true facts of this case . . . .“ Reply at 6. The Rules of
$ Professional Conduct provide that “A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness and preparation 10 reasonably necessary for the representation.” Guam R. Prof’l Conduct r. 1.1. Plaintiff has not
shown that it has the requisite standing to make such a claim for disqualification on these 12 grounds. See Coyler r. Smith, 50 F.Supp.2d 966, 968 (C.D. Cal. 1999) (quoting Lttjan i’.
14 Defenders of Wildlife, 504 U.s 555, 560-61 (1992) (“The burden is on the party seeking relief to b establish these ‘irreducible constitutional minimum’ elements with respect to the particular 16 issues the party wishes to have decided”).3 17
Therefore, under a Motion to Disqualify standard, Plaintiff’s Motion to strike fails.
C. The Guam Organic Act authorizes the AG to act as counsel for the government.
20 The Guam Organic Act provides that “[t]he Attorney General of Guam shall be the 21 Chief Legal Officer of the Government of Guam.” 4$ U.S.C.A. § l421g(d)(l) (2018). This 77 indicates that in the Government’s legal matters, the AG shall represent the Government. While 23
74 the AG may have withdrawn prior due to conflict reasons, the Court sees no reason to withhold
25 the AG from performing its statutory duty absent any conflicts.
26 While Covter dealt with disqualification on rrounds of conflict of interest, the Court finds the reasoning applicable here. “To allow an unauthorized surrogate to champion the rights ot the former client wotild allow that 27 surrogate to use the conflict rules for his own purposes where a genuine conflict might not really exist.” In re Yarn Processing Patent Vatktitv Lirigcttion, 530 f.2d 83, 90 (5th Cir. 1976). To allow Plaintiff to argue disqualification 28 on behalf ot Detèndants would “champion the rights” of Defendants to ensure they are receiving competent representation if they are truly worried.
Page 6 of 7 Decision and Order CV1680-1 1, Guam Powe,; Inc. eta!. v. Government of Guam et at.
Plaintiff argues the Cou;-t needs to preliminarily address Ms. Cruz’s withdrawal in this
2 case, arguing that “Plaintiff’s counsel was never served with a copy of this Notice of
3 Withdrawal, and would have objected or responded to this unilateral withdrawal had it known
about it.” Motion to Strike at 2. Plaintiff also cites Guam Rule of Civil Procedure 5 and CVR
5.1 which requires service upon all parties. While service is required upon all parties, Plaintiff 6 has failed to explain exactly what its objection would have been had it been served with the
$ notice of withdrawal. It is Plaintiff’s burden to make all the necessary showings in its Motion to
Strike. A generalized proposition that an unspecified objection may have occurred will not 10 suffice. further, in light of the fact that the AG’s office is statutorily required to be counsel for
the Government, the Court fails to see how Plaintiff has been prejudiced by Ms. Cruz’s 12
13 withdrawal.
14 CONCLUSION
For the reasons stated above, Plaintiffs Motion to Strike is DENIED. Plaintiff has not 16 satisfied its burden in showing grounds to strike the appearance of the AG, either as a Motion to 17 Strike or a Motion to Disqualify. Further, the AG is statutorily authorized to act as counsel for 18
19 the Government. The Court furthers ORDERS the parties to provide the Court with an update
20 as to the status of the ongoing mediation. The Court orders that a status hearing will be set for 21 February 3, 2020 at 2:00pm.
23 IT IS SO ORDERED this 18th day 24
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