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1 IN THE SUPERIOR COURT OF GUAM 2 7m2 rED -6 At·1 \\: i I CARL T.C. GUTIERREZ, FRANKAGUON,) 3 JR., and JOHN AND JANE DOE CITIZEN) CIVIL CASE NO. GVI89)1·;1\)"'\ r' ,- \.F \.;U Ul\ PLAINTIFFS 1-1000, ) _.... \ ,'I ,'l '
4 ) 'j t Plaintiffs, ) , 5 ) DECISION AND ORDER RE: EX PARTE ) MOTION 6 n. ) ) 7 ) THE GUAM ELECTION COMMISSION,) 8 JOHN BLAS, JOSHUA TENORIO, JOSEPH) MESA, ALICE TAIJERON, JOHN) 9 TERLAJE, ROBERT CRUZ, MARTHA) RUTH, JOHN TAITANO, EDWARD B.) 10 CALVO, RAY TENORIO, AND JOHN and) JANE DOE DEFENDANTS, 1-1000,) 11 ) Defendants. ) 12 )
13 INTRODUCTION 14 The matter of Plaintiffs' Ex Parte Application for In Camera Hearing and to Extend the 15
17 Lujan represents the Plaintiffs, and Michael F. Phillips represents the Defendants. The ex parte 18 motion was accompanied by a declaration of counsel claiming that no notice of the ex parte 19 application should have been given to opposing counsel pursuant to CVR 7.1.1 (b), allowing 20 waivers of notice in the interests of justice. Pursuant to Rille 78 of the Guam Rules of Civil 21
hearing oral argument. 24 DISCUSSION 25 Plaintiffs' motion requests an ex parte, in camera hearing solely between Plaintiffs' 26 counsel and the Court, to be held off the record, for the purposes of allowing counsel to disclose Carl T.e. Gutierrez, et. al. v. Guam Election Commission et. al.; CVI89I-IO DECISION AND ORDER
1 information to the Court regarding a possible conflict of interests between clients. On its face, the 2 motion appears to request relief in the form of a hearing which would violate multiple rules. 3 The Superior Court of Guam has adopted the "Local Rules ofthe Superior Court of Guam," 4 and these rules are made applicable to any and all cases litigated in the Superior Court of Guam 5 through General Rule 1.1 ( c), which states: 6 (c) Scope of the Rules: Construction. These Rules supplement the Guam Rules of 7 Civil Procedure and the Guam Ru1es of Criminal Procedure. These Rules shall be construed so as to be consistent with applicable statutes to promote the just, 8 efficient and economical determination of every action and proceeding. The provisions ofthe General Rules and the provisions of Civil Ru1es 7.1 and 7.1.1 of 9 the Local Rules of the Superior Court of Guam shall apply to all actions and proceedings, including civil, tax, and criminal, except where they may be 10 inconsistent with rules or provisions oflaw specifically applicable thereto.
11 Local Ru1es of the Superior Court of Guam, GR 2.1 (2012) (emphases added).
12 General Rule 8.1 substantially proscribes communications with a judge of the Superior
13 Court of Guam and the judge's chamber personnel, and subsection ( a) specifically prohibits
14 anyone from communicating with the judge or the judge's chamber personnel about any matter
15 outside of calendaring purposes, except by means of papers allowed by law, such as filings
16 including motions or petitions:
17 GR 8.1. Correspondence and Communications with the Court. (a) No one shall directly or indirectly communicate with a judge or judicial officer, the Judge's 18 chamber personnel (including law clerk), the clerk of court, or the clerk's deputies and assistants about any matter pending with the court except: (1) In open court; 19 or (2) With the consent of all other counsel in such matter; or(3) In the presence of all other counsel in such matter; or (4) By means of petitions, motions or other 20 papers provided for or allowed by rule of law; or (5) Matters of calendaring.
21 Local Rules of the Superior Court of Guam, GR 8.1 (2012).
22 As set forth in Plaintiffs' motion, the communication sought between counsel and the Court
23 is not proposed to be made in the presence of opposing counsel, with the approval of opposing
24 counsel, in open court, on the record, nor by means of filed documents, such that it could properly
25 become part of the court's record, nor is its content alleged to concern matters of calendaring.
26 Accordingly, under the local rules, the only manner in which counsel may privately meet with the
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1 Court, ex parte, is as "allowed by rule oflaw" pursuant to GR 8. 1(a)(4). 2 Thus, the Court looks to whether the type of disclosure and communication sought with 3 the Court is permitted by law. At the outset, the Court notes that the Plaintiffs have failed to cite 4 any authority permitting a Court to hold a private meeting with counsel for one party for the 5 purpose of receiving disclosures regarding potential conflicts of interest. Having thus been 6 provided with no direction or legal support for this proposed hearing and disclosure, the Court will 7 begin by examining the ethical implications of such a hearing. 8 Plaintiffs have explicitly declared that "said matters involve the Attorney-Client 9 relationship," and therefore "counsel requests an in-camera(sic) hearing to address the January 19, 10 2012 development and to preserve the Attorney-Client relationship. For the same reasons, counsel 11 requests that notice to the opposing parties should not be required as permitted by CVR 12 7. 1. 1(a)(1)." Gutierrez, et. al. v. Guam Election Commission, et. aI., Civil Case No. CV1891-10, 13 Ex Parte Application for In Camera Hearing and to Extend the Deadline for Objections; 14 Memorandum of Points and Authorities; Declaration of Counsel, p. 2, line 5, and p. 3, lines 3-6 15 (filed January 24, 2012). 16 Plaintiffs cite to GRPC Ru1e 1.6 regarding confidential information, and have expressly 17 determined that the information sought to be disclosed to the Court is confidential, and subject to 18 the Attorney-Client privilege and GRPC Rule 1.6. Ironically, despite Plaintiffs' attorney's 19 determination that the information sought to be disclosed is confidential, Plaintiffs' attorney now 20 seeks to disclose this information to the Court. 21 Rule 1.6 of the Guam Ru1es of Professional Conduct governs the "Confidentiality Of 22 Information" and states: 23 (a) A lawyer shall not reveal information relating to the representation of a client 24 unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). 25 (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain 26 death or substantial bodily harm; (2) to secure legal advice about the lawyer's
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1 compliance with these Rules; (3) to establish a claim or defense on behalf of the 2 lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the 3 client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation. of the client; or (4) to comply with other law or a court 4 order.
5 GRPC Rule 1.6 (2012).
6 Pursuant to Rule 1.0(b), '''Confirmed in writing,' when used in reference to the informed
7 consent of a person, denotes informed consent that is given in writing by the person or a writing
8 that a lawyer promptly transmits to the person confIrming an oral informed consent." GRPC Rule
9 1.0(b) (2012). Pursuant to Rule I.O( e), "'Informed consent' denotes the agreement by a person to
10 a proposed course of conduct after the lawyer has communicated adequate information and
11 explanation about the material risks of and reasonably available alternatives to the proposed course
12 of conduct." GRPC Rule 1.0(e) (2012).
13 As set forth in the Plaintiffs' motion, the information sought to be disclosed by Plaintiffs'
14 attorney to the Court constitutes information "relating to the representation of a client." Because
15 information regarding an attorney's continued representation and possible conflict of interest
16 relates to the representation of the Plaintiffs, in order for Plaintiffs' attorney to disclose such
17 information, it must either be "impliedly authorized, "consented in writing," or it must qualify
18 under one of the exceptions listed in subsection (b). The information regarding a possible conflict
19 of interest does not appear to fit any of the exceptions to the prohibition of disclosure of
20 information obtained from a client in confidence and relating to the representation of the client
21 under GRPC Rule 1.6(b), and the Plaintiffs do not claim that any of these exceptions is applicable.
22 Further, the Plaintiffs have failed to include any evidence of informed written consent. See CVR
23 Rule 7.1 (c)(2). Therefore, the only possible way for the Plaintiffs' attorney to reveal such
24 information to the Court is if the disclosure to the Court is "impliedly authorized" by the
25 representation. This implied authorization is the only basis for disclosure mentioned in the
26 Plaintiffs'motion.
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1 The Guam Rules ofProfessional Conduct were adopted directly from the 2002 ABA Model 2 Rules of Professional Conduct on September 29, 2003, pursuant to Promulgation Order No. 3 04-002. Therefore, the commentary, legislative history, and cases interpreting the ABA Model 4 Rules of Professional Conduct constitute persuasive authority in Guam. See e.g., People v. Diaz, 5 2007 Guam 3, ~14, n.4 (Sup. Ct. Guam 2007)(where a Guam rule is substantially similar to and 6 derived from a federal rule, federal cases interpreting that rule are persuasive authority); and Gibbs 7 v. Holmes, 2001 Guam 11, ~15 (Sup. Ct. Guam 2001)(where the Guam statute is similar to a state 8 or federal statute, the state or federal cases interpreting that statute are persuasive authority in 9 Guam). 10 Drafters' Comment Five to the identical ABA rule provides general guidance as to what 11 types of disclosures are "impliedly authorized" by representation, stating: 12 Except to the extent that the client's instructions or special circumstances limit that 13 authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a 14 lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. 15 Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that 16 particular information be confmed to specified lawyers.
17 ABA Model Ru1es of Professional Conduct, Rule 1.6, Comment 5 (2007).
18 Drafters' Comment Nine highlights that disclosures to obtain ethical advice from another
19 attorney are also generally impliedly authorized:
20 A lawyer's confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer's personal responsibility to comply with 21 these Rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when 22 the disclosure is not impliedly authorized, paragraph (b)(4) permits such disclosure because of the importance ofa lawyer's compliance with the Rules of Professional 23 Conduct.
24 ABA Model Rules of Professional Conduct, Rule 1.6, Comment 9 (2007). 25 26 Both of these comments suggest that disclosures to other attorneys who are not opposing
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1 counsel may be proper under particular circumstances. However, there is no indication within the 2 rule or these comments that such disclosures would be properly made to a sitting judge. More 3 particularly, there is no indication that the disclosure of a client's confidential information 4 regarding a pending case, to a judge presiding over that case would be impliedly authorized. 5 When an attorney is faced with a possible conflict of interests between concurrent clients, 6 Rule 1.7 directs an attorney as to the attorney's duties: 7 Rule 1.7 Conflict Of Interest: Current Clients (a) Except as provided in paragraph 8 (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation 9 of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the 10 lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent 11 conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and 12 diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim 13 by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed 14 consent, confirmed in writing.
15 ABA Model Rules of Professional Conduct, Rule 1.7 (2007). 16 Again, the ABA comments to the rule provide guidance as to how the attorney should
17 proceed in such a situation, in general, Comment Two states:
18 Resolution of a conflict of interest problem under this Rule requires the lawyer to: 1) clearly identify the client or clients; 2) determine whether a conflict of interest 19 exists; 3) decide whether the representation may be undertaken despite the existence ofa conflict, i.e., whether the conflict is consentable; and 4) ifso, consult 20 with the clients affected under paragraph (aJ and obtain their informed consent, confirmed in writing. The clients affected under paragraph (a) include both of the 21 clients referred to in paragraph (a)(1) and the one or more clients whose representation might be materially limited under paragraph (a)(2). 22 ABA Model Rules of Professional Conduct, Rule 1.7, Comment 2 (2007)(emphasis added). 23 The comments set forth procedural guidance for a pre-existing conflict: 24 A conflict of interest may exist before representation is undertaken, in which event 25 the representation must be declined, unless the lawyer obtains the informed consent of each client under the conditions of paragraph (b). To determine whether a 26 conflict of interest exists, a lawyer should adopt reasonable procedures,
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1 appropriate for the size and type of firm and practice, to determine in both 2 litigation and non-litigation matters the persons and issues involved. See also Comment to Rule 5.1. Ignorance caused by a failure to institute such procedures 3 will not excuse a lawyer's violation of this Rule. As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment 4 to Rule 1.3 and Scope.
5 ABA Model Rules of Professional Conduct, Rule 1.7, Comment 3 (2007)(emphasis added). 6 The comments further set forth procedural guidance for a conflict which arises later:
7 If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the 8 informed consent of the client under the conditions ofparagraph (b). See Rule 1.16. Where more than one client is involved, whether the lawyer may continue to 9 represent any of the clients is determined both by the lawyer's ability to comply with duties owed to the former client and by the lawyer's ability to represent 10 adequately the remaining client or clients, given the lawyer's duties to the former client. See Rule 1.9. See also Comments [5] and [29]. 11 ABA Model Rules of Professional Conduct, Rule 1.7, Comment 4 (2007)(emphasis added). 12 The point of these comments is clear. When an attorney encounters a probable or possible 13 conflict of interests between concurrent clients, it is the attorney's ethical obligation to handle the 14 situation personally. The attorney's duty is to determine all aspects of the conflict, including how 15 the attorney will proceed with continued representation, and no judicial involvement is implicated 16 III any manner. In short, the Court does not resolve these types of issues for the parties or their 17 attorneys. 18 Regarding the attorney-client relationship, concurrent conflicts of interest, and an attorney's 19 duties to his client under all of these rules, the Supreme Court of Guam has adopted the reasoning 20 of the California Court of Appeals. Gill v. Bischoff, 2011 Guam 25 ~16. That court aptly stated, 21 and the Supreme Court of Guam reiterated in part: 22 'The relation between attorney and client is a fiduciary relation of the very highest 23 character, and binds the attorney to most conscientious fidelity ... ' Thus, not only does the attorney owe the duty to use skill, prudence and diligence in the 24 performance of the tasks he undertakes for his client but owes undivided loyalty to the interests professionally entrusted to him. Because ofthe inherent character of 25 the attorney-client relationship, it has been jealously guarded and restricted to only the parties involved. For example, so personal and highly confidential is the 26 relationship and so personal are the services performed by the attorney that his
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1 authority, in the absence of exceptional justifying circumstances, is not delegable 2 to other counsel without the client's permission; . ...
3 Goodley v. Wank & Wank, Inc., 133 Cal.Rptr. 83, 86 (Ct.App.1976) (emphasis added) (internal
4 citations omitted).
5 The Plaintiffs' attorney may not delegate the attorney's ethical dilemma to the Court by
6 disclosing confidential infonnation to the Court.
7 Most importantly, and unfortunately, within the motion filed, the Plaintiffs' attorney has
8 already disclosed some confidential infonnation regarding a possible conflict of interest to the
9 Court. Gutierrez, Civil Case No. CVI891-1O, Ex Parte Application for In Camera Hearing and
10 to Extend the Deadline for Objections; Memorandum of Points and Authorities; Declaration of
11 Counsel, p. 2, lines 9-12 (filed January 24, 2012)("On or about January 19,2012, a client herein
12 emailed(sic) the undersigned counsel requesting his dismissal from the case. Thus, counsel
13 believes this affects his continued concurrent representation of Plaintiffs herein.").
14 The unilateral provision of ex parte communications to the Court, in certain circumstances,
15 has been held to require the disqualification of a judge of the Superior Court of Guam, even if the
16 substantive content of the communication does not consist of unknown infonnation, and is not
17 immediately reviewed by the judge. Dizon v. Superior Court of Guam, 1998 Guam 3 ~~ 11-15.
18 Specifically, in Dizon, the Supreme Court of Guam found that the court's failure to disclose
19 an ex parte communication received by the court created an appearance of bias, even though the
20 content of the communication could have been considered innocuous. Id. at ~15. It is clear that
21 the Court's duty is to disclose any communications which appear to violate the rules, and infonn
22 all parties that the communication will not be considered. Id.; and Model Judicial Code of
23 Conduct, Canon 3(B)(7)(a)(ii)(1990).
24 Ex parte communication with a judge regarding a pending case before the judge is not
25 pennissible in this instance. Local Rules of the Superior Court of Guam, GR 8.1. Further,
26 communication with the judge may constitute a possible violation of the Guam Rules of
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1 Professional Conduct, Rule 3.5(b)(2011) ("Impartiality and Decorum of the Tribunal. A lawyer 2 shall not: (b) communicate ex parte with [a judge or other official] during the proceeding unless 3 authorized to do so by law or court order;"). 4 As there is no evidence of a written informed waiver of any of these issues by the Plaintiffs, 5 and it appears that the disclosure of confidential infonnation to the Court regarding a possible 6 coIPlict of interest violates these rules in every respect, the Court must deny the Plaintiffs' request 7 to hold an ex parte, in camera hearing, and must disclose the information received to the extent 8 it is included in the Court's record. 9 The Court takes note of the offer of this ex parte information, and the Plaintiffs' already 10 effected unilateral provision ofsome ofthis information to the Court, as contained in the Plaintiffs' 11 motion, see Gutierrez. Civil Case No. CV1891-1O, Ex Parte Application for In Camera Hearing 12 and to Extend the Deadline for Objections; Memorandum of Points and Authorities; Declaration 13 of Counsel, p. 2, lines 9-12 (filed January 24,2012), in order to prevent any appearance of bias 14 or impartiality on the part of the Court, and to issue a cautionary instruction against the pitfalls of 15 informal communications with the Court. 16 Whereas it appears that the remedy of an ex parte, in camera hearing regarding the subject 17 of disclosure of confidential information concerning a conflict of interests between clients is not 18 authorized by law, and is instead prohibited by law, the Court DENIES the Plaintiffs' request for 19 such a hearing. Further, whereas it also appears that the information already provided does not 20 comply with GR Rule 8.1 (a), the Court herein DISCLOSES the communication to meet disclosure 21 requirements and avoid the appearance of partiality or bias. Dizon, 1998 Guam 3 at ,15; and 22 Model Judicial Code ofConduct, Canon 3(B)(7)(a)(iiX1990). The Court further informs the parties 23 that the Court will not consider any of the contents of the motion in determining the matters before 24 the Court. 25 26
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1 A) Enlargement of Time Pursuant to GRCP Rule 6(b)(1) . 2 Attorney Jesse Nassis previously appeared on behalf of the Plaintiffs at a status hearing 3 held on January 18, 2012, at which time the Court disclosed that it had been appointed to serve in 4 a non-compensated position on the Juvenile Justice Advisory Board by one of the Defendants, 5 Edward B. Calvo. Thereupon, the Court granted the parties an opportunity to file any objections 6 to the Court's qualification to hear this case pursuant to 7 GCA § 6105. In accordance with the 7 Court's order, the time to file an objection expired on January 24,2012. The Plaintiffs did not file 8 an objection to competency, however, on January 24, 2012, the Plaintiffs filed a request for an 9 extension oftime to file such objections. 10 Rule 1 of the Guam Rules of Civil Procedure states that the Rules "shall be construed to 11 secure the just, speedy, and inexpensive detennination of every action." GRCP Rule 1 (2012). 12 The Supreme Court of Guam has held that the Guam Rules of Civil Procedure, adopted from the 13 Federal Rules of Civil Procedure were "designed to discourage battles over mere fonn and 14 eradicate needless procedural controversies, and to simplifY practice by minimizing procedural 15 encumbrances." Guam Power Authority v. Civil Service Com'n, 1988 Guam 15 ~ 3. 16 The United States Supreme Court, affirming that the purpose of the Federal Rules of Civil 17 Procedure is to allow litigants increased access to the courts, explained: "[I]f the rules of procedure 18 work as they should in an honest and fair judicial system, they not only pennit, but should as nearly 19 as possible guarantee that bona fide complaints be carried to an adjudication on the merits." 20 Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 373 (1966). In accordance with the basic principles 21 of fairness and equity espoused by the United States Supreme Court and the Rules of Civil 22 Procedure, GRCP Rule 6 allows the Court to enlarge time periods prescribed by the Rules of Civil 23 Procedure or set by order of the Court. 24 GRCP 6(b)(I) provides in relevant part: 25 Enlargement. When by these rules or by a notice given thereunder or by 26 order of court an act is required or allowed to be done at or within a
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1 specified time, the court for cause shown may at any time in its discretion 2 (1) with or without notice or motion order the period enlarged if request therefor is made before the expiration of the period originally prescribed 3 or as extended by a previous order.. ..
4 GRCP Rule 6(b)(1)(2012).
5 Rule 6(b) grants a court wide discretion to allow additional time when a request is made
6 prior to the expiration of the time period set by the court or prescribed by the Rules of Civil
7 Procedure. GRCP Rule 6(b)(1). A court may exercise its discretion under Rule 6(b )(1) only for
8 "cause shown," thus requiring that a party requesting an enlargement of time must demonstrate
9 some justification for the issuance of the order. Id. So long as a showing of cause is made to the
10 court, an application for enlargement of time under Rule 6(b)( 1) is generally granted in the absence
11 of bad faith or prejudice to the opposing party. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253,
12 1259 (9th Cir. 2010); Creedon v. Taubman, D.C. Ohio 1947,8 F.R.D. 268, 268-69 (Ohio Dist. Ct.
13 1947); see also Galdi v. Jones, 141 F.2d 982, 992 (2d Cir. 1944).
14 The Plaintiffs filed their motion requesting an extension oftime to file an objection to this
15 Court's competency on January 24,2012, prior to the expiration of the time set by the Court.
16 Therefore, the Court applies Rule 6(b)(1) to the request.
17 Bearing in mind that this is the first extension requested by the Plaintiffs, and therefore, the
18 grant of an extension is generally discretionary, the Court scoured the Plaintiffs motion for any
19 indication of "cause" shown within the motion. The Court found no statement setting forth a cause
20 or reason for the extension. In fact, within the memorandum of points and authorities itself, the
21 Court could not locate a statement or language even addressing the issue of an extension.
22 The Plaintiffs' motion is unaccompanied by any statement setting forth the reason or
23 "cause" for the grant of an extension. Since the application is also made ex parte, the Plaintiffs
24 have also failed to submit a declaration containing the reasons why the opposing parties could not
25 be notified regarding the request for an extension oftime, pursuant to CVR Rule 7.1.1(a). The
26 Plaintiffs have submitted a "declaration," however, this declaration fails to address or mention the
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1 Plaintiffs' motion for an extension, and fails to explain why the interests ofjustice would be better 2 served by hearing this motion without notice to the Defendants, as would satisfY CVR 7.1.1 (a) or 3 (b). Courts in similar situations have determined that the failure to comply with both Rule 6(b) 4 and local rules requires denial of the motion. Garcia v. New York State Police Investigator Aguiar, 5 138 F.Supp.2d 298, 301-02 (N.D.N.Y. 2001)(a request for an extension which neither complied 6 with Rule 6(b), nor the local rule, 7.1, regarding the filing and submission of motions could not 7 be granted due to the failure to comply with these procedures). 8 Even if the Court were to ignore the explanation and declaration requirement of CVR Rule 9 7.1.1, and the Plaintiffs' failure to comply with the local rule, the Court cannot fmd a single 10 statement within the Plaintiffs' memorandum of points and authorities which either: (1) sets forth 11 a request for an extension; or (2) sets forth a cause or reason for the grant of an extension. 12 The sole indicators that the Plaintiffs desire further opportunity to file an objection to the 13 Court's competency are found in the title of the Plaintiffs' motion, which is labeled, "Ex Parte 14 Application for In Camera Hearing and to Extend the Deadline for Objections; Memorandum of 15 Points and Authorities; Declaration of Counsel," and the first line of the filing, which states: 16 "COMES NOW PETITIONE~ undersigned counsel, and moves the Court for an Ex Parte Order 17 ... extending the deadline whether to object to the Honorable ARTHUR BARCINAS presiding 18 over this matter." Civil Case No. CV 1891-10, Ex Parte Application for In Camera Hearing and 19 to Extend the Deadline for Objections; Memorandum of Points and Authorities; Declaration of 20 Counsel, p. 1, lines 9-12 and 18-20 (filed January 24,2012). No statement of the reason for the 21 extension is declared or even hinted. 22 Some reason or "cause" for the extension must be provided by the party requesting the 23 extension, and the extension cannot be granted in the absence thereof. See Mendez v. Elliot, 45 24 F.3d 75, 79 (4th Cir. 1995)("Whether the court acts before or after the deadline [] has passed, 25 however, the court may only grant the extension for good cause."); and Garcia v. U.S. Postal 26
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1 Service, 98 CIV 9152 HBP, 2001 WL 102349, at *1 (S.D.N.Y. Feb. 7, 2001)(where no statement 2 or explanation of cause for an extension was provided, "the absence of any reason for plaintiffs' 3 failure to demand ajury in a timely manner weigh[ ed] against granting plaintiffs' application" even 4 in the absence of prejudice or bad faith). Accordingly, as the Plaintiffs have provided no cause 5 upon which the Court could grant an extension of time to file an objection, and the Court cannot 6 find a basis upon which to grant the request, the request must be denied. 7 However, pursuant to the Court's inherent powers under 7 GCA § 7107, the objectives of 8 GRCP Rule 1, the timeliness of Plaintiffs' request for an extension, and the principles of law set 9 forth in this decision, the Court grants an extension of time to properly file a request for an 10 extension of time to file an objection to the Court's competency which complies with GRCP Rule 11 6(b)(1) by including a declaration or statement of "cause" for the extension oftime to hear such 12 an objection, and. GRCP Rule 6(b)(Court may sua sponte grant an extension of time under Rule 13 6(b) for cause). The Court grants this extension of time to properly request an extension on the 14 basis or "cause" that the Plaintiffs timely attempted to request an extension, but apparently failed 15 to comply with both the rules of civil procedure and the local rules due to the joint filing of the 16 request with the Plaintiffs' motion for an ex parte, in camera hearing. As further cause, the Court 17 recognizes that the Defendants have had no notice of this request for an extension and no 18 opportunity to respond, and regarding Rule 6 extensions, "the Court prefers to resolve cases on 19 their merits and to rule on motions with the benefit of all relevant evidence and argument, as an 20 approach that best serves the interests of justice." Kucik v. Yamaha Motor Corp., U.S.A., Cause 21 No. 2:08-CV-161-TS, 2009 WL 3401978, *2 (Ind. Dist Ct. 2009). Accordingly, the Court will 22 allow the Plaintiffs a second chance to file a proper request, such that: (1) the Defendants will be 23 properly notified of the request for an extension, or the Plaintiffs will comply with CVR Rule 24 7.1.1(a) and show cause why the Defendants should not be notified of this particular request; and 25 (2) the Court's record and the basis for granting an extension to file objections will be clear. 26
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1 CONCLUSION 2 The Court DENIES the Plaintiffs' requests for an ex parte, in camera hearing, and 3 DENIES Plaintiffs' request for additional time to file an objection to competency. However, the 4 Plaintiffs are GRANTED additional time in which to properly file a request for an extension which 5 complies with the Guam Rules of Civil Procedure, Rule 6, and the Local Rules of the Superior 6 Court of Guam, CVR Rule 7.1 or CVR Rule 7.1.1. Plaintiffs are afforded the opportunity to file 7 a request for extension of time to file an objection on or before February 22, 2012. The Plaintiffs' 8 request, if any, shall include a declaration of "cause" as required under GRCP Rule 6 and shall 9 comply with the mandates ofCVR 7.1 or CVR 7.1.1, in order that the Court may properly hear and 10 determine the request. Thereafter, the Defendants shall have an opportunity to respond as permitted 11 under CVR Rule 7.1 or CVR 7.1.1. 12 13 SO ORDERED: FEB 062012 14 • 8 15 HONORABLE ARTHUR R. BARCINAS 16 Judge, Superior Court of Guam
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