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2 1.1 it & ful Ji L A 5 16 M 10: 1 3 CLEP C i ! U R -
BY: 4 IN THE SUPERIOR COURT 5 OF GUAM
6 CHUNG SOOK KIM, ) Civil Case no. CV0710-11
7 Plaintiff,
8 vs. 9 MI HYE KIM, KI YOUNG KIM, MIN ) DECISION AND ORDER KYONG KIM, HEE SOON JEONG, BYUNG) 10 GON KIM, and DOES I through IV, ) 11 Defendants. ) 12
14 INTRODUCTION
15 Pursuant to Rule 7.1 of the Local Rules of the Superior Court of Guam, Defendants'
16 Hee Soon Jeong and Byung Gon Kim ' s, Motion to Amend Pleading and Notice of Withdrawal 17 of Consent to Previous Scheduling Order; Request for Scheduling Order Dates; and Proposed 18 Scheduling Order have been placed under advisement by the Honorable Judge Michael J. 19 Bordallo. Defendants Mi Hye Kim, Ki Young Kim and Min Kyong Kim (hereafter Defendants 20 21 Kim) are represented by attorney John R. B. Bell. Defendants Hee Soon Jeong and Byung Gon
22 Kim (hereafter Defendants Jeong) were represented by attorney Helkei S. Hemminger. 23 Plaintiff was represented by attorney Carlos L. Taitano. Having received and reviewed the 24 arguments, papers, and file herein, the Court now issues the following order allowing 25 Defendants Jeong's request to amend, and entering a scheduling order. 26
Page 1 of 6 I BACKGROUND 2 1. 3 In the suit it is partially alleged that on January .15, 2010, Defendants Jeong entered into 4
an agreement with Defendant Mi Hye Kim and Plaintiff Choon Sook Kim to purchase a 5 6 residential property. The agreement set a purchase price of the residential property at
7 $300,000. Defendant' s Jeong provided this amount through the transfer of their Mini Mart 8 business, a lease back provision allowing Plaintiff to remain on the residential property for two 9 years, and a payment of $60,000.00. 10 11 The instant matter arises out of a civil complaint for cancellation of instrument
12 containing three counts for breach of fiduciary duty, aiding and abetting breach of fiduciary 13 duty and constructive trust, filed by the Plaintiff on April 22, 2011. Plaintiff filed a first 14 amended complaint for cancellation of instrument on May 6, 2011. Plaintiff's first amended 15 complaint contained four counts: breach of fiduciary duty, fraud, aiding and abetting breach of 16
17 fiduciary duty and constructive trust.
18 On February 17, 2012, the Court entered an order dismissing Count II of Plaintiff's 19 complaint and granting leave to amend a portion of her pleading. Plaintiff filed her second 20 amended complaint on March 9, 2012. In her pleading Plaintiff alleges counts of. breach of 21
duty, fraud, aiding or abetting breach of duty, and constructive trust. On April 9, 2013 22
23 Defendants Jeong filed a pleading entitled, Answer to Complaint; Counterclaim as to Plaintiff;
24 Cross-claim as to Defendants ' Mi Hye Kim, Ki Young Kim, Min Kyong Kim; Demand for 25 Arbitration. In their counter-claim and cross-claim Defendants Jeong allege four causes of 26 action and a section entitled Demand for Arbitration. The causes of action alleged in 27
28 Defendants Jeong's pleading are: quiet title, breach, of warranty, recission and fraud.
Page 2 of 6 I II. 2 Defendants Kim, on May 3, 2013, pursuant to Rule 12(b)(6), filed a motion to dismiss 3 Defendants Jeong's count for recission and fraud and to deny demand for arbitration. The Court 4
on August 29, 2013 granted in part Defendants Kim's motion to dismiss, and dismissed the 5 6 fraud claim as to the unnamed parties. It held that the arbitration was outside its scope of
7 review and lacked specificity. The Court held that the remainder of the challenged counts of 8 Plaintiff' s Second Amended Complaint were sufficient to withstand a rule 12( b)(6) motion. 9 Prior to the entry of this order the Parties, on August 27, 2013, filed a stipulated discovery 10
11 plan. It set deadlines for the disclosure of expert testimony and referenced but did not identify a
12 discovery cutoff deadline.
13 III. 14 Subsequent to Defendants Jeong's February 10, 2014, substitution of counsel , on March 15 14, 2014, Defendant Jeong filed a Motion to Amend Pleading . In their motion Defendants 16
17 request that they be allowed to specifically include an additional affirmative defense of bona
18 fide purchaser and two additional causes of action for ejectment and unjust enrichment. 19 Plaintiff and Defendants Kim did not file papers in opposition to Defendants Jeong's 20 request. 21
IV. 22
23 On March 14, 2014, Defendants Jeong filed a paper entitled, Notice of Withdrawal of
24 Consent to Previous Scheduling Order; Request for Scheduling Order Dates; and Proposed 25 Scheduling Order. In it Defendants Jeong assert and argue that because many of the dates in the 26 previous order have passed and in light of their new attorneys substitution of counsel , the prior 27
28 stipulation between the parties is no longer practicable. They assert that they have been unable
Page 3 of 6 I to reach a stipulation by the other Parties to this request and are accordingly proposing the entry 2 of a scheduling order and requesting that the Court assign appropriate dates to the specific 3 events. 4
Plaintiff and Defendants Kim did not file papers in opposition to Defendant' s Jeong's 5
6 request. Furthermore at the May 27, 2014 hearing, Defendants Jeong indicated that the Parties
7 had agreed to the dates as set forth in Defendants Jeong's proposed scheduling order. 8 V. 9 On May 22, 2014, Defendants Jeong filed an Ex Parte Application for Temporary 10 II Restraining Order and Order to Show Cause why a Preliminary Injunction should not Issue.
12 However at a further proceedings hearing on the June 23, 2014, that motion was withdrawn.
13 DISCUSSION 14 1. 15 Rule 15 of the Guam Rules of Civil Procedure governs the amendment of a party's 16
17 pleadings. Guam R . Civ. P. 15. It provides,
18 [a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no 19 responsive pleading is permitted and the action has not been placed upon the trial 20 calendar, the party may o amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by 21 written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the 22 time remaining for response to the original pleading or within 10 days after 23 service of the amended pleading, whichever period may be the longer, unless the court otherwise orders. 24
Id. Applying the above rule to the facts of this case Defendants Jeong's request is to be 25
26 analyzed under a "shall be freely granted when justice so requires " showing. Id. Defendants
27 Jeong assert that their grounds to support such a finding lie in their desire to cure a possible 28 pleading error where their First Amended Answer asserts facts demonstrating a bona fide
Page 4 of 6 I purchaser status but fails to specifically list it as an affirmative defense. Similarly Defendants 2 Jeong assert that their additional causes of action have been adequately noticed and are directly 3 linked to the bona fide purchaser defense such that justice requires their inclusion.
In light of the above and specifically the non-opposition of the Parties the Court finds that 5 6 the request to amend is sufficiently supported. Id. However in light of this case 's April 22,
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`fit! J I
I
2 1.1 it & ful Ji L A 5 16 M 10: 1 3 CLEP C i ! U R -
BY: 4 IN THE SUPERIOR COURT 5 OF GUAM
6 CHUNG SOOK KIM, ) Civil Case no. CV0710-11
7 Plaintiff,
8 vs. 9 MI HYE KIM, KI YOUNG KIM, MIN ) DECISION AND ORDER KYONG KIM, HEE SOON JEONG, BYUNG) 10 GON KIM, and DOES I through IV, ) 11 Defendants. ) 12
14 INTRODUCTION
15 Pursuant to Rule 7.1 of the Local Rules of the Superior Court of Guam, Defendants'
16 Hee Soon Jeong and Byung Gon Kim ' s, Motion to Amend Pleading and Notice of Withdrawal 17 of Consent to Previous Scheduling Order; Request for Scheduling Order Dates; and Proposed 18 Scheduling Order have been placed under advisement by the Honorable Judge Michael J. 19 Bordallo. Defendants Mi Hye Kim, Ki Young Kim and Min Kyong Kim (hereafter Defendants 20 21 Kim) are represented by attorney John R. B. Bell. Defendants Hee Soon Jeong and Byung Gon
22 Kim (hereafter Defendants Jeong) were represented by attorney Helkei S. Hemminger. 23 Plaintiff was represented by attorney Carlos L. Taitano. Having received and reviewed the 24 arguments, papers, and file herein, the Court now issues the following order allowing 25 Defendants Jeong's request to amend, and entering a scheduling order. 26
Page 1 of 6 I BACKGROUND 2 1. 3 In the suit it is partially alleged that on January .15, 2010, Defendants Jeong entered into 4
an agreement with Defendant Mi Hye Kim and Plaintiff Choon Sook Kim to purchase a 5 6 residential property. The agreement set a purchase price of the residential property at
7 $300,000. Defendant' s Jeong provided this amount through the transfer of their Mini Mart 8 business, a lease back provision allowing Plaintiff to remain on the residential property for two 9 years, and a payment of $60,000.00. 10 11 The instant matter arises out of a civil complaint for cancellation of instrument
12 containing three counts for breach of fiduciary duty, aiding and abetting breach of fiduciary 13 duty and constructive trust, filed by the Plaintiff on April 22, 2011. Plaintiff filed a first 14 amended complaint for cancellation of instrument on May 6, 2011. Plaintiff's first amended 15 complaint contained four counts: breach of fiduciary duty, fraud, aiding and abetting breach of 16
17 fiduciary duty and constructive trust.
18 On February 17, 2012, the Court entered an order dismissing Count II of Plaintiff's 19 complaint and granting leave to amend a portion of her pleading. Plaintiff filed her second 20 amended complaint on March 9, 2012. In her pleading Plaintiff alleges counts of. breach of 21
duty, fraud, aiding or abetting breach of duty, and constructive trust. On April 9, 2013 22
23 Defendants Jeong filed a pleading entitled, Answer to Complaint; Counterclaim as to Plaintiff;
24 Cross-claim as to Defendants ' Mi Hye Kim, Ki Young Kim, Min Kyong Kim; Demand for 25 Arbitration. In their counter-claim and cross-claim Defendants Jeong allege four causes of 26 action and a section entitled Demand for Arbitration. The causes of action alleged in 27
28 Defendants Jeong's pleading are: quiet title, breach, of warranty, recission and fraud.
Page 2 of 6 I II. 2 Defendants Kim, on May 3, 2013, pursuant to Rule 12(b)(6), filed a motion to dismiss 3 Defendants Jeong's count for recission and fraud and to deny demand for arbitration. The Court 4
on August 29, 2013 granted in part Defendants Kim's motion to dismiss, and dismissed the 5 6 fraud claim as to the unnamed parties. It held that the arbitration was outside its scope of
7 review and lacked specificity. The Court held that the remainder of the challenged counts of 8 Plaintiff' s Second Amended Complaint were sufficient to withstand a rule 12( b)(6) motion. 9 Prior to the entry of this order the Parties, on August 27, 2013, filed a stipulated discovery 10
11 plan. It set deadlines for the disclosure of expert testimony and referenced but did not identify a
12 discovery cutoff deadline.
13 III. 14 Subsequent to Defendants Jeong's February 10, 2014, substitution of counsel , on March 15 14, 2014, Defendant Jeong filed a Motion to Amend Pleading . In their motion Defendants 16
17 request that they be allowed to specifically include an additional affirmative defense of bona
18 fide purchaser and two additional causes of action for ejectment and unjust enrichment. 19 Plaintiff and Defendants Kim did not file papers in opposition to Defendants Jeong's 20 request. 21
IV. 22
23 On March 14, 2014, Defendants Jeong filed a paper entitled, Notice of Withdrawal of
24 Consent to Previous Scheduling Order; Request for Scheduling Order Dates; and Proposed 25 Scheduling Order. In it Defendants Jeong assert and argue that because many of the dates in the 26 previous order have passed and in light of their new attorneys substitution of counsel , the prior 27
28 stipulation between the parties is no longer practicable. They assert that they have been unable
Page 3 of 6 I to reach a stipulation by the other Parties to this request and are accordingly proposing the entry 2 of a scheduling order and requesting that the Court assign appropriate dates to the specific 3 events. 4
Plaintiff and Defendants Kim did not file papers in opposition to Defendant' s Jeong's 5
6 request. Furthermore at the May 27, 2014 hearing, Defendants Jeong indicated that the Parties
7 had agreed to the dates as set forth in Defendants Jeong's proposed scheduling order. 8 V. 9 On May 22, 2014, Defendants Jeong filed an Ex Parte Application for Temporary 10 II Restraining Order and Order to Show Cause why a Preliminary Injunction should not Issue.
12 However at a further proceedings hearing on the June 23, 2014, that motion was withdrawn.
13 DISCUSSION 14 1. 15 Rule 15 of the Guam Rules of Civil Procedure governs the amendment of a party's 16
17 pleadings. Guam R . Civ. P. 15. It provides,
18 [a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no 19 responsive pleading is permitted and the action has not been placed upon the trial 20 calendar, the party may o amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by 21 written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the 22 time remaining for response to the original pleading or within 10 days after 23 service of the amended pleading, whichever period may be the longer, unless the court otherwise orders. 24
Id. Applying the above rule to the facts of this case Defendants Jeong's request is to be 25
26 analyzed under a "shall be freely granted when justice so requires " showing. Id. Defendants
27 Jeong assert that their grounds to support such a finding lie in their desire to cure a possible 28 pleading error where their First Amended Answer asserts facts demonstrating a bona fide
Page 4 of 6 I purchaser status but fails to specifically list it as an affirmative defense. Similarly Defendants 2 Jeong assert that their additional causes of action have been adequately noticed and are directly 3 linked to the bona fide purchaser defense such that justice requires their inclusion.
In light of the above and specifically the non-opposition of the Parties the Court finds that 5 6 the request to amend is sufficiently supported. Id. However in light of this case 's April 22,
7 2011, commencement and the aspirational goals of the Court ' s Administrative Rule 06-001 and 8 13-003, the Court cautions the Parties that the amendments shall not be considered justifiable 9 grounds for delaying the timely conclusion of this matter. Arashi & Co., Inc. v. Nakashima 10
11 Enterprises, Inc., 2005 Guam 21T 16 (factors which mitigate against leave to amend are undue
12 delay, bad faith or dilatory motive on the part of the movant).
13 II. 14 Rule 16 of the Guam Rules of Civil Procedure regulates the entry of scheduling orders in 15 any action pending before a court. Guam R. Civ. P. 16(a). It grants a court the discretion to 16
17 direct the expedited disposition of an action, control protracted case management, discourage
18 wasteful pretrial activities, require thorough pretrial preparation and facilitate settlement. Id. 19 Guam R. Civ. P. 16(a). It further allows the entry of an order that limits and establishes 20 deadlines for the : joiner of parties, filing of motions, amendment of pleadings, completion of 21
discovery and establishes dates for a final pretrial conference and trial . Id. (b). Once. such an 22
23 order has entered the rule further requires that prior to its amendment there be a showing of
24 good cause. Id. 25 Under the above standard and in consideration of length of time this matter has been 26 pending, time period previously stipulated for discovery, the Parties' August 27, 2013 27
28 stipulation and Defendants Jeong's paper and assertions, and the Guam Supreme Court's
Page 5 of 6 1 Administrative Rules 006-001 and 13-003, the Court finds the entry of the following dates and 2 deadlines necessary to a resolution of this matter: 3 1. The Parties' August 29, 2013 discovery plan is adopted and amended as follows: 4 2. All motions to join or add parties or claims may not be filed unless a showing of good cause 5
6 is made;
7 3. The discovery cut-off date (defined as the last day to file responses to discovery and complete 8 depositions) is September 15, 2014; 9 4. All discovery motions shall be filed on or before September 15, 2014; 10
11 5. All dispositive motions shall be filed on or before October 15, 2014;
12 6. A Pretrial Conference in this matter is set for November 18, 2014, at 11:00 a.m.
13 7. The Parties' pretrial materials, discovery materials, witness lists, designations, and exhibit 14 lists shall be filed 14 days prior to the trial set in this matter; 15 8. A two day trial by a jury of six is set to commence on December 1, 2014, at 1:30 p.m. 16
17 CONCLUSION
18 For the reasons set forth above Defendant Jeong's requests are Granted. 19
20 SO ORDERED , this l day of , 7a(_ 2014. 21
SERVICE VIA COURT BOX 24 I acknowledge that a copy of the original hereto was placed in the ONO B MICHAEL J. BORDALL 25 court box of. Judge, erior Court of Guam5 26 4 A* G Time: ID 27 Da 11; 28 DeputyCler , Superior Court o wam
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