2 202!i JUL 19 FM 2: 35 Cl Er.,, o- 'O""T 3 IN THE SUPERIOR COURT OF GUAM - .r1t, t· i.; vh I 4 liY=--··--1---- DONNA LAWREN CE, SPECIAL PROCEEDINGS N 1. SP0136-23 5 Petitioner, 6 vs. 7 DECISION AND ORDER DOUGLAS B. MOYLAN, as a Public Official Re: Respondents' GRCP Rule 12(b) Motion to 8 capacity as the elected ATTORNEY Dismiss the Amended Complaint GENERAL OF GUAM, JOSEPH GUTHRIE, 9 as a Public Official in the OFFICE OF THE ATTORNEY GENERAL OF GUAM, GARY ~O W.F. GUMATAQTAO, as a Public Official in the OFFICE OF T.HE ATTORNEY . ' ' 11 GENERAL OF GUAM, and D. GRAHAM BOTHA, as a Public Official in the OFFICE 12 OF THE ATTORNEY GENERAL OF GUAM
13 Respondents.
15 This matter came before the Honorable Arthur R. Barcinas on April 23, 2024 for a
16 hearing upon Respondents Douglas B. Moylan, Joseph Guthrie, and D. Graham Botha's
17 ("Respondents") GRCP Rule 12(b) Motion to Dismiss the Amended Complaint ("Motion").
18 Respondents were represented by Attorney William Pole. Plaintiff Donna Lawrence
19 ("Plaintiff') was represented by Attorney Jacqueline T. Terlaje. Upon consideration of the
20 parties' arguments, the Court DENIES the Motion.
21 BACKGROUND
22 On October 23, 2023, Petitioner filed a Complaint under the Sunshine Reform Act for
23 alleged failure of the Office of the Attorney General ("OAG") to disclose public documents
24 required by law. In the Complaint, Petitioner specifically requested that the OAG produce: Order Re: Motion to Dismiss Special Proceedings No. SP0136-23
1 (i) All OAG documents, including all electronic policies and procedures, concerning access to an employee's personnel file, maintenance of 2 OAG employee personnel files, records required to be kept and maintained, including but not limited to, all documents allowing an 3 employees' review of his/her own personnel file, all documents concerning release of copies of a personnel file and/or portions to an 4 employee, documents allowing access, review, and all documents concerning review and/or release of copies to third parties, including 5 OAG personnel; all documents concerning the nature and type of documents to be kept and maintained in an employee's OAG 6 personnel file, and all policies as to where and how the personnel file is to be kept and maintained (i.e. locked, filing cabinet, maintained 7 electronically, backups).
8 (ii) All documents, including electronic communications and documents, concernmg the persons and job title at OAG responsible for 9 maintaining, updating and storing an OAG employee's personnel file onsite and offsite, including all electronic documents and all electronic \ 10 personnel files/archived files, arid alt physical and online Backups and storage of stich files kept onsite and i:lffsite. · 11 (a) All documents concerning the duties and requirements of all persons, onsite and offsite, with access to and/or 12 responsible for, access, maintenance, storage, retention and release of records to an employee upon request and to all 13 other persons other than a requesting employee. (b) All documents concerning OAG worker's compensation 14 policies, notices and OAG record keeping and storage of all worker's compensation claims received by any and all 15 OAG employees for the period January I, 2023 to present; (c) All OAG documents and policies, including electronic 16 communications and documents, concerning the OAG's current grievance process and required steps, including but 17 not limited to, all documents adopting those policies, and all documents relating to access, maintenance and storage 18 of al OAG grievance documents made between January 1, 2023 to present. 19 (iii) All documents concerning OAG's maintenance, storage and retention 20 of an employee's personnel file, including all physical and electronic files, all methods of storage of an employee's personnel file, all means 21 of backups and archival (physical files, physical backups, online backups, cloud and other storage). 22 (iv) All OAG documents (including all electronic communications and 23 documents) concerning the OAG's keeping, maintenance, storage and retention of an electronic OAG employee personnel file. 24 Page 2 of 11 Order Re: Motion to Dismiss Special Proceedings No. SP0136-23
I (v) All OAG document retention policies, including hard copies and 2 online copies and backups, concerning the following: (a) An employee's personnel file at OAG; and 3 (b) Employee's work email accounts;
4 (vi) All documents concerning the OAG's authorized destruction of any and all OAG documents, including but not limited to personnel files, 5 for any reason.
6 (vii) All documents (including electronic documents and communications), between January I, 2023 to present, concerning OAG attorney time 7 sheets and record keeping to be submitted by OAG personnel to the Department of Administration (DOA) payroll. 8 (viii) All documents, including electronic communications, from any and all 9 OAG personnel to OAG attorneys in any and all OAG divisions, between January I, 2023 to present concerning any requirement of ' 10 OAG attorneys to sign itl and out on a daily, weekly or other bas.is. '
]I (ix) All documents, including electronic communications, as to the submittal of time sheets by or on behalf of an OAG classified attorney, 12 including all requirements as to any which requires review, signature and approval by an OAG attorney's supervisor, between January I, 13 2023 to present.
14 (x) All documents, including all electronic documents, and communications regarding IT between January I, 2023 to present. 15
I6 Mot., at 2-4.
17 Petitioner alleged that she had sought disclosure of the documents via email on April 29,
18 2023, and September 5, 2023, and submitted additional requests for status on April 30, 2023,
19 August 21, 2023, September 11, 2023, and September 21, 2023. Petitioner alleged the OAG
20 failed to produce any public documents in response.
21 On December 7, 2023, there being no responsive pleading filed by Respondents by that
22 date, Petitioner amended the Complaint to include another request for public documents under
23 the Sunshine Refonn Act. Petitioner alleged that, on November 8, 2023, she also requested
24 Page 3 of 11 Order Re: Motion to Dismiss Special Proceedings No. SP0136-23
I disclosure of distinct public records unrelated to her initial requests, specifically personnel
2 documents related to contracts and special attorneys general. Petitioner alleged the OAG again
3 produced no documents, and that the OAG instead declared it was unable to discuss Petitioner's
4 requests directly with her because she was represented by counsel.
5 On February I, 2024, Respondents filed the instant Motion, requesting that the Court
6 dismiss the action "pursuant to Guam Rules of Civil Procedure ("GRCP") l 2(b )(I) and
7 12(b)(6)." Mot., at I. In the Motion, Respondents argue that the Court allegedly lacks subject
8 matter jurisdiction due to ongoing litigation and Petitioner's alleged failure to provide a proper
9 summons, that the Court allegedly lacks personal jurisdiction due to insufficient service, that
IO arty request submitted under the Freedo~ of'Information Act ("FOIA") is moot du~ to existing
11 litigation, and that this case is ripe for dismissal under Guam Rules of Civil Procedure
12 ("GRCP") 12(b)(6) because the ongoing litigation precludes Petitioner from alleging a legally
13 cognizable claim.
14 On February 29, 2024, Petitioner opposed, argumg that the Court does not lack
15 jurisdiction based on Respondents' claims of defective summons, and that her Complaint is not
16 moot based on her independent right to seek grievance and appeal her adverse action before the
17 Guam Civil Service Commission ("CSC"),
18 On March 15, 2024, Respondents replied, arguing that Petitioner's claim regarding the
19 summons is both defective and misleading, that a plain reading of the FOIA statute provides for
20 a liberal reading of exempt disclosure of records, and that Petitioner allegedly does not explain
21 why the issues should not be considered moot.
22 On April 24, 2024, the Court heard arguments from both parties on the matter and took
23 the matter under advisement
24 Page4 of 11 Order Re: Motion to Dismiss Special Proceedings No. SP0 136-23
1 DISCUSSION
2 Respondents expressly state in their introduction that they are bringing this Motion to
3 Dismiss "pursuant to GRCP 12(b)(l) and 12(b)(6)." Mot., at 1. However, they later refer to a
4 "Lack of Personnel[ sic] Jurisdiction due to Insufficient Service," which the Court will take as
5 an argument pursuant to GRCP 12(b)(2), for lack of personal jurisdiction. Mot., at 4. Thus, the
6 Court will also include GRCP 12(b)(2) in its analysis.
7 I. Legal Standard
8 Guam law allows that certain defenses to a claim for relief may be made by motion,
9 including: "(l) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the
10 perso~, ... :f and] (6) failure to state a claim upon ~hich'relief can be granted/' GRCP 12(b).
11 GRCP Rule 12(b)(l) allows a defendant to raise a defense by motion of lack of
12 jurisdiction over the subject matter. Id.
13 In considering GRCP l 2(b )(2), Guam courts may exercise jurisdiction over non-resident
14 defendants on any basis not inconsistent with the Organic Act of Guam or the Constitution of
15 the United States. 7 GCA § 14109.
16 In ruling on a motion to dismiss under GRCP 12(b)(6), the Court must accept all the
17 well-pleaded facts as true, construe the pleading in the light most favorable to the non-moving
18 party, and resolve all doubts in the non-moving party's favor. Cruz v. Cruz, 2023 Guam 20 ,i 10.
19 Guam law requires only a short and plain statement of the claim showing entitlement to relief.
20 Ukau v. Wang, 2016 Guam 26 ,i 52. Whether a plaintiff pleaded or proved his claim by
21 preponderance of the evidence is immaterial at the 12(b)(6) phase; Plaintiff merely has to state
22 sufficient facts to place Defendant on notice of his claim. Id. ,i 53. A plaintiffs obligation to
23 provide the grounds of his entitlement to relief "requires more than labels and conclusions, and
24 Page 5 of 11 Order Re: Motion to Dismiss Special Proceedings No. SP0136-23
1 a formulaic recitation of the elements of a cause of action will not do," but beyond this, the
2 Supreme Court has declined to apply a heightened plausibility standard to local civil
3 proceedings, and it imposes only a liberal notice pleading requirement. Id. ,r,r 26, 33. Dismissal
4 for failure to state a claim is appropriate only if it appears beyond doubt that the non-moving
5 party can prove no set of facts in support of his claim which would entitle him to relief. Cruz,
6 2023 Guam 20 ,r 10. In ruling on a 12(b)(6) motion, the Court's consideration is limited to the
7 Complaint, written instruments attached to the complaint as exhibits, statements or documents
8 incorporated in the complaint by reference, and documents on which the complaint heavily
9 relies. Core Tech Int 'l Corp. v. Hanil Eng. & Cons tr. Co., 2010 Guam 15 ,r 29.
10 II. GRCP f2(b)(l)
11 Respondents initially state that they are bringing this Motion pursuant to 12(b)(l), which
12 allows a party to "raise a defense of lack of jurisdiction over the subject matter by Motion."
13 Mot., at 4. Respondents cite Supreme Court precedent for the proposition that "[s]tanding is a
14 threshold issue which courts must address before any other inquiry." Id. (citing Guam Imaging
15 Consultants, Inc. v. Guam Mem 'l Hosp: Auth., 2004 Guam 15 ,r 17).
16 Respondents then state that Petitioner failed to provide a proper summons and that, by
17 providing a Litigation Hold Notice, Petitioner joined the Respondents' position that litigation
18 was ongoing. According to Respondents, "[l]itigation comes with its own exclusive methods for
19 obtaining evidence or information." Mot., at 4. Petitioner argues that the OAG erred in
20 constituting their prior interactions as "pending litigation," and that such position is not
21 supported by Guam law. Opp., at 5. Petitioner specifically states that, "[w]hile Respondents
22 refer to Petitioner's employee grievances between April and September 2023, Respondents have
23 failed not only to identify and document that relates to 'pending litigation,' but to specifically
24 Page 6 of 11 Order Re: Motion to Dismiss Special Proceedings No. SP0136-23
I identify the pending litigation that they are seeking to withhold public documents." Id., at 6.
2 Petitioner asserts that there is no exception under the Sunshine Reform Act for a request of
3 documents in anticipation of litigation. Id. Petitioner further argues that, "while referring to the
4 anticipated litigation, as ["]anticipatory," Respondents have conceded that at the time of the
5 Sunshine Reform Act Request no litigation was in existence until the filing of the Complaint
6 herein." Id.
7 In anticipation of potential litigation, "[t]he common law imposes the obligation to
8 preserve evidence from the moment that litigation is reasonably anticipated," not when
9 litigation is already ongoing. Apple Inc. v. Samsung Electronics Co., Ltd., 881 F.Supp.2d 1132,
10 1145 (l'J.D. Cal. 2012) A fucire litigant's duty.to pteserve evidence ~rises no later than the dat'e
11 when opposing counsel requests by letter to preserve relevant evidence. Id.
12 Pursuant to 5 GCA § 10108, a party is generally not required to disclose "[r]ecords
13 pertaining to pending litigation to which the agency is a party, until the pending litigation has
14 been finally adjudicated or otherwise settled."
15 The Court agrees with Petitioner that Respondents appear to have conflated potential
16 litigation with "pending litigation." 5 GCA § 10102, governing definitions for the Sunshine
17 Reform Act, does not specifically define "pending litigation," but the term is generally
18 understood in the Guam Code Annotated to mean cases that are currently before the Court. See,
19 e.g., 7 GCA § l 1402(d) (stating that, for purposes of actions for injury, illness, or wrongful
20 death, pending litigation "shall include any action that has been filed in the courts of Guam").
21 Upon the Court's review of the record, no issue in this case was before this Court or any court
22 when Petitioner filed her Complaint, and Respondents do not refer to any case in the state or
23 federal courts of Guam that would preclude Petitioner from seeking the aforementioned
24 Page 7 of 11 Order Re: Motion to Dismiss Special Proceedings No. SP0136-23
1 documents. Because the controversy between Petitioner and Respondents did not constitute
2 "pending litigation" until it was filed before the Court, the Court finds that the documents are
3 not exempt from discovery under 5 GCA § 10108.
4 Further, the Court does not find that Petitioner's Litigation Hold Notice is sufficient
5 evidence of any ongoing litigation, as it merely put Respondents on notice of potential litigation
6 and their duty to preserve any evidence relevant to that future litigation. Accordingly, the Court
7 does not find that Respondents' claim for lack of standing has merit.
8 a. Petitioner's request under the Sunshine Act is not moot.
9 Respondents also argue for lack of subject matter jurisdiction on the grounds that
lo Petitioner's ·complaint is allegedly m◊ot. Respondents asse'rt that the parties "are.in litigation
11 over multiple issues and all FOIA requests are asking for information that is or could be
12 considered discovery in the multiple forums in which parties are litigating in." Mot., at 5.
13 Respondents further allege that, when Petitioner provided her request for a litigation hold, any
14 request to the Court to demand production of documents became subject to the exemption under
15 5 GCA § 10108(a). Petitioner again argues that Respondents are conflating potential litigation
16 with actual or pending litigation.
17 Again, because the Court has determined that said documents are not exempt under 5
18 GCA § 10108(a), the Court also finds that Petitioner's argument for mootness is without merit.
19 III. GRCP 12(b)(2)
20 While Respondents do not specifically cite GRCP 12(b)(2), they raise the issue of a
21 "Lack of Personnel[sic] Jurisdiction due to Insufficient Service." Mot., at 4. On this issue,
22 Respondents state that, pursuant to GRCP 12(a), "[t]he government of Guam or an officer or
23 agency thereof shall serve an answer to the complaint, or to a cross-claim, or a reply to a
24 Page 8 of 11 Order Re: Motion to Dismiss Special Proceedings No. SP0I36-23
1 counterclaim, within 60 days after the service upon the Attorney General or appropriate agency
2 counsel of the pleading in which the claim is asserted." Mot., Id. Respondents assert that
3 Petitioner provided them with a summons giving them twenty (20) days to respond, which is the
4 response time for non-government defendants. Id.
5 In her Opposition, Petitioner states that she provided Respondents with both a twenty
6 (20) and sixty (60) day summons. Opp., at 5. Petitioner further argues that the time to respond
7 to a Sunshine Reform Act request is determined by the Court, not the GRCP, emphasizing that
8 "[ t]he times for responsive pleadings and for hearings in these proceedings shall be set by the
9 judge of the Court with the object of securing a decision as to these matters at the earliest
10 possible time." Opp., at•'5 (quoting 5 GCA /l !0lll(b)). Petition~r contends that,-bedmse
11 Respondents have entered their appearance in these proceedings, the Court has been granted the
12 statutory authority to set a time for responsive pleadings and shorten the time frames allowed by
13 GRCP 12(a). Id.
14 Again, the Court agrees with Petitioner that, in the context of a Sunshine Reform Act
15 proceeding, the times prescribed by GRCP 12(a) do not apply and it falls to the Court to
16 determine the times for responsive pleadings. Thus, the Court finds that Petitioner's service to
17 Respondents was not insufficient, and the Court retains personal jurisdiction over this matter.
18 IV. GRCP 12(b)(6)
19 Finally, Respondents argue that this matter should be dismissed under GRCP 12(b)(6),
20 on the grounds that Petitioner has allegedly "co-mingled personal complaints with alleged
21 requests for documents under [the Sunshine Reform Act]" and that "[t]he response of the
22 Respondents was legally sufficient under the Sunshine Act." Mot., at 7. In her Opposition,
23 Petitioner stated that, under the Sunshine Reform Act, there is no exception for the OAG to
24 Page 9 of 11 Order Re: Motion to Dismiss Special Proceedings No. SP0136-23
1 refuse compliance with a request for public documents because "[ e]very person has the right to
2 inspect and take a copy of any public document on Guam, except as otherwise expressly
3 prohibited in law," and the Sunshine Reform Act "does not allow limitations on access to a
4 public record based upon the purpose for which the record is being requested, if the record is
5 otherwise subject to disclosure." Opp. at 6 (citing 5 GCA §§ 10103, 10110). In their Reply,
6 Respondents argue only that they "reasonably interpreted [5 GCA § 10108, the statute
7 governing limitation on the right of inspection] to protect all requested information from
8 disclosure." Reply, at 5.
9 In ruling on a motion to dismiss under GRCP 12(b)(6), the Court must accept all the ) ' 10 well-ple~dedYacts as true, con.strue the pleading in the light most favorab.le to' the non-moving·
11 party, and resolve all doubts in the non-moving party's favor. Cruz v. Cruz, 2023 Guam 20 ,r 10.
12 Guam law requires only a short and plain statement of the claim showing entitlement to relief.
13 Ukau v. Wang, 2016 Guam 26 ,r 52. Dismissal for failure to state a claim is appropriate only ifit
14 appears beyond doubt that the non-moving party can prove no set of facts in support of his
15 claim which would entitle him to relief. Cruz, 2023 Guam 20 ,r 10.
16 Reading the Complaint in the light most favorable to Petitioner as the non-movant, the
17 Court does not find that dismissal under 12(b)(6) is appropriate. The law states that Petitioner's
18 intent in seeking documents under the Sunshine Reform Act is immaterial, and despite
19 Respondents' protests that they sufficiently answered Petitioner's Sunshine Reform Act
20 requests, the Court finds this disingenuous at best. Respondents stated their position that, "[a]s
21 Fonner Deputy Attorney General Gary W.F. Gumataotao indicated in his response pursuant to
22 the Sunshine Reform Act, anything involving litigation, personnel matters, or any other
23 privilege (such as Attorney Work Product) is[sic] allowed under existing law is exempt from a
24 Page 10 of 11 Order Re: Motion to Dismiss Special Proceedings No. SP0136-23
1 FOIA request." Opp. at 9. However, upon a review of the documents sought by Petitioner, she
2 does not seek any privileged information or personnel material, merely policy and procedural
3 information regarding how such material was handled, which is a very different matter entirely.
4 At the very least, the Court finds that it does not appear beyond doubt that Petitioner
5 could prove no set of facts in support of her claim which would entitle her to relief.
6 Accordingly, the Court also finds no merit in Respondents' 12(b)(6) argument.
7 CONCLUSION
8 Based on the foregoing, the Court hereby DENIES Respondents' Motion to Dismiss.
JUL :- '10 IT IS Sb ORDERED - - - ~1-9 - 2024- - ~ 11
12 BLJj:'ARTHUR R. BARCINAS 13 Judge, Superior Court of Guam
15 SERVICE VIA EMAlli I ackrlrN· .. -:q;; :,:~: an electronic 16 copy or the or1g111al was e-mailed to;
17 vlf/ldtlf. f61e, .JtC~ 18 J~ 9 202( Gt;4-fN :Date _Time:~,.;a..:;;/'"1
19 &iM-a, lK, 1le90h ",Deputy Clerk. Superior court of Guam / . -·
24 Page 11 of 11