People v. Guam Memorial Hospital

Opinion

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5 IN THE SUPERIOR COURT OF GUAM 6

7 MOONG. YUN, ) CIVIL CASE NO. CVI263-04 ) 8 Plaintiff, ) ) DECISION AND ORDER 9 v. ) 10 ) GUAM MEMORIAL HOSPITAL ) 11 AUTHORITY, and GOVERNMENT OF ) ) 13 Defendants. ) 14

16 This matter came before the HONORABLE ARTHUR R. BARCINAS on the 2nd day 17 of September, 2011, on Defendant GMHA's Renewed Motion for Judgment on the Pleadings or 18 in the Alternative Motion to Dismiss Amended Complaint for Unpaid Wages. Attorney Ricardo 19

20 D. Bordallo represented the Plaintiff, and Assistant Attorney General Robert M. Weinberg was

21 present for the Defendants. The Court now issues the following Decision and Order on the 22 matter. 23 PROCEDURAL HISTORY 24 On December 13, 2004, the Plaintiff filed a complaint alleging unnamed "claims" for 25

26 damages. The Court issued a Decision and Order on April 11, 2011, noting that the Plaintiff's

27 causes of action were not clear, and permitting the Plaintiff to amend the complaint to clearly 28 set forth causes of action. On June 10, 2011, the Plaintiff filed an Amended Complaint for Decision and Order Civil Case No. CV1263-04

Unpaid Wages. In this amended complaint the Plaintiff again makes many factual assertions. He

2 alleges that he was employed by the Defendant, Guam Memorial Hospital Authority, as an

3 anesthesiologist, and resigned from this employment on June 15,2001. Plaintiff alleges that he 4 was earning $95.00 per hour at the time of his resignation. He further alleges that when he 5 resigned, he had accumulated 448 hours of annual leave, and citing to Exhibit C attached to the 6 complaint, states that he had accumulated "two thousand one hundred fifty-three and 3111 00 7

8 (2,153.31)" hours of compensatory time earned. Yun v. GMHA and Government of Guam,

9 Civil Case No. CV1263-04, PI.'s Am. CompI. For Unpaid Wages, p. 2, ~ 8. 10 On these factual bases, the Plaintiff asks the Court to award "damages" in the amount of 11 448 hours multiplied by $95.00 per hour for annual leave; 2,153.31 hours multiplied by $95.00 12

per hour in compensatory time earned; interest as provided by law; costs and attorney's fees; 13

14 and any further relief the Court may deem proper. Again, it is not entirely clear what causes of

15 action are alleged. The amended complaint contains no "short and plain statement of the claim" 16 as required under GRCP Rule 8(a)(2). Pursuant to 7 GCA § 1114, "[a] civil action is 17 prosecuted by one party against another for the enforcement or protection of a right, or the 18

19 redress or prevention of a wrong ...." 7 GCA § 1114 (2012) (emphases added). "A civil

20 action arises out of either an obligation or an injury." 7 GCA § 1108 (2012). "An obligation is 21 a legal duty by which one person is bound to do a certain thing and arises from contract or by 22 operation of law." 7 GCA § 1109 (2012). "An injury is either an injury to the person or the 23 property. " 7 GCA § 1110(a) (2012). There is no concise, direct statement of either the 24

25 obligation or injury which constitutes the basis for Plaintiff's alleged entitlement to damages.

26 Despite the Plaintiff's failure to explicitly label its cause(s) of action, from a 27 comprehensive reading of the complaint, it appears that the amended complaint contains 28

Page 201'21 Decision and Order Civil Case No. CV1263-04

sufficient facts from which the Court may find that a breach of contract claim for compensation

2 due under an employment agreement, and in the alternative, a claim for the same unpaid wages

3 in violation of the Guam Minimum Wage and Hour Act (hereinafter "GMWHA") have been 4 alleged. See Taitano v. Calvo Finance Corp., 2008 Guam 12, ~~ 11-12. Thus, the Court will 5 proceed under the supposition that the Plaintiff has set forth a breach of contract claim and 6

alternatively, a claim for unpaid wages under the GMWHA. 7

8 Although it answered the Plaintiffs previous complaint, the Defendants have not filed

9 an answer to the Plaintiffs Amended Complaint. Instead, on July 14, 2011, approximately 33 10 days after the filing of the Amended Complaint, Defendant GMHA filed a Renewed Motion for 11 Judgment on the Pleadings or in the Alternative Motion to Dismiss Amended Complaint for 12 Unpaid Wages alleging that the Plaintiff has still failed to state a cause of action, and that the 13

14 Court was deprived of jurisdiction to hear the Plaintiffs claims due to the failure to follow the

15 requirements of the Government Claims Act, and the applicable statute(s) of limitations. The 16 Defendant moves for judgment/dismissal based on these arguments. The Plaintiff filed an 17 opposition to this motion on August 19, 2011. 18

19 DISCUSSION

20 !. A!c!. _ _T~i!;!om~e",-,l~in""e""s",,-s..!::aO!.!n~d....!P....!r.::=.oJ;::p~ri.::=.e.!:.ity~of~D,-",e~fe:::.!n.!C:d::::a~nC!:..t-",G,,-=M=:::..H~A~'s:. .;M;.:.=o:.!;;ti,-"o=n 21 On April 11, 2011, the Court issued its Decision and Order granting leave to the Plaintiff 22 to amend its complaint, and thereupon granting leave to the Defendant to renew any applicable 23 defenses previously raised, stating: " ... the Court will allow the Defendant the opportunity to 24

25 renew any part of this motion which is applicable to the amended complaint, by filing a new

26 motion tailored to the amended complaint, so that the Court may address the remaining issue of 27 actual jurisdiction under Rules 12( c), (h)(3) and (b)(l)." Yun, CVI263-04, Decision and 28

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Order, p. 18, lines 15-19 (filed April 11,2011). Apparently, Defendant GMHA has taken this

2 statement as an invitation to make an untimely filing.

3 At no time did the Court grant leave to Defendant GMHA to file its motion in an 4 untimely fashion. The Court has previously admonished Defendant GMHA for its untimeliness 5 in filing its motions to dismiss, and the procedural defects attendant with the motions. 6 Again, Defendant GMHA has improperly and untimely filed its motion under Rule 12, 7

8 labeling it as a renewed "Motion for Judgment on the Pleadings." Rule 12(c) of the Guam Rules

9 of Civil Procedure permits motions for 'judgment on the pleadings" to be made after the 10 pleadings are closed. However, the pleadings have not closed, as neither of the Defendants filed 11 an answer to the amended complaint on or before the expiration of twenty days. As the Court 12

13 has previously explained to Defendant GMHA:

14 The significant differences between motions under Rule 12(c) and motions under Rule 12(b) are that: (1) motions under Rule 12(b) "shall be made before 15 pleading," while motions under Rule 12(c) must be made "[a]fter the pleadings 16 have closed"; and (2) the court's remedy is to grant judgment on the merits pursuant to a motion made under Rule 12(c), rather than a simple dismissal of the 17 case, as under Rule 12(b), because the defendant has subjected himselflherselfto the personal jurisdiction of the court by answering the complaint and closing the 18 pleadings. 19 Yun, CV1263-04, Decision and Order p.3, lines 18-24 (filed December 21,2009). 20 Defendant GMHA has not subjected itself to the personal jurisdiction of the Court by 21

22 filing an answer. Thus, Rule 12(c) is inapplicable. Pursuant to Rule 12 of the Guam Rules of

23 Civil Procedure, "a defendant shall serve an answer within 20 days after the service of the 24 summons and complaint upon that defendant," and a motion made asserting any of the seven 25 defenses allowed to be made by motion under subsection (b) "shall be made before pleading," 26 because the service of a Rule 12(b) motion alters the periods of time allowed to file an answer 27

28 and other responsive pleadings. GRCP Rule 12(a) and (b)(2012). Through Rule 12(h), Rule

Page 4 of21 Decision and Order Civil Case No. CV1263-04

12(C) may be used to raise some of the defenses enumerated in Rule 12(b) after the pleadings

2 have closed, despite the general requirement of Rule 12(b) that those defenses be raised before a

3 responsive pleading is filed; however, this assumes that the Defendant has properly filed an 4 answer which asserted those defenses such that the defenses are not waived. Because the 5 Defendant did not timely file an answer, the Defendant was required to file a motion to dismiss 6 pursuant to Rule 12(b), in lieu of an answer, "before pleading," i.e., before the expiration of 7

8 twenty days after service of the amended complaint.

9 Defendant GMHA neither answered within twenty days, nor filed its motion asserting its 10 defenses within twenty days of service of the amended complaint. Consequently, the Court is 11 expending extrajudicial resources in order to determine whether Defendant GMHA's motion is 12

13 properly before the Court. GRCP Rule 6(b)(2) provides in relevant part:

14 Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the 15 court for cause shown may at any time in its discretion .... (2) upon motion made 16 after the expiration of the specified time period permit the act to be done where the failure to act was the result of excusable neglect .... 17 GRCP Rule 6(b)(2)(2012). 18

19 Rule 6(b) grants a court wide discretion to allow additional time when a request is made

20 prior to the expiration of the time period set by the court or prescribed by the Rules of Civil 21 Procedure. GRCP Rule 6(b)(1). However, when the request is made after the expiration of the 22 time period set by the court or prescribed by the Rules of Civil Procedure, Rule 6(b) requires 23 that a party must show "excusable neglect" in failing to timely file the request. GRCP Rule 24

25 6(b)(2). Additionally, a court may exercise its discretion under Rule 6(b) only for "cause

26 shown," thus requiring that a party requesting an enlargement of time after the expiration of the 27

Page 5 of21 Decision and Order Civil Case No. CV1263-04

time set must demonstrate both cause and excusable neglect in order to justify the issuance of an

2 order granting leave. Id.

3 Defendant GMHA's motion was not filed before the expiration of the 20 days under 4 Rule 12. Although the motion was filed after the expiration of twenty days, the Defendant has 5 provided no explanation for the lateness of the motion. Moreover, Defendant has never 6 requested leave for an extension to file its untimely motion under Rule 6(b), nor has Defendant 7

8 GMHA cited any authority that would constitute "cause," that is, justification for the motion's

9 lateness within the meaning of Rule 6. The Defendant further proffered no showing of 10 "excusable neglect" when it filed the motion on July 14, 2011, without requesting leave of the 11 Court. Therefore, the motion is untimely. 12 Defendant's Motion to Dismiss is untimely under Rule 12 and an extension was neither 13

14 requested nor justified by Defendant GMHA under Rule 6(b) of the Guam Rules of Civil

15 Procedure, resulting in a violation of both rules. 16 Under General Rule 2.1; 17 The violation of or failure to conform to ... the Guam Rules of Civil Procedure or 18 the Local Rules of the Superior Court of Guam-Civil Rules shall subject the 19 offending party or counsel to such penalties, including monetary sanctions and/or the imposition of costs and attorney's fees to opposing counsel, as the Court may 20 deem appropriate under the circumstances. 21 Local Rules of the Superior Court of Guam, GR 2.1 (2012). 22 Previously, on October 28, 2009, the Court issued an order to show cause against 23 Defendant GMHA, stating as its basis, " ... the Defendants filed a Motion to Dismiss without a 24

25 request for an extension of time and without an explanation of good cause and excusable

26 neglect." Yun, CVI263-04, Order to Show Cause, p. 2, lines 12-14 (filed October 28, 2009). 27 On December 21, 2009, after hearing arguments on the Order to Show Cause, the Court 28

Page 6 of21 Decision and Order Civil Case No. CV1263-04

detennined it would not find Defendant GMHA in contempt of Court, in its discretion.

2 However, the Court found a violation of the rules, and held that it would not accept the

3 defective and untimely motion, instead instructing Defendant GMHA to request leave and file a 4 new, confonning motion. 5 Defendant GMHA has repeated its previous error. Because this is Defendant GMHA's 6 second violation of the Guam Rules of Civil Procedure concerning both the filing of a 7

8 procedurally incorrect and untimely motion under GRCP Rule 12, and the failure to timely

9 request an extension or leave of Court under GRCP Rule 6, the Court will issue sanctions under lO GR Rule 2.1 against Defendant GMHA in the amount of Plaintiffs reasonable attorney's fees 11 and costs incurred in the filing of both the amended complaint and the opposition to the 12

13 renewed motion for judgment on the pleadings.

14 .=B:. .:. _---'S::::.:u:!.:b~i~e""ct"--M=a"-"tt!:-"e:.!..r..!:.J~u:!..!ri",-sd"",i!.:::c~ti""o""nJ:!..!S:::..!t::!:!a",-,tu",,t:=::::e(l;s"..L)-"o:.!c.f...!:L::!cim=it!:.!:a~ti~o=ns 15 Although Defendant GMHA failed to timely file an answer or its motion, or timely 16 request an extension of time to file the motion, the Court may sua sponte review the issue of 17 subject matter jurisdiction at any time. Rule 12(h)(3) allows the Court to examine a challenge 18

19 to the court's subject matter jurisdiction at any time, using the standard of Rule 12(b)(1). GRCP

20 Rule 12(h)(3), see also U.S. v. New Silver Palace Restaurant, Inc., 810 F. Supp. 440, 441 21 (E.D.N.Y.1992) (citing 5A Wright & Miller, Federal Practice and Procedure, §1367 at 515-16 22 (1990)); and Quitugua v. Flores, 2004 Guam 19 ~ 31, n.12. 23 Defendant GMHA asserts that if the Plaintiffs claims rely upon the existence of some 24

25 type of implied employment contract, the Plaintiff has failed to establish subject matter

26 jurisdiction in the Superior Court of Guam because he has failed to file a government claim 27 under the Government Claims Act. Further, this Defendant asserts that even if the Court 28

Page 70f21 Decision and Order Civil Case No. CV1263-04

assumes that a direct action for unpaid wages is permitted under the GMWHA, and that the

2 Plaintiff was not required to file a government claim under the Government Claims Act, this

3 particular suit is barred by the applicable statute of limitations and the GMWHA itself, because 4 the Plaintiff s request for compensation consists only of compensatory time earned in lieu of 5 overtime pay, rather than wages earned for work performed. 6 In the interest of judicial economy, the court will analyze the Defendant's arguments 7

8 under the standard for Rules 12(h)(3) and 12(b)(1), and address the merits of these claims

9 regarding subject matter jurisdiction. Under both Rule 12(h)(3) and Rule 12(b)(1), for the 10 purposes of determining the issue, all of the Plaintiff s well plead allegations of standing must 11 be taken as true, and the Court will ignore any factual disputes in favor of the pleadings set forth 12

by the Plaintiff. National Metropolitan Bank v. U.S., 323 U.S. 454, 457 (1945); Ventress v. 13

14 Japan Airlines, 486 F.3d 1111, 1114 (9th Cir. 2007); see also Gibbs v. Buck, 307 U.S. 66, 72

15 (1939); Cramer v. Skinner, 931 F.2d 1020, 1025 (5th Cir. 1991), accord Scheuer v. Rhodes, 416 16 U.S.232, 236 (1974); and Smith v. Gross, 604 F.2d 639, 641, n.l (9th Cir. 1979). 17 According to Plaintiffs Amended Complaint for Unpaid Wages, "Plaintiff Yun seeks 18

19 the unpaid wages earned and due Plaintiff Yun in the form of compensatory time earned, as

20 expressly reflected and founded upon the written instruments described herein, and as expressly 21 authorized by 22 G.C.A. § 3221." Yun, CV1263-04, Am. Compl. For Unpaid Wages, p. 5, ~ 27 22 (filed June 10,2011). The first question regarding the Plaintiffs standing to maintain this suit 23 concerns whether the Plaintiff was required to file a government claim for wages and 24

25 compensation owed him upon his resignation from GMHA in order to maintain a breach of

26 contract action on an employment contract (whether implied, express or other quasi-contract) 27 against GMHA and the Governnlent of Guam. The second question is whether he may 28

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alternatively maintain a direct action against these Defendants under Guam's Labor Standards

2 Act (adopted from the Federal Labor Standards Act) also known as the Guam Minimum Wage

3 and Hour Act (GMWHA), for "unpaid wages" allegedly due for compensatory time earned. 4 1) Subject Matter Jurisdiction Over Breach of Contract Action 5 The Plaintiff has previously framed the question before the Court as, "whether an action 6 for breach of contract by a non-classified employee of GMHA for unpaid wages is subject to the 7

8 Government Claims Act, 5 G.C.A. §6102, et. al. (,Claims Act')." Yun, CV1263-04, Pl.'s Mem.

9 of Points and Authorities in Opp. to Def.'s Mot. for J. on the Pleadings, p. 3, ~1 (filed March 19, 10 2010). Defendant GMHA agrees that this is the primary question before the Court, and argues 11 that under the case of Guam Police Dept. v. Superior Court of Guam, 2011 Guam 8, the 12 Plaintiff is prohibited from maintaining a breach of contract action because he did not timely 13

14 file a government claim. 15 In determining the subject matter jurisdiction of the Court over the breach of contract 16 claim, the Court starts with the plain language of 4 GCA §4102(a), regarding the classification 17 of public or governmental employees. It states in relevant portion: "[t]he unclassified service 18

19 shall include the positions of: (13) physicians and health care administrators employed at the

20 Guam Memorial Hospital Authority .... " 4 GCA §4102(a)(2012). It is undisputed in this case 21 that the Plaintiff was a physician practicing anesthesiology at GMHA when he earned the 22 disputed compensation. Therefore, by statute, he was an unclassified employee. 23 Two statutes generally prohibit the government from giving employment contracts to 24

25 unclassified employees. The first statute provides in part:

26 No contract of employment shall be entered into between the government of Guam and any employee or officer in the unclassified service within the 27 government of Guam unless such employment contract is specifically permitted 28 by law or is for a physician or dentist. Such employment shall be effected through

Page 9 of21 Decision and Order Civil Case No. CV1263-04

the standard form of personnel action. This Section shall not affect the ability of the government of Guam to contract for temporary services or for specific 2 contracts not involving an employment relationship with the government of Guam, but shall apply to a contract which is essentially a contract for full-time 3 personal services .... 4 4 GCA § 2103.16 (2012)(emphasis added). 5 The second provides: 6 No contract of employment shall be entered into between any employee, in the 7 unclassified service within the government of Guam unless such employment 8 contract is specifically permitted by law. Such employment shall be effected through the standard form of personnel action. This Section shall not affect the 9 ability of the Government to contract for temporary services or for specific contracts not involving an employment relationship with the Government. 10

11 Title 4 GCA § 2107 (2012)(emphasis added).

12 Both statutes prohibit contractual hiring of unclassified employees unless "specifically 13 permitted by law," and the first statute particularly singles out physicians and dentists as 14 unclassified employees who are "specifically permitted" a contract. Further, employee contracts 15

16 are not always required to be in writing. See 18 GCA § 86106. These statutes indicate that an

17 employment contract may exist between the Government of Guam and a physician in its

18 employ. 19 In this case, the Plaintiff cannot produce an express employment contract. However, he 20 has produced the personnel action documents hiring him as an exempt employee, and he claims 21

22 that these documents establish a contractual obligation between him and the Defendants.

23 Although the question of whether an implied contract between the Government of Guam and an 24 unclassified employee may exist on the basis of personnel actions has not yet been answered by 25 the Supreme Court of Guam, that court has provided some guidance on the issue: 26 When the Government of Guam enters into employment contracts which are 27 outside the merit system, such as those government positions that are hired under 28 4 GCA § 4102(a) (enumerating the positions in the Government of Guam which

Page 10 of21 Decision and Order Civil Case No. CV1263-04

are by law unclassified), these may well be contracts to which the Government Claims Act may apply. This is a question we save for another day and is not the 2 case before us.

3 Limtiaco v. Guam Fire Dept., 2007 Guam 10 ~ 41. 4 The Supreme Court reasoned: 5 Because unclassified jobs are not within the merit system as referenced in the 6 Organic Act, these jobs may well be characterized as contracts, depending on the factual circumstances. Therefore, the holding made herein that the claims of 7 classified employees do not fall under the Government Claims Act does not 8 prevent us from concluding in a future case that an unclassified position is a contract to which the Government Claims Act may apply. The issue whether the 9 Government Claims Act applies to contracts between the government and its non- classified contract employees, too, is not entertained in our ruling herein. 10

11 Id. at ~ 41, n. 8. 12 Perhaps more persuasively, the District Court of Guam has held that a personnel action 13 between an unclassified employee and the Government of Guam constitutes a contractual 14 obligation: "[t]he record supports the court's determination that Blaz was an employee of the 15

16 University. Blaz had been working there and receiving compensation for his services. In

17 addition, Cruz and Blaz both signed the 'Notification of Personnel Action' form which sets out

18 the essential terms of Blaz's employment. Defendants have given no reason why this form does 19 not represent a contractual commitment." Blaz v. Cruz, Civ. Appeal No. 84-0014A, 1985 WL 20 56592 at *4 (D. Guam App. Div. April 29, 1985). 21

22 Based upon these precedents and the assertions of both the Plaintiff and the Defendant

23 GMHA, the Court will assume that the well-plead allegations of the amended complaint are 24 true, and that the Plaintiff's claim for unpaid wages is based upon a contractual employment 25 obligation between the Plaintiff and Defendant GMHA. Under this set of circumstances, it is 26 apparent that the Court does not have subject matter jurisdiction over the Plaintiff's contract 27

28 claim.

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In the case of Guam Police Dept. v. Superior Court of Guam, 2011 Guam 8, the

2 Supreme Court of Guam found that a party seeking to file suit to collect unpaid fees for services

3 provided under a contractual obligation with the Government of Guam was barred by the 4 defense of sovereign immunity, and the Superior Court of Guam was deprived of subject matter 5 jurisdiction to entertain the suit, because the party did not timely file its claim with the Attorney 6

7 General's office under 5 GCA § 6106( a) of Guam's Government Claims Act.

8 The court explained that sovereign immunity is the default defense when claims against 9 the government are raised, unless it has been explicitly waived by compliance with statutory 10 prerequisites providing for such waiver: 11 "Sovereign immunity can only be waived by duly enacted legislation [and] absent 12 such legislation, the Government cannot be sued." Newby v. Gov't of Guam, 2010 13 Guam 4 ~ 31. Sovereign immunity is explicitly waived by statute for certain governmental actions that are contractual in nature or that sound in tort. The 14 Guam Legislature has specifically provided a limited waiver of the Government of Guam's sovereign immunity through the Government Claims Act (,Claims 15 Act'). 5 GCA §§ 6101, et seq. Under this statute, the defense of sovereign 16 immunity is waived where a plaintiff timely files a valid complaint in compliance with the statute of limitations requirements of the Claims Act. Where the plaintiff 17 fails to timely file a complaint before the expiration of the statute of limitations, however, sovereign immunity is not statutorily waived. 18

19 Guam Police Dept. v. Superior Court of Guam, 2011 Guam 8 ~~ 7 and 8.

20 On this basis, the Supreme Court of Guam held that sovereign immunity is a threshold 21 jurisdictional question, and if sovereign immunity is not waived, the Superior Court has no 22 subject matter jurisdiction to entertain a claim against the Government of Guam: 23

24 "Sovereign immunity implicates a court's subject matter jurisdiction." Sumitomo Constr. Co., Ltd. v. Gov't of Guam, 2001 Guam 23 ~ 22 (citation omitted). Absent 25 duly enacted legislation, Guam's sovereign immunity is not waived and the Government cannot be sued. 48 U.S.C.A. § 1421a (2011); Newby, 2010 Guam 4 26 ~ 31. If a claim against the government does not meet the prerequisites for

27 sovereign immunity to be waived, then a tribunal lacks jurisdiction to entertain the claim. See Wood v. Guam Power Auth., 2000 Guam 18 at 3 ("[Plaintiffs] 28 claim's [sic] falls [sic] outside of the purview of the Government Claims Act and

Page 12 0[21 Decision and Order Civil Case No. CV1263-04

so is barred due to lack of jurisdiction."); Pac. Rock Corp. v. Dep't of Educ., 2001 Guam 21 ~ 18. Guam waives sovereign immunity for "all expenses incurred in 2 reliance upon a contract to which the Government of Guam is a party.... " 5 GCA § 6105(a) (2005). Nonetheless, it still stands that the failure to timely submit a 3 claim prevents the trial court from obtaining jurisdiction over the claim. Perez v. Guam Hous. & Urban Renewal Auth., 2000 Guam 33 ~ 14 (" Perez "). 4

5 Id., at ~~ 29 and 30.

6 5 GCA § 6102 sets forth the applicability of the Government Claims Act: 7 This Chapter applies, except as provided in Section 6104 of the Chapter, to the 8 entire government of Guam, as specifically stated herein. No government agency, whether denominated as a line department, an agency or a public corporation, is 9 excluded from the scope of this Chapter. The fact that an agency or 10 instrumentality has or has not the right to sue or to be sued in its own name does not exclude such agency or instrumentality from the scope of this Chapter. For II purposes of this Chapter, reference to an "autonomous agency" shall include public corporations, autonomous and semi autonomous agencies, including the 12 Antonio B. Won Pat International Airport, Guam; the Guam Telephone Authority 13 (but only as to claims that do not arise from the activities of any private owner or operator of the Telephone Authority); the Guam Power Authority; the Guam 14 Housing & Urban Renewal Authority; the Guam Housing Corporation; the Guam Economic Development and Commerce Authority; the Guam Memorial Hospital 15 Authority; the University of Guam; the Jose D. Leon Guerrero Commercial Port; 16 the Guam Community College; the Guam Waterworks Authority; the Government of Guam Retirement Fund; and the Guam Visitors Bureau. 17 5 GCA § 61 02(20 12)(emphases added). 18

19 Accordingly, the act is applicable to any suits against Defendant GMHA. 5 GCA §

20 6105 sets forth the types of cases in which the Government of Guam waives its immunity, 21 specifically allowing for actions involving contractual obligations: 22 Pursuant to Section 3 of the Organic Act of Guam, the Government of Guam 23 hereby waives immunity from suit, but only as hereinafter provided: (a) for all 24 expenses incurred in reliance upon a contract to which the Government of Guam is a party, but if the contract has been substantially completed, expectation 25 damages may be awarded; ...

26 5 GCA § 6105(a) (2012). 27

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Although this case involves an alleged contractual dispute, and the Government of

2 Guam has waived immunity in such cases if the governmental claim prerequisites have been

3 met, it is undisputed that the Plaintiff did not comply with the Government Claims Act. 5 GCA 4 § 6106(a) of the Act provides: "[a]ll claims under this Act must be filed within 18 months from 5 the date the claim arose ... " 5 GCA § 61 06(a) (2012). 6 The statute of limitations for the action in the Superior Court begins to run from the date 7

8 that the government claim is filed or rejected: "(b) Every action filed under this Chapter shall be

9 barred unless commenced within 18 months from the time the notice that the claim was rejected 10 was served as provided in Article 2 of this Chapter, or within 24 months after the claim was 11 filed in cases where the government does not reject the claim." 5 GCA § 61 06(b) (2012). 12

Interpreting this statute and reaffirming the jurisdictional nature of the defense of 13

14 sovereign immunity, the Supreme Court subsequently issued Attorney General of Guam v.

15 Gutierrez, 2011 Guam 10, reminding parties that filing a government claim is the best way to 16 pursue a claim, and the only way to pursue a claim against the Government of Guam in the 17 Superior Court: 18

19 ... sovereign immunity bars suit against the government without the filing of a government claim. See Newby v. Gov't of Guam, 2010 Guam 4 ~ 31.FN15 It may 20 be in the best interest of the claimant to file a government claim to preserve their right to sue the government. This is especially so because 5 GCA § 6106 requires 21 claims to be filed within 18 months from the date the claim arose. 5 GCA § 22 6106(a) (2005). If a claimant fails to file a government claim within 18 months, any suit based on the unfiled claim will be barred. 5 GCA § 61 06(b). 23 Attorney General of Guam v. Gutierrez, 2011 Guam 10 ~ 46. 24

25 The Court determines that the Plaintiff's time to file a government claim with the

26 Attorney General's Office began to run either: 1) on the Plaintiff's resignation and cessation of 27 services to GMHA on June 15,2001; or 2) upon receipt of the letter from GMHA informing the 28

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Plaintiff of the denial of payment for compensatory time earned on June 21, 2001, see Yun,

2 CV1263-04. Am. Compl. For Unpaid Wages, Exhibit D (filed June 10, 2011). The Plaintiff

3 would have been able to timely file a government claim until either December 15, 2002, or 4 December 21, 2002. This difference of a week has no bearing on the Court's determination of 5 jurisdiction, as the Plaintiff did not timely file a government claim on or before either date, 6 under 5 GCA § 61 06( a), and therefore, the Superior Court does not have jurisdiction to entertain 7

8 this breach of contract claim on this basis.

9 There is one recognized exception to the requirement that a party properly file a 10 government claim: 11 ... sovereign immunity may be abrogated in rare cases where justice demands 12 relief in equity. This holds true in cases that involve a factual question of whether or not sovereign immunity has been statutorily waived based upon the 13 commencement of a cause of action and the running of a statute of limitations. 14 Equity requires that a party be estopped from "asserting the statute of limitations as a defense to an admittedly untimely action because his conduct has induced 15 another into forbearing suit within the applicable limitations period." Atwater 16 Elementary Sch. Dist. v. California Dep't of Gen. Serv., 158 P.3d 794, 797 (Cal.2007). The application of the theory of equitable estoppel "is wholly 17 independent of the limitations period itself and takes its life ... from the equitable principle that no man [may] profit from his own wrongdoing in a court of justice." 18 Id. (internal citations omitted). 19 Guam Police Dept. v. Superior Court of Guam, 2011 Guam 8 ~ 15. 20 In order to successfully demonstrate that the theory of equitable estoppel should operate 21

22 to prevent the Defendants from invoking sovereign immunity, the Plaintiff must provide proof

23 of "inducement" by the Government of Guam or GMHA which enticed the Plaintiff to 24 relinquish the filing of a governmental claim. Id., at ~ 16. Although the Plaintiff has previously 25 argued that he was involved in settlement negotiations with both Defendants, the Plaintiff has 26 not provided the court with any allegation that the Defendants induced the Plaintiff into 27

28 forbearing suit. In fact, the Plaintiffs amended complaint includes allegations and an exhibit

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which tend to show that the Plaintiff, at all relevant times after his resignation, intended to

2 litigate this matter; he had obtained an attorney to obtain the compensation sought in this

3 complaint approximately one week after his resignation, and sent letters to both Defendants 4 expressing his intent to litigate. Yun, CV1263-04. Am. CompI. For Unpaid Wages, pp. 2-3, ~~ 5 10-14, and Exhibit F (filed June 10,2011). 6 As the Plaintiff has demonstrated no evidence of "inducement" to forego filing a 7

8 government claim, the Plaintiff was subject to the requirements of the Government Claims Act.

9 In summary, where properly invoked, sovereign immunity protects the Government of Guam and its line agencies by barring suit. See 48 U.S.C.A. § 10 1421a (2011). Sovereign immunity is, therefore, not merely an affirmative II defense to liability; but is the sovereign'S right not to be a defendant in court. Id .. . . . Only for expressly limited causes of action and upon fulfillment of 12 prerequisites expressly defined in Guam's Government Claims Act, has the legislature waived the Government's sovereign immunity from suit. 5 GCA §§ 13 6101 et seq. 14 Guam Police Dept. v. Superior Court of Guam, 2011 Guam 8 ~ 32. 15

16 Because the Plaintiff has failed to file a timely government claim and thus failed to

17 comply with the Government Claims Act, the Superior Court of Guam does not have subject 18 matter jurisdiction over the Plaintiff's breach of contract claim, and the claim is DISMISSED. 19 As a final note, the Court finds that even if it had found jurisdiction to hear this claim 20 against Defendant GMHA, the Court would not find jurisdiction to hear this claim against 21

22 Defendant Government of Guam. 5 GCA § 6302 is entitled, "Limitations on Contract

23 Obligations," and states in full, "[e]ach autonomous and line agency shall be liable for its own 24 contract obligations. Payments pursuant to this Section shall be paid from the funds certified for 25 payment of the contract pursuant to the budget of the agency or appropriation against which the 26 contract claim is made." 5 GCA § 6302 (2012). 27

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Although comments to a statute are not law, they may be useful in the interpretation of a

2 statute. The comment to 5 GCA § 6302 cites to a case regarding the Defendant GMHA, Aetna

3 Life Ins. Co. v. Guam Memorial Hospital Authority and Government of Guam, 1 Guam R. 592 4 (1979), and states that in this case, "[ a]t least one claimant has argued, unsuccessfully, that the 5 government of Guam can be jointly liable with an autonomous agency under the former 6 chapter." 5 GCA § 6302, COMMENT (2012). It is quite clear under this statute, that only the 7

8 Defendant GMHA can be held liable for its failure to pay contractual obligations, and the

9 Defendant Government of Guam cannot be jointly held responsible for the contractual claim 10 raised by the Plaintiff in this case. Accordingly, the Superior Court of Guam has no jurisdiction 11 over the Plaintiff s breach of contract claim against Defendant Government of Guam under 5 12

13 GCA § 6302, and this claim must be DISMISSED.

14 2) Direct Action Against the Defendants Under GMWHA

15 The Court next examines the GMWHA. The Court is not yet convinced that the 16 Plaintiff may maintain a direct action against the Government of Guam or any of its 17 instrumentalities under the GMWHA, in the absence of compliance with the Government 18

19 Claims Act. However, the Court does not address the question of whether the GMWHA

20 provides another express waiver of sovereign immunity in addition to that provided under 5 21 GCA § 6105, because taking all of the Plaintiff s allegations as true, the Court concludes that 22 the Plaintiff may not pursue a claim for the damages he seeks under the GMWHA. 23 22 GCA § 3117 provides in relevant portions: 24

25 (2) Liability to employee. Any employer who violates any provision of§§ 3105 or 3107 shall be liable to the employee or employees affected in the amount of their 26 unpaid minimum wages or unpaid overtime compensation, as the case may be, and in case of willful(sic) violation an additional equal amount as liquidated 27 damages. (3) Collection suits, attorney's fees; assignments; relief from costs. 28 Action to recover such liability may be maintained in the Superior Court of Guam

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by any one or more employees for an(sic) in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate 2 an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any 3 judgment awarded to the plaintiff or plaintiffs, in the event the plaintiff or plaintiffs prevail, allow a reasonable attorney's fee to be paid by the defendant, 4 and costs of the action. 5 22 GCA § 3117 (2) and (3)(2012) (emphasis added). 6 Under this statute, the GMWHA seems to constitute a legislatively provided exception 7

8 to sovereign immunity, allowing direct actions against the GMHA as a governmental entity, but

9 only for unpaid wages or overtime compensation. 22 GCA §§ 3117(2) and (3); see also 22 10 GCA § 3221. However, the Court will not decide this issue, as it finds that even if the Court n assumes that the Plaintiff may bring a direct action against GMHA, either: 1) through a claim of ]2 breach of contract for unpaid wages, because the GMWHA defines wages as including "wages 13

14 based on contract" (see 22 GCA § 3215(a)); or 2) in the absence of a contract for unpaid

15 benefits consisting of compensatory time earned (see 22 GCA § 3217); it appears that this 16 particular Plaintiff cannot collect under the GMWHA. 17 The Plaintiffs complaint clearly states that all of the damages sought in this case consist 18

19 of payment for compensatory time earned in lieu of overtime pay during his employment, which

20 he was unable to use. Section 31 07(a) of Title 22, as amended by Public Law 11-83, sets forth 21 the general rule prohibiting any employer from employing an employee in excess of forty hours 22 per week, without providing overtime compensation at one and one half times the employee's 23 regular wage, stating: 24

25 No employer shall employ any employee in excess of forty (40) hours a week, unless such employee receives compensation for employment in excess of such 26 weekly hours, at a rate not less than one and one half (l 112) times the regular rate at which he is employed, except that the provisions of this Subsection shall not 27 apply to employees covered under Section 207(k) of the Fair Labor Standards 28 Act, Chapter 8 of Title 29 of the United States Code.

180f21 Decision and Order Civil Case No. CV1263-04

22 GCA § 3107(a) (2012). 2 "Employee" as used in section 3107 is defined in 22 GCA § 31 04(4) to include any 3 person employed by an employer, excepting only those individuals employed in either 4

5 agriculture or domestic employment in or around a private horne. 22 GCA § 31 04(4) (2012).

6 The same section defines an "employer" to include entities and instrumentalities of the 7 Government of Guam: 8 Employer includes any individual partnership, association, corporation, business 9 trust, legal representative, government entity or instrumentality, or any organized group of persons, acting directly or indirectly in the interest of an employer in 10 relation to an employee, but shall not include the United States Government, 11 except when engaged in non-appropriated fund activities.

12 22 GCA § 3104(3) (2012). l3 Physicians qualify as "employees" and the Defendant GMHA qualifies as an 14 "employer" under section 3104. However, the Supreme Court of Guam has noted the 15

16 exceptions to the rule governing overtime compensation and compensatory time earned in place

17 of overtime: 18 While section 31 07( a) sets forth a general prohibition, forbidding an employer 19 from requiring employees to work more than forty hours without paying overtime, section 3108 then specifically exempts eight classes of employees. See 22 GCA § 20 3108 (2005). In section 3108, the Legislature provides that the maximum hour requirements of the previous section "shall not apply with respect to" those 21 employed by parent, spouse or child (section 3108(a)); administrators, executives 22 and professionals (section 31 08(b)); ....

23 Guerrero, et. aI., v. Thomas et. aI., 2010 Guam 11 ,-r,-r 16-17 (emphases added). 24 Specifically, 22 GCA § 3108 states: 25 The provisions of §§ 3105 and 3107 shall not apply with respect to: ... (b)(3) 26 Any employee who is employed in a bona fide professional capacity, which is any employee who is compensated on a salary or fee basis at a rate of not less than 27 Four Hundred Fifty-five Dollars ($455.00) per week and whose primmy duty is 28 the performance of work requiring knowledge of an advanced type in a .field of

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science or learning customarily acquired by a prolonged course of specialized intellectual instruction or requiring invention, imagination, originality or talent in 2 a recognized field of artistic or creative endeavor. It shall also include computer systems analysts, computer programmers, software engineers or other similarly 3 skilled workers in the computer field. 4 22 GCA § 3108(b)(3)(2012)(emphasis added). 5 The Court takes judicial notice pursuant to GRE Rule 201 (b) and (c) that under the 6 public Directory of Occupational Titles (DOT), anesthesiologists serve in a professional 7

8 capacity as defined by 22 GCA § 31 08(b )(3). An anesthesiologist:

9 Administers anesthetics to render patients insensible to pain during surgical, obstetrical, and other medical procedures: Examines patient to determine degree 10 of surgical risk, and type of anesthetic and sedation to administer, and discusses 11 findings with medical practitioner concerned with case. Positions patient on operating table and administers local, intravenous, spinal, caudal, or other 12 anesthetic according to prescribed medical standards. Institutes remedial measures to counteract adverse reactions or complications. Records type and amount of 13 anesthetic and sedation administered and condition of patient before, during, and 14 after anesthesia. May instruct medical students and other personnel in characteristics and methods of administering various types of anesthetics, signs 15 and symptoms of reactions and complications, and emergency measures to 16 employ. GOE: 02.03.01 STRENGTH: L GED: R6 M5 L6 SVP: 8 DLU: 87.

17 http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOT01B.HTM 070.101-010

18 ANESTHESIOLOGIST (medical ser.)(4th ed., Rev. 1991). 19 There is no question from the undisputed allegations of the amended complaint that the 20 Plaintiff was employed in a professional capacity, and therefore exempt from the protections of 21

22 22 GCA § 3107. Nowhere does Plaintiff dispute this contention as presented by Defendant

23 GMHA. Plaintiff was thusly prevented from earning overtime pay/compensation and filing a 24 suit for any alleged violations of 22 GCA § 3107 on this basis, as would otherwise be permitted 25 under 22 GCA § 311 7. 26 Interestingly, the Supreme Court of Guam has held that "[a]n employee is not entitled to 27

28 an award of unpaid wages for overtime where he or she volunteered to accept compensation in

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the form of compensatory time off. Furthermore, to the extent an employee has already received

2 compensatory time off at the requisite rate in lieu of wages, the employee's Minimum Wage and

3 Hour claim must be offset by that amount." Guerrero, et. at., v. Thomas et. at., 2010 Guam 11 , 4 37. 5 The Court finds that Plaintiffs characterization of his entitlement to compensation either 6 in the form of overtime payor compensatory time earned is of no import, as the operation of 22 7

8 GCA § 3108 prevents the Plaintiff from claiming any compensation therefor. Consequently, the

9 Court lacks subject matter jurisdiction to hear Plaintiffs claims for compensation based on 10 hours worked in excess of the limits set forth in 22 GCA § 3107, and any claims based thereon 11 are DISMISSED. 12

CONCLUSION 13

14 DISMISSAL for lack of subject matter jurisdiction is GRANTED as to all claims.

15 Defendant GMHA is ORDERED to pay Plaintiffs reasonable attorney's fees and costs incurred 16 in the filing of both the amended complaint and the opposition to the renewed motion for 17 judgment on the pleadings as a sanction under GR Rule 2.1. 18

22 IT IS SO ORDERED this _ _~~~~IL-_ _ _' 23

25 ~-.-- HONORABLE ARTHUR R. BARCINAS 26 Judge, Superior Court of Guam 27

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