Tenorio v. Guam Memorial Hospital Authority

Opinion

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5 IN THE SUPERIOR COURT OF GUAM 6 LOURDES B.Q. TENORIO, ) CIVIL CASE NO. CV0649-11 7 individually and on behalf of all those )

8 similarly situated, )

ORDER FOR FURTHER BRIEFING )

9 Plaintiff, )

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vs. )

11 ) 12 GUAM MEMORIAL HOSPITAL )

AUTHORITY )

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Defendant. )

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16 INTRODUCTION 17 This matter came before the court on March 5, 2012, on Defendant Guam 18 Memorial Hospital Authority's Motion to Dismiss. Attorney Thomas J. Fisher 19 represented Defendant, Guam Memorial Hospital Authority ("GMHA"). Attorney 20 Jesse N. Nasis represented Plaintiff, and the purported Class. Following a hearing 21 the Court took the matter under advisement. After considering the parties'

22 arguments and applicable law, this Court has identified additional issues that 23 require further briefing by the parties.

24 FACTUAL AND PROCEDURAL BACKGROUND 25 Plaintiff alleges that during various pay periods, spanning a period of years 26 GMH failed to pay employee and employer contributions to the Government of 27 Guam Retirement Fund as required by law. Plaintiff filed a Complaint for unpaid 28 wages unde!' the Minimum Wage and Hour Act of Guam ("MWHA"). Plaintiff

Decision and Order Case No. CV0649-11

requests damages on her own behalf and on behalf of a purported class consisting 2 of individuals employed by GMHA over the periods of alleged nonpayment. 3 GMHA filed a motion to dismiss under Guam Rules of Civil Procedure 4 12(b)(1) and (6) arguing that this Court lacks subject matter jurisdiction over the 5 action. In its motion, GMHA argues that dismissal is appropriate for three 6 reasons. First, GMHA claims that Plaintiff failed to follow administrative 7 procedures set forth in rules promulgated by the Director of Labor or GMHA, and 8 that this failure to exhaust remedies deprives the court of jurisdiction. Second, 9 GMHA argues that Plaintiffs claims relating to years prior to 2010 are barred by 10 the statute of limitations. Finally, GMHA asserts that the law does not allow for 11 payment of retirement contributions to Plaintiff individually, or to other members 12 of the class and, therefore, this Court cannot grant Plaintiffs primary request for 13 relief in the form of money damages paid to plaintiff. For all these reasons, each of 14 which Plaintiff opposes, GMHA asserts that this Court lacks subject matter 15 jurisdiction over this matter. 16 DISCUSSION 17 While Defendant's motion raises relevant jurisdictional arguments, this 18 Court identifies an additional issue related to this court's exercise of subject 19 matter jurisdiction in the present case. 20 The Territory of Guam enjoys sovereign immunity from lawsuits except with 21 respect to particular contract and tort claims for which the legislature has expressly 22 waived immunity. 42 U.S.C. § 1421(a); 5 G.C.A. § 6105; Marx v. Gov't of Guam, 866 23 F.2d 294, 298 (9th Cir. 1989); Newby v. Gov't of Guam, 2010 Guam ~ 31 ("Sovereign 24 immunity can only be waived by duly enacted legislation [and] absent such 25 legislation, the Government cannot be sued."). Under the Government Claims Act, 5 26 GCA § 66101, et seq., "[s]overeign immunity is explicitly waived by statute for 27 certain governmental actions that are contractual in nature or that sound in tort." 28 Guam Police Dep't. v. Superior Court, 2011 Guam 8 ~ 8. But even when an action

Decision and Order Case No. CV0649-11

against the Government is based in contract or tort, a plaintiff must generally file a 2 government claim under the Government Claims Act as a prerequisite to 3 maintaining an action in the Superior Court of Guam. See 5 GCA § 6208. 4 Given this brief context relating to the doctrine of sovereign immunity and 5 the Government Claims Act, this Court directs the parties to submit memoranda of 6 law and authority in response to the following question: 7 1) Does the MWHA constitute a separate and distinct waiver of sovereign 8 immunity that is free from the procedural requirements of the 9 Government Claims Act; or must a government employee who wishes to 10 file a wage claim under the MWHA that is based on an underlying written 11 or implied oral employment contract comply with the Government Claims 12 Act?

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15 The parties shall file responses to the above question by July 20, 2012. The 16 parties, if they so choose, may file oppositions by August 3, 2012, and Replies by 17 August 9, 2012. The Court will take the matter under advisement based on the 18 briefs.

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20 SO ORDERED this 5th day of July, 201 .

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23 HONORABLE ALB TO C LAMORENA, III 24 Presiding Judge, SupeI'

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