1 IN THE SUPERIOR COURT OF GUAM II 2: 17 2 MOON G. YUN, ) ) CIVIL CASE NO. CV1263-04 3 Plaintiff, ) ) 4 ) VS. ) DECISION AND ORDER 5 ) ) 6 GUAM MEMORIAL HOSPITAL ) AUTHORITY, ) 7 ) ) 8 Defendant. )
9 ------------------------~) INTRODUCTION 10 This matter came before the HONORABLE ARTHUR R. BARCINAS on the 17th day of 11 12 September, 2010, on Defendant's Motion for Judgment on the Pleadings. Attorney Darlene E.
13 Hiton represented the Plaintiff, and Attorney Randall T. Thompson and Assistant Attorney General
14 Robert M. Weinberg were present for the Defendant. Assistant Attorney General Robert M. 15 Weinberg has since been substituted as sole counsel for the Defendant. The Court now issues the 16 following written Decision and Order on the matter. 17 PROCEDURAL HISTORY 18 19 On December 13,2004, the Plaintiff filed a complaint alleging two claims for damages.
20 Factually, the Plaintiff alleges in this complaint that he was employed by the Defendant, Guam 21 Memorial Hospital Authority, as an anesthesiologist, and resigned from this employment on June 22 15, 2001. He alleges that when he resigned, he had accumulated 448 hours of annual leave and 23 citing to Exhibit A, attached to the complaint, states that he had accumulated "two thousand one 24 hundred and thirty-three and 3111 00 (2,131.31)(sic)" hours of compensatory time earned. PI. 's 25 26 Compl., p.2, ~ 5, p.3, ~14. The Court is unsure whether the Plaintiff is claiming compensation for Yun v. GMHA; CV 1263-04 DECISION AND ORDER
1 2,133.31 hours, 2131.31 hours, or 2,153.31 hours due to the differing descriptions and numbers
2 used in the complaint and Exhibit A. Plaintiffs Complaint further alleges that he was employed 3 earning $95.00 per hour at the time of his resignation. 4 On these bases, the Plaintiff asks the Court to award damages in the amount of 448 hours 5 multiplied by $95.00 per hour for annual leave; either 2,133.31 hours, 2,131.31 hours,or2,153.31 6 7 hours multiplied by $95.00 per hour in compensatory time earned; interest as provided by law;
8 costs and attorney's fees; and any further relief the Court may deem proper.
9 On February 15, 2005, the Defendant filed an Answer to the Plaintiffs Complaint. On 10 March 5, 2010, more than five years after the close of the pleadings, the Defendant filed a Motion 11 for Judgment on the Pleadings alleging that the Plaintiff failed to state a cause of action, and that 12 the Court was deprived of jurisdiction to hear the Plaintiff s claims due to the failure to follow the 13 14 requirements of the Government Claims Act, and the applicable statute(s) of limitations. The
15 Defendant moved for jUdgment/dismissal based on these arguments. The Plaintiff filed an
16 opposition on March 19,2010. 17 DISCUSSION 18 The Defendant asserts that the Plaintiff has failed to establish subject matter jurisdiction 19 in the Superior Court of Guam because he has failed to file a government claim under the 20 Government Claims Act in order to overcome sovereign immunity, and further, even ifhe was not 21 22 required to file a government claim under the Government Claims Act, the suit is barred by the
23 applicable statute of limitations.
24 The Defendant has named the motion a "Motion for Judgment on the Pleadings." Rule 25 12(c) of the Guam Rules of Civil Procedure permits motions for "judgment on the pleadings" to 26 Yun v. GMHA; CV 1263-04 DECISION AND ORDER
1 be made after the pleadings are closed. Through Rule 12(h), Rule 12( c) may be used to raise
2 some ofthe defenses enumerated in Rule 12(b) after the pleadings have closed, despite the general 3 requirement of Rule 12(b) that those defenses be raised before a responsive pleading is filed. Rule 4 12(h)(2) allows motions for dismissal of a complaint, after the pleadings are closed, for failure to 5 state a claim upon which relief can be granted. Hennegan v. Pacifico Creative Service, Inc., 674 6 7 F.Supp. 303,305 (D. Ct. Guam 2000) (citing Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980».
8 Similarly, Rule 12(h)(3) allows a challenge to the court's subject matter jurisdiction at any time,
9 as under Rule 12(b)( 1), including through a motion under Rule 12( c). GRCP Rule 12(h)(3), see 10 also U.S. v. New Silver Palace Restaurant. Inc., 810 F. Supp. 440, 441 (E.D.N.Y.l992)(citing 5A 11 Wright & Miller, Federal Practice and Procedure, §1367 at 515-16(1990». 12 When these types of procedural defects are asserted in a motion for judgment on the 13 14 pleadings under Rule 12( c), the court applies the same standard as it would have used if the
15 motion had been brought under one of the specific subsections of Rule 12(b). Alexander v. City
16 of Chicago, 994 F.2d 333, 336 (7 th Cir.1993); see also Park University Enterprises, Inc., v. 17 American Cas. Co. of Reading, PA, 442 F.3d 1239, 1244 (10th Cir.2006)(where motion for 18 judgment on the pleadings is predicated upon defense of failure to state a claim, court applies Rule 19 12(b)(6) standard); U.S. v. New Silver Palace Restaurant, Inc., 810 F. Supp. 440, 441 20 21 (E.D.N.Y.l992)(where motion for judgment on the pleadings is predicated upon defense oflack
22 of subject matter jurisdiction, court applies Rule 12(b)(1) standard). The difference between
23 motions under Rule 12( c) and motions under Rule 12(b) is that the court may grant judgment on 24 the merits under Rule 12( c), rather than a simple dismissal of the case, as under Rule 12(b) 25 26 Yun v. GMHA; CV1263-04 DECISION AND ORDER
1 because the defendant has subjected himself/herself to the personal jurisdiction of the court by
2 answering the complaint. 3 A Rule 12(c) motion is designed to provide judgment on the merits in cases where all of 4 the allegations contained in the complaint are admitted and no matters outside of the pleadings 5 have been presented to the court. GRE Rule 12( c); Herbert Abstract Co., Inc. v. Touchstone 6 7 Properties, Ltd., 914 F.2d 74, 76 (5 th Cir.1990) (citing 5A Wright & Miller, Federal Practice and
8 Procedure, § 1367 at 509-10(1990)); National Fidelity Life Insurance Co. v. Karaganis, 811 F.2d
9 357, 358 (7th Cir.1987). If matters outside the pleadings have been presented to the court, the 10 motion must be decided under Rule 56(c). GRE Rule 12( c). Under Rule 12( c) the burden is on 11 the moving party to establish that no material issue of fact exists based on the pleadings, and that 12 the moving party is entitled to judgment bylaw. DiCarlo v. St. Mary Hospital, 530 F.3d 255,259 13 14 (3 rd Cir.2008); Poehl v. Countrywide Home Loans Inc., 528 F.3d 1093, 1096 (8 th Cir.2008);
15 JPMorgan Chase Bank, N.A., v. Winget, 510 F.3d 577, 582 (6 th Cir.2007); Park University
16 Enterprises, Inc., v. American Cas. Co. of Reading, PA, 442 F.3d 1239, 1244 (10th Cir.2006). 17 Under Rule 12( c) all issues of fact must be resolved by the pleadings. See R.G. Financial 18 Corp., v. Vergara-Nunez, 446 F.3d 178, 182 (1 st Cir.2006). All ofthe material factual allegations 19 (as opposed to legal conclusions) contained in the complaint must be accepted as true, National 20 21 Metropolitan Bank v. U.S., 323 U.S. 454, 457 (1945); Ventress v. Japan Airlines, 486 F.3d 1111,
22 1114 (9 th Cir.2007), and any contravening assertions made by the moving party must be considered
23 false, Johns-Manville Corp. v. U.S., 12 Cl. Ct. 1,14-5 (1987); MacDonald v. DuMaurier, 144F.2d 24 696, 700-01 (2d Cir.1944), because a motion for judgment on the pleadings cannot be granted if 25 there exists a material issue of fact that cannot be resolved on the pleadings alone. Herbert 26
yage,+ or US Yun v. GMHA; CV1263-04 DECISION AND ORDER
1 Abstract Co., Inc. v. Touchstone Properties, Ltd., 914 F.2d 74, 76 (5 th Cir.1990) (citing 5A Wright
2 & Miller, Federal Practice and Procedure, §1367 at 509-10(1990)); Johns-Manville Corp. v. 3 U.S., 12 Cl. Ct. 1, 14-5 (1987). 4 Although the motion is styled as a "Motion for Judgment on the Pleadings" the Defendant 5 does not request "judgment" on the merits of the underlying action. Instead, the Defendant raises 6
7 the issue of the Plaintiff s ability to maintain the suit, and argues that the complaint should be
8 "dismissed" for lack of subject matter jurisdiction. Def.'s Mot. for J. on the Pleadings, p. 1, ,-r,-r1-2.
9 The Court notes that the Defendant requests dismissal, rather than judgment in its favor, as would 10 generally be the proper remedy under Rule 12( c). Therefore, in accordance with the relief 11 requested, and the stated basis for the relief, through Rule 12( c), this portion ofthe motion must 12 be treated as a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). U.S. 13 14 v. New Silver Palace Restaurant, Inc., 810 F. Supp. 440,441 (E.D.N.Y.1992); and Collins v.
15 Bolton, 287 F.Supp. 393, 396 (D.C.I1l.1968).
16 Although the Defendant failed to cite or argue the standard of Rule 12(b)(I), as required 17 through Rule 12 ( c) and Rule 12(h)(3), and instead argued the standard of Rule 12(b)(6), in the 18 interest of judicial economy, the court will analyze the Defendant's arguments under the correct 19 standard for Rules 12( c) and 12(b)(1), and address the merits of the claims regarding subject 20 21 matter jurisdiction. Moreover, although the Defendant characterizes the defects in the complaints
22 as "jurisdictional," without further specificity or explanation as to the type of jurisdictional defect
23 alleged, the Court notes that the primary arguments presented concern the applicability of certain 24 laws to the Plaintiff, his ability to claim recompense pursuant to those laws due to sovereign 25 immunity, and statute of limitations defenses. Accordingly, these defects concern the issues of 26 Yun v. GMHA; CV1263-04 DECISION AND ORDER
1 standing and subject matter jurisdiction, and the Court will address these issues under the rubric
2 of Rule 12( c). 3 The Court next notes that the Defendant does not admit to all of the factual allegations 4 contained in the complaint, thus showing the absence of an issue of material fact, as required for 5 the issuance of judgment under Rule 12( c). DiCarlo v. St. Mary Hospital, 530 F.3d 255, 259 (yd 6 7 Cir.2008); Poehl v. Countrywide Home Loans Inc., 528 F.3d 1093, 1096 (8th Cir.2008); JPMorgan
8 Chase Bank, N.A., v. Winget, 510 F.3d 577,582 (6 th Cir.2007); Park University Enterprises, Inc.,
9 v. American Cas. Co. of Reading, PA, 442 F.3d 1239, 1244 (loth Cir.2006); see also EEOC v. 10 Ingersoll Johnson Steel Co., 583 F.Supp. 983, 985 (D.C.Ind 1984)(where defendant denies material 11 factual allegations and raises question of subject matter jurisdiction, defendant fails to meet 12 standard for motion for judgment on the pleadings and motion will be treated as motion to dismiss 13 14 under Rule 12(b)(l)). In its answer, the Defendant generally denies all the Plaintiff s allegations
15 which are not affirmatively admitted, and specifically denies all of the Plaintiffs allegations
16 contained in paragraphs 2, 13, and 14. Def.'s Answer, p.l, ~2, and p. 2, ~~ 3-5. 17 Accordingly, under both Rule 12( c) and Rule 12(b)( 1), for the purposes of determining the 18 motion, all of the Plaintiff s well plead allegations of standing must be taken as true, against the 19 Defendant, and the Court will ignore all alleged factual disputes, in favor ofthe pleadings set forth 20 21 by the Plaintiff. National Metropolitan Bank v. U.S., 323 U.S. 454, 457 (1945); Ventress v. Japan
22 Airlines, 486 F.3d 1111, 1114 (9 th Cir.2007); see also Gibbs v. Buck, 307 U.S. 66, 72 (l939);
23 Cramer v. Skinner, 931 F.2d 1020, 1025 (5 th Cir.1991), accord Scheuerv. Rhodes, 416 U.S.232, 24 236 (1974); Johns-Manville Corp. v. U.S., 12 Cl. Ct. 1, 14-5 (Fed. Cir. 1987); Smith v. Gross, 604 25 F.2d 639, 641, n.l (9 th Cir.1979); and MacDonald v. DuMaurier, 144 F.2d 696, 700-01 (2d 26
Page 6 ot 115 Yun v. GMHA; CV 1263-04 DECISION AND ORDER
1 Cir.1944).
2 D Standing/Subject Matter Jurisdiction and Amendment 3 "Standing is a threshold jurisdictional matter." Benavente v. Taitano, 2006 Guam 15, ~14 4 (Sup. Ct. Guam 2006)(quoting Guam Imaging Consultants, Inc. v. Guam Mem'l Hosp. Auth., 2004 5 Guam 15, ~ 17 (Sup. Ct. Guam 2004». "Thus, we have held that a court has no subject matter 6
7 jurisdiction to hear a claim when a party lacks standing." Id.; see also Taitano v. Lujan, 2005
8 Guam 26, ~15 (Sup. Ct. Guam 2005). However, so long as there are sufficient facts plead in the
9 complaint from which to infer jurisdiction, a Rule 12(b)(1) motion must be denied. Tarleton v. 10 MeharryMedical College, 717 F.2d 1523,1529 (6th Cir.1983); Davis v. Ohio Barge Line, Inc., 697 11 F.2d 549,552 (3rd Cir.1983); Wright v. Gregg, 685 F.2d 340, 342 (9 th Cir.1982); Mountain Fuel 12 Supply Co. v. Johnson, 586 F.2d 1375, 1382 (10 th Cir.1978), cert. denied, 441 U.S. 952 (1978). 13 14 The Supreme Court of Guam has held that:
15 "[S]tanding may be predicated upon the statutory grant of such standing by the legislature or the common-law standing principles of Article III. Therefore, where 16 standing is statutorily conferred, we look first to the language ofthe relevant statute 17 to determine whether a party has statutory standing. Where standing is not conferred by statute, we tum to the common law principles of Article III to 18 determine whether a litigant satisfies such standing requirements .... "
19 Benavente v. Taitano, 2006 Guam 15, ~~20-21. 20 Thus, in determining the Plaintiff's standing, the Court assumes that all of the allegations 21 of the Plaintiff are true, and the Court's analysis begins by examining whether any statutory 22 authority exists for the claims asserted in the complaint. Id.; see also Macris v. Guam Mem'l 23
24 Hosp. Auth., 2008 Guam 6, ~15 (Sup.Ct. Guam 2008)("Thus, we look to this statute to determine
25 upon whom the Legislature conferred standing and whether the claimant in question falls in that
26 category.")(quoting Benavente v. Taitano, 2006 Guam 15, ~~20-21). Yun v. GMHA; CV1263-04 DECISION AND ORDER
1 The first question regarding the Plaintiff's standing to maintain this suit concerns whether
2 the Plaintiff was required to file a government claim for wages and compensation owed him upon 3 his resignation from GMHA, or whether he may maintain a direct action against the Defendant 4 under Guam's Federal Labor Standards Act (FLSA) also known as the Guam Minimum Wage and 5 Hour Act (GMWHA), based on an employment contract. Intertwined with the question of 6 7 whether Plaintiff could bring a direct action against the Defendant under the GMWHA without
8 filing a government claim, is the determination of whether the advantage of the statute of
9 limitations for actions based in contract is applicable to actions brought pursuant to the GMWHA. 10 In determining the Plaintiff's standing, the Court starts with the plain language of 4 GCA 11 §41 02( a), regarding the classification of public or governmental employees. It states in relevant 12 portion: "[t]he unclassified service shall include the positions of: (13) physicians and health care 13 14 administrators employed at the Guam Memorial Hospital Authority .... " Id. It is undisputed in
15 this case that the Plaintiff was a physician practicing anesthesiology at GMHA when he earned the
16 disputed compensation. Therefore, by statute, he was an unclassified employee. 17 The Plaintiff frames the question before the Court as "whether an action for breach of 18 contract by a non-classified employee of GMHA for unpaid wages is subject to the Government 19 Claims Act, 5 G.C.A. §6102, et. at. (,Claims Act')." Pl.'sMem. of Points and Authorities in Opp. 20 21 to Defo's Mot. for J. on the Pleadings, p. 3, 1[1 (filed March 19,2010). This statement and others
22 similarly made by the Plaintiff, present the first problem of pleading for the Court.
23 Through Rules 12( c) and (h)(3), where a party raises the issues of standing and the 24 plaintiffs' ability to maintain the suit as a party to the action, especially in cases concerning the 25 implications of sovereign immunity, Rule 12(b)(1) is the proper authority under which to address 26 Yun v. GMHA; CV1263-04 DECISION AND ORDER
1 the request for dismissal. G.R.C.P. Rule 12(b)(I); Quitugua v. Flores, 2004 Guam 19, ~31, n.l2;
2 McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 241 (1980); and Colorado 3 Environmental Coalition v. Wenker, 353 F.3d 1221,1227 (10th Cir.2004); see also Leonhard v. 4 Mitchell, 473 F.2d 709, 712 (2d Cir. 1973); and Ahuna v Dept. of Hawaiian Home Lands, 640 5 P.2d 1161, 1164, n.9 (Sup. Ct. Haw. 1982). 6 7 Under the standard for Rule 12(b)( 1), there are two different types ofjurisdictional defects
8 that must be addressed by the Court. The first is the pleader's formal failure to sufficiently allege
9 jurisdictional facts, as required under Rule 8(a)( 1), and the second is the lack of actual jurisdiction, 10 despite the formal sufficiency of the pleadings. The Court is currently presented with both 11 defects, and will first address the former defect under Rule 8(a)(I). 12 The Plaintiff claims that the Court has jurisdiction over this action under the GMWHA, and 13
14 that his claims of unpaid wages are based in contract. The Court finds no support for this assertion
15 anywhere in the Plaintiffs Complaint. Under GRCP Rule 8(a), "[a] [pleading which sets forth
16 a claim for relief ... shall contain (1) a short and plain statement of the grounds upon which the 17 court's jurisdiction depends ... [and](2) a short and plain statement of the claim showing that the 18 pleader is entitled to relief .... " GRCP Rule 8(a)(2011). The word "contract" does not even 19 appear within the complaint filed by the Plaintiff, much less a mention of a breach of such contract. 20 21 Further, the GMWHA, at 22 GCA § 3117, includes a provision for collection of unpaid
22 wages. Subsection 3 provides that an action to recover compensation for unpaid wages from an
23 employer pursuant to section 3105 or section 3107 may be maintained by any employee. 22 GCA 24 § 3117(3) (2011). Again, in reviewing the Plaintiffs pleadings, no mention of this act or its 25 provisions is found within the Plaintiffs Complaint. Accordingly, the Court finds that the Plaintiff 26 Yun v. GMHA; CV1263-04 DECISION AND ORDER
1 has failed to set forth any short and plain statements ofjurisdiction for claims of breach of contract
2 or claims made under the GMWHA, as required under Rule 8(a). 3 Although the Plaintiff has failed to set forth a claim of breach of contract and jurisdiction 4 over such cause of action under Rule 8(a), it appears to the Court that such a contract could and 5 should exist. 4 GCA §41 03(e) states: "[n]o person may be temporarily employed in a professional 6 7 capacity for more than one hundred twenty (120) days except upon a contract in writing, and a
8 determination in writing by the appointing authority that such employment is critical to either the
publichea1th, safety or welfare ofthe community." Id. From this statutory requirement, it appears 10 that there must necessarily have been an employment contract underlying the Plaintiff's 11 employment with the Defendant, GMHA. However, no mention of a contract or a claim of unpaid 12 wages due under any contract can be found within the Plaintiffs complaint. 13 14 Generally, a motion to dismiss pursuant Rule 12(b)(1) should be disfavored and doubts
15 should be resolved in favor ofthe pleader, unless no set of jurisdictional facts could support the
16 exercise of jurisdiction. Harmon v. Superior Court of State of California in & for the County of 17 Los Angeles, 307 F.2d 796, 797 (9 th Cir. 1962). Should the pleading fail to formally and 1 sufficiently set forth the jurisdictional facts required under Rule 12(b)( 1), dismissal without leave 19 to amend is improper unless it is clear that the action could not be saved by any amendment. Id.; 20 21 and Topping v. Fry, 147 F.2d 715, 718 (7 th Cir.l945).
22 In fact, it is reversible error to dismiss under Rule 12(b)(1) unless there exists no set of
23 facts to support the court's jurisdiction over the matter. Commodities Export Co. v. U.S. Customs 24 Serv., 888 F.2d 431,436-7 (6 th Cir. 1989); Berrios v. Department of Army, 884 F.2d 28,33 (lst 25 Cir. 1988); and Cooper v. U.S. Penitentiary, Leavenworth, 433 F.2d 596, 597 (lOth Cir. 1970). 26
Page 10 of HS Yun v. GMHA; CV1263-04 DECISION AND ORDER
1 Thus, where facts needed to prove standing may exist, but have not yet been presented, the court
2 must allow opportunity for these facts to be demonstrated before dismissal may be granted. Ids. 3 In this case, it is apparent that an employment contract must have existed, under 4 GCA § 41 03( e), 4 however, the Plaintiff has completely failed to allege this fact, has failed to allege any breach of 5 such contract, and has further never alleged a cause of action under the GMWHA in his pleadings. 6 7 Rule IS(a) provides in relevant part:
8 Amendments. 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 9 which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it has 10 been served. Otherwise a party may amend the party's pleading only by leave of 11 court or by written consent of the adverse party; and leave shall be freely given when justice so requires. 12 GRCP Rule IS(a)(2011). 13 14 Rule IS(a) generally grants a court the discretion to liberally allow a party to amend its
15 pleading so long as the party receives leave of the court. The Guam Supreme Court and the United
16 States Supreme Court have held that, in general, a court may not deny a party leave to amend 17 wi thout a justifying reason. Arashi & Co., Inc. v. Nakashima Enterprises, Inc., 200S Guam 21, ~16 18 (Sup. Ct. Guam 200S)(citing Foman v. Davis, 371 U.S. 178, 182 (1962». 19 The Defendant argues that only a three year statute oflimitations is applicable to this action 20 21 under 7 GCA § 1130S (1) or (8), regarding actions at law or oral contracts, thus requiring dismissal.
22 On the allegations currently contained in the Plaintiff's Complaint, these statutes of limitations
23 would apply to bar the current suit, however, as the Court has found that the Plaintiff may be able 24 to amend to allege the existence of a contract, and contractual claims under the GMWHA, the 25 Court will await amendment based on the following analysis. 26 Yun v. GMHA; CV 1263-04 DECISION AND ORDER
1 Although neither party has argued this particular point, the Court finds that a discussion
2 of the operation of these statutes of limitations in conjunction with Rule 15 is necessary to 3 determine whether amendment would be futile. After a review of the applicable rules, the Court 4 finds that these statutes oflimitations are not applicable to prevent the amendment ofthe Plaintiff's 5 complaint because of the operation of the "relation-back doctrine" under Rule 15(c). 6 7 GRCP Rule 15(c) provides in relevant part:
8 An amendment of a pleading relates back to the date ofthe original pleading when ... (2) the claim or defense asserted in the amended pleading arose out of the 9 conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the 10 party against whom a claim is asserted if the foregoing provision (2) is satisfied 11 and, within the period provided by Rule 4(m) for service of summons and complaint, the party to be brought in by amendment (A) has received such notice 12 of the institution ofthe action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a 13 mistake concerning the identity of the proper party, the action would have been 14 brought against the party.
15 GRCP Rule 15( c)(2011).
16 Under subsection (2), the rule provides that an amendment to add new claims or legal 17 theories will relate back to the time ofthe original filing ifthe new claims or theories asserted arise 18 out of the same facts as contained in the original complaint, as asserted against the same party or 19 parties. The stated purpose of this subsection of the rule is to ameliorate the effect of a statute of 20 21 limitations whenever the defending party is put on notice of a possible suit arising out of a specific
22 transaction. Cannon v. Kroger Co., 837 F.2d 660, 667 (4th Cir. 1988); Siegel v. Converters
23 Transportation, Inc., 714, F.2d 213, 216 (2d Cir. 1983); Santana v. Holiday Inns, Inc., 686 F.2d 24 736,738 (9 th Cir.1982); see also Sunkyong Int'l v. Anderson Land & Livestock Co., 828 F.2d 25 1245, 1252 (8 th Cir. 1987). 26 Yun v. GMHA; CVJ263-04 DECISION AND ORDER
1 In this case, there is no question that any amended counterclaim alleging the failure to pay
2 wages based on contract would arise out ofthe same occurrence as the original claims of failure 3 to pay compensation. Interpreting Rule 15(c), federal courts have consistently found that 4 amendments to state a different claim under a different rule or fact will relate back to the original 5 date of filing in order cure a defect in subject matter jurisdiction, if the underlying event is the 6 7 same. Cannon v. Kroger Co., 837 F.2d 660, 667 (4 th Cir. 1988); Siegel v. Converters
8 Transportation, Inc., 714, F.2d213, 216 (2d Cir. 1983); Ashland v. Ling-Temco-Vought, Inc., 711
9 F.2d 1431 (9 th Cir. 1983); Santana v. Holiday Inns, Inc., 686 F.2d 736, 738 (9 th Cir.1982); Fujii v. 10 Du1les, 224 F.2d 906, 906-7 (9th Cir.l955), see also Sunkyong Int'l v. Anderson Land & 11 Livestock Co., 828 F.2d 1245, 1252 (8 th Cir. 1987). 12 In the situation before the Court, the Plaintiff would merely be adding new allegations 13 14 under a new theory of recovery, arising out of the original transaction, in order to give the Court
15 jurisdiction where the exercise of jurisdiction would have been barred under the statute(s) of
16 limitations applicable to the original claims. The Plaintiff would be allowed to use the relation 17 back doctrine of Rule 15( c) to circumvent the statute of limitations regarding its damages under 18 contract, or the GMWHA pursuant to a contract theory of recovery. This is consistent with the 19 stated purpose of Rule 15(c)(2). Accordingly, the Court finds that amendment to state a different 20 21 claim sounding in contract, arising out of the same occurrence as alleged in the original complaint,
22 would be proper under Rule 15(a) and (c). As the complaint currently stands, on its face, none
23 of the grounds upon which the Plaintiff argues jurisdiction are proper. Upon amendment of the 24 complaint, the Court would be able to detennine whether the Plaintiff s particular contract claims 25 may proceed under the GMWHA, and are subject to the statute oflimitation applicable to contract 26 Yun v. GMHA; CV1263-04 DECISION AND ORDER
1 actions.
2 Relevant Considerations/Limitations on Recovery for Plaintiff in Amending Complaint 3 Annual Leave 4 In the original complaint, the Plaintiffhas requested lump sum compensation for 448 hours 5 of annual leave. Statutorily, a classified employee (even if employed prior to February 28, 2003, 6 7 such as the Plaintiff) is limited to an accumulation of a maximum of 320 hours of annual leave,
8 and lump sum compensation at separation based thereon. 4 GCA § 41 09( c)(2011). The Court has
9 determined that the Plaintiff is necessarily an unclassified employee, and thus, the compensation 10 of his annual leave is not governed by statute. However, the maximum number of annual leave 11 hours that may be compensated by lump sum appears to be even less for unclassified employees 12 under the GMWHA. 13 14 For unclassified employees, in 1995 and 1996, comprehensive personnel rules and
15 regulations were adopted by the Director of Administration, approved by the Civil Service
16 Commission, and promulgated by the Governor of Guam in Executive Order 96-24. This order 17 set forth the maximum number of hours of compensatory time that may be accrued by personnel 18 employed by the government of Guam and autonomous agencies thereof. See E.O. 96-24, 19 "Relative to adopting and promulgating the Department of Administration's personnel rules and 20 21 regulations governing the rights, conduct, and obligations of employees and responsibilities and
22 actions of management," Oct. 1, 1996.
23 On October 1, 1996, the government of Guam implemented these new Personnel Rules and 24 Regulations on a government-wide scale, after "a rigorous and lengthy process, which included 25 public hearings and scrutiny by many groups and individuals[.]" E. O. 96-24. The Executive Order 26 Yun v. GMHA; CV1263-04 DECISION AND ORDER
1 was assertedly promulgated in compliance with all applicable federal personnel laws, including
2 the FLSA (GMWHA), and specifically required all autonomous agencies, including the Defendant, 3 GMHA, to adopt the new personnel rules, stating "[ u]nless contrary to statute, all autonomous 4 departments and agencies are hereby required to adopt the Department of Administration's 5 Personnel Rules and Regulations ("Rules") to promote uniformity and consistency concerning 6 7 personnel rules and regulations throughout the Executive Branch." Id. The Rules explicitly
8 superseded any previous orders to the contrary, mandating that "[a]l1 prior rules, regulations,
9 policies, memoranda or Executive Orders in conflict with this Executive Order are hereby 10 rescinded to the extent of any conflict." Id. 11 Rule 8.1 06(A) of these rules sets forth the limitation on accrual of annual leave, stating: 12 "[a]nnualleave accrued and unused in a leave year may be accumulated and carried over to the 13 14 next leave year except that total accumulation by such carry-over shall not exceed 480 hours ...
15 .excess annual leave accrued and unused in a leave year shall be automatically forfeited at the end
16 of such leave year." DOA Rule 8.106(A)(2011). Under Rule 8.107(A), "[w]hen an employee is 17 separated from government service, he shall be given a lump sum payment for any accrued and 18 unused annual leave as of the date of separation." DOA Rule 8.107(A)(2011). 19 Accordingly, as the Plaintiff only seeks compensation for 448 hours of annual leave, it 20 21 appears that the number of annual leave hours for which the Plaintiff seeks compensation is not
22 circumscribed under the GMWHA.
23 Compensatory Time Off Limitations 24 Rules governing compensatory time offwere also included in the 1996 Personnel Rules 25 and Regulations. "An employee may not waive his or her right to overtime for hours worked over 26 Yun v. GMHA; CVI263-04 DECISION AND ORDER
1 forty hours except as provided in Rule 70405, "Compensatory Time Off in Lieu of Overtime Pay."
2 Guerrerov. Santo Thomas, 2010 Guam 11 ,35 (Sup. Ct. Guam 201O)(citingDOA Rule 7A04(D). 3 The following rule, Rule 70405, establishes that compensatory time off may be earned "by mutual 4 agreement" between the employee and management, but that such agreement must be kept at the 5 Department of Administration. DOA Rule 7A05(A)(2011). In this case, the Plaintiff's pay stub 6 7 shows compensatory time earned, and it appears that the Plaintiff elected to earn compensatory
8 time off in lieu of overtime pay, however, this is not clear upon the face of the Plaintiff's
Complaint, and should be addressed in the amended pleading. 10 At the hearing held by the Court on September 17, 2010, the Court asked the parties to 11 submit briefing on the case of Guerrero v. Santo Thomas, 2010 Guam 11 (Sup. Ct. Guam 2010). 12 The Plaintiff did not submit any briefmg, but on September 20, 2010, the Defendant submitted 13 14 briefing claiming that the case was not relevant to the situation before the Court. In the Guerrero
15 case, the Supreme Court of Guam foUnd that under the GMWHA, "[a]n employee is not entitled
16 to an award of unpaid wages for overtime where he or she volunteered to accept compensation in 17 the form of compensatory time off. Furthermore, to the extent an employee has already received 1 compensatory time off at the requisite rate in lieu of wages, the employe 's Minimum Wage and 19 Hour claim must be offset by that amount." Guerr ro v. Santo Thomas, 2010 Guam 11, ~37 (Sup. 20 21 Ct. Guam 2010). Accordingly, it seems that if the Plaintiff seeks to pursue its claim of unpaid
22 wages for the compensatory time earned under the GMWHA, the Plaintiff may be precluded from
23 seeking payment of money for any compensatory time earned in a suit premised solely on the 24 GMWHA, and the holding of Guerrero. 25 The Plaintiff may be able to distinguish his case and seek payment of a lump sum for 26 __.._- -- - - -.-_ __ .__ -__ ._____ -.......,.__..-.....:-----------------1---- Yun v. GMHA; CVI263-04 DECISION AND ORDER
1 compensatory time earned based on separation from government of service under Rule 7.406(B),
2 which states, "[a]t the time of separation, the employee shall be paid in cash for all unused 3 compensatory time credit earned at a rate of compensation not less than: 1. the average regular rate 4 received by such employee during the last three years ofthe employee's employment; or 2. the final 5 three regular rate(sic) received by such employee, whichever is higher." DOA Rule 6 7 7.406(B)(20ll). However, Plaintiff's Complaint does not allege three rates of pay by which to
8 make this computation. Moreover, there appears to be a maximum limitation on the number of
9 compensatory time hours which may be accrued and paid under Rule 7.405( C), which states that 10 unless, "employees engaged in non-law enforcement work may accrue not more than 240 hours 11 of compensatory time." DOA Rule 7.405(C)(20 11). The Plaintiff's Complaint currently requests 12 compensation for compensatory time in excess of 2,000 hours, based upon a single rate of pay, 13 14 $95.00 per hour. Accordingly, the Plaintiff will need to draft his amended complaint in
15 contemplation of these rules, or any applicable exceptions he can ascertain.
16 Attorneys Fees, Costs, and Interest 17 Under the GMWHA, in the event that a plaintiff prevails, "the court shall, in addition to 18 any judgment awarded to the plaintiff or plaintiffs ... allow a reasonable attorney's fee to be paid 19 by the defendant, and costs of the action." Id. If, on amendment, the Court finds that the Plaintiff 20 21 has properly stated a cause of action pursuant to 22 GCA § 3117(3), and that a contractual statute
22 of limitations will allow the Court to assert jurisdiction over the matter, allowing recovery of
23 unpaid wages, the Plaintiff will be entitled to costs and attorney's fees as a matter of right. In 24 addition, the Plaintiff has presented evidence concerning a prior request for payment which was 25 submitted by the employee/Plaintiff, in the form of a letter dated December 12, 2002. 26 ~ • • l.
Yun v. GMHA; CV1263-04 DECISION AND ORDER
I Accordingly, there could be a statutory basis upon which to award interest against the Defendant,
2 as a governmental agency, from that date, if so requested and properly alleged by the Plaintiff in 3 an amended complaint. 4 CONCLUSION 5 Judgment on the Pleadings is DENIED as to all issues at this time, as the Court grants 6 7 leave to the Plaintiff to AMEND his Complaint pursuant to Ru1e 15(a) and (c)(2), within 60 days
8 of the issuance of this Decision and Order. The amended complaint shall include a short, plain,
statement of the facts underlying any contract claims, and claims under the GMWHA, in order to 10 allow the Court to determine whether the Court has actual jurisdiction over this action. If such 11 amendment to allege contractual bases is not made within 60 days of this order, the Plaintiffs 12 Complaint shall be DISMISSED as barred both under the general three year statutes of limitations 13 14 applicable, including 7 GCA § 11305(1) and (8). Upon amendment of the Plaintiff' mplaint,
15 repairing the formal defects in the sufficiency ofthe allegations ofjurisdiction, the Court will allow
16 the Defendant the opportunity to renew any part of this motion which is applicable to the amended 17 complaint, by filing a new motion tailored to the amended complaint, so that the Court m ay 18 address the remaining issue of actual jurisdiction under Rules 12( c), (h)(3) and (b) 1). 19 20 21 SO ORDERED this _ _A_PR_l_1_L_0t_'_ __
22 23 24 Judg , Sup rior Court of Guam 25 26
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