AG says dialysis patient’s appeal is premature

Attorney General Pamela Brown said the appeal of land compensation claimant Rosario DLG. Kumagai is premature and therefore the high court should dismiss it.

Brown, through Assistant Attorney General Deborah L. Covington, asserted that the case involves multiple parties, but the resolution has been reached only as to Kumagai’s.

The Marianas Public Lands Authority as its co-defendant Victoria S. Nicholas remain in the case, according to Brown in her motion to dismiss the appeal.

Covington pointed out that appellant Kumagai has not obtained a certification pursuant to the Commonwealth Rules of Civil Procedures from the Superior Court following the decision from which she appeals.

The appellant’s failure to obtain such certification when a party to the action remains active divests the high court of jurisdiction, the government lawyer said.

Kumagai has been a dialysis patient at the Commonwealth Health Center since 1998.

Brown filed the lawsuit to stop MPLA from disbursing a total of $1.3 million in land compensation to Kumagai and Victoria S. Nicholas, who owned wetlands.

Brown, on behalf of the CNMI government, asked the court to enjoin the defendants and their attorneys or agents from drawing down a publicly financed Land Compensation Funds and disbursing $1,166,403.14 to Nicolas and $159,496.43 to Kumagai.

The plaintiff moved the court to issue a declaration that wetlands that are not used for right-of-way purposes cannot be compensated using Land Compensation Funds.

In Sept. 2005, Superior Court Associate Judge David A. Wiseman granted Kumagai’s motion to dismiss Brown’s lawsuit against her. The judge ordered the Commonwealth Development Authority to proceed with the disbursement of a requisition authorizing payment of $159,408 in land compensation to Kumagai.

Kumagai filed a motion for reconsideration.

On Dec. 7, Wiseman denied the motion. He said he was not impressed by Brown’s arguments in support of her opposition to Kumagai’s motion to dismiss and finds her motive for some of her actions highly questionable.

However, Wiseman said, “the court is unable to find objectively, that the Attorney General’s Office’s conduct, however, perfunctory, rises to the level clearly evincing bad faith.”

“For this reason, it would be imprudent for this Court to exercise its inherent power outside of statute or procedural rules to levy sanctions in the form of Kumagai’s attorneys’ fees,” he said.

Kumagai appealed. She insisted that sanctions in the form of attorney’s fees are necessary to “prevent manifest injustice.”

But Covington said “the law of the Commonwealth and the Ninth Circuit requires that in matters in which multiple parties appear, the adjudication of some of the claims or rights and liabilities of some, but not all, of the parties does not provide jurisdiction to appeal the decision absent a certification of a final judgment by the trial court pursuant to the Commonwealth and Federal Rules of Civil Procedures.”

There has never been a motion for a certification filed in the Superior Court, nor has the Superior Court issued a certification, said Covington in Brown’s motion to dismiss.

Furthermore, Covington said, the government still has pending claims against the other defendants, MPLA, and Nicholas.