CUC questions non-inclusion of Fitial, Buckingham in SDLLC suit

The lawsuit filed by Saipan Development LLC against the Commonwealth Utilities Corp. over the botched power purchase agreement should be dismissed because SDLLC failed to include former governor Benigno R. Fitial, former attorney general Edward T. Buckingham, and the CNMI government, according to CUC.

In CUC’s motion to dismiss the lawsuit filed in the U.S. District Court for the NMI on Wednesday, CUC legal counsel Deborah Fisher asserted, among other things, that SDLLC’s court action failed to join necessary parties—Fitial, Buckingham, and the CNMI government.

The then governor Fitial and then AG Buckingham signed off on the 25-year, $190.8-million power purchase agreement on Aug. 3, 2012.

Fisher cited that Federal Rules of Civil Procedure Rule 19 provides for required joinder of parties.

“Generally, a party must be joined if, in its absence, the court cannot accord complete relief among existing parties,” the CUC counsel pointed out.

Fisher added that the lawsuit should be dismissed because it did not explain the reasons for nonjoinder of necessary parties—Fitial, Buckingham, and the CNMI government.

Fisher said Rule 19 (c) requires that a plaintiff plead the reasons for not joining a party when asserting a claim for relief.

She said a complaint must state “the name, if known, of any person who is required to be joined if feasible but is not joined, and the reasons for not joining that person.”

Fisher said SDLLC’s complaint should be dismissed because it did not state the name of persons who would be required to be joined if feasible but were not joined, as well as the reasons for not joining those persons.

Fisher said the unnamed parties that entered into this illegal power purchase agreement and other contracts should be held liable, not CUC.

“If the unnamed parties are not made part of this lawsuit, then the utility will have to pursue the unnamed parties separately to recover,” she said.

In the same motion, Fisher asserted that even if Fitial signed the PPA and other contracts with SDLLC as then governor of the CNMI, he was still required to adhere to the CNMI procurement regulations.

SDLLC is suing CUC for breach of express contract and implied-in-fact contract over the voided controversial PPA it signed with then governor Fitial.

The Delaware-based contractor of the PPA asked the court to award the company damages for its reliance on the CUC promise, and the amount incurred while evaluating, negotiating, and preparing to perform under the PPA to build a power plant.

The alleged secretive signing of the no-bid, 25-year PPA was one of the issues that led to the filing of impeachment charges against Fitial, who subsequently resigned as governor.