Federal court: Sapuro’s removal of Fund lawsuit improper

The U.S. District Court for the NMI has found improper Commonwealth Retirement Association board member Sapuro Rayphand’s removal of the NMI Retirement Fund’s lawsuit against the Fitial administration from the Superior Court.

In a ruling issued yesterday, designated Judge Frances M. Tydingco-Gatewood remanded the Fund’s lawsuit to the Superior Court and ordered Rayphand to pay attorney’s fees and costs to the Fund.

In her eight-page order, Tydingco-Gatewood noted that much of Rayphand’s argument for intervention is nonsensical and unrelated to the issues.

Rayphand’s counsel in the case is attorney Bruce Jorgensen.

Fund legal counsel Braddock J. Huesman said yesterday that the Fund is pleased that it may now continue its efforts to collect and looks forward to hearings that were delayed by Rayphand’s actions.

Tydingco-Gatewood said that Jorgensen raises issues regarding CNMI immigration problems dating as far back as 1999, and discusses issues related to his practice of law in the CNMI.

“The court understands that Mr. Rayphand may be frustrated with the pace of the local Superior Court case, but frustration alone is not a basis for removal to a federal court,” Tydingco-Gatewood said.

The judge said a cursory consideration of Ninth Circuit law would have shown that this attempt of removal was improper.

“Accordingly, the court finds that an award of attorney’s fees is appropriate,” Tydingco-Gatewood said.

The amount, she said, will be determined upon receipt of evidence establishing the amount of reasonable attorney’s fees and costs that were incurred as a result of the removal of the lawsuit.

In light of this order, Tydingco-Gatewood determined as moot Rayphand’s cross motion to strike.

On Sept. 8, 2011, Rayphand, through Jorgensen, notified the District Court that he wants the Fund’s lawsuit against the CNMI government to be removed from the Superior Court and transferred to the federal court.

Rayphand stated that it has been more than two years now since associate judge Kenneth Govendo rendered a $230 million judgment against the CNMI government in favor of the Fund, yet there has been little, if any, meaningful steps toward enforcement of that judgment.

The Fund filed a motion to remand and attorneys’ fees. Defendants Gov. Benigno R. Fitial, Lt. Gov. Eloy Inos joined in the motion.

In granting the Fund’s motion, Tydingco-Gatewood pointed out that while Rayphand’s pleadings indicate that the removal was initiated on behalf of the Commonwealth Retirement Association, it appears, in fact, that Rayphand filed the notice of removal on his own without actual board approval.

Tydingco-Gatewood said because it is clear to this court that Rayphand is not a defendant and his notice of removal did not comport with the rule requiring unanimity of defendants, consideration of the other bases for remand is unnecessary.

After reviewing the records, it is clear to the court that Rayphand is neither a defendant nor an intervenor, Tydingco-Gatewood said.

Moreover, the judge said, the cases cited by Rayphand are not applicable in this instance.

“Accordingly, it was improper for Mr. Rayphand to remove the matter from the Superior Court of the CNMI to this court,” she said.