Hocog bid to dismiss Yamamoto suit is denied

A federal judge denied yesterday a motion to dismiss the lawsuit filed against Lt. Gov. Victor Hocog and the owners of cargo vessel M/V Luta.

U.S. District Court for the NMI designated judge Frances M. Tydingco-Gatewood made the decision yesterday, saying the claims against Hocog and M/V Luta owners Luta Mermaid LLC, Abelina T. Mendiola, Deron T. Mendiola, Fidel S. Mendiola III, and Fidel Mendiola Jr. do not have to be verified.

In so doing, Tydingco-Gatewood said, the court does not reach the question of whether Takahisa Yamamoto’s late verification of the first amended complaint was effective.

In his first amended complaint last December, Yamamoto, through George Lloyd Hasselback, claimed that Hocog, who at the time was a Rota senator, promised to use his political position and influence to ensure that Yamamoto’s investment in M/V Luta would profit.

Yamamoto is suing Hocog and the ship’s owners for allegedly refusing to pay back the $3.4 million that he funded for the vessel.

Hocog, through Jeffrey A. Moots, asked the court to dismiss the amended complaint. The ship’s owners joined in Hocog’s motion.

The sole grounds on which Hocog and the ship’s owners’ motion for dismissal of the lawsuit is that the first amended complaint, unlike the initial complaint, is not verified.

In response, Yamamoto tried to cure the alleged defect by filing a separate document in which he purports to verify the first amended complaint.

Hocog maintains that the late verification, made two weeks after the first amended complaint was filed, was ineffective.

In her ruling, Tydingco-Gatewood said to decide the motion, it is not necessary to determine whether the subsequent verification was effective.

Tydingco-Gatewood said admiralty claims against defendants in personam require verification only if the plaintiff seeks to attach or garnish property found within the jurisdiction, which belongs to defendants who are not found in the jurisdiction.

The judge said Hocog and the vessel’s owners reside within the jurisdiction, and Yamamoto has not sought to attach M/V Luta or any other property belonging to Hocog and the ship’s owners.

Therefore, the judge noted, Yamamoto’s complaint in admiralty against defendants personally need not be verified.

Tydingco-Gatewood said verification was required only for the in rem claim, by which Yamamoto asserted a maritime lien for necessaries against M/V Luta and obtained a warrant to arrest it.

In rem claim refers to a type of legal proceedings, taken in an admiralty court in a common law jurisdiction, against the ship and sometimes cargo as defendant.

Tydingco-Gatewood said that in rem claim effectively dropped out of Yamamoto’s lawsuit when the court found a lack of probable cause to support the arrest of M/V Luta and released the vessel.

The judge said Yamamoto may proceed against Hocog, Luta Mermaid, and the Mendiolas in personam, and if he prevails he will obtain a judgment against them personally.