Motion to dismiss contractor’s suit vs ex-DFEMS chief, fire inspector denied

The federal court has denied the motion of former Department of Fire and Emergency Medical Services Commissioner Claudio K. Norita and a DFEMS fire inspector to dismiss a lawsuit filed against them by a construction contractor.

U.S. District Court for the NMI Chief Judge Ramona V. Manglona stated that there is little doubt that Norita’s and co-defendant fire inspector Anthony Babauta’s alleged actions, if true, violated the Due Process Clause in connection with Double A Corp.’s lawsuit.

In its lawsuit filed last March, Double A is suing Norita and Babauta for allegedly causing it to lose $410,150 in a potential contract when they refused to accept its permit application.

Double A, which specializes in installing fire suppression systems, is suing the defendants for deprivation of property interest and deprivation of a liberty interest without due process.

Norita and Babauta, through the Office of the Attorney General, filed a motion for summary judgment on the grounds of qualified immunity. The motion basically seeks dismissal of the lawsuit.

In her order last Tuesday that denied the defendants’ motion, Manglona ruled that the first and second prongs of a qualified immunity analysis are satisfied, and that Norita and Babauta’s motion for summary judgment based on qualified immunity fails.

Qualified immunity refers to protection to an official who “reasonably but mistakenly believed that his or her conduct did not violate a clearly established constitutional right.”

Manglona pointed out that the issue at this stage is not whether Double A has enough evidence to potentially win at trial. Instead, Manglona said, the only question is whether Double A alleged a violation of a clearly established constitution right.

“Any factual arguments must wait until the close of discovery when the record is fleshed out,” the judge pointed out.

Manglona said that, at the Nov. 21 hearing, Norita’s counsel conceded that the fire code did require Double A to obtain a permit before installing a sprinkler system.

“In other words, withholding the permit served as a complete prohibition to Double A’s occupation of installing fire sprinklers,” said Manglona, adding that Double A therefore had a valid liberty interest in securing the permit.

The judge said viewing the disputed facts most favorably to Double A, as the court must do on summary judgment, Norita and Babauta did not give even minimal due process.

At the very least, Manglona said, they could not deny the permit without notifying Double A of their reasons and offering a meaningful opportunity to respond.

Manglona said the fire code recognizes this, stating: “If the application or the construction documents do not conform to the requirements of pertinent laws, the fire code official shall reject such application in writing, stating the reasons therefor.”

Instead, the judge said, Norita and Babauta rebuffed Double A’s inquiries and gave only a terse, verbal rationale that they denied the permit due to a past installation error involving “speaker wire.”

Manglona said that explanation was inadequate because it did not include any corresponding legal basis for denying the application on those grounds.

Manglona said Norita and Babauta did not inform Double A of any section of fire code or other law empowering them to consider past installation errors when reviewing an application.

The judge said both Norita and Babauta in their affidavits both claim that the list Double A refers to is merely a record of who has obtained permits in the past and does not bar anyone else from a receiving one.

In his affidavit, Norita alleges that he never reviewed or denied Double A’s application.

Babauta in his affidavit, by contrast, refutes Double A’s allegations on the grounds that he does not have the final authority to grant a permit, and that he was not at work in November 2017 when the alleged encounters occurred.

Manglona said that, according to the complaint, it was on Nov. 3, 2017, when Double A reached an agreement with Proper Grand to perform the fire sprinkler system installation work.

Manglona said declarations from Double A’s project manager Antonie Santos and business consultant, Thomas S. Salas, state that the application and follow-up meetings began in December 2017 and continued into January 2018.

Yet, Manglona said, Babauta only claims that, due to a leave from work, he never reviewed any applications submitted the month before.

The judge said regardless, even if both affidavits squarely denied every word of Salas’ declaration, that would merely create a factual issue for trial.

“It is not the role of the court on summary judgment to weigh competing affidavits,” Manglona pointed out.

In its lawsuit, Double A, through counsel Joseph E. Horey, asked the court to hold Norita and Babauta liable to pay the company an unspecified amount of damages, court costs, and attorney’s fees.

According to Horey in the complaint, on Oct. 20, 2017, Double A submitted a quotation to Proper Grand CNMI LLC for the fire sprinkler system installation work in a complex of buildings operated by Proper Grand known as Sugar King Dormitory.

Horey said Proper Grand agreed to hire Double A for the project at a price of $410,150.