Marisco, Ltd. v. Sailele, The Tug Boat et al
Filing
194
AMENDED ORDER GRANTING BANK OF HAWAII'S MOTION FOR INJUNCTIVE RELIEF 162 AND GRANTING MARISCO, LIMITED'S SUBSTANTIVE JOINDER 169 . Signed by JUDGE LESLIE E. KOBAYASHI on 12/3/2012. ~ Order amends order filed 11/2 8/2012, docket entry no. 192 ~ (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARISCO, LTD., a Hawaii
corporation,
)
)
)
)
Plaintiff,
)
vs.
)
)
AMERICAN SAMOA GOVERNMENT,
)
)
)
Defendant and
)
Third-Party
)
Plaintiff,
)
)
vs.
)
)
TERRY R. CONDEN,
)
)
Third-Party
)
Defendant.
_____________________________ )
CIVIL NO. 10-00137 LEK-BMK
AMENDED ORDER GRANTING BANK OF HAWAII’S MOTION FOR INJUNCTIVE
RELIEF AND GRANTING MARISCO, LIMITED’S SUBSTANTIVE JOINDER
Before the Court is Garnishee Bank of Hawaii’s (“BOH”)
Motion for Injunctive Relief (“Motion”), filed on October 18,
2012.
[Dkt. no. 162.]
On October 24, 2012, Plaintiff/
Counterclaim Defendant Marisco, Limited (“Marisco”) filed its
substantive joinder in the Motion (“Joinder”), and Defendant/
Counter Claimant/Third Party Plaintiff American Samoa Government
(“ASG”) filed its memorandum in opposition.
171.]
[Dkt. nos. 169,
These matters came on for hearing on October 26, 2012.
Appearing on behalf of BOH was Robert Marks, Esq., appearing on
behalf of Marisco was Mark Desmarais, Esq., and appearing on
behalf of ASG was Mark Hamilton, Esq.
After careful
consideration of the Motion, the Joinder, supporting and opposing
memoranda, and the arguments of counsel, BOH’s Motion and
Marisco’s Joinder are HEREBY GRANTED for the reasons set forth
below.
BACKGROUND
The relevant background is set forth in this Court’s
Order Granting Marisco Ltd.’s Ex Parte Request for Order
Directing Disbursement of Funds from Garnishee Bank of Hawai`i
and Granting in Part and Denying in Part Bank of Hawaii’s Motion
for Instructions, filed August 23, 2012 (“Disbursement Order”),
2012 WL 3686088, and this Court’s Order Granting in Part and
Denying in Part Garnishee Bank of Hawaii’s Motion for
Interpleader, filed October 5, 2012 (“Interpleader Order”), 2012
WL 4764590,1 both of which this Court incorporates by reference.
On October 22, 2012, pursuant to the Interpleader
Order, BOH deposited the sum of $824,071.15 (“the Interpleader
Funds”) with this district court.
[Amended Notice of Deposit of
Interpleader Funds, filed 10/23/12 (dkt. no. 168).]
The district
court will maintain the Interpleader Funds in a non-interest
bearing account.2
1
On September 11, 2012, ASG filed its Notice of Appeal from
the Interpleader Order. [Dkt. no. 140.]
2
On October 17, 2012, this Court issued an order stating
that, if BOH wanted to deposit the Interpleader Funds in an
interest bearing account, BOH had to either submit a stipulation
(continued...)
2
I.
Motion
In the instant Motion, BOH requests “equitable relief
in the form of a restraining order or injunction against [ASG]
and its attorneys from litigating claims against the interpleaded
funds.”
[Mem. in Supp. of Motion at 3 (footnote omitted).]
As
noted in the Disbursement Order and the Interpleader Order, in
American Samoa Government v. Bank of Hawaii, et al., Trial
Division, HCCA No. 29-12 (“ASG v. BOH”), the High Court of
American Samoa (“High Court”) has already issued a preliminary
injunction ordering BOH to restore the funds that BOH froze from
ASG’s account.
ASG filed an Expedited Motion to Enforce
Preliminary Injunction and for Sanctions Against Bank of Hawaii,
which was set for hearing before the High Court on October 31,
2012.3
BOH argues that, unless this Court grants the instant
Motion and enjoins or restrains ASG from continuing to litigate
ASG v. BOH, “a judgment, enforcement order or contempt citation
might well issue in favor of ASG as to the interpleaded funds.”
[Id. at 4.]
Thus, although BOH deposited the Interpleader Funds
with this district court, in the absence of an injunction or a
2
(...continued)
by the parties or file a motion. [Dkt. no. 161.] Insofar as BOH
did not do either by the October 22, 2012 deadline to deposit the
funds, the Interpleader Funds were deposited in a non-interest
bearing account. Interpleader Order, 2012 WL 4764590, at *11.
3
At this Court’s suggestion, ASG and BOH later stipulated
to continue the October 31, 2012 hearing on that motion.
3
restraining order, it may be compelled to restore an equal amount
to ASG’s account pursuant to the High Court’s order.
According
to BOH, that would effectively force BOH to pay the judgment
entered in this case in favor of Marisco and against ASG.
[Id.
at 5.]
BOH first argues that it is entitled to an injunction
pursuant to Fed. R. Civ. P. 65 because its reputation and
goodwill will suffer irreparable harm if the High Court enforces
its preliminary injunction order.
BOH notes that a daily
newspaper in American Samoa has already published a number of
articles about ASG v. BOH, and the articles are highly critical
of BOH.
BOH also argues that, even if BOH eventually obtained a
judgment against ASG in ASG v. BOH, it is unlikely that ASG would
ever pay the judgment.
[Id. at 6-8.]
BOH also contends that it is entitled to an injunction
under equitable principles.
BOH notes that 28 U.S.C. § 2361
codified these equitable principles, but district courts
possessed such equitable powers long before the enactment of
§ 2361.4
BOH argues that an injunction is appropriate because
BOH faces a significant uncertainty as to whom it must pay the
Interpleader Funds to and it faces a significant risk of double
liability.
[Id. at 8-10.]
4
Insofar as the Interpleader Order previously rejected any
of BOH’s arguments for an injunction, BOH seeks reconsideration
of the Interpleader Order. [Mem. in Supp. of Motion at 8 n.14.]
4
In the alternative, BOH asserts that this Court can
also issue an injunction pursuant to: its “equitable powers by
analogy to statutory interpleader standards[;]” the All Writs
Act, 28 U.S.C. § 1651; and its “inherent power to preserve the
integrity of the judicial process.”
[Id. at 10-11.]
BOH notes
that this Court stated in the Interpleader Order that there was
no indication that ASG intended to institute other proceedings
involving the Interpleader Funds, but BOH argues that this is
irrelevant because of the proceedings in ASG v. BOH.
BOH
emphasizes that it is not asking this Court to restrain or enjoin
the High Court; BOH argues that this Court should enjoin ASG from
proceeding with ASG v. BOH to preserve the judicial process in
the instant case, consistent with the Congressional intent of
§ 2361.5
II.
[Id. at 11.]
Marisco’s Joinder
In its Joinder, Marisco argues that, in ASG’s
memorandum preceding the Disbursement Order, ASG raised its
argument that this Court had no jurisdiction over bank accounts
allegedly domiciled in American Samoa, and this Court rejected
that argument.
Although the Disbursement Order noted that ASG
5
BOH states that 28 U.S.C. § 2361, which applies to
interpleader actions pursuant to 28 U.S.C. § 1335, is not
directly applicable in this case because of jurisdictional
reasons. [Mem. in Supp. of Motion at 11.] BOH states that it
cannot file a § 1335 interpleader action because there would not
be minimum diversity of the parties. [Id. at 2 n.3.]
5
raised this argument, this Court concluded that ASG submitted
itself to the jurisdiction of this district court and concluded
that American Samoa law did not apply because the “separate
entity rule” was inapplicable.
[Joinder at 2-3.]
Marisco
therefore argues that this Court has already considered and
rejected ASG’s position and that this Court should grant the
Motion because BOH is likely to succeed on the merits of the
issue of the applicability of American Samoa law.
[Id. at 4.]
III. ASG’s Memorandum in Opposition
ASG first emphasizes that there is a national policy
that federal courts should not stay or enjoin pending state court
proceedings except under special circumstances.
[Mem. in Opp. at
4 (citing Younger v. Harris, 401 37, 41 (1971)).]
ASG argues
that, pursuant to Younger and other United States Supreme Court
case law, this Court should not interfere in the on-going ASG v.
BOH, which ASG brought in its sovereign capacity.
[Id. at 5-6.]
ASG notes that the Ninth Circuit considers the
following factors when determining whether abstention is
appropriate: whether the state proceedings are ongoing; whether
the proceedings implicate important state interests; and whether
there is an adequate opportunity to address federal questions in
the state proceedings.
favor abstention.
ASG argues that all of these factors
[Id. at 6 (some citations omitted) (citing
6
Fresh International Corp. v. Agricultural Labor Relations Bd.,
805 F.3d 1353, 1357-58 (9th Cir. 1986)).]
ASG also notes that the policies articulated in Younger
and other cases are also codified in 28 U.S.C. § 2283.
ASG
emphasizes that there is no Act of Congress expressly authorizing
district courts to enjoin the High Court from enforcing American
Samoa law, and the issues in ASG v. BOH are not issues that this
Court has ruled upon in this action.
ASG therefore argues that
an injunction would not aid in this Court’s jurisdiction, nor
would it help to project or effectuate the judgment in this case.
Thus, ASG contends that this Court does not have the authority
under § 2283 to grant the instant Motion.
Further, to the extent
that there are any doubts about whether this Court has the
authority to enjoin ASG v. BOH, United States Supreme Court case
law requires this Court to resolve those doubts in favor of
allowing ASG v. BOH to go forward.
[Id. at 7.]
As to BOH’s request for an injunction pursuant to Rule
65, ASG argues that the High Court has already ruled in its
preliminary injunction order that BOH is not likely to succeed on
the merits of ASG v. BOH, and the High Court also denied BOH’s
motion for reconsideration of the preliminary injunction order
and BOH’s motion to stay the injunction order.
Further, ASG
contends that, even apart from the High Court’s rulings, an
examination of the issues of American Samoa law in ASG v. BOH
7
indicates that BOH is not likely to succeed on the merits.
at 8-9.]
[Id.
ASG also argues that BOH’s requested injunction is not
in the public interest because the people of American Samoa have
a fundamental interest in seeing American Samoa laws enforced,
and the people of Hawai`i have little or no interest in the
issues in ASG v. BOH.
[Id. at 9-10.]
Further, ASG asserts that
BOH’s claim of irreparable harm is speculative, which is
insufficient for an injunction.
BOH has offered no evidence that
the enforcement of the preliminary injunction order in ASG v.
BOH, a judgment in that case, or media coverage of that case,
will have any effect on BOH’s customers or potential customers.
ASG emphasizes that it has no control over the media coverage
regarding ASG v. BOH.
[Id. at 11-12.]
As to BOH’s request for an injunction pursuant to this
Court’s equitable powers, ASG notes that, before moving to
deposit the Interpleader Funds, BOH was aware of the conflicting
orders by this Court and the High Court.
ASG also states that
BOH was aware that Marisco was not going seek enforcement under
the circumstances.
ASG argues that BOH could have complied with
the High Court’s preliminary injunction order, but BOH decided to
move for interpleader in this district court.
Thus, ASG argues
that “BOH created the situation it now faces” and therefore BOH
is not entitled to equitable relief because BOH has unclean
hands.
[Id. at 14.]
ASG also asserts that BOH has unclean hands
8
because BOH has “consistently opposed ASG’s motions before the
High Court, sought reconsideration of its decisions and actively
sought to take the funds from ASG and provide them to Marisco.”
[Id. at 15 n.1.]
As to BOH’s request for an injunction pursuant to the
All Writs Act, 28 U.S.C. § 1651, ASG argues that the All Writs
Act is restricted by the Anti-Injunction Act, including § 2283.
Thus, the All Writs Act does not apply, and § 2283 prohibits an
injunction in this instance.
ASG therefore urges the Court to
deny BOH’s Motion.
In addition, ASG argues that this Court erred in
granting BOH’s Motion for Interpleader because BOH cannot satisfy
the diversity requirements of Fed. R. Civ. P. 22, which requires
diversity between the stakeholder and the claimants.
[Id. at 11
(some citations omitted) (citing Lee v. West Coast Life Ins. Co.,
688 F.3d 1004, 1008 n.1 (9th Cir. 2012)).]
ASG contends that
this Court must vacate the Interpleader Order and deny the Motion
for Interpleader with prejudice because BOH, the stakeholder, and
Marisco, one of the claimants, are both citizens of Hawai`i.
[Id.]
To the extent that BOH seeks reconsideration of the
Interpleader Order pursuant to Fed. R. Civ. P. 59(e), ASG argues
that BOH’s request is untimely.
To the extent that BOH seeks
reconsideration pursuant to Fed. R. Civ. P. 60(b)(6), ASG
9
contends that BOH has not established that reconsideration is
required.
IV.
[Id. at 12-14.]
Relevant Post-Hearing Filings
On November 2, 2012, ASG filed its Notice of Appeal
from the Interpleader Order.
[Dkt. no. 181.]
In connection with the instant Motion, BOH has filed
several notices regarding the filing of pleadings in ASG v. BOH.
[Dkt. nos. 172, 173, 188, 190.]
In particular, BOH’s notice
filed on November 14, 2012 alerted this Court to the fact that,
on November 13, 2012, ASG filed a new action in the High Court,
American Samoa Government v. Bank of Hawaii, Trial Division, HCCA
# 46-12 (“ASG v. BOH 2”).
[Dkt. no. 190.]
The Complaint in ASG
v. BOH 26 alleges, inter alia, that this Court “has refused to
grant full faith and credit to American Samoa laws as required by
the Untied States Constitution, and has encouraged BOH to violate
those laws though its rulings.”
[ASG v. BOH 2 Complaint at ¶ 5.]
It further states:
6.
While ASG disagrees with the Hawaii
Court’s orders and objects to the Hawaii Court’s
interference with ASG’s enforcement of local laws,
in the interest of avoiding further conflicts with
the Hawaii Court and threats of being sanctioned
by the federal court, ASG reluctantly agreed to
postpone enforcement of the [High Court’s]
6
The Complaint in ASG v. BOH 2 is attached to BOH’s
November 14, 2012 Notice of Filing of Pleadings in the High Court
of American Samoa in Related Litigation as Exhibit A. [Dkt. no.
190-1.] The ASG v. BOH 2 Complaint refers to this Court as “the
Hawaii Court”.
10
Injunction Order. In addition, ASG will agree to
hold-off further proceedings in the Injunction
Action for now.
7.
Instead, ASG has commenced this separate
enforcement action, which allows ASG to fulfill
its obligation to the people of American Samoa to
enforce its laws while simultaneously avoiding
conflicts with the prior orders of the Hawaii
Court.
[Id. at ¶¶ 6-7.]
DISCUSSION
I.
Rule 65 Injunction
In general, the standard for a temporary restraining
order or a preliminary injunction is as follows:7
“[I]njunctive relief is an extraordinary
remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such
relief.” Winter v. Natural Res. Def. Council,
Inc., 129 S. Ct. 365, 376 (2008). The standard
for granting a preliminary injunction and the
standard for granting a temporary restraining
order are identical. See Haw. Cnty. Green Party
v. Clinton, 980 F. Supp. 1160, 1164 (D. Haw.
1997); Fed. R. Civ. P. 65.
Sakala v. BAC Home Loans Servicing, LP, CV. No. 10-00578 DAE-LEK,
2011 WL 719482, at *4 (D. Hawai`i Feb. 22, 2011) (alteration in
original).
A plaintiff seeking a preliminary injunction
must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and
7
Although BOH does not seek a “preliminary” injunction, to
the extent that BOH relies upon Fed. R. Civ. P. 65, the same
analysis applies.
11
that an injunction is in the public interest. Am.
Trucking Ass’ns v. City of Los Angeles, 559 F.3d
1046, 1052 (9th Cir. 2009) (quoting Winter v.
Natural Res. Def. Council, Inc., --- U.S. ----,
129 S. Ct. 365, 374, 172 L. Ed. 2d 249 (2008))
(explaining that, “[t]o the extent that [the Ninth
Circuit’s] cases have suggested a lesser standard,
they are no longer controlling, or even viable”
(footnote omitted)); see also Winter, 129 S. Ct.
at 374-76 (holding that, even where a likelihood
of success on the merits is established, a mere
“possibility” of irreparable injury is
insufficient to warrant preliminary injunctive
relief, because “[i]ssuing a preliminary
injunction based only on a possibility of
irreparable harm is inconsistent with [the Supreme
Court’s] characterization of injunctive relief as
an extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is
entitled to such relief”).
Painsolvers, Inc. v. State Farm Mut. Auto. Ins. Co., 685 F. Supp.
2d 1123, 1128-29 (D. Hawai`i 2010) (footnote and some citations
omitted) (alterations in Painsolvers).
The Ninth Circuit has
held that its “serious questions” version of the sliding scale
test for preliminary injunctions8 survives Winter to the extent
8
The Ninth Circuit has stated the sliding scale test as
follows:
“A preliminary injunction is appropriate when
a plaintiff demonstrates ‘either: (1) a likelihood
of success on the merits and the possibility of
irreparable injury; or (2) that serious questions
going to the merits were raised and the balance of
hardships tips sharply in [the plaintiff’s]
favor.’” Lands Council v. Martin (Lands Council
II), 479 F.3d 636, 639 (9th Cir. 2007) (quoting
Clear Channel Outdoor Inc. v. City of Los Angeles,
340 F.3d 810, 813 (9th Cir. 2003)). These two
options represent extremes on a single continuum:
“the less certain the district court is of the
(continued...)
12
that a court may grant a preliminary injunction where the
plaintiff (1) “demonstrates . . . that serious questions going to
the merits were raised and the balance of hardships tips sharply
in the plaintiff’s favor[,]” and (2) satisfies the other Winter
factors, likelihood of irreparable injury and that the injunction
is in the public interest.
Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (citation and
block quote format omitted) (some alterations in original).
A.
Irreparable Harm
Typically, monetary harm does not constitute
irreparable harm.
Los Angeles Mem’l Coliseum Comm’n v. Nat’l
Football League, 634 F.2d 1197, 1202 (9th Cir. 1980).
This is so
because “economic damages are not traditionally considered
irreparable because the injury can later be remedied by a damage
award.”
Cal. Pharmacists Ass’n v. Maxwell–Jolly, 563 F.3d 847,
852 (9th Cir. 2009).
Thus, insofar as it is likely that the High
Court will require BOH to restore an amount equal to the
Interpleader Funds to ASG’s account, that is a monetary harm
which does not constitute irreparable harm for purposes of an
8
(...continued)
likelihood of success on the merits, the more
plaintiffs must convince the district court that
the public interest and balance of hardships tip
in their favor.” Id.
Lands Council v. McNair, 537 F.3d 981, 987 (9th. Cir. 2008) (en
banc) (some citations and internal quotation marks omitted)
(alteration in original).
13
injunction.
BOH argues that its monetary harm would be
irreparable because, even if were to obtain a judgment against
ASG, it is doubtful that BOH would be able to collect in light of
ASG’s failure to pay a 2009 judgment in an unrelated case.
[Mem.
in Supp. of Motion at 7 & n.13 (citing Motion, Decl. of Robert A.
Marks, Exh. 5 (newspaper article dated 9/24/12)).]
BOH’s
argument, however, is speculative, and “[s]peculative injury
cannot be the basis for a finding of irreparable harm.”
In re
Excel Innovations, Inc., 502 F.3d 1086, 1098 (9th Cir. 2007)
(citation omitted).
BOH’s likely monetary harm therefore does
not constitute irreparable harm for purposes of an injunction.
BOH also states that a daily newspaper in Samoa has run
a number of articles about the instant case and ASG v. BOH.
According to BOH, the articles are “highly critical of BOH” and
are “injurious” to BOH’s goodwill and “trust of its customers[.]”
[Mem. in Supp. of Motion at 6-7.]
This Court has recognized
that, “‘[a]lthough the loss of goodwill and reputation are
important considerations in determining the existence of
irreparable injury, there must be credible and admissible
evidence that such damage threatens Plaintiff’s businesses with
termination.’”
Am. Promotional Events, Inc.--Nw. v. City & Cnty.
of Honolulu, 796 F. Supp. 2d 1261, 1283-84 (D. Hawai`i 2011)
(quoting Dotster, Inc. v. Internet Corp. for Assigned Names &
Nos., 296 F. Supp. 2d 1159, 1163–64 (C.D. Cal. 2003)).
14
BOH has
not presented any evidence of an actual or imminent loss of
goodwill or business reputation, and its conclusory allegations
of harm do not support a finding of irreparable harm for purposes
of an injunction.
See id.
This Court, however, notes that both BOH and Marisco
acted in reliance on and in compliance with this Court’s orders.
Further, the proceedings in ASG v. BOH and ASG v. BOH 2, in which
Marisco is not even a party, essentially challenge this Court’s
rulings outside the scope of the Ninth Circuit appeals that ASG
has already filed.
The High Court cases threaten to undermine
both the authority of this Court as well as BOH’s and Marisco’s
reliance on this Court’s orders.
As this Court has repeatedly
noted, ASG voluntarily submitted itself to the jurisdiction of
this district court in this action.
Marisco and BOH were
entitled to rely on the validity of the orders entered in this
action with the full participation of ASG.
If parties that do
not prevail in a federal court action can simultaneously appeal
the decision and, without the presence of the prevailing party,
file actions in other jurisdictions to challenge the original
decision, it would strip the original decision and the original
proceedings of any authority or validity.
In short, such actions
attack and seek to undermine the fundamental reliability and
credibility of court orders.
This Court therefore FINDS that
both Marisco and BOH are currently suffering irreparable harm to
15
their justifiable reliance on the validity of the proceedings and
court orders in this action.
B.
Likelihood of Success
As to the requirement that the party seeking an
injunction establish a likelihood of success on the merits, the
issue is not whether ASG is likely to prevail on the issues of
American Samoa law raised in ASG v. BOH and ASG v. BOH 2.
This
Court has already rejected the argument that American Samoa
statutes govern the issue of whether Marisco properly garnished
ASG’s funds pursuant to the Writ of Execution.
In the instant
Motion, the issue is whether the Ninth Circuit will affirm this
Court’s orders in ASG’s pending appeals.
This Court stands
behind its rulings and analysis in the Disbursement Order and the
Interpleader Order, and therefore this Court FINDS that BOH and
Marisco are likely to succeed on the merits of the Ninth Circuit
appeals.
C.
Balance of the Equities
“To determine which way the balance of the hardships
tips, a court must identify the possible harm caused by the
preliminary injunction against the possibility of the harm caused
by not issuing it.”
Univ. of Hawai`i Prof’l Assembly v.
Cayetano, 183 F.3d 1096, 1108 (9th Cir. 1999).
As this Court has previously noted, Marisco and BOH are
suffering irreparable harm because ASG is attempting to undermine
16
the authority of this Court’s orders, upon which Marisco and BOH
justifiably relied.
Further, BOH will be forced to continue to
spend its time and resources to defend against the additional
proceedings ASG has, and may bring in the future, in the High
Court.
BOH and Marisco will continue to suffer these harms if
the Court denies the Motion.
In contrast, ASG will suffer
minimal harm if this Court grants the Motion and issues the
injunction.
Even if this Court were to deny the instant Motion
and the High Court were to require BOH to reinstate an amount
equal to the Interpleader Funds to ASG’s account, that would not
extinguish ASG’s obligation to pay the judgment in favor of
Marisco.
This Court therefore FINDS that the balance of the
equities factor weighs in favor of issuing the injunction.
D.
Public Interest
This Court has recognized the following principles
relevant to the public interest inquiry:
The plaintiffs bear the initial burden
of showing that the injunction is in the
public interest. See Winter [v. Natural
Resources Defense Council, Inc.], [555 U.S.
7,] 129 S. Ct. [365,] 378 [(2008)]. However,
the district court need not consider public
consequences that are “highly speculative.”
In other words, the court should weigh the
public interest in light of the likely
consequences of the injunction. Such
consequences must not be too remote,
insubstantial, or speculative and must be
supported by evidence.
Finally, the district court should give
due weight to the serious consideration of
17
the public interest in this case that has
already been undertaken by the responsible
state officials . . . who unanimously passed
the rules that are the subject of this
appeal. See Golden Gate Rest. Ass’n [v. City
and County of San Francisco], 512 F.3d [1112]
at 1127 [(9th Cir. 2008)] (“The public
interest may be declared in the form of a
statute.” (internal quotation marks
omitted)); see also Burford v. Sun Oil Co.,
319 U.S. 315, 318, 63 S. Ct. 1098, 87 L. Ed.
1424 (1943) (“[I]t is in the public interest
that federal courts of equity should exercise
their discretionary power with proper regard
for the rightful independence of state
governments in carrying out their domestic
policy.” (internal quotation marks omitted)).
Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139–40
(9th Cir. 2009) (some citations and quotation
marks omitted). The public interest inquiry
primarily addresses the impact on non-parties
rather than parties.
Am. Promotional Events, 796 F. Supp. 2d at 1284-85 (alterations
in Am. Promotional Events).
This Court also finds that the public has the same
interest in relying on the validity of court orders that BOH and
Marisco have.
This Court appreciates that the judgment in this
case and the amount garnished from ASG’s account represent a
significant portion of ASG’s general funds and the use of ASG’s
general funds impacts the people of American Samoa.
ASG,
however, entered in a contract with Marisco, and both the
arbitrator and this Court have determined that ASG is obligated
to pay Marisco the amount reflected in the judgment.
Further,
ASG has not appealed the judgment; the pending appeals only
18
address the manner in which Marisco attempted to collect upon the
judgment.
Thus, while the public in American Samoa arguably have
an interest in having the disputed funds returned to ASG’s BOH
account, that interest is not significant for purposes of the
injunction analysis.
This Court therefore FINDS that the public
interest factor weighs in favor of granting the injunction.
E.
Summary
Having found that all of the Winter factors weigh in
favor of granting the injunction, this Court CONCLUDES that both
Marisco and BOH are entitled to an order enjoining ASG and its
representatives from litigating any current or future proceedings
challenging this Court’s orders in this case, including ASG v.
BOH and ASG v. BOH 2.
In light of this Court’s ruling that BOH
and Marisco are entitled to an injunction pursuant to Rule 65,
this Court need not address the alternate requests for an
injunction, including an injunction pursuant to the equitable
principles codified in 28 U.S.C. § 2361 or an injunction pursuant
to the All Writs Act.
II.
Younger Abstention
ASG argues that, even if this Court is inclined to
issue the requested injunction, this Court should decline to do
so pursuant to the Younger abstention doctrine.
This district court has stated:
Younger abstention “forbids federal courts from
unduly interfering with pending state court
19
proceedings that implicate important state
interests.” Potrero Hills Landfill[, Inc. v.
Cnty. of Solano], 657 F.3d [876,] 881 [(9th Cir.
2011)] (quoting Middlesex Cnty. Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)
(quotation marks omitted)). A court is to abstain
under Younger in a civil proceeding when there is
a state proceeding that is (1) ongoing; (2)
implicates important state interests; and (3)
provides an adequate opportunity to raise federal
questions. Id. (citing Middlesex, 457 U.S. at
432). For Younger abstention, the Ninth Circuit
also requires that “the federal court action would
‘enjoin the proceeding, or have the practical
effect of doing so.’” Id. (quoting
AmerisourceBergen Corp. v. Roden, 495 F.3d 1143,
1148–49 (9th Cir. 2007) (quoting Gilbertson v.
Albright, 381 F.3d 965, 976–78 (9th Cir. 2004) (en
banc))). “[C]omity is the main reason for federal
court restraint in the face of ongoing state
judicial proceedings, and another is to avoid
unwarranted determinations of federal
constitutional law.” Gilbertson 381 F.3d at 975.
Bridge Aina Le`a, LLC v. Hawaii Land Use Com’n, Civil No.
11–00414 SOM–BMK, 2012 WL 1109046, at *8 (D. Hawai`i Mar. 30,
2012) (some alterations in Bridge Aina Le`a).
This Court does not take the interference with state
court actions lightly, and this Court acknowledges that issuing
the requested injunction will have the practical effect of
enjoining the proceedings in ASG v. BOH and ASG v. BOH 2.
The
proceedings in ASG v. BOH and ASG v. BOH 2 are ongoing and they
do implicate American Samoa’s interest in the applicability of
its laws.
This Court, however, finds that these factors do not
favor abstention because, as previously noted, ASG submitted
itself to the jurisdiction of this district court and has not
20
appealed from the judgment in this case.
ASG filed the two High
Court actions after this Court issued the judgment and Writ of
Execution in this case, and ASG filed ASG v. BOH 2 after this
Court issued the Disbursement Order and the Interpleader Order.
Further, this Court has considered the issue and ruled that
American Samoa law does not control as to whether Marisco
properly garnished the funds in ASG’s BOH account.
This Court
also notes that ASG v. BOH and ASG v. BOH 2, in which Marisco is
not a party, will not provide an adequate opportunity to address
the relevant federal issues; the proper venue to address those
issues is ASG’s pending Ninth Circuit appeals.
Thus, insofar as
the actions that ASG filed in the High Court are reactionary and
seek to undermine the authority of this Court’s orders, this
Court finds that the proceedings in those cases are not entitled
to deference under the Younger abstention doctrine.
This Court therefore CONCLUDES that Younger abstention
is not warranted in the instant case, and this Court GRANTS BOH’s
and Marisco’s request for an injunction against ASG.9
This Court
emphasizes that it has determined that Marisco is independently
entitled to an injunction against ASG, albeit for many of the
same reasons that BOH raised.
Thus, in the event that the Ninth
9
The Court emphasizes that it has granted the request for
the injunction based on the briefing associated with the instant
Motion. This Court’s ruling does not constitute reconsideration
of the Interpleader Order, in which this Court ruled that, based
on the record at the time, BOH was not entitled to an injunction.
21
Circuit affirms this Court’s Disbursement Order but reverses this
Court’s Interpleader Order, it would not dissolve the injunction
in favor of Marisco.
IV.
Reconsideration of the Interpleader Order
ASG argues that this Court erred in granting BOH’s
Motion for Interpleader.
At the hearing on the Motion, this
Court ruled that ASG’s memorandum in opposition to the Motion was
not the proper means to seek reconsideration of the Interpleader
Order.
Further, even if the Court construed the memorandum in
opposition as a motion for reconsideration of the Interpleader
Order, to the extent it is based on any alleged manifest error of
law, the motion is untimely.
Motions for reconsideration
asserting manifest error of law or fact “must be filed and served
not more than fourteen (14) days after the court’s written order
is filed.”
Local Rule LR60.1.
The Interpleader Order was filed
on October 5, 2012, and ASG filed its memorandum in opposition,
which contains the purported motion for reconsideration, on
October 24, 2012.
To the extent ASG alleged a lack of
jurisdiction to enter the Interpleader Order and the lack of
jurisdiction is never waived, this Court gave ASG leave to file a
motion for reconsideration on the jurisdictional issue only by
November 9, 2012.
reconsideration.
ASG, however, decided not to file a motion for
[Correspondence, filed 11/19/12 (dkt. no. 191)
(letter dated 11/7/12 from ASG’s counsel stating that ASG decided
22
not to file a motion for reconsideration on the jurisdictional
issue).]
This Court therefore will not address any of ASG’s
arguments seeking reconsideration of the Interpleader Order in
connection with the instant Motion.
CONCLUSION
On the basis of the foregoing, BOH’s Motion for
Injunctive Relief, filed October 18, 2012, and Marisco’s joinder
in BOH’s Motion are HEREBY GRANTED.
Specifically, this Court
HEREBY GRANTS an injunction in favor of Marisco and BOH and
ORDERS that ASG, and any of its representatives, including ASG’s
counsel and ASG’s officials in their official capacity, are
HEREBY ENJOINED from litigating any current proceedings
challenging this Court’s orders in this case with regard to the
Interpleader Funds or their equivalent.
v. BOH and ASG v. BOH 2.
This includes both ASG
ASG and its representative are also
HEREBY ENJOINED from bringing any future proceedings as to the
same subject matter.
The injunction shall remain in effect until
dissolved by this Court.
IT IS SO ORDERED.
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DATED AT HONOLULU, HAWAII, December 3, 2012.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MARISCO, LTD. V. AMERICAN SAMOA GOVERNMENT, ETC; CIVIL NO. 1000137 LEK-BMK; AMENDED ORDER GRANTING BANK OF HAWAII’S MOTION FOR
INJUNCTIVE RELIEF AND GRANTING MARISCO, LIMITED’S SUBSTANTIVE
JOINDER
24
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