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Fed court hearing “inclined to deny” BoH motion

fili@samoanews.com

The federal court in Honolulu has set for Oct. 26 a hearing on the Bank of Hawai’i’s motion for injunctive relief, which seeks among other things, to prevent the American Samoa Government and its attorneys from seeking claims against the more than $800,000 that is to be deposited at the federal court registry.

The hearing will be presided over by U.S. District Court Judge Leslie E. Kobayashi, who has given ASG until Oct. 24 to file any opposition motion.

In affirming the hearing date, the court also filed yesterday information for the record, which states that the court “hereby informs the parties that it is inclined to DENY” the BoH motion.

Based on the limited record before the federal court regarding the proceedings in the ASG v. Bank of Hawai’i case in the High Court of American Samoa, “it does not appear that ASG v. BoH contests the underlying judgement in this federal case in favor” of Marisco Limited and against defendant ASG, court records states.

(The federal case in Honolulu is the result of a federal lawsuit by Marisco against ASG and Marisco is not a party in the High Court case.)

“The crux of ASG v. BoH appears to be that BoH violated American Samoa law by garnishing ASG’s account in response to the Writ of Execution” filed by Marisco at the federal court, who then issued an order directing the disbursement of funds frozen at the ASG account by BoH to pay for the outstanding Marisco debt, according to court document.

It also says the federal court order served on the BoH in Honolulu was sufficient to garnish ASG’s funds in the account ASG opened at the BoH branch in American Samoa.

“This court, however, made that ruling pursuant to the applicable federal and Hawai’i state law,” it says and noted that neither the disbursement order nor any other order of the federal court “purported to rule on the issue whether the service and garnishment was proper under American Samoa law.”

“This court is therefore inclined to find that it does not have the authority to enjoin ASG from proceeding in ASG v. BoH,” it says. “Even if this court has the authority to do so, the court is inclined to fine, ‘inter alia’, that BoH has not established that it is likely to succeed in the merits of ASG v. BoH and that issuing the injunction is not in the public interest.”

The court “directs” any party filing an opposition to the BoH motion for injunctive relief to address issues and/or to direct the court to controlling case law that either supports or contradicts these matters.

Insofar, the federal court says it is not allowing BoH to file a reply in support of its motion but BoH may address these issues during the Oct. 26 hearing.

“The court emphasizes that these inclinations are intended only to help the parties prepare their respective memoranda and/or oral argument that are not the court’s final decision in this matter,” said court documents. “Rather, the parties are encouraged to raise relevant case law and/or facts to show the court why its inclinations are mistaken or correct.”



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