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Lawsuit against late DPS Lt. dismissed after 11 years

reporters@samoanews.com

The Trial Division of the high court has dismissed a lawsuit against late Police Lt Liusila Brown, the Department of Public Safety and the American Samoa Government. The 12 page ruling was issued last week, granting the government’s request to dismiss the lawsuit filed by Setefano Falaniko on October 16, 2000. 

The plaintiff was represented by Mark Ude. The plaintiff claims he sustained injuries as a result of allegedly tortuous conduct by the late Lt. Brown, back in April 2000. After eleven years since the lawsuit was filed, the government filed a motion to dismiss for lack of prosecution. The motion was heard before the high court on November 30, 2011. The ruling stated that the judges found no evidence that the plaintiff delayed process out of bad faith effort, to confound the defendant’s case, but the plaintiff willfully delayed prosecution.

“The plaintiff provides nothing that would otherwise indicate that his departure was involuntary, nothing suggested that the Defendants acted in any way to threaten the plaintiff or impede his efforts to seek redress”, the ruling states.

According to the ruling, the court found that there was no reason why the plaintiff’s counsel would not have moved forward with the case despite the plaintiff’s absence.  The ruling says, the plaintiff did not give any dates or time reference for when David Wagner (former U’una’I Legal Service lawyer who initially represented the defendant) passed on the case to the current lawyer.

 “It was evident the plaintiff had continuous representation throughout the entire 11-year period”, says the ruling.

The court also took into consideration the plaintiff’s file could be lost and forgotten, due to the case being passed between three lawyers. The ruling says, if that was the case, the plaintiffs could have made a claim against previous counsel, however the plaintiff also failed to do that.

The court found that the delays observed in this case, has attributed to the plaintiff’s willful conduct.  Unreasonable delay creates a presumption of prejudice to defendant’s case, the ruling states.

The ruling says, Detective Brown was both the defendant and key witness to this matter. “The matter arose as a direct consequence of his allegedly tortuous. “Unfortunately, his death was unexpected, nothing was done to preserve his testimony, all that exists are his statement in his police report concerning the incident and these statements could not in any way replace any evidence or testimony Detective Brown could have brought forth”. 

According to the ruling the plaintiff willingly remained inactive for close to nine years without providing any reasonable excuse and therefore, Associate Justice Lyle L Richmond and Associate Judge Mamea Sala Jr, granted the dismissal motion. The ruling states the judge adopted a five-factor test to guide their decision on dismissal motions:

·       The duration of plaintiff’s failures or a history of dilatoriness

·       Whether conduct of plaintiff was willful or on bad faith

·       Whether plaintiff had received notice that further delays would result in dismissal

·       Whether the defendant was likely to be prejudiced by further delay and

·       The efficiency of lesser sanctions.



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