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Post judgement collection called “tortuous path” by Marisco, rejects further mediation

fili@samoanews.com

Following long delays by the American Samoa Government to pay an outstanding debt of more than $800,000, Marisco is no longer in any mood to negotiate the final court judgement in the case, now before a federal court appeal’s panel.

The Honolulu-based shipyard Marisco made the revelation in answers provided to a mediation questionnaire from the Mediation Office of the U.S. Ninth Circuit of Appeals in San Francisco where ASG appealed two orders of the Honolulu federal court in the legal battle between ASG and Bank of Hawai’i.

ASG is appealing the lower court’s order to garnish $811,000 held by BoH in the ASG account as well as the court’s order to deposit the garnished funds into the federal registry of the court.

The garnish amount was the Honolulu federal court judgement against ASG for failure to pay services provided by Marisco, who sought a garnishment order, arguing that ASG has a history of not paying its debts.

Mediation questionnaire would allow the appeal court as well as the two parties to state whether such a matter should be resolved through federal mediation.

According to ASG’s answers in the questionnaire, it is appealing the lower court’s orders because they “violate American Samoa’s sovereign immunity and its laws barring garnishment of its funds” and because the orders were “based on the erroneous conclusion that Hawai’i courts would not employ the separate entity rule to find that its situs of ASG funds to be American Samoa and not Hawai’i.”

ASG had argued in documents filed with the lower court late last year, that it’s the High Court of American Samoa, and not the federal court, that has jurisdiction over the ASG bank account, which was opened at the BoH in Utulei.

In its questionnaire, ASG said it “believes mediation would not be productive because ASG seeks reversals” on the lower court’s orders “to avoid their potential effect, to correct the various errors capable of repetition and to permit ASG and its courts to enforce American Samoa laws within its borders.”

For Marisco, the company informed the mediation office that Marisco and ASG had agreed to a binding Arbitration agreement, mediated by a federal arbitrator, who rendered a decision in favor of Marisco for the total amount of $811,631 - plus costs and interest.

“This post judgement collection effort has had a tortuous path,” said Marisco’s attorneys. “At one point, Marisco agreed to accept a reduced amount of $720,000 if it received assurances of payment. ASG tentatively agreed but then refused. ASG claims it cannot settle without approval of its Fono.”

Marisco also states that it is understood that an appropriation bill to pay the judgement is going thru the legislature but is unaware of the current status. (ASG included in the FY 2013 budget $1 million set aside to pay Marisco but this allocation and others were cut by the Fono before the final budget was approved.)

“Marisco has no objection to mediation; however, given the ASG track record and responses, it is unlikely that ASG has anyone in authority to settle without Fono approval,” the company said. “Due to the delays of ASG, Marisco is not willing to now compromise on the judgement.”

Federal appeals court records do not show any responses from BoH and it also does not state as to when all parties in this case are to file their appellate briefs.

Meanwhile, ASG’s two separate lawsuits against BoH remain pending in the High Court of American Samoa following an order by the Honolulu federal court barring ASG and its representatives from any further proceedings on this matter until the federal appellate court issues a ruling.

BoH on the other hand is set to close down local operations by Mar. 15 and Gov. Lolo M. Moliga told lawmakers on Monday that he will “petition” to delay its departure from American Samoa.

“A marriage of 43 years must not end so suddenly without consideration of the needs of either party,” said Lolo.



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