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Marisco: Feds have personal jurisdiction over BoH & ASG

fili@samoanews.com

Marisco Ltd., contends the federal court in Honolulu “has personal jurisdiction” over the Bank of Hawai’i and the American Samoa Government, and therefore has the authority to garnish post judgement in the Marisco case against ASG, according to Marisco’s 54 page court filing yesterday.

U.S. District Court Leslie E. Kobayashi had ordered both sides to file supplemental briefings focusing on arguments on any controlling case law  regarding garnishment of an out-of-district bank account for a bank that is headquartered within Hawai’i.

The order came last month after ASG objected to the court’s issuance of a Writ of Execution to garnish more than $800,000 of the ASG account at the Bank of Hawai’i in the territory. Marisco sought the Writ after ASG failed to pay this amount both sides had agreed upon during federal arbitration last December, and approved this year by the federal court.

ASG filed last Friday its briefing, arguing the federal court lacks jurisdiction over this garnishment matter, and noting it is the court in American Samoa that has authority over this. (See Monday’s edition of Samoa News on ASG’s briefing.)

In its motion, Marisco attorneys said ASG essentially argues that the federal court’s order of garnishment served on a bank in one district is not effective on a branch located in a different district, since the branch is a “separate entity”.

In support of this argument, Marisco said ASG cites a federal circuit court case which was “subsequently criticized and distinguished” by judges in another court case in the U.S.

“While the separate entity rule may still have somelimited application to ‘prejudgement’  attachment, that is not the case here,” Marisco’s attorneys argued. “Moreover, even our U.S. Supreme Court has distinguished the effect of the ‘separate entity’ rule when a court has personal jurisdiction over the bank involved.”

CONCLUSION

“ASG waived its sovereign immunity and agreed to sue and be sued” at the federal court in Honolulu and ASG “also signed an Arbitration Agreement whereby it not only agreed to be bound to the jurisdiction” of the federal court “but also to allow enforcement of any arbitration award/judgement in either American Samoa, Hawai’i or any other necessary jurisdiction,” Marisco argued.

“No restrictions were placed on these promises,” said plaintiff. Moreover, the bank’s vice president and district manager for American Samoa testified last month in the High Court of American Samoa that “the American Samoa branch of BoH is not a separate entity and that the ASG account may be accessed from any Bank of Hawai’i branch either in Hawai’i, American Samoa or Guam.”

“Consequently, this court has personal jurisdiction over both BoH and ASG,” said Marisco.

Having waived sovereign immunity, having agreed to be bound under jurisdiction of the federal court of Hawai’i and having  agreed to the enforcement in American Samoa, the “ASG now interposes new and unfounded impediments to the previously agreed enforcement and jurisdiction,” according to the plaintiff.

“Marisco has provided considerable unpaid services and materials to ASG. After a vigorous arbitration, the arbitrator found in favor of Marisco. No appeal [by ASG] was taken from the judgement entered by this court,” said Marisco. “The money held by Bank of Hawai’i in an ASG ‘general fund’ [account] should be ordered to be paid to Marisco.”

The BoH filing on Tuesday at the federal court in Honolulu states that just over $824,000 of ASG money in the general fund account remains frozen at this time, while awaiting direction from the federal court on how to proceed with the garnishment order by the federal court because the High Court has ordered the bank to restore  all of the frozen money back into the ASG general fund account.



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