Recent Supreme Court Decisions

2012

  1. Yandal Inv. Pty Ltd and Tahlia Family Trust v. White Rivers Gold LTd and Mason, SCT Civil 11-03 (01/25/12): Order Granting in Part and Denying in part Motion to Dismiss Appeal.  The Supreme Court concluded that, unless the High Court directs entry of judgment pursuant to MIRCP, Rule 54(b), the orders appealed from (with exception of the High Court’s May 19, 2011 “stay order”) are not “final decisions,” and the Supreme Court lack jurisdiction to entertain an appeal from those orders at this time.  The Supreme Court also concluded that the High Court’s May 19, 2011 “stay order” is immediately appealable as an exception to the “final judgment” rule under Moses H. Cone or , alternatively, is an appealable “collateral order” over which the court can assert jurisdiction.  Finally, the Court concluded it did not have pendent appellate jurisdiction over the interlocutory orders appealed from.

2015

  1. Niedenthal v CEO, SCT Civil 15-01 (01/08/15): Order Denying “Motion for Stay” pending appeal.  Appellant, CEO, has not demonstrated it will suffer irreparable harm. Additionally, the Court finds that any harm to Appellant does not outweigh the harm to Appellee, Niedenthal, that the public interest favors neither party, and that Appellant has not demonstrated a substantial likelihood or probability of success on the issues raised in its underlying appeal. Therefore, Appellant’s “motion for stay” is DENIED.
  2. CEO v. Simeon, et al., SCT Civil 11-01 (10/12/15): Opinion finding that the Marshall Islands Administrative Procedures Act (“APA”) does not apply to the Chief Electoral Officer’s new definition of the “date of election”; therefore the the High Court’s decision is AFFIRMED. Prior to the 2007 general election, the CEO had accepted postal ballots postmarked in the United States on the “date of the election” — a day after the election in the Marshall Islands, given that the United States is on the other side of the dateline. For the 2007 general election, the CEO rejected postal ballots postmarked in the United States on the “date of the election,” having re-defined “date of the election” for postal ballots as the day of election in the Marshall Islands. Appellants did not argue that the CEO’s interpretation was not reasonable, but instead they argued that in adopting the new interpretation, the CEO violated the APA’s requirements (notice-and-comment period, Cabinet approval, and publication of effective rules, all of which the CEO did not do), so their ballots should be counted. The Supreme Court, citing Bien v. MI Chief Electoral Officer, 1 MILR 94 (S. Ct. Civil 90-01), held that where the Elections and Referenda Act sets forth a specific and distinct procedure that the CEO must follow for the decision at issue, the CEO must follow the Elections and Referenda Act, not the APA. As appellants did not argue whether the CEO complied the requirements of the Election and Referenda Act, the Supreme Court rejected the appellants’ limited argument made on appeal that the CEO did not comply of the APA.
  3. In Re: the Citizenship of Sampang, SCT Civil 14-02 (10/27/15): Opinion affirming the High Court’s judgment that Sampang is qualified to register as a citizen of the Marshall Islands: Sampang met the three year residency required by the Constitution; the High Court did not err in refusing to give deference to the late-filed Certificate for/against Citizenship by the Minister of Justice; and Republic waived its argument that the “R-1” visa is required to commence the three-year residency period by not raising the issue at trial.
  4. Zedkaia and Toring v. Marshalls Energy Co., Inc., et al., SCT Civil 12-01 (11/18/15): Opinion affirming the High Court’s summary judgment that the Government, not the traditional owners of Lotola Weto, Utuwe Weto, and Lobotin Weto, Dalap Island, Majuro Atoll, Marshall Islands, owned the land reclaimed by the Government, upon which the Government erected structures include a fuel farm. The High Court held that (1) to the extent the disputed land was created by the Government on submerged areas below the high water mark, the Government owns that land, and (2) to the extent the disputed land was not below the high water mark when the Government entered the land, Plaintiffs’ claims are time-barred by the statute of limitations.

2017

  1. Chubb Ins. v Eleni, et al., SCT Civ 16-02 (06/06/17): Opinion on a Removed Questions, holding (i) that the High Court need not defer to the Hong Kong limitation suit and the limitation fund constituted under the “Convention on the Limitation of Liability for Maritime Claims, 1976,” and that defendants can avail themselves of the procedures provided by the Marshall Islands Limitation of Liability for Maritime Claims Act , Marshall Islands Revised Code Title 47, Sections 501, et seq., should they choose to limit liability in the High Court proceedings.
  2. Hitto and Emil v Toka and Caleb, SCT Civil 15-03, and Hitto and Emil v Bejang, et al., SCT Civil 15-04 (07/28/17): Opinion affirming High Court decisions.
  3. Samuel v Almen, SCT Civil 17-02 (09/20/17): Order Denying Writ of Mandamus.   The Supreme Court found that the evil to be avoided by requiring the disqualification of judges for previously having “played a role in the case” (Article VI, Section 1(6) of the Constitution and the Judiciary Act 1983, as amended, 27 MIRC, Chapter 2, Section 267) is to prevent conflicts of interest and bias which might influence impartial decision making. Petitioner has not made a “clear showing” of actual bias or conflict of interest by the trial judge. Likewise, the Supreme Court found that  the mere administration of an oath by a judicial officer to the declared winner of an election under protest, without more, does not give rise to any implication of bias or conflict of interest.
  4. Sammons v Economou and Dryships, Inc., SCT Civil 17-04 (11/15/17): Order Denying Petitioner for Writ of Mandamus. The Supreme Court found that the trial judge did not have a “non-discretionary” duty under the Constitution (see Cont. Art. II, Sec. 4(1) and Sec. 14(1)) or the MIRCP, Rule 1, to allow telephonic appearance, so as to support a writ of mandamus.

2018

  1. Samsung v Focus and Karamehmet (1), SCT Civil 18-02 (05/28/18): Order Denying Motion for Injunction Pending Appeal.  The Supreme Court, as a single judge subject to full panel review, denied Samsung’s request for an injunction to restrain defendant Karamehmet, pending appeal, from transferring any shares in Focus, from Focus transferring on record ownership of its shares, and from Focus transferring any of its assets, as Samsung had failed to show a reasonable probability of the court having in personam jurisdiction over Karamehmet.
  2. Samsung v Focus and Karamehmet (2), SCT Civil 18-02 (06/13/18): Order for Injunction Pending Appeal. The Supreme Court, as a single judge subject to full panel review, granted Samsung’s request for an injunction to restrain Focus, pending appeal, from transferring its assets, other than in the ordinary course of business, including shares of Genel Energy plc.  The Supreme Court found (i) that there was probable jurisdiction over Focus, (ii) that Samsung had made a showing of “irreparable harm”, (iii) that the issues raised are so substantial, difficult and doubtful as to make them fair grounds for litigation and thus for more deliberate investigation, and (iv) that the “balance of the hardships” favored Samsung.
  3. Samsung v Focus and Karamehmet (3), SCT Civil 18-02 (06/20/18): Order Vacating Preliminary Injunction.  The Supreme Court, siting as a full panel, vacated the single judge order granting Focus an injunction pending appeal.
  4. Asignacion v Rickmers Genoa Schiffahrgesellschaft MbH & Cie Kg, SCT Civil 16-03 (06/20/18): Decision on Appeal.  The Supreme Court affirmed the High Court decision that the case is barred by the statute of limitations.  “Asignacion admits that he failed to file suit within the two-year RMI statute of limitations.  His sole argument is that the statute is equitably tolled based on his prosecution of the suit in Louisiana. ‘Equitable tolling applies when the plaintiff is prevented from asserting a claim by wrongful conduct on the part of the defendant, or when extraordinary circumstances beyond the plaintiff’s control made it impossible to file a claim on time.’ Stoll v. Runyon, 165 F. 3d 1238, 1242 (9th Cir. 1999).”
  5. Chubb, et al., v Eleni Maritime Ltd and Empire Bulkers Ltd. (1),SCT Civil 18-05 (07/18/18): In its Order Denying Request to Vacate and/or Modify “Order Dismissing Interlocutory Appeal,” the Supreme Court held that the High Court’s partial summary judgment order is not a “final decision” from which an appeal lies as of right. That order is interlocutory. Marshall Islands precedent has held the Supreme Court is without power to entertain an interlocutory appeal absent certification by the High Court pursuant to MIRCP Rule 54(b ). Certification was not obtained. The Supreme Court was not convinced that the historic admiralty practice of allowing an appeal of a liability determination prior to a trial on the damages issue is part of the “general maritime law.” Appellant flatly asserts, without citation of authority, that 28 U.S.C. 1292(a)(3) is a codification of the general maritime law of the United States which this Court is to follow under 47 MIRC 113. Appellant argues 47 MIRC 113 makes no distinction between substantive and procedural “general maritime law.” But, the very definition of”general maritime law” suggests that distinction. The “general maritime law” is a term of art which denotes federal judge made maritime law. See, e.g., Coto v. J Ray McDermott, S.A., 709 So.2d 1023, 1028 (La. Ct. App. 1998) (“The General Maritime Law … of the United States is a branch of federal common law that furnishes the rule of decision in admiralty and maritime cases in the absence of preemptive legislation.”) (citing Thomas J.Schoenbaum, Admiralty & Maritime Law§ 5.1). Secondary sources indicate that the term “general maritime law” refers to “substantive” rules of maritime law. See Robert Force, Admiralty and Maritime Law,Federal Judicial Center, 2013, at pp. 22-23; William Tetley, Q.C., Glossary of Maritime Law Terms, 2nd Ed. 2004 (citing Tetley, “The General Maritime Law – The Lex Maritima” (1994) 20 Syracuse J. Int’l L. & Com. 105 -145 at pp. 121-128 and RMS Titanic, Inc. v. Haver, 171 F.3d 943, 960, 1999 AMC 1330, 1344 (4th Cir. 1999)).
  6. MYJAC Fdtn, Panama v Arce and Alfaro, SCT Civil 17-06 (07/30/18): In its Opinion, the Supreme Court affirmed the High Court’s order denying two Costa Rican defendants’ motion to set aside a default judgment. The Supreme Court held that the complaint’s explicit allegations of fraud against a Polish lawyer were sufficient to support a reasonable inference that the two Costa Rican defendants had also engaged in fraudulent or deceitful behavior affecting two RMI corporations, i.e., persons, thereby bringing them within the reach of the RMI’s long-arm jurisdiction statute, 27 MIRC 251(1)(n).  The Supreme Court also held that the Costa Rican defendants failed to show that they did not understand the language of the summons and complaint, both of which were written in English, and that neither the method of service nor the use of the English language in the summons and complaint violated Costa Rican laws.
  7. Mongaya v AET MCV BETA LLC, et al. (1), SCT Civil 17-03 (8/10/18): Opinion.  The Supreme Court affirmed the High Court’s Order Granting Defendants’ Motions to Stay Action Pending Arbitration. Prior to working on a vessel registered in the RMI, a Filipino sailor signed a Philippine Overseas Employment Administration Contract (POEA), which required the sailor, if injured, to participate in arbitration in the Philippines. The vessel owner and vessel operator were not signatories on the POEA contract. After the sailor was injured, the defendants sought to enforce the arbitration provision. At the time of the High Court decision, the RMI had acceded to but had not yet enacted the Convention of the Recognition and Enforcement of Foreign Arbitral Awards. The Supreme Court held that non-signatories can enforce a contractual arbitration provision under the doctrine of equitable estoppel: (1) if there is a close relationship between the parties involved; (2) if there is a relationship between the alleged wrong and the non-signatories’ obligations and duties; and (3) if the claims are intertwined with the underlying contractual obligations. The Supreme Court also upheld that the choice of law provision in the POEA contract.
  8. Mongaya v. AET MCV BETA LLC, et al. (2), SCT Civil 17-03 (09/05/18): Order Deny Motion for Reconsideration.
  9. Chubb, et al., v Eleni Maritime Ltd and Empire Bulkers Ltd. (2), SCT Civil 18-05 (September 5, 2018): Order Denying Request to Vacate and/or Modify “Order Dismissing Interlocutory Appeal.”
  10. Samsung v Focus and Karamehmet (4), SCT Civil 18-02 (09/06/18): In an Amended Opinion, the Supreme Court affirmed the High Court’s order dismissing Samsung’s action for enforcement of a foreign judgment.  The High Court dismissed the enforcement action as (i) it did not have personal jurisdiction over the debtor, Karamehmet, nor (ii) was his property, shares of stock in Focus, located in the Republic.  Mere ownership of shares in a Marshall Islands corporation does not constitute ownership of property in the Marshall Islands.  In this connection, the Supreme Court held the High Court did not err by incorporating Section 8-112 of the Uniform Commercial Code in the common law of the Republic.  Section 8-112, in relevant part, provides that the “interest of a debtor in a certificated security may be reached by a creditor only by actual seizure of the security certificate by the officer making the attachment or levy.”  That, the situs of certificated shares or stock is where the certificated shares are located.

2019

  1. Hitto v. Bejang, SCT Civil 17-05 (09/05/19): In its Opinion, the Supreme Court affirmed the High Court’s decision denying the Appellants’ request for an award of post-judgment interest on their portion of money distributed from a trust account.  Section 102 of the Enforcement of Judgments Act, 30 MIRC Ch. 1, provides “[a] judgment for the payment of money shall be a lien upon the personal property of the judgment debtor and shall bea interest at the rate of nine percent (9%) a year from the date it is filed.”  In this case, the money in question was held by a third party to be paid to the appropriate landowners.  The Appellants were determined to be the appropriate landowners and, hence, received moneys held in trust.  The Appellees were not required to pay any money to the Appellants.  Accordingly, the Appellees were not “judgment debtors,” nor was the money paid to the Appellants a “money judgment” for purposes of Section 102.  For these reasons, the Supreme Court affirmed the High Court’s decision.
  2. Highland Floating Rate Opportunities Fund, et al.v. Dryships Inc., et al., SCT Civil 18-10 (09/09/19):  In its Opinion, the Supreme Court affirmed the High Court’s decision dismissing the plaintiffs’ complaint for lack of standing to sue.  The High Court had dismissed the complaint on several grounds, including lack of standing.  The High Court had granted comity to and recognized a Cayman Islands insolvency order restructuring of Ocean Rig UDW, Inc., a subsidiary of defendant Dryships.  As part of the restructuring, the plaintiffs’ claims against UDW were extinguished.  As a consequence, the plaintiffs ceased to be a UDW creditors.  As creditors of UDW, the plaintiffs could have sued Dryships and others for fraudulent conveyances from UDW to them.  However, with the extinguishing of the plaintiffs’ creditor status, the plaintiffs lost their fraudulent conveyance claims against Dryships and others.  Accordingly, the plaintiffs lost their standing to sue Dryships and others.  Additionally, the High Court rejected the plaintiffs’ assertion that the Business Corporations Act, Section 128(5), preserved their creditor rights as UDW creditors indefinitely after UDW re-domiciled from the Marshall Islands to the Caymen Islands.  The High Court ruled that although the mere re-domiciling did not extinguish the plaintiffs’ creditor rights in UDW, corporate actions taken by UDW 18 months later under the Cayman Islands insolvency laws could, and did, extinguish their creditor rights as part of a restructuring.  The Supreme Court did not address the other grounds upon which the High Court dismissed the case, as it affirmed the High Court dismissal of the case for lack of standing.
  3. Ishiguro v. Imam Joyia & Ahamadiyya Muslim Jama’, SCT Civil 17-01 (09/10/19): In its Opinion, the Supreme Court affirmed the High Court’s decision granting summary judgment in favor of Imam Joyia and the Ahamadiyya Muslim Jama’. The main issue presented on appeal was whether the Marshallese custom of Drien Bujirok required Ishiguro’s consent, as senior dri jerbal, to a ground lease modification reducing the annual lease payment of $1,000.00 to the significantly lower amount of $1.00. The ground lease and amendment were signed by Ishiguro’s predecessor, Nena, as both alap and senior dri jerbal. Nena held the senior dri jerbal rights by virtue of a 1989 agreement between Nena and Ishiguro. The High Court found that Ishiguro failed to raise a genuine issue of material fact as his being the senior dri jerbal at the time the lease and amendment were signed and that the custom of Drien Bujirok applied. That is. he failed to raise a genuine issue of material fact as to the application of the Drien Bujirok custom to the facts of this case. There being no issue of fact in regards to custom, the High Court did not err (i) in holding the parties to the “clear and unambiguous” language of the 1989 “Agreement” and subsequent 2013 “ground lease modification,” (ii) in failing to refer this case to the Traditional Rights Court, or (iii) in dismissing Ishiguro’s claims.
  4. Samuel v Chief Electoral Officer, et al., SCT Civil 18-01 (09/26/19):  In its Opinion, the Supreme Court affirmed the High Court’s decision in HCT CA 2016-121 on other grounds. Appellant Samuel was a candidate in the November 2015 election for mayor of the Majuro Atoll Local Government (“MALGOV”). However, he received fewer votes than one of his opponents, appellee Laddie Jack. Samuel petitioned appellee Chief Electoral Officer (“CEO”) for a recount. Without ruling the recount petition, the CEO certified that Jack had won the race. Under the MALGOV Constitution, Section 8(1), the term of office of mayor commences on the day after the day on which his election or appointment is certified. After the certification, Jack assumed office as the mayor of MALGOV. Samuel sued the CEO for certifying the results before his recount petition was resolved. Samuel maintained that until his recount petition was resolved, he was the holdover mayor of Majuro. Samuel argued that allowing Jack to serve as mayor on a “premature certification” would be an absurd result and that the Court should interpret Section 8(1) to avoid such a result. Although the High Court Associate Justice found that the CEO’s certification was premature, he ruled that under a superior rule of statutory construction, i.e., the “preeminent” rule, where the law is unambiguous, the court should not interpret the law, but rather apply the law as written. And, since Section 8(1) was clear and unambiguous, he would not interpret it or rewrite it as Samuel requests. Accordingly, in denying Samuel’s motion for a summary judgment and granting the CEO’s motion to dismiss, he held that although the CEO had prematurely certified the election results, Jack became the mayor of Majuro the day after the certification. The Supreme Court rejected the High Court Associate Justice’s decision in HCT CA 2016-121. The Supreme Court found that the CEO’s certification of the election prior to resolving the recount petition was invalid. However, this conclusion did not end the matter. In February 2017, the CEO, on remand from the Chief Justice of the High Court, rejected in writing Samuel’s petition for a recount. In a subsequent High Court case, HCT CA 2017-037, Samuel challenged the CEO’s rejection. In that case, the Chief Justice found that the CEO had not erred in rejecting Samuel’s petitioner for recount. After this ruling the CEO did not re-certify Jack’s election. However, the Supreme Court “concluded that because Jack was unquestionably elected mayor, there is no basis whatsoever for removing Jack from that office and reinstating Samuel. As such, Samuel is left without any possible relief.” On these grounds, the Supreme Court affirmed the High Court’s decision in HCT CA 2016-121 on other grounds.
  5. Bien and MJCC v Milli Atoll Local Government, et al., SCT Civil 18-06 (10/09/19):  In its Opinion, the Supreme Court affirmed the High Court’s decision.  Defendants-Appellants Kejjo Bien (“Bien”) and Marshalls Japan Construction Co. (“MJCC”) (collectively, Defendants”) appealed the High Court’s denial of Defendants’ Republic of the Marshall Islands Rule of Civil Procedure 60(b) Motion for Relief from Judgment and an associated order denying a motion to strike the opposition to that Rule 60(b) Motion.  The Rule 60(b) Motion, however, was filed over a year after the underlying judgment awarding $40,000 to Plaintiffs and almost a year after an order amending that judgment to add an award of $120,000 in statutory punitive damages.  Defendants did not appeal either the underlying judgment or the order awarding punitive damages.  All the issues Defendants raised in the Rule 60(b) Motion could have been raised on a direct appeal.  Given this posture, the High Court properly denied the Rule 60(b) Motion under well-accepted waiver principles: (i) an appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review; (ii) in no circumstances may a party use a Rule 60(b) motion as a substitute for an appeal that it failed to timely file; (iii) failing to present an argument in opposition to summary judgment below, fails to preserve the argument for appeal; (iv) arguments raised for the first time on appeal are deemed waived; (v) if a party fails to raise an objection to an issue before judgment, he or she waives the right to challenge the issue on appeal (citations omitted). Further, the High Court did not abuse its discretion in denying the Rule 60(b) motion on the merits as to jurisdiction or in refusing to strike the opposition.
  6. Lekka v Kiluwe (as CEO), HCT CA 2019-046, and Konou and Lehman v Kiluwe (as CEO) and Kawakami (as AAG), HCT CA 2019-069, SCT Civil 2019-002(10/09/19):  In its Opinion on Removed Question from the High Court, the Supreme Court found that P.L 2016-28, which denied the right of Marshallese residing outside of the Marshall Islands the right to vote in national and local elections, was unconstitutional.  Chief Justice Daniel Cadra, with whom Associate Justice Seeborg concurred and Associate Justice Seabright concurred by a separate option, concluded that a qualified Marshallese voter residing outside the Marshall Islands has the constitutional right to vote in the Marshall Islands national or local elections but does not have the right to vote by postal ballot or by some other specific method unless authorized by Act or regulation. Because P.L. 2016-028 eliminates all practical means for plaintiffs and others similarly situated to exercise their constitutionally protected right to vote without providing some reasonable alternative method of exercising that right, P.L. 2016-028 presents an unreasonable burden on plaintiffs’ right to vote and is unconstitutional.  However, the Supreme Court also found that the timing of the filing of plaintiffs’ claims in close proximity to the upcoming November 2019 elections presents an unreasonable burden on the government in attempting to comply with this decision by either making postal ballots available on short notice or by providing some alternative method of voting to that class of qualified non-resident Marshallese voters such as plaintiffs.  Accordingly, the Supreme Court made its decision prospective in application only after the November 2019 elections, and it returned the case to the High Court for such further proceedings which may be necessary to resolve this case.
  7. Iroij Kabua, et al. v M/V Mell Springwood, et al., SCT No. 2016-001, SCT Civil 2016-001(10/22/19):  In its Opinion the Supreme Court affirmed the High Court’s decision.  The plaintiffs (“Kabua Plaintiffs”) filed this action in rem against the vessel, the M/V Mell Springwood (“Vessel”), and in personam against the Vessel’s owner, Tammo Shipping Company Limited, and others (“Defendants”) claiming damages resulting from the Vessel running around off shore in Kwajalein Lagoon. The High Court dismissed the in personam claim with prejudice and the in rem claim without prejudice.  As to the former, the High Court found the Kabua Plaintiffs lacked standing to pursue their claims for two reasons: (1) the purported delegation of authority from the Environmental Protection Authority (“EPA”) to the Kabua Plaintiffs was not proper because the EPA Act does not provide the EPA with authority to bring a lawsuit for civil damages; and (2) the Kabua Plaintiffs have not shown that they have a legal interest in the reef that was damaged by the Vessel’s grounding.  Additionally, the High Court found the Kabua Plaintiffs failed to state a claim for two reasons: (1) failure to assert a property interest in the damaged reef; and (2) failure to allege a valid delegation by the EPA to pursue a derivative action on its behalf.  As to the in rem claim, the High Court found the Vessel had not been arrested within the RMI’s territorial waters, and so there was no in rem jurisdiction.
  8. Konou and Lehman v Kiluwe (as CEO) and Kawakami (as AAG), HCT CA 2019-069, SCT Civil 2019-002(10/29/19):  In its Order the Supreme Court denied plaintiff’s Konou and Lehman’s “Emergency Motion for Rehearing / Reconsideration.”  In their motion, plaintiffs request this Court to remove its decision of “prospective application of the finding of unconstitutionality of P. L. 20 16-028.”  Plaintiffs also seek an order directing the High Court, “on an urgent basis, to compel testimony of the Chief Electoral Officer on the Electoral Administration sprinting and ballot mailing capabilities,” as well as directing the High Court to make certain specific orders which include the ” printing and mailing of ballots to realistically enable return by November 25, 2019″; “acceptance of fill registered voters’ postal ballot applications”; and requiring “acceptance of all registered voters’ postal ballot applications; and if necessary, delay of the election to provide full participation by all eligible voters.”  The Supreme Court reconsidered its opinion granting prospective application of our decision finding P.L. 2018-028 unconstitutional and denied plaintiffs’ requested relief. The Supreme Court found that the issue is not, as intimated by plaintiffs, whether there is sufficient time to print postal ballots.  The issue is whether there is sufficient time for the government to choose among various alternatives available to it to bring the law into compliance with our decision.  Further, it is not the role of the Courts to tell or dictate to the legislature what choice it must make in that regard.  An attempt to do so would raise separation of powers and rule of law issues.  The Court held that “given the proximity of the election, it is simply unrealistic to expect the government to engage the legislative machinery and processes necessary to implement its choice as to how to comply with our decision.”
  9. Samuel v Almen (as CEO), MOIA, RMI, and Jack, SCT Civil 2018-001(10/29/19):  In its Order, the Supreme Court denied appellant’s “Motion for Enlargement of Time for Filing Motion for Reconsideration.”  Under Rule 40 of the Supreme Court Rules of Procedure, a motion for reconsideration must be filed within 10 days of the Court’s ruling.  Admittedly, the appellant’s motion for reconsideration was untimely.  Moreover, the appellant failed to establish “good cause” to suspend the Supreme Court Rules of Procedures under Rule 2.  The Court concluded that issues presented by appellant had no baring on the issues raised in case, and, hence, did not provide a basis for reconsideration.
  10. Kabua v Malolo, SCT Civil 2018-008 (03/15/20):  In its “Order Granting ‘Request for Enlargement of Time to File Opening Brief,'”  the Supreme Court first concluded that counsel’s busy schedule does not constitute “excusable neglect” for purposes of granting a request for the enlargement of time to file an opening brief.  See, e.g., Hawks v. JP. Morgan Chase Bank, 591 F.3d 1043, 1048 (2010) (two trials and Social Security hearing do not constitute excusable neglect); McLaughlin v. City of LaGrange, 662 F.2d 1385, 1387 (11th Cir. 1981) cert. denied 456 U.S. 979 (solo practitioner engaged in the preparation of other cases does not establish excusable neglect.)  Instead, the Court held that the factors for determining whether “excusable neglect” and therefore “good cause” exist for granting enlargement of time are the following: (i) the danger of prejudice to the non-moving party; (ii) the length of delay and impact on proceedings; (iii) the reasons for the delay, including whether it was in the reasonable control of the moving party; and (iv) whether the moving party acting in good faith.  See Pioneer Inv. Services Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380,395 (1993).  In the present case, the Court granted the motion for enlargement, finding “good cause” existed under the circumstances.  First, the non-moving party did not object or claim prejudice. Second, the length of the delay was short and did not impact the proceedings.  Third, the reasons for the delay were under the control of the moving party.  However, fourth, there was no evidence of the moving party had not acting in good faith or sought a tactical advantage.

2020

  1. Molik and Hisiah v Tibon and Eskaia DeBrum, SCT 20-566 (07/07/20): In its Opinion Dismissing Appeal for Lack of Jurisdiction, the Chief Justice of the Supreme Court, acting as a single judge addressing a procedural issue, dismissed the appeal for lack of jurisdiction. The Appellants did not file their notice of appeal within 30 days of the date of the entry of the judgment or order appealed from as required by Supreme Court Rule 4(a)(1(A). Nor did not the Appellants seek from the High Court an extension of time to file a notice of appeal within 30 days of the expiration of the due date as required by Supreme Court Rule 4(a)(5). In dismissing the untimely notice of appeal, the Court held that “timely filing of a Notice of Appeal is ‘mandatory and jurisdictional.'”
  2. Republic v. Antolok, SCT 18-11 (11/18/20):  At trial, Antolok was convicted of sexual assault in the second degree.  On appeal, he had challenged the sufficiency of the evidence that led to his conviction.  The Supreme Court concluded that “[u]nder well settled precedent, a conviction is supported by the sufficiency of the evidence when after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  In this setting, the Court may not ask whether a finder of fact could have construed the evidence produced at trial to support acquittal; rather, our appellate inquiry must proceed strictly upon evidence construed in a manner favoring the prosecution.  Only after we have construed all the evidence at trial in favor of the prosecution do we take the second step, and determine whether the evidence at trial, including any evidence of innocence, could allow any rational trier of fact to find the essential elements of the crime beyond a  reasonable doubt.” (internal quotations, cites, and emphasis omitted), Slip Op. at 4.  Under the above legal standard, and the record before the Supreme Court, the court in its Opinion, reversed Antolok Antolok’s conviction for sexual assault in the second degree because the Republic failed to introduce evidence sufficient to show “sexual penetration.”  Further the Supreme Court directed the High Court to enter a judgment against Antolok for the lesser-included offense sexual assault in the third degree and to re-sentence Antolok accordingly.

2021

  1. Republic v. A.P., SCT 18-03 (01/06/21): At trial, A.P., a juvenile, was convicted of murdering Robert Marquez, sexually assaulting his three-year-old daughter, and the burglary of the Marquez family store. The defense sought to suppress A.P.’s confession and to challenge the sufficiency of the evidence. With respect to the suppression motion, the Supreme Court adopted the United States standard of review: the trial court’s “finding that waiver of Miranda rights was knowing and intelligent is reviewed for clear error, and a finding that the waiver was voluntary is reviewed de novo.” Slip Op. at 8 (citations omitted). With respect to the sufficiency of evidence, the Supreme Court followed the United Standard of review it adopted in Republic v. Antolok, SCT 18-11 (11/18/20), Slip Op. at 4.  Under the above standards, the Supreme Court found that, although a juvenile, A.P. knowingly and intelligently waived his Miranda Rights and his subsequent confession was voluntary.  Further, the Court found that the evidence was sufficient to support the conviction for murder and for burglary. However, because the evidence showed that the three-year-old’s body was sexually assault after her death, the evidence did not support conviction for sexually assault a person.  Instead, the evidence would have supported a conviction for necrophilia.  Accordingly, the Supreme Court affirmed the conviction for murder and burglar, reversed the conviction for sexual assault, and remanded the case to the High Court for sentencing consistent with the Supreme Court’s decision, not to exceed 35 years’ imprisonment.
  2. Akhmedova v. Straight Establishment, et al. (1), SCT 19-03 (01/20/21): The Chief Justice of the Supreme Court entered a single-judge procedural order granting respondent-appellant’s motion to stay enforcement of judgment pending appeal conditioned upon the posting of a bond.
  3. Edmund, et al., v MIMRA, et al. (1), SCT 2021-00406 (05/17/21): The Chief Justice of the Supreme Court, in a single-judge procedural order, denied plaintiffs-appellee’s motion to dismiss defendant-appellant MIMRA’s appeal for repeated violations of the Supreme Court Rules of Procedure (“SCRP”).  Twice defendant-appellant MIMRA failed timely to file certificates of service and to serve filed documents on plaintiffs-appellees.  Although the Supreme Court denied plaintiffs-appellees’ motion to dismiss MIMRA’s appeal, the Supreme Court did award plaintiffs-appellees monetary sanctions against defendant-appellant MIMRA’s for its failure to comply with the SCRP.
  4. Dieron v Star Trident XII, LLC, and Star Bulk Shipmanagement Company (Cyprus) Limited, SCT 2018-015 (06/04/21): The Supreme Court affirmed the High Court’s decision (i) allowing defendant-appellee Star Bulk Shipmanagement Company (Cyprus) Limited (“SBSC”) to intervene as a defendant and (ii) concluding that plaintiff-appellant Virgilio T. Dieron, Jr. (“Dieron”) must arbitrate his claims against defendants-appellees Star Trident XII, LLC (“Trident”) and SBSC. This appeal involves a maritime personal injury action brought by a seafarer, Dieron against Trident, the owner of the MN Star Markella (“Vessel”) registered in the Republic of the Marshall Islands (“RMI”). While working aboard the Vessel, Dieron suffered catastrophic physical injuries. Dieron, a citizen of the Republic of the Philippines, was employed pursuant to a standard Philippine Overseas Employment Administration (“POEA”) contract with Intervening Defendant SBSC, an affiliate company of Trident and manager of the Vessel. The POEA contract contained an arbitration clause, a Philippine choice of law clause, and an elaborate no-fault compensation scheme for personal injury. Dieron executed this employment contract with SBSC only; Trident was not a signatory to the contract. Following the accident, Dieron filed suit in the High Court against only Trident, bringing claims for negligence, unseaworthiness, and failure to pay maintenance and cure. The High Court granted signatory SBSC’s motion to intervene and subsequently granted both non-signatory Trident’s and signatory SBSC’s motions to compel arbitration under Philippine law in accordance with the terms of Dieron’s employment contract with SBSC. In granting SBSC’s motion to intervene under Section 24(a) of the MIRCP, the High Court, following the four-part test for intervention of right under the Section 24(a) of the FRCP, upon which Section 24(a) of the MIRCP is patterned on the United States Ninth Circuit Court of Appeals in Southwest Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 817-18 (9th Cir. 2001). That is, the High Court concluded (1) that SBSC’s application to intervene was timely, (2) that SBSC had a “significantly protectable” interest, (3) that SBSC was so situated that the disposition of the matter may as a practical matter impede SBSC’s ability to protest its interest, and (4) that SBSC’s interest, as a signatory to the POEA contract, had an interest that could not be represented by the existing parties, including its affiliate defendant Trident. In concluding that POEA contract applied to Trident as well as SBSC, the High Court followed the Supreme Court’s ruling in Mongaya v. AET MCV BETA LLC, S. Ct. No. 2017-003 (Aug. 10, 2018), reconsideration denied (Sept. 5, 2018). In Mongaya, the Supreme Court held that under the doctrine of a POEA contract’s arbitration clause even for claims brought by an injured seafarer against a non-signatory to the contract under an equitable estoppel theory.
  5. Edmund, et al., v MIMRA, et al. (2), SCT 2021-00406 (07/22/21): The Chief Justice of the Supreme Court, in a single-judge procedural order, granted defendant-appellant MIMRA’s Motion for Enlargement of Time [for three days] in which to file its reply brief.  Defendant-appellant MIMRA’s argued (i) that off-island counsel, who had been assisting local counsel, was ill and needed more time to complete the reply brief and (ii) that plaintiffs-appellees had raised issues in their Answering Brief that required further research to address.   In their opposition, plaintiffs-appellees argued that this was MIMRA’s third request for an extension of time to comply with appellate rules of procedure, that off-island counsel was not identified, that off-island counsel’s illness was not identified or proven, and that defendant-appellant MIMRA had two local attorneys who could do the work.  However, the Court held as follows: “Despite the vague and conclusory allegations in Appellant’s moving papers, the undersigned FINDS ‘good cause’ exists for the granting of a three (3) day enlargement of time for Appellant to file its Reply Brief due to (i) the interest of the Court being fully advised in the premises of this appeal and (ii) so as to allow Appellant the opportunity to reply to Appellee’s request for dismissal for violation of the Rules. The undersigned FURTHER FINDS (iii) Appellee is not prejudiced by this brief extension of time. Any arguments raised in Reply can be addressed at oral argument.” Slip Op. at 6.
  6. Edmund, et al., v MIMRA, et al. (3), SCT 2021-00406 (08/09/21): The Chief Justice of the Supreme Court, in a single-judge procedural order, granted plaintiffs-appellees’ unopposed motion to dismiss the appeal for defendant-appellant MIMRA’s repeated violations of the Supreme Court Rules of Procedure (“SCRP”).  The violations numbered three and included MIMRA’s two previous failures to serve documents and certificates of service and MIMRA’s more recent filing of an 11-page reply brief, exceeding the 10-page limit impose by SCRP, Rule 28.  The Supreme Court did not, however, grant the motion to dismiss merely because MIMRA failed to seek leave to exceed the 10-page limit for a reply and failed to oppose the plaintiffs-appellees’ motion to dismiss, but due to MIMRA’s series of failures to comply with the SCRP, despite monetary sanctions and extensions of time.  As the Court noted: “[w]hile the Supreme Court will interpret its appellate rules, when possible, to further resolution of appeals on the merits, litigants should not view relaxation of rules in a particular case as endorsing noncompliance, and litigants who ignore the rules do so at the risk of forfeiting appellate review.”  Slip Op. at  6, citations omitted.  Further, as the Supreme Court held “[s]anctions short of dismissal are likely inadequate to secure [MIMRA]’s future compliance with the Rules and are inadequate to send the message to the bar and other litigants that the Rules of Procedure are, indeed, mandatory, not ‘voluntary’ and that there are consequences for repeated violations of those Rules.”  Slip Op. at 9.
  7. Akhmedova v. Straight Establishment, et al. (2), SCT 19-03 and 21-768 (Consolidated) (08/20/21): As the parties had filed before the High Court a stipulation for voluntary dismissal of High Court Civil Action Nos. 2018-168 and 2018-169 with prejudice and had further stipulated for the dismissal of Supreme Court Case Nos. 2019-003 and 2021-768 as “moot,” the Chief Justice of the Supreme Court entered a single-judge procedural order dismissing the above referenced appeals to the Supreme Court with prejudice pursuant to SCRP Rule 42(b)(l).
  8. Edmund, et al., v MIMRA, et al. (4), SCT 21-40 (08/27/21): Upon full panel consideration of Appellant’s August 18, 2021 “Motion to Vacate Order Dismissing Appeal,” the Supreme Court vacated the August 9, 2021 single-Justice Order dismissing this appeal and reinstate the appeal conditioned upon Appellant’s payment of a sanction of $1,000 to Appellee’s counsel. While the Court found a troubling pattern of repeated rμle violations, the justices concluded that dismissal of the appeal was not warranted. Appellee had not been prejudiced by Appellant’s disregard of the rules, and the Court’s institutional interest in ensuring compliance with Supreme Court Rules of Procedure could be accomplished by imposition of a monetary sanction.
  9. Republic of the Marshall Islands v. Barmoj Naisher, SCT 20-1608 (11/30/21): The Supreme Court affirmed the High Court’s conviction of the defendant-appellant for first-degree sexual assault and second-degree kidnapping.
  10. Kabua v. Malolo, SCT 18-08 (12/10/21): The Supreme Court affirmed the decision of the High Court adopting the Traditional Rights Court’s opinion. The TRC found the applicable custom is that, in the absence of an agreement otherwise, the alab title to morjinkot lands descends through the male bloodline (bototak) until the birth of a female which then establishes a bwij. Upon establishment of a bwij, marjinkot lands become bwij lands. As bwij lands, the succession of the alab title changes from that of through the botoktok (paternal bloodline) to that of through the bwij (matrilineally). Applying the custom to the facts of this case, the Traditional Rights Court found two bwijs were established by the births of two females in the same generation who descended from Lokomoram, the parties’ common ancestor and original recipient of the wetos awarded as marjinkot. The older bwij being that of Libonlok and her children and the younger bwij being that of Litawe and her children. “Custom changes custom” and as bwij land “the children of the females will become alabs and the children of the males will become dri jerbals.” Because Appellee Mwejen Malolo is a “child of the female” and is in the same generation as the last recognized alab, Laji Taft, the Traditional Rights Court concluded that Mwejen Malolo is the proper person to presently hold the alab title to the wetos at issue. The Traditional Rights Court opined that Cecilie Kabua is entitled to inherit the dri jerbal title as she is a child of the male.

2022

  1. Latdrik v Laik, SCT 18-13 (06/06/22): The Supreme Court affirmed the High Court’s and the Traditional Rights’s decisions finding that Batle Latrik is the alap over Mwejelok Weto, Delap Island, Marjuro Atoll, Marshall Islands and that there is no iroijedrik for Mwejelok.
  2. Lorak, Lorak, and Kauba v Philippo, Mea, and March, SCT 19-04 (07/07/22): The Supreme Court affirmed the High Court’s and the Traditional Rights’s decisions finding that the Ain Kabua is the alap and Bojeang Lorak is the senior dri jerbal over To Weto, Ajeltake Island, Marjuro Atoll, Marshall Islands.
  3. Zedhkeia v Leit and Kedi, SCT 19-01 (09/16/22): The Supreme Court affirmed the High Court’s and the Traditional Rights'”finding that Leit is the proper alap and senior dri jerbal[of Monloklap Weto, Ajeltake Island, Majuro Atoll], and because there is no challenge to the authority of the iroij who signed the ground lease of a portion of Monloklap weto with Kedi, we also AFFIRM the High Court’s conclusion that the lease with Kedi is signed by the appropriate parties as required by the Constitution and is therefore valid.”

2023

  1. Kramers v Bings, SCT 21-1786 (01/17/23): The Supreme Court affirmed the High Court’s decision granting the Kramers’ motion for summary judgment, concluding that “there are no genuine issues of material fact and that the Kramers are entitled to judgment as a matter of law.” The Kramers purchased the Alap, Senior Dri Jerbal, and Dri Jerbal rights to the entirety of Bukien Weto, Ajeltake Islands, Majuro Atoll. They recored their deeds in 2009 under the Real and Property Act, 24 MIRC Ch. 1 (repealed in 2003) and again recorded their deeds again in 2003, this time under the Land Recording and Registration Act 2003, 24 MIRC Ch. 4 (“LRA”). In 2020 the Bings filed a 1999 deed they had obtained for a portion Bukien Weto. However, the Supreme Court concluded that “[i]t is abundantly clear that the Kramers’ deeds have priority over the “Bing deed” under the Real and Personal Property Act because they were (i) purchasers (ii) for valuable consideration who (iii) recorded first (iv) without notice of the Bing’s unrecorded oral agreement regarding Bukein weto.” The Bings’ 2020 LRA recording of their 1999 deed does not overcome the Kramers’ claim.
  2. Samuels v Langrines, SCT 20-00960 (02/15/23): Despite having obtained a stipulated order allowing an extension of time in which to file its opening brief, Appellants filed their opening brief six days late. Appellants’ brief was not accompanied by a motion allowing late filing and was not preceded by a (second) motion for enlargement of time.  Appellee therefore sought dismissal of the appeal for Appellants’ failure to comply with Supreme Court Rule of Procedure (SCRP) Rule 26 (b)’s requirement of demonstration of “good cause” excusing the late filing of a brief.  Appellants offered no excuse for the late filing, the Supreme Court therefore GRANTED the Appellee’s request for dismissal of the appeal for the failure to timely file the opening brief and other reasons.
  3. Edmund, et al. v MIMRA, et al., SCT 21-00406 (02/17/23): A nighttime maritime collision between a boat owned by Defendant Marshall Islands Marine Resources Authority (“MIMRA”) and a boat owned by Defendant Wotje Atoll Local Government (“WALGOV”) resulted in the death of a passenger, Diavon Edmond. Edmond’s surviving personal representatives brought a wrongful death action before the High Court, arguing that Edmond’s death was caused by the negligence of the boats’ pilots and owners. The High Court agreed, finding both MJMRA and WALGOV liable for damages, over the Defendants’ objection that they were exempt from liability due to the Government Liability Act of 1980 (“GLA”), 3 MIRC Chp. 10. On appeal, MIMRA challenges two key determinations underlying the High Court’s decision: (1) MJMRA is not part of the “Government” as defined in the GLA and therefore not entitled to the liability limitations contained therein, and (2) the GLA’s li ability limitation is an affirmative defense that MTMRA waived. Because the Supreme Court agreed that the GLA ‘s liability limitation is an aflirmative defense that was waived , it held that it need not reach the statutory interpretation question and did not opine on whether MIMRA was entitled to the GLA’s liability protections. Accordingly, the Supreme Court affirmed the High Court’s decision.
  4. Secretary of Finance v Iosia v deBrum, SCT 22-00814 (03/22/23): The Supreme Court dismissed this appeal because Appellant’s, deBrum’s, opening brief failed to substantially comply with SCRP, Rule 28. Appellant’s opening brief failed to clearly present the Supreme Court with the questions and points intended to be raised in this appeal; did not advise the court of the applicable standard of review; did not provide the court with a coherent argument as to why the lower courts erred; and provided the court with no authority supporting its contentions. Therefore, the Supreme Court dismissed the appeal for Appellant’s failure to comply with the appellate rules.
  5. Social Security Administeration v Jorbon, dba Philippo and Jorbon, LLC, SCT 2022-02240 (05/04/23): The Supreme Court, acting as a single justice, dismissed this appeal because Appellant, Jorbon, failed to comply with the SPRC. The Appellant filed his opening brief late, failed to request an extention of time to file late, filed to show “good cause” for filing late, and filed to respond to Appellee’s motion to dismiss.