Partial Dismissals Made Over CNMI Power Purchase Deal

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Superior court judge allows some motions, denies others

By Andrew O. De Guzman

SAIPAN, CNMI (Marianas Variety, Dec. 31, 2012) – Superior Court Judge David A. Wiseman issued an order on Friday partially granting and denying motions to dismiss and strike which were submitted by Governor Benigno R. Fitial, and Saipan Development LLC regarding the taxpayer lawsuit challenging the validity of the $190 million power purchase agreement.

Granted were motions to dismiss causes of action in the first amended complaint: Count 1: to stop illegal expenditure of illegal funds, and Count 3: breach of fiduciary duty filed against the governor.

Denied was the motion to dismiss Count 2: breach of fiduciary duty filed against the governor, former Attorney General Edward Buckingham, and the Commonwealth Utilities Corp.

Wiseman said the defendants failed to cite any authority in support of their arguments as to why the court may not issue a declaratory judgment in the case.

He also denied the defendants’ motion to dismiss Count 5 which asks the court for an injunction and to award damages "[b]ecause it is unnecessary to resolve the issue at this time."

Wiseman at the same time granted and denied the motions to strike certain paragraphs in the first amended complaint, submitted by attorney Ramon K. Quichocho, who represents the plaintiffs — Rep. Janet Maratita, Rep. Ray Yumul and the CNMI Senate.

Wiseman said the plaintiffs are given leave by the court to file an amended complaint pursuant to the Northern Mariana Islands Rules of Civil Procedure by Jan. 11, 2013.

Wiseman heard the oral arguments on Oct. 18, 2012 of Quichocho, and Assistant Attorney General David Lochabay, who represented the governor, and then-acting Attorney General Viola Alepuyo.

The defendants asked the court to strike material from the pleading, and to dismiss the lawsuit for failure to state a claim upon which relief can be granted.

The lawyers for the defendants argued that "when the factual allegations of the first amended complaint are separated from the legal conclusions… and when the alleged inappropriate material is stricken from the pleading, there are not enough factual allegations regarding the illegality of the agreements for the court to find a violation of the CNMI Constitution or breach of trust or fiduciary duty."

Saipan Development LLC, for its part, moved to dismiss on the grounds that plaintiffs’ complaint failed to state a cause of action on which relief can be granted and "because [the] plaintiffs’ claims involve a political question not justiciable by the court."

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