Star Marianas opposes Southern Airways’ motion for dismissal

Star Marianas Air, Inc. has filed its opposition to Marianas Southern Airway Express LLC’s motion asking the U.S. District Court for the NMI to dismiss the lawsuit Star Marianas filed over an $8-million contract between Marianas Southern Airways and the administration of former governor Ralph DLG Torres.

Last week, Star Marianas, through attorney Mark Scoggins, filed its opposition to Southern Airways’ motion to dismiss.

According to Scoggins, addressing Southern Airways’ argument of failure to name a necessary party to the action—the government of the CNMI—the CNMI is an indispensable party therefore the motion should be dismissed.

The opposing motion states that the argument is unsupported because Southern Airways limits its argument to the circumstances of the contract with the CNMI.

“It argues that the CNMI is an indispensable party because the court cannot accord complete relief in relation to a contract to which the CNMI is a party. Star Marianas can only respond that it has not sought relief in relation to any contract, and it does not seek to have any contract declared illegal or enjoined from enforcement. Southern Airways’ argument has nothing to do with anything happening in this lawsuit. All of the allegations in the complaint concerning the contract refers to activities that have already occurred in the past. Star Marianas has made no allegations that the performance under the contract is ongoing or that the performance is still required. The only request for injunctive relief Star Marianas has made has nothing to do with the past contracts and would only restrain the defendants. Nothing Star Marianas has requested of the court will have any impact on the CNMI’s past contractual relationship with any party to this case,” said Scoggins.

Last June, Star Marianas filed a lawsuit against Southern Airways Express LLC and Marianas Pacific Express LLC who were previously operating Marianas Southern Airways until the airline stopped operating last year.

In the lawsuit, there are two counts in filed against Southern Airways, one alleging an attempt to monopolize the airline industry market in the Northern Mariana Islands, in violation of Section 1 of the Sherman Act, and the other alleging that Southern Airways conspired with its co-defendants to unreasonably restrain trade in that market, in violation of Section 2 of the Sherman Act. 15 U.S.C. §§1-2.

Both claims were based upon a sole source contract entered into between the government of the Commonwealth of the Northern Mariana Islands and defendant Marianas Pacific Express LLC doing business as Marianas Southern Airways—a joint venture between defendant Southern Airways and defendant Keith Stewart—an interisland air passenger and cargo service in the Northern Mariana Islands.

Southern Airways, through attorney Sean E. Frink, now argues that dismissal is warranted because both claims against Southern Airways (and all counts and claims against all three private party defendants) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, as Star Marianas has failed to state any claim upon which relief should be granted.

In addition, Frink argues that the lawsuit should be dismissed because Star Marianas failed to join the Commonwealth of the Northern Mariana Islands, a necessary and indispensable party under Federal Rule of Civil Procedure 19, in the complaint.

“Plaintiff has failed to state a cause of action against Southern Airways (or either of the other two defendants) under the Sherman Act because Parker immunity prohibits any such claim. Moreover, because the CNMI is a necessary and indispensable party that Plaintiff has failed to join, the Complaint must be dismissed. As such, the Complaint should be dismissed, with prejudice, pursuant to Rules 12(b)(6) and 12(b)(7) of the Federal Rules of Civil Procedure,” said Frink.

U.S. District Court for the NMI Chief Judge Ramona V. Manglona is set to hear the matter on Nov. 21.

According to Saipan Tribune archives, Star Marianas, through attorneys Richard Richards and Mark Scoggins, filed a lawsuit against Marianas Southern Airways and its president with the U.S. District Court for the NMI.

Aside from them, Star Marianas also named Southern Airways Express LLC and Marianas Pacific Express LLC as defendants.

Star Marianas has filed six counts of violations of the Sherman Act against Marianas Southern Airways pursuant to an $8-million sole source contract between the airline and the CNMI government under the previous administration.

The Sherman Act aims to increase economic competitiveness by outlawing trusts, monopolies, and cartels.

As relief, Star Marianas is asking the District Court to restrain the defendants from establishing any similar agreements that unreasonably restrict competition and create a “conspiracy to monopolize the CNMI airline industry.”

Star Marianas also wants the court to award them damages in an amount to be determined at trial, and other relief the court may find just and proper.