JG Sablan’s request a ‘waste of time

The Superior Court has denied JG Sablan Rock Quarry Inc.’s motion to remove portions of the arguments filed by the Department of Public Lands in connection with their dispute over the permit to mine pozzolan.

Associate Judge David A. Wiseman ruled that motions to strike are disfavored because they are generally a waste of time and a distraction rather than a genuine perfecting device.

Wiseman said that, if JG Sablan desires to allege that portions of DPL’s brief are false, it may do so without filing a separate motion to strike.

“The court, although bound to read all timely and properly filed submissions to it, is also free to investigate the record itself to determine whether the facts either party asserts are true,” the judge pointed out.

Consequently, Wiseman said, the danger of prejudice to a party due to another party’s misrepresentation of facts is lessened by the court’s ability to determine the truth of the matter through its own investigation of the record proper.

“Unlike a jury, the chance of confusion leading to unfair prejudice is low,” he stressed.

The government had brought a court action against JG Sablan, asking the court to declare as unconstitutional Public Law 15-21, the law that reinstated JG Sablan’s permit to mine pozzolan from Pagan Island.

JG Sablan filed a counter lawsuit against DPL. DPL then filed a motion for summary judgment on a portion of JG Sablan’s complaint.

The complaint alleged that DPL failed to provide JG Sablan due process—as provided under the Administrative Procedure Act and the Constitution—before terminating JG Sablan’s mining permit.

In support of its motion for partial summary judgment, DPL argued that it had complied with the APA by providing JG Sablan with a notice of termination with an explanation and provided time in which JG Sablan could demonstrate compliance with the permit.

DPL also argued that notwithstanding its compliance with the APA, JG Sablan had contractually waived any further due process protections by amending the permit itself.

In its opposition JG Sablan moved to strike several portions of DPL’s memorandum on the grounds that arguments contained in the memorandum were not properly part of the “record” available for review by the court; and that DPL’s memorandum made several false or misleading assertions.

JG Sablan asked the court to strike from the record the government’s opposition and cross-motion for summary judgment, saying these were untimely filed.

In denying the motion to strike, Wiseman cited that according to the plain language of the Commonwealth Rules of Civil Procedure 12(f),” a motion to strike brought pursuant to Rule 12(f) cannot be used to strike documents other than pleadings.”

“Because a motion paper is not a pleading, the Rule 12(f) is inapplicable,” the judge pointed out.

Therefore, Wiseman said, no matter how persuasive JG Sablan’s reasoning is, “the petitioner’s motion to strike the Commonwealth’s motion for partial summary judgment is improper because motion memoranda and affidavits are not pleadings within the meaning of Rule 12(f).”

“As a result, this court is reluctant to grant motions to strike—especially in non-jury trial matters—because they waste the court’s time and energy, which should instead be focused on the merits,” he said.

Motion to strike, Wiseman said, is inappropriate because the issue of the adequacy of agency due process was properly preserved in the hearing officer’s findings of fact and conclusions of law.

He said motion to strike is inappropriate because the truth or falsity of factual assertions can be weighed by the court.

Wiseman said JG Sablan additionally alleges that several portions of DPL’s memorandum should be stricken because they contain false assertions of fact.

“Without reaching the actual substance of the portions at issue, the court declines to strike them,” he said.

Wiseman cited that there are other means to attack an opposing party’s memorandum without filing separate motions.

First, he said, JG Sablan could have filed its own statements of undisputed and disputed material facts.

Second, Wiseman said, JG Sablan can simply refer to the perceived falsities in its memorandum without moving to strike.