Due to delayed service of process, the federal court has granted Tinian Dynasty Hotel and Casino owners’ motion to dismiss the lawsuit filed against them by over 500 current and former foreign workers.
U.S. District Court for the NMI Chief Judge Ramona V. Manglona dismissed without prejudice the lawsuit filed by Eric F. Dona and co-plaintiffs against Hong Kong Entertainment (Overseas) Investments Ltd. and Mega Stars Overseas Ltd. Dismissal without prejudice means the workers can re-file the lawsuit.
Manglona directed the clerk of court to vacate the hearing on this motion for Oct. 8, 2015, and close the case. The judge made the ruling based on the papers submitted by both parties.
Manglona said the behavior of the plaintiffs’ counsel, Samuel I. Mok, was not negligent but intentional: he is asserting that he had a better idea of when service should be made than the Judicial Conference Committee on Federal Rules of Civil Procedure does.
“That is not good cause,” the judge pointed out.
On the issue of whether the court should exercise discretion to extend the deadline to serve the process, Manglona said the plaintiffs do not assert that they would have a statute of limitations problem if the case were dismissed and they had to re-file it.
Manglona said the plaintiffs’ alleged injuries from the denial of HKE’s CW-1 petitions in December 2014 occurred less than a year ago.
Manglona said there is no indication that defense counsel Sean Frink evaded service or goaded Mok into not serving the defendants.
She said the parties’ discussions as to enlarging the time for defendants to respond to the complaint presupposes service because the time to respond allowed by the Rules—21 days—starts to run only after the summons and complaint have been served.
Manglona said it is misguided to cast aspersions on Frink, as plaintiffs do in their opposition brief (characterizing defendants’ motion to dismiss as “disingenuous” and shift the blame on him for their own counsel’s decision not to serve the original complaint).
“In these circumstances, the court declines to exercise its discretion under Rule 4(m) to enlarge time for service absent a showing of good cause,” the judge said.
HKE and Mega Stars Overseas Ltd., through counsel Frink, asked the court to dismiss the lawsuit due to delayed service of the summons and complaint.
Frink said the workers filed the lawsuit on Feb. 4, 2015, and that Federal Rule of Civil Procedure requires that service of the summons and complaint must be made upon each defendant within 120 days after the complaint is filed.
Frink said 120 days after Feb. 4, 2015, was June 4, 2015. The lawyer said the service of the complaint and summons did not take place upon either defendant on or before June 4, 2015.
In plaintiffs’ opposition, Mok asserted that good cause exists why service of their complaint was not timely made. Alternatively, Mok asked the court to give his clients more time to serve Tinian Dynasty owners with their lawsuit.
In their lawsuit, the workers alleged that the owners and management of Tinian Dynasty lied to them about their immigration status—that they were legally authorized to work despite the denial of their CNMI-only Transitional Worker (CW-1) petitions.
The amended complaint adds a claim of constructive fraud against Tinian Dynasty’s owner, HKE, and HKE majority shareholder, Mega Stars Overseas Limited.