The federal court has ruled that if investor Takahisa Yamamoto does not want to seek dismissal of his lawsuit with prejudice over cargo ship M/V Luta, it is inclined to set a condition that he will be liable to foot the costs and attorneys’ fees of the people he is suing.
Dismissal with prejudice means Yamamoto will no longer be allowed to re-open his lawsuit against Lt. Gov. Victor Hocog, Luta Mermaid LLC, and its officers.
Citing precedent, U.S. District Court for the NMI Chief Judge Ramona V. Manglona said that while defense counsel expenses are not a reason to deny a voluntary dismissal motion, the court has discretion to condition the dismissal without prejudice “upon the payment of appropriate costs and attorney fees.”
Manglona said “imposition of costs and fees…is not mandatory, however.”
The judge said such an award should cover only “attorney fees for work which cannot be used in any future litigation of these claims.”
Manglona granted Yamamoto’s permission to withdraw no later than June 22 his motion to dismiss without prejudice and resume prosecuting his claims, or to amend it so as to seek dismissal with prejudice.
Dismissal without prejudice means Yamamoto may re-file the lawsuit.
Yamamoto recently notified the court of his intent to drop his lawsuit without prejudice.
Hocog, Luta Mermaid LLC and its officers Abelina T. Mendiola, Deron T. Mendiola, and Fidel S. Mendiola III, do not oppose dismissal without prejudice so long as it is conditioned on payment of their costs and attorneys’ fees.
In his reply, Yamamoto, through George L. Hasselback, requests that, if the court sets conditions for a dismissal without prejudice, he be permitted to withdraw his motion or to amend it to seek dismissal with prejudice.
The motion to dismiss hearing was supposed to be yesterday, but Hasselback asked to postone the proceeding because of a death in his family.
In her order Wednesday, Manglona granted Hasselback’s request for continuance and rescheduled the hearing to July 19 at 9am.
Manglona said if Yamamoto withdraws the motion to dismiss, she will convert the July 19 setting to a status conference to revise the case management scheduling order.
Manglona said if Yamamoto amends the motion to dismiss to seek dismissal with prejudice, defendants must submit, no later than July 6, a response to the amended motion.
The judge said if Yamamoto does not withdraw or amend the motion to dismiss, defendants must submit, no later than July 6, a bill of costs and fees for work performed.
Luta Mermaid and the Mendiolas, through their counsel William M. Fitzgerald, stated that the court found that the arrest of M/V Luta was improper and that Yamamoto did not have probable cause to arrest the vessel, and that the arrest could not stand.
Fitzgerald said his clients spent considerable sums in payment of costs and attorneys’ fees to gain release of the vessel and the dismissal of the suit should be conditioned upon an order requiring Yamamoto to pay the costs and fees.
In Yamamoto’s reply, Hasselback asserted that his client should not be penalized for seeking a swift resolution to his lawsuit after recognizing that this case cannot proceed and for seeking its dismissal.
Yamamoto is suing Hocog, Luta Mermaid, and its officers for allegedly refusing to pay back the $3.4 million that he put up for the vessel.