Takahisa Yamamoto asserts that he should not be penalized for seeking a swift resolution to his lawsuit against Lt. Gov. Victor Hocog and Luta Mermaid LLC and its officers after recognizing that this case cannot proceed and for seeking its dismissal.
Yamamoto, through counsel George L. Hasselback, said should the U.S. District Court for the NMI determine that it will condition the dismissal of his claims upon his payment of attorney’s fees and costs, which he believes it should not, he should be given the opportunity to withdraw or amend his motion to seek dismissal with prejudice.
Dismiss with prejudice means Yamamoto can no longer re-file his lawsuit. He recently filed the motion to dismiss without prejudice, which allows him to re-file the matter.
Yamamoto expressed his opposition to attorney’s fees in his reply Thursday to Luta Mermaid’s and its officers’ response to his motion to dismiss.
Abelina T. Mendiola, Deron T. Mendiola, and Fidel S. Mendiola III are officers of Luta Mermaid LLC.
Citing precedent, Hasselback said “when a plaintiff dismisses an action with prejudice, attorneys’ fees are usually not a proper condition of dismissal because the defendant cannot be made to defend again.”
Yamamoto recently notified the court of his intent to dismiss his lawsuit against Hocog, and then-M/V Luta owner Luta Mermaid LLC, and its officers.
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 such costs and fees.
In Yamamoto’s reply Thursday, Hasselback argued that due to the current state of this case, it is clear that none of the parties are contemplating this matter to a trial on the merits.
Hasselback said Yamamoto’s motion to dismiss recognizes this fact and attempts to save the court and the parties significant time, money, and resources by bringing this matter to its end as quickly as possible.
Last Oct. 16, the court issued a case management scheduling order that set the deadlines by which all parties were to conduct pretrial discovery and motion practice.
Hasselback said to date, none of the parties have conducted any pretrial discovery, and the dates for that pretrial discovery have passed.
Hasselback said there has been no written discovery served upon the defendants by Yamamoto nor upon Yamamoto by the defendants.
Hassselback said there have been no depositions scheduled and there have been no experts disclosed.
In short, he said, all of the parties have done nothing since October 2017 to advance this matter other than to discuss the terms upon which it shall be dismissed.
Hasselback said given this lack of any pretrial discovery progress, the court would be justified in dismissing with prejudice all claims and counterclaims in this matter.
He said being unable to reach an agreement as to a mutual dismissal of all claims, Yamamoto recognized that this case cannot proceed and has sought dismissal.
Hasselback earlier told Saipan Tribune that the cargo ship M/V Luta is already in Guam and that another company now owns the vessel.
Hasselback also disclosed that Yamamoto has returned to Japan and that there was no settlement agreement reached between Yamamoto, Hocog, Luta Mermaid LLC, and the Mendiolas a.
Yamamoto is suing Hocog, Luta Mermaid, and the Mendiolas for allegedly refusing to pay back the $3.4 million that he put up for the vessel. The vessel was seized shortly after the U.S. Marshal Service seized the ship on Oct. 25, 2016. National Maritime Services was then appointed as substitute custodian of the vessel.
NMS later sued Yamamoto for failing to pay custodian fees.