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BoH asks ASG to abstain from further proceedings until appeal is resolved

Bank of Hawai’i has asked the High Court of American Samoa to abstain from enforcing its preliminary injunction order against the bank in its ongoing legal battle with the American Samoa Government, while awaiting the outcome of the federal case at the Ninth Circuit Court of Appeals.

A hearing on ASG’s motion to enforce the injunction is set for today in the High Court, which has already ordered the bank to restore the more than $800,000 it froze in the ASG account. The frozen money has since been deposited with the federal court clerk in Honolulu, while ASG appealed the Honolulu federal court’s order to garnish the money from the bank.

The garnishment order was based on a motion by Marisco Ltd., who sought the payment after ASG allegedly failed to pay its outstanding debt.

Last Thursday the bank filed a 10-page motion opposing ASG’s Expedited Motion to Enforce Preliminary Injunction against BoH.

Rather than enforce the preliminary injunction, BoH requests the High Court to “abstain from further proceedings”, referencing the federal Colorado River case “doctrine and principles of comity and judicial economy,” according to the motion. BoH says the same issues raised in this litigation were fully raised and briefed in the Marisco v. ASG case in the Honolulu federal court, which ASG has appealed.

“As it did here, ASG presented arguments to the [federal] court relating to the application of American Samoa law to Marisco’s garnishment of ASG’s bank account” in the territory, the bank said.

“Those legal issues are pending in the Ninth Circuit where ASG will have a full and fair opportunity to have them resolved,” said BoH.


The Honolulu federal court and the High Court “have concurrent jurisdiction over BoH and ASG in this matter” and given that the Honolulu case was initiated long before the local action, BoH requested the High Court abstain from taking any further action in this matter, according to the bank’s motion.

“When a concurrent jurisdiction problem arises, the proceedings of one court will usually be stayed or dismissed, often through the use of the abstention doctrine,” said BoH, citing the Colorado River case.

Additionally, the doctrine of abstention is applicable to cases in which both American Samoa courts and the U.S. federal courts have a claim of jurisdiction, the bank said and cited the federal case of Richard Majhor vs. Kempthorne in 2007 (when Majhor’s case was pending here and he, at the same time, filed a suit with the federal court in D.C.)

“It has been held that the court first assuming jurisdiction may exercise its jurisdiction to the exclusion of other courts,” said BoH. “In assessing the appropriateness of dismissal in cases where there is concurrent jurisdiction, it is appropriate for a court to consider in which jurisdiction it was obtained by the concurrent forums.”

BoH also pointed out that the U.S. Supreme Court has stated that “the authority of a federal court to abstain from exercising its jurisdiction extends to all cases in which the court has discretion to grant any relief.”

In addition to abstention, the doctrine of comity may, in numerous circumstances, permit or require a court to stay or dismiss one action in favor of other litigation, said BoH.


“It would be premature for this court to enforce the preliminary injunction against BoH now,” the bank argued and stated that the High Court “should abstain in favor of ongoing proceedings” in the Ninth Circuit of Appeal and the Honolulu federal court.

Or alternatively, modify the preliminary injunction and defer any enforcement until all substantive issues have been fully adjudicated in the High Court, the bank said.

Meanwhile, the federal court in Honolulu has taken under advisement BoH’s motion to enjoin ASG and its attorneys from instituting or continuing any proceedings before the High Court with respect to the more than $800,000 deposited at the federal court registry. Oral arguments were heard last Friday.