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Defendant in “ex-parte communication” lawsuit says it “never” happened

CHIEF JUSTICE MICHAEL KRUSE
McGuire petitions court to set-aside an “entry of default”
reporterss@samoanews.com

Pago Pago, AMERICAN SAMOA — An alleged “ex-parte communication” between American Samoa Chief Justice Michael Kruse and local resident James L. McGuire during a court session in High Court “never” happened but has resulted in a “frivolous 1,000-plus page” federal lawsuit, that is “most unfortunate and a tremendous waste of resources for all parties involved.”

This is according to filings with the federal court in Honolulu last Friday, in support of McGuire’s motion to set-aside an “entry of default” against him, for failing to respond to a lawsuit filed by four Alega village residents Steven Jay Pincus Hueter, Rosalia Tisa Faamuli, Michael S. Kirk, and Faamuli Pete Faamuli.

Federal court records show that as of June 29th, Rosalia Tisa Fa’amuli’s claims against the defendants have been dismissed, based on her motion filed with the court. And she is no longer a plaintiff in this lawsuit.

As previously reported by Samoa News, plaintiffs alleged in the multi-million dollar lawsuit filed two months ago that Kruse and private citizen McGuire, violated laws regarding an ex-parte communication between a judge during a High Court hearing and a private citizen and for interference with cleanup of pollution at the Alega Marine Protected Area.

They further allege that McGuire expressed interest in suing to gain access to the private beach in Alega, of the private Alega Marine Protected area, allegedly for the purpose of launching sailboats.

According to the plaintiffs Kruse held “an illegal ex-parte conversation” at the bench with McGuire — in violation of the American Bar Association Judicial Code of Conduct — during a Mar. 31, 2021 hearing in the High Court on the AST Telecom case.

The plaintiffs are seeking $200,000 compensatory damages and $2 million in punitive damages against Kruse and McGuire. (See Samoa News edition May 20th for details.)

McGuire first became aware of the lawsuit on or about the night of June 4, 2021, at approximately 8:45 p.m., when Hueter “yelled out and placed documents outside” McGuire’s residence, according to the defense’s motion to set-aside an “entry of default” against McGuire filed last Friday.

“Since then”, Hueter and Kirk “have each returned to... McGuire’s residence repeatedly, often in the dark of night, already informed of their trespass”, with the intention of “serving” documents on McGuire or his family members, the court filing states.

 The defense says this practice is not only a violation of Rule 4(c) of the Federal Rules of Civil Procedure, “but it was extremely alarming” to the defendant and his family, including his toddler grandchild, who all reside in the family home.

In a signed declaration submitted with the motion, McGuire claimed that Hueter’s action the night of June 4th “severely startled my entire family, including my two-year-old grandchild, who had just been released” from the hospital after a four-night stay for treatment of pneumonia.

“In defense of my family and home, I ordered... Hueter to leave the premises immediately. The next day, I reported the trespass to the police and they informed Hueter of my complaint for trespass,” McGuire said in the declaration, and noted that that Hueter still returned to his home several more times to “serve” documents.

And since June 4th, McGuire alleges that Kirk “has also come to my home several times, including at night, to ‘serve’ documents on either me or my family.”

Regarding the alleged “ex parte communication” between McGuire and the Chief Justice, the defense motion responded that it, “simply did not occur.”

In his signed declaration, McGuire said it “never” happened and explained that he was in the Chief Justice’s courtroom, on Mar. 31st to observe a scheduled hearing relating to a land controversy in the village of Alega.

Before the court-calendar started, the “Chief Justice called me to the bench and advised me to remind my eldest daughter Marian McGuire to submit her 2021 American Samoa Bar dues,” McGuire explained. “I acknowledged his instructions and sat down.”

After the hearing, McGuire said he called his daughter — who is an attorney and a member of the American Samoa Bar Association and relayed the message.

“That was the end of my involvement on that issue,” he said.

In the motion to set aside the “entry of default,” the defense argued that plaintiffs “have turned this very brief conversation between the Chief Justice and... McGuire into a frivolous 1,000-plus page lawsuit is most unfortunate and a tremendous waste of resources for all parties involved.”

(McGuire’s daughter also filed a declaration on the Bar Association dues, with the phone call from her father, on the same date and later that afternoon from the Chief Justice.)

The defense went on to explain why McGuire did not file a response to the lawsuit within the stated time frame.

Among them is that while the defendant is a member of Bar Association as a Legal Practitioner, he is not familiar at all with federal court practice.

Furthermore, during the month of June, McGuire and almost all members of his household were ill with either pneumonia or the flu. “It is Defendant McGuire’s belief that the repeated appearances by Plaintiffs Hueter and Kirk at the McGuire residence likely delayed his physical and mental recovery,” the defense alleges.

The defense argued that while McGuire has not yet filed a response with the Court, his conduct was excusable because he was battling illness during the time period an answer was due, and he did not have the immediate ability or resources to properly defend the lawsuit within the time constraints.

McGuire had no intent to gain an advantage over the opposing party (Plaintiffs) or to delay legal proceedings. The defense further outlined other arguments for granting of the motion.

McGuire is representing himself, pro-se in his defense and so are the plaintiffs.

As previously reported by Samoa News, the US Secretary of Interior — which has jurisdiction over the Chief Justice of American Samoa — was later added to plaintiffs lawsuit.