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Govt argues for dismissal of motion for Summary Judgment in wrongful termination suit

Marie Alailima
Cites among other things, it was filed improperly and prematurely

Pago Pago, AMERICAN SAMOA — In the government’s motion to the Administrative Law Judge (ALJ) to deny a request for review and motion for Summary Judgment by a former employee of the Public Defender’s office, the government argued that the motion was improperly and prematurely filed and requested that the ALJ deny the petitioner’s motion in its entirety.

Plaintiff in this case is Leauma Ben Alefosio while ASG is the defendant. Assistant Attorney General and Chief of Civil Division, Julia Furlong is representing ASG while Alefosio is acting as Pro Se (representing himself in court).

Furlong said the motion was filed a mere 18 days after the commencement “of this action” — prior to the American Samoa Government’s (ASG) response deadline, the onset of discovery or any stipulations as to facts among the parties — and is premature and inappropriate at this stage in the proceedings.

According to the government, ALJ proceedings are guided by the Rules of Civil Procedure and Rules of Evidence in the High Court of American Samoa, and Leauma’s status as a “pro se litigant” doesn’t excuse him from complying with these rules.

The government says Leauma “has failed to comply with the clear requirement of T.C.R.C.R 56(a) by improperly filing a motion for summary judgment less than 20 days after commencing the case.”

And because the motion is not properly pending before the ALJ, ASG maintains it remains under no obligation to respond or defend at this time, according to court documents.

Furlong also argues that the discovery process has not commenced, not a single evidentiary hearing has taken place and not a single piece of evidence has been admitted into the record by the ALJ.

Further, due to pending adjudication of its motion to dismiss, it is too early in the case for ASG to have even filed an answer in this matter, should one be required.

The government points out that Leauma has not initiated any communication with ASG’s counsel regarding this case, so it is unclear why he represents in his filing that any fact is undisputed — absent the existence of an agreement with ASG as to what are the stipulated facts.

In addition, Furlong states that Leauma’s motion fails to contain sufficient evidentiary support — it was filed without any supporting evidentiary material, she notes, let alone credible and admissible material. There is not a single affidavit or other “evidence” attached in support to the motion served upon ASG.

In the court documents, Furlong describes Leauma’s motion as consisting of allegations — often spurious or frivolous in nature — devoid of evidentiary support. The motion largely rests on asserted facts that appear to be a combination of hearsay, unsupported conclusions and/or mere speculation, the government states.

Further, while the motion contains reference to “exhibits,” some of which have been assigned numbers by the petitioner, he has however neglected to share them with ASG or submit them for admission into his tribunal’s evidentiary record. Accordingly, Leauma falls short of his burden of production under the established summary judgment standards of this jurisdiction.

As such, ASG submits that it is under no obligation to defend itself against the motion at this time due to (i) its improper and premature filing, and (ii) petitioner’s failure to meet its burden of production as movant (person who files the petition for judgement).

It also does not believe Leauma “can meet his burden of establishing that [a] summary judgment is appropriate as a matter of law, let alone” that he “has stated a valid claim to adjudicate before the tribunal, as outlined in ASG’s pending motion to dismiss.”

ASG has filed an affidavit by the Director of the Department of Human Resources (DHR), which sets forth that Leauma was properly considered a probationary employee at the time of his termination.

The affidavit also contains certified copies of the 303 forms establishing his employment history on file with DHR.

The government claims that the affidavit that was filed, along with its accompanying evidence, in opposition to the motion, demonstrates multiple genuine issues as to material facts relating to Leauma’s pending claims — such as whether he was not properly a probationary employee at the time of his termination and whether he was party to a contract or promise regarding permanent employment with ASG.

Furlong states that to avoid any doubt, “ASG disputes both factual claims.”

Further, “ASG vehemently denies any facts alleged that purport to show discrimination on the part of any ASG employee,” noting that ASG has not had the opportunity to interview and/ or depose the many individuals mentioned in Leauma’s motion given the early, pre-discovery stage of this case.

Furlong says that while ASG believes the Leauma’s claims are not properly before the ALJ and should be dismissed, ASG however, in the alternative, “respectfully submits that justice will be best served by allowing the case to be adjudicated on the merits in order to develop the many genuine issues of material fact present in this matter.”

(See Monday, Feb. 14 issue for details on petitioner’s arguments.)

The Summary Judgment Hearing was held on August 20, 2021 and the ALJ judge Marie Alailima has yet to issue a decision.