Pago Pago, AAMERICAN SAMOA — The wrongful death lawsuit brought on by surviving members of a fisherman who died when he fell overboard a US fishing vessel docked in Pago Pago and drowned, is far from over in the federal courts.

Last month, US District Court, Philip S. Gutierrez of the federal court in Santa Ana, California ruled that the High Court of American Samoa has jurisdiction to hear a wrongful death lawsuit filed by the plaintiffs — Maren Miller, the personal representative of the estate of Michael Castaneda (deceased), and Tracey Castaneda, the deceased’s wife.

The plaintiffs had filed a parallel case with the High Court of American Samoa.

Gutierrez dismissed the federal case “without prejudice for ‘forum non conveniens’... conditioned upon Defendants’ compliance with their representations that they will submit to jurisdiction in the High Court of American Samoa.”

The dismissal order was issued Jan. 22nd based on a motion filed by Tri Marine Fishing Company LLC (TMFC) — one of the defendants in both the federal court and High Court cases.  (See Samoa News Jan. 25th edition for details).

RECONSIDERATION MOTION

On Feb. 21st, plaintiffs moved to reopen their case with a motion asking the court for reconsideration of its order to dismiss the case from the federal level for ‘forum non conveniens’.

Plaintiffs cited four specific reasons for seeking to reopen the case and for reconsideration. Among them, is that “new material facts have emerged” after the court's decision. Material facts claimed by the plaintiffs came from a videotaped deposition on Feb. 13th of Phillip Trutanich, in Seattle, Washington.

Trutanich is an employee of Tri Marine Fishing Management and is a fleet manager according to the plaintiffs, who argued that they were previously prevented from taking Trutanich’s deposition because Defendants refused to permit substantive discovery until the Motions for Forum Non Conveniens and Motions for Personal Jurisdiction were determined.

Moreover, Plaintiffs also were not provided with written discovery in any action until after the Court’s Jan. 22nd order, which prevented them from preparing for, and taking Trutanich’s deposition.

The plaintiffs cited excerpts from Trutanich’s deposition, including a provision of the deceased’s employment contract, which “contains a venue selection clause to litigate in State or Federal Court in Washington... any matters related to employment, including death.”

Other new material facts cited by the plaintiffs is that there was only one eyewitness to the accident, a Samoan forklift operator, an employee for Tri Marine owned Samoa Tuna Processors Inc., in American Samoa.

“This witness attempted to notify the vessel crewmembers... that someone had fallen off the gangway plank [of the vessel],” the plaintiffs said, citing excerpts from Trutanich’s deposition. “The eyewitness yelled for help but nobody heard.”

“Finally crewmembers approached from the outside and walked aboard the vessel long after Decedent drowned,” the plaintiffs motion states. “The eyewitness notified them that Decedent had fallen into the water. These crewmembers then made a rescue attempt. By the time they recovered Decedent’s body, he was dead.”

Trutanich’s deposition was part of the High Court of American Samoa case and the 48- page deposition was included in several documents filed with the federal court.

In their motion for reconsideration, the plaintiffs also argued that the High Court of American Samoa — which does not have jury trials for civil cases — “may refuse to accept this case” but didn’t provide any other details.

“In the interests of justice and for practical reasons”, plaintiffs request that “this Court retain jurisdiction until there is confirmation from the Parties that the High Court of American Samoa has accepted this case.”

A hearing at the federal court is set for April 8th on the plaintiffs’ new motions.

APPEALS COURT

The plaintiffs on Feb. 22nd filed a notice, appealing the lower court’s decision to the Ninth Circuit Court of Appeal, which has set Apr 22nd for the plaintiffs to file their opening brief and May 22nd for a response from the defendants — Cape Ferrat Fishing, LP, Samoa Fishing Management, Inc., Samoa Tuna Processors, Inc., Tri Marine Fish Company, LLC, Tri Marine Fishing Management, LLC and Tri Marine Management Company, LLC.

Plaintiffs had argued — among other things in lower court, that “American Samoa would be an inadequate forum” to hear claims under the federal Jones Act because the “High Court of American Samoa does not conduct jury trials in civil actions.”

The plaintiffs are expected to argue this issue at the appellate level.