The U.S. Justice Department has filed a brief response (just two pages) in the federal court in Wilmington, Delaware, after the court asked the DOJ to state its position on a motion for dismissal in the case against two companies allegedly affiliated with Dongwon Industries.

Dongwon is the owner of StartKist Co., and StarKist Samoa Inc.

Defendants early this year filed a motion for dismissal, arguing among other things, that the court lacks jurisdiction over the subject matter and that the plaintiff has failed to state a claim.

The federal court two weeks ago ordered the government to either file a written consent so that the court may rule on the motion for dismissal or otherwise notify the court of its position.

Among the allegations by plaintiff Moore & Company against the defendants is violation of the federal False Claims Act.  Moore alleges that Dongwon and its co-conspirators made false certifications every year from 2008 until 2014 to obtain South Pacific Tuna Treaty (SPTT) Fishing Licenses for which the federal government pays $16 million annually as part of a program to promote the U.S. fishing industry.

Responding on July 31 to the court’s order for a reply to dismissal of the lawsuit, Assistant U.S. Attorney Jennifer L. Hall said in her two-page submission, that the “government believes that the False Claims Act does not require the United States’ to consent to an involuntary dismissal and for this reason, does not oppose dismissal should the court conclude that dismissal is appropriate.”

“However, the government... requests that any dismissal be without prejudice as to the United States,” she said. (This means the government can file its own lawsuit against the defendants.)

Dongwon has denied in court documents that it owns the two vessels (Majestic Blue and Pacific Breeze), but plaintiffs disagree and allege in court documents that Dongwon had divested ownership through fake sales of the vessels to the Kim sisters in order to obtain fishing licenses, which are only available to U.S fishing vessels.

Meanwhile, Moore & Company submitted for the court’s records, the 85-page decision by the federal court in Guam, wherein U.S. Magistrate Judge Joaquin V.E. Manibusan Jr., ruled two weeks ago that Dongwon’s representatives knew that the Majestic Blue was unseaworthy before it sank off the waters of Guam in 2010 — killing the captain and an officer.

According to the federal judge, Dongwon sold Majestic Blue for $10 to Majestic Blue Fisheries LLC.

Earlier this year Majestic Blue Fisheries LLC petitioned the court for exoneration and limitation of liability, by seeking to limit its liability under federal law for “all damages occasioned” by the sinking of its vessel the Majestic Blue in 2010.

 (The owner's petition of exoneration and limitation of liability is the result of a wrongful death lawsuit pending in the Guam court against the company by the wife of the vessel’s captain, who died when the boat sank.)

Moore & Company told the Wilmington federal court that it filed the Guam court decision as it “appears to be relevant” to the case at issue. Moore & Company went as far as pointing out many specific sections of the Guam decision that it claimed to be relevant to the Wilmington case.

For example, the Guam court decision states that, “Petitioner had the means to discover the vessel’s unseaworthy condition, yet failed to do so and feigning blindness will not salvage its defense.” Also pointed out by Moore & Co., is that Dongwon sold Majestic Blue for $10 to Majestic Blue Fisheries LLC.

Samoa News should point out that Dongwon was not a party to the liability issue —which is the basis of the Guam federal court’s decision. However, Dongwon is mentioned in the decision because its contract with Majestic Blue LLC, calls for the South Korean based company to supply, among other things crew and maintenance.

Attorney Jerry Hamilton, Dongwon’s lead counsel in the wrongful death case against the company claims that Dongwon did not know the Majestic Blue fishing vessel was unseaworthy before it sank and it had also inspected it to make sure it was seaworthy before sending it out to sea, according to Undercurrent News, an industry online news service.

Hamilton also said that Dongwon was not a party in the Guam federal case dealing with the liability issue, and therefore was  “unable to present any evidence on its behalf.”  Hamilton provided to Undercurrent News (www.undercurrentnews.com) a list of evidence it has to be presented to the Guam court in future proceedings.

The lawsuit was first filed in November 2012 by Moore & Company, a Florida based law firm, and included the U.S. government as plaintiff. Defendants include South Korean based Dongwon, Majestic Blue Fisheries LLC, Pacific Breeze Fisheries LLC, Jayne Songmi Kim, her sister Joyce Jungmi Kim and their father Jaewoong Kim.  The Kim sisters own the two LLCs.

The federal government in May last year stated that if Moore & Company — or the defendants proposed this case be dismissed, settled, or discontinued, the government first wants to provide a written consent before a final decision is made.

(See July 30 edition of Samoa News prefer details on the Guam court’s decision)