INSURANCE COMPANY (PAGO PAGO) LTD., Plaintiff
STAR INTERNATIONAL, INC.
HONG KONG RESTAURANT, TUTUILA
INC., NTV ELECTRONICS, INC.,
AND HELEN YOUNG, AINOAMA FATA
NOFO’S STORE, AND DOES I-V, Defendants.
Court of American Samoa
Samoa statutes and rules of court provide no authority for bringing a motion to
reconsider a non-final interlocutory order in a pending case.
 A motion
for reconsideration or new trial is a necessary precondition for filing an
requirement that a pre-trial order be final or fall within the collateral order
exception to the finality rule before it may be appealed applies to interim
orders before they may be reconsidered.
 As a
general rule, pre-trial orders governing discovery are neither final decisions,
nor fall within the collateral order exception.
 A party
affected by a court’s interim discovery ruling may challenge the decision on
appeal from the final decision in the case.
Court declined to reconsider pre-trial discovery ruling, granting motions to quash
and for protective order, since said ruling was reviewable upon appeal from
final decision in case.
Where counsel failed to heed Court’s warning to be forthcoming with court, and
court determined that he had violated T.C.R.C.P. 11(b)(3), monetary sanctions
KRUSE, Chief Justice, and LOGOAI, Associate Judge.
For Plaintiff, Roy J.D. Hall, Jr.
Southern Star International, Inc. dba Hong
Kong Restaurant, and Kenny and Helen Young, Paul F. Miller
For Defendant Ainoama
Fata, Katopau T. Ainu`u
ON MOTION TO RECONSIDER ORDER QUASHING
AND GRANTING PROTECTIVE ORDER
this stage in the proceedings, defendants Southern Star International, Inc. dba
Hong Kong Restaurant (“SSI”), and Kenny and Helen Young (“Youngs”) (together
“Defendants”) in their motion for reconsideration, ask the Court to revisit an
earlier decision rendered in this case.
On January 29, 2001, we issued an interlocutory order granting Progressive
Insurance Company (Pago Pago) Limited (“Progressive”), and the Bank of Hawaii’s
motions to quash the June 5, 2000 subpoena duces tecum ad testificandum for the
Bank of Hawaii, and granted Progressive’s motion for a protective order against
the same subpoena. On February 7, 2001,
Defendants moved for reconsideration of the order. On February 21, 2001, Progressive responded
with a memorandum in opposition to Defendants’ motion. The next day, counsel argued the motion. For the following reasons, we deny
Motion to Reconsider
or for a New Trial
American Samoa statutes and rules of court provide no authority for bringing a
motion to reconsider a non-final interlocutory order in a pending case. While a motion for reconsideration or a new
trial is prescribed as a mandatory pre-requisite to appeal a judgment under
A.S.C.A. § 43.0802, this provision applies to final decisions, not to non-final
interlocutory orders. Under A.S.C.A. § 43.0802(a), “[b]efore filing
a notice of appeal, a motion for a new trial shall be filed within 10 days
after the announcement of the judgment.”
The appeal must be filed “within 10 days after the denial of a motion
for a new trial.” A.S.C.A. §
43.0802(b). The plain language of
A.S.C.A. § 43.0802 expressly mandates that motions for reconsideration or new
trial be raised as a condition to appeal, almost immediately preceding that
In Kim v. American Samoa Gov’t, 17 A.S.R.2d 193, 195 (App. Div. 1990),
the Appellate Division decided that an interlocutory order must be final or
fall within the collateral order exception to be appealable:
fall within the collateral order exception, an order must (1) conclusively resolve
the disputed question; (2) resolve an important issue completely separate from
the merits of the action; and (3) be effectively unreviewable on appeal from
the final judgment in the main case.
(citations omitted). Because motions for
reconsideration or new trial are brought as part and parcel of an appeal, the
requirement that a pre-trial order be final or fall within the collateral order
exception to the finality rule before it may be appealed likewise applies to
interim orders before they may be reconsidered.
See Kim, 17 A.S.R.2d at 195 (App. Div. 1990).
purpose of motions for reconsideration is to conserve judicial resources by
allowing the trial court the opportunity to assess and correct its own errors
prior to appellate review. However,
requiring the court to reconsider all interlocutory orders would run counter to
this very principle. In the interest of
judicial economy we adopted the rule of finality, and the collateral order
exception to the rule as outlined in Kim, and further apply that
standard to motions for reconsideration.
Generally, pre-trial orders governing discovery are not final decisions, nor do
they fall within the collateral order exception to the rule. A party affected by a court’s interim
discovery ruling is not foreclosed from challenging the decision on appeal from
the final decision. See Hancock v.
State, 800 S.W.2d 683, 684 (Tex. App. 1990) (denying appellate review of
discovery order); Clark v. Monnens, 436 N.W.2d 830, 831-32 (Minn. Ct.
App. 1989); Kennedy v. Chalfin, 310 N.E.2d 233, 235 (Ohio 1974).
Similarly, our January 29, 2001 pre-trial discovery ruling, granting the
motions to quash and for a protective order, is reviewable upon appeal. Therefore, since Defendants are not precluded
from challenging the discovery order upon appeal, we deny reconsideration.
June 5, 2000, Defendants served a subpoena for documents and a deposition on
the Bank of Hawaii. Subsequently,
Progressive and the Bank of Hawaii each moved to quash the subpoena and
Progressive requested a protective order against the same. Defendants failed to file any written
opposition before the hearing on the motion.
Counsel for Defendants assert that, “the hearing scheduled to hear the
motions inadvertently and through no fault never occurred and the subject was
visited the first time during the pre-trial hearing on January 11, 2001.” (Def.’s Mot. for Reconsideration 4.) Contrary to counsel’s averment, counsel
argued the motion on June 20, 2000, and the Court took the motion under
advisement. The matter was raised during
the January 11, 2001 pre-trial hearing, but only in the context of tying up
loose ends in preparation for trial.
We have previously warned Defendants’ counsel, Mr. Miller, to consider seriously
his ethical duty to be forthcoming with the Court. (Order on Motion to Quash Subpoena and for
Protective Order at 4-5 (January 29, 2001).)
He has failed to heed this warning.
When counsel affixed his signature to his motion for reconsideration, he
certified that “to the best of . . . [his] knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances . . . the
allegations and other factual contentions have evidentiary support.” T.C.R.C.P. 11(b)(3). Contrary to counsel’s certification of truth,
counsel falsely states that the Court did not hear the motions to quash the
subpoena and issue a protective order.
We judicially note that in another matter similar to the case at bar, in
which Mr. Miller was the counsel of record, the Court ordered payment of
reasonable expenses and attorney’s fees for the bringing of the motion in the
amount of $300.00. See YHT, Inc. v.
Oxford/Progressive Group, 5 A.S.R.3d 44, 48 (Trial Div. 2001)
(issuing protective order and commanding $300.00 payment for the bringing of
the motion). Likewise, for counsel’s
transgression in this matter, we sanction him and order that he pay
Progressive’s costs for answering the motion in the amount of $300.00.
Defendants’ motion for reconsideration is denied.
Counsel Paul Miller shall pay Progressive’s reasonable expenses, including
attorney’s fees, of answering the motion for reconsideration in the amount of
is so ordered.
 Authorized by A.S.C.A. § 43.0802, T.C.R.C.P. 59
permits parties to move for a new trial or for alteration or amendment of
judgment within a similar timeframe.
 Counsel in response to the Court’s inquiry on pending
motions, explained that Progressive and the Bank of Hawaii’s motions to quash
the June 5, 2000 subpoena and issue a protective order were under advisement
and awaited the Court’s written decision.