5ASR3d17

PROGRESSIVE

INSURANCE COMPANY (PAGO PAGO) LTD., Plaintiff

 

v.

 

SOUTHERN

STAR INTERNATIONAL, INC.

dba

HONG KONG RESTAURANT, TUTUILA

INTERNATIONAL,

INC., NTV ELECTRONICS, INC.,

KENNY

AND HELEN YOUNG, AINOAMA FATA

dba

NOFO’S STORE, AND DOES I-V, Defendants.

 

High

Court of American Samoa

Trial

Division

 

CA

No. 129-99

 

January

22, 2001

 

 

[1] A motion to

dismiss for failure to state a claim will be denied unless it appears beyond doubt

that no set of facts can be proven which would entitle a defendant in

interpleader to relief.

 

[2] In

considering a 12(b)(6) motion, all material allegations in the complaint are

taken as true and construed in the light most favorable to the defendant.

 

[3] The burden

of proving the absence of a claim rests on the movant.

 

[4]

In interpleader cases, the appropriate procedure for the court is to consider

the merits of the claims in the second stage of interpleader or at trial.

 

Before

KRUSE, Chief Justice, and LOGOAI, Chief Associate Judge.

 

Counsel: For Plaintiff, Roy J.D.

Hall, Jr.

              

For Defendants Southern Star International, Inc. dba Hong Kong

Restaurant, and Kenny and Helen Young, Paul F. Miller

  

For Defendant Ainoama Fata dba Nofo’s Store, Katopau T. Ainu`u

 

ORDER

ON MOTION TO DISMISS DEFENDANT

AINOAMA

FATA dba NOFO’S STORE

 

 

 

Background

 

On

or about August 8, 2000, defendants Southern Star International, Inc. dba Hong

Kong Restaurant (“SSI”), and Kenny and Helen Young (the “Youngs”) filed a

motion to dismiss defendant Ainoama Fata dba Nofo’s Store (“Fata”).  In the alternative, SSI and the Youngs ask

for summary judgment as to all claims made by Fata.  The motion was set for hearing on October 27,

2000.  However, the motion was not heard,

nor was it brought to the Court’s attention until counsel for SSI and the

Youngs raised it during a pre-trial conference hearing held on January 10,

2001, in preparation for this week’s trial.[1]

 

Standard

of Review

 

[1-3]

A motion to dismiss for failure to state a claim will be denied unless it

appears beyond doubt that no set of facts can be proven which would entitle a

defendant in interpleader to relief. See Moeisogi v. Faleafine, 5

A.S.R.2d 131, 134 (Land & Titles Div. 1987).  In considering a 12(b)(6) motion, all

material allegations in the complaint are taken as true and construed in the

light most favorable to the defendant.  NL

Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The burden of

proving the absence of a claim rests on the movant.  Kehr Packages, Inc. v. Fidelcor, Inc.,

926 F.2d 1406, 1409 (3d Cir. 1991).

 

Discussion

 

[4]

SSI and the Youngs allege that Fata failed to assert a claim to the stake at

issue.  Contrary to this allegation, in

her answer and cross-claim, which was filed March 30, 2000, Fata avers that

under the terms of a lease agreement, SSI and the Youngs agreed to indemnify

Fata for losses or injury to the leased property.  The leased property is the same property

insured under the fire/material damage policy, No. 000600720 (“fire policy”),

which is the stake at issue in this case. 

On April 7, 2000, subsequent to Fata’s filing of her answer and

cross-claim, we granted the first stage of interpleader joining as defendants

SSI, the Youngs, and Fata.[2]  In so doing, we explained that, as is the

appropriate procedure for interpleader cases, the merits of the claims are to

be considered in the second stage of interpleader or at trial.

 

SSI

and the Youngs equate Fata’s claim to the stake at issue with that of Tutuila

International, Inc., and NTV Electronics, which we dismissed from this action

on July 25, 2000.  In contrast to Fata’s

claims, we found Tutuila International, Inc. and NTV Electronics’ basis for

relief was premised upon another insurance policy, a liability policy issued by

Progressive, No. 000600721 (“liability policy”) and not the fire policy, which

is the stake at issue in this case.  Furthermore,

unlike Fata’s answer and cross-claim, Tutuila International, Inc. and NTV

Electronics did not file their answer until April 28, 2000, over four and a

half months after the complaint was filed.

 

In

considering Fata’s pleadings with the requisite liberality, and given her

asserted interest in the stake, which we construe as true and in the light most

favorable to her, we find that SSI and the Youngs have failed to show beyond a

doubt that Fata can prove no set of facts that would entitle her to the stake

at issue.  Furthermore, in keeping with

our earlier order granting interpleader, we continue to find that the interest

of judicial efficiency and fairness mandate the simultaneous adjudication of

Fata’s claims in this case, the merits of which should await the second stage

of interpleader or trial.  Based upon the

foregoing, SSI and the Youngs’ motion to dismiss is denied.  The alternative application for summary

judgment is also denied.

 

It is so ordered.