PRATT & WHITNEY CANADA (A`asia) PTY., LTD., Plaintiff,

 

v.

 

SAMOA AVIATION INC., dba SAMOA AIR, Defendant.

 

High

Court of American Samoa

Trial

Division

 

CA

No. 20-03

 

December

2, 2003

 

 

[1] Summary judgment

is appropriate where the pleadings and supporting documents show that there is

no genuine issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.

 

[2] In ruling

on a summary judgment motion, a court must: (1) view all pleadings and

supporting documents in the light most favorable to the nonmoving party; and

(2) treat the nonmoving party’s evidence as true and draw from such evidence

the inferences most favorable to the opposing party. 

 

[3] On a motion

for summary judgment, the moving party bears the burden of showing there is no

genuine issue of material fact. 

 

[4] After the

movant shows that there is no genuine issue of material fact on a motion for

summary judgment, the nonmoving party must then bear the burden of

affirmatively showing that there is a genuine issue for trial.

 

[5] Under

T.C.R.C.P. 5(a), a party opposing summary judgment must serve the movant with

its opposition papers.

 

[6] E-mail is

usually not a permitted means of service.

 

[7] The court

possesses discretion to exclude unserved documents from its consideration.

 

[8] Where party

knew of the service requirements under the rules and of the possible penalty

for failing to affirmatively show a genuine issue for trial, yet failed to

properly serve its opposition papers, Court concluded that such opposition

papers would not be considered.

 

[9] In filing a

memorandum only via facsimile, a party fails to meet the original signature

requirement of T.C.R.C.P. 11.  

 

[10] In order to

constitute a proper affidavit, the document must contain certain component

parts, consisting of: (1) the caption or title; (2) the venue; (3) the

affiant’s signature; and (4) a certificate evidencing the fact that the

affidavit was properly made before a duly authorized officer.

 

[11]

Affidavits must be signed in the presence of the notary, as an authorized

official, to assure the affiant’s identity. 

 

[12]

The court will sanction attorneys who are proven to have falsely acknowledged

affidavits or submitted false papers to the court.

 

Before

RICHMOND, Associate Justice, ATIULAGI, Associate Judge, and TAPOPO, Associate

Judge.

 

Counsel:            For Plaintiff, Charles V. Ala`ilima and Mark Ude

 For Defendant, Paul F. Miller and Robert K.

Maez

 

ORDER

GRANTING MOTIONS TO EXCLUDE FROM CONSIDERATION DEFENDANT’S OPPOSITION

MEMORANDUM AND AFFIDAVIT AND FOR SUMMARY JUDGMENT

 

Plaintiff Pratt

& Whitney Canada (A`asia) Pty., Ltd. (“P&WC”) leased two core aircraft

engines to Defendant Samoa Aviation Inc., doing business as Samoa Air (“Samoa

Air”).  After termination of the lease

contract, Samoa Air returned the engines. 

On March 14, 2003, P&WC filed this suit against Samoa Air claiming

unpaid rent and damages for the replacement of parts missing from the returned

engines.  P&WC moved for summary

judgment on October 2, 2003.  In

response, Samoa Air transmitted to P&WC by e-mail a memorandum opposing

summary judgment, a supporting affidavit, and an e-mail message (“opposition

papers”).  Samoa Air then transmitted to

the Court by facsimile the opposition papers. 

P&WC motioned to exclude these documents from the Court’s

consideration.  For the reasons stated

below, we grant the motion to exclude and grant summary judgment.

 

Standard of Review

 

[1-4] Summary judgment is

appropriate where the pleadings and supporting documents show “that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.”  T.C.R.C.P.

56(c).  In ruling on such motions, a

court must: (1) view all pleadings and supporting documents in the light most

favorable to the nonmoving party, D.

Gokal & Co. v. Daily Shoppers, Inc., 13 A.S.R.2d 11, 12 (Trial Div.

1989); and (2) treat the nonmoving party’s evidence as true and draw from such

evidence the inferences most favorable to the opposing party.  Lokan

v. Lokan, 6 A.S.R.2d 44, 46 (Trial Div. 1987).  The moving party bears the burden of showing

there is no genuine issue of material fact. 

Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986).  The nonmoving

party must then affirmatively show there is a genuine issue for trial.  Id.

at 324. 

 

Discussion

 

A.  Motion to Exclude    

 

[5-8] We exclude from

consideration Samoa Air’s opposition papers. 

T.C.R.C.P. 5(a) requires Samoa Air to serve P&WC with the opposition

papers.  Methods of service are

specifically enumerated under T.C.R.C.P. 5(b). 

As permitted under T.C.R.C.P. 5(b), “service by mail is complete upon

mailing.”  E-mail is usually not a

permitted means of service.  See RIO Prop., Inc., v. RIO Int’l Interlink,

284 F.3d 1007, 1014-16 (affirming the sufficiency of court ordered service by

e-mail); GMA Accessories, Inc. v.

Megatoys, Inc., 2003 WL 193507 at *1 n. 2 (S.D.N.Y. 2003).  Samoa Air offers no proof of service and no

excuse for its failure to mail the opposition papers to P&WC.  We have the discretion to exclude unserved

documents from consideration.  See Robinson

v. State Farm Mut. Auto. Ins. Co., 813 So. 2d 924, 927 (Ala. Ct. App. 2001)

(excluding plaintiff’s opposition motion to summary judgment for failure of

timely service); Molina v. Christensen,

44 P.3d 1274, 1277 (Ka. Ct. App. 2001) (affirming trial court’s imposed

sanction for failure to serve); 4B Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1143 (3d

ed. 2002) (consequences of a

failure to serve depend on the nature of the paper involved). 

We exclude Samoa Air’s opposition papers because Samoa Air knew of the

service requirements under the published rules and of the possible penalty for

failing to affirmatively show a genuine issue for trial.  See

Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988).  Thus, in failing to properly serve the

opposition papers, Samoa Air does not affirmatively show any genuine issues for

trial.

 

[9] Besides improper service,

the opposition papers contain other irregularities that could preclude our

consideration.  In attempting to file,

Samoa Air only transmitted a facsimile copy of the memorandum opposing summary

judgment to the Court.  Alone, the

facsimile of the memorandum fails to meet the original signature requirement of

T.C.R.C.P. 11.  See, e.g.,

United States v. Diabetes Treatment Ctr. of Am., 238 F. Supp. 2d 270, 278

(D.D.C. 2002); Ross v. United States, 16 Cl. Ct. 378, 384 (1989).

 

[10-11] Flaws in the affidavit

also incline us to leave it unconsidered. 

See Mailo v. Amerika Samoa Bank, 30 A.S.R.2d 175, 177 (Land &

Titles Div. 1996).  Certain component

parts comprise a proper affidavit: (1) the caption or title; (2) the venue; (3)

the affiant’s signature; and (4) a certificate evidencing the fact that the

affidavit was properly made before a duly authorized officer.  2 Am.

Jur. 2d Affidavits § 12 (1986). 

Indicating where the affidavit was taken, the venue component shows that

the notary public or other authorized official acted within his

jurisdiction.  Id. at § 14.  Affidavits must be signed in the presence of

the notary, as an authorized official, to assure the affiant’s identity.  58 Am.

Jur. Notaries Public § 16 (1986). 

 

[12] The offered Samoa Air

Affidavit lacks three of the four components. 

First, the affidavit gives no indication of venue.  We lack sufficient information to imply where

the unoriginal, facsimile affidavit was sworn. 

Second, the facsimile affidavit lacks the affiant’s original signature.  Third, without original signatures,

indication of venue, or the notary’s authenticating seal, the affidavit lacks

certification, for we have no evidence that the signing occurred in the

notary’s presence.[1]

 

B.  Motion for Summary Judgment

 

There are no genuine issues of material

fact concerning the missing part replacement costs.  Samoa Air rented two aircraft engines from

P&WC, shown by copies of the leases for the two aircraft engines and the

affidavits of Martin Angel (“Angel”), P&WC’s comptroller, and Peter William

Thomson (“Thomson”), P&WC’s chief aircraft inspector.  Under paragraph 8 of the rental agreement,

Samoa Air promised to “indemnify P&WC against all loss or damage to the

Rental Engine.”  Samoa Air returned the

two aircraft engines to P&WC with parts missing.  Thomson’s affidavit and detailed supporting

invoices establish a total repair cost of $91,762.24.  Thomson Aff. at 2, and attached Ex. PT1, Ex.

PT2, Ex. PT3.  Nonetheless, PW&C only

prays for $85,543.35 in missing part damages. 

We grant summary judgment that P&WC is entitled to $85,543.35.

 

P&WC has

met the burden of showing that there are no genuine issues of fact concerning

the overdue rent payments.  Angel’s

affidavit establishes rental charges of $285,973.15 due to P&WC, a total

rent of $319,943.15 minus a security deposit of $33,970.00. Lease documents

supporting Angel’s affidavit demonstrate the rent charges Samoa Air agreed to

pay.  Thus, we also grant summary

judgment on the total rent due.   

 

Order

 

P&WC’s

motion for summary judgment is granted. 

Samoa Air shall pay P&WC $85,543.35 for the missing engine parts,

$285,973.15 for the rental charges, and costs of suit, plus post-judgment at

the rate of 6% per annum on the unpaid balance of the principal amount and

costs of suit until in they are paid in full.

 

It is so ordered.

 

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