Commonwealth Casino Commission v. Imperial Pacific International
CourtSupreme Court of The Commonwealth of The Northern Mariana Islands
Date FiledDecember 2, 2022
Docket2022-SCC-0006-CIV
JudgeCastro, Manglona, Inos
StatusPublished
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Full Opinion
E-FILED
CNMI SUPREME COURT
E-filed: Aug 13 2024 09:57AM
Clerk Review: Aug 13 2024 09:58AM
Filing ID: 74026455
Case No.: ADM-2024
Judy Aldan
IN THE
Supreme Court
OF THE
Commonwealth of the Northern Mariana Islands
IN RE DECISION OF THE COMMONWEALTH CASINO COMMISSION APPEAL,
Commission Order No. 2021-002;
Final Orders for Enforcement Action 20-001 and 20-003.
COMMONWEALTH CASINO COMMISSION,
Respondent-Appellee,
v.
IMPERIAL PACIFIC INTERNATIONAL (CNMI), LLC,
Petitioner-Appellant.
Supreme Court No. 2022-SCC-0006-CIV
ORDER DENYING MOTION TO DISMISS
Cite as: 2022 MP 8
Decided December 2, 2022
CHIEF JUSTICE ALEXANDRO C. CASTRO
ASSOCIATE JUSTICE JOHN A. MANGLOÑA
ASSOCIATE JUSTICE PERRY B. INOS
Superior Court Civil Action No. 21-0173-CV
Associate Judge Wesley M. Bogdan, Presiding
CCC v. IPI, 2022 MP 8
PER CURIAM:
¶1 Respondent-Appellee Commonwealth Casino Commission (“CCC”)
seeks to dismiss Imperial Pacific International (“IPI”)’s appeal because IPI filed
its docketing statement eight days late. For the following reasons, we DENY the
Motion to Dismiss.
I. FACTS AND PROCEDURAL HISTORY
¶2 IPI filed this appeal on April 11, 2022. On April 25, the Clerk of the
Supreme Court (“Clerk”) notified the parties that the appeal has been transmitted
and docketed in the Supreme Court. NMI Supreme Court Rule 3-1 requires
appellants to file a docketing statement within 15 days of this notice. IPI did not
file its docketing statement within the required time or request an extension.
¶3 IPI’s counsel was unaware that the appeal had been docketed. On May 11,
the day after the docketing statement was due, he called the Supreme Court to
inquire about the appeal status, but was not able to reach someone. He called
several different numbers but made no further attempts to determine whether the
appeal had been docketed and did not use his File & ServeXpress account to
check.
¶4 On May 16, the briefing schedule was issued. On May 18, CCC moved to
dismiss the appeal based on NMI SUP. CT. R. 3-1(a)(5)(A), which reads “Failure
to file a docketing statement is grounds for dismissal or other sanctions as the
Court deems appropriate.” Only after learning of this motion did IPI’s counsel
thoroughly check his emails and learn that the appeal had been docketed. On the
same day, May 18, IPI filed its docketing statement.
II. DISCUSSION
¶5 IPI argues we should not dismiss the appeal because its late filing was
excusable neglect. We discussed excusable neglect in Owens v. Commonwealth
Health Ctr., 2011 MP 6, which concerned a motion to file a late brief. NMI
Supreme Court Rule 31-1(b) says “A motion to file a late brief is highly
disfavored where a motion for a discretionary extension could have been filed
but was not, or was filed and denied.” We interpreted the “highly disfavored”
language by adopting the excusable neglect standard from NMI Supreme Court
Rule 4(a) and held that showing excusable neglect requires unique or
extraordinary circumstances. Owens v. Commonwealth Health Ctr., 2011 MP 6
¶ 16.
¶6 IPI does not claim that any unique or extraordinary circumstances exist
here and instead asks that we apply the more flexible excusable neglect standard
articulated by the United States Supreme Court in Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993). There, the Court adopted a
multi-factor balancing test. Id. at 385. 1 The Commonwealth argues that Owens’s
1
Pioneer involved a bankruptcy rule, but the Supreme Court made clear that the same
test applies to various contexts where the phrase excusable neglect appears. See Pincay
v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (en banc).
CCC v. IPI, 2022 MP 8
strict approach is the applicable one and that the requirement for a docketing
statement is a mandatory claim-processing rule.
¶7 Despite the parties’ framing of this issue, analyzing whether IPI’s error
constitutes excusable neglect is unnecessary to resolving this motion. Owens
does not stand for the proposition that any late filing must be determined under
the excusable neglect standard. While Owens discussed how to interpret the
“highly disfavored” language in NMI Supreme Court Rule 31-1(b), NMI
Supreme Court Rule 3-1(a)(4)(A) provides that extensions of time to file
docketing statements are only “disfavored,” a lesser requirement which
distinguishes this case from Owens.
¶8 The Commonwealth’s claim-processing argument is also not dispositive.
Mandatory claim-processing rules “seek to promote the orderly progress of
litigation by requiring that the parties take certain procedural steps at certain
specified times.” Henderson v. Shinseki, 562 U.S. 429, 435 (2011). They are not
jurisdictional requirements, but must be enforced if invoked. Norita v.
Commonwealth, 2020 MP 12 ¶¶ 9, 12. The requirement to file a docketing
statement is a mandatory claim-processing rule. See Vergara v. City of Chicago,
939 F.3d 882, 886 (7th Cir. 2019).
¶9 However, failure to file a docketing statement does not automatically
result in dismissal. NMI Supreme Court Rule 3-1(a)(5)(A) reads “[f]ailure to file
a docketing statement is grounds for dismissal or other sanctions as the Court
deems appropriate.” The rule gives the Court substantial latitude in how to
respond to late docketing statements. Dismissal, lesser sanctions, or even no
sanctions are all possible options.
¶ 10 In deciding what is appropriate here, we make the following observations.
First, the delay was eight days. This is not very long, and courts have refused to
dismiss cases for even lengthier delays. See Gorostieta v. Parkinson, 17 P.3d
1110, 1116 (Utah 2000) (refusing to dismiss when the docketing statement was
13 days late); Tekansky v. Pearson, 635 N.E.2d 605, 608 (Ill. App. Ct. 1994)
(refusing to dismiss when the docketing statement was 14 days late).
¶ 11 Second, after CCC filed its Motion to Dismiss, thus alerting IPI’s counsel
to his error, he filed the docketing statement that same day. CCC does not claim
that he acted in bad faith. The shortcoming was serious, but it does not appear to
be a deliberate attempt to manipulate the calendar.
¶ 12 Third, the delay did not prejudice CCC, nor has CCC even claimed to have
suffered any harm. The purpose of a docketing statement is to “[aid] the Court in
identifying potential jurisdictional defects, opportunities for simplification or
settlement of issues, and matters warranting expedited treatment.” NMI SUP. CT.
R. 3-1(a)(1). While a docketing statement is helpful, it is not as key to
understanding the other side’s position as a brief, and so its absence is unlikely
to harm the opposing party. Indeed, the Supreme Court of Wyoming has stated
“The late filing of a docketing statement has never been sufficient ground to
justify the dismissal of the appeal in this court.” In re Estate of Campbell, 673
CCC v. IPI, 2022 MP 8
P.2d 645, 649 (Wyo. 1983); see also Radici v. Associated Ins. Cos., 217 F.3d
737, 746 (9th Cir. 2000) (refusing to dismiss because of a late docketing
statement when the other side conceded that the delay caused no prejudice); Rush
v. Rush, 163 So. 3d 362, 368 (Ala. Civ. App. 2014) (refusing to dismiss despite
no docketing statement at all being filed since there was no evidence or even
allegations of prejudice). 2
¶ 13 Because the delay was not extensive, did not harm CCC, and seems to
have not been caused by an attempt to gain some sort of advantage, we conclude
that dismissal is not appropriate here.
¶ 14 However, we cannot ignore the improper oversight which resulted in the
delay. The Ninth Circuit has found monetary sanctions to be warranted in cases
involving late docketing statements. See Faras v. Hodel, 845 F.2d 202, 204–05
(9th Cir. 1988) (upholding $250 sanction for late docketing statement); Radici,
217 F.3d at 746 (ordering $500 sanction for filing a late docketing statement
despite repeated court orders). Taking into account the fact that we did not warn
IPI that its docketing statement was late and that the issue was quickly resolved
after learning of it, we deem appropriate lesser sanctions of $150.
III. CONCLUSION
¶ 15 For the foregoing reasons, the Motion to Dismiss is DENIED. IPI’s counsel
is sanctioned $150. The amount is payable to the Commonwealth Treasury, with
a receipt given to the Supreme Court Clerk of Court, within thirty days from the
issuance of this Order.
SO ORDERED this 2nd day of December, 2022.
/s/
ALEXANDRO C. CASTRO
Chief Justice
/s/
JOHN A. MANGLOÑA
Associate Justice
/s/
PERRY B. INOS
Associate Justice
2
But cf. Stewart v. Mortenson, No. 10-21-00084-CV, 2021 Tex. App. LEXIS 4249, at
*1 (Tex. Ct. App. May 28, 2021) (dismissing an appeal when no docketing statement
was filed despite the court warning appellants of the need for one). Texas courts have
regularly dismissed appeals for a missing docketing statement after giving notice to the
appellants and a chance to correct their error.
CCC v. IPI, 2022 MP 8
COUNSEL
Joey P. San Nicolas, Saipan, MP for Appellant.
Keisha Blaise, Assistant Attorney General, Saipan, MP for Appellee.