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Last updateThu, 24 Oct 2019 12am







    Wednesday, October 23, 2019-2:19:46A.M.






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Vincent Norita’s lawyer asks court to deny NMI government’s motion to dismiss lawsuit

THE lawyer of a man who sued the Department of Public Safety and its police officers for using excessive force has urged the federal court to deny the government’s “confused” motion to dismiss the lawsuit of Vincent San Nicolas Norita.

Attorney Rene C. Holmes represents Norita in his lawsuit against DPS, DPS Commissioner Robert A. Guerrero in his official capacity, DPS officers Stanley Patris and Carlo Evangelista in their personal and official capacities, and unnamed defendants for violations of constitutional rights, for use of excessive and unreasonable force, assault and battery resulting in serious bodily injury.

Norita was involved in a high-speed pursuit with the police in Dec. 2016. A video-recording of police officers beating Norita and his passenger Joe E. Ada was posted on social media and went viral.

Norita later pled guilty to traffic charges and was sentenced in May 2017 by Superior Court Judge Joseph N. Camacho  to nine years of imprisonment, to be served day for day without probation.

In opposing the government’s motion to dismiss the CNMI government and DPS from Norita’s lawsuit due to lack of subject-matter jurisdiction, Holmes said:

“Defendants appear to have missed a step by combining a request to substitute the Commonwealth for employee defendants with a motion to dismiss when those issues should be more properly addressed separately.

“The confusion about whom defendants seek to substitute the Commonwealth for and in which capacity would be clear if they filed a motion in writing which states the grounds for the substitution with particularity and the relief sought as required by Rule 7(b)(1).”

Holmes said clarifying the substitution issue prior to including that as a basis for dismissal of the claims would simplify the matter considerably.

Without that clarity, she added, “Mr. Norita has been forced to argue the many possibilities which can be read into their notice of substitution combined with the motion to dismiss.”

Holmes asked the federal court to deny the motion to dismiss as premature and to urge the defendants to properly file a motion for substitution which clearly articulates their position.

Assistant Attorney General Hessel E. Yntema has asked the District Court for the NMI to dismiss Norita’s lawsuit for lack of subject jurisdiction.

Yntema said “the CNMI government enjoys sovereign immunity against suits based on Commonwealth law that are brought in federal court.”

He said the Commonwealth Employees Liability Reform and Tort Compensation Act of 2006 or CELRTCA “provides Commonwealth employees with absolute immunity for negligent or wrongful acts undertaken within the scope of employment.”

“Under CELRTCA,” he added, “employee immunity attaches — and automatic substitution of the Commonwealth as defendant in the employee’s place is triggered — when the attorney general files with the court a certificate that the defendant employee was acting within the scope of his/her office or employment at the time of the incident out of which the claim arose.”

But Holmes said the defendants’ “simplified assertion that after certification immunity attaches in whatever capacity an employee is sued is not accurate.”

She said the defendants did not certify the scope of employment for DPS Commissioner Guerrero, despite the fact that he is facing Commonwealth tort claims in his official capacity.

The blanket statement that “all defendants that have claims against them based upon Commonwealth tort law have been substituted” cannot include Guerrero because the defendants did not submit certification for him, Holmes added.

She said the substitution of an employee by the Commonwealth pursuant to 7 CMC § 2210 is for the claims against them only in their personal capacity, not in their official capacity.

“In the same motion to dismiss within which defendants assert substitution by Commonwealth for the employees, defendants seek to invoke sovereign immunity,” Holmes said.

“In essentially the same pen stroke, defendants attempt to shelter their employees and protect themselves by issuing a self-serving certification of scope of employment and dismiss the claims altogether,” she added.