THE Superior Court on Tuesday denied the Commonwealth Casino Commission’s motion for leave to file a surreply, saying it will instead take judicial notice of a statement made by then-Imperial Pacific International Chief Executive Officer Ray Yumul during a meeting with casino commissioners on Dec. 18, 2021.
A surreply is defined as “an additional reply to a motion filed after the motion has already been fully briefed.”
At issue is the following statement made by Yumul:
“Covid-19 has dealt the CNMI its worst financial crisis in over a decade. International travel is closed. Most of our large hotels are now closed…. All the indicators of a shattered tourism industry [are] clearly seen all around [.] And IPI is not immune to that economic hardship facing the CNMI. The IPI had to close its doors to comply with the Honorable Ralph [Deleon Guerrero Torres’s] Executive Order [which] stretched well into 2020. And at that point, IPI’s revenue fell to zero.”
Chaired by Edward C. Deleon Guerrero, the casino commission filed an instant motion on Jan. 6, 2022 in response to Yumul’s argument in support of judicial review.
According to the casino commission, Yumul’s statement “is improper evidence that should not be used to determine whether [IPI] the petitioner, carried its burden of establishing the elements of the affirmative defense of force majeure.”
For its part, IPI said the court should deny the instant motion as an improper effort by the casino commission to get in the “last word” in this case involving the suspension of IPI’s exclusive casino license.
Associate Judge Wesley Bogdan, in his order, stated: “There is no absolute right to file a surreply and courts generally view motions for leave to file a surreply with ‘disfavor.’ ”
He said the court retains jurisdiction to consider arguments raised for the first time in a reply “if justice and fairness require their consideration.”
However, he added, the “standard for granting a leave to file a surreply is whether the party making the motion would be unable to contest matters presented to the court for the first time in the opposing party’s reply.”
The judge said Yumul’s statement and the issues raised by the casino commission “do not, in this court’s opinion, rise to the level necessary to exercise its discretion to allow a surreply in this matter as presented. As such, and having reviewed the parties’ memoranda and with a clear understanding of their asserted positions, this court declines to resolve the intricacies of the argument of whether petitioner improperly raised a new issue in its reply brief, or, instead simply responded to arguments raised by the casino commission in its opposition.”
The judge added, “The court’s resources are better spent continuing its review of the voluminous record contained in this petition for judicial review. Further, given the fact that currently under consideration is IPI’s petition for judicial review which contains hundreds of pages of briefings and excerpts of the designated record and other exhibits which contain the transcript of the February 14, 2021 casino commission hearing in which the statement — and others related to Covid-19 — were made, this court shall take judicial notice of the existence of Mr. Yumul’s statement.”
However, the judge added, “this court declines to take notice of the accuracy of the factual assertions contained within the statement at issue — except for the point that the CNMI, like so much of the rest of the world, has been greatly impacted economically and otherwise by the Covid-19 epidemic and the CNMI government did issue various executive orders in response and to protect public health and safety.”
