In her 11-page order on Monday, the judge also said that she cannot usurp the jury’s role as fact-finder which is why she denied Double A Corp.’s motion for summary judgment against fire inspector Anthony Babauta.
Double A, a company that specializes in fire sprinkler and suppression system, sued Babauta and former fire chief Claudio K. Norita for not issuing a permit for a sprinkler system that the company was hired to install at a business establishment.
Double A sued Norita and Babauta on March 27, 2019 for deprivation of property without due process, and deprivation of liberty without due process and demanded a jury trial.
In her order, Judge Manglona mentioned “Akira Kurosawa’s 1950 film ‘Rashomon’ [which] famously reenacts four competing versions of the same scene — each time from a different narrator’s point of view. In the end, with every character recounting the incident in the most self-serving light possible, the audience is left to wonder what really happened.”
Seventy years after “Rashomon” first premiered, the judge said, “the parties to this lawsuit prove how life imitates art.”
“The breadth of their finger-pointing, contradictions, and denial is one for the ages,” she added.
According to Judge Manglona, “There are only two ways to resolve the issues in this case: either (1) a trial, or (2) a very patient mediator.”
The judge noted that all commercial buildings in the CNMI require fire safety systems, and one duty of the fire department is to issue permits to the contractors hired to install them.
“As the man in charge, Norita circulated a memo declaring himself Fire Marshal and therefore the only person with authority to grant these permits,” the judge stated.
“At the same time, Norita had no idea how to review permit applications, and he did not endeavor to learn.
“Instead, Norita completely delegated the job of reviewing applications to his co-defendant, Anthony Babauta, a fire inspector at the department.
“The two worked out a system where Babauta ‘recommended’ what action to take on each application, and Norita rubber-stamped those recommendations without any independent review.
“Theoretically, Babauta had zero discretion when deciding whether to recommend approving a permit. Anyone who submits the required documents, fills out a standard form, and pays a $150 fee is supposed to receive one automatically.
“Babauta’s only job as the reviewing officer was to check that the applicant submitted everything required.
“Theory, of course, does not always conform with reality; and in this case, someone gave the application procedure a life of its own.”
The judge said Double A’s “unsuccessful toil to obtain a permit illustrates just how arbitrary the procedure became. In November 2017 Double A, as a local construction contractor, accepted a $410,150 job to install fire sprinklers in a new building complex owned by Proper Grand CNMI LLC. Because the contract was contingent on Double A receiving a permit from the fire department, its representatives immediately set out to obtain one. But three months and many visits to the fire department later, the permit was still nowhere in sight. Not only had the fire department apparently refused the issue a permit to Double A, it also refused to explain why or acknowledge anything in writing. As a result, Double A eventually lost out on the contract, much to its ire.”
The judge has held that what happened was a violation of Double A’s due process rights.
She said the “real mystery of this case has always been: who at the Fire Department was responsible? Each party tells it differently. On the one hand, Double A blames both Babauta and Norita. On the other hand, Babauta and Norita each blames the other. Adding to the intrigue, there is witness testimony backing parts of every story; although, notably, most witnesses were not exactly detached from the drama. Double A’s only witnesses are its two representatives who applied for the permit: project manager Antonie Santos and business consultant Thomas Salas. Similarly, Norita’s main witness is himself, and likewise for Babauta.”
Thus, the judge added, “the inconsistencies obviously stem from the fact that some witnesses are not being entirely truthful.”
Double A, who is represented by attorney Joseph E. Horey, has asked for a partial summary judgment on the sole issue of Babauta’s liability.
As for Norita, Double A said it “leaves the question of liability and what damages to award for trial.”
Norita and Babauta, who are represented by the CNMI Office of the Attorney General, have asked the federal court to issue an order in their favor and dismiss the lawsuit against. The defendants have “qualified immunity,” the AG’s office said.
Double A, in its lawsuit, wants the court to award it damages, including lost income and incidental and consequential damages.
