OPINIONS

OF THE

TRIAL DIVISION

OF THE

HIGH COURT OF AMERICAN SAMOA

(2012)

AMERICAN SAMOA GOVERNMENT,
Plaintiff

v.

BANK OF HAWAII,
Defendant
___________________________________

High Court of American Samoa
Trial Division

CA No. 29-12

July 11, 2012

[1] A preliminary injunction will only issue after an inter-partes hearing duly noticed, and upon "sufficient grounds," which an applicant establishes by a preponderance of evidence. Sufficient grounds for issuing a preliminary injunction are: (1) there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and (2) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue. A.S.C.A. § 43.1301(j). 

[2] Although a written undertaking with sufficient sureties should issue with a preliminary injunction, one is not needed if an injunction issues on application of ASG. A.S.C.A. § 43.1309.

[3] A court issuing a preliminary injunction must determine and assess: (1) the likelihood of the applicant's success and (2) the relative harm to either side (the applicant’s showing of great or irreparable injury). 

[4] The applicant’s showing of great or irreparable injury turns on a balancing of equities determination, which in turn takes into account: (i.) the harm a plaintiff would suffer without an injunction; (ii.) the harm a defendant would suffer with an injunction; and (iii.) the effect an injunction would have on the public interest. 

[5] The typical preliminary injunction is prohibitory and generally seeks only to maintain the status quo pending a trial on the merits. A mandatory injunction, in contrast, is said to alter the status quo by commanding some positive act. Courts generally do not issue mandatory injunctions and require a higher showing of success on the merits if one were to be given. Where a bank is shown to have improperly frozen a government’s bank account at the behest of a foreign court’s writ of execution, the heightened showing is met. However, this ruling is narrow and the court’s order should not be misconstrued as generally allowing private individuals to seek out mandatory injunctions against another private individual for the return of money—those situations normally require an action for money (legal) damages not injunctive (equitable/coercive) relief. 

[6] Monies are fungible and, when contained in a bank account, intangible property. Intangible property's situs normally lies where the person is domiciled. However, a bank account opened in a separate state or other jurisdiction may be subject to that separate jurisdiction's courts. 

[7] The courts must give full faith and credit to judgments issued by other state, territorial, or federal courts. However, the High Court must give full faith and credit to foreign judgments subject to American Samoa’s Uniform Enforcement of Foreign Judgments Act. A.S.C.A. §§ 43.1701, et seq. 

[8] Each state and territory has its own laws of process for enforcing foreign judgments and a court in one state or territory generally cannot abridge that process by issuing writs to apply to foreign property outside that court’s territorial jurisdiction. Such writs have no legal force in a foreign jurisdiction, only the judgment. 

[9] The procedural posturing of the action is for a mandatory preliminary injunction against a bank (which has locations in multiple jurisdictions) for that bank’s freezing of the local government’s account containing intangible property located in American Samoa under the imprimatur of an as-of-yet unenforced, foreign judgment. The court was satisfied that the government will likely succeed at trial to reverse the bank’s freeze, by being able to prove that the nexus concerning the situs of the intangible property in dispute flourishes in American Samoa, not Hawaii, thereby favoring the issuance of a preliminary injunction against the bank.

[10] If a bank is allowed to freeze the government’s general account whenever a judgment-creditor enforces a judgment in a far-flung jurisdiction possessing a branch of that bank, it could have alarming consequences on the ability of American Samoa's government to function daily—not to mention adding additional cost for defending such lawsuits. Moreover, not only is the local hospital (for which lives may very well be jeopardized) dependent on the contents of the General Fund Account, but so much of this island community relies upon the local government for their livelihood, electricity, etc. that the harm from such perfunctory BOH freezes could be dire. Although equitable relief should not normally issue for the release of legal damages, when dealing with the government bank account for government workers and services in a community utterly dependent upon the same, provisional injunctive relief can be proper. Am. Samoa Gov’t v. Bank of Hawaii, CA No. 29-12, slip op. at 8 (Trial Div. July 11, 2012) (order granting motion for preliminary injunctive relief).

Before KRUSE, Chief Justice, LOGOAI, Chief Associate Judge, and FA`AMAUSILI, Associate Judge.

	Counsel:		For Plaintiff, Michael L. Iosua, Assistant Attorney General
		For Defendant, Jennifer Joneson

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTIVE RELIEF

BACKGROUND

On May 1, 2012, Marisco, Ltd. ("Marisco") obtained a judgment against the American Samoa Government ("ASG") for, from what we can glean is, a breach of contract claim for the repair of certain barges. The United States District Court for the District of Hawaii issued the judgment; ASG did not appeal the same. In Federal District Court, money judgments are enforced by a writ of execution. [**2**] Fed. R. Civ. P. 69. Marisco sought such a writ: on June 13, 2012, the United States District Court for the District of Hawaii issued a writ of execution. Marisco, Ltd. v. Am. Samoa Gov't, Civil No. CV 10-00137 LEK BMK (writ of execution).

The U.S. Marshal's office for the U.S. District Court of Hawaii served the writ upon the main offices of the Bank of Hawaii (BOH) in Honolulu, Hawaii. On June 20, 2012, BOH treated the writ of execution as a writ of garnishment under Hawaiian state law and froze a portion of ASG's General Fund Account  the account bears appropriated ASG monies and federal grant monies for government payroll and other such government expenditures. The amount frozen was $988,980.

On June 26, 2012, ASG brought an action against Bank of Hawaii for provisional and permanent injunctive relief to enjoin BOH's continued withholding of its funds. On July 5, 2012, ASG's application for preliminary injunction came on for expedited hearing, the parties appearing through counsel. 

DISCUSSION

[1, 2] In these matters, we are guided by statute. A preliminary injunction will only issue after an inter-partes hearing duly noticed, A.S.C.A. § 43.1301(g), and upon "sufficient grounds," A.S.C.A. § 43.1301(j), which an applicant establishes by a preponderance of evidence. Samoa Aviation, Inc. v. 28 A.S.R.2d 101, 102 (Trial Div. 1995). Sufficient grounds for issuing a preliminary injunction are:

(1) there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and

(2) great or irreparable injury will result to the [**3**] applicant before a full and final trial can be fairly held on whether a permanent injunction should issue.
A.S.C.A. § 43.1301(j).

[3, 4] A court issuing a preliminary injunction must therefore determine and assess: (1) the likelihood of the applicant's success and (2) the relative harm to either side. The first consideration is self-explanatory, while the second, great or irreparable injury, requires a balancing of the equities. A balancing of equities determination takes into account: (i.) the harm a plaintiff would suffer without an injunction; (ii.) the harm a defendant would suffer with an injunction; and (iii.) the effect an injunction would have on the public interest. See, Alamoana & Yu-Tong Co. v. Am. Samoa Gov't, 4 A.S.R.3d 3, 6 (App. Div. 2000) (evaluating a stay of injunction on appeal, but likening the stay's factors test to the test used in a petition for preliminary injunction); see also Talauega v. Mulipola, 22 A.S.R.2d 7, 9 (Land & Titles Div. 1992) (balancing the "equities" by noting the harm a plaintiff and defendant would suffer if an injunction did or did not issue); Gurr v. Scratch, 22 A.S.R.2d 103, 105 (Trial Div. 1992) (noting "an element of the public interest" existing in preliminary injunction determinations). Cf. Univ. of Texas v. Camenisch, 451 U.S. 390, 392 (1981).

[5] We initially note both subject matter, A.S.C.A. § 3.0208(a), and in personam jurisdiction, BOH has two on-island branches. [**4**] Lastly, we note that the four factors test for a preliminary injunction favor the issuing of a preliminary injunction here. 

A. The Likelihood of Success

This action presents a peculiar situation: a bank is attempting to comply with the enforcement of a foreign judgment in a foreign jurisdiction by accessing a bank account of a government located within this Court's territorial jurisdiction. We are not concerned with whether that foreign judgment was legally rendered, nor whether such a judgment could legally be enforced in this jurisdiction. We are concerned with the very limited issue of whether a bank can freeze intangible property maintained in this Territory from a foreign jurisdiction. We are persuaded that the weight of the authorities tilts in favor of ASG's contention that such a bank cannot.

i. The Situs of Intangible Property

[6] Monies are fungible and, when contained in a bank account, intangible property. See Dan B. Dobbs, Law of Remedies § 6.1(1) (2d [**5**] ed. 1993) (citing Williams Mgmt. Enters., Inc. v. Buonauro, 489 So.2d 160, 162 (Fla.App. 1986)). Intangible property's situs normally lies where the person is domiciled. See Baldwin v. Missouri, 281 U.S. 586, 592-93 (1930). We note, however, that a bank account opened in a separate state or other jurisdiction may be subject to that separate jurisdiction's courts. Shaffer v. Heitner, 433 U.S. 186, 218 (1977) ("If I visit another State, or acquire real estate or open a bank account in it, I knowingly assume some risk that the State will exercise its power over my property or my person while there.").

Here, the evidence indicates ASG opened its General Fund Account in American Samoa; the account is maintained with the Utulei, American Samoa branch of BOH. BOH's having other branches, such as Guam, from which ASG could withdraw funds does not necessarily subject ASG to that branch's foreign jurisdiction for judgment-creditor purposes because ASG opened its account in [**6**] American Samoa and is a government "domiciled" in American Samoa.

[7, 8] We are required to give full faith and credit to judgments issued by other state, territorial, or federal courts. U.S. Const. art. IV, § 1; 28 U.S.C. § 1738 (2012). However, we must give full faith and credit to foreign judgments subject to our Uniform Enforcement of Foreign Judgments Act. See, A.S.C.A. §§ 43.1701, et seq. Indeed, if we issue a judgment in favor of a judgment-creditor, this Court cannot also issue a writ of execution ordering a sheriff of Oregon to seize and/or sell real, tangible, or intangible property of a judgment-debtor located in Oregon. To the contrary, a judgment-creditor travels to the state of Oregon and files an action to enforce our judgment against the judgment-debtor's Oregon property, abiding by Oregon's laws of process.

Here, the writ of execution/garnishment the U.S. District Court of Hawaii issued attempts to attach itself to ASG's General Fund Account. As we have stated, that account appears not to be located in Hawaii and is therefore not subject to attachment there.

[9] Again, we are not concerned with whether or not Marisco can enforce its U.S. District Court judgment in this jurisdiction. The procedural posturing of this action is for a mandatory [**7**] preliminary injunction against BOH for BOH's freezing of an account containing intangible property located in American Samoa under the imprimatur of an as-of-yet unenforced, foreign judgment. We are, for purposes hereof, satisfied that ASG will likely succeed at trial at proving such a point—that the nexus concerning the situs of this intangible property flourishes in American Samoa, not Hawaii, thereby favoring the issuance of ASG's preliminary injunction against BOH.

B. Balancing the Equities

i. Harm to Plaintiff

[10] ASG is a territorial government of the United States. See 48 U.S.C. 1662a (2012) ("Amendments of, or modifications to, the constitution of American Samoa, as approved by the Secretary of the Interior pursuant to Executive Order 10264 as in effect January 1, 1983, maybe made only by Act of Congress.") ASG's General Fund Account consists of appropriations and funds set aside for management of the entire government of American Samoa. Not only is the nearly one million dollars a sizeable amount for this government, the idea that judgment-creditors can avoid this Territory's laws concerning judgment-enforcement, liens, attachments, garnishment, etc. would cause great harm to ASG and [**8**] impact the territory's local commerce. A.S.C.A. §§ 43.1701, et seq.; A.S.C.A. § 43.1803(b). If BOH is allowed to freeze ASG's General Fund Account whenever a judgment-creditor enforces a judgment in a far-flung jurisdiction possessing a BOH branch, it could have alarming consequences on the ability of American Samoa's government to function daily—not to mention adding additional cost for defending such lawsuits. Moreover, not only is the local hospital (for which lives may very well be jeopardized) dependent on the contents of the General Fund Account, but so much of this island community relies upon the local government for their livelihood, electricity, etc. that the harm from such perfunctory BOH freezes could be dire.

[10] Although equitable relief should not normally issue for the release of legal damages, when dealing with the government bank account for government workers and services in a community utterly dependent upon the same, we are persuaded that provisional injunctive relief can be, as here, proper.

ii. Harm to Defendant

BOH has the unenviable position of middleman in a jurisdictional tug-of-war concerning the reach of two separate courts. BOH's harm, however, is limited: an injunction would only have BOH releasing ASG's funds back into ASG's account--any [**9**] court sanction BOH could suffer in Hawaii it could quite as easily suffer here. Although BOH's plight evokes sympathy, BOH's claimed exposure to potential harm and conflicts of laws that arise is, after all, a consequence of banking in multiple jurisdictions. Indeed, the issue of intangible property and such property's situs is a legal subject a bank should be all too familiar with; BOH's actions here, perfunctorily freezing a government account, seems less than justified.

iii. Public Interest

As mentioned supra, many of the denizens of American Samoa rely on ASG for their livelihood. The public's interest weighs in favor of issuing an injunction against BOH.

Indeed, all the equities balance in favor of issuing the injunction against BOH.

ORDER

Again, we are not ruling that Marisco is unable to satisfy its federal court judgment--Marisco is not a party in this action. We are ruling, at a preliminary stage, that ASG has proven by a preponderance of the evidence that BOH likely cannot freeze ASG's General Fund Account because that account contains intangible property seemingly located in this Territory and not the State of Hawaii. Consequently, ASG's application for a preliminary injunction will be granted:

BOH shall restore the sum of $988,980, frozen on June 20, 2012, back into ASG's General Fund Account.

It is so ordered.