SLIP OPINIONS
 
OF THE
 
TRIAL DIVISION
 
OF THE
 
HIGH COURT OF AMERICAN SAMOA
 
(2014)

JOEL MAGALASIN,
Plaintiff,
 
v.
 
F/V SAN NANUMEA, her hull, engines, tackle, apparel, furniture, equipment, skiffs, nets, boats, and appurtenances, IMO Official Number/VIN 8102866,
Defendant In Rem,

and SANFORD LIMITED, a foreign corporation, and DOES 1 through 20, inclusive,
Defendant In Personam.
 
High Court of American Samoa
Trial Division
 
CA No. 23-14
 
November 30, 2014

[1] A motion to dismiss pursuant to T.C.R.C.P. 12(b)(6) will be treated as a summary judgment motion when evidence extrinsic to the complaint is presented to and considered by the court. 
 
[2] Conversion of a T.C.R.C.P. 12(b)(6) motion into a motion for summary judgment lies squarely with the court‘s discretion. 
 
[3] When a court converts a T.C.R.C.P. 12(b)(6) motion into a motion for summary judgment under T.C.R.C.P. 56, the court must make the parties aware that the court is considering a motion for summary judgment by giving the parties 10 days notice of the conversion. 
 
[4] Notice that the court will look beyond the pleadings need not be explicit because a party who submits extrinsic materials in support of or opposition to a 12(b)(6) motion is considered to be on notice that the judge may treat the motion as a motion for summary judgment. 
 
[5] When both parties submitted extrinsic evidence for the court to consider in the form of affidavits, declarations, and exhibits, both parties were properly on notice that the 12(b)(6) motion would be treated as a motion for summary judgment. 
 
[6] Summary judgment is appropriate when the pleadings and supporting papers show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 
 
[7] Typically, in ruling on a summary judgment motion, the court must view all pleadings and supporting papers in the light most favorable to the non-moving party, treat the non-moving party's evidence as true, and draw from such evidence the inferences most favorable to the non-moving party. 
 
[8] In matters of choice of law or forum non conveniens determinations, a trial court may have to resolve disputed factual issues prior to a trial on the merits. 
 
[9] While it may seem inapt to allow pretrial findings of disputed facts in a converted summary judgment motion, determining proper forum after the trial is already underway is injudicious. The same reasoning applies to a choice of law determination. 
 
[10] The court may part from the summary judgment standard of viewing all facts in the light most favorable to the non-moving party, but only to the extent necessary, so as to resolve disputed factual issues underlying choice of law and forum non conveniens determinations. 
 
[11] Choice of law determinations for foreign seamen suing under the Jones Act are to be made by weighing the factors: the place of the wrongful act; the law of the flag; the allegiance or domicile of the injured seaman; the allegiance of the defendant shipowner; the place where the employment contract was made; the inaccessibility of a foreign forum; the law of the forum; and the shipowner's base of operations. 
 
[12] The Supreme Court has stated that the choice of law determination factors are not exhaustive and should be examined in the overall context of the case to determine whether, taken together, the factors rise to the level of "substantial contacts" between the United States and the defendant. 
 
[13] When a wage claim is involved, 46 U.S.C. § 10313(i) notes that the courts are available to the seaman for enforcement of wage claims once a vessel is arrested in a harbor of the United States, thereby providing for High Court jurisdiction. 
 
[14] The Court declined to determine whether the choice of law determination factors rose to the level of substantial contacts when Plaintiff's wage claim, included in the initial complaint, explicitly provided for jurisdiction in the High Court. 
 
[15] When Plaintiff alleged a contractual claim for maintenance, cure, and wages, began work on Defendants‘ vessel in Pago Pago Harbor, and the vessel was later arrested in Pago Pago Harbor, Plaintiff had a right to sue under the Jones Act in a U.S. court and the High Court had proper jurisdiction for the action. 
 
[16] Under the doctrine of forum non conveniens, when an alternative forum has jurisdiction to hear a case and when a trial in the chosen forum would burden the defendant, the court may, in the exercise of its discretion, dismiss the case. 
 
[17] The court should balance various public and private interests in its analysis of forum non conveniens , including relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses and cost of obtaining attendance of unwilling witnesses, the possibility of viewing subject premises, and all other factors that render trial of the case expeditious and inexpensive. 
 
[18] The Court declined to apply forum non conveniens even though Plaintiff resided in the Philippines, Defendants‘ corporate headquarters was in New Zealand, and the witnesses were scattered seamen because it held that splitting four cases arising out of the same incident in two separate forums would not benefit Defendants, witnesses, or the judicial systems. 
 
Before KRUSE, Chief Justice; LOGOAI, Chief Associate Judge; and FA`AMAUSILI, Associate Judge. 
 
Counsel: For Plaintiff, Marcellus T. Uiagalelei, William L. Banning, admitted Pro Hac Vice 
For Defendants, Roy J.D. Hall, Jr., Sterling J. Stires, admitted Pro Hac Vice 
 
ORDER DENYING DEFENDANTS‘ MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
 
Background
 
On August 29, 2011, Plaintiff Joel Magalasin filed his Complaint against Defendants F/V San Nanumea, Sanford Limited, and Does 1 through 20 for personal injury damages and unpaid wages under the Jones Act, 46 U.S.C. § 30104, 46 U.S.C. §§ 31301 et seq., and the American Samoa Code Annotated section 3.0208(a)(3). 
 
According to Plaintiff's Complaint, he was injured in an accident that occurred on international waters while employed as a seaman aboard the vessel San Nanumea, which is owned and operated by Defendant Sanford Limited ("Sanford"). The San Nanumea is a New Zealand flag vessel. Plaintiff is a citizen of the Philippines, but was admitted to American Samoa on a temporary basis and joined Sanford's vessel in Pago Pago Harbor, where the vessel frequently stops to off-load at the canneries. 
 
On May 4, 2012, Sanford filed a motion to dismiss for failure to state a claim upon which relief can be granted, arguing that the present action is governed by foreign law and therefore Plaintiff cannot establish he is entitled to relief under the Jones Act or U.S. maritime law and dismissal is proper under the doctrine of forum non conveniens. On September 13, 2013, Plaintiff filed a memorandum of points and authorities in opposition to Sanford's motion to dismiss. Both parties supplemented their filings with affidavits and declarations as extrinsic materials. 
 
Standard of Review
 
[1-4] A motion to dismiss pursuant to T.C.R.C.P. 12(b)(6) will be treated as a summary judgment motion when evidence extrinsic to the complaint is presented to and considered by the court. T.C.R.C.P. 12(b)(6), 56. Samoana Fellowship, Inc. v. American Samoa Power Authority, 24 A.S.R.2d 71, 72 (Trial Div. 1993). Conversion of a 12(b)(6) motion into a motion for summary judgment lies squarely with the court. ASG Employees Fed. Credit Union v. Gurr, 26 A.S.R.2d 87 (Trial Div. 1994). When a court converts a 12(b)(6) motion into a motion for summary judgment under T.C.R.C.P. 56, the court must make the parties aware that the court is considering a motion for summary judgment by giving the parties 10 days notice of the conversion. T.C.R.C.P. 12(b), 56. McKenzie v. Le`iato, 27 A.S.R.2d 63 (Trial Div. 1994). Notice that the court will look beyond the pleadings need not be explicit. See In re Rothery, 143 F.3d 546, 549 (9th Cir. 1998). A party who submits extrinsic materials in support of or opposition to a 12(b)(6) motion is on notice that the judge may treat the motion as a motion for summary judgment. Id. ("A party is `fairly appraised' that the court will in fact be deciding a summary judgment motion if that party submits matters outside the pleadings to the judge and invites consideration of them.") 
 
[5] The court is treating the 12(b)(6) motion as a motion for summary judgment. Both Sanford in the Motion to Dismiss and Plaintiff in his Opposition to Sanford's Motion to Dismiss submitted extrinsic evidence for the court to consider in the form of affidavits, declarations, and exhibits. Both parties are therefore properly on notice that the 12(b)(6) motion will be treated as a motion for summary judgment. 
 
[6-7] Summary judgment is appropriate when the pleadings and supporting papers show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. T.C.R.C.P. 56; Etimani v. Samoa Packing Co., 19 A.S.R.2d 1 (Trial Div. 1991). Typically, in ruling on a summary judgment motion, the court must view all pleadings and supporting papers in the light most favorable to the non-moving party, treat the non-moving party's evidence as true, and draw from such evidence the inferences most favorable to the non-moving party. Id. 
 
[8-10] In matters of choice of law or forum non conveniens determinations, however, a trial court may have to resolve disputed factual issues prior to a trial on the merits. Villar v. Crowley Maritime Corp., 782 F.2d 1478, 1479 (9th Cir. Cal. 1986). While it may seem inapt to allow pretrial findings of disputed facts in a converted summary judgment motion, the Ninth Circuit has found the alternative--determining proper forum after the trial is already underway--to be "completely unacceptable." Id. The same reasoning applies to a choice of law determination. Therefore, to only the extent necessary, the court may part from the summary judgment standard of viewing all facts in the light most favorable to the non-moving party so as to resolve disputed factual issues underlying the choice of law and forum non conveniens determinations. See id. 
 
Discussion
 
As will be discussed below, we find Plaintiff a Jones Act seaman and U.S. maritime law applies to his personal injury claims. We further decline to apply the doctrine of forum non conveniens. Accordingly, jurisdiction in the High Court is proper and Sanford's motion to dismiss or in the alternative for summary judgment is denied, as there are remaining factual issues to be tried. 
 
1. Choice of Law 
 
Sanford asserts that the High Court does not have jurisdiction under the Jones Act because the seven factors in U.S. Supreme Court case Lauritzen v. Larsen and the additional factor from Hellenic Lines Ltd. v. Rhoditis weigh in Sanford's favor. We disagree. 
 
[11-12] As set out in the aforementioned cases, the factors for the court to consider in a choice of law determination for foreign seamen suing under the Jones Act are: the place of the wrongful act; the law of the flag; the allegiance or domicile of the injured seaman; the allegiance of the defendant shipowner; the place where the employment contract was made; the inaccessibility of a foreign forum; the law of the forum; and the shipowner's base of operations. Lauritzen v. Larsen, 345 U.S. 571, 583-92 (1953); Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970). Choice of law determinations are to be made by weighing the above factors. Lauritzen v. Larsen, 345 U.S. at 582. The Supreme Court has further clarified that these factors are not exhaustive. Hellenic Lines Ltd. v. Rhoditis, 398 U.S. at 308-309. Instead, the factors are to be examined in the overall context of the case to determine whether, taken together, the factors rise to the level of "substantial contacts" between the United States and the defendant. Warn v. M/Y Maridome, 169 F.3d 625, 628 (9th Cir. Cal. 1999). 
 
In the instant case, the place of the alleged injury occurred on international waters. The law of the flag is New Zealand. The injured seaman was a Philippine citizen, temporarily admitted into American Samoa. Sanford owes allegiance to New Zealand. The employment contract was made in American Samoa. A foreign forum in New Zealand appears to be available, though the High Court claims no expertise in foreign laws. The shipowner's corporate base of operations is New Zealand, though the vessel itself has significant ties to Pago Pago Harbor in its daily operations. Notably, four persons were allegedly injured in the accident Plaintiff was involved in. Sanford has stipulated jurisdiction in the High Court for two of these plaintiffs. The only difference between the plaintiffs is residency. The two plaintiffs Sanford concedes High Court jurisdiction were foreign citizens but admitted into American Samoa on a one-year and five-year visa while the two plaintiffs, including Magalasin, Sanford disputes High Court jurisdiction were foreign citizens admitted into American Samoa on only a temporary basis. 
 
[13] Furthermore, when a wage claim is involved, 46 U.S.C. § 10313(i) notes that "the courts are available to the seaman" for enforcement of wage claims once a vessel is arrested "in a harbor of the United States," thereby providing for High Court jurisdiction. 
 
[14-15] While we note several contacts between the United States and Sanford, we decline to determine whether the Lauritzen and Rhoditis factors rise to a level of substantial contacts because Plaintiff's wage claim, included in the initial complaint, explicitly provides for jurisdiction in the High Court. In the Third Claim for Relief in the Complaint, Plaintiff alleged a contractual claim for maintenance, cure, and wages. Plaintiff began work on Sanford's vessel in Pago Pago Harbor and the vessel was later arrested in Pago Pago Harbor. Accordingly, Plaintiff has a right to sue under the Jones Act in a U.S. court and the High Court has proper jurisdiction for the action. 
 
2. Forum Non Conveniens 
 
Sanford next argues the High Court should not hear this case under the doctrine of forum non conveniens. We again disagree. 
 
[16-17] Under the doctrine of forum non conveniens, when an alternative forum has jurisdiction to hear a case and when a trial in the chosen forum would burden the defendant, the court may, in the exercise of its discretion, dismiss the case. Am. Dredging Co. v. Miller, 510 U.S. 443, 447-48 (1994). The court should balance various public and private interests in its analysis, including relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses and cost of obtaining attendance of unwilling witnesses, the possibility of viewing subject premises, and all other factors that render trial of the case expeditious and inexpensive. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947). 
 
[18] Although the Plaintiff resides in the Philippines, Sanford's corporate headquarters is in New Zealand, and witnesses are scattered seamen, we decline to apply the doctrine of forum non conveniens because we fail to see how splitting four cases arising out of the same incident in two separate forums benefits Sanford, witnesses, or the judicial systems. 
 
Order
 
Sanford's motion to dismiss or in the alternative for summary judgment is hereby denied. 
 
It is so ordered. 
 
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