E-FILED FOR PUBLICATION CNMI SUPERIOR COURT 1 E-filed: Jun 04 2020 03:26PM Clerk Review: Jun 04 2020 03:26PM Filing ID: 65675891 2 Case Number: 17-0056-CV N/A 3 IN THE SUPERIOR COURT FOR THE 4 COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS 5 RICKY GENE MENDIOLA LIZAMA, ET CIVIL ACTION NO. 17-0056 AL 6 Plaintiffs, 7 ORDER DISMISSING THE FIRST vs. AMENDED COMPLAINT PURSUANT TO 8 STAR MARIANAS AIR, INC., NMI R. CIV. P 12(e) FOR FAILURE TO SPECIFY WHICH OF THE THIRTY-FOUR 9 Defendant. SUBSECTIONS OF THE CONSUMER PROTECTION ACT WAS ALLEGEDLY 10 VIOLATED 11 12 13 I. INTRODUCTION 14 THIS MATTER came before the Superior Court for the Commonwealth of the Northern Associate Judge Joseph N. Camacho Joseph Judge Associate 15 Mariana Islands (“Commonwealth Superior Court”) on March 12, 2019, on Star Mariana’s Air, Inc.’s 16 motions to dismiss and strike. Attorney Cong Nie appeared on behalf of Plaintiffs Ricky Gene 17 Mendiola Lizama, et al (“Plaintiffs”). Attorney Timothy H. Bellas appeared on behalf of Defendant 18 Star Marianas Air, Inc. (“Star Marianas” or “Defendant”). 19 Based on the filings, arguments made at the hearings, and applicable law, the Court makes 20 the following Order. 21 II. BACKGROUND By order of the Court, By order of the 22 Plaintiff Ricky Gene Mendiola Lizama (“Lizama”) is an individual and a citizen of the United 23 States of America residing on Rota, CNMI. 24 25 26 1 Plaintiff Gherald M. Castro (“Castro”) is a minor child and a citizen of the United States of 2 America residing on Tinian, CNMI. 3 Defendant Star Marianas is a CNMI corporation that operates aircrafts. Its principal place of 4 business is on Tinian, CNMI. 5 On July 17, 2016, Lizama and Castro, as customers of Star Marianas, boarded a Star Marianas 6 aircraft from Saipan to Tinian. After the aircraft took off, Lizama noticed fuel spewing out of the 7 aircraft (“the Incident”). Lizama alerted the pilots on the aircraft, who then turned the aircraft around 8 and made a safe landing at the Saipan airport. No physical injuries were alleged as a result of the 9 Incident. 10 When they disembarked from the aircraft, Lizama and Castro smelled fuel fumes. Plaintiffs 11 alleged that Star Marianas staff failed to secure the fuel cap on a fuel tank of the aircraft before Lizama 12 and Castro boarded the aircraft. 13 On February 22, 2017, Plaintiffs filed a complaint alleging three causes of action against 14 Defendant: (1) negligence, (2) violation of the CNMI Consumer Protection Act (“CPA”), and (3) 15 negligent infliction of emotional distress. Defendant then moved to dismiss and/or strike the cause of 16 action of violation of the CPA, as well as certain paragraphs of the complaint and Plaintiffs’ prayer 17 for punitive damages, attorneys’ fees, and costs, pursuant to NMI Rule of Civil Procedure 12(b)(6) 18 and 12(f) (“First Motion to Dismiss”). On September 8, 2017, the Court granted Defendant’s First 19 Motion to Dismiss. See Lizama v. Star Marianas Air, Inc., Civ. No. 17-0056 (NMI Super. Ct. Sept. 20 08, 2017) (Order Granting Defendant’s Motions to Dismiss because Plaintiffs’ Complaint Failed to 21 Allege Facts Showing Deceit, Misleading, Confusion, or Use of Unfair Business Practices or that 22 Defendant Knew or should have known it Introduced an Unsafe Service into Commerce as Required 23 for a Violation of 4 CMC § 5105(r) of the NMI Consumer Protection Act; and Failed to Allege 24 25 - 2 - 26 27 1 Sufficient Facts to show Outrageous Conduct as Required for Punitive Damages). However, the Court 2 also granted Plaintiffs leave to amend their complaint. 3 On May 24, 2018, Plaintiffs filed their first amended complaint (the “FAC”) alleging two 4 causes of action against Defendant: a CPA violation and negligent infliction of emotional distress. 5 Plaintiffs also demanded punitive damages, attorneys’ fees, and costs. 6 In support of Plaintiffs’ arguments, Plaintiffs’ stated in their FAC: 7 Upon information and belief, safety standards in the commercial airline industry require pilots and aircrew to conduct a rigorous inspection of their aircrafts (the 8 “pre-flight inspection”), including a thorough visual inspection, to ascertain the aircrafts are in an airworthy condition each day before the aircrafts’ first flight on 9 that day. Upon information and belief, for small aircrafts that are used multiple times during 10 the same time such as those used by Star Marianas, safety standards in the commercial airline industry also require pilots and aircrew to conduct a pre-takeoff 11 check (the “pre-takeoff inspection”), including a visual inspection of critical areas of the aircrafts, to ascertain the aircrafts are still in an airworthy condition before 12 each subsequent takeoff. For small aircrafts such as those used by Star Marianas, fuel tanks that are not 13 closed properly present a serious danger to the safety of aircrew and passengers because (among other reasons) they will lead to fuel leaking, vented, or siphoned 14 from the unclosed fuel tanks in mid-air, which may result in the aircrafts catching fire or even having an explosion, or engine failure due to lack of fuel. 15 Upon information and belief, the National Transportation Safety Board has published numerous accidents and/or mishaps involving small aircrafts in which 16 the cause, as concluded by the Board, was unsecured or damaged fuel cap. Therefore, safety standards in the commercial airline industry require fuel caps to 17 be securely replaced after fueling. Moreover, upon information and belief, the pre-flight inspection and the pre-takeoff 18 inspection, if done pursuant to industry standards for small aircrafts such as those used by Star Marianas, will allow pilots to discover unsecured or damaged fuel caps 19 before each flight. […] 20 Upon information and belief, Star Marianas staff either failed to conduct a pre- flight inspection or a pre-takeoff inspection, or conducted one carelessly, thus 21 failing to discover the fuel cap was not secured. Had Star Marianas staff conducted a pre-flight inspection or a pre-takeoff 22 inspection according to the industry standard, they would have discovered the fuel cap was not secured. 23 It would be impossible to have an unsecured fuel cap in mid-air without having multiple lapses in carrying out the industry standards, which are designed for 24 redundancy. 25 - 3 - 26 27 1 Upon information and belief, Star Marianas staff were routinely careless in performing non-flight operations such as refueling and in conducting pre-flight or 2 pre-takeoff inspections. Upon information and belief, Star Marianas knew that their staff were routinely 3 careless in performing non-flight operations such as refueling and in conducting the necessary inspections to ensure the airworthiness of its aircrafts, and that as a 4 result, its airline services were unsafe for its customers. Upon information and belief, by still offering its airline services to the general 5 public, Star Marianas acted a reckless and utter indifference to the safety of its customers and other persons who may be harmed by an accident involving its 6 aircrafts. […] 7 Upon information and belief, the airline services introduced by Star Marianas into commerce were unsafe. 8 Upon information and belief, Star Marianas knew that their staff were often careless in performing non-flight operations such as refueling and in conducting the 9 necessary inspections to ensure the airworthiness of its aircrafts, and that as a result, its airline services were unsafe for its customers. 10 Star Marianas had a duty to disclose and warn its customers that its services were unsafe and to correct the safety problem, but failed to do so, knowing that the 11 problem persisted. In essence, Star Marianas was providing unsafe airline services to the general 12 public in “as is” condition, without informing its customers. 13 FAC ¶¶ 7-12, 17-22, and 33-36. 14 On October 19, 2018, Defendant Star Marianas filed its Memorandum of Points and 15 Authorities in Support of Motion to Dismiss First Amended Complaint and Strike Punitive Damages 16 (“Second Motion to Dismiss”). Defendant argued that the (1) CNMI Consumer Protection Act is 17 preempted by the Airline Deregulation Act (“ADA”); (2) Plaintiffs failed to plead sufficient factual 18 circumstances that this case warrants the protections or heightened penalties of the CPA; and (3) 19 Plaintiffs failed to plead actions which are sufficiently outrageous or malevolent to entitle them to 20 punitive damages. 21 On November 30, 2018, Plaintiffs filed Plaintiffs’ Opposition to Defendant’s Motion to 22 Dismiss and Strike. 23 On January 04, 2019, Defendant filed its Reply in Support of Motion to Dismiss First 24 Amended Complaint and Punitive Damages. 25 - 4 - 26 27 1 III. LEGAL STANDARD 2 A. Rule 12(b)(6) of the Commonwealth Rules of Civil Procedure 3 Rule 8(a)(2) of the Northern Mariana Islands Rules of Civil Procedure states that a pleading 4 “shall contain . a short and plain statement of the claim showing that the pleader is entitled to 5 relief.” 6 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which relief can 7 be granted.” NMI R. CIV. P. 12(b)(6). A Rule 12(b)(6) motion tests the legal sufficiency of the claims 8 asserted in a complaint. Camacho v. Micronesian Dev. Co., 2008 MP 8 ¶ 10. To survive a Rule 9 12(b)(6) motion to dismiss, a “complaint must [1] contain either direct allegations on every material 10 point necessary to sustain a recovery on any legal theory, even though it may not be the theory 11 suggested or intended by the pleader, or [2] contain allegations from which an inference fairly may 12 be drawn that evidence on these material points will be introduced at trial.” In re Adoption of 13 Magofna, 1 NMI 449, 454 (1990) (citations omitted).