DPL v. Blas

E-FILED
CNMI SUPREME COURT
E-filed: Aug 10 2023 04:04PM
Clerk Review: Aug 10 2023 04:04PM
Filing ID: 70602265
Case No.: 2022-SCC-0015-CIV
Judy Aldan

IN THE
Supreme Court
OF THE

Commonwealth of the Northern Mariana Islands

DEPARTMENT OF PUBLIC LANDS,
Plaintiff-Appellant,

v.

BASILIUS BLAS,
Defendant-Appellee.

Supreme Court No. 2022-SCC-0015-CIV

SLIP OPINION

Cite as: 2023 MP 7

Decided August 10, 2023

ASSOCIATE JUSTICE PERRY B. INOS
JUSTICE PRO TEMPORE ROBERT J. TORRES, JR.
JUSTICE PRO TEMPORE F. PHILIP CARBULLIDO

Superior Court No. 92-0040-CV
Presiding Judge Roberto C. Naraja, Presiding
 DPL v. Blas, 2023 MP 7

INOS, J.:
¶1 Appellant Department of Public Lands (“DPL”) appeals from an order
dismissing its action against Appellee Basilius Blas (“Blas”) without prejudice
for failure to prosecute. The court granted the order after a period of inaction
surpassing 20 years. For the following reasons, we AFFIRM the court’s order.
I. FACTS AND PROCEDURAL HISTORY
¶2 This case is about whether Blas could enter onto and construct buildings
on Lot 138 E 10 (“Lot 138”). He built a home on the lot around 1990. Blas had
received a grazing permit in Marpi, but the parties dispute whether he received
permission to occupy this lot.
¶3 In 1990, DPL’s predecessor agency, the Marianas Public Land
Corporation (“MPLC”), wrote to Blas asking him to remove the house and the
other structures built on public land. Blas did not comply. In 1991, he applied for
an agricultural homestead waiver for Lot 138 E 10. MPLC responded by saying
that it would investigate before making a determination. No determination was
made.
¶4 In 1992, MPLC filed a complaint against Blas to vacate Lot 138 and
remove the buildings. Blas counterclaimed for unjust enrichment. In June 1997,
MPLC moved for summary judgment. Blas cross-moved for summary judgment.
The court heard arguments on the motions and took the matter under advisement.
¶5 One year later, the court ordered additional briefing, to which only MPLC
responded. This was the last filing until 2020. The court never ruled on the
summary judgment motions, and neither party took any action.
¶6 In February 2020, Blas sent DPL a letter regarding his still pending
homestead waiver application. DPL learned of the case and requested a status
conference. The court ordered the parties to submit a statement of facts explaining
the case’s history. In response, Blas moved to dismiss for failure to prosecute
under Commonwealth Rule of Civil Procedure 41(b). 1 The court heard the motion
and the summary judgment motions and took them under advisement.
¶7 On March 21, 2022, the court ordered supplemental briefing in light of our
decision in Villagomez v. Marianas Ins. Co., 2021 MP 12, which also concerned
Rule 41(b). Blas passed away on July 29, 2022. Several weeks later, the court
granted the Rule 41(b) motion and dismissed the case without prejudice. DPL
appealed.
II. JURISDICTION
¶8 We have jurisdiction over final judgments of the Superior Court. NMI
CONST. art. IV, § 3. A dismissal of an action is an appealable final judgment. See
Kalayaan, Inc. v. Imbo, 2016 MP 16 ¶¶ 8–9; Ash v. Cvetkov, 739 F.2d 493, 496

1
This is the predecessor—in effect when this case started in 1992—to the current NMI
Rule of Civil Procedure 41(b). The current rule has slightly different wording but is
substantially identical.
 DPL v. Blas, 2023 MP 7

(9th Cir. 1984) (“Dismissal of an action without prejudice [for failure to
prosecute] is appealable.”).

III. ISSUES PRESENTED AND STANDARD OF REVIEW
¶9 DPL appeals two issues: (1) whether the court erred in granting Rule 41(b)
dismissal without first providing notice of dismissal for want of prosecution under
Rule of Practice 16 and (2) whether the court erred in that by granting the Rule
41(b) dismissal, the court ignored the ban on adverse possession of public land.
¶ 10 DPL’s arguments about Rule of Practice 16 and adverse possession
involve legal questions which we review de novo. In Re Estate of Moteisou, 2023
MP ¶ 7. We review dismissals for failure to prosecute for abuse of discretion.
Wabol v. Villacrusis, 2000 MP 18 ¶ 2. We will not reverse the court’s decision to
dismiss under Rule 41(b) unless we have a firm and definite conviction it
committed a clear error of judgment. Villagomez, 2021 MP 12 ¶ 14.
IV. DISCUSSION
A. Five-Factor Test
¶ 11 NMI courts weigh five factors in considering Rule 41(b) motions: “(1) the
public’s interest in expeditious resolution of litigation; (2) the court’s need to
manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy
favoring disposition of cases on their merits; and (5) the availability of less drastic
sanctions.” Su Yue Min v. Feng Hua Enter., 2017 MP 3 ¶ 20. “A dismissal may
be affirmed where at least four factors support dismissal, . . . or where at least
three factors strongly support dismissal.” Id. (internal quotation and citation
omitted). 2 Neither party analyzed the five-factor test. DPL’s arguments focused
on Commonwealth Rule of Practice 16 and adverse possession. We review the
court’s consideration in turn.
¶ 12 The first factor “always favors dismissal.” Villagomez, 2021 MP 12 ¶ 20.
In Villagomez, where we affirmed a Rule 41(b) dismissal, we identified two
periods of inactivity by the plaintiff; one three and a half years and the other four
years. The period of inactivity was over 20 years, many times longer than in
Villagomez. While the court acknowledged that a decision on the summary
judgment motions was pending and that MPLC underwent a reorganization into
DPL, the court found the extensive delay in calling for a status conference
inexcusable.
¶ 13 For the second factor, we give great deference to the court’s concern over
its docket management since it is best situated to decide when delays interfere
with its workload. Id. at ¶ 21. The court said the case’s extreme age hindered its
docket management by forcing it to review old physical case files rather than
address more current litigation. The court found this factor favors dismissal.

2
This is the first appeal we have heard concerning dismissal for failure to prosecute
without prejudice. Our previous cases, Mafnas v. Commonwealth, 2 NMI 248 (1991),
Wabol v. Villacrusis, 2000 MP 18, Su Yue Min v. Feng Hua Enter., 2017 MP 3, and
Villagomez v. Marianas Ins. Co., 2021 MP 12, all concerned dismissals with prejudice.
 DPL v. Blas, 2023 MP 7

¶ 14 For the third factor, there is a rebuttable presumption that the delay was
prejudicial to Blas. Su Yue Min, 2017 MP 3 ¶ 24. DPL argues that Blas has not
been prejudiced because certain relevant written witness statements are available.
The court was not persuaded, noting many witnesses have either died or moved
away from Saipan and that the memory of any witnesses still available would
have faded over the decades. 3 The court found the third factor supports dismissal.
¶ 15 The fourth factor always weighs against dismissal because there is a strong
public policy interest in deciding cases on their merits. Milne v. Po Tin, 2001 MP
16 ¶ 23. Yet dilatory conduct on the part of a plaintiff can outweigh this public
policy interest. Villagomez, 2021 MP 12 ¶ 23. The court determined that DPL’s
conduct was much more egregious than that of the plaintiffs in Villagomez due to
its inaction for over 20 years. It found the dilatory conduct outweighed the public
policy interest in favoring resolution on the merits.
¶ 16 The fifth factor requires courts to engage in “reasonable exploration of
possible and meaningful alternatives” to dismissal. Su Yue Min, 2017 MP 3 ¶ 26.
Alternatives include “conditional orders of dismissal, disciplinary action directed
at the erring attorney, monetary sanctions, and reprimands.” Milne v. Po Tin, 2001
MP 16 ¶ 26. The court determined that only dismissal was appropriate. 4 It said:
Monetary sanctions cannot bring back witness[es] from the dead or
memories that fade. Disciplinary action and reprimands are also
inappropriate as it was not Plaintiff’s current counsel who caused
the delay. It was DPL and its predecessors who had a duty to keep
this case moving. While DPL has tried recently to do just that, they
are too little too late.
Motion to Dismiss Order at 8.

Having determined that four of the five factors support dismissal, the court
granted the Rule 41(b) motion.
¶ 17 We agree with the court’s analysis. Of particular importance here is the
extensive delay—over twenty years—on behalf of DPL. In Villagomez, we
identified as favorable a number of federal court decisions dismissing cases where
plaintiffs delayed for as little as two months and as long as four years. Villagomez
v. Marianas Insurance Co., 2021 MP 12 ¶ 20 (citing Moneymaker v. CoBen, 31
F.3d 1447, 1452 (9th Cir. 1994); Wade v. City of Los Angeles, 2013 U.S. Dist.
LEXIS 12804 *1-2 (C.D. Cal. Jan. 29, 2013)). The delay here was even lengthier
We hold the trial court did not abuse its discretion in dismissing for failure to
prosecute.
¶ 18 We next consider DPL’s two main assignments of error.

3
Nonetheless, we note that any prejudice Blas might suffer from loss of witnesses and
memory would occur only at trial and would not have prevented the court from ruling
on the competing summary judgment motions.
4
We also observe that the court could still have decided the summary judgment motions
before ruling on the Rule 41(b) motion.
 DPL v. Blas, 2023 MP 7

B. Rule 16
¶ 19 Rule of Practice 16 is titled “Dismissal for Want of Prosecution.” Under
this rule, the clerk of court will notify parties of cases which have been inactive
for over two years that unless some action occurs or an explanation of inactivity
is provided, the case will be dismissed. DPL argues that Rule 16 was not followed
in this case and that no notices of inactivity were sent, making dismissal unfair. It
asserts that if it or MPLC had received a notice of inactivity, it would have
remedied the inaction.
¶ 20 DPL did not raise Rule 16 before the trial court but asks that we consider
this argument under the exception allowing purely legal issues to be raised for the
first time on appeal. Reyes v. Reyes, 2004 MP 1 ¶ 87. We are not convinced this
question is purely legal, as it is speculative how DPL or MPLC would have
responded to a notice of inactivity. We, therefore, decline to review the Rule 16
argument. 5
C. Adverse Possession
¶ 21 DPL asserts the court erred because the dismissal amounted to giving Blas
adverse possession of public land. Adverse possession is a doctrine which
“permits someone to take title away from the lawful owner of land simply by
using the land openly for a sufficient period of time.” Teregeyo v. Fejeran, 2004
MP 18 ¶ 10.
¶ 22 In the court below, DPL contended that dismissal would leave Blas “in
unlawful possession of a sizeable piece of public land in defiance of the laws of
the CNMI.” Appendix to Appellant’s Reply Br. at 54. DPL also explicitly argued
“the law prohibits adverse possession against the government . . . dismissing the
case would effectively allow an adverse possession action against the government
contrary to law.” Id. At 61–62. We find this issue was sufficiently preserved for
appeal.
¶ 23 Public land cannot be acquired through adverse possession. Borja v.
Rangamar, 1 NMI 347, 358 n.14 (1990). But Blas has made no claim based on
adverse possession. As Blas notes, he aims to pursue his “claim of the property in
question through his pending agricultural homestead waiver application.”
Appellee’s Br. at 6. DPL admits “Defendant does not claim he owns the land.”
Appellant’s Reply Br. at 7 n.4.
¶ 24 Furthermore, the argument assumes that if we affirmed the dismissal, DPL
could not refile the action, letting Blas remain on the land indefinitely. It cites
Semtek Intern. Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505-06 (2001) for
the proposition that a Rule 41(b) dismissal acts as a dismissal with prejudice. We
do not agree.

5
The appellants in Villagomez argued that dismissal for failure to prosecute was
improper because notice of inactivity had not been sent under the then-Rule of Civil
Procedure 41(b)(2), which was almost identical to Rule of Practice 16. Villagomez,
2021 MP 12 (Appellants’ Opening Br. at 25). Although our opinion did not explicitly
discuss this contention, we implicitly rejected it by affirming dismissal.
 DPL v. Blas, 2023 MP 7

¶ 25 Semtek stands for the exact opposite. In Semtek, the plaintiff filed a case
in California state court, which was removed to federal court and dismissed under
the statute of limitations. 531 U.S. at 499. The United States Supreme Court
considered whether the dismissal barred the plaintiff from subsequently bringing
the same claims in Maryland state court, which had a different statute of
limitations. Id. In analyzing Federal Rule of Civil Procedure 41(b)’s phrase
“adjudication upon the merits,” the court said:
an “adjudication upon the merits” is the opposite of a “dismissal
without prejudice” . . . The primary meaning of “dismissal without
prejudice,” we think, is dismissal without barring the [plaintiff]
from returning later, to the same court, with the same underlying
claim . . . Thus, Black’s Law Dictionary (7th ed. 1999) defines
“dismissed without prejudice” as “removed from the court’s docket
in such a way that the plaintiff may refile the same suit on the same
claim,” . . . and defines “dismissal without prejudice” as “[a]
dismissal that does not bar the plaintiff from refiling the lawsuit
within the applicable limitations period,” ibid.
531 U.S. at 505–06 (emphasis added). 6

¶ 26 As the Third Circuit explained, “Only a prior dismissal with prejudice
(whether voluntary or involuntary) precludes later relitigating the same claims.”
Papera v. Pa. Quarried Bluestone Co., 948 F.3d 607, 610 (3d Cir. 2020). See also
Vargas v. Zumiez, Inc., No. 19 Civ. 2056(AT), 2020 U.S. Dist. LEXIS 140346, at
*8 (S.D.N.Y. Aug. 5, 2020) (“Granting dismissal without prejudice allows the
court to focus resources on other important matters, and allows Plaintiff to resume
his litigation if circumstances permit.”) (internal quotations and citations
omitted).
¶ 27 Here again is the relevant language in Commonwealth Rule of Civil
Procedure 41(b):
For failure of the plaintiff to prosecute or to comply with these rules
or any order of court, a defendant may move for dismissal of an
action or of any claim against the defendant. Unless the court in its
order for dismissal otherwise specifies, a dismissal under this
subdivision . . . operates as an adjudication upon the merits.
(emphasis added).

The dismissal order did not operate as an adjudication upon the merits because it
is a dismissal without prejudice.

¶ 28 We are not persuaded by DPL’s argument that our opinion in Kalayaan,
Inc. v. Imbo, 2016 MP 16, provides that the dismissal of this case constitutes an
adjudication on the merits. In Kalayaan, we held that a dismissal of a complaint
is unappealable but that dismissal of an action pursuant to Rule 4(m) of the NMI

6
We look to the federal rules for guidance because they are the model for our rules.
 DPL v. Blas, 2023 MP 7

Rules of Civil Procedure can be appealed. Id. at ¶¶ 8–9. Dismissal of an action
does not automatically equate to a dismissal with prejudice. “A court’s dismissal
of an action is entered with or without prejudice, depending on the
circumstances.” In re Estate of Benjamin, 339 P.3d 1232, 1234 (Mont. 2014). The
trial court’s order dismissing this action is a final judgment, but not one with a
claim preclusive effect, meaning res judicata would not bar a refiling. Therefore,
the dismissal order does not bar DPL from refiling the case.
¶ 29 DPL also contended that refiling the case would amount to circumvention
of Rule 41(b) and make dismissal pointless. Again, we disagree. That a party has
to start again from the beginning is not a toothless sanction. The potential threat
of a dismissal encourages parties to prosecute their case. In addition, any refiling
is subject to the limitations the law provides.
¶ 30 Finally, DPL argues that landowners should be allowed to present their
case because land in the Commonwealth is scarce and cannot be easily replaced
once lost, citing our decision in Commonwealth v. Bordallo. 1 NMI 208, 219
(1990). Bordallo’s principle is sound, but the case is readily distinguishable.
There, we held the court abused its discretion to continue a land condemnation
trial to allow an unavailable witness to testify. Id. at 212. The defendants were
virtually denied an opportunity to present their side. Id. at 219. Failure to
prosecute was not at issue in Bordallo.
¶ 31 The concerns about refiling are not well-founded, and we have no “definite
and firm conviction that the trial court committed a clear error of judgment” in
granting the Rule 41(b) motion. Villagomez, 2021 MP 12 ¶ 14. We reiterate that
without such a conviction, we will not find an abuse of discretion and overturn
the trial court’s decision for dismissal. Id.
V. CONCLUSION
¶ 32 We find the court did not abuse its discretion in dismissing the action under
Rule 41(b). We AFFIRM the dismissal without prejudice.

SO ORDERED this 10th day of August, 2023.

/s/
PERRY B. INOS
Associate Justice

/s/
ROBERT J. TORRES, JR.
Justice Pro Tempore

/s/
F. PHILIP CARBULLIDO
Justice Pro Tempore
 DPL v. Blas, 2023 MP 7

COUNSEL

J. Robert Glass, Jr., Saipan, MP, for Appellant.

J.P. San Nicolas, Saipan, MP, for Appellee.

NOTICE

This slip opinion has not been certified by the Clerk of the Supreme Court for publication
in the permanent law reports. Until certified, it may be revised or withdrawn. In any event
of discrepancies between this slip opinion and the opinion certified for publication, the
certified opinion controls. Readers are requested to bring errors to the attention of the Clerk
of the Supreme Court, P.O. Box 502165 Saipan, MP 96950, phone (670) 236–9715, fax
(670) 236–9702, e–mail Supreme.Court@NMIJudiciary.com.