Guam – The battle continues between DFS and Lotte as DFS is working on amending their complaint against Lotte, a complaint that Lotte says is just hypothetical as it has yet to be filed.
One month ago DFS Legal counsel Jay Srinivasan notified the court that they would be filing an amended complaint against Lotte, seeking to add allegations and a cause for action that arose out of the discovery put forth in the procurement case.
Today they sought guidance from the court on how to file that complaint as the supporting documents obtained from Lotte under the procurement case are subject to the protective order. Srinivasan asked Superior Court Judge Arthur Barcinas for “his blessing” in filing the complaint under sealed record.
However, Judge Barcinas was reluctant to give “his blessing” as the court does not provide guidance in such instances. The motion to be filed is a motion for leave to amend the complaint.
But according to Lotte’s Legal Counsel Ceasar Cabot the motion is moot as a result of Judge Barcinas’ ruling in the procurement case, contending that, “all issues that stem from this hypothetical procurement are moot.”
He further argued that DFS is ” a victim of success” and that the documents provided in the procurement case were provided under a protective order which stated that the documents could only be used for the purposes of the procurement case. Cabot now alleges that DFS is attempting to go around the protective order.
However, Srinivasan says that is not what they are trying to do and for DFS it is a “catch 22” scenario, as filing could be a violation of the protective order but they are happy to file it under seal.
In any event a year ago on April 6th the last order before the court stayed the discovery, the court advised the parties that is was considering hearing the motion to reconsider hearing Lotte’s motion to dismiss. But that motion would not be heard until after the trial.
Cabot urged the court to honor that last order to hear the motion to dismiss which he believes will result in all other motions being moot.
Cabot offered to suggestions to the court that he believes is logical, the first to hear the motion to dismiss and dismiss the case without prejudice. Doing this according to Cabot would allow DFS to file and appeal and their amended complaint. The second is to stay the case until the Supreme Court rules on the pending appeal.
Judge Barcinas in response instructed DFS to move forward with filing their motion so that they could see what is filed, “that way we are all on the same page.”