RSA-Tumon, LLC v. Pitt County Memorial Hospital, Inc., and Sherif Antoun Philips

IN THE SUPREME COURT OF GUAM

RSA-TUMON, LLC,
Plaintiff-Appellee,

v.

PITT COUNTY MEMORIAL HOSPITAL, INC.,
Defendant-Appellee,

and

SHERIF ANTOUN PHILIPS,
Defendant-Appellant.

Supreme Court Case No. CVA22-003
Superior Court Case No. CV0453-20

OPINION

Cite as: 2023 Guam 8

Appeal from the Superior Court of Guam
Argued and submitted on March 1, 2023
Hagåtña, Guam
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 2 of 22

Appearing for Defendant-Appellant: Appearing for Plaintiff-Appellee:
Sherif Antoun Philips, M.D., pro se Daniel J. Berman, Esq.
1406 N. Marine Corps Dr. Berman Law Firm
Tumon, GU 96913 Bank of Guam Bldg.
111 Chalan Santo Papa, Ste. 503
Hagåtña, GU 96910

Appearing for Defendant-Appellee:
Anita P. Arriola, Esq.
William B. Brennan, Esq. (argued)
Arriola Law Firm
259 Martyr St., Ste. 201
Hagåtña, GU 96910
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 3 of 22

BEFORE: ROBERT J. TORRES, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice;
KATHERINE A. MARAMAN, Associate Justice.

TORRES, C.J.:

[1] Defendant-Appellant Sherif Antoun Philips, M.D. (“Dr. Philips”) asks us to review the

Superior Court’s denial of his motion to dismiss on various grounds. In an Order issued March 1,

2023, this court construed Dr. Philips’s notice of appeal and brief as a petition for permission to

appeal. Defendant-Appellee Pitt County Memorial Hospital, Inc. (“PCMH”) and Plaintiff-

Appellee RSA-Tumon, LLC (“RSA”) were given the opportunity to answer the petition. RSA

timely filed an answer, while PCMH filed a cross-petition for interlocutory review. RSA also

answered the cross-petition.

[2] We grant Dr. Philips’s petition for permission to appeal, we deny PCMH’s cross-petition,

we affirm the decision of the Superior Court, and we issue a pre-filing order to Dr. Philips.1

I. FACTUAL AND PROCEDURAL BACKGROUND

[3] This appeal is part of ongoing litigation between Dr. Philips and PCMH. Although the

initial dispute between Dr. Philips and PCMH originated in North Carolina, this case is an

interpleader action filed by RSA. This case was filed after PCMH levied against Dr. Philips’s

ownership interest in RSA and sold it at public auction to satisfy a judgment obtained in the North

Carolina litigation.

[4] PCMH secured a judgment against Dr. Philips for $457,335.70 in costs and attorney’s fees

plus post-judgment interest in Pitt County, North Carolina Superior Court. Dr. Philips appealed

to the North Carolina Supreme Court, and the court dismissed his appeal; he also filed claims

against PCMH in federal court, but the claims were dismissed with prejudice. Appellant’s

1
This Opinion supersedes the Order issued by this court on March 31, 2023.
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 4 of 22

Excerpts of Record (May 3, 2022) (“ER”) at unnumbered p. 81 (Pet. Writ Cert., Oct. 15, 2018).2

PCMH then filed a complaint in the Superior Court of Guam to domesticate the North Carolina

judgment against Dr. Philips. PCMH moved for summary judgment against Dr. Philips, and the

trial court granted the motion, giving the North Carolina judgment full faith and credit. PCMH

then sought a levy on “[a]ll and any part of the capital, equity or membership interest” of Dr.

Philips in RSA. Record on Appeal (“RA”), tab 1 at 2 (Compl. Interpleader, July 7, 2020)

(alteration in original). PCMH obtained a writ of execution against Dr. Philips’s membership

interest in RSA and noticed an execution sale, where it intended to sell the membership interest at

public auction. On the date of the auction, RSA sought to release the levy on the membership

interest, but PCMH moved forward with the public auction—where it made the winning bid on

credit.

[5] After the auction, RSA filed an interpleader complaint in the Superior Court of Guam.

RSA sought to enjoin PCMH from selling Dr. Philips’s membership interest in RSA because it

claimed that such a sale violated its Operating Agreement. Dr. Philips was named as a defendant

in the interpleader action and was served the summons and complaint at his place of business. Dr.

Philips moved to dismiss and strike the complaint, alleging the Superior Court lacked jurisdiction.

[6] Dr. Philips then removed the case to the District Court of Guam. RSA moved for the case

to be remanded to the Superior Court due to a lack of diversity between the parties. Dr. Philips

filed no opposition. The District Court remanded the case to the Superior Court based on a lack

of subject matter jurisdiction. The District Court noted that as a limited liability company, RSA

2
Although filed simultaneously with his opening brief, Dr. Philips erroneously referred to these documents
as his “Supplemental Excerpts” of Record rather than Excerpts of Record. See Guam R. App. P. 15(g)(1). Many
documents from Dr. Philips’s protracted litigation with PCMH are not included in the Record on Appeal in this case.
In our discretion, and without request, we take judicial notice of this and certain other court records under Guam Rule
of Evidence 201(b)(2)-(c), as they are “capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” See San Nicolas v. Birn, 2022 Guam 8 ¶ 3 n.1.
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 5 of 22

is a citizen of every state of which its owners are citizens. As Dr. Philips owned a 5% membership

interest in RSA, the District Court concluded that RSA was a citizen of whichever state Dr. Philips

was a citizen, and that as such there could not be diversity. Dr. Philips then filed an appeal to the

Ninth Circuit.

[7] After the case was remanded to the Superior Court, Dr. Philips filed a “Rule 62 Motion to

Dismiss,” notwithstanding his previous motion to dismiss which was still under advisement. The

Ninth Circuit denied his appeal because it lacked subject matter jurisdiction. That same day, the

Superior Court denied the “Rule 62” motion, finding that “[t]o the extent Dr. Philips believes that

this Court should stay these interpleader proceedings pending an appellate review of the remand

Order, the Ninth Circuit has already definitively ruled that it lacks jurisdiction to review such

Order.” RA, tab 20 at 2 (Order, Aug. 6, 2021).

[8] Just over two weeks later, Dr. Philips filed another motion to dismiss under Rule 62 of the

Guam Rules of Civil Procedure. Seemingly, Dr. Philips wished to move the Superior Court to stay

the proceedings pending disposition of his petition for panel rehearing to the Ninth Circuit. See

ER at unnumbered pp. 53-54 (Order, Sept. 30, 2021); Appellant’s Br. at 11 (May 3, 2022). The

Ninth Circuit unanimously denied rehearing. Dr. Philips petitioned for a writ of certiorari to the

U.S. Supreme Court, but it was not docketed for five months, presumably when his filing was

brought into compliance with Court rules. See U.S. Supreme Court Docket Search, available at

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21-

1200.html; see also Sup. Ct. R. 12.3 (“[T]he petition shall comply in all respects with Rule 14 and

shall be submitted with proof of service as required by Rule 29. The case then will be placed on

the docket.”). The U.S. Supreme Court denied certiorari.
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 6 of 22

[9] Dr. Philips answered RSA’s complaint and counterclaimed for “Accounting-Anti Trust,

Fraud, Harassment and legal fees.” RA, tab 32 at 1 (Answer – Denial Compl. & Countercls., Jan.

12, 2022). The Superior Court issued a Decision and Order denying Dr. Philips’s second “Rule

62” motion. RA, tab 39 at 1-6 (Dec. & Order, Feb. 15, 2022). It found that Rule 62 did not apply

and that further procedurally improper Rule 62 filings would subject Dr. Philips to sanctions. Id.

at 2. The Superior Court found that it had personal jurisdiction over Dr. Philips because “the

establishment of his domicile” in Guam was “now the law of the case.” Id. at 3. The court took

judicial notice that “Dr. Philips has continuously represented that he has been living in Guam for

more than ten years and that Guam has become his primary residence.” Id. The court stated that

even if Dr. Philips’s domicile were not in Guam, exercise of jurisdiction under Guam’s long-arm

jurisdiction statute would not offend due process because “Dr. Philips’ admitted long-term

residence on Guam indicates he has had substantial and continuous contacts within this forum,

thereby conferring general jurisdiction over him.” Id. at 4. The court also stated that Dr. Philips

could not seek dismissal on the grounds of fraud or abuse of discretion. Id. at 4-5.

[10] Dr. Philips filed a Notice of Appeal. This court held oral arguments, with Dr. Philips

appearing on his own behalf. That same day, we issued an order invoking Rule 2 of the Guam

Rules of Appellate Procedure (“GRAP”) to suspend the requirements of GRAP 4.2 as they related

to Dr. Philips’s filings, and we construed his notice of appeal and brief as a petition for permission

to appeal. RSA and PCMH were given an opportunity to file an answer opposing the petition.

RSA timely answered, and PCMH filed a cross-petition for interlocutory appeal under GRAP

4.2(b)(2). RSA also answered the cross-petition.

[11] On March 31, 2023, we dismissed two other procedurally improper interlocutory appeals

that Dr. Philips had filed while this appeal was under advisement. Order (CVA22-009, Mar. 31,
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 7 of 22

2023); Order (CVA23-003, Mar. 31, 2023). We also issued a pre-filing order that imposed a

temporary injunction on Dr. Philips’s filing of interlocutory appeals until he had an opportunity to

respond. Order at 16 (Mar. 31, 2023). Dr. Philips was ordered to show cause why the pre-filing

order should not become final, to which he timely filed an answer. Show Cause (Apr. 10, 2023).

II. JURISDICTION

[12] An order denying a motion to dismiss is not specifically appealable under Guam law. See

7 GCA § 25102 (2005). The interlocutory appeal of the denial of a motion to dismiss is a

discretionary appeal, rather than an appeal as of right. Banes v. Superior Court, 2012 Guam 11 ¶

22. An interlocutory appeal must satisfy at least one condition of 7 GCA § 3108(b), which exists

to “ensure that such appeals are granted only when the necessity of immediate review outweighs

[the] general policy against piecemeal disposal of litigation.” Shin v. Fujita Kanko Guam, Inc.,

2007 Guam 18 ¶ 7 (alteration in original) (quoting People v. Angoco, 2006 Guam 18 ¶ 14). We

can exercise our discretion to resolve a question of law that will “[m]aterially advance the

termination of the litigation or clarify further proceedings therein.” 7 GCA § 3108(b)(1) (2005).

[13] The courts of Guam have the “inherent power to regulate the activities of abusive litigants

by imposing carefully tailored restrictions in appropriate circumstances.” Andrews v. Heaton, 483

F.3d 1070, 1077 (10th Cir. 2007); see also People v. Wai Kam Ho, 2009 Guam 18 ¶ 8. The Guam

Supreme Court also derives this power from our Rules of Appellate Procedure and the Organic

Act. See Guam R. App. P. 32. Compare 48 U.S.C.A. § 1424-1(a)(3) (Westlaw current through

Pub. L. 118-13) (“jurisdiction to issue all orders and writs in aid of its appellate, supervisory, and

original jurisdiction”), with Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir.

2007) (per curiam) (“The All Writs Act, 28 U.S.C. § 1651(a), provides district courts with the

inherent power to enter pre-filing orders against vexatious litigants.”).
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 8 of 22

III. STANDARD OF REVIEW

[14] We may review our own jurisdiction at any time, and we will dismiss an appeal if we find

jurisdiction to be lacking. In re Estate of Maruyama, 2013 Guam 23 ¶ 15. Questions of jurisdiction

involve interpretation of the applicable statutes about such jurisdiction; “[i]ssues of statutory

construction and jurisdiction are reviewed de novo.” People v. San Nicolas, 2016 Guam 21 ¶ 9

(citation omitted). Denial of a motion to dismiss is reviewed for an abuse of discretion. Cf.

Hemlani v. Hemlani, 2015 Guam 34 ¶ 10; People v. Leslie, 2011 Guam 23 ¶ 13; People v. Flores,

2009 Guam 22 ¶ 9.

[15] “Application of our Rules of Appellate Procedure . . . does not require a standard of

review.” Abalos v. Cyfred, Ltd., 2009 Guam 14 ¶ 6.

IV. ANALYSIS

[16] We give deference to the litigation efforts of a self-represented party. Allen v. Richardson,

2020 Guam 13 ¶ 8. Still, Dr. Philips’s brief discusses several grievances about the rulings of the

District Court of Guam, Ninth Circuit Court of Appeals, and the courts of North Carolina. See

Appellant’s Br. at 6-11. These topics are unrelated to this appeal regarding denial of his motion

to dismiss and are outside our subject matter jurisdiction. As the original Superior Court action to

domesticate the North Carolina judgment and this interpleader action are distinct, Dr. Philips’s

attempts to collaterally attack the North Carolina judgment are also misplaced. Deferring Dr.

Philips’s litigation efforts as a self-represented party, we limit our review to jurisdiction and

whether the Superior Court abused its discretion in denying the motion to dismiss.

A. We Grant Dr. Philips’s Petition for Interlocutory Appeal Because It Satisfies 7 GCA §
3108(b)(1)

[17] RSA argues that we lack jurisdiction over this interlocutory appeal. Appellee RSA’s Br.

at 6-9 (July 8, 2022). To address these concerns, we allowed RSA and PCMH to answer the merits
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 9 of 22

of Dr. Philips’s petition. We may hear an appeal of an interlocutory order if it satisfies one of the

criteria in 7 GCA § 3108(b). We may exercise our discretion to resolve a question of law that will

“[m]aterially advance the termination of the litigation or clarify further proceedings therein.” 7

GCA § 3108(b)(1).

[18] A threshold question is whether the issue on appeal presents a question of law. See 7 GCA

§ 3108(b). The issues presented do not call for a fact-intensive inquiry. See In re Guardianship

of Moylan, 2018 Guam 15 ¶ 6 (“[S]ubject matter jurisdiction is a question of law ” (quoting

Blake v. Cnty. of Kaua’i Plan. Comm’n, 315 P.3d 749, 757 (Haw. 2013))); Guam Police Dep’t v.

Guam Civ. Serv. Comm’n (Charfauros), 2020 Guam 12 ¶ 8 (stating that when deciding a motion

to dismiss, “a court must accept all the well-pleaded facts as true, ‘construe the pleading in the

light most favorable to the non-moving party, and resolve all doubts in the non-moving party’s

favor’” (quoting First Hawaiian Bank v. Manley, 2007 Guam 2 ¶ 9)).

[19] This court has held that 7 GCA § 3108(b)(1) “address[es] concerns of judicial efficiency

in permitting interlocutory appeals in specific circumstances.” People v. Quenga, 1997 Guam 6 ¶

12. Granting interlocutory review will not result in piecemeal disposition. Rather, it will promote

judicial efficiency by resolving arguments that Dr. Philips continues to raise but which have not

been addressed because his appeals are dismissed on procedural grounds. Deciding this appeal on

the merits will clarify further proceedings because it will clarify that Dr. Philips’s arguments have

been heard and ruled on—he may not raise them again verbatim as he has done before. The dispute

is primarily between RSA and PCMH about the propriety of the levy and sale of the ownership

interest in the LLC. By reaching the merits of Dr. Philips’s arguments at the early stages, we

narrow the scope of the litigation and avoid future unnecessary appeals.
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 10 of 22

[20] The provisions of GRAP 4.2 are not jurisdictional, and interlocutory review may be granted

without a petition that complies with the rule if one of the criteria in 7 GCA § 3108(b) is met. See

People v. Lujan, 1998 Guam 28 ¶ 8 (“We have consistently held that this court’s appellate

jurisdiction is limited to those matters which the legislature permits us to review.” (emphasis

added)); cf. Sky Enter. v. Kobayashi, 2002 Guam 24 ¶ 13 (“Because the time limit for filing an

appeal is jurisdictional, it must be complied with, notwithstanding any order from this court

agreeing to hear a discretionary appeal.”); State v. Jenne, 591 A.2d 85, 88 (Vt. 1991). Therefore,

we grant Dr. Philips’s petition for permission to appeal.

B. We Deny PCMH’s Cross-Petition for Interlocutory Appeal

[21] PCMH “submits its Cross-Petition for Interlocutory Appeal under 7 GCA § 3108(b)(l), (2)

or (3),” but makes no further mention of the jurisdictional requirements of section 3108(b). Cross-

Pet. at 1 (Mar. 13, 2023); see Sky Enter., 2002 Guam 24 ¶ 23 (stating the requirements of 7 GCA

§ 3108(b) are jurisdictional). The cross-petition provides no analysis about how the interlocutory

appeal presents a question of law that would: “(1) Materially advance the termination of the

litigation or clarify further proceedings therein; (2) Protect a party from substantial and irreparable

injury; or (3) Clarify issues of general importance in the administration of justice.” 7 GCA §

3108(b). When a party represented by counsel fails to argue the case meets the requirements of

section 3108(b), they fail to meet their burden of showing those factors apply. See In re Estate of

Maruyama, 2013 Guam 23 ¶ 28. “In both [trial] and appellate courts, the development of an

argument is a party’s responsibility, not a judicial duty.” Salt Lake City v. Kidd, 2019 UT 4, ¶ 35,

435 P.3d 248; see also Gaspard & Co. v. Tommy Tanaka Realty, Inc., No. CV-81-0053A, 1982

WL 30773, at *2 (D. Guam App. Div. July 2, 1982) (“Where an appellant fails to show that the
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 11 of 22

trial court was wrong, it is not incumbent on a reviewing court to engage in a dissertation on the

law for the purposes of demonstrating that the trial court was right.”).

[22] As PCMH has failed to meet its burden of showing at least one of the factors in section

3108(b) is met, we deny its cross-petition.

C. We affirm the decision of the Superior Court

[23] PCMH argues the Superior Court did not abuse its discretion in denying the motion to

dismiss and characterizes Dr. Philips’s appeal as “frivolous.” Appellee PCMH’s Br. at 1 (May 27,

2022). It contends that Dr. Philips has “failed to show a reversible abuse of discretion or any

related error in the trial court’s denial of relief to Defendant on his Rule 62 Motion to Dismiss.”

Id. at 4. PCMH also states that neither it nor this court is “able to proceed on a focused legal

review of the chaotic Opening Brief.” Id. at 5. PCMH requests that we dismiss the appeal based

on Dr. Philips’s violations of the GRAP or based on the “incoherence and frivolousness of the

Opening Brief.” Id. RSA also argues the Superior Court did not abuse its discretion in denying

the motion to dismiss, apart from its argument that this court lacks jurisdiction over this

interlocutory appeal. Appellee RSA’s Br. at 6-7.

1. The Superior Court had subject matter jurisdiction because it took no substantive
action until Dr. Philips exhausted federal appellate review

[24] Although not clearly articulated, Dr. Philips’s arguments are enough to merit review of the

Superior Court’s jurisdiction. Dr. Philips’s repeated invocation of Rule 62 seems to be a misguided

attempt to invoke this court’s “divestiture rule.” Compare Guam R. Civ. P. 62(d), with San

Nicolas, 2016 Guam 21 ¶ 13 (“[O]nce a notice of appeal has been filed, the trial court loses the

power to take any substantive action with respect to the order or judgment on appeal.” (quoting

Bell v. United States, 676 A.2d 37, 40-41 (D.C. 1996))); see also Dumaliang v. Silan, 2000 Guam

24 ¶ 14 (explaining that the divestiture rule is a “judge-made rule designed to avoid confusion or
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 12 of 22

waste of time from having two courts considering the same issues at the same time”). He seems

to argue that the Superior Court lacked jurisdiction while his appeal of the District Court’s order

of remand was pending. See Appellant’s Br. at 11.

[25] Although raising the divestiture rule presents an issue capable of our review, it does not

apply in this case. Dr. Philips removed this action to federal court and then presented no basis for

jurisdiction to the District Court. Appellee RSA’s Suppl. Excerpts of Record (“SER”) at 63-65

(Mot. Transfer, July 13, 2020); Appellee RSA’s SER at 66-68 (Order Granting Mot. Remand, Mar.

30, 2021). The District Court remanded the case to the Superior Court. Appellee RSA’s SER at

67-71 (Order Granting Mot. Remand). Dr. Philips then tried to appeal that order of remand to the

Ninth Circuit, despite black letter law that an order of remand is not reviewable. 28 U.S.C.A. §

1447(d) (“An order remanding a case to the State court from which it was removed is not

reviewable on appeal or otherwise ”); see also Things Remembered, Inc. v. Petrarca, 516 U.S.

124, 127 (1995); Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 230 (2007). Even

in the face of such a futile appeal, the Superior Court took no action until after the Ninth Circuit

summarily rejected Dr. Philips’s appeal. RA, tab 20 at 2 (Order, Aug. 6, 2021). The Superior

Court then properly denied Dr. Philips’s first “Rule 62” motion to dismiss because his appeal had

been rejected. Id. (“To the extent Dr. Philips believes that this Court should stay these interpleader

proceedings pending an appellate review of the remand Order, the Ninth Circuit has already

definitively ruled that it lacks jurisdiction to review such Order.”).

[26] Although it is unclear from Dr. Philips’s brief or excerpts of record, in giving deference to

his litigation efforts, we infer that he filed his second “Rule 62” motion to dismiss after he

petitioned the Ninth Circuit for rehearing. Dr. Philips’s petition for rehearing was denied by the

Ninth Circuit on September 30, 2021. The record shows the Superior Court took no substantive
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 13 of 22

action on the second “Rule 62” motion until February 15, 2022. See Certified Docket Sheet at 2-

3 (Mar. 30, 2022). Even if the Superior Court lost the power to take any substantive action while

the futile appeal of the remand order was pending, it had the power to deny the “Rule 62” motion

when it did because “the mere act of filing a petition for certiorari does not deprive the [lower]

court of jurisdiction over the case.” United States ex rel. Escobar v. Universal Health Servs., Inc.,

842 F.3d 103, 106 n.1 (1st Cir. 2016); see also United States v. Sears, 411 F.3d 1240, 1241-

42 (11th Cir. 2005) (per curiam) (“[T]he mere filing of a petition for certiorari with the Supreme

Court neither stops the mandate from issuing nor stops the case from proceeding in the district

court. A litigant desiring such cessation must seek and obtain a stay.”). The rule articulated by

the Second Circuit is persuasive on this issue:

Whatever the superficial attractiveness of a per se rule that filing of a notice
of appeal automatically divests the district court of jurisdiction as to matters
covered by the notice, such a rule is subject to abuse, and our application of the
divestiture rule must be faithful to the principle of judicial economy from which it
springs. We fail to see any efficiency in allowing a party to halt district court
proceedings arbitrarily by filing a plainly unauthorized notice of appeal which
confers on this court the power to do nothing but dismiss the appeal.

United States v. Rodgers, 101 F.3d 247, 251-52 (2d Cir. 1996) (citations omitted). Likewise, there

is no efficiency in allowing Dr. Philips to halt Superior Court proceedings arbitrarily by filing an

unauthorized notice of appeal which conferred on the Ninth Circuit only the power to dismiss the

appeal. The Superior Court had jurisdiction because it did not violate the divestiture rule.

2. The Superior Court did not abuse its discretion in denying the motion to dismiss

[27] We generally will not grant permission to appeal denial of a motion to dismiss. But we

exercise our discretion in this unique factual and procedural instance to settle with finality the trial

court’s personal jurisdiction over Dr. Philips.
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 14 of 22

[28] The Superior Court found that Dr. Philips’s status as a resident of Guam was the law of the

case, and as such the court had jurisdiction over him. RA, tab 39 at 3 (Dec. & Order, Feb. 15,

2022). It also took judicial notice of Dr. Philips’s answer in the related case No. CV0478-18,

where he represented that he has been living in Guam for more than ten years and that Guam has

become his primary residence. Id. The court continued its analysis by stating that even if Dr.

Philips were not a Guam resident, the court could still exercise general jurisdiction over him under

Guam’s long-arm statute. Id. at 2-4.

[29] Whether the District Court’s determination that Dr. Philips was domiciled in Guam was

the “law of the case” is perhaps debatable, but the Superior Court’s personal jurisdiction over Dr.

Philips is not. The Superior Court is not bound by findings of the District Court in an order of

remand, but it may adopt them if they are not clearly erroneous. Cf. Ping Chiang Lei v. Glob.

Eng’g & Maint. SVC. Corp., No. CV 96-00007A, 1996 WL 875782, at *4 (D. Guam Oct. 4, 1996)

(“Following a bench trial, the judge’s findings of fact should not be set aside unless clearly

erroneous.”). It was not an abuse of discretion to incorporate the District Court’s findings into the

determination that Dr. Philips is a resident of Guam and subject to the jurisdiction of the Superior

Court.

[30] The Superior Court taking judicial notice of Dr. Philips’s answer in a related case was also

proper. A court may take judicial notice of matters of public record, such as pleadings filed in

other actions. See Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988) (stating that

a judge could properly take judicial notice of determinations made by district court in other actions

because they were matters of public record). This court has also stated that judicial notice is not

limited to only the trial court record of the proceeding before the court. People v. Diaz, 2007

Guam 3 ¶ 66. “A judicial admission [i]s defined as ‘a formal act done in the course of judicial
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 15 of 22

proceedings which . . . bars the party himself from disputing it.’” Sinlao v. Sinlao, 2005 Guam 24

¶ 16 (first alteration in original) (quoting Goldsmith v. Allied Bldg. Components, Inc., 833 S.W.2d

378, 380 (Ky. 1992)). “Such admissions ‘may occur at any point during the litigation process,’

including during ‘. . . pleadings . . . .’” Id. (quoting Kohne v. Yost, 818 P.2d 360, 362 (Mont.

1991)). The Superior Court did not abuse its discretion when it took judicial notice of Dr. Philips’s

admissions in a related case he was subject to the jurisdiction of the Superior Court.

[31] “To establish personal jurisdiction, [a] plaintiff must first identify a statute asserting

personal jurisdiction over the defendant; and then, the plaintiff must show that exercising

jurisdiction over the defendant fulfills the constitutional principles of due process.” Banes, 2012

Guam 11 ¶ 27.

[32] The first statute RSA relies on is 7 GCA § 14108, which states, “From the time of the

service of the summons and of a copy of the complaint in a civil action . . . the court is deemed to

have acquired jurisdiction of the parties . . . .” Appellee RSA’s Br. at 18; 7 GCA § 14108 (2005).

PCMH and RSA both emphasize Dr. Philips was served in Guam, and that he has participated in

this case beyond contesting the personal jurisdiction of the Superior Court. Appellee PCMH’s Br.

at 6; Appellee RSA’s Br. at 7. The record shows that although service of the summons and

complaint did not strictly follow the governing rules and statutes,3 Dr. Philips has waived any

defect by making a general appearance and failing to object to any defects in service of process.

3
Guam has adopted a rule of strict compliance with statutory service requirements. Pineda v. Pineda, 2005
Guam 10 ¶ 18. “[J]urisdiction depends on the proper service of process or the waiver of any defect.” Id. ¶ 10 (quoting
M & K Welding, Inc. v. Leasing Partners, LLC, 386 F.3d 361, 364 (1st Cir. 2004)). The record reflects that the
summons and complaint were delivered to Dr. Philips’s place of business and left with an employee. As Dr. Philips
is being sued in a personal capacity, serving an employee—who does not seem to have been appointed an agent for
receiving process—may not have strictly complied with the statutory service requirements. But we emphasize that
Dr. Philips has waived any potential defect by his participation in this case and caution him that going forward, making
such arguments will result in appropriate sanctions.
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 16 of 22

See Kim v. Min Sun Cha, 2020 Guam 22 ¶ 45; Long-Term Credit Bank of Japan v. Superior Court,

2003 Guam 10 ¶ 43; RA, tab 32 at 1-5 (Answer – Denial Compl. & Countercls.).

[33] The second statute which RSA advocates grants jurisdiction is 7 GCA § 14109. Appellee

RSA’s Br. at 18. Section 14109 serves as Guam’s long-arm statute and lets Guam courts exercise

jurisdiction “on any basis not inconsistent with the Organic Act or the Constitution of the United

States.” 7 GCA § 14109 (2005). “[A] court analyzing personal jurisdiction under Guam’s long-

arm statute[] simultaneously analyzes the issue of constitutional due process.” Banes, 2012 Guam

11 ¶ 27. If Dr. Philips’s argument about being a nonresident defendant is made in good faith,

principles of Fourteenth Amendment due process require he have minimum contacts with Guam

“such that the maintenance of the suit does not offend ‘traditional notions of fair play and

substantial justice.’” PCI Commc’ns, Inc. v. GST Pacwest Telecom Haw., Inc., 1999 Guam 17 ¶

17 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Only if minimum contacts

exist will a nonresident defendant be subject to general (i.e., unlimited) or specific (i.e., limited)

jurisdiction. See id. ¶ 18. RSA correctly argues the Superior Court could properly exercise either

general or specific jurisdiction over Dr. Philips. Appellee RSA’s Br. at 15-21.

[34] We have adopted the rule that, “[i]f the nonresident defendant’s activities within a state are

‘substantial’ or ‘continuous and systematic,’ there is a sufficient relationship between the

defendant and the state to support [general] jurisdiction even if the cause of action is unrelated to

the defendant’s forum activities.” PCI Commc’ns, 1999 Guam 17 ¶ 19 (second alteration in

original) (quoting Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1287 (9th Cir. 1977)).

Thus, even if Dr. Philips is correct in arguing he is not a resident of Guam and his activities relating

to the judgment were not “local matter activit[ies],” see Appellant’s Br. at 1, the Superior Court

had personal jurisdiction over him. That Dr. Philips has been living and practicing medicine in
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 17 of 22

Guam for nearly a decade gives rise to general jurisdiction because Dr. Philips’s activities within

Guam are substantial, continuous, and systematic. See RA, tab 39 at 3 (Dec. & Order, Feb. 15,

2022). The Superior Court correctly found it had general jurisdiction over Dr. Philips, and such a

conclusion was not an abuse of discretion.

[35] Even if Dr. Philips’s activities had not been substantial, continuous and systematic,4

specific jurisdiction also lies because “a court may alternatively exercise ‘limited,’ or

‘specific’ jurisdiction, where the defendant’s contacts with the forum, though limited, are

sufficiently related to the cause of action.” PCI Commc’ns, 1999 Guam 17 ¶ 18 (quoting Abuan

v. Gen. Elec. Co., 735 F. Supp. 1479, 1482 (D. Guam 1990)). Guam has adopted the Ninth

Circuit’s three-prong test to determine whether limited jurisdiction is appropriate:

1. The nonresident defendant must do some act or consummate some transaction
with the forum or perform some act by which he purposefully avails himself of
the privilege of conducting activities in the forum, thereby invoking the benefits
and protection of its laws.

2. The claim must be one which arises out of or results from the defendant’s
forum-related activities.

3. Exercise of jurisdiction must be reasonable.

Id. ¶ 23 (quoting Data Disc, 557 F.2d at 1287).

[36] Dr. Philips has purposefully availed himself of the privilege of practicing medicine in

Guam, so the first prong is easily met. The cause of action is an interpleader brought by an LLC

doing business in Guam and of which Dr. Philips might still be a member.5 Thus, the second prong

is also satisfied because it arises out of Dr. Philips’s Guam-related activities. Finally, there has

4
At oral argument, Dr. Philips advocated for this court to adopt an unfairness exception to general personal
jurisdiction for individuals who do not wish to reside in Guam but are brought here by a series of unfortunate events.
We decline to create such an exception.
5
The question of who owns Dr. Philips’s stake in RSA after PCMH purported to win it at public auction is
the crux of the dispute in this interpleader action. See RA, tab 1 at 1-3 (Compl. Interpleader, July 7, 2020).
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 18 of 22

been no showing that exercise of jurisdiction would be unreasonable. We observe that Dr. Philips

has appeared and represented his interests across multiple actions in the federal and local courts in

Guam. The Superior Court did not invoke specific jurisdiction because it concluded it had general

jurisdiction over Dr. Philips, but we find specific jurisdiction provides another basis for affirming

the decision of the Superior Court.

[37] The Superior Court has personal jurisdiction over Dr. Philips, and it did not abuse its

discretion in denying his motion to dismiss.

3. This court echoes the Superior Court’s warnings about future invocation of
meritless arguments

[38] The Superior Court warned Dr. Philips that further filings found to be procedurally

improper would subject him to sanctions. See RA, tab 39 at 2 (Dec. & Order, Feb. 15, 2022). We

reject as meritless all other arguments raised by Dr. Philips in his brief. We echo the warning of

the Superior Court and add that we will not look kindly upon future “copy-and-paste” appeals. See

Conboy v. U.S. Small Bus. Admin., 992 F.3d 153, 158 (3d Cir. 2021).

D. We Issue a Pre-filing Order Limiting Dr. Philips’s Future Interlocutory Appeals

[39] Dr. Philips has received increasingly stern warnings from this court and the Superior Court.

We have considered Dr. Philips’s self-represented status in our repeated warnings—spanning

several cases—regarding his noncompliance with court rules and orders. We note the concern that

our suspension of GRAP 4.2 to let us reach the merits of Dr. Philip’s jurisdictional arguments may

set a poor precedent moving forward. Our dismissal of Dr. Philips’s two subsequent interlocutory

appeals signals we normally do not accept procedurally deficient interlocutory appeals. But we

recognize the delay that has been wrought in the past by Dr. Philips’s many procedurally deficient

and meritless appeals.
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 19 of 22

[40] The courts of Guam have the inherent power to regulate the activities of abusive litigants

by “imposing carefully tailored restrictions in appropriate circumstances.”6 Andrews, 483 F.3d at

1077; see also Wai Kam Ho, 2009 Guam 18 ¶ 8. We find persuasive, and adopt, the Tenth Circuit’s

test for imposing pre-filing orders against vexatious litigants: specifically, injunctions restricting

further filings are appropriate “where the litigant’s lengthy and abusive history is set forth; the

court provides guidelines as to what the litigant may do to obtain its permission to file an action;

and the litigant receives notice and an opportunity to oppose the court’s order before it is

implemented.” Andrews, 483 F.3d at 1077. We emphasize that a vexatious-litigant order “must

be narrowly tailored to closely fit the specific vice encountered.” De Long v. Hennessey, 912 F.2d

1144, 1148 (9th Cir. 1990).

[41] Dr. Philips has filed at least three interlocutory appeals that have been procedurally

deficient. He has copied and pasted his moving papers and briefs from one appeal to the next. He

has taken appeals barred by black letter law. His history of abusing the interlocutory appeals

process is lengthy. Our past orders emphasize the vexatious nature of Dr. Philips’s previous

interlocutory appeals. See Order at 4 (CVA20-016, Aug. 27, 2021) (“[W]e will entertain no further

motions in CVA20-002 or CVA20-016. Should Dr. Philips file any further frivolous pleadings or

motions, we will designate him a vexatious litigant and will order the clerk’s office to reject his

future filings.”); Order at 2 (CVA22-003, Nov. 10, 2022) (“This order shall serve as notice to Dr.

Philips that any other flagrant disregard of the rules of practice before this court will not be treated

with the same leniency that the court has extended to him in the past, and will instead be

appropriately sanctioned.”); Order to Show Cause at 4 (CVA22-009, Nov. 28, 2022) (“[B]ecause

Dr. Philips has been afforded more than ample leniency and has been given fair warning by this

6
Although we limit our pre-filing order in this case to future interlocutory appeals, on remand the Superior
Court may exercise its inherent power to regulate Dr. Philips’s abusive activities in the trial court.
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 20 of 22

court, the court finds it necessary and appropriate to sanction Dr. Philips monetarily for his

repeated violations of the rules and orders of this court and for his continued abuse of process. See

GRAP 21.1, 32.”).

[42] In deciding whether to restrict a litigant’s access to the courts, “[u]ltimately, the question

the court must answer is whether a litigant who has a history of vexatious litigation is likely to

continue to abuse the judicial process and harass other parties.” Safir v. U.S. Lines, Inc., 792 F.2d

19, 24 (2d Cir. 1986). We find it likely that this history will continue, and we issue a pre-

filing review order. See United States v. Howe, No. 21-35682, 2021 WL 7161078, at *1 (9th Cir.

Dec. 8, 2021) (contemplating a pre-filing review order to limit “further frivolous interlocutory

appeals”). Thus, we will issue a separate administrative order detailing what Dr. Philips must do

to bring future interlocutory appeals:

1. Dr. Philips must obtain in writing that a Superior Court judge finds the
interlocutory order involves a controlling question of law on which there is
substantial ground for difference of opinion and that an immediate appeal from
the order may materially advance the ultimate termination of the litigation. If
he obtains such a writing, the Supreme Court, in its discretion, may permit an
appeal to be taken from this order, if application is made to the Supreme Court
within ten days after the entry of the order: provided, however, that application
for an appeal shall not stay proceedings in the Superior Court unless the
Superior Court judge or the Supreme Court shall so order. See 28 U.S.C.A. §
1292(b).

2. If a Superior Court judge will not certify the interlocutory appeal in writing, Dr.
Philips must move for leave to file a petition for permission to appeal in the
Superior Court. Dr. Philips must submit a copy of the pre-filing order and a
copy of the proposed petition with every motion for leave. This will let a
reviewing judge assess whether the proposed filing is made in good faith, and
the motion shall be granted only if the petition meets the requirements of GRAP
4.2. No appeal from the denial of a motion for leave will be entertained by this
court. See Molski v. Mandarin Touch Rest., 347 F. Supp. 2d 860, 868 (C.D.
Cal. 2004).

[43] Pre-filing orders are an extreme remedy that should rarely be used. De Long, 912 F.2d at

1147. “A court should enter a pre-filing order constraining a litigant’s scope of actions in future
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 21 of 22

cases only after a cautious review of the pertinent circumstances.” Evergreen Dynasty Corp., 500

F.3d at 1057. Still, “[f]lagrant abuse of the judicial process cannot be tolerated because it enables

one person to preempt the use of judicial time that properly could be used to consider the

meritorious claims of other litigants.” De Long, 912 F.2d at 1148; see also O’Loughlin v. Doe,

920 F.2d 614, 618 (9th Cir. 1990). We are convinced that a pre-filing order is justified and

necessary to prevent Dr. Philips from filing any further vexatious interlocutory appeals.

[44] We note that a litigant must be given an opportunity to oppose a court’s pre-filing order

before it is effective. Andrews, 483 F.3d at 1077. Our rules also require “notice and a reasonable

opportunity to respond.” Guam R. App. P. 21.1(c). The injunction limiting Dr. Philips’s filing of

interlocutory appeals was initially made temporary until he had an opportunity to respond. See

Fink v. Shemtov, 103 Cal. Rptr. 3d 509, 519 (Ct. App. 2010) (“[A] prefiling order constitutes an

injunction . . . .”). His written response does not adequately explain why we should not enter the

pre-filing order. Entry of the pre-filing order is justified and necessary to prevent Dr. Philips from

filing any further vexatious interlocutory appeals. On our own initiative, this pre-filing order shall

issue, and the injunction limiting Dr. Philips’s filing of interlocutory appeals is now permanent.

[45] We emphasize that any future appeals by Dr. Philips will not stay enforcement of the

judgment against him, unless he posts a supersedeas bond or obtains a stay of judgment without

bond.

V. CONCLUSION

[46] Dr. Philips’s petition for permission to appeal is granted because it will materially advance

the termination of litigation and clarify further proceedings by addressing concerns of judicial

efficiency. PCMH’s cross-petition for permission to appeal is denied because it fails to show any

of the factors in 7 GCA § 3108(b) are met. The decision of the Superior Court is AFFIRMED on
RSA-Tumon, LLC v. Pitt Cnty. Mem’l Hosp., Inc., 2023 Guam 8, Opinion Page 22 of 22

the merits7 because the court correctly found it had subject matter jurisdiction and personal

jurisdiction over Dr. Philips. Finally, a pre-filing order shall issue to Dr. Philips because it is

justified and necessary to prevent him from filing any further vexatious interlocutory appeals. The

matter is REMANDED for further proceedings not inconsistent with this opinion.

/s/ /s/
F. PHILIP CARBULLIDO KATHERINE A. MARAMAN
Associate Justice Associate Justice

/s/
ROBERT J. TORRES
Chief Justice

7
Despite the contention that we “dismiss[ed] . . . all petitioner[’s] appeals never on [the m]erit[s] but on
administration issues,” Show Cause at unnumbered p. 26 (Apr. 10, 2023), we call to Dr. Philips’s attention that the
resolution of this appeal is on the merits. Future attempts to relitigate jurisdiction in this case will result in appropriate
sanctions.