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FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN St. Thomas, VI 00804 Counsel for Plaintiff Gerald E. Hodge, Jr. LORELEI FARRINGTON, ESQ. P.O. Box 1450 St. Thomas, VI 00804 Counsel for Defendants Virgin Islands Water and Power Authority and Board of Director CARROLL, Judge AMENDED MEMORANDUM OPINION' (Filed: December 22 , 2011) THIS MATTER is before the Court on several motions brought on behalf of Defeng Virgin Islands Water and Power Authority (“WAPA”) and Board of Directors (“the Boar Directors, Motion to Amend Motion to Dismiss Board of Directors, Amended Motion to Dis ' This Amended Memorandum Opinion corrects certain language and footnote errors in the initial Memora Opinion dated September 20, 2010. Farrington, Esq. and Mark Kragel, Esq. Plaintiff Gerald E. Hodge, Jr. is represented by Archie Jennings, Esq. kee KKK KKK GERALD E. HODGE, JR., ) ) CIVIL NO. ST-09-CV-94 Plaintiff, ) ) ACTION FOR EMPLOYMENT v. ) DISCRIMINATION ) VIRGIN ISLANDS WATER AND POWER ) JURY TRIAL DEMANDED AUTHORITY and BOARD OF ) DIRECTORS, ) ) Defendants. ) ) ARCHIE JENNINGS, ESQ. P.O. Box 442 ants d”).? On behalf of the Board, Defendants’ counsel has filed a Motion to Dismiss Defendant Board of miss Board of Directors, and Motion to Deem Conceded the Amended Motion to Dismiss. On behalf ndum * Defendants Board of Directors and the Virgin Islands Water and Power Authority are represented by Loreli Gerald E. Hodge, Jr. v. VI. Water & Power Authority and Board of Directors Civil No. ST-09-CV-94 Amended Memorandum Opinion of WAPA, Defendants’ counsel has filed a Motion to Dismiss and Motion to Deem Conceded the Motion to Dismiss. For the reasons stated below, the Court will grant and deny the pending motions as described more particularly below. BACKGROUND Plaintiff Gerald E. Hodge is a citizen of the United States and a practicing Rastafarian who expresses his beliefs by wearing his hair in dreadlocks. (Compl. § 2.) He has employed for more than fifteen years by WAPA as a maintenance mechanic in the distribution section of the power facility in St. Thomas, Virgin Islands. Ud. | 3.) Hodge { been water sina senior position, and by virtue of his experience is in a position to serve as an acting supervisor with the attendant higher wages and benefits. (/d. 4 9.) However, Hodge’s supervisor cont to assign less senior personnel to act when he was absent, and also assigned Hodge overtime pay assignments than all other employees in his section. (/d.) inued fewer Hodge made numerous complaints about this unequal treatment and questioned whether his religious beliefs were the underlying reasons for the practice. (/d. J 10.) Hodge tried various means to address this matter, but no action was ever implemented by WAPA to assure tl would receive equal treatment. (/d. § 11.) Hodge filed a complaint with the Equal Employ Opportunity Commission (“EEOC”), and was given a right to sue letter on November 25, (Compl. Attach. 2.) On February 25, 2009, Hodge filed the instant lawsuit. In his Comg Hodge alleges that he has been injured and that he suffered a loss of esteem, loss of in humiliation and other damages. (/d. §§ 13, 19.) He sues under Title VII of the Civil Righ of 1964 in Counts I and II, and for violation of his constitutional rights under Count III. (C q§ 15, 18, 22.) Hodge requests actual compensatory damages and punitive damages Complaint. nat he yment 2008. plaint, come, ts Act ompl. n his Gerald E. Hodge, Jr. v. V.I. Water & Power Authority and Board of Directors Civil No. ST-09-CV-94 Amended Memorandum Opinion On May 18, 2009 and July 30, 2009, WAPA filed a Motion to Dismiss and Mot Deem Conceded the Motion to Dismiss, respectively. The Board filed a Motion to Di Defendant Board of Directors on July 13, 2009, and on July 15, 2009, it filed a Motion to A Motion to Dismiss Defendant Board of Directors and an Amended Motion to Dismiss Defe Board of Directors. On August 17, 2009, the Board filed a Motion to Deem Conced¢ Amended Motion to Dismiss. L MOTION TO DEEM CONCEDED THE AMENDED MOTION TO DISMISS AND MOTI ion to smiss imend ‘ndant sd the N_TO DEEM CONCEDED THE MOTION TO DISMISS As a preliminary matter, the Court will deny WAPA’s Motion to Deem Conceded the Motion to Dismiss and the Board’s Motion to Deem Conceded the Amended Motion to Dismiss (“Motions to Deem Conceded”). The record reflects that Hodge did not respond to the Mot ion to Dismiss and his Opposition to the Motion to Dismiss Board of Directors was filed out of time.” Regardless, the fact that a party has not filed a response to a motion to dismiss do es not excuse the Court from determining whether the moving party is entitled to the relief requested. Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990) (the court must determine whether the facts entitle the moving party to judgment even without an oppositic ntoa motion for summary judgment); GRS Dev. Co. v. Jarrett, Civ. No. 596/2001, 2003 WL 21134437, at *2 (Terr. Ct. Apr. 10, 2003) (when a party has filed a Motion to Deem Conctded a Motion for Summary Judgment, “[a] court first must determine whether the moving party is entitled to summary judgment as a matter of law.”). Pursuant to LRCi 7.1(e)(3),* the Court prohibited from deciding a motion without receiving a response; nevertheless, that is a f 3 is not rt. ar cry Hodge filed Plaintiff's Opposition to Motion to Dismiss on October 26, 2009. The Opposition, however, does not address any of the issues raised by Defendants in the Motions to Dismiss. The Court is unclear which mption to dismiss Hodge is responding to. 4 The Federal Rules of Civil Procedure and Local Rules of Civil Procedure are applicable to matters before the Superior Court whenever they are not inconsistent with the Rules of the Superior Court. SUPER. CT. R. 7. Gerald E. Hodge, Jr. v. VI. Water & Power Authority and Board of Directors Civil No. ST-09-CV-94 Amended Memorandum Opinion from the Court deeming that the original motion has been conceded due to the lack of a resp Therefore, the Court will deny the Motions to Deem Conceded. II. MOTION TO DISMISS DEFENDANT BOARD OF DIRECTORS, MOTION TO AMEND Mc DONSE. TION TO DISMISS DEFENDANT BOARD OF DIRECTORS AND AMENDED MOTION TO DISMISS BOARD OF DIRECTORS A. Standard of Review Rule 12(b)(1) of the Federal Rules of Civil Procedure permits the Court to assess whether it has subject matter jurisdiction over a case. Essentially, Rule 12(b)(1) is “the trial court > power to hear the case . . . and the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Although a defendant has not filed a 12(b)(1) motion, the Court, sua sponte, is permitted to raise the issue of subject matter jurisdiction. See Daily v. ¢ by ity of Phila., 98 F. Supp. 2d 634, 636 (E.D. Pa. 2000) (“Lack of subject matter jurisdiction may be raised at any time by the court sua sponte.”) Further, Rule 12(b)(6) of the Federal Rules of Civil Procedure states that a dismissal of claims is appropriate when a complaint has “fail[ed] to state a claim upon which relief ¢an be granted.” As it considers such a motion, the Court will separate the factual allegations from the legal conclusions, and accept the factual allegations as true. Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937, 1949 (2009); Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). The Court will construe the Complaint in the light most favorable to the Plaintiff. Phillips, 515 F.3d at 231. Additionally, the Court will determine whether, “under any reasonable reading lof the complaint, the plaintiff may be entitled to relief.” Id. Rule 12(b)(6) motions test the sufficiency of the pleadings and are designed to “screen out cases” in which there is no remedy for the wrong alleged or no relief could possibly be granted. Port Auth. of N.Y. & N.J. v. Arcadian Corp., 189 F.3d 305 (3d Cir. 1999). Rule Gerald E. Hodge, Jr. v. V.I. Water & Power Authority and Board of Directors Civil No. ST-09-CV-94 Amended Memorandum Opinion 12(b)(6) motions to dismiss may allege that the complaint states a legal theory that cognizable as a matter of law. B. Discussion In the Motion to Amend Motion to Dismiss Defendant Board of Directors, the Ss not Board requested leave to amend the Motion to Dismiss Defendant Board of Directors to include the defense of improper service. This is a pro forma motion that should be granted. In the Motion to Dismiss Defendant Board of Directors and the Amended Mot on to Dismiss Defendant Board of Directors, Defendants contends that Hodge has failed to state a claim upon which relief can be granted against Defendant Board of Directors as a matter of law, and that the Complaint should, therefore, be dismissed. The Court agrees that the Mot Dismiss should be granted but, as noted below, the Court does not agree that the Mot Dismiss the Board of Directors should be granted for the reasons advanced by the Board. The Defendants’ contention is that the Board of Directors has delegated the r operations of WAPA to the Executive Director, and for that reason, the day-to-day operati WAPA are controlled by the Executive Director — not the Board of Directors. For this r the Board argues that the functions of the Directors as Board Members are remote from th to-day operation and employment decisions of WAPA. ion to lon to poutine ons of Pason, e day- The Court agrees that the Board of Directors of WAPA is not a proper party to this lawsuit, but not for the reasons suggested by WAPA. Indeed, if it were solely a question whether or not the Board of Directors had ultimate authority of operating WAPA, it is cleé it does, since the statute allows that the powers of WAPA shall be exercised by a Gové Board consisting of the members of WAPA acting as a board. V.I. CODE ANN. tit. 30, § (1998). The Virgin Islands Code also provides for the appointment of an Executive Direc the Board of Directors, and allowing by its bylaws for the delegation to the Executive Dire« about ar that prning |O4(a) tor by ttor or Gerald E. Hodge, Jr. v. V.I. Water & Power Authority and Board of Directors Civil No. ST-09-CV-94 Amended Memorandum Opinion to other officers, agents or employees such of the powers of WAPA that the Board of Dir deems to be proper. Jd. § 104(c). The Board has supplied evidence to the Court that it has delegated the powers as g manager and chief executive officer of WAPA to the Executive Director who is in g charge of its activities, officers, personnel and property. See Bylaws of the Virgin Islands ectors eneral eneral Water and Power Authority, Article XXIV. The Executive Director in turn shall: 1. execute the development of WAPA in accordance with the policies set up by the Governing Board; 2. present policy problems, programs, rules and regulations, and other appropriate matters to the Governing Board; 3. direct and coordinate the activities of the officers, consultants, and other personnel of WAPA; and 4. promote the most effective public relations for the Authority, etc. In addition, the bylaws enumerate powers of the Executive Director in connection with the routine operation of WAPA, but caution that the enumeration of the specific powers is simply by way of example, and is not meant to limit the specific powers of the Executive Director as the executive officer of WAPA. chief The fact that the Board may have delegated its powers of running the daily operations to the Executive Director does not lead this Court to conclude that the Board has divested itself of the control of WAPA. Firstly, the delegation of its powers is limited by such limitations as may be imposed by the Governing Board. /d. Because there is no restriction on what limitation be imposed, it is clear that ultimate control of WAPA is in the hands of the Board. Als s may o, the statute specifically provides that the powers of WAPA shall be exercised by the Governing Board, and that the Board may delegate its powers and duties to an Executive Director as it 4 may deem proper.” 30 V.LC. § 104(c). Since the final authority to determine what is the proper delegation rests with the Board, the Board is the ultimate authority in running WAPA. authority to run the public corporation were the only consideration before the Court, the If the Court Gerald E. Hodge, Jr. v. V.I. Water & Power Authority and Board of Directors Civil No. ST-09-CV-94 Amended Memorandum Opinion would have to deny WAPA’s motion. There are, however, other factors in this case inva the waiver of sovereign immunity by WAPA which leads the Court to believe that the must be dismissed as a party defendant. WAPA was created in 1964 by the Virgin Islands Legislature as “a public corpo plving Board ration and independent governmental instrumentality” with its own governing board for the purppse of developing and providing water and electric power services for the people of the Virgin Is V.I. CODE ANN. tit. 30 §§ 103-105; V.. Pub. Serv. Comm’n vy. V.I. Water & Power Auth., 4 478, 488 (V.I. 2008). From the time of its inception, WAPA was armed with the power “ lands. 9 VI. to sue and be sued in its own corporate name.” 30 V.LC. § 105(4); Cyprian v. Butcher, No. SX-0B-CV- 515, 2010 WL 2025760, at *2 (Super. Ct. May 17, 2010). By including the language allowing WAPA “to sue and be sued,” the Legislature waived WAPA’s sovereign immunity. Jd.; sé e also Rosa y. VL. Hous. Auth., 43 V.1. 131, 136 (Terr. Ct. 2001) (by conferring the Virgin Islands Housing Authority (“VIHA”) with the power to sue and be sued, the government waived sovereign immunity with respect to VIHA as a separate entity from the government). Once one acknowledges that the government has waived WAPA’s sovereign immunity with rega rds to litigation, one must strictly follow the statute which allows such suits against this independent governmental entity by suing in accordance with the terms of the statute. Jrwin v. Dep't of Veterans Affairs, 498 U.S. 89, 94 (1990); Vester v. Potter, No. 1:00 cv 10063, 2003 WL 21314051, at *1 (M.D.N.C. June 4, 2003). The Legislature did not waive sovereign immunity with respect to the Board or otherwise designate that the Board may sue and be sued. 30 V.I.C. § 105(4). Therefore, the Board is an improper party and this Court lacks subject matter jurisdiction to hear a suit against it. In the Amended Motion to Dismiss Defendant Board of Directors, WAPA contends that service was improper on the Board, and that the Complaint should, therefore, be dismissed Gerald E. Hodge, Jr. v. V.I. Water & Power Authority and Board of Directors Civil No. ST-09-CV-94 Amended Memorandum Opinion against the Board pursuant to FED. R. Civ. P. 12(b)(4)._ In light of the Court’s dismissal Board as an improper party and the Court’s lack of subject matter jurisdiction for reasons above, it is not necessary for the Court to decide this issue. II. MOTION TO DISMISS VIRGIN ISLANDS WATER AND POWER AUTHORITY A. Standard of Review Rule 12(b)(6) of the Federal Rules of Civil Procedure standard of review that app the above Motion to Dismiss Defendant Board of Directors, Motion to Amend Mot Dismiss Defendant Board of Directors and Amended Motion to Dismiss Board of Dit of the stated lies to lon to ectors applies in equal force to Defendants’ Motion to Dismiss Virgin Islands Water and Power Authority. B. Discussion In the Motion to Dismiss, WAPA contends that Hodge has improperly served process on WAPA, has failed to notify WAPA of the commencement of an action against it, and has to request waiver of service. Therefore, the Complaint should be dismissed without pre failed udice. The Court agrees with WAPA and will dismiss the Complaint without prejudice. The Court will allow Hodge thirty (30) days from the date of this Memorandum Opinion and Order to properly serve WAPA with a copy of the summons and Complaint. WAPA’s assertion is that Hodge has failed to serve process on WAPA in accordance the requirements under FED. R. Civ. P. 4(h) which, provides for personal service of p e with rocess rather than by certified mail, the method that Hodge chose. In absence of sufficient seryice of process, WAPA further asserts that Hodge has failed to notify WAPA that an action had been commenced. Lastly, WAPA contends that Hodge has failed to request waiver of seryice in compliance with FED. R. Civ. P. (4)(d)(1)(A)Gi) which provides that the notice and reques be in writing and addressed to an officer, managing or general agent or any other t must agent Gerald E. Hodge, Jr. v. VI. Water & Power Authority and Board of Directors Civil No. ST-09-CV-94 Amended Memorandum Opinion authorized by appointment or by law to receive service of process. The Court agrees with WAPA that Hodge has failed to effectuate proper service of process and has failed to request waiver of service. Rule 4(j) of the Federal Rules of Civil Procedure provides for service upon a municipal entity. Specifically, Rule 4(j) stipulates that “{a] state, a municipal corporation, or any state-created governmental organization that is subject to suit must be served by: (A) delive copy of the summons and of the complaint to its chief executive officer... .” FED. R. Cly. other ring a Pro. 4(j). Since Hodge did not properly serve WAPA by delivering a copy of the summons and Complaint to WAPA’s Chief Executive Officer, service on WAPA was improper. Assu but not deciding, that Rule 4(h) of the Federal Rules of Civil Procedure applies to WAPA ming, since by WAPA’s assertion it is a corporation, Hodge did not follow the provisions for waiver of service, under Rule 4(d).° Therefore, the Complaint must be dismissed without prejudice. Court will allow Hodge to properly serve WAPA within thirty (30) days from entry of the d this Memorandum Opinion and Order. CONCLUSION The ate of Defendants’ Motion to Deem Conceded and Motion to Deem Conceded the Motion to Dismiss will be denied, since pursuant to LRCi 7.1(e)(3) the Court is not prohibited from deciding on a motion without receipt of Hodge’s response. Defendants’ Motion to Dismiss will be granted without prejudice, since Hodge has failed to properly serve process on W however, the Court will allow Hodge thirty (30) days from the date of entry of the Memora Opinion and Order dated September 20, 2010 to properly serve WAPA. Defendants’ Mot ° Specifically, Rule 4 of the Federal Rules of Civil Procedure provides: “(1) Requesting a Waiver. An ind APA; ndum ion to vidual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commen¢ed and request that the defendant waive service of a summons. The notice and request must: (A) be in writing addressed: (i) to the individual defendant; . . .”. and be Gerald E. Hodge, Jr. v. VI. Water & Power Authority and Board of Directors Civil No. ST-09-CV-94 Amended Memorandum Opinion Dismiss Defendant Board of Directors pursuant to FED. R. Civ. P. 12(b)(6) will be granted name. Defendants’ Motion to Amend will be granted since it is a pro forma motion. Fina light of the dismissal of the Complaint against the Board, the Defendants’ Amended Mot Dismiss Defendant Board of Directors will granted. A separate Order of even date will foll DATED: December ZA. , 2011 Nunc Pro Tunc to September 20, 2010 since the Board is not a proper party pursuant to the waiver of sovereign immunity of WAPA contained in 30 V.I.C. § 105(4) which provides that WAPA may sue and be sued in its corporate Hy, in ion to "JAMES S.'CARROLL III Judge of the Superior Court of the Virgin Islands ATTEST: VENETIA H. VELAZQUEZ, ESQ. C of the rt LORI BOYNES-TYSON 7, / Court£lerk Supervisor / ZIZ2! IZ!