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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX BENJAMIN PRENTICE, SX-10-CV-122 Plaintiff, Vv. SUNNY ISLES DEVELOPERS, LLC., METRO Door, INC. ACTION FOR DAMAGES Defendant. SUNNY ISLE DEVELOPERS, LLC., Third Party Plaintiff Vv. FOOTLOCKER RETAIL, INC., Third Party Defendant JURY TRIAL DEMANDED ORDER THIS MATTER is before the Court on Defendant Metro Door’s Motion to Dismiss AND Motion to Sever or Bifurcate, filed on May 20, 2013 and February 27, 2014 respectively. In accordance with the Memorandum Opinion of even date, it is hereby: ORDERED that Defendant’s Motion to Dismiss is DENIED; and it is further ORDERED that Defendant’s Motion to Sever or Bifurcate is DENIED DONE and so ORDERED this 13 day of August, 2015. Estrella George / HAROLD W. ¥. WILLOCKS Acting Clerk of the Court Administrative Judge of the Superior Court “ak Fol NOT FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX BENJAMIN PRENTICE, SX-10-CV-122 Plaintiff, Vv. SUNNY ISLES DEVELOPERS, LLC., METRO Door, INC. ACTION FOR DAMAGES Defendant. SUNNY ISLE DEVELOPERS, LLC., Third Party Plaintiff Vv. FOOTLOCKER RETAIL, INC., Third Party Defendant JURY TRIAL DEMANDED MEMORANDUM OPINION THIS MATTER is before the Court on Defendant Metro Door’s (hereinafter “Defendant” or “Metro Door”) Motion to Dismiss Sunny Isle Developers, LLC’s Crossclaim pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. In addition, Metro Door moves to dismiss pursuant to Federal Rule of Civil Procedure Rules 12(b)(4) and 12(b)(5) for insufficient process and insufficient service of process and Rule 12(b)(6) failure to state a claim on which relief can be granted as to Sunny Isle Developers, LLC’s Crossclaim. The motion was filed on May 20, 2013. Plaintiff Sunny Isles Developers, LLC (hereinafter “Plaintiff” or “SIDL”) filed an opposition to the motion to dismiss on June 10, 2013. Metro Door replied to SIDL’s opposition on September 16, 2013. Subsequently, on August 26, 2013, Metro Door filed a Motion to Deem its Motion to Dismiss Sunny Isles Developers, LLC Crossclaim as Conceded. SIDL filed its opposition on August 28, 2013. Metro Door filed a Motion Prentice v. Sunny Isle Developers, LLC et. al SX-10-CV-122 MEMORANDUM OPINION for Ruling on May 21, 2015.! For the following reasons, the Court will deny Defendant’s motion to dismiss and motion to sever or bifurcate. FACTS AND PROCEDURAL HISTORY This case arises out of a personal injury claim stemming from an alleged incident that occurred in October of 2008. Plaintiff Benjamin Prentice (hereinafter “Plaintiff” or “Prentice”), a manager at the Champs store in Sunny Isle Shopping Center, reported to work and was electrocuted when he attempted to operate a security door and an alleged malfunction occurred. As a result of the electrical shock, the Plaintiff sustained injuries requiring surgery. The Plaintiff filed a verified complaint on March 12, 2010 in which the Defendant Metro Door was not named. On April 19, 2012, the Court granted Plaintiff's Revised Motion to Amend the Complaint to add Metro Door as a Defendant. The Revised Amended Complaint (hereinafter “the Complaint”) alleged negligence claims against SIDL and separate claims against Metro Door. With regard to Metro Door, the Complaint alleged that the security door was installed, and repaired by Metro Door and that several complaints had been made about electrical shocks from the security door after the Metro Door installed the door. On June 28, 2013, this Court dismissed all of those claims against Metro Door as time barred. On April 24, 2013, this Court granted SIDL’s request to file a crossclaim against Metro Door for indemnification and/or contribution. Metro Door moves to dismiss this crossclaim for failure to set forth facts on which a claim for contribution or indemnification could be granted. In addition, Metro Door moves to dismiss pursuant to Rules 12(b)(4) and 12(b)(5) for insufficient process and insufficient service of process. 1 On April 19, 2015 the Court did not realize there were two outstanding motions, therefore when it stated there were no outstanding motions it was incorrect. Prentice v. Sunny Isle Developers, LLC et. al SX-10-CV-122 MEMORANDUM OPINION In the opposition brief, the SIDL argues that the Defendant’s motion should be denied because the Revised Amended Complaint and facts in the pleadings provide detailed outlined that establish the cause of action against Metro Doors. SIDL further points out that the claims arise out of the same transaction or occurrence as the original action. Standard of Review 12(b)(6) Motion To Dismiss Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may test the sufficiency of the allegations contained in the complaint by moving to dismiss for failure to state a claim. Ditri v. Coldwell Banker Residential Affiliates, Inc., 954 F.2d 869, 871 (3d Cir. 1992). In considering whether a complaint should be dismissed for failure to state a claim upon which relief can be granted, court must accept all well-pleaded allegations in complaint as true and view them in light most favorable to plaintiff. In re Tutu Water Wells Contamination Litig., 40 V.I. 279 (1998); see also Robleys v. HOVENSA, L.L.C., 49 V.I. 491, 502 (V.I. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Factual allegations need only be sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the Complaint are true (even if doubtful in fact).” Id. In other words, a [cross]claim requires a complaint with enough factual matter (taken as true) to suggest the required element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (internal quotation marks omitted). Ergo, to survive Metro Door’s Rule 12(b)(6) motion to dismiss, SIDL is required to present a cross-claim with enough factual matter, taken as true, to suggest that Metro Door is liable for contribution or indemnity. When determining whether the allegations in a complaint are sufficiently pled, a court must engage in a three step inquiry. First, the court must note the elements a plaintiff must sufficiently plead to state a claim. Second, the court must identify all allegations that are conclusory and not Prentice v. Sunny Isle Developers, LLC et. al SX-10-CV-122 MEMORANDUM OPINION entitled to the assumption of truth. These conclusions can take the form of either legal conclusions couched as factual allegations or naked [factual] assertions devoid of further factual enhancement. Finally, the court should assume the veracity of well-pleaded factual allegations and then determine whether they plausibly give rise to an entitlement of relief. If there are sufficient remaining facts that the court can draw a reasonable inference that the defendant is liable based on the elements noted in the first step, then the claim is plausible.” Courts cannot dismiss an action for failure to state a claim upon which relief can be granted unless it appears beyond a reasonable doubt that plaintiff can prove no set of facts in support of claims as pled which would entitle plaintiff to relief. Bell v. Chase Manhattan Bank, 40 V.I. 377 (1999). DISCUSSION Metro Door moves this Court to dismiss on two grounds (1) SIDL’s crossclaim for contribution and indemnity failed to state a claim for relief against Metro Door and (2) the Court lacks personal jurisdiction over Metro Door because of defective and insufficient service of process. This court will only address the first argument based on Metro Doors’ failure to cite binding legal authority. SIDL failed to plausibly plead factual allegations such that give rise to Metro Door’s liability for contribution and indemnification. The first issue is whether SIDL plausibly plead the common law claim of contribution in its crossclaim. In their Motions, none of the parties cited binding legal authority. Metro Door relies heavily on In re Manbodh Asbestos Litigation’ and the Restatement (Third) of Torts §23 2 Brady v. Cintron, 55 V.1. 802, 823, 2011 (V.I. 2011) (Under Robles, Twombly, and Igbal, courts must undertake a three step analysis to determine whether a complaint states a plausible claim for relief.) 3 47 V.I. 375, 395 (Super. Ct. 2006). Prentice v. Sunny Isle Developers, LLC et. al SX-10-CV-122 MEMORANDUM OPINION as the substantive law for contribution and indemnification. However, in light of Connor, the Superior Court is charged with shaping the law of the Virgin Islands and can no longer mechanistically apply the Restatements.* Although the doctrines of contribution and indemnification are long standing concepts, the Virgin Islands has yet to establish binding precedent. In the absence of binding precedent, in order to determine the elements of contribution and indemnification that SIDL must plead to sufficiently state a crossclaim, the court must perform a Banks? analysis to determine the common law. Ergo, the Court must balance the following non-dispositive factors: “(1) whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions; and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.” (“[W]e recently explained [in Connor] that the Superior Court is not bound by this Court's ‘prior erroneous reliance’ on 1 V.LC. § 4.”). Walters v. Walters, 60 V.I. 768, 777 n. 11 (V.I. 2014) For the reasons stated above, this court will balance the non-dispositive factors as determined in Banks. For purposes of identifying the common law and first non-dispositive factor required for the Banks analysis, this court agrees that based on case law in Vandenhouten v. Olde Towne Tours, Kevin Manbodh v. Hess Oil Virgin Islands, and Beloit Power Sytems Inc. V. Hess Oil Virgin Islands corp., the Restatement (Third) of Torts §23 has been the adopted rule. Based on these cases: 4 Government of the Virgin Islands v. Connor, 60 V.1. 597, 602 (V.I. 2014). See also Brunn v. Dowdye, 59 VI. 899, 911 n.10 (V.I. 2013)(“[ T]he Restatements no longer constitute the rules of decision in Virgin Islands courts.”). 5 Banks v. International Rental & Leasing Corp., 55 V.1. 967 (V.I. 2011). Prentice v. Sunny Isle Developers, LLC et. al SX-10-CV-122 MEMORANDUM OPINION A cause of action for common law contribution generally may lie where two or more persons become liable in tort for the same injury to person or property, even though judgment has not been recovered against all or any of them. See Gomes v. Brodhurst,394 F.2d 465, 466-68, 6 V.I. 163 (3d Cir. 1968) (recognizing a right to contribution in the Virgin Islands); Beloit Power Sys. v. Hess Oil VI. Corp., 18 V.I. 317, 324 (D.V.I. 1981) (acknowledging that a party may be liable in contribution even if he is not a co-defendant); V.I. CODE ANN. tit. 5, § 1451(d) (1997). Practice in other Common law jurisdictions. Looking into the common law of other jurisdictions is substantially more helpful with respects to this court’s analysis. In majority of the states, contribution claims are brought within the original lawsuit as a cross-claim against a co-defendant.® While only persuasive, in Washington v. Washington Hospital Center, 579 A.2d 177 (D.C. 1990). The court determined that by failing to “assert a claim for contribution -- either through a cross-claim or by a special jury verdict request -- preclude[d] [731] application ofa pro rata credit." Id. at 186. The court emphasized that one could reasonably “have been expected to safeguard any legitimate claim it might have to lessen the burden of a plaintiff's verdict' by asserting a cross-claim for contribution . . . or an equivalent request for a determination by the jury of the settling defendants' negligence." Id. at 187-88, quoting Hall v. General Motors Corp., 647 F.2d 175, 184, 207 U.S. App. D.C. 350 (1980). © See Anderson v. Gabrielson, 126 N.W.2d239 (Minn.1964)( stating that Contribution in proportion to percentage of fault is allowed. A contribution plaintiff may for contribution in the underlying action or in a separate action.) See also Consolidated Freightways v. Osier, 605 p.2D 1076 (Mont.1979). , Metro Aviation, Inc. V. United States, 305 P.3d 832(2013), Am. Ins. Co. v. Material Transit Inc., 446 A.2d 1101, Prentice v. Sunny Isle Developers, LLC et. al SX-10-CV-122 MEMORANDUM OPINION New York, Pennsylvania, Ohio, Montana, Nevada, Rhode Island, South Dakota, Hawaii, Illinois, Maryland, Missouri as well as many other states allow contribution to be asserted in a separate action or by cross-claim, counterclaim or third-party claim in a pending action. New York law states that “two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought, or a judgement has been rendered against the person from whom contribution is sought” N.Y.C.P.L.R.14. In looking at the various cases in the different jurisdictions, the purpose of allowing contribution claims to be brought in the initial action, and prior to judgment is one of policy and the preservation of judicial economy as well as safeguard any legitimate claims that the claimant may have to lessen its burden of the pending verdict. Approach Representing the Soundest Rule for the Virgin Islands The third non-dispositive factor to determine what the soundest rule of the Virgin Islands weighs heavily towards that of the majority. It is most beneficial to allow claims of contribution and indemnity to come in the original lawsuit as either cross-claim, counterclaim, or third party claim. This is to not only preserve any legitimate claims that may be had between codefendants, but it also avoids the necessity to re-litigate the issue which in turn benefits the judicial economy. This court will adopt the current majority rule finding them to be the soundest rule of the Virgin Islands. In applying the majority rule of contribution to this case, the Plaintiffs do not have to meet the elements of contribution, but must only allege that Metro Door may be liable for the same harm. Plaintiff must allege facts that ‘raise a right to relief above the speculative level.” Bell Atl. Corp v. Twombly, 550 U.S. 555. Prentice v. Sunny Isle Developers, LLC et. al SX-10-CV-122 MEMORANDUM OPINION Additionally, Tombly explains that a “complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove the facts or will ultimately prevail on the merits. 127 S.Ct. 1964-1965. The cross claim from Sunny Isle arises out of the same common nucleus of operative fact as the original action. The Plaintiff in the original action has brought a negligence claim against both SIDL and Metro Doors as co-defendants. SIDL’s claim is that it has no liability for the harm caused to plaintiff and that any fault for harm is the result of the negligence of Metro Doors. The court finds that this is sufficient to bring a claim of contribution and that Metro Doors may have in fact brought this motion prematurely. This is because there are not sufficient facts for this court to determine that they were not negligent or liable. Additionally, a cross-claim by SIDL avoids the re-litigation of these facts at a different date which spares the court of unnecessary extra costs. The Virgin Islands law does acknowledge both joint and several liability therefore it is this courts contention that a jury may be able to determine both liability and to what parties extent at the same time as the original action. Metro Doors relies heavily on the Restatement and findings in Manbodh, however, even if this court were to be guided by the findings in Manbodh, the argument would fail pertaining to the elements of contribution. This is because Mandbodh specifically identifies that the “factual predicate for contribution is the existence of tort liability in the Plaintiff's assorted negligence.” SIDL has stated the basis of their claim is that Metro Doors is liable for the harm caused to Plaintiff, and if the Plaintiff is entitled to recovery, any and all recovery should be paid by Metro Doors.’ The court finds this to be a sufficient factual predicate for a jury to determine that there is tort liability. 7 Manbodh v. Hess Oil V.I. Corp.(In re Kelvin Manbodh Asbestos Litigation Series), 47 V.I. 267, 280, 2005 V.1. LEXIS 21, 20, 58 U.C.C. Rep. Serv. 2d (Callaghan) 387 (V.I. Super. Ct. 2005) Prentice v. Sunny Isle Developers, LLC et. al SX-10-CV-122 MEMORANDUM OPINION Metro Doors Motion to Sever and Bifurcate Factors courts consider when determining whether to sever a party, as cited in Galt Capital, LLP v. Seykota, are (1) whether the issues sought to be tried ci are significantly different from one another, (2) whether the separable issues require the testimony of different witnesses and different documentary proof, (3) whether the party opposing the severance will be prejudiced if it is granted, and (4) whether the party requesting the severance will be prejudiced if it is not granted. 2002 U.S. Dist. LEXIS 23152, *1 (D.V.1. Nov. 27, 2002). This court has already addressed the first factor finding that the claims arise out of the same transaction and stem from the original action filed by the plaintiff. The second factor to determine whether the separable issues require the testimony of different witnesses and different documentary proof. Here, the claims as discussed above stem from the same transaction or occurrence as the original action. The court finds that if any different witnesses or documentary proof were to be found necessary, it at best would be minimal. This court does not find that either said would be prejudiced by the granting or denial of this motion, however as stated in the discussion above, it is more beneficial economically for this court to litigate the claims at the same time. Metro Doors argues that they seek to protect trade secrets that would not need to be produced if severance is granted. Metro Doors has not presented any motions as of date requesting any documents be sealed. Should however, Metro Doors be presented with this issue during discovery, the court encourages them to file the appropriate motions so that a hearing can be scheduled and the court can address this issue at that time. Prentice v. Sunny Isle Developers, LLC et. al SX-10-CV-122 MEMORANDUM OPINION CONCLUSION Based on the foregoing analysis, the Court finds that SIDL has satisfied the requirements to withstand a 12(b)(6) motion by asserting a claim of negligence that arises from the same transaction of the original action that caused the harm to the Plaintiff. The premises having been considered, and the Court otherwise being fully advised will deny Metro Door’s motion to dismiss and the motion to sever or bifurcate. The Court will issue an Order consistent with this Opinion. ATTEST: (MeL, Ll HAROLD W. L. WILLOCKS teh. Estrella George Acting Clef of the Court Administrative Judge of the Superior Court Ly By l /f (Math Fa Li U/ Dep Clerk ome LL hi ae Sear