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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN JOHN SOUTHWELL BY HEADDIE Plaintiff HENRY , ET AL., CASE NO. ST-08-CV-0000183 ACTION FOR: NEGLIGENCE VS THE GOVERNMENT OF THE VIRGIN ISLANDS THE VIRGINISLANDS , ET AL., Defendant NOTICE OF ENTRY OF MEMORANDUM OPINION AND ORDER TO: ALEXM. MOSKOWITZ, ESQ., SUNSHINE S. BENOIT, ESQ., GEORGE W.H. PHILLIPS, ESQ., EMILY SABO, ESQ. JUDGES & MAGISTRATES, SUPERIOR COURT LIBRARIAN LIT DIVISION ORDER BOOK Please take notice that on November 30, 2010 a(n) MEMORANDUM OPINION AND ORDER dated November 29, 2010 was entered by the Clerk in the above-entitled matter. Dated: November 30, 2010 Venetia H. Velazquez, Esq. IO) Clerk of the Court WV Zon (UL tn Not Van DIANE MATTHEW-TURNBULL COURT CLERK II IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN JOHN SOUTHWELL by HEADDIE HENRY, his mother and next of friend, and KENALIE ATTIDORE, Plaintiffs, v. THE VIRGIN ISLANDS DEPARTMENT OF JUSTICE, GERRY SCHMIDT SR., ALLIANCE ——AVIATION FUELS, INC., JEROME KENDALL, TEXTRON, INC., and AVO CORPORATION, d/b/a LYCOMING ENGINES, ) ) ) ) ) THE GOVERNMENT OF THE VIRGIN ISLANDS, __) Case No. ST-08-CV-183 ) ) ) ) ) ) Defendants. ) ) MEMORANDUM OPINION Pending before the Court is Defendant Alliance Aviation Fuels, Inc.’s (“Alliance”) motion to quash service of process.' For the following reasons, Alliance’s motion will be granted but Plaintiff will be permitted to re-serve Alliance. FACTUAL AND PROCEDURAL HISTORY On October 15, 2009, Plaintiff filed a Second Amended Complaint naming Alliance as an additional defendant. On December 17, 2009, Plaintiff filed an affidavit of service indicating that Denise Charles accepted service on behalf of Vincent Frazer and that the place of service was the office of the Virgin Islands Department of Justice. Currently the Attorney General of the Virgin Islands, Vincent Frazer, Esq., was, at the | Alliance filed its motion on March 5, 2010; Plaintiff filed an opposition on March 26, 2010; and Alliance filed a reply on April 7, 2010. In connection with its motion to quash, Alliance filed a motion to dismiss. Considering Alliance has not been properly served in this matter, a ruling on the motion to dismiss would be premature. Southwell, et al. v. Government of the VI, et al., ST-08-CV-183 Memorandum Opinion, November 23, 2010 time of service, still shown on the records of the Office of the Lt. Governor, Division of Corporations and Trade Names, as the resident agent of Alliance, a post he first accepted while working as an attorney in private practice. ANALYSIS A “resident agent” is defined as “[a] person authorized to accept service of process for another person, esp. a corporation, in a particular jurisdiction.” Black's Law Dictionary 65 (7th ed.1999). When serving a corporation’s resident agent, service of process must be made upon the resident agent itself. See Brunn v. Xtra Superfoods Centers, Inc., 2001 WL 180136, at *3 (D.V.I. 2001) (citing Gottlieb v. Sandia American Corp., 452 F.2d 510, 514 (3d Cir. 1971)). Under Fed. R. Civ. P. 4, there is no provision for substitute service. See Brunn, supra, at *3. “Generally speaking, the process cannot be left with someone at the officer’s or agent’s office.” Gottlieb, supra, at 514. Because Plaintiff served Denise Charles and not Vincent Frazer, Alliance has not been properly served. In addition, the one hundred and twenty day period for serving a defendant under Fed. R. Civ. P. 4(m) has expired. Untimely service is evaluated pursuant to Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298 (3d Cir. 1995). The time for service should be extended for an appropriate period if a plaintiff can show “good cause” for failing to effectuate timely service. See Chiang v. U.S. Small Business Admin., 331 Fed. Appx. 113, 115 (3d. Cir. 2009) (citing Petrucelli, supra, at 1312). In the absence of a showing of good cause, the court may consider the following: [defendant’s] actual notice of the legal action; prejudice to the defendant; the statute of limitations on the underlying causes of action; the conduct of the defendant; and whether the plaintiff is represented by counsel, in addition to any Southwell, et al. v. Government of the VI, et al., ST-O8-CV-183 Memorandum Opinion, November 23, 2010 other factor that may be relevant when deciding whether to grant an extension or dismiss the complaint. Chiang, supra, at 116; see also Fed. R. Civ. P. 4(m) Notes of Advisory Committee on 1993 amendments; Boley v. Kaymark, 123 F.3d 756, 759 (3d. Cir. 1997). Here, Plaintiff has not shown good cause why he has not complied with Fed. R. Civ. P. 4(h). See Chiang, supra, at 115-116 (good cause for untimely service not shown where plaintiff offered no explanation for failing to comply with Fed. R. Civ. P. 4(i)). However, a dismissal without prejudice would effectively bar Plaintiffs action against Alliance as the ae period of limitations for Plaintiff's claims has expired. While the expiration of the statute of limitations does not require a court to grant an extension of time to properly make service pursuant to Fed. R. Civ. P. 4, the Court will permit Plaintiff to re-serve Alliance.” An Order consistent with this Memorandum Opinion shall follow. Dated: Moventbend 2010 _—=_ CS ws HON. MICHAEL C. DUNSTON ATTEST: Venetia H. Velazquez, Esq. JUDGE OF THE SUPERIOR COURT ~ Clerk o rt / / OF THE VIRGIN ISLANDS by: — QX- S—— R Alie Griffith CERTHIEDA TRUE COPY Court Clerk Supervisor I |Z fo aim 2 Py, )3 j re JO Ver idtia Ts Welazcuez, Esq. Clerk of the Court Dac Z Court Clerk ? Although Plaintiff's original service of process was not in compliance with Rule 4, the fact that Plaintiff served an individual who on frequent occasion has received service of process on behalf of Vincent Frazer weighs in favor of granting Plaintiff an extension. Plaintiff may also wish to consider service in some other authorized form in order to avoid another motion to dismiss on the grounds that the Attorney General is not authorized to accept service on behalf of a corporation under these circumstances. - . id w! “ hal ee Ve 1 ry toe wy . a i” rar Pt) a we iy te a tt ee 5 oe are i: wv _ te woe by fe coe . re nse pra oa eet os a on fn - ate ut esa ate ane t., 7+ ree a wee wee ” Le - ae wees a a ae _ to tee ae -~, - oped te - %e we we wd o- aed weet ey, f, a te 7 ars te t, Ba at *; as - ae ~ a ae ve a 7," \4 ”, a ” — < aS Oey OS SOAS +n, be i ed oar Lond =r — ae = Fatal sv << s1~ Nae rho} ww ws bat a!) FN oes awee ue AS Le Ss. Ww a oe nee — a a act oa wu ue ros at = 1 fa a a wie ti fe vite i ae oe .) ap Mie vt oa “ lee +4 fa ‘ ‘ya 2G ie we IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN JOHN SOUTHWELL by HEADDIE HENRY, his mother and next of friend, and KENALIE ATTIDORE, Plaintiffs, v. ) ) ) ) ) | THE GOVERNMENT OF THE VIRGIN ISLANDS, _ ) Case No. ST-08-CV-183 THE VIRGIN ISLANDS DEPARTMENT OF ) JUSTICE, GERRY SCHMIDT SR., ALLIANCE ) AVIATION FUELS, INC., JEROME KENDALL, ) TEXTRON, INC., and AVO CORPORATION, ) ) ) ) ) d/b/a LYCOMING ENGINES, Defendants. ORDER UPON CONSIDERATION of the premises, it is hereby ORDERED that Alliance Aviation Fuels, Inc.’s motion to quash is GRANTED; and it is ORDERED that Plaintiff shall re-serve Alliance on or before Kegnwaed is 20e// ;and it is ORDERED that a copy of this Order shall be directed t f record. Dated: November2rZ 2010 a a [ os HON. MICHAEL-G-DUNSTON - ATTEST: Venetia H. Velazquez, Esq. JUDGE OF THE SUPERIOR Cot URT. 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