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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN STEVE SCULLY, pro se litigant, ) ) Plaintiff, ) Case No.: ST-16-CV-196 ) vs. ) ) ROBERT PETERSON JR., SHARON ) BREACH OF CONTRACT, PETERSON, and CHANNELS INC., d/b/a ) COLLUSION S&R TELECOMMUNICATIONS, ) ) ACTION FOR DAMAGES Defendants. ) ) JURY TRIAL REQUESTED MEMORANDUM OPINION THIS MATTER is before the Court on Defendants’ Motion to Dismiss, or in the Alternative, Motion for Summary Judgment as to Defendants Sharon Petersen & Robert Petersen, Jr.; Motion for More Definitive Statement; And Motion to Strike Immaterial and Scandalous Matters, filed August 1, 2016 (the “Motion to Dismiss’). Plaintiff filed his Objection on August 15, 2016 (the “Objection”). For the reasons set forth herein, the Motion to Dismiss will be granted in part and denied in part, the motion for summary judgment will be denied, and the motion to strike will be denied. Background This matter arises out of an Action for Damages, alleging Breach of Contract and Collusion, brought by Plaintiff Steve Scully (“Scully”) against Robert Petersen, Jr. (“Robert P.”), Sharon Petersen (“Sharon P.”) and Channels, Inc., d/b/a S&R Telecommunications (“S&R” and together with Robert P. and Sharon P., individually Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion or collectively, “Defendants”).! According to Scully’s Complaint (the “Complaint”), in the spring of 2014, Scully was contracted to provide fiber optic and other cable installation for the Westin Resort on St. John, U.S. Virgin Islands, and Scully subsequently hired Defendants as sub-contractors on that project. Compl. 1-2.2 Per the Complaint, upon completion of the Westin contract, Scully and the Defendants agreed to collaborate on future projects together and entered into a verbal profit splitting agreement for that purpose. Under the terms of this verbal agreement, according to Scully, he and the Defendants would deduct materials and labor from total job revenues and would then split any profits “50%”.3 Compl. 2. Scully and the Defendants continued working together in this fashion until the spring of 2015. In or about February of that year, Scully and the Defendants began working on a new project together (for a client later identified as International Capital Management Company (“ICMC”)). Scully claims that in or about March 2015, he and Robert P. were involved in an altercation on the ICMC job site, resulting in the sudden, constructive termination of the partnership agreement. Compl. 3. Scully asserts that he is due his share of the payments for jobs that the parties were collaborating on at the time of the confrontation and he is seeking damages in an unspecified amount. * Sharon P. and Robert P.’s last name is spelled in two different ways throughout the court documents associated with this matter. In some documents, the spelling is “Peterson” while in others, the spelling is “Petersen.” See Defs.’ Mot. for Extension of Time to Answer or Otherwise Plead (May 16, 2016) (“Peterson”) versus Sharon P. Aff. (July 15, 2016) (“Petersen”). For the purposes of this Mem. Op. we will follow the spelling used in the Affidavits, “Petersen.” ? In 2014, Robert P. and Sharon P. were President and Secretary/Treasurer, respectively, of S&R. 3 The Court notes that Scully’s Objection states that the 50/50 profit split was between Scully and the three (3) Defendants, collectively. See Objection 4 at 28 (“Plaintiff has no knowledge of how the Defendants 50% split of the profits were divided among themselves”). Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion The Motion to Dismiss is actually a combination of four discrete motions.4 The first is a motion to dismiss Scully’s Complaint pursuant to (i) Fed. R. Civ. P. 12(b)(6), for failure to state a claim on which relief can be granted (as to all defendants), (ii) Fed. R. Civ. P. 12(b)(2), lack of personal jurisdiction over defendant Sharon P., (iii) Fed. R. Civ. P. 9(b), failure to plead fraud and collusion with particularity (against all defendants), (iv) the Statute of Frauds and (v) 13 V.I.C. § 344(b) (as to defendants Robert P. and Sharon P.) (collectively, the “Motion to Dismiss”). The second is a motion for summary judgment as to defendants Robert P. and Sharon P., should the Motion to Dismiss be denied (the “Motion for Summary Judgment”). Third is a motion to require Scully to re-plead the Complaint to provide a more definite statement in accordance with Fed. R. Civ. P. 12(e) (the “Motion for More Definite Statement’). Finally, there is a motion to strike immaterial and scandalous matters from the Complaint (the “Motion to Strike”). This Memorandum will discuss each of the four motions individually.§ * This style of pleading is greatly discouraged and multi-part motions such as this one may be rejected in the future. > Effective March 31, 2017 the Supreme Court adopted the Virgin Islands Rules of Civil Procedure, which supersede all previous civil procedure rules applicable to the Su perior Court, including the Federal Rules of Civil Procedure. Per V.I. R. Civ. P. 1-1(c)(2)(B) “These rules, and subsequent amendments, govern: proceedings in any action pending on the effective date of the rules or amendments, unless: the Superior Court makes an express finding that applying them in a particular previously-pending action would be infeasible or would work an injustice.” This Court finds no just reason to not apply the V.I. Rules of Civil Procedure and will thus apply them to this matter. Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion I. The Motion for More Definite Statement Legal Standard “A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion . . . must point out the defects complained of and the details desired.” V.I. R. Civ. P. 12¢e). Discussion “A pleading should not be drafted in a manner which requires the Court or the opposing party to guess as to its nature.” Henry v. Hovensa, LLC, 2016 V. I. LEXIS 55, at *13 (V.I. Super. Ct. May 19, 2016). Under V.I. R. Civ. P. 8(a)(2), a claim for relief must contain “[a] short and plain statement of the claim showing that the pleader is entitled to relief — because this is a notice pleading jurisdiction — and the pleading shall be set forth in separate numbered paragraphs . . . with separate designation of counts and defenses for each claim ... .” “In other words, the pleading has to be written in such a way that it gives the defendant notice of the allegations against him/her so the defendant has a meaningful opportunity to reply to said allegations.” Hovensa, 2016 V. I. LEXIS 55, at *14. Here, the Defendants assert that “[t]he Complaint lacks the required clarity to enable a defending party to frame a responsive pleading or determine what exact factual allegations are alleged against each of the multiple named defendants.” Mot. to Dismiss 13. Further, “[t]here are no specifics as to what the obligations of each of the parties were under the purported verbal agreement or in relation to the individual jobs that plaintiff claims he had not Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion been paid for.” Jd. at 10. Put more bluntly, “The Complaint Fails to State What Each of the Defendants Did.” Jd. at 13. This Court agrees. “It is the duty of the drafting attorney — not the Court and not the opposing counsel — to plead a plausible claim for relief against the defendant.” Jd. at *14.6 Therefore, “the appropriate resolution is to... order Plaintiff to amend his complaint to provide more definite statements... .” Hovensa, 2016 V.I. LEXIS 55, at *15. Accordingly, the Court will direct Scully to replead the Complaint to clarify his claims against each of the named defendants. Plaintiff Scully is directed to comply with Rules 8 and 10 of the V.I. Rules of Civil Procedure, specifically he shall set state his “claims... in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Rule 10(b) V.I. R. Civ. P. The run-on essay style presented in Plaintiffs initial Complaint does not comport with the V.I. Rules of Civil Procedure. II. The Motion to Dismiss A. Rule 12(b)(6) — Failure to State a Claim Legal Standard In analyzing the 12(b)(6) issue, Defendants rely on the plausibility pleading standard set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Supreme Court of the Virgin Islands has previously applied Twombly and Iqbal to this Court through Superior Court Rule 7. See, e.g., ® Though Scully is a self-represented litigant and is entitled to some leeway in his pleadings, the Complaint falls below the standard due even from self-represented litigants. Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion Fleming v. Cruz, 62 V.I. 702, 710, 2015 V.I. Supreme LEXIS 16; Brady v. Cintron, 55 V.I. 802, 823, 2011 V.I. Supreme LEXIS 37; Robles v. HOVENSA, L.L.C., 49 V.I. 491, 500, 2008 V.I. Supreme LEXIS 1. However, effective March 31, 2017 the Supreme Court adopted the Virgin Islands Rules of Civil Procedure, which supersede all previous civil procedure rules applicable to the Superior Court, including the Federal Rules of Civil Procedure. Mills-Williams v. Mapp, 2017 V.I. Supreme LEXIS 35, at *11. As a result, “the plausibility standard has been abolished for proceedings in any ... actions that were pending on March 31, 2017, unless the Supreme Court of the Virgin Islands specifies otherwise by order or the Superior Court makes an express finding that an injustice or infeasibility would result from the application of the Virgin Islands Rules of Civil Procedure.” Carter v. Univ. of the V.I., 2017 V.I. LEXIS 129, at *4 (V.I. Super. Ct. July 31, 2017). Importantly, V.I. R. Civ. P. 8(a)(2) expressly states that the Virgin Islands is now “a notice pleading jurisdiction” and that a complaint will survive “so long as it ‘adequately alleges facts that put an accused party on notice of claims brought against it.” Mills-Williams, 2017 V.I. Supreme LEXIS 35 at *12 (citing Brathwaite v. H.D.V.I Holding Co., 2017 V.I. LEXIS 76, at *3 (V.I. Super. Ct. May 24, 2017). Discussion First, the Court finds that application of the Virgin Islands Rules of Civil Procedure would not result in any injustice or infeasibility in this matter. Therefore, the notice pleading standard as set forth in V.I. R. Civ. P. 8(a)(2) and applied in Mills- Williams will control here. Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion Scully has brought the instant action for damages on two claims: (i) breach of contract and (ii) collusion. Therefore, the Court will evaluate whether each claim satisfies the notice requirement. (i) Breach of Contract “[T]o establish a breach-of-contract claim, a party must plead that a contract existed, that there was a duty created by that contract, that such duty was breached, and that the party suffered damages as a result.” Merchants Commercial Bank v. Oceanside Village, Inc., 64 V.I. 3, 5, (V.I. Super. Ct. Dec. 18, 2015). Defendants make several arguments as to why Scully’s breach of contract claim fails. First, Defendants suggest that Scully’s claim is barred by the Statute of Frauds. The Court will address that argument in a subsequent section of this Memorandum Opinion. Next, Defendants assert that the alleged verbal partnership agreement between the parties is too vague to be enforced and that without an enforceable agreement, no duty could exist. In the Virgin Islands, whether an agreement will qualify as a partnership is governed by the Unified Partnership Act (CUPA”). 26 V.I.C. § 1. “Partnership agreement” is defined as “the agreement, whether written, oral, or implied, among the partners concerning the partnership, including amendments to the partnership agreement.” 26 V.I.C. § 2. “Partnership at will’ means a partnership in which the partners have not agreed to remain partners until the expiration of a definite term or the completion of a particular undertaking.” Jd. It appears that Scully and the Defendants had an at-will agreement, as alleged in the Complaint: “Any one of us ae Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion could have ended the deal if they wanted.” Obj. 18:5. Defendants have not provided evidence sufficient to overcome Scully’s claims that such an agreement existed. The Complaint alleges that Scully and the Defendants agreed to a 50% profit sharing agreement. Cmpl. 2:5. Scully claims that he never received his 50% share for work performed on a job for V.I. Next Generation Network. Cmpl. 3:1-3. Further, Scully asserts that Defendants abruptly ended the partnership while the parties were engaged in performing the contract with ICMC, in which contract Scully had already expended time and money and for which he has not received his share of the profits. Cmpl. 3:10-4:5. Scully has shown (i) the existence of an agreement, (ii) a duty created by that agreement, (ili) evidence of a breach of that agreement, and (iv) damages. As such, he has adequately alleged facts that put Defendants on notice of his breach of contract claim. (ii) Collusion As defined in Black’s Law Dictionary, collusion is “[a]Jn agreement to defraud another or to do or obtain something forbidden by law.” Black’s Law Dictionary 300 (9th ed. 2009). The Virgin Islands does not explicitly recognize collusion as a cause of action. However, “[a]lthough . . . this jurisdiction has not explicitly identified collusion as a cause of action and . . . not all jurisdictions acknowledge collusion, the Supreme Court of the Virgin Islands has implied its willingness to recognize collusion as a cause of action.” Arvidson v. Buchar, 2017 V.I. LEXIS 21, at *13-14 (V.I. Super. Ct. Feb 2, 2017) (citing Bryan v. Fawkes, 61 V.I. 416, 475-76, 2014 V.I. Supreme LEXIS Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion 53), “the Superior Court failed to make any factual findings or issue any conclusions of law based on the collusion claim.”)). Here, as was the case in Arvidson, it is unclear whether Scully intends to plead collusion as a separate cause of action or whether he intends to use factual allegations of collusion to support his breach of contract claim. Therefore, also as in Arvidson, the Court will grant Scully leave to amend the Complaint to either “incorporate the factual material in that claim as support for one of the other recognized causes of action or to provide a legal analysis demonstrating why this jurisdiction should recognize collusion as a cause of action, including the requisite elements.” Arvidson, 2017 V.I. LEXIS 21, at *14. (See Banks v. Int'l Rental & Leasing Corp., 55 V.I. 967, 2011 V.I. Supreme LEXIS 46. B. Rule 12(b)(2) - Personal Jurisdiction Legal Standard “The Court's personal jurisdiction over out-of-state parties is governed by V.I. R. Civ. P. 4(f), which permits the Court to exercise personal jurisdiction only to the extent allowed by the Virgin Islands long-arm statute.” Gov't of the United States Virgin Islands v. Takata Corp., 2017 V.I. LEXIS 125, at *5 (V.I. Super. Ct. June 19, 2017) The Virgin Islands long arm statute states that: (a) A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's (1) transacting any business in this territory; ... Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion (b) When jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him. 5 V.I.C. § 4903. In determining whether a litigant is subject to personal jurisdiction, Virgin Islands courts employ a “two part test”: First, the Court evaluates whether the defendant is subject to personal jurisdiction under the Virgin Islands long arm statute, codified at V.I. Code Ann. tit. 5, § 4903. Second, the Court must be satisfied that ‘the exercise of personal jurisdiction satisfies the requirements of due process.’ Takata, 2017 V.I. LEXIS 125, *5-6 (internal citations omitted). “In addition to finding that there is adequate statutory basis for personal jurisdiction over defendant, the Court must also decide that the exercise of such jurisdiction complies with all due process requirements.” Buccaneer Hotel Corp. v. Reliance Int'l Sales Corp., 17 V.I. 249, 258 (V.I. Terr. Ct. 1981). “[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Discussion Defendants allege that this Court lacks personal jurisdiction over Sharon P. as (i) she is an out-of-state resident, (ii) the Long Arm Statute does not apply (as it has not been established that she is or had been transacting business in the Virgin Islands), and (iii) even had Sharon P. been transacting business in the Virgin Islands, Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion her contacts with the territory must be “continuous and substantial” to satisfy the due process requirement. Mot. to Dismiss 17. Although currently residing in Florida, Sharon P. does not deny that she was a resident of the Virgin Islands during all or part of the time surrounding the matter in question. Sharon P. Aff. 5. Sharon P.’s current Florida residency only affects this matter in that personal jurisdiction over her can only be exercised by invoking the long arm statute. 5 V.I.C. § 4903(a)(1) grants the court jurisdiction over “a person... as toa claim for relief arising from the person’s transacting any business in [the] territory.” In the Virgin Islands, “[t]ransacting business is a term of art which means less than doing business but more than performing some inconsequential act within a jurisdiction. In short, transacting business requires a defendant to engage in some type of purposeful activity within the territory.” Hendrickson v. Reg O Co., 17 V.I. 457, 462-463 (D.V.I. 1980), aff'd, 657 F.2d 9 (3d Cir. 1981). “An analysis of the case law interpreting this phrase reveals that a single act can amount to the transaction of business within a state or territory.” Zebedee v. King, 1986 U.S. Dist. LEXIS 28635, *2-3 (D.V.I. 1986) (citing Godfrey v. International Moving Consultants, Inc., 18 VI 60, 66-67 (D.V.I. 1980)). “Moreover, a person need not be physically present within a state in order to transact business therein.” Zebedee, 1986 U.S. Dist. LEXIS 28635, *3 (citing Illinois v. O'Hare International Bank v. Hampton, 437 F.2d 1173 (7th Cir. 1973) (guarantors of a lease which was executed in IIlinois and performed in Illinois Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion were subject to the jurisdiction of the Illinois courts despite the fact that said guarantors had never been physically present in IIlinois)). Sharon P. acknowledges that not only is she a shareholder of S&R, she is also the Secretary, Treasurer and a member of the Board of Directors of the corporation. Sharon P. Aff. 1. Although she claims to have had no direct dealings with Scully, two of the invoices provided as evidence of payments made to Scully are written on “a memo from Sharon Peterson” letterhead.’ Obj. Ex. 1-2. There seems little doubt that as the Secretary and Treasurer of a corporation located in and doing business in the Virgin Islands, Sharon P. was transacting business in the territory at the time of the instant matter. Further, Scully’s claims arise from the dealings of a partnership agreement formed in the territory. “For determining personal jurisdiction, the only requirement of subdivision (a)(2) of [5 V.I.C. § 4903] is that the contract be performed, at least in part, in the Virgin Islands and that the cause of action arise out of the contract.” Buccaneer Hotel Corp., 17 V.I. at 251. Therefore, the Court finds the long arm statute applies and the first prong of the two-part test for personal jurisdiction is satisfied. Defendants assert that Sharon P.’s contacts with the territory must be “continuous and substantial” in order to satisfy the due process prong of the test. This is a misapplication of the standard. “A nonresident's contacts with the forum must be ‘continuous and substantial’ in order to establish general jurisdiction.” Pennzoil 7 See the spelling discrepancy previously referred to in n.1 Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion Prods. Co. v. Colelli & Assocs., 149 F.3d 197, 200, 1998 U.S. App. LEXIS 15314, at *8 (citing Provident National Bank v. California Federal Savings & Loan Association, 819 F.2d 434, 437 (3d Cir. 1987) (citations omitted)) (emphasis added). General personal jurisdiction applies when “a person’s continuous and systematic contacts with a forum state enable the forum state’s courts to adjudicate a claim against the person, even when the claim is not related to the person’s contacts with the forum state.” Black’s Law Dictionary 929 (9th ed. 2009). In contrast, specific personal jurisdiction is based “on a person’s minimum contacts with the forum state when the claim arises out of or is related to those contacts.” Jd. at 931 (emphasis added). “Specific’ jurisdiction contrasts with ‘general’ jurisdiction, pursuant to which ‘a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant's contacts with the forum.’ Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, n.9 (1984)). Here, as it is Sharon P.’s alleged activities in the territory that give rise to Scully’s claims, the question is whether this Court may exercise specific personal jurisdiction over Sharon P. The Virgin Islands applies a three-part test to determine whether specific jurisdiction exists. First, the defendant must have purposefully directed its activities at the forum. Second, the litigation must arise out of or relate to at least one of those activities. Third, jurisdiction must not offend traditional notions of fair play and substantial justice. Chabuz v. Putnam Lumber & Exp. Co., 2016 V.I. LEXIS 33, at *12 (V.I. Super. Ct. Apr. 12, 2016) (quoting Molloy v. Independence Blue Cross, 56 V.I. 155, 183, 2012 V.I. Supreme LEXIS 6; International Shoe Co. v. State of Wash., 326 U.S. 310, 316 (1945)) Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion (internal citations omitted). “The purpose of the test is to ensure that the defendant has the requisite minimum contacts with a forum to receive ‘fair warning’ that the defendant may be haled into court in that forum to answer for its actions in relation to those contacts.” Molloy, 56 V.I. at 183-184 (quoting Burger King Corp., 471 U.S. at 472). Per the Complaint, S&R is a corporation formed and licensed in the Virgin Islands. Cmpl. 1:16-17. S&R’s services are performed in and purposefully directed towards the people of the Virgin Islands. As established above, Sharon P. was serving as an officer of S&R at the time of the instant matter. Sharon P.’s activities as an officer of S&R are by extension also purposefully directed at the forum. Scully has alleged sufficient facts to show that his claims relate to at least one of those activities. Finally, “[iJf a defendant purposefully avails itself of the privilege of conducting activities within the forum state, it has clear notice that it is subject to suit there.” C & C/Manhattan v. Sunex Int'l, 42 V.I. 3, 10 (V.I. Terr. Ct. Oct. 14, 1999) (citing Hendrickson v. Reg O Co., 657 F.2d 9, 15, 1981 U.S. App. (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)); punctuation omitted). Sharon P. knowingly “invok[ed] the benefits and protections” of the laws of the Virgin Islands and had the requisite minimum contacts with the territory to fairly have notice that she could be subject to those same laws. Burger King Corp., 471 U.S. at 475 (citing Hanson, 357 U.S. at 235). Moreover, “where the plaintiff has established that a defendant has the requisite minimum contacts and that his claim arises out of those contacts, the burden of proof shifts to the defendant to ‘present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Molloy, 56 V.I. Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion at 184 (quoting Burger King Corp., 471 U.S. at 477 (internal quotation marks and citation omitted)). Defendants have failed to provide reasons why the exercise of jurisdiction over Sharon P. would not comply with the notions of fair play and substantial justice. The three-part test for specific jurisdiction has been satisfied. This Court is permitted to exercise personal jurisdiction over Sharon P. under 5 V.I.C. § 4903. C. Rule 9(b) - Failure to Plead Fraud and Collusion with Particularity Legal Standard “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” V.I. R. Civ. P. Rule 9(b). Discussion Defendants move that the word “collusion” be stricken from the caption of the Complaint as Scully fails to assert with particularity any facts to establish a viable claim for collusion. As previously discussed in section II.A.(ii) of this Memorandum, collusion is not a recognized, colorable claim in the Virgin Islands. Further, “collusion” is not specified in V.I. R. Civ. P. 9(b). The Advisory Committee on Rules comment to Rule 9 states that “[s]ince the Virgin Islands is a notice pleading jurisdiction, Rule 9 represents a narrow category of special situations where the common law requires heightened or ‘special’ pleading of some issues ‘with 2? particularity.” The Court notes that Rule 9 does not mention collusion as one of the Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion special situations requiring a heightened pleading standard. Therefore, the motion is denied. D. The Statute of Frauds Legal Standard The local statute of frauds, codified at 28 V.I.C. § 244, states in relevant part, In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof is in writing, and subscribed by the party to be charged therewith, or by his lawful agent under written authority: (1) An agreement that by its terms is not to be performed within one year from the making thereof. Discussion Defendants assert that Scully’s claims are barred under the Statute of Frauds, as (i) there was no written agreement between the parties and (ii) the work contemplated by the parties’ verbal agreement was for an indefinite period, extending beyond one year in duration. As discussed above, partnerships in the Virgin Islands are controlled by the UPA. Defendants acknowledge that “the complaint alleges an ‘at will’ agreement under which plaintiff concedes that he was paid for work he actually did with defendant S&R.” Mot. to Dismiss 12. [t]he UPA does not require that [partnership] agreements be memorialized by a writing, and further sanctions ‘at will’ agreements that have no definite term or duration, and are subject to dissolution by either partner at any time. As such, partnerships are not within the statute of frauds and need not be in writing. Hamed v. Yusuf, 58 V.I. 117, 131 (V.I. Super. Ct. Apr. 25, 2018) (citing Smith v. Robson, 44 V.I. 56, 61 (V.I. Terr. Ct. 2001), affd in part and vacated in part by, a Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion remanded by 59 V.I. 841, 2013 V.I. Supreme LEXIS 67; see also Yusuf v. Hamed, 59 V.I. at 852 (“[T]his Court has held that the statute of frauds has no application to oral contracts that, while intended to last for more than a year, have no stated durational terms and could conclude within a year.” (citing Peppertree Terrace v. Williams, 52 V.I. 225, 232 n.5, 2009 V.I. Supreme LEXIS 36)).8 Moreover, [e]ven if the statute of frauds were applicable to the formation of a partnership, the doctrine of part performance operates to prevent an inequity where a person is induced or permitted to invest time, money and labor in reliance upon an oral agreement, which agreement would otherwise be voided by the application of the statute of frauds. Accordingly, if a party can show that part of an oral agreement was performed, the oral contract is taken out of the statute of frauds and becomes binding. Hamed, 58 V.I. at 131. (citing Sylvester v. Frydenhoj Estates Corp., 47 V.I. 720, 724 (D.V.I. 2006), citations omitted). Scully claims that he has not received his share of the profits from at least two jobs he performed with Defendants, and he expended both time and money on those jobs on reliance on the oral partnership agreement. For both of these reasons, Scully’s claims are not barred by the Statute of Frauds. E. 13 V.I.C. § 344(b) - Actions against officers, directors or stockholders to enforce liability of corporation; unsatisfied judgment against corporation. Legal Standard No suit shall be brought against any officer, director or stockholder for any debt or liability of a corporation, of which he is an officer, director 8 In Yusef, the Supreme Court specifically affirmed the Superior Court’s finding on this issue, stating that, “because the Superior Court found that the partnership is an indefinite at-will agreement . . . the statute of frauds is not implicated.” 59 V.I. at 853. Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion or stockholder, until judgment be obtained therefor against the corporation, nor after three years from the date of such judgment and any such officer, director or stockholder may set up any defense which the corporation might have asserted against such debt or liability. Title 13 V.I.C. § 344(b). Discussion Defendants Robert P. and Sharon P. argue that Scully's claims against them are barred by 13 V.I.C. § 344(b). Defendants assert that Scully’s Complaint fails to provide material allegations against the individual defendants and fails to link particular facts and causes of action with each party. Mot. to Dismiss 1. Defendants further assert that the Complaint fails to adequately show that a contract existed between Scully and either of Robert P. or Sharon P. as individuals. Mot. to Dismiss 12. Even Scully himself seems unclear on the relationships between the parties. Obj. 17: 25-30. As noted earlier, the Complaint is so vague on these points that it is impossible for Defendants to respond. It is equally impossible for this Court to render a decision on this point, without more specificity. Therefore, the Court will grant the motion, but will allow Scully to replead the Complaint to provide more definitive statements regarding the contractual agreement(s) alleged and will withhold decision on this issue, at this time. Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion III. The Motion for Summary Judgment as to Defendants Sharon Petersen and Robert Petersen, Jr. Legal Standard “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” V.I. R. Civ. P. 56(a). Discussion Sharon P. and Robert P. move for summary judgment on all claims against them. They argue that (i) the Court lacks personal jurisdiction over Sharon P. and (ii) the claims being asserted against both Sharon P. and Robert P. are statutorily barred. Mot. to Dismiss 20. As discussed above, the Court disagrees with both assertions. “Summary judgment is a drastic remedy [and] should be granted only when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact.” Alexander v. Alexander, 65 V.I. 372, 378, 2016 V.I. Supreme LEXIS 35 (citing Machado v. Yacht Haven U.S.V.L., LLC, 61 V.1. 373, 379-80, 2014 V.I. Supreme LEXIS 51 (quoting Williams v. United Corp., 50 V.I. 191, 194, 2008 V.I. Supreme LEXIS 9) (alteration in original)) (emphasis added). “A fact is material only if its existence or non-existence will affect the outcome of a lawsuit under applicable law, and a dispute over a material fact is genuine only if the evidence is such that a reasonable fact-finder could return a Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion verdict for the nonmoving party.” Bellot v. Cardow, Inc., 2017 V.I. LEXIS 66, at *3-4 (V.I. Super. Ct. May 1, 2017) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48 (1986)). “It is well settled that a single, nonconclusory affidavit or witness’s testimony, when based on personal knowledge and directed at a material issue, is sufficient to defeat summary judgment or judgment as a matter of law.” Bellot 2017 V.I. LEXIS 66, at *4 (citing Burd v. Antilles Yachting Servs., Inc., 57 V.I. 354, 360, 2012 V.I. Supreme LEXIS 64 (quoting Cappuccio v. Prime Capital Funding, LLC, 649 F.3d 180, 189-90 (3d Cir. 2011)). Here, the Court has determined that it has specific personal jurisdiction over Sharon P. Further, there are genuine issues of material fact regarding Scully’s contractual relationships with both Robert P. and Sharon P. such that the statutory question cannot be determined at this time. Therefore, the Motion for Summary Judgment will be denied. IV. The Motion to Strike Legal Standard “The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” V.I. R. Civ. P. 12(f). Discussion Defendants have asked that the Court strike from the Complaint (i) matter regarding allegations of brandishing by Robert P. and (ii) the word “collusion” from the caption, pursuant to V.I. R. Civ. P. 12(f). “It is well-established that ‘[b]ecause of Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion the drastic nature of the remedy . . . motions to strike are usually viewed with disfavor and will generally be denied ... .” Benjamin v. Esso Std. Oil Co., 2009 U.S. Dist. LEXIS 48677, at *1-2, (D.V.I. June 4, 2009) (quoting Garlanger v. Verbeke, 223 F. Supp. 2d 596, 609 (D.N.J. 2002)) (internal quotations omitted); see also Hobson v. Gov't of the Virgin Islands, 20 V.I. 413, 418 (V.I. Terr. Ct. 1984) (stating that motions to strike are “highly disfavored and infrequently granted.”); Tutu Park, Ltd. v. Harthman Leasing I, LLLP, 2016 V.I. LEXIS 159, at *4 (V.I. Super. Ct. Sep. 26, 2016). “A motion to strike . . . scandalous matter is also viewed with disfavor as ‘a time waster.” Flanagan v. Wyndham Int'l, Inc., 2003 U.S. Dist. LEXIS 24211, at *4 (D.V.1. Apr. 21, 2003) (quoting Somerset Pharms., Inc. v. Kimball, 168 F.R.D. 69, 71 (M.D. Fl. 1996)). “Mere redundancy, immateriality, impertinence or scandalousness is not sufficient to justify striking an allegation - the allegation must also be shown to be prejudicial to the moving party.” Flanagan, 2003 U.S. Dist. LEXIS 24211, at *4 (citing Hardin v. American Elec. Power, 188 F.R.D. 509, 511 (S.D. Ind. 1999)); Merchants Commercial Bank v. Tillet, 2011 V.I. LEXIS 26, at *1 (V.I. Super. Ct. Apr. 20, 2011). Here, as in Flanagan, the Court finds that “[t]he only conceivable prejudice to [Defendants] from failure to strike such allegations would arise if a jury were to view the Complaint.” Flanagan, 2003 U.S. Dist. LEXIS 24211, at *5. Scully will have the opportunity to replead the Complaint. In the event that the Complaint should be presented as a jury exhibit and the language noted by Defendants remains in the amended Complaint, the Court may revisit this issue at that time. In the meantime, the motion to strike “collusion” from the caption will be denied. Scully v. Petersen, et al. Civil No. ST-16-CV-196 Memorandum Opinion Vv Conclusion Per the foregoing discussion, the Court will grant Defendants’ Motion for More Definite Statement. The Court will deny Defendants’ Motion to Dismiss, or in the Alternative, Motion for Summary Judgment as to Defendants Sharon Petersen and Robert Petersen, Jr. The Court will also deny Defendants’ Motion to Strike Immaterial and Scandalous Matters. An Order consistent with this Memorandum Opinion will be entered. DATED: January QS. 2018 LeU ee Uygpede, Kathleen Mackay Judge of the Superior Court of the Virgin Islands ATTEST ESTRELLA H. GEORGE Cl f the Court SORI BO TYSON Chief Deput Si, 08 rk Las.