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SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX HENRY DAVIS AND JANET DAVIS PLAINTIFFS, Civil N0 SX 18 CV 337 V ACTION FOR DAMAGES MIRIAM MILLIGAN JURY TRIAL DEMANDED DEFE‘DA‘T CITE AS 2020 v1 SUPER 99v Appearances Yohana M Manning, Esq Manning Legal Services P C Christiansted U S Virgin Islands For P](llll[l_fi$‘ Daryl C Barnes, Esq Paul R Neil, Esq Barnes & Neil LLP Christiansted U S Virgin Islands For Defendant MEMORANDUM OPINION WILLOCKS Presiding Judge ‘lIl THIS MATTER came bCfOIC the Court on Defendant Miriam Milligan s (hereinafter Defendant ) motion for summaryjudgment filed on J uiy l 2020 To date Plaintiff Henry Davis and Plaintiff Janet Denis (hereinaftex collectively Plaintiffs ) have not filed an opposition and the deadline for Plaintiffs to file a timely opposition has passed ' On August 27 2020 Defendant filed a notice of Plaintiffs failure to xespond to Defendant § motion for summaly judgment and tequested for entry of judgment 7 ‘ Ru]; 56 0| Virgin Islands Ru]; 0! Civil Proccdun. prmidcs that [alny party :1ch“; to a motion tiled undcr this R1114. may file a brie! in opposition any atfidavils desired and/or olhu douumcnts rclicd upon in opposition to the motion within '40 days of the tiling of th:. motion V I R CW P 56(c)(2)(A) ’ In ha notice Dctendam rcquested that should 1h; Court deny the pending MS] for any reason that Ms Milligan be pcrmittnd lo complclc ail expert diswury and deposition: and to tile additionai disposiliu Daubelr motions it any Dam el al 1 Mllllgan 9X 18 CV 17.7 Memorandum Opinion 2020 VI SUPER 99U BACKGROUND ‘1[2 On September 12 2018 Plaintiffs filed a complaint against Defendant for an alleged single vehicle incident involving Defendant and Plaintiffs In her complaint Plaintiffs alleged inter alia [o]n the morning of Septembei 18 2016 Defendant collided with 30 C Estate Whim a property owned and/or occupied by Plaintiffs and [ab 3 result of Defendant s negligence and/or gross negligence Plaintiffs suffered significant damage to their property (Compl fl 2 4) On Octobei 23 2018 Defendant filed her answer to Plaintiffs complaint Thereafter a scheduling Older was enteied and discovery commenced in this matter On December 4 2019 pet the parties joint stipulating an amended scheduling order was entered which required factual disCOVery to be completed by March 31 2019 On July 1 2020 Defendant filed this instant motion STANDARD OF REVIEW 1113 Rule 56 of Virgin Islands Rules of Civil Procedure (hereinafter Rule 56 ) provides that [a] patty may mow for summary judgment identifying each Claim or defense or the part of each claim or defense on which summary judgment is sought and [t}he comt shall grant summary judgment if the movant shows that them is no genuine dispute as to any material fact and the movant is entitled tojudgment asa mattex oflaw V1 R CW P 56 see also Ryneri Kmart Corp 68 V I 571 575 (V I 2018) ( A summary judgment movant is entitled to judgment as a matter of law if the mo» ant can demonstrate the absence of a triable issue of material fact in the record ) A factual dispute is deemed genuine if the e» idence is such that a leasonable jury could return a verdict for the nonmoving party[ i and a fact is mateiiai only where it might affect the outcome of the suit under the governing 1aw[ ] Todman 70 V I at 436 (citations omitted) Once Defendant should file her discovery request in a motion separate from her noliLe As such the Court will not address the discovery rcquesl included in Deiendant s notiu. Dm 1: er a! 1 Mtlllgan 9X 18 CV 337 Memorandum Opinion 2020 VI SUPER 99U Page 3 m 10 the moving party has identified the pmtions of the tecord that demonstrate no issue of material fact the burden shifts to the non moving party to present affirmative evidence from which ajury might reasonably return a VBIdiCI in his‘ favor war 68 V I at 576 (citing Chapman v Cornwall 58 V I 431 436 (V I 2013)) (intemal citations and quotation marks omitted) The non moving party may not rest upon mere allegations [but] must present actual evidence Showing a genuine issue for tria1 Rune: 68 V I at 576 (quoting Wzllmms t Umred Cmp 50 VI 191 194 (VI 2008)) Thetefore to survive summary judgment the nonmoving party 9 evidence must amount to more than a scintilla but may amount to less (in the evaluation of the court) than a preponderance Kennedy Fundmg Inc 1 GB Propernec Ltd 2020 V I 5 ([[14 (citation and intemal quotations omitted) $14 Rule 56 provides that [e]ach summary judgment motion shall include a statement of undixputed facts in a separate section within the motion and that [e]ach paragraph stating an undisputed fact shah be serially numbeted and each shah be supported by affidavit(s) 0r citations identifying specificalIy the location“) of the material(s) in the ICLOTd re1ied upon regarding such fact V I R CIV P 56(c)(1) Additionally Rule 56(e) states that {i]f a patty fails to properIy support an assertion of fact or fails to properIy address anothet patty s assertion of fact as tequired by Rule 56(0) the court may (1) give an opportunity to ploperly support or address the fact (2) consider the fact undisputed for purposes of the motion‘ (3) grant summary judgment if the motion and supporting materials including the facts considered undisputed Show that the movant i9 entitled to it' 01 (4) issue any other appropriate order V I R CIV P 56(e)( l) (4) The reviewing court must view all inferences from the underlying facts in the light most favorable to the nonmoving party and take the nonmoving partys conflicting a11egations as true if properly supported Kennedy 2020 V I 5 (1114 Wzllmms 50 V I at 194 Pere v Rn Carlton (Virgin Dametal I Mllllgan 3X 18 CV "H7 Memorandum Opinion 2020 VI SUPER 99v Page 4 0f 10 Islands) Inc 59 VI 522 527 (VI 2013) Moreover the court should not weigh the eyidence make c1edibility determinations or d1 aw legitimate inferences from the facts when ruling upon summary judgment motions because these are the functions of the jmy Todman 70 V I at 437 (quoting Williams t Umted Corp 50 V I 191 197 (V I 2008) In deciding a motion for summary judgment the count 3 role is not to determine the truth but lather to determine whether a factuaI dispute exists that warrants trial on the merits Todmcm 70 VI at 437 (quoting HaltkmS‘ 1 Grezner 66 V I 112 117 (V I Super Ct 2017) Because summary judgment is {a] drastic remedy a court should only grant summaly judgment when the pleadings the discoyery and disclosure materials on tile and any affidavits show there is no genuine issue as“ to any matetial fact Rune; 68 VI at575 76 (quoting Wzllzcum 50VI 191 194) Finally Rule 56 requires the court to state on the record the reasons fOI granting or denying the motion V I R CW P 56(3) DISCUSSION (|{5 In his motion Defendant 211 gued that Plaintiffs are not the real party in intexest as required under Rule 17 of Virgin Islands, Rules of Civil Procedu1e since they have failed to produce evidence showing they have any legal ownership or right to [30 C Estate Whim} and therefore the Conn should enter judgment for Defendant (Motion p 1) Defendantfi made the foliowing assertions in support of his argument (i) Plaintiffs previously asserted that an action to quiet title to the Real Ploperty is 01 was pending in the Superior Court of the Virgin Islands (Id at p 2 n 2)‘ (ii) The only evidence provided by Plaintiffs are self serving interrogatory responses alleging Plaintiffs are owners by means of adverse possession but unsupported by any deed or otherwise showing actual ownership (Id ) (iii) In order to file and pursue a lawsuit a plaintiff must have actual injury to the plaintiff 5 actual vested interest in the subject of the suit as a Dans er a! \ Mlllzgan SK [8 CV 327 Memorandum Opinion 2020 VI SUPER 99U Page 5 of IO plaintiff cannot generally Iedress some othel pexson s injuries 2 (Id at p 2) (iv) Courts do not decide hypothetical cases 4 (Id ) (v) Piaintiffs mere bald allegation in the Complaint that they purpmtedly owned and/or occupied the Real Property” is not evidence but is instead bald unsupported argument (Id at p 4) (vi) Given the dearth of any actual evidence proving they have a valid and recognized legal interest in the Real Property Plaintiffs claim against Ms Milligan is no better than any other stranget or trespasset alleging entitlement f0: damages to property the person does not actually own or legally possess (Id ) and (vii) Plaintiffs likewise fail to produce evidence showing a prima facie claim against Ms Milligan because Plaintiffs lack evidence that Ms Milligan owed them (as non owners of the Real Propelty) any legal duty of cane any breach of that non existent duty or any damages to Plaintiffs (Id at pp 4 5) As such Defendant requested the Count to g1 ant hex motion and enter judgment in favor of Defendant ‘H6 The Court must note at the outset that Defendant s motion failed to include a statement of undisputed facts in a separate section within the motion with [elach palagraph stating an undisputed fact serially numbered and each supported by affidavit(s) or citations identifying specifically the 10cation(s) 0f the mateiialhs) in the record relied upon regatding such fact as required under Rule 56 6 V I R CIV P 56(c)( 1) Nevertheless pursuant to Rule 56(6) [i]fa patty fails to propexly support an assertion of fact or fails to properly address anothel party 5 asseltion of fact as required by Rule 56(c) the court may (3) grant summary judgment if the motion and supporting materials including the facts considered undisputed show that the movant is ‘Dcienddnt referenced GOOleMl Fawkes 67 VI [04(VI Super C! Du. l" 2006) 4 Detendant reterenced Fenster I Dechaben 65 VI 20 (VI Supu Ct A110 8 20I6) Walshx Dalt 2014 VI LEXIS 36(VI Quper Ct June l8 201-1) Wheeler t Bartem 417 U S 402(1974) 011 Chem & Ammzc Workers In! I UNION 1 M13501!!! "46] U § 16% (1959) ‘ [n his motion Defendant defined Real Property as the real property located at 30 C Estate Whim on St Croix ‘5 Parties are reminded to comply with all applicable rules Dam er a! t Mtlltgun SX 18 CV ”4'57 Memorandum Opinion 2020 VI SUPER 99U Pam. 6 01 10 entitled to it VI R CIV P 56(e)(3) Thus Defendant 5 failure to include a statement of undisputed facts does not automatically tender hex motion fatally deficient See e g Hendricks t Pmnmle Servzcev Ll C 72 VI 630 635 (Super Ct March 16 2020) (The court noted that [though a motion fox summary judgment must include a statement of undisputed facts to which the nonmowant must have an opportunity to respond the Count finds that ordeting the parties to provide such statements and to conduct further briefing would be a waste ofjudicial resources and of the parties time and granted Defendants motion for summary judgment) The Court must further note that Plaintiff did not file a xesponse to Defendant s motion The Supreme Court of the Virgin Islands has held that [t]he trial coutt may not accept as true the moving palty s itemization 0f undisputed facts instead the court must satisfy itself that the evidence in the summary judgment recoxds supportsthis relief Vanterpool t Gm t0] the Virguzlslands 63VI 563 583(VI 2015) (quoting Mmtm t Marin: 54 V I 379 389 (V I 2010)) Thus this Count is required to consider the melits of Defendant s motion and grant summary judgment only when the evidence in the summary judgment reconds supports this relief Id 1 Rule 17 of Virgin Islands Rules of Civil Procedure t117 Rule 17 of Virgin Islands Rules of Civil Procedure (hereinafter Rule 17 ) requires that [a]n action must be prosecuted in the name of the real party in interest V I R CIV P l7(a)( 1) However Rule 17 also provides that [t]he court may not dismiss an action for failure to prosecute in the name of the real party in interest until after an objection a reasonable time has been allowed for the real party ininterest to ratify join or be substituted into the action VI R CIV P 17(a)(2) While Virgin Islands Rules of Civil Procedure do not Specify the procedure for raising a Rule l7(a)(l) objection courts have noted that it should be made in a timely manner such as in an Dam er a! i Milltqan 9X 18 CV :27 Memorandum Opinion 2020 VI SUPER 99U Page 7 0| [0 answer or responsive pleading 7 Hess 011 VI Corp i F1110; Dame] 72 VI 676 70] 02 (Super Ct April 8 2020) (Citing For a Techs LLC 1 Premier Research Lain LP No 12 CV 7905 2013 U S Dist LEXIS 171753 5 (N D 111 Dec 5 2013) (citing In )eSzgnaI IntlLLC 579F3d at 487)) In Hen the court found that since the real party in interest is a defense that must be raised at the earliest opportunity the Court finds that John Zink and R&G timely raised it here by moving to dismiss for failure to state a claim Hess 72 V I at 702 Heie Defendant did not raise he: Rule 17(a)(l) objection in an answer 01 iesponsiVe pleading Howevei Defendant indicated in hex motion that Defendant only concluded that Plaintiffs are not the real party in interest upon the conclusion of factual discovery and Plaintiffs failed to produce any evidence ptoving that they have owneiship interest in the teal pioperty located at 30 C Estate Whim on St Croix( Property ) According to the amended scheduling order factual discovery was to be completed by March 31 2019 and Defendant filed this instant motion raising her Rule l7(a)(1) objection on July I 2020 The Coult finds that Defendant timely raised it in this instance To date Plaintiffs have remained silent as to Defendant s Ruie l7(a)(l) objection They failed to file a tesponse t0 Defendant s motion Moreovet even after Defendant filed a notice of Plaintiffs failure to respond to Defendant s motion and repeated thetein that Plaintiffs haw failed to pioduce any evidence proving they have any standing or compensable interest in this lawsuit Plaintiffs still faiied to respond It has now been almost six months since Defendant fiist raised her Rule l7(a)(l) objection Accordingly the Court finds that a reasonable time has been allowed for the real party In Hess the went addressed Rule l7 oi the Federa! Ruies 0t Chi] Procedure (2005 ed ) whieh eontained language similar to Rule 17 Rule l7 ot the Federai Rules 0| Civil Proeedure provides that [M0 aetion shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objeetion tor ratification 0t eommeneement M the aetion by or joinder 0r substitution of the real party in interest and sueh ratitieation joinder or substitution shall have the same effeet as it the aetion had been eommeneed in the name ot the real party in interest Fed R Ci» P [7(a) (2005 ed ) Damon]! 1 leltgan 9X 18 CV 137 Memorandum Opinion 2020 VI SUPER 99U Page 8 of IO in interest to ratify join or be substituted into the action as tequired under Rule 17(a)(2) before this matter may be dismissed ‘][8 The Court will now tum t0 the merits of Defendant s motion and deteimine whethei the evidence supports the Court granting summary judgment in fav01 of Defendant Here Plaintiffs two page complaint simply stated the following 2 On the moming of September 18 2016 Defendant collided with 30 C Estate Whim a propeity owned and/or occupied by Plaintiffs 3 Defendant spoke to officer Cuthbert Cyril and stated that she lost control of her vehicle and collided with 30 C Estate Whim 4 As a resuit of Defendant s negligence and/or gloss negligence Plaintiffs suffeied significant damage to then property No evidence supporting Piaintiffs ownership interest in the Pioperty was attached to the complaint Additionally as noted above even after Defendant iaised her Rule 17(a)(i) objection and moved fox summary judgment Plaintiffs never opposed 0r piesented affirmative evidence disputing Defendant 5‘ aigument Sec Rimer 68 VI at 576 (citing Chapman 58 VI at 436) (internal citations and quotation maiks omitted) (Once the moving party has identified the portions of the rec01d that demonstiate no issue of matetial fact the burden shifts to the non moving patty to present affirmative evidence from which a jury might leasonably return a verdict in his favor ) While Defendant did indicate in her motion that Plaintiffs averred in their discovery responses that there is or was an action to quiet title to the Property in the Supeiior Court of the Virgin Islands and that they are owners by means of adverse possession Plaintiffs never filed a response to Defendant s motion or notice to provide the case number or any evidence supporting their ownership interest in the Property See Rune; 68 V I at 576 (quoting Williams 50 V I 191 at 194) (The non moving paity may not rest upon mete aiiegations [but] must present actual evidence showing a genuine issue for trial ) Here even when the inferences to be drawn from Dam er a! t Millzgan §X 18 CV T47 Memorandum Opinion 2020 VI SUPER 99U Page 9 of H) the underlying facts ate Viewed in the light most favorable to Plaintiffs the Court finds that Plaintiff is evidence that they have ownership interest in the Pioperty failed to amount to mow than a scintilla Kenneth 2020 V I 5 ‘1114 ( [T10 survive summary judgment the nonmoving party s evidence must amount to more than a scintilla but may amount to less (in the evaluation of the court) than a pteponderance ) As such the Court concludes that thete is no genuine dispute as to any material fact regarding Defendant s Rule l7(a)(l) objection Plaintiffs without being the real patty in interest cannot prosecute this mattei See VI R CIV P l7(a)(l) ( An action must be prosecuted in the name of the real party in interest ) More specifically Plaintiffs without having any ownetship interest in the Property cannot claim that they sustained any damages as a result of the alleged single vehicle incident 8 CONCLUSION 919 Based on the foxegoing the Court will giant Defendant s motion and entet summaty judgment of dismissal with ptejudice for failure to prosecute in the name of the teal party in interest Additionally the C0u1t will close this matte: since there are no other pending issues herein An order and judgment consistent with this Memorandum Opinion will be entered contemporaneously herewith DONE and so ORDERED this 8M day ofanember‘ZOZO 8 In their complaint Plaintitfs alleged in that [als a direct and proximate result ol the occurrence made the basis 0t this lawsuit Plaintiffs sulfered significant property damage and that {t]he Defendant 5 action eonstituted negligenee negligence per se and/or gross healiaenee (Compl TR 6 8) In light of the Court s finding as to the element of damages the Count need not teach the other elements of negligenee negligence per se and gross negligence at this juncture It should be noted that Plaintilt s complaint is not Lompliant with Virgin Islands Rules 0t CiVll Proeedure because it did not prmide a short and plain statement of the claim showinCr that the pleader is entitled to reliet with separate designation of eounts and delens‘es‘ to: each claim identified in the pleading as required undet Rule 8 V I R Cl» P 8(a)(2) Parties are again reminded to comply with all applicable rules Dans e! a! 1 Mllllgan SK [8 CV H7 Memorandum Opinion 2020 VI SUPER 99U Page. 1001 IO ATTEST / M Tamara Charles HAROLD W L WILLOCKS Clerk of the Court Presiding Judge of the Superior Court By 2 22 M41262); ourt Clerk Supermorw Dated / 92 ?;2 2%967  SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX HENRY DAVIS AND JANET DAVIS Pl AINTIFFS, Civil No SX 18 CV 337 V ACTION FOR DAMAGES MIRIAM MILLIGAN JURY TRIAL DEMANDED DEFE‘DA‘T CITE AS 2020 VI SUPER 99v Appearances Yohana M Manning, Esq Manning Legal Selvices P C Chlistiansted U S Virgin Islands For Plamtzfi‘s Daryl C Barnes, Esq Paul R Neil, Esq Barnes & Neil LLP Christiansted U S Vilgin Islands F0) Defendant ORDER AND JUDGMENT WILLOCKS Presiding Judge In accordance with the Memorandum Opinion entered contemporaneously herewith it is heteby ORDERED, ADJUDGED, AND DECREED that Defendant s motion for summary judgment filed on July 1 2020 is GRANTED It is fu1thet ORDERED ADJUDGED AND DECREED that summaly judcment of dismissal with prejudice for failule to prosecute in the name of the real patty in interest is ENTERED And it is further ORDERED that this matter is hereby CLOSED Den M er «I 1 Mtllzgcm 9X 18 CV W7 Order and Judgment 2020 VI SUPER 99U PaQL 2 0t 2 DONE and so ORDERED this 5 TX day of Qo€mb€f2020 ATTEST Z £14 2M5 :/_ (M Tamara Charles HAROLD W L WILLOCKS Clerk of the Court Presiding Judge of the Superior Court By (”M 922:2igeméflfi C rt Clerk SW Dated {f %Z %2 J69}???