USVI Public Records

Document text

NOT FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX MARY LUZ GUZMAN PLAINTIFF, | SX-09-CV-106 Vv. ACTION FOR PERSONAL INJURY AND BERNARD G. VICTOR AND 2 PETERS | EMOTIONAL DISTRESS AND DAMAGES REST, L.L.C., DEFENDANTS. | JURY TRIAL DEMANDED MEMORANDUM OPINION THIS MATTER is before the Court on Plaintiffs (“Guzman” or “Plaintiff’) Motion to Strike under Rule 12(f)' of the Federal Rules of Civil Procedure filed on May 11, 2009, and an Amended Motion to Strike on December 1, 2011 pursuant to the Court’s order of October 31, 2011 requiring Plaintiff to provide further specificity. Defendants Bernard G. Victor and 2 Peter’s Rest, L.L.C. (collectively “Defendants” or “Victor” and “2 Peter’s Rest”) filed a response to the original motion to strike on May 26, 2009 and an opposition to amended motion to strike on May 26, 2009. In the response to Plaintiffs original motion, Defendants also filed a request for entry of default on Defendants’ counterclaims pursuant to Rule 55 of the Federal Rules of Civil Procedure. FACTUAL AND PROCEDURAL BACKGROUND In her Verified Complaint filed against Defendants, Plaintiff asserts that Defendant Victor is the sole owner, managing member and alter-ego of “2 Peter’s Rest, L.L.C.” Complaint at § 4. Plaintiff further contends that Defendant 2 Peter’s Rest is the current owner of record of the subject premises where the incidents giving rise to the Verified Complaint took place. Complaint at ¥ 6. As to the incidents, Plaintiff alleges that on or about January 28, 2009, Defendant Victor, without advance notice, permission or court order appeared at the premises” to further harass and intimidate Plaintiff and her customers. Complaint at § 10. She further alleges that while Defendant Victor was interrogating customers and conducting an unauthorized inspection of the premises, he assaulted Plaintiff by hitting her to the ground with his car door, * Rule 12(f) of the Federal Rules of Civil Procedure is made applicable to proceedings in the Superior Court pursuant to Rule 7 of the Rules of the Superior Court—to the extent not inconsistent therewith. The premises referred to in the Verified Complaint is the commercial property described as 2 Peter’s Rest where Plaintiff's commercial business named “The Cool Out Bar and Restaurant” is located. Complaint at ¥ 7. Mary Luz Guzman y. 2 Peters Rest, LLC and Bernard Victor, SX-09-CV-106 MEMORANDUM OPINION Motion to Strike and Motion for Entry of Default causing her serious physical and emotional injuries. Complaint at { 11. Plaintiff further alleges that as a direct and proximate result of the acts of Defendants, the Plaintiff suffered personal injuries to her body, medical expenses, ambulance expenses, hospital expenses, loss of income, loss of capacity to earn income, intentional and/or negligent infliction of emotional distress and mental anguish all of which continue into the future. Complaint at § 12. In their Answer, Defendants deny the allegations of the incidents that took place on January 28, 2009 and filed counterclaims of fraud, intentional infliction of emotional distress, negligent infliction of emotional distress and wrongful institution of civil proceedings. Plaintiff responded by filing her motion to strike arguing that Defendants’ allegations not only fail to state a civil claim upon which relief may be granted, but also the counterclaims allege serious criminal conduct and as such should be stricken as “impertinent, scandalous and extraneous.” In support thereof, Plaintiff further claims that Defendant Victor’s counterclaims of fraud, conspiracy and emotional distress should be stricken because they are insufficient defenses to the assault claim and transparently seek counterclaims to the physical assault of Plaintiff. Plaintiff also points out that Defendant Victor has a criminal record of an assault charge in this jurisdiction and has likewise threatened to bury Plaintiff in legal costs should she dare to proceed with legal action against him. Plaintiff asserts that Defendant Victor’s countersuit for fraud, emotional distress, “wrongful institution of civil proceedings” and conspiracy against Plaintiff is the “case and point” of his limitless vengeance. In Defendants’ opposition, it is argued that none of the allegations that make up Defendants’ counterclaims contain any such “scandalous” or “repugnant” language but, instead, are detailed and specific factual allegations setting forth four separate causes of action against Plaintiff. In support of the opposition, Defendants cite to authority that instructs that merely asserting that proposed matter to be stricken is “scandalous” or “irrelevant” without more is insufficient and that, even if a complaint is redundant or contains irrelevant allegations, that is no basis for a motion to strike absent a showing of prejudice. It also indicates that a claim will not be stricken unless it is certain to have no effect on the outcome of the litigation During the October 31, 2011 status conference proceedings, the Court gave Plaintiff an opportunity to more specifically point out the language in Defendant Victor’s Answer and Counterclaim that Plaintiff was requesting to be stricken. Mary Luz Guzman v. 2 Peters Rest, LLC and Bernard Victor, SX-09-CV-106 MEMORANDUM OPINION Motion to Strike and Motion for Entry of Default “In considering a motion to strike the Court will deem as admitted all of the non-moving party's well-pleaded facts, draw all reasonable inferences in the pleader's favor and resolve all doubts in favor of denying the motion. Flanagan, 2003 U.S. Dist. LEXIS 24211, at *3-4; Wailua Assocs. v. Aetna Cas. and Sur. Co., 183 F .R.D. 550, 553-54 (D.Haw.1998). “A motion to strike redundant, immaterial, impertinent or scandalous matter is also viewed with disfavor as ‘a time waster.’” Flanagan, 2003 U.S. Dist. LEXIS 24211, at *4 (quoting Somerset Pharms., Inc. y. Kimball, 168 F.R .D. 69, 71 (M.D.F1.1996). “The Court will not strike such matter unless it bears no possible relation to the dispute or could confuse the issues.” /d.; Government Guarantee Fund et al. v. Hyatt Corp ., 166 F.R.D. 321, 324 (D.V.1.1996); Delaware Health Care, Inc., v. MCD Holding Co., 893 F.Supp. 1279, 1291-92 (D.Del.1995). “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; see also Glasser vy. Government of the Virgin Islands, 853 F.Supp. 852, 854 (D.V.1.1994),. “A court possesses considerable discretion in disposing of a motion to strike under Rule 12(f).” Krisa v. Equitable Life Assur. Soc., 109 F.Supp.2d 316, 319 (M.D.Pa.2000) (Vanaskie, J.), quoting, North Penn Transfer, Inc. v. Victaulic Comp. of America, 859 F.Supp. 154, 158 (E.D.Pa.1994). A motion to strike for “immateriality or impertinence should not be granted if part of the challenged material is so connected with the subject matter of the suit that it might be deemed to present a question of law or fact that the court ought to hear.” River Road Dev. Corp. v. Carlson Corp.-Northeast. 1990 U.S. Dist. LEXIS 6201, 6221-22, 1990 WL 6092 (E.D.Pa.1990), citing, 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1382, at 826 (“C. Wright & A. Miller’). “The purpose of a motion to strike is to clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters ....”. McInerney y. Moyer Lumber and Hardware, Inc., 244 F.Supp.2d 393, 402 (E.D.Pa.2002) (internal citations omitted). As to paragraph 1, Defendants have voluntarily agreed to withdraw the phrase “the court has Jurisdiction to hear both lawful and unlawful claims of this sort.” The Court agrees that it is has no material or pertinent bearing to the subject matter of the suit and should therefore be stricken Mary Luz Guzman v. 2 Peters Rest, LLC and Bernard Victor, SX-09-CV-106 MEMORANDUM OPINION Motion to Strike and Motion for Entry of Default from Defendants’ Answer. In addition, the Court finds that the following sentence contained in paragraph 4 should likewise be stricken as immaterial to the subject matter of this suit: “Said use of the alter-ego language is a typical method of the Plaintiff to pierce corporate veils.” The Court equally finds the following language contained in paragraph 6 to be impertinent and immaterial to the subject matter of the suit and should be stricken from Defendants’ Answer: “a fraud on this Court and.” Other than the specific phrases discussed above, however, the Court finds that Plaintiff has failed to show that paragraphs 4, 6, 8 and 9 bear no possible relation to the dispute at hand or that it could confuse the issues. Furthermore, the Court finds that the Plaintiff has also failed to show that the counterclaims are not connected with the subject matter of the suit. Most critically, as the Court considers the factual allegations of Defendants’ Answer and finds—as it must—that they are well-plead and as such should be deemed admitted, and in drawing all reasonable inferences in the Defendants’ favour, the Court finds that the factual allegations and counterclaims in Defendants’ Answer genuinely raise issues that may be deemed to present a question of law or fact that the court ought to hear. Defendants’ Motion for Entry of Default Under Rule 47 of the Rules of the Superior Court, ““When a party against whom affirmative relief is sought has failed to appear, plead or otherwise defend as provided by law or these rules, or has failed to appear at the time fixed for trial, the clerk shall enter his default.” Lettsome vy. VI Sea Trans, 52 V.1. 109, 114 (Super.Ct. 2009). Similarly, Rule 55 of the Federal Rules of Civil Procedure permits the entry of default when the party, “has failed to plead or otherwise defend, and that failure is shown by affidavit of otherwise. . ." /d. As the term is generally used, a defendant “‘appears" in an action by making a written submission to the court. Id. at 115. (Citing Lutwin v. City of New York, 106 F.R.D. 502, 504, n.1 (S.D.N.Y. 1985), affd., 795 F.2d 1004 (2nd Cir. 1986)). But, given that defaults are generally disfavored, some courts have interpreted the term more broadly, holding that informal acts like letters or telephone calls can constitute an appearance. /d. (citing Rogers v. Hartford Life and Acc. Ins. Co., 167 F.3d 933, 936-37 (Sth Cir. 1999) (appearance does not require the filing of responsive papers)). There is a split in the Circuits between these two approaches. New York v. Green, 420 F.3d 99, 105 (2nd Mary Luz Guzman vy. 2 Peters Rest, LLC and Bernard Victor, SX-09-CV-106 MEMORANDUM OPINION Motion to Strike and Motion for Entry of Default Plaintiff's Amended Motion to Strike requests the Court to strike the portion of Defendants’ Answer (in paragraphs 1, 4, 6, 8, 9) that exceed a short and plain statement admitting or denying the allegations. With respect to the Defendants’ counterclaims of fraud, conspiracy, intentional or negligent emotional distress and ‘wrongful institution of civil proceedings,” Plaintiff requests that they too should be stricken because they allege facts that are immaterial to the allegations or defenses to Plaintiff's personal injury claims. Plaintiff contends that the counterclaims should be stricken because they have nothing to do with Plaintiffs assault. In sum, Plaintiff argues that the allegations not only fail to state a civil claim upon which relief may be granted, but also that the allegations contained in paragraphs 17-53 allege serious criminal conduct that should be stricken as impertinent, scandalous and extraneous. In opposition, and citing to Bell Atlantic v. Twombly, 550 U.S. 544, 557 (2007), Defendants argue that paragraphs 4, 6, 8 and 9 fairly respond to the allegation and further submits that the Defendants’ responses ensure that the “plain statement’ possesses enough heft to ‘sho[w] that the pleader is entitled to relief? in his counterclaims and affirmative defenses. The Defendants have agreed to voluntarily strike the statement that “the court has jurisdiction to hear both lawful and unlawful claims of this sort.” Also, in order to streamline its case, the Defendants voluntarily dismiss Counterclaim IV and paragraphs 40-50 of its Answer. ANALYSIS Plaintiff's Motion to Strike Rule 12(f) of the Federal Rules of Civil Procedure authorizes the Court to strike from a pleading any insufficient defense or any immaterial, impertinent or scandalous matter. Fed.R.Civ.P. 12(f). Courts generally disfavour motions to strike. Flanagan v. Wyndham Int'l, Inc., No.2002-237, 2003 U.S. Dist. LEXIS 24211, at *3 (D.V.I. Apr. 21, 2003) (noting that motions to strike are “a drastic remedy to be resorted to only when required for the purpose of justice.”); Larsen v. Pennsylvania, 955 F.Supp. 1549, 1582 (M.D.Pa.1997). To prevail on a motion to strike, the moving party must demonstrate that the challenged allegations are so unrelated to the plaintiff's claims as to be “unworthy of any consideration and that their presence in the pleadings will be prejudicial.” Flanagan, 2003 U.S. Dist. LEXIS 24211, at *3 (citing Wright and Miller, Federal Practice and Procedures, Civil 2d § 1380). Mary Luz Guzman y. 2 Peters Rest, LLC and Bernard Victor, SX-09-CV-106 MEMORANDUM OPINION Motion to Strike and Motion for Entry of Default Cir. 2005) (‘prevailing view" is that formal appearance is not required where party has “otherwise indicated .. . a clear purpose to defend the suit."). Jd. Defendants argue that Plaintiff's filing of her motion to strike is an improper response to Defendants’ Answer and Counterclaims, and as such, default should be entered against Plaintiff for failure to plead or otherwise defend against the counterclaims plead in their Answer to Plaintiff's Complaint. In support thereof and citing to United States v. Covey, 2007 U.S. Dist. LEXIS 75141 (D.Ct. Idaho 2007), Defendants argue that default judgment is appropriate pursuant to Fed.R.Civ.P. 55(a) when a litigant files non-responsive documents in answer to a complaint and refuses to file the proper response. Citing to United States v. Torrence, 90 AFTR 2d 6097(E.D. TX 2002) and other state cases, Defendants further argue that entry of default for failure to defend is appropriate when a party’s conduct includes willful violations of court rules, including willful refusal to file an answer to a complaint. Although the Court has for the most part denied Plaintiff's motion to strike, the Court does not find that entry of default on Defendants’ counterclaims against Plaintiff is warranted under the circumstances where Plaintiff's actions in so doing has shown a clear purpose to defend against the Defendants’ counterclaims. CONCLUSION The Court will grant Plaintiff's motion to strike in part, and deny Plaintiff's motion to strike in part. In addition, the Court finds that Plaintiff's motion to strike, although denied in part, was clearly a responsive pleading lodged as a defense to Defendants’ Counterclaims. An order consistent with this opinion will be entered on even date. Dated: 3-+#9-t® ‘i HAROLD W.L. WILLOCKS Judge of the Superior Court ATTEST: Venetia H. Velazquez, Esq. Clerk of t Cours Ye By_, 87 Court Clerk Supervisor ~ Date: 3 lao | |e