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CLARK HUNT, Case Number SX 2015 CV 00585 Plaintiff Action Breach of Contract v. BRADLEY DOWNS et :1] Defendant NOTICE of ENTRY of Memorandum Opinion and Order To Charles E Lockwood Esq Christopher A Kroblin, Esq Gregg R Kronenberger, Esq Manjofie Whaler} Esq Judges ofthe Superior Cgurt IT/law libra_ry/Law Clerks/Bluebook Please take notice that on June 01, 2021 a(n) Memorandum Opinion and Order dated May 28, 2021 was/were entered by the Clerk in the above titled matter Dated June 012 2021 Tamara Charles Clerk of the Court By Janeeh Maranda Court Clerk II CLARK HUNT ! PLAINTIFF, ' Civil No SX 15 CV 585 V ACTION FOR SPECIFIC PERFORMANCE BREACH OF AND COLDWELL BANKER ST CROIX BREACH OF GOOD FAITH AND FAIR REALTY DEALING DEFENDANTS JURY TRIAL DEMANDED BRADLEY DOWNS AND THERESA DOWNS CITE AS 2021 VI SUPER 531$ COUNTER CLAIMANTS, V CLARK HUNT COUNTER DEFENDANT Appearances Charles E Lockwood, Esq Gregg R Kronenberger, Esq Dudley Newman Feuerzeig L L P St Croix, U S Virgin Islands For Plamnfl/ Counter Defendant Clark Hunt Christopher Allen Kroblin, Esq Marjorie Whalen, Esq Kellerhals Ferguson Kroblin PLLC St Thomas, U S Virgin Islands For Defendants/ Counter Clmmams Bradley Downs and Theresa Downs MEMORANDUM OPINION AND ORDER WILLOCKS Presiding Judge ‘][ 1 THIS MATTER is before the Court sua sponte ‘1! 2 On December 2 2015 Plaintiff Clark Hunt (hereinafter Hunt ) filed a verified complaint (Docket Entry No 1)' against Defendant Bradley Downs and Defendant Theresa Downs (hereinafter collectively Downs ), and Defendant Coldwell Banker St Croix Realty (hereinafter Coldwell Banker ) in connection with the sale of Hunt’s residence at #13 Estate Prosperity St Croix, U S Virgin Islands (hereinafter Property ) In the verified complaint Hunt alleged that (i) on September 18, 2015, Downs as buyers, and Hunt as seller entered into a purchase agreement for the sale and purchase of the Property (Comp! ‘1[ 4) (ii) Coldwell Banker was the real estate agent representing Downs (Compl q[ 5), (iii) according to the purchase agreement Coldwell Banker was also the Escrow Agent holding an earnest money deposit in the total amount of Fifty Thousand Dollars ($50 000 00) (hereinafter Earnest Money Deposit ) pending Downs compliance with the terms of the purchase agreement (Comp! ‘1[ 6), (iv) according to the purchase agreement Downs was supposed to deposit an additional One Hundred Thousand Dollars ($100 000 00) (hereinafter Additional Earnest Money Deposit ) on or before September 15 2015 or the receipt of a loan agreement (1d ) (v) according to the purchase agreement, Hunt is entitled to the Earnest Money Deposit and pursue an action for specific performance in the event Downs failed to comply with the terms of the purchase agreement (Compl (ll 7) (vi) Downs breached the terms of the purchase agreement and refused to complete the purchase of the Property (Compl HI 8) and (vii) Coldwell Banker has not released the Earnest Money Deposit to Hunt despite Hunt 3 demand (Compl M l 1 12) Hunt sought inter alia for specific performance for the purchase of stated that the purchase agreement was attached as Exhibit 1 no such exhibit was attached ‘II 3 On February 8 2016 Downs filed an answer and counterclaim against Hunt (Docket Entry No 16) In the counterclaim Downs alleged that (i) Downs as buyers and Hunt, as seller entered into a purchase agreement with an effective date of July 27, 2015, for the sale and purchase of the Property (Counterclaim ‘ll 1) (ii) Downs paid the Earnest Money Deposit in accordance with the purchase agreement (Counterclaim ‘1[ 2) (iii) the purchase agreement contained a Third Party Financing Rider, which allowed Downs to terminate the purchase agreement if third party financing was not approved (Counterclaim ‘fl‘ll 3 4) (iv) Downs applied for third party financing on July 28 2015 and was subsequently denied (Counterclaim ‘|[‘|I 5 6) (v) Downs notified Hunt through his agent by providing written notice of the denial of third party financing (Counterclaim 1H] 7 8) (vi) thereafter the parties attempted to reach an agreement as to the reduction of the purchase price such that third party financing would be approved but no agreement was ever reached (Counterclaim ‘ll 9) (vii) Downs complied with the Third Party Financing Rider and properly terminated the purchase agreement (Counterclaim (II I 1), (viii) according to the purchase agreement, Downs are entitled to the refund of the Earnest Money Deposit and Hunt is in breach by refusing to agree to the release of the Earnest Money Deposit (Counterclaim ‘ll 13) Downs sought for all contractual consequential and other damages permitted by law including interest and their awardable costs and attorneys fees (Docket Entry No 16 p 3 ) Downs attached a copy of the purchase agreement referenced in the counterclaim as Exhibit A2 and a copy of the Third Party Financing Rider as Exhibit B ’ The title of the purchase agreement attached as Exhibit A is RESIDENTIAL PURCHASE AND SALE counterclaim admitted (Docket Entry No 18) Thereafter due to some filing mishaps there were some minor procedural confusions and this matter was closed but subsequently re opened 1‘ On August 4 2017 Hunt filed a motion to dismiss counterclaim (Docket Entry No 45) and an opposition to Downs motion for entry of default and motion to deem counterclaim admitted or in the alternative motion to set aside entry of default (Docket Entry No 46) 3 On March 9 2016 Hunt filed a motion to dismiss without prejudice On March 14 20l6 the Court entered an order whereby the Court dismissed the matter without prejudice However at the time the Court entered the March 14 2016 order the Court was unaware that Downs had already filed responsive pleadings and substantive motions in the Division of St Thomas and St John Thus Downs filed a notice 0t appeal to the Virgin Islands Supreme Court Thereatter the Court entered a notice 01 request for remand on August 3| 2016 which was subsequently granted In its August 3] 2016 notice of request tor remand the Court explained Appellee Clark Hunt (hereinafter Hunt ) filed a Verified Complaint on December 2 2015 The case was assigned to the Honorable Judge Douglas A Brady (hereinafter, Hon Judge Brady ) on December 1 2015 The Hon Judge Brady recused from the matter on December 8 20l5 On February 8 20l6 the Downs filed their Answer and Counterelaim together with a Notice of Filing in Other Division (hereinafter Notice ) in the Division of St Thomas and St John lnadvertently the pleadings were submitted to the Hon Judge Brady 5 chambers ’ As a result this Court was not aware that the Downs had filed any responsive pleadings On March 9 2016 the Downs filed a Motion tor Entry 0t Delault and Motion to Deem Counterelaim Admitted and a Notice In the Division of St Thomas and St John On the same day Hunt filed a Motion to Dismiss Without Prejudice in the Division of St Croix Rather than file the Notice in the St Croix Division. or torward a courtesy copy letting the undersrgned know that they filed their substantive motions in another division the Notiee was filed together with the responsive pleading and the motions in the St Thomas Division As a result this Court was not aware that the Downs had filed their substantive motions and responses When ruling on Hunt 5 Motion to Dismiss the only documents In the tile at that time WLl‘e Hunt 5 Verified Complaint and Hunt s Motion to Dismiss Without Prejudice Because this Court was unaware that the Downs had filed responsive pleadings and substantive motions Hunt 5 Motion to Dismiss Without Prejudice was granted and the case was closed On March 29, 2016 the Downs filed a Motion tor Reconsideration and/or Motion tor Reliet trom Judgment The Court did not rule on the Motion for Reconsideration and/or Motion for Reliet from Judgment because of inadvertence and clerical error The Notice of Appeal was received on August 23, 20l6 Upon review oi the record, this Court intends to rule on the Downs Motion for Reconsideration and/ or Motion tor Relief tram Judgment and/or schedule a hearing on the matter In light of the foregoing the Court requests that in the interest 01 judicial efficiency this matter be remanded to the Superior Court tor further action as permitted by Supreme Court Rule 5 ’The Answer and Counterclaim is initialed in pencil DAB (Douglas A Brady) on the top right hand corner The initials of the judge on the filings indicate where the documents were forwarded to On February 14 2017 the Court entered an order whereby the Court granted Downs motion for reconsideration which the Court subsequently approved and entered on August 31 2017 (Docket Entry No 48) On December 20 2017 the parties submitted a stipulated first amended joint discovery and scheduling plan, which the Court subsequently approved and entered on January 18 2018 (Docket Entry No 62) On August 3 2018 Hunt filed a motion to approve the parties stipulated second amended joint discovery and scheduling plan which the Court subsequently approved and entered on August 9 2018 (Docket Entry No 72) (ll 6 On August 28 2018 Hunt filed a motion for protective order regarding notice of Hunt 8 deposition on August 29 2018 (Docket Entry No 73) On August 31 2018 Downs filed an opposition to Hunt’s motion for protective order regarding notice of Hunt‘s deposition on August 29 2018 and cross motion to compel Hunt to provide dates for his deposition (Docket Entry No 74) On September 5 2018 the Court entered an order whereby the Court granted Downs cross motion to compel Hunt to provide dates for his deposition and ordered Hunt to provide dates for his deposition and that the depositions must be completed no later than October 5 2018 (Docket Entry No 76) On September 19 2018 Hunt filed a motion for reconsideration of the Court 5 September 5 2018 order (Docket Entry No 78) On September 21 2018 Downs filed an opposition to Hunt 5 motion for reconsideration (Docket Entry No 79) ‘1[ 7 On October 2 2018 Hunt filed a motion for permission to appear for deposition by videoconference pursuant to Rule 30(b)(4) of the Virgin Islands Rules of Civil Procedure (Docket Entry No 82) and Downs filed a motion to compel Hunt to appear in the Virgin Islands for his deposition and to extend the October 5 2018 deposition deadline (Docket Entry No 84) On October 9 2018 Downs filed an opposition to Hunt 3 motion for permission to appear for deposition by videoconference pursuant to Rule 30(b)(4) of the Virgin Islands Rules of Civil Entry No 88) and an opposition to Downs motion to compel Hunt to appear in the Virgin Islands for his deposition and cross motion for protective order quashing the October 23 2018 notice of Hunt 8 deposition (Docket Entry No 87) On October 17 2018 Downs filed a reply to Hunt 5 opposition to Downs’ motion to compel Hunt to appear in the Virgin Islands for his deposition and an opposition to Hunt 5 cross motion for protective order quashing the October 23 2018 notice of Hunt 5 deposition (Docket Entry No 89) On October 22 2018 Hunt filed a reply to Downs opposition to Hunt 5 cross motion for protective order quashing the October 23 2018 notice of Hunt 5 deposition (Docket Entry No 90) HI 8 On November 2 2018 Downs filed a motion for order to show cause why sanctions should not be entered against Hunt for failure to attend his deposition (Docket Entry No 92) on November 16 Hunt filed an opposition thereto (Docket Entry No 107) and on December 10 2018 Downs filed a reply thereto (Docket Entry No I 18) (ll 9 On November 7, 2018, Hunt filed a motion to approve a third amended discovery and scheduling plan (Docket Entry No 94) and on November 14 2018 Downs filed an opposition thereto (Docket Entry No 103) On November 16 2018 the Court entered an order whereby the Court approved Hunt 5 third amended discovery and scheduling plan (Docket Entry No 106) On November 21 2018 Hunt filed a reply to Downs opposition to Hunt 5 motion to approve a third amended discovery and scheduling plan (Docket Entry No 1 1 1) 4 On December 13, 2018 Downs filed a motion for reconsideration of the Court 3 November 16, 2018 order approving Hunt’s third Lhasa: on Hunt 5 reply it appears that Hunt was not in receipt of the Court 5 November 16 2018 order when he filed filed an opposition thereto (Docket Entry No 122) (ll 10 On November 16 2018 Downs filed a motion to quash subpoena to wit Hunt’s subpoena to Merchants Commercial Bank Inc (Docket Entry No 105) on November 30 2018 Hunt filed an opposition thereto (Docket Entry No 1 l6) and on December 14 2018 Downs filed a reply thereto (Docket Entry No 121) On December 27 2018 the Court entered an order whereby the Court denied Downs motion (Docket Entry No 123) (ll 11 On November 26 2018 Downs filed a motion to quash subpoena to wit Hunt’s subpoena to First Liberty Mortgage L L C Coldwell Banker Chris Hanley and Lorine Williams (Docket Entry No 112) On December 10 2018 Downs filed a notice of withdrawal of their November 26 2018 motion (Docket Entry No 118) On January 10 2019 the Court entered an order whereby the Court denied Downs motion (Docket Entry No 128) 5 ‘ll 12 On December 13 2018 Downs filed a motion to quash subpoena to wit Hunt 5 subpoena to the U S Virgin Islands Economic Development Authority (Docket Entry No 105) On November 28, 2018, the U S Virgin Islands Economic Development Authority filed a notice of response indicating that it has responded to Hunt 5 subpoena (Docket Entry No 115) On January 9 2019 Hunt filed an opposition to Downs December 13 2018 motion (Docket Entry No 126) ‘ll 13 On February 5 2019 Hunt filed a motion to approve a fourth amended discovery and scheduling plan (Docket Entry No 130) on February 21 2019 Downs filed an opposition thereto (Docket Entry No 132) and on March 12 2019 Hunt filed a reply thereto (Docket Entry No 5 Prior to the Court 5 implementation of the electronic filing system Downs filed multiple filings in this matter in the Division of St Thomas and St John with a Notice 01 Filing in Other Division, which would sometimes cause delay in getting these filings before the Court On December 10 2018, Downs filed their notice of withdrawal of their November 26 2018 motion in the Division of St Thomas and St John with a “Notice of Filing in Other Division scheduling plan (Docket Entry No 135) on August 21 2019 Downs filed an opposition thereto (Docket Entry No 137) and on September 10 2019 Hunt filed a reply thereto (Docket Entry No 138) ‘l[ 14 On August 15 2019 Hunt filed a motion to compel mediation (Docket Entry No 136) On October 29 2019 Hunt filed a notice advising the Court that the Hunt and Downs plan on complete mediation on or before November 30 2019 (Docket Entry No 139) On November 21 2019 the parties filed a mediation report indicating that Hunt and Downs appeared for mediation but [t]he parties have reached a total impasse all issues require Court action (Docket Entry No 140) (ll 15 On December 6 2019 Hunt filed a notice advising that Court that the parties have agreed for Coldwell Banker to turn over the Earnest Money Deposit to be deposited with the Court 5 registry (Docket Entry No 141) The deposit was subsequently rejected by the Court because the funds were not certified ‘|[ 16 On December 20, 2019, Downs filed a motion for sanctions against Hunt pursuant to Rule 90(1) of the Virgin Islands Rules of Civil Procedure for Hunt 3 lack of good faith and failure to attend the court ordered mediation in this matter (Docket Entry No 142), on January 16 2020 Hunt filed an opposition thereto or in the alternative, motion for leave to file further response under seal (Docket Entry No 144) on January 29 2020 Downs filed a reply thereto (Docket Entry No 146) and on January 30 2020 Downs filed a supplement to their reply (Docket Entry No 149) On January 16 2020 Hunt filed a motion to strike Downs December 20 2019 motion (Docket Entry No 143) on January 29 2020 Down filed an opposition thereto (Docket Entry No 147) and on February 19 2020 Hunt filed a reply thereto (Docket Entry No 150) for Coldwell Banker to turn over the Earnest Money Deposit to be deposited with the Court 3 registry (Docket Entry No 151) On April 30 2021 the Court entered an order whereby the Earnest Money Deposit was deposited in the non interest bearing Court’s registry (Docket Entry No 152) DISCUSSION ‘|[ 18 Court will address the outstanding issues and motions in turn 1 Hunt’s Verified Complaint (Docket Entry No 1) ‘II 19 As noted above, while Hunt 5 verified complaint stated that a September 18 2015 purchase agreement was attached as Exhibit 1 no such exhibit was attached However in his motion to dismiss the counterclaim (Docket Entry No 45) Hunt stated that [t]his case arises out of a July 22 2015 Residential Purchase and Sale Contract (attached to the [Hunt 3] verified complaint as Exhibit 1 and attached to [Downs ] answer and counterclaim as Exhibit A) (Docket Entry No 45, pp 1 2 ) While it appears that Hunt disputed the effective date of the purchase agreement to wit Hunt stated the effective date as September 15 2015 in his verified complaint (Docket Entry No l) and July 22 2015 in his motion to dismiss the counterclaim (Docket Entry No 45) and Downs stated the effective date as July 28 2015 in their answer and counterclaim (Docket Entry No 16) Hunt did not dispute and in fact acknowledged and confirmed that the purchase agreement titled RESIDENTIAL PURCHASE AND SALE CONTRACT attached to Downs answer and counterclaim as Exhibit A is the same purchase agreement he referenced and attached in his verified complaint6 Thus, since Hunt 3 verified complaint explicitly indicated his intention to attach the purchase agreement as an exhibit and Hunt explicitly acknowledged and confirmed that attached to Downs answer and counterclaim as Exhibit A is the purchase agreement he intended to attach as Exhibit 1 to his verified complaint, in the interest ofjudicial efficiency, the Court will treat the purchase agreement attached to Downs answer and counterclaim as Exhibit A as the same purchase agreement Hunt referenced and intended to attach to his verified complaint and deem a copy attached to Hunt 5 verified complaint as Exhibit I As such the Court will order that the purchase agreement titled RESIDENTIAL PURCHASE AND SALE CONTRACT attached to Downs answer and counterclaim as Exhibit A will be treated as the purchase agreement Hunt referenced and intended to attach to his verified complaint as Exhibit l and a copy will be deemed attached to Hunt 5 verified complaint as Exhibit 1 The purchase agreement titled RESIDENTIAL PURCHASE AND SALE CONTRACT attached to Downs answer and counterclaim as Exhibit A and to Hunt 5 verified complaint as Exhibit 1 will hereinafter be referred to as the Purchase Agreement (II 20 Additionally while Hunt s verified complaint named Coldwell Banker as a defendant in this matter to date, Coldwell Banker has not appeared or responded to Hunt 5 verified complaint As such, the Court will order Hunt to make an appropriate filing in regard to the defendant who has failed to appear or answer 2 Downs’ Motion for Entry of Default and Motion to Deem Counterclaim Admitted (Docket Entry No 18)] Hunt’s Opposition to Downs’ Motion for Entry of Default and Motion to Deem Counterclaim Admitted, or in the Alternative, Motion to Set Aside Entry of Default (Docket Entry No 46) (ll 21 In their motion for entry of default and motion to deem counterclaim admitted Downs argued that (i) default should be entered against Hunt because Hunt failed to timely answer or otherwise respond to their counterclaim as required under Rule 12(a)( l)(B) of the Federal Rules 0f the Federal Rules of Civil Procedure since Hunt failed to answer or otherwise respond ‘1[ 22 As noted above there were some minor procedural confusions8 that resulted in this matter being closed and then re opened To date no default has been entered against Hunt in this matter On August 4, 2017 Hunt filed a motion to dismiss the counterclaim, so Hunt has ‘otherwise defended’ against the counterclaim 9 As such, the Court will deny Downs’ motion for entry of default and motion to deem counterclaim admitted 3 Hunt’s Motion to Dismiss Counterclaim (Docket Entry No 45) (ll 23 In his motion Hunt argued that the counterclaim should be dismissed pursuant to Rule l2(b)(6) of the Virgin Islands Rules of Civil Procedure for failure to state a claim upon which relief can be granted Hunt made the following assertions in support of his argument (i) the effective date of the Purchase Agreement was July 22 2015 (Docket Entry No 45 p 1) (ii) the Purchase Agreement contained a Third Party Financing Rider (hereinafter TPF Rider ) (Id at pp 3 4) (iii) Downs failed to comply with the terms of the TPF Rider and thus had no right to terminate the Purchase Agreement as stated therein (1d at p 5), (iv) Downs never deposited the Prior to the promulgation of the Virgin Islands Rules of Civil Procedure on March 3] 20I7 the attorneys and the Superior Court of the Virgin Islands routinely applied the Federal Rules of Civil Procedure through Rule 7 oi the Superior Court Rules 3 See supra footnote 3 9 The Court will note that this matter was re opened on February 14 20I7 and Hunt did not tile his motion to dismiss the counterclaim until August 4 20!? and therefore his motion could be considered untimely Nevertheless the Court will deny Downs motion for entry of default and motion to deem counterclaim admitted because this Court has a policy oi lavoring dispositions of cases on their merits rather than procedural detect See Toussamt v Stewart 67 V I 931 947 (2017) ( In keeping with the intent and spirit 01 the rules ofthe Superior Court governing pleadings and amendments decisions on the merits arc lavored and dismissal of claims on the basis 01 such mere technicalities’ are to be avoided ) Baum Popular de PR 1 Paralmut 2017 VI LEXIS l3] at *3 (Super Ct Aug 15 2017) ( [Tlhis Court has a policy of favoring dispositions 01 cases on their merits ) Great Ba) Condo Owners Ass n 1 Passarella 2014 V I LEXIS [25 at 6 (Super Ct Dec 16 2014) ( Because Virgin Islands judicial policy favors decisions on the merits of litigation, trial courts must be mindful that judgments by default are not favored ) Cart) v Mason 2010Vl LEXIS 34 I3 (VI Super Ct May 6 2010)( the law favors dispositions receipt of a loan agreement as required under the Purchase Agreement (Id at p 4), (v) the sale and purchase of the Property as set forth in the Purchase Agreement never closed (Id ) (vi) [t]here is no allegation that any default or failure to perform by the Seller Hunt prevented the transaction from closing (Id) (vii) Downs admit that they are the parties who terminated the [Purchase Agreement] and they claim that the termination was made under the [TPF Rider] (1d ) (viii) [s]ince the Downs have not alleged that Hunt 5 default or failure to perform prevented the purchase transaction from closing the only way the Downs could terminate the Contract is through paragraph 2 of the [TPR Rider] [b]ut by their own admission the Downs did not comply with the terms of that paragraph (Id atp 5) ‘ll 24 Downs did not file an opposition in response a Standard ofRenew ‘II 25 When Downs filed their counterclaim in 2016, the Virgin Islands couns ‘ reviewed the sufficiency of complaints under the heightened ‘plausibility standard adopted by the Supreme Court of the United States Arno v Hess Corp 71 VI 463 492 93 (VI Super Ct Oct 17 2019) However on March 31 2017 the Virgin Islands Supreme Court promulgated the Virgin Islands Rules of Civil Procedure and ‘restore[d] the notice pleading regime that had previously been in effect Id at 493 (quoting Mills Williams v Mapp 67 VI 574 585 (VI 2017) Although the Supreme Court of the Virgin Islands has yet to determine what exactly is required to survive a Rule l2(b)(6) motion to dismiss Id (brackets, ellipsis and citation omitted) Virgin Islands courts have returned to the prior ‘no set of facts standard in the interim ’ See Id (citations omitted) Accordingly even though Downs filed their counterclaim when the prior pleading standard was in effect Clark 5 motion to dismiss which was filed after the Virgin Islands Rules pleading standard pursuant to the current rules See Arno, 71 V I at 494 (‘ Therefore, although the complaints were filed before the 2017 changes, the motions to dismiss which remained pending must be decided under the current rules ) see also Govt of the VI v The ServzceMaster Co LLC 72 V I l 14 131 (V I Super Ct 2019) ( Accordingly even though the Government filed its complaint when the prior pleading standard was in effect the Defendants' motion to dismiss must be decided under the current pleading standard ”) ‘ll 26 Rule l2(b)(6) of the Virgin Islands Rules of Civil Procedure (hereinafter Rule l2(b)(6) ) allows a party to assert the defense of ‘failure to state a claim upon which relief can be granted by motion and move for dismissal ‘0 V I R CW P 12(b)(6) The Rule l2(b)(6) motion tests the sufficiency of the complaint The Virgin Islands is a notice pleading jurisdiction and Rule 8(a)(2) the Virgin Islands Rules of Civil Procedure requires a pleading to contain a short and plain statement of the claim showing that the pleader is entitled to relief V I R CIV P 8(a)(2) As a notice pleading jurisdiction, “[a] complaint is sufficient so long as it adequately alleges facts that put an accused party on notice of claims brought against it Oxley v Sugar Bay Club & Resort Corp 2108 V I LEXIS 81 *3 (V 1 Super Ct May 14 2018) (quoting Mills Wzlhams 67 V I at 585, accordAmo, 71 V I at 501 (‘ Plead the who what where when and how sufficient information to put a defendant on notice of the conduct and actions the plaintiff complains of ’ ’ (brackets and citation omitted» “When ruling on a motion to dismiss for failure to state a claim, the court does not address the merits ’ Oliver v Termmtx Int] C0 , 73 V I 210, 214 (V I Super '0 Since a copy of the Purchase Agreement was attached to Downs counterclaim the Purchase Agreement is part of the pleadings and may be considered without conversion of Hunt 5 motion to dismiss into a motion for summary judgment VI R CW P 12(b)(d)( If on a motion under Rule 12(b)(6) or 12(c) matters outside the pleadings are allegations in the complaint as true and draw all fair inferences from such allegations Arno, 71 V I at 494 (quoting In re Kelvm Manbodh Asbestos LIItg Sezers 47 V I 375 380 (V I Super Ct March 3, 2006)) However, [a]llegations will not be reasonable nor will inferences in favor of the plaintiff be fair where they contradict facts either contained in the public record or judicially noticed by the Court ’ In re Kelvm Manbodh Asbestos Ling Series, 47 V I at 380 b Discussion ‘][ 27 Here Hunt argued” that Downs counterclaim should be dismissed because Downs failed to sufficiently plead a breach of contract claim '7 In Phillip v Marsh Monsanto the Virgin Islands Supreme Court established that a breach of contract claim requires the plaintiff to demonstrate (l) " Although Hunt raised arguments addressing the merits 0t Downs counterclaim the Court will not address the merits and only address the sufficiency of Downs counterclaim Oliver 73 V I at 2 l4( When ruling on a motion to dismiss for failure to state. a claim the court does not address the merits ) p In their counterclaim Downs alleged 1 [Downs] entered into a contract 101' purchase oi [the Property] from [Hunt] with the effective date of July 27 2015 (the Contract I [Exhibit A] 2 In atcordance with the Contract the Downs paid a Fitty Thousand Dollar ($50 000 00) earnest money deposit (the ‘Earnest Money Deposit ) 3 The Contract contained a Third Party Financing Rider( TPF Rider ) 4 The TPF Rider allowed Downs to terminate the Contract it third party financing was not approved 5 Downs applied for third party financing on July 28 20|S 6 Third party financing was denied because appraisal was well below purchase price 7 Downs timely notified Hunt through his agent(s) that financing was not approved 8 Downs provided Hunt through his agent written notice of the denial 0t third party financing the same day it was received by Downs 9 After said notification the parties attempted to reach an agreement as to the reduction of the purchase rice such that the third party financing would be approved No agreement in this regard was ever reached l0 Once received, Downs provided written denial of their loan application (hereinafter the Denial Letter”) to [Hunt] or his agentts) as required by the TPF Rider [Exhibit B} I l The Downs complied with the TPF Rider and properly terminated the Contract l2 The Downs are entitled to refund 0t their Earnest Money Deposit per the Contract 13 [Hunt] breached the Contract by refusing to agree to the release ot the Earnest Money Deposit V I 612 621 (V I 2017) ‘][ 28 As to the first element the Court finds that Downs has sufficiently pled the existence of an agreement between Hunt and Downs to wit, the Purchase Agreement As to the second element, the Court finds that Downs has not sufficiently pled that the Purchase Agreement created a duty for Hunt to refund to Downs the Earnest Money Deposit While Downs alleged that they complied with the TPF Rider and properly terminated the Purchase Agreement Downs failed to plead any facts to demonstrate that Hunt owed such a duty under the Purchase Agreement a duty to refund to Downs the Earnest Money Deposit simply because Downs allegedly complied with the TPF Rider and allegedly properly terminated the Purchase Agreement under the TPF Rider At this juncture the Court 5 inquiry needs not delve into the remaining elements of the breach of contract claim since Downs has failed to sufficiently plead the duty that Hunt allegedly breached ‘I[ 29 Accordingly the Court finds that even liberally construing the pleading in the light most favorable to Downs Downs have not presented a short and plain statement of the claim showing that the pleader is entitled to relief from Hunt nor does the pleading adequately allege facts that put an accused party on notice of claims brought against it Mills Williams, 67 V I at 585 (citation omitted) Accordingly, the Court will grant Hunt 5 motion to dismiss counterclaim and dismiss Downs counterclaim without prejudice 4 Hunt’s Motion for Protective Order Regarding Notice of Hunt’s Deposition on August 29 2018 (Docket Entry No 73) ‘ll 30 On September 5 2018 the Court entered an order whereby the Court granted Downs cross motion to compel Hunt to provide dates for his deposition As such Hunt 5 motion for protective order regarding notice of Hunt 5 deposition on August 29 2018 will be denied as moot Entry No 78)/ Hunt’s Motion for Permission to Appear for Deposition by Videoconference Pursuant Rule 30(b)(4) of the Virgin Islands Rules of Civil Procedure (Docket Entry No 82)/ Downs’ Motion to Compel Hunt to Appear in the Virgin Islands for His Deposition and to Extend the October 5, 2018 Deposition Deadline (Docket Entry No 84)/ Hunt’s Cross Motion for Protective Order Quashing the October 23, 2018 Notice of Hunt’s Deposition (Docket Entry No 87)/ Downs’ Motion for Order to Show Cause Why Sanctions Should Not be Entered Against Hunt for Failure to Attend His Deposition (Docket Entry No 92) ‘I[ 31 At this time it is unclear whether Hunt 5 deposition has occurred As such the Court will order the parties to file a joint notice advising the Court (1) whether Hunt 5 deposition has occurred and (ii) whether any of these motions (Docket Entry Nos 78 84 87 and 92) are moot The Court will reserve ruling on these motions pending receipt of the parties joint notice 6 Downs’ Motion for Reconsideration of the Court’s November 16, 2018 Order Approving Hunt’s Third Amended Discovery and Scheduling Plan (Docket Entry No 120)/ Hunt’s Motion to Approve a Fourth Amended Discovery and Scheduling Plan (Docket Entry No 130)/ Hunt’s Second Motion to Approve a Fourth Amended Discovery and Scheduling Plan (Docket Entry No 135) (l] 32 Here the Court finds that Hunt implicitly withdrew his prior motion to approve a founh amended discovery and scheduling plan when he filed a second motion to approve a fourth amended discovery and scheduling plan See Magras v National Industrial Sermes et a1 , 2021 V U Super 501.] ‘fl8 see alsoe In re Refinery Dust Claims 72 V I 256 290 (Super Ct Dec 13 2019) (citing Mitchell v Gen Eng g Corp 67 V I 271 278 (Super Ct Feb 23 2017) ( a motion can also be deemed withdrawn based on certain actions or inactions of the party who filed the motion ) As such, Hunt 5 motion to approve a fourth amended discovery and scheduling plan will be deemed withdrawn (ll 33 At this time it is unclear whether the parties have completed discovery in this matter which has been pending since 2015 As such the Court will order the parties to file ajoint notice advising (Docket Entry Nos 120 and 135) are moot The Court will reserve ruling on these motions pending receipt of the parties joint notice 7 Downs’ Motion to Quash Subpoena to wit, Hunt’s Subpoena to the U S Virgin Islands Economic DeveIOpment Authority (Docket Entry No 105) ‘l[ 34 As noted above, on November 28 2018 the U S Virgin Islands Economic Development Authority filed a notice of response indicating that it has responded to Hunt 5 subpoena As such Downs’ Motion to Quash Subpoena to wit Hunt 3 Subpoena to the U S Virgin Islands Economic Development Authority will be denied as moot 8 Hunt’s Motion to Compel Mediation (Docket Entry No 136) 11 35 As noted above the parties completed mediation in this matter and filed a mediation report on November 21 2019 As such Hunt 3 motion to compel mediation will be denied as moot 9 Downs’ Motion for Sanctions Against Hunt Pursuant to Rule 90(1) of the Virgin Islands Rules of Civil Procedure for Hunt’s “Lack of Good Faith and Failure to Attend the Court Ordered Mediation in this Matter” (Docket Entry No 142)/ Hunt’s Opposition Thereto or in the Alternative, Motion for Leave to File Further Response Under Seal (Docket Entry No 144)/ Hunt’s Motion to Strike Downs’ Motion for Sanctions (Docket Entry No 143) <[[ 36 The Court will issue a separate ruling as to these motions (Docket Entry No 142 143 and 144) CONCLUSION Based on the foregoing, it is hereby ORDERED that the purchase agreement titled RESIDENTIAL PURCHASE AND SALE CONTRACT’ attached to Downs answer and counterclaim as Exhibit A shall be treated as the purchase agreement Hunt referenced and intended to attach to his verified complaint as further ORDERED that Hunt shall make an appropriate filing in regard to the defendant who has failed to appear or answer It is further ORDERED that Downs motion for entry of default and motion to deem counterclaim admitted (Docket Entry No 18) is DENIED It is further ORDERED that Hunt 5 motion to dismiss counterclaim (Docket Entry No 45) is GRANTED and Downs counterclaim is DISMISSED WITHOUT PREJUDICE It is further ORDERED that Hunt’s motion for protective order regarding notice of Hunt 3 deposition on August 29 2018 (Docket Entry No 73) is DENIED AS MOOT It is further ORDERED that Hunt 5 motion to approve a fourth amended discovery and scheduling plan (Docket Entry No 130) is DEEMED WITHDRAWN It is further ORDERED that within thirty (30) days from the date of entry of this Memorandum Opinion and Order the parties shall file a joint notice advising the Court of the following (i) whether Hunt 3 deposition has occurred (ii) whether the parties have completed discovery in this matter (iii) if discovery has not been completed then what remains to be done in discovery; (iv) 3:1:ther any of these motions (Docket Entry Nos 78 84 87 92 [20 and 135) are moot The Court will reserve ruling on these motions (Docket Entry Nos 78 84 87 92 120 and 135) pending receipt of the parties joint notice It is further ORDERED that Downs Motion to Quash Subpoena to wit Hunt 8 Subpoena t0 the U 8 Virgin Islands Economic Development Authority is DENIED AS MOOT And it is further ORDERED that Hunt 5 motion to compel mediation is DENIED AS MOOT ATTEST MM Tamara Charles HAROLD W L WILLOCKS Clerk of the Count Presiding Judge of the Superior Court 33$ W curt ClankWI Dated &[E [(20 é Z