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SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN VIET DOAN HO, ) ) Plaintiff, ) ) ) v. ) CASE NO. ST-14-CV-457 ) TAI HUU VU, HIEP VAN LUONG, and PRO NAILS, ) INC.,! ) ) Defendants. ) ) MEMORANDUM OPINION Pending before the Court is Plaintiff's December 23, 2014, Motion for Partial Summary Judgment. For the following reasons, Plaintiff's motion will be granted in part and denied in part. FACTUAL AND PROCEDURAL HISTORY On October 1, 2014, Plaintiff filed a Complaint alleging that Defendants Tai Huu Vu and Hiep Van Luong committed an assault and battery upon him and that Defendant Pro Nails, Inc., should be held vicariously liable for the assault and battery. Defendants filed a joint Answer on October 17, 2014, and raised several defenses, asserting that Defendants were acting in defense of others and in defense of property and that Plaintiff consented to physical contact. Following Defendant Luong’s guilty plea to one count of instigating or aiding a fight in violation of 14 V.LC. § 623 in Case No. ST-13-CR-560, Magistrate Henry V. ! Through an Order entered February 5, 2015, the Court dismissed this action against Pro Nails, Inc., based on a Stipulation of Dismissal executed by counsel for Plaintiff and Pro Nails, Inc. Viet Doan Ho v. Tai Huu Vu, et al. Case No. ST-14-CV-457 Memorandum Opinion, July 16, 2015 Carr, III, entered Judgment against Luong on July 30, 2014. On October 6, 2014, Magistrate Carr entered Judgment against Defendant Vu in Case No. ST-13-CR-556 following the acceptance of Vu’s guilty plea to one count of simple assault and battery in violation of 14 V.LC. §§ 292 and 299. Plaintiff then filed his Motion for Partial Summary Judgment, and Defendants filed an Opposition on January 29, 2015. Subsequently, Defendant Pro Nails, Inc. was dismissed from this case. STANDARD Rule 56 of the Federal Rules of Civil Procedure, made applicable to the Virgin Islands Superior Court through Rule 7 of the Rules of the Superior Court, provides that summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In considering a motion for summary judgment, a court must “draw ... all reasonable inferences from the underlying facts in the light most favorable to the non-moving party.”* An issue is “genuine” if a reasonable jury could possibly hold in the non-movant’s favor with regard to that issue.* ANALYSIS Plaintiff moves for partial summary judgment on the issue of liability, contending that Defendants are collaterally estopped from relitigating the issue of whether they assaulted and battered Plaintiff based on the convictions entered against Defendants Vu 2 Battaglia v. McKendry, 233 F.3d 720, 722 (3d Cir. 2000). 3 Andersen v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Viet Doan Ho v. Tai Huu Vu, et al. Case No. ST-14-CV-457 Memorandum Opinion, July 16, 2015 and Luong by the Magistrate. Defendants opposed the motion on the grounds that Defendant Pro Nails, Inc., was not a party to the criminal proceedings and that Defendant Luong was not convicted of assault and battery. Given that Pro Nails, Inc. has been dismissed from this action, the portion of Plaintiff's motion and Defendant’s opposition pertaining to Defendant Pro Nails, Inc. is moot. Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Defendants have raised a valid argument concerning Plaintiff's motion as it pertains to Defendant Luong. Simply put, Luong did not plead guilty to assault and battery by using unlawful violence against Plaintiff with the intent to injure him.* Instead, he pled guilty to violating 14 V.I-C. § 623, which provides that, “Whoever engages in, instigates, aids, encourages, or does any act to further a contention or a fight, between two or more persons shall be fined not more than $100 or imprisoned not more than 90 days, or both.” A conviction of the crime of aiding or instigating a fight docs not establish all the clements necessary to prove the torts of assault and battery. The tort of assault is embodied in Restatement (Second) of Torts § 21, which establishes that, ‘(1) An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such 4 Gilbert v. People of the Virgin Islands, 52 V.1. 350, 364, 2009 V.I. Supreme LEXIS 42, *26, 2009 WL 3297267 (VI. 2009) (citing Ashe v. Swenson, 397 U.S. 436, 443 (1970)). 514 V.1.C. § 292 directs that, “Whoever uses any unlawful violence upon the person of another with intent to injure him, whatever be the means or the degree of violence used, commits an assault and battery.” Viet Doan Ho v. Tai Huu Vu, et al. Case No. ST-14-CV-457 Memorandum Opinion, July 16, 2015 ”© The tort of battery is described in Restatement (Second) of imminent apprehension. Torts § 13, which provides that, “An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results.” Based on the facts presented by Plaintiff, the Court cannot find as matter of law that Defendant Luong intended to “cause a harmful or offensive contact” with Plaintiff or with a third person, “or an imminent apprehension of such a contact,”® and that Plaintiff was either “put in such imminent apprehension” or “a harmful contact [with the Plaintiff occurred] directly or indirectly.”'° As a result, Plaintiffs Motion for Partial Summary Judgment will be denied as to Defendant Luong. 6 Applying the analysis required by Banks v, Int'l Rental & Leasing Corp., 55 V.1. 967 (V.I. 2011), the Court finds that Restatement (Second) of Torts § 21 has been adopted in Archer v. Ramsay Motors, 1985 V.I. LEXIS 7, *15, 21 V.I. 540, 547 (V.I. Terr. Ct. 1985). In addition, a review of the case citations listed in the Restatement (Second) of Torts § 21 suggests that a majority of jurisdictions have adopted a rule similar to the Restatement (Second) of Torts § 21. Finally, considering the apparent widespread application of this rule in a majority of jurisdictions and the absence of an identifiable minority rule, the Court finds that the Restatement (Second) of Torts § 21 represents the soundest rule for the Virgin Islands and is in accord with local public policy. ” Again applying the analysis required by Banks, the Court finds that Restatement (Second) of Torts § 13 has not been adopted by courts in this jurisdiction. However, in Manbodh v. Hess Oil VI. Corp.(In re Manbodh Asbestos Litigation Series), 2005 V.1. LEXIS 24, *48, 47 V.L 215, 243 (V.I. Super. Ct. 2005), the court adopted Restatement (First) of Torts § 13, a precursor to Restatement (Second) of Torts § 13. A review of the case citations listed in the Restatement (Second) of Torts § 13 suggests that a majority of jurisdictions have adopted a rule similar to the Restatement (Second) of Torts § 13. Finally, considering the apparent widespread application of this rule in a majority of jurisdictions and the absence of an identifiable minority rule, the Court finds that the Restatement (Second) of Torts § 13 represents the soundest rule for the Virgin Islands and is in accord with local public policy. ® Restatement (Second) of Torts §§ 13 and 21. ° Restatement (Second) of Torts § 21. 10 Restatement (Second) of Torts § 13. Viet Doan Ho v. Tai Huu Vu, et al. Case No. ST-14-CV-457 Memorandum Opinion, July 16, 2015 On the other hand, the Court will grant Plaintiff partial summary judgment as to Defendant Vu. Defendants did not raise any arguments on behalf of Defendant Vu in their Opposition. Consequently, Defendant Vu has waived any possible defenses to Plaintiff's motion. In addition, a conviction of the crime of assault and battery establishes the ultimate facts necessary to prove the torts of assault and battery. Courts in the Virgin Islands have determined that the facts necessary to prove a violation of 14 V.LC. §§ 292, 299, are interchangeable with the facts necessary to prove the tort of assault.'! As a result, summary judgment has been entered on the issue of liability in a civil action asserting the tort of assault and battery when a guilty plea was entered for a criminal offense based on 4% + the same facts. '* By entering a guilty plea concerning his assault and battery of Plaintiff, Defendant Vu waived his opportunity to litigate this issue in both the criminal and civil context. As a result, Plaintiffs Motion for Partial Summary Judgment will be granted concerning Defendant Vu. An Order consistent with this Opinion shall follow. Dated: July #4, 2015 2 a — aE HON. MICHAEL C. DUNSTON ATTEST: Estrella H. George JUDGE OF THE SUPERIOR COURT OF THE VIRGIN ISLANDS 11 See, e.g., Archer v. Ramsay Motors, 1985 V.I. LEXIS 7, *15, 21 V.L. 540, 547 (V.I. Terr. Ct. 1985) (“the Court finds that Ramsay did not have the requisite intent to injure Archer’ (citing 14 V.1.C. § 291 et seq.; Restatement (Second) of Torts, § 21, comment f.)) 12 Bower v. O'Hara, 759 F.2d 1117, 1119 (3d Cir. V.I. 1985).