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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN ) ALPHONSE SEBASTIEN, ) ) CASE NO. ST-14-CV-289 Plaintiff, ) VS. ) ACTION FOR ) NEGLIGENCE COMERCIALIZADORA GENERAL DE ST. ) THOMAS, LLC d/b/a MODERN SATELLITE; ) DISH NETWORK CORPORATION; DISH ) NETWORK L.L.C.; TOMAS J. ) MARTINEZ-SERRANO; and ) JURY TRIAL ENRIQUE GARCIA, ) DEMANDED ) Defendants. ) ) Cite as 2019 V.I. 109U MEMORANDUM OPINION {1 THIS MATTER is before the Court on Defendant Enrique Garcia’s Motion to Dismiss Plaintiff's Second Amended Complaint, filed January 8, 2016 (the “Motion to Dismiss”).! For the reasons set forth herein, Defendant Garcia’s Motion to Dismiss will be denied. Relevant Background q2 On January 31, 2013, Plaintiff Alphonse Sebastien (“Sebastien”) and Defendant Tomas J. Martinez-Serrano (“Serrano”) were involved in a vehicular collision. According to the Verified Second Amended Complaint (the “Complaint”), Sebastien was driving his car on St. Thomas, U.S. Virgin Islands, at approximately 11:51 a.m. when he was approached by an ambulance coming from the opposite ! The Motion to Dismiss is fully briefed. rrr Sebastien v. Modern Satellite et al. Case No. ST-14-CV-289 Cite as 2019 V.I. 109U Memorandum Opinion direction, flashing its lights and sounding its siren. Compl. {{ 12,16. Sebastien states that he pulled over to the side of the road to yield the right-of-way to the ambulance. Compl. § 17. Serrano, who was operating a vehicle behind Sebastien, did not yield to the ambulance and instead continued driving. Compl. 4 10,18. Serrano attempted to avoid hitting Sebastien’s vehicle by swerving out into traffic, but he was unable to do so successfully. Compl. § 19. Serrano collided with Sebastien’s vehicle, resulting in damage to the vehicle and injuries to Sebastien. Id. At the time of the incident, Serrano was employed by Defendant Comercializadora General de St. Thomas, LLC d/b/a Modern Satellite, LLC (“Modern Satellite”), a limited liability company with its principal place of business on St. Thomas, U.S.V.I. The vehicle Serrano was operating at the time of the incident was registered to Defendant Enrique Garcia (“Garcia”), the Director of Modern Satellite. Modern Satellite was, at the time, an Authorized Retailer of DISH Network under the terms of a DISH Network L.L.C. Retailer Agreement. Garcia Dep. 14:23-15:4-21; 16:4-25; 17:23-25; 18:2-19. {3 Count IV of Sebastien’s Complaint alleges Garcia is liable for Serrano’s actions because (i) the vehicle Serrano was driving at the time of the accident was owned by Garcia, (ii) Garcia had authorized Serrano to use the vehicle for his employment with Modern Satellite, and (iii) Garcia knew Serrano did not have a Virgin Islands driver’s license and was not versed in Virgin Islands traffic laws. Compl. { 48-50. {4 Sebastien filed his original complaint on June 4, 2014, and he amended it on August 25, 2014. However, Sebastian did not seek to name Garcia as a defendant a __eee rrree Sebastien v. Modern Satellite et al. Case No. ST-14-CV-289 Cite as 2019 V.1. 109U Memorandum Opinion until January 16, 2015 when Sebastian filed a Motion to Amend Verified First Amended Complaint (the “Motion to Amend”), to which he attached a copy of his proposed Verified Second Amended Complaint (naming Garcia as a defendant for the first time). Sebastien filed the instant Second Amended Complaint on March 4, 2015. On September 21, 2015, this Court granted Sebastien’s Motion to Amend and deemed his amended Complaint filed. {5 Garcia moves to dismiss Count IV of Sebastien’s Complaint, claiming that (i) the statute of limitations has run, and (ii) Sebastien has failed to state a cause of action against Garcia under Fed. R. Civ. P. 12(b)(6).? Legal Standard 46 Pursuant to Virgin Islands Code ANN. tit. 5 § 31(5)(A), a cause of action for “any injury to the person or rights of another not arising in contract .. .” must be filed within two (2) years of the injury at issue. 47 Fed. R. Civ. P. Rule 12(b)(6) provides that “[e]very defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: . . . (6) failure to state a claim upon which relief can be granted...” Fed. R. Civ. P. Rule 12. 2 Counts | and It of the Complaint pertain to Modern Satellite and DISH; Count II of the Complaint pertains only to Serrano. rrr Sebastien v. Modern Satellite et al. Case No. ST-14-CV-289 Cite as 2019 V.1. 109U Memorandum Opinion Discussion I. Sebastien’s Negligence Claim is Not Time Barred {8 Garcia argues that Sebastien’s negligence claim is barred by the statute of limitations. He asserts that a negligence claim carries a two-year statute of limitations period and contends that the instant Complaint, naming Garcia for the first time, was filed outside of the two year limitations period. He further argues that Sebastien was put on notice of his ability to file a claim against Garcia when Sebastien received a copy of the police report, naming Garcia as the owner of the vehicle.® 49 An assertion that a plaintiff has not met the applicable statute of limitation functions as an affirmative defense. Thus, the defendant carries the burden of identifying the applicable statute and producing evidence that demonstrates the plaintiff has not met the statutory requirement. Sebastien’s Complaint alleges the vehicular accident occurred on January 31, 2013. The police report associated with the incident states Garcia was the owner of the vehicle driven by Serrano. Assuming arguendo that the police report put Sebastien on notice of any potential claims that he may have against Garcia on the day that the incident occurred, the limitations period to file a negligence claim expired on January 31, 2015. Title 5 V.I.C. § 31(5)(A). 3 As proof that Sebastien had notice, Garcia notes that Sebastien attached a copy of said police report to the initial Complaint. Sebastien v. Modern Satellite et al. Case No. ST-14-CV-289 Cite as 2019 V.1. 109U Memorandum Opinion To reiterate, Sebastien filed his Motion to Amend on January 16, 2015, and then filed his Second Amended Complaint on March 4, 2015.4 410 Sebastien argues that the statute of limitations was tolled by the pendency of his Motion to Amend Verified First Amended Complaint, which was filed within two years of the accident.5 In support of this contention, Sebastien cites to Jeppesen v. V.L Pleasure Boats, Inc., 20 V.I. 397, 403 (V.I. Super. Ct. 1984) (superseded on other grounds). In Jeppesen, the court held that “[t]he statute of limitations was tolled during the period which [a] motion to amend was pending before the Court.” Jeppesen, 20 V.I. at 403. Citing Jeppesen, the court in Jones v. L.S. Holdings, Inc., 2010 V.I. LEXIS 10 (V.I. Super 2010), also held that “[t]he statute of limitations period is tolled while the Court considers a motion.” Jones v. L.S. Holdings, Inc., 2010 V.I. LEXIS 10, *6 (citing Jeppesen). This Court has already established that the Motion to Amend was filed within two years of the accident, and in an Order entered September 21, 2015, which granted Sebastian’s Motion To Amend, the Court noted that the statute of limitations had not lapsed at the time Sebastien moved to amend the First Amended Complaint. In the same Order, the Court deemed the Complaint filed and dismissed a motion to dismiss Sebastien’s amended complaint as moot. 4 Albeit, without an order of this Court granting the requisite Motion to Amend, as the Order granting the Motion To Amend was not entered until September 21, 2015. 5 Sebastian further contends that the discovery rule applies to toll the statute of limitations because—even though the police report named Garcia as the vehicle’s owner—he had no way of knowing at that time whether Garcia entrusted the vehicle to Serrano. Sebastien proffers the factual assertion that Sebastien first learned of Garcia’s entrustment of the vehicle to Serrano in a conversation with defense counsel in late 2014 or early 2015. The Court need not address this argument here, as the statute of limitations issue is decided on other grounds. ere Sebastien v. Modern Satellite et al. Case No. ST-14-CV-289 Cite as 2019 V.I. 109U Memorandum Opinion Therefore, no further analysis regarding the statute of limitations claim is necessary. The Complaint was filed in a timely manner, within the applicable statute of limitations period. Jeppesen v. V.I. Pleasure Boats, Inc. and Jones v. L.S. Holdings, Inc. II. Motion to Dismiss for Failure to State a Claim {11 Garcia alleges that Count IV of Sebastien’s Complaint is deficient and should be dismissed under Fed. R. Civ. P. 12(b)(6). In analyzing the 12(b)(6) issue, Garcia relies 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., Fleming v. Cruz, 62 V.I. 702, 710, 2015 V.I. Supreme LEXIS 16; Brady v. Cintron, 55 V.I. 802, 823 (V.I. 2011); Robles v. HOVENSA, L.L.C., 49 V.1. 491, 500 (V.I. 2008). 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, 67 V.1. 574, 585 (V.I. 2017). 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 errr Sebastien v. Modern Satellite et al. Case No. ST-14-CV-289 Cite as 2019 V.I. 109U Memorandum Opinion the application of the Virgin Islands Rules of Civil Procedure.” Carter v. Univ. of the V.L, 2017 V.I. LEXIS 129, at *4 (V.I. Super. Ct. 2017) (emphasis added).® 412 Inthe instant matter, the Motion to Dismiss was filed more than a year before the Court adopted the V.I. Rules of Civil Procedure. {13 VI. R. Civ. P. 8(a)(2) specifies this is a notice pleading jurisdiction and requires a complaint must set forth “a short and plain statement of the claim showing that the pleader is entitled to relief...” On the other hand, when considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court conducts its analysis under the assumption that all facts (as opposed to mere legal conclusions) pleaded by the non-movant are true. Joseph v. Bureau of Corrections, 54 V.I. 644, 650 (V.I. 2011). In evaluating the sufficiency of pleadings, the Court identifies the legal elements of the claimant’s cause of action; identifies well-pleaded factual allegations; and compares the well-pleaded allegations against the legal elements and assesses whether those allegations, if true, would plausibly lead to the conclusion that the claimant is entitled to relief. Joseph, 54 V.I. at 649-650. “[W]here there are well- pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief.” Brady, 55 V.I. at 823. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Fleming, 62 8 See also, V.I. R. Civ. P. 1-1(c){2){B) (“{t]hese 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.”) OOOO TCT Sebastien v. Modern Satellite et al. Case No. ST-14-CV-289 Cite as 2019 V.!. 109U Memorandum Opinion V.1. at 710 (citing Twombly, 550 U.S. at 678 (internal quotations omitted)). When considering if there are facts in the Complaint sufficient to show plausible entitlement to relief, the Court disregards any allegations in the Complaint which are merely “labels and conclusions [or] a formulaic recitation of the elements.” Twombly, 550 U.S. at 555. If the remaining facts are sufficient enough for the court to draw a reasonable inference that the defendant is liable based on the elements the plaintiff must plead, then the claim is considered plausible. Id. Determining whether a complaint states “a plausible claim for relief” is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. When deciding whether to grant a 12(b)(6) motion to dismiss, a court may consider extrinsic materials attached to the pleadings. See Benjamin v. AIG Ins. Co. of P.R., 56 V.1. 558, 566 (V.I. 2012). 414 Analyzing whether an “injustice or infeasibility” to Garcia would result from the application of the new Rules, the Court finds it is much more difficult for a claim to survive an analysis under Iqbal and Twombly, than to survive a V.I. R. Civ. P. 8(a)2 notice pleading standard. Had the Court considered the Motion To Dismiss before the adoption of the V.I. Rules of Civil Procedure, Garcia would have had a better chance of succeeding on his motion to dismiss. Therefore, it is more equitable to Garcia to analyze the claim under the plausibility standard required by Iqbal and Twombly and their progeny. To do otherwise would potentially result in an injustice to Garcia. Therefore, the Court will consider his motion under the stricter standard. | Sebastien v. Modern Satellite et al. Case No. ST-14-CV-289 Cite as 2019 V.I. 109U Memorandum Opinion {15 Garcia first argues that Sebastien’s simple claim of “negligence” in Count IV of the Complaint is intended to be a claim of negligent entrustment. The Court agrees. Thus, in order to survive Garcia’s Motion to Dismiss, the Complaint must plausibly assert four elements to state a claim for negligent entrustment: In order to prevail on a claim of negligent entrustment, a plaintiff must establish the following: (1) the defendant supplied a chattel to a third person; (2) likelihood that such third person because of youth, inexperience, or otherwise would use the chattel in a manner involving unreasonable risk of harm to himself and others whom the defendant should expect to be endangered; (3) the defendant knew or had reason to know of such a likelihood; and 4) proximate cause of the harm to plaintiff by conduct of the third person. Dorsett v. Blomquist, 2017 V.I. LEXIS 238, *3-4 (V.I. Super. Ct. 2017).7 It is undisputed that Garcia gave his vehicle to Serrano to use, Garcia Dep. 38:12-23, 71:10-12; Compl. 4 39, which satisfies the first prong of the four elements of negligent entrustment. Therefore, the Court must only evaluate whether the Complaint has adequately pled the remaining three elements to allege a cause of action for negligent entrustment. {16 The Complaint asserts that Serrano did not have a Virgin Islands driver’s license and was not versed in the traffic laws of the Virgin Islands. Compl. {| 50. Further, the Complaint alleges that “[i]t was foreseeable that failure to train Serrano 7 The court in Dorsett relied on the Banks analysis performed in Faulknor v. Gov't of the Virgin Islands, 60 V.I. 65, 88-89 (V.I. Super. Ct. 2014), establishing the elements for a claim of negligent entrustment. The Dorsett court adopted the Fau/knor decision, holding that “negligent entrustment as provided in Restatement (Second) of Torts § 390 should be adopted as a common taw cause of action in the Virgin Islands.” Dorsett, 2017 V.1. LEXIS 23, *4 n.10. 2 | Sebastien v. Modern Satellite et al. Case No. ST-14-CV-289 Cite as 2019 V.I, 109U Memorandum Opinion when he did not have a Virgin Islands driver’s license would result in traffic safety violations and accidents.” Compl. 455. Garcia contends that, although Sebastien’s claim that Serrano was not trained in the laws of the Virgin Islands is entitled to the presumption of truth, “[Sebastien’s] allegation that it was foreseeable that this would result in traffic safety violations and accidents is a conclusory statement . . . not entitled to the presumption of truth.” Mot. to Dismiss 9. In a previous Opinion in this matter, filed May 20, 2019 (the “May 20 Opinion”), this Court found that, although not in possession of a Virgin Islands driver’s license, Serrano was in fact in possession of a valid driver’s license issued in Puerto Rico. Sebastien v. Satellite Enter. Suc. et al, 2019 VI Super 71U, § 21; see also Garcia Dep. 64:1-4. Moreover, as Serrano had been in the Virgin Islands for less than three months at the time of the incident, the Court found that he was lawfully operating the vehicle at the time of the accident, per Virgin Islands Code. Id., { 20. The Court also held that Sebastien had not presented any facts to support a claim that Serrano was not competent to drive in the Virgin Islands or elsewhere. Id. However, those claims were pertaining to G) a different defendant (DISH Network) in this matter, and (ii) the question of whether DISH Network was in an employer/employee relationship with Serrano sufficient to incur liability with regard to Serrano’s driving. Here, however, Garcia hired Serrano in Puerto Rico and was directly responsible for ensuring that he was competent to operate a vehicle in the Territory. As evidence of Serrano’s incompetence, Sebastien alleges that Serrano (i) failed to yield the right-of-way to the ambulance, (ii) failed to maintain a safe distance behind Sebastien, and (iii) Sebastien v. Modern Satellite et al. Case No. ST-14-CV-289 Cite as 2019 V.I. 109U Memorandum Opinion negligently collided with Sebastien in violation of Virgin Islands law. Compl. § 53. Taking the allegations in the light most favorable to Sebastien, it is plausible that there was some likelihood that Serrano might operate the vehicle in an unreasonably unsafe manner.’ Therefore, the second element of the claim is met. 417 Regarding the third element of the claim, Sebastien asserts that (i) Garcia authorized Serrano to use his vehicle in the scope of his employment with Modern Satellite and (ii) Garcia knew Serrano did not have a valid Virgin Islands driver’s license and was not versed in the traffic laws of the Virgin Island and therefore, Garcia knew or should have known that there was a likelihood Serrano might operate the vehicle in an unsafe manner. Prior to the incident in question, Serrano had worked for Garcia on and off as an independent contractor in Puerto Rico for somewhere between one year and a year and a half. Garcia Dep. 23:6-25. At the time of the incident, Modern Satellite employed only two individuals doing installation and service work. Garcia Dep. 21:3-22:2. Again, while the Court, in the May 20 Opinion, found that Defendant DISH Network was too attenuated from the incident to know or have any reason to know that Serrano might not be competent to drive in the Virgin Islands, here, the Court finds that Sebastian’s allegations could plausibly lead to the conclusion that Garcia knew or might have had reason to know 8 Garcia asserts that Sebastien has provided only conclusory allegations of Serrano’s incompetence, but Sebastien is under no requirement to prove his case in the Complaint, only to plead with plausibility the elements of the charge. Garcia similarly contends that Sebastien’s assertion that Serrano was driving illegally is also a conclusory statement. However, the police report and Serrano’s admission as set forth in the Complaint, that he had failed to stop when he heard the ambulance approaching, would suggest otherwise. Compl. 41 19. | Sebastien v. Modern Satellite et al. Case No. ST-14-CV-289 Cite as 2019 V.1. 109U Memorandum Opinion that Serrano’s lack of experience operating a vehicle in the Virgin Islands could lead to an accident. Therefore, the third element of the negligent entrustment claim 1s also satisfied. 418 Finally, the parties do not question that Serrano is the proximate cause of the harm to Sebastien, satisfying the fourth prong of the claim. Therefore, Sebastien’s Complaint provides factual allegations with regard to Garcia’s potential liability, which, if accepted as true, “state a claim to relief that is plausible on its face.” Fleming, 62 V.I. at 710. CONCLUSION 419 The Court finds that Plaintiff's Second Amended Complaint is not barred by the statute of limitations. {20 The Court further finds that Plaintiff's Second Amended Complaint has pled the elements of a claim of negligent entrustment against Garcia sufficient to survive the instant Motion to Dismiss. {21 Therefore, Defendant Garcia’s Motion to Dismiss will be denied. An Order consistent with this Memorandum Opinion will be entered. gust 2019 [AV CL Vyuetit,, DATED ; y Kathleen Mackay , ATTES Judge of the Superior Court ESTR H. GEORGE of the Virgin Islands Clerk of the Court BY: OI BOYNES TYSON hief Deputy lerk x ‘f / D014