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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN ) WAYNE ARCHIBALD ) ) CASE NO ST 16 CV 714 Plaintiff ) ) ACTION FOR DAMAGES vs ) ) ) THE UNIVERSITY OF THE VIRGIN ISLANDS ) JURY TRIAL DEMANDED DAVID HALL PRESIDENT INDIVIDUALLY ) AND IN HIS OFFICIAL CAPACITY AS ) PRESIDENT OF THE UNIVERSITY OF THE ) VIRGIN ISLANDS CAMILLE MCKAYLE ) INDIVIDUALLY AND IN HER OFFICIAL ) CAPACITY AS PROVOST OF THE ) UNIVERSITY OF THE VIRGIN ISLANDS ) ) Defendants ) ) Cite as 2020 VI Super 62U MEMORANDUM OPINION fill THIS MATTER is before the Court on the Motion To Dismiss First Amended Complaint, filed by Defendants University of the Virgin Islands, David Hall, 1 individually and in his official capacity as president of the University of the Virgin 1 Islands and Camille McKayle, Individually and in her official capacity as provost of the University of the Virgin Islands (collectively “UVI”) 1 For the reasons herein, UVI’s motion to dismiss will be granted in part and denied in part 1 The motion to dismiss was filed November 27, 2017 It is fully briefed Archibald V Univ of the V I et a1 Case No ST 16 CV 714 2020 VI Super 62U Memorandum Opinion I FACTS 112 The University of the Virgin Islands “is managed by a Board of Trustees and the President is designated as the Chief Executive Officer” (First Am Compl 11 5, May 4 2017) The President of UVI is Dr David Hall Id 11 6 UVI s Provost is Dr Camille McKayle Id 11 7 113 According to allegations in the first amended complaint, on December 7, 2009, 1 Archibald became employed with the University of the Virgin Islands as a “non 1 tenured track Assistant Professor in the College of Science and Mathematics ” Id 11 8 In 2011, Archibald established, and became director of, the Caribbean Green Technology Center ( CGTC ) at UVI See id 1111 9 11 In August 2014 Archibald signed a two year contract “with an appointment to a full time tenured track position of Assistant Professor and [a] re appoint[ment] as Director of the CGTC of the University Id 11 14 [T]he 2014 contract between [Archibald] and [UVI] provided that in accordance with the appointment to a ‘fulltime tenured track position’ [Archibald] will be entitled to a tenure review in September 2016 ” Id 11 15 114 In May 2015, “a UVI female student filed an alleged sexual harassment complaint with the University against [Archibald] ”2 Id 11 17 According to Archibald, he was not “provided with [a] complete copy of the student[‘s] specific charges 2 Archibald claims that UVI agents or officers “conspir[ed] to initiate the termination of [Archibald] $13810 damage his reputation’ by encouraging the student to file the complaint See (First Am Compl 1 1 Archibald V Univ of the V I et al Case No ST 16 CV 714 2020 VI Super 62U Memorandum Opinion until the final appeal proceedings before the Board of Trustees ” Id 1] 19 UVI launched “a Title IX investigation of the sexual harassment charge-L] with the Director of Student Affairs serving as the investigator ”3 Id 1] 20 The Director of Student Affairs reports to McKayle, the Provost Id The Director of Student Affairs found Archibald “guilty of sexual harassment” and “recommended that [Archibald] be suspended Id 1] 23 1]5 In September 2015, “[UVI]’s Office of Internal Auditor commenced an investigation of [Archibald]” after the Director of Student Affairs requested that the office investigate him for “allegations of mismanagement and alleged mishandling of [UVI] funds in the [CGTC] Accounts ” Id 1] 26 During the investigation, the internal auditor seized financial documents, e g, expense records, that were in Archibald’s office See id 1]1] 27 28 Archibald states that he “was unable to access the [expense] records to refute the findings of the audit/investigative report ” Id 1] 28 1]6 On “December 14, 2015, based on a finding of a violation of [UVI]’s sexual harassment policy and mismanagement of [UVI] funds,” McKayle, as provost, recommended to President Hall that Archibald be “remove [d] from Directorship of CGTC and den[ied] a new [teaching] contract ” Id 1] 29 On January 7, 2016, Archibald “directed a formal notice of appeal to Provost McKayle ” Id 1] 31 Provost McKaer “directed [Archibald]’s appeal to the Faculty Grievance Committee 3 Archibald claims “[t]hat the Title IX investigation was conducted in an unfair and prejudicial manner for reasons including[,] [that] policy standards were established antecedent to the alleged incident[,] [Archibald] was never given an opportunity to review the specific charges against him[ and] the investigator had no direct evidence[,] [but] used statements from other persons who never filed complaints[] to conclude that [Archibald] was guilty ” Id 1] 21 ] Archibald v Univ of the V I et a1 1 Case No ST 16 CV 714 2020 VI Super 62U ] Memorandum Opinion ‘ pursuant to Section 9 of the Faculty Policy Manual ” Id 1] 30 “[T]he Faculty ] Grievance Committee conducted a ‘hear1ng’” and [ ]confirm [ed ] the findings and final recommendation of [Provost] McKayle ”4 Id 1]1] 33 34 Archibald “appealed the decision” to President Hall Id 1] 35 President Hall “adopted the findings of Provost [McKayle] and [the] Faculty[ Grievance] Committee and decided to terminate [Archibald] ” Id 1] 36 Archibald “appealed the decision to the Board of Trustees”, and the Board of Trustees affirmed President Hall’s decision Id 1]1] 38 39 1]7 Archibald claims that he “was entitled to a process pertinent to a terminated faculty [member], pursuant to [s]ecti0n 8 [,not section 9,] of the Faculty Policy Manual ” Id 1] 32 Section 8 of the UVI Faculty Policy Manual states, in relevant part, that “[t]erminati0n of employment of faculty with tenure or if a pre tenure or Visiting faculty before the end of the specific term may be affected by the institution only for adequate cause If termination takes the form of a dismissal, it will be pursuant to the procedure specified in subsection b below ”Id 1] 46 Section 8 provides for procedural rights that include “[a] statement of charges”, a hearing and “the right to confront and cross examine all witnesses” Id 1] 46 1]8 Section 9 of the UVI Faculty Policy Manual is titled ‘Grievance and Complaint Procedures” and sets out the procedure for faculty members to file grievances or complaints against UVI or someone associated With UVI 5 See id 1] 47 Section 9 also 4 Archibald states that during the Faculty Grievance Committee “hearing” that he “was denied the right to confront the witnesses against him; denied the right to cross examine witnesses; and denied notice of the specific charges made against him ’ Id 1] 33 a A section 9 gr1evance can be filed against UVI “or someone acting on behalf of [UVI] ” See id at 1] 47 A section 9 complaint can be filed against UVI “or someone associated with [UVI] ’ See id Archibald V Univ of the V I et a1 Case No ST 16 CV 714 2020 VI Super 62U Memorandum Opinion provides for the formation of a hearing panel by the Faculty Grievance Committee See Ld “The Faculty Grievance Committee is charged with insur[ing] that all appropriate documentation is made available to all parties of the hearing and ca11[ing] any witnesses requested by the panel in addition to those requested by the parties ”Id Additionally, “[t]he Faculty Grievance Committee [must] ensure that the hearing panel’s report is duly forwarded to the grievant, complainant, respondent and to the Provost ” Id 1]9 Archibald’s first amended complaint is 13 pages long without any identifying separation of counts or claims But, Archibald claims that he was wrongfully terminated and “[t]hat th [is] termination constitutes a breach of contract by [UVI], President [Hall] and Provost [McKayle] and violate[s] [his] constitutional right to due process ” Id 1]1] 43 44 Archibald also claims that the Faculty Policy Manual was violated See id 1] 43 Specifically, Archibald claims that Provost McKayle initiated a process under the wrong section of the Faculty Policy Manual that led to Archibalds termination See Ld 1]1] 30 32 Additionally Archibald alleges [t]hat President[] [Hall’s] decision was wrongful because it was made without [affording] [Archibald] real due process” Id at 1] 37 Moreover, Archibald alleges “[t]hat the Board of Trustee’s decision was issued without any statement [that Archibald] could [use to] determine the basis for the decision ”Id 1] 40 Further, Archibald alleges that Hall and McKayle’s decisions adversely affected his professional reputation and had a negative impact on his “ability to gain employment” See id at 1]1] 52 53 Finally, Archibald claims he is entitled to compensation for unused annual leave See ld 1] 51 Archibald v Univ of the V I et a1 Case No ST 16 CV 714 2020 VI Super 62U Memorandum Opinion 1110 UVI moves to dismiss the first amended complaint on the grounds that the complaint fails to satisfy the notice requirements under V I R CIV P 8(a)(2) because the complaint “does not provide any factual basis as to what actions constitute actionable wrongs by President Hall, either as University President or in his individual capacity, or by Provost McKayle, as Provost or in her individual capacity ” See (Mem L Supp Mot Dismiss First Am Compl 1 2 Nov 21 2017) [hereinafter Mot Dismiss)] UVI attached 3 exhibits to its motion See (Mot Dismiss Ex 1 3) II LEGAL STANDARD fill In deciding whether UVI’s motion to dismiss should be granted or denied, the Court considers relevant portions of Virgin Islands Rules of Civil Procedure, below, 1 and case law V I R CIV P 8(a)(2) (a) Claim for Relief Except as otherwise provided in these Rules, a pleading that states a claim for relief must contain (2) a short and plain statement of the claim showing that the pleader is entitled to relief because this is a notice pleading Jurisdlction and the pleadlng shall be set forth in separate numbered paragraphs as provided in Rule 10(b), with separate designation of counts and defenses for each claim identified in the pleading Archibald V Univ of the V I et al Case No ST 16 CV 714 2020 VI Super 62U Memorandum Opinion V I R CIV P 12(b)(6) (b) How to Present Defenses Every 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 V I R CIV P 12(d) (d) Result of Presenting Matters Outside the Pleadings If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56 All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion III DISCUSSION 1112 Virgin Islands Rules of Civil Procedure 12(b)(6) states 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 [f] ailure to state a claim upon which relief can be granted” VI R CIV P 12(b)(6) The Virgin Islands is a notice pleading Jurisdiction, and a plaintiff must meet the notice pleading standard in VI R CIV P 8(a)(2) to overcome a 12(b)(6) motion See VI R Civ P 8(a)(2)' Mills Williams v Mapp 67 VI 574 585 86 (VI 2017) (explaining that VI R CIV P 8(a)(2) eliminated the plausibility standard) BrathwaLte v H D VI Archibald v Univ of the V I et a1 Case No ST 16 CV 714 2020 VI Super 62U Memorandum Opinion Page 8 of 1s Holding Co Case No ST 16 CV 764 2017 VI LEXIS 76 at *2 *3 (VI Super Ct May 24, 2017) (unpublished) (same) Under a notice pleading regime a plaintiff must provide “a short and plain statement of the claim showing that the pleader is entitled to relief See VI R CIV P 8(a)(2) Additionally the pleading shall be set forth in separate numbered paragraphs as provided in Rule 10(b), with separate designation of counts and defenses for each claim identified in the pleading ” Id 1113 The Reporters Note for V1 R CIV P 8 explains that the notice pleading 1 standard is designed to “apply[] an approach that declines to enter dismissals of cases ‘ based on failure to allege specific facts which, if established, plausibly entitle the pleader to relief MLlls Williams 67 VI at 585 (quoting VI R CIV P 8 Reporter s Note (emphasis added)) (citing Brathwalte 2017 VI LEXIS 76 at *3) A complaint has been sufficiently stated when “it ‘adequately alleges facts that put an accused party on notice of claims brought against it’” and “advise [s] the responding party of the transaction or occurrence on which the claim is based” See 0xley v Sugar Bay Club & Resort Corp Civil No ST 18 CV 96 2018 VI LEXIS 81 at *6 *10 (VI Super Ct May 14 2018) (unpublished) (quoting MlllS Williams 67 VI at 585) Such facts “must be Viewed in the light most favorable to the plaintiff” Greaux U Frett, 2019 VI Super 77U 11 4 (quoting Adams 0 North West Co 63 VI 427 438 (VI Super Ct Oct 6 2015)) A Summary Judgment 1114 Before the Court reviews the substance of UVI’S motion to dismiss, the Court must determine Whether to consider the documents attached to the motion, and Archibald v Univ of the V I et a1 Case No ST 16 CV 714 2020 VI Super 62U Memorandum Opinion 1 therefore, Whether to convert UVI’s 12(b)(6) motion into a motion for summary ‘ Judgment Archibald argues that “[t]o the extent [UVI] ha[s] submitted and relied on evidence outside of the pleadings by submitting several exhibits which were not before the Court, [UVI’s motion to dismiss] must be construed as a motion for summary judgment” (Mem Law Supp Pl ’s Opp’n Defs’ Mot Dismiss First Am Compl 9 Dec 28 2017) [hereinafter Opp n Mot Dismiss] 1H5 The Virgin Islands Rules of Civil Procedure 12(d) states, in relevant part, “[i]f, on a motion under Rule 12(b)(6) , matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary Judgement under Rule 56” VI R CIV P 12(d) In this instance, the Court has not considered UVI’S exhibits or statements regarding the exhibits See, e g , (Mot Dismiss 11, 13 15) Therefore, the Court need not convert UVI’s motion to dismiss 1 into a motion for summary judgment, and the Court declines to do so B Counts and Elements 1H6 UVI argues that Archibald has “not specifically identified any causes of action that grounds his claims for relief against President Hall and Provost McKayle in their official capacities” Id at 6 Additionally, UVI states that “[Archibald]’s complaint does not set forth any counts for relief, nor does it identify any elements of a cause of action [and] [UVI] should not be required to speculate as to what [Archibald] is intending to bring against them as a claim for relief” Id Archibald argues that he has “sufficiently pled allegations that are enough to raise a right to relief [and] give Archibald V Univ of the V I et a1 Case No ST 16 CV 714 2020 VI Super 62U Memorandum Opinion [UVI] fair notice of what the claims are and the grounds upon which [the claims] rest ” (Opp’n Mot Dismiss 2) UVI argues Archibald “does not set forth any counts for relief ’ See (Mot Dismiss 6) The Court agrees that Archibald has not designated or distinguished any individual claim Instead, he alleges multiple causes of action that are coupled together over 13 pages and 53 paragraphs, and poorly organized 6 See (Mot Dismiss 6) (First Am Compl 1]1] 37 43 44) Archibald states that his termination “constitutes a breach of contract by [UVI], President[ Hall] and Provost[ McKayle] and violate[s] [his] constitutional right to due process ” (First Am Compl 1] 44) Archibald states in another paragraph that his due process rights were violated regarding “the contract between [him] and [UVI], the Faculty Policy Manual and the [U S Constitution] ” See Ld 1] 37; see also 1d 1] 43 1]17 VI R CIV P 8(a)(2) only requires plaintiffs to give defendants reasonable notice of the claims A complaint with no separate designation of counts is not 1 necessarily detrimental to a plaintiffs claims See Leach 1) Cruise Sth Excursions, Inc 2019 VI Super 110U 1]1] 33 35 But a complaint that fails to even mention the terms necessary to describe a claim fails to give notice See Brunt v Alger, 2019 VI Super 90, 1] 9; see also Leach, 1] 33 1]18 Fairness dictates that “a plaintiff must allege separate claims separately in order to permit a defendant to intelligently respond to the complaint, rais[e] the i ] 6 At best Archibald makes scattered claims of violation of due process, wrongful termination and breach of employment contract Archibald v Univ of the V I et a1 Case No ST 16 CV 714 2020 VI Super 62U Memorandum Opinion appropriate defenses and adequately defend[] against each claim ”7 Id ][ 8 (citing Tutein v Parry 48 VI 101 108 (V I Super Ct 2006)) When explaining the notice pleading standard, Bram quotes that notice pleading “merely require[s] that the plaintiff give notice to the defendant of the theory behind claims alleged and the basic facts supporting those allegations ” Brunt, 1] 8 (citation omitted) (quoting Great S Co v Allard 198 B R 715 718 (Bankr N D Ill 1996)) accord 0xley 2018 VI LEXIS 81 at *10 (quoting Great S C0 198 B R at 718) 1]19 In this case, the Court finds that Archibald’s first amended complaint sufficiently states claims for breach of contract and due process violation See (First Am Compl 1H] 37 43 44) But cf Brunt 1] 9 Leach 1] 33 Additionally the Court finds that the claims are stated in a separate manner See Brunt, 1] 8 (citation omitted) (First Am Compl 1H] 37 43 44) Paragraph forty four of Archibald s complaint clearly articulates two separate claims See (First Am Compl 1] 44) (“the termination of [Archibald] constitutes a breach of contract [,] and violated [Archibald]’s constitutional right to due process”) Paragraphs thirty seven and forty three of Archibald’s complaint also establish the claim for Violation of due process See rd 1H] 37 43 8 7 The Bruni court analyzed whether a claim for negligence and gross negligence could both arise under a count for negligence See Bram, 1] 9 8 Paragraph 37 reads “That the President’s decision is wrongful because it was made without giving [Archibald] real due process, in accordance with the contract between [Archibald] and the University, the Faculty Policy Manual and the Constitution of the United States, as made applicable by the Revised Organic Act of 1954 Archibald V Univ of the V I et al Case No ST 16 CV 714 2020 VI Super 62U Memorandum Opinion [20 A complaint that does not delineate separate counts does not automatically make the complaint deficient See Leach 1H] 33 35 But see Oxley 2018 VI LEXIS 81, at *10 (“a complaint should identify [a] claim, reciting its elements, to enable the defendant to respond intelligently and to enable the [c]ourt to determine on a [12(b)(6) motion] whether the claim is adequately pled”) As Brunt alludes, if a claim is unsettled law, then briefing can be ordered to establish the claim’s elements 9 ] ] See Bruni 1] 8 (citing Oxley 2018 V I LEXIS 81 at *10 *11) (the court must be able to identify issues of common law requiring a Banks analysis to order the appropriate briefing”) Similarly, a defendant can ask for a more definitive statement if the lack of elements in a complaint hinders the defendant’s ability to fully respond Moreover, the Court can sua sponte order the plaintiff to amend its complaint and include elements, if necessary See Thomas 0 Kragel, Civil No ST 15 CV 573, 2018 V I LEXIS 132 at *7 *8 (V I Super Ct May 1 2018) (unpublished) ( the [c]ourt sua sponte directs [plaintiff] to file a [s]econd [a]mended [c]omplaint that complies with V I R CIV P 8(a)(2) and V I R CIV P 10(b) stating each claim that is founded on a separate transaction or occurrence, in a separate count”) The Court finds the latter Paragraph 43 reads ‘That Hall and McKayle terminated [Archibald] wrongfully and without due process as prescribed in the Faculty Policy Manual, which is incorporated into the contract between [Archibald] and the University ” 9 The Court notes that although Bruni cites to Oxley, Bruni chose not to include the requirement to recite elements, but instead just stated that a claim must be identifiable See Bruni, 1] 8 Accordingly, this Court finds that Bruni did not agree that a recitation of elements was necessary Compare Bruni, 1] 8 (citation omitted) (a claim “must be able to identify issues of common law’) with Oxley, 2018 V I LEXIS 81, at *10 *11 (“a complaint should recite the elements of a common law claim”) Archibald V Univ of the V I et a] Case No ST 16 CV 714 2020 VI Super 62U Memorandum Opinion is the best solution Therefore, the Court will not grant the motion to dismiss, but instead will order Archibald to amend his complaint to separate his claims C Individual and Official Capacity $21 UVI argues that Archibald did not “identify any actionable conduct on the part of Hall and McKayle in their individual capacities” or their official capacities See (Mot Dismiss 4, 6) However, Archibald argues that he has adequately pled claims against Hall and McKayle in both their individual capacities, by stating that “officers or agents of [UVI] “conspir[ed] to initiate the termination of the [p]1aintiff and to damage his reputation” by encouraging the student “to file the sexual harassment complaint,” and in their official capacities See (First Am Compl fl18); (Opp’n Mot Dismiss 5) Additionally, Archibald argues that his complaint denotes when Archibald is discussing Hall or McKayle in their individual or official capacities and that Hall and McKayle “made decisions in their individual capacity to breach [Archibald] s contract See (First Am Compl “I 24 25) (Opp n Mot Dismiss 6 7) 1122 V I R CIV P 8(a) (2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief” In Schrader Cooke U Govt of the VI , 2019 VI Super 167, the V I Superior Court stated that “the facts as alleged involve a [d]efendant or proposed [d]efendant taking action in their capacity as an agent of [plaintiff]’s employer, the Government of the Virgin Islands Indeed, it is impossible for anyone except an agent of the government to effect a transfer, put an employee on leave, deny her pay, and fire her” Schrader Cooke, 11 38 (quoting Mills WLllLams v Archibald v Univ of the V I et a1 Case No ST 16 CV 714 2020 VI Super 62U Memorandum Opinion Mapp Case No ST 15 CV 574 2016 VI LEXIS 238 at *22 (VI Super Ct Aug 30 2016) (unpublished) overruled on other grounds by MLlls WLllLams 67 VI 574) The VI Superior Court concluded that “the facts as pleaded do not plausibly show any interference from [d]efendants acting outside the scope of their employment” Id fl 40 (quoting Mills thliams 2016 V I LEXIS 238 at *22) 1123 In the present case, Archibald claims that Hall and McKayle infringed on his due process rights, and breached the contract between Archibald and UVI, by not following the proper procedure in the Faculty Policy Manual, e g , “denied right to confront [and] cross examine Witnesses[,] and denied notice of the specific charges made against him” See (First Am Compl 1] 33); (Opp’n Mot Dismiss 8) However, all allegations refer to actions conducted in Hall and McKayle’s official capacities; actions that could only be performed by agents of UVI, e g , Provost McKayle “accepted the findings of the investigator [and] recommended to [President Hall] that [Arhibald] be removed from” his position as Director of CGTC and terminated from his teaching position “at the end of his Contract term” See Schrader Cooke, fl38 (quoting MlllS WLllLams 2016 V I LEXIS 238 at *22)‘ (First Am Compl fl24) Consequently, UVI’s motion to dismiss claims against Hall and McKayle in their individual capacities will be granted, but UVI’s motion to dismiss claims against Hall and McKayle in their official capacities will be denied Archibald V Univ of the V I et a1 Case No ST 16 CV 714 2020 VI Super 62U Memorandum Opinion D Due Process Violation and Breach of Contract fil24 UVI asserts that “[Archibald] makes no mention of precisely what conduct on the part of the University President and Provost grounds the due process claims” and that the “First Amended Complaint does not contain sufficient factual content from which any reasonable inference can be made that President Hall and Provost McKayle in their official capacities breached any contracts with [Archibald], or violated his due process rights ”10 (Mot Dismiss 8 9) The Court disagrees 1125 Archibald alleges that UVI terminated him without using the correct procedure laid out in Archibald’s contract with UVI See (First Am Compl 1] 25, 32); (Opp’n Mot Dismiss 8) Specifically, Archibald alleges that UVI used section 9 of the Faculty Policy Manual, which is for grievances and complaints that faculty members initiate, instead of section 8 of the manual, which lays out the procedure for terminating, among other things, a pre tenure faculty member See (First Am Compl 1m 32, 46 47) In his first amended complaint, Archibald includes excerpts from section 8 and section 9 of the Faculty Policy Manual to exemplify this argument See id 1111 46 47 Finally Archibald clearly alleges that the breach of contract and due process Violation stems from the procedure used to terminate him See id 1H] 42 44 The Court finds that Archibald has adequately allege[d] facts that put [UVI] on 10 The Court notes that Archibald s complaint possibly establishes a wrongful termination claim See (First Am Compl 1] 43) However, the issue is only mentioned once in the complaint and is not addressed by UVI’s motion to dismiss or Archibald’s opposition to motion to dismiss; therefore, the Court declines to comment on the matter See id Archibald v Univ of the V I et a1 Case No ST 16 CV 714 2020 VI Super 62U Memorandum Opinion notice of claims brought against it” and “advise[d] [UVI] of the transaction or occurrence on which the claim is based ” See Oxley, 2018 V I LEXIS 81, at *6, *10 1126 UVI argues that Archibald received due process through another policy and refutes Archibald’s argument that he did not receive a copy of the specific charges against him See (Mot Dismiss 10 17) However, these are merit arguments that the Court need not consider on a motion to dismiss See Oxley, 2018 V I LEXIS 81, at *3 (citing Hans Lolltk Corp v Govt of the VI 17 VI 220 230 (VI Super Ct Mar 6 1981)) (“In evaluating a motion to dismiss for failure to state a claim, the [c]ourt does not address the merits of the claim but merely tests whether the claim has been adequately stated in the pleading”) E Substantive v Procedural Due Process Rights 1127 UVI argues that Archibald did not state whether his due process violation claim was procedural or substantive See (Mot Dismiss 7) While that is true, the Court finds that Archibald alleges facts that indicate a procedural due process violation See e g , (First Am Comp] 111 32, 33); (Opp’n Mot Dismiss 8) Further, the VI Supreme Court has stated that “[t]here is no constitutional guarantee of an established right to continued employment” and, similarly, that “there is no 1 substantive due process interest in continued employment ” See Fleming v Cruz, 62 VI 702 713 (VI 2015) overruled on other grounds by Mtlls thltams 67 VI 574 1 (first citing McKtnney v Pate 20 F 3d 1550 1560 (11th Cir 1994) and then citing Wrench Transp Sys Inc 0 Bradley 340 Fed Appx 812 815 (3d Cir 2009)) Archibald V Univ of the V I et al Case No ST 16 CV 714 2020 VI Super 62U Memorandum Opinion Consequently, the Court finds that the basis of Archibald’s claim IS procedural and that the Court need not address Whether a substantive due process violation was adequately pled IV CONCLUSION 1128 The Court finds that Archibald’s complaint fails to delineate separate counts and claims elements, but that the deficiency is not sufficient to grant UVI’s motion to dismiss The complaint also fails to allege conduct by Hall or McKayle that could establish liability in their individual capacities Therefore, the claims against Hall and McKayle in their individual capacities will be dismissed Archibald does allege sufficient facts to establish a claim for breach of contract and due process Violation Therefore, the motion to dismiss on those grounds will be denied Lastly, the procedural due process claim is sufficiently pled that it will survive the motion to dismiss However, the Court will direct Archibald to amend his complaint for the limited purpose of distinguishing and designating separate counts i 1129 The Court denies Archibald’s request to convert the motion to dismiss into a motion for summary judgment as the Court did not consider the attachments to UVI’s motion Archibald V Univ of the V I et a1 Case No ST 16 CV 714 2020 VI Super 62U Memorandum Opinion An Order consistent with this Memorandum Opinion will immediately follow DATED May Z i 2020 M f a”ééL3/ Kathleen Mackay Judge of the Superior Court of the Virgin Islands ATTEST TAMA IQ RLES Cle of the Cou t / Y: LORI BO YS N Chief De Ify Clerk éil/ $wa 1 l l IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN ) WAYNE ARCHIBALD ) ) CASE NO ST 16 CV 714 Plaintiff ) ) ACTION FOR DAMAGES vs ) ) ) THE UNIVERSITY OF THE VIRGIN ISLANDS ) JURY TRIAL DEMANDED DAVID HALL PRESIDENT INDIVIDUALLY ) AND IN HIS OFFICIAL CAPACITY AS ) PRESIDENT OF THE UNIVERSITY OF THE ) VIRGIN ISLANDS CAMILLE MCKAYLE ) INDIVIDUALLY AND IN HER OFFICIAL ) CAPACITY AS PROVOST OF THE ) UNIVERSITY OF THE VIRGIN ISLANDS ) ) Defendants ) ) ORDER THIS MATTER is before the Court on the Defendants’ Motion To Dismiss For the reasons set forth in the Memorandum Opinion entered on this day, it is hereby ORDERED that the portion of the motion seeking dismissal of the claims against Defendant David Hall in his personal capacity and against Defendant Camille McKayle in her personal capacity is GRANTED; ORDERED that the remaining portions of the motion is DENIED; ORDERED that the claims against Defendant David Hall and Defendant Camille McKayle in their personal capacities are DISMISSED WITH PREJUDICE' Archibald v Univ of the V I et al Case No ST 16 CV 714 Order ORDERED that Plaintiff shall by no later than June 5, 2020 file an amended complaint distinguishing and designating separate counts; and it is further ORDERED that copies of this Order and the Memorandum Opinion be directed to counsel of record DATED May H 2020 W figffi’ ’4 Kathleen Mackay Judge of the Superior Court of the Virgin Islands ATTEST TAMA A S Cler of the)C;urt B . x" LORI BOY ES YS Chief Deputy Cl rk Kg? /w i l