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FOR PUBLICATION IN THE SUPERIOR COURT THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN TILFORD LETTSOME, ) ) Plaintiff, ) CASE NO. ST-09-CV-11 ) v. ) ) VI SEA TRANS d/b/a ST. CROIX FAST FERRY, VIRGIN ) ISLANDS PORT AUTHORITY, BILL JOHN-BAPTISTE, and ) DESHAUN SMITH, ) ) Defendants. ) ) Pedro K. Williams, Esq., Counsel for Plaintiff Marjorie E. Smith,pro se, for Defendant, V.I. Sea Trans Douglas L. Capdeville, Esq., Counsel for Defendant VI Port Authority Deshaun Smith,pro se MEMORANDUM OPINION This matter comes before the Court on Plaintiffs May 20, 2009, Renewed and Revised Motion for Entry ofDefault seeking entry ofdefault against Defendant VI Sea Trans d/b/a St. Croix Fast Ferry ("Sea Trans"), for its alleged failure"to properly and legally plead or otherwise defend in response to the complaint." Defendant Sea Trans has not responded to Plaintiffs Motion. The record reflects that the Complaintwas filed on January 12,2009, and that on February 27,2009, the Court received an "Answer to Complaint" (the "Answer") purporting to be submitted on behalf of"Defendant VI SEA TRANS, PRO SE" and signed by "Marjorie E. Smith, PRO SE Lettsome v. VI Sea Trans, et al. Case No. ST-09-CV-11 Memorandum Opinion and Order, August 7, 2009 For Defendant, V.I. Sea Trans" ("Smith"). Nowhere in the Answer does Smith indicate that she is an attorney admitted to practice in this jurisdiction, nor does she reveal in what capacity she purports to act on behalf the Sea Trans. Plaintiff asserts that, "A corporation must be represented by legal counsel, not by a Pro Se litigant." Impliedly,Plaintiff arguesthat that because Smith is not an attorney her filing of apro se Answer is ineffective and, consequently, Sea Trans has not "properly and legally plead or otherwise defend[ed]" this action. Generally,corporations who are parties in civil litigationmust be representedby attorneys. InSimbraw, Inc., v. United States, 367 F.2d 373 (3rd Cir. 1966), the courtheld that a corporation seeking to litigateits rightsin a courtof law could not represent itselfthroughits presidentbut was requiredto employ an attorneyto appearon its behalf. In so ruling, the Third Circuit relied primarily on itsinterpretation of Osborn v. President, etc., United States Bank, 22 U.S. 738 (1824) but alsomentioned thatin Flora Construction Co. v. Fireman's Fund Insurance Co., 307F.2d413, 414 (10 Cir. 1962), the courthaddeclared, "The ruleis well established that a corporation can appear in a court ofrecord only by an attorney at law." Simbraw also cites MacNeil v. Hearst Corporation, 160 F.Supp. 157(D.Del. 1958),in which the court opined, "The authorities in the Federal Courts which have determined thequestion areuniform inholding thata corporation can donoactexcept through its agents andthatsuchagents representing the corporation in Court must beattorneys atlaw who have been admitted topractice, are officers oftheCourt and subject toits control." Thus, that issue appears to be settled, at least in the federal courts. One the other hand, it is worth noting that in the Small Claims Division ofthis Court corporations must appear through a representative who is not anattorney. See4 V.I.C. 112(d) ("Neither party mayberepresented bycounsel and theparties shall in allcases appear inperson Lettsome v. VI Sea Trans, et al. Case No. ST-09-CV-11 Memorandum Opinion and Order, August 7, 2009 except for corporate parties, associations, and partnerships, which may appear by a personal representative.") Surprisingly, a judge ofthis Court once interpreted that statute to mean that, "[N]o parties other than corporations, etc., may appear by counsel in the Small Claims Division of the Court." Deliver It, Inc., v. Mitchell, 28 V.I. 25 (T.Ct. 1992). That view was soundly rejected, however, in a subsequent decision ofthe Small Claims Division, Thomasv. St. Croix, 41 V.I. 3 (T.Ct. 1995): A simple reading ofthis unambiguous statute [4 V.I.C. 112(d)] reveals three points: (1) no party may be represented by counsel in the Small Claims Division.. .Nothing in the statute even remotely begins to suggest that corporations may be represented by counsel... SMC also cites an opinion ofthis Court [Mitchell] in support ofits position that corporations may be represented by counsel.. .The language in Mitchell mentioned above was not the holding ofthe case and in fact was dicta listed under the heading "Other Noteworthy Observations". Mitchell, 28 V.I. at 28. Nevertheless, to the extent that Mitchell suggests that corporations may be represented by counsel, this Court respectfully disagrees with it. The statute clearly "prohibits litigants from being representedby counsel. Associations,partnerships and corporation may appear by a 'personal representative'." Virgin Islands Yacht Harbor, Inc., v. Restaurant Management, Inc., Memo Opinion, Pg. 2, No. 1992/78 (V.I.D.C. App. Div. 2/24/93). Further, the District Court has upheld the Small Claims Statute against a challenge that it denies litigants the right to counsel. Carr v. Pena, 432 F.Supp. 828, 833 (D.C.V.I. App. Div. 1977). The Court went on to explain the reasoning behind this special provision: The purpose behind the enactment ofthe Small Claims Statute was to permit individuals with small claims access to the courts in a simple inexpensive manner and without the need to retain counsel. 4 V.I.C. Ill; Schroederv. Hackett, 13 V.I. 242, 248 (Terr. Ct. STX. 1977). This purpose would be thwarted iflitigants were permitted to be represented by counsel even ifonly to file, and/or argue, motions for transfer. Unrepresented parties would have to argue their oppositions to transfer withoutthe benefitof counsel and should not have to retain counselsimplyto opposesuchmotions. In short,counsels[sic] are not permittedto representlitigants at all in Small Claims Court. The purpose ofthe provision barring attorneys from appearing in small claims was also persuasively expressedby Senior Sitting Judge Almeric L. Christian in Loeckler, et al, v. Arevalo, et al., CaseNo. ST-92-SC-25, Memorandum and Order (T.Ct. Feb. , 1992). Lettsome v. VI Sea Trans, et al. Case No. ST-09-CV-11 Memorandum Opinion and Order, August 7, 2009 The District Court ofthe Virgin Islands is in accord. See Ryan's Restaurant, Inc. v. Lewis, 949 F.Supp. 380, n. 4 (D.V.I. 1996): We also observe that appellant's motion was filed in the Small Claims Division by counsel. "Neither party may be represented by counsel and parties shall in all cases appear in person except for corporate parties, associations, and partnerships which may appear by a personal representative." [sic] V.I. CODE ANN. tit 4, § 112(d)... We reject any contrary interpretation of Carr v. Pena, 432 F. Supp. 828 (D.V.I. 1977) and Deliver It v. Mitchell because this interpretation allows quick and inexpensive resolution without interfering with any constitutional rights; legal counsel may be utilized should the case be transferred to the regular Civil Division or appealed, (emphasis added) Significantly for purposes ofthis case, in performing this analysis Ryan's also indicated in passing that corporations must be represented by attorneys in the Civil Division ofthis Court: We do not interpret section 112 to mean that corporate parties may be represented by counsel in the Small Claims Division. However, the usual rule that a corporation may not appear pro se may be relaxed in accordance with the purpose ofRule 64 to allow a corporation to be represented in the Small Claims Division by an officer or shareholder, even if that officer or shareholder is an attorney. Id. (emphasis added) Consequently,this Court interprets Ryan'sto stand for the proposition that the "general rule", as statedin Simbraw andMacNeil, that corporations who are parties in civil litigationmust be represented by attorneys applies to suits in the Superior Court other than those fallingwithinthe jurisdiction ofthe Small Claims Division. The Court's inquiry does not end there, however, for we must next determine the effect of the "Answer to Complaint" filed by Smith on behalfof Sea Trans. In Thomas the Court stated that the documents filedby counsel in that small claims case were "null and void". And, in Mitchell, the Court described the answerthe attorney submittedon behalf ofthe corporationin the Small Claims Division as "illegally filed". Lettsome v. VI Sea Trans, et al. Case No. ST-09-CV-11 Memorandum Opinion and Order, August 7, 2009 Plaintiffurges that the Court adopt the view that Defendant's pleading is a nullity and that the entryof defaultagainstSea Trans is appropriate becauseit has not respondedto the Complaint. While the Court agrees with the former conclusion, it disagrees with the latter. Under Rule 47 ofthe Rules ofthe Superior Court, "When a party against whom affirmative reliefis sought has failed to appear, plead or otherwise defend as provided by law or these rules, or has failed to appearat the time fixedfor trial, the clerkshall enter his default." Similarly, Rule 55 of the Federal RulesofCivil Procedure permits the entryof defaultwhen the party,"has failedto plead or otherwise defend, and that failure is shown by affidavit ofotherwise..." As the term is generally used, a defendant "appears" in an action by making a written submission to the court. Lutwin v. City ofNew York, 106 F.R.D. 502, 504,n.l (S.D.N.Y. 1985), affd., 795 F.2d 1004 (2nd Cir. 1986). But, given that defaults are generally disfavored, some courts haveinterpreted thetermmorebroadly, holding thatinformal acts likeletters or telephone calls can constitute anappearance. Rogers v. HartfordLife andAce. Ins. Co., 167 F.3d 933, 936-37 (5th Cir. 1999) (appearance doesnot require the filing ofresponsive papers). Thereis a splitin the Circuits between these two approaches. New York v. Green, 420 F.3d 99, 105 (2nd Cir. 2005) ("prevailing view" is that formal appearance is not required where party has "otherwise indicated.. .a clear purpose to defend the suit."). In Richardson v. Richardson, 14 V.I. 292 (T.Ct. 1978),the plaintiffmoved for a default on thegrounds thatthedefendant, who hadnot filed a formal answer, had not appeared. However, the court held that a letter from thedefendant acknowledging receipt ofthesummons, disputing the allegations of the complaint, andindicating his interest in contesting the casegavesufficient notice to theplaintiffofhisintention to defend the action and constituted an"appearance" sufficient to justify denial on plaintiffs motion for default. In so ruling, the court reiterated that one ofthe basic Lettsome v. VI Sea Trans, et al. Case No. ST-09-CV-11 Memorandum Opinion and Order, August 7, 2009 philosophies underlying the Federal Rules of Civil Procedure is that a case should be decided on its merits and according to the dictates ofjustice. The court also indicated that, "when dealing with an answer drawn by a layman unskilled in the law", the court should look to the spirit ofFed.R.Civ.P. 8(f),suchthat, "technicaldeficienciesin the answerwill be treated lenientlyand the entire pleading will be scrutinized to determine if any legally cognizable claim can be found within it.. .A liberal construction ofthe pleadings is especially called for where they were prepared by a layman." [citing DeWitt v. Pail, 366 F.2d 682 (9th Cir. 1966)]. See also Caesar, etal, v. FirstbankPuerto Rico, 49 V.I. 1041 (D.V.I.App. 2008) (appearance by implication may arise, even in absence of filing ofanswer, where communications between parties or counsel disclose clear intention to defend); Hutton v. Fischer, 359 F.2d 913 915 (3rd Cir. 1966) [telephone call from defendant's counsel to plaintiffs counsel agreeing to extension oftime was sufficient to constitute an appearance forpurpose of F.R.Civ.P. 55(b)(2)]; James v. Williams, 26 V.I. 14,22 (T.Ct. 1990) (telephone calls and informal letters between parties or their representatives constitute an appearanceonly where they occur after the complaint has been filed). Similar consideration has beenafforded even to plaintiffs whowere represented by attorneys. InEdwards v. Groner, 23 V.I. 265 (D.V.I. 1987), thewifeof theplaintiffs' attorney, whoworkedin his office, signed and filed the complaintand served it and the summonson the defendants. Thedefendants moved to dismiss thecomplaint and quash service, claiming thatthe complaint was a nullitybecause it was not signedby an attorneyin violationof F.R.Civ.P. 11. The Court denied the motions, indicating, "Abungled signature onapleading ismerely a technical defect andnot a substantive violation of Rule 11 warranting the voiding of the complaint... [citations omitted] And technical defects are notgrounds for dismissal." [citations omitted]. Lettsome v. VI Sea Trans, et al. Case No. ST-09-CV-11 Memorandum Opinion and Order, August 7,2009 A rigid adherence to formalities and technicalities must give way to the policies underlying the Federal Rules. Heyl & Patterson Intl., Inc. v F.D.RichHousing of Virgin Islands, Inc., 663 F.2d 419 (3rd Cir. 1981). "[T]he federal rules reject the approach that pleading isagame ofskill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose ofpleading is to facilitate a proper decision on the merits". Conley v. Gibson, 355 U.S. 41, 48 (1957). See also Community Realty Management, Inc., v. Blackman, 21 V.I. 195 (T.Ct. 1984) (court must take special care to construe the pleadings to do substantial justice in cases involving pro se litigants); Creque v. Roebuck, 16 V.I. 197 (T.Ct. 1979) (pro se litigants should be afforded substantial justice despite defects in pleadings). The Court views thepro se defendant's failure to have an attorney submit an answer on its behalfin a similar vein. Although the Answer to Complaint filed by Smith was not acceptable under the Rules ofthis Court, it purported to deny the bulk ofthe allegations ofthe Complaint and to raise several affirmative defenses on behalfof Sea Trans, thus indicating a clear intention on the part of Sea Trans to defend this lawsuit on the merits. Despite Defendant's technical noncompliance with the rules ofpleading, Court does not find that Sea Trans has failed to appear, plead or otherwise defend. Moreover, Plaintiffhas not demonstrated, or even suggested, that any prejudice that would befall him were Sea Trans permitted an opportunity to engage counsel to file a proper answer on its behalf and represent it in this litigation. This litigation is in an early stage, with the parties' Joint Scheduling Plan only having been approved by the Court on June 30, 2009. While some written discovery has been served, the deadline for completion of fact discovery has not passed, and it appears that no depositions have been taken. Nor have any dispositive motions been filed. The Court concludes that permitting Sea Trans to obtain counsel will not cause substantially delay. Lettsome v. VI Sea Trans, et al. Case No. ST-09-CV-11 Memorandum Opinion and Order, August 7, 2009 Plaintiffs Renewed and Revised Motion for Entry of Default will, therefore, be denied and Defendant Sea Trans will be given an opportunity to retain counsel and have that attorney submit an answer on its behalf. An appropriate order to that effect is issued simultaneously with this Memorandum Opinion. DATED: August 7, 2009. ATTEST: Venetia H. Velazquez, Esq. Clerk of the Court / / Rosatfe Griffith Court Clerk Supervisor KI/Q Id^j HON. MICHAEL C. DUNSTON JUDGE OF THE SUPERIOR COURT OF THE VIRGIN ISLANDS CERTIFIED A TRUE CCPY Venetia H. Velazquez, Esq. ^Clerkofthe Court^ . , By: XU^^.XJJ Court Clerk Lettsome v. VI Sea Trans, et al. Case No. ST-09-CV-11 Memorandum Opinion and Order, August 7,2009 IN THE SUPERIOR COURT THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN TILFORD LETTSOME, ) ) Plaintiff, ) CASE NO. ST-09-CV-11 ) v. ) ) VI SEA TRANS d/b/a ST. CROIX FAST FERRY, VIRGIN ) ISLANDS PORT AUTHORITY, BILL JOHN-BAPTISTE, and ) DESHAUN SMITH, ) ) Defendants. ) ) ORDER The Courthavingdetermined througha Memorandum Opinionofeven date that the entry ofdefault against DefendantVI Sea Trans d/b/a St. Croix Fast Ferry, it is hereby ORDERED that Plaintiffs Renewed and Revised Motion for Entry ofDefault against Defendant VI Sea Trans d/b/a St. Croix Fast Ferry is DENIED WITHOUT PREJUDICE; and it is ORDERED that Defendant VI Sea Trans d/b/a St. Croix Fast Ferry shall retain counsel to represent it in this case and have said counsel enter a formal appearance herein on or before September 4,2009, and file and serve an Answer on its behalfby said date; and it is ORDERED that the parties shall comply with the Joint Scheduling Plan previously approved herein, exceptthatthe deadline forthe completion of fact discovery is extended up to and including November 1,2009,andthe periodfor Plaintiffto disclose his expertwitness identityand reports is extended up to and including December 1, 2009; and it is further Lettsome v. VI Sea Trans, et al. Case No. ST-09-CV-11 Memorandum Opinion and Order, August 7, 2009 ORDERED, that a copy of this Order shall be personally served on Defendant VI Sea Trans d/b/a St. Croix FastFerry, c/oMarjorie E. Smith, 3400Veteran's Drive, St. Thomas, VI 00802, and copies shall be directed to counsel of record and Deshaun Smith,pro se. DATED: August 7, 2009. ATTEST: Venetia H. Velazquez, Esq. Clerk of the Court / / * Griffith - Court Clerk Supervisor O I [6 I61 1 HON. MICHAEL C. DUNSTON JUDGE OF THE SUPERIOR COURT OF THE VIRGIN ISLANDS CERTIFIED A TRUE COPY Date: Venetia H.Velazquez, Esq. Xlerk ofthe Court : ^OxJ^^l. By: Court Clerk