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SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN ) DEISY CLARKE ) ) Plaintiff, ) vs. ) CASE NO. ST-15-CV-645 ) PAN AMERICAN INVESTMENTS, INC. and ) CLEARVIEW LIMITED PARTNERSHIP, ) ) Defendants. ) ) MEMORANDUM OPINION Pending before the Court are Defendants Pan American Investments, Inc.’s and Clearview Limited Partnership’s Motions to Dismiss and Plaintiff Deisy Clarke’s Motion to Amend the Complaint. Because the Court will grant Plaintiff's Motion to Amend Complaint, the Court will hold Defendants’ Motions to Dismiss in abeyance and set a deadline by which Defendants may answer, move, or otherwise plead in response to the Amended Complaint. The Court will also direct the parties to conduct jurisdictional discovery regarding the Court’s personal jurisdiction over Defendants. FACTUAL & PROCEDURAL HISTORY This matter arises out of a Complaint filed on December 8, 2015, by Plaintiff Deisy Clarke against Defendants Pan American Investments, Inc. and Clearview Limited Partnership, wherein Plaintiff seeks damages for injuries she sustained in an accident on November 25, 2014.' On January 20, 2016, Pan American Investments, Inc. (“Pan American) and Clearview Limited Partnership (“Clearview”) each filed a Motion to Dismiss for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2) and failure to state a claim upon which relief can be granted under Fed. ' Compl. 6. Deisy Clarke vy. Pan American Investments, Inc., et. al Case No. ST-15-CV-645 Memorandum Opinion, July 5, 2016 R. Civ. P. 12(b)(6). On February 16, 2016, Plaintiff filed a timely Opposition to Defendants’ Motions to Dismiss and Motion to Amend Complaint. Defendants jointly filed a timely Reply on March 4, 2016.2 STANDARD Super. Ct. R. 8 provides: The court may amend any process or pleading for any omission or defect therein, or for any variance between the complaint and the evidence adduced at the trial. If a party is surprised as a result of such amendment, the court shall adjourn the hearing to some future day, upon such terms as it shall think proper. Fed. R. Civ. P. 15 offers further guidance on the amendment of pleadings? and advises that, once the twenty-one day statutory period for amendment has expired, a court “should freely give leave [to amend the pleadings] when justice so requires.”* “The decision whether to grant or deny [a motion to amend] rests within the court's discretion.” “When considering whether to exercise its discretion and give leave to amend, a court should be ‘guided by the policy that a party ought to be afforded the opportunity to test the claim 2 By Order entered on January 25, 2016, Plaintiff was directed to respond to each Defendant’s Motion to Dismiss by February 10, 2016, and Defendants were directed to reply by February 19, 2016. On February 10, 2016, Plaintiff's counsel moved for an extension of time to respond to Defendants’ Motions to Dismiss, which the Court granted and directed Plaintiff to respond to Defendants’ motions by February 22, 2016, and for Defendants to file a Reply by March 4, 2016. See February 16, 2016, Order. * Because “[SUPER. CT. R.] 8 has been regarded as ‘merely stat[ing] the general rule that a court can correct errors or defects in pleadings[.]’ Brooks v. Gov't of the V.I., 58 V.1. 417, 427 n.11 (V.1. 2013)... the Court looks to the standard set out in Rule 15 of the Federal Rules of Civil Procedure for guidance.” Pedro v. Ranger American of the Virgin Islands, Inc., 63 V.1. 511, 522 n. 1 (V.I. 2015) (Gomez, J., dissenting in part) (citing Santiago v. V.I. Housing Auth., 37 V.I. 256 (VI. 2012) (relying upon case law derived from Federal Rule of Civil Procedure 15 in determining if a complaint “related back” to a previous complaint under Superior Court Rule 8). The Court may do so when considering the standard for granting requests to amend pleadings because its application will not render Super. Ct. R. 8 “wholly superfluous” and Super. Ct. R. 8 does not address this standard. Santiago, 57 V.1. at 275 n.11 (citing Corraspe v. People, 53 V.1. 470, 482-83 (V.I. 2010)). As a result, FED. R. Civ. P. 15 is applicable to these proceedings by way of this precedent or alternatively as a last resort through SUPER. CT. R. 7. See Vanterpool v. Gov't of the Virgin Islands, 2015 V.I. Supreme LEXIS 23, *16 (V.I. 2015) (citing Sweeney v. Ombres, 60 V.1. 438, 442 (V.I. 2014)). 4 Fep. R. Civ. P. 15(a)(1)-(2). * Foman y. Davis, 371 U.S. 178, 182 (1962); See Daniel v. Government of Virgin Islands, 30 V.I. 134, 140 (D.V.L. 1994) and Choate v. Skinner, 19 V.I. 399 (Terr. Ct. 1983). Deisy Clarke v. Pan American Investments, Inc., ct. al Case No. ST-15-CV-645 Memorandum Opinion, July 5, 2016 on the merits.” The factors courts consider when evaluating a motion to amend include: delay in bringing the motion, prejudice to the opposing party, and futility of the amendment.’ A motion to amend “should be denied only where there exists evidence of ‘undue delay, bad faith or dilatory motive on the part of the movant . . . undue prejudice to the opposing party by virtue of allowance of the amendment, for] futility of amendment.””*® Nonetheless, “it is the preference of {the Superior] Court, in accordance with precedent from the Supreme Court of the Virgin Islands, that cases be resolved on their merits.” ANALYSIS In conjunction with her Opposition to Defendants’ Motions to Dismiss, Plaintiff seeks leave to amend the Complaint on the basis that “the wrong iteration of the [C]omplaint was signed and filed” and requests permission to substitute an Amended Complaint for the original Complaint, which Plaintiff's counsel asserts, without evidentiary support, inadvertently omitted certain averments.'° Defendants object, arguing “the original Complaint filed on November 3, 2015[,] must remain the operative pleading (subject to attack)” because Plaintiff may not amend as of right and the Court has not granted her leave to amend the Complaint."! ° Peters v. V.I. Water & Power Auth., 58 V.1. 49, 53 (V.L. Super. Ct. 2013) (citing Daniel, 30 V.I. at 140). 7 See Anthony v. Indep. Ins. Advisors, Inc., 56 V.1. 516, 535 (V.L. 2012) (citing Foman, 371 U.S. at 182); See also Peters, 58 V.I. at 53-54 (citing Newfound Management Corp. v. Sewer, 34 F. Supp. 2d 305, 317, 40 V.I. 335 (D.V.I. 1999)). ® Mathes v. Century Alumina Co., LLLP, 2009 U.S. Dist. LEXIS 63280, *4 (D.V.I. July 23, 2009) (quoting Foman, 371 U.S. at 182). 9 Adams v. North West Co., Inc., 2015 V.I. LEXIS 123, *18-19 (V.L Super. Ct. Oct. 6, 2015) (citing Joseph v. Bureau of Corrections, 54 V.I. 644, 650 (V.I. 2011) (“Both this Court and the United States Supreme Court have recognized that there is a strong preference for trial courts to decide doubtful cases on their merits rather than dismiss them for a failure to strictly follow purely procedural rules”)). 10 P}.'s Opp'n and Mot. to Amend Complaint, p. 2. '| Defs.’ Reply, p. 3. Deisy Clarke v. Pan American Investments, Inc., et. al Case No. ST-15-CV-645 Memorandum Opinion, July 5, 2016 Under Fed. R. Civ. P. 15(a)(1),'? a party may amend a pleading as a matter of right and without leave of Court so long as it is made within twenty-one days of service of the original pleading.'? In all other instances, “a party may only amend its pleading with the opposing party’s written consent or the [C]ourt’s leave”'* and, if neither is obtained, the amended pleading “is without legal effect.”'> Given that Plaintiff did not seek leave to amend within twenty-one (21) days of serving Defendants with the Summons and Complaint,'® Defendants are correct that Plaintiff can only amend the Complaint with leave of Court. Notwithstanding, “[i]t is axiomatic that, as a matter of law, trial judges have the inherent power ‘to control the disposition of the causes on [the court's] docket with economy of time and effort for itself, for counsel, and for litigants’ . . . [and therefore,] legally, the Superior Court c[an] consider motions in whichever order it cho[oses],” including ruling on Plaintiff's Motion to Amend the Complaint before considering Defendants’ Motions to Dismiss.!” Defendants do not challenge Plaintiffs Motion to Amend on the grounds that the circumstances demonstrate undue delay, bad faith, and dilatory motive by Plaintiff in bringing the motion, nor do Defendants explicitly argue that amendment is futile. Nevertheless, the Court notes that amendment is considered futile when the proposed amendment would otherwise not survive a motion to dismiss.'® Additionally, the Court also notes that, although not binding, this Court has applied Third Circuit precedent on several occasions, which mandates that “if a complaint is 2 supra n. 3. '3 See FED. R. Civ. P. 15(a)(1)(A)-(B). 'S Fep. R. Civ. P. 15(a)(2). 'S 6 Wright, Miller, Kane, FEDERAL PRACTICE AND PROCEDURE § 1484, 685 (2010). '© The record indicates that Pan American was served on January 19, 2016, and that Clearview was served on December 31, 2015. Defendants have not challenged the sufficiency of service of process. "7 Pedro, 2015 V.L Supreme LEXIS 19, at *23-27 (Gomez, J., dissenting in part) (citing United States v. Colomb, 419 F.3d 292, 299 (Sth Cir. 2005)). '8 Peters, 58 V.I. at 54 (citing Choate, 19 V.I. at 407). Deisy Clarke v. Pan American Investments, Inc., et. al Case No. ST-15-CV-645 Memorandum Opinion, July 5, 2016 subject to a Rule 12(b)(6) dismissal a ... court must permit a curative amendment unless such an amendment would be inequitable or futile . . . [and] must provide the plaintiff with this opportunity even if the plaintiff does not seek leave to amend.”!? Here, Plaintiff requests leave to amend the Complaint for the first time in the Motion to Amend the Complaint, which was filed just over two (2) months after the original Complaint.”° This matter is still in the early stages of litigation, which mitigates the potential prejudicial effect of the amendment on Defendants, and the circumstances do not indicate bad faith or dilatory motive by Plaintiff in seeking to amend the Complaint. However, at this time, it remains uncertain whether amendment would be futile. With respect to Defendants’ challenges to personal jurisdiction under Fed. R. Civ. P. 12(b)(2),?! it is unclear whether Defendants challenge personal jurisdiction solely on the basis that the factual allegations contained in the Complaint are insufficient to demonstrate that the Court has personal jurisdiction over Defendants or whether Defendants also dispute the existence of the jurisdictional facts. As to Defendants’ motions under Fed. R. Civ. P. 12(b)(6), even if, arguendo, the Court found the original Complaint failed to state a claim upon which relief can be granted, case law would support the Court granting Plaintiff leave to amend the Complaint to cure the deficiencies. 19 Adams, 2015 V.I. LEXIS 123, at *18 (citing Benjamin v. Bennerson, 2012 V.I. LEXIS 7, *7 (V.I. Super. Ct. Feb. 13, 2012) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008)); James-St. Jules v. Thompson, 2015 V.I, LEXIS 74, *12-13 (V.I. Super. Ct. June 25, 2015) (“{D]espite these deficiencies in the complaint, the Court must grant [plaintiff] an opportunity to amend her complaint unless amendment would be futile’) (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)). 20 The original Complaint was filed on December 8, 2015, while Plaintiff's Motion to Amend was filed on February 16, 2016. 21 Molloy v. Independence Blue Cross, 56 V.1. 155, 172 (V.I. 2012) (“Personal jurisdiction is the authority of a court to exercise jurisdiction over a party before it... A defendant may challenge a court's exercise of personal jurisdiction in a pre-answer motion under [Fed. R. Civ. P.] 12(b)(2)”) (citations omitted). Deisy Clarke v. Pan American Investments, Inc., et. al Case No. ST-15-CV-645 Memorandum Opinion, July 5, 2016 For these reasons, and in light of the Supreme Court of the Virgin Islands’ preference that “cases be resolved on their merits[,]””* the Court will, in the interests of justice and to promote judicial efficacy and economy, grant Plaintiff leave to amend the Complaint and deem the Amended Complaint filed as of February 16, 2016, nunc pro tunc, before considering the merits of Defendants’ Motions to Dismiss. The Court recognizes that Defendants prepared their Motions to Dismiss based on the original Complaint. In order to ensure that Defendants are given an opportunity to respond, the Court will hold Defendants’ Motions to Dismiss in abeyance and set a deadline by which Defendants are to answer, move, or otherwise plead in response to Plaintiff's Amended Complaint, failing which the Court will render a decision on Defendants’ January 20, 2016, Motions to Dismiss while considering the Amended Complaint. The Court will also order the parties to conduct jurisdictional discovery on the issue of the Court’s personal jurisdiction over Defendants.” Because the Court will not hold an evidentiary hearing on the question of personal jurisdiction, Plaintiff need only make a prima facie showing by competent evidence to permit the Court to exercise personal jurisdiction over Defendants.” The Court will set a deadline by which Plaintiff must submit evidence to satisfy its burden, as well as 22 Adams, 2015 V.1. LEXIS 123, at *18-19 (citing Joseph, 54 V.I. at 650). 23 The Court “may evaluate facts pled in the complaint supporting jurisdiction by holding an evidentiary hearing or by ordering the parties to conduct jurisdictional discovery.” Adams, 2015 V.1. LEXIS 123, at *21 (citing Molloy, 56 V.L at 172), “[I]f a court does not elect to hold an evidentiary hearing to determine personal jurisdiction, the plaintiff is only required to establish a prima facie case for personal jurisdiction.” Adams, 2015 V.1. LEXIS 123, at *21 (citing Molloy, 56 V.I. at 172). “Under this standard, it is plaintiff's burden to demonstrate the existence of every fact required to satisfy ‘both the forum's long-arm statute and the Due Process Clause of the Constitution.”” Molloy, 56 V.I. at 173 (citing United Elec. Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 987 F.2d 39, 44 (Ist Cir. 1993) (internal quotation marks omitted); See St. Croix, Lid. v. Shell Oil Co., 60 V.1. 468, 474 (V.I. 2014). “In evaluating whether the plaintiff has established a prima facie case of personal jurisdiction over the defendant under this standard,” Adams, 2015 V.1. LEXIS 123, at *21, the Court “must accept as true all of plaintiff's factual allegations that are supported by affidavits or other competent evidence which would be admissible at trial and must resolve all factual disputes in the plaintiff's favor.” Molloy, 56 V.I. at 173 (citing Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330, 51 V.1. 1219 (3d Cir. 2009) (emphasis added). 4 Molloy, 56 V.I. at 173 (‘[TJhe record reveals that the Superior Court held no evidentiary hearing on the question of personal jurisdiction in this case, and thus the Molloys need only have made a prima facie showing by competent evidence to permit the Superior Court to exercise personal jurisdiction over BCBSA”). Deisy Clarke v. Pan American Investments, Inc., et. al Case No. ST-15-CV-645 Memorandum Opinion, July 5, 2016 a deadline by which Defendants shall submit rebuttal evidence. Notwithstanding, given that the Amended Complaint will be deemed filed, the parties may, of course, stipulate to the Court’s personal jurisdiction over Defendants and inform the Court by filing an informational motion, which would render a determination on the issue unnecessary. An Order consistent with this Memorandum Opinion shall follow. = _ Dated: July << , 2016 a = HON. MICHAEL C. DUNSTON ATTEST: Estrella Georg: JUDGE OF THE SUPERIOR COURT Ac Jerk of C sf OF THE VIRGIN ISLANDS by: Ho Lori Boynes-Tyson Court Clerk Supervisor le all CERTIFIED A TRUE COPY DATE ——<s 7-Of-Me “ESTRELLA H. GEORGE court Acting a By: ____-_-— Came mF lathe Court Clerk II