SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
PETER GHIRAWOO
PLAINTIFF, Civil No SX 19 CV 555
V ACTION FOR DAMAGES
FAYE JOHN BAPTISTE PEPPERTREE JURY TRIAL DEMANDED
HILL LANDOWNERS ASSOCIATION
INC LEATRICE GARCIA AND JOHNNY CITE AS 2021 VI SUPER La?
AND ORETA HUGHES
DEFENDANTS
Appearances
Trudy Fenseter, Esq
Law Office of Trudy Fenster P C
Christiansted US VirginIslands
For Plamtlfi
James L Hymes, III, Esq
Law Offices of James L Hymes III P C
Christiansted U S Virgin Islands
Fm Defendch Peppertree H111 Landowners A9901 I(II‘IOIZ Inc
MEMORANDUM OPINION AND ORDER
WILLOCKS Presiding Judge
THIS MATTER is before the Court ma sponte
BACKGROUND
On October 17 2019 Plaintiff Peter Ghirawoo s (hereinafter Plaintiff ) filed a complaint
against Defendant Faye John Baptiste (hereinafter John Baptiste ) Defendant Peppertr
ee Hill
Landowners Association Inc (hereinafter PHLA ) Defendant Leatrice Garcia (hereinafter
Garcia ) Defendant Johnny Hughes (hereinafter 1 Hughes ) and Defendant Greta
Hughes
(hereinafter 0 Hughes and together with Defendant John Baptiste Defendant PHLA
Defendant Garcia and Defendant J Hughes Defendants ) in connection with an alleged motor
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vehicle incident that occurred in the vicinity of Plot No 212 Mary s Fancy St Croix U S Virgin
Islands Plaintiff alleged the following causes of action Count I Negligence (against all
Defendants) Count II Gross Negligence (against all Defendants) Count III Loss of Use (against
all Defendants) and Count IV Punitive Damages (against all Defendants)
On December 9 2019 Defendant PHLA filed its answer and affirmative defenses in
response to Plaintiff s complaint On June 29 2020 Plaintiff filed a motion for a 90 day extension
period 01 until September 30 2020 to complete service of processes as to Defendant Garcia
and
Defendant Baptiste (hereinafter Motion for Extension ) A copy of the following documents were
attached to Plaintiff 9 motion (i) a return of non service as to Defendant Garcia and a
conesponding affidavit by the process server Felipe Torres Jr indicating that he did not serve
Defendant Garcia (ii) a retum of service as to Defendant J Hugth and a corresponding affidavit
by the p1 ocess server Felipe Torres Jr indicating that he served Defendant 1 Hughes on Novembel
5 2019 (iii) an affidavit by the process server Felipe Tones Jr indicating that he did not serve
Defendant John Baptiste and (iv) a return of service as to Defendant PHLA and a corresponding
affidavit by the process server Felipe Torre: Jr indicating that he served Defendant PHLA
via
Attorney Curt Otto Esq on November 5 2019 ' On September 29 2020 Plaintiff filed a notice
of proof of service as to Defendant John Baptiste and attached a return of service as [0 Defendant
John Baptiste and a corresponding affidavit by the process server Felipe Torres .1 r indicating
that
he served Defendant John Baptiste on August 4 2020
On December 8 2020 Defendant PHLA filed a motion for leave to file a first amended
answer to add a crossclaim which the Court subsequently granted and deemed Defendant PHLA
s
' It appears that lheSL documents were not previously tiled with the Court
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fist amended answer filed on December 8 2020 On February 1 l 2021 the Court entered an ordei
(hereinafter February 11 2021 Order ) whereby the Court granted nunc pro tune Plaintiff’s
motion for a 90 day extension period or until Septembex 30 2020 to complete service of pioces‘ses
as to Defendant Garcia and Defendant Baptiste and ordered that inter alia (1) Plaintiff shall within
five (5) days from the date of entry of the February 21 2021 Older file proof of service for
Defendant Garcia with the Court or show good cause as to why the Court should extend the time
f0] service for Defendant Garcia again (ii) Plaintiff shall within five (5) days from the date of
entry of the February 21 2021 Order Plaintiff shall file proof of service f01 Defendant 0 Hughes
with the Court or show good cause as to why the Court should extend the time for service for
Defendant 0 Hughes 3 and (iii) Plaintiff is notified that failure to comply with this order will result
in the dismiseal of this case without prejudice as to Defendant Garcia and Defendant 0 Hughes
STANDARD OF PROCEDURE
Rule 4 of the Virgin Islands Rules of Civil Procedure (hereinafter Rule 4 ) provides that
[ulnless senice is waived proof of setvice must be made to the court V1 R CW P 4(m) see
also Title 5 V I C § 1 14(21) 1 The serVice of process unless waived by a general appearance
’ In the February [I 2021 order the Court explained
To date the record does not reflect that Plaintiff tiled a plum 01 service of process 3510 Detendant 0 Hughes
The return of semi“ and the corresponding affidavit by [ht process server Felipe Torres Jr both only named
Johnny Hughes as the person served on November 5 2019 As such the Court will order Plaintiff to tile
prom of service for Defendant 0 Hughes with the Court
(Feb 11 2021 Order p 5)
‘ Title 5 V IC § 114 provides
§ 114 Proof 0fsenice of process
(a) Proof of the service 01 the summons and complaint or of the deposit thereot in the post 011ite shall be as
follows
(I) It the service or deposit in the post office is by the marshal or his deputy the certificate 01 such
officer
(2) It by any other person his affidaV it thereof
(3) In ease of publieation the, affidavit 01 the publisher or his representatiw togeter with a copy
01 the publication or
(4) The written admission of the defendant
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is a prerequisite to the Superior Court obtaining personal jutisdiction oven a
defendant McKerzuet Hess 011V] Corp 70VI 210 215(Super Ct March6 2019) (quoting
Ross» Hodge 58 VI 292 311 n 22 (VI 2013) (quoting Joseph; Dali) NensPub Co Inc 57
V I 566 580 n 4 (2012)» see V I R CIV P 4(1)(i) 4 Rule 4 mandates that [Hf a defendant is
not served within 120 days after the complaint is filed the court on motion or on its own after
notice to the plaintiff must dismiss the action without prejudice against that defendant or order
that service be made within a specified time VI R CIV P 4(n) see also Ross
58 VI at 310
( In general actual notice of a law suit is not a substitute for proper service and absent proper
service a case must be dismissed for lack of personal jurisdiction over the defendant ) (citation
omitted) However a court must consider whether good cause exists to extend the 120 day period
for service befote the court may dismiss a complaint against a party for lack of servite Ross 58
V1 at 310 see V1 R ClV P 4(n) ( If a defendant is not served within 120 days after the
complaint is filed the court on motion or on its own after notice to the plaintiff must dismiss
the action without prejudice against that defendant or 01 dCI that setvice be made within a specified
time But if the plaintiff shows good cause for the failure the court must extend the time for service
for an appropriate period ) Even if the court finds that no good cause exists to warrant
an extension the court must at least con§ider whether any other factors warrant a discretionary
extension Ross 58 VI at3lO 11
‘VI R CIV P 4pr0vide§
(”Territorial Limits of EffectiVe $erwice
Serving a summons and complaint or filing a waiver of btrViu, satisfics the obligation 01 smite of
process sufficient to Lstablish personal jurisdiction over a ddendant
(1) who is subject to personal jurisdiction in the Superior Court in the Virgin Islands or
(2) when authorized by statutt.
VI R C“ P 4(|)(i)
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DISCUSSION
Here Plaintiff filed his complaint on October 17 2019 Thus under Rule 4 Defendants
should have been served on or before February 14 2020 s or on or before September 30 2020
for
the defendants where an extension was requested and granted by the Court proofs of services
should have been filed for all Defendants However despite the Court 5 February 1 1 2021 Order
to date Plaintiff has not filed proof of service for Defendant Garcia and Defendant 0 Hughes 01
showed good cause as to why the Count should extend the time for service for them As the Court
ordered in its February 1 l 2021 Order Plaintiff is notified that failure to comply with this order
will result in the dismissal of this case without prej udice as to Defendant Garcia and Defendant 0
Hughes Nevertheless before the Court dismisses without prejudice the case against Defendant
Gatcia and Defendant 0 Hughes the Court will considei whether good cause or any othet factors
warrant a discretionary extension
I Good Cause or Other Causes Warranting Extension
In the context of service of process courts have considered three factors in determining
the existence of good cause (1) reasonableness of plaintiffs efforts to serve (2) piejudice to the
defendant by lack of timely service and (3) whether plaintiff moved for an enlargement of time
to
serve prior to the expiration of the period prescribed by the rule ML Kenzze 70 V I at 216 (quoting
Charla l Woodie) 47 V I 202 210 (Super Ct 2005) (quotation marks brackets
and citations
omitted» In all instances however it is the plaintiff‘s burden to show good cause Id (quoting
Beachszde Assoc 5' LLC 1 Pullman 53 V I 700 713 (V I 2010)) As noted above [e]ven if the
court finds that no good cause exists to warrant an extension the court must at least consider
‘ The Court inadVertently stated in its February I l 2021 Order that Defendants should haw. been
served on or about
April 16 2020
G/mmt 001 10/112 Baptiste (If a!
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whether any other factors warrant a discretionary extension Ross 58 VI at 310 l I see aim
Beaclzszde Assam LLC 53 V I at 717 18 ( In othei words the trial court has discretion as to
whether it will ultimately grant or deny a peimis‘s‘ive extension under PRC? 4(m) but
the court
lacks discretion to refuse to at least consider the appropiiateness of such an extension
) [C]ourts
must consider a discretionary extension when the etatute of limitations bars the filing of
a new
complaint McKenzie 70Vl at218 (citing Beaclzsza'eAssocs LLC 53 VI at7l8 Nevertheless
the Court can still deny a discretionary extension of time even if the statute of limitations
would
bar a plaintiff from re filing its claims Id (citing Petillc ell: 46 F 3d at 1306 3016) 1 K(nmark
123 F 3d 756 759 (3d Cir 1997)»
A Defendant Garcia
Regaiding the first factor of the good cause analysis the reasonableness of Plaintiff‘s
efforts to serve Plaintiff did not file anything in response to the Court 5 February 11 2021 Order
so the Court (106% not know what efforts were undertaken to serve Defendant Garcia since Plaintiff
filed his Motion for Extension on June 29 2020 6 Given that Plaintiff ignored the Court
s Februaty
l I 2021 Order and failed to file proof of service for Defendant Garcia or show good
cause as to
why the Court should extend the time for service this factor does not support a finding
of good
cause Regarding the second factor the prejudice to Defendant Garcia by lack of timely service
the Court has no information to consider here because Defendant Garcia has not appeared
or filed
anything in this matter The Court is left to speculate how the delay would be prejudicial
Thus
this factor is neutral Regarding the third factor whether Plaintiff moved for an enlargement of
" In its February I l 2021 Order the Court granted Plaintiff 5 Motion for Extension nune pro tune
and explained that
the Court found Plaintiff .5 multiple attempts at personally serVing Detendant Galcia
prior to the expiration of Rule
4 s 120 day period Piaintitt s prtxess server Felipe Torres Jr 5 family medical issue
and the COVID l9 outbreak
in 2020 establisheId] good cause for an extension (Feb I I 2021 Order)
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time to serve prior to the expiration of the period prescribed by the rule this factox does not
support a finding of good cause While Plaintiff did previously file the Motion for Extension
said
motion was not timely filed before the expiration of the period prescribed by Rule 4 7 and Plaintiff
failed to serve Defendant Garcia by the deadline he himself set f0tth in the Motion for Extension
Theteafter not only did Plaintiff not file another motion for an extension to serve Plaintiff
also
did not file anything in response to the Court 8 February 11 2021 Ordet Having considered
all
the factors and finding two factors weighing against finding of good cause and one factor neutral
the Court cannot find good cause for Plaintiff’s failure to serve Defendant Garcia See McKende
70 V I at 218 (quoting Benz hszde AWOCJ LLC 53 V 1 at 713 (quoting MC] Telecomms Corp
1
Teleumcepts Inc 71 F 3d 1086 1097 (3d Cir 1995») ( [T]he absence of prejudice alone can
never constitute good cause to excuse late service Instead ptejudice may tip the good cause
scale [but] the primary focus is on the plaintiff‘s reasons for not complying with the time
limit in
the first place ) However the Court 3 analysis does not end here the Coutt must determine if
there are othet factors that may warrant an extension
Hete the statute of limitations expired in this matter Although Plaintiff did not include the
date of the alleged motox vehicle incident in her complaint Defendant PHLA indicated
in its
croqsclaim that the alleged motel vehicle incident occurred on or about June 26 2018 Personal
injury claims are subject to a two yeat statute of limitations in the Virgin Islands See Title
5VIC
§ 31(5)(A) 8 Over sixteen months have passed since Plaintiff filed his complaint and
he has yet to
Plaintiff 5 Motion tor Extension was tiled on June 29 2020 Plaintiff filed his complaint on October
17 2019 Thus
under Rule 4 the deadline to serve Defendants expired on or about February 14 2020
8 Title 5 V I C § 11 provides
§ 31 Time for commencement of various actions
Civil actions shall only be commenced within the periods prescribed below utter the cause
of action shall
have accrued except when in special eases a different limitation is prestribed by statute
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serve Defendant Garcia As noted above Plaintiff did not timely file his previous Motion for
Extension before the expiration of the period prescribed by Rule 4 Plaintiff failed to serve
Defendant Garcia by the deadline he himself set forth in the Motion for Extension and Plaintiff
ignored the Court 3 February 1 l 2021 Order Taking everything into consideration the Court finds
that there lacks a Clear inteiest 0n Plaintiff 5 part to pursue his case against Defendant Garcia As
such the Court finds that there are no other causes that warrant a discretionary extension here as
to Defendant Garcia and the Court will dismiss without prejudice the case against Defendant
Garcia See V I R CIV P 4(a) ( If a defendant is not served within 120 days after the complaint
is filed the court on motion or on its own after notice to the plaintiff must dismiss the action
without prejudice against that defendant or ordet that service be made within a specified time )
B Defendant 0 Hughes
Regarding the first factOI of the good cause analysis the reasonableness of plaintiff‘s
efforts to serve Plaintiff did not file anything in response to the Court 5 February 1 1 2021 Oldel
so the Court does not know what efforts were undertaken to serve Defendant 0 Hughes since the
Court s February 11 2021 Order However the Court must note that it appears that Plaintiff was
under the impression that Defendant 0 Hughes was served on November 5 2019 with Defendant
J Hughes and thus Plaintiff was not aware of the lack of service as to Defendant 0 Hughes until
the Court 3 February 11 2021 Order Given that Plaintiff previously attempted to timely serve
Defendant 0 Hughes and was in fact under the impression that Defendant 0 Hughes was timely
served this factor supports a finding of good cause Regarding the second factor the prejudice
(5) Two years
(A)An action torlibel slander assault battery seduction false imprisonment or for any
injury to the person or rights 01 another not arising on contract and not herein especially
enumerated 0r [0 set aside a sale 01 real property for non payment of real property taxes
pursuant to Title ”4% chapter 89 subchapter III of this Code
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t0 the defendant by lack of timely service the Court has no information to consider here because
Defendant 0 Hughes has not appeared or filed anything in this matter The Court is left to
speculate how the delay would be prejudicial Thus this factor is neutral Regarding the third
factor whether plaintiff moved for an enlargement of time to serve prior to the expiration of the
petiod prescribed by the rule this factor also does not support a finding of good cause Even if
Plaintiff was previously under imptession that Defendant 0 Hughes was timely served the
Court s February I l 2021 Order should have alerted Plaintiff of his lack of service as to Defendant
0 Hughes and at that time pu1suant to the February 11 2021 Order Plaintiff should have filed
the corrected proof of service or showed good cause as to why the Cou1t should extend the time
for service Instead Plaintiff did nothing and ignored the Court 3 February 1 1 2021 Order Having
consideted all the factors and finding one factor weighing in favor of finding of good cause one
factor neutral and one factor weighing against finding of good cause the Court finds good cause
for the failure to serve Defendant 0 Hughes See Mc Ken 1e 70 V I at 218 (quoting Beachwde
A990“ LLC 53 VI at 713 (quoting MCI Telecomms Corp 71 F 3d at 1097))( prejudice may
tip the good cause scale [but] the primary focus is on the plaintiffs reasons for not complying with
the time limit in the first place ) As such the Court will extend the time for setvice as to
Defendant 0 Hughes See VI R CIV P 4(n)( If a defendant is not served within 120 days
after
the complaint is filed the court on motion or on its own after notice to the plaintiff must
dismiss the action without prejudice against that defendant or order that service be made within a
specified time But if the plaintiff shows good cause for the failure the court must extend the time
for service for an appropriate period )
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CONCLUSION
Based on the foregoing the Court will dismiss without prejudice the case against
Defendant Gaicia and order Plaintiff file proof of service fox Defendant 0 Hughes within thirty
(30) days Accordingly it is hereby
ORDERED that the case against Defendant Garcia shall be DISMISSED WITHOUT
PREJUDICE It is further
ORDERED that within thirty (30) days from the date of entry of this Order Plaintiff
shall file proof of service for Defendant 0 Hughes with the Court And it is further
ORDERED that Plaintiff is notified that failure to comply with this order will result in the
dismissal of this case without prejudice as to Defendant 0 Hughes
DONE and so ORDERED this 9%“day of February 2021
HAROLD W L WILLOCKS
Presiding Judge of the Superior Court