IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
******'k******
SENATOR ADLAH DONASTORG Jr ) Case No ST 2002 CV 00117
BENEDICTA DONASTORG ADLAH )
DONASTORG Sr JOSEFINA )
DONASTORG ELLA MORON and ) ACTION FOR DAMAGES
NORMA DURAN )
)
Plaintiffs ) JURY TRIAL DEMANDED
v )
)
DAILY NEWS PUBLISHING CO INC )
LOWE DAVIS HOLLAND DYKE )
REDFIELD VITELCO and OAKLAND )
BENTA )
)
Defendants )
Cite as 2021 VI Super 109U
MEMORANDUM OPINION
111 THIS MATTER is before the Court on the following
1 Motion to Enter Final Judgment for Defendants Daily News Publishing Company, Inc and
J Lowe Davis, filed February 7, 2018; and
2 Plaintiffs Opposition To Defendants Motion To Enter Final Judgment For Daily News
Publishing Company Inc And J Lowe Davis filed May 22 2018
{[2 Because there are no outstanding claims against The Daily News Publishing Co Inc and
J Lowe Davis, and the remaining claims involve different parties the Court will grant the Motion
I BRIEF BACKGROUND
113 Plaintiffs Senator Adlah Donastorg Jr , Benedicta Donastorg, Adlah Donastorg, Sr ,
Josefina Donastorg, Ella Moron, and Norma Duran' (hereinafier referred to as Donastorg”)
' The initial action was filed on March 1 2002 by Senator Donastorg and his wife Benedicta against Daily News
Innovative Communication Corporation (“ICC”), and [CC 5 owner Jeffrey Presser (“Presser ) ICC and Prosser
were severed as defendants in this action ICC entered bankruptcy and no longer owns either Daily News Publishing
Co , Inc or VITELCO VITELCO and Holland Dyke Redfield were added later added as Defendants Senator
Donastorg s father, Adlah Donastorg Sr , Senator Donastorg 3 mother, Josefina Donastorg and Senator Donastorg s
sisters Ella Moron and Norma Duran, were also later added as Plaintiffs
Donastorg et al v Daily News Publishing Co Inc et a! Cite as 2021 VI Super 109U
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Memorandum Opinion
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asserted five causes of action against Daily News Publishing Co, Inc and J Lowe Davis2
(collectively Daily News”) (l) defamation, (2) interference with business relationships; (3)
intentional infliction of emotional distress; (4) negligent infliction of emotional distress and (5)
invasion of privacy 3 On July 30, 2014, Daily News moved for summary judgment 4 By Order
dated August 19, 2015, summary judgment was granted in favor of Daily News and Holland
“Dyke” Redfield on all putative claims asserted against them in Donastorg’s Fourth Amended
Complaint 5
114 This matter still proceeds as to the remaining defendants VITELCO and Oakland Benta
( Benta ) As a result, Daily News now moves to ‘ enter final judgment for [Daily News] and
against [Donastorg] pursuant to Rule 54(b) of the Virgin Islands Rules of Civil Procedure
[1 LEGAL STANDARD
15 Rule 54(b) provides
When an action presents more than one claim for relief whether as a claim,
counterclaim, crossclaim, or third party claim or when multiple parties are
involved, the court may direct entry of a final judgment as to one or more, but
fewer than all, claims or parties only if the court expressly detennines that there
is no just reason for delay Otherwise, any order or other decision, however
designated that adjudicates fewer than all the claims or the rights and liabilities
of fewer than all the parties does not end the action as to any of the claims or
parties and may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties‘ rights and liabilities 6
III DISCUSSION
116 Daily News argues that because the Court 5 summary judgment decision found that “there
is no genuine issue of material fact to support the claim that they acted in a tortious manner, either
singly or in concert with the remaining Defendants,” the summary judgment decision should be
adduced to a final judgment, which will allows Daily News to secure a judgment for attorney 5
fees and costs
3 Although named as separate defendants Plaintiffs do not allege that Davis engaged in any tortious activity distinct
from the tortious activity allegedly perpetrated by Daily News Publishing Co Inc Because Plaintiffs have not asserted
an independent basis for liability against Davis this Memorandum Opinion analyzes Plaintiffs claims against Daily
News Publishing Co Inc and Davis together This approach minors Plaintiffs treatment of their own claims See
generally Pls Am Resp to Defs Stmt of Facts 9—46 (discussing the allegedly actionable conduct of all Defendants
without differentiating between Daily News Publishing Co Inc and Davis)
3 Pls Fourth Am Comp!
“ On January 12 2015 Redfield joined Daily News summary judgment motion
5 See generally Donastorg v Daily News Pub! g Co Inc 63 V I 196 (V I 2015)
‘ VI R CIV P 54(b)
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Memorandum Opinion
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117 Rule 54(b)7 “attempts to strike a balance between the undesirability of piecemeal appeals
and the need for making review available at a time that best serves the needs of the parties ”8 In
rendering a final judgment decision, the U S Supreme Court has cautioned that this rule is not to
be used routinely, and specifically, the court must exercise its discretion ‘in the interests of sound
judicial administration’ ”9
1I8 When entering a decision under Rule 54(b), the court must make two findings First, the
court must make “an express determination that there was no just reason for delay, as literally
required by the text of Rule 54(b) '0 Second, the Court must make a clear indication that it was
considering all the questions relevant to a Rule 54(b) determination ’ “ In addition, the Court must
consider several non exclusive factors in certifying a judgment as final under Rule 54(b)
(l) the relationship between the adjudicated and unadjudicated claims; (2) the
possibility that the need for review might or might not be mooted by future
developments in the [trial] court, (3) the possibility that the reviewing court
might be obliged to consider the same issue a second time (4) the presence or
absence of a claim or counterclaim which could result in set off against the
judgment sought to be made final (5) miscellaneous factors such as delay,
economic and solvency considerations, shortening the time of trial, frivolity of
competing claims, expense, and the like '2
119 The Court finds the circumstances of this case support entering the Court 5 summary
judgment as final pursuant to Rule 54(b) There is no just reason for delaying the entry ofjudgment
with respect to the adjudicated claims against Daily News In entering summary judgment, the
Court stated that
Although Plaintiffs purport to state multiple causes of action against Defendants,
the Plaintiffs theories of liability distill into two categories Under the first
category, Donastorg alleges that a specific defendant took a specific action,
which in turn harmed a specific plaintiff As an example Plaintiffs allege that
Daily News published certain articles and editorials, thereby defaming Senator
Donastorg Under the second category Plaintiffs allege that all Defendants in
this case were acting in concert, that any Defendant s allegedly tortious conduct
may be imputed to any or all of the other Defendants Only once a defendant’s
7 The cases cited in this Opinion analyze the FED R CIv P 54(b) which is identical to the V I R Clv P 54(b)
“Devcon Intern Corp v Rellance Ins Co Civ N0 2009 136 2007 WL 4800356 at *2 (DVI Dec 21 2007)
9 Id (quoting Cumss Wright Corp v General Elec Co 446 U S 1 100980))
'0 Hagleyv Hendricks S Ct Civ No 2007 26
2007 WL 5060412 at *3 (Vi Dec 28 2007)(unpublished)
11 Id
' Firsthank Puerto RICO v Webster Super Ct Civ No ST 12 CV 239
2016 WL 3702773 at *4 (VI Super Ct
Julyl 2016) (unpublished) (citing to Hagley S Ct Civ No 2007 26
2007 WL 5060412 at ‘4)
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liability for its own alleged misconduct can be ascertained may that liability be
imputed to the other defendants '3
1H0 Considering that, the Court found that Daily News was absolved of any liability under the
theories of civil conspiracy, veil piercing and reverse veil piercing theories '4 Under the first
theory, the Court found that because tortious conduct is a prerequisite for civil conspiracy, no
reasonable jury could find Daily News liable In other words, Daily News is not liable for any of
the tortious conduct attributed to them, and as a result, no reasonable jury could conclude that
Daily News committed their allegedly tortious conduct in concert with the other remaining
Defendants '5 In addition under the second theory, this Court held that no reasonable jury could
find that Daily News exercised sufficient control over VITELCO to justify holding Daily News
liable for any liability that VITELCO may incur ‘6 Alternatively there is no evidence that suggests
VITELCO or Benta owned any portion of or occupied a position sufficient to exercise control over
Daily News to also justify holding Daily News accountable for any liability that VITELCO or
Benta may incur ‘7
1[ 11 Accordingly no appellate court would have to decide the same issues more than once
even if there were subsequent appeals” since the Court found no concerted action pursuant to an
alleged common design between Daily News and any of the other parties '3
1112 In specifically applying the factors above to this case, there is no relationship between the
adjudicated and unadjudicated claims Donastorg argues that the claims and parties are interrelated
because VITELCO and Daily News were used to timber their former owner 5 personal objectives
In addition, Donastorg argues that Benta was an agent of VITELCO and participated in the scheme
1113 While the factual relationship between the claims is one factor to be considered in granting
a final judgment under Rule 54(b), it is not determinative '9 The Court rejected the multiple
theories under which Donastorg proffers that the conduct of one defendant may be imputed upon
another defendant for the purposes of establishing the liability of the second defendant 2" In other
words, Donastorg failed to establish that Daily News was controlled by VITELCO or Benta to
subject itself to liability or that VITELCO or Benta controlled Daily News to subject Daily News
'3 Donastorg 63 VI at218 l9
'4 Id at 328 46
'5 Id at 345
'6 Id at 345 46 ( To the contrary Plaintiffs pied that VITELCO was wholly owned by ICC during the Operative
periods of this lawsuit ’) Benta was not analyzed under the veil piercing theory because Benta is an individual and
not a corporate defendant
17 Id
'3 Id Devcon Intern Corp Civ No 2009 136 2007 WL 4800356 at *3 (potential future appeals will not involve
similar issues because summary judgment absolved claims)
Cold Metal Process Co v United Engineering & Foundry Co
76 S Ct 904 909 (1956)
I Donastorg 63 VI at 328 46
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also to any liability they may incur 2' The claims against Daily News are adjudicated because, not
only was Daily News not found liable for its own alleged tortious conduct, but because of such,
Daily News could not be found to be liable for any tortious conduct that may be attributed to the
remaining claims against VITELCO and Benta 22
1l14 Similarly, there is no possibility that the need for review is likely to be mooted by future
developments in the trial court Donastorg argues that all the Defendants are intertwined based on
their business relationships However, the remaining claims and parties different from the
adjudicated claims 23 Moreover, Donastorg 5 remaining claims against VITELCO and Benta are
completely distinct from the claims against Daily News 24 In fact, Donastorg does not assert that
VITELCO published defamatory statements but, rather, that the statements were made on behalf
of VITELCO 25 Likewise, Donastorg alleges that Benta was used by VITELCO and others to
investigate Donastorg 26 Conversely, Daily News is alleged to have published the defamatory
statements and invaded Donastorg s privacy 27 Furthermore, this Court found that there were no
concerted actions among Daily News VITELCO and Benta that would warrant Daily News being
held accountable for any liability that VITELCO and Benta may incur 28
1[15 While Donastorg correctly asserts that Rule 54(b) is used to avoid unnecessary piecemeal
appeals, Donastorg has offered no compelling arguments that the claims dismissed by the summary
judgment decision are likely to be heard a second time Rather, Donastorg states that the parties
will seek appeals especially if VITELCO and Benta s pending summary judgment motions are
decided in their favor Furthermore, Donastorg states that “judicial efficiency will be preserved
by allowing the appellate court to review this case as whole While Donastorg asserts that this
case s foundation involves claims against specific defendants, and that all defendants acted in
concert, this is unfounded ’9 The instant case is unlike Frederick v Armstrong, where the claim
against two parties involved identical facts and transactions ‘0 Here, there is no factual overlap in
the remaining claims against VITELCO and Benta 3'
-' Id at 344 46
7‘) Id
’3 Id
4 Fourth Am Comp] 1” 12(a) (c) 20 See also PIS Mem of Law in Opp to Def VlTELCO s Mot for J on the
Headings Dismissing Sen Donastorg's Defamation Claim [8 20 (arguing that Redfield made defamatory statements
on VITELCO s behalf) 1d at 2&36 (arguing that the allegedly defamatory material published by Daily News should
be attributed to VITELCO)
‘Donastorg 63 VI at2l8 l9n 18
6 Id n 22 23
7 Id 328 46
’8 Id
"9 Donasmrg 63 V I at 218 19
3° Frederick v Armstrong
47 VI 473 482 83 (D VI 2005)
3' Id at 483 (quoting ConsoltdatedRall Corp v Fore River Ry Co 86l F 2d 322 326 (lstCir I988) (claims arising
from identical facts too intertwined to justify review)
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1116 Moreover, the Court has no method to determine the possibility that the reviewing court
might be obliged to consider the same issue a second time However, in Devcon Intern Corp v
Reliance Ins Co , the court in analyzing this factor, determined that since a favorable summary
judgment fiilly removed that defendant from liability ‘ no possibility exists that could result in a
setoff against its liability or lack thereof 32 Similarly, here, this Couit s 2015 decision absolved
Daily News from any liability both individually or in concert with the other defendants and
therefore, the Court is inclined to reach the same conclusion on this factor as in Devcon 33
{[17 The last factor considers delay, economic and solvency considerations, shortening the time
of trial frivolity of competing claims, expense, and the like Donastorg argues that Daily News
only want to collect fees and expenses ’ Such a response does not explicitly address these
miscellaneous factors as to the other Defendants or Plaintiffs in this case However, it does imply
an economic consideration that actually favors Daily News Donastorg 3 claims in this case,
ultimately unfounded, have resulted in drawn out, expensive litigation that has burdened Daily
News
118 Furthermore Donastorg argues that Daily News failed to state any reasons that “would
hinder delay, nor any economic solvency considerations ” While Daily News provides no reason
that satisfies this factor, the Court notes that these factors are not exclusive 3" Rather, these non
exclusive factors are not a prerequisite but are used to determine whether an entry under Rule 54(b)
advances judicial administration and the equities of the parties 35 While an entry of a final
judgment pursuant to Rule 54(b) is not advised to accommodate counsel, the Court recognizes that
aside from the $280,000 00 in expenses, this litigation has been ongoing for eighteen years 36
IV CONCLUSION
1119 By an 89 page Memorandum Opinion and Order entered August 19, 2015, the Court
granted summary judgment to Daily News on each claim, finding that no reasonable jury could
find in Donastorg’s favor against Daily News Because of this, Daily News could not be held
liable for any liability the remaining Defendants VITELCO and Benta may incur Since there are
no outstanding claims against Daily News, the Court finds that there is no just reason for delay
In addition, the adjudicated claims are distinct from the remaining parties and the claims against
them
3 Devcon Intern Corp Civ No 2009 136 2007 WL 4800356 at *3
33 Id
3" Armstrong 47 V I at 482
35 Id
’6 Braswe/l Shipyards Inc 2 F36 [335 6 (quoting Morrtson-Knudsen Co v Archer 655 F2d 962 965 (9th
Cir 1981) ( Judgments under Rule 54(b) must be reserved for the unusual case in which the costs and risks of
multiplying the number of proceedings and overcrowding the appellate docket are outbalanced by pressing needs of
the litigants for an early and separate judgment as to some claims or parties )
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1|20 Thus, the Court finds the entry of final judgment on the claims between Donastorg and
Daily News to be in the interest of sound judicial administration Accordingly, the Motion to Enter
Final Judgment for Defendants Daily News Publishing Company, Inc and J Lowe Davis, filed
February 7, 2018 will be granted A judgment consistent with this Memorandum Opinion follows
DATED January 7 2021 W Z ! j g IM m
DENISE M FRA COIS
Judge of the Superior Court
of the Virgin Islands
ATTEST
TAMARA CHARLES
Clerk of the Court
By: WM
[0/ LORI BOYNES
Chief Deputy Clerk / / Z A0 ,2/
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
**************
SENATOR ADLAH DONASTORG Jr ) Case No ST 2002 CV 00117
BENEDICTA DONASTORG ADLAH )
DONASTORG Sr JOSEFINA )
DONASTORG ELLA MORON and ) ACTION FOR DAMAGES
NORMA DURAN )
)
Plaintiffs ) JURY TRIAL DEMANDED
V )
)
DAILY NEWS PUBLISHING CO INC )
LOWE DAVIS HOLLAND DYKE )
REDFIELD VITELCO and OAKLAND )
BENTA )
)
Defendants )
FINAL JUDGMENT AS TO DEFENDANTS DAILY NEWS PUBLISHING
COMPANY INC AND J LOWE DAVIS
AND NOW, consistent with this Court’s Memorandum Opinion entered on even date, it is
hereby
ORDERED that the Motion to Enter Final Judgment for Defendants Daily News
Publishing Company, Inc and J Lowe Davis, filed February 7, 2018, is GRANTED, and it is
further
ORDERED ADJUDGED AND DECREED that final judgment is entered against the
Plaintiffs and in favor of Defendants Daily News Publishing Company, Inc and J Lowe Davis
with respect to this Court’s Memorandum Opinion and accompanying Order entered on August
19, 2015 which dismissed with prejudice Counts One, Two, Three and Four of Plaintiffs’ Fourth
Amended Complaint as to Defendants Daily News Publishing Company, Inc and J Lowe Davis;
and it is further
Donastorg er a! v Dally News Pubhshmg Co Inc et a!
Case No ST 2002 CV 00117
Final Judgment as to Defendants Daily News Publishing Company, Inc and J Lowe Davis
Page 2 of 2
ORDERED that a copy of this Final Judgment as to Defendants Daily News Publishing
Company, Inc and J Lowe Davis and accompanying Memorandum Opinion shall be directed to
counsel of record
DATED January 7 2021 mm a labU/M
DENISE M FRANCOIS
Judge of the Superior Court of the Virgin Islands
ATTEST
TAMARA CHARLES
Clerk of the Court
By £04m MM
’0 r LORI BOYNES
Chief Deputy Clerk 1 1 x20)./