IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX

ISLAND AIRLINES LLC, EAGLE AVIATION, LLC)
and TROND OSTHAUG, )
Plaintiffs, ) CASE NO.: SX-16-CV-404
v. ACTION FOR DEFAMATION,

WILLIAM BOHLKE, JR., BOHLKE ) CONSPIRACY AND TORTIOUS
INTERNATIONAL AIRWAYS, INC., WILLIAMR.  ) INTERFERENCE
BOHLKE, MICHAEL JOHNSON, VIRGIN ISLANDS )
PORT AUTHORITY, and DAVID W. MAPP, ) 2020 Vi Super 83U
ASSISTANT EXECUTIVE DIRECTOR OF THE )
VIRGIN ISLANDS PORT AUTHORITY IN HIS )
OFFICIAL AND INDIVIDUAL CAPACITY,

Defendants. )

MEMORANDUM OPINION and ORDER

qi Before the Court is Defendants William Bohlke, Jr., William R. Bohlke and Bohlke
International Airways, Inc.’s (BIA) Motion to Reconsider, filed April 23, 2020, seeking
reconsideration pursuant to V.I. R. Civ. P. 6-4(b) of the March 6, 2020 Order denying Bohlke
Defendants’ Rule 12(b)(6) Motion to Dismiss Plaintiffs’ First Amended Complaint (Complaint).
Plaintiffs’ Opposition to Defendants’ Motion to Reconsider was filed May 27, 2020, Defendants’
Reply was filed June 16, 2020, and the Motion came on for oral argument July 28, 2020. For the
reasons that follow, the Motion to Reconsider will be granted in part and denied in part.

{2 The March 6, 2020 Order recognized that the Virgin Islands is a notice pleading jurisdiction
such that a plaintiff's complaint will be deemed sufficient if it sets forth “a short and plain
statement of the claim showing that the pleader is entitled to relief.” V.I. R. Civ. P. 8(a)(2). The
Order denied the Motion to Dismiss, finding that Plaintiffs’ Complaint adequately alleged facts to
put Bohlke Defendants on notice of the claims against them, citing Mills-Williams v. Mapp, 67
V.1. 574, 585 (V.I. 2017). The present Motion to Reconsider argues that Bohike Defendants are
entitled to relief under Rule 6-4(b)(3), claiming that Court committed clear error in failing to
consider the legal insufficiency of Plaintiffs’ claims. Although the Complaint is replete with facts
putting them on notice of Plaintiffs’ claims, Bohlke Defendants contend that the Rule 8(a)(2)
pleading standard is not met because those alleged facts, accepted as true, do not set forth any

legally sufficient claims and, therefore, fail to show that Plaintiffs are entitled to relief.
island Airlines, LLC et al. v Bohlke Airlines International et al: SX 16 CV 404
Memorandum Opinion and Order 

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BACKGROUND

43 By the allegations of Plaintiffs’ Complaint, accepted as true for this review, Plaintiffs
Island Airlines, LLC and Eagle Aviation, LLC are Virgin Islands limited liability companies, and
Plaintiff Trond Osthaug, a Virgin Islands resident, is the sole member of each. Island Airlines
operates an air charter company doing on demand charters and medical evacuation flights. In
connection with its business, Island Airlines determined to have its sister company, Eagle
Aviation, establish its own hangar, purchase fuel trucks and ground equipment necessary to obtain
certification as a fixed-base operator at the Henry Rohisen Airport in St. Croix in order to engage
in fuel sales to Island Airlines and other private and public customers.
14 Defendant BIA is a Virgin Islands corporation and is the only fixed-based operator at the
airport in St. Croix with the only concession to sell jet fuel. Defendants William Bohlke, Jr. and
William R. Bohlke are residents of the Virgin Islands. Defendant David Mapp was at relevant
times the assistant executive director of the Virgin Islands Port Authority (VIPA) and manager of
the Rohlsen Airport. Defendant Michael Johnson is a former employee of Island Airlines,
originally hired as a pilot, subsequently acting as office manager.
15 The Complaint alleges the following causes of action against Defendants BIA, William
Bohike, Jr. and William R. Bohlke as a group, without differentiating among them:

Count I: Tortious Interference with Existing Contractual and Prospective Business Relations

Count II: Civil Conspiracy to Tortiously Interfere with Contractual and Prospective Business Relations

Count II: = Conversion

Count IV: — Conspiracy to Commit Violations of Virgin Islands Antimonopoly Act 11 V.LC. §1501, et seq.

Count VI: Violation of Virgin Islands Unfair Trade Practices Act I2A V.1C. §101, et seq.

Count VIII: Defamation
Count X: Conspiracy to Violate 14 V I C § 461 to Access Computer for Fraudulent Purposes

76 In2014, Eagle Aviation made a proposal to VIPA, through Mapp and the VIPA executive
board, to allow Eagle Aviation to gain certification as a fixed-based operator in St. Croix, which
would grant it authorization to sell jet fuel at Rohlsen Airport in competition with BIA. VIPA
represented to Eagle Aviation that if it broke ground on a hangar, it would receive a temporary
concession from VIPA to sell fuel. In reliance, Eagle Aviation purchased additional fuel trucks

and broke ground on the hangar construction in 2015.
Island Airlines, LLC et al. v Bohike Airlines International et al: SX 16 CV 404
Memorandum Opinion and Order 

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{7 During the same period, Island Airlines secured a certificate of need from the Virgin
Islands government and entered into a business relationship with MASA [Medical Air Services
Association] to perform air ambulance medical evacuation services from St. Croix. Island Airlines
anticipated basing its planes and personnel in St. Croix, allowing it to operate at lower cost, relying
upon its ability to purchase jet fuel in St. Croix from Eagle Aviation’s fuel concession. After Island
Airlines’ agreement with MASA and after Eagle Aviation broke ground on the hangar, VIPA
informed Eagle Aviation on October 26, 2015 that additional conditions would be required for it
to secure the fuel concession, namely that completion of its hangar would be required by February
16, 2016 with fuel storage facilities on site. Eagle Aviation was unable to meet VIPA’s revised
conditions and did not receive the fuel concession, leaving BIA as the only entity permitted to sell
jet fuel in St. Croix.

{8 On September 14, 2015, Johnson resigned from Island Airlines, without notice, following
which he allegedly illegally accessed and stole confidential business records of Island Airlines that
he provided to Bohlke Defendants, who had conspired to hire Johnson away from Island Airlines.
Bohlke Defendants and Johnson used the confidential information to contact MASA on multiple
occasions to attempt to have MASA transfer its business to BIA.

{9  Bohtke Defendants and Johnson also conspired together to make knowingly false claims
to the Federal Aviation Administration (FAA), including false claims that Island Airlines was
involved in an illegal charter, prompting an FAA investigation and stalling the completion of the
FAA permitting process for Island Airlines’ planes and operations. Additionally, Bohlike
Defendants made claims regarding Island Airlines to U.S. Customs and wrote letters to VIPA
board members alleging misconduct on the part of Island Airlines.

710 Asa result of the interference by Bohlke Defendants, the fuel concession agreement that
Eagle Aviation should have received from VIPA was denied. All Plaintiffs claim that they have
suffered economic damages as a result, and Plaintiff Osthaug claims to have suffered mental

anguish and loss of enjoyment of life, that will continue in the future.
DISCUSSION

q 11 The Motion to Reconsider asserts that, notwithstanding the Complaint’s allegations setting

forth voluminous facts determined by the March 6, 2020 Order as sufficient to put Defendants on
fsland Airlines, LLC et al. v Bohlke Airlines International et al: SX 16 CV 404
Memorandum Opinion and Order 2020 Vi Super 33U
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notice of the claims brought against them, reconsideration is necessary because those facts alleged
fail to show that Plaintiffs are entitled to relief as required by Rule 8(a)(2). Rather, Plaintiffs have
presented claims that are legally not viable, and Defendants’ Rule 12(b)(6) Motion to Dismiss
should have been granted. All material allegations of the Complaint are construed in the light most
favorable to Plaintiffs as non-movants, and all reasonable inferences are drawn in favor of the non-
movants. Nino v. The Jewelry Exchange, 50 V.1. 929, 932 (D.V.1. 2008) (citing Christopher v.
Harbury, 

 (2002); other citations omitted). The claims against the Bohlke
Defendants are addressed seriatim.

412 Count I: Tortious Interference with Existing Contractual and Prospective Business Relations.

To prevail on a claim for intentional interference with existing contractual relations in the

Virgin Islands, a plaintiff must prove: (1) the existence of a contract between the plaintiff and a
third party; (2) that the defendant knew of the contract; (3) that the defendant interfered with the
contract using improper means or with an improper motive; and (4) that the plaintiff was damaged
as a result. Donastorg v. Daily News Publishing Co., Inc., 63 V.1. 196, 288 (V.1. Super. 2015).
#13 To prevail on a claim for interference with prospective business relations, a plaintiff must
demonstrate: (1) the existence of a professional or business relation that is reasonably certain to
produce an economic benefit for the plaintiff; (2) intentional interference with that relationship by
the defendant; (3) that was accomplished through improper means or for an improper purpose; and
(4) that the defendant’s interference damaged the plaintiff. id. at 293.

{14 Here, Plaintiffs allege that Eagte Aviation made a proposal to which VIPA agreed to permit
Eagle to build a hangar and establish a fuel dispensing concession at the St. Croix airport in
competition with BIA’s jet fueling operation. Defendants assert that even if Eagle had succeeded
in securing certification as a fixed-base operator, such status does not constitute a contractual
relationship between Eagle and VIPA. Regardless, Eagle Aviation failed to meet necessary VIPA
prerequisites for certification such that no relationship between them was ever established. Yet
Plaintiffs’ allegations, accepted as true, set forth that VIPA represented to Eagle that it would be
granted a temporary concession to sell fuel upon breaking ground on its hangar. In reliance, Eagle
borrowed and spent funds, purchased fuel trucks and ground equipment, and began construction
of a hangar. Further, Island Airlines, with a certificate of need from the government, entered into

a business relationship with MASA to perform medical evacuations. Island Airlines’ prospective
‘sland Airlines, LLC et al. vy Bohtke Airlines International et al: SX 16 CV 404
Memorandum Opinion and Order 

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operation was dependent for its economic viability on its sister company’s commencement of its
fuel concession in St. Croix. During this process, the Complaint alleges that Bohlke Defendants
learned of Eagle’s pending agreement with VIPA and, through their personal relationship with
Mapp, sought to prevent Eagle Aviation from obtaining the fuel concession in order to maintain
BIA’s jet fuel sales monopoly on St. Croix. Plaintiffs allege that, using improper means, Bohlke
Defendants interfered with Eagle’s concession, which had the further effect of preventing Island
Airlines from commencing the air ambulance operation contemplated in its business relationship
with MASA. Plaintiffs claim that Bohlke Defendants improperly exploited their relationship with
Mapp and engaged in illegal acts, including donations to government officials, which resulted in
the denial of the promised fuel concession to Eagle. On account of Bohlkes’ interference with
these business relationships, both Eagle Aviation and Island Airlines suffered economic loss

{15 Defendants argue that the claims presented in Count 1, together with all other claims against
Defendants William Bohlke, Jr. and William R. Bohlke, must be dismissed as the individual
Bohike Defendants cannot be held liable for acts committed by and on behalf of BIA. Defendants
cite the central principle of corporate law, codified in 13 V.L.C. § 344(b), that “[nJo suit shall be
brought against any officer, director or stockholder for any debt or liability of a corporation, of
which he is an officer, director or stockholder, until judgment be obtained therefor against the
corporation.” .

{16 Here, Plaintiffs claim that BIA is “the only Fixed Based Operator (FBO) at the Henry
Rohlsen Airport in St Croix with the only concession to self jet fuel.” Complaint, [ 8. Accordingly,
the necessary inference drawn from the allegations of Count I is that the alleged interference of
Bohlke Defendants with the Eagle-VIPA business relationship and with the Island Airways-
MASA relationship was intended to further the business interests of BIA alone rather than any
interests of either of the individual Bohlke Defendants. The Complaint asserts no facts of any
individual or personal conduct of either of the individual Bohlke Defendants, but conflates all
actions alleged throughout as actions of “the Bohlke Defendants.”

{!7 In its 183 paragraphs, the Complaint never defines the relationships among Bohike -
Defendants, The Motion seeks to do so, providing factual information not set forth within the
Complaint’s allegations and not otherwise existing in the record that all actions taken by the

individual Bohlke Defendants were taken while “they were acting as agents, employees, or officers
Isiand Airlines, LLC et al. v Bohtke Airlines international et al: SX 16 CV 404
Memorandum Opinicn and Order 

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of the company, namely Bohlke International Airways, Inc.” Motion, at 8.

{18 The Virgin Istands District Court denied a Rule 12(b)(6) motion in a case where a corporate
employee brought an action for intentional infliction of emotional distress against his employer
and a supervisory employee, finding that “[t]he Court lacks the necessary information regarding
these individuals’ respective roles at [the employer corporation] to determine whether they had
sufficient authority to act as [the corporation] itself, or whether they were mere supervisory
employees.” Accepting the complaint’s allegations as true, the District Court was unable to
determine “at this stage of the proceedings” whether the individual defendant was acting as “the
alter ego” of the corporate defendant. Nino v. The Jewelry Exchange, 50 V.I. at 935.

19 The Complaint here alleges that Bohike Defendants, including the individual Defendants,
made knowingly false claims and reports to the FAA, to U.S. Customs and to the VIPA board,
interfering with Plaintiffs’ relationships with VIPA and MASA and resulting in loss to Plaintiffs.
(See Complaint, J] 47, 50, 51, 57, 58.) Further, Plaintiffs allege that Defendants (not limited to
BIA) have maintained a monopoly to sell jet fuel on St. Croix since 1975 by means of illegal acts,
“donations” to government officials and other favors, and that the individual Defendants interfered
with Plaintiffs’ business relationships by seeking favors from their friends, including Mapp. (Jd.
{7 10, 71.) The Court may be inclined to infer from the allegations of the Complaint that all actions
taken by Bohike Defendants were to benefit BIA, and that the individual Bohlke Defendants have
no independent interest in the sale of jet fuel apart from their relationships with BIA.

{20 In presenting a claim against a corporate officer alleging tortious interference with a
contractual relationship of the corporation, a plaintiff must plead and prove that the officer acted
outside the scope of employment. “Generally, if an act is connected either directly or indirectly
with the business of the employer (designed to benefit the employer's business), that act is
conducted within the scope of employment.” Gruhike v. Sioux Empire Fed. Credit Union, Inc.,

, q 14 (S.D. 2008). Here, the nature of the relationships among the Bohlke Defendants,
the scope of the authorization of the individual Bohlke Defendants to act on behalf of BIA, and
whether the individual Bohikes acted within that scope are facts not addressed in the Complaint.
At this stage of the proceedings, with no recitation of facts in the record to put into full context the
allegations of the Complaint, dismissal of the claims against the individual Bohlke Defendants is

premature.
fsland Airlines, LLC et al. v Bohike Airlines International et al: SX 16 CV 404
Memorandum Opinion and Order 

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721 A separate issue exists as to whether Plaintiff Osthaug has stated a claim against Bohlke
Defendants upon which relief may be granted. The sole member of a limited liability company is
an agent of the company for the purposes of its business. See 13 V.1.C § 1301 (a). Plaintiff Eagle
brings its claim against Defendants for interference with its business relationship with VIPA, and
Plaintiff Island Airlines presents a similar claim conceming its relationship with MASA. Plaintiffs
do not allege that Osthaug acted in any capacity other than as the sole member of each company.
Complaint, <{ 2, 3. The Complaint alleges that Osthaug invested funds and solicited and received
funds from investors, not on his own account, but in furtherance of Eagle’s hangar construction
and anticipated fuel concession from VIPA. /d. 7 49. Plaintiffs allege economic losses and Osthaug
claims that he suffered mental anguish and loss of enjoyment of life. /d. 4 61. .

422 “The well-established general rule is that shareholders cannot pursue individual causes of
action against third parties for wrongs or injuries to the corporation that result in the diminution or
destruction of the value of their stock.” Barger v. McCoy Hillard & Parks, 

(N.C. 1997). Two exceptions to that general rule permit a shareholder to sue for injuries: (1) where
a special duty exists, such as by contract, between the third party wrongdoer and the shareholder;
and (2) where the shareholder suffered an injury separate and distinct from that of the corporation
or other shareholders. /d. at 658-59 (citations omitted).

123 Plaintiff Osthaug makes no claim he has a special relationship with any Defendant
individually, apart from his status as the sole member of Eagle Aviation and Island Airlines. He
also claims no injury that he suffered personally separate and distinct from the alleged injuries to
the companies. Osthaug does claim to have suffered “mental anguish suffering and loss of
enjoyment of life” (Complaint, ] 61), but the torts of intentional interference by a third party with
existing contractual or prospective business relations “protect[] an anticipated economic advantage
to one’s business dealings from the interference of others.” Donastorg v. Daily News Publishing
Co., Ine., 63 V.L. at 280.

424 Plaintiff Osthaug claims no personal relationship with Defendants giving rise to a special
duty to him personally and claims no anticipated economic loss separate and distinct from those
of Eagle Aviation and Island Airlines. Rather, the economic loss Osthaug claims are the lost
economic advantages that may have resulted from the business relationships of the jet fuel

concession sought by Eagle from VIPA and Island Airlines’ anticipated relationship with MASA
‘sland Airlines, LLC et al. v Bohike Airlines International et al: SX 16 CV 404
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providing air ambulance services. These are precisely the economic injuries allegedly suffered by
the companies themselves, precluding Osthaug from presenting a separate and personal claim
against Bohlke Defendants. Rather, his recovery, if any, for economic loss may only be realized
as the member of the entities presenting the claims. Accordingly, the Motion will be granted as to
Plaintiff Osthaug’s claims of intentional interference with existing contractual relations and
interference with prospective business relations against all moving Defendants, and those claims

will be dismissed.

725 Count Il: Civil Conspiracy to Tortiously Interfere with Contractual and Prospective

Business Relations.

Under Virgin Islands law, a civil conspiracy consists of “an agreement or combination to
perform a wrongful act, or lawful act by unlawful means, that results in damage to the plaintiff...”
Isaac v. Crichlow, 63 V.1. 38, 64 (V.I. Super. 2015). Plaintiff alleges that “Defendants met with
each other, engaged in private conversations in person and by telephone calls, texts, emails, and
stolen confidential documents, to improperly interfere with Plaintiffs’ contractual relations with
MASA and future prospective business relations [with VIPA] as the second Fixed Based Operator
on St Croix and the only other seller of jet fuel on St Croix.” Complaint, ¥ 84.

426 Defendants argue that because the underlying torts of intentional interference with existing
contractual relations and prospective business relations are not viable, Defendants cannot be liable
for conspiring to commit such offenses. “There is no liability for civil conspiracy where there is
no liability for the act or acts underlying the conspiracy.” Isaac v. Crichlow, 63 V.I. at 65 (citation
omitted). However, Plaintiffs’ claims, other than those of Osthaug, have not been found at this
stage of the litigation to be without legal viability.

{27 Bohlke Defendants further argue that they are incapable of conspiring with each other as
they are legally the same legal “person” for the purposes of analyzing a conspiracy. Under the
intracorporate conspiracy doctrine, “an entity cannot conspire with one who acts as its agent,”
unless the agent is acting in a personal, non-corporate capacity. Guardian Ins. Co. v. Khalil, 

 (V.L. Super. 2012). Here, the Complaint does not allege that either of the individual
Bohike Defendants was acting in a non-corporate capacity or furthering any personal interests
other than those of BIA.
lsland Airlines, LLC et al. v Bohike Airlines international et al: SX 16 CV 404
Memorandum Opinion and Order 2620 VI Super 83U
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728 Yet, apart from the intracorporate relationship among the Bohike Defendants, the
Complaint alleges concerted action among Bohlke Defendants, VIPA, Mapp and Johnson. The
essence of a civil conspiracy is two or more persons agreeing in some form and acting on a desire
to accomplish an unlawful end. See Gov't Guarantee Fund of Republic of Finland v. Hyatt Corp.,

 (D.V.I. 1997). For the reasons stated above, the underlying claims against
the individual Bohlke Defendants will not be dismissed at this stage. The civil conspiracy count,
alleging that all Defendants acted in agreement or combination to perform the wrongful act of
interfering with the Plaintiff entities’ business relationships, resulting in damage to them may go
forward, and the Motion will be denied as to the claims of Eagle Aviation and Island Airlines, but
will be granted as to the claims of Osthaug on the same basis as the dismissal of his claims in
Count I.

(29 Count Ill: Conversion.

“Conversion is an intentional exercise of dominion or control over a chattel which so
seriously interferes with the right of another to control it that the actor may justly be required to
pay the other the full value of the chattel.” Chaput v. Scafidi, 66 V.1. 160, 195 (V.L. 2017) (internal
quotations and citations omitted). Conversion may be committed by intentionally engaging in any
of several types of acts, one of which is obtaining possession of a chattel from another by fraud.
See Ross v. Hodge, 58 V.1. 292, 308 (V.I. 2013).

730 Plaintiff Island Airlines alone makes this claim, alleging that Bohlke Defendants conspired
with Defendant Johnson to have him resign his Island Airlines employment and to illegally gain
access to Island Airlines’ confidential corporate records and information that he provided to
Bohlke Defendants and that was subsequently used on multiple occasions to contact MASA for
the purpose of attempting to have MASA transfer its Island Airways’ business to BIA. Complaint,
{ff 33, 35-36.

731 These allegations in the Complaint presented on behalf of Island Airlines are sufficient to
plead a claim of conversion against Bohlke Defendants, providing adequate notice of such claim
that Bohlke Defendants, in concert with Johnson, by fraudulent means intentionally gained and
exercised dominion and control over property of Island Airlines, seriously interfering with Island

Airlines’ right to control its property.
Island Airlines, LLC et al. v Bohike Airlines international et al: SX 16 CV 404
Memorandum Opinion and Order 2020 V1 Super 83U
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432 Bohlke Defendants argue that notwithstanding Plaintiffs’ allegations that Defendants
obtained and controlled of Island Airlines’ information, the Complaint does not allege that Bohlke
Defendants so seriously interfered with Island Airlines’ right to control the information in issue
that the claim cannot stand. Further, because there is no claim as to any valuation of the “property”
allegedly converted, and because Island Airlines has not adequately pled any basis for its claim
that the information was confidential as opposed to public information, Island Airlines’ conversion
claim must fail. All of these issues may ultimately prove dispositive on this count, but prior to
discovery and any factual record before the Court, the claim of Island Airlines, but not of either
other Plaintiff, alleging conversion against Bohike Defendants will not be dismissed on the
sufficiency of its pleading. To the extent that Count III seeks relief on behalf of Plaintiffs Osthaug
and Eagle, because the conversion claims relate to property of Island Airlines only, those claims

will be dismissed.

] 33 Count IV: Conspiracy to Commit Violations of Virgin Islands Antimonopoly Act 1t V.LC. $1501, et seq.

The Virgin Islands Antimonopoly Law states in part:

Every person shall be deemed to have committed a violation of this chapter who
shall: ...

(2) By contract, combination, or conspiracy with one or more other persons
unreasonably restrain trade or commerce; or

(3) Establish, maintain, use or attempt to acquire monopoly power over any
substantial part of trade or commerce of the United States Virgin Islands for the
purpose of excluding competition or of controlling, fixing, or maintaining prices in
such trade or commerce...

1i V.LC. § 1503(2), (3).

734 Plaintiffs allege that BIA has established and maintains monopoly power over the sale of
jet fuel in the St. Croix market of the Virgin Islands and has acted, in concert with Mapp and VIPA,
to exclude Eagle Aviation from obtaining a concession to sell jet fuel in St. Croix. Eagle asserts
that the actions of Bohlke Defendants, Mapp and VIPA violate the Antimonopoly Act by
attempting to exclude competition, thereby controlling the price of fuel in St. Croix.

{35 Defendants argue that because VIPA is neither a competitor nor a “person” under the Act,
Eagle’s claims that Bohlke Defendants conspired with VIPA must fail. Yet, Eagle claims that
Defendants conspired with Mapp, acting in his individual capacity (see Complaint, q 117), as well

as with VIPA to accomplish their monopolistic objectives. Further, VIPA, as a corporation, is a
fsland Airlines, LLC et al. v Bahlke Airlines International et al: SX 16 CV 404
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“person” for these purposes. (See 11 V.I.C. § 1504). By its authorizing statute, VIPA was created
as “a corporation having legal existence and personality separate and apart from the Government
and the officers controlling it.” (29 V.ILC. § 541(e)).

136 Plaintiffs allege that Bohlke Defendants’ concerted efforts, conspiring with Mapp and
VIPA, to exclude Eagle Aviation from selling jet fuel in the St. Croix market constituted an
unreasonable restraint on trade or commerce. By establishing and maintaining monopoly power
over the sale of jet fuel in St. Croix, Plaintiffs claim that Bohlke Defendants have conspired to
seek to exclude competition, to control, fix and maintain jet fuel prices in St. Croix in violation of
the Antimonopoly Act,

437 Defendants move to dismiss this count, arguing that, even accepting Plaintiffs’ allegations
as true, there are at least three jet fuel distributors in St. Thomas, such that BIA does not maintain
a monopoly in the Virgin Islands. Because the Antimonopoly Act proscribes monopolistic
practices in the territory at Sarge, the fact that jet fuel is available in the U.S. Virgin Islands, within
40 miles of BIA’s operation, means that as a matter of law there can be no finding of a violation
of the Act. As a practical matter, Defendants argue that no prospective customer is constrained to
purchase fuel from BIA, but rather can simply take the short flight to St. Thomas to avoid the
alleged higher BIA prices. Yet, the movants’ argument glosses over the statutory language that
makes it a violation to maintain a monopoly “over any substantial part of trade or commerce of
the United States Virgin Islands.” Even if jet fuel is available in St. Thomas with no more than
minor inconvenience to a customer, the St. Croix market certainly represents a substantial part of
the jet fuel trade in the Virgin Islands. In furtherance of the legislature’s purpose to promote
unhampered growth of commerce in the territory by prohibiting monopolistic restraints of trade
tending to decrease competition (see 11 V.LC. § 1502), the Act proscribes the maintenance of
monopoly power in any substantial part of Virgin Islands trade, even where the such trade
restrictions may not adversely impact the Virgin Islands as a whole.

738 Accordingly, accepting as true the allegations of the Complaint, at the Rule 12(b)(6)
Motion stage of these proceedings, Plaintiffs have alleged sufficient facts to show that the pleader
is entitled to relief for violation of the Virgin Islands Antimonopoly Act. Although only Eagle
Aviation alleges to be a potential competitor of BIA suffering a direct business loss under the Act

with regard to the sale of jet fuel, Island Airlines claims that it suffered losses also, as a consumer
tsiand Airlines, LLC et al. v Bohlke Airlines International et al: SX 16 CV 404
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foiled in its attempt to conveniently purchase competitively priced fuel on account of Defendants’
violation of the Act. Island Airlines’ claim on this count will survive Defendants’ Motion based
on allegations of the Complaint. Because the Complaint alleges concerted action by all Bohike
Defendants in violation of the Antimonopoly Act, the Motion will be denied as to all Bohlke
Defendants with regard to the claims of Eagle Aviation and Island Airlines. Plaintiff Osthaug
presents no such claim of loss as the result of any violation of the Act, and Defendants’ Motion

will be granted as to Plaintiff Osthaug on this count.

139 Count VI: Violation of Virgin Islands Unfair Trade Practices Act 12A V.LC. §101, et sea.
Plaintiffs allege that Bohlke Defendants’ sale of jet fuel to Plaintiffs at a substantially

inflated price constitutes an unconscionable trade practice. The Virgin Islands Unfair Trade
Practices Act prohibits as an unconscionable trade practice any act or practice in connection with
the sale of consumer goods or services that unfairly takes advantage of a consumer or results in a
gross disparity to a consumer’s detriment between the value the consumer receives and the price
paid. See 12A V.LC. § 101, 102(b).

140 By their Motion, Bohlke Defendants argue that Plaintiffs are not protected consumers
under the Act, which applies specifically and only to the sale of consumer goods, a category into
which jet fuel does not fit. By the statutory language, consumer goods are those goods “which are
primarily for personal, household or family purposes.” 12A V.LC. § 102(c). Plaintiffs suggest it is
proper to apply an expansive reading of those words. Because Island Airlines provides air charter
services and medical evacuation flights to consumers traveling for personal and family purposes,
including medical treatment, family visitation and shopping trips to purchase goods for their
households, its purchase of jet fuel to facilitate these activities brings these transactions within the
reach of the Act. Plaintiffs’ creative proposed application of the Act does not conform to the actual
words of the Act and, therefore, must fail.

{41 Plaintiffs further argue that Bohlke Defendants’ alleged false claims made to VIPA and to
FAA constitute a violation of the Act’s proscription against deceptive trade practices. The Act
defines a deceptive trade practice as including any false, falsely disparaging, or misleading
statement or representation made in connection with the sale of consumer goods or services, which
has the capacity, tendency or effect of deceiving or misleading consumers, ie. purchasers of

consumer goods or services. See 12A V.L.C. § 102(a), (d). Plaintiffs argue in their Opposition that
island Airlines, LLC et al. v Bohike Airlines International et al: SX 16 CV 404
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Defendants’ alleged false, disparaging and misleading claims to VIPA and FAA entitle them to
relief for damages resulting from such deceptive trade practices. Yet, the Complaint does not allege
that Defendants made any false claims to Eagle Aviation or any other prospective purchaser of
BIA’s jet fuel, or that statements Defendants allegedly made to VIPA and FAA deceived or misled
Eagle or any consumer. Rather, the false statements allegedly made related to the fitness of Eagle
to obtain the prospective certification as a fixed-base operator in St. Croix and Island Airtines’
improprieties in its operation. No allegations are presented rather that any false statements were
made in connection with the sale of consumer goods (a category that, as noted, does not include
BIA’s jet fuel), Because the sale of BIA’s jet fuel is outside the statutory protection offered by the
Virgin islands Unfair Trade Practices Act to consumers regarding consumer goods and services, the
Motion will be granted as to Count VI, which will be dismissed.

142 Count VIII: Defamation.

In the Virgin Islands, defamation consists of the following elements: (a) a false and
defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault
amounting at least to negligence on the part of the publisher; and (d) either actionability of the
statement irrespective of special harm or the existence of special harm caused by the publication.
Chapman v. Cornwall, 58 V.1. 431, 444 (V.I. 2013).

943 Plaintiffs allege that Bohlke Defendants repeatedly defamed Plaintiffs by making
knowingly false accusations to the FAA, U.S. Customs, VIPA and others. Specifically, Plaintiffs
allege that Defendants reported to the FAA that Island Airlines was conducting illegal flights and
acting suspiciously, charges that resulted in an investigation that was dismissed. Plaintiffs further
allege that Bohlke Defendants made a false report to Customs claiming that they had observed
suspicious activities at Island Airlines; and that they wrote repeated letters to VIPA Board
members making false allegations against Plaintiffs, for the purpose of preventing Eagle Aviation
from obtaining a jet fuel sales concession and interfering with Island Airlines’ ability to operate.

§44 Defendants assert that the Complaints allegations lack the factual specificity required for
pleading defamation claims, and that the alleged falsity of these offending statements is a legal
conclusion entitled to no presumption of truth. Defendants cite the lack of details set out in the
Complaint with regard to the person(s) who made the alleged statements, the date(s), form, and

specific content of the statements. They argue that the Complaint’s allegations are simply
tsland Airlines, LLC et al. vy Bohike Airlines international et al: SX 16 CV 404
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formulaic recitations of the elements of a defamation claim that do not give Bohlke Defendants
adequate notice of what statements the Plaintiffs are complaining. These deficiencies, the Motion
claims, require dismissal of the defamation count.

145 However, in this notice pleading jurisdiction, Plaintiffs need only present a short and plain
statement of their claim, which is deemed sufficient if it adequately alleges facts to put Bohlke
Defendants on notice of the claims brought against them. V.I. R. Civ. P. 8(a)(2); Mills-Williams v.
Mapp, 67 V1. at 585, The specificity sought by Defendants is available to them through discovery.
Thereafter, the truth or falsity of an alleged defamatory statement may generally be determined by
the factfinder, not by the Court as a matter of law.

{46 Defendants also claim that certain of the alleged defamatory statements must be accorded
absolute privilege, as with statements to law enforcement officials to report purported violations
of criminal law, See Mlaraza v. Hovensa, LLC, 

 (D.V.I. 2014) (citing
RESTATEMENT (SECOND) OF TorTS § 587 {1977)). Defendants argue that the statements alleged
are absolutely privileged, made to regulatory or law enforcement agencies. Alternatively,
Defendants claim that the statements in issue are conditionally privileged as statements made to
third party regulatory agencies charged with and having a common interest with Bohlkes in
maintaining the safety of airports and air travel in the Virgin Islands, under circumstances
reasonably leading Bohlkes to believe that the agencies were entitled to receive the information
conveyed. See id. at 605.

147 The Motion bemoans the purported insufficiency of the factual allegations supporting the
defamation claim set out in the Complaint. The determination of the issue of the validity of
Plaintiffs’ defamation claim cannot be made on Plaintiffs’ pleading without a factual record.
Whether alleged statements are false; whether they are defamatory; whether they were published
and not privileged; whether Defendants were negligent or otherwise at fault in making such
statements; and whether Plaintiffs suffered harm as a result are all questions of fact to be addressed
in the determination of whether Plaintiffs’ defamation claim can survive. It is premature to make
that determination at the pleading stage of this litigation.

148 Plaintiffs present their defamation claims without providing details, not only as to which
Defendant made what statement, when, and to whom, but also as to which of the Plaintiffs was

allegedly defamed. Allegations of the Complaint are uniformly lacking in specificity: Defendants
Island Airlines, LLC et al. v Bohlke Airlines International et al: SX 16 CV 404
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made knowingly false claims to FAA, including false claims that Island Airlines was involved in
an illegal charter (Complaint, 4 47); and that Island Airlines was conducting illegal flights (id. 4
51). Defendants made a false report to Customs, falsely claiming observation of suspicious
activities at Island Airlines (id. {5 57, 143). Defendants reported false claims to FAA that Plaintiffs,
including Island Airlines, had illegal flights and suspicious actions (id. J 142).
749 Atthis stage, the Complaint’s allegations of defamation are taken as true, and all reasonable
inferences that maybe drawn from those allegations favor Plaintiffs. The Complaint alleges that
Osthaug participated in the business operations of the Plaintiff entities. Because the alleged
defamatory statements relate to those operations and their propriety, it may be inferred that those
statements relate to actions of Plaintiff Osthaug. As such, it cannot be said at this stage of the
litigation that Plaintiffs, including Osthaug, who alleges personal damages, must be precluded
from moving forward; and each Plaintiff may attempt to prove individual claims of defamation,
and the Motion will be denied as to all parties as to Count VIEL.
450 Count X: Conspiracy to Violate 14 VLC § 461 to Access Computer for Fraudulent Purposes.
Plaintiffs allege that Bohlke Defendants and Johnson conspired to violate the provision of
the Virgin Islands criminal code that states:

(a) Whoever knowingly and intentionally directly or indirectly accesses or causes
to be accessed any computer, computer system, or computer network for the
purpose of:
(1) knowingly and intentionally devising or executing any scheme or artifice
to defraud;
(2) obtaining money, property, or services by means of false or fraudulent
pretenses, representations, or promises; or
(3) damaging, destroying, altering, deleting, or removing any program or data
contained in it in connection with any scheme or artifice to defraud, shall be
guilty of a felony and shall be subject to the penalties set forth in section 467
of this chapter.”

14 V.LC. § 461.

{51 Plaintiffs allege that Bohlke Defendants conspired with Johnson to hire Johnson away from
Island Airlines and to have him steal his former employer’s confidential corporate records and
information for the purpose of interfering with Plaintiffs’ contracts and prospective business
relations, They assert that Bohlke Defendants encouraged Johnson to access Island Airlines’

computers to obtain the confidential information to assist them in interfering with Plaintiffs’
sland Airlines, LLC et al. v Bohike Airlines international et al: SX 16 CV 404
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business, knowing that Johnson’s actions were a breach of his duty as a former Island Airlines’
employee.

752 Defendants note that a violation of the statute requires a showing of a fraudulent purpose
and asserts that Plaintiffs’ Complaint does not allege such a fraudulent purpose, and does not allege
that any fraudulent statements were made by Defendants, intended to defraud Plaintiffs. However,
Plaintiffs allege that Defendants knowingly conspired to access Island Airlines’ computers by
means of false pretenses for their own business advantage. Plaintiffs have pled sufficient facts to
allege that Johnson accessed Island Airlines’ computers under the false pretenses, after resigning
his employment and knowing that such access was no longer allowable. Plaintiffs allege that
Bohlke Defendants conspired with Johnson to achieve that unauthorized access to Island Airlines’
computers and information, setting forth a sufficient statement of the claim to show that Island
Airlines is entitled to relief. As such, the Motion will be denied with respect to Island Airlines’
claim that Bohike Defendants conspired with Johnson to violate 14 V.LC. §461. Neither Plaintiff
Eagle Aviation nor Plaintiff Osthaug has presented such a claim and the Motion will be granted as
to Count X against those Plaintiffs.

CONCLUSION

{53 In reconsidering Bohlke Defendants’ Rule 12(b)(6) Motion, all material allegations of
Plaintiffs’ Complaint are accepted as true and construed in the light most favorable to Plaintiffs,
in whose favor all reasonable inferences are drawn. The Complaint will not be dismissed if it
presents a short and plain statement of Plaintiffs’ claims showing they are entitled to relief, and
adequately alleges facts to put Defendants on notice of the claims brought against them. Applying

this standard, for the reasons set forth above, it is hereby

ORDERED that Defendants’ Motion to Reconsider will be GRANTED in part and
DENIED in part, as follows:

Count I: The Motion is granted as to claims of Plaintiff Osthaug against Bohlke
Defendants, which are dismissed; otherwise, the Motion is denied as to Count I;

Count Ii: The Motion is granted as to claims of Plaintiff Osthaug against Bohlke
Defendants, which are dismissed; otherwise, the Motion is denied as to Count II;

Count III; The Motion is granted as to claims of Plaintiff Eagle Aviation, LLC and of
Plaintiff Osthaug against Bohlke Defendants, which claims are dismissed; otherwise, the Motion
is denied as to Count Lil;
‘sland Airlines, LEC et al. v Bohike Airlines International et al: SX 16 CV 404
Memorandum Opinion and Order 

Page 17 of 17

Count IV: The Motion is granted as to claims of Plaintiff Osthaug against Bohlke
Defendants, which are dismissed; otherwise, the Motion is denied as to Count IV;

Count VI: The Motion is granted as to all claims and Count VI is dismissed;
Count VII: The Motion is denied as to all claims in Count VIII; and

Count X: The Motion is granted as to claims of Plaintiff Eagle Aviation, LLC and of
Plaintiff Osthaug against Bohlke Defendants, which are dismissed; otherwise, the Motion is denied
as to Count X. It is further

ORDERED that Defendants William Bohlke, Jr, William R. Bohlke and Bohlke
Internationa! Airways, Inc.’s shall each file their Answer to Plaintiff's First Amended Complaint

within 14 days from the date of entry of this Order. It is further

ORDERED that rulings on Plaintiffs’ Motion to Enter Scheduling Order; Plaintiffs’
Motion to Compei Answers to Written Discovery; and Plaintiffs’ and Defendants’ VIPA and Mapp
Joint Motion for Dismissal Pursuant to Rule 41(a)(2) will be entered when the pleadings are

complete.

DATED: September / 6 , 2020. CS se M Oe

DOUGLAS A. BRADY, JUDGE

ATTEST:

TAMARA CHARLES
Clerk of the Court

Boa
Court Clerk Superviser_27~
ieee

Distribution List:

Lee J. Rohn, Esq.
Charles E, Lockwood, Esq.
Jennifer P, Brooks, Esq.

By: