SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
JFROME NIATTHEW a,
PLAINTIFF,
"0
SK 13 CV 499
R&M GFNFRAL CONTRACTORS, INC,
HECTOR ROSARIO, AND JACQUELINE
NIERCFDES,
DEFENDANT?
ORDER
AND NOW in accordance with the Memorandum Opinion of even date it is hereby
ORDERED that the Plaintiff s Motion for Reconsideration is GRANTED IN PART,
DENIED IN PART it is further
ORDERED that the Plaintiff tile and serve a motion to amend accompanied by a proposed
amended complaint with the Memorandum Opinion within FOURTEEN (14) DAYS Upon approval
of the proposed amende complaint by the Court the Defendants will haw: an additional FOURTEEN
(14) DAYS to file an amended answer
ku—
DONE and so ORDERF D this 42 day of March 2020
Tamara Charl a HAROLD W L WILLOCKS
Clerk of th f. u t z / ' esiding Judge of the Superior Court
By ‘- 1 F , A; __ ’1 .r
f ’ A
Dated ‘ on
if I L a
SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
JFROME MATTHEWS,
PLAINTIFF,
\ SX 13 CV 499
R&M GENFRAL CONTRACTORS, INC, Cite as 2020 VI Super 033
HFLTOR ROSARIO, AND JALQLELINF
NIERCEDEQ,
DEFENDANTS‘
FOR PUBLICATION
Appearances
JULITA K or LFON, ESQ '
Julita de Leon PLLC
F0; Plamwj‘
K GLENDA CAMERON, ESQ
Law Offices of K G Cameron
For Defendants
MEMORANDUM OPINION
WILLOCKS Presiding Judge
fill THIS MATTER is before the Court on the Plaintiff’3 Motion for Reconsideration of the Order
of October I9 2018 Dismissing the Plaintiff s Motion for Leave to Amend the Amended Petition
(hereinafter Motion for Leave to Amend ) and Granting Defendants Motion to Discharge and/or
Remove L15 Fem/ens (hereinafter Motion to Discharge Notice ) The Motion for Reconsideration was
filed November I? 2018 The Defendants filed an Opposition on December 4 2018
' At the publiLation 0t this opinion Attomcy (it. Leon has filed a Motion to Withdraw as Plaintiff s counsel
Matrhensr R&M (renew! (01mm mm [m 2020 V1 Qupcr 0W
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MEMORAlNDLM OPINION
Pagc 2 01 I7
BACKGROUND
A Leave to Amend
‘112 On July 14 2016 the Plaintiff moved the Court for a second amendment to the Amended
Petition (hereinafter the Amended Complaint ) In spite of the first amendment in 2015 the Plaintiff
wanted a second amendment to add facts that he did not know about earlier and to add two [sic]
additional counts that are consistent with existing facts (Mot for Leave to Amend the Amended Pet
3 )The Plaintiff alleged that the additional facts are curative and that the additional claims rely on
facts already pleaded in the [Amended Complaint] (Id ) The claims to be added were conversion
unjust enrichment and breach of the duty of good faith and fair dealing (Id at 4 ) The Plaintiff went
on to state that because the new claims arise out of the identical operative facts as the initial Petition
the amendment does not substantially change the theory on which the case has been proceeding nor
would Defendants be required to engage in significant new preparation of this case for trial (Id )
‘JB In its Order dated October 17 2018 the Court denied leave fox a second amendment because
the Plaintiff gaVe no indication of the nature of the facts that were allegedly recently disc0tered and
because the claims for conversion unjust enrichment and breach of the duty of good faith and fair
dealing could and should have been included in the Plaintiff s first amendment (Order of the Court
at 2 (Oct 17 2018)) The Court determined that an additional amendment to the complaint would
cause discovery delays and that the Plaintiff s new claims should have been brought when he was
given the opportunity to do so in 2015 given their basis in facts that were admittedly already in his
knowledge (Id)
(114 The Plaintiff asserts that the Court misapplied Rule 15 of the Virgin Islands Rules of Civil
Procedure and erroneously determined that an additional amendment to the Amended Complaint
would cause undue delay (Mot for Reconsideration 1 2 ) According to the Plaintiff the need for
clarification arose from facts that Plaintiff acquired during the course of discovery {and} the additional
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MEMORANDUM OPINION
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counts arose from allegations that were previously stated but became clearer with the advent of the
additional facts (It! at 2)
(115 The Plaintiff argues that the rule allowing amendment of a complaint is narrow and that the
Court 3 ruling is contrary to the plain language and purposes of Rule 15 and contradicts the relevant
case law all of which require this Court to grant leave freely when justice so requires (Id at 3
4 ) According to the Plaintiff despite the delay that amendment will cause there is no prejudice to the
Defendants and the Plaintiff should not be penalized for a lack of ruling on the Motion for Leave to
Amend for two years after it was filed (Id at 4 ) The Plaintiff also claims that the Defendants knew
of the additional claims once the Motion for Leave to Amend was filed and could have conducted
discovery appropriately since written discovery did not end until January 20l8 (Id at 4 )
‘1[6 The Plaintiff further alleges that the Court misread the Motion for Leave to Amend and
disregarded the redlined version of the proposed second amended petition that the Plaintiff filed
causing the Court to determine that the Plaintiff had not indicated what additional facts may be
included (It! at 3 ) Upon further review the Court notes that the Plaintiff submitted a redlined version
of the proposed amendment on July I4 2016 The Court has compared the proposed amendment to
the Amended Complaint of 201 S and noted the relex ant differences discussed in more detail below
317 Another of Plaintiff’s arguments is that the new claims are not new changes per se but rather
new theories of recovery made clear by discovery (Id ) Additionally the Plaintiff states that a
review of the case relied upon by the Court confirms that the undue delay determination focuses on
the length of the time that has passed since Plaintiff filed his complaint (Id (citation omitted»
However the Plaintiff then states that no consideration was given to the two year delay in addressing
the Plaintiff s motion to amend [n]or was there any consideration given to the fact that this was the
second time that Plaintiff was requesting permission to amend his complaint and the request came
during discovery (Id at 6) The Court is uncertain whether these statements are contradictory
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MEMORANDUM OPINION
Paar. 4 01 17
regarding the undue delay analysis or whether the Plaintiff believes that a two year delay in ruling on
the motion somehow makes it more viable Court will assume for the sake of argument that the Plaintiff
believes the Court s decision to deny an additional amendment was based on the length of time
between the filing of the proposed second amended petition in 2016 and the Court 5 ruling in 2018
118 In response the Defendants note that the Plaintiff s initial complaint as well as the Amended
Complaint were filed with the assistance of counsel though the Plaintiff attempts to give the
impression that he 1acked counsel entirely from 2013 to 2015 (Opp n 6 ) The Defendants also argue
that the allegation that the Court improperly considered the burden to itself as undue is misguided
because pursuant to TOUSS‘UIIZI 1 Stewart 67 V I at 946 47 delay in seeking an amendment is undue
when it places an undue burden on the trial court (Opp n 7 ) The Plaintiff s allegedly new facts and
claims also could have been brought at an earlier date and these facts were not cited in the Motion for
Leave to Amend or in the present Motion to Reconsider (1d at 8 ) The Defendants indicate that a
redlined proposed amended complaint does not appear on the record with exception to the one filed
with the Amended Complaint (Id )7 The Defendants further argue that the Plaintiff explicitly states in
the Motion that his Amended Complaint and the proposed second amended complaint are based on
the same factual allegations meaning that amendment is not necessary or is untimely (It! citing Mot
at 6 ) Finally the Defendants assert that the new claims are barred by the doctrine of futility (Opp n
9J
B Release of LlS Pendens
({[9 Prior to commencing this action the Plaintiff placed a Notice of Liv Pendem upon a parcel of
real property owned by Defendant Mercedes In an order dated October 17 2018 but separate from
that denying leave to amend the Court ordered the notice released because it found no indication in
the Amended Complaint that any of the Plaintiff‘s claims affect the title of Mercedes property (Order
7 Here the Court again notes that a redlined proposed second amended petition was filed with the Motion for Lease to
Amend on July 14 2016
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MEMORANDI M OPINION
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of the Court Granting Mot to Discharge 3 4 (Oct 17 2018)) The Plaintiff argued against discharging
the notice of [IS perm/ens on the grounds that he has a sufficient legal interest in the property because
of his allegations that profits of R&M General Contractors Inc were used to purchase various real
property on St Croix and in the Dominican Republic (Pl ’s Opp n to Mot to Discharge 3 (May 25
2017)) The Plaintiff also argued that the claims brought in his proposed second amended petition
which the Court did not approxe constitute an interest in the property because the claims iniohe the
equitable recovery principles of unjust enrichment and constructive trust (See “I at 4) The Court
considered the Motion for Leave to Amend immediately prior to the Motion to Discharge and both
orders were signed and entered the same day Since the Court denied the Motion for Leave to Amend
the Court did not consider the argument pertaining to the equitable remedies in the proposed second
amended petition (Order of the Court Granting Mot to Discharge at 2 )
([110 According to the Plaintiff the Court s simultaneous ruling created an injUstice to the Plaintiff
(Mot 6 ) The Plaintiff states that because the Motion for Leave to Amend was pending for nearly a
year before the Defendants filed the Motion to Discharge it was unclear whether the amended
complaint was the operative complaint (Id at 7 ) The Plaintiff further states that the Court should
have granted Plaintiff his motion for leave to amend and then decide [sic] the Defendants motion to
discharge the [is perm/en [sic] (It!) This is in fact what the Court did though both rulings were
entered the same day
‘1“ i In the Opposition to the Motion for Reconsideration the Defendants assert that the Plaintiff s
complaint regarding the [15 pendants amounts to no more than mere disagreement with the Court 5
interpretation of the law (Opp’n at 10 citing In re Estate ofMelc/zzor 2012 VI LEXIS 73 at *9
(V I Super 2012)) The Defendants state that the Plaintiff does not reference a legitimate reason as
outlined in Rule 6 4 of the Virgin Islands Rules of Civil Procedure for the Court to reconsider its
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position (Opp n at 10) For the purposes of this Motion the Court will assume that the Plaintiff’s
Motion is based on a clear error of law
LAW
(1112 A motion to reconsider must be based on one of four principles 1 ) a change in controlling law
2) availability of new evidence 3) the need to correct a clear error of law or 4) failure of the court to
address a specific issue that was raised by a party prior to a ruling V I R Civ P 6 4 Here the Plaintiff
alleges that the Court made errors of law It is appropriate to grant a motion for reconsideration based
on error of law when the initial decision overlooked dispositive factual or legal matters presented to
it Smith 1 Law 0171(0) of Karin A Bent P C 2018 V I LEXIS l3 >r16 (V I Super Ct 2018)
(citing 0 Neal 1 PMST LLC 2012 V I LEXIS 62 (V 1 Super Ct 2012)) Furthermore when
assessing these types of motions for reconsideration the Court looks for the moving party to offer the
specific legal authority it claims the Court either failed to apply correctly or failed to apply in totum in
its original decision Smith 2018 V I LEXIS at *16 (citing Jefielson 1 (”wide Bax Resort
Condwnmmm Ass n Inc No 2010 97 2010 U S Dist LEXIS 146841 *4)
DISCUSSION
A Leave to Amend
(1113 The Plaintiff s Motion for Leave to Amend was made pursuant to Rule 15 of the Federal Rules
of Civil Procedure prior to the adoption of the Virgin Islands Rules of Civil Procedure in March 2017
Rule 1’5 of the Virgin Islands Rules of Civil Procedure is substantially similar or identical to Rule 15
of the Federal Rules of Civil Procedure Pursuant to Rule 15 amendments made before trial and which
cannot be made as a matter of course require the written consent of the opposing party or leave of the
Court V IR Ci» P [5(a)(2) The court should freely give leave whenjustice so requires Id Under
this standard amendment should be allowed in order to provide an opportunity to have any requests
for relief considered on the merits if the assertions in the proposed amendment are the proper subject
for relief Toussrantr Steward 67V! 931 944 (VI Sup Ct 2017) (discussing SuperiorCourt Rule
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MFMORANDUM OPINION
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8 which also indicates amendment should be permitted when justice so requires ) More succinctly
when the pleading presents a proper claim for relief leave to amend should be freely given Id
(“14 Although the standard allowing amendment when justice so requires is extremely liberal and
strongly favors the granting of leare to file an amended pleading the trial court has discretion to deny
leave to amend due to reasons such as undue delay bad faith or dilatoriness repeated failures to correct
any deficiencies in the pleading futility of amendment undue prejudice to the [non ]moving party
etc Toursamr 67 V I at 946 (citations omitted) Accordingly the Court will undertake a three prong
analysis 1) whether the proposed claims are proper claims for relief 2) whether the Court has
discretion to deny lane to amend and 3) whether the Court 5 discretion was abused in denying leave
to amend
l The Plaintiff s proposed claims for conversion and unlust enrichment are not proper claims
for relief
([[15 A proper claim for relief is a claim upon which relief may be granted and is not futile Manure
r Hers OI] Virgin Islands Corp 69 V I 519 S28 29 (VI Super Ct 2018) lfthese are proper claims
for relief then the liberalin of Rule 15 will apply
(I) Come: mm
‘lll6 The Plaintiff s first additional claim is for conversion a tort claim As put in Pappar t Hotel
on the Cm Time Sharing Assm ration 69 V I 7r (V I Super Ct 2015)
[c]onve1sion 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 Thus comersion consists of the
wrongful exercise of dominion or control Over the property of another in a manner
inconsistent with that of the owner s rights Also the essence of conversion is not the
acquisition of the property rather it is the wrongful deprivation of that property
Consequently the tort of conversion constitutes the exercise of wrongful dominion and
control over the property to the detriment of the rights of its actual owner It is
uncontroverted that money which is personal property may be the subject of a
conversion
69 V I 3 (citations omitted)
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MEMORANDUM OPINION
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$117 Though by definition conversion would generally be appropriate where a party has claimed the
loss of control of money to their detriment it cannot be a proper claim of relief because it is barred by
the gist of the action doctrine
The gist of the action doctrine is designed to maintain the conceptual distinction
between breach of contract claims and tort claims by precluding plaintiffs from
recasting ordinary breach of contract claims into tort claims The difference between
contract and tort claims [is] as follows Tort actions lie for breaches of duties imposed
by law as a matter of social policy while contract actions lie only for breaches of duties
imposed by mutual consensus agreements between particular individuals
Pollara r Chateau St Clair LLC 2016 VI LEXIS 49 J‘22 23 (V1 Super Ct 20l6) (adopting the
gist of the action doctrine by Banks analysis)
3118 The gist of the action doctrine bars tort claims
(I) arising solely from a contract between the parties,
(2) where the duties allegedly breached were created and grounded in the contract itself
(3) where liability stems from a contract or
(4) where the tort claim essentially duplicates a breach of contract claim or the success
of which is wholly dependent on [the] terms of a contract
VI Port/lurk r Cal/Mood 2014 V I LEXIS ll l4 (V I Super Ct 20l4)
‘lll9 In this case the cause of action sounds in contract and the Plaintiff s claims are all based on
the alleged breach of the agreement that he would ICCClVC forty percent of company earnings (See
generally Amended Complaint and PI s proposed second amended complaint ) The conversion claim
and the duties and liabilities claimed by the Plaintiff all arise from the contract Therefore the
conversion claim is essentially a duplicate of the breach of contract claim which cannot succeed on its
own and is therefore not a proper claim for relief
b ) Breach of the Dun of Good Faith and Fan Dealing
$120
lender the duty 0! good laith and 3 iii dealing may contract imposes upon each party
{duty of Good with and flirdcaling in its performance and its enforcement Good laith
means trithlulness to an agreed common purpose and consistency with the justified
expectations of the oter part) it LXLludes a \dllLlV of ty pes of condtrtt LlldrlLlLlllLd
Matthew 1 R&M Geneva] COMUG’A’IOH 1m 2020 VI $1er on
ex 20H CV 499
MEMORANDUM OPINION
Fag; 9 0t 17
as inmlxino bad with News; titty \iolatc tommunit) sittndtttds at (hum) fdiamss
0t chiSOfldbiLnth
(Handrail [its (a i [Omit] 63V] 1 21(V] Slile'Cl 201")
(1121 Hum tin Pi 11min has 10de bunch 01 with at slamming Item {in DdLmEmIs fiiillh. to
shit; tin procuds 0i in; mm: Ming busimss Sim; t: duty of good idilh 1nd fair dc flinty maths to
was contract [in tumult [Emmi £00500!th a mops; Liaim to} Mid
c) Unjust Enrtclmieni
Amust 0! nation tut quantum mum: dist) know: as tiniustmrithtmnt “in main nil)
“L in a Last “but [In ddLnddnt nuiuls} somLthina of \niiilt. to which it: is not
mlitELd 1nd which in shtmEd Imam to tin piaintiff Walk“ 1 “aims 3 (‘1 (i\
M) 2010 0040 VI ZOHVH 168““) It j>(VI Apt 28 20M)(quotino
Maw t Morales 57 V i 627 635 I19 (V i 2013)) we also I limit V Fulfil/a (up 3
Oman has [In Holding ”C (it No 9 60 20HWI i7i087 it 2(i)Vl Jm it)
20H} (unpubEishLd) ( Quantum muuit is {in twin!) to: a quasi with 1U with} a
than), 0! uniust Lnrichmant it is not a in; st tndim luv 1| litany ) i niust minimum
is an qulildbifi. quasi LUINEdLl was; of mien imposinq liability “hLiL [hka is no
mtoruablL LtmlldLE batman (ht. ptutits but Rink». diLEdlLS that “It. pfaintiit ”an
wmputs‘ttion to: SLIWLLS punide (1m (011mm Q] («mime (nn 1 J Roland
Dasha I] 6: Sum [in 7-17 A 2d 600 607 (Md 2000)(quoting Dunnat rile t Mt ( mmuk
at; (a 2i i Supp 2d 527 $35? (I) Md ”98”
BtLduBt. uninst unithmuat is an LL]lEiIdbit. ILde) it iii“ nil thillildbik tannins is
inappioptiak “hm. a but lama) is atttilttbh. See Mitsulmlu Int! (mp ‘l ( animal
1: ml: Sale 5 NE 1d 1507 I318 (E HE} Cit 1994){ It is aximnatit Eh It Lquittbk Riki
is only M ‘10th “in“. than is no (ELiquidk tummy at in“ ) we gcnualh I DAN
HOBBS REVIEDII S 750 $2 807 if (2d Lt] 1993’) DBL to this. and» til Ibiiit) of
ultlitabk ILInLdiLh Man a itgai Itflkd}; is tuttitdhit my); Omani In!» is thtt no
[aquitabitl quasi communal claim can mist “but .1 LOHIIdLl mists humus} {ht pdiEiLs
umLunnw tin. s um subiut math: on “Smith [In qu tsi Lonltactudi Lluim usts shut
lam! mmdits an .mtildbkt to a plaintiffi in a bunch 0! Leanna action ( 1m ( 0msz
1;] (“mime (mt 747 A ”a! at 607 This (Marius know] as [ht haunt by “mum
wk is bdsui on Elk plinciplt that punks in L0fllidLllldl with). at; not uttitlLd to
tilt, lLflILdiLS ttxttilahlt [fluid a itidiLittil) imposLd quasi LOHIldLl humus. tin. turns
of that agiumant txprtss and impikd doling that rLspLLtiu iiohts (1min and
prutations [um/t V Pollam (up 20! 3 WI l7l087 at 2 (quotino Delta [let \
Bugs Cit App I\()2()06 0104 20!] W1 446%”IE it 3 {DV¥AppDi» Supt 22
201E); ALLOIdiW‘lV in] Liaim i0: uniust unithnknt cannot stand v» has an pruss
tontraLtuai winning!“ insts bLtMLLn {hL pattius Bade! (quite! (fit SHIN”!!! 1
[cl/nines 517 l\ E 2d I216 1219 till App Ct E987) a“ (rim My”: i Allumm Prod
(a 73 F 1d 779 786 (8th Cir 1996) ( Mummy “but in pruss LODBaLI LXists
bLtVsLUI {ht palms unjust minimum is not d\ aiitibit. as a mums 0| ItLOV my )
Maithensr R&M (161161111 Conn-cu tots Inc 3020 V] Super 033
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MEMORANDUM OPINION
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Caruumum 62: Rate: (mp 1 Bantu Popular tie Prtwto Rim 6l V! 247 2‘31 (V l Sup Ct 20H}
(lootnotcs omitted)
3&2 like Lonxcision tiniestenrichmentisnotapiopci claim lot and Thotmhthe Defendants m 1}
[we united something ofmluc (e g money or property ) to nhichthcy are “OILIIIlULd the Plaintiff s
cause oi action is in contract him not quit,» lhc Plaintiff aliens the existence of a contract new an
the parties which demands th it the HALIHILS of tin~ business be ditidcd to”) percent to the Plaintiff
kitty pencil! to Delcndant Rastuio and twenty percent to [)LiLi‘tddnl Muccdcs (Amended Compl
(1110) As per the Plaintiff s proposed second intended compile}: Defendants h or. failed to sin
Piaintiit his 40% and retained Plaintill s 40% for Elicmschcs As a result Detendttnts hart been
uniustly enriched at [he expu‘tsc oi Plaintiff (Pl s Proposed Second Amended Vctilied Petition at W
82 84} Since the Pl tintiil h is lilUde a riol ition oi LON“ let that is a proper Icmcd) at l1“ 1nd to
brim? it dupiicatc. claim in equity such as unjust enrichment is prohibited in this matter [niust
enrichment is thclcimt not lplt){)ci cl rim tor iciiei
2 The Court can exercise its discretion to deny leave to amend because of undue {May and
dilatoriness
$23 As per the above discussion only one of the Plaintiff s three proposed claims is a proper ciaim
for relief As such the Court is not required to give leave to include the claims for conversion and
unjust enrichment With regard to breach of the duty of good faith and fair dealing the Court 5 next
inquiry is whether it has discretion pursuant to the factors outlined Tousrainr to deny leave to amend
in spite of the general liberaiity of Rule IS
5B4 The Court may consider the following non exclusive factors in exercising its discretion to deny
amendment to a pleading undue delay bad faith or dilatoriness repeated faiittres to correct any
deficiencies in the pleading futility of amendment undue prejudice to the [non imoving party etc
Toussamt 67 V I at 946 (citations omitted)
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MFMORAINDUM OPEN ION
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The passage of time alone is not undue delay Delay in seeking to amend a pleading
becomes undue when allowing the amendment places an unwarranted burden on the
trial court Whether allowing an amendment to a pleading will unduly burden the trial
court involves consideration of the number of opportunities to amend that have been
granted by the trial court the reasons for and the purposes of prior amendments the
stage of the litigation and other appropriate factors relating to the trial court s
management of the case specifically and its docket and procedures generally Id at 946
47 (citations omitted
(“2‘5 In its ruling of October 17 2018 the Court denied leave to amend because of undue delay (See
Order Denying Leave to Amend at 3 Oct 17 20l8) The Court noted that the Plaintiff had already
had an opportunity to amend and that the case had progressed so significantly that the inclusion of
additional claims would unnecessarily postpone trial (Id ) The Plaintiff stated in his Motion for Leave
to Amend and in the present Motion for Reconsideration that the new claims are based on facts
previously known (Mot to Amend at 3 Mot for Reconsideration at 5 6 ) He also alleges that the new
claims do not substantially alter the theory of recovery (Mot for Reconsideration at ‘3 ) Since two of
the three claims are not even viable the Court has to agree that the theory of recovery is not
substantially altered The only proper claim for relief is breach of the duty of good faith and fair
dealing and that is already implied in contract
([[26 In fact for each of the new claims the Plaintiff essentially reiterates that pursuant to the by
laws of the corporate agreement the Plaintiff has a right to forty percent of company earnings and that
the Defendants wrongfully withheld his portion to his detriment (Pl 5 Proposed Second Amended
Verified Petition W78 89) There are no new relevant facts stated by the Plaintiff that give additional
support any of the claims The most significant addition to the alleged facts that the Court can find is
the allegation that the Plaintiff was contacted by an employee of the Department of Licensing and
Consumer Affairs in 20] 2 regarding a complaint against the company and this contact alerted Plaintiff
to the Defendants alleged wrongdoing (Id at (H 15 I7 )
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(1127 Even though the Plaintiff has only amended the complaint once these alleged facts have been
known to the Plaintiff since 2012 and the Court is of the opinion that the proposed claims for
conversion and breach of the duty of good faith and fair dealing could and should have been included
in the 2015 amendment The Court finds undue delay and dilatoriness because each claim even those
which are not proper claims for relief could have been brought in the 2015 amendment Even a minor
amendment to the pleadings will require the Court to give the Defendants an opportunity to respond
which will stretch this case even further requiring changes to the joint scheduling order and to the
Court s calendar
‘1]28 The Court has also considered the other factors articulated in Tousscum and can find no
indication of bad faith or of repeated failure to correct deficiencies since this is not a matter of the
petitions being procedurally deficient but rather the Plaintiff seeking to make additional claims The
Court also cannot make a finding of undue prejudice to the Defendants because the Court would give
them the opportunity to respond to the amendment and to conduct discovery as necessary
(“29 With regard to futility the Court considers if the proposed amendment is frivolous would be
barred by the statute of limitations or would survive a motion to dismiss Abdallah 1 Abdel
Rahman 2015 VI LEXIS 102 *l? (VI Super Ct 2015) See Hart ogr United C021) 20]] VI
LEXIS 9‘5 10 (VI Super Ct 2011) (stating that [flutility refers to the complaint even after
amendment failing to state a claim upon which relief could be granted ) citing In re Burlington Coat
Farm/i Sec Ling I 14 F 3d 1410 1414 (3d Cir I997) As already established the Plaintiff s claims
for conversion and unjust enrichment are not proper They would not survive a motion to dismiss
because the cause of action does not support a quasi contractual claim like unjust enrichment and the
Plaintiff cannot merge tort claims with contract claims However breach of the duty of good faith and
fair dealing would survive because the second proposed amended complaint is well pleaded and the
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MEMORANDUM OPINION
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Plaintiff s alleged facts taken as true sufficiently support the inclusion of this particular claim In
addition Virgin Islands precedent makes clear that such a duty is implied in every contract
<H30 In sum the claims for conVersion and unjust enrichment are not proper claims for relief and it
would be futile to include them in the second proposed amended complaint Further though breach of
the duty of good faith and fair dealing is a proper claim to give leave to amend cause undue delay and
place additional burden on the Court The final question is whether in light of these circumstances
the Court abused its discretion in denying leave to amend
3 The Court did not abuse its discretion in denying leave to amend but will allow the Plaintiff to
include a claim for breach of the duty of good faith and fair dealing
€131 A trial court abuses its discretion when it acts arbitrarily or irrationally fails to consider
judicial recognized factors constraining its exercise of discretion relies on erroneous factual or legal
premises or commits an error oflaw Molloi I lndependeme Blue Crow ‘56 V I 155 168 (V I Sup
Ct 2012) quoting United States l Thompson Rii (we 56] F 3d 345 348 (4th Cir 2009)
$32 In this case the Court did not deny leave to amend arbitrarily or irrationally and provided
justification for its decision The Court noted in its ruling that leave to amend should be freely given
subject to the factors discussed above including undue delay For this reason the Court also did not
commit an error of law but rather exercised its sound discretion The Court also stated that the Plaintiff
did not give an indication as to the nature of the new claims and facts to be added to the complaint
Upon reView the Court has noted the differences between the Plaintiff 5 Amended Complaint and
proposed second amended petition and has found the changes to be minimal other than the inclusion
of the three new claims two of which are not proper claims for relief The Plaintiff does not add any
relevant supporting facts but merely restates those previously known
(H33 In light of all the circumstances it is apparent that the Court did not abuse its discretion and
though the Court admits that it did initially overlook dispositive legal matters presented by the
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Plaintiff namely that conversion and unjust enrichment are not proper claims for relief that oversight
did not harm the Plaintiff because to have considered the claims more thoroughly as done here would
not have been to the Plaintiff s benefit However having now reviewed the new claims and determined
that the only viable claim is for breach of the duty of good faith and fair dealing which should not
require any additional discovery on the part of the Defendants due to its implied nature the Court shall
allow the amendment as to that particular claim and give the Defendants time to respond to it The
Court will order the Plaintiff to submit a new proposed amended complaint in accordance with this
opinion that will be approved upon review
B Discharge of the Notice of Lrs Pendens
$4 The Plaintiff also requests that the Court reconsider its order to remove the Notice of L15
Pendent placed on a parcel of real property belonging to Defendant Mercedes The Plaintiff takes issue
with the Court s ruling because he believes that the Court’s simultaneous consideration of the Motion
for Leave to Amend and the motion to discharge the notice caused him prejudice (Mot to Reconsider
at 6 i The Court can think of no way in which the Plaintiff was prejudiced As the Plaintiff points out
the Court may consider motions in whichever order it chooses (Id ) Regardless the Motion for Leave
to Amend was considered before the Motion to Discharge
€135 Further the Plaintiff s opposition to the motion to discharge relied on the argument that his
proposed second amended compiaint gave him a legal interest in the property particularly the
allegation that company profits were used to purchase various real property However the property in
question was never identified in any version of the complaint The Plaintiff also asserts that his claim
for unjust enrichment and a request for a constructive trust in the proposed second amended complaint
constitutes legal interest in the property The Court wholly disagrees As already discussed at length
unjust enrichment is not a proper claim for relief upon a contract cause of action Ev en if it were proper
in this case the claim would still not affect title to any defendant s property
Matthews 1 R&M General COIIIHKIOIY [m 2020 VI guperms
SX 2013 CV 499
MEMORANDL M OPINION
Page l5 of l7
(1136 A notice of [is pendens is a notice that there is a court action affecting title to real estate or a
judgment requiring the execution of a conveyance of real estate See 28 V IC § [30 In other words
[a] notice of [is pantie/is makes the public aware that certain property is the subject matter of litigation
SBP I LLCt Family Flops Ca) 1171766”? LLC 20l0VI LEXIS 76 >‘3 citing Black sLaw Dictionary
at 950 (8th ed 2004) Thus [rs pendent is appropriate in cases such as those invoking an action for
specific performance to purchase real property declaration of the existence or extinguishment of an
easement appurtenant or interpretation of covenants that run with the land etc SBP I LLC 20l0Vl
LEXIS at ‘3 4 (stating that classic example where a notice of In pendens is warranted in is a case for
specific performance requiring the conveyance of property) citing Del Valle l Mortgage Bank of
Cali/bum: 2009 U S Dist LEXIS 105898 at ’25 (E D Cal 2009) Ross l Canada LIfeAtsurame
C0 1995 US Dist LEXIS 18623 at *5 (ED Pa 1995) E St CIoerem/z Club I Caube Isle 17
V I 119 l22 (Terr Ct I980) (finding that an easement appurtenant is incidental to any estate the
possessor of the dominant tenement may have )' Bcl of DIM l Como] Int 1 28 V I 57 7% (Terr Ct
I993) (finding that an unfavorable ruling regarding covenants that run with the land would be
prejudicial to successors in interest to property)
(H37 L15 pendens is not appropriate in the present contract dispute because whether the Defendants
breached the contract does not affect the title to Defendant Mercedes property EV en if the Plaintiff
receives a favorable judgment the Plaintiff will be entitled to monetary damages not equitable relief
in the form of conveyance of property Moreover the Court has given the Amended Complaint and
the proposed second amended petition thorough review and can find absolutely no reference made by
the Plaintiff to a constructive trust Ultimately whether the Plaintiff has requested a constructive trust
as a remedy is a non issue because his prayers for relief include any relief the Court deems appropriate
9138 The Plaintiff also asserts in the Motion to Reconsider that the time period between when the
motions to amend and to release the notice of [1s pendens were filed and when they were ruled on
Matt/reusr R&M General (01mm tors [m 2020 Vi Super 033
SX 2013 CV 499
MEMORANDUM OPINION
Page 16 of 17
prejudiced the Plaintiff because the Plaintiff thought he could rely on his proposed second amended
complaint to support his argument against discharging the notice (Mot for Reconsideration at 6 7 )
This argument is also unpersuasive The Court has already discussed how the proposed amendments
do not support the filing of a notice of [IS pendens Beyond that it is unreasonable for a litigant to
believe that an unapproved amended complaint is operative
it” In granting the Defendants motion to discharge the notice of In" pendens the Court considered
whether any of the Plaintiff s claims affect real property and found that they do not The Court also
noted thatjudgment would not be made hollow if the notice of [15‘ pendent was discharged because the
Plaintiff s potential recovery is not tied to any specific real property but rather to monetary
compensation in general The Court further reminded the Plaintiff that a favorable judgment would
give the Plaintiff the opportunity to file ajudgment lien against the property if necessary Finally in
requesting reconsideration the Plaintiff offered no legal authority that he claims the Court failed to
apply or apply correctly Thus the Court s ruling did not involve a clear error of law and the Court
will not reconsider its ruling
CONCLUSION
(“40 As discussed abore the Court has reviewed its denial of the Plaintiff” s 2016 Motion for Leave
to Amend and its grant of the Defendants 2017 Motion to Discharge With regard to the leave to
amend the Court has more thoroughly considered the Plaintiff 5 proposed changes and determined
that two of the three additional claims he wishes to bring are not proper claims for relief However the
Court has found that the claim for breach of the duty of good faith and fair dealing is proper and even
though the Court maintains its position that there was no error of law or abuse of discretion in denying
leave to amend will allow the new claim because to do so will not unduly burden the Defendants and
the time needed to fully respond to the amended pleading should be minimal
Mutt/mu r \ R&M Gemini (01mm tors 1m 2020 VI Quper 03?
SX 20H CV 499
MFMORAl‘qDUM OPINION
Page l7 of 17
‘114l With regard to the discharge of the notice of In pendens the Court will not reconsider its
position because [15 pendenr is not appropriate in a case such as this where the litigation does not affect
the title to real property In granting the discharge the Court has considered local jurisprudence on the
matter and is confident that it has not committed an error of law An order consistent with this opinion
is forthcoming
/
DONE and so ORDERED this [2 day of March 2020
ATTEST /’
Tamara Char}! HARD D W L WILLOCKS
Clerk of th ' / ; ' esiding Judge of the Superior Court
/ // / / ’2
By A/ / I/i
fCo r Clerk lpMSO \
Dated k A. 1‘ 2‘