SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
KENDALL MOTOO AKA KENDALL Civil No SX 2022 CV 199
MATOO
PLAINTIFF ACTION FOR DAMAGES
v
JURY TRIAL DEMANDED
LHUIS RIVERA MELENDEZ AKA LUIS
RIVERA MELENDEZ AND VI
ENTERPREISES INC D/B/A AVIS RENT A a ‘
CAR CITE AS 2022 VI SUPER
DEFENDANTS
Appearances
Beverly A Edney, Esq
Law Office of Beverly A Edney
St Croix, U S Virgin Islands
For Plaintiff
Ryan C Stutzman, Esq
CSA Associates, P C
St Croix, U S Virgin Islands
F0; Defendant VI Enterprises Inc
MEMORANDUM OPINION AND ORDER
WlLLOCKS Presiding Judge
1] 1 THIS MATTER came before the Court on Defendant VI Enterprises Inc M) a Avis Rent
A Car’s (hereinafter “VIE”) motion to dismiss for lack of personal Jurisdiction, insufficient service
of process, and failure to state a claim upon which relief can be granted, filed on July 27, 2022, in
which Defendant VIE specially appeared to “contest service and jurisdiction, and also the
sufficiency of the complaint (Motion 1 ) As of the date of this Order, Plaintiff Kendall Motoo
aka Kendall Matoo (hereinafter ‘ Plaintiff”) has not filed an opposition in response and the deadline
for Plaintiff to file a timely opposition has since passed
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BACKGROUND
1] 2 On June 2, 2022 Plaintiff filed a complaint against Defendant Lhuis Rivera Melendez aka
Luis Rivera Melendez (hereinafier ‘ Rivera Melendez”) and Defendant VIE in connection with a
motor vehicle accident that occurred on or about June 6, 2020 on St Croix, U S Virgin Islands
Plaintiff did not set forth any counts designating the names of the specific causes of action as
required under Rule 8 of the Virgin Islands Rules of Civil Procedure Nevertheless, based on the
allegations the Court deduced that Plaintiff alleged two counts of negligence against Defendant
Rivera Melendez '
1 3 On June 23, 2022, a proof of service for Defendant VIE was filed, showing that Plaintiff
served Honica Jeffers on June 22, 2022 in his attempt to serve Defendant VIE
I The complaint included
Countl
[0 The plaintiff re alleges paragraph nos 1 9 therein elbow and if fully reprinted thereat
ll The defendant LUIS RIVERA MELENDEZ operated his vehicle in a negligent and careless manner
which negligence and carelessness were the sole direct and proximate cause of the injuries suffered by the
plaintiff
12 As a result of the defendant 5 negligence the plaintiff has suffered and will continue to suffer great bodily
pain, mental and emotional distress, loss of income potential loss of enjoyment of life past, present and
future medical expenses
Count II
13 The plaintiff re alleges paragraph nos 1 12 herein above as if fully reprinted thereat
[4 The defendant LblS RIVERAL MELENDEZ operated his vehicle In a reckless and outrageous manner
which recklessness and outrageousness were the sole direct and proximate cause of the injuries suffered
by
the plaintiff
15 As a result of the defendant 5 negligent and reckless conduct the plaintiff has suffered and continue to
suffer great bodily pain mental and emotional distress, loss of income and income potential, loss of
enjoyment of life past present and future medical expenses
(Compl)
Plaintiff may have intended for his complaint to include different causes of action But alas Plaintiff failed
to set
forth any counts designating the names of the specific causes of action, and Plaintiff cannot and should not
expect the
Court to parse through Plaintiff‘s allegations decipher which causes of action are alleged, and determine
which facts
satisfy the elements of each The Court cannot do Plaintiff’s job for him Cf Joseph 1 Joseph 2015 V
I LEXIS 43
*5 (V I Super Ct Apr 23 2015) ( [Iln general, the Court will not make a movants arguments for him
when he has
MMwwm)
I
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1] 4 On July 27 2022 Defendant VIE filed this instant motion to dismiss for lack of personal
jurisdiction, insufficient service of process, and failure to state a claim upon which relief pursuant
to Rule 12(b)(2) (5) and (6) of the Virgin Islands Rules of Civil Procedure A copy of the affidavit
of Defendant VIE’s general manager Luis Mainardi, dated July 26, 2022, was attached as Exhibit
A to the motion
15 On November 2, 2022, the Court entered an order whereby the Court dismissed without
prejudice Plaintiff‘s claims against Defendant Rivera Melendez pursuant to Rule 4(n) ofthe Virgin
Islands Rules of Civil Procedure
DISCUSSION
1 Lack of Personal Jurisdiction and Insufficient Service of Process
1| 6 In its motion Defendant VIE argued that the Court lacks personal jurisdiction over
Defendant VIE due to insufficient service of process 3 Defendant VIE made the following
assertions in support of its argument (1) Plaintiff did not serve Defendant VIE in compliance with
Rule 4(h)(1)(A)(ii iii) of the Virgin Islands Rules of Civil Procedure3 to wit, Plaintiff served
3 Defendant VIE referenced PM Let mg 1 An 09 D01 ados Pueno RICO 1m , 2016 WL 1271024, *4 (D V I
Mar 30,
2016) Esta". ofSItepple t Bank ofNom Scotta 69 VI 700 725 734 (VI ”018)
‘ Rule 4(h) provides in relevant part
(h) Sewing a Corporation Partnership, or Association
Unless law of the Virgin Islands provides otherwise or the defendant waives service,
(1) a domestic or foreign corporation, or a partnership or other unincorporated association that is
subject to suit under a common name may be served
(A) in the Virgin Islands
(i) in the manner prescribed by Rule 4(e) for serving an individual or
(ii) by delivering a copy of the summons and of the complaint to an officer a managing
or general agent or
(iii) by delivering a copy of the summons and of the complaint to any other agent
authorized by appointment or by law to receive service of process and if the agent is
one authorized by statute and the statute so requires by also mailing a copy of the
summons and complaint to the defendant,
v I Clv P R 4(h)
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Memorandum Oplmon and Order
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Honica Jeffers, “who is an employee of International Rental and Leasing Corp ,
not of [Defendant
VIE] ” (Motion 2)‘ (ii) Honica Jeffers forwarded the summons and complaint
to Luis Mainardi,
the general manager of Defendant VIE (Id ); (iii) Honica Jeffers ‘ is not an officer,
manager, or
general agent of [Defendant VIE] and is not authorized to accept service on behalf
of [Defendant
VIE] ” (Id , at 3); and (iv) ‘ [S]ervice on V I E was not proper and the Court
does not have
jurisdiction over V I E ” (Id ) In an affidavit that was attached to the motion, Luis
Mainardi stated
that “as of February 2022, [Honica Jeffers] was no longer an employee of [Defendant
VIE]” and
that [Honica Jeffers] forwarded me a summons and complaint in the above captioned
matter on or
around June 22, 2022,” and Luis Mainardi included “a true and correct copy ’ of what
he received
from Honica Jeffers as Exhibit 1 to his affidavit (Mainardi Aff 111] 6 7 ) Exhibit 1 was
a copy of
the email from Honica Jeffers to Luis Mainardi dated June 22, 2022 at 5 32 p
m , with a copy of
the summons and complaint
a Standard of Review
1] 7 Rule 12(b)(2) and (5) of the Virgin Islands Rules of Civil Procedure allows
a party to
assert by motion the defenses of lack of personal jurisdiction” and ‘insufficient
service of
process” and move for dismissal VI R CW P 12(b)(2), (5) “Due Process
requires that a
defendant be given legal notice and an opportunity to be heard ’ Estate ofSkepple
v Bank ofNova
Scotza, 69 V I 700, 718 19 (V I 2018) The “service of process unless waived by a general
appearance is a prerequisite to the Superior Court obtaining personal Jurisdiction over
a
defendant McKen-ce v Hess 0:] VJ Corp 70 V I 210 215 (Super Ct March 6
2019) (quoting Ross v Hodge 58 VI 292 311 n 22 (VI 2013) (quoting Joseph
v Dally News
Pub Co Inc 57 V I 566 580 n 4 (2012)» see V I R ClV P 4(l)(1) ( Sewing
a summons and
complaint or filing a waiver of service satisfies the obligation of service of process sufficient
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Memorandum Opinion and Order 2022 VI SUPER
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to establish personal jurisdiction over a defendant (1) who is subject to personal jurisdiction
in
the Superior Court in the Virgin Islands; or (2) when authorized by statute ”) “While it is true
that
the plaintiff bears the ultimate responsibility to prove by a preponderance of evidence that the trial
court may exercise personal jurisdiction, including valid service of process, a party challenging
whether a plaintiff has complied with the applicable requirements for service must submit an
affidavit or other competent evidence showing that service in compliance with the applicable
rule
was never achieved, unless the facts in the record demonstrate a failure to make a prima facie
showing that service was accomplished ’ See Estate ofSkepple, 69 V I at 73l (internal quotation
marks omitted) ‘ In general, actual notice of a law suit is not a substitute for proper service and
absent proper service, a case must be dismissed for lack of personal jurisdiction over the
defendant Ross 58 V l at 310 (citation omitted)
b Analysis
1‘ 8 In this instance, there is no dispute that Defendant VIE is a corporation and Plaintiffserved
Honica Jeffers in his attempt to serve Defendant VIE According to Defendant VIE’s motion,
Honica Jeffers was not “an officer a managing or general agent” or “[an] agent authorized
by
appointment or by law to receive service of process at the time of service This is corroborated
by the affidavit of Defendant VIE 3 general manager Luis Mainardi Thus, given that Honica
Jeffers was not authorized to receive service of process for Defendant VIE under Rule 4(h) of
the
Virgin Islands Rules of Civil Procedure,‘ Plaintiff failed to successfully effect service of process
upon Defendant VIE via Honica Jeffers
4 See supta, footnote 3
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However, it is not in dispute that Defendant VIE received subsequent notice of this lawsuit
when Luis Mainardi, the general manager of Defendant VIE received a copy of the summons
and
complaint on June 22, 2022 at 5 32 p m via an email from Honica Jeffers While “[i]n general,
actual notice of a law suit is not a substitute for proper service,” sometimes actual notice may also
constitute legal notice In Estate of Skepple, the Virgin Islands Supreme Court instructed
that
‘ except in instances Ofconstructive service, the inquiry ofwhether a defendant's actual
notice also
constitutes legal notice is a flexible analysis requiring that the notice procedure employed
be
appropriate for the situation and interest(s) involved 69 V I at 728 The Virgin Islands Supreme
Court further instructed
In order for legal notice to comply with the requirements of due process and support the
exercise of personal jurisdiction over a defendant at the outset of a lawsuit considering
the totality of the circumstances the notice must be reasonably calculated to apprise the
interested party of the pendency of the case and afford the party a genuine opportunity
to
present the party's objections, such that the notice must reasonably convey all required
information and likewise afford a reasonable time for the party to make an appearance
and
present such objections Additionally, the service must be directed to those people and at
those locations known to, and reasonably discoverable by, the plaintiff, such that the efforts
at service demonstrate that the plaintiff was “desirous of actually informing the absentee
defendant
Estate ofSkepple 69 V I at 728 29
In considering the totality of the circumstances, the Court finds that the notice was
reasonably
calculated to apprise Defendant VIE of the pendency of the case and did in fact apprise
Defendant
VIE of the pendency of the case, and Defendant VIE was afforded a genuine opportunity
to present
its objections to wit Defendant VIE was provided with the summons and the complaint in this
matter See Estate ofSkepple 69 V I at 728 29 see also Title 5 V I C § ll4(a)(4)
( Proof of the
service of the summons and complaint or of the deposit thereof in the post office,
shall be as
follows The written admission of the defendant ’) As such, the Court finds that
Defendant
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VIE’s actual notice also constitutes legal notice, and thus, the Court has personal jurisdiction over
Defendant VIE Accordingly, the Court will deny Defendant’s motion to dismiss for lack of
personal jurisdiction and insufficient service of process
2 Failure to State a Claim Upon Which Relief can be Granted
11 9 In its motion, Defendant VIE argued that Plaintiff‘s claim(s) against it should be dismissed
because the complaint failed to “even meet the liberal notice pleading standard 5 (Motion 7)
Defendant VIE made the following assertions in support of its argument (i) “In the instant
Complaint, the only allegation against V I E is that it owned the vehicle that codefendant Rivera
Melendez was driving at the time of the accident (Id at 6) (emphasis omitted); (ii) “V I E and
the Court are lefi to speculate about what the claim against V I E is, and the grounds for it (Id );
(iii) “In the absence of any allegations against V I E other than mere ownership, V I E can only
speculate that the Complaint attempts (albeit unsuccessfully) to state a claim of negligent
entrustment ’ and “[a]m0ng other things, negligent entrustment claims require a good faith, specific
assertion of why the entruster should have known that it was likely that the driver would be
involved in an accident ”6 (Id ) and (iv) ‘ Here, plaintiff apparently alleges V I E ’3 per se liability
based merely upon V I E s alleged ownership interest in the vehicle’ and “[t]hat fails to state a
claim ’ (Id , at 7)
a Standard of Review
1| 10 Rule 12(b)(6) of the Virgin Islands Rules of Civil Procedure (hereinafter Rule l2(b)(6) )
allows a party to assert by motion the defense of ‘ failure to state a claim upon which relief can be
5 Defendant VIE referenced Orleyt Sugar Bay Club & Resort Corp 2018 WL 4002726 at *5 (V I Super Ct May
14 2018) Mortont Mapp
2018 WL 9800975 at *2 (VI Super Ct 2018)
6 Defendant VIE referenced Chustopher t Whttnngton
2022 WL 766986 *3 (VI Super Ct March 8 2022)
Faulknm 1 Virgm Islands
60 VI 65 88 89 (VI Super Ct Feb 19 2014)
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Memorandum Opinion and Order 2022 VI SUPER
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granted ’ and move for dismissal The Rule 12(b)(6) motion tests the sufficiency of the complaint
Rule 8 of the Virgin Islands Rules of Civil Procedure (hereinafter Rule 8”) requires, inter aha, “a
short and plain statement of the claim showing that the pleader is entitled to relief because this
is a notice pleading Jurisdiction and the pleading shall be set forth in separate numbered
paragraphs as provided in Rule 10(b), with separate designation of counts and defenses for each
claim identified in the pleading ” V I R Clv P 8(a)(2) As a notice pleading jurisdiction, “[a]
complaint is sufficient ‘so long as it adequately alleges facts that put an accused party on notice of
claims brought against it Oxley v Sugar Bay Club & Resort Corp 2018 V I LEXIS 81 at *3
(V I Super Ct May 14 2018) (quoting Mills Williams 67 V I 574 585 (V I 2017))
accmd Arno, 71 V I at 501 (“‘Plead the who, what, where, when, and how sufficient
information to put a defendant on notice of the conduct and actions the plaintiff complains of ’ ’
(brackets and citation omitted» “[A] complaint need not plead facts to support each element of
a claim in order to adequately allege facts that put an accused party on notice or to show[] the
pleader is entitled to relief under V I R Clv P 8(a)(2)[] [b]ut, a complaint should provide factual
allegations sufficient to advise the responding party of the transaction or occurrence on which
the claim is based and identify the claim, reciting its elements, so as to enable the defendant to
respond intelligently and to enable the Court to determine on a motion to dismiss under V 1 R
Civ P 12(b)(6) whether the claim is adequately pied Orley 2018 V I LEXIS at *10 7 see Mills
Williams 67 V I at 585 (citing V I R Civ P 8 Reporters Note) ( Virgin Islands Rule of Civil
7 The Otlev court noted that considering the policy of the Supreme Court of the Virgin Islands requiring
the Superior
C cum to conduct 3 Banks analysis to determine the applicable common law when confronted with an issue of common
law that has not yet been adopted by the Supreme Court of the Virgin Islands m order to enable the Superior
Court to
recognize a potential Banks issue and order the parties to brief it, this Court underscores that a complaint should recite
the elements of a common law claim so as to make clear the legal theory presented, given that
elements among
common law claims of the same name may vary 2018 V 1 LEXIS at *10 11 This Court agrees
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Procedure 8 expressly states that the Virgin Islands “is a notice pleading Jurisdiction,’ V I R CIV
P 8(a), and the Reporter's Note eliminates any doubt that this language is calculated to apply[]
an approach that declines to enter dismissals of cases based on failure to allege
specific facts which, if established, plausibly entitle the pleader to relief ) (emphasis in original);
see also Brathwattev H D V 1 Holding Co 2017 V I LEXIS 76 at *3 (VI Super Ct May 24
2017) (acknowledging that Virgin Islands Civil Procedure Rule 8(a)(2) eliminates the plausibility
standard and instead will permit a complaint so long as it “adequately alleges facts that put an
accused party on notice of claims brought against it”)) “When ruling on a motion to dismiss
for
failure to state a claim, the court does not address the merits ” Oliver v Termmzx lnt'l Co , 73
VI
210 214 (V 1 Super Ct April 26 2020) accord Arno 71 V I at 494 Instead courts assume all
reasonable factual allegations in the complaint as true and draw all fair inferences from such
allegations ’ ’ Arno, 71 V I at 494 (quoting In re Kelvm Manbodh Asbestos Ling Sezers,
47
VI
375 380 (VI Super Ct March 3, 2006)) However ‘ [a]llegations will not be reasonable nor
will
inferences in favor of the plaintiff be fair, where they contradict facts either contained in the public
record or Judicially noticed by the Court ’ In re Kelvin Manbodh Asbestos Ling Series, 47 V I at
380
b Analysis
T, l I Upon review of the complaint, the only allegation against Defendant VIE is that it owned
the vehicle that codefendant Defendant Rivera Melendez was operating at the time ofthe accident
(Compl 1H] 2, 8 ) There are no other allegations pertaining to Defendant VIE In fact, both counts
in complaint are causes of action against Defendant Rivera Melendez 3 Thus, the Court is lefi to
8 See supra, footnote 1
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speculate the nature of the claim(s) Plaintiff alleged against Defendant VIE In “assum[ing] all
reasonable factual allegations in the complaint as true and drawing all fair inferences from such
allegations, the Court speculates that, as Defendant VIE speculated in its motion, that Plaintiff
attempted to allege a negligent entrustment claim against Defendant VIE As such, the Court finds
that the complaint has not sufficiently put Defendant VIE on notice of the claim that is brought
against Defendant VIE to defend However, afier due consideration, the Court believes that the
appropriate resolution at this juncture is to grant Plaintiff leave to amend his complaint to provide
Defendant VIE with more clarity to put Defendant VIE on notice of the claim(s) brought against
it and deny Defendant VIE’s motion to dismiss for failure to state a claim upon which relief can
be granted See In re Change of Name of Reynolds 60 V I 330 336 (V I 20l3) (noting that a
party must be ‘afforded notice and an opportunity to amend or otherwise respond before a trial
court may sua sponte dismiss a complaint that fails to state a cause of action’)
CONCLUSION
1] 12 Based on the foregoing, the Court will deny Defendant VlE’s motion to dismiss for lack
of personal jurisdiction, insufficient service of process, and failure to state a claim upon which
relief can be granted, and grant Plaintiffleave to amend his complaint Given that Plaintiff‘s claims
against Defendant Rivera Melendez have been dismissed, the first amended complaint should
remove Plaintiff‘s claims against Defendant Rivera Melendez Accordingly, it is hereby
ORDERED that Defendant VlE’s motion to dismiss for lack of personal Jurisdiction,
insufficient service of process, and failure to state a claim upon which relief filed on July 27, 2022,
is DENIED It is further
ORDERED that within thirty (30) days from the date of entry of this Memorandum
Opinion and Order, Plaintiff shall file (i) a redline copy of the proposed first amended complaint
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reflecting the changes made to the initial complaint and (ii) a clean copy of the proposed
first
amended complaint IN COMPLIANCE with the Virgin Islands Rules of Civil Procedure—
including, but not limited to, setting forth counts in separate numbered paragraphs with
separate
designation of the specific names of each count in the pleadings as required under Rule
8 It is
further
ORDERED that the proposed first amended complaint shall REMOVE Plaintiff‘s claims
against Defendant Rivera Melendez And it is fimher
ORDERED that Plaintiff is notified that failure to file the proposed first amended
complaint within the aforementioned period may result in the dismissal of this case without
prejudice
not
DONE and so ORDERED this 1’) day of November 2022
ATTEST fl Mi”?
Tamara Charles HAROLD W L WILLOCKS
Clerk of the Court Administrative Judge of the Superior Court
Court Clerk r11.
Dated /§Z ;E :02
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Croix
KENDALL L MATOO, Case Number: SX-2022-CV-00199
Plaintiff Action: Personal Injury
v.
LUIS RIVERA MELENDEZ,
Defendant.
NOTICE of ENTRY
of
Memorandum Opinion and Order
To: Beverly A. Edney, Esq. Ryan Christopher Stutzman, Esq.
Please take notice that on November 03, 2022
a(n) Memorandum Opinion and Order
dated November 03, 2022 was/were entered
by the Clerk in the above-titled matter.
Dated: November 03, 2022 Tamara Charles
Clerk of the Court
By:
Janeen Maranda
Court Clerk II