SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
SHOWAYNE SIDNEY MODESTE
PLAINTIFF,
v.
SX 15 CV 00018
DIVI CARINA BAY CASINO ACTION FOR DAMAGES
DEFENDANT CITED AS 2020 VI SUPER 93 U
I
I
_l
Appearances
Showayne Sidney Modeste
Pro Se Plamnfl
Ryan C Meade, Esq
Quintairos, Prieto Wood & Boyer P A
9300 South Dadeland Blvd 4 h Floor
Miami Florida 33156
For Defendant
MEMORANDUM OPINION 8: ORDER
WILLOCKS Presiding Judge
1|] THIS MATTER is‘ before the Court on Defendant 5 Motion to Dismiss Plaintiff s Complaint
filed by the Court on June 29 2015 but signed by Defendant on June 1 1 2015
The Complaint was filed on January 28 2015 An Order was signed by the Court on May 2 2015
granting Plaintiff’s Forma Pauperzs Motion An Opposition to Defendant’s Motion to Dismiss was
filed on June 22 2015 Defendant filed a Reply in Support of its Motion to Dismiss on July 14 2015
On August 24 2015 an Opposition to Defendant 3 Reply was Received was filed by Plaintiff A
Motion to Strike was filed by Defendant on October 13 2015 A Request for Oral Argument was made
on February 17 2016 by Defendant
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Order
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I Background
$2 The Complaint alleged that on May 24 through May 25 of 2012 Plaintiff was playing at the
Divi Carina Bay Casino (Pl 5 Complaint) Plaintiff alleges that she placed a bet and an employee
pulled the completed rolled dice (Pl 5 Complaint) Plaintiff seeks damages in the amount of $l0 000
plus costs and attorney’s fees (Pl 3 Complaint) Defendant alleges that under the Divi Carina Bay
Resort and Casino Beachcomber’s Gold Club Membership Agreement (hereinafter Membership
Agreement ) guests and facility users including without limitation Beachcomber’s Gold Club
members are subject to the Agreement to Arbitrate (Defendant 3 Motion to Dismiss Ex A) The
Defendant contends that arbitration should govern when and how disputes are resolved
The Arbitration Agreement states, in relevant part
Important Notice and Limitations If you or we elect to arbitrate a claim you and we will not
have the right to pursue that claim in court or have a jury decide the claim Also your ability to obtain
information from us and to appeal is more limited in an arbitration than in a lawsuit Other rights that
you would have if you went to Court may also not be available in arbitration The fees charged by the
administrator may be higher than the fees charged by a Court
(See Ex A p 2)
ll Motion to Strike
1|3 Defendant contends that the Local Rules of Procedure only permit the filing of a motion a
response in opposition and a reply Defendant contends that Plaintiff’s sur reply was filed seventy
seven (77) days after Defendant 3 reply For a Motion to Strike the Court may strike from a pleading
an insufficient defense or any redundant immaterial, impertinent or scandalous matter " The facts do
not rise to the standard that would warrant a Strike off the record and the Court finds Defendant s
argument moot The Local Rule that Defendant contends would warrant a Strike was repealed in 20] 9 ’
Thus the Court will deny Defendant 5 Motion to Strike
SeeVl Civ P R l2“)
See V1 Super Ct Rule 7 [Repealed Feb IS 209 by S Ct Prom No 2019 003,
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Order
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[1] Standard of Law
‘]|4 Like this Court 5 decision in Williams v Groundwater & Enwronmental Serwces Inc
Defendant 5 Motion will be granted, however rather than ordering the discretionary dismissal of the
case as sought by Motion because the terms of the Agreement require that arbitration take place
pursuant to the Federal Arbitration Act (hereinafter FAA ) the Court will order these proceedings
stayed pending arbitration pursuant to section 3 of the FAA 3
IV Discussion
(115 The Defendant contends that Plaintiff agreed to arbitrate when executing the Membership
Agreement and as such, this matter should be dismissed and subject to arbitration Plaintiff contends
that the Agreement is unconscionable and therefore unenforceable Since this case was filed in 2015
the law has changed regarding the FAA 4
a Arbitration Agreements Enforceable as a Matter of Law
‘]|6 First it is well established that arbitration agreements are enforceable as a matter of Virgin
Islands law See Gov (of the V! v Umted Indus Svc Transp Prof & Gov t Workers of N A 64
VI 312 330 (VI 2016) The law will ensure that private agreements to arbitrate are enforced
according to their terms Id In addressing Plaintiff’s argument that the agreement was
unconscionable if a party wants to challenge the unconscionability of a contract they must also
demonstrate that the contract contains terms unreasonably favorable to the stronger party "‘ The
Plaintiff s argument is unpersuasive that terms unreasonably favor Defendant therefore, the Court
‘ Wllllams v Groundwater & Environmental Senrlces Inc 72 V l 3‘31 (Super Ct 2020) See also Ex A Governing
Law that states the governing law is by the Federal Arbitration Act
‘ A party seeking to compel arbitration must not only show that an agreement to arbitrate exists but also show that the
contractevidences an interstate nexus Allen v Hovenm LLC 59 V1 410(Vl 2013)
‘ Williams v Groundwater & Ermronmenml Services Inc 72 V l Til (Super Ct 2020) (citing Allen v Havensa LLC
59 V I 430 444 (V l 20”» (quoting Nina v Jeweln Exchange Inc 609 F 3d I91 20| 53 V I 901 (3d Cir 20|0))
Modeste v DIV! Carma Bay Casmo 2020 VI SUPER 93U
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cannot hold in favor of Plaintiff on their unconscionability argument 6 The language consistently uses
the term you or we’ in regard to arbitration and this overcomes Plaintiff’s argument that the agreement
was one sided Thus, the Court finds the Plaintiff’s argument unpersuasive (See Ex A Section
‘Starting an Arbitration” and Important Notice and Limitations )
b Federal Arbitration Act (“FAA”)
1[7 This Court has held that to the extent that the issue may have been previously unsettled the
Supreme Court has clarified that the FAA applies to the Virgin Islands where the party seeking to
invoke an arbitration agreement establishes an interstate nexus Williams v Groundwater &
Environmental Servzces Inc 72 V I 33] (Super Ct 2020) (citing Whvte v Bockmo 69 VI 749 760
761)) The burden of proof is relatively low Id Indeed “for an interstate nexus to exist, the parties’
agreement need not be in interstate commerce nor have a substantial effect on interstate commerce in
other words the FAA commands the full reach’ of Congress‘s commerce power ” Id at 76] A
contract is deemed to affect interstate commerce ‘ where the economic activities of at least one of the
parties demonstrates a nexus to interstate commerce ” Id
118 Here the Court finds that instead of having the parties brief on the interstate commerce issue
the Court will not waste more time or judicial resources and rule on this clear issue now 7 The
Membership Agreement between the parties evidences an interstate commerce because the Divi Carina
Bay Resort and Casino Resort accommodates guests from all over in country as a tourism attraction in
the Virgin Islands This is clearly an agreement involving interstate commerce because patrons from
6 Id It is well established that the mere fact that a contract is adhesive does not without more render it
unconscionable See Allen v Havensa LLC 59 V l 410 440 (V I 20”) (citing AT&TMobi/in LLC v Conceplion 562
US '53? I‘ll S Ct I740 I749 50179L Ed 25742(20Il))
7 See Hendricks v Pumacle Senate: LLC 72 V l 630 (holding if the Defendants were to submit briets regarding the
interstate nature of the business the Plaintiff was protecting it would only confirm what the Court has already
determined that an oil refinery is necessarily engaged in interstate commerce and that the guarding of such facility
aftects interstate commerce by protecting the business even it the employment agreement does not specifically state so)
Modeste v DWI Carma Bay Casino 2020 VI SUPER 93U
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the U S mainland and outside the territory engage in the Divi Carina Bay Resort and Casino as an
attraction Thus the Court finds that the Agreement’s mandatory arbitration provision is enforceable
c Stay of Proceeding
‘][9 Since the parties specifically bargained for and agreed to the applicability of the FAA the
parties agreed that the trial court presiding over the suit shall on application of one of the parties stay
the trial of the action until such arbitration has been had in accordance with the terms of the
agreement ”3 Accordingly enforcing the terms of the parties Agreement requires that stay of further
proceedings rather than dismissal of this matter 9
d Request for Oral Argument
‘]|10 At this time, the Court will deny the request for oral argument on this matter and the dispute
should be resolved in arbitration
‘llll Accordingly, it is hereby
ORDERED that Defendant 3 Motion to Strike is DENIED it is further
ORDERED this matter is stayed pending the resolution in arbitration, it is further
ORDERED that the Parties must complete arbitration within sixty 1601 days from the entry of
this Order it is further
ORDERED that a copy of this Order by distributed to all parties and counsels on record
DONE and so ORDERED this Md” of November, 2020
" See Williams v Groundwater & Enwmnmemal Senate‘s Inc 72 V l Til (Super Ct 2020) (citing Title 9 U S Code
Section I 16))
Id at 342
Modeste v Div: Carina Bay Casmo 2020 VI SUPER 93U
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Page 6 of 6 W
ATTEST flé 21/
Tamara Charles HAROLD W L WILLOCKS
Clerk of the Court Presiding Judge of the Superior Court
9‘ mark? ’
w k ~ upe isor
Dated 4 I O