IN THE DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
KELLEY MALA,
Plaintiff,
Civil No. 2006/120
                           
           v.
CROWN BAY MARINE, INC.,
Defendants.
REPORT AND RECOMMENDATION REGARDING
MOTION “UNDER RULE 59 TO ARREST JUDGMENT DISMISSAL OF COUNT TWO
UNDER SUMMARY JUDGMENT NEGLIGENCE SUPERVISION”
Before the Court is plaintiff Kelley Mala’s motion to “arrest”
the dismissal of his claim alleging negligent supervision. (ECF
488) For the reasons set forth below, it is recommended that this
1
motion be denied.  
Based on the evidence presented in plaintiff’s case-in-chief,
the relevant facts are as follows.  On January 6, 2005, plaintiff
went to the defendant’s dock to fuel his boat.  As he was fueling,
plaintiff rigged the fuel pump nozzle so that the boat would
continue fueling while he went into the marina’s office to purchase
oil.  Upon exiting the office, plaintiff saw that fuel was
overflowing from the hose and the boat’s gas tank into the water
 By the time the reply brief on this motion was filed, Mala
1
had retained counsel.  In the reply (ECF #524), counsel suggests
plaintiff intended to withdraw this motion and that the Court’s
February 28, 2011 Order deemed it to have been withdrawn.  That
Order, however, dealt with another of Mala’s motions.  Therefore,
the Court will address the instant motion to complete the record. 
  
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Kelley Mala v. Crown Bay Marine, Inc.
Civil No. 2006-120
Page 2 of 7
and into plaintiff’s boat.  After Mala removed the fuel pump nozzle
and stopped the flow of fuel, the attendant at the dock, who had
not assisted Mala in the fueling process, gave Mala soap and water
to clean his boat, and left.  Thereafter, plaintiff motored from
the marina in his boat, which a short time later caught fire. 
Plaintiff suffered burns in the fire.   
Plaintiff proceeded to trial pro se under two theories: (1)
that defendant’s fuel pumps had been negligently maintained; and
(2)that defendant was negligent in its supervision of its fuel dock
attendant.  At the conclusion of plaintiff’s case-in-chief,
defendant Crown Bay renewed its prior motion for summary judgment
and moved for judgment as a matter of law under Federal Rule of
Civil Procedure 50 with regard to both of plaintiff’s claims. 
2
With respect to the claim of negligent supervision, the Court found
that it had heard no evidence regarding that theory that would
justify either submitting the claim to the jury or being considered
by the Court, and it granted defendant’s motion as to that claim. 
Federal Rules of Civil Procedure 50(a) and 52(c)provide, in 
jury and non-jury trials respectively, that “[i]f a party has been
fully heard on an issue” and there is not sufficient evidence to
 Federal Rule of Civil Procedure 50 applies in cases being
2
tried to a jury.  Because this was an admiralty case having only
an advisory jury, the motion should have been brought under Rule
52 (c).  The practical effect of this difference is discussed,
infra, at note 7.    
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Kelley Mala v. Crown Bay Marine, Inc.
Civil No. 2006-120
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find in favor of the party on that issue, then the Court can
resolve the issue against that party.  Thus, under those rules, it
is the state of the evidentiary record at the close of plaintiff’s
case, when he “has been fully heard on an issue,” that controls. 
If the Court finds that plaintiff has failed to adduce enough
evidence in its case-in-chief to support a finding in its favor on
any claim or claims, then judgment may be entered against the
plaintiff on any such claims.  Similarly, in the context of
deciding a motion for summary judgment, the Court considers only
the evidence that is of record at the time of the decision. 
3
Plaintiff now moves the Court to “withdrawal the dismissal of
Court 2. Negligence Supervision [sic],” essentially contending it
was error for the Court to have dismissed this claim.  This motion
is akin to a motion for reconsideration, which may only be granted
if the movant shows: “(1) an intervening change in the controlling
law; (2) the availability of new evidence that was not available
when the court granted the motion . . . ; or (3) the need to
correct a clear error of law or fact or to prevent manifest
 Teague Conway v. A.I. Dupont Hospital For Children, 2009
3
U.S. Dist. LEXIS 45198, at *8-9 (E.D. Pa. May 26, 2009)(citing
Pavlik v. Lane, Ltd./Tobacco Exps. Int’l, 135 F.3d 876, 882
n.2(3d cir. 1998)).  See also Berckeley Investors Group, Ltd. v.
Colkitt, 455 F.3d 195, 201 (3d Cir. 2006)(“the nonmoving party
must point to some evidence in the record that creates a genuine
issue of material fact"); Worbetz v. Ward North America, Inc. 54
F. App'x 526, 533 (3d Cir. 2002).
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Kelley Mala v. Crown Bay Marine, Inc.
Civil No. 2006-120
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injustice.” Manifest injustice is defined as “‘an error in the
4
trial court that is direct, obvious, and observable . . . .’”5
 Mala does not argue that there was an intervening change in
the law, or that new evidence became available after the motion was
granted.
Rather, Mala seems to argue that the Court dismissed his
negligent supervision claim because it made an error of law or
fact.  Mala’s argument rests on evidence presented only after the
motion was granted, however, and in reality merely demonstrates a
disagreement with the Court’s conclusions.  In his motion Mala sets
forth the elements of a cause of action for negligent supervision,
and then argues that evidence he did not offer, or that was
presented during the defendant’s case (after the claim was
6
 Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176
4
F.3d 669, 677 (3d Cir. 1999).  
 Teague Conway, 2009 U.S. Dist. LEXIS 45198, at *28, n. 8. 
5
 In support, Mala cites to the testimony of defendant’s
6
employees and operating partner, Jamie Demaris, Steve DeSilva,
and Dennis Kissman, who testified that they did not have a duty
to help him clean the fuel that spilled in his boat, and that
vessel owners were responsible for cleaning their own fuel
spills.  Mala contends that this evidence was a misstatement of
Crown Bay and its employees’ duty to him, because Virgin Islands
and federal laws, and Crown Bay’s Spill Prevention Control &
Countermeasure Plan, in fact imposed a duty on Crown Bay and its
employees to have assisted him with the cleaning of the fuel from
his boat.  Mala failed, however, to challenge these witnesses, or
offer evidence of these laws and the Crown Bay plan, during his
case.   
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Kelley Mala v. Crown Bay Marine, Inc.
Civil No. 2006-120
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dismissed) established those elements.  Plaintiff may not rely on
such evidence in support of reconsideration.
Mala contends the Court erred when it “assumed that . . .
Crown Bay Marina, Inc. and it’s (sic) employees had no duty to . .
. Mala in assisting with the clean up or removal process or
procedures of the spill fuel . . . .”  But the Court correctly
determined that it had no basis on which to find such a duty
because Mala had failed to present any evidence in his case that
such a duty existed.  As a result, no such evidence was before the
Court at the time the motion was decided.  In his case-in-chief,
Mala certainly had an opportunity to present evidence of Crown
Bay’s duty to him and of its breach, but he failed to do so. 
Essentially, Mala is now asking the Court to reconsider its
judgment based on evidence that was available to plaintiff at the
time of trial, but which he did not present.  These circumstances
do not warrant relief. 
       
Accordingly, as Mala has not met any of the grounds for
the Court to grant a his motion to reconsider its prior ruling, it
is recommended that Mala’s motion “to arrest” the dismissal of his
negligent supervision claim be DENIED.7
 Although it is recommended that the Court find plaintiff
7
is not entitled to relief on the merits, procedurally there may
be a need for the Court to amend its decision with respect to
this claim.  Defendant moved under Federal Rule of Civil
Procedure 50 for a judgment as a matter of law, but such a motion 
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Kelley Mala v. Crown Bay Marine, Inc.
Civil No. 2006-120
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is appropriate only in a jury trial.  As noted, this case was an
admiralty action proceeding with an advisory jury, so the correct
motion should have been a motion for judgment on partial findings
pursuant to Rule 52(c).  Rule 52(c)provides that a judgment on
partial findings must be supported by findings of fact and
conclusions as required under Rule 52(a), which states: “[i]n an
action tried on the facts without a jury or with an advisory
jury, the court must find the facts specially and state its
conclusions of law separately.  The findings of fact and
conclusions of law may be stated on the record after the close of
the evidence or may appear in an opinion or a memorandum decision
filed by the court.  Judgment must be entered under Rule 58.” 
The requirement that a court make such findings in nonjury trials
is mandatory.  H. Prang Trucking Company, Inc., v. Local Union
No. 469, 613 F.2d 1235, 1238 (3d Cir. 1980). 
 
Thus, the Court should have made specific findings of fact
and conclusions of law in connection with the dismissal of the
negligent supervision count, if such dismissal was under Rule 52
(c).  In announcing the decision, the Court noted the following
on the record: 
[s]pecifically, the motion will be granted as to the theory
of the count - - of the claim dealing with negligent
supervision of the attendant.  I didn’t hear any evidence
regarding the theory that would support that claim being
submitted to the jury or being considered by me at trial.  
As such, it appears the Court did not make the requisite
findings under Rule 52(a). Nor did the Court make any findings on
plaintiff’s negligent supervision claim when it rejected the
advisory jury’s verdict and entered Findings of Fact and
Conclusions of Law on Mala’s negligent maintenance claim.  Thus,
there are no findings of fact and conclusions of law on the
record on plaintiff’s negligent supervision claim, but the Court
may, pursuant to Rule 59(a)(2)(because Kelly Mala has made a
timely motion for a new trial) amend its Findings of Fact and
Conclusions of Law to address the negligent supervision claim, or
it may make new findings and direct the entry of a new judgment. 
If, however, the Court granted the dismissal of plaintiff’s
negligent supervision claim pursuant defendant’s renewed motion
for summary judgment, then, under Rule 52(a)(3), the Court was
not required to make additional findings of fact or conclusions
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Kelley Mala v. Crown Bay Marine, Inc.
Civil No. 2006-120
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Any objections to this Report and Recommendation must be filed
in writing within 14 days of receipt of this notice.  Failure to
file objections within the specified time shall bar the aggrieved
party from attacking such Report and Recommendation before the
assigned District Court Judge. 28 U.S.C. Section 636(b)(1); LRCi
72.3.
Dated: July 22, 2011
   s/                         
RUTH MILLER
UNITED STATES MAGISTRATE JUDGE
of law.  
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