IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX



RONAE P. BURKE, )

) CIVIL NO. SX-16-CV-121

Plaintiff, )

) ACTION FOR DAMAGES

V. )

) JURY TRIAL DEMANDED

TREASURE BAY V.I. CORP. d/b/a DIVI CARINA )

BAY CASINO, VINCENT SMITH and LYA SMITH )

f/k/a LYA WESTBROOK or LAURA )

WESTBROOK, )

)

Defendants. )

)

MEM I



MOLLOY, Robert A., Judge



THIS MATTER comes before the Court on Defendant Treasure Bay V.I. Corp.’s

(hereinafter “TBVI”) “Motion to Dismiss Complaint for Arbitration” filed on April 13, 2016.

TBVI seeks a dismissal of the claim alleged by Plaintiff, Ronae Burke (hereinafter “Burke”)

based on the fact that Burke agreed to arbitrate those claims. Also before the Court is

Defendants, Vincent Smith and Lya Smith (hereinafter “the Smiths” or “the Smith

Defendants”), “Motion to Stay Pending Arbitration” filed on April 22, 2016. The Smiths, non-

signatories to the arbitration agreement, request that the court stay the civil action until the

completion of the arbitration between Burke and TBVI.



For the reasons stated below, the Court will convert TBVI’s motion to dismiss into a

motion for summary judgment and allow the parties an opportunity to submit materials

pertinent to the issue as to whether Burke agreed to arbitrate the claims alleged against



TBVI. In addition, the Court will deny the Smiths motion to stay this case pending arbitration.

Burke v. TBVI, et al.

Civil No. SX-15-CV-347

Memorandum Opinion

Page 2 of 10



I. BACKGROUND



For purposes of these motions, the Court will consider the factual allegations in the

complaint as true.



On March 18, 2014, Burke, along with two of her friends, Shamar Morris and Yessina

Perez, were playing black jack at the Divi Carina Bay Casino, a property owned and operated

by TBVI. Burke alleges that Defendant Vincent Smith approached the black jack table and

inquired as to whether he could sit at the empty seat next to Burke. When Burke informed

Smith that someone was playing in that seat and the table was full, Smith began to harass

Burke and the other guests sitting at the table. Burke alleges that Smith continued to behave

in a drunken and belligerent manner cursing at Burke and refusing to leave the black jack

table. Smith then began to direct his rude and harassing behavior towards Morris. Burke

alleges that Smith punched Morris as the two got into a physical altercation with Smith

“hitting and pulling Mr. Morris by his dreadlocks as Mr. Morris was falling to the ground.”

Verified Comp. J 20. Burke and another friend then began to assist Morris. The complaint

does not allege exactly at what point Burke sustained her injuries, but paragraph 25 of the

complaint alleges that “[a]s a result, the plaintiff suffered bodily injuries, psychological and -

mental pain, anguish, loss of enjoyment of life, and medical expenses all of which will

continue for the foreseeable future as a direct and proximate result of the defendants’

conduct.” Id. at J 25.



Burke filed a Verified Complaint on March 18, 2016, alleging two causes of action.



Count I alleges a cause of action for assault and battery against Defendants Vincent and Lya

Burke v. TBVI, et al.

Civil No. SX-15-CV-347

Memorandum Opinion

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Smith.t Count II alleges a cause of action for negligence against TBVI for “fail[ing] to take

reasonable and timely actions to protect plaintiff...” Id. at J 34.



On April 13, 2016, TBVI filed a motion to dismiss the complaint contending that Burke

signed a Beachcomber’s Gold Club Membership Agreement which contained language

wherein Burke agreed to arbitrate any dispute arising out of her use of the casino. Several

days thereafter, on April 22, 2016, the Smiths filed a motion to stay the case while TBVI and

Burke proceeded to arbitration. Burke has not filed a response to either motion.



Il. DISCUSSION

a. TBVI’s Motion to Dismiss



TBVI filed a pre-answer motion contending that the Court should dismiss the

complaint because Burke agreed to arbitrate the negligence claim filed against TBVI. TBVI

does not identify the rule that would govern this motion, but instead, cites to several

provisions of the Federal Arbitration Act (“FAA”) in support of its position. The United States

Supreme Court, however, has explicitly held that the FAA applies in state courts only to. the

extent that an arbitration provision affects interstate commerce. Allied-Bruce Terminix

Companies v. Dobson, 513 U.S. 265 (1995); see also Gov't of the V.I. v. United Indus. Workers,

169 F.3d 172, 176, 40 V.I. 489 (3d Cir. 1999) (“a contract comes within the purview of the

FAA only when an interstate nexus is shown”). TBVI has presented no arguments or made

any showing that the arbitration agreement in this case has. any affect on interstate



commerce. Allen v. HOVENSA, L.L.C., 59 V.I. 430, 442 n.2 (V.I. 2013) (“[I]t is the burden of the



1 Paragraph 23 of the Verified Complaint alleges that “Defendant Lya Smith was an aider and abettor in her

husband’s criminal conduct—a “hate crime” (third degree assault under 14 V.LC. § 707(a)) and subject to joint

civil liability as a participant therein.” Verified Compl. { 23.

Burke v. TBVI, et al.

Civil No. SX-15-CV-347

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party seeking to compel arbitration to prove that the contract at issue involves commerce.”).

Thus, it is unclear to the Court that the provisions of the FAA applies to this case.



Nonetheless, TBVI seeks a dismissal of this matter pursuant to an agreement to

arbitrate between Burke and TBVI. “[M]otions seeking a dismissal of an action on the basis

that arbitration is required ... are covered under Federal Rules of Civil Procedure 12(b)(6)

or 56.” Martinez v. Columbian Emeralds, Inc., 51 V.I. 174, 188 (V.I. 2009) (citations omitted).

Here, TBVI filed a pre-answer motion to dismiss raising the affirmative defense that Burke

agreed to arbitrate this dispute. Thus, the Court will determine whether the complaint

should be dismissed under Rule 12(b)(6).



“Under [Rule 12(b)(6)], a party may move to have a claim dismissed for failure to

state a claim upon which relief can be granted.” Brady v. Cintron, 55 V.I. 802, 822 (V.I. 2011)

(internal citations omitted). The facts alleged in the pleadings, and any inferences drawn

therefrom, must be viewed in the light most favorable to the plaintiff. Benjamin v. AIG Ins.

Co. of Puerto Rico, 56 V.1 558, 566 (V.I. 2012). “In deciding a Rule 12(b)(6) motion to dismiss,

the Court may consider ‘the allegations contained in the complaint, exhibits attached thereto,

and matters of public record.” Petersen v. Golden Orange Ctrs. Inc., 2014 V.I. LEXIS 76, at *4

(V.I. Super. Ct. Sept. 25, 2014) (quoting Beverly Enters., Inc. v. Trump, 182 F.3d 183, 190 n.3

(3d Cir. 1999)). “However ...a document integral to or explicitly relied upon in the

complaint may be considered without converting the motion to dismiss into one for

summary judgment.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (internal quotations



and citations omitted).

Burke v. TBVI, et al.

Civil No. SX-15-CV-347

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However, “if, on a motion under Rule 12(b)(6) matters outside the pleadings are

presented to and not excluded by the court, the motion must be treated as one for summary

judgment under Rule 56.” Islands Tile & Marble, LLC v. Bertrand, 57 V.1. 596, 612 (V.I. 2012)

(emphasis in original); see also Fed. R. Civ. P. 12(d).2 “Rule 12(b) gives [courts] two options

when matters outside the pleadings are presented in... a 12(b)(6) motion: the court may

exclude the additional material and decide the motion on the complaint alone or it may

convert the motion to one for summary judgment under Fed. R. Civ. P. 56 and afford all

parties the opportunity to present supporting material.” Fonte v. Bd. of Managers of

Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir. 1988) (citing 5 C. Wright & A.

Miller, Federal Practice and Procedure § 1366 (1969 & Supp. 1986)).



In this matter, TBVI attached two exhibits to its motion to dismiss (purportedly

bearing Burke’s signature) containing broad language wherein the signer agreed to arbitrate

any dispute “that arises from or relates in any way to the Facilities and/or Services...” and

“includes disputes based on constitutional provisions, statues, regulations, ordinances,

contracts, and alleged wrongful acts of every type (whether intentional, fraudulent, reckless,

or negligent).” See TBVI’s Mot. to Dismiss - Exhibits A and B. However, these

unauthenticated documents were not attached to the complaint nor were they referenced in



any of Burke’s allegations. These documents are extraneous to the complaint and thus, the



2 Rule 12(d) provides:



If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to

and not excluded by the court, the motion must be treated as one for summary judgment under

Rule 56. All parties must be given a reasonable opportunity to present all the material that is

pertinent to the motion.

Burke v. TBVI, et al.

Civil No. SX-15-CV-347

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Court considers these documents to relate to “matters outside the pleadings” rendering them

inappropriate for a consideration on a Rule 12(b)(6) motion. Accordingly, the Court will

convert TBVI’s motion into a motion for summary judgment and will allow the parties an

opportunity to present material as to whether there was a valid agreement to arbitrate the

claims alleged in the complaint against TBVI.

b. Smiths’ Motion to Stay Pending Arbitration



The Smiths seek a stay of the case based on the premise that the Court will order

Burke and TBVI to arbitration. The Smiths based their motion on section 3 of the FAA.3 Even

if the provisions of the FAA applied in this matter, there is no indication that Burke and the

Smiths entered into any agreement to arbitrate their claims. Thus, as a nonparty to the

arbitration agreement, the Smiths are not entitled to invoke section 3 of the FAA. See Mendez

v. Puerto Rican Int'l Companies, Inc., 553 F.3d 709, 715 (3d Cir. 2009) (holding that “in order

for a party to be the subject of a mandatory stay pending arbitration under section 3 of the

FAA, that party must have committed itself to arbitrate one or more issues in [the] suit.”);

see also IDS Life ins. Co. v. SunAmerica, Inc., 103 F.3d 524, 529 (7th Cir. 1996) (“Although not

expressly so limited, section 3 assumes and the case law holds that the movant for a stay, in



order to be entitled to a stay under the arbitration act, must be a party to the agreement to



3 Section 3 of the FAA states in full:



If any suit or proceeding be brought in any of the courts of the United States upon any issue

referable to arbitration under an agreement in writing for such arbitration, the court in which

suit is pending, upon being satisfied that the issue involved in such suit or proceeding is

referable to arbitration under such an agreement, 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, providing the applicant for the stay is not in default in proceeding with such

arbitration.



9 U.S.C. § 3.

Burke v. TBVI, et al.

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arbitrate, as must be the person sought to be stayed.”); Citrus Marketing Bd. of Israel v. J.

Lauritzen A/S, 943 F.2d 220, 224-25 (2d Cir. 1991) (“We have construed section 3 not to

authorize a stay at the behest of... a nonparty to the arbitration agreement”).



Notwithstanding the fact that the mandatory stay provisions of section 3 of the FAA

do not apply to nonparties to an agreement to arbitrate, this Court still retains the inherent

authority to stay a case. As stated by the Supreme Court of the United States:



The power to stay proceedings is incidental to the power inherent in every



court to control the disposition of the causes on its docket with economy of



time and effort for itself, for counsel, and for litigants. How this can best be



done calls for the exercise of judgment, which must weigh competing interests

and maintain an even balance.



Landis v. North American Co., 299 U.S. 248, 254-55, 81 L. Ed. 153, 57 S. Ct. 163 (1936). In

determining whether to stay a case pending arbitration between parties who are non-

signatories to an arbitration agreement, courts ordinarily consider three factors: (1)

whether the proposed stay would prejudice the non-moving party; (2) whether the

proponent of the stay would suffer a hardship or inequity if forced to proceed; and (3)

whether granting the stay would further the interest of judicial economy. See Airgas, Inc. v.

Cravath, Swaine & Moore LLP, 2010 U.S. Dist. LEXIS 15120, at *6-7 (E.D. Pa. Feb. 22, 2010)

(citing Landis, 299 U.S. at 254-55); see also Rhodes v. Independence Blue Cross, 2012 U.S. Dist.

LEXIS 17129 (E.D. Pa. Feb. 9, 2012). In weighing these factors, the court must keep in mind

that the party proposing the stay “must state a clear countervailing interest to abridge.a

party’s right to litigate.” CTF Hotel Holdings, Inc. v. Marriott Int'l, Inc., 381 F.3d 131, 138 (3d



Cir. 2004).

Burke v. TBVI, et al.

Civil No. SX-15-CV-347

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Assuming, without deciding, that the case between Burke and TBVI will eventually be

submitted to arbitration, the Court does not find that a stay is warranted in this case. First,

the Smiths have not presented a clear countervailing interest that would justify abridging

Burke's right to litigate her claim against them. There is no dispute that these parties have

not agreed to arbitrate the claim alleged in the complaint. Further, there is also no indication

that any arbitration proceeding between Burke and TBVI have commenced nor is there any

estimate as to how long the arbitration proceeding would last. At this juncture, Burke would

have to wait an indefinite amount of time before she could litigate her claim against the

Smiths if this matter were stayed. Such an indefinite stay would be an abuse of this Court’s

discretion and could substantially affect Burke’s right to litigate. See Dover v. Diguglielmo,

181 Fed. Appx. 234, 237 (3d Cir. 2006) (opining that trial court was not required to stay

proceedings indefinitely pending appointment of counsel because “such a stay can itself

constitute an abuse of discretion”).



Second, the Smiths have failed to demonstrate that they will suffer any hardship if

this matter is not stayed. Because the Smiths would not be a party to any arbitration

proceeding between Burke and TBVI, the Smiths would not be subject to duplication of work

nor would they have to expend any unnecessary resources. See e.g., Rhodes, 2012 U.S. Dist.

LEXIS 17129, at *15 (finding hardship to defendant because “[w]ithout a stay, defendant will

be required to spend time and money on this litigation duplicating the work required in the

Iowa litigation.”). To be sure, “the suppliant for a stay must make out a clear case of hardship



or inequity in being required to go forward, if there is even a fair possibility that the stay for

Burke v. TBVI et al.

Civil No. SX-15-CV-347

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which he prays will work damage to someone else.” Landis, 299 U.s at 255. The Smiths have

failed to do so. This Court finds that this factor weighs against the issuance of a stay.

Finally, the Court does not find that granting a stay would further the interest of

judicial economy. The Smiths argue, in a conclusory fashion, that granting a stay would

promote judicial economy because it would simplify and narrow (or eliminate) the issues for

trial. The Court disagrees. The issues to be resolved between Burke and the Smiths center

around whether Vincent Smith assaulted and battered Burke.* The issue between Burke and

TBVI is whether TBVI owed a duty of care to Burke by virtue of being the possessor of land

where Burke was allegedly injured.5 One claim is based on a theory of intentional torts and

the other is based on a theory of negligence. While in both claims Burke must prove that

Vincent Smith assaulted and/or battered her, in her claim against TBVI, however, Burke has

the additional burden of proving that TBVI knew or should have known that Vincent Smith

posed an unreasonable risk of harm to her, that TBVI should have expected that Burke would

not discover or realize the danger Vincent Smith posed to her, and TBVI failed to exercise



reasonable care to protect her from the danger posed by an allegedly drunk, belligerent, and



‘In order to prevail on a claim for the intentional tort of assault, a plaintiff must prove that: (1) the defendant

intentionally caused harmful or offensive contact with the person of the plaintiff or a third person, or an

imminent apprehension of such contact; and (2) the plaintiff is put in such imminent apprehension. See Ho v.

Vu, 2015 V.L. LEXIS 80, at *4 (V.I. Super. Ct. July 16, 2015) (conducting Banks analysis and citing Restatement

(Second) of Torts § 21); Canton v. Gov't of the Virgin Islands, 2016 V.I. LEXIS 31, at *6 (V.I. Super. Ct. Apr. 4,

2016). Similarly, in order to prevail on a claim for battery, a plaintiff must demonstrate that the defendant

intended “to cause a harmful or offensive contact with the person of the other or a third person, or an imminent

apprehension of such a contact, and . .. a harmful contact with the person of the other directly or indirectly

results.” Ho, 2015 V.I. LEXIS 80, at *5 (citing Restatement (Second) of Torts § 13).



5 “In the Virgin Islands, a possessor of land is subject to liability for physical harm caused to its business invitees

by a condition on the land only if it: (1) knows or by the exercise of reasonable case would discover the

condition, and should realize that it involves an unreasonable risk of harm to such invitees; (2) should expect

that they will not discover or realize the danger, or will fail to protect themselves against it; and (3) fails to

exercise reasonable care to protect them against the danger.” Bynoe v. CULUSVI, Inc., 2016 V.L. LEXIS 32, at *3-

4 (V.I. Super. Ct. Apr. 1, 2016 (citing Perez v. Ritz-Carlton (Virgin Islands), Inc., 59 V.1. 522, 529 (V.L. 2013)).

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Civil No. SX-15-CV-347

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aggressive Vincent Smith. Failure to prove any one of these elements would be fatal to

Burke’s claim against TBVI. See generally, Perez, 59 V.I. 522 (V.I. 2013) (establishing the

elements for a cause of action for negligence based on a theory of premises liability). An

arbitrator, potentially, could render a decision in TBVI’s favor without reaching the issue of

whether Vincent Smith assaulted or battered Burke. Thus, it would appear that the claim

against TBVI is more complex and involve more issues to which a resolution is not likely to

have a significant effect on the issues relating to Burke’s claim against the Smiths. While a

court may “in the exercise of its sound discretion ... hold one lawsuit in abeyance to abide

the outcome of another which may substantially affect it or be dispositive of the issues,”

Bechtel Corp. v. Laborers’ Int'l Union, 544 F.2d 1207, 1215 (3d Cir. 1976), a decision by an

arbitrator in the TBVI matter could have little or no impact on Burke’s ability to pursue her

claim against the Smiths. Accordingly, the Court finds that the Smiths have failed to

demonstrate that the issuance of a stay would promote the interest of judicial economy.

III. CONCLUSION



In sum, the Court will convert TBVI’s motion to dismiss into a motion for summary

judgment and will allow the parties to submit materials on the issue of whether Burke agreed

to arbitrate her claim filed against TBVI. The Court, however, will deny the Smiths’ request



to stay the non-arbitrable claims Burke filed against them. An appropriate Order follows.



— Ly

DATED: October 6, 2016 ee WEE,



ROBERT Paco

Judge of the Superior Court