IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. THOMAS AND ST. JOHN



=90=



ALVIN BATTISTE and PATRICIA

BATTISTE, et al.,

Plaintiffs



vs. CIVIL NO. 505/1980

CITABANK, N.A., IBG PROPERTIES,

INC., NBG PROPERTIES, INC., and

TRADEWINDS, INC.,



SUPE See HESeeonecrsseseeccesers



Defendants



ee ee ee ee me eee re ee ce ee ee ee ee ee ee ee ee es



DAVID E. MASS, ESQ.



800 West Parkway



High Point, North Carolina 27262

and



GEORGE ETHRIDGE, ESQ.



P. O. Box 6



St. Thomas, Virgin Islands



(Co-Counsel for Plaintiffs



Battiste, et al.)



JOSEPH B. Wm. ARELLANO, ESQ.



P.O. Box 1705



St. Thomas, Virgin Islands



(Counsel for Defendants IBG Properties, Inc.,

NBG Properties, Inc., and Citibank, N.A.)



WILLIAM HELLER, ESQ.



P. 0. Box 888



St. Thomas, Virgin Islands



(Counsel for Defendant Tradewinds, Inc.)



MEMORANDUM OPINION AND ORDER

(February an , 1983)



FEUERZEIG, J.



In an enormous waste of resources of both the District Court

and this court, several identical motions in two closely related



cases have been before both courts. Now that the District Court

1/



has issued its Memorandum Opinion and Order, this court will

address the motions before it. All but one will be disposed of

summarily.



Defendant Tradewinds, Inc. has moved to dismiss, pursuant to

Rule 12(b) (6), Fed.R.Civ.P., all 27 counts of plaintiffs' complaint

that relate to punitive damages. Tradewinds urges that plaintiffs'

causes of action are based on contract and not tort and that

punitive damages cannot be awarded. Tradewinds does admit, how-

ever, that plaintiffs' complaint does appear to allege fraud, but

it claims those allegations are not stated with particularity, as

required by Rule 9(b), Fed.R.Civ.P.



Paragraph 9 of plaintiffs’ complaint states, "That the

defects and deficiencies encountered in the homes purchased by the

plaintiffs were all the result of negligence, carelessness,

deceit, and fraud of the defendant. . ." It then specifies more

than 35 defects found in the plaintiffs' homes. Moreover, para-

graph 8 alleges the homes "were seriously lacking in the qualities

which representatives of defendant in their sales representations

and their warranties had led plaintiffs to believe would be

delivered to them." Paragraph 12 further alleges that the "actions



and breaches of each defendant were wilful and committed with



i/ Tradewinds, Inc. v. Citibank, N.A. et al., Civ. No. 80-7

(D.V.I., Jan. 11, 1983).



2/ See Restatement (Second) of Contracts 6355 (1981), "Punitive

damages are not recoverable for a breach of contract unless

the conduct constituting the breach is also a tort for which



punitive damages are recoverable."

fraudulent intent . .." Such averments surely constitute "a

short and. plain statement of the claim," sufficient to meet the



standards of Rule 8({a). Fed.R.Civ.P. See Hirshhorn v. Mine Safety



Appliances Co., 54 F.Supp. 588 (D.C. Pa. 1944) (Rule 9(b) held not



to abrogate Rule 8(a) in fraud claims), and Cc. Wright and A. Miller,



Federal Practice and Procedure, §1298 (1969). Punitive damages



may be awarded for conduct that is outrageous, “because of the

defendant's evil motive or his reckless indifference to the rights



of others." Restatement (Second) of Torts 8908 (1979). Since the



plaintiffs may establish that the defendant Tradewinds' conduct

was fraudulent, and, thus, outrageous, the court will not dismiss

the counts for punitive damages. 3



The remaining motions will be disposed of summarily, but not

without comment. This court, as the District Court, also feels



compelled to comment briefly and adopts the language of Judge



Christian in Tradewinds v. Citibank, supra:



The number of lengthy*and in many instances almost purely

specious motions, affidavits and discovery requests filed by

counsel has, in the judgment of the Court, made a farce of

the orderly pre-trial motion and discovery practice contem-

plated by the Federal Rules. It should be remembered that

not every defect in an opponent's pleading provides a proper

basis for attack by way of motion. "The Federal Rules reject

the approach that pleading is a game of skill in which one

misstep by counsel may be decisive to the outcome..." Conley

v. Gibson, 355 U.S. 41, 48 (1957). So also the longstanding

custom in this jurisdiction of civility and accommodation

among counsel is antithetical to the idea that motion practice

and discovery are a syntactical jousting contest designed to

trick an opponent into damning admissions or oversights.



3/ The stipulation and agreement to strike all claims for puni-

~ tive damages that the plaintiffs had against Citibank, IBG



Properties, and NBG Properties does not affect the plaintiffs'

claims for punitive damages against Tradewinds.

It is well known to all the members of the bar that

this Court operates under a stringent mandate to minimize

the congestion of its criminal and civil case calendar. As

such, we can only take a dim view of the practice of servi-

cing interminable filings solely for the putpose of delay,

obstruction, or harrassment. The above-captioned action was

commenced three years ago this month. 4/ At this late date,

counsel for all parties surely owe a responsibility to their

clients, if not to the Court, to resolve minor differences

over discovery and filing deadlines through stipulation

rather than through time consuming (and costly) motions. See

Memorandum to Members of the Virgin Islands Bar, D.V.I., ~

July 15, 1981. Counsel are hereby put on notice that the

court is prepared to impose appropriate sanctions whenever a

filing is submitted merely as a dilitory tattic.



*Judge Aldisert has recently noted that "advocacy is

measured by effectiveness, not loquaciousness." "The

Appellate Bar: Professional Competence and Professional

Responsibility," Capital University Law Review, 445, 458

(1982). Indeed loquacity is the very reason a legal memo-

randum may fail to persuade a court inasmuch as meritorious

arguments are readily lost among groundless arguments.



ORDER



The court having reviewed the motions and supporting memo-

randa before it, it is



ORDERED that the motion of defendant Tradewinds, Inc. to

strike all punitive damage counts against it from plaintiffs' com-

plaint is denied, and it is further



ORDERED that the motion of Citibank, N.A. to join James J.

Urban, Lois Urban, Ken Kolasa, and Lynn Kolasa, four former

directors of Tradewinds, who now are serving as liquidating trust-



ees of that corporation, is granted in accordance with Tradewinds,



Inc. v. Citibank, N.A., No. 80-7 (D.V.I. Memorandum and Order,



January 11, 1983), and it is further



4/ The Territorial Court action was filed May 29, 1980, just

short of three years.

5.



ORDERED that the motion of Tradewinds to dismiss the complaint

of 14 plaintiffs for failure to comply with this court's order of

May 24, 1982 is denied on the grounds that all plaintiffs, al-

though in a very tardy fashion, now have complied with that order,

and it is further



ORDERED that the motion of defendants Citibank, N.A., et al.

to compel answers to a combined set of interrogatories and pro-

duction of documents is denied as moot, and it is further



ORDERED that the renewed motion of Citibank, et al. to compel

complete and non-evasive responses to questions 21(a)-(c), 25{a),

33, 39, 50A (Second), 97(a)-(h), and 98 (a) and (b) in its first

set of interrogatories and request for production of documents is

granted because the information sought is relevant to the subject

matter of the pending action and Tradewinds has raised no claim of

privilege with respect to the information sought. Tradewinds

shall supply the information sought within fifteen days of this

order. The motion is denied as to questions 31 and 40, and it is

further



ORDERED that the motion of Citibank to compel answers to its

second set of interrogatories and request for the production is

denied. The second set of interrogatories and request for the

production of documents are xeroxed copies bearing a joint caption:



the caption of this case and of the Tradewinds v. Citibank,



District Court case. The court can think of no reason why the



exact same set of interrogatories needs to be filed and answered

in both cases. Whatever need Citibank may have for answers to

interrogatories, this need will be more than adequately served by

one set of answers, which have been ordered to be answered by the

District Court, and which certainly will be available to Tradewinds

and Citibank in preparing for as well as for the trial of this

case, and it is further



ORDERED that the motion of Citibank to permit the filing

with this court of photocopied discovery requests is denied for

the reasons stated in ponneecion with Citibank's motion to compel

answers to its second set of interrogatories, and it is further



ORDERED that the motion of Tradewinds to strike interrogato-

ries addressed to the four newly joined liquidating trustees of

Tradewinds is denied because the basis of the motion--that the

trustees were not parties to whom interrogatories could be sent--

is no longer applicable, and the interrogatories shall be deemed

served on the non~joined parties as of the date of they are served

with the defendants’ crossclaim that names them as parties, and



they shall have 45 days from service to answer the interrogatories.



ELLE...



mag



HENRY’ L. PEUERZE Ga

ATTEST; Judge of the Territori Court



VIOLA E. SMITH’

Administrator/Clerk of the Court