IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX



IRIS ESTICK, PERSONALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF RAHEED SX-09-CV-339

CAESAR AND NEXT OF FRIEND OF RASENOCH

CAESAR, MINOR, AND RODNEY CAESAR, ACTION FOR DAMAGES



Plaintiffs, | JURY TRIAL DEMANDED

Vv.

TIMOTHY REYNOLDS, KAREN REYNOLDS AND



RUTH PFANNER D/B/A POINT PLEASANT

RESORT,



Defendants.



MEMORANDUM OPINION



THIS MATTER is before the Court on Defendants’ Motion to Dismiss for Improper

Venue, filed on August 19, 2009. On October 1, 2009, Plaintiffs filed an Opposition to

Defendants’ Motion to Dismiss. On October 9, 2009, Defendants filed a Reply to Plaintiffs’

Opposition.



FACTS



Plaintiff Iris Estick is a resident of St. Croix, U.S. Virgin Islands. She is the mother of

Raheed Caesar and is the personal representative of his estate. Defendant Timothy Reynolds,

Defendant Karen Reynolds and Defendant Ruth Pfanner are residents of St. Thomas, U.S. Virgin

Islands. Defendant Point Pleasant Resort is located in St. Thomas, U.S. Virgin Islands. In

October 2008, Plaintiff Iris Estick made reservations to stay at Defendant Point Pleasant Resort

with two of her children, deceased Raheed Caesar and Plaintiff Rasenoch Ceasar. While staying

at Defendant Point Pleasant Resort, Raheed Caesar spotted the Swimming Pool sign and told

Plaintiff Iris Estick that he wanted to go to the pool. Plaintiff Iris Estick told Raheed Caesar to



stay in their hotel room and that they would go to the pool after Plaintiff Iris Estick was done

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Memorandum Opinion



Page 2



bathing Plaintiff Rasenoch Caesar and herself. About 10-15 minutes into the shower, Plaintiff

Iris Estick heard a loud continuous beating at the door. Upon answering the door, an employee

of Defendant Point Pleasant Resort yelled for Plaintiff Iris Estick to go with him. Plaintiff Iris

Estick responded that she could not go with him in the condition she was without a reason. The

employee then told her that her son has drowned. When Plaintiff Iris Estick and Plaintiff

Rasenoch Caesar arrived at the pool, Raheed Caesar was on his back with EMT and others

around him.



A hotel guest had seen Raheed Caesar in trouble in the pool and had jumped into the pool

in an attempt to rescue Raheed Caesar. However, the hotel guest lost her grasp of Raheed Caesar

and he went to the bottom. At that point, the hotel guest had to go for help because she was

unable to get Raheed Caesar up from the bottom by herself. Together with the new found help,

the hotel guest was able to get Raheed Caesar out of the pool and pump out some of water from

Raheed Caesar before the EMT arrived. Plaintiff Iris Estick and Plaintiff Rasenoch Caesar

watched the EMT try to resuscitate Raheed Caesar. The EMT was able to get a faint pulse on

Raheed Caesar and transported him to the Roy Schnieder Hospital Emergency Room. Shortly

after, Raheed Caesar died in the Emergency Room.



In July 2009, Plaintiffs filed a Complaint against Defendants, alleging pain and suffering,

lost income, lost of love and affection, severe emotional distress, mental anguish, and loss of



enjoyment of life.' Plaintiffs also asked for punitive damages against Defendants for their



' Relevant parts of Plaintiffs’ Complaint:



28. Raheed Caesar suffered trying to save himself from drowning and the panic, mental anguish and suffering

associated with that and the horrible physical and mental anguish and suffering associated with that and the

horrible physical and emotional pain of drowning and the pain of attempting to bring him back to life and

his attempts to cling to life and not to die.



29. Iris Estick suffered seeing her son drowned, watching the EMT’s attempt to bring him back to life and

watching her son struggle to try and live.

IRIS ESTICK, ET AL, V. TIMOTHY REYNOLDS, ET AL.

$X-09-CV-339

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Page 3



“reckless disregard for the rights and interests of small children in general and the Raheed Caesar



in particular.”



venue.



DISCUSSION



Motion to Dismiss for Improper Venue



Fed. R. Civ. P. 12(b)(3) provides that a party may file a motion to dismiss for improper



In the U.S. Virgin Islands, Title 4 of the Virgin Islands Code (hereinafter, “V.I.C.”),



Section 78 governs venue. Title 4 V.I-C. § 78 provides that,



(a) All civil actions shall be initiated in the judicial division where the defendant

resides or where the cause of action arose or where the defendant may be served

with process. Criminal actions shall be brought in the judicial division in which

the alleged criminal offense was committed. Actions of criminal conspiracy may

be brought in either division in which any of the alleged overt acts were

committed.



(b) For the convenience of parties and witnesses and in the interest of justice, a

judge of the Superior Court may, with the approval of the presiding judge of such



30.



31.

32.

33.

34,



35.



36.



37.



38.



39,



40.



Rasenoch Caesar watched his brother being treated by the EMTs, being drowned and trying to bring his

brother back to life.



Rodney Caesar suffered seeing his son dead and burying his son.

The Estate of Raheed Caesar has lost the income that he would have earned.

Raheed Caesar lost his life and the love and affection of his parents and siblings.



The Estate lost the love and affection of Raheed Caesar and the contributions he would have made during

his life.



Plaintiff Iris Estick suffered severe emotional distress by the way she was told her son had drowned and

seeing her son drowned.



Plaintiff Rasenoch Caesar suffered severe emotional distress by the way he was told his brother had

drowned and seeing his brother drowned.



Plaintiff Estick and Rasenoch Caesar and Rodney Caesar suffered mental! anguish, pain and suffering, and

loss of enjoyment of life all of which are expected to continue into the foreseeable future.



The Defendants never contacted the Plaintiffs, never apologized and never took responsibility for their

actions and inactions.



The Defendants knew young children stayed at its premises and took no actions to prevent them from

entering the pool and no actions to prevent them from drowning.



The actions of the Defendants were done with such a reckless disregard for the rights and interests of small

children in general and the Raheed Caesar in particular as to entitle the Plaintiffs to an award of punitive



damages.

IRIS ESTICK, ET AL. V. TIMOTHY REYNOLDS, ET AL.

SX-09-CV-339



Memorandum Opinion



Page 4



court, transfer any action or proceeding pending in one judicial division to the

other judicial division for hearing and determination.



As noted in Title 4 V.I.C. § 78(b), the Court may transfer the case to a proper venue in

the alternative to dismissing a case for improper venue. Title 28 of the United States Code

(hereinafter “U.S.C”), Section 1404(a) also addresses the change of venue. Title 28 U.S.C. §

1404(a) allows a Court to transfer an action to any other district or division where it could have

been brought, if convenient to the parties and witnesses, and in the interest of justice.” The

languages used in Title 28 U.S.C. § 1404(a) and Title 4 V.I.C. § 78(b) are identical: “For the

convenience of parties and witnesses, in the interest of justice...” Therefore, it is helpful to look

at the District Court of the Virgin Islands and the Third Circuit’s interpretation of Title 28 U.S.C.

§ 1404(a) when interpreting Title 4 V.LC. § 78(b).



While Plaintiff's choice of forum is entitled to paramount consideration, the burden is on

the moving party to prove that an alternative forum would be more convenient for it and that

Plaintiff would not be substantially inconvenienced by the transfer. Bostic v. AT&T of the Virgin

Islands, 2000 WL 34627712, 1 (D.V.1., 2000). In other words, the moving party has the burden

to establish that a balancing of proper interests weighs in favor of the transfer. Jd. “The decision

to transfer rests within the sound discretion of the court which must consider all the factors listed

in the statute.” Jd. While there is no set formula or list of factors for the courts to considering

proper/improper venue, courts have considered may variants of the private and public interests

protected by the language of Title 28 U.S.C. § 1404(a). Jumara v. State Farm Ins. Co., 55 F.3d



873, 880 (3d Cir. 1995).



2 Title 28 U.S.C. § 1404(a) provides: “For the convenience of parties and witnesses, in the interest of justice, a

district court may transfer any civil action to any other district or division where it might have been brought.”

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Whether This Matter is Properly Filed in St. Croix Division



Defendants argue that, according to Title 4 V.I.C. § 78, this matter shouid be dismissed

and re-filed in the St. Thomas/ St. John Division. Defendants point out the following: (1) the

incident that brought about this lawsuit occurred in St. Thomas; (2) the pool and the real property

at issue in this lawsuit are located in St. Thomas; (3) there is an issue of real property ownership

in this case that will be dictated by the land records in St. Thomas; (4) Defendant Timothy

Reynolds, Defendant Karen Reynolds and Defendant Ruth Pfanner are residents of St. Thomas

with no connections to St. Croix; (5) Defendant Point Pleasant Resort is located in St. Thomas

with no connection to St. Croix; (6) aside from Plaintiffs, all of the witnesses (such as the hotel

guest, the hotel employees, the responding EMT, the Emergency Room attendants, etc.) are

located in St. Thomas; and (7) Plaintiffs availed themselves to the St. Thomas venue by coming

to St. Thomas. In summary, Defendants contend that the only relevance of St. Croix to this case

is that Plaintiffs reside there.



Defendants argue that, in fact, Title 4 V.I.C. § 78 mandates this case to be brought in St.

Thomas. In their Motion to Dismiss, Defendants stated that, “[I}f this Court transferred the case

to St. Thomas rather than dismissed it, Defendants will not object. However, even though the

criteria for transfer, even though met here, are not required as the statute mandates the case be

brought in St. Thomas in the first instance to give the Court jurisdiction to hear the case in

chief.” (Defendants’ Motion to Dismiss for Improper Venue, at 1) Defendants point out that

courts have transferred cases between divisions when the defendant was inconvenienced and/or

third party witnesses may be inconvenienced or when the case was filed in the division solely for



the convenience of the plaintiff and her attorney. Bostic, 2000 WL 34627712. Additionally,

IRIS ESTICK, ET AL. V. TIMOTHY REYNOLDS, ET AL.

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Defendants request the Court for fees and costs related to filing this Motion To Dismiss for

Improper Venue.



Plaintiffs argue that this matter should not be dismissed or transferred to St. Thomas/ St.

John Division because Plaintiffs, their fact witnesses and their expert witnesses would all be

seriously inconvenienced and subjected to significantly greater expense. Plaintiffs point out that,

despite alleging inconvenience as Defendants’ primary reason for dismissal/transfer for improper

venue, Defendants never provided any affidavit supporting that contention. Plaintiffs contend

that the witnesses who were present at the time of Raheed Caesar’s drowning, witnesses who

observed Raheed Caesar’s injuries, witnesses who will describe Raheed Caesar’s life as an

individual, and witnesses as to Raheed’s pain and suffering all reside in St. Croix.’ (Plaintiffs’

Opposition to Defendants’ Motion to Dismiss for Improper Venue, at 2) Moreover, Plaintiffs

contend that, since Defendants advertised and solicited businesses in St. Croix, and thereby have

minimum contacts with St. Croix.’ Accordingly, Plaintiffs argue that Defendants should have



reasonably expected to be sued in St. Croix.



? Plaintiffs point out that Nancy Rogers and Jeanne Bowen, the hotel guests who witnessed Raheed Caesar’s fall into

the pool, do not reside in the U.S. Virgin Islands. Therefore, Plaintiffs argue that it would be equally convenient for

Nancy Rogers and Jeanne Bowen to testify in St. Croix. Plaintiffs further point out that since they plan on calling

the only witnesses from St. Thomas, the EMT and the Emergency Room attendants, Plaintiffs will bear the costs of

bringing them to trail, at no cost or inconvenience to Defendants.



According to Plaintiffs, they also plan on calling the following witnesses: Plaintiff Iris Estick, Plaintiff Rodney

Caesar (father of Raheed Caesar), Rasenoch Caesar (brother of Raheed Caesar), Donna Samuel (neighbor of Caesar

Family), Ronald Milligan (godfather of Raheed Caesar), Kimo Urgent (friend of Raheed Caesar), Kent Moorhead

(former school principal of Raheed Caesar), Carol Benjamin Grandmother of Raheed Caesar), James Caesar (uncle

of Raheed Caesar), Raheed Caesar’s St. Croix school teachers, Raheed Caesar’s physicians, Raheed Caesar’s

friends, Raheed Caesar’s relatives, Raheed Caesar’s religious consultants, Plaintiffs’ St. Croix

friends/family/physicians/counselors, who will testify as to Plaintiffs’ loss and mental anguish and medical

treatment.



‘ Plaintiffs allege that Defendants have offered Seaborne Airlines’ St. Croix employees, including Plaintiff Iris

Estick, a discounted rate to stay at Defendant Point Pleasant Resort. Defendants disagree with Plaintiffs’ assertion.

Defendants explain that Plaintiff Iris Estick is acquainted with the manager of Defendant Point Pleasant Resort

through her employment with Seabome Airlines. The manager told Plaintiff Iris Estick that he would giver her a

discount if she stayed at Defendant Point Pleasant Resort, which he did when Plaintiff Iris Estick requested it.

IRIS ESTICK, ET AL. V. TIMOTHY REYNOLDS, ET AL.

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Plaintiffs claim that it is well settled that in determining venue, the courts have held that

the moving party bears the burden of establishing the need for a transfer and has the burden of

persuasion. See Jumara, 55 F.3d at 879.° Plaintiffs argue that Defendants have failed to meet

their burden here for the following reasons: (1) Defendants incorrectly stated that all witnesses

reside in St. Thomas; and (2) Defendants failed to identify the names, addresses and testimony of

any other witnesses and explain the inconvenience caused by trying this case in St. Croix.

Plaintiffs further highlight that Defendants were properly served with process, in accordance

with Fed. R. Civ. P. 4., in St. Thomas by the Superior Court of the Virgin Islands Division of St.

Croix and. therefore, venue is proper under Title 4 V.I.C. § 78(a). Accordingly, Plaintiffs

maintain that the St. Croix Division is the proper venue for this matter. In the alternative,

Plaintiffs argue that the case should be transferred rather than dismissed to avoid undue delay

and cost.



In regards to Defendants’ request for costs and fees related to filing their Motion To

Dismiss for Improper Venue, Plaintiffs ask the Court to deny Defendants’ request. First,

Plaintiffs argue that Defendants have not cited any local or federal rule or statute in support of

their request. Second, Plaintiffs argue that they have filed their Complaint in the St. Croix

Division in good faith based on their residency.



In their Reply to Plaintiffs’ Opposition, Defendants reemphasize that they are not

requesting a discretionary venue change but a mandatory venue change pursuant to Title 4 V.I.C.



§ 78. Title 4 V.I.C. § 78(a) stated, “All civil actions shall be initiated in the judicial division...



> In their Opposition, Plaintiffs also cited to Borghi v. Purple Group, where the District Court determined that the

defendants failed to meet their burden of establishing that the private and public interest factors weighed in favor of

transferring the case under forum non conveniens. 2009 WL 1404752 (D.V.I., 2009). The Court does not find

forum non conveniens arguments applicable here because that is not what Defendants argued. In their Motion to

Dismiss For Improper Venue, Defendants argued that filing this matter in the St. Croix Division is improper under 4

V.LC. § 78.

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where the defendant may be served with process.” Defendants point out that Fed. R. Civ. P. 4

addresses procedural issue of perfecting service of process and is irrelevant to the issue of

improper venue here. Defendants were served in St. Thomas. Defendants argue that they cannot

be served with process in St. Croix and were not served with process in St. Croix because they

are not on St. Croix. Defendants further argue that Plaintiffs are misleading in the list of

witnesses they plan on calling to testify at trial. According to 5 V.I.C. § 76, the wrongful death

statute, limits damages to pain and suffering to parents only. Thereby, Defendants assert that all

the family and friends referred to by Plaintiffs are not witnesses to alleged emotional pain and

suffering. Defendants maintain that majority of the witnesses, aside from Plaintiffs, are located

on St. Thomas. Consequently, Defendants argue that this matter is improperly filed in the St.

Croix Division. Moreover, Defendants request the Court to certify this issue for appeal if this

matter is allowed to continue in the St. Croix Division.



The Court finds that this matter is improperly filed in the St. Croix Division. This matter

involves Raheed Caesar’s unfortunate death at Defendant Point Pleasant Resort, located in St.

Thomas. All the Defendants and most of the eyewitnesses, such as the hotel guests, the hotel

employees, the responding EMT, the Emergency Room attendants, are also located in St.

Thomas. Although Defendants may be served with process in St. Croix, they were all served in

St. Thomas. Consequently, according to Title 4 V.I.C. § 78(a), the proper venue for this matter

is in the St. Thomas/ St. John Division.



Whether This Matter Should Be Dismissed or Transferred



Both Plaintiffs and Defendants have already advised the Court that they will not object to

the Court transferring this matter instead of dismissing it altogether. Plaintiffs’ ties to St. Croix



and other witnesses Plaintiffs plan on calling, such as Raheed Caesar’s family and friends, who

4



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Page 9



may reside here are substantially less compelling than the inconvenience that Defendants and the

witnesses would suffer if this matter proceeded in St. Croix. Upon consideration of all the

factors, the Court finds that Defendants have established that the balance of inconvenience

weighs in favor of this matter proceeding in the St. Thomas/ St. John Division. Accordingly,

rather than dismissing this matter, upon the approval of the presiding judge, the Court will

transfer this matter to the St. Thomas/ St. John Division. See Title 4 V.I.C. § 78(b). In regard to

Defendants’ request of fees and costs related to the filing of the Motion to Dismiss for Improper

Venue, Defendants failed to cite any support for their request. Nothing in the statutes indicates

that Plaintiffs should pay Defendants’ fees and costs related to the dismissal/transfer for

improper venue. The Court also does not find that Plaintiffs filed this matter in the St. Croix

Division in bad faith. Therefore, the Court will deny Defendants’ request for fees and costs

related to the filing of the Motion to Dismiss for Improper Venue.

CONCLUSION



. The Court finds that this matter was improperly filed in the St. Croix Division. Pursuant

to 4 V.1.C. § 78(b), the Court will transfer this matter to the St. Thomas/ St. John Division.

Accordingly, the Court will deny Defendants’ Motion to Dismiss for Improper Venue. The

Court will also deny Defendants’ requests for fees and costs related to the filing of the Motion to



Dismiss for Improper Venue.



DONE and so ORDERED this Za day of September, 2010.

ATTEST: Lf EPL A



Venetia Harvey- Velasquez HAROLD W.'L. WILLOCKS



Judge of the S perion < Cc CO

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VENETIA H. oY EL AZQUEZ, ESQ.

CLEBA OF THE.COURT



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