IN THE DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
CAROL ANNE MARIE BRANKER,
Plaintiff,
v.
HOTEL ON THE CAY TIMESHARE
ASSOCIATION and FREDERICK
DANIELS,
Defendants.
and
IN THE MATTER OF THE COMPLAINT
HOTEL ON THE CAY TIMESHARE AS
OWNER OF THE HOTC V FOR
EXONERATION FROM OR LIMITATION
OF LIABILITY
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CIV. NO. 2003-0131
CIV NO. 2003-150
(CONSOLIDATED CASES)
MEMORANDUM OPINION
Finch, Senior Judge
THIS MATTER comes before the Court on the Magistrate Judge’s Report and
Recommendation regarding Hazelwood’s Motion for Attorney Fees and Costs.   For the
following reasons, the Court modifies the Magistrate Judge’s recommended disposition.   
I.
Background
Carol Branker sued Hotel on the Cay Timeshare Association [hereinafter “HTCA”],
Frederick Daniels and Marion Hazelwood in the Territorial Court of the Virgin Islands (now
known as the Superior Court of the Virgin Islands) for causes of action relating to an injury she
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allegedly received aboard a boat owned by the HTCA.  She claimed that Daniels negligently
operated the boat causing her injury.  According to Branker, HTCA is liable for negligently
entrusting Daniels and also has respondeat superior liability.  Branker filed an incident report
with HTCA and claimed that Hazelwood negligently inflicted emotional distress upon her by
sharing that incident report with others and ridiculing her pain and suffering. 
HTCA filed an action for limitation of liability under the exclusive admiralty jurisdiction
of this Court.  Defendants then removed Branker’s Territorial Court action to his Court.  Branker
did not seek a remand.  
Branker voluntarily dismissed her action against Hazelwood with prejudice.  Hazelwood
then moved for costs and attorney fees.  The Court referred the motion to the Magistrate Judge
for a Report and Recommendation.   The Magistrate Judge recommended the denial of costs and
attorney fees.   
Hazelwood has objected to the Report and Recommendation and continues to seek
attorney fees pursuant to 5 V.I.C. § 541(b), and costs pursuant to Rule 54(d)(1) of the Federal
Rules of Civil Procedure.  Branker contends that this Court lack subject matter jurisdiction over
her claims against Hazelwood, and therefore, cannot assess either costs or fees.  She argues that
section 541(b) does not provide for an award of attorney fees in personal injury cases when the
claim is non-frivolous.  Finally, she argues that it would be inequitable to impose costs under
Rule 54(d)(1) when she did not have forewarning that Hazelwood would seek costs, so that she
could have considered such possibility in deciding whether to withdraw her voluntary dismissal. 
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II.
Analysis
A.    
Subject Matter Jurisdiction
Branker contends that removal was not proper in the first place.  Branker has waived any
objections to removal by not raising them within 30 days of the filing of the notice of removal,
except those based on subject matter jurisdiction.  See 28 U.S.C. § 1447(c).      
This Court has subject jurisdiction under its admiralty jurisdiction over Branker’s claims
against HTCA and Daniels.  See 28 U.S.C. § 1333(1).  Hazelwood contends that the Court has
supplemental jurisdiction over Branker’s claim against Hazelwood because “they form part of the
same case or controversy,” having a common nucleus of operative fact.  See 28 U.S.C. § 1367(a); 
see also Leather's Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800, 811 (2d Cir. 1971).  (“[A]
federal court has the power to hear a related state claim against a defendant not named in the
federal claim regardless of whether the federal claim arises in the civil or admiralty
jurisdiction.”).  
Branker’s claim against Hazelwood is interrelated with her claims against HTCA and
Daniels.  If the factfinder were to conclude that Branker suffered serious obvious physical injury
aboard that motor vessel, it would be more likely to find Hazelwood liable and to assess
significant damages.  If, on the other hand the factfinder were to conclude that Branker had
suffered no obvious injury or a very slight injury aboard the motor vessel, and that Branker had
concocted her personal injury claim in response to another dispute with HTCA, the factfinder
would be more likely to find Hazelwood not liable or to award Branker only minimal damages. 
Thus, the claims share a common nucleus of operative fact.  Therefore the Court has
supplemental jurisdiction over Branker’s claim against Hazelwood.  
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B.
Attorney Fees
Hazelwood concedes that negligent infliction of emotional distress constitutes a personal
injury.  Attorney fees are not available to the prevailing party under 5 V.I.C. § 541(b) unless the
personal injury claim is frivolous.  The Court finds that this case has not been sufficiently
developed for it to find the count against Hazelwood to have been frivolous. Thus, the criteria for
awarding attorney fees under 5 V.I.C. § 541(b) have not been met.    
C.    Costs
The Third Circuit recognizes the majority rule that a defendant can be a prevailing party
for the purposes of Rule 54(d)(1) when a plaintiff voluntarily dismisses an action without
prejudice.  In re Paoli R.R. Yard PCB Litigation, 221 F.3d 449, 471 n.10 (3d Cir. 2000). 
Because a dismissal with prejudice affords even more relief than a dismissal without prejudice, if
a dismissal without prejudice renders the defendant the prevailing party, so must a dismissal with
prejudice.  AeroTech, Inc. v. Estes, 110 F.3d 1523, 1527 (10th Cir. 1997).  
Branker’s position that if she had realized that costs might be awarded against her, she
might not have voluntarily dismissed her claim against Branker is not well-founded.  Branker is
charged with knowledge of Rule 54(d)(1) of the Federal Rules of Procedure which provides for
the award of costs to the prevailing party.
Because Hazelwood is the prevailing party, the Court has the discretion to award her
costs.  However, Hazelwood has yet to file a bill of costs as required by 28 U.S.C. § 1920.
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III
Conclusion
After considering the Magistrate Judge’s Report and Recommendation, the Court finds
that, because Plaintiff Carol Branker’s personal injury claim for negligent infliction of emotional
distress against Defendant Marion Hazelwood has not been shown to be frivolous, attorney fees
are not available under 5 V.I.C. § 541(b).  Since Hazelwood is the prevailing party, however,
given that Branker voluntarily dismissed her claim against Hazelwood with prejudice,
Hazelwood may be awarded costs.  
ENTER:
DATE:
July 24, 2009
__________/s/_______________
RAYMOND L. FINCH
SENIOR DISTRICT JUDGE
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