IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. THOMAS AND ST. JOHN



DERRICK CALLWOOD,

Plaintiff,

Vv. CASE NO. ST-15-CV-623



GOVERNMENT OF THE VIRGIN ISLANDS

and the VIRGIN ISLANDS POLICE DEPARTMENT,



Defendants.



MEMORANDUM OPINION



Pending before the Court is Defendants’ January 22, 2016, Motion to Dismiss.' For the



following reasons, Defendants’ Motion will be granted.

RELEVANT FACTUAL AND PROCEDURAL HISTORY



Plaintiff filed a Complaint on November 30, 2015, against the Government of the Virgin

Islands and the Virgin Islands Police Department for terminating Callwood in December 2013 as

a detective with the Virgin Islands Police Department. Plaintiffs termination stemmed from his

arrest on October 8, 2013, for domestic violence charges against his then girlfriend Tamika Brooks.

The Government and the Police Benevolent Association are parties to a Collective Bargaining

Agreement, under which Callwood’s termination was arbitrated on J uly 14, 2015, before Arbitrator

Lorin Kleeger. On October 17, 2015, Callwood’s termination of employment was affirmed by

Arbitrator Kleeger. Plaintiff now seeks a declaratory judgment vacating the October 17, 2015,



award, and reinstatement to his previous position.



' Plaintiff responded on February 22, 2016, and Defendants replied on March 7, 2016.

Callwood y. GY] et. al

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STANDARD



A motion asserting a defense under Federal Rule of Civil Procedure 12(b) must be raised

by the party before filing a responsive pleading.” According to Federal Rule of Civil Procedure

12(b)(6), a defendant may test the sufficiency of the pleadings by seeking dismissal for the

plaintiff's “failure to state a claim upon which relief can be granted.”? Generally, when

considering such a motion, the Court must first identify the elements of a claim and identify the

items the Plaintiff must sufficiently plead.* The Supreme Court of the Virgin Islands has explained

that “a claim requires a complaint with enough factual matter (taken as true) to suggest the required

element.” > Thereafter, the Court can liberally construe the pleadings to the extent permitted by the

pleading requirements of Federal Rule of Civil Procedure 8° and “accept as true all well-pleaded

allegations in the complaint” in favor of the plaintiff.” While “the Court must take all of the factual

allegations in the (cJomplaint as true, courts are not bound to accept as true a legal conclusion



couched as a factual allegation.”



* Fep. R. Civ. P. 12; see Fleming v. Cruz, 62 V.1. 702, 710 (V.1. 2015) (“[T]he Court relies on the principles espoused

in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), and construes pleading requirements

under Rules 8(a) and 12(b)(6) of the Federal Rules Civil Procedure. Federal Rules 8 and 12 are made applicable to the

Superior Court by Superior Court Rule 7....”).



3 Feb. R. Civ. P. 12(b)(6).



4 Pollara v. Chateau St. Croix, LLC, 58 V.1. 455, 458 (V.I. 2013).



5 Brady v. Cintron, 55 V.1, 802, 822-23 (V.I. 2011); Robles v. HOVENSA, L.L.C., 49 V.1. 491, 494 (V.L 2008)

(citations and internal quotations omitted).



® Iqbal, 556 U.S. at 678 (“the pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but

it demands more than an unadormed, the-defeendant-unlawfully-harmed-me accusation”) (citing Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007).



7 Joseph v. Bureau of Corrs., 54 V1, 644, 649-50 (V.I. 2011) (internal quotations and citations omitted); see also Gov't

Guarantee Fund v. Hyatt Corp., 166 F.R.D. 321, 325-26 (D.V.I. 1996) aff'd sub nom (“(I]n considering a motion to



dismiss under Rule 12(b) (6), the Court must accept as true the well-pleaded allegations in the complaint . . . . [T]he

plaintiff is required to set forth sufficient information to outline the elements of his claim or to permit inferences to be

drawn that these elements exist... .”) (internal citations omitted).



8 Webster v, CBI Acquisitions, LLC, 2012 WL 832044, at *1 (V.I. Super. Ct. 2012) (citing Papasan v. Allain, 478 U.S.

265, 286 (1986)).

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The Supreme Court of the Virgin Islands has further instructed that “{t]he plausibility

determination is a ‘context-based’ determination which should be guided by the court's ‘judicial

experience and common sensc.’”” “Plausibility requires that the plaintiff allege facts that are more

than simply ‘consistent with a defendant's liability’ and must permit the court to infer more than

the mere possibility of misconduct.”"” Only after satisfying this multi-step analysis can a party

survive a motion to dismiss.



ANALYSIS



Plaintiff asserts first that Arbitrator Klecger violated the forty-five (45) day requirement

for issuing a decision under Article V, Section 2 (C) of the Collective Bargaining Agreement and

that Arbitrator Kleeger exceeded his powers under Section 10(a)(4) of the Federal! Arbitration Act

(“FAA”). Defendants contend that Callwood has failed to state a cause of action upon which relief

can be granted in his Complaint because the Arbitrator did not exceed his authority or violate the

CBA in his decision and because Plaintiff seeks extraordinary relief from the Court outside the

scope of the CBA.



The Superior Court has jurisdiction over the “violation of contracts between a public

employer and an exclusive representative, or between labor organizations... without respect to the

amount in controversy or without regard to the citizenship of the parties.”!! Nevertheless,



“plaintiffs suing government agencies may be statutorily or judicially required to first exhaust any



° Joseph, 54 V.1. at 650 (citing Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009)) (quoting Igbal, 129 S.

Ct. at 1950).



° Id. (citing Fowler, 578 F.3d at 211) (quoting /gbal, 129 S. Ct. at 1949).



'! 24 V.LC. § 383 (“Suits for violation of contracts between a public employer and an exclusive representative, or

between labor organizations, may be brought in any court of this Territory having jurisdiction of the parties ... without

respect to the amount in controversy or without regard to the citizenship of the parties.”); Joseph, 54 V.1. at 651 (The

Legislature “has expressly conferred the Superior Court with Jurisdiction over all civil actions, including lawsuits

alleging violations of collective bargaining agreements.”) (citing 4 V.LC. § 76(a))).

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available administrative remedies before seeking redress through the Court.”!? “Exhaustion in such

cases is discretionary,” but the court may require the exhaustion of all administrative remedies

depending on the circumstances of the case.'3



Plaintiff alleges that “[n]Jo prior application for relief requested in this complaint has been

made in any forum. All administrative remedies have been exhausted in that Plaintiff Callwood

has pursued all avenues in the parties [sic] Collective Bargaining Agreement.”!4 This, however, is

a legal conclusion couched as a factual allegation, which the Court is not bound to accept as true.

Therefore, while the Court has discretion, the Complaint does not allege any facts regarding the

administrative remedies from the CBA that were exhausted prior to the institution of this judicial

proceeding.



Additionally, Plaintiff asks the Court to vacate the arbitration award because of the

Arbitrator’s failure to issue a decision within forty-five (45) days, claiming this is a breach of an

express term of the CBA." Defendants argue that nothing in the contract provides for an

Arbitrator’s decision to be vacated for failure to render a decision within that time limit.



To establish a claim for breach of contract, a party must plead that a contract existed, that

there was a duty created by the contract, that such duty was breached, and that the party suffered

damages as a result of the breach.!® Here, the CBA establishes that the parties shall “select an



arbitrator from a list of five arbitrators from either PERB or the American Arbitration



2 Pate v, Gov't of the V.L, 2014 V.1. LEXIS 1 12, *14 (VE. Super. Ct., Dec. 11, 2014) (citations omitted).



"3 Jd, at 10-11,



'S Compl. 44.



'S See Compl. 4 | 33-36; see Ex. A, CBA Article V, Section 2 (C).



'® Merchants Commercial Bank v. Oceanside Village, Inc., 2015 V.I. LEXIS 146, *9 (V1. Super. Ct., Dec. 18, 2015)

(“Given that a plaintiff in the Virgin Islands has had to prove the same elements for a breach-of-contract claim that it

would have to prove in any other jurisdiction in the United States, the soundest rule for the Virgin Islands is to

perpetuate the rule stated by the Supreme Court of the Virgin Islands in Chapman v. Cornwall, having now subjected

same to a Banks analysis.”).

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Association.”'? Callwood relies on Article V, Section 3, which states “the Arbitrator shall not have

the authority to add, subtract, nor modify the written provisions of this Agreement,” to further

bolster his argument that the Arbitrator’s award needs to be vacated for his failure to render a

decision within forty-five (45) days. Although Plaintiff states that “(t]he CBA required the

Arbitrator to issue a decision no later than August 29, 2015”!® and that “Arbitrator Kleeger failed

to render a decision within 45 days despite repeated requests that he do so,”!* Callwood has not

alleged any facts to indicate that the forty-five (45) day deadline was in fact binding on the

Arbitrator, since the Arbitrator was not a party to the CBA.”° Further, Plaintiff has failed to allege

facts that establish that Plaintiff suffered harm as a result of the delay of the Arbitrator’s decision.



Additionally, Plaintiff attacks the Arbitration award based on the standards of the Federal

Arbitration Act, 9 U.S.C. §10(a)(1)-(4), while Defendant requests dismissal because Callwood

failed to allege facts to show that the Arbitrator was biased in his decision.”! It is questionable

whether the FAA applies in this jurisdiction22 In Gov't of the V.I. v. United Indus., Transp., Prof,

& Gov't Workers of N.A.,” the Supreme Court of the Virgin Islands reiterated that “the FAA is



premised on Congress's power to regulate interstate commerce — and not Congress's plenary



'" See Def.’s Motion to Dismiss, Exhibit A, Article V, Section 2 (B).



'" Compl. 4 35.



'° Compl. 936.



© On July 14, 2015, the parties commenced arbitration. Plaintiff alleges that based on Article V, Section 2 (C) of the

CBA, the Arbitrator was tequired to issue a decision within 45 days, or by August 29, 2015.



*!“The scope of Judicial review, therefore, is whether the arbitrator acted in manifest disregard of the law, not whether

the award was made in error.” Def.’s Mot. to Dismiss, at 3 citing Bouton v. Gov't of the V.1., 28 V1. 211 (3d. Cir.

1993).



** See Gov't of the V.I. v. United Indus., Th ransp., Prof. & Gov't Workers of N.A., No. 2015-0060, _ VI, , 2016

V.I. Supreme LEXIS 2, at *14-17 n3 (V.I. Jan. 13, 2016) (“But even if we were to overlook the Union's failure to

comply with our rules, its argument clearly lacks merit. To the extent the FAA even applies to this matter, this Court

previously distinguished between the substantive and procedural aspects of the FAA, and concluded that the provisions

of the FAA that merely establish procedures in the federal system — such as those pertaining to jurisdiction, or that

establish filing deadlines — do not preempt local law.” Allen v. HOVENSA, LLC, 59 V.L. 430, 435 (V.I. 2013): see

also VI. Water & Power Auth. v. Vl. Water & Power Auth., Prof. & Tech. Emples. Union, 2016 V.1. LEXIS 34, *4.

7 (V.I. Super. Ct., Apr. 14, 2016).



“No. 2015-0060, VI. —»_» 2016 V.I. Supreme LEXIS 2, at *14-17 13 (V.I. Jan. 13, 2016).

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Memorandum Opinion, Junc 29, 2016

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powers under the territorial clause,” and thus “a contract comes within the purview of the FAA

only when an interstate nexus is shown.’4 Further, the court recognized that “some courts have

held that section 10 of the FAA is among the procedural provisions of the FAA that do not apply

to state and territorial courts even if an action otherwise comes within the purview of the FAA,

unless agreed to in the arbitration agreement.” Nevertheless, the court simply held that the FAA

did not apply in that particular case and, instead, reviewed the Arbitrator’s decision based on

whether the arbitrator applied the terms of the CBA rather than imposing his own brand of justice.26

Here, neither party alleges that the CBA incorporated the FAA as a term of the contract, or that

the CBA involved commerce.?’ Accordingly, the Court reviews the arbitrator’s decision to

determine whether he acted within the terms of the parties’ CBA or exceeded his authority.78

While Callwood alleges that the Arbitrator ignored a conflict of interest created by former

police commissioner Rodney Querrard, that Ms. Brooks recanted her statement that she was

assaulted, and that the criminal charges against Plaintiff were dismissed, Plaintiff fails to cite to a

violation of a specific portion of the CBA by the Arbitrator. Further, Callwood indicates the



arbitrator’s disregard of the conflict raises serious concems about the arbitrator’s impartiality in



*4 Id. (citations omitted) (collecting cases) (“We do not interpret the jurisprudence concerning the FAA to include any

and every contract containing an arbitration clause. [T]he question is simply whether the contract evidences a

transaction involving commerce ... . [I]t is the burden of the party seeking to compel arbitration to prove that the

contract at issue involves commerce.” (internal quotations and citations omitted)).



*> United Indus., Transp., Prof, & Gov't Workers of N.A., 2016 V.1. Supreme LEXIS 2, at *22-23 (internal citations

and citations omitted).



26 Id. at *35-36,



2” Considering that the CBA was executed between the Government of the Virgin Islands, the Virgin Islands Police

Department, and the Police Benevolent Association, the Union for the VIPD, it is highly unlikely that the parties

would be able to establish that the contract involved interstate commerce.



28 See United Indus., Th ransp., Prof, & Gov't Workers of N.A., 2016 V.L. Supreme LEXIS 2, at *24 (“We need not

decide whether this deferential standard of review should apply, however, because the arbitrator clearly exceeded his

powers under the collective bargaining agreement, 9 U.S.C. § 10(a)(4), to the extent that he imposed his ‘own brand

of industrial justice’ rather than attempting to apply the terms of the collective bargaining agreement.”); V.. Water

& Power Auth., Prof, & Tech. Emples, Union, 2016 V.I. LEXIS 34, *7.

Callwood v. GVT et. al

ST-15-CV-623



Memorandum Opinion, June 29, 2016

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the case, but, again, Plaintiff fails to allege any facts to demonstrate any violation of the CBA.

Instead, the arguments Callwood presents in his Complaint are nearly identical to the arguments

made during arbitration. In the substantive issues portion of the Arbitrator’s decision, the

Arbitrator recognized that termination of employment was justified under section 4.5.2 for illegal

acts performed off duty, and also within section 4.5.1 as misconduct reflecting discredit upon the

Department. While the Court recognizes that the Arbitrator could have reached a different

conclusion, without facts indicating that the Arbitrator exceeded his authority under the CBA,

Plaintiff's Complaint must be dismissed.

CONCLUSION



Accordingly, because the Complaint fails to contain factual allegations that plausibly

suggest Plaintiff exhausted all administrative remedies provided for in the CBA or that exhaustion

is excused, the first cause of action, breach of the collective bargaining agreement, is premature.

Nonetheless, the Court must give Plaintiff an opportunity to amend the Complaint, unless

amendment would be futile.’ “An amendment would be futile if the complaint, as amended, would

fail to state a claim upon which relief could be granted.” Here, the Court finds that allowing

Plaintiff to amend the Complaint to include allegations regarding the exhaustion of administrative

remedies and breach of contract would not be futile. Moreover, the Court will allow Plaintiff to

amend the Complaint to include citations to portions of the CBA the arbitrator violated.



Accordingly, Defendants’ January 22, 2016, Motion to Dismiss is granted, but the Court will grant



29 James-St. Jules v. Thompson, 2015 V.1. LEXIS 74, at *12-13 (V.I. Super. Ct., June 15, 2015) (citing Alston v.

Parker, 363 F.3d 229, 235 (3d Cir. 2004)).

% Id, at 13 (citing Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 2010)).

Callwood v. GYI et. al



ST-15-CV-623



Memorandum Opinion, June 29, 2016



Pave 8 of 8



Plaintiff leave to amend the Complaint



in accordance with the holding of this Memorandum



Opinion.



Dated: June27, 2016



HON. MICHAEL C. DUNSTON



ATTEST: Estrella H. George



Acting Clerk of Court



i



JUDGE OF THE SUPERIOR COURT



OF THE VIRGIN ISLANDS



by:



Lori Boynes-Tyson



Court Clerk Supervisor



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