IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX



VIAN TOUTOUYOUTE, )

Plaintiff, ) CASE NO. SX-16-CV-457

V. )

ST. CROIX TRADING COMPANY, INC, ? A ORY Sere ee

and LUZ RODRIQUEZ, an

Defendants. )



MEMORANDUM OPINION AND ORDER



THIS MATTER comes before the Court on Defendant St. Croix Trading Company, Inc.

(St. Croix Trading)’s Motion to Dismiss (Motion), filed October 25, 2016. When Plaintiff failed

to respond, the Court ordered that the matter come on for hearing on January 19, 2017, which

hearing was continued to February 2, 2017. Plaintiff's counsel failed to appear at the hearing or to

otherwise advise the Court. Four days later, by Notice to the Court and Opposing Counsel, filed

February 6, 2017, counsel stated that he had been unable to attend the February 2 hearing, citing

“an emergency at our law office” and “rotating power outages.” By Order entered March 20, 2017,

Plaintiff was ordered to show cause within ten days “why the Court should not rule on Defendant

St. Croix Trading Co.’s Motion to Dismiss without response from Plaintiff.” More than a year has

passed and Plaintiff has failed to respond to St. Croix Trading’s Motion, and has not sought leave

to amend his Verified Complaint (Complaint) to address the claimed deficiencies. Neither has

Plaintiff filed anything else or taken action of any type to prosecute his case. On April 30, 2018,

Plaintiff filed a Notice of No Objection to Mediation.



This controversy arises from Plaintiff's agreement to build a porch on Defendant Luz

Rodriquez’s home. Complaint, § f. Plaintiff alleges that he received a “down payment to secure

materials and begin the construction,” then “purchased materials from St. Croix Trading company

and retained the receipt.” Jd. J g-h. Defendant Rodriquez was unhappy with the way construction

was proceeding and went to St. Croix Trading to discuss Plaintiff's work, at which time both

Defendants allegedly exchanged then later spread false information ultimately impacting



Plaintiffs income and damaging his professional reputation. See id. Jf i-m.

Toutouyoute v. St. Croix Trading & Rodriquez; SX-15-CV-457

Memorandum Opinion and Order

Page 2 of 7



Legal Standard



The Motion was filed prior to the March 31, 2017 effective date of the Virgin Islands Rules

of Civil Procedure, and is based upon Fed. R. Civ. P. 12(b)(6), then applicable through Super. Ct.

R. 7.! The Virgin Islands is a notice pleading jurisdiction which, following the adoption of the

Virgin Islands Rules of Civil Procedure, determines the sufficiency of a plaintiff's complaint upon

whether it “adequately alleges facts that put an accused party on notice of claims brought against

it.” Mills-Williams v. Mapp, 2017 V.I. Supreme LEXIS 35, at *11, 12 (V.I. 2017) (citing VI. R.

Civ. P. 8(a)). Contrary to the former Jgbal/Twombly plausibility standard,” the new rule endorses

“an approach that declines to enter dismissals of cases based on failure to allege specific facts

which, if established, plausibly entitle the pleader to relief.” Jd. (emphasis in original) (quoting

V.I. R. Civ. P. 8, Reporter’s Note). However, this more relaxed pleading standard does not

completely preclude dismissal for failure to state a claim upon which relief can be granted under

Rule 12(b)(6). A complaint still must set forth “a short and plain statement of the claim showing

that the pleader is entitled to relief.” V.I. R. Civ. P. 8(a)(2).



In his Complaint, Plaintiff pleads three causes of action: 1) breach of contract, 2)

conversion, and 3) defamation. The Complaint generally fails to distinguish between Defendants

St. Croix Trading and Luz Rodriquez. A fair and deferential reading reveals no statement of

Plaintiff's claims against St. Croix Trading sufficient to show “that the pleader is entitled to relief”

on Counts I and II. As such, for the reasons set forth below, St. Croix Trading’s Motion will be



granted as to Counts I and II, and denied as to Count III.

Count I: Breach of Contract



To succeed on a breach of contract claim, a plaintiff must show four elements: “(1) an

agreement, (2) a duty created by that agreement, (3) a breach of that duty, and (4) damages.” Phillip

v. Marsh-Monsanto, 66 V.I. 612, 620 (V.I. 2017) (collecting cases). At the pleading stage as to his

breach of contract claim against St. Croix Trading, Plaintiff's Complaint must set forth “a short



and plain statement of the claim showing that the pleader is entitled to relief,” sufficient to put St.



' The Motion is nonetheless determined pursuant to V.I. R. Civ. P. 12(b)(6), as the Court makes no finding that its

application in this case would be infeasible or work an injustice. See V.I. R. Civ. P. 1-1(c)(2).



2 Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Both decisions and the

pleading standards articulated therein were explicitly endorsed and applied by the Supreme Court in Brady v. Cintron,

55 V.I. 802, 822-23 (V.I. 2011) and subsequent cases.

Toutouyoute v. St. Croix Trading & Rodriquez; SX-15-CV-457

Memorandum Opinion and Order

Page 3 of 7



Croix Trading on notice of that claim against it. Because the Complaint fails to meet this notice

pleading standard as to Count I, the breach of contract claim against St. Croix Trading will be

dismissed.



All three counts of the Complaint are glaringly imprecise, failing to differentiate between

Defendants. A liberal reading of the Complaint’s breach of contract claim against St. Croix

Trading includes the following:



h. Plaintiff purchased materials from St. Croix Trading company and retained the

receipt...



k. As a result of the defendants actions they made a false report to the Department

of Licensing and Consumer Affairs, tarnished plaintiff's name and breached the

contract....



COUNT I: BREACH OF CONTRACT BY DEFENDANTS



n. Defendants breached its contract with Plaintiff by failing to pay him pursuant to

the agreement.



o. Defendants failed to acknowledge the work done and the time spent.



p. As a direct and proximate result of defendants actions, Plaintiff has been

damaged by the loss of income. Complaint, Jf h, k, n-p.



The Complaint’s only reference to a contractual agreement with St. Croix Trading states

that “Plaintiff purchased materials from St. Croix Trading company and retained the receipt.” Id

{| k. The Complaint does not allege that St. Croix Trading was a party to Defendant Rodriguez’s

“agreement with Plaintiff to do construction work on her home.” Jd. § d. Imprecise references in

the Complaint, e.g. “Plaintiff made an agreement with defendant to build a porch on her property”

(id. { f); and “Defendants [sic] breached its [sic] contract with Plaintiff” (id. § n), necessarily relate

only to the individual Defendant Rodriguez and not to St. Croix Trading. See generally id. Jf a-p.



The Complaint’s only allegation of contractual interaction between Plaintiff and St. Croix

Trading describes Plaintiffs purchase of construction materials from St. Croix Trading, for which

he “retained the receipt.” Jd. J h. There is no claim that St. Croix Trading failed to deliver the

materials or delivered defective materials or otherwise breached the construction materials

purchase contract in any manner. Indeed, Plaintiffs receipt and retention of a receipt permits the

inference that Plaintiff received satisfactory delivery of those materials.



As Plaintiff has not responded in opposition to the Motion and has not sought leave to

amend the Complaint to address its deficiencies, the allegations of the Complaint as filed must



stand for themselves. Even liberally construing the pleading in the light most favorable to Plaintiff

Toutouyoute v. St. Croix Trading & Rodriquez; SX-15-CV-457

Memorandum Opinion and Order

Page 4 of 7



as to his breach of contract claim against St. Croix Trading, Plaintiff has not presented “a short

and plain statement of the claim showing that the pleader is entitled to relief’ from St. Croix

Trading, nor does the pleading “adequately allege facts that put an accused party on notice of

claims brought against it.” Mills-Williams, 2017 V.1. Supreme LEXIS 35, at *12 (citation omitted).

Accordingly, Count I of Plaintiff's Complaint will be dismissed as to Defendant St. Croix Trading.



Count II: Conversion



Plaintiff further fails to “adequately allege facts that put an accused party on notice of

claims brought against it” regarding his conversion claim against St. Croix Trading. Conversion

in the Virgin Islands is defined as “an intentional exercise of dominion or control over a chattel

which so seriously interferes with the right of another to control it that the actor may justly be

required to pay the other the full value of the chattel.” Isaac v. Crichlow, 63 V.1. 38, 59 (V.1. Super.

2015) (adopting RESTATEMENT (SECOND) OF TorTs § 222A following a thorough Banks analysis,°

which the Court adopts here); see also Ross v. Hodge, 58 V.1. 292, 308 (V.I. 2013).4



By his Complaint, Plaintiff sets forth in full his conversion allegations against both

Defendants, as follows:



COUNT II: CONVERSION BY DEFENDANTS



q. Defendants converted or contributed to the conversion of the funds legally due

Plaintiff.



r. Defendant St. Croix Trading, Inc. claimed that the plaintiff did not pay for the

materials and retained the money that plaintiff had paid for the materials.



s. As a direct and proximate result of the actions of Defendants, Plaintiff has been

damaged. Complaint, 44 q—s.



From the Complaint’s allegations, it is not possible to discern any acts of St. Croix Trading



that can be seen as “an intentional exercise of dominion or control over a chattel” of Plaintiff.



3 In the absence of statutory or binding case law precedent on a particular matter, the Superior Court possesses “the

ability to shape the common law” of the Virgin Islands. Banks v. Int'l Rental & Leasing Corp., 55 V.I. 967, 977-78

(V.I. 2011). A “Banks analysis” weighs “three non-dispositive factors” to determine Virgin Islands common law: “1)

whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of

courts from other jurisdictions; and (3) most importantly, which approach represents the soundest rule for the Virgin

Islands.” Gov't of the V.I. v. Connor, 60 V.I. 597, 600 (V.I. 2014) (quoting Simon v. Joseph, 59 V.1. 611, 623 (V.I.

2013)).



“ Although decided after Banks and Connor, the Supreme Court in Ross did not conduct a Banks analysis, but rather

“automatically and mechanistically follow[ed] the Restatements” (Banks, 55 V.I. at 979) to determine the elements of

conversion in Virgin Islands law.

Toutouyoute v. St. Croix Trading & Rodriquez; SX-15-CV-457

Memorandum Opinion and Order

Page 5 of 7



Plaintiff pleads only with regard to this Defendant that he “purchased materials from St. Croix

Trading company and retained the receipt,” with which materials he subsequently “began

construction” on Defendant Rodriquez’s porch. Jd. [§ h.-i. That is, Plaintiff paid for and received

from St. Croix Trading construction materials not alleged to be defective or incomplete. From the

Complaint’s description of the transaction between Plaintiff and St. Croix Trading, or otherwise,

there is no plain statement of any claim that St. Croix Trading owes money to Plaintiff or in any

manner intentionally exercised dominion or control over any chattel of Plaintiff or of “the funds

legally due Plaintiff.” Jd. { q. The only funds allegedly legally due Plaintiff were funds claimed

due from Defendant Rodriguez for the construction project that she allegedly refused to pay. See

id. § n (“Defendants breached its contract with Plaintiff to pay him pursuant to the agreement.”).



Plaintiff's only relationship with St. Croix Trading alleged in his Complaint involved the

agreed payment for and delivery of construction materials. No claim is presented that St. Croix

Trading retained materials for which Plaintiff had paid, or otherwise controlled money or property

properly due Plaintiff. As such, construing the pleadings in the light most favorable to Plaintiff,

the Complaint fails to “adequately allege facts that put an accused party on notice of claims brought

against it.” Mills-Williams, 2017 V.I. Supreme LEXIS 35, at *12 (citation omitted). Accordingly,

Count II of Plaintiff's Complaint must be dismissed as to Defendant St. Croix Trading.



Count II: Defamation



Plaintiff has pled sufficient facts to put St. Croix Trading on notice of the defamation claim

against it. “In the Virgin Islands, a claim of defamation requires: ‘(a) a false and defamatory

statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting

at least to negligence on the part of the publisher; and (d) either actionability of the statement

irrespective of special harm or the existence of special harm caused by the publication.’” Kendall

v. Daily News Pub. Co., 55 V.I. 781, 787 (V.1. 2011) (quoting RESTATEMENT (SECOND) OF TORTS

§ 558).°



St. Croix Trading argues that Plaintiff's pleading is deficient, citing a District Court of the



Virgin Islands case, claiming that “a complaint must ‘specifically identify what allegedly



* The elements of a defamation claim as set out in Kendall were adopted in Joseph v. Daily News Publishing Co., Inc.,

57 V.I. 566, 586-87 n.10 (V.I. 2012), wherein the Supreme Court applied the three non-dispositive Banks factors, and

saw no reason to depart from its decision in Kendall, which followed the approach set forth in the Restatement

(Second) of Torts.

Toutouyoute v. St. Croix Trading & Rodriquez; SX-15-CV-457

Memorandum Opinion and Order

Page 6 of 7



defamatory statements were made by whom and to whom.” Motion, at 6 (quoting Manns y.

Leather Shop Inc., 36 V.I. 214, 218 (D.V.L. 1997) (“An allegation of defamation in a complaint is

subject to a more stringent standard of pleading under Rule 8 than is usually the case.... A

complaint of defamation must, on its face, specifically identify what allegedly defamatory

statements were made by whom and to whom.”) (Internal citations omitted.)



This more stringent standard for defamation claims is inconsistent with binding precedent

and current Virgin Islands law. St. Croix Trading’s claim is “without merit, because it effectively

suggests that Plaintiff's defamation claim is subject to the heightened pleading requirements of

[V.L R. Civ. P. 9], which requires a party to state with particularity the circumstances surrounding

the alleged tort.” Bizni, LLC v. Olive, 2015 V.I. LEXIS 57, at *4 (V.I. Super. 2015). Defamation

is not included within the causes of action subject to the heightened pleading standard of Rule 9,

and thus a complaint must only comply with general pleading requirement of Rule 8(a)(2) that it

contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”



While Plaintiff's Complaint does not specifically identify what allegedly defamatory

statements were made by whom, to whom and when, St. Croix Trading is put on notice of the

alleged defamation by the assertion that “St. Croix Trading, Inc. falsely claimed that plaintiff did

not pay for the materials.” Complaint, § 1. On notice generally as to the content of the allegedly

defamatory communications, St. Croix Trading may determine the specifics of such statements in

discovery.



Construing the Complaint in the light most favorable to Plaintiff, Plaintiff alleges that St.

Croix Trading knowingly made a false statement to Luz Rodriquez, to Department of Licensing

and Consumer Affairs, and perhaps to others concerning Plaintiff's nonpayment for materials. Id.

1 k-m, r, u-v. The Complaint further alleges that St. Croix Trading’s defamatory statements were

made knowingly (id. §v), and that Plaintiff was harmed as a result of such defamation. Id. [§ m,

x, y. By his allegations of these facts, Plaintiff has sufficiently put St. Croix Trading on notice of

all of the elements of his defamation claim. Therefore, St. Croix Trading’s Motion will be denied



with respect to Count III of the Complaint.

On the basis of the foregoing, it is hereby



ORDERED that Defendant St. Croix Trading Company, Inc.’s Motion to Dismiss is

GRANTED as to Counts I and II and DENIED as to Count III. It is further

Toutouyoute v. St. Croix Trading & Rodriquez; SX-15-CV-457

Memorandum Opinion and Order

Page 7 of 7



ORDERED that Counts I and II of Plaintiffs Verified Complaint are DISMISSED without

prejudice with regard to Defendant St. Croix Trading Company, Inc. It is further



ORDERED that the parties shall meet and confer within 21 days of the date of entry of this

Order, pursuant to V.I. R. Civ. P. 26(f), and shall consider, among other things, (1) the nature and

basis of the claims of Plaintiff and the defenses of Defendants (and the claims of Defendant

Rodriguez on her Counterclaim and the defenses of Plaintiff as to the same); (2) the possibilities

for promptly settling or otherwise resolving the case; (3) making or arranging for the disclosures

required by V.I. R. Civ. P 26(a)(1); (4) any issues relating to preservation of discoverable

information; and (5) development of a proposed discovery plan. Each party is jointly responsible

for arranging the conference and for attempting in good faith to agree on the proposed discovery

plan, to include the date by which mediation will be concluded, and the date by which the case

may be scheduled for trial, no later than the end of this calendar year. Each party is also jointly

responsible for submitting to the Court a written report outlining the parties’ discovery plan and

proposed joint scheduling order, to be filed no later than 30 days from the date of entry of this

Order.



DATED: May ‘3 ( 2018.



DOUGLAS A. BRADY, TY i



ATTEST:



ESTRELLA GEORGE

Clerk of the Court



Distribution List:

Ronald E. Russell, Esq.

Andrew C. Simpson, P.C.



Luz E. Rodriguez

PO Box 3772

Kingshill, VI 00851

SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX



IN RE: )

) MISC NO. DABOMP/2018

ORDER DESIGNATING CERTAIN )

OPINIONS FOR PUBLICATION. )

TO: Clerk of the Court

Counsel of Record

Law Library / LexisNexis / Westlaw

ORDER



THE PREMISES considered, it is hereby



ORDERED that the following memorandum opinions issued in the below listed cases are hereby

designated FOR PUBLICATION.



Pappas v. Hotel on the Cay Time-Sharing Ass’n, Inc., opinion dated April 27, 2015;



Estate of Burnett v. Kazi Foods of the V.I., SX-12-CV-139; opinion dated May 24, 2016;

FirstBank of Puerto Rico v. Prosser, SX-09-CV-520, opinion dated June 22, 2015;



James v. Guardian Insurance Company, SX-10-CV-435, opinion dated July 14, 2015;

Nurse v. Parris, SX-14-CV-011, opinion dated May 3, 2016;



Charles v. Arcos Dorados USVI, Inc., SX-13-CV-336, opinion dated August 18, 2016;

McGary v. J.S. Carambola, LLP, SX-13-CV-289, opinion dated October 7, 2016;



Whyte v. Bockino, SX-15-CV-083, opinion dated January 26, 2017;



Chiverton v. World Fresh Market, LLC, SX-10-CV-575, opinions dated March 10 & 28, 2017;

People v. Melendez, SX-16-RV-003, opinion dated March 22, 2017;



Edwards v. Hess Oil V.I. Corp., SX-15-CV-382, opinion dated June 28, 2017;



In re: Red Dust Claims, SX-15-CV-620, et seg., opinion dated July 7, 2017;



Hamed v. Yusuf, SX-12-CV-370, et seq., opinions dated July 21, 2017 and March 14, 2018;

Toutouyoute v. St. Croix Trading Co., Inc., SX-16-CV-457, opinion dated May 31, 2018.



Finally, it is ORDERED that a copy of this Order be served on counsel for the parties in the above-



captioned cases (or the party if proceeding pro se), be filed in each of above-captioned maters, and

forwarded to the Law Library for distribution to LexisNexis and Westlaw, FORTHWITH.



Dated: October 3 , 2018. Ob,



DOUGLAS A. -_s JUDGE