Bobax Ventures, LP v. Innercircle Logistics, Inc. and John A. Clendenin

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

BOBAX VENTURES LP Civil No SX 2015 CV 173

PLAINTIFF,

ACTION FOR DEBT AND

V BREACH OF CONTRACT INNERCIRCLE LOGISTICS INC AND JOHN A CLENDENIN CITE AS 2021VISUPER I 1‘ 21A

DEFENDANTS

Appearances Charlotte S Sheldon, Esq McChain Hamm & St John LLP Christiansted U S Virgin Islands For Plaintiff

MEMORANDUM OPINION

WILLOCKS Presiding Judge (ll 1 THIS MATTER came before the Court on Plaintiff Bobax Venturefi LP 3 (hereinaftet Plaintiff ) motion for default judgment filed on Octobet 22 2020 and motion to remedy deficiency in its motion for default judgment filed on September 15 2021 BACKGROUND

(ll 2 On May 7 2015 Plaintiff filed a complaint against Defendant Innercircle Logistics Inc (hereinafter Innercircle ) and Defendant John A Clendenin (hereinaftet Clendenin and together with Innetcircle Defendants ) The complaint did not set forth any counts designating specific causes of action but descxibed the action as an action for debt and breach of contract In its complaint Plaintiff requested the Court enter judgment in faxor of Plaintiff and against each of Defendants jointly and sewerally ordering Defendants to pay to Plaintiff (i) all amounts owing under the Promissory Note (ii) interest at the rate of TWENTY FIVE PERCENT (25%) per annum

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accruing on the $30 000 due under the Promissory Note from January 1 2013 through the date of entry ofjudgment herein, (iii) post judgment interest at the statutory rate of four percent (4%) per annum as provided in 5 V l C § 426(a); and (iv) the full amount of all of Plaintiffs costs incurred in connection with this Action and otherwise in connection with the collection of amounts owing to Plaintiff including attorneys fees and granting to Plaintiff such other and further relief as isjust and proper ’ (Compl ) The following documents were attached to the complaint (i) Exhibit A a copy of a promissory note between Plaintiff as the lender and innercircle as the borrower dated October 9 2012, for $25,000 00, signed by Clendenin as the president of lnnercircle (hereinafier Promissory Note’) and (ii) Exhibit B a copy an unconditional guaranty of payment and performance between Clendinen as the guarantor for Innercircle’s payment and performance under the Promissory Note dated October 9, 2012, signed by C lendinen (hereinafter ‘ Guaranty’) 11 3 According to the notice of filing of return of summons for 1nnercircle, filed on May 22 2015 Innercircle ‘was served by hand delivery of an original summons and a copy of the complaint on May 20, 2015 to John A Clendenin A copy of the affidavit of Process Server Antonio Messer, was attached to the notice in support thereof to wit Antonio Messer declared that John A Clendinen for Innercircle Logistics, Inc ’ was served on ‘May 20, 2015 ’ at ‘No 15 Est LaGrange Frederiksted St Croix, USVI (Messer Aff ) 1% 4 According to the notice of filing of return of summons for Clendinen filed on May 22 2015, Clendinen was served by hand delivery ofan original summons and a copy ofthe complaint on May 20 2015 A copy of the affidavit of Process Server Antonio Messer was attached to the notice in support thereof to wit Antonio Messer declared that John A Clendinen was served on May 20, 2015’ at ‘ No 15 Est LaGrange, Frederiksted, St Croix, USVI ” (Messer Aff)

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15 On January 7, 2016, Plaintiff filed a motion to strike lnnercircle 5 answer On February 9, 2016, Plaintiff filed a motion for summary judgment '11 6 On October 25 2018 the Court entered an order whereby the Court ordered Innercircle to submit to the Court a date stamped copy of its answer within ten days and reserved ruling on Plaintiff‘s motion to strike in the October 25 2018 order, the Court explained

1n this case, there is no Answer from either defendant in the Court 3 physical case file or the electronic record The Plaintiffdid not submit a copy ofthe Answer as an exhibit to its Motion to Strike As such, it is inappropriate for the Court to render a decision on the Motion to Strike at this time because the Court cannot review the Answer at issue

(Oct 25 2018 Order)

31 7 On March 7 2019 the Court entered an order whereby the Court noted that the Court does not have an Answer on file for either defendant in this matter and ordered that ‘any Answer of [Innercircle] is stricken ’ and entered default against both Defendants 11 8 On October 22, 2020 Plaintiff filed a motion for defaultjudgment '1 9 On July 22 2021 the Court entered an order whereby the Court ordered that Plaintiff‘s motion for summary judgment filed on February 9, 2016 is deemed withdrawn and that within thirty (30) days from the date of entry of this Order Plaintiff shall remedy the deficiency by supplementing his motion for default judgment with (i) evidence showing that Clendinen is not a minor an incompetent person, or a person subject to the provisions of the Servicemember 5 Civil ReliefAct of 2003 and/or an affidavit stating such and (ii) evidence showing that C1endinen is an authorized agent for service of process for lrmercircle and reserved ruling on Plaintiff‘s motion pending receipt of Plaintiff’s supplemental filing ‘

‘ 1n the September 8 2021 order the Court explained The Count must note at the outset that the Court finds that Plaintiff implicitly uithdrew its prior motion for summary judgment filed on February 9 2016 when it filed this instant motion for default

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11 10 On September 8 202] the Court entered an order whereby the Court scheduled a show cause hearing and ordered Plaintiff to show cause why it should not be held in contempt and sanctioned for failure to comply with the Court 5 July 22 2021 order but also ordered that, if within thirty (30) days from the date of entry of this Order Plaintiff files the supplemental filing, then the aforementioned show cause hearing and the order to show cause will be vacated 1% 11 On September 15, 2021 Plaintiff filed a motion to remedy deficiency in its motion for defaultjudgment DISCUSSION

I September 8, 2021 Order *3 12 Given that Plaintiff filed their motion to remedy deficiency within thirty (30) days from the date of entry of the September 8, 2021 order, the Court will vacate the show cause hearing and the order to show cause 11 Plaintiff’s Motion to Remedy Deficiency f; 13 In its motion to remedy deficiency Plaintiff indicated that Glendinen is not a minor not an incompetent person, and not a person subject to the provisions ofthe Servicemembers Civil Relief Act of 2003 (Sept 15, 2021 Motion, pp 1 3 ) Plaintiff also indicated Clendinen is an authorized

judgment See Magus \ National Industrial Senices e! a! 2021 V U Super SOU ‘f 8; see also In re Refinery Dust Claims 72 V 1 256 290 (Super Ct Dec 13 2019) (citing llztchell 1 Gen Eng g Corp 67 V l 271 278 (Super Ct Feb 23‘ 2017) ( a motion can also be deemed withdrawn based on certain actions or inactions oi the party who filed the motion ) As such Plaintiff‘s prior motion for summary judgment v» ill be deemed withdrawn Upon review of the file it has come to the Court 5 attention that Plaintiff did not provide any ex idence 5110“ ing that Clendinen is not a minor an incompetent person or a person subject to the proxisions of the Sen icemembers Civil Relief Act of 2003, or an affidax it stating such There are additional rules to serving a minor or an incompetent person and a person subject to the Servicemember's Chi] Relief Act of 2003 is protected from being sued while in acme military senice Furthermore it has also come to the Court 5 attention that Plaintiff did not provide any evidence showing that Clendinen is an authorized agent for settles ot process for Innercircle As such the Court will gixe Plaintiff an opportunity to remed) the deficiency and reserve ruling on Plaintiff’s instant motion (Sept 8 202] Order) (footnotes omitted)

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agent for service of process for innercircle “because not only does he represent himself as President/CEO at inner Circle Logistics, Inc ’ at present on his Facebook, he represents himself on his Linked In as the Founder President & CEO of Inner Circle Logistics Inc (Id at p 5 ) A copy of the following documents were attached as exhibits Exhibit A a copy of a screenshot of Clendinen’s Facebook page showing his birthdate as October 13 1949, Exhibit B a copy of the Status Report pursuant to Servicemembers Civil ReliefAct for Clendinen showing that Ciendinen is not subject to Servicemembers Civil Relief Act of 2003, Exhibit C a copy of a screenshot of Clendinen s Linked In page showing Clendinen is ‘Found President & CEO of Inner Circle Logistics Inc Exhibit D a copy of a screenshot of Clendinen 5 Google Business Page showing Clendinen s photo and 15 Estate La Grange Rd Frederiksted, 00841’ as the address for lCGroup’ , and Exhibit E a copy of a screenshot of Division of Corporations and Trademarks showing Johann A Clendenin as the resident agent for Inner Circle Logistics, Inc ” Based on Plaintiff‘s representation, the Court finds that Innercircle was properly served in this matter see V I R CIV P 4(h)(])(A) ( Unless law of the Virgin islands provides otherwise or the defendant waives service (1) a domestic or foreign corporation or a partnership or other unincorporated association that is subject to suit under a common name may be served (A) in the Virgin Islands (i) in the manner prescribed by Rule 4(e) for serving an individual; or (ii) by delivering a copy of the summons and of the complaint to an officer a managing or general agent or )2

7In its Septembeer 2021 motion Piaintiffcited to the Federal Rules otCi\il Procedure flown er the Virgin Islands Rules ofCivii Procedure is appiicabie here Piaintiff is reminded to cite to applicable authon it) in its motions See V I R CIV P li(b)(5)( By presenting to the courtapleading written motion orother paper whetherby signing thing submitting or later advocating it an attorney or self represented party certifies that to the best of the person's knowiedge information and belief formed after an inquiry reasonabie under the circumstances (5)that the applicable Virgin Islands law has been cited including authority for and against the positions being advocated by the Part) )

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need to move the Court for permission to file because the Court’s July 22 2021 order had ordered Plaintiffto remedy the deficiency in its motion for defaultjudgment Thus, this filing functions as a filing in compliance with the Court sJu1y 22 2021 order and needs no further action from the Court 111 Plaintiff’s Motion for Default Judgment 11 15 In its motion for default judgment Plaintiff argued that a default judgment is warranted here and requested a ‘defaultjudgment in the amount of $171 988 22 for repayment of the loan ($30 000 00, principal and interest) plus compounding interest at a rate of 25% per annum from January 1 2013 to the date that Judgment is entered (Oct 22 2020 Motion pp 4 6) The following documents were attached to Plaintiff‘s motion Exhibit 1 a copy of the Promissory Note Exhibit 2 a copy of the Guaranty, and Exhibit 3 a copy of the affidavit of Charlotte S Sheldon, Esq Plaintiff did not file a separate motion for costs but in her affidavit Attorney Sheldon requested for costs including attorney 5 fees A Standard of Review

11 16 Rule 55 of the Virgin Islands Rules of Civil Procedure (hereinafier ‘Rule 55 ) governs entry for default and defaultjudgment An entry ofdefault does not necessitate a defaultjudgment See Chapun Scafidz 66 V 1 160 188 (Super Ct June 14 2017)( Plaintiffs do not win by default just because the defendants fail to appear ) {W]hen default is entered against a defendant the defendant is admitting only to the allegations against him as alleged in the charging document ’ Redemption Holdings Inc v Gov tofthe VI 65 V I 243 255 (V I 2016) (citing ngv Appleton 61 VI 339 346 (V 1 2014)) In King the Virgin Islands Supreme Court pointed out that the Superior Court must consider whether the unchallenged facts constitute a legitimate cause of

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action since a party in default does not admit mere conclusion of law and that if the Superior Court determines that the unchallenged facts constitute a legitimate cause of action, then it is ‘to hold a default judgment hearing to establish the amount of damages ” 61 V I at 346 (internal quotes and citations omitted) (footnote omitted) However a default judgment can be entered without a hearing [w]hen the plaintiff‘s claim against a defendant is for a sum certain or for a sum which can by computation be made certain ’ Appleton v Hamgan, 61 V I 262, 270 (V I 2014) (citing Super Ct R 48(a)(1)) 3 see V I R CIV P 55(b)(1) ( 1f the plaintiff‘s claim is for a sum certain or a sum that can be made certain by computation the court or the clerk on the plaintiffs request with an affidavit showing the amount due must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person ’ ) 1n Harrzgan the Virgin Islands Supreme Court explained that ‘ [a] claim is not a sum certain unless there is no doubt as to the amount to which a plaintiff is entitled as a result of the defendant's default 61 V I at 270 In all other cases [not involving a claim for a sum certain], the party must apply to the court for a default The court may conduct hearings or make referrals preserving any statutory right to a jury trial when to enter or effectuate

3 The Hanigan court noted We again look to federal case law for persuasixe authorit) because, ev en though Superior Court Rule 48 exclusix ely governs default judgment in the Superior Court, Federal Rule of Ci\ ii Procedure 55(b) simiiarl)

proxides that defaultjudgment can be entered without ahearing on!) “here the damages sought are a sum certain SUPER CT R 48(a)(l) ( When the plaintiff‘s claim against a defendant is for a sum certain or for a sum which can b) computation be made certain the clerk upon request of the plaintiff shall enter judgment for the netamount due and costs against the defendant ) FED R Cw P 55(b)(l)( 1f the plaintiff‘s claim is for a sum certain or a sum that can be made certain b) computation the clerk must enterjudgment for that amount and costs against a defendant ) )

61 V 1 at 270 n 9 Since Harrigan, the Virgin [Slands Supreme Court adopted the Virgin Islands Rules of CiVil Procedure which went into effect on March 31 2017 Subsequently Superior Court Rule 48 was repealed 0n Aprii 7 2017 by, Supreme Court Promulgation Order No 2017 0006 While Superior Court Rule 48 has been repealed and the Federal Rules of Civil Procedure does not apply in this matter the Court hex ertheless finds the Harrigan court 5 analy sis as to sum certain claims helpful here since Rule 55(b)(1) closely mirrors its federal counterpart and Superior Court Rule 48

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judgment, it needs to (A) conduct an accounting (B) determine the amount of damages, (C)estab1ish the truth of any allegation by evidence or (D) investigate any other matter’ V 1 R ClV P 55(b)(2)

B Discussion

1 Whether Plaintiff is Entitled to a Judgment by Default 11 17 As noted above the complaint did not set forth any counts designating specific causes of action Based on Plaintiff‘s description of the action as an action for debt and breach of contract’ and the allegations contained therein the Court concludes that Plaintiff brought the following causes of action against Defendants debt and breach of contract The Court will first determine whether the facts, as alleged in Plaintifi’ s complaint, constitute legitimate causes of action for debt and breach of contract a Debt Claim

11 18 As noted in Carias Warehouse v Thomas, no Virgin Islands precedent (binding or persuasive) explains what common law rule governs a claim for money owed’ and thus 21 Banks analysis was necessary to determine whether a debt claim should be recognized under the common law of the Virgin Islands and what specific ruies should appiy 64 V I 173 183 84 (V I Super Ct May 12 2016) The Carlos Warehouse court conducted a Banks analysis and concluded that it is unquestionably the soundest rule for the Virgin Islands to recognize a claim for debt,” 1d at 192 (quotation marks and internal citation omitted) and that [tjo state a common law claim for debt under Virgin Islands law the plaintiff must allege that the defendant owes a certain amount and that the defendant is or should be obligated to pay that amount Id Having reviewed the Banks analysis conducted in Carlos Warehouse, this Court sees no reason to depart from that ruling and adopts that analysis as though the same were set forth herein

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Plaintiff made the following allegations in its complaint 4

7 On or about October 9 2012 Plaintiff loaned Defendant 1C Logistics TWENTY FIVE THOUSAND DOLLARS AND NO CENTS (US $25 000 00) (the Loan )

8 On or about October 9, 2012, Defendant 1C Logistics executed and delivered to Plaintiff that certain Promissory Note dated October 9, 2012 (the Promissory Note ) wherein Defendant 1C Logistics promised to pay to Plaintiff the full principal amount of the Loan ($25 000) together with interest in the amount of FIVE THOUSAND DOLLARS AND NO CENTS (US $5 000 00) A copy of the Promissory Note is attached as Exhibit A 9 All amounts due under the Promissory Note were required to be paid no later than December3l 2012 10 Defendant 1C Logistics did not pay the amount owing under the Promissory Note on or before December 31, 2012 l 1 Defendant 1C Logistics failure to pay the amount owing under the Promissory Note on or before December 31, 2012 constitutes a default under the Promissory Note 12 The Promissory Note provides that {fjrom and after any event of default [under the Promissory Note] and for so long as any such default shall be continuing, all amounts owing under this Note shall collectively bear interest at the rate of TWENTY FIVE PERCENT (25%) per annum See Exhibit A 13 Contemporaneous with the execution and delivery of the Promissory Note Defendant Clendenin executed and delivered to Plaintiff that certain Unconditional Guaranty of Payment and Performance dated October 9, 2012 (the ‘Personal Guaranty ) A copy of the Personal Guaranty is attached as Exhibit B 14 Defendant Clendenin is the Guarantor under the Personal Guaranty 15 Pursuant to the Personal Guaranty, Defendant Clendenin unconditionally guaranteed to Plaintiff ‘the full and prompt payment when due of [the Promissory Note] See Exhibit B 16 Pursuant to the Personal Guaranty Defendant Clendenin agreed that if any amount of principal, interest and/or fees due under the Note is not paid by [Defendant 1C Logistics]

in accordance with the terms of the Note Guarantor will immediately make all such Payments See Exhibit B 17 Pursuant to the Personal Guaranty Defendant Clendenin further agreed to pay [Plaintiff] all expenses (including attorneys’ fees) paid or incurred by [Plaintiff] in endeavoring t0 coliect the indebtedness evidenced by the note to enforce the obligations of {Defendant 1C Logistics] guaranteed hereby or any portion thereof or to enforce this Guaranty See Exhibit B 18 The Personal Guaranty provides that it is a ‘guaranty of payment and performance and not of collection ’

19 The Personal Guaranty provides that Defendant Clendenin’s liability thereunder ‘ shail be direct and immediate and not conditional or contingent upon the pursuit of remedies against [Defendant 1C Logistics] or any other person, nor against securities or liens available to [Plaintiff]

4 lnnercircle is referred to as [C Logistics in the complaint

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22 Defendant 1C Logistics has failed to perform in accordance with the Promissory Note 23 Defendant 1C Logistics has never paid anything to Plaintiff in respect of the amounts owned under and in connection with the Promissory Note 24 Defendant 1C Logistics is justly indebted to Plaintiff in the amount of THIRTY THOUSAND DOLLARS AND NO CENTS (US $30 000 00) with interest at the rate of TWENTY FIVE PERCENT (25%) per annum accruing from January 1 2013 25 Pursuant to the Personal Guaranty Defendant Clendenin is personally liable for the indebtedness of Defendant 1C Logistics owed to Plaintiff 26 Defendant Ciendenin has failed to perform in accordance with the Personal Guaranty 27 Defendant Clendenin has never paid anything to Plaintiff in respect of his obligations under the Personal Guaranty

1,1 19 Based on the unchallenged facts alleged in the complaint the Court finds that Defendants owe Plaintiff a certain amount of money under the Promissory Note and Guaranty and Defendants are jointly and severain obligated to pay Plaintiff such money Thus, the Court concludes that the unchallenged facts constitute a legitimate cause of action for debt under Virgin Islands iaw b Breach of Contract

1120 In Phillip v Marsh Monsanto, the Virgin Islands Supreme Court conducted a Banks analysis and determined that to establish a breach of contract claim, the plaintiff was required to demonstrate (1) an agreement; (2) a duty created by that agreement; (3) a breach of that duty; and (4) damages 66 V I 612 621 (V I 2017) (citing Brouzllard v DLJ Mortgage Capital Inc 63 V I 788 798 (VI 2015) (citing Arlington Fundzng Servs Inc v Gage] 51 V1 118 135 (VI 2009)) ‘A contract may be express, implied in fact, or implied in law Turnbull v Turnbull, 71 V I 96 105 (Super Ct July 15 2019) (citing Peppertree Terracev Wzllzams 52 V I 225 24] (V I 2009) (Swan concurring» ‘An express contract is memorialized in oral or written words ’ and an implied in fact contract is inferred wholly or partially by conduct ’ Id (citing Peppertree Terrace, 52 V I at 241) (Swan concurring», see also Whyte v Bockmo, 69 V I 749, 764 (V I 2018) (citing Peppertree Terrace, 52 V 1 at 241) (Swan concurring» An enforceable contract requires an offer acceptance a bargained for legai benefit or detriment commonly known as

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consideration, and a manifestation of mutual assent ” Williams v Umv of the VI , 2019 V I LEXIS 2 *4 (Super Ct Jan 18 2019) (citing Peppertree Terrace 52 V1 at 241) (Swan concurring» see also Cornelius v Bank of Nova Scotza 67 V 1 806 820 (V 1 2017) (‘ {A} contract is only formed or modified to the extent there is mutual assent and mutual consideration ) ‘A manifestation ofmutual assent or a meeting of the minds requires that the two parties that intend to form a contract are in agreement to the same terms and must be proven objectively Unit ofthe VI 2019 V1 LEXIS 2 at *4 Smith v McLaughlin 2019 V1 LEXIS 180 *7 (Super Ct Oct 22 2019) 1’21 Based on the unchallenged facts alleged in the complaint the Court finds that (i) Innercircle and Plaintiff entered into an agreement whereby Innercircle, the borrower agreed to pay Plaintiff, the lender, in full on December 31 2012 the principal amount of $25,000 00, plus interest in the amount of $5 000 00 plus interest at the rate of 25% per annum from and after any event of default which was memorialized in the Promissory Note (ii) Clendinen and Plaintiff entered into an agreement whereby Clendinen, the guarantor, agreed to pay Plaintiff the lender all payments due under the Promissory Note in the event any amount due under the Promissory Note is not paid by Innercircle, which was memorialized in the Guaranty, (iii) under the Promissory Note, lnnercircle had a duty to pay Plaintiff in full on December 31, 2021 and lnnercircle breached its duty when it failed to do so, and Plaintiff sustained damages as a result of Innercircle’s breach and (iv) under the Guaranty Clendinen had a duty to pay Plaintiff in the event [nnercircle failed to pay the amount due under the Promissory Note and Clendinen breached his duty when he failed to do so and Plaintiff sustained damages as a result of Clendinen s breach Thus, the Court concludes that the unchallenged facts constitute a legitimate cause of action for breach of contract under Virgin Islands law

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c Damages

11 22 The Court must now determine whether a hearing is necessary to establish the amount of damages Here Plaintiff submitted the Promissory Note the Guaranty, and the affidavit of Attorney Sheldon in support of Plaintiff‘s motion for defaultjudgment Attorney Sheldon indicated that [a] default judgment is owed in the amount of $171 988 22 for repayment of the loan ($25,000 and $5 000 interest) at a compounding interest rate of 25% per annum from the date of default January 1 2013 through the date of filing the instant Motion [October 22 2020] that ‘[p]re judgment interest of $21 084 34 at the statutory rate of 9% is owed from the date of default January 1 2013, through the date of instant Motion that these figures ‘shall be amended in accordance with the date judgment is entered ’ (Sheldon Af‘f 111i 2 3 ) The information contained in the Promissory Note is consistent with the information stated in Attorney Sheldon’s affidavit Based on the foregoing, the Court finds Plaintiff‘s claim for the total amount Defendants owe Plaintiff under the Promissory Note qualifies as a sum certain because ‘there is no doubt as to the amount to which [Plaintiff] is entitled as a result of [Defendant's] default ’ Harrzgan 61 V I at 270 in other words the Court finds that there can be no dispute as to the amount due under the Promissory Note Thus, a hearing is not necessary to establish the amount of damages in this matter 1] 23 Accordingly, given that Plaintiff‘s claims are for a sum certain or a sum that can be made certain by computation, the Court will grant Plaintiff’s motion and enterjudgment for that amount in favor of Plaintiff against Defendants See V I R CIV P 55(b)(l) ( ‘If the plaintiff‘s claim is for a sum certain or a sum that can be made certain by computation, the court or the clerk on the plaintifi‘s request with an affidavit showing the amount due must enter judgment for that

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a minor nor an incompetent person ”) (emphasis added)

2 Whether Plaintiff is Entitled to Pre judgment Interest and Post judgment Interest

3 Pre judgment Interest 1] 24 The specific prayers for relief sought by Plaintiff in its complaint did not include pre judgement interest pursuant to Title 1 i V l C § 951(a)(1) 5 Instead Plaintiff made the request in its motion for default judgment to wit Plaintiff requested ‘ $21 084 34 in pre judgment interest at the statutory rate of 9% as provided in {Title] l l V I C § 951(a)(1) (Oct 22 2020 Motion p

6) ll 25 In its motion Plaintiff did not provide any argument as to the Court 5 authority to extend

relief beyond the bounds of the specific prayers for relief requested in its complaint against the defaulting Defendants The Court finds that it would be fundamentally unfair to grant reliefgreater or different from that requested in the complaint against the defaulting Defendants here since they could have potentially relied on the relief requested in the complaint in deciding to default in this matter Additionally granting relief greater or different from that requested in the complaint against a defaulting defendant would promote gamesmanship where the plaintiff could simply limit their specific prayers for reliefs in the complaint and wait for the motion for defaultjudgment to request relief greater or different from that requested in the complaint Thus, the Court finds that an award of pre judgment interest in this instance is not appropriate here See Wzlltams v Edwards 2017 V I LEXIS 105 at *6 (Super Ct July 12 2017) (quoting Isaac v Crzchlow 63 V I 38 69

5 Title I] V I C § 931(a)( 1) provides that [t]he rate of interest shall be nine (9%) per eentum per annum on all monies which haVe become due

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(Super Ct Feb 10, 2015) ( The grant or denial of prejudgment interest remains within the sound discretion of the trial court ’) Accordingly the Court will deny Plaintiff’s request for pre judgment interest b Post judgment Interest 11 26 The specific prayers for reliefsought by Plaintiff in its complaint included post judgement interest pursuant to Title 5 V I C § 426(a) 6 PIaintiff also made the request in its motion for default judgment to wit Plaintiff requested post judgment interest at the statutory rate of 4% as provided in [Title] 5 V I C §426 (Oct 22 2020 Motion p 6) 11 27 In Chrlsnan v Joseph the Third Circuit, while sitting as the defacto court of last resort for the Virgin Islands heId that Title 5 V I C § 426 ‘provides for automatic accrual of post judgment interest 7 29 V 1 404 408 (3d Cir 1993) Accordingly the Court will grant Plaintiff’s request for post judgment interest See Smith v Compamon Assurance Co , 70 V I 233, 241 (V I Super Ct March 12, 2019) (the court granted Plaintiffs request for an award for post judgment interest because the application of post judgment interest is automatic ) Post judgment interest wiIi accrue at the rate of 4% per annum on the outstanding amount commencing on the date of the entry 0fthejudgment in this matter until the date the judgment is satisfied

6 Title 5 V 1 C § 426(a) provides that [t]he rate of interest on judgments and decrees for the payment of money shall be 4 percent per annum 7 The Third Circuit 5 decision construing a Virgin Islands statute in C hristian is binding on the Superior Court See \ajawzc 1 People oflhe VI 58 V I 315 328 (2013)( In fact ewes other Third Circuit decision which we haw characterized as being binding on the Superior Court can be traced to a case v» here the Third Circuit had exercised its power as the final arbiter of Virgin Islands local 1a» ) see also Gate; nmenl of(he Vngin Islands v Connor 60 V 1 597 606 n 1 (V 1 2014) (citation omitted) ( Superior Court should treat decisions of the United States Court of Appeals for the Third Circuit as binding precedent with respect to issues of local law )

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3 Whether Plaintiff is Entitled to Costs Including Reasonable Attorney’s Fees

11 28 Plaintiff also requested costs, including reasonable attorney 5 fees in its motion for default judgment and as part of the relief in the complaint Rule 54 of the Virgin islands Rules of Civil Procedure (hereinafizer ‘Rule 54’) provides that [w]ithin 30 days after the entry of a final judgment or a judgment allowing costs, the prevailing party shall serve on the adverse party and file with the court a bill of costs together with a notice of motion when application will be made to the court to tax the same V I R Civ P 54(d)(1)(A) Accordingly the Court will deny without prejudice Plaintiff‘s request for costs including reasonable attorney’s fees if Plaintiff wishes to move the Court for costs and fees, then Plaintiffshould file a separate motion, with proper briefing and supporting documents, in compliance with Rule 54 Failure to comply with Rule 54 may result in the costs being waived 9ee V I R Civ P 54(d)(l)(E) ( ‘Upon failure of the prevailing party to comply with this Rule, all costs may be waived ’)

CONCLUSION

1E 29 Based on the foregoing the Court will grant Plaintiff‘s motion for default judgment filed on October 22 2020 grant Plaintiff‘s request for post judgment interest deny Plaintiff‘s request for pre judgment interest, and deny without prejudice Plaintiff‘s request for costs including reasonable attorney’s fees, and enter ajudgment by default in favor of Plaintiffagainst Defendants as follows (i) the outstanding amount under the Promissory Note $25 000 00 the principal amount plus $5 000 00 the interest amount, collectively accruing interest at the rate of 25% per annum from January 1 2013 the date of default through October 22 2020 the date of entry of this Order and Judgment, plus (ii) post judgment interest accruing at the rate of 4% per annum on the outstanding amount commencing on the date ofthe entry of this Order and Judgment until the

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date the Order and Judgment is satisfied Additionally, the Court will close this matter since there are no other pending issues herein as to the merits of the case and the Court retains jurisdiction to decide collateral issues such as costs and attorney 3 fees even afier the entry of a final order Cf. Yearwood Enters Inc v Antilles Gas Corp 69 V l 863 870 (V I 2018) ( The proposition that the Superior Court should only retain jurisdiction over motions for fees and costs if those motions are filed before the entry ofa final order whether in the form of voluntary dismissal or otherwise finds no support in the decisions of Virgin Islands courts and contradicts the longstanding rules of practice in this jurisdiction Therefore we hold that the Superior Court retained jurisdiction to consider a motion for attorney's fees following the voluntary dismissal of an action regardless ofwhether that motion was filed before or after the notice of dismissal ’ ) 8 An order and judgment consistent with this Memorandum Opinion will be entered contemporaneously herewith DONE thts 4)WK day of Wmhcr 2021

ATTEST 2: g g WM Tamara Charles HAROLD W L WILLOCKS Clerk of the Court Presiding Judge of the Superior Court

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8 In Yeam 00d, the Virgin Islands Supreme Court explained as Judge Easterbrook has explained Jurisdiction is an all purpose word denoting adjudicatory power A court may haxe pow er to do some things but not others and the use of lack ofjurisdiction to describe the things it may not do does not mean that the court is out of business S abo Food Seruce Inc v Canteen Corp 823 F 26 1073‘ 1077 (7th Cir 1987) Indeed men the cases cited by Yeamood specifically note that the filing of a notice of xoluntar) dismissal deprix es the court of jurisdiction to rule on the merits of the claims, and those decisions say nothing about the court's jurisdiction over collateral matters such as motions for attorney '5 fees 69 V l at 866

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

BOBAX VENTURES LP Civil No SX 2015 CV 173

PLAINTIFF,

ACTION FOR DEBT AND

V BREACH OF CONTRACT INNERCIRCLE LOGISTICS INC AND JOHN A CLENDENIN CITE AS 2021 VISUPER U“:

DEFENDANTS

Appearances Charlotte S Sheldon Esq McChain Hamrn & St John LLP Christiansted U S Virgin Islands For Plamnff

ORDER AND JUDGMENT

WILLOCKS Presiding Judge In accordance with the Memorandum Opinion enteled c0ntemp01 aneously hexewith it is heleby ORDERED ADJUDGED AND DECREED that the show cause hearing scheduled f01 Plaintiff BObdX Ventures LP 5 (hereinafter Plaintiff ) and the order for Plaintiff to show cause as set fonth in the September 8 2021 order shall be and is hereby VACATED NUNC PRO TUNC It is further ORDERED ADJUDGED AND DECREED that Plaintiff s motion for default judgment filed on October 22 2020 is GRANTED It is further ORDERED ADJUDGED AND DECREED that Plaintiff s quuest for post judgment interest pursuant to Title 5 V IC § 426(a) i9 GRANTED It is further ORDERED ADJUDGED AND DECREED that Plaintiff 5 request for pre judgment interest pursuant to Title 11 V I C § 951(a)(1) is DENIED It is further

Bobat Venrmes LP1 [Imelcmle Loglmcs Inc eta! 9X 2015 CV 17? Order and Judgment 2021 VI SUPER i ' E St S Page 2 of 2

ORDERED ADJUDGED AND DECREED that Plaintiff s request for costs inciuding leasonable attorney 3 fees is DENIED WITHOUT PREJUDICE If Plaintiff wishes to move the Court for costs and fees Plaintiff shall file a separate motion with propel briefing and supporting documents in compliance with Rule 54 0f the Virgin Islands Rules of Civil P1 ocedme Failure to comply with Rule 54 of the Virgin Islands Rules of Civil Procedure may result in the costs being waived It is further ORDERED ADJUDGED AND DECREED that a JUDGMENT BY DEFAULT shall be ENTERED in favor of Plaintiff against Defendant Innercircle Logistics Inc and Defendant John A Clendenin as follows

(i) the outstanding amount under the Ptomissory Note $25 000 00 the plincipal amount plus $5 000 00 the interest amount collectively accruing interest at the late of 25% per annum flom January 1 2013 the date of default thlough the date of entry of this 01 det and Judgment plus

(ii) post judgment interest accruing at the rate of 4% p61 annum on the outstanding amount commencing on the date of the entry of this Order and Judgment until the date the Older and Judgment is satisfied

And it is further ORDERED that this matter is hereby CLOSED DONE and so ORDERED this day of Ogambegg 2021

ATTEST MM Tamara Char! s HAROLD W L WILLOCKS Clerk of the Court Presiding Judge of the Superior Court

‘v ‘ ’ :33; '/ Cu® Supervisor

Dated / 1 /_ ,2