Davis v. Dawgs of St. John Inc., d/b/a Sun Dog Cafe

• Court: District Court, Virgin Islands
• Decided: July 11, 2023
• Docket: 3:20-cv-00112
• Status: Unknown

Opinion

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN

ANDREA DAVIS, ) ) Plaintiff, ) ) v. ) Case No. 3:20-cv-0112 ) DAWGS OF ST. JOHN, INC., d/b/a SUNDOG ) CAFÉ, MICHAEL BARRY, and BARBARA ) BARRY, ) ) Defendants. ) )

APPEARANCES:

Peter J. Lynch, Esq.

FLAG LA FW o rV PI laintiff ST. THOMAS, U.S. VIRGIN ISLANDS Karin A. Bentz, Es q.

LAW OF FFI oC rE S D O efF e KnA dR aI nN t sA . BENTZ, P.C. ST. THOMAS, U.S. VIRGIN ISLANDS

MEMORANDUM OPINION MOLLOY, Chief Judge BEFORE THE COURT are the following motions: (1) Plaintiff’s Motion to Remand 1 (ECF No. 76), filed on December 30, 2022; and (2) Defendants’ Motion to Dismiss or Strike 2 Amended Complaint (ECF No. 79), filed January 17, 2023. Both motions are fully briefed and ripe for adjudication. For the reasons stated herein, the Court will deny Plaintiff’s Motion to Remand and will grant, in part, and deny, in part, Defendants’ Motion to Dismiss or Strike Amended Complaint.

1 Defendants filed an opposition to the motion to remand on January 13, 2023, ECF No. 78, and Plaintiff filed a 2reply thereto on January 26, 2023, ECF No. 82. Case No. 3:2 0-cv-0112 M emorandum Opinion Page 2 of 8 I. FACTUAL AND PROCEDURAL BACKGROUND

Defendants initiated this proceeding by filing a Notice of Removal (ECF No. 1) with See the Court on November 9, 2020. Removal was timely, and federal question jurisdiction was 3 evident from the face of the Complaint. ECF Nos. 1 and 1-1. Plaintiff did not contest See removal, but, after Defendants filed their Answer, Affirmative Defenses, and Counterclaim See (ECF No. 4), Plaintiff did file two separate motions to dismiss Defendants’ counterclaims. ECF Nos. 6 and 7. Defendants also filed two motions to dismiss. ECF Nos. 34 and 39. On December 16, 2022, the Court issued a Memorandum Opinion (ECF No. 73) and Order (ECF No. 74), disposing of the four motions to dismiss. The Court detailed its findings and, with regard to Defendants’ motions to dismiss, ordered some counts and parts of some counts of the complaint dismissed with prejudice, and other counts, or parts thereof, dismissed without prejudice. The Court also ordered Plaintiff to “file an amended complaint consistent with this Order and accompanying Memorandum Opinion no later than December See 30, 2022.” Order (ECF No.74) at 2. Plaintiff filed a First Amended Complaint with the Court on December 30, 2022. 4 ECF No. 75. Based upon the amendments Plaintiff made in her amended complaint, wherein she removed her federal claims, she filed a motion to remand. Defendants countered by moving to dismiss or strike the amended complaint, asserting that some of the amendments Plaintiff incorporated therein go beyond the parameters set by the Court and that Plaintiff failed to seek leave to amend as to ItIh.o LsEeG aAmLe SnTdAmNeDntAs.R D A. Subject Matter Jurisdiction

It is axiomatic that federal courts are courts of limited jurisdiction. A federal district See, e.g., DeLagarde v. Tours court can exercise subject matter jurisdiction based only upon federal question jurisdiction, diversity jurisdiction, and/o r admiralty/maritime jurisdiction. 3 The facts and allegations of the complaint are recited in the Court’s Memorandum Opinion issued on December 16, 2022. ECF No. 73. Because the underlying facts are not relevant to the two motions currently b4efore the Court, the Court will not reiterate them here. The docket entry at ECF No. 75 consists of a notice of filing, with a clean copy and red-lined version of Plaintiff’s First Amended Complaint attached thereto. The Clerk’s office instructed Plaintiff to re-file the amended Case No. 3:2 0-cv-0112 M emorandum Opinion VPaIg Let 3d .of 8 must , Case No. 3:20-cv-0093, 2022 U.S. Dist. LEXIS 34405, at *6-7 (D.V.I. Feb. 28, 2022); 28 U.S.C. §§ 1331-33. Thus, if the Court “lacks subject-matter jurisdiction, the [C]ourt dismiss the action.” Fed. R. Civ. P. 12(h)(3) (emphasis added). Plaintiff seeks remand of this matter because her First Amended Complaint is devoid of federal claims. According to Plaintiff, in the absence of any federal claims, the Court no lBo.n Ignevro cluann teaxreyr cDisisem juisrissadli uctniodne ro vFeerd ethriasl cRausele. of Civil Procedure 41(b) Defendants ground their motion to dismiss upon Rule 41 of the Federal Rules of Civil Procedure. Subsection b of Rule 41 states: If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits. sua sponte Dubois v. Gateway Serv. Station, LLC Fed. R. Civ. P. 41(b). In this judicial circuit, a Rule 41(b) dismissal may be made upon motion by a party or by the Court. , 2021 U.S. Dist. LEXIS 210348, at *3 (D.V.I. Nov. 1, 2021) (“Dismissal under Rule 41(b) is often preceded by sua sponte a motion from a defendant. However, the Third Circuit has recognized that a district court has the authority to dismiss a case , provided that the plaintiff is provided with an Briscoe v. Klaus opportunity prior to dismissal to explain its reasons for failing to prosecute the case or to Emerson v. Thiel Coll. comply with a court order.” (citing , 538 F.3d 252, 258 (3d Cir. 2008) (citing , 296 F.3d 184, 191 (3d Cir. 2002))). See, e.g., Emerson v. Thiel Coll. The decision to grant a Rule 41(b) dismissal is within the sound discretion of the Court. , 296 F.3d 184, 190 (3d Cir. 2002) (where the lower court dismissed with prejudice the plaintiff’s remaining claims against the defendant pursuant to Rule 41(b) and the appellate court states,” We review such an order for an abuse of discretion . . .. While we defer to the District Court's discretion, dismissal with prejudice is Adams v. Trs. of the N.J. Brewery Emps.' Pension Tr. Fund only appropriate in limited circumstances and doubts should be resolved in favor of reaching cited in Hamer v. Livanova Deutschland GmbH a decision on the merits.” (citing , 29 Case No. 3:2 0-cv-0112 M emorandum Opinion Page 4 of 8 Tallard Technologies, Inc. v. Iprovide Grp., Inc 177 (3d Cir. 2021)); ., Civil Action 2004-101, Andrews v. Gov't of V.I. 2013 U.S. Dist. LEXIS 72284, at *6 (D.V.I. May 22, 2013) (“’A district court's decision to invoke this sanction is discretionary.’” (quoting , 25 V.I. 284 (D.V.I. 1990) Poulis v. State Farm Fire and Cas. Co (additional citation omitted). When determining whether to grant such a dismissal, the Court Emerson see also Tallard Technologies generally weighs the factors outlined in ., 747 F.2d 863, 868 (3d Cir. 1984). , 296 F.3d at 190; , 2013 U.S. Dist. Poulis v. State Farm Fire & Cas. LEXIS 72284, at *6 (“When considering dismissal as a sanction, a district court is ordinarily Co. required to consider and balance six factors enumerated in C. S, t7r4ik7i nFg.2 ad 8P6le3a (d3idn gC iurn. 1d9e8r 4F)e”d).e ral Rule of Civil Procedure 12(f) In the alternative, Defendants move to strike Plaintiff’s amended complaint pursuant to Federal Rule of Civil Procedure 12(f). Rule 12(f) provides: The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading United States Fed. R. Civ. P. 12(f). As this Court has stated: v. Southland Gaming of the V.I., Inc. The court has "considerable discretion" in striking an allegation. , 182 F. Supp. 3d 297, 317 (D.V.I. 2016). "The standard for striking a complaint or a poIrdt.ion of it isS tsetraikc tU, amnmd 'Coon.,l yL LaCl lve. gSatteiaokn 'sE mth Uatp , aIrnec .so unrelated to the plaintiffs' claims as to be unworthy of any consideration should be stricken.'" (quoting , 2009 U.S. Dist. LEXIS 101357, 2009 WL 3540786, Dorval v. Tinsley at *2 (E.D. Pa. Oct. 29, 2009)). , Civ. No. 19-23, 2020 U.S. Dist. LEXIS 7215, at *13 (D.V.I. Jan. 15, 2020). At the same time, "such motions are 'not favored and usually will be denied unless the Scionti Constr. Grp., LLC v. allegations have no possible relation to the controversy and may cause prejudice to one of Aptim Env't & Infrastructure, Inc the parties, or if the allegations confuse the issues in the case.'" Griswold v. Coventry First LLC ., Civil Action 2020-034, 2022 U.S. Dist. LEXIS 153030, at *4 River Road Dev. Corp. v. Carlson (D.V.I. Aug. 25, 2022) (citing , Civil Action No. 10-5964, 2015 U.S. Dist. LEXIS 19455, at *20 (E.D. Pa. Feb. 18, 2015) (quoting Case No. 3:2 0-cv-0112 M emorandum Opinion CPaogrep 5. of 8 see also, e.g., Luciano v. Tchrs. Ins. & Annuity Ass'n of Am. — Coll. Ret. Equities Fund , Civil Action No. 89-7037, 1990 U.S. Dist. LEXIS 6201, at *7 (E.D. Pa. May 23, 1990))); , Civil Action No. 15-6726 (ZNQ) (DEA), 2022 U.S. Dist. LEXIS 64671, at *9 (D.N.J. Apr. 7, 2022) (“However, ‘[m]otions to strike are generally viewed with disfavor[] and will usually be denied unless the allegations in the pleading have no possible relation to the controversy[] and may cause prejudice to one of the parties.’" (citatIiIoIn. sD oISmCiUttSeSdI)O).N A. Plaintiff’s Motion to Remand On the same date that Plaintiff filed her First Amended Complaint, Plaintiff also filed a Motion to Remand (Remand Mot.). In support of her motion, Plaintiff declares that her amended complaint contains only state law and common law claims, that no federal question remains, and that the parties lack diversity of citizenship. Remand Mot. at 2. Plaintiff Id concludes that the Court now lacks subject matter jurisdiction and must remand the matter to the Virgin Islands Superior Court. . Defendants oppose the motion, arguing that, by not including the three federal counts from her original complaint without leave of Court, Plaintiff’s amended complaint violates Rule 15 of the Federal Rules of Civil Procedure. Defendants’ Opposition to Plaintiff’s Motion to Remand to Superior Court (ECF No. 78) at 3- 4. Plaintiff retorts that she was ordered to amend her complaint and that she did so “’consistent with’” the Court’s Mem. Op. and Order. Plaintiff’s Reply to Opposition to Motion to Remand (ECF No. 82) at 1. Although Plaintiff insists that she amended her complaint “consistent with” the findings and directives of the Court, the Court finds otherwise. The scope of the Court’s Mem. 5 Op. and Order are limited to the counts and claims raised by Defendants in their motions. In its ruling, the Court denied Defendants’ motion to dismiss the federal claims contained in Count II, as well as the claims in Counts VII and VIII as against the individual defendants. The federal claims dismissed by the Court are those contained in Count I, in its entirety, and in 5 See Defendants’ motion for judgment on the pleadings took issue with eight of the eleven counts enumerated in Plaintiffs’ original complaint. Motion Stoe eDismiss pursuant to Federal Rule of Civil Procedure 12(c) (ECF No. 34), filed August 5, 2021; Mem. Op. (ECF No. 73) at 23. Defendants’ motion to dismiss the individual defendants Case No. 3:2 0-cv-0112 M emorandum Opinion Page 6 of 8 Count IX as to Defendants Michael and Barbara Barry, only. The Order, and by extension the carte blanche amendments allowed, is confined to those two changes to the federal counts/claims. The Court’s order does not give Plaintiff to amend her entire complaint; she was specifically ordered “to file an amended complaint that comports with the findings herein and incorporates the Court’s dismissal of Count I, parts of Count III, Count IV, parts of Count V, Count VI, and Count X; Counts II and IX as to the individual defendants; and, to cure the deficiencies, if possible, of Count X.” Mem. Op. (ECF No. 73) at 40. Thus, other than the two amendments to the federal counts/claims set forth by the Court, the other federal claims and allegations in support thereof should have remained as pleaded in Plaintiff’s original complaint. Further, the Court agrees with Defendants that, for any amendment not

contemplated or encompassed by the Court’s said Mem. Op. and Order, Plaintiff should have sought leave to amend under Fed. R. Civ. P. 15. Also, Plaintiff appears to be under the impression that the elimination of federal Collura v. City of Philadelphia claims deprives this Court of jurisdiction. Plaintiff is mistaken. As the Third Circuit Court of Appeals explains in , 590 F. App’x 180 (3d Cir. 2014), if a district court has federal question subject matter jurisdiction at the time of removal, amending the complaint to withdraw federal claims after removal does not defeat jurisdiction: Collura's complaint clearly invoked the First, Fourth, and Fourteenth Amendments of the Constitution, and 42 U.S.C. § 1983. The District Court thus had original jurisdiction to consider those claims, see 28 U.S.C. § 1331, and had supplemental jurisdiction to consider his related state-law claims, see 28 U.S.C. § 1367. Removal was therefore proper under 28 U.S.C. § 1441, and remand was not required. See Green v. America Online (AOL), 318 F.3d 465, 470 (3d Cir. 2003). Collura also challenges the District Court's later orders denying removal (Dkt. #67 and #94). He believes that because he dropped his federal claims from his Second Amended Complaint, the District Court was required to remand his case to state court. However, federal jurisdiction cannot be defeated by amending a complaint to eliminate federal claims after removal. See Westmoreland Hosp. Ass'n v. Blue Cross of W. Pa., 605 F.2d 119, 123 (3d Cir 1979); see also Ortiz-Bonilla v. Federación de Ajedrez de Puerto Rico, Inc., 734 F.3d 28, 36 (1st Cir. 2013) ("It is immaterial that a claimant in retrospect views her federal claims as surplus, or after removal, moves to strike the federal claims."). The District Court had subject matter jurisdiction over the removed complaint, and retained jurisdiction even when Collura Case No. 3:2 0-cv-0112 M emorandum Opinion IPdage 7 of 8 . at 184. Thus, even if the Court were to allow Plaintiff’s First Amended Complaint to stand as filed, the Court retains jurisdiction over the case. Consequently, the Court will deny BPl.a Dinetfiefnf’sd amnottsi’o Mn ototi roenm toan Ddi.s miss or Strike the Amended Complaint Defendants reiterate and expand upon the arguments from their opposition to supra Plaintiff’s motion to remand in their motion to dismiss/strike. The Court has expressed, , its finding that the amendments contained in Plaintiff’s First Amended Complaint do not conform to the amendments authorized by the Court in its Mem. Op. and Order (ECF Nos. 73 and 74); thus, the amendments exceed the scope of the Court’s order. When the Court See, e.g., Haysbert v. Gov't of the V.I orders specific amendments, a party is not free to stray from the limits of the order, and the Court may strike the amended pleading. ., Civil Action No. 2014-0040, 2022 U.S. Dist. LEXIS 30630, at *8 (D.V.I. February 22, 2022) (“A Motion to Strike Brown v. Wolf may be granted, within the Court's discretion, where a plaintiff’s amended complaint exceeds the scope of the Order allowing the amendment.”) (citing , No. 2:16-cv-1081, U.F.C.W Local 56 Health & Welfare Fund v. J.D.'s Mkt. 2021 U.S. Dist. LEXIS 31968, 2021 WL 4312763, at *15-16 (W.D. Pa. Feb. 19, 2021) and , 240 F.R.D. 149, 154 (D.N.J. 2007) Benta v. Christie's, Inc (amended pleadings that exceed the scope of amendment allowed by the court may be stricken under Rule 12(f)); ., Civil Action No. 2013-0080, 2021 U.S. Dist. LEXIS 115075, at *12-13 (D.V.I. June 21, 2021) (“A Motion to Strike may be granted, within U.F.C.W. Local 56 Health & Welfare Fund v. J.D.'s Mkt. the Court’s discretion, where a plaintiff's amended complaint exceeds the scope of the Order Dover Steel Co., Inc. v. Hartford Acc. & Indem. Co. allowing the amendment.” (citing , 240 Masri v. Cruz F.R.D. 149, 154 (D.N.J. 2007) and , 151 F.R.D. 570, 575-76 (E.D. Pa. 1993)); , 17 Civ. 8356 (AT) (KHP), 2019 U.S. Dist. LEXIS 95204, at *6 (S.D.N.Y. June 5, 2019) ("’District courts in this Circuit have routinely dismissed claims in amended complaints where the court granted leave to amend for a limited purpose Palm Beach Strategic Income, LP v. Salzman and the plaintiff filed an amended complaint exceeding the scope of the permission granted.’" (quoting , 457 F. App'x 40, 43 (2d Cir. 2012))) (additional citation omitted). As Defendants correctly observe, the “Court specifically told Plaintiff what amendments were acceptable and what changes Plaintiff had permission to Case No. 3:2 0-cv-0112 M emorandum Opinion Page 8 of 8 See make.” Reply in Support of Motion to Dismiss or Strike Amended Complaint (ECF No. 94) at 2. The amendments to be incorporated are clear and specific. Mem. Op. (ECF No. 73) at 40. However, in light of the fact that a dismissal pursuant to Rule 41(b) “operates as an adjudication on the merits,” Fed. R. Civ. P. 41(b), the Court will not dismiss the amended complaint, but will strike it from the record. Consequently, the Court will grant, in part, and deny, in part, Defendants’ motion. IV. CONCLUSION Because the Court properly had subject matter jurisdiction over this proceeding at the time of removal, despite the absence of federal claims in Plaintiff’s First Amended Complaint, the Court retains jurisdiction. Hence, the Court will deny Plaintiff’s Motion to Remand. Further, based upon the Court’s finding that Plaintiff’s First Amended Complaint exceeds the scope of the amendments permitted by the Court’s Mem. Op. and Order (ECF Nos. 73 and 74), the Court will strike the First Amended Complaint and will order Plaintiff to file an amended complaint that conforms with the Court’s Mem. Op. and Order (ECF Nos. 73 and 74). An appropriate order follows. Dated: / Robert A. Molloy ROBERT A. MOLLOY July 1 1 , 2023 Csh/i ef Judge