Lima Enterprises, Inc. v. Oliver Exterminating of St. Thomas, Inc. and Irad Ruan

• Court: Superior Court of The Virgin Islands
• Decided: June 9, 2021
• Docket: ST-17-CV-380
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN

) LIMA ENTERPRISES INC ) ) Case No ST 2017 CV 00380 Plaintiff ) v ) TRESPASS ) NEGLIGENCE OLIVER EXTERMINATING OF ) GROSS NEGLIGENCE ST THOMAS INC and IRAD RUAN ) DECLARATORY ) RELIEF Defendants ) PRESCRIPTIVE ) BASEMENT

2021 VI Super 63U

MEMORANDUM OPINION

111 THIS MATTER is before the Court on Defendants’ Motion to Dismiss

Plaintiffs Complaint, Motion for More Definitive Statement (“motion to dismiss”),1

and Plaintiff's Motion for Hearing 2 The Court will grant, in part, and deny, in part,

Oliver Exterminating s motion to dismiss Moreover, the Court will deny Lima

Enterprises’ motion for hearing as moot

I FACTS

112 On August 24, 2017, Plaintiff Lima Enterprises Inc (“Lima Enterprises”) filed

a complaint against Oliver Exterminating of St Thomas, Inc and Irad Ruan (jointly

1 The motion to dismiss was filed November 7, 2018 and is fully briefed 2 The motion for hearmg was filed February 18, 2020 Lima Enters , Inc v Oliver Exterminating of St Thomas, Inc Case No ST 2017 CV 00380 Memorandum Opimon 2021 VI Super 63U Page 2 0f 15

“Oliver Exterminating”) Lima Enterprises alleges claims for trespass, negligence,

gross negligence, declaratory rehef and prescriptive easement 3

113 Lima Enterprises alleges the following On February 1, 1982, title to Parcel

Nos 30A and 30B Estate Taarnebjerg, St Thomas, VI was conveyed to Lima

Enterprises In September 2010, Oliver Exterminating purchased Parcel No 30

Remainder and Remainder Parcel I, Tract II Estate Taarnebjerg, Wthh are adjacent

to the parcels owned by Lima Enterprises When Oliver Exterminating purchased its

parcels, it was and still is burdened by an access easement in favor of Lima

Enterprises’ parcels Additionally, Lima enterprises alleges

Since at least 1959, Parcel 30 Taarnebjerg has been burdened by the Access Easement in favor of Parcel Nos 30A and 30B Estate Taarnebjerg , which Access Easement provides pedestrian and vehicular access to [Lima Enterprises’] Properties and travels west across Parcel No 30 Remainder and then travels south across the western boundaries of Parcel No 80 Remainder, This Access Easement provides the only means of access to [Lima Enterprises’] apartment building Wh1ch, since the early 1980’s, has been built and expanded across Parcel Nos 30A and 30B Estate Taarnebjerg

3 Lima Enterprises also requested a tempoxary restraining order preliminary and permanent Injunction enjoining Oliver Exterminating from causing further damage to Lima Enterprises’ Access Easement and compensatory and punitive damages The Court entered a temporary restraining ordel on August 25, 2017, and set a hearing on the motion for preliminary injunction for September 6, 2017 Hurricane Irma struck St Thomas on Septembe1 6, 2017, and therefore the hearing on preliminary injunction was cancelled In the meantime, at a status conference on August 31, 2017, (prior to Hun icane Irma) the pan mes advised the court they thought the matter would be resolved and settled After the hurrlcane and still no settlement, the hearing on preliminary injunction was rescheduled for December 5, 2017 But at the Plaintiffs request, it was postponed sme die to allow the partles an opportunity to finalize settlement documents The Plaintiff has not requested a new date for a hearing on the preliminary injunction Lima Enters Inc V Ohver Exterminating of St Thomas, Inc Case No ST 2017 CV 00380 Memorandum Opinion 2021 VI Super 63U Page 3 0f 15

Lima Enterprises alleges that a “1985 survey by C A Hamilton & Associates, Inc ,

bearing map No D9 3208 T85, clearly establishes the Access Easement running

across Parcel No 30 Remainder ” Additionally, Lima Enterprises alleges that,

“[e]xpressly, the 2010 deed to [Oliver Exterminatlng] confirms that [Oliver

Exterminating]’s rights in and to their property at Parcel No 30 Remainder Estate

Taarnebjerg, are subject to and burdened by all easements of record, including the

Access easement ”

1,14 Lima Enterprises alleges that Oliver Exterminating ‘engaged the services of

an excavator and proceeded to mark out and demolish the entire access road1 to

Parcel Nos 30A and 30B Taarnebjerg, leaving [Lima Enterprises] and its tenants

completely without vehicular access to the property, and limited food traffic across a

narrow dangerous strip of land ” Lima Enterprises alleges that Oliver

Exterminating’s excavation work has left a “deep open pit ” ‘which [Lima

Enterprises’] tenants must walk close to while walking on the Access Easement to

get to their apartments ” Lima Enterprises alleges that Oliver Exterminating s

excavatlon work “cut off access to the tenant parking’ and “all foot traffic across the

4 Oliver Exterminating alleges, It is undisputed that from 2010 until the p1 esent, and for many years prim, a right of way existed over the Adjacent Propel ty to permit the ingress and egress to and from the Propelties It is equally undisputed that in 2017, while perf01ming legal and necessary excavation on Oliver Extel mlnation s propelty Immediately adjacent to the right of way, unexpectedly heavy rains caused portions of the easement on the Adjacent Property to collapse, temporarily nan owing the right of way and rendering the path over the subservient property impassable for vehlcular traffic Lima Enters , Inc V Ohver Exterminating of St Thomas, Inc Case No ST 2017 CV 00380 Memorandum Opinion 2021 VI Supe1 63U Page 4 of 15

front of the apartment building, and access to the second floor of the apartment

building by way of the southern staircase ” Lima Enterprises also alleges that Oliver

Exterminating’s excavation work “cut off access to the cistern on [Lima Enterprises’]

property,” “the WAPA meters” and “the water supply lines and building sewer line

Which run across Remainder Parcel 1 0f Tract III Estate Taarnebjerg and provide

connection to the potable WAPA water meters and the public sewer for the apartment

building on Parcel Nos 30A and 30B Estate Taarnebjerg( the ‘Utility Easement’) ”

Addltionally, Lima Enterprises alleges that the excavation work cut off access by

emergency vehicles

${5 On November 7, 2018, Oliver Exterminating filed a motion to dismiss or for a

more definitive statement

II ANALYSIS

A Motlon to dismiss

1 Trespass, Negligence, Gross Negllgence, Declaratory Rellef and Prescriptive Easement

1E6 Oliver Exterminating argues that Lima Enterprises,

has failed to provide adequate factual allegations to support [its] claim that a 17’ Wide easement existed, by prescription, need, adverse possession, or otherwise [Lima Enterprises] gives no legal or physical description of the easement, neither its size, length, width, location, boundaries, nor other identifying markers No fractional designation, metes and bounds, or course and dlstances are given No historical statements are provided, giving either [Oliver Exterminating] or this Court information about the easement’s original size, expansions if Lima Enters , Inc V Oliver Exterminating of St Thomas Inc Case No ST 2017 CV 00380 Memorandum Opinion 2021 VI Super 63U Page 5 of 10

any or how and when they were obtained Indeed, [Lima Enterprises’] Complaint is nothing more than naked, wholly unfounded, and rote recitals of the elements than [sic] cannot support a claim against [Ohver Exterminating] Consequently, [Oliver Exterminating 5] Motion to Dismiss should be granted

Elaborating, Oliver Exterminating argues that Lima Enterprises “Complaint is

nothing more than a rote recitation of the legal elements for neghgence, gross

negligence, declaratory relief, trespass, and prescriptive easement without adequate

supporting allegations or ‘factual enhancement ”’0

$7 Oliver Exterminating argues that, “[f]0r instance in [Lima Enterprises’]

negligence claim, [Lima Enterprises] fails to describe [Oliver Exterminating’s]

alleged duty to [Lima Enterprises] or breach of the same, [Lima Enterprises] makes

no properly founded allegations regarding causation ” Oliver Exterminating also

argues that Lima Enterprises’ gross neghgence clalm adds the “detail that [Oliver

Exterminating] excavated ‘after they were expressly warned by [Lima Enterprises], ”

but “fails to allege ‘a wanton and reckless disregard for others’ as required to sustain

such a claim ”6

118 Additionally, Oliver Exterminating argues that Lima Enterprises’ “claim of

prescriptive easement fails to make any factual allegations ” Oliver Exterminating

3 Ohver Exterminating uses Brady U Cmtron, 55 VI 802 (VI 2011), overtuled by MLlls Williams v Mapp, 67 VI 574 (V I 2017), to support its argument However, this standard was rejected by the Supreme Court of the Virgin Islands when the V I Rules of C1vil Procedure was adopted See Baszc Servs Inc U Govt of the VI 2019 VI 21 1,1 10 (citing MlllS Williams 67 VI at 580) Salkeld 0 Marriott Ownership Resorts St Thomas 2020 VI Super 81U 1W 4 5 6 The Court finds that the automatic requirement to list elements of a claim in a complaint was 1ejected w1th BIady See MLlls Williams 67 VI at 080 86' see Salkeld 1H} 4 5 Lima Enters , Inc V Oliver Exterminating of St Thomas, Inc Case No ST 2017 CV 00380 Memorandum Opinion 2021 VI Super 63U Page 6 0f 15

argues that Lima Enterprises “gives no specifics of When or how the easement was

created, its size, shape, dimensions ” Moreover, Oliver Exterminating argues that

“[t]he Complaint is silent regarding whether the alleged easement was obtained with

the subservient property owner’s permission as reflected in [Lima Enterprises] own

exhibits or was truly ‘adverse’ as alleged in the Complaint ” Oliver Exterminating

argues that “the absence of this factual avowal regarding adversity or permissiveness

is fatal to [Lima Enterprises’] cause of action ”7

19 Moreover, Oliver Exterminating argues that Lima Enterprises “count for

declaratory relief includes neither facts nor a prayer for relief; it is simply a single,

unsubstantiated conclusion of law ”

1110 Lima Enterprises argues that Oliver Exterminating’s “arguments go to the

merits of th[e] case ” Moreover, Lima Enterprises argues that Oliver Enterprises has

“not identified what allegation in the Complaint fails the Rule 8(a)(2) pleadings

standard ”

$11 Under Virgin Islands Rules of Civil Procedure 12(b)(6), “[e]very defense to a

claim for relief in any pleading must be asserted in the responsive pleading if one is

required But a party may assert the following defense[] by motionl] failure to

state a Claim upon Which relief can be granted ” According to V I R CIV P 8(a)(2), “a

' Oliver Exterminating argues that this lack of detail is fatal because, “[alccess upon the subserv1ent property is not sufficiently adverse if it had the burdened property owner 5 permission ” See Hodge v Bluebealds Castle 06 VI 59, 73 (VI Super Ct 2012) vacated on other grounds by, Hodge v géuigicgrgds Castle Inc 62 VI 671 (VI 2015)’ Schmdel v Pelican Beach 16 VI 237 248 (VI Super Lima Enters , Inc V Oliver Exterminating of St Thomas, Inc Case No ST 2017 CV 00380 Memorandum Opinion 2021 VI Super 63U Page 7 of 15

pleading that states a claim for relief must contam (2) a short and plain statement

of the claim showing that the pleader is entitled to relief because this is a notice

pleading jurisdiction” VI R CIV P 8(a)(2) “The purpose of the notice pleading

standard is to avoid ‘dismissals of cases based on failure to allege specific facts Which,

if established, plausibly entitle the pleader t0 rehef ” Basw Servs Inc v Gov t of the

VI 2019 V121 T; 10 (citing VI R CIV P 8 Reporters Note‘ lels Williams 67 VI

at 585) “Even if a complaint is ‘Vague,’ ‘inartfully drafted,’ ‘a bare bones outline,’ or

‘not a model of specificity,’ the complaint may still be adequate so long as it can

reasonably be read as supporting a claim for relief, giving the defendant notice of that

claim Id 11 12 (quotmg Casaday v Allstate Ins Co 232 P 3d 1075 1080 (Utah Ct

App 2010))

1112 Oliver Exterminatlng does identify specific alleged defects in Lima

Enterprises’ complaint However, Lima Enterprises is not required under V I R CIV

P 8(a)(2) to “allege specific facts which, if established, plausibly entitle [it] to relief ”

See Baszc Servs Inc , 1? 10 (citation omitted) (quoting V I R CIV P 8 Reporter’s Note)

Lima Enterprises need only to file a complaint that “can reasonably be read as

supporting a claim for relief, giving the defendant notice of that claim ” See Baszc

Servs Inc , $1 12 (quotlng Casaday, 232 P 3d at 1080) Lima Enterprises argues that

it has met the V I R CIV P 8(a)(2) pleading standard The Court Agrees

1313 Lima Enterprises alleges that Oliver Exterminating’s excavation work

destroyed an access and ut1hty easement through Oliver Exterminatmg’s property to Lima Enters , Inc V Oliver Extermlnating of St Thomas, Inc Case No ST 2017 CV 00380 Memorandum Opinion 2021 VI Super 63U Page 8 of 15

Lima Enterprises’ apartments, water and sewer lines Lima Enterprises alleges that

the excavation work left no vehicular access to the apartments or utilities

Additionally, Luna Enterprises alleges that the work left a “deep open pit” and a

narrow, dangerous path that residents of the apartments must travel to reach their

homes The Court finds these facts adequate to reasonably support a claim for relief

for negligence and gross negligence See Basic Servs Inc, T; 12 (quoting Casaday

232 P 3d at 1080)

$14 Lima Enterprises emphasizes that the access easement and utility easement

are the only means of access to the apartment buildings, water supply and sewer

disposal areas and have been in “uninterrupted, exclusive, actual, physmal adverse,

continuous, notorious under claim or color of title” use “for more than 15 years ” Lima

Enterprises alleges that, “[s]1nce at least 1959, Parcel 30 Taarnebjerg has been

burdened by the Access Easement in favor of Parcel Nos 30A and 30B ”8 Additionally,

L1ma Enterprises specifically alleges that, the “Access Easement provides the only

means of access to [its] apartment building which, since the early 1980’s, has been

built and expanded across Parcel Nos 80A and 30B ”9 The Court finds these facts

adequate to reasonably support a clalm for rehef for prescriptive easement See Basic

Sews Inc #1 12 (citing Casaday 232 P 3d at 1080)

8 Lima Enterprises also alleges that Ohver Exterminating s 2010 deed expressly confirms that Oliver Exte1minat1ng 5 property is burdened by “all easements of xecord including the Access Easement 9 Additionally, L1ma Enterprises argues that, ‘it 1s inappropriate at the Motion to Dismiss stage to test the substantive elements of the claim of a prescriptive easement Lima Enters , Inc V Oliver Exterminating of St Thomas, Inc Case No ST 2017 CV 00380 Memorandum Opinion 2021 VI Super 63U Page 9 of 15

17:15 Lima Enterprises’ count for declaratory relief alleges that Oliver

Exterminating has “destroyed [Lima Enterprises] Access Easement and impaired its

use by [Lima Enterprises] and its guests and invitees ” Additlonally, Lima

Enterprises’ declaratory relief count states, “[t]he Court should declare that Oliver

Exterminator’s [sic] Adjacent Parcels are burdened by the Access Easement for

pedestrian and vehicular traffic in favor of [Lima Enterprises’] Properties ’ The Court

finds this adequate to “reasonably read as supporting a claim for relief” for

declaratory judgment See Basic Ser US Inc , 1] 12 (citing Casaday, 232 P 3d at 1080)

1116 In sum, the Court finds that the allegations in the complaint are adequate to

reasonably support claims for negligence, gross negligence, prescriptive easement

and declaratory judgment See Basic Servs, Inc , 1] 12 (citing Casaday, 232 P 3d at

1080) Moreover, Oliver Exterminating’s motion to dismiss does not persuade the

Court that Lima Enterprises allegations could not establish a claim for trespass 10

Therefore, the Court will deny Oliver Exterminating’s motion to dismiss these counts

2 Indlvidual capacity

$17 Oliver Exterminating argues that the complaint fails to establish a cause of

action against Defendant Irad Ruan, individually Oliver Exterminating argues that

Lima Enterprises acknowledges Defendant Oliver Exterminating is the registered

owner of the Adjacent Property and that, by Lima Enterprises’ own admissions, the

10 Lima Enterprlses argues that “[d]iscove1y will flesh out the greater particulals of the gross negligence the negligence and the trespass clalms ’ Lima Enters , Inc V Oliver Exterminating of St Thomas, Inc Case No ST 2017 CV 00380 Memorandum Opinion 2021 VI Super 63U Page 10 of 15

actions of Irad Ruan were limited to his role as president of Oliver Exterminatmg

Therefore, Oliver Exterminating argues Lima Enterprises has failed to establish any

cause of action against Ruan, individually 11 Although Lima Enterprises argues to

the contrary, the Court agrees with Oliver Exterminating

$18 Specifically, Oliver Exterminating is correct that Lima Enterprises’ complaint

alleges only that Ruan acted in his capacity as president of Oliver Exterminating

Lima Enterprises’ complaint states in relevant part “Defendant Irad Ruan , on

information and belief, is the president and owner of [Oliver Exterminating] and

at all times material herein acted on behalf of [Oliver Exterminating] within the

course and scope of his office as president of [Oliver Exterminating] ” Moreover, the

Court finds nothing in the complaint or attached affidavits allege Ruan acted in his

individual capacity Therefore, the complaint cannot “reasonably be read as

supporting a claim for relief” against Ruan, individually See Basw Se) vs Inc T] 12

(quoting Casaday 232 P 3d at 1080) Accordingly the Court grants Oliver

Exterminating’s motion to dismiss the complaint against Ruan, individually

B Motion for more definitive statement

‘J 19 Oliver Exterminating argues that Lima Enterprises’ “Complaint contains none

of the necessary descriptions or verbiage to either support [Lima Enterprises’] claims

11 Additionally, Oliver Exterminating argues that Lima Enterprises “has not asserted anything that would qualify this Court in piercing the shield of [Ruan s] corporate protections to require his appearance and defense in the present action ” Lima Enters , Inc V Oliver Exterminating of St Thomas, Inc Case No ST 2017 CV 00380 Memorandum Opinion 2021 VI Super 63U Page 11 of 15

as written or [Lima Enterprises’] informal contention that the right of way was 17’ in

Width and must be returned to the same ”12 Oliver Exterminating argues, “[w]ithout

a description of the size, shape, position, width, length, construction, acquisition, or

history of the right of way, this Court is as powerless to resolve this dispute as [Oliver

Exterminating is] to defend against it ”13 Additionally, Oliver Exterminating argues

that, “[a]ccurate and full legal and physical descriptions accompanied by certified

surveys or other competent evidence w111 greatly assist [Oliver Exterminating] and

th[e] Court

1120 Oliver Exterminating argues that, “requiring [it] enter unknowing and

improvident answers to [Lima Enterprises’] tissue thin allegations would require

12 Oliver Exterminating argues that, [it] has attempted and continues to attempt to rectify the circumstances created by heavy and unanticipated rains which washed away a portion of the easement over the Adjacent Properties [Oliver Exterminating] has made the necessary efforts to insert footings and constx uct a retaining wall necessary to reconst1 uct and repave the right of way but [Lima Entel prises] has requested that [Oliver Exterminating] proceed n0 furthel pending an agreement or court order [Oliver Exterminating] asse1 ts that the original easement was 10 in width, sufficient to accommodate traffic to and from the Property [Lima Entel prises] asserts contrastingly, that the original and/or adversely possessed easement enjO} ed a width of 17 Additionally, Oliver Exterminating argues that “the parties are unable to come to resolution outside of court without additional support f01 [Lima Enterprises] position that a 17’ wide easement was created and obtained thi ough adverse possess10n Oliver Exterminating a1 gues, “[t]hat a right of way existed over [its] property that was inadvertently destroyed due to heavy flooding and nearby excavation is largely undisputed’ Howevex, Luna Enterprises does dispute thlS argument Specifically, Lima Enterprises argues that it takes issue with [Oliver Exterminating s] categoxization 0f the impassibility of the right of way as ‘temporary, and of the fact that unexpected heavy lains’ caused a portion of the easement to collapse, or of the notion that [Lima Ente1 prises] has not provided factual allegations to support a 17’ side easement ” 13 Similarly, Ohver Exterminating argues that, ‘[f]or [it] to assess [Lima Enterprises] claim, [Lima Enterprises] must endeavor to amend [its] Complaint to give a clear, concise, and comprehensive claim in support of the extended 17’ easement Regrettably, [Lima Enterprises’] Complaint does nothlng of the sort ” Lima Enters Inc V Oliver Exterminating of St Thomas, Inc Case No ST 2017 CV 00380 Memorandum Opinion 2021 VI Super 63U Page 12 of 15

[Oliver Exterminating] to leap head first into a lawsuit that [it] can barely

understand in the hope that future discovery might resolve the factual disputes ”14

1121 UnderVI R CIV P 12(e)

A party may move for a more definite statement of a pleading to Which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired

VI R CIV P 12(e) In Wintberg Heights Condo Owners Ass n v USVI Solar I LLC

2019 VI Super 177 [hereinafter Wmtberg], the Superior Court of the Virgin Islands

states, “motions for a more definite statement are disfavored and granted only

sparingly Wmtberg 1] 3 (citing Alleyne v Diageo USVI Inc 69 VI 307 318 (VI

Super Ct 2018) Woodson v Akal Civil No ST 16 CV 399 2017VI LEXIS 130 at

*2 (VI Super Ct Aug 17 2017) (unpublished) Allstate Indem Co v Dixon 304

FRD 580 582 (W D Mo 2015)) Additionally Wmtberg states that [a] more

definite statement W111 ordinarily be required only When the pleading is

‘unintelligible’ such that a defendant cannot fairly be expected to frame a response

or denial, at least not w1thout risking prejudice” Id (citing Tharp 0 District of

Columbza 309 F R D 88 90 (D D C 2015))

14 Additionally, Ohver Exterminating a1 gues that Lima Enterprises “Complaint which assumes much but illuminates little will not assist the parties or this Court in resolving this matter ’ Lima Enters , Inc v Oliver Exterminating of St Thomas, Inc Case No ST 2017 CV 00380 Memorandum Opmion 2021 VI Super 63U Page 13 0f 15

$22 The Court agrees with Lima Enterprises that Oliver Exterminating is

“improperly using Rule 12(e) as a substitute for discovery”10 Motions for a more

defimte statement “are not a substitute for discovery and ordinarily will not be

granted Where the level and nature of detail sought is more properly a role for

discovery ” Wmtberg, T; 3 (citing Allstate Indem Co , 304 F R D at 582; Sanchez U

City of Fresno 914 F Supp 2d 1079 1121 22 (E D Cal 2012)) Lima Enterprises

complaint does not allege that the easement is seventeen inches Wide However, the

Court finds that Lima Enterprises’ complaint as written provides adequate

information for Oliver Exterminating to “fairly be expected to frame a response ” See

Basic Se; vs Inc 11 12 (citing Casaday 232 P 3d at 1080) Wintberg 11 3 (citing Tharp

309 FRD at 90) Therefore, Oliver Exterminating’s motion for a more definite

statement is denied

C Attorney’s fees

1:23 Lima Enterprises argues that Oliver Exterminatings Motion for a More

Definite Statement appears calculated for dilatory purposes and not for the

elucidation of matters pending before this Court [Lima Enterprises] should not be

prejudiced by such actions and should be awarded [its] attorneys fees and costs ”

Lima Enterprises provides no clear authority to support a request for attorney’s fees

1° Addltionally, Lima Enterprises argues that Oliver Exterminating’s motion to dismiss shows Ohver Exterminatlng’s ‘understandmg of the alarms [Lima Enterprises] has brought against [it], and of the glounds for those claims ” Lima Enterprises also argues that thele is a voluminous pleading record [that] support’s [its] Complamt ” Lima Enters , Inc V Oliver Exterminating Of St Thomas, Inc Case No ST 2017 CV 00380 Memorandum Opinion 2021 VI Super 63U Page 14 0f 15

at this point in the case See Bell U Radchffe Case No ST 13 CV 392 2014 VI

LEXIS 119 at *7 8 (V I Super Ct Apr 30 2014) (unpublished) Nor does the Court

find good grounds for an award of attorney’s fees for the filing of Oliver

Exterminating’s motion Therefore, the Court will deny the portion of Lima

Enterprises’ opposition that seeks an award of fees

D Motion for Hearing

$524 On February 18, 2020, Lima Enterprises filed a motion for a hearing, or in the

alternative for a ruling, on Oliver Exterminating’s motion to dismlss or for a more

definite statement With the issuance of this memorandum opinion, the motion for a

hearing becomes moot Therefore, the Court Will deny Lima Enterprises’ motion for

hearing as moot

III CONLCUSION

$25 The Court finds that Lima Enterprises claims meet the VI R CIV P 8(a)(2)

standard against Defendant Oliver Exterminating, but not against Defendant Ruan,

Individually Additionally, the Court finds that Oliver Exterminating is not entitled

to a more definite statement Moreover, the Court finds that Lima Enterprises is not

entitled to attorney’s fees and costs Finally, the Court finds that Lima Enterprises’

motion for a hearing is moot Lima Enters , Inc v Oliver Exterminating of St Thomas, Inc Case No ST 2017 CV 00380 Memorandum Opinion 2021 VI Super 63U Page 10 0f 15

An order consistent with this memorandum opinion Will immediately follow

DATED June 9 2021 g 2% 27% Z64 gig Kathleen ackay Judge of the Superior Court of the Virgin Islands

ATTEST TAM RA CHARLES Clerk he 00‘ 1:

BY M ' @NNA D 0N0 AN (é Court Clerk Supervisor / I /§@“ IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN

) LIMA ENTERPRISES INC ) ) Case No ST 2017 CV 00380 Plaintiff ) V ) TRESPASS ) NEGLIGENCE OLIVER EXTERMINATING OF ) GROSS NEGLIGENCE ST THOMAS INC and IRAD RUAN ) DECLARATORY ) RELIEF Defendants ) PRESCRIPTIVE ) EASEMENT

ORDER

In Accordance with the Memorandum Opinion entered on this day, it is hereby

ORDERED that the Defendants’ motion to dismiss is GRANTED, in part,

and DENIED in part

ORDERED that the Defendants’ motion to dismiss Lima Enterprises

complaint against Ruan, 1ndividually, is GRANTED“

ORDERED that Defendants’ motion to dismiss the other claims is DENIED

ORDERED that Defendants motion for a more definite statement is

DENIED'

ORDERED that Lima Enterprises’ request for attorney’s fees and costs is

DENIED' and it is further

ORDERED that Lima Enterprises’ motion for hearing is DENIED AS

MOOT‘ Lima Enterprises V Oliver Extermmating Case No ST 2017 CV 00380 Order Page 2

ORDERED that Oliver Exterminating shall file an answer to the complaint

Within twenty one 121) days of entry of this Order; and it is further

ORDERED that copies of the Memorandum Opinion and this Order shall be

directed to Andrew L Capdeville, Esq and Marie E Thomas Griffith, Esq

DATED June ‘? 2021 i/émfl Zggc/Z/Ua: Kathlee Mackay Judge of the Superior Court of the Virgin Islands

ATTEST TA RA CH LES Clerk th/ Cou

BY M“ D NNAD D! NO Ne 37 art Clerk Supervisor / /9®f