Peter Ghirawoo v. Faye John-Baptiste, Peppertree Hill Landowners Association, Inc., Leatrice Garcia, and Johnny and Oreta Hughes

• Court: Superior Court of The Virgin Islands
• Decided: February 24, 2021
• Docket: SX-19-CV-555
• Status: Published

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST CROIX PETER GHIRAWOO

PLAINTIFF, Civil No SX 19 CV 555 V ACTION FOR DAMAGES FAYE JOHN BAPTISTE PEPPERTREE JURY TRIAL DEMANDED HILL LANDOWNERS ASSOCIATION INC LEATRICE GARCIA AND JOHNNY CITE AS 2021 VI SUPER La? AND ORETA HUGHES

DEFENDANTS

Appearances Trudy Fenseter, Esq Law Office of Trudy Fenster P C Christiansted US VirginIslands For Plamtlfi

James L Hymes, III, Esq Law Offices of James L Hymes III P C Christiansted U S Virgin Islands Fm Defendch Peppertree H111 Landowners A9901 I(II‘IOIZ Inc

MEMORANDUM OPINION AND ORDER

WILLOCKS Presiding Judge

THIS MATTER is before the Court ma sponte

BACKGROUND

On October 17 2019 Plaintiff Peter Ghirawoo s (hereinafter Plaintiff ) filed a complaint

against Defendant Faye John Baptiste (hereinafter John Baptiste ) Defendant Peppertr ee Hill

Landowners Association Inc (hereinafter PHLA ) Defendant Leatrice Garcia (hereinafter

Garcia ) Defendant Johnny Hughes (hereinafter 1 Hughes ) and Defendant Greta Hughes

(hereinafter 0 Hughes and together with Defendant John Baptiste Defendant PHLA

Defendant Garcia and Defendant J Hughes Defendants ) in connection with an alleged motor Ghmmoo 1 John Bapmte er a! 9X 19 CV 555 Memorandum Opinion and Order 2021 VI SUPER 3:“) Page 2 m no

vehicle incident that occurred in the vicinity of Plot No 212 Mary s Fancy St Croix U S Virgin

Islands Plaintiff alleged the following causes of action Count I Negligence (against all

Defendants) Count II Gross Negligence (against all Defendants) Count III Loss of Use (against

all Defendants) and Count IV Punitive Damages (against all Defendants)

On December 9 2019 Defendant PHLA filed its answer and affirmative defenses in

response to Plaintiff s complaint On June 29 2020 Plaintiff filed a motion for a 90 day extension

period 01 until September 30 2020 to complete service of processes as to Defendant Garcia and

Defendant Baptiste (hereinafter Motion for Extension ) A copy of the following documents were

attached to Plaintiff 9 motion (i) a return of non service as to Defendant Garcia and a

conesponding affidavit by the process server Felipe Torres Jr indicating that he did not serve

Defendant Garcia (ii) a retum of service as to Defendant J Hugth and a corresponding affidavit

by the p1 ocess server Felipe Torres Jr indicating that he served Defendant 1 Hughes on Novembel

5 2019 (iii) an affidavit by the process server Felipe Tones Jr indicating that he did not serve

Defendant John Baptiste and (iv) a return of service as to Defendant PHLA and a corresponding

affidavit by the process server Felipe Torre: Jr indicating that he served Defendant PHLA via

Attorney Curt Otto Esq on November 5 2019 ' On September 29 2020 Plaintiff filed a notice

of proof of service as to Defendant John Baptiste and attached a return of service as [0 Defendant

John Baptiste and a corresponding affidavit by the process server Felipe Torres .1 r indicating that

he served Defendant John Baptiste on August 4 2020

On December 8 2020 Defendant PHLA filed a motion for leave to file a first amended

answer to add a crossclaim which the Court subsequently granted and deemed Defendant PHLA s

' It appears that lheSL documents were not previously tiled with the Court Ghumum 1 John Bapmte er a] 9X 19 CV 555 Memorandum Opinion and Order 2021 VI SUPER 2'", Page ”4 01 10

fist amended answer filed on December 8 2020 On February 1 l 2021 the Court entered an ordei

(hereinafter February 11 2021 Order ) whereby the Court granted nunc pro tune Plaintiff’s

motion for a 90 day extension period or until Septembex 30 2020 to complete service of pioces‘ses

as to Defendant Garcia and Defendant Baptiste and ordered that inter alia (1) Plaintiff shall within

five (5) days from the date of entry of the February 21 2021 Older file proof of service for

Defendant Garcia with the Court or show good cause as to why the Court should extend the time

f0] service for Defendant Garcia again (ii) Plaintiff shall within five (5) days from the date of

entry of the February 21 2021 Order Plaintiff shall file proof of service f01 Defendant 0 Hughes

with the Court or show good cause as to why the Court should extend the time for service for

Defendant 0 Hughes 3 and (iii) Plaintiff is notified that failure to comply with this order will result

in the dismiseal of this case without prejudice as to Defendant Garcia and Defendant 0 Hughes

STANDARD OF PROCEDURE

Rule 4 of the Virgin Islands Rules of Civil Procedure (hereinafter Rule 4 ) provides that

[ulnless senice is waived proof of setvice must be made to the court V1 R CW P 4(m) see

also Title 5 V I C § 1 14(21) 1 The serVice of process unless waived by a general appearance

’ In the February [I 2021 order the Court explained To date the record does not reflect that Plaintiff tiled a plum 01 service of process 3510 Detendant 0 Hughes The return of semi“ and the corresponding affidavit by [ht process server Felipe Torres Jr both only named Johnny Hughes as the person served on November 5 2019 As such the Court will order Plaintiff to tile prom of service for Defendant 0 Hughes with the Court (Feb 11 2021 Order p 5) ‘ Title 5 V IC § 114 provides § 114 Proof 0fsenice of process (a) Proof of the service 01 the summons and complaint or of the deposit thereot in the post 011ite shall be as follows (I) It the service or deposit in the post office is by the marshal or his deputy the certificate 01 such officer (2) It by any other person his affidaV it thereof (3) In ease of publieation the, affidavit 01 the publisher or his representatiw togeter with a copy 01 the publication or (4) The written admission of the defendant Ghuanoo 1 John Baptiste er a] 8X 19 CV 555 Memorandum Opinion and Order 2021 V1 SUPER 22‘"? Page 4 01 10

is a prerequisite to the Superior Court obtaining personal jutisdiction oven a

defendant McKerzuet Hess 011V] Corp 70VI 210 215(Super Ct March6 2019) (quoting

Ross» Hodge 58 VI 292 311 n 22 (VI 2013) (quoting Joseph; Dali) NensPub Co Inc 57

V I 566 580 n 4 (2012)» see V I R CIV P 4(1)(i) 4 Rule 4 mandates that [Hf a defendant is

not served within 120 days after the complaint is filed the court on motion or on its own after

notice to the plaintiff must dismiss the action without prejudice against that defendant or order

that service be made within a specified time VI R CIV P 4(n) see also Ross 58 VI at 310

( In general actual notice of a law suit is not a substitute for proper service and absent proper

service a case must be dismissed for lack of personal jurisdiction over the defendant ) (citation

omitted) However a court must consider whether good cause exists to extend the 120 day period

for service befote the court may dismiss a complaint against a party for lack of servite Ross 58

V1 at 310 see V1 R ClV P 4(n) ( If a defendant is not served within 120 days after the

complaint is filed the court on motion or on its own after notice to the plaintiff must dismiss the action without prejudice against that defendant or 01 dCI that setvice be made within a specified

time But if the plaintiff shows good cause for the failure the court must extend the time for service

for an appropriate period ) Even if the court finds that no good cause exists to warrant

an extension the court must at least con§ider whether any other factors warrant a discretionary

extension Ross 58 VI at3lO 11

‘VI R CIV P 4pr0vide§

(”Territorial Limits of EffectiVe $erwice Serving a summons and complaint or filing a waiver of btrViu, satisfics the obligation 01 smite of process sufficient to Lstablish personal jurisdiction over a ddendant (1) who is subject to personal jurisdiction in the Superior Court in the Virgin Islands or (2) when authorized by statutt. VI R C“ P 4(|)(i) 011mm 00 1 John Bapnsle eta! SX 19 CV 555 Memorandum Opinion and Order 2021 v1 SUPER 21'? Page 5 01 10

DISCUSSION

Here Plaintiff filed his complaint on October 17 2019 Thus under Rule 4 Defendants

should have been served on or before February 14 2020 s or on or before September 30 2020 for

the defendants where an extension was requested and granted by the Court proofs of services

should have been filed for all Defendants However despite the Court 5 February 1 1 2021 Order

to date Plaintiff has not filed proof of service for Defendant Garcia and Defendant 0 Hughes 01

showed good cause as to why the Count should extend the time for service for them As the Court

ordered in its February 1 l 2021 Order Plaintiff is notified that failure to comply with this order

will result in the dismissal of this case without prej udice as to Defendant Garcia and Defendant 0

Hughes Nevertheless before the Court dismisses without prejudice the case against Defendant

Gatcia and Defendant 0 Hughes the Court will considei whether good cause or any othet factors

warrant a discretionary extension

I Good Cause or Other Causes Warranting Extension

In the context of service of process courts have considered three factors in determining

the existence of good cause (1) reasonableness of plaintiffs efforts to serve (2) piejudice to the

defendant by lack of timely service and (3) whether plaintiff moved for an enlargement of time to serve prior to the expiration of the period prescribed by the rule ML Kenzze 70 V I at 216 (quoting

Charla l Woodie) 47 V I 202 210 (Super Ct 2005) (quotation marks brackets and citations

omitted» In all instances however it is the plaintiff‘s burden to show good cause Id (quoting

Beachszde Assoc 5' LLC 1 Pullman 53 V I 700 713 (V I 2010)) As noted above [e]ven if the

court finds that no good cause exists to warrant an extension the court must at least consider

‘ The Court inadVertently stated in its February I l 2021 Order that Defendants should haw. been served on or about April 16 2020 G/mmt 001 10/112 Baptiste (If a! SX 19 CV 555 Memorandum Opinion and Order 2021 v1 SUPER )3? Page 6 of IO

whether any other factors warrant a discretionary extension Ross 58 VI at 310 l I see aim

Beaclzszde Assam LLC 53 V I at 717 18 ( In othei words the trial court has discretion as to

whether it will ultimately grant or deny a peimis‘s‘ive extension under PRC? 4(m) but the court lacks discretion to refuse to at least consider the appropiiateness of such an extension ) [C]ourts

must consider a discretionary extension when the etatute of limitations bars the filing of a new complaint McKenzie 70Vl at218 (citing Beaclzsza'eAssocs LLC 53 VI at7l8 Nevertheless

the Court can still deny a discretionary extension of time even if the statute of limitations would bar a plaintiff from re filing its claims Id (citing Petillc ell: 46 F 3d at 1306 3016) 1 K(nmark

123 F 3d 756 759 (3d Cir 1997)»

A Defendant Garcia

Regaiding the first factor of the good cause analysis the reasonableness of Plaintiff‘s

efforts to serve Plaintiff did not file anything in response to the Court 5 February 11 2021 Order

so the Court (106% not know what efforts were undertaken to serve Defendant Garcia since Plaintiff

filed his Motion for Extension on June 29 2020 6 Given that Plaintiff ignored the Court s Februaty

l I 2021 Order and failed to file proof of service for Defendant Garcia or show good cause as to why the Court should extend the time for service this factor does not support a finding of good cause Regarding the second factor the prejudice to Defendant Garcia by lack of timely service

the Court has no information to consider here because Defendant Garcia has not appeared or filed anything in this matter The Court is left to speculate how the delay would be prejudicial Thus this factor is neutral Regarding the third factor whether Plaintiff moved for an enlargement of

" In its February I l 2021 Order the Court granted Plaintiff 5 Motion for Extension nune pro tune and explained that the Court found Plaintiff .5 multiple attempts at personally serVing Detendant Galcia prior to the expiration of Rule 4 s 120 day period Piaintitt s prtxess server Felipe Torres Jr 5 family medical issue and the COVID l9 outbreak in 2020 establisheId] good cause for an extension (Feb I I 2021 Order) Ghumtoo 1 John Baptiste er a] 9X 19 CV 555 Memorandum Opinion and Order 2021 VI SUPER 21‘“) Page 7 of 10

time to serve prior to the expiration of the period prescribed by the rule this factox does not

support a finding of good cause While Plaintiff did previously file the Motion for Extension said motion was not timely filed before the expiration of the period prescribed by Rule 4 7 and Plaintiff

failed to serve Defendant Garcia by the deadline he himself set f0tth in the Motion for Extension

Theteafter not only did Plaintiff not file another motion for an extension to serve Plaintiff also did not file anything in response to the Court 8 February 11 2021 Ordet Having considered all the factors and finding two factors weighing against finding of good cause and one factor neutral

the Court cannot find good cause for Plaintiff’s failure to serve Defendant Garcia See McKende

70 V I at 218 (quoting Benz hszde AWOCJ LLC 53 V 1 at 713 (quoting MC] Telecomms Corp 1 Teleumcepts Inc 71 F 3d 1086 1097 (3d Cir 1995») ( [T]he absence of prejudice alone can

never constitute good cause to excuse late service Instead ptejudice may tip the good cause

scale [but] the primary focus is on the plaintiff‘s reasons for not complying with the time limit in

the first place ) However the Court 3 analysis does not end here the Coutt must determine if

there are othet factors that may warrant an extension

Hete the statute of limitations expired in this matter Although Plaintiff did not include the

date of the alleged motox vehicle incident in her complaint Defendant PHLA indicated in its croqsclaim that the alleged motel vehicle incident occurred on or about June 26 2018 Personal

injury claims are subject to a two yeat statute of limitations in the Virgin Islands See Title 5VIC

§ 31(5)(A) 8 Over sixteen months have passed since Plaintiff filed his complaint and he has yet to

Plaintiff 5 Motion tor Extension was tiled on June 29 2020 Plaintiff filed his complaint on October 17 2019 Thus under Rule 4 the deadline to serve Defendants expired on or about February 14 2020 8 Title 5 V I C § 11 provides § 31 Time for commencement of various actions Civil actions shall only be commenced within the periods prescribed below utter the cause of action shall have accrued except when in special eases a different limitation is prestribed by statute 0/2115”on John Baptiste eta! 9X 19 CV 555 Memorandum Opinion and Order 2021 VI SUPER 1““) Page 8 of IO

serve Defendant Garcia As noted above Plaintiff did not timely file his previous Motion for

Extension before the expiration of the period prescribed by Rule 4 Plaintiff failed to serve

Defendant Garcia by the deadline he himself set forth in the Motion for Extension and Plaintiff

ignored the Court 3 February 1 l 2021 Order Taking everything into consideration the Court finds

that there lacks a Clear inteiest 0n Plaintiff 5 part to pursue his case against Defendant Garcia As

such the Court finds that there are no other causes that warrant a discretionary extension here as

to Defendant Garcia and the Court will dismiss without prejudice the case against Defendant

Garcia See V I R CIV P 4(a) ( If a defendant is not served within 120 days after the complaint

is filed the court on motion or on its own after notice to the plaintiff must dismiss the action

without prejudice against that defendant or ordet that service be made within a specified time )

B Defendant 0 Hughes

Regarding the first factOI of the good cause analysis the reasonableness of plaintiff‘s

efforts to serve Plaintiff did not file anything in response to the Court 5 February 1 1 2021 Oldel

so the Court does not know what efforts were undertaken to serve Defendant 0 Hughes since the

Court s February 11 2021 Order However the Court must note that it appears that Plaintiff was

under the impression that Defendant 0 Hughes was served on November 5 2019 with Defendant

J Hughes and thus Plaintiff was not aware of the lack of service as to Defendant 0 Hughes until

the Court 3 February 11 2021 Order Given that Plaintiff previously attempted to timely serve

Defendant 0 Hughes and was in fact under the impression that Defendant 0 Hughes was timely

served this factor supports a finding of good cause Regarding the second factor the prejudice

(5) Two years (A)An action torlibel slander assault battery seduction false imprisonment or for any injury to the person or rights 01 another not arising on contract and not herein especially enumerated 0r [0 set aside a sale 01 real property for non payment of real property taxes pursuant to Title ”4% chapter 89 subchapter III of this Code 011mm 00 I John Baptiste er «1 9X 19 CV 555 Memorandum Opinion and Order 2021 v1 SUPER 21+? Pagt 9 0t 10

t0 the defendant by lack of timely service the Court has no information to consider here because

Defendant 0 Hughes has not appeared or filed anything in this matter The Court is left to

speculate how the delay would be prejudicial Thus this factor is neutral Regarding the third

factor whether plaintiff moved for an enlargement of time to serve prior to the expiration of the

petiod prescribed by the rule this factor also does not support a finding of good cause Even if

Plaintiff was previously under imptession that Defendant 0 Hughes was timely served the

Court s February I l 2021 Order should have alerted Plaintiff of his lack of service as to Defendant

0 Hughes and at that time pu1suant to the February 11 2021 Order Plaintiff should have filed

the corrected proof of service or showed good cause as to why the Cou1t should extend the time

for service Instead Plaintiff did nothing and ignored the Court 3 February 1 1 2021 Order Having

consideted all the factors and finding one factor weighing in favor of finding of good cause one

factor neutral and one factor weighing against finding of good cause the Court finds good cause

for the failure to serve Defendant 0 Hughes See Mc Ken 1e 70 V I at 218 (quoting Beachwde

A990“ LLC 53 VI at 713 (quoting MCI Telecomms Corp 71 F 3d at 1097))( prejudice may

tip the good cause scale [but] the primary focus is on the plaintiffs reasons for not complying with

the time limit in the first place ) As such the Court will extend the time for setvice as to

Defendant 0 Hughes See VI R CIV P 4(n)( If a defendant is not served within 120 days after

the complaint is filed the court on motion or on its own after notice to the plaintiff must dismiss the action without prejudice against that defendant or order that service be made within a

specified time But if the plaintiff shows good cause for the failure the court must extend the time

for service for an appropriate period ) Glurtm 00 l John Baptiste er a! 9X 19 CV 555 Memorandum Opinion and Order 2021 VI SUPER 2}? Page 10 of IO

CONCLUSION

Based on the foregoing the Court will dismiss without prejudice the case against

Defendant Gaicia and order Plaintiff file proof of service fox Defendant 0 Hughes within thirty

(30) days Accordingly it is hereby

ORDERED that the case against Defendant Garcia shall be DISMISSED WITHOUT

PREJUDICE It is further

ORDERED that within thirty (30) days from the date of entry of this Order Plaintiff

shall file proof of service for Defendant 0 Hughes with the Court And it is further

ORDERED that Plaintiff is notified that failure to comply with this order will result in the

dismissal of this case without prejudice as to Defendant 0 Hughes

DONE and so ORDERED this 9%“day of February 2021

HAROLD W L WILLOCKS Presiding Judge of the Superior Court