Smith v. All persons claiming a present or future Interest

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
IDA SMITH,
Plaintiff,
v.
ALL PERSONS CLAIMING A PRESENT OR
FUTURE INTEREST IN ESTATE 13,
FRIIS, LINDA V. SMITH-FRANCIS,
WILLIAM E. SMITH, ELOISE V. SMITH-
HENDRICKS, BAB FRIIS NO. 1, PAUL
HOFFMAN, JANE HOFFMAN-WALKER,
ELEANOR ADAMS HOFFMAN, MAXWELL
ADAMS HOFFMAN, GLORIA FRANCOIS
MCGOWAN, DAVID A. BORNN AS TRUSTEE
TO THE GAF TRUST ESTATE 14 JOHN’S
FOLLY EXCLUDING ALL HEIRS AT LAW,
ESTATE 15 CONCORDIA A, CORAL BAY
QUARTER, ST JOHN UNITED STATES
VIRGIN ISLANDS, NATIONAL PARK
SERVICE, LAND RESOURCES DIVISION,
DEPARTMENT OF INTERIOR, THE UNITED
STATES OF AMERICA, STANLEY
SELENGUT, WILLIAM B. POPPELTON,
LORRAINE A. POPPELTON, KEVIN M.
WALSH, MARIA K. STURATIS, SCOTT E.
WILMOSKI, CHARLES M. PERDUE,
MONICA PERDUE, JOZSEF NEMETH,
NANCY NEMETH, FRED S. PATTERSON,
MARGARET D. PATTERSON, JOHN R.
PERGOLIZZI, TREASURE VIEW LLC,
GEORGE PILLORGE, DEBORAH PILLORGE,
SCOTT L. HARTSHORN, CLAUDETTE C.
HARTSHORN, HEINZ G. FISHER, LINDA
G. BURDET TRUSTEES OF THE HEINZ G.
FISHER TRUST, DONALD DURANTE,
SAFIA B. DURANTE, CRAIG E.
MITCHELL, ALAN MARTIN KAUFMAN,
RACHELLE KAUFMAN, JEFFREY J.
McCRAVE, ANN McCRAVE, DOROTHY K.
JANOSKO, WILLIAM R. KINCER, SUSAN
B. KINCER, SUSAN GREER
LITTLEFIELD, WAYNE CHESTERFIELD,
MONIQUE FRANCOIS, PEDRITO
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Memorandum Opinion
Page 2
FRANCOIS, SALT POND VISTA LLC,
V.I. JOSEPH PALMINTERI, CARRIE
GLENN, MARC KAVE, EMILY J.
BRATTON, RICK HATHAWAY, RENE A.
SERVANT aka RENE H. SERVANT, MARIE
THERESE L. SERVANT, LORI JANE
SNACK, BRIAN K. WALDEN,
MINISTER ISHMAEL R. MUHAMMED,
MICHAEL CARPER, REUBEN WHEATLEY,
et al.,
Defendants.
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APPEARANCES:
Ida Smith
New York, NY
Pro se plaintiff,
Ronald W. Sharpe, USA
Jason Cohen, AUSA
St. Thomas, VI
For the United States National Park Service,
Maria Tankenson Hodge, Esq.
Hodge & Francois
St. Thomas, U.S.V.I.
For Paul Hoffman; Jane Hoffman Walker; and David A. Bornn,
Trustee of the GAF Trust,
Rafael F. Muilenburg, Esq.
Morrisette & Muilenburg
St. John, U.S.V.I.
For William E. Smith; Eloise V. Smith; Deborah Pillorge;
Claudette C. Hartshorn; Scott L. Hartshorn; Linda V. Smith-
Francis; and George Pillorge,
Gloria McGowan
Pro se,
Wayne Chesterfield
Pro se,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Memorandum Opinion
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Monique Francois
Pro se,
Pedrito Francois
Pro se,
Joseph Palminteri
Pro se,
W. Mark Hillsman, Esq.
Law Offices of Norman P. Jones, P.C.
St. Thomas, U.S.V.I.
For Carrie Glenn; Lori Jane Snack; William B. Poppelton;
Lorraine A. Poppelton; Maria K. Sturaitis; Charles M.
Purdue; Monica Purdue; Salt Pond Vista, LLC; Heinz G.
Fisher; Linda G. Burdet, Trustee of the Heinz G. Fisher;
Safia B. Durante; Donald Durante,
Marc Kave
Pro se,
Emily J. Bratton
Pro se,
Rick Hathaway
Pro se,
Rene A. Servant
Pro se,
Marie Therese Servant
Pro se,
Brian K. Walden
Pro se,
John H. Benham, III, Esq.
Watts, Benham & Sprehn, P.C.
St. Thomas, U.S.V.I.
For Stanley Selengut,
Mark D. Hodge, Esq.
Hodge & Francois
St. Thomas, U.S.V.I.
For Kevin M. Walsh and Treasure View LLC,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Memorandum Opinion
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Scott E. Wilmoski
Pro se,
Jozef Nemeth
Pro se,
Nancy Nemeth
Pro se defendant.
Fred S. Patterson
Pro se,
Margaret D. Patterson
Pro se defendant.
John R. Perqulizzi
Pro se,
Terryhill Enterprises, II
Pro se,
Missouri LLC
Pro se,
Craig E. Mitchell
Pro se,
Michael E. Fitzsimmons, Esq.
Stryker, Duensing, Casner & Dollison
St. Thomas, U.S.V.I.
For Alan Martin Kaufman,
Ann McCrave
Pro se,
Jeffrey J. McCrave
Pro se,
William R. Kincer
Pro se,
Susan B. Kincer
Pro se,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Memorandum Opinion
Page 5
Susan Greer Littlefield
Pro se,
Kurt Shore
Pro se,
Suzanne L. Shore
Pro se,
Dorothy Janosko (also known as “Dorothy K. Janoko”)
Pro se.
MEMORANDUM OPINION
GÓMEZ, J.
Before the Court is (1) the second amended complaint filed
by Ida Smith; and (2) the cross-claim of Wayne Chesterfield.
I. FACTUAL AND PROCEDURAL HISTORY
In March, 2011, Ida Smith (“Smith”) initiated this action
to determine boundaries and to quiet title to various parcels of
property in St. John, United States Virgin Islands.
Subsequently, Smith filed an amended complaint (the “First
Amended Complaint”). ECF No. 4.
Neither the original complaint nor the First Amended
Complaint named an individual defendant. Rather, both actions
were brought against “[a]ll persons claiming a present or future
interest, in Estate 13, Friis, Bab Friis No.1, Estate 14, John’s
Folly, Estate 15, Concordia A, Coral Bay Quarter, St. John,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
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United States Virgin Islands EXCEPT The United States of
America, National Park Service.” ECF Nos. 1, 4.
Smith moved for leave to file a second amended complaint on
July 18, 2011. Smith attached a proposed second amended
complaint (the “July 18 Proposed Complaint”) to her motion. The
proposed complaint named more than thirty additional defendants,
including Wayne Chesterfield (“Chesterfield”). Smith did not
allege the citizenship of those defendants. On August 9, 2011,
before the Court could rule on Smith’s motion, the Clerk of
Court issued more than thirty summonses for the defendants Smith
sought to add.
On September 15, 2011, the Court received a form in which
Chesterfield waived service of summons. The waiver form was
dated August 21, 2011. On October 5, 2011, Chesterfield filed a
document purporting to be an answer to the July 18 Proposed
Complaint. That document read:
COMES NOW, Wayne Chesterfield appearing Pro Se (at
present) and as a cross-claimant against all persons
claiming a present or future interest in the
remainder of Estate 15 A Concordia, St. John United
States Virgin Islands. In response to Plaintiff, Ida
Smith, Pro Se, complaint and in compliance with
Virgin Islands Code Title 28 § 373 the nature of my
claim is the remainder of Estate 15 A Concordia, 50
acres more or less as deeded to me by my aunt
Claudina Viola Joshua. The location of Estate
Concordia, St. John United States Virgin Islands is
given in the Geographic Dictionary of the Virgin
Islands of the United States by James William McGuire
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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Cartographic Engineer, United States Coast and
Geodetic Survey, Member of United States Geographic
Board and on map T3783 the original government survey
done 1919 as 80 by 330 yards in size, on a sandy
isthmus joining Ramhead Peninsula to mainland of St.
John; only salt bearing pond on this end of island.
Hence, Concordia Bay, Estate, and Hill, are all
locally denominated Saltpond. Hence, also, this may
be designated, Concordia Saltpond, to which I claim
an undivided interest of 50 acres more or less. I
have attached a copy of a National Park Service Map
which delineates Estate Concordia.
ECF No. 158.
On February 29, 2012, the Court dismissed the action for
lack of subject-matter jurisdiction. Smith then moved for
reconsideration and filed a notice of appeal. On February 8,
2013, the Court granted Smith’s motion for reconsideration and
reopened the case. The Court then designated the case as a
suspense matter pending the Third Circuit’s resolution of the
appeal. On July 1, 2013, the Third Circuit dismissed Smith’s
appeal for lack of jurisdiction.
Subsequently, on October 17, 2013, the Magistrate Judge
granted Smith leave to file a Second Amended Complaint. On
November 1, 2013, Smith filed her amended complaint (the “Second
Amended Complaint”). The Second Amended Complaint is the
operative complaint in this action. Chesterfield did not answer
the second amended complaint.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
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In the Second Amended Complaint, Smith alleges that she
has:
a present interest in the remnant lands of Estate 14
John’s Folly, Coral bay Quarter, St. John,
U.S.V.I[.], by which she is entitled, due to the
entire seventy five acres of Estate 14 John’s Folly
having been parceled out to all of the legal heirs
except [her].
Id. at ¶ 1.
For several of the defendants, Smith alleges that “[t]here
exists a dispute or controversy as to the location of the
boundary lines” between the defendants’ land and the land in
which she claims to have an interest. See id. at ¶ 6; see also
id. at ¶ 11 (“There exists a dispute or controversy as to the
location of [the defendant’s and Smith’s estates].”); id. at ¶¶
12-13 (“There exists a dispute or controversy as to the dividing
lines between [the defendant’s and Smith’s estate].”). Smith
does not elaborate on the nature of these disputes.
For several other defendants, Smith asserts that the
defendants’ property “shares a common boundary line” with the
property in which she claims an interest. See id. at ¶ 7-8.
Smith does not allege that there are any disputes over the
location of these boundary lines. With respect to the remaining
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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defendants, Smith only alleges that those defendants own
property on St. John.1 See id. at ¶¶ 9-10, 14-36.
On September 30, 2015, the Court dismissed Smith’s claims
against Paul Hoffman; Jane Hoffman-Walker; and David A. Bornn,
Trustee of the GAF Trust on res judicata grounds. On September
29, 2016, the Court dismissed Smith’s claims against Treasure
View, LLC; Kevin Walsh; Salt Pond Vista, LLC; Carrie Glenn; Lori
Jane Snack; William Poppelton; Lorraine A. Poppelton; Charles M.
Perdue and Monica Perdue; Heinz G. Fischer and Linda G. Burdet,
Trustees of the Heinz G. Fischer Family Trust; Maria K.
Struraitis; Donald Durante; Safia B. Durant; and Stanley
Selengut for failure to effect proper service. On August 1,
2016, the Court dismissed Smith’s claims against the United
States for lack of subject matter jurisdiction.
On November 15, 2016, the Court ordered Smith to show cause
why her claims against the remaining defendants should not be
dismissed for lack of standing.
On November 21, 2016, Smith filed a brief responding to the
Court’s November 15, 2016, order. In her brief, Smith argues
that she is not required to establish standing to bring her
1 Smith also alleges “[t]here exists . . . dispute[s] or controvers[ies]” over
the boundary lines of property owned by several of the defendants. See ECF
No. 268, at ¶ 7, 14. Smith does allege that these disputes affect her claimed
property interest.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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claims because this Court is an Article IV court. Smith also
asserted:
The fraud is the United States has accepted title to
parcels 07-123 and 07-124, albeit, the grantor was
not in possession of the lands deeded to the United
States. Also, the defendant, United States, Virgin
Islands National Park extended it[s] boundary lines
to include Nanny Point. . . . The parcels 07-123 and
07-124, claimed by the defendant, United States as
Estate 15 Concordia A, belong to Plaintiff as an
inheritable heir at law as those parcels are lands
lying within the boundary lines of Estate 14 John’s
Folly . . . .
ECF No. 560 at 5-6. Smith did not clarify what “controversy or
dispute” existed between Estate 14 John’s Folly and the
properties of any other defendants.
On January 12, 2017, the Court held a hearing in this
matter. At the hearing, the Court sought to determine “the
specific thing [Smith] would like the Court to do that would
make [her] whole.” Hearing Tr., ECF No. 586 at 33:25-34:1.
Specifically, the Court asked Smith to describe “the injury or
thing that has occurred that entitles [her] to relief.” Id. at
32:3-5. Smith responded:
My claim is to determine the external boundary
lines to Estate 14 Johns Folly with reference to the
original Government survey register number 3783. And
I’d like to quiet title to the remnant lands within
Estate 14 Johns Folly that haven’t already been
claimed by the heirs at law.
The damage that was done to me by the United
States as a defendant, the National Park Service, is
in regards to Tract number 07123, 07124 wherein it’s
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
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accepted deeds outside of the National Park Service
boundary line and [E]state [C]oncordia, which
belongs to the heirs or myself that filed this action
to Estate 14.
Id. at 32:12-22.
Smith claimed that after the United States accepted the
deeds in question, it moved the boundary lines of the Virgin
Islands National Park “[t]o include Parcels 07123 and 07124 as
being Estate 15 Concordia.” Id. at 33:20-21. To remedy this
injury, Smith asked the court to make a determination of the
boundary lines to 14 Johns Folly.
In addition, Smith explained that she wanted to quiet title
“[t]o remnant lands within Estate 14 Johns Folly that have not
already been given to the heirs under the treaty.” Id. at 33:24-
25-34:1. Smith clarified that she wished to quiet title because
“[t]he National Park Service is laying claim to Parcels 07123
and 07124.” Id. at 34:12-13.
On March 17, 2017, the Court ordered Chesterfield to show
cause why his cross-claims should not be dismissed. On March 23,
2017, Chesterfield filed a brief responding to the Court’s March
17, 2017, order. In his brief, Chesterfield asserts that he
“waived . . . service of a summons and complaint in this action”
and “answered the complaint according to the law.” ECF No. 598
at 1. Chesterfield also asserts that his “counter claim is
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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against anyone claiming to own what [he] inherited from [his]
aunt Claudia Viola Joshua.” Id. at 2. Finally, Chesterfield
appears to disclaim that he brought a cross-claim, asserting
that, in an earlier order, the Court “rightfully refer[ed] to
[Chesterfield] as a defendant, not a cross-claimant.” Id. at 2.
II. DISCUSSION
[A] litigant [must] have standing to invoke the
power of a federal court. The standing question is
whether the plaintiff has alleged such a personal
stake in the outcome of the controversy as to warrant
his invocation of federal-court jurisdiction and to
justify exercise of the court's remedial powers on
his behalf.
In re Schering Plough Corp. Intron/Temodar Consumer Class
Action, 678 F.3d 235, 244 (3d Cir. 2012) (internal quotation
marks, alterations, and citations omitted). “[T]he
jurisdictional issue of standing can be raised at any time, by
either a party or by the court.” Blunt v. Lower Merion Sch.
Dist., 767 F.3d 247, 280 (3d Cir. 2014) (internal quotation
marks omitted).
To demonstrate standing, a plaintiff must establish three
elements:
First, the plaintiff must have suffered an injury in
fact—an invasion of a legally protected interest
which is (a) concrete and particularized; and (b)
actual or imminent, not conjectural or hypothetical.
Second, there must be a causal connection between
the injury and the conduct complained of—the injury
has to be fairly traceable to the challenged action
of the defendant, and not the result of the
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independent action of some third party not before
the court. Third, it must be likely, as opposed to
merely speculative, that the injury will be
redressed by a favorable decision.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct.
2130, 2136, 119 L. Ed. 2d 351 (1992) (internal quotations,
alterations, citations, and footnotes omitted).
Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”)
governs dismissals for lack of subject-matter jurisdiction. A
Rule 12(b)(1) jurisdictional attack may be either a facial or a
factual challenge to the court’s subject-matter jurisdiction.
Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
In considering a facial challenge to subject-matter jurisdiction
under Rule 12(b)(1), all material allegations in the complaint
are taken as true. Id. at 891-92; see also Taliaferro v. Darby
Township. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006)
(summarizing the standard for facial attacks under Rule 12(b)(1)
as “whether the allegations on the face of the complaint, taken
as true, allege facts sufficient to invoke the jurisdiction of
the district court”). The matter must be dismissed if the
allegations on the face of the complaint, taken as true, fail to
“allege facts sufficient to invoke the jurisdiction of the
district court.” Licata v. USPS, 33 F.3d 259, 206 (3d Cir.
1994).
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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A factual challenge arises when there is a dispute as to a
material fact. Mortensen v. First Fed. Sav. & Loan Ass'n, 549
F.2d 884, 891 (3d Cir. 1977). A factual challenge is quite
different from a facial challenge, because
the trial court may proceed as it never could
under 12(b)(6) or Fed.R.Civ.P. 56. Because at
issue in a factual 12(b)(1) motion is the trial
court's jurisdiction[,] its very power to hear
the case[,] there is substantial authority that
the trial court is free to weigh the evidence
and satisfy itself as to the existence of its
power to hear the case. In short, no presumptive
truthfulness attaches to plaintiff's
allegations, and the existence of disputed
material facts will not preclude the trial court
from evaluating for itself the merits of
jurisdictional claims. Moreover, the plaintiff
will have the burden of proof that jurisdiction
does in fact exist.
Id.
III. ANALYSIS
A. Ida Smith’s Standing to Bring Her Claims
The only injuries Smith alleges are “[t]hat there exists .
. . dispute[s] or controvers[ies]” with respect to the location
of the borders between Estate 14 and the property owned by other
defendants. ECF No. 268, at ¶¶ 6, 11-13. These allegations
merely parrot the language of 28 V.I.C. § 372, which provides
that “where any dispute or controversy exists . . . between two
or more owners of adjacent or contiguous lands in the Virgin
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Islands, concerning the boundary lines thereof, or the location
of the lines dividing such lands,” a party to the dispute may
bring an action to determine the boundary lines. 28 V.I.C. § 372
(emphasis added).
Significantly, “conclusory or ‘bare-bones’ allegations . .
. [cannot] survive a motion to dismiss: ‘threadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice.’” Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal,556 U.S. 662,
678 (2009)). As such, Smith’s conclusory assertion of a “dispute
or controversy” is not entitled to an assumption of truth.
Without this allegation, Smith’s complaint contains no factual
allegations showing that any party has injured her. That is,
there are no allegations showing that any party has laid claim
to any real property that she claims. As such, Smith has failed
to adequately plead that she suffered an injury-in-fact
sufficient for the Court to exercise jurisdiction over her
claims.
Nevertheless, where a complaint is facially deficient, “it
is within the trial court’s power ‘to require the plaintiff to
supply, by amendment to the complaint or by affidavits, further
particularized allegations of fact deemed supportive of
plaintiff’s standing.’” Doherty v. Rutgers Sch. of Law-Newark,
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651 F.2d 893, 898 n.6 (3d Cir. 1981) (quoting Warth v. Seldin,
422 U.S. 490, 501-02 (1975)). After being given this
opportunity, if “‘the plaintiff’s standing does not adequately
appear from the materials of record, the complaint must be
dismissed.’” Id. (quoting Warth, 422 U.S. at 501-02); see also
FOCUS v. Allegheny Cnty. Court of Common Pleas, 75 F.3d 834, 839
(3d Cir. 1996) (“The district court may choose to address the
standing issue in a pre-trial proceeding or at trial.”).
The Court provided Smith with multiple opportunities to
demonstrate standing.2 In response to this Court’s inquiries,
Smith has arguably demonstrated standing to bring a claim
against the United States. However, Smith’s claims against the
United States have already been dismissed. Smith offers no
evidence or argument to support a finding that she has standing
to bring claims against any of the other defendants remaining in
this action. Accordingly, the Court holds that Smith lacks
standing to maintain this action. See Doherty, 651 F.2d at 898
n.6. (“Since [the plaintiff] elicited no facts at the
evidentiary hearing nor submitted any materials in support of
2 Smith argues that she is not required to establish standing to bring her
claims because this Court is not an Article III court. That view is without
legal support. See Russell v. DeJongh, 491 F.3d 130, 133 n.3 (3d Cir. 2007)
(“The District Court[ of the Virgin Island’s] exercise of ‘the jurisdiction
of a District Court of the United States’ . . . is subject to the limitations
of Article III of the Constitution . . . [which] limits the jurisdiction of
the federal courts to deciding ‘cases’ or ‘controversies.’” (quoting 48
U.S.C. § 1612(a))).
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this allegation, the district court was justified in rejecting
th[e] wholly unsupported and conclusory allegation in [the
plaintiff]’s amended complaint.”).
B. Chesterfield’s Cross-Claim
Federal Rule of Civil Procedure 13(g) (“Rule 13(g)”)
governs cross-claims. Rule 13(g), in relevant part, provides
that
[a] pleading may state as a cross claim any claim by
one party against a coparty if the claim arises out
of the transaction or occurrence that is the subject
matter of the original action or of a counterclaim,
or if the claim relates to any property that is the
subject matter of the original action.
Fed. R. Civ. P. 13(g).
“A cross-claim may be asserted only between co-parties.”
Wake v. United States, 89 F.3d 53, 62 (6th Cir. 1996). Moreover,
“[b]y its terms, Rule 13(g) requires the cross-claimant to be a
party to the lawsuit at the time the cross-claim is asserted.”
Ambraco, Inv. v. Bossclip B.V., 570 F.3d 233, 242 (5th Cir.
2009). Thus, a party cannot bring a cross-claim against a
coparty that has already been dismissed from the original
action. See id.; Wake, 89 F.3d at 62-63.
Smith’s original complaint and First Amended Complaint
named no parties. Chesterfield filed his cross-claim in his
answer to Smith’s July 18 Proposed Complaint, which named
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several defendants including Chesterfield. Smith’s July 18
Proposed Complaint was filed without leave of Court and was thus
a “legal nullity.” See Smith v. All Persons Claiming a Present
or Future Interest in Estate 13, No. 2011-41, 2016 WL 5720541,
at *2 (D.V.I. Sept. 29, 2016). As such, there was no party
against whom Chesterfield could bring his cross-claim. Further,
when Chesterfield filed his cross-claim there was no “original
action” to which his claim could be related. See Fed. R. Civ. P.
13(g) (explaining that a cross-claim must “relate[] to . . .
property that is the subject matter of the original action”).
Accordingly, the Court will dismiss Chesterfield’s cross-claim.
An appropriate judgment follows.
S\
CURTIS V. GÓMEZ
District Judge
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