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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Case: 3:11-cv-00041-RAM-GAT Document #: 330 Filed: 09/16/14 Page 1 of 11

Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
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,
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,
Monique Francois
Pro se,
Pedrito Francois
Pro se,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 3
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,
Scott E. Wilmoski
Pro se,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 4
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,
Susan Greer Littlefield
Pro se,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 5
Kurt Shore
Pro se,
Suzanne L. Shore
Pro se,
Dorothy Janosko (also known as “Dorothy K. Janoko”)
Pro se.
ORDER
GÓMEZ, J.
Before the Court is the motion of Defendants Paul Hoffman,
David Bornn as Trustee of the GAF Trust, and Jane Hoffman
Walker’s (the “Hoffman Defendants”) to dismiss the Second
Amended Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6).
I. FACTUAL AND PROCEDURAL BACKGROUND
In March 2011, 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.)
Thereafter, on July 18, 2011, Smith filed a motion for
leave to file a second amended complaint. Smith attached to her
motion a proposed second amended complaint (the “July 18th
Proposed Complaint”). In the July 18th Proposed Complaint, Smith
named more than thirty defendants which she sought to add. Smith
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 6
did not allege the citizenship of any of the proposed
defendants.
Before the Court could rule on the motion for leave to
amend, summonses were issued and executed for the thirty-plus
defendants that Smith sought to add.
Thereafter, on November 4, 2011, the Magistrate Judge
issued a Report and Recommendation in which she recommended that
Smith’s motion for leave to amend her complaint be denied as
futile. Specifically, the Magistrate stated that the “plaintiff
does not allege the citizenship of any of the parties. As such,
it would be futile to grant plaintiff’s motion as the proposed
Second Amended Complaint does not allege sufficient facts to
support subject matter jurisdiction in this Court.” (ECF No.
184.) The Court adopted the Magistrate’s Report and
Recommendation.
On November 26, 2011, Smith filed another motion for leave
to file a second amended complaint. Smith attached to her motion
a proposed second amended complaint (the “November 26th Proposed
Complaint”). In the November 26th Proposed Complaint, Smith
again named more than thirty defendants which she sought to add.
On February 1, 2012, the Court again denied Smith’s motion to
file a second amended complaint.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 7
Subsequently, on October 17, 2013, the Magistrate Judge
granted Smith leave to file a Second Amended Complaint on or
before October 31, 2013. On November 1, 2013, Smith filed her
amended complaint (the “Second Amended Complaint”). (ECF No.
268.) Summonses were issued and executed.
The Hoffman Defendants now move to dismiss the Second
Amended Complaint pursuant to Federal Rule of Civil Procedure
12()b)(6).
II. ANALYSIS
1. The Hoffman Defendants’ Status as Defendants
The Hoffman Defendants were not included as defendants in
the First Amended Complaint. On November 1, 2013, Smith filed
the Second Amended Complaint. The Second Amended Complaint
includes the Hoffman Defendants. Accordingly, the Hoffman
Defendants may only file this motion if the Second Amended
Complaint replaced the First Amended Complaint as the operative
complaint.
Federal Rule of Civil Procedure 15 governs the amendment of
complaints. Rule 15(a) states in relevant part that “[a] party
may amend its pleading once as a matter of course . . . .”
Fed. R. Civ. P. 15(a)(1)(emphasis added). Smith amended her
complaint once as a matter of course on April 1, 2011 when she
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
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filed her first amended complaint. The First Amended Complaint
then became the operative complaint.
Rule 15(b) governs subsequent amendment of the complaint.
Rule 15(b) in relevant part states that “in all other cases, a
party may amend its pleading only with the opposing party's
written consent or the court's leave.”
Smith did not receive written consent from the opposing
party to file the Second Amended Complaint. Accordingly, Smith
could only file the Second Amended Complaint with the Court’s
leave. On October 17, 2013, the Magistrate Judge granted Smith
leave to file the Second Amended Complaint on or before October
31, 2013.
Federal Rule of Civil Procedure 6 states in relevant part
that “[u]nless a different time is set by . . . local rule . . .
the last day ends . . . 	for electronic filing, at midnight in
the court's time zone . . . .” Fed. R. Civ. P. 6(a)(4). The
Court’s local rules state that:
Filing a document electronically does not alter the
filing deadline for that document. Unless otherwise
ordered by the Court a filing must be completed before
11:59 p.m. U.S. Virgin Islands time in order to be
considered timely filed that day.
LRCi 5.4(c)(4). Furthermore:
When a document has been filed electronically, the
official record is the electronic document as stored
by the Court, and the filing party is bound by that
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
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document. Except in the case of documents first filed
in paper form and subsequently submitted
electronically, a document filed electronically is
deemed filed on the date and at the time stated on the
Notice of Electronic Filing from the Court.
LRCi 5.4(c)(3).
Therefore, the deadline for Smith to file an amended
complaint was 11:59 PM on October 31, 2013. The record indicates
that Smith filed the Second Amended Complaint at 12:11 AM on
November 1, 2013. Plaintiff missed the deadline by twelve
minutes. Accordingly, when Smith filed the Second Amended
Complaint, she filed it without the Court’s leave. Her attempted
amendment did not comply with Rule 15.
Nevertheless, “some courts have held . . . that an untimely
amended pleading served without judicial permission may be
considered as properly introduced when leave to amend would have
been granted had it been sought and when it does not appear that
any of the parties w[ould] be prejudiced by allowing the
change.” 6 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1484 (3d ed. 2014); see, e.g., U.S. ex
rel. Mathews v. HealthSouth Corp., 332 F.3d 293, 295-97 (5th
Cir. 2003)(holding that the exception did not apply because
applying it would have prejudiced a party); U.S., for Use &
Benefit of Dorfman, v. Standard Sur. & Cas. Co. of New York, 1
F.R.D. 239, 240 (S.D.N.Y. 1940)(applying the exception).
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
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The Court would likely have granted Smith leave to file her
Second Amended Complaint one day after the previous deadline if
she had requested it. Furthermore, the Court is unable to
identify any prejudice to the parties caused by Smith’s untimely
filing. Therefore, the Court will extend the time within which
Smith may file an amended complaint to November 1, 2013. The
Court’s extension is nunc pro tunc to October 31, 2013.
Accordingly, the Second Amended Complaint is timely. It is now
the operative complaint.1
2. Res Judicata
Rule 12(b)(6) governs motions to dismiss for failure to
state a claim upon which relief may be granted. “In considering
a Rule 12(b)(6) motion, the Court may dismiss a complaint if it
appears certain the plaintiff cannot prove any set of facts in
support of its claims which would entitle it to relief.” Bostic
v. AT & T, 166 F.Supp.2d 350, 354 (D.V.I. 2001) (quoting Mruz v.
Caring, Inc., 39 F.Supp.2d 495, 500 (D.N.J. 1999)). “While all
well-pled allegations are accepted as true and reasonable
inferences are drawn in the plaintiff's favor, the Court may
dismiss a complaint where, under any set of facts which could be
1 The Court has issued post-November 1, 2013 orders indicating that the First
Amended Complaint was the operative complaint. These orders remain valid
after the Court’s nunc pro tunc extension of time. Each of these orders
either rested on valid, alternative grounds or did not turn on the
differences between the First Amended Complaint and 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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shown to be consistent with a complaint, the plaintiff is not
entitled to relief.” Id. (citations omitted).
When a movant raises a res judicata affirmative defense
through a Rule 12(b)(6) motion, the movant bears the burden of
proving each element of the affirmative defense. Taylor v.
Sturgell, 553 U.S. 880, 907 (2008). Moreover, the Court may
“consider only the allegations in the complaint, exhibits
attached to the complaint, matters of public record, and
documents that form the basis of a claim.” M & M Stone Co. v.
Pennsylvania, 388 F. App'x 156, 162 (3d Cir. 2010).
The premises having been considered, it is hereby
ORDERED that the Hoffman Defendants’ motion to dismiss for
failure to state a claim is DENIED without prejudice.
S\
Curtis V. Gómez
District Judge
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