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 FRANCOIS,
SALT POND VISTA LLC, V.I. JOSEPH
PALMINTERI, CARRIE GLENN, MARC KAVE,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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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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REPORT AND RECOMMENDATION
On March 1, 2016, Defendants Paul Hoffman, David A. Bornn as Trustee of the GAF
Trust, the successor in interest to Gloria McGowan, and Jane Hoffman Walker (the “Friis1
Defendants”), moved the Court to enter sanctions pursuant to Federal Rule of Civil Procedure 11
against plaintiff Ida Smith, and to find her in contempt of court under Rule 70. [ECF 465]. Plaintiff
Smith filed an opposition [ECF 472], and the Friis Defendants replied. [ECF 474]. On February
13, 	2017, 	the 	District 	Court 	referred 	the 	motion 	to 	the 	undersigned 	for 	a 	Report 	and
Recommendation. For the reasons that follow, this Court recommends that the motion be granted
in part and denied in part.
I. 	FACTUAL AND PROCEDURAL BACKGROUND
The parties are well familiar with the facts of this case, so only such facts as are necessary
to resolve the motion will be discussed. Ida Smith filed this “Action to Determine Boundary Lines
and Quiet Title” on March 24, 2011.2 The matter centers around certain real property located in
Coral Bay Quarter on St. John, U.S. Virgin Islands. 	The Friis Defendants own real property at
Parcel No. 1 Estate Friis, abutting the land in which plaintiff clams an interest, Estate 14 John’s
1 	The word “Friis” is sometimes spelled as “Friise,” depending on the document containing the word. For
ease, the Court uses the spelling “Friis” herein.
2 	Plaintiff has attempted to amend the complaint several times, although the essential claims have remained
constant.
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Folly. The boundary between the Estate Friis and John’s Folly properties was in dispute for many
years, and was the subject of protracted litigation. 	See Mem. Op. [ECF 388] at 5-7.
On October 18, 2011, Smith filed a Notice of Lis Pendens “against real property that is the
subject of this action,” including real property owned by the Friis Defendants. [ECF 169]. At a
hearing before this Court on November 4, 2011, Smith stated that she would remove the lis
pendens. The Court then entered an Order, dated November 4, 2011, stating “plaintiff shall cause
the lis pendens to be removed from the public record as against all affected properties within 10
days of the date of this Order.” Order [ECF 183].
On November 15, 2011, plaintiff filed a “Notice of Cancellation of Lis Pendens,”
indicating she had mailed a “cancellation letter,” along with a copy of the Court’s November 4,
2011 Order, to the Recorder of Deeds of the Virgin Islands (the “Recorder”). [ECF 185]. Attached
to the Notice was a letter directed to the Recorder, listing the date and document number of the lis
pendens and asking that it be cancelled. [ECF 185-1].3
On September 30, 2015, the District Court entered judgment in favor of the Friis
Defendants and dismissed the claims against them. 	J. [ECF 389]. 	With respect to the claims
against the Friis Defendants, the Court found:
At its core, the instant action seeks to litigate the same claim
that was previously litigated in Dudley v. Myers [422 F.2d 1389 (3d
Cir. 1970)] and precluded in Hodge v. McGowan [No. CIV. 1992-
84, 1993 WL 723699, at *5 (D.V.I. Dec. 23, 1993)]. Accordingly,
the Court finds that Smith’s claims against the Friise Defendants are
barred by res judicata as she is attempting to relitigate the boundary
between Parcel No. 1 Estate Friise and Parcel No. 14I Estate John’s
Folly.
3 	The letter to the Recorder does not have a handwritten signature. The letter does contain a line, with an “X”
on it, beneath which appears “/s/ Ida Smith” and “Pro Se, Plaintiff” appearing immediately below her name. This is
followed by “Sincerely” with plaintiff Smith’s typewritten name below that. See [ECF 185-1].
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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Mem. Op. [ECF 388] at 18.
On January 8, 2016, Smith filed another “Notice of Lis Pendens,” stating “she claims title
pursuant to Treaty Series No. 629 (39 Stat. 1706) as an inheritable heir at law to the remnant lands
within Estate 14 John’s Folly, Coral Bay Quarter, St. John, United States Virgin Islands as shown
on the original survey, Register No. T3783, attached herein.” [ECF 456]. The instant motion for
sanctions followed.
The Friis Defendants bring this motion pursuant to Federal Rule of Civil Procedure
11(c)(2) and seek a variety of sanctions. They further request that the Court find Smith in contempt
under Federal Rule of Civil Procedure 70 for her failure to remove the lis pendens as the Court
ordered on November 4, 2011. 	Friis Defs.’ Mem. [ECF 466] at 1. 	Among other relief, these
parties seek (1) an order directing the Recorder to “remove the October 12, 2011 and January 8,
2016 lis pendens from the public record,” (2) a “compensatory fine,” (3) an order directing the
Recorder “not to accept any further filings from Smith without a court order verifying the validity
of her document,” (4) an order requiring plaintiff to pay damages, and (5) an injunction directed
to plaintiff to prohibit the filing of further lis pendens or legal actions against them without leave
of court. Id. at 11-12, 14-15.
In opposition, Smith avers there “isn’t a valid court order issued on this docket that Plaintiff
has violated.” Pl.’s Opp’n [ECF 472] at 16, 21. She further argues that the January 2016 notice
“does not affect Estate 13 Friis land.” Id. at 22, 23.
II. 	APPLICABLE LAW
A. 	Federal Rule of Civil Procedure 11
Rule 11 is intended to redress abusive litigation practices, and recognizes that a person
signing and submitting a document to the court has a "nondelegable responsibility to the court."
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FED. R. CIV. P. 11, advisory committee's note; see generally Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 393 (1990). 	Among other things, a party presenting a document to the court
“certifies that to the best of the person’s knowledge, information and belief” that the document “is
not being presented for any improper purpose, such as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation.” FED. R. CIV. P. 11(b)(1). Rule 11(c) allows a court to
impose sanctions on an attorney or party for violating Rule 11(b), as long as the party seeking
sanctions complies with the Rule's "safe harbor" provision. FED. R. CIV. P. 11(c)(2).4
Moreover, a motion for Rule 11 sanctions “must be made separately from any other motion
and must describe the specific conduct that allegedly violates Rule 11(b).” FED. R. CIV. P. 11(c)(2)
(emphasis added). "The procedural steps mandated by Rule 11(c)(2) are not mere technical rules,
but rather serve the substantial function of 'giv[ing] the offending party a safe harbor within which
to withdraw or correct the offending pleading.'" Kalenevitch, 502 Fed. Appx. at 125 (alteration in
original) (quoting Matrix IV, Inc. v. Am. Nat. Bank & Trust Co. of Chicago, 649 F.3d 539, 552
(7th Cir. 2011)). 	See In re Spring Creek Holding v. Keith, 2006 U.S. Dist. LEXIS 68145 , *10
(D.N.J. Sept. 18, 2006) (denying sanctions for one party where Rule 11 motion not brought
separately).
Furthermore, "proper Rule 11 analysis should focus on the circumstances that existed at
the time counsel filed the challenged paper." Mary Ann Pensiero v. Lingle, 847 F.2d 90, 95 (3d
Cir. 1988). Rule 11 sanctions "should only be imposed in those rare instances where the evident
4 	Thus, before seeking sanctions under Rule 11, a party must give notice of the alleged offending conduct and
allow the opposing party 21 days in which to withdraw or otherwise correct the challenged submission. Compliance
with this "safe harbor" provision is mandatory. Metro. Life Ins. Co. v. Kalenevitch, 502 Fed. Appx. 123, 125 (3d Cir.
2012). "If the twenty-one day period is not provided, the motion must be denied." Id. (quoting In re Schaefer Salt
Recovery, Inc., 542 F.3d 90, 99 (3d Cir. 2008)). The Friis Defendants assert they complied with Rule 11(c)(2) in that
they served their motion for sanctions on Smith on February 5, 2016, and that 21 days had passed without plaintiff
removing the offending lis pendens. Friis Defs.’ Mem. at 15 n.1.
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frivolousness of a claim or motion amounts to an 'abuse[] of the legal system.'" 	Paris v.
Pennsauken Sch. Dist., 2013 U.S. Dist. LEXIS 112280, at *21 (D.N.J. Aug. 9, 2013) (alteration in
original) (quoting Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d
Cir. 1988)).
B. 	Federal Rule of Civil Procedure 70
Federal Rule of Civil Procedure 70 provides:
If a judgment requires a party to convey land, to deliver a deed or
other document, or to perform any other specific act and the party
fails to comply within the time specified, the court may order the act
to be done—at the disobedient party’s expense—by another person
appointed by the court. When done, the act has the same effect as if
done by the party.
FED. R. CIV. P. 70(a). Further, “[t]he court may also hold the disobedient party in contempt.” FED .
R. CIV. P. 70(e).5
C. 	Civil Contempt
It is well-established that federal courts “have inherent power to enforce compliance with
their lawful orders through civil contempt.” Shillitani v. United States, 384 U.S. 364, 370 (1966);
see also United States v. Harris, 582 F.3d 512, 514 (3d Cir. 2009) (“It has long been recognized
that courts possess the inherent authority to hold persons in contempt.”); United States v. Terr. of
the V.I., 2014 U.S. Dist. LEXIS 178548, *18, n.12 (D.V.I. Dec. 30, 2014) (explaining that the
inherent contempt power is derived from 18 U.S.C. § 401). 	See also Carty v. Turnbull, 144 F.
Supp. 2d 395, 415 (D.V.I. 2001).
5 	The plain language of Rule 70 speaks to “judgments,” and the parties have not offered the Court authority to
guide the Court in determining whether relief under Rule 70 would be appropriate in the circumstances presented here.
However, because the Court has the inherent authority to sanction a party for contempt, it is not necessary to apply
Rule 70 for that purpose.
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“‘To prove civil contempt the court must find that (1) a valid court order existed, (2) the
defendant had knowledge of the order, and (3) the defendant disobeyed the order.’” Smith v. Katz,
2016 U.S. Dist. LEXIS 133002, *6 (D.V.I. Sept. 28, 2016) (quoting Harris v. City of Philadelphia,
47 F.3d 1311, 1326 (3d Cir. 1995)). A moving party must demonstrate by clear and convincing
evidence that a contempt finding is warranted. 	See, e.g., Lawn Doctor, Inc. v. Rizzo, 646 Fed.
Appx. 195, 199, 201 (3d Cir. 2016) (citations omitted); Carty v. Farrelly, 957 F. Supp. 727, 743
(D.V.I. 1997); Carty v. Turnbull, 144 F. Supp. 2d 395, 415 (D.V.I. 2001) (“where there is ground
to doubt the wrongfulness of the conduct, the defendant should not be held in contempt”).
To preclude a finding of contempt, in turn, the defendants must
demonstrate--not by mere assertions but by presenting evidence--
that they have taken “all reasonable steps” toward compliance.
Mere good faith efforts do not suffice. 	Indeed, evidence of good
faith is relevant only to gauge the extent of contempt sanctions.6
Carty v. Farrelly, 957 F. Supp. at 743 (citing Robin Woods, Inc. v Woods, 28 F.3d 396, 399 (3d.
Cir. 1994); Harley-Davidson Inc. v. Morris, 19 F.3d 142, 148-49 (3d Cir. 1994)). Moreover,
[t]he law affords courts great . . . discretion in fashioning an
appropriate sanction for contempt. A court exercises its discretion
based on its understanding of the case and the contemnor, paying
particular 	regard 	to 	the 	extent 	of 	prior 	compliance 	or
noncompliance. . . 	A court's remedial powers and discretion in
fashioning sanctions are not unlimited, however. 	“In selecting
contempt sanctions, a court is obliged to use the least possible power
adequate to the end proposed.”
Carty v. Turnbull, 144 F. Supp. 2d at 418 (citations omitted.). See also Lawn Doctor, 646 Fed.
Appx. at 200 (“A district court has wide, but not unlimited, discretion in fashioning appropriate
6 	“A defendant may escape contempt by establishing ‘that it could not possibly comply with the court's order
despite making all reasonable efforts to do so.’” Carty v. Turnbull, 144 F. Supp. 2d at 415 (quoting Harris v. City of
Philadelphia, 47 F.3d at 1341). “The defense of impossibility is limited to "physical impossibility beyond the control
of the alleged contemnor."’ Carty, 144 F. Supp. 2d at 418 (citation omitted).
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compensatory sanctions.") (internal quotation marks and citation omitted); United States v. Terr.
of the V.I., 2014 U.S. Dist. LEXIS 178548, at *18, 23 (the court has discretion to “fashion a
sanction that will achieve full remedial relief,” but must use “the least possible power adequate to
the end proposed”).
Sanctions for civil contempt are generally of two kinds: compensatory and coercive. See,
e.g., Carty v. Farrelly, 957 F. Supp. at 747 (the court can order a fine payable to the movant as
compensation, or payable to the court, but avoidable if the contemnor complies with the order). A
compensatory fine must not exceed the actual loss suffered. Carty v Turnbull, 144 F. Supp. 2d at
418. See also East End Taxi Services, Inc. v. Virgin Islands Taxi Association, Inc., 2008 U.S. Dist.
LEXIS 9360, *28 (D.V.I. Feb. 6, 2008) (“The amount of a compensatory fine may not exceed the
actual damages caused by the contemptuous conduct.”). 	“It is well established attorneys’ fees are
authorized as an element of damages that could be asserted against the contemnor.” Lawn Doctor,
646 Fed. Appx. at 198 (attorney’s fees award would be to remedy the injury, not because a party
was a prevailing party) (emphasis in original, citations omitted). “In addition to fines, the court
may require the contemnor to undertake affirmative acts, even acts not required by the initial
order.” 	Carty v. Turnbull, 144 F. Supp. 2d at 418 (citing 	In re Arthur Treacher's Franchisee
Litigation, 689 F.2d 1150, 1159 (3d Cir. 1982)).
III. 	DISCUSSION
A. 	Entitlement to Relief Under Rule 11
As noted, sanctions under Rule 11 are not available unless the motion for such sanctions is
“made separately from any other motion,” and describes “the specific conduct that allegedly
violates Rule 11(b).” FED. R. CIV. P. 11(c)(2). The Friis Defendants contend their request for Rule
11 sanctions derives from the allegedly ineffective “notice of cancellation” Smith filed on
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November 15, 2011, and from the filing of the January 2016 lis pendens affecting their property
after summary judgment was entered in the Friis Defendants’ favor in September 2015. 	Friis
Defs.’ Mem. at 14-15. Assuming these contentions adequately describe the conduct in question,
the Friis Defendants are not entitled to sanctions under Rule 11 because they did not bring the
motion for Rule 11 relief separately from any other motion. See In re Spring Creek Holding v.
Keith, 2006 U.S. Dist. LEXIS 68145, at *10.
B. 	Entitlement to a Finding of Contempt
The Friis Defendants request that Smith be found in contempt because she failed to release
her October 2011 lis pendens after being ordered to do so on November 4, 2011. 7 They argue her
conduct satisfies the requirements for a finding of contempt because there was a valid order, of
which Smith was aware, and which she violated. Friis Defs.’ Mem. at 8. See Smith v. Katz, 2016
U.S. Dist. LEXIS 133002, at *6.
First, the undersigned addresses Smith’s opposition that she did not violate any valid court
order, because she had not consented to the undersigned Magistrate Judge presiding over any part
of this case. Smith Opp’n at 16. As Smith has been informed on a number of occasions, under 28
U.S.C. § 636 (b)(1)(A), a magistrate judge is authorized to hear and determine any non-dispositive
pretrial matter designated to it by a district judge. Such authority is not dependent upon consent
of the parties. 	“In this Circuit, the issue of discharge of lis pendens notices has also been
considered non-dispositive.” 	In re Spring Creek Holding v. Keith, 2006 U.S. Dist. LEXIS 68145,
7 	The Friis Defendants also seem to argue that Smith can be found in contempt for placing the second lis
pendens in January 2016, but they point to no order that specifically prohibited her from filing that document. While
the new filing might support a claim for Rule 11 sanctions (if brought in a separate motion), contempt does not appear
to be the appropriate pursuit for that filing. See, e.g., In re Spring Creek Holding v. Keith, 2006 U.S. Dist. LEXIS
68145 (D.N.J. Sept. 18, 2006)(allowing Rule 11 sanctions for improper filing of lis pendens).
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at *7 (citing Demenus v. Tinton 35, Inc., 873 F.2d 50 (3d Cir. 1989)).8 Here, without objection
from Smith, the undersigned entered an Order on November 4, 2011, which, “as agreed in open
court,” required Smith to “cause the lis pendens to be removed from the public record as against
all affected properties within 10 days” of November 4, 2011. Order [ECF 183]. The November
4, 2011 Order did not dispose of any claims, defenses or parties in this matter, and plaintiff Smith
did not object to the Order or seek review of it by the District Court. See 28 U.S.C. § 636 (b)(1)(A)
(allowing a district judge to “reconsider” any order of a magistrate judge shown to be “clearly
erroneous or contrary to law”). That there was a valid order in place cannot readily be disputed.
Similarly, that Smith was aware of the Order cannot be questioned, as she was in Court when the
directive was originally orally issued from the bench.
The remaining issue then is whether Smith violated the November 4, 2011 Order to
remove the lis pendens from the public record. The record reflects that Smith made some effort
to comply, as she filed a “Notice of Cancellation of Lis Pendens,” on November 15, 2011,
indicating she had mailed a “cancellation letter,” along with a copy of the Court’s November 4,
2011 Order, to the Recorder. [ECF 185]. However, the Friis Defendants submit the affidavit of
Linda Berry, a “Title Agent,” who avers that she searched the records at the Recorder’s office and
“found no release” of the October 12, 2011 lis pendens. Berry Aff. [ECF 466-1] at ¶ 3.9 Moreover,
in response to the motion, Smith does not argue that she in fact removed the lis pendens, nor does
she offer any other explanation for its continued existence on the property records.
8 	In In re Spring Creek, the Magistrate Judge dealt with both the issue of sanctions and whether lis pendens
should be discharged. In re Spring Creek Holding v. Keith, 2006 U.S. Dist. LEXIS 68145.
9 	Berry also avers that this search resulted in finding the new lis pendens dated January 8, 2016, “indexed
against Parcel 13 Estate Friis . . as well as against” the Friis Defendants. Berry Aff. [ECF 466-1] at ¶ 4. Berry opines
that Smith’s filings “clearly cloud the title to the subject parcels named in the Complaint.” Id. at ¶ 5.
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Furthermore, as the authorities make clear, even if the Court did find that Smith had acted
in good faith in sending a letter to the Recorder, the Court cannot find that she has demonstrated
that she has taken "all reasonable steps" toward compliance. See Carty v. Farrelly, 957 F. Supp.
at 743. 	Nor has Smith established that she “could not possibly comply with the court's order
despite making all reasonable efforts to do so.’” Carty v. Turnbull, 144 F. Supp. 2d at 415 (quoting
Harris v. City of Philadelphia, 47 F.3d at 1341).
Based upon this record, the Court concludes that Smith has violated the November 4, 2011
Order. All three required elements having been established by clear and convincing evidence, the
Court finds that Smith is in contempt of the Court’s November 4, 2011 Order.
C. 	Appropriate Sanctions
Having found contempt, the Court next turns to consideration of an appropriate sanction.
In so doing the Court must be mindful to apply the “least possible power adequate” to achieve the
desired end. 	It must also be remembered, however, that the Court has broad discretion in
determining an appropriate sanction.10 	The Friis Defendants seek several types of sanctions. The
proposed sanctions are aimed at (1) removing the lis pendens from the property records, 11 and (2)
compensating them for any damages caused by the filings.
First, with respect to removal of the lis pendens, the Friis Defendants ask the Court to issue
a “coercive sanction” in the form of an order directed to the Recorder to remove the offensive lis
pendens, and ordering the Recorder not to accept future filings. Inasmuch as the Recorder is not
before this Court, the Court is without jurisdiction to issue orders directed to the Recorder. See
10 	Carty v. Turnbull, 144 F. Supp. 2d at 418.
11 	The Friis Defendants also seek to prevent Smith from filing in the future any lis pendens or litigation against
them without leave of Court. Friis Defs.’ Mem. at 11-12, 14-15.
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Glenn v. Dunlop, 423 Fed. Appx. 249, 253 (3d Cir. 2010) (denying a similar request as “the
Recorder of Deeds is not a party”).
State law governs the creation and discharge of lis pendens. See Porter v. T.D. Bank, N.A.,
2012 U.S. Dist. LEXIS 18302, *3 (E.D. Pa. Feb. 13, 2012); Bighorn Capital, Inc. v. 1000 SMA,
LLC, 2005 U.S. Dist. LEXIS 27862, *7, n.2 (N.D. Ill Nov. 9, 2005). Here, Title 28, Virgin Islands
Code, § 130 provides the authority for the filing of a lis pendens, but gives no guidance whatsoever
regarding the mechanism for cancelling or releasing such a filing. 	Compare N.J. Stat. Ann. §
2A:15-6 to §15-15 (New Jersey statute providing detailed mechanisms for filing, dealing with and
cancelling lis pendens) with 28 V.I.C. § 130 (Virgin Islands statute containing a single section
providing for filing only).
Case law must then provide direction with respect to the available mechanism for achieving
removal of a lis pendens. This Court’s review of the authorities leads to the conclusion that courts
in the territory either (1) issue orders directed to the parties to take whatever action is necessary to
cause cancellation of the notices, or (2) simply declare them to be invalid. See, e.g., Day v. White,
2015 U.S. Dist. LEXIS 132578, *50-51 (D.V.I. Sept. 30, 2015) (ordering the notice be “released
forthwith”); Gov't of the United States ex rel. Callwood v. Gov't of the United States V.I., 276 F.
Supp. 2d 434 (D.V.I. 2003) (“striking” lis pendens and stating it “must be removed from the land
records … as void and of no effect”); Enterprise Properties Inc. v. Hills Development Corp., 1973
U.S. Dist. LEXIS 5216 (D.V.I. Nov. 30, 1973) (ordering defendants to partially release a lis
pendens); Wheatley v. Magras, 2012 V.I. LEXIS 3, *23 (V.I. Super. Ct. Jan. 11, 2012) (ordering
plaintiffs to remove lis pendens by a date certain).
With respect to whether any compensatory fine or damages should be ordered, the Friis
Defendants say they are entitled to a “compensatory fine” for the harm done to them due to the
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“cloud upon the title” of their property. They also contend Smith’s conduct caused them to “incur
expenses including the cost of a records search,” and “attorney’s fees and costs incurred in filing
the instant motion.” 	Friis Defs.’ Mem. at 12-13. 12
The existence of a lis pendens may impair the marketability of property. 	See Chrysler
Corp. v. Fedders Corp., 670 F.2d 1316, 1322, 1324 (3d Cir. 1981) (lis pendens “operates to restrict
the owner's full enjoyment of the property” but does not “result in a significant taking”); Lloyd v.
Szabados, 2001 U.S. Dist. LEXIS 18838, *8 (D.V.I. Nov. 7, 2001)(“[t]hese notices have created
a cloud over legal title”). 	However, the notice does not “establish an actual lien against the
property.” Pen-Del Mortgage Assocs. v. FDIC, 1994 U.S. Dist. LEXIS 8981, *4 (E.D. Pa. Jun.
29, 1994), Porter, 2012 U.S. Dist. LEXIS 18302, at *3 (same); see also Bighorn Capital, 2005
U.S. Dist. LEXIS 27862, at *11 (lis pendens “does not formally restrain sale, conveyance or
purchase”) (citations and internal quotations omitted).
Moreover, the mere existence of a “cloud” on title does not in itself establish any damage.
See Glenn v. Dunlop, 2009 U.S. Dist. 14912, *11 (D.V.I. Feb. 23, 2009), rev’d in part on other
grounds, 423 Fed. Appx. 249 253 (3d Cir. 2010) (in a slander of title case “a plaintiff must present
evidence of how the clouded title resulted in some pecuniary loss”) (citations omitted). 	Thus,
unless there is shown an actual intent to sell or otherwise deal with the property that is restrained
due to the existence of the lis pendens, its mere existence would not appear to be compensable in
the event of contempt. 	See Carty v. Turnbull, 144 F. Supp. 2d at 418 (compensatory fine may not
exceed actual damages); East End Taxi Services, 2008 U.S. Dist. LEXIS 9360, at *28 (same).
12 	The Friis Defendants proffered no evidence of the extent to which they have incurred any such title search
fees or attorney’s fees and costs.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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Page 14
Finally, the Friis Defendants ask the Court to enjoin Smith from filing additional
documents against the property, or filing any new legal action against them, without prior leave of
court. Friis Defs.’ Mem. at 15. 	Such relief would appear to be available in these circumstances.
See Gage v. Wells Fargo Bank, N.A., 555 Fed. Appx. 148 (3d Cir. 2013) (“District courts in this
circuit may issue an injunction under the All Writs Act, 28 U.S.C. § 1651(a), to require litigants
who have engaged in abusive, groundless, and vexatious litigation to obtain approval of the court
before filing further complaints.”) (citing Chipps v. U.S.D.C. for M.D. of PA, 882 F.2d 72, 73 (3d
Cir. 1989)); Chipps, 882 F.2d at 73 (“a pattern of groundless and vexatious litigation will justify
an order prohibiting further filings without permission of the court”)).13 See also Glenn v. Dunlop,
423 Fed. Appx. 249 (3d Cir. 2010) (approving the imposition of a filing injunction).
IV. 	CONCLUSIONS
Having considered the parties’ memoranda, the applicable authorities, and the available
remedies, it is hereby RECOMMENDED as follows:
1. 	The Friis Defendants’ motion for sanctions be GRANTED in part and DENIED in
part.
2. 	That the motion for sanctions pursuant to Federal Rule of Civil Procedure 11 be
DENIED.
13 	The District Court in Gage observed, “[w]hile the Court should be flexible when dealing with pro se litigants,
and the injunction is an extreme remedy, I must ensure that the Court's limited resources are allocated in such a manner
as to protect and promote the interests of justice. No plaintiff should be permitted to repeatedly abuse the judicial
system for his/her own gain.” Gage v. Wells Fargo Bank, N.A., 2013 U.S. Dist. LEXIS 95347, *20 (D.N.J. Jul. 9,
2013) (enjoining pro se litigant from filing certain claims without leave of court ).
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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3. 	That plaintiff Smith be found in contempt of the Court’s November 4, 2011 Order
to remove the lis pendens filed on October 18, 2011.
4. 	That Smith be ordered to forthwith cause to be removed from the public records
maintained by the Recorder the lis pendens filed on October 18, 2011, and to file within 10 days
of the date of the District Court’s order certified proof thereof obtained from the Recorder of such
removal. In the event of Smith’s failure to abide by such order, the Court should enter an order,
in a form appropriate for filing with the Recorder, declaring the October 18, 2011 lis pendens to
be void and of no effect.
5. 	That Smith be ordered to forthwith cause to be revised the January 8, 2016 lis
pendens to reflect that it does not bear on the Friis Defendants’ property, and to file within 10 days
of the date of the District Court’s order certified proof thereof obtained from the Recorder of such
revision. In the event of Smith’s failure to abide by such order, the Court should enter an order,
in a form appropriate for filing with the Recorder, declaring the January 8, 2016 lis pendens to be
void and of no effect.
6. 	That the Court impose a filing injunction on Smith to forbid the future filing of lis
pendens against, or other litigation affecting, the real property at Parcel No. 1 Estate Friis, St. John,
U.S. Virgin Islands.
7. 	That the Court require the submission of additional evidentiary materials to support
any claim for a compensatory sanction by the Friis Defendants, and provide for an opportunity for
Smith to respond to such material. 	The Court should also consider convening an evidentiary
hearing to resolve the issue of what, if any compensatory fine should be levied.
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Any objections to this Report and Recommendation must be filed in writing within 14 days of
receipt of this notice. Failure to file objections within the specified time shall bar the aggrieved
party from attacking such Report and Recommendation before the assigned District Court Judge.
28 U.S.C. § 636(b)(1); LRCi 72.3.
Dated: March 14, 2017 	S\_________________________________
RUTH MILLER
United States Magistrate Judge
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