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
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,
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.
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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.
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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
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Susan Greer Littlefield
Pro se,
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 Ida Smith’s motion, which is labeled
“Motion to Vacate.”
I. FACTUAL AND PROCEDURAL HISTORY
On March 24, 2011, Ida Smith (“Smith”) initiated this
action to determine boundaries and to quiet title to various
parcels of land in Saint John, United States Virgin Islands. On
April 1, 2011, Smith filed an amended complaint (the “First
Amended Complaint”). 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, United States Virgin Islands EXCEPT The
United States of America, National Park Service.” ECF Nos. 1, 4.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
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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 named more than thirty
defendants, including the National Park Service (the “NPS”), an
agency of the United States.
The NPS subsequently moved to dismiss Smith’s complaint for
lack of subject matter jurisdiction. On August 1, 2016, the
Court granted the NPS’s motion, holding that Smith’s pleading
did not comply with the Quiet Title Act and that Smith failed to
adequately allege that she had standing to bring her claims. The
Court dismissed the Second Amended Complaint without prejudice.
Smith was given until August 8, 2016, to file an amended
complaint.
On August 8, 2016, Smith filed an amended complaint. The
amended complaint, however, did not “delineat[e] the changes or
additions” made from the dismissed complaint as required by
Local Rule of Civil Procedure 15.1 (hereinafter “LRCi 15.1”).
On August 10, 2016, the NPS moved to strike the complaint.
The Court granted that motion on August 16, 2016, and ordered
Smith’s amended complaint stricken from the record. The Court
gave Smith until 3 P.M. on August 18, 2016, to file an amended
complaint that complied with LRCi 15.1. The Court further
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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explained that “[c]hanges or additions are generally delineated
using the ‘red-line’ option in word-processing programs.” ECF
No. 511 at 6 n.1. Smith was warned that a failure to comply with
LRCi 15.1 “may result in the dismissal of her claims against the
United States with prejudice.” Id. at 6.
Smith did not file another amended complaint within the
time granted by the Court’s August 16, 2016, order. Rather, on
August 18, 2016, three hours before the Court’s deadline, Smith
filed the instant motion, which is labeled as a “Motion to
Vacate.” In that motion, Smith argues that the Court’s August
16, 2017, order should be vacated. She asserts that the Court
erred when it granted the NPS’s motion to strike Smith’s
complaint.
On January 12, 2017, the Court held a hearing in this
matter. At the hearing, Smith was afforded an opportunity to be
heard on her “Motion to Vacate.” With respect to that motion,
Smith argued that, “under local court rule 15.1 . . . [,] if the
Court orders you to amend your complaint[,] [the complaint] does
not have to be redlined.” Hearing Tr., ECF No. 586 at 23:20-22.
At the January 12, 2017, hearing, Smith also asserted that
she did not file a redlined complaint in response to the Court’s
August 16, 2016, order because the order “said that [she] may
[file an amended complaint], not that [she] shall.” Id. at 586
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at 22:10-11. Also on January 12, 2017, the Magistrate granted
Smith leave to file an amended complaint that complied with LRCi
15.1 by 10:00 A.M. on January 17, 2017. To date, Smith has not
filed another amended complaint.
II. DISCUSSION
Local Rule of Civil Procedure 7.3 permits motions for
reconsideration only when there is (1) an intervening change in
controlling law; (2) new evidence available; or (3) a need to
correct clear error or prevent manifest injustice. LRCi 7.3; see
also Max's Seafood Café by Lou–Ann, Inc. v. Quinteros, 176 F.3d
669, 677 (3d Cir.1999) (citing North River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995)). A motion
for reconsideration “shall be filed within fourteen (14) days
after entry of the order or decision unless the time is extended
by the Court.” LRCi 7.3.
The purpose of a motion for reconsideration “is to correct
manifest errors of law or fact or to present newly discovered
evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d
Cir.1985). “Such motions are not substitutes for appeals, and
are not to be used ‘as a vehicle for registering disagreement
with the court's initial decision, for rearguing matters already
addressed by the court, or for raising arguments that could have
been raised before but were not.’” Cabrita Point Dev., Inc. v.
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Evans, 52 V.I. 968, 975 (D.V.I. 2009) (quoting Bostic v. AT & T
of the V.I., 312 F. Supp. 2d 731, 733 (D.V.I. 2004)).
In the context of a motion to reconsider, “manifest
injustice ‘generally means that the Court overlooked some
dispositive factual or legal matter that was presented to it.’”
Id. (quoting In re Rose, No. 06–1818(JLP), 2007 U.S. Dist. LEXIS
64622, at *3 (D.N.J. Aug. 30, 2007)). Manifest injustice has
also been defined as “‘an error in the trial court that is
direct, obvious, and observable.’” Tenn. Prot. & Advocacy, Inc.
v. Wells, 371 F.2d 342, 348 (6th Cir. 2004) (quoting Black's Law
Dictionary 974 (7th ed. 1999)). “[M]ost cases . . . use the term
‘manifest injustice’ to describe the result of plain error.”
Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1425 (5th
Cir. 1996).
III. ANALYSIS
While Smith’s motion is labeled as a motion to vacate, at
its core it asserts that the Court erred when it issued its
August 16, 2016, order. She urges the Court to reconsider its
ruling. In that context, the Court understands, and construes,
Smith’s motion as one for reconsideration of the August 16,
2016, order.1 Smith has not brought to the Court’s attention any
1 In her motion, Smith takes issue with the brief time period within which she
was to file an amended complaint. See ECF No. 512 at 5 (“Plaintiff is caring
for her mother . . . and cannot amend her complaint, yet again, with the two
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intervening change of law or new evidence. The Court is also
unaware of any. Thus, the Court understands Smith to proceed on
the theory of clear error or manifest injustice.
Smith argues that the Court erred in striking her complaint
for several reasons. First, Smith argues that LCRi 15.1 only
applies when a plaintiff moves to amend a complaint. Because the
Court had already granted Smith leave to amend her complaint,
the argument goes, it cannot require her to comply with LCRi
15.1. Second, Smith argues that failure to comply with LCRi 15.1
is not a proper ground for a motion to strike under Federal Rule
of Civil Procedure 12(f). Third, Smith argues that the Court
erred in granting the NPS’s motion to strike before her response
was due, denying her an opportunity to respond. The Court
addresses each of these arguments in turn.
days, by August 18 at 3pm, due to scheduled medical appointments for her
mother.” (citations omitted)). Smith did not, however, explicitly ask for
more time to file an amended complaint. Moreover, since filing her motion for
reconsideration, Smith has made it abundantly clear she intends to stand on
the vacated complaint. See, e.g., Hearing Tr., ECF No. 586 at 22:10-11 (“THE
COURT: Have you [filed an amended complaint] to date? MS. SMITH: I did not
because you said that I may [file an amended complaint], not that I shall.”);
24:6-9 (“THE COURT: . . . My question isn’t whether you’ve been ordered to,
my question is just whether you intend to. Do you intend to [file an amended
complaint that complies with LRCi 15.1] currently? MS. SMITH: Not if I don’t
have to, no.”). Nevertheless, on January 12, 2017, the Magistrate granted
Smith leave to file an amended complaint by 10:00 A.M. on January 17, 2017.
See Hearing Tr., ECF No. 487 at 20:1-5. Smith failed to take advantage of
that additional time, and to date, she has not filed another amended
complaint.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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1. Application of LRCi to Amended Pleadings
The Court will first consider whether Smith is bound by
LCRi 15.1. That rule provides that
A party who moves to amend a pleading shall file the
amendment with the motion. Except as otherwise
ordered by the Court, any amendment to a pleading,
whether filed as a matter of course or upon a motion
to amend, must reproduce the entire pleading as
amended specifically delineating the changes or
additions and may not incorporate any prior pleading
by reference. A proffered amended pleading must note
prominently on the first page the numbered amendment
it represents; i.e., 1st, 2nd, 3rd amendment, etc.
LRCi 15.1.
In part, LCRi 15.1 requires the filing of an amendment by
“[a] party who moves to amend a pleading.” LRCi 15.1.
Significantly, LRCi 15.1 also directs that “any amendment to a
pleading . . . must reproduce the entire pleading as amended
specifically delineating the changes or additions.” Id.
(emphasis added). That directive applies “[e]xcept as otherwise
ordered by the Court.” Id.
In its August 1, 2016, order, the Court instructed Smith
that she “may file amended claims against the United States.”
ECF No. 511 at 6. The Court did not relieve Smith of her
obligation to follow the Local Rules of Procedure, nor was the
Court required to specifically instruct Smith to follow these
rule. See Carter v. Comm'r of Internal Revenue, 784 F.2d 1006,
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1008 (9th Cir.1986) (“Although pro se, [plaintiff] is expected
to abide by the rules of the court in which he litigates.”).
Indeed, the letter and spirit of the Court’s August 16,
2016, order was to point out that (1) Smith was required to
comply with LRCi 15.1; (2) Smith failed to comply with LRCi
15.1; and (3) Smith could remedy her deficiency if she filed a
compliant complaint within a time certain. The Court went to
some length to explain how compliance could be achieved. Smith
chose not to cure her deficiency. Moreover, at the January 12,
2017, hearing, Smith was specifically instructed by the
Magistrate to refile her stricken complaint, “call it the third
amended complaint, and delineate where the changes are from the
previous complaint.” Hearing Tr., ECF NO. 587 at 10:13-15; see
also id. at 20:1-4 (“You may file an amended complaint by no
later than Tuesday morning at 10 a.m. It will be titled the
Third Amended Complaint. You will accompany it by a redlined
version.”). Notwithstanding that specific instruction, Smith has
elected not to file an amended complaint that complies with LRCi
15.1.
The Court finds no error in that approach.
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2. The Court’s Authority to Strike a Pleading
The Court will now address Smith’s argument that the Court
committed clear error when it granted the NPS’s motion to strike
Smith’s complaint.
District courts have the “inherent authority to control
[their] docket[s]” and are “empower[ed] . . . to dismiss a case
as a sanction for failure to follow procedural rules.” Knoll,
707 F.3d at 409. More to the point, “[d]istrict courts have the
inherent power to strike items from their docket for litigation
conduct.” Ibrahim v. U.S. Dep’t of Homeland Sec., 835 F.3d 1048,
1065 (9th Cir. 2016). As discussed above, all parties--pro se as
well as represented--can properly be required to follow a
district court’s local rules of procedure. See, e.g., Parkell v.
Danberg, 833 F.3d 313, 324 n.6 (3d Cir. 2016) (“Although courts
liberally construe pro se pleadings, unrepresented litigants are
not relieved from the rules of procedure . . . .”); Mearin v.
Folino, 654 Fed. App’x 58, 61 (3d Cir. 2016) (“Even with the
leniency due pro se litigants, [the pro se plaintiff] could
expect to be held to the local rules surrounding summary
judgment motion practice.”).
As the Court has explained in the past, the purpose of LRCi
15.1 “is to have the plaintiff identify the differences between
the [amended] complaint and the original pleading.” David v. AMR
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Servs. Corp., 191 F.R.D. 89, 93 (D.V.I.), aff'd without opinion,
251 F.3d 153 (3d Cir. 2000). Such rules are quite common in the
district courts. See, e.g., Sherrod v. Ryan, No.
CV150296PHXDJHESW, 2016 WL 4035326, at *1 (D. Ariz. July 22,
2016) (discussing local rule which requires plaintiffs to
provide an amended complaint that “indicat[es] in what respect
it differs from the original [c]omplaint (i.e., by bracketing or
striking through the text to be deleted and underlining the text
to be added)”); Bohnhoff v. Wells Fargo Bank, N.A., 853 F. Supp.
2d 849, 858 (D. Minn. 2012) (describing local rule which
requires “a redline comparing the proposed amended pleading to
the party’s operative pleading” (internal quotation marks
omitted)); Turner v. Wetzel, No. 3:13-CV-2680, 2015 WL 5695305,
at *3 (M.D. Pa. Sept. 28, 2015) (discussing local rule which
requires “a copy of the original pleading in which stricken
material has been lined through and any new material has been
inserted and underlined or set forth in bold-faced type”).
Rules like LRCi 15.1 impose a relatively minimal burden on
a plaintiff, who must simply mark out what she changed in the
new amendment. At the same time, such rules pay courts and other
litigants dividends in saving them from “submit[ing] to the
exercise of comparing two complaints line by line to determine
the additions and deletions.” Hansen v. Governor Juan F. Luis
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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Hosp. & Med. Ctr., No. SX-15-CV-509, 2016 WL 3881016, at *3
(V.I. Super. July 11, 2016); see also David, 191 F.R.D. at 93
(explaining increased difficulty “in determining the new
substantive allegations of the proposed amended complaint” when
plaintiff fails to comply with LRCi 15.1). As such, LRCi 15.1
and similar rules are invaluable to courts in exercising their
inherent authority to manage dockets.
Though Smith was obligated to comply with LRCi 15.1, she
failed to do so. The Court was well within its authority to
strike the Complaint for that reason. See Ibrahim, 835 F.3d at
1065; see also Bohnhoff, 853 F. Supp. 2d at 858 (“Where, as
here, the plaintiff has not filed a motion to amend or a
redlined complaint, the motion is not properly before the
court.”); cf. Brooks–McCollum v. Emerald Ridge Serv. Corp., 563
Fed. App’x 144, 147 (3d Cir. 2014) (holding that “fail[ure] to
comply with D. Del. Local Rule 15.1, which requires that a draft
of the proposed amended complaint be submitted with the motion .
. . is an adequate basis for denying leave to amend”).
Accordingly, the Court finds no clear error or manifest
injustice.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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3. The Need for a Response From Smith to the NPS’s Motion
to Strike
The Local Rules recognize that ordinarily a party has 14
days after service of a motion by another party to file a
response. LRCi 7.1(e)(1). At the same time, the Local Rules also
provide that the Court is not prohibited “from ruling without a
response or reply when deemed appropriate.”2 LRCi 7.1(e)(3).
Here, LRCi 15.1 required Smith to file an amended complaint
that “specifically delineat[ed] the changes or additions” made
from the original. LRCi 15.1. She clearly did not. As Smith’s
objectively demonstrable failure to comply with the rule was an
immutable procedural fact, the Court deemed it appropriate to
rule on the NPS’s motion to vacate. The Court hastens to note
that that disposition was without prejudice. Indeed, in an
abundance of caution, the Court provided Smith with leave to
cure her deficient amendment.
The Court finds no error in that approach.
2 That approach is not uncommon among trial courts. See, e.g., Osman v. Bimbo
Bakeries USA, Inc., No. 14-CV-03281-MEH-CBS, 2016 WL 322390, at *1 (D. Colo.
Jan. 27, 2016) (“The Court has determined no further briefing is required and
rules on the Motion without response from Defendant, pursuant to D.C. Colo.
LCivR 7.1(d).”); Garden City Boxing Club, Inc. v. Collins, No. CIVA B-05-260,
2006 WL 2037567, at *3 n.4 (S.D. Tex. July 18, 2006) (“[T]he Court concludes
that the underlying motion should be denied even without a response from the
Plaintiff . . . .”).
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Having found no grounds under which to reconsider the order
striking Smith’s amended complaint, the Court will deny Smith’s
motion to reconsider.
The premises considered, it is hereby
ORDERED that Ida Smith’s “Motion to Vacate” docketed at ECF
Number 512 is DENIED.
S\
CURTIS V. GÓMEZ
District Judge
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