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
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
) Civil No. 2011-41
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case: 3:11-cv-00041-RAM-GAT Document #: 625 Filed: 01/11/18 Page 1 of 13

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.
)
)
)
)
)
)
)
)
)
)
)
)
APPEARANCES:
Ida Smith
New York, NY
Pro se plaintiff,
Gretchen Shappert, United States Attorney
Angela Tyson-Floyd, AUSA
Joycelyn Hewlett, 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,
Case: 3:11-cv-00041-RAM-GAT Document #: 625 Filed: 01/11/18 Page 2 of 13

Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 3
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.
Case: 3:11-cv-00041-RAM-GAT Document #: 625 Filed: 01/11/18 Page 3 of 13

Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 4
For Kevin M. Walsh and Treasure View LLC,
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,
Case: 3:11-cv-00041-RAM-GAT Document #: 625 Filed: 01/11/18 Page 4 of 13

Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
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.
ORDER
GÓMEZ, J.
Before the Court are the motions of Ida Smith; Wayne
Chesterfield; Linda V. Smith; William E. Smith; and Eloise
Smith-Hendricks to vacate the Court’s March 28, 2017, Judgment
in this action.
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”).
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
Case: 3:11-cv-00041-RAM-GAT Document #: 625 Filed: 01/11/18 Page 5 of 13

Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 6
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.
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.
Smith did not allege the citizenship of those defendants. On
August 9, 2011, before the Court could rule on Smith’s motion
for leave to amend, 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
Wayne Chesterfield (“Chesterfield”) waived service of summons.
The waiver form was dated August 21, 2011. On October 5, 2011,
Chesterfield filed a document that purported to answer the July
18 Proposed Complaint. That document also purported to assert a
cross-claim.
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”). On March 27, 2014, Linda V. Smith, William
E. Smith, and Eloise Smith-Hendricks (collectively, the “Smith
Case: 3:11-cv-00041-RAM-GAT Document #: 625 Filed: 01/11/18 Page 6 of 13

Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 7
Defendants”) filed an answer to the Second Amended Complaint.
Chesterfield did not answer the Second Amended Complaint.
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 (collectively, the “Friis Defendants”)
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 March 1, 2016, the Friis Defendants filed a motion for
sanctions against Smith. Also on March 1, 2016, Smith filed a
motion for sanctions against counsel for defendants Kevin Walsh
and Treasure View LLC. On February 13, 2017, the Court referred
both motions for sanctions to the Magistrate for reports and
recommendations. On March 13, 2017, the Magistrate filed a
report and recommendation recommending that the Court deny
Smith’s motion for sanctions. On March 14, 2017, the Magistrate
Case: 3:11-cv-00041-RAM-GAT Document #: 625 Filed: 01/11/18 Page 7 of 13

Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 8
filed a report and recommendation recommending that the Court
grant in part and deny in part the Friis Defendants’ motion for
sanctions. On March 28, 2017, the Court adopted both of the
Magistrate’s reports and recommendations.
On March 28, 2017, the Court entered a memorandum opinion
holding that Smith lacked standing to bring her remaining
claims. The Court also held that Chesterfield’s cross-claim was
not properly before the Court. The Court entered judgment
dismissing Smith’s Second Amended Complaint, dismissing
Chesterfield’s cross-claim, and dismissing and closing this
case.
On April 28, 2017, Smith filed a motion captioned “motion
to vacate.” See ECF No. 611. In that motion, Smith seeks to
vacate the Court’s March 28, 2017, (1) order denying Smith’s
motion for sanctions; (2) order granting in part and denying in
part the Friis Defendants’ motion for sanctions; and (3)
memorandum opinion and judgment dismissing this case. Smith
argues that the Court made various legal errors in these and
earlier orders. On May 1, 2017, Chesterfield filed a motion
captioned “motion to vacate” seeking to vacate the Court’s March
28, 2017, memorandum opinion and judgment dismissing his cross-
claim. See ECF No. 614. Chesterfield argues that “repleading was
Case: 3:11-cv-00041-RAM-GAT Document #: 625 Filed: 01/11/18 Page 8 of 13

Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 9
the proper remedy[,] not dismissal.”1 See id. On May 5, 2017, the
Smith Defendants filed a motion captioned “motion to vacate.”
The Smith Defendants seek to vacate the Court’s March 28, 2017,
memorandum opinion and judgment dismissing this case. The Smith
Defendants argue that the Court made various legal errors in
doing so.
II. DISCUSSION
Local Rule of Civil Procedure 7.3 (“LRCi 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
1 Chesterfield also filed a Notice of Appeal on May 1, 2017. Chesterfield
subsequently moved to voluntarily dismiss his appeal. See Third Circuit Court
of Appeals Docket No. 17-2005. The Third Circuit granted Chesterfield’s
motion on September 21, 2017. Id.
Case: 3:11-cv-00041-RAM-GAT Document #: 625 Filed: 01/11/18 Page 9 of 13

Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 10
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.
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
The parties have not identified the legal basis for their
motions to vacate. Each of the challenged orders was entered on
March 28, 2017. Smith filed her motion to vacate 31 days later
Case: 3:11-cv-00041-RAM-GAT Document #: 625 Filed: 01/11/18 Page 10 of 13

Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 11
on April 28, 2017. Chesterfield filed his motion to vacate 34
days later on May 1, 2017. The Smith Defendants filed their
motion to vacate 38 days later on May 5, 2017. Accordingly, all
of motions to vacate, if construed as motions for
reconsideration under LRCi 7.3, are untimely. Further, while
LRCi 7.3 permits extensions of time to file for “good cause,”
see LRCi 7.3, no party has requested an extension.
Parties dissatisfied with a district court’s ruling may
also bring a motion to alter or amend a judgment under Federal
Rule of Civil Procedure 59(e) (“Rule 59(e)”) or a motion for
relief from a final judgment, order, or proceeding under Federal
Rule of Civil Procedure 60(b) (“Rule 60(b)”).
Rule 59(e) motions and Rule 60(b) motions “serve similar
functions” but “each has a particular purpose.” United States v.
Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003). Under Rule 60(b), a
party may seek relief from “a final judgment, order, or
proceeding” for one of six reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to
move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an
opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that
Case: 3:11-cv-00041-RAM-GAT Document #: 625 Filed: 01/11/18 Page 11 of 13

Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 12
has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). A motion under Rule 59(e), on the other
hand, “is a ‘device to relitigage the original issue’ decided by
the district court, and used to allege legal error.” Fiorelli,
337 F.3d at 288 (quoting Smith v. Evans, 853 F.2d 155, 158–59
(3d Cir. 1988)).
Here, each motion asserts the Court made legal errors when
issuing the challenged orders. In that context, the Court
understands, and construes, the motions as motions to alter or
amend a judgment under Rule 59(e). See id. (“As a Rule 60(b)
motion ‘may not be used as a substitute for an appeal, and that
legal error, without more’ does not warrant relief under that
provision, we will deem Fiorelli's motion as a request under
Rule 59(e).” (quoting Smith, 853 F.2d at 158)); see also Kamara
v. Attorney Gen. of U.S., 206 F. App'x 189, 190–91 (3d Cir.
2006) (“In other words, Kamara alleged legal error by the
District Court--the province of Rule 59(e).”).
Rule 59(e) motions “must be filed no later than 28 days
after the entry of the judgment.” Fed. R. Civ. P. 59(e). The
Court does not have discretion to extend this time limit. See
Fed. R. Civ. P. 6(b)(2) (“A court must not extend the time to
Case: 3:11-cv-00041-RAM-GAT Document #: 625 Filed: 01/11/18 Page 12 of 13

Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 13
act under Rule[] . . . 59 . . . (e).”). Each of the motions was
filed more than 28 days after the challenged judgment.
The premises considered, it is hereby
ORDERED that the Ida Smith’s motion to vacate docketed at
ECF Number 611 is DENIED; it is further
ORDERED that Wayne Chesterfield’s motion to vacate docketed
at ECF Number 614 is DENIED; and it is further
ORDERED that the Smith Defendants’ motion to vacate
docketed at ECF Number 617 is DENIED.
S\
CURTIS V. GÓMEZ
District Judge
Case: 3:11-cv-00041-RAM-GAT Document #: 625 Filed: 01/11/18 Page 13 of 13