) ACTION FOR INJUNCTIVE RELIEF

v ) BREACH OF CONTRACT UNJUST

) ENRICHMENT IMPLIED IN FACT VIRGIN ISLANDS WASTE MANAGEMENT ) CONTRACT ACCOUNT STATED AUTHORITY ROGER MERRITT in his ) AND FAILURE TO FUND AND PAY official capacity as executive director of the ) PER

V I LAW

VIRGIN ISLANDS WASTE MANAGEMENT )

AUTHORITY THE GOVERNMENT OF THE ) VIRGIN ISLANDS and ANTHONY THOMAS ) in his official capacity as commissioner of the ) JURY TRIAL DEMANDED DEPARTMENT OF PROPERTY AND ) PROCUREMENT )

) Defendants )

Cite as 2024 VI Super 9U

MEMORANDUM OPINION AND ORDER

fill This matter comes before the Court on

1 Defendant Government of the Virgin Islands’ Motion To Dismiss (“Motion”), filed

February 22 2021'

2 Plaintiff’s Opposition To The Government Of The Virgin Islands Motion To Dismiss (“Opposition”) filed March 18 2021; and

3 Government of the Virgin Islands Reply To Plaintiff’s Opposition To 0V! 5

Motion To Dismiss (‘ Reply ), filed April 16, 2021

1|2 The Court will grant in part and deny in part the Government of the Virgin Islands (‘ GVI”) Motion as the Court lacks subject matter jurisdiction over GVI with regards to some of the claims

I INTRODUCTION

1|3 On December 21 2020 Plaintiff United Resources Ltd Co (“United”) filed

a Complaint alleging eight (8) counts Count [ Breach of Emergency Hurricane Contract Count II Breach of Oral Contracts Count [II Breach of Implied In Fact Contract, Count [V Unjust Enrichment, Count

V Account Stated Count VI Open Account; Count VII Injunctive Relief; and Count VIII Failure To Fund And Pay United demanded

a jury trial in its Complaint GVI made

a
e sued in its name as well as execute its own contracts 2 GVI claims that United fails to assert an actual claim of action against it as GVI states that it is not

a party to the debris removal contract in any form implied, written, or oral 3 GVI points out that VIWMA’s procurement powers are “autonomous of GVI’s procurement and supply system ”4 GVI also states that there is “no assertion that the alleged debt due pursuant to the debris removal contract arises out of any conduct attributable to GVI” and therefore GVI should be removed as

a party 5 Lastly, GVI states that United did not allege that GVI acted or failed to act in its administrative duty in dispersing payments 6

115 United opposes GVI’s Motion and maintains that the public funds used by VIWMA are controlled by GVI and subject to its oversight 7 United asserts that the establishment of VIWMA did not automatically equate to the suspension of GVI’s procurement and supply processes under 31

V I C §§ 231 251 8 United states that VIWMA s enabling statute is almost void of

a procurement process for which VIWMA must follow ”9 United maintains that the procurement rules outlined in Title 31 are triggered when funds from the local treasury are used and Title 31 makes broad references ofapplicability to authorities and independent instrumentalities, not solely agencies '0 Citing t0 1] S7 and Exhibit

E of its own Complaint United maintains that it is GVI s Department of Finance which has authorization over the funds sent to VIWMA to pay contractors ”"

1l6 GVI replies that 29

V I C

§ 497(d) plainly states that GVI is not responsible for the debts of VIWMA the debts, obligations, assets, contracts, bonds, notes debentures receipts expenditures, accounts, funds, facilities and property of the Authority shall be deemed to be those of the Authority and not to be those of the Government of the Virgin Islands[ ]’ '2 Additionally GVI cites to this Court 8 decision in Nibbs

v Gov t of the VI '3 where this Court stated

‘ [i]mportantly the Government has immunized itself from VlWMA’s debts Because the

1Def 5 Mot I

’ Def 5 Mot

4

3 Def 5 Mot

4

4 Def 5 Mot 4

5 Def 5 Mot S

6 Def 5 Mot 5

7 PI 5 Opp n 2 5

3 P] s Opp

n 5 6

9 Pl s Opp

n

6

'° Pl s Opp n 7

" PI 5 Opp n 8 Exhibit

E is a text exchange wherein VIWMA through Amber Walker notified United that their request for payment had been sent to the Department of Finance

1 29

V [C §497(d) Def 5 Reply 5

'3 Case No ST 2013 CV 00520 2015 VI LEXIS 120 (V 1 Super Ct Sept 30 2015)
MA procurement is unfounded, as VIWMA is “not included in the list of entities that the Commissioner [of the VI Department of Property and Procurement] serves ”'6 GVI points out that the statute governing VIWMA does provide for procurement, giving the Executive Director of VIWMA procurement powers, and that GVI and VIWMA procurement processes are separate and independent of each other '7 GVI concludes by stating that, as GVI is not

a party to any form of contract with United this Court cannot grant the relief that Plaintiff seeks, the case must be dismissed with prej udice '8

[1 LEGAL STANDARD

A Rule 12(b)(1) Motion To Dismiss

118 Virgin Islands Rule of Civil Procedure 12(b)(1) allows

a party to assert by motion the defense that the Court lacks subject matterjurisdiction19 As Rule 12(b)(1) is

a jurisdictional attack, the Court must consider that motion before reaching 12(b)(6) motions 20

A Rule 12(b)(1) motion may be treated either as facial or factual 2' The difference, as explained by the Virgin Islands District Court is that “[o]n

a facial attack

a court must accept the allegations in the complaint as true” whereas with

a factual challenge “the plaintiff’s allegations are not presumed to be true 22 With

a facial attack the Court only looks to the complaint and any documents referenced in or attached to the complaint in

a light most favorable to the plaintiff 2‘ However,

'4 Id at *15 Def 5 Reply 5

'5 Def 5 Reply

6

'6 Def 5 Reply

6

‘7 Def 5 Reply

6

'3 Def 5 Reply 7

'9V]

R CW

P 12(b)(l)

0 Brunn v Dowdye 59

V 1 899 904 (V l 2013) (citing

V I Gov I Hosp

& Health Facdmes Corp v Gov I q/lhe

V I 50

V I 276 279 (V I 2008))( Prior to considering the merits of a matter before it a court is obligated to examine whether it has subject matter jurisdiction over the dispute "); see also In re ( o’estates Trust Fee Ling 837

F Supp 104 105 (E

D Pa 1993) (“When a motion under Rule 12 is based on more than one ground the court should consider the 12(b)(1) challenge first because if it must dismiss the complaint for lack of subject matter jurisdiction, all other defenses and objections become moot )

" Rae v Cheelam 2019 VI SUPER 99U 118 (citing first Raymondv Asscfa Super Ct Civ No ST 15 CV 185 2017

V l LEXIS 153 at *2 (V I Super Nov 8 2017) (unpublished) then Williams v Juan

F Luis Hosp 2019 VI Super 54U 11 3) ( Rule 12(b)(1) motions attacking the court 5 subject matter jurisdiction may either be treated as facial or factual ”)

Wetss v Maccaferrl Inc Civil No 14 46 2016

U

S Dist LEXIS 50436 at *4 (DVI Apr 11 2016) (citing Mortensen v Firs! Fed Sav

& Loan Ass

n 549

F 2d 884 891 892 n 17 (3d Cir 1977)) (unpublished)

3 Hansenv Gov Juan

F LUIS Hosp

& Med Ctr Case No SX 2015 CV 00509 2018

V I LEXIS 87 at *4 5 (V1 Super Ct June 33 2018) (citing James S! Jules v Thompson Civil No SX 2009 CV 00136 2015

V 1 LEXIS 74 at *7 (VI Super Ct June 25 2015) (unpublished)) (unpublished)
119 Virgin Islands Rule of Civil Procedure 12(b)(6) allows

a party to challenge

a pleading for

“failure to state

a claim upon which relief can be granted ”25 To survive

a 12(b)(6) motion, the

plaintiff must provide “a short and plain statement of the claim showing that the pleader is entitled to relief,”26 and [t]he facts alleged in the pleadings, and any inferences drawn therefrom must be

viewed in the light most favorable to the plaintiff ”27 All material allegations in the complaint are taken as true, and the Court must construe all facts in

a light most favorable to the non moving party 23

1110 “Even if

a complaint is ‘vague,’ ‘inartfully drafted,’ ‘a bare bones outline,’ or ‘not

a model

of specificity,’ the complaint may still be adequate so long as it can reasonably be read as supporting

a claim for reliefI ]”29 Further, the purpose of the notice pleading standard is to avoid

‘dismissals of cases based on failure to allege specific facts which, if established, plausibly entitle the pleader to relief ’ 30 Virgin Islands Rule of Civil Procedure 8(a) states that

a claim for relief must contain

a short statement of the grounds for the Court’s jurisdiction, “a short and plain statement of the claim showing that the pleader is entitled to relief because this is

a notice

pleading jurisdiction,” and “a demand for the relief sought, which may include relief in the alternative or different types of relief ”3'

C Unjust Enrichment

1111 In Walters

v Walters,32 the Virgin Islands Supreme Court held that

[T]he elements of the unjust enrichment cause of action require the plaintiff

to prove (I) that the defendant was enriched, (2) that such enrichment was at the

plaintiff’s expense, (3) that the defendant had appreciation or knowledge of the

2‘ Id at *5 (citing Weiss, 2016

L

S Dist LEXIS 50436 at ‘4 then In re Hort on Healthcare Servs Data Breach Ling 846 F 3d 625 632 (3rd Cir 2017)

5 V l R CIV

P 12(b)(6)

V l R Civ

P 8(a)(2)

7 Adams v North West Company (International) Inc 63 VI 427 438 (Super Ct 2015) (citing Benjamm v A10

Ins Co ofPuerIo RICO 56 V1 558 566 (VI 2012))

a L Hem: Inc v Vulcan Materials Co Civ No 206—170 2010 WL 924259 at ‘1 (D V1 Mar 11 2010) (citing Chiistopher v Harbur) 536

U

S 403 406 (2002))

’9 Bastc Servs Inc v Gov I of Virgm Islands 2019 VI 21 11 12 (citing Casaday v Allstate Ins Co , 232

P 3d 1075 1080 (Utah App 2010))

‘0 Basic Servs Inc 1| 10 (citing

V l R CW

P 8 Reporter 5 Note and M1115 Williams v Mapp 67

V l 574 585 (V 1 2017))

3' V1

R CIV

P 8(a)

3 60 V1768(V12014)
1112 This Court stated in Newman

v McKay33 that the party seeking an injunction has the burden of proof and the Court should consider the following four (4) factors “(1) the plaintiff’s likelihood of success on the merits, (2) whether the plaintiff will suffer irreparable harm without injunctive relief, (3) whether granting injunctive relief will harm the defendant more than the plaintiff will be harmed without such relief, and (4) the public interest ”34

E “Failure To Fund And Pay”

1113 United asserts as Count VII]

a claim titled ‘ failure to fund and pay ”35 United cites 31

V I C § 238, which requires government agencies to file with the Commissioner of Property and Procurement detailed estimates of their requirements for equipment and contractual services;36 31

V I C

§ 233, which requires that purchase requests bear

a certification that there is “a sufficient unencumbered apportionment of its appropriation balance, in excess of all unpaid obligations, to defray the amount of such order;”37 3]

V I C § 234, which states that “[n]o purchase shall be made by any department or agency of the government except by written order approved by the Commissioner of Property and Procurement and issued in accordance with section 233 of this title,” as well as provides that violators shall be personally liable and dismissed from employment,38 and 31

V I C § 248 which states in part that “[n]o contract or purchase on behalf of the government shall be made unless the same is authorized by law or is under an appropriation adequate to its fulfillment as well as providing that

a copy of any service contract must be “filed in advance with the Committee on Finance of the Legislature ”39

1114 VIWMA s enabling statute is in Title 29 ‘0 Title 29

V l C

§ 497(d) states in part

The Authority shall be

a non profit independent public body politic and corporate and

a governmental instrumentalin subject, as provided herein, to the control of the aforementioned members acting in their capacity as members of the Board thereof, but it is

a corporation having legal existence and personality separate and apart from the Government and the officers controlling it Subject to section 500e(a) of this chapter the debts obligations assets, contracts, bonds, notes debentures receipts expenditures accounts funds, facilities and property

3‘ 58

V 1 I70 (VI Super Ct 20l3)

1‘ Id at 175

35 Pl 5 Comp! 111] l89 204 3° 3!

v [c §233 3’ 31

v [c §233 38 3|

v [C §234

3" 3|

V l C § 248

4° 29

V l C § 496 is the enabling statute for VIWMA
All property, including funds of the Authority shall be exempt from levy and

sale by virtue of an execution, and no execution or other judicial process shall

issue against the same nor shall any judgment against the Authority be

a charge

or lien upon its property, except, that this subsection shall not apply to or limit

the right of bondholders to pursue any remedies for the enforcement of any

pledge or lien given by the Authority on its rates, fees, revenues, or other income or any other funds 42

[II ANALYSIS

{[16 GVI does not attach any documents to its Motion, so the Court considers only the Complaint and the documents attached to the Complaint GVI has not indicated whether it is attacking the Complaint facially or factually, but it does state that “the pleadings fail to assert

a

factual or legal basis for any alleged debt owed to Plaintiff by GVI ’43 It thus appears that GVI’s attack is factual

1117 United alleges that ‘ GVI is responsible for funding of all legal and financial obligations of

[VIWMA] ’ GVI is ultimately responsible for the payment of all legal and financial obligations

of [VIWMA];” GVI “is responsible for overseeing administering, and making final approval for

payment of the legal and financial obligations of [VIWMA];” and “[t]he Virgin Islands

Department of

Finance (“DF”) is

a department within the GVI responsible for holding, accounting for, and disbursement of funds for payment of the obligations of [VIWMA] 4"

1|l8 GVI is referenced in Count I Breach of Emergency Hurricane Contract, when United

alleges that ‘Plaintiff and [VIWMA] on its behalf and on behalf of the GVI, entered into

a written agreement for Plaintiff to provide services on behalf of [VIWMA] and the GVI in exchange for

Defendant paying Plaintiff for those services” and “GVI beached the agreement by not paying the invoices sent by Plaintiff ”“5 In Count [I Breach of Oral Contracts, United alleges “[t]he GVI

breached the agreements by not paying the invoices sent by Plaintiff” and that United suffered

damages because of this breach 4" In Count Ill Breach of Implied In Fact Contract, United alleges that GVl’s conduct and the circumstances demonstrate an agreement that GVI would pay

4' 29

v I C §497(d)

4 29

v [C §500e(a)

‘3 Def ’5 Mot

4

‘4 Pl 5 Comp] 111120 24 45 Pl sCompl1|1|l18 121

‘6 Pl 5 Comp] 1| I29
ndants have custody control and authority of the funds from the Federal and USVI Government designated to pay Plaintiff for the services performed ’ and that GVI had knowledge ofthese benefits, accepted them were enriched by them, and it would be inequitable to allow GVI to keep them 48 In Count

V Account Stated, United alleges ‘Plaintiff sent [VIWMA] statements of the services provided and of the outstanding balance owed by [VIWMA] and the GVI [VIWMA] and the GVI never objected to the statements sent by Plaintiff until Plaintiff said that it would have to take legal action to collect the amounts due and [VIWMA] and the GVI owes Plaintiff $4 621 092 64 plus interest, on the account ”49

1120 In Count VI Open Account, United alleges “[p]ursuant to oral agreements between Plaintiff and [VIWMA] on its behalf and on behalf of the GVI Plaintiff opened an account for [VIWMA] and the GVI and began providing services to and on behalf of [VIWMA] and the GVI as requested;” ‘ Plaintiffinvoiced [VIWMA] per the open account,” [VIWMA] and the GVI never objected to the invoices sent by Plaintiff until Plaintiff said that it would have to take legal action to collect the amounts due and [VIWMA] and the GVI owes Plaintiff $4 621 092 64 plus interest per Plaintiff’s open account with Defendant ”50 In Count VII Injunctive Relief United only mentions GVI in the prayer for relief “Plaintiff prays that the Court enter an order preliminarily ordering that the GVI and [VIWMA] place $5 621 092 64 from the $15 000 000 00 appropriated by the Virgin Islands Legislature into an escrow account, or in the registry of the Court ”" In Count VIII Failure To

Fund And Pay, United cites to Title 31 and alleges that GVI had

a duty to ensure that VIWMA had sufficient credit and funds prior to entering into

a contract GVI had oversight responsibilities prior to entering into the contract and during the performance of the contract, United performed the work and VIWMA and the GVI owe it money, VIWMA claims it does not have sufficient funds but GVI has sufficient funds, and GVI can allocate funds to VIWMA 52

1121 United attaches to its Complaint as Exhibit A,

a letter from United States Virgin Islands Senator Janelle Sarauw to VIWMA regarding United’s rate dispute, as Exhibit B, the letter from United giving their rate quotes; as Exhibit C, the Emergency Hurricane Contract signed by the Executive Director of VIWMA and United’s Chief Executive Manager; as Exhibit D, an email referencing an auditor inquiry about the rates for the work between VIWMA and United, as Exhibit E,

a text message exchange referencing how much United is owed and referencing

a request for

‘7 Pl 5 Compl 1H] I34 38 4‘ Pl sCompl 1111 143 45 I49 52

‘9 Pl 5 Compl

W 163 66

‘° P] 5 Comp] 111] [63 66

“ Pl sCompl 1] I88

‘ Pl sCompl 1”] 189 204
Exhibit S,

a financial statement from United showing invoiced amounts payments made by VIWMA, and payments outstanding from VIWMA as Exhibit

T emails between United and VIWMA regarding use of barges overdue payment issues and indicating successive attempts by United to reach VIWMA as Exhibit

U an email from interim Executive Director Ann

E Hanley reaffirming VIWMA’s commitment to paying its vendors what they are owed as Exhibit

V Act No 838! ’Bill No 33 0375 of the Virgin Islands Legislature appropriating fifteen million dollars ($15 000 000 00) to VIWMA for outstanding vendor payments to waste haulers as Exhibit

W an email from Keith Richards of the Department of Planning and Natural Resources to United indicating that GVI provided fifteen million dollars ($15 000 000 00) to VIWMA to address prior debts; as Exhibit

X an email from purported counsel for VIWMA to

[ nited alluding to the financial circumstances of GVI and VIWMA and encouraging settlement at

a lump sum over further rate negotiations and finally as Exhibit

Y an offer letter from VIWMA to United offering settlement of the dispute for

a lump sum of one million four hundred fifty six thousand five hundred ten dollars and twenty cents ($1 456 510 20)

1122 Complaint Exhibits

A

B

C

D F, G,

H I J K

L

M

N O,

P

Q R,

S

T

b and

Y from United, including the contract, bills, invoices, negotiations for further work, solicitations for bids bids, discussions over work done and to be done, and so forth, are all between VIWMA and United Further in the Complaint GVI is just simply conflated with VIWMA in the allegations regarding the contract and accounts GVI is plainly not

a party to the contracts, either written, oral, or implied, or any account stated or open account Title 29,

§ 497(d) plainly states that GVI is not responsible for the debts of VIWMA, as this Court in NIbbS again affinned 53 Therefore, Counts I, II, 111 V, and VI must be dismissed against GVI and the Commissioner of the Department of Property and Procurement as this Court holds no jurisdiction over GVI as pertains to those claims

123 However United 5 Complaint Exhibits E, V,

W and

X all implicate GVI as earmarking or providing funds to VIWMA for the purpose of settling its outstanding payments to waste removal contractors The Court now considers whether the remaining claims can survive

a Rule 12(b)(6) motion Taking the evidence and allegations in

a light most favorable to the plaintiff Counts IV, VII, and VIII which involve the equitable claims of unjust enrichment and injunction, as well as the claim that GVI failed to properly fund VIWMA may go forward As United has no legal remedy, since it is not

a party to the contract, it is appropriate that it may pursue equitable remedies 54 For injunctive relief, United has alleged it is owed

a significant sum of money that

53 29

V IC § 497(d) see also Nlbbs 20l5

V l LEXIS 120 at *15 (“Because the Government has immunized itself from VIWMA s debts VIWMA is responsible for paying judgments rendered against it[ ] ) 5‘ Caccmmam

& Rover Corp v Bamn Popular de Puerto Rico, 6]

V l 247 252 (V l 2014) (“Because unjust enrichment is an equitable remedy it like all equitable remedies is inappropriate where a legal remedy is available ) see also Mitsubishi In! I Corp v Cardinal TarIIIe Sales 14

F 3d [507 15l8 (11th Cir I994) (“It is
and using its equipment and resources, that GVI was aware of this benefit and the circumstances

are such that GVI should reimburse United Lastly, United has alleged that GVI failed to follow

Title 31 provisions by contracting with United but failing to ensure there was

a proper allocation

offunds for United’s contract services and by not following the proper protocol as outlined therein While GVI asserts the procurement processes are different, at this stage dismissal would be

premature and the parties should be permitted to brief the issue and offer evidence on this purported

claim

IV CONCLUSION

1125 On December 21 2020, Plaintiff United filed

a Complaint alleging eight (8) counts against VIWMA and GVI, as well as against the Executive Director of VIWMA and the Commissioner

of the Department of Property and Procurement of GVI On February 22 2021 GVI filed its motion seeking to dismiss the counts against it on the basis of Virgin Islands Rule of Civil

Procedure 12(b)(1) and Rule 12(b)(6) Counts I II III

V and VI will be dismissed as they relate

to contracts and accounts that do not include GVI as

a party but rather are between United and

VIWMA However under the notice pleading standard

L nited has implicated GVI in Counts IV,

VII, and VIII, which may proceed at this stage

Accordingly, it is hereby

ORDERED that Defendant Government of the Virgin Islands Motion To Dismiss filed

February 22 2021 is GRANTED with respect to Counts I II III

V and VI and is DENIED

with respect to Counts IV, VII, and VIII and it further

ORDERED that Counts I, II, 111,

V and VI are DISMISSED with prejudice against

Defendants Government of the Virgin Islands and Anthony Thomas in his official capacity as

Commissioner of the Department of Property and Procurement; and it is further

axiomatic that equitable relief is only available where there is no adequate remedy at law[ ]’ )
DATED February g» 2024 mm ?)MgE

DENISE

M FRANCOIS

Judge of the Superior Court of the Virgin Islands

ATTEST

TAMARA CHARLES

Clerk of the Court

BY LATOYA

WCAMACHO

#7 Court Clerk Supervisor

2 ZZIZDZV
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

District of St. Thomas/St. John

United Resources LTD. CO.,

 Plaintiff

vs.

Virgin Islands Waste Management Authority, 

Roger Merritt, in his official capacity as 

executive director of Virgin Islands Waste 

Management Authority, THE GOVERNMENT 

OF THE VIRGIN ISLANDS and ANTHONY 

THOMAS, in his official capacity as 

commissioner of the Department of Property 

and Procurement

 Defendants. 

Case Number: ST-2020-CV-00493

Action: Debt And Breach Of Contract

NOTICE of ENTRY

of

Order

To: Teeluck Persad, Esq. Robert V. Goldsmith, III, Esq.

Clive C. Rivers, Esq. Sheena Conway, Esq.

Please take notice that on February 29, 2024

a(n) Order Denying Defendant’s Motion To Dismiss As Moot & 

Memorandum Opinion And Order

dated February 23, 2024 was/were entered

by the Clerk in the above-titled matter.

Dated: February 29, 2024 Tamara Charles

Clerk of the Court

By:

Elizabeth A. David

Chief Deputy Clerk