Opinion
Civ. No. 1995-027
March 25, 2002
Thomas Alkon, Esq., St. Croix, U.S.V.I., For the plaintiffs,
Paula D. Norkaitis, Esq., St. Thomas, U.S.V.I., For defendants Bluebeard's Castle and Hilltop Villa Association,
James M. Derr, Esq., St. Thomas, U.S.V.I., For defendants Graves, Sullivan and Cavanaugh.
Ivan A. Guzman, Esq., St. Croix, U.S.V.I., For third-party defendants Buckalews.
MEMORANDUM
Bluebeard's Castle Hilltop Villas Condominium Association ["Association"] and Bluebeard's Castle, Inc. ["Bluebeard's Castle"] have moved for summary judgment on two grounds. First, the Association argues that this Court is without subject matter jurisdiction because the plaintiffs, Donna O. and James A. [collectively "plaintiffs"] and the Association are both residents of Florida, and thus there is no diversity between them. Second, Bluebeard's Castle contends that this Court must dismiss the entire action because the Association is an indispensable party and Bluebeard's Castle would be prejudiced if the Court dismissed only the Association. Plaintiffs oppose defendants' motion or, in the alternative, argue that the Court should only dismiss the Association. For the reasons stated below, I will grant the defendants' motion in party and deny it in part.
I. FACTS
On September 10, 1994, the plaintiffs agree to housesit condominium unit 226 on behalf of the owners, third-party defendants Gerald and Elizabeth Buckalew [collectively "Buckalews"]. Later that evening as the plaintiffs sat down to watch television, two masked intruders entered the condo through the sliding glass door the plaintiffs had opened to let the Buckalews' cats onto the balcony. The intruders bound, assaulted, and robbed the plaintiffs and forcibly raped plaintiff Donna O. Plaintiffs brought a negligence suit against Bluebeard's Castle, the Association, the corporate officers and the Buckalews on the ground that these parties knew or should have known of similar prior criminal acts on the property, but failed to implement the necessary security measures to prevent such occurrences. This Court has diversity jurisdiction under section 22(a) of the Revised Organic Act of 1954 and 28 U.S.C. § 1332.
48 U.S.C. § 1612(a). The complete Revised Organic Act of 1954 is found at 48 U.S.C. § 1541-1645 (1995 Supp. 2001), reprinted in V.I. CODE ANN. 73-177, Historical Documents, Organic Acts, and U.S. Constitution (1995 Supp. 2001) (preceding V.I. CODE ANN. tit. 1).
II. DISCUSSION A. Summary Judgment Standard
Summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue respecting any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Sharpe v. West Indian Co., 118 F. Supp.2d 646, 648 (D.V.I. 2000). The nonmoving party may not rest on mere allegations or denials, but must establish by specific facts that there is a genuine issue for trial from which a reasonable juror could find for the nonmovant. See Saldana v. Kmart Corp., 42 V.I. 358, 360-61, 84 F. Supp.2d 629, 631-32 (D.V.I. 1999), aff'd in part and rev'd in part, 260 F.3d 228 (3d Cir. 2001). Only evidence admissible at trial shall be considered and the Court must draw all reasonable inferences therefrom in favor of the nonmovant. See id.
B. Plaintiffs and the Association Are Not Diverse Parties
As this Court has previously noted "an association is not a separate legal entity for purposes of citizenship but rather is a citizen of every state or territory in which one of its members is a citizen. See Guerrero v. Bluebeard's Castle Hotel, Inc., 37 V.I. 344, 982 F. Supp. 343, 347 (D.V.I. 1997). In their complaint, the plaintiffs stated that they were citizens and residents of Florida. (Compl. ¶ 1.) The Association has now come forward and established that some of its members are also residents of Florida. (Def.'s Mem. of Law in Supp. of Mot. for Summ. J., Ex. 5-9.) Accordingly, as no diversity exists between the plaintiffs and the Association, the Association must be dismissed from this action.
As this Court must dismiss the Association from this action, Bluebeard's Castle contends that the Court must also dismiss it from this action as the Association is an indispensable party and to proceed without the Association would be unjust. This argument is unconvincing. First, although Bluebeard's Castle attempts to portray itself as an inconsequential party, the complaint specifically alleges that Bluebeard's Castle owned the premises upon which the Association was located and that it allegedly knew or should have known of the prior criminal acts upon the property. Thus, it is entirely reasonable to conclude that, absent the Association, the plaintiffs could receive complete relief. See FED. R. CIV. P. 19(a). Second, this Court faced a similar argument by Bluebeard's Castle in Guerrero, a case involving almost identical facts and parties. See Guerrero, 982 F. Supp. at 347-48. Although this Court did not specifically address Bluebeard's Castle's Rule 19 argument in Guerrero, I noted that "joint tortfeasors are not considered indispensable parties who must be joined in a lawsuit." See id. at 348 n. 4. Therefore, as it can be reasonably inferred that I did not find the Association to be an indispensable party in Guerrero and Bluebeard's Castle has not convinced me to hold otherwise, I will deny Bluebeard's Castle's motion for summary judgment. Finally, in the event that I found the Association not to be an indispensable party, the Association requests that the Court utilize its authority under Rule 21 to condition a dismissal to require the plaintiffs "to pay the Association's costs for defending this suit." (Defs.' Reply in Supp. of Mot. for Summ. J. at 5-6.) I decline to do so as the Association is as much at fault as the plaintiffs for having a non-diverse party before this Court. The Association was a party to and had notice of my 1997 decision in Guerrero dismissing it from that case on the ground of lack of diversity. The Association clearly was on notice of the possibility that the parties to this action, which commenced in 1995, were also not diverse. Having sat on its rights for five years, the Association cannot now claim that it has been harmed by this jurisdictional defect. Accordingly, I will deny its request for costs.
III. CONCLUSION
No diversity exists between the plaintiffs and the Association and, therefore, the Association must be dismissed from this action. As I find, however, that the Association is not an indispensable party, I will deny Bluebeard's Castle's motion for summary judgment. Finally, the Association sat on its rights for five years before bringing its present motion and is, therefore, not entitled to costs.
ORDER
For the reasons set forth in the foregoing Memorandum of even date, it is hereby
ORDERED that defendant Association's motion for summary judgment (Docket No. 90) is GRANTED; it is further
ORDERED that defendant Bluebeard's Castle's motion for summary judgment (Docket No. 90) is DENIED; and it is further
ORDERED that defendant Association's requests for costs is DENIED.