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Case: 3:13-cv-00006-CVG-RM Document #: 71 Filed: 07/30/13 Page 1 of 29

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN

Plaintiffs,
v.


HAROLD ALEXANDER THOMAS, III; and
HAMILTON BRYAN,



JOSEPH BONANNO; WEST ESSEX MANAGEMENT
CORPORATION; TURN AROUND ENTERPRISES,
LLC; LIEUTENANT GOVERNOR OF THE VIRGIN
ISLANDS, GREGORY R. FRANCIS, in his
official capacity,


Defendants.



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For the defendants Joseph Bonanno; West Essex Management
Corporation; and Turn Around Enterprises, LLC

Pro se

Pro se


ATTORNEYS:

Harold Alexander Thomas, III


Hamilton Bryan


Jennifer Jones, Esq.
Law Offices of Jennifer Jones
St. Thomas, VI


Vincent F. Frazer, Attorney General
Tamika Archer, AAG
Virgin Islands Department of Justice
St. Thomas, VI



GÓMEZ, C.J.

to dismiss this matter.

MEMORANDUM OPINION



For the defendant Lieutenant Governor of the Virgin Islands
Gregory R. Francis

Before the Court are the several motions of the defendants

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Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
Page 2
I.

FACTUAL AND PROCEDURAL BACKGROUND

This action arises out of the tax sale of certain real

property known as “No. 5 Estate Sans Souci and Guinea Gut, No. 9
& 10 Cruz Bay Quarter, St. John, United States Virgin Islands.”
(the “Property”).

The Property was originally owned by Julius A. Thomas and
Harold W. Thomas. Upon their death, it became the subject of a
probate action in the Superior Court of the Virgin Islands (the
“Superior Court”), in the case captioned Thomas ex rel. Thomas
v. Thomas ex rel. Thomas, Civil No. 874/86. On October 22, 1988,
the Superior Court granted undivided, fractional interests in
the Property to the decedents’ heirs, in the manner detailed
below:

Owner

Rudolph Gleston Thomas
Isma Lorensina Thomas
Harold Alexander Thomas
Woodrow Lloyd Thomas
Leon Harold Thomas
Theodore Alvin Thomas
Olive Hyacinth Thomas
Effie Aguita Thomas
Terrence Therbaites Thomas
Sam Alfred Hamilton Thomas
Estate of Clyde Alexander Thomas
Elba Jeanine Zessnett Thomas
Dorothy Patricia Thomas
Conrad Alberto Thomas, Jr.
Lucille Ann Thomas
Estate of Thyra Thomas Beretta



Ownership Interest


2/31
2/31
2/31
2/31
2/31
2/31
2/31
2/31
2/31
2/31
2/31
2/31
2/31
1/31
2/31
2/31

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Harold Alexander Thomas is the father of Harold Alexander

The plaintiff Hamilton Bryan (“Bryan”) was conveyed an

Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
Page 3

Thomas, III (“Thomas”), the plaintiff in this case. Upon his
father’s death, Thomas inherited an undivided 2/93 interest in
the Property.1 Thomas also acquired Rudolph Gleston Thomas’s
undivided 2/31 interest in the Property. (Compl. ¶ 1.)

undivided 2/93 interest in the Property from Phyllis Rosalind
Thomas, who in turn inherited this interest from Clyde Alexander
Thomas.

Lieutenant Governor of the Virgin Islands (the “Lieutenant
Governor”) sold the Property at a tax sale for delinquent taxes.2
The purchaser of the Property was the defendant Joseph Bonanno
(“Bonanno”). Bonanno allegedly assigned his interest in the
Property to the defendants West Essex Management Corporation
(“West Essex”) and Turn Around Enterprises, LLC (“Turn Around”).

Thomas and Bryan initiated this action on January 23, 2013.
Count One of the Complaint seeks to set aside the January 25,
2012, tax sale. Count Two of the Complaint asserts a claim for
slander of title.


On January 25, 2012, the defendant Gregory R. Francis, the

1 Thomas alleges that he had several siblings, which is why he received
only a fraction of his father’s fractional interest. Thomas does not identify
his siblings or indicate whether they still have any ownership interest in
the Property.
2 According to the Complaint, property taxes had not been paid on the

Property from 1991 to 2008.

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Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
Page 4

On January 25, 2013, Thomas and Bryan attempted to effect

service on the defendant Gregory R. Francis, Lieutenant Governor
of the Virgin Islands (the “Lieutenant Governor”) by delivering
a copy of the summons and the complaint to a secretary in his
office.

On January 28, 2013, Thomas and Bryan attempted to effect

service on the defendant Joseph Bonanno (“Bonanno”) by mailing a
copy of the summons and the complaint to a United States Post
Office Box in St. John. Thomas and Bryan also mailed a copy of
the summons and the complaint to Bonanno at his residence in St.
Thomas. On January 29, 2013, a copy of the summons and complaint
was left at the door of Bonanno’s residence. The process server
averred that “two groundskeepers” witnessed him leaving the
process at Bonanno’s doorstep. (ECF Nos. 14, 15, 17.)

On February 4, 2013, Thomas and Bryan attempted to effect

service on the defendants West Essex Management Corporation
(“West Essex”) and Turn Around Enterprises, LLC (“Turn Around”)
by leaving a copy of the summons and the complaint “on the
business door” of the companies’ shared office in New Jersey.
(ECF Nos. 19, 21, Returns of Service on West Essex and Turn
Around.)

Thereafter, on March 1, 2013, Thomas and Bryan effected

personal service of a copy of the summons and complaint on
Roxann McMahon, the registered agent for the receipt of service

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Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
Page 5
of process for Turn Around. (ECF No. 46, Return of Service on
Turn Around.)

On March 4, 2013, Thomas and Bryan attempted to effect
service on West Essex by mailing a copy of the summons and
complaint to Harry Vasquez and Anthony T. Colasanti, the
registered agents of West Essex. (ECF Nos. 44, 45, Returns of
Service on West Essex.)

On May 15, 2013, the Clerk of the Court entered default

against the Lieutenant Governor.

Bonanno, West Essex, and Turn Around now move to dismiss
this matter for want of sufficient service of process, or, in
the alternative, for failure to join indispensable parties and
for failing to state a claim for which relief may be granted.
The Lieutenant Governor moves to vacate the entry of default and
joins in his codefendants motions to dismiss.

II. DISCUSSION

A. Service of Process

A motion under Federal Rule of Civil Procedure 12(b)(5) is
the appropriate means for challenging the manner or sufficiency
of service of process. Chilicky v. Schweiker, 796 F.2d 1131,
1136 (9th Cir. 1986), rev’d on other grounds, 487 U.S. 412
(1988); Dimensional Commc’ns, Inc. v. OZ Optics Ltd., 218 F.
Supp. 2d 653, 655 (D.N.J. 2002). The plaintiff bears the burden
of establishing that service of process has been accomplished in

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Federal Rule of Civil Procedure 12(b)(7) permits the

Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
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a manner that complies with Federal Rule of Civil Procedure 4.
Montgomery, Zukerman, Davis, Inc. v. Diepenbrock, 698 F. Supp.
1453, 1459 (S.D. Ind. 1988); see also Provident Nat’l Bank v.
California Fed. Sav. & Loan Ass’n, 819 F.2d 434, 437 (3d Cir.
1987).
B. Failure to Join Indispensable Party

dismissal of a complaint for “failure to join a party under Rule
19.” Fed. R. Civ. P. 12(b)(7). Federal Rule of Civil Procedure
19(a)(1) (“Rule 19(a)(1)”) requires the joinder of certain
parties under specific, enumerated circumstances. Gen.
Refractories Co. v. First State Ins. Co., 500 F.3d 306, 312 (3d
Cir. 2007). In pertinent part, Rule 19(a)(1) provides:
A person who is subject to service of
process and whose joinder will not deprive
the court of subject-matter jurisdiction
must be joined as a party if:


(A) in that person’s absence, the
complete

court
relief among existing parties; or

cannot

accord


(B) that person claims an interest
relating to the subject of the
action and is so situated that
disposing of the action in the
person’s absence may:
(i) as a practical matter impair
person’s
the

the
protect



impede
or
ability
to
interest; or


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Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
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(ii) leave

existing

an
incurring
or

party
subject to a substantial risk
double,
of
multiple,
otherwise
inconsistent
obligations
because of the interest.


Fed. R. Civ. P. 19(a)(1). The party requesting joinder of a
necessary party need only establish that one of the grounds
under Rule 19(a)(1) exists. Whyham v. Piper Aircraft Corp., 96
F.R.D. 557, 560 (M.D. Pa. 1982); see also Koppers Co. v. Aetna
Cas. & Sur. Co., 158 F.3d 170, 175 (3d Cir. 1998) (“As Rule
19(a) is stated in the disjunctive, if either subsection is
satisfied, the absent party is a necessary party that should be
joined if possible.”) In the event that a plaintiff has not
originally joined a necessary party, ordinarily, the proper
remedy is to order joinder. Fed. R. Civ. P. 19(a)(2). If,
however, a necessary party cannot be feasibly joined, a district
court may, in its discretion, order that the case be dismissed.
Janney Montgomery Scott, Inc. v. Shepard Niles, Inc., 11 F.3d
399, 405 (3d Cir. 1993); Bank of Am. Nat’l Trust & Sav. Ass’n v.
Hotel Rittenhouse Assocs., 844 F.2d 1050, 1053–54 (3d Cir.
1988).
C. Failure to State a Claim for Which Relief May be Granted

When reviewing a motion to dismiss brought pursuant to

Federal Rule of Civil Procedure 12(b)(6), the Court construes
the complaint “in the light most favorable to the plaintiff.” In

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A complaint may be dismissed for “failure to state a claim

Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
Page 8
re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir.
2010). The Court must accept as true all of the factual
allegations contained in the complaint and draw all reasonable
inferences in favor of the non-moving party. Alston v. Parker,
363 F.3d 229, 233 (3d Cir. 2004).

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
“[A] plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic v. Twombly, 550 U.S. 544, 555
(2007).

(2007), set forth the “plausibility” standard for overcoming a
motion to dismiss and refined this approach in Ashcroft v.
Iqbal, 556 U.S. 662 (2009). The plausibility standard requires
the complaint to allege “enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 570. A
complaint satisfies the plausibility standard when the factual
pleadings “allow[] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This standard
requires showing “more than a sheer possibility that a defendant
has acted unlawfully.” Id. A complaint which pleads facts

The Supreme Court in Bell Atlantic v. Twombly, 550 U.S. 544

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Civil No. 2013–06
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“ ‘merely consistent with’ a defendant’s liability, . . . ‘stops
short of the line between possibility and plausibility of
“entitlement of relief.” ’ ” Id. (citing Twombly, 550 U.S. at
557).

plausibility standard, the Court must take the following three
steps3:

To determine the sufficiency of a complaint under the

First, the court must “tak[e] note of the
elements a plaintiff must plead to state a
claim.” Second, the court should identify
allegations that, “because they are no more
than conclusions, are not entitled to the
assumption of truth.” Finally, “where there
are well-pleaded factual allegations, a
court should assume their veracity and then
determine whether they plausibly give rise
to an entitlement for relief.


Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)
(quoting Iqbal, 556 U.S. at 674, 679).
III. ANALYSIS

Service on Bonanno

1.
Bonanno, contends that this action should be dismissed as

A. Service of Process


to him because Thomas and Bryan have failed to effect timely and
sufficient service of process.



3 Iqbal describes the process as a “two-pronged approach” but the
Supreme Court took note of the elements a plaintiff must plead to state a
claim before proceeding to its two-step approach. Accordingly, the Third
Circuit has deemed the process a three step approach. See Santiago, 629 F.3d
at 130.

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service to be made upon an individual in one of four ways:

Federal Rule of Civil Procedure 4(e) (“Rule 4(e)”) permits

(1) [by] following state law for serving a
summons in an action brought in courts
of general jurisdiction in the state
where the district court is located or
where service is made; or


(2) [by] doing any of the following:



(A) delivering a copy of the summons
and of the complaint to the
individual personally;

(B) leaving a copy of each at the
individual’s dwelling or usual
place of abode with someone of
suitable age and discretion who
resides there; or

(C) delivering a copy of each to an
agent authorized by appointment or
by law to receive service of
process.

Virgin Islands law adopts the Federal Rules with respect to


Fed. R. Civ. P. 4(e).

service of process. In addition, Virgin Islands law permits
service to be made by publication in certain exceptional cases.
V.I. CODE ANN. tit. 5, § 112(a). To effect service by publication,
a plaintiff must first obtain a court’s approval. Id. To do so,
a plaintiff must first show, by affidavit, that service could
not be effected in accordance with Rule 4(e)(2) and the
defendant could not be located within the Virgin Islands. Id.
Even then, authorization to serve by publication will only issue

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Thomas v. Bonanno
Civil No. 2013–06
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in six statutorily enumerated circumstances. Id. at § 112(a)(1)–
(6).

The record reflects that Thomas and Bryan mailed a copy of
the summons and the complaint to a Post Office Box in St. John
allegedly maintained by Bonanno and to Bonanno’s alleged
residence. A copy of the summons and complaint was also left at
the door of Bonanno’s alleged residence. Significantly, however,
there is nothing in the record to suggest that the process left
at Bonanno’s residence was left with “someone of suitable age
and discretion who resides there . . . .” Fed. R. Civ. P.
4(e)(2)(C). Instead, the process server averred that “two
groundskeepers . . . witnessed” him leaving the process at
Bonanno’s residence. (ECF No. 17.)

Thomas and Bryan’s attempts at service do not comport with
the plain terms of Rule 4(e)(2) or Virgin Islands law. Although
it is clear that Bonanno has since become apprised of this
action, “actual notice is not a substitute for proper service.”
In re City of Phila. Litig., 123 F.R.D. 515, 519 (E.D. Pa. 1988)
(citing Davis-Wilson v. Hilton Hotels Corp., 106 F.R.D. 505, 508
(E.D. La. 1985) (“The mere fact that a defendant received actual
notice is not sufficient if there has not been compliance with
the plain requirements of the Federal Rules of Civil Procedure,
Rule 4.”); Bryant v. Rohr Indus., Inc., 116 F.R.D. 530, 533
(W.D. Wash. 1987) (“[I]t is clear that the defendant . . . is

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aware of the plaintiff’s lawsuit. Nevertheless, ignorance of the
law is no excuse, and plaintiff has not shown good cause for his
failure to perfect service.”); See also Stranahan Gear v. N.L.
Indus., Inc., 800 F.2d 53, 56–57 (3d Cir. 1987) (“ ‘When there
is actual notice, every technical violation of the rule or
failure of strict compliance may not invalidate the service of
process. But the rules are there to be followed and plain
requirements for the means of effecting service of process may
not be ignored.’ ” (quoting Amrco, Inc. v. Penrod-Stauffer Bldg.
Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984))).
Having found the attempt at service on Bonanno

insufficient, the Court must next consider whether Thomas and
Bryan ought to be given an opportunity to cure their deficient
service. Federal Rule of Civil Procedure 4(m) (“Rule 4(m)”)
provides:

(m) Time Limit for Service. If a defendant
is not served within 120 days after the
complaint is filed, the court—on motion or
on its own after notice to the plaintiff—
must dismiss the action without prejudice
against that defendant or order that service
be made within a specified time. But if the
plaintiff shows good cause for the failure,
the court must extend the time for service
for an appropriate period . . . .

Fed. R. Civ. P. 4(m). At present, it is some 169 days since the
initiation of this action. Thus, the time-period for effecting
service under Rule 4(m) has elapsed.



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Yet, the Third Circuit has read Rule 4(m) “to require a

court to extend time if good cause is shown and to allow a court
discretion to dismiss or extend time absent a showing of good
cause.” Petrucelli v. Bohringer, 46 F.3d 1298, 1305 (3d Cir.
1995). In exercising its discretion to extend a service
deadline, absent good cause, a court must consider four factors:
“(1) the reasonableness of the plaintiff's efforts to effect
service; (2) prejudice to the defendant because of untimely
service; (3) whether the plaintiff has moved for an enlargement
of time; and (4) whether the statute of limitations will bar the
plaintiff's claims if the action is dismissed.” Mathies v.
Silver, 450 F. App'x 219, 222 (3d Cir. 2011).
In Mathies v. Silver, 450 Fed. App’x 219 (3d Cir. 2011),

Stephen Mathies (“Mathies”), an inmate, filed a Bivens action
against a prison physician, Seth Silver (“Dr. Silver”). Mathies
failed to serve Silver for more than six years and never
properly served the United States. Id. at 220. On appeal, the
Third Circuit affirmed the district court’s dismissal of the
action for want of timely service after “consider[ing] several
factors, including whether the statute of limitations would
foreclose the plaintiff from re-filing, whether the defendant
attempted to evade service, and any other relevant equitable
considerations.” Id. (citing Petrucelli v. Bohringer &
Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995) (“The Advisory

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Thomas v. Bonanno
Civil No. 2013–06
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Committee note provides some guidance as to what factors the
district court should consider when deciding to exercise its
discretion to extend time for service . . . [a]lthough the list
is not exhaustive, the Committee explained that ‘[r]elief may be
justified, for example, if the applicable statute of limitations
would bar the refiled action, or if the defendant is evading
service or conceals a defect in attempted service.’ ”). The
Third Circuit noted that the failure to serve the defendants was
attributable to “both Mathies and his attorney . . . .” Id. The
court further noted that this had the effect of tolling the
statute of limitations “for six years.” Id. Thus, the Third
Circuit ultimately agreed with the district court that
it would be unfair to impose upon Dr. Silver
further delays so that Mathies could
complete service, as well as the burden of
defending a claim that Mathies did not bring
to
until—accepting
arguendo Mathies' position that his claim
accrued in April 2003—seven years after the
statute of limitations began to run.


Id. Accordingly, the Third Circuit concluded that the district
court did not abuse its discretion in holding “that fairness to
the defendant in this case outweighed Mathies’ interest in
continuing the litigation.” Id. at 221.

Silver's

attention

In determining whether the time period for effecting

service should be extended, the Court will apply the Mathies
factors as outlined above. First, Thomas and Bryan’s initial

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Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
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attempts at service were not entirely reasonable. Although they
made an effort to serve Bonanno in a timely manner, the form of
that service was insufficient under Rule 4(e). Rule 4(e) simply
does not countenance service on an individual by mail, or by
leaving process on a doorstep. The touchstone of service on an
individual is that it must be effected on some person--be it the
defendant himself, someone at the defendant’s residence, or the
defendant’s agent. Thomas’s and Bryan’s failure to effect
service on Bonanno in compliance with Rule 4(e) counsels in
favor of dismissal.

Although Thomas’s and Bryan’s attempts at service were
unreasonable, Bonanno has not identified any prejudice that
might have arisen from the delay. This action was commenced not
quite six months ago. Moreover, it is clear from his filings
that Bonanno has since received notice of Thomas’s and Bryan’s
claims. The lack of any identifiable prejudice thus counsels
against dismissal.

Thomas and Bonanno have not sought an extension of time in

which to effect service. Instead, they maintain that their
previous efforts were sufficient. The third Mathies factor thus
counsels in favor of dismissal.

At the same time, Thomas and Bryan seek to undo a land sale
which occurred in 2012. In the Virgin Islands, “actions for the
recovery of real property” are governed by a twenty-year statute

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Thomas v. Bonanno
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of limitations. V.I. CODE ANN. tit. 5, § 31. There is thus no
concern that the statute of limitations would prevent Thomas and
Bryan from refiling their complaint in the event it was
dismissed for want of timely service. Cf. Petrucelli, 46 F.3d at
1305 (3d Cir. 1995) (holding that the time period for effecting
service may be extended “if the applicable statute of
limitations would bar the refiled action . . . .” (internal
citation and quotation marks omitted)). This factor is thus
neutral.

In sum, the first and third Mathies factors counsel in

favor of dismissal. However, the prejudice to Bonanno appears to
be minimal, at best. Moreover, given the lengthy statute of
limitations, Thomas and Bryan could easily refile this action in
the event of a dismissal. The Court thus finds that it would not
be unfair to Bonanno, given the relatively young stage of this
litigation and his current notice of it, to permit Thomas and
Bryan some additional time in which to attempt to effect
service.

2.

West Essex and Turn Around also argue that Thomas and Bryan
failed to serve them properly.

for corporations to be served in the following ways:

Federal Rule of Civil Procedure 4(h) (“Rule 4(h)”) allows

Service on West Essex and Turn Around

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Thomas v. Bonanno
Civil No. 2013–06
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(A) in the manner prescribed by Rule

4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and
complaint to an officer, a managing or
general agent, or any other agent
authorized by appointment or by law to
receive service of process and--if the
agent is one authorized by statute and
the
also
mailing a copy of each to the defendant

requires--by

statute

so



Fed. R. Civ. P. 4(h)(1). As noted above, Virgin Islands law
adopts the Rule 4 requirements for service of process, and also
permits service by publication in certain limited circumstances.
Virgin Islands law does not require service on a registered
corporate agent to be mailed to the defendant in addition to
serving the agent. V.I. CODE ANN. tit. 13, § 51.

i.

Service on Turn Around


With respect to Turn Around, the return of service includes
an affidavit of the process server, who avers that he personally
served Roxann McMahon, Turn Around’s registered agent. A signed
return of service generally serves as prima facie evidence
giving rise to a (rebuttable) presumption of valid service. See
Blair v. City of Worcester, 522 F.3d 105, 111 (1st Cir. 2008);
Homer v. Jones–Rey, 415 F.3d 748, 752 (7th Cir. 2005); see also
In re Graves, 33 F.3d 242, 251 n.16 (3d Cir. 1994) (noting that
the court “give[s] weight to an objective indication that
process has been served”). This presumption may be rebutted,
however, if the defendant produces affidavits or other competent

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Thomas v. Bonanno
Civil No. 2013–06
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evidence showing that he was never properly served. See, e.g.,
Blair, 522 F.3d at 112 (holding that the defendant’s affidavits
were sufficient to rebut the prima facie presumption created by
a return of service); Ellibee v. Leonard, 226 F. App’x 351, 356
(5th Cir. 2007) (holding that the defendants’ averments were
sufficient to rebut the information in a signed return of
service.)

of the process server. Instead, it merely argues that service
was insufficient because Thomas and Bryan first mailed process
to Turn Around’s New Jersey office. However, this ignores the
fact that Thomas and Bryan subsequently effected personal
service on Turn Around’s registered agent. This is all that is
required under Rule 4(h)(1)(B). Turn Around’s agent was served
on March 1, 2013, well within the 120-day time period allowed by
Rule 4(m). Accordingly, Turn Around’s motion to dismiss for
insufficient service of process will be denied.

Here, Turn Around offers no evidence to rebut the averments

ii. West Essex

With respect to West Essex, Thomas’s and Bryan’s attempts

at service took something of a different tack. The record
reflects that they mailed process to West Essex’s New Jersey
Offices, and to West Essex’s registered agents. (ECF Nos. 19, 21
44, 45.)

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Here, Thomas’s and Bryan’s attempts at service failed to

As the time-period for effecting service has now expired,

Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
Page 19

This service does not comport with the requirements of Rule
4(h) or Virgin Islands law. Service on a corporation through its
agent can only be achieved by serving the agent personally. See
Fed. R. Civ. P. 4(h)(1)(B).

the Court must again consider whether Thomas and Bryan should be
granted additional time to serve West Essex. As noted above, the
Court must consider four factors: In exercising its discretion
to extend a service deadline, absent good cause, a court must
consider four factors: “(1) the reasonableness of the
plaintiff's efforts to effect service; (2) prejudice to the
defendant because of untimely service; (3) whether the plaintiff
has moved for an enlargement of time; and (4) whether the
statute of limitations will bar the plaintiff's claims if the
action is dismissed.” Mathies, 450 F. App'x at 222.

comply with the unambiguous terms of Rule 4(h). The
unreasonableness of their attempts at service are only further
highlighted by the fact that they successfully served Turn
Around. As with Rule 4(e), Rule 4(h) requires process to be
delivered directly to some individual. Thomas and Bryan failed
to do so with respect to West Essex. The first factor thus
counsels in favor of dismissal.

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At the same time, however, the prejudice to West Essex

Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
Page 20

appears to be minimal, at best. West Essex is now aware of the
action, which was initiated less than six months ago. This
factor thus counsels in favor of denying the motion to dismiss.

Thomas and Bryan never requested any extension of time in
which to effect service. Instead, they maintain that their prior
efforts were adequate. Having found that their initial attempts
at service were insufficient, the Court must conclude that this
factor counsels in favor of dismissal.

Lastly, as discussed above, it does not appear that the
applicable statute of limitations would bar the refilling of
Thomas’s and Bryan’s claims. This factor is thus neutral.

“it would be unfair to impose . . . further delays,” Mathies,
450 F. App'x at 220, on West Essex by permitting Thomas and
Bryan additional time in which to attempt to effect service.
Although Thomas’s and Bryan’s initial attempts at service were
unreasonable and they failed to request an extension of time,
the prejudice caused by their failure is minimal. As noted
above, West Essex has notice of this action and it has been
pending for only a relatively brief time. Accordingly, Thomas
and Bryan will be granted additional in which to effect service
on West Essex.

In sum, the Court is not convinced that, at this juncture,

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Entry of Default against Lieutenant Governor

Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
Page 21

3.
The Lieutenant Governor argues that the default entered

against him in this matter should be vacated because he was not
properly served.

“The court may set aside an entry of default for good
cause . . . .” Fed. R. Civ. P. 55(c). Motions to set aside
default should be construed liberally, with all doubts resolved
in favor of the movant. Meduniv v. Lederer, 533 F.2d 891, 894
(3d Cir. 1976). “A default will be set aside if it was not
properly entered or if the party seeking default failed to meet
a requirement of the rule.” Mettle v. First Union Nat’l Bank,
279 F. Supp. 2d 598, 601 (D.N.J. 2003) (citing Grand Entm’t
Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 493 (3d Cir.
1993) (where default judgment was vacated for improper service);
Gold Kist, Inc. v. Lauringburg Oil Co., Inc., 756 F.2d 14, 19
(3d Cir. 1985) (holding that a default judgment should be set
aside for improper service). For example, in Mettle v. First
Union Nat’l Bank, 279 F. Supp. 2d 598 (D.N.J. 2003), the
district court set aside the clerk’s entry of default when the
plaintiff’s attempt at service was untimely and he failed to
personally serve an officer, manager, or other agent of the
defendant corporation, as required by Rule 4(h).

It is well-settled that “a suit against a state official in
his or her official capacity is not a suit against the official

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Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
Page 22
but rather is a suit against the official’s office. As such, it
is no different from a suit against the State itself.” Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (citing
Brandon v. Holt, 469 U.S. 464, 471 (1985); Kentucky v. Graham,
473 U.S. 159, 165–66 (1985); Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 689 (1978)) (internal citations omitted). Under
Federal Rule of Civil Procedure 4(j)(2), service on a state
government or agency may be effected in one of two ways: “(A) by
delivering a copy of the summons and of the complaint to [the
state’s] chief executive officer; or (B) serving a copy of each
in the manner prescribed by that state’s law for serving a
summons or like process on such a defendant.” Fed. R. Civ. P.
4(j)(2). Virgin Islands law does not admit of any means of
serving the government except by serving the chief executive
officer--that is, the Governor of the Virgin Islands.

Here, the record reflects that Thomas and Bryan served an
agent of the Lieutenant Governor. While the Lieutenant Governor
is the named defendant, he is being sued in his official
capacity and as such, the Virgin Islands is, in effect, being
sued. Accordingly, service upon the chief executive officer--in
this case, the Governor--is required. The record does not
reflect that Thomas and Bryan ever served the Governor of the
Virgin Islands. Accordingly, the entry of default must be
vacated.

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Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
Page 23

The Court’s inquiry cannot end here, however. To date, the
Virgin Islands has not been properly served with process in this
case. The Court must thus consider whether it would be
appropriate to permit Thomas and Bryan another opportunity to
attempt to effect service.
In determining whether Thomas and Bryan ought to be allowed

additional time to effect service, the Court will consider each
of the Mathies factors. First, with respect to prejudice the
Court cannot conceive of any substantial prejudice that might be
brought upon the Lieutenant Governor by extending the period for
effecting service of process. The Lieutenant Governor is already
aware of the action and the entry of default has been vacated.
Second, Thomas’s and Bryan’s efforts to effect service were

not in full compliance with the Federal Rules, although service
was made upon the Lieutenant Governor individually. Although
their attempts at service may have sufficed to give the
Lieutenant Governor actual notice, as discussed above, notice
alone cannot render deficient service sufficient. See In re
City of Phila. Litig., 123 F.R.D. 515, 519 (E.D. Pa. 1988). This
factor thus counsels in favor of dismissal.

time in which to effect service. However, default was entered
against the Lieutenant Governor on May 15, 2013--less than 120
days after the filing of the Complaint. The entry of default may

Third, Thomas and Bryan have not requested an extension of

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Fourth, as discussed above, the applicable statute of

Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
Page 24
have incorrectly convinced Thomas and Bryan that service on the
Lieutenant Governor was sufficient.

limitations would not bar the refiling of this claim.

Considering all of the Mathies factors together, the Court
finds that none of them counsel strongly in favor of dismissal.
The lack of any identifiable prejudice counsels in favor of
allowing Thomas and Bryan some additional time to effect service
of process.
B. Failure to Join an Indispensable Party

Turn Around further argues that this matter ought to be
dismissed for failure to join all the other individuals with
interests in the Property on the ground that they are
indispensable parties.
“[U]nder Rule 19(a)(2)(ii), a court must decide whether

continuation of the action would expose named parties to the
‘substantial risk of incurring double, multiple, or otherwise
inconsistent obligations by reason of the claimed interest.’ ”
Gen. Refractories, 500 F.3d at 317 (quoting Fed. R. Civ. P.
19(a)(2)(ii)). This risk must be greater than the mere
“possibility that a subsequent adjudication may result in a
judgment that is inconsistent as a matter of logic . . . .”
Field v. Volkswagenwerk AG, 626 F.2d 293, 298 (3d Cir. 1980).

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Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
Page 25

For example, at issue in Cruz-Gascot v. HIMA-San Pablo
Hosp. Bayamon, 728 F. Supp. 2d 14 (D.P.R. 2010), was whether
certain heirs needed to be joined in a medical malpractice case.
The plaintiff was one of several heirs of a woman who had
mysteriously died while under the care of the defendant
hospital. The remaining heirs, who shared the citizenship of the
hospital, had initiated a claim in state court. The Court held
that Rule 19 required joinder of the remaining heirs, reasoning:

If the state court allows recovery in the
non-diverse heirs’ inheritance claim, [the]
plaintiff . . . will receive the benefit of
damages awarded to [the] estate because she
is a member of the sucesion. Similarly, if
her federal suit proceeds, [the plaintiff]
may receive damages individually for the
same harm that the state court already
compensated. The defendants would, in both
cases, be liable for both judgments.


Id. at 29.

Here, although the Court is unaware of any other pending
proceeding concerning the Property, the risk of inconsistent
judgments is acute. At the time the Property was partitioned, in
1988, there were sixteen individuals with fractional interests.
Since then, at least two of these individuals have died,
devising their interests to Thomas and Bryan, as well as other,
as yet unidentified, heirs. All of these individuals could
potentially bring the same claims against Turn Around as Thomas
and Bryan now do. If this Court were to deny Thomas’s and

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Turn Around argues that this matter should be dismissed

Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
Page 26
Bryan’s claims, Turn Around might yet be forced to defend its
title in numerous other actions. Similarly, if this Court were
to award Thomas and Bryan damages for their slander-title claim,
Turn Around might be exposed to redundant liability in similar
actions brought by the co-owners of the Property. Judicial
economy thus counsels in favor of the joinder of all those
having interests in the Property.

because “[i]f any of the parties or potential estates that could
be joined reside in the Virgin Islands, this court cannot
maintain subject matter jurisdiction as complete diversity would
be lost.” (Turn Around’s Mot. to Dismiss at 12–13.) However,
Turn Around does not identify which, if any, of the parties or
estates which must be joined reside in the Virgin Islands.
Indeed, as noted above, at least two of the original owners of
the Property have since died, and their heirs have not yet been
identified. Moreover, even if such parties were residents of the
Virgin Islands, the Court would be required to determine if
their presence in the litigation was “indispensable” under Rule
19(b) before dismissal could be ordered. Given that the
citizenship and even the identity of all the parties which must
be joined is at this point unclear, dismissal would be
premature.

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Turn Around further maintains that Count Two of the

Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
Page 27
C. Failure to State a Claim

Complaint should be dismissed for failure to state a claim.
Count Two asserts a claim for slander of title. To make out

such a claim, a plaintiff must allege “(1) publication, (2) with
malice, (3) of false allegations concerning the plaintiff’s
property, (4) causing pecuniary harm.” Thompson v. Fla. Wood
Treaters, Inc., 52 V.I. 986, 1006 (D.V.I. 2009) (citing Sys.
Operations, INc. v. Scientific Games Dev. Corp., 555 F.2d 1131,
1140 (3d Cir. 1977)).

purchaser of [the Property] . . . caused a slander of title, a
cloud, to be placed on Plaintiff’s [sic] title by the premature
recording of an assignment from himself . . . to Turn
Around . . . .” (Compl. ¶ 23.) Thomas and Bryan have thus
alleged the publication of false allegations. However, they have
failed to allege that this publication occurred with malice and
resulted in pecuniary harm. Thomas and Bryan thus have failed to
allege all the essential elements of a claim of slander of
title. Their complaint is thus deficiently pleaded.

In the Complaint, Thomas and Bryan allege “Bonanno,

However, it is well-settled that, when a complaint is
“dismissable for lack of factual specificity,” a plaintiff
nonetheless “should be given a reasonable opportunity to cure
the defect, if he can, by amendment of the complaint . . . .”

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Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
Page 28
Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000) (quoting Darr
v. Wolfe, 767 F.2d 79, 81 (3d Cir. 1985)). The Court must grant
leave to amend the complaint regardless of whether the plaintiff
has requested it. See District Council 48 v. Bradley, 795 F.2d
310, 316 (3d Cir. 1986).

Indeed, the Court may only refuse to grant a plaintiff

leave to amend a dismissable complaint only on the grounds of
“undue delay, dilatory motive, prejudice, and futility.” In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d
Cir. 1997); see also Lorenz v. CSX Corp., 1 F.3d 1406, 1413–14
(3d Cir. 1993). “Futility” in this context “means that the
complaint, as amended, would fail to state a claim upon which
relief could be granted.” Shane, 213 F.3d at 115 (citing
Burlington, 114 F.3d at 1434).
Turn Around has adduced no reason for the Court to believe

that permitting Thomas and Bryan to amend their complaint would
be inequitable or futile. Significantly, Turn Around does not
suggest that Thomas’s and Bryan’s claim for slander of title is
barred as a matter of law, but rather that they have failed to
set forth their claim with sufficient factual specificity. See
Darr v. Wolfe, 767 F.2d 79, 81 (3d Cir. 1985) (holding that a
curative amendment should be allowed when the complaint is
dismissable due to its lack of factual specificity).

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Thomas v. Bonanno
Civil No. 2013–06
Memorandum Opinion
Page 29
Accordingly, Thomas and Bryan will be given leave to amend their
complaint.


An appropriate order follows.

S\





CURTIS V. GÓMEZ
Chief Judge