EFTA00309181.pdf

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND St JOHN JEFFREY EPSTEIN and L.S.J., LLC, ) ) Plaintiffs, ) CASE NO. ST-10-CV-443 ) C • vs- ) ACTION FOR DAMAGES ) C; C I FANCELLI PANELING, INC., ) JURY TRIAL DEMANDED ) Defendant. ) ci PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO DISMISS CD The motion to dismiss filed by Defendant Fancelli Paneling, Inc. ("Defendant") in the above-captioned action misstates New York law, improperly relies upon allegations not contained in Plaintiffs' first amended complaint ("FAC") and is unsupported by any affidavits or exhibits. For all of the reasons set forth below and accepting the factual allegations in the FAC as true, drawing all reasonable inferences from them and construing them in a light most favorable to the non-movant, Defendant's Motion to Dismiss the Complaint with Points and Authorities should be denied in its entirety. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Ashcroft v. !Oat 556 U.S. , 129 S. Ct. 1937 (2009), Fowler v. UPMC Shadyside, 578 F.3d 203, 210- 211 (3r° Cir. 2009) (quoting %bal. 129 S.O. at 1949-50), Sheridan v. NGK Metals Corp., 609 F. 3d 239, 262 n. 27 (3d Cir. 2010) and Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). I. PLAINTIFFS PROPERLY SERVED DEFENDANT WITH THE SUMMONS AND FIRST AMENDED COMPLAINT. Defendant first seeks to avoid this Court's adjudication of Plaintiffs' claims by arguing that the FAC, which Defendant has obviously received, was not served properly. Defendant is mistaken. The FAC was properly served at the Defendant's correct business address on EFTA00309181  Plalnr fs' Opposition to Defendant's Motion to Dismiss Epstein et al. VS. Fanelli Paneling. Inc. Case No. ST-10-CK443 Defendant's President in care of Christian Barthod, who has previously acted as the President's agent and liaison in connection with the very same dispute at issue in this case. The Affidavit of Process Server confirms, under oath, that Fancelli Paneling, Inc. was served with the summons and the FAC at its business address located at 24 East 64th Street, New York, NY 10021, in care of its president, Mr. Jean Pierre Fancelli, through Mr. Christian Barthod who verified to the process server that he worked at Fancelli Paneling, Inc. Defendant never argues that the summons and the FAC were served at an incorrect address, and in fact 24 East 64th Street, New York, NY 10021 is the same address on the business card that Mr. Christian Barthod supplied to the process serve?. It is also the same address Defendant has on file with the New York State Department of State. Pl. Ex. 4. In support of its argument for insufficient service of process, Defendant asserts that the ...Summons and Complaint (sic) were delivered to Fancelli's office in New York on or about November 29, 2010 and left at that location with an unauthorized employee of Fancelli Paneling, Inc." However, Mr. Barthod did not refuse to accept the summons and the FAC. Nor did Mr. Barthod inform the process server that he was not authorized to accept the summons and the FAC. Under Federal Rule of Civil Procedure 4(h), Plaintiff may properly effect service by serving an officer, manager, general agent or any other agent authorized by appointment or by law. Fed. R. Civ. P. 4(h)(1)(B). Federal Rule of Civil Procedure 4(e)(1)3 permits service of process on a corporation following the state law where service is made. Plaintiff served I A true and cored copy of the Affidavit of Process Server, filed with the Court on January 20, 2011 is marked Plaintiffs' Exhibit I, attached hereto and incorporated herein by this reference. 2 A true and correct copy of the business card of Mr. Christian Barthod is marked Plaintiffs' Exhibit 2, attached hereto and incorporated herein by this reference. Federal Rule ofCivil Procedure 4(e)(I) is applicable to corporations via Rule 4(hXI)(A). 2 EFTA00309182 Plaintiffs• Opposition to Defendant's Motion to Dismiss Epstein et al. vs. Fancelli Paneling. Inc. Case No. ST-JO-CY-443 Defendant in New York. New York permits service by delivery to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. NY CPLR §311(a)(1)4. Mr. Christian Barthod identified himself as a co-worker of the Defendant's President. Mr. Jean Pierre Fancelli. Pl. Ex I. Moreover, in prior interactions between Plaintiffs and Defendant, it was confirmed that Mr. Barthod was an integral part of Defendant's business operations. and the specific contact for communications with Defendants' President relating to the matters alleged in the FAC. As documented by the attached email from Mr. Christian Barthod, for example, Mr. Barthod served as liaison to Defendant's President through whom legal communications relating to the matters alleged in the FAC were directed to Mr. Jean Pierre Fancelli. 5 In addition, Defendant specifically informed Plaintiffs' counsel, Darren lndyke, that because of limitations with Mr. Fancelli's ability to communicate in English, Mr. lndyke should communicate with Mr. Fancelli through Mr. Barthod . Pl. Ex. 3 Thus, Mr. Barthod has been previously held out as a proper agent of the President of Defendant through whom all communications to Mr. Fancelli relating to the instant dispute with the Defendant were to be directed. As Mr. Fancelli's agent, Mr. Barthod was indeed a proper agent of Defendant on whom the summons and the FAC could properly be served. Even if Mr. Barthod told the process server that Defendant had not authorized him to accept service and that Barthod was not authorized by law to accept service, which Mr. Barthod clearly did not do, this would not negate service. See Shedlin v. State Tax Commission, 62 A.D.2d 806, 808-809 (st Y.A.D. 1978) (service on a secretary who protested that she could not 4 A true and correct copy of NY CPIS §3I (aX I ) is marked Plaintiffs' Exhibit 10, attached hereto and incorporated herein by this reference. 5 A true and correct copy of the July 13, 2010 email from Christian Barthod of Fancelli Paneling to Darren lndyke, Plaintiffs' New York legal counsel, and the July 14.2010 reply email from Darren Indyke to Mr. Fancelli are collectively marked Plaintiffs' Exhibit 3, attached hereto and incorporated herein by this reference. 3 EFTA00309183 Plaintiffs' Opposition to Defendant's Motion to Dismiss Epstein et al. Is. Fanelli Paneling. Inc. Case No. ST-10-CV-443 accept service held valid where secretary forwarded documents to proper person.) In the case at hand, it is clear that Mr. Barthod forwarded the documents to the proper person because the Defendant has retained counsel in the U.S. Virgin Islands to defend this action. Defendant has misstated New York law by asserting that because Defendant "is a New York corporation, it could have properly received service through its readily ascertainable registered agent...- This is simply untrue. As evidenced by the attached records from the web site of the New York Secretary of State, Defendant has provided no registered agent to accept service in New York.° http://www.dos.state.nv.us/corps/bus entity search.html. Moreover, contrary to Defendant's assertion, under New York Business Corporation Law, the New York Secretary of State was not authorized to and did not accept service of the summons and the FAC because the New York Secretary of State may only accept service ofprocess on behalf of a New York corporation for lawsuits commenced in New York State. Under the New York Business Corporation Law, only "process" may be served on the Secretary of State as agent. wee bttp://www.dos.state.ny.us/corns/fact service of process.page.asp .7 NY BCL §102(a)(1 1)8 in turn, defines "process" as "judicial process and all orders, demands, notices or other papers required or permitted by law to be personally served on a domestic or foreign corporation, for the purpose of acquiring jurisdiction of such corporation in any action or proceeding, civil or criminal, whether judicial, administrative, arbitrative or otherwise, in this state or in thefederal courts sitting in orfor this state." NY Bus. Corp. § 102(aX11) (emphasis added). The New York Secretary of State can only accept process, as defined above, for New York corporations or 6 A true and correct copy of the New York State Department of State entity information on Fancelli Paneling, Inc. is marked Plaintiffs' Exhibit 4, attached hereto and incorporated herein by this reference. 7 A true and correct copy of the New York Secretary of State's website on service of process is marked Plaintiffs' Exhibit 5, attached hereto and incorporated herein by this reference. 8 A true and correct copy of NY BCL §IO2(aXI I) is marked Plaintiffs' Exhibit 11, attached hereto and incorporated herein by this reference. 4 EFTA00309184 I Plaintiffs' Opposition to Defendant's Motion to Dismiss Epstein et at vs. Ponca Paneling. Inc. Case No. ST-10-CV-443 authorized foreign corporations. NY Bus. Corp. § 306(b)(1)9. As the instant lawsuit was commenced in the Virgin Islands, and not in New York, the New York Secretary of State cannot and did not accept service on behalf ofDefendant. Finally, the Defendant has actively avoided service of process, needlessly wasting time and money and now judicial resources, and should not be permitted to gain from doing so. On or about November 12, 2010, the undersigned counsel, pursuant to Section 4911 of Title 5 of the Virgin Islands Code, mailed the summons and a true and correct copy of the FAC to Mr. Jean Pierre Fancelli, Fancelli Paneling, Inc., 24 East 64th Street, New York, NY 10065. The envelope containing the summons and the FAC was returned by the U. S. Postal Service with the notation: "Addressee Not at this Location".i° Plaintiffs later received confirmation that they had mailed the summons and the FAC to the correct address, i.e. 24 East 64th Street, New York, NY 10065 because the Affidavit of Service dated January 3, 2011 affirms in the second paragraph that when Mr. Barthod was "...asked by the deponent whether said premises was the defendant's PLACE OF BUSINESS within the state and the reply was affirmative." Pl. Ex. 1. Earlier, on August 5, 2010, another process server attempted service of the summons and the FAC at the same address, 24 East 64th Street, New York, NY, but "deponent was informed by an individual at that address, that they did not have the authority to accept service of legal documents. Deponent was told that the owner would not return until Monday the 9th of 9 A true and correct copy of NY Bus. Corp. § 306(b)(1) is marked Plaintiffs' Exhibit 12, attached hereto and incorporated herein by this reference. l° A true and correct copy of the envelope which was returned is marked Plaintiffs' Exhibit 6, attached hereto and incorporated herein by this reference. 5 EFTA00309185  Plaintiffs' Opposition to Defendant's Motion to Dismiss Epstein et at it Fanelli Paneling, Inc. Case No. ST-JO-CV-443 August."" The same process server made a second attempt at 9:00 a.m. at 24 East 64111Street, New York, NY on August 10, 2010 and once against was "informed by an individual, that they did not have authority to accept service of legal documents." Pl. Ex. 7. On August 10, 2010, a third and final attempt was attempted at the same address and once again the process server was told by an individual that they did not have authority to accept service of legal documents." Pl. Ex. 7. Significantly, Defendant admits that "service was subsequently attempted by first class mail to Fancelli's New York address" which is consistent with the Plaintiffs' Affidavit of Service in its third paragraph that "On 12/3/2010 Deponent also enclosed a copy of same in a postpaid sealed wrapper properly addressed to defendant at defendant's PLACE OF BUSINESS at 24 EAST 64TH STREET, NEW YORK, NY 10065 BY First Class Mail marked Personal and Confidential and deposited said wrapper (in a post office) official depository under exclusive care and custody of the United States Postal Service within the New York State." Pl. Ex. I. Defendant would only know that service of the summons and FAC "was subsequently attempted by first class mail to Fancelli's New York address" if it had in fact received it by mail.12 Based upon the foregoing, service of the summons and the FAC was validly effected upon Defendant Fancelli Paneling, Inc. and Defendant's motion to dismiss based upon ineffective service of process must be denied. " The original August 19, 2010 Affidavit of Attempted Service is marked Plaintiffs' Exhibit 7 attached thereto and incorporated herein by this reference. 12 The Affidavit of Process server was filed with the Court on January 20, 2011 and Defendant mailed its Motion to Dismiss to Plaintiffs on January 13, 2011 so Defendant would not have learned of the mailing made in New York by any pleadings on file. 6 EFTA00309186 Plaintiffs' Opposition to Defendant's Motion to Dismiss Epstein et al. vs. Fancelli Paneling, Inc. Case No. ST-10-CV-443 II. THIS COURT HAS PERSONAL JURISDICTION OVER DEFENDANT FANCELLI PANELING, INC. A. Legal Standard for Evaluating a Motion to Dismiss for Lack of Personal Jurisdiction. While the plaintiff bears the burden of demonstrating facts that establish personal jurisdiction, once a jurisdictional defense has been raised, the plaintiff can then prove jurisdiction is proper by affidavits or other competent evidence. Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 324, 330 (3d Cir. 2009) and Bertrand v. Cordiner, 2010 WL 2507305 (V.I. Super. 2010). In the absence of an evidentiary hearing, the plaintiffneed only establish a prima facie case ofpersonal jurisdiction. Metcalfe, 566 F3d at 330. In deciding a motion to dismiss for lack ofjurisdiction, the court is required to accept the plaintiff's allegations as true. Metcalfe. 566 F3d at 330. At page 9 of its motion, Defendant incorrectly claims that '[c]ourts in this district have found that Due Process forbids the exercise personal jurisdiction even over defendants with more contact than Fancelli." This is simply a wrong statement of the law in this jurisdiction because the case upon which Defendant relies, Metcalfe vs. Renaissance Marine, Inc., Civ. No. 2007- 131, 2008 WL 501172 at *6 (D.V.I. Feb, 15, 2008), as the applicable law in this jurisdiction was overruled by the Third Circuit Court Appeals in Metcalfe it. Renaissance Marine. Inc., 566 F.3d 324 (3d Cir. 2009) when it reversed and remanded with instructions because the District Court "reached its determination without applying the proper standard for evaluating a motion to dismiss for lack of personal jurisdiction." Id. at 330. On appeal, the Third Circuit in Metcalfe found that the District Court had erroneously construed disputed facts against the plaintiffs and that the plaintiffs were entitled to have their allegations viewed as true and have disputed facts construed in their favor. Id. at 331 (citations omitted). 7 EFTA00309187 Plaintiffs' Opposition to Defendant's Motion to Minim Epstein et al. n. Fancelli Paneling. Inc. Case No. ST-I 0-CV-443 B. Defendant Fancelli Paneling, Inc.'s Connections with the Territory are Sufficient to Satisfy Both the Virgin Islands Long-Arm Statute and Constitutional Due Process. The Virgin Islands Long Arm Statute which provides the basis for this Court to exercise jurisdiction over a non-resident defendant such as Defendant provides in relevant part: (a) A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's (1) transacting any business in this territory; (2) contracting to supply services or things in this territory V.I. Code Ann. tit. 5, § 4903(a). The Virgin Islands Long Arm Statute has been construed to authorize the exercise of jurisdiction to the fullest extent possible under the due process clause of the United States Constitution. Godfrey v. International Moving Consultants, Inc. 18 V.I. 60 (D.V.1. 1980), Hendrickson v. Reg 0 Company, 17 V.1.457 (D.V.I. 1980). Defendant Fancelli Paneling's connections with the United States Virgin Islands are sufficient to satisfy both the Virgin Islands long-arm statute and the Constitution's guarantee of due process. Contrary to Defendant's assertion that the FAC is "devoid of the particularized allegations" needed to establish contacts between the defendant and the forum state", Plaintiffs have specifically alleged in the FAC the following to show Defendant's contacts with the Territory: That Plaintiffs learned ofFancelli after they engaged the architectural and design services of Juan Pablo Molyneux and J.P. Molyneux Studio, Ltd. ("Molyneux") to design a large-scale, multi-structure, multi-million dollar residential project to be constructed on Little St. James Island in St. Thomas, U. S. Virgin Islands. FAC at 14; 8 EFTA00309188 Plana,* Opposition to Defendant's Motion to Dismiss Epstein et al. n. Fancelli Paneling. Inc. Case No. ST-10-CV-443 That as part of this project, Plaintiffs13 contracted with Molyneux for the architecture and design of the interior and exterior of a separate building on Little Saint James Island known as the Office Pavilion. FAC at ¶4; That upon Molyneux's recommendation and at Molyneux's insistence, Plaintiffs agreed with Molyneux that Fancelli would be contracted to fabricate and install the Library Cabinetry comprising the interior of the Office Pavilion for the benefit ofPlaintiffs. FAC at ¶6; That when Defendant took the job, it knew that the Library Cabinetry was being built for installation on Little St. James Island off shore of St. Thomas and that the Library Cabinetry had to be shipped to SI. Thomas and installed on Little Saint James Island. Pl. Ex. 3 to FAC; That Defendant fabricated the Library Cabinetry in Europe and then shipped the disassembled pieces of the same in sealed crates to Little Saint James Island in or about May 2009. FAC at ¶8; and That between May 2009 and March 2010, Fancelli installed the Library Cabinetry on Little St. James Island. FAC at ¶9. In addition to the allegations of the FAC which must be accepted as true, Fancelli's multiple visits to Little Saint James Island and their duration are further confirmed by the attached affidavit of Gary Kerney1°. Specifically, Fancelli workmen were on Little Saint James Island via St. Thomas on the following dates: May 19, 2009 to June 12, 2009 January 19, 2010 to January 28, 2010 March 19, 2010 to March 22, 2010 13 The FAC uses the defined term Epstein to include both Jeffrey Epstein and L.S.J., LLC. "The original affidavit of Gary Kerney is attached hereto as Plaintiffs' Exhibit 8, attached hereto and incorporated herein by this reference. 9 EFTA00309189 Mertes' Opposition to Defendant's Motion to Dismiss Epstein et at ta. Fancelli Paneling, Inc. Case No. ST-10-CY-443 Mr. Jean Pierre Fancelli, the president of Fancelli Paneling, Inc. was on St. Thomas and Little Saint James Island on January 27-28, 2010 and on March 21-22, 2010. In its motion to dismiss Defendant disputes the dates of installation, but this and Defendant's other attempts to dispute the allegations of Plaintiffs' FAC must be construed in Plaintiffs' favor. Metcalfe. 566 F3d at 330 citing O'Connor vs. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007). I. Defendant Fancelli Paneling, Inc. Transacted Business in the Territory. This Court may exercise long arm jurisdiction over a non-resident defendant such as the Defendant which transacted business in the Territory. 5 V.1.C. § 4903(a)(1). Defendant clearly transacted business in the Virgin Islands when it shipped the Library Cabinetry to St. Thomas and commenced installing the Library Cabinetry on Plaintiff's property on Little Saint James Island, and then returned to the Territory on multiple occasions from May 2009 to March 2010 to resume the installation. FAC ¶9 and P1. Ex. 8 Affidavit of Gary Kerney. 5 V.I.C. § 4903(a)(1). Defendant's conduct rose to the level of doing business and was more than a consequential act. Bertrand v. Cordiner at *17 citing Manbodh, 47 V.I. at 283 and Hendrickson v. Reg 0 Co., 17 V.I. 457, 462 (D.V.I. 1980). Even a single act amounting to "transaction of business" in the Territory may suffice as the basis for personal jurisdiction. Bertrand v. Cordiner at *1647 citing Metcalfe v. Renaissance Marine, Inc. 566 F.3d 324, 322 (3d Cir. 2009) (citations omitted). Defendant's multiple trips to the Virgin Islands satisfy the requirement of subsection (a)(1) of the Virgin Islands Long Arm Statute for "transacting any business" in the Territory. 10 EFTA00309190 Plaintiffs' Opposition to Defendant's Motion to Dismiss Epstein et al. n. Fancelli Paneling, Inc. Case No. ST-10-CY-443 2. Defendant Fancelli Paneling, Inc. Contracted to Supply Goods in the Territory. This Court may also exercise long arm jurisdiction over a non-resident defendant such as the Defendant which contracts to supply goods and services into the Virgin Islands. 5 V.I.C. § 4903(a)(2). The FAC clearly alleges that Defendant knowingly contracted to supply Library Cabinetry to the Virgin Islands. FAC at ¶ 7 and Ex. 3 to FAC. Defendant did ship the Library Cabinetry to the Virgin Islands. FAC at 118. Defendant did commence services to install the Library Cabinetry on Little St. James, United States Virgin Islands. FAC at 1 9. On their first trip to the Territory, Defendant's workmen stayed for almost a month: from May 19, 2009 to June 12, 2009. Pl. Ex. 8. By Defendant's own actions, this Court can find that Defendant contracted to supply a product, i.e. the Library Cabinetry, and services, i.e., installation of the Library Cabinetry, to the Territory. As pointed out by this Court in Bertrand v Cordiner, "all that is required to satisfy section 4903(a)(2) is that a 'contract be performed, at least in part, in the Virgin Islands and that the cause of action arise out of the contract.'" Bertrand v. Cardiner at *17. Thus, subsection (a)(2) provides an even stronger statutory basis for exercising long arm jurisdiction over the Defendant because the only requirement of subsection (a)(2) is that the contract be performed, at least in part in the Virgin Islands and that the cause of action arise out of the contract. See also Metcalfe 566 at 332 and Buccaneer Hotel Corp. v. Reliance Int 7 Sloes Corp., 17 V.I. 249, 255 (D.V.I. 1981). Moreover, as stated by the Third Circuit in Metcalfe, "when a defendant is aware that the Virgin Islands is the ultimate destination of the goods it is supplying, the contract is said to be performed (at least in part) in the Virgin Islands." Metcalfe at 332. Plaintiffs have met their burden of showing that the actions of Defendant in undertaking 11 EFTA00309191 Plaintiffs' Opposition to Defendant's Motion to Dismiss Epstein et al. n. Fanelli Paneling, Inc. Case No. ST•10-CP-443 to construct the custom made Library Cabinetry, ship it to the Territory and install it in Plaintiffs' property of Little Saint James Island satisfies the requirement of subsection (a)(2) of "contracting to supply services or things in this territory[.)" Each of subsections (a)(1) and (a)(2) provide a separate statutory basis for exercising long arm jurisdiction over the Defendant and Plaintiffs' allegations in the FAC satisfy the requirements of each of those subsections. Under the circumstances, there is no doubt that there is a sufficient statutory basis for the court to exercise long-arm jurisdiction over the Defendant in this case. 3. Defendant Fanelli Paneling, Inc. Has Certain Minimum Contacts with the Territory and the Exercise of Jurisdiction Over Defendant is Consistent with Due Process. The allegations of Plaintiffs' FAC, together with the affidavits and exhibits attached hereto, also establish that the exercise of personal jurisdiction over Defendant satisfies constitutional due process. The due process clause permits the exercise ofin personam jurisdiction over a particular defendant if the defendant has such minimum contacts with the forum that "the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Godfrey, 18 V.I. at 68-69 (quotingInternational Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). In evaluating whether the exercise ofjurisdiction is fair and reasonable the courts exercise a balancing test looking at the forum's interest in adjudicating the dispute, the plaintiff's interest in obtaining relief at the particular forum and the relevant contacts the defendant has with the forum, measured against the burden of the defendant in defending in that forum. Godfrey, 18 V.I. at 68-69 and World-Wide Volkswagen Corp. v Woodson, 444 U.S. 286 292(1980). 12 EFTA00309192 Plaintiffs' Opposition to Defendant's Motion to Dismiss Epstein el al. it Fanelli Paneling. Inc. Case No. ST-10-CV-443 In the case at hand, the Virgin Islands has a manifest interest in providing effective means of redress for its residents such as Plaintiffs, when the Library Cabinetry which was custom made for Plaintiffs to be used in the Virgin Islands is defective, unfinished and poorly constructed. Similarly in Bertrand v. Cordiner, this Court found such a manifest interest when Mystic Granite and Marble. Inc. ("Mystic"), a Florida company, knowingly sold marble that Mystic knew would be delivered to the Virgin Islands and otherwise purposefully directed its activity towards a consumer in the Virgin Islands. Accordingly, plaintiff had met her prima fade burden of producing evidence that the Court's exercise of personal jurisdiction over Mystic was consistent with the due process requirements. Betrand v. Cordiner at *20. Similarly, in the instant case, Defendant accepted and began performing under its contract knowing that the Library Cabinetry was to be fabricated for shipping and installation in the Virgin Islands, and Plaintiffs' allegations to that effect in the FAC meet its prima facie burden of producing evidence to demonstrate that the Court's exercise of personal jurisdiction over Defendant is consistent with due process requirements. In the case of Godfrey v International Moving Consultants, Inc., 18 V.1.60, the plaintiffs' employer, the U. S. Department of Health, Education and Welfare Center for Discase Control, on behalf of its employee Dr. Harry Godfrey, contracted with defendant Ocean-Air (a Pennsylvania company with a principal place of business in Burgettstown, Pennsylvania) to move plaintiffs' household goods from St. Thomas to Abidjan, Ivory Coast as Dr. Godfrey was being transferred there for a new assignment. Ocean Air in turn contracted with Caribbean Forwarders of St. Thomas for pick up of the goods in St. Thomas and initial shipment to the goods to New York where trans-shipment to Africa was to be arranged by Ocean-Air. Ocean Air also contracted with Major Van Lines to receive the container of plaintiffs' goods at its warehouse in New Jersey, 13 EFTA00309193 Plaintifft• Opposition to Defendant's Motion to Dismiss Epstein 0 al vs. Fanelli Paneling. Inc. Case No. ST-10-CV-443 upon arrival of the goods in Ncw York and keep same in storage while they awaited further shipment to Africa. Unfortunately, after the goods were delivered to Major Van Lines' depot, the warehouse and all of its contents, including plaintiffs' goods were destroyed by fire. The plaintiffs then filed suit against Ocean-Air in the District Court of the Virgin Islands for damages sustained as a result of the loss of their goods. After finding that Ocean-Air's activities within the Virgin Islands constituted transacting business within the Territory and contracting to supply services or things in this Territory within the meaning of subsections (a)(1) and (a)(2), the court, applied the balancing test to the facts of the case, and found that Virgin Islands had manifest interest in providing effective means of redress for its residents when their personal goods are lost, damaged or destroyed during the course of transport. Just as in the Godfrey case, the interest of the Plaintiffs in bringing the suit in St. Thomas, United States Virgin Islands is clear. Plaintiff Jeffrey Epstein is a resident of the Virgin Islands." His company L.S.J., LLC owns real estate in the St. Thomas and St. John District which both Plaintiffs sought to improve with the construction of the Office Pavilion and installation of the Library Cabinetry. Defendant shipped the Library Cabinetry to St. Thomas and installed the Library Cabinetry on Little St. James Island. However, Defendant's installation of the Library Cabinetry in the United States Virgin Islands was incomplete and improper and the Library Cabinetry as installed is in defective condition. Under the circumstances, the Virgin Islands has a manifest interest in providing effective means of redress for its residents with respect to the defective and improperly and incompletely installed Library Cabinetry. The Defendant knew in advance that is was fabricating Library Cabinetry bound for the 15 Defendants claim that Jeffrey Epstein is a resident of several other jurisdictions but the allegations of Plaintiffs' PAC must be accepted as true and any disputes resolved in favor of Plaintiffs. 14 EFTA00309194 Plaintiffs' Opposition to Defendant's Motion to Dismiss Epstein et al vs. Fancelli Paneling, Inc. Case No. ST-10-CP-443 Virgin Islands as evidenced by the purchase order. Ex. 3 to FAC. Then Defendant's workers travelled to the St. Thomas and St. John District multiple times to assemble and install the Library Cabinetry. Pl. Ex. 8. The Defendant took action purposefully directed to the forum state. Metcalfe at 334. Exercising jurisdiction over a company over these circumstances "does not offend "traditional notice of fair play and substantial justice.'" Id. at no citing International Shoe Co. v. Washington, 326 U.S. 310 (1965). Plaintiffs have met their prima fade burden of producing evidence that the Court's exercise of personal jurisdiction satisfies both the long arm statute and due process. Accordingly, Defendant's motion to dismiss for lack of personal jurisdiction should be dismissed. III. PLAINTIFFS' FIRST AMENDED COMPLAINT SUFFICIENTLY ESTABLISHES A CAUSE OF ACTION FOR BREACH OF A THIRD PARTY BENEFICIARY CONTRACT AND NEGLIGENCE ON THE PART OF DEFENDANT. 1. The First Amended Complaint Provides the Specifics of this Court's Jurisdiction Over the Defendant in All Respects. With respect to Defendant's motion to dismiss for failure to state a claim, the Court must accept the factual allegations in the FAC as true and construe the FAC in the light most favorable to the Plaintiffs. Bertrand v. Cordiner Enterprises at 5. Defendant makes unsupported general claims that the FAC fails to allege that this court has subject matter jurisdiction or personal jurisdiction over Defendant and that venue is improper. This Court has jurisdiction over this matter under section 76(a) of title 4 of the Virgin Islands Code. And although that section of the Code was not specifically alleged in the FAC, everything else needed to establish this Court's subject matter and personal jurisdiction is contained in the FAC. 15 EFTA00309195 Plaintiffs' Opposition to Defendant's Motion to Dismiss Epstein et al. is. Fancelli Paneling. Inc. Case No. ST-10-CV-443 Although Plaintiffs' FAC clearly pleads facts sufficient to show that this Court has subject matter jurisdiction and personal jurisdiction, Defendant's motion to dismiss does not clearly specify on which basis this Court lacks subject matter jurisdiction. A lack of subject matter jurisdiction falls under Federal Rule of Civil Procedure 12(b)(1). In section IV. C. of its Motion to Dismiss, Defendant suggests that the motion to dismiss for lack ofjurisdiction is based on Plaintiffs alleged failure to state a claim for which relief may be granted, which falls under Federal Rule of Civil Procedure 12(b)(6). A motion to dismiss under 12(6)(1) must be denied if the allegations in the complaint are sufficient for the court to infer the basis of jurisdiction, even if the complaint fails to state the statutory basis of jurisdiction. See Hamdi ex rel. Hamdi v. Napolitano, 620 F.3d 615. 620. (6rh Cir. 2010). Plaintiffs' FAC clearly alleges the facts necessary for this Court to infer that it has jurisdiction under section 76(a) of title 4 of the Virgin Islands Code. Claims for breach of contract and negligence are both civil actions which are subject to the original jurisdiction of this Court under section 76(a). Smith v. Benjamin, Civ. No. 846/1988, 1994 WL 567721, at •4 (Ten. V.I. Sep 27, 1994). To prove breach of contract under Virgin Islands law, the plaintiff must allege an (1) an agreement, (2) a duty created by that agreement, (3) a breach of that duty, and (4) damages. Id. Plaintiffs' FAC alleged that Plaintiffs were the third party beneficiaries of the agreement between Defendant Fancelli Paneling, Inc. and Molyneux. FAC at 9¶7 & 12. The FAC alleged that the agreement between Molyneux and Defendant required Defendant to fabricate and install cabinets for Plaintiffs. FAC at ¶7. Plaintiffs attached the Molyneux and Fancelli agreement to the FAC. MC at ¶3. The FAC alleged that Defendant failed to meet its duty under the agreement. FAC ¶113 & 15. The FAC alleges damages in increased expenses to correct the 16 EFTA00309196 Plaintis' Opposition to Defendant is Motion to Dismiss Epstein et at vs. Fontein Paneling, Inc. Case No. ST-10-CV-443 defects. FAC ¶ 16. Plaintiffs sufficiently pled detailed allegations of the elements of a Breach of Contract claim to survive Defendant's motion to dismiss under Rule 12(b)(6). In addition, the attached Affidavit of Juan Pablo Molyneux confirms that "It was the clear understanding and agreement of Studio and Fancelli when they contracted that all of their contracts with respect to the Library Cabinetry were for the benefit of Epstein and LSJ and that the Library Cabinetry was to be installed and used in an office/library structure located in the tropical Caribbean locale of the United States Virgin Islands."16 ¶6. The Affidavit further confirms the allegations of breach made in the FAC, stating that "Fancelli has failed to fully complete the proper installation, staining and finishing of the Library Cabinetry on Little Saint James Island in accordance with the requirements of the contracts between Studio and Fancelli, and, as installed, the Library Cabinetry is incomplete and defective in numerous respects . . ." Plaintiffs have also sufficiently pled all of the elements to prove negligence under Virgin Islands law, i.e., (1) a duty; (2) a breach of that duty; (3) causation; and (4) damages. Charleswell v. Chase Manhattan Bank, N.A., 308 F.Supp.2d 545, 571 (D.V.I. 2004). Here, Plaintiffs alleged that Defendant owed them a duty of care and a duty to perform the professional services contracted for in a reasonable, competent, diligent, careful and good workman-like manner. FAC 1 18. The FAC also alleges that Defendant breached its duty by virtue of the specific acts and omissions alleged in the FAC in that it failed to exercise requisite care, skill, knowledge and judgment. FAC ¶ 19. The FAC further alleged that the breach caused Plaintiffs damages for their loss of the benefit of their bargain or their expectation interest and increased expenses. FAC ¶ 20. Plaintiffs sufficiently pled detailed allegations of the elements of a negligence claim 16A true and correct copy of the Affidavit of Juan Pablo Molyneux is marked Plaintiffs' Exhibit 12, attached hereto and incorporated herein by this reference. The original affidavit will be filed N% ith the Court as soon as it is received by undersigned counsel for Plaintiffs. 17 EFTA00309197 Plaintiffs ' Opposition to Defendant's Motion to Dismiss Epstein etal. vs. Fanelli Paneling. Inc. Case No. ST-10-CV-443 to survive Defendant's motion to dismiss under Rule 12(b)(6). Defendant's motion to dismiss for failure to state a claim must be denied in light of the very specific allegations of Plaintiffs FAC and the exhibits attached thereto. 2. Plaintiffs Have Filed Their Lawsuit in the Proper Venue: The St. Thomas and St. John Division of the Superior Court. Defendant also suggests that this case be dismissed because the venue is improper. "To survive a motion to dismiss for improper venue, the plaintiff must only make a prima facie showing of venue.- Rothstein v. Harstad, Civ. No. 2:10-01421, 2010 WL 3259789, *2 (D.N.J. Aug 17, 2010). In the Virgin Islands "[Eijil civil actions shall be initiated in the judicial division where the defendant resides or where the cause of action arose or where the defendant may be served with process." 5 V.I.C. § 78(a). "[W]here the defendant deliberately has engaged in significant activities within a State, or has created continuing obligations between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by the benefits and protections of the forum's laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well." Urgent v. Technical Assistance Bureau, Inc., 255 F.Supp.2d 532, 536 - 37 (D.V.I. 2003) (quoting Burger King Corp., 471 U.S. at 475 — 476, 105 S.Ct. 2174 (1985) (citations and quotations omitted)). As explained above, long arm jurisdiction applies because the cause of action arose on Little St. James where the Defendant failed to honor its contractual obligation and where Defendant's negligence caused Plaintiffs damages in excess of 5780,000. Defendant contracted to supply Library Cabinetry to be shipped to and installed in the St. Thomas and St. John Division and the cause of action arose in this Division. The Library Cabinetry was installed incompletely, improperly and in defective condition in Little St. James Island located in the St. Thomas and St. John Division. Venue is not proper anywhere else. 18 EFTA00309198 Plaints' Opposition to Defendant's Motion to Dismiss Epstein et al. Is. Fancelli Pending, Inc. Case No. ST-10-CV-443 3. Plaintiffs' Status as Third Party Beneficiaries of the Fancelli and Molyneux Contract is an Exception to the Privity of Contract Requirement. Without legal support and in reliance on facts not alleged in Plaintiffs' FAC, Defendant argues that it had no privity of contract with Plaintiffs. Defendant bases the lack of privity on the rejection of Plaintiffs' status as third party beneficiaries. "A promise in a contract creates a duty in the promisor to any intended beneficiary to perform the promise, and the intended beneficiary may enforce the duty." KMART Corp. is Balfour Beatty, ha, 994 F.Supp. 634, 636 (D.V.I. 1998) (quoting Restatement (Second) q/' Contracts § 304). A third party beneficiary is an exception to the privity of contract requirement for standing to sue for breach of contract. Shay v. Aldrich, 790 N.W.2d 629, 640 n. 48 (Mich. 2010); Peter Kiewit Sons'. Inc. v. ATSER, LP, 684 F.Supp.2d 1126, 1137 (D. Neb. 2010); Matos v. Nextran, Inc., Civil No. 2008-65, 2009 WL 2477516, *3 (D.V.I. Aug 10, 2009). As alleged in the FAC, Plaintiffs entered into a contract with Molyneux for the design of an Office Pavilion that included fabrication and installation of the Library Cabinetry. Molyneux entered into an agreement with Defendant for the Library Cabinetry. Molyneux's agreement with Defendant helped Molyneux fulfill the agreement between Molyneux and Plaintiffs for the Library Cabinetry on Little St. James Island. The FAC properly alleges that Plaintiffs were the third party beneficiaries of the agreement between Molyneux and Defendant. Moreover, as confirmed in paragraphs 6 and 12 of the attached Affidavit of Juan Pablo Molyneux, Plaintiffs were in fact the clear and intended beneficiaries of the agreement between Molyneux and Defendant. 4. Defendant Fancelli Paneling Owed a Duty to Plaintiffs As the Intended Third Party Beneficiaries. Without reference to any legal authority, Defendant claims that it did not owe a duty to 19 EFTA00309199 Plaimiffs' Opposition to Defendant's Motion to Dismiss Epstein et al. Is. Fancelli Paneling, Inc. Case No. ST-10-CV-443 Plaintiffs. However, the duty owed by Defendant to Molyneux under the Molyneux Fancelli Agreement transferred to Plaintiffs, as the intended third party beneficiaries (discussed above) of that agreement. In re Kaplan, 143 F.3d 807, 813 (3d Cir. 1998) (citing Restatemen► (Second) of Contracts § 305 comment a (noting that a promisee may recover damages that flow from a promisor's failure to perform to the intended beneficiary); I 7A Am. Jur.2d Contracts § 436 (recognizing that a promisor owes overlapping duties to a promisee and a third party beneficiary)). In other words, Defendant owed Plaintiffs a duty via the Molyneux Fancelli agreement. 5. Defendant's Claim that Plaintiffs Accepted the Library Cabinetry and Released Defendant is Unsupported and Relies Upon Allegations Beyond the Scope of Plaintiffs' FAC. While the Court has the discretion to consider matters outside of the pleadings in ruling on a Rule12(b)(6) motion to dismiss, it cannot rely upon allegations unsupported by affidavit or other reliable documentary evidence. Accordingly. Defendant's unsupported claim that Plaintiffs accepted Defendant's work and released Defendant is without basis in law or fact, is contrary to the allegations contained in the FAC, and should not be considered as any basis to grant Defendant's motion to dismiss. IV. PLAINTIFFS HAVE NOT FAILED TO JOIN AN INDISPENSIBLE PARTY As another and further grounds for dismissal, Defendant claims that Molyneux is an indispensable party because Defendant has no privity of contract with Plaintiffs. Under Fed. R. Civ. P. 19(b), a party cannot be "indispensible" unless it is first found to be "necessary" under Rule 19(a). Williams v. Mackay, D.C. Civ. App Nos. 2002/0152 & 2002/0154, 2011 WL 98401 (D.V.1. 2011) citing Alpa S.A. Agroindusirial Alemano v. ACLI International, Inc., 573 F. Supp. 20 EFTA00309200 Plaintiffs' Opposition to Defendant's Motion to Dismiss Epstein et al. vs. Fanelli Paneling, Inc. Case No. ST-10-CV-443 1070, 1078 (S.D.N.Y. 1983). The existence of the contract between Molyneux and Defendant where Plaintiffs are the clear and intended third-party beneficiaries renders Defendant's argument thin and hollow because third-party beneficiaries such as the Plaintiffs need not be in privity to sue for breach of contract. See Molyneux Affidavit Pl. Ex. 13. If this Court can grant Plaintiffs complete relief without Molyneux, then Molyneux is not a necessary party. See Byas v. Legislature of Virgin Islands, Civil No. 2006-238, 2008 WL 5422852, *5 (D.V.1. Dec 17, 2008). Defendant claims, without legal support, that under Virgin Islands law, a judgment rendered without Molyneux's participation would not be adequate because Defendant cannot properly be obligated to refund contractual damages to Plaintiffs. Defendant fails to explain why it could not be obligated to refund the contractual damages. Third-party beneficiaries can recover the intended benefit from any party that promised to confer the benefit. Wilhide v. Keystone Ins. Co., 195 F.Supp. 659, 661 — 62 (D.C.Pa. 1961). Plaintiffs' FAC properly alleges that Plaintiffs were the third-party beneficiaries of the agreement between Molyneux and Defendant and, as such, were entitled to recover the intended benefits promised by Defendant under that contract. Defendant has provided nothing that undermines the Plaintiffs' allegations. Additionally, in a third-party beneficiary contract action, the party that contracted on behalf of the third-party beneficiary is not a necessary party. Miller v. Augusta Mut, Ins. Co., 157 Fed.Appx. 632, 637 — 638 (4th Cir. 2005). Here, the complaint is limited to the Library Cabinetry — work solely performed by Defendant. Even if Molyneux has information or materials that Defendant desires for its defense, that alone provides no justification to deem Molyneux a necessary party, as Defendant can always subpoena Molyneux to provide the information Defendant desires. See Greenwich Life Settlements, Inc. v. ViaSource Funding