By: Claire Anaclerio
Virgin Islands Rule of Civil Procedure Rule 14(a)(1) permits a defendant, as a third-party plaintiff, to serve a complaint “on a nonparty who is or may be liable to it for all or part of the claim against it.” V.I. R. Civ. P. Rule 14(a)(1). That said, Rule 14(a)(4) also provides that “[a]ny party may move to strike the third-party claim, to sever it, or to try it separately.” V.I. R. Civ. P. Rule 14(a)(4). However, Rule 14 fails to articulate any applicable test or factors for consideration. Neither the Virgin Islands Supreme Court nor the Superior Court of the Virgin Islands has directly spoken on the issue of severance.
Despite the lack of jurisprudence, we are not entirely without guidance. While the Supreme Court of the Virgin Islands has not articulated a test on the issue of severance under Rule 14 of the Virgin Islands Rules of Civil Procedure, it has recognized that Rule 14 of the Federal Rules of Civil Procedure—which is identical to Rule 14 of the Virgin Islands Rules of Civil Procedure—facilitates the return of a settling defendant to a case to apportion liability, thus apportionment is only possible among defendants. World Fresh Markets, LLC v. Palermo, 74 V.I. 455, 466, 2021 VI 1, ¶ 16, 2021 WL 568528, at *5 (V.I., 2021). Additionally, various Superior Court decisions have held that third-party procedure is intended to facilitate, not preclude, the trial of multiple claims, which might otherwise be triable only in separate proceedings. Alkon v. Kuykendall, 70 V.I. 509, 523–24, 2019 VI SUPER 64, ¶ 21, 2019 WL 2017618, at *8 (V.I.Super., 2019), citing to U.S. v. Yellow Cab Co., 71 S.Ct. 399, 407, 340 U.S. 543, 556 (U.S. 1951). The District Court of the Virgin Islands —in assessing Federal Rule of Civil Procedure 14—is the only Virgin Islands Court to articulate a test concerning severance. The District Court considers the following three (3) factors regarding severance under Rule 14: (1) whether the issues sought to be severed are significantly different from one another and would require distinct evidentiary proof; (2) whether severance would promote judicial economy; and (3) whether either party will be unduly prejudiced by severance. Gutierrez v. Lamar Contractors, LLC, 2023 WL 3181670, at *3 (D.Virgin Islands, 2023).
Accordingly, while there appears to be a clear preference in favor of the inclusion of third parties’ claims, we will have to wait and see whether our local courts will elect to follow the District Court or develop a test specific to Virgin Islands Rule of Civil Procedure Rule 14(a)(4).
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