Durant v. Husband
| Decision Date | 24 June 1994 |
| Docket Number | No. 93-7414,93-7414 |
| Citation | 28 F.3d 12 |
| Parties | Frank DURANT, Appellee, v. David HUSBAND; Government of the Virgin Islands; Contant Restaurant Association, Inc., d/b/a Old Mill and Sugars Night Club, Government of the Virgin Islands, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Frederick Handleman, (argued), Rosalie Simmonds Ballentine, Atty. Gen., Paul L. Gimenez, Sol. Gen., Darlene C. Grant, Office of the Atty. Gen., Charlotte Amalie, St. Thomas USA Virgin Islands, for appellant, Government of the Virgin Islands.
Andrew L. Capdeville, (argued), Law Offices of Andrew L. Capdeville, Charlotte Amalie, St. Thomas USA Virgin Islands, for appellee, Frank Durant.
Before: STAPLETON, ALITO, and WEIS, Circuit Judges.
In this suit under the Virgin Islands Tort Claims Act, plaintiff secured a default in the district court after the territorial government had failed to answer the complaint. After a contested hearing that was limited to damages, plaintiff received a judgment for $25,000. We hold that the award was a "judgment by default" against the government and thus proscribed by the Tort Claims Act. Accordingly, we will reverse the judgment and remand for a trial on liability and damages.
Plaintiff Frank Durant was employed as a security guard at the Old Mill Restaurant and Sugars Night Club on St. Thomas, Virgin Islands. At about 4:00 a.m. on January 14, 1990, a disturbance erupted among several patrons at the nightclub. Plaintiff managed to quell the altercation. Shortly thereafter, however, defendant David Husband, an off-duty policeman employed by the Virgin Islands government who was also a patron at the nightclub, struck plaintiff on the head with a pistol and later fired a shot that missed him. For his conduct at the nightclub, Husband was convicted on charges of assault and using a deadly weapon.
After properly serving the Attorney General with a notice of intent to submit a claim under the Virgin Islands Tort Claims Act, V.I.Code tit. 33, Sec. 3401 et seq., plaintiff filed a suit in the district court on September 18, 1990. The complaint named as defendants the owner of the nightclub, the Government of the Virgin Islands, and Husband. The government was not served with the complaint until April 30, 1991.
In July 1991, the owner of the nightclub was dismissed on the plaintiff's stipulation. Meanwhile, pretrial proceedings in the claim against Husband continued in the district court.
As of September 1992, the Attorney General's office had not responded to the complaint, and on September 18, 1992, plaintiff moved for default against the government. There is no indication in the record that the government was ever given notice of the motion before the clerk entered the default on January 26, 1993.
On February 12, 1993, the Attorney General's office filed an untimely answer without obtaining leave of court. The district court struck the answer on February 22, 1993 and directed that a hearing on damages would begin on March 29, 1993.
In the period between March 9, 1993 and March 24, 1993, the Attorney General's office filed motions to file an answer out of time, to set aside the default, and for judgment on the pleadings. The trial judge denied all of these motions, thus rejecting the government's contention that no judgment by default could be entered under the governing Virgin Islands law.
The court conducted a hearing that was confined to the amount of damages the government would be required to pay. Plaintiff and one of his physicians testified on the extent of the physical and emotional injuries that were caused by the incident at the nightclub. Although a Deputy Attorney General cross-examined the witnesses, he did not produce any evidence. At the conclusion of the damages hearing, the district court entered a judgment in favor of plaintiff in the amount of $25,000.
The plaintiff's claim against the government is based on the Virgin Islands Tort Claims Act. 1 The statute is a limited waiver of the Virgin Islands' sovereign immunity conferred by the Revised Organic Act of the Virgin Islands, 48 U.S.C. Sec. 1541(b). See Deary v. Three Un-Named Police Officers, 746 F.2d 185, 193 (3d Cir.1984). 2
One of the limitations on the government's conditional waiver can be found in V.I.Code tit. 33, Sec. 3408. This section provides that the government assumes liability with respect to personal injury "caused by the negligent or wrongful act or omission of an employee ... while acting within the scope of his office or employment, under circumstances where the Government of the Virgin Islands, if a private person, would be liable to the claimant...." Id. Sec. 3408(a). However, those provisions do not apply if the injury "is caused by the gross negligence of an employee ... while acting within the scope of his office or employment." Id. Sec. 3408(b).
A further limitation of the government's conditional waiver can be found in section 3411(a): "No judgment shall be granted on any claim against the [g]overnment ... except upon such legal evidence as would establish liability against an individual or corporation in a court of law, and no judgment by default shall be entered against the [g]overnment." No case law defines the meaning of "judgment by default" as that term is used in the Virgin Islands Tort Claims Act.
The Federal Rules of Civil Procedure are in effect in the Virgin Islands. In moving for a default, plaintiff followed the procedures set out in Rule 55, which makes a distinction between an "entry of default" and a "judgment by default." Rule 55(a) allows the court clerk to enter a default against a party on its failure to plead or otherwise defend. However, when the claim is unliquidated, plaintiff must apply to the court for a "judgment by default." If it is necessary "to determine the amount of damages or to establish the truth of any averment by evidence," the court may conduct a hearing. Fed.R.Civ.P. 55(b)(2).
Rule 55(e) provides that "[n]o judgment by default shall be entered against the United States ... unless the claimant establishes a claim or right to relief by evidence satisfactory to the court." Fed.R.Civ.P. 55(e). However, because that subsection is expressly limited to the government of the United States, it is not applicable to the case at hand, and consequently, decisional law interpreting that subsection is not controlling. Moreover, the clause beginning with "unless" is conspicuously not present in the Virgin Islands statute. Thus, the cases allowing the entry of a "default" against the federal government and granting relief to a plaintiff under the exception provided by that clause are not particularly helpful, even by analogy.
Plaintiff proceeded in the district court as if the Virgin Islands Tort Claims Act and Federal Rule of Civil Procedure 55 were compatible and complementary. The language of the Tort Claims Act, however, is quite specific and unambiguously prohibits any judgment by default against the territorial government.
The Rules Enabling Act provides that the federal rules must not "abridge, enlarge or modify any substantive right." 28 U.S.C. Sec. 2072(b). Rule 55(e), however, substantially restates the now-repealed last clause of 28 U.S.C. Sec. 763 (). See Fed.R.Civ.P. 55 advisory committee's note; see also 10 Charles A. Wright et al., Federal Practice and Procedure Sec. 2702 (1983). Because Rule 55(e) in a sense incorporates a statute addressing the limitation on the sovereign immunity of the United States, the Rule is not wholly procedural.
To the extent that the Virgin Islands waiver of sovereign immunity is flatly conditioned on the non-availability of a default judgment, the matter is one of substance and not procedure. Applying Rule 55(e) to permit default judgments against the Virgin Islands government in the present case would significantly "enlarge" the substantive rights conferred on claimants under section 3411(a) of the Tort Claims Act. Therefore, where a conflict between Rule 55 and the substantive Virgin Islands statute exists, as here, the Rule must give way. 3
Before presenting his testimony on damages in the district court, plaintiff argued that a judgment entered after a damages hearing would constitute a judgment on the merits, even though the government was prohibited from contesting its liability because of the default. The district court accepted this reasoning, but we cannot agree that the clear statutory prohibition against a judgment by default may be so evaded.
The judgment against the government was grounded on two essential bases--liability and damages. Lacking either element, the judgment can have no validity under the Tort Claims Act. In the case at hand, the default ruling on liability goes to the very heart of the judgment, despite the fact that a hearing was conducted to...
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