To Serve A Man And His Law Firm

The Virgin Islands Supreme Court reversed and remanded a case involving allegations of legal malpractice and related torts

The matter is remanded to the Superior Court for an evidentiary hearing to determine whether Feuerstein has engaged in evasion of process, whether Feuerstein has waived his objection to proper service or has otherwise consented to jurisdiction, and whether the Superior Court may exercise jurisdiction under the Virgin Islands’ long-arm statute. This evidentiary hearing is necessary to determine whether Pollins’s motion for third extension to serve summons should be granted by operation of Rule 4(n), either because, under all the circumstances, Pollins has established the good cause required for a mandatory extension of the period within which to accomplish service of process or because the circumstances warrant a discretionary extension notwithstanding that they do not rise to the level of good cause required for a mandatory extension, as well as resolution of the matter of personal jurisdiction over Feuerstein.

Plaintiff is suing defendant for, among other things, legal malpractice in administering a trust established by her father

Attorney Feuerstein is licensed to practice law within the Virgin Islands. His former law firm, Feuerstein & Smith, LLP, (“Feuerstein & Smith”) was registered with the State of New York from February 3, 1998 through July 25, 2018. At the time Weiss’s Trust was established Feuerstein lived in the U.S. Virgin Islands. Feuerstein & Smith maintained an office in St. Thomas until at least March 24, 2016, more than a month after Weiss’s passing. Feuerstein claims that, although he previously maintained a residence in Buffalo, New York, his primary residence changed to Florida in 2016. Nevertheless, Feuerstein affirmed that he “maintain[ed] a part-time presence in the Virgin Islands” during this period. (JA 263)

Pollins filed her initial complaint against Feuerstein individually and against Feuerstein & Smith on February 9, 2018, alleging legal malpractice, gross negligence, breach of fiduciary duty unjust enrichment, conversion, and tortious interference with expected inheritance. Pollins avers that Feuerstein mismanaged Trust funds and failed to take steps necessary to create the Newton (Neil) Weiss Foundation (“Weiss Foundation”) in accordance with her father’s testamentary documents.

Efforts to serve summons and complaint

Pollins’s December 6, 2018 third motion for extension of time was brought after repeated, facially reasonable attempts to serve the defendants with process in this case were made. The motion was accompanied by an affidavit of Pollins’s attorney and 13 exhibits supporting the Herculean efforts undertaken to locate and serve Feuerstein and the law firms which bear his name. These efforts included multiple service of process attempts in New York and Florida, as well as an attempt to enlist the aid of the U.S. Virgin Islands Government. Id. Nevertheless, on January 21, 2020, the Superior Court denied Pollins’s motion for third extension of time to serve summons. The Superior Court concluded that Pollins did not present good cause for not accomplishing service within the previously extended period and further found that the reasons presented for a further extension of time did not warrant a discretionary extension of time for service.

Jurisdiction

the Superior Court has based its dismissal of the action on its perceived lack of personal jurisdiction over Feuerstein and has made this determination in the apparent belief that Pollins failed to make a prima facie showing that Feuerstein is amenable to service under the Virgin Islands’ long-arm statute, 5 V.I.C. § 4903. Again, this determination resolved contested issues of fact without the requisite evidentiary hearing.

Waiver of jurisdiction challenge

As Pollins notes, Feuerstein’s motion to dismiss consists of several prayers for relief unrelated to personal jurisdiction. The motion includes requests to disqualify Pollins’s attorney, to strike inflammatory and false allegations, to issue a finding and award of Feuerstein’s attorneys’ fees and costs, to award damages and sanctions for breach of a agreement, and to award sanctions under the Rules of Civil Procedure and the court’s inherent authority to curtail frivolous conduct and bad faith allegations. These prayers for relief were followed by a 43-page memorandum of law in support.

Oral argument linked here.

The Superior Court order is linked here.

The failure to consider plaintiffs’ contentions without an evidentiary hearing merited relief. (Mike Frisch)