EFTA01098959.pdf

08/10/2012 14:09 FAX 1 340 7773019 A.J.Weiss Law Firm O002/018 IN THE SUPERIOR COURT OF THE VIP GIN ISLANDS DIVISION OF ST. THOMAS AM) S JOHN r. JEFFREY EPSTEIN and L.S.J., LLC, CIVIL NO. 2010/443 Plaintiffs, AC ION FOR DAMAGES v. JURY TRIAL DEMANDED FANCELLI PANELING, INC., and J.P. MOLYNEUX STUDIO, LTD., Defendants. ) MOTION TO DISMISS CROSS-CLAIMS OF FANCELLI PANELING. INQ COMES NOW defendant J.P. MOLYNEUX STUDIO, LTD. ("JPMS"), by and through undersigned counsel, and pursuant to Fed. R. Civ. P. 12(b)(6) made applicable in this Court by Superior Court Rule 7, hereby moves to dismiss the Cross-Claim: of defendant Fancelli Paneling, Inc. ('Fancelli"), for failure to state claims on which relief can b.: granted, as there is no legal or factual basis on which Fancelli could be awarded indemnification or contribution from JPMS, and as Fancelli has failed to plead facts which, if proven, would ends led it to any of the relief sought against JPMS. In support of this motion, JPMS submits the accorlpanying Memorandum of Law. WHEREFORE, defendant J.P. Molyneux Studio, Ltd. here ly requests that the Cross-Claims of Fanelli Paneling, Inc. be dismissed with prejudice. DATED: August 10, 2012 Res tfully subrni A. J IS 'c OCIATES By: mas, ds 00802 Telephone: Telecopier: Counselfor . Molynesa Studio, Ltd 0/Mgt/Motion so Dismiss Malaya EFTA01098959 08/10/2012 14:04 FAX 1 340 7773019 A.J.Welss Lao Firn O003/018 Epstein v. Fame111& J P. Molyneur Studio, Ltd Super. Ci. Civ. No. 443/2010 friction to Dismiss Cross-Claims of Fanelli Nadia Inc. Pan 2 CERTIFICATE OF SERVIC It is hereby certified that on the 10t° day of August 2012, 1 caused a true and exact copy of the foregoing MOTION TO DISMISS CROSS-CLAIMS OF FANCELLI PANELING, INC. to be served via U.S. Mail, postage prepaid, upon the following: Denise M. Francois, Esq. HODGE & FRANCOIS 1340 Taarneberg St. Thomas, U.S. Virgin Islands 00802 Counselfor Plaintiffs .Jeffrey Epstein & LLC Treston E. Moore, Esq. MOORE DODSON & RUSSELL, P.C. Post Office Box 310 14A Noire Gade St. Thomas, U.S. Virgin Islands 00804-0310 Counselfor Defendant Fancell! Paneling, Inc. Kisha Callw 4020fililip/Modoe to Dismiss FINALArpl EFTA01098960 08/10/2012 14:04 FAX 1 340 7773019 A.J.Weiss Lax Firm Q004/018 IN THE SUPERIOR COURT OF THE VI R GIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN JEFFREY EPSTEIN and L.S.J., LLC, ) ) CIVIL NO. 2010/443 Plaintiffs, ) ) ACTION FOR DAMAGES v. ) ) JUR Y TRIAL DEMANDED FANCELLI PANELING, INC., and ) J.P MOLYNEUX STUDIO, LTD., ) ) Defendants. ) ) MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS CROSS-CLAIMS OF FANCELLI PANE] PIG. INC. COMES NOW defendant J.P. MOLYNEUX STUDIO. .1D. ("JPMS"), by and through undersigned counsel, and pursuant to Fed. R. Civ. P. 12(bX6) made applicable in this Court by Superior Court Rule 7, hereby submits this Memorandum of Law in Supportof its Motion to Dismiss Fancelli's Cross-Claims for failure to state claims on win relief can be granted, as there is no legal or factual basis on which Fancelli could be awarded indemnification or contribution from JPMS, and as Fancelli has failed to plead facts which, if proven, wr.uld entitled it to any of the other relief sought against JPMS. In fiuther support of its Motion to Di ;miss, JPMS states as follows: 1. Legal standards for 12(bX6) Motion: The Supreme Court of the Virgin Islands in Brady v. Cintr m, 55 V.I. 802, 822 (V.I. S. Ct. 2011), enunciated the standard to be applied to Motions to Distrdis for failure to state a claim on which relief can be granted in cases before the Superior Court. Th zrein the Court noted that : In Bell Atlantic Corp. v. 7'wombly [550 U.S. 544,12"' S. Ct. 1955, 167 L. Ed. 2d 929 (2007)] and Ashcroft v. lqbal, [56 U.S. 662, 129 S. Ct. 193"; 173 L.Ed. 2d 868 (2009)], the United States Supreme Court interpreted [Federal Rule of Ci vii Procedure] Rule 8 to require a complaint to set forth a plausible claim for relief, and articulated the proper standard for evaluating motions to dismiss for failure to state a claim: "a 'Jahn requires a complaint with enough factual matter (taken as true) to suggest the required e ements." Robks v. HOVENSA, LLC, 49 V.I. 491, 501 (V.I. 2008) (quoting Phillips v. County ofAllegheny, 515 F3d 224, 234 (3d Cir. 2008). Thus, under Robles, Tivombly, and lqba . courts must undertake a three step analysis to determine whether a complaint states a plausible claim for relief 4020/Fidp/Manorandom oflaw b Support ofMotioo.to Distiain Fuca Cossar.laims FrNALnd EFTA01098961 08/10/2012 14:05 FAX 1 340 7773019 A.J.Weiss Law Firm [?] 005/018 Epstein v. Fanelli & J.P. Molynewc Studio. Ltd Super. Ct. Civ. No. 443/20/0 Memorandum of Law in Suwon of Motion to Dismiss Cross-Claims ofFaxylli Panelint, Inc. Pane 2 First, the court must take note of the elements a p. aintiff must plead to state a claim so that the court is aware of each item the plaint.ft must sufficiently plead. Second, the court should identify allegations that, because I hey are no more than conclusions, are not entitled to the assumption of truth. These conclusions can take the form of either legal conclusions couched as factual allegai tons or naked [factual] assertions devoid of further factual enhancement. 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 of relief. If tt cre arc sufficient remaining facts that the court can draw a reasonable inference liar the defendant is liable based on the elements noted in the first step, then the claim is plausible. Joseph v. Bureau of Corrections, 54 V.I. 644, 649-50 (V.I. 2011) (quo ing Santiago v. Warminster Tp., 626 F.3d 121, 129-30 (3d Cir. 2010). Brady v. Cintron, 55 V.I. at 822-3. In deciding a Motion to Dismiss under F.R. Civ. P. 12(h)01), the Court is required to accept as true the well plead factual allegations in the Cross-Claim. Philip v. County ofAllegheny, 515 F. 3d, 224, 228 (3rd Cir. 2008). Conclussory allegations and legal conclusions, however, are to be disregarded. Moreover, a plaintiff is required to do more than imply use labels or conclussory allegations. Bell Atlantic Corp. v. nvombly, 127 S. Ct. 1955. hiscad, a plaintiff must plead facts to show it is entitled to relief. Thus, since Thvombly, in deciding a Motion to Dismiss under Rule 12(b)(6), the Court must determine whether the pleading at Elsie "contain[s] sufficient factual matter, accepted as true, to `state a claim for relief that is Malaita,. on its face.' "Ashcroft v. lqbal, 129 S. Ct. at 1949 (citing Avombly, 550 U.S. at 570) (emphasis added). The Court, therefore, must take note of the elements of eath cause of action to determine what a plaintiff or cross-plaintiff must plead to state a claim on v :Lich relief can be granted. The court must also identify allegations that, because they are no more t tan conclusions, are not entitled to the assumption of truth. These conclusions can take the form oft ither legal conclusions couched as factual allegations or naked [factual] assertions devoid of furtlx r factual enhancement. Finally, where there are factual allegations, a court should assume their verac i ty, and then determine whether they plausibly give rise to an entitlement of relief. If there are sufficient facts from which the court can draw a reasonable inference that the defendant is liable based atthe 'Ile:dents noted in the first 4020/1,1O/Memocincluto of Low la Support of Memo to Mamas Fa& Croostairrts FINAL,wpd EFTA01098962 08/10/2012 14:05 FAX 1 340 7773019 A.J.Welss Law Finn Q008/018 Epstein v. Fanelli J.P. Motyneur Studio, Ltd Super. Ct. Civ. No. 44312010 Moult:want:Wm of Law in Su port offiotion to Dismiss Cross-Claims of Palm lli Paftelingjac, Pate 3 step, then the claim is plausible. Joseph v. Bureau of Correction. 54 V.I. 644, 649-50 (V.I. 2011) (quoting Santiago v. Warminster, 626 F.3d 121, 129-30 (3d Ch 2010)(internal quotation marks omitted). If there are not, the claim should be dismissed. A complaint or Cross-Claim therefore satisfies the plan: ibility standard when the factual matters asserted in the pleading allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. This requires showing more than a mere possibility that a defendant has acted unlawfully. A complaint which pleads facts vhich are merely consistent with a defendant's liability, however, stops short of the line between possibility and plausibility of entitlement of relief. Bunch v. Milberg Factors, Inc., 662 F.3d 212, 220-1 (3d Cir. 2011). Here, defendant Fancelli's Cross-Claims do not come lose to meeting this standard. Fancelli's Cross-claim seeks to assert claims for relief for indemnification and contribution, for damages, and for declaratory judgment. Those Cross-Claims allege and plead that JPMS should be held liable to Fancelli, in the event Fancelli is found to be liable t ) plaintiffs for its negligence or as a result of its breach of contract. Fancelli's cross-claim, howl .ver, does not contain any facts which could even arguably support the elements of a claim for contribution or indemnity, let alone facts sufficient to meet the standards set out in Brady, Twombly, a n:1 lqbal, for its other claims for relief. 2. Fancelli's claims against JPMS: In Count 1, at para 38., after attempting to incorporate the al legations from its Counterclaim against plaintiffs Epstein and LSJ, Fancelli alleges in mere conclw sory fashion that "as a result of the foregoing, Defendant seeks a declaratory judgment from this Honorable court that: (I) Defendant satisfied its written contractual obligations, if any, to Molyneux, mrminating any claim of further benefit to Plaintiffs and Molyneux as a matter of law and fact; (2) d at Defendant has been released by Defendant Molyneux and Plaintiffs as a matter of law and fact; ( I) that Molyneux and Plaintiffs have accepted the work of Defendant without protest as a matter of law and fact; and ( 4) that Defendant is entitled to a dismissal of this riction upon release and/or accord and satisfaction and or 4020/11dgsMaponUfdara of Law In Suppon of MoLiai toDismisa Fan* Conclaims FINAL.wpif EFTA01098963 08/10/2012 14:06 FAX 1 340 7773019 A.J.Weiss Lax Firm el007/018 Epstein v. Fanelli & J.P. ilfoomeux Studio, Lid Memorandum of Law in Saloon of Motion to Dismiss Cross• Super. Ct. Civ. No. 443/2010 Claims of FM ell/ Panclint. Inc. Pape 4 the doctrine of "accounts stated" without protest. Defendant is fin her entitled to damages, attorneys fees and costs, in an amount to be determined at trial." There art to facts whatsoever alleged in this paragraph, and as such, it must be disregarded for purposes el determining JPMS' Motion to Dismiss. In Count 2, which is labeled as a claim for "INDEMNIFIC.ATION AND CONTRIBUTION", at para. 39, the single paragraph of that Count, Fancelli again asserts no separate facts for its Cross-Claims against .IPMS, and instead seeks to incorporate its Coun terclaim allegations against plaintiffs Epstein and IS!as the factual support for that Cross-Cla m against JPMS. It then requests relief as follows: "A. To adjudge and declare that Defendant fully perform( d or substantially performed its duties as limited by the purchase orders(s) between it and Molyneux and to award Defenda tt damages against Molyneux in an amount equal to any arm flint realized by Plaintiffs against Defendant Fancelli; B. To award Defendant its attorney's fees and costs, incun ed in the defense of this action; and C. To award such other and further relief as the Court deems just and proper." Neither of these Cross-claims, however, contain any independen t ; acts which could even arguably support a claim for relief against JPMS. A review of the allegations in Fancelli's Counterclaim aga inst plaintiffs, also discloses no such facts being alleged. For example, Fancelli alleges that the design drawings were done by Molyneux and that it did not have input into those drawings. Fa we'll Counterclaim at para.23. Since there is no claim that those design drawings were defective and no claim that JPMS was negligent in preparing those drawings, these allegations are not rele' ant to FANCELLI's claims for indentnification or contribution from JPMS, or to its claim for dama ges from it. Nor is it germain to Fancelli's claim for a declaratory judgment. Fancelli also alleges that Molyneux issued purchase orders to. it for the fabrication of work to the specifications as outlined in those purchase orders, and it funk er asserts that it performed the• 402041dgr./Manonadlan of Law In Support ofMotion to Dismiss Pintail' Crossel iinis FINAL wpd EFTA01098964 08/10/2012 14:06 FAX 1 340 7773019 A.J.Welss Law Firm e008/018 Extent v. Fontein & J.P. Molyneux Studio. Ltd Super. O. Civ. No. 443/2010 ?Memorandum of Law in SuDoort of Motion to Dismiss Cross-Claims of Ftz elliYanetint Inc. Pan 1 work in accordance with those purchase orders. Id. at ¶24. There is nothing in these allegations which would support its Cross-Claims against JPMS. Fancelli Ox a makes the conclussory assertion that it preformed the work to JPMS' satisfaction (Id. at pa a. 25), and that it received an acknowledgment from JPMS that it had performed the work to JP vIS' and plaintiffs satisfaction. Id. at para. 26, referencing Exhibit 4 to the Cross-Claims. Exhibit 4, however, is simply a punch list of work that has not been completed, and as such it does not suppon Fancelli's allegations. As such, the assertions must be disregarded. Fancelli then goes on to assert that it was specifically instructed by Plaintiffs that its communication on this project was limited to three individuals including its/their representative, Gary Kearney ("Kearney"). Id. at para. 27. Even if true, that alleg ation is not relevant to its Cross- Claims against JPMS. Fancelli also alleges that Plaintiffs' representative, Kearney, accepted and signed off on the work, subject to a punch list, and three minor i..sues that Fancelli claims are de minimus. Id. at ¶ 28. Although this may be true, none of these hut are relevant to its Cross-Claims against JPMS. In paragraph 29, Fancelli attempts to raise an issue based on verb tense between the Complaint and the Second Amended Complaint, which is not, for purposes of a Motion to Dismiss, a factual allegation. As such, it must be disregarded for the deterrlination of this motion. Fancelli then alleges that JPMS was the prime contractor, and that JPMS "effected and completed all outstanding contractual obligations". Id at ¶30. Fanc:111's concession that JPMS was the prime contractor, and that it was, in essence, the subcontractor is fatal to its claims for indemnification and contribution. Fancelli also alleges defendant JPMS is the actual party in privity of contract with plaintiff, and that JPMS and plaintiffs each accepted Fancelli's work by f illy acknowledging same in a writing. Id at paras. 32 & 33. While this may limit or defeat plaintiffs' claims if proven to be true, these allegations do not support Fancelli's Cross-Claims against JI'MS. Fancelli then goes on to allege that those writings constitute releases,t and also an accord and satisfaction. Id. at pans. 34 & 4020/Pldwrinfornorandom ofLew 4 Numstirt of Motion to Dismiss Fanelli Ctiosscloims FINAL-wm1 EFTA01098965 08/10/2012 14:07 FAX 1 340 7773019 A.J.Weiss Law Firm 009/018 Epstein v. Fanelli & J.P. lifolyneta Studio. Ltd Super. Ct. Civ. No. 443/2010 Memorandum of Law in Support of Motion to Dismiss Cross -Claim s of Paw Qin Paneline, Inc. Pate 6 35. These, however, are conclusions and not facts, and as such must be disregarded. Those are the sum total of the allegations in the Connie claim which are incorporated by reference into Fancelli 's Cross-Claims against JPMS. 3. Elements of causes of action for IndemnifIcatitsn or Contributi on: Contribution and indemnification are mutually exclusive a nedies. "A perso n who has a right of indemnity against another person . . . does not have a right of co ttribution against that person and is not subject to liability for contribution to that person." Restatement (Third) of Torts: Apportionment of Liability § 23(c) (2000). The Restatement (Iliird) of Torts: Apportionment of Liability (2000), supplies the substantive law with regard to comtlrc n law claims for contribution and indemnification. In re Manbodh Asbestos Litigation, 47 V.I. 375 395 (Super. Ct. 2006). a. Contribution: In order for Fancelli to state a claim for contribution from .1 PMS, Fancelli must allege facts which, if proven, would show that: (i) Fancelli and JPMS "are or n ay be liable for the same harm"; and (ii) that Fancelli has discharged "the liability of tiPMS) byseM k tent or discharge ofjudgment". Id. at § 23(a). In the event Fancelli could allege facts to establ;st the first two elements, then it would also have to establish that the amount it paid to the plaintif I' was in excess of its (Fancelli's) comparative share of responsibility in relation to the fault of JPMI Id. at § 23(b). Here, however, Fancelli does not allege any facts to shov that it can meet the first two elements of a cause of action for contribution, as there is no claim that it and JPMS are or may be liable for the same harm, and there is no allegation that Fancelli has discha rged the liability ofJPMS by settlement or payment of a judgment. Nor can there be, as plaintiffs are suing Fancelli not for anything JPMS did wrong, but rather for Fancelli's own negligent and defective workmanship, and its, not JPMS', breach of contract. As such, Fancelli is unable to est andish the first element of a claim for contribution. Fancelli has also failed to:plead facts to establish the second and third elements of a cause of action for contribution, as there is no allegation that it has discharged the liability ofJPMS or that 4020/FidOhicatonottura of law la squirt ofPatios to Dismiss Foacelli CrossclaimsFINALvdp4 EFTA01098966 08/10/2012 14:07 FAX 1 340 7773019 A.J.Welms Law Firm i 010/018 Epstein v. Ferncelli & J.? Molvneta Studio, La teternortuidum of Law in Suwon of Motion to Dismiss Cross-Claim Super. Cc Civ. No. 443/2010 s of Pas elli Panilkte. Inc. Page 7 it will pay any amount towards any liability ofJPMS if plaintiffs prevail in their suit against Fancelli. Additionally, Fancelli has not alleged facts to show tha it has or will pay any amount to plaintiffs in excess of its comparative share ofthefault. Nor can it, as it is being sued for its own negligence and breach of its contractual obligations, and it has 1K t alleged any defect or negligence with regard to JPMS' designs. As such, Fancelli is unable to allege any facts which would, even if proven, set forth a plausible claim for contribution against JPMS. Accordingly, its Cross-Claims for contribution against JPMS must be dismissed. b. Indemnification: In order for Fancelli to assert a claim for indemnification a; rainst JPMS , Fancelli must allege facts to establish that: (i) it and JPMS "are or may be liable for the same harm"; (ii) that Fancelli has discharged the liability of JPMS in whole or in part, by settlemeni or discharge of judgment (id at § 22(a)), and (iii) that Fancelli 'was not liable except vicarious y for the tort of JPMS (id. at § 22(aX2)(0). In re Manhodh Asbestos Litigation, 47 V.I. at 395. Here, Fancelli has failed to plead any facts to establish the u eleme nts. There is no al legation in Fancelli's Cross-Claim (or Counterclaim, which is incorpora ed by reference into the Cross- Claim) which would create even an inference that Fancelli and JPMS are liable to plaintiffs for the same harm. See, Fancel li's Answer to Amended Complaint, Coun t :rclairn and Cross-claim at in 22 - 38. Moreover, Fancelli cannot make such an allegation, as plain ills are suing it as a result of its own negligence and defective workmanship, and not some neglig ence on the part of JPMS or of Fancelli and JPMS jointly'. Thus, Fancelli has failed to plead facts to establish the existence of the ' To establish a claim for negligence, the Supreme Court of the Virgin Islands has held that a plaintiff must demonstrate that the defendant owed the planIt iff a legal duty, that the defendant breached that duty, and that the defendant's negligence cause d the plaintiff's injury. Causation includes cause in fact and legal causation, which is °fie], referr ed to as proximate cause. In order for the negligent act to be regarded as the cause in 1 ict of the injury, it must be shown that the injury would not have occurred but for the act. If th :re are multiple negligent acts that could have caused the injury, then the negligent conduct must le shown to have been a substantial factor in causing the harm. Brady v. Cintron, 55 V.I. at 823-2 4. 4020/Pkissibtanotaadvm of LAW In 3upport ofMotion lo Disniss Fuscolli Crossclaims F1NALwpd EFTA01098967 08/10/2012 14:08 FAX 1 340 7773019 A.J.Welss Law Firm Q011/018 Epstein v. Ponce!!! & J.P Afolyneux Studio, Ltd Super. Ct Civ. No. 443/1010 Memorandum of Law in Support of Motion to Dismiss Cross-Claims of Fan elli Panelinz. Inc. Pale first element of a cause of action for indemnification against J In addition, Fancelli has not alleged that it has discharged the liability of JPMS in whole or part, by settlement or payment of a judgment. Id. Nor can it make such an allegation consistent with its Rule 11 obligations. Similarly, there are no facts alleged by Fancelli which would, if proven, establish that its liability to plaintiffs is solely vicarious and fo- i he tort of JPMS. Again, Fancelli cannot make such allegations consistent with its Rule 11 °Minions in the face of the Amend Complaint, since plaintiffs claims against Fancelli all arise out of :ancelli's own alleged negligence and defective workmanship. Thus, there can be no claim that Fs ncelli is vicariously liable for the tort of JPMS. As such. Fancelli's Cross-Claim fails to plead fact to establish the second and third elements required for a claim for indemnification. Fancelli has not alleged a single fact which even arguably could be read to support of any of the elements of a claim for indemnification against JPMS. is Answer to Plaintiff's Second Amended Complaint with Counterclaim and Cross-Claim is exclusively concerned with whether Fancelli owed any contractual duties to the plaintiffs, and whether Fancelli had fulfilled them. Nowhere in that pleading does Fancelli set forth a single duty idles Idly owed by JPMS. In addition, Fancelli has not alleged the breach of any duty by JPMS, nor has Fancelli alleged that any alleged breach by JPMS created liability to plaintiffs on Fancelli's pan, and these defects are fatal to Fancelli's Cross-Claims. As our Supreme Court has held, the Ans w or and Cross-Claim must contain "enough factual matter (taken as true) to suggest the required element" can be proven. Brady v. Charon, 55 V.I at 822. Fancelli's Cross-Claim allegeations are nothing more that mere conclusions, and as such they are not entitled to the presumption of truth. Id at 823. Without any facts to support an allegation that JPMS is jointly liable in negligence with Fancelli. d therefore "liable for the same harm", Fanelli cannot assert a legally sufficient claim for either contribution or for indemnity, and as such its Cross-Claims must be dismissed. 4020/PkIgilhicitionodom of law b Support of Motion to Dismiss Farceili Oossckims FINALwpd EFTA01098968 08/10/2012 14:08 FAX 1 340 7773019 A.J.Welss Lax Firm @M/nn Epstein v. Fancy & J.P. Afoiyneux Studio, Ltd Super. Ct. Civ. No. 443/2010 Memorandum of Law in Swoon of Motion to Dismiss Cross-Clainis of Fr elli Paneling-inc. Page 9 c. Contract Indemnification/Contribution: To the extent that Fancelli's Cross-Claim might be attempi ing to assert a claim against JPMS for indemnification pursuant to a breach of contract theory, any such claim must also fail as a matter of law. Fancelli has not and cannot point to any contract provision which would create an express contractual right to indemnification or contribution. See. Fance ti's Answer to Plaintiff's Second Amended Complaint with Counterclaim and Cross-Claim at ¶¶ 22 - 39. Nor is a right of indemnity or contribution created for Fancelli in the Purchase Order (Exhibit 1 to Fancelli's Answer, Counterclaim & Cross-Claim), nor in any of the other exhibits F. Incelli has submitted therewith. There is no right under contract law to implied contributic nor indemnification. In fact, the Restatement (Second) of Contracts (1981) contains no provision w tich could be read to create a right of indemnification or contribution in the absence of an express provision contained in a written contract. In order for Fancelli to assert a valid claim for contribution or indemnification pursuant to a breach of contract theory, Fancelli would have to plead facts to establish the existence of a contract with an indemnity or contribution provision contained tlx rein, and also allege that it has or will be required to discharge more than its proportionate share of ihe liability. Fancelli would also have to allege facts to show that it would not be barred from obtaining contribution because of the wrongful nature of its own conduct. See, Restatement (Third) of Torts: Apportionment of Liability § 22(a) (2000). The Restatement (Third) of Restitution and Unjust Enrichment (2010) provides for similar, if not identical elements. Section 23 thereof provides as follows: § 23. Performance of a Joint Obligation (Indemnity and C attribution) (1) If the claimant renders to a third person a perforr tame for which claimant and defendant are jointly and severally liable, the claimant is entitled to restitution from the defendant as necessary to prevent unjust enrichment. (2) There is unjust enrichment in such a case to the extent that (a) the effect of the claimant's intervention is to recrace an enforceable obligation 4020/PIllp/Mtmorsodum ofLaw Is Samoa ofMaio. to DismistFu;celli Couclaints FINAL. wad EFTA01098969 08/10/2012 14:09 FAX 1 340 7773019 A.J.We1ss I.ax Firm U013/018 Epstein v. Paned!'& J.P. Mae= Studio, Ltd Memorandum of Lewin Support of Motion to Dismis Super. a Civ. No. 443/2010 s Cross-Claim ; of fear olli Paneling. Inc. Pave 10 of the defendant to the third person, and (b) as between the claimant and the defendant, the obligation discharged (or the part thereof for which the claimant seeks restitution t wasprimarily the responsibility of the defendant. Id. (emphasis added). Accordingly under Section 23 ofthe Restatement (3rd) of l•stitu tion and Unjust Enrichment, Fancelli would have to plead facts to establish that: (i) it provid ed something (goods or services) to plaintiffsfor which both it and JPMS are jointly and severally little; (ii) that as a result, it has or is discharging an enforceable obligationfor which JPMS has priz;ary responsibility; and (iii) that as between JPMS and Fancelli, JPMS was or is the party with primarily responsibility for the discharge of that obligation. An examination of Fancelli's Cross-Claim s show that Fancelli has not met this pleading burden, and cannot do so, as the claims by plait tiff are based on Fancelli's own singular wrongful conduct, and not on any obligation or wrong lid conduct of JPMS. Comment a to Section 23 provides the following explanati .nt and example: " A claim in restitution is potentially available in any situation not governed by express contract in which A discharges all or part of what is (i) c comm on liability of A and B vis-d-vis a third-party obligee, but BB the obligation II B as between A and B. The consequence is that A has to that extent performed B's obligation ... The claim is called indemnity when the liability in question, as between the parties, is altogether the responsibility of B; it is called contribution when A has laid more than A's share of a common liability that is allocated in some proportion betv een them. The logic and the rationale of the claim in restitution are precisely the same it either case. Id at §23, cmt. a. (emphasis added). Regardless of which test for contribution or indemnity is applied here, however, Fancelli's Cross-Claims must be dismissed, as it has failed to allege any facts to establish the elements of a claim for contribution or indemnification under Virgin Island s law. Moreover, dismissal should be 4020/Pleks/lititoomodum of Lass to Sopport of Modal to Dismiss Fitoccili Cmucts . ims FINALws. EFTA01098970 08/10/2012 14:09 FAX 1 340 7773019 A.J.Weiss Law Firm 014 /018 Epstein v. Foncelli & J.P. lifoomeux Studio, Ltd Super. Cf. Civ. No. 443/2010 Memorandum of Law in $uonort of Motion to Dismiss Moss-Claims of Fail elli Panelint Inc. Pate 1l