Rule 2 Commencement; Form of Complaint; Transfer; Answer.

REPORTER’S NOTE The first sentence of Rule 2(a) is based on Rule 3 of the Virgin Islands Rules of Civil Procedure. The language of former Superior Court Rule 61, which provides that actions “which are within the jurisdiction of the small claims division shall be docketed in that division,” has been removed to recognize that a plaintiff has the right to file an action with the Civil Division, and thus take advantage of the constitutional right to be represented by counsel and to a jury trial. Subpart (a)(1) is based on Rule 8(a)(1)-(2) of the Virgin Islands Rules of Civil Procedure, as well as the first sentence of former Superior Court Rule 62(a), but also incorporates statutory language found in 4 V.I.C. § 112(b) recognizes that a small claims plaintiff may voluntarily waive the portion of the recovery, exclusive of interests and costs, that exceeds the jurisdictional limits of the Small Claims Division.

Recognizing that in many instances Small Claims proceedings involve a writing between the parties, subpart (a)(2) requires that where the claim is based in part upon a written document, a copy of the document should be attached to the complaint if the document is available to the plaintiff. Subpart (a)(3) provides that a form and instructions may be developed to assist claimants in stating their claims and focusing the proceeding on the issues. It also states that at the request of the plaintiff, the clerk shall assist in completing the complaint in conformity with these Rules, but specifies the clerk may not provide legal advice to a party. In keeping with the simplicity of Small Claims proceedings, subpart (a)(4) states that the clerk may not reject a complaint docketing simply due to a defect in its form or title. Rule 2(b) acknowledges the statutory requirement that all small claims actions are within the original jurisdiction of the Magistrate Division of the Superior Court, see 4 V.I.C. § 123(d), and clarifies that small claims cases are therefore assigned to both divisions simultaneously. Rule 2(c) and (d) harmonize the small claims procedure with the constitutional rights to due process, representation by counsel, and a jury trial. Rule 2(c) provides that a plaintiff who files a complaint with the Small Claims Division has voluntarily waived the right to representation by counsel and to a jury trial; a plaintiff who does not desire to waive such rights may file a complaint with the Civil Division. Rule 2(d) safeguards the rights of defendants by requiring transfer of a case out of the Small Claims Division, as of right, if an attorney enters an appearance for the defendant, or the defendant requests to be represented by an attorney, before the Small Claims trial begins, or the defendant demands a jury trial. Where the nature of the proceeding is affected by a counterclaim, claim of set-off or recoupment filed by the defendant, the plaintiff also has a right to request transfer to the Civil Division. Rule 2(d) further provides for a discretionary transfer for other good cause shown, such as the need to conduct discovery. Prior case law implementing protections for the right to counsel and jury trial in Small Claims cases prior to the adoption of these Rules includes: Carbana Ensemble Theater Co. v. V.I. Dept. of Human Service, ST-2012-SM-414, 2012 WL 12517840 at *1 (V.I. Super. Ct., Oct. 16, 2012); Inter Ocean Insurance Agency v. Joseph, SX-2006-CV-177, 2011 WL 13115963 (V.I. Super. Ct., Sept. 28,2011); Horton v. Govt. of the Virgin Islands, SX-2010-SM-17, 2010 WL 11415023 at *2 (V.I. Super. Ct. June 17, 2010); McCarthy v. Monte, ST-1990-CV-63, 1991 WL 138614 at *2 (D.V.I., June 17, 1991); Regan v. Estate Questa Verde Townhouses, SX-1988-CV-652, 1988 WL 1628330 at *1 (V.I. Terr. Ct., Oct. 4, 1988); Watlington v. Thompson, SX-1982-CV-715, 1983 WL 952732 (V.I. Terr. Ct., Jan. 24, 1983); Carr v. Pena, 432 F.Supp. 828 (D.V.I. 1977). Rules 2(e) and (f) are based on former Superior Court Rules 62(b) and (c).