IN THE SUPREME COURT OF THE VIRGIN ISLANDS OPINION OF ...

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Watts v. Two Plus Two, Inc.S.Ct. Civ. No. 2007-127Concurring OpinionPage 4 of 23A September 18, 2007 hearing was held on Appellee’s Motion to Dismiss forFailure to Prosecute. On the day of the hearing, Bell appeared pro se and promptly filed hisNotice of Joinder to join in Two Plus Two’s Motion to Dismiss for Failure to Prosecute. Inan October 17, 2007 Order, the trial court granted Appellees’ Motion to Dismiss this case,purportedly because of Appellant’s failure to prosecute. This appeal ensued.II.JURISDICTION“The Supreme Court shall have jurisdiction over all appeals arising from finaljudgments, final decrees or final orders of the Superior Court . . .” V.I. CODE ANN. tit. 4,§ 32(a). On November 14, 2007, Appellant timely filed an appeal of the trial court’sOctober 17, 2007 Order.III.STANDARD <strong>OF</strong> REVIEWThe Superior Court’s order dismissing Appellant’s case based on a failure toprosecute is reviewed for an abuse of discretion. Briscoe v. Klaus, 538 F.3d 252, 257(3d Cir. 2008) (“We review a [trial court’s] decision to dismiss a plaintiff’s casepursuant to Federal Rules of Civil Procedure 41(b) for an abuse of discretion.”) (citingEmerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002)).IV.ISSUEWhether the Superior Court abused its discretion when it granted Appellees’Motion to Dismiss for Failure to Prosecute.
Watts v. Two Plus Two, Inc.S.Ct. Civ. No. 2007-127Concurring OpinionPage 5 of 23V. DISCUSSIONThe Federal Rules of Civil Procedure 3are explicit in providing the basis forAppellees’ Motion to Dismiss this case. Specifically, Rule 41(b) of the Federal Rules ofCivil Procedure states that “[i]f the plaintiff fails to prosecute or comply with [the FederalRules of Civil Procedure] or a court order, a defendant may move to dismiss the action orany claim against it.” However, I am mindful that dismissal for failure to prosecute is asanction of last resort. Ecclesiastes 9:10 -11-12, Inc. v. LMC Holding Co., 497 F.3d 1135,1143 (10th Cir. 2007); Sealed Appellant v. Sealed Appellee, 452 F.3d 415, 417 (5th Cir.2006) (there must be a clear record of delay or contumacious conduct by the plaintiff towarrant dismissal of the case for failure to presecute).The United States Court of Appeals for the Third Circuit (“Third Circuit”)instructs that before a trial court dismisses a case for failure to prosecute, the trial courtmust consider several cogent factors and must make a factual evaluation of each factor.Specifically, the Third Circuit applies the Poulis factors 4 to determine whether a lowercourt abused its discretion in dismissing a case for failure to prosecute or to comply witha court order, pursuant to Rule 41(b). Briscoe, 538 F.3d at 258 (citing Poulis v. StateFarm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984)); Adams v. Trustees of the N.J.Brewery Employees Pension Trust Fund, 29 F.3d 863, 873 (3d Cir. 1994) (citationomitted).3 The Federal Rules of Civil Procedure are applicable to the Superior Court through Rule 7 of the Rules of theSuperior Court.4 This Court applied the Poulis factors in a very recent decision, Halliday v. Footlocker Specialty, Inc.,S.Ct. Civ. No. 2009-053, 2010 WL1576436 (V.I. Apr. 12, 2010), in which we directed the Superior Courtto balance the Poulis factors in assessing whether an action should be dismissed for failure to prosecute.
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IN THE SUPREME COURT OF THE VIRGIN ISLANDS OPINION OF ...

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