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

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.