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

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Watts v. Two Plus TwoS. Ct. Civ. No. 2007-0127Opinion of the CourtPage 2 of 10I. FACTUAL AND PROCEDURAL BACKGROUNDOn May 29, 2003, Watts initiated civil proceedings against Appellees in the SuperiorCourt, seeking damages for injuries arising from a December 29, 2002 altercation between himand Bell in front of Two Plus Two’s business establishment. Two Plus Two submitted itsanswer on June 6, 2003, and on July 25, 2003 notified the Superior Court that it had demandedproduction of documents from Watts. However, Watts’s counsel did not respond to this demand.In an October 26, 2006 Order, the Superior Court, observing that the matter had“remained dormant for over three (3) years,” ordered “that the parties take the appropriate stepsto move this case forward within thirty (30) days, failing which this matter will be dismissed.”On October 31, 2006 and November 6, 2006, Watts’s counsel notified the Appellees and theSuperior Court that he had scheduled Bell’s deposition. Nevertheless, when Watts’s counseldeposed Bell on November 16, 2006, counsel for Two Plus Two did not appear.The Superior Court sua sponte entered two orders in the case on February 16, 2007. Inthe first order, the Superior Court referred the matter to mediation. However, the second orderestablished various scheduling deadlines, including the mediation deadline, dates for conclusionof factual discovery, submission of expert disclosures and depositions, filing of dispositivemotions, and the dates of calendar call, jury selection, and trial. In its scheduling order, theSuperior Court noted “that any party’s failure to proceed as ordered will result in the Courtimposing appropriate sanctions.”On May 5, 2007, Two Plus Two—now represented by a different attorney—sent a letterto Watts’s counsel which (1) demanded that Watts’s counsel provide the initial discoverydisclosures mandated by Federal Rule of Civil Procedure 26; (2) inquired as to the outstandingresponse to the July 25, 2003 demand for discovery; (3) requested that Watts and any of his
Watts v. Two Plus TwoS. Ct. Civ. No. 2007-0127Opinion of the CourtPage 3 of 10witnesses be deposed on May 18 or May 21-25, 2007; and (4) suggested three proposedmediators. After having received no response to the May 5, 2007 letter, Two Plus Two’s counselsent Watts’s counsel a second letter on June 13, 2007—which contained a copy of the May 5,2007 letter—and also faxed both letters to Watts’s counsel. However, Watts’s counsel still didnot submit a response.Two Plus Two filed a motion to dismiss Watts’s complaint on July 16, 2007, on the basisthat Watts had failed to prosecute the action because the deadlines for factual discovery andWatts’s expert disclosures established in the February 16, 2007 scheduling order had lapsedwithout Watts taking any action to move the litigation forward. On July 23, 2007 and August 2,2007, respectively, Watts filed his expert report and submitted his Fed. R. Civ. P. 26 initialdisclosures. Watts also filed an opposition to Two Plus Two’s motion to dismiss on August 2,2007, in which he argued that his counsel never received any correspondence from Two PlusTwo, including the July 25, 2003 demand for discovery and the May 5, 2007 and June 13, 2007letters.The Superior Court scheduled a hearing on Two Plus Two’s motion on September 18,2007. Shortly before the hearing, Bell filed a pro se motion to join in Two Plus Two’s motion todismiss for failure to prosecute. At the hearing, Watts’s counsel informed the Superior Courtthat he had also never received either of the Superior Court’s February 16, 2007 Orders, and thatit was a common practice for him not to receive Superior Court orders in other matters. Watts’scounsel also argued that dismissal for failure to prosecute was not appropriate because he hadfurthered the case by deposing Bell on November 16, 2006. However, Two Plus Two’s counselclaimed that Two Plus Two had never received notice of this deposition. In an October 19, 2007Order, the Superior Court granted the Appellees’ motion and dismissed Watts’s action for failure
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Page 11 and 12: SWAN, Associate Justice, concurring
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