IN THE SUPREME COURT OF THE VIRGIN ISLANDS OPINION OF ...
IN THE SUPREME COURT OF THE VIRGIN ISLANDS OPINION OF ... IN THE SUPREME COURT OF THE VIRGIN ISLANDS OPINION OF ...
Watts v. Two Plus Two, Inc.S.Ct. Civ. No. 2007-127Concurring OpinionPage 18 of 23of time to respond to Appellees’ Motion to Dismiss for Failure to Prosecute, even thoughthe trial court did not dismiss the case until October 2007.Nevertheless, I have considered the trial court’s October 24, 2006 Order, requiringthe parties to take appropriate steps to move the case forward within thirty days.Importantly, the October 24, 2006 Order stated that “[t]his matter has remained dormant forover three (3) years. This matter is thus subject to dismissal for lack of prosecutionpursuant to FED. R. CIV. P. 41 (b).” Appellant filed his Notice of Deposition six days later.Additionally, Appellant’s counsel provided Appellee with a Rule 26 disclosure very lateinto the proceeding. Despite these efforts, an evaluation of the complete trial recorddemonstrates Appellant’s counsel’s disconcerting history of dilatoriness.D. Evidence of Willfulness or Bad Faith“In the jurisprudence of dismissal, willfulness or bad faith is . . . required in orderfor dismissal to be within the proper scope of the court's discretion [in most cases].”Estate of Spear v. C.I.R., 41 F.3d 103, 112 (3d Cir. 1994). Poulis describes willfulness asconduct that is deliberate and contumacious, Poulis, 747 F.2d at 868-69, whereas Briscoefurther simplifies the definition of willfulness and states that it “involves intentional orself-serving behavior.” Briscoe, 538 F.3d at 262.I find no clear or direct evidence that Appellant’s counsel acted in bad faith, andthat Appellant’s counsel willfully disregarded the Scheduling Order or deliberatelydisregarded Appellees’ requests. Evidence in the trial record reflects that on at least oneoccasion in June 2007, approximately one month before Appellees filed their Motion toDismiss for Failure to Prosecute, Appellees faxed a copy of a letter to Appellant andmailed the same letter to Appellant requesting that he follow up with the Scheduling
Watts v. Two Plus Two, Inc.S.Ct. Civ. No. 2007-127Concurring OpinionPage 19 of 23Orders. Nonetheless, Appellant’s counsel vehemently maintains that he never receivedAppellees’ letters. First, evidence on the record fails to reveal adequate proof thatAppellees served Appellant with their demand for document production. Second,Appellant’s counsel vociferously and stridently maintained at the trial court’s hearing thathe never received the trial court’s Scheduling Order, while asserting that he hadencountered similar problems with receiving correspondences from the trial court. Inresponse to Appellant’s counsel’s contention, the trial court summarily rejected thisargument. Therefore, no investigation into the validity of Appellant’s counsel’s assertionthat he did not receive certain court documents was ever conducted by the trial court.E. Meritoriousness of the Claim or DefenseA claim or defense is “meritorious when the allegations of the pleadings, ifestablished at trial, would support recovery by plaintiff or would constitute a completedefense.” Briscoe, 538 F.3d at 263 (citing Poulis, 747 F.2d at 869-70) (internal quotationmarks omitted). A review of the allegations in the complaint supports a conclusion thatAppellant advances a meritorious claim.Appellant filed a five–page, six–count May 27, 2003 Complaint, which states theplace, date and time of the incident that resulted in his injuries. Appellant further describeshow, without any provocation by him and “for no explainable reason” he was assaulted byWatts, who was acting within the scope of his employment with Two Plus Two. Appellantexplicitly invokes the theory of respondeat superior in his complaint. Appellant expoundshow he has “suffered great pain of body and mind” as a direct and proximate result ofBell’s unprovoked assault upon him. Lastly, Appellant sets forth the duty Appellees owedto him and explains how that duty was breached because of the negligence of Appellees.
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Watts v. Two Plus Two, Inc.S.Ct. Civ. No. 2007-127Concurring OpinionPage 18 of 23of time to respond to Appellees’ Motion to Dismiss for Failure to Prosecute, even thoughthe trial court did not dismiss the case until October 2007.Nevertheless, I have considered the trial court’s October 24, 2006 Order, requiringthe parties to take appropriate steps to move the case forward within thirty days.Importantly, the October 24, 2006 Order stated that “[t]his matter has remained dormant forover three (3) years. This matter is thus subject to dismissal for lack of prosecutionpursuant to FED. R. CIV. P. 41 (b).” Appellant filed his Notice of Deposition six days later.Additionally, Appellant’s counsel provided Appellee with a Rule 26 disclosure very lateinto the proceeding. Despite these efforts, an evaluation of the complete trial recorddemonstrates Appellant’s counsel’s disconcerting history of dilatoriness.D. Evidence of Willfulness or Bad Faith“In the jurisprudence of dismissal, willfulness or bad faith is . . . required in orderfor dismissal to be within the proper scope of the court's discretion [in most cases].”Estate of Spear v. C.I.R., 41 F.3d 103, 112 (3d Cir. 1994). Poulis describes willfulness asconduct that is deliberate and contumacious, Poulis, 747 F.2d at 868-69, whereas Briscoefurther simplifies the definition of willfulness and states that it “involves intentional orself-serving behavior.” Briscoe, 538 F.3d at 262.I find no clear or direct evidence that Appellant’s counsel acted in bad faith, andthat Appellant’s counsel willfully disregarded the Scheduling Order or deliberatelydisregarded Appellees’ requests. Evidence in the trial record reflects that on at least oneoccasion in June 2007, approximately one month before Appellees filed their Motion toDismiss for Failure to Prosecute, Appellees faxed a copy of a letter to Appellant andmailed the same letter to Appellant requesting that he follow up with the Scheduling
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