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 22 of 23counsel was grossly derelict in handling Appellant’s lawsuit after the trial court entered itsScheduling Order. Fortunately, the trial court’s February 15, 2007 Scheduling Orderafforded Appellant’s counsel a second opportunity to expeditiously move the case towardsa final resolution and afforded counsel some deliverance from a claim of failure toprosecute the case. I must underscore the pivotal fact that at the time of dismissal of thecase, there were unexpired dates remaining in the trial court’s Scheduling Order, thepurpose of which was to expeditiously move the case towards a final resolution, either bymediation or trial.G. Balancing the Six Poulis FactorsIn its analysis and application of the Poulis factors, the Third Circuit has repeatedlyopined that “evidence of prejudice to an adversary would bear substantial weight in supportof a dismissal for default judgment.” Briscoe, 538 F.3d at 259 (citing Adams, 29 F.3d at873–74 (internal quotations omitted)). In this case, Two Plus Two was prejudiced andAppellant exuded consistent patterns of dilatoriness. However, as I stated earlier,dismissing the case for want of prosecution is a sanction of last resort, which should not beexercised under the circumstances of this case, after considering the factors which weighagainst dismissal, to wit: the extent of the personal responsibility of Appellant, lack ofevidence of willfulness or bad faith, and the meritoriousness of Appellant’s claim.Importantly, after considering the last Poulis factor, the effectiveness of alternativesanctions to dismissing the case, a monetary or alternate form of sanction imposed uponAppellant’s counsel would have been an effective alternative sanction to dismissingAppellant’s lawsuit, which he could not refile because of the statute of limitations.
Watts v. Two Plus Two, Inc.S.Ct. Civ. No. 2007-127Concurring OpinionPage 23 of 23VI.CONCLUSIONBalancing all the Poulis factors, Appellant’s dilatoriness in prosecuting this caseand failing to timely provide discovery to Appellees constituted some prejudice to TwoPlus Two, thereby satisfying two requisite Poulis factors. However, these shortcomings areclearly attributable to Appellant’s counsel’s personal conduct in this case and do notimplicate Appellant or his conduct. Furthermore, I cannot adduce any evidence of bad faithor willful conduct by Appellant’s counsel. Importantly, the availability of the imposition ofmonetary sanctions against Appellant’s counsel constitutes an appropriate alternativesanction to dismissing the case. Therefore, a careful application of the Poulis factorsdisfavors the drastic sanction of dismissing this case for failure to prosecute.For these enumerated reasons, I conclude that the Superior Court abused itsdiscretion. Therefore, I would reverse the trial court’s October 17, 2007 Order dismissingthis case and remand the case to the trial court for further proceedings consistent with thisopinion, including reinstating Appellant’s case and for consideration of sanctions againstAppellant’s counsel.Dated this 24 th day of August, 2010 __________/s/_____________IVE ARL<strong>IN</strong>GTON SWANAssociate Justice
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Page 11 and 12: SWAN, Associate Justice, concurring
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IN THE SUPREME COURT OF THE VIRGIN ISLANDS OPINION OF ...

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