IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
NORMAN AGNESS
Plaintiff ST 2020 SM 00122
v.
ACTION FOR DEBT/DAMAGES
FURNITURE PLUS SMALL CLAIMS
Defendant
Cite as 2021 VI Super 104
MEMORANDUM DECISION A1\D ORDER
111 THIS MATTER is bef01e the Court on a Motion to Set Aside Default Judgment submitted
by Salem Zuhdi, repxesentative for Defendant, on August 30, 2021 Defendant states that the
default judgment enteied against it at healing on August 5, 2021 should be set aside because
Defendant had good cause to be absent and had submitted a request f01 continuance thiee days
bef01e the healing, which the Court denied at same healing Upon ieview of the mattel the Court
will deny Defendant 5 Motion and will allow f01 the prompt execution of the Writ of Execution
cum ently pending in this mattel, as explained below
BACKGROUND
112 Plaintiff filed his Complaint in this mattei on July 13, 2020, alleging that Defendant
Furnituie Plus had deliveled damaged furniture afte1 Plaintiff purchased a bed1001n set fiom
Defendant on December 9, 2019 Specifically, Plaintiff claimed that Defendant delivered a
cracked d1 essel and a bed flame containing a mismatched and ill fitting dlawer After Plaintiff
made a complaint about the damaged items, Defendant inspected the fumiture at Plaintiff’s home
on Decembei 12, 2019 and agieed to remedy the problem, removing the bed flame drawer and
stating that the correct drawer had been ordered and would be delivered by the end of January
2020 Despite multiple attempts to contact Defendant about delivering the correct undamaged
replacement furniture Plaintiff was unable to receive any response from Defendant up to the date
of filing the matter on July 13, 2020 His claim was for $5,700, the total amount he paid for the
bedroom set
113 Due to court closures as a result of the COVID 19 pandemic, the matter did not come on
for trial until March 24 2021 Salem Zuhdi was properly served with the Summons and Complaint
on Defendant s behalf on March 12, 2021 However, on the morning of the hearing, Mr Zuhdi
called the Court and requested a continuance, stating that he had just been required to leave the
territory due to a family member 5 medical emergency The Court granted said request but told
Agness v Fumituie Plus 2021 VI Super 104
ST 2020 SM 00122
MemOiandum Decision and Oidei
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Defendant telephonically to submit proof of travel to the Court as soon as possible Plaintiff
appeared at the hearing and was ordered to return for hearing on June 2, 2021
114 Defendant was not found for sewice for the June 2, 2021 hearing 01 for its June 10, 2021
successor, though Plaintiff appealed at both hearings The matter was then scheduled for a fourth
hearing date on August 5, 2021 Defendant was served through a “Mr Salem” working at
Defendant 5 business location on July 1, 2021 At the August 5, 2021 hea1ing, Plaintiff appealed
pro se but Defendant did not appear, despite being properly served
15 At tiial, the Court obseived that Salem Zuhdi had sent a letter to the Court on August 2,
2021 requesting a continuance of the matter due to his absence fiom the territory f01 medical
masons The Court denied his Motion for Continuance 0n the 1ec01d, noting that it had already
gianted Defendant an emeigency continuance fiom the earlier Maich 24, 2021 couit date The
Couit furthel observed that Defendant 5 Motion submitted three days before the trial date was
untimely undei Vi1 gin Islands law, as any motion f0! continuance must be filed and sewed not
less than seven days prim t0 the scheduled t1ial exclusive of weekends and legal holidays V I
R CIV P 6 3(d) 6(a)(1)(B)
16 Upon finding that Defendant had been duly sewed yet failed to appear, the Court enteled
Defendant s appeaiance by default and heard the swom testimony of the Plaintiff Aftei healing
Plaintiff’s testimony and leviewing the documents admitted into evidence the Court enteled its
facts of finding and conclusions of law on the ICCOld The Court found in favor of the Plaintiff and
against the Defendant in the amount of $5,700 plus $100 in court costs, enteiing 3 Judgment
01dexing same on August 10, 2021 On September 9, 2021, Plaintiff filed a Praecipe with the
Court, stating that Defendant had made no payments on the debt, and a Wiit of Execution was
issued theieon on Septembei 28, 2021 Said Writ remains outstanding
DISCUSSION
17 Rule 60(b) (c) of the Virgin Islands Rules of Civil Procedure govems parties ability to
seek ielief from judgments, including default judgments
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding On
motion and just terms, the court may relieve a party 01 its legal representative from
a final judgment, order, or proceeding for the following reasons
(1) mistake, inadvertence, surprise, or excusable neglect
(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (Whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party,
Agness v Fuinituie Plus 2021 VI Super 104
ST 2020 SM 00122
Memorandum Decision and Order
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(4) the judgment is void;
(5) the judgment has been satisfied, released, or dischaiged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief
(c) Timing and Effect of the Motion
(1) szmg A motion under Rule 60(b) must be made within a reasonable
time and for reasons (1), (2), and (3) no mow than a year after the
entry of the judgment or order or the date of the proceeding
(2) Effect on Fmalzty The motion does not affect the judgment s finality or
suspend its opeiation
118 In this instance, the Court finds that Defendant 3 Motion f01 relief was timely filed under
Rule 60(0), as it was received on August 30 2021, less than three weeks aftei entiy of the Couit 8
Judgment Howevei, the Court does not find that Defendant has met any of the giounds for relief
delineated in Rule 60(b) Defendant 5 defense is meiely that it had a reasonable excuse for
neglecting to appeai at either of the healings (on March 24 2021 and August 5, 2021) f01 which
it was pioperly sewed This a1 gument, theref01e best falls under Rule 60(b)(1) mistake,
inadveitence, suiprise, 01 excusable neglect
119 In detennining whethei to set aside a default judgment f01 excusable neglect under Rule
60(b)( 1), the Court considers three factors [(1)] whethei vacating the default judgment will visit
piejudice on the plaintiff, [(2)] whethei the defendant has a merit01ious defense, and [(3)] whethei
the default was the iesult of the defendant's culpable conduct Biycm v Blyan, Supei Ct Civil
No ST 14 CV 316 2016 V l LEXIS 44 at *13 (VI Supei Ct Api 13 2016) (intemal citation
omitted) In the instant mattei, the Court finds that none of these thiee factms weigh in
Defendant’s favor
1110 Under the fiist fact01, granting Defendant s Motion for ielief would be paiticulai 1y
piejudicial against Plaintiff in this matter due to the extended length of time the matter has been
pending and the number of times Plaintiff has appeared bef01e the Court to present his case Small
claims matters are intended to provide simple, speedy, and inexpensive” resolutions to civil
claims not exceeding $10,000 V I SM CL R 1(d) Despite such intent, the instant matter was
pending before the Court for ovei a year before judgment was entered The delay was partially
due to the COVID l9 pandemic, but it was also due to Defendant 5 failure to appear at multiple
hearings, instead making last minute excuses for its absence and requesting further continuances
Plaintiff appeared before the Court four times over the course of several months and presented a
straightforward case supported by ample evidence The Court finds that to set aside its Judgment
at this time would unquestionably Visit prejudice upon this particular Plaintiff
Agness v Fuinitule Plus 2021 VI Super 104
ST 2020 SM 00122
Memorandum Decision and Oidei
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1111 Under the second factor, Defendant 5 Motion must have provided some melitorious
defense that would support the Court 5 finding that the Judgment should be set aside
To successfully establish a meritorious defense, a defendant must show that
the ‘allegations of [his] answer, if established on trial, would constitute a complete
defense to the action ‘ [A] defendant does not have the right to have a default
judgment set aside automatically upon alleging a defense, ’ but must instead ‘ set
forth with some specificity the grounds for his defense ” The Court must essentially
be convinced that vacating the judgment [would] not be an empty exercise or a
futile gestuie ”
Banco Populai de Fuel to RICO v Hedlmgton Supei Ct Civil No ST 17 CV 178, 2019 VI
LEXIS 72 at 11 (V 1 Super Ct Maich 18 2019) (internal citations omitted)
$12 Upon leview, the Court can find no meritorious defense provided in Defendant s Motion
for relief No arguments whatsoeve1 ale p1 esented on the merits of the mattei iathei, Defendant
only defends against the entiy of judgment in its absence due to its claim that such absence was
excusable The Court therefore finds the quuired meritorious defense under the second fact01
wholly lacking in this mattei
1113 Finally, undei the third fact01 the Court finds that the default in this inattei was, indeed, a
iesult of Defendant s culpable conduct Defendant s lepiesentative, Salem Zuhdi, was propel 1y
sewed bef01e two of this mattei s foul court beatings As stated above, he did not appeai at the
fist on Maich 24 2021, allegedly due to a familial medical emeigency, which he only informed
the Court of on the moming of the healing and f01 which he nevei submitted any evidence, despite
the Court 5 instmction that he do so M1 Zuhdi did not appeal at the August 5 2021 hearing,
despite being sewed ovei one month befOiehand, again due to claims of a familial medical
emergency keeping him off island When informed by court staff by phone that he could appear
telephonically or via videoconference, M1 Zuhdi claimed that he had left all documents pertaining
to the case and his defense on island and had no way of accessing them
1114 The Court simply cannot find Defendant faultless in these excuses Defendant was made
aware of this matter on March 12, 2021, when Mr Zuhdi was first served with the Complaint and
Summons, and thereafter had nearly five months before the final August 5, 2021 hearing to collect
documents, make arrangements to appear virtually, have necessary evidence sent electronically to
the essential parties, or take any other of various options available to it to ensure that any proper
representative might appear ezther Virtually or m person before the Court on August 5, 2021 In
fact, given the difficulty Court Marshals have had in serving Defendant throughout this matter
reporting that representatives at Furniture Plus 3 business location repeatedly refused or evaded
service, the Court must conclude that Defendant has been actively attempting to avoid judgment
Agness V Furnituie Plus 2021 VI Super 104
ST 2020 SM 00122
Memorandum Decision and 01de1
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in this matter The Court therefore finds that default in this action was primarily a result of
Defendant s culpable conduct
1115 Given the above analysis and findings, the Court concludes that Defendant 5 Motion to Set
Aside Default Judgment has presented no meritorious defense, no excusable neglect, and no other
reason for the Court to set aside the Default Judgment entered on August 10, 2021 The Court will
therefore deny Defendant 8 Motion Additionally, the Court will ieiterate that there are no
authorized stays of any writs of execution issued in this matter, and that any and all such writs may
be executed in good coulse and without delay
1116 The Court being fully satisfied in the p1emises, it is hereby
ORDERED that Defendant 5 Motion to Set Aside Default Judgment is DENIED and it
is further
ORDERED that copies of this Order shall be directed to the parties herein and to the Office
of the Territorial Marshal
[:7 /
}
Dated Octobei [3 2021 /
III
enior Sitting Magistrate Judge
Superior Court of the Virgin Islands
ATTEST S Ct Misc No 2021 0020
TAMARA CHARLES
Clerk of th C urt
By fix: £12m
COLLEEN SALEM
Senior Deputy Clerk [0 // S /2021