IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
*************
IRIS SACKSTEIN and STUART )
SACKSTEIN ) CASE NO ST 2017 CV 00284
)
Plaintiffs, )
) ACTION FOR BREACH OF
v ) CONTRACT DECLARATORY
) JUDGMENT INJUNCTIVE RELIEF
WATERGATE VILLAS WEST d/b/a )
SEA CLIFF VILLAS ) JURY TRIAL DEMANDED
)
Defendant )
Cite as 2021 VI Super 26U
MEMORANDUM OPINION AND ORDER
1|] Before the Court are
1 Motion to Compel Discovery Responses (‘ First Motion to Compel ), which was filed on
March 2 2018
2 Response to Plaintiff’s Motion to Compel, which was filed on March 19, 2018,
3 Second Motion to Compel, which was filed on April 20, 2018
4 Opposition to Plaintiffs Second Motion to Compel, which filed on May 7, 2018
5 Reply to Opposition to Second Motion to Compel which was filed on June 4, 2018,
6 Application for Attorney 5 Fees and Costs ( First Motion for Fees ’) which was filed on
July 25 2018
7 Application for Attorney 5 Fees and Costs ( Second Motion for Fees ’), which was filed
on August 2 2018'
8 Opposition to Plaintiffs Application for Attorney 5 Fees and Costs, which was filed on
August 14 2018 and
9 Reply to Defendant 3 Opposition to Plaintiffs Application for Attorney 5 Fees and Costs,
which was filed on September 5, 20l8
112 For the reasons stated below the Court will only address the Second Motion for Fees
Additionally, the Court will grant the Second Motion for Fees in part and award the Plaintiffs
One Thousand Dollars ($1 000 00) in fees
I BACKGROUND
113 On June 27, 2017 Plaintiffs Iris Sackstein and Stuart Sackstein (collectively referred to
hereinafter as the Sacksteins ) filed a Verified Complaint against Watergate Villas West d/b a
Sea CliffVillas ( Sea Cliff Villas ) The Verified Complaint alleges in part that Sea Cliff Villas
has failed to
Sackstem e! a! v Watergate Villas West d/b/a Sea Cllff Vlllas 2021 VI Super 26U
Case No ST 2017 CV 00284
Memorandum Opinion and Order
Page 2 of 6
comply with the Bylaws and other applicable instruments, in that [Sea Cliff
Villas has] failed to provide the complete information required by the Bylaws,
and [Sacksteins], as unit owners, cannot determine how, where, and when their
condo association fees, special assessments, monthly assessments, and other
charges are being applied because of Defendant’s failures to comply with the
Bylaws, or whether the charges are being properly applied '
114 On December 11, 2017, the Sacksteins propounded their First Request for Production of
Documents 2 Having not received the responses in thirty (30) days as required, the Sacksteins
served a demand letter on counsel for Sea Cliff Villas on January 19, 2018 3 On January 24, 2018,
the parties met and conferred in person and counsel for Sea Cliff Villas agreed to provide the
responses by February 15 2018 On February 21 2018 Sea Cliff Villas responded to the First
Request for Production of Documents 4 On March 2, 2018, and before receiving Sea Cliff Villas
responses, the Sacksteins filed their first Motion to Compel Discovery 5
115 On March 23, 2018, the Sacksteins served their second demand letter on Sea Cliff Villas
counsel 6 On April 20, 2018 the Sacksteins filed their Second Motion to Compel In the Second
Motion to Compel, the Sacksteins argue that Sea Cliff Villas responses are woefully incomplete
and intentionally evasive and that Sea Cliff Villas only produced two (2) pages of documents in
response to seventy five (75) separate requests for production 7
T6 On July 5, 2018, this matter came on for a post mediation status conference The Court,
from the bench, granted the Second Motion to Compel and ordered Sea Cliff Villas to supplement
its responses to the First Request for Production of Documents in accordance with V I R CIV P
26(a)
17 On July 25 2018 the Sacksteins filed their First Motion for Fees On August 2 2018 the
Sacksteins filed their Second Motion for Fees On August 14, 2018, Sea Cliff Villas filed its
Opposition to Plaintiffs Application for Attorney 5 Fees and Costs On September 7, 2018, Sea
Cliff Villas filed Notice of Service of Defendant Watergate Villas West d/b’a Sea Cliff Villas
Supplemental Responses to Plaintiff‘s Request for Production of Documents to Defendant On
November 2, 2018, Sea Cliff Villas filed Notice of Service of Defendant Watergate Villas West
d/b a Sea Cliff Villas Second Supplemental Responses to Plaintiff‘s Request for Production of
Documents to Defendant
' Verified Comp] 1] 21
’ Notice of Serv of P15 Iris Sackstein and Stuart Sackstein’s First Req for Produc of Docs , Dec 1 l, 2017
3 VI R ClV P 37
4 Notice of Serv 0f Def Watergate Villas West d/b a Sea Cliff Villas Resp to Pl 5 Req for Produc of Docs to
Def Feb 21 2018
5 ‘On March 5, 2018, [the Sacksteins] finally received discovery responses from [Sea Cliff Villas] dated Feb 21,
2018 or twelve days prior to receipt Second Mot to Compel
6 Second Mot to Compel, Ex C
7 Second Mot to Compel 2
Sackstem e! a! v Watergate Villas Wes! d/b/a Sea Cliff Villas 2021 VI Super 26U
Case No ST 2017 CV 00284
Memorandum Opinion and Order
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{[8 The First Motion for Fees and the Second Motion for Fees contain exact arguments To
avoid redundancy, the Court will only address, the recently filed, Second Motion for Fees In the
Second Motion for Fees, the Sacksteins argue that they are entitled to Five Thousand Dollars
($5,000 00) in an award for attomey’s fees and costs associated with the filing of the First Motion
to Compel and the Second Motion to Compel 8
[1 LEGAL STANDARD
1|9 Pursuant to V I R Civ P 37(a)(5)(A)
If a motion to compel is granted or if the disclosure or requested discovery is
provided after the motion was filed the court must, after giving an opportunity
to be heard, require the party or deponent whose conduct necessitated the
motion the party or attorney advising that conduct, or both to pay the movant's
reasonable expenses incurred in making the motion, including attorney's fees
But the court must not order this payment if
(i) the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was substantially
justified or
(iii) other circumstances make an award of expenses unjust
[II ANALYSIS
A The Court will deny the First Motion to Compel as Moot
1110 The Court will deny the First Motion to Compel as moot Given that the parties filed the
Second Motion to Compel, which is compelling the production of the same documents as the First
Motion to Compel, the Court is without reason to address both motions On July 5, 2018, the
Court granted the Second Motion to Compel and ordered Sea Cliff Villas to supplement their
responses to the First Request for Production of Documents Thus, the Court will next address the
motion for attorney 5 fees
B The Court will only address the Second Motion for Fees
1111 The Sacksteins seek an award of attorney’s fees and costs associated with the filing of both
the First Motion to Compel and the Second Motion to Compel The Sacksteins argue that ‘ [a]n
award of attorney 3 fees and costs is especially appropriate here where the [Sacksteins], as unit
owners, are essentially funding both sides of the litigation through payment of association fees,
charges, and assessment ’9
3 Appl for Attorney 5 Fees and Costs July 25 2018
9 Appl for Anomey 3 Fees and Costs Aug 2, 2018 The Court must note that the itemized charges of services
attached to the Application for Anomey 5 Fees and Costs only equate to Three Thousand Nine Hundred Dollars
($3 900 00)
Sackstem er a! v Watergate Villas West d/b/a Sea Cliff Villas 202] VI Super 26U
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Memorandum Opinion and Order
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In its opposition, Sea Cliff Villas avers that it would be unjust to award the Sacksteins attorney 3
fees and costs associated with the filing of the Second Motion to Compel because the Sacksteins
failed to make the necessary arrangements for a discovery conference in accordance with V I R
CIV P 37 1(c)( 1) Sea Cliff Villas further argues that under V I R Clv P 26(b)(2)(D) it was
not required to produce documents already provided to the Sacksteins Therefore, the Sacksteins
should not be entitled to fees for the filing of the Motions to Compel
1 The Court will not award fees associated with the filing of the First Motion to
Compel
1[12 The Court finds that an award of fees associated with the filing of the First Motion to
Compel is unjust '0 As explained above, the Court will deny the First Motion to Compel as moot
While the documents were provided after the deadline agreed upon by the parties at the meet and
confer the Certificate of Service states that the documents were served on February 21 2018 Sea
Cliff Villas provided the documents before the First Motion to Compel was filed Furthermore,
V I R ClV P 37(a)(5) neither provides nor do the Sacksteins offer any basis that would make
an award of fees just under these circumstances Accordingly, the Court will deny in part the
Second Motion for Fees to the extent it moves the Court for reasonable expenses incurred in the
making of the First Motion to Compel ”
2 The Court will award fees associated with the filing of the Second Motion to
Compel
{[13 Sea CliffVillas argues that the Sacksteins failed to arrange a meet and confer prior to filing
the Second Motion to Compel V I R Civ P 37 l mandates the party requesting resolution of
a discovery dispute to serve a letter on other counsel and make any necessary arrangements for a
conference In this circumstance, the Court finds that the January 24, 2018 meet and confer was
satisfactory and that the parties need not meet and confer again regarding the production of the
same documents '2
1114 Here, the Sacksteins counsel served the second demand letter on March 23, 2018,
regarding the same discovery annotated in the January 19, 2018 demand letter In the March 23,
2018 demand letter, the Sacksteins only sought supplementation of the production of documents
that were not responsive The Sacksteins did not seek additional discovery Accordingly, the
Court finds the Sacksteins did not need to arrange a formal conference regarding the same
discovery
'°Vl R ClV P 37(a)(5)(A)(iii)
" VI R CW P 37(a)(5)(A)
' Abdullahv Abdel Rahman Super Ct Civ No ST 13 CV 227 2015 WL 5440341 at ‘4 (V! Super Ct Sept 8
2015) (unpublished) ( While arranging a second formal meet and confer conference with Plaintiff would have been
unnecessary if the February 5 2015 meeting was a proper meet and confer here Attorney Rich filed a Second
Amended Request for Production including new and additional documents and failed to arrange for a formal meet
and confer regarding the Second Amended Request )
Sackstem et al v Watergate Villas Wes! d/b/a Sea OW Villas
2021 VI Super 26U
Case No ST 2017 CV 00284
Memorandum Opinion and Order
Page 5 of 6
1115 Since the Second Motion to Compel will be granted, the Court must determine whether an
award of attorney 5 fees and costs is appropriate In determining the reasonableness of attomey’s
fees and costs, the Court must calculate the lodestar amount ‘3 The lodestar amount is established
“by determining the number of hours worked by counsel and the value of his services '4 To
determine the reasonableness of the lodestar amount, the Court considers factors such as (l) the
time and labor required, (2) the novelty and difficulty of the issues involved (3) the level of skill
needed to properly conduct the case, (4) the customary charges of the bar for similar services, (5)
the amount involved in the controversy; (6) the benefits resulting to the client from the services,
and (7) the contingency of compensation '5
1116 The Court finds that other circumstances make an award of $5,000 00 in fees unjust '6
First, the Sacksteins counsel, Attorney Matthew Reinhardt, submitted an itemized application
totaling only $3,900 00 in fees incurred as a result of filing both the First Motion to Compel and
Second Motion to Compel Second, the Sacksteins Second Motion to Compel, consisting of two
pages, is not sufficiently detailed for the Court to discern which charges for services were
specifically incurred as a result of the Second Motion to Compel '7 Third, the Court will exclude
time entries that are either vague or unclear as to which Motion to Compel they apply '8 Finally,
the Court will exclude time entries that are not incurred for the making of the motion [to
compel] ”'9
{[17 However, in reviewing the itemization submitted by Attorney Reinhardt, the Court finds
that the only applicable fees and costs related to the filing of the Second Motion to Compel is
6/4/18 Prepare and file Reply to Opposition to Second Motion to Compel
1118 Considering ‘ the amount of fees to be awarded to the prevailing party [pursuant to 5
V I C § 541] is intended to be an indemnification for a fair and reasonable portion and not for
the whole amount charged by the attorney, ’ the Court will reduce the lodestar accordingly 2° The
Court finds that the hourly rate of Two Hundred Fifty Dollars ($250 00) charged by Attorney
Reinhardt for legal services is fair and reasonable ” Moreover, the Court finds that the 4 00 hours
expended for replying to the Second Motion to Compel is reasonable, as such topic is neither novel
‘3 Guardian Ins Co v Estate ofnght David Super Ct Civ No ST 08 CV 189 2015 WL 5782098 at ‘7 (V1
Super Ct Sept 30 2015) (unpublished) ( While Plaintiffis not a prevailing party under 5 V I C § 541 the Court
is guided by Virgin Islands jurisprudence calculating the lodestar[ ] )(citations omitted)
'4 Isaacv Crichlow Super Ct Civ No SX 12 CV 065 2016 VI LEXIS 145 *1 (VI Super Ct Sept 29 2016)
(unpublished)
l5 [d
I6VI R CIV P 37(a)(5)(A)(iii)
I7 Id
'8 Chapav Sepe Super Ct Civ No ST 12 CV 504
2013 WL 8609242 at *1 2 (VI Super Ct June 3 2013)
(unpublished) The Court excluded 2 20 2018 (MRS 20 hours) 3 02 2018 (MRS 1 50 hours) 3 15 18 (MR5
2 00 hours)’ 3/22/2018 (MRS 3 50 hours) 4 12 18 (MRS 2 00 hours)
l"v1 R Civ P 37(a)(5)(A)
0 Chapa
2013 WL 8609242 at ‘2
' Isaac
2016 WL 5468371 at ‘3
Sackstem er al v Watergate Villas West d/b/a Sea Cliff Villa:
2021 VI Super 26U
Case No ST 2017 CV 00284
Memorandum Opinion and Order
Page 6 of 6
nor complex 22 Thus, the Court will award the Sacksteins $1,000 00 in fees incurred for 4 00 hours
of legal services
Accordingly, it is hereby
ORDERED that the Motion to Compel Discovery ReSponses, filed on March 2, 2018, is
DENIED as moot' and it is further
ORDERED that the Second Motion to Compel filed on April 20 2018 is GRANTED
and it is further
ORDERED that attorney 5 fees in the amount of One Thousand and 00/100 Dollars
($1,000 00) are awarded in favor of Plaintiffs Iris Sackstein and Stuart Sackstein and against
Defendant Watergate Villas West d/bla Sea Cliff Villas, and it is further
ORDERED that the Application for Attorney 8 Fees and Costs filed on July 25 2018 is
DENIED as moot because the Court addressed Plaintiffs identical Application for Attorney 5
Fees and Costs filed on August 2, 2018; and it is further
ORDERED that the Application for Attorney 5 Fees and Costs filed on August 2 2018
is GRANTED to the extent it requests fees associated with the filing of the Second Motion to
Compel filed on April 20 2018 and it is further
ORDERED that the Application for Attorney 5 Fees and Costs filed on August 2 2018
is DENIED to the extent it requests an award of fees associated with the filing of the Motion to
Compel Discovery Responses filed on March 2, 2018; and it is further
ORDERED that a copy of this Memorandum Opinion and Order shall be directed to
counsel of record 1‘
DATED 5 (512074 W bamboo
DENISE M FRA COIS
Judge of the Superior Court of the Virgin Islands
ATTEST
TAMARA CHARLES
Clerk of the Court
By Wu @Qfi
,- LOR! BOYNES
X0 ChiefDeputy Clerk _3_ i ..2_02/
22 Id at *2
’3 Plaintiffs are represented by Ryan C Meade and Matthew Reinhardt, Esquires (Quintairos, Prieto Wood &
Boyer P A ) and Defendant is represented by Richard P Farrelly, Esquire (Birch de Jongh & Hindels PLLC)