IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
)
GOURMET GALLERY CROWN BAY INC )
) Case No ST 2017 CV 00307
Plaintlff )
v ) JURY TRIAL DEMANDED
)
CROWN BAY MARINA L P and FRANK S ) INTENTIONAL
ELECTRIC ) DESTRUCTION OF
) PROPERTY
) NEGLIGENCE
Defendants )
)
2021 VI Super 11U
MEMORANDUM OPINION
1H THIS MATTER is before the Court on Plaintiff‘s Motion to Compel Complete
and Accurate Discovery Answers from Defendant Crown Bay Marina (“motion to
compel Crown Bay”) 1 and Plaintiff’s Motion to Compel Complete and Accurate
Discovery Answers from Defendant Frank’s Electric (“motion to compel Frank’s
Electric”) 2 filed by Plaintiff Gourmet Gallery Crown Bay, Inc (“Gourmet Gallery”)
1 The motion to compel Crown Bay Marina was filed October 2, 2018, and is fully briefed
2 The motion to compel Frank’s Electric was filed July 12, 2018, and is fully briefed
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I FACTS
$2 On August 23, 2018, Gourmet Gallery filed an amended complaint against
Defendants Crown Bay Marina, L P (“Crown Bay Marina”) and Frank’s Electric 3 In
the first amended complaint, and the original complaint, Gourmet Gallery alleges
that it is a tenant under a lease for commercial property from Crown Bay Marina,
and that on October 24, 2016, it received a memorandum from Crown Bay Marina
regarding a “scheduled power outage,” which stated the following Frank’s Electric, a
local electrical contractor, would be shutting down power to the Marina later that
evenmg; that power outages would occur intermittently throughout the course of the
week; and that the “emergency generator [would] engage when the power [was] shut
down for [its] tenants ” Wthh led Gourmet Gallery to believe its 4,800 square foot
store would be powered by Crown Bay Marina’s generator However, Gourmet
Gallery alleges Crown Bay Marina failed to connect Gourmet Gallery to Crown Bay
Marina’s generator, but all other tenants were connected to the generator
{[3 In its first amended complaint, Gourmet Gallery alleges that all this occurred
while Gourmet Gallery’s generator was not working properly Additionally, in its first
amended complaint, Gourmet Gallery alleges that it hired Plan B, LLC to conduct
repairs to its generator, and that by letter dated July 28, 2016, Gourmet Gallery
requested that Crown Bay Marina hook up Gourmet Gallery to the Marina’s
3 The motion to amend was formally granted on December 19, 2019; but, the clean copy 1s attached to
Gourmet Gallery’s m0t10n filed August 23, 2018
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generator in case of emergencies Gourmet Gallery’s first amended complaint alleges
that Crown Bay Marina declined to hook Gourmet Gallery up to the generator
because it said its generator did not have sufficient capacity 4
{[4 In both complaints,5 Gourmet Gallery alleges that, as a result of not connecting
it to Crown Bay Marina’s generator, Gourmet Gallery’s products in its multiple
freezers and refrigerators spoiled in a matter of hours and it lost a significant amount
of inventory Additionally, Gourmet Gallery alleges that, as a result of not
disconnecting 0r shutting down its main electrical panel, Gourmet Gallery’s electrical
equipment suffered irreparable harm
{2’5 Gourmet Gallery alleges Crown Bay Marina and Frank’s Electric neglected to
ensure that Gourmet Gallery’s equipment and inventory would not be destroyed
while Frank s Electric performed work during the week of October 24, 2016 6 Gourmet
Gallery seeks compensatory damages for this negligence Alternatively, Gourmet
Gallery alleges that damage to its equipment and inventory was caused by Crown
4 The allegations in this paragraph are only stated in the first amended complaint, which was not
approved by the Court at the time Gourmet Galleiy filed its motion to compel However, these
allegations are relevant to Gourmet Gallery 5 claims, which are the same in the original complaint and
the first amended complaint Moreover, Gourmet Gallery argues in its motion to compel that Crown
Bay Marina has responded to discovery requests by stating that it did not have capacity to hook
Gourmet Gallery up to the generator See (Mot Compel Crown Bay 7 8) Therefore, the Court finds no
prejudice With including these allegations
0 That is, in the original complaint and the first amended complaint
6 As argued by Crown Bay Marina, Gourmet Gallery s first amended complaint was not yet granted by
the Court when Gourmet Gallery filed its motion to compel, even though Gourmet Gallery refers to
the amended complaint in its motion However, the Court granted Gourmet Gallery’s first amended
complaint December 19, 2019 Even if Gourmet Gallery’s first amended complaint had not been
granted, the Court would still grant Gourmet Gallery’s motions to compel because the Court finds the
discovery requests relevant to Gourmet Gallerys counts, which are the same in the amended and
original complaint
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Bay Marina’s intentional or reckless and wanton actions Gourmet Gallery seeks
compensatory and punitive damages for these actlons 7
1T6 Gourmet Gallery served certain discovery requests on Crown Bay Marina and
Frank’s Electric Gourmet Gallery has subsequently filed this motion to compel for
one discovery objection from Crown Bay Marina and several discovery objections from
Frank 8 Electric The objections are addressed below
II LEGAL STANDARD
$7 In deciding Whether Gourmet Gallery 5 motions to compel should be granted
or denied, the Court considers relevant portions of the Virgin Islands Rules of Civil
Procedure, below, and case law
V I R CIV P 26(b)(1)
(b) Discovery Scope and Limits
(1)Scope m General Unless otherwise limited by court order, the scope of
discovery is as follows Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense Information within this
scope of discovery need not be admissible in evidence to be discoverable
V I R CIV P 37(a)(1)
(a) Motion for an Order Compelling Disclosure or Discovery
(1) In General On notice to other parties and all affected persons, a party may
move for an order compelling disclosure or discovery The motion must include a
certificatlon that the movant has in good faith conferred or attempted to confer
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With the person or party failing to make disclosure or discovery in an effort to
obtain it Without court action
V I R CIV P 37 1
(a) Good Faith Negotiatlon Requirement Prior to filing any motion relating to
discovery pursuant to Rules 26 through 37, other than a motion relating to
depositions under Rule 30, counsel for the parties and any self represented parties
shall confer in a good faith effort to eliminate the necessity for the motion or to
ehminate as many of the disputes as possible
(b) Demanding Party's Specification Letter The party requesting resolution of
a discovery dispute shall serve a letter on other counsel identifying each lssue and/or
discovery request in dispute, stating briefly the moving party's position With respect
to each (and providing any legal authority), and specifying the terms of the discovery
order to be sought
(c) Conference Arrangements and Personal Negotlations Requirement
(1) Famlltatmg a Conference After service of the letter request, it shall be the
responsibility of counsel for the requesting party to make any necessary
arrangements for a conference
(2) Personal Dtscusswns Requirement To the extent practicable, counsel are
encouraged to meet in person at a mutually convenient location If, in the
consideration of time andjor resources, counsel agree that meeting in person is not
practicable, the conference may take place telephonically or by Video conferencing
Mail or e mail exchanges are not sufficient
(3) Completion of Negotiations Unless otherwise provided by stipulatlon of the
parties, or by written order of the court, the conference shall be completed within
15 days after the moving party serves a letter requesting such conference
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III DISCUSSION
A Motion to Compel
118 Gourmet Gallery certifies that the parties conferred in good faith before it filed
its motion to compel Neither Crown Bay Marina nor Frank’s Electric object to the
substance of Gourmet Gallery’s certifications However, Frank’s Electric argues that
Gourmet Gallery failed to follow VI R CIV P 37(a)(1) procedurally by not
“includ[ing] any separate certificate by [Gourmet Gallery]’s counsel regarding
attempts to resolve this discovery dispute Without court action ” However, Frank’s
Electric concedes that “[Gourmet Gallery] s [m]0tion include[s] a section titled as
‘Procedural Compliance With Rule 37 1’ that “accurately recites the efforts of counsel
for both parties to resolve this dispute Without court action ”
139 The V I Rules of Civil Procedure are unclear regarding whether a “separate
certificate” is required to comply with V I R CIV P 37(a)(1) See Arvidson v Buchar,
Case No ST 16 CV 410 2018 VI LEXIS 149 at *8 (VI Super Ct June 6 2018)
(unpublished) ( the current [V I R CIV P] 37 and 37 1 fail to specify whether a
good faith negotiation certification is to be included within the body of a motion to
compel or appended to it”) In Arvidson v Buchar, the Superior Court of the Virgin
Islands states that, “[i]n the future, to conserve Judicial resources, the [c]ourt asks
partles submitting motlons to compel to include their good faith negotiation
certification in one document appended to the motion to compel or within a self
contained section of the motion ’ Id at *10 In this instance, Gourmet Gallery
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included its 37(a)(1) “confer in good faith” certification in a “self contained section of
the motion to compel ” See Ld
$10 The Court finds this placement sufficient to satisfy the V I R CIV P 37(a)(1)
requirement 8 Moreover, the Court finds that the substance of Gourmet Gallery’s
good faith certifications meet the standard laid out in V I R CIV P 37(a)(1) and V I
R CIV P 37 1(a) (c)(2)
Till Under VI R CIV P 26(b)(1) [u]nless otherwise limited by court order the
scope of discovery is as follows Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party s claim or defense Information
Within this scope of discovery need not be admissible in evidence to be discoverable ”
This rule sets a low standard for gathering discovery See FLnn U Adams, Case No
ST 16 CV 752 2017 V I LEXIS 162 at *5 7 (V I Super Ct Nov 28 2017)
(unpublished) The Court considers Gourmet Gallery’s specific motions to compel
requests below 9
8 The Court is not implying that a motion to compel that does not follow Arvldson s request is deficient
on its face See Arvzdson 2018 V I LEXIS 149 at *10
9 Frank’s Electric argues that Gourmet Gallery’s statement of facts in its motion to compel do not
appear of record in this action” and that “[Gourmet Gallery] 3 [m]otion fails to provide any affidavits
or other [supporting] documents ” Frank’s Electric argues that this violates VI R CIV P 6 1(d)
However, the Court did not use Gourmet Gallery s statement of facts in its motions to compel to decide
if its discovery requests should be compelled See (Reply Mot Compel Frank’s Electric 3) (arguing that
the facts section “is entirely unnecessary for purposes of (leading the [m]ot10n to [C]ompel”) Instead,
the Court considered Gourmet Gallery’s complaint allegations and claims See V I R CIV P 26(b)(1)
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1 Demand for Production #14 Crown Bay Manna
1112 Gourmet Gallery requests that Crown Bay Marina produce “[a]ny
documentation regarding the specifications of Crown Bay Marina’s generator This
includes, but is not limited to, information regarding the amount of power generated
by the generator, the make and model, its operating requirements, the amount of
Kilowatts it produces, and its terms of use ” “Crown Bay [Marina] objects on the
basis that it is highly irrelevant, immaterial, over broad, not reasonably calculated to
lead to the discovery of admissible evidence, and not sufficiently limited in time
Crown Bay Marina’s generator is not at issue in, or relevant to, the instant case ”
1113 Gourmet Gallery alleges that only a few hours before the work was to
commence did Crown Bay Marina tell it that electrical work would be performed on
the marina and that all Crown Bay Marina tenants would be hooked up to the
generator Then, Gourmet Gallery alleges, Crown Bay Marina failed to connect the
store to the generator
114 Gourmet Gallery alleges in its motion to compel Crown Bay that Crown Bay
Marina’s generator has the capacity to power Gourmet Gallery’s store and the rest of
its tenants at the same time 10 See (Mot Compel Crown Bay 8) Whether Crown Bay
10 Additlonally, Gourmet Gallery contends that, “[t]hroughout the discovery process, [Crown Bay
Manna] has stated that its generator is not strong enough to power [Gourmet Galle1 y] and [Crown
Bay Marina]’s other tenants simultaneously, claiming that [Gourmet Gallery] therefore never could
have been hooked up to [C1 own Bay Marina]’s generator and never should have expected as much ”
Similarly, Gourmet Gallery contends that, “[Crown Bay Marina] has defended 1ts refusal to hook
[Gourmet Gallery] up to the generator during the scheduled power outage by claimmg, despite the
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Marina’s generator had capacity to power Gourmet Gallery and the other tenants is
relevant to Gourmet Gallery’s allegation in the original complaint that it “had no
reason to suspect that it would not be connected to Crown Bay Marina’s
generator ”11 Additionally, this information is relevant to Gourmet Gallery’s claims
that Crown Bay Marina intentionally, or recklessly, ruined Gourmet Gallery’s
inventory and that Crown Bay Marina acted negligently by not hooking the store up
to the generator
$15 Crown Bay Marina argues that “the only issue in [Gourmet Gallery]’s
[c]omp1aint that in any way concerns [Crown Bay Marina]’s generator is Whether
[Crown Bay Marina] was required to connect [Gourmet Gallery] to its generator”
Moreover, Crown Bay Marina argues, “[r]esolution of this issue does not require the
disclosure of the specifications of [Crown Bay Marina] s generator Rather, the issue
can be determined by the terms of the [1]lease and correspondence leading up to the
events alleged ” However, discovery need not be required for the resolution of an
issue, it need only be relevant to a party’s claims or defenses, and the Court finds that
Gourmet Gallery’s discovery request is relevant to its claims Therefore, Crown Bay
Marina must produce the responsive documents V I R CIV P 260))(1)
language in the memorandum, that its generator is not capable of powering [Gourmet Gallery] and
[Crown Bay Marina]’s other tenants ”
11 Additionally, Gourmet Gallery 5 first amended complaint alleges that Crown Bay Marina stated a
month before the repairs that its generator did not have capacity to supply power to Gourmet
Gallery and the marina’s other tenants, although Gourmet Gallery believes the generator did have
such capaCIty See(F1rst Am Compl 1H} 20 21)
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2 Interrogatory No 7 Frank’s Electric
1116 Gourmet Gallery asks if “Frank’s Electric or any of its agents or employees
aware [sic] that Gourmet Gallery’s generator was not functloning during October 24,
2016? [And] [i]f so, how was Frank’s Electric made aware?” Frank’s Electric objects
to the interrogatory, responding that the question “exceeds the scope of discovery as
[it] is not relevant to any party’s claim or defense ”12 Gourmet Gallery claims that
“Frank’s Electric owed a duty to Gourmet Gallery properly [sic] perform electrical
work within the marina in a manner that would not destroy Gourmet Gallery’s
equipment ” Additionally, Gourmet Gallery claims that “Frank's Electric breached
that duty by faihng to adequately monitor the electrical current being sent to
Gourmet Gallery's electrical equipment and to take steps to ensure that Gourmet
Gallery would be protected from surges and other damaging consequences from the
work that it was performing ” The answer to the above interrogatory would reveal
Whether Frank’s Electric knew Gourmet Gallery’s generator was inoperable and, at
the least, potentially help prove Gourmet Gallery’s claim that Frank’s Electric acted
negligently when it performed work on Crown Bay Marina, as Gourmet Gallery
1’ Frank s Electric makes the following argument in opposition to Gourmet Gallery’s motlon to
compel regardlng interrogatory Nos 7, 10 and 25 and requests Nos 7 and 9
The question of whether [Gourmet Gallery]'s own gene1 ator was operating at
the time, or not, is a matter within [Gourmet Gallery] s own knowledge Whether
Frank’s Electric had knowledge of the condition of [Gourmet Gallery] 3 generat01 is not
relevant to [Gourmet Gallery]’s vague allegation of “failing to adequately monitor the
electrical current ”
This argument does not sway the Court’s finding that these discovery requests are relevant to
Gourmet Gallery’s claim against Frank s Electric
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argues the negligence was “likely guided by [Frank’s Electric’s] negligence in
ascertaining the status of [Gourmet Gallery’s] generator ” Therefore, Frank’s Electric
will be required to answer this interrogatory
3 Interrogatory No 10 for Frank’s Electric
1H7 Gourmet Gallery asks Frank’s electric to “state all the actions [it took] to
determine whether Gourmet Gallery had a working generator or was hooked up to a
working generator before commencing work on or around October 24, 2016 ” Frank’s
Electric objects to the interrogatory, stating that the question “exceeds the scope of
discovery as [it] is not relevant to any party’s cla1m or defense ” However, the Court
finds that this interrogatory is relevant For example, if Frank’s Electric took no steps
to determine whether Gourmet Gallery was connected to a generator before
commencing the electrical work, Gourmet Gallery can potentially use this
information to argue that Frank’s Electric was negligent So, Frank’s Electric must
answer the interrogatory
4 Interrogatory No 11 for Frank’s Electric
1MB Gourmet Gallery asks Frank 8 Electric to “state all actions taken to
determine whether Gourmet Gallery’s electrical equipment, including but not limited
to its rack system, would not be damaged by the electrical surges (turning the power
on and off repeatedly) that occurred while working on the high voltage ” Frank’s
Electric objects to the interrogatory, arguing that the question “exceeds the scope of
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discovery as [it] is not relevant to any party’s claim or defense ”13 However, the Court
finds this interrogatory relevant to Gourmet Gallery’s claim that Frank’s Electric
breached its duty to “properly perform electrical work Within the marina in a manner
that would not destroy Gourmet Gallery’s equipment” “by failing to adequately
monitor the electrical current being sent to Gourmet Gallery’s electrical equipment
and to take steps to ensure that Gourmet Gallery would be protected from surges and
other damaging consequences from the work that [Frank’s Electric] was performing ”
Therefore, Frank’s Electric must answer the interrogatory
5 Interrogatory No 16 from Frank’s Electric
1119 Gourmet Gallery asks Frank’s Electric, “[W]hat type of investigation [it]
conduct[ed] to determine the type of compressor utilized by Gourmet Gallery?”
Gourmet Gallery also asks Frank’s Electric to “[s]tate in detail Why [it] did not verify
whether Gourmet Gallery had Scroll or Reciprocal compressors ” Frank’s Electric
objects to the interrogatory, arguing that the question “exceeds the scope of discovery
as [it] is not relevant to any party’s claim or defense ” Gourmet Gallery responds to
Frank’s Electric’s objection by contending, “[m]ost compressors [that are like
13 Frank’s Electric makes the following argument in opposition to Gourmet Gallery’s motion to
compel regal ding interrogatory Nos 11 and 16 and request No 14
[Gourmet Gallery]’s complaint does not allege that Frank’s Electric had any
relationship, contractual or othei wise, with [Goui met Gallery] Moreover, there is no
allegation that Frank 5 Electric had any duty to inspect [Gourmet Gallery]’s electrical
or iefrigeration equipment The information sought by these interrogatories and
requests for admissions is not relevant to the vague allegation of a failure to
“adequately monitor the electrical current ”
This argument does not sway the Court’s finding that these discovery requests are relevant to
Gourmet Gallery’s claim against Frank’s Electric
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Gourmet Gallery’s] are either Scroll or Reelprocal compressors[, and] [b]y nature,
compressors not deSIgned for rapid power surges will immediately begin to
deteriorate When experiencing sudden increases and decreases in power ”
Additionally, Gourmet Gallery explains that “[it]’s compressors, an extremely Vital
and expensive set of electrical equipment, were not designed to survive the abuse
sustained by Frank’s Electric’s negligence ” The Court finds that this
interrogatory is relevant to Gourmet Gallerys negligence claim against Frank’s
Electric Therefore, Frank’s Electric will be required to answer the interrogatory
6 Interrogatory No 21 Frank’s Electric
{{20 Gourmet Gallery asks if “Frank’s Electric ever notified Crown Bay Marina,
either orally or in writing, that Crown Bay Marina s high voltage transponder
was in need of repair or replacement?” Frank’s Electric objects to the interrogatory,
arguing that the question “exceeds the scope of discovery as [it] is not relevant to any
party’s claim or defense ” Gourmet Gallery responds to Frank’s Electric’s objection by
arguing that the condition of “Crown Bay Marina’s high voltage transponderfl
is believed to be one of the catalysts for Gourmet Gallery’s damages ” Gourmet
Gallery emphasizes that, “[u]p0n information and belief, Frank’s Electric had
notified Crown Bay that their high voltage transponder was in need of repair or
replacement ” Gourmet Gallery argues that “it is material to th[e] case whether
Crown Bay[’s] transponder was faulty or in need of repairs, and whether
Frank’s Electric had alerted Crown Bay of this fact ”
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1321 Frank’s Electric argues in its opposition that “[t]he condition of a ‘high voltage
transponder’ that was not the subJect 0f the work performed in October 2016 is not
relevant to any claim or defense in this action ”
11,22 However, the Court finds the question is relevant to Gourmet Gallery’s claims
If Frank’s Electric and Crown Bay Marina knew that the transponder needed
replacement or repair, but didn’t fix it, and then the transponder caused damage to
Gourmet Gallery’s store during Frank’s Electric’s electrical work in October 2016,
Gourmet Gallery may be able to use this fact to argue negligence Therefore, Frank’s
Electric will be required to answer the interrogatory
7 Interrogatory No 25 Frank’s Electric
{:23 Gourmet Gallery asks if “any[one] [from] Frank’s Electric had any contact
with any[one] from Plan B, LLC since January 1, 2016 regarding Gourmet
Gallery’s generator in any way,” and “[i]f so, [to] state who those discussions or
correspondence [occurred] with, the nature of the information, and what disclosures
took place ” Frank’s Electric objects to the interrogatory, arguing that the question
“exceeds the scope of discovery as [it] is not relevant to any party’s claim or defense ”
Gourmet Gallery’s response to Franks Electric’s objection contends that “Plan B,
LLC, is the company that was employed by [Gourmet Gallery] to repair its generator
prior to October 2016 ” The Court finds that this interrogatory is relevant to Gourmet
Gallery’s negligence claim against Frank’s Electric, for example, to determine
Whether Frank’s Electric was aware that Gourmet Gallery did not have a working
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generator before it commenced electrical work on Crown Bay Marina, and what if
anything Plan B, LLC told Frank’s Electric about the generator Therefore, Frank’s
Electric will be required to answer the interrogatory
8 Request for admission No 7 Frank’s Electric
1124 Gourmet Gallery requests that Frank s Electric ADMIT OR DENY THAT [it]
had communications, directly or indirectly, With [anyone] [from] Plan B, LLC
regarding Gourmet Gallery’s generator ” Frank s Electric objects, arguing that “[the]
request for admission is vague and over broad, and requests information beyond the
scope of permissible discovery as it is not relevant to any party’s claim or defense in
this action” However, the Court finds that this request is relevant for the same
reason as interrogatory No 25 above
9 Request for admission No 9 Frank’s Electric
1125 Gourmet Gallery requests that Frank s Electric ADMIT OR DENY THAT [it]
w[as] aware that Plan B, LLC was repairing Gourmet Gallery’s generator during
October 2016 ” Frank’s Electric objects, arguing that “[the] request for admission is
vague and over broad, and requests information beyond the scope of permissible
discovery as it is not relevant to any party’s claim or defense in this action ” However,
the Court finds that this request is relevant for the same reason as interrogatory No
25 above
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10 Request for admission No 14 Frank’s Electric
1126 Gourmet Gallery requests that Franks Electric ADMIT OR DENY that [it]
did not ask Gourmet Gallery What type of compressors [Gourmet Gallery] had”
Frank’s Electric objects, arguing that “[the] request for admission is vague and over
broad, and requests information beyond the scope of permissible discovery as it is not
relevant to any party’s claim or defense in this action ” However, the Court finds that
this request is relevant for the same reason as interrogatory No 16 above
B Gourmet Gallery’s request for sanctions
$127 Both of Gourmet Gallery s motions to compel include a request for sanctions,
l e , attorney’s fees, under V I R CIV P 37
UnderVI R CIV P 37(a)(5)(A)
If the motion 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
VI R CIV P 37(a)(5)(A)(i) (iii) This Court did not find a locally reported case that
defines or analyzes “substantially justified” for the above rule Therefore, the Court
looks to the federal court for its analys1s 0f the comparable provision in FED R CIV
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21
P 87(a)(5)(A) In Chemical Bank 0 Lampe Family Living Trust Civil N0 2018 23
2019 U S Dist LEXIS 153069 (D V I Sept 9 2019) (unpublished) the District Court
of the Virgin Islands defines “[s]ubstantia1 justification [a]s ‘justification to a degree
that could satisfy a reasonable person that parties could differ as to whether the party
was required to comply with [a] disclosure request ’” Chem Bank, 2019 U S Dist
LEXIS 153069, at *4 (third alteratlon in original) (citing Gnder 0 Keystone Health
Plan Cent Inc 580 F 3d 119 140 n 23 (3d Cir 2009))
1128 Crown Bay Marina argues that, “[Gourmet Gallery] seeks sanctions in the form
of costs incurred simply as a result of filing the [m]oti0n to [c]0mpel” and “offers no
basis to impose such sanctions ” Moreover, Crown Bay Marina argues that,
“[s]ancti0ns are generally reserved to punish non compliance and deter those Who
might be tempted to engage 1n wrongful conduct in the absence of a deterrent ” See
(citing Battistev VI Tel Corp 48VI 3 9(VI Super Ct 2006)) Crown Bay Marina
contends that the “discovery dispute” between itself and Gourmet Gallery “is not
based on bad faith or a means to perpetrate a fraud on the Court, and therefore there
is nothing for the Court to punish 0r deter ’ However, this argument is counter to V I
R CIV P 37 (a)(5)(A), Which plainly requires that if a motion to compel is filed, and
“the motion is granted the court must require the party Whose conduct
necessitated the motlon to pay the movant’s reasonable expenses incurred in
making the motion, includmg attorneys fees,” except under certain circumstances,
none of Which apply here See VI R CIV P 37(a)(5)(A)(i) (iii) (emphasis added)‘
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Fenton 1) People 69 V I 889 897 (V I 2018) ( The plain and unambiguous language
of a court rule controls”) The rule contains no requirement that an objecting party be
engaged in wrongdoing, bad falth or fraud before fees are awarded
1129 Crown Bay Manna argues that its discovery objection was substantially
Justified 14 See VI R Civ P 37(a)(5)(A)(ii) However the Court finds that neither
Crown Bay Manna nor Frank’s Electric were substantially Justified in withholding
discovery responses Although the amended complaint was not granted at the time
the motion to compel was filed, there is a clear connection between the original
complaint and the contested discovery requests For instance, the original complaint
is clear that failing to hook Gourmet Gallery up to the generator is an issue in this
case Moreover, Gourmet Gallery contends that throughout discovery, “[Crown Bay
Marina] has stated that its generator is not strong enough to power [Gourmet
Gallery] and [Crown Bay Marina]’s other tenants simultaneously, claiming that
[Gourmet Gallery] therefore never could have been hooked up to [Crown Bay
Marina]’s generator and never should have expected as much ”
14 Crown Bay Marina argues that its discovery objection is justified for the following reasons
The rights and duties of the parties can be determlned through the subject Lease
Whether or not [Crown Bay Marina] 8 generator has sufficient power to accommodate
[Gourmet Gallery] is immaterial to whether [Crown Bay Marina] had a duty to connect
[Gourmet Gallery] to said generator Moreover, there is nothing in the Lease that
would suggest that [Crown Bay Manna] had such a duty, and correspondence attached
to [Gourmet Gallery]’s [m]otion to [c]0mpel further ev1dences [Gourmet Gallery] 3
awareness that it had no agreement with [Crown Bay Marina] to connect to the
generator
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$30 Additionally, the original complaint alleges that, “[d]uring the week of repairs
[by Frank’s Electric], Gourmet Gallery’s main electrical panel was neither
disconnected nor shut down, subjecting Gourmet Gallery’s electrical equipment
to hazardous electrlcal pulses in a manner inconsistent With their des1gn ” Further,
the original complaint alleges that Frank’s Electric breached its duty to “properly
perform electrical work Within the marina in a manner that would not destroy
Gourmet Gallery’s equipment” “by failing to adequately monitor the electrical current
and to take steps to ensure that Gourmet Gallery would be protected from surges
and other damagmg consequences from” Frank’s Electric’s work
131 T0 reiterate, these allegations from the original complaint, and Crown Bay
Marina’s response discussing the generator’s capacity, are clearly relevant to
Gourmet Gallery’s requests for (1) information regarding the generator and (2) steps
Frank’s Electric took, and the information Frank’s Electric knew, before commencing
electrical work in October 2016
1132 Additionally, the Court finds that Crown Bay Marina and Frank’s Electric had
an opportunity to argue that the Court should not award reasonable expenses See
VI R CIV P 37 (a)(5)(A) ( If the motlon [to compel] is granted the court must
after giving an opportunity to be heard, require pay[ment] [0f] the movant’s
reasonable expenses incurred in making the motion, mcluding attorney’s fees”)
Gourmet Gallery argued for sanctions in the form of attorney’s fees 1n its motions to
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compel Crown Bay Marina and Frank’s Electric Crown Bay Marina addressed the
issue in its opposition, but Frank’s Electric did not
1T3?) Therefore, the Court w111 order Gourmet Gallery to file an itemized applicatlon
for fees incurred as a result of havmg to file the motions to compel See GuardLan In8
Co U Estate of nght Davtd Case No ST 08 CV 189 2015 VI LEXIS 124 at *21
(V I Super Ct Sept 30 2015) (unpublished)
C Crown Bay Marina’s motion to file out of tlme
$34 In Crown Bay Marina’s Oppositlon to Gourmet Gallery’s motlon to compel,
Crown Bay Marina includes a motion to file its opposition out of time Gourmet
Gallery does not oppose the motlon Moreover, the Court sees no rlsk of prejudice or
delay See V I R CIV P 6(b)(1) Therefore the Court will grant the motion and accept
Crown Bay Marina’s opposition
IV CONCLUSION
1135 The Court finds Gourmet Gallery’s discovery requests that were objected to by
Crown Bay Marina and Frank’s Electric are relevant to Gourmet Gallery’s claims
Therefore, the Court will grant Gourmet Gallery s motions to compel
1136 Addltionally, the Court finds that Gourmet Gallery is entitled to “reasonable
expenses[,] including attorney’s fees,” under VI R CIV P 37(a)(5)(A) Therefore,
the Court will order Gourmet Gallery to file an itemized application for fees incurred
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as a result of having to file the motions to compel See Guardian Ins Co , 2015 V I
LEXIS 124 at *21
1137 Crown Bay Marina’s motion to file its oppOSItion t0 Gourmet Gallery’s motion
to compel out of time was unopposed Therefore, the Court Will grant the motion
An Order conSIStent with this Memorandum Opinion will be entered
DATED January 2020 452/ is 5
Kathleen Mackay
Judge of the Superior Court
of the Virgin Islands
ATTEST
TAMARA CHARLES
erk of t Court
Y: -
LORI O NES S?N
Chie uty Clerk /.9 Z/ 4412/