IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
                         DIVISION OF ST. THOMAS AND ST. JOHN

JOYCELYN WILLIAMS,                           )
                                             )       CASE NO. ST-19-CV-488
               Plaintiff,                    )
                                             )
               v.                            )       ACTION FOR PREMISES LIABILITY
                                             )       AND DAMAGES
WORLD FRESH MARKET, LLC d/b/a                )
PUEBLO,                                      )
                                             )
               Defendant.                    )       Cite as 2023 VI Super 70
                                             )

                                     FOR PUBLICATION
                            MEMORANDUM OPINION AND ORDER


¶1.    BEFORE THE COURT is Defendant’s World Fresh Market, LLC d/b/a Pueblo (“World

Fresh”) motion to file a counterclaim pursuant to V.I.R. Civ. P 13(e). Plaintiff Joycelyn Williams'

(“Williams”) has filed an opposition to World Fresh’s motion. For the reasons stated below, the

Court will deny World Fresh’s motion to file a counterclaim.

I.     FACTUAL BACKGROUND

¶2.    On August 19, 2019, Williams filed a lawsuit against World Fresh for injuries she suffered

when she tripped and fell while shopping on September 8, 2018, in Pueblo Supermarket, located

in Long Bay, St. Thomas. In her answers to interrogatories, Williams failed to disclose that she

was treated at Paradise Chiropractic and Wellness Center located at Raphune Hill. However, at

her March 16, 2021, deposition, Williams disclosed that she was seeing a chiropractor located at

Raphune Hill. In March 2023, World Fresh obtained records from Paradise Chiropractor and

Wellness Center. The records show that Williams received treatment at Paradise Chiropractic and

Wellness Center from May 11, 2018, to December 13, 2021. After receiving Williams’ medical

records from Paradise Chiropractic Wellness Center, World Fresh moved the Court for leave to
Joycelyn Williams v. World Fresh Market, LLC d/b/a Pueblo                              Cite as 2023 VI Super 70
Case No. ST-19-CV-488
Memorandum Opinion and Order
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file a counterclaim for fraudulent concealment against Williams, alleging that Williams

fraudulently concealed her one hundred and fifty (150) medical visits to Paradise Chiropractic and

Wellness Center when she failed to disclose those visits in her answers to interrogatories. World

Fresh claims Williams intentionally concealed the visits to obtain a more favorable outcome at

mediation and trial.1 Willaims, in opposition, claims that information regarding her visits to

Paradise Chiropractic and Wellness Center was “inadvertently overlooked” in her answers to

written discovery and contends that this oversight was cured during her deposition when she stated

that she received chiropractic treatment in Raphune Hill.

II.      LEGAL STANDARD

¶3.      Pursuant to Rule 13(e) of the Virgin Islands Rules of Civil Procedure, a “court may permit

a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by

the party after serving an earlier pleading.” Thus, a counterclaim under Rule 13(e) is permissive

in character and can only be filed with leave of the court. Courts examining the comparable Rule

13(e) of Federal Rules of Civil Procedures have held that Rule 13(e) should be read in conjunction

with Rule 15(d) and 15(a)(2).2 Sky v. Haddonfield Friends Sch., 

, at

*2 (D.N.J. Mar. 31, 2016). Rule 15(d) of the Virgin Islands Rules of Civil Procedure provides that

"[o]n motion and reasonable notice, the court may, on just terms, permit a party to serve a

supplemental pleading setting out any transaction, occurrence, or event that happened after the

date of the pleading to be supplemented." V.I. R. Civ. P. 15(d). “Rule 15(d) permits claims which


1
 This case was mediated twice—on March 10, 2021, and again on March 13, 2023—without resolution.
2
 On March 31, 2017, the Supreme Court of the Virgin Islands “adopted the Virgin Islands Rules of Civil Procedure,
—which superseded all previous civil procedure rules, including the Federal Rules of Civil Procedure that had been
applicable through former Superior Court Rule 7.” Grisar v. Am. Fed'n of Teachers, AFL-CIO, 

, ¶ 11, 

, 496 (V.I. 2020). Courts construing Rule 13(e) of the Federal Rules of Civil Procedure, which is identical to
V.I.R. Civ. P. 13(e), have held that Rule 13(e) is to be read in conjunction with Fed. R. Civ. P. Rule 15(d). Reich v.
Fairleigh Dickinson Univ., 

, at *8 (D.C. N.J. July 2022). Rule 15(d) of the Federal
Rules of Civil Procedure is also identical to Rule 15(d) of the Virgin Islands Rules of Civil Procedure.
Joycelyn Williams v. World Fresh Market, LLC d/b/a Pueblo                 Cite as 2023 VI Super 70
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arise after the initial pleadings are filed to be added because the goal of the rule is to promote as

complete an adjudication of the dispute between the parties as possible.” Martinez v. Hess Oil

Virgin Islands Corporation, 

, 545, 2018 (V.I. Super. Ct. 2018) (citing William Inglis &

Sons Baking Co. v. ITT Cont'l Baking Co., 

 (9th Cir. 1981)). In that same vein,

V.I. R. Civ. P 15(a)(2) provides that the court should “freely give leave” for a party to amend a

pleading where “justice so requires." Powell v. FAM Protective Services, Inc., 

, 1039

(V.I. 2020). A motion to amend or to file a supplemental pleading should be granted if “it will

promote the just disposition of the case and will not cause undue prejudice or delay and will not

prejudice the rights of any of the parties.” Sky, 

, at *2. Conversely,

“such a motion may be denied where the proposed amendment or pleading is futile or when it

would raise new issues and unduly delay resolution of the case.” Reich v. Fairleigh Dickinson

Univ., 

, *9 (D.N.J July 1, 2022). Nevertheless, the decision of

whether to grant a Rule 13(e) motion to assert an after-acquired counterclaim is ultimately left to

the trial court's sound discretion. Id at 6; Powell, 72 V.I. at 1039.

III.   ANALYSIS

¶4.    The premise of World Fresh’s counterclaim rests on omissions made by Williams in her

answers to interrogatories, which were later corrected during her deposition on March 31, 2021.

The Court recognizes that “[f]or discovery to progress effectively, each party must provide

truthful, complete, candid, and explicit responses to each individual discovery request.” Donastorg

v. Walker, 2019 VI SUPER 96U, 18, 

, *10 (V.I. Super. Ct. July 11, 2019).

And the Court certainly does not condone Williams’ delayed disclosure. However, a plaintiff’s

omission of a treating physician or chiropractor in answers to interrogatories, which is

subsequently disclosed at a deposition, does not give rise to an independent cause of action that
Joycelyn Williams v. World Fresh Market, LLC d/b/a Pueblo                  Cite as 2023 VI Super 70
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would justify the filing of a counterclaim for fraudulent concealment.

¶5.    World Fresh’s counterclaim is a futile attempt to re-fashion its affirmative defenses into a

counterclaim.   Simply labeling an affirmative defense as a counterclaim does not alter its

fundamental nature. In fact, V.I. R. Civ. P 8(c)(2) requires that “if a party mistakenly designates a

defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat

the pleading as though it were correctly designated and may impose terms for doing so.” In other

words, substance takes precedence over form, and the court must correct the mischaracterization

of an affirmative defense as a counterclaim. A similar procedural maneuver that World Fresh uses

in the instant matter was attempted in Carmichael v. Union Pacific R.R. Co., 

,

392-394 (IL. 2019). In Carmichael, the court clarified that an affirmative defense is a defense that,

if proven, would mitigate or eradicate the defendant’s negligent conduct alleged in the complaint,

whereas a counterclaim is an independent cause of action by a defendant against a plaintiff. The

Carmichael court further explained that:

       A counterclaim is an independent cause of action in favor of the defendant against the
       plaintiff, which the defendant is authorized to litigate in opposition to the plaintiff's claim
       in the same action. As an independent action, a counterclaim must stand or fall on its own
       merits, regardless of the disposition of the complaint. In order to state a cause of action, a
       counterclaim must be both legally sufficient and factually sufficient, setting forth a legally
       recognized claim as its basis for recovery, as well as pleading facts which bring the claim
       within the legally recognized cause of action alleged. In contrast to an affirmative defense,
       which merely seeks to defeat the plaintiff's cause of action by a denial or confession and
       avoidance, a counterclaim seeks affirmative relief.

Carmichael, 155 N.E. 3d at 394 (citations omitted). An affirmative defense challenges the

underlying liability, whereas a counterclaim is a separate claim independent of the plaintiff’s

underlying claim.

¶6.    World Fresh’s counterclaim is not a true counterclaim as it only seeks to reduce or defeat

Williams’ claim that World Fresh is liable for Williams’ injuries. The counterclaim establishes no
Joycelyn Williams v. World Fresh Market, LLC d/b/a Pueblo                  Cite as 2023 VI Super 70
Case No. ST-19-CV-488
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basis for World Fresh to recover damages independent of Williams’ claims. If World Fresh were

to succeed in demonstrating that Williams deliberately concealed her prior injuries and visits to

Paradise Chiropractic Wellness Center before her fall in Pueblo Supermarket, it would avoid some

or all liability on Williams’ claim. However, World Fresh would not be entitled to recover damages

independent of Williams’ claims. Hence, its counterclaim is, in fact, an affirmative defense recast

as a counterclaim. Notably, World Fresh has only identified attorney’s fees and costs incurred in

defending this lawsuit as damages. The possibility that a defendant may obtain attorney’s fees as

a prevailing party is an inadequate foundation for a counterclaim. Certainly, if World Fresh

prevails in defense of this action against Williams, it may seek attorney’s fees and costs under 5

V.I.C. § 541 as the prevailing party. Likewise, a party’s supposed discovery violation is an

insufficient basis for a counterclaim. A discovery violation does not give rise to a counterclaim.

The remedies for discovery violations are outlined in V.I.R. Civ. P 37. Rule 37 gives the Court

great latitude in fashioning an appropriate sanction for a discovery violation, including payment

of reasonable expenses and attorney’s fees caused by the failure to disclose relevant information

during discovery. Hence, it is superfluous to file a counterclaim to recover attorney’s fees incurred

in defending an action or as a sanction for untimely disclosure of information.

¶7.    An affirmative defense is not a separate cause of action, as it cannot stand on its own if the

complaint is dismissed. If Williams’ complaint is dismissed, World Fresh’s counterclaim for

fraudulent concealment of information during discovery will evaporate, as it could not survive

independently of Williams’ complaint. See Hinfin Realty Corp. v. Pittston Co., 

 (E.D. NY 2002)(holding that although the defendant labeled its eighth affirmative defense as

both a counterclaim and an affirmative defense, the substance of the allegation reveals that it is not

a counterclaim but, rather, "purely a defensive pleading interposed against allowance of the
Joycelyn Williams v. World Fresh Market, LLC d/b/a Pueblo                     Cite as 2023 VI Super 70
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claim."). World Fresh’s purported counterclaim cannot “stand or fall on its own merits regardless

of the disposition of the complaint.” Carmichael, 155 N.E. 3d at 392; Buller v. Owner Operator

Indep. Driver Risk Retention Group, Inc., 

 (S.D. Ill 2006)(holding that an

asserted counterclaim is an affirmative defense where “the allegation of the counterclaim cannot

be adjudicated separately from [plaintiff’s] claim.”).

¶8.     Moreover, World Fresh’s counterclaim does not substantively differ from affirmative

defenses 12 and 18 in its answer to the complaint. Rather, its purpose is duplicative of the

affirmative defenses. The counterclaim primarily aims to limit or preclude damages against World

Fresh due to Williams’ pre-existing injuries caused by third parties. World Fresh’s Affirmative

Defenses 12 and 18 serve the same purpose. Affirmative Defenses 12 and 18 provide as follows:

        12.      Defendant states that Plaintiff’s injuries were caused by third parties not under the
        control, direction or supervision of Defendant and for which Defendant cannot be held
        liable. The liability of Defendant, if any, should only be for its respective percentage of
        fault, if any, in causing or contributing to Plaintiff's alleged injuries. Alternatively, the acts
        and/or omissions or such third parties were intervening and/or superseding causes of
        Plaintiff's injuries and/or damages precluding recovery against defendant.

        18.     Defendant states as to any injury or damage alleged to have been sustained by
        Plaintiff, that such injury or damage was based upon a pre-existing and/or congenital and/or
        hereditary condition which was not caused or contributed to by any act and/or omission of
        Defendant and Plaintiff is not entitled to any recovery against Defendant based upon any
        injuries or damages allegedly sustained as a result of any pre-existing and/or hereditary
        condition.

The counterclaim is unnecessary, given that World Fresh may still assert the facts stated in the

counterclaim in its defense of this action to limit or avoid liability.

¶9.     When the Court is exercising its discretion pursuant to Rule 15, it must consider the

potential prejudice to both parties. World Fresh will not be prejudiced by the Court’s denial of its

motion to file a counterclaim. World Fresh contends that the omission prejudiced it during both

mediation conferences. However, nothing prevents World Fresh from returning to mediation or
Joycelyn Williams v. World Fresh Market, LLC d/b/a Pueblo                    Cite as 2023 VI Super 70
Case No. ST-19-CV-488
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engaging in settlement discussions with the now-acquired evidence to support its position that

Williams had preexisting injuries, so it is not liable for all of Williams’ injuries or that World Fresh

is not liable for any damages as Williams was not injured in World Fresh. World Fresh's concerns

outlined in its proposed counterclaim can still be raised in this matter. At trial, World Fresh may

cross-examine Williams about her delayed disclosure of Paradise Chiropractic and Wellness

Center, even though she had received chiropractic services from there before she fell in Pueblo

Supermarket and had made 150 visits to Paradise Chiropractic and Wellness Center. World Fresh

may ask Williams about the medical records from Paradise Chiropractic and Wellness Center.

According to World Fresh, the records indicate that Williams had previously complained to the

treating chiropractor about pain in her neck, shoulder, and feet months before the incident at World

Fresh. World Fresh may also call Williams’ treating chiropractor at Paradise Chiropractic and

Wellness Center to testify about the types of treatment Williams received, the duration of her

treatment, and the diagnosis and causes of her injuries. Denial of World Fresh’s Motion will not

impede its ability to fully defend the allegations in the complaint or prevent the Court from

adjudicating all claims and issues.

IV.     CONCLUSION

¶.10    Ultimately, it is the Court's discretion to freely grant leave when justice so requires. The

Court finds that World Fresh’s counterclaim is not a true counterclaim but rather an affirmative

defense. At most, it sets out grounds for avoiding or reducing liability. It establishes no

independent basis on which World Fresh could recover damages independent of Williams’ claim

and cannot be adjudicated separately from Williams’ claim. Additionally, permitting World Fresh

to file the counterclaim premised on the nondisclosure of information that has since been disclosed,

albeit belatedly, will cause further undue delay, unnecessarily complicate this matter, and confuse
Joycelyn Williams v. World Fresh Market, LLC d/b/a Pueblo                 Cite as 2023 VI Super 70
Case No. ST-19-CV-488
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the issues. World Fresh will not be prejudiced by the denial of the motion to file the counterclaim,

as the case can be fully adjudicated without the counterclaim. Therefore, the Court shall exercise

its discretion and deny World Fresh’s motion for leave to file a counterclaim. Accordingly, it is

hereby

         ORDERED that Defendant’s motion to file counterclaim is DENIED; and it is further

         ORDERED that a copy of this Memorandum Opinion and Order shall be directed to

counsel of record.


Dated: November 15, 2023                             __________________________________
                                                      CAROL THOMAS- JACOBS
                                                            Judge of the Superior Court
                                                               of the Virgin Islands
ATTEST:
Tamara Charles
Clerk of the Court

                         November 16, 2023
By: ___________________________________
 for
     Latoya Camacho
     Court Clerk Supervisor_____/_____/______