SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
PATRICK KRALIK '.
PLAINTIFF, iCivil No sx 19 CV 61
v ’ ACTION FOR DAMAGES
CHRISTIANSTED RESTORATION
CORP CITE AS 2021 V1 SUPER 1P
DEFENDANTS
Appearances
Lee J Rohn, Esq
Lee J Rohn and Associates LLC
Christiansted U S Virgin Islands
For Plamtlfl
Eric A Hiller, Esq
Justin King, Esq
Clyde & Co US LLP
Miami Florida
For Defendant Osage STX Holdings LLC
Douglas L Capdeville, Esq
Law Otfices of Douglas L Capdeville, P C
Christiansted U S Virgin Islands
For Defendant Chrzstumsted Restoration Corp
MEMORANDUM OPINION AND ORDER
WILLOCKS Presiding Judge
THIS MATTER came before the Court on Plaintiff Patrick Kralik s (hereinafter
Plaintiff ) motion to reconsider the Court 3 June 22 2020 order filed on July 6 2020 Defendant
Osage STX Holdings LLC (hereinafter Defendant ) filed an opposition thereto To date Plaintiff
has not filed a reply
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BACKGROUND
On January 13 2020 Defendant filed a motion to compel Plaintiff to execute discovery
authorizations (hereinafter First Motion to Compel ) An opposition and a reply were filed
thereafter On March 17 2020 Defendant filed another motion to compel discovery and compel
Plaintiff to execute discovery authorizations (hereinafter Second Motion to Compel ) An
opposition and a reply were filed thereafter Subsequently, the Court signed a memorandum
opinion and order on June 22 2020 (hereinafter June 22 2020 Order )I whereby the Court
granted Defendant s First Motion to Compel and Second Motion to Compel ordered that
‘ Defendant is entitled to costs and fees including attorney fees incurred in filing and support of
these two motions, ordered that ‘Plaintiff provide the Defendant with the properly executed
releases within FIVE (5) DAYS Delay in delivering the releases will incur sanctions in the amount
of five hundred dollars ($500 00) per each day of noncompliance with this Order and ordered
that Plaintiff will supplement discovery as indicated in the text of this document within
FOURTEEN(14)DAYS (June 22 2020 Order p 6) On July6 2020 Plaintiff filed this instant
motion for reconsideration
STANDARD OF REVIEW
Motions for reconsiderations are governed Rule 6 4 of Virgin Islands Rule of Civil
Procedure (hereinafter Rule 6 4 ) Rule 6 4 provides that a party may file a motion asking the
court to reconsider its order or decision within 14 days after the entry of the ruling unless the time
is extended by the court and [e]xtensions will only be granted for good cause shown VI R
CIV P 6 4(a) Rule 6 4 further provides that [a] motion to reconsider must be based on
' The June 22 2020 Order was entered on June 23 2020
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(l) intervening change in controlling law, (2) availability of new evidence (3) the need to correct
clear error of law or (4) failure of the court to address an issue specifically raised prior to the
court 5 ruling’ and that [w]here ground (4) is relied upon, a party must specifically point out in
the motion for reconsideration where in the record of the proceedings the particular issue was
actually raised before the court V I R CIV P 6 4(b) A motion for reconsideration [i]s not a
vehicle for registering disagreement with the court's initial decision for rearguing matters already
addressed by the COUH or for raising arguments that could have been raised before but were not
W0rldw1de Fltght Servues v Government of the Virgin Islands, 51 V I 105 110 (VI
2009) (quoting Bosnc v AT&Tof the Virgin Islands 45 V I 553 312 F Supp 2d 731 733 (D V I
2004)) Generally [a] motion for reconsideration is not a second bite of the apple [Instead it
serves] to focus the parties on the original pleadings as the main event and to prevent parties
from filing a second motion with the hindsight of the [C]ourt 5 analysis covering issues that should
have been raised in the first set of motions Smith v Law OflFces of Karin A Bentz P C 2018
VI LEXIS l3 *l5 (Super Ct Jan 29 2018) (citing to In re InfimrSherman
49 VI 452 457
(V I 2008)) In determining a motion for reconsideration the Court should operate under ‘ the
common understanding that reconsideration is an extraordinary remedy not to be sought
reflexiver or used as a substitute for appeal See In re Infant Sherman 49 V I at 458
DISCUSSION
In his motion Plaintiff argued that [r]econsideration is required here because the Court 5
June 22, 2020 Order contains factual errors that led to the improper imposition of sanctions and
requested the Court to rescind its order for costs and fees and a fine of $500 00 a day (Motion
pp l 3) Plaintiff made the following assertions in support of his motion (i) [I]n the first
paragraph of the order it indicted that Plaintiff filed an additional Motion to Compel Discovery
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and authorizations on March 17 2020 That is in error It was Defendant who filed the duplicative
motion (Id at p 1) (ii) The Court then assumes that [Defendant filed its Second Motion to
Compel] because the authorizations were not produced but as Plaintiff pointed out and the Court
has in its file Plaintiff produced the authorizations (3) three days after their receipt on January 16,
2020 7 (Id at p 2) (emphasis omitted) (iii) "The Court 5 Order also incorrectly stated that
Plaintiff conditioned the authorizations on the signing of a Confidentiality Agreement which was
not provided until February 28 2020 As can be seen from Exhibit ‘ 1 there was no such condition
on the authorizations ’ (Id ) (emphasis omitted) and (iv) [E]xcept for the Criminal
Authorizations Defendant has had authorizations fully executed since January 16 2020 The
Courts statement that these are typical authorizations in all personal injury cases is true, but for
the Criminal Authorization which usually requires some knowledge of prior criminal conduct
before being required Nonetheless the undersigned has provided that authorization (Id )
Plaintiff also requested the Court to rescind its order that Plaintiff produce tax returns for ten (10)
years within 14 days’ because ‘ Plaintiff does not have possession of additional tax returns and
couldn I possibly get them within fourteen (14) days given the current COVID pandemic and
delays at the IRB and Plaintiff has given Defendant a tax authorization, and Defendant can
acquire these records from the IRB (Id at pp 2 3)
In its opposition Defendant argued that the Court should deny Plaintiff’s motion because
“there are no extraordinary circumstances warranting such relief (Opp , p l) (emphasis omitted)
Defendant made the following assertions in support of its argument (i) Plaintiff continues to
deliberately violate this Court 3 June 22 2020 Order as he brazenly asks the Court to reconsider
’ Plaintiff referenced Exhibit l A copy of Plaintift 5 responses to Detendant 5 second request for production of
documents dated January 16 2020
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that very Order based on an inconsequential scrivener s error (Id ) (ii) ‘ Plaintiff does not argue
any of these enumerated factors [of Rule 6 4] Instead the motion is based on a harmless
scrivener s error (Id , at p 2) (iii) The scrivener’s error on the first page is totally
inconsequential and falls woefully short of satisfying his heavy burden for the extraordinary
relief of reconsideration ‘ (Id ) (iv) “Plaintiff incorrectly refers to Defendant 5 second discovery
motion as duplicative of the first but as recognized by the Court Defendant s first motion
filed January 13 2020 addresses Plaintiff’s failure to produce the discovery authorizations [and]
Defendant 5 second discovery motion filed March 17 2020 sought to compel the authorization
and to compel additional discovery to which Plaintiff failed to respond (Id at pp 2 3) (emphasis
omitted) (v) The Court recognized only that in opposition to the First Motion [to Compel]
Plaintiff’s counsel argue[d] that this matter [was] moot because Defendant s counsel sent the
release forms again properly modified—on January 13, 2020 and the Plaintiff has been asked to
go to Counsel s office to sign them and ‘the Court made no finding that Plaintiff provided proper
authorization forms to Defendant on January 13 ” (Id at p 3) (vi) “Plaintiff misrepresents that
there was no such condition on the authorizations while producing exhibits that actually contain
the very conditions he explicitly denies The bottom of each of those documents contains the same
language added to the forms that Defendant presented in its Second Motion [to Compel] stating
that the execution of the forms is CONTINGENT UPON and SUBJECT TO THE
CONFIDENTIALITY AGREEMENT IN THIS MATTER (Id at pp 4 5) (emphasis omitted)
(vii) “To date Plaintiff has still not complied with this Court 5 order’ and remains in violation of
the Order (1d at pp 4 6) (viii) As to Plaintiff’s request for the Court to rescind its order that
:31e9ffndant reierenccd Merchants Comm Bankv Oceanside VI” Inc 2019 WL 7972136 *2 (Super Ct Nov 22
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Plaintiff produce tax returns even if Plaintiff’s representation is true, the Virgin Islands Rules
of Civil Procedure provide a mechanism for him to both comply with this Court’s Order and the
Virgin Islands Rules of Civil Procedure That is, when a party is without sufficient information
and objects on that basis he may appropriately respond that no such documents exist and indicate
that no documents are being withheld on that basis Plaintiff has still produced no such response
as provided by the Rules 4 (Id )
As noted above, a proper Rule 6 4 motion must rely on one of four grounds (1) intervening
change in controlling law (2) availability of new evidence, (3) the need to correct clear error of
law or (4) failure of the court to address an issue specifically raised prior to the court 5 ruling ”
VI R CIV P 6 4(b) In his motion Plaintiff argued that “[r]econsiderati0n is required here
because the Court 5 June 22 2020] Order contains factual errors ’ However the language of Rule
6 4 clearly only provides four grounds for reconsideration and factual errors is not one of the
four grounds The Court finds the pertinent language of Rule 6 4 plain and unambiguous, and
thereby the Court will give effect to the plain words of the rule See Banks ofN S v Dore 57 V I
105 l l3 14 (Super Ct Oct 19 2012) (citing Corraspe v People 53 V I 470 480 481 (V I
2010) ( The rules of this Court are applied using the same standards which govern the construction
of statutes ’ and the primary objective of the trial court is to give effect to plain words utilized in
the subject rule ), People v Rivera 54 V I “6 125 (Super Ct 2010)( The procedural rules of
courts are construed in accordance with the canons of statutory construction ) In re People 49
V I 297 306 (V I 2007)) ( We believe the pertinent language is plain and unambiguous thereby
‘ Defendant referenced V I R CIV P 34(b)(2)(C) ( An objection must state whether any responsive materials are
being withheld on the basis of that objection An objection of part of the request must specify the part and permit
inspection of the request )
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dispensing with a resort to the canons of construction ) As such Plaintiff’s motion though timely
filed, failed to raise an adequate ground under Rule 6 4 for this Court to reconsider its June 22,
2020 Order and the Court will deny Plaintiff’s motion ‘
The Court must point out that the factual errors alleged by Plaintiff are either harmless
error, or Plaintiff's misconstruction of the June 22, 2020 Order or an argument that should have
been raised previously but was not First, Plaintiff asserted that the June 22 2020 erroneously
indicated that Plaintiff instead of Defendant filed the Second Motion to Compel While the Court
inadvertently stated that Plaintiff instead of Defendant filed the Second Motion to Compel on the
first page of the June 22 2020 Order the Court correctly stated that Defendant not Plaintiff filed
the Second Motion to Compel on the second page and the sixth page of the June 22 2020 Order 6
Thus the scrivener’s error on the first page was harmless Second Plaintiff asserted that the Court
incorrectly assumed in the June 22 2020 Order that Defendant filed the Second Motion to Compel
because the authorizations were not produced when Plaintiff had already produced the
authorizations on January 16 2020 three days after Defendant filed the First Motion to Compel
Plaintiff never indicated in her motion where such an assumption was made by the Court Unlike
what Plaintiff asserted the Court did not assume nor make such a finding that Defendant filed the
5 In his motion Plaintili requested the Court to rescind its order that Plaintitf produce tax returns tor ten (10) years
within 14 days However the June 22 2020 Order never ordered Plaintifi produce tax returns for ten (IO) years
within 14 days Instead the June 22 2020 Order ordered Plaintitf to supplement discovery within tourteen days Thus
even if Plaintilt does not have possession cl additional tax returns and couldn I possibly get them within fourteen
(I4) days given the current COVlD pandemic and delays at the [RB as claimed by Plaintiff Plaintiit could still
supplement his discovery responses pursuant Virgin Islands Rules of Civil Procedure Defendant claimed in its
opposition that Plaintiff has not supplemented hlS discovery responses and thereby Plaintifl is still not compliant with
the Court 5 June 22 2020 Order Plaintiff never filed a reply to dispute Defendant 5 claim
6 Page two of the June 22 2020 Order provides in relevant part The Defendant’s Second Motion was filed more
than a month after the Opposition and Reply were filed (June 22 2020 Order p 2)
Page six of the June 22 2020 Order provides in relevant part ORDERED that the Defendant 5 Motion to Compel
Discovery and compel Plaintitf to Execute Discovery Authorizations is GRANTED (Id at p 6)
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Second Motion to Compel because the authorizations were not produced In the June 22, 2020
Order the Court acknowledged that the parties’ positions in their respective filings to wit
Plaintiff’s opposition to Defendant s First Motion to Compel indicated that Defendant sent
Plaintiff revised release forms and that the issue was moot Defendant 3 Second Motion to Compel
indicated that Plaintiff decided to execute the releases subject to a confidentiality agreement but
the agreement was not provided to the Defendant until February 28 2020 ’ 7 Thus, there is no error
as alleged by Plaintiff Third Plaintiff asserted that the Court incorrectly stated that Plaintiff
conditioned the authorizations on the signing of a Confidentiality Agreement which was not
provided until February 28 2020 Again, unlike what Plaintiff asserted, the Court did not assume
not make such a finding that “Plaintiff conditioned the authorizations on the signing of a
Confidentiality Agreement which was not provided until February 28 2020 In the June 22 2020
Order the Court acknowledged that Defendant in its Second Motion to Compel indicated that
Plaintiff decided to execute the releases subject to a confidentiality agreement but the agreement
was not provided to the Defendant until February 28, 2020 8 Thus there is no error as alleged by
The June 22 2020 Order provides in relevant part
In the very brief opposition, Plaintiff’s counsel argues that this matter is moot because
Defendant’s counsel sent the release forms again properly modified—on January 13, 2020 and the
Plaintiff has been asked to go to counsel’s office to sign them (Opp n l ) The releases will reportedly be
sent nut within thirty days as per the request tor production that they accompanied (Id) In the Reply the
Detendant argues that the Plaintilf is still attempting to delay and that waiting an additional thirty days is
unreasonable (Reply, 1 3)
The Defendant 5 Second Motion was filed more than a month alter the Opposition and Reply were
filed Therein Defendant s counsel again asserts that Plaintill s counsel is stonewalling discovery and
refusing to confer (Second Mot I ) According to the Defendant, the Plaintiff decided to execute the
releases subject to a confidentiality agreement, but the agreement was not provided to the Defendant
until February 28, 2020 (Id at 3 ) On March 3 2020 the Defendant informed the Plaintiff that it intends
to proceed with these motions rather than sign the confidentiality agreement (Id) This was after multiple
attempts to set up a time to meet and confer between January and the end of February (1d) On February 27
2020 at an agreed upon time Defendant’s counsel called Plaintiff s counsel to confer and was told they would
have to reschedule due to unavailability (Id at 4) The Defendant asserts that the Plaintiff has failed to act
in good faith (Id )(June 22 2020 Order pp 2 3) (emphasis added)
a See supra note 6
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Plaintiff Finally Plaintiff asserted that ‘ [t]he Court 5 statement that these are typical
authorizations in all personal injury cases is true but for the Criminal Authorization which usually
requires some knowledge of prior criminal conduct before being required It appears that Plaintiff
is claiming that the Court incorrectly stated that these are typical authorizations because the
criminal authorization is not 9 However this is an argument that could have been raised before but
was not More specifically Plaintiff had two opportunities to raise her argument regarding the
criminal authorization in his opposition to Defendant s First Motion to Compel'° and in his
opposition to Defendant 5 Second Motion to Compel” and Plaintiff chose not to The Court will
not let Plaintiff rclitigate the issue now As noted above, a motion for reconsideration [i]s not a
vehicle for registering disagreement with the court s initial decision, for rearguing matters already
addressed by the court, or for raising arguments that could have been raised before but were not
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CONCLUSION
Based on the foregoing the Court do not discern any extraordinary or special
circumstances that would have justified granting Plaintiff’s motion for reconsideration See In re
Infant Sherman, 49 V l at 458 (In determining a motion for reconsideration the Court should
operate under the common understanding that reconsideration is an extraordinary remedy not
9 The June 22 2020 Order provides in relevant part
The Court agrees with the Defendant that Plaintitf s counsel is stalling Not only are these releases
standard for personal injury and discoverable but Delendant s counsel even edited them to include
language requested by Plaintiff’s counsel
'0 Defendant 5 First Motion to Compel requested an order compelling plaintiff to execute authorizations to disclose
medical information insurance information income tax records, unemployment and workmen’s compensation
records, and criminal records (First Motion to Compel, p 5) (emphasis added)
" Defendant 5 Second Motion to Compel requested ‘an order compelling plaintift to execute authorizations to disclose
medical information insurance information income tax records unemployment and workmen s compensation
records and criminal records " (Second Motion to Compel p 8) (emphasis added)
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to be sought reflexiver or used as a substitute for appeal ) As such the Court will deny Plaintiff’s
motion for reconsideration filed on July 6, 2020 Accordingly it is hereby
ORDERED that Plaintiff’s motion for reconsideration filed on July 6 2020 is DENIED
DONE and so ORDERED this ‘ 6 day of January 2021
; HAROIjE W L WILLOCKS j
Presiding Judge of the Superior Court