SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
ALI A TAHA
PI AINTIFF, Civil No SX 2013 CV 117
V ACTION FOR DEBT AND
CONSTRL CTIVE TRUST
ZILA SHARMOUJ AND MAHMUD
SHARMOUJ TRLSTEES OF THE ZILA CITE AS 2022 VI SUPER 211}
SHRMOUJ REVOCABLE TRUST
DFFFNDANTS
Appearances
Ali A Taha
Plamnfl, [710 se
K Glenda Cameron, Esq
Law Office of K G Cameron
Christiansted U S Vilgin Islands
F01 Defendants
MEMORANDUM OPINION AND ORDER
WILLOCKS Presiding Judge
‘II 1 THIS MATTFR is before the Conn ma spouts) for review
BACKGROUND
‘1[ 2 On April 2 2013 Plaintiff Ali A Taha (hereinatter Plaintiff ) filed a complaint against
Zila Sharmouj and Mahmud Shin mouj t1ustees 0f the Ziia Sharmouj Revocable Trust (hereinafter
Defendants ) in an action for debt and constructive trust (Compl ) On June 7 2013
Defendants filed an answer in response to Plaintiff s complaint
‘fl 3 OnApri124 2019 Robelt A Waldman Esq of Hamm Eckard LL? (hereinafter Attorney
Waldman ) Plaintiff s counsel at the time filed a motion to withdraw as counsel for Plaintiff in
this matter
Talm 1 Shannon; er (ll
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Memorandum Opinion and Order 2022 VI SUPER ZlU
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‘11 4 On July 10 2019 the Court enteied an order wheieby the Couit gianted Attorney
Waidman s motion to withdiaw as counsel ordeied that the Older shall not be effectiVe until
Attomey Waldman shall foxthvxith serve the Plaintiff with a copy of this Order and file proof of
such service with the Court within thixty (30) days and that within thirty (30) days following the
date of service and this Order upon the Plaintiff s new counsel shall file a notice of appearance for
the Plaintiff (July 10 2019 Order )
‘11 5 On January 9 2020 the parties appealed for a hearing to wit Maik Eckzud Esq
(hereinaftei Attorney Eckard ) appealed for Attorney Waldman as counsel for Plaintiff and K
Glenda Cameron Esq (heieinafter Attomey Cameron ) appeared as counsel f01 Defendants
Attorney Cameron advised the Court that she believes the matter has been reeolved
(116 On January 29 2020 Scot F McChain Esq (hereinafter Attorney McChain ) filed a
notice of compliance of the July 10 2019 Older with the following documents Exhibit A a copy
of the certified mail ieceipt showing that Ali Taha signed fox receipt on January 24 2020 dcopy
0f the cmer letter to Plaintiff dated January 15 2020 and a copy of the Court 5 July 10 2019
Older
fl7 On October 7 2021 the Court entered an order whereby the Court ordered as follows
ORDERED that within thirty (30) days from the date of entry of this Order
Plaintiff [Ali A Tuba] and Defendants [Ziia Sharmouj and Mahmud Sharmouj tiustees of
the Zila Sharmouj Revocable Trust] shail fiie a stipulated joint notice adVising the Court
of the status of this case If this matter has not been resoixed then the parties shall file a
stipulated scheduling order with their stipulated joint notice The parties shall include a
blank date f0: a status conference via zoom on the proposed scheduling order for the Courts
convenience Failure to submit a stipulated scheduling order will result in a show cause
hearing and possible sanctions
(Oct 7 2021 Order )'
1 In the Cu 7 2021 ()rdu the Court explained
Tubal Shannon} eta]
9X 20]? CV117
Memorandum Opinion and Order 2022 VI SUPER 21U
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‘11 8 On November 22 2021 the COLIN entered an order wheieby the Court noted that [ads of
the date of this Order no stipulated joint notice advising the Court of the status of the case has
been filed and ordered as tollows‘
ORDERED that the October 7 2021 order ordering the parties to file a stipulated
joint notice advising the Cou1t of the status of this case shall be and is hereby VACATED
It is further
ORDERED that a copy of this Ordei shalt be served upon Plaintiff at P O Box
5255 Sunny Isles VI 00823 via certified mail and regular First Class mail It is further
ORDERED that a copy of this Older shall be sewed upon Defendant Zila
Shaimouj and Defendant Mahmud Sharmouj via their counsel K Glenda Cameron Esq It
is further
ORDERED that within thirty (30) days from the date of service of this Order
upon Plaintiff Plaintiff shall file a notice advising the Court ot the status of this case
Failure to do so may result in this matter being dismissed for failure to pioseeute And it
is further
ORDERED that if Plaintiff s notice indicate that this matter has not been resolved
then within thirty (30) days from the date Plaintiff filed her notice, the parties shall file
a stipulated scheduling 01 der The p21: ties shalt include a blank date fOi a status conference
\ia zoom on the pioposed scheduling Older tor the Courts convenience Failuie to do so
may result in a show cause hearing and possible sanctions
(hem 22 2021 Older)
‘1l 9 On December 23 2021 Plaintiff was mailed a top) of the November 22 2021 Oidei via
xia certified mail (USPS Tracking Number 7020 2450 0002 2578 1546) and regular First Class
mail Based on the infoxmation proxided by the USPS Tracking Number the eeitified mail was
There has been no further mmement in this case since Attorney McChain tiled the notice of
tomplianee on January 29 2020
Given Attorney MLChain s January 29 2020 notice 01 compliant: the July 10 2019 order granting
Attorney Waldman s motion to withdraw as counsel is in died and Attorney Waldman is no 10mm the
counsel of record tor Plaintiff (See Jul) 10 2019 Order )
At this juncture it is unclear whether this matter has been resolved as suggested by Attoine)
Caeron at the January 9 2020 hearing
(Oct 7 2021 Ordu )
Tahat Shannon} er a!
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Memorandum Opinion and Order 2022 VI SUPER 21U
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delivered and received on December 31 2021 Additionaily there is nothing in the record that
indicates that the regular Fitst Class mail was retumed to sandal The thirty day period has since
passed
‘I[ 10 As of the date of this memorandum opinion and order Plaintiff has not filed a notice
advising the Court of the status of this case and no notice of appearance has been filed on behalf
of Plaintiff since Attorney Waldman withdrew as her counsel 7
STANDARD OF REVIEW
‘fi 1 k In Hulltdm 1 Footloc ker Spectaln Inc the Virgin Islands Supxeme Conn adopted the six
Poul“g factors and heid that the Superiot Court may not dismiss an action to: taiiure to prosecute
unIess these six [Poults] factors strongly weigh in tam: of dismissal as a sanction 53 V I 505
51 l {V I 2010) The six P014115 factou. are
(1) the extent of the party .5 personal lesponsibility ( 2) the ptejudice t0 the adversary caused
by the failure to meet scheduling ordexs‘ and respond to discovery (3} a history of
dilatorinesS' {4) whethet the conduct of the party or the attorney was willful or in bad faith
(5) the effectiveness of sanctions othet than dismissal which entails an analysis of
alternative sanctions and (6) the meritmiousness 0f the c1aim on defense
Mollm 1 Independent Blue Cross 56 VI I55 185 86 (V I 2012) {quoting Poults 747
F 2d at 868)
In M0110) the Vi1 gin Islands Supreme Court instructed that [a]Ithough a trial court is not required
to find that ail the factors weigh in favor of dismissai to warrant dismissal of the claim the court
must explicitly consider ail six factors balance them and make express findings 56 V I 155
186 (V I 209) (citations omitted) In othe: words ‘ the extreme sanction of dismissal is reserved
2 59¢? snpm footnote I
‘Poqu 1 State Farm Fae & Cm C0 747 F 2d 86? 868 (3d Cir E984)
Talia: Shalmmq era!
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for instances in which a triai court makes appropriate findings to all six factoxs and [w]ithout
them the drastic sanction of dismissal cannot be watranted Id (citations omitted)
DISCUSSION
‘11 12 This‘ matter has been pending since 2013 with minimal movement and there has been no
movement at all in the past two years 4 The Court will consider the .six Faults factors and detetmine
whether dismissal for failure to prosecute i9 warranted in this instance
1 Plaintiff’s Personal Responsibility
1“ 13 While Plaintiff was initidily lepresented by counsei she has been ptoceeding as a p10 se
litigant since January 2020 She has not done anything to move this matte] forwatd since and in
fact has failed to comply with the Court s Octobet 7 2021 order5 and November 22 2021 order
inquiring the status of this case Whi1e Plaintiff as a pro .se litigant is entitled to additional
1eniency that leniency is not a license [excusing non compliance] with relevant tules 01 proceduial
and substantixe law Montgomery \ Vugm Grand Villas 8'! John Owners Assouumm 71 VI
1119 1127 28 (V I 2019) (internal quotation omitted) see also Phillip t Marsh Monsanto 66
V1 612 622 (VI 2017) (noting that the leniency towatd p10 5e litigants has limits) As such this
factor weighs strongly in favor of dismissal
2 Prejudice to the Adversary
(II 14 In Mollm the Virgin Islands Supreme Court stated that [p}rejudice to the opposing party
is generally demonstrated by either increased expense to the opposing party arising fiom the extra
costs associated with filings responding to dilatory behavior or increased difficulty in the opposing
4 See supra footnote 1
‘ While Plaintiff could not have complied 0n hut own with the October 7 2021 ordei shim. the Court ordered Piaintitf
and Defendants t0 Hit. a stipulated joint notice Plaintitt termini) could ham. adxised the Court without Dctcnddnls
rwarding he: position on the status 01 this tax.
Ta/rax Shamng Hal
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panties ability to present or defend their claim(s) due to the implopei behaxior 56 VI at
189 (unng Pauli; 747 F 2d at 868) As noted abOVe them has been no mOVement in this case
since }anua1y 2020 6 With the passage of time evidence could be Iost memories could fad and
witnesses could disappeai 01 become unavailable As with any case a lengthy delay will certainly
make it more difficult for Defendants to defend against Piaintiff 3 claims As such this facton
weighs in favor of dismissal
3 A History of Dilatoriness
(ll 15 A history of dilatoriness is characterized by a consistent delay by the plaintiff‘s counsel
Gzlbeitt Gilbert 2017 VI LEXIS 143 at 8(Super Ct Sep 11 2017) (citinc P011115 747 F2d
at 868) A preliminary review of the file and the docket reVealed that Plaintiff s counsei and
Plaintiff have been dilatory in prosecuting this matter to wit xery little actions have been taken
to move this matter forward 7 As such this factox weighs in favor of dismissal
4 Offending Party/Attomey’s Conduct Willful or in Bad Faith
‘fl 16 In M0110) the Supreme Couit stated that the triai court must point to specific eVidence to
justify its detelmination 0f willfulness or bad faith 56 V I at 192 Thus if there is no evidence
of willfulness or bad faith on the recond the Court must piesume the party/attomey .s conduct was‘
not willful or in bad taith Id Here there is specific evidence to justify a deteimination that
Plaintiff s conduct was wiilful or in bad faith to wit Plaintiff ignored the Court s Octobei 7
202] ordei8 and Noxember 22 2021 order As such this factor weighs in favor of dismissal
“ See 5mm: footnote 1
For example minimal diswwry has been done
8 See supm footnote 5
Talth Shannon] and
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Memorandum Opinion anti Order 2022 VI SUPER ZIU
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5 Effectiveness of Alternate Sanctions
‘J[ 17 Courts must look to other appropriate methods of sanctioning befere dismissal for fdihue
to prosecute because ‘ [d]ismissal must be a sanction of last not first resorfi Gilbert 2017 V I
LEXIS 143 at 10 (citing Poulzs, 747 F2d at 869) Here some altemate sanctions include
excluding evidence, preciuding witnesses striking portions of the pleadings or imposing monetary
sanctions See Gllben 2017 VI LEXIS 143 at 10 However none of these alteinatives are
applopriate here because in taking everything into consideration such as the fact that this case
has been pending since 2013 with minimal movement and the fact that Plaintiff ignored the Court s
recent orders the Court finds that there iacks a clean interest on Plaintiff s pan: to pursue her case
against Defendants As such this factor weighs in favor of dismissal
6 Meritoriousness 0f the Claim
‘11 18 In considering whether a claim or defense appears {0 be meritorious for this inquiry, we
do not purport to use summary judgment standards A claim 0: éetense will be deemed
melitorious when the allegations of the pleadings if established at trial would support recmery
by plaintiff or would constitute a complete defense See Grimm 2017 Vi LEXIS 143 at 10
(quoting Faults 747 F 2d at 869 70) In her complaint Plaintiff did not set forth any counts
designating specific causes of action instead the caption indicated that it was an action for debt
and constructive trust 9 (Compi )
9 While Piainliti indicated in the Laption 0f the complaint that it is an anion for debt and commune trust
eonstructiVe trust is an equitable remedy and [heretore not a separate eau5e 0t action See 90 CJ 3 Trusts § 176
( [Consnuctiu trusts] are remedial in Lhal‘aLILI' and art. dassifiied as heionoing t0 remedial rather than substantiu
law and it is not itself a suhstantiw rich! )(internal Litations omitted) see also In re Estate of 7’01!»th 48 V I 166
180 (V I Super Ct Dee E7 7006)( awnstruetiwe trust is an equitabie remedy wmpellinga person who has property
to which he is not justE) entitked t0 Iranstu it to the person entitled to it ) (internai quotations and citation omitted)
Thus the Court will only address PEaintitf s debt Llaim
Tuba 1 Slimmotu e? a!
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Memorandum Opinion and Order 2022 VI SUPER ZlU
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$119 A9 noteé in Carlos Warehouse 1 Thomas no Virgin Islands precedent (binding 01
persuasive) explains what common law rule goveins a claim for money owed and thus a Banks
analysis was necessary to determine “ hether a debt claim should be recognized under the common
law of the Virgin Islands. and what Specific rules should apply 64 V I 173 183 84 (V I Super
Ct May 12, 2016) The Carlos Warehouse court conducted a Banks analysis anti concluded that
it is unquestionably the soundest tale f01 the Virgin Islands to recognize a claim for debt Id at
192 (quotation marks and internai citation omitted) and that ‘ [t]o state a common lav» claim £01
debt undei Virgin Islands lav», the plaintiff must allege that the defendant owes a ceitain amount
and that the defendant is or should be obligated to pay that amount Id Having renewed the
Barth analysis. conducted in Carlos Wm ekome this Court sees no reason to depart fiom that ruling
and adopts that analysis as though the same were set f01th herein In her complaint Plaintiff
alleged that Plaintiff and Defendants agreed for Defendants to purchase real propezty from Plaintiff
for the purchase price 01 $365 00000 (Comp! ([1111 5 6) and Defendants only paid a total of
$322 381 31 (Compl ‘l[‘l[ 7 10) The Court finds Plaintiff 5 claim meiitorious because if these
allegations are estabiished at trial, they would support reemery by Plaintiff As such this factor
weighs against dismissal
‘11 20 Hating examined the six Pouln factors regarding the dismissal of this matter for failuie to
prosecute, the Court finds that one factor weighs against dismissal and five factors weigh in favo:
of dismissal (with one factm the extent of Plaintiff 5 personal responsibility weighing sttongly
in favor) In this instance the Court finds the extreme sanction of dismissal is warranted See
Mollm 56 V I at 186 ( Although a trial court is not required to find that all the factors weigh in
favor of dismissal to warrant dismissal of the claim the court must explicitly consider all six
factors balance them and make express findings )
Tam“ Shannon} et a!
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CONCLUSION
‘f[ 21 Based on the foregoing the Court will dismiss this matter for failure to prosecute and close
this matter Accordingly it is heteby
ORDERED that this matter is DISMISSED WITH PREJUDICE It is further
ORDERED that this matter is CLOSED It is further
ORDERED that a copy of this memoxandum opinion and order shall be served upon
Plaintiff at P O Box 5255 Sunny Isles V1 00823 via certified mail and regular First Class mail
And it is further
ORDERED that a copy of this Ordei shall be sewed upon Defendants counsel K Glenda
Cameron Esq
DONE and SO ORDERED this wt“day of February 2022
ATTEST #4" ¢W
Tamara Chaiies HAROLD W L WILLOC
Clerk of the mt Presiding Judge of the Superior Court
By
Court Clerk Sum 7:-
Dated 0? / 7 07°?