IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
ANDREA V SMITH )
)
Plaintiff ) Case No ST 18 CV 138
)
V )
) Action for Breach of Contract,
THE WEST INDIAN COMPANY LIMITED ) Breach of Covenant of Good Faith
) and Fair Dealing
Defendant )
“J
APPEARANCES
Karin A Bentz, Esquire
Law Office of Karin Bentz
7605 Lower Hull
St Thomas, Vi1 gin Islands
F0; Plamtzfi’
Shari N D Andrade, Esquire
Kellerhals Ferguson & Kroblin PLLC
Royal Palms Professional Building
9053 Estate Thomas Suite 101
St Thomas, Virgin Islands
For Defendants
2022 VI Super 64U
MEMORANDUM OPINION AND ORDER
111 THIS MATTER is before the Court on the following
1 Plaintiff’s Motion f01 Reconsideration of Denial of Plaintiff’s Motion to Amend
Complaint filed February 15 2022
2 Defendant 5 Opposition to Plaintiff’s Motion for Reconsideration of Denial of Plaintiff’s
Motion to Amend Complaint filed March 11 2022
3 Plaintiff’s Reply in Support of Motion for Reconsideration of Denial of Plaintiffs
Motion to Amend Complaint filed March 29, 2022 and
4 Defendant s Surresponse to Plaintiff’s Reply in Support of Motion for Reconsidelation of
Denial of Plaintiff“ 5 Motion to Amend Complaint filed April 27 2022
Andiea Smith v The West Indian Companv Lunzted
Case No ST 2018 CV 00138
Memorandum Opinion and Order July 11 2022
Page 2 of 7
2022 VI Super 64U
I BACKGROUND
112 Plaintiff commenced the present action by filing a complaint on March 12 2018 1 Three
years later on May 10, 2021, Plaintiff moved to amend the complaint to add four new claims and
nine new parties Because this motion was filed well beyond the 21 days allowed by the Virgin
Islands Rules of Civil Procedure to amend the complaint once as a matter of couise, Plaintiff
argued that the motion to amend should be granted because the amendments sought relate back to
the original pleading and would not c1eate any undue pleJudice On September 27, 2021 , this Court
issued an Order denying Plaintiff” 5 Motion to Amend Complaint based on Plaintiff’s undue delay
in filing the motion and finding that amending the complaint at this stage would prejudice
Defendant and place an unwarranted burden on the Court
113 On Febmary 15 2022 almost five months after the Court issued its order, Plaintiff filed a
Motion fox Reconsideration of Denial of Plaintiff s Motion to Amend Complaint, asking the Com“:
to reconsider its denial of her Motion to Amend Complaint Plaintiff contends that the Order dated
September 27, 2021, was not received by Plaintiff’s counsel until February 2, 2022 Plaintiff
asserts that the motion is therefore timely since it was filed within 14 days of receipt of the Court’s
Order by Plaintiff’s counsel Shall Plaintiff’s motion for reconsideration be considered timely,
Plaintiff argues that her motion should be granted to correct a clear error of law and manifest
injustice 2
114 Defendant filed an Opposition to Plaintiffs Motion for Reconsidelation of Denial of
Plaintiff’s Motion to Amend Complaint on March 11, 2022, arguing that thele is no basis to
reconsider the Court’s order 3 Defendant also argues that Plaintiff” s motion has raised new reasons
for the delayed filing of her Motion to Amend Complaint that must be disregarded 4 Plaintiff filed
a Reply in Support of Motion for Reconsideration of Denial of Plaintiff’s Motion to Amend
Complaint on March 29 2022 arguing that justice would be served by granting the amendment 5
The matter came before the Court for a status conference on March 30 2022, at which time
Defendant s counsel advised that Plaintiff’s motions raised new issues and she would be filing a
request to file a surresponse Defendant filed a Motion for Leave to File Surresponse on Apiil 7,
2022 which the Court granted on April 13 2022 Defendant filed a Surresponse to Reply in
Support of Motion for Reconsideration of Denial of Plaintiff’s Motion to Amend Complaint on
April 27, 2022 The parties are currently attempting to mediate their dispute
1 As noted in the Court 5 Order dated September 27 2021 this action is the third iteration of Plaintiff‘s lawsuit
against Defendant and the Court will therefore not outline the extensive factual and procedural history of this case
° Pl sMot Recons 3
3Def 3 Opp nto Pl 5 Mot Recons 3
4 Def s Opp n to P1 5 Mot Recons 5
5Pl sReply in Supp ofMot Recons 2
Andiea szth v The West Indian Company Ltmzted
CaseNo ST 2018 CV 00138
Memorandum Opinion and Order July 1 1, 2022
Page 3 of 7
2022 VI Super 64U
II LEGAL STANDARD
A Motion for Reconsideration
{[5 Motions for reconsideration in the Superior Court of the Virgin Islands are governed by
Rule 6 4 of the Virgin Islands Rules of Civil Procedure, which 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 6 The court will only grant extensions for good
cause shown 7 A motion to reconsider must be based on one of the following grounds (1)
intervening change in controlling law (2) availability of new evidence; (3) the need to correct
clear error of law; 01 (4) failure of the court to add1ess an issue specifically raised prior to the
court’s inling 8 Parties moving f01 reconsideration must base their argument on one of the four
grounds enumerated in Rule 6 4 01 they fail to meet their burden 9 Reconsideration is an
extraordinary remedy not to be sought reflexively 01 used as a substitute for appeal '0 Motions
for reconsideration are not vehic1e[s] for registering disagreement with the court 5 initial
decision, for rearguing matters already addressed by the court or for raising arguments that could
have been raised before but were not ’ ’” Thus, they are not a second bite of the apple, and they
are intended 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 court 5 analysis covering issues that
should have been raised in the first set of motions ‘2 Motions for reconsideiation are not proper
for presenting new facts raising new issues, or making new arguments ‘3
116 When analyzing a motion for reconsideration based on the need to correct clear error of
law, Virgin Islands courts have determined that granting a motion on these grounds is appropriate
6 V I R CIV P 6 4(a) (providing the time to file a motion for reconsideration except as provided in Rules 59 and 60
relating to final orders and judgments)
7 VI R CIV P 6 4(a) see also Maglas v NationalIndustnal Sentces LLC 75 VI 11 17(VI Sup Ct 2021)
(finding good cause for a delayed filing when counsel never received information due to an inadvertent oversight)
8 V I R CIV P 6 4(b) (noting that when ground (4) is relied upon a party must specifically point out in the motion
for reconsideration wheie in the record of the proceedings the particular issue was actually raised before the court)
see also Arwdson \ Buchm, 72 V I 50, 64 (V I Super Ct 2019) (concluding that motions for reconsideration
must be based on one of the grounds delineated in Rule 6 4(b) )
9 See Magras v National Indus!) 1a] Sewzces LLC, 75 V I 11 15 16 (V I Super Ct 2021) (denying a motion for
reconsideration when the parties did not base their argument on one of the four grounds enumerated in Rule 6 4 and
therefore did not meet their burden) (citing Arvzdson 72 V I at 64)
‘0 Klallkl Osage STXHoldmgs LLC 74 V I l7 19 (VI Super Ct 2021) (quoting In re Infant Shaman 49 V I
452 458 (VI 2008))
” Id (citing Worldwzde Flight Sermces v Gov tofrhe Vugm Islands 51 V I 105 110 (V I 2009)) (quoting Bostlc
\ AT&Tofthe Vugm Islands
312 F Supp 2d 731 733 (D VI 2004))
' Ghzrawoo v John Baptiste 74 V I 294 298 (V I Super Ct 2021) (quoting In re Infant Sherman 49 V I at 457)
13 People 0ftlze Vugm Islands v Hatchet
68 VI 367 376 (V I Super Ct 2018)
Andlea Snzzth v The West Indzan Company Limited
CaseNo ST 2018 CV 00138
Memorandum Opinion and Order July 11 2022
Page 4 of 7
2022 VI Super 64U
‘when the initial decision overlooked dispositive factual or legal matters presented to it ”’14 The
court may grant the motion when its prior decision applied an incorrect legal precept or failed to
conduct proper legal analysis using the correct legal precept ‘5 The moving party is expected to
offer the specific legal authority it claims the Court failed to apply or incorrectly applied in its
original decision 16
B Motion to Amend Complaint
117 Motions to amend a complaint in the Superior Court of the Virgin Islands are governed by
Rule 15 of the Virgin Islands of Civil Procedure 17 Rule 15 allows a party to amend its complaint
once as a matter of course within 21 days of serving it 18 Once this time has expired, a party seeking
to amend a complaint may amend only with the opposing party 5 written consent or with the
court 3 leave ’ 19 However, Rule 15 also allows an amendment to pleading when the pioposed
amendment relates back to the date of the original pleading Specifically Rule 15(c) provides
(1) An amendment to a pleading relates back to the date of the original pleading when
(A) the law that provides the applicable statute of limitations allows relation back
(B)the amendment asserts a claim or defense that arose out of the conduct, transaction, or
occurrence set out or attempted to be set out in the original pleading or
(C) the amendment changes the party or the naming of the party against whom a claim is
asserted if Rule 15(c)(1)(B) is satisfied and if, within the period by Rule 4(m) for serving
the summons and complaint the party to be biought in by amendment
i 1eceived such notice of the action that it will not be prejudiced in defending on the
merits; and
ii knew or should have known that the action would have been brought against it, but
for mistake concerning the party’s proper identity 20
118 While the Court should freely give leave [to amend] when justice so requires, 2‘
amendments are within the Court s discretion and the court may deny a request to amend a
complaint as long as it articulates a sound justification 22 Justifications for denying an amendment
include undue delay bad faith or dilatory motive on the part of the moving party, repeated failure
1“ sztlz v Lmt Offices omemA Bentz PC No ST 17 CV 116 2018 WL 671389 *9 (V1 Super Ct Jan 29
2018)(citing 0 Neal\ PMST LLC No ST 12 CV 388 2012VI LEXIS 62 at *1 (VI Super Ct Dec 3 2012))
(quoting Castillo v Kmart Corp No 2001 CV 0133 2007 U S Dist LEXIS 96544 *2 (D V I July 6 2007))
‘5 Czp/ 1am \ Czpmzm
74 VI 3 13 (VI Super Ct 2021) (citing Arvzdson 72 VI at 64)
16 See 1d
17 VI R CIV P 15
”W1 R Cw P 15(a)(1)
l"VI R CIV P 15(a)(2)
0VI R Cw P 15(c)
‘ VI R CIV P 15(a)(2)' see also Dams v UHP PIOjects Inc
74 VI 525 536 (VI 2021)
Baszc Seivzces Inc v Gm toftlze Vzrgm Islands 71 V I 652, 666 (V I 2019) (citing Reynolds v Rohn, 70 V I
887 889 (VI 2019))
Andrea Snuth v The West Ilzdzan Company Limited
Case No ST 2018 CV 00138
Memorandum Opinion and Order July 11 2022
Page 5 of 7
2022 VI Super 64U
to cure deficiencies by amendments previously allowed, and futility of the amendment 23 The
passage of time alone is not undue delay and does not require a motion to amend a complaint be
denied 24 However, delay becomes undue when it places an unwarranted burden on the court25 or
places an unfair burden on the opposing party and exposes them to potential prejudice 26 The
question of undue delay 1equires the court to focus on the movant 3 reasons for not amending
sooner 27 Additionally, liberality in pleading does not bestow on a litigant the privilege of
neglecting her case for a long peiiod of time 28
III ANALYSIS
A The Court will deny Plaintiff’s Motion for Reconsideration because Plaintiff failed
to identify a “clear error of law” that the Court needs to correct
119 Plaintiff s motion for reconsideration was filed beyond the 14 day period allowed by Rule
6 4 However, Plaintiffcontends that Plaintiff’s counsel did not become aware of the Couit s Order
from which reconsideration is sought until February 2 2022, almost five months after the order
was issued, because they did not receive the Order through the C track system Finding good cause
for the delayed filing 79 the Court will accept the delayed motion
1110 Plaintiff’s Motion for Reconsideration fails to identify a clear error of law for the Court to
conect In a motion for ieconsideration, the moving party is expected to offer the specific legal
authority it claims the Cou1t failed to apply or incorrectly applied in its 01 iginal decision 30 Hele
Plaintiff a1 gues that the court committed clear error when applying the legal standard for g1anting
a motion to amend 3‘ Plaintiff argues that the Court failed to assess whethe1 granting leave to
amend would place an unwarranted burden on the Court if the amendment was not allowed This
assertion is incorrect the Court determined that ‘ an amendment at this stage would cause
unnecessary delay for both the opposing party and the Court,’ and thus place an unwarranted
burden on the Court 32 The Court did not need to explicitly state that an unwarranted burden would
be placed on the Court if the amendment was not allowed because the Court determined that
allowing an amendment would burden the Court Plaintiff’s argument does not adequately identify
-3 Id at 666 67
’4 Toussamt v Stewmt, 67 V1 931, 946 (V I 2017), see also Dams, 74 V I at 537
5 See Toussamt 67 V1 at 946 (quoting Adams \ Gould Inc 739 F 2d 858 868 (3d Cir 1984))
6 See Slnadel Cooke: Govt ofthe Vugm Islamic No SX 16 CV 655 2019 VI SUPER 116U at *7 (VI Super
Ct Aug 26 2019)
”7 See Id at *8 (finding that delay becomes undue when a movant fails to take advantage of previous opportunities to
amend a complaint without adequate explanation)
”8 Powell v FAMProteCttve Sen Ices Inc 72 V I 1029 1043 (V I 2020) (quoting Daves v Payless Cashways
Inc
661 F 2d 1022 1025 (5th Cir 1981))
”9 See Magras v National Industrzal Servzces LLC, 75 V1 11, 17 (VI Sup Ct 2021)
30 See C1przam v Czprtam 74 V1 3 13 (V1 Super Ct 2021)
31Pl sMot Recons 3
3 Sept 27 2022VI Sup Ct Order7
Alzdlea SmIth v The West Indian Companv anted
Case No ST 2018 CV 00138
Memorandum Opinion and Order July 11 2022
Page 6 of 7
2022 VI Super 64U
how the court incorrectly applied the standard for granting a motion to amend and is therefore
unpersuasive
1111 Plaintiff also argues that the Court committed clear error when it failed to consider the
seven month stay in the proceedings when the Court denied Plaintiff’s Motion to Amend The
proceedings in this matter were stayed on August 23 2018 while the Plaintiff‘s appeal to the Third
Circuit (No 17 2777) in a nearly identical matter to the present case pended resolution The stay
was lifted on Maich 21, 2019 after the Third Circuit affiimed the District Court 5 decision to grant
Defendant’s motion for summary judgment Plaintiff did not move to amend her complaint until
May 10 2021 two years after the stay was lifted Not only did the Court consider the stay when
outlining the procedural history of this case the Court also considered that the Plaintiff waited
another two years to move to amend her complaint after the stay was lifted without articulating
any peisuasive reasons f01 the delay Plaintiff also claims that the Court did not acknowledge the
lengthy delays caused by the COVID l9 pandemic Howevei Plaintiff failed to move to amend
her complaint f01 an entire year before the COVID l9 pandemic took effect with no explanation
Additionally the matter continued to proceed remotely throughout the entirety of the pandemic
1112 Plaintiff is correct that passage of time alone does not amount to undue delay and does not
warrant denial of a motion to amend a complaint 33 However this leniency in pleading does not
give a litigant the piivilege to neglect her case for a long period of time 34 The question of undue
delay requires the Court to examine the masons for the movant s delay and why they did not take
advantages of opportunities to move to amend sooner 35 The Cou1talready found that Plaintiff did
not adequately justify the delay in moving to amend hei complaint Therefore, no clear eri01 of
law has been identified in Plaintiff’s motion for reconsideration
B Plaintiff raises new reasons for failing to amend her complaint sooner which is
inappropriate in a motion for reconsideration
1113 Motions for reconsideration are not proper for presenting new facts, raising new issues or
making new a1 guments *6 Here, Plaintiff offers new justifications fox not amending hei complaint
sooner by indicating that mediation is one of the reasons Plaintiff delayed filing hel Motion to
Amend The Court finds this hard to believe considering this case is the third iteration of her suit
that was first brought ove1 eight years ago, and the claims and parties she seeks to add are the same
or similar to previous iterations of her current suit Despite her assertion that the Defendant knew
or should have known of the claims and parties that Plaintiff sought to add with her amendment
based on the extensive procedural history of this case, Plamtzfj’should have known to include these
claims and panties in her original pleading But more importantly Plaintiff was required to provide
33 Toussamti Stewart 67 V I 931 946 (V I 2017) see also Dams v UHF Proyects Inc 74 V I 525 536 (V I
2021
34 See) Powell \ FAM Protective Set wees Inc 72 V I 1029 1043 (V I 2020)
35 See See Shrader Cooke v Govt 0fthe Virgin Islands No SX 16 CV 655 2019 VI SUPER 116U at *7 (VI
Super Ct Aug 26 2019)
3" People 0ft/ze Vugm Islands v Hatclzel 68 V I 367 376 (V I Super Ct 2018)
Andrea Smtth v The West Indian Company Lumted
Case No ST 2018 CV 00138
Memorandum Opinion and Order July 1 l 2022
Page 7 of 7
2022 VI Super 64U
those reasons in her Motion to Amend Complaint Because she did not, it would be inappropriate
for the Court to consider them in her Motion for Reconsideration
IV CONCLUSION
1114 Reconsidelation is a drastic remedy that can only be granted based on one of the four
grounds enumerated in Rule 6 4 of the Virgin Islands Rules of Civil Procedule (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’s ruling 37
Motions for reconsideration are not a second bite at the apple’ 38 and are not proper for making
new arguments 39 A motion for reconsideration based on the need to correct clear error of law
requires the movant to identify the specific legal authority it claims the Court failed to apply or
incorrectly applied in its original decision 40
1115 Here, Plaintiff asks the Court to reconsider its orde1 denying her Motion to Amend
Complaint based on the need to correct a clear error of law While Plaintiff identifies a legal
authority by asserting that the Court improperly applied the standard for amending a complaint,
Plaintifffails to identify how the Court improperly applied the rule Additionally, Plaintiffattempts
to raise new reasons for delaying moving to amend her complaint which is inapplopriate in a
motion for reconsideration Accordingly, it is hereby
ORDERED that Plaintiff’s Motion for Reconsideration of Denial of Plaintiff 3 Motion to
Amend Complaint filed February 15 2022 is DENIED
ORDERED that a copy of this Order shall be directed to counsel of record
DATED July 1 1 2022
H ID M TEJO
udge of th Superior Court of the Virgin Islands
ATTEST
TAMARA CHARLES
By
$or LATOYA COMACHO
Court Clerk Supewisor 07 / 1 0,1 / 0706307.,
37 V I R CW P 6 4(b) see also Arwdson v Buchat 72 V I 50 64 (VI Super Ct 2019) (concluding that motions
for reconsideration must be based on one of the grounds delineated in Rule 6 4(b) ) see also Kralzk v Osage STX
Holdmgs LLC 74V] 17 19 (VI Super Ct 2021)
38 Ghuawoo v John Baptiste 74 VI 294 298 (VI Super Ct 2021)
9 People 0fthe Vugm Islands v Hatcher
68 VI 367 376 (VI Super Ct 2018)
40 See 1d