DIVISION OF ST CROIX
GERARD CHRISTIAN
PLAINTIFF,
Civil No SX 18 CV 217
V
ACTION FOR DAMAGES
ISLANDS HOSPITAL AND HEALTH
FACILITIES CORPORATION
CITE AS 2021 v1 SUPER 58u
DEFENDANTS
Appearances
Lee J Rohn, Esq
Lee J Rohn and Associates, LLC
Christiansted U S Virgin Islands
For Plamnff
Royette V Russell, Esq
Virgin Islands Department of Justice
Kingshill U S Virgin Islands
For Defendants
MEMORANDUM OPINION AND ORDER
WILLOCKS Presiding Judge
‘1 l
THIS MATTER came before
the Court on
Defendant Walter Pederscn M D s
(hereinafter ‘ Pedersen’ ) motion for reconsideration of the Court 5 June 12 2020 order, filed on
June 16 2020 As of the date of this order no opposition has been filed in response
BACKGROUND
‘l[ 2
On June 13 2018
Plaintiff Gerard Christian (hereinafter
Plaintiff) filed a complaint
against Pedersen and Juan Luis Hospital through the Government of the Virgin Islands (hereinafter
“JLH”)
‘
l A first amended complaint was subsequently tiled However for the purpose 0t this memorandum opinion and order
‘ll 3
On January 22, 2020, the Court entered an order whereby the Court granted in part and
denied in part Plaintiff’s motion to compel Pedersen to supplement discovery responses filed on
September 17 2019 ordered Pedersen to supplement his responses to lnterrogatory Nos 6
15
l6
l7 and I9 and his responses to Demand for Production No 25 by making available for
inspection or producing the requested documents ordered Pedersen to show cause in writing why
Pedersen or Pedersen s attorney, Royette Russell, Esq
should not be required to pay Plaintiff’s
reasonable expenses pursuant to Rule 37(a)(5) of the Virgin Islands Rules of Civil Procedure and
ordered Pedersen to comply with the order within thirty days
‘11 4
On June I2 2020 the Court entered an order (hereinafter June 12 2020 Order )whereby
the Court granted Plaintiff’s motion for sanctions, filed on March 13, 2020, ordered Pedersen to
supplement his responses to Plaintiff’s written discovery requested within five days unless he has
already done so ordered Pedersen to pay Plaintiff a sum of Four Hundred dollars in attorney 3 fees
as the cost of Plaintiff s motion for sanctions within ten days ordered Plaintiff to file an affidavit
of costs and fees incurred in filing the original motion to compel discovery with the amount therein
also awarded to Plaintiff and ordered that additional discovery violations will result in additional
sanctions which may include striking Dr Pederson s affirmative defenses additional monetary
penalties or deeming the Plaintiff’s allegations as admitted In the June 12 2020 Order the Court
explained
The Plaintiff requests sanctions on the grounds that on January 22 2020 the Court
ordered Defendant Pederson to supplement discovery responses and make discovery
available to the Plaintiff within thirty days Dr Pederson was also ordered to show cause
why the Plaintiff’s reasonable attorney fees should not be paid because the Court had
granted the Plaintiff’s motion to compel discovery However Dr Pederson did not comply
with the Court’s orders in a timely manner
In the Opposition, Dr
Pederson asserts that the matter is moot because the
to give an original signature due to travel arrangements As noted by the Plaintiff in the
Reply the Defendants are not exempt from obeying the orders of this Court or the Rules
of Civil Procedure
(June 12 2020 Order)
‘|[ 5
On June 16, 2020, Pedersen filed this instant motion for reconsideration of the Court 5 June
12 2020 Order
STANDARD OF REVIEW
‘1 6
Motions for reconsiderations are governed by 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
V I R Cw P 6 4(a) Rule 6 4 further provides that
[a] motion to
reconsider must be based on
(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” 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), see also Arvtdson
’ In his motion. Pedersen stated that he filed his motion for reconsideration of the Court 5 June [2, 2020 Order pursuant
to Rule 59(e) and Rule 60(b) of the Virgin Islands Rules 0t Civil Procedure Rule 59(e) of the Virgin Islands Rules of
Civil Procedure (hereinafter“Ru|e 59(e) ) governs motions
to alter or amendajudgment ” VI R Ctv P 59(e) Rule
60(b) of the Virgin Islands Rules of Civil Procedure (hereinafter Rule 60(b)”) governs motions to relieve “a party or
its legal representative fromafinal judgment order or proceeding
V] R Clv P 60(b) However the Court sJune
12 2020 Order is not a judgment a final order nor a final judgment The fact that Pedersen expressly evoked Rule
59(e) does not in and of itself cause the motion to arise pursuant to Rule 59(e) or Rule 60(b) As such the Court finds
that Rule 59(e) and Rule 60(b) are not applicable in this instance Nevertheless this is not a fatal error to Pedersen s
motion The Virgin Islands Supreme Court has repeatedly held
that the substance of a motion and not its captaint
shall determine under which rule that motion is construed
Island Ttle & Marble LLC v Bertrand 57 V I 596 612
(2012) (quoting Joseph v Bureau ofCorrecnons 54 V I 644 648 n 2 (V I 201 1)) see also Rodngue7 v Bureau of
Corr 70 V I 924 928 n I (V I 2019) Based upon the substance of Pedersen s motion the Court will construe it as
a motion for reconsideration pursuant to Rule 6 4 of the Virgin Islands Rules of Civil Procedure which provides that
[elxcept as provided in Rules 59 and 60 relating to final orders or judgments a party may file a motion asking the
v Buchar 72 VI 50, 64 (Super Ct Nov 4 2019) ( motions for reconsideration must be based
on one of the grounds delineated in Rule 6 4(b)
)
‘][ 7
A motion for reconsideration ‘[i]s not a vehicle for registering disagreement with the
courts initial decision, for rearguing matters already addressed by the court
or for raising
arguments that could have been raised before but were not
Worldwzde Flight Servzces v
Government of the Virgin Islands 51 V I
105
110 (VI 2009) (quoting 305‘th v AT&T of 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 [Clourt 5 analysis covering issues that should have been raised in the first set of
motions
Smith v Law 0177c“ ofKarmA Bentz P C 2018 VI LEXIS 13 *15 (Super Ct Jan
29 2018) (citing to In re Infant Sherman 49 V I 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 reflexively or used as a substitute
for appeal
See In re Infant Sherman 49 V I at 458
DISCUSSION
‘I[ 8
In his motion Pedersen argued that the Court should reconsider the June 12 2020 Order
sanctioning Pedersen because Pedersen had
good cause for complying with the Court order a
mere five days after the deadline
(Motion p
1 ) Pedersen made the following assertions in
support of his argument
(i) ‘The supplementation at issue was defendant s third supplement to
discovery
and
[t]he fact that the Court denied in part and granted in part plaintiff‘s motion to
compel the discovery responses means that defendant had legitimate objections to plaintiff’s
discovery demands
(Id ) (ii)
Additionally as stated in defendants reSponse to plaintiffs motion
for sanctions the responses ordered by the Court were ready within the time limit ordered by the
Court
and
‘[i]t is clear from defendants conduct that there was no intent to violate the Court 5
Order
more specifically
‘ [t]he Certification of the responses establishes that defendant
Pedersen signed the responses on February 20, 2020
“[t]he undersigned was not able to receive
the original signature page until February 24 2020 the following workday
and
[t]hey were then
emailed to the undersigned after 5 p m on February 2|, 2020, which was a Friday ’ (Id
at pp
1
2 ) (iii) The Court 5 thirty day deadline of February 22 2020 fell on a Saturday and the responses
were filed the following Wednesday’ and
[t]hus the responses were prepared timely but filed a
mere three (3) days after the deadline
(Id
at p 2 ); (iv) The undersigned notes that the Court 5
docket sheet does not reflect that the responses were filed on February 27 2020 although the
NotiCe of Service is stamped by the Court on that date
(Id ), (v) Most notably plaintiff’s motion
for sanctions is dated February 27, 2020 the same day she was served with defendant 5 responses,
and ‘[t]herefore her motion was not warranted and was rendered moot because defendant had
already complied
’ (Id ) (vi)
Accordingly, sanction in this case is unwarranted because it is based
on a single infraction for which there is a legitimate mitigating excuse
1 (Id ), (vii)
This is so
eSpecially where defendant had supplemented discovery on two prior occasions and the conduct
at issue here is neither egregious nor flagrant
(Id )
(viii) “In this case the provision of this third
supplement to discovery does no harm to the plaintiff nor the court
and ‘ Plaintiff received these
responses almost four (4) months ago and nothing has transpired in this case since then’
to wit
[d]iscovery is still ongoing no depositions have been conducted there has been no mediation and
no trial date has been scheduled by the Court
(Id ) (ix)
The award of money sanctions is also
3 Pedersen referenced Companion Health Sermon v Kurtz 675 F 3d 75 (lst Cir 20l2) (severe sanction inappropriate
unwarranted
to wit “Virgin Islands courts and the Third Circuit has held that an award of fees
and costs pursuant to the court 5 inherent authority to control litigation will usually require a
finding of bad faith
4 (Id
at pp 2 3 )
‘][ 9
As a preliminary matter
the Court finds that Pedersen timely filed his motion for
reconsideration under Rule 6 4(a) However, looking at the plain language of his motion, Pedersen
had not based his argument on one of the four grounds enumerated in Rule 6 4(b) Thus he has
failed to meet his burden See Arvzdson, 72 V I at 64 (“motions for reconsideration must be based
on one of the grounds delineated in Rule 6 4(b) ) Furthermore, the argument and assertions made
in Pedersen s instant motion for reconsideration could have been raised before but was not More
specifically Pedersen had two opportunities to raise his argument and assertions as to why he
should not be sanctioned
first, in response to the Court’s January 22, 2020 order ordering
Pedersen to show cause within thirty days of the order, in writing why Pedersen or Pedersen s
attorney
Royette Russell Esq , should not be required to pay Plaintiff’s reasonable expenses
pursuant to Rule 37(a)(5) of the Virgin Islands Rules of Civil Procedure5 and second in Pedersen s
opposition to Plaintiff’s motion for sanctions
and Pedersen chose not to The Court will not let
Pedersen relitigate the issue now As noted above a motion for reconsideration “[i]s not a vehicle
for registering disagreement with the court 3 initial decision
for rearguing matters already
addressed by the court, or for raising arguments that could have been raised before but were not
Worldwzde Flight Serwces 51 V I at i10
‘Pedersen referenced Melchto: v Univ 0fthe VI 20]6V[ LEXIS 56 *21(VI Super Ct Apr 27 2016) Republic
ofthe Philippines v Westinghouse Electric Corp
43 F 3d 65 74 n
l 1 (3d Cir 1994); In re Prudential Ins Co Am
Sales Practice Lillg Adams 278 F 3d I75
[8| (3d Cir 2002) Chambers v NASCO Inc
50] U S 32 45 46 (I991)
5 According to the docket Pedersen never tiled anything in response to the Court s January 22 2020 order ordering
Pedersen to show cause within thirty days of the order, in writing why Pedersen or Pedersen s attorney Royette
1| 10
Moreover, the Court must point out that Pedersen himself conceded in his instant motion
for reconsideration that he did not timely comply with the Court’s January 22, 2020 order
to wit,
Pedersen acknowledged in the mot10n that he complied “with the Court order a mere five days
after the deadline” and that the responses were “filed a mere three (3) days afier the deadline ”
(Motion, pp
1 2 ) Regardless of whether Pedersen was three days or five days late, the fact ofthe
matter is that Pedersen did not timely comply with the Court’s January 22, 2020 order Pedersen,
rather than filing a motion for an extension of the deadline, Pedersen unilaterally determined that
he had good cause to disregard the deadline set forth by the Court Such indifference to the Court’s
order is simply not allowed See Title 14 V I C § 581 (“Every court of the Virgin Islands shall
have the power to punish by fine or imprisonment, at its discretion, such contempt of its authority,
and none other as
(3) dlsobedience or resistance to its lawful writ, process, order, rule decree,
or command
), see also Title 4 V I C § 243(4) (“Every court shall have power
(4) To compel
obedience to its judgments, orders, and process, and to the orders of a judge out of court, in all
actions, or proceedings pending therein ”), Title 4 V I C § 244 (“Any person who wilfully violates,
neglects or refuses to observe or perform any lawful order of a court shall be guilty of contempt
of court and upon being found guilty of such contempt may be punished as provided by law ”),
Title 4 V I C § 281(2) (“Every judicial officer shall have power
(2) To compel obedience to his
lawful orders
”), Title 4 V I C § 282 (“For the effectual exercise of the powers conferred in the
last section a judicial officer may punish for contempt in the cases and in the manner provided by
law ”) Thus, unlike what Pedersen argued, sanctions were warranted in this instance
CONCLUSION
1| 11
Based on the foregoing, the Court will deny Pedersen’s instant motion for reconsideration
Accordingly, it is hereby
ORDERED that Pedersen s motion for reconsideration of the Court 5 June l2 2020 Order,
filed on June 16 2020 is DENIED
w
DONE and so ORDERED this 6N
day of June 2021
ATTEST
M”M
Tamara Charles
HAROLD W L WILLOCKS
Clerk of the Court
Presiding Judge of the Superior Court
iéourt (JerkSW
Dated
%2 21/939a—