EL ET AI MITE EAS AER, cE TAB RRL SR AS RTA eta SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN WILLMOUR DANIEL, ) ) Plaintiff, ) CASE NO. ST-17-CV-293 ) vs. : Cite as: 2019 VI SUPER 11U GOVERNMENT OF THE VIRGIN ISLANDS; CLAUDE E._ ) WALKER, in his official capacity as ATTORNEY GENERAL ) OF THE VIRGIN ISLANDS; VIRGIN ISLANDS DEPARTMENT OF PROPERTY AND PROCUREMENT; PATERNITY AND CHILD SUPPORT DIVISION OF THE VIRGIN ISLANDS DEPARTMENT OF JUSTICE; Charlotte Poole-Davis, in her official capacity as Director, PATERNITY AND CHILD SUPPORT DIVISION OF THE VIRGIN ISLANDS DEPARTMENT OF JUSTICE, Defendants. Nee Ne Nee Ne Ne ee ee ee ee ee’ MEMORANDUM OPINION Before the Court is Plaintiff's October 24, 2018, Motion for Leave to File Out of Time and for Partial Summary Judgment.' Because Plaintiff's request was made after the expiration of the time for filing dispositive motions, and because Plaintiff's basis for seeking an extension does not amount to excusable neglect, Plaintiff's motion will be denied. RELEVANT FACTUAL & PROCEDURAL HISTORY In November 2013, Plaintiff Willmour Daniel and Defendant Government of the Virgin Islands entered into a contract for Daniel to perform information technology management services for the Paternity and Child Support Division. The contract called for Daniel to submit monthly invoices for payment, and it appears that Daniel did so. But, when Charlotte Pool-Davis became the Director of the Paternity and Child Support Division in last quarter of fiscal year * Defendant opposed the motion on November 9, 2018, and Plaintiff replied on November 19, 2018. Leen Daniel v. Government, et al Case No. ST-17-CV-293 2019 VI SUPER 11U Memorandum Opinion, January 31, 2019 Page 2 of 6 2015, she determined that Daniel’s invoices were not sufficiently specific and suspended payments to Daniel. Daniel filed this action on June 30, 2017, alleging breach of contract and breach of the duty of good faith and fair dealing. After Defendants filed an Answer and Affirmative Defenses on August 31, 2017, the Court entered a Case Management Order on October 26, 2017, that scheduled a motions hearing for October 17, 2018, with the final pretrial conference on January 9, 2019, and jury selection on March 1 1, 2019. The Case Management Order also directed the parties to conduct a Rule 26(f) planning meeting and submit a proposed scheduling order by November 10, 2017. The resultant Stipulated Scheduling Order entered by the Court on November 16, 2017, as modified by the Court, set a deadline of September 1, 2018, for filing dispositive motions. On May 18, 2018, the parties filed a Joint Motion for Leave of Court to File Out of Time and Attached Proposed Amended Scheduling Order; and on May 22, 2018, the Court entered an Amended Scheduling Order extending, among others, the deadline for dispositive motions to September 15, 2018, while leaving the dates of the motions hearing, pretrial conference and jury selection undisturbed. At the pretrial conducted on January 9, 2019, another pretrial conference was set for February 22, 2019. Neither party filed a dispositive motion or sought and extension of time to do so before the expiration of the September 15, 2018, deadline. On October 24, 2018, 39 days after the dispositive motions deadline had passed, Plaintiff filed the motion now under consideration, asserting that, as a solo practitioner with a large caseload, Plaintiff's counsel has been “fully tasked” for the past two months, which load has been exacerbated by the withdrawal of co- counsel from a number of cases, leaving Plaintiff's counsel temporarily overwhelmed. Because [Ra EES NN a eamRNec rmen Daniel v. Government, et al. Case No. ST-17-CV-293 2019 V! SUPER 11U Memorandum Opinion, January 31, 2019 Page 3 of 6 of this heavy caseload, counsel requests that the Court “pardon his unintended tardiness” and permit him to file Plaintiff’s motion for summary judgment. In opposition, Defendants point out that (1) paragraph 7(b) of the Case Management Order provides that motions for enlargement of deadlines that do not meet the criteria of Superior Court Rule 10 “may be summarily denied”; (2) Superior Court Rule 10 permits enlargement after a deadline has expired only if “the failure to act was the result of excusable neglect”; (3) that case law in this jurisdiction” has held that an attorney’s busy work schedule “does not fall within the definition of excusable neglect”; and (4) Plaintiff's motion was filed after the deadline passed without sufficient justification for the delay. STANDARD With the promulgation of the Virgin Islands Rules of Civil Procedure, V.I. R. Civ. P. 6(b){1) governs whether a court may extend the date for the filing of a motion, providing: (1) In General. When an act is required or allowed to be done by or within a specified period, the court may upon a showing of good cause or excusable neglect, extend the date for doing that act. The court may consider whether the request to extend time is made before or after the required date; the reason for the movant's delay; whether the reason for delay was within the reasonable control of the movant; the danger of prejudice to the parties; the length of the delay; the potential impact of the delay on judicial proceedings; whether the party seeking the extension has acted in good faith, and all other relevant circumstances surrounding the party's failure to meet the ori ginally prescribed deadline. Courts have equated ‘good cause’ with the concept of “excusable neglect,’ which requires a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.”? The determination of excusable neglect is “at bottom an equitable one, where the court should take into account all 2 (citing Kansas Packing Co. v. Lavilla, 39 V.1. 71 (T.Ct. 1998)), 3 In re Adoption of the V.I. Rules of Civil Procedure, 2017 V.I. Supreme LEXIS 22, at *39-40 (V.I. Apr. 3, 2017) (Reporter's Note to Rule 6, quoting Beachside Assocs., LLC y. F; ishman, 53 V.I. 700, 713 (V.1. 2010) (internal quotation omitted)). See also, Fuller v. Brown, 59 V.1, 948 (VI. 2013). Leen Daniel vy. Government, et al Case No. ST-17-CV-293 2019 VI SUPER 11U Memorandum Opinion, J anuary 31, 2019 Page 4 of 6 relevant circumstances surrounding [the] omission... -includ[ing]...the danger of prejudice [to the opposing party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.”* In addition, V.I. R. Civ. P. 6-2 provides that the party requesting more time must also “include ... [a] statement” indicating “that the moving party has conferred with Opposing parties and [that] there is agreement or objection or that despite diligent effort, the moving party cannot ascertain opposing counsel's position”. DISCUSSION Reviewing the factors enumerated in V_L R. Civ. P. 6(6)(1) and Brown, the Court determines that a discretionary extension is not appropriate. First, it is clear that the request for an extension was not made before the expiration of the prescribed period for filing dispositive motions, a deadline that had already been extended 15 days and of which the parties had notice since the entry of the Amended Scheduling Order on May 22, 2018. Moreover, the motion was made after October 17, 2018, the date upon which dispositive motions were scheduled to be heard. Thus, the request comes after the passage of the deadline, and Plaintiff is required to demonstrate excmsalily neglect. The reason for the movant’s delay is counsel’s busy schedule. The court is sympathetic regarding the circumstances facing Plaintiff's counsel and understands that too often the unfortunate byproduct of a successful legal practice is an overwhelming work load. In this instance it appears that workload has been unexpectedly increased by the withdrawal of co- counsel from portions of counsel’s caseload. But, Virgin Islands Superior Court judges have * Brown v. People of the Virgin Islands, 49 V.1. 378, 383 (V.|. 2008) (quoting Pioneer Inv. Serv. Co. v. Brunswick Assoc., 507 U.S, 380, 395 (1993). Daniel v. Government, et al. Case No. ST-17-CV-293 2019 VI SUPER 11U Memorandum Opinion, January 31, 2019 Page 5 of 6 consistently held that “a busy schedule of counsel, by itself, does not establish excusable neglect.” “A moving party must show more than merely being too busy to have [complied].”® While counsel’s predicament may have unexpectedly been exacerbated by the withdrawal of co-counsel from a part of his caseload, the Court still must find that the reason for delay was within the reasonable control of the movant. Management of one’s workload is a key factor in the practice of law, and sometimes that management requires counsel to turn down work that would adversely affect counsel’s ability to advance the interests of all of counsel’s clients. Even when factors like the withdrawal of co-counsel create unanticipated complications, counsel may meet those challenges by getting help, through affiliation with new co-counsel, the hiring of an associate, or taking temporary measures like the addition of part time staff or research assistants. While the length of the delay in filing the motion is not extraordinary, the delay that would result from the granting of an extension would be more extensive and would come at a critical time in the life of this litigation. The Joint Final Pretrial Order was filed on December 18, 2018, the final pretrial conference was conducted on January 9, 2019, another pretrial conference was set for F ebruary 22, 2019, because of the pendency of Plaintiff's motion, and this case is set for jury selection on March 11,2019, It would be disruptive of Defendants’ trial preparation were they to be required to defend and brief a summary judgment motion at the same time, potentially resulting in prejudice to the Defendants. F urther, were the Court required to research and issue an opinion on the summary judgment motion at this late date, the potential for further delay and postponement of the trial would be evident, especially if the Court were in need of argument for the parties beyond that presented in their moving papers. > Barshinger v. Legislature of the V.1. of the U.S., ST-11-CV-24, 2014 LEXIS 99, *7 (V.I. Super. Ct. Nov. 10, 2014) {footnote omitted) (unreported) {quoting People v. Rivera, $4 V.1. 116, 124 {V.l. Super, Ct. 2010). Edwards v, Hess Oil Virgin Islands Corporation, SX-15-CV—382, 2017 V.I. LEXIS 94* {V.I. Super. Ct. June 28, 2017). ° GRS Dev. Co. v. Jarrett, 45 V.I, 211, 216 {V.I. Terr. Ct. 2003) (citing Kansas Packing). Accord Hlils y. Whitecap Inv. Corp., ST-12-CV-395, 2016 V.I, LEXIS 11, *6 & n.9 (V.1. Super. Ct.Feb. 8, 2016); Edqards v. Hess Oil Virgin . Neen nn Daniel v. Government, et al. Case No. ST-17-CV-293 2019 VI SUPER 11y Memorandum Opinion, January 31, 2019 Page 6 of 6 The Court does not doubt that counsel for Plaintiff has made the request for an extension in good faith and that counsel has been diligent in attempting to cope with the crushing workload under which he apparently labors. But, given that being busy, by itself, has been uniformly rejected as demonstrative of excusable neglect so as to compel the Court to permit the post- deadline filing of a motion for summary judgment, the request for an extension does not provide any persuasive basis for noncompliance with the Court’s scheduling order, Weighing the factors detailed in V.I. R. Civ. P. 6(b)(1) and Brown, the motion must be denied.’ CONCLUSION For the foregoing reasons, Plaintiff's Motion for Leave to File Out of Time and for Partial Summary Judgment will be denied. An Order consistent with the Opinion shall issue. uary 31, 2019 — aa HON, MICHAEL C. DUNSTON JUDGE OF THE SUPERIOR COURT OF THE VIRGIN ISLANDS ATFEST: Estrella George Clefk of Court / B s-Tyson t Clerk Supervisor” J /(/ DO G