IN THE SUPERIOR COURT THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN DONALD SEYMOUR, ) ) Plaintiff, ) CASE NO. ST-17-CV-347 ) Vv. ) ) NEW DESTINY, LLC, and SUSAN FORKIN, a/k/a ) SUSAN BISHOP, a/k/a SUSAN BISHOP-FORKIN, ) ) Defendants. ) ) MEMORANDUM OPINION FACTS Donald Seymour and Susan Forkin are the sole members of New Destiny, LLC, a Virgin Islands limited liability company formed in April 2017 to purchase Parcel 4-18 Estate Tabor & Harmony for $870,000.00. Parcel 4-18 is the only asset of New Destiny and that it has conducted no business other than the purchase. For an unstated period before the May 1, 2017, real estate transaction, Seymour and Forkin had an intimate relationship, and they utilized Parcel 4-18 as their home for a while after the purchase, but the relationship between Seymour and Forkin quickly deteriorated. Ultimately, Forkin obtained a domestic violence temporary restraining order, and, after a hearing on August 3, 2017', a permanent restraining order prohibiting Seymour from having any contact with Forkin. On August 7, 2017, Seymour filed a Verified Complaint in this action seeking a declaratory judgment, dissolution of New Destiny, LLC, judicial supervision of the winding up of the business, and an accounting. According to Forkin, after a July 18, 2017, hit and run automobile accident ' Forkin v. Seymour, Case No. ST-17-DV-114. Seymour v. New Vestiny, et al. Case No. ST178-CV-347 Memorandum Opinion and Order, September 18, 2018 Page 2 of 18 during which Seymour was driving Forkin’s vehicle and Seymour’s August 24, 2017, arrest for violation of the restraining order, Seymour left the Virgin Islands.” Forkin filed a Verified Answer, Affirmative Defenses and Counterclaim, including claims for assault and battery, stalking, violation of the restraining order, damages, and constructive trust, on October 13, 2017. Following the entry of a Case Management Order on October 19, 2017, the parties submitted, and the Court approved, a stipulated Scheduling Order that called for mediation to be completed by June 15, 2018, with which deadline the parties have not complied. The default of New Destiny was entered December 8, 2017, but, without moving to vacate the default, Forkin’s counsel purported to file an Answer, Affirmative Defenses, and Counterclaim on behalf of New Destiny on December 28, 2018. New Destiny’s counterclaim alleges that no Operating Agreement for New Destiny was ever adopted and that the percentage ownership of each member is “unknown”, but asks the Court to dissolve New Destiny, determine the distributional interest and rights of the members, appoint a receiver to manage and wind down the business, and award damages to New Destiny because Seymour breached his duties of care, loyalty, and fidelity to the best interests of the LLC. In large part, Seymour, Forkin, and New Destiny pursue similar remedies-some form of court supervised liquidation of New Destiny’s assets-but, as could reasonably be expected given Seymour and Forkin’s unfortunate personal history, the litigants have been able to agree on very - * The Court takes judicial notice of the records of this Court indicating that there is an outstanding arrest warrant for Seymour in Case No. ST-17-CR-234, in which he is charged with reckless endangerment in the second degree, unauthorized use of a vehicle, vehicle tampering, driving under the influence of intoxicating liquor, and driving with an illegal blood alcohol level. According to the People’s December 6, 2017, Emergency Motion to Revoke Defendant’s Bail and Order a Warrant for His Arrest, Seymour has three previous driving while intoxicated convictions within the past three years [as alleged in Forkin’s Counterclaim] and is purported to have absconded from supervision by failing to return to the Virgin Islands, in violation of the conditions of his release, after being unsuccessfully terminated from a court-ordered treatment program in Antigua. The records in Case No. ST-17-CR-256 reveal that, while released on bail in Case No. ST-17-CR-234, Seymour was also charged with three counts of violation of the domestic violence restraining order for harassing text messages to Forkin on August, 16, 2017, and August 23, 2017, and for disconnecting the power to the Tabor & Harmony property, where Forkin was residing, on August 22, 2017. Seymour v. New Destiny, et al. Case No. ST178-CV-347 Memorandum Opinion and Order, September 18, 2018 Page 3 of 18 little either substantively or procedurally, and the case has essentially come to a halt because of the numerous motions filed by the parties, their contentious positions, Seymour’s absence from the jurisdiction, the complications created by the domestic violence injunction and the outstanding warrants, and the Court’s inability to address the motions as they were filed. Pending before the Court are: 1. Seymour’s November 27, 2017, Motion to Sever Counterclaims?; 2. Seymour’s January 22, 2018, Motion to Strike New Destiny LLC’s Purported Answer, Affirmative Defenses and Counterclaims; 3. Forkin’s February 13, 2018, Motion for a Hearing to Establish the Existence of an Operating Agreement for New Destiny, LLC; 4. Seymour’s March 23, 2018, Motion for Judgment on the Pleadings; 5. Forkin’s April 18, 2018, Motion to Compel Plaintiff's Attendance at Deposition and for Monetary Sanctions/Dismissal; 6. Seymour’s June 11, 2018, Motion for Clarification of the May 10, 2018, Order and to Extend Deadlines; 7. Forkin’s July 19, 2018, Motion to Quash Plaintiff's Notice of Deposition; and 8. Seymour’s July 31, 2018, Motion for Ruling to Allow Plaintiff's Remote Deposition and Mediation, and to Further Extend Deadlines. STANDARD Under Rule 42(b) of the Virgin Islands Rules of Civil Procedure, the Court may order a separate trial of one or more issues or claims for convenience, to avoid prejudice, or to expedite and economize. V.I. R. Civ. P. 12(f) empowers the Court, either sua sponte or upon the motion of a party, to strike defenses for insufficiency, redundancy, immateriality, impertinence, or scandalous materials.* 3 Because neither party addresses the threshold issue of whether Seymour may properly bring his motion to sever as a part of his Answer to the Counterclaims, the Court will not reach it. ‘In re Adoption of the V.I. Rules of Civ. Procedure, 2017 V.1. Supreme LEXIS 22, 68 (V.I. Apr. 3, 2017) (providing that “The court may strike from a pleading an insufficient defense or any or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or if a response is not allowed within 21 days after being served with the pleading.”). Seymour v. New Vestiny, et al. Case No. ST178-CV-347 Memorandum Opinion and Order, September 18, 2018 Page 4 of 18 V.I.R. Civ. P. 12(c) permits a party to move for judgment on the pleadings after the pleadings are closed. In resolving a motion for judgment on the pleadings, the Court must accept all well-pleaded material allegations of the nonmoving party as true and view all facts and inferences in the light most favorable to the nonmoving party. The Court’s analysis is akin to that on a motion for summary judgment, and the Court may not consider matters outside the pleadings without converting the motion to one for summary judgment and giving the parties an opportunity to fully respond. The Court generally has wide discretion concerning discovery matters; but, its discretion is limited by the relevancy and materiality of the evidence sought.” The Court is required to limit the scope of discovery when (1) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive, (2) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action, or (3) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.° V.I.R. Civ. P. 37 permits a party to move to compel discovery upon certification that the movant has conferred or attempted to confer in good faith with the person failing to make discovery in an effort to obtain the discovery without court action. If the Court denies a motion to compel, it can enter a protective order under V.I. R. Civ. P. 26(c). A party seeking a protective order has the burden of establishing good cause by demonstrating a particular need for protection; and broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do 5 Government v. Rivera, 21 V.1. 231, 235 (7.Ct. 1985). 6 Addie v. Kjaer, 50 V.1. 946, 952-53 (D.V.I. 2008). Seymour v. New Vestiny, et al. Case No. ST178-CV-347 Memorandum Opinion and Order, September 18, 2018 Page 5 of 18 7 Upon a finding of good cause, the Court has several not satisfy the test for a protective order. remedies available to it in fashioning an appropriate remedy.® DISCUSSION Severance Directing the Court to both V.I. R. Civ. P. 20 and 42, Seymour contends that Forkin’s counterclaims “have nothing to do with the dissolution of the LLC”, involve completely separate facts, and have no common questions of law or fact. Seymour then argues that “[a]llowing joinder” of the counterclaims would not expedite resolution of the parties’ disputes and that Seymour would suffer prejudicial delay from their inclusion. On the other hand, Forkin cites Superior Court Rule 34, claiming it requires “all claims. ..for relief” to be asserted in an answer or counterclaim, albeit conceding that Rule 34 “is silent as to what claims represent counterclaims.” After defining compulsory and “permissible” counterclaims, Forkin cites Big Bear Construction, Inc., v. Holford,’ as requiring both to be pled with the answer regardless of whether they “arise out of the same transaction or occurrence that is the subject matter of the opposing party’s claim.” Both parties would have the Court focus on the wrong standard. Forkin overlooks the fact that Superior Court Rule 34 was repealed on April 7, 2017. And Seymour conflates the question before the Court-it is not whether the counterclaims should be “joined” with the dissolution action, but instead whether, having been pled in this action, the counterclaims should be severed as Seymour requests. Td. 8 fd. 92017 WL 234233 (V.I. Super. Ct. Jan. 15, 2016). Seymour v. New Vestiny, et al. Case No. ST178-CV-347 Memorandum Opinion and Order, September 18, 2018 Page 6 of 18 Nor is this a straightforward dissolution action as Seymour would have the Court believe, significantly because the parties were not diligent in specifying their ownership or distribution interests in the LLC in a written operating agreement at the time of New Destiny’s formation, despite what appear to be contributions to New Destiny significantly disparate in kind and amount. Rather, it appears to the Court that, because of the contentious personal relationship of the parties from which portions of the Counterclaim arise, the fallout from their domestic disputes and the expense and inconvenience caused by their personal interactions are intimately involved in the determination of their respective contributions and to a fair and just distribution of the proceeds from the sale of New Destiny’s assets.'? Certainly, determination of Forkin’s assault and battery, stalking, and violation of the restraining order claims is not as directly related to New Destiny as her claims for damages, and constructive trust. But no significant saving of judicial resources would spring from separate resolution of the former matters, since the same history of interaction between the parties is relevant to all of those issues. Consequently, the Court does not find that a severance of the counterclaims would promote convenience, expedite the disposition of this case, or economize scarce resources of the Court or the parties. Effectively, addressing Forkin’s Counterclaim as part of this action will require the same resources, regardless of whether that is accomplished before or after the sale of Parcel 4-18. Even were an immediate sale of the subject property to occur, the parties and the Court would still likely face prolonged and contentious litigation concerning Seymour and Forkin’s contributions to the New Destiny and the proper disposition of the proceeds, issues substantively tied to the property owned in the LLC and significantly impacted by Seymour and Forkin’s interactions during their personal relationship. In fact, Seymour concedes in his Verified Complaint that it is '° In fact, even though it appears the parties were never married, the Court wonders whether these issues, including the distribution of New Destiny’s assets, could have been better addressed in the Family Division of the Court. Seymour v. New Vestiny, et al. Case No. ST178-CV-347 Memorandum Opinion and Order, September 18, 2018 Page 7 of 18 impossible for the parties to manage New Destiny because their trust and ability to communicate with each other is “irretrievably lost.” Nor does the Court find that Seymour would be prejudiced by resolving the issues raised in the Forkin’s Counterclaim in this case, as opposed to separately. Although Seymour is quick to attribute to Forkin an “improper motive...to tie up the LLC dissolution matter in order to secure funds”, Seymour demonstrates no prejudice from joint resolution of Forkin’s Counterclaim. Seymour does claim that, because of his economic circumstances, a delay in the distribution of the assets of New Destiny while Forkin’s counterclaim is addressed will cause him economic prejudice. But Forkin disputes Seymour’s assertion of economic hardship, and, given that Seymour is outside the jurisdiction based at least in part upon the ramifications of his interaction with Forkin and that it appears unlikely that Seymour will ever return voluntarily to this jurisdiction, the Court does not believe that distribution of the proceeds from the sale of the assets of New Destiny, while requiring then Forkin to then pursue Seymour to obtain relief upon any judgment she might obtain on her Counterclaim, would be in the interests of justice. Seymour’s economic circumstances are the result of his own actions, and he cannot recast those circumstances as prejudice flowing from litigation he initiated. While the central issue before the Court involves New Destiny, the Counterclaim largely relates to the property that constitutes the sole asset of New Destiny and arises from acts occurring in the Virgin Islands during roughly the same period of time as the formation and operation of New Destiny. The issues raised in the Counterclaim are inextricably intertwined with those involved in the dissolution of New Destiny, and, other than to assert a delay in asset distribution, Seymour does not show prejudice from a joint trial. Seymour does not allege that evidence or witnesses would be lost, or that the positions of the parties would be adversely affected by disposition of all issues in a single action. As a result, Seymour’s Motion to Sever Counterclaims will be denied. Seymour v. New Vestiny, et al. Case No. ST178-CV-347 Memorandum Opinion and Order, September 18, 2018 Page 8 of 18 Motion to Strike/Motion for Hearing Seymour submits that Forkin cannot unilaterally engage counsel to represent New Destiny and file an answer and counterclaim on its behalf because, under 13 V.I.C. §1301(a)(1) and 13 V.I.C. §1404(a)(2), a member managed limited liability company may conduct business only with the approval of a majority of its members. Since Seymour has not consented to direct participation of the company in this litigation, he asserts New Destiny’s Answer, Affirmative Defenses and Counterclaim constitutes an insufficient defense and immaterial matter. In its February 6, 2018, Opposition, New Destiny fails to directly respond to Seymour’s contentions, but instead engages in a largely semantic discussion, claiming that, rather than agreeing that no operating agreement “exists”, the parties actually agree only that no operating agreement “has been established”. Because 13 V.I.C. §1104 provides that an operating agreement need not be in writing, New Destiny argues that Plaintiff has not denied the existence of an operating agreement, urging the Court to conduct a hearing to determine whether one exists and what its terms might be. In New Destiny’s Opposition, and through Forkin’s separate Motion for a Hearing to Establish the Existence of an Operating Agreement for New Destiny, LLC, defense counsel urges the Court to conduct the hearing, supporting the latter motion with the affidavit of Forkin. Although Forkin’s affidavit reiterates many of the allegations of her Answer, Affirmative Defenses, and Counterclaim, nowhere in the affidavit does she even use the phrase “operating agreement”, alleging only that “Plaintiff and I agreed that New Destiny, LLC, would be member managed and the assets would be equally split.” Even assuming the parties have so agreed, an agreement that addresses only the distribution of the assets, without more, is not an operating agreement “regulat[ing] the affairs of the company and the conduct of its business” as defined in 13 V.LC. §1104(a). Seymour v. New Vestiny, et al. Case No. ST178-CV-347 Memorandum Opinion and Order, September 18, 2018 Page 9 of 18 In his Reply, Seymour fails to even address. Forkin’s contention that the parties agreed to an “equal split” of assets, instead reiterating his initial contentions and continuing the semantics, arguing that by admitting Paragraph 11 of the Verified Complaint Forkin has made a judicial admission that no operating agreement “has been established”, such that it is therefore undisputed that no operating agreement “exists”. Of course, for the purposes of the Motion to Strike, the issue raised in Seymour’s motion is not whether the parties agree on the “establishment” or “existence” of an operating agreement, but whether New Destiny’s Answer, Affirmative Defenses, and Counterclaim should be stricken. The Clerk of the Court entered the default of New Destiny, LLC, on December 8, 2017. On December 13, 2017, Andrew L. Capdeville, Esq., and Julita K. de Leon, Esq, stipulated to the substitution of de Leon for Capdeville as counsel for Forkin, and de Leon filed a Notice of Appearance on Forkin’s behalf on December 14, 2018. Without entering an appearance on behalf of New Destiny, and without moving to vacate its default, de Leon filed an Opposition to Motion for Entry of Default and Motion to Answer, Affirmative Defenses, and Counterclaim Nunc Pro Tunc [sic] on December 28, 2017. Attorney de Leon has failed to demonstrate, or even assert, any authority for her to represent New Destiny. While de Leon argues that she “was retained on or about December 8, 2017”, “[a] stipulation for substitution of counsel was filed on December 13, 2017”, and she “filed her Notice of Appearance on December 14, 2017”, she does not specifically represent that she was retained or authorized to represent New Destiny, and both the stipulation and the appearance relate on their faces only to her representation of Forkin. Even were the Court to assume that Forkin asked de Leon to act on behalf of New Destiny in addition to herself, which de Leon does not allege, de Leon fails to show that Forkin had the authority to retain de Leon to act on behalf of New Destiny. De Leon has not asserted that the supposed “oral operating agreement” so empowers Seymour v. New Destiny, et al. Case No. ST178-CV-347 Memorandum Opinion and Order, September 18, 2018 Page 10 of 18 Forkin, and, in the absence of such an allegation, the Court must look to the statutory sections upon which Seymour relies. Clearly, 13 V.I-C. §1404 requires a majority of the members of New Destiny to make a decision such as the employment of counsel to pursue a counterclaim against one of the members, and a majority decision in that regard is obviously lacking here. V.I. R. Civ. P. 12(f) empowers the Court to strike defenses for insufficiency, redundancy, immateriality, impertinence, or the inclusion of scandalous materials. Because the default of New Destiny has been entered, because de Leon has not moved to vacate that default, because de Leon has presented the Court with authority only to act on behalf of Forkin, and because employment of an attorney to defend New Destiny in litigation is clearly part of the business of New Destiny requiring approval by a majority of its members in the absence of a specific provision in the company documents, New Destiny’s purported Answer, Affirmative Defenses, and Counterclaim is a nullity and will be striken as insufficient and immaterial. The Court views the positions of both parties on the Motion for a Hearing as reflective of the apparent gamesmanship that runs throughout their posture on several of the most recently raised issues. Seymour avoids directly addressing Forkin’s statements regarding the existence of an oral operating agreement and the parties’ alleged agreement for an equal distribution of New Destiny’s assets, instead seeking to bootstrap Forkin’s precise response to a vague allegation in the Verified Complaint into a conclusive judicial admission. And, because Forkin does not even allege the terms of the alleged “oral operating agreement” in her affidavit, where she would be subject to the penalties of perjury, Forkin’s request for a hearing appears to be merely an attempt to capitalize on a tactical advantage, knowing that Seymour faces arrest should he return to the Territory for a hearing on an issue, the proof on which will inevitably devolve into a “he said — she said” exchange and the resolution of which will depend largely on the credibility of the parties. That issue can be heard at the dispositional phase of this proceeding. Seymour v. New Destiny, et al. Case No. ST178-CV-347 Memorandum Opinion and Order, September 18, 2018 Page 11 of 18 Had Forkin even alleged in her affidavit that the oral operating agreement authorized her to act on behalf of New Destiny and specifically swore that it contained a provision that she receive distribution of one-half of the assets of New Destiny, the Court might view her request for a hearing more favorably. But, her affidavit asserts only that, “Plaintiff and I agreed that...the assets would be equally split”, without stating where or when such an agreement was made and without stating that the 50-50 split was set forth in the “oral operating agreement”. In the absence of that allegation, as the request currently stands, the Court is not inclined to conduct a separate, pretrial hearing on an issue that will no doubt have to be addressed during the determination of the proper distribution of the proceeds from the sale of the Tabor & Harmony property. Consequently, Forkin’s Motion for a Hearing is denied without prejudice. Motion for Judgment on the Pleadings On March 23, 2018, Seymour filed a Motion for Judgment on the Pleadings representing that, because the August 3, 2017, domestic violence restraining order prohibits Seymour from having any contact with Forkin, and since the parties agree that, as a result of the restraining order, the economic purpose of New Destiny is likely to be unreasonably frustrated and that it is not reasonably practical to carry on the business of New Destiny, 13 V.I.C. §1801(4) requires that the company be dissolved and its business be wound up. Forkin’s April 5, 2018, Opposition first continues the ongoing semantic dispute, claiming that, since the pleadings fail to resolve the issue of whether an operating agreement “exists”, judgment on the pleadings is inappropriate. Forkin then points out that two other matters also remain unresolved, the contributions of the parties and whether it is “impossible” for Seymour and Forkin to manage New Destiny together. Paragraph 15 of Forkin’s Answer specifically denied that her total contribution to New Destiny is $15,000.00, and Paragraph 24 specifically denied that it is impossible for Seymour and Forkin to manage New Destiny together. Forkin’s Counterclaim does Seymour v. New Vestiny, et al. Case No. ST178-CV-347 Memorandum Opinion and Order, September 18, 2018 Page 12 of 18 submit that she alone has paid the monthly mortgage since the purchase of the property, has paid for repairs to the subject property, and has spent money for hurricane preparation and restoration, to acquire and deliver furniture, fixtures, rugs, and personal effects, and for landscaping. And, the parties could conceivably communicate through their counsel or third parties to attend to New Destiny’s affairs. Further, the Court notes that the restraining order prohibiting Seymour from contacting Forkin was issued on August 3, 2017, and that its one-year duration has passed. Neither party has advised the Court whether Forkin has sought an extension of the restraining order, and, to the extent that she has not, it would appear that the parties might lawfully be able communicate with each other regarding the operation of New Destiny.'! Thus, given the personal history of the litigants, while it is certainly unlikely that the parties would be able to cooperatively engage in New Destiny’s business, it appears it is not “impossible” for the parties to manage New Destiny because of the restraining order. In his May 3, 2018, Reply, Seymour reiterates that Forkin has agreed in her Verified Answer that all of the requirements for dissolution of New Destiny are present, such that the sole members of the company are of the unanimous opinion that dissolution is appropriate. As to the first point raised in Forkin’s Opposition, Seymour is correct. Regardless of whether an oral operating agreement exists, that operating agreement “may not vary the requirement to wind up the limited liability company’s business in a case specified in section [Title 13 V.LC. §] 1801...items (3) and (4).”? 'l In so observing, however, the Court is not encouraging Seymour to have direct contact with Forkin. It is clear that the animosity between the parties remains acute, and this Court does not reach issues more appropriately determined in the Family Division, namely, whether Seymour’s purported violations of the term of the restraining order and his unauthorized absence from the jurisdiction serve to toll the term of the restraining order or extend its effect. * Title 13, V.1. C. §1104(b)(6). (Section 1104(b)(6) makes an inaccurate reference to § 1801, “subsection (b)”, items (3) and (4), since no “subsection (b)” of 13 V.LC. § 1801 exists, but instead, items (3) and (4) are subsections of § 1801.) Seymour v. New Vestiny, et al. Case No. ST178-CV-347 Memorandum Opinion and Order, September 18, 2018 Page 13 of 18 The Court does not find that the requirements of 13 V.I.C. § 1801(3) are satisfied, since, as discussed above, the restraining order itself does not “make it unlawful for all or substantially all of the business of the company to be continued”. But, the Court does find that, based on the deterioration of the personal relationship of the litigants and their inability to cooperate in managing the affairs of New Destiny, “the economic purpose of the company is likely to be unreasonably frustrated”, as stated in 13 V.I.C. § 1801(4)(i). Because Forkin has agreed in paragraph 25 of her verified Answer that “adequate justification exists to issue a Declaratory Judgment that the economic purpose of NEW DESTINY is unreasonably frustrated under 13 V.I. C. 1801(4)(i)” and that “NEW DESTINY should be dissolved pursuant to 13 V.I. C. 1801(4)@)”, there is unanimous agreement between the sole members of New Destiny that it should be dissolved. The fact that the relative contributions and distribution rights of the parties remain to be determined and the possibility that the parties could conceivably communicate in some manner to accomplish the business of New Destiny are certainly “genuine issues”, but they are not issues of “material fact” sufficient to prevent a determination of the separate issue of whether the requirements of 13 V.I. C. § 1801(4)() have been met. Because the sole members of the limited liability company have agreed that the company should be dissolved, the other issues can be determined at the phase of these proceedings determining the distribution rights of the members. Thus, the Court finds that Seymour’s Motion for Judgment on the Pleadings should be granted in part. However, to insure that the interests of the parties in the assets of New Destiny are adequately protected and appropriately determined, the Court finds it appropriate to provide that the parties jointly hold the assets of New Destiny, and the proceeds from the sale of those assets, in a constructive trust for the benefit of one another until the resolution of the issues of the relative contributions and distribution rights of the parties can be determined. Seymour v. New Vestiny, et al. Case No. ST178-CV-347 Memorandum Opinion and Order, September 18, 2018 Page 14 of 18 Motion to Compel Attendance at Deposition/Motion for Clarification/Motion to Quash Plaintiff's Notice of Deposition/ Motion for Ruling to Allow Plaintiff’s Remote Deposition and Mediation, and to Further Extend Deadlines. On March 21, 2018, Forkin noticed Seymour’s deposition for April 4, 2018, on St. Thomas, but Seymour did not appear. Next, on April 4, 2018, Forkin noticed Seymour’s deposition for 10:00 a.m. on April 20, 2018, on St. Thomas, and on April 11, 2018, Seymour noticed Forkin’s deposition for the same date and time and filed a Notice of Telephonic Deposition of Donald Seymour for 8:30 a.m. on the same date. Seymour then cancelled those depositions and noticed Forkin’s deposition for April 30, 2018. On April 18, 2018, Forkin filed a Motion to Compel Plaintiff Attendance at Deposition and for Monetary Sanctions/Dismissal, contending that Seymour failed to appear for deposition because he is subject to arrest if he returns to St. Thomas and requesting that the Court compel Seymour’s personal attendance, sanction Seymour by directing him to pay Forkin’s fees and costs, or dismiss the Complaint. On the same day, Seymour filed a Motion for Leave to Take Remote Telephonic Deposition of Donald Q. Seymour, arguing that a telephonic deposition is “the most practical way forward”, and submitting a sworn statement from Seymour claiming he is unable to travel because of financial hardship since his sole income is a $2,000.00 monthly social security check. After a status conference on Apri! 30, 2018, at which the Court granted Seymour’s request for a 10-day extension to respond to the Motion to Compel, the Court entered an Order on May 17, 2018, memorializing its oral rulings. Forkin opposed Seymour’s request for a telephonic deposition on May 7, 2018, characterizing Seymour’s claim of indigency “doubtful”, without presenting any evidence on the issue, and arguing that Seymour has failed to show hardship sufficient to justify exclusion from the general rule that a plaintiff is expected to appear for deposition in the forum he selected when bringing suit. Seymour v. New Vestiny, et al. Case No. ST178-CV-347 Memorandum Opinion and Order, September 18, 2018 Page 15 of 18 On May 24, 2018, Seymour filed an opposition to the Motion to Compel, requesting leave to file the motion out of time. Admitting the presence of the restraining orders and his failure to return to the jurisdiction as ordered, Seymour claims Forkin is improperly seeking to capitalize on “Plaintiff s troubles” and portray him in a bad light, and reiterates his claim of financial hardship. Asserting that Seymour’s counsel informed Forkin’s counsel of Seymour’s unavailability before she noticed Seymour’s deposition, Seymour asks the Court to deny sanctions since Seymour incurred costs in attempting to schedule remote depositions, indicating the parties are “at an impasse” and calling an in-person deposition “a practical impossibility.” Seymour also filed a Motion for Clarification of the May 10, 2018, Order and to Extend Deadlines, representing counsel does not recall that the Court orally approved the motion for remote deposition as counsel’s interpretation of the Order suggests and asking to extend the discovery and mediation deadlines. On July 16, 2018, Seymour rescheduled the telephonic and videographic deposition of Seymour for August 15, 2018, and three days later Forkin moved to quash the notice of deposition as violative of V.I. R. Civ. P. 30(b)(4). Seymour filed a Motion for Ruling to Allow Plaintiff's Remote Deposition and Mediation, and to Further Extend Deadlines on July 31, 2018, indicating that a ruling to allow Seymour’s remote deposition is necessary to move the case forward, purporting to conduct a Banks analysis, and expressing a willingness to appear for a video deposition. In an apparent attempt to garner sympathy, Seymour’s counsel argues that Forkin has separated Seymour from his “life savings”, that he had “no viable living options” on post-hurricane St. Thomas, and that, because of Seymour’s financial hardship, “the Court should avoid drawing the inference that Mr. Seymour’s absence was ‘procured by him’”. On August 10, 2018, Forkin opposed Seymour’s Motion for Ruling to Allow Plaintiff's Remote Deposition, again arguing that Seymour must appear in the jurisdiction in which he filed Seymour v. New Vestiny, et al. Case No. ST178-CV-347 Memorandum Opinion and Order, September 18, 2018 Page 16 of 18 suit, has failed to substantiate his claim of undue burden, and should not be allowed to “evade the long arm of the law” to Forkin’s prejudice. Finally, Seymour cancelled the deposition pending a decision by the Court through a Notice filed on August 14, 2018. From the parties’ recent submissions, it is apparent to the Court that resolution of these discovery disputes is necessary for the Court’s efforts to move this case forward to ever bear fruit. Rather than spend an inordinate period of time discussing the detailed aspects of the parties’ compliance or lack thereof, the Court will instead attempt to fashion a viable means for the parties to obtain the information they require to properly demonstrate their contributions to and distribution rights in New Destiny. Forkin argues that Seymour is required to appear for deposition in the forum in which Seymour chose to bring this action, absent good cause, and claims that she would be prejudiced by a telephone deposition because it would be difficult to examine Seymour regarding “numerous document” and she could not observe Seymour’s demeanor and facial expressions. While those concerns may well be justified, it also appears to the Court that Forkin’s adamancy is, at least in part, the result of her knowledge that Seymour faces arrest for violation of the restraining order she obtained should he return to the Virgin Islands. And, regarding her request for sanctions, while Forkin provides the history of her attempt to schedule Seymour’s deposition, Forkin has failed to properly certify that she has in good faith conferred or attempted to confer in an effort to obtain compliance without court action as required by V.I. R. Civ. P. 37(d)(1)(B) and 37-1. Conversely, contrary to Seymour’s contentions, the Court concludes that Seymour’s unfortunate circumstances are the result of his own actions. His attempt to avoid a personal appearance at deposition is an opposing tactical move made with the knowledge that he faces potential arrest and other adverse consequences should he come to the Virgin Islands. Having chosen the Virgin Islands as the forum for this action, Seymour cannot now be permitted to Seymour v. New Vestiny, et al. Case No. ST178-CV-347 Memorandum Opinion and Order, September 18, 2018 Page 17 of 18 unilaterally dictate the method Forkin must utilize in taking his deposition in another location merely because he has voluntarily absented himself from this jurisdiction. The depositions of Seymour and Forkin are obviously essential aspects of the discovery phase of this case in preparation for proof on the issues of their respective contributions and distribution rights in New Destiny. Without Court resolution of these disputes, this case will be forever stalled. Consequently, the Court presents Seymour with three options, and Seymour shall notify the Court and opposing counsel of his choice by October 1, 2018. Ata date and time within 45 days of date of this Opinion, as specifically agreed upon by the parties: (1) Seymour may appear in the Virgin Islands for a live deposition; (2) Seymour may appear for a live deposition in California, at his sole expense, including prepayment of the airfare, lodging, and other reasonable expenses of personal attendance by Forkin and her counsel; or (3) Seymour may appear, at his sole expense, for a remote deposition taken by simultaneous video feed in such places and in such a manner that Forkin and her counsel can easily and clearly observe Seymour’s demeanor and facial expressions during the deposition. Should Seymour select the third option, counsel for Forkin shall, at least ten working days before the agreed upon deposition date, provide premarked clear and legible copies of any documents or other exhibits upon which counsel for Forkin desires to question Seymour to counsel for Seymour, who shall forthwith transmit them to Seymour by a means reasonably calculated to insure that they arrive in Seymour’s possession sufficiently in advance of the deposition to permit Seymour to bring the documents to the deposition. The Court is of the opinion that there have been sufficient technological advances to permit a remote deposition that Seymour v. New Vestiny, et al. Case No. 8T178-CV-347 Memorandum Opinion and Order, September 18, 2018 Page 18 of 18 will have image and sound quality sufficiently similar to that of live testimony, and Seymour must insure that the equipment on both ends of the video feed meets current standards for forensic use. Regarding sanctions, the Court has determined that, under the circumstances presented, the imposition of sanctions is inappropriate at this time. Both parties have incurred substantial expenses in arranging and appearing for aborted depositions, and Seymour will bear significant additional expense in complying with the Court’s directive. In so ruling, the Court reserves the option of imposing sanctions should either Seymour or Forkin fail to cooperate in arranging Seymour’s deposition and otherwise complying with the Court’s Order. Consequently, Forkin’s April 18, 2018, Motion to Compel Plaintiff's Attendance at Deposition and for Monetary Sanctions/Dismissal will be granted in part and denied in part; Seymour’s June 11, 2018, Motion for Clarification of the May 10, 2018, Order and to Extend Deadlines will be denied as moot; Forkin’s July 19, 2018, Motion to Quash Plaintiff's Notice of Deposition will be denied as moot, Seymour having cancelled the subject deposition; and Seymour’s July 31, 2018, Motion for Ruling to Allow Plaintiff's Remote Deposition and Mediation, and to Further Extend Deadlines is also denied as moot, except that the parties shall meet and confer and submit a stipulated proposed revised scheduling order to the Court by October 10, 2018, and Seymour may attend mediation by telephone. An Order consistent with this Memorandum Opinion shall issue. Dated: September 18, 2018. SSE —— HON. MICHAEL C. DUNSTON TEST: Estrella H. George JUDGE OF THE SUPERIOR COURT of the a KY OF THE VIRGIN ISLANDS Donna D/ Donovan ,/ Vv Court Clerk Supervisor 10 (OOK A cl byt