SUPERIOR COURT OF THE VIRGIN ISLANDS
                                   DIVISION OF ST CROIX
  ST CROIX FINANCIAL CENTER INC                       Civil No SX 18 CV 283
                                       PLAINTIFF      ACTION FOR DAMAGES

                          V                           JURY TRIAL DEMANDED
  J ACKSTAR INC AND JEFF LACROIX                      CITE AS 2021 VI SUPER \ Ft 5A
                                    DEFENDANTS

Appearances
Lisa Michelle Komives
Dudley Newman Feuerzeig LLP
St Thomas U S Virgin Islands
For Plamnfl

Dwayne Henry, Esq
St Croix U S Virgin Islands
For Defendants'

                          MEMORANDUM OPINION AND ORDER

WILLOCKS Presiding Judge

‘1] 1   THIS MATTER is before the Court for review sua sponte
                                         BACKGROUND
1| 2    On August 6 2018 Plaintiff St Croix Financial Center Inc (hereinafter Plaintiff ) filed

a verified complaint against Defendant Jackstar Inc (hereinafter Jackstar ) and Defendant Jeff

LaCroix (hereinafter     LaCroix     and together with Defendant Jackstar        Defendants ) in

connection with a lease agreement and a personal guaranty for the building located at Parcel No

2 of Estate Southgate St Croix U S Virgin Isiands (hereinafter Leased Premises ) In the verified

complaint Plaintiff alleged the following counts Count I breach of contract Count II debt and

Count III fraud Plaintiff requested the following prayers for relief (i) $145 190 84in unpaid rent

' See IV Dwayne Henry Esq 5 March 4 2020 Motion to be Relieved as Counsel
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additional rent utilities and other charges, (ii) $26 135 98 in interest on all unpaid amounts,

including accrual through the date of judgment, (iii) $14 941 90 in late fees for unpaid amounts

including accrual through the date of judgment (iv) reasonable costs and attorney 5 fees from

April 30 2019 through the datejudgment is rendered (v) pre judgment and post judgment interest

on all amounts awarded and (vi) all other and further legal and equitable relief appropriate in the

premises

‘1[ 3   On December 27 2018 upon Plaintiff’s motion for entry of default against Defendant

LaCroix the Clerk of the Court entered default against Defendant LaCroix

‘II 4   Subsequently although the entry of default against Defendant LaCroix was never vacated,

on February 15, 2019 Dwayne Henry Esq filed a notice of appearance for Defendants and filed

an answer in response to Plaintiff’s verified complaint

‘I[ 5   On June 26 2019 the Court accepted the parties proposed stipulated scheduling order and

entered it as the scheduling order in this matter

‘I[ 6   On September 13 2019 Plaintiff filed a motion to compel discovery responses to

Plaintiff’s first set of interrogatories and first set of requests for production of documents served

on June 21 2019

1[ 7    On November 15 2019 Plaintiff filed a motion for summary judgment against both

Defendants

ll 8    On February 4 2020 Plaintiff filed a motion for ruling on its outstanding motions or

alternatively, a status conference

‘ll 9   On March 4, 2020, Dwayne Henry, Esq filed a motion to be relieved as counsel for

Defendants
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‘l[ 10    On June 25 2020 a status conference was scheduled via the scheduling order but neither

Plaintiff nor Defendants appeared

‘II | 1   On July 6 2020 the Court entered an order whereby the Court ordered that that Dwayne

Henry Esq s motion to be relieved as counsel for defendants is GRANTED upon filing proof of

service ’    that this matter shall be stayed for a period of forty five (45) days to allow Defendants

an opportunity to retain new counsel and so advise the Court by filing a notice, and “that Dwyane

Henry Esq serve a copy of this Order on defendants and file proof of service of same with the

Court within twenty (20) days       (July6 2020 Order)

‘l[ 12    On September 21 2020 Plaintiff filed a motion for ruling on its outstanding motions

‘|[ 13    On July 9 2021 Plaintiff filed a renewed motion for summary judgment against both

Defendants

                                             DISCUSSION

I         The Default Entered Against Defendant LaCroix

<ll 14    Given that subsequent to the entry of default, Defendant LaCroix appeared and filed an

answer in this matter the Court will vacate the default entered against Defendant LaCroix

II        Plaintiff’s September 13, 2019 Motion to Compel Discovery Responses to Plaintiff’s
          First Set of Interrogatories and First Set of Requests for Production of Documents,
          Served on June 21, 2019

‘ll 15    In its motion Plaintiff moved the Court to order Defendants to fully respond without

objection, to [Plaintiff’s] interrogatories and requests for production, order Defendants to “pay

the attorneys fees reasonably incurred by [Plaintiff] in connection with bringing this motion and

    award [Plaintiff] other such relief as the Court deems just and proper   (Sept 13 2019 Motion

p 4) Plaintiff made the following assertion in support of its motion (i) On June 21 2019

[Plaintiff] served interrogatories and requests for production on each Defendant     (Id at p 1), (ii)
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The responses to the discovery were due by July 24 2019, however to date no responses have

been received     (Id ); (iii) “On July 30 2019 counsel for [Plaintiff] sent a letter outlining the facts

and law relating to Defendants’ delinquent discovery responses and requesting a Rule 37 1 ‘meet

and confer regarding the same ° (Id) (iv) The meet and confer ultimately took place via

telephone on August 26 2019            (Id   at p 2) (v) The delay in scheduling the meet and confer

was caused by counsel for Defendants failure to respond to counsel for [Plaintiff’s] first two

requests for dates for the conference        (Id ), (vi) ‘ During the meet and confer conference counsel

for Defendants did not dispute that responses to the discovery were both required and overdue

but explained that not responding to the discovery was a tactical decision by Defendants to save

money to put towards settling the case            (Id) (vii)     Counsel for Defendants also stated that a

settlement proposal would be provided by the close of business on Wednesday, August 28 2019

and when Defendants failed to provide a settlement proposal by that date Plaintiff sent a follow

up email to Defendants on August 30 2019 ‘ (Id ) (viii) Counsel for Defendants did not respond

to that August 30 2019 email and no settlement offer was presented                  (Id   at p 3) (ix) On

September 4, 20l9 Plaintiff ‘ wrote to counsel for Defendants and stated if no settlement proposal

or discovery response had been received by close of business on Friday September 8 2019 a

motion to compel discovery responses would be filed ‘ (Id ) (x) Counsel for Defendants did not

respond to that September 4 2019 email and neither a settlement offer, nor discovery responses

have been provided        (Id) and (xi) Defendants failure to timely respond to the requests for

production and interrogatories has waived any objections to that discovery 5 (Id )

 A copy of the July 30 2019 letter was attached to the motion as Exhibit 1
3 A copy of the August 30 2019 email was attached to the motion as Exhibit 2
4 A copy of the September 4 2019 email was attached to the motion as Exhibit ‘1
5 Plaintiff referenced Rhymer v Kmart Corp 
2008 WL 2810483
 (D V 1 July 21 2008)
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                A Standard of Review

‘ll 16   Rule 33 of the Virgin Islands Rules of Civil Procedure (hereinafter Rule 33 ) permits a

party to serve on any other party written interrogatories V I R Clv P 33(a), and requires that

 [e]ach interrogatory must to the extent it is not objected to be answered separately and fully in

writing under oath    V I R CW P 33(b)(3) Under Rule 33           [t]he grounds for objecting to an

interrogatory must be stated with specificity and [alny ground not stated in a timely objection is

waived unless the court for good cause excuses the failure     VI R Clv P 33(b)(l)(B)(4)

‘][ 17   Rule 34 of the Virgin Islands Rules of Civil Procedure (hereinafter Rule 34 ) permits a

party to serve on any other party requests for production of documents or tangible things to inspect

and requests for entry V I R CIV P 34(a) and requires that [fjor each item or category, the

response must either state that inspection and related activities will be permitted as requested or

state with specificity the grounds for objecting to the request, including the reasons’ and the

responding party may state that it will produce copies of documents or of electronically stored

information instead of permitting inspection     V I R ClV P 34(b)(2)(B) Under Rule 34         [f]or

each item or category the response must either state that inspection and related activities will be

permitted as requested or state with specificity the grounds for objecting to the request including

the reasons and [t]he production must then be completed no later than the time for inspection

specified in the request or another reasonable time specified in the response         VI R CW P

34(b)(2)(B) Untimely objections to requests for production are deemed waived See Klotzbach v

VI Water & Power Auth 
74 VI 381
 390 (VI Super Ct June 14 2021)( The Court agrees if

WAPA did not make a timely objection stating the requested customer information was private

or confidential ’ then WAPA waives that objection )
St Croir Financh Center Inc v Jackstar Inc et a1
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‘ll l8   Rule 37 of the Virgin Islands Rules of Civil Procedure (hereinafter “Rule 37 ) governs

Rule 33 and Rule 34 violations Rule 37 provides that [a] party seeking discovery may move for

an order compelling an answer designation production, or inspection                      if      (iii) a party fails to

answer an interrogatory submitted under Rule 33, or (iv) a party fails to produce documents or

fails to respond that inspection will be permitted               or fails to permit inspection           as requested

under Rule 34        VI R CIV P 37(a)(3)(B)(iii) (iv) Rule 37 further provides that                         [a] failure

described in Rule 37(d)(l)(A) is not excused on the ground that the discovery sought was

objectionable unless the party failing to act has a pending motion for a protective order under Rule

26(0)    V I R ClV P 37(d)(2) Under Rule 37                  the court must after giving an opportunity to be

heard require the party or deponcnt whose conduct necessitated the motion the party or attorney

advising that conduct or both to pay the movants reasonable expenses incurred in making the

motion, including attorney 5 fees if the motion is granted or “apportion the reasonable expenses

for the motion if the motion is granted in part and denied in part V I R CIV P 37(a)(5)(A) (C)

Moreover under Rule 37           [t]he court may on motion, order sanctions for such Rule 33 and Rule

34 violations V I R CIV P 37(d)(l)(A)(ii)

                  B Discussion

‘1[ 19   The Court will note at the outset that the Court finds the Plaintiff has in good faith conferred

or attempted to confer with Defendants 6

6 Motions related to discovery pursuant to Rules 26 through 37 ot the Virgin Islands Rules of Civil Procedure are
governed by Rules 37 and 37 l of the Virgin Islands Rules of Civil Procedure (hereinafter Rule .37 and Rule 37 1
respectively) Rule 37 and Rule 37 I mandates that the moving party submit a certification with its motion certifying
that both parties engaged in substantive good faith negotiations before filing a discovery motion V l R CW P 37(3)
and .37 Ha) Sec V I R CIV P 37(a) (“0n notice to other parties and all affected persons a party may move for an
order compelling disclosure or discovery The motion must include a certification that the movant has in good faith
conferred or attempted to con fer with the person or party failing to make disclosure or discovery in an effort to obtain
it without court action ) VI R Ctv P 37 l(a)( Prior to filing any motion relating to discovery pursuant to Rules
26 through 37, other than a motion relating to depositions under Rule 30 counsel for the parties and any self
Sr Crow Futanczal Center Inc v Jackstar Inc et a1

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‘II 20    Based on the record in this matter, it is undisputed that Defendants were served with

Plaintiffs first set of interrogatories and first set of requests for production of documents

Defendants violated Rule 33 and Rule 34 when they failed to timely respond to Plaintiffs first set

of interrogatories and first set of requests for production of documents There is no pending motion

for a protective order under Rule 26(0) so Defendants failure is not excused Thus, at this juncture

the Court will grant Plaintiffs September 13 2019 motion to compel and order Defendants to

serve their responses without objections to Plaintiffs first set of interrogatories without objections’

and first set of requests for production of documents Furthermore the Court will schedule a

hearing as required under Rule 37 on the issue of awarding Plaintiff reasonable expenses incurred

in making the motion, including attorney 5 fees See V I R CIV P 37(a)(5)(A) ( If the motion is

granted        the court must after giving an opportunity to be heard, require the party or deponent

whose conduct necessitated the motion the party or attorney advising that conduct or both to pay

the movant 5 reasonable expenses incurred in making the motion including attorney 5 fees )

‘][ 21    The Court is cognizant that sanctions may be available for such Rule 33 and Rule 34

violations      to wit Rule 37(d)( l )(A)(ii) provides that [t]he court may on motion, order sanctions

for such Rule 33 and Rule 34 violations             The canons of construction in statutory interpretation

apply equally to the interpretation of court procedural rules              Whyte v Bockmo 69 V I 749 754

55 (V I 2018) and           [t]he first step when interpreting a statute is to determine whether the

language at issue has a plain and unambiguous meaning                 Milieu People of the VI 67 V I 827

844 (V I 2017) It is well settled that when the language of a statute is plain and unambiguous, no

represented parties shall confer in a good faith effort to eliminate the necessity for the motion   or to eliminate as
many ot the disputes as possible )
’ Based on the record in this matter the Court does not find good cause to excuse Defendants failure to timely object
to Plaintift s first set of interrogatories
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further interpretation is required See Thomas v People of the VI 69 V I 913 925 (VI 2018)

(noting that because the statutory language [of 14 V l C § 2101(a)] is plain and unambiguous

no further interpretation is required ) see also Codrmgton v People of the V I 57 V I 176, 185

(2012) (‘ Accordingly when the language of a statute is plain and unambiguous a court does not

look beyond the language of the statute in interpreting the statute 5 meaning ) Consequently the

plain and unambiguous language of Rule 37(d)(l)(A)(ii) controls and the Court may on motion

order sanctions Here Plaintiff did not file a motion for sanctions As such the Court will not order

any sanctions at this time

111      Plaintiff’s November 15, 2019 Motion for Summary Judgment and Plaintiff’s
         February 4, 2020 Motion for Ruling on its Outstanding Motions

‘|[ 22   The Court finds that Plaintiff implicitly withdrew its prior November 15 2019 motion for

summary judgment and February 4 2020 motion for ruling on its outstanding motions when it

filed the July 9 2021 renewed motion for summary judgment and September 21 2020 motion for

ruling on its outstanding motions See Magras v Nanonal lndusmal Servzces et a1 , 2021 V U

Super 50U ‘|[ 8 see also In re Refinery Dust Claims 
72 VI 256
 290 (Super Ct Dec 13 2019)

(citing Mitchell v Gen Engg Corp 67 VI 27l 278 (Super Ct Feb 23 2017)( a motion can

also be deemed withdrawn based on certain actions or inactions of the party who filed the motion )

As such Plaintiff’s November 15 2019 motion for summary judgment and February 4 2020

motion for ruling on its outstanding motions will be deemed withdrawn

IV       Dwayne Henry, Esq ’5 March 4, 2020 Motion to be Relieved as Counsel

‘ll 23   The record does not reflect that the proofs of service for Defendants were ever filed by

Dwayne Henry Esq as ordered by the July 6 2020 order Thus Dwayne Henry Esq 5 March 4

2020 motion to be relieved as counsel was never granted See July 6 2020 order( Dwayne Henry
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Esq s motion to be relieved as counsel for defendants is GRANTED upon filing proof of

service’ ) As such as of the date of this Order, Dwayne Henry, Esq is still the counsel of record

for Defendants

V        Plaintiff’s September 21, 2020 Motion for Ruling on its Outstanding Motions

‘II 24   The Court will grant Plaintiff‘s September 21 2020 motion for ruling on its outstanding

motions and address the outstanding motions in this Memorandum Opinion and Order

VI       Plaintiff’s July 9, 2021 Renewed Motion for Summary Judgment

(ll 25   The certificate of service attached to Plaintiff’s July 9 2021 renewed motion for summary

judgment indicated that on this 8‘" day of July 2021 a true and correct copy of ST CROIX

FINANCIAL CENTER INC S RENEWED MOTION FOR SUMMARY JUDGMENT which

does not exceed the page or word limitations in Rule 6(e) was sent via electronic mail to Jeff

LaCroix jeff lacroix@aim com       (July 9 2021 Motion ) The Court has several concerns regarding

the service of Plaintiff’s July 9 2021 renewed motion for summary judgment

9| 26    First, the certificate of service did not include Defendant Jackstar and thus, Defendant

Jackstar was not served with a copy According to the proof of service for the summons and

complaint for Defendant Jackstar, Defendant Jackstar was served in this matter via its registered

agent Bernard C Pattie Thus it is unclear whether Defendant Jackstar was ever served with a

copy of Plaintiff’s July 9 2021 renewed motion for summary judgment

(ll 27   Second there is nothing in the record that indicates that Defendant LaCroix consented in

writing to service via electronic means Rule 5(b) of the Virgin Islands Rules of Civil Procedure

(hereinafter ‘ Rule 5(b) ) provides a list of acceptable methods of service for papers other than the
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complaint and summons 3 Under Rule 5(b)(2)(E),                      [a] paper is served under this rule by             (e)

sending it by electronic means if the person has consented in writing                      in which event service is

complete upon transmission but is not effective if the serving party learns that it did not reach the

person to be served              V I R Civ P 5(b)(3)(E) Thus without Defendant LaCroix s consent to

receive service by electronic means Defendant LaCroix was not properly served with a copy of

Plaintiff’s July 9 2021 renewed motion for summary judgment 9

‘]l 28   Finally Plaintiff’s July 9 2021 renewed motion for summary judgment was filed after the

Couit entered the July 6 2020 order However as noted above the record does not reflect that the

proofs of service for Defendants were ever filed by Dwayne Henry Esq as ordered by the July 6,

2020 order Thus it is unclear whether Defendants were aware of the Court 5 July 6 2020 order

3 Rule S(b) oi the Virgin Islands Rules of Civil Procedure provides
         (b) Service How Made
            (1) Serving an Attorney It a party is represented by an attorney service under this rule must be made on
         the attorney unless the court orders service on the party
            (2) Serwce in General It service by filing and transmission of notice under the Virgin Islands Electronic
         Filing Rules is not applicable 21 paper is served under this rule by
                (A) handing it to the person
                (B) leaving it
                    (i) at the persons office with a clerk or other person in charge or if no one is in charge in a
                    conspicuous place in the office or
                    (ii) if the person has no office or the office is closed at the person's dwelling or usual place of abode
                    with someone of suitable age and discretion who resides there
                (C) mailing it to the person‘s last known address    in which event service is complete upon mailing
              (D) leaving it with the Virgin Islands Marshal for service if possible, it the person has no known
         address
             (E) sending it by electronic means it the person has consented in writing in which event service is
         complete upon transmission but is not effective it the serving party learns that it did not reach the person to
         be served or
              (F) delivering it by any other means that the person has consented to in writing in which event service
         is complete when the person making service delivers it to the agency designated to make delivery
         VI R Civ P 5(b)(2)
° Given that Defendant LaCroix did not consent to receive service by electronic means it is entirely teasible that
Defendant LaCroix does not check his jeff lacroix@aim com” email account and thus never received a copy of
Plaintiff 5 July 9 2021 renewed motion for summary judgment
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granting Dwayne Henry Esq 5 March 4 2020 motion to be relieved as counsel upon filing proof

of service of the July 6 2020 order on Defendants '0 As such even assuming that Defendants were

properly served with a copy of Plaintiff’s July 9 2021 renewed motion for summary judgment

they may have been under the impression that their counsel Dwayne Henry Esq would respond

thereto and thus they did not respond or retain new counsel to respond on their behalf

Nevertheless, as also noted above Dwayne Henry Esq is still the counsel of record for Defendants

as of the date of this Order and thereby Dwayne Henry, Esq was the counsel of record when

Plaintiff filed its July 9 2021 renewed motion for summary judgment However, Dwayne Henry

Esq may have been under the impression that he has been relieved as counsel for Defendants and

thus he did not file a response on their behalf

‘ll 29   At thisjuncture, out of abundance of caution to ensure that Defendants are properly served

with Plaintiff’s July 9 2021 renewed motion for summary judgment and that Defendants are

properly apprised of what has happened in this matter (e g Dwayne Henry Esq filed a motion to

be relieved as their counsel and that the Court entered the July 6, 2020 order in response thereto)

and given the opportunity to file a response or retain new counsel to file a response on their behalf

to Plaintiff 5 July 9 2021 renewed motion for summary judgment the Court will order (i) Dwayne

Henry, Esq to serve a copy of the July 6 2020 order and a copy of this Memorandum Opinion

and Order on Defendants with the method of service in compliance with the Virgin Islands Rules

of Civil Procedure and file the proofs of service thereto Dwayne Henry Esq 5 March 4 2020

motion to be relieved as counsel for defendants, will be granted upon filing proof of service of the

‘“ In tact it is unclear whether Defendants were even aware 0t Dwayne Henry Esq 5 March 4, 2020 motion to be
relieved as counsel since the certificate of service attached thereto did not indicate that a copy of said motion was
served and did not include Defendant Jackstar to wit the certificate of service attached to Dwayne Henry Esq 5
March 4 2020 motion to be relieved as counsel indicated that on the 26th day of February 2020 I caused a true and
exact copy of my Answer to be served on to be served on the following person Jeffrey LaCroix, via certified mail
St Grout Finanaal Center Inc \ Jackstar Inc era!

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aforementioned documents, (ii) Plaintiff to serve a copy of its July 9 2021 renewed motion for

summary judgment on Defendants with the method of service in compliance with the Virgin

Islands Rules of Civil Procedure and file the proofs of service thereto and (iii) Defendants to file

a response or retain new counsel to file a response on their behalf to Plaintiff’s July 9 2021

renewed motion for summary judgment within forty five days if they choose to do so After the

forty five day period has passed the Court will rule on Plaintiff’s July 9 2021 renewed motion

for summary judgment with or without a response from Defendants unless the circumstances then

require otherwise

                                                 CONCLUSION

          Based on the foregoing it is hereby

          ORDERED that the default entered against Defendant LaCroix on December 27 2018

shall be and is hereby VACATED It is further

          ORDERED that Plaintiffs September 13 2019 motion to compel Defendants to respond

to Plaintiffs first set of interrogatories and first set of requests for production of documents is

GRANTED It is further

          ORDERED that within twenty (20) days from the date of entry of this Memorandum

Opinion and Order, Defendants shall serve their responses without objections to Plaintiffs first

set of interrogatories without objections and first set of requests for production of documents It is

further

          ORDERED that on %Q% 9?                                       2022 at         cf 6%            am/p In via

zoom Defendants and Dwayne Henry, Esq ' shall appear for a hearing on the issue of awarding

" Dwayne Henry, Esq was the counsel of record for Defendants when Defendants were served with Plaintiffs first
set of interrogatories without objections and first set of requests for production of documents, and he met and conferred
with Plaintiff regarding said discovery Thus even if Dwayne Henry Esq 5 March 4, 2020 motion to be relieved as
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