IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX



MIREYA ROBLES,



PLAINTIFF, SX-15-CV-348



Vv. ACTION FOR DAMAGES



OLIVIA JOSEPH; JOHN’S BAR AND

RESTAURANT; JOHN FREDERICK JURY TRIAL DEMANDED

INDIVIDUALLY AND OWNER OF JOHN’S BAR

AND RESTAURANT,



DEFENDANTS.



MEMORANDUM OPINION AND ORDER



THIS MATTER came before the Court on Plaintiff Mireya Robles’ (hereinafter “Plaintiff’)

motion for reconsideration of order dismissing complaint, filed on August 29, 2017.



On August 24, 2017, the Court entered a memorandum opinion and order dismissing this

matter without prejudice for failure to prosecute. This is a final order because it terminated the

litigation. As such, Plaintiff should have moved for relief from a final order rather than for

reconsideration.! See V.I. R. Civ. P. 6-4(a) (“Except as provided in Rules 59 and 60 relating to final

orders or judgments, 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.”) Accordingly,

the Court will treat this instant motion for reconsideration as a motion for relief from a final order.



In her motion, Plaintiff indicated that she moved for reconsideration based on the need to

correct clear error. (Motion, p. 1) Plaintiff argued that “[r]ather than dismissing the matter, the

Court should have entered default against the defendants because defendants were properly served



and have never answered or defended this matter.” (Id.) Plaintiff further argued that she filed a



' Plaintiff filed this instant motion within five days from the date of entry of the final order. Thus, the motion is timely

whether it is treated as a motion for relief from a final order or a motion for reconsideration.

Mireya Robles v. Olivia Joseph, et al.

SX-2015-CV-348

MEMORANDUM OPINION AND ORDER



Page 2 of 5

request for entry of default on March 22, 2017, and under Superior Court Rule 47 “[w]hen defendant

did not respond to the Complaint when the request for entry of default [sic], the Court was required

to enter a judgment of default.” (Id., at p. 2) Furthermore, Plaintiff asserted that “[t]he Court’s

reliance on the case of Halliday v. Footlocker, 53 V.1. 505 (V.I. 2010), is misplaced” because unlike

the defendants in Halliday, the defendants never answered the complaint in this matter. (Id.)

1. Motion for Relief from a Final Judgment

Virgin Islands Rule of Civil Procedure 60(b) governs relief from a final judgment, order, or

proceeding, which provides that:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just

terms, the court may relieve a party or its legal representative from a final judgment, order, or

proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that could not, with reasonable diligence, have been

discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether in a form previously called intrinsic or extrinsic),

misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier

judgment that has been reversed or vacated; or applying it prospectively is no longer

equitable; or

(6) any other reason that justifies relief.

While “the need to correct clear error” is not one of the grounds specifically listed above, the Court

will construe this instant motion as Plaintiff moving for relief from a final order on the ground of

mistake under Virgin Islands Rule of Civil Procedure 60(b)(1).

A. Superior Court Rule 47 versus Virgin Islands Rule of Civil Procedure 55

When Plaintiff filed her request for entry of default on March 22, 2017, Superior Court Rule

47 was in effect and governed request for entry of default. However, Virgin Islands Rules of Civil

Procedure went into effect shortly after on March 31, 2017. Virgin Islands Rule of Civil Procedure



1-1 provides that “[t]hese rules, and subsequent amendments, govern:...(2) proceedings in any action



pending on the effective date of the rules or amendments, unless: (A) the Supreme Court of the

Mireya Robles v. Olivia Joseph, et al.

SX-2015-CV-348



MEMORANDUM OPINION AND ORDER

Page 3 of 5



Virgin Islands specifies otherwise by order; or (B) the Superior Court makes an express finding that

applying them in a particular previously-pending action would be infeasible or would work an

injustice.” V.I. R. Civ. P. 1-1(c)(2). Thus, when the Court reviewed Plaintiff's request for entry of

default on May 23, 2017, Virgin Islands Rule of Civil Procedure 55 governed unless the Supreme

Court of the Virgin Islands specified otherwise by order, or unless the Court found the application of

Virgin Islands Rule of Civil Procedure in this matter to be infeasible or would work an injustice.

Here, given that he Supreme Court of the Virgin Islands did not specify otherwise by order

and the Court did not find the application of Virgin Islands Rule of Civil Procedure in this matter to

be infeasible or would work an injustice, Virgin Islands Rule of Civil Procedure 55,” instead of

Superior Court Rule 47,> was applicable. Plaintiff argued that the Court was required to enter a

default against the defendants under Superior Court Rule 47 when she filed the request for entry of

default. However, Plaintiff failed to acknowledge that she never submitted an affidavit stating that

neither Defendant Olivia Joseph nor Defendant John Frederick was a minor, an incompetent person,

nor a person subject to the provisions of the Servicemember’s Civil Relief Act of 2003, and thus, the

Court could not ascertain whether service was perfected.* There are additional rules to serving a



minor or an incompetent person,> and a person subject to the Servicemember's Civil Relief Act of



? Virgin Islands Rule of Civil Procedure 55 provides that “[w]hen a party against whom a judgment for affirmative relief

is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the court or the clerk

must enter the party’s default.”

? Superior Court Rule 47 provides that “[w]hen a party against whom affirmative relief is sought has failed to appear,

plead or otherwise defend as provided by law or these rules, or has failed to appear at the time fixed for trial, the clerk

shall enter his default.”

‘ Supra nn 2-3. While the language used in Superior Court Rule 47 differs from the language used in Virgin Islands Rule

of Civil Procedure 55—-to wit, Superior Court Rule 47 does not explicitly require an affidavit—both rules require service

to be perfected upon the party whom the plaintiff is seeking for an entry of default before the court or the clerk can enter

the party’s default.

5 Title 5 V.LC. § 111 provides:

§ 111. SERVICE ON INFANT OR INCOMPETENT PERSON. In the cases referred to in Rule 4(d)(2) of the

Federal Rules of Civil Procedure, service shall be made as follows:

(1) Upon an infant, by delivering a copy of the summons and of the complaint to the infant personally, and also to

his father, mother, or guardian, or if there is none within the Virgin Islands then to any person having the care or

control of such infant, or with whom he resides, or in whose service he is employed.

Mireya Robles v. Olivia Joseph, et al.

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MEMORANDUM OPINION AND ORDER

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2003 is protected from being sued while in active military service.6 Although the Court gave

Plaintiff an opportunity to remedy the deficiency by ordering Plaintiff to file an affidavit to

supplement her request for entry of default within four weeks, Plaintiff never complied. A few more

months passed thereafter without Plaintiff taking any action to move this case forward. As such, on

August 24, 2017, the Court entered a memorandum opinion and order dismissing this matter for

failure to prosecute.

B. Failure to Prosecute



Here, the Court’s reliance on Halliday v. Footlocker Specialty, Inc., 53 V.1. 505 (V.I. 2010),

is not misplaced, as argued by Plaintiff in her motion. In Halliday, the Supreme Court of the Virgin

Islands instructed that, in determining whether to dismiss an action for failure to prosecute, the

Superior Court must examine the following six Poulis factors.” 53 V.I. at 511; see also, Molloy v.

Independence Blue Cross, 56 V.I. 155, *184-85 (V.I. 2012). In its August 24, 2017 memorandum

opinion, the Court examined the six Poulis factors and concluded that four factors weighed in favor

of dismissal (with two factors—the prejudice to the adversary and a history of dilatoriness—

weighing strongly in favor of dismissal) and the remaining two factors weighed against dismissal.

“[A] trial court is not required to find that all the factors weigh in favor of dismissal to warrant



dismissal of the claim.” Molly, 56 V.I. at *186. As such, the Court found the Poulis factors



(2) Upon a person judicially declared to be of unsound mind or incapable of conducting his own affairs for whom a

guardian has been appointed, by delivering a copy of the summons and of the complaint to the defendant personally

and also to such guardian.

5 The Servicemember's Civil Relief Act of 2003, formerly known as the Soldiers' and Sailors' Civil Relief Act of 1940, is

a federal law that gives all military members some important rights as they enter active duty, including but not limited to

protection from being sued while in active military service of their country.



7 The six Poulis factors include:

(1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary cause by the failure to

meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the

party or the attorney was willful or in bad faith; (5) the meritoriousness of the claim or defense; and (6) the

effectiveness of sanctions that serve as an alternative to dismissing the case. Molloy, 56 V.I. at *184-85 (citing

Poulis, 747 F.2d at 868).

Mireya Robles vy. Olivia Joseph, et al.



SX-2015-CV-348



MEMORANDUM OPINION AND ORDER



Page 5 of 5



warranted the extreme sanction of dismissal and thus, ordered the dismissal of this matter for failure



to prosecute.



Based on the foregoing, the Court will deny Plaintiffs motion for relief from a final order



pursuant to Virgin Islands Rule of Civil Procedure 60(b)(1). Accordingly, it is hereby:



ORDERED that Plaintiff's motion for relief from a final order dismissing complaint, filed on



August 29, 2017, is DENIED.



DONE and so ORDERED this



day of December, 2017.



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