IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
                           DIVISION OF ST THOMAS AND ST JOHN

AMJAD MUHYEDDIN                                               )        Case No ST 2018 CV 00751
                                                              )
                                   Plaintiff                  )
                 vs                                           )
                                                              )        ACTION FOR BREACH OF
JARRAH ELGADI and                                             )        PARTNERSHIP ACCOUNTING
ELGADI ENTERPRISE LLC                                         )        DECLARATORY RELIEF
                                                              )        ACTION FOR PRELIMINARY
                                                              )        AND PERMANENT INJUNCITON
                                   Defendants                 )
                                                              )

                                         Cite as 
2022 VI Super 96U

                                       MEMORANDUM OPINION

111     THIS MATTER is before the Court on a Motion to Dismiss for Failure to Cooperate in

Discovery filed by Defendants Janah Elgadi ( Elgadi ) and Elgadi Enterprises LLC (together

 Defendants ) on July 30 2021 H                For the reasons herein the Court will deny Defendants

motion, but will award attomey’s fees to Defendants for filing the instant motion and order Plaintiff

' Defendant: attached ten (10) Exhibiis lo Iheir mulion, as follows    Exhibii A, email exchange between parties
counsel in November 2019 and January 2020 regarding Rule 26 Disclosures; Exhibit B, Defendams notice memes
of Rule 26 Disclosures dated November 22 2019 Exhibit C Plaintiff’s Voluntary Disclosures dated December 4
2019 and the three atlachments thereto (warranty deed affidavit of Hassan Rahman and affidavit of Muatem
Muslafa) Exhibit D Defendants request for produclion dated May 4 2021 Exhibit E Defendants first set Of
interrogatories dated May4 2021 Exhibit F later from Defendants counsel to Plaintiffs counsel titled Notice of
Failure (0 Respond 10 whiten Diacovery and Demand in Meet and Confer Pursuant to V I R Civ P 37 and 37 1
dated June 30 2021 Exhibit G email dated July 7 2021 from Defendants counsel lo Plaintiff‘s counsel notifying
Plaintiff‘s e0un<el oflhe overdue discoVery mpunses and requesting explanation for their delay a: well as indicating
a desire to schedule a depofimon; Exhibit 1-1, Email exchange dated July 8, 2021 between pames’ counsel, in which
Plaintiffs counsel requefls Defendams counsel provide the request for production and imerrogatcries again Exhibit
I, emaiI exchange between panies counsel dated July 25, stating Plaimift‘s intention to gel the discovery responses
to Defendams Counsel and allempllng [a plan a deposiiion chuhyeddin Exhibit .1 email from Defendants counsel
on July 28 2021 outlining the timeline of events and reiterating the overdue nature of the discovery responses and
stating counsel would file a monon to compel the £0110“ mg day ifshe had no: received the responses
2 Plaintiff filed his untimely Opposlllon 0n Auguu 31 2021 and atmched Ihereto was one exhibit After 1he ccun
accepted that late filing Defendants filed me” reply on March 3 2022
AmjadMuhyeddm \ Jmmh Elgmu am] 51ng Enterprise LLC
Case No ST 2018 CV 00751                                                   Cite as 
2022 VI Super 96U

Memorandum Opinion
Page 2 of 18

to respond to the outstanding discovery requests within fifteen (15) days, failing which the Court

will bar introduction of such evidence at trial

                         FACTUAL AND PROCEDURAL BACKGROUND

112      In 2018 Plaintiff Amjad Muhyeddin ( Muhyeddin or Plaintiff) filed his complaint

against Defendants alleging that on or about August 2, 2008 Muhyeddin and Elgadi orally agreed

to enter into a partnership for profit and agreed to Jointly purchase real property known as N0 463

& 46Bd Estate Thomas N0 6A New Quarter St Thomas Virgin Islands ( the Property ) from

Muhyeddin s brother Majdi Muhyeddin ( Majdi ) and his corporation, Dehwani Inc At that

time a gas station, convenience store, and commercial rental units were located on the Property

Plaintiff further alleges that Plaintiff and Detendant Elgadi each contributed three hundred fifty

thousand dollars ($350 000 00) to purchase the Property and they agreed that Elgadi would

operate the gas station and convenience store as a partnership asset for five (5) years and Elgadi

would pay Muhyeddin a monthly sum of $23 000 as Muhyeddin 3 initial investment and a portion

of the net profits and then Muhyeddin would take over operations 3 The basis of Plaintiff‘s

complaint is that since 2010, Elgadi has operated the gas station and convenience store but has

refused to pay Muhyeddin the agreed amount for his investment nor provide any accounting of

the finances of the partnership that Elgadi has refused to allow Muhyeddin to have equal

participation in the business and Elgadi even forced Muhyeddin out of the store when he Visited

in the store in 2017 Muhyeddin also claims Elgadi is living in and using one ofthe rental units on

the Property as his personal residence without Muhyeddin s consent Muhyeddin claims he has

3 The payment terms described in the Complaint are not precise
AmjadMuhyezldm 1 Jarrah EIgadl and EIglzdl Enmypuse LLC
Case No ST 2018 CV 00751                                                       Cite as 
2022 VI Super 9611

Memorandum Opinion
Pa e 3 of18

made numerous demands for an accounting and for his share of net profits but Eigadi has not

complied with the 2008 agreement

113       Plaintiff‘s complaint includes a demand for an accounting a demand for profits and return

of investment, demand for participation, misuse of pannership property, and injunctive relief In

their answer and counterclaims, Defendants deny the existence of a pannership deny that

MUhyeddin is entitled to any profits from the businesses at the Property and assert there is no

privity between the parties Elgadi’s counterclaim alleges he was a (:0 owner ofthe Property, that

in 2001 his brother Majdi separated the Property and operated the gas station and convenience

store and commercial building in partnership with Elgadi but the parties later changed their

agreement and Elgadi became the sole owner of the Property and Elgadi saved the Property from

foreclosure without any contribution from Muhyeddin Elgadi's counterelaims include four

Counts partition quiet title contribution and declaratory relief

114       Since the onset of this litigation, very little progress has been made The parties have both

served their Rule 26 initial disclosures but every other attempt to move the case forward has failed

The Defendants instant motion claims Plaintiff has failed to prosecute and such failure warrants

dismissal of Plaintiff‘s complaint and entry ofjudgment on two of Defendants counterclaims

{[5       The relevant timeline of events related to the instant mation is as follows

      1   On November 15 2018, PIaintiff filed a five count complaint, alleging he and Elgadi are
          business partners and joint owners of the Property, on which Elgadi continues to operate a
          gas station and convenience store

      2   On January 14, 2019, Defendants filed an answer and counterclaims tor partition, quiet
          title, contribution, and declaratory relief

      3   On February 1 2019 Plaintiff filed an answer to Defendants’ counterclaims

      4   On August 22 2019 this Court ordered the panies to conduct a scheduling conference by
          September 3 2019 and submit a discovery plan to the Court by September 17 2019
Am/(zd Muhyuldm L Jarmh Elgadz and Elgadt Enterprlae LLC
Case No ST 2018 CV 00751                                                    Cite as 2022 V1 Super 96U
Memorandum Oplmon
Page 4 of 18

    5   On September 17 2019 the parties filed a proposed scheduling plan and the Court
        approved it the next day

    6   On November 22 2019 Defendants served initial disclosures

    7   On December 6 2019, Plaintiff served initial disclosures

    8   On January 16 2020 the parties filed a Joint motion to amend the discovery plan The
        Court approved the plan on January 22 2020 1n peninent part the plan ordered that fact
        discovery be completed by May 30 2020 written discovery be completed by March 31
        2020 fact depositions be completed by May 1 2020 and mediation commence no later
        than May 15 2020

    9   On September 16 2020 the Court directed the parties to provide the status of the case and
        whether the matter had been mediated Plaintiff responded on October 27 2020, stating
        that due to the Covid 19 pandemic and an injury to Plaintiffs counsel that required surgery
        and rehabilitation the mediation had not yet occurred

    10 On November 23 2020 the Court extended the mediation deadline to December 31 2020
       and further ordered that the parties file an amended scheduling plan if the matter was not
       resolved by January 15 2021

    1 1 On December 28 2020 the parties met to mediate the matter but after the initial
        conference they recessed for further discussions The mediation report states the mediator
        would file his final report by January 31 2021

    12 On Febmary 26 2021 the mediator filed his report stating the parties were at total impasse
       and require Court action

    13 On May 4, 2021, the Court held a status conference The parties disagreed whether more
       mediation and more discovery were necessary But the Court ordered the parties to meet
       and confer to develop a new scheduling plan

    14 Also on May 4 2021, Defendants served their first set of intenogatories and request for
        praduction of documents on Plaintiff               ‘

    15 On May 12 2021 the parties filed a new stipulated scheduling plan with the Cuurt The
        Court approved it on May 17 2021 In pertinent part the plan stated fact discovery shall
        be completed by July 30 2021 written discovery served by May 20 2021 and fact
        depositions completed by July 30 2021 The Court also scheduled a status conference for
        February 22 2022
Am/ad Muhyeddm v Jarruh EIgadl and Elgar]; Enterprzse LLC
Case No ST 2018 CV 00751                                                                  Cite as 
2022 VI Super 9611

Memorandum Opinion
Page 5 of 18

      16 On July 30, 2021, Defendants filed the instant motion to dismiss, claiming Plaintifffailed
         to cooperate in discovery

116      This chronology shows that Defendants propounded the interrogatories and request for

production of documents to Plaintiff on May 4, 2021 As 0fthe date Defendants filed the instant

motion to dismiss Plaintiff had not filed responses to the discovery requests Defendants argue

Plaintiff has allowed this case to languish for years with no explanation for the failure to cooperate

in discovery and Plaintiff’s “complete and inexcusable failure ’ to cooperate in discovery 01' to take

any steps to prosecute the matter should result in dismissal of plaintiff‘s complaint and entry of

judgment on Defendants counterclaims Defendants argue they were the only ones endeavoring

to push the case forward, and, despite such etforts, Plaintiff has failed to adhere to three (3)

scheduling orders, and each time Defendants took the lead in revising the scheduling plans

Defendants urge that dismissal of plaintiff‘s complaint is the only appropn'ate remedy Defendants

also ask for judgment on two of their counterclaims A

117      In response Plaintiff acknowledges his responses to Defendants interrogatories and

request for production are late but notes Plaintiff‘s counsel has been in contact with his client

Muhyeddm, to obtain responses and return them to Defendants That response was filed on August

31 2021 Plaintiff states he could not provide a date certain for completion of the interrogatories

since counsel was relying upon Muhyeddin to complete them and it was made more difficult by

Muhyeddin 3 current residence being in North Carolina 5

4 Because Defendants provide “a argument or reasoning to support their request for defaultjudgment 0n Counts Two
and Four of their counterclaim the Court will not address that request and will deny that portion of Defendants
motion
5 In addition Plaintiff argues that Defendants had two changes in counsel and did not settle on current counsel until
November 7 2019 However the change in defense counsel does not Justify any delay on the part of Plamlz/fsmee
he had not yel even filed his Rule 26 initial disclosures
Am/ad Muhyeddm I Jarmh Eighth (Ind Elgadz Enterprzse LLC
Case No ST 2018 CV 00751                                                     Cite as 2022 VI Super96U
Memorandum Opinion
Page 6 of 18

118    The Court notes that in the period of more than a year since Plaintiff filed his opposition to

the motion to dismiss, Plaintiff still has not filed responses to Defendants’ discovery requests

                                      LEGAL STANDARD

19     Discovery issues such as failure to attend one s own deposition serve answers to

interrogatories, or respond to a request for inspection, are addressed in V I R Civ P 37(d) The

Court may order sanctions if a party after being properly served with interrogatories fails to serve

its answers objections 0r mitten response V I R Civ P 37(d)(1)(A)(ii) That rule refers to V I

R Civ P 37(b)(2)(A)(i) (Vi), which details the sanctions available for such proceduraI failures

V I R Civ P 37(d)(3) Such sanctions include

       (i)     directing that the matters embraced in the order or other designated facts be taken
               as established for purposes of the action as the prevailing party claims
       (ii)    prohibiting the disobedient party from supporting or opposing designated claims or
               defenses, or from introducing designated matters in evidence;
       (iii)   stnking pleadings in whole or in pan?
       (iv)    staying further proceedings until the order is obeyed
       (v)     dismissing the action or proceeding in whole or in part
       (vi)    rendering a default judgment against the disobedient patty

V I R Civ P 37(b)(2)(A)(i) (vi)

1110   Involuntary dismissal described in V I R Civ P 41(b) provides that if the pIaintifffails

to prosecute or to comply with these rules or a court order a defendant may move to dismiss the

action or any claim against it ’ The Virgin Islands Supreme Court adopted a set of six factors,

which the Court must balance to determine whether dismissal is appropriate Halltday v

Footlocker Specialty Inc 53 V I 505 (V I 2010) (adopting the standard established by the Third

Circuit in Faults v State Farm Fire and Cas Co 
747 F 2d 863
 (3d Cir 1984)) The factors to be

balanced are

       (1) the extent of the party 5 personal responsibility (2) the prejudice to the adversary
       caused by the failure to meet scheduling orders and respond to discovery (3) a history of
Amjad Muhted‘lm I Jarrah Elgndt 11ml Elma Enmpme LLC
Case No ST 2018 CV 00751                                                         Cue as 2022 VI Super96U
Memorandum Opinion
Page 7 of18

           dilatoriness; (4) whether the conduct of the patty or the attomey was willful or in bad faith;
           (5) the effectiveness of sanctions other than dismissal which entaiIs analysis of alternative
           sanctions; and (6) the meritoriousness of the claim or defense

1d at 510 (citing Pauli: 
747 F 2d at 868
) The Virgin Islands Supreme Court has instmcted that

  [a]1though a trial court is not required to find that all the factors weigh in favor of dismissal to

warrant dismissal of the claim, the court must explicitly consider all six factors, balance them, and

make express findings         Battzste v Auction com 2022 V1 SUPER 65 1] 16 (quoting Malloy 1

Independent Blue Cross 56 V I 155 186 (V I 2012)) In other words                the extreme sanction of

dismissal is reserved for instances in which a trial court makes appropriate findings to all six factors

and without them the drastic sanction of dismissal cannot be warranted           Id (citing Malloy, 56

V1 at 186) (internal quotations omitted)

                                               ANALYSIS

Though some of the Hallzday factors weigh in favor of dismissal, Defendants’ motion to
dismiss will be denied because less extreme sanctions are available

       1   Extent of PlaintifPs personal responsibility for the delay

1111       The first Halltday factor focuses on the party's conduct [and examines] whether the party

was responsible for the actions or inactions that led to dismissal of the case " VI Tax: Assoc \

V.[ Port Auth      
67 VI 643
 693 694 (V1 2017) (quoting Watts v Two Plus Two Inc 54 V1

286 300 (V I 2010)) This inquiry differentiates the acts ofa party from the acts 0ftheir counsel

101 (citing Molloy L Independence Blue Cross 56 V1 155 190 (V I 2012) Poulxs 
747 F 2d at

868
)

1112       Plaintiff argues Defendants have made no showing that Muhyeddin himself is at fault for

the delay rather than Plaintiff‘s counsel In their reply Defendants note Plaintiff‘s opposition

contains some inconsistencies Plaintiffs explanation of the delays being due to the logistical
 Am/ad Muhtcddm v Jarret}: EIgazII and Elgadi Enterprise LLC
 Case No ST 2018 CV 00751                                                                    Cite as 2022 V1 Super 96U
 Memorandum Opinion
 Page 8 of 18

 difficulties ofMuhyeddin living in North Carolina does not align with Plaintiff‘s statement that he

 has very few or no supporting documents to provide 6 Accordingly Defendants state regardless

 of Muhyeddin 5 location, there was no explanation for the lengthy delay particularly if there is

 nothing of substance for Muhyeddin to collect and provide to Defendants

1113      In this matter, there is no demonstrated indication whether it is Muhyeddin or his counsel

who is responsible far the subject delay although counsel stated                     months ago        he is awaiting

responses from Muhyeddin Plaintiff‘s counsel notes he experienced a significant injury during the

summer of 2020, for which he required surgery and rehabilitation, which contributed to the delay

However, Defendants did not send their interrogatories and requests for production of documents

until May 4 2021 Thus Plaintiff‘s counsel’s injury in 2020 may have contributed to not moving

the matter forward but it had no impact on the delay in responding to discovery requests

propounded in May 2021 Both parties provided the Court with a copy of Plaintiff‘s email to

Defendants dated July 8 2021 asking for a duplicate copy of the discovery requests stating

counsel had ‘misplaced the documents 7 By the time the Plaintiff requested a duplicate set of

documents his responses were already late Losing the documents indicates lack of attention to

this matter by Plaintiff‘s counsel Further in his opposition Plaintiff seems to allude that

Muhyeddin himself was delinquent in responding to the interrogatories and further blames the

delay on the distance between counsel and his client However with the development of

technology the frequent use of e mail Zoom free long distance Calling and other technologies

the Court does not find the distance to be a valid reason for delay 3 Even if the distance between

‘5 It is plauslble that Plaintiff‘s Counsel is aware his client has few documents to support hIs Claim but that Muhyeddm
himseIfmust draft responses to the intermgatones for counsel 5 review
7 Defendant tendered a duplicate copy om“: discovery requests within minutes of Plaintiff‘s request
x On July 26 2021 Plaintiff told Defendants by email we are working diligently to get you the responses by
Tuesday See Exhibits H and I attached to Defendants motion
Amladi’l/Iuhyeddm v Jurmh Elgadt (Md Elgadi Enigma: LLC
Case No ST 2018 CV 00751                                                      Cite as 2022 V1 Super 96U
Memorandum Oplnion
Page 9 of 18

counsel and plaintiffdid contribute to a short delay it certainly cannut account for a delay of more

than one year Therefore, this factor weighs in favor of dismissal

       2   Prejudice to the opposing party

$114       Prejudice t0 the opposing party involves either increased expense to the opposing party

arising from the extra costs associated with filings responding to dilatory behavior or increased

difficulty in the opposing parties ability to present or defend their c1aim(s) due to the improper

behavior       Molloy » Independence Blue Crass 
56 VI 155 189
 (V1 2012) (citing Faults 
747

F 2d at 868
 Remy I Fwd Motor Ca 
41 VI 141
 152 53 (VI Super Ct 2006)) Prejudice is

 inevitable with undue delay which could cause memories to fade and perceptions of events to be

altered     Encarnacum \ Govtafthe VI No SX 15 CV 533 2018 VI LEXIS 73 at *5 6 (VI

Super Ct 2018) (quuting Watts L Two Plus The Inc 
54 VI 286 292
 (V1 2010) (internal

quotations omitted» Prejudice also includes the burden imposed by impeding a party 5 ability to

prepare effectively a full and complete trial strategy     Watts, 
54 VI at 291
 (quoting Emcee v

Klaus 538 F 3d 252 259 60 (3d Cir 2008))

$115       Defendants ncte Plaintiff‘s claims are based on events that allegedly occurred as many as

twenty (20) years ago such that memories are stale witnesses have died and documents are lost

Further, Defendants note the lack of any documents or responses from Plaintiff demonstrates he

likely lacks such evidence In his opposition Plaintiff contends the delayed response has not

caused prejudice to the Defendants at a level requiring dismissal Plaintiff notes there is no

indication Defendants incurred costs burdens or losses from any effort to obtain an order to

compel Plaintiff comply with discovery Plaintiffclaims his delay was less than ninety (90) days,

significantly less than the years long delays in which courts have found prejudice To the contrary,

in their reply Defendants reiterate that the underlying dispute within this matter surrounds an
Amy“! Muhyrdzlm » Jarrah Elgadl and Elm; Entkrprme LLC
Case No ST 2018 CV 00751                                                      Cite as 2022 VI Super96U
Memorandum Opinion
Page 10 of 18

alleged oral agreement between the parties and Defendants alleged refusal to pay Plaintiff since

2010 Defendants note the failure to produce any documentation appears to display that Plaintiff

has no documents and plans to rely entirely on witness testimony about their memnry of

conversations taking place fourteen (14) years ago Additionally the Defendants note the

Plaintiff‘s key witness Muhyeddin s brother Majdi passed away in 2011 Without any

infomation provided by Plaintiff with respeCt to the alleged oral agreement and previous demands

for funds, Defendants argue they had no way to prepare for depositions or to moxe the matter

forward Defendants further note they have raised statute of limitatiuns and laches as affirmative

defenses

{116    The subject motion was filed on July 30 2021 the same day that fact discovery and fact

depositions were due to be completed pursuant to the then effective scheduling plan The Court

is unpersuaded that Defendants were severely prejudiced at the time they filed the instant motion

since the discovery responses were then six weeks overdue However, given this was the second

time the Plaintiff failed to adhere to a scheduling plan, and there was he scheduled date to depose

Muhyeddin or any of Plaintiff‘s other witnesses (who he claims will provide the majority of the

pertinent evidence, given the lack of documentary evidence), it is reasonable that Defendants

sought to take further action to move the matter along or have it dismissed And now those

discovery responses are more than one year late Defendants have been responsible for the minimal

progress made, and upon reviewing the exhibits both parties attached to the instant motion and

opposition it is apparent Defendants made repeated efforts to elicit the necessary discovery and

schedule depositions to move the matter {onward with little to no cooperation from Plaintiff And

certainly, there is no indication that Plaintiffinitiated communication or efforts to move the matter

along The Court notes the costs associated with the additional effort taken to keep the parties on
Amati Muhyeddm v Jamzh EIngt amt Elguzl'l Enterprise LLC
Case No ST 2018 CV 00751                                                     Cue as 2022 VI Super96U
Memorandum Opinion
Page 11 of 18

task is likely significant including all the communication from Defendants as well as the hours

taken to write and file the instant motion and reply Additionally though Defendants filed their

reply in this matter in March 2022 there has still been no profter of discovery from the Plaintiff

or any explanation as to his ongoing delay as of the date of this opinion Even if there are few

documents to support Plaintiff‘s claims and few documents to produce, that void does not excuse

the duty to file responses to the interrogatories and even a formal response to the request for

documents so that Defendants may be apprised of Plaintiff‘s evidence

{117       The Court finds very puzzling Plaintiff‘s continuing delay with no apparent explanation

However even Defendants did not propound discovery requests until May 4, 2021 And they filed

counterclaims so Defendants have their independent duty to prosecute their counterelaims While

the Court detects some prejudice to the Defendants based on the costs and efforts fruitlessly

expended to move the matter forward the Court does not find the prejudice to be so strong as to

trigger dismissal Accordingly this factor weighs slightly in favor of dismissal

       3   Plaintiff’s history of dilaturiness

$118       Conduct that merely occurs once or twice does not demonstrate a history of dilaton‘ness

Encamacmn 2018 V I LEXIS 73 at *7 (citing Brtscoe 538 F 3d at 261) Rather it is [e]xtensive

or repeated delay or delinquency [that] constitutes a history ofdilatonness such as consistent non

response to interrogatories, or consistent tardiness in complying with court orders ’ Id (quoting

Adam v TVS ofNJ Brewery Employee: Pension Trust Fund 29 F 3d 863 874 (3d Cir 1994))

A history of dilatoriness is characterized by a consistent delay from the plaintiffs counsel Taha v

Sharmouj 2022 VI SUPER 21U M11 15 (citing Gilbert v Gilbert SX 15 CV 508 2017 V1

LEXIS 143 at *8 (Super Ct Sep 11 2017))
Amjad Muliyedzlm v Jarrah Elgndi and Elgmlz Enterprise LLC
Case No ST 2018 CV 00751                                                     Cite as 
2022 VI Super 96U

Memorandum Opinion
Page 12 of 18

$119    Defendants make no arguments with respect to this factor within the instant motion In

opposition Plaintiff contends there is no history of dilaton‘ness stating Defendants made no

argument on this factor because there is no evidence to support it In their reply, Defendants argue

that prior to commencing this action Plaintiff sat on his rights for ten (10) years before bringing

suit and after filing suit the Plaintiff has made no significant efforts to move the matter forward

Indeed Defendants claim they have prepared multiple Rule 26 scheduling plans served Rule 26

initial disclosures, arranged mediation, and endeavored to complete mediation, with little or no

cooperation from Plaintiff Defendants note any effort to move forward has been slighted by

Plaintiff‘s stale and flimsy claims and the lack or nonexistence of documentation to support

them

1m)    Though Defendants only addressed this factor in their reply (effectively waiving the

argument when they failed to raise it in the instant motion) the Court will still review the facts of

this matter under each Hallxday factor in order to accurately balance the factors Todman v Hicks,

No ST 16 CV 158 2018 VI LEXIS 133 at *3 (VI Super Ct Mar 5 2018) (citing Hallxday

53 V l at 51 l) (stating the Superior Court must make express findings as to each factor ) Based

on the record and the parties motions the Court finds Plaintiff has done nothing to move this

matter forward since he filed Rule 26 initial disclosures in December 2019 The parties have

repeatedly failed to adhere to a scheduling plan First the parties scheduling plan came and went

during the onset of the Covid 19 pandemic, which is a neutral reason for delay Then, while the

parties adhered to the Court 3 order to hold a mediation prior to December 31 2020 after the

parties adjourned with the intention to meet and continue mediating, they never reconvened In

their most recent attempt to advance this matter the parties established a discovery timeline for

the summer of 2021 The email exchanges between the parties attached as exhibits to both parties
 Anyad Muhyeddm t farm}: Eighth and Elglldl Enterprise LLC
 Case No ST 2018 CV 00751                                                                      Cite as 
2022 VI Super 96U

 Memorandum Opinion
 Page 13 of 18

 motions display Defendants consistently requesting updates and additional information and

 Plaintiff repeatedly provided assurances that he would respond and provide the requested

 documentation but still (as of the date this opinion was filed) has yet to do so While this litigation

 has been pending for nearly four years the lack of effort put forth and continuous delay on the part

 of Plaintiff indicates a pattern of such behavior 9 Even so the Plaintiff cannot be faulted for all the

 delays invulved in this matter, so the Court finds this factor to be neutral with respect to the

balancing test

       4   Willful or bad faith conduct

1121       “Willfulness involves intentional or self sewing behavior ’Encarnacton 2018VI LEXIS

73, *7 8 (quoting Adams 29 F 3d at 875) A trial court must point to specific evidence tojustify

its determination ofwillfulness or had faith             Taha 2022 V1 SUPER 21 U at 11 16 (quoting Malloy

56 V I at 192) When there is no evidence of willfulness on the record the Court must presume

the party or attorney 5 contested conduct was not willful or in bad faith Molloy 56 V I at 174

fizz        Neither party makes arguments that there was or was not bad faith or willful conduct in

this matter In their reply Defendants state the record indicates there may be willfillness or bad

faith since the Plaintiffhad not served his discovery responses as of the date Defendants filed their

reply on March 3 2022 at which time the discovery responses were nine (9) months overdue 10

Upon reviewing the record of this case it is evident Plaintiff has failed to adhere to deadlines and

to date has not filed responses to Defendants                     outstanding interrogatories and request for

production, but the Court finds no evidence ofintentional self serving behavior from the Plaintiff,

9 The Court rejects Defendants arguments that Plaintiff demonstrated a pattern of delay by sitting on his rights before
filing the complaint that initlated this matter Plaintiff‘s pre litigation beha\ lot cannot be a factor in deciding whether
a party Was dilatory in litigation
W But as of the issuance of this opinion, Plaintiff‘s responses are now seventeen (17) months overdue In the Interim,
Plaintiff has never filed a motion for an enlargement of time to file his discovery responses
 Amlnd Muhyeddm w Jarmh Elgadz 0nd EIgudl Enterprise LLC
 Ca<e No ST 2018 CV 00751                                                         Cite as 
2022 VI Super 96U

 Memorandum Opinion
 Page 14 of 18

 nor any indication of willfulness not bad faith Accordingly the Court finds this factor weighs

 against dismissal

        5   Effectiveness of sanctions other than dismissal

 1123       Dismissal is a sanction of last resort, s0 courts must consider alternative methods to

 effectively sanction a dilatory litigant before ordering dismissal Encamacmn 2018 V I LEXIS

 73 at *8 (citing Paulls 
747 F 2d at 869
)         The court should consider whether a lesser sanction

would better serve the interests ofjustice        1d at *8 9 (quoting Guyer V Beard 
907 F 2d 1424

 1429 :0 (3d Cir 1990)) Alternative sanctions can include ‘ excluding evidence, precluding

witnesses striking portions of pleadings or imposing monetary sanctions to compensate the

harmed patty for reasonable expenses, including attomey’s fees, caused by the noncompliance ”

leberl 2017 V I LEXIS 143 at *10 (citing Carly L Mason No ST 06 CV 433 2010 V I

LEXIS 88 at *8 (V 1 Super Ct Dec 7 2010)) The most direct and therefore preferable sanction

for the pattem of attorney delay         would be to impose the excess costs caused by such conduct

directly upon the attorney, with an order that such costs are not to be passed on to the client directly

or indirectly      Watts 54 V I at 310 (Swan J concurring) (quoting Faults 
747 F 2d at 869
)

$124        Defendants argue Plaintiff‘s failure to participate in this matter and the ongoing burden on

Defendants due to the stalled litigation entitles Defendants to an order of dismissal and removal of

any interest Muhyeddin may have in the business or the Property Plaintiff responds that

Defendants have made no showing as to why lesser sanctions are inappropriate since dismissal is

the most extreme sanction available and should only be used under extraordinary circumstances

Plaintiff notes although Defendants attached email communication between the parties, this only

indicates the matter has not been at a years long standstill as is ofien the case for matters dismissed

for failure to prosecute Plaintiff notes he is active on this matter and an order from the Court will
 Am/ad Muhvcddm I Jana}: Elgadr anti Elgadl Enlerprtxe LLC
 Case No ST 2018 CV 00731                                                              Cite as 
2022 VI Super 96U

 Memorandum Opinion
 Page 15 of 18

 suffice to get the case back on track In reply, Defendants reiterate their original arguments for

 dismissal and suggest the only alternative is an order to compel which they opted not to file

 because they claim it would not be adhered to and only serve to further delay the case

 1125    In Rohn v Daily News Publishmg Company a 2015 Virgin Islands Superior Court case

 the defendants failed to seek any sanctions against the plaintiffprior to filing a motian to dismiss

 for failure to prosecute Ruhr: v Daily News Pub] Co No SX 04 CV 158 2015 VI LEXIS 126

at *13 (VI Super Ct 2015) In that case the defendants never filed a motion to compel the

plaintiffto appear to be deposed, nor did they file a motion to compel the plaintiffto answer their

discovery requests Id at *13 14 The Ruhr; court noted dismissal is an appropriate sanction only

when ‘other lesser sanctions have proven futile ’ 1d at *14 (quoting Brunn v Daxmlerch/ysler

Corp N0 2001 0125 2007 U S Dist LEXIS 98198 at *4 (D VI Nov 26 2007)) In the Rohn

decision the court ordered lesser sanctions than the requested dismissal specifically to fit the

facts of the case in which the plaintiff failed to appear for her scheduled deposition or provide an

altemative date to hold such deposition the court barred the use of any testimony plaintiff would

have provided at such deposition at trial Id at *14 1‘

1126     In the instant matter Defendants also jumped directly to requesting the most extreme

sanction of dismissal, rather than considering alternative sanctions Pursuant to V1 R Civ P

37(a) Defendants were entitled to move to compel discovery for Plaintiff‘s failure to answer an

interrogatory or produce documents V I R Civ P 37(a)(3)(B)(iii) (iv) Though there is nothing

within V I R Civ P 37 requiring a party move to compel discovery prior to moving to dismiss

the matter for failure to prosecute the Court notes filing a motion to compel prior to such motion

“ The Rnhn matter was eventually dismined following plaintiffs motion for voluntary dismissal Ruhr: v Daily New:
Pub! C0 72VI 301 (VI Super Ct Dec 19 2019)
 Amlad Muhyezldm v Jarret}: Elgmlz and Elgndt Emeypnse LLC
 Case No ST 2018 CV 00751
                                                                                Cite as 
2022 VI Super 96U

 Memorandum Opinion
 Pa e 16 of 18

 to dismiss is the general convention In this case the Court is persuaded there is an altemative
                                                                                                      to
 the extreme sanction of dismissal particularly given Plaintiff‘s opposition to the instant motion

 Wh1Ch indicates his continued interest in and dedication to the litigation Accordingly, the

 availability of alternative sanctions weighs against dismissal as a sanction

        6   Meritoriousness of Plaintiff’s claims

 {[27       To determine whether claims are meritorious for this inquiry the Court does not use

 summary judgment standards, rather, a claim is deemed “meritorious when the allegatio
                                                                                               ns of the

pleadings if established at trial would support recovery by plaintiffor would constitute a cmnplete

defense       Encamaclon 2018 V I LEXIS 73 at *10 (quoting P014113 
747 F 2d at 869
 70)

1128        The parties make lengthy arguments regarding the specific facts of the matter; however,

such arguments are not necessary to analyze the meritoriousness of Plaintiff‘s claims
                                                                                             under the

applicable standard, articulated in Encarnaclon v Government 0fthe Vlrgm Islands and P014115 v

State Farm Fire and Casualty Company Accordingly the Court looks to the original complaint

to determine the meritoriousness 0f Plaintiff‘s claims

{[29        Plaintiff filed a five count complaint (I) demand for accounting (2) demand for profits

and return of investment (3) demand for participation (4) misuse of partnership property and (5)

preliminary and permanent injunction The major dispute in this matter centers on whether there

existed (or exists) an agreement establishing a partnership under which the parties agreed to co

own and operate a gas station and convenience store and if such agreement exists whether

Defendants violated its terms entitling Plaintiff is entitled to the recovery requested in his original

complaint Upon review of the complaint the Court finds that if all the allegations therein are
 Amjad Muhynddm v Jana}: EIgadz (ind Elgudx Enterprme LLC
 Cam No ST 2018 CV 00751                                                                   Cite a: 2022 V1 Super 96U
 Memorandum Opinion
 Page 17 of 18

 proven at trial the Plaintiff may be entitled to recovery on his claims ‘2 '3 Accordingly the

 potential meritoriousness of the case weighs against dismissal

       7   On balance, the Halllday factors do not weigh in favor of dismissal

1130       The Court finds factors one and two weigh in favor of dismissal However the Court also

finds factor three is neutral with respect to dismissal, and factors four, five, and six weigh against

dismissal Accordingly upon balancing the Hallzday factors and considering the circumstances of

this matter the Court finds the extreme sanction of dismissal is not the appropriate remedy at this

stage of the litigation However, as discussed above, there are alternative sanctions which are

appropriate for these circumstances First the Court will award attorney 3 fees to Defendants

Second the Court will order Plaintiff to promptly respond and provide Defendants with the

outstanding discovery within fifteen (15) days of entry of this opinion and conesponding order

Should Plaintifffail to respond within the allotted time the Court will implement sanctions similar

to those within the Kuhn case barring introduction at trial of any of the items Defendants have

repeatedly requested from Plaintiff in the outstanding interrogatories and request for production

                                                 CONCLUSION

{[31       The Defendants have not demonstrated they are entitled to dismissal of the complaint at

this stage of the proceeding However, the Court finds Plaintiff‘s unexplained lengthy delay is

17 Count 1 Is a demand for accounting where Plaintiff claim: he is entitled to an accounting of the finances of the
business from his partner Elgadl Citing lo 26 V I C §§ 74 and 75 Count II is a demand for profits and return of
investmenl Count 111 15 a demand for participation, where Plaintiff claims he is entitled to equal access and equal
participation in the partnership Count 1V alleges misuse ofpannership property as Plaintiff claims Elgadi should be
paying monthly rent to the parmershlp for his use ofone om: rental units as a li\ 111g space Count v seeks preliminary
and permanent injunction as Plaintiff claims he does not have an adequale remedy In law to recover the damages he
will suffer due to his exclusion from the partnership

” The Court must also acknowledge, however, that Defendants counterclaims could potentially defeat plaintiffs
claim: at trial
Animal Muhyeddm \ Jarruh Elgadx and Elgadr Enterprise LLC
Case No ST 2018 CV 00751                                                   Cite as 
2022 VI Super 96U

Memorandum Opinion
Page 18 of 18

sanctionable The Conn will allow Defendants to file a petition for attorney 5 fees for the time

associated with drafting the motion to dismiss and filing a reply to Plaintiff‘s opposition In

addition the Court will order Plaintiff to respond to the outstanding discovery requests within

fifteen (15) days failing which Plaintiffwill be barred from introducing into evidence at trial the

documents responsive to the outstanding request for production of documents and offering any

testimony or evidence that is responsive to the outstanding interrogatories Additionally because

Defendants made no arguments specific to their request that the Court enter judgment on their

Counterclaims to quiet title and for declaratory judgment the Court will deny such request

       An order consistent herewith will immediately follow

DATED November 3? 2022                                      M %4%9
                                                                   Kathleen ackay
                                                                Judge of the Superior Court
ATTEST                                                             ofthe Virgin Islands
TAMARA eHARL S
Clerk 0 h Court

BY             mm                     W
       DON A D     DONOVAN
       Court Flew Supervisor 1 ( / m/ 9099'?
                     IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
                          DIVISION OF ST THOMAS AND ST JOHN

 AMJAD MUHYEDDIN                                       )       Case No ST 2018 CV 0075]
                                                       )
                                Plaintiff              )
                VS
                                                       )
                                                       )       ACTION FOR BREACH OF
 JARRAH ELGADI and                                     )       PARTNERSHIP ACCOUNTING
 ELGADI ENTERPRISE LLC                                 )       DECLARATORY RELIEF
                                                       )       ACTION FOR PRELIMINARY
                                                       )       AND PERMANENT INJUNCITON
                               Defendants              )
R)

                                              ORDER

        THIS MATTER is before the Court on a Motion to Dismiss for Failure to Cooperate
                                                                                                in
Discovery, filed by Defendants on July 30, 2021       For the reasons set forth in the Memorandum

Opinion entered on this day it is hereby

        ORDERED that the Motion is DENIED it is further

        ORDERED that the portion of Defendants Motion seeking entry ofjudgmem on their

counterclaims is DENIED it is further

       ORDERED that Plaintiff shall within fifteen 115) days of entry of this Order file full

and complete responses to the outstanding interrogatories and request for production ofdocumems,

[azlmg whzch the Plamtth 1411/1742 barred [ram olZermgcmv testimonv or evtdence at [rm] [ha] would

have been VESQOVISIVG t0 the outstanding discoverv requests; it is further

       ORDERED that Defendants will be granted an award of attorney 3 fees for the time

associated with filing the Motion and defending same; it is funher
Am/atl Muhyeddm » Jarmh Elgadz and Elgadx Enterprise LLC
Case No ST 2018 CV 00751
Order
Page 2 of2

        ORDERED that Defendants shall submit the appropnate petition for an award of fees

within thing [30) days of emu of this Order and it is finally

       ORDERED that copies of the Memorandum Opinion and this Order shall be directed to

counsel of record

DATED November Q7 2022                                     M 7%&
                                                                  Kathleen Mackay
                                                               Judge of the Superior Court
ATTEST                                                            of the Virgin Islands
TAM RA CHAR LG
Clerk  Cour.

BY            '9
       DUNN    D    DONG AN
       Coult Clerk Supervisor H /m /W