." 
e 
e 
IN THE SUPREME COURT OF THE VIRGIN ISLANDS  
LUCAN CORPORATION, INC., d/b/a, 
) 
LUCAN'S GIFT SHOP, LUCILLA 
) 
S. Ct. Civ. No. 2007-15 
POSADA and RUDOLFO POSADA 
) 
Re: Super. Ct. Civ. No. 641-2000 
Appellants/Plaintiffs 
) 
) 
v. 
) 
) 
ROBERT L. MERWIN & CO., INC., 
) 
ROBERT L. MERWIN and COLOMBIA 
) 
EMERALDS INTERNATIONAL 
) 
PROPERTIES, INC., 
) 
Appellees/Defendants. 
) 
---------------) 
NOTICE OF ENTRY OF JUDGMENT/ORDER AND MEMORANUM OPINION 
TO:  
Justices of the Supreme Court 
Judges of the Superior Court 
Eszart A. Wynter, Esquire 
Eric S. Chancellor, Esquire 
Venetia H. Velazquez, Esquire 
Denise D. Abramsen 
Clerk of the Supreme Court 
Clerk of the Superior Court 
Supreme Court Law Clerks 
Ms. Janiese Kelly 
Jacqueline Reovan 
Arlene Sutton 
Please take notice that on Ianuary 7, 2008, a(n) JUDGMENT/ORDER and 
MEMORANDUM OPINION dated Ianuary 3, 2008, was entered by the Clerk in the 
above-entitled matter. 
Dated: January 7, 2008  
VENETIA H. VELAzQUEZ, ESQ. 
Clerk of the Court 
BY:~ 
TICE A. THOMAS 
Deputy Clerk II 
---------------
Not For Publication 
IN THE SUPREME COURT OF THE VIRGIN ISLANDS 
LUCAN CORPORATION, INC. d/b/a 
LUCAN'S GIFT SHOP, LUCILLA  
POSADA and RUDOLFO POSADA 
)
)
)
)  
S. Ct. Civ. No. 2007-15 
Re: Super. Ct. Civ. No. 641-2000 
Appellants/Plaintiffs, ) 
v. 
ROBERT L. MERWIN & CO., INC., 
ROBERT L. MERWIN and COLOMBIA 
EMERALDS INTERNATIONAL 
PROPERTIES, INC. 
)
)
)
)
)
)
)
)  
Appellees/Defendants. ) 
)  
On Appeal from the Superior Court of the Virgin Islands  
Considered: September 24, 2007  
Filed: January 3, 2008  
BEFORE:  
RHYS S. HODGE, Chief Justice; MARIA M. CABRET, Associate Justice; and 
IVE ARLINGTON SWAN, Associate Justice. 
APPEARANCES: 
Eszart A. Wynter, Sr., P.c. 
St. Croix, U.S.V.I. 
Attorneyfor Appellants 
Eric S. Chancellor, Esq. 
St. Croix, U.S.V.! 
Attorneyfor Appellees 
JUDGMENT ORDER OF THE COURT 
PER CURIAM. 
In accordance with the premises considered and the memorandum opinion of even date, it 
is hereby 
Lucan Corporation, Inc, et al. v. Robert L. Merwin & Co., Inc., et al. 
S. Ct. Civ. No. 2007-015 
Memorandum Opinion 
Page 2 
ORDERED that the Order of Dismissal is DISMISSED for lack ofjurisdiction; and it is 
further 
ORDERED that the denial of the Motion for Reconsideration is REVERSED and 
REMANDED; and it is further 
ORDERED that copies of this order be directed to the parties. 
SO ORDERED this 3nd day of January, 2008. 
ATTEST:  
VENETIA HARVEY VELAZQUEZ, Esq.  
CERTfFfEOATRUE COpy
Clerk of the Court 
Date: 
..)jlotJ'4(\t·:J s?Lla:
i 
I
­
VENETIA H. VELAZQUEZ
Bd- Z 
- .. 
~ep~ty Clerk 
BY: 
«t:~o:. 
l\'1 CY( 
) Clerk 
t
Copies (with accompanying memorandum) to: 
Justices ofthe Supreme Court 
Judges of the Superior Court 
Eszart A. Wynter, Sr., Esq. 
Eric S. Chancellor, Esq. 
Venetia H. Velazquez, Esq., Clerk ofthe Supreme Court 
Denise D. Abramsen, Clerk of the Superior Court 
Supreme Court Law Clerks 
Janiese Kelly 
Jacqueline Reovan 
Arlene Sutton 
Order Book 
q1l O~ 
y>.~. 
Not For Publication 
IN THE SUPREME COURT OF THE VIRGIN ISLANDS 
LUCAN CORPORATION, INC. d/b/a 
) 
S. Ct. Civ. No. 2007-15 
LUCAN'S GIFT SHOP, LUCILLA  
POSADA and RUDOLFO POSADA 
)
)
)  
Re: Super. Ct. Civ. No. 641-2000 
Appellants/Plaintiffs, ) 
v. 
)
)
)  
ROBERT L. MERWIN & CO., INC., 
)  
ROBERT L. MERWIN and COLOMBIA 
EMERALDS INTERNATIONAL 
PROPERTIES, INC.
)
)
)
)  
Appellees/Defendants. ) 
----~----------) 
On Appeal from the Superior Court ofthe Virgin Islands  
Considered: September 24, 2007  
Filed: January 3, 2008  
BEFORE:  
RHYS S. HODGE, ChiefJustice; MARIA M. CABRET, Associate Justice; and 
IVE ARLINGTON SWAN, Associate Justice. 
APPEARANCES: 
Eszart A. Wynter, Sr., P.c.  
St. Croix, U.S.V.I.  
Attorneyfor Appellants 
Eric S. Chancellor, Esq.  
St. Croix, U.S.V.I.  
Attorneyfor Appellees 
MEMORANDUM OPINION 
PER CURIAM. 
Appellants Lucan Corporation, Inc. doing business as Lucan's Gift Shop, Lucilla Posada 
and Rudolfo Posada (collectively "Appellants") challenge the Superior Court order dismissing 
Lucan Corporation, Inc, et at. v. Robert L. Merwin & Co., Inc., et al. 
S. Ct. Civ. No. 2007-015 
Memorandum Opinion 
Page 2 
their claim for failure to prosecute and the denial of their motion to reconsider the dismissal 
order. For the reasons stated below, we lack jurisdiction to consider the appeal of the order of 
dismissal. However, upon consideration of the denial of the motion to reconsider, we reverse 
and remand. 
I. BACKGROUND 
Appellants filed suit against Robert L. Merwin & Co., Inc., Robert L. Merwin and 
Colombia Emeralds International Properties, Inc. (collectively "Appellees") for breach of 
contract, fraud and misrepresentation. Following two years of inactivity, the Superior Court, on 
October 7, 2006, ordered the parties to move the case forward within thirty days, "failing which 
the matter [would] be dismissed." 
(App. at 3.) 
Neither party responded to the order. 
Subsequently, on November 28, 2006, the Superior Court dismissed the case for lack of 
prosecution. A motion for reconsideration of the dismissal was filed on December 14, 2006 by 
Appellants, and denied as untimely on January 30, 2007, pursuant to LRCi 7.4. Notices of 
appeal from the dismissal and the denial of the motion to reconsider were filed on February 12, 
2007. 
II. DISCUSSION 
A. Jurisdiction Over the Dismissal 
Appellants seek reversal of the Superior Court's order dismissing the case for lack of 
prosecution and the order denying the motion for reconsideration of the dismissal order. This 
Court has jurisdiction over appeals from final Superior Court orders pursuant to V.I. CODE ANN. 
tit. 4, § 32(a). Timeliness of an appeal is determined by V.I.S.CT.R. 5(a) which provides in part: 
(1) In a civil case in which an appeal is permitted by law as of right from the 
Superior Court to the Supreme Court, the notice of appeal required by Rule 4 
shall be filed with the Clerk ofthe Superior Court within thirty days after the date 
of entry ofthe judgment or order appealed from .... 
Lucan Corporation, Inc, et al. v. Robert 1. Merwin & Co., Inc., et al. 
S. Ct. Civ. No. 2007-0!5 
Memorandum Opinion 
Page 3 
(4) If any party makes a timely motion of a type specified immediately below 
within ten days after entry ofjudgment ... the time for appeal for all parties runs 
from the entry of the order disposing of the last such motion outstanding. This 
provision applies to a motion: .... 
(vi) for relief under Fed. R. CIV. P. 60 if the motion is filed within ten days 
after entry ofjudgment. 
In the instant matter, the trial court entered its dismissal order on November 28, 2006. 
Appellants' notice of appeal was not filed within thirty days as required under VISCR 5(a)(l). 
In order to stay the time to file an appeal from that order, Appellants were required to file their 
motion for reconsideration within ten days. The motion for reconsideration, however, was filed 
on December 14, 2006, two days too late to stay the time to appeal.! Accordingly, Appellants 
were required to file their notice of appeal of the dismissal by December 28, 2006. Appellants' 
notice of appeal was filed on February 12, 2007, more than thirty days beyond the deadline. 
Consequently, this Court lacks jurisdiction to consider the appeal of the dismissal order. See 
VISCR 5(a)(1); Plant Econ., Inc. v. Mirror Insulation Co., 308 F.2d 275 (3d Cir. 1962) (where a 
party has not timely appealed the trial court's original rulings, the appellate court has no 
jurisdiction to entertain an appeal of those rulings). 
B. Jurisdiction Over the Motion for Reconsideration 
The denial of the motion for reconsideration was entered on January 30, 2007. The 
notice of appeal from the order denying this relief was timely filed on February 12, 2007, within 
thirty days as required by VISCR 5(a)(1). Therefore, this Court has jurisdiction to review the 
denial of the motion for reconsideration but not the underlying motion. See VISCR 5(a)(1); 
Dickerson v. Board of Educ. of Ford Heights, Ill., 32 F.3d 1114 (7th Cir. 1994); Martinez-
McBean v. Gov 't ofthe VI, 562 F.2d 908,911 (3d Cir. 1977); Browder v. Dir., Dept. ofDept. of 
I When a period of time is less than eleven days, weekends and holidays are not included in the computation of time. Super. Ct. 
R.9. 
Lucan Corporation, Inc, et al. v. Robert 1. Merwin & Co., Inc., et al. 
S. Ct. Civ. No. 2007-015 
Memorandum Opinion 
Page 4 
Corrs. OfIll., 434 U.S. 257, 263 n. 7,98 S.Ct. 556,560,54 L.Ed.2d 521 (1978). 
c. The Motion for Reconsideration 
The appropriate standard of review for the denial of a motion to reconsider is generally 
abuse of discretion but, if the trial court's denial was based upon the interpretation or application 
of a legal precept, then review is plenary. Koshatka v. Philadelphia Newspapers, Inc., 762 F.2d 
329, 333 (3d Cir. 1985). "An appeal from the denial of a motion for reconsideration does not ... 
trigger appellate review of the merits of the underlying judgment. Rather, the circumstances of 
the underlying dismissal are examined for the limited purpose of determining whether there is a 
substantial danger that the dismissal was fundamentally unjust." Dickerson, 32 F.3d at 1117. 
In this case, the trial court denied the motion for reconsideration because the motion was 
not filed within ten days of the dismissal order as required by Rule 7.4 of the Local Rules of 
Civil Procedure of the District Court of the Virgin Islands.2 While Appellants titled their motion 
a "Motion for Reconsideration," and LRCi 7.4 governs motions for reconsideration, the motion 
itself clearly requested relief pursuant to Rule 60(b)(6). (App. at 11.) "[T]he function of the 
motion, not the caption, dictates which rule applies." Smith v. Evans, 853 Fold 155, 158 (3d 
Cir.l988). We must determine if the "motion for reconsideration" not only possessed all the 
formal trappings of a Rule 60(b)(6) motion, but served the purpose of the rule as well. See id. 
("motion not only possessed all the formal trappings of a Rule 59(e) motion, but served the 
purpose of one as well."). 
Rule 60(b)(6) provides, in pertinent part: "On motion ... the court may relieve a party .. 
. from a final judgment, order, or proceeding for ... any other reason justifying relief from the 
2 "The practice and procedure in the Superior Court shall be governed by the Rules of the Superior Court and, to the 
extent not inconsistent therewith, by the Rules of the District Court, the Federal Rules of Civil Procedure, the Federal 
Rules of Criminal Procedure and the Federal Rules of Evidence." Super. Ct. R. 7. 
Lucan Corporation, Inc, et al. v. Robert L. Merwin & Co., Inc., et al. 
S. Q. Civ. No. 2007-015 
Memorandum Opinion 
Page 5 
operation of the judgment." Fed.R.Civ.P. 60(b). The movant must show extraordinary and 
special circumstances justifying relief under Rule 60(b)(6). See Page v. Schweiker, 786 F.2d 150, 
158 (3d Cir. 1986). Rule 60(b)(6) relief is not a substitute for appeal. See Martinez-McBean, 562 
F.2d at 911. 
The underlying matter was dismissed for lack of prosecution. Appellants argued in their 
motion for reconsideration that steps were taken to move the case forward, such as hiring an 
expert and holding a conference with Appellees' attorney to discuss settlement and mediation. 
Appellants admitted that they failed to inform the trial court of this movement, but noted that the 
order to move the case forward did not order the parties to inform the court of such movement. 
Appellants' explanation alleged special circumstances and, therefore, satisfied the formal 
trappings of a Rule 60(b)(6) motion. A previously undisclosed fact, such as the fact that steps 
had been taken, must be timely presented if it is to justify reconsideration under Rule 60(b)(6)). 
See Moolenaar v. Gov't of Virgin Islands, 822 F.2d 1342, 1348 (3d Cir. 1987). 
While 
determination of whether this excuse qualifies as extraordinary and special circumstances in 
order to justify Rule 60(b)(6) relief is reserved for the trial court, we are satisfied that Appellants 
did allege facts sufficient to warrant Rule 60(b)(6) review. 
Unlike Rule 7.4 of the Local Rules of Civil Procedure, Rule 60(b)(6) does not apply a 
ten-day filing requirement, rather it applies a reasonable time standard. See Fed.R.Civ.P. 
60(b)(6); Moolenaar, 822 F.2d at 1346; Martinez-McBean, 562 F.2d at 913. "What constitutes a 
'reasonable time' under Rule 60(b) is to be decided under the circumstances of each case." 
Delzona Corp. v. Sacks, 265 F.2d 157, 159 (3d Cir. 1959). A reasonable time determination is 
reviewed for abuse of discretion. See Watkins v. Lundell, 169 F.3d 540, 544 (8th Cir. 1999). In 
the instant matter the "motion for reconsideration" was filed sixteen days after the underlying 
• 
• 
• 
Lucan Corporation, Inc, et af. v. Robert 1. MelWin & Co., Inc., et af. 
S. Ct. Civ. No. 2007-015 
Memorandum Opinion 
Page 6 
order was entered. There is no precedent that treats sixteen days as unreasonable. See Planet 
Corp. v. Sullivan, 702 F.2d 123 (7th Cir. 1983) (reasonableness is fact specific); see Rice v. Ford 
Motor Co., 88 F.3d 914 (lith Cir. 1996) (finding less than thirty days reasonable). The trial court 
abused its discretion in denying the motion to reconsider as untimely when it was filed just 
sixteen days after the entry of the underlying order. Because the trial court did not undertake the 
necessary Rule 60(b)(6) review of the motion for reconsideration, we will vacate the order 
denying reconsideration and remand this matter for such a review. 
III. CONCLUSION 
The appeal of the dismissal order will be dismissed for lack of jurisdiction as the appeal 
was not filed within thirty days of the order, and the motion for reconsideration did not toll the 
time to file the appeal. The trial court abused its discretion when it applied the ten-day filing 
requirement in Rule 7.4 of the Local Rules of Civil Procedure to a Rule 60(b)(6) motion. 
Accordingly, the denial of the motion for reconsideration will be remanded to the trial court for a 
proper Rule 60(b)(6) review. 
ATTEST: 
VENETIA HARVEY VELAZQUEZ, Esq. 
Clerk of the Court 
CERTIFIED A TRUE COPY 
Date: -s:a.p J1"MU..J QlStK 
By::- cfS?::-
( 
I; 
VENETIA H. VELAZQUEZ
1 1 Deputy Clerk 
AVeourt
l l 1 Dr 
BY: