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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX JEAN R. WITHEY, FAM. NO. SX-12-CS-37 Petitioner, ACTION FOR CUSTODY VS. SHARIMA BERMUDEZ, Respondent. ORDER AND NOW, it is hereby ORDERED that Respondent Sharima Bermudez’s Motion for Reconsideration is DENIED in part and GRANTED in part; and it is further ORDERED that Ms. Bermudez shal! remit to the Court registry the total amounts submitted by Mr. Withey in attorney’s fees and expenses for March 3, 5, and 6, 2014 (See: Invoice, filed March 10, 2014); and further ORDERED that a copy of this Order shall be served on all parties; as well as the IT Division and Law Librarian of this Court. DONE AND SO ORDERED this 16" day of December, 2014. bh ASU DENISE A. HINDS ROACH, JUDGE IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX JEAN R. WITHEY, FAM. NO. SX-12-CS-37 Petitioner, ACTION FOR CUSTODY vs. SHARIMA BERMUDEZ, Respondent. MEMORANDUM OPINION THIS MATTER comes before the Court on Respondent Sharima Bermudez’s (“Ms. Bermudez”) Motion for Reconsideration, filed on April 15, 2014, challenging this Court’s rulings of March 6, 2014 [oral] and April 14, 2014 [written], which respectively: (1) limited the Respondent’s recall witnesses; as well as (2) awarded attorney’s fees to Petitioner as sanction for failure to timely disclose, supplement and admit discovery. In the alternative, Ms. Bermudez challenges the amount in fees levied. During the March 2014 trial, Attorney Renee Dowling, Esq. appeared on behalf of the Mother, Ms. Bermudez. Also present was the Father, Jean Withey (“Mr. Withey”), represented by Attorney Emile Henderson, Esq. For the reasons which follow below, this Court DENIES in part and GRANTS in part said Motion. FACTUAL AND PROCEDURAL BACKGROUND This custody matter arose upon Mr. Whitey’s Petition for Custody, filed October 12, 2012. After two (2) years of litigation, including a discovery process and a hearing on an intervening, third-party petition, the above-captioned matter came before the Court for Final Hearing in March, April and June! of 2014. Upon commencement of the trial in March, this Court heard oral arguments on Mr. Withey’s pending Motions in Limine to exclude respondent’s witnesses, further supported by the parties’ overnight briefs by order of the Court. Subsequently, this Court issued an [oral] Order from the bench on March 4, 2014; as well as a written Order of April 14, 2014 inclusive of detailed factual findings, wherein it denied Mr. Withey’s request to exclude evidence, given the best interest of the child and the probative value ' The dates of the Final hearing were March 3 — 6, 2014, April 15, 2014 and June 27, 2014. Withey v. Bermudez Fam. No. SX-12-CS-37 Memorandum Opinion of the evidence. The Court, having also made a bad faith finding,’ imposed monetary sanction under Fed. R. Civ. P. 37, ordering “[t]hat Respondent, Ms. Bermudez is responsible for Petitioner, Mr. Withey’s attorney fees and expenses commencing March 3, 2014 and through to the final determination of the instant custody matter [...].” Ms. Bermudez argues that this Court wrongfully imposed discovery sanctions in the absence of a preliminary Court order to compel Ms. Bermudez to comply with discovery rules and requests. In the alternative, Ms. Bermudez contends that the total fees and expenses levied against her, are neither reasonable nor “caused by the [discovery] failure,” pursuant to the requirements of Fed. R. Civ. P. 37 (b) (2) (C). Additionally, Ms. Bermudez argues that this Court violated her due process rights by denying her request to recall witnesses to testify on previously unexplored subject matter. STANDARDS OF LAW Motions for Reconsideration Pursuant to L. R. Ci. 7. 3, “a party may file a motion asking the Court to reconsider its order or decision. Such motion shall be filed within fourteen days after the entry of the order or decision unless the time is extended by the Court. Extensions will only be granted for good cause shown. A motion to reconsider shall be based on an [1.] intervening change in controlling law, [2.] availability of new evidence, or [3.] the need to correct clear error or prevent manifest injustice.” Local Rules of Civil Procedure 7.3. See also: FirstBank Puerto Rico y. Webster, 2014 WL 3592093 (V. I. Super. 2014); Harsco Corp. v. Zlotnicki, 779 F. 2d 906, 909 (3rd Cir. 1985). Such motions are not substitutes for appeals, and are not to be used as “‘a vehicle for registering disagreement with the court’s initial decision, for rearguing matters already addressed by the court, or for raising arguments that could have been raised before but were not.” Bostic v. AT&T of the V. L., 312 F. Supp. 2d 731, 733, 45 V. L. 553 (D. V. I. 2004). See also: In Bank of N. S. v. George, U.S. Dist. LEXIS 11786 (Feb.15, 2008); In Mendez v. Havens, L. L. C., 2008 U. S. Dist. LEXIS 43989 (June 3, 2008). Discovery Sanctions Courts have “inherent power to impose sanctions on litigants and attorneys appearing before it for bad-faith conduct.” Samuel v. United Corporation, 2013 WL 5530587 *2 (V. I. Super. 2013). In addition to its inherent power, the Court also has authority to impose sanctions pursuant to Rule 37 of the Fed. R. Civ. P. Discovery shall be had in the Superior Court of the Virgin Islands, pursuant to the provisions of Rules 26 to 37, inclusive of the Federal Rules of Civil Procedure. Super. Ct. R. 39 (a). The imposition of discovery sanctions under Rule 37 is a matter within the discretion of the trial court. Davis v. Varlack Ventures, Inc., 2013 WL 3367302 *4 (V. I. 2013) (citing Newman v. GHS Osteopathic, Inc. Parkview Hosp. Div., 60 F. 3d 153, 156 (3d Cir. 1995)). 2 Note, a bad faith finding is not required under Fed. R. Civ. P. 37. Withey v. Bermudez Fam. No. SX-12-CS-37 Memorandum Opinion CONCLUSIONS OF LAW Recall Witnesses On the issue of the recall witnesses that Ms. Bermudez sought to reexamine, this Court exercised its sound discretion in granting and withholding leave to recall Ms. Bermudez’ various witnesses for further cross-examination at different points throughout trial, pursuant to 5 V. I. C. § 736 (“Leave is granted or withheld in the exercise of sound discretion.”). Nevertheless, this issue is not properly before the Court because the fourteen (14) day time period for filing for reconsideration of the Court’s oral ruling of March 5-6, 2014 tolled in excess of twenty (20) days.’ Sanction As regards attorney’s fees, it appears that Ms. Bermudez seeks to take another bite at the apple inasmuch as Respondent has already set forth in various prior oral and written arguments: (a.) logistical and economic hardships; (b.) pro se status and new counsel at latter stage of litigation; and (c.) Federal Rules of Civil Procedure 37 (b) (2) (a) which purportedly predicates sanctions upon violation of a Court order compelling discovery. Furthermore, Respondent continues to assert that her eve of trial disclosure was not “wrong or untimely.” Nonetheless, it is not enough to register or rehash disagreement with the Court’s April 14, 2014 Judgment. Rather, Ms. Bermudez must identify an intervening change in the law, new evidence, or clear error. Upon Motion of Mr. Withey and the Court having considered all arguments as to why Ms. Bermudez’ conduct was not sanctionable, it made express findings that Respondent’s conduct was an unjustified and harmful abuse of discovery rules. Such failure was eligible for sanction under FRCP 37 (c), which provides, in part that “[i]n addition to or instead of exclusion of offending evidence, “the court, on motion and after giving an opportunity to be heard, the court may order payment of the reasonable expenses, including attorney’s fees, caused by the failure.” Fed. R. Civ. P. 37 (c) (1) (A)* (emphasis added). Thus, the Court properly exercised its discretion under Fed. R. Civ. P. 37 (c) (1) (A) and (c) (1) (c) and imposed sanctions in the form of attorney’s fees and expenses. Reasonableness of Attorney's Fees Submitted Ms. Bermudez also argues that the attorney’s fees levied against her by this Court under FRCP 37 are not “reasonable” because under the same rule such fees must be “caused by the failure.” 3 The April 14, 2014 Order does not address Ms. Bermudez’s proposed recall witnesses. 4 Additionally, Rule 37 (c) (1) (c) permits the Court to impose additional sanctions, “including any of the orders listed in Rule 37 (b) (2) (A) (i) - (¥).” 5 FRCP 37 (c) (1) (A) provides that the court “may order payment of the reasonable expenses, including attorney’s fees, caused by the failure.” Withey v. Bermudez Fam. No. SX-12-CS-37 Memorandum Opinion It is long- and well-established that Courts have broad discretionary power to correct abuses of the judicial process, as a function of their mandate to administer justice. Thus, a court’s authority to impose sanctions under FRCP 37 is in addition to its existing inherent powers. Battiste v. Virgin Islands Telephone Corporation, 2006 WL 2589448 *4 (VI. Super.)(“In addition to its inherent power, the Court also has authority to impose sanctions pursuant to Rule 37 of the Fed. R. Civ. P.”). See also: Chambers v. Nasco, Inc., 501 U.S. 32 (1991). Moreover, sanctions are not only imposed to make one party whole for “expenses caused by an opponent’s obstinacy or misconduct,” but a/so to penalize the offending party; as well as “to deter those who might be tempted to such conduct in the absence of a deterrent.” Battiste v. Virgin Islands, Supra at *4 (V. I. Super.) (quoting Tutu Wells Contamination Litigation, 162 F. R. D. 46, 62 (D. Vi. 1995)). Thus, sanctions are not merely levied for the sole purpose of compensating for actual monetary loss, but are also punitive and corrective. However, the parameters of FCRP 37 as regards monetary sanction are clear. The “Third Circuit has instructed that monetary sanctions should relate directly to the expenses incurred due to the noncomplying party’s violation.” Lewis v. Mazda Motor of America, Inc., 2012 WL 6634145 *8 (D. Virgin Islands) (citing Martin v. Brown, 63 F. 3d 1252, 1264 (3d Cir. 1995)). See also: Roadway Express, Inc. v. Piper, 447 U.S. 752, 763-64 (1980) (“Rule 37 requires the amount of any monetary damages to be specifically related to expenses incurred by the violations.”). Therefore, tension exists between the limitations on discovery sanctions set forth in Fed. R. Civ. P. 37 and court’s inherent powers to impose sanctions. The issue is whether this Court’s inherent sanction power is unlimited, or whether it is harnessed to the federal statute which limits monetary fees and expenses. Notably, the age-old proposition of our highest Court is that [court’s] inherent powers “are not governed by rules and statutes.” United States v. Hudson, 7 Cranch 32, 24 L. Ed. 259 (1812). Indeed, a more recent U.S. Supreme Court decision recognized that in relationship to statutes and rules, “[i]nherent power sanctions are the quintessential gap fillers of sanctions law.” Chambers v. Nasco, Inc., Supra. That is, the Chambers Court established that rules and statutes do not displace Court’s inherent powers to impose sanctions. Rather, court’s may fill in the gaps of sanctions law with their own inherent powers where there is a finding of bad faith (“where party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.”) and where “neither the statutes nor the rules are up to task.” Id. at *33. In Chambers, the Supreme Court upheld the District Court’s decision to impose the total cost of litigation as sanction for the fraud perpetrated on the Court and the bad faith displayed toward opponent and the court throughout the litigation. Id. at 34 (“[I]n light of the frequency and severity of Chambers’ abuses of the judicial system and the resulting need to ensure that such abuses were not repeated.”). Importantly, the District Court found the various federal rules and statutes governing sanction “insufficient” for its purposes.” Id. at *41. In the instant matter, this Court’s detailed prior Order found Ms. Bermudez’ conduct to be in bad faith due, in part, to a history or pattern of persistent disregard or avoidance of the general rules of discovery, requests by Mr. Withey and this Court’s inquiry into the matter; as well as the Withey v. Bermudez Fam. No. SX-12-CS-37 Memorandum Opinion appearance of a false representation made to this Court regarding Ms. Bermudez’ compliance with discovery. Ms. Bermudez was sanctionable under FRCP 37 (c) and liable for Mr. Withey’s fees and expenses that directly related to Ms. Bermudez’ discovery failures. See: FRCP 37 (c) (1) (C). Moreover, throughout the trial, significant portions were dedicated to resolving and addressing discovery issues, including the Court’s close supervision of compliance with requests for production; as well as addressing other consequences caused by Ms. Bermudez’ discovery failures. Nevertheless, her failure to adequately respond to requests for production in the discovery process, is not covered under Rule 37. Thus, the Court recognizes the difficult burden in accurately pinpointing the true length of trial had Ms. Bermudez complied with the rules of discovery. Moreover, after four (4) days, the trial was continued in order to afford Mr. Withey the opportunity to recall witnesses as a direct result of discovery violations. In light of its bad faith finding, the difficulty in precisely teasing out fees directly related to violations, unavailability of the exclusion sanction due to the primacy of best interest of the child standard, and the punitive and deterrent purposes of sanction - the Court necessarily fills in the gap not reached by Rule 37, through its inherent powers to sanction. Thus, Ms. Bermudez was also made responsible for the balance of attorney’s fees and expenses from March 3, 2014 through to the conclusion of the proceedings, The Court is mindful that “[bJecause of their potency, inherent powers must be exercised with restraint and discretion.” Roadway Express, Supra at 764. Moreover, the propriety of a sanction must generally be reasonable in light of the circumstances surrounding a litigant's violative conduct. See e. g., Samuel v. United Corporation, 2013 WL 5530587 (V. I. Super.)); In re Hendricks, 1998 WL 242720 *3 (V.1.1998) (“Thus, while minor first failures by an offending party may visit monetary sanctions, repeated violations, refusal to comply with discovery requests, bad faith, and especially when such conduct cause irreparable prejudice and delay upon the other party, is addressed with more severe sanctions.”). Moreover, the Court recognizes that the instant factual scenario is not equal to the severity of egregious acts displayed in Chambers, which included a series of conduct constituting oppression, harassment and massive expense; and which justified over one-million dollars ($1,000,000) in the total cost of litigation, shifted to Chambers. However, it believes that additional sanction is justified. A part from the foregoing two (2) years of litigation, there were seven (7) days of trial during March, April and June. This Court shall approve those reasonable fees and expenses for three (3) days for March 3, 5 and 6, 2014 and submitted by Counsel for Mr. Withey, supported by affidavit. Thus, in the instant matter, levied fees do not represent the total cost of litigation for Mr. Withey, rather they capture a “slice” of the litigation process. Satisfactory payment of such fees and expenses shall conclude Ms. Bermudez’ sanction liability. Withey v. Bermudez Fam. No. SX-12-CS-37 Memorandum Opinion CONCLUSION Failures to comply with discovery law can create an impact which is difficult to accurately gauge or quantify as they often engender an entangled or ripple effect in the course of proceedings. This Court concludes that the record fully supports its findings and the imposition of sanctions is provided for under FRCP 37, in addition to the well-established proposition that courts have broad albeit conditional discretion in the imposition of discovery sanctions. Additionally, this Court finds that fees and expenses invoiced at $250.00 per hour in .10 increments, submitted by Counsel for Mr. Withey on March 10, 2014 are reasonable, consistent with case law. See e. g. Flagstar Bank, FSB v. Stridiron, 2013 WL 5941298 (D. Virgin Islands)). The parties are permitted to arrive at payment arrangement upon agreement. An Order of the same date and consistent with this Memorandum Opinion shall follow. DONE AND SO ORDERED this 16" day of December, 2014. C2__ DENISE A. HINDS ROACH, JUDGE les Art Slerk “a visor PTI