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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN ORLANDO REMAK, ) ) Plaintiff, ) CASE NO. ST-15-CV-662 ) v. ) ) VIRGIN ISLANDS WATER AND ) POWER AUTHORITY a/k/a WAPA and ) GREGORY RHYMER, ) ) Defendants. ) ) MEMORANDUM OPINION Pending before the Court is Defendant Gregory Rhymer’s April 22, 2016, Renewed Emergency Motion for Stay, and Defendants’ May 3, 2016, Motions to Reconsider and Vacate May 2, 2016, Order.!' For the following reasons, Defendant Rhymer’s Motion for Stay will be denied, and Defendants’ Motions to Reconsider and Vacate will be denied in part and granted in part. RELEVANT FACTUAL & PROCEDURAL HISTORY Plaintiff filed a First Amended Complaint on April 5, 2016, and both Defendants individually filed Motions to Dismiss on April 22, 2016, collectively seeking dismissal of all counts in the Complaint. Defendant Rhymer also filed a Renewed Emergency Motion for Stay of ! Plaintiff filed a consolidated opposition to Defendant Rhymer’s Motion to Stay and Defendants’ Motions ta Reconsider and Vacate on May 23, 2016, to which Defendant Rhymer replied on June 2, 2016, and Defendant WAPA replied on June 3, 2016. The Court notes the time stamp for Plaintiff's consolidated opposition is July 23, 2017, but the pleading was docketed on May 23, 2016. Asa result, the Court deems Plaintiff's opposition as filed on May 23, 2016. Remak y, Virgin Islands Water and Power Authority et al. Case No. ST-15-CV-662 Memorandum Opinion, July 18, 2016 Page 2 of 8. discovery.” On May 2, 2016, the Court issued an order instructing Defendants to respond to Plaintiffs Complaint by May 13, 2016, conduct a Rule 26(f) scheduling conference by May 13, 2016, and submit a written report and proposed order to the Court by May 18, 2016.° In response Defendants filed their Motions to Reconsider and Vacate the May 2, 2016, Order. The next day, on May 4, 2016, the Court issued an Order directing Plaintiff to respond to Rhymer’s Motion for Stay and Defendants’ motions to dismiss by May 23, 2016. As of the date of this Opinion the parties have not conducted a scheduling conference or filed a report with the Court. STANDARDS I. Motion for Stay and Protective Order A motion to stay is traditionally filed under Federal Rule of Civil Procedure 62,’ and the Court also has discretion to stay proceedings sua sponte.’ However, Rhymer relies on Federal Rule of Civil Procedure 26(c), which governs protective orders. According to Rule 26(c)(1), “[a] party or person from whom discovery is sought may move for a protective order in the court where the action is pending or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken.”® Before filing a motion, the parties are required to * Defendant Rhymer initially filed a Motion to Stay on March 15, 2016. 3 Although signed by the judge on April 26, 2016, the Order is considered entered on the date docketed by the Clerk of the Superior Court, May 2, 2016. See SUPER. CT. R. 49; V.LS.CT.R. 5(a)(9); Island Tile & Marble, LLC v. Bertrand, 57 V.I. 596, 604, n. 4 (V.I. 2012) (“A judgment or order is entered within the meaning of this Rule when it is entered in the docket in compliance with Superior Court Rule 49.”). “In the absence of a local statute, case law, or Superior Court Rule addressing the-issue adequately, the Federal Rules of Civil Procedure are applicable to the Superior Court by V.I. Super. Ct. R. 7. * See Gov't of the VI. v. Lansdale, 2009 U.S. Dist. LEXIS 15149, *8 (D.V.I. Feb. 18, 2009). 6 FED. R. Civ. P. 26(c)(1); see SUPER. CT. R. 39. While the Supreme Court of the Virgin Islands has cautioned against this tribunal's wholesale incorporation of the Federal Rules of Civ:l Procedure through Rule 7 of the Supenor Court, the Supreme Court has recognized that “{t]he Superior Court Rules make the Federal Rules of Civil Procedure 26 through 37 applicable for the purposes of discovery in all civil cases.” see Molloy v. Indep, Blue Cross, 56 V.1. 155, 169 n.3 (V.I. 2012). Remak v. Virgin Islands Water and Power Authority et al. Case No. ST-15-CV-662 Memorandum Opinion, July 18, 2016 Page 3 of 8. confer or file a written certification. “The court then has discretion to issue a protective order, for good cause shown, to protect a party or person from ‘annoyance, embarrassment, oppression, or undue burden or expense.””’ As a result, this Court construes Rhymer’s motion as seeking a protective order rather than a stay of the proceedings. Il. Motion for Reconsideration Since no provision of the Virgin Islands Code or rule of this Court authorizes the filing of a motion for reconsideration, a motion for reconsideration of an interlocutory order is properly filed under Local Rule of Civil Procedure 7.3 of the District Court, made applicable to the Superior Court according to Rule 7 of the Rules of the Superior Court. A motion under Rule 7.3 may only be based on “(1) intervening change in controlling law; (2) availability of new evidence, or; (3) of the need to correct clear error or prevent manifest injustice.” A motion for reconsideration “is not 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.” ANALYSIS I. Motion for Stay and Protective Order According to Federal Rule of Civil Procedure 26(c)(1), Rhymer filed a written certification indicating that he attempted to confer in good faith with counsel for all parties to resolve the discovery dispute before filing his motion, but failed to provide any specific details of his efforts, including dates, times, or written requests. Instead, Rhymer states that Co-Defendant’s counsel ” Barton v. V.I. Port Auth., 2015 V.I. LEXIS 59, *4 (V.I. Super, Ct., June 3, 2015) (quoting FED. R. Civ. P. 26 (c)(1). * In re Infant Sherman, 49 V.1. 452, 457 (V.I. 2008) (quoting LRCi 7.3). ° Worldwide Flight Services v. Gov't of the V.I., 51 V.I. 105, 110 (V.I. 2009) (citing Bostic v. AT&T of the Virgin Islands, 312 F. Supp. 2d 731, 733-34 (D.V.1. 2004) (noting that, when a Court is considering a motion for reconsideration of an order — not a final judgment-— the Court enjoys wider discretion in determining what may constitute ‘manifest injustice’). Remak v, Virgin Islands Water and Power Authority et al. Case No. ST-15-CV-662 Memorandum Opinion, July 18, 2016 Pare 4 of 8. consented to a protective order, but Plaintiff's counsel did not. However, a party must do more than simply go through the motions to fulfill the step-by-step requirements of Federal Rule of Civil Procedure 26(c)(1).'° A brief conversation, without further documentation of an effort to resolve the dispute, fails to satisfy the good faith meet and confer requirement.!' As a result, the Court is dissatisfied with Rhymer’s certified statement and finds his motion to be premature based on this procedural defect. !* Even assuming, arguendo, that Rhymer fulfilled his meet and confer obligation, the decision to issue a protective order falls within the sound discretion of the Court.'? Rhymer argues that good cause exists for discovery to be stayed because Rhymer has already been put through the expense of filing two motions to dismiss, discovery is not necessary to resolve any of the issues raised, and it is “unjust to compel a defendant to suffer the annoyance, oppression, undue burden, and expense of discovery while a meritorious motion to dismiss is pending.”’* Rhymer relies on U.S. Supreme Court precedent to support his claim that a plaintiff does not have a right to discovery until after the Court determines the sufficiency of a complaint under Federal Rule of Civil Procedure 8.!° However, none of the cited cases go so far as holding that a Court must stay 10 “The purpose behind these procedures is absolutely clear: to compel both parties to engage in a good faith effort to resolve the .discovery-dispute-prior-to-resorting-to-a_motion.to.compel before-the court,” '! Salem v. Cheyenne Heavy Equip. Rental, LLC, 2015 V.I. LEXIS 41, *4 (V.1. Super. Ct., Apr. 20, 2015). 12 Demming v. VI. Water & Power Auth. & Regatta Point Watergate Villas Condo. Assoc., 2013 V.1. LEXIS 3, *8-9 (V.I. Super. Ct., Jan. 20, 2013) (finding one 3 to 4 minute phone conversation insufficient to satisfy the meet and confer requirement) . '3 See FED. R. Civ. P. 26 (c)(1). 14 Defendant Rhymer's April 22, 2016, Motion for Stay, at 2. 15 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 1965 (2007); Ashcrofi v. Iqbal, 556 U.S. 662, 686, 129 S. Ct. 1937, 1954 (2009). Remak v. Virgin Islands Water and Power Authority et al. Case No. ST-15-CV-662 Memorandum Opinion, July 18, 2016 Page 5 of 8. discovery pending resolution of dispositive motions,'® and if the Federal Rules intended such a result, it would be an explicit component of Federal Rule of Civil procedure 12(b)(6)."’ Here, it is undisputed that the Court has discretion to determine whether to grant or deny a protective order. Defendant’s primary argument in support of his motion is the likelihood of dismissal. However, by Defendant’s standard, the Court would be required to make a preliminary finding on the motion to dismiss, circumventing the procedures for resolution of Defendant’s motions under the appropriate standards.'® While the Court is not foreclosing the possibility of staying discovery in appropriate circumstances, the Court is reluctant to adopt a standard which requires the staying of discovery pending dispositive motions. “It is axiomatic that, as a matter of law, trial judges have the inherent power ‘to control the disposition of the causes on [the court's] docket with economy of time and effort for itself, for counsel, and for litigants.’”!® Further, this jurisdiction has a strong preference for deciding “‘doubtful cases on their merits rather than dismiss them for a failure to strictly follow purely procedural rules.” Even if the Court dismisses a Complaint, the Court often grants leave to amend so that a Plaintiff may cure defects. Additionally, the Court is unable to find good cause under Federal Rule of Civil Procedure 26 (c)(1). Unlike in other cases where the Court issued a protective order for a specific discovery ‘6 Defendant also relies on Mann vy. Brenner, 375 F. App'x 232, 239-40 (3d Cir. 2010), in which the court found that the District Court did not abuse its discretion staying discovery pending resolution of the motion to dismiss and held that the District Court properly dismissed the Complaint. '” See also Government Employees Retirement System v. Gov't of the V.I. Office of the Ag., 2016 V.1. LEXIS 51, *6- —8 (V.I-Super. Ct., May 12, 2016).("[B]oth the Supreme-Court-and the-Superior Court have-consistently applied the standards set forth in Rules 8 and 12(b)(6) of the Federal Rules of Civil Procedure, and the judicial precedents established thereunder, to matters of pleading and motions to dismiss for failure to state a claim.”) '8 See Weeks v. Leeward Islands Apothecaries, L.L.C., No. 1:09-cv-50, 2010 U.S. Dist. LEXIS 52637, at *2 (D.V.I. May 26, 2010) (quoting Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. Cal. 1990)). '9 Pedro v. Ranger American of the Virgin Islands, Inc., 2015 V.1. Supreme LEXIS 19, *23-27 (V.1. 2015) (J. Gomez, dissenting in part) (citing United States v. Colomb, 419 F.3d 292, 299 (Sth Cir. 2005)); Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S. Ct. 163, 81 L. Ed. 153 (1936). 20 Joseph v. Bureau of Corrs., 54 V.1. 644, 650 (2011) (citations omitted). Remak v. Virgin Islands Water and Power Authority et al. Case No, ST-15-CV-662 Memorandum Opinion, July 18, 2016 Page 6 of 8. request,”' here, Rhymer seeks a stay encompassing all discovery requests, claiming discovery would be an undue burden without even providing an example of a burdensome request or deadline. Additionally, the record is absent of any indication of the parties even attempting to create a discovery schedule as directed in the May 2, 2016, Order. Based on the early stages of the proceedings in this case, the Court finds a protective order to be inappropriate. Ii. Motion for Reconsideration Defendants seek reconsideration of the May 2, 2016, Order, and rely on Local Rule of Civil Procedure 7.3, specifically “the need to correct clear error or prevent manifest injustice.” Defendants believe clear error exists based on the Court’s failure to acknowledge Defendants’ Motions, contending that the May 2, 2016, Order, directs Defendants to file responses even though appropriate responses had already been filed. Further, Defendants allege that the Court issued the Order sua sponte and that it was a de facto denial of the Motions for Stay and Reconsideration, resulting in manifest injustice for Defendants. Additionally, Defendants re-assert the expense incurred by Defendants in preparing two motions to dismiss and the weakness of Plaintiff's Complaint, believing Plaintiff does not have a right to discovery if the Amended Complaint cannot survive a motion to dismiss. Plaintiff argues that the Court correctly ordered the parties to proceed with creating a Rule 26(f) scheduling report because the filing of a motion to dismiss does not automatically stay discovery. As discussed above, the Court refuses to make a preliminary finding 21 See e.g., Go Fast Charters LLC v. Texaco Caribbean, Inc., 2015 V.1. LEXIS 93, *7 (V.I. Super. Ct., July 31, 2015) (the Court, finding good cause, granted Defendant's protective order after Plaintiff served requests for admissions outside of the deadline for written discovery, and failed to request leave to belatedly serve the requests); Abdallah v. Abdel-Rahman, 2015 V.1. LEXIS 112, *6-7 (V.I. Super. Ct., Sept. 8, 2015) (the Court issued a protective order recognizing it would be unduly burdensome to require residents of Jordan to appear in person in St. Thomas for a deposition when all necessary arrangements had been made for the depositions to be taken remotely). 22 LRCi 7.3. Defendants also cite Fed. R. Civ. P. 60(a), allowing the Court to “correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a[n]...order.” Remak v, Virgin Islands Water and Power Authority e: al. Case No. ST-15-CV-662 Memorandum Opinion, July 18, 2016 Page 7 of 8. on Defendants’ Motions to Dismiss in considering the motion for reconsideration, since the Court’s review of the May 2, 2016, Order, is limited to the standard set forth in Local Rule of Civil Procedure 7.3. As of the date of this opinion, all of the deadlines in the May 2, 2016, Order, have passed. While the Court recognizes its oversight in ordering Defendants to respond to the First Amended Complaint when Defendants had previously filed motions to dismiss, the Court is unable to find manifest injustice in its decision to direct the parties to confer for a Rule 26(f) scheduling conference. Rather than order the parties to follow Court implemented time limits, the Court left the parties free to negotiate a mutually amenable discovery plan. As discussed above, the Court has discretion to stay discovery. While the Court understands Defendants’ concerns,” without a specific discovery request from which Defendants seek protection, the Court is unwilling to stay all discovery. As a result, the parties should have adhered to the Rule 26(f) scheduling deadlines and the Court does not find clear error in its Order. *3 Defendants argue, “there simply is no justification to put a semi-autonomous public instrumentality, and an individual employee of that instrumentality, which already expended significant effort and resources to address two complaints filed by Plaintiff, to the expense of discovery before a determination is made whether Plaintiff has stated a claim for relief.” Defendant WAPA’s June 3, 2016, Response, at 4. Remak v, Virgin Islands Water and Power Authority et al. Case No. ST-15-CV-662 Memorandum Opinion, July 18, 2016 Page 8 of 8. CONCLUSION For the forgoing reasons, Defendant Gregory Rhymer’s April 22, 2016, Renewed Emergency Motion for Stay is denied, and Defendants’ May 3, 2016, Motions for Reconsideration of, and to Vacate, the May 2, 2016, Order, are denied in part and granted in part. Since the deadlines in the May 2, 2016, Order have passed, the Court will vacate the Order and issue revised deadlines. An Order consistent with this Memorandum Opinion shall issue. Dated: July “ 2016 ae TION. MICHAEL C. DUNSTON ATTEST: Estrella H. Gegrge JUDGE OF THE SUPERIOR COURT of Co OF THE VIRGIN ISLANDS G CX) ss WYOU on Boynes- on Court Clerk Supervisor CERTIFIED A TRUE COPY DATE: -[4- ESTRELLA H. GEORGE Acting Clerk of the Court By Cou rk Il