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SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN AUSTIN APPLETON, ) Plaintiff, ) vs. ) ) ALLAN E. HARRIGAN, ) CASE NO. ST-10-CV-275 ) Defendant. ) ) ) ALLAN E. HARRIGAN, ) Third-Party Plaintiff, ) vs. ) ) GILBERT APPLETON and MACKCHESNEY ) APPLETON, ) ) Third-Party Defendants. ) ) MEMORANDUM OPINION Third-Party Defendants Gilbert Appleton and Mackchesney Appleton have each moved for a new trial. For the following reasons, both motions will be denied. FACTUAL AND PROCEDURAL HISTORY On May 24, 2010, Plaintiff Austin Appleton filed a Complaint against Defendant Alan Harrigan who in turn filed a counterclaim and third-party action against Defendants Gilbert Appleton and Mackchesney Appleton on July 1, 2010. Austin Appleton submitted an answer to the third-party action on behalf of Gilbert Appleton, purportedly under a power of attorney. On November 19, 2010, the Court granted Harrigan’s request for an entry of default against Mackchesney Appleton for failure to make an appearance in the case, and the Court entered a default against Gilbert Appleton on May 1, 2012, on the same grounds. The Court also struck the pleadings that Austin Appleton had filed on Austin Appleton v. Allan Harrigan ST-10-CV-275 Memorandum Opinion, February 19, 2013 behalf of Gilbert Appleton as Austin Appleton did not provide documentation of a power of attorney that would permit him to act as Gilbert Appleton’s legal representative. A bench trial was conducted on September 11, 2012, and this Court issued a Judgment on December 10, 2012, finding in favor of Harrigan. ANALYSIS Pursuant to Superior Court Rule 50, a court “may set aside an entry of default, judgment by default, or judgment after trial or hearing” for good cause shown. Rules 59 to 61 of the Federal Rules of Civil Procedure govern the application of Superior Court Rule 50. Under Fed. R. Civ. P. 59, a motion for a new trial “must be filed no later than 28 days after the entry of judgment.” Given that the Judgment was entered on December 10, 2012, the Appletons had until January 7, 2012, to file a motion for a new trial. As a result, Mackchesney Appelton’s January 8, 2012, motion for a new trial and Gilbert Appleton’s February 5, 2013, motion for a new trial are untimely. As indicated in a November 29, 2010, Opinion in this case, the Court cautioned the Appletons that “pro se litigants are still expected to comply with the rules of civil procedure, and a pro se litigant’s apparent ignorance of the rules of the Court does not provide good cause to excuse failure to comply with those rules.”! Accordingly, both motions are subject to dismissal for failure to comply with Fed. R. Civ. P. 59. ’ See also Sykes v. Blockbuster Video, 205 Fed. Appx 961, 963 (3d Cir. 2006). Austin Appleton v. Allan Harrigan ST-10-CV-275 Memorandum Opinion, February 19, 2013 Assuming, arguendo, that based on Ruiz v. Jung,’ the Appletons’ pro se motions for a new trial should be construed as brought pursuant to Fed. R. Civ. P. 60(b), the Court will also review their motions under that Rule. Fed. R. Civ. P. 60(b) provides that a court may grant relief from final judgment, order or proceeding upon a showing of: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. A party has only a year to file after the entry of judgment under Fed. R. Civ. P. 60(b)(1) thru (3) and a reasonable time based on subsections (4) thru (6). Mackchesney Appleton’s motion invokes Fed. R. Civ. P. 60(b)(1), as he contends he should be granted a new trial because (1) he was never properly served with the third- party complaint designating him as a third-party defendant; (2) he was not able to testify as a party on the record and was denied his right to due process; and (3) he “did not appear as a party” and did not have the opportunity to cross examine Alan Harrigan as he was under the impression that he was not a party to the matter. The record reflects that Mackchesney Appleton was served with the copy of the third-party complaint on July 8, 2010.7 In addition, on May 3, 2012, Macknesney ? Civ. No. 2008-035, 2009 WL 3568182, at *3 (V.I. Oct. 19, 2009). 3 See Order of this Court dated September 7, 2010. Austin Appleton v. Allan Harrigan ST-10-CV-275 Memorandum Opinion, February 19, 2013 Appleton was personally served with two orders and a memorandum opinion dated May 1, 2012, that designated him as a third-party defendant. Mackchesney Appleton also attended a final pretrial conference on June 18, 2012, during which he requested time to acquire an attorney and to prepare for trial.’ At trial, Macknesney Appleton provided oral testimony. Notwithstanding, Mackchesney Appleton states he was under the impression that he was not a party to the action because of a comment made by Harrigan’s counsel Attorney King at trial that Mackchesney Appleton was not a party to the action. Effectively, Appleton is asserting that he relied on King’s comment to his detriment in that he failed to defend his interests. Given that Attorney King was representing Harrigan, one having interests contrary to those of the Appletons, Mackchesney Appleton had no basis for relying on any such statement made by Attorney King. Moreover, Mackchesney Appleton had ample notice that he was a party to the action. Accordingly, there is no basis for granting Mackchesney Appleton’s motion for a new trial as there has been no showing of mistake, inadvertence, surprise, or excusable neglect. Gilbert Appleton moves for a new trial on the ground that he suffers from dementia. In a January 10, 2013, letter attached to Appleton’s motion, Gilbert Appleton’s doctor, James D. Nelson, states that Gilbert Appleton “has been under his care for the treatment of Parkinson’s disease. Due to this condition, [Gilbert] Appleton suffers from early Dementia since 2010.” “See record of proceeding for final pretrial conference. Austin Appleton v. Allan Harrigan ST-10-CV-275 Memorandum Opinion, February 19, 2013 Gilbert Appleton’s motion invokes both Fed. R. Civ. P. 60(b)(1) and (2) for excusable neglect and newly discovered evidence, respectively. A party moving for a new trial under Fed. R. Civ. P. 60(b)(2) must show that the newly discovered evidence “could not have been discovered prior to trial through the exercise of reasonable diligence.”° Although Doctor Nelson’s letter was submitted after trial, there is nothing in the letter that suggests that Doctor Nelson’s diagnosis of Gilbert Appleton’s condition occurred during or subsequent to trial. As a result, Gilbert Appleton has not met his burden to demonstrate that the diagnosis of his medical condition is newly discovered evidence. Gilbert Appleton has also failed to show he should be granted a new trial based on mistake, inadvertence, surprise, or excusable neglect. At no time prior to the filing of his pending motion did Gilbert Appleton or any of his family members disclose to the Court any evidence of his medical condition that appears to have become manifest in early 2010. At trial, Austin Appleton only indicated that Gilbert Appleton had a stuttering problem, which was apparent when Gilbert Appleton testified, but nothing in his testimony leads the Court to find that Gilbert Appleton suffered from any other condition. In addition, Doctor Nelson’s cursory description of Gilbert Appleton’s medical condition gives no indication that Gilbert Appleton was unable to represent his own interests at trial. Accordingly, Gilbert Appleton’s motion for a new trial will be denied. 5 Henry v. Hess Oil Virgin Islands Corp, 33 V.|. 163, 171 (D.V.I. 1995). Austin Appleton v. Allan Harrigan ST-10-CV-275 Memorandum Opinion, February 19, 2013 An Order consistent with this Opinion shall follow. Dated: February R& 2013 HON. MICHAEL C. DUNSTON ATTEST: Venetia H. Velazquez, Esq. JUDGE OF THE SUPERIOR COURT Clerk of Court AN OF THE VIRGIN ISLANDS UG Donna D. Donovan Court Clerk Supervisor BYP AD