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DIVISION OF ST CROIX ST CROIX FINANCIAL CENTER INC Civil No SX 18 CV 283 PLAINTIFF ACTION FOR DAMAGES V JURY TRIAL DEMANDED ACKSTAR INC AND JEFF LACROIX J CITE AS 2021 VI SUPER \ Ft 5A DEFENDANTS Appearances Lisa Michelle Komives Dudley Newman Feuerzeig LLP St Thomas U S Virgin Islands For Plamnfl Dwayne Henry, Esq St Croix U S Virgin Islands For Defendants' MEMORANDUM OPINION AND ORDER WILLOCKS Presiding Judge ‘1] 1 THIS MATTER is before the Court for review sua sponte BACKGROUND 1| 2 On August 6 2018 Plaintiff St Croix Financial Center Inc (hereinafter Plaintiff ) filed a verified complaint against Defendant Jackstar Inc (hereinafter Jackstar ) and Defendant Jeff LaCroix (hereinafter LaCroix and together with Defendant Jackstar Defendants ) in connection with a lease agreement and a personal guaranty for the building located at Parcel No 2 of Estate Southgate St Croix U S Virgin Isiands (hereinafter Leased Premises ) In the verified complaint Plaintiff alleged the following counts Count I breach of contract Count II debt and Count III fraud Plaintiff requested the following prayers for relief (i) $145 190 84in unpaid rent additional rent utilities and other charges, (ii) $26 135 98 in interest on all unpaid amounts, including accrual through the date ofjudgment, (iii) $14 941 90 in late fees for unpaid amounts including accrual through the date of judgment (iv) reasonable costs and attorney 5 fees from April 30 2019 through the datejudgment is rendered (v) pre judgment and post judgment interest on all amounts awarded and (vi) all other and further legal and equitable relief appropriate in the premises ‘1[ 3 On December 27 2018 upon Plaintiff’s motion for entry of default against Defendant LaCroix the Clerk of the Court entered default against Defendant LaCroix ‘II 4 Subsequently although the entry of default against Defendant LaCroix was never vacated, on February 15, 2019 Dwayne Henry Esq filed a notice of appearance for Defendants and filed an answer in response to Plaintiff’s verified complaint ‘I[ 5 On June 26 2019 the Court accepted the parties proposed stipulated scheduling order and entered it as the scheduling order in this matter ‘I[ 6 On September 13 2019 Plaintiff filed a motion to compel discovery responses to Plaintiff’s first set of interrogatories and first set of requests for production of documents served on June 21 2019 1[ 7 On November 15 2019 Plaintiff filed a motion for summary judgment against both Defendants ll 8 On February 4 2020 Plaintiff filed a motion for ruling on its outstanding motions or alternatively, a status conference ‘ll 9 On March 4, 2020, Dwayne Henry, Esq filed a motion to be relieved as counsel for Defendants ‘l[ 10 On June 25 2020 a status conference was scheduled via the scheduling order but neither Plaintiff nor Defendants appeared ‘II | 1 On July 6 2020 the Court entered an order whereby the Court ordered that that Dwayne Henry Esq s motion to be relieved as counsel for defendants is GRANTED upon filing proof of service ’ that this matter shall be stayed for a period of forty five (45) days to allow Defendants an opportunity to retain new counsel and so advise the Court by filing a notice, and “that Dwyane Henry Esq serve a copy of this Order on defendants and file proof of service of same with the Court within twenty (20) days (July6 2020 Order) ‘l[ 12 On September 21 2020 Plaintiff filed a motion for ruling on its outstanding motions ‘|[ 13 On July 9 2021 Plaintiff filed a renewed motion for summary judgment against both Defendants DISCUSSION I The Default Entered Against Defendant LaCroix <ll 14 Given that subsequent to the entry of default, Defendant LaCroix appeared and filed an answer in this matter the Court will vacate the default entered against Defendant LaCroix II Plaintiff’s September 13, 2019 Motion to Compel Discovery Responses to Plaintiff’s First Set of Interrogatories and First Set of Requests for Production of Documents, Served on June 21, 2019 ‘ll 15 In its motion Plaintiff moved the Court to order Defendants to fully respond without objection, to [Plaintiff’s] interrogatories and requests for production, order Defendants to “pay the attorneys fees reasonably incurred by [Plaintiff] in connection with bringing this motion and award [Plaintiff] other such relief as the Court deems just and proper (Sept 13 2019 Motion p 4) Plaintiff made the following assertion in support of its motion (i) On June 21 2019 The responses to the discovery were due by July 24 2019, however to date no responses have been received (Id ); (iii) “On July 30 2019 counsel for [Plaintiff] sent a letter outlining the facts and law relating to Defendants’ delinquent discovery responses and requesting a Rule 37 1 ‘meet and confer regarding the same ° (Id) (iv) The meet and confer ultimately took place via telephone on August 26 2019 (Id at p 2) (v) The delay in scheduling the meet and confer was caused by counsel for Defendants failure to respond to counsel for [Plaintiff’s] first two requests for dates for the conference (Id ), (vi) ‘ During the meet and confer conference counsel for Defendants did not dispute that responses to the discovery were both required and overdue but explained that not responding to the discovery was a tactical decision by Defendants to save money to put towards settling the case (Id) (vii) Counsel for Defendants also stated that a settlement proposal would be provided by the close of business on Wednesday, August 28 2019 and when Defendants failed to provide a settlement proposal by that date Plaintiff sent a follow up email to Defendants on August 30 2019 ‘ (Id ) (viii) Counsel for Defendants did not respond to that August 30 2019 email and no settlement offer was presented (Id at p 3) (ix) On September 4, 20l9 Plaintiff ‘ wrote to counsel for Defendants and stated if no settlement proposal or discovery response had been received by close of business on Friday September 8 2019 a motion to compel discovery responses would be filed ‘ (Id ) (x) Counsel for Defendants did not respond to that September 4 2019 email and neither a settlement offer, nor discovery responses have been provided (Id) and (xi) Defendants failure to timely respond to the requests for production and interrogatories has waived any objections to that discovery 5 (Id ) A copy of the July 30 2019 letter was attached to the motion as Exhibit 1 3 A copy of the August 30 2019 email was attached to the motion as Exhibit 2 A Standard of Review ‘ll 16 Rule 33 of the Virgin Islands Rules of Civil Procedure (hereinafter Rule 33 ) permits a party to serve on any other party written interrogatories V I R Clv P 33(a), and requires that [e]ach interrogatory must to the extent it is not objected to be answered separately and fully in writing under oath V I R CW P 33(b)(3) Under Rule 33 [t]he grounds for objecting to an interrogatory must be stated with specificity and [alny ground not stated in a timely objection is waived unless the court for good cause excuses the failure VI R Clv P 33(b)(l)(B)(4) ‘][ 17 Rule 34 of the Virgin Islands Rules of Civil Procedure (hereinafter Rule 34 ) permits a party to serve on any other party requests for production of documents or tangible things to inspect and requests for entry V I R CIV P 34(a) and requires that [fjor each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons’ and the responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection V I R ClV P 34(b)(2)(B) Under Rule 34 [f]or each item or category the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request including the reasons and [t]he production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response VI R CW P 34(b)(2)(B) Untimely objections to requests for production are deemed waived See Klotzbach v VI Water & Power Auth 74 VI 381 390 (VI Super Ct June 14 2021)( The Court agrees if WAPA did not make a timely objection stating the requested customer information was private or confidential ’ then WAPA waives that objection ) ‘ll l8 Rule 37 of the Virgin Islands Rules of Civil Procedure (hereinafter “Rule 37 ) governs Rule 33 and Rule 34 violations Rule 37 provides that [a] party seeking discovery may move for an order compelling an answer designation production, or inspection if (iii) a party fails to answer an interrogatory submitted under Rule 33, or (iv) a party fails to produce documents or fails to respond that inspection will be permitted or fails to permit inspection as requested under Rule 34 VI R CIV P 37(a)(3)(B)(iii) (iv) Rule 37 further provides that [a] failure described in Rule 37(d)(l)(A) is not excused on the ground that the discovery sought was objectionable unless the party failing to act has a pending motion for a protective order under Rule 26(0) V I R ClV P 37(d)(2) Under Rule 37 the court must after giving an opportunity to be heard require the party or deponcnt whose conduct necessitated the motion the party or attorney advising that conduct or both to pay the movants reasonable expenses incurred in making the motion, including attorney 5 fees if the motion is granted or “apportion the reasonable expenses for the motion if the motion is granted in part and denied in part V I R CIV P 37(a)(5)(A) (C) Moreover under Rule 37 [t]he court may on motion, order sanctions for such Rule 33 and Rule 34 violations V I R CIV P 37(d)(l)(A)(ii) B Discussion ‘1[ 19 The Court will note at the outset that the Court finds the Plaintiff has in good faith conferred or attempted to confer with Defendants 6 6 Motions related to discovery pursuant to Rules 26 through 37 ot the Virgin Islands Rules of Civil Procedure are governed by Rules 37 and 37 l of the Virgin Islands Rules of Civil Procedure (hereinafter Rule .37 and Rule 37 1 respectively) Rule 37 and Rule 37 I mandates that the moving party submit a certification with its motion certifying that both parties engaged in substantive good faith negotiations before filing a discovery motion V l R CW P 37(3) and .37 Ha) Sec V I R CIV P 37(a) (“0n notice to other parties and all affected persons a party may move for an order compelling disclosure or discovery The motion must include a certification that the movant has in good faith conferred or attempted to con fer with the person or party failing to make disclosure or discovery in an effort to obtain ‘II 20 Based on the record in this matter, it is undisputed that Defendants were served with Plaintiffs first set of interrogatories and first set of requests for production of documents Defendants violated Rule 33 and Rule 34 when they failed to timely respond to Plaintiffs first set of interrogatories and first set of requests for production of documents There is no pending motion for a protective order under Rule 26(0) so Defendants failure is not excused Thus, at this juncture the Court will grant Plaintiffs September 13 2019 motion to compel and order Defendants to serve their responses without objections to Plaintiffs first set of interrogatories without objections’ and first set of requests for production of documents Furthermore the Court will schedule a hearing as required under Rule 37 on the issue of awarding Plaintiff reasonable expenses incurred in making the motion, including attorney 5 fees See V I R CIV P 37(a)(5)(A) ( If the motion is granted the court must after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion the party or attorney advising that conduct or both to pay the movant 5 reasonable expenses incurred in making the motion including attorney 5 fees ) ‘][ 21 The Court is cognizant that sanctions may be available for such Rule 33 and Rule 34 violations to wit Rule 37(d)( l )(A)(ii) provides that [t]he court may on motion, order sanctions for such Rule 33 and Rule 34 violations The canons of construction in statutory interpretation apply equally to the interpretation of court procedural rules Whyte v Bockmo 69 V I 749 754 55 (V I 2018) and [t]he first step when interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning Milieu People ofthe VI 67 V I 827 844 (V I 2017) It is well settled that when the language of a statute is plain and unambiguous, no represented parties shall confer in a good faith effort to eliminate the necessity for the motion or to eliminate as many ot the disputes as possible ) further interpretation is required See Thomas v People of the VI 69 V I 913 925 (VI 2018) (noting that because the statutory language [of 14 V l C § 2101(a)] is plain and unambiguous no further interpretation is required ) see also Codrmgton v People ofthe V I 57 V I 176, 185 (2012) (‘ Accordingly when the language of a statute is plain and unambiguous a court does not look beyond the language of the statute in interpreting the statute 5 meaning ) Consequently the plain and unambiguous language of Rule 37(d)(l)(A)(ii) controls and the Court may on motion order sanctions Here Plaintiff did not file a motion for sanctions As such the Court will not order any sanctions at this time 111 Plaintiff’s November 15, 2019 Motion for Summary Judgment and Plaintiff’s February 4, 2020 Motion for Ruling on its Outstanding Motions ‘|[ 22 The Court finds that Plaintiff implicitly withdrew its prior November 15 2019 motion for summary judgment and February 4 2020 motion for ruling on its outstanding motions when it filed the July 9 2021 renewed motion for summary judgment and September 21 2020 motion for ruling on its outstanding motions See Magras v Nanonal lndusmal Servzces et a1 , 2021 V U Super 50U ‘|[ 8 see also In re Refinery Dust Claims 72 VI 256 290 (Super Ct Dec 13 2019) (citing Mitchell v Gen Engg Corp 67 VI 27l 278 (Super Ct Feb 23 2017)( a motion can also be deemed withdrawn based on certain actions or inactions of the party who filed the motion ) As such Plaintiff’s November 15 2019 motion for summary judgment and February 4 2020 motion for ruling on its outstanding motions will be deemed withdrawn IV Dwayne Henry, Esq ’5 March 4, 2020 Motion to be Relieved as Counsel ‘ll 23 The record does not reflect that the proofs of service for Defendants were ever filed by Dwayne Henry Esq as ordered by the July 6 2020 order Thus Dwayne Henry Esq 5 March 4 2020 motion to be relieved as counsel was never granted See July 6 2020 order( Dwayne Henry Esq s motion to be relieved as counsel for defendants is GRANTED upon filing proof of service’ ) As such as of the date of this Order, Dwayne Henry, Esq is still the counsel of record for Defendants V Plaintiff’s September 21, 2020 Motion for Ruling on its Outstanding Motions ‘II 24 The Court will grant Plaintiff‘s September 21 2020 motion for ruling on its outstanding motions and address the outstanding motions in this Memorandum Opinion and Order VI Plaintiff’s July 9, 2021 Renewed Motion for Summary Judgment (ll 25 The certificate of service attached to Plaintiff’s July 9 2021 renewed motion for summary judgment indicated that on this 8‘" day of July 2021 a true and correct copy of ST CROIX FINANCIAL CENTER INC S RENEWED MOTION FOR SUMMARY JUDGMENT which does not exceed the page or word limitations in Rule 6(e) was sent via electronic mail to Jeff LaCroix jeff lacroix@aim com (July 9 2021 Motion ) The Court has several concerns regarding the service of Plaintiff’s July 9 2021 renewed motion for summary judgment 9| 26 First, the certificate of service did not include Defendant Jackstar and thus, Defendant Jackstar was not served with a copy According to the proof of service for the summons and complaint for Defendant Jackstar, Defendant Jackstar was served in this matter via its registered agent Bernard C Pattie Thus it is unclear whether Defendant Jackstar was ever served with a copy of Plaintiff’s July 9 2021 renewed motion for summary judgment (ll 27 Second there is nothing in the record that indicates that Defendant LaCroix consented in writing to service via electronic means Rule 5(b) of the Virgin Islands Rules of Civil Procedure (hereinafter ‘ Rule 5(b) ) provides a list of acceptable methods of service for papers other than the complaint and summons 3 Under Rule 5(b)(2)(E), [a] paper is served under this rule by (e) sending it by electronic means if the person has consented in writing in which event service is complete upon transmission but is not effective if the serving party learns that it did not reach the person to be served V I R Civ P 5(b)(3)(E) Thus without Defendant LaCroix s consent to receive service by electronic means Defendant LaCroix was not properly served with a copy of Plaintiff’s July 9 2021 renewed motion for summary judgment 9 ‘]l 28 Finally Plaintiff’s July 9 2021 renewed motion for summary judgment was filed after the Couit entered the July 6 2020 order However as noted above the record does not reflect that the proofs of service for Defendants were ever filed by Dwayne Henry Esq as ordered by the July 6, 2020 order Thus it is unclear whether Defendants were aware of the Court 5 July 6 2020 order 3 Rule S(b) oi the Virgin Islands Rules of Civil Procedure provides (b) Service How Made (1) Serving an Attorney It a party is represented by an attorney service under this rule must be made on the attorney unless the court orders service on the party (2) Serwce in General It service by filing and transmission of notice under the Virgin Islands Electronic Filing Rules is not applicable 21 paper is served under this rule by (A) handing it to the person (B) leaving it (i) at the persons office with a clerk or other person in charge or if no one is in charge in a conspicuous place in the office or (ii) if the person has no office or the office is closed at the person's dwelling or usual place of abode with someone of suitable age and discretion who resides there (C) mailing it to the person‘s last known address in which event service is complete upon mailing (D) leaving it with the Virgin Islands Marshal for service if possible, it the person has no known address (E) sending it by electronic means it the person has consented in writing in which event service is complete upon transmission but is not effective it the serving party learns that it did not reach the person to be served or (F) delivering it by any other means that the person has consented to in writing in which event service is complete when the person making service delivers it to the agency designated to make delivery VI R Civ P 5(b)(2) ° Given that Defendant LaCroix did not consent to receive service by electronic means it is entirely teasible that granting Dwayne Henry Esq 5 March 4 2020 motion to be relieved as counsel upon filing proof of service of the July 6 2020 order on Defendants '0 As such even assuming that Defendants were properly served with a copy of Plaintiff’s July 9 2021 renewed motion for summary judgment they may have been under the impression that their counsel Dwayne Henry Esq would respond thereto and thus they did not respond or retain new counsel to respond on their behalf Nevertheless, as also noted above Dwayne Henry Esq is still the counsel of record for Defendants as of the date of this Order and thereby Dwayne Henry, Esq was the counsel of record when Plaintiff filed its July 9 2021 renewed motion for summary judgment However, Dwayne Henry Esq may have been under the impression that he has been relieved as counsel for Defendants and thus he did not file a response on their behalf ‘ll 29 At thisjuncture, out of abundance of caution to ensure that Defendants are properly served with Plaintiff’s July 9 2021 renewed motion for summary judgment and that Defendants are properly apprised of what has happened in this matter (e g Dwayne Henry Esq filed a motion to be relieved as their counsel and that the Court entered the July 6, 2020 order in response thereto) and given the opportunity to file a response or retain new counsel to file a response on their behalf to Plaintiff 5 July 9 2021 renewed motion for summary judgment the Court will order (i) Dwayne Henry, Esq to serve a copy of the July 6 2020 order and a copy of this Memorandum Opinion and Order on Defendants with the method of service in compliance with the Virgin Islands Rules of Civil Procedure and file the proofs of service thereto Dwayne Henry Esq 5 March 4 2020 motion to be relieved as counsel for defendants, will be granted upon filing proof of service of the ‘“ In tact it is unclear whether Defendants were even aware 0t Dwayne Henry Esq 5 March 4, 2020 motion to be relieved as counsel since the certificate of service attached thereto did not indicate that a copy of said motion was served and did not include Defendant Jackstar to wit the certificate of service attached to Dwayne Henry Esq 5 aforementioned documents, (ii) Plaintiff to serve a copy of its July 9 2021 renewed motion for summary judgment on Defendants with the method of service in compliance with the Virgin Islands Rules of Civil Procedure and file the proofs of service thereto and (iii) Defendants to file a response or retain new counsel to file a response on their behalf to Plaintiff’s July 9 2021 renewed motion for summary judgment within forty five days if they choose to do so After the forty five day period has passed the Court will rule on Plaintiff’s July 9 2021 renewed motion for summary judgment with or without a response from Defendants unless the circumstances then require otherwise CONCLUSION Based on the foregoing it is hereby ORDERED that the default entered against Defendant LaCroix on December 27 2018 shall be and is hereby VACATED It is further ORDERED that Plaintiffs September 13 2019 motion to compel Defendants to respond to Plaintiffs first set of interrogatories and first set of requests for production of documents is GRANTED It is further ORDERED that within twenty (20) days from the date of entry of this Memorandum Opinion and Order, Defendants shall serve their responses without objections to Plaintiffs first set of interrogatories without objections and first set of requests for production of documents It is further ORDERED that on %Q% 9? 2022 at cf 6% am/p In via zoom Defendants and Dwayne Henry, Esq ' shall appear for a hearing on the issue of awarding " Dwayne Henry, Esq was the counsel of record for Defendants when Defendants were served with Plaintiffs first 12/05/2021