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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN JEWEL HARRIGAN ) ) CASE NO ST 2017 CV 00504 Plaintiff, ) vs ) ACTION FOR DAMAGES ) VIRGIN ISLANDS DEPARTMENT OF ) PUBLIC WORKS and THE GOVERNMENT ) OF THE VIRGIN ISLANDS ) ) A Cite as 2020 VI Super 79U MEMORANDUM OPINION AND ORDER fill Pending before the Court are the following 1 Plaintiff Jewel Harrigan 3 Motion for Relief From 2/8/2019 Memorandum Opinion and Order Issued in This Matter filed on May 15, 2019 and 2 Defendants Virgin Islands Department of Public Works and the Government of the Virgin Islands Response in Opposition to Plaintiff’s Motion for Relief From 2/8/2019 Memorandum Opinion and Order Issued in This Matter filed on June 24 2019 Plaintiff’s Motion for Relief will be denied because (1) she merely amplifies the prior reasons for the untimely filing of her Complaint and (2) she does not provide any legal authority in support of her Motion FACTUAL AND PROCEDURAL HISTORY 112 On September 12, 2015 Plaintiff Jewel Harrigan stepped into a hole while walking along Second Street in Sugar Estate, St Thomas, causing her to fall and suffer injuries 1 Harrigan filed a Notice of Intent against the Government of the Virgin Islands, Department of Public Works on November 17, 2015 Harrigan s counsel at the time, Attorney Monica Howard, passed away on November 28 2016 Harrigan 5 current counsel of record, Attorney Wayne Anderson, was in communication with Attorney General Claude Walker on February 21, 2017, inquiring about the status of the case and then met with Assistant Attorney General Ariel Smith in April of 2017 Attorney Wayne Anderson traveled to South Carolina on a pre planned vacation with the intention to return to St Thomas on September 12 2017 113 However, Hurricane Irma struck St Thomas and St John on September 6, 2017, and I Compl 11 5 Jewel Harrlgtm v Virgin Islands Department ofPubllc Works, er a! Case No ST 2017 CV 00504 Memmandum Opinion and Older Page 2 of6 2020 VI Super 79U Hurricane Maria struck the Virgin Islands on September 20, 2017, causing catastrophic damage Attorney Anderson was unable to return until October 18 2017 Attorney Anderson filed a Complaint and a Motion for Relief from a Judgment or Order and in the Alternative for Extension of Time to File Plaintiffisic] Complaint on December 22 2017 114 On May 24,2018, the Court issued an Order reserving its ruling on Harrigan 5 Motion for Relief from 3 Judgment or Order and in the Alternative for Extension of Time to File Plaintiff [sic] Complaint and permitted Harrigan an extension of time to serve her Summons and Complaint upon the Government The Government filed its Motion to Dismiss on August 14, 2018 115 The Court issued a February 8, 2019 Memorandum Opinion and Order, which was entered on February 11 2019 granting the Government 5 Motion to Dismiss ruling that even with the applications of Administrative Order No 2017 0001 and Administrative Order No 2017 005 granting extensions due to the hurricanes, Harrigan s Complaint was still untimely due to the two year statute of limitations 16 On May 15 2019 Harrigan filed her pending Motion for Relief From 2/8/2019 Memorandum Opinion and Order Issued In This Matter The Government filed Defendants Response in Opposition to Plaintiff’s Motion for Relief From 2/8/2019 Memorandum Opinion and Ordei Issued In This Matter on June 24, 2019 ANALYSIS 117 Harrigan erroneously cites to Federal Rules of Civil Procedure Rule 60 as grounds for her Motion for Relief The applicable rule is Virgin Islands Rules of Civil Procedure Rule 60, which states (b) (hounds for Relief from a Final Judgment, Order, 01 Proceeding On motion and just tenns the court may Ielieve a party 01 its legal 1ep1esentative fiom a final judgment, 01 der, 0r pioceeding 1°01 the following leasons (1) mistake inadvertence surpiise 01 excusable neglect, (2) newly discoveied evidence that could not, with reasonable diligence have been discovered in time to move for a new trial under Rule 59(b); (3) f1 aud (whethei in a fonn previously called intrinsic 01 extiinsic), miSIepiesentation, 01 misconduct by an opposing paity; (4) the judgment is void; (5) thejudgment has been satisfied released 01 discharged it is based on an eailiei judgment that has been reversed 01 vacated; or applying it prospectively is no longel equitable; 0r (6) any othei 1eason thatjustifics 101in (c) Timing and Effect of the Motion (1) Timing Jewel HarrIgan v Virgin Islands Department 0fPubltc Works, er a! Case No ST 2017 CV 00504 Memorandum Opinion and Order Page 3 of6 2020 VI Super 79U A motion under Rule 60(b) must be made within a reasonable time and f01 reasons (1) (2), and (3) no more than a year after the entry of the judgment or order 01 the date of the pioceeding 7 118 The Motion f01 Relief neitheI specifies under which ground of Rule 60 Harrigan seeks relief, nor does Harrigan piovide any legal authority in support of he1 Motion As grounds f01 the Motion, Harrigan’s counsel of record discusses his ongoing medical, financial, and emotional distress fiom the fall of 2016 th10ugh 2017 3 Attorney AndeISon acknowledges that he did Visit the Office of the Attorney General to speak to the Assistant Attorney General assigned to the matte1 Howevei, he was told both times that an Assistant Attorney General had yet to be assigned and Attomey Anderson would be contacted then4 Attomey Anderson visited his daughter in August of 2017 to help deal with her medical conditions and planned to file the complaint upon 1etuming on September 12 ‘ Attorney Anderson admits that he mistakenly believed the deadline was Septembei 18, 2017 and not the date of his September 12, 2017 Ietum flight to St Thomas, which was the actual deadline to file the complaint6 Harrigan 5 Motion emphasizes that he1 counsel 0f1ec01d was extremely distiessed by his own ongoing medical situation, his daughtei’s medical issues, other ongoing financial adveisities and emotional stless that we1e all then exacubated by Hunicanes Inna and Maria on September 6, 2017 and Septembel 20, 2017 7 119 llanigan s Motion fails to p1 ovide any legal auth01ity in support of the reliefbeing sought Nor does she specify under which giound of Rule 60 she brings this Motion for Relief Theiefore, the Coult must infei based on the contents of the Motion that Harrigan seeks 1elief unde1 Rule 60(b)( 1) excusable neglect 1110 Excusable neglect is an equitable determination wheie the court takes into account all 1elevant ci1cumstances sunounding the omission including the dangel of prejudice to the opposing party the length 0fthe delay and its potential impact on judicial p10ceedings the reason 1°01 the delay including whethel it was within the 1easonable contiol 0f the movant and whethei the movant acted in good faith 8 Even though this C ourt alieady found that Harrigan failed to meet l1€1 burden of showing entitlement to equitable tolling in this matter in the Febmary 8 2019 MemOIandum Opinion and Orde1 it does not find that she has demonstrated excusable neglect 1111 As to the dangei of prejudice to the non movant the Government at gues that it has been and will continue to be piejudiced by expending its human and financial resoumes to defend 2SeeVIR CIv P 60 3 See Pl 5 Mot for Relief 1 4 See Id 2 5 See Id 6 See Id 7 See 1d 3 8 See Fullel v Blowne 59 V I 948 954 (V I 2013) (citing Blown v People 49 V I 378 383 (V I 2008) (quoting Ploneel [nv Sew Co v answzck Assoc 507U S 380 395 (1993)) Jewel Harrlgan v Virgin Islands Department 0fPubllc Works, e! a] Case No ST 2017 CV 00504 Memorandum Opinion and Order Page 4 of6 2020 VI Super 79U Plaintiff’s meritless claims 9 Although this matter has already been dismissed, Plaintiff is asking to ieopen and 1elitigate issues thereby forcing the Government to continue to defend itself in this action '0 Prejudice t0 the opposing party is generally demonstrated by eithe1 inCIeased expense to the opposing party aiising from the extra costs associated with filings 1esponding to dilat01y behavior or inc1eased difficulty in the opposing parties ability to present or defend their claim(s) due to the imp10per behavior 1' Also, as time passes, witnesses move, their memories dim and moods may be lost While the Govemment does contend continued expenditures in this case as piejudice, the Court does not weigh this significantly in its determination of excusable neglect 1112 As to the length of delay and its impact on judicial proceedings this Court has aheady completed an analysis of the delay in its February 8, 2019 Memorandum Opinion and Ordei wherein the Court found that even if the Administrative Olders tolling court deadlines in light of Hurricanes Irma and Maria applied to the statutory deadline to file a tort claim the most libel a1 application of these Administrative Orders still does not make Hanigan s filing timely the most liberal application of the administrative orders tolling deadlines would have established a deadline f01 Harrigan to file her Complaint by Novembei 27, 2017 and the Complaint was not filed until December 18, 2017 While the Couit acknowledges and is sympathetic to the ciicuinstances sunounding the bum ieanes devastation, the Court finds that the delay is beyond what is constituted as excusable neglect In what was consideIed a close call, the Dist1ict C0u11 0fthe Virgin Islands found that the Plaintiff made a showing of excusable neglect when there was a six day delay in (JZCISgOH \ leolla Wale) N01 1h 4mm Ica ()pelalmg 9e; Vices LLC p A 48 day delay was conside1ed significant in Gaullel James v Hmema LLC '3 Even in applying the most lenient interpretations, Hanigan’s delay is still significant 1113 As for the leasons for the delay and whether it was in the control of the movant, courts in the Virgin Islands have consistently held that a busy schedule of counsel by itself, does not establish excusable neglect ‘4 A moving party must show more than merely being too busy '5 Busy schedules and travel plans cannot satisfy that standaid '6 Conflicting 0r hectic schedules do not constitute sufficiently good cause to justify o1 excuse a failure to comply with deadlines '7 Hanigan 5 Motion for Relief explains how Plaintiff‘s counsel was unde1 particular medical, financial, and emotional st1ess throughout 2017,l8 which the Court inte1prets as being perpetually busy dealing with peisonal matte1s These facts establish ongoing issues that pie date Plaintiff’s 9 See Def 5 Opp To Pl 5 Mot for Relief8 ‘0 See Id ‘1 See Molloy v Independence Blue Class 56 V 1 155 2012 WL 78942 at *17 '2 See Glasgow v Veolta Wale; N01 th Amellca Opelatmg Servs LLC 2011 WL 3471963 *3 (D VI Aug 5 2011) '3 See Gautler Jamesv Hovensa LLC 2012 WL 113777 *4 (DVI Jan 13 2012) 14 See Balshmgel v Legtslatzue 0fthe V1 0fthe US ST 11 CV 024 2014 VI LEXIS 99 *7 2014 WL 6604871 (VI Super Ct Nov 10 2014) 15See GRSDev Co v Janet! 45 V1211 216(VI Terr Ct 2003) 16 See Edwalds v Hess 011 Vngm Islands C01p 69 VI 136 141 (VI Super Ct June 28 2017) 17 See Chi Istophel v Gov Juan F Lms Hospltal & Medical Centel, 18 See Pl 5 Mot for Reliefl Jewel Harrlglm v Virgin Islands Department 0fPublIc Works, et a] Case No ST 2017 CV 00504 Memorandum Opinion and Order Page 5 of6 2020 VI Super 79U counsel s undertaking ofHarrigan 5 case in early 2017 and still leaves the Couit without claiity 01 sufficient explanation as to why Plaintiff’s counsel waited so long aftei judicially extended deadlines to file the Complaint 1114 FurthennOIe Plaintiff’s counsel acknowledges that when he scheduled Havel to South Carolina, he mistakenly noted the deadline to file the C omplaint was on Septembei 18, 2017, when it was actually Septembei 12, 2017 While the hurricanes were obviously not within the movant s c0nt101, Plaintiff’s counsel had control ove1 when to file the Complaint throughout 2017 but chose to wait until the deadline had passed It was also within the movant s c0nt101 t0 COirectly identify the deadline The C Quit finds that the leason for the delay and the movant s control of the leason f01 the delay weigh against a finding of excusable neglect 1115 Finally, as f01 whether the movant acted in good faith based on the facts in the wood, the Court cannot find that the Plaintiff engaged in any “outright behavior that would constitute bad faith ‘9 Overall the Court finds that the length of the delay, the leason 1°01 the delay, and what control the movant had weigh against finding that ‘ excusable neglect ’ should be applied as grounds f01 1elief t0 llanigan under Rule 60 Although the Court finds the prejudice to the Govemment to be minimal and does not find bad faith on the pan of llanigan, these factors ale easily outweighed by the leason f01 delay and length of delay factors 20 As the Third Circuit has noted piejudice t0 the opposing party, disruption of efficient judicial administration, and bad faith are frequently absent 2' Howevei the C ourt finds he1e the leason for the delay and the length of the delay to weigh against a finding of excusable neglect under Rule 60 For these leasons, the Court will deny Hanigan 5 Motion f01 Relief CONCLUSION 1116 The Court concludes that Harrigan is not entitled to relief under Rule 60 Therefore, Plaintiff‘s Motion for Relief From 2/8/2019 Memorandum Opinion and Order in This Matter filed on May 15, 2019 will be denied Accordingly, it is ORDERED that Plaintiff‘s Motion for Relief From 2/8/2019 Memorandum Opinion and Order in This Matter filed on May 15 2019 is DENIED and it is further [9 See Ragguette v Plemtel Wines & SpIIIts 691 F 3d 315 328 (3d Cir 2012) 20 See Baptiste v Rohn 2015WL 9460128 *5 (D V I Dec 23 2015) (weighing the four factors similarly) 2' See Ragguette v Premlel Wmes & Sputts 691 F 3d 315 331 (3d Cir 2012) Jewel Harrlgan v Virgin Islands Depurrment ofPubIlc Works, et a] Case No ST 2017 CV 00504 Memorandum Opinion and Orde1 Page 6 of6 2020 VI Super 79U ORDERED that a copy of this Memorandum Order shall be directed to counsel of record DATED 8/Z7[ZOZO :2 \ «m £2 , DENISE M F NCOIS Judge of the Superior Court of the Virgin Islands ATTEST TAMARA CHARLES Clerk of the Court BY W DO§NA D DONOVA JO Cou Clerk Supervisor Pg / 36/ 90