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SUPERIOR COURT OF THE VIRGIN ISLANDS MAGISTRATE DIVISION OF ST. THOMAS AND ST. JOHN ARTHUR NEWMAN, ) ) Plaintiff, ) ) vs. ) CASE NO. ST-13-SM-312 ) GEORGE NACHWALTER AND ) SIMONE NACHWALTER ) Defendants. ) ) MEMORANDUM OPINION Pending before the Court is pro se Plaintiff Arthur Newman’s July 12, 2013, Motion! requesting to vacate the Court’s July 11, 2013 Order. For the following reasons, Plaintiff's Motion will be denied. FACTUAL AND PROCEDURAL HISTORY On June 6, 2013, Plaintiff Arthur Newman filed a Complaint alleging Defendants George Nachwalter and Simone Nachwalter defaulted on a promissory note that was executed on September 20, 2012, for a “loan” apparently from Plaintiff to Defendants in the amount of Seven thousand five hundred dollars ($7,500.00), payable in full ninety (90) days from the date of the note’s execution. Plaintiff alleges Defendants owe a remaining balance of Four thousand eight hundred dollars ($4,800.00) on the note. While Plaintiff refers to himself in both the Complaint and promissory note as “trustee,” it is unclear to the Court whether Plaintiff alleges some form of a trustee-beneficiary relationship with ' Plaintiff submitted another Motion on July 29, 2013, which also seeks to vacate the Court’s July 11, 2013, Order. As such, the Court will consider the July 29, 2013, Motion as a supplement to Plaintiff's July 12, 2013, Motion. Newman v. Nachwalter @ Case No. ST-13-SM-312 Order, June 3, 2014 Defendants or some undisclosed entity. Further, the Court’s file does not contain proof of service of a summons and copy of the Complaint on Defendants. On July 10, 2013, the matter came on for trial and Plaintiff failed to appear. Accordingly, on July 11, 2013, the matter was dismissed without prejudice for lack of prosecution. Plaintiff now seeks to have the July 11, 2013, Order vacated because (1) he claims he simply forgot about the July 10, 2013, hearing;” (2) he has “practiced before this [C]ourt for the past five (5) years”? and never failed to appear; and (3) that he cannot afford to file his Complaint and serve Defendants for a second time.’ STANDARD Plaintiff does not propose any standard under which the Motion should be considered. However, considering pro se pleadings should be liberally construed® and Plaintiff is requesting the Court to vacate its July 11, 2013, Order, the Court will consider Plaintiff's Motion as a motion for reconsideration. “A motion for reconsideration is not to be used as a means to argue matters already argued and disposed of, nor is it an opportunity to request that the Court simply rethink a decision it has already made.”® Generally, the “function [and purpose] of the motion” dictates which rule should apply. 7 However, the Supreme Court of the Virgin Islands has also held in Ruiz v. Jung 2 plaintiff's Motion for the Court to Vacate its Order of Dismissal, July 12, 2013. 3 plaintiff's Motion for the Court to Vacate its Order of Dismissal, July 12, 2013. 4 Plaintiff's Supplemental Motion for the Court to Vacate its Order of Dismissal, July 29, 2013. > See Boyd-Richards v. de Jongh, 2012 WL 13682 (D.V.I. Jan. 4, 2012). 6 Valerino v. Holder, 2011 WL 3918085, *1 (D.V.1. Sept. 6, 201 1)(internal citations and quotations omitted). 7 rucan Corp., Inc. v. Robert L. Merwin & Co., Inc., 2008 WL 901492, *2 (V.I. 2008). Newman vy. Nachwalter ef al. Case No. ST-13-SM-312 Order, June 3, 2014 that “[i]f a motion for reconsideration [pursuant to Superior Court Rule 50]* is brought within ten [10] days of the order to be reconsidered, the motion is to be treated as a Fed. 9 R. Civ. P. 59(e) motion to alter or amend judgment. Otherwise, a motion for reconsideration filed after the ten (10) day period should be considered pursuant to Fed. R. Civ. P. 60(b).'° The purpose of a motion for reconsideration brought pursuant to Fed. R. Civ. P. 59(e) “is to correct manifest errors of law or fact or to present newly discovered evidence,”!! while Fed. R. Civ. P. 60(b) provides that On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (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 motion seeking relief pursuant to Fed. R. Civ. P. 60(b) must be filed “within a reasonable time--and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”"* ® Super. Ct. R. 50 provides that “[flor good cause shown, the court upon application and notice to the adverse party, may set aside an entry of default, judgment by default or judgment after trial or hearing. Rules 59 to 61, inclusive, of the Federal Rules of Civil Procedure shall govern such applications.” ° Ruiz v. Jung, 2009 WL 3568182,*3 (V.I. 2009); see Harris v. Garcia, 2010 WL 330331 (V.I. 2010). '° Ruiz, 2009 WL 3568182 at *3. "' 1d.; see In re Hartlage, 2010 WL 4961744, *4 (V.L). " See, e.g., Ruiz, 2009 WL 3568182 at *5 (discussing the definition of ‘mistake’ pursuant to Fed. R. Civ. P. 60(b)(1)). 8 Fed. R. Civ. P. 60(c)(1); see, e.g., Vessup v. Cochran, 38 V.1. 77, 79 (Terr. Ct. 1997). Newman y. Nachwalter eP&l. Case No. ST-13-SM-312 Order, June 3, 2014 ANALYSIS Plaintiff filed his Motion only one day after the July 11, 2013, Order, and thereby, in accordance with a strict interpretation of Ruiz, the motion should be considered pursuant to Fed. R. Civ. P. 59(e).'* However, Plaintiff argument that he simply “forgot” about the trial also suggests to the Court that Plaintiff argues that the Order should be 99 66s vacate due to “mistake,” “inadvertence,” or “excusable neglect” within the meaning of Fed. R. Civ. P. 60(b)(1). As a result, the Court will address the merits of Plaintiff's Motion under both rules. L Fed. R. Civ. P. 59(e) Plaintiff's motion fails under Fed. R. Civ. P. 59(e). Fed. R. Civ. P. 59(e) motion which specifically governs motions to alter or amend a judgment, “must rely on one of three grounds: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error of law or prevent manifest injustice.”'® Here, Plaintiff does not argue under any of these grounds.'° The July 11, 2013, Order simply dismissed the case with prejudice for Plaintiff's failure to prosecute the matter because he did not appear for trial. As a result, the Order does not constitute a judgment '* While the July 11, 2013, Order is a final judgment, it is not a default judgment or a judgment on the merits. Thus, the Court questions, without deciding, whether the seemingly arbitrary ten (10) day distinction between the applicability of Fed. R. Civ. P. 59(e) and Fed. R. Civ. P. 60(b) applies in this case. See, e.g., Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008) (“When the substance and label ofa post-judgment motion filed within 10 days of judgment are not in accord, district courts should evaluate it “based on the reasons expressed by the movant. . . . Neither the timing of the motion, nor its label (especially when drafted by a pro se litigant), is dispositive with respect to the appropriate characterization of the motion.”) (internal citations and quotations omitted). 'S Beachside Associates, LLC v. Fishman, et al., 53 V.1. 700, 715 (V.I. 2010). '6 See Harvey v. Christopher, 55 V.1. 565 (V.1. 2011) (finding that where a movant’s motion for reconsideration was not supported by any argument or authority, the Superior Court did not abuse its discretion in denying the movant’s motion without explaining its reasons for the denial). Newman y. Nachwalter et al. Case No. ST-13-SM-312 Order, June 3, 2014 on the merits and thereby, the various grounds for a Fed. R. Civ. P. 59(e) motion largely do not apply. Arguably, the only grounds for a Fed. R. Civ. P. 59(e) motion that may apply is that the Order has resulted in “manifest injustice.” Here, however, the Court finds that Plaintiff is not substantially prejudiced by the Court’s July 11, 2013, Order because the dismissal is without prejudice such that Plaintiff may re-file the matter.'’ While Plaintiff argues that he does not have the necessary funds to serve Defendants, he has apparently not incurred that expense to date, because no proof of service appears in the Court’s file. If Plaintiff chooses to re-file, he is not unduly prejudiced by having to serve Defendants in accordance with the Rules of the Superior Court and Federal Rules of Civil Procedure. As a result, Plaintiff's Motion will be denied because Plaintiff does not present any persuasive argument under the considerations of Fed. R. Civ. P. 59(e). Il. Fed. R. Civ. P. 60(b)(1) Assuming arguendo Fed. R. Civ. P. 60(b)(1) applies, Plaintiffs Motion also fails under this rule. '* While Fed. R. Civ. P. 60(b)(1) provides that a Court may provide "7 It appears Plaintiff is seeking relief on a contract theory, which carries a six (6) year statute of limitations in the Virgin Islands. 5 V.I.C. § 31. As the alleged breach occurred on December 20, 2012, Plaintiff has plenty of time to re-file a new Complaint in the matter. See cf Watts v. Blake~-Coleman, 2013 WL 3338588, at *2 (D.V.I. 2013) (noting that a Poulis factor finding is necessary in cases which result in dismissals with prejudice for failure to prosecute). Thus, unlike Ellingsworth v. Chrysler where the U.S. Court of Appeals for the Seventh Circuit found that an entry of default judgment against the moving party for failing to appear at trial due to a misunderstanding about the trial date was an abuse of discretion, here, dismissal without prejudice is not a harsh result. See 665 F.2d 180, 185 (7th Cir. 1981) (“{I]t is appropriate that Rule 60(b)(1) be liberally applied in the context of default judgments, especially where those judgments result from honest mistakes rather than willful misconduct, carelessness or negligence.”) 18 See Newland Moran Real Estate v. Green Cay, Properties, Inc., 40 V.1. 211, 216 (D.V.I. 1999)(“[N]ot[ing] that it is only necessary to fall back on Rule 60(b)(6) where the reason for relief is not covered by any of the other provisions of 60(b) and the movant can establish exceptional circumstances which warrant extraordinary relief.”) Newman v. Nachwalter et al. Case No. ST-13-SM-312 Order, June 3, 2014 relief from an order due to “mistake, inadvertence, . . . or excusable neglect,”"” “mere carelessness is not sufficient to warrant disturbing a judgment.””” However, where a party has provided a “good excuse for the failure to appear,” supported by the facts,”! courts have often exercised their discretion to vacate the dismissal of the action.” To determine whether a moving party has demonstrated excusable neglect, the Court evaluates, in the totality of the circumstances, “(1) whether the default was willful; (2) whether the opposing party has a meritorious defense; and (3) the level of prejudice that may occur to the non-defaulting party.”” For instance, in Vessup v. Cochran, the Court found that an attorney was “irresponsible and derelict” when, after another attorney appeared at a pretrial conference on his behalf, he failed in the following two-week period to discover the trial date established at the pretrial conference, and, consequently, the attorney and his client both missed the trial.* Nonetheless, the Court still found “excusable neglect” existed in the totality of the circumstances because the attorney’s conduct was not willful and the opposing party had also “abandoned her initial interest in " Fed. R. Civ. P. 60(b)(1). 2 Rogers v. Tonn Motor Corp., 26 V.1. 51, 54 (Terr. Ct. 1990) (finding that an attorney’s failure to inform himself of the trial date does not constitute excusable neglect); but see Castro v. Bd. of Educ. of City of Chicago, 214 F.3d 932, 934 (7th Cir. 2000) (finding that while “[a]ttorney carelessness can constitute excusable neglect,” relief from a final judgment or order is pursuant to the discretion of the Court, and thereby an appellate review of any such decision is extremely deferential). 21 35B C.J,S. Federal Civil Procedure § 1258 (“It is implicit in this provision of the Rule that some attempt be made by the movant to show why he or she was justified in failing to avoid the mistake or inadvertence, and generally relief will be granted only if it is shown that the fault was excusable. . . . and the real and practical grounds for the excuse must be factually shown.”) * See, e.g., Vessup v. Cochran, 38 V.1. 77, 80 (Terr. Ct. 1997). 23 Id at 82; see also Davila-Alvarez v. Escuela de Medicina Universidad Cent. del Caribe, 257 F.3d 58, 64 (1st Cir. 2001) (“Our evaluation of what constitutes excusable neglect is an equitable determination, taking into account the entire facts and circumstances surrounding the party's omission, including factors such as the danger of prejudice to the non-movant, the length of the delay, the reason for the delay, and whether the movant acted in good faith.”) * Vessup, 38 V.I at 80-82. Newman v. Nachwalter et al. Case No. ST-13-SM-312 Order, June 3, 2014 defending the suit” and “failed to appear for the scheduled trial.”** The present case is distinguishable from the facts underlying the Vessup decision. Unlike Vessup where the attorney was not aware of the trial date, here, Plaintiff acknowledges that he was aware of the trial date, but simply “forgot” to put it in his calendar. While the Court finds that Plaintiff's conduct was not necessarily willful and he promptly notified the Court of his error the day after its occurrence, the Court finds Plaintiff conduct amounts to mere carelessness. Moreover, in Vessup the opposing party clearly had notice of the action because she had made prior appearances before the Court. Here, it is unclear to the Court whether proper notice was served on Defendants because no proof of service of the Complaint has been filed by Plaintiff. Defendants have not made any appearance before the Court and also failed to appear for trial. Thus, while Plaintiff indicates in his July 29, 2013, Motion that at least one of Defendants” “has referred his file to a Miami attorney who can convey to the Nachwalters the new hearing date,” Plaintiff does not identify that attorney or support this allegation through affidavit or other competent evidence, so it is unclear to the Court the degree, if any, to which Defendants have knowledge of this case. Thus, the Court is unable to determine the reasons underlying Defendants’ failure to appear at trial and failure to assert any meritorious defense. In fact, Plaintiff's failure to provide proof of service pursuant to Fed. R. Civ. P. 4(m) brings into question whether the Court even holds jurisdiction over this matter. Further, the Court has already held that Plaintiff is not 2s Id. 6 It is unclear whether Plaintiff is referring to Simone Nachwalter or George Nachwalter because he simply refers to the individual as “Mr. Nachwalter,” although the preceding paragraph suggests Plaintiff may be referring to George Nachwalter. Newman v. Nachwalter ® Case No. ST-13-SM-312 Order, June 3, 2014 substantially prejudiced by the Court’s July 11, 2013, Order because the dismissal is without prejudice such that Plaintiff may re-file the matter. Accordingly, Plaintiff's Motion to vacate the July 11, 2013, Order shall be denied. While this motion is resolved on the grounds stated, the Court is compelled, sua sponte, to address another serious matter raised by Plaintiff's Motion. Specifically, Plaintiff claims in his July 12, 2013, Motion that he “has practiced before the [C]ourt for the past five (5) years.””” The Court has previously held in Gil Ron, et al. v. Diamond World et al.” that Newman may not act as a “personal representative” on behalf of a client in the Magistrate Division of the Superior Court of the Virgin Islands when he lacks an ongoing relationship with the principal such that he does not have the personal knowledge necessary for him to present admissible evidence before the Court. Further, the procedures employed by Plaintiff appear to constitute the unauthorized practice of law because Newman purportedly provides his clients with legal advice and makes representations on their behalf before the Court. Newman is not an attorney licensed to practice in the Virgin Islands. Thus, under no circumstance may Plaintiff “practice” before the Court, as Plaintiff suggests in his July 12, 2013, Motion.” Further, while it appears that Plaintiff is appearing pro se on behalf of his own interests in this matter, if the Court finds that Plaintiff may be attempting to circumvent the Orders of this Court by 3 creating another scheme where he is de facfo acting as a legal or “personal representative’ 7’ Plaintiff's Motion for the Court to Vacate its Order of Dismissal, July 12, 2013. * Super. Ct. Consolidated Case Nos. ST-11-SM-380, ST-1 1-SM-381, ST-1 1-SM-385, ST-11-SM-391 (Feb. 7, 2012). See also Newman v. McKay, 2013 WL 3155339 (V.I.Super. Ct. 2013). *? See 4 V.L.C. § 112(d)(“Neither party may be represented by counsel and parties shall in all cases appear in person except for corporate parties, associations and partnerships which may appear by a personal representative.”) Newman y. Nachwalter 2 Case No. ST-13-SM-312 Order, June 3, 2014 of a client before the Court, the Court will consider the imposition of sanctions including, but not limited to, striking of pleadings and holding Plaintiff in contempt of court, as well as referral of the matter to the Virgin Islands Bar Association Committee on Unauthorized Practice of Law.*° An Order consistent with this Memorandum Opinion shall issue. Dated: June 5’, 2014 SO HON. MICHAEL C. DUNSTON ATTEST: Estrella H. George JUDGE OF THE SUPERIOR COURT “* g Clerk of Court / / OF THE VIRGIN ISLANDS Donna D. Donovan Court Clerk Supervisor @ ZB , 20( ” See 4 V.L.C. § 243 (“Every court shall have power .. . [t]o compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in all actions or proceedings pending therein. . .”); 4 V.LC. § 244 (“Any person who willfully violates, neglects or refuses to observe or perform any lawful order of a court shall be guilty of contempt of court and upon being found guilty of such contempt may be punished as provided by law.”); Molloy v. Independence Blue Cross, 2012 WL 78942, FN11 (V.L. Jan. 9, 2012) (“The failure to follow a Superior Court order can be the grounds for sanctions against the party or its attorney.”)