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DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX ║ SUNSHINE SHOPPING CENTER, INC., ║ ║ Sunshine, ║ ║ 1:15-cv-00041-WAL-EAH v. ║ ║ LG ELECTRONICS PANAMA, S.A., a Panama ║ corporation; ENGINEERING SYSTEMS & ║ SALES, INC., a Puerto Rico corporation d.b.a. ║ “ENSYSA,” ║ ║ Defendants. ║ _______________________________________________________ ║ TO: Edward L. Barry, Esq., Charlotte K. Perrell, Esq., Michael C. Quinn, Esq., James L. Hymes, III, Esq., Orlando Fernandez-Carmona, Esq. ORDER THIS MATTER comes before the Court on the Emergency Motion to Amend Discovery Schedule to Allow Expert Report and Testimony (the “Emergency Motion”), filed on March 21, 2025 by Attorney Orlando Fernandez-Carmona on behalf of Defendant Engineering Systems & Sales, Inc. (“ENSYSA”), Dkt. No. 201, and the Motion for Leave to File Expert Witness Report Out of Time, filed by ENSYSA on April 2, 2025, Dkt. No. 203. In both motions, ENSYSA asks the Court to modify the discovery schedule in this case to permit it to file its expert report out-of-time. Plaintiff Sunshine Shopping Center, Inc. (“Sunshine”) filed an opposition to the Emergency Motion on March 28, 2025. Dkt. No. 202. For the reasons that follow, the Court will deny the motions. Case: 1:15-cv-00041-WAL-EAH Document #: 212 Filed: 05/16/25 Page 1 of 14 Sunshine Shopping Center v. LG Electronics Panama, S.A. 1:15-cv-00041-WAL-EAH Order BACKGROUND I. Procedural History Sunshine, located on St. Croix, U.S. Virgin Islands, filed a breach of contract complaint in May 2015 against Defendants LG Electronics Panama, S.A. (“LG”), ENSYSA, and LG’s Sales Manager, Jacques Etienne,1 claiming that ENSYSA breached its contract with Sunshine by failing to fulfill its obligations to train and certify a Heating, Ventilation, and Air Conditioning (“HVAC”) contractor, to install HVAC equipment, to supervise the contractor in the installation process, and to perform other essential design and engineering work needed for installation. Dkt. No. 1. In its early stages, this case was subject to significant delays regarding the arbitrability of Sunshine’s claims against LG. See Dkt. Nos. 47, 48, 74, 86. The Magistrate Judge found that Sunshine’s claims against LG were arbitrable, but Sunshine objected, and the case was paused pending the District Judge’s ruling on the Magistrate Judge’s Order. ENSYSA was not a party to either the arbitration dispute or to a subsequent stay issued as to LG. See Dkt. No. 47. Nevertheless, for two years the case remained stagnant, even as to ENSYSA, apparently because Sunshine “hoped to avoid fragmented, duplicative discovery,” and therefore “deferred discovery involving ENSYSA pending resolution” of Sunshine’s objection to the Magistrate Judge’s Order compelling arbitration. Dkt. No. 60. However, in March 2017, while a ruling on Sunshine’s objection was still pending, Sunshine moved for a scheduling conference with ENSYSA. Id. The Court denied the motion 1 Mr. Etienne was voluntarily dismissed from the action. Dkt. No. 39. Case: 1:15-cv-00041-WAL-EAH Document #: 212 Filed: 05/16/25 Page 2 of 14 Sunshine Shopping Center v. LG Electronics Panama, S.A. 1:15-cv-00041-WAL-EAH Order on the basis that the parties had not met and conferred in accordance with Rule 26(f). Dkt. No. 61. In April 2017, Sunshine renewed its motion for a scheduling conference, noting that ENSYSA did not respond to Sunshine’s attempts to meet and confer. Dkt. No. 63. In May 2018, Sunshine again filed a motion for a scheduling conference, stating that ENSYSA had refused to cooperate or meet-and-confer in accordance with Rule 26(f), despite repeated outreach efforts by Sunshine. Dkt. No. 65. The Court granted Sunshine’s motion in September 2018 and held a scheduling conference. Dkt. No. 76. The Court entered a Scheduling Order in January 2019. Dkt. No. 94. That Scheduling Order set the close of expert discovery for November 2019. Id. On a joint motion from Sunshine and ENSYSA, the Court entered an Amended Scheduling Order setting a new expert discovery deadline of January 15, 2020. Dkt. No. 111. On March 2, 2020, ENSYSA filed a motion for partial summary judgment. Dkt. No. 125. After the District Judge denied ENSYSA’s summary judgment motion in September 2023, Dkt. No. 151, Sunshine moved for a status conference to discuss “adopting a modified scheduling order.” Dkt. No. 153. The Court held a status conference on May 13, 2024, where the parties explained that Sunshine no longer had any outstanding claims against LG because Sunshine and LG had entered arbitration and the arbitrator held in favor of LG on all claims. Dkt. No. 159. Thereafter, Sunshine and LG filed a “Joint Stipulation of Dismissal with Prejudice of All Claims” dismissing LG from the suit. Dkt. No. 180.2 2 Because ENSYSA has not joined in that stipulation, it is not self-executing under Rule 41. Case: 1:15-cv-00041-WAL-EAH Document #: 212 Filed: 05/16/25 Page 3 of 14 Sunshine Shopping Center v. LG Electronics Panama, S.A. 1:15-cv-00041-WAL-EAH Order The Court then held another Status Conference on August 13, 2024, during which Sunshine and ENSYSA explained that they had not conducted any discovery at all during the nine years the case was pending, except for one Rule 30(b)(6) deposition of ENSYSA that was taken for purposes of the arbitration between LG and Sunshine. Counsel for Sunshine explained that the parties imposed “something of a de facto stay” pending the arbitration. Therefore, the remaining parties—Sunshine and ENSYSA—requested that the Court enter a new Scheduling Order and allow them to finally litigate their claims. The Court ruled that it would enter a new Scheduling Order. On questioning from the Court, counsel for Sunshine stated that he anticipated it would hire one expert. Counsel for ENSYSA explained that it did not anticipate needing an expert, unless it determined it would need an expert to respond to Sunshine’s expert. To facilitate scheduling, Sunshine filed a proposed “Joint Trial Management Order,” Dkt. No. 184. The proposed order was the “product of collaboration” with counsel for ENSYSA. Id. The parties proposed, inter alia, the following terms with regard to expert deadlines: “The party having the burden of proof on an issue shall identify any experts, and produce the required materials related thereto, on or before January 27, 2025. The rebutting parties shall identify any experts, and produce the required materials related thereto, on or before March 13, 2025.” See Fed. R. Civ. P. 41(a)(1)(A)(ii). Accordingly, LG may only be dismissed as a party through an Order of the Court. See Fed. R. Civ. P. 41(a)(2). The Court has not yet accepted the Stipulation. Case: 1:15-cv-00041-WAL-EAH Document #: 212 Filed: 05/16/25 Page 4 of 14 Sunshine Shopping Center v. LG Electronics Panama, S.A. 1:15-cv-00041-WAL-EAH Order Shortly after the August 13 Status Conference, the Court entered a Scheduling Order that—at least with regard to expert disclosures—adopted almost the exact same language as was provided by the parties: “[t]he party having the burden of proof on an issue shall name its experts and serve copies of their opinions as provided in Fed. R. Civ. P. 26(a)(2) no later than January 27, 2025.” Dkt. No. 185. “The rebutting party shall name its experts and serve copies of their opinions as provided in Fed. R. Civ. P. 26(a)(2) no later than March 13, 2025.” Id. The Court also ordered the parties to complete expert discovery by April 30, 2025—the same date proposed by the parties. Id. In November 2024, the Court granted a Renewed Joint Motion to Amend the Scheduling Order, extending only the fact discovery deadline to April 30, 2025. Dkt. No. 192.3 In March 2025, Sunshine filed a motion for partial summary judgment on liability. Dkt. Nos. 197-199. Shortly thereafter, ENSYSA filed the instant Emergency Motion. Dkt. No. 201.4 3 The Court initially denied the parties’ “Joint Motion to Amend Scheduling Order” because they failed to demonstrate good cause for the requested extension. See Dkt. No. 190 (noting that, pursuant to Rule 16(b)(4), a scheduling order can only be modified for good cause and explaining that good cause is shown only where a movant explains “why more time is needed” and demonstrates that they were diligent in attempting to meet the original deadline). The parties’ subsequent filing sufficiently demonstrated good cause for the new fact discovery deadline. Dkt. No. 195. 4 ENSYSA initially filed its Emergency Motion on March 20, 2025, Dkt. No. 200, which the Court of Clerk flagged as incorrectly filed. ENSYSA refiled the motion on March 21, 2025. Dkt. No. 201. Therefore, the Court will deny as moot ENSYSA’s first Emergency Motion, Dkt. No. 200. Case: 1:15-cv-00041-WAL-EAH Document #: 212 Filed: 05/16/25 Page 5 of 14 Sunshine Shopping Center v. LG Electronics Panama, S.A. 1:15-cv-00041-WAL-EAH Order II. The Emergency Motion ENSYSA explains that, “[d]ue primarily to a wrong interpretation and unintended oversight” by its counsel, it failed to comply with the deadline to announce its expert witness and tender its expert report in this case. Id. ENSYSA’s counsel, Orlando Fernandez, Esq., takes full responsibility and will accept whatever sanctions the Court may impose; however, he asks that his client, ENSYSA, not be punished for his failure. Id. He asserts that the request is not being presented for any improper purpose or to cause unnecessary delay or prejudice to the Plaintiff because the deadline to take expert depositions is scheduled for April 30, 2025, which would provide the Plaintiff with more than a month to review the report and prepare to take the deposition.5 Id. at 2. He also notes that trial has not been scheduled and fact discovery is still ongoing. Id. Attorney Fernandez explains the cause of his confusion about the expert deadline: upon receipt of the August 13, 2024 Scheduling Order, Dkt. No. 185, he incorrectly noted January 27, 2025 as the due date for Plaintiff’s expert report and noted March 13, 2025 as the due date for Defendant’s expert reports. Dkt. No. 201. Thereafter, he acted in good faith under the belief that ENSYSA’s expert disclosures were due on March 13, and did not reach out to Colin Roberts, ENSYSA’s anticipated expert, until December 2024. Id. at 3. Mr. Roberts’s responses to Attorney Fernandez were often delayed. On March 14, 2025, after 5 The Court notes that this argument presumes that the Court would address the motion as soon as it was filed, without the benefit of complete briefing through a response and reply. Case: 1:15-cv-00041-WAL-EAH Document #: 212 Filed: 05/16/25 Page 6 of 14 Sunshine Shopping Center v. LG Electronics Panama, S.A. 1:15-cv-00041-WAL-EAH Order repeated outreach from Attorney Fernandez, Mr. Roberts said that he would send Attorney Fernandez information to get the retainer and report moving. Id. at 4. On March 17, 2025, Attorney Fernandez wrote to Plaintiff’s counsel, Attorney Ed Barry, to explain that the expert report would be late. Id. Attorney Barry indicated he was “‘strongly opposed to the belated attempt at an expert opinion, which was untimely.’” Id. at 4-5 (ostensibly quoting Attorney Barry). Only on March 17, after consulting with co-counsel Jim Hymes, Esq., did Attorney Fernandez realize that he had erred in assuming that only the “announcement of the expert was due on March 13, 2025.” Id at 5. Attorney Fernandez acknowledges that the deadline to produce the report has passed, but he reiterates that the delay would not prejudice the Plaintiff since discovery has not closed and the deadline to take expert depositions is not until April 30, 2025, which was then more than a month away. Id. He asserts that, if ENSYSA is prevented from producing its expert report, Sunshine will effectively be guaranteed a directed verdict on damages by default and not on the merits. Id. III. Sunshine’s Response On March 28, 2025, Sunshine filed an opposition to the Emergency Motion. Dkt. No. 202. It notes that ENSYSA seeks to disclose its report well beyond the January 27, 2025 deadline provided in the Court’s Scheduling Order. Id. at 2. Sunshine’s brief sets out the standard for modifying a scheduling order under Rule 16(b)(4). It also argues that the Court can consider Rule 37, which states that if a party fails to provide information or identify a Case: 1:15-cv-00041-WAL-EAH Document #: 212 Filed: 05/16/25 Page 7 of 14 Sunshine Shopping Center v. LG Electronics Panama, S.A. 1:15-cv-00041-WAL-EAH Order witness as required under Rule 26(a), the party may not use that witness at trial unless the failure was substantially justified or harmless. Id. at 5. It then focuses on the factors enumerated in Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 904 (3d Cir. 1977), “even though such criteria are intended to apply” when courts evaluate the propriety of Rule 37 sanctions. Id. at 5-6. Sunshine points out that, other than a “single, cryptic reference to Rule 16(b)(4),” ENSYSA’s motion is bereft of legal authority supporting its argument, contrary to LRCi 7.1(c)(1), which may be fatal. Id. at 6. For example, it fails to mention Rule 16(b)(4)’s established standards for relief from a scheduling order, which may be construed as a tacit admission that ENSYSA does not meet those standards. Id. Moreover, the mis-calendaring and/or misinterpreting of the terms of the Scheduling Order does not constitute good cause under the Rule, as ENSYSA has not demonstrated that a “‘more diligent pursuit was impossible.’” Id. at 7 (quoting Pedro v. Paragon Sys., Inc., No. 1:22-cv-00043, 2023 WL 6130722, at *2 (D.V.I. June 7, 2023)). ENSYSA’s counsel made assumptions regarding the Scheduling Order, rather than reading it. But those assumptions do not explain ENSYSA’s failure to timely submit its expert report, because even were ENSYSA’s assumptions correct, the report would have been due on March 13, 2025, which deadline ENSYSA also missed. Id. Additionally, Sunshine contends that ENSYSA has failed to show “substantial justification” for its delay under Rule 37(c)(1) and that the Pennypack factors further militate against the relief ENSYSA is requesting. Id. at 7-8. Case: 1:15-cv-00041-WAL-EAH Document #: 212 Filed: 05/16/25 Page 8 of 14 Sunshine Shopping Center v. LG Electronics Panama, S.A. 1:15-cv-00041-WAL-EAH Order IV. Motion for Leave ENSYSA did not file a reply. However, on April 2, 2025, it filed a Motion for Leave to File Expert Witness Report Out of Time, which seeks the same relief as its Emergency Motion. Dkt. No. 203. As argument, the motion for leave refers to the arguments raised in ENSYSA’s Emergency Motion. ENSYSA notes that Plaintiff’s counsel was served with the report the same day the motion for leave was filed. Id. ENSYSA argues that four weeks “is ample time to depose the expert and to discover all relevant facts pertaining to his report.” Id. On April 4, 2025, Sunshine filed a motion in limine to exclude Mr. Roberts’ report. See Dkt. No. 205. That motion is before the District Judge. DISCUSSION ENSYSA is effectively requesting that the Court modify its Scheduling Order to extend the deadline for ENSYSA to serve its expert report.6 “A schedule may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). That is all the Court need consider, despite Sunshine’s argument under Rule 37. See Hoffman v. Hammerhead Constr. LLC, No. 3:21-cv-46, 2023 WL 5346071, at *3-4 (D.V.I. Aug. 21, 2023) (rejecting consideration of Pennypack factors and relying on Rule 16(b)(4) good cause standard to determine whether it was appropriate to allow party to file expert report after close of expert 6 Despite ENSYSA’s insistence to the contrary, the Court finds it highly unlikely that granting this motion would not have upset the expert discovery deadline, even were the motion granted the day it was filed, given that Sunshine would potentially have had to retain its own expert, prepare a response, and prepare for and conduct any expert discovery in very short order. Case: 1:15-cv-00041-WAL-EAH Document #: 212 Filed: 05/16/25 Page 9 of 14 Sunshine Shopping Center v. LG Electronics Panama, S.A. 1:15-cv-00041-WAL-EAH Order disclosure deadline). In addition, if such a request to amend a deadline comes after the deadline has passed, Rule 6(b) provides: “When an act may or must be done within a specified time, the court may, for good cause, extend the deadline . . . on motion made after the time has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B) (emphasis added). Thus, in order to grant ENSYSA’s motion, the Court would first have to find good cause for ENSYSA’s failure to meet the deadline, and then, if good cause is shown, excusable neglect. The good cause inquiry under Rule 16(b)(4) “focuses on the moving party’s burden to show due diligence.” Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84 (3d Cir. 2010)). The good cause standard is not a low threshold. The stringency of the good cause standard is justified because scheduling orders are at the heart of case management and their utility would be severely impaired if they were disregarded without a specific showing of good cause. And in undertaking this analysis, the Court is afforded wide discretion in managing its docket and discovery. Tracey v. Fabian, No. 22-cv-189, 2024 WL 665926, at *11 (W.D. Pa. Feb. 16, 2024) (internal quotation marks, citations, and brackets omitted). This Court has held that to demonstrate diligence under Rule 16, a movant must show that “a more diligent pursuit [of the deadline] was impossible.” Pedro, 2023 WL 6130722, at *2 (internal brackets omitted). ENSYSA’s motion is devoid of any argument as to any such standard, aside from a passing reference to “good cause” on the first page of its Emergency Motion. See Dkt. No. 201 at 1. Moreover, ENSYSA does not explain whether its expert report was on an issue for which Case: 1:15-cv-00041-WAL-EAH Document #: 212 Filed: 05/16/25 Page 10 of 14 Sunshine Shopping Center v. LG Electronics Panama, S.A. 1:15-cv-00041-WAL-EAH Order ENSYSA or Sunshine bore the burden of proof. That is significant, because it determines which expert deadline ENSYSA was subject to.7 Nevertheless, the Court need not consider whether the report was due on January 27 or March 13, because ENSYSA was not diligent in meeting either deadline. According to its own timeline, ENSYSA did not begin communicating with an expert until December 20, 2024. Dkt. No. 201 at 3. It appears that counsel did not make a concerted effort to pin down his expert with a contract until January 16, 2025. Id. And it was not until around February 19, 2025 that Attorney Fernandez began reaching out to his expert more regularly. Id. at 3-4. Even when Attorney Fernandez began repeatedly pinging his expert and asking, “if he was receiving the messages,” it was not until March 17, 2025 that he finally wrote to Plaintiff’s counsel to explain that he would be missing the expert report deadline. Id. at 4. Accepting, arguendo, that ENSYSA’s report was due on March 13, the Court cannot find that ENSYSA exercised the requisite due diligence under Rule 16(b)(4) when it failed to even notify opposing counsel of its delay until days after the deadline had lapsed and then failed to notify the Court of the same for another four days. Indeed, ENSYSA’s own statements demonstrate a serious lack of diligence in obtaining and disclosing its expert report. It describes its failure to abide by the scheduling order as “a mistaken interpretation”; counsel notes that he felt that “there was no rush,” in 7 In the Emergency Motion, ENSYSA seems to intimate that its report should have been disclosed on January 27, 2025. Sunshine argues that the report was due on January 27, 2025. Case: 1:15-cv-00041-WAL-EAH Document #: 212 Filed: 05/16/25 Page 11 of 14 Sunshine Shopping Center v. LG Electronics Panama, S.A. 1:15-cv-00041-WAL-EAH Order securing his expert; and he explained to opposing counsel that the expert report “fell through the cracks as I forgot to follow up on it.” Dkt. No. 201. To be sure, the candor from Attorney Fernandez is appreciated, but courts routinely hold that an attorney’s “‘inadvertence or oversight is not good cause for the purposes of Rule 16.’” In re Tropicana Orange Juice Mktg. & Sales Pracs. Litig., No. 2:11-cv-07382, 2016 WL 8200509, at *3 (D.N.J. Dec. 19, 2016) (quoting AMW Material Testing, Inc. v. Town of Babylon, 215 F.R.D. 67, 71 (E.D.N.Y. 2003)); see also Great Lakes Ins. S.E. v. Sunshine Shopping Ctr., Inc., No. 1:19-cv-00039, 2020 WL 1159381, at *6 (D.V.I. Mar. 10, 2020) (“a party must show more than mere mistake or inadvertence . . . to demonstrate diligence when attempting to amend a scheduling order pursuant to Rule 16(b)(4)”). Furthermore, ENSYSA cannot be deemed diligent in actually producing the report. According to its motion for leave, it did not produce the report to Sunshine until April 2, 2025. Dkt. No. 203. That was just 28 days before the close of expert discovery, and more than two weeks after Attorney Fernandez realized he had missed the expert report disclosure deadline. Even if the Court immediately granted ENSYSA’s motion for leave, Sunshine would have been left with very little time to belatedly retain an expert and conduct depositions before the expert deposition deadline expired. Moreover, ENSYSA’s explanation for its failure to understand the Scheduling Order falls flat for two reasons. First, the Court’s terms with regard to expert disclosures in the Scheduling Order were adopted directly from the parties’ negotiated proposed trial Case: 1:15-cv-00041-WAL-EAH Document #: 212 Filed: 05/16/25 Page 12 of 14 Sunshine Shopping Center v. LG Electronics Panama, S.A. 1:15-cv-00041-WAL-EAH Order management order and therefore should have been understood by the parties better than anyone else. Second, as Sunshine points out, even if ENSYSA’s report was due on March 13, 2025, the Court fails to understand why it waited until March 20, 2025, a week after the lapsed deadline, to file its Emergency Motion. This is especially troubling because ENSYSA’s motion makes clear that the delay in producing its report was foreseeable well-ahead of the March 13 deadline, and thus it could have affirmatively acted to seek an extension from opposing counsel and the court before the deadline passed. This case has been pending for nearly a decade and the record is clear that Sunshine has been pressing for a resolution of its claims throughout the case’s pendency. Now, at the eleventh hour, on the third scheduling order, ENSYSA is seeking one more extension because of its own inadvertence in abiding by a scheduling order that it helped to draft. Because nothing about ENSYSA’s actions in this regard can be deemed “diligent,” and because ENSYSA certainly has not demonstrated that “a more diligent pursuit was impossible,” Pedro, 2023 WL 6130722, at *2 (internal brackets omitted), the Court must deny the motions. As a result, it need not reach the issue of excusable neglect. Accordingly, it is hereby ORDERED: 1. ENSYSA’s Emergency Motion to Amend Discovery Schedule to Allow Expert Report and Testimony, Dkt. No. 201, is DENIED. 2. ENSYSA’s Motion for Leave to File Expert Witness Report Out of Time, Dkt. No. 203, is DENIED. Case: 1:15-cv-00041-WAL-EAH Document #: 212 Filed: 05/16/25 Page 13 of 14 Sunshine Shopping Center v. LG Electronics Panama, S.A. 1:15-cv-00041-WAL-EAH Order 3. ENSYSA’s Emergency Motion to Amend Discovery Schedule to Allow Expert Report and Testimony, Dkt. No. 200, is DENIED AS MOOT. 4. The dates and deadlines set in the August 13, 2024 Scheduling Order, as amended by the Court’s subsequent Orders, Dkt. Nos. 185, 192, 194, continue to govern this case. ENTER: Dated: May 16, 2025 /s/ Emile A. Henderson III EMILE A. HENDERSON III U.S. MAGISTRATE JUDGE Case: 1:15-cv-00041-WAL-EAH Document #: 212 Filed: 05/16/25 Page 14 of 14