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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN AMJAD MUHYEDDIN ) Case No ST 2018 CV 00751 ) Plaintiff ) vs ) ) ACTION FOR BREACH OF JARRAH ELGADI and ) PARTNERSHIP ACCOUNTING ELGADI ENTERPRISE LLC ) DECLARATORY RELIEF ) ACTION FOR PRELIMINARY ) AND PERMANENT INJUNCITON Defendants ) ) Cite as 2022 VI Super 96U MEMORANDUM OPINION 111 THIS MATTER is before the Court on a Motion to Dismiss for Failure to Cooperate in Discovery filed by Defendants Janah Elgadi ( Elgadi ) and Elgadi Enterprises LLC (together Defendants ) on July 30 2021 H For the reasons herein the Court will deny Defendants motion, but will award attomey’s fees to Defendants for filing the instant motion and order Plaintiff ' Defendant: attached ten (10) Exhibiis lo Iheir mulion, as follows Exhibii A, email exchange between parties counsel in November 2019 and January 2020 regarding Rule 26 Disclosures; Exhibit B, Defendams notice memes of Rule 26 Disclosures dated November 22 2019 Exhibit C Plaintiff’s Voluntary Disclosures dated December 4 2019 and the three atlachments thereto (warranty deed affidavit of Hassan Rahman and affidavit of Muatem Muslafa) Exhibit D Defendants request for produclion dated May 4 2021 Exhibit E Defendants first set Of interrogatories dated May4 2021 Exhibit F later from Defendants counsel to Plaintiffs counsel titled Notice of Failure (0 Respond 10 whiten Diacovery and Demand in Meet and Confer Pursuant to V I R Civ P 37 and 37 1 dated June 30 2021 Exhibit G email dated July 7 2021 from Defendants counsel lo Plaintiff‘s counsel notifying Plaintiff‘s e0un<el oflhe overdue discoVery mpunses and requesting explanation for their delay a: well as indicating a desire to schedule a depofimon; Exhibit 1-1, Email exchange dated July 8, 2021 between pames’ counsel, in which Plaintiffs counsel requefls Defendams counsel provide the request for production and imerrogatcries again Exhibit I, emaiI exchange between panies counsel dated July 25, stating Plaimift‘s intention to gel the discovery responses to Defendams Counsel and allempllng [a plan a deposiiion chuhyeddin Exhibit .1 email from Defendants counsel on July 28 2021 outlining the timeline of events and reiterating the overdue nature of the discovery responses and stating counsel would file a monon to compel the £0110“ mg day ifshe had no: received the responses 2 Plaintiff filed his untimely Opposlllon 0n Auguu 31 2021 and atmched Ihereto was one exhibit After 1he ccun accepted that late filing Defendants filed me” reply on March 3 2022 AmjadMuhyeddm \ Jmmh Elgmu am] 51ng Enterprise LLC Case No ST 2018 CV 00751 Cite as 2022 VI Super 96U Memorandum Opinion to respond to the outstanding discovery requests within fifteen (15) days, failing which the Court will bar introduction of such evidence at trial FACTUAL AND PROCEDURAL BACKGROUND 112 In 2018 Plaintiff Amjad Muhyeddin ( Muhyeddin or Plaintiff) filed his complaint against Defendants alleging that on or about August 2, 2008 Muhyeddin and Elgadi orally agreed to enter into a partnership for profit and agreed to Jointly purchase real property known as N0 463 & 46Bd Estate Thomas N0 6A New Quarter St Thomas Virgin Islands ( the Property ) from Muhyeddin s brother Majdi Muhyeddin ( Majdi ) and his corporation, Dehwani Inc At that time a gas station, convenience store, and commercial rental units were located on the Property Plaintiff further alleges that Plaintiff and Detendant Elgadi each contributed three hundred fifty thousand dollars ($350 000 00) to purchase the Property and they agreed that Elgadi would operate the gas station and convenience store as a partnership asset for five (5) years and Elgadi would pay Muhyeddin a monthly sum of $23 000 as Muhyeddin 3 initial investment and a portion of the net profits and then Muhyeddin would take over operations 3 The basis of Plaintiff‘s complaint is that since 2010, Elgadi has operated the gas station and convenience store but has refused to pay Muhyeddin the agreed amount for his investment nor provide any accounting of the finances of the partnership that Elgadi has refused to allow Muhyeddin to have equal participation in the business and Elgadi even forced Muhyeddin out of the store when he Visited in the store in 2017 Muhyeddin also claims Elgadi is living in and using one ofthe rental units on the Property as his personal residence without Muhyeddin s consent Muhyeddin claims he has 3 The payment terms described in the Complaint are not precise AmjadMuhyezldm 1 Jarrah EIgadl and EIglzdl Enmypuse LLC Case No ST 2018 CV 00751 Cite as 2022 VI Super 9611 Memorandum Opinion Pa e 3 of18 made numerous demands for an accounting and for his share of net profits but Eigadi has not complied with the 2008 agreement 113 Plaintiff‘s complaint includes a demand for an accounting a demand for profits and return of investment, demand for participation, misuse of pannership property, and injunctive relief In their answer and counterclaims, Defendants deny the existence of a pannership deny that MUhyeddin is entitled to any profits from the businesses at the Property and assert there is no privity between the parties Elgadi’s counterclaim alleges he was a (:0 owner ofthe Property, that in 2001 his brother Majdi separated the Property and operated the gas station and convenience store and commercial building in partnership with Elgadi but the parties later changed their agreement and Elgadi became the sole owner of the Property and Elgadi saved the Property from foreclosure without any contribution from Muhyeddin Elgadi's counterelaims include four Counts partition quiet title contribution and declaratory relief 114 Since the onset of this litigation, very little progress has been made The parties have both served their Rule 26 initial disclosures but every other attempt to move the case forward has failed The Defendants instant motion claims Plaintiff has failed to prosecute and such failure warrants dismissal of Plaintiff‘s complaint and entry ofjudgment on two of Defendants counterclaims {[5 The relevant timeline of events related to the instant mation is as follows 1 On November 15 2018, PIaintiff filed a five count complaint, alleging he and Elgadi are business partners and joint owners of the Property, on which Elgadi continues to operate a gas station and convenience store 2 On January 14, 2019, Defendants filed an answer and counterclaims tor partition, quiet title, contribution, and declaratory relief 3 On February 1 2019 Plaintiff filed an answer to Defendants’ counterclaims 4 On August 22 2019 this Court ordered the panies to conduct a scheduling conference by September 3 2019 and submit a discovery plan to the Court by September 17 2019 Am/(zd Muhyuldm L Jarmh Elgadz and Elgadt Enterprlae LLC Case No ST 2018 CV 00751 Cite as 2022 V1 Super 96U Memorandum Oplmon 5 On September 17 2019 the parties filed a proposed scheduling plan and the Court approved it the next day 6 On November 22 2019 Defendants served initial disclosures 7 On December 6 2019, Plaintiff served initial disclosures 8 On January 16 2020 the parties filed a Joint motion to amend the discovery plan The Court approved the plan on January 22 2020 1n peninent part the plan ordered that fact discovery be completed by May 30 2020 written discovery be completed by March 31 2020 fact depositions be completed by May 1 2020 and mediation commence no later than May 15 2020 9 On September 16 2020 the Court directed the parties to provide the status of the case and whether the matter had been mediated Plaintiff responded on October 27 2020, stating that due to the Covid 19 pandemic and an injury to Plaintiffs counsel that required surgery and rehabilitation the mediation had not yet occurred 10 On November 23 2020 the Court extended the mediation deadline to December 31 2020 and further ordered that the parties file an amended scheduling plan if the matter was not resolved by January 15 2021 1 1 On December 28 2020 the parties met to mediate the matter but after the initial conference they recessed for further discussions The mediation report states the mediator would file his final report by January 31 2021 12 On Febmary 26 2021 the mediator filed his report stating the parties were at total impasse and require Court action 13 On May 4, 2021, the Court held a status conference The parties disagreed whether more mediation and more discovery were necessary But the Court ordered the parties to meet and confer to develop a new scheduling plan 14 Also on May 4 2021, Defendants served their first set of intenogatories and request for praduction of documents on Plaintiff ‘ 15 On May 12 2021 the parties filed a new stipulated scheduling plan with the Cuurt The Court approved it on May 17 2021 In pertinent part the plan stated fact discovery shall be completed by July 30 2021 written discovery served by May 20 2021 and fact depositions completed by July 30 2021 The Court also scheduled a status conference for February 22 2022 Am/ad Muhyeddm v Jarruh EIgadl and Elgar]; Enterprzse LLC Case No ST 2018 CV 00751 Cite as 2022 VI Super 9611 Memorandum Opinion 16 On July 30, 2021, Defendants filed the instant motion to dismiss, claiming Plaintifffailed to cooperate in discovery 116 This chronology shows that Defendants propounded the interrogatories and request for production of documents to Plaintiff on May 4, 2021 As 0fthe date Defendants filed the instant motion to dismiss Plaintiff had not filed responses to the discovery requests Defendants argue Plaintiff has allowed this case to languish for years with no explanation for the failure to cooperate in discovery and Plaintiff’s “complete and inexcusable failure ’ to cooperate in discovery 01' to take any steps to prosecute the matter should result in dismissal of plaintiff‘s complaint and entry of judgment on Defendants counterclaims Defendants argue they were the only ones endeavoring to push the case forward, and, despite such etforts, Plaintiff has failed to adhere to three (3) scheduling orders, and each time Defendants took the lead in revising the scheduling plans Defendants urge that dismissal of plaintiff‘s complaint is the only appropn'ate remedy Defendants also ask for judgment on two of their counterclaims A 117 In response Plaintiff acknowledges his responses to Defendants interrogatories and request for production are late but notes Plaintiff‘s counsel has been in contact with his client Muhyeddm, to obtain responses and return them to Defendants That response was filed on August 31 2021 Plaintiff states he could not provide a date certain for completion of the interrogatories since counsel was relying upon Muhyeddin to complete them and it was made more difficult by Muhyeddin 3 current residence being in North Carolina 5 4 Because Defendants provide “a argument or reasoning to support their request for defaultjudgment 0n Counts Two and Four of their counterclaim the Court will not address that request and will deny that portion of Defendants motion 5 In addition Plaintiff argues that Defendants had two changes in counsel and did not settle on current counsel until November 7 2019 However the change in defense counsel does not Justify any delay on the part of Plamlz/fsmee he had not yel even filed his Rule 26 initial disclosures Am/ad Muhyeddm I Jarmh Eighth (Ind Elgadz Enterprzse LLC Case No ST 2018 CV 00751 Cite as 2022 VI Super96U Memorandum Opinion 118 The Court notes that in the period of more than a year since Plaintiff filed his opposition to the motion to dismiss, Plaintiff still has not filed responses to Defendants’ discovery requests LEGAL STANDARD 19 Discovery issues such as failure to attend one s own deposition serve answers to interrogatories, or respond to a request for inspection, are addressed in V I R Civ P 37(d) The Court may order sanctions ifa party after being properly served with interrogatories fails to serve its answers objections 0r mitten response V I R Civ P 37(d)(1)(A)(ii) That rule refers to V I R Civ P 37(b)(2)(A)(i) (Vi), which details the sanctions available for such proceduraI failures V I R Civ P 37(d)(3) Such sanctions include (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action as the prevailing party claims (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) stnking pleadings in whole or in pan? (iv) staying further proceedings until the order is obeyed (v) dismissing the action or proceeding in whole or in part (vi) rendering a default judgment against the disobedient patty V I R Civ P 37(b)(2)(A)(i) (vi) 1110 Involuntary dismissal described in V I R Civ P 41(b) provides that if the pIaintifffails to prosecute or to comply with these rules or a court order a defendant may move to dismiss the action or any claim against it ’ The Virgin Islands Supreme Court adopted a set of six factors, which the Court must balance to determine whether dismissal is appropriate Halltday v Footlocker Specialty Inc 53 V I 505 (V I 2010) (adopting the standard established by the Third Circuit in Faults v State Farm Fire and Cas Co 747 F 2d 863 (3d Cir 1984)) The factors to be balanced are (1) the extent of the party 5 personal responsibility (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery (3) a history of Amjad Muhted‘lm I Jarrah Elgndt 11ml Elma Enmpme LLC Case No ST 2018 CV 00751 Cue as 2022 VI Super96U Memorandum Opinion Page 7 of18 dilatoriness; (4) whether the conduct ofthe patty or the attomey was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal which entaiIs analysis ofalternative sanctions; and (6) the meritoriousness of the claim or defense 1d at 510 (citing Pauli: 747 F 2d at 868) The Virgin Islands Supreme Court has instmcted that [a]1though a trial court is not required to find that all the factors weigh in favor of dismissal to warrant dismissal of the claim, the court must explicitly consider all six factors, balance them, and make express findings Battzste v Auction com 2022 V1 SUPER 65 1] 16 (quoting Malloy 1 Independent Blue Cross 56 V I 155 186 (V I 2012)) In other words the extreme sanction of dismissal is reserved for instances in which a trial court makes appropriate findings to all six factors and without them the drastic sanction of dismissal cannot be warranted Id (citing Malloy, 56 V1 at 186) (internal quotations omitted) ANALYSIS Though some of the Hallzday factors weigh in favor of dismissal, Defendants’ motion to dismiss will be denied because less extreme sanctions are available 1 Extent of PlaintifPs personal responsibility for the delay 1111 The first Halltday factor focuses on the party's conduct [and examines] whether the party was responsible for the actions or inactions that led to dismissal of the case " VI Tax: Assoc \ V.[ Port Auth 67 VI 643 693 694 (V1 2017) (quoting Watts v Two Plus Two Inc 54 V1 286 300 (V I 2010)) This inquiry differentiates the acts ofa party from the acts 0ftheir counsel 101 (citing Molloy L Independence Blue Cross 56 V1 155 190 (V I 2012) Poulxs 747 F 2d at 868) 1112 Plaintiff argues Defendants have made no showing that Muhyeddin himself is at fault for the delay rather than Plaintiff‘s counsel In their reply Defendants note Plaintiff‘s opposition contains some inconsistencies Plaintiffs explanation of the delays being due to the logistical Am/ad Muhtcddm v Jarret}: EIgazII and Elgadi Enterprise LLC Case No ST 2018 CV 00751 Cite as 2022 V1 Super 96U Memorandum Opinion difficulties ofMuhyeddin living in North Carolina does not align with Plaintiff‘s statement that he has very few or no supporting documents to provide 6 Accordingly Defendants state regardless of Muhyeddin 5 location, there was no explanation for the lengthy delay particularly if there is nothing of substance for Muhyeddin to collect and provide to Defendants 1113 In this matter, there is no demonstrated indication whether it is Muhyeddin or his counsel who is responsible far the subject delay although counsel stated months ago he is awaiting responses from Muhyeddin Plaintiff‘s counsel notes he experienced a significant injury during the summer of 2020, for which he required surgery and rehabilitation, which contributed to the delay However, Defendants did not send their interrogatories and requests for production of documents until May 4 2021 Thus Plaintiff‘s counsel’s injury in 2020 may have contributed to not moving the matter forward but it had no impact on the delay in responding to discovery requests propounded in May 2021 Both parties provided the Court with a copy of Plaintiff‘s email to Defendants dated July 8 2021 asking for a duplicate copy of the discovery requests stating counsel had ‘misplaced the documents 7 By the time the Plaintiff requested a duplicate set of documents his responses were already late Losing the documents indicates lack of attention to this matter by Plaintiff‘s counsel Further in his opposition Plaintiff seems to allude that Muhyeddin himself was delinquent in responding to the interrogatories and further blames the delay on the distance between counsel and his client However with the development of technology the frequent use of e mail Zoom free long distance Calling and other technologies the Court does not find the distance to be a valid reason for delay 3 Even if the distance between ‘5 It is plauslble that Plaintiff‘s Counsel is aware his client has few documents to support hIs Claim but that Muhyeddm himseIfmust draft responses to the intermgatones for counsel 5 review 7 Defendant tendered a duplicate copy om“: discovery requests within minutes of Plaintiff‘s request x On July 26 2021 Plaintiff told Defendants by email we are working diligently to get you the responses by Tuesday See Exhibits H and I attached to Defendants motion Amladi’l/Iuhyeddm v Jurmh Elgadt (Md Elgadi Enigma: LLC Case No ST 2018 CV 00751 Cite as 2022 V1 Super 96U Memorandum Oplnion counsel and plaintiffdid contribute to a short delay it certainly cannut account for a delay of more than one year Therefore, this factor weighs in favor of dismissal 2 Prejudice to the opposing party $114 Prejudice t0 the opposing party involves either increased expense to the opposing party arising from the extra costs associated with filings responding to dilatory behavior or increased difficulty in the opposing parties ability to present or defend their c1aim(s) due to the improper behavior Molloy » Independence Blue Crass 56 VI 155 189 (V1 2012) (citing Faults 747 F 2d at 868 Remy I Fwd Motor Ca 41 VI 141 152 53 (VI Super Ct 2006)) Prejudice is inevitable with undue delay which could cause memories to fade and perceptions of events to be altered Encarnacum \ Govtafthe VI No SX 15 CV 533 2018 VI LEXIS 73 at *5 6 (VI Super Ct 2018) (quuting Watts L Two Plus The Inc 54 VI 286 292 (V1 2010) (internal quotations omitted» Prejudice also includes the burden imposed by impeding a party 5 ability to prepare effectively a full and complete trial strategy Watts, 54 VI at 291 (quoting Emcee v Klaus 538 F 3d 252 259 60 (3d Cir 2008)) $115 Defendants ncte Plaintiff‘s claims are based on events that allegedly occurred as many as twenty (20) years ago such that memories are stale witnesses have died and documents are lost Further, Defendants note the lack of any documents or responses from Plaintiff demonstrates he likely lacks such evidence In his opposition Plaintiff contends the delayed response has not caused prejudice to the Defendants at a level requiring dismissal Plaintiff notes there is no indication Defendants incurred costs burdens or losses from any effort to obtain an order to compel Plaintiff comply with discovery Plaintiffclaims his delay was less than ninety (90) days, significantly less than the years long delays in which courts have found prejudice To the contrary, in their reply Defendants reiterate that the underlying dispute within this matter surrounds an Amy“! Muhyrdzlm » Jarrah Elgadl and Elm; Entkrprme LLC Case No ST 2018 CV 00751 Cite as 2022 VI Super96U Memorandum Opinion alleged oral agreement between the parties and Defendants alleged refusal to pay Plaintiff since 2010 Defendants note the failure to produce any documentation appears to display that Plaintiff has no documents and plans to rely entirely on witness testimony about their memnry of conversations taking place fourteen (14) years ago Additionally the Defendants note the Plaintiff‘s key witness Muhyeddin s brother Majdi passed away in 2011 Without any infomation provided by Plaintiffwith respeCt to the alleged oral agreement and previous demands for funds, Defendants argue they had no way to prepare for depositions or to moxe the matter forward Defendants further note they have raised statute of limitatiuns and laches as affirmative defenses {116 The subject motion was filed on July 30 2021 the same day that fact discovery and fact depositions were due to be completed pursuant to the then effective scheduling plan The Court is unpersuaded that Defendants were severely prejudiced at the time they filed the instant motion since the discovery responses were then six weeks overdue However, given this was the second time the Plaintiff failed to adhere to a scheduling plan, and there was he scheduled date to depose Muhyeddin or any of Plaintiff‘s other witnesses (who he claims will provide the majority of the pertinent evidence, given the lack of documentary evidence), it is reasonable that Defendants sought to take further action to move the matter along or have it dismissed And now those discovery responses are more than one year late Defendants have been responsible for the minimal progress made, and upon reviewing the exhibits both parties attached to the instant motion and opposition it is apparent Defendants made repeated efforts to elicit the necessary discovery and schedule depositions to move the matter {onward with little to no cooperation from Plaintiff And certainly, there is no indication that Plaintiffinitiated communication or efforts to move the matter along The Court notes the costs associated with the additional effort taken to keep the parties on Amati Muhyeddm v Jamzh EIngt amt Elguzl'l Enterprise LLC Case No ST 2018 CV 00751 Cue as 2022 VI Super96U Memorandum Opinion task is likely significant including all the communication from Defendants as well as the hours taken to write and file the instant motion and reply Additionally though Defendants filed their reply in this matter in March 2022 there has still been no profter of discovery from the Plaintiff or any explanation as to his ongoing delay as of the date of this opinion Even if there are few documents to support Plaintiff‘s claims and few documents to produce, that void does not excuse the duty to file responses to the interrogatories and even a formal response to the request for documents so that Defendants may be apprised of Plaintiff‘s evidence {117 The Court finds very puzzling Plaintiff‘s continuing delay with no apparent explanation However even Defendants did not propound discovery requests until May 4, 2021 And they filed counterclaims so Defendants have their independent duty to prosecute their counterelaims While the Court detects some prejudice to the Defendants based on the costs and efforts fruitlessly expended to move the matter forward the Court does not find the prejudice to be so strong as to trigger dismissal Accordingly this factor weighs slightly in favor of dismissal 3 Plaintiff’s history of dilaturiness $118 Conduct that merely occurs once or twice does not demonstrate a history of dilaton‘ness Encamacmn 2018 V I LEXIS 73 at *7 (citing Brtscoe 538 F 3d at 261) Rather it is [e]xtensive or repeated delay or delinquency [that] constitutes a history ofdilatonness such as consistent non response to interrogatories, or consistent tardiness in complying with court orders ’ Id (quoting Adam v TVS ofNJ Brewery Employee: Pension Trust Fund 29 F 3d 863 874 (3d Cir 1994)) A history ofdilatoriness is characterized by a consistent delay from the plaintiffs counsel Taha v Sharmouj 2022 VI SUPER 21U M11 15 (citing Gilbert v Gilbert SX 15 CV 508 2017 V1 LEXIS 143 at *8 (Super Ct Sep 11 2017)) Amjad Muliyedzlm v Jarrah Elgndi and Elgmlz Enterprise LLC Case No ST 2018 CV 00751 Cite as 2022 VI Super 96U Memorandum Opinion $119 Defendants make no arguments with respect to this factor within the instant motion In opposition Plaintiff contends there is no history of dilaton‘ness stating Defendants made no argument on this factor because there is no evidence to support it In their reply, Defendants argue that prior to commencing this action Plaintiff sat on his rights for ten (10) years before bringing suit and after filing suit the Plaintiff has made no significant efforts to move the matter forward Indeed Defendants claim they have prepared multiple Rule 26 scheduling plans served Rule 26 initial disclosures, arranged mediation, and endeavored to complete mediation, with little or no cooperation from Plaintiff Defendants note any effort to move forward has been slighted by Plaintiff‘s stale and flimsy claims and the lack or nonexistence of documentation to support them 1m) Though Defendants only addressed this factor in their reply (effectively waiving the argument when they failed to raise it in the instant motion) the Court will still review the facts of this matter under each Hallxday factor in order to accurately balance the factors Todman v Hicks, No ST 16 CV 158 2018 VI LEXIS 133 at *3 (VI Super Ct Mar 5 2018) (citing Hallxday 53 V l at 51 l) (stating the Superior Court must make express findings as to each factor ) Based on the record and the parties motions the Court finds Plaintiff has done nothing to move this matter forward since he filed Rule 26 initial disclosures in December 2019 The parties have repeatedly failed to adhere to a scheduling plan First the parties scheduling plan came and went during the onset of the Covid 19 pandemic, which is a neutral reason for delay Then, while the parties adhered to the Court 3 order to hold a mediation prior to December 31 2020 after the parties adjourned with the intention to meet and continue mediating, they never reconvened In their most recent attempt to advance this matter the parties established a discovery timeline for the summer of2021 The email exchanges between the parties attached as exhibits to both parties Anyad Muhyeddm t farm}: Eighth and Elglldl Enterprise LLC Case No ST 2018 CV 00751 Cite as 2022 VI Super 96U Memorandum Opinion motions display Defendants consistently requesting updates and additional information and Plaintiff repeatedly provided assurances that he would respond and provide the requested documentation but still (as ofthe date this opinion was filed) has yet to do so While this litigation has been pending for nearly four years the lack of effort put forth and continuous delay on the part of Plaintiff indicates a pattern of such behavior 9 Even so the Plaintiff cannot be faulted for all the delays invulved in this matter, so the Court finds this factor to be neutral with respect to the balancing test 4 Willful or bad faith conduct 1121 “Willfulness involves intentional or self sewing behavior ’Encarnacton 2018VI LEXIS 73, *7 8 (quoting Adams 29 F 3d at 875) A trial court must point to specific evidence tojustify its determination ofwillfulness or had faith Taha 2022 V1 SUPER 21 U at 11 16 (quoting Malloy 56 V I at 192) When there is no evidence of willfulness on the record the Court must presume the party or attorney 5 contested conduct was not willful or in bad faith Molloy 56 V I at 174 fizz Neither party makes arguments that there was or was not bad faith or willful conduct in this matter In their reply Defendants state the record indicates there may be willfillness or bad faith since the Plaintiffhad not served his discovery responses as ofthe date Defendants filed their reply on March 3 2022 at which time the discovery responses were nine (9) months overdue 10 Upon reviewing the record of this case it is evident Plaintiff has failed to adhere to deadlines and to date has not filed responses to Defendants outstanding interrogatories and request for production, but the Court finds no evidence ofintentional self serving behavior from the Plaintiff, 9 The Court rejects Defendants arguments that Plaintiff demonstrated a pattern of delay by sitting on his rights before filing the complaint that initlated this matter Plaintiff‘s pre litigation beha\ lot cannot be a factor in deciding whether a party Was dilatory in litigation W But as of the issuance of this opinion, Plaintiff‘s responses are now seventeen (17) months overdue In the Interim, Plaintiff has never filed a motion for an enlargement of time to file his discovery responses Amlnd Muhyeddm w Jarmh Elgadz 0nd EIgudl Enterprise LLC Ca<e No ST 2018 CV 00751 Cite as 2022 VI Super 96U Memorandum Opinion nor any indication of willfulness not bad faith Accordingly the Court finds this factor weighs against dismissal 5 Effectiveness of sanctions other than dismissal 1123 Dismissal is a sanction of last resort, s0 courts must consider alternative methods to effectively sanction a dilatory litigant before ordering dismissal Encamacmn 2018 V I LEXIS 73 at *8 (citing Paulls 747 F 2d at 869) The court should consider whether a lesser sanction would better serve the interests ofjustice 1d at *8 9 (quoting Guyer V Beard 907 F 2d 1424 1429 :0 (3d Cir 1990)) Alternative sanctions can include ‘ excluding evidence, precluding witnesses striking portions of pleadings or imposing monetary sanctions to compensate the harmed patty for reasonable expenses, including attomey’s fees, caused by the noncompliance ” leberl 2017 V I LEXIS 143 at *10 (citing Carly L Mason No ST 06 CV 433 2010 V I LEXIS 88 at *8 (V 1 Super Ct Dec 7 2010)) The most direct and therefore preferable sanction for the pattem of attorney delay would be to impose the excess costs caused by such conduct directly upon the attorney, with an order that such costs are not to be passed on to the client directly or indirectly Watts 54 V I at 310 (Swan J concurring) (quoting Faults 747 F 2d at 869) $124 Defendants argue Plaintiff‘s failure to participate in this matter and the ongoing burden on Defendants due to the stalled litigation entitles Defendants to an order of dismissal and removal of any interest Muhyeddin may have in the business or the Property Plaintiff responds that Defendants have made no showing as to why lesser sanctions are inappropriate since dismissal is the most extreme sanction available and should only be used under extraordinary circumstances Plaintiff notes although Defendants attached email communication between the parties, this only indicates the matter has not been at a years long standstill as is ofien the case for matters dismissed for failure to prosecute Plaintiff notes he is active on this matter and an order from the Court will Am/ad Muhvcddm I Jana}: Elgadr anti Elgadl Enlerprtxe LLC Case No ST 2018 CV 00731 Cite as 2022 VI Super 96U Memorandum Opinion suffice to get the case back on track In reply, Defendants reiterate their original arguments for dismissal and suggest the only alternative is an order to compel which they opted not to file because they claim it would not be adhered to and only serve to further delay the case 1125 In Rohn v Daily News Publishmg Company a 2015 Virgin Islands Superior Court case the defendants failed to seek any sanctions against the plaintiffprior to filing a motian to dismiss for failure to prosecute Ruhr: v Daily News Pub] Co No SX 04 CV 158 2015 VI LEXIS 126 at *13 (VI Super Ct 2015) In that case the defendants never filed a motion to compel the plaintiffto appear to be deposed, nor did they file a motion to compel the plaintiffto answer their discovery requests Id at *13 14 The Ruhr; court noted dismissal is an appropriate sanction only when ‘other lesser sanctions have proven futile ’ 1d at *14 (quoting Brunn v Daxmlerch/ysler Corp N0 2001 0125 2007 U S Dist LEXIS 98198 at *4 (D VI Nov 26 2007)) In the Rohn decision the court ordered lesser sanctions than the requested dismissal specifically to fit the facts of the case in which the plaintiff failed to appear for her scheduled deposition or provide an altemative date to hold such deposition the court barred the use of any testimony plaintiff would have provided at such deposition at trial Id at *14 1‘ 1126 In the instant matter Defendants also jumped directly to requesting the most extreme sanction of dismissal, rather than considering alternative sanctions Pursuant to V1 R Civ P 37(a) Defendants were entitled to move to compel discovery for Plaintiff‘s failure to answer an interrogatory or produce documents V I R Civ P 37(a)(3)(B)(iii) (iv) Though there is nothing within V I R Civ P 37 requiring a party move to compel discovery prior to moving to dismiss the matter for failure to prosecute the Court notes filing a motion to compel prior to such motion “ The Rnhn matter was eventually dismined following plaintiffs motion for voluntary dismissal Ruhr: v Daily New: Pub! C0 72VI 301 (VI Super Ct Dec 19 2019) Amlad Muhyezldm v Jarret}: Elgmlz and Elgndt Emeypnse LLC Case No ST 2018 CV 00751 Cite as 2022 VI Super 96U Memorandum Opinion Pa e 16 of 18 to dismiss is the general convention In this case the Court is persuaded there is an altemative to the extreme sanction of dismissal particularly given Plaintiff‘s opposition to the instant motion Wh1Ch indicates his continued interest in and dedication to the litigation Accordingly, the availability of alternative sanctions weighs against dismissal as a sanction 6 Meritoriousness of Plaintiff’s claims {[27 To determine whether claims are meritorious for this inquiry the Court does not use summary judgment standards, rather, a claim is deemed “meritorious when the allegations of the pleadings ifestablished at trial would support recovery by plaintiffor would constitute a cmnplete defense Encamaclon 2018 V I LEXIS 73 at *10 (quoting P014113 747 F 2d at 869 70) 1128 The parties make lengthy arguments regarding the specific facts of the matter; however, such arguments are not necessary to analyze the meritoriousness of Plaintiff‘s claims under the applicable standard, articulated in Encarnaclon v Government 0fthe Vlrgm Islands and P014115 v State Farm Fire and Casualty Company Accordingly the Court looks to the original complaint to determine the meritoriousness 0f Plaintiff‘s claims {[29 Plaintiff filed a five count complaint (I) demand for accounting (2) demand for profits and return of investment (3) demand for participation (4) misuse ofpartnership property and (5) preliminary and permanent injunction The major dispute in this matter centers on whether there existed (or exists) an agreement establishing a partnership under which the parties agreed to co own and operate a gas station and convenience store and if such agreement exists whether Defendants violated its terms entitling Plaintiff is entitled to the recovery requested in his original complaint Upon review of the complaint the Court finds that if all the allegations therein are Amjad Muhynddm v Jana}: EIgadz (ind Elgudx Enterprme LLC Cam No ST 2018 CV 00751 Cite a: 2022 V1 Super 96U Memorandum Opinion proven at trial the Plaintiff may be entitled to recovery on his claims ‘2 '3 Accordingly the potential meritoriousness of the case weighs against dismissal 7 On balance, the Halllday factors do not weigh in favor of dismissal 1130 The Court finds factors one and two weigh in favor of dismissal However the Court also finds factor three is neutral with respect to dismissal, and factors four, five, and six weigh against dismissal Accordingly upon balancing the Hallzday factors and considering the circumstances of this matter the Court finds the extreme sanction of dismissal is not the appropriate remedy at this stage of the litigation However, as discussed above, there are alternative sanctions which are appropriate for these circumstances First the Court will award attorney 3 fees to Defendants Second the Court will order Plaintiff to promptly respond and provide Defendants with the outstanding discovery within fifteen (15) days of entry of this opinion and conesponding order Should Plaintifffail to respond within the allotted time the Court will implement sanctions similar to those within the Kuhn case barring introduction at trial of any of the items Defendants have repeatedly requested from Plaintiff in the outstanding interrogatories and request for production CONCLUSION {[31 The Defendants have not demonstrated they are entitled to dismissal of the complaint at this stage of the proceeding However, the Court finds Plaintiff‘s unexplained lengthy delay is 17 Count 1 Is a demand for accounting where Plaintiff claim: he is entitled to an accounting of the finances of the business from his partner Elgadl Citing lo 26 V I C §§ 74 and 75 Count II is a demand for profits and return of investmenl Count 111 15 a demand for participation, where Plaintiff claims he is entitled to equal access and equal participation in the partnership Count 1V alleges misuse ofpannership property as Plaintiff claims Elgadi should be paying monthly rent to the parmershlp for his use ofone om: rental units as a li\ 111g space Count v seeks preliminary and permanent injunction as Plaintiff claims he does not have an adequale remedy In law to recover the damages he will suffer due to his exclusion from the partnership ” The Court must also acknowledge, however, that Defendants counterclaims could potentially defeat plaintiffs claim: at trial Animal Muhyeddm \ Jarruh Elgadx and Elgadr Enterprise LLC Case No ST 2018 CV 00751 Cite as 2022 VI Super 96U Memorandum Opinion sanctionable The Conn will allow Defendants to file a petition for attorney 5 fees for the time associated with drafting the motion to dismiss and filing a reply to Plaintiff‘s opposition In addition the Court will order Plaintiff to respond to the outstanding discovery requests within fifteen (15) days failing which Plaintiffwill be barred from introducing into evidence at trial the documents responsive to the outstanding request for production of documents and offering any testimony or evidence that is responsive to the outstanding interrogatories Additionally because Defendants made no arguments specific to their request that the Court enter judgment on their Counterclaims to quiet title and for declaratory judgment the Court will deny such request An order consistent herewith will immediately follow DATED November 3? 2022 M%4%9 Kathleen ackay Judge of the Superior Court ATTEST ofthe Virgin Islands TAMARA eHARL S Clerk 0 h Court BY mm W DON A D DONOVAN Court Flew Supervisor 1 ( / m/ 9099'? IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN AMJAD MUHYEDDIN ) Case No ST 2018 CV 0075] ) Plaintiff ) VS ) ) ACTION FOR BREACH OF JARRAH ELGADI and ) PARTNERSHIP ACCOUNTING ELGADI ENTERPRISE LLC ) DECLARATORY RELIEF ) ACTION FOR PRELIMINARY ) AND PERMANENT INJUNCITON Defendants ) R) ORDER THIS MATTER is before the Court on a Motion to Dismiss for Failure to Cooperate in Discovery, filed by Defendants on July 30, 2021 For the reasons set forth in the Memorandum Opinion entered on this day it is hereby ORDERED that the Motion is DENIED it is further ORDERED that the portion of Defendants Motion seeking entry ofjudgmem on their counterclaims is DENIED it is further ORDERED that Plaintiff shall within fifteen 115) days of entry of this Order file full and complete responses to the outstanding interrogatories and request for production ofdocumems, [azlmg whzch the Plamtth 1411/1742 barred [ram olZermgcmv testimonv or evtdence at [rm] [ha] would have been VESQOVISIVG t0 the outstanding discoverv requests; it is further ORDERED that Defendants will be granted an award of attorney 3 fees for the time associated with filing the Motion and defending same; it is funher Am/atl Muhyeddm » Jarmh Elgadz and Elgadx Enterprise LLC Case No ST 2018 CV 00751 Order Page 2 of2 ORDERED that Defendants shall submit the appropnate petition for an award of fees within thing [30) days of emu of this Order and it is finally ORDERED that copies of the Memorandum Opinion and this Order shall be directed to counsel of record DATED November Q7 2022 M7%& Kathleen Mackay Judge of the Superior Court ATTEST of the Virgin Islands TAM RA CHAR LG Clerk Cour. BY '9 DUNN D DONG AN Coult Clerk Supervisor H /m /W