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SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN ) DONALD SEYMOUR, ) ) CIVIL NO. ST-17-CV-347 Plaintiff, ) Cite as 2019 VI Super 165 v. ) ) NEW DESTINY, LLC, and SUSAN FORKIN, a/k/a ___—+) SUSAN BISHOP, a/k/a SUSAN BISHOP-FORKIN, ) ) Defendants. ) ) MEMORANDUM OPINION ql Before the Court are four motions: Defendant Susan Forkin’s motion for reconsideration, Plaintiff Donald Seymour’s motion for leave to file an out-of-time motion to dismiss and accompanying motion to dismiss, and Forkin’s motion to dismiss and for sanctions. Forkin’s motion for reconsideration is denied as moot because an Amended Complaint has since been filed, supplanting the original Complaint. Seymour’s motion for leave to file an out-of-time motion to dismiss is denied for failure to comply with the procedural requirements of V.L. R. CIV. P. 6-2, and consequently, Seymour’s motion to dismiss is denied as untimely. The portions of Forkin’s motion to dismiss and for sanctions asking for the dismissal of Seymour’s claims and a default judgment on her counterclaims under the fugitive disentitlement doctrine are denied because the Court determines that the fugitive disentitlement doctrine is inapplicable here. Finally, the portion of Forkin’s motion to dismiss and for sanctions seeking the dismissal of Seymour’s Amended Complaint on the alternative basis of failure to prosecute is denied, since Seymour has continued to prosecute his claims, among other reasons. 2019 VI Super 165 Donald Seymour v. New Destiny, LLC, et al. Case No. ST-17-CV-347 Memorandum Opinion, December 2, 2019 BACKGROUND q2 In April 2017, Seymour and Forkin formed New Destiny, a Virgin Islands limited liability company, and they remain the sole members.' On August 7, 2017, Seymour filed a Verified Complaint, amended on December 3, 2018,7 alleging that on May 1, 2017, New Destiny purchased real property located in St. Thomas, for which Seymour contributed funds and items in connection with the purchase, including a land survey, stamps for a deed and mortgage, and fees.> The Amended Complaint further alleges that on May 10, 2017, the relationship between Seymour and Forkin began deteriorating, that on July 26, 2017, in a domestic violence action filed by Forkin, Forkin v. Seymour,‘ the Court issued a temporary restraining order against Seymour, and on August 2, 2017, a permanent restraining order, prohibiting contact with Forkin for one year.> The Amended Complaint enumerates four counts: the first and second counts seeking the dissolution of New Destiny on separate grounds, the third count asking for a judicial supervision of the winding up of New Destiny’s business and an accounting of the contributions and distributions of Seymour and Forkin, and the fourth count asserting a derivative claim against Forkin for breach of fiduciary duty.® q3 Forkin filed her Answer, Affirmative Defenses and Counterclaims on December 21, 2018, and the Court issued an Opinion and Order on September 18, 2018, with regard to the original pleadings, in part declaring New Destiny dissolved on the ground of an unreasonably ' Amended Complaint, pp. 2-5. ? Seymour’s Amended Verified Complaint, was deemed filed on December 3, 2018 (see Order dated December 12, 2018). > Amended Complaint, p. 3. 4 ST-17-DV-114. 5 Id. at 4, 6 Id. at 5-8. 2019 VI Super 165 Donald Seymour v. New Destiny, LLC, et al. Case No. ST-17-CV-347 Memorandum Opinion, December 2, 2019 frustrated purpose under 13 V.I.C. 1801(4)(i).’ Later on October 9, 2018, Forkin filed a motion for reconsideration of that portion of the Court’s Opinion, which Seymour opposed on November 21, 2019. 4 In an Order dated October 24, 2018, this Court held in abeyance the dissolution of New Destiny, LLC, until the parties had the opportunity to discuss a potential alternative disposition and until the Court decided Forkin’s motion for reconsideration and for leave to amend her Answer, Affirmative Defenses, and Counterclaims. In a subsequent Order dated December 12, 2018, the Court deemed Forkin’s Amended Counterclaims to have been filed on October 14, 2018,° and deemed Seymour’s Amended Verified Complaint to have been filed on December 3, 2018. In response to Seymour’s Amended Complaint, Forkin submitted an Amended Answer and Affirmative Defenses on December 21, 2018, incorporating by reference her Amended Counterclaims.? 45 Seymour then filed a motion to dismiss on January 9, 2019, opposed by Forkin on January 30, 2019.'° Forkin filed a motion to dismiss and for sanctions on March 27, 2019, which Seymour opposed on June 3, 2019. Forkin replied on June 14, 2019. DISCUSSION I. Motion for reconsideration 46 Forkin’s motion asks the Court to reconsider the portion of the Court’s September 18, 2018, Opinion and Order granting in part Seymour’s motion for judgment on the pleadings and declaring 7 Seymour v. New Destiny, LLC, 2018 V.1. LEXIS 134, *19-20 (V.I. Super. Ct. Sep. 18, 2018). * Seymour opposed Forkin’s Motion for Leave to Amend Answer, Affirmative Defenses, and Counterclaims on October 22, 2018, to which Forkin replied on November 9, 2018. ° Defendant’s Answer to Plaintiffs First Amended Verified Complaint, [with] Affirmative Defenses, and Counterclaims, p. 1. '© Seymour did not file a Reply. 2019 VI Super 165 Donald Seymour v. New Destiny, LLC, et al. Case No. ST-17-CV-347 Memorandum Opinion, December 2, 2019 New Destiny, LLC, dissolved.'’ Specifically, the Court granted Seymour’s request for a declaratory judgment to dissolve New Destiny, upon finding that there was unanimous agreement between the Forkin and Seymour that New Destiny’s economic purpose was likely to be unreasonably frustrated in accordance with 13 V.L.C. § 1801(4)(i) under the circumstances. 17 After Forkin filed the motion for reconsideration, however, Seymour filed an Amended Complaint, and Forkin, an Amended Answer. “It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.”'? Further, “[{a] motion becomes moot when something occurs after a motion is filed that resolves the issues raised in that motion’”!4 so that a “court's decision on [the] pending motion [would] be ‘hypothetical or academic’ or without any ‘practical significance[.]’”!> “In that instance, the motion should be dismissed or denied as moot because a decision [would] have no practical impact in the case however the court decides the motion.”'® Because Seymour’s Amended Complaint rendered his original Complaint inoperative, Forkin’s motion for reconsideration of the portion of the Court’s Opinion with respect to Seymour’s motion for judgment on the original pleadings, is denied as moot.'” But, because a bench trial is scheduled for December 10, 2019, that portion of the October 24, 2018, Order holding the dissolution of New Destiny in abeyance shall remain in effect. '! Motion for Reconsideration, pp. 4-7. '? See Seymour v. New Destiny, LLC, 2018 V.I. LEXIS 134, *18-*19 (V.L Super. Ct. Sep. 18, 2018). ') LoCurto v. AT&T Mobility Servs. LLC, 2017 U.S. Dist. LEXIS 64946, *8 (S.D.N.Y. Mar. 28, 2017) (quoting /nt‘/ Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977)). '4 Der Weer v. Hess Oil VI. Corp., 60 V.I. 91, *11 (V.I. Super. Ct. 2014) (citations omitted). 'S fd. at *12 (quoting Black’s Law Dictionary). '6 Id. at *13. "’ Accord Meserole v. Sony Corp. of Am., 2009 U.S. Dist. LEXIS 58763, *3-*4 (S.D.N.Y. July 8, 2009) (denying a motion for reconsideration as moot after Plaintiffs filed an amended complaint). This Court determines that decisions interpreting the Federal Rules of Civil Procedure that are substantively identical to their counterparts in the Virgin Islands Rules of Civil Procedure are persuasive authority. 2019 VI Super 165 Donald Seymour v. New Destiny, LLC, et al. Case No. ST-17-CV-347 Memorandum Opinion, December 2, 2019 II. Motion for leave to file out-of-time and motion to dismiss 48 Seymour moves to dismiss three of Forkin’s counterclaims: Counts II (stalking), VI (damages), and VII (accounting).'® Seymour’s motion to dismiss is untimely filed, and he has contemporaneously moved for an extension of time to file his motion to dismiss.'? V.I. R. Civ. P. 6-2 requires that “[a]ll motions seeking an extension of time under Rule 6(b) include: (a) A statement that the moving party has conferred with opposing parties and there is agreement or objection to the motion or that despite diligent effort, the moving party cannot ascertain opposing counsel's position; and (b) A representation reporting the number of motions for extension of time that have been filed in the pending action by the movant with respect to the same prescribed time period. Seymour’s motion indicates that he failed to comply with the procedural requirements set forth in V.I.R. Civ. P. 6-2, stating, “[i]t appearing futile under these circumstances to ask opposing counsel for concurrence in this Motion for Leave to File Out of Time, the undersigned instead simply apologizes to the Court and all concerned for missing the deadline, and asks the Court to consider the mistake to be unintentional and due to excusable neglect.”?° Consequently, the motion for an extension of time must be denied on procedural grounds, and accordingly, Seymour’s motion to dismiss is denied as untimely. '* Motion for Leave to File Out of Time, Opposition to Motion for Entry of Default, and 12(b)(6) Motion to Dismiss, pp. 3-6. '? The Court’s December 12, 2018, Order deemed Forkin’s Amended Counterclaims filed on October 14, 2018. The deadline for Seymour’s motion to dismiss for failure to state a claim was twenty-one days after December 12, 2018, which was January 2, 2019, and Seymour filed the motion on January 9, 2019. 20 Motion for Leave to File Out of Time, Opposition to Motion for Entry of Default, and 12(b)(6) Motion to Dismiss, p. 2. 2019 VI Super 165 Donald Seymour v. New Destiny, LLC, et al. Case No. ST-17-CV-347 Memorandum Opinion, December 2, 2019 II. Motion to dismiss and for sanction of dismissal 79 Observing that a warrant has been issued for Seymour’s arrest in the Virgin Islands for a failure to comply with pre-trial release conditions,”' Forkin asks the Court to “exercise its inherent authority under the ‘fugitive disentitlement doctrine’ to dismiss Seymour’s First Amended Complaint and enter default against him on ail counterclaims”, so that “[t]rial should proceed on the issue of damages[] only”,?” based upon “his status as a fugitive from justice and his tacit admission that he does not intend to appear for trial”? because of the active warrant. Alternatively, Forkin moves to dismiss Seymour’s Amended Complaint, arguing that Seymour has failed to prosecute his case.24 {10 Regarding the portion of the motion invoking the Court’s inherent authority, the Court determines that this inherent authority is recognized in V.L R. Civ. P. 1-3, regarding procedure in the absence of a controlling rule or Virgin Islands law, which provides: (a) Generally. When procedure is not prescribed by these Virgin Islands Rules of Civil Procedure, precedent from the Supreme Court of the Virgin Islands, or the Virgin Islands Code, a judge may regulate practice in any manner consistent with law of the Virgin Islands. Further, V.I. R. CIV. P. 1-3(b) limits the Court’s inherent authority as follows: (b) Violation of Requirements Not Specified in these Rules or Applicable Law. No sanction, penalty or other disadvantage may be imposed for noncompliance with any requirement that is not specified in these Civil Rules, the Virgin Islands Code, or in the law of the Virgin Islands, unless the Superior Court has issued an 7! Memorandum of Law in Support of Motion to Dismiss and for Sanctions, p. 4. 2 Id. at 5. 23 fd. at 1. 4 Id. at 9-13. 2019 VI Super 165 Donald Seymour v. New Destiny, LLC, et al. Case No. ST-17-CV-347 Memorandum Opinion, December 2, 2019 order providing the parties in the action with actual notice of the requirement. Accordingly, V.I. R. Civ. P. 1-3(b) indicates that the Superior Court may not dismiss Seymour’s Amended Complaint for noncompliance with any requirement that is not specified in the Virgin Islands Rules of Civil Procedure, the Virgin Islands Code, or in the law of the Virgin Islands, unless the Superior Court has issued an order providing the parties in the action with actual notice of the requirement. {ll As apreliminary matter regarding the timeliness of the motion, motions to dismiss made under V.I. R. Civ. P. 12(b)(2)-(7) and as provided in subparts 12(g) and (h) of Rule 12 must be made before pleading if a responsive pleading is allowed, but this constraint does not apply to all motions to dismiss.?> Because “{t]he fugitive disentitlement doctrine provides a discretionary remedy whose provenance lies in the common law or ‘inherent powers’ of a court”,2° and since Forkin’s motion to dismiss based upon fugitive disentitlement grounds specifically relies upon the Court’s inherent power, the motion is unlike a motion to dismiss for a 12(b) reason, and thus, was not untimely filed. {12 First, the Court observes that the “fugitive disentitlement doctrine” is a common law rule not yet adopted in the Virgin Islands. Because Forkin’s motion does not contain a Banks analysis?’ concluding that the fugitive disentitlement doctrine is the best rule for the Virgin 5 See Abney v. McDonough, 2018 U.S. Dist. LEXIS 226255, at *8-*9 (C.D. Cal. June 28, 2018) (finding that a motion to dismiss on fugitive disentitlement grounds was not untimely filed since it was not subject to the time constraints for motions filed under FED. R. Civ. P. 12(b)(2)-(5)). This Court determines that decisions interpreting the Federal Rules of Civil Procedure that are substantively identical to their counterparts in the Virgin Islands Rules of Civil Procedure are persuasive authority. 26 Niemi v. Lasshofer, 728 F.3d 1252, 1257 (10th Cir, 2013). 77 See generally, Gerald v. R.J. Reynolds Tobacco Co., 2017 V.1. LEXIS 99, n.66 (V.I. Super. Ct. July 5, 2017) (“As established in Banks v. Int'l Rental & Leasing Corp., 55 V.1. 967, 981-84 (V.I. 201 1), and subsequent cases, when confronted with an issue of Virgin Islands common law that ... the Supreme Court of the Virgin Islands has not 2019 VI Super 165 Donald Seymour v. New Destiny, LLC, et al. Case No. ST-17-CV-347 Memorandum Opinion, December 2, 2019 Islands, it would appear necessary for the parties to submit briefs on the Banks issue and for the Court to conduct a Banks analysis upon receipt of those briefs. Significantly, however, the Court takes judicial notice that Seymour was arrested and incarcerated on a felony charge in the state of California, but his counsel asserts Seymour may be released in December 2019.78 Thus, even assuming for argument that the fugitive disentitlement doctrine would be the best rule for the Virgin Islands, a threshold matter would be whether Seymour, as a current prisoner in another jurisdiction, would be subject to the fugitive disentitlement doctrine or whether the fugitive disentitlement doctrine would otherwise be applicable to this case. {13 Black’s Law Dictionary defines “fugitive” as “(a] criminal suspect or a witness in a criminal case who flees, evades, or escapes arrest, prosecution, imprisonment, service of process, or the giving of testimony, esp. by fleeing the jurisdiction or by hiding.””? Historically, courts developed the fugitive disentitlement doctrine “to avoid turning trials and appeals into unenforceable farces” because, if a fugitive-defendant could file motions, “any litigation would risk devolving into nothing more than a rigged game, a sort of no-lose proposition for the defendant in which an adverse judgment would guarantee only a continuation of the chase ‘heads, I win; tails you can't find me.””*” {14 | Under the contemporary fugitive disentitlement doctrine in its classic form, “an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency resolved — or that has been addressed only through erroneous reliance on former 1 V.1.C. § 4 — courts in this Jurisdiction must engage in a three-factor analysis: first examining which common law rule Virgin Islands courts have applied in the past; next identifying the rule adopted by a majority of courts of other jurisdictions; and then finally — but most importantly — determining which common law rule is soundest for the Virgin Islands”). *8 During a Pretrial Conference on October 30, 2019, the Court was advised that Seymour remained incarcerated and may be released sometime in December 2019. *9 Black's Law Dictionary 786 (10th ed. 2014). 3° Niemi, 728 F.3d at 1255. 2019 VI Super 165 Donald Seymour v. New Destiny, LLC, et al. Case No. ST-17-CV-347 Memorandum Opinion, December 2, 2019 of his appeal.”*! In Ortega-Rodriguez v. United States, the U.S. Supreme Court explained that the rationale permitting the dismissal of fugitives’ appeals “has rested in part on enforceability concerns, and in part on a “disentitlement’ theory that construes a defendant's flight during the pendency of his appeal as tantamount to waiver or abandonment.” Importantly, the court found that, if a fugitive is captured or turns himself or herself in, and is thus a former fugitive, the doctrine carries little force, since “[a]bsent some connection between a defendant's fugitive status and his appeal, as provided when a defendant is at large during ‘the ongoing appellate process’... the justifications advanced for dismissal of fugitives’ pending appeals generally will not apply.”** The court did not rule out the possibility of appellate disentitlement with respect to a former fugitive, however, where necessary to prevent prejudice to the Government, finding that a “long escape, even if ended before sentencing and appeal, may so delay the onset of appellate proceedings that the Government would be prejudiced in locating witnesses and presenting evidence at retrial after a successful appeal.’?> Subsequently, in Degen v. United States,*6 the court reiterated the doctrine’s justifications: that judgment on review may be impossible to enforce if a party cannot be found and that “‘an appellant's escape ‘disentitles’ him ‘to call upon the resources of the Court for determination of his claims.’”2” 3! Ortega-Rodriguez v. United States, 507 U.S. 234, 239 (1993). 32 507 U.S. 234 (1993). 33 Id, at 240. 34 Id, at 249. 35 Id. See also Degen v. United States, 517 U.S. 820, 825 (1996) (in reference to Ortega-Rodriguez, 507 U.S. at 249: “We did not rule out the possibility of appellate disentitlement where necessary to prevent actual prejudice to the Government from a fugitive's extended absence, id., at 249, but we concluded the sanction of disentitlement was unjustified as a sanction applicable to all cases where an escape once had occurred”). 6 517 U.S. 820 (1996). 7 517 U.S. at 824. (quoting Molinaro v. New Jersey, 396 U.S. 365, 366, 24 L. Ed. 2d 586, 90 S. Ct. 498 (1970) (per curiam)). Parenthetically, Degen’s holding—that district courts may not use the common law fugitive disentitlement doctrine to preclude fugitives from pursuing claims in civil forfeiture proceedings—was superseded by the Civil Asset Forfeiture Reform Act, enacted in 2000, which permits courts to disentitle fugitives in civil forfeiture actions 2019 VI Super 165 Donald Seymour v. New Destiny, LLC, et al. Case No. ST-17-CV-347 Memorandum Opinion, December 2, 2019 {!5 | Courts have applied the doctrine in civil cases where the fugitive is a plaintiff, finding the same factors set forth in Degen applicable.*® Here, Forkin urges the Court to adopt the test employed by the Eleventh and First Circuits, permitting the dismissal of a civil action on fugitive disentitlement grounds when: (1) the plaintiff is a fugitive; (2) his fugitive status has a connection to his civil action; and (3) the sanction employed by the district court, dismissal, is necessary to effectuate the concerns underlying the fugitive disentitlement doctrine.°? Forkin asserts that the first two factors are met here, and, with regard to the third factor - the concerns underlying the doctrine, Forkin contends that dismissal is necessary to prevent delay, frustration, and prejudice to her.4° Noting Seymour’s arrest for violating the restraining order protecting her, Forkin asserts that Seymour’s lawsuit is another tool of harassment.! {16 Notwithstanding whether this Court were to adopt the fugitive disentitlement doctrine as the best rule for the Virgin Islands, with respect to the portion of Forkin’s motion seeking to disentitle Seymour from maintaining his claims against Forkin, the Court finds that the fugitive disentitlement doctrine is inapplicable, since, at a minimum, no facts demonstrate a necessity to justify disentitlement.” The court in Degen indicated that “{a] court’s inherent power is limited when certain conditions are met (see Degen, 517 U.S. at 822-29; see also United States v. All Funds on Deposit at Citigroup Smith Barney Account No. 600-00338, 617 F. Supp. 2d 103, 123 (E.D.N.Y. 2007) (explaining that in response to Degen, Congress enacted the Civil Asset Forfeiture Reform Act of 2000, a statutory fugitive disentitlement doctrine that accomplished the result that the Supreme Court concluded could not be achieved through the common law), 38 See, e.g., Barnett v. YMCA, 268 F.3d 614, 618 (8th Cir. 2001) and Walsh v. Walsh, 221 F.3d 204, 215 (Ist Cir. 2000). 3° See Reply to Opposition to Forkin’s Motion to Dismiss and for Sanctions, p. 3 (citing Walsh, 221 F.3d 204 at 215). 4° Id. at 3. “ To conduct a Banks analysis on a doctrine that the Court finds inapplicable would be to put the cart before the horse and a futile use of limited judicial resources. 2019 VI Super 165 Donald Seymour v. New Destiny, LLC, et al. Case No. ST-17-CV-347 Memorandum Opinion, December 2, 2019 by the necessity giving rise to its exercise”,** and the sanction of disentitlement, which forecloses the consideration of claims on the merits, is “most severe.”“4 The court cautioned that “too free a recourse” to disentitlement would erode the respect accorded to a court’s judgments from which the dignity of a court derives.*” With respect to Forkin’s concerns regarding delay and prejudice, at this procedural juncture, a bench trial is imminent and the parties have been ordered to submit a minimal witness list by December 1, 2019.‘° Thus, dismissal is not needed to prevent delay. Further, the asset of New Destiny in dispute is an estate in St. Thomas.*” In Degen, a civil forfeiture action in which the Court found that its jurisdiction over the property was secure despite Degen’s absence, there was no danger that the court would waste its time rendering an unenforceable judgment to justify disentitlement.*® Similarly here, this Court has jurisdiction over the estate in dispute so that unenforceability of the judgment is not a concern. 417 As to the portion of Forkin’s motion asking the Court to enter default judgment against Seymour on all of Forkin’s counterclaims under the fugitive disentitlement doctrine, the Court determines that disentitlement is similarly unnecessary. Forkin asks the Court to enter default against Seymour under the doctrine solely “based upon Seymour’s assertion that he will not appear for trial.”*? Forkin contends that she will be prejudiced should Seymour not physically appear for trial, since Seymour’s claims and defenses will be based upon his personal testimony, ? Degen, 517 U.S. at 829. 4 Id. at 828. 45 Jd. (“It remains the case, however, that the sanction of disentitlement is most severe and so could disserve the dignitary purposes for which it is invoked. The dignity of a court derives from the respect accorded its judgments. That respect is eroded, not enhanced, by too free a recourse to rules foreclosing consideration of claims on the merits”). © Record of Proceedings, October 30, 2019. “7 See Reply to Opposition to Forkin’s Motion to Dismiss and for Sanctions, p. 4. See also Opposition, p. 6. 48 Id. at 825. “? See Reply to Opposition to Forkin’s Motion to Dismiss and for Sanctions, p.4. 2019 VI Super 165 Donald Seymour v. New Destiny, LLC, et al. Case No. ST-17-CV-347 Memorandum Opinion, December 2, 2019 and his absence will prevent the Court from weighing his credibility.’ In the alternative, Forkin asks the Court to “order that Seymour appear in person for trial, and that his failure to do so will result in dismissal of his claims and his default on all counterclaims as a sanction under V.I. R. Civ. P. 37”°! so that the case would “proceed to a hearing on damages only.”5?_ Whether Seymour will physically appear for trial is yet to be determined. Should Seymour prove to be unwilling or unable to appear for trial or comply with an order regarding discovery, the presentation of evidence, or other matters, he will be exposed to the same sanctions as any other uncooperative party in a civil suit.*? V.I.R. Civ. P. 37 and 41(b) empower the Court to enforce its orders with sanctions up to and including dismissal, so that the sanction of disentitlement is unnecessary should Seymour fail to appear or fail to comply with orders. q18 Finally, Forkin appears to move to dismiss the Amended Complaint on the alternative basis of failure to prosecute under V.I. R. Civ. P. 41(b). V.I.R. Cv. P. 41(b) permits a defendant to move for dismissal of an action or a claim against it if a plaintiff fails to prosecute or comply with the rules of civil procedure or a court order.** A dismissal for failure to prosecute constitutes an extreme sanction,>° and unless the dismissal order states otherwise, operates as an adjudication on the merits.°° When evaluating a motion to dismiss for failure to prosecute, the °° See Motion to Dismiss and for Sanctions, p. 12. 3} ld 52 ld %3 See generally, Degen, 517 U.S. at 827. This Court determines that V.I. R. Civ. P. 37 and 41(b) and FED. R. Civ. P. 37 and 41(b) are sufficiently analogous for Degen to be persuasive authority here. *4'V.I.R. Civ. P. 41(b) provides: “Involuntary Dismissal; Effect. If the plaintiff fails 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. Unless the dismissal order states otherwise, a dismissal under this subpart (b) and any dismissal not under this rule — except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 — operates as an adjudication on the merits.” * See Watts v. Two Plus Two, Inc., 54 V.1. 286, 290 (V.I. 2010) (quoting Halliday v. Footlocker Specialty, Inc., 53 V.I. 505, 511 (V.1. 2010)). % See V.I.R. Civ. P. 41(b). 2019 VI Super 165 Donald Seymour v. New Destiny, LLC, et al. Case No. ST-17-CV-347 Memorandum Opinion, December 2, 2019 Superior Court must weigh six factors, adopted by the Virgin Islands Supreme Court in Halliday v. Footlocker Specialty, Inc.:>7 (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, with entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.°8 To warrant dismissal, the Superior Court must make express findings as to each factor and conclude that, together, the factors strongly weigh in favor of dismissal.°? While it is not required that all six factors weigh in favor dismissal, dismissal is “reserved for those cases where there is a clear record of delay or contumacious conduct by the plaintiff.”*! 419 Here, Forkin asserts that “the first, third and fourth Halliday factors weigh heavily in favor of dismissal” based upon Seymour’s status as a fugitive with respect to the Virgin Islands and his “refusal” to appear at trial.’ Forkin argues that the second factor, prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery, will be met if Seymour does not appear for trial, since his “claims and defenses are almost entirely based upon his disputed version of events”® and his absence “will prevent the Court from weighing his credibility." Because Forkin has failed to make the requisite showing on all six Halliday 57 §3 VI. 505 (VI. 2010). °8 See Watts, 54 V.I. at 290; see also Halliday, 53 V.1. at 510 (citing Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (emphasis omitted)). °° See Halliday, 53 VI. at 511. * See Watts, 54 VI. at 299 (citations omitted) (Swan, J. concurring). 5! fd. (quoting Poulis, 747 F.2d at 866 (quoting Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir. 1982))). ®? Motion to Dismiss and for Sanctions, p. 11. 63 Id at 12. 64 Id. 2019 VI Super 165 Donald Seymour v. New Destiny, LLC, et al. Case No. ST-17-CV-347 Memorandum Opinion, December 2, 2019 factors, because Seymour has continued to prosecute his case, and because the trial date has not yet transpired, rendering premature any conclusion that Seymour will not appear for trial, Forkin’s motion must be denied. CONCLUSION {20 For the foregoing reasons, Defendant’s motion for reconsideration is denied as moot, Defendant’s motion to dismiss and for sanctions denied, and Plaintiff's motion for leave to file an out-of-time motion to dismiss and accompanying motion to dismiss are denied. An Order consistent with this Opinion shall follow. Dated: December 2, 2019. —— HON. MICHAEL C. DUNSTON ATTEST: Estrella George JUDGE OF THE SUPERIOR COURT Clerk of Court / / | OF THE VIRGIN ISLANDS by °; VO_ a Donng/D). Donovan Court Clerk Supervisor 1a92 / Ps) IF