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SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX ALI A TAHA PI AINTIFF, Civil No SX 2013 CV 117 V ACTION FOR DEBT AND CONSTRL CTIVE TRUST ZILA SHARMOUJ AND MAHMUD SHARMOUJ TRLSTEES OF THE ZILA CITE AS 2022 VI SUPER 211} SHRMOUJ REVOCABLE TRUST DFFFNDANTS Appearances Ali A Taha Plamnfl, [710 se K Glenda Cameron, Esq Law Office of K G Cameron Christiansted U S Vilgin Islands F01 Defendants MEMORANDUM OPINION AND ORDER WILLOCKS Presiding Judge ‘II 1 THIS MATTFR is before the Conn ma spouts) for review BACKGROUND ‘1[ 2 On April 2 2013 Plaintiff Ali A Taha (hereinatter Plaintiff ) filed a complaint against Zila Sharmouj and Mahmud Shin mouj t1ustees 0f the Ziia Sharmouj Revocable Trust (hereinafter Defendants ) in an action for debt and constructive trust (Compl ) On June 7 2013 Defendants filed an answer in response to Plaintiff s complaint ‘fl 3 OnApri124 2019 Robelt A Waldman Esq of Hamm Eckard LL? (hereinafter Attorney Waldman ) Plaintiff s counsel at the time filed a motion to withdraw as counsel for Plaintiff in this matter Talm 1 Shannon; er (ll 9X 20H CV 117 Memorandum Opinion and Order 2022 VI SUPER ZlU ‘11 4 On July 10 2019 the Court enteied an order wheieby the Couit gianted Attorney Waidman s motion to withdiaw as counsel ordeied that the Older shall not be effectiVe until Attomey Waldman shall foxthvxith serve the Plaintiff with a copy of this Order and file proof of such service with the Court within thixty (30) days and that within thirty (30) days following the date of service and this Order upon the Plaintiff s new counsel shall file a notice of appearance for the Plaintiff (July 10 2019 Order ) ‘11 5 On January 9 2020 the parties appealed for a hearing to wit Maik Eckzud Esq (hereinaftei Attorney Eckard ) appealed for Attorney Waldman as counsel for Plaintiff and K Glenda Cameron Esq (heieinafter Attomey Cameron ) appeared as counsel f01 Defendants Attorney Cameron advised the Court that she believes the matter has been reeolved (116 On January 29 2020 Scot F McChain Esq (hereinafter Attorney McChain ) filed a notice of compliance of the July 10 2019 Older with the following documents Exhibit A a copy of the certified mail ieceipt showing that Ali Taha signed fox receipt on January 24 2020 dcopy 0f the cmer letter to Plaintiff dated January 15 2020 and a copy of the Court 5 July 10 2019 Older fl7 On October 7 2021 the Court entered an order whereby the Court ordered as follows ORDERED that within thirty (30) days from the date of entry of this Order Plaintiff [Ali A Tuba] and Defendants [Ziia Sharmouj and Mahmud Sharmouj tiustees of the Zila Sharmouj Revocable Trust] shail fiie a stipulated joint notice adVising the Court of the status of this case If this matter has not been resoixed then the parties shall file a stipulated scheduling order with their stipulated joint notice The parties shall include a blank date f0: a status conference via zoom on the proposed scheduling order for the Courts convenience Failure to submit a stipulated scheduling order will result in a show cause hearing and possible sanctions (Oct 7 2021 Order )' 1 In the Cu 7 2021 ()rdu the Court explained Tubal Shannon} eta] 9X 20]? CV117 Memorandum Opinion and Order 2022 VI SUPER 21U Page 1 01 9 ‘11 8 On November 22 2021 the COLIN entered an order wheieby the Court noted that [ads of the date of this Order no stipulated joint notice advising the Court of the status of the case has been filed and ordered as tollows‘ ORDERED that the October 7 2021 order ordering the parties to file a stipulated joint notice advising the Cou1t of the status of this case shall be and is hereby VACATED It is further ORDERED that a copy of this Ordei shalt be served upon Plaintiff at P O Box 5255 Sunny Isles VI 00823 via certified mail and regular First Class mail It is further ORDERED that a copy of this Older shall be sewed upon Defendant Zila Shaimouj and Defendant Mahmud Sharmouj via their counsel K Glenda Cameron Esq It is further ORDERED that within thirty (30) days from the date of service of this Order upon Plaintiff Plaintiff shall file a notice advising the Court ot the status of this case Failure to do so may result in this matter being dismissed for failure to pioseeute And it is further ORDERED that if Plaintiff s notice indicate that this matter has not been resolved then within thirty (30) days from the date Plaintiff filed her notice, the parties shall file a stipulated scheduling 01 der The p21: ties shalt include a blank date fOi a status conference \ia zoom on the pioposed scheduling Older tor the Courts convenience Failuie to do so may result in a show cause hearing and possible sanctions (hem 22 2021 Older) ‘1l 9 On December 23 2021 Plaintiff was mailed a top) of the November 22 2021 Oidei via xia certified mail (USPS Tracking Number 7020 2450 0002 2578 1546) and regular First Class mail Based on the infoxmation proxided by the USPS Tracking Number the eeitified mail was There has been no further mmement in this case since Attorney McChain tiled the notice of tomplianee on January 29 2020 Given Attorney MLChain s January 29 2020 notice 01 compliant: the July 10 2019 order granting Attorney Waldman s motion to withdraw as counsel is in died and Attorney Waldman is no 10mm the counsel of record tor Plaintiff (See Jul) 10 2019 Order ) At this juncture it is unclear whether this matter has been resolved as suggested by Attoine) Caeron at the January 9 2020 hearing (Oct 7 2021 Ordu ) Tahat Shannon} er a! SK 2011 CV 117 Memorandum Opinion and Order 2022 VI SUPER 21U Page 4 oi 9 delivered and received on December 31 2021 Additionaily there is nothing in the record that indicates that the regular Fitst Class mail was retumed to sandal The thirty day period has since passed ‘I[ 10 As of the date of this memorandum opinion and order Plaintiff has not filed a notice advising the Court of the status of this case and no notice of appearance has been filed on behalf of Plaintiff since Attorney Waldman withdrew as her counsel 7 STANDARD OF REVIEW ‘fi 1 k In Hulltdm 1 Footloc ker Spectaln Inc the Virgin Islands Supxeme Conn adopted the six Poul“g factors and heid that the Superiot Court may not dismiss an action to: taiiure to prosecute unIess these six [Poults] factors strongly weigh in tam: of dismissal as a sanction 53 V I 505 51 l {V I 2010) The six P014115 factou. are (1) the extent of the party .5 personal lesponsibility ( 2) the ptejudice t0 the adversary caused by the failure to meet scheduling ordexs‘ and respond to discovery (3} a history of dilatorinesS' {4) whethet the conduct of the party or the attorney was willful or in bad faith (5) the effectiveness of sanctions othet than dismissal which entails an analysis of alternative sanctions and (6) the meritmiousness 0f the c1aim on defense Mollm 1 Independent Blue Cross 56 VI I55 185 86 (V I 2012) {quoting Poults 747 F 2d at 868) In M0110) the Vi1 gin Islands Supreme Court instructed that [a]Ithough a trial court is not required to find that ail the factors weigh in favor of dismissai to warrant dismissal of the claim the court must explicitly consider ail six factors balance them and make express findings 56 V I 155 186 (V I 209) (citations omitted) In othe: words ‘ the extreme sanction of dismissal is reserved 2 59¢? snpm footnote I ‘Poqu 1 State Farm Fae & Cm C0 747 F 2d 86 ? 868 (3d Cir E984) Talia: Shalmmq era! §X 201? CV117 Memorandum Opinion and Order 2022 V I SUPER ZlU Page 5 01 9 for instances in which a triai court makes appropriate findings to all six factoxs and [w]ithout them the drastic sanction of dismissal cannot be watranted Id (citations omitted) DISCUSSION ‘11 12 This‘ matter has been pending since 2013 with minimal movement and there has been no movement at all in the past two years 4 The Court will consider the .six Faults factors and detetmine whether dismissal for failure to prosecute i9 warranted in this instance 1 Plaintiff’s Personal Responsibility 1“ 13 While Plaintiff was initidily lepresented by counsei she has been ptoceeding as a p10 se litigant since January 2020 She has not done anything to move this matte] forwatd since and in fact has failed to comply with the Court s Octobet 7 2021 order5 and November 22 2021 order inquiring the status of this case Whi1e Plaintiff as a pro .se litigant is entitled to additional 1eniency that leniency is not a license [excusing non compliance] with relevant tules 01 proceduial and substantixe law Montgomery \ Vugm Grand Villas 8'! John Owners Assouumm 71 VI 1119 1127 28 (V I 2019) (internal quotation omitted) see also Phillip t Marsh Monsanto 66 V1 612 622 (VI 2017) (noting that the leniency towatd p10 5e litigants has limits) As such this factor weighs strongly in favor of dismissal 2 Prejudice to the Adversary (II 14 In Mollm the Virgin Islands Supreme Court stated that [p}rejudice to the opposing party is generally demonstrated by either increased expense to the opposing party arising fiom the extra costs associated with filings responding to dilatory behavior or increased difficulty in the opposing 4 See supra footnote 1 ‘ While Plaintiff could not have complied 0n hut own with the October 7 2021 ordei shim. the Court ordered Piaintitf and Defendants t0 Hit. a stipulated joint notice Plaintitt termini) could ham. adxised the Court without Dctcnddnls rwarding he: position on the status 01 this tax. Ta/rax Shamng Hal 8X 20!? CV H7 Memorandum Opinion and Order 2022 VI SUPER 2]!) Page 6 0t 9 panties ability to present or defend their claim(s) due to the implopei behaxior 56 VI at 189 (unng Pauli; 747 F 2d at 868 ) As noted abOVe them has been no mOVement in this case since }anua1y 2020 6 With the passage of time evidence could be Iost memories could fad and witnesses could disappeai 01 become unavailable As with any case a lengthy delay will certainly make it more difficult for Defendants to defend against Piaintiff 3 claims As such this facton weighs in favor of dismissal 3 A History of Dilatoriness (ll 15 A history of dilatoriness is characterized by a consistent delay by the plaintiff‘s counsel Gzlbeitt Gilbert 2017 VI LEXIS 143 at 8(Super Ct Sep 11 2017) (citinc P011115 747 F2d at 868) A preliminary review of the file and the docket reVealed that Plaintiff s counsei and Plaintiff have been dilatory in prosecuting this matter to wit xery little actions have been taken to move this matter forward 7 As such this factox weighs in favor of dismissal 4 Offending Party/Attomey’s Conduct Willful or in Bad Faith ‘fl 16 In M0110) the Supreme Couit stated that the triai court must point to specific eVidence to justify its detelmination 0f willfulness or bad faith 56 V I at 192 Thus if there is no evidence of willfulness or bad faith on the recond the Court must piesume the party/attomey .s conduct was‘ not willful or in bad taith Id Here there is specific evidence to justify a deteimination that Plaintiff s conduct was wiilful or in bad faith to wit Plaintiff ignored the Court s Octobei 7 202] ordei8 and Noxember 22 2021 order As such this factor weighs in favor of dismissal “ See 5mm: footnote 1 For example minimal diswwry has been done 8 See supm footnote 5 Talth Shannon] and SK 2013 CV I I7 Memorandum Opinion anti Order 2022 VI SUPER ZIU Page 7 0t 9 5 Effectiveness of Alternate Sanctions ‘J[ 17 Courts must look to other appropriate methods of sanctioning befere dismissal for fdihue to prosecute because ‘ [d]ismissal must be a sanction of last not first resorfi Gilbert 2017 V I LEXIS 143 at 10 (citing Poulzs, 747 F2d at 869) Here some altemate sanctions include excluding evidence, preciuding witnesses striking portions of the pleadings or imposing monetary sanctions See Gllben 2017 VI LEXIS 143 at 10 However none of these alteinatives are applopriate here because in taking everything into consideration such as the fact that this case has been pending since 2013 with minimal movement and the fact that Plaintiff ignored the Court s recent orders the Court finds that there iacks a clean interest on Plaintiff s pan: to pursue her case against Defendants As such this factor weighs in favor of dismissal 6 Meritoriousness 0f the Claim ‘11 18 In considering whether a claim or defense appears {0 be meritorious for this inquiry, we do not purport to use summary judgment standards A claim 0: éetense will be deemed melitorious when the allegations of the pleadings if established at trial would support recmery by plaintiff or would constitute a complete defense See Grimm 2017 Vi LEXIS 143 at 10 (quoting Faults 747 F 2d at 869 70) In her complaint Plaintiff did not set forth any counts designating specific causes of action instead the caption indicated that it was an action for debt and constructive trust 9 (Compi ) 9 While Piainliti indicated in the Laption 0f the complaint that it is an anion for debt and commune trust eonstructiVe trust is an equitable remedy and [heretore not a separate eau5e 0t action See 90 CJ 3 Trusts § 176 ( [Consnuctiu trusts] are remedial in Lhal‘aLILI' and art. dassifiied as heionoing t0 remedial rather than substantiu law and it is not itself a suhstantiw rich! )(internal Litations omitted) see also In re Estate of 7’01!»th 48 V I 166 180 (V I Super Ct Dee E7 7006)( awnstruetiwe trust is an equitabie remedy wmpellinga person who has property to which he is not justE) entitked t0 Iranstu it to the person entitled to it ) (internai quotations and citation omitted) Thus the Court will only address PEaintitf s debt Llaim Tuba 1 Slimmotu e? a! 9X 20H CV 117 Memorandum Opinion and Order 2022 VI SUPER ZlU Pave 8 01 9 $119 A9 noteé in Carlos Warehouse 1 Thomas no Virgin Islands precedent (binding 01 persuasive) explains what common law rule goveins a claim for money owed and thus a Banks analysis was necessary to determine “ hether a debt claim should be recognized under the common law of the Virgin Islands. and what Specific rules should apply 64 V I 173 183 84 (V I Super Ct May 12, 2016) The Carlos Warehouse court conducted a Banks analysis anti concluded that it is unquestionably the soundest tale f01 the Virgin Islands to recognize a claim for debt Id at 192 (quotation marks and internai citation omitted) and that ‘ [t]o state a common lav» claim £01 debt undei Virgin Islands lav», the plaintiff must allege that the defendant owes a ceitain amount and that the defendant is or should be obligated to pay that amount Id Having renewed the Barth analysis. conducted in Carlos Wm ekome this Court sees no reason to depart fiom that ruling and adopts that analysis as though the same were set f01th herein In her complaint Plaintiff alleged that Plaintiff and Defendants agreed for Defendants to purchase real propezty from Plaintiff for the purchase price 01 $365 00000 (Comp! ([1111 5 6) and Defendants only paid a total of $322 381 31 (Compl ‘l[‘l[ 7 10) The Court finds Plaintiff 5 claim meiitorious because if these allegations are estabiished at trial, they would support reemery by Plaintiff As such this factor weighs against dismissal ‘11 20 Hating examined the six Pouln factors regarding the dismissal of this matter for failuie to prosecute, the Court finds that one factor weighs against dismissal and five factors weigh in favo: of dismissal (with one factm the extent of Plaintiff 5 personal responsibility weighing sttongly in favor) In this instance the Court finds the extreme sanction of dismissal is warranted See Mollm 56 V I at 186 ( Although 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 ) Tam“ Shannon} et a! 9X 20H CV117 Memorandum Opinion and Order 2022 VI SUPER 21U Page 9 0f 9 CONCLUSION ‘f[ 21 Based on the foregoing the Court will dismiss this matter for failure to prosecute and close this matter Accordingly it is heteby ORDERED that this matter is DISMISSED WITH PREJUDICE It is further ORDERED that this matter is CLOSED It is further ORDERED that a copy of this memoxandum opinion and order shall be served upon Plaintiff at P O Box 5255 Sunny Isles V1 00823 via certified mail and regular First Class mail And it is further ORDERED that a copy of this Ordei shall be sewed upon Defendants counsel K Glenda Cameron Esq DONE and SO ORDERED this wt“day of February 2022 ATTEST #4" ¢W Tamara Chaiies HAROLD W L WILLOC Clerk of the mt Presiding Judge of the Superior Court By Court Clerk Sum 7:- Dated 0? / 7 07°?