Basic Services, Inc. v. Government of the VI

• Court: Superior Court of The Virgin Islands
• Decided: December 10, 2020
• Docket: ST-12-CV-231
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN *************

BASIC SERVICES INC ) CASE NO ST 2012 CV 00231 ) Plaintiff, ) ) ACTION FOR BREACH OF CONTRACT v ) AND DEBT ) GOVERNMENT OF THE VIRGIN ) ISLANDS ) JURY TRIAL DEMANDED ) We Cite as 2020 VI Super 104U

MEMORANDUM OPINION & ORDER

I W 1|] THIS MATTER comes before the Court on the following

1 Plaintiff’s Motion for Relief from an Order and to Amend Complaint filed May 3 2018

2 Defendant’s Opposition to Motion for Relief from an Order and to Amend Complaint filed June 18 2018'

3 Plaintiff‘s Renewed Motion for Relief from Judgment and Order, filed June 17 2019

4 Defendant 3 Opposition to Plaintiff’s Renewed Motion for Relief from Judgment and Order filed June 24 2019

S Plaintiff’s Second Renewed Motion for Relief from Judgment and Order, filed August 23 2019 and

6 Defendant 5 Opposition to Plaintiff‘s Second Renewed Motion for Relief from Judgment filed September 9 2019 ‘2 Plaintiff, Basic Services, Inc (“Basic”), sued Defendant Government of the Virgin Islands (“Government ), on May 8, 2012, alleging breach of a contract under which Basic agreed to provide professional computer communications, and technical support and services to the Virgin Basic Services, Inc v Government ofthe Virgin Islands Cite as 2020 VI Super 104U Case No ST 12 CV 231 Memorandum Opinion & Order Page 2 of 10

Islands Department of Education( VIDOE”) ' The contract specifies that funding for the services provided by Basic would be subject to approval by the E Rate Program The E Rate Program, also known as the School and Libraries Program of the Universal Service Fund, is a federally funded initiative administered by the Universal Service Administrative Company (“USAC’) Accordingly, the contract states it is contingent upon E Rate funding” and that the Government shall only be responsible for paying ten percent (10%) of the total cost of eligible services and products ’ $3 The E Rate program is administered by the Schools and Libraries Division of USAC and pays up to 90% of funding to assist eligible schools and libraries in paying for intemet and other telecommunication and information services 3 Under the contract, Basic submitted its invoices to VIDOE, which then approved them and forwarded them to USAC, and the Government further contracted that it would assist Basic in securing payment from USAC as requested by Basic 4 While the Government paid its portion, Basic states three invoices remain unpaid'by USAC in an amount totaling $569,759 98 and alleged that the Government was responsible 5 1|4 Basic sought to amend its Complaint,” then the Government moved for summary judgment on August 1, 2017, and Basic sought to oppose summary judgment and cross filed its own motion for summary judgment on August 25, 2017 This Court granted the Government 5 motion on October 17, 2017, and Basic appealed to the Virgin Islands Supreme Court on November 7, 2017 On June 13 2019, the Virgin Islands Supreme Court affirmed the Superior Court 5 Order granting summary judgment for the Government and affirmed the Order denying Basic’s motion to amend 7

115 However, in the interim, USAC issued two letters dated December 27 and December 28, 2017 (collectively, Letters ) to Basic explaining its reasoning for denying Basic funding The Letters were the result of years of investigation These letters explained that funding was denied because a VIDOE employee who was a member of the vendor evaluation committee also had an association with Basic and was paid by Basic during the same years that Basic was selected by the

' Compl 1| 4 2 Contract for Professional Services, Addendum 11 page 15 (fully executed on April 5 2005) attached to Defendant 3 Cross Mot for Summ J 3 U S Department of Education, Other Federal Agency Laws and Programs, https www2 ed gov about/inits ed/non public education other federal programs fee html (last visited Dec 3 2020 4 Basic Serwces Inc v Gov l ofthe Virgin Islands, 7l V I 652, 655 (V I 2019), see also, Pl 5 Cross Mot for Summ J 2 7 ‘ Pl s Cross Mot for Summ J 4 6 On November 30 2015 Basic moved to amend its Complaint to include a claim for quantum meruit This amendment was ultimately denied by this Court on futility grounds as under Vanterpool v Gov I of the Virgin Islands, 63 V1 563 593 (VI 2015) and Cacuamaniv Rover 61 VI 247 252 (V l 2014) the Virgin Islands Supreme Court has held that an equitable remedy like quantum meruit is inappropriate where a legal remedy is available This decision was upheld by the Virgin Islands Supreme Court on June 13 2019 Bane Services Inc, 71 V I at 666 67 Basic Services Inc , 71 V I 652 Basu‘ Services. Inc v Government ofthe Virgin Islands Cite as 2020 VI Super 104U Case No ST [2 CV 231 Memorandum Opinion & Order Page 3 of 10

vendor evaluation committee, and that this conflict of interest compromised the competitive bidding process For this reason USAC refused to pay 8

1l6 As a result of these Letters, on May 3, 2018, Basic filed a Motion for Relief from an Order and to Amend Complaint On June 18, 2018, the Government filed an Opposition to Motion for Relief from an Order and to Amend Complaint After the Virgin Islands Supreme Court 5 ruling denying its appeal of the denial of Basic 3 summaryjudgment and amend complaint motions, Basic moved for a Renewed Motion for Relief from Judgment and Order on June 17, 2019 and the Government filed an Opposition to Plaintiff‘s Renewed Motion for Relief from Judgment and Order on June 24, 2019 On August 23, 2019, Basic filed a Second Renewed Motion for Relief from Judgment and Order, and the Government filed an Opposition to Plaintiff’s Second Renewed Motion for Relief from Judgment and Order on September 9, 2019 W In its motions, Basic seeks relief because the Letters issued afier entry of summary judgment indicate that VIDOE created a conflict of interest situation that compromised the competitive bidding process The wrongful action of the Department caused the nonpayment These letters and additional discovery will provide the necessary proof to support Basic 3 breach of contract claim ”9 It is also Basic 5 contention that the Government violated the competitive bidding rules when it hired an employee of Basic and put that employee without the knowledge of Basic on the vendor evaluation committee” and that this constituted a breach of the covenant of good faith ‘0 Importantly, Basic states in its first motion for relief that they contacted the U S Department of Justice repeatedly as to the reason for its nonpayment and it was told the matter is under investigation ” [1 LEGAL STANDARD {[8 Basic cites Virgin Islands Rules of Civil Procedure Rule 60(b)(2) and 60(b)(6) in its motions as the basis for its relief Rule 60(b)(2) and 60(b)(6) provide that

‘On motion and just terms the court may relieve a party or its legal representative from a final judgment order, or proceeding for the following reasons (2) newly discovered evidence that could not, with reasonable diligence, have been discovered in time to move for a new trial under Rule 59(b) (6) any other reason that justifies relief

'l9 Rule 59(b), referenced above, provides that “A motion for a new trial must be filed no later than 28 days after the entry ofjudgment As these letters were written several months after summary judgment, and Basic filed its first motion in May, Basic did not and could not have motioned for reconsideration within the 28 days provided Thus, V I R Clv P 60(b) is the only proper route for granting relief from judgment

8 Pl 5 Mot for Relief from Order and to Amend ( ompl Ex A 9 Pl 5 Mem in Supp of Renewed Mot for Relief from Judgment, 2 '0 Pl 5 Mem in Supp of Mot for Relief from Order and to Amend Compl 4 " Pl s Mem in Supp of Mot for Relief from Order and to Amend Compl 6 Basic Services, Inc v Government ofthe Virgin Islands Cite as 2020 VI Super 104U Case No ST 12 CV 231 Memorandum Opinion & Order Page 4 of 10

a Rule 60(b)(2) standard

1|10 To satisfy Rule 60(b)(2), said evidence must have been discovered after trial and the failure to learn must not have been caused by a lack of diligence '2 Further, the “evidence must be material to the issues involved, yet not merely cumulative or impeaching and must be of such a nature that it would probably change the outcome '3 The teIm ‘newly discovered evidence refers to evidence of facts in existence at the time of trial of which the aggrieved party was excusably ignorant ’ '4 1111 The Court finds several cases from the Virgin Islands Supreme Court and the Third Circuit helpful in elucidating these rules '5 While these cases take place prior to the adoption of the Virgin Islands rules and are instead based on the Federal Rules of Civil Procedure, the Court notes that in the instant case the Virgin Islands rules mirror the FED R Clv P '6 ‘|12 In Rut v Jung,I7 the Court denied a temporary restraining order on December 19, 2007 in a child custody case '8 Thereafter, the mother filed an unsworn letter from a clinical social worker who said the day after the denial that she interviewed the minor who told her that she had been touched [on] her private area ’ '9 In considering the Rule 60(b)(2) question, the Virgin Islands Supreme Court stated we fail to see how the social worker 8 statement or opinion could be considered newly discovered evidence Nor can we discern any reason why [the social worker’s] statement could not have been brought to the family court 8 attention at an earlier point in the proceedings through the exercise of reasonable diligence 2° Thus in Ruiz, although the letter came into existence after the hearing, the material within it could have been discovered beforehand with reasonable diligence Further, the underlying event alleged in the letter was an event which reportedly happened prior to the hearing that still did not make the letter “newly discovered evidence ”

1’ Strldlron v Strldtron 698 F 2d 204 207 (3d Cir 1983) see also Appleton v Harrtgan Case No ST 10 CV 275 2013 V I LEXIS 13 at ‘6 (quoting Henry v Hess 011 Virgin Islands Corp 33 V I 163 171 (D V I 1995)) (The movant must show that the newly discovered evidence could not have been discovered prior to trial through the exercise of reasonable diligence ”’) n Id (citing (mtedStates v Meyers 484 F 2d 113 116 (3d Cir 1973)) '4 Bohus v Belofl 950 F 2d 919 930 (3d Cir 1991) (quoting United States v 27 93 Acres ofLand 924 F 2d 506 (3d Cir 1991)) " Outside of this jurisdiction the Court finds persuasive the cases of Banks v Thomas, CIVIL NO 11 301 GPM, 2012 U S Dist LEXIS 13904 (S D 111 2012) (expert report by psychiatrist which was created afier trial for another case but detailed how abruptly ending psychotropic medication could have caused plaintiff to be insane, was not ‘newly discovered evidence )' Anlome v Oxmoor Pres One LLC 130 So 3d 1204 (Ala Civ App 2012) (deeds, tax assessor document, and ‘tree report" which were created after trial did not constitute “newly discovered evidence ’ because they were created later) Cole v Cole 370 S E 2d 272 (N C App 1988) (child born after trial could not constitute “newly discovered evidence" of fertility in a paternity suit since the child was not even conceived at time of trial) '6 Cf FED R CW P 60(b)(2) (6) with V 1 R Civ P 60(b)(2) (6) '7S Ct Civ No 2008 035 2009Vl Supreme LEXIS 43 (VI Oct 19 2009) (unpublished) '3 Id at *3 ‘° Id at *3 4 2° Id at '12 13 Basu: Services, Inc v Government ofthe Virgin Islands Cite as 2020 VI Super 1041.: Case No ST 12 CV 23! Memorandum Opinion & Order Page 5 of 10

1113 Particularly on point is Betterbox Communications Ltd v BB Technologies Inc 2' In this trademark infringement case, Betterbox appealed a declaratory judgment against it partly on Rule 60(b) grounds The trial court had allowed a trademark registration certificate from the United States Patent and Trademark Office ( Patent Office ’) into evidence since there was not an official writing from the Patent Office that the registration was going to be revoked or canceled, although an employee of counsel for BB Technologies had spoken with a Patent Office official by phone before trial and had learned that the registration was inadvertently issued and would be canceled once the Patent Office found the file 22 About three weeks after trial, the Patent Office issued a formal notice that the trademark application would be canceled and restored to pending status 23 1|l4 The Third Circuit in Betterbox declared that the notice of cancellation of the Betterbox registration cannot qualify as newly discovered insofar as it simply shows that the Betterbox registration was canceled This is so because the fact of cancellation was not in existence at the time of trial 24 Additionally, the court reasoned that even if the fact of cancellation had existed, Black Box did not exercise due diligence The court stated that Black Box did not attempt to depose or subpoena anyone from the [Patent Office] ”25 While recognizing that the Patent Office would have refilsed to provide any evidence about an internal decision that had not been officially released the court still highlighted that the fact remains that Black Box did not take the obvious steps that would have demonstrated this 2‘ Lastly, the court noted that ‘ Black Box also did not ask for a trial continuance for the purpose of obtaining evidence that cancellation was imminent” and stated that it would have viewed the appeal differently if Black Box had been denied such a continuance 27 '|15 Conversely, in Strzdzron 1 Strzdzron 28 the Third Circuit did find that newly discovered evidence could have changed the outcome of a proceeding and ordered a rehearing 29 In that case, a plaintiff denied in a discovery interrogatory the existence of a prior marriage, which took a defendant significant amount oftime to uncover and could have materially changed the distribution of real estate 3° The Third Circuit found that “plaintist failure to provide information uniquely within his knowledge effectively foreclosed defendant from presenting her claim for annulment at trial ”3' Further, the court found that the defendant had been diligent and was not causing undue delay the defendant had been trying to locate the record, and the court recognized “the delays in the mails to the Virgin Islands and the difficulties encountered in the search of official records in

2' 300 F 3d 325 (3d Cir 2002) 22 Id at 330 31 2’ 1d ’4 Id 5 [d at 332 ’6 Id 27 Id at 332 2“ 698 F 2d 204 205 (3d Cir 1983) ”Id at 208 3° 1d at 205 207 3' Id at 207 Basw Services, Inc v Government ofthe Virgin Islands Cite as 2020 VI Super 104U Case No ST 12 CV 231 Memorandum Opinion & Order Page 6 of 10

large cities 32 Notably, the document here a certified copy of a marriage certificate was based on a written record which was in existence before the trial 33 b Rule 60(b)(6) Standard

1116 As for Rule 60(b)(6), ‘ [t]he movant must show extraordinary and special circumstances justifying reliefI ] ’34 Further, Rule 60(b)(6) is mutually exclusive of the rules preceding it, and if the reason for which relief is sought fits within one of the five specific categories, even if the facts fail to meet the prerequisites for that relief, Rule 60(b)(6) is inapplicable 35 Rule 60(b)(6) is only appropriate “under extraordinary circumstances where, without such relief, an extreme and unexpected hardship would occur ’36 Lastly, Rule 60(b) cannot be employed simply to rescue a litigant from strategic choices that later turn out to be improvident a party that has stipulated to certain facts or has not presented known facts helpfiJl to its cause when it had the chance cannot ordinarily avail itself on rule 60(b) after an adverse judgment has been handed down ”37 [1! ANALYSIS

a Basic’s Rule 60(b)(2) claim for relief fails because the Letters were not in existence before judgment and Basic did not exercise due diligence

1117 It is Basic 8 assertion that while the Letters were not in existence prior to the Court 8 ruling, the facts in them were namely that the appointment of a Basic employee to the vendor evaluation committee which caused USAC s denial of handing due to the violation of the competitive bidding procedures, was a fact that occurred prior to the trial 38 Basic also asserts that they could not discover the reason for USAC s denial because the investigation was ongoing and

3 Id at 206 331d

3“ Lucan Corp v RoberIL Merwm& Co 8 Ct Civ No 2007 15 2008 VI Supreme LEXIS 19 at *7(V1 Jan 3 2008) (citing Page v Schwezker 786 F 2d 150 158 (3d Cir 1986)) (unpublished) ’5 Kttnurse v Marshall & Sterling 2020 VI Super 60 1115 (citing Grlflilh v Carpenter 2012 V I LEXIS 84 at *5 (VI Super Ct June7 20l2)) 3" Sawka v Healtheast Inc 989 F 2d 138 (3d Cir 1993) (citing Lasky v Continental Products Corp 3 Good Luck Nursing Home Inc v Harris, 636 F 2d 572 577 (D C Cir 1980) (citing Marshall v Board ofEduc 575 F 2d 417 424 (3d Cir 1978) Federal s Inc v Edmonton Investment Co 555 F 2d 577 583 (6th Cir 1977) Couch v Travelers Insurance Co , 551 F 2d 958 959 (5th Cir 1977)‘ Lubben v Selective Serv Sys Local Bd No 2 453 F 2d 645 651 52 (1st Cir 1972) 11 C Wright & A Miller Federal Practice & Procedure § 2858 at 170 73 (1973)) ’3 Pl 5 Mem in Supp of Renewed Mot for Relief from J and Order, 6 While Basic throughout its motions lays this wrong squarely at the feet of the Government, the Court notes that ‘it takes two to tango ’ and it was Basic who benefitted from the evaluation committee 5 selection Basrc Services, Inc v Government ofthe Vlrgm Islands Cite as 2020 VI Super 104U Case No ST 12 CV 231 Memorandum Opinion & Order Page 7 of 10

USAC had not yet disclosed their decision 39 Boldly charging VIDOE with insider knowledge of USAC’s investigation,4o Basic asserts it could not with due diligence find out this information 4' 1118 In essence, Basic is declaring that while the reasoning for the denial did not exist before the Court 3 judgment, the fundamental reason did, and thus USAC’s decision and reasoning as represented by the Letters is actually newly discovered evidence of facts that existed before the judgment although occurring later so it could not be discovered This train of logic is an ouroboros Simply put, what was then in existence was an investigation, not USAC s decision and reasoning for that decision, and certainly not the Letters Basic s employee being on the evaluation committee was a fact, but USAC’s ultimate decision or reasons for it were at that time mere conj ecture At the time of summary judgment, it was not the Court s duty to speculate why USAC might have denied funding, but to rule on the breach of contract claims before it with the facts then in existence the appointment of Basic 3 employee to the committee being the reason for the nonpayment was not then in existence and could not be the basis for a breach of contract claim 1119 The Letters, like the unswom letter in Ruiz acquired the day after the hearing or the notice of the trademark revocation arriving three weeks afier the trial in Betterbox, and unlike the maniage certificate in Strzdlron, are documents containing new information that USAC was denying payments based on competitive bidding violations which simply were not in existence at the time of the Court’s summary judgment Like the alleged molestation in RUIZ, the abrupt end to psychotropic medication in Banks, the land in Antome, or the communication in Betterbox that the application would be denied, these documents may contain facts that existed in the past such is the nature of linear time That the Letters assert in their reasoning facts that existed prior to the summary judgment does not change the fact that USAC s investigation concluded after summary judgment The Government 3 appointment of Basic’s employee could not be the reason for USAC s denial of payments until USAC made it the reason for the denial in the Letters

1120 However, even assuming arguendo that it is really the fact of the appointment (and not USAC s ultimate denial because of that fact) that is the newly discovered evidence at issue here

’9 Basic asserts in its Memorandum in Support of Motion for Relief from and Order and To Amend Complaint on pages 5 6 that “In this instance, until the SLD [School and Library Division] completed its investigation and made the findings contained in the December denial letters, Basic had no way of forcing the government to a decision or to prematurely disclose that decision Basic repeatedly attempted to get information from the U S Department of Justice as to the reason for nonpayment These inquiries were always met with the response that “The matter is under investigation ’ The reason SLD denied the finding commitment for Years 8 and 9 was infomation that was uniquely within the V I Government 5 knowledge because only the V I Department of Education knew what individuals were on the vendor evaluation committee and that it placed an employee of Basic on that committee in violation of the competitive bidding rules 4° In its Memorandum in Support of Second Renewed Motion for Relief from Judgment and Order page 8, Basic states [T1he Government corresponded with SLD 11SAC by email and postal mail to ask about the status of the funds As discussed, the Government caused the nonpayment by violating the competitive bidding rules This fact, together with the Government 5 inquiries to SLDUSAC and SLDLSAC s investigation strongly suggests that the Government knew or should have known ofthe reason for the nonpayment ’ There is a large leap of logic here Simply because the Government, as it was contractually obligated to do, communicated with USAC in order to assist Basic in securing payment does not in any way indicate that it would know of an investigation or know the reasons for it " Pl 5 Mem in Supp of Mot for Relief from an Order and To Amend Comp] 6 Basu- Servzces, Inc v Government ofthe Virgin Islands Cite as 2020 VI Super 104U Case No ST 12 CV 231 Memorandum Opinion & Order Page 8 of 10

Basic 5 assertions must still fail This is because Basic did not exercise reasonable diligence in uncovering this evidence Like in Betterbox, Basic was aware there was a pending investigation, yet made no attempt to depose anyone at the Department of Justice or USAC, made no attempts to issue subpoenas, or, even more damagingly, did not seek a continuance or stay pending the results of the investigation Nor did Basic even notify the Court that there was an ongoing investigation until after judgment

1|21 Even more bewilderingly, Basic asserts that the knowledge that Basic through its agent and employee, was on the vendor evaluation committee is information that was “uniquely within the V I Government s knowledge because only the VI Department of Education knew what individuals were on the vendor evaluation committee and that it placed an employee of Basic on that committee in violation of the competitive bidding rules ”42 Once more, assuming arguendo Basic was ignorant of the fact that its own employee was also in the position to hand Basic a lucrative government contract due to his appointment to a evaluation committee, the Court strains to see how this information would be uniquely within the Government 3 knowledge and not uncoverable through due diligence Basic had the ability to depose its own current and former employees and contract bidding is a process open to the public 43 Basic always had the ability to uncover the appointment of its employee to the contract selection committee with reasonable diligence and to discern, or at least more thoroughly attempt to discern, that this was why USAC might refuse to pay

$22 Thus, because Basic 8 claim that the Government breached its duty by causing the nonpayment through breach of the covenant of good faith rests on evidence not in existence at the time ofjudgment USAC’s denial and reasoning in its Letters its Rule 60(b)(2) claim must fail Even assuming the fact that Basic’s employee 5 appointment by the Government does qualify as newly discovered evidence, Basic’s claim must still fail because Basic did not exercise reasonable diligence in uncovering that fact by attempting to discover what USAC s reasoning might be beyond phone calls to the office or staying proceedings until the investigation was complete

b Basic’s Rule 60(b)(6) claim for relief fails because Basic’s reason for relief fits into another category and this is not an extraordinary circumstance

$23 As Basic recognizes by asserting it first, the reason behind Basic s Rule 60(b) claim is most closely related to the ‘ newly discovered evidence ’ category Rule 60(b)(6) claims are catchalls for extraordinary circumstances and situations which the rule drafters did not anticipate not a catchal] for plaintiffs who fail the requirements of other rules Thus, Basic s Rule 60(b)(6) must fail as excluded in accordance with this Court’s ruling in Kztnurse “

‘2 Pl 3 Mem in Supp of Mot for Relief from an Order and To Amend Compl , 6 4’ See generally, 31 V I C § 236(c) ( ‘The bids shall be opened in public at the time and place stated in the newspaper notices ") ‘4 See, Kitnurse 1], 21 ( Regardless reliefcannot be granted under Rule 60(b)(6) if the reason for which relief is sought fits within another category of Rule 60(b) ') 311316 Services, Inc v Government ofthe Virgin Islands C ite as 2020 VI Super lO4U Case No ST 12 CV 231 Memorandum Opinion & Order Page 9 of 10

'124 Further, assuming that the “newly discovered evidence category did not exist, this situation is not so extraordinary so as to justify relief Basic knew an investigation was ongoing It seems that, whether as a litigation strategy or as an oversight, Basic did not put before the Court the investigation being conducted on it or seek to delay the Court’s ruling until after the investigation was completed Rule 60(b)(6) is not made to save plaintiffs from the choices they made in prior litigation As the Supreme Court stated while deciding a Rule 60(b) issue in Ackermann v Lmted States,45 “[t]here must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from ”4‘5

IV CONCLUSION 1125 Basic comes before the Court seeking to reopen and relitigate a case that had been pending before this Court for five years, based on facts from 2004, and that has been appealed to and decided on by the Virgin Islands Supreme Court Basic asks the Court to reopen this case based on Virgin Islands Rules of Civil Procedure 60(b)(2) and 60(b)(6), which allow this Court to provide relief from judgment based on newly discovered evidence or other extraordinary circumstances

1:26 The basis for its claim is several letters written several months after this Court issued its summary judgment, which explained that USAC was denying funding to Basic because of violations of the competitive bidding procedures to wit, a Basic employee was on the VIDOE evaluation committee that chose Basic to provide intemet and telecommunications services for the St Thomas and St John school district Basic claims that the Government by appointing one of Basic’s employees to the evaluation committee, violated the covenant of good faith inherent in every contract and thus caused USAC s nonpayment

{[27 However, before the Court can address these arguments, Basic must show it has satisfied the strictures of V I R Clv P 60(b) Basic has not The Letters are evidence of facts which came into being after judgment was awarded, the denial and reasoning of USAC’s nonpayment Further, assuming that Basic was ignorant of its own employee being on the evaluation committee, Basic did not exercise reasonable diligence in attempting to figure out why USAC might deny payment and did not attempt to stay or continue the case until the investigation was complete, which would have resulted in disclosure of this information Thus it does not satisfy the requirements of Rule 60(b)(2) Similarly, Basic is excluded from using Rule 60(b)(6) because its reason for relief fits another category, and the decision to proceed in Court before the investigation was completed was either an oversight or a purposeful litigation strategy, not an extraordinary circumstance '128 Accordingly, it is hereby

ORDERED that Plaintiff‘s Second Renewed Motion for Relief from Judgment and Order, filed on August 23 2019 is DENIED and it is further

45 340 U S R93 (1950) ‘6 Id at 198 Bane Services, Inc v Government ofthe Virgm Islands Cite as 2020 VI Super lO4U Case No ST 12 CV 231 Memorandum Opinion & Order Page 10 of 10

ORDERED that Plaintiff’s Renewed Motion for Relief from Judgment and Order, filed on June 17, 2019, is DENIED as moot, and is it further

ORDERED that Plaintiff‘s Motion for Relief from an Order and to Amend Complaint, filed on May 3, 20l8, is DENIED as moot and it is further

ORDERED that a copy of this Memorandum Opinion and Order shall be directed to Attorney Robert L King and Assistant Attorney General Ariel M Smith

DATED December Lo_ 2020 MW iMUfl DENISE M FRANCOIS Judge of the Superior Court of the Virgin Islands ATTEST

TAMARA CHARLES Clerk of the Court

By Q&uflM ’M' LORI BOYNES Chief Deputy Clerk_/_.2. I [Z /.20.zb