Gerard Christian v. Walter Pedersen, M.D. and Virgin Islands Hospital and Health Facilities Corporation

2021 VI Super 73U

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

GERARD CHRISTIAN PLAINTIFF, Civil No SX 18 CV 217 v ACTION FOR DAMAGES

ISLANDS HOSPITAL AND HEALTH FACILITIES CORPORATION CITE AS 2021 VI SUPER '3 $11 DEFENDANTS

Appearances Lee J Rohn, Esq Lee J Rohn and Associates, LLC Christiansted, U S Virgin Islands For Plamtlfl

Royette V Russell, Esq Virgin Islands Department of Justice Kingshill, U S Virgin Islands For Defendants

MEMORANDUM OPINION AND ORDER WILLOCKS Presiding Judge

THIS MATTER is before the Court sua sponte BACKGROUND

Y, 1 On January 22 2020, the Court entered an order whereby the Court granted in part and denied in part Plaintiff Gerard Christian’s (hereinafter “Plaintiff”) motion to compel Walter Pedersen, M D (hereinafter “Pedersen”) to supplement discovery responses, filed on September 17, 2019, ordered Pedersen to supplement his responses to Interrogatory Nos 6, 15, 16, 17, and 19 and his responses to Demand for Production No 25 by making available for inspection or producing the requested documents, ordered Pedersen to show cause in writing why Pedersen or Pedersen’s attorney, Royette Russell, Esq , should not be required to pay Plaintiff‘s reasonable

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Pedersen to comply with the order within thirty days 1] 2 Pedersen never filed anything in response to the Court’s January 22, 2020 order ordering Pedersen to show cause in writing why Pedersen or Pedersen’s attorney, Royette Russell, Esq , should not be required to pay Plaintiff‘s reasonable expenses pursuant to Rule 37(a)(5) of the Virgin Islands Rules of Civil Procedure 1] 3 On June 12, 2020, the Court entered an order (hereinafier “June 12, 2020 Order”) whereby the Court granted Plaintiff’s motion for sanctions, filed on March 13, 2020, ordered Pedersen to supplement his responses to Plaintiff‘s written discovery requested within five days unless he has already done so, ordered Pedersen to pay Plaintiff a sum of Four Hundred Dollars ($400 00) in attorney’s fees as the cost of Plaintiff’s motion for sanctions within ten days, ordered Plaintiff to file an affidavit of costs and fees incurred in filing the original motion to compel discovery with the amount therein also awarded to Plaintiff, and ordered that additional discovery violations will result in additional sanctions, which may include striking Dr Pederson’s affirmative defenses, additional monetary penalties, or deeming the Plaintiff’s allegations as admitted 1] 4 On June 17, 2020, Plaintiff filed a notice of filing affirmation of fees and costs pursuant to the June 12 2020 Order STANDARD OF REVIEW

1] 5 Rule 37 of the Virgin Islands Rules of Civil Procedure (hereinafter “Rule 37”) governs the payment of expenses when a motion is granted, denied, or granted in part and denied in part Rule 37(a)(5)(C) provides that “[i]f the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, afier giving an opportunity to be heard, apportion the reasonable expenses for the motion ” V I R Clv P 37(a)(5)(C) Reasonable

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expenses include attomey’s fees See V I R Cw P 37(a)(5)(A) (“If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees ”)

DISCUSSION

1] 6 In the affirmation attached to Plaintiffs notice, Plaintiff’s counsel, Lee Rohn, Esq , affiimed that “[t]he total fees at $400 00 an hour, Plaintiff requests to be awarded against Defendant is 6 25 hours for $2,500 00 ” (June 17, 2020 Affin'nation) Upon review of Plaintiffs counsel’s affirmation, it appears that Plaintiff mcluded the fees for both motion to compel discovery and motion for sanctions ‘ However, the June 12, 2020 Order already ordered Pedersen to pay Plaintiff a sum of Four Hundred Dollars ($400 00) in attorney’s fees as the cost of Plaintiff’s motion for sanctions and only ordered “Plaintiff to file an affidavit of costs and fees incurred in filing the original motion to compel discovery with the amount therein also awarded to Plaintiff ”

' In the affmnation, Plaintiff‘s counsel affirmed 1 1 make this affirmation of my own personal knowledge 2 Reviewing discovery, including discovery insufficiency letter dated August 19, 2018, and September 11 20l9 and Motion to Compel on September 19 2019, l 5 hours 3 On September 26, 2019, reviewing of Defendant’s Opposition to Motion to Compel, 50 4 On January 27 2020 drafi Reply to Opposition to Motion to Compel l 0 hour 5 January 28, 2020, review Court's Order on Motion to Compel, 50 6 February 27, 2020, draft Motion for Sanctions for failing to Supplement, as ordered by the Court, 1 0 hour

7 February 28, 2020, review Defendant’s Opposition to Motion for Sanctions, 25 8 March I8, 2020, Reply to Opposition to Motion for Sanctions, 50 9 June 12, 2020 review Court’s Order granting sanctions, 25 10 June I6, 2020 draft affirmation for fees, 75 The total fees at $400 00 an hour, Plaintiff requests to be awarded against Defendant is 6 25 hours for $2 500 00 (June 17 2020 Affimlation )

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(June 12, 2020 Order) (emphasis added ) Thus, in this order, the Court will only address the fees Plaintiff incurred in the filing of Plaintiff‘s motion to compel discovery 11 7 Here, Plaintiff’s counsel’s affirmed that 3 5 hours2 were expended in connection with Plaintiff’s motion to compel discovery at the rate of $400 00 per hour, for a total of $1,400 00 Per Rule 37, the Court must determine the reasonableness of the attorney’s fees and then the Court may apportion the fees since Plaintiff s motion to compel discovery was granted in part and denied in part A Reasonableness

1| 8 In Meyers v George, the court stated

the Court notes that much of Virgin Islands jurisprudence regarding the reasonableness of an award of attorney’s fees and costs pertains to awards to prevailing parties under 5 V I C § 541 Though Court is awarding attorney's fees and costs as a monetary sanction against Plaintiff, as opposed to as a prevailing party, the Court looks to this jurisprudence for guidance, as it is reflective of the process employed by the Court in assessing the reasonableness of attorney's fees and costs

2016 VI LEXIS 231 at *4 5 (Super Ct Oct 25 2016)

The Court shares the sentiment, and thus will similarly look to the factors that the Virgin Islands courts consider when determining the reasonableness of the attorney's fees for the prevailing party namely the time and labor required, the novelty and difficulty of the issues involved, the level of skill needed to properly conduct the case, the customary charges of the bar for similar services, the amount involved in the controversy, the benefits resulting to the client from the services, and the contingency or certainty of compensation See Jud: s ofSt Crozx Car Rental v Weston 2008 V I Supreme LEXIS 21 *3 (V I 2008) 3

2 See supra, footnote 2, 1[1|2 5 3 While the Jud: s court addressed the reasonableness ofthe attorney's fees requested pursuant to Supreme Court Rule 30, Virgin Islands courts have nevertheless found its analysis helpful and considered the factors discussed in Jud: s when determining the reasonableness of the attomey’s fees under Title 5 V I C {5 541 See eg High Tamas V1 Enterprises LLCv Hafiz Ahmad Rahhal 2021 V1 Super 42 n 12 (Super Ct 2021) Kokmdav Thelusma 2017 V1

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1| 9 First, the Court reviews the time and labor expended in this matter According to Plaintiff‘s counsel’s affirmation, 3 5 hours were expended in connection with Plaintiff‘s motion to compel discovery to wit, review discovery, including discovery insufficiency letters dated August 19 2018 and September 11, 2019, draft motion and reply, review Pedersen’s opposition, and review the Court’s January 22, 2020 order The Court finds the services rendered and the time spent by Plaintiff‘s counsel to be reasonable 11 10 Second, the Court evaluates the novelty and difficulty of the issues involved The Court finds that the issues involved in the motion to compel discovery is neither novel nor complex 11 11 Third, the Court evaluates the level of skill required of counsel to properly file the motion to compel discovery As noted above, the issues involved in the motion to compel discovery is neither novel nor complex This means that counsel was only required to have a basnc understanding of the applicable discovery rules and basic drafting skills to properly file the motion to compel discovery The Court finds that the filing of the motion to compel discovery did not require a high degree of skill by counsel 1] 12 Fourth, the Court compares the hourly rate charged in this matter with the customary charges of Virgin Islands attorneys According to Plaintifl‘s counsel’s affirmation, her rate 15 $400 00 per hour The Court finds that Plaintiff‘s counsel’s rate of $400 00 per hour is on the high end of the customary and prevailing market rates charged in the Virgin Islands and will therefore adjust the hourly rate to $350 00 per hour See e g Hzgh Times VI Enterprzses LLC, 2021 V I Super 42, at 1] 26 (“The Court finds that Plaintiff s counsel’s rate of $350 00 per hour to be consistent with the customary and prevailing market rates that similarly experienced attorneys

LEXIS 132 ’8 n 3 (Super Ct Aug 18 2017)‘ Banco Popular de P R. v David 2017 V I LEXIS S6 ‘7 n 4 (Super Ct Apr 3 2017)

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charge in the U S Virgin Islands ) Bank ofAm N A v Taylor 2019 V1 LEXIS 173 at *4 5 (Super Ct Sept 9, 2019) (finding the attomey’s hourly rate of $350 00 to be consistent with the hourly rates of a trial counsel who “has been practicing law for 37 years and was admitted to the Virgin Islands Bar in 2005 )' Freund v Liburd 2017 VI LEXIS 184 at *6 (Super Ct Dec 20 2017) (finding the attorneys’ hourly rate of $250 00 and the managing attorney’s hourly rate of $350 00 “consistent with the customary charges of similarly experienced attorneys of the Virgin Islands Bar”); Yearwood Enters v Antilles Gas Corp , 2017 VI LEXIS 171, *5 (Super Ct Dec 5, 2017) (finding the hourly rate of $350 00 is “in line with the customary and prevailing market rates for attorneys in the Virgin Islands”), Interocean Ins Agency v Joseph, 2014 V I LEXIS 73, *10 (Super Ct Sept 12 2014) (unpublished) (the court accepted the attorney 3 hourly rates of $350 00 for in court services and $300 00 for other services as “fair and reasonable for an attorney with his experience and record”) 11 13 Fifih, the Court considers the benefits resulting to Plaintiff from the services Here, as the result of the filing of the motion to compel, the Court ordered Pedersen to supplement some additional discovery responses The Court finds that Plaintiff benefited from the service of its counsel 11 14 Based on the Court’s analysis of the above factors,4 the Court will adjust the hourly rate from $400 00 per hour to $350 00 per hour for 3 5 hours for a total amount of $1 225 00 B Apportionment 1[ 15 The Court will now apportion the reasonable expenses In the January 22, 2020 order, the Court granted six out of the eleven requests made by Plaintiff in his motion to compel discovery

4 The Court finds the two remaining factors—the amount involved in the controversy and the contingency or certainty :3::1:::nsation—not applicable when determining the reasonableness of the attomey’s fees in the context of

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to wit, the Court granted Plaintiff’s motion as to Interrogatory Nos 6, 15, I6, 17, and 19 and Demand for Production No 25 but denied Plaintiff’s motion as to Interrogatory No 21 and Demand for Production Nos 12, 20, 30, and 31 Thus, the Court will award six eleventh (6/11) of the $1,225 00, which equals $668 18, in sanctions CONCLUSION

11 16 Based on the foregoing, the Court w111 order Pedersen to pay Plaintiff a sum of Six Hundred and Sixty Bight and Eighteen Cents ($668 18) for reasonable expenses Plaintiff incurred in filing the motion to compel discovery Accordingly, it is hereby ORDERED that, within fifteen (15) days from the date of entry of this Memorandum Opinion and Order, Pedersen shall PAY Plaintiff a sum of Six Hundred and Sixty Eight and Eighteen Cents ($668 18)

DONE and so ORDERED this day of June 2021

ATTEST E ééé {f a Z %(ZZZ: ’6 Tamara Charles HAROLD W L WILLOCKS Clerk of the Court Presiding Judge of the Superior Court

By W C urt Clerk Mari

Dated g2/3gé’052