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

• Court: Superior Court of The Virgin Islands
• Decided: June 29, 2021
• Docket: SX-18-CV-217
• Status: Unpublished

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 v1 SUPER 58 u DEFENDANTS

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

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

MEMORANDUM OPINION AND ORDER

WILLOCKS Presiding Judge

‘1 l THIS MATTER came before the Court on Defendant Walter Pederscn MD s

(hereinafter ‘ Pedersen’ ) motion for reconsideration of the Court 5 June 12 2020 order, filed on

June 16 2020 As of the date of this order no opposition has been filed in response

BACKGROUND

‘l[ 2 On June 13 2018 Plaintiff Gerard Christian (hereinafter Plaintiff) filed a complaint

against Pedersen and Juan Luis Hospital through the Government of the Virgin Islands (hereinafter

“JLH”) ‘

l A first amended complaint was subsequently tiled However for the purpose 0t this memorandum opinion and order the first amended complaint is not relevant Christian v Pedersen eta! SX [8 CV 2l7 Memorandum Opinion and Order 2021 VI SUPER flu Page 2 of 8

‘ll 3 On January 22, 2020, the Court entered an order whereby the Court granted in part and

denied in part Plaintiff’s motion to compel Pedersen to supplement discovery responses filed on

September 17 2019 ordered Pedersen to supplement his responses to lnterrogatory Nos 6 15

l6 l7 and I9 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 expenses pursuant to Rule 37(a)(5) of the Virgin Islands Rules of Civil Procedure and

ordered Pedersen to comply with the order within thirty days

‘11 4 On June I2 2020 the Court entered an order (hereinafter 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 in attorney 3 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 In the J une 12 2020 Order the Court

explained

The Plaintiff requests sanctions on the grounds that on January 22 2020 the Court ordered Defendant Pederson to supplement discovery responses and make discovery available to the Plaintiff within thirty days Dr Pederson was also ordered to show cause why the Plaintiff’s reasonable attorney fees should not be paid because the Court had granted the Plaintiff’s motion to compel discovery However Dr Pederson did not comply with the Court’s orders in a timely manner

In the Opposition, Dr Pederson asserts that the matter is moot because the discovery was ready on February 22 2020 and was not filed because he was not available Christian I Pedersen et a! SX 18 CV 2l7 Memorandum Opinion and Order 2021 V1 SUPER bx IA Page 3 of 8

to give an original signature due to travel arrangements As noted by the Plaintiff in the Reply the Defendants are not exempt from obeying the orders of this Court or the Rules of Civil Procedure

(June 12 2020 Order)

‘|[ 5 On June 16, 2020, Pedersen filed this instant motion for reconsideration of the Court 5 June

12 2020 Order

STANDARD OF REVIEW

‘1 6 Motions for reconsiderations are governed by Rule 6 4 of Virgin Islands Rule of Civil

Procedure (hereinafter Rule 6 4’ ) Rule 6 4 provides that a party may file a motion asking the

court to reconsider its order or decision within 14 days after the entry of the ruling unless the time

is extended by the court V I R Cw P 6 4(a) Rule 6 4 further provides that [a] motion to

reconsider must be based on (1) intervening change in controlling law, (2) availability of new

evidence (3) the need to correct clear error of law or (4) failure of the court to address an issue

specifically raised prior to the court 5 ruling” and that [w]here ground (4) is relied upon, a party

must specifically point out in the motion for reconsideration where in the record of the proceedings

the particular issue was actually raised before the court ’ V I R CIV P 6 4(b), see also Arvtdson

’ In his motion. Pedersen stated that he filed his motion for reconsideration of the Court 5 June [2, 2020 Order pursuant to Rule 59(e) and Rule 60(b) of the Virgin Islands Rules 0t Civil Procedure Rule 59(e) of the Virgin Islands Rules of Civil Procedure (hereinafter“Ru|e 59(e) ) governs motions to alter or amendajudgment ” VI R Ctv P 59(e) Rule 60(b) of the Virgin Islands Rules of Civil Procedure (hereinafter Rule 60(b)”) governs motions to relieve “a party or its legal representative fromafinal judgment order or proceeding V] R Clv P 60(b) However the Court sJune 12 2020 Order is not a judgment a final order nor a final judgment The fact that Pedersen expressly evoked Rule 59(e) does not in and of itself cause the motion to arise pursuant to Rule 59(e) or Rule 60(b) As such the Court finds that Rule 59(e) and Rule 60(b) are not applicable in this instance Nevertheless this is not a fatal error to Pedersen s motion The Virgin Islands Supreme Court has repeatedly held that the substance of a motion and not its captaint shall determine under which rule that motion is construed Island Ttle & Marble LLC v Bertrand 57 V I 596 612 (2012) (quoting Joseph v Bureau ofCorrecnons 54 V I 644 648 n 2 (V I 201 1)) see also Rodngue7 v Bureau of Corr 70 V I 924 928 n I (V I 2019) Based upon the substance of Pedersen s motion the Court will construe it as a motion for reconsideration pursuant to Rule 6 4 of the Virgin Islands Rules of Civil Procedure which provides that [elxcept as provided in Rules 59 and 60 relating to final orders or judgments a party may file a motion asking the court to reconsider its order or decision V l R Ctv P 6 4(a) Christian v Pedersen eta! SX 18 CV 217 Memorandum Opinion and Order 2021 VI SUPER bx“ Page 4 of 8

v Buchar 72 VI 50, 64 (Super Ct Nov 4 2019) ( motions for reconsideration must be based

on one of the grounds delineated in Rule 6 4(b) )

‘][ 7 A motion for reconsideration ‘[i]s not a vehicle for registering disagreement with the

courts initial decision, for rearguing matters already addressed by the court or for raising

arguments that could have been raised before but were not Worldwzde Flight Servzces v

Government of the Virgin Islands 51 V I 105 110 (VI 2009) (quoting 305‘th v AT&T of the

Virgin Islands 45 V I 553 312 F Supp 2d 731 733 (D V I 2004)) Generally [a] motion for

reconsideration is not a second bite of the apple [Instead it serves] to focus the parties on the

original pleadings as the main event and to prevent parties from filing a second motion with the

hindsight of the [Clourt 5 analysis covering issues that should have been raised in the first set of

motions Smith v Law 0177c“ of KarmA Bentz P C 2018 VI LEXIS 13 *15 (Super Ct Jan

29 2018) (citing to In re Infant Sherman 49 V I 452 457 (V I 2008)) In determining a motion

for reconsideration the Court should operate under ‘the common understanding that

reconsideration is an extraordinary remedy not to be sought reflexively or used as a substitute

for appeal See In re Infant Sherman 49 V I at 458

DISCUSSION

‘I[ 8 In his motion Pedersen argued that the Court should reconsider the June 12 2020 Order

sanctioning Pedersen because Pedersen had good cause for complying with the Court order a

mere five days after the deadline (Motion p 1 ) Pedersen made the following assertions in

support of his argument (i) ‘The supplementation at issue was defendant s third supplement to

discovery and [t]he fact that the Court denied in part and granted in part plaintiff‘s motion to

compel the discovery responses means that defendant had legitimate objections to plaintiff’s

discovery demands (Id ) (ii) Additionally as stated in defendants reSponse to plaintiffs motion Christian v Pedersen et a1 SX 18 CV 2l7 Memorandum Opinion and Order 2021 v1 SUPER flu Page 5 of s for sanctions the responses ordered by the Court were ready within the time limit ordered by the

Court and ‘[i]t is clear from defendants conduct that there was no intent to violate the Court 5

Order more specifically ‘ [t]he Certification of the responses establishes that defendant

Pedersen signed the responses on February 20, 2020 “[t]he undersigned was not able to receive

the original signature page until February 24 2020 the following workday and [t]hey were then

emailed to the undersigned after 5 p m on February 2|, 2020, which was a Friday ’ (Id at pp 1

2 ) (iii) The Court 5 thirty day deadline of February 22 2020 fell on a Saturday and the responses

were filed the following Wednesday’ and [t]hus the responses were prepared timely but filed a

mere three (3) days after the deadline (Id at p 2 ); (iv) The undersigned notes that the Court 5

docket sheet does not reflect that the responses were filed on February 27 2020 although the

NotiCe of Service is stamped by the Court on that date (Id ), (v) Most notably plaintiff’s motion

for sanctions is dated February 27, 2020 the same day she was served with defendant 5 responses,

and ‘[t]herefore her motion was not warranted and was rendered moot because defendant had

already complied ’ (Id ) (vi) Accordingly, sanction in this case is unwarranted because it is based

on a single infraction for which there is a legitimate mitigating excuse 1 (Id ), (vii) This is so

eSpecially where defendant had supplemented discovery on two prior occasions and the conduct

at issue here is neither egregious nor flagrant (Id ) (viii) “In this case the provision of this third

supplement to discovery does no harm to the plaintiff nor the court and ‘ Plaintiff received these

responses almost four (4) months ago and nothing has transpired in this case since then’ to wit

[d]iscovery is still ongoing no depositions have been conducted there has been no mediation and

no trial date has been scheduled by the Court (Id ) (ix) The award of money sanctions is also

3 Pedersen referenced Companion Health Sermon v Kurtz 675 F 3d 75 (lst Cir 20l2) (severe sanction inappropriate in most cases when based on one incident) Christian v Pedersen et a1 SX 18 CV 2l7 6% Memorandum Opinion and Order 2021 VI SUPER IA Page 6 of 8

unwarranted to wit “Virgin Islands courts and the Third Circuit has held that an award of fees

and costs pursuant to the court 5 inherent authority to control litigation will usually require a

finding of bad faith 4 (Id at pp 2 3 )

‘][ 9 As a preliminary matter the Court finds that Pedersen timely filed his motion for

reconsideration under Rule 6 4(a) However, looking at the plain language of his motion, Pedersen

had not based his argument on one of the four grounds enumerated in Rule 6 4(b) Thus he has

failed to meet his burden See Arvzdson, 72 V I at 64 (“motions for reconsideration must be based

on one of the grounds delineated in Rule 6 4(b) ) Furthermore, the argument and assertions made

in Pedersen s instant motion for reconsideration could have been raised before but was not More

specifically Pedersen had two opportunities to raise his argument and assertions as to why he

should not be sanctioned first, in response to the Court’s January 22, 2020 order ordering

Pedersen to show cause within thirty days of the order, 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 Procedure5 and second in Pedersen s

opposition to Plaintiff’s motion for sanctions and Pedersen chose not to The Court will not let

Pedersen relitigate the issue now As noted above a motion for reconsideration “[i]s not a vehicle

for registering disagreement with the court 3 initial decision for rearguing matters already

addressed by the court, or for raising arguments that could have been raised before but were not

Worldwzde Flight Serwces 51 V I at i10

‘Pedersen referenced Melchto: v Univ 0fthe VI 20]6V[ LEXIS 56 *21(VI Super Ct Apr 27 2016) Republic of the Philippines v Westinghouse Electric Corp 43 F 3d 65 74 n l 1 (3d Cir 1994); In re Prudential Ins Co Am Sales Practice Lillg Adams 278 F 3d I75 [8| (3d Cir 2002) Chambers v NASCO Inc 50] U S 32 45 46 (I991) 5 According to the docket Pedersen never tiled anything in response to the Court s January 22 2020 order ordering Pedersen to show cause within thirty days of the order, in writing why Pedersen or Pedersen s attorney Royette Russell Esq should not be required to pay Plaintitf’s reasonable expenses pursuant to Rule 37(a)(5) of the Virgin Islands Rules of Civil Procedure and thereiore, Pedersen was not compliant with the Court’s January 22 2020 order Christian v Pedersen et a1

sMfiJIirghlfiillz Opinion and Order 2021 VI SUPER m Page 7 of8 1| 10 Moreover, the Court must point out that Pedersen himself conceded in his instant motion

for reconsideration that he did not timely comply with the Court’s January 22, 2020 order to wit,

Pedersen acknowledged in the mot10n that he complied “with the Court order a mere five days

after the deadline” and that the responses were “filed a mere three (3) days afier the deadline ”

(Motion, pp 1 2 ) Regardless of whether Pedersen was three days or five days late, the fact of the

matter is that Pedersen did not timely comply with the Court’s January 22, 2020 order Pedersen,

rather than filing a motion for an extension of the deadline, Pedersen unilaterally determined that

he had good cause to disregard the deadline set forth by the Court Such indifference to the Court’s

order is simply not allowed See Title 14 V I C § 581 (“Every court of the Virgin Islands shall

have the power to punish by fine or imprisonment, at its discretion, such contempt of its authority,

and none other as (3) dlsobedience or resistance to its lawful writ, process, order, rule decree,

or command ), see also Title 4 V I C § 243(4) (“Every court shall have power (4) To compel

obedience to its judgments, orders, and process, and to the orders of a judge out of court, in all

actions, or proceedings pending therein ”), Title 4 V I C § 244 (“Any person who wilfully violates,

neglects or refuses to observe or perform any lawful order of a court shall be guilty of contempt

of court and upon being found guilty of such contempt may be punished as provided by law ”),

Title 4 V I C § 281(2) (“Every judicial officer shall have power (2) To compel obedience to his

lawful orders ”), Title 4 V I C § 282 (“For the effectual exercise of the powers conferred in the

last section a judicial officer may punish for contempt in the cases and in the manner provided by

law ”) Thus, unlike what Pedersen argued, sanctions were warranted in this instance

CONCLUSION

1| 11 Based on the foregoing, the Court will deny Pedersen’s instant motion for reconsideration

Accordingly, it is hereby Chmnan v Pedersen et a! SK [8 CV 217 Memorandum Opinion and Order 2021 v: SUPER KIA Page 8 of 8

ORDERED that Pedersen s motion for reconsideration of the Court 5 June l2 2020 Order,

filed on June 16 2020 is DENIED w

DONE and so ORDERED this 6N day of June 2021

ATTEST M” M Tamara Charles HAROLD W L WILLOCKS Clerk of the Court Presiding Judge of the Superior Court

iéourt (Jerk SW

Dated %2 21/939 a—