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

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 Christian v Pedersen et a!

3:35.31: Opinion and Order 2021 VI SUPER 13% Page 2 of 7 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

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 Christian v Pedersen et aI SX 18 CV 217 Memorandum Opinion and Order 2021 VI SUPER 13% Page 3 of 7

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 ) Christian v Pedersen, er a1 SX 18 CV 217 Memorandum Opinion and Order 2021 v1 SUPER 33% Page 4 of 7

(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 Christian v Pedersen et a1

fifinfirEXdi: Opinion and Order 2021 v1 SUPER 33M Page 5 of 7

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) Chrwuanv Pedersen eta!

firininfiidi: Opinion and Order 2021 VI SUPER 333A Page 6 of 7

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 Chnstian v Pedersen et a!

3:353: Opinion and Order 2021 v1 SUPER 21—3 M Page 7 of 7

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