Jamal M. Abed and Jalal M. Abed v. Anuar Mufid Abed, Akram Mufid Abed, and Sion Farm Service Station

• Court: Superior Court of The Virgin Islands
• Decided: September 30, 2021
• Docket: SX-18-CV-529
• Status: Published

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX JAMAL M ABED AND JALAL M ABED Civil No SX 18 CV 529 PLAINTIFFS, v JURY TRIAL DEMANDED

ANUAR MUFID ABED AKRAM MUFID CITE AS 2021 V1 SUPER £8— ABED AND SION FARM SERVICE STATION LLC, DEFENDANTS

Appearances Eszart A Wynter, Sr , Esq Law Offices Eszart A Wynter, Sr , P C Frederiksted, U S Virgin Islands For Plaintiffs

Dwayne Henry, Esq Law Offices of Dwayne Henry Christiansted, U S Virgin Islands For Defendants

MEMORANDUM OPINION AND QRDER

WILLOCKS Presiding Judge

1] 1 THIS MATTER is before the Court sua sponte for review

BACKGROUND 1! 2 On November 5, 2018, Plaintiff Jamal M Abed and Plaintiff Jalal M Abed’s (hereinafter

collectively, “Plaintiffs ’) filed a verified complaint against Defendant Anuar Mufid Abed,

Defendant Akram Mufid Abed, and Defendant Sion Farm Service Station, LLC (hereinafter

collectively ‘ Defendants ) On November 28, 2018, Defendants filed a joint answer in response

to Plaintiffs’ verified complaint

1] 3 Subsequently the parties proceeded to discovery Abed el al v Abed e! a!

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1] 4 On September 17, 2019, the Court entered an order whereby the Court ordered the parties

to file a stipulated scheduling order within thirty days from the date of entry of the said order

1| 5 On August 30, 2019 Plaintiffs filed a notice whereby Plaintiffs advised the Court that

Plaintiffs have served Defendants with Plaintiffs’ requests for admission and Plaintiffs’ first set of

interrogatories and requests for production of documents

‘6 On October 31, 2019, Plaintiffs filed a motion to deem requests for admission admitted

and conceded and compel responses to interrogatories and requests for production of documents

in connection with the discovery propounded by Plaintiffs on or about August 30, 2019 To date,

Defendants have not filed a response thereto On October 31, 2019, Plaintiffs also filed a motion

to compel Rule 26 meet and confer To date, Defendants have not file a response thereto

1| 7 On February 27, 2020, the parties appeared before the Court for a status conference

whereby the Couit ordered the parties to (i) submit a stipulated scheduling order by March 5, 2020

and (ii) meet and confer by March 3 2020

9‘ 8 On April 3, 2020, Plaintiffs filed an informative motion whereby Plaintiffs advised the

Court that Plaintiffs have “tried to adhere to the Virgin Islands Rules of Civil Procedure and this

Court’s Order but has received no feedback from the Defendants or their attorneys in this matter

[regarding the stipulated scheduling order]” and that “[t]he imposition of a fine against the

Plaintiffs and their attorney in this matter is not warranted because the undersigned has consistently

tried to contact the Defendants and their attorneys in this matter ”' (April 3, 2020 motion, p 3 )

” Although labeled as an ‘ lnfonnative Motion,” Plaintiffs did not move the Court to do anything Instead, the filing was purely infomationive Thus, the Court will construe Plaintiffs April 3, 2020 motion as a notice, and no filtther action from the Court is necessary Plaintiffs are reminded to label their filings properly Abed e! a! v Abea’ eta!

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1] 9 On November 16, 2020 the Court granted the parties stipulated scheduling order and

entered a scheduling order in this matter

fl 10 On February 24, 2021, Plaintiffs filed a motion to deem requests for admission admitted

and conceded and compel responses to interrogatories and requests for production of documents

in connection with the discovery propounded by Plaintiffs on or about August 30, 2019

1] l 1 On August 12, 2021 the parties appeared before the Court for a status conference whereby

the Court Inter aha, granted Defendants’ request for additional time to respond to Plaintiffs’

February 24, 2021 motion and ordered Defendants to file its response to Plaintiffs’ February 24,

2021 motion on or before August 13, 2021

1| 12 To date, Defendants have not filed a response to Plaintiffs’ February 24, 2021 motion

DISCUSSION

1[ 13 The Court will address the outstanding issues in this matter

I Plaintiffs’ October 31, 2019 Motion to Deem Requests for Admission Admitted and Conceded and Compel Responses to Interrogatories and Requests for Production of Documents

1! 14 The Court finds that Plaintiffs implicitly withdrew their October 31, 2019 motion to deem

requests for admission admitted and conceded and compel responses to interrogatories and

requests for production of documents in connection with the discovery propounded by Plaintiffs

on or about August 30, 2019 when they filed their February 24, 2021 motion to deem requests for

admission admitted and conceded and compel responses to interrogatories and requests for

production of documents in connection with the discovery propounded by Plaintiffs on or about

August 30 2019 See In re Refinery Dust Claims 72 V I 256 290 (Super Ct Dec 13 2019)

(citing Mztchell v Gen Engg Corp 67 V I 271 278 (Super Ct Feb 23 2017) ( a motion can

also be deemed withdrawn based on certain actions or inactions ofthe party who filed the motion”), Abed er a] v Abed er a1

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see also Magras v Natzonal Industrial Servzces er al , 2021 V U Super 50U, 1[ 8, see also In re

Refinery Dust Claims 72 V I 256 290 (Super Ct Dec 13 2019) As such Plaintiffs October

31, 2019 motion to deem requests for admission admitted and conceded and compel responses to

interrogatories and requests for production of documents will be deemed withdrawn

1] Plaintiffs’ October 31, 2019 Motion to Compel Rule 26 Meet and Confer

1] 15 As noted above, at the February 27, 2020 status conference, the Court ordered, Inter aha,

the parties to meet and confer As such, the Court will deny as moot Plaintiffs’ October 31, 2019

motion to compel Rule 26 meet and confer

III Plaintiffs’ February 24, 2021 Motion to Deem Requests for Admission Admitted and Conceded and Compel Responses to Interrogatories and Requests for Production of Documents

11 16 In their February 24, 2021 motion, Plaintiffs advised the Court that Defendants have not

responded to the discovery propounded by Plaintiffs on or about August 30, 2019 to wit,

Plaintiffs’ requests for admission and Plaintiffs’ first set of interrogatories and requests for

production of documents Plaintiffs also requested for “all costs associated with the filing of

Motions (Feb 24 2021 Motion p 3 )

‘ 17 For clarity the Court will address Plaintiffs’ February 24, 2021 motion in three separate

parts (i) Plaintiffs’ motion to deem requests for admission admitted and conceded, (ii) Plaintiffs’

motion to compel responses to interrogatories and requests for production of documents, and (iii)

Plaintiffs’ requests for all costs

A Motion to Deem Facts Admitted

1 Standard of Review

1! 18 Requests for admissions are governed by Rule 36 of Virgin Islands Rules of Civil

Procedure (hereinafter ‘Rule 36 ’) Rule 36 provides that ‘[a] party may serve on any other party Abed e! a! v Abed er a1

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a written request to admit, for purposes of the pending action only, the truth of any matters within

the scope of Rule 26(b)(1) relating to (A) facts, the application of law to fact, or opinions about

either, and (B) the genuineness of any described documents ” V I R CIV P 36(a)(1) Rule 36

further provides that “[a] matter is admitted unless, within 30 days after being served, the party to

whom the request is directed serves on the requesting party a written answer or objection addressed

to the matter and signed by the party or its attorney” but “[a] shorter or longer time for responding

may be stipulated to under Rule 29 or be ordered by the court ” V I R CIV P 36(a)(3) “A matter

admitted under this [Rule 36] is conclusively established unless the court, on motion, permits the

admission to be withdrawn or amended ” V I R Clv P 36(b) However, “[a]n admission under

this rule is not an admission for any other purpose and cannot be used against the party in any other

proceeding ” Id Furthermore, ‘ [w]hile Rule 36 allows a party to request an admission of ‘the

application of law to fact,’ requests for purely legal conclusions are not permitted

under Rule 36 and the Court finds such requests to be improper because it could lead to parties

stipulating to the law 2 Watson v Gov t ofthe Vzrgm Islands 2017 V I LEXIS 43, *10 12 (Super

Ct March 7 2017) see Matthew v Herman 56 V I 674 682 (V I 2012) ( parties cannot stipulate

to the law especially in a situation where the decision may impact other pending or future

cases ); see also Der Weer v Hess 011 VI Corp 64 VI 107 2016 VI LEXIS 21 *54 (“the

patties cannot stipulate to the law, not explicitly by agreeing on the applicable law, or implicitly

by not questioning what law applies”) (internal quotation marks and citations omitted)

2 The Watson court was addressing Rule 36 of Federal Rules of Civil Procedure (hereinafier “Federal Rule 36”) Rule 36 is modeled afier Federal Rule 36 Thus, the Court finds the discussion in Watson applicable in this mstance Abed et al v Abed e! a! SX 18 CV 529 q8 Memorandum Opinion and Order 2021 VI SUPER Page 6 of [2

2 Discussion

1| 19 Based on the records in this matter, it is undisputed that Defendants were served with

Plaintiffs’ requests for admission and Defendants failed to serve a timely written answer or

objection in response 3 While Plaintiffs filed the February 24, 2021 motion to deem facts admitted,

it was not necessary to do so Under Rule 36(a)(3), matters contained in Plaintiffs requests for

admissions provided that the requests fall within the sc0pe of Rule 36(a)(1)—were automatically

deemed admitted since more than thirty days have passed after Defendants were served and

Defendants have not responded with written answers or objections V I R CIV P 36(a)(3) (“A

matter is admitted unless, within 30 days after being served, the party to whom the request is

directed serves on the requesting party a written answer or objection addressed to the matter and

signed by the party or its attorney ”) As such, the Court need not grant Plaintiffs’ February 24,

2021 motion as to Plaintiffs’ motion to deem the requests for admissions admitted and conceded

However, the Court must review the requests for admissions and make a finding as to which

requests fall within the scope of Rule 36(a)(1) See Watson 2017 V I LEXIS 43 at *12 ( Thus

when the Court granted Plaintiff's motions to deem facts admitted against Defendant Governor and

Defendant GVI, the Court should have specified in its orders, entered on July 9, 2013 and August

12 2013 that only those requests that fall within the scope of Rule 36(a)(1) are deemed admitted

and made a finding as to which requests fall within the scope of Rule 36(a)( 1) ”) Here, Plaintiffs

did not include a copy of the requests for admissions Plaintiffs propounded on or about August 30,

3 As noted above, at the August 12, 2021 status conference, Defendants acknowledged that they have not responded to Plaintiffs’ February 24, 2021 motion to deem requests for admission admitted and conceded and compel responses to interrogatories and requests for production of documents and requested additional time to respond thereto Thus, the Court concludes that Defendants were served with Plaintiffs’ requests for admission and Plaintiffs’ first set of interrogatories and requests for production of documents Abed e! a! v Abed eta!

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2019 with this motion Thus, at this juncture, the Court will order Plaintiffs to file a copy of the

requests for admissions Plaintiffs propounded on or about August 30, 2019 so the Court can

determine which requests fall within the scope of Rule 36(a)(1)

B Motion to Compel Responses to Interrogatories and Requests for Production of Documents

1[ 20 Rule 33 of the Virgin Islands Rules of Civil Procedure (hereinafter “Rule 33”) permits a

party to serve on any other party written interrogatories, V I R Clv P 33(a), and requires that

“[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in

writing under oath ” V I R ClV P 33(b)(3) Rule 34 of the Virgin Islands Rules ofCivil Procedure

(hereinafter “Rule 34”) permits a party to serve on any other party requests for production of

documents or tangible things to inspect and requests for entry, V I R CW P 34(a), and requires

that “[flor each item or category, the response must either state that inspection and related activities

will be permitted as requested or state with specificity the grounds for objecting to the request,

including the reasons’ and “the responding party may state that it will produce copies ofdocuments

or of electronically stored information instead of permitting inspection ” V I R Clv P

34(b)(2)(B) Under Rule 34, “[t]he production must then be completed no later than the time for

inspection specified in the request or another reasonable time specified in the response ” V I R

CW P 34(b)(2)(B)

1|21 Rule 37 of the Virgin Islands Rules of Civil Procedure (hereinafter “Rule 37”) governs

Rule 33 and Rule 34 violations Rule 37 provides that [a] party seeking discovery may move for

an order compelling an answer, designation, production, or inspection if (iii) a party fails to

answer an interrogatory submitted under Rule 33 or (iv) a paity fails to produce documents or Abed er al v Abed er a! SX 18 CV 529 Memorandum Opinion and Order 2021 V1 SUPER lg Page 8 of 12

fails to respond that inspection will be permitted or fails to permit inspection as requested

under Rule 34, ’ V I R ClV P 37(a)(3)(B)(iii) (iv), and that “[t]he court may, on motion, order

sanctions” for such Rule 33 and Rule 34 violations V I R CW P 37(d)(l)(A)(ii) Rule 37 further

provides that “[a] failure described in Rule 37(d)(l)(A) is not excused on the ground that the

discovery sought was objectionable, unless the party failing to act has a pending motion for a

protective order under Rule 26(0) V I R Clv P 37(d)(2)

11 22 The Court will note at the outset that the Court finds the parties have in good faith conferred

as previously ordered by the Court at the February 27, 2020 status conference 4

1] 23 Based on the records in this matter, it is undisputed that Defendants were served with

Plaintiffs’ first set of interrogatories and requests for production of documents 5 Defendants

violated Rule 33 and Rule 34 when they failed to timely respond to Plaintiffs’ first set of

interrogatories and requests for production of documents There is no pending motion for a

protective order under Rule 26(0), so Defendants’ failure is not excused Thus, at this juncture, the

Court will grant Plaintiffs’ February 24, 2021 motion as to Plaintiffs’ motion to compel Defendants

to respond to Plaintiffs’ first set of interrogatories and requests for production of documents, and

‘ Motions related to discovery pursuant to Rules 26 through 37 of the Virgin Islands Rules of Civil Procedure are governed by Rules 37 and 37 l of the Virgin Islands Rules of Civil Procedure (hereinafter “Rule 37” and “Rule 37 1,” respectively) Rule 37 and Rule 37 l mandates that the moving party submit a certification with its motion certifying that both parties engaged in substantive, good faith negotiations before filing a discovery motion V I R ClV P 37(a) and 37 1(a) See V I R Cw P 37(a) (‘ 0n notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action ) V l R ClV P 37 1(a) (‘ Prior to filing any motion relating to discovery pursuant to Rules 26 through 37, other than a motion relating to depositions under Rule 30, counsel for the parties and any self represented parties shall confer in a good faith effort to eliminate the necessity for the motion or to eliminate as many of the disputes as possible ”) 5 See supra, footnote 3 Abed et a! v Abed eta!

ISVfCIIIIEI'Catl/dflzl: Opinion and Order 202! VI SUPER 33: Page 9 of 12

order Defendants to serve their responses to Plaintiffs’ first set of interrogatories and requests for

production of documents

C Request for Costs

1 Defendants’ Failure to Respond to Plaintiffs’ Requests for Admissions

11 24 Under Rule 37, “[i]f a party fails to admit what is requested under Rule 36 and if the

requesting party later proves a document to be genuine or the matter true, the requesting party may

move that the party who failed to admit pay the reasonable expenses, including attorney's fees,

incurred in making that proof” and “[t]he court must so order unless (A) the request was held

objectionable under Rule 36(a), (B) the admission sought was of no substantial importance, (C) the

party failing to admit had a reasonable ground to believe that it might prevail on the matter; or

(D) there was other good reason for the failure to admit ” V I R Clv P 37(c)(2)

1| 25 Here, Plaintiffs have not proved “a document to be genuine or the matter true ” Id As such,

the Court will not award Defendants to pay the reasonable expenses, including attorney’s fees, at

this juncture

2 Defendants’ Failure to Respond to Plaintiffs’ First Set of Interrogatories and Requests for Production of Documents 1| 26 Rule 37 permits a party seeking discovery to move for an order compelling disclosure,

answer, designation, production, inspection, and for appropriate sanctions See V I R CIv P 37

If the motion is granted, such as here, “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 But the court must not order this payment if (i) the movant filed the

motion before attempting in good faith to obtain the disclosure or discovery without court action, Abed e! a! v Abed e! a!

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(ii) the opposing party's nondisclosure, response, or objection was substantially justified, or

(iii) other circumstances make an award of expenses unjust ” VI R Clv P 37(a)(5)(A) The

“imposition of sanctions for abuse of discovery under Rule 37 is a matter within the discretion of

the trial court ”6 Davis v Varlack Ventures Inc , 59 V I 229, 236 (V I 2013), see also, Pedro v

Ranger Am ofthe VI Inc 70 V I 251 294 (Super Ct 2019) see also Molon v Independence

Blue Cross, 56 VI 155, 168 (VI 2012) (noting the trial court’s broad discretion to control

discovery)

1| 27 Here, the Court will schedule a hearing as mandated by Rule 37(a)(5)(A) to give

Defendants and Defendants’ counsel an opportunity to be heard on whether the Court should order

Defendants and/or Defendants’ counsel to pay the reasonable expenses, including attorney's fees,

Plaintiffs incurred in making the motion to compel

IV Scheduling Order

1] 28 As noted above, the Court entered a scheduling order on November 16, 2020 The dates

contained therein have since expired As such, the Court will order the parties to file a stipulated

first amended scheduling order

CONCLUSION

1| 29 Based on the foregoing, the Court will rule on the pending motions as stated above and

order the parties to file a stipulated first amended scheduling order Accordingly, it is hereby

ORDERED that Plaintiffs’ motion to deem requests for admission admitted and conceded

and compel responses to interrogatories and requests for production of documents, filed on

October 31 2019 is DEEMED WITHDRAWN It is further

6 The DawS court was addressing Rule 37 of Federal Rules of Civil Procedure (hereinafter “Federal Rule 37”) Rule 37 was modeled after Federal Rule 37 Thus the Court finds the discussion in Davis applicable in this instance Abed et a! v Abed eta!

[Stiintfng‘lfdfllz Opinion and Order 2021 VI SUPER 18; Page 11 of 12

ORDERED that Plaintiffs’ motion to compel Rule 26 meet and confer, filed on October

31 2019 is DENIED AS MOOT It is further

ORDERED that, within sixty (60) days from date entry of this Memorandum Opinion

and Order, Plaintiffs shall file a copy of the requests for admission Plaintiffs propounded on

Defendants on or about August 30 2019 and RESERVE RULING on which requests fall within

the scope of Rule 36(a)(1) pending receipt of Plaintiffs’ submission It is further

ORDERED that Plaintiffs’ motion to deem requests for admission admitted and conceded

and compel responses to interrogatories and requests for production of documents, filed on

February 24, 2021, is GRANTED as to Plaintiffs’ motion to compel Defendants to respond to

Plaintiffs’ first set of interrogatories and requests for production of documents It is further

ORDERED that, within seven (7) days from date entry of this Memorandum Opinion

and Order, Defendants shall serve Plaintiffs with a copy of their responses to Plaintiffs’ first set

of interrogatories and requests for production of documents It is further

ORDERED that Defendants, Defendants’ counsel, and Plaintiffs’ counsel shall appear a

hearing via Zoom on Thursday, November 18, 2021, at 9 00 a m to be heard on whether the

Court should order Defendants and Defendants’ counsel to pay the reasonable expenses Plaintiffs

incurred in making the motion to compel, including attorney's fees It is further

ORDERED that, on or before Wednesday, November 10, 2021, Plaintiffs shall file a

notice advising the Court of the reasonable expenses, including attomey’s fees, Plaintiffs incurred

in making the motion to deem requests for admission admitted and conceded and compel responses

to interrogatories and requests for production of documents, filed on February 24, 2021, but only

for the portion that relates to Plaintiffs’ motion to compel Defendants to respond to Plaintiffs’ first Abed eta! v Abed e! a! SX 18 CV $29 Memorandum Opinion and Order 2021 VI SUPER 1 g Page 12 of l2

set of interrogatories and requests for production of documents, and not for the portion that relates

to Plaintiffs’ motion to deem requests for admission admitted and conceded And it is further

ORDERED that, within fifteen (15) days from date entry of this Memorandum

Opinion and Order, the parties shall file a stipulated first amended scheduling order The parties

are reminded that the proffered amended scheduling order must note prominently on the first page

the numbered amendment it represents—e g , stipulated first amended scheduling order

DONE and s0 ORDERED this 2 day of September 2021

ATTEST 9%W :wéz XMZ; Tamara Charles HARO D L WILLOCKS Clerk of the Court Presiding Judge of the Superior Court

Court ClerkW

Dated /£,//%_7 (f? a