SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX
JOSEPH GERACE AND VICTORIA VOOYS Civil No SK 2005 CV 00368 D/B/A CANE BAY BEACH BAR ACT]0N FOR DAMAGES PLAINTIFFS,
I JURY TRIAL DEMANDED
v.
WARREN MOSLER CHRIS HANLEY, AND CHRISMOS CANE BAY LLC CITE AS 2022 VI SUPER 46
DEFENDANTS
Appearances Lee J Rohn, Esq Lee J Rohn and Associates, LLC Christiansted, St Croix For Plamtzffi
Joel Holt, Esq Law Offices of Joel Holt Christiansted, St Croix For Defendants
CORRECTED MEMORANDUM OPINION AND ORDER'
WILLOCKS Presiding Judge 1] 1 THIS MATTER came before the Court on Plaintiff Joseph Gerace and Plaintiff Victoria Vooys d/b/a Cane Bay Beach Bar 8 (collectively, hereinafter “Plaintiffs”) motion to exceed page limit and corrected motion to exceed page limit,2 filed on April 19, 2022 and April 20, 2022 respectively On April 20, 2022, Defendant Warren Mosler, Defendant Chris Hanley, and
' This Corrected Memorandum Opinion and Order (2022 VI Super 46) corrects the memorandum opinion and order entered on April 22 2022 (2022 VI Super 45) by adding a paragraph number at the beginning of each paragraph 2 In the corrected motion Plaintiffs indicated that they fixed ‘typographical errors that made it confusing as to the number of pages Plaintiffs seek and a legal authority citation (Corrected Motion, p l )
Gerace eta! v Mosler e! a! SX 2005 CV 368 Corrected Memorandum Opinion and Order 2022 VI SUPER 46 Page 2 of 8
Defendant Chrismos Cane Bay, LLC (collectively, hereinafier “Defendants”) filed a response to the original motion 3 As of the date of this Order, no reply has been filed in response 4 BACKGROUND
112 This matter came before the Court for a jury trial and on March 3, 2022, the jury reached a verdict On March 22, 2022, Defendants filed a motion “for post trial relief pursuant to Rule 50(b) [of the Virgin Islands Rules of Civil Procedure], seeking to vacate the jury’s entire verdict [and] [a]ltematively, a new trial is sought pursuant to Rule 59(a)(1)(A)(vi) [of the Virgin Islands Rules of Civil Procedure] based on the individual and cumulative improper closing arguments of Plaintiffs’ counsel ” (March 22, 2022 Motion) fl3 On April 11, 2022, Plaintiffs filed a first motion for a two week extension of time to April 26, 2022 to file an opposition to Defendants’ March 22, 2022 motion On April 12, 2022, Defendants filed an opposition thereto The Court subsequently granted Plaintiff’s April 11, 2022 motion and extended the deadline to April 26, 2022 for Plaintiff to file an opposition to Defendants’ March 22, 2022 motion 114 On April 19 2022, Plaintiffs filed a motion to exceed page limit, and on April 20, 2022, Plaintiffs filed a corrected motion to exceed page limit STANDARD OF REVIEW
ll 5 Rule 6 l of the Virgin Islands Rules of Civil Procedure provides that “[u]nless otherwise ordered by the court all motions, responses and replies filed with the court shall not exceed the
3 According to the time stamp Defendants’ opposition was filed before Plaintiffs filed their corrected motion Nevertheless given Plaintiffs representation that the corrected motion only fixed typographical errors and a legal authority citation, the Court will consider Defendants response when ruling on the corrected motion “ Rule 6 l of the Virgin Islands Rules of Civil Procedure provides that “[n]othing herein Shall prohibit the court from ruling without a response or reply when deemed appropriate VI R Clv P 6 l(f)(6) Here, the Court finds it appropriate to rule on Plaintiffs' motion at this juncture
Gerace e! a] v Mosler e! a! SX 2005 CV 368 Corrected Memorandum Opinion and Order 2022 VI SUPER 46 Page 3 of 8
greater of 20 pages or 6,000 words in length unless leave of court has been obtained in advance fora longer submission ” VI R CIV P 6 1(e)(2)
DISCUSSION
1i 6 In their motion, Plaintiff moved to exceed the page limit for their opposition to Defendants’ March 22, 2022 motion by seventeen additional pages 5 Plaintiffs made the following assertions in support of their motion (i) The seventeen additional pages will “assist the Court in resolving the post trial motions dealing with multiple defendants and multiple claims after a five day jury trial ” (Motion, p 1), (ii) “There are two plaintiffs and three (3) defendants in this case” and “[t]he defendants each filed two (2) post trial motions—confusingly consolidated into one motion raising a host of issues they contend warrant either a new trial or judgment as a matter of law ’ (Id , at pp 1 2), (iii) “[T]he trial transcript containing the evidence to survive a sufficiency challenge is just over 1,200 pages” and “[t]his includes the official transcript of the jury instructions, which Plaintiffs must cite and rely on in response to a sufficiency challenge under V I R Civ P 50 ” (Id , at p 2), (iv) “In addition to a sufficiency challenge under Rule 50, the Defendants’ motion seeks a new trial under VI R Civ P 59 a completely different legal standard ” (Id ), and (v) “[T]here is more than good cause for this Court to grant the Plaintiffs an additional seventeen pages considering the extensive evidence received (1200 paged [sic] transcript) and the requirement in this jurisdiction that parties adequately brief matters ”6 (Id at p 3)
5 Plaintiffs referenced Augustin v Hess 0!! V I Corp 67 V1 488 503 (Super Ct Aug 23 2017)( if allowing additional pages can help the court to resolve a complicated issue or complex questions of law then leave to exceed pages should generally be granted ) 5 Plaintiffs referenced Herbert v National Industrial Services 2022 V] SUPER 29, 1| II (VI Super Ct March [8, 2022) The Lirwm Corp v Universal 011 Prods C0 69V! 380 387 (VI Super Ct Sept 28 2018)( [l]t is not the Court's job to research and construct legal arguments open to parties In order to develop a legal argument effectively, the facts at issue must be bolstered by relevant legal authority; a perfunctory and undeveloped assertion is
Gerace elal v Mosler e! a! SX 2005 CV 368 Corrected Memorandum Opinion and Order 2022 V1 SUPER 46 Page 4 of 8
11 7 In their opposition, Defendants indicated that they “have no objection to the Plaintiffs response to the post trial motions exceeding the normal page limitations ” (Opp , p 1 )
1 Original Motion 1: 8 The Count finds that Plaintiffs implicitly withdrew their original motion to exceed page limit, filed on April 19, 2022, when they filed the subsequent corrected motion to exceed page limit on April 20, 2022 See e g Magras v Nattonal Industrial Services et al , 2021 V U Super SOU, 1i 8, see also In re Refinery Dust Claims 72V] 256 290 (Super Ct Dec 13 2019)(citingM1tcheIIv Gen Eng g Corp 67 V1 271 278 (Super Ct Feb 23, 2017) (“a motion can also be deemed withdrawn based on certain actions or inactions of the party who filed the motion”) As such, Plaintiffs’ original motion to exceed page limit, filed on April 19, 2022 will be deemed withdrawn 2 Corrected Motion ‘1 9 Virgin Islands courts have the inherent authority to economically manage their dockets to best promote the fair and efficient resolution of the dispute between the parties See e g FzrstBank P R v Harthman Leasmg [II LLLP 2019 V I LEXIS 5 at ”‘14 (V 1 Super Ct Jan 28 2019) Dawes v Certam Underwriters at Lloyds ofLondon 2017 VI LEXIS 138 *8 (VI Super Ct Aug 25 2017)‘ Prentzce v Seaborne szatzon Inc 65 V I 96 113 (V I Super Ct Sept 1 2016)‘ Der Weer v Hess 011 VI Corp 64 V I 107 126 (V I Super Ct March 15 2016) Thus the Court finds that, pursuant to such inherent authority, the Court can impose page limits on court papers See V I R CIV P 6 1(e)(2) but see Augustin v Hess 011 V1 Corp 67 V I 488 502 (Super Ct Aug 23, 2017) (“[T]he Supreme Court has not had occasion to address Rule 7 I specifically, or more generally, what inherent authority courts have to place limits on the number
inadequate ) Josephv Joseph 2015 V1 LEXIS 43 ‘5 (V1 Super Ct Apr 23 2015)( [[]n general the Court will not make a movant's arguments for him when he has failed to do so ")
Gerace er a! v Moxie; er al SX 2005 CV 368 Corrected Memorandum Opinion and Order 2022 VI SUPER 46 Page 5 of 8
of pages of motion papers Two Superior Court judges addressed motions for leave to exceed page limit See Abednego v St Cram Alumma LLC 63 V I 153 184 (Super Ct 2015) Jones v Jerome, 62 V I 160, 161 n 1 (Super Ct 2015) But in each case, the court granted the motion without discussion Similarly, the District Court of the Virgin Islands has also addressed motions to exceed page limits in Chapm v Great Southern Wood Preservmg Inc , Civ No 2012 77, 2016 U S Dist LEXIS 60805 (D V I May 9 2016) but there only in passing and only in discussing the procedural history to the case Thus no court in the Virgin Islands has addressed why (or even whether) courts can or should impose pages limits on court papers ”) 1| 10 In Augustm the court referenced the discussion of the Lnited States Tax Court in Kernan v Commisszoner of Internal Revenue 108 T C M (OCH) 503 (T C 2014) afld 670 Fed Appx 944 (9th Cir 2016) addressing the reasoning and concerns of why courts impose page limits on court papers,7 and concluded that it “agrees with the reasoning and concerns Kernan expressed and further agrees that parties should limit their arguments and only raise those arguments that carry the most weight ” Id , 67 V I at 503 Nevertheless, the Augustm court acknowledged that it is not always possible to do so in twenty pages, and further concluded that “if allowing additional pages can help the court to resolve a complicated issue or complex questions of law,
7 1n Kernan, the United States Tax Court explained Judges impose page limits for a reason They force parties to hone their arguments and to state those arguments succinctly Page limits cause, or should cause, parties to dispense with arguments of little or no merit in favor of those arguments that have a better chance of carrying the day They encourage patties to avoid redundancy And repetition Parties often are quite creative in their efforts to circumvent page limits Among the most blatant methods is to put material into an appendix and to not count that appendix as falling within the page limits Another is to incorporate another document by reference Less blatant but still obvious, are those instances in which parties shrink the margins or the font size so that they can squeeze more text within the page limits that were imposed Then there are methods that while perhaps in technical conformity with our Rules, diminish the quality of a brief Examples include moving text into footnotes or using extensive block quotations so that the author can single space more of the text 108 T C M (CCH) 503 at 9 l0 (footnotes and paragraph breaks omitted)
Gerace e! a! v Mosler er a! SX 2005 CV 368 Corrected Memorandum Opinion and Order 2022 VI SUPER 46 Page 6 of 8
then leave to exceed page limits should generally be granted [b]ut requesting leave to exceed the page limits should be the exception, not the norm ” 1d Ultimately the Augustin court granted the moving party’s motion for leave to exceed the page limit “[b]ecause of the significance of the issues raised here, and because the appointment of personal representatives was a question of first impression in the Virgin Islands”; the court also noted that the brief “only exceed the limit by four pages ” Id Like the Augustin court, the Court similarly agrees with the reasoning and the concerns Kernan expressed Furthermore, the Court also agrees with the opinions Augustin expressed to wit, that ‘parties should limit their arguments and only raise those arguments that carry the most weight’ and that “if allowing additional pages can help the court to resolve a complicated issue or complex questions of law, then leave to exceed page limits should generally be granted [b]ut requesting leave to exceed the page limits should be the exception, not the norm ” 67 V I at 503 With that in mind the Court will determine whether to grant Plaintiffs’ motion 8 1] 11 Here, Plaintiffs never asserted that the issues raised in Defendants March 22, 2022 motion were complex or novel issues of first impression Instead, Plaintiffs’ motion focused on the fact that the lawsuit involves multiple parties and multiple claims, and the fact that the length of the transcript necessary for Plaintiffs to prepare their opposition is approximately 1,200 pages However, the fact that a lawsuit involves multiple parties and multiple claims, and the fact that the
3 The Court notes at the outset that Defendants did not object to Plaintiffs motion However ‘ a ‘motion is not automatically granted simply because it is unopposed ”’ Ayala v Lockheed Martin Corp 2017 V l LEXIS 39, at “‘ 19 (VI Super Ct Mar 3 2017) (quoting In re Alumma Dust Claims 2017 VI LEXISZ at ‘26 (VI Super Ct Jan [0, 2017) ‘In other words, even though a motion is unopposed, courts must still determine whether to grant it especially when the decision is within the courts discretion ” A uguslm, 67 V I at 501 After all the Court and not the parties has the inherent authority to manage the docket and Rule 6 l of the Virgin Islands Rules of Civil Procedure requires“leave of the Court’and not the agreement of the non moving party See VI R CIv P 6 l(e)(2) Plus it is not legally and procedurally sound to allow the parties to circumvent the Virgin Islands Rules of Civil Procedure by simply stipulating and doing away with the rules they do not want to follow Cf Henry v Dennery 2013 V 1 Supreme LEXIS 4, at ‘6 (V I 2013) (the Virgin Islands Supreme Court “has repeatedly instructed that the parties cannot simply stipulate to the law )
Gerace e! a! v Mosler e! a! SX 2005 CV 368 Corrected Memorandum Opinion and Order 2022 VI SUPER 46 Page 7 of 8
transcript containing the evidence is approximately 1,200 pages do not automatically qualify the issues involved as complex or novel issues of first impression Thus, based on Plaintiffs motion, the Court finds that seventeen additional pages are not necessary to help the Court because there are no complicated issue or complex questions of law to resolve Furthermore, while Plaintiffs implied in their motion that Defendants should not have combined their post trial motions pursuant to Rule 50(b) and Rule 59(a)(l)(A)(vi) of the Virgin Islands Rules of Civil Procedure into one motion, Rule 50(b) specifically provides that “the movant may file a renewed motion t01 judgment as a matter of law and may include an alternative orjoint request for a new trial under Rule 59 ’ V I R ClV P 59(b) 9 Moreover, the requirement that a party adequately support the positions and arguments in his/her brief and the concept that the court will not make a movant’s arguments for him/her when he/she has failed to do so are not unique or new to Plaintiffs or this matter As such, the Court will deny Plaintiffs motion See Augustin, 67 V I at 503 (“if allowing additional pages can help the court to resolve a complicated issue or complex questions of law, then leave to exceed page limits should generally be granted [b]ut requesting leave to exceed the page limits should be the exception, not the norm”)
9 Rule 50(b) of the Virgin Islands Rules of Civil Procedure provides (b) Renewing the Motion Alter Trial Alternative Motion for a New Trial If the court does not grant a motion for judgment as a matter of law made under Rule 50(a) the court is considered to have submitted the action to thejury subject to the court 5 later deciding the legal questions raised by the motion No later than 28 days after the entry ofjudgment or if the motion addresses ajury issue not decided by a verdict no later than 28 days after the jury was discharged the movant may file a renewed motion for judgment as a matter of law and may include an alternative orjoint request for a new trial under Rule 59 In ruling on the renewed motion the court may (I) allowjudgment on the vendict ifthejury returned a verdict (2) order a new trial or
(3) direct the entry ofjudgment as a matter of law V l R CIv P 50(b)
Gerace e! a! v Mosler e! a! SX 2005 CV 368 Corrected Memorandum Opinion and Order 2022 VI SUPER 46 Page 8 of 8
CONCLUSION
Based on the foregoing, it is hereby ORDERED that Plaintiffs’ motion to exceed page limit, filed on April 19, 2022, is DEEMED WITHDRAWN And it is further ORDERED that Plaintiffs’ corrected motion to exceed page limit, filed on April 20, 2022, is DENIED DONE and so ORDERED this 2‘0 day of April 2022
ATTEST Tamara Charles
W
HARO D W L WILLO S
Clerk of the Court Presiding Judge of the Superior Court
BY ?E—M Court Cler 44 Dated 37 ’
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Croix
JOSEPH GERACE et al, Case Number: SX-2005-CV-00368 Plaintiff Action: Damages v.
MARIA BENTLEY et al, Defendant.
NOTICE of ENTRY
of
Corrected Memorandum Opinion and Order To: Lee J. Rohn, Esq. Joel H. Holt, Esq.
Please take notice that on April 27, 2022 a(n) Corrected Memorandum Opinion and Order dated April 26, 2022 was/were entered by the Clerk in the above-titled matter.
Dated: April 27, 2022 Tamara Charles Clerk of the Court
By:
Janeen Maranda
Court Clerk II