Joseph Gerace and Victoria Vooys d/b/a Cane Bay Beach Bar v. Warren Mosler, Chris Hanley, and Chrismos Cane Bay, LLC

• Court: Superior Court of The Virgin Islands
• Decided: April 22, 2022
• Docket: SX-05-CV-368
• Status: Published

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST CROIX

JOSEPH GERACE AND VICTORIA VOOYS Civil No SX 2005 CV 00368 D/B/A CANE BAY BEACH BAR ACTION FOR DAMAGES

PLAINTIFFS, ; JURY TRIAL DEMANDED

CHRISMOS CANE BAY LLC V WARREN MOSLER CHRIS HANLEY AND 3 i CITE AS 2022 VI SUPER 45 DEFENDANTS

Appearances Lee J Rohn, Esq Lee J Rohn and Associates, LLC Christiansted, St Croix For Plamnffiv

Joel Holt, Esq Law Offices of Joel Holt Christiansted, St Croix For Defendants

MEMORANDUM OPINION AND ORDER

WILLOCKS, Presiding Judge

THIS MATTER came before the Court on Plaintiff Joseph Gerace and Plaintiff Victoria

Vooys d/b’a Cane Bay Beach Bar’s (collectively, hereinafter “Plaintiffs’ ) motion to exceed page

limit and corrected motion to exceed page limit,l filed on April 19, 2022 and April 20, 2022

respectively On April 20, 2022, Defendant Warren Mosler, Defendant Chris Hanley, and

' 1n the corrected motion, Plaintiffs indicated that they fixed “typographical errors that made it confusing as to the number ofpages Plaintiffs seek and a legal authority citation (Corrected Motion p l ) Gerace e! a! v Mosler er al SX 2005 CV 368 Memorandum Opinion and Order 2022 VI SUPER 45 Page 2 of 8

Defendant Chrismos Cane Bay, LLC (collectively, hereinafter Defendants”) filed a response to

the original motion 2 As of the date of this Order, no reply has been filed in response 3

BACKGROUND

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]lternatively, 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)

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

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

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

2 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 3 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 CIV P 6 l(f)(6) Here the Court finds it appropriate to rule on Plaintiffs' motion at this juncture Geiace eta! v Mosler eta! SX 2005 CV 368 Memorandum Opinion and Order 2022 VI SUPER 45 Page 3 of 8

greater of 20 pages or 6,000 words in length unless leave of court has been obtained in advance

foralonger submission” VI R CIV P 6 1(e)(2)

DISCUSSION

In their motion, Plaintiffmoved to exceed the page limit for their opposition to Defendants

March 22, 2022 motion by seventeen additional pages 4 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 ”5 (Id , at

p 3)

4 Plaintiffs referenced Augustin v Hess 01! V I Corp 67 VI 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 VI St PER 29 1[ II (VI Super Ct March 18, 2022) The thwm Corp v Universal 011 Prods (.0 69 V1 380 387 (VI Super Ct Sept 28 20l8)( [[]t is not the Court sjob 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 er a! v Mosler er a! SX 2005 CV 368 Memorandum Opinion and Order 2022 VI SUPER 45 Page 4 of s 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

The Court 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 National Industrial Services et a1 , 2021 V U Super SOU, S 8, see also In re Refinery Dust

Claims 72 V1 256 290 (Super Ct Dec 13 2019) (citing Mztchell v 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

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 III LLLP 2019 V I LEXIS 5 at *14 (V I Super Ct Jan 28 2019)

Davies v Certam Lnderwrzlers at 1.10de 0] London, 2017 VI LEXIS 138, *8 (VI Super Ct

Aug 25 2017) Prentice 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 CW P 6 l(e)(2) but see Augustin v Hess 011 VI Corp 67 V I 488 502

(Super Ct Aug 23, 2017) (“[T]he Supreme Court has not had occasion to address Rule 7 1

Specifically, or more generally, what inherent authority courts have to place limits on the number

inadequate ) Josephv Joseph 2015 V1 LEXIS 43 *5(Vl Super Ct Apr 23 2015)( [l]n general the Court will not make a movant s arguments for him when he has failed to do so ) Gerace eta! v Mosler e! a! SX 2005 CV 368 Memorandum Opinion and Order 2022 VI SUPER 45 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 Crozx Alumina LLC, 63 V I 153, 184 (Super Ct 2015); Jones v

Jerome, 62 VI 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 20l6) 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 ”)

In Augustm, the court referenced the discussion of the United States Tax Court in Kernan

v Commisszoner ofInternal Revenue 108 T C M (CCH) 503 (T C 2014) aff'd 670 Fed Appx

944 (9th Cir 2016) addressing the reasoning and concerns of why courts impose page limits on

court papers,6 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,

6 In Keman, 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 parties 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 l08 T C M (CCH) 503 at 9 10(footnotes and paragraph breaks omitted) Gerace eta! v Mosler eta! SX 2005 CV 368 Memorandum Opinion and Order 2022 VI SUPER 45 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 ” Id 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 Keman 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 7

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

7 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 (V1 Super Ct Mar 3 2017)(quoting In re Alumna DustClaIms 2017 VI LEXIS 2 at *26 (VI Super Ct Jan 10 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 court 3 discretion ” Augustin, 67 V l at 50] After all, the Court and not the parties has the inherent authority to manage the docket and Rule 6 I of the Virgin Islands Rules of Civil Procedure requires leave of the Court and not the agreement of the non moving party See V l R CW P 6 1(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 ( [ Henry v Dennery 2013 V 1 Supreme LEXIS 4, at ’6 (V l 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 Memorandum Opinion and Order 2022 VI SUPER 45 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)(1)(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 iorjudgment

as a matter of law and may include an alternative or joint request for a new trial under Rule 59

V I R Cw P 59(b) 3 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 Augustm, 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 ’)

3 Rule 50(b) of the Virgin Islands Rules of Civil Procedure provides (b) Renewing the Motion After Tl ial Alternative Motion for a New Trial If the court does not grant a motion forjudgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to thejury subiect to the courts 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 iudgment 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) allow judgment on the verdict, if the jury returned a verdict (2) order a new trial or (3) direct the entry ofjudgment as a matter of law V I R CIV P 50(b) Gerace eta! v Mosler e! a! SX 2005 CV 368 Memorandum Opinion and Order 2022 VI SUPER 45 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 hex DONE and so ORDERED this 079 day of April 2022

ATTEST W21%M Tamara Charles HAROLD W L WILLOCKS Clerk of the Court Presiding Judge of the Superior Court

By %W curt Cle k S I Dated war; fig