Kansas Packing Co. v. Lavilla

39 V.I. 71, 1998 V.I. LEXIS 16
CourtSupreme Court of The Virgin Islands
DecidedAugust 27, 1998
DocketCiv. No. 556/1996
StatusPublished
Cited by7 cases

This text of 39 V.I. 71 (Kansas Packing Co. v. Lavilla) is published on Counsel Stack Legal Research, covering Supreme Court of The Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kansas Packing Co. v. Lavilla, 39 V.I. 71, 1998 V.I. LEXIS 16 (virginislands 1998).

Opinion

HOLLAR, Judge

MEMORANDUM OPINION

This matter is before the Court on Plaintiff's January 16, 1998 motion for reconsideration of this Court's Order of January 5, 1998, regarding Plaintiff's December 29, 1997 motion for indemnification of costs and fees pursuant to 5 V.I.C. § 541. Plaintiff also filed, on January 16, 1998, an alternative motion for enlargement of time to file its motion for attorney's fees which this Order shall address.

I. PROCEDURAL HISTORY

This matter came before the Court for trial on December 3,1997. The Court had previously issued an entry of default against [72]*72defendant Caribbean Caviar and had dismissed this action against Mr. Michael Ball in his individual capacity as a defendant. At trial, the Plaintiff stated it was not prepared to go forward against the other individual defendant, Jose Lavilla, and the action was accordingly dismissed as against him individually also. The Court, having heard the deposition and live testimony of the parties, and having considered the evidence, signed a Judgment dated December 8, 1997, which was entered on December 9, 1997 against Caribbean Caviar Corp., a/k/a Caribbean Caviar Corporation and/or Caribbean Caviar, Inc., in the principal amount of Seven Thousand Nine Hundred Nineteen Dollars and Fifty-Seven Cents ($7,919.57), plus prejudgment interest at the statutory rate of nine percent (9%) from January 1,1994 through December 3,1997. The Court also ordered that upon submission of a timely and appropriate affidavit, costs and attorney's fees, in accordance with 5 V.I.C. § 541 et seq., would be considered.

On December 30, 1997, Plaintiff, as the prevailing party, filed a motion for indemnification of costs and fees pursuant to 5 V.I.C. § 541, accompanied by a memorandum of law in support thereof and an itemized attorney's certification of fees and costs. In its motion and accompanying documents, Plaintiff certified that it actually incurred the sum of Eight Thousand Two Hundred Thirty Two Dollars ($8,232.00) in reimbursable attorney's fees, however plaintiff voluntarily reduced the requested award to the amount of Six Thousand Dollars ($6,000.00), representing approximately seventy-five percent (75%) of its actual legal expenses. On January 5, 1998, this Court pursuant to Fed.R.Civ.P. 54(d)(1) granted Plaintiff's motion for costs, awarding it the amount of One Hundred Thirty Five Dollars ($135.00), and denied Plaintiff's motion for attorney's fees as untimely under Fed.R.Civ.P. 54(d)(2)(B). Plaintiff now seeks this Court's reconsideration of the denial of attorney's fees.

II. DISCUSSION

A. Fed.R.Civ.P. 54(d)(2)(B) Is Applicable To Litigants In The Territorial Court For Purposes Of Establishing Time Limits And Other Matters Not Inconsistent With 5 V.I.C. § 541.

The Court is confounded by Plaintiff's arguments set forth in its motion for reconsideration. In a nutshell, the Plaintiff contends that [73]*73the time limits contained in Fed.R.Civ.P. 54(d)(2)(B) are inapplicable to motions for attorney's fees filed pursuant to 5 V.I.C. § 541 in the Territorial Court. In its condescending tone, Plaintiff stated in its memorandum, "[M]oreover, had the Territorial Court wished to make it clear to the Bar that it expected motions for attorney's fees to be filed within 14 days of judgment, then this Court could easily have adopted a local rule in the Territorial Court Rules expressly saying so, thereby putting the Bar on notice of same". Contrary to counsel's diatribe, Terr.Ct.R. 7, promulgated November 16, 1994, replaced V.I. Code Ann. tit. 5, App. IV. R. 7. The earlier rule was promulgated September 13, 1975. Thus, Plaintiff and "the Bar" have been on notice for nearly twenty-three (23) years that absent an express provision of law or local rule to the contrary, the Federal Rules of Civil Procedure, the Federal Rides of Criminal Procedure and the Federal Rules of Evidence are applicable. The current Rule 7 states: "[T]he practice and procedure in the Territorial Court shall be governed by the Rules of the Territorial Court and, to the extent not inconsistent therewith, by the. . . Federal Rules of Civil Procedure. . ." Terr. Ct. R. 7 (emphasis added). Notwithstanding the fact that the Territorial Court is not a federal court, it nevertheless conforms to the Federal Rules of Civil Procedure where there is no local rule or statute to the contrary. Investigations Unlimited v. All American Holding Corp., 16 V.I. 524 (Terr. Ct. St.T. and St.J. 1979). As a result, the Court must first look to 5 V.I.C. § 541 to determine whether there is, contained in the statute itself, a provision establishing a time period within which a prevailing party must motion the Court for an award of attorney's fees under subsection (b). Under 5 V.I.C. § 541(b), the statute reads, in pertinent part:

"The measure and mode of compensation of attorneys shall be left to the agreement, express or implied, of the parties; but there shall be allowed to the prevailing party in the judgment such sums as the court in its discretion may fix by way of indemnity for his attorney's fees in maintaining the action or defenses thereto. . ." 5 V.I.C. § 541(b).

Since, the statute is void of any fixed time period for the filing of motions for attorney's fees, and there is no local rule to the [74]*74contrary, the Federal Rules of Civil Procedure must be applied. Under Fed.R.Civ.P. 54(d)(2)(B), the statute reads, in pertinent part:

"Unless otherwise provided by statute or order of the court, the motion (for recovery of attorney's fees) must be filed and served no later than Id days after entry of judgment; must specify the judgment and the statute, rule or other grounds entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought. . ." Fed.R.Civ.P 54(d)(2)(B). (Emphasis Added).

In the matter sub judice, the Court Order, while signed on Monday, December 8, 1997, was not entered by the Clerk of the Court until Tuesday, December 9, 1997. Therefore, the 14 day time period prescribed by Fed.R.Civ.P. 54(d)(2)(B) began to run the following day, Wednesday, December 10, 1997. Under a computation of time based upon Terr. Ct. R. 9, Plaintiff's motion for indemnification of attorney's fees was required to be filed on or before Tuesday, December 23, 1997. Instead of filing by Tuesday, December 23, 1997, Plaintiff filed its motion for indemnification on December 30, 1997, without seeking leave of court for additional time as required by Terr. Ct. R. 10(a)(2).

Counsel for Plaintiff then boastfully argues that ". . . in 20 years of practice in this jurisdiction . . .

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Cite This Page — Counsel Stack

Bluebook (online)
39 V.I. 71, 1998 V.I. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kansas-packing-co-v-lavilla-virginislands-1998.