Patrick Kralik v. Osage St. Croix Holdings, LLC. and Christiansted Restoration Corp.

• Court: Superior Court of The Virgin Islands
• Decided: January 13, 2021
• Docket: SX-19-CV-61
• Status: Published

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX PATRICK KRALIK '. PLAINTIFF, iCivil No sx 19 CV 61 v ’ ACTION FOR DAMAGES

CHRISTIANSTED RESTORATION CORP CITE AS 2021 V1 SUPER 1P DEFENDANTS

Appearances Lee J Rohn, Esq Lee J Rohn and Associates LLC Christiansted U S Virgin Islands For Plamtlfl

Eric A Hiller, Esq Justin King, Esq Clyde & Co US LLP Miami Florida For Defendant Osage STX Holdings LLC

Douglas L Capdeville, Esq Law Otfices of Douglas L Capdeville, P C Christiansted U S Virgin Islands For Defendant Chrzstumsted Restoration Corp

MEMORANDUM OPINION AND ORDER

WILLOCKS Presiding Judge

THIS MATTER came before the Court on Plaintiff Patrick Kralik s (hereinafter

Plaintiff ) motion to reconsider the Court 3 June 22 2020 order filed on July 6 2020 Defendant

Osage STX Holdings LLC (hereinafter Defendant ) filed an opposition thereto To date Plaintiff

has not filed a reply Klallk v Osage STX Holdmgs LLC etal SX [9 CV 6| Order 2021 VI SUPER 1? Page 2 0f [0

BACKGROUND

On January 13 2020 Defendant filed a motion to compel Plaintiff to execute discovery

authorizations (hereinafter First Motion to Compel ) An opposition and a reply were filed

thereafter On March 17 2020 Defendant filed another motion to compel discovery and compel

Plaintiff to execute discovery authorizations (hereinafter Second Motion to Compel ) An

opposition and a reply were filed thereafter Subsequently, the Court signed a memorandum

opinion and order on June 22 2020 (hereinafter June 22 2020 Order )I whereby the Court

granted Defendant s First Motion to Compel and Second Motion to Compel ordered that

‘ Defendant is entitled to costs and fees including attorney fees incurred in filing and support of

these two motions, ordered that ‘Plaintiff provide the Defendant with the properly executed

releases within FIVE (5) DAYS Delay in delivering the releases will incur sanctions in the amount

of five hundred dollars ($500 00) per each day of noncompliance with this Order and ordered

that Plaintiff will supplement discovery as indicated in the text of this document within

FOURTEEN(14)DAYS (June 22 2020 Order p 6) On July6 2020 Plaintiff filed this instant

motion for reconsideration

STANDARD OF REVIEW

Motions for reconsiderations are governed Rule 6 4 of Virgin Islands Rule of Civil

Procedure (hereinafter Rule 6 4 ) Rule 6 4 provides that a party may file a motion asking the

court to reconsider its order or decision within 14 days after the entry of the ruling unless the time

is extended by the court and [e]xtensions will only be granted for good cause shown VI R

CIV P 6 4(a) Rule 6 4 further provides that [a] motion to reconsider must be based on

' The June 22 2020 Order was entered on June 23 2020 Kralik v Osage 87X Holdmgs LLC era! SX l9 CV 61 Order 2021 VI SUPER 1P Page 1 of 10

(l) intervening change in controlling law, (2) availability of new evidence (3) the need to correct

clear error of law or (4) failure of the court to address an issue specifically raised prior to the

court 5 ruling’ and that [w]here ground (4) is relied upon, a party must specifically point out in

the motion for reconsideration where in the record of the proceedings the particular issue was

actually raised before the court V I R CIV P 6 4(b) A motion for reconsideration [i]s not a

vehicle for registering disagreement with the court's initial decision for rearguing matters already

addressed by the COUH or for raising arguments that could have been raised before but were not

W0rldw1de Fltght Servues v Government of the Virgin Islands, 51 V I 105 110 (VI

2009) (quoting Bosnc v AT&Tof the Virgin Islands 45 V I 553 312 F Supp 2d 731 733 (D V I

2004)) Generally [a] motion for reconsideration is not a second bite of the apple [Instead it

serves] to focus the parties on the original pleadings as the main event and to prevent parties

from filing a second motion with the hindsight of the [C]ourt 5 analysis covering issues that should

have been raised in the first set of motions Smith v Law OflFces of Karin A Bentz P C 2018

VI LEXIS l3 *l5 (Super Ct Jan 29 2018) (citing to In re InfimrSherman 49 VI 452 457

(V I 2008)) In determining a motion for reconsideration the Court should operate under ‘ the

common understanding that reconsideration is an extraordinary remedy not to be sought

reflexiver or used as a substitute for appeal See In re Infant Sherman 49 V I at 458

DISCUSSION

In his motion Plaintiff argued that [r]econsideration is required here because the Court 5

June 22, 2020 Order contains factual errors that led to the improper imposition of sanctions and

requested the Court to rescind its order for costs and fees and a fine of $500 00 a day (Motion

pp l 3) Plaintiff made the following assertions in support of his motion (i) [I]n the first

paragraph of the order it indicted that Plaintiff filed an additional Motion to Compel Discovery Kfallkl Osage 57X Holdmgs LLC er a1 SX l9 CV 6| Order 2021 VI SUPER 1P Page 4 of 10

and authorizations on March 17 2020 That is in error It was Defendant who filed the duplicative

motion (Id at p 1) (ii) The Court then assumes that [Defendant filed its Second Motion to

Compel] because the authorizations were not produced but as Plaintiff pointed out and the Court

has in its file Plaintiff produced the authorizations (3) three days after their receipt on January 16,

2020 7 (Id at p 2) (emphasis omitted) (iii) "The Court 5 Order also incorrectly stated that

Plaintiff conditioned the authorizations on the signing of a Confidentiality Agreement which was

not provided until February 28 2020 As can be seen from Exhibit ‘ 1 there was no such condition

on the authorizations ’ (Id ) (emphasis omitted) and (iv) [E]xcept for the Criminal

Authorizations Defendant has had authorizations fully executed since January 16 2020 The

Courts statement that these are typical authorizations in all personal injury cases is true, but for

the Criminal Authorization which usually requires some knowledge of prior criminal conduct

before being required Nonetheless the undersigned has provided that authorization (Id )

Plaintiff also requested the Court to rescind its order that Plaintiff produce tax returns for ten (10)

years within 14 days’ because ‘ Plaintiff does not have possession of additional tax returns and

couldn I possibly get them within fourteen (14) days given the current COVID pandemic and

delays at the IRB and Plaintiff has given Defendant a tax authorization, and Defendant can

acquire these records from the IRB (Id at pp 2 3)

In its opposition Defendant argued that the Court should deny Plaintiff’s motion because

“there are no extraordinary circumstances warranting such relief (Opp , p l) (emphasis omitted)

Defendant made the following assertions in support of its argument (i) Plaintiff continues to

deliberately violate this Court 3 June 22 2020 Order as he brazenly asks the Court to reconsider

’ Plaintiff referenced Exhibit l A copy of Plaintift 5 responses to Detendant 5 second request for production of documents dated January 16 2020 Kralik v Osage STX Holdings LLC 9! a1 SX 19 CV 61 Order 2021 VI SUPER 1P Page 5 01 I0

that very Order based on an inconsequential scrivener s error (Id ) (ii) ‘ Plaintiff does not argue

any of these enumerated factors [of Rule 6 4] Instead the motion is based on a harmless

scrivener s error (Id , at p 2) (iii) The scrivener’s error on the first page is totally

inconsequential and falls woefully short of satisfying his heavy burden for the extraordinary

relief of reconsideration ‘ (Id ) (iv) “Plaintiff incorrectly refers to Defendant 5 second discovery

motion as duplicative of the first but as recognized by the Court Defendant s first motion

filed January 13 2020 addresses Plaintiff’s failure to produce the discovery authorizations [and]

Defendant 5 second discovery motion filed March 17 2020 sought to compel the authorization

and to compel additional discovery to which Plaintiff failed to respond (Id at pp 2 3) (emphasis

omitted) (v) The Court recognized only that in opposition to the First Motion [to Compel]

Plaintiff’s counsel argue[d] that this matter [was] moot because Defendant s counsel sent the

release forms again properly modified—on January 13, 2020 and the Plaintiff has been asked to

go to Counsel s office to sign them and ‘the Court made no finding that Plaintiff provided proper

authorization forms to Defendant on January 13 ” (Id at p 3) (vi) “Plaintiff misrepresents that

there was no such condition on the authorizations while producing exhibits that actually contain

the very conditions he explicitly denies The bottom of each of those documents contains the same

language added to the forms that Defendant presented in its Second Motion [to Compel] stating

that the execution of the forms is CONTINGENT UPON and SUBJECT TO THE

CONFIDENTIALITY AGREEMENT IN THIS MATTER (Id at pp 4 5) (emphasis omitted)

(vii) “To date Plaintiff has still not complied with this Court 5 order’ and remains in violation of

the Order (1d at pp 4 6) (viii) As to Plaintiff’s request for the Court to rescind its order that

:31e9ffndant reierenccd Merchants Comm Bankv Oceanside VI” Inc 2019 WL 7972136 *2 (Super Ct Nov 22 Krallk t Osage STX Holdings LLC et a1 SX l9 CV 6| Order 2021 VI SUPER 1P Page 6 of IO

Plaintiff produce tax returns even if Plaintiff’s representation is true, the Virgin Islands Rules

of Civil Procedure provide a mechanism for him to both comply with this Court’s Order and the

Virgin Islands Rules of Civil Procedure That is, when a party is without sufficient information

and objects on that basis he may appropriately respond that no such documents exist and indicate

that no documents are being withheld on that basis Plaintiff has still produced no such response

as provided by the Rules 4 (Id )

As noted above, a proper Rule 6 4 motion must rely on one of four grounds (1) intervening

change in controlling law (2) availability of new evidence, (3) the need to correct clear error of

law or (4) failure of the court to address an issue specifically raised prior to the court 5 ruling ”

VI R CIV P 6 4(b) In his motion Plaintiff argued that “[r]econsiderati0n is required here

because the Court 5 June 22 2020] Order contains factual errors ’ However the language of Rule

6 4 clearly only provides four grounds for reconsideration and factual errors is not one of the

four grounds The Court finds the pertinent language of Rule 6 4 plain and unambiguous, and

thereby the Court will give effect to the plain words of the rule See Banks ofN S v Dore 57 V I

105 l l3 14 (Super Ct Oct 19 2012) (citing Corraspe v People 53 V I 470 480 481 (V I

2010) ( The rules of this Court are applied using the same standards which govern the construction

of statutes ’ and the primary objective of the trial court is to give effect to plain words utilized in

the subject rule ), People v Rivera 54 V I “6 125 (Super Ct 2010)( The procedural rules of

courts are construed in accordance with the canons of statutory construction ) In re People 49

V I 297 306 (V I 2007)) ( We believe the pertinent language is plain and unambiguous thereby

‘ Defendant referenced V I R CIV P 34(b)(2)(C) ( An objection must state whether any responsive materials are being withheld on the basis of that objection An objection of part of the request must specify the part and permit inspection of the request ) Kraltk t Osage STX Holdings LLC et a! 9X I9 CV 6| Order 2021 VI SUPER 1P Page 7 of IO

dispensing with a resort to the canons of construction ) As such Plaintiff’s motion though timely

filed, failed to raise an adequate ground under Rule 6 4 for this Court to reconsider its June 22,

2020 Order and the Court will deny Plaintiff’s motion ‘

The Court must point out that the factual errors alleged by Plaintiff are either harmless

error, or Plaintiff's misconstruction of the June 22, 2020 Order or an argument that should have

been raised previously but was not First, Plaintiff asserted that the June 22 2020 erroneously

indicated that Plaintiff instead of Defendant filed the Second Motion to Compel While the Court

inadvertently stated that Plaintiff instead of Defendant filed the Second Motion to Compel on the

first page of the June 22 2020 Order the Court correctly stated that Defendant not Plaintiff filed

the Second Motion to Compel on the second page and the sixth page of the June 22 2020 Order 6

Thus the scrivener’s error on the first page was harmless Second Plaintiff asserted that the Court

incorrectly assumed in the June 22 2020 Order that Defendant filed the Second Motion to Compel

because the authorizations were not produced when Plaintiff had already produced the

authorizations on January 16 2020 three days after Defendant filed the First Motion to Compel

Plaintiff never indicated in her motion where such an assumption was made by the Court Unlike

what Plaintiff asserted the Court did not assume nor make such a finding that Defendant filed the

5 In his motion Plaintili requested the Court to rescind its order that Plaintitf produce tax returns tor ten (10) years within 14 days However the June 22 2020 Order never ordered Plaintifi produce tax returns for ten (IO) years within 14 days Instead the June 22 2020 Order ordered Plaintitf to supplement discovery within tourteen days Thus even if Plaintilt does not have possession cl additional tax returns and couldn I possibly get them within fourteen (I4) days given the current COVlD pandemic and delays at the [RB as claimed by Plaintiff Plaintiit could still supplement his discovery responses pursuant Virgin Islands Rules of Civil Procedure Defendant claimed in its opposition that Plaintiff has not supplemented hlS discovery responses and thereby Plaintifl is still not compliant with the Court 5 June 22 2020 Order Plaintiff never filed a reply to dispute Defendant 5 claim 6 Page two of the June 22 2020 Order provides in relevant part The Defendant’s Second Motion was filed more than a month after the Opposition and Reply were filed (June 22 2020 Order p 2) Page six of the June 22 2020 Order provides in relevant part ORDERED that the Defendant 5 Motion to Compel Discovery and compel Plaintitf to Execute Discovery Authorizations is GRANTED (Id at p 6) Kralik v Osage STX Holdmgs LLC et a1 SX I9 CV 61 Order 2021 VI SUPER 1? Page 8 of 10

Second Motion to Compel because the authorizations were not produced In the June 22, 2020

Order the Court acknowledged that the parties’ positions in their respective filings to wit

Plaintiff’s opposition to Defendant s First Motion to Compel indicated that Defendant sent

Plaintiff revised release forms and that the issue was moot Defendant 3 Second Motion to Compel

indicated that Plaintiff decided to execute the releases subject to a confidentiality agreement but

the agreement was not provided to the Defendant until February 28 2020 ’ 7 Thus, there is no error

as alleged by Plaintiff Third Plaintiff asserted that the Court incorrectly stated that Plaintiff

conditioned the authorizations on the signing of a Confidentiality Agreement which was not

provided until February 28 2020 Again, unlike what Plaintiff asserted, the Court did not assume

not make such a finding that “Plaintiff conditioned the authorizations on the signing of a

Confidentiality Agreement which was not provided until February 28 2020 In the June 22 2020

Order the Court acknowledged that Defendant in its Second Motion to Compel indicated that

Plaintiff decided to execute the releases subject to a confidentiality agreement but the agreement

was not provided to the Defendant until February 28, 2020 8 Thus there is no error as alleged by

The June 22 2020 Order provides in relevant part In the very brief opposition, Plaintiff’s counsel argues that this matter is moot because Defendant’s counsel sent the release forms again properly modified—on January 13, 2020 and the Plaintiff has been asked to go to counsel’s office to sign them (Opp n l ) The releases will reportedly be sent nut within thirty days as per the request tor production that they accompanied (Id) In the Reply the Detendant argues that the Plaintilf is still attempting to delay and that waiting an additional thirty days is unreasonable (Reply, 1 3) The Defendant 5 Second Motion was filed more than a month alter the Opposition and Reply were filed Therein Defendant s counsel again asserts that Plaintill s counsel is stonewalling discovery and refusing to confer (Second Mot I ) According to the Defendant, the Plaintiff decided to execute the releases subject to a confidentiality agreement, but the agreement was not provided to the Defendant until February 28, 2020 (Id at 3 ) On March 3 2020 the Defendant informed the Plaintiff that it intends to proceed with these motions rather than sign the confidentiality agreement (Id) This was after multiple attempts to set up a time to meet and confer between January and the end of February (1d) On February 27 2020 at an agreed upon time Defendant’s counsel called Plaintiff s counsel to confer and was told they would have to reschedule due to unavailability (Id at 4) The Defendant asserts that the Plaintiff has failed to act in good faith (Id )(June 22 2020 Order pp 2 3) (emphasis added) a See supra note 6 Krallk v Osage 57X Holdings LLC er a! 5X l9 CV 6| Order 2021 VI SUPER 1P Page 9 of 10

Plaintiff Finally Plaintiff asserted that ‘ [t]he Court 5 statement that these are typical

authorizations in all personal injury cases is true but for the Criminal Authorization which usually

requires some knowledge of prior criminal conduct before being required It appears that Plaintiff

is claiming that the Court incorrectly stated that these are typical authorizations because the

criminal authorization is not 9 However this is an argument that could have been raised before but

was not More specifically Plaintiff had two opportunities to raise her argument regarding the

criminal authorization in his opposition to Defendant s First Motion to Compel'° and in his

opposition to Defendant 5 Second Motion to Compel” and Plaintiff chose not to The Court will

not let Plaintiff rclitigate the issue now As noted above, a motion for reconsideration [i]s not a

vehicle for registering disagreement with the court s initial decision, for rearguing matters already

addressed by the court, or for raising arguments that could have been raised before but were not

WorldWIde FlzghIServzces 5! VI at “0

CONCLUSION

Based on the foregoing the Court do not discern any extraordinary or special

circumstances that would have justified granting Plaintiff’s motion for reconsideration See In re

Infant Sherman, 49 V l at 458 (In determining a motion for reconsideration the Court should

operate under the common understanding that reconsideration is an extraordinary remedy not

9 The June 22 2020 Order provides in relevant part The Court agrees with the Defendant that Plaintitf s counsel is stalling Not only are these releases standard for personal injury and discoverable but Delendant s counsel even edited them to include language requested by Plaintiff’s counsel '0 Defendant 5 First Motion to Compel requested an order compelling plaintiff to execute authorizations to disclose medical information insurance information income tax records, unemployment and workmen’s compensation records, and criminal records (First Motion to Compel, p 5) (emphasis added) " Defendant 5 Second Motion to Compel requested ‘an order compelling plaintift to execute authorizations to disclose medical information insurance information income tax records unemployment and workmen s compensation records and criminal records " (Second Motion to Compel p 8) (emphasis added) Krallk v Osage STX Holdings LLC eta! SX 19 CV 6! Order 2021 VI SUPER 1P Page 10 of [0

to be sought reflexiver or used as a substitute for appeal ) As such the Court will deny Plaintiff’s

motion for reconsideration filed on July 6, 2020 Accordingly it is hereby

ORDERED that Plaintiff’s motion for reconsideration filed on July 6 2020 is DENIED

DONE and so ORDERED this ‘ 6 day of January 2021

; HAROIjE W L WILLOCKS j Presiding Judge of the Superior Court