Raymond Berkeley vs.Michele Berkeley, Individually and as Trustee of the Trust Agreement of Barbara T. Berkeley

• Court: Superior Court of The Virgin Islands
• Decided: February 24, 2021
• Docket: SX-20-CV-121
• Status: Published

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST CROIX

RAYMOND BERKELEY

PLAINTIFF, Civil No SK 2020 CV 121

V ACTION FOR ACCOUNTING SPECIFIC PERFORMANCE

AS TRLSTEF OF THE TRUST AGREEMENT CONVERSION BAD FAITH and CF BARBARA T BERKELEY DECLARATION JUDGMENT DEFENDANT CITE AS 2021 VISUPER 2g? Appearances Andrew L Capdeville, Esq Law Offices of Andrew L Capdeville P C St Thomas US Virgin Islands For Plamttfi‘s

Yohana M Manning, Esq McChain Hamm & St Jean LLP St Croix U S Virgin Islands For Defendant

MEMORANDUM OPINION

WILLOCKS Presiding Judge

(11 1 THIS MATTER came before the Court on Plaintiff Raymond Berkeley 9 (hereinafter

Plaintiff ) motion to compel Defendant Michele Berkeley individually and as Trustee of The

Trust Agreement of Barbara T Berkeley (hereinafter Defendant ) to respond to Plaintiff s

discovery requests and abide by the scheduling order filed on January 5 202i To date Defendant

has not filed an opposition thereto

BACKGROUND

‘11 2 On February 6 2020 Plaintiff filed a complaint against Defendant in connection with

Barbara T Berkeley s trust established by The Trust Agreement of Barbara T Berkeley dated

December 2 1997 Plaintiff‘s complaint alleged the following causes of action Count I Specific Bmkelex L Berkelm 9X 2020 CV 12] Memorandum Opinion 2021 v1 SUPER AZ? Page 2 of 16 Performance Count II Breach of Fiduciary Duty Count III Unjust Enrichment Count IV Bad

Faith and Unfair Dealings Count V Conversion and Count VI Declaratory J udgment On May 5

2020 Defendant filed an answer On September 8 2020 the parties submitted a joint proposed

discovery and scheduling plan which the Court approved and entered on September 28 2020

(hereinaftei Scheduling Order ) According to the Scheduling Order [21]“ initial disclosures

pursuant to V I R Civ P 26(a) shall be served on all parties not later than October 1, 2020 and

[21]“ written interrogatories requests for production of documents and requests for admissions

shall be completed not later than December 16, 2020 (Scheduling Order) (emphasis in original)

‘II 3 On October 2 2020 Plaintiff filed a notice of service of Plaintiff’s initial disclosures

pursuant to Rule 26(a)( l )(A) of the Virgin Islands Rules of Civil Procedure On October 30 2020

Plaintiff filed a notice of service advising the Court that the following documents were served on

Defendant via her COUDSCI Yohana M Manning Esq on October 30 2020 Plaintiff s first set of

intetrogatories t0 Defendant Plaintiff 9 first requests for admissions to Defendant and Plaintiff 9

first request for production of documents to Defendant On January 5 202l Plaintiff filed this

instant motion Plaintiff’s motion included the following certification I hereby certify that

undersigned Counsel has in good faith conferred or attempted to confer with Defendant s Counsel

to make disclosure or discovery in an effort to obtain it without court action

STANDARD OF REVIEW

<][ 4 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 I mandates

that the moving party submlt a certification with its motion certifying that both parties engaged in Berkelen Berkelm SX 2020 CV 12! Memorandum Opinion 2021 VI SUPER 2.}? Page I 01 16

substantive good faith negotiations before filing a discovery motion V I R CIV P 37(a) and

37 1(a) '

‘I[ 5 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 Cw P 37

If the motion is granted or if the disclosure or requested discovety is provided after the motion

was filed 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 5 reasonable expenses ineurted in making the motion including attorney 3 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 coun action (ii) the opposing party 5

nondisclosure response or objection was substantially justified or (iii) other circumstances make

an award of expenses unjust V I R CIV P 37(a)(5)(A) On the other hand [Hf the motion is

denied the court may issue any protective order authorized under Rule 26(c) and must after giving

an opportunity to be heard require the movant the attorney filing the motion or both to pay the

party or deponent who opposed the motion its reasonable expenses incurred in opposing the

' Rule 17 proyides (a) Motion for an Order Compelling Disclosure or Discoury {1) In Geneml On notite to other parties and all affected persons a party may mow tor an order compelling diselosun. 0r discovery The motion must include a certification that the mmant has in good faith conferred or attempted to Lonter with the person or party tailing to make diselosure or disco» cry in an effort to obtain it without mun action VI R Cw P ”47(a) Rule 17 I provides (a) Good Faith Negotiation Requirement Prior to filing any motion relating to discovery pursuant to Rules 26 through 37 other than a motion relating to depositions under Rule '50 counsel tor the patties and any 5e“ represented parties shall confer in a good faith effort to eliminate the neceseity tor the motion or to eliminate as many of the disputes as possible VI R CW P 171w) Bcrkelet I Betkelet 5X 2020 CV 12] Memorandum Opinion 2021 VI SUPER 17'? Page 4 01 16

motion including attorneys fees [b]ut the court must not order this payment if the motion was

substantially justified or other circumstances make an award of expenses unjust V I R CIV P

37(a)(5)(B) And [i]f the motion is granted in part and denied in part the court may issue any

protective order authorized under Rule 26(c) and may after giving an opportunity to be heard

apportion the reasonable expenses for the motion VI R CIV P 37(a)(5)(B) The imposition of

sanctions for abuse of discovery under Rule 37 is a matter within the discretion of the trial court 7

Dans l Varlack Ventures Inc 59 V I 229, 236 (V I 2013), see also Pedro v Ranger Am offhe

VI Inc 7OVI 251 294 (Super Ct 2019) see also Mollm t [ndependenceBlue Cross 56 VI

155 168 (V I 2012) (noting the trial court 5 broad discretion to control discovery)

DISCUSSION

‘l[ 6 In his motion Plaintiff requested the Court to enter an order compeIling Defendant to

respect the previously submitted Discovery Plan and tender her outstanding discovery

responses (Motion p 5) Plaintiff made the following assertions in support of his request (i)

The parties respective counsels have corresponded and conferred regarding the outstanding

discovery without resolution of the impasse (Id at p 2)‘ (ii) Defendant never sewed any

discovery requests on Plaintiff and according to the scheduling order is precluded from

propounding written discovery (Id) (iii) [T]he parties have conferred regarding Plaintiff” s

outstanding discovery requests Plaintiff granted Defendant an extension on November 23 2020

and again a1beit reluctantly on December 10 2020 I (Id atp 3) (iv) Two years have passed

I The Dans court was addressing Rule 37 01 Federal Rules of Civil Prmedure (hereinafter Federak Rule 37 ) Rule 37 was modeled after Federal Rule 37 Thus the Court finds the discussion in Dam applicable in this instance 1 Plaintiff explained in his motion Counsel for Defendant contented Plaintitt s attorney on Nmember 23 2020 to request an extension through December 11 2020 in order to auommodate Defendant 5 serum, as a medical protessional during the ongoing pandemic. That request was granted without objection However on December 10 2020 counsel Bmkelen Bezkeln 9X 2020 CV [21 Memorandum Opinion 2021 VI SUPER 12-? Page 5 0t l6

since the death of the parties mothet Barbara Berkeley and yet her wishes fox the distribution of

her assets to hex children has yet to be honored (Id at p 4) (v) Defendant failed to tender her

responses as required by the Rules of Civil Procedure the Court approved Discovery Plan or the

Defendant s own proposed deadline of December 18 2020 (Id ) (vi) Defendant s actions are

contemptuous and deserve sanction by this Court (Id ) and (vii) GiVen that the Trust remains

shrouded in mystery and without adequate accounting the possibility that assets are being wasted

or absconded while Defendant tarries remains plausible (Id ) As such Plaintiff also requested

the Court to enter an order sanctioning Defendant in the amount of the feeS‘ and costs associated

with the instant Motion to Compel and any litigation thereof (Id at p 5)

fl7 The Court will note at the outset that the Court finds Plaintiff 5 good faith negotiations

certification included in his motion satisfactory and in compliant with Rule 37 and Rule 37 l

1 Plaintiff’s Motion as to Defendant’s Failure t0 Disclose

‘11 8 Rule 26 0f the Virgin Islands Rules of Civil Procedure (hereinafter Rule 26 ) requires

that {c]xcept as exempted by Rule 26(a)( l )(B) or as otherwise stipulated or ordered by the court

a party must without aw aiting a discovery request provide to the other parties certain information

and documents 4 Rule 37 governs Rule 26 violations Rule 37 provides that [ilf a party fails to

tor Defendant again requested delay promising to complete discovery in an additional two Weeks Plainlilt s counsel did not consent to the requesl but in an attempt to accommodate Defendant requasted that discmery be tendered within one week The undersigned rcaLhed out (0 Defendant s attorney on December 15 2020 inquiring 0f the status Defendant promised to complete discovery by Friday Deeember I8 2020 That deadline passed without the outstanding discovery being completed On December 22 2020 Defendant s attorney requested an unspecified amount of additional time citing Delendanl s role as a physician and first responder (Motion pp 2 7,) 4 Rule 26 provides ( l) Rewind D‘mlmurts ( l ) Inmu/ Dist [mun Berkeley 1 Berkeley 9X 2020 CV 12% Memorandum Opinion 2021 VI SUPER 7.2? Page 6 of E6

make a disclosure required by Rule 26(a) any other party may move to compel disclosure and for

appropriate sanctions V i R CIV P 37(a)(3)(A) Under Rule 37 the sanctions for failure to

disclose or supglement may include ‘the party not allowed to use that information 01 witness to

supply evidence on a motion at a hearing or at a triai, un§ess the failure was substantially justified

or is harmlees and {flu addition to or instead of this sanction the court on motion and after

giving an opportunity to be heard (A) may order payment of the reasonabie expenses including

attorney 5 fees caused by the failure, (B) may inform the jury of the party's failure and (C) may

impose other appropriate sanctions including any of the orders listed in Rule 37(b)(2)(A){i) (vi) ‘

(A) In (Jewry! i xLept as LXLalELd h) Ruin, ”fit I)( 1 MB) 01 As UthutAtM. stipuhmd m urtiutd h). thL mutt a petty must without waitinu a dimmer} ILqULbl prmhh tn the 01er patties ti) tht. name 1an it known “14., mime» and ldephnm numer u! LdLh indixidual iikely tn hate diswumhh intmmatitm 11mg Vt ith thL huhiuts 0| that inlurm ttiun that th dimiminu putt} may use to support its LEdifllh 0| stLlths tinth the use mould ht sold} tor imp; Munch: {tihl mp} of til downturns clutmnimlE} 510m} inflammation and tungihit, thintas that the disclosing party. has in its ptxssessinn eustmiy 0r wntmi and may use In summit its Litmus 0r (tetanus tank» thy um. mtuid be sold} Eur httpLuLhmuat unless it uouEd h; undut} buufubmm tn {JIUGULL twp} of m Run in Maid] mm mm item must hL dunk), ititlfliiiLd along with a stathLnt d5 {0 M1) Lani} Latino! tmntiiy be wphd and imhtdinq a tiesuiption vi the lumtinn where each can he ruiurtui (iii) ‘1 Lumput 1mm of Lad] Latwury 0t damavn LEaimLG by tin. disdoaing pasty “it?! ah uuppottint dmuments in the putt) s mullet pmduud as ruched Ufiitbb prixiELng 0r protutui 1mm distimuu on “huh each Lumputation is bus“! intEuding mutual,» he 1:th (m the mum. and aunt of infill: ins nuttued md tine] LOP} u! an), immune; AUILeanE ptimut) m ()thLi\\i5L under which an insutanu. busing» m t) bl. liahEe 10mm!) a1! 0; pm of (t possible judgment in [ht action 0| :0 indutmit) 0r autumn» Eur paymmts math to satisfy the iudummt ind m) Limumutb rewind hum insuer £th mm to an) Ieset‘hfiitm 0t Iiehts 0: mm :1 0t Ltl‘.Cld“L VI R CW P 26(a)(l){A)(i) UV) Rule 37(b)(2)(A)ti) (Vi) provides (i)directing that the matters embraced in the order or other designated facts be taken as estabiished tor purposm of the adieu as the prevaiiing party claims (ii) prohibitino the disobedient patty horn supporting or opposing designated claims or defenses or tram introducing designated matters in evidence (iii) striking pleadings in whole or in part (it) stayint: turthet proceedings untiE the order is obeyed (V) dismissing the action or proceeding in whole or in part (Vi) rendering a detauit judgment against the disobedient party 01‘ VI R CW P 37(b3(2)(A)ti) (Vi) Berkelei t Belké’lé’) SX 2020 CV l2l Memorandum Opinion 2021 VI SUPER 2.2.? Page 7 0t [6

V I R CW P 37(c)(1) In discussing Rule 37 sanctions for Rule 26 Violations the Virgin Islands

Supreme Court clarified in Dam that [s}ubstantial justification for failing to disclose is satisfied

if there exists a genuine dispute concerning compliance Dams 59 V I at 236 The Virgin Islands

Supreme Court further clarified that when determining whether a violation is harmless the court

should consider a number of factors prejudice or surprise to the opposing party the ability of the

party to cure that prejudice the likelihood of disruption at trial and the bad faith or willfulness 0f

the violating party [d at 237

(ll 9 Hele Defendant violated Rule 26 when he failed to timely serve his initial disclosures

Defendant did not argue since Defendant did not file an opposition that the failure was

substantially justified or that the failure is harmless While the Court does not find the failure

substantially justified the Court finds in weighing the fact01s outlined by the Dam court the

failure harmless to wit Defendant has the ability to cure any prejudice the failure may have

caused thus far and this matter is still in the early stages so no likelihood of disruption at trial and

these factors outweigh any potential bad faith or willfulness 0f the violating party The Court is

cognizant of Viigin Islands Supreme Court 5 longstanding instruction that the preference is to

decide cases on their merits and that any doubts should be resolved in favor of this preference

Sarazm i chket 66 V I 253 265 (V I 2017) (quoting Fuller v Browne 59 V I 948 956 (V I

2013) (quoting Spencer v Nmarro 2009 V I Supreme LEXIS 25 at 9 (V I 2009)

(unpublished)) Thus at this juncture the Court wilt grant Plaintiff is motion as to Defendant s

failute to serve initial disclosures order Defendant to serve her initiaI disclosures and order

Defendant Defendant s counsel or both to pay the reasonable expenses including attorney 3 fees

caused by the failure See Pedro 70 VI at 294 (quoting Dans 59 VI at 236 (2013) (The

imposition of sanctions for abuse of discovery [procedures] under [V I R CW P ] 37 is a matter Berkelett Bmkelex SK 2020 CV l2] Memorandum Opinion 2021 VI SUPERZ Z? Page 8 of 16

within the discretion of the trial court )) see also V I R CIV P 37(a)(5)(A) ( If the motion is

granted or if the disclosure or requested discovery is ptovided after the motion was filed 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 5

reasonable expenses incurred in making the motion, including attorney 5 fees ) In support of its

order of payment of reasonable expenses the Court finds that (i) Plaintiff filed the motion after

attempting in good faith to obtain the disclosune or discovery without court action (ii) Defendant s

nondisclosure response or objection was not substantially justified and (iii) no other

circumstances make an award of expenses unjust See V I R CIV P 37(a)(5)(A)

2 Plaintiff’s Motion as to Defendant’s Failure to Respond to Interrogatories and Requests for Production

‘ll 10 Rule 33 of the Vilgin Islands Rules~ of Civil Procedure (hereinaftet Rule 33 ) permits a

party to setve on any other party written interrogatories V I R CIV P 33(a) and requires that

[eldch intelrogatory must to the extent it is not objected to be answered separately and fully in

writing under oath V I R CIV P 33(b)(3) Rule 34 of the Virgin Islands Rules of Civil 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 CIV P 34(a) and requires

that [f]0r 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 of documents

or of electronically stored information instead of permitting inspection VI R CIV P

34(b)(2)(B) Under Rule 34 [t]he production must then be completed no later than the time for Berkelett Berkelet 3X 2020 CV 12] Memorandum Opinion 2021 VI SUPER 22? Pagt. 9 0f l6 inspection specified in the requefit or another reasonable time specified in the response VI R

CIV P 34(b)(2)(B) Rule 37 governs Rule 33 and Rule 34 violations

(ll 11 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 party fails to produce documents or fails to respond that

inspection will be petmitted or fails to permit inspection as requested under Rule 34 VI R

CIV 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 CIV P 37(d)(1)(A)(ii) Rule 37 further provides that {a} failure

described in Rule 37(d)(l)(A) is not excused 0n the ground that the discovery sought was

objectionable unless the party failing to act has a pending motion fox a protective order under Rule

26(0) V I R CIV P 37(d)(2) Under Rule 37 [s]ancti0ns may include any of the orders listed

in Rule 37(b)(2)(A)(i) (vi) 6 and [ilnstead 0f or in addition to these sanctions the court must

require the party failing to act the attorney advising that party or both to pay the reasonable

expenses including attorneys fees caused by the failure unless the failure was substantially

justified or other circumstances make an award of expenses unjust V I R CIV P 37(d)(3)

‘11 12 Here Defendant violated Rule 33 and Rule 34 when he failed to timely respond to

Plaintiff s first set of interrogatories and Plaintiff s first request for production of documents

There is no pending motion for a protective order under Rule 26(0) so Defendant 3 failure is not

excused Defendant did not argue since Defendant did not file an opposition and the Court does

not find that the failure was substantially justified or other circumstances make an award of

expenses unjust See Dans 59 VI at 236 ( Substantial justification for failing to disclose i9

6 See supra footnote 4 Berkeley 1 BEIke‘lfl SK 2020 CV [21 Memorandum Opinion 2021 VI SUPER 22‘? Page 10 of 16

satisfied if there exists a genuine dispute concerning compliance ) 7 Thus at this juncture the

Court will grant Plaintiff s motion as to Defendant 9 failure to respond to Plaintiff‘s first set of

interrogatories and Plaintiff s first request for ptoduction of documents order Defendant to serve

he1 responses to Plaintiff s first set of interrogatories and Plaintiff s first request for production of

documents and order Defendant Defendant s counsel or both to pay the reasonable expenses

including attorney 9 fees caused by the failure See Pedro 70 V I at 294 (quoting Dam 59 V I

at 236 (2013) (The imposition of sanctions for abuse of discovery {procedures} under [V I R

CIV P ] 37 is a matter within the discretion of the trial court )) see also V I R CIV P

37(a)(5)(A) ( If the motion is granted or if the disclosure or requested discovery is provided

after the motion was filed 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 5. reasonable expenses incurred in making the motion including

attorney 3 fees ) In support of its order of payment of reasonable expenses the Court finds that

(i) Plaintiff flied the motion after attempting in good faith to obtain the disclosure or discovery

without court action (ii) Defendant s nondisclosure response or objection was not substantially

justified and (iii) no other circumstances make an award of expenses unjust See V I R CIV P

37(a)(5)(A)

1 The Dans wart provided the LlaritiLation for substantial justification while discussing Rule 37 sanctions for Rule 26 violations Nexertheiess the phrase substantially justified is used throughout Rule 37 and the Court finds no reason to attribute a different standard or meaning to the same phrase within the same rule and thereby the Court also finds the Llarification tor substantialjustification set forth in Dans applicable for Rule 37 sanctions for Rule 33 and Rule 34 Violations Betkelex t Betkelet SK 2020 CV 121 Memorandum Opinion 2021 VI SUPER 22'? Page 11 m 16

3 Plaintiff’s Motion as to Defendant’s Failure to Respond to Requests for Admissions

‘11 13 Rule 36 of Vi1 gin Islands Rules of Civil Procedure (hereinafter Ru1e 36 ) permits a party

to serve on any other party written tequests for admissions V I R ClV P 36(3) and [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 01 its attorney VI R CW P 36(a)(3) A matter admitted under this [Rule 36] is

conclusively established unless the count on motion permits the admission to be withdrawn or

amended V I R CIV P 36(b) Howexer [a]n admission underthis rule is not an admission for

any othet pulpose 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 ate not permitted under Rule 36 because it c0u1d lead to parties

stipulating to the lav» 8 Watson v Gm 10f the Vlrgmlslarzds 2017 VI LEXIS 43 J‘10 12(Super

Ct March7 2017) see Matthew v Herman 56 VI 674 682 (VI 2012)( parties eannotstipulate

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

cases )‘ see also Der Weer 1 Hess 011 VI Corp 64 V I 107 2016 V I LEXIS 21 *54( the

patties cannot stipulate to the law not explicitly by agreeing on the applicable law or implicit1y

by not questioning what law applies ) (internal quotation marks and citations omitted) Rule 37

governs Rule 36 violations where 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 V I R CIV P

37(C)(2)

3 The Watson court was addressing Rule 36 01 Federal Rules 01 Civil Freeware (hereinafter Federal Rule 36 ) Rule 36 was modeled after Federal Rule 36 Thus the Court finds the diseussion in Watson app1ieable in this instance Berkeleii Berkeles 3X 2020 CV 12] Memorandum Opinion 2021 VI SUPER ‘27.? Page 12 of 16

‘I[ 14 Here based on the record Plaintiff c,erved Defendant with inter alia Plaintiff s first

requests for admissions on October 30 2020 and to date Defendant has not served her responses

thereto While Plaintiff’s motion did not specifically move to deem facts admitted 9 it is not

necessary to do so Under Rule 36(a)(3) matters contained in Plaintiff 5 requests for admissions

piovided that the requests fall within the scope of Rule 36(a)(l) were automatically deemed

admitted since more than thirty days have passed after Defendant was served and Defendant has

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 selves on the

requesting party a written answel or objection addressed to the matter and Signed by the party or

its attorney ) As such the Court must review the requests for admissions and make a finding as

10 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 Plaintiffs 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)( l) )

However Plaintiff did not include a copy of Plaintiff s first requests for admissions with this

motion Thus at this juncture the Court will grant Plaintiff s motion as to Defendant 5 failure to

respond to Plaintiff s first requests for admissions order Plaintiff to file a copy of Plaintiff’s first

requests for admissions reserve ruling on which requests fall within the scope of Rule 36(a)(1)

and order Defendant Defendant s counsel or both to pay the reasonable expenses including

attorney 3 fees caused by the failure See Pedro 70 V I at 294 (quoting Dams 59 V I at 236

9 In his motion Plaintiff mmed for an order from this Court compelling Defendant to tender her outstanding discovery responses (Motion p 5) Belkelett Belkelex SK 2020 CV l2] Memorandum Opinion 2021 VI SUPER 212-? Page H of 16

(2013) (The imposition of sanctions for abuse of discovery [procedures] under [V I R Clv P ]

37 is a matter within the discretion of the trial court )) see also V I R CW P 37(a)(5)(A) ( If

the motion is granted or if the disclosure or requested discovery is provided after the motion was

filed 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

movants reasonable expenses“ incurred in making the motion including attorneys fees ) In

support of its ordet of payment of reasonable expenses the Court finds that (i) Plaintiff filed the

motion after attempting in good faith to obtain the disclosure or discovery without court action

(ii) Defendant s nondisctosure response or objection was not substantially justified and (iii) no

other circumstances make an award of expenses unjust See V I R CW P 37(a)(5)(A)

4 Plaintiff’s Motion as to Defendant’s Failure to Comply with the Scheduling Order

(ll 15 Rule 37 provides that [i]f a party or a party 5 officer director 01 managing agent or a

witness designated under Rule 30(b)(6) or 31(a)(4) fails to obey an order to provide or permit

discovery including an order under Rule 26(f) 35 or 37(a) the court where the action is pending

may issue further just orders including sanctions listed in Rule 37(b)(2)(A)(i) (vii) m and

[i3nstead of or in addition to the OFdCI‘Q above the court must order the disobedient party the

m Rule 37(b)(2)(A)(i) (\i) provides (i) directing that the matters embraced in the order or other designated facts ht. taken as established for purposes of the action as the prev ailing party claims (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses or from introdudnt.y designated matters in evidenee (iii) striking pleadings in whole or in part (it) stayina further proceedings until the order is obeyed (v) dismissing the action or proceeding in whole or in part (vi) rendering a default judgment against the disobedient party or (vii) treating as contempt of court the tailure to obey an) order except an order to submit to a physical or mental examination V1 R CIV P ?7(b)(2)(A)(i) (Vii) Berkelext Berkelm 9X 7020 CV 12I Memorandum Opinion 2021 VI SUPER‘ZZ? Page 14 0t [6

attomey advising that party or both to pay the reasonable expenses including attorneys fees

caused by the failure unless the failure was substantially jugtified or Other circumstances make an

award of expenses unjust pursuant to V I R CIV P 37(b)(2)(C)

‘11 16 Here Defendant violated the Scheduling Order when Defendant failed to provide the initial

disclosures failed to respond to Plaintiff‘s discovery requests and failed to propound written

digcovery befone the expiration of the deadlines set forth in the Scheduling Order Defendant did

not argue since Defendant did not file an oppogition and the Court does not find that the

failuxe was substantially justified or other circumstances, make an award of expenses unjust See

Dams 59 V I at 236 ( Substantial justification for failing to disclose is satisfied if there exists a

genuine dispute concerning compliance ) ” Thus at this junctune the Court will grant Plaintiff s

motion as to Defendant 5 failure to comply with the Scheduling OIdCI order that Defendant is

prohibited unless Defendant obtains leave from the Court from propounding written

interrogatories requests for production of documents and requests for admissions in this mattel

since the deadline set forth in the Scheduling Order expired on December 16 2020 and ordex

Defendant Defendant s counsel or both to pay the reasonable expenses including attorney 5 fees

caused by the faiIure See Pedro 70 VI at 294 (quoting Dan: 59 VI at 236 (2013) (The

imposition of sanctions for abuse of discovery [procedures] under [V I R CIV P ] 37 is a matter

within the discretion of the trial court )) see also V I R CIV P 37(a)(5)(A) ( If the motion is

granted or if the disclosure or requested discovery is provided after the motion was filed 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

" See supra footnote 6 The mutt similarly finds the LlarifiLation tor substantiaI justification set 10th In Dans applieable tor Rule 37 sanctions tor violations oi the Scheduling Order B€Ik€l€\1 Belkelm 9X 2020 CV l2! Memorandum Opinion 2021 VI SUPER 2}? Page 15 0f [6

reasonable expenses incurred in making the motion including attorney 5 fees ) In support of its

order of payment of teas‘onable expenses the Court finds that (1) Plaintiff filed the motion after

attempting in good faith to obtain the disclosure or discovery without court action (ii) Defendant s

nondisclosure response or objection was not substantially justified and (iii) no other

circumstances make an award of expenses unjust See V I R CIV P 37(a)(5)(A)

‘11 I7 Defendant is reminded to comply with the Scheduling Order going forward and failu1e to

comply may result in further sanctions V I R CIV P 37(b)(2)(A)(vii) ( treating as contempt of

court the failure to obey any order except an order to submit to a physical or mental examination )

see also Title 14 V I C § 581 ( Every court of the Virgin Islands shall have the power to punish

by fine or imprisonment at its disenetion such contempt of its authority and none other as

(3) disobedience or resistance to its lawful writ process order rule decree or command )

CONCLUSION

(11 18 Based on the foregoing the Court will (i) grant Plaintiff’s motion in its entirety as to

Defendant 5 failure to disclose Defendant 5 failure to respond to interrogatories Defendant 5

failure to respond to requests for production Defendant 5 failure to respond to requests for

admissions and Defendant 5 failure to comply with the Scheduling Order (ii) order Defendant to

serve Plaintiff with a copy of her initial disclosures (iii) order Defendant to serve Plaintiff with a

copy of her responses to Plaintiff‘s first set of interrogatories and Plaintiff s first request for

production of documents (iv) order that Defendant is prohibited unless Defendant obtains leave

from the Court from propounding written interrogatories requests for production of documents

and requests for admissions in this matter (v) order a hearing scheduled to give Defendant and

Defendant s counsel the opportunity to be heard with regard to the Court 5 sanctions to wit the

payment of reasonable expenses including attorney 5 fees (vi) order Plaintiff to file a notice Beikelen Betkelm 9X 2020 CV 12] Memorandum Opinion 2021 VI SUPER '22P Page 16 of i6

advising the Couxt 0f the reasonable expenses Plaintiff incurred as the result of Defendant 5 failure

to disclose Defendant s failure to respond to interrogatories Defendant 9 failure to respond to

requests for production Defendant % failure to respond to requests for admissions and Defendant 8

failure to comply with the Scheduling Order with supporting documentk; if any and (vii) order

Plaintiff to file a copy of Plaintiff s first requests for admissions and ieserve ruling on which

requests fall within the scope of Rule 36(a)(1) An order consistent with this Memorandum

Opinion will be entered contemporaneously helewith

DONE this 9‘1 day of February 2021

fifizfi/ZZ 1 ZM HAROLD W L WILLOCKS Presiding Judge of the Superior Court SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX RAYMOND BERKELEY PLAINTIFF, Civil No SX 2020 CV 121

V ACTION FOR ACCOUNTING SPECIFIC PERFORMANCE MICHELE BERKELEY INDIVIDUALLY AM) BREACH OF FIDUCIARY DUTY AS TRLSTEE OF THE TRUST AGREEMENT CONVERSION BAD FAITH and 0F BARBARA T BERKELEY DECLARATION JUDGMENT DEFFNDAVT CITE AS 2021VISUPER ‘22P Appearances Andrew L Capdeville, Esq Law Offices of Andrew L Capdeville P C St Thomas U S Virgin Islands Fm Plamttfis

Yohana M Manning, Esq McChain Hamm & St Jean LLP St Croix US Virgin Islands For Defendant

ORDER

In accordance with the Memorandum Opinion entered contemporaneously herewith it is

hereby

ORDERED ADJUDGED AND DECREED that Plaintiff Raymond Berkeley 9

(hereinafter Plaintiff ) motion to compel Defendant Michele Berkeley individually and as

Trustee of The Trust Agreement of Barbara T Berkeley (hereinafter Defendant ) to respond to

Plaintiff s discovery requests and abide by the scheduling order filed on January 5 2021 is

GRANTFD in its entirety as to Defendant 5 failure to disclose Defendant 5 failure to respond to

interrogatories Defendant 5 failure to respond to requests for production Defendant 3 failure to Berkeley v Berkeley 8X 2020 CV 121 Order 2021 v1 SUPER 2}? Page 2 of 3

respond to requests for admissions, and Defendant’s fallure to comply with the Scheduling Order

It is further

ORDERED that, within seven (7) days from the date of entry of this Order, Defendant

shall serve Plaintiff with a copy of her initial disclosures It is further

ORDERED that, within seven (7) days from the date of entry of this Order, Defendant

shall serve Plaintiff w1th a copy of her responses to Plaintiff’s first set of interrogatories and

Plaintiff‘s first request for production of documents It is further

ORDERED that Defendant is prohibited unless Defendant obtains 1eave from the Court,

from propounding written interrogatories, requests for production of documents, and requests for

admissions in this matter It is further

ORDERED that Defendant and Defendant’s counsel appear a hearing via Zoom on

EQ‘t\\ Egg» , 2021 at (23d? m/pm to be

heard with regard to the Court’s sanctions to wit, the payment of reasonable expenses, including

attomey’s fees It is further

ORDERED that within fifteen (15) days from the date of entry of this Order, Plaintiff

shall file a notice advising the Court of the reasonable expenses Plaintiff incurred as the result of

Defendant’s failure to disclose, Defendant 3 failure to respond to interrogatories, Defendant’s

failure to respond to requests for production, Defendant’s failure to respond to requests for

admissions, and Defendant’s failure to comply with the Scheduling Order, with supporting

documents, if any And it is further

ORDERED that within fifteen (15) days from the date of entry of this Order, Plaintiff

shall file a copy of Plaintiff’s first requests for admissions The Court will reserve ruling on which

requests fall within the scope of Rule 36(a)(l) pending receipt of Plaintiff’s submission Belkelex 1 Berkelex 9X 2020 CV 12! Order 2021 VI SUPER 2;}? Page 1 of 3 M

DONE and so ORDERED this 911 day of February 2021

HAROLD W L WILLOCKS Presiding Judge of the Superior Court