Watts v. Two Plus Two, Inc.

54 V.I. 286, 2010 WL 4962902, 2010 V.I. Supreme LEXIS 32

• Court: Supreme Court of The Virgin Islands
• Decided: August 24, 2010
• Docket: S. Ct. Civ. No. 2007-0127
• Status: Published

Opinions

OPINION OF THE COURT

(August 24, 2010)

HODGE, Chief Justice.

Appellant Novelle Watts, Jr., (hereafter “Watts”) appeals from an October 19, 2007 Superior Court Order dismissing his lawsuit against Appellees Two Plus Two, Inc. (hereafter “Two Plus Two”) and Wayne Bell (hereafter “Bell”) (collectively “Appellees”) for lack of prosecution. For the reasons that follow, we hold that the Superior Court abused its discretion and reverse its dismissal order.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 29, 2003, Watts initiated civil proceedings against Appellees in the Superior Court, seeking damages for injuries arising from a December 29, 2002 altercation between him and Bell in front of Two Plus Two’s business establishment. Two Plus Two submitted its answer on June 6, 2003, and on July 25, 2003 notified the Superior Court that it had demanded production of documents from Watts. However, Watts’s counsel did not respond to this demand.

In an October 26, 2006 Order, the Superior Court, observing that the matter had “remained dormant for over three (3) years,” ordered “that the parties take the appropriate steps to move this case forward within thirty (30) days, failing which this matter will be dismissed.” On October 31, 2006 and November 6, 2006, Watts’s counsel notified the Appellees and the Superior Court that he had scheduled Bell’s deposition. Nevertheless, when Watts’s counsel deposed Bell on November 16, 2006, counsel for Two Plus Two did not appear.

The Superior Court sua sponte entered two orders in the case on February 16, 2007. In the first order, the Superior Court referred the matter to mediation. However, the second order established various scheduling deadlines, including the mediation deadline, dates for conclusion of factual discovery, submission of expert disclosures and depositions, filing of dispositive motions, and the dates of calendar call, jury selection, and trial. In its scheduling order, the Superior Court noted “that any party’s failure to proceed as ordered will result in the Court imposing appropriate sanctions.”

On May 5, 2007, Two Plus Two — now represented by a different attorney — sent a letter to Watts’s counsel which (1) demanded that Watts’s counsel provide the initial discovery disclosures mandated by Federal Rule of Civil Procedure 26; (2) inquired as to the outstanding response to the July 25, 2003 demand for discovery; (3) requested that Watts and any of his witnesses be deposed on May 18 or May 21-25, 2007; and (4) suggested three proposed mediators. After having received no response to the May 5, 2007 letter, Two Plus Two’s counsel sent Watts’s counsel a second letter on June 13, 2007 — which contained a copy of the May 5, 2007 letter — and also faxed both letters to Watts’s counsel. However, Watts’s counsel still did not submit a response.

Two Plus Two filed a motion to dismiss Watts’s complaint on July 16, 2007, on the basis that Watts had failed to prosecute the action because the deadlines for factual discovery and Watts’s expert disclosures established in the February 16, 2007 scheduling order had lapsed without Watts taking any action to move the litigation forward. On July 23, 2007 and August 2, 2007, respectively, Watts filed his expert report and submitted his Fed. R. Civ. P. 26 initial disclosures. Watts also filed an opposition to Two Plus Two’s motion to dismiss on August 2, 2007, in which he argued that his counsel never received any correspondence from Two Plus Two, including the July 25, 2003 demand for discovery and the May 5, 2007 and June 13, 2007 letters.

The Superior Court scheduled a hearing on Two Plus Two’s motion on September 18, 2007. Shortly before the hearing, Bell filed a pro se motion to join in Two Plus Two’s motion to dismiss for failure to prosecute. At the hearing, Watts’s counsel informed the Superior Court that he had also never received either of the Superior Court’s February 16, 2007 Orders, and that it was a common practice for him not to receive Superior Court orders in other matters. Watts’s counsel also argued that dismissal for failure to prosecute was not appropriate because he had furthered the case by deposing Bell on November 16, 2006. However, Two Plus Two’s counsel claimed that Two Plus Two had never received notice of this deposition. In an October 19, 2007 Order, the Superior Court granted the Appellees’ motion and dismissed Watts’s action for failure to prosecute. Watts filed his notice of appeal on November 14, 2007.

II. DISCUSSION

A. Jurisdiction and Standard of Review

“The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final decrees [and] final orders of the Superior Court . . . .” V.I. Code. Ann. tit. 4, § 32(a). Since the Superior Court entered its order granting Two Plus Two’s motion for failure to prosecute and dismissing Watts’s action on October 19, 2007, and Watts’s notice of appeal was filed on November 14, 2007, the Notice of Appeal was timely filed. See V.I.S.CT.R. 5(a)(1) (“the notice of appeal required by Rule 4 shall be filed with the Clerk of the Superior Court within thirty days after the date of entry of the judgment or order appealed from . . . .”).

The standard of review for this Court’s examination of the Superior Court’s application of law is plenary, while the trial Superior Court’s findings of fact are reviewed for clear error. St. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322, 329 (V.I. 2007). However, “[t]he standard of review for this Court’s examination of a Superior Court order dismissing a matter for failure to prosecute is abuse of discretion.” Halliday v. Footlocker Specialty, Inc., 53 V.I. 505, 510 (VI. 2010) (citing Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984)).¹

B. The Superior Court Abused its Discretion When it Dismissed Watts’s Action

When reviewing an order dismissing a case for failure to prosecute, this Court “possesses an obligation to assure that the extreme sanction of dismissal ... is reserved for the instances in which it is justly merited.” Id. at 511 (internal quotation marks omitted). “Because dismissal for failure to prosecute constitutes an extreme sanction, the Superior Court may not order it unless it has expressly considered and weighed” the six factors this Court set forth in Halliday, which include “the extent of the plaintiff’s personal responsibility, the prejudice — if any — to the other parties in the litigation, whether the plaintiff has demonstrated a history of dilatoriness, whether the plaintiff or attorney’s conduct was willful or in bad faith, the effectiveness of sanctions other than dismissal, and the meritoriousness of the plaintiff’s claim.” Id. at 513. Moreover, “the Superior Court may not dismiss an action for failure to prosecute unless these six factors strongly weigh in favor of dismissal as a sanction.” Id. at 511 (emphasis added.)

As a threshold matter, this Court notes that, although the Superior Court’s October 19, 2007 Order acknowledges that Bell joined in Two Plus Two’s motion to dismiss on September 18, 2007 and grants “Defendants’ Motion to Dismiss for Failure to Prosecute,” (J.A. at 4,10), the Superior Court only analyzed the six Halliday factors in the context of Two Plus Two, and failed to perform any analysis with respect to whether those factors warranted dismissal of Watts’s action against Bell. Notably, the procedural history surrounding each of the Appellees in this litigation was different. For instance, unlike Two Plus Two, the record contains no indication that Bell ever filed a demand for documents, requested Watts’s initial disclosures, or otherwise attempted to communicate with Watts’s counsel and failed to receive a response. Accordingly, since the record contains no evidence indicating that the Superior Court even considered any of these six factors — let alone weighed them — with respect to Bell, this Court reverses the October 19, 2007 Order as it pertains to dismissal of Watts’s action against Bell. See id (explaining that failure to consider and weigh all six factors requires reversal) (citing Livera v. First Nat’l State Bank, 879 F.2d 1186, 1194 (3d Cir. 1989)).

The Superior Court did, however, consider and weigh the Halliday factors with respect to Two Plus Two. Nevertheless, this Court cannot conclude that the Halliday factors, when properly balanced, strongly weigh in favor of dismissing Watts’s action for failure to prosecute with respect to Two Plus Two. In its October 19, 2007 Order, the Superior Court expressly held — and the parties do not dispute on appeal — that there is “little direct evidence” that Watts, as opposed to his counsel, is “personally responsible for failing to prosecute this matter,” (J.A. at 5), and that the allegations in Watt’s pleadings, “if established at trial, would support recovery by [Watts].” (J.A. at 9.) Given that these two factors do not favor dismissal at all, the remaining four Halliday factors would have to very heavily favor dismissal for the Superior Court to properly exercise its discretion to dismiss Watt’s action. We hold that, although two of the Halliday factors support dismissal, they do not favor dismissal to such an extent that the Superior Court, when balancing all six factors, could have permissibly imposed that sanction in lieu of a lesser sanction.

With respect to the second factor — prejudice to Two Plus Two — the Superior Court correctly recognized that prejudice “does not mean ‘irremediable harm,’ but the ‘burden imposed by impeding a party’s ability to prepare effectively a full and complete trial strategy is sufficiently prejudicial.’ ” (J.A. at 5 (quoting Majestic Const., Inc. v. JCB Inl'l, Inc., 48 V.I. 437, 443 (D.V.I. App. Div. 2006).)) Although Watts contends on appeal that his inaction should be excused because Two Plus Two also did not file its FED. R. Civ. P. 26 initial disclosures, a plaintiff’s failure to file Rule 26 disclosures inherently impedes a defendant’s ability “to prepare effectively a full and complete trial strategy.” Carter v. Ryobi Techtronics, 250 F.R.D. 223, 229 (E.D. Pa. 2008) (quoting Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)). Moreover, unlike a plaintiff, a defendant possesses no affirmative duty to take any steps to bring a case to trial prior to filing a motion to dismiss for failure to prosecute. See Ely Valley Mines, Inc. v. Hartford Acc. and Indem. Co., 644 F.2d 1310, 1317 (9th Cir. 1981) (“Although delay caused by a defendant may be considered by the court, the primary responsibility for furthering a case is upon the plaintiff and his attorney.”) (citing Bendix Aviation Corp. v. Glass, 32 F.R.D. 375, 377 (E.D. Pa. 1962), aff'd 314 F.2d 944 (3d Cir. 1963), cert. denied, 375 U.S. 817, 84 S. Ct. 51, 11 L. Ed. 2d 52 (1963)); Finley v. Parvin/Dohrmann Co., Inc., 520 F.2d 386, 392 (2d Cir. 1975) (“[T]he failure of a defendant to call the court’s attention to a plaintiff’s undue delay in bringing a case on for trial, by formal motion or otherwise, may be considered as a factor in informing the court’s discretion. Of course, such action by a defendant is not a necessary condition to subsequent dismissal.”); Ternes v. Knispel, 374 N.W.2d 879, 881 (N.D. 1985) (“Temes argues the trial court erred in dismissing his action because Knispel has not completed discovery and therefore could not object to any delay in the prosecution. However, the duty to prosecute rests with the plaintiff, not the defendant. .. . There was no reason for Knispel to incur the expense and inconvenience of conducting discovery if Temes’ inaction gave him the hope or expectation that the case would never be tried.”). Accordingly, the Superior Court did not err when it held that the lack of any meaningful discovery in the four years since the complaint had been filed prejudiced Two Plus Two.

However, while the fact that Two Plus Two was prejudiced results in the second Halliday factor favoring dismissal, the Superior Court was also required to determine the extent of that prejudice in order to determine how heavily to weigh that factor as part of its balancing test. Although the Superior Court noted that almost five years had elapsed since the December 29, 2002 altercation between Watts and Bell and that such delay could cause memories to fade and perceptions of events to be altered, (J.A. at 6), Two Plus Two never alleged in its July 16, 2007 motion or at the September 18, 2007 hearing that any witnesses had actually become unavailable or had forgotten about the incident. Moreover, notwithstanding the fact that a defendant does not possess an affirmative duty to ensure that a plaintiff prosecutes his case, the Superior Court should have considered — in the context of determining the extent of the prejudice — that Two Plus Two did not request Watts’s initial Fed. R. Civ. P. 26 disclosures until May 5, 2007, did not follow-up on its July 25, 2003 demand for documents until May 5, 2007, and did not attend Bell’s November 16, 2006 deposition even though it had received notice. Under these circumstances, as well as the absence of any evidence in the record indicating that Two Plus Two was actually prejudiced, the Superior Court lacked a factual basis to find that the prejudice to Two Plus Two had been “substantial.” Therefore, while the second Halliday factor does support dismissal because of the inherent prejudice Two Plus Two suffered as a result of the delay, it does so only slightly.

Likewise, we find that while the Superior Court correctly held that the third Halliday factor — Watt’s history of dilatoriness — favors dismissal,² it failed to properly weigh the importance of that factor in light of the facts of the case. Although the record clearly indicates that Watts’s counsel failed to respond to the July 25, 2003 demand for documents or comply with the May 7, 2007 scheduling and mediation orders, it also established that Watts immediately complied with the Superior Court’s October 26, 2006 Order by scheduling Bell’s deposition, a fact which is not referenced in the Superior Court’s October 19, 2007 Order. Thus, although Watts’s counsel “engaged in a pattern of dilatory conduct” that favors dismissal, the Superior Court placed greater weight on this factor than it should have, given Watts’s prior compliance with its orders.

Finally, we agree with Watts that the Superior Court erred when it found that Watts’s counsel’s “conduct throughout this litigation compels a finding of willful and bad faith conduct” and that “lesser sanctions would engender further delay, and would be in effect no less harsh than dismissal.” (J.A. at 8.) With respect to the bad faith factor, the October 19, 2007 Order fails to cite to any particular evidence in the record that that would support a finding that Watts’s counsel acted in bad faith. Moreover, while the Superior Court found that Watts’s counsel “in effect willfully abandoned his case by failing to pursue litigation over a period of four years,” (J.A. at 8), this finding is clearly erroneous given that the record clearly indicates that Watts’s counsel had deposed Bell on November 16, 2006. Similarly, while the Superior Court states that it “is cognizant that dismissal must be a sanction of last, not first, resort,” (J.A. at 8), the October 19, 2007 Order simply states that “imposition of lesser sanctions would be ineffective” without even identifying any lesser sanctions that were considered, let alone explaining why those lesser sanctions could not have been imposed. (J.A. at 9). Accordingly, neither of these factors weigh in favor of dismissing Watts’s action for failure to prosecute.

Here, only two of the six Halliday factors favor dismissal at all, and — given Two Plus Two’s failure to identify any prejudice other than inherent prejudice, as well as Watts’s counsel’s compliance with the October 26, 2006 Order — those factors only slightly support dismissal. Therefore, because the Superior Court could not have properly concluded that “these six factors strongly weigh in favor of dismissal as a sanction,” Halliday, 2010 V.I. Supreme LEXIS 13, at *10, we hold that the Superior Court abused its discretion when it dismissed Watts’s action against Two Plus Two for failure to prosecute.

III. CONCLUSION

As this Court previously indicated in Halliday, dismissal for failure to prosecute constitutes an extreme sanction that the Superior Court may not impose lightly. Accordingly, the Superior Court erred when it dismissed Watts’s action against Bell for failure to prosecute without separately considering and balancing any of the Halliday factors as they pertained to Bell. Moreover, since the Superior Court, based on the record before it, improperly weighed the Halliday factors in this case, it abused its discretion when it dismissed Watts’s action for failure to prosecute against Two Plus Two. Consequently, this Court reverses the Superior Court’s October 19, 2007 Order and remands the matter to the Superior Court for further proceedings consistent with this Opinion.

1 In Halliday, this Court held that the same six factors adopted by the Third Circuit in Poulis also apply to dismissals for failure to prosecute in Virgin Islands local courts. Accordingly, although this Court decided Halliday on April 12, 2010 and the Superior Court referred to the six Poulis factors in its October 19, 2007 dismissal order, we identify these factors as the Halliday factors in this opinion.

2 Although Watts argues that the trial court erred because it “failed to acknowledge Appellant’s counsel (sic) assertion that he had never received the Court’s scheduling order; even after counsel pointed out to the Court that orders had not been received in several other pending matters, including orders from other chambers of the Court,” (Appellant’s Br. at 7-8), the record clearly indicates that the Superior Court’s orders were all sent to Watts’s counsel. (J.A. at 72; Supp. App. at 9.) Additionally, even if Watts’ s counsel had not received a copy of the scheduling order, this order is expressly referenced in Two Plus Two’s May 5, 2007 letter, which had been sent to Watts’s counsel through both mail and fax. (J.A. at 79.) Furthermore, while Watts’s counsel was aware that little or no action had taken place with respect to this matter for several years, the record does not reflect that he made any attempt to check the docket or fóllow-up with the trial court as to the case’s status. See Hobbs v. Wal-Mart Stores, Inc., No. CV-06-1031-PHX-PGR, 2007 U.S. Dist. LEXIS 95349, *9 (D. Ariz. 2007) (observing that there is “no excuse” for an attorney or his staff not to check the docket to see if a scheduling order has been issued in a pending case).