*1 Pending before the Court is Plaintiffs August 5, 2013, Motion[1] for Reconsideration of the Court's July 24, 2013, Order.[2] For the following reasons, Plaintiff's Motion will be denied.

PROCEDURAL & FACTUAL HISTORY

On April 7, 2011, Plaintiff Hilston Peters filed a Complaint alleging that on January 6, 2011, Plaintiff was severely burned by “fly ash” when working on Defendant Virgin Islands Water and Power Authority's (“WAPA”) Boiler No. 13's hopper. Plaintiff alleges Defendant WAPA was negligent because Defendant failed to allow the hopper to properly cool before Plaintiff was instructed to perform maintenance work on it, Defendant improperly maintained the hopper, and Defendant also failed to warn Plaintiff of the unsafe condition. On July 16, 2012, Plaintiff sought leave to amend the Complaint, granted by the Court on July 17, 2012, to add Defendants Combustion Engineering, Inc. and GE International, Corp. Through another Motion for Leave to Amend the Complaint,[3] granted in part on January 8, 2013, GE International, Corp. was substituted for General Electric Company.[4] The Second Amended Complaint alleges that Defendant Combustion Engineering negligently designed, engineered, developed, constructed, and manufactured Boiler 13 and further failed to provide warnings and maintenance instructions for Boiler 13. Further, Plaintiff also seeks to recover on a strict liability theory against Defendants Combustion Engineering, Inc. and General Electric Company, who allegedly were responsible for designing, engineering, developing, constructing, and manufacturing, installing, and selling Boiler 13 to Defendant WAPA.

On July 8, 2013, Plaintiff sought to compel Defendant General Electric Company to Respond to Written Discovery.[5] Plaintiff's Motion was denied in a July 24, 2013, Memorandum Opinion and Order, that Plaintiff now requests the Court to reconsider.

STANDARDS

A motion for reconsideration, pursuant to the Local Rules of Civil Procedure of the District Court of the Virgin Islands 7.3, made applicable to the Superior Court of the Virgin Islands under Super. Ct. R. 7,[6] may only be based on “(1) intervening change in controlling law; (2) availability of new evidence, or; (3) the need to correct clear error or prevent manifest injustice.”[7] A motion for reconsideration “is 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.”[8]

ANALYSIS

Plaintiff's July 8, 2013, Motion to Compel production of documents and answers to Plaintiffs first set of written interrogatories was denied in an July 24, 2013, Order because Plaintiff failed comply with Loc. R. Civ. P. 37.1 and 37.2 in good faith. Plaintiff seeks reconsideration of the July 24, 2013, Order arguing that Loc. R. Civ. P. 37.1 is inconsistent with the discovery provisions of Fed. R. Civ. P 26-37, and it thereby violates Fed. R. Civ. P. 83.

In addition to denying Plaintiffs July 8, 2013, Motion to Compel, the accompanying Memorandum Opinion to the July 24, 2013, Order warned the law office of Plaintiff's counsel, Lee J. Rohn & Associates, LLC, that any “future failure to abide by Loc. R. Civ. P. 37.1 and 37.2 may result in the imposition of sanctions,” noting Lee J. Rohn & Associates, LLC, repeated failure to abide by the good faith procedural requirements of Loc. R. Civ. P. 37.1 and 37.2. Specifically, the Court cited to two recent unrelated decisions, Penn v. Whitecap Investment Corp.[9] and Demming v. Virgin Islands Water and Power Authority,[10] in which the Court also found that Lee J. Rohn & Associates, LLC, failed to abide by Loc. R. Civ. P. 37.1 and 37.2 prior to resorting to court action. In Plaintiff's Motion for Reconsideration, Plaintiff attempts to reargue the factual and legal determinations of those decisions, which are not at issue here. As such, the Court will not discuss those cases in this Memorandum Opinion.

I. Fed. R. Civ. P. 83 does not apply to the Superior Court of the Virgin Islands.

Plaintiff argument is largely predicated on the contention that Fed. R. Civ. P. 83 applies in this case. The Court disagrees. The Superior Court of the Virgin Islands has the power to promulgate local rules pursuant to the Revised Organic Act of 1954, 48 U.S.C. § 1611, which establishes the District Court of the Virgin Islands and “local courts of the Virgin Islands. Specifically, 48 U.S.C. § 1611(c) provides that “[t]he rules governing the practice and procedure of the courts established by local law ... shall be governed by the local law or the rules promulgated by those courts.” Pursuant to this authority granted by 48 U.S.C. § 1611(c), the Superior Court has explicitly adopted Federal Rules of Civil Procedure 26-37 to apply to all deposition and discovery matters pursuant to Super. Ct. R. 39. However, the Superior Court of the Virgin Islands has also promulgated Super. Ct. R. 7 that provides “[t]he practice and procedure in the Superior Court shall be governed by the Rules of the Superior Court and, to the extent not inconsistent therewith, by the Rules of the District Court, [and] the Federal Rules of Civil Procedure ....”[11] In other words, the Court has adopted the practice and procedural aspects of the Federal Rules of Civil Procedure and Rules of the District Court, but only where their application would be consistent with the rules governing the Superior Court.

Fed. R. Civ. P. 83 is inconsistent with Super. Ct. R. 7, and therefore does not apply to the Superior Court of the Virgin Islands. Fed. R. Civ. P. 83 provides that a Federal District Court “may adopt and amend rules governing its practice ... [but] [a] local rule must be consistent with - but not duplicate—federal statutes and rules adopted under 28 U.S.C. §§ 2072[12] and 2075[13] ... ”[14] First, Fed. R. Civ. P. 83 is clearly intended to only apply to the Federal District Courts, and through the Revised Organic Act of 1954, the District Court of the Virgin Islands.[15] Second, applying the language of Fed. R. Civ. P. 83 as Plaintiff suggests would imply that all locally promulgated rules would have to be consistent with the Federal Rules of Civil Procedure, which flies in the face of a rational application of Super. Ct. R. 7 on its face. Finally, such an illogical reading would also abrogate the power of the Superior Court to promulgate local rules of practice and procedure pursuant to 48 U.S.C. § 1611(c).[16] However, in the instant case, the Court recognizes that because Loc. R. Civ. P. 37.1 and 37.2 are procedural rules adopted pursuant to Super. Ct. R. 7 from the District Court, which - unlike the Superior Court - is bound by Fed. R. Civ. P. 83, the District Court's interpretation Loc. R. Civ. P. 37.1 and 37.2 may be persuasive, but not binding, authority for the Superior Court.

II. Loc. R. Civ. P. 37.1 and 37.2 are procedural rather than substantive in nature.

Plaintiff also appears to argue that the “good faith” requirement of Loc. R. Civ. P. 37.1 is substantive rather than procedural in nature. Generally, Plaintiff appears to make this argument in support of Plaintiff's contention that the Court's adoption of Loc. R. Civ. P. 37.1 violates Fed. R. Civ. P. 83.[17] While the Court has determined that Plaintiff's argument pursuant to Fed. R. Civ. P. 83 lacks merit, the Court finds a brief discussion of the substantive versus procedural nature of Loc. R. Civ. P. 37.1 is relevant because the Superior Court may not use its rule-making authority to enact substantive law.[18] As such, the Court must determine whether Loc. R. Civ. P. 37.1 is procedural or substantive in nature:

Loc. R. Civ. P. 37.1 provides that

Additionally, Loc. R. Civ. P. 37.2[20] specifically enumerates the steps a moving party must take before a Court will consider a discovery motion. Thus, the Court agrees with Plaintiff that Loc. R. Civ. P. 37.1 and 37.2 place an additional procedural burden on the moving party to demonstrate to the Court that the parties have attempted to meet and confer in good faith prior to resorting to judicial action in any motion relating to a discovery dispute pursuant to the Fed. R. Civ. P. 26-37, with the exception of Fed. R. Civ. P. 30. However, these additional procedural requirements are permissible because they clearly do not create and define any new substantive rights, duties, and obligations.[21] Rather, Loc. R. Civ. P. 37.1 and 37.2 implement a set of procedures for parties to follow in order to streamline and regulate the discovery process.

III. Loc. R. Civ. P. 37.1 and 37.2 are entirely consistent with, and not duplicative of, Fed. R. Civ. P. 26-37.

Even assuming arguendo that Fed. R. Civ. P. 83 applies, Plaintiff has cited to no authority that would support the contention that Loc. R. Civ. P. 37.1 and 37.2 are impermissibly duplicative and inconsistent with Fed. R. Civ. P. 26-37. To the contrary, Loc. R. Civ. P. 37.1 and 37.2 are entirely complementary to Fed. R. Civ. P. 26-37, and in particular Fed. R. Civ. P. 26(c) and 37(a).

Specifically, Loc. R. Civ. P. 37.1 and 37.2 supplement[22] and expand the procedural requirements necessary to fulfill the good faith meet and confer certification requirements under Fed. R. Civ. P. 26-37 pursuant to the Superior Court's authority to promulgate local rules under 48 U.S.C. § 1611(c).[23] While Fed. R. Civ. P. 26(c) regarding protective orders and Fed. R. Civ. P. 37(a)[24] regarding motions to compel already require the movant to include a certification with their motion that demonstrates they in “good faith conferred or attempted to confer ... in an effort to resolve the dispute without court action,” Loc. R. Civ. P. 37.1 and 37.2 elaborate on the procedural requirements necessary to comply with them. For instance, Loc. R. Civ. P. 37.1 adds that the burden is on the “moving party to arrange for this conference,” and that “the conference shall be completed within thirty (30) calendar days after the moving party serves a letter requesting such conference”[25] Further, Loc. R. Civ. P. 37.2 explicitly outlines the stipulation and certification requirements to ensure that the parties have complied with Loc. R. Civ. P. 37.1 and the discovery motion has been narrowed to those issues only in dispute. Outside the context of Fed. R. Civ. P. 26(c) and 37(a), the language of Loc. R. Civ. P. 37.1 clearly requires the parties to follow the good faith meet and confer and certification requirements in all other instances of discovery motions practice pursuant to the remainder of Fed. R. Civ. P. 26-37, with the exception of Fed. R. Civ. P. 30.[26] In fact, as will be discussed later in this Memorandum Opinion, by adopting Loc. R. Civ. P. 37.1 and 37.2 to apply to all instances of discovery disputes other than those pursuant to Fed. R. Civ. P. 30, the Superior Court has adopted procedures consistent with the Fed. R. Civ. P. 26-37’s overall purpose of encouraging cooperation between the parties with limited and minimal court intervention.[27]

Contrary to Plaintiff's arguments, the Superior Court's adoption of Loc. R. Civ. P. 37.1 and 37.2 is entirely consistent with the practice and procedure of several other jurisdictions outside of the Virgin Islands. In fact, many jurisdictions also require that the parties meet and confer in good faith prior to resorting to motions practice, and some jurisdictions arguably hold a higher good faith “meet and confer” standard than Loc. R. Civ P. 37.1 and 37.2. For instance, the United States District Court for the Northern District of Indiana Local Rule 37-1 provides that:

The United States District Court for the Northern District of Indiana has held that, at minimum, “[a] good faith effort to resolve a discovery dispute ‘requires that counsel converse, confer, compare views, consult and deliberate.’ ”[29] The United States District Court for the District of Massachusetts Local Rule 37.1(A) provides that:

The United States District Court for the District of Massachusetts has held that a false certification that the parties met and conferred[31] as well as a nonmoving party's failure to respond to a request for conference within seven days[32] may be a sufficient basis for sanctions.[33] Thus, while the language of local rules vary across jurisdictions, the widespread use of a requirement that parties meet and confer in good faith[34] is a reflection of the complementary, rather conflicting, nature of Loc. R. Civ. P. 37.1 and 37.2 with the Fed. R. Civ. P. 26-37.

IV. “Good faith” is a longstanding accepted principle in discovery practice, and counsel's repeated failure to meet and confer in “good faith” may be a basis for sanctions.

Plaintiff further argues that Loc. R. Civ. P. 37.1's “good faith” requirement is subjective, imposing an additional unfair burden on the moving party outside of the Fed. R. Civ. P. 26-37 and is “being used to create unnecessary delay ... and unnecessarily multiply discovery.”[35] First, without a good faith requirement, Loc. R. Civ. P. 37.1 and 37.2 would run the risk of becoming a toothless and redundant set of procedures.[36] Second, while the Court agrees that whether a moving party has conferred in a good faith effort to eliminate the necessity for the motion or to eliminate as many of the disputes as possible”[37] is a fact-specific determination that is ultimately m the hands of the court, the inquiry looks at the totality of the circumstances on both parties’ reasonable efforts to resolve as many disputes as possible prior to resorting to Court action.[38] Third, Court strongly disagrees that Loc. R. Civ. P. 37.1's good faith requirement to meet and confer is the cause of unnecessary delay. To the contrary, good faith is a longstanding principle of the Federal Rules of Civil Procedure to encourage cooperation, and thereby minimal court intervention in the discovery process. Thus, for the benefit of Plaintiff's counsel, the Court is compelled to briefly discuss good faith as it is embodied in the Federal Rules of Civil Procedure and further discuss the various standards by which a party may be sanctioned for failure to abide by the good faith requirement of Loc. R. Civ. P. 37.1.

Loc. R. Civ. P. 37.1's good faith requirement to meet and confer in all discovery disputes other than those pursuant to Fed. R. Civ. P. 30 is not a new concept and is a clear extension of the Federal Rules of Civil Procedure's longstanding implicit endorsement of cooperation and communication between the parties during the fact-finding process.[39] As the Sedona Conference Points out, in accordance with Fed. R. Civ. P. l's mandate that the Federal Rules of Civil Procedure “should be construed and administered to secure the just, speedy and inexpensive determination of every action and proceeding,”[40]

The Sedona Conference also stresses that this duty to cooperate and communicate is generally assumed by the Federal Rules of Civil Procedure 26-37[42] For instance, Fed. R. Civ. P. 26(a) requires parties to make initial disclosures, Fed. R. Civ. P. 26(f) requires the parties to confer in good faith on a joint discovery plan, and Fed. R. Civ. P. 26(g) obliges a party after a reasonable inquiry to certify a discovery request.[43] Thus, Loc. R. Civ. P. 37.l's good faith requirement to meet and confer, while a fact-intensive inquiry, is not an impermissible new concept in the discovery process, and instead falls directly in line with the Fed. R. Civ. P. 26-37’s purpose of promoting cooperation and communication during discovery[44]

The Court recognizes that Fed. R. Civ. P. 26-37 provide specific provisions that dictate when particularized discovery conduct must be sanctioned or, within the discretion of the Court, may be sanctioned, and what types of sanctions may be considered by the Court. For instance, pursuant to Fed. R. Civ. P. 26(c)(3) and Fed. R. Civ. P. 37(a)(3)(5) reasonable expenses must be levied against a party that necessitated the motion unless

Pursuant to Fed. R. Civ. P. 26(g)(3), a party must be appropriately sanctioned where a they submit an improper discovery certification without substantial justification.[46] Pursuant to Fed. R. Civ. P. 37(f), the Court may impose sanctions “[i]f a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f).”[47] Finally, Fed. R. Civ. P. 37 overall provides a variety of sanctions for failure to make disclosures or cooperate in discovery such as failure to comply with a court order,[48] failure to disclose or supplement a discovery request,[49] and failure of a party to attend its own deposition.[50] However, these Fed. R. Civ. P. 26-37 provisions do not preclude the Court from imposing appropriate sanctions on counsel for a repeated failure to comply with the requirements of Loc. R. Civ. P. 37.1 and 37.2,[51] including the good faith requirement to meet and confer, because such a violation pursuant to Loc. R. Civ. P. 37.1 and 37.2 is entirely distinct from those discovery violations enumerated by Fed. R. Civ. P. 26-37.[52]

Courts may use “various types of sanctions to enforce the integrity of the discovery process,”[53] pursuant to a specific statute, local rule, or the inherent authority of the court.[54] However, “the propriety of a sanction must be reasonable in the light of the circumstances surrounding a [party's] ... violative conduct.... [and t]herefore, a sanction is reasonable only if its character and magnitude are proportionate to the severity of the violation of the underlying discovery order and the harmful consequence of that violation.”[55] Even where Plaintiff's counsel has repeatedly violated the Loc. R. Civ. P. 37.1 and 37.2 in this case as well as other cases before the court, the drastic remedy of dismissal would rarely be appropriate.[56] However, particularly considering an attorney is held to a higher standard of candor and decorum as an officer of the court,[57] a court may consider imposing appropriate monetary or non-monetary sanctions for a repeated failure to abide by Loc. R. Civ. P. 37.1 and 37.2.

Loc. R. Civ. P. 37.3 provides that “[t]he failure of any counsel to comply with or cooperate in, or the abuse by counsel of, the ... procedures [set forth in Loc. R. Civ. P. 37.1 and 37.2] may result in the imposition of sanctions.”[58] However, Loc. R. Civ. P. 37.3 does not elaborate on the standard by which counsel may be sanctioned and what particular sanctions may be appropriate. As such, the nature of the violation of Loc. R. Civ. P. 37.1 and 37.2 is instructive. For instance, the Court may, but is not limited to, review counsel's conduct pursuant to Fed. R. Civ. P. 11 or the inherent powers of the court.

A. Sanctions pursuant to Loc. R. Civ. P. 37.3 and Fed. R. Civ. P. 11.

Upon a motion or on the Court's own initiative, the Court may impose Fed. R. Civ. P. 11 sanctions.[59] Specifically, in order to comply with Loc. R. Civ. P. 37.2, the moving party must either submit a stipulation and declaration signed by both parties certifying the parties complied with Loc. R. Civ. P. 37.1, or a declaration from counsel establishing that, after a good faith attempt to meet and confer pursuant to Loc. R. Civ. P. 37.1, opposing counsel failed to confer in a timely manner or refused to sign the stipulation and certification required by Loc. R. Civ. P. 37.2(a). In both instances, the moving party must certify and attest to the efforts made in order to comply with the good faith meet and confer requirement of Loc. R. Civ. P. 37.1. Thus, for instance, if the underlying factual contentions of the certification, stipulation, or declaration do not “have evidentiary support or ... [do not] have evidentiary support after a reasonable opportunity for further investigation or discovery,”[60] counsel may be sanctioned pursuant to Fed. R. Civ. P. 11(c). Unlike sanctions imposed under the inherent authority of the court, Fed. R. Civ. P. 11 “imposes an objective standard of reasonable inquiry which does not mandate a finding of bad faith.”[61]

B. Sanctions pursuant to the inherent authority of the Court.

A court may also impose sanctions pursuant to its inherent powers.[62] However, while nothing precludes a court from imposing sanctions both pursuant to a statute or rule and through the inherent authority of the court, courts have been cautious when exercising their inherent authority when statues or rules also apply.[63] Further, prior to levying sanctions the court must give the offending party notice and an opportunity to be heard.[64] The court must also find that counsel's conduct was willful[65] or in bad faith.[66] Finally, in the most egregious of such cases the court may hold counsel in contempt of court,[67] or counsel may even be found guilty of perjury.[68]

These enumerated sanctions for a failure to abide Loc. R. Civ. P. 37.1 and 37.2 in no way temper the important role the Court plays in resolving legitimate discovery disputes. However, the Court hopes that this Memorandum Opinion in some way illuminates the important role Loc. R. Civ. P. 37.1 and 37.2 play in the discovery process by encouraging and mandating cooperation and communication. Further, the Court hopes the deterrence of sanctions, and the application of appropriate sanctions when necessary pursuant to Fed. R. Civ. P. 26-37 and Loc. R. Civ. P. 37.1-37.3, may temper the adversarial conduct which has, at times, characterized discovery in this jurisdiction.

V. Plaintiff has provided no compelling argument for the Court to reconsider its July 24, 2013, Order. Further, the Court reiterates that the July 24, 2013, Order simply warns Plaintiff to abide by the good faith meet and confer requirement of Loc. R. Civ. P 37.1 in the future.

As previously stated in the July 24, 2013, Order, the Court has found on several previous occasions that Lee J. Rohn & Associates, LLC, has failed to abide by Local R. Civ. P. 37.1 and 37.2. In the instant case, the Court found in its July 24, 2013, Order that the facts simply established that the parties had arranged for a conference call, but Plaintiff's counsel called ten (10) minutes late. By that time Defendant's counsel had begun work on another matter and was no longer available at the moment of the call. Rather than attempt to arrange for another conference with Defendant's counsel, Plaintiff's counsel immediately resorted to court action. Further, the Court found that Plaintiff's counsel's - at best - exaggerated the facts in her Loc. R. Civ. P. 37.2(c) declaration when she suggested that she had spoken with Defendant's counsel directly, when she had, in fact, only spoken to Defendant's counsel's legal assistant, Ms. Sherlyn Garcia. On those facts, the Court held that a single missed phone conference call due to the moving party calling in ten (10) minutes late is not a reasonable nor good faith attempt to meet and confer with opposing counsel pursuant to Loc. R. Civ. P. 37.1. However, despite the fact that the Court could consider issuing sanctions against Plaintiff's counsel, particularly on the basis that Plaintiff's counsel may have filed a false declaration and the appearance of a repeated pattern of failing to abide by Loc. R. Civ. P. 37.1 and 37.2 by Lee J. Rohn & Associates, LLC, the Court simply warned Plaintiff's counsel.

In Plaintiff's Motion for Reconsideration Plaintiff has not provided any compelling arguments that would cause the Court to reconsider its July 24, 2013, Order. While Plaintiff argues that Loc. R. Civ. P. 37.1 and 37.2 are causing “unnecessary delay” in the discovery process, it is the Court's view that it is largely Plaintiff's counsel's own adversarial conduct,[69] rather than cooperative conduct, that is causing unnecessary delay and wasting the valuable time and resources of this Court. Consequently, Plaintiff's August 5, 2013, Motion for Reconsideration is denied.

An Order consistent with this Opinion shall follow.

ATTEST: Venetia H. Velazquez, Esq.

Clerk of Court___/___/__

by:

Lori Boynes-Tyson

Court Clerk Supervisor 10/17/13

Plaintiff's Motion makes reference to several exhibits, but no exhibits were attached to the Motion.

The July 24 2013, Memorandum Opinion and Order was entered by the Clerk of the Court on July 29, 2013. Defendant responded to Plaintiff's August 5, 2013, Motion on August 19, 2013, to which Plaintiff replied on August 26, 2013.

Plaintiff's Motion to Amend the First Amended Complaint was filed on October 26, 2012.

Through the July 16, 2012, Motion, granted by the Court on July 17, 2012, Plaintiff also added Defendant Alstom, Inc. However, the Court dismissed Alstom, Inc., as a Defendant in a January 8, 2013, Order.

Defendant responded to the Motion on July 9, 2013.

The Rules of the District Court and Federal Rules of Civil Procedure apply to matters before this Court whenever they are not inconsistent with the Superior Court Rules. Super. Ct. R. 7.

LRCi 7.3.

Bostic v. AT&T of the Virgin Islands, 312 F. Supp. 2d 731, 733-34 (D.V.I. 2004).

2012 WL 6596123 (V.I. Super. Ct. Dec. 12, 2012).

2013 WL 436578 (V.I. Super. Ct. Jan. 20, 2013).

Super. Ct. R. 7; see Preface to the First General Amendments to the Rules of the Superior Court of the U.S. Virgin Islands (2012).

28 U.S.C S 2072 (“(a) The Supreme Court [of the United States] shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in to United States district courts (including proceedings before magistrate judges thereof) and courts of appeals. (b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect....”).

28 U.S.C. § 2075 (“The Supreme Court [of the United States] shall have the power to prescribe by general rules, the forms of process, writs, pleadings, and motions, and the practice and procedure in cases under title 11.”).

Fed R Civ P. 83 (emphasis added).

See United States v. McIntosh, 229 F. Supp. 2d 431, 434 (D.V.I. 2002)(“[T]he Revised Organic Act and its jurisprudence makes clear, [the District Court of the Virgin Islands] is not a federal court. It is a territorial court which has been anointed by Congress with the jurisdiction of a United States district court”). The Court recognizes that Super. Ct. R. 39 states “[a]ll references in ... [Rule 26 to 37 of the Federal Rules of Civil Procedure], inclusive to ‘Court’, ‘District Court’, or ‘U.S. District Court shall be deemed a reference under this rule to the Superior Court of the Virgin Islands. However, it is the Court's view that this “substitution” of language under Super. Ct. R. 39 only applies to Fed. R. Civ. P. 26-37, not Fed. R. Civ. P. 83.

See generally 32B Am. Jur. 2d Federal Courts § 2242.

Plaintiff appears to conflate Fed. R. Civ. P. 26 and 37’s “good faith” requirement, with the “substantial justification” requirement when making a determination whether the noncomphance party should be sanctioned under Fed. R. Civ. 37. See Plaintiff Hilston Peters’ Motion for Reconsideration, Aug. 5, 2013, at 5.

See Gov't of the VI. v. Durant, 49 V.I. 366, 370 (V.I. 2008).

Id. a 373 (internal citations omitted).

Loc. R. Civ. P. 37.2 provides:

See In Re: Petition of Expungement of Criminal Record concerning Mejia, 58 V.I. 139, 142-143 (V.I. Super. Ct. 2013).

See Bertrand v. Cordiner Enterprises, Inc., 55 V.I. 247, 254 (V.I. Super. Ct. 2011)(noting that two statutes are capable of coexistence where one statute supplements the other).

See, e.g., id at 260; Carty v. Mason, 2010 WL 7371472, at *3 (V.I. Super. Ct. Dec. 7, 2010); Bryan v. U.S., 2012 WL 5258965, at FN 11 (D.V.I. Oct. 24, 2012)(finding that where plaintiff only sent a letter to which defendant's replied via another letter was insufficient to establish that the parties met and conferred in good faith pursuant to Loc. R. Civ. P. 37.1 and 37.2); De La Cruz v. V.I. Water & Power Auth., 2009 WL 416484 (D.V.I. Feb. 18,2009).

The Court may be required to award expenses pursuant to Fed. R. Civ. P. 37(a)(5) under both Fed. R. Civ. P. 26(c) and Fed. R. Civ. P. 37(a)(1). See Fed. R. Civ. P. 37(a)(5) (“(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). 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 reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:

LRCi 37.1. See, e.g., Ference v. Unisen, Inc., 2004 WL 2280361, at *1 (D.V.I. Oct. 8, 2004)(finding that a single email to opposing counsel requesting a reply within ten (10) days was “inadequate to demonstrate compliance” with Loc. R. Civ. P. 37.1 and 37.2, but warning that “[a]ny failure or refusal by opposing counsel to so meet and confer will result in appropriate sanctions”); Joseph v. Cigna Ins. Co., 2004 WL 2280360, at *1 (D.V.I. Oct. 6, 2004)(holding that “[c]orrespondence requesting a ‘meet and confer’ on a specific date four (4) days from the date of the correspondence does not coincide with any concept of ‘reasonable notice,’ ” and thereby, absent further action, the moving party did not abide by Loc. R. Civ. P. 37.1).

See, e.g., Naviant Mktg Solutions, Inc. v. Larry Tucker, Inc., 339 F.3d 180, 187 (3d Cir. 2003)(finding that because the language of a local discovery rule requiring a certification “applies generally to discovery motions and applications” the moving party is required to comply fully with the local rule even where the applicable Federal Rule does not provide for similar procedural requirements); Fastener Corp. v. Spotnails, Inc. 43 F.R.D. 204, 207 (N.D. Ill. 1967)(holding, pursuant to United States District Court for the Northern District of Illinois Local Rule that provides, in part, that “this court shall hereinafter refuse to hear any and all motions for discovery and production of documents under Rules 27 through 37 of the Federal Rules of Civil Procedure, unless moving counsel shall first advise the Court in writing that after personal consultation and sincere attempts to resolve differences they are unable to reach an accord,’ that the Local Rule is also applicable to motions pursuant to Fed. R. Civ. P. 45).

See generally The Case for Cooperation, 10 Sedona Conf. J. 339, 340 (2009); Fed.R.Civ.P. 26 advisory committee notes (1970).

N.D. Ind.R. 37-1 (2012).

Imbody v C&R Plating Carp., 2010 WL 3184392, at *1 (N.D. Ind. Aug. 10, 2010 )(citing Williams v. Bd. of County Comm'rs of Unified Gov't of Wyandotte County & Kansas City, Kan., 192 F.R.D. 698, 699-700 (D.Kan.2000)).

D. Mass. R. 37.1(A) (1992).

Syrjala v. Total Healthcare Solutions, Inc., 186 F.R.D. 251 (D. Mass. 1999)(sanctioning counsel for filing a false certification because counsel had certified that the parties had met, conferred, and were unable to reach agreement, when the facts simply established that counsel had, at most, attempted to confer by sending a letter and fax).

D Mass. R. 37.1(A) (1992) (“ ... Failure of opposing counsel to respond to a request tor a discovery conference within seven (7) days of the request shall be grounds for sanctions, which may include automatic allowance of the motion.”).

Cohen v. City of Newton, 248 F.R.D. 92 (D. Mass. 2008) (stating that where the nonmoving party failed to respond to two requests for a conference, the nonmoving party's conduct directly violated the local rules and was subject to sanctions).

See also, e.g., E.D. Pa. R. 26.1(f)(1995)(“No motion or other application pursuant to the Federal Rules of Civil Procedure governing discovery or pursuant to this rule shall be made unless it contains a certification of counsel that the parties, after reasonable effort, are unable to resolve the dispute.’); E.D.N.Y. R. 37.3 (“Prior to seeking judicial resolution of a discovery or non-dispositive pretrial dispute, the attorneys for the affected parties or non-party witness shall attempt to confer in good faith in person or by telephone in an effort to resolve the dispute, in conformity with Fed. R. Civ. P. 37(a)(1)....”); Am. Fed'n of State Cnty. & Mun Employees, Dist. Council 47 Health & Welfare Fund v. Ortho-McNeil-Janssen Pharm., Inc., 2010 WL 5186088, at *5 (E.D. Pa. Dec. 21, 2010)(finding that a brief “volley” of letters was insufficient to amount to a “reasonable effort” to resolve the discovery issues); M.D. Fla. R. 3.01(g) (“Before filing any motion in a civil case, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, or to involuntarily dismiss an action, the moving party shall confer with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion, and shall file with the motion a statement (1) certifying that the moving counsel has conferred with opposing counsel and (2) stating whether counsel agree on the resolution of the motion. A certification to the effect that opposing counsel was unavailable for a conference before filing a motion is insufficient to satisfy the parties' obligation to confer. The moving party retains the duty to contact opposing counsel expeditiously after filing and to supplement the motion promptly with a statement certifying whether or to what extent the parties have resolved the issue(s) presented in the motion. If the interested parties agree to all or part of the relief sought in any motion, the caption of the motion shall include the word unopposed, agreed, or “stipulated” or otherwise succinctly inform the reader that, as to all or part of the requested relief, no opposition exists.”); N.D. Ill. R. 37.2 (“To curtail undue delay and expense in the administration of justice, this court shall hereafter refuse to hear any and all motions for discovery and production of documents under Rules 26 through 37 of the Federal Rules of Civil Procedure, unless the motion includes a statement (1) that after consultation in person or by telephone and good faith attempts to resolve differences they are unable to reach an accord, or (2) counsel's attempts to engage in such consultation were unsuccessful due to no fault of counsel's. Where the consultation occurred, this statement shall recite, in addition, the date, time and place of such conference, and the names of all parties participating therein Where counsel was unsuccessful in engaging in such consultation, the statement shall recite the efforts made by counsel to engage in consultation.”).

Plaintiff Hilston Peters’ Reply to General Electric's Opposition to the Plaintiff's Motion for Reconsideration, Aug. 16, 2013.

See Fed. R. Civ. P. 26 advisory committee notes (1983)(“The signing requirement [of Fed. R. Civ. P. 26(g)] means that every discovery request, response, or objection should be grounded on a theory that is reasonable under the precedents or a good faith belief as to what should be the law. This standard is heavily dependent on the circumstances of each case. The certification speaks as of the time it is made.”), The Case for Cooperation, supra note 27, at 340 (“There is no precise definition of ‘cooperation, as there are no precise definitions of good faith or reasonableness. However, absent a more cooperative posture in the discovery process, the cost of litigation and the burden imposed as courts are forced to attempt to resolve more and more discovery disputes, will ultimately bring the system to a halt.”).

LRCi 37.1.

See, e.g., In re Moll Grp., 2005 WL 6506459 (Bankr. E.D. Pa. June 15, 2005)(explaining that even in bankruptcy matters, ‘good faith’ does not have a precise definition and thereby is evaluated on a case-by-case basis); Imbody, 2010 WL 3184392, at *1.

The Case for Cooperation, supra note 27, at 345 (“The Federal Rules of Civil Procedure do not explicitly require counsel to cooperate in discovery, but the duty is implicit in the structure and spirit of the Rules.”).

Fed. R. Civ. P. 1.

The Case for Cooperation, supra note 27, at 349 (citing Fed. R. Civ. P. 1 advisory committee notes (1993)).

See The Case for Cooperation, supra note 27, at 349.

See Fed. R. Civ. P. 26(f) advisory committee notes (1993)(“The litigants are expected to attempt in good faith to agree on the contents of the proposed discovery plan. If they cannot agree on all aspects of the plan, their report to the court should indicate the competing proposals of the parties on those items, as well as the matters on which they agree. Unfortunately, there may be cases in which, because of disagreements about time or place or for other reasons, the meeting is not attended by all parties or, indeed, no meeting takes place. In such situations, the report-or reports-should describe the circumstances and the court may need to consider sanctions under Rule 37(g).”); The Case for Cooperation, supra note 27, at 349 (“Rule 26's command that counsel engage in ‘good faith’ efforts to develop a joint discovery plan suggests that counsel must do more than meet to announce their absolute positions on contested discovery issues, without any attempt to resolve those disputes based on the legitimate needs of the parties. The requirement to confer mandates, at a minimum, a good faith basis for disagreements. If cooperation were not an element of the required conference, the requirement that parties ‘confer’ would be surplusage.”).

See, c.f., In Re: Tutu Wells Contamination Litig, 31 V.I. 250, 262 (D.V.I. 1995)(finding that “zealous advocacy” on behalf of a client may not be an excuse for attorney conduct that is willful and in bad faith.)

Fed. R. Civ. P. 37(a)(3)(5).

Fed. R. Civ. P. 26(g)(3).

Fed. R. Civ. P. 37(f).

Fed. R. Civ. P. 37(b).

Fed. R. Civ. P. 37(c)(1)(“If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use the information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified....”)

Fed. R. Civ. P. 37(d).

See Tweed v. Metro Motors S.C., Inc., 2007 WL 4969427 (D.V.I. July 17, 2007).

While Loc. R. Civ. P. 37.1 applies to all motions related to discovery other than Fed. R. Civ. P. 30 motions Loc. R. Civ. P. 37.1 simply requires a party to make a sincere good faith effort to meet and con er with opposing counsel in order to resolve as many disputes as possible. Thus, a violation of Loc. R. Civ. P. 37.1 is an entirely distinct and, for instance, does not infringe on the “good faith” requirement to engage in a Fed. R. Civ. P. 26(f) discovery conference, which is specifically sanctionable pursuant to Fed. R. Civ. P. 37(g).

In Re Hendricks, 38 V.I. 127, 131 (Terr. Ct. 1998)(internal citations omitted).

4 V.I.C. § 243 (“Every court shall have power ... [t]o compel obedience to its judgments, orders an process', and to the orders of a judge out of court, in all actions or proceedings pending therein. . . ); see People v. Laurencin, 2007 WL 2903497 at *1 (V.I. Super. Ct. 2007).

In Re Hendricks, 38 V.I. at 132 (internal citations omitted).

When considering the most extreme sanction, such as default or dismissal, the Court must first provide the offending party with notice and a reasonable opportunity to be heard. In Re: Tutu Wells Contamination Litig 31 V.I. at 299-300 (“This is to ensure that the client is given the opportunity to defend against the consequences of the attorney's misconduct, since a litigant chooses counsel at his peril, and the misconduct of counsel may lead to the dismissal of the litigant's claim. However, because of the possibility of a client's unawareness of its counsel misconduct, courts, generally, are reluctant to visit the sins of the attorneys upon the heads of their clients by dismissing valid and meritorious claims. But where ... the client's complicity in the ‘acts and omissions’ of its chosen counsel has been established clearly, sanctions for the discovery abuses may be assessed against the client, independently, and not merely through attribution of counsel's misconduct.”)(internal citations omitted). Second, the Court must make a “sufficient inquiry into “the severity of the offending party's conduct,” In Re Hendricks, 38 V.I. at 132, by engaging in a Poulis factor balancing test. See Poulis v. State Farm Fire and Case. Co, 747 F.2d 863, 868 (3d Cir. 1984). The Poulis factors include:

See, e.g., MODEL RULES OF PROF'L CONDUCT R. 3.3 (“A lawyer shall not knowingly... make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer ...”)

Loc. R. Civ. P. 37.3. See Carty v. Mason, 2012 WL 1499244 (V.I.Super. Ct. 2012).

The Court recognizes that Fed. R. Civ. P. 11(d) provides that Fed. R. Civ. P. 11 “does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26-37.” Fed. R. Civ. P. 11(d). However, as the Court has previously discussed, the Loc. R. Civ. P. 37.2 stipulation, certification, and declaration requirements are entirely separate from Fed. R. Civ. P. 26-37 obligations. Further, Fed. R. Civ. P. 11(d) exempts motions pursuant to Rule 26-37 because Fed. R. Civ. P. 26(g) imposes a similar certification requirement specific to discovery requests. See Fed. R. Civ. P. 11 advisory committee notes (1993)(“Rules 26(g) and 37 establish certification standards and sanctions that apply to discovery disclosures, objections, and motions. It is appropriate that Rules 26 through 37 which are specially designed for the discovery process, govern such documents and conduct rather than the more general provisions of Rule 11”). The Court does not consider a certification stipulation or declaration written pursuant to Loc. R. Civ. P. 37.1 and 37.2 as a motion pursuant to Fed. R. Civ. P. 26-37, but rather a party's representation before the court pursuant to fed R. Civ.P.11

Fed. R. Civ. P. 11(b)(2). Counsel's certification, stipulation, or declaration must be based on “the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances.” Fed. R. Civ. P. 11(b).

See Chambers v. NASCO, Inc., 501 U.S. 32, 47 (1991).

Id., 501 U.S. at 50.

See id. (noting that nothing precludes a court from sanctioning bad-faith conduct pursuant to its inherent powers when it may also be sanctioned under a statute or the Federal Rules of Civil Procedure); Fed. R. Civ. P 11 advisory committee notes (1993)(discussing Chambers and cautioning that sanctions pursuant to the Court's inherent powers should not be resorted to if sanctions may be also applied pursuant to Fed. R. Civ. p. 11).

See Chambers, 501 U.S. at 50.

See Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124, 138 (S.D.N.Y. 2009); In Re Tutu Wells, 31 V.I. at 279.

See Illaraza v. Hovensa, L.L.C., 2012 WL 1153283 (D.V.I. Mar. 31, 2012)(noting that federal courts have invoked their inherent powers to sanction when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons).

See 4 V.I.C. § 244; In Re Tutu Wells, 31 V.I. at 279.

See 5 V.I.C. § 699; 14 V.I.C. § 1541.

See Lee v. Max Int'l, LLC, 638 F.3d 1318, 1321 (10th Cir. 2011)(“But there is such thing as discovery karma. Discovery misconduct often may be seen as tactically advantageous at first. But just as our good and bad deeds eventually tend to catch up with us, so do discovery machinations.”).