In 2009, Rian Watts and David Morrell were interested in buying a furnished home located in Estate Bonne Esperance on St. Thomas, U.S. Virgin Islands. Tanya Blake–Coleman, a licensed real estate broker in the U.S. Virgin Islands, represented the sellers of the property. Ms. Blake–Coleman was employed by My Dream Properties, Inc., d/b/a Re/Max Dream Properties (“Dream”). Dream was owned by Rosemary Sauter (“Sauter”), also a licensed real estate broker.
Mr. Morrell and Ms. Watts signed a sales contract with the sellers for $390,000, and Ms. Watts deposited $227,000 in the Dream escrow account. Mr. Morrell’s obligations under the contract were based upon his securing financing from a lender in the Territory. If no financing was secured, the escrow deposit was to be returned to Mr. Morrell. Ms. Watts and Mr. Morrell could not obtain financing to buy the house before the deadline provided in the contract. The two buyers requested that Dream return the escrow deposit. Dream refused.
In February 2010, authorities in the U.S. Virgin Islands issued arrest warrants for Sauter in the theft of approximately $2.5 million from the Dream escrow account. Ms. Watts filed a complaint in May 2011 alleging that the bank holding the escrow (FirstBank) and Blake–Coleman converted the deposit to their own use [As of the date of the complaint, Sauter was a fugitive, and Dream was in bankruptcy].
FirstBank and Ms. Blake–Coleman moved to dismiss, and at that point, only a claim for conversion survived against Ms. Blake–Coleman. Ms. Blake–Coleman filed a motion for summary judgment, as well as a motion to dismiss for failure to prosecute. Ms. Watts did not oppose either motion.
Chief Judge Curtis V. Gomez, United States District Judge for the District Court of the Virgin Islands wrote that the matter came up for trial on February 19, 2011. Despite being served, neither Ms. Watts nor any representative on her behalf appeared at trial.
Pursuant to Federal Rule of Civil Procedure 41, a court may dismiss a matter for a plaintiff’s failure to prosecute. Before a dismissal can occur, a U.S. District Court must consider six factors outlined in Poulis v. State Farm Fire and Cas. Co. (3d Cir.1984). In Poulis, the Third Circuit stated that a District Court must balance the following factors:
(1) the extent of the party’s personal responsibility;
(2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery;
(3) a history of dilatoriness;
(4) whether the conduct of the party or the attorney was willful or in bad faith;
(5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and
(6) the meritoriousness of the claim or defense.
Precedent in the District Court of the U.S. Virgin Islands stated that not all of the Poulis factors needed to be met for a court to find dismissal warranted. However, courts must consider and balance all six Poulis factors before dismissing a case with prejudice, and all doubts must be resolved in favor of an adjudication on the merits. Here Judge Gomez outlined his application of each of the Poulis factors to the facts of this case.
The first Poulis factor assesses the extent of the appellant’s personal responsibility. Ms. Watts was a pro se plaintiff, and was solely responsible for the prosecution of this case. She failed to respond to discovery requests, as well as the defendant’s motions. She failed to appear at status conferences, as well as trial. In addition, Ms. Watts failed to offer any explanation for these failures. As such, the first Poulis factor weighed in favor of dismissal.
The second Poulis factor considers prejudice to the defendant caused by the plaintiff’s failure to meet scheduling orders and respond to discovery. Chief Judge Gomez wrote that prejudice for the purpose of the Poulis factors did not mean "irremediable harm.” The burden imposed by impeding the opposing party’s ability to prepare a meaningful litigation strategy instead must be held to be sufficiently prejudicial. Ms. Watts’s failure to meet scheduling orders and respond to discovery and motions prejudiced Ms. Blake–Coleman in preparation of this case. Additionally, Ms. Watts’s failure to attend status conferences and the trial wasted the time of Ms. Blake–Coleman, the Magistrate Judge, and that of Chief Judge Gomez. As a result, the judge found that the second Poulis factor weighed in favor of dismissal.
The third Poulis factor requires the court to review the plaintiff’s history of dilatoriness, which it found to be very evident in this case. The Magistrate Judge held a hearing on a motion for withdrawal of counsel. Ms. Watts did not appear, despite being ordered to do so. The Magistrate continued the hearing until May 21, 2012, but again, Ms. Watts failed to appear. On January 2, 2013, Ms. Watts again did not respond to Ms. Blake–Coleman’s motion for summary judgment. Five days later her response to the defendant’s motion to compel was due, but she did not respond. On January 9th , the Magistrate held a status conference. Despite being ordered to appear, Ms. Watts did not appear.
Late in January, Ms. Blake–Coleman moved to dismiss for failure to prosecute. Ms. Watts again did not respond. The Magistrate held a final pretrial conference on February 13th Despite being ordered to appear, Ms. Watts did not appear. The trial started on February 19th. Once again, despite being ordered to appear and receiving notice of the trial date, Ms. Watts did not appear at trial. Chief Judge Gomez held that Ms. Watts had a sufficient history of dilatoriness in the matter that the third Poulis factor weighed in favor of dismissal.
The fourth Poulis factor requires that the Court consider whether the plaintiff’s conduct was willful or in bad faith. Ms. Watts made no effort to move the case forward, and failed to: (i) communicate with the Court and Ms. Blake–Coleman; (ii) appear at Court-ordered hearings; (iii) respond to motions; and (iv) appear at trial. The judge said that Ms. Watts "certainly demonstrated a willful disregard for the Court’s orders and for the judicial process in general." Thus, the fourth Poulis factor weighed in favor of dismissal.
The fifth Poulis factor assesses the effectiveness of sanctions other than dismissal. The court could consider the propriety of ordering Ms. Watts to pay the defendant’s attorneys’ fees that accumulated up to that point. However, Ms. Watts made it clear that she "was in no hurry to prosecute this matter." Chief Judge Gomez said that it was unlikely that financial sanctions would somehow prompt Ms. Watts to prosecute her complaint after a six-month absence. As a result, the ineffectiveness of alternative sanctions weighed in favor of dismissal.
The sixth Poulis factor considers the meritoriousness of the litigant’s claim. Chief Judge Gomez cited earlier case law that said ordinarily, a claim, or defense, would be deemed meritorious when the allegations of the motion, if established, would support recovery by a plaintiff or would constitute a complete defense. Upon reviewing the remaining claim of conversion, the judge found that it was not meritorious. As such, the final Poulis factor weighed in favor of dismissal.
All six of the Poulis factors weighed in favor of dismissal. Indeed, the factors demonstrated that dismissal of this matter was an appropriate sanction for Ms. Watts’s failure to appear at trial, or otherwise comply with the judge’s orders. For these reasons, Chief Judge Gomez granted Ms. Blake–Coleman’s motion to dismiss the case for Watt’s failure to prosecute.
Watts v. Blake–Coleman, Slip Copy, 2013 WL 3338588 (D.V.I. June 28, 2013).
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