Legal Memorandum: Dismissal for Want of Prosecution in VI

Issue: When will the courts of the Virgin Islands dismiss a case for want of prosecution?

Area of Law: Litigation & Procedure
Keywords: Dismissal of a case; Want of prosecution
Jurisdiction: Federal, Virgin Islands
Cited Cases: 29 F.3d 863; 922 F.2d 168; 686 A.2d 412; 747 F.2d 863
Cited Statutes: Fed. R. Civ. P. 41(b)
Date: 10/01/2004

Dismissal for want of prosecution is controlled by Fed. R. Civ. P. 41(b).  V.I. Water & Power Auth. v. V.I. Tel. Corp., 18 V.I. 451, 452-53 (D.V.I. 1981).  Rule 41(b) allows the defendant to “move for dismissal of an action or of any claim against the defendant” for the “failure of the plaintiff to prosecute or to comply with these rules or any order of court.”  Dismissal of the complaint with prejudice for dilatory conduct is a drastic measure, but is within the trial court’s discretion.  Adams v. Trs. of the N.J. Brewery Employees’ Pension Trust Fund, 29 F.3d 863, 870 (3d Cir. 1994); Andrews v. Gov’t of the V.I., 132 F.R.D. 405, 411 (D.V.I. 1990), aff’d, 935 F2d 1280 (3d Cir. 1991).  Doubts must be resolved in favor of allowing the case to be decided on the merits.  Adams, 29 F.3d at 870.

The Court of Appeals for the Third Circuit has provided the court with six factors to weigh when determining whether to dismiss under Rule 41(b):

(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.

Andrews, 132 […]

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