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Legal Memorandum: Stipulations in a Dismissal of a Complaint

Issue: Under the laws of the U.S. Virgin Islands, what determines whether a dismissal should be with or without prejudice?

Area of Law: Litigation & Procedure
Keywords: Dismiss a complaint; With or without Prejudice
Jurisdiction: Virgin Islands
Cited Cases: None
Cited Statutes: LRCi 7.1(j)
Date: 06/01/2007

The Court may ground its decision to dismiss a Complaint with prejudice, in part, on LRCi 7.1(j) which provides that when a party fails to respond to a motion within the stated time, “the court may treat the motion as conceded and render whatever relief is asked for in the motion.”  However, Third Circuit authority construing this rule suggests that if it is to be used to grant a dismissal that dismissal should be without prejudice.  The reason is that the purpose of the rule is not to punish failure to obey the rules but rather the sole purpose is to facilitate courts’ disposition of motions. 

However, if the Court ignored the clear standards governing that Rule which prohibit fact-finding on a motion to dismiss for failure to state a claim, then in its Dismissal Order, the Court clearly made findings of fact, this would have been error.  For example, if the Court stated that “[t]he Court finds that the Plaintiff’s failure to tender the earnest money contract was a material breach of the contract,” then, this would be a question for the jury.  Whether a particular action amounts to a material breach is a classic fact question for the jury. 

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