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Legal Memorandum: Stipulations in a Dismissal Order

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: Dismissal order; With or without prejudice
Jurisdiction: Virgin Islands
Cited Cases: None
Cited Statutes: LRCi 7.1(j)
Date: 06/01/2007

A Court may base its Dismissal Order, dismissing Plaintiffs’ Complaint with prejudice, in part, on LRCi 7.1(j).  This Rule provides that “upon failure of respondent to file a response and brief in opposition to the motion, the court may treat the motion as conceded and render whatever relief is asked for in the motion.”  Invoking this rule, the Court can hold that if Plaintiffs failed to file a timely response and if “[n]either Plaintiff nor his counsels have presented the Court with any valid reasons for the failure to respond to the motion,” these failures apparently warrant the harshest result possible, dismissal “with prejudice.” 

Whether such excuses for untimely conduct are valid or were irrelevant and improper is for the Court to consider.  Lorenzo v. Griffith, 12 F.3d 23, 27 (3d Cir. 1993); Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 F.2d 168, 174 (3d Cir. 1990).  Enforcement of this Virgin Islands local rule “does not contemplate that the court will exercise discretion as to whether the opposing party’s failure to respond was due to excusable neglect or whether the movant will suffer prejudice if the motion is denied.  Indeed, the objective of the rule would be frustrated if the district court had to stop and investigate matters before acting.”  Id.

Even more important, the rule is not meant to be and should not be used as punishment for failure to respond to a motion.  Lorenzo, 12 F.3d at 28 (“Rule 6(i) [now 7(j)] is […]

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