Mark Vitalis, v. Sun Constructors, Inc.

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
IDONA WALLACE 	: 	CIVIL ACTION
:
v. 	:
:
KMART CORPORATION 	: 	NO. 02-0107
_______________________________________
ERROL STANLEY, et al 	: 	CIVIL ACTION
:
v. 	:
:
ST. CROIX BASIC SERVICES, INC., et al 	: 	NO. 03-055
_______________________________________
FORREST THOMAS 	: 	CIVIL ACTION
:
v. 	:
:
CENTENNIAL COMMUNICATIONS, et al 	: 	NO. 03-163
_______________________________________
MARK VITALIS 	: 	CIVIL ACTION
:
v. 	:
:
SUN CONSTRUCTORS, INC., et al 	: 	NO. 05-101
_______________________________________
PATRICE CANTON 	: 	CIVIL ACTION
:
v. 	:
:
KMART CORPORATION 	: 	NO. 05-143
Case: 1:05-cv-00101-WAL-EAH Document #: 733 Filed: 10/27/10 Page 1 of 5

GLENFORD RAGGUETTE 	: 	CIVIL ACTION
:
v. 	:
:
PREMIER WINES AND SPIRITS, LTD. 	: 	NO. 06-173
_______________________________________
TERRANCE ALEXIS 	: 	CIVIL ACTION
:
v. 	:
:
HOVENSA LLC and HESS CORPORATION 	:
f/k/a AMERADA HESS CORPORATION 	: 	NO. 07-091
MEMORANDUM OPINION
Savage, J. 	October 27, 2010
Casting an interlocutory appeal as a motion for clarification in these cases where the
plaintiffs seek recusal, 1 plaintiffs’ counsel, Lee Rohn, accuses the district judge of violating
an order of the Third Circuit Court of Appeals. In doing so, she misrepresents the record
and misinterprets the chronology of events. 	Thus, it is necessary to present accurately
what occurred and when.
Overlapping Orders
The Third Circuit’s August 13, 2010 order directing that all discovery issues relating
to the recusal motions be referred to a magistrate judge was not entered until August 17,
2010. In the meantime, before notice of the Third Circuit order, three orders were issued
and forwarded to the Clerk of Court who docketed them on the same day. Immediately
1 Motions to recuse the assigned district judge were filed in seven cases based upon a perceived
bias against, not the plaintiffs, but their attorney. In four cases, the motions were filed after motions for
attorneys’ fees and costs had been filed by the prevailing defendants. The other cases are in the pre-trial
stages. Although the Bergan action was not consolidated with these cases and no motion to recuse had
been filed, plaintiffs’ counsel included it in the caption of the petition for mandamus.
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upon receipt of notice of the Third Circuit’s order, all discovery matters were referred to
Magistrate Judge George W. Cannon, the only magistrate judge assigned to the St. Croix
Division. Thus, despite plaintiffs’ counsel’s effort to create a contrary impression, the three
orders were not issued in violation of the Third Circuit’s order.
Intra-Judicial Communications
Mischaracterizing actions taken by the district judge and the magistrate judge by
conjuring what occurred between them, plaintiffs’ counsel asserts that Magistrate Judge
Cannon was instructed on how to rule on objections during her deposition. She claims that
this violated the Third Circuit’s order. She is wrong.
Lee Rohn’s deposition was originally scheduled for July 26, 2010. 	It was
rescheduled to accommodate her vacation plans. She filed a motion for a protective order
seeking to close her deposition to the public and to seal the transcript. Given the impact
of the procedural issues raised in the motion on the imminent deposition, I discussed the
motion with Judge Cannon, who had been appointed earlier to preside over all depositions. 2
I specifically instructed him that the deposition was closed to the public, and only the parties
and their counsel could attend. To prevent defense counsel from going beyond the recusal
issue, I reiterated my previous ruling precluding counsel from questioning Ms. Rohn
regarding her pending criminal drug charges, emphasizing that only those matters relevant
to the recusal motions were discoverable. 	In short, the instructions given to Magistrate
Judge Cannon were in favor of Ms. Rohn and had been given before notice of the Third
2 Because the plaintiffs’ allegations cast a cloud over the integrity of the court and affect the
orderly administration of justice, deciding the motions for recusal at the earliest possible date consistent
with fairness was deemed necessary. Accordingly, to avoid any undue delay that would have occurred if
objections were not considered until after Ms. Rohn’s deposition had been concluded, I ordered Magistrate
Judge Cannon to preside over the deposition so that he could make immediate rulings. Thus, before Ms.
Rohn filed her petition for mandamus and the Third Circuit ruled upon it, Magistrate Judge Cannon had
already been assigned to rule on objections at her deposition.
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Circuit’s order was received.
Appeal of Discovery Decisions
Plaintiff’s counsel also complains that any appeal from the magistrate judge’s rulings
on the discovery motions should have been referred to a district judge of her choosing.3
Initially, we note that one can read the Third Circuit’s order as giving the magistrate
judge the final word on discovery issues. Even if it did not and an appeal to a district judge
was contemplated, there is no basis to complain that the district judge who must decide the
recusal motions was to decide the discovery appeal. The decision had been made by a
neutral judicial officer, the magistrate judge, as mandated by the Third Circuit.
Before considering the appeal of Magistrate Judge Cannon’s rulings, I consulted with
Chief Judge Curtis Gomez. He declined to reassign Ms. Rohn’s appeal to another judge
and instructed me to decide it.
Ms. Rohn incorrectly states that Magistrate Judge Cannon is assigned to District
Judge Finch. Magistrate Judge Cannon is assigned to the St. Croix Division of the District
Court of the Virgin Islands. 	He is the only 	magistrate judge on St. Croix. 	In fact,
Magistrate Judge Cannon performs duties not only for Judge Finch, but for all judges sitting
by designation in the St. Croix Division.
More importantly, none of the intra-judicial communications covered the matters
raised in the appeals. Those discussions, which took place before the Third Circuit order
3 In her appeal, Ms. Rohn challenges the magistrate judge’s ruling denying her request to depose
the district judge whom she seeks to recuse, a district court reporter, and unidentified persons. In the
order of July 14, 2010, I explained why Ms. Rohn was not permitted to engage in undefined discovery.
Given the gravity of the allegations in the recusal motions, I assumed that she had conducted the
reasonable inquiry required by Fed. R. Civ. P. 11(b) before filing them. At the same time, she was not
precluded from calling at a later evidentiary hearing any witness who had information or evidence bearing
on the issues raised in the motions for recusal.
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was entered, dealt with the issues that Ms. Rohn had raised in her own motion. In other
words, none of the discussions touched upon matters that were the subject of the appeals.
Conclusion
There was no violation of the Third Circuit’s order regarding discovery. All discovery
matters were referred to a magistrate judge who acted independently and without
instruction from the district court. Therefore, there is no need for clarification of the Third
Circuit’s order.
s/Timothy J. Savage
TIMOTHY J. SAVAGE, J.
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