filed: December 10, 1993; As Corrected December 15, 1993. Second Correction January 31, 1994.
Appeal from the District Court of the Virgin Islands (Division of St. Thomas and St. John). D.C. Civil No. 90-00096. District Judge: Honorable Thomas K. Moore
Before: Mansmann, Hutchinson and Lewis, Circuit Judges.
Michael and Mary Lorenzo appeal from the denial of a motion to reconsider an order granting summary judgment in favor of the defendant, William Grogan, d/b/a/ Barnacle Bill's, Inc. The district court had previously determined that the Lorenzos had no legally cognizable claim against a restaurant owner for injuries inflicted by one of its employees and, then, dismissed without comment the Lorenzos' request for reconsideration of the judgment.
In their appeal the Lorenzos claim that the district court could not grant the initial summary judgment without addressing a pending motion to extend discovery when the court had knowledge of the particular circumstances which previously prevented diligent pursuit of discovery. The plaintiffs do not, however, address in their appeal whether the denial of their request for relief from judgment was properly decided by the district court.
We conclude that, although counsel's request for an extension of discovery was not resolved at the time of entry of the merits judgment against the plaintiffs, the district court did not abuse its discretion in denying the plaintiffs' petition for reconsideration. We will, therefore, affirm the order of the district court.
On August 5, 1988, Plaintiff Michael Lorenzo was involved in an altercation with Andrew Griffith in the kitchen of Barnacle Bill's Inc., a restaurant located in Sub Base, Charlotte Amalie, St. Thomas. Griffith, an employee of Barnacle Bill's, became angry over an incident involving another employee's use of his radio and allegedly struck her. When Lorenzo came to her aid, a fight ensued during which, Lorenzo claims, Griffith wounded him with a kitchen knife. As a result of the injuries sustained, Lorenzo filed suit against Griffith*fn1 and William Grogan, d/b/a Barnacle Bill's Inc. The complaint asserted liability against Barnacle Bill's upon a theory of negligent hiring and retention of Griffith as an employee and general negligence on the theory of respondeat superior.
Shortly after an answer to the complaint was filed, limited discovery commenced. Pertinent to this appeal, the plaintiffs requested that Barnacle Bill's produce the employment records of Andrew Griffith. Barnacle Bill's responded that the documents had been destroyed in the devastation of Hurricane Hugo.
At a May, 1991 pretrial conference, counsel for the plaintiffs informed the Magistrate Judge that, in order to undergo treatment for a serious illness, counsel would be "off island" until August of 1991. To accommodate the medical requirements of plaintiffs' counsel, the discovery deadline was temporarily suspended and September 30, 1991 was set as the date that discovery would be closed.
Unforeseen medical complications caused plaintiffs' counsel to remain off island until October 2, 1991. On October 7, 1991, Barnacle Bill's filed a motion for summary judgment. In response, the plaintiffs filed a motion to extend discovery in order to respond to the motion for summary judgment. There is no written resolution of this request for the discovery extension on the record, but, as the district court noted, "the period between the effective date of the filing of Barnacle Bill's Summary Judgment Motion and the date the motion was disposed, was more than adequate for Plaintiffs to respond." App. at 70. Nonetheless, no further discovery was initiated.
Six months later, on March 9, 1992, Barnacle Bill's moved to have its motion for summary judgment deemed conceded under 5 V.I.C. app. V, Rule 6(i), a local rule regarding possible recourse when a party fails to respond to a motion. The plaintiffs opposed the motion on the ground that a request for additional time to conduct discovery made at a January 31, 1992 calendar call had never been decided. The plaintiffs once again requested an extension of the discovery deadline.
The district court did not rule on the plaintiffs' subsequent motion for extended discovery but instead granted summary judgment for the defendant on May 8, 1992.*fn2 The district court noted first that summary judgment cannot be granted by default but only when the record establishes that the movant is entitled to judgment as a matter of ...