SUPERIOR COURT OF "I HE VIRGIN ISLANDS
DIVISION OF S"! CROIX
JLI m ST ROSE; VIRGIME GEORCE9 R\YMO\D Case 1N0 SK 2002 CV 00598
AI LEYNE; EDG «R B xRRIOS, m!) OTHER PFRSONS
T00 NLMEROl 5 T0 0112mm, A CLASS AC1 10x i Action for Damages
PI UNTIHS, Complex Litigation Division
V JIM} Trial Demanded
VIRGIN ISL \‘\DS IVDLQTRIAL M unmAxCF
CORPORATION (IMO, JACOBS INDLSTRHI
M AINTEN mCE CORPORATION (JIMC),
HOVENS A, LLC, HOVIC, AM) AVIILRADA Hr SS
CORPORA rim,
DEFEI\D n15 '
Cite as 2024 VI Super 18
Appearances
LFE J ROHN ESQ
RHEA LAWRENCE ESQ
MARY FAITH CARPENTER ESQ
I 66 J Rohn and Associates LLC
Christiansted V100820
F0} P/amtgffls
CHARLES E LOCKWOOD ESQ
GREGG R KRONENBERC‘ER ESQ
GEORGE H LOGAN ESQ
Dudley Newman Feuerzeig LLP
Chxistiansted V100280
F0; Defendant Vugm Island? [ndusn ml Mamimance C01p01at10n
STEPHANIE L ADLER PAINDIRIS FSQ
AI [CIA M CHIL ESQ
Jackson Lewis P C
Orlando FL 32801
f0; Defendant Jacobs Indus!) Ia] Mamtemmcc C01 p01 anon
' Aithough the caption vx as amended when the Second Amended Complaint wax filed the Court has Ietained the p1i01 caption
to avoid contusion since the amendment remm ed Jaeobs Industrial Maintenance Corpmation and its dismissal is the foeux of
motiom addressed herein
51 Rose a (1/ x I I Indus Marni Low eta] 2074 VI Supex 18
Case No SX ”002 CV 00598
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CARL A BECKSTEDT III ESQ
EARNESTA L TAYLOR
Beckstedt & Kue7ynski LLP
Christiansted V1 00820
For Defendants HOVENS’A [1P Hess Oz! lngm Islands C01p01anon (Ind Ameladu Hess C0) p01 anon
CAROLYN F O CONNOR ESQ
JOSEPH T HANLON ESQ
Wilson Elsa Moskowitz Edelman and Dicker LLP
Madison NJ 07940
To; Defendant Hess Caipozarlon
MEMORANDUM OPINION
W ILLOCKS, Administrative Judge
fill BEFORE THE COURT is a motion filed by the Plaintiffs to amend the order dismissing
Defendant Jacobs Industxial Maintenance Corporation (hereinafter ‘ Jacobs lMC , ‘JIMC ’ 0r ‘ Jacobs ’)
to allow for interlocut01y appeal pursuant to Title 4 Section 33(0) of the Vixgin Islands Code In the
alternative, Plaintiff‘s seek reeonsideration 0f the order and leave to serve process on Jacobs [MC late
Jacobs [MC and Defendant Virgin Islands Industrial Maintenance C01p01ation (hereinafter IMC ’) filed
responses in opposition to the motion The other Defendants did not respond Plaintiffs filed separate
teplies to Jacobs IMC and t0 IMC The substantive arguments raised in each are lax gely the same however
Plaintiffs contend that JIMC’S response must be stricken since it was dismissed and therefme does not
have the right to be heard Plaintiffs also filed a motion f01 an extension 0ftime to file thei1 Ieply t0 IMC’S
response which IMC Opposed, and objected in thei1 reply to JIMC being heard in opposition
1Q Having e0nside1 ed the 211 guments 0f the palties, as well as the informal report of the Staff Master
following a status conference With the panties and taking note of prim orders the Staff Master issued
questioning whethel Plaintiffs’ motion is more applopriate under Rule 54(b) of the Virgin Islands Rules
of C ivil Plocedure, the Coun now for the reasons given below concludes that the motion to amend t0
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prox ide f01 inteilooutory appeal or in the altcmative for ieconsideration must be denied The Court also
finds JlMC s response is propeily befme the Court and that Plaintiffs tailed to show good cause for an
extension of time Thus Plaintiffs’ reply to IMC’S iesponse will be disregaided Howe\ er e\ (,1) though
certification fox inteilocutory appeal is not propel the Court does find that certifying the dismissal of
Ideobs as final under Rule 54(b) is appropriate This is case involves multiple claims and multiple parties
and them is no just reason for fuithei delay given the decades that haw: passed sinee J aeobs [MC was
untimely sewed to make the parties wait until all claims have been adjudicated to leam “116(er Jacobs
should be reinstated Reversal and remand at that junctu1e would, in this Court 8 assessment, be contrary
to justice Since little discovery has occurred notwithstanding the age of this case, if Jacobs IMC’s
dismissal weie leveised it would come before the claims are adjudicated and it it were affirmed, it would
have an impact on how this case proceeds
I FACTLAL AND PROCEDURAL BACKGROUND
13 Julian St Rose, Viiginie George Raymond Alleyne, and Edgar Bairios (hereinafter ‘ Plaintiffs )
sued IMC Jacobs [MC HOVENSA LLC (heieinafter HOVENSA ) Hess Oil Virgin Islands
Corpoxation (heieinaftei HOVIC ) arid Ameiada Hess Corporation (now known as Hess C01p01ation)
(heieinaftei ( Hess ) 1°01 damages on their own behalf and on behalf of a class of tormei employees of
IMC and Jacobs IMC According to the complaint filed on September 18, 2002 and amended on Maich
4 2003, Plaintiffs initially wmked for [MC but during meeting in Octobei 1999 with lMC and Jacobs,
IMC and Jacobs rcpiesented that it Plaintiffs agreed to ‘ being tiansteiTed to J [aebos] IMC they would
ietain their rights including date of hire, seniority and seveiance pay and other benefits accrued while
woxking for [MC ’ (First Amend Compl 1W) ) Plaintiffs agreed to the transfei but weie lam teiminated
between Decembei 2001 and Septembei 2002 They did not receive severance 01 benefits
1J4 Plaintiffs contend that HOVENSA with HOVlC and Hess (hereinafter ‘ Hess Defendmts )
(.1 Rose (fa! t ,1 I Indus Marni (mp era] 2024 V1 Super 18
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dew eloped a plan to have everyone f1 om IMC m0 ved to J 300135 IMC became the Hess Defendant.» V» anted
t0 tome long tum employees 101 e0ntxact0rs to have to sign mandatory arbitration agieemehts in order
to w01k in the refinety (See Amend Compl 1] 32 filed M31 8 2019 ) Plaintiffs sued the Hess
Detendant‘; INK and Jacobs IMC for bieaeh 0f the duty of good faith and tair dealing \iOlation of the
Vitgin Islands Plant Closing Act and traud They seek punitive ddmagee
€15 Plaintiffs filed their complaint on September 18 2002 as amended on Mach 4 2003 Summons
iesued tor all Detendants and Plaintiffs served all Defendants all except J aeobs lMC, that is Teehnieally
Plaintiffs did serve Jacobs IMC, on September I l 2003 but seniee was late and without leave 01‘ eoufi
Plaintitts sought to ewe the deteet the next day by filing a motion on September 12 2003 for leave to
gene ‘ nzmc pm rune They explained that their attomey w as told by the process sen er, Antonio M
Benjamin that all Defendants had been served but sometime in August 2003 they reali/ed Jacobs had
not been served with discoy e1y demands Plaintiffs eounsel looked but could not lOeate a return of serviee
so eounsel followed up with the process sewer Afte1 a delay Benjamin admitted that he erroneously
withheld seivice fox Jaeobs [MC
116 Plaintiffs cited personnel changes in their attorney 3 office whieh they contend contributed to
the delay in realizing Jaeobs was not served '1 hey also noted that the ease was still in ‘ its infancy ’ that
motions to stay discovery and to dismiss were pending and that late service on Jacobs lM( would not be
ptejudieial becauSe, awarding t0 Plaintiffs, Jacobs IMC was part of a joint venture with IMC and
theiefme, had notice of the law suit when IMC was served Plaintiffs asked for sixty days to serve Jaeobs
1MC but tailed in their motion to acknowledge that Jaeobs had already been sewed, with proof of service
filed the day betme
9'17 The Couit (Rees J ) denied Plaintifts motion in an order dated November 23, 2003 and enteied
Nox embei 26 2003 The C curt tiist eenSidered whether the reasons Plaintiffs gave 101 not timely serving
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Iaeobs IMC show ed good cause to g1 ant an extension The Court found they did not (See Order 3 entered
Nov 26 2003 ( Plaintiffs 1aek 0f oveisight and the process servei ’3 de1inqueney are the reason for non
sen ice P1aintiffs haVe failed to piovide the Court with good eause for tai1ing to gene JIMC in a timely
mannel ’) ) The CouIt next considered whether other factors warlanted an extension and hem
aeknowledged P1aintitfs’ assertion about lambs IMC haVing notice thiough service on IMC The Court
agreed that if Jacobs IMC and IMC weie ‘ engaged in ajoint ventuie” then ‘ service on one party is service
on a11 ’ 1d at 4 (Liting 26 V I C § 3(0) The Couit then concluded that these reasons stated by Plaintiff
d0 juslzfi extending the time for service to JIMC 10’ (emphasis added) But the Court nonetheless,
denied Plaintiffs motion
$8 Once the motion was denied, Plaintiffs proceeded under the assumption that leave to SCIVC was
unnecessal y because >UV1£€ 0n IMC was imputed to Jacobs [MC That is, when the Lourt denied their
motion to Serve Jacobs IMC mmc p10 rune Plaintiffs took that as the Ccurt finding that they did not
need moxe time to seive Jacobs IMC Consequently, on January 14, 2004, Plaintiffs moved fox entry of
defau1t once Jacobs 1MC tailed to appear 01 otherwise defend Technically J aeobs [MC did appear four
months eailiel however, on OetobeI 14 2003 but to file a motion to dismiss under Rule 12(b)(2) for lack
of pexsonal juiisdietion and unde1 Rule 12(b)(5) for insufficiency of process Plaintiffs opposed that
motion on Novembei 18 2003, and Jacobs replied on Decembei 16 2003 The parties remained in a state
01 limbo fin the next twenty years with Jacobs having opposed default having filed several notices
advising of agreements with Plaintiffs to extend briefing deadlines having appealed at status confetenees
and hearings and having moved for (and obtained) or opposed reconsideration of celtain 01 (1615 In fact
the Older that Plaintiffs want amended 01 ieeonsidered iesulted from a motion Jacobs IMC filed tel
rewnsidetation
W) To explain duting a status confeienee 0n Januaiy 23 2019, the C0urt(M0110y I ) heatd a1 gument
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110111 Jacobs IMC on its October 14 2003 motion to dismiss Jacobs refeired the Court to the No\ emhet
73 2003 Order, which teehnieally postdated its motion to dismiss and asserted that the OIdCl was elem
and controlling The Court disagreed in part (See Hr g Tr 25 15 17 (“T HE COURT The reasons is
what 8 eonfusing but the oxdet is cleai and the order is what eontrols ’ ) ) Plaintitts counteied that the
ordei could be ieeonsidered at any time prior to final judgment and asserted that it would be manifestly
unjust f01 the C Quit to have found that J acobs [MC had aetual notice of the law suit thtough 1\1C and then
letme to grant an extension of time to serve When the Court pointed out that Plaintiffs had not filed a
motion to ieeonsider in the yeais since the {\ox ember 25 2003 Order was issued, Plaintiffs otfeted to file
one stiaightaway The Court also questioned it service was necessary since Jacobs had been served See
[(1 at 30 8 12 ( THE C OURT Hold on They mete sen ed The only question whether the Court shall
allow the SCIV1C€ to be made notwitlbtanding the violation of 20 days whether there was good cause 01
extenuating eireumstances ’) The Court reiterated howevei that no motion t01 reconsideiation was filed
in the preceding fifteen yeals which Plaintith took issue with referiing the C oun to a 1equest they had
filed in 2006 in pan to seek guidance on the impasse
1110 1 mm the bench the Court gave Plaintiffs a deadline not to file a motion for [econsideration but
to file a motion t01 leave to file the motion for ieeonsidCIation out oftime Discussion on othet matters
ensued including discoveiy and Plaintiffs delay in filing a motion to certify a class Relevant here, at the
conclusion of the hearing the Court directed Jacobs lMC to provide Plaintiffs counsel with a list of the
names of all employees Jaeobs IMC had hiied and terminated in 2001 and 2002 The Court redueed its
bench luling to miting in a Januaiy 31 2019 Order which included a deadline tor Plaintiffs to file a
motion fin leax e to file a motion for ieeonsideiation out offline, and a deadline for Jaeobs W1C to piovide
the list of employees
fill 1 On February 8 2019 Jacobs [MC filed a timely motion for reconsideration ox elaxifieation laeobs
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objeeted to the Conn having given Plaintiffs a deadline to file a motion for leaxe to seek Ieeumidexation
out of time gi\ en the amount oftime that had passed and objeeted to haxing to provide 11164 of employees
because ‘JIMC has 11€V€I been sewed in in this action filed in 2002 (Def lambs Indus Maint
Cotp ’3 Mot tor Reeonsid andtm Clarif of the Ct’s Jan 31 2019 Ordet 1 filed Feb 8 2019 ) 1n the
a1tematiVe Jacobs sought claxification 0f the scope ofnames it had to provide Plaintiffs noting that every
employee who was hired or te1minated by Jaeobs during the relevant timefiame would not be in the Class
of indi\ iduals Plaintitts seek to represent Plaintiffs did not file a response to JIMC s motion and also did
not file the motion for leaxe to file out 0ftime a motion for reconsidelation of the Novemhe1 2}, 2003
Oldel befme the deadline the Couxt set in its January 31 2019 Oldel
1,112 On Mareh 4 2019, the Court (M0110)! J ) granted JlMC’s motion tor xeconsidelation agreeing
that it eould not 0rde1 Jaeobs to do anything because Jacobs was not timely sen ed The Court furthet
noted that it had heard argument on JIMC 5 October 14, 2003 motion to dismiss and that Plaintiffs failed
to file a motion for leaxe to file a motion out 0ftime pertaining to serViee on Jacobs The Comt glanted
Jaeobs s motion for reeonsidexation and dismissed Jacobs for failure to effectu ite serviee 0fp10eess[ ]
(Older 2 enteled Match 4 2019 ) The C0u1t has no pelsonal julisdiction ova 11MC[ ] it eoneluded
and cannot require it to submit a list 01 names of all employees hired and terminated by it in 2001 and
2002 ’ Id Two months 1ate1 Plaintiffs filed the motion, addlessed herein to amend the Mareh 4 2019
Older to provide fox interIOeutmy appeal or altematix ely f01 reconsidetatioh J lMC filed an unopposed
motion for an extension 01 time to respond whieh the Court granted JIMC filed its lesponse on June 28
2019 Plaintiffs also moved for an extension of the time to file its replies, which IMC opposed Plaintitte
filed thei1 reply to [MC 5 Iesponse on July 8, 2019, and their reply to JIMC S response on Julv 18 2019
[I DISCUSSION
3113 Before adchessing the motion to amend or for Ieconsideration the Court fitst must addless
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Plaintifls’ motion for an extension oftime as well as Plaintiffs" objeetion t0 Jaeobs lMC s iesponse Fliese
aneillary matteis must be addressed first because the outcome will determine the arguments the CQuit ean
eonsider Cf G01 [0/1/16 0 S I I \ Sennullaslel Co [LC N0 8X 16 CV 700 2018 VI LEXlS 100
><6 (V 1 Super Lt Sep 26 2018) ( Because the motions stipulations and notiees impact on what
arguments are betOie the C Curt and therefore what the Court can consider in iendeiing a deeision the
Court must resol\ e these aneillary motions first, before proeeeding t0 the merits ’)
A First Motion for an Extension of Time
114 Pursuant to Rule 6 l Iesponses to motions except Rule 12 and Rule 56 motions axe due Within
fourteen days aftei the motion is served ‘ [u]nless othemise ordered by the court V I R C i\ P 6
l(f)( 1) Replies to responses axe similarly due within fourteen days aftei seivice unless the court orders
otherwise See V I R Ci\ P 6 l(t)(5) In this instance the Court (Molloy J ) did ordei otherwise when
it issued Standing Ordei N0 4, which piovides (f01 all cases pending in the Complex Litigation DlVlSlOfl)
that
the deadline for all responses is extended to twenty eight (28) days lrom the date a motion
is sewed and filed and the deadline f01 all replies is extended to twenty eight (28) days
from the date the iesponse is served and filed provided that the paxties meet and confer as
directed and piovided fUI‘thel that a different deadline is not specified by court ordei
Standing Cider No 4, § 5 entered Mar 5, 2019 [n w Complex [mg Cases Pendmg m
the Supei CI of the VI Case No SX 2019 MC 035 (nal/ab/e at 2019 V1 LEXIS 28
7 8 (VI Super Mai 5 2019)
Seetion 6 further provides that ‘ [b]ecause additional time has been gianted to file responses and Icplies,
motions and stipulations f01 an extension offline or fox leave to file or act out of time will only be granted
on motion showing exceptional Circumstances ’ Id at *8 How ever, parties are directed to ‘ pieceed as
though leave were g1 anted ’ if then iequest has not been ruled on within twenty eight days but With full
knowledge that, if exceptional eircumstances me not found, the Court may disxegaid 0r iejeet the late
filing Id (eitingAuguslmi Hcss 0111/1 Corp 67 V l 488 503 05 (Super Ct 2017))
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1113 Additionally Section 1 of Standing Order No 4 diiects that counsel must meet and eonfet before
fi/mg am mollun 01 quzzesr including dispositive motions and discovery motions so that the issues axe
crystalized and aneillaiy matters, whieh often can be resolved thtough communication without cou1t
inter» ention ale iedueed ’ Id at >‘6 (emphasis added) This requirement camperts with othei meet and
confer requirements including, relevant hue Rule 6 2 of the Virgin Islands Rules 01‘ Civil Proceduie
which proxides that [21111 motions seeking an extension of time shall include [a] statement that the
moving party has eonteued with opposing parties and there is agreement 01 objection to the motion or
that despite diligent etfmt the moving party cannot ascertain opposing counsel 5 position ’ V1 R
Civ P 6 2(a)
1116 Plaintiffs filed their motion to amend the March 4 2019 order or f01 ieeonsidcration on May 9
2019 [MC filed its iesponse on June 4 2019, two days before its 28 day deadline Plaintiffs ieply was
due 28 days after that or by July 2 2019 Plaintiffs filed their First Motion for Extension 01‘ Time on June
24 2019, stating (ineon ectly) that their reply was due the same day 7 They asked for fourteen mom days
01 until July 8 2019 because LOUIISCl responsible for drafting the Reply has been out ofthe country on
a pre planned family vacation to Cape Town South Attica since June 3 and Vt ill not be back until June
25 ’ (PIS Fiist Mot fOI Ext of Time 2 filed June 24 2019 ) Plaintiffs lepresented that they tried to
confer With1MC per Rule 6 2 but ha[d] not received a Iesponse [d Plaintiffs also concluded that IMC
will not be piejudiced by this delay and an extension Vt ill not have an impact on these proceedings as the
extension is brief ’ Id
1117 {MC filed its response in opposition on July 1 2019 [MC fitst acknowledged that Plaintiffs did
7 Putsuant 10 Rule 6 0fthe Virgin Islands Rules ofLiVil Procedure when the period is 14 days or less (10 not count intermediate
Saturda}s Sundays and legal holidays ” V I R Civ P 6(a)(1)(B) Plaintiffs were correct that 14 days per Rule 6 frOm
lune 4 2019 would have been lune 24 2019 ifthis were an ordinary civil case Howe\ er because this is a complex east the
28 day deadline pun ided in Standing Order No 4 controlled whim; Plaintiffs mote time
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attempt to wiifer as requiied by the lulu ‘ by sending an email at 12 53pm (m h m 24 2019 (Dd V I
lildus Maint ( 0113 s Opp’n to P15 Hist Mot tor Ext 0101 ime 1, filed July 1 2019 ) Plaintiffs filed then
motion appxoximately two hours latex at 3 19pm ‘Given the Supieme Court 8 decision to include
Lliligenee as a precondition to satisfying the iequirement to attempt to confer a wisory email followed by
immediate filing can haidly be said to meet this requirement[ ] 1d at 2 lMC a1 gued Aeeording t0 IMC
the masons uhy it Opposed giving Plaintiffs more time W616 the same masons why it opposed Plaintiffs’
underlying motion because they have tailed to meet numuous deadlines Id FLuther the CQUIT
aheady gen e Plaintiffs a deadline February 4 2019 to file a motion for leave to seek iecomideration
but of time Plaintiffs ignored that deadline, W1C argued yet went ahead and filed an untimely motion for
reconsideiation while also ignoring the tequitement that they seek leave fix st Since the underlying motion
is untimely and Plaintiffs did not comply with Rule 6 2 in filing theiI motion for an extension 0ftime, the
C 01111 should deny then tequest for 111016 time to file then reply IMC argued Plaintiffs did not file a reply
to [MC 3 iesponse
1118 The. Court agiees with IMC that Plaintiffs failed to satisfy the meet and confei tequirement
Fiist, IMC overlooked the Sepaiate tequiiement Standing Oldel No 4 imposes on counsel to meet and
confer before filing any motion or request in a complex case Plaintiffs motion for an extension 0t time
does not include a certification, as such of counsel 8 attempts to confei bef01e filing it In this instance
0x eilooking the Standing Oldu is hannless because Rule 6 2(a) imposes a similar requiiement, that the
movant include a statement in the motion indicating whethel the opposing panties agree or object to the
tequest for mete time 01 a statement that despite diligent etfoxt the movant could not asceitain opposing
counsel’spositions Sac V1 R Ch P 6 2(3) Plaintitfs failed to satisfy this requirement Diligent means
[definition citation] One email sent to opposing LOUllSCl approximately 110L113 before a motion is filed
With the e0u1t does not satisfy the ‘ diligent effort requilement in the rule See [(1 ( despite diligent etfort
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the moving patty eannot ascertain opposing counsel's position )
{ll 9 Plaintiffs also failed to way then burden to show good cause When an act is required or allow ed
to be done by or within a specified petiod the court may upon a showing of good cause 01 excusable
negleet extend the date f01 doing that aet ’ V I R Civ P 6(b)(l) Faetoxs courts can consider include
when the request was made (whether before or after the deadline has passed) the reason for the delay
whether the teason was within the movant 5 control, prejudice to the othet parties the length of the delay,
the impact on the proceedings whether the movant acted in good faith, and any othet relevant
Circumstances See 1d The mox ant must also disclosc ‘ the number of motions for extension 0t time that
have been filed by the movant with tespeet to the same presexibed time period ’ V l R Civ P 6 2(b)
By titling their motion ‘ First Motion fox Extension of Time ’ Plaintiffs disclosed that it was their first
request They also asked to have until July 8 2023 which is only six days after the ieply was initially due
per Standing Ordei No 4 So the number of times Plaintiffs sought and extension and the length of the
delay ate taetms that lean in Plaintiffs fax 01 How ever, the reason for the delay and whethe1 the reason
was within the movant s LOl‘tthl are factors that weigh heavily against Plaintiffs Plaintiffs filed the
underlying motion on May 9, 2019 They should have appreciated that pet Standing OldCI No 4
responses were due four weeks later and 1eplies four Weeks thereaftet They calculated theit time to filed
their reply to IMC s response based on the 14 days piovided under Rule 6 l(t)(5) Howevei 14 days undel
the Virgin Islands Rules of Civil Proeedme W orks out to be more like 21 days because only business days
are eounted Cf VI R Civ P 6(a)(1)(B) (excluding weekends and legal holidays for all deadlines 14
days 01 less)
@1130 EV en under Plaintiffs’ own approaeh they knew on June 4 2019 that thei1 reply would have been
due on June 24 2019 (per Rule 6 l), and they also knew that the attorney who was iesponsible 101 drafting
that reply had lett the TeiTitor} and the country on a pre planned \aeation the day before on June 3
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2019 Y mt Plaintiffs waited three weeks until June 24, 2019 (they day they believed the reply was due)
to eontaet opposing counsel and move for an additional two weeks Conits in the Virgin Islands have
eonsiatently held that a busy schedule of counsel by itself, does not establish [good eatise 01] exc usable
neglect ’ People i 1cm (do 2023 V1 Super 12, 11 8 (brackets omitted) (quoting [jdttdidS \ [less 01/ VI
( 01p 69 V 1 136, 142 (Supei Ct 2017)) The reason for the delay is entirely within Plaintifts’ eontrol
and insuffieient to show good muse partieulatly when the 1equirement imposed by Section 6 oi Standing
Oidet No 4 is embittered, namely that exceptional circumstances be shown to “£1116th an extension
beyond the 28 days already given t01 responses and replies in complex cases
1121 Ultimately Plaintiffs ieply was only filed six days late Nevertheless, the Coutt cannot find good
cause to excuse the delay Plaintiffs failed to eomply with the meet and confei tequirement in Section 1
of Standing Order No 4 and the diligent effort requirement in Rule 6 2 The motion spans two pages does
not identify when the eonflict aiose 01 why another attorney in the same law film could not (halt the ieply
01 at least have it piepared fol the responsible attorney 3 review who was due baek on June 25 2019
Plaintiffs also failed to explain why they needed another two weeks or until July 8 2019 again aceording
to their own calculations While neithei Standing Ordei No 41101 Rule 6 2 1ddress what the consequences
ate for failure to comply this Court believes that parties cannot take it upon themselves to pick and choose
which orders and rules to follow and when Here the Coutt finds that the apptopriate consequence is to
deny Plaintiffs motion and diSIegard then reply to IMC’s response 3
Although the Court will disregard the substanth e arguments Plaintiffs make in their reply to lMC s response the Couit must
point out that Plaintiffs objection to [MC 5 response is itself out of order Plaintiffs contend in their ieply that {MC had no
right file a iesponse Howevei ‘the 111le ct procedure require that parties file responses to motions Replies are optional
responses are mandatory Olson i 1’] Han; & Pane) lull: 2023 V1 Super 61 ‘, 21 Rule 6 l mandates that may party
file a It spawn within 14 days after service upon the party ofam motion ’ V 1 R Ci\ P 6 MW 1) (emphasis added) 1 he
rule does not say may file does not require responses only to certain motions 01 only to motions the impondino patty is
intetested in 1f a party is sen ed w ith a motion that part) must file a tesponse Siam all parties are with ten exceptions not
relex ant hem served nith all papers filed in a case every party must respond to every motion lhe contents of the response
may be to 10in anothet patty 3 response or to state that the party takes no position The Court does acknowledge one apparent
inconsistency in the rules insofai as Rule 6 1(c) directs that only responses in opposition may be filed while Rule 6 2(1)
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B Objection to Jacobs [ML Filing a Response
$12 ’ in their reply Plaintiffs object that Jacobs filed a iesponse to then motion As the Cou1t noted see
supza note 3 even party must tespond to every motion What an guments oz position the patty takes
is up to the party whether to iespond is not However, unlike the objection to lMC 5 response Plaintiffs
object because lacobs has been dismissed and is no lOflng a party in this action ” (Pls Reply to Bet
Jacobs Indus Maint Corp ’s Opp n to Pls Mot to Amend Ct Oldei to Provide fox lntetlocutory App
01 Alternatively to Reeonsid Ct ’s Oldei of Dismissal 2, filed July 18 20l 9 (hereinafter ‘ Pls ’ Reply )
Plaintiffs contend that as a non patty Jacobs has no tight to be heard or to file papeis with the court Sec
10’ at 3 4 ( JIMC has ignored the procedural rules and intervened here without any explanation as to why
JIMC should be allOVVLd to file a briefin a ease in which it is no longei a patty This Court should ietuse
to allow this unauthorized brief by JlMC a non paity to this litigation[ ] and strike it completely from the
reeotd ”) 7 his is a question offirst impiession in the Viigin Islands
$23 Plaintitts contend that once a patty has been dismissed that party no longer has a tight to be head
Instead, Jacobs must aw ait a tuling on the motion to amend or reconsidei its dismissal and cannot act
unless and until it is tonnally brought back into the case Only then can lambs seek whatevci relief it
believes appropriate Alternatively if the Coutt weie to deny ieconsideiation but giant the motion to
amend the Older im intetlocutOIy appeal Jacobs could be heard on appeal But as a dismissed patty Jacobs
requires the filing of a [espouse to any motion C ompau V I R (it P 6 He) ( Only a motion a response in opposition and
a iepl} may be sewed on other panties and filed with the coun ) n 11/] V I R Ci» P 6 2(f)(2) ( UnleSs otherwise ordered
by the noun a patty shall file a responsL Vt ithin 14 days after sen iee upon the party of any motion ) The in opposition
language is contradictory as what arguments the patty makes and what position the party takes is up to the party Courts cannot
otder parties to oppose motions But nouns can order parties to respond, which is what Rule 6 2(1) requires So [MC not only
had a right to respond to Plaintiffs motion they (along with llMC and the Hess Defendants) had a duty to respond
Consequently Plaintiits assertion that IMC should not be pennitled to have a say in this mattei’ because lML is not
included in the scope of the ielief requested[ ] (Pls Reply to [MC s Opp n to Pls Mot to Amend Oidu to Pr0\ide for
Interloeutoty App 01 Altematit ely Mot to Reconsid 2 filed lul) 8 20l9) is rejected insolar as Plaintiffs beliue that only
lambs [MC might hate been peiinitted to respond Of course Plaintiffs could assert that the Court should disteUard IMC s
arguments That is entiiely appropriate and the proper scope of a reply But contending that IMC s Iesponsc \\ as not
Vt attained and that it should not be peiinitted to hate 3 say is improper
SI RUSL L[(ll t I I [Ill/US 11mm Com eta] 2024 Vl Supet 18
Case No S\ 2002 " V 00398
VILMORAINDLM OPINION
Page 14 of 29
has no to oppose that motion, Plaintiffs contend See It] at 2 3 (‘ JIMC is no longer a party to this case
and theretm as a non patty it had no right to 1) be served with a copy of Plaintitts Motion and 2) file
the instant Opposition ’) Instead JIMC move for leave to intervene if it “ants to be heard in
opposition See 20’ at 3 (eitingVI R (iv P 24(3)) The Court iejects Plaintiffs argument
1124 Putting aside the impxaeticality in tequiring that a formet party move tor leave to intervene so1e1y
to iespond to a motion to set an inteilocutory dismissal aside 4 the plain language of Rule 5 may refute
Plaintiffs’ argument Although there is no piecedent directly on point there is some guidance ‘ dismissed
parties technically remain parties for some purposes until a final order is enteied MaI/zmm 1 Hcss ()1!
I 1 Com 75 VI 141 155 (Super Ct 2021) ‘The reason why is clean an order dismissing fewei than
all parties is interlocutmy and can be vacated at any time Thus, dismissed parties can always be
teinstated on propel grounds ’ 1d at 155 56 (citing Island Tile & Malble [LC1 Beifiana’ 57 V1
596 (2013)) ‘C ase 1th does not address whether current parties must continue to seive court papeis on
parties pieviously dismissed from a case At fiist blush it may seem unnecessary and could also inCiease
costs unnecessaiily JoneSi [ocklzeedMaltm Corp
68 VI 158 186 n 10(Super Ct 2017) But with
the advent ofeleetronic S€1V1(,€ and the variety ofways of effecting sen ice it might not be as bu1densome
as betote MOILOV er former parties may want to be (01 pethaps even should be) kept abreast of the status
of the ease ’Id (citation omitted)
$25 One way in Which dismissed patties remain invoked is with stipulations f01 dismissal ‘ Seyeial
federal and Viigin Islands courts have recognized that dismissed patties remain parties for purposes of
4 Plaintiffs also fail to realize the perils of their approach Jacobs raised personal jurisdietion as defense Once a
nonparty Chooses to intetVene it becomes either a party defendant or a patty plaintiff depending on the side on which it
ghooses to intertene ’ Olson \ I 1 Nate) & Pan (>1 111th 2023 VI Super 61 f; 18 (citing Bnani Fawkes
61 VI 201 221
72 (2014)) Jacobs would intervene as a paitv defendant “[Cjourts have consistently held that an inten enimg defendant may
not assut an atfirmatixe defense that has been waived by the 01 iginal defendant B) um 61 V I at 221 Iflacobs did inten ene
it xx ould intervene on same footing as the other Defendants all of “110111 \t achd the defense of personal jurisdiction by not
raising it at the earliest opportunity
87 Rmc eta] \ VI Indus Mam! Cw]? eta] 3024 V1 Supri 18
Case No SK 2002 CV 00598
\IFMORA\DLVI OPIZ\ ION
Page 15 0129
signing a self executing stipulation 1°01 dismissal Mat/uum 75 V I at 155 (collecting eases) 8‘60 also
(It; 0/ fadsomzllei Iac/momzllc Hosp Holdings Ltd P512110 82 F4th 1031 1038 (11th Ci} 2W3)
( We agree with the Sixth Clicuit s holding in Amie; son Tull} that a Rule 41(a)( l )(A)(ii) stipulation also
requiies the signature of a party that appeared but has already been removed fiom an aetion ’) [A]
stipulation tot dismissal must be signed by all parties who have appealed, which [can] ineludeH format
01 dismissed parties ” In 16 Alumina Dust Claims, 71 V1 443 456 (Supei Ct 2019) The reason why is
insttuctiV e here
7,26 ‘ ‘The canons of constiuction in statutory interpretation apply equally to the interpretation of couit
piocedmal rules Mathmm 75 V l at 158 (quoting White \ 3001mm 69 V l 749, 754 (2018))
Stipulations fox dismissal are governed by Rule 41 Sec V I R Civ P 41(a) Rule 41 piovides that a
stipulation for dismissal must be signed by all parties who have appeared 56¢ V I R Civ P
41(a)(1)(A)(ii) To be effective without court apploval, the stipulation ‘ must be signed by all parties who
have appeared,’ which includes former or dismissed parties ’ Alumina Dust Chums, 71 V I at 456 As the
United States Court of Appeals 101 the Eleventh Circuit explained in Cm) QfJacAsozzi 1/[6
there is simply no language that qualzfics the clause ‘ all parties who appealed The lack
of any WOldS restricting the subsection 5 scope suggests that a bioad leading one
Leveling all parties in a lawsuit is warranted This interpietation is supported by the fact
that the diafters qualify the tenn party 01 ‘parties elsewhere in the Federal Rules 82
F 4th at 1038 (emphasis added)
Similai reasoning may apply to Rule 5 l ike the federal rules Rule 5 0fthe Virgin Islands Rules Of CiVil
PIOCLdUlC provides that ‘ all papeis after the complaint that are filed with the court must be sewed on
way party including a mitten motion and a w1itten notice appeaianee demand or ottei of
Judgment 01 any similar paper ’ V I R Civ P 5(a)(1)(D) 3 Rule 5 uses the words “all parties eveiy
Motions that may be heatd on an (H pm re basis axe excluded from this requiiement
S1 Rose 01 (1/ l I I Indus 11am! (mp LIN] 2034 \Il super :8
(33‘. N0 8X 2002 CV 00398
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Page 16 of 29
paity and eaeh party multiple times without qualifying the party 5 status in the eaSe Rule 3 does make
one exception how wet ‘ sertiee is [not] tequiied on a pdny who is in default for failing to appear
\ l R Ch P 5(a)(2}‘
W7 By eontrast othei rules of procedure do quality the party’s status For example Rule 25 pioxides
that [alfter a party's death, if the right sought to be enforeed survives only to 01 against the remaining
patties, the action does not abate hut proceeds in favor 0t or against the Iemammg pm ms ’ V l R Civ
P 25(a)(2) (emphasis added) Similarly, Rule 27 of the Viigin Islands Rules of Appellate Pioeedure
provides that, [ilt any of the parties tail to appear to present argument the panel will heal aigument on
behalf of the remaining parties, and sanctions shall be consideied against the absent party V l R App
P 27(e) Although ‘ [L]aSL law does not address whether current parties must continue to saw e0uit
papeis on parties pieViously dlsnllSSLd hem a case[ ] ’ Jones ()8 V I at 186 n 10 Rule 3’s plain language
may requiie it The words all papers’ and eveiy party are plain theii meaning is clean No language
qualifies ox restiicts the sewiee requiiement to iemaining parties or current parties
1128 In a sense Plaintiffs ale con eat dismissed ox fonnel parties cannot be hand on all issues following
theii dismissal “MC could not for example be lieaid in opposition to a motion fox an extension oftime
But it dismissed oz fonner panties Iemain parties for some purposes and if Rule 5 xequhes seiviee of all
papa s on all parties including formei parties then Plaintiffs are mistaken They did hate to serve a copy
of their motion on llMC But even if Rule 5 does not requiie sewiee of all papeis on dismissed panics,
due process and common sense dictate that dismissed parties be notified when their dismissctl is
challenged Plaintiffs approach would add unnecessary layers of compliedtion It would also invite munds
ofreeonsidetation defendant is dismissed plaintiff seeks reconside1 ation; dismissal is vacated defendant
film on parties in detdoji: retiuiied if a pleading asserts a new Llaim for relief and when notieL of default judgment is
required under Rule 53 See VI R Civ P 5mm”)
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is reinstated and moves again to dismiss for reconsideration ofxeeonsideiation Rules of pieeedure should
be construed, administeied and employed to secure the just speedy and inexpensive detennination
ofeyery action and proueeding V l R C iv P 1 (emphasis added) This Count holds that Rule 3 iequires
senile: Ofmotions 0r Othet papers on dismissed or fennel patties it the motion or papa impacts the t01mer
patty 3 rights And it former parties must be sewed, it follows that they also have a tight to be hand
Sewing papers on parties SL1 yes a purpese giving notice, and notice would be pointless without the tight
to be heard See Hanan! \ HlilC/llllSOH 10 Me 333, 344 (1833) (‘ The light to notice necessaiily follows
from the right to be heard ’) F01 these reasons the C0u1‘t rejects Plaintitfs request to disregard and stlike
JlMC 8 response
C Motion for Reconsideration
“1129 Rule 6 4 0f the Vixgin Islands Rules ofCivil Procedure authorizes a motion 1‘01 teconsideration in
four instances when the law has Changed when new evidence becomes available, when Clear enoi must
be corrected, or when the couxt neglected to address a point Iaised prior to tuling Sec genma/ly V l R
Civ P 6 4(b)(1) (4) Reconsideration motions must be filed ‘ within 14 days after the entry of the ruling
unless the time is extended by the court Extensions will only be g1 anted for good cause show n V I R
Civ P 6 4(a) Reeonsiduation is not appropriate here
1130 Plaintiffs did not file then motion within the 14 day deadline The elder Plaintiffs want
teeonsidered was entered on March 4 2019 Plaintiffs filed their motion tel reconsideration on May 9,
2019 It is untimer which they acknowledged But Plaintiffs did not show good cause fin the two month
delay Instead they contend good cause for then delay is ‘ the dismissal of J [MC [which] is an important
development in the ease and where this Court ened in dismissing J IMC by failing to take into account
dispositiVe legal matters plesented to it ’ (P15 ’ Mot to Amend Orderto Provide f01 lnteiloe App 01 Alt
Reconsid Met 13 filed May 9 2019 (heteinaftel ‘ Atmend Mot ”) ) But Plaintiffs eonflate the showing
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Page 18 of 29
required 101 gtanting {econsideration with the showing 1equired for exeusing their delay in filing the
motion 101 leeonsideration 1ate Clean en 01 or neglecting to address axguments raiSed pxiox to a ruling may
require granting a motion to; xecomidetation but not it the motion eomes late ll’VlC timely objected to
the delay Plaintiffs ha\e not explained why they were two months late Thexefore the tequest f0]
1eeonside1ation is not pIOpell} before the Court
1131 But even it the Court wele to excuse the delay, since Plaintiffs request reconsidelation in the
alternative it is not appxopliate hete First the Court (Molloy, J ) granted Plaintith from the heneh on
January 23 2019 and in its Janualy 31 2019 Order redueing that 1ulingt0 \VIiting lean e to file a motion
out offime legarding seniee on JIMC The Court was quite Clear (See H1 g 11 37 2 9 (Ian 23 2019)
(“Okay What I'm going to do I'm going to giVe the plaintiffs an opportunity I'm going to give you ten
days fox you to file a motion f01 leave 21$ to why you should be able to file a motion {01 reconsidelation
out of time Not the motion for leeonsidelation You need to file a motion fox leave to file the motion for
Ieeonsideration out of time ’)) The 1eeonsideration the Court leferred to was reconsidelation of the
November 25, 2003 O1deI enteled November 26, 2003 that denied Plaintiffs motion for leave to serve
JIMC mute p10 lune ’ Plaintiffs W016 given until Febmary 4 2019 to file a motion lor reeonsidexation
They did not act on the Court s often So on Febmary 8 2019 JIMC filed its own motion 101
teconsidemtion ofthe January 31 2019 Older speeifieally ofthe discox e2} tequirement and dlgued that
the Court lacked authority over it beeause sen lee was untimely Plaintifls did not file a response to JIMC s
motion And aftel the Coutt g1a11tedthemotion on Ma1eh 4, 2019 and dismissed JIMC they waited neatly
two months to move fox Ieeonsideration
1132 Second the Older Plaintiffs want reconsidexed was itself based on a motion fm reeonsideration
That is, Plaintiffs me asking fox reeonsideration of reeonsideration Howevel, by not 1esponding in
Opposition to JIMC s motion for reconsideration Plaintiffs waned any objeetion to Mateh 4, 2019 Order
SI Ruse e! 11/ \ I I [1111118 \[umr Corp LIN] 2024\15upei 1%
C131. No 5X 2002 ( \ 00398
VIE\IOR 1\D1 “310103101“
Film 19 0t 29
A patty who taiis to file a response in opposition to a motion for reconsideiation wan es the light to seek
reconsideiation 1am unless the decision exceeds the scope of the initial motion C] GI 111110)) C(mm C 0
1 Dim m 0/ Columbia 704 A 2d 288 291 (D C 1997) (finding failure to oppose reconsideration
Lenstitutes waivei) Je/Ams i HPT 112g Props T1 N0 19 w 62198 2019 U S Dist LEXIS 248740
4 (S D Fla DCL 2 2019) ( It is improper for Plaintiff to seek inconsideiation based on arguments that
could have been Iaised 131101 to the ( ouit's Dismissal Ordei and Weie waived )
$133 Finally the law has not changed regaiding service of piecess no new evidence was presented and
no pIU. ious1y raised points are identified in their motion, which the Conn (M0110y J ) failed to addiess
in its March 4 2019 Order JIMC moved fox reconsideration of the Januaiy 31 2019 Order Plaintiffs did
not respond Plaintiffs now try to bootstrap order on top 0f01der and motion on top of motion pointing to
issues they raised in piior motions and filings The CQuit appieeiates the overall point they are making
that JIMC (aCCOIding to them) was part 0t ajoint ventuxe with [MC and, thus seiviee 0n IMC should hate
been imputed (according to them) on JIMC and further service in 2003 or even new (again according to
them) would not be prejudicial 0n JIMC But Plaintiffs arguments wen already considered by the Couit
(Ross J ) in its Noyeinbei 23, 2003 OldCI
1134 Mon importantly Plaintiffs overlook that Rule 52 oi the Virgin Islands Rules 0fCivi1 Piecedure
expiessly pIOVidCS that [tjhe court is not tequila! to state findings 01 conclusions when ruling on a
motion under Rule 12 Oi Rule 56 01 unless the[] iules piovide otheiwise on any othei motion ’ V I R
Civ P 52(a)(3) (emphasis added) That is according to rules promulgated by our Supreme CQuit the
Supeiim Conn can simply deny a motion without any findings or any explanation insofai as this may be
ehange in prim law the Supieme Court 0fthe Virgin Islands has sanctioned it Accwd BI OH 116 i People
74 V 1 601 612 (2021) Thus the Comt did not have provide any findings 01 analysis in its 0min And
the mason why is C1eai the Supreme C curt appl[ies] a de 11010 standaid 01 revietx to a detennination by
SI Ron eta] 1 I I Indus Wham Com er (1/ 2021VI Supt: 18
Case No SX 2002 CV 00598
311‘ \IORA‘NDLM OPINION
Page 20 0f 29
the Supetim Court that it lacked personal jurisdiction 110/10) \ Indep Blue CI 03s 56 V I 155 169
(2012) ‘06 now 0 means that the court’s inquiry is not limited to or Lonsttieted by the rewtd 1101 is any
detetence due the conclusions under review Elbev Holding C01 p 1 BlaCkRocA Fm Mgmt 2023 VI
Supe175 1113(qu0ting1n/e Infant 51262171021 49VI 452 460 (2008) {Swath} concuningD OfLOUISE
the Dial court does have discretion to atate findings and give masons in support of a mhng But it is not
tequixed when the ruling will be review ed anew on appeal vxithout any deference to those findings 01
conclusions Thus insotar as Plaintiffs complaint that the Court (Molloy, J ) cleanly etred by tailing to
consider their (0r JIMC’S) alguments it is Iejeeted and does not provide a basis for reconsideration
D Motion to Amend Order to Provide for Interlocutory Appeal
‘1135 The Court turns 110v» t0 the primary relief Plaintiffs seek amendment of the March 4 2019 OldSI
to certify it t01 interlocutory appeal pursuant to Section 33(e) of Title 4 0f the Virgin Islands Code
Plaintiffa contend that the order plesents a controlling question Yet they fail to frame that question in a
cogent toxin They meander fxom asserting that the question to be certified is whether Judge Molloy ened
on the one hand by reatfinning Judge Ross 3 1elianee on precedent from the United States Couxt of
Appeals t01 the Third Cireuit namely Pet) Heel]: \ Bolmngcl & Rat Inge; 46 F 3d 1298 (3d Cir 1995)
and on the 0the1 hand, by not following his own piecedent That is, Plaintiffs contend that Judge M0110y
erred by not following a decision he lendered in McKen la 1 Hess Oz] Lugm Islands C01p0iatzon, 70
VI 2010 (Supex Ct 2019) HoweVer as JIMC points out Maker: 10 was decided on March 6 2019 two
days aftel the March 4, 2019 OIdCI issued Courts cannot err by failing to follow future precedent
Plaintiffs may have had a basis 101 seeking reconsideration, if Mcken 1c constituted ‘ an intervening
Changein eontmllinglaw VI R Civ P 6 4(b)(1) ButMcKen 16 was not contlolling beeause deeisiom
0t tIial level courts are n0t binding on any other court including that same tlial court Be; the; \ Hess
01/ P I Cozp 60 V I 91 101 (Super Ct 2014) (collecting eases) Judges do often adhere to theil own
51 R086 era] 1 VI Indus Wumt (mp (ta! 2034 VI SUle 1%»
(ASL N0 SX 2002 CV 00598
MEMORANDLM OPINION
Page 21 of 79
decisions absent binding authority because they w ant to be consistent But trial court judges are not
binding on themselV es
H36 Plaintiffs difficulty in flaming the question to be certified discloses why theii motion it flawed
they argue that the Match 4 2019 Order misapplied the November 25 2003 Older that Judge Molloy
impioperly 1elied on’ Judge Ross S Olden, (see Amend Met 5), that Judge Molloy ened in 36V eral
ways see 1d at 7 ( In dismissing JlMC this Court erred ’), and that Judge Ross 3 Oldei failed to
provide a piopel analysis ’ Id at 10 These me all arguments in fawn 0f leveisal, not eeitifying a
controlling question for interlocutoxy appeal
$37 Certification ofa controlling question of law undei Section 33(e) of Title 4 of the Viigin Islands
Code is ‘ ‘ intended and should be reserved for Situations in which the appellate court can rule on a pure
controlling question of law w ithout having to delve beyond the surface of the record in 01 der to determine
the facts ’ ’ Elbe) Holdmg (01;) \ B/ac/uockfm Mgmt Inc , 2024 VI Super 10, 1] l l (brackets ellipsis
emphasis and citation omitted) Plaintiffs own axguments show why Section 33(e) is unaV ailing hue
(See PIS Reply 6 ( The Order to be appealed involves several controlling questions of law, one being
whether good cause exists to extend a time limit f01 seivice The 2019 Order 1e1ying on the antiquated
law from the 2003 Order applied a completely diffeient standard than this same Court and Judge applied
in the recent ease of McKen 1c ) ) These are arguments to be raised on direct appeal not as a eertified
question of puie law One pure question of law that could be certified heie one which Plaintiffs did not
request is whethei service on one member of a joint venture constitutes service on all members lt the
answer to that question is yes then Plaintiffs would be on firmer footing and certainly would haVe glounds
for seeking reconsideration
1B8 But in addition to certifying a controlling question! Section 33(0) also tequires that the question
has to materially advance the ultimate tennination of litigation ’ 4 V l C § 33(e) Plaintiffs tail to
5! Row (la! t 1 I Imlm 11am! (mp (ml 20241 \71‘Super 18
Case No S), 2002 L ‘v 00598
VILMORA\DLM OPINION
Pave 22 of 29
satistv this tequiremmt as we“ became JIMC has been dismissed C utifying thc diamtssa] tot
intelloeutory, rathu than final appeal will not terminate this litigation 1n tact it mightplolong it bu ause
JIMC would be leinstated Plaintiffs contend that if JIMC wele leinstated it is likely that the Duties
Vt ou1d attempt to facilitate a settlement due to the length of time this case has been pending (P15
Rep1y 6 ) Likelihoods me not assuranees that litigation ultimately W111 terminate
€139 1n the end Plaintitt‘; tows pledominately on Section 33(0) 5 tequirement that them be a
substantia1 g1 ound t01 dittexmce of opinion 4 V I C § 33(c) But the diffetencc of opinion v hich
mu§t be substantial contents the 12m novel or unsettled questions of law Cf Elba Holdmg Com 1
BICYC/UOC/x [m :14ng Inc , 2023 V1 Super 75 11 35 (certifying question involving exercise of consent
jurisdietion based on business legisttdtion forms) As the United States Conn of Appeals tot the Ninth
Citcuit explained
To determine if a ‘ substantial ground for difference of opinion exists courts must
examine to what extent the controlling law is unclean Courts traditionally will find that a
substantial glound f01 diffelcnce of opinion exists where the circuits are in dispute on the
question and the cou1t of appeals of the circuit has not spoken on the point, if complicated
questions misc under foreign law or ifnovcl and difficult questions of fixst impreSQion ate
pIesented Couch \ fe/escope Inc , 611 F 3d 629 633 (9th Cir 2010)) (quoting Pedetal
PIOCGdlIIC’ lauvezs fdmon § 3 212 (2010))
Locally, questions of first impression raised via a Banks analysis, see Casn/lo 1 St (101x Bane Sens
Inc , 72 V 1 528, 569 70 (Super Lt 2020) or where them is a split of authoxity among the txidl courts cf
Klein t Basczl 2023 V1 14, W 12 13 & n 7 or when: there is uncertainty about the construction of lules
0t pIOC€dUI€ Cf. Island Izle & Maible, 57 V 1 at 609 14; sec also eg Maflnum 75 V 1 at 158 59 may
present a substantial ground tut a diffexenee of opinion Howevel, ‘Just because a court is the first to rule
on a particular question or just because counsd contends that one placedent mthet than anothe1 its
controlling does not mean them is sueh a substantial dittelenee of opinion as M11 support an intulowtoxy
2113136211 ( ouch 611 F 3d at 633 (quoting 3 Fedual Placedule 10111619 {(11110}: § 3 212 (2010))
52‘ Rose 61 (1/ i I 1 [IldllS Mam] Cam (In! 2024 VI Super 18
C186 No 5X 2002 (V 00598
MLMORAINDI M OPINION
Page 23 of29
1140 That said, Plaintiffs and JIMC do have glounds for the ditfcrence of opinion hue But a party 3
shong disagreement with the Court’s ruling is not sufficient 101 then. to be a substantial giound for
difference That Settled 12m might be applied differently does not establish a substantia1 ground fox
difference of opinion ’ [d (quotation marks and citation omitted) P1aintitts’ giounds ale grounds for
diiect appea1 not interlocutory 1n tact, the very fact that Plaintiffs also sought reconsideration undermines
theix a1 gummt it them an substantial giounds for the difference of opinion on a contmlling unsettled
question of hi“ there cannot be Clem enor because elem error is established based on the existence of
eonti 011mg legal authority Plain}? Inc 1 A/Imtas 635 F Supp 3d 1087 1096 (D Nev 2022)
(zCCOIdClczib/oo/xs 1 43C No 3 12 ev 00388 2013 U S Dist LEXIS 50876 at 11 (M D Tenn Apr
9 2013) (‘ As a general matter, the plaintiffs have essentially taken the incongruous position that this court
committed '1 Clean enor of law in deciding a legal issue that even by the plaintiffs' own admission
presented a mattu 0f tiist impression in this country ) Plaintiffs motion to amend the Mandi 4, 2019
Order to certify it for interlocutmy appeal under Section 33(0) of I itle 4 01‘ the Viigin Islands Code must
be denied Cutitying the order is not appropiiate and more importantly even if the Court did certify it
the Supreme Court 0fthe Virgin Islands may not giant the application fox appeal Sec [11 Ie [c Blane 49
V1 508 523 24 (2008) (pm cmmm) ( EV en ifthe trial court enteis an Oidei allowing an interlocutmy
appeal this Court still has the discretion on whether to allow the appeal Therefoxe affmding a litigant a
civil interlocutory appeal is nevel automatic because there is no unqualified right to such an appeal ”)
E Ce: tification Undei Rule 54(b) of the Virgin Islands Rules of Civil Procedure
1141 Although the Ccurt concludes that neither xeconsideiation 1101 certification fm interlocutory appea1
are applopiiate here the Court does believe that providing some finality to this issue is appiopriate In
their February 3, 2006 request tor ruling Plaintiffs referenced the impasse legaiding Jacobs IML <13
f0110ws
$1 Row ([(t/ 1 I I Indus Wain! Cm}; (1411 2024 V1 Sum: 18
\ ase V0 8X 200’ L\ 003%
MF “110R \NDE \l OPIN ION
Page 24 0f2‘)
N0 Ordei was entet ed on the Motion fox 1 ntry ofDefault and no elari ficatiOn of this L ouit’s
Order dated November 23, 2003 has ever been issued Plaintiffs and Defendants have
(11 gued the actual findings of the November 25 2003 Order in the briefs mentioned abox e
Plaintiffs feel that Judge Ross has said that JIMC “ as sened though its partnership with
EMC (P15 Rea t01 Rulings D filed Feb 3 2006 )
Plaintitts earlier motion tor entry of default made the same representation that lambs had tailed t0
ans“ er and thus has ignmed this Court 3 Older considering them sen ed along with its partnei IMC as of
September 27, 2002 01 as of the date of this Court’s Order dated Novemhet 25 2003 (HS ’ Mot 1°01
Entry of Detauit ZXgainst Def Jacobs Indus Maint Corp 2 filed Jan 14 2004)
7142 Admittedly the Nos emer 25 Order is somewhat ambiguous because the Court denied Plaintiifs
motion to setve Jacobs out of time while also acknov» [edging that serviee on one party is service on all ’
(Older 4 entered NOV 26 2003 (citing 26 V I C § 3(0) ) The Court also stated that ‘ n0 retutn ofserviee
1‘01 JIMC can be found ’ Id at 2 3 It is unclear whether the C curt was ieterring to the court 5 own files
01 t0 the Plaintiffs files since Plaintiffs had represented in their motion that they looked but did not find
a teturn 0t seniee and s0 leached out to the p10LLbS SL1 ver The court file does ieflect sewice 0n JlML
beeausc Plaintiffs had filed pioot 0f SLerCC the SuperiOI Court on September 15 September 19, and
October 7 2003, showing service was etfected on Jacobs [ML on Septembei 1 1 2003 Thus the question
a as whethei t0 giVe effect to the untimely sewiee that had a1ready occurred lather than gtant mete time
to seive However that is not the reliefPlaintitfs tequested
Q1143 What’s more none of this was brought to the Court 5 attention, not when the Court (Ross J )
issued its decision in N0\ ember 2003 01 after the Court (Molloy J ) gianted Plaintiffs leave in Januaiy
2019 to seek teconsideration 0f the Novembei 23 2003 Oidei out of time Instead, Plaintiffs Claim clear
emu in the Maid) 4, 2019 Older vacating the January 31 2019 Order in part and dismissing JIMC
Plaintitts contend Judge Molloy should have addiessed the meiits 0t JIMC s Octobei 14 ’003 motion to
dismiss and (impoitantly to them) theii opposition, including then at guinent that Jacobs and lMC were a
5t Rosa LIN] 1 I I Indus Mann Cory) w (1/ 3024 1,! Superlft
{Ase N0 SX 7007 CV 00598
MEMORAVDL M OPINION
Page 25 of 29
joint ventuie a point this CQuit believes Jacobs suminetly iefuted in a footnote in its reply Plaintiffs ate
eorieet that the Court (Molloy, 3 ) did not piovide any analysis OfJIMC s motion to dismiss in the Mareh
4 2019 Quiet 1 he Order also did not explicitly grant JIMC s motion linplieitly, howu U the Match 4
7019 Oldtl did giant JIMC s motion to dismiss because the Coutt the Court heard argument on JIMC s
motion on January 23 2019 and then dismissed JIMC for laek personal jurisdiction which was one the
grounds JIMC Iaised in 11: motion All of the issues Plaintiffs raise in then motion are more appiopiiate
for direct, not interloeutmy appeal
1144 Rule 54(b) 01t the Virgin Islands Rules of Civil Proceduie is modeled after Rule 54(b) tifthe Fedei 211
Rules of Civil Pioeeclure and thus fedelal precedent interpreting it is instruetive See Slack 1 Slack 69
V 1 567 573 (2018) The Supreme Court 0fthe United States in Cm {sz Wizglzz‘ (011901012021 1 (7010} a!
Elem 1C Company 446 U S 1 (1980) ‘ outlined the steps to be followed in making deteiminations undei
Rule 54(b) [d at 7 (citing Seals Roebuck & Co v Made) 351 U S 427 (1956)) The trial ‘ noun must
first determine that it is dealing uith a final judgment ’ [F]inal in the sense that it is an ultimate
disposition ofan individual claim enteied in the course ofa multiple Claims action ’Id (quoting Made),
351 U S at 436) Next the court must go on to detennine whether them is anyjust mason 101 delay Not
all final judgments on individual claims should be immediately appealable even if they ate in some sense
sepaiable from the remaining unresolved claims [(1 at 8 Lastly, the court must take into account judicial
administiative interests as well as the equities involved“ including by “consideling sueh faetors as
whether the claims undei review VV ere separable from the otheis temaining to be adjudicated and whethei
the natuie of the claims already determined was such that no appellate court would have to decide the
same issues more than once CV en it there wele subsequent appeal ” 1d The Court finds the Cm m 9 W; 1gb!
fawn.) instiueti‘ (3 here
“1145 1 he dismissal of JlMC is final in the sense that it disposed of all ofPlaintiffs Claims against JIMC
8‘! Rose (Ia! \ I I Indus Wain! Cmp Lch/ -024 VI Super 18
Case No SK 2002 (V 00598
MEMORAVDUVI OPIVXOIV
Page 26 of 29
Theie also is no Just reason to delay enteiing judgment on JIMC’s dismissal Plaintiffs’ claims against
[MC and HOVENSA teinain and impoxtantly will continue without JIMC However, Plaintiffs allege
that JIMC is an essential part) as it is the defendant who employed Plaintiffs and then teimitiated them
in Violation of 24 V l C § 471 hi cached their duty of good faith and fair dealing and committed fraud ’
(Amend Mot l3 ) They also argued, albeit in fayor 0f interlocutory appeal, that JlMC ’3 presence or
absence would have a material impact on the outcome of this case To make the parties wait until Plaintitfs’
claims against IMC and HOVENSA are IESOlV€d before they can appeal the dismissal of JIMC would be
inefficient and, more importantly, delay this mattei even further If Plaintiffs prey ailed at tiial and the
dismissal of JHle weie later ieVeised and iemanded it would place all the patties in a Lomplieated
position as the liability, ifany, 0t JIMC would not hay e been assessed by thejury Viigin Islands law does
not permitjuries to assess the liability ofnonparties 5ch W01 Id F1 65/? MAM LLC 1 Palezmo 74 V l 453
463 64 (2021) (‘ While the statute does not expressly state that apportionment cannot occur with iespeet
to non defendants, the Legislatme is not requiied to include such an affirmative statement; 1athe1 the
delibeiate use of the nanowei term defendant evinces a legislative intent to allow allocation oftault among
only the parties to a lawsuit not against nonparties (ellipsis quotation marks footnote and citations
omitted» M0160V€1 leveising JIMC s dismissal after trial would iequiie a second tiial 0n the same claims
since Plaintiffs asserted the same claims against all three Defendants On other hand It as Plaintiffs
contend, JIMC‘ is an essential ’ party and ifJIIVIC s dismissal is affirmed on appeal Plaintiffs might be
more inclined to settle with lMC and HOVENSA Waiting until all claims against HOVENSA and lMC
are IGSOlVCCl to challenge JlMC’s dismissal could disincentivize settlement After all Plaintiffs can hold
out hope that the dismissal of an ‘ essential party would be reveised
1(46 Certifying the dismissal ofJIML as final now ensuie that JIMC s dismissal can be addressed eaily
early enough toi JIML to be reinstatedt it the dismissal is reveised 01 for the parties to iethink stiategy
SI Rme (I (1/ \ VI Indus Ham! Com 6/ :1] 2024 V1 51mm 18
Case No SX 2002 LV 00599
MEMORANDI \I OPINION
Page 27 of 29
ifthe dismissal is affirmed 1t piesents a discrete issue that is sepaiatt, fiom the metits and will not eause
a subsequent appeal on the same issue Additionally, this action was commenced as a putatix e class action,
whieh adds another layei 0t eomplexity Waiting until the claims against HO\ ENSA and 1MC have been
determined to reinstate 1 1MC on temand could require reissuing notice to the class and a second
opportunity to opt out And it the Court weie to conclude that a class cannot be certified the putatiVe class
members would haxe to be given time to intervene or to file sepaiate lawsuits and all the individual
lawsuits would inheiit JlMC s dismissal Under these Circumstances, the Cou1t believes that there is no
Just teason to delay certifying the Match 4, 2019 Ordei’s dismissal oleMC as final
$47 One final point must be addtessed The Staff Master informally reported to the Court that duiing
a hearing held on February 9 2024 where the palties discussed the status of the case as well as pending
motions JlMC had argued against finali/ing the March 4 2019 Orde1 undei Rule 54(b) 7 countering that
7 The Supreme Court of the Virgin Islands has held that before taking any significant action ma spam [elouit[s] must
first give the parties a Chance to respond Cunhbean tum Man 0/ S! C 0n 1 Mol/m 73 V I 329 334 (Super Ct 2020)
(citing Hugh/et i Gm ’t of flu 1 I 61 V I 323 (2014)) Here the Staff Master had asked the patties to wine to the Pebmary
9 2024 hearing prepared to discuss the propriety of the Court treating Plaintiffs motion to amend or for reeonsidexation as a
motion to certify JIMC s dismissal as final under Rule 54(1)) The Staff Master had asked the raised the same issue during an
Apiil 1 2022 hearing and followed up with an Order dated and entered April 4 2022 to schedule this case and another case
Comma]! e! (1/ i Vugm Islands Indusnm/ Maintenance (01pm anon er a] Case No SX 2002 CV 00641 for oral argument
on April 29 2022 on wheter Plaintith motion should be construed under Rule 54(b) The April 29 2022 healing was
rescheduled to June 3 2022 because ofa conflitt with administrative leave granted to all employees for Carnix al in St Thomas
District The June 3 2022 hearing also did not go forward because this Court stayed all proceedings because ofthe HONX
Inc bankruptcy proceeding Cf [)1 IL (ennui Cases Um/u a Discietzonzui Bank) Sim , 2023 VI Supei 74 Onee the stay was
lifted the Staff Mastei returned to the question of Rule 54(b) intending to addIeSs it by way of recommendation as a matter
pertinent to the proceedings[ j [n 1e 4111/) {01 the Cleanon & 4p}; 1 0/514]? Music); Position [0) (lie Supu Ct (1/1/19 1 1
Admin Order No 2021 0012 2021 VI Supreme I PXIS 14 *3 (V I Aug 12 2021) see also id at *3 4 (auth01izin0 staff
master to [c]onduct legal analysis of patties' motions or othu submissions and make reeommended findings of facts and
conclusions of law or othei repons[ ]’ ) The Court elected to address Plaintiffs motion, and Rule 54(b) itself after the Staff
Master s informal ieport See [(1 at *3 (authorizing formal and informal ieeommendations and repotts to the judge regarding
any mattei pertinent to the proceedings[ ] ’) 58L also eg Intugmplz C011) i [me] Com 253 F 3d 695 699 (Fed Cit 2001)
( Intergraph also argues that the district court had no authority sun 31201110 to enterjudgment under Rule 54(b) That is incorrect
Wheter to allow an inteiim appeal is best decided by the trial court (quoting Stale Tlezzsmer 1 Ball} 168 P 3d 8 14 (1 1th
Cir 1999)) accmd Balm 168 F 3d at 14 ( The district court sua sgontgor on motion could haVe Certified that there \\ as no
reason {01 delav and directed the entry of tinal judgment on Plaintiffs complaint and Defendants counterelaim f0] tortious
interferenee ) Gumani 4 I DupomHosp f0} Clnld/en No 08 0228 2009U S Dist LEXIS 77587 *10(1? D Pa Aug 28
2009) ( As with certification under§ 1292(b) a district untrt may sua sponte diieet entry offinaljudgment undei Fedexal Rule
ofCi\il Procedure 54th) )
91 Rust (21 (1/ 1 I I lmlm 11am] (mp (10/ 3024 V1 Supei 18
L the l\:0 S\ 3002 CV 00598
\IL VIORAINDL M OPII\IOI\
Pave 28 0f ’9
federal eourts unanimousl y hold that unsaved defendants are not parties fin puiposes 01 Rule 54(1)) JIMC
is e011eet 5w C(zmbique Haldmgs (rip Inc 1 Fed Ins Co 489 F 3d 1356 1360 (D C 2007)( [01m
sister e11 euits t1 eat an impiopeily sewed defendant as net e1 having been before the disillet eOUIt for
purposes 01 Rule 54(b) Light eiieuits have expressly adopted this View Mme has adopted a eontiary
inteipretation ‘ (braekets citations, and footnotes omitted) But J lMC misundeistands the eontext
3148 Fedeial eouits treat unserved defendants as nonparties When detennining whether and if 30 v» hen
a final ordei was entered for sewed defendants Ste 1d at 1361 ( [W]hen a distiiet eouit dismisses a suit
as to all served defendants and only an unsaved defendant remains theie is geneially no mason to
antieipate additional pioeeedings before the disttict court Indeed unless the pioeedural requiiements 01
effectiVe service of process hax e been satisfied the court lacks personal jurisdietion to act with respeet to
that defendant at all ) Here if the C Quit had not dismissed Jacobs and adjudicated Plaintiff? elaims
against lMC and HOVENSA x1 ithout addlessing Jaeobs lMC 3 status. that might constitute a judgment
adjudieating all the Claime and all the parties' rights and liabilities ”V l R C iv P 54(1)) Assuming Virgin
Islands courts were to follow tcdeial preeedent heie the time to appeal could run from the date of entry
of the orders adjudicating the claims against HOVENSA and [MC eVen though Plaintiffs motion to
amend or for Ieeonsideration remained pending But that is not the situation here Instead the Court is
ceitifying as final a dismissal for laek 01 personal jurisdiction, which courts have heaid 0n diieet appeal
See eg Dc lamem Magnflcence Caiizus Inc 654 F 2d 280 282 (3d Cir 1981) see also Gum“ 1
( m Q/Mmot 529 N W 2d 868 (N D 1995) (eoneluding Rule 54(1)) eeitifieation ofdismissal 101 untimely
sewice was not warianted as eXeeption to final judgment) J lMC 9 objeetions therefore are overitiled
III CONCLUSION
$349 F01 the reasons stated above the Couit finds that Plaintiffs did not shtm good CEILle and thus theii
motion for an extension 01 time will be denied and theii reply to [MC 5 response has been diSIegaided
SI RUXL 01 (1/ \ I I 112111“ Waltz! (01/) till] 2024 VI Supex 18
L 15: 1M) 5X 2002 (V 00398
MEMORANDUM OPINION
Page 29 0f 29
The Couxt also overrulcs Plaintiffs’ Objections to JIMC having filed a Iesponse in opposition to that
motion to amend 01 for reconsideration Hating considered the dlguments raised in that motion, the Cou1t
will deny it Reconsiduation is not propel hexe Certifying the dismissal oleMC f01 interlocutory appeal
is also impmpel HOW ever, the Court does agree with Plaintiffs ()VCIall point that appellate review 01
HMC s dismigsal is appropliate For that reason the CQua will sua sponte certify the Match 4 2019 Ordel
dismissing JIMC for lack of jtuisdiction and failure to timely serve as final undel Rule 54(b) of the Virgin
Islands Rules 01‘ C ivil Ploceduxe An appropriate order follows
DOVE this Qt" 5“
d3) of April 2024
HAROLD W L WILLOCKS
ATTEST Administrative Judge 01‘ the Superior Court
Tamara Charles
Clerk 0f the Court
W 4::
Ccult lerk
Dated Q/HM
SUPERIOR COURT OF THE VIRGIN lSI ANDS
DI\ [SIGN OF ST CROIX
J[ LIAN Sr ROSE, ViReIME GEORGE; Ru MOM) Case No SX 2002 CV 00598
ALLEYNE; him m BARRIOS; Am) OTHER PERSONS
T00 NL\IEROLs r0 Mum», A C1 ASS ACTION Action for Damages
PLAINTIFFS, Complex Litigation DiVision
V Jul y Trial Demanded
VIRGIN ISLANDS INDLSTRIAL MAIN TEINA\CP
CORPORA rim (IMC), J XCOBS INDLSTRIAI
MAINTE) XNCL CORPORM ION (JIMC),
HOVENSA, LLC, HOVIC; AM) AMERADA HEss
CORPORATION,
DEFENDAsz '
ORDER
AND NOW, for the reasons stated in the accompanying Memorandum Opinion, it is hereby
ORDERED that the First Motion for Extension ofTime filed by Plaintiffs on June 24 2019 is DENIED
and the Reply filed by Plaintiffs on July 8 2009 is DISREGARDED It is fuithei ORDERED that the
Motion to Amend Ordel t0 Piovide for lnterlocutory Appeal 0r Alternatively Motion to Reconsidei filed
by Plaintiffs on May 9 2020 is DENIED However the Court will by separate ordei certify the Ordei
dated and enteied March 4 2019 as final pei Rule 54(b) 0fthe Virgin Islands Rules Of Civil Piecedure
DONF and so ORDERED this 9 I day of April 2024
/
ATTEST ( ///// 1
RA CHARLES ‘ 1/ w 4/ 7/ X 4
TWA
CLER F C0
unT/ HAROLD L W11 LOCKS \
/7 Administrative Judge of the Superior Court
141/ ”“4
OURT LERK
ED. #wgzuw
‘ Although the caption was amended when the Second Amended Complaint Vt as filed the C 0u1t has ietained the prior caption
to avoid contusion since the amendment [emoved Jaeobs Industiial Maintenance Lomorition and its dismissal is the focus of
motions addiessed herein