SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
VERNAL EZEKIEL HERBERT
Civil N0 SX 19 CV 629
PLAINTIFF,
ACTION FOR DAMAGES
V
NATIONAL INDUSTRIAL SERVICES, LLC, JURY TRIAL DEMANDED
DEFENDANT CITE AS 2022 v1 SUPER A
Appearances
Eugenio W A Geigel Simounet, Esq
GS Law Offices P C
St Croix, U S Virgin Islands
1"or Plamttff
Gaylin Vogel
Kevin F D’Amour, P C
St Thomas, U S Virgin Islands
For Defiandant
MEMORANDUM OPINION AND ORDER
WILLOCKS Presiding Judge
1] 1 THIS MATTER came before the Court on Defendant National Industrial Services, LLC’s
(hereinafter ‘Defendant’) motion to dismiss or in the alternative, motion to stay pending
arbitration and motion to dismiss Count I for failure to state a claim upon which relief can be
granted, filed on January 18, 2022 ' In response, Plaintiff Vernal Ezekiel Herbert (hereinafter
“Plaintiff’) filed an opposition, and Defendant filed a reply thereto
' This motion was joined with Defendant s motion to set aside entry of default and motion to dismiss or in the
alternative motion to stay, filed on January I8 7022?. Defendant 5 January [8 2022 motion actually consisted of three
separate motions (i) a motion to set aside entry of default, (ii) a motion to dismiss or in the alternative, motion to stay
pending arbitration and (iii) a motion to dismiss Count I for failure to state a claim upon which relief can be granted
On February 19 2022, the Court entered an order whereby the Court disposed of Defendant s motion to set aside entry
of default Thus the Court will address the motion to dismiss or in the alternative motion to stay pending arbitration,
Herbert v National Industrial Services LLC
SX 19 CV 629
Memorandum Opinion and Order 2022 VI SUPER ZS ‘
Page 2 of 8
BACKGROUND:
1] 2 On December 17 2019, Plaintiff filed a complaint against Defendant in connection with
Plaintiff’s employment with Defendant In his complaint, Plaintiff alleged the following cause of
action Count I for civil rights violations, Count [I for wrongful discharge, and Count 111 for
punitive damages 3 (Compl 1 2)
"3 On January 18 2022, Defendant filed this instant motion to dismiss or in the alternative,
motion to stay
DISCUSSION
1 Motion to Dismiss or in the Alternative, Motion to Stay Pending Arbitration
1M In its motion Defendant argued that ‘[t]his Court must dismiss the Complaint in favor of
arbitration as the claims are governed by the Arbitration Agreement” or “[i[n the alternative,
issue a stay pending arbitration ” (Motion, p 5) Defendant made the following assertions in
support of its argument (i) “As part of [Plaintiff’s] employment paperwork, he signed an
arbitration agreement where he agreed to arbitrate all disputes related to his employment ”
(Motion, p 2); (ii) ‘The arbitration agreement is a valid contract ” (Id at p 4), (iii) The
arbitration agreement specifically states it shall govern all disputes or controversies arising out of
[sic] related to the relationship between [Plaintiff] and [Defendant], and any termination of his
employment with [Defendant] ’ (Id , at pp 4 5); and (iv) “The contract also touches on interstate
and the motion to dismiss Count I for failure to state a claim upon which relief can be granted together in this
memorandum opinion and order
2 A thorough description of the procedural background is provided in the Court 5 February I9 2022 order
3 The Court must note that in Bertrand v Mystic Granite & Marble Inc , the Virgin Islands Supreme Court affirmed
the Superior Court 5 ruling that “a request for punitive damages is not an independent cause of action 63 V I 772
784 n 6 (V1 2015) see also Der Weerv Hess 011 VI Corp 60 V I 9| 95 n l (VI Super Ct 2014)( Although
labeled as a ‘claim for punitive damages in the complaint punitive damages is not a separate cause of action but
rather a demand for a certain type of damages ”)
Herbert v Natlonal Industrial Servzces LL(
SX [9 CV 629
Memorandum Opinion and Order 2022 VI SUPER Zfi
Page 3 of8
The Limetree Bay refinery exports oil out of the territory " (Id at p 5 ) A copy of a document
titled Arbitration Policy and DiSpute Resolution Program,” dated August 29, 2017, executed by
Plaintiff and Defendant was attached as an exhibit to the motion
1: 5 In his opposition Plaintiff argued that the Court should deny Defendant’s motion Plaintiff
indicated that he “incorporates and adopts by references the arguments contained in [his motion
for relief from the February 19, 2022 order],’ (Opp , p 2), and made the following assertion in
support of his argument ‘The Defendant after having defaulted and the facts claimed having been
deemed admitted, Defendant has waived its defenses including the claim for arbitration clause
(request for stay) (Id at pp 3 4)
f6 In its reply, Defendant reiterated his argument that this matter is subject to the Arbitration
Agreement (Reply at p 3 )
A Standard of Review
1] 7 In Whyte v Bockmo, the Virgin Islands Supreme Court determined that Federal Arbitration
Act (hereinafter “FAA”) applies to the Virgin Islands but the “party seeking to compel arbitration
must not only show that an agreement to arbitrate exists, but also show that the contract evidences
an interstate nexus ” 69 V I 749, 760 61 (V I 2018) (“Wher 11”) “In ruling on a motion to compel
arbitration, the court must first determine whether the parties agreed to arbitrate and then whether
they agreed to arbitrate the claims at issue, unless they agreed otherwise,” Cornwall v V] Indus
Mam! Corp 71 V I 203 224 (Super Ct Aug 26 2019) (citing Whyte II 69 V I at 7630 ( [I]n
the absence of an agreement to the contrary [courts] are limited to determining which
subjects the parties have agreed to arbitrate, according to their contract ”) (quotation marks,
brackets, ellipsis and citations omitted» “‘General principles of contract apply’ to these
determinations ” Id (quoting Whyte II, 69 V I at 764) Once the court concludes that the parties
Herbertv National Industrial Services LLC
8X 19 CV 629
Memorandum Opinion and Order 2022 VI SUPER 2 I
Page 4 of 8
agreed to arbitrate some or all of the claims at issue, assuming the parties did not leave the
arbitrability issue to the arbitrator, then the court must determine whether the parties’ contract has
an interstate nexus See Id As the Whyte II court explained, “the burden on the compelling party
to show that a contract evidences an interstate nexus is relatively low” and “for an interstate nexus
to exist, the parties' agreement need not be m interstate commerce nor have a substantzal effect on
interstate commerce ” 69 V I at 761 (citations omitted) (emphasis in original) In other words,
“the contract between the parties need only ‘affect[] interstate commerce,’ such as where the
economic activities of at least one of the parties demonstrates a nexus to interstate commerce ” Id
(citations omitted) “It is apparent then, that the FAA applies to the Virgin Islands when an
interstate nexus can be demonstrated ” Ayala v World Fresh Mk! , No SX 20 CV 728, 2021 V I
LEXIS 53 at *2 (V I Super Ct Feb 10 2021)
B Analysis
1 Whether the FAA is Applicable
a Agreement to Arbitrate
'8 The document titled ‘ Arbitration Policy and Dispute Resolution Program” (hereinafter
Arbitration Agreement’ ) provides in relevant part
During the term of your employment with National Industrial Services, LLC, and any of
its subsidiaries, successor or assigns (collectively and individually, the “Company”),
differences may arise between the Company or Third Party beneficiaries (defined below)
and you in relation to your employment or your presence at any Company or Third Party
Beneficiaries work site You agree that all disputes between you and the Company and
Third Party Beneficiaries will be decided by arbitration
This arbitration policy and dispute resolution program extends to disputes with or claims
against the Company or Third Party Beneficiaries and survive the termination of any
employment, application for employment, or other change in employment or the
Herberlv National Industrial Serwces LLC
SX l9 CV 629 1
Memorandum Opinion and Order 2022 VI SUPER I
Page 5 of 8
termination of any contract for the performance of services by any non employee person
or entity for the Company
By signing below you acknowledge that you understand the foregoing arbitration
policy and dispute resolution program, and agree to be bound by, and voluntarily
participate, in the arbitration policy and dispute resolution program, and that such
acknowledgement and agreement is a condition of your application and/or
employment (or continued employment) with the Company and of being permitted
on the premises of Limetree Bay Terminals, LLC
(Motion, Exhibit 2 Arbitration Agreement)
The Arbitration Agreement was executed by Plaintiff, Defendant, and a witness Based on the
foregoing, the Court finds that an agreement to arbitrate exists between Plaintiff and Defendant
b Interstate Commerce
1| 9 In its motion, Defendant alleged that ‘[t]he Limetree Bay refinery exports oil out of the
territory, it is not a simple domestic production for domestic operation (Motion, p 5 ) While the
Court finds that Limetree Bay Terminals, LLC, while operating the Limetree Bay oil refinery
engages in interstate commerce, Defendant never clarified its connection with Limetree Bay
refinery or Limetree Bay Terminals, LLC, or explained its own interstate nexus Nevertheless, the
Arbitration Agreement indicated that Limetree Bay Terminals LLC is a client of Defendant and
that the Arbitration Agreement was executed in connection with Plaintiff‘s ‘ application and/or
employment (or continued employment) with [Defendant] and of being permitted on the premises
of Limetree Bay Terminals, LLC ” (Motion, Exhibit 2 Arbitration Agreement ) As such the Court
finds that the Arbitration Agreement evidences an interstate nexus, as even the slightest nexus is
sufficient See Whyte 1] 69 V I at 761 ( the burden on the compelling party to show that a contract
evidences an interstate nexus is relatively low” and “for an interstate nexus to exist, the parties'
agreement need not be m interstate commerce nor have a substantial effect on interstate
Herbal v National Industrial Services LLC
33:332.: Opinion and Order 2022 VI SUPER g,
Page 6 of 8
commerce”) (citations omitted) (emphasis in original), see also Hendrzcks v Pinnacle Serwces
LLC, 72 V I 630 (finding that in reviewing a motion for summary Judgment that the parties should
not have to file another brief regarding the interstate nature of the business due to further briefing
being a waste ofjudicial resources)
1] 10 Based on the foregoing, the FAA is applicable in this instance and this matter should be
arbitrated
2 Whether This Matter Should be Dismissed or Stayed Pending Arbitration
' 11 The Court must now determine whether this matter should be dismissed or stayed pending
arbitration In its motion, Defendant argued that “[t]he Court must dismiss the Complaint in favor
of arbitration as the claims are governed by the Arbitration Agreement ” However, Defendant’s
argument that this matter must be dismissed was perfunctory and made without supporting
authority See V I R Civ P ll(b)(5) (“By presenting to the court a pleading, written motion, or
other paper whether by signing filing, submitting, or later advocating it an attorney or self
represented party certifies that to the best of the person's knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances (5) that the applicable Virgin
Islands law has been cited, including authority for and against the positions being advocated by
the party ”); see also, The Llrwm Corp v Universal 011 Prods C0 , 69 V I 380, 387 (V I Super
Ct Sept 28, 2018) (‘ [I]t is not the Court's job to research and construct legal arguments open to
parties In order to develop a legal argument effectively, the facts at issue must be bolstered by
relevant legal authority; a perfunctory and undeveloped assertion is inadequate ’) (internal
quotation marks and citation omitted) The Court declines to make such argument for
Defendant See Joseph v Joseph 2015 V I LEXIS 43 *5 (V I Super Ct Apr 23 2015) ( [I]n
general the Court will not make a movant's arguments for him when he has failed to do so ”) As
He! her! v National Industrial Services LLC
SX 19 CV 629
Memorandum Opinion and Order 2022 VI SUPER 2: l
Page 7 of 8
such, the Court will deny the motion to dismiss pending arbitration and grant the motion to stay
pending arbitration and stay this matter pending the completion of arbitration 4
11 Motion to Dismiss Count I for Failure to State a Claim Upon Which Relief can be
Granted
1} 12 In light of the Court 3 finding that this matter should be arbitrated and the fact that parties
explicitly agreed in the Arbitration Agreement that “[t]he arbitrator shall have authority to hear
and rule on a motion to dismiss and/or a motion for summary judgment by any patty,”5 the Court
finds that the arbitrator should decide on Defendant’s motion to dismiss Count I for failure to state
a claim upon which relief can be granted As such, the Court will strike this motion and if
Defendant wishes to pursue this motion, he can re file it before the arbitrator
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that Defendant’s motion to dismiss or in the alternative, motion to stay
pending arbitration, filed on January 18, 2022, is DENIED as to the motion to dismiss pending
arbitration and GRANTED as to the motion to stay pending arbitration The parties shall
4 Interestingly Defendant never pointed out that under the Arbitration Agreement, the parties had agreed that all
substantive and procedural arbitrability shall be decided by arbitration More specifically, the Arbitration Agreement
provides
The arbitrator shall have authority to hear and rule on a motion to dismiss and’or a motion for summary
judgment by any party The arbitrator shall also arbitrate the issue of arbitrability of any claim All matters
of substantive and procedural arbitrability shall be decided by arbitration
(Motion, Exhibit 2 Arbitration Agreement)
As such until Defendant or Plaintiff advised the Court that they had arbitrated as to the procedural issue of whether
this matter should be dismissed or stayed pending arbitration and that the arbitrator decided that dismissal of this
matter is appropriate this matter will be stayed pending arbitration See eg Smith, 2021 V l LEXIS 3 at ”9 l0
(“But if the agreement contains a delegation clause, or a provision agreeing that the arbitrator and not the court will
decide both substantive and procedural arbitrability issues, then all questions concerning arbitration are for the
arbitrator to decide ") (citing Wher ll, 69 V I at 763 (“‘[l]n the absence of an agreement to the contrary, issues of
substantive arbitrability are for a court to decide and issues of procedural arbitrability are for the arbitrators to
decide ’ (emphasis added) (citation and ellipsis omitted»
‘ See [d
Herbert v National Industrial Services LLC
SX 19 CV 629
Memorandum Opinion and Order 2022 VI SUPER 1%
Page 8 of 8
ARBITRATE this matter and this matter shall be STAYED PENDING ARBITRATION It is
further
ORDERED that Defendant’s motion to dismiss Count I for failure to state a claim upon
which relief can be granted, filed on January 18, 2022, shall be and is hereby STRICKEN It is
further
ORDERED that within sixty (60) days from the date of entry of this
Memorandum Opinion Order, the parties shall initiate arbitration proceedings, and that, within
five (5) days from the date of initiation of arbitration, Parties shall file a notice advising the
Court that the parties have initiated arbitration proceedings It is further
ORDERED that arbitration shall be completed on or before September 31, 2021 And it
is further
ORDERED that, within fifteen (15) days from the date of completion of arbitration,
the parties shall file a joint notice with the Court advising the Court that the parties have completed
arbitration and whether this conflict has been completely resolved
DONE and so ORDERED this ‘5; day of March 2022
ATTEST
Tamara Charles
?gétg aM
HAROLD W L WILLOCKS
Clerk of the Coun Presiding Judge of the Superior Court
By $4??? /W
Court Clerk Wear
Dated 5//&/JQL
SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
VERNAL EZEKIEL HERBERT,
PLAINTIFF, CIVIl No SX 19 CV 629
V ACTION FOR DAMAGES
NATIONAL INDUSTRIAL SERVICES, LLC, JURY TRIAL DEMANDED
DEFENDANT
CITE AS 2022 v1 SUPER $0
Appearances
Eugenio W A Geigel Simounet, Esq
GS Law Offices P C
St Croix U S Virgin Islands
For Plamnfi‘
Gaylin Vogel
Kevin F D Amour P C
St Thomas U S Virgin Islands
For Defendant
MEMORANDUM OPINION AND ORDER
WILLOCKS, Presiding Judge
(|[ l THIS MATTER came before the Court on Plaintiff Vernal Ezekiel Herbert s (hereinafter
‘ Plaintiff ) motion for relief from the February 19 2022 order pursuant to Rule 59 and Rule 60 of
the Virgin Islands Rules of Civil Procedure (hereinafter Rule 59 and ‘ Rule 60 ) filed on March
4, 2022 ' On March 8 2022 Defendant National Industrial Services LLC s (hereinafter
Defendant ) filed an opposition
' Rule 59(e) prmides that in] motion to alter or amend ajudgment must be filed no later than 28 days alter the entry
of the judgment VI R Clv P 59(e) Rule 60 provides that lo]n motion and just terms the court may when, a
party or IIS legal representative lrom a hnal judgment order or proceeding for the tollowing reasons (I) mistake
inadvertence surprise or exeusable neglect (2) newly discovered evidence that could not with reasonable diligence
have been discovered in time to move for a new trial under Rule 59th) (3) traud (whether in a form previously called
intrinsic or extrinsic) misrepresentation or misconduct by an opposing party (4) the judgment is void (5) the
judgment has been satisfied released or discharged, it is based on an earlier judgment that has been reversed or
vacated or applying it prospectively is no longer equitable 0r (6) any other reason that justifies reliel However the
February I9 2022 order was not a final judgment or order because it is not a decree or an order from which an appeal
lies and it did not end the litigation on the merits or disposes of the entire case See V I R Ctv P 54(a) (‘ ‘Judgmen! as
used in these rules includes a decree and any order horn which an appeal lies ), see also VI Consen anon Soc ) v
Golden Resorts LLLP 2010 V I Supreme LEXIS 21 at *9 (V I 2010) ( a final judgment decision or order is one
that ends the litigation on the merits and leaves nothing to do but execute the judgment ) (internal quotation marks
and citation omitted) Cartbbeau Healtlmaxs [m v James 55 V l 691 697 n 3 (201 l)( In Dans t Allted Mortgage
HereIr v National Industrial Services LLC
SX 19 CV 629
Memorandum Opinion and Order 2022 VI SUPER $0
Page 2 01 7
BACKGROUND
(|[ 2 On January 18 2022 Defendant filed a motion to set aside entry of default and motion to
dismiss or in the alternative motion to stay On February 10 2022, Plaintiff filed a motion
requesting an extension of time to oppose Defendant 5 January 18 2022 motion 7
(II 3 On February 19 2022 entered an order whereby the Court noted that under Rule 6 l of
the Virgin Islands Rules of Civil Procedure [n]othing herein shall prohibit the court from ruling
without a response or reply when deemed appropriate V I R Civ P Rule 6 l(f)(6) and ordered
inter alia that Defendant s motion to set aside entry of default and motion to dismiss or in the
alternative motion to stay filed on January 18 2022 is GRANTED as to Defendant s motion to
set aside entry of default and that the default entered against Defendant on July 23 2021 shall
be and is hereby VACATED (Feb 19 2022 Order p 5) (emphasis in original ) In the February
19 2022 the Court explained
a Standard of Review
Rule 55 of the Virgin Islands Rules of Civil Procedure provides that ‘ [w]hen a party
against whom a judgment for affirmative relief is sought has failed to plead or otherwise
defend, and that failure is shown by affidavit or otherwise the court or the clerk must enter
the party 5 default and that [t]he court may set aside an entry of default for good cause
and it may set aside a final default judgment under Rule 60(b) VI R Civ P 55(a) (c)
When default judgment has not yet been entered an even more liberal standard [is]
employed when reviewing a Motion to set aside default because it is more appropriate to
Capital Corp 53 VI 490[ 498 99] (2010) we held that atrial courts order that explicitly disposes 01 some but not
all claims may be considered a final order when it implicitly rules on the remaining claims renders the remaining
claims moot or the remaining claims were never properly betore the trial court because of a procedural or
jurisdictional defect ) To the contrary the February 19 2022 order anticipated that the litigation would re start to
wit Detendant has now appeared in the matter and tiled a motion to dismiss The fact that Plaintiti expressly evoked
Rule 59 and Rule 60 does not in and of itself cause the motion to arise pursuant to Rule 59(e) and Rule 60 As such
the Court finds that Rule 59(e) and Rule 60 is not applicable in this instance Nevertheless this is not a tatal error to
Plaintiff s motion Based upon the substance of Plaintifl s motion the Court will construe it as a motion for
reconsideration of the February 19, 2022 order See Rodrtguev 1 Bureau of Corr 70 V l 924 928 n l (2019) (citing
Joseph \ Bureau 0fC01rectt0ns 54 V I 644 648 n 2 (V I 2011)(‘ [T]he substance 01 a motion and not its caption
shall determine under which rule the motion is construed )
7 Plaintilt 5 February 10, 2022 motion for extension was filed after the deadlines for Plaintiff to file a response to
Defendant slanuary 18 2022 motions have expired Under Rule6 l of the Virgin Islands otCivil Procedure [u]nless
otherwise ordered by the court a party shall tile a response within 14 days after service upon the party of any motion
except a motion filed pursuant to Rule 12 in which case [a] party shall file a response within 20 days atter
Service ofa motion under Rule 12 upon the party V I R Civ P 6 l(f‘)(|) (2)
Herbert v National Industrial Sentces LLC
8X 19 CV 629
Memorandum Opinion and Order 2022 VI SUPER :50
Page 3 01 7
address an action on its merits whenever possible Hansen v Bent Iguana 5 Inc 2016
VI LEXIS 187 at *8 (VI Super Ct Nov 4 2016)
b Analysis
According to the March 12, 2021 letter from the Lieutenant Governor 8 Office,
Division of Corporation and Trademarks Denise Johannes, Director a copy of the process
was served on Defendant 3 last known agent As a Virgin Islands limited liability company
it is Defendant s responsibility to ensure that the Office of the Lieutenant Governor has its
most current information and that Defendant can receive notices from the Office of the
Lieutenant Governor Nevertheless the Court must acknowledge that Defendant filed this
instant motion to set aside entry of default soon after becoming aware of the complaint on
January 10, 2022 Moreover, Plaintiff has not moved for a default judgment and a default
judgment has not been entered Taking everything in consideration the Court finds good
cause to set aside the entry of default entered against Defendant As such, the Court will
vacate the default entered against Defendant and also vacate the portion of the January 20
2022 order ordering Plaintiff to make an appropriate filing to move this matter forward as
to the defaulted Defendant on or before February 28 2022
(Feb 19 2022 Order p 4) (footnote omitted)
On March 4 2022 Plaintiff filed this instant motion
STANDARD OF PROCEDURE
‘1[ 3 Virgin Islands Rule of Civil Procedure Rule 6 4 (hereinafter “Rule 6 4 ) governs motions
for reconsideration Rule 6 4(a) provides that [e]xcept as provided in Rules 59 and 60 relating to
final orders or judgments a party may file a motion asking the court to reconsider its order or
decision within 14 days after the entry of the ruling unless the time is extended by the court V 1
R CW P Rule 6 4(a) Rule 6 4(b) provides that [a] motion to reconsider must be based on
(1) intervening change in controlling law, (2) availability of new evidence (3) the need to correct
clear error of law or (4) failure of the court to address an issue specifically raised prior to the
court 5 ruling and that [w]here ground (4) is relied upon a party must specifically point out in
the motion for reconsideration where in the record of the proceedings the particular issue was
actually raised before the court VI R Clv P Rule 6 4(b) See also Arvzdson v Buchar 72 V1
50 64 (Super Ct Nov 4, 2019) ( motions for reconsideration must be based on one of the grounds
delineated in Rule 6 4(b) ’) Generally “[a] motion for reconsideration is not a second bite of the
Herbert v National Industrial Services LLC
8X 19 CV 629
Memorandum Opinion and Order 2022 VI SUPER '5 O
Page 4 of 7
apple [Instead it] is intended to focus the parties on the original pleadings as the main event
and to prevent parties from filing a second motion with the hindsight of the court 5 analysis
covering issues that should have been raised in the first set of motions In re Infant Sherman, 49
V I 452 457 (V I 2008) In determining whether to grant such a motion the Court operates with
‘ the common understanding that reconsideration is an extraordinary remedy not to be sought
reflexiver or used as a substitute for appeal Id 49 V I at 458
DISCUSSION3
‘|[ 4 In his motion Plaintiff essentially argued that the Court should not have found good cause
to grant Defendant s motion to set aside entry of default and therefore should not have vacated
the default entered against Defendant 4 (Motion )
c][ 5 In its opposition Defendant pointed out that ‘Plaintiff did not specify the grounds for his
motion other than a general citation to the rules and thus, making it “impossible for Defendant to
properly respond to the instant motion (Opps 2 ) Nevertheless Defendant argued that the Court
was correct in its finding that there was good cause to set aside the entry of default ”‘ (Id , at p
4)
3 As a preliminary matter the Court notes that Plaintiff’s motion for reconsideration was timely tiled
4 The Court notes that is an argument that Plaintiff could have and should have raised previously in his response to
Defendant 3 January [8 2022 motion and therefore should not be considered by the Court in a motion for
reconsideration In re Infant Sherman 49 VI at 457 (‘A motion tor reconsideration is not a second bite of the
apple [Instead it] is intended to focus the parties on the original pleadings as the main event and to prevent parties
from tiling a second motion with the hindsight of the courts analysis covering issues that should have been raised in
the first set of motions ) However as noted above Plaintiff did not file a timely opposition and although Plaintiff
subsequently filed a motion tor extension after the deadline to file a response to Defendant 5 January [8 2022 has
passed the Court tound it appropriate to rule on Defendant 3 January 18 2022 motion without Plaintitf 5 response
Thus Plaintitt did not have the opportunity to raise this argument The Court will consider Plaintitf‘s argument in this
instance but reminds Plaintiff to comply with the deadlines set forth in the applicable rules
5 Defendant referenced
Herbal v National Industrial Services LLC
8X 19 CV 629
Memorandum Opinion and Order 2022 VI SUPER 3 0
Page 5 017
‘II 6 Based on Plaintiff’s assertions in his motion the Court concludes that Plaintiff filed his
motion for reconsideration of the Court 5 February 19 2022 order on the need to correct clear error
of law
1 The Need to Correct Clear Error of Law
‘][ 7 When assessing a motion for reconsideration based on the need to correct clear error of
law, the court may grant the motion when its prior decision applied an incorrect legal precept or
failed to conduct proper legal analysis using the correct legal precept Arvzdson v Buchar 72 V I
50 (ll 4 (Super Ct Nov 4 2019) see Beachstde Assocs LLC v Ftshman 53 V I 700 706 713
715, 716 718 (V I 2010) (affirming in pan and vacating and remanding in part a trial courts
denial of a motion for reconsideration because in denying the motion the trial court (1) correctly
applied the law when finding no good cause existed for extending the time for service of process
but (2) incorrectly applied the law after finding no good cause existed and then failing to complete
the second step required by the rule which prescribed the court to assess whether any additional
factors warranted granting a permissive extension of time to effectuate service of process), see
also Merchants Continental Bank 2019 V1 LEXIS 145 at *5 6 (Super Ct Nov 22 2019)
(quoting Snuth 2018 V I LEXIS 13 at *13 n 48) ( When analyzing a motion for reconsideration
based on ‘the need to correct clear error of law the Court 5 determination depends on whether
the Court in its prior decision applied an incorrect legal precept or failed to conduct proper legal
analysis using the correct legal precept ) The Court looks to the moving party to specify the
legal precept it should have applied or ‘show how the correct legal precept was applied
incorrectly in its earlier opinion See Smith 2018 VI LEXIS 13 at *l7 18 (‘As case law
interpreting Virgin Islands Rule of Civil Procedure 6 4(b)(3) illustrates the Court looks to Smith
(1) to specify the legal precept it should have applied or (2) to show how the correct legal precept
was applied incorrectly in its earlier Opinion (i e , legal authority which would enable the Court to
Herbert v National Industrial Services LLC
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Memorandum Opinion and Order 2022 VI SUPER 3Q
Page 6 of 7
rule for the first time on his personal injury claim in the context of his legal malpractice related
claims or to rule his legal malpractice related claims ripe) )
‘l[ 8 Here Plaintiff argued that to determine good cause for a motion to set aside entry of
default the Court should have applied the three factor test as the courts did in James v Willlams,
26 V I 20 (V I 1990) a case from the Virgin Islands Territorial Court, and Defoe v Lesley 18
V I 307 (V I 1981) a case from the Virgin Islands District Court Appellate Division 6 The Virgin
Islands Supreme Court in a pre Banks opinion entered in Spencer v Navarro, 2009 V I Supreme
LEXIS 25 *4 (V I 2009) also identified the same three factor test to consider in determining
whether to set aside a default judgment 7 However for the three factor test the Virgin Islands
Supreme Court cited to a Third Circuit case that originated from Pennsylvania Accordingly, the
three factor test in Spencer it is not binding authority on this Court See In re Catalyst Third Party
Ling 67 V I 3 5 n 3 (V I Super Ct Nov 18 2015) (noting that the three factor test identified
in Spencer is not binding authority because the Virgin Islands Supreme Court cited to a Third
Circuit case that originated from Pennsylvania)
6 In James the court held that ‘ the motion to set aside should be granted whenever (I) the non defaulting party will
not be prejudiced by the reopening (2) the detaulting party has a meritorious detense and (3) default was not the
result of inexcusable neglect or a wilful act 26 V l at 23 In Defoe the court held that [flactors to be considered in
determining the good cause necessary to set aside a detault judgment are that movant had a good excuse tor the
default, a meritorious defense and moved to set aside default within a reasonable time 18 V I at 112
‘ In Spencer the Virgin Islands Supreme Court held that the three factors that courts generally consider in determining
whether to set aside a detault judgment [(1)] whether vacating the default judgment will visit prejudice on the
plaintill [(2)] whether the detendant has a meritorious defense and [(3)3 whether the delault was the result of the
detendant‘s culpable conduct 2009 V I Supreme LEXIS 25, * 4 It is puzzling why Plaintiff cited to James a case
from the Virgin Islands Territorial Court, and Defoe a case from the Virgin Islands District Court Appellate Division
when there is a case from Virgin Islands Supreme Court on the same issue As for James, Plaintift tailed to cite to any
authority to support his proposition that a decision 1mm the Territorial Court is binding on this Court See In re Q G
60 VI 654 661 n 8 (VI 2014) t the decision ofa single Superior Courtjudge is not binding precedent on other
Superior Court judges ) As tor Defoe, for the three factor test in Defoe the Virgin Islands District Court Appellate
Division cited to two cases from the Eastern District of Pennsylvania District Court, and is therefore also not binding
authority on this Court
Neither James nor Defoe is binding authority on this Court
Herbert I National Industrial Serums LLC
SX 19 CV 629
Memorandum Opinion and Order 2022 v1 SUPER 333
Page 7 of7
‘1[ 9 Thus Plaintiff failed to specify the correct legal precept the Court should have applied in
the February 19 2022 order or show how the correct legal precept was applied incorrectly in the
February 19 2022 order See Smith 2018 V1 LEXIS 13 at *17 18 The Court declines to make
such arguments on Plaintiff’s behalf See Joseph 1 Joseph 2015 V I LEXIS 43 *5 (V 1 Super
Ct Apr 23 2015) ( [I]n general the Court will not make a movant s arguments for him when he
has failed to do so ) Thus the Court finds that Plaintiff failed to demonstrate that there was a
clear error of law in the February 19 2022 order As such the Court will deny Plaintiff’s motion
for reconsideration
CONCLl SION
Based on the foregoing it is hereby
ORDERED that Plaintiff s motion for reconsideration, filed on March 4, 2022 is
DENIED
DONE and so ORDERED this Bi day of March 2022
ATTEST WJX
Tamara Charles HAROLD W L WILLOCKS
Clerk of the Court Presiding Judge of the Superior Court
By W
curt Cler S OLE:
Dated 3 lb“ 3 5L
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Croix
Vernal Ezekiel Herbert, Case Number: SX-2019-CV-00629
Plaintiff Action: Damages
v.
National Industrial Services, LLC,
Defendant.
NOTICE of ENTRY
of
Memorandum Opinion and Order
To: Eugenio W. A. Geigel-Simounet, Esq. Gaylin Vogel, Esq.
Please take notice that on March 19, 2022
a(n) Memorandum Opinion and Order
dated March 18, 2022 was/were entered
by the Clerk in the above-titled matter.
Dated: March 19, 2022 Tamara Charles
Clerk of the Court
By:
Janeen Maranda
Court Clerk II