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