SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
LUIS MAGRAS
PLAINTIFF, Civil No SX 17 CV 435
v ACTION FOR DAMAGES
NATIONAL INDUSTRIAL SERVICES JURY TRIAL DEMANDED
LLC PINNACLE SERVICES LLC AND
LIMETREE BAY TERMINALS L L C 6?
CITE AS 2021 VI SUPER
DEFENDANTS
Appearances
Mary Faith Carpenter, Esq
Lee J Rohn and Associates LLC
St Croix, U S Virgin Islands
For Plamnfi
Kevin F D’Amour, Esq
Barnes & D Amour
St Thomas U S Virgin Islands
For Defendant Natlonal Industrml Serwces LLC
Alicia M Chin, Esq
Jackson Lewis P C
Orlando, Florida
For Defendant Limetree Bay Terminals L L C
George H Logan, Esq
Dudley Topper & Feuerzeig LLP
St Croix, U S Virgin Islands
For Defendant Pmnacle Servzces LLC
MEMORANDUM OPINION AND ORDER
WILLOCKS Presiding Judge
‘|[ 1 THIS MATTER came before the Court on Plaintiff Luis Magras (hereinafter Plaintiff )
Defendant National Industrial Services LLC (hereinafter NIS’) Defendant Pinnacle Services
LLC (hereinafter Pinnacle ) and Defendant Limetree Bay Terminals L L C s (hereinafter
Magras v NanonalIndusmalSemces LLC et a!
8X 2017 CV 435
Memorandum Opinion and Order 2021 VI SUPER B:
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Limetree ) joint motion for reconsideration of the Court’s June 10, 2021 order filed on June 13
2021
BACKGROUND
‘il 2 On December 18 2017 Plaintiff a complaint against N18 and Pinnacle in connection with
Plaintiff’s employment with NIS On March 4 2021 Plaintiff filed a motion to amend complaint
to add Limetree as a defendant On March 29 2021 the Court entered an order whereby the Conn
granted Plaintiff’s motion to amend complaint and Plaintiff’s first amended complaint was deemed
filed the date Plaintiff filed his motion In response to Plaintiff’s first amended complaint, NIS
filed its answer on April 15 2021 and Pinnacle filed its answer on April 22 2021
‘ll 3 On May 6 2021 Plaintiff filed a notice advising the Court of the filing of proof of service
of the second amended complaint' on Limetree 5 registered agent According to the return of
service attached to Plaintiff’s notice Limetree was served on April 27 2021
‘1[ 4 On June 3 2021 Plaintiff filed a notice that Plaintiff has commenced arbitration
proceedings before the American Arbitration Association
(|[ 5 On June 10 2021 the Court entered an order (hereinafter June 10 2021 Order )whereby
the Court noted that [ulpon review of the file, it has come to the Court 5 attention that as of the
date of this Order Limetree has not appeared or timely responded to Plaintiff’s first amended
complaint and ordered that within thirty (30) days from the entry of the date of the order Plaintiff
shall make the appropriate filing to move this matter forward as to the defendant who has failed to
appear or answer (June 10 2021 Order pp 1 2) In the June 10 2021 Order the Court explained
' The Court believes that Plaintiff inadvertently referred to the first amended complaint as the second amended
2:23:22: in his notice As of the date of this Order the Court has not granted Plaintiff leave to file a second amended
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Memorandum Opinion and Order 2021 VI SUPER t
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Rule 15 0f the Virgin Islands Rules of Civil Procedure provides that “[u]nless a
statute of the Virgin Islands or a court orders otherwise, any required response to an
amended pleading must be made within the time remaining to respond to the original
pleading or within 14 days after service of the amended pleading whichever is later V I
R CIV P [5(a)(3) While Plaintiff filed a notice on June 3 2021 advising the Court that
Plaintiff has commenced arbitration before American Arbitration Association, the deadline
for Limetree to file a responsive pleading to Plaintiff’s first amended complaint was May
26 [sic] 2021 within 14 days after service of the amended pleading V I R Cw P
15(a)(3) and this matter is still pending before the Court As such the Court will order
Plaintiff to make the appropriate filing to move this matter forward as to the defendant who
has failed to appear or answer
(Id at p l )’
HI 6 On June 13 2021 the parties filed this instant joint motion for reconsideration
STANDARD OF REVIEW
‘fl 7 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 I
R Clv 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
courts 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 V I R CIV P Rule 6 4(b) See also Arwdson v Buchar 72 V I
7 The Court inadvertently stated in its June 10 2021 Order that the deadline for Limetree to file a responsive pleading
to Plaintiff s first amended complaint was May 26 2021 instead of May 17 2021 which is 14 days alter Limetree
was served with Plaintiff first amended complaint Apri127 2021
Magras v National Industrial Services LLC era! {
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50 64 (Super Ct Nov 4 2019) ( motions for reconsideration must be based on one of the grounds
delineated in Rule 6 4(b) )
‘][ 8 Generally [a] motion for 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 filing a second motion with the hindsight of the court’s 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
DISCUSSION
1 Motion for Reconsideration
(II 9 In their joint motion for reconsideration the parties argued that the Court should reconsider
its June 10 2021 Order ordering Plaintiff to make the appropriate filing to move this matter
forward as to the defendant who has failed to appear or answer (Motion p l ) The parties made
the following assertions in support of their argument (i) On May 25 2021 Plaintiff's counsel
Mary Faith Carpenter, Esq , emailed Limetree s attorneys, Stephanie Adler Paindiris Esq and
Alicia M Chin Esq a copy of the Amended Complaint that had been filed on March 4 2021
asking if defense counsel would be representing Limetree in the action and advising that Plaintiff
was prepared to file a demand for arbitration This was the first time Limetree or defense counsel
learned of the Amended Complaint (Id , at p 2), (ii) ‘While it appears Limetree was served with
a copy of the Amended Complaint on April 27 2021, this information was never relayed to in
house counsel or its outside defense counsel due to an inadvertent oversight ’ (Id ) (iii) On May
27 2021 Plaintiff’s counsel confirmed that it would be filing a demand for arbitration and that it
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would not seek a default judgement against Limetree’ (Id ) (iv) Based upon this agreement and
understanding that Plaintiff would arbitrate her claims, the Parties mistakenly believed that
Limetree did not need to respond to the Complaint (Id ) and (v) On June 3 2021 Plaintiff filed
a notice advising the Court that it had commenced arbitration proceedings before the American
Arbitration Association ’ (Id )
‘I[ 10 As a preliminary matter the Count finds that the parties timely filed their joint motion for
reconsideration under Rule 6 4(a) V I R CIV P 6 4(a) ( Except 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 ) However looking at the plain language of their joint motion, the parties had not based
their argument on one of the four grounds enumerated in Rule 6 4 3 Thus they have failed to meet
their burden As such, the Court will deny the parties joint motion for reconsideration See
Arwdson 72 VI at 64 ( motions for reconsideration must be based on one of the grounds
delineated in Rule 6 4(b) )
2 Request to Stay this Matter Pending Arbitration
‘][ ll In their joint motion for reconsideration the parties also requested the Court to stay this
matter pending arbitration
‘][ 12 Before the Court addresses the parties request to stay this matter pending arbitration the
Court must express its concern with the parties’ actions in this matter First Plaintiff and Limetree
does not have the authority to circumvent the rules and agree without the Court 3 approval that
3 Arguably the parties may have based their argument for reconsideration on the availability of new evidence
However no new evidence has been unearthed by the parties Instead the parties simply failed to intorm the Court
previously that Plaintiff‘s counsel confirmed that it would be filing a demand tor arbitration and that it would not
seek a default judgement against Limetree and that [biased upon this agreement and understanding that Plaintiff
would arbitrate her claims, the Parties mistakenly believed that Limetree did not need to respond to the Complaint "
Magrasv National Industrial Serwces LLC e! a!
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Limetree, despite being served need not appear or file a timely answer in this matter This is
simply not allowed and the Court cautions the parties against further disregard of the applicable
rules of this Court Second this matter was not automatically stayed simply because the parties
decided to initiate a parallel proceeding to arbitrate Similarly this matter was not automatically
stayed simply because Plaintiff filed a notice on June 3 2021 advising the Court that Plaintiff has
commenced arbitration before American Arbitration Association The Court has never entered a
stay in this matter and in fact, the parties requested for a stay for the first time in their instant joint
motion for reconsideration Until the Coun orders so this matter is still an active case If the parties
wish to proceed without regard to this Court or the applicable rules of this Court the parties can
simply agree to dismiss this matter and proceed with arbitration However as long as this matter
is pending before the Court the Court expects the parties to comply with the applicable rules of
this Court
‘]I 13 Here the issue remains that Limetree despite being served with the first amended
complaint has not filed an answer 4 Under Rule 6 of the Virgin Islands Rules of Civil Procedure
(hereinafter Rule 6 ), [w]hen an act is required or allowed to be done by or within a specified
period the court may upon a showing of good cause or excusable neglect extend the date for doing
that act and “[t]he court may consider whether the request to extend time is made before or after
the required date, the reason for the movant s delay whether the reason for delay was within the
reasonable control of the movant, the danger of prejudice to the parties the length of the delay
the potential impact of the delay on judicial proceedings whether the party seeking the extension
has acted in good faith and all other relevant circumstances surrounding the party's failure to meet
4 Limetree effectively appeared in this matter when Limetree filed the joint motion for reconsideration
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2021 v1 sum13
the originally prescribed deadline V I R CIV P 6(b) The Supreme Court of the Virgin Islands
has held that ‘excusable neglect’ and good cause are essentially synonyms ”’Amo v Hess
Corp 71 VI 463 480 (Super Ct Oct 17 2019) (quoting Montgomery v Virgin Grand Villas
St John Owners Assn
71 VI 1119 1127 (VI 2019) (citation omitted»
‘][ 14 In taking into account all relevant circumstances surrounding Limetree’s failure to file its
answer by the prescribed deadline, the Court finds that there is good cause for a discretionary
extension to wit, (i) the reason for Limetree’s delay in filing its answer is because (a) [w]hile it
appears Limetree was served with a copy of the Amended Complaint on April 27 202] this
information was never relayed to in house counsel or its outside defense counsel due to an
inadvertent oversight (b) Plaintiff’s confirmation that “it would be filing a demand for arbitration
and that it would not seek a default judgment against Limetree and (c) [b]ased upon this
agreement and understanding that Plaintiff would arbitrate her [sic] claims the Parties mistakenly
believed that Limetree did not need to respond to the Complaint (Motion p 2 ) (ii) there is no
indication that by extending the time for Limetree to file its answer presents any danger of
prejudice to the other parties in fact, the parties acknowledged in their joint motion for
reconsideration that they mistakenly believed that Limetree did not need to respond to the
Complaint and the parties are proceeding with arbitration (iii) the delay will not be exceedingly
long 5 and (iv) the potential impact of the delay on thejudicial proceedings is minimal the parties
are proceeding with arbitration and requested the Court to stay this matter pending arbitration As
such, the Court will vacate the Court 5 June 10, 2021 Order and grant Limetree a discretionary
extension of time for Limetree to file its answer See People of the V] v Looby, 68 V I 683 690
5 See supra footnote 2
MagraSi Nationallndusmal Seruces LLC et a!
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(V I 2018) ( [The Virgin Islands Supreme Court] has noted on multiple occasions that regardless
of any procedural rules the common law confers trial courts with the discretion
to revise [an] interlocutory order at any time prior to entry of a final judgment ’ )(quoting People
of the Virgin Islands v Armstrong 64 V I 528 535 (V I 2016) (quoting Island Tzle & Marble
LLC v Bertrand 57 V I 596 609 (V I 2012))) At this time the Court will reserve ruling on the
parties’ request to stay this matter pending receipt of Limetree 5 answer 6
CONCLUSION
‘l[ 15 Based on the foregoing the Court will deny the parties joint motion for reconsideration
vacate the Court 3 June 10, 2021 Order grant Limetree a discretionary extension for Limetree to
file an answer, and reserve ruling on the parties request to stay this matter pending receipt of
Limetree 3 answer Accordingly, it is hereby
ORDERED that the parties joint motion for reconsideration of the Court 5 June 10 2021
Order filed on June 13 2021 is DENIED It is further
ORDERED that the Court 5 June 10 2021 Order shall be and is hereby VACATED And
it is further
ORDERD that within five (5) days from the date of entry of this Order Limetree shall
file its answer to Plaintiff’s first amended complaint The Court will reserve ruling on the parties
request to stay this matter pending receipt of Limetree’s answer
° While the parties may question the necessity tor Limetree to file an answer given that the parties agreed to arbitrate
and requested to stay this matter pending arbitration the Court finds that it is legally and procedurally sound in this
instance to have Limetree file an answer Otherwise, the Court would be setting a bad precedent that may be viewed
as an invitation to litigants to enter into private agreements as to filing appearances answers and entries of defaults
and effectively obliterate the applicable rules of the Court
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Memorandum Opinion and Order 2021 VI SUPER 5 I
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DONE and so ORDERED this ”2 day of June 2021
ATTEST WW 7‘ M i
Tamara Charles HAROLD W L WILLOCKS
Clerk of the Court Presiding Judge of the Superior Court
By Wfl...
Court Clerk Salaam: JZ—
Dated %2(&’ £22 &’__