SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
DUTCH WEST INDIES TRADING Case No SX 2005 CV 00661
COMPANY INC D/B/A BANDWITH VI
COMPANY, HURRICANE Action for Breach of Contract and
COMMUNICATIONS LLLP, Damages
BLUEWATER BOTTOMLINE LLC
PALO DURO COMMUNICATIONS, INC Jury Trial Demanded
NEUTRON COMMUNICATIONS LLC
AND STORM COMMUNICATIONS LLC
PLAINTIFFS,
v.
RALPH ADDINGTON SWP HOLDING,
LLC ARCOM COMMUNICATION LLC
SBA TOWERS USVI HUNTER LOGAN
AND NICHOLS NEWMAN LOGAN &
D ERAMO,
DEFENDANTS
Cite as 2022 VI Super 69
Appearances
Lee J Rohn, Esq
Lee J Rohn and Associates, LLC
St Croix V1 00820
For PlamnflDutch West Indzes Tradmg Company Inc (1 b a Bandwzdth VI Company
Michael J Tedesco, Esq
Andreozzi Bluestein LLP
Clarence NY 14031
For Plamttfifs Hurrzcane Commumcanons LLLP Bluewater Bottomlme LLC Palo Duro
Commumcatzons Inc Neutron Commumcatzons LLC and Storm Communications LLC
Edward L Barry, Esq
Law Offices of Edward L Barry P C
Christiansted V1 00820
For Defendants Ralph Addmgton SWP Holdings LLC and Arcom Commumcanons LLC
Dutch W Indies Tradmg Co e! a] v Addmgton e! a]
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MEMORANDUM OPINION AND ORDER
Page 2 of IS
Justin K Holcombe, Esq
Dudley Newman Feuerzeig LLP
St Thomas V100804
For Defiandant SBA Towers USVI Inc
W Mark Wilczynski, Esq
Lauren N Wright, Esq
Law Offices of W Mark Wilczynski PC
St Thomas V100804
For Defendants Hunter Logan Esq and Nlchols Newman Logan and D Eramo P C '
MEMORANDUM OPINION AND ORDER
WILLOCKS Preszdmg Judge
'1 THIS MATTER is before the Court sua sponte For the reasons stated below, the Court, in its
capacity as Presiding Judge of the Superior Court overrules the decision of the Complex Litigation
Division judge, which declined to designate this case as complex
I FACTUAL AND PROCEDURAL BACKGROUND
‘2 Plaintiffs Dutch West Indies Trading Company doing business as Bandwidth VI Company
(hereinafter “Bandwidth VI’) Hurricane Communications, LLLP, Bluewater Bottomline, LLC, Palo
Duro Communications Inc Neutron Communications, LLC, and Storm Communications, LLC
commenced this action in 2005 for breach of contract fraud conspiracy, and legal malpractice, among
other causes of action They seek damages (including punitive damages), a declaratory judgment, and
specific performance among other remedies
fi3 According to the Complaint this action arose from a plan to build a wireless data services
networks in Puerto Rico and the Virgin Islands in the fall of 200] Bandwidth VI learned that Ralph
Addington (hereinafter Addington’) SWP Holdings LLC (hereinafter “SWP”), and Arcom
Communications LLC (hereinafier Arcom ) planned to sell several “properties, lease fee holdings and
I At all times relevant to this Memorandum Opinion and Order counsel for these Defendants was Henry C Smock Esq
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2 way radio business as [a] package deal for l 4 million dollars (Am Compl ‘ l7 ) Five properties
were to be sold, three of which contained towers owned by SBA Towers USVI, Inc (hereinafter SBA )
Bandwidth VI obtained an option from Addington SWP and Arcom to purchase the properties
Bandwidth VI then leased space on the towers from SBA and entered into a joint venture with Bluewater
Bottomline, LLC (hereinafter ‘Bluewater ) to further the project Bandwidth VI and Bluewater formed
several partnerships including Hurricane Communications LLLP, Storm Communications LLP
Neutron Communications LLC and Palo Duro Communications, Inc to raise capital, and deve10p and
then manage the project Bandwidth VI and Bluewater and the partnerships and companies they formed
will be referred to hereinafter as Plaintiffs collectively
1:4 Plaintiffs retained Hunter Logan, Esq and the former law firm of Nichols, Newman, Logan, and
D’Eramo, P C to advise and assist in the transactions with Addington, SWP, Arcom, and with SBA
Plaintiffs admit that Attorney Logan and his firm had disclosed to them that the firm had represented SBA
in the past and had drawn up lease agreements between SBA and Addington, Arcom, and SWP But
Plaintiffs contend that Attorney Logan and the firm failed to disclose that SBA was given a right of first
refusal over the same ground leases being sold by Addington Arcom, and SWP to Plaintiffs Plaintiffs
further contend that Attorney Logan and the firm advised them to go forward with the purchase agreement
with Addington, Arcom, and SWP, even though they knew or should have known that the right of first
refusal was an encumbrance and a cloud on the titles
‘5 SBA eventually learned of the pending transaction between Plaintiffs and Addington, Arcom, and
SWP and informed them all of its right of first refusal on three of the five properties Plaintiffs intended
to buy the same three properties on which SBA s towers stood This lawsuit followed after the
transaction fell through Plaintiffs sued Addington Arcom SWP Attorney Logan and his law firm, and
SBA for breach of contract (as to Addington SWP and Arcom) for fraud (as to Addington SWP, and
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MEMORANDUM OPINION AND ORDER
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Arcom), for tortious interference (as to SWP), for conspiracy (all Defendants), for legal malpractice and
breach of contract (as to Attorney Logan and the law firm), for declaratory judgment that no right of first
refusal exists (as to SBA), for specific performance (as to Addington, Arcom, and SWP), and for a
declaratory judgment that they are not liable for rent on the towers from the assertion of the right of first
refusal until specific performance is ordered (as to SBA)
116 Defendants Attorney Logan and the law firm appeared and answered the complaint on December
15, 2005 Defendants Addington, Arcom, and SWP appeared on December 20, 2005, and moved to
dismiss for failure to state a claim for relief That motion remains pending SBA appeared and answered
the complaint on December 28, 2005, and counterclaimed against Bandwidth V1 for unpaid rent on the
five year Antenna Site Agreement SBA then moved for summary judgment and to stay discovery, which
Plaintiffs opposed Both motions remain pending Several discovery related motions and stipulations were
filed Other than a recusal order and orders concerning the withdrawal and appearance of counsel, no other
orders were entered by a Superior Court judge until March 21, 2019, when the Court (Meade, J ) scheduled
this matter for a status conference on April 11, 2019 The Court heard from the parties, directed them to
meet and confer and submit a proposed scheduling order, and then referred this matter to mediation
1|7 By order dated August 29 2019 entered August 30 2019 the Court (Meade J ) sua sponte
referred this matter to the Complex Litigation Division for the Judge (Molloy, J ) to determine whether
this case should be designated complex In response, Defendants Addington, SWP, and Arcom said they
took no position but actually opposed treating the case as complex, they believed there really should only
be one plaintiff which would simplify the case Defendants Logan and the firm did not respond Plaintiffs
supported designating the case as complex, noting that, even though it does not fit within any of the
presumptively complex categories, it “certainly requires exceptional judicial management to ensure that
it is brought forward in an efficient manner[,]” in part because “[t]here are several parties on each side of
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MEMORANDUM OPINION AND ORDER
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the matter with five different firms representing plaintiffs and defendants cumulatively ” (Pls’ Br Re
Transf to Complex Litig Div 7, filed Oct 22, 2019 ) Defendant SBA concurred, explaining that “[t]his
case presents both simple and complex issues ” (Def SBA Towers USVI, Inc Br in Supp of Transf to
Complex Litig Div I, filed Oct 22, 2019) Defendant SBA reasoned that this case “is simple because
Plaintiffs’ claims against SBA and SBA’s counterclaims against Bandwidth VI Company present
discrete legal issues that easily may be resolved by summary judgment ” Id at I “However, when
considered as a whole, the case is complex Indeed, in a single action, Plaintiffs are asserting tort
claims, a legal malpractice claim, and claim a breach of contract In addition, they are seeking a declaratory
judgment and punitive damages ” Id at 1 2
1|8 The Court (Molloy J ) heard argument from the parties on October 30 2019 and ruled from the
bench that the case was not complex A written order was entered the same day but did not state any
findings or reasoning Nothing further regarding the referringjudge’s request for complex designation has
occurred to date No motions have been resolved yet, however, including the December 20, 2005 motion
to dismiss Defendants Addington, Arcom, and SWP filed, as well as the summary judgment motion SBA
filed on October 24 2006
II DISCUSSION
119 Title 4, Section 72b of the Virgin Islands Code vests the Presiding Judge with the authority to
balance the cases among the judges See 4 V I C § 72b(a) (“The presiding judge of the Superior Court
shall be the administrative head He shall be responsible for prescribing the duties of its judges
and officers [H]e shall from time to time designate the judges who are to sit in each judicial division
and divide the business in such manner as will secure the prompt dispatch of the business of the court and
equalize the case loads of the several judges ”) Rule 92(g) of the Virgin Islands Rules of Civil
Procedure provides that the decision on whether to designate a case as complex does not “affect the
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authority of the Presiding Judge to supervise the caseloads of the several judges ” V I R Civ P
92(g) This Court reads Rule 92(g) as authorizing the Presiding Judge to overrule the decision of the
Complex Litigation Division judge, either to decide that a case should remain with the judge to whom it
is presently assigned or, as in this instance, to decide that a case should be designated complex Accord In
re Alumina Dust Clams S Ct Civ No 2021 0014 2021 V I Supreme LEXIS 10 *2 (V I May 13
2021) (“Rule 92(g) itself states that the authority ofthe Presiding Judge to supervise the caseloads pursuant
to title 4 of the Virgin Islands Code which includes the authority to assign cases, see 4 V I C § 72b—is
not affected ”) Any other interpretation would infringe on the statutory authority of the Presiding Judge
to balance the caseloads of the judges Cf Vanterpool v Gov t ofthe V1 63 V I 563 574 (2015) (referring
to the statutory assignment power of the presiding judge as a matter affecting substantive rights), see also
Gerace v Bentley, 65 V I 289, 303 (2016) (“‘If a statute and a court rule cannot be harmonized, the court
rule will generally prevail in procedural matters and the statute in substantive matters ’” (citation omitted)
Ergo, this Court holds that the Presiding Judge retains the discretion to overrule the decision of the
Complex Litigation Division judge as to whether a case should or should not be complex This discretion
should only be exercised “if allowing the prior order to stand would be unjust or cause further delay ”
Victor v Hess 011 VI Corp 69 VI 484 491 (Super Ct 2018) accord In re Kelvm Manbodh Asbestos
thlg Series 69 V I 394 439 (Super Ct 2018) ( One judge should not ordinarily overrule the
interlocutory decision of another judge of the same court in the same case ’” (emphasis added) (quoting
Goldey v Trs 0fthe Umv ofPa 675 A 2d 265 266 (Pa 1996)»
1|10 The Complex Litigation Division of the Superior Court exists to provide ‘a centralized approach’
and ‘continuous and extensive judicial management’ for all cases designated as complex ” Highland
Credit Opportumtzes CDO Ltd v Evans Freke 74 V I 275 281 (Super Ct 2021) (quoting Victor v
Hess 011 V I Corp
69 VI 484 491 (Super Ct 2018)) Rule 92 of the Virgin Islands Rules of Civil
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Procedure specifies the procedure for deciding whether a case should be complex See generally V I R
Civ P 92(b) (c) “Class actions, securities claims or investment losses involving multiple parties, and
environmental tort claims, mass tort claims, or toxic tort claims commenced as one action or multiple,
individual actions, are several types of cases that are presumptively complex ”’ Highland Credzt
Opportunities CDO Ltd , 74 V I at 281 (ellipsis, internal quotation marks, and citation omitted)
1111 As the parties note and as the Complex Litigation Division Judge found this case does not fit
within any presumptively complex category (See Defs Addington, SWP Holding, LLC, and Arcom
Comm , LLC’s Adv to Ct 4, filed Oct 21, 2019 (“This case does not present any ‘presumpnvely complex
claims’ as defined by Rule 92(b) ”); Pls’ Br 4 (“The present case does not fall into any of the six
enumerated types of claims that are considered presumptively complex under Rule 92(b)(1) (6) ”) ) The
case does not involve toxic or environmental torts, nor does it arise from a natural or territory wide
disaster See VI R Civ P 92(b)(3) (presumptively complex cases include “contract, statutory, or tort
claims arising out ofa natural disaster or other territory wide or island wide event[ ]”) At best it could
fit within the category of “investment losses involving multiple parties[ ]”V I R Civ P 92(b)(4)
1|12 However, the inquiry does not end with the presumptively complex categories because “a case can
be deemed complex if it involves a large number of parties, or when coordinated discovery across multiple
cases would be advantageous ” Hzghland Credit Opportunmes CDO Ltd 74 V I at 281 (internal
quotation marks and citation omitted) “Cases can also be complex if they require specialized expertise
and case processing, or when issues of insurance, limits on assets and potential bankruptcy can be best
addressed in coordinated proceedings ’ 1d (internal quotation marks and citation omitted) Even “a single
case, unrelated to any other and regardless of the number of parties, can be complex if it ‘requires
exceptional judicial management ’” Id (quoting Szxteen Plus Corp v Yousef, 72 V I 610, 627 (Super Ct
2020))
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1113 In support of designating this case complex, the Court notes first that the judge who referred this
matter for consideration believed it warranted complex treatment Defendants Addington, SWP, and
Arcom suggest that the referring judge’s determination is entitled to some weight and this Court agrees
(See Defs Addington, SWP Holding, LLC, and Arcom Comm , LLC 5 Adv to Ct 4 (“Whether it is
nevertheless a ‘complex case’ more generally defined as ‘a civil action or proceeding that requires
exceptional judicial management to avoid placing unnecessary burdens on the court,’ V I R Civ P 92(a),
is a very subjective, discretionary determination The judge to whom the case is presently assigned appears
to conclude that it so qualifies, and the Complex Litigation Division should take the referring Judge’s
views into account in deciding which option offers the best prospects for efficient and economical case
management ”) ) Accord V I R Civ P 92(d) (“Each action or proceeding which the judge to whom
it is initially assigned believes should be subject to management as a complex case, shall be forwarded as
soon as practically possible to the Complex Litigation Division judge for a determination
after consultatzon With the judge to whom the action or proceeding was initially assigned whether
that action or proceeding should be treated as a complex case ” (emphasis added)) ) There is no indication
that the Complex Litigation Division Judge consulted with the referring judge or took his determination
into account since no written findings were entered Contra V I R Civ P 92(c) (“The determination
whether a case is complex shall be made in a written order after appropriate consideration to the type
of claims involved, the law and [the various] factors [for and against complex treatment] ”
(emphasis added)) This factor supports reexamining the decision not to treat this case as complex
1|14 Second, Plaintiffs and Defendant SBA both agree that this case warrants complex treatment, while
Defendants Addington, Arcom and SWP took no position, believing Bandwidth VI’s companies and
partnerships were improperly joined as Plaintiffs The position of the parties is also a factor that must be
considered when deciding whether to designate a case complex See V I R Civ P 92(d) (“Each action
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or proceeding which the judge to whom it is initially assigned believes should be subject to
management as a complex case, shall be forwarded as soon as practically possible to the Complex
Litigation Division judge for a determination after hearmgfiom the partzes whether that action or
proceeding should be treated as a complex case ” (emphasis added», accord Gov? ofthe V I v Indyke,
No ST 2020 CV 00014 2021 V I LEXIS 88 *4 (V 1 Super Ct Dec 7 2021) ( Considering that the
parties are in agreement, and that litigants generally have the right to choose the division in which their
case is heard the Court concurs that Indyke should be designated as complex More than the parties
agreement compels this conclusion, however ”) Here, Defendants Logan and the law firm did not respond
Defendants SBA and Plaintiffs agreed that the case should be complex And Defendant Addington, SWP
and Arcom stated that it took no position Consensus among the parties who considered the whether
complex treatment is warranted is another factor that weighs in favor of reexamining the decision not to
treat this case as complex 2
1115 More importantly the Court agrees with Plaintiffs and Defendant SBA that “this case would
benefit from the specialized expertise and case processing by the dedicated Complex Litigation Division
judge and staff ’ (Def SBA Towers USVI Inc 8 Br at 2, accord Pls’ Br 7 (“The expertise of the
Complex Litigation Division in coordinating discovery and case management issues among several parties
would certainly help push this case forward promptly )) Plaintiffs highlight that “[o]ver the course of
the last decade the parties have not been able to agree on a course to push discovery forward and help
move the case along, not even a scheduling order (Pls Br 7) And Defendant SBA notes that “the
Superior Court has had trouble managing this case It has been idle for many years and dispositive motions
2 In fact, agreement on designating a case complex is not common Cf. Highland Credit Opportunities CDO Ltd , 74 V 1 at
282 83 (discussing plaintiffs opposition to complex designation) Sixteen Plus Corp 72 V 1 at 625 26 (Super Ct 2020)
(discussing defendants opposition to complex designation)
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have remained pending for over a decade This type of extraordinary delay often occurs [in] complex cases
and is the very reason for the creation of the Complex Litigation Division ” (Def SBA Towers USVI, Inc
Br 2; accord 1d at S (“In this case, specialized expertise in managing commercial litigation will be
important for moving the case forward It may also result in a more efficient disposition of this matter
both in terms of scheduling and consideration of pending motions ’ ) )
1|16 To be sure, delay is not a factor for designating a case as complex But, as Defendant SBA points
out, delay does tend to occur more often in complex than in non complex cases and particularly in complex
cases with multiple claims by multiple plaintiffs against multiple defendants See generally 1d at 5
(quoting Paula L Hannaford Agor, et a] , Evaluation of the Centers for Complex Cm] L1t1gat10n P110!
Program, Nat’l Cntr for State Courts, 4 (2013)) Plaintiffs also note that the posture of a case is a factor
to be considered in deciding whether the expertise of the Complex Litigation Division is warranted (See
Pls’ Br 4 (“The posture of the case is unusual The case is fourteen years old but yet one party still has
not answered No discovery reSponses have been served from the Addington Defendants or SBA There
are 13 outstanding motions ”) ) Accord V I R Civ P 92(0) (“The determination whether a case is
complex shall be made after appropriate consideration [as to] (2) whether management of the
case on the Complex Litigation Division Docket may unreasonably delay the case ”)
1]] 7 Although initially stating that they took no position, Defendants Addington, SWP, and Arcom did
assert that this case should not be designated complex because there really should only be one Plaintiff,
Hurricane Communications, LLLP (Defs Addington, SWP Holdings, LLC, and Arcom Comm , LLC’s
Adv to Ct 5 (“Addington submits that any potential complexity is illusory and results from the
unnecessary and improper multiplicity of the parties ”) ) That may be correct, and if so, the case could be
returned to the referring judge once its complexity has lessened Cf VI R Civ P 92(e)(2) (“[I]f the
Complex Litigation Division judge later determines that the action should no longer be treated as complex,
Dutch W Indies Trading Co e! a! v Addington e! a! 7022 V] Super 69
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the case shall be returned to the Clerk to be transferred to the appropriate division and reassigned to the
appropriate judge ”) But the fact that a case might one day be made simple is not a reason to refuse to
treat it as complex now Instead the question is whether the case, in its present posture, warrants complex
treatment
1|18 Complex treatment is warranted here for several reasons, including the posture of the case, its age
the number of pending motions and changes in the law since the motions were filed the number of parties
(six Plaintiffs and six Defendants), and the number of claims (eight or more claims for relief brought by
all six Plaintiffs, some against all six Defendants, and a counterclaim by one Defendant against one
Plaintiff) Although this case is not presumptively complex it is one where management by the Complex
Litigation Division will help to streamline proceedings, reduce expense and delay, and potential prejudice
to the parties Cf. V I R Civ P 92(c)(2) As Defendant SBA notes
In a complex case the pleading stage lasts for a much longer period of time, often lasting
four to six months More complex cases often involve cross and third party claims, which
necessarily lengthen the pleading stage as newly added parties are served, retain counsel,
and file responsive pleadings Cases involving large numbers of parties also require more
time for the lawyers to organize themselves and begin preparations for the discovery and
negotiation phases of litigation (Def SBA Towers USVI, LLC’s Br 5 (ellipsis omitted)
quoting Hannaford Agor Evaluatzon 0f the Centers for Complex szzl ngatzon P110!
Program 4) )
In this instance, eighteen years after they appeared Defendants SBA, Addington, SWP, and Arcom have
not yet answered If they were to counterclaim or crossclaim or assert third patty claims, this eighteen
year old case would be further delayed just getting beyond the pleading stage Even if no further claims
are added and all Plaintiffs are properly before the Court the case still has to be streamlined, possibly by
severing claims into separate lawsuits to be coordinated under a master case 3 At present, however, this
3 For example the Plaintiffs initially appeared through the same counsel In 2010 however all Plaintiffs except Bandwidth VI
changed counsel Counsel for Plaintiff Bandwidth VI recently moved to amend the complaint Although the motion only sought
to correct the name of Bandwidth VI (to Dutch West Indies Trading Company doing business as Bandwidth VI Company) it
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case is complex because it involves “a large number of parties[,]” VI R Civ P 92(c)(l), asserting
multiple claims in “a complex commercial dispute[,]” “related to a proposed transaction involving
wireless data towers[,]” that involves “legal issues [and] challenges not present in a typical case ”
(Def SBA Towers USVI, LLC’s Br 4 ) Specialized expertise and processing by the Complex Litigation
Division staff will assist here
111 CONCLUSION
11 9 For the reasons stated above, this Court holds that the Presiding Judge of the Superior Court retains
the discretion to overrule a decision of the judge assigned to the Complex Litigation Division and
designate a case as complex or rescind the complex designation, discretion that should only be exercised
in rare instances where allowing the prior order to stand would be unjust or cause further delay Here,
given the age of this case, the number of parties, the variety and quantity of claims (contract claims, tort
claims, and claims for declaratory relief), and the overall delay in resolving motions that have been
pending for over a decade not designating this case as complex would be unjust and will cause further
delay The parties agreed with the referring judge that this case warrants complex treatment This Court
agrees However, to avoid further burdening the judge assigned to the Complex Litigation Division, the
Court will reassign this matter to its own docket Accordingly, it is hereby
ORDERED that pursuant to Rule 92(g) of the Virgin Islands Rules of Civil Procedure, the Order
dated and entered October 30 2019 is OVERRULED It is further
ORDERED that pursuant to Rule 92(0) of the Virgin Islands Rules of Civil Procedure, this case
is DESIGNATED as COMPLEX and the Clerk 5 Office shall note the designation on the case
management system It is further
does highlight concerns that may arise should multiple plaintiffs in the same case with different counsel differ over how their
case should proceed
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ORDERED that, pursuant to Title 4 Section 72b(a) of the Virgin Islands Code, this matter is
REASSIGNED to the docket of the undersigned judge for all further proceedings It is further
ORDERED that the Staff Master shall hold a status conference in this case within twenty eight
(28) days from the date of entry of this Order 2132 report back to the Court on the status of the case
DONE and so ORDERED this ‘10 day of July 2022
HAROLD W L WILLgCKS
ATTEST Presiding Judge of the Superior Court
Tamara Charles
Clerk of the Court
By %m.24.2
G urt Clerk?
Dated £2 #2 (jflfiX
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Croix
Dutch West Indies Trading Company, Inc. et al, Case Number: SX-2005-CV-00661
Plaintiff Action: Damages
v.
Ralph Addington, et al,
Defendant.
NOTICE of ENTRY
of
Memorandum Opinion and Order
To: Michael Joseph Tedesco, Esq. W. Mark Wilczynski, Esq.
Lee J. Rohn, Esq. Edward L. Barry, Esq.
Justin K. Holcombe, Esq.
Please take notice that on July 27, 2022
a(n) Memorandum Opinion and Order
dated July 26, 2022 was/were entered
by the Clerk in the above-titled matter.
Dated: July 27, 2022 Tamara Charles
Clerk of the Court
By:
Janeen Maranda
Court Clerk II