SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
VENESSA HENDRICKS, ‘
I
PLAINTIFF, ‘
! X 18 CV 199
v
PINNACLE SERVICES, LLC, AND LIMTETREE
BAY TERMINAL, LLC,
DEFENDANTS
ORDER
AND NOW, in accordance with the Memorandum Opinion of even date it is hereby
ORDERED that the Motions to Stay Proceedings and Compel Arbitration are GRANTED it
is further
ORDERED that the parties confer and proceed to arbitration within THIRTY (30) DAYS It
is further,
ORDERED that the parties appear for a status conference on May 14 2020 at 9 30AM in
Courtroom 206 4*
DONE and so ORDERED this lb day of March 2020
ATTEST / ‘
Tamara Ch2" es HARD D L WILLOCKS
7 4/4 a”
Clerk oft a r ' esiding Judge of the Superior Court
By A I I //A
C rt Clerk upe isor
O
Dated / (Q.
SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
VENESSA HENDRICKS,
PLAINTIFF,
v
SX 18 CV 199
PINNACLE SERVICES, LLC, AND LIMTETREE
BAY TERMINAL, LLC, Cite as 2020 V I Super 037
DEFENDANTS
FOR PUBLICA TION
Appearances
ATTORNEY LEE J ROHN, ESQ
For Plazm‘IJjr
ATTORNEY GEORGE H LOGAN, ESQ
For Pinnacle Servzces LLC
ATTORNEY STEPHANIE L ADLER PAINDIRIS, ESQ
For leetree Bay Termmals LLC
MEMORANDUM OPINION
WILLOCKS, Administrative Judge
1} 1 THIS MATTER is before the Court on the Motion to Stay Proceedings and Compel
Arbitration of Pinnacle Services, LLC (hereinafter ‘Pinnacle’ ), filed June 28, 2018, and the motion by
Limetree Bay Terminals, LLC (hereinafier ‘Limetree’ ), filed July 6, 2018 The motions will
respectively be referred to as ‘Pinnacle’s Motion’ and Limetree 5 Motion ” Reviewing the two
motions, it appears that Limetree essentially joined in Pinnacle’s Motion The motions are based on
the same Employment Agreement and arbitration provision that the Plaintiff executed corollary to her
employment with Pinnacle on or about May 22 2017 and has put forward the same legal arguments
The Plaintiff responded in opposition to both motions on July 13 2018 Thereafter Pinnacle filed its
reply on July 25 2018 and Limetree filed theirs on July 27 2018 The parties also supplemented their
Hem/7'1 mks \ Pinnacle e! a] 2020 V I Super 037
sx 2018 CV 199
Memorandum Opinion
Page 2 of 8
briefing pursuant to Court order Pinnacle and Limetree filed their supplements on September 18,
2018 and the Plaintiff filed hers on September 19 2018
1}, 2 According to Pinnacle and Limetree the Plaintiff agreed to arbitrate work related disputes as
a condition of her employment (See Pinnacle’s Mem to Mot 3 ) The arbitration provision states in
relevant part
14 ARBITRATION
Except as provided below in this section, all claims controversies or disputes
(collectively referred to as ‘claims for purposes of this Agreement) whether by
Employer or Employee arising out of or in any way relating to this Agreement or to
Employee 5 employment by Employer, or the termination of that employment, or for
bodily injury or property damage, or arising out of or related to Employee 5 presence
(during the term of Employee 5 employment by Employer) at The Facility, or any other
property owned leased or controlled by Employer or any subsidiary or parent or
affiliated company including claims by Employee against Employer, its shareholders
or subsidiary or parent or affiliated companies and its or their shareholders, members
officers, directors, employees and agents (all of the foregoing shall be collectively
referred to as Employer” for purposes ofthis Agreement to arbitrate) shall be resolved
solely and exclusively by arbitration as provided in this Agreement
in addition Employee specifically agrees that all claims, accruing from this day
forward, that Employee may have against LIMETREE, HOVENSA, or any Contractor
at the Facility and its or their members shareholders or subsidiary or parent or
affiliated companies and its or their officers directors, employees, and agents all as
intended third party beneficiaries of this Agreement (all of the foregoing shall be
collectively referred to as LlMETREE’ ‘HOVENSA’ or Contractor’ as applicable
for purposes of this agreement to arbitrate) arising out of or in any way relating to
Employee 3 employment by Employer, or the discipline lay off or termination of that
employment, or for bodily injury or property damage or arising out of or related to
Employee’s presence (during the term of Employee 3 employment by Employer) at The
Facility or Employee 5 dealings with LIMETREE HOVENSA or LIMTETREE s
HOVENSA s dealings with Employee or LIMETREE s HOVENSA s dealings with
Employer or Employer 5 dealings with LIMETREE HOVENSA shall be resolved
solely and exclusively by arbitration as provided in this Agreement
15 MATTERS ARBITRABLE
Arbitrable matters shall be those specified in this Agreement Arbitrable matters
include, but are not limited to any provisions of Titles 10 and 24 of the Virgin Islands
Code, including without limitation claims for wrongful or retaliatory discharge or
wrongful or discriminatory treatment under Virgin Islands law, including without
limitation the Wrongful Discharge Act, 24 V I Code § 76, Whistleblowers Protection
At 10 V] Code 121 et seq and the Plant Closing Act 24 V I Code 471 et seq
Hendrick“ Pinnacle eta] 2020 V I Super 037
SX 20l8 CV I99
Memorandum Opinion
Page 3 of 8
any other law of the United States or the Virgin Islands prohibiting employment
discrimination or retaliation or otherwise making any employment action unlawful;
tort law, including without limitation claims against Employer or Client 5 Name or any
Contractor at the Facility for bodily injury of any nature defamation and infliction of
emotional distress; or property damage
this Agreement or any other contract and
any law or regulation affecting Employer 5 right to discipline promote, demote or
terminate the employment of Employee
The parties also agree to arbitrate the issue of arbitrability of any claim The arbitrator
shall decide all issues of arbitrability including, but not limited to any defenses to
arbitration based on waiver, delay or like defense The arbitrator shall also decide
whether any and all conditions precedent to arbitrability have been fulfilled The parties
agree that all matters of substantive and procedural arbitrability shall be decided
exclusively by arbitration (Id at l 3 see also Pinnacle 5 Exhibit A)
113 In sum Pinnacle and Limetree (collectively the Defendants ) assert that the arbitration
agreement must be enforced pursuant to the Federal Arbitration Act (hereinafter ‘FAA ) because the
provision applies to the Plaintiffs claims which are wrongful discharge and discrimination in
violation of the Virgin Islands Civil Rights Act
1% The Plaintiff opposes enforcement of the arbitration agreement on the ground that the
Defendants have not met their burden of proving that the Employment Agreement demonstrates a
transaction that affects interstate commerce ‘ (Pl ’5 Supp Br I ) Specifically, the Plaintiff notes that
her job never took her outside the Virgin Islands that her employment notices were to be sent to a
Virgin Islands address and that her duties did not involve any interstate commerce or interaction with
the Defendants’ products (Id at 4 5 ) According to the Plaintiff ‘[t]he employment contract at issue
here does not evidence a transaction affecting interstate commerce where the parties to the
contract are a Virgin Islands corporation and a Virgin Island[er], and the transaction is providing
security guard services solely at a facility in the Virgin Islands (Id at 5 )
' In the Plaintiffs Supplemental Brief she concedes that the FAA applies to the Virgin Islands under certain circumstances
such as when a contract demonstrates an interstate nexus Pl 5 Supp Br I
Hendn'cks 1 Pinnacle er a] 2020 V i Super 037
5X 2018 CV I99
Memorandum Opinion
Page 4 of 8
STANDARD OF LAW
1’; 5 Pursuant to Rule 12(d) of the Virgin Islands Rules of Civil Procedure, a motion made under
Rule 12(b)(6) must be treated as one for summaryjudgment under Rule 56’ when matters outside the
pleadings are presented and not excluded by the Court V I R Civ P 12(d) ‘All parties must be given
a reasonable opportunity to present all the material that is pertinent to the motion ’ Id
1[ 6 In this case the motions of Pinnacle and Limetree are based on failure to state a claim upon
which relief can be granted under Rule 12(b)(6) However, in deciding whether a dismissal (or a stay)
is warranted the Court must review the Employment Agreement and arbitration provision at issue and
which goes beyond the pleadings As such, the Court will treat the motions as motions for summary
judgment ‘The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law V l R Civ
P 56(a)
DISCUSSION
17 In Whyte v Bockmo the Supreme Court of the Virgin Islands found that [w]hen the FAA is
applicable through the Commerce Clause a contract comes within the purview fo the FAA if an
interstate nexus is shown 69 V I 749 (S Ct 2018) (citations and original brackets omitted) ‘Thus
a 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 ” Id (citations omitted) However, the burden on
the compelling party to show that a contract evidences an interstate nexus is relatively low ’ Id
(citations omitted) The contract need only 017236! interstate commerce and ‘need not be m interstate
commerce nor have a substantial effect on interstate commerce ’ Id (citations omitted)
1i 8 It is apparent then that the FAA applies to the Virgin Islands when an interstate nexus can be
demonstrated In this case the contract at issue is the Plaintiff‘s Employment agreement and its
arbitration provision By the terms ofthe arbitration provision, the Plaintiff” 3 claims must be arbitrated
Hendricks v Pinnacle e! a] 2020 V 1 Super 037
SX 2018 CV 199
Memorandum Opinion
Page 5 of 8
As the Plaintiff points out, however, the Defendants have failed to offer proof that the contract relates
to interstate commerce If the Defendants had merely noted that Limetree is in the business of an oil
refinery which makes interstate shipments, and that the Plaintiff was hired to guard that business there
would be no further discussion necessary
1% 9 As it is the Court is reviewing these motions with an eye for summary judgment Pursuant to
Rule 56(e), [i]f a party fails to properly support an assertion of fact or fails to properly address another
party’s assertion of fact,’ the Court can give an opportunity to address that fact or grant summary
judgment if the circumstances show that the movant is still entitled to it V l R Civ P 56(e) Though
a motion for summary judgment must include a statement of undisputed facts to which the nonmovant
must have an opportunity to respond, the Court finds that ordering the parties to provide such
statements and to conduct further briefing would be a waste of judicial resources and of the parties
time
1% 10 If the Court was to take this route, it would order the Defendants to submit briefs regarding the
interstate nature of the business that the Piaintiff was protecting The Defendants would do so and it
would only confirm what the Court has already determined that an oil refinery is necessarily engaged
in interstate commerce and that the guarding of such a facility affects interstate commerce by
protecting the business even if the employment agreement does not specifically state so The Court
can conceive of no additional facts, undisputed or otherwise, which are not already before it that would
affect the Court 5 ruling on the Defendants’ motions
13 11 The Court therefore finds that there is no genuine dispute as to any material fact and that the
Defendants are entitled to have their motions granted as a matter of law The Court more completely
finds as follows
Hendticks t Pinnacle er a] 2020 V 1 Super 037
SX 2018 CV I99
Memorandum Opinion
Page 6 of 8
ll 12 The Plaintiff is a former employee of Pinnacle She was hired as a security guard and assigned
to protect Limetree s facility, an oil refinery that transforms crude oil into other products and then
ships those products to other locations outside of the Territory
1% 13 On May 23 2018 the Plaintiff filed a Complaint against the Defendants alleging that she was
harassed and sexualiy assaulted at work She further alleged that after reporting the abuse the
Defendants took no action to resolve the Plaintiff‘s complaints and instead violated their own sexual
harassment policies by not maintaining confidentiality and by failing to discipline the employees who
had attacked and harassed the Plaintiff The Plaintiff further alleges that she was retaiiated against in
terms of work assignments and that she was ‘constructively discharged” on April 2, 2018 The
Complaint alleges wrongful discharge and discrimination in violation ofthe Virgin Islands Civil Rights
Act
1} 14 In the course of her employment the Plaintiff signed an Employment Agreement which
requires the arbitration of all disputes against the Defendants relating to her employment or termination
by Pinnacle and her presence at the Limetree’s facility The claims alleged in the Complaint fail under
the terms ofthe Employment Agreement, which also requires that the issue of arbitrability be arbitrated
into addition to any actual claims
1] 15 The Court further finds that the FAA applies to the Employment Agreement because it is
apparent that the Employment Agreement has an interstate nexus As a security guard the Plaintiff
was involved in protecting Limetree s facility thereby allowing it to continue engaging in interstate
commerce While the Plaintiff‘s Employment Agreement with Pinnacle is not an agreement in
interstate commerce it affects interstate commerce
1‘; 16 Moreover the parties have completely neglected to consider that the FAA is applicable to the
Virgin Islands through the Territorial Clause The Supreme Court’s analysis in Whyte v Bockmo
Hendricks \ Pinnacle e! a] 2020 V I Super 037
SX 2018 CV I99
Memorandum Opinion
Page 7 of 8
focused on the Commerce Clause has the vehicle for enforcement of the FAA in the Virgin Islands
However, the Supreme Court stated
Although the FAA applies to the states through the commerce clause it is not clear
whether the FAA applies to the Virgin Islands by way of the commerce clause The
United States Supreme Court has determined that the FAA applies to the states through
the Commerce Clause based on the legislative intent outlined in H R Rep No 96, 68'“
Cong lst Sess at l (1924) But the language in that House Report does not resolve
which powers Congress used in applying the FAA to the Virgin Islands Congress has
the authority to regulate the Virgin Islands through legislation under the Territorial
Clause The FAA, a legislation by Congress applies to ‘any territory of the United
States,’ including the Virgin Islands Hence because the FAA Is a legislation Wthh
plainly states that It applies to the Virgin Islands the Act may very well apply to the
territory by way ofthe Terrttorzal Clause
Whyte 69 V l at 759 60 (emphasis added) It is apparent that the FAA applies to the Virgin Islands
for the simple fact that it is an act of Congress applicable to U S territories by virtue of the Territorial
Clause and there is no need to continually search for an interstate nexus in contracts subject to
arbitration
1} 17 These facts findings and circumstances all indicate to the Court that there is no genuine dispute
that the Plaintiff‘s claims must be arbitrated pursuant to the Employment Agreement
CONCLUSION
1] 18 In sum the FAA applies to the Virgin Islands and specifically applies to the present matter
There is no cause to reach any other issue such as the federal preemption of 24 V I C § 74a or whether
this matter should be stayed or dismissed The Court intends to order the parties to arbitration and to
keep this case on its docket as a means of ensuring that arbitration takes place with minimal delay
Accordingly, it is hereby
ORDERED that Motions to Stay Proceedings and Compel Arbitration are GRANTED; it is
further
ORDERED that the parties confer and proceed to arbitration within THIRTY (30) DAYS It
is further,
Hendricks v Pinnacle et a] 2020 V I Super 037
SX 2018 CV 199
Memorandum Opinion
Page 8 of 8
ORDERED that the parties appear for a status conference on May 14, 2020 at 9 30AM in
Courtroom 206
DONE and so ORDERED this [aw/[day of March 2020
ATTEST
Tamara Ch 3 I
I, lW4 4
HAROLD W L WILLOCKS
M/
M/fl/A, //
/ 1 ,/
4'
Clerk oft ' . P iding Judge of the Superior Court
By
Dated I
. V Gr 1’ 044
v V