SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
JOSEPH MATHURIN, Case No SX 2006 CV 00627
PLAINTIFF, Complex Litigation Division
V Action for Damages
HESS OIL VIRGIN ISLANDS CORPORATION, Jury Trial Demanded
AMERADA HESS CORPORATION, AND SPX ‘
CORPORATION, AS SUCCESSOR IN INTEREST TO I
LITWIN CORPORATION, ‘
1
DEFENDANTS
1'
1
HESS OIL VIRGIN ISLANDS CORPORATION AND i
HESS CORPORATION F/K/A AMERADA HESS
CORPORATION, ,
THIRD PARTY
PLAINTIFFS,
v
ALLTITE GASKFT COMPANY, AUSTIN INDUSTRIAL,
INC F/K/A TECHNICAL MAINTENANCE, INC , i
AUSTIN TMI, INC AlND/OR AUSTIN INDUSTRIES, \
CONTROL ASSOCIATES, DARCOID INTERNATIONAL
A/K/A THE DARCOID COMPANY, INC A/K/A 1
DARCOID RUBBER COMPANY (N/K/A DARCOID
COMPANY OF CALIFORNIA), ELLIOT COMPANY, A 1
DIVISION OF CARRIER; GERARD PACKING &
BELTING CORPORATION, JOHN CRANE F/K/A
CRANE PACKING COMPANY (N/K/A JOHN CRANE, ‘
INC ), JOHN ZINK COMPANY N/K/A ZINKLAHOMA,
INC AND/OR JOHN ZlNK COMPANY, LLC, MADSEN
& HOWELL, INC , THE RALPH M PARSONS ‘
COMPANY (N/K/A PARSONS GOVERNMENT ‘
SERVICES, Inc F/K/A PARSONS INFRASTRUCTURE
& TECHNOLOGY GROUP, INC , AS SUCCESSOR IN
INTEREST TO THE RALPH M PARSONS COMPANY),
RARITAIN SUPPLY COMPANY, INDIVIDUALLY AND AS
SUCCESSOR IN INTEREST TO BRIDGE SUPPLY
COMANY, AND GASKET COMPANY OF
Mathmm 1 Hess 011 VI C011) er ((1
2021 VI Qupcr I [0
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PLERTO RICO, INC , STANDCO I&DLSTRIES, INC , I
STERLING PACKING & GASKET DIVISION,
STRAHVIAN VALVES, INC , UNION PLMP COMPANY ‘
(N/K/A CLYDELMON PLMPS), FOSTER WHEELER j
(N/K/A AMEC FOSTER WHEELFR), GENERAI ;
ELECTRIC COMPANY; RIGGERs & ERECTORS \
INTERNATIONAL, RIGGERS & ERFCTORS VIRGIN
ISLANDS, VIRGIN ISLANDS IhDLbTRIAL
MAINTENANCE CORP , 3M A/K/A MINNESOTA 1
MINING & MANLFACTL RING COMPANY , 3M
PL ERTO RICO, INC , }'
THIRD PARTY
DEFENDANTS ‘
Cite as 202l VI Supel 110
Appearances
THOMAS ALKON ESQ
Thomas Alkon P C
Christiansted VI 00820
For Jo seph Matlmrm
JERRY HUDSON EVANS ESQ
Rogers Patrick Westbrook & Brickman LLC
Mt Pleasant S C 29465
For J0 veph Matlmrm
CARL A BECKSTEDT III FSQ
Beckstedt & Kuczyns‘ki LLP
Christiansted V100820
For Hess 011 Vzrgm Islands Corporation and Hess Corporation
ANDREW C SIMPSON ESQ
Andrew C Simpson P C
Christiansted V100820
For SPX Corpomtlon and John ka Compam
DOUGLAS L CAPDEVILLE ESQ
Law Office of Douglas L Capdeville P C
Christiansted V100820
For Control Assocmtes
Marina!" \ Hess 011 VI C'mp e! a!
2021 VI Super [IO
Case No SX 2006 CV 00627
MEMORANDUM OPINION
Page 3 0% [8
MARK D HODGE ESQ
Hodge & Hodge
St Thomas V1 00802
For Parsons“ Gmemment Sena es [m
RICHARD H HUNTER ESQ
Hunter & Cole
Christiansted V100820
For R(mtan Supply Compan) Strahmcm Valves Inc Elliot Compam and General Elec rm Compan)
JOHN H BENHAM ESQ
BOYD L SPREHN ESQ
Law Office of John H Benham P C
St Thomas V1 00801
For Gerard Belting and Pm king Corporatzon Standc o Indusn 1e? Inc and Sterling Pm kmg & Gavket
Dmsmn
RYAN C STUTZMAN ESQ
CSA Associates P C
Christiansted V1 00820
For Austm 112611191; ml Inc f/k/a Ta him (1/ Mauztenance Inc Austm TM] 1m Amtm Industries Vugm
I91(11de Indmmal Mamtename Cmpmatton Umon Pump C0mpam RIggers & Era t0] 8‘ Internati
onal
Inc and RIggeI s & Ere: tom Virgin 191(1)de Corporation
MATTHEW P CERADINI ESQ
Ceradini Law PLLC
Raleigh NC 27615
F()I Ausnn Indmmal Inc f/k/a Tec 12mm] Maintenance Inc Austin TM] [m Aumn Industrlev Virgm
Islands Industrial Mamienam e Corpomtmn Unmn Pump Compam Riggers & Erec tors Intematm
nal
Inc and Rigger? & Erec tors Vzrgm Islands Corporatzon
EUGENIO W A GEIGEL SIMOUNET ESQ
GS Law Offices P C
Gallows Bay V100824
For Rubbe; & Gasket Compan) of Puerto RICO Inc
W MARK WILCZYNSKI ESQ
Law Office of W Mark Wilczynski P C
St Thomas VI 00804
For John Ciane Inc and Mather: & Hone]! Inc
JAMES L HYMES III ESQ
Law Office of James L Hymes III P C
St Thomas V1 00804
For Foster Wheeler LLC
Mat/uum 1 Hess 01] VI Corp eta! 2021 VI §uper 110
Case No 9X 2006 CV 00627
MEMORANDUM OPINION
Pace 4 0t 18
SIMONE R D FRANCIS ESQ
SOFIA L MITCHELL ESQ
Ogletree Deakins Nash Smoak & Stewart LLC
St Thomas V100802
For ?M Compam and ?M Puerto RICO Inc
MEMORANDUM OPINION
WILLOCKS Presiding Judge
‘l[l BEFORE THE COURT is a motion filed by Third Party Defendant Parsons Government
Services Inc (hereinafter Parsons ) to strike the Amended Third Party Complaint filed by Defendan
t“
Third Party Plaintiffs Hess Oil Virgin Islands Corporation (heieinafter HOVIC ) and Hess Corporation
(hereinafter Hess )(collectively Third Party Plaintiffs ) l 3 Third Party Defendants Control Associates
Gerard Packing and Belting Corporation Sterling Packing & Gasket and Standco Industries Inc join in
the motion to strike Third Party Plaintiffs oppose the motion The Court heard oral argument from
Parsons and Hess and HOVIC and took the motion under adyisement
‘112 The question raised here is not complicated does the language in Rule 41 providing that a
stipulation for dismissal signed by all parties who have appeared include former parties f0: it to be self
executing without action by the court The Court agrees with and joins the other courts that have held that
it does Accordingly for reasons explained further below the Court will deny Parsons s motion to mike
However because resolving the question Parsons raises may lead to the ultimate termination of this
litigation insofar as most if not all other Third Party Defendants filed their own motions largely seeking
' When the complaint was filed Hess was known as Amerada Hess Corporation Similarly inter the third party complaint
was
tiled HOVIC was acquired by Hess Oil New York Corporation To amid contusion the Court will continue
referring to Third
Party Plaintilis as Hess and HOVIC
’ By aoreement ot the parties and apprmal 0f the Court Parsons tiled an amended motion to which Third
Patty Plaintiffs filed
an amended response the etfeet of which was to withdraw the initial motion and response Additionally
after the amended
motion and response were tiled Third Party Plaintitls tiled an amended third party complaint The parties later
stipulated with
the Court 3 approval that Parsons 5 amended motion would be deemed to apply to the amended third party
complaint
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the same or similar relief the Court will certify the question of law for interlocutory appeal to the
Supreme Court of the Virgin Islands
I FACTUAL BACKGROUND AND PROCEDURAL HISTORY
‘]{3 Neither the factual background nor the procedural history of this case is in dispute In 2006 two
groups of cases were filed by persons who had worked at the former oil refinery on St Croix The
first
gioup of cases a total of forty three was filed in February 2006 The second group of cases a total of
thirty one was filed in October 2006 In between February and October 2006 Litwin Corporation
(hereinaftei Litwin ) had dissolved and ceased to exist The plaintiffs in the fiist group of cases named
Litwin as a defendant The plaintiffs in the second group of cases could not So instead they named SPX
Corporation (hereinafter SPX ) as Litwin s successor in interest Litwin appeared in the first group of
cases answered the complaints and filed third patty complaints For teasons unclear from the record
Litwin s alleged successo: SPX did not answer the complaints in the second group of cases Instead
SPX thiough different counsel stipulated with each plaintiff in the second group including Joseph
Mathurin (the plaintiff in this case) to a dismissal Once SPX was dismissed from the second group
of
cases Hess and HOVIC were the only remaining defendants
‘][4 A master case was opened in August 2007 under the caption In re Refinery Dust Claan to
coordinate pre trial pioceedings in both groups of cases In Febtuary 2012 Mr Mathurin filed an
emergency motion within this case requesting an immediate trial date due to his failing health which this
Court subsequently granted over Hess and HOVIC s opposition See generally In re Refmen Dust
Claims SX 2006 CV 00078 2012 V I LEXIS 109 (V I Super Ct Apr 30 2012) (denying
reconsideration of order scheduling jury selection and trial) Jury selection and trial was later cancelled
however when Mr Mathurin notified the Court that his claims were being amicably resolved and trial
was therefore not necessary
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(115 On August 21 2013 all remaining patties to the first party ligation namely Hess HOVIC and
Litwin (SPX having been dismissed) as well as all Third Party Defendants who had appeared on Litwin 3
third party claims jointly filed a stipulation in the mastet case agreeing to dismiss all claims against all
parties Multiple proposed orders were attached and signed dismissing both on a global basis and
individually in each case all claims against all remaining patties By the end of Auguet 2013 seventy
three of the seventy four Refinen Dmt Claims cases had been diemissed entirely between all parties who
had appeared and had not been previously dismissed For reasons unclean from the tecoxd howevet Mr
Mathurin 5 case was not included among the cases to be dismiased by the August 21 2013 stipulation In
fact it would not be for another two years or until April 15 2015 that the parties stipulated to dismiss
Mr Mathurin s Llaima against Hess and HOVIC Again for reasons unclear from the iecord the April 15
2015 stipulation which was filed in the master case as well a9 Mr Mathurin 5 individual case was signed
by Hess and HOVIC but also by Litwin and Litwin 5 Third Party Defendants who were never parties
to M1 Mathurin s case because Mr Mathurin did not sue Litwin diiectly Rather he had sued SPX as
successot t0 Litwin SPX who appeared in 2006 only to be dismissed did not sign the April 15 2015
stipulation
916 This Court (to whom the Refinery Dust Claims cases were assigned at the time) held off on
apptoVing the April 15 2015 stipulation in Matlmrm until other issues were resolved See In re Refinerx
Dust Claims Master Case No SX 06 CV 78 2016 V I LEXIS 48 7 n 8 (V I Super Ct May 3 2016)
( The Court withheld signing off on the stipulation and dismissing Plaintiff Joseph Mathurin 5‘ lawsuit
until the miscellaneous filings under the master docket and each plaintiff‘s individual docket are
addressed ) Among the issues to be resolved was a motion that Hess and HOVIC had filed in the master
case on April 1 2011 for leave to file a third party complaint Hess and HOVIC had represented in an
April 22 2015 informative notice that their [hild party complaint motion was still pending This Court in
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a May 3 2016 Memorandum Opinion and Order later granted Hess and HOVIC s motion The Opinion
and the Order were slightly in conflict in that the Opinion directed that Hess and HOVIC should file one
third party complaint in each of the seventy four cases grouped under this master case But the [O]rder
accompanying the [O]pinion had said that the third party complaint was deemed filed and should be
served In re Refinery Dust CIamzs Master Case No SX 2006 CV 078 2020 V l LEXIS 67 l 2 (V I
Supei Ct Apr 25 2020) Understandany Hess and HOVIC were unsure how to proceed Rather than
err on the side of caution and file seventy fou1 third party complaints they [moved {01 clarification and]
awaited a ruling Id at “‘2
917 In the interim the Complex Litigation Division of the Superior Court of the Virgin Islands was
established and all complex cases including the Refinery Dust Chums cases wele transfeired to the new
division and leassigned to another Superior Court judge That Couit (Molloy J ) later clarified this Conn s
May 3 2016 Memorandum Opinion which had granted Hess and HOVIC leave to file third party claims
and also vacated the Opinion in pan The Court summarized the proceedings after transfer to the Complex
Litigation Division as follows
The Court granted [Hess and HOVIC s clarification] motion and clarified that one
third party complaint per case should be filed The Court also scheduled a status conference
for December 11 20l9 But upon further 1eflection and after reviewing the individual
cases in advance of status conference the Comt realized that Hess and HOVIC had been
dismissed by stipulation from every cage except one Mathurm before the Court issued
it[§] May 3 2016 Opinion Mathurm was still pending when the Court issued its May 3
2016 Opinion So the Court concluded that Hess and HOVIC could [only] proceed with
their third party claims in that [one] case After conducting its review the Court cancelled
the status conference and issued the December 13 2019 Opinion vacating [in part] the May
3 20l6 Opinion The Count concluded in essence that it could not permit ancillary
litigation since all third party claims are subordinate to first party claims to proceed in
cases that were effectively closed just not on the Court 9 docket Cf. In re Refinery Dust
Claims 72 V I 256 260 ( Granting Hess and HOVIC leave to file third party complains
in closed cases was in error )
Rather than file seventy three new complaints or seventy three notices of appeal Hess
and HOVIC instead asl<[ed] the Court to vacate its December 13 2019 Opinion reinstate
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the May 3 2016 Opinion and permit them to file seVenty three third party complaints
Parsons a non party who would become a third party in Mathmmfl once Hess and
HOVIC served it with process filed a motion for partial reconsideration and several
ancillary motions to extend time and exceed briefing limits Hess and HOVIC consented
to the ancillary motions for more time and more pages but opposed and moved to strike
Parsons [s] reconsidelation motion Id at *2 3
‘ll8 The Court (Molloy J ) then granted Hess and HOVIC s motion to strike Paxsons s motion for
teconsideration but denied Hess and HOVIC s motion f0: relief from the December 13 2019 Opinion
and Order The Court reasoned that Parsons as a nonparty could not preemptively block a party from
filing a complaint See generally 1d at *8 9 ( By asking the Court to reconsider its decision to allow the
third party claims to proceed in Mathurm Parsons is trying to block Hess and HOVIC from filing their
complaint The way to do that is by moving to dismiss (11%) the complaint has been filed All the arguments
Parsons raised in its motion to reconsidet can be asserted in a motion to dismiss filed in Mathwm
(emphaeis added» And Hess and HOVIC % motion for relief had no merit the Court concluded See 1d
at >”4 ( All the argument in the world would not change the procedural posture of these cases namely that
Hess and HOVIC had been dismissed horn all but one case Matluum long before the Court issued its
May 3 2016 Opinion ) see (1190 Id at * 6 7 ( Next Hess and HOVIC contend that the Court abused its
discretion when it concluded that the motion for 1eave to file a third party complaint may have been
implicitly denied when the Court approved the stipulations dismissing Hess and HOVIC Even if that is
correct the Court may have abused its discretion when it approyed the [August 21 2013] stipulations
and dismissed Hess and HOVIC from the Group Two cases without ruling on the {April 1 201 l] motion
for leave to file a [hild party complaint first Neither the May 3 2016 Opinion nor the December 13 2019
Opinion could fix that error ) Thus the Court denied relief from its December 13 2019 Opinion and
struck Parsons s motion for reconsideration
(119 Parsons repackaged its reconsideration motion and refiled it in Mathurm as a motion to strike the
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third party complaint Hess and HOVIC iesponded in opposition Gerard Packing and Belting
Corporation Sterling Packing & Gasket Standco Industries Inc and Control Associates joined in
Parsons s motion All but Gerard Packing and Belting Corporation had also answered Hess and HOVIC s
third party complaint before joining the motion to strike
II DISCUSSION
‘1[10 Rule l4(a)(l) of the Virgin Islands Rules of Civil Procedure piovides that [a] defending party
may as third party plaintiff serve a summons and complaint on a nonparty who is or may be liable
to it
for all or pant 0f the claim against it If the defendant 9 original answer was flied more than fourteen
days eailiet then the [defendant /] third party plaintiff must by motion obtain the court s leave
Here Hess and HOVIC each filed an answer on November 2 2006 The time to implead nonparties by
third party compIaint had long passed by Aplil 1 2011 when they sought leave of court Leave
was
granted initially by the May 3 2016 Memorandum Opinion and Ordel as modified by the December 13
2019 Memorandum Opinion and Ordel The Third Party Complaint was filed on January 9 2020 and
amended on May 28 2020
‘1111 Parsons moved pursuant to Rule 14(a)(4) to strike Hess and HOVIC 5 amended third
party
complaint Rule l4(a)(4) provides that {a]ny party may move to strike the third party claim to sever
it
or to try it separately To date no court in the Virgin Islands has considered when Rule 14(a)(4) applies
Federa1 courts have acknowledged that motions to strike may be motions to dismiss in disguise See
eg
Stanza Farrah Oflue LLC t M(Cullar 765 F Supp 26 1036 1046 (W D Tenn 2011) ( Where a
motion argues that a party is not entitled to the relief he seeks it is construed as a motion to dismiss
even if the motion is denominated a motion to strike ) Cf. Alkon 1 Kmkendall 70 V I 509 (Super Ct
2019) (denying motion to strike third party comp1aint) In this instance for example Parsons 3 moved
to
strike Hess and HOVIC 5 third party claims while othel Third Party Defendants moved to dismiss
it
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Piesumably if a court stiikes third party claims the claims mat have to be struck for all third patty
defendants But cf. Caplen t Smrge 35 F R D 176 177 (E D Pa 1964) (finding waiver of objections to
joindei of third patties by filing answer and participating in litigation) ( [T]he third party defendant in this
action has completely waived any objections to its joinder by filing an answer demanding a jury trial and
joining a fourth party defendant ) Thus before addressing the substance of Parsons s at guments
the
Couit must first consider whether Parsons s motion to stiike the Amended Third Party claims Complaint
should be construed as a motion to dismiss There is little piecedent directly on point in this area Thus
the Court must rely on general principles to draw specific conclusions
‘l[l2 Motions to Strike go to the form of a pleading while motions to dismiss concern substance See
6 g M( C(111(1) 765 F Supp 2d at 1046 ( Courts have held that a motion to stiike is an inappropriate
procedural mechanism to Challenge an allegation in a complaint that is not iedundant immaterial
impertinent 01 scandalous or that does not state an insufficient defense (citation omitted» accord
Outline 1 Honland 73 N E 259 262 63 (Ind 1905)( [Ht is error to mike out acomplaint on the ground
that it does not state facts sufficient to constitute a cause of action [l]f the facts stated ate not sufficient
to constitute a cause of action the plaintiff has a right to amend his complaint so it will state a cause
of
action This he could not do if the pleading was stricken out The same rule applies to a 01099 complaint
(citatiom omitted» See also Pack & PFOC€S‘S Inc 1 Celotex Corp 503 A 2d 646 660 (Del Super Ct
1985) ( A motion to strike differs from a motion for summary judgment in that a motion to strike
will
reach formal defects only while on a motion for summary judgment the sufficiency of the pleadings in
matters of form as well as substance will be tried ) In addition once a pleading is stricken it is struck
in its entirety See e g Kahle 1 Crown Oil Co 100 N E 681 685 (Ind 1913) ( When a pleading is
stricken out it cannot be amended for it is out of the record The party then must either reserve the
question by a bill of exceptions and seek ielief in th[e appellate] court or obtain the leave of the [trial]
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court to file another pleading (citation omitted» Bergen Twp 1 Nelson Ct) 156 N W 559 559 (N D
1915) ( If a complaint is stricken from the files without leave to SCIVE: an amended complaint
it in effect
amounts to a dismissal or termination of the action ) It follows then that if a pleading i9 stricken
from
the tecord it must be stlicken as to all opposing parties including non moving parties Generally speaking
the pleadings control the case setting the parameters for discovery Cm (m Tires 1 Gov I 0] the
VI No SX 18 CV 042 2018 VI LEXIS 91 12 (V I Super Ct Sep 5 2018) A pleading cannot be
both of tecoxd and not of record controlling as to some but not all opposing parties
‘l[l3 Concerning third party litigation a motion to strike also differs from a motion to dismiss in one
further aspect A defendant must obtain leave to file a third party complaint if the time to file as of right
has pasfied S‘ee V I R Civ P l4(a)(1) ( A defending party may as thitd party plaintiff setve a summons
and complaint on a nonparty who is 01 may be liable to it f0: all or part of the claim against it But
the
third party plaintiff must by motion obtain the court 3 leave if it files the third party complaint more
than
14 days after serving its original answet ) Consequently when a party challenges the circumsta
nces
upon which leave was granted not the merit of the thud party claims the pi ope: procedure is to move
to strike not to dismiss Any party may move to strike the third patty claim V I R Civ P l4(a)(4)
If any party desires to test the propriety of an order permitting a third party to be brought in the proper
procedure is to move to vacate such order Falwne 1 Cm of N Y 2 F R D 87 89 (E D N Y 1941)
(quoting Sannkt Holland Tnmhp 28 F Supp 67 (D N J 1939)) (moral Murphy 1 K6116! Indm
201
F R D 317 319 (S D N Y 2001) ( The Rule thus authorizes a motion by the impleaded party challengi
ng
the district court 9 prior decision to allow the defendant to implead the third party defendant ) Crlm
1
Lumbermens Mm C03 C0 26 F Supp 715 718 (D D C 1939) ( The third party complaint does. state
a
claim upon which relief can be gtanted Counsel do not urge the first ground of the motion to dismiss
but
contend that the point raised by the motion to dismiss is simply this that the claim set forth in the
third
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patty complaint is different from the claim set forth in the declaration and therefore the third party
complaint is improperly filed under the tennis of Rule 14 The bettet plactice in this instance would seem
to be a motion to vacate the order granting leave to file the third party complaint and to strike the
complaint The motion to dismiss therefore will be treated as a motion to vacate (Citation omitted»
Accotdingly this Court holds that under Rule l4(a)(4) 0f the Virgin Islands Rules of Civil
Procedure a
motion to strike a third party complaint targets the propriety of an earlie: order granting leave to implead
nonparties Since Parsons challenges the Court 3 decision to grant Hess and HOVIC leave to file a third
patty complaint its motion seeks to strike the Amended Third Party Complaint not to dismiss it for failure
to state a claim for relief
(1114 The joinder in Parson s motion by Sterling Packing & Gasket Standco Industries Inc and Control
Associates is concerning however because all three answered Hess and HOVIC 5 third patty claims
before joining the motion to mike Ptesumably by answering a third party complaint a thitd party
defendant waives the right to move to sttike Cf Ark Bankers sze [m C0 1 Tomezlm N0 CA99 114
1999 WL 1096106 *2 (Ark Ct App Dec l 1999)( Cases undet the similat Fed R Civ P 14 have
held that the objection to an imptoperly filed third party complaint must be timely (collecting cases»
See aim Colonial Pipeline C0 L A10 Specialty Ins CO No 1 19 CV 00762
2020 WL 2615560 *8
(N D Ga May 22 2020) ( Under the unambiguous mandatory language of Rule 12(b) a motion to
dismiss must be made before an answer is filed The same deadline is widely thought to govern Rule 14
motions to dismiss (citation omitted» But as noted earlier a pleading cannot be pending against some
but not all opposing parties Said differently since the Third Party Plaintiffs did not object to their joinder
and the Court cannot strike Hess and HOVIC 5 Amended Third Party Complaint as to Parsons While
leaving it on file as to the remaining Third Party Defendants the Court finds no prejudice or harm here in
Sterling Packing & Gasket Standco Industries Inc and Control Associates having joined in Parsons s
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motion after having answered the thitd party claims
‘l[15 Turning to the merits Parsons moves to strike Hess and HOVIC 8 Amended Third Party
Complaint for one reason this case was effectively closed before leave was granted To explain Hess
and
HOVIC had filed their motion in the master case for on April 1 201] leave to file a third patty complaint
Apploximately two years later on August 21 2013 all parties who had appeared in the Reflnen Duct
Claan cases (and who had not been dismissed like SPX) filed the global stipulation in the master case
to
dismiss all cases except Matlzurm ‘ Hess and HOVIC s motion was still pending when the global
stipulation was filed and had not been ruled on before the Court approved the stipulations and issued
seventy three Olders one f01 each individual case Hess and HOVIC s motion remained pending on
Aptil
15 2015 when Mr Mathurin Hess and HOVIC joined by nonparties to this case such as Litwin and
Litwin 9 Third Party Defendants UOP LLC Shell Oil Company Riggers & Erectors International
Inc
Viigin Islands Industtial Maintenance Coxporation and Chicago Bridge & lion Company filed a
stipulation to dismiss this action Although the April 15 2015 Stipulation was not approved until Januat y
19 2017 and by then the Court had issued its May 3 2016 Memorandum Opinion granting Hess and
HOVIC leave to file a thitd party complaint Parsons maintains that was in error because this case was
alieady closed
$16 Parsons maintains that this case was closed on April 15 2015 because the stipulation was self
executing Pursuant to Rule 41 the plaintiff may dismiss an action without a court order by filing a
Stipulation of dismissal signed by all parties who have appeared V I R Civ P 41(a)( l)(A)(ii) 4 Hess
‘ Again why this case was not included is unclear but perhaps the parties believed it had been dismissed
shortly after thejury
trial was Laneelled Nonetheless nothing formal was filed by the parties stating that Hess and HOVIC
the only two parties
remaining in this case alter SPX was dismissed had settled with Mr Malhurin
4 At the time when the parties tiled the April 15 2015 Stipulation Rule 41 0f the Federal Rules 0t Civil
Procedure applied
through Superior Court Rule 7 prior to the adoption of the Virgin Islands Rules of Civil Procedure
However because the
Virgin Islands Rule mirrors the Federal rule the Court cites to the loeal rule to avoid contusion
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and HOVIC had appeared in this case and Hess and HOVIC signed the stipulation filed on April 15 2015
Although SPX had also appeared but did not sign the stipulation Parsons maintains that SPX did not
have to sign because SPX had been dismissed nine years eatiier in 2006 And herein lies the problem
As noted initially this Court withheld signing off on the stipulation and dismissing Plaintiff Joseph
Mathurin s lawsuit until the miscellaneous filings undei the mastei docket and each plaintiff s indixidual
docket [we]re addressed [/2 re Refmen Dust Claws 2016 V I LEXIS 48 at 7 n 8 After granting Hess
and HOVIC s motion the Couxt then apploved the April 15 2015 Stipulation Another Superi01 Court
judge realized after Closer review that all the cases grouped under the Refinen Dust Claims master case
except this case had been closed either when the global stipulation was filed (assuming SPX did not have
to sign) or when this Court approxed the stipulation and issued the seventy three orders However
because this Count had not approved the April 15 2015 Stipulation until January 19 2017 after granting
Hess and HOVIC s motion for leave to file a third party complaint the other Superior Court judge
concluded that the May 3 2016 Memorandum Opinion and Order was effective only for Mathurm because
SPX did not sign the April 15 2015 Stipulation In other words the Stipulation was not effective without
court ordet because it was only signed by Mr Mathurin Hess and HOVIC but not SPX It became
effective when the Court approved it on January 19 2017 and by then the Court had granted Hess and
HOVIC leave to file then third party complaint
(1117 In [econsidering and partially vacating this Court 9 May 3 2016 Memorandum Opinion and Order
the othei Superior Court judge relied in part on In re Alumma Dust Chums 71 V I 443 456 (Super Ct
2019) which held that a stipulation for dismissal must be Signed by all parties who have appeared
which includes former or dismissed parties Since the April 15 2015 Stipulation was not signed by SPX
it was not self executing Parsons disaglees Parsons contends that dismissed parties should no longer be
considered parties f01 Rule 41 purposes Parsons raises several legitimate concerns with a plain language
Marhmm l Hess Oil V] Corp er 2!! 2021 VI Super 1 10
Case No SX 2006 CV 00627
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reading of the rule As Hess and HOVIC point out in opposition some of Parsons advisory committee
like comments are appealing and DUI Supieme Court may want to consider revising Rule 41(a) to
accommodate Parsons interpretation and avoid what Parsons chatacterizes as unwieldly consequences of
the current rule language (Defs / Third Party P13 Resp in Opp n to Parsons 5 First Am Mot t0 Stiike
2 filed July 28 2020) But again that is a mattei f01 our Supreme Court in its neutial capacity to
promulgate rules[ 1 as Third Party Plaintiffs correctly point out Id
‘l[18 What Famous misundelstands is that dismissed parties technically remain patties for some
purposes until a final Olderie entered Cf. Hmch 1 Wmhoua Bank NA N0 4 10 CV 0191 HLM 2011
U S Dist LEXIS 166860 *4(ND Ga Aug 29 2011)( [T]he Motion to Strike fails on its merits First
because the Court has not entered a final judgment in this matter Wachovia and Wells Fargo technically
[emain patties to this litigation )' EHIIZSI‘ON Ins Co L Oea Inc No CW S 02 1505 DFL PAN 2004
U S Dist LEXIS 33856 7(ED Cal Nov 19 2004)( Although the Rules do not define the term party
it is Clear that Evanston (and all oil“); parties whose damn have been resolted 0n summari judgment)
remain parties to this case (emphasis added» In re Agent Orange Prod Lzub Mtg 95 F R D
192 194 (E D N Y 1982) ( Until such a final judgment is entered the goveinment is still a party to these
actions ) The reason why is clear an order dismissing lewei than all parties is interlocutory and can be
vacated at any time Thus dismissed patties can 31% ays be reinstated in the action on proper grounds Cf.
Island Tile & Marble LLC 1 Bertrand 57 V I 596 (2013)
[1119 But perhaps more importantly a plaintiff dismissing an action by filing a stipulation signed by all
parties who have appeared is one of the rare occasions in the life of a case where the power to act on that
document is taken away from a trial count judge Understandany courts strictly enforce the language of
the rule to avoid confusion and the potential for abuse See e g N(uaiette 01mm 1 Worthmgton Indus
N0 19 1083 JTM 2020 U S Dist LEXIS 148743 1 (D Kan Aug 18 2020) ( The plain words
Mariam]: 1 Hess 011 V1 Corp er (I!
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themselves of Rule 41(a) tequhe that a stipulation for dismissal be signed by all parties who have
appeared in the action A stipulation not signed by the plaintiff does not satisfy the requirements of Rule
41(a)(1)(A)(ii) (citation omitted» Strtplm l Vaughn & Sons Truckmg LLC N0 CIV 19 57 G 2019
U S Dist LEXIS 215794 4‘2 (W D Okla Dec 16 2019) (finding stipulation for dismissal ineffectiv
e
because it was not signed by one of three plaintiffs or one of several defendants)
3120 Several federal and Virgin Islands courts haw tecognized that dismissed parties remain parties for
putpos‘es of signing a self executing stipulation for dismissal See Alumma Dust Chums 71 V l at 456
Jonest L()(klzeedMart1n Corp 68 V I 158 186 n 10 (Super Ct 2017)’ Celia": Underwriters
at Lloxd’s
London 1 Boquemn Conzmun Grp (VI ) Inc Civil Action No 2013 0062 2020 U S Dist LEXIS
241171 2(D VI Dec 23 2020) Cf. Andermn Tullt C0 1 Fede/al 1119 C0 347F Appx 171 (6th Cir
2009) Tan (mum Gold Corp 1 Crede CG 1]] Ltd No 18 CV 4201 (LJL) 2021 U S Dist LEXIS
7652
at *3 (S D N Y Jan 13 2021) (ease closed in enor because dismissed defendant 5 sanctions motion
remained pending stipulation purportedly signed by all who remained was ineffective) Allmlm I Am
SS Co 167 FR D 75 79 80 (D Minn 1996) (stipulation not self executing when not signed by
dismissed defendants) ( lndisputably the Stipulation at issue has not been executed by the Medical
Defendants who with equal certainty have appeared in the action Although the Plaintiff appears to
contend that no particular meaning attaches to this language we are not satisfied that those who chose to
employ this qualifier intended it to be a mere nullity ) afld No 5 94 CV 19 1996 U S Dist LEXIS
7229 (D Minn Feb 16 1996) See also SEC 1 One Or More Unknown Purchasers of Sec of Glob
Indus No 11 CiV 6500 2014 U S Dist LEXIS 71301 10 n 2 (S D N Y May 23 2014) (collecting
cases regarding divergent applications of rule) see 8 James Wm Moore et a1 Moore 3 Federal Prac me
Cm] § 41 34 (2021) ( Even previously dismissed defendants must sign the stipulation of dismissal )
(1121 This Court agrees with the reasoning espoused by a District Courtjudge in another complex multi
Mariam!) \ Hess 0t! VI C021) er a1 2021 VI Super 110
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patty case rejecting similar arguments as Parsons offers here In Etetett v BRP Powerful": GmbH &
Co
KG 282 F Supp 3d 1063 1066 67 (E D Wis 2017) (citation omitted) the United States District
Court
for the Eastern District of Wisconsin reasoned that
Rule 41 is ambiguous as to what it means by all parties who have appealed It is
reasonable to interpret this language as applying only to parties who have not already
been dismissed from the case as of the date the stipulation is filed This reading of the rule
is supported by the fact that parties who are dismissed from a case usually are no longer
considered parties for purposes of the federal rules For example Rule 5(a) requires
service of papers on every party yet it is unlikely that a court would interpret this rule to
require serVice on parties who have long been dismissed from the case But it is also
reasonable to interpret the phrase all parties who have appeared to include parties who
have appealed in the case but have since been dismissed by nonfinal orders Dismissed
parties once were parties and if they haVe appeared in the case it is no abuse of language
to describe them as parties who have appealed
The defendants contend that my reading of the parties who have appeared
language would produce absurd results in that in yeats long complex multi defendant
litigation the last settling defendant would have to track down and obtain written consent
from eVery defendant to have ever appeared in the case before the case could be dismissed
without a court order under Rule 41(a)(l)(A)(ii) But I do not find this result absurd
Although the plaintiff and the last defendant could not use a stipulation of dismissal to end
the action without obtaining consent from the pet iously dismissed defendants the plaintiff
could still file a motion to have the court dismiss the action under Rule 41(a)(2) and the
court could grant that motion without teceiving the consent of the previously dismissed
defendants Moreovei it makes sense to tequire a plaintiff to obtain the consent of a
pieviously dismissed defendant before he or she may Voluntarily dismiss the action A
dismissal under Rule 41(a) can be without prejudice A previously dismissed defendant
may have obtained a dismissal on the merits say pursuant to a motion for summary
judgment but unless ajudgrnent were entered in that defendant 9 favor under Rule 54(b)
the dismissal would be nonfinal If the plaintiff and the remaining defendant thereafter
stipulated to a dismissal of the action without prejudice the plaintift could file a fresh
action against the previously dismissed defendant and possibly the nonfinal order entered
against that defendant would have no preclusive effect in the new action Thus requiring
the consent of the previously dismissed defendant pievents the voluntary dismissal from
causing prejudice to that defendant And protecting defendants from prejudicial voluntary
dismissals is one of the purposes of Rule 41(a) It is thus consistent with the rule 5 purpose
to require previously dismissed defendants to sign a stipulation of dismissal of the action
Eterett offers several compelling points for concluding that dismissed parties so long as they appeared
must sign a stipulation for dismissal for it to be self executing without a court order
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(1122 However the most compelling reason is the fiimplest the plain language of the rule The canons
of construction in statutory interpretation apply equally to the interpretation of court procedural rules
Whn‘e t 30c kmo 69 V I 749 754 (2018) The plain language of Rule 4l(a)(l)(A)(ii) does not
include
the language that Parsons wants it to include all parties who have appealed and have not been dismissed
Consequently this Court believes that it would be necessary to amend the language of the iule to reflect
that inteipretation theteby ensuring that the meaning of the rule is unambiguous and putting all parties
to future suits on notice Id at 756
tH23 Nonetheless as the E1 erett couit acknowledged Rule 41 may be ambiguous as to what all
parties means While this Court and several others found no ambiguity the Court concedes that a
contrary interpretation would terminate this litigation Therefore because this question is controlling and
is strictly a legal question the Count will ceitify t0 the Supreme Court of the Virgin Islands whether the
language all parties who have appeared in Rule 41(a)(1)(A)(ii) includes dismissed patties Ifthe
Virgin
Islands Supreme Court concludes that it does not then the Amended Thiid Party Complaint might have
to be stricken as to all Third Patty Defendants which would terminate this litigation in its entirety
III CONCLUSION
‘][24 For the reasons etated above Parsons s motion to strike will be denied However because the
answer to the question Paisons raises may be controlling the Court will certify it for interlocutory appeal
mix
DONE this day of November 2021 : Z 7 47% M
HAROLD W L WILLOCKS
ATTEST Presiding Judge 0f the Superior Court
Tamara Charles
Clerk of the Court
By / Z.
Court Cl
Dated 1/ Z [Z ZOE!