FOR OFFICIAL PUBLICATION
SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
JUAN CASTILLO STIRLING CANNONIER J CASE NO SX 09 CV 299
ANDREW BRIDGEWATER ELISHA J
MONDESIR ROGER CAUL JULIAN THOMAS J
TIMOTHY DANIEL FELTON WARNER LUIS J COMPLEX LITIGATION DIVISION
FULGENCIO JOHN STEEDLEY OLIVER J
MARCELLE ELI RODRIGUEZ GRANTLEY J
YOUNG ORAL STANLEY GERALD WELLS J JURY TRIAL DEMANDED
AUBREY MACEDON SABINO FELIX J
CASTILLO ANDRES NIEVES JR ROQUE J
MELO POLANCO ALBERT WILLIAMS J
DAVID GRIFFITH ANTONIO GEORGE J
ANDREA FREEMAN NESSIE SMITHEN J
FRANCIS CECIL COKER JR PATRICK J
CHARLES WILFRED CANTON GREGORY J
BODLEY STACY ANDREW REGINALD J
WILLIAMS FRANCO ALVAREZ MAGDALENE J
WILLIAMS HORATIUS POPO VANCE ALEX J
PEMBERTON PETERSON MASSICOT J
COLLINS MCNEAL MATTHEW STEVE J
JAVOIS RICHARD INCE MIGUEL J
ENCARNACION DESMOND EMANUEL J
OMARI DALEY MAURECIO COMMABATCH J
JERRY O REILLY TRENT WILLIAMS DENNIS J
ANTONIO FERDINAND RICKY CALEB J
KENNETH WILLIAMS GILBERTO CAMACHO J
STEADFORD BUFFONG CLIFFORD J
EMMANUEL STEVE TINDELAND MALCOLM J
FABIO JR MIGUEL FIGUERGOA PETER J
CUFFY WULSTON PAUL JOSEPHAT J
EDWARDS OVIDIO AQUINO VINCENT J
ADAMS JR PAUL STEPHEN HENRY ORTIZ J
DWIGHT BROWNE SHERN MAYNARD J
PETER COLE JOSEPH OSCAR MARCELLUS J
PHILLIP JEFFERY NATIONS SYRON PETER J
BLAKE VIVIAN LAWRENCE BEDIHUGGINS J
EUSTACE CHARLES MIGUEL BERMUDEZ J
PIUS AURELIEN DENNIS JULES SIMONE J
ABRAMSON PETER GEORGE MITCHE J
MATTHEWS BENEDICT AUSTRIE DALE J
ORRIN CONNOR MANUEL REYES SYDNEY J
SEALEY MIGUEL CAMACHO JUNIOR J
RICHARDS BARRY HALL BRENT J
WILLIAMS JONATHAN SANTIAGO J
Castillo, et a! v St Cram BasmServs Inc et a! 2020 VI Super 35
3x 09 CV 299
MEMORANDUM OPINION
Page 2 of 35
GONZALES DAVID ALEXANDER HUGH )
EVANS and VAUGHN NEVIN WARNER )
I
)
Plaintiffs, )
I
V I
I
ST CROIX BASIC SERVICES INC BASIC )
INDUSTRIES INC HOVENSA LLC and )
AMERADA HESS CORPORATION )
)
Defendants )
J
Cite as 2020 VI Super 35
Appearances
LEE] ROHN ESQ
RHEA LAWRENCE ESQ
Lee I Rohn and Associates, LLC
Christiansted V1 00820
For Plaintiffs
GEORGE H LOGAN ESQ
CHARLES E LOCKWOOD ESQ
CRAIG M O SHEA ESQ
Dudley Newman Feuerzeig, LLP
Christiansted V100820
For Defendants St Crozx Baszc Serwces Inc and Baszc Industries Inc
CARL A BECKSTEDT III ESQ
EMILY SHOUP ESQ
Beckstedt & Associates, P C
Christiansted VI 00820
For Defendants HOVENSA, LLC and Amerada Hess Corporation
MEMORANDUM OPINION
MOLLOY judge
1[1 BEFORE THE COURT are motions filed by Defendants St Croix Basic Services Inc ( St Croix
Basic ] and Basic Industries Inc ( Basic Industries ) for iudgment on the pleadings and by
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MEMORANDUM OPINION
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Defendants HOVENSA LLC and Amerada Hess Corporation to dismiss for failure to state a claim for
relief Each argues that the complaint filed on june 18 2009, must be dismissed because it seeks
relief for events that took place on or before lanuary 31, 2003, more than six years before this case
was commenced Thus the limitation period has run on every conceivable claim (Def St Croix
Basic Servs, Inc 5 Mot for jgmt on the Pleadings 1, filed july 20, 2009) Plaintiffs opposed claiming
American Pipe should toll the applicable statutes of limitations because they were putative class
members in a District Court of the Virgin Islands ( District Court ) action Errol Stanley at a] v St
Crorx BascherVIces Inc eta] Case No 2003 cv 055 See ChmaAgritech Inc v Resh 1383 Ct 1800
1804 (2018) ( The Court held in American Pipe that the timely filing of a class action tolls the
applicable statute of limitations for all persons encompassed by the class complaint Where class
action status has been denied members of the failed class could timely intervene as individual
plaintiffs in the still pending action {or} bring an individual suit rather than intervene
(brackets omitted) (citing American Pipe & Constr Co v Utah 414 U S 538 (1974] quoting Crown
Cork&SeaICo v Parker 462 U S 345 350 51 (1983)) see also Stanley v St Craix Baszc Servs Inc
Civ No 2003/0055 2008 U S Dist LEXIS 107702 (DVl Mar 4 2008) (affirming magistrate sdenial
of leave to amend complaint to add individual plaintiffs] (hereinafter Stanley II ) see also Stanley
v St Croat Bastc Servs Inc Civ No 2003/0055 2008 US Dist LEXIS 90024 (DVI Oct 31 2008]
(denying motion to certify class and denying motion to certify for interlocutory appeal order
affirming magistrate) (hereinafter Stanley III ) Defendants disagreed claiming Plaintiffs waited
too long to file suit
112 Both sides initially assumed that American Pipe controls It does not Accord Bell v Showa
Denko KK
899 S W 2d 749 757 (Tex Ct App 1995) ( We do not agree thatAmerican Pipe operates
to toll our state statute of limitations That case concerned the question of whether a federal
statute of limitations was tolled for the purpose of filing a federal claim (emphasis added))
Instead the question one of first impression is whether the Virgin Islands should recognize class
action tolling lntra jurisdictional class action tolling is a rule whereby a court tolls the statute of
limitations based on the filing of a class action within that same jurisdiction Cross iurisdictional
class action tolling is a rule whereby a court in one jurisdiction tolls the applicable statute of
limitations based on the filing of a class action in another jurisdiction Adedje v Westat Inc, 75
Castillo, et a] v St Crozx Baszc Sen/s Inc et a]
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MEMORANDUM OPINION
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A3d 401 411 (Md Spec Ct App 2013) [quoting Patterson v Novartls Pharms Corp
909 F Supp
2d 116, 122 (D RI 2012)) The majority of courts, following American Pipe, recognize intra
jurisdictional tolling but on cross jurisdictional tolling, jurisdictions are split ' Id at 418
Compare Portwood v Ford Motor Co 701 N E 2d 1102 1104 [Ill 1998) ( Unless all states
simultaneously adopt the rule of cross jurisdictional class action tolling any state which
independently does so will invite into its courts a disproportionate share of suits which the federal
courts have refused to certify as class actions after the statute of limitations has run ) With Dow
Chem Corp v Blanca, 67 A 3d 392, 397 [Del 2013) ( If we do not recognize cross jurisdictional
tolling putative class members will still be incentivized to file placeholder actions in Delaware to
protect their interests in the event that the putative class is not certified ')
18 For the reasons stated below this Court holds that the soundest rule for the Virgin Islands is
to recognize intra jurisdictional class action tolling and by extension cross jurisdictional tolling
and further hold that [t]olling lasts from the day a class claim is asserted until the day the suit is
conclusively not a class action which may be because the judge rules adversely to the plaintiff or
because the plaintiff reads the handwriting on the wall and decides not to throw good money after
bad Sawyer v Atlas Heating & Sheet Metal Works Inc
642 F3d 560 563 (7th Cir 2011) But
whether to recognize class action tolling at all, and when such tolling should end, are controlling
question[s] oflaw with substantial ground for difference ofopinion 4V1C §33[c) Because an
immediate appeal may materially advance the ultimate termination of [this] litigation, Id 1 the
Court will certify these controlling questions to the Supreme Court of the Virgin Islands for
interlocutory appeal
I FACTUAL AND PROCEDURAL BACKGROUND
A Errol Stanley, et a! v St Crow Basic Serwces, Inc, et a!
114 Ninety two employees of St Croix Basic lost their jobs on lanuary 31 2003 after St Croix
Basic lost its contract with the Hess Defendants and it left the plant firing all its local employees
(Compl 1i 103) Two months later on March 31 2003 five former employees Errol Stanley, Nigel
1As well as several hundred otherlawsuits pending in the Complex Litigation Division SeeAbednego v St CraixAIumma
LLC 63 VI 153 186 88 [Super Ct 2015) (cross jurisdictional) (class certified in 1999 decertified in 2008) see also
Cornwall v VI Indus Mamt Corp 2019 V1 Super 117 11 1 [intra jurisdictional) (putative class action filed in 2002)
Castillo eta! v St. Croat BasrcServs Inc at a!
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MEMORANDUM OPINION
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Charles Melvin Neal, Joseph Sonny, and Wranda Davis2 (hereinafter Stanley Plaintiffs ') filed a
class action in the District Court against St Croix Basic and Basic Industries [collectively Basic
Defendants ] and HOVENSA, LLC [ HOVENSA ) and Amerada Hess Corporation ( Hess )
(collectively Hess Defendants ] for wrongful discharge; breach of a duty of good faith and fair
dealing violations of the Virgin islands Plant Closing Act and the Worker Adjustment Retraining
Notification Act fraud illegal retaliation and obstruction of iustice and intentional and negligent
infliction ofemotional distress Stanley 11 2008 U S Dist LEXIS 107702 at *1 2
115 Defendants appeared, answered the complaint and commenced discovery The Hess
Defendants also moved on October 16 2003, to dismiss the plant closing act claims, which the
District Court denied See generally Stanley v St (from Basra Servs Inc
291 F Supp 2d 379 (D VI
2003) (hereinafter Stanley] ) [finding private right ofaction under the Virgin Islands Plant Closing
Act and rejecting assertion that Hess Defendants could not be considered Stanley Plaintiffs
employers under the Act) Discovery continued On July 21 2005, the [District] Court acting sua
sponte ordered the Plaintiffs to move to certify their class by September 30 2005 ' Stanley ll
2008
US Dist LEXIS 107702 at *3 But rather than file the motion the Stanley Plaintiffs instead
announced to the Magistrate Judge and opposing counsel [on September 29 2005] that Plaintiffs
would not move for certification because the Third Circuit purportedly requires at least 290
plaintiffs to proceed as a class action Id The District Court [then] ordered Plaintiffs to move to
amend their complaint by December 29 2005 ' id which they did see 1d at least in a sense
116 A motion to amend the complaint was filed on December 29 2005, purportedly by the
Stanley Plaintiffs But in fact, the December 29 2005 motion was brought on behalfofseventy seven
former co workers of the Stanley Plaintiffs The motion explained that the Stanley
Plaintiffs originally believed the number of Plaintiffs was so numerous that it
qualified as a class However upon interviewing persons it was determined that the
number is small enough to name each Plaintiff individually Plaintiffs are requesting
to amend the Complaint only to individually name parties not listed in the First
Amended Complaint but whom Defendants had notice of as they were part of the
proposed class
(Ex 4 P15 Mot to Amend Comp] 1 Stanley, et al v St Crorx Baszc Servs, Inc et a], ECF No 106
2 Purportedly due to a scriveners error Wranda Davis was really Wranda Dariah and Rachel Davis combined
Neither was named in this lawsuit but the error played a role as noted further below
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MEMORANDUM OPINION
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1 03 cv 00055 (D VI Dec 29 2005) attached to P15 Mem in Opp n to Hess Corp & HOVENSA
L L C s Motions to Dismiss for Failure to State a Claim, filed Sept 28 2009 [hereinafter Opp n j) 3
Another ten former co workers sought to join Stanley through a February 1, 2006 motion to add
additional plaintiffs4 [See Ex 5 Pls Mot to Add Add l Pls to First Amend Comp] Stanley at a] v
St Cram Baschervs Inc et a1 ECF No 111 1 03 cv 00055 [DVl Feb 1 2006) attached to Opp n)
After several unopposed extensions, Defendants filed their responses in opposition to adding
eighty seven more people to Stanley The magistrate judge in a july 14 2006 Order agreed [n
denying the motions the District Court found that
[ajdding additional named Plaintiffs at this juncture would only further prolong the
delay in resolving this matter and will likely result in lengthy new discovery further
delaying resolution [and] place an unfair burden on Defendants by further
lengthening the time and resources they must allocate to this case after they have
already addressed Plaintiffs initial complaint and discovery requests
(Ex 6 Order 4 Stanley et al v St Crozx Basrc Servs Inc et a] ECF No 129 1 03 cv 00055 (DVI
Feb 1 2006) attached to Opp n ) The Stanley Plaintiffs immediately appealed the magistrate 3 july
14 2006 Order to the judge, who affirmed two years later in a March 4 2008 memorandum opinion
and order See generally Stanley 11 2008 U S Dist LEXIS 107702 at *11 ( Citing undue delay and
prejudice the Magistrate correctly applied the law and appropriately denied Plaintiffs Motion to
Amend their Complaint For the reasons set forth herein the Magistrate 3 Order Regarding
Plaintiffs Motion to Amend their Complaint is AFFIRMED )
3 The seventy seven individuals who sought to intervene on December 29 2005 were juan Castillo Stirling Cannonier
Andrew Bridgewater, Elisha Mondesir Roger Caul lulian Thomas Timothy Daniel Felton Warner Luis Fulgencio john
Steedley Oliver Marcelle Eli Rodriguez Grantley Young Oral Stanley Gerald Wells Aubrey Macedon Sabino Felix
Castillo Andres Nieves Jr Roque Melo Polanco Albert Williams David Griffith Antonio George Andrea Freeman
Nessie Smithen Francis Cecil Coker It Patrick Charles Wilfred Canton Gregory Bodley Stacy Andrew Reginald
Williams Franco Alvarez Magdalene Williams Horatius Popo Vance Alex Pemberton Peterson Massicot Collins
McNeal Matthew Steve javois Richard lnce Miguel Encarnacion Desmond Emanuel Omari Daley Maurecio
Commabatch lerry 0 Reilly, Trent Williams Dennis Antonio Ferdinand Ricky Caleb Kenneth Williams Gilberto
Camacho Steadford Buffong Clifford Emmanuel, Steve Tindeland Malcolm Fabio Ir Miguel Figuergoa Peter Cuffy
Wulston Paul josephat Edwards Ovidio Aquino Vincent Adams jr Paul Stephen Henry Ortiz Dwight Browne Shem
Maynard Peter Cole joseph Oscar Marcellus Phillip jeffery Nations Syron Peter Blake Vivian Lawrence, Bedi Huggins
Eustace Charles Miguel Bermudez Pius Aurelien Dennis lules Simone Abramson Peter George Mitche Mathews
BenedictAustrie and Dale Orrin Connor For reasons unclear Wranda Dariah would have moved from being the fifth
named plaintiff to the sixty seventh named plaintiff No one named Rachel Davis was listed in the proposed complaint
4 The ten individuals who sought to intervene on February 1 2006 were Manuel Reyes Sydney Sealey Miguel Camacho
junior Richards Barry Hall Brent Williams Ionathan Santiago Gonzales David Alexander Hugh Evans and Vaughn
Nevin Warner
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MEMORANDUM OPINION
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117 Four days after the judge affirmed the magistrate s decision to not allow the amendment the
eighty seven former co workers again purportedly acting through the Stanley Plaintiffs filed a
motion on April 8 2008 to certify the judge 3 April 4 2008 memorandum opinion and order to the
United States Court of Appeals for the Third Circuit or in the alternative, to certify a class only on
the Plant Closing Act claim as permitted by Rule 23(c)[4) of the Federal Rules of Civil Procedure
See Fed R Civ P 23(c) (4) ( When appropriate, an action may be maintained as a class action with
respect to particular issues ) After an unopposed extension of time Defendants responded in
opposition in June 2008 In particular St Croix Basic argued that certification for appeal and of a
class should be denied because [t]he 87 new names are primarily bargaining unit employees who
are already covered in the class action suit Randy Baptiste, et a] v St Crozx Basic Serwces Inc,
Superior Court ofthe Virgin islands Civil N0 SX 05 CV 42 for Plant Closing matters [Def St Croix
Basic Servs inc 5 Ob] [sic] to Pls Mot for Cert 2 ECF No 161 Stanley et a] v St Crozx Baszc Servs
Inc et a] Case No 1 03 cv 00055 (DVI lune 5 2008)) By contrast the original five Stanley
Plaintiffs were all supervisors Id at 3 What 5 more, the Stanley Plaintiffs assertion that the
Third Circuit requires 290 Plaintiffs to have a class is contra to Stewart v Abraham 275 F 3d
220 [3d Cir 2001) Id accord Stewart, 275 F 3d at 227 28 ( No minimum number of plaintiffs is
required to maintain a suit as a class action but generally if the named plaintiffdemonstrates that
the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met ) St Croix
Basic further claimed that counsel for the Stanley Plaintiffs failed to disclose to the District Court
that she did not represent the seventy seven individuals See Id [ Plaintiffs attorney did not tell
Judge Cannon that she did not represent the new group but intended to solicit them (citing Notice
of Law Offices of Rohn &Cameron, LLC St Crozwas Wednesday October 12 2005 p 10 attached
as Ex B) )5
1l8 in an October 31 2008 Memorandum Opinion and Order the District Court (Finch I) denied
certifying the interlocutory appeal and a class The District Court concluded that the March 4, 2008
Memorandum Opinion did not involve a controlling question of law Plaintiffs simply disagree
with the Courts finding of prejudice and attempt[] to manufacture a controlling question of law
5 The notice states Were you 3 ST CROIX BASIC SERVICES, INC ( Basic ) employee who worked for Basic for at least
one (1) year and was employed within 6 months of its closing and you want to be included in the Plant Closing Violation
litigation? You MUST ACT um TO BE A PART OF THE LAWSUIT!!!!
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MEMORANDUM OPINION
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by arguing that the Court misinterpreted the word prejudice This is nothing more than a
disagreement with the Court 5 application of the governing standard Stanley Ill 2008 U S Dist
LEXIS 90024 at *8 9 The District Court also concluded that certification for interlocutory appeal
[wa]s improper because there is no difference of opinion as to the legal standard to be applied in
considering motions to amend and which the Magistrate and this Court applied to Plaintiff‘s [sic]
motion Id at*10 11
119 In December 2008 the District Court referred Stanley to mediation and scheduled trial for
May 2010 For reasons unclear from the record Stanley was reassigned to another judge on )uly 22
2009 who moved the trial date up to April 2010 As the parties prepared for trial the Stanley
Plaintiffs on October 26 2009, filed a motion to amend the complaint to correct a scrivener 5 error
Wranda Dariah and Rachel Davis were inadvertently combined into one, Wranda Davis [Pls Mot
to Amend Comp! 1 ECF No 206, Stanley et al v St (from Basrc Servs Inc et a], Case No 1 03 CV
00055 (DVl Oct 26 2009)] Defendants opposed claiming prejudice and that the motion was
another attempt to add more plaintiffs before discovery closed St Croix Basic in particular, claimed
undue delay because the December 29 2005 motion to amend had corrected Wranda Davis to
Wranda Dariah Cf supra note 3 The Stanley Plaintiffs never filed a reply and the District Court
did not rule on the motion before the Stanley Plaintiffs filed notice on April 1 2010, that they had
settled in response the Court sua sponte, dismissed the case with prejudice on April 6, 2010
THO But then on April 9 2010 the Stanley Plaintiffs (really just Rachel Davis) filed a motion to
reconsider explaining that the existing Plaintiffs have settled their case [but] there is still the issue
of Plaintiff Rachel Davis (Pls Mot to Recons Dismissal of Action 1 ECF No 286, Stanley et a! v St
Craix Baszc Servs Inc, et a], Case No 1 03 cv 00055 (D VI Apr 9 2010)) Davis represented that
[t]he Defendants agreed to settle with Wranda Davis even though she was misnamed in the
Complaint and settled with her in her correct name Wranda Dariah Defendants declined to settle
as to Rachel Davis until a ruling on the Motion to Amend Complaint is entered Id Defendants
jointly responded in opposition, rejecting
Plaintiffs suggestion that Defendants agreed to a partial settlement of this case
reserving for a future consideration claims by Rachel Davis Defendants settled
this case in its entirety during mediation on April 1 and would not have entered into
such a settlement on a piecemeal basis There was no discussion during mediation
that Defendants declined to settle as to Rachel Davis until there was a ruling on the
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MEMORANDUM OPINION
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motion to amend complaint, in fact there was no discussion at all of Rachel Davis
because she was not a plaintiff in this case Nor did she attend the mediation
(Defs It Resp Opposing Pls Mot to Recons Dismissal ofAction 1 ECF No 287 Stanley, at a] v St
Craix BaSic Servs Inc et al Case No 1 03 cv 00055 (D VI Apr 12 2010)) The Stanley Plaintiffs
ignored Defendants claims and instead argued that the District Court could apply the established
doctrine of idem sonans and allow the amendment to fix th[e] oversight (Pls Reply to Defs It
Resp ECF No 291 Stanley et a! v St Crozx Basn: Servs Inc, et al Case No 1 03 cv 00055 (D Vl
Apr 28 2010) 6) The District Court (Savage 1) scheduled a hearing to show cause why the Stanley
Plaintiffs motion should not be granted and following the hearing, denied the motion in a May 28
2010 Order
1i11 On June 2 2010 Rachel Davis filed a motion to recuse the judge presiding over Stanley,
claiming bias toward her attorney The recusal motion which was consolidated with other cases, cf
Wallacev Kmart Corp Civ N0 02 0107 2010 WL 4238847 *1 n 1(DVl Oct 27 2010) Wallacev
Kmart Corp
821 F Supp 2d 763 (D VI 2011) and contempt proceedings against Lee] Rohn Esq
see Wallace v Kmart Corp ,
57 VI 847 (3d Cir 2012) are not relevant here But what is relevant is
that while those recusal proceedings were underway Rachel Davis also filed a notice in Stanley on
June 10 2010 claiming that she was a plaintiff and did not consent to the stipulated dismissal She
also filed another notice on June 11 2010 of appeal to the Third Circuit but under the caption
Stanley, at a] v St Craix Basm Servs Inc et a! in her notice Davis specified the May 28 2010 Order
as the order being appealed However in her Concise Summary of the Case required by Third
Circuit Local Appellate Rule 33 3, Davis stated that she was assign[ing error] to the court 5 rulings
on the 2005/2006 Motion to Amend to name individually the members of the putative class and to
the Courts failure to rule on the 2009 motion to amend as well as the Court 5 denial of Plaintiff{ ]s
motion to reconsider dismissal of the complaint (Appellant s Concise Case Summ 2, Stanley et al
v St Craix Bastc Servs Inc et al, No 10 2771 [3d Cir July 22, 2010)) Three months later, on
October 20 2010 the parties notified the Third Circuit that they had settled [p]ursuant to the
settlement reached through the Courts Appellate Mediation Program (Stip of Dismissal
6 Idem sonans is [a] legal doctrine preventing a variant spelling of a name in a document from voiding the document if
the misspelling is pronounced the same way as the true spelling Blacks Law Dictionary 862 [10th ed 2014) Black 5
Law Dictionary gives Gene and lean as an example See id
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Pursuant to Fed R App 42(b) Stanley et al v St CFOIX Baszc Servs Inc at a] N0 10 2771 (3d Cir
Oct 20, 2010] ) The stipulation was between the parties [to] the above captioned matter Id
meaning Errol Stanley eta] v St Crozx Baszc Servzces Inc eta! See 1d The Clerk dismissed the appeal
the same day 7
B [nan Castillo, et al v St Croix Bus": Serwces, Inc, et a!
1112 Two hundred and twenty eight days after the District Court denied the Stanley Plaintiffs
certification motion and 2 331 days after St Croix Basic lost its contract with HOVENSA and fired
its employees juan Castillo and the seventy six other individuals who were not permitted to
intervene in Stanley filed a complaint in the Superior Court of the Virgin islands on june 18 2009
Plaintiffs named the Basic Defendants and the Hess Defendants as defendants and sued them for
wrongful discharge [Count l) breach of the duty of good faith and fair dealing (Count ll) violation
of the Virgin Islands Plant Closing Act [Count Ill) fraud (Count IV) illegal retaliation and obstruction
ofjustice [Count V] and intentional infliction or negligent infliction of emotional distress [Count
V1] 3 Each count is asserted against every Defendant except Count lV Only the Hess Defendants are
alleged to have acted fraudulently
1113 HOVENSA and Hess appeared and stipulated with Plaintiffs for an extension of time to
respond to the complaint, while the Basic Defendants appeared answered the complaint and
moved for judgment on the pleadings on luly 30 2009 On August 26 2009 Plaintiffs notified the
Court that the Basic Defendants bald] granted an extension oftime up until September 2 2009 for
Plaintiff [sic] to respond to [the] Motions for judgment on the Pleadings (PIS Notice to Ct Ext
of Time I filed Aug 26 2009) Plaintiffs then filed their responses in opposition to the Basic
Defendants motion on September 2 2009 the same day the Court (Ross 1) approved the
stipulation HOVENSA responded to the complaint by moving on September 3 2009, to dismiss for
failure to state a claim for relief which Hess joined on the same day
Ti 14 Believing Plaintiffs had failed to respond the Court on September 8 2009 granted the Basic
Defendants motions, entering judgment on the pleadings in favor of Basic industries and St Croix
7 Rachel Davis later withdrew her motion to recuse the judge because she settled her claims and her cause of action
has been dismissed (Pls Notice of Withdrawal ECF No 468 Stanley et a] v St Cram Basic Servs Inc et a1 Case No
1 03 cv 00055 (0w lan 24 2011))
3 Punitive damages was erroneously labeled as Count Vii
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Basic The orders were entered September 11 2009 Plaintiffs filed a notice of appeal with the
Supreme Court of the Virgin Islands on September 18 2009 After an extension of time Plaintiffs
responded to the Hess Defendants motion on September 28 2009 attaching to their opposition
several documents from Stanley, including the complaint the December 29, 2005 motion to amend
the February 1 2006 motion to add additional plaintiffs the july 14 2006 Order denying leave to
amend and the March 4 2008 Memorandum Opinion and Order affirming the july 15 2006 Order
The Hess Defendants replied jointly on November 13, 2009
1i15 Even though the orders granting judgment to the Basic Defendants were on appeal Plaintiffs
filed a motion on December 22 2009 to reconsider the September 8 2009 Order but only as to St
Croix Basic That is, Plaintiffs motion asked for reconsideration as to St Croix Basic neglecting to
seek the same relief as to Basic industries The Basic Defendants jointly responded in opposition
however And the Court in a February 9 2010 Order granted the motion because the Court [had]
entered the September 8, 2009 Order without the benefit of Plaintiffs Opposition Castillo v St
CroszaSIcServs Inc No SX 09 CV 299 2010Vl LEXIS 141 *15 (Vi Super Ct Feb 9 2010] The
delay was caused by the Clerk 3 Office, Plaintiffs were not at fault, the Court explained Id at *14
Accordingly the Court vacated the September 8 2009 Order that granted judgment in favor of St
Croix Basic and reinstated St Croix Basic as a defendant See id at *16 Basic industries was not
reinstated
1116 Nonetheless, everyone including Basic Industries proceeded as if Basic industries had been
reinstated Since the Superior Court had reconsidered its order the Supreme Court dismissed the
appeal and remanded the case St Croix Basic and Basic industries jointly filed their reply to
Plaintiffs oppositions By vacating the September 8 2009 Order the Court necessarily reinstated
the motion for judgment on the pleadings at least as to St Croix Basic
1H7 This case went dormant until August 18 2015 when the Court sua sponte granted the
parties leave to supplement their motion papers in light of Government of the Virgin Islands v
Connor
60 VI 597 (2014) (per cunam] Plaintiffs filed their supplemental brief on September 2
2015 Two weeks later HOVENSA filed a notice of bankruptcy which stayed further proceedings
against HOVENSA until October 25 2018 when Plaintiffs filed notice that the bankruptcy court had
lifted the stay in exchange for them agreeing to limit their damages to the amounts available under
Castillo, et a] v St Craix Basic Servs Inc et a]
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Page 12 of 3S
HOVENSA 5 insurance policies In the interim, the Court (Willocks I) issued a January 10 2016
Memorandum Opinion and Order to notify Plaintiffs and the Basic Defendants that the Court would
convert the motions for judgment on the pleadings to summary judgment motions See generally
Castillo v St Crozx Baszc Servs Inc
67 VI 26 (Super Ct 2016) And since the parties had raised
American Pipe tolling see id at 30 31, the Court granted the parties leave to ‘to present all the
material pertinent to the motion for summary judgment [and] to file a supplemental brief to
address the issue of equitable tolling Id at 32 The Basic Defendants responded on Ianuary 22,
2016 by moving to stay further proceedings against them based on the automatic stay applicable
to HOVENSA Plaintiffs notified the Court that they did not object Accordingly the Court on
February 12 2016 stayed this case as to all parties
1i18 In an October 5 2018 Order entered November 7, 2018 the Presiding Judge of the Superior
Court designated this case as complex based on the number of plaintiffs transferred it to the
Complex Litigation Division and reassigned it to the undersigned judicial officer After the order
was signed but before it was entered, Plaintiffs notified the Court that the stay had been lifted
Accordingly this Court on February 15, 2019 reinstated the prior briefing schedule stayed by the
February 12 2016 Order
1119 The Court scheduled a status conference for September 10 2019 In advance of the status
conference the Court alerted the parties to the fact that the order granting judgment to Basic
industries had not been reinstated and further
that the parties briefing has focused on equitable tolling and whether statutes of
limitations should be tolled while a class action is pending This class action tolling
doctrine stems from the decision of the Supreme Court of the United States in
American Pipe & Construction Company v Utah, 414 U S 538 [19 74] and later cases
decided in furtherance of American Pipe However the question raised here is more
nuanced because American Pipe does not apply to state courts or, presumably to
territorial courts While many state courts have agreed to follow American Pipe and
toll the statute of limitations on individual actions while a class action is pending in
state court courts are divided over whether the same tolling should apply to a class
action filed in federal court or filed in another state court See generally David Bober
Comment, Cross jurisdictional Talling When and Whether a State Court Should Toll its
Statute of Limitations Based on the Filing of a Class Action in Another jurisdiction, 32
Seton Hall L Rev 617 (2002) Courts refer to this doctrine as cross jurisdictional class
action tolling Thus, the narrower question raised here is whether the Superior Court
of the Virgin Islands should toll the statute of limitations while a class action is
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MEMORANDUM OPINION
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pending in another jurisdiction here the District Court of the Virgin Islands
[Order 2 3, entered Sept 6 2019) The Court directed the parties to come prepared to address the
status of Basic Industries and cross jurisdictional class action tolling
1120 Plaintiffs the Hess Defendants and St Croix Basic appeared at the status conference Basic
Industries did not Yet counsel for St Croix Basic offered arguments against vacating the other
September 8 2009 Order The parties also argued whether the Virgin Islands should recognize
cross jurisdictional class action tolling, with Plaintiffs arguing in favor of recognition and the Hess
Defendants and St Croix Basic arguing against The Court gave Plaintiffs a deadline to move to
reinstate Basic Industries and the parties leave to submit citations to case law in writing and then
took the matter under advisement
1l21 Plaintiffs moved to vacate the September 8, 2009 Order on September 20, 2019 However
because the certificate of service showed that Plaintiffs had only served the Hess Defendants and
Basic Industries not St Croix Basic the Court cautioned counsel that selective service of court
papers Will not be tolerated, (Order 1 entered Oct 23 2019) and directed Plaintiffs to serve St
Croix Basic Neither the Basic Defendants nor the Hess Defendants responded In a january 27 2020
Order, the Court vacated the other September 8, 2009 Order and reinstated Basic Industries as a
defendant finding no prejudice to Basic Industries since Basic Industries had assumed that the
February 9 2010 order had reinstated it as well as St Croix Basic
[I DISCUSSION
A Whether to Recognize Cross jurisdictional Class Action Tolling?
1122 [S]tatutes of limitation embody important public policy considerations Dublin v V!
Tel Corp 15 VI 214 232 (Terr Ct 1978) (citation omitted) They are founded upon the general
experience of mankind that claims which are valid are not usually allowed to remain neglected
’ Id [citation omitted) And they promote the peace and welfare of society safeguard[ing] against
fraud and oppression and compel [ling] the settlement of claims within a reasonable period while
the evidence remains fresh in the memory of the witnesses Id (citation omitted) Unlike statutes
of repose which stand[] as an unyielding barrier to a plaintiff's right of action[,] Wright v
Robinson 426 S E 2d 870 871 (Ga 1993) statutes of limitation are subject to equitable tolling a
doctrine that pauses the running of or tolls, a statute of limitations when a litigant has pursued his
rights diligently but some extraordinary circumstance prevents him from bringing a timely action
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CTS Corp v Waldburger
573 US 1 9 (2014) (citation omitted) Statutes of repose generally
may not be tolled even in cases of extraordinary circumstances beyond a plaintiff’s control ' Id, see
also id at 8 ( The statute of repose limit is not related to the accrual of any cause of action, the
injury need not have occurred much less have been discovered The repose provision is therefore
equivalent to a cutoff in essence an absolute bar on a defendant 3 temporal liability (citations
and ellipsis omitted)) Broadly speaking statutes of limitation are remedial while statutes of repose
are substantive Cf Harding v KC Wall Prod Inc
831 P 2d 958 967 (Kan 1992) ( A statute of
limitations extinguishes the right to prosecute an accrued cause of action after a period of time It
cuts off the remedy It is remedial and procedural A statute of repose limits the time during which
a cause of action can arise and usually runs from an act of a defendant It abolishes the cause of
action after the passage of time even though the cause of action may not have yet accrued It is
substantive ) accord Gregoryv Flowers 290 N E 2d 181 186 (Ohio 1972) ( [S]tatutes oflimitation
are remedial or procedural in nature ) Compare 5 V I C § 31 (statute oflimitations) With, 5
VI C § 32b(a) (statute of repose)
1123 Since statutes oflimitation are remedial in nature they can be extended see 5 V] C § 36(a)
(extended for two years from date insanity imprisonment or minority ends) tolled see Marsh
Monsanto v Clarenbach
66 VI 366, 376 (2017), or even waived or forfeited if not asserted at the
first opportunity Cf. Rennie v Hess 011 VI Corp
62 VI 529 536 37 (2015) The question here is
whether the Virgin Islands should recognize another form of tolling class action tolling The
Supreme Court of the Virgin Islands has not had an occasion yet to address class action tolling Cf.
Abednego v St CrozxAlumma LLC
63 VI 153 187 (Super Ct 2015) ( Assuming arguendo that the
Virgin Islands were to join the majority ofjurisdictions and recognize the tolling of the statute of
limitations for the time when a class action is pending ) accord Alleyne v Diageo USVI, Inc,
69
VI 307, 337 (Super Ct 2018) (same) Accordingly this is an issue of firstimpression
1i24 When confronted with an issue of Virgin Islands common law not settled by binding
precedent courts must engage in a three factor analysis before applying a specific common law rule
Kuykendall v Hart
70 VI 528 538 39 (Super Ct 2019) (brackets quotation marks and citations
omitted) Colloquially this three part analysis has become known as a Banks analysis Id at 539
(quotation marks and citation omitted) The three factors to be considered in a Banks analysis are
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which common law rule Virgin Islands courts have applied in the past which rule has been
adopted by a majority of courts of other jurisdictions and then finally which common law rule is
soundest for the Virgin islands Id (quoting Machado v Yacht Haven U5 VI, L L C 61 V1 373, 380
(2014) (brackets and ellipsis omitted)) 0f the three factors the third is the most important
Id (brackets and citation omitted) Before turning to the Banks factors the Court will first
summarize class action tolling to frame the discussion
1125 lntra jurisdictional tolling whereby the filing of a class action may toll the limitations
period for claims by class members in the same jurisdiction during the pendency of the class action
was first recognized in American Pipe Rader v Greenberg Traurig Ltd Liab Pship
352 P 3d
465 467 (Ariz Ct App 2015) (citation omitted) American Pipe involved a class action filed by the
State of Utah in federal court eleven days before the statute oflimitations ran See 414 U S at 541
The district court concluded that the suit could not be maintained as a class action ' Id at 542
[E]ight days after entry of the order denying class action status more than 60 towns
municipalities, and water districts in the State ofUtah all ofwhich had been claimed as members of
the original class filed motions to intervene as plaintiffs Id at 543 44 The district court denied
intervention finding that the statute of limitations had run See id at 544 The United States Court
of Appeals for the Ninth Circuit affirmed in part and reversed in part See Id at 545 (citing Utah v
Am Pipe & Constr Co
473 F 2d 580 (9th Cir 1973)] And the Supreme Court of the United States
affirmed the Ninth Circuits reversal See Id at 561
1126 The Supreme Court held that the commencement ofthe original class suit tolls the running
of the statute for all purported members of the class who make timely motions to intervene after
the court has found the suit inappropriate for class action status Id at 553 And its decision was
grounded on efficiency and economy of litigation Id Rule 23 is not designed to afford class
action representation only to those who are active participants in or even aware of the proceedings
in the suit prior to the order that the suit shall or shall not proceed as a class action the Court
explained Id at 552 53 Otherwise [p]otential class members would be induced to file protective
motions to intervene or to join in the event that a class was later found unsuitable Id Instead, only
after the existence and limits of the class have been established and notice of membership has been
sent does a class member have any duty to take note of the suit or to exercise any responsibility
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with respect to it in order to profit from the eventual outcome of the case Id There is no unfairness
to defendants the Court reasoned because
when a named plaintiff who is found to be representative of a class commences a
suit and thereby notifies the defendants not only of the substantive claims being
brought against them but also of the number and generic identities of the potential
plaintiffs who may participate in the judgment the defendants have the essential
information necessary to determine both the subject matter and size of the
prospective litigation whether the actual trial is conducted in the form of a class
action, as a joint suit or as a principal suit with additional intervenors
Id at 554 55 And this necessary information is conveyed to the defendants [w]ithin the period set
by the statute of limitations Id at 555 Since Utah commenced the class action with 11 days
remaining on the statute of limitations and the former class members moved for leave to intervene
8 days after the order denied certification the statute oflimitation had not run See Id at 561
1127 Nine years later, the United States Supreme Court rejected the assert[ion] that the rule of
American Pipe was limited to intervenors and does not toll the statute of limitations for class
members who file actions oftheir own Crown Cork& Seal Co 462 U S at 350 [ [W]e conclude that
the holding of that case is not to be read so narrowly ) Instead [t]he filing of a class action tolls
the statute of limitations as to all asserted members of the class not just as to intervenors Id
(citation omitted) Any other conclusion would result in a needless multiplicity of actions
precisely the situation that Federal Rule of Civil Procedure 23 and the tolling rule ofAmencan Pipe
were designed to avoid Id at 351 Justice Powell joined by justices Rehnquist and 0 Connor
concurred reiterating the concerns Justice Blackmun had raised in his concurrence in American
Pipe namely that American Pipe must not be regarded as encouragement to lawyers in a case of
this kind to frame their pleadings as a class action intentionally to attract and save members of the
purported class who have slept on their rights Id at 354 (Powell, 1 , concurring) (quoting Am Plpe
& Constr Co 414 U S at 561 (Blackmun j concurring)] The tolling rule of American Pipe is a
generous one, inviting abuse he cautioned Id Accordingly, when a plaintiff invokes American Pipe
in support of a separate lawsuit the court should ensure that the suit raises claims that
'concern the same evidence, memories and witnesses as the subject matter of the original class suit,
so that the defendant will not be prejudiced Id at 355 [citation omitted)
1128 With this background the Court turns to the first Banks factor the past practices of Virgin
islands courts Unfortunately, other than Abednego which simply noted that class action tolling was
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unsettled in the Virgin Islands see
63 VI at 187 no court has decided whether the Virgin Islands
should recognize class action tolling In fact, it does not appear that the Superior Court of the Virgin
Islands or the Territorial Court of the Virgin Islands before it,9 has ever certified a class, at least not
from the available case law To be sure class actions have been filed in the Superior Court See 9 g ,
Cornwall v VI Indus Mamt Corp,
2019 VI Super 117, 1i 4 ( Cornwall and Clendenen filed a class
action in the Territorial Court ofthe Virgin Islands ) Alleyne v Diageo USVI Inc 69 V I 307, 313
(Super Ct 2018) ( [E]ight people commenced this action as a class action ) But most putative
class actions were either removed to the District Court see, 9 g Hall v Delta Air Lines Inc
340 F
Supp 2d 596 597 (D VI 2004) ( Hall filed a class action complaint in the Territorial Court against
Delta ) Abraham v St Crozx Renaissance Group LLLP
2020 VI Super 21 ‘H 2 ( Henry was filed
in 1999 in the then Territorial Court of the Virgin Islands as a class action and removed to the
District Court of the Virgin Islands ), had the class allegations stricken cf Goodwm v Fawkes,
67
VI 104 121 [Super Ct 2016) (deeming all references to a class action lawsuit abandoned ),
Pate v Gov t ofthe VI
62 VI 271 294 (Super Ct 2015) (striking class allegations because any
holding will affect both Plaintiff and all similarly situated ) or certification denied See
Baptiste v St Crozx BasrcServs Inc SX 05 CV 042 2007 VI LEXIS 38 (VI Super Ct Apr 24 2007]
(denying class certification sua sponte) Some still await a ruling on whether a class can be certified
Cf Morton v Mapp ST 16 MC 056 2018 VI LEXIS 148 (VI Super Ct Apr 4 2018) [motion to
amend complaint to assert a class action), see also Cornwall
2019 VI Super 117 at 1T 35 [ To date a
class has not been certified nor has a motion to certify a class, or to strike the class action allegations
been filed Thus, seventeen years after this action was commenced the class action aspect of this
case remains in limbo ) Yet even though putative class actions later abandoned denied or
withdrawn, have been filed in the Virgin Islands no court has had occasion to address whether the
statute of limitations should be tolled while a proposed class action was pending in the Superior
Court Thus, the first factor carries no weight here
1129 Regarding the second factor, under American Pipe, federal courts clearly must toll statutes of
limitations while class actions are pending 10 But territories and states are free to fashion their own
9 Renamed the Superior Court of the Virgin Islands in 2006 All further references will be to the Superior Court of the
Virgin Islands [except within quotations} Cornwall v V] Indus Mamt Corp
2019 VI Super 117 11 4 n 1
10 But not statutes of repose Cf. Lampfi Pleva Lipkmd Prupzs& Petigrow v Gilbertson 501 U S 350 363 (1991) ( The 3
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class action tolling rules and are not bound by American Pipe Stevens v Novartis Pharm Corp ,
247
P 3d 244, 252 (Mont 2010) Nonetheless, the majority ofstate and territorial courts to consider the
question have followed American Pipe Accord Philip Morris USA Inc v Christensen, 905 A 2d 340,
354 (Md 2006) [ The wide majority ofstates with class action rules similar to Fed R Civ P 23 have
followed American Pipe and endorsed a class action tolling rule ’) overruled in part on othergrounds
by Mummertv Alizadeh 77 A 3d 1049 1062 (Md 2013) The courts oflast resort ofAlabama Alaska
Colorado Connecticut Hawai i Idaho, Illinois Iowa Maryland Montana Ohio Oklahoma Oregon
Pennsylvania Puerto Rico New jersey Utah11 all recognize intra jurisdictional tolling as have
year limit is a period of repose inconsistent with tolling ) See also Albano v Shea Homes Ltd Pship 254 F 3d 360 365
[Ariz 201 1) ( Courts elsewhere are divided on whether American Pipe tolling should apply to statutes of repose )
11 First Baptist Church v CitroneIIe Mobile Gathering Inc 409 So 2d 727 728 [Ala 1981) ( We hold that when the
interests of putative class members may not be adequately pi otected by the class representative or by the judiciary the
statute of limitations is tolled from the date of commencement of the action until the date of denial of class
certification ) Nolan v Sea Airmotive
627 F 2d 1035 1042 (Alaska 1981) ( We find the high court 5 reasoning
persuasive and hold that the filing of a class action under Civil Rule 23 ordinarily tolls the statute of limitations as to all
members of the class whether or not named in the complaint ) BIaonck v Shearson Lehman Bros
954 S W 2d 939
941 [Ai k 1997) [ [T]he commencement of a class action tolls the running of the statute as to purported members of
the class during the pendency of the litigation ) Kuhn v Dep t ofRevenue
897 P 2d 792 795 (Colo 1995) [ The filing
of a class action lawsuit tolls the limitations period as to all putative class members even before the certification of the
class ) Grimes v Haas Auth 698 A 2d 302 306 (Conn 1997) ( [W)e now adopt the rule set forth in American Pipe &
Construction Co with respect to the tolling of statute of limitations for the purported members of a class action ) Lew
v Univ ofHaw
679 P 2d 129 132 (Haw 1984) [ We therefore adopt the rule enunciated in American Pipe and
clarified in Crown Cork and Seal Co which states that the commencement of a class action suspends the applicable
statute of limitations as to all asserted members of a class who would have been parties had the suit continued as a class
action ) Pope v Intermountain Gas Co
646 P 2d 988 1010 [ldaho 1982) Portwood v Ford Motor Co 701 N E 2d 1102
1103 [ill 1998) [ This court subsequently adopted the American Pipe rule for class actions filed in Illinois state court
(citing Stemberg v Chi Med Sch 371 N E 2d 634 644 (Ill 1977)) Lucas v Pioneer Inc 256 N W 2d 167 180 [Iowa
1977) ( We hold claims of parties properly members of the class who timely intervene in the proceedings below shall
be deemed brought for limitation purposes when the appropriate defendant was legally served in the original
litigation (citation omitted)) Philip Morris USA Inc 905 A 2d 340 355 {Md 2006) [ We adopt the American Pipe class
action tolling rule and its extension in Crown Cork & Seal but with the understanding that the American Pipe tolling
rule incorporates the discussion of notice as an additional requirement that must be met in order for a plaintiff or
intervenor to claim the benefit of the rule ) Stevens v Novartis Pharm Corp 247 P3d 244 253 (Mont 2010)
Vaccariello v Smith & Nephew Richards Inc 763 N E 2d 160 163 [Ohio 2002) [ We hold that the filing of a class action
whether in Ohio or the federal court system tolls the statute of limitations as to all asserted members of the class who
would have been parties had the suit been permitted to continue as a class action ) Dewey v State ex rel State
Firefighters Penswn & Rel: Sys
28 P3d 539 547 (Okla 2001) Bergquist v IntI Realty Ltd
537 P 2d 553 S61 [Ore
1975) ( [W]e believe the general principles enunciated in American Pipe and Construction Co v Utah supra is the
preferable rule to follow in this instance ) Cunningham v Ins Co ofN Am 530 A 2d 407 408 [Pa 1987) f It is well
established that upon the filing of a class action the statute of limitations is normally tolled for all putative plaintiffs in
the class [citing Alessandro v State Farm Mat Auto Ins Co 409 A 2d 347 350 n 9 (Pa 1979)) Rivera Castillo v Mun of
San/uan 130 D P R 683 700 01 [1992) Staub v Eastman Kodak Co 726A2d 955 967 [N] Super Ct App Div 1999)
[ We hold therefore that from the filing of a putative class action until the entry of an order denying class certification
the applicable statute of limitations will be tolled for the claim of a plaintiff who would be a member of the asserted
class if the class were certified and whose identity was disclosed or readily ascertainable upon the filing of the class
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intermediate appellate courts in lndiana, Michigan New Jersey, North Carolina and Texas 12
Arizona California, Massachusetts Minnesota, and Tennessee have not taken a clear position 13
action or upon its amendment within the period of limitations or who shows that he has deferred filing an individual
suit in reliance on the pendency of the class action provided that the plaintiffs claim is substantially the same as a claim
alleged by the putative class plaintiff ) Am Tierra Corp v City of W 10rdan
840 P 2d 757 762 (Utah 1992) ( We now
adopt the same rule as a matter of Utah law and hold that the commencement of a class action tolls the statute of
limitation as to all putative class members who would have been parties had class certification been approved )
‘2 Cf Arnold v Dirrim 398 N E 2d 426 440 (Ind Ct App 1979) see Warren Consul Sch v WR Grace & Co 518 N W 2d
508 511 (Mich Ct App 1994) ( Where class certification is later denied the commencement of a class action suspends
the applicable period of limitation with respect to all asserted members of the class who would have been parties had
the suit been permitted to continue as a class action ] Staub v Eastman Kodak Co 726 A 2d 955 967 (NJ Super Ct
App Div 1999) [ We hold therefore that from the filing of a putative class action until the entry of an order denying
class certification the applicable statute of limitations will be tolled for the claim ofa plaintiff who would be a member
of the asserted class if the class were certified and whose identity was disclosed or readily ascertainable upon the filing
of the class action or upon its amendment within the period of limitations or who shows that he has deferred filing an
individual suit in reliance on the pendency of the class action provided that the plaintiff‘s claim is substantially the same
as a claim alleged by the putative class plaintiff ) Scarvey v First Fed Sav & Loan Ass n ofCharlotte 552 S E 2d 655 661
(N C Ct App 2001) ( We theref0i e hold that the statutes of limitations on claims raised in a class action complaint are
tolled as to all putative members of the class from the filing of the complaint until a denial of class action certification
by the trial court as per American Pipe and Crown Cork ) Grant v Austin Bridge Constr Co
725 S W 2d 366 370 (Tex
App 1987) ( We hold that even though the statute of limitations on a class member 3 individual cause of action would
expire during the pendency of a class action the filing of the class action suspends the applicable statute of limitations
as all purported members of the class Thus the right to pursue an individual cause of action is not foreclosed by
decertification of the class Any time remaining on the statute of limitations of the unnamed property owners individual
cause of action on the date of the filing of the lawsuit was restored and began to run again on the date the class was
decertified ")
‘3 See Albana v Shea Homes Ltd Psth 254 F 3d 360 364 [Ariz 2011) [ We assume without deciding that the filing of
a class action in Arizona tolls the applicable statute of limitations for non named class members until class certification
is denied ) see also jolly v Eli Lilly & Co
751 P 2d 923 933 38 (Cal 1988) (recognizing the persuasive import of
American Pipe but finding class action tolling unavailable under the facts of the case) Butsee Becker v McMillin Constr
Co 277 Cal Rptr 491 496 [Ct App 1991) [ We find it is possible for some prior class actions based on tort particularly
property damage cases, to provide adequate notice to a defendant so that tolling is proper even where class certification
had to be denied for lack of common questions ) See Weatherly v Pershing L L C
945 F3d 915 920 [5th Cir 2019)
( The Florida Supreme Court has not decided whether a statute of limitations is tolled during a putative class action )
Butsee Gaffv R I Reynolds Tobacco Co 129 So 3d 1142 1145 (Fla Dist Ct App 2013) ( For purposes of decision we
assume the filing of the Bugle class action complaint toiled the running of the statute of limitations as to all potential
members of the class including Ms Gaff and her personal representative ) See Mass Elec Co v Mass Comm n Against
Discrimination 375 N E 2d 1 192 1 197 n 2 (Mass 1978) (declining to decide whether to adopt American Pipe tolling)
Bonhiver v Ora/f, 248 N W 2d 291 300 [1976) [rejecting tolling and finding statute of limitations had run because
federal court lacked subject matter jurisdiction) Compare Maestas v Sofamor Danek Grp Inc 33 S W 3d 805 808 (Tenn
2000) ( Tolling the statute of limitations for individual actions filed after the dismissal of a class action is sound policy
when both actions are brought in the same court system [quoting Portwood v Ford Motor Co 183 Ill 2d 459 701
N E 2d 1102 1104 [[11 1998)) But see Redwmg v Catholic Bis hop for the Diocese ofMemphis 363 S W 3d 436 460
(Tenn 2012) [ We have also declined to recognize the doctrine of cross jurisdictional tolling ) With Tigg v Pirelli Tire
Corp 232 S W 3d 28 35 (Tenn 2007) [ [Elven if we were to adopt a class action tolling doctrine we would hold that
the plaintiffs are barred by the statutes of limitations on their claims because the previous plaintiffs failed to protect the
other potential members of the class The previous plaintiffs failed to satisfy the burden upon the party seeking
certification to act promptly as practicable )
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Georgia appears to have conflicting authority 14 Kansas does not recognize class action tolling or
any tolling during the pendency of an action Instead, Kansas permits a putative class member to
file a new complaint within six months after a denial of certification In re LIBOR Based Fin
lnstrs Antitrust Litig No 11 MDL 2262 [NRB) 2015 U S Dist LEXIS 107225 at *456 [S D N Y Aug
4 2015) (citing Waltrip v Sidwell Corp
678 P 2d 128 133 [Kan 1984)) Missouri also does not
recognize class action tolling See Rolwmg v Nestle Holdings Inc, 437 S W 3d 180, 184 [Mo 2014)
[en banc) And, Virginia does not recognize class actions Casey v Merck & Co 722 S E 2d 842
846 [Va 2012) Louisiana recognizes class action tolling but by statute See Quinn 11 La Citizens Prop
Ins Corp 118 So 3d 1011 1016 & n 4 [La 2012) It must be excluded from the Court 5
consideration See In re L 0 F
62 VI 655, 661 n 6 [2015) [second Banks factor limited to non
statutory law created by judicial precedent )
1j30 The vast majority of jurisdictions across the nation have followed American Pipe Unlike
Missouri for example the Virgin Islands Code does not provide[] that a statute oflimitations may
be suspended or tolled only by specific disabilities or exceptions enacted by the legislature and the
courts are not empowered to extend those exceptions Rolwmg, 437 SW3d at 184 [citation
omitted) And Virgin Islands common law recognizes equitable tolling See Marsh Monsanto v
Clarenbach 66 V] at 376 [citing Santiago v V] Hous Auth
57 VI 256 273 (2012)) Class action
tolling is akin to equitable tolling Cfi Adedje v Westat Inc 75 A 3d 401 408 [Md Spec Ct App
2013) [ In a class action the putative class representative has satisfied the prerequisites to [filing]
suit includingfiling Within the applicable limitations period In contrast equitable tolling seeks to
excuse untimely filing by an individual plaintiff (quoting Hess v I R E Real Estate Income Fund,
Ltd 629 N E 2d 520 531[Ill App Ct 1993))
1[31 This Court agrees with the majority of courts and holds that the soundest rule for the Virgin
Islands is to adopt class action tolling Historically, class actions were not recognized at common
law See generally Goodwm 67 VI at 114 15 accord Bond v Ann Arbor Sch Dist 171 N W 2d 557
561 [Mich Ct App 1969) [ [C]lass actions historically were an invention of equity and had no
application to actions at common law ) afj’d in part and rev d in part on other grounds 178 N W 2d
W Bank 788 s E 2d 787 791 (Ga 2016) with State v Private Truck Counczl 371 S E 2d
378 380 81 [Ga 1988)
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484 (Mich 1970) (percunam) Felgerv FirstFed S &L Assn 3 Pa D &C 3d 70 72 73 (Ct Common
Pleas 1975) [ Historically, class actions were not permitted at common law The class action device
had its origin in equity ] The Virgin Islands Legislature has recognized class action suits in
limited instances such as for violations of consumer rights Goodwm 67 VI at 121 Before the
Supreme Court of the Virgin Islands promulgated Rule 23 of the Virgin Islands Rules of Civil
Procedure whether Virgin Islands common law should recognize class actions would have itself,
been subject to a Banks analysis See id But now that the Virgin Islands Supreme Court has
promulgated a rule that allows class actions and borrowed the Virgin Islands rule from the federal
rule federal case interpreting the federal rule is persuasive Cf Smith v Gov t ofthe VI
67 VI 797,
802 n 3 (2017) Although it is not binding see Ventura v People
64 VI 589 616 (2016] this Court
agrees with the reasoning of the Supreme Court of the United States
a tolling rule for class actions is not inconsistent with the purposes served by statutes
oflimitations Limitations periods are intended to put defendants on notice ofadverse
claims and to prevent plaintiffs from sleeping on their rights but these ends are met
when a class action is commenced Class members who do not file suit while the class
action is pending cannot be accused of sleeping on their rights Rule 23 both permits
and encourages class members to rely on the named plaintiffs to press their claims
And a class complaint notifies the defendants not only of the substantive claims
being brought against them, but also of the number and generic identities of the
potential plaintiffs who may participate in the judgment The defendant will be
aware of the need to preserve evidence and witnesses respecting the claims of all the
members of the class Tolling the statute of limitations thus creates no potential for
unfair surprise regardless of the method class members choose to enforce their
rights upon denial of class certification
Crown Cork & Seal Co 462 U S at 352 53 [citations omitted) As the Supreme Court of Alaska
explained summarizing the United States Supreme Courts reasoning in American Pipe
[Plrior to the 1966 revision of the federal rule, when a suit was brought as a class
action based on common questions of law or fact among the members of the class it
was merely an invitation to joinder an invitation to become a fellow traveler in the
litigation which might or might not be accepted Those who accepted the invitation
gained or lost by any judgment but absent parties were not affected Under this
regime it was uncertain whether the statute of limitations was tolled for the members
of the class when the class action was filed as some decisions looked to the
representative nature of the action to allow tolling, and others viewed the action as a
joinder device and required each individual to satisfy the statute of limitations
Nolan v Sea Alrmotive 627 P 2d 1035 1041 [Alaska 1981] (citations and footnotes omitted)
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1132 Once the United States Supreme Court amended Rule 23 and state courts adopted similar
rules to permit class actions the prior uncertainty diminished Rule 23 is not designed to afford
class action representation only to those who are active participants in or even aware of the
proceedings in the suit prior to the order that the suit shall or shall not proceed as a class action
American Pipe & Constr Co , 414 U S at 551 52 In fact individual members ofa class have no duty
to take note of the suit or to exercise any responsibility with respect to it in order to profit from the
eventual outcome of the case until the existence and limits of the class have been established and
notice of membership has been sent [to the] class member[s] Id at 552 But once a class has
been certified and notice is sent
potential class members retain the option to participate in or withdraw from
Thereafter they are either nonparties to the suit and ineligible to participate in a
recovery or to be bound by a Judgment or else they are full members who must abide
by the final judgment whether favorable or adverse
Id at 549 [fa class is not certified then former class members who seek to file their own lawsuits
must show that the class action complaint notified the defendants of not only of
the substantive claims being brought against them but also of the number and
generic identities of the potential plaintiffs [l]n order to claim the benefits of class
action tolling the individual suit must concern the same evidence memories and
witnesses as the subject matter of the original class suit and that claims as to which
the defendant was not fairly placed on notice by the class suit are not protected
Phillip Morris USA 905 A 2d at 357 [citations and brackets omitted)
1133 [C]lass action tolling is not without its limits One Star v Sisters ofSt FranCIs 752 N W 2d
668, 680 (S D 2008) Nonnamed class members are parties in the sense that the filing of an
action on behalf of the class tolls a statute of limitations against them Devlin v Scardelletti 536 U S
1 10 (2002) And a putative member of an uncertified class may wait until after the court rules on
the certification motion to file an individual claim or move to intervene in the existing suit[] China
Agritech 138 S Ct at 1804 (brackets omitted) [quoting Smith v Bayer Corp 564 U S 299 313 314
n 10 (2011)) But the named plaintiffs cannot benefit from class action tolling Cf Weitzner v Sana/i
Pasteur Inc 909 F 3d 604 612 (3d Cir 2018) [ Allowing named plaintiffs to file new individual
claims outside the statute of limitations when they can instead pursue their original timely filed
individual claims in the first case after class certification has been denied serves no legitimate
purpose ) And class action tolling does not apply when the defendant is not named in the class
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action One Star 752 N W 2d at 680
1B4 Although this Court holds that recognizing intra jurisdictional class action tolling is the
soundest rule for the Virgin Islands the question still remains whether to likewise recognize cross
jurisdictional class action tolling Courts in the Virgin Islands have not addressed this question
Thus the first Banks factor is not instructive And courts in other jurisdictions are divided Delaware
Hawaii Ohio, and Montana have recognized cross jurisdictional class action tolling 15 Maryland
New York Nevada and Puerto Rico have not addressed it 16 lllinois Tennessee Louisiana and
Virginia reject cross jurisdictional class action tolling 17 And intermediate appellate courts in
Pennsylvania and Kentucky also rejected the doctrine 13 while intermediate appellate courts in New
jersey Michigan and Missouri have adopted it 19 A Texas appellate court and the Supreme Court of
15 See Blanca 67 A 3d at 395 [ We are persuaded by the reasoning of other state supreme courts that have recognized
the doctrine of cross jurisdictional class action tolling ) Patrickson v Dole Food Co 368 P 3d 959 960 (Haw 2015)
[ We hold that the filing ofa putative class action in anotherjurisdiction does toil the statute oflimitations in this state
as such ‘cross jurisdictional tolling‘ supports a primary purpose ofclass action litigation, which is to avoid a multiplicity
of suits ) Stevens v Novartis Pharm Corp
247 P 3d 244 255 (Mont 2010) [ We are convinced that the decisions
adopting cross jurisdictional tolling more effectively balance the considerations at issue ) VaccarieIIo 763 N E 2d at
163 ( We hold that the filing of a class action whether in Ohio or the federal court system tolls the statute of limitations
as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class
action )
16 See Philip Morris USA Inc 905 A 2d at 356 n 9 ( We express no opinion as to whether we would recognize the doctrine
of cross jurisdictional class action tolling ) cfi Chavez v 0cc1dental Chem Corp, 933 F 3d 186 201 [2d Cir 2019)
[certifying question to New York Court of Appeals) certification accepted 130 N E 3d 1 110 (N Y 2019) Archon Corp v
EighthjudiCiaIDist Ct
407 P 3d 702 709 10 [Nev 2017) Cfi In re Vioxx Prod Liab Litig
522 F Supp 2d 799 811 [E D
La 2007) [ Although Puerto Rico does recognize class action tolling Puerto Rico has not explicitly adopted cross
jurisdictional tolling (citation omitted])
17 See Portwood‘ 701 N E 2d at 1 104 [ Tolling the statute of limitations for purported class members who file individual
suits within the same court system after class status is denied therefore serves to reduce the total number of filings
within that system ) Quinn v La Citizens Prop Ins Corp 118 So 3d 1011 1022 [ We believe the rationale of the courts
rejecting cross jurisdictional tolling is the one most consistent with our interpretation of the provisions of Louisiana 5
tolling statute ) Casey 722 S E 2d at 845 [ [T]here is no authority in Virginia jurisprudence for the equitable tolling
of a statute of limitations based upon the pendency of a putative class action in another jurisdiction ) Maestas v
Sofamor Danek Grp Inc 33 S W 3d 805 808 [Tenn 2000) [ [Wje decline to adopt the doctrine of cross jurisdictional
tolling in Tennessee ")
“3 See Roi/itch v Price Waterhouse 793 A 2d 939 945 (Pa Super 2002) ( [W]e hold that the filing of a class action in
another state does not toll the statute of limitations as to a subsequent action filed in Pennsylvania 5 state court
system ) Easterlyv Metro Life Ins Co Nos 2006 CA 001580 MR 2006 CA 001687 MR 2009 Ky App Unpub LEXIS
428 *18 (Ky Ct App Feb 13 2009) ( We thus conclude the toiling of federal claims as contemplated under American
Pipe does not apply cross jurisdictionally to toll state law claims in the Commonwealth )
19 See Staub 726 A 2d at 967 see also id at 961 [noting that class action was pending in federal court) Lee v Grand
Rapids Bd ofEduc 384 N W 2d 165 168 (Mich Ct App 1986) ( This Court has previously held that the filing of a federal
lawsuit tolls the operation of the statute of limitations We conclude for the reasons set forth above, that the federal
district court action tolled the operation of the statute of limitations (citation omitted)) Hyatt Corp v 0cc1dental
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South Dakota both declined to recognize cross jurisdictional class action tolling but based on the
specifics of the cases before them 20 And an Arizona intermediate appellate court concluded that its
Legislature [had] adopted a form of cross jurisdictional tolling Rader
352 P 3d at 471
1i35 Regarding the third Banks factor the sheer volume of case law addressing this issue calls
for a more rigorous analysis than simply tallying holdings Doe v Hartford Roman Catholic
Diocesan Corp 119 A3d 462 508 09 [Conn 2015) The majority of states have not yet had
occasion to address the issue directly and the states that have considered cross jurisdictional tolling
have been split in their acceptance of the doctrine and the rationale for their decisions Patterson
v Novartis Pharm Corp
909 F Supp 2d 116 122 [D Rl 2012) (quoting Quinn v La Citizens Prop
Ins Corp 118 So 3d 1011 1021 22 (La 2012)) Thus the reasons for and against recognizing cross
jurisdictional class action tolling is what must be considered Accord Doe 119 A 3d at 509
( [D]etermine which sister state courts approaches provide a genuinely persuasive framework for
resolving this question )
1136 Those jurisdictions who refuse to toll the statute oflimitations while a putative class action
is pending in another jurisdiction whether federal, state or territorial, do so based on concerns
over judicial economy Cf Blanco 67 A 3d at 397 98 ( While the courts reasons for not adopting
cross jurisdictional tolling vary the most common concern expressed is that of opening the
jurisdiction to a floodgate of litigation ) The Supreme Court of lllinois worried that [t]olling a state
statute of limitations may actually increase the burden on that state s court system because
plaintiffs from across the country may elect to file a subsequent suit in that state solely to take
advantage of the generous tolling rule Portwood 701 N 8 2d at 1104 The court reasoned that
[u]nless all states simultaneously adopt the rule of cross jurisdictional class action tolling any state
which independently does so will invite into its courts a disproportionate share of suits which the
federal courts have refused to certify as class actions after the statute of limitations has run Id The
Fire & Cos Co
801 S W 2d 382 389 (Mo Ct App 1990) ( These class action complaints tolled the statute of limitations
on behalf of all putative rescuers including those who subsequently filed their own actions or settled individual claims
during the pendency of the [acob class action )
20 See Bell v Shown Denko KK
899 S W 2d 749 758 (Tex App 1995] see also One Star 752 N W 2d at 681 [ Because
Plaintiffs have failed to cite any authority supporting class action tolling in cases involving different defendants
different claims in different jurisdictions this Court declines to adopt Plaintiffs theory of cross jurisdictional tolling
during the Zephier class action litigation ]
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Supreme Court of Tennessee was likewise concerned over the risk that Tennessee courts would
become a clearinghouse for cases that are barred in the jurisdictions in which they otherwise would
have been brought Maestas 33 S W 3d at 808 Like Illinois the Tennessee Supreme Court
expressed concern that [ljitigants who ordinarily would have filed in other states courts would file
in Tennessee solely because our cross jurisdictional tolling doctrine would have effectively created
an overly generous statute of limitations Id And the United States Court of Appeals for the Fourth
Circuit predicting what the Supreme Court of Virginia would hold reasoned that Virginia simply
has no interest except perhaps out of comity in furthering the efficiency and economy of the class
action procedures of another jurisdiction whether those of the federal courts or those of another
state Wade v Danek Med Inc 182 F 3d 281 287 (4th Cir 1999) The Fourth Circuit Court of
Appeals also agreed with lllinois and Tennessee about the flood of subsequent filings once a class
action in another forum is dismissed Id But perhaps most importantly the court reasoned that
ifVirginia were to allow cross jurisdictional tolling it would render the Virginia limitations period
effectively dependent on the resolution of claims in other jurisdictions with the length of the
limitations period varying depending on the efficiency (or inefficiency) of courts in those
jurisdictions Id
1i 37 Those jurisdictions that recognize cross jurisdictional class action tolling are also concerned
with judicial economy For example the New Jersey Superior Court, Appellate Division, observed in
Staub that
[t]he efficient utilization of judicial resources and the reduction of costs to individual
litigants are among the principal purposes of both state and federal class action rules
A tolling rule which permits individual claimants to refrain from filing suit pending a
decision on certification of a class action that would encompass their claims is almost
indispensable to accomplish those purposes In fact a contrary rule would reward
defendants who caused a court to delay decision of class action certification until the
statute of limitations had run against any potential plaintiffs who had ‘discovered
their cause ofaction as a result of publicity
Staub 726 A 2d at 966 [citations omitted) The Supreme Court of Delaware echoed similar concerns,
noting that the potential for litigation in Delaware exists whether or not cross jurisdictional tolling
is recognized If we do not recognize cross jurisdictional tolling, putative class members will still be
incentivized the court reasoned to file placeholder actions in Delaware to protect their interests
in the event that the putative class is not certified Blanca 67 A 3d at 397
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1]38 The Delaware Supreme Court relied on the Supreme Court of Montana see Id (citing Stevens
247 P 3d at 256) which found the potential for a greater burden on the court system by not
adopting the rule as plaintiffs would be required to file protective individual suits in Montana
courts to avoid limitations defenses while otherwise relying on a pending class action suit filed
elsewhere Stevens
247 P 3d at 256 lncentivizing more lawsuits the court explained directly
conflicts with the rationale underlying the class action tolling rule to promote judicial economy by
encouraging individual plaintiffs to defer to class action suits to protect their claims Id accord
Vaccanello v Smith & Nephew Richards Inc 763 N E 2d 160 163 (Ohio 2002) ( Our holding today
merely allows a plaintiff who could have filed suit in Ohio irrespective of the class action filed in
federal court in Pennsylvania to rely on that class action to protect her rights in Ohio To do
otherwise would encourage all potential plaintiffs in Ohio who might be part of a class that is
seeking certification in a federal class action to file suit individually in Ohio courts to preserve their
Ohio claims should the class certification be denied The resulting multiplicity of filings would defeat
the purpose ofclass actions )
1139 The concerns the Wade court raised regarding the efficiency of other jurisdictions is
persuasive Here, Plaintiffs lost theirjobs on January 31, 2003 Yet, this case was not filed until june
18 2009 six and a halfyears later And the only reason this case was filed is because the District
Court of the Virgin islands declined to allow the former class members in Stanley to intervene
Litigation on that question was arguably not resolved until October 20 2010 when the Stanley
Plaintiffs notified the Third Circuit that they had settled a year and a half after this case was
commenced Other cases present similar concerns about delay (If Abednego 63 Vl at 160
[ Although this action was initially filed in the Superior Court ofthe Virgin Islands in 2009 litigation
over the claims at issue actually began ten years earlier in the District Court of the Virgin Islands
when a class was certified in 1999 ) Cases delayed years or even decades in another jurisdiction
burden the court with the litigation of stale claims long after memories fade, witnesses relocate or
pass away and evidence is lost all which the statute of limitations is designed to avoid Cf Dublin,
15 VI at 233 ( The longer the delay of the plaintiff in the institution of his suit the greater the
likelihood that the evidence will be lost memories blurred or the witnesses become altogether
unavailable Potential defendants therefore rightly are protected from the fear of litigation by the
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requirement that the injured party act with due diligence )
1i40 But the same reasons that support adopting intra jurisdictional class action tolling also
support adopting cross jurisdictional class action tolling The Illinois Supreme Court disagreed,
noting that [t]olling the statute of limitations is sound policy when both actions are brought in
the same court system [Otherwise] failing to suspend the limitation period would burden the
subject court system with the protective filings described Portwood, 701 N E 2d at 1104 But there
is no reason to not require protective filings simply because the putative class action was filed in
same jurisdiction particularly when a State or Territory has multiple judicial districts Likewise, the
concerns the Wade court had raised about the efficiency of the court presiding over the putative
class action while valid would also apply when the putative class action is filed in the same court
system Within every judicial system in the United States including the Virgin islands courts are
arranged in a pyramid with trial courts at its base and a single court at the top with ultimate
authority Connor 60 Vi at 604 (citation omitted] Trial court judges do not have superintendent
authority over each other Thus whether the delay occurs in another jurisdiction or the same
jurisdiction the result is the same a differentjudicial officer inherits one or more cases after some
length of time another judicial officer declined to certify a class A class action tolling rule makes
sense Without one, all class members would be forced to intervene to preserve their claims, and
one of the major goals of class action litigation to simplify litigation involving a large number of
class members with similar claims would be defeated Blanca, 67 A3d at 395 n 10 (citation
omitted] Accordingly this Court also holds that the soundest rule for the Virgin islands is to
recognize cross jurisdictional class action toiling
B When Does Cross jurisdiction Class Action Telling End?
1141 The remaining question to answer is more difficult because of the specifics of this case St
Croix Basic lost its contract and fired its employees on February 1 2003 Plaintiffs did not file their
complaint until june 18 2009 A total of2329 days or 6 years, 4 months and 17 days passed in
between if the Stanley Plaintiffs had not filed a class action in District Court on March 31 2003 58
days after they were fired, the statute of limitation would have run But they did and it tolled the
statute of limitations The question is when did it resume? The answer? It depends
1142 First to put the question in context When a court states that a time period is tolled, it means
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that it abates or stops the running of the limitations period in question Bright v United States 603
F 3d 1273 1284 n 5 (Fed Cir 2010) (citing Blacks Law Dictionary 1625 (9th ed 2009)) Thus filing
a class action does not start the clock, it stops the clock
Extra time is not accumulating, but rather a time period is stopped tolled suspended
Telling means that when a time bar has been suspended and then begins to run again
upon a later event, the time remaining on the clock is calculated by subtracting from
the full limitations period whatever time ran before the clock was stopped
Abernathy v United States 108 Fed Cl 183 187 (2012) (quoting United States v [barra 502 U S 1
4 n 2 (1991))
1143 While courts often favor a clear and unambiguous rule Marqumez 183 A 3d at 711, they
rarely adopt one The Supreme Court of Hawai i for example held that the pendency of a class
action in anotherjurisdiction operates to toll our state s applicable statute(s) oflimitations until the
court in our sister jurisdiction issues an order expressly denying a motion for class certification (or
expressly denying the last such motion if there is more than one motion) Patrzckson v Dole Food
Co, 368 P 3d 959 971 (Haw 2015) The Supreme Court of Delaware narrowed its version of the
same rule holding that cross jurisdictional class action tolling ends only when a sister trial court
has clearly unambiguously and finally denied class action status Id at 712 (emphasis added)
1(44 Hawai i 3 rule appears to contemplate that the [trial] court may reconsider its order denying
class certification or that an appellate court may later reverse it Armstrong v Martin Marietta
Corp 138 F 3d 1374, 1381 (11th Cir 1998) (en banc) Hawai is rule also contemplates more than
one motion to certify a class Unlike Delaware 5 rule Hawai is rule does not appear to be limited to
a decision of the trial court And some courts extend class action tolling while an appeal is pending 21
Cf. Am Tierra Corp v Wjordan
840 P 2d 757 762 (Utah 1992) ( [Wlhen a proper appeal ofa class
21 Rachel Davis had appealed to the Third Circuit from the May 28 2010 order refusing to set aside the stipulated
dismissal Recall that Wranda Dariah and Rachel Davis were merged by scrivener 3 error into Wranda Davis
Defendants had settled with Dariah not Davis and Davis objected In her notice of appeal Davis designated the order
refusing to set aside the dismissal Yet in the concise statement of the case she also designated the orders denying leave
to amend [really to intervene) However the concise summary of the case does not operate to amend the notice of
appeal however or expand the errors to be considered on appeal See Union Pac R R v Greentree Transp Trucking Co
293 F 3d 120 126 n 8 (3d Cir 2002) see also Fishman Org v Frick Transfer Inc 564 F App x 649 652 n 4 (3d Cir 2014)
[ Local Rule 33 3 requires among other things a Concise Summary of the Case for purposes of facilitating mediation
and does not bear on the preservation of substantive claims )- accord 0R v Hunter 515 F App x 85 86 n 1 (3d Cir
2013) ( [T]he concise summary of the case is not a notice of appeal ) Since the Third Circuit would not have had
jurisdiction over the orders denying leave to intervene it is excluded from the Court 3 analysis
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certification decision is taken the tolling benefit continues on behalf of all members of the class until
the class issue is finally determined by the decision on appeal ) And there may be benefit to such
a rule If the appellate court reverses the denial of class certification after the former class member
went ahead and filed their own lawsuits the result would be precisely the multiplicity of activity
which Rule 23 was designed to avoid Am Pipe & Constr Co , 414 U S at 551, accord Miller v
Fed Kemper Ins Co 508 A 2d 1222 1231 (Pa Super Ct 1986) ( To accept the conclusion that the
limitations period is not tolled but continues to run during the pendency of the class
representative 5 appeal would be to encourage each purported class member either to file an
individual action or move to intervene in order to avoid extinguishment of his or her right of
recovery during the appeal period This is precisely the multiplicity of activity that class action rules
were designed to avoid (citation omitted))
1145 The United States Courts of Appeal for the Second and Eleventh Circuits refuse to extend
class action tolling to include the time pending reconsideration or appeal Cf. Giovanmello v ALM
Media LLC 726 F 3d 106 117 18 (2d Cir 2013) ( Further even where the plaintiffs seek
reconsideration or appeal ostensibly representing the rights of non named plaintiffs, reliance is not
objectively reasonable As the court in Armstrong identified reconsideration and appeal rarely
result in a reversal of the district court decision ) And the United States Courts of Appeal for the
Third and Seventh Circuits do not require the filing ofa motion Leyse v Bank ofAm Nat [Ass n 538
F App x 156 161 62 (3d Cir 2013) ( As the Court oprpeals for the Seventh Circuit has recently
explained it does not matter under federal law whether the first suit 3 status as a would be class
action ends by choice of the plaintiff (who may abandon the quest to represent a class or bow out
altogether) or by choice of the judge (ellipsis omitted) (quoting Sawyer v Atlas Heating & Sheet
Metal Works Inc 642 F 3d 560 563 (7th Cir 2011)) instead both courts conclude that the goal
of enabling members of a putative class to rely on a pending action to protect their interests can be
achieved only if the way in which the first suit ends denial of class certification by the judge,
abandonment by the plaintiff or any other fashion is irrelevant Id at 162 (emphasis added)
(quoting Sawyer 642 F 3d at 562)
1M6 Clearly, courts take different approaches when tolling statutes of limitations for class actions
See also Chavez v 0cc1dental Chem Corp , 933 F 3d 186 199 (2d Cir 2019) ( Existing case law sheds
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little light on whether a non merits denial of class status necessarily terminates tolling Few courts
have addressed the issue and there is no consensus among those that have ) The least complicated
approach is to restart the statute of limitations lock once a final judgment is entered and appeals
are exhausted Understandably, this might force defendants to defend new lawsuits years after class
allegations were denied or abandoned Cf. Stone Container Corp v United States 229 F 3d 1345
1355 (Fed Cir 2000) ( Limitations periods could be tolled for years During these long delays,
evidence could be lost, memories could fade and witnesses could disappear Defendants would have
no way ofknowing how many individual claims would exist ifclass certification were denied ) But
class action tolling only applies because the defendant is put on notice ofthe substance and nature
of the claims against it Vaccariello 763 N E 2d at 163 Contra One Star 752 N W 2d at 681 (class
action tolling inapplicable for cases involving different defendants different claims in different
jurisdictions ) Here for example, the Hess Defendants and the Basic Defendants clearly were on
notice of the Castillo Plaintiffs because everyone named in this lawsuit was proposed to be added to
Stanley And the claims in Castillo are identical to those in Stanley except that the Castillo Plaintiffs
abandoned their federal claims Cf. Stanley III 2008 U S Dist LEXIS 90024 at *2 ( Plaintiffs
Complaint included numerous counts (1) wrongful discharge (2) breach of a duty of good faith and
fair dealing (3] violations of the Virgin Islands Plant Closing Act and the Worker Adjustment
Retraining Notification Act; (4] fraud (5) illegal retaliation and obstruction of justice and (6)
intentional and negligent infliction of emotional distress ] Thus Defendants had notice of the
claims asserted in this case
1147 But this Court is not comfortable adopting such a broad open ended rule instead this Court
will employ a traditional tolling approach Cf Pichierri v Crowley
59 VI 973 979 (2013) (equitable
tolling tests can be highly fact specific ] However this case presents another hurdle because the
Stanley Plaintiffs on the record on September 29 2005, abandoned the class action and instead filed
a motion on December 29 2005 for leave to amend their complaint to add the individual Castillo
plaintiffs Although the motion, in name was filed by the Stanley Plaintiffs in truth it was filed by
the former class members And the motion truly did not seek to amend the complaint Instead, it
sought leave to add additional plaintiffs or, in other words, to intervene (See Pls Mot to Amend
Comp] 1 ( Plaintiffs are requesting to amend the Complaint only to indiVidually name parties not
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listed in the First Amended Complaint but whom Defendants had notice of as they were part of the
proposed class [emphasis added)), Stanley et a] v St Croat Baszc Servs Inc, et al No 03 CV 055
[D VI Dec 29 2005) attached as Ex 4 to P15 Mem in Opp n to Hess Defs Mots to Dismiss for
Failure to State a Claim filed Sept 28, 2009 ) The magistrate judge construed the motion according
to its caption as a motion for leave to amend and denied it as untimely Cfi Stanley [1 2008 U S
Dist LEXIS 107702 at *11 ( Citing undue delay and prejudice the Magistrate correctly applied the
law and appropriately denied Plaintiffs Motion to Amend their Complaint ) But see Smith v Evans,
853 F 2d 155 158 (3d Cir 1988) ( [T]he function ofthe motion not the caption dictates which Rule
applies ) This raises two potential problems
1148 First a motion to intervene should not be titled a motion to amend Cf. Bridges v Dep tofMd
State Police 441 F 3d 197 206 09 [4th Cir 2006) (construing motion to amend filed by nonparties
after class claims were abandoned as motion for leave to intervene) [U]nnamed class members
are not parties Dewey v Volkswagen Aktiengesellschaft 681 F 3d 170 181 [3d Cir 2012) And
nonparties cannot amend the pleadings Notwithstanding the title the motion was for leave to
intervene Had the Castillo Plaintiffs actually filed a motion for leave to intervene rather than having
the Stanley Plaintiffs pretend to seek leave to amend the complaint to add additional people
confusion and further delay would have been avoided In federal court when an order prevents a
putative intervenor from becoming a party in any respect the order is subject to immediate review
Strmgfellow v Concerned Neighbors In Action
480 US 370 377 107 [1987) Thus the Castillo
Plaintiffs could have appealed the denial in 2006
1149 Second and more importantly the Third Circuit has not addressed whether federal
magistrate judges have authority to rule on motions to intervene particularly motions filed by
former class members after denial or abandonment of a class Cf. Dewey v Volkswagen
Aktiengesellschaft 558 F App x 191 198 99 (3d Cir 2014) [ Braverman points out that the Third
Circuit has not determined whether a motion to intervene as of right in a class action proceeding is
dispositive and he invites us to adopt the position of the Second and Eleventh Circuits claiming
they say it is (citation omitted)) Former class members have a right to intervene once a case will
not proceed as a class action See Crown Cork & Seal Co 462 U S at 354 ( Once the statute of
limitations has been tolled it remains tolled for all members of the putative class until class
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certification is denied At that point, class members may choose to file their own suits or to intervene
as plaintiffs in the pending action ) Since deciding whether a former class member can intervene
may be dispositive several federal courts have held that magistrate judges may not decide the
motion but instead must recommend a decision to the judge Cfi N Y Chinese TV Programs Inc v
UE Enters Inc
996 F 2d 21 25 (2d Cir 1993] ( Absent the ‘intervenors consent the magistrate
judge was not authorized to enter a final order denying intervention her decision on the motion is
deemed to be a report and recommendation to the district judge') But cf. L05 Congris v UMG
Recordings Inc No 10 1349 []AG) 2012 U S Dist LEXIS 75154 at *17 18n 5 (D P R May 23 2012)
( There is a split of authority as to whether a motion to intervene is a non dispositive matter
(collecting cases)) Again, the Third Circuit had not addressed the issue in 2006 when the magistrate
judge denied the December 29 2005 motion But of Dewey 558 F App x at 198 n 6
1150 lfthe motion filed by the Stanley Plaintiffs to amend were construed as a motion filed by the
Castillo Plaintiffs to intervene, and ifthe magistrate judge 3 My 14 2006 Order were construed as
recommendation to the district court judge to deny the motion then tolling would not have ended
until March 4 2008 when the District Court issued its decision affirming (or ad0pting) the
magistrate judge s ruling See Stanley II 2008 U S Dist LEXIS 107702 at *11 ( For the reasons set
forth herein the Magistrate 5 Order Regarding Plaintiffs Motion to Amend their Complaint is
AFFIRMED '] Employing a traditional tolling approach, the statute of limitations would have
commenced on February 1 2003 (employees fired) and continued until March 31 2008 (Stanley
filed] 58 days resumed on September 29 2005 (class abandoned) and continued until December
29 2005 (amend/intervene motion) 91 days and resumed on March 4 2008 (affirmance/adoption
of decision/recommendation) and continued until June 18 2009 (Castillo filed), 471 days 22 Under
this approach 620 days would be subtracted from the full limitations period And since the shortest
limitations period here is 2 years or 730 days the Castillo Plaintiffs filed within the statutes of
limitations, with an additional 110 days to spare
1(51 But there 3 yet another concern Clearly it is ‘the commencement of a class action that
23 Plus or minus four days Technically the complaint in Stanley was filed on March 28 2003 but not entered on the
docket or eod until March 31 2003 And, while the complaint in Castillo was filed on june 18 2009, the filing fee was
not paid until june 19 2009 Cf Hurtaultv Hess Oil V.I Corp 69V! 451 458 n 1 [Super Ct 2018] (citing cases regarding
the effect of filing fees on statutes of limitations] see also In re Cases Removed to the Dist (It of the VI , SX 98 CV 109
etseq 2016 Vi LEXIS 154 at *20 21 n 14 (Vi Super Ct Sep 21 2016] (citing cases discussing eod )
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suspends the applicable statute of limitations as to all asserted members of the class Leyse 538 F
App x at 161 {brackets omitted) [quotingAmerican Pipe 414 U S at 554)] And class action tolling
continues until the day the suit is conclusively not a class action which may be because the judge
rules adversely to the plaintiff or because the plaintiff reads the handwriting on the wall and
decides not to throw good money after bad Sawyer 642 F 3d at 563 There is no requirement in
federal court of a formal motion for class certification or any district court ruling on class
certification Leyse, 538 F App x at 161 Although Defendants object because the Stanley Plaintiffs
never moved to certify a class 23 theii objections have no merit because Stanley was commenced as
a class action and that tolled the statute of limitations
152 But once tolling ends, one of two things must occur the former class members must move to
intervene or file their own lawsuits Cf Crown Cork& Seal Co 462 U S at 354 The Castillo Plaintiffs
did both 24 The question now is whether class action tolling continued while the Castillo Plaintiffs
tried to intervene in Stanley or ended on September 29 2005 once Stanley was no longer a class
action 25 This Court concludes that tolling ended when the Stanley Plaintiffs abandoned the class By
the time the Castillo Plaintiffs filed this case on June 18 2019, the statute oflimitations had run on
23 The Stanley Plaintiffs assertion that they abandoned class allegations because they did not have the requisite number
of class members required by Third Circuit precedent was unfounded See Stewart v Abraham, 275 F 3d 220 226 27
(3d Cir 2001] ( No minimum number of plaintiffs is required to maintain a suit as a class action but generally if the
named plaintiff demonstrates that the potential number of plaintiffs exceeds 40 the first prong of Rule 23(a) has been
met (emphasis added)) Nonetheless the reason why they decided to forego a class is irrelevant See Leyse 538 F
App x at 161 62 [quoting Sawyer 642 F 3d at 563]
24 Plaintiffs also filed a motion in Stanley to certify a class but only on the Virgin islands Plant Closing Act claim See
Stanley 11! 2008 U S Dist LEXIS 90024 at *11 27 Arguably the April 8 2008 motion could have tolled the statute of
limitations a second time cf. Patrickson 368 P 3d at 971 (noting the possibility for more than one motion) but only as
to the plant closing act claim and only until the District Court denied it The Court declines, however to undertaking a
tolling analysis only as to the plant closing act claim because the Supreme Court of the United States subsequently held
that tolling does not continue for class action filed after class action See China Agritech Inc 138 S Ct at 1804 ( The
question presented in the case now before us Upon denial of class certification may a putative class member in lieu of
promptly joining an existing suit or promptly filing an individual action commence a class action anew beyond the time
allowed by the applicable statute of limitations? Our answer is no ) But more importantly the Virgin islands Plant
Closing Act 24 Vic §§471 78 does not state a specific limitations period Therefore pursuant to title 5 section
31(3)(B) of the Virgin islands Code the statue of limitation would be six years for [a]n action upon a liability created
by statute Thus the statute of limitations for the plant closing act claim would not have run until August 2 2011
six years from the date the class was abandoned (September 29 2005) minus the 58 days between when the cause of
action accrued and when the class action lawsuit was filed The same analysis would apply to the wrongful discharge
claims See Renniev Hess Oil VI Corp 62 Vi 529 S40 (2015]
25 There is yet another complication only seventy seven individuals were the subject of the December 29 2005 motion
another ten were the subject of the February 1 2006 motion Thus tolling may not have resumed on December 29
2005 for all Castillo Plaintiffs [if it resumed at all)
Castillo et a] v St Cr0ix Bastervs Inc et a! 2020 Vi Super 35
SX 09 CV 299
MEMORANDUM OPINION
Page 34 of 35
the claims for breach of the duty of good faith and fair dealing [Count ll), fraud (Count Vi), illegal
retaliation and obstruction of justice (Count V) and intentional infliction of emotional distress and
negligent infliction of emotional distress [Count VI) but not the plant closing act claim (Count I II)
and the wrongful discharge claim (Count 1)
11 53 Class action tolling cannot continue indefinitely until a plaintiff finally finds the right
courthouse There must be an end date This Court holds that the end date is the date when the class
action is no longer a class Once Stanley was no longer class action the former class members could
move to intervene or file their own lawsuits Rather than file suit the Castillo Plaintiffs moved to
intervene in Stanley That was their right 36 It is not clear however that the Castillo Plaintiffs should
benefit from two waves of tolling first when they were putative members of a class, and then after
the class was abandoned, while they tried to intervene in the federal case and pile tolling upon
tolling, effectively extending the statute oflimitations indefinitely Accordingly the Court will grant
in part the Hess Defendants and the Basic Defendants motions and enter judgment on all counts
except Counts l and ill
1i54 However the Court is ofthe opinion that this issue involves a controlling question oflaw as
to which there is substantial ground for difference ofopinion and that an immediate appeal may
materially advance the ultimate termination of litigation 4 VIC § 33(c) Depending on the
approach the Virgin Islands takes the statute of limitations may have run on all claims except the
statutory claims Castillo was filed 1 359 days (or 3 years 8 months and 21 days) after Stanley was
no longer a class action All claims would be time barred if tolling does not apply because according
to the Complaint Plaintiffs were fired on February 1 2003, and this case was not commenced until
june 18, 2009 But if class action tolling applies then some or all claims may not be time barred it
would not be just Speedy [or] inexpensive V] R Civ P 1 to proceed to discovery and pre trial
litigation with approximately ninety plaintiffs and four defendants if the statute of limitations has
run on all counts nor would it be just speedy or inexpensive to proceed with only two counts if the
remaining five counts would be reinstated after a direct appeal For this reason the Court will certify
26 The order denying intervention may have been subject to immediate review Stringfellow 480 U S at 377 (citing
Bhd ofR R Trammen v Baltimore & Ohio R R Co 331 U S 519 524 25 (1947) accord Bridges 441 F 3d at 207 { [H]ad
the would be plaintiffs filed a motion to intervene under Rule 24(b] the denial of their motion would be treated as a
final judgment that is appealable ) which may be why some federal courts View such orders as dispositive and, thus,
outside the authority of a federal magistrate judge to decide in the first instance absent consent of the parties
Castillo et al v St Cr01x Basw Servs Inc, et a] 2020 VI Super 35
SX 09 CV 299
MEMORANDUM OPINION
Page 35 of 35
to the Supreme Court of the Virgin Islands the following questions (I) does the Virgin Islands
recognize intra Jurisdictional class action tolling and by extension class action tolling? and (2) if the
Virgin Islands does recognize class action tolling when does tolling end?
ll! CONCLUSION
1[55 For the reasons stated above the Court holds that the soundest rule for the Virgin Islands is
to recognize class action tolling and hold that tolling ends once the named plaintiffs abandon their
efforts to pursue a class action or the trial court in any jurisdiction determines the case cannot
proceed as a class Here the named plaintiffs chose not to proceed as a class And by the time the
former class members filed this action, the statute of limitation had run on several claims
Accordingly the Court will grant Defendants motion in part However, given the difference of
opinion around the country on class action tolling specifically whether it applies across
jurisdictions the Court will certify several controlling questions of law to the Su reme Court
Date March 10 2020 ’ /’/ a? JV
ROBE T A M LLOY
ATTEST Judge the Sn erior Court
TAMARA CHARLES
Clerk ofthe Court
By fl
Court Cl
Dated «ID 12030