FOR OFFICIAL PUBLICATION



SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX



TOMAS ESPIRITUSANTO,



Plaintiff,

VY.

HESS OIL VIRGIN ISLANDS CORPORATION;

AMERADA HESS CORPORATION; and SPX

CORPORATION, as successor-in-interest

to LITWIN CORPORATION,



Defendants.



CASE NO. SX-06-CV-618

COMPLEX LITIGATION DIVISION



Coordinated Under: In re: Refinery Dust

Claims, Master Case No. SX-06-CV-078



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Cite as: 2019 VI Super 168



Appearances:



THOMAS ALKON, ESQ.



Law Office of Thomas Alkon, P.C.

Christiansted, VI 00822



JERRY H. EVANS, ESQ.“



Richardson Patrick Westbrook & Brickman, LLC



Mt. Pleasant, SC 29464

For Plaintiff



CARL A. BECKSTEDT, III, ESQ.

Beckstedt & Associates

Christiansted, VI 00820



CAROLYN F. O’CONNOR, ESQ. (pro hac vice)*

Wilson Elser Moskowitz Edelman & Dicker

Newark, N.J. 07102



For Hess Oil Virgin Islands Corporation and Amerada Hess Corporation



ANDREW C. SIMPSON, ESQ.



Law Office of Andrew C. Simpson, P.C.

Christiansted, V.I. 00820



For SPX Corporation



* Appearance only in the master case.

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MEMORANDUM OPINION

Page 2 of 11



MEMORANDUM OPINION

MOLLOY, Judge.



q1 BEFORE THE COURT is a withdrawal filed by the Plaintiff Tomas Espiritusanto

(“Espiritusanto”) of a motion to dismiss. Defendants Hess Oil Virgin Islands Corporation (“HOVIC”)

and Hess Corporation (“Hess”) (collectively “Hess Defendants”) oppose the withdrawal, arguing

that the motion cannot be withdrawn because it was granted. For the reasons stated below,

Espiritusanto’s withdrawal, construed as a motion for relief from judgment, will be denied.



I, FACTUAL AND PROCEDURAL BACKGROUND

72 Espiritusanto filed a complaint in the Superior Court of the Virgin Islands on October 13,

2006 against HOVIC, Hess, and SPX Corporation (“SPX”), claiming they were negligent in allowing

him to be exposed to “mixed dusts” while he worked at the oil refinery HOVIC owned and operated

on St. Croix. By “mixed dusts,” Espiritusanto meant exposure to asbestos, silica dust, catalyst, and

other toxic or dangerous dusts that resulted in him being “diagnosed with mixed dust

pneumoconiosis ....” (Compl. J 12.)

3 Hess and HOVIC both appeared on November 3, 2006 and answered the complaint. SPX also

appeared but filed a motion to dismiss for lack of personal jurisdiction in which it acknowledged

that it had been the “indirect” parent company of Litwin Corporation “[flrom 1978 to 2001,” and

became the “ultimate parent of Litwin” “[o]n May 24, 2001,” (Def. SPX Corp.’s Mot. to Dismiss for

Lack of Pers. Jur. 2, filed Nov. 22, 2006), but argued that, unlike Litwin, it lacked any contacts with

the Virgin Islands that would subject it to the personal jurisdiction of the Virgin Islands courts.

q4 Rather than file a response to SPX’s motion, Espiritusanto filed a notice on December 13,

2006, signed also by SPX, to voluntarily dismiss his claims with prejudice. The Court (Brady, J.)

issued an order to the same effect on December 19, 2006, dismissing Espiritusanto’s claims against

SPX with prejudice.

15 In the interim, on November 16, 2006, counsel for Espiritusanto and seventy-three other

individuals who filed similar lawsuits against the Hess Defendants filed a motion in Cuthbert

Anthony v. Hess Oil Virgin Islands Corporation, et al, but directed to the attention of the Presiding

Judge, to request approval of a stipulated case management order and creation of a master case and



docket under the caption In re: Refinery Dust Claims so discovery could be coordinated in the

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seventy-four cases.

76 Further background was detailed by the Court (Willocks, J.) ina May 3, 2016 Opinion issued

in the master case:



In February 2006, forty-three plaintiffs (hereinafter, “Group One”) each filed a

separate Complaint against ... HOVIC, ... Hess, and .. . Litwin Corporation

(hereinafter, “Litwin”). The Group One plaintiffs sought damages for injuries

sustained from alleged exposure to dangerous dust, including but not limited to,

asbestos, catalyst, and silica, while working at ... [the] refinery in St. Croix....



Subsequently ... Litwin filed a Third-Party Complaint in each lawsuit in Group

One in March 2006, and then an Amended Third-Party Complaint in April 2006,

naming the following businesses as Third-Party Defendants: UOP, LLC (hereinafter,

“UOP”), Shell Oil Corporation (hereinafter, “Shell”), Riggers and Erectors

International, Inc. (hereinafter, “Riggers”), Communication Systems and Maintenance

Corporation (hereinafter, “CSM”), Virgin Islands Industrial Maintenance Corporation

(hereinafter, “IMC”), Chicago Bridge and Iron Company, N.V. (hereinafter, “CBI”)

(individually and as successor in interest to Chicago Bridge and Iron), and A.P. Green

Services Inc. (hereinafter, “APG”) (individually and as successor in interest to

Bigelow-Liptak Corporation). In response... UOP,..Shell,...IMC,... Riggers, and...

CBI each filed a separate Answer to the Amended Third-Party Complaint. ... CSM and

... APG never filed an answer and Defendant Litwin took no further actions as to these

two parties.



In October 2006, thirty-one plaintiffs (hereinafter, “Group Two”) each filed a

separate Complaint against... HOVIC, ... Hess, and ... SPX Corporation... as

successor-in-interest to Litwin .... The Group Two plaintiffs sought damages for

injuries sustained from alleged exposure to dangerous dust, including but not limited

to, asbestos, catalyst, and silica, while working at... [the] refinery in St. Croix....

Litwin was not named as a defendant by the Group Two plaintiffs, and thus... Litwin

did not file a third-party complaint in any of the lawsuits in Group Two,



In August 2007, the Court consolidated the Group One plaintiffs and the Group

Two plaintiffs, and issued a Case Management Order which created a master case file

and docket, captioned as In Re: Refinery Dust Claims, and used Plaintiff Cuthbert

Anthony's case number, SX-06-CV-78, as the master docket number. The parties were

ordered to file under the master docket only pleadings, motions, or other documents

that applied to more than one plaintiff's case.



In re: Refinery Dust Claims, SX-06-CV-078, 2016 V.I. LEXIS 48, *1-5 (V.I. Super. Ct. May 3, 2016)



(footnotes omitted).! Since Espiritusanto filed his complaint in October 2006, and sued SPX and not



! For reasons unclear from the record, the November 16, 2006 motion to approve stipulated case management order

was directed to the attention of “Rhys Hodge, Presiding Judge,” (Pl.s Mot. to Approve Stip. Case Mgmt Order 2, filed Nov.

16, 2006, In re: Refinery Dust Claims, SX-06-CV-078), but ruled on by the judge assigned to Anthony, the Honorable

Francis J. D’Eramo. Any error would have been cured when the Presiding Judge, the Honorable Darryl Dean Donohue,

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MEMORANDUM OPINION



Page 4 of 11



Litwin, his case was part of Group Two.



q7 Per the parties’ stipulation, discovery proceeded in both sets of cases simultaneously, even

though only the Hess Defendants remained in the Group Two cases, and no third-party litigation

was involved. But on May 18, 2011, the Hess Defendants filed a motion in the master case to dismiss

four plaintiff's cases—Leighton Burt, Tomas Espiritusanto, Michael Joseph, and Julian Registe—

because they failed to appear for examinations the Hess Defendants and Litwin scheduled for “[t]he

weeks of February 21, 2011 and March 28, 2011....” (Hess Defs.’ Mot. to Dismiss 2, filed May 18,

2011, In re: Refinery Dust Claims, SX-06-CV-078.) Espiritusanto and Burt also “failed to respond to

discovery served ... on February 24, 2009.” /d. at 1. The Hess Defendants asked that the Court

compel the four Plaintiffs to attend and pay for their own Rule 35 exams or dismiss their complaints

due to their “failure to comply with the discovery rules ....” /d. at 4 (citing Island Trashmoval Serv.,

Inc. v. Gov't of the V.L, 24 V.1. 72, 73 (Terr. Ct. 1988)).



18 Counsel for the four Plaintiffs responded on May 25, 2011, by filing a motion for a 30-day

extension of time. In the motion, counsel explained that needed more time to “locat[e] these

Plaintiffs who have either moved off-island or perhaps died.” (Pls.’ Mot. for Ext. of 30 Days to Resp.

to Defs.’ Mot. to Dismiss 1, filed May 25, 2011, In re: Refinery Dust Claims, SX-06-CV-078.) Counsel

further represented that if he “cannot locate Plaintiffs or any one of them counsel will not oppose a

dismissal and will otherwise make these remaining Plaintiffs available for a medical exam.” /d.



19 On July 19, 2011, Burt, Espiritusanto, and Registe filed a joint stipulation in the master case

with the Hess Defendants to dismiss their claims “WITH PREJUDICE, each party to bear their own

costs and fees.” (Stip. for Dismissal with Prejudice 1, filed July 19, 2011, In re: Refinery Dust Claims,

SX-06-CV-078.) A proposed order was also submitted, which the Court (Willocks, J.) signed on

August 9, 2011. And, even though the order was captioned In re: Refinery Dust Claims / Cuthbert

Anthony, et al. v. Hess Oil Virgin Islands Corp., et al., case number SX-06-CV-078, the Clerk’s Office

entered the order in the individual plaintiffs’ cases. The August 9, 2011 Order was entered in this

case on August 12, 2011.



410 OnDecember 7, 2012, Espiritusanto, through counsel, filed a document in his individual case



Sr, issued an order on February 23, 2009 reassigning all cases grouped under the Refinery Dust Claims master case to

Judge D’Eramo.

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MEMORANDUM OPINION



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as well as the master case titled “Withdrawal of Motion for Dismissal,” which explained that



Plaintiff after filing his lawsuit in 2006 returned to the Dominican Republic. Efforts

over the years were unavailing in trying to contact him and he never contacted the

office. In 2011 Hovic scheduled a medical examination of Espritusanto [sic], however,

we could not contact him. Therefore Hovic moved to dismiss his suit. We again tried

to reach Espritusanto [sic] but were unsuccessful. Accordingly we entered into a joint

stipulation to dismiss. On December 4, 2011 Espritusanto [sic] contacted this office

by telephone from the Dominican Republic. In as much as our reason for entering into

the stipulation of dismissal was based on our lack of contact and we now have contact

we are withdrawing our stipulation.



(Pl.’s Withdrawal of Mot. for Dismissal 1, filed Dec. 7, 2012 (paragraph breaks omitted).)

11 The Hess Defendants responded on December 11, 2012, and opposed “Espiritusanto’s

request to withdraw his Motion to Dismiss because this Court... previously dismissed this matter

with prejudice on August 9, 2011.” (Hess Defs.’ Opp’n to PI.’s Withdrawal of Mot. for Dismissal 1,

filed Dec. 11, 2012.) The Hess Defendants argued that Espiritusanto was “prohibited from

reopening this action.” /d. Espiritusanto did not reply to the Hess Defendants’ response.

412 This case, along with the master case and the other individual cases grouped under the

Refinery Dust master case, was designated complex and reassigned to the undersigned judicial

officer by the Presiding Judge in September 2018.



II. DISCUSSION

§13 Generally, “court approval is not required to withdraw a motion... .” Albert v. Hess Oil V.L

Corp., 70 V.I. 316, 323 (Super. Ct. 2019); accord Mitchell v. Gen. Eng’g Corp., 67 V.1. 271, 277 (Super.

Ct. 2017) (collecting cases). But cf, e.g., Cardenas v. Superior Court of L.A. Cty., 363 P.2d 889, 891 (Cal.

1961) (“If something had occurred to prejudice the opposing party by the motion's withdrawal, a

different question would be presented .. . .”). But a motion cannot be withdrawn if the court has

ruled on it. Accord Griffin v. Kelly, 162 F.R.D. 353, 354 (D. Kan. 1995) (“The motion cannot be

withdrawn at this time since it has already been properly ruled on by the court.”); see also Wallace

v. Ford, 253 N.Y.S.2d 608, 610 (Sup. Ct. 1964) (“While a party has a right to withdraw a motion at

any time before submission, once a motion has been ‘submitted’, it may not be withdrawn except

by consent of the parties or by an order of the court upon such conditions as the court sees fit to

impose. A motion has been ‘submitted’ to the court when the movant makes his oral argument or



absent an oral argument when he presents his papers to the Clerk after the call of the case on the

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MEMORANDUM OPINION



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return day.” (citations omitted)).



q14 = In this instance, however, Espiritusanto did not file a motion, at least not technically. Instead,

Espiritusanto, jointly with the Hess Defendants, filed a stipulation for dismissal and “a stipulation

of dismissal ordinarily is automatically effective and does not require the court's approval.” Island

Tile & Marble, LLC v. Bertrand, 57 V.1. 596, 611 (2012) (citation omitted). In fact, “if a plaintiff

effectuates an unconditional voluntary dismissal pursuant to . .. Rules 41(a)(1)(A)(i) or (ii), the

action terminates immediately upon filing the appropriate notice with the Clerk of the Superior

Court, and neither the judge nor the plaintiff will possess the ability to undo the dismissal.” Id. To

be self-executing, however, the stipulation must “contain the signatures of ‘all parties who have

appeared,” id. at 613, “includ[ing] former or dismissed parties.” In re: Alumina Dust Claims, 2019 VI

Super 139 J 17 (comma omitted).



q15 Here, the July 19, 2011 stipulation was signed by counsel for Burt, Espiritusanto, and Registe

as well as counsel for the Hess Defendants. Burt and Espiritusanto had also sued SPX; Registe had

also sued Litwin. And Litwin filed a third-party complaint in every Group One case including

Registe’s. None of the other parties signed, however, and “every defendant who has appeared in a

multi-defendant litigation, as well as any third-party defendants and intervenors” must sign the

stipulation for dismissal for it to “quality for treatment as a unanimous instrument under... Rule

41(a)(1)(A)(ii).” Island Tile & Marble, LLC, 57 V.1 at 613. Since the July 19, 2011 stipulation did not

contain the signatures of all parties, it was not self-executing. Instead, it required the approval of

the Superior Court to become effective, which means the July 19, 2011 stipulation was essentially a

motion. Cf Island Tile & Marble, LLC, 57 V.1. at 610 (“The label placed on the paper filed by the

plaintiff is of no significance ....” (citation omitted)); Theodule v. Hess Oil V.I. Corp., 69 V.I. 460, 468

(Super. Ct. 2018) (“‘[W])hen court approval is required, a stipulation is akin to a motion... .””

(citation omitted)). Yet, even though the stipulation is akin to a motion, Espiritusanto’s attempt to

withdraw it is still ineffective.



q16 The Hess Defendants contend that Espiritusanto’s December 7, 2012 withdrawal is

ineffective because he “is prohibited from reopening this action.” (Hess Defs.’ Opp’n 1.) And there is

support for that position, namely Island Tile & Marble, LLC where the Supreme Court of the Virgin

Islands held that “neither the judge nor the plaintiff will possess the ability to undo the [stipulated]

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MEMORANDUM OPINION



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dismissal.” 57 V.I. at 611 (emphasis added). At first glance, Island Tile does appear to be dispositive.

But the issue in [sland Tile was whether the Superior Court has the authority to reconsider an order

approving a stipulation for dismissal. See id. at 608. The Supreme Court concluded that the Superior

Court does have the authority to set aside an order of dismissal, so long as the Superior Court had

the authority to approve the stipulation in the first place. See id. at 613-14 (“Accordingly, because

the Superior Court possessed the authority to enter an order granting or denying the stipulation, it

also had the authority to modify or set aside the order prior to entry of a final judgment.”). There is

no question that the Court possessed the authority to approve the July 19, 2011 stipulation. But the

Hess Defendants are still not correct that Espiritusanto is barred from reopening this action. He is

not.? But his withdrawal is still ineffective. Two reasons compel this conclusion.



{17 First, Espiritusanto filed his motion/stipulation jointly with the Hess Defendants. As it was

not his alone, he cannot take it back unilaterally. Second, and more importantly, Espiritusanto

cannot withdraw the stipulation/motion because the Court acted on it. By order dated August 9,

2011, the Court approved the July 19, 2011 stipulation and ordered “the following matter[] be

dismissed, WITH PREJUDICE... Tomas Espiritusanto, Civil No. SX-06-CV-618....” (Order 1, entered

Aug. 12, 2011.) Once SPX was dismissed in December 2006, only Hess and HOVIC remained. And

once they were dismissed in August 2011, this case ended.3 Thus, this case closed on August 12,



2011, when the Clerk’s Office entered the August 9, 2011 Order.



2 Although not directly raised, several courts have held that relief from self-executing stipulations for dismissal can be

granted, Cf Love v. Wal-Mart Stores, Inc., 865 F.3d 1322, 1327-28 (11th Cir. 2017) (Anderson, J. concurring) (“And itis

broadly accepted that courts retain jurisdiction to consider motions to reopen the judgment under Rule 60(b) after a

Rule 41(a}(1) dismissal.” (citing Yesh Music v. Lakewood Church, 727 F.3d 356, 363 (5th Cir. 2013)); accord Yesh Music,

727 F.3d at 361 (“Rule 60(b) speaks of relief from a final proceeding as well as a final judgment or order. The dismissal

of the suit was, in our view, a proceeding, and it was clearly final. In sum, the court had the power to reopen the

dismissed suit.” (quoting Williams v. Frey, 551 F.2d 932, 934-35 (3d Cir. 1977)); see also In re: Brewer, 863 F.3d 861,

869 (D.C. Cir. 2017) (“In our view, a stipulated dismissal, aside from its immediate effectiveness, is no different in

jurisdictional effect from a dismissal by court order: Each resolves all claims before the court, leaving it without a live

Article If case or controversy.”). Thus, even if the July 19, 2011 stipulation did not require the signature of SPX to be

self-executing as to Espiritusanto’s and Burt's cases, the Court would still be able to grant relief if warranted.



3 Technically, the Clerk’s Office did not close this case or remove it from the master case. Assuming, arguendo, that

noting on the docket that the case is closed or removing an individual case from the master case are required tasks,

neither task would have kept this case open. Accord Penn-Am. Ins. Co. v. Mapp, 521 F.3d 290, 295 (4th Cir. 2008) (“Put

simply, an otherwise nonfinal order does not become final because the district court administratively closed the case

after issuing the order. .. . ‘An order administratively closing a case is a docket management tool that has no

jurisdictional effect.” (quoting Dees v. Billy, 394 F.3d 1290, 1294 (9th Cir. 2005)). See also George v. Hess Oil V.L Corp.,

2019 VI Super 150 J 16 (“Ancillary issues would not keep a case open....”).

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718 Since the July 19, 2011 stipulation/motion was acted on by the Court, Espiritusanto cannot

withdraw it. Thus, despite its label, the December 7, 2012 “withdrawal” is also a motion. Cf Der

Weer v. Hess Oil V.I. Corp., 64 V.1. 107, 129 (Super. Ct. 2016) (“A motion is an application, oral or

written, addressed to a court or a judge, by a party to an action or proceeding, or by one interested

therein, asking the court or judge to make an order in such action or proceeding.” (citation

omitted)); see Island Tile & Marble, LLC, 57 V.1. at 612 (“[T]he substance of a motion, and not its

caption, shall determine under which rule that motion is construed.” (citation omitted)).

Additionally, since the August 9, 2011 Order resolved all of Espiritusanto’s remaining claims, it

constitutes the final order in this case. Cf State Nat'l Ins. Co. v. Cty. of Camden, 824 F.3d 399, 408 n.31

(3d Cir. 2016) (“[A] voluntary dismissal with prejudice constitutes a final order, thereby making

interlocutory orders appealable.”). Accord Yearwood Enters., Inc. v. Antilles Gas Corp., 69 V.1. 863,

870 (Super. Ct. 2018) (recognizing that “a final order” may be “in the form of voluntary dismissal or

otherwise ....”). As a result, the December 7, 2012 withdrawal/motion must be construed as a

motion for relief from judgment since Espiritusanto seeks to withdraw, or undo, the dismissal and

can continue his claims against the Hess Defendants.



719 Atthe time when Espiritusanto filed his motion, a party could obtain relief from a judgment

or final order “for good cause shown....”” Walters v. Parrott, 58 V.I. 391, 412 (2013) (quoting Super.

Ct. R. 50). Rules 59, 60, and 61 of the Federal Rules of Civil Procedure governed such “applications”

to “set aside... judgment... .” /d. at 412-13 (quoting Super. Ct. R. 50). Relief under Rule 59 was

limited to no more than ten days after the judgment, however. See id. at 413. The August 9, 2011

Order which approved the July 19, 2011 stipulation was entered on August 12, 2011. Espiritusanto

filed his withdrawal motion on December 7, 2012, approximately a year and four months later.

Clearly, Espiritusanto filed his motion after the 10-day deadline expired and cannot obtain relief

under Rule 59.



{20 Rule 60 also authorizes relief from judgment. Specifically, Rule 60(b)(1) provides for relief

based on “mistake, inadvertence, surprise, or excusable neglect ....” Jd. (quoting Fed. R. Civ. P.

60(b)). Espiritusanto’s motion could fall under Rule 60(b)(1) insofar as counsel had represented to

the Court, in the May 25, 2011 motion for a 30-day extension of time, that Espiritusanto may have



moved back to the Dominican Republic. Clearly, counsel lost contact with his client. Contra In re:

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Rogers, 56 V.I. 325, 331 n.15 (2012) (“Rule 1.4 of the ABA Rules of Professional Conduct—adopted

by this Court in Rule 203(a) of the Supreme Court Rules—requires attorneys to maintain contact

with their clients and keep them ‘reasonably informed about the status of the matter.” (referring to

rules in effect at the time)). And “it is the client, and not the lawyer, that is vested with the ultimate

decision of whether to settle a civil claim....” In re: Suspension of Welcome, 58 V.1. 236, 250 (2013)

(per curiam). lt appears now that counsel agreed to dismiss Espiritusanto’s claims only because he

assumed Espiritusanto had abandoned this case. (Cf Pl’s Withdrawal of Mot. to Dismiss 1 (“In as

much as our reason for entering into the stipulation of dismissal was based on our lack of contact

and we now have contact we are withdrawing our stipulation.”).) But counsel should seek Jeave to

withdraw if contact with the client is lost, not enter into a stipulation to dismiss the client’s case. Cf

Carling v. Mode a Porter, Ltd., No. 88 Civ. 2864 (PKL), 1989 U.S. Dist. LEXIS 9833, *5 (S.D.N.Y. Aug.

18, 1989) (granting leave to withdraw) (“It is fundamental that an attorney who cannot contact his

client cannot properly represent that client’s interests.”). Nonetheless, courts have suggested that

relief could be available under Rule 60(b)(1) if counsel lacks authority to dismiss his client’s claims.

Cf Webb v. City of N.Y., No. 08-CV-5145(CBA)(JO), 2010 US. Dist. LEXIS 86234,*9 (E.D.N.Y. Aug. 20,

2010) (citing Nemaizer v. Baker, 793 F.2d 56, 62 (2d Cir. 1986), and explaining that dicta “suggest[s]

that an allegation ‘that former counsel lacked authority to enter into a stipulation’ dismissing claims

with prejudice might provide an avenue for relief under Rule 60(b)(1).” (brackets omitted))



{21 But relief under Rule 60(b)(1) is limited to a year after entry of the final order. See Fed. R.

Civ. P. 60(c) (“A motion under Rule 60(b) must be made within a reasonable time—and for reasons

(1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the

proceeding.”), reprinted in V.I. Ct. Rules Ann. 633 (2013 ed.). See also V.I. R. Civ. P. 6(b)(2) (“A court

may not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b).”).

Thus, Espiritusanto cannot obtain relief under Rule 60(b)}(1). Clearly, Espiritusanto also cannot

obtain relief under Rule 60(b)(2) or (3).



722 Relief could be available under Rule 60(b)(6). Cf United States v. Gelb, No. 86 Civ. 1552 (CSH),

1991 U.S. Dist. LEXIS 1507, *8 n.7 (S.D.N.Y. Feb. 4, 1991). But only if relief would not have been

available under Rule 60(b)(1). See id. at *11 (“Defendant cannot use 60(b)(6) to make an end run

around the strictures of 60(b)(1).” (citing United States v. Erdoss, 440 F.2d 1221, 1223 (2d Cir.

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1971)); Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986)). “Rule 60(b)(1) and Rule 60(b)(6) are

mutually exclusive, such that any conduct which generally falls under the former cannot stand as a

ground for relief under the latter.” Appleton v. Harrigan, 61 V.1. 262, 269 n.7 (2014). However, “Rule

60(b)(6) ‘provides for extraordinary relief and may only be invoked upon a showing of exceptional

circumstances.” Gould v. Salem, S. Ct. Civ. No. 2010-0098, 2012 V.L Supreme LEXIS 47, *10 (V.I. May

31, 2012). “[A]lthough exceedingly rare, it is not impossible for a lawyer's failures to constitute

‘extraordinary circumstances.” Webb, 2010 U.S. Dist. LEXIS 86234 at * 11 (quoting Harris v. United

States, 367 F.3d 74, 81 (2d Cir. 2004)). Cf Gelb, 1991 US. Dist. LEXIS 1507 at *8 n.7. But most courts

refuse to grant relief under Rule 60(b)(6) if an attorney lacked actual authority to settle his clients’

claims.



{23 Having appeared for Espiritusanto, counsel had apparent authority to enter into the July 19,

2011 stipulation. Although counsel did alert the Court that Espiritusanto may have moved off-island

and that he needed some time to get in touch with him, the stipulation did not provide any reasons

for the dismissal. "‘Normally a party is bound by his stipulations as a stipulation is akin to a

contract.” United States v. Morales, 684 F.3d 749, 755 (8th Cir. 2012) (ellipsis omitted) (quoting

Rathborne Land Co., L.L.C. v. Ascent Energy, Inc., 610 F.3d 249, 262 (5th Cir. 2010)). Virgin Islands

law at the time recognized that “enforcing settlement agreements on the basis of apparent authority

is consistent with the principles of agency law, the policies favoring settlements generally, and the

notions of fairness to the parties in the adjudicatory process.” Edwards v. Born, Inc., 792 F.2d 387,

390 (3d Cir. 1986); accord Scott v. Burns Int'l Sec. Servs., 165 F. Supp. 2d 1133, 1139 n.5 (D. Haw.

2001) (“An attorney can bind his client to a settlement without express consent if he has apparent

authority.”); see also, e.g., Fennell v. TLB Kent Co., 865 F.2d 498, 502 (2d Cir. 1989) (“[I]f an attorney

has apparent authority to settle a case, and the opposing counsel has no reason to doubt that

authority, the settlement will be upheld.” (citing Int'l Telemeter Corp. v. Teleprompter Corp., 592 F.2d

49, 55 (2d Cir. 1979)). Espiritusanto, HOVIC, and Hess, through counsel, entered into a stipulation

in July 2011 to dismiss Espiritusanto’s claims with prejudice. That stipulation is binding on

Espiritusanto.



724 One final point bears mentioning. Counsel for Espiritusanto appears to have been unaware



that the July 19, 2011 stipulation was approved. In his December 7, 2012 withdrawal motion,

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Espiritusanto states that “[t]h[e] stipulation has not yet been acted upon by the court.” (PI.’s

Withdrawal of Mot. to Dismiss 1.) Clearly, that was incorrect and counsel for the Hess Defendants,

in their December 11, 2012 opposition, attached a copy of the August 9, 2011 Order and the August

19, 2011 Notice of Entry to show that the stipulation had been acted on by the Court. Even assuming,

arguendo, that Espiritusanto was unaware that his claims had been dismissed in 2011 when he filed

his withdrawal motion, he became aware on December 11, 2012 when the Hess Defendants served

him with a copy of the order. He did not reply. Moreover, Espiritusanto “contacted this office,”

meaning his attorney’s office, “by telephone from the Dominican Republic” “[o]n December 4, 2011.”

(Pl.’s Withdrawal of Mot. to Dismiss 1, filed Dec. 7, 2012). Yet, he waited until three days shy of a

year—from December 4, 2011, when he phoned his attorney, to December 7, 2012, when his

attorney filed the withdrawal motion—to attempt to withdraw his stipulation and, when the Hess

Defendants said it was too late, he failed to reply. As the Supreme Court of Hawai'i reasoned, “‘any

failure on the part of the client to object to an unauthorized act within a reasonable time after

becoming aware of it will be construed as a ratification of it.” Hawai'i Hous. Auth. v. Uyehara, 883

P.2d 65, 72,77 (Hawai'i 1994) (citation omitted)).

Ill. CONCLUSION

{25 For the reasons stated above, Espiritusanto’s withdrawal, construed as a motion for relief



from judgment, must be denied. An appropriate order follows.



Date: December 6, 2019 LLM: ple



ROBERP/A. MOLYOY

ATTEST: Judge of the Superior Court

ESTRELLA H. GEORGE



Cierk of the Court



Liye PZ



Court Clerk

Dated: tb be, C/o wO+