Castillo v. St. Croix Basic Services, Inc., Basic Industries, Inc., Hovensa, LLC, and Amerada Hess Corporation

• Court: Superior Court of The Virgin Islands
• Decided: March 10, 2020
• Docket: SX-09-CV-299
• Status: Published

Opinion

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 Castillo, et al v St Cram BaSIC Servs, Inc, et a1 2020 Vl Super 35 SX 09 CV 299 MEMORANDUM OPINION Page 3 of 35

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] 2020 VI Super 35 SX 09 CV 299 MEMORANDUM OPINION Page 4 of 35

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! 2020 VI Super 35 8x 09 CV 299 MEMORANDUM OPINION Page 5 of 35

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 Castillo et a! v St Cram Basrc Servs Inc et al 2020 VI Super 35 SX 09 CV 299 MEMORANDUM OPINION Page 6 of 35

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 Castillo eta! v St Crozx Baschervs Inc eta! 2020 V1 Super 35 3X 09 CV 299 MEMORANDUM OPINION Page 7 of 35

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!!!! Castillo et al v St. Crow Bastervs Inc at a] 2020 VI Super 35 3x 09 CV 299 MEMORANDUM OPINION Page 8 of 35

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 Castillo et al v St Croix Basrc Servs Inc, et a! 2020 VI Super 35 SX 09 CV 299 MEMORANDUM OPINION Page 9 of 35

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 Castillo et al v St Cram 3051c Servs Inc et a] 2020 Vi Super 35 SX 09 CV 299 MEMORANDUM OPINION Page 10 of 35

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 Castillo et a] v St Crozx Baschervs Inc et a] 2020 VI Super 35 5x 09 CV 299 MEMORANDUM OPINION Page 11 of35

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] 2020 VI Super 35 sx 09 CV 299 MEMORANDUM OPINION 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 Castillo eta] v St Croix Baszc Servs Inc et al 2020 VI Super 35 SX 09 CV 299 MEMORANDUM OPINION Page 13 of3S

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 Castillo et al v St Croix Baszc Servs Inc et al 2020 VI Super 35 SX 09 CV 299 MEMORANDUM OPINION Page 14 of 35

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 Castillo et al v St Croix BasicServs Inc et a] 2020 VI Super 35 SX 09 CV 299 MEMORANDUM OPINION Page 15 of 35

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 Castillo et al v St Cram Basic Sen/s Inc et a! 2020 VI Super 35 8X 09 CV 299 MEMORANDUM OPINION Page 16 of 35

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 Castillo et a] v St Croix BasicServs Inc et a] 2020 VI Super 35 SK 09 CV 299 MEMORANDUM OPINION Page 17 of 35

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 Castillo et a] v St Cram BasicServs Inc et a] 2020 VI Super 35 3X 09 CV 299 MEMORANDUM OPINION Page 18 of 35

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 Castillo et a] v St Croix Basic Servs, Inc at al 2020 VI Super 35 SX 09 CV 299 MEMORANDUM OPINION Page 19 of 35

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 ) Castillo, et al v St. Croix Basw Servs Inc et a] 2020 VI Super 35 3X 09 CV 299 MEMORANDUM OPINION Page 20 of 35

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) Castillo et al v St Crozx BasrcServs Inc at a] 2020 VI Super 35 SX 09 CV 299 MEMORANDUM OPINION Page 21 0f35

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) Castillo, et a! v St Craix Basic Servs, Inc, et a] 2020 VI Super 35 3X 09 CV 299 MEMORANDUM OPINION Page 22 of 35

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 Castillo et al v St Crozx Basic Servs Inc at a] 2020 Vi Super 35 8X 09 CV 299 MEMORANDUM OPINION Page 23 of 35

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 Castillo et a! v St Croix Ba51c Servs Inc et a] 2020 Vl Super 35 8X 09 CV 299 MEMORANDUM OPINION Page 24 of 35

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 ] Castillo et a] v St Cram Basrc Servs Inc et a] 2020 VI Super 35 8x 09 CV 299 MEMORANDUM OPINION Page 25 of 35

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 Castillo, et a! v St Crozx Bastervs, Inc et a! 2020 VI Super 35 8X 09 CV 299 MEMORANDUM OPINION Page 26 of 3S

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 Castillo et al v St Cram Basm Servs Inc et a] 2020 V1 Super 35 sx 09 CV 299 MEMORANDUM OPINION Page 27 of 35

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 Castillo et al v St Crozx BasrcServs Inc at a! 2020 VI Super 35 3X 09 CV 299 MEMORANDUM OPINION Page 28 of 35

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 Castillo et al v St; 0"le Baschervs Inc et a] 2020 V1 Super 35 SX 09 CV 299 MEMORANDUM OPINION Page 29 of 35 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 Castillo et a] v St Crozx Basic Servs Inc at a] 2020 VI Super 35 SX 09 CV 299 MEMORANDUM OPINION Page 30 of35 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 Castillo, eta! v St Croix 30816 Servs Inc eta] 2020 VI Super 35 SK 09 CV 299 MEMORANDUM OPINION Page 31 of 35

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 Castillo et a! v St Cram Baschervs, Inc et a] 2020 Vi Super 35 5X 09 CV 299 MEMORANDUM OPINION Page 32 of 35

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 ) Castillo et al v St Croix Baszc Servs Inc, et a] 2020 VI Super 35 5X 09 CV 299 MEMORANDUM OPINION Page 33 of 35

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