SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX
IN RE: CERTAIN CASES UNDER A DISCRETIONARY BANKRUPTCY STAY.
JULIAN ST. ROSE; VIRGINIE GEORGE; Case No. SX-2002-CV-00598 RAYMOND ALLEYNE; EDGAR BARRIOS; AND OTHER PERSONS TOO NUMEROUS TO MENTION, A Action for Damages CLASS ACTION, Complex Litigation Division PLAINTIFFS, Jury Trial Demanded V.
VIRGIN ISLANDS INDUSTRIAL MAINTENANCE CORPORATION; HOVENSA, LLC; HOVIC; AND THE HESS CORPORATION, FORMERLY KNOWN AS AMERADA HESS CORPORATION,
DEFENDANTS.
DIANE CORNWALL; ELTON CLENDENEN; AND Case No. SX-2002-CV-00641 OTHER SIMILARLY SITUATED WHO ARE TOO NUMEROUS TO IDENTIFY, A CLASS ACTION, Action for Damages
PLAINTIFFS, Complex Litigation Division
V. Jury Trial Demanded
VIRGIN ISLANDS INDUSTRIAL MAINTENANCE CORPORATION; HOVENSA, LLC; AND PINNACLE SERVICES, LLC,
JUAN CASTILLO; STIRLING CANNONIER; Case No. SX-2009-CV-00299 ANDREW BRIDGEWATER; ELISHA MONDESIR; ROGER CAUL; JULIAN THOMAS; TIMOTHY Action for Damages DANIEL; FELTON WARNER; LUIS FULGENCIO; JOHN STEEDLEY; OLIVER MARCELLE; ELI Complex Litigation Division RODRIGUEZ; GRANTLEY YOUNG; ORAL STANLEY; GERALD WELLS; AUBREY Jury Trial Demanded MACEDON; SABINO FELIX CASTILLO; ANDRES NIEVES, JR.; ROQUE MELO-POLANCO; ALBERT WILLIAMS; DAVID GRIFFITH; ANTONIO GEORGE; ANDREA FREEMAN; NESSIE SMITHEN- FRANCIS; CECIL COKER, JR.; 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 INCE; MIGUEL ENCARNACION; DESMOND EMANUEL; OMARI DALEY; MAURECIO COMMABATCH; JERRY O’REILLY; TRENT WILLIAMS; DENNIS ANTONIO FERDINAND; RICKY CALEB; KENNETH WILLIAMS; GILBERTO CAMACHO; STEADFORD BUFFONG; CLIFFORD EMMANUEL; STEVE TINDELAND; MALCOLM FABIO, JR., MIGUEL FIGUEROA; PETER CUFFY; WULSTON PAUL; JOSEPHAT EDWARDS; OVIDIO AQUINO; VINCENT ADAMS, JR.; PAUL STEPHEN HENRY; ORTIZ DWIGHT BROWNE; SHERN MAYNARD; PETER COLE; JOSEPH OSCAR; MARCELLUS PHILLIP; JEFFERY NATIONS; SYRON PETER BLAKE; VIVIAN LAWRENCE; BEDI HUGGINS; EUSTACE CHARLES; MIGUEL BERMUDEZ; PIUS AURELIEN; DENNIS JULES; SIMONE ABRAMSON; PETER GEORGE; MITCHE MATTHEWS; BENEDICT AUSTRIE; DALE ORRIN CONNOR; MANUEL REYES; SYDNEY SEALEY; MIGUEL CAMACHO; JUNIOR RICHARDS; BARRY HALL; BRENT WILLIAMS; JONATHAN SANTIAGO GONZALES; DAVID ALEXANDER; HUGH EVANS; AND VAUGHN NEVIN WARNERS,
PLAINTIFFS,
V.
ST. CROIX BASIC SERVICES, INC.; BASIC INDUSTRIES, INC.; HOVENSA, LLC; AND AMERADA HESS CORPORATION,
DEFENDANTS. IN RE: REFINERY HYDROCARBON RELEASE Master Case No. SX-2015-CV-00100 LITIGATION. Complex Litigation Division
IN RE: DISPUTE RESOLUTION PLAN – Master Case No. SX-2019-MC-00053 EMPLOYER RETALIATION LITIGATION. Complex Litigation Division
Cite as 2023 VI Super 74
Appearances:
LEE J. ROHN, ESQ. Lee J. Rohn and Associates, LLC Christiansted, VI 00820 For Plaintiffs (all cases)
RHEA LAWRENCE, ESQ. Lee J. Rohn and Associates, LLC Christiansted, VI 00820 For Plaintiffs (in Case No. SX-2002-CV-00641, in Case No. SX-2009-CV-00299, and in Master Case No. SX-2015-CV-00100)
MARY FAITH CARPENTER, ESQ. Lee J. Rohn and Associates, LLC Christiansted, VI 00820 For Plaintiffs (in Case No. SX-2002-CV-00641, in Master Case No. SX-2015-CV-00100, and in Master Case No. SX-2019-MC-00053)
CARL A. BECKSTEDT, III, ESQ. EARNESTA L. TAYLOR, ESQ. Beckstedt & Kuczynski LLP Christiansted, VI 00820 For Hess Corporation, Hess Oil Virgin Islands Corporation n/k/a HONX, Inc., and HOVENSA, LLC (all cases)
ADAM G. CHRISTIAN, ESQ. CHARLES E. ENGEMAN, ESQ. MICHAEL G. MORRISON, II, ESQ. Ogletree, Deakins, Nash, Smoak & Stewart, LLC St. Thomas, VI 00802 For Wyatt VI, Inc. (in Master Case No. SX-2015-CV-00100) In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 4 of 25
CHARLES E. LOCKWOOD, ESQ. Dudley Newman Feuerzeig LLP Christiansted, VI 00820 For Virgin Islands Industrial Maintenance Corporation (in Case No. SX-2002-CV-00598) For St. Croix Basic Services, Inc. and Basic Services, Inc. (in Case No. SX-2009-CV-00299) For Turner St. Croix Maintenance, Inc. (in Master Case No. SX-2015-CV-00100)
GREGG R. KRONENBERGER, ESQ. Dudley Newman Feuerzeig LLP Christiansted, VI 00820 For Virgin Islands Industrial Maintenance Corporation (in Case No. SX-2002-CV-00598 and in case No. SX-2002-CV-00641)
GEORGE H. LOGAN, ESQ. Dudley Newman Feuerzeig LLP Christiansted, VI 00820 For Virgin Islands Industrial Maintenance Corporation (in Case No. SX-2002-CV-00598) For Pinnacle Services, LLC (in Case No. SX-2002-CV-00641) For St. Croix Basic Services, Inc. and Basic Services, Inc. (in Case No. SX-2009-CV-00299) For Turner St. Croix Maintenance, Inc. (in Master Case No. SX-2015-CV-00100)
ALEX M. MOSKOWITZ, ESQ. Dudley Newman Feuerzeig LLP St. Thomas, VI 00802 For Pinnacle Services, LLC (in Case No. SX-2002-CV-00641)
STEPHANIE L. ADLER, ESQ. ALICIA M. CHIU, ESQ. Jackson Lewis, P.C. Orlando, FL. 32801 For Jacobs Industrial Maintenance Corporation (in Case No. SX-2002-CV-00598)
MEMORANDUM OPINION and ORDER
WILLOCKS, Administrative Judge.
¶1 THESE MATTERS are before the Court sua sponte following a review. In response to notices
filed by HONX, Inc. (hereinafter “HONX”) in hundreds of cases pending in the Complex Litigation
Division of the Superior Court of the Virgin Islands to which it was a de facto party,1 this Court stayed all
1 Hess Corporation merged its wholly owned subsidiary, Hess Oil Virgin Islands Corporation, with Hess Oil New York Corporation (hereinafter “HONYC”) in 2020. See McNamara v. Hess Corp., Civ. No. 2020-0060, 2022 U.S. Dist. LEXIS In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 5 of 28
proceedings against all parties pending further order of the Bankruptcy Court in any case against Hess Oil
Virgin Islands Corporation (hereinafter “HOVIC”), now known as HONX, its parent company, Hess
Corporation (hereinafter “Hess”), or HOVENSA, LLC (hereinafter “HOVENSA”). The Court directed
the parties to file a joint report every 120 days on the status of bankruptcy proceedings until it concluded,
relief from the automatic stay was granted, or the claims were resolved. To date, the HONX bankruptcy
is still pending, and these cases remain stayed. This is now the second bankruptcy stay these cases have
been under as HOVENSA also filed for bankruptcy in 2015. Litigation was stayed then, either by court
order or because the cases went dormant.
¶2 Upon review, it has come to the Court’s attention that imposing a stay on co-defendants of a debtor
may have been in error, at least in some instances, and particularly those cases in which HOVIC was not
named as a party. The Staff Master assigned to the Complex Litigation Division held a meeting with
counsel in each of these matters to inquire as to the status of the HONX bankruptcy and informally
reported to the Court, based on the discussions with counsel, that the May 31, 2022 Order may have been
unnecessary and motions to life the stay may be forthcoming. Cf. In re: Auth. for the Creation & App’t of
Staff Master for Complex Litig. Div. of the Super. Ct. of the V.I., Admin No. 2021-0012, 2021 WL
3562551, *2 (V.I. Aug. 12, 2021) (authorizing staff master to “[m]ake formal and informal
recommendations and reports to the judge regarding any matter pertinent to the proceedings[.]” (emphasis
223220, *22 (D.V.I. Dec. 12, 2022) (“Hess created a new wholly owned subsidiary, HONYC, as a New York corporation on May 18, 2020. HONYC conducted no business other than merging with HOVIC on May 19, 2020 . . . .” (citation omitted)). Hess then created HONX on May 18, 2020, and either merged HONYC with HONX or had HONX acquire HONYC. Although no motions were filed in any case to substitute HONX in place of HOVIC, just as motions were not filed to substitute HONYC for HOVIC, HONX is the successor to HONYC, which was the successor to HOVIC. While HOVIC, HONYC, and HONX are corporations and, legally, distinct persons, HONX is the de facto successor defendant in place of HOVIC. Cf. RHPC, Inc. v. Gardner, 533 So. 2d 312, 314 (Fla. Dist. Ct. App. 1988) (“Corporations are legal entities and should sue and be sued in their corporate name. In pleadings, the corporate name must be strictly used. However, persons who are sued by the wrong name may nevertheless appear and defend the action, and if they fail to object to the misnomer by appropriate pleading or motion they may be bound by a judgment resulting from the litigation. In addition, although not nominal parties, persons may become de facto parties defendant if they have control of the defense in furtherance of their own interest and enjoy all the rights of actual parties.” (citations omitted)). In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 6 of 28
added)). This Court elected to await further action by the parties. Yet, to date, no one has brought the error
to the Court’s attention by, for example, filing a motion to have the stay lifted, and the joint reports this
Court required give no indication when the HONX bankruptcy might end. More importantly, solvent co-
defendants are benefiting from a discretionary extension of the automatic stay, possibly in contravention
of federal law. For the reasons explained below, the Court issues this Opinion and Order to set a deadline
for the Plaintiffs to serve and file a motion in any case in which a discretionary stay was not warranted,
and to show cause in the other cases why the Court should not lift its own stay so the Plaintiffs can proceed
against the solvent Defendants.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶3 Three categories of cases are involved here. The first category includes the St. Rose, Cornwall,
and Castillo cases and are referred to as the Refinery Plant Closure Cases. The second category of cases
are grouped under the In re: Dispute Resolution Plan – Employer Retaliation Litigation (hereinafter
“DRP-ERL”). The first two categories of cases were brought by workers of the former oil refinery on St.
Croix, when it was owned and operated by HOVENSA. The third category of cases is grouped under the
In re: Refinery Hydrocarbon Release Litigation master case. The Refinery Hydrocarbon Release Plaintiffs
assert claims for personal injury and property damage from discharges of hydrocarbons and other
particulates over nearby residences from the oil refinery when it was owned by HOVENSA.
¶4 Regarding the first category, the Refinery Plant Closure Cases, the Plaintiffs in St. Rose, Cornwall,
and Castillo all allege that they lost their jobs at the refinery for pretextual reasons and assert, among other
claims, a claim under the Virgin Islands Plant Closing Act. They contend that, when their employers,
contractors of HOVENSA, lost their contracts with HOVENSA, it constituted a plant closure under Virgin
Islands law, entitling them to benefits. Cf. Cornwall v. V.I. Indus. Maint. Corp., 71 V.I. 203, 209-10
(Super. Ct. 2019) (listing counts including claim under Virgin Islands Plant Closing Act); Castillo v. St. In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 7 of 28
Croix Basic Servs., Inc., 72 V.I. 528, 541 (Super. Ct. 2020) (same); see also Stanley v. St. Croix Basic
Serv., Inc., 291 F. Supp. 2d 379 (D.V.I. 2003).2 St. Rose and Cornwall were filed in 2002, in the then-
Territorial Court of the Virgin Islands,3 as putative class actions. Twenty-two years later, whether they
continue as class actions still must be determined. Castillo was not filed in the Superior Court of the Virgin
Islands until 2009. But litigation began in 2003, when a class action was filed in the District Court of the
Virgin Islands. See generally Stanley v. St. Croix Basic Servs., Civ. No. 2003-0055, 2008 U.S. Dist. LEXIS
90024, *1-2 (D.V.I. Oct. 31, 2008). The Stanley Plaintiffs ultimately decided not to move to certify a
class, and the putative class members were denied leave to intervene. See id. at *3 (discussing efforts of
former class members to intervene via motion to amend). Castillo was filed in the Superior Court not long
thereafter. See Castillo, 72 V.I. at 541 (“Two-hundred and twenty-eight days after the District Court
denied the Stanley Plaintiffs' certification motion . . . 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.”).
¶5 The St. Rose Plaintiffs claim they were wrongfully terminated and denied seniority and benefits
when, following a merger between Virgin Islands Industrial Maintenance Corporation (hereinafter
“VIIMC”) and Jacobs Engineering, they accepted employment with Jacobs Industrial Maintenance
Corporation (hereinafter “JIMC”), and then were terminated by JIMC without credit for their time with
VIIMC. (See Am. Compl. ¶ 24, filed Jan. 1, 2003, Julien St. Rose, et al. v. V.I. Indus. Maint. Corp., et al.,
Case No. SX-2002-CV-00598 (“All Plaintiffs were denied the promised benefits, wages, and their full
severance pay for the entire time they were employed by IMC and JIMC and or other contractors and paid
2 Other cases raising similar allegations were filed later and settled. Cf. Baptiste v. St. Croix Basic Servs., Inc., No. SX-05-CV- 042, 2007 V.I. LEXIS 38 (V.I. Super. Ct. Apr. 24, 2007) (denying motion to certify class in case with Plant Closing Act claim). 3 The Virgin Islands Legislature renamed the Territorial Court as the Superior Court in 2004, when it established the Supreme Court of the Virgin Islands. In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 8 of 28
only for the time they worked for JIMC in violation of the law of the Virgin Islands.”).) The St. Rose
Plaintiffs named VIIMC, JIMC, HOVENSA, HOVIC, and Hess as defendants. This is the only case in
which HOVIC is a named defendant. Except for JIMC, who was dismissed for failure to timely serve, the
other Defendants remain parties to this case, including HOVENSA, HOVIC, and Hess. JIMC is also,
technically, still a party, but only as to a pending motion to certify its dismissal for interlocutory appeal.
Unlike in the other cases, HOVENSA did not file notice of its bankruptcy in 2015. However, the St. Rose
Plaintiffs filed notice on October 25, 2018, that the stay had been lifted, and litigation resumed until
HONX filed notice on May 26, 2022, of its bankruptcy. This Court stayed litigation against all Defendants
on May 31, 2022, which includes HOVENSA, Hess, and JIMC. No one objected. To date, the St. Rose
Plaintiffs have not filed a motion for class certification.
¶6 The Cornwall Plaintiffs contend that the pretext for their dismissal was, at least in part, to get them
to sign contracts and agree to arbitrate as a condition of employment. See Cornwall, 71 V.I. at 207 (“IMC,
HOVENSA, and Pinnacle allegedly conspired together to terminate the Plaintiffs from IMC and have
Pinnacle re-hire them but on a contractual basis and subject to an arbitration clause . . . .”). Accord Lloyd
v. HOVENSA, LLC, 369 F.3d 263, 266 (3d Cir. 2004) (“In January 2002, Wyatt began to hire between
300 and 400 people in the Virgin Islands. Also in January 2002, Wyatt began requiring all applicants to
sign a Dispute Resolution Agreement as a condition of having their applications considered.” (internal
abbreviation omitted)). The Cornwall Plaintiffs named VIIMC, Pinnacle Services, LLC (hereinafter
“Pinnacle’), and HOVENSA as defendants. HOVENSA filed notice of its bankruptcy proceeding on
September 29, 2015, and the Cornwall Plaintiffs filed notice on October 25, 2018, that the stay had been
lifted. Litigation resumed until stayed again by this Court on May 31, 2022, because of the HONX
bankruptcy. No one objected. Unlike St. Rose, the Cornwall Plaintiffs did file a motion for class
certification, but not until October 30, 2019. VIIMC, Pinnacle, and HOVENSA all remain parties to this In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 9 of 28
case, though certain claims were dismissed by the Court (Donohue, P.J.) in March 2006.
¶7 The Castillo Plaintiffs make similar claims like the Cornwall and St. Rose Plaintiffs. (See Compl.
¶ 100, filed June 16, 2009, Castillo, et al. v. St. Croix Basic Servs., Inc., Case No. SX-2009-CV-00299
(“Within the last 2-3 years, the Hess Defendants decided that in order to get the workers to have to sign
arbitration agreements waiving their rights to jury trials and to get rid of certain workers . . . they would
no longer transfer the workers but would require them to apply for new positions and sign employment
agreements.”); see also id. ¶ 101 (“The decision meant that the workers no longer transferred their
seniority or benefits and had to start anew with each new company.”).). Unlike St. Rose and Cornwall,
Castillo is not a class action. Instead, seventy-seven individuals joined together in the same complaint and
named St. Croix Basic Services, Inc., Basic Industries, Inc. (collectively “Basic Defendants”),
HOVENSA, and Hess as defendants. HOVENSA filed notice of its bankruptcy proceeding on September
17, 2015, and this Court granted a motion filed by the Basic Defendants to stay all proceedings against all
Defendants until notice was filed that the bankruptcy had been resolved, which the Castillo Plaintiffs filed
on October 25, 2018. Litigation resumed until this Court stayed it again on May 31, 2022, due to the
HONX bankruptcy. Again, no one objected.
¶8 The second category of cases, the DRP-ERL cases, were brought by now-former workers at the
refinery, specifically employees of HOVENSA. Forty-four cases were initially grouped under the DRP-
ERL master case, of which only thirty remain pending. However, before a master case was opened, there
were only two cases: one filed in 2005, the other in 2013. In 2005, forty-two refinery workers sued
HOVENSA and Hess, “claim[ing] that, starting in 2003, Hess and HOVENSA required them to sign a
dispute resolution agreement that mandated arbitration and waived their right to resolve any disputes
through a jury trial.” Grant v. HOVENSA, LLC, 70 V.I. 639, 641 (Super. Ct. 2019) (internal abbreviation
omitted). “The Grant Plaintiffs were considered exempt . . . .” Id. at 641-42. “HOVENSA had agreed, In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 10 of 28
through an Annual Compensation Plan Bonus Program, to give [the Grant Plaintiffs] annual bonuses, but
only if they ‘diligently worked for the good of HOVENSA and towards safety, environmental and net
overall profit goals.’” Id. at 642 (citation omitted). They refused to sign the agreement “and, consequently,
HOVENSA denied them their bonuses.” Id. Although initially forty-two employees filed suit, by July 28,
2008, “fifty-seven plaintiffs . . . [were] assert[ing] claims against Hess and HOVENSA for breach of
contract, extortion, intentional infliction of emotional distress, negligent infliction of emotional distress,
breach of the duty of good faith and fair dealing, and coercion.” Id.4 Discovery and motion practice
proceeded until “HOVENSA filed for bankruptcy, which automatically stayed the . . . claims against
HOVENSA, and effectively stayed their claims against Hess as well, as the case went dormant until
January 14, 2019, when the Grant plaintiffs and HOVENSA filed a joint notice of dismissal . . . .” Id. at
643. The Grant Plaintiffs and HOVENSA agreed to an evaluation process in the bankruptcy case, which
required that HOVENSA be dismissed as a defendant. See id. at 643-44. Hess is the only remaining
Defendant in the Grant cases.
¶9 The second case, Ince, was filed “[o]n January 14, 2013, [by] thirteen employees . . . against
HOVENSA and Hess.” Id. at 645. The Ince Plaintiffs claimed retaliation, wrongful discharge, and breach
of the duty of good faith and fair dealing, among other claims. Some also claimed discrimination on the
basis of sex or race. See generally id. An amended complaint, which dropped one Plaintiff, see id. at 645
n.9, was filed before Hess and HOVENSA appeared, reducing the total number of Plaintiffs to twelve. In
lieu of filing answers, Hess and HOVENSA jointly filed ten motions to dismiss for failure to state a claim
for relief, one motion to dismiss based on a release a plaintiff had signed, and one motion to stay and
4 Although motions to amend were the vehicles used, with six motions to amend filed between July 14, 2005 and July 29, 2008, see id. at 642 nn. 2-7, the relief sought was intervention as fifteen individuals intervened as plaintiffs in the case initially brought by the forty-two Grant Plaintiffs. In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 11 of 28
compel arbitration. Each motion was specific to a Plaintiff, and the motions challenging the sufficiency
of the complaint argued that ten Plaintiffs were already seeking the same relief in the Grant case. See id.
at 646-47. Before those motions could be ruled on, HOVENSA filed for bankruptcy, which stayed the
claims against HOVENSA and again “effectively stayed the[] claims against Hess as well because Ince
went dormant until October 25, 2018, when the plaintiffs filed a notice, stating that the District Court of
the Virgin Islands, Bankruptcy Division, had agreed to lift the stay so their claims could proceed against
HOVENSA.” Id. at 646-47. “In exchange, the Ince [P]laintiffs agreed to limit their recovery to any
amounts available under applicable insurance policies.” Id. at 647. Unlike in the Grant cases, HOVENSA
remains a co-defendant with Hess in the Ince cases.
¶10 Grant and Ince were designated complex in December 2018, and transferred to the Complex
Litigation Division upon its creation. After reviewing both cases and giving the parties leave to address
misjoinder, the Court (Molloy, J.) concluded that “the Grant and Ince plaintiffs have misjoined their
claims and the remedy is consolidation followed by severance.” Id. at 649. The claims of each Plaintiff
who was a party to both cases were consolidated, and all Plaintiffs were dropped, their claims severed,
and each Plaintiffs was ordered to file an individual complaint. See id. at 653. Grant and Ince, being the
first-named plaintiff in each case, were allowed to retain the initial case files but had to file amended
complaints that omitted their co-Plaintiffs. The Court opened the DRP-ERL master case, grouped the
individual cases together for pre-trial coordination, and ordered Hess and HOVENSA to file answers,
deferring a decision on the motions filed in Ince until trial. Cf. V.I. R. Civ. P. 12(a)(4)(A). The DRP-ERL
cases continued with discovery and motion practice until this Court stayed litigation on May 31, 2022,
due to the HONX bankruptcy. As before, no one objected.
¶11 The third category of cases are the Refinery Hydrocarbon Release cases. “Plaintiffs suffered
injuries to their persons and properties after several discharges of hydrocarbons were released from the In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 12 of 28
oil refinery on St. Croix.” Arno v. Hess Corp., 71 V.I. 463, 472 (Super. Ct. 2019). One discharge occurred
on September 19, 2010. See id.. A second discharge occurred on December 9, 2010. See id. “Further
‘noxious, foul smelling and toxic emissions’ were discharged from ‘about May 9, 2011 continuously
through mid June 2011.’” Id. at 472-73 (ellipses and citation omitted). Multiple lawsuits were filed as a
result of these discharges, including Arno, Sonny, and Rodriguez. “The Arno Plaintiffs filed suit first, on
August 13, 2012, naming HOVENSA, Hess . . .Wyatt V.I., Inc. (“Wyatt”) and Turner St. Croix
Maintenance, Inc. (“Turner”) as defendants.” Id. at 473. “Several days later, the Sonny Plaintiffs filed suit,
naming only HOVENSA and Hess as defendants.” Id. “A month later, on September 11, 2012, the
Rodriguez Plaintiffs filed suit and, like the Arno Plaintiffs, named HOVENSA, Hess, Wyatt, and Turner
as defendants.” Id. “The Arno and Rodriguez Plaintiffs also named XYZ Company, a fictitious corporate
defendant who has not yet been identified.” Id. “‘[A]ll of the Complaints share five counts in common:
negligence, public and private nuisance, negligent or intentional infliction of emotional distress, and
maintenance of an abnormally dangerous condition . . . .’” Id. (quoting Rodriguez v. HOVENSA, L.L.C.,
Civ. No. 2012-100, 2014 U.S. Dist. LEXIS 43967, *2 (D.V.I. Mar. 31, 2014)).
¶12 “Turner removed Rodriguez to the District Court on October 9th. Hess followed, removing Arno
on October 10, 2012, and Sonny on October 12, 2012.” Id. at 474. The District Court eventually remanded
all three cases. See generally Rodriguez, 2014 U.S. Dist. LEXIS 43967 at *21-22 (“[T]his Court finds no
basis for federal jurisdiction, and removal of these cases to this Court was therefore improper.
Accordingly, these matters will be remanded to the Superior Court of the Virgin Islands.”). On remand,
this Court, in its capacity as Administrative Judge, opened the Refinery Hydrocarbon Release master case In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 13 of 28
and reassigned Arno, Rodriguez, and Sonny to the Honorable Douglas A. Brady for further proceedings.5
Before litigation could resume in earnest, HOVENSA filed a notice in the master case on September 23,
2015, that it had filed for bankruptcy. On November 17, 2015, the Court (Brady, J.) stayed all proceedings
against all Defendants pending the conclusion of the HOVENSA bankruptcy. No one objected.
¶13 Approximately seventeen months later, when no further information had been received, the Court
directed the parties to report on the status of the HOVENSA bankruptcy. HOVENSA responded on May
12, 2017, stating that the bankruptcy remained pending and, therefore, the automatic stay remained as
well. Two months later, the Court issued a Memorandum Opinion and Order to Show Cause questioning
why it “should not lift the stay imposed on this case, dismiss the individual cases grouped under this
master case against HOVENSA without prejudice, and sever the claims against the other defendants who
are not subject to a bankruptcy stay so that this litigation can continue.” In re: Refinery Hydrocarbon
Release Litig., No. SX-15-CV-100, 2017 V.I. LEXIS 101, *1-2 (V.I. Super. Ct. July 10, 2017).6 Plaintiffs
responded and agreed the stay should be lifted so they could proceed against Hess, Turner, and Wyatt
without HOVENSA. Jay Borow, as Liquidating Trustee of the HOVENSA Liquidating Trust, also
responded, as a courtesy, and advised that it opposed dismissing HOVENSA without prejudice, preferring
it to be with prejudice, and further advised that the claims against HOVENSA’s co-Defendants should
remain stayed. Hess responded, asserting that Plaintiffs’ claims against it should be dismissed based on a
release HOVENSA gave Hess “in exchange for substantial contributions to its bankruptcy estate.” (Def.
Hess Corp.’s Mem. in Resp. to Pls.’ Order to Show Cause Mem. 1, filed Aug. 21, 2017, In re: Refinery
5 Presiding Judge Michael C. Dunston later ratified this Court’s reassignment orders following the decision of the Supreme Court of the Virgin Islands in Vanterpool v. Government of the Virgin Islands, 63 V.I. 563 (2015), which held that only the presiding judge has the authority to reassign cases among the judges. 6 At the time when the Court (Brady, J.) issued its Opinion, three additional cases were grouped under the master case. See In re: Refinery Hydrocarbon Release Litig., 2017 V.I. LEXIS 101 at *2-3 (discussing Almestica, Cruz, and Lucas). All three cases were later dismissed voluntarily. In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 14 of 28
Hydrocarbon Release Litig., Master Case No. SX-2015-CV-00100). “Alternatively, Plaintiffs’ claims
against Hess in the Arno, Rodriguez and Sony cases are so intertwined with HOVENSA’s bankruptcy that
they give rise to . . .‘related to’ jurisdiction . . . [and] should not be severed . . . .” Id. at 2. Wyatt did not
respond, but Turner did, and like Hess, agreed that “HOVENSA’s potential liability . . . is inextricably
linked with the potential liability of TSCM and Wyatt both legally and practically. Either of these linkages
will affect the HOVENSA bankruptcy estate. Therefore, the bankruptcy court retains jurisdiction over
Arno and Rodriguez cases, and the stay should not be lifted.” (Def. Turner St. Croix Maint., Inc.’s Reply
to Pls.’ Resp. to Ct.’s July 10, 2017 Order 4, filed Aug. 31, 2017, In re: Refinery Hydrocarbon Release
Litig., Master Case No. SX-2015-CV-00100.)
¶14 The Court (Brady, J.) did not act on the responses to the Opinion and Show Cause Order prior to
the cases being designated complex and transferred to the Complex Litigation Division in August 2018.
On January 14, 2019, Trustee Borow and the Arno, Rodriguez, and Sonny Plaintiffs filed a joint notice of
dismissal with prejudice as to HOVENSA. The Refinery Hydrocarbon Release Plaintiffs also asked that
the captions be amended to remove HOVENSA. The Court (Molloy, J.) granted those requests the next
day, and issued a separate order in the master case, directing Plaintiffs, Hess, Wyatt, and Turner to show
cause why Plaintiffs’ claims should not be severed and everyone except Arno, Sonny, and Rodriguez
dropped and ordered to file individual complaints. In addition to questioning joinder, the Court also
observed that, with HOVENSA dismissed, “Wyatt, Turner, and Hess remain parties to Arno and
Rodriguez, and Hess a party to Sonny, but without HOVENSA, a party they claimed was indispensable
and without whom they would face inconsistent or double obligations.” (Order 3, entered Jan. 15, 2019,
In re: Refinery Hydrocarbon Release Litig., Master Case No. SX-2015-CV-00100.) Hess and Turner
responded in support of severance. Plaintiffs and Wyatt did not respond. The Court (Molloy, J.) later
served the claims and dropped all Plaintiffs except Arno, Sonny, and Rodriguez. One hundred and sixty- In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 15 of 28
two individual cases were filed and added to the Refinery Hydrocarbon Litigation master case. Litigation
resumed following the dismissal of HOVENSA against Hess, Wyatt, and Turner as the remaining
Defendants in the Arno and Rodriguez cases, and against Hess as the only remaining Defendant in the
Sonny cases. In May 2022, this Court issued a stay of proceeding in light of the HONX bankruptcy. As
before, no one objected.
II. DISCUSSION
¶15 The Court begins its discussion with general principles that point toward specific conclusions.
First, “all Virgin Islands attorneys possess an obligation to monitor the docket in a pending case.”
Archibald v. People, 67 V.I. 851, 858 (2017). This obligation does not rest only with attorneys representing
plaintiffs. Plaintiffs, themselves, have a duty to ensure that their cases are moving forward. Cf. V.I. Taxi
Ass'n v. V.I. Port Auth., 67 V.I. 643, 692 (2017). By contrast, “a defendant possesses no affirmative duty
to take any steps to bring a case to trial . . . .” Watts v. Two Plus Two, Inc., 54 V.I. 286, 292 (2010). Instead,
“the plaintiff has the burden to proceed with the action. The defendant need only meet the plaintiff step
by step.” Lamar Advert. of S.D., Inc. v. Heavy Constructors, Inc., 790 N.W.2d 45, 50 (S.D. 2010) (citation
omitted); see also Smolker v. W.R. Grace & Co., Nos. B281406, et seq., 2020 WL 358552, *3 n.8 (Cal.
Ct. App. Jan. 22, 2020) (same); accord Watts, 54 V.I. at 292 (recognizing “duty to prosecute rests with
the plaintiff, not the defendant”).
¶16 Each case addressed in this Opinion has been pending, at a minimum, for over ten years, with the
oldest cases pending for more than twenty-two years. A significant portion of the delay in some of the
cases is attributable to bankruptcy stays and periods of inactivity after suggestions of bankruptcy were
filed. Each case was stayed for approximately three years due to HOVENSA’s bankruptcy, and now
another year and a half because of HONX’s bankruptcy. Plaintiffs have a duty to prosecute their cases and
that duty includes objecting to a stay that may have been imposed in error. Cf. Edwards v. Ghandour, 159 In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 16 of 28
P.3d 1086, 1091 (Nev. 2007), abrogated on other grounds by Five Star Cap. Corp. v. Ruby, 194 P.3d 709
(Nev. 2008) (plaintiff could not avoid dismissal under court rule by relying on court order) (“We conclude,
however, that the district court’s stay order, which was mistakenly entered after the bankruptcy stay was
lifted, and which was ultimately rescinded, did not toll the NRCP 41(e) period. Edwards, who was required
under NRCP 41(e) to diligently prosecute his case, knew that the bankruptcy stay had been lifted at the
time that the district court entered its stay, yet he did not move for a trial setting or to set aside the district
court's stay order. Since the district court's stay was based on misinformation, and Edwards did not take
appropriate action to move his case forward and set aside the stay, which was ultimately rescinded, the
five-year period was not tolled by the district court’s stay.”).
¶17 Second, even though the plaintiff is the only party who has a burden to move a case forward, judges
and attorneys alike have a duty to avoid errors. “An attorney is an officer of the court. As such, he owes
it a duty of frankness and honesty. His primary duty, of course, is to his client.” State v. White, 617 P.2d
998, 1001 (Wash. 1980), overruled in part on other grounds by State v. Walker, 513 P.3d 111, 116 (Wash.
2022). However, when “a trial court makes an error, it is the parties’ responsibility to ask the court to
correct the mistake. A trial judge cannot correct errors of which he is unaware.” People v. Johnston, 421
N.E.2d 412, 413-14 (Ill. Ct. App. 1981). See also In re: Seelig, 850 A.2d 477, 489 (N.J. 2004) (“[Rules of
Professional Responsibility] compel a lawyer to act affirmatively against his or her client’s interests even
when the primary responsibility for informing the court does not (or may not) lie with the lawyer. At their
core, the rules impose a duty to disclose in order to prevent errors in decision making by a tribunal that is
unaware of adverse legal authority or that has been misled because it lacks information about material
facts.”). “Even ‘well-intended judges err’. . . .” In re: Kelvin Manbodh Asbestos Litig. Series, 69 V.I. 394,
444 (Super. Ct. 2018) (quoting Antoine v. Hess Oil V.I. Corp., SX-05-CV-508, 2017 V.I. LEXIS 44, *13
(V.I. Super. Ct. Mar. 10, 2017)). More importantly, however, judges have “not only the right but the In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 17 of 28
duty . . . to refuse to intentionally commit error.” Henry v. Dennery, S. Ct. Civ. No. 2012-0130, 2013 V.I.
Supreme LEXIS 4, *6 (V.I. Jan. 11, 2013) (per curiam) (quoting Fontaine v. People, 56 V.I. 571, 590
n.12 (2012)); accord Commonwealth v. Olmande, 995 N.E.2d 797, 807 (Mass. Ct. App. 2013) (“The trial
judge has both the authority and the responsibility to take appropriate steps to prevent error and the danger
of an injustice before it occurs, even in the absence of an objection.”).
¶18 If the stays imposed in these cases because of the bankruptcies of HOVENSA and HONX were in
error, at least with respect to the solvent co-Defendants of HOVENSA or HONX, it was incumbent on all
parties, but especially the Plaintiffs, to bring the error to the Court’s attention. Cf. People v. Roberts, 70
V.I. 125, 141 (Super. Ct. 2019) (“Arguments and errors generally must be raised to the trial court in the
first instance so as to allow the trial court the opportunity to correct its own errors.”), aff’d, vacated in part
on other grounds, and remanded by 76 V.I. 555 (2022). That said, “a defendant cannot complain on appeal
of alleged errors invited or induced by himself, for if there was any error at all, it was invited error and
cannot now be a basis for reversal.” Latalladi v. People, 51 V.I. 137, 143-44 (2009) (per curiam) (internal
quotation marks and citations omitted). Some courts have held, for example, that a plaintiff’s delay in
filing a motion for class certification may warrant denying the motion. Cf. Adise v. Mather, 56 F.R.D. 492,
495 (D. Colo. 1972) (“Delay in bringing the class action question before the Court delays the pre-trial
proceedings and the ultimate disposition of the litigation. Such has been the result in the instant case. We
cannot and should not condone the delay. The motion was not timely filed and for this reason should be
denied.” (paragraph break omitted)). See also Home Sav. & Loan Ass'n v. Super. Ct. of L.A. Cnty, 117 Cal.
Rptr. 485, 487 (Ct. App. 1974) (“Prompt and early determination of the class is essential because until the
composition of the class has been determined defendants cannot tell what the action involves, and until
members of the class receive notice of the action they will not be bound by any judgment in the action.
Once the composition of the class has been determined, its members are entitled to appropriate notice of In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 18 of 28
the pendency of a class action that will affect their interests. Notice is particularly requisite when those
purporting to represent the class seek payment of substantial compensation from all members of the class
in the event of success. After the members of the class have been properly notified of the action, they are
required to decide whether to remain members of the class represented by plaintiffs' counsel and become
bound by a favorable or unfavorable judgment in the action, whether to intervene in the action through
counsel of their own choosing, or whether to ‘opt out’ of the action and pursue their own independent
remedies, such as negotiation with defendants, initiation of their own action, or intervention in some other
action.”).
¶19 Third, since the “[r]esponsibility for detecting and correcting error is shared by the court and
counsel[,]” Riddle v. McLouth Steel Prods. Corp., 485 N.W.2d 676, 689 (Mich. 1992) (Levin, J.,
dissenting), it follows that attorneys may not rest on the fact that they were following orders. Cf. Mitchell
v. Fiat-Allis, Inc., 632 N.E.2d 1010, 1013 (Ill. 1994) (“Attorneys are not excused from following the filing
requirements of Rule 303 merely because a judge has recommended a procedural route that lies beyond
the judge’s authority to travel.”). The trial court also must guard against “being ‘whip-sawed’ by assertions
of error no matter which way it rules.” Najawicz v. People, 58 V.I. 315, 337 (2013) (quoting United States
v. Elliot, 463 F.3d 858, 867 (9th Cir. 2006)). Hess and Turner argued in the Refinery Hydrocarbon
Litigation cases, for example, that the Plaintiffs should not be permitted to proceed without HOVENSA
because HOVENSA was an indispensable party and Hess, Turner, and Wyatt would be subject to double
or inconsistent liability without HOVENSA. Yet, Hess, Turner, and Wyatt allowed HOVENSA to be
dismissed without objection, and did not move to dismiss after HOVENSA was dismissed because an
allegedly indispensable party was no longer in the cases. Again, if extending the automatic stay to solvent
co-Defendants was in error, it was incumbent on all parties to bring that matter to the Court’s attention
and not to attempt to whipsaw the Court into ruling in their favor and then claiming error later. In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 19 of 28
¶20 Fourth, “once a bankruptcy petition is filed, it operates [as] an automatic stay on the
commencement or continuation of an action to recover a claim against the debtor . . . [and] remains in
effect until proceedings end or until relief from the stay is granted on motion.” In re: Cases Under Bankr.
Stay, 74 V.I. 330, 343 (Super. Ct. 2021) (quotation marks, citation, and ellipsis omitted). “As its name
suggests, an automatic stay is ‘automatic,’ requiring no affirmative act by the debtor other than the filing
of a petition.” In re: Heating Oil Partners, No. 3:08-CV-1976 (CSH), 2009 U.S. Dist. LEXIS 117871,
*29 (D. Conn. Dec. 17, 2009). “Although it is best practice, there is no requirement . . . [to] file a formal
suggestion of bankruptcy . . . in order for the automatic stay to take effect.” Tompkins Builders, Inc. v.
ABBA Bonding, Inc., Civ. No. 07-45 (EGS), 2009 U.S. Dist. LEXIS 150918, *5 n.3 (D.D.C. July 17, 2009)
(citing Anderson v. Harvey, 143 B.R. 1, 2 (Bankr. D.D.C. 1992)); see also Anderson, 143 B.R. at 2
(“Technically, no suggestion of bankruptcy was necessary for the automatic stay of 11 U.S.C. § 362(a) to
be effective.”). While some state courts have promulgated rules that “require that counsel serve and file a
notice when bankruptcy proceedings commence, as well as periodic status reports thereafter, punishing
failure to comply with sanctions[,]” In re: Cases Under Bankr. Stay, 74 V.I. at 340, the Virgin Islands is
not among them yet.
¶21 The Court is clear-eyed here that litigation against HOVIC is stayed. But HOVIC is only a
Defendant in one of these cases, St. Rose, and neither Hess nor HOVIC were named as defendants in
Cornwall. Since neither Hess nor HOVIC are parties to Cornwall, and since the HOVENSA bankruptcy
stay was lifted to allow Cornwall to proceed, the Court questions why litigation in Cornwall must remain
stayed, even though no one has brought this to the Court’s attention. But see In re: Carpenter, No. 10-
00572, 2010 Bankr. LEXIS 2083, at *5-6 (Bankr. D.D.C. June 29, 2010) (“The applicability of the
automatic stay presents a question of law that the creditor and debtor, not the state court judge, are the
logical entities to take procedural steps to address in the first instance.” (emphasis added)). Additionally, In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 20 of 28
since Hess is the only remaining Defendant in the Sonny cases, and in the Grant cases, except for those
Plaintiffs with claims in Grant and in Ince who consolidated them into one lawsuit, it is also unclear why
some (if not all) of the DRP-ERL cases should remain stayed against Hess.
¶22 Concerning the other Refinery Hydrocarbon Release cases, the Court takes judicial notice that
HOVENSA was “a joint venture formed in 1999 between . . . HOVIC . . . and Petróleos de Venezuela,
S.A. Virgin Islands,” Grant, 70 V.I. at 641, and that HOVENSA was dissolved in 2022, and, technically,
no longer exists. However, because of an order “the Bankruptcy Court issued . . . declaring that the
automatic stay provision could be violated by ‘any attempt to proceed against any entity that may have
liability arising out of the domination and control of the Debtor [HONX,]’” (Order 1, entered May 31,
2022, In re: Disp. Resolution Plan-Empl. Retaliation Litig., Master Case No. SX-2019-MC-00053
(citation omitted)), this Court issued its own orders staying litigation in all cases, including the Arno and
Rodriguez cases, as Hess is certainly alleged in most of the cases to have controlled HONX and, by
extension, HOVENSA. Thus, the HONX bankruptcy may have played a role if HOVENSA still existed,
since HOVIC was one of the two members of the joint venture. Allegedly HOVIC controlled HOVENSA
and Hess controlled HOVIC. But HOVENSA was dismissed from the Refinery Hydrocarbon Release
cases as well as Grant. Whether the HONX bankruptcy does stay these cases is unclear, particularly since
all of the cases have nothing to do with asbestos, and “HONX filed [its] chapter 11 petition ‘to address
and fairly resolve its alleged asbestos liabilities in an effective, efficient, and equitable forum pursuant to
section 524(g) of the Bankruptcy Code.’” In re: HONX, Inc., No. 22-90035, 2022 Bankr. LEXIS 3651,
*2 (Bankr. S.D. Tex. Dec. 28, 2022) (citation omitted). Again, none of these cases involve asbestos.
¶23 Fifth, every federal appellate and state and territorial supreme court that has addressed the issue
has held that the automatic stay imposed by Section 362(a) of Title 11 of the United States Code does not
extend to co-defendants. See Austin v. Unarco Indus., Inc., 705 F.2d 1, 4 (1st Cir. 1983); Teachers Ins. & In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 21 of 28
Annuity Asso v. Butler, 803 F.2d 61, 65 (2d Cir. 1986); Mar. Elec. Co. v. United Jersey Bank, 959 F.2d
1194, 1205 (3d Cir. 1991); Williford v. Armstrong World Indus., Inc., 715 F.2d 124, 126 (4th Cir. 1983);
Arnold v. Garlock, Inc., 278 F.3d 426, 436 (5th Cir. 2001) (quoting Wedgeworth v. Fibreboard Corp., 706
F.2d 541, 544 (5th Cir. 1983)); Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194, 1196 (6th Cir. 1983);
Pitts v. Unarco Indus., 698 F.2d 313, 314 (7th Cir. 1983); Croyden Assocs. v. Alleco, Inc., 969 F.2d 675,
677 (8th Cir. 1992); Ingersoll-Rand Fin. Corp. v. Miller Mining Co., 817 F.2d 1424, 1427 (9th Cir. 1987);
Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1330 (10th Cir. 1984); Seiko Epson Corp. v. Nu-
Kote Int'l, Inc., 190 F.3d 1360, 1364 (Fed. Cir. 1999). Accord Bradberry v. Carrier Corp., 86 So. 3d 973,
981 (Ala. 2011); Dwiggins v. Elk Horn Bank & Tr. Co., 219 S.W.3d 181, 186 (Ark. 2005); Chang v.
Buffington, 256 P.3d 694, 700 (Haw. 2011); Wyssbrod v. Wittjen, 798 So. 2d 352, 359 (Miss. 2001) (en
banc); Superpumper, Inc. v. Nerland Oil, Inc., 620 N.W.2d 159, 162 (N.D. 2000). Cf. Peerless Oil &
Chem., Inc. v. Hermanos Torres Pérez, Inc., 186 P.R. Dec. 239, 258-59 (2012). See also See also 3 Collier
on Bankruptcy ¶ 362.03 (16th ed. 2023) (“The stay of litigation does not protect nondebtor parties who
may be subjected to litigation for transactions or events involving the debtor.” (footnote omitted)). In fact,
the Supreme Court of the Virgin Islands has even acknowledged generally that “‘stays pursuant to § 362(a)
are limited to debtors’ and actions against non-bankrupt co-defendants may proceed[.]” Cianci v. Chaput,
64 V.I. 682, 692 (2016) (quoting Am. Prairie Const. Co. v. Hoich, 560 F.3d 780, 789 (8th Cir. 2009)).
¶24 Even assuming, arguendo, that the claims against Hess (and perhaps HOVENSA) may have to
remain stayed, it is not clear why the claims against Turner and Wyatt in the Arno and Rodriguez cases,
against Pinnacle in Cornwall, against JIMC and VIIMC in St. Rose, or the Basic Defendants in Castillo
must also remain stayed and “‘languish on the court’s docket until final disposition of the bankruptcy
proceeding.’” Caribbean Auto Mart of St. Croix v. Molloy, 73 V.I. 329, 332 (Super. Ct. 2020) (citation
omitted). The Court presumes, for purposes of this Opinion only, that the solvent co-Defendants that are In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 22 of 28
not part of the Hess “family” will argue—as Turner did in response to the Opinion and Order to Show
Cause in Refinery Hydrocarbon Release Litigation—that Hess is an indispensable party. Putting aside the
whipsaw concerns the Court voiced earlier, with this issue having been asserted and then effectively
abandoned after a debtor was dismissed, the Court notes that, while it may be unanswered under Virgin
Islands law, courts in other jurisdictions have held that the risk that solvent co-defendants may be held
jointly and severally liability without the debtor does not entitle them to the protections of the automatic
stay. See, e.g., Wedgeworth, 706 F.2d at 546 (“The intense desire of the co-defendants to suspend all
litigation until Johns-Manville and Unarco are again at their sides is understandable but is not sufficient
justification for all-encompassing stays. Because the reorganizing defendants, as joint tortfeasors, are not
indispensable parties under federal law, or Louisiana law, their absence from litigation may be unfortunate
to most or even all parties -- but is not fatal to the actions.” (citations omitted)). As the Supreme Court of
Appeals of West Virginia explained:
“In the usual case, litigation against solvent co-debtors and joint tortfeasors may proceed without the participation of the bankrupt debtor. This rule applies under either the automatic stay provisions of the Bankruptcy Code, 11 U.S.C. § 362, or the inherent discretionary power of a court to manage its docket. There are circumstances, however, in which a stay of pending proceedings as to co-defendants of a bankrupt debtor is appropriate. In cases involving defendants whose liability was contingent on the liability of a debtor in bankruptcy, or in cases involving a defendant indemnified by a debtor, courts have stayed proceedings against those nonbankrupt defendants on the grounds that continuing in the absence of the debtor would subject the defendants to potentially inconsistent judgments or would effectively extinguish the debtor's indemnification obligation. Jordache Enters., Inc. v. Nat'l Union Fire Ins. Co., 513 S.E.2d 692, 709 (W. Va. 1998) (paragraph break omitted) (quoting Terry v. Chauffeurs, Teamsters & Helpers, Local 391, 81 B.R. 394, 395 (M.D.N.C. 1987)).
Whether any of these cases raise “unusual circumstance[s]” can only be determined “'after balancing the
competing interests and after a ‘clear case of hardship or inequity has been shown.’” Terry, 81 B.R. at 396
(quoting Landis v. N. Am. Co., 299 U.S. 248, 255 (1936)) (citing A.H. Robins Co. v. Piccinin, 788 F.2d
994, 999, 1003 (4th Cir. 1986); accord In re: Carpenter, 2010 Bankr. LEXIS 2083 at *6 (“There are In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 23 of 28
exceptions to the automatic stay (contained in 11 U.S.C. § 362(b)), and as a disinterested adjudicator, a
state court judge ought not take a debtor’s assertion that the automatic stay applies as authoritative without
the debtor having given notice to the opposing party allowing that opposing party an opportunity to show
that the automatic stay does not apply.”).
¶25 Lastly, “the scope or applicability of the automatic stay under the Bankruptcy Code, 11 U.S.C. §
362, . . . is a question of law.” In re: Palmdale Hills Prop., LLC, 654 F.3d 868, 875 (9th Cir. 2011); see
also NLRB v. P*I*E Nationwide, Inc., 923 F.2d 506, 512 (7th Cir. 1991) (“The applicability of the
automatic stay provision is a question of law within the competence of the judiciary.” (citing NLRB v.
Edward Cooper Painting, Inc., 804 F.2d 934, 938-39 (6th Cir. 1986); In re: Baldwin-United Corp. Litig.,
765 F.2d 343, 347 (2d Cir. 1985)); Picard v. Fairfield Greenwich Ltd., 762 F.3d 199, 206 (2d Cir. 2014)
(“The scope of the automatic stay is a question of law subject to de novo review.”); In re: Carpenter, 2010
Bankr. LEXIS 2083 at *5-6 (“The applicability of the automatic stay presents a question of law . . . .”).
Accord P & S & Co. LLC v. SJ MAK, LLC, 254 So. 3d 535, 538 (Fla. Dist. Ct. App. 2018) (same). “[T]here
appears to be some split of authority among Federal courts over whether any court, other than the
Bankruptcy Court in which the bankruptcy proceeding is, or was, pending, has jurisdiction to determine
whether action taken or proposed to be taken in a case pending in another court is subject to the automatic
stay of § 362.” Klass v. Klass, 831 A.2d 1067, 1071 (Md. 2003). However, “[t]he clearly predominant
rule is that jurisdiction is concurrent, and that the court in which the non-bankruptcy case is pending may
determine the effect of the stay on that case.” Id. (collecting federal cases). The Court of Appeals of
Maryland concluded in Klass that its courts have “and, indeed, must have, jurisdiction to determine, at
least in the first instance, whether and how a matter properly pending before it is affected by a § 362 stay.”
Id.; accord Hill v. Springfield Hosp. & Emergency Servs. of New Eng., 297 A.3d 504, 510 (Vt. 2023). As
Klass explained, a state (or territorial) court “may not grant relief from the stay—that is a matter committed In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 24 of 28
exclusively to the Bankruptcy Court—but it may, when presented with the issue, determine whether,
factually or legally, a stay is in effect and whether a particular action it is about to take or has already
taken is subject to such a stay.” Klass, 831 A.2d at 1071. This Court agrees.
¶26 The Superior Court of the Virgin Islands has, and indeed must have, the authority to determine
whether the automatic stay applies to any non-bankrupt co-defendants. Here, the Court can decide for
itself whether the Plaintiffs’ claims against Hess, HOVENSA, Wyatt, Turner, Pinnacle, VIIMC, JIMC, or
the Basic Defendants should remain stayed or can proceed. But first, “the Court must give the parties an
opportunity to be heard before ruling on concerns raised sua sponte . . . .” In re: Refinery Hydrocarbon
Release Litig., 2017 V.I. LEXIS 101 at *12 (citing Hughley v. Gov't of the V.I., 61 V.I. 323, 334 n.6
(2014)). Many of the broad principles addressed may be settled nationally, but they are not settled locally.
They do, however, all point in the direction that discretionary stays may be in error here, particularly as
HOVIC is only a party to one of these cases.
¶27 The Court does acknowledge that there is little clarity on this question locally. Furthermore, and
to be candid, the Court also acknowledges that the custom locally has been, in effect, to allow cases to
“‘languish on the court’s docket until final disposition of the bankruptcy proceeding.’” Molloy, 73 V.I. at
332 (citation omitted); see also id. at 332-33 (“The concern for the Court at this juncture is that a now
eight-year old case will remain pending on the docket but stayed without an end in sight.”). “Considering
the number of cases pending in the Superior Court, and given the number of judicial officers, five Superior
Court judges and two Superior Court magistrate judges in each district,” Edwards v. Hess Oil V.I. Corp.,
69 V.I. 136, 142 n.4 (Super. Ct. 2017) (citations omitted), it is not surprising that judges and attorneys
may prefer to avoid parsing which claims can proceed without violating the automatic stay, and which
claims must remain stayed. See In re: Parker, 68 F.3d 1131, 1137 (9th Cir. 1995) (“Within a single case,
some actions may be stayed, others not. Multiple claim and multiple party litigation must be disaggregated In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 25 of 28
so that particular claims, counterclaims, cross claims and third-party claims are treated independently
when determining which of their respective proceedings are subject to the bankruptcy stay.” (quoting Mar.
Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1204-05 (3d Cir. 1991)).
¶28 However, courts must avoid committing errors and have a duty to correct errors brought to their
attention or uncovered sua sponte. Courts do have the discretion to impose a stay, of course. “A ‘stay’ is
the temporary postponement of all or part of a judgment or judicial proceeding by court order. Chicoine
v. Wellmark, Inc., 894 N.W.2d 454, 460 (Iowa 2017) (quoting Black's Law Dictionary (10th ed. 2014)
(footnote omitted). “The power to grant a stay ‘is incidental to the power inherent in every court to control
the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for
litigants.’” Id. (quoting Landis, 299 U.S. at 254) (other citation omitted). Yet, “the court’s broad discretion
in this area . . . not unbounded. Proper use of this authority ‘calls for the exercise of judgment, which must
weigh competing interests and maintains an even balance.’” Wedgeworth, 706 F.2d at 544-45 (quoting
Landis, 299 U.S. at 254-55). A temporary stay while plaintiffs seek relief from the bankruptcy court could
be appropriate. Cf. Lynch, 710 F.2d at 1199 (quoting In re Related Asbestos Cases, 23 B.R. 523, 532 (N.D.
Cal. 1982)). But a temporary stay also “could, indeed, become one of nearly ‘indefinite,’ or, at least,
unpredictable duration.” Id. (quoting In re Related Asbestos Cases, 23 B.R. at 532). This Court also
questions whether a plaintiff “should . . .be . . . denied a forum in which to pursue their claims against
those defendants who remain unshielded by the bankruptcy laws.’” Id. (quoting In re Related Asbestos
Cases, 23 B.R. at 532).
¶29 “Chapter 11, unlike Chapter 13, contains no provision to protect non-debtors who are jointly liable
on a debt with the debtor.” Butler, 803 F.2d at 65. Further, assuming that joint tortfeasors are not necessary
parties, staying proceedings here may have been in error. Cf. Morris v. Rowallan Alaska, Inc., 121 P.3d
159, 163 (Alaska 2005) (“[A] joint tortfeasor is ‘independently liable’ and lacks an identity of interest In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 26 of 28
with its co-defendant. The joint tortfeasor is therefore not protected by the bankruptcy filing of a co-
defendant.” (footnote omitted)); accord Hamel v. Am. Cont'l Corp., 713 P.2d 1152, 1154 (Wyo. 1986)
(“The automatic stay does not operate to prohibit action against a co-debtor nor affect the liability of a co-
debtor not in bankruptcy. Something more than filing a bankruptcy petition must be shown in order that
proceedings be stayed against nonbankrupt parties.”). This may be especially so since none of the
Defendants crossclaimed against each other.
III. CONCLUSION
¶30 In response to the suggestions of bankruptcy HONX filed, and to the order the Bankruptcy Court
presiding over HONX’s bankruptcy case issued, this Court, in its discretion, issued a stay in all cases
involving Hess, HOVENSA, or HOVIC out of concern that “the automatic stay provision could be
violated by ‘any attempt to proceed against any entity that may have liability arising out of the domination
and control of the Debtor [HONX].’” (Order 1-2, entered May 31, 2022, Diane Cornwall, et al. v. V.I.
Indus. Maint. Corp., et al., SX-2002-CV-00641 (quoting (Order 1 (Apr. 28, 2022), ECF No. 6, In re:
HONX, Inc., Case No 4-22-bk-90035 (Bankr. S.D. Tex.)) (emphasis added).) The Court ordered the parties
to submit periodic status reports regarding the process of the bankruptcy case. Those reports provide
nothing of substance. In fact, the Court takes judicial notice that the same content is filed in every case.
Only the caption and the signing parties differ.
¶31 Having reviewed these cases, and considering the age of many of them, and having reviewed the
law, the Court issues this Opinion to put the parties on notice of the Court’s concerns with what may have
been a discretionary stay imposed on non-bankrupt co-Defendants in error, and to direct the parties to
respond. The result, after hearing from the parties, may be that the cases remain stayed. If they do, there
will at least be a record for another court to review. However, given the amount of time that has passed,
and the likelihood that the HONX bankruptcy may continue for many years to come, this Court believes In re: Certain Cases Under a Discretionary Bankr. Stay. 2023 VI Super 74 Case Nos. SX-2002-CV-00598 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-2015-CV-00100 / SX-2019-MC-00053 Memorandum Opinion and Order Page 27 of 28
it is appropriate to raise this issue sua sponte.
¶32 Plaintiffs have a duty to prosecute their cases. Judges and attorneys have a duty to avoid errors. If
a court errs, it is incumbent on all parties, but especially the plaintiff, to bring the error to the court’s
attention if the error means the plaintiffs may be deprived of their day in court. Twenty-two years have
passed since Cornwall and St. Rose were filed, and nearly the same amount of time has passed since the
Stanley / Castillo litigation commenced. Memories will have faded, and evidence may be lost, before these
cases are brought to trial. The same can be said of the Grant and Ince cases, and possibly the Refinery
Hydrocarbon Release cases. Furthermore, plaintiffs who acquiesce in the mistaken delay of their cases
may not be able to complain later. Cf. Zimmerman v. Worley, 2009-Ohio-3819, ¶ 16 (Ct. App.) (“Despite
the trial court's own findings, it does not appear that the trial court was ever required by federal law to stay
proceedings, nor has Worley demonstrated that the trial court was without authority to lift its own stay of
the proceedings.”). To address these concerns, the Court will order the Plaintiffs to file a motion in any
case in which they believe a stay should not have been imposed and, in the other cases, to show cause why
the stay should not be lifted so litigation may resume, and if so, as to which Defendants.
Accordingly, it is hereby ORDERED that within twenty-one (21) days from the date of entry of
this Opinion and Order, the Plaintiffs, used generally to refer to the Plaintiffs in each of the matters listed
above, SHALL either SERVE and FILE a MOTION to lift the stay in any case in which the Plaintiffs
believe the May 31, 2022 Orders were in error, or SERVE and FILE a RESPONSE in any case in which
the stay may not have been in error and SHOW CAUSE in writing why the Court should not lift the stay
and allow litigation to resume, and against which Defendant(s), if more than one. It is further
ORDERED that the Defendants, used generally to refer to all Defendants in the matters listed
above, SHALL SERVE and FILE a RESPONSE to any motions the Plaintiffs file, or a REPLY to any
SHOW CAUSE RESPONSE the Plaintiffs file. It is further [n re: Certain Cases Under a Discrelionary Bankr. Slay. 2023 VI Super 74 Case Nos. SX-2002-CV-00S98 / SX-2002-CV-00641 / SX-2009-CV-00299 / SX-201S-CV-OOIOO / SX-2019-MC-00053 Memorandum Opinion and Order Page 28 of28
ORDERED that the Plaintiffs MAY SERVE and FILE a REPL Y in support of any motions they
file, but MAY NOT, without {eave of court obtained in advance on motion, file a FURTHER REPLY
to any replies filed by the Defendants to the Plainti ffs ' show cause responses. It is further
ORDERED that the Plaintiffs MAY, if they agree, JOINTLY FILE one motion or one response
simultaneously in each case addressed by this Opinion and Order in accordance with Standing Order No.
4, which encourages parties to join their arguments together and file fewer documents,provided, however,
that any Plaintiffs who join together will be held to the arguments they make. Defendants are likewise
encouraged to meet and confer and, if possible, jointly file their responses or replies for the same reasons.
The Court does acknowledge, however, that each Defendant's position may differ. It is further
ORDERED that the time to serve and file all replies to show cause responses and responses to
motions, and the time to serve and file replies in support of motions, remains twenty-eight (28) days as
provided by Standing Order No. 4.
DONE and so ORDERED this 22nd day of November, 2023 .
ATTEST: Tamara Charles
:~'k '~:f6. Dated: ~ /' IIle"" /"p>l.::1 I SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX
IN RE CERTAIN CASES UNDER A DISCRETIONARY BANKRUPTCY STAY
JULIAN ST ROSE, ET AL Case No SK 2002 CV 00598
PLAINTIFFS, Action for Damages
v Complex Litigation Division
VIRGIN ISLANDS INDUSTRIAL MAINTENANCE Jury Trial Demanded CORPORATION, ET AL ,
DEFENDANTS
DIANE CORNWALL, ET AL , Case No SX 2002 CV 00641
VIRGIN ISLANDS INDUSTRIAL MAINTENANCE Jury Trial Demanded CORPORATION; ET AL ,
JUAN CASTILLO, ET AL , Case No SX 2009 CV 00299
ST CROIX BASIC SERVICES, INC , ET AL , Jury Trial Demanded
IN RE REFINERY HYDROCARBON RELEASE Master Case No SX 2015 CV 00100 LITIGATION Complex Litigation Division In re Certain Cases Undera Discretionary Banlsr Stay Case Nos SX 2002 CV 00598 SX 2002 CV 0064] SX 2009 CV 00299 SX 2015 CV 00l00 SX 2019 MC 00053 Errata Order Page 2 of 2
IN RE DISPUTE RESOLUTION PLAN Master Case No SX 2019 MC 00053 EMPLOYER RETALIATION LITIGATION Complex Litigation Division
ERRATA ORDER
COMES NOW the Court, sua sponte, and issues this Order to correct the following scrivener’s
errors in the Memorandum Opinion entered December 4, 2023 (2023 VI Super 75) Accordingly, it is
hereby ORDERED that the following corrections shall be made
On page 5, in paragraph 2 delete life and replace it with lift ;
On page 7, in paragraph 4, delete “Twenty two and replace it with ‘ Twenty one”;
On page 10, in footnote 4, italicize “see id ”;
On page 12, in paragraph I 1, two lines from the top, delete the duplicate period afier See 1d ’,
On page 15, in paragraph 16, replace “twenty two with “twenty one ’; and
On page 27, in paragraph 32, replace ‘ Twenty two with ‘ Twenty one”
DONE and so ORDERED this‘ {a day of December 2023
MM HAROLD W L WILLOCKS ATTEST Administrative Judge of the Superior Court Tamara Charles Clerk of theJ, C rt z... A By . Court Clerk 84% Villa‘— Dated /&Z% I 343:1.