Rodney Stanley v. VI Bureau of Corrections and Wynnie Testamark

• Court: Superior Court of The Virgin Islands
• Decided: September 8, 2022
• Docket: ST-16-MC-75
• Status: Published

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS/ ST JOHN

Ronny STANLEY, g Case No ST 2016 MC 00075 E! PLAINTIFF, i Putative Class Action i

V 2 Complex Litigation Division

VIRGIN ISLANDS BLREAU 0F CORRECTIONS AM) WYNNIE TESTAMARK, E

DEFENDANTS %

Cite as 2022 VI Super 77

Appearances

JOSEPHA DIRUZZO III ESQ DiRuzzo & Company Ft Lauderdale FL 33301 For Plamtgfl

IAN S A CLEMENT ESQ Assistant Attorney General Virgin Islands Department of Justice St Thomas V100802 For Defendants

MEMORANDUM OPINION AND ORDER

WILLOCKS, Administrative Judge

3] BEFORE THE COURT is a motion filed by Defendants Virgin Islands Buteau of Correction

(hereinafter ‘BOC ) and Wynnie Testamark (collectively Defendants ) to reconsider an order of the

Staff Master that Inter aha, denied the Defendants’ motion to stay discovery and directed that discovery

proceed but only as to whether this case could continue as a class action Also before the Court is a

Recommendation of the Staff Master to either deny the Defendants motion for judgment on the pleadings

or convert it into a motion for summary judgment and grant the parties leave to file a reply and a Stank} v V I Buteau ofCon et a1 2022 V1 Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 2 of 28

surresponse to address questions of first impression under Virgin Islands law As the Defendants motion

and the StaffMaster 8 recommendation are interrelated, the Court addresses them together For the reasons

stated below, the Court will construe the Defendants’ motion to reconsider as an objection under Rule

53(t)(2) of the Virgin Islands Rules of Civil Procedure and overrule it and affirm the Staff Master 5 Order

The Court will also reject the Staff Master 5 1ecommendation to convert the Defendants motion for

judgment on the pleadings into a motion for summary judgment and instead adopt the recommendation

to deny the motion

I FACTUAL AND PROCEDURAL BACKGROUND

112 The factual and procedural history 01 this case was detailed at length in a prior Memorandum

Opinion 9ee generally 9tanley x V 1 Bureau of Corr 72 V I 657 660 63 (Super Ct 2020) Stanle)

pled guilty to voluntary manslaughter and carrying or using a dangerous weapon during the commission

of a crime of violence and was sentenced, in April 2012 to sene two consecutive terms His expected

release was thought to be 2028 Three years after he was sentenced the Virgin Islands Legislature

amended the Territory 3 good conduct laws to allow for a [eduction of an inmate s sentence upon

completion of academic or vocational courses S‘ee generally 5 V I C § 4571(b) Stanley took several

vocational courses before and after the law changed but did not receive credit for all the courses So on

September 27 2016, Stanley filed a document on his own behalf with the Superior Court of the Virgin

Islands titled Motion for Injunction Action for Reduce Credit Time He ask[ed] the Court to compel

BOC to recalculate his good time credit, and for habeas relief Stanley, 72 V I at 661 (citation omitted)

53 After a delay unrelated to the matters before the Court, BOC appeared and opposed Stanley’s

petition for failure to exhaust administrative remedies Stanley was allowed to reply but he simply

resubmitted the same papers showing what courses he took The Court (Francois, J ) appointed counsel

who moved for leave to amend Stanley 3 pro se pleading The proposed complaint sought relief on a class Stanle} v V] Bureau ofCorr er a1 2022 v1 Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 3 of 28

wide basis Stanley also simultaneously filed a motion for class certification The day before a status

conference, BOC awarded Stanley credit for some courses and then orally moved to dismiss, claiming the

case was moot because he received some of the relief sought S'ee genetally 1d at 661 62

114 The Presiding Judge of the Superior Court later designated this case as complex, transferred it to

the Complex Litigation Division, and reassigned it to the judge who was assigned at that time to sit in the

Complex Litigation Division The Court (Molloy, J) denied the Defendants’ motion to dismiss and

granted Stanley s motion to amend Stanley’s First Amended Class Action Complaint was deemed filed

on May 30 2018 See V I R Civ P 15 1(a)(2) At that juncture this case became aputative class action

The Defendants were directed to answer the complaint In a separate order, the Court denied Stanley 3

motion to certify a class without prejudice

‘35 Stanley filed a Renewed Motion for Class Certification on May 4 2020, which the Defendants

opposed That motion remains pending The Defendants also filed a Motion to Stay Discovery and for a

Protective Order on May 27 2020 asking that discovery be stayed pending a decision on class certification

and also because of COVID 19 restrictions that were in effect at the time Stanley opposed staying

discovery and counter proposed that discovery be bifurcated into class based discovery first, followed by

merits based discovery Stanley also filed a Motion for Leave to Conduct Class Discovery on June 11

2020, which the Defendants opposed

£6 Following the conclusion of the prior judge’s term this Court in its now former administrative

capacity as Presiding Judge of the Superior Court, reassigned all Complex Litigation Division cases

between itself and the Honorable Alphonso G Andrews Jr This case was among the cases the Court

assigned to itself as part of the division of caseloads The Court scheduled an initial status conference for Stanley v P I Buleau ofCou e! a] 2022 VI Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 4 of 28

July 19, 2021, heard briefly from the parties on whether the case meets the requirements of a class action ‘

and then adjourned the case to September 7, 2021 for oral argument In the interim Stanley was paroled

from prison based on a mistake in how the judgment and commitment was prepared See generally Stanley

v Gov t ofthe 1/ I 2021 VI 2U, '1l 6 ( Based on their retiew of the transcript, appellees point[ed] out

the trial judge s statement that Stanley’s sentence would run concur; em not consecutive It is well

established that, when a written sentence conflicts with an oral sentence, the offending provision should

be vacated with instructions for the trial court to conform the written judgment to the oral sentence, unless

the oral sentence is itself illegal ’ Since the oral sentence was not illegal, Stanley was eligible for parole

after seven and one half years (citations and footnote omitted» As a result of his release, the

Defendants on August 30, 2021 filed a Motion for Judgment on the Pleadings, claiming again that this

case was moot Stanley opposed that motion

137 The Coutt would have heard argument on the Defendants motion for judgment on the pleadings

at the September 7, 2021 hearing, but counsel for the Defendants failed to appear So, the Court issued a

show cause order and continued the hearing to December 9, 2021 The December 9, 2021 hearing also did

not go forward because both counsels had a conflict with oral argument scheduled before a panel of the

United States Court of Appeals for the Third Circuit on the same day As the Court had appointed a staff

master for the Complex Litigation Division by then the Staff Master granted both motions, continued oral

argument to January 7, 2021, and directed counsel to appear remotely before the Staff Master to argue all

pending motions

1B The Staff Master heard argument on the Defendants motion to stay discovery and Plaintiff‘s

We Court disclosed on the record that Stanley is the undersigned judge s nephew by marriage and thus pursuant to Title 4 Section 284(2) of the Virgin Islands Code the undersigned judge would be disqualified Counsel for the parties did not objection to the Court continuing on the case Considering that Stanley is proceeding on behalf of a putative class and, as discussed further below, may not remain class representative for much longer, the Court sees no need to remove itself from the case particularly as neither side objected Cf. 4 V I C § 286 Stanley v VI Bu; eau ofCorI et a1 2022 V1 Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 5 of 28

motlon for leave to conduct class discovery At the close of the hearing the Staff Master denied the

Defendants motion as to class based discovery and denied it without prejudice as to merits based

discover) and granted Plaintiff‘s motion for leave to conduct class discovery The effect of both rulings

was to permlt discovery to go forward but only as to class based discover} In an order entered

immediately after hearing, the Staff Master directed the parties to exchange Rule 26(a)(1) disclosures (if

not already exchanged) and set a date for Plaintiff to submit a proposed order to govern class based

discovery The proposed order was to be limited only to identifying persons

(1) who were remanded into the care, custody and control of the Virgin Islands Bureau of Corrections pursuant to a judgment or other official decree issued by a court of record in the Virgin Islands on or after July 30 2015 and (2) who were ehgible as of July 30 2015 to obtain a reduction in their term of incarceration pursuant to [T]it1e 5, [S]eetion 4571(b) of the Virgin Islands Code and (3) who at any time between July 30 2015 and the date of entry of th[e] order, submitted a request for a sentence reduction pursuant to [F]itle 5 [S]ection 4571(1)) of the Virgin Islands Code (Order 2 entered Jan 12 2022 )

The Staff Master’s Order further directed that class based discovery be completed within six months

Lastly, the Staff Master deterred recommending a ruling on the Defendants’ motion for judgment on the

pleadings until a status conference that was scheduled for April 1, 2022

19 Two weeks later the Defendants, on January 26 2022 filed a Motion to the Presiding Judge to

Reconsider Staff Master 5 January 12 2022 Order, which Plaintiff opposed 2 While briefing on that

motion was underway Plaintiff submitted hIS proposed order for class based discovery on January 18

2022 as corrected on January 21 2022 which the Defendants objected to on January 28 2022 The Staff

Master held a hearing on March 4, 2022 to resolve the parties disagreements over the proposed order and

sustained two of the Defendants five objections The Staff Master then directed Plaintiff to incorporate

the Defendants objections into a revised proposed order During the March 4 2022 hearing, the parties

’ At the time the Defendants’ filed their motion to reconsider this Court was serving as Presiding Judge of the Superior Court Stanley» VI Buleau ofCon eta] 2022 v1 Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 6 of 28

addressed with the Staff Master the Defendants’ motion to reconsider and with respect to the Defendants

motlon for judgment on the pleadings the Staff Master noted that summary judgment might be the better

vehlcle to raise Stanley 5 release as it had occurred after the pleadings had closed The Staff Master offered

to cancel the April I 2022 hearing and issue a recommendation on the motion papers that would 1nclude

recommending that this Court convert the Defendants motion for judgment on the pleadings to a motion

for summary judgment

1110 The Staff Master reduced the March 4 2022 rulings to writing in an order issued the same day but

not entered until March 7, 2022 In furtherance of the discussion about the Defendants motion for

judgment on the pleadings the Staff Master gave the Defendants a deadline to [file] a notice advising

whether they will stand on the January 26 2022 motion to reconsider or will withdraw the motion,

contmgent upon the Judge issuing an order converting the motion for judgment on the pleadings to a

motion for summary judgment per Rule 12(d) of the Virgin Islands Rules of Civil Procedure (Order 2,

entered Mar 7, 2022) ) The Defendants complied and filed a notice on March 7 2022 regarding their

reconsideration motion stating that they stood by it, notwithstanding that the Court might convert their

motion for judgment on the pleadings into a summary judgment motion Two days later, on March 9,

2022, the StaffMaster issued a recommendation that proposed two options denial of the judgment on the

pleadings motion because Stanley’s release was outside the pleadingsu-or conversion to summary

judgment with leave to address questions of first impression regarding the impact of Stanley’s release on

a putative class action Neither side responded On March 11 2022, the Staff Master issued an order to

govern class based discovery, providing Inter aha, that discovery must conclude by August 26 2022

II DISCUSSION

fill Per Administrative Order No 2021 0012, the Supreme Court of the Virgin Islands authorized the

creation of a staffmaster position for the Complex Litigation Division See generally In re Authorzzatzon Stanleyv VI Bureau ofCor; er a1 2022 v1 Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 7 of 28

for the Creation & Appomtment QfStafl'MasterfOI the Complex thlg Dzv offhe Supei Ci of the V I ,

Admin Order No 2021 0012 2021 VI Supreme LEXIS 14 (VI Aug 12 2021) In all complex cases

and unless the judge assigned to the case orders otherwise, the staff master has the duty and responsibility

to, Inter aha, [e]stablish manage, and supervise discovery plans and other related schedules and issue

orders resolving discovery disputes and make recommendations to the judge regarding on going

discovery[,]’ to [m]ake or recommend findings of facts and conclusions of law on dispositive motions,

to [c]oncluct legal analysis of parties’ motions or other submissions and make recommended findings of

facts and conclusions of law or other reports[ ] and to [m]ake formal and informal recommendations

and reports to the judge regarding any matter pertinent to the proceedings[ ] Id at *3 4 The stafi~ master

also must ‘ file all orders recommendations and reports promptly with the clerk’s office Id at *4 The

Staff Master 3 January 12 2022 Order complied with these duties by resolving the parties discovery

disputes and establishing a discovery plan for this case The Defendants do not contend that the Staff

Master exceeded his authority They simply disagree with the Staff Master 3 rulings Administrative Order

No 2021 0012 is silent as to what procedure, if any, governs review of the staff master’s orders, reports,

and recommendations Thus, the Couit must consider what legal standard governs the Defendants

reconsideration motion

1"; 12 Having reviewed the parties motion papers, the Court agrees with Plaintiff that reconsideration is

not the correct standard when reviewing an order of the staff master As Plaintiff points out, [t]he legal

basis for a motion for reconsideration is extremely limited ’ (P1 3 Opp n to Mot to Reconsid 2, filed Feb

7, 2022 ) Plaintiff is also correct that,

in this jurisdiction ‘a motion for reconsideration is not a second bite of the apple, but is intended to focus the parties on the original [motion] as the main event, and to prevent parties from filing a second motion with the hindsight of the court’s analysis covering issues that should have been raised in the first set of motions Id at 2 3 (brackets and emphasis omitted) (quoting In re Infant Sherman 49 V I 452 457 (2008)) Stanley v V] BureauofCorI et a1 2022 v1 Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 8 of 28 Plaintiff asserts that this Court should not give the Defendants a second chance as they had their

opportunity to timely raise their arguments before the Staff Master but failed to do so A second bite at

the apple is exactly what the Defendants want 1d at 3 But Plaintiff‘s own authorities actually

highlight why reconsideration is not proper and further why a second bite is permitted here

£13 [M]asters are quasi judicial [officers] Kehoe 1 Kehoe 83 Pa D & C 229 230 (C P 1952)

Rodrzguezv TaxAdJustment Experts Inc 551 So 2d 537 537 (Fla Dist Ct App 1989)( [A]s aspecial

master, the petitioner is a quasi judicial officer ) In federal courts [t]he powers of special masters,

who are quasi judicial officers are set forth generally in Federal Rule of Civil Procedure 53 ”’ Laube t

Campbell 333 F Supp 2d 1234 1240 (M D Ala 2004) (quoting Benjamin 1 Fraser 343 F 3d 35 45

(2d Cir 2003)) Like federal courts Virgin Islands courts also have the authority to appoint special

masters See V I R Cix P 53 The staff master position is somewhat different in that the Supreme Court

of the Virgin Islands created the position for the Complex Litigation Division in furtherance of its general

superintendent powers over the Judiciary See In re Authorization for the Creation & Appomtmeni of

81¢sz Master 2021 V I Supreme LEXIS 14 at *2 ( [P]ursuant to the inherent authority of this Court as

well as the express authority provided in Section 21(e) 0f the Revised Organic Act and title 4, chapter 2

of the Virgin Islands Code the position of staff master is HEREBY ESTABLISHED within the Complex

Litigation Division of the Superior Court of the Virgin Islands (emphasis added», acc01d In re P L

2001 Ch 362 895 A 2d 1128 1136 (N J 2006) (reaffirming supreme court 5 authority not only to set

the terms and conditions ofemploy ment ofjudiciary personnei but also to determine their functions within

the court system ’ )

1114 However, even though the staff master differs from special masters being a division wide

position akin to standing masters in the federal system cf. Plumb 1 91am 809 F 2d 734 742 (Utah 1990)

( Federal rule 53 originally allowed a majority ofjudges within an) district to appoint ‘standing masters’ Stanley v V 1 Bureau OfCOH‘ et a1 2022 V1 Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 9 of 28

within their district ”), but compensated by the Judicial Branch not the parties cf Chrzsty & Tewe: P A

v Wztte, 495 A 2d 1291, 1292 93 (1985) (per cm 1am) ( We know from our own judicial experience that

the great majority of cases committed to masters in the superior court are heard before regular masters

who are compensated by the State at no extra expense to the parties ) the limitations on the staff master

are the same as those on special masters But cf e g Beals t Beals, 88 300 P 3d 1158 (Mont 2013)

(distinguishing statutory authority of special masters and standing masters)

1115 Administrative Order No 2021 0012 directs that the creation of the staff master position cannot

be ‘ construed to alter or restrict the authority of the judge(s) assigned to the complex cases to revise or

vacate any order or ruling of a master In re Authorizanon for the Creation & Appomtmenl of S‘taff

Master 2021 V I Supreme LEXIS 14 at *5 Thus judges assigned to the Complex Litigation Division

retain the discretion to act, at any time on an order or a ruling of the staff master by revising or vacating

that decision Consequently if the judge retains the authority to revise or vacate an order or ruling of the

staff master, then the procedure to invoke this authority cannot be reconsideration As Plaintiff points out

the Defendants cannot satisfy any of the grounds for reconsideration here because there has not been an

intervening change in controlling 1aw[,] for example or the need to correct clear error 0f1aw[ ] V I

R Civ P 6 4(b)(1), (3) What 3 more it is generally understood that reconsideration is reserved for the

same judicial or quasi judicial officer who issued the decision being challenged Accord Above the Belt

Inc v Mel Bohannan Roofing Inc 99 F R D 99 101 (E D Va 1983) ( Reconsideration, as generally

used is a recons1deration by the same court by which the original determination was made ); .11 Case

Co v McDonald 280 P 2d 1070, 1073 (Idaho 1955) ( Rehearing or reconsideration’ as used here

properly refers to a reconsideration by the same court by which the original determination was made ”),

see also Decker v Smith 225 F 776 777 (N D N Y 1915) ( The object of filing objections with the

master to his drafi or proposed report is to give him an opportunity to correct his report, reconsider any Stanley» l 1 Bmeau ofCorI er a1 2022 v1 Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 10 of 28 point objected to, and decide differently if he on reconsideration deems himself in error But these

exceptions to the proposed or draft report are not a substitute for the exceptions required to be filed to the

report as finally made and do not take their place ) The Defendants have not asked the Staff Master to

reconsider the January 12, 2022 Order Cf Yu 314f t Teleplan Wireless Servs , 726 N W 2d 525, 531

(Minn Ct App 2007) ( But rather than providing that a party may seek de now review from a higher

level decision maker, a party now must request reconsideration from the same ULJ [0r unemployment

law judge] who conducted the initial evidentiary hearing ) They are asking that the Judge to review the

Staff Master 3 order Despite titling their motion as one for reconsideration, what the Defendants seek

here is not reconsideration because reconsideration is not the legal standard a judge applies when

reviewing a master’s order

fi 16 Instead what the Defendants seek here is relief under Rule 53(1) of the Virgin Islands Rules of

Civil Procedure, something they reference in both their Motion and their Reply That is although the

Defendants titled their motion as seeking reconsideration, they actually are objecting to the Stafi Master’s

Order and objection to a master 3 order is a means of obtaining review by a judge See V I R Civ P

53(f)(2) (‘ A party may file objections to or a motion to adopt or modify the master 3 order, report, or

recommendations no later than 21 days afier a copy is served, unless the court sets a different time )

Administrative Order 2021 0012 does not state that the staff master’s orders reports, and recommendation

are reviewable under Rule 53(f), however, and neithel side addressed this issue Instead, the Defendants

moved for reconsideration but cited Rule 53(f) in support and Plaintiff opposed, claiming Rule 6 4 does

not apply while ignoring the Defendants references to Rule 53(f) Thus, the Court must first consider

whether Rule 53(f) of the Virgin Islands Rules of Civil Procedure should apply when a judge considers a

challenge to a ruling of the staff master

1117 The Virgin Islands Rules of Civil Procedure were patterned largely, but not entirely, afier the Stanley v V I Bureau ofCorr er a1 2022 VI Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page II of 28

Federal Rules of Civil Procedure Like the federal rule Rule 53 of the Virgin Islands Rules of Civil

Procedure omits all references to special’ and refers only to masters The Virgin Islands Supreme Court

was aware of Rule 53 when the Court created the staff master position ‘When procedure is not prescribed

by these Virgin Islands Rules of Civil Procedure, precedent from the Supreme Court of the Virgin Islands,

or the Virgin Islands Code a judge may regulate practice in any manner consistent with law of the Virgin

Islands ” V I R Civ P 1 3(a) Administrative Order No 2021 0012 clearly reserves to the judge assigned

to a complex case the discretion to reexamine a decision or ruling of the staff master at any time during

the life of a case A procedure to exercise that discretion must have been implied Otherwise, if the judge

could vacate or revise the staff master 3 decisions and rulings at random, if would have the effect of

undermining the determination of the Virgin Islands Supreme Court that the public interest as well as the

interests of justice are best served by the appointment of a full time staff master who shall serve as an

employee of the Judicial Branch of the Virgin Islands assigned to the Complex Litigation Division[ } In

19 Authorization for the Creatzon & Appomtmem 0f ?lqflMaster, 2021 V I Supreme LEXIS 14 at *1 2

Thus, absent another procedure, this Court believes Rule 53(f) should govern review of the rulings and

decisions of the staff master Accordingly, this Court holds that objections to or motions to modify or

adopt, an order, report or recommendation of the staff master are governed by Rule 53(1) of the Virgin

Islands Rules of Civil Procedure Thus, the Court will construe the Defendants’ Motion to the Presiding

Judge to Reconsider the Staff Master’s January 12 2022 Order as an Objection under Rule 53(t)(2) to the

Staff Master’s order

1E1 8 ‘A party may file objections to or a motion to adopt or modify the [staff] master’s order, report,

or recommendations no later than 21 days after a copy is served unless the court sets a different time ’

V I R Civ P 53(t)(2) The Staff Master issued the order in question on January 12 2022 As the Court

d1d not set a different time, objections to or motions to adopt or modify were due on or before February Stanleyv V1 BureauofCon et a1 2022 v1 Super 77 Case No ST 20l6 MC 00075 MEMORANDUM OPINION AND ORDER Page l2 of 28

2 2022 See 1d The Defendants filed their Motion to the Presiding Judge to Reconsider the Staff Master 5

January 12, 2022 Order on January 26 2022 fourteen days after the order issued That motion construed

as an objectlon under Rule 53(t) was timely filed and IS properly before the Court

1H 9 The court must decide ale nova all objections to findings of fact made or recommended by a [staff]

master unless the parties, with the court 5 approval [provide otherwise] ’ VI R Civ P 53(f)(3), of In

re Authorizatzon for the Creation & Appomtment ofStaff Waste}, 2021 V I Supreme LEXIS 14 at *4

(authorizing additional duties stipulated to in writing by the parties and approved by the judge presiding

over the case[ j”) Plaintiffand the Defendants did not ask the Court to approve a different review standard

Thus, to the extent the Defendants object to any factual findings of the Staff Master, the Court reviews

those findings de novo Objections to the Staff Master 3 legal conclusions are also reviewed de novo 9ee

VI R Civ P 53(f)(4) (‘ The court must decide de now all objections to conclusions of law made or

recommended by a master ’) However, the Staff Master 5 ruling on a procedural matter [is reviewed]

only for an abuse of discretion ’ V I R Civ P 53(f)(5) (emphasis added)

$20 The phrase procedural matter ’ is not defined in Rule 53 and the Advisory Committee 5 Notes do

not provide any guidance Rule 53 of the Virgin Islands Rules of Civil Procedure is modeled after Rule

53 of the Federal Rules of Civil Procedure and, therefore the body of case law construing th[e federal]

rule may properly be considered in construing [the local rule] Slack v Slack 69 V I 567 573 (2018)

Some federal courts have drawn a distinction between a master’s ruling on a purely procedural matter and

a procedural matter that is based on a legal question Cf Callwave Communs LLC v AT&TMobzlzty LLC ,

Civ Action No 12 1701 RGA 2016 U S Dist LEXIS 78278 *6 (D De] June 16 2016) ( What is the

line between a procedural matter and a non procedural matter? A schedule would be a procedural matter

Failure to file something before the Special Master according to the schedule set would be a procedural

matter On the other hand, resolution of attorney client privilege issues is not a procedural matter In my Stanleyv H Bweau ofCorr er a1 2022 v1 Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 13 of28

opinion, a ruling on the exclusion of evidence at trial seems like something more than a procedural

matter, as it involves findings of fact and, ultimately, a conclusion of law ” (footnotes and citations

omitted)) However, most federal courts agree that [a] deciSIOn regarding the scope of discovery is a

procedural matter reviewed for abuse of discretion In re Hardzeplank Fzber Cement 91dmg thzg No

12 1nd 2359 2014U S Dist LEXIS 10205 *2 (D Minn Jan 28 2014) accordArcomc Corp t Novelzs

Inc No 17 1434 2021 U S Dist LEXIS 187883 *6 (W D Pa Sep 30 2021) ( The maj01ity of courts

regard a special master 5 determination about the scope of discovery as a procedural matter subject to

abuse ofdiscretion’ review ) Ravm Crossbows LLC v Hunter s Mfg Co , No 5 18 CV 1729 2020 U S

Dist LEXIS 243599 at *5 6 (N D Ohio Dec 29 2020) ( Under Fed R Civ P 53(t)(5) where a party

objects to a Special Master 5 ruling on a procedural matter, such as the scope of discovery the Court

reviews the ruling only for abuse of discretion This is similar to the scope of review of a district court 3

discovery orders by the circuit court ’) Nippon glee] & 91mutomo Metal Co; p v POS‘C O Civ11 Action

N0 12 2429 (SRC) 2014 U S Dist LEXIS 42444 *2 (D NJ Mar 26 2014)( The rulings on discovery

matters contained in the Order of August 22 2013 are procedural matters, and they will be reviewed under

an abuse of discretion standard )

121 Here, the Staff Master’s order denied the Defendants’ motion to stay discovery granted Plaintiff‘s

motion for leave to conduct class discovery set a deadline for Plaintiff to file a proposed order, and

scheduled a date for the parties to argue the Defendants judgment on the pleadings motlon The

Defendants do not object to the last two directives Instead, they focus on the Staff Master’s decision to

not stay discovery until issues raised by their judgment on the pleadings motion had been resolved Thus,

even though the StaffMaster’s order concerns discovery it also concerns more than this procedural matter

The Staff Master was aware of why the Defendants opposed going forward with discovery The decision

to defer considering the judgment on the pleadings motion permitted Plaintiffs counsel some time to Stanley t V 1 Bureau ofCon e! a] 2022 VI Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page I4 of 28

determine, through discovery, whether another inmate could substltute in place of Stanley That said, the

Staff Master’s January 12 2022 order did not start discovery (other than Rule 26(a)(1) initial disclosures)

The patties did not have to begin discovery until March I 1, 2022, after the Staff Master issued the order

entered March 7, 2022, which set a deadline to complete class based discovery The Defendants did not

file an objection to that order Hence it could be argued that they waived any objection by not challenging

the actual order that required them to engage in discovery Plaintiff d1d not argue waiver, however 3 So

the Court declines to consider, on its own without the benefit of briefing the effect of the Defendants

having failed to object to the order that set discovery deadlines since that order was 0n1y issued after the

Staff Master had already decided that discovery would not be stayed

$22 Furthermore, during a subsequent hearing before the Staff Master on March 4, 2022 to address the

Defendants’ objections to Plaintiff‘s proposed discovery order the parties discussed the Defendants’

motion to reconsider the Staff Master 3 order The Staff Master noted that because Stanley 5 release had

occurred after the pleadings had closed judgment on the pleadings may not be appropriate (Order 2

entered Mar 7, 2022 ) The parties also discussed whether summary judgment would be the better

mechanism by which the Defendants’ could raise their mootness argument ” 1d Based on their

discussions the Staff Master offered to recommend to the Judge that he com ert the motion for judgment

on the pleadings to a motion for summary judgment The parties agreed ’ Id Two days after the order was

entered, the Staff Master on March 9, 2022, submitted his Recommendation, that the Court either convert

3 Plaintiff did argue that the Defendants waived their objections by not raising them to the Staff Master in the first instance It is a generally accepted that a reviewing court will not consider an issue raised for the first time on review and this principle has been extended to the decisions of masters See e g Cobell v Jen ell Civil Action No 96 01285 (TFH) 20l6 U S Dist LEXIS 194915 *26 (D D C Oct 11 2016) (collecting cases)( The Court declines to consider arguments raised for the first time in objections to or ‘appeals” from the Special Master‘s reports and recommendations, rather than before the Claims Administrator or the Special Master ) Here however it is not clear what argument Plaintiff believes the Defendants waived by not raising it before the Staff Master first as Stanley 5 release and the effect it had on the case were squarely raised Furthermore, Plaintiff‘s argument was made in a perfunctory manner without sufficient development Thus, it is rejected Stanley v V I Bureau ofCarr er al 2022 VI Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 15 of 28

the Defendants motion for judgment on the pleadings to a motion for summary judgment and grant the

parties leave to address what the soundest rule for the Virgin Islands should be with respect to headless

class actions, or to deny the motion for judgment on the pleadings Based on this background it seems

clear that the Staff Master 3 order was not limited solely to procedural matters In other words, this is not

an instance where one side objected to the number of interrogatories or the length of depositions In fact,

the Defendants objections to the Staff Master 3 order track the same arguments advanced in their motion

for judgment on the pleadings the effect of Stanley’s release from incarceration However insofar as the

Defendants object to the Staff Master 3 decision to deny their motion to stay Discovery and grant

Plaintiffs motion for leave to conduct class discovery that objection must be overruled for several

reasons

1123 First the Supreme Court of the Virgin Islands promulgated Rule 26(d)(4) of the Virgin Islands

Rules of Civil Procedure, which provides that [t]he filing of any motion including potentially

dispositive motions such as a motion to dismiss or for summary judgment shall not stay discovery in the

action unless the judge so orders ’ So far as the record shows, none of the judges who presided over this

case stayed discovery Even though the Defendants moved on May 27 2020, to stay discovery the filing

of that motion did not on its own, stay discovery Thus, the Defendants have had an obligation arguably

since Rule 26(d)(4) took effect, to engage in discovery Filing a motion to stay, like filing a dispositive

motion did not shield them from their discovery obligations Rule 26(d)(4) clearly provides that the filing

any motion, including dispositive motions, does not stay discovery The Staff Master acted in furtherance

of this authority by denying the Defendants motion and ordering them to engage in class based discovery

$24 Second even though the Staff Master denied the Defendants motion to stay discovery, the Staff

Master limited discovery only to whether this case could proceed as a class The effect of that decision

effectively granted the Defendants the relief they sought, a stay, because discovery on the merits was not Stanley v V I Bureau ofCorr e! a] 2022 V1 Super 77 Case No ST 20l6 MC 00075 MEMORANDUM OPINION AND ORDER Page 16 of 28

permitted Instead, discovery was allowed to go forward but only to determine whether this case could

proceed as a class action If it could not, then the Court would have to set a deadline for the putative class

members to either intervene or file their own cases

fi25 This IS the third reason why the Defendants’ objections must be overruled Once the Court

(Molloy, J ) granted Stanley 3 motion to amend and allowed him to bring allegations on a class wide basis

this action became a putative class action A putative class action is a representative action in which a

representative plaintiff attempts to represent the interests of not only named plaintiffs, but also those of

unnamed class members Casey t Merck & (.0 722 S E 2d 842 846 (Va 2012) (citing Am Pzpe &

Constr Co v Utah 414 U S 538 550 (1974)) Although it is an unsettled question of law in the Virgin

Islands, see Castillo v 8‘! Crozx Baszc gems Inc 72 VI 528, 534 (Super Ct 2020) courts in other

jurisdictions have held 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 S‘taub t Eastman Kodak Co 726 A 2d

955 967 (N J 1999) 9ee also Camila 72 V I at 550 53 & nn 10 14 (collecting cases applying the same

or similar rule) As the court in Castzllo explained 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 ’

Id at 567 (quoting Sawyer v Atlas Heatmg& Sheet Metal Works Inc 642 F 3d 560 563 (7th Cir 201 1))

But once tolling ends, one of two things must occur the former class members must move to intervene

or file their own lawsuits ’ Id at 568 (citing Crown Cork & Seal Co Inc v Parker, 462 U S 345, 354

(1983)) Assuming for purposes of this Memorandum Opinion only that Castillo states the soundest rule

for the Virgin Islands, it follows then that, even if the Court were to agree with the Defendants and grant

their motion for judgment on the pleadings, the Court would still have to stay its decision and allow Stanley v V! Bureau ofCon er a1 2022 V1 Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page l7 of28 Plaintiff‘s counsel time to notify the former class members since the class attorney 3 duty does not run

just to the plaintiffs named in the caption 0f the case; it runs to all of the members of the class ” Abednego

v St Crorx Alumina LLC 63 VI 153 179 (Super Ct 2015) (quoting In re Agent Orange Prod Lzab

Ling 800 F 2d 14 18 (3d Cir 1986))

1126 Having reviewed the Defendants motion to stay discovery de novo the Court concludes, like the

Staff Master, that it should have been denied While the reasons the Defendants offered in support of

staying discovery, namely the restrictions imposed by the COVID 19 pandemic would have been

compelling when they filed their motion on May 27, 2020 particularly since discovery might have posed

a health risk to the prison population in BOC, those concerns had abated by the time the Staff Master

issued the order on January 12, 2012, and were further ameliorated by several administrative orders of the

Virgin Islands Supreme Court authorizing remote appearance at depositions 9ee generally In re

Tramztzon t0 Resumption 0fCertam Judtczal Branch ()peratzons Admin Order No 2020 0010 2020 V I

Supreme LEXIS 14 *11 13 (V I May 28, 2020) (modifying and suspending various court rules to permit

remote appearance during discovery conferences and requiring remote attendance at deposnions) Further,

Rule 26(d)(4) expressly rejects a stay of discovery solely because a motion has been filed Thus, neither

the motion to stay discovery nor the motions to dismiss or for judgment on the pleadings, on their own

relieved the Defendants of the duty to participate in discoy ery even though an order setting the scope of

discovery had not been issued yet Cf V I R Civ P 26(1)

1127 Further, and assuming that the Court 3 review here is only for abuse of discretion the Court cannot

find that the Staff Master abused his discretion by allowing discover} to proceed solely on a limited basis

as to whether this case could proceed as a class action ‘ An abuse of discretion occurs if the decision rests

upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to

fact Nzcholas v People 56 V I 718 729 (2012) (quoting Stevens v People 55 V I 550 556 (2011)) Stanleyv V1 Bureau ofCon e! a] 2022 v1 Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 18 of 28

The Defendants raised unsettled questions of Virgin Islands law and several courts have found no abuse

of discretion if the law is unsettled Cf Mum)?» Xamox Corp 797 F 2d 271 279 (6th Cir 1986) ( Given

the uncertainty in the state law we find no abuse of discretion in the trial court 3 refusal to exercise pendent

jurisdiction over plaintiff’s claim ’), Gann v Williams Bros Realty, 283 Cal Rptr 128 132 (Ct App

1991) ( A court does not abuse its discretion where any reasonable factors supporting denial of relief can

be found even if a reviewing court as a question of first impression, might take a different view ”) Regina

v Aetna Cas & Sur Co 490 A 2d 362 365 (N J Super Ct App Div 1985) ( We find no abuse of

discretion where as here the facts and law were unsettled ) This Court agrees since legal conclusions

cannot be errant when the law is unsettled

1128 Lastly, the Court notes that the Staff Master in his March 9, 2022 Recommendation, gave the

Defendants the vehicle they sought to get resolution of the novel legal issues raised here, namely whether

the Virgin Islands should allow ‘ headless ’ class actions to proceed According to the Defendants, even

though the Virgin Islands Supreme Court has not ruled on whether ‘headless’ class actions will be

permitted in the Virgin Islands [C]ourts in other jurisdictions have denied precertification discovery

to headless class actions ’ (Defs Mot to P J to Reconsid Staff Master 3 Jan 12 2022 Order &

Incorporated Mem of Law 3, filed Jan 26 2022 )Consequently Stanley 3 release rendered this case moot

because, regardless of the amount of good time credit he might have been entitled to if he were to prevail,

no court cannot grant him relief and order his release Plaintiff disagrees noting first that this is a

prospective class action He also notes that the Supreme Court of the United States ‘ has held that the

termination of a class representative s claim does not moot the claims of the unnamed members of the

class ”’ (Pl’s Opp n to Mot to Recon31d 3 (quoting Ct} olevers'zde v McLaughlm, 500 U S 44, 51 52

(1991)) ) He further notes that the United States Court of Appeals for the Third Circuit for example has

held that ‘ special mootness rules have evolved over time to allow a plaintiff to continue seeking class Stanley v V I Bu) eau ofCOIr e! a] 2022 VI Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 19 01°28

certification in certain Circumstances even though his individual claim for relief has become moot ” Id

(quoting chhardson v Bledsoe 892 F 3d 273 279 (3d Cir 2016)) He also objects to actions taken by a

defendant that ‘moot” the claims of the prospective class representative and thus the entire class ‘[W]hen

a plaintiff’s individual claim for relief is acutely susceptible to mootness by the actions of a defendant,

that plaintiff may continue to represent the class he is seeking to certify even if his individual claim has

been mooted by actions of the defendant Id at 3 4 (quoting chhardson 829 F 3d at 279) Plaintiff asks

to be allowed to continue to serve as the class representative and [argues] b) necessary extension, [that]

this is NOT a ‘headless class action as the Defendants suggest Id at 4 The Defendants in reply, note

that they did nothing to ‘ moot ’ this case; instead it was the Supreme Court of the Virgin Islands who,

according to them, mooted this case by ordering Stanley released The Defendants also distinguish the

authority Plaintiffrelies on since a class has not been certified in this case yet whereas a class was certified

in the cases Plaintiff relies on

{£29 As noted, neither side responded to the Staff Master 5 Recommendation and this raises a different

question regarding the standard of review In acting on a master’s order report or recommendations, the

court must give the parties notice and an opportunity to be heard; may receive evidence, and may adopt

or affirm, modify, wholly or partly reject or reverse, or resubmit to the master with instructions ” V I R

Civ P 53(t)(1) If an objection is raised or a motion to modify or adopt is filed then, as noted above the

Staff Master’s findings of fact and conclusions of law are reviewed de now, while procedural matters are

reviewed only for an abuse of discretion Several federal courts have pointed out that ‘Rule 53 does not

specify the scope of review required as to findings of fact and conclusions of law made by a master that

are not the subject of objections by a party Seggos 1 Datre No 17 CV 2684 (SJF)(ARL) 2019 U S

Dist LEXIS 130623 *13 (E D N Y Aug 5 2019) This Court 8 research shows that most federal courts

to consider the same question concluded that clear error is the applicable legal standard for reviewing an Stanleyv VI Bureau ofCorr e! a] 2022 v1 Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 20 of 23 order or recommendation of a master no one objected to See generally 1d at *14 ( Courts reviewing

Special Master Reports have also determined, without discussion but with citation to authority involving

review of a Magistrate Judge 3 report that those portions of a Special Master 8 Report to which no

objections have been made are reviewed for clear error ’ ) accord In re Ch: Brzdge & Iron C0 N V Sec

ng No 17 Civ 1580 (LGS) 2020 U S Dist LEXIS 49786 *4 (SDN Y Mar 23 2020)( Courts in

this Circuit use a clear error standard to review a master 3 findings of fact and conclusions of law where

no objection is raised which is the same standard applied to a Magistrate Judge’s report and

recommendation in this context ),1’\/elson \ Umted 9rates Civ Action No 1 11 cv 02953 DDD CBS

2020 U S Dist LEXIS 264614 at *2 3 (D Colo May 27 2020) ( The Court finds that this same logic

applies to review of a Special Master’s report when no timely objections have been made In this case, the

Court has reviewed Special Master Barr 3 report and recommendations to satisfy itself that there is no

clear error on the face of the record ’ (footnote omitted», 9trauch v Comput 0cm Co;p , No 3 14 CV

956 (JBA) 2019 U S Dist LEXIS 225463 *6 (D Conn Aug 6 2019)( Asapreliminary manner the

Court notes that the majority of the Special Master 5 thorough and well reasoned Report and

Recommendation was not objected to by either party The Court has reviewed the non objected

portions of the R & R for clear error, and having found none adopts those portions ”); CA Inc 1

Smple com Inc 780 F Supp 2d 196 206 n 1 (E D N Y 2009) ( Some portions of the R&R have not

been objected to or argued against by the parties As to those unless expressly stated otherwise the Court 3

review has been for clear error and, having found none, those portions are adopted ’); Andrews v U S

Pzpe & Foundry Co Inc No 2 06 CV 1645 RDP 2009 WL 10703074 at *2 (ND Ala Aug 5 2009)

(‘ Plaintiffs argue that U S Pipe failed to timely object to the factual findings of the Special Master under

Rule 53(t)(2) Thus, Rule 53(t)(3) is inapplicable However, this court is still obligated to ensure that no

portion of the Special Master’s report is clearly erroneous (footnote and citation omitted» But cf Stanley v V I Bureau ofCor) et a1 2022 VI Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 2| of 28

Grandalskz 1 Quest Diagnostics Civ Action No 04 4362 (SRC) 2013 U S Dlst LEXIS 142461 *2

(D N J Oct 2 2013) ( [T]he parties haying represented that they do not intend to challenge the Report

and Recommendation, and the Court having reviewed the Report and Recommendation de now pursuant

to Federal Rule of Civil Procedure 53(f)(3) & (4) ) This Court agrees with the federal courts that

have considered the same question and holds that orders and recommendations of the staff master that are

not objected should be reviewed only for clear error

$30 This does not mean that the Court is powerless to act if no one objects to an order of the staff

master Contra In re Authorizatzon for the Creation & Appomtmerzt 0f 9tqffMaster, 2021 V 1 Supreme

LEXIS 14 at *5 (providing that judges retain the discretion to revise or vacate staff master 8 orders 01

rulings) In fact, even if no one objects to a recommendation of the staff master the Court still has the

obligation to act on the recommendation Cf Lou ery v C try ofAlbuquerque, N0 CW 09 0457 JB/WDS,

2014 U S Dist LEXIS 179290 at *127 28 n 15 (D N M Dec 17 2014)( While aparty cannot properly

object to a Special Master 3 findings after 21 days of receiving the report see Fed R Civ P 53(f)(2),

rule 53 does not say that a court may not modify a portion of a Special Master 5 report to which there is

no objection ”) The staff master 3 recommendation is just that a recommendation, and the underlying

matter whether it be a dispositive motion, a matter the staff master cannot decide, or some other issue

will remain unresolved until the Court acts on it But the reason why the judge reviews only for clear error

is clear judicial economy

1131 In Thomas v Am 470 U S 140 (1985) the Supreme Court of the United States considered whether

a decision announced by the United States Court of Appeals for the Sixth Circuit in Untied States t

Walters 638 F 2d 947 (6th Cir 1981), and applied prospectively to all future cases, was a proper exercise

ofthat court 3 rulemaking authority See generally 470 U S at 144 45 The Sixth Circuit ruled that litigants

would waive the right to appeal if they failed to file an objection to a magistrate s ruling or Stanley v V I Bweau ofCorr er a1 2022 V1 Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 22 of 28

recommendation by a certain deadline See 1d at 144 Although the appellant in Thomas sought and

received additional time to object she ultimately failed to file objections See id Even though no

objections were filed, the judge still conducted a de novo review and reached the same conclusion as the

magistrate and dismissed the case On appeal the Sixth Circuit concluded that Thomas had waived the

right to appeal to that court by not filing an objection with the trial court See 1d The Supreme Court

affirmed See 1d at 145

SE32 Although the decision in Thomas concerns the limits on federal courts and the statutory authority

of magistrates and is, therefore readily distinguishable from the instant matter, the Court 3 reasoning is

still persuasive The Court reasoned that

[t]he filing of objections to a magistrate’s report enables the district judge to focus attention on those issues factual and legal that are at the heart of the parties dispute The Sixth Circuit 3 rule, by precluding appellate review of any issue not contained in objections prevents a litigant from sandbagging the district judge by failing to object and then appealing Absent such a rule, any issue before the magistrate would be a proper subject for appellate review This would either force the court of appeals to consider claims that were never reviewed by the district court, or force the district court to review every issue in every case, no matter how thorough the magistrate 3 analysis and even if both parties were satisfied with the magistrate 5 report Either result would be an inefficient use of judicial resources Id at 147 48 (footnote omitted)

Of course the Court is not concerned here with the effect of the Defendants failure to object to the Staff

Master’s Recommendation on the appellate jurisdiction of the Supreme Court of the Virgin Islands That

in essence was the underlying issue in Thomas But the High Court 5 observations about the effect of

failing to object to a decision of a judicial adjunct, and the corresponding impact on judicial resources, is

what this Court finds compelling here The decision of the Supreme Court of the Virgin Islands to create

the staff master position would be severely undermined if Superior Court judges had to review every

ruling of the staff master in every case no matter how thorough the staff master 5 analysis and even if all

parties were satisfied With the outcome This concern, with the efficient use ofjudicial resources is what Stanley v V I Bu} eau ofCozr er a! 2022 VI Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 23 of 28

underscores this Court’s conclusion that, absent an objection or a motion to modify, recommendations of

the staff master will be reviewed only for clear error Accord Seggos 2019 U S Dist LEXIS 130623 at

*13 (citing Thomas 474 U S at 149)

1133 Here, the Staff Master recommended two alternate, courses of action on the Defendants motion

for judgment on the pleadings deny it or convert it The Staff Master observed that a motion for judgment

on the pleadings is ‘ limited to the four corners of the pleadings (Recommendation 5, filed Mar 9, 2022

(citing Reynolds v Rohn 70 V I 887 896 (2019)) The Defendants base their motion solely on Stanley 3

release, but Stanley 3 release occurred after the pleadings had closed Thus the Staff Master reasoned that

the Court would have to look outside the pleadings to grant the relief the Defendants requested, something

no court can do on a motion for judgment on the pleadings S‘ee Reynolds, 70 VI at 896 ( Like the

Superior Court we may not consider evidence from any source outside of the pleadings and the exhibits

attached to the pleadings in determining whether it was proper to grant a motion for judgment on the

pleadings ’” (brackets and citation omitted» For this reason, the Staff Master recommended that the Court

deny the motion Plaintiff failed to move the Court to adopt this recommendation however, and the

Defendants did not object

1134 In the alternative glven the split of authorities on whether courts allow headless class actions to

continue the Staff Master recommended that the Court convert the Defendants motion for judgment on

the pleadings into a motion for summary judgment per Rule 12(d) of the Virgin Islands Rules of Civil

Procedure and give the parties leave to address what the soundest rule for the Virgin Islands should be if,

before a class has been certified, the putative class representative 3 claims have become moot The

Defendants failed to move the Court to adopt the Staff Master 3 alternative recommendation and Plaintiff

did not object

1135 ConSIdering that neither side responded to the Staff Master 5 Recommendation, the Court is not Stanley v V 1 Bureau ofCort et a! 2022 V1 Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Pa e 24 of 28

inclined to adopt the alternate recommendation to convert the Defendants motion for judgment on the

pleadings to a motion for summary judgment 4 The Staff Master found that Stanley was released from

BOC’s custody on September 23 2021 That finding is not clearly erroneous It was based on the order

that was issued in Stanley’s habeas corpus case following remand The Staff Master concluded that

Stanley’s release was a fact outside the pleadings That conclusion is not also clearly erroneous because

Plaintiff‘s First Amended Class Action Complaint was deemed filed on May 30 2018 cf V I R Civ P

15 1(a)(2) and the Defendants filed their Answer on April 27 2020 Re} nolds clearly states that facts

outside the pleadings cannot be considered on a Rule 12 motion Thus the overall recommendation that

the relief the Defendants sought judgment on the pleadings, could not be granted is not clearly

erroneous The Staff Master was correct the Court could only deny the motion or convert it to summary

judgment

T36 The Staff Master did recommend in the alternative converting the Defendants Rule 12(c) motion

4 The Defendants may contend that they did in effect move the Court to adopt the Staff Master 5 alternate recommendation when they filed their Notice to the Court Regarding Motion to Presiding Judge to Reconsider Staff Master 3 Order on March 7 2022 In that Notice the Defendants represented that [o]n March 4 2022 the Staff Master conducted a status conference during which it was decided that the Defendants Motion for Judgment on the Pleadings would be converted to a Motion for Summary Judgment and the judge would issue a briefing schedule (Defs Notice to Ct re Mot to P3 to Reconsid Staff Master 5 Order I filed Mar 7 2022 ) 1f correct the Staff Master 3 representation would have been clearly erroneous as the Staff Master does not have the authority to dictate what course of action the judge will take The Staff Master can only recommend a course of action Neither side requested a transcript of the March 4 2022 hearing and the Staff Master 5 Order entered March 7 2022 immediately afier the hearing contradicts the Defendants representation (See Order 2 entered Mar 7 2022 ( Based on the discussion the undersigned offered to recommend to the Judge that he convert the motion forjudgment on the pleadings to a motion for summary judgment The parties agreed Further because convening the judgment on the pleadings motion into a motion for summary judgment might have the effect of mooting the Defendants motion to reconsider the Defendants agreed to notify the court whether they would stand on the motion or withdraw it ) ) Although the Court does appreciate the point the Defendants made in their Notice the Staff Master 5 Orderwearlier in the same paragraph—explained that the Staff Master offered to cancel the [Apri1 l 2022} hearing if the parties instead wanted the {Staff Master] to consider the motion on the papers Id at 1 Clearly the Staff Master was trying to keep the proceedings moving by ordering that discovery proceed and once an objection was raised by discussing with the parties different ways in which their concerns could be addressed The Defendants responded to the Staff Master 5 option by filing their Notice stating that they stood by their Motion to Reconsider The Defendants also filed that Notice two days before the Staff Master submitted his Recommendation which differed slight from the March 7 2022 Order (and the Defendants March 7 2022 representation in their Notice) since the Recommendation included two options Notwithstanding what may have transpired earlier it was the formal filing of the Recommendation on March 9 2022 that triggered the parties time to respond The Defendants Notice filed two days earlier cannot reasonably be seen as a response under Rule 530) Stanleyv VI ButeauofCorr et a1 2022 v1 Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 25 of 28

to a Rule 56 motion for summary judgment and granting the parties leave to address a legal question

whether so called ‘headless class action cases can proceed i e whether the purported class representative

can continue to represent the prospective class when before certification is granted, the plaintiff‘s

individual claim has become moot or lessened substantially (Recommendation 6, see also 1d at 7 ( Some

courts have referred to ‘precertlfication mooting as a headless lawsuit with in effect n0 plaintiff and as a

potential lawsuit searching for a sponsor ’ Larry James ()ldsmoblle Pontiac GMC Truck Co v GMC,

175 F R D 234 236 (N D MISS 1997) (quoting Satteru lute 1 CW QfGreemzlle 557 F 2d 414 425 (5th

Cir 1977) (Gee J , dissenting» (brackets omitted») As the Staff Master noted [t]his question is

unsettled in Virgin Isiands law Id

{337 After reviewing the Staff Master’s Recommendation, the Court is declines to adopt the alternate

recommendation and convert the Defendants’ motion for judgment on the pleadings into a motion for

summary judgment Conversion under Rule 12(d) is discretionary 9ee VI R Civ P 12(d) ( If, on a

motion under Rule 12(b)(6) or 12(0), matters outside the pleadings are presented to and not excluded by

the COLIN, the motion must be treated as one for summary judgment unde1 Rule 56 ’ (emphasis added»,

see also Untied Corporation v Hamed 64 V I 297 306 07 (2016) Additionally a point neither the Staff

Master nor the parties considered is that even if the Court were to conclude that the soundest rule for the

Virgin Islands is to reject headless class actions the Court cou1d not enter summary judgment in favor

of the Defendants without first giving Plaintiff‘s counsei a deadline to aiert the putative class members

and setting a deadline for them to intervene or to file separate actions Thus converting the Defendants’

Rule 12(c) motion into a Rule 56 motion would not end the litigation

£38 The Court 5 decision should not be viewed as sanctioning what the Defendants contend is

Plaintiff’s counsel fore[ing] the BOC to assist him in a fishing expedition to obtain a substitute

representative client (Defs Reconsid Mot 3 (citing Reed v Brown, 849 F 2d 1307 1314 (10th Cir Stanley v V I Bureau ofCorr et a! 2022 VI Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 26 of 28

1988)) ) The legal questions presented by the posture of this case, and by class actions as a whole, remain

unresolved in the Virgin Islands Cf Castillo, 72 V I at 534 ( ‘[T]he question one of first impression, is

whether the Virgin Islands should recognize class action tolling ) However if the Defendants wanted

these questions resolved they should have moved the Court to adopt the Staff Master 3 recommendation

to convert their Rule 12(c) motion into a Rule 56 motion This case was filed in 2016 No discovery has

occurred yet except the limited discover the Staff Master ordered on whether this case can proceed as a

class action There also is no deadline in place for filing dispositive motions The Defendants are free to

file a motion for summary judgment based on Stanley having been released Per the Staff Master 3 March

1] 2022 Order the parties should have completed class based discovery by August 26 2022 The Court

and counsel Will soon know whether this case can proceed as a class action, notwithstanding the legal

issues raised by Stanley’s release, and whether another inmate can substitute in his place If the answer to

either question is no then Stanley’ claims may have to be dismissed However the entire case cannot be

dismissed yet because it is putative class action and any action the Court takes must take into consideration

‘ important and potentially adverse statute of limitations consequences[] ’ Abednego v 63 V I at 183

(quoting DzrecTV Inc v Leta 467 F 3d 842 845 (3d Cir2006)) For these reasons the Court declines to

exercise its discretion to convert the Defendants’ motion for judgment on the pleadings and will instead

adopt the Staff Master 3 recommendation to deny it

III CONCLUSION

1B9 For the reasons stated above, the Court concludes that reconsideration does not apply to the review

of orders, reports and recommendations of the Staff Master assigned to the Complex Litigation Division

Instead, Virgin Islands Rule of Civil Procedure 53(f) governs objections to, and motions to adopt or

modify, orders, reports, and recommendations of all masters, including the Staff Master Construing the

Defendants’ motion to reconsider as an objection under Rule 53(f)(2), the Court finds that it must be Stanley v V] Bureau 0fC07r er a1 2022 VI Super 77 Case No ST 2016 MC 00075 MEMORANDUM OPINION AND ORDER Page 27 of 28 overruled The Staff Master’s order denying the Defendants two year old motion to stay discovery was

not erroneous given Rule 26(d)(4) s mandate that motions do not stay discovery Further, as neither side

responded to the Staff Master 3 Recommendation regarding the Defendants motion for judgment on the

pleadings, the Court concludes that concerns overjudicial economy support reviewing only for clear error

Even if the Defendants were to prevail on their motion, it would not terminate the litigation because the

putative class members would have to be notified and allowed to intervene or file separate actions Havmg

reviewed the Staff Master’s Recommendation, the Court declines to convert the Defendants motion for

judgment on the pleadings into a motion for summary judgment and, substantially for the same reasons

given for overruling the Defendants objections to the Staff Master 3 January 12, 2022 Order, the Court

will instead adopt the Staff Master’s March 9 2022 recommendation to deny the Defendants motion

Accordingly, it is hereby

ORDERED that the Motion to the Presiding Judge to Reconsider the Staff Master’s January 12

2022 Order and Incorporated Memorandum of Law filed by Defendants Virgin Islands Bureau of

Corrections and Wynnie Testamark on January 26, 2022, is CONSTURED as an objection filed pursuant

to Rule 53(f)(2) of the Virgin Islands Rules of Civil Procedure and OVERRULED and the Order dated

and entered January 12 2022 is AFFIRMED It is further

ORDERED that the Recommendation of the Staff Master filed on March 9 2022 is REJECTED

as to the recommendation to convert the Motion for Judgment on the Pleadings filed by Defendants Virgin

Islands Bureau of Corrections and Wynnie Testamark on August 30 2021 to a motion for summary

judgment pursuant to Rule 12(d) of the Virgin Islands Rules of Civil Procedure and ADOPTED as to the

recommendation to deny the Motion for Judgment on the Pleadings filed by Defendants Virgin Islands

Bureau of Corrections and Wynnie Testamark on August 30, 2021 It is further

ORDERED that the Motion for Judgment on the Headings filed by Defendants Virgin Islands Stanley 1 VI Bu; em: of Con er a1 2022 VI Super 77 Case No ST ”016 MC 00075 MEMORANDLM OPINION AND ORDER Page 28 of 28

Bureau of Corrections and Wynnie Testamark on August 30, 2021, is DENIED

DONE and SO ORDERED this 3 day of September 2022

CNN“3: 1/ x“ a zxx/I HAROLD W L WILLOCKS ATTEST Administrative Judge of the Superior Coun Tamara Charies Clerk of the Court

By /M x A Court Cle Dated ‘4 1% {$2722.