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FOR PUBLICATION SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX THE LITWIN CORPORATION, PLAINTIFF, V. UNIVERSAL OIL PRODUCTS COMPANY; CHICAGO BRIDGE AND IRON N.V., INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO CHICAGO BRIDGE AND IRON; BIGELOW-LIPTAK; PORTILLA CORPORATION; RESCO PRODUCTS, INC.; RESAL, INC.; EXXON MOBIL CORPORATION, AS SUCCESSOR-IN-INTEREST TO MOBIL OIL COMPANY; GENERAL ENGINEERING CORPORATION, INDIVIDUALLY AND AS SUCCESSOR- IN-INTEREST TO REED, WIBLE & BROWN, INC.; KATALCO CORPORATION; Born, INC. F/K/A BORN ENGINEERING COMPANY; PARSONS INFRASTRUCTURE & TECHNOLOGY GROUP, AS SUCCESSOR-IN-INTEREST TO THE RALPH M. PARSONS COMPANY; DARCOID INTERNATIONAL CORPORATION; RUBBER AND GASKET COMPANY OF PUERTO RICO; AMERICAN CYANAMID COMPANY; SUD-CHEMIE, INC., AS SUCCESSOR-IN- INTEREST TO UNITED CATALYSTS INC.; CHRIS ANDERSON CONSTRUCTION AND MATERIALS COMPANY, INDIVIDUALLY AND AS SUCCESSOR-IN- INTEREST TO CHRIS ANDERSON MATERIALS; CHILDERS PRODUCTS COMPANY; ONDEO NALCO, AS SUCCESSOR-IN-INTEREST TO NALCO CHEMICAL COMPANY; ACME CANVAS AND ROPE COMPANY3 A/C PIPE, INC.; OPTIMIZED PROCESS FURNACES, INC.; STUBBS-OVERBECK, INC.; G.C. BROACH COMPANY; VIRGIN ISLANDS INDUSTRIAL MAINTENANCE CORPORATION; AND JOHN DOES 1 THROUGH 4, DEFENDANTS. Appearances: W. MARK WILCZYNSKI, ESQ. Law Office of W. Mark Wilczynkski, P.C. St. Thomas, VI 00804 For The Litwin Corporation CASE No. SX-05-CV-056 ACTION FOR CONTRIBUTION AND INDEMNITY JURY TRIAL DEMANDED JAMES L. HYMES, III Law Office of James L. Hymes, P.C. St. Thomas, VI 00802 For The Litwin Corporation RICHARD H. HUNTER, ESQ. Hunter & Cole Christiansted, VI 00820 For Universal Oil Products Company, Born, Inc., Childers Products Company, Inc., and Optimized Process Furnaces, Inc. MARK D. HODGE, ESQ. Hodge & Hodge St. Thomas, VI 00802 For Chicago Bridge & Iron, N. V. and Parsons Infrastructure & Technology Group, Inc.' CAROL G. HURST, ESQ. Carol G. Hurst. P.C. St. Thomas, VI 00802 For Bigelow-Liptak JOHN H. BENHAM, ESQ. Law Office of John H. Benham, P.C. St. Thomas, VI 00801 For Ondeo Nalco and Resco Products, Inc. GEORGE H. LOGAN, ESQ. Nichols, Newman, Logan, Grey & Lockwood Christiansted, V.I. 00820 For Resal, Inc. and Virgin Islands Industrial Maintenance Corporation KEVIN A. RAMES, ESQ. Law Office of Kevin A. Rames, P.C. Christiansted, VI 00822 For Exxon Mobil Corporation and Shell Oil Company EUGENIO W.A. GEIGEL-SIMOUNET, ESQ. GS Law Offices P.C. Gallows Bay, VI 00824 For General Engineering Corporation and Rubber & Gasket Co. of P.R. BERNARD C. PATTIE, ESQ. Law Offices of Bernard C. Pattie, P.C. Christiansted, VI 00820 For American Cyanamid Company and Stubbs Overbeck, Inc. ' The Court takes judicial notice that Maria Tankenson Hodge, Esq. and Adam G. Christian, Esq. for Hodge & Francois no longer represents these Defendants. The Litwin Corp. v. Universal Oil Products Co., et al. SX-05-CV-056 MEMORANDUM OPINION SIMONE R.D. FRANCIS, ESQ. Ogletree, Deakins, Nash, Smoak & Stewart, LLC St. Thomas. VI 00802 For Siid-Chemie, Inc. DOUGLAS CAPDEVILLE, ESQ. Law Offices of Douglas Capdeville, P.C. Christiansted, VI 00822 For G.C. Broach Company MEMORANDUM OPINION WILLOCKS, Administrative Judge BEFORE THE COURT are two Motions for an Extension of Time, one filed by Defendant General Engineering Corporation (hereinafter “GEC”); the other filed by Defendant Rubber & Gasket Company of Puerto Rico, Inc. (hereinafter “R&G”). The Plaintiff, The Litwin Corporation (hereinafter “Litwin’’), filed an Opposition to each Motion. For the reasons stated below, R&G’s Motion will be granted, and GEC’s Motion denied. FACTUAL AND PROCEDURAL BACKGROUND On February 2, 2005, Litwin filed a complaint in the Superior Court of the Virgin Islands for contribution and indemnification allegedly related to 159 lawsuits filed in the District Court of the Virgin Islands in which Litwin and other companies were sued by persons claiming to have been exposed to asbestos and other toxic substances at the former oil refinery operated by Hess Oil Virgin Islands Corporation on St. Croix (hereinafter “Claimants”). Approximately two-years before filing this lawsuit, Litwin “entered into a joint settlement agreement with [the 159] Claimants and other parties and settled all claims by Claimants with payment of a settlement.” (Compl. 30.) Litwin filed this action in the Superior Court to recoup some of the monies paid to settle with the Claimants. Litwin’s Complaint alleges that the companies named as defendants in this case were really to blame for the Claimants’ injuries because the Defendants produced, designed, manufactured, supplied, distributed, or sold “products containing asbestos, catalyst, refractory, or other harmful and hazardous and toxic substances,” id. J 31, which Litwin used at the former oil refinery. Litwin seeks contribution and The Litwin Corp. v. Universal Oil Products Co., et al. $X-05-CV-056 MEMORANDUM OPINION indemnification related to the tortious actions, inactions, and representations, cf: id. J 44, 70, 83, of the Defendants who (according to Litwin) were the ultimate cause of the Claimants’ injuries. GEC and R&G, among others, were named as Defendants. They both appeared through the same counsel on April 15, 2005 and motioned for an extension of time (forty-five days) to respond to the Complaint. Litwin did not oppose either Motion. Seventy-four days later, GEC and R&G responded by filing a Motion to Dismiss for failure to state a claim for relief (hereinafter “Dismissal Motions”). Both Dismissal Motions (filed on June 23, 2005) were opposed by Litwin. The Opposition to GEC’s Dismissal Motion was served on July 11, 2005 and filed with the Superior Court on July 14, 2005. The Opposition to R&G’s Dismissal Motion was served on July 14, 2005 and filed with the Superior Court on July 18, 2005. On July 27, 2005, GEC and R&G each filed a Motion for an Extension of Time (hereinafter “Additional Time Motion” or ““Motion”). GEC and R&G asked to have an additional fifteen days to file their replies to Litwin’s Oppositions. Litwin opposed both Motions on August 15, 2005. R&G filed its Reply in support of its Dismissal Motion on August 26, 2005, even though its Additional Time Motion was still pending. Four days later, R&G filed its Reply to Litwin’s Opposition to its Additional Time Motion. GEC filed its Reply in support of its Additional Time Motion on September 1, 2005 and its Reply to Litwin’s Opposition to its Dismissal Motion on September 14, 2005, also notwithstanding that GEC’s Additional Time Motion remained pending. By Order entered April 18, 2018, the Presiding Judge of the Superior Court of the Virgin Islands reassigned this case to the undersigned judge due to similarity of claims and parties with the cases grouped under the /n re: Kelvin Manbodh Asbestos Litigation Series master case. Following a review of this case, the Court, by Orders dated and entered September 14, 2018, granted GEC and R&G’s April 15, 2005 Motions for an Extension of Time to respond to Litwin’s Complaint. Notwithstanding that both Defendants had asked for forty-five days but took seventy-four days to respond, the Court nonetheless deemed their June 23, 2005 Dismissal Motions timely because Litwin The Litwin Corp. v. Universal Oil Products Co., et al. SX-05-CV-056 MEMORANDUM OPINION did not oppose. GEC and R&G have not answered Litwin’s February 2, 2005 Complaint yet because their Dismissal Motions and Additional Time Motions are pending. DISCUSSION At the time when R&G and GEC filed their Dismissal Motions, Local Rule of Civil Procedure 56.1, promulgated by the District Court of the Virgin Islands, provided that “dispositive motions filed pursuant to Civil Rules 12 and 56” should follow the same procedure. D.V.I. Local R. Civ. P. 56.1, reprinted in V.1. Ct. Rules Ann. 441 (2005 ed.) (hereinafter “LRCi”), superseded by In re: Amend. to the Local Rules of Civ. P., Misc. No. 2003-06, 2006 U.S. Dist. LEXIS 101812, *6-10 (D.V.I. Apr. 19, 2006) (applicable via Super. Ct. R. 7.).2 Dispositive motions had to “be accompanied by a notice of * How strictly Local Rule of Civil Procedure 56.1 was followed in the Territorial and Superior Courts of the Virgin Islands is unclear. In this case, for example, two defendants (Chicago Bridge & Iron, N.V. and Parsons Infrastructure & Technology Group, Inc.) adhered to Local Rule 56.1 in filing their motions to dismiss, whereas two other defendants (GEC and R&G) did not. A Territorial Court judge (Thomas, J.), had concluded in Citibank, N.A. v. Chammah, 44 V.1. 85 (Terr. Ct. 2001), that Rule 7 of the Rules of the Territorial Court, which provided that “‘[t]he practice and procedure in the Superior Court shall be governed by the Rules of the Territorial Court and, to the extent not inconsistent therewith, by the Rules of the District Court, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure and the Federal Rules of Evidence,” id. at 94 (quoting Terr. Ct. R. 7), did “‘not mandate verbatim adoption of the practice and procedure of the District Count.’” fd. (quoting Gov't of the VJ. v. Quetel, 18 V.1. 145, 149 (Terr. Ct. 1982)). The defendants in Chammiah had motioned to strike the plaintiffs summary judgment motion because the motion did not comply with Local Rule 56.1. The Chammah court denied that motion and further pointed out that the defendants themselves had failed to comply with Local Rule 56.1, namely the requirement that the movant file a complete set of motions papers. See id. (“[BJoth Defendants ... filed their origina! responses directly with the Court contrary to the procedures outlined in subsection (b).”). Of course, as a decision of a trial court judge, Chanunah is not binding on this Court. Cf Der Weer v. Hess Oil VI. Corp., 60 V.L. 91, 101 (Super, Ct, 2014) (“{D]ecisions of trial level courts are not binding on any other court, including that same trial court.” (citing fn re: Q0.G., 60 V.1. 654, 661 n.8 (2014): Gasperini v. Ctr. for Humanities, 518 U.S. 415, 430 1.10 (1996)), But the Supreme Court of the Virgin Islands did cite Chammah approvingly in Vanterpool v. Government of the Virgin Islands, 63 V.1. 563, 582-83 & nn.8-9 (2015). And the Court also held in Vanterpool that there was “no legitimate reason to extend District Court Rule 56.1 to proceedings in the Superior Court,” id. at 582 n.8, albeit in reference to a later version of Rule 56.1, not the version in force in 2005 when GEC and R&G filed their motions. So, it would appear at first blush that Rule 56.1 would not govern here. Cf. id. at 582 (emphasizing that “‘the Local Rules of the District Court should represent rules of fast resort rather than first resort.’” (quoting Sweeney v. Ombres, 60 V.I. 438, 442 (2014) (per curiam)). But the Rules of the Superior Court were silent in 2005 concerning the deadlines for filing responses and replies to motions in civil actions. While the Virgin Islands Supreme Court recently promulgated the Virgin Islands Rules of Civil Procedure, and provided that the new rules “govern . . . proceedings in any action pending on the effective date of the mules,” V.L R. Civ. P. 1-1(c)(2), even retroactively-applied rules cannot go back in time and “mov[e] . . . the proverbial goal posts after the contest is over.” State v. Meyers, 958 P.2d 187, 191 (Ore. Ct. App. 1998) (citations omitted). In other words, the promulgation of new procedural rules, even rules that can be applied retroactively, cannot be construed in such a way as to make a late motion timely or a timely motion late. Although the Virgin Islands Supreme Court has not issued an order limiting the retroactivity of the new rules, cf V.I. R. Civ. P. 1-1(c)(2)(A), this Court has concluded that “[rjather than reaching back in time, Rule 1-1 must require that the rules in effect prior to March 31, 2017 continue to govern motions pending as of that date, but for all motions filed after March 31, 2017, the new rules will apply unless application to the case (not a particular motion) would be unjust or infeasible.” Jones v. Lockheed Martin Corp., 68 V.L.158, 184 n.9 (Super. Ct. 2017) (quotation marks and citations omitted). Therefore, notwithstanding Vanterpool’s holding, Local Rule of Civil Procedure 56.1 must have applied here because it was the only authority in effect in 2005 when GEC and R&G filed their motions. Accord In re: Refinery Dust Claims, SX-06-CV-078, 2016 V.I. LEXIS 48, *12-13 n.11 (V.1. Super. Ct. May 3, The Litwin Corp, v. Universal Oil Products Co., et al. SX-05-CV-056 MEMORANDUM OPINION motion, brief, affidavits, and/or other supporting documentation” and then “serve[d] on all parties.” LRCi. 56.1(a)(1). Only the notice of motion had to be filed with the Clerk, however. See id. “Any party adverse to a motion . . . [could then] respond by serving a notice of response, opposition, brief, affidavits and other supporting documentation.” LRCi 56.1(b). Responses had to “be served on the moving party within twenty (20) days” after service of the notice and motion papers. /d. “Any reply from the movant [wa]s due within ten (10) days of being served with an opposition from an adverse party.” LRCi 56.1(a)(2). Once the motion was fully “addressed by all parties and . . . ready for submission to the Court,” the movant then had to “file a cover letter and all original papers received from all parties with the Clerk,” LRCi 56.1(a)(3), and serve a copy on “all other parties.” fd. In this instance, R&G and GEC filed their Dismissal Motions the same day: June 23, 2005. Hence, any party adverse to either Motion had twenty days to serve a response. Litwin served its Opposition on GEC on July 11, 2005 and on R&G on July 14, 2005. GEC and R&G each had ten days to reply. However, because R&G was served three days later than GEC, R&G had more time than GEC to reply. Rather than reply, GEC and R&G filed their Additional Time Motions on July 27, 2005. To determine whether each Motion was timely and, therefore, what legal standard applies, the Court must turn to the rules that governed at the time, namely Superior Court Rules 9 and 10. Cf Jones v. Lockheed Martin Corp., 68 V.I. 158, 184 n.9 (Super. Ct. 2017) (concluding that rules in force when a motion was filed apply to that motion); accord V.I. R. Civ. P. 1-1(c)(2) (newly-promulgated rules govern in actions pending (not motions pending) on effective date). Superior Court Rule 10 provided, in pertinent part, as follows: When an act is required or allowed to be done at or within a specified time-- (a) The court for cause shown may at any time in its discretion: 2016) (“There are currently no applicable Virgin Islands statutes, Superior Court rules, or Supreme Court precedents that are directly on point regarding time periods for motions and responses filed with the Superior Court, Judges, magistrates, and attorneys in the Superior Court have come to rely on the provisions of Local Rule 7.1(e), and thus, the practice of abiding by the time periods set forth in this rule have become routine and expected within the Superior Court.” (citation omitted)), Finally, the concerns raised in Chammah and in Vanterpool involved Local Rule 56.1's filing requirements, not its timing requirements. Cf Chammah, 44 V.I. at 93; Vanterpool, 63 V.1. at 584. The Litwin Corp. v. Universal Oil Products Co., et al. SX-05-CV-056 MEMORANDUM OPINION 1. With or without notice, order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order of the court. 2. On motion, permit the act to be done after the expiration of the specified period if the failure to act was the result of excusable neglect. Super. Ct. R. 10(a) (2005 ed.). Superior Court Rule 9 also provided as follows: In computing any period of time prescribed or allowed by these rules, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a holiday. When a period of time prescribed or allowed by these rules is less than eleven days, intermediate Saturdays, Sundays and holidays shall be excluded from the computation. Super. Ct. R. 9 (2005 ed.). In this instance, the “act . . . allowed to be done,” Super. Ct. R. 10(a), was the filing of a reply to a response in opposition to a motion. There were no previous orders issued by the court (Donohue, J.), modifying the deadlines imposed by the rules of procedure. Ergo, Superior Court Rule 10 governed and GEC and R&G had to act (file a reply) within ten days after Litwin served its Oppositions. However, because ten days was the “period of time . . . allowed by these rules,” (i.e., by Superior Court Rule 7 which incorporated Local Rule 56.1), and because ten days “‘is less than eleven days,” both GEC and R&G had ten business days (not ten calendar days) to file their replies. The result is that R&G’s Additional Time Motion was filed before its time to act expired, whereas GEC’s Additional Time Motion was filed after its time to act expired. Since different legal standards apply, the Court shall consider each Motion separately. Accord In re: Red Dust Claims, SX-15-CV-620, __ V.1. __, ; 2017 V.I. LEXIS 98, *20-21 (V.L Super. Ct. July 7, 2017) (“All the motions before the Court seek the same relief: additional time to act. But different standards apply based on when each motion 3 Litwin served its Opposition on GEC on Monday, July 11, 2005; ten days later (exclusive of intervening Saturdays and Sundays) was Monday, July 25, 2005. Litwin served its Opposition on R&G on Thursday July 14, 2005 and ten days later (exclusive of intervening Saturdays and Sundays) was Thursday, July 28, 2005. The Litwin Corp. v. Universal Oil Products Co., et al. SX-05-CV-056 MEMORANDUM OPINION was filed. . . . [OJnly cause has to be shown when requests come before the time to act has expired. If the request comes late, then good cause must be shown.”) A. GEC’s Additional Time Motion In its Motion, GEC “advise[d] this Court” that its counsel “needfed] additional time to review Plaintiff's exhibits and opposition in order to properly file a reply to said opposition. Particularly in light of the fact that [Litwin’s Opposition] was not received until July 15, 2005.” (GEC’s Add’! Time Mot. 1.) GEC then requested “a fifteen (15) day extension” of time to file its reply to Litwin’s Opposition. /d. Litwin opposed GEC’s motion “because GEC ha[d] not bothered to show cause to the Court as to why it should exercise its discretion to further delay these proceedings.” (PI.’s Opp’n to GEC’s Mot. for Extension of Time 2, filed Aug. 15, 2005.) ““GEC’s bald assertion that it ‘needs more time’ does not show cause,” Litwin claimed. /d. “Rather, it shows only a failure of diligence” and “(t]he court should not reward such inattention with an extension of time.” /d. In this instance, the Court must agree. Superior Court Rule 10 directs that, if “application” for an extension of time “is made before expiration of the period originally prescribed,” the court “for cause shown” may extend the time to act “[w]ith or without notice.” Super. Ct. R. 10(a)(1) (emphasis added). However, if application for an extension of time is made “after expiration of the specific period,” the party requesting an extension must do so “[o]n motion” and must show “excusable neglect.” Super. Ct. R. 10(a)(2) (emphasis added). Accord Edwards v. Hess Oil V.I. Corp., SX-15-CV-382, Vi ; 2017 V.I. LEXIS 94, *5 (V.I. Super. Ct. June 28, 2017) (“Superior Court Rule 10... provides that the court for cause shown may at any time in its discretion order the period enlarged if application is made before the specified period has passed. However, if the request comes after the specified period has passed, then courts can permit the act to be done if the failure to act was the result of excusable neglect.” (quotation marks, brackets, ellipses, and citations omitted)). The Litwin Corp, v. Universal Oil Products Co., et al. SX-05-CV-056 MEMORANDUM OPINION “The Supreme Court of the Virgin Islands has established that in this jurisdiction excusable neglect is essentially synonymous with good cause.’” /d. (quoting McGary v. J.S. Carambola, L.L.P., SX-13-CV-289, __V.L ; ; 2016 V.I. LEXIS 166, *4 (V.I. Super. Ct. Oct. 7, 2016)). —— ? +7 Consequently, determining excusable neglect is an ‘“‘equitable’” determination where courts consider all relevant circumstances surrounding the omission including the danger of prejudice to the opposing party, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith. Greene v. V.f. Water & Power Auth., 67 V.1. 727, 738 (2017) (ellipses omitted) (quoting Fuller v. Browne, 59 V.1. 948, 954 (2013). “Any delay that affects the Superior Court’s ability to manage its docket as a whole weighs against a finding of excusable neglect. . .. And delay entirely within the movant’s control . . . does not support a finding of excusable neglect.” /d. (citations omitted). Further, “[c]ause, including good cause, must be shown, not argued, concluded, or stated.” People v. Rivera, 68 V.I. 393, 418 (Super. Ct. 2018) (citations omitted). That said, “the showing needed to support a motion for an extension of time is not the same as that needed for a motion for judgment of acquittal or for summary judgment. But the moving party must provide some factual support and unsworn statements of counsel in motion papers cannot suffice.” /d. (citations omitted). Here, GEC had until July 25, 2005 to file a reply or to show cause for an extension of time. GEC missed that deadline. Therefore, GEC had to file a motion and show good cause or excusable neglect for the delay. GEC did file a motion, but failed to meet its burden. First, GEC did not support its Motion with any affidavit or affirmation from its counsel. Thus, the Court has only unsworn statements of an attorney to consider, which cannot suffice to show good cause. Cf. id. (“‘Show’ and ‘state’ are not synonymous. To ‘show’ means to make clear or apparent; to prove.” (quotation marks and citations omitted)); accord Greene, 67 V.I. at 737 (“Since Greene’s response in opposition and consequently, his request for an extension of time to file an additional opposition—was untimely, The Litwin Corp. v. Universal Oil Products Co., et al. SX-05-CV-056 MEMORANDUM OPINION Superior Court Rule 10 obligated Greene to demonstrate excusable neglect in order to receive the requested extension of time.” (emphasis added)). Second, both GEC and Litwin fail to recognize that GEC’s Motion (dated and filed July 27, 2005) came two days after the filing deadline. Hence, both parties applied the wrong legal standard. For GEC, it works against finding good cause. Cf Fontaine v. Hess Oil V.I. Corp., 42 V.I. 117, 120 (Terr. Ct. 2000) (Historically, courts adhered to a firm rule that the excusable neglect standard can never be met by a showing of inability or refusal to read and comprehend the plain language of the federal rules. And that rule applied with equal force to a party’s failure to comply with a local rule of court.” (quotation marks and citations omitted)). Nonetheless, Litwin is correct, in that “GEC offer{ed] the court absolutely no explanation of why it could not have prepared its response during that twelve day lag time between its receipt of the Opposition and its filing of the instant motion.” (PI.’s Opp’n to GEC’s Mot. for Extension of Time 2.) Presumably, Litwin arrived at a twelve-day delay by counting from July 15, 2005, the date (according to GEC’s counsel) that Litwin’s Opposition was received. But the certificate of service appended to Litwin’s Opposition states that “an exact copy . . . [was] served, by mailing same, postage prepaid, upon” counsel for GEC, among others. (Pl.’s Opp’n to Def. GEC’s Mot. to Dismiss 10, filed July 14, 2005.) And “[a] certificate of service ts prima facie evidence of the fact of service.” Ayala v. Lockheed Martin Corp., 67 V.1. 290, 297 (Super. Ct. 2017) (quotation marks and citation omitted). While GEC’s counsel stated that Litwin’s Opposition was not received until July 15, 2005, something this Court has no reason to doubt, that date is of no moment here because the time to file responses and replies under former Rule 56.1 began from the date of service, not receipt—and not filing with the Clerk’s Office since the entire set of motions papers (the motion, any responses, and replies as well as exhibits thereto) had to be filed simultaneously. GEC did emphasize that receipt of Litwin’s Opposition on July 15, 2005, was in part the reason why GEC needed additional time. Consequently, counsel should have known on July 15, 2005 or soon thereafter that “he need{ed] additional time to review Plaintiff's exhibits and opposition in order to properly file a reply to said The Litwin Corp. v. Universal Oil Products Co., et al. SX-05-CV-056 MEMORANDUM OPINION Page If of 17 opposition.” (GEC’s Add’l Time Mot. 1.) The failure to explain the reason for the delay—even if counted from July 15, 2005 to July 25, 2005—does not support finding excusable neglect here. Cf Greene, 67 V.1. at 738 (“[D]elay entirely within the movant’s control . . . does not support a finding of excusable neglect.”). Additionally, although prejudice is a factor that must be considered, see id., the Court does not she 299 find prejudice here. First, there is no prejudice to Litwin (“the opposing party,’” id. (quoting Fuller, 59 V.I. at 954), because GEC’s request for additional time concerned its right to file a reply to an opposition to a motion. Also, Litwin did not have the right to file a surresponse to GEC’s reply because leave to file further response or reply must be granted by a court. Cf Der Weer v. Hess Oil V.I. Corp., 64 V.I. 107, 120 (Super. Ct. 2016) (“Generally the parties are expected to succinctly address their arguments in three filings— a motion, a response and a reply—or less, if possible. Courts do have the discretion, however, to allow further response or reply when necessary or warranted.” (quotation marks and citations omitted)). Here, only GEC could have been prejudiced by the delay and “‘self-prejudice” is not a factor to consider.* Finally, the Court must consider the “length of the delay and its potential impact on judicial proceedings.” Greene, 67 V.I. at 738 (quotation marks and citation omitted). GEC’s reply was due on * Some courts do consider “self-prejudice” as a factor. E.g., in Re: Cathode Ray Tube (CRT) Antitrust Litig., MDL No. 1917, 2014 U.S, Dist, LEXIS 125777, *120 (N.D. Cal. Sept. 8, 2014) (“[T]he Ninth Circuit has stated that consideration of the prejudice to the movant should also be considered in analyzing excusable neglect.” (citing Feinstein v. Serv. Solutions Grp. LLC, 464 F. App'x 670, 671 (9th Cir. 2012)); Rodriguez v. City of Modesto, No, CV F 10-1370, 2081 U.S. Dist. LEXIS 60508, *10 (E.D. Cal. June 7, 2011) (“Although not an ‘explicit’ factor, prejudice to the movant should be considered when appropriate.” (citing Lemoge v. United States, 387 F.3d 1188, 1195 (9th Cir. 2009)). But the consideration of prejudice to the moving party is typically a factor courts consider only when the consequences are dire. Cf Lynit v. Metwest Mortg. Servs., No. CV03-2164-PHX-DGC, et seq.. 2005 U.S. Dist. LEXIS 21940, *10-11 (D. Ariz. Sep. 28, 2005) (“Factors relevant to an excusable-neglect decision in a motion to extend the time for filing a notice of appeal include ‘the danger of prejudice to the moving party, length of the delay and its potential impact on judicial proceedings, reason for the delay, including whether it was within the reasonable control of the movant and whether movant acted in good faith.”” (emphasis added) (quoting Bishop v. Corsentino, 371 F.3d 1203 (10th Cir, 2004)); see also Nauman v. Samuels, 73 Va. Cir. 411, 413 (Cir. Ct. 2007) (“Factors important to a court's analysis include: prejudice to the moving party, whether the defendant's failure to file {an answer) constitutes ‘excusable neglect,’ and whether an extension to file pleadings would promote the ‘ends of justice.’” (emphasis added) (citations omitted)). But the Supreme Court of the Virgin Islands has only instructed courts to consider “[p]rejudice to the nonmoving party.” Greene, 67 V.1. at 738. Here, there is none because GEC filed its Reply, notwithstanding that the Court had not granted its Additional Time Motion. The Litwin Corp. v. Universal Oil Products Co., et al. SX-05-CV-056 MEMORANDUM OPINION July 25, 2005. GEC filed its Additional Time Motion two days late. The delay is de minimis and did not have any impact on this case. But GEC also filed its Reply in support of that Motion late. While the Court is sympathetic to the reasons GEC’s counsel proffered in its Reply, “sympathy is not a part of the excusable neglect analysis.” In Re: Cathode Ray Tube (CRT) Antitrust Litig., MDL No. 1917, 2014 U.S. Dist. LEXIS 125777, *121 (N.D. Cal. Sept. 8, 2014). “Instead, the Court must engage in a fact-bound inquiry, taking account of the relevant circumstances before determining whether a party’s neglect is excusable. In doing so, the Court is, as all courts are, dependent on the parties to submit and develop the factual record necessary to resolve the issue.” Jd. at *121-23. Furthermore, the reasons GEC asserted in its Reply cannot be considered because it was untimely and raised new arguments for the first time. See Der Weer v. Hess Oil V.I. Corp., 61 V.1. 87, 96 (Super. Ct. 2014) (“The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion... . [A]llowing a new argument to be asserted in a reply in support of the original motion .. . does not give the party opposing the motion the opportunity to respond.” (quotation marks and citations omitted)). GEC waited too late to deem it “appropriate in light of Litwin’s motion, to inform” the Court of the reasons why it could not timely file its Reply to Litwin’s Opposition to its Dismissal Motion. (Def. GEC’s Reply to Pl.’s Opp’n to Mot. for Extension of Time 1, filed Sept. 1, 2005.) GEC failed to show (rather than state) good cause for granting an extension of time, and the Court cannot excuse GEC’s neglect. Accordingly, the Court must deny GEC’s Motion and strike GEC’s September 14, 2005 Reply. Accord Edwards, ____ V.1. at ___; 2017 V.I. LEXIS 94 at *8 n.4 (“[I]t may be more sound if Virgin Islands courts did not fault attorneys who proceed as though they will be granted additional! time, recognizing that, if good cause is not found, courts can still deny their motions and strike any late-filed papers.”). The Litwin Corp. v. Universal Oil Products Co., et al. SX-05-CV-056 MEMORANDUM OPINION B. R&G’s Additional Time Motion R&G offers similar reasons as GEC offered in its Motion, namely the “need[ for] additional time to review Plaintiff's exhibits and opposition in order to properly file a reply to said opposition.” (Def. R&G’s Mot. for Extension of Time 1, filed July 27, 2005.) But unlike GEC, R&G filed its Motion “before the expiration of the period originally prescribed.” Super. Ct. R. 10(a)(1). The consequence is that R&G did not have to show good cause, only cause. Accord Edwards, ___ V1. at ___; 2017 V.I. LEXIS 94 at *7 (movant “did not have to show good cause or excusable neglect, only cause” for motion filed before deadline passed); see also Super. Ct. R. 10(a) (“for cause shown.”). The difference matters here.> Although “courts in the Virgin Islands have consistently held that a busy schedule of counsel, by itself, does not establish excusable neglect,” id., (emphasis added), courts have also recognized that “the fact that an attorney is busy on other matters may qualify as cause shown.” /d. (quotation marks and citations omitted). In other words, “‘being “too busy” to have responded,’” Red Dust Claims, ____ V.I. at ___: 2017 V.I. LEXIS 98 at *22 (quoting Hills v. Whitecap Invest. Corp., ST-12-CV-395, 2016 V.I. LEXIS 11, *6 (V.I. Super. Ct. Feb. 8, 2016)), will never constitute good cause, but it can, in the appropriate circumstances, constitute cause for granting an extension of time. Cf. Kan. Packing Co. v. Lavilla, 39 V.1. 71, 76 (Terr. Ct. 1998) (“While the fact that an attorney is busy on other matters O78 may qualify as cause shown, it does not fall within the definition of “excusable neglect.’” (citations omitted)); see also GRS Dev. Co. v. Jarrett, 45 V.1. 211, 216 (Terr. Ct. 2001) (citing Kansas Packing Company and explaining “that being an extremely busy attorney qualified as ‘cause shown’ but does not qualify as excusable neglect.”). For example, in Edwards v. Hess Oil Virgin Islands Corporation, * Technically, the “for cause shown” standard governs “application[s] ... made before the expiration of the period originally prescribed,” Super. Ct. R. 10(a)(1) (emphasis added), as well as motions filed “afrer the expiration of the specified period.” Super. Ct. R. 10(a)(2) (emphasis added). However, adding the requirement that courts determine whether “the failure to act was the result of excusable neglect,” id., elevates the legal standard when requests for an extension of time come late. Then, good cause has to be shown and excusable neglect found. The Litwin Corp. v. Universal Oil Products Co., et al. SX-05-CV-056 MEMORANDUM OPINION the defendants sought an extension of time to file answers to 101 complaints. Since the defendants filed their motion before their time to answer had passed, the Superior Court concluded that “drafting over two hundred answers” as well as the “upcoming holidays, and previously scheduled travel plans [of counsel] constitute[d] a showing of cause under Superior Court Rule 10(a).” Edwards, ___ V.I. at __; 2017 V.I. LEXIS 94 at *8. Like in Edwards, R&G did not have to show good cause for additional time, only cause. Litwin acknowledges as much, but counters that R&G’s “Motion utterly fails to show any cause why the original time period for its response to Litwin’s Opposition was insufficient.” (Pl.’s Opp’n to Def. R&G’s Mot. for Extension of Time 2, filed Aug. 15, 2005.) The rules of procedure should be administered quickly and aim toward eliminating unjustifiable delays, Litwin argues. Cf. id. at 3 (‘To be effective, judicial administration must not be leadenfooted. . . . For this reason, Territorial Court 999 Rules, including Rule 10, are intended to eliminate unjustifiable delays.’” (quoting Fontaine, 42 V.1. at 121). Litwin is correct here too, but only insofar as R&G failed to show cause, i.e., support its Motion with an affidavit, affirmation, or other factual support. Cf Rivera, 68 V.I. at 418 (“Cause, including good cause, must be shown, not argued, concluded, or stated.”); accord People v. Hatcher, 68 V.1. 378, 381 (Super. Ct. 2018) (“[E]xcusable neglect and good cause must be shown, not concluded.”). R&G did put forth a reason for why it needed more time, namely to review the exhibits Litwin attached to its Opposition. But R&G did not make any showing in its Motion. Cf Rivera, 68 V.I. at 418 (“Show and state are not synonymous. To show means to make clear or apparent; to prove.” (quotation mark and citation omitted)). Fortunately for R&G, however, Litwin forfeited any objection to the deficiency by not raising it in its Opposition. Cf United States v. Noble, 762 F.3d 509, 528 (6th Cir. 2014) (‘Forfeiture is the failure to make the timely assertion of a right.” (brackets omitted) (quoting United States v. Olano, 507 U.S. 725, 733 (1993)); accord McCloud R. R. Co. v. Sabine River Forest Prods., Inc., 735 F.2d 879, 882 (Sth Cir. 1984) (“Sabine’s implicit argument that the unsworn affidavit filed in support of the The Litwin Corp. v. Universal Oil Products Co., et al. SX-05-CV-056 MEMORANDUM OPINION motion renders the motion deficient is also waived (sic) for failure to make a timely objection in the district court.”’); see also Auto Drive-Away Co. v. Interstate Commerce Comm'n, 360 F.2d 446, 448- 49 (Sth Cir. 1966) (“An affidavit that does not measure up to the standards of Rule 56(e) is subject to a timely motion to strike. In the absence of this motion or other objection, formal defects in the affidavit ordinarily are waived.” (emphasis added) (footnote and citations omitted)).° That said, R&G’s failure to show cause is not the root of Litwin’s objection. Rather, Litwin just disagrees that R&G needed more time to reply. (Cf. Pl.’s Opp’n to R&G’s Add’] Time Mot. 2 (“[R&G] offers the court absolutely no explanation of why it could not have prepared its response during that twelve day lag time between its receipt of the Opposition and its filing of the instant motion, nor why the general time period for responding to Litwin’s Opposition is insufficient.” (emphasis added)).) Whether the amount of time R&G would have had (if it had not asked for more) was sufficient is not of concern for this Court. R&G asked for more time before its time to act had passed. Litwin forfeited any objection to R&G’s failure to show (rather than state) cause. Consequently, the Court can consider the reasons R&G proffered in support and those reasons were the “need[] . . . to review Plaintiff’s exhibits and opposition in order to properly file a reply to said opposition.” (R&G’s Add’l Time Mot. 1.) If an attorney’s busy schedule can constitute cause for granting her or him additional! time, cf. Kan. Packing Co., 39 V.I. at 7, then certainly the need to review and prepare a proper reply in support of a dispositive motion also constitutes cause for granting an extension of time. Litwin attached to its Opposition copies of a nine-page opinion issued in Jn re: Kelvin Manbodh Asbestos Litigation Series; a January 16, 2003, settlement agreement concerning complaints filed in District Court of the Virgin Islands, the United States District Court for the Eastern District of Pennsylvania, ® The Court acknowledges that the same holds for GEC’s Motion, i.e., that Litwin forfeited any objection to GEC’s failure to show good cause. The difference between the two is that, for motions that are filed after the deadline to act has passed, court must find excusable neglect based on the good cause shown by the movant. Even if the Court were to find that Litwin forfeited the right to object to GEC’s failure to show (not state) good cause, the Court still would not be able to find excusable neglect from the reasons GEC put forth. The Litwin Corp. v. Universal Oil Products Co., et al. S$X-05-CV-056 MEMORANDUM OPINION and the Territorial Court of the Virgin Islands; and a January 23, 2003 release. Considering that R&G did not receive Litwin’s Opposition “until July 15, 2005,” (R&G’s Add’l Time Mot. 1), and that its Reply was on July 28, 2005, the amount of time R&G requested (fifteen more days) was not exorbitant. That said, R&G (like GEC) took more time than requested. R&G did not file its Reply until August 30, 2005. But the delay was de minimis. Furthermore, “[c]ourts in the Virgin Islands have not yet considered whether a moving party, faced with a pending motion for an extension of time or for leave to act out-of-time, should proceed as if the motion were granted.” Edwards, ___ V.1. at ____; 2017 V.I. LEXIS 94 at *8 n.4. Technically, R&G could have waited for the Court to rule on its Motion since there is no binding precedent on this issue. See id. (“Courts in other jurisdictions strongly disapprove of the practice [of proceeding as though the motion were granted].” (collecting cases). Given the amount of time that R&G’s Motion has been pending, the Court will not now penalize it for filing its Reply, albeit a month late. Litwin did not object and the delay was not a cause for this case lying dormant. Accordingly, R&G’s Motion will be granted. CONCLUSION After careful consideration and review, the Court must deny GEC’s Motion because GEC filed it late, failed to show good cause for the delay, and raised new arguments in its Reply, which the Court cannot consider. Consequently, the Court does not find excusable neglect and the Reply GEC submitted in support of its Dismissal Motion, which was filed before its Additional Time Motion was ruled on, must be stricken. The Court will, however, grant R&G’s Motion. R&G filed its Motion before its time to act had passed and, therefore, only had to show cause. Although R&G (like GEC) failed to show (rather than state) cause, Litwin forfeited any objection by not raising that deficiency in its Opposition. The Court agrees that additional time to review an opposition and prepare a reply in support of a dispositive motion constitutes cause for an extension of time under Superior Court Rule 10(a)(1). Accordingly, R&G’s Reply in support of its Dismissal Motion will be deemed timely. The Litwin Corp. v. Universal Oil Products Co., et al. SX-05-CV-056 MEMORANDUM OPINION An appropriate order follows DATED this GL day of September, 2018. ATTEST LDA) xf 4 HAROLD W.L. WILLOCKS Estrella H. George Clerk of i, Up Administrative Judge of the Superior Court jf By Vy U/ Vg Ci (DY peri Spr Dated Gy f ¢ J °