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FOR OFFICIAL PUBLICATION SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX JULES J. VICTOR AND MAGDALENE L. VICTOR Plaintiffs, v. HESS OIL VIRGIN ISLANDS CORPORATION; HOVENSA, LLC; AMERADA HESS CORPORATION; LITWIN CORPORATION, individually and as successor-in interest to LITWIN PAN-AMERICAN CORPORATION; FLUOR ENGINEERS & CONSTRUCTORS, INC.; RIGGERS & ERECTORS INTERNATIONAL, INC.; RARITAN SUPPLY COMPANY, individually and as successor-in-interest to BRIDGE SUPPLY COMPANY; 3M a/k/a MINNESOTA MINING & MANUFACTURING COMPANY; CLEMCO INDUSTRIES, INC.; INGERSOLL RAND CORPORATION; and JOHN DOE DEFENDANTS, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. SX-05-CV-790 ACTION FOR DAMAGES COMPLEX LITIGATION DIVISION Appearances:1 THEODORE H. HUGE, ESQ. Harris & Huge, LLC Charleston, SC 29403 For Plaintiffs LEE J. ROHN, ESQ. Lee J. Rohn & Associates, LLC Christiansted, VI 00820 For Plaintiffs CARL A. BECKSTEDT, III, ESQ. Beckstedt & Associates Christiansted, VI 00820 For Hess Oil Virgin Islands Corporation, HOVENSA, LLC, and Amerada Hess Corporation W. MARK WILCZYNSKI, ESQ. Law Office of W. Mark Wilczynski, P.C. 1 Because associations have changed over the years, current firms are listed as well as counsel who represent the same parties in other cases, notwithstanding any attorney’s failure to withdraw or file notice of or revise their appearances. Victor, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-05-CV-790 MEMORANDUM OPINION St. Thomas, VI 00804 For Litwin Corporation JAMES L. HYMES, III, ESQ. Law Office of James L. Hymes, P.C. St. Thomas, VI 00802 For Litwin Corporation MICHAEL J. SANFORD, ESQ. Sanford, Amerling & Associates Christiansted, VI 00820 For Riggers & Erectors International, Inc. RICHARD H. HUNTER, ESQ. Hunter & Cole Christiansted, VI 00820 For Raritan Supply Company SIMONE R.D. FRANCIS, ESQ. Ogletree, Deakins, Nash, Smoak & Stewart, LLC St. Thomas. VI 00802 For 3M EDWARD L. BARRY, ESQ. Law Offices of Edward L. Barry Christiansted, VI 00820 For Clemco Industries, Inc. JOHN H. BENHAM, ESQ. Law Office of John H. Benham, P.C. St. Thomas, VI 00801 For Fluor Engineer & Constructors, Inc. and Ingersoll Rand Corporation MEMORADUM OPINION MOLLOY, Judge. THIS MATTER is before the Court on review following the transfer of this case to the newly- created Complex Litigation Division. The Court (Donohue, J.) previously denied a motion filed by Fluor Engineers & Constructors, Inc. (“Fluor”) to dismiss for insufficient service of process. Having reviewed the record, the Court concludes that the denial was in error. Accordingly, for the reasons Victor, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-05-CV-790 MEMORANDUM OPINION stated below, the Court find this to be a rare instance where the Court must correct its own error and vacate the prior order, grant the motion, and dismiss the claims of the plaintiffs Jules J. Victor (“Mr. Victor”) and Magdalene L. Victor (“Mrs. Victor”) (collectively “the Victors” or “the Plaintiffs”) without prejudice as to Fluor. I. BACKGROUND The Victors filed a complaint through Theodore H. Huge, Esq. (“Attorney Huge”) against several named companies and several unknown companies sued as John Does. Mr. Victor alleged exposure to silica dust when he worked at St. Croix oil refinery as a sandblaster from 1978 to 1997. The Victors sought damages, including punitive damages, for various torts, including negligence and intentional infliction of emotional distress. Proof of service was never filed for any defendants. However, a process server, Pauline Purvis with National Registered Agents, Inc. (“NRAI”), did notify Attorney Huge by letter dated April 18, 2006 that legal documents NRAI had received for service on Fluor had to be returned because “the name of the entity must be identical to that of the State Authority responsible for maintaining the records of this type entity transacting business in the state” and because “the status (active on the record of the state authority responsible for maintaining said records) of the entity must permit service on the registered agent and the registered agent’s authority to receive summons must not have been withdrawn.” (Letter from P. Purvis to T. Huge (Apr. 18, 2006), filed May 1, 2006.) A copy of the April 18, 2006 letter was mailed to the Superior Court of the Virgin Islands and docketed in this case by the Clerk’s Office on May 1, 2006. Fluor appeared through counsel on June 19, 2006 and filed a motion to dismiss for insufficient service of process. In its motion, Fluor represented that “summons and complaint were Victor, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-05-CV-790 MEMORANDUM OPINION received by mail at Fluor on May 15, 2006, a full 31 days after expiration of the 120-day period,” (Fluor’s Mot. to Dismiss 2, filed June 19, 2006 (“Mot.”)), when calculated from “December 16, 2005,” the date “[t]he complaint in the instant action was filed in this Court.” Id. at 1. Because more than 120 days had passed, Fluor moved to dismiss pursuant to Superior Court Rules 7 and 27(b) and Federal Rule of Civil Procedure 4(m) and 12(b)(4). The Victors did not file a response in opposition. On November 3, 2006, the Court (Donohue, J.) denied Fluor’s motion for the following reasons: The above-captioned matter was filed on December 28, 2005. Under Rule 4(m) of the Federal Rules of Civil Procedure, service of the Complaint or Summons must be completed within 120 days. This would require service to be completed by Wednesday, April 27, 2006. Fluor alleges that service was not perfected until May 15, 2006, 19 days outside the 120 day period. However, Fluor has failed to provide this Court with any evidence to substantiate its allegations. (Order 1, entered Nov. 6, 2006.) Fluor never renewed its motion or filed an answer. Several defendants were later dismissed voluntarily by the Victors both with and without prejudice. After a period of inactivity, the Court issued an order on August 16, 2010, directing counsel to provide an update regarding the status of the case, which had been dormant for over three years and was “subject to dismissal for lack of prosecution.” (Order 1, entered Aug. 17, 2010 (citing Fed. R. Civ. P. 41(b)).) Fluor responded on September 20, 2010 to alert the Court to an unfiled stipulation from October 2006 between the Victors and Fluor, 3M, Riggers & Erectors International, Inc., and Ingersoll-Rand Corporation, agreeing to a voluntary dismissal without prejudice. Fluor attached a copy of the stipulation to its response. The Plaintiffs also responded, but through Lee J. Rohn, Esq. (“Attorney Rohn”), who filed a motion for an extension of time on September 15, 2010, which was granted two years later by order entered March 8, 2012. Victor, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-05-CV-790 MEMORANDUM OPINION Once the Plaintiffs failed to respond, the Court (Donohue, P.J.) issued a follow-up order, explaining that “at this time only Defendant Ingersoll-Rand Corporation and . . . Fluor . . . and the John Doe Defendants remain parties to this matter.” (Order 2, entered Mar. 27, 2012.) The Court took note, however, that Fluor and Ingersoll-Rand Corporation had “apprised the Court that four years earlier Plaintiffs were considering dismissing all claims against them as well. If the parties did execute stipulations for dismissal, they never filed any with the Court,” the order explained. Id. Attorney Rohn responded once again by motion filed on May 4, 2012 for an extension of time, which the Court granted on May 12, 2012. However, the Clerk’s Office failed to serve that order on Attorney Rohn or Attorney Huge. To date, nothing further has occurred, except that on August 30, 2018, the Presiding Judge of the Superior Court issued an order to transfer this case to the newly- created Complex Litigation Division of the Superior Court of the Virgin Islands. II. DISCUSSION A. Authority to Revise Interlocutory Orders “[T]he judicial power of the Territory is . . . vested in courts, and not to individual judges.” Vanterpool v. Gov't of the V.I., 63 V.I. 563, 572 (V.I. 2015) (citation and footnote omitted). It has long been the custom and practice of the Clerk’s Office to reassign to an incoming judicial officer all the cases on the docket of her or his predecessor. Once a case has been reassigned either by the Clerk’s Office or by the Presiding Judge directly, the subsequent judicial officer “simply replaces” his predecessor and “exercise[s] plenary review” over the case. In re: Estate of George, 59 V.I. 913, 920 (V.I. 2013). The Clerk’s Office reassigned this case to the undersigned judicial officer following the retirement of the prior judge and the Presiding Judge recently transferred the case to the Complex Litigation Division, to which the undersigned judicial officer was also assigned. See In re Victor, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-05-CV-790 MEMORANDUM OPINION Establishment of a Complex Litig. Div., No. ST-18-MC-030, 2018 V.I. LEXIS 51, *4 (V.I. Super. Ct. May 11, 2018) (undersigned judicial officer assigned to sit in the division), approved on other grounds sub nom. In re: Amendments to the Rules. Gov. the Super. Ct. of the V.I., Prom. No. 2018 V.I. Supreme LEXIS 7, *4 (V.I. May 22, 2018). Accordingly, the undersigned judicial officer “unquestionably possesses” “the discretion to revise any interlocutory order at any time prior to entry of a final judgment.” Island Tile & Marble, LLC v. Bertrand, 57 V.I. 596, 609 (V.I. 2012) (citations omitted)). In other words, “so long as the Superior Court possesses the authority to issue an order granting or denying relief, it unquestionably possesses the authority to alter its decision prior to entry of judgment.” Id. However, just because a court has the discretion to revise its interlocutory orders at any time prior to final judgment, it does not follow that the court should always revisit every order, particularly orders issued by another judge before the case was reassigned. “One judge should not ordinarily overrule the interlocutory decision of another judge of the same court in the same case.” In re: Kelvin Manbodh Asbestos Litig. Series, SX-97-CV-324, et seq., 69 V.I. ____, ____; 2018 V.I. LEXIS 111, *62 (V.I. Super. Ct. Oct. 17, 2018) (quotation marks and citation omitted). If successor judges were to take it upon themselves to revise “every interlocutory order at any time prior to entry of a final judgment,” Island Tile & Marble, 57 V.I. at 609 (citations omitted), the entry of a final judgment may never occur. Moreover, the parties themselves have the right to alert the trial court to clear errors and changes in the law. See V.I. R. Civ. P. 6-4(b). And if “reconsideration is an extraordinary remedy not to be sought reflexively or used as a substitute for appeal,” In re: Infant Sherman, 49 V.I. 452, 458 (V.I. 2008) (quotation marks and citation omitted), it follows that trial courts generally should leave the lion’s share of the review work to the appellate court. “[E]ven ‘scholarly, well- Victor, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-05-CV-790 MEMORANDUM OPINION intended judges err. Whether with respect to substantive law, procedural issues, or abuses of discretion, judges make legal mistakes.’” Chaput v. Scafidi, 66 V.I. 160, 201 (Super. Ct. App. Div. 2017) (quoting Antoine v. Hess Oil V.I. Corp., SX-05-CV-508, 2017 V.I. LEXIS 44, *13 (V.I. Super. Ct. Mar. 10, 2017)). “Should a judge err through inadvertence or otherwise, a party's remedy is through appellate processes.” Antoine, 2017 V.I. LEXIS 44 at *13 (quotation marks and citation omitted). Nevertheless, trial courts have an affirmative duty to not intentionally commit error. See Henry v. Dennery, S. Ct. Civ. No. 2012-0130, 2013 V.I. Supreme LEXIS 4, *6 (V.I. Jan. 11, 2013) (“As we have previously emphasized, ‘it is not only the right but the duty of the Superior Court judge to refuse to intentionally commit error.’” (brackets omitted) (quoting Fontaine v. People, 56 V.I. 571, 590 n.12 (V.I. 2012))). And “[i]t is well-settled that a court has discretion to correct its own errors and spare appellate courts from the burden of unnecessary proceedings." Castillo v. St. Croix Basic Servs., Inc., SX-09-CV-299, 2010 V.I. LEXIS 141, *7-9 (V.I. Super. Ct. Feb. 9, 2010) (citing Charles v. Daley, 799 F.2d 343, 348 (7th Cir. 1986)). To reconcile these well-established rules, while still “secur[ing] the just, speedy, and inexpensive determination of every action and proceeding,” this Court concludes that one judge should only overrule the interlocutory decisions of a prior judge of the same court in the same case if allowing the prior order to stand would be unjust or cause further delay. Cf. Manbodh, 69 V.I. at ____; 2018 V.I. LEXIS 111 at *70-81 (allowing defendants to assert crossclaims and third-party for multiple plaintiffs in master case were vacated because of the uncertainty and delay). Here, proceeding against Fluor, while knowing that personal jurisdiction is lacking, could be tantamount to intentionally committing error and inviting reversal. Implicit within the establishment of a complex litigation division was the recognition of “the need for a centralized approach” to the cases assigned to the Complex Litigation Division and a Victor, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-05-CV-790 MEMORANDUM OPINION mandate that they “receive the continuous and extensive judicial management necessary to their efficient administration.” Establishment of a Complex Litig. Div., 2018 V.I. LEXIS 51 at *1, 3. A centralized approach cannot work if the same motion papers, seeking the same relief, and filed by the same parties with the same attorneys are decided differently in different, but similar, cases. This Court recently granted an identical motion in another case by Fluor to dismiss for insufficient service of process. See Hurtault v. Hess Oil V.I. Corp., SX-05-CV-791, 69 V.I. ____; 2018 V.I. LEXIS 114 (V.I. Super. Ct. Oct. 24, 2018). To proceed against Fluor in this case, but not in Hurtault, would undermine one of the core reasons for establishing the Complex Litigation Division: avoiding inconsistent rulings in similarly-situated cases. This is not to say that every decision in a case transferred to the Complex Litigation Division should be revisited. However, trial courts must assure themselves that that they have personal jurisdiction before proceeding to the merits. See Joseph v. Daily News Pub. Co., Inc., 57 V.I. 566, 580 n.4 (V.I. 2012) (“Given the jurisdictional significance of service of process, as well as the differing treatment of jurisdictional dismissals as contrasted to merits dismissals, the Superior Court is advised to rule on motions to dismiss for lack of service prior to any motions that seek to resolve the litigation on the merits.”); accord Kaplan v. Cent. Bank of the Islamic Republic of Iran, 896 F.3d 501, 510 (D.C. Cir. 2018) (“a court likewise [must] assure itself that it has personal jurisdiction before moving on to address the merits of a claim.”). “[S]ervice of process, under longstanding tradition in our system of justice, is fundamental.” Estate of Skepple v. Bank of Nova Scotia, S. Ct. Civ. NO. 2014-0050, 2018 V.I. Supreme LEXIS 24, *14 (V.I. Aug. 17, 2018) (citations omitted). Because the wrong standard was applied in this instance, the Court concludes that it must set aside the November 3, 2006 order. Once the correct standard is applied, it becomes apparent that Fluor’s Victor, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-05-CV-790 MEMORANDUM OPINION motion must be granted. Proceeding against Fluor, while knowing that service of process was not sufficient, cf. Hurtault, 69 V.I. at ___; 2018 V.I. LEXIS 114, would be tantamount to intentionally committing error. Correcting that error now might spare the parties and the appellate court the “burden of unnecessary proceedings." Castillo, 2010 V.I. LEXIS 141 at *7-9 (citation omitted). B. Motion to Dismiss for Insufficient Service of Process When the Victors filed their complaint, service of process in the Superior Court of the Virgin Islands was governed by Superior Court Rule 27, which provides that “summons and process shall be served in the same manner as required to be served by Rule 4 of the Federal Rules of Civil Procedure.” Super. Ct. R. 27(b), reprinted in V.I. Ct. Rules Ann. 26 (2006 ed.), repealed by In re: Amendments to the Rules Gov. the Super. Ct. of the V.I., ST-17-MC-019, 2017 V.I. LEXIS 60, *1 (V.I. Super. Ct. Apr. 6, 2017), as approved by S. Ct. Prom. No. 2007-005, 2017 V.I. Supreme LEXIS 23 (V.I. Apr. 7, 2017); accord In re: Catalyst Third-Party Litig., 67 V.I. 16, 24 (Super. Ct. 2015) (concluding that “service of process was insufficient under Virgin Islands Superior Court Rule 27 and Federal Rules of Civil Procedure 4(m).”). Rule 4(m) requires the plaintiff to serve the defendants within 120 days from the date the complaint is filed. “‘[S]ervice of process—unless waived by a general appearance—is a prerequisite to the Superior Court obtaining personal jurisdiction over a defendant.’” Ross v. Hodge, 58 V.I. 292, 311 n.22 (V.I. 2013) (quoting Joseph, 57 V.I. at 580 n.4). “A general appearance in a case is a waiver of process, equivalent to personal service of process, and confers jurisdiction of the person on the court; but to have this effect the appearance must have been authorized.” In re: Najawicz, 52 V.I. 311, 338 (V.I. 2009) (quotation marks, brackets, and citation omitted). However, “a client may be bound by his or her attorney's general appearance although the authority actually granted was to Victor, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-05-CV-790 MEMORANDUM OPINION make only a special appearance.” Id. (quotation marks and citation omitted). But only if the attorney did not assert the defense of lack of personal jurisdiction first, because it is “[t]he attorney's appearance without asserting the defense of lack of personal jurisdiction [that] confer[s the court’s] personal jurisdiction over his client,” id. (emphasis added) (quotation marks and citation omitted), since service of process is a prerequisite to the Superior Court obtaining personal jurisdiction over the defendant. Fluor appeared through counsel on June 19, 2006 and filed a pre-answer motion to dismiss for insufficient service of process, which preserved that defense. However, the Court denied Fluor’s motion because Fluor “failed to provide this Court with any evidence to substantiate its allegations.” (Nov. 6, 2006 Order 1.) That was in error. The majority of courts have held that “[o]nce a defense of insufficient service is raised, it is Plaintiffs' burden to prove that service was proper.” Epstein v. Fancelli Paneling, Inc., 55 V.I. 150, 157-58 (Super. Ct. 2011) (footnoted citation omitted)); accord Grajczyk v. Tasca, 717 N.W.2d 624, 631 (S.D. 2006) (“The great weight of the case law is to the effect that the party on whose behalf service has been made has the burden of establishing its validity. However, this initial burden only requires that the party establish a prima facie case: when a defendant moves to dismiss for insufficient service of process, the burden is on the plaintiff to establish a prima facie case that the service was proper.” (citations omitted)); Gross v. Sunding, 161 P.3d 380, 383 (Wash. Ct. App. 2007) (“In a challenge to personal jurisdiction based on insufficient service of process, the plaintiff has the burden of proof to establish a prima facie case of proper service.” (citation omitted)); see also Mortg. Elec. Reg. Sys., Inc. v. Patlock, 51 V.I. 917, 924 (D.V.I. 2009) (“[T]he Court will apply the general rule that ‘the party asserting the validity of service bears the burden of proof on that issue.’” (quoting Grand Entm't Group, Ltd. v. Star Media Sales, Inc., 988 Victor, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-05-CV-790 MEMORANDUM OPINION F.2d 476, 493 (3d Cir. 1993)); Howard v. Klynveld Peat Marwick Goerdeler, 977 F. Supp. 654, 658 (S.D.N.Y. 1997) (“Once a defendant challenges the sufficiency of service of process, the burden of proof is on the plaintiff to show the adequacy of service.” (quotation marks and citation omitted)). “[T]he return of service provides a prima facie case of sufficient service of process,” however. Wise v. Ludlow, 346 P.3d 1, 8 (Mont. 2015) (collecting federal and state cases). Then, “the burden shifts to the defendant to rebut the proof.” Lundahl v. Gregg, 334 P.3d 558, 562 (Wyo. 2014) (citation omitted). Contrary to Virgin Islands law, the Victors never filed proof of service. See 5 V.I.C. § 114(a)(2) (“Proof of the service of the summons and complaint or of the deposit thereof in the post office, shall be as follows . . . [i]f by any other person [than the marshal or his deputy], his affidavit thereof.”). And the letter NRAI submitted lent support to Fluor’s claim that service was insufficient. But more importantly, placing the burden on Fluor to put forth evidence to substantiate its claim was in error. Admittedly, there was no binding Virgin Islands precedent at that time regarding the burden and movants generally have the burden of proof or persuasion on their own motions. But since no return of service was filed, the burden could not have been on Fluor. Ruling to the contrary was in error. Fluor was correct. The Victors failed to effect service within 120 days from the date when “[t]he complaint . . . was filed in this Court.” (Mot. 1.) But “before a court may dismiss a complaint against a party for lack of service, it must consider whether good cause exists to extend the 120 day time limit for service.” Ross, 58 V.I. at 311 (citing Fed. R. Civ. P. 4(m)). And “[e]ven if the court finds that no good cause exists to warrant an extension, the court must at least consider whether any other factors warrant a discretionary extension.” Id. at 310-11 (citing Beachside Assocs., LLC v. Fishman, 53 V.I. 700, 717-18 (V.I. 2010).