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SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX ALBERT A EDWARDS, Plaintiff, v. HESS OIL VIRGIN ISANDS CORPORATION and HESS CORPORATION, Defendants. ) CASE NO. SX-15-CV-382 ) ) ACTION FOR DAMAGES ) ) (WRY) ) ) ) ) ) -------------------------------) Appearances: J. RUSSELL B. PATE, Esq. The Pate Law Firm P.O. Box 890 st. Thomas, VI 00804 KOREY A NELSON, Esq. Burns Charest LLP 365 Canal St., Suite 1170 New Orleans, LA 70130 WARREN T. BURNS, Esq. DANIEL H. CHAREST, Esq. Burns Charest LLP 900 Jackson St., Suite 500 Dallas, TX 75202 Attorneys for the Plaintiff BRADY, DOUGLAS A, Judge CARL A BECKSTEDT, III, Esq. Beckstedt & Associates 2162 Church St. Christiansted, VI 00820 Attorneys for the Defendantsl MEMORANDUM OPINION BEFORE THE COURT is a Motion for an Extension of Time to Answer or Otherwise Plead filed by Defendants Hess Oil Virgin Islands Corporation ("HOVIC") and Hess Corporation ("Hess") on December 15,2015. Edwards has not responded in opposition. For the reasons that follow, the Court will grant the motion and deem Defendants' answers timely filed. 1 Hess and HOVIC were represented by Sunshine S. Benoit, Esq. of Barnes & Benoit, LLP until February 13,2017, when the Court granted a December 12,2016 stipulation for substitution of counsel. Memorandum Opinion Edwards v. Hess Oil V.l Corp., et al., SX-lS-CV-382 Page 2 of8 The Court raises another issue sua sponte. On October 2, 2015, one hundred one individuals sued Hess and HOVIC in the Superior Court for asbestos-related injuries, filing complaints that were processed by the Clerk's Office as 101 new civil jury cases, each assigned a different case number, sequentially ("the 2015 cases").2 However, counsel have been filing papers in this case, Edwards, and in the 100 other cases filed the same day as Edwards, but without providing sufficient copies for the other case files. Accordingly, the Court will sua sponte order counsel to either pay the costs associated with having the Clerk's Office photocopy multiple documents 100 times for the other 100 case files, or to make sufficient copies to be placed in all the individual case files. "A prisoner's right of access to the court does not include the right ofJree unlimited access to a photocopying machine." Harrell v. Keohane, 621 F.2d 1059, 1060 (lOth Cir. 1980) (per curiam) (emphasis added). Similarly, attorneys who represent parties in the Superior Court are not be permitted to file one master document and expect the Superior Court to cover their office overhead and administrative costs by photocopying the same document multiple times for the court files for the other related cases. While it is anticipated that the advent of electronic filing in the Superior Court within the near future will minimize the inconvenience and expense to the parties and counsel, even then, counsel will be required to e-file their papers multiple times for all of the 2015 cases. Background The complaint that Albert A. Edwards filed was numbered first of the 2015 cases. Summons issued to Hess and HOVIC, but not in all 101 cases. Instead, on November 10,2015, counsel for the plaintiffs filed (and the Clerk accepted) what could best be described as a global summons. Summons issued to Hess and to HOVIC but under the caption "Albert A. Edwards, et seq., (See Exhibit A), Plaintiffs vs. Hess Oil Virgin Islands Corp., and Hess Corporation alk/a Amerada Hess Corp., Civil No. SX-15-CV-382 to 2 The Clerk's Office assigned all the 201S cases to the undersigned judge consistent with an earlier case-assignment process. On December 19,2013, Ethelbert Gomez filed a complaint in the Superior Court against Hess and HOVIC, alleging damages from exposure to asbestos. Sixty-four other plaintiffs filed identical actions that day against Hess and HOVIC ("the 2013 cases"). But, rather than filing sixty-five individual complaints, the plaintiffs filed the same complaint sixty-five times, with all sixty-five plaintiffs listed in the caption, titling their pleading "Master Complaint for 6S Individual Cases." (Compl., filed Dec. 19,2013, Gomezv. Hess Oil V.l Corp., et al., SX-13-CV-426 (previously SX-2013-TRT-00l).) Rather than assign the 6S cases to judges at random per standard procedure, the Clerk's Office instead assigned the 2013 cases as a group to the same judge, Honorable Robert A. Molloy. Similarly, on May 17,2014, Apaul Amedee filed a complaint naming Hess and HOVIC as defendants, alleging damages from exposure to asbestos. Sixty-one others joined Amedee, filing the same complaint 62 times the same day with all 62 plaintiffs listed in the caption ("the 2014 cases"). (See Compl. 1 ("Master Complaint for 62 Individual Cases"), filed May 17,2014, Amedee v. Hess Oil V.l Corp., et al., SX-14-CV-lS0).). The Clerk's Office opened 62 cases, numbering each sequentially, and assigned the 2014 cases to Honorable Harold W.L. Willocks. Subsequently, when the 201S cases were filed, the Clerk's Office, attempting to balance the caseload, assigned all to the undersigned, such that the 6S individual 2013 cases are assigned to Judge Molloy, the 62 individual 2014 cases are assigned to Judge Willocks, and the 101 individual 20 IS cases are assigned to the undersigned. Memorandum Opinion Edwards v. Hess Oil v.l. Corp., et al., SX-1S-CV-382 Page 3 of8 481 and 483." (Summons 1, filed Nov. 10,2015.) All 101 plaintiffs were listed on the attached exhibit in alphabetical order by last name, followed by their respective case numbers. The Superior Court issued a second "global" summons identical to the first on December 10,2015, but only for HOVIC. When proof of service for Hess was filed, it was filed in Edwards, but mirrored the November 10,2015 summons by listing all 2015 cases in the caption. Proof of service for HOVIC was similarly filed. Hess and HOVIC later mimicked Edwards. On December 15,2015, counsel filed notice of special appearance and a motion for an extension of time. Both the notice and the motion were captioned: "Albert A. Edwards, et. seq., Plaintiffs v. Hess Oil Virgin Islands Corp., and Hess Corporation a/k/a Amerada Hess Corp., Defendants, CIVIL NOS SX-15-CV-382-481, 483." (Defs.' Notice 1, filed Dec. 15,2015.) Edwards did not oppose Defendants' motion. However, before the Court had ruled on it, Defendants, on February 1,2016, each filed its answer to Edwards's complaint, and also the same day filed 100 answers in the other 100 cases. Discussion Motion for Extension of Time Plaintiffs served the global summonses on Hess on November 30, 2015 and on HOVIC on December 10,2015. Hess and HOVIC moved for an extension of time to answer or respond on December 15, 2015. In their motion, Defendants explained that they have "until December 30, 2015, in which to answer or otherwise file responsive pleadings to Plaintiffs' 101 complaints." (Defs.' Mot. 1, filed Dec. 15, 2015.) However, because "draft[ing] 202 Answers ... will necessarily take more time than generally allotted," id., and because their attorney was going to "be off-island" and her "office ... closed for four days" due to Christmas and local holidays, Defendants sought "an extension of30 days [or] until February 1,2016." Id. Hess and HOVIC then concluded that they had showed "[g]ood cause" and represented that "Plaintiff's [sic] counsel ... has no objection." Id. Hess and HOVIC did file their answers on February 1, 2016, without awaiting the Court's ruling on their motion for an extension of time. Superior Court Rule 10, which governed at the time Hess and HOVIC filed their motion,3 provides that "[t]he court for cause shown may at any time in its discretion ... order the period enlarged if 3 The Supreme Court of the Virgin Islands promulgated the Virgin Islands Rules of Civil Procedure on April 3, 2017. See generally In re: Adoption o/the v.l. Rules o/Civ. P., Prom No. 2017-002, 2017 V.I. Supreme LEXIS 22 (V.1. Apr. 3, 2017). The rules took effect March 31, 2017. See id. at *1-2. Pursuant to Rule 1-1, the new rules govern all civil actions pending on March 31, 2017, unless the Supreme Court declares otherwise or a Superior Court judge "makes an express finding that applying" the new rules "in a particular previously-pending action would be infeasible or would work an injustice." V.1. R. Civ. P. 1-1 (c)(2)(B). Courts have not had occasion yet to construe Rule 1-1. It is not clear whether Rule 1-1's infeasibility finding concerns the prospective or retroactive application of the rules. In this instance, it certainly is not feasible (or just) to Memorandum Opinion Edwards v. Hess Oil v.l. Corp., et al. , SX-15-CV-382 Page 4 of8 application ... is made before" the specified period has passed. Super. Ct. R. 10(a)(1). 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." Super. Ct. R. 10(a)(2). "The Supreme Court of the Virgin Islands has established that in this jurisdiction excusable neglect is essentially synonymous with good cause." McGary v. J8. Carambola, L.L.P., SX-13-CV-289, 2016 V.I. LEXlS 166, *4 (V.I. Super. Ct. Oct. 7,2016) (citing Fuller v. Browne, 59 V.I. 948, 955 (V.I. 2013)). Here, Hess and HOVlC only had to show cause, not good cause, because they asked for more time before the time to answer had expired. Hess was served on November 30, 2015 by first-class mail, return-receipt requested, sent to Wilmington, Delaware, whereas HOVlC was served personally on St. Croix on December 10, 2015 through Sunshine S. Benoit, Esq., its registered agent at the time. The Superior Court's standard summons at the time stated: The defendant, if served personally, is required to file his answer or other defense with the Clerk of this Court, and to serve a copy thereof upon the attorney for the plaintiff within twenty (20) days after service of the summons, excluding the date of service. The defendant, if served by publication or by service outside side of the jurisdiction pursuant to 5 V.I.C. § 4911, is required to file his answer or other defense with the Clerk of this Court, and to serve a copy thereof upon the attorney for the plaintiff within thirty (30) days after the completion of service outside of the jurisdiction. (Summons: Hess Corporation 1, filed Nov. 10,2015.) Section 4911(a)(3) of title 4 of the Virgin Islands Code declares that "[w]hen the law of this territory authorizes service outside this territory, the service, when reasonably calculated to give actual notice, may be made ... by any form of mail addressed to the person to be served and requiring a signed receipt." Section 112 of title 5 provides further that, "[i]n case of personal service out of the Virgin Islands the defendant shall appear and answer within thirty days from pretend that Hess and HOVIC filed their December 15,2015 motion for an extension of time pursuant to Virgin Islands Rule of Civil Procedure 6(b)(1), the corollary to Superior Rule 10(a), when the rule did not exist at that time. So, rather 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. Cj Webster v. FirstBank P.R., _ V.1. --' _ n.3 2017 V.1. Supreme LEXIS 24, *8 n.3 (V.1. Apr. 24, 2017) ("[T]he Virgin Islands Rules of Civil Procedure ... went into effect on March 31, 2017 ... [but] we continue to apply the former procedural rules on appeal because the final judgment in this case was entered before that date." (citing Blyden v. People, 53 V.1. 637, 658 n.15 (V.1. 2010» . In some instances, the difference may be insignificant, e.g., applying Virgin Islands Rule of Civil Procedure 56, rather than Federal Rule of Civil Procedure 56 via Superior Court Rule 7, and not make a difference. But here, it would be significant because Virgin Islands Rule of Civil Procedure 6(b)(1) is both more forgiving and more strict than Superior Court Rule 10(a). Rule 6(b)(1) gives courts discretion to consider a number of factors when ruling on motions for an extension of time, only one of which is whether the motion was "made before or after the required date." Further, all motions for an extension of time must now be based "upon a showing of good cause or excusable neglect,'1 V.I. R. Civ. P. 6(bXl), whereas Superior Court Rule 10 only required that "cause" (not good cause) be shown if an "application" was timely. Super. Ct. R. lO(a)(I). Because applying Virgin Islands Rule of Civil Procedure 6(b)(l) retroactively might be unjust-by changing the movant's burden after the motion was filed- the Court will apply Superior Court Rule 10. Memorandum Opinion Edwards v. Hess Oil VI. Corp., et 01., SX-15-CV-382 Page 5 of8 date of service." 5 V.I.C. § 112(d). Since HOVIC was served personally, it had twenty days, or until December 30,2015, to answer or otherwise plead, while Hess, served by mail outside the Territory, had thirty days, also until December 30,2015. Their motion, filed December 15,2015, was filed "before the period originally prescribed." Super. Ct. R. 10(a)(1). They did not have to show good cause or excusable neglect, only cause. This distinction is dispositive here. While "[t]he determination of excusable neglect is at bottom an equitable one, where the court should take into account all relevant circumstances," Fuller, 59 V.1. at 955 (quotation marks and citation omitted), courts in the Virgin Islands have consistently held that '''a busy schedule of counsel, by itself, does not establish excusable neglect.'" Barshinger v. Legislature of the V.I of the us., ST -11-CV -024, 2014 V.1. LEXIS 99, *7 (V.I. Super. Ct. Nov. 10,2014) (footnote omitted) (unreported) (quoting People v. Rivera, 54 V.1. 116, 124 (V.1. Super. Ct. 2010». "A moving party must show more than merely being 'too busy' to have responded." GRS Dev. Co. v. Jarrett, 45 V.1. 211, 216 (V.1. Terr. Ct. 2003 (citing Kan. Packing Co. v. Lavilla, 39 V.1. 71 (V.1. Terr. Ct. 1998». However, "the fact that an attorney is busy on other matters may qualify as cause shown," even though "it does not fall within the definition of' excusable neglect.'" Kan. Packing Co., 39 V.1. at 76 (citing Pedereaux v. Doe, 21 V.1. 63 (D.V.I. 1984) (other citations omitted»; accord Hills v. Whitecap Inv. Corp., ST-12-CV-395, 2016 V.1. LEXIS 11, *6 & n.9 (V.I. Super. Ct. Feb. 8, 2016) ("The Court reminds Plaintiffs' attorney that a moving party must show more than merely being too busy to have responded to establish excusable neglect." (quotation marks, bracket, and citation footnote omitted». Here, Hess and HOVIC might not have shown good cause, because busy schedules and travel plans cannot satisfy that standard. But they did not have to show good cause. They only had to show cause, and drafting over two hundred answers, upcoming holidays, and previously scheduled travel plans constitutes a showing of cause under Superior Court Rule 10(a). The Court will grant the motion and deem the February 1, 2016 answers timely, notwithstanding that Hess and HOVIC went ahead and filed them before the Court ruled on their motion.4 4 Courts 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. Courts in other jurisdictions strongly disapprove of the practice. See, e.g., Microso/tCorp. v. Source Sys., Inc., 5: 13-cv-246, 2013 U.S. Dist. LEXIS 41003, *6 (N.D. Ohio Mar. 12,2013) (await decision before filing) ("[Tlhe Court deems the filing of defendants' answer as filed with leave, but counsel is cautioned that, in the future, when seeking leave of the Court for an extension of time, he should await a ruling from the Court on such a motion prior to filing the subject document."); accord Bentley v. Grey Fox Homes, Ltd., 920 N.E.2d 438,441 (Ohio Ct. App. 2009) ("Young would have been in violation of the Civil Rules ifhe had retained counsel and filed an answer without leave of court after December 17, 2008. Therefore, it was not unreasonable for him to await a ruling on his motion for an extension of time before proceeding. Had he done otherwise, any answer he filed would have been wlnerable to being stricken."). But our courts must ask what is the soundest rule for the Virgin Islands. Cj Antilles School, Inc. v. Lembach, 64 V.1. 400, 428 (V.1. 2016) (rejecting "[r]emittitur [a]s a procedural device" for the Virgin Islands" (citing, inter alia, Gov'{ Memorandum Opinion Edwards v. Hess Oil v.l. Corp., et al., SX-15-CV-382 Page 6 of8 Mass Filings One hundred and one individuals sued Hess and HOVIC on October 20,2015. The Clerk's Office opened 101 cases and assigned each case a different number. The first case numbered by the Clerk's Office was Edwards. This may be the reason why counsel proceed as if Edwards were the de facto lead case and filed notices, summons, and motions in Edwards while also listing the other 100 case numbers in the caption. But Edwards is not the lead case. Designating one case to serve as a lead case is for the court to decide, not counsel. Cf Ayala v. Lockheed Martin Corp., SX-08-CV-296, 2017 V.I. LEXIS 39, *32 (V.I. Super. Ct. Mar. 3,2017) ("Designating one of the Alumina Dust Claims cases to serve as the lead case would allow the Court to economize its efforts." (emphasis added)). Counsel can be heard on which case should be chosen as the lead case. But that has not happened yet. So, there was no justification here for treating Edwards as though it were a lead case and thereby circumventing standard protocol for filing papers in different cases. Court papers are deemed filed in every case listed in the caption. Here, counsel intended to file their papers, not only in Edwards, the only case listed fully in the caption, but also in all the other 2015 cases. By listing the range of case numbers in the caption, notwithstanding that none of the other cases were cited by name, counsel intended to file their papers in every one of the 2015 cases. But neither Plaintiffs nor Defendants filed 101 originals or even one original and 100 copies. Instead, both sides submitted one original and no copies. By submitting one copy of each paper, counsel apparently sought of the V.l v. Connor, 60 V.1. 597, 600 (V.1. 2014) (per curiam)}. Considering the number of cases pending in the Superior Court, see, e.g., Fahie v. People, _ F.3d ---J 2017 U.S. App. LEXIS 9018, ·10 n.6 (3d Cir. May 24, 2017) ("there are currently 6,000 pending cases [in the Superior Court of the Virgin Islands], each taking on average 10 years for adjudication"), and given the number of judicial officers, five Superior Court judges and two Superior Court magistrate judges in each district, it 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 question is raised here, but the Court declines to decide it because the plaintiffs have not objected and the result- if the Court followed Bentley, for example, and struck all 202 answers- would be the same. Hess and HOVIC showed cause for an extension of time. If they had not filed their answers, the Court would give them a deadline to do so now. But since they proceeded as if their motion were granted, striking the answers would just cause further delay and increase expense. "When a trial court takes actions that exceed the scope of its jurisdiction ... the decision to deny those proceedings legal effect 'is grounded not in metaphysical notions ... but on practical considerations concerning efficient judicial administration .... Hansen v. O'Reilly, 62 V.1. 494, 510 (V.1. 2015) (quoting Harvey v. Christopher, 55 V.1. 565, 569 n.2 (V.1. 2011». The same considerations are in play when the parties (or their attorneys) take action without leave of court. Accord id at 510-11 ("[D]eclaring all Superior Court proceedings ... a nullity, and in effect directing the Superior Court to hold a new trial and issue a new decision based on that trial ... would serve absolutely no purpose other than additional expense and delay, since almost certainly the parties would produce the same evidence and the Superior Court would issue the same decision based on that evidence.") Hess and HOVIC would certainly re-file the same answers. So, the Court exercises its discretion in favor of deeming Defendants' answers timely, even though they were technically filed without leave. Accord Harvey, 55 V.1. at 569 n.2 (noting the better practice is for trial courts to give notice of an intended action but also that appellate courts can overlook technical errors that, if corrected, "would bring about the same result and serve no purpose other than additional delay and expense."). Memorandum Opinion Edwards v. Hess Oil V.l Corp., et ai., SX-15-CV-382 Page 7 of8 to trim their own costs, leaving it to the Clerk's Office or Superior Court staff to make sufficient copies of the filings for the other case files. "To this all we can concede is, 'nice try. '" Liberty Mut. Ins. Co. v. Altfillisch Constr. Co., 139 Cal. Rptr. 91, 94 (Ct. App. 1977). Such a shifting of this administrative burden and associated costs is unacceptable. "[I]t is not the responsibility of the clerk's office to correct papers that are filed with the court," Cagenello v. Town o/Lebanon, CV105014040, 2010 Conn. Super. LEXIS 2873, *2-3 (Nov. 3,2010), "to correct filing mistakes" in those papers, Naug v. Colvin, 14-cv-818, 2016 U.S. Dist. LEXIS 45209, *8 (W.D. Wis. Apr. 4, 2016), or "to make copies of ... papers and serve them on the [other parties]." Raison v. Russi, No. 99-0044, 1999 U.S. App. LEXIS 20944, 85 (2d Cir. Sept. 1, 1999). But cf Nast v. Michels, 730 P .2d 54, 59 (Wis. 1986) ("There is a common law right to make photocopies of court case files. The right to photocopy court case files would be impermissibly restricted if the only machines available for copying such files charged an excessive fee." (internal citations omitted». Likewise, it is not the responsibility of the Clerk's Office to make sufficient copies of papers filed in multiple cases. Any concerns that might have arisen from the "global" summons Plaintiffs submitted and the Clerk issued are moot because Hess and HOVIC appeared and "[a] voluntary appearance of the defendant shall be equivalent to personal service of the summons upon him." 5 V.I.C. § 115. The concern now is a practical one. The Superior Court is still some months away from the transition to electronic filing. Counsel have submitted sufficient copies for only one of the 2015 cases. However, because their papers were filed in all 101 cases, copies must be made. Superior Court Rule 6c directs that "[ a] fee of $1.00 per page shall be charged for copying a document." Plaintiffs have submitted the following "mass" filings: (1) waiver of the service of summons (three pages, filed October 30, 2015): (2) summons for Hess (four pages, filed November 10, 2015); (3) summons for HOVIC (four pages, filed November 10,2015); (4) summons for HOVIC (five pages, filed December 10, 2015); (5) notice of service of process on Hess Corporation (seven pages, filed December 10,2015); and (6) affidavit of process server (six pages, filed January 13, 2016). Defendants have submitted the following "mass" filings: (1) notice of special appearance (two pages, filed December 15, 2015) and (2) motion for an extension of time to answer or otherwise plead (two pages, filed December 15, 2015). The total number of pages for Plaintiffs' mass filings is 2,900 = 29 pages x 100 individual cases. At $1.00 a page, the total copying cost is $2,900.00. The total number of pages for Defendants' mass filings is 400 pages = 4 pages x 100 individual cases. At $1.00 a page, the total cost is $400.00. Memorandum Opinion Edwards v. Hess Oil V,l Corp., et al., SX-lS-CV-382 Page 8 of8 The Court will grant each side the same option: to submit the necessary copying fees and allow the Clerk's Office to make copies for all the 2015 cases individual files; or to submit 100 copies of each of those referenced papers already filed. 5 Cf In re: Cases Removed to the Dist. Ct. of the V.l, SX-98-CV- 109 et seq., 2016 V.1. LEXIS 154, *10 (V.1. Super. Ct. Sept. 21, 2016) (discussing instance where administrative judge rejected improper joinder of multiple plaintiffs as an attempt to avoid paying the required filing fees) (citations omitted). From time to time, courts make copies of papers for counsel as a courtesy. But counsel's filings here, relying upon the Superior Court to absorb the parties' costs and administrative burden, are unacceptable. Conclusion For the reasons given above, Hess and HOVIC showed cause for extending the time for them to file their answers. Accordingly, their December 15,2015 motion will be granted and their answers deemed timely. However, the Court will not excuse both sides' failure to submit sufficient copies of papers filed in 101 individual cases of the 2015 cases. Counsel have the option to pay the Superior Court to make the copies or make the copies themselves and submit them to the Clerk's Offi~e to be placed in each individual case file. An order consistent with this opinion follows. Dated: June ~017. A TTESW: t'" ~J } ... , ~ lft J ESTRBr.:t H.'@EORGE Cler.k of ~ By: " , 5 If counsel do not have copies reflecting the Superior Court's date and time stamp, they can obtain one copy of each document from the Clerk's Office and submit ninety-nine copies.