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FOR OFFICIAL PUBLICATION SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX CLAUDE THEODULE; JOHN & ROSALINE ST. ROSE; and GEORGE & BLONDELLE LOUISON, 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-04-CV-604 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 1 Because associations have changed over the years, current firm associations are listed as well as counsel who regularly represent the same parties in other cases, notwithstanding counsel’s failure to withdraw or file a notice of appearance. Theodule, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-04-CV-604 MEMORANDUM OPINION W. MARK WILCZYNSKI, ESQ. Law Office of W. Mark Wilczynkski, P.C. 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 Ingersoll Rand Corporation MEMORANDUM OPINION MOLLOY, Judge THIS MATTER is before the Court following reassignment by the Presiding Judge of the Superior Court. Having reviewed the file, the Court issues this opinion to alert the parties to the Theodule, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-04-CV-604 MEMORANDUM OPINION following issues that must be addressed and direct counsel to advise whether this matter is still pending and, if so, why the Plaintiffs’ claims should not be severed. I. PROCEDURAL BACKGROUND2 Plaintiffs Claude Theodule (“Theodule”), John and Rosaline St. Rose (“the St. Roses”), and George and Blondelle Louison (“the Louisons”) (collectively “Plaintiffs” or “workers” or “spouses”) jointly filed a complaint in the Superior Court of the Virgin Islands3 on October 29, 2004 through Lee J. Rohn, Esq. (“Attorney Rohn”) and Theodore Huge, Esq. (“Attorney Huge”). The workers alleged they were exposed to silica dust while employed at the St. Croix oil refinery, previously owned and operated by Hess Oil Virgin Islands Corporation (“HOVIC”). The spouses alleged loss of consortium. The Clerk’s Office processed the Plaintiffs’ complaint on November 3, 2004 and assigned it to a judge. The following defendants appeared and answered the complaint: Riggers & Erectors International, Inc. (“R&E”) on January 25, 2005; Raritan Supply Company on February 7, 2005; Defendant 3M on February 10, 2005;4 Amerada Hess Corporation (“Hess”), HOVIC, and HOVENSA, LLC (collectively “the Hess Defendants”) jointly on February 15, 2005; and Ingersoll- Rand Company February 22, 2005. Clemco Industries appeared on February 1, 2005 but did not answer the complaint. Instead, Clemco filed a motion to dismiss for lack of personal jurisdiction, which Plaintiffs opposed on February 15, 2005. After an agreed-upon extension of time. Clemco filed its reply on March 7, 2005. 2 Summarizing the procedural history of this matter reads somewhat disjointedly because of the stops and starts over the life of the case. Hence, the Court takes a somewhat informal approach to paragraph structuring. 3 The Territorial Court of the Virgin Islands at that time. 4 3M filed a document titled “Answer and Amended Affirmative Defenses.” If an answer was filed prior to the “amended” version, the Court’s copy was misplaced. Theodule, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-04-CV-604 MEMORANDUM OPINION In the interim. the Hess Defendants moved, on February 18, 2005, to sever the Plaintiffs’ claims. The Hess Defendants argued that the workers “worked for different employers,” “performed different jobs,” and “have distinct medical histories,” (Hess Defs.’ Mot. to Sever 2, filed Feb. 18, 2005.) Plaintiffs improperly joined together, the Hess Defendants argued, in violation of “‘the Alexander Order.’” Id. at 4 (citing Order, entered Dec. 12, 1997, Alexander, et al. v. HOVIC, et al., Civ. No. 323/1997, et seq. (V.I. Terr. Ct.)); see also Alexander v. HOVIC, 1998 V.I. LEXIS 36 (V.I. Terr. Ct. Jan. 23, 1998) (denying reconsideration of “the Alexander Order”). “The Alexander Order is consistent with the practice in other courts,” the Hess Defendants asserted. (Hess Defs.’ Mot. to Sever 4-5 (citing Simmons v. Wyeth Labs., CIV.A.96-CV-6631, 1996 WL 617492 (E.D. Pa. Oct. 24, 1996); In re: Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Prod. Liab. Litig., Civ.A.04- 20099, 2004 WL 2095451 (E.D. Pa. Sept. 20, 2004); Aaberg v. ACandS, Inc., 152 F.R.D. 498 (D. Md. 1994); 7 Charles Alan Wright, et al., Federal Practice & Procedure § 1689 (3d ed. 2001)).) Therefore, the Court should sever the St. Roses and the Louisons and order them each to “re-file a separate action.” Id. at 5. Ingersoll-Rand Company joined in the motion to sever on March 1, 2005. Plaintiffs opposed on March 4, 2005. By orders dated March 9, 2005, entered March 10, 2005, the Court (Ross, J.) denied the Hess Defendants’ motion “at this juncture.” The Court also withheld ruling on Clemco’s motion to dismiss, granting the Plaintiffs leave to conduct jurisdictional discovery. The next month, the Plaintiffs moved for leave to file an amended complaint, which the Court granted by order dated and entered April 19, 2005. However, because the Plaintiffs did not comply with the District Court of the Virgin Islands’ Local Rule of Civil Procedure 15.1, as applied through Superior Court Rule 7, and delineate the changes in their proposed amended complaint, the Hess Defendants, on April 28, 2005, filed a motion for reconsideration of the April 19, 2005 order. Yet, Theodule, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-04-CV-604 MEMORANDUM OPINION notwithstanding that their reconsideration motion was still pending, the Hess Defendants, on May 4, 2005, jointly answered the first amended complaint. Within that second answer, HOVIC also asserted the following crossclaims: common law contribution (count one), common law indemnification (count two), and contractual indemnification (count three) against Raritan, 3M, and Clemco; breach of contract for failure to insure (count four) against Raritan and 3M; and breach of contract for failure to name HOVIC as an additional insured (count five) against Raritan. Other defendants also answered the amended complaint as well: Clemco on May 6, 2005, followed by R&E on May 10, 2005, Raritan on May 17, 2005, and 3M on June 16, 2005, Raritan further crossclaimed against the Hess Defendants and Litwin Corporation on October 21, 2005.5 The Hess Defendants answered Raritan’s crossclaim on October 25, 2005, followed by Litwin on November 4, 2005. Meanwhile, after moving for reconsideration, but before answering the amended complaint, the Hess Defendants moved to disqualify Attorney Rohn on May 6, 2005. Plaintiffs responded in opposition on May 27, 2005 and the Hess Defendants replied in support on June 3, 2005. By memorandum opinion and order entered November 2, 2005, the Court (Ross, J.) granted the Hess Defendants’ motions to disqualify but ordered “the instant action . . . stayed for thirty (30) days . . . so that Plaintiffs may retain substitute counsel.” Theodule v. Hess Oil V.I. Corp., SX-04-CV-604, 2005 V.I. LEXIS 39, *4-5 (V.I. Super. Ct. Oct. 31, 2005). Also, by order dated October 31, 2005, entered November 2, 2005, the Court granted the Hess Defendants’ reconsideration motion, even though several defendants had answered the amended complaint by then and asserted crossclaims within 5 Litwin initially moved to quash summons on July 21, 2005, which Plaintiffs opposed on July 15, 2005 (the motion was received after the opposition). However, the Court denied Litwin’s motion by order October 31, 2005, entered November 2, 2005. Theodule, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-04-CV-604 MEMORANDUM OPINION their answers to the amended complaint. The Court ordered the Plaintiffs to file a revised amended complaint within fifteen days. Plaintiffs never complied. After getting Attorney Rohn disqualified, the Hess Defendant next moved, on December 6, 2005, to disqualify Attorney Huge and the law firm he was associated with, Motley Rice, LLC, arguing that Attorney Rohn’s disqualification should be imputed both to Motley Rice and to Attorney Huge. Attorney Huge opposed the motion on December 27, 2005, after the Court granted an extension of time over the Hess Defendants’ opposition. The Hess Defendants, themselves, requested an extension of time on January 3, 2006, to file their reply and then filed their reply on January 9, 2006 before their motion was ruled on. Both the motion for an extension of time and the motion to disqualify Attorney Huge and Motley Rice are still pending. Meanwhile, on December 8, 2005, Attorney Rohn moved for reconsideration of the October 31, 2005 memorandum opinion and order, which was opposed by the Hess Defendants the very same day. Attorney Rohn never filed a reply to the Hess Defendants’ opposition. By memorandum opinion and order entered September 8, 2006, the Court (Brady, J.) denied Attorney Rohn’s reconsideration motion, finding no clear error or manifest injustice in the earlier disqualification ruling. See Theodule v. Hess Oil V.I. Corp., SX-04-CV-604, 2006 V.I. LEXIS 45 (V.I. Super. Ct. Sept. 5, 2006). After getting Attorney Rohn disqualified, but before her reconsideration motion had been denied, and even though their motion to disqualify Attorney Huge and Motley Rice was still pending, the Hess Defendants, on June 1, 2006, filed a motion to dismiss the Plaintiffs’ complaint for failure to prosecute. The Plaintiffs (through Attorney Huge) opposed the motion on June 21, 2006. The Hess Defendants replied in support on June 23, 2006, as corrected on June 26, 2006, and included within Theodule, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-04-CV-604 MEMORANDUM OPINION their reply, a motion to strike the Plaintiffs’ opposition. Both the motion to dismiss for failure to prosecute and the motion to strike are still pending. As noted, the Court denied Attorney Rohn’s reconsideration motion on September 5, 2006. Subsequently, the Plaintiffs, through Attorney Hugh, filed a notice of voluntary dismissal on September 14, 2006 of Clemco Industries (as amended on October 4, 2006), noting that Clemco had not answered or filed a motion for summary judgment. Plaintiffs’ notice did not speak to the Hess Defendants’ pending crossclaims against Clemco. Then, on September 19, 2006, the Hess Defendants filed a motion to stay further proceedings pending a ruling on their December 6, 2005 motion to disqualify Attorney Huge and Motley Rice. That motion is still pending. Next, on September 29, 2006, the Plaintiffs and Raritan filed a stipulation of dismissal without prejudice. However, the stipulation did not speak to Raritan’s crossclaims against the Hess Defendants and Litwin or HOVIC’s crossclaims against Raritan. Finally, on October 3, 2006, the Plaintiffs and Hess Defendants filed a stipulation for dismissal without prejudice. However, the Hess Defendants did not address whether they were also dismissing their crossclaims against Raritan, Clemco, and 3M. Although the Plaintiffs and the Hess Defendants had just given notice ten days earlier that they had “amicably adjusted” their differences, (Vol. Dism. 1, filed Oct. 3, 2006), the Plaintiffs and the Hess Defendants, on October 13, 2006, stipulated that the Hess Defendants could have an extension of time to file their reply in support of their motion to stay pending a decision on the motion to disqualify Attorney Huge and Motley Rice. If the Plaintiffs filed an opposition to that motion, neither the Court’s case file nor its internal electronic docket show when it was filed. Lastly, on November 9, 2006, the Plaintiffs and Litwin filed a stipulation for dismissal without prejudice as to Litwin individually and as successor to Litwin Pan-American Corporation, but with Theodule, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-04-CV-604 MEMORANDUM OPINION “no effect on the remaining Defendants.” (Stip. 1, field Nov. 9, 2006.) Two weeks later, on November 27, 2006, the Plaintiffs and 3M filed a stipulation for dismissal without prejudice. The stipulation did not speak to the Hess Defendants’ crossclaims, however. By orders dated March 1, 2007 and March 5, 2007, the Court (Brady, J.) approved the stipulations for dismissal by and between the Plaintiffs and Raritan, the Plaintiffs and 3M, the Plaintiffs and R&E, the Plaintiffs and Litwin, and the Plaintiffs and the Hess Defendants. For reasons unclear from the record, three years later, on January 8, 2010, Litwin filed a notice of production to alert the parties that it may have documents within its possession that “may be relevant to this cause of action.” (Litwin’s Not. of Production 1, filed Jan. 8, 2010.) On August 24, 2010, R&E filed a stipulation for substitution of counsel, which is still pending. Finally, on February 3, 2011, Motley Rice, through Elizabeth Ward, Esq., filed a motion to withdraw as counsel for the Plaintiffs. Motley Rice explained that Attorney Huge was no longer associated with the firm and the firm did not have another attorney barred in the Virgin Islands. Consequently, Motley Rice was compelled to withdraw. Motley Rice’s motion is still pending. By order dated August 30, 2018, the Presiding Judge of the Superior Court reassigned this case to the undersigned judicial officer in furtherance of the establishment of a Complex Litigation Division within the Superior Court of the Virgin Islands. The August 30, 2018 Order specifically cautioned, however, that “if the claims of some or all parties (including any counterclaims and/or third-party claims) have been fully resolved, settled, or dismissed by and between all parties, then this Order shall not operate to reinstate such individual claim(s), but shall instead have internal administrative effect only.” (Order 1, dated Aug. 30, 2018.) Theodule, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-04-CV-604 MEMORANDUM OPINION II. DISCUSSION The Court begins its analysis with the following premises. First, orders that adjudicate “only the plaintiff’s claims against the defendant” without also “adjudicat[ing all other pending] . . . counterclaim[s], cross-claim[s], or third-party claim[s]” are non-final orders. Davis v. Allied Mortg. Capital Corp., 53 V.I. 490, 498 (V.I. 2010) (quotation marks and citations omitted). Thus, when counterclaims, crossclaims, and third-party claims are filed, the action remains pending, notwithstanding the termination of the plaintiff’s case, unless resolution of the “primary action render[s]” the other claims in the case “moot” or “procedural or jurisdictional defects” preclude the other claims from being properly before the court. Id. at 499 (citations omitted); accord Aluminum Co. of Am. v. Beazer E., Inc., 124 F.3d 551, 557 (3d Cir. 1997) (“[T]there is no final order if claims remain unresolved and their resolution is to occur in the district court. This is equally true whether the unresolved claim was asserted in the plaintiff's complaint, or was pleaded as a counterclaim, or a cross-claim.” (citations omitted)). Second, “the common law confers trial courts with 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). In other words, if a case is still pending, the Court may revisit any prior order in the case. Third, “all motions remain pending ‘until ruled upon, dismissed, or withdrawn.’” Mitchell v. Gen. Eng'g Corp., 67 V.I. 271, 277 (Super. Ct. 2017) (quoting Der Weer v. Hess Oil V.I. Corp., 60 V.I. 91, 98 (Super. Ct. 2014)). But motions “can also be deemed withdrawn based on certain actions or inactions of the party who filed the motion.” Mitchell, 67 V.I. at 278 (collecting cases). However, “[w]hen other parties join a motion that motion remains pending as to all parties who joined even Theodule, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-04-CV-604 MEMORANDUM OPINION if the party who originally filed the motion is later dismissed or . . . withdraw[s] the motion.” Der Weer, 60 V.I. at 100 (citations omitted). And finally, “[w]hen court approval is required, a stipulation is akin to a motion and remains pending until ruled on, withdrawn, or dismissed.” Paul v. Raritan Supply Co., SX-97-CV-329, 2017 V.I. LEXIS 106, *10 (V.I. Super. Ct. July 13, 2017). A. Status of the First-Party Litigation First, the Court finds that it must vacate the October 31, 2005 order granting the Hess Defendants’ reconsideration motion and ordering the Plaintiffs to file a revised first-amended complaint. Two reasons support this conclusion. First, while the Hess Defendants did move for reconsideration on April 28, 2005, they also filed an answer on May 4, 2005. Moreover, the other defendants, namely Clemco, R&E, Raritan, and 3M, answered the amended complaint as well. This all occurred long before the October 31, 2005 order was issued. Second, both Raritan and HOVIC filed crossclaims within their answers before the October 31, 2005 order issued. Only Litwin’s answer to Raritan’s crossclaim came afterward. If the first-amended complaint is not properly before the Court, neither are the crossclaims. To strike them all now and order them refiled would be inefficient. Accordingly, the Court finds that the Hess Defendants withdrew their April 28, 2005 motion for reconsideration by answering the Plaintiffs’ first-amended complaint. To avoid confusion, the Court will vacate the October 31, 2005 Order, which will reinstate the first-amended complaint. Cf. Mitchell, 57 V.I. at 277 (“A motion withdrawn leaves the record as it stood prior to the filing of the motion, i.e., as though it had not been made.” (quotation marks and citation omitted)). Second, the Plaintiffs sued ten defendants—the Hess Defendants, Litwin in its individual and successor capacities, Fluor Engineers & Constructors, Inc. (“Fluor”), R&E, Raritan in its individual Theodule, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-04-CV-604 MEMORANDUM OPINION and successor capacities, 3M, Clemco, Ingersoll Rand—and several companies referred to only as John Doe defendants. All but Fluor appeared in this case and answered or filed pre-answer motions. Fluor did not appear, and proof of service was never filed for Fluor. If the Plaintiffs never served Fluor, the Court may have to dismiss for failure to timely serve. See V.I. R. Civ. P. 4(m) (“If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.”). Third, while Territorial Court (later Superior Court) Rule 26 authorized the issuance of process against defendants whose true names are unknown, the plaintiff, in the complaint, has to “designat[e] him by a fictitious name and giv[e] an appropriate description of defendant sufficient to identify him.” Super. Ct. R. 26 (emphasis added), reprinted in V.I. Ct. Rules Ann. 25 (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 V.I. R. Civ. P. 8-1 (current rule). In their first-amended complaint, the Plaintiffs characterized all John Doe defendants generally as “unknown companies which supplied or manufactured sand or sandblasting equipment to work sites in St. Croix at which the Plaintiff workers worked and were exposed to silica dust,” (First-Amend. Comp. ¶20), and “John Doe Respiratory Defendants” as “unknown companies which supplied or manufactured products commonly known as dust masks, cartridge respirators, air-fed hoods and non air-fed hoods.” Id. In fourteen years, none of these “unknown companies” have been named. Failure to identify these defendants precludes the entry of final judgment. See V.I. R. Civ. P. 8-1 (“Thereafter, and prior to Theodule, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-04-CV-604 MEMORANDUM OPINION entry of judgment, on motion and notice to the defendant the proceedings shall be amended to set forth the true name of the defendant. No such amendment shall be ordered unless an affidavit shall be filed showing how the true name of the defendant was obtained, and no final judgment shall be entered until such order has been made.”). The Plaintiffs must either voluntarily dismiss their claims against the John Does or seek leave to amend. See id. (“[O]n motion and notice.”); accord Der Weer v. Hess Oil V.I. Corp., SX-2005-CV-274, 2014 V.I. LEXIS 50, *10-11 (V.I. Super. Ct. Feb. 21, 2014) (“While Rule 26 allows for the use of fictitious names when a ‘defendant's true name is unknown,’ 'no final judgment shall be entered’ until the third-party complaint is ‘amended to set forth the true name’ of the third-party defendant. Because Litwin's failure to state the true names of Third-Party Defendants John Doe 1 through 4 will preclude the Court from entering final judgment, Litwin must take appropriate steps to amend its Third-Party Complaint prior to this matter coming on for Final Pretrial Conference.” (quoting Super. Ct. R. 26)). Fourth, the Hess Defendants’ motion to disqualify Attorney Huge and Motley Rice is technically still pending because they never withdrew it and the Court has not yet ruled on it. However, “[a] motion [can] become moot when something occurs after a motion is filed that resolves the issues raised in that motion.” Der Weer, 60 V.I. at 98-99 (citations omitted). Here, the Hess Defendants’ motion to disqualify Attorney Huge and Motley Rice was based on an earlier motion to disqualify Attorney Rohn. The Hess Defendants asserted that HOVIC and Hess’ former law firm “Bryant & Associations employed [Attorney] Rohn from 1985 until 1987, during which time Rohn represented HOVIC and Amerada Hess.” Theodule, 2005 V.I. LEXIS 39 at *1-2. Attorney “Rohn defended HOVIC and Amerada Hess in toxic tort cases involving exposure to asbestos at the Hess oil refinery and various negligence claims relating thereto.” Id. at *2 (footnote omitted). Since Theodule, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-04-CV-604 MEMORANDUM OPINION Attorney Rohn was disqualified, her disqualification should be imputed to Attorney Huge and Motley Rice, the Hess Defendants contend. However, after they filed their second disqualification motion, the Hess Defendants settled with the Plaintiffs. Furthermore, Motley Rice has moved to withdraw as counsel for Plaintiffs. It appears, therefore, that the Court can deny the second disqualification motion as moot. However, the Hess Defendants must advise the Court whether, notwithstanding that their crossclaims are pending, the Plaintiffs’ voluntary dismissal as to them and Motley Rice’s motion to withdraw does, in fact, moot their disqualification motion as to Attorney Huge. Finally, assuming the Plaintiffs will go forward against Fluor and the John Doe Defendants, they must also address why the Court should not sever their claims as the Hess Defendants had argued. Although the Court did deny the motion to sever, the Court also prefaced its denial by finding that severance was “at this juncture” unnecessary. Nevertheless, the Hess Defendants were correct in that the “Alexander Order,” as they called it, is now standard practice within the Superior Court of the Virgin Islands. Cf. Abednego v. St. Croix Alumina, LLC, 63 V.I. 153, 192-93 (Super. Ct. 2015) (severing approximately 2,800 plaintiffs and ordering them to refile individual complaints); Alleyne v. Diageo USVI, Inc., No. SX-13-CV-143, 69 V.I. ___, ____; 2018 V.I. LEXIS 92, *19- 44 (V.I. Super. Ct. Sept. 10, 2018) (severing 155 plaintiffs and ordering them to refile individual complaints); accord In re: Kelvin Manbodh Asbestos Litig. Series, No. SX-97-CV-324, 69 V.I. ___, ____; 2018 V.I. LEXIS 111, *70-81 (V.I. Super. Ct. Oct. 17, 2018) (severing third-party claims from master case and ordering them refiled in individual first-party cases). But severance might be unnecessary if the Plaintiffs cannot or will not go forward on their claims and likewise if the Defendants do not intend to go forward on their crossclaims. It is for them to advise the Court, however. Theodule, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-04-CV-604 MEMORANDUM OPINION B. Status of the Second-Party Litigation Having reviewed HOVIC and Raritan’s crossclaims, the Court finds that the second-party litigation is still pending.6 First, settlement with the Plaintiffs had no impact on HOVIC’s breach of contract claims because those claims are separate and apart from the workers’ tort claims from exposure to silica dust. While HOVIC’s contractual claims may not have been properly filed as crossclaims, cf. Manbodh, 69 V.I. at ___; 2018 V.I. LEXIS 111 at *75-76 (explaining that crossclaims must arise from the plaintiff’s claim); accord V.I. R. Civ. P. 13 (rprt’s note) (“any cross-claim must arise from the same subject matter set forth in the complaint. Unrelated claims would require a separate lawsuit.”), the remedy would be severance not dismissal. Cf. V.I. R. Civ. P. 21 (severance of claims permitted). Thus, no “procedural or jurisdictional defects,” Davis, 53 V.I. at 499 (citation omitted), preclude HOVIC’s breach of contract crossclaims from proceeding. Similarly, the contribution and indemnification crossclaims asserted by HOVIC and by Raritan were not mooted by their settlement with the Plaintiffs. If settlement with the first-party plaintiffs can moot second- party or third-party contribution and indemnification claims, then the Manbodh litigation would have ended long ago. Cf. Manbodh, 69 V.I. at ___; 2018 V.I. LEXIS 111 at *11-13 (noting continuance of third-party claims for years after settlement with first-party plaintiffs). HOVIC and Raritan may not want to go forward with their crossclaims. But again, it is for them to advise the Court. One final point bears mention. The Court takes judicial notice that HOVENSA filed for bankruptcy and any claims against it would now be subject to the automatic stay. See 11 U.S.C. § 362(a). The only claims still pending at this point against HOVENSA are Raritan’s common law 6 The Court employs the phrase “second-party litigation” to refer to litigation between and among co-defendants. Accord In re: Ford Motor Co., 442 S.W.3d 265, 295 (Tex. 2014) (Boyd, J., dissenting) (referring to “second-party claims” as “counterclaims and cross-claims”). Theodule, et al. v. Hess Oil V.I. Corp., et al. Case No. SX-04-CV-604 MEMORANDUM OPINION contribution and common law indemnification crossclaims. But the automatic stay of claims against HOVENSA does not necessarily preclude Raritan’s claims against HOVIC or Hess from going forward. Cf. In re: Refinery Hydrocarbon Release Litig., SX-15-CV-100, 2017 V.I. LEXIS 101, *9 (V.I. Super. Ct. July 10, 2017) (“‘When a bankruptcy petition has been filed, it is common practice for a non-bankruptcy court in which an action is pending against the debtor and others to sever the action as to the debtor and to proceed against the solvent codefendants.’” (quoting Bradberry v. Carrier Corp., 86 So. 3d 973, 984 (Ala. 2011), parenthetically)). But cf. id. at *14-16 (discussing “related to jurisdiction” in bankruptcy proceedings and whether proceeding without the bankrupt party could have any impact on the bankruptcy estate). If Raritan inte`nds to proceed against Hess and HOVIC without HOVENSA, but Hess and HOVIC believe proceeding without HOVENSA would nonetheless have an impact on the bankruptcy estate, they must brief the issue. CONCLUSION For the reasons stated above, the Court will vacate the order granting reconsideration and reinstate the first-amended complaint. Because the first-party litigation remains pending against Fluor and may be pending against the John Doe defendants, the Court will order Attorney Huge as counsel for the Plaintiffs to file proof of service for Fluor or move for an extension of time to serve, absent which Fluor must be dismissed. If the Plaintiffs intend to proceed against either or both, they must further address why the St. Roses’ claims and the Louisons’ claims should not be severed and proceeded with separately. Additionally, because the second-party litigation is still pending, the Court will order Raritan and HOVIC to advise whether they intend to proceed with their respective crossclaims. Finally, unless Hess and HOVIC advise otherwise, the Court will deny the Hess Defendants’ motion to disqualify Attorney Huge and Motley Rice as moot since Motley Rice moved