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SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX VERNAL EZEKIEL HERBERT, PLAINTIFF, CIVIl No SX 19 CV 629 V ACTION FOR DAMAGES NATIONAL INDUSTRIAL SERVICES, LLC, JURY TRIAL DEMANDED DEFENDANT CITE AS 2022 v1 SUPER $0 Appearances Eugenio W A Geigel Simounet, Esq GS Law Offices P C St Croix U S Virgin Islands For Plamnfi‘ Gaylin Vogel Kevin F D Amour P C St Thomas U S Virgin Islands For Defendant MEMORANDUM OPINION AND ORDER WILLOCKS, Presiding Judge (|[ l THIS MATTER came before the Court on Plaintiff Vernal Ezekiel Herbert s (hereinafter ‘ Plaintiff ) motion for relief from the February 19 2022 order pursuant to Rule 59 and Rule 60 of the Virgin Islands Rules of Civil Procedure (hereinafter Rule 59 and ‘ Rule 60 ) filed on March 4, 2022 ' On March 8 2022 Defendant National Industrial Services LLC s (hereinafter Defendant ) filed an opposition ' Rule 59(e) prmides that in] motion to alter or amend ajudgment must be filed no later than 28 days alter the entry of the judgment VI R Clv P 59(e) Rule 60 provides that lo]n motion and just terms the court may when, a party or IIS legal representative lrom a hnal judgment order or proceeding for the tollowing reasons (I) mistake inadvertence surprise or exeusable neglect (2) newly discovered evidence that could not with reasonable diligence have been discovered in time to move for a new trial under Rule 59th) (3) traud (whether in a form previously called intrinsic or extrinsic) misrepresentation or misconduct by an opposing party (4) the judgment is void (5) the judgment has been satisfied released or discharged, it is based on an earlier judgment that has been reversed or vacated or applying it prospectively is no longer equitable 0r (6) any other reason that justifies reliel However the February I9 2022 order was not a final judgment or order because it is not a decree or an order from which an appeal lies and it did not end the litigation on the merits or disposes of the entire case See V I R Ctv P 54(a) (‘ ‘Judgmen! as used in these rules includes a decree and any order horn which an appeal lies ), see also VI Consen anon Soc ) v Golden Resorts LLLP 2010 V I Supreme LEXIS 21 at *9 (V I 2010) ( a final judgment decision or order is one that ends the litigation on the merits and leaves nothing to do but execute the judgment ) (internal quotation marks and citation omitted) Cartbbeau Healtlmaxs [m v James 55 V l 691 697 n 3 (201 l)( In Dans t Allted Mortgage HereIr v National Industrial Services LLC SX 19 CV 629 Memorandum Opinion and Order 2022 VI SUPER $0 Page 2 01 7 BACKGROUND (|[ 2 On January 18 2022 Defendant filed a motion to set aside entry of default and motion to dismiss or in the alternative motion to stay On February 10 2022, Plaintiff filed a motion requesting an extension of time to oppose Defendant 5 January 18 2022 motion 7 (II 3 On February 19 2022 entered an order whereby the Court noted that under Rule 6 l of the Virgin Islands Rules of Civil Procedure [n]othing herein shall prohibit the court from ruling without a response or reply when deemed appropriate V I R Civ P Rule 6 l(f)(6) and ordered inter alia that Defendant s motion to set aside entry of default and motion to dismiss or in the alternative motion to stay filed on January 18 2022 is GRANTED as to Defendant s motion to set aside entry of default and that the default entered against Defendant on July 23 2021 shall be and is hereby VACATED (Feb 19 2022 Order p 5) (emphasis in original ) In the February 19 2022 the Court explained a Standard of Review Rule 55 of the Virgin Islands Rules of Civil Procedure provides that ‘ [w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise the court or the clerk must enter the party 5 default and that [t]he court may set aside an entry of default for good cause and it may set aside a final default judgment under Rule 60(b) VI R Civ P 55(a) (c) When default judgment has not yet been entered an even more liberal standard [is] employed when reviewing a Motion to set aside default because it is more appropriate to Capital Corp 53 VI 490 [ 498 99] (2010) we held that atrial courts order that explicitly disposes 01 some but not all claims may be considered a final order when it implicitly rules on the remaining claims renders the remaining claims moot or the remaining claims were never properly betore the trial court because of a procedural or jurisdictional defect ) To the contrary the February 19 2022 order anticipated that the litigation would re start to wit Detendant has now appeared in the matter and tiled a motion to dismiss The fact that Plaintiti expressly evoked Rule 59 and Rule 60 does not in and of itself cause the motion to arise pursuant to Rule 59(e) and Rule 60 As such the Court finds that Rule 59(e) and Rule 60 is not applicable in this instance Nevertheless this is not a tatal error to Plaintiff s motion Based upon the substance of Plaintifl s motion the Court will construe it as a motion for reconsideration of the February 19, 2022 order See Rodrtguev 1 Bureau of Corr 70 V l 924 928 n l (2019) (citing Joseph \ Bureau 0fC01rectt0ns 54 V I 644 648 n 2 (V I 2011)(‘ [T]he substance 01 a motion and not its caption shall determine under which rule the motion is construed ) 7 Plaintilt 5 February 10, 2022 motion for extension was filed after the deadlines for Plaintiff to file a response to Defendant slanuary 18 2022 motions have expired Under Rule6 l of the Virgin Islands otCivil Procedure [u]nless otherwise ordered by the court a party shall tile a response within 14 days after service upon the party of any motion except a motion filed pursuant to Rule 12 in which case [a] party shall file a response within 20 days atter Service ofa motion under Rule 12 upon the party V I R Civ P 6 l(f‘)(|) (2) Herbert v National Industrial Sentces LLC 8X 19 CV 629 Memorandum Opinion and Order 2022 VI SUPER :50 Page 3 01 7 address an action on its merits whenever possible Hansen v Bent Iguana 5 Inc 2016 VI LEXIS 187 at *8 (VI Super Ct Nov 4 2016) b Analysis According to the March 12, 2021 letter from the Lieutenant Governor 8 Office, Division of Corporation and Trademarks Denise Johannes, Director a copy of the process was served on Defendant 3 last known agent As a Virgin Islands limited liability company it is Defendant s responsibility to ensure that the Office of the Lieutenant Governor has its most current information and that Defendant can receive notices from the Office of the Lieutenant Governor Nevertheless the Court must acknowledge that Defendant filed this instant motion to set aside entry of default soon after becoming aware of the complaint on January 10, 2022 Moreover, Plaintiff has not moved for a default judgment and a default judgment has not been entered Taking everything in consideration the Court finds good cause to set aside the entry of default entered against Defendant As such, the Court will vacate the default entered against Defendant and also vacate the portion of the January 20 2022 order ordering Plaintiff to make an appropriate filing to move this matter forward as to the defaulted Defendant on or before February 28 2022 (Feb 19 2022 Order p 4) (footnote omitted) On March 4 2022 Plaintiff filed this instant motion STANDARD OF PROCEDURE ‘1[ 3 Virgin Islands Rule of Civil Procedure Rule 6 4 (hereinafter “Rule 6 4 ) governs motions for reconsideration Rule 6 4(a) provides that [e]xcept as provided in Rules 59 and 60 relating to final orders or judgments a party may file a motion asking the court to reconsider its order or decision within 14 days after the entry of the ruling unless the time is extended by the court V 1 R CW P Rule 6 4(a) Rule 6 4(b) provides that [a] motion to reconsider must be based on (1) intervening change in controlling law, (2) availability of new evidence (3) the need to correct clear error of law or (4) failure of the court to address an issue specifically raised prior to the court 5 ruling and that [w]here ground (4) is relied upon a party must specifically point out in the motion for reconsideration where in the record of the proceedings the particular issue was actually raised before the court VI R Clv P Rule 6 4(b) See also Arvzdson v Buchar 72 V1 50 64 (Super Ct Nov 4, 2019) ( motions for reconsideration must be based on one of the grounds delineated in Rule 6 4(b) ’) Generally “[a] motion for reconsideration is not a second bite of the Herbert v National Industrial Services LLC 8X 19 CV 629 Memorandum Opinion and Order 2022 VI SUPER '5 O apple [Instead it] is intended to focus the parties on the original pleadings as the main event and to prevent parties from filing a second motion with the hindsight of the court 5 analysis covering issues that should have been raised in the first set of motions In re Infant Sherman, 49 V I 452 457 (V I 2008) In determining whether to grant such a motion the Court operates with ‘ the common understanding that reconsideration is an extraordinary remedy not to be sought reflexiver or used as a substitute for appeal Id 49 V I at 458 DISCUSSION3 ‘|[ 4 In his motion Plaintiff essentially argued that the Court should not have found good cause to grant Defendant s motion to set aside entry of default and therefore should not have vacated the default entered against Defendant 4 (Motion ) c][ 5 In its opposition Defendant pointed out that ‘Plaintiff did not specify the grounds for his motion other than a general citation to the rules and thus, making it “impossible for Defendant to properly respond to the instant motion (Opps 2 ) Nevertheless Defendant argued that the Court was correct in its finding that there was good cause to set aside the entry of default ”‘ (Id , at p 4) 3 As a preliminary matter the Court notes that Plaintiff’s motion for reconsideration was timely tiled 4 The Court notes that is an argument that Plaintiff could have and should have raised previously in his response to Defendant 3 January [8 2022 motion and therefore should not be considered by the Court in a motion for reconsideration In re Infant Sherman 49 VI at 457 (‘A motion tor reconsideration is not a second bite of the apple [Instead it] is intended to focus the parties on the original pleadings as the main event and to prevent parties from tiling a second motion with the hindsight of the courts analysis covering issues that should have been raised in the first set of motions ) However as noted above Plaintiff did not file a timely opposition and although Plaintiff subsequently filed a motion tor extension after the deadline to file a response to Defendant 5 January [8 2022 has passed the Court tound it appropriate to rule on Defendant 3 January 18 2022 motion without Plaintitf 5 response Thus Plaintitt did not have the opportunity to raise this argument The Court will consider Plaintitf‘s argument in this instance but reminds Plaintiff to comply with the deadlines set forth in the applicable rules 5 Defendant referenced Herbal v National Industrial Services LLC 8X 19 CV 629 Memorandum Opinion and Order 2022 VI SUPER 3 0 Page 5 017 ‘II 6 Based on Plaintiff’s assertions in his motion the Court concludes that Plaintiff filed his motion for reconsideration of the Court 5 February 19 2022 order on the need to correct clear error of law 1 The Need to Correct Clear Error of Law ‘][ 7 When assessing a motion for reconsideration based on the need to correct clear error of law, the court may grant the motion when its prior decision applied an incorrect legal precept or failed to conduct proper legal analysis using the correct legal precept Arvzdson v Buchar 72 V I 50 (ll 4 (Super Ct Nov 4 2019) see Beachstde Assocs LLC v Ftshman 53 V I 700 706 713 715, 716 718 (V I 2010) (affirming in pan and vacating and remanding in part a trial courts denial of a motion for reconsideration because in denying the motion the trial court (1) correctly applied the law when finding no good cause existed for extending the time for service of process but (2) incorrectly applied the law after finding no good cause existed and then failing to complete the second step required by the rule which prescribed the court to assess whether any additional factors warranted granting a permissive extension of time to effectuate service of process), see also Merchants Continental Bank 2019 V1 LEXIS 145 at *5 6 (Super Ct Nov 22 2019) (quoting Snuth 2018 V I LEXIS 13 at *13 n 48) ( When analyzing a motion for reconsideration based on ‘the need to correct clear error of law the Court 5 determination depends on whether the Court in its prior decision applied an incorrect legal precept or failed to conduct proper legal analysis using the correct legal precept ) The Court looks to the moving party to specify the legal precept it should have applied or ‘show how the correct legal precept was applied incorrectly in its earlier opinion See Smith 2018 VI LEXIS 13 at *l7 18 (‘As case law interpreting Virgin Islands Rule of Civil Procedure 6 4(b)(3) illustrates the Court looks to Smith (1) to specify the legal precept it should have applied or (2) to show how the correct legal precept was applied incorrectly in its earlier Opinion (i e , legal authority which would enable the Court to  Herbert v National Industrial Services LLC SX 19 CV 629 Memorandum Opinion and Order 2022 VI SUPER 3Q rule for the first time on his personal injury claim in the context of his legal malpractice related claims or to rule his legal malpractice related claims ripe) ) ‘l[ 8 Here Plaintiff argued that to determine good cause for a motion to set aside entry of default the Court should have applied the three factor test as the courts did in James v Willlams, 26 V I 20 (V I 1990) a case from the Virgin Islands Territorial Court, and Defoe v Lesley 18 V I 307 (V I 1981) a case from the Virgin Islands District Court Appellate Division 6 The Virgin Islands Supreme Court in a pre Banks opinion entered in Spencer v Navarro, 2009 V I Supreme LEXIS 25 *4 (V I 2009) also identified the same three factor test to consider in determining whether to set aside a default judgment 7 However for the three factor test the Virgin Islands Supreme Court cited to a Third Circuit case that originated from Pennsylvania Accordingly, the three factor test in Spencer it is not binding authority on this Court See In re Catalyst Third Party Ling 67 V I 3 5 n 3 (V I Super Ct Nov 18 2015) (noting that the three factor test identified in Spencer is not binding authority because the Virgin Islands Supreme Court cited to a Third Circuit case that originated from Pennsylvania) 6 In James the court held that ‘ the motion to set aside should be granted whenever (I) the non defaulting party will not be prejudiced by the reopening (2) the detaulting party has a meritorious detense and (3) default was not the result of inexcusable neglect or a wilful act 26 V l at 23 In Defoe the court held that [flactors to be considered in determining the good cause necessary to set aside a detault judgment are that movant had a good excuse tor the default, a meritorious defense and moved to set aside default within a reasonable time 18 V I at 112 ‘ In Spencer the Virgin Islands Supreme Court held that the three factors that courts generally consider in determining whether to set aside a detault judgment [(1)] whether vacating the default judgment will visit prejudice on the plaintill [(2)] whether the detendant has a meritorious defense and [(3)3 whether the delault was the result of the detendant‘s culpable conduct 2009 V I Supreme LEXIS 25, * 4 It is puzzling why Plaintiff cited to James a case from the Virgin Islands Territorial Court, and Defoe a case from the Virgin Islands District Court Appellate Division when there is a case from Virgin Islands Supreme Court on the same issue As for James, Plaintift tailed to cite to any authority to support his proposition that a decision 1mm the Territorial Court is binding on this Court See In re Q G 60 VI 654 661 n 8 (VI 2014) t the decision ofa single Superior Courtjudge is not binding precedent on other Superior Court judges ) As tor Defoe, for the three factor test in Defoe the Virgin Islands District Court Appellate Division cited to two cases from the Eastern District of Pennsylvania District Court, and is therefore also not binding authority on this Court Neither James nor Defoe is binding authority on this Court Herbert I National Industrial Serums LLC SX 19 CV 629 Memorandum Opinion and Order 2022 v1 SUPER 333 Page 7 of7 ‘1[ 9 Thus Plaintiff failed to specify the correct legal precept the Court should have applied in the February 19 2022 order or show how the correct legal precept was applied incorrectly in the February 19 2022 order See Smith 2018 V1 LEXIS 13 at *17 18 The Court declines to make such arguments on Plaintiff’s behalf See Joseph 1 Joseph 2015 V I LEXIS 43 *5 (V 1 Super Ct Apr 23 2015) ( [I]n general the Court will not make a movant s arguments for him when he has failed to do so ) Thus the Court finds that Plaintiff failed to demonstrate that there was a clear error of law in the February 19 2022 order As such the Court will deny Plaintiff’s motion for reconsideration CONCLl SION Based on the foregoing it is hereby ORDERED that Plaintiff s motion for reconsideration, filed on March 4, 2022 is DENIED DONE and so ORDERED this Bi day of March 2022 ATTEST WJX Tamara Charles HAROLD W L WILLOCKS Clerk of the Court Presiding Judge of the Superior Court By W curt Cler S OLE: Dated 3 lb“ 3 5L