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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX THEODORE CYPRIAN GUNNEL BUTCHER VIRGIN ISLANDS WATER AND POWER AUTHORITY Plaintiff vs Defendant CASE NO. SX-08-CV-0000515 ACTION FOR: WRONGFUL DEATH NOTICE OF ENTRY OF MEMORANDUM OPINION AND ORDER TO: PAMELA LYNN COLON, ESQ. DARYL BARNES, ESQ. ROCHELLE BERMUDEZ, ESQ. DOUGLAS CAPDEVILLE, ESQ. JUDGES OF THE SUPERIOR COURT MAGISTRATES OF THE SUPERIOR COURT ORDER BOOK, LAW LIBRARY, IT LAW CLERKS Please take noticethat on April 18,2011 a(n) MEMORANDUM OPINION AND ORDER dated April 12,2011 was enteredby the Clerk in the above-entitled matter. Dated: April 18,2011 Venetia H. Velazquez^sq Clerk of the Ge^ff^ IRIS D. CINTRON COURT CLERK II NOT FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX Theodore Cyprian, Plaintiff, v. Gunnel H. Butcher, et al., Defendant. MEMORANDUM OPINION THIS MATTER came before the Court for a Hearing on March 25, 2011. On June 1, 2010, Defendant Virgin Islands Water and Power Authority (hereinafter, "WAPA") filed a Motion for Certification of the Court's May 17, 2010 Order. Plaintiff filed an Opposition to Defendant WAPA's Motion for Certificationon June 16,2010. Defendant WAPA filed a Reply to Plaintiffs Opposition on June 6,2010. FACTS On November 28, 2008, Defendant WAPA filed a Motion to Dismiss for Lack of Jurisdiction on the grounds that Plaintiff failed to comply with the Virgin Islands Tort Claims Act (hereinafter, "VITCA") pre-filing jurisdictional requirements. Plaintiff filed an Opposition and Defendant WAPA filed a Reply thereto. On January 12, 2008, Judge Francis J. D'Eramo entered an Order denying Defendant WAPA's Motion to Dismiss for Lack of Jurisdiction. Subsequently, Defendant WAPA filed a Motion for Reconsideration ofthe Court's January 12, 2008 Order. On August 19, 2009, Judge Edgar D. Ross entered an Order granting Defendant WAPA's Motion for Reconsideration of the Court's January 12, 2008 Order and granting Defendant WAPA's Motion to Dismiss.' Plaintiff filed a Motion for Reconsideration of the SX-08-CV-515 1Judge Francis J. D'Eramo passed away inApril 2009. Judge Edgar D. Ross presided over this Court as the Senior Sitting Judge until theappointment ofJudge Harold W. L.Willocks. Theodore Cyprian v. gunnel h. Butcher, et al. SX-08-CV-515 Memorandum Opinion Court's August 19, 2009 Order or in the Alternative for Certification on September 29, 2UUy. Defendant WAPA filed an Opposition and Plaintiff filed a Reply thereto. On May 17, 2010, Judge Edgar D. Ross entered an Order granting Plaintiffs Motion for Reconsideration of the Court's August 19,2009Orderand denying Defendant WAPA's Motion to Dismiss because the Court found the VITCA inapplicable to Defendant WAPA. On June 1, 2010,Defendant WAPA filed a Motion for Certification. Plaintiff filed an Opposition and Defendant WAPA filed a Reply thereto. DISCUSSION Certification for Interlocutory Anneal According to Rosa v. V.I. Housing Authority, certification for appeal is appropriate where: (1) the motion to be appealed involves a controlling question of law; (2) there is substantial ground for difference of opinion with respect to the resolution of the issue to be appealed; and (3) immediate appeal could materially advance the ultimate termination of the litigation. 43 V.I. 131, 138 (2001) (citing Diaz v. Pueblo International, Inc., 23 V.I. 382, 384 (1988)). In this matter, Defendant WAPA argues that certification is appropriate given that: (1) its Motion to Dismiss involves a controlling question of law—the applicability of the VITCA to Defendant WAPA; (2) there is substantial ground for difference of opinion with respect to the resolution of the issue to be appealed; and (3) an immediate appeal could materially advance the ultimate termination ofthe litigation. In his Opposition, Plaintiffconcedes that the issue involvesa controllingquestionof law but contends that there is not substantial ground for difference of opinion with respect to the Theodore Cyprian v. Gunnel h. Butcher, etal. SX-08-CV-515 Memorandum Opinion resolution of that issue. Plaintiff argues that, in fact, "To date, every Court, including this one, who has rendered a final Order on the issue of whether the Virgin Islands Tort Claims Act applies to WAPA has answered the question with a resounding 'NO!'" See Plaintiffs Opposition to Defendant WAPA'sMotion forCertification, p. 1. In its Reply, Defendant WAPA reiterates its argument that certification is appropriate in this matter. Defendant WAPA argues that all three prongs for certification are met. First, Plaintiffconcedes that the issue involves a controlling question of law in this matter. Second, as demonstrated by this Court's contradictory rulings on the issue, there is substantial ground for difference of opinion with respect to the applicability of the VITCA to Defendant WAPA. Third, a resolution of this issue in Defendant WAPA's favor will result in the termination ofthis litigation and materially advance this matter. Precedent in the Third Circuit reveals that certification should be granted only in limited circumstances. See Glasser v. Government of Virgin Islands, 1995 WL 610614, *2 (D.V.I. 1995);seee.g., Rottmundv. Continental Assurance Co., 183 F.Supp. 1104,1112(E.D.Pa. 1992). The Court finds that Defendant WAPA has not met its burden of demonstrating that an interlocutory appeal is appropriate in this matter. The Court agrees with the parties that the first prong is met, that the issue involvesa controlling questionoflaw. However, the Courtdoes not find that the second prong is satisfied. Defendant WAPA repeatedly argues that there is substantial ground for difference of opinion with respect to the applicability of the VITCA to Defendant WAPA. However, the only difference of opinions Defendant WAPA cited to were from this Court—the August 19, 2009 Order by Judge Edgar D. Ross and the May 17, 2010 Theodore Cyprian v. Gunnel H. Butcher, et al. SX-08-CV-5I5 Memorandum Opinion Order by Judge Edgar D. Ross. Defendant argues that the fact Judge Edgar D. Ross reversed himself is enough to satisfy the second prong. The Court disagrees. Without more, the Court cannot find a substantial ground for difference of opinion. In view of that, the Court does not find it necessarily to discuss the third prong at this juncture. CONCLUSION Certification for appeal is only appropriate when all three prongs elucidated Rosa v. V.I. Housing Authority are met. In this matter, Defendant WAPA failed to meet its burden of demonstrating that an interlocutory appeal is appropriate. Accordingly, the Court will deny Defendant WAPA's Motion for Certification. DONE and so ORDERED this J& day of April, 2011. ATTEST: Venetia Ha^ey-Velazquez Clerk HAROLD'W. L. WILLOCKS Judge of the Superior Court Court ClerJ^ZT 2 Judge Francis J. D'Eramo had issued an Order on January 12, 2009 denying Defendant WAPA's Motion to Dismiss for Lack of Jurisdiction. However, Defendant WAPA argues that the Court should set aside Judge Francis J. D'Eramo's January 12, 2009 Order because it is unclear whether or not Judge Francis J. D'Eramo was privy to the entirety of the parties' arguments since Defendant WAPA filed its Reply to Plaintiffs Opposition to its Motion to Dismiss on January 12, 2009, the same day Judge Francis J. D'Eramo issued the Order. Plaintiff concedes that it is unclear whether or not Judge Francis J. D'Eramo was privy to the entirety of the parties' arguments. Accordingly, for this matter, the Court will only address the August 19, 2009 Order by Judge Edgar D. Ross and the May 17, 2010 Order by Judge Edgar D. Ross. • ^ , '--"ti C- \r-. . . ^ Or ~ -vc IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX Theodore Cyprian, Plaintiff, SX-08-CV-515 v. Gunnel H. Butcher, et al., Defendant. ORDER THIS MATTER came before the Court for a Hearing on March 25, 2011. On June I, 2010, Defendant Virgin Islands Water and Power Authority (hereinafter, "WAPA") filed a Motion for Certification of the Court's May 17, 2010 Order. Plaintiff filed an Opposition to Defendant WAPA's Motion for Certification on June 16, 2010. Defendant WAPA filed a Reply to Plaintiffs Opposition on June 6, 2010. The Court having been advised on the premises, it is hereby: Ordered that Defendant WAPA's Motion for Certification is Denied. DONE and so ORDERED this J#_ day ofApril, 2011. ATTEST: Venetia Harvey-Velazquez Clerk oi&e Cojart *limn /HAROLD W. L. WILLOCKS Judge of the Superior Court CERTIFIED TO BE ATRUE COPY This day o. VENETIA H. VELAZQUEZ, ESQ. CLERK OF THE^UHL* ^___ By ^>-^<^^r_Court ClejH^"