IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
                       DIVISION OF ST THOMAS AND ST JOHN

  JEFFREY JOHN MAGRAS                                         )    Case No ST 2023 CV 00105
                Plaintiff                                     )
         vs                                                   )
                                                              )
  HON ALBERT BRYAN JR GOVERNOR OF THE )                                   ACTION FOR
  VIRGIN ISLANDS ARIEL SMITH ATTORNEY )                                  DECLARATORY
  GENERAL OF THE VIRGIN ISLANDS and RAY )                            JUDGMENT INJUNCTIVE
  MARTINEZ    VIRGIN   ISLANDS   POLICE )                             RELIEF and DAMAGES
  COMMISSIONER                          )
                Defendants                                   )



                                    Cite as 

                                MEMORANDUM OPINION

fill    THIS MATTER is before the court on Defendants’ Motion to Dismiss filed on May 5,

2023 pursuant to Virgin Islands Rules of Civil Procedure 12(b)(l) and 12(b)(6) ( Motion )

Plaintiff Jeffrey John Magras ( Magras ) opposed the Motion on May 25, 2023 (‘ Opposition );

and Defendants replied to the Opposition on June 5, 2023 Magras complaint challenges a

Govemor’s Warrant issued by the Governor of the Virgin Islands to extradite Magras from the

state of Florida For the reasons stated herewith, the Motion will be granted, and the case will be

dismissed

                                       BACKGROUND

112    The instant matter arises from a complaint filed by Magras on March 30, 2023

( Complaint ), against Defendants Albert Bryan Jr , Governor of the Virgin Islands ( Bryan );

Ariel Smith, Attorneyl General of the Virgin Islands (“Smith”); and Ray Martinez, Commissioner

of the Virgin Islands Police Department (“Martinez”)
Magras v Bryan e! a!                                                                        Cite as 2024 V! Super 5
Case No ST 2023 CV 00105
Memorandum Opinion on Motion to Dismiss
Page 2 of 14


113      The Complaint avers that Magras, a resident of Florida, traveled to St Thomas, Virgin

Islands around 2018 and 2019 to do contract work on private residences and that more than one

dispute arose from that work The subject Complaint alleges that Magras has not retumed to St

Thomas since leaving on December 21, 2019 Magras, according to the Complaint, underwent

surgery around February 2020, has been in frail health since, and was advised by his doctors not

to travel

114      The Complaint alleges Magras was detained, on January 29, 2023, while Florida law

enforcement was conducting a traffic stop in St Augustine, Florida Magras was subsequently

arrested when a check of his records “ revealed a hold from the USVI, with instructions to detain

Mr Magras ”" The Complaint states that a fugitive of Justice case was commenced on January

30 2023, against Magras in Florida (‘ Honda case”) 7 The Complaint further alleges that a

Governor s Warrant, dated February 9, 2023 (‘ 2023 warrant ),3 was signed by the acting Governor

of the Virgin Islands, Bosede Bruce,4 on behalf of Bryan Magras asserts that, in the Florida case,

a warrant and miscellaneous extradition documentation were filed on March 22, 2023

115      The Complaint challenges the 2023 warrant and sues for relief on four counts Count I

seeks a declaratory judgment that Magras is not a fugitive; Count [I seeks a declaratory judgment

that the 2023 warrant is fatally defective and thus void, Count 111 requests the court to enjoin the


' Pl 5 Comp! 121 (internal quotations in original)
° The case initiated in the Seventh Judicial Circuit in and for St Johns County Florida, was filed as State ofFIonda
I chfleyJohn Magras Case No 23000004FJMA
3 In relevant part the 2023 warrant states that
         JEFFREY JOHN MAGRAS stands charged in this Territory of the crimes of Two (2) Counts of
         Obtaining Money by False Pretense in violation of 14 VIC § 834 (2) and Two (2) Counts of Grand
         Larceny, in violation of 14 VIC § 1083(a)(l) which I certify to be crimes under the laws of this
         Territory, and that the accused thereafter fled from justice of this Territory and may be found in the
         State of Florida
4 At all times material hereto Bosede Bruce served as the Commissioner of the Virgin Islands Department of Finance
0n the date of the issuance of the Governor 5 Warrant, Bruce was the acting Governor of the Virgin Islands
 Magras v Hiya): e! a]                                                                       Cite as 

 Case No ST 2023 CV 00105
 Memorandum Opinion on Motion to Dismiss
 Page 3 of 14

 pursuit of extradition and recall the 2023 warrant for being invalid, and Count IV is a claim for

 damages for aiding and abetting a false arrest filed pursuant to V I CODE ANN tit 33 §§ 3401

 17 the Virgin Islands Tort Claims Act( VITCA )

                                                  DISCUSSION

 116      Defendants move to dismiss the Complaint for lack of subject matter jurisdiction, pursuant

 to V1 R Civ P 12(b)(l), and for failure to state a claim upon which relief could be granted,

 pursuant to V I R Civ P 12(b)(6) Defendants argue that all counts pled in the Complaint fail to

 state claims for which relief may be granted, the court does not have subject matter jurisdiction

over Count IV, and Defendants possess absolute immunity for their official acts 5

                                                 Legal Standard

Rule 121”!”

1|7      Under Rule 12, a party may challenge the court 3 subject matter Jurisdiction and, thereby,

request dismissal of an action V I R Civ P 12(b)(l) Subject matter jurisdiction consists of the

court 3 ability to hear a plaintiff‘s claims, and a complaint may be dismissed if the court determines

at any time that it does not have authority over the action Jagrup v Bd ofNurse chensure, 

 116' Racz v Cheetham 2019 V1 Super 99U 118 Hansen 

 at *3

1|8      Challenges to the court’s subject matter jurisdiction may be facially or factually invoked

a facial challenge questions the court’s subject matter jurisdiction based on the allegations on the

face of the complaint; a factual one scrutinizes the existence ofjurisdictional facts sufficient to




5 The court will not reach nor address the question of absolute immunity because the Complaint is being dismissed on
other grounds
 Magras v Bryan e! a!                                                                        Cite as 2024 V1 Super 5
 Case No ST 2023 CV 00105
 Memorandum Opinion on Motion to Dismiss
 Page 4 of 14


 confer the court with subject matter jurisdiction Jagrup 1'7; Racz, 11118 9, Hansen, 

 at *3 6
119      Here, Defendants do not clarify, and Magras does not posit, under which approach the

Complaint is being challenged Nonetheless, the court finds Defendants challenge to Count IV is

factual in nature because Defendants are attacking the court’s jurisdiction to hear the matter on the

grounds that Magras did not satisfy the pre filing requirements under VITCA, and Defendants

included matters outside the pleadings to their Motion                  namely, two affidavits the court will

consider in its analysis See Jagrup, 117 (‘ [I]n determining which standard applies, the Court looks

at the specific challenge raised by the movant ’) Because the Defendants offered two affidavits to

support its argument, the court finds that the Rule 12(b)(1) analysis is a factual challenge, and the

court will weigh the evidence presented to “satisfy itself as to the existence of its power to hear

the case    Jagrup 118 (quoting VI Tel Corp v Mills Super Ct Civ No ST 17 CV 279 

 at *1 (VI Super Ct June 22 2018) (unpublished))' Racz 19




Rule 121131161

1110     Under Rule 12, a party may assert a defense for failure to state a claim upon which relief

could be granted V I R Civ P l2(b)(6) The Virgin Islands is a notice pleading Jurisdiction

therefore, to survive a Rule 12(b)(6) defense, the complaint must adequately state a claim,



6 Numerous opinions of the Superior Court have opted to follow the precedent established by Richardson I Knud
Hansen Mem'l Hosp 

, 1010 (3d Cir 1984) since, at the time of the decision in Richardson the Third
Circuit Court acted as the “de facto court of last resort” of the Virgin Islands Jeremtah v V I Dep l ofHuman Servs ,

, 1113; see cases cited Infra note 10 Richardson held that compliance with the pre filing requirements
under the VITCA are jurisdictional Richardson 744 F 2d at 1010 (findmg that the Government of the Virgin Islands
may not be sued without its consent the court held the terms of VITCA are jurisdictional and ‘that compliance with
the requirements for filing an action against the [] govemment may not be waived ) Here, the court will not deviate
from that reasoning and consider the precedent set in Richardson as a proper frame of reference
 Magras v Btyan et a1                                                                           Cite as 

 Case No ST 2023 CV 00105
 Memorandum Opinion on Motion to Dismiss
 Page 5 of 14



 maintaining that a plaintiff is entitled to relief and putting a defendant on notice of the claims

 brought against them IslandAtrlmes LLC v Bohlke 

, 1118 Wzllzams v Caliber,

 

 117 Racz 1mm 11 V I R Civ P 8(a)(2) As a result the court must accept the

 allegations in the complaint as true and any inferences drawn from them are weighed in the light

most favorable to the plaintiff Island Airlines LLC, 1118

                                                      Analysm

The court lacks sublect matter lurisdiction over Count IV

1111     In Count 1V, Magras brings a tort claim against the Defendants alleging their actions aided

and abetted the Florida Sheriff‘s arrest and detention of Magras ‘ on bogus charges ” The

Complaint alleges Defendants did not inform Magras of the specific basis for his arrest and

detention in Florida Moreover, Magras alleges the 2023 warrant prolonged his detention in

Florida, demonstrating a furtherance of Defendants’ aid and abetment of his arrest Magras alleges

Defendants actions were within the scope of their duties and reasonable

1112     Defendants contend Count IV must be dismissed because the court lacks subject matter

jurisdiction over it Defendants maintain that to pursue that Count IV tort claim, Magras was

required to first file with the Governor a notice of a claim or intent to file a claim, and required to

serve a copy of such notice upon the Attorney General pursuant to 33 V 1 C §§ 2209,7 3410 8


7 Defendants cite to 33 V l C § 2209 But that appears to be a typographical error as Section 2209 does not exist in
Title 33 of the V I Code The court deduces that Defendants intended to cite Section 3409, which states that [n10
judgment shall be granted in favor of any claimant unless” his ‘claim to recover damages for injuries to property or
for personal injury caused by the tort of an officer or employee of the Government of the United States Virgin Islands
while acting as such officer or employee, [] be filed within ninety days after the accrual of such claim      33 V I C
§ 3409(0)

8 Section 3410 provides
       The claim or notice of intention shall be filed in the Office of the Governor and a copy shall be served
       upon the Attorney General and a written receipt therefor shall be issued with the date of filing indicated
       thereon The claim shall state the time when and the place where such claim arose, the nature of same,
Magras v Bryan et a1                                                                          Cite as 

Case No ST 2023 CV 00105
Memorandum Opinion on Motion to Dismiss
Page 6 of 14



Defendants argue that filing notice of a tort claim is necessary before starting an action in the court,

and that Magras did not serve notice of a claim upon the Governor or send a copy to the Attorney

General before filing the instant action Defendants bolster their argument by providing affidavits

of two persons who work at the Office of the Governor and the Office of the Attorney General

Those two persons attest there is no record of Magras’ claim or notice of an intent to file a claim

in their respective offices

1113     [n his Opposition, Magras counters that the court should find the actual filing and service

of the Complaint satisfies the pre filing requirements of VITCA against Defendants because it

substantially complies with the statute Magras opposes Defendants affidavits simply arguing,

incorrectly, that they contain legal conclusions Magras maintains the Complaint contained all the

substantive requirements to provide notice or intent of filing a tort claim,9 and that the argument

that satisfaction of the VITCA requirements is jurisdictional is misplaced Magras highlights

Brunn v Dowdye 59 V I 899 (V I 2013) where the Supreme Court of the Virgin Islands

acknowledged that it has not made a ruling on whether the provisions of the VITCA are

jurisdictional Brunn, 59 V l at 905 n 6 Nonetheless, the Superior Court has overwhelmingly held

that compliance with the provisions of VITCA is crucial to exercise subject matter jurisdiction




       and items of damage or injuries claimed to have been sustained and the total sum claimed The notice
       of intention to file a claim shall set forth the same matters except that the items of damage or injuries
       and the sum claimed need not be stated The claim and notice of intention to file a claim shall be verified
33 V I C 9 3410

° Magras contends that the Complaint identifies the place, date, and time the claims arose, the government officers
against whom the claims are brought alleges the factual basis, and states the nature of the claims, and identifies the
damages sought ” P1 ’5 Opp n to Mot to Dismiss 2
Magras i Bryan e! a!                                                                        C ite as 2024 V1 Super 5
Case No ST 2023 CV 00105
Memorandum Opinion on Motion to Dismiss
Page 7 of 14


over a plaintiff’s claims,'0 following the precedent of Richardson v Knud Hansen Mem’l Hosp ,

 1010 (3d Cir 1984)

1114     Magras reasons that since the Complaint contains all the substantive requirements of the

statute, Defendants would not be prejudiced by accepting the Complaint as a notice under VITCA

Magras’ argument that substantial compliance with VITCA is sufficient is unfounded Magras

relies on Pickering v Gov t of V I           

 (D VI 1982) and the notion that substantial

compliance of VITCA          here, in the form of Magras’ service of the Complaint and Summonses

is sufficient to satisfy it But in Pickering, the District Court found that a ‘ notice of intention may

be deemed a “claim” within the definition of VITCA so long as the claimant “timely file[s] a notice

of intention in accordance with §§ 3409 and 3410 and has thereafter filed a related lawsuit within

the two year general limitations period             ” Pickering, 19 V I at 277 This reasoning makes the

instant matter distinguishable from chkermg because, here, Magras only filed a lawsuit in the

court

1115     The court disagrees with Magras Under VITCA, prior notice of a claim, or intent to file

one, must be served on the Office of the Governor and a copy sent to the Office of the Attorney

General, in advance of filing suit The Supreme Court, in Brurm, detennined that although

substantial compliance of VITCA is pennissible, notice to the Government is crucial to afford it




'0 Herman i V! Gm (Hosp and Health Faczlmes Corp , 2022 V1 Super 58 1|” (explaining that the court is bound
by the decision in Richardson i Knud Hansen Mem 1 Hosp 

 1010 (3d Cir 1984) which held that
compliance with the pre filing requirements under the VITCA are Jurisdictional        ”)); Yuxtang Peng v Williams,

 (V 1 Super Ct 2017) ( Virgin Islands courts have           held that failure to comply [with] the pre
filing requirements under the VITCA precludes a court from exercising subject matterjurisdiction over such claims ”);
Hansen 1 GovernorJucmF Lats Hosp & Med Ctr Super Ct Civ No SX 15 CV 509 

 at *6
8 (V I Super Ct June 22 2018) (unpublished) ( [T]he language of VITCA makes quite clear that proper notice of
intention to file a claim must be filed in the Office of the Governor with a copy served on the AG ); Hartlage v
00mm Super Ct Civ No 5X 09 CV 232 

 at *3 (V1 Super Ct Feb 20 2018)(unpub1ished)
Magras v Btyan e! (11                                                           Cite as 2024 V1 Super 5
Case No ST 2023 CV 00105
Memorandum Opinion on Motion to Dismiss
Page 8 of 14


the opportunity to determine whether claims should be settled without suit Brunn, 59 V I at 91 1

Magras, however, initiated and engaged Defendants in suit without first conveying a notice of, or

intent to file, a claim with the Office ofthe Governor or sending a copy to the Office ofthe Attomey

General Magras argues that because Defendants filed the Motion “without first making any

overtures whatsoever toward settlement of [Magras ] claims          , the Govemment chose not to

resolve the dispute, but to engage in suit ” However, the Defendants did not a duty to attempt to

settle afier Magras filed suit

1116     The purpose of the notice requirement under VITCA is to provide officials the opportunity

‘ to determine if the claims should be settled without suit ’ Herbert v Dep t of Educ , 

, 1114 (quoting Brunn, 59 V I at 91 1) Here, Defendants argue the affidavits establish that

the Complaint does not satisfy the pre filing requirements of VITCA There is no dispute that prior

to filing the instant action Magras did not provide notice to Defendants of his intent to file a claim

pursuant to VITCA Thus, Defendants were not afforded the opportunity to settle the dispute

without suit Brunn 59 V I at 91 1 see Mercer v Gov t of VI 18 V I 171 180 (V I Super Ct

1982) (finding that, where “the only document filed by plaintiff was the complaint,” construing

the service of a complaint on the Governor and the Attorney General as constituting satisfaction

of VITCA’s pre filing requirements “strained [the court's] imagination ) The Supreme Court

having determine that a claimant must provide advance notice of intent to file a claim pursuant to

VITCA, the court, here, finds it lacks subject matter Jurisdiction over the claim in Count 1V, and,

as a result, it will be dismissed




" P1 ’5 Opp’n to Mot to Dismiss 3 n 6
 Magras v Bryan e! a!                                                            Cite as 2024 v1 Super 5
 Case No ST 2023 CV 00105
 Memorandum Opinion on Motion to Dismiss
 Page 9 of 14

Counts I, II, and [I] fail to state a claim upon which relief could be granted by the court

1117      Defendants argue Counts I through III must be dismissed because they fail to state a claim

upon which relief could be granted In Count I, Magras seeks declaratory judgment that Magras is

not fleeing justice and is not a fugitive of the Virgin Islands In Count II, Magras seeks a

declaratory judgment that the 2023 warrant is fatally defective because there were no criminal

charges filed against Magras when he lefi the Territory in 2019 In Count III Magras seeks to

enjoin the use of the 2023 warrant for similar reasons as ( ounts I and 11, because the 2023 warrant

is allegedly invalid on its face; Magras suggests it falsely states he is the accused that stands

charged

{[18     Claims that request declaratory judgments must present an actual case or controversy that

is “definite and concrete, touching the legal relations of patties having adverse legal interests

Fenster 1 DeChabert 65 V I 20 36 (V I Super Ct 2016) (citation omitted)‘ Luzs v Dennis 

 (3d Cir 1984)



       A Count]

1119     Magras alleges in the Complaint, he lefi the Territory on December 21, 20l9, and there

were no criminal charges filed against him at that time; thus, he did not flee and he is not a fugitive

from justice Magras avers he had no knowledge or reason to expect that criminal charges would

be filed against him Defendants counter that Magras fails to state a justiciable controversy because

the Virgin Islands Code provides for the extradition of persons against whom criminal charges are

pending, and extradition is permissible even if criminal charges were not pending against Magras

when he left to the Ten'itory Defendants argue extradition is proper where an arrest warrant was
Magras v Bryan et a1                                                                          Cite as 

Case No ST 2023 CV 00105
Memorandum Opinion on Motion to Dismiss
Page 10 of 14


issued for a criminal defendant outside the Territory 5 V I C § 3822 '2 Defendants argue that an

arrest warrant for Magras was issued on July 29, 2020, under seal, in People ofthe V! v Jeffrey

John Magras Warrant No ST 2020 WR 00020 '3

1l20      Magras seems to argue that, because no criminal charges were filed against him by the time

he left the Territory in December 2019, he was not a fugitive from justice and is entitled to a

declaratory Judgment that he did not flee from justice and is not a fugitive of the Virgin Islands

Nonetheless Magras, alleging he is not a fugitive of Justice simply because no charges were

pending against him when he left the Territory and he was not aware that charges were later lodged

against him, does not establish the legal and factual basis for his claims under Count I '4

1121     As Defendants argue, a request for declaratory judgment is not an independent claim; there

must first exist a justiciable claim Bryan v V 1 Water & Power Auth , 

, 1i26 That

is, the controversy at issue must be definite and concrete, touching the legal relations of parties

having adverse legal interests Bryan, 1l26; Fenster, 65 V I at 43 Here, the claim is not properly

presented to the court because, as discussed above, a Governor 5 Warrant may issue when criminal

charges are pending against an accused who is not in the Territory, there is no requirement that


" Title 5 V I C § 3822 provides    Whenever the Governor of the Virgin Islands shall demand a person charged
with crime or with escaping from confinement or breaking the terms of his bail probation or parole in the Virgin
Islands from the Executive Authority of any other state, or from the chiefjudge or associate judge of the United
States District Court for the District of Columbia authorized to receive such demand under the laws of the United
States, he shall issue a warrant under the seal of the Virgin Islands, to some agent, commanding him to receive
the person so charged if delivered to him and convey him to the proper officer of the Virgin Islands (emphasis
added)

'3 Defendants sometimes refer to the 2020 warrant as filed under Warrant No ST 2000 WR 00020 Defs Mot to
Dismiss 9 n 3; Defs ’ Reply to P1 s Opp’n to Mot to Dismiss 7 The court takes judicial notice that the correct warrant
number is ST 2020 WR 00020 or abbreviated, ST 20 WR 20 A copy of the arrest warrant was attached to
Defendants Reply However, Defendants Motion acknowledges that as of the date of the filing of the Complaint
(and the Motion to Dismiss), the 2020 warrant was still under seal and Magras had not received a copy and did not
have access to it

'4 Pl sCompl W33 36
Magras v Bryan e! a]                                                            Cite as 2024 v1 Super 5
Case No ST 2023 CV 00105
Memorandum Opinion on Motion to Dismiss
Page 11 of 14

charges be filed against an accused party before he or she leaves the Territory As such, even

considering the allegations in the light most favorable to Magras, the court finds that Count I does

not state a claim upon which relief can be granted Therefore, it will be dismissed



       B Count II

1122     Magras also seeks a declaratory judgment stating the 2023 warrant is fatally defective

because it cannot be based on legitimate criminal charges Notably the 2023 warrant states that

Magras stands charged in the Territory with two counts of violating 14 V I C § 834 and two counts

of violating 14 V I C § 1083(a)(1) Magras maintains there were no criminal charges against him

when he left the Territory and, citing 5 V I C § 3541 notes the statute of limitations for those

crimes is three years Magras, thus, claims it is too late to charge him with either crime because

the statute of limitations expired before the 2023 warrant was issued and he has not been in the

Territory since December 2019

1123     Defendants point out that on or about July 29, 2020, the Superior Court of the Virgin

Islands issued an arrest warrant, the 2020 warrant, for Magras for crimes that allegedly occurred

between August 2018 and May 2020 Defendants contend the issuance of the 2020 warrant tolled

the statute of limitations Magras’ Complaint alleges, however, the 2023 warrant is fatally

defective because Magras was not aware of criminal charges filed against him when he left the

Virgin Islands    that is, Magras was not acquainted with the 2020 warrant '5

1|24     As discussed above, a person 3 lack of knowledge of criminal charges is not sufficient to

quash a Governor’s Warrant for their arrest Despite the late production of the 2020 warrant, and


'5 P] 3 Comp] 1mm 44
 Magras v Bryan er a1                                                                        Cite as 

 Case No ST 2023 CV 00105
 Memorandum Opinion on Motion to Dismiss
 Page 12 of 14



 Magras lack of knowledge that a warrant for his arrest was issued in 2020, it is clear the 2020

 warrant lodged charges for false pretense and grand larceny on July 29, 2020 The court accepts

 as true that no criminal charges were pending against Magras when he departed the Territory in

 December 2019 The court fimher accepts as true that Magras was unaware of the 2020 warrant

 until he was detained after the traffic stop on January 29, 2023 However, the mere existence of

the 2020 warrant, despite Magras lacking knowledge of it, causes the court to conclude that the

2023 warrant is not defective Thus, the court finds Count [1 fails to state a claim upon which relief

may be granted pursuant to Rule 12(b)(6) In addition, a claim for declaratory judgment is not an

independent claim, there must first exist a justiciable claim Accordingly, Count II will be

dismissed '6



       C Count 111

1125     Count 111 seeks injunctive relief and asks the court to enjoin Defendants from using the

2023 warrant to extradite Magras The 2023 warrant states that Magras is ‘ the accused” and

“stands charged , which Magras argues is fatally defective on its face and should not be used to

extradite him Magras requests the Court to enjoin extradition of Magras to the Territory and to

recall the 2023 warrant, withdraw its filing in the FL case, and remove it from the local and national

law enforcement records

1126     Defendants argue that Count 111 is not a valid claim because injunctive relief is a remedy,

notacause of action Alleynev Dzageo USVI Inc 63 V I 384 418 (VI Super Ct 2015) Indeed



'6 1f the People of the Virgin Islands had any duty to serve Magras or attempt to serve Magras with the 2020 warrant
before he was detained during the traffic stop on January 29, 2023 Magras may raise that issue in the criminal case
that is pending against him
01   24   2024