IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX



GOVERNMENT OF THE VIRGIN ISLANDS



Plaintiff,

SX-18-CV-23



0.429 U.S. ACRES OF LAND CONSISTING OF

REMAINDER PLOT NO. 40-KB ESTATE LA

GRANGE WEST END QUARTER, ST. CROIX

and 5.225 U.S. ACRES OF LAND CONSISTING | ACTION FOR CONDEMNATION

OF REMAINDER PLOT NO. 40-KC ESTATE

LA GRANGE WEST END QUARTER VIRGIN

ISLANDS; DR. RAFAEL G. GARCIA, a/k/a

RAFAEL G. GARCIA, a/k/a RAFAEL GARCIA

GARCIA; and UNKNOWN OWNERS AND

ALL OTHERS CLAIMING AN INTEREST

THEREIN,



Defendants.



MEMORANDUM OPINION



BEFORE THE Court is Plaintiff, Government of the Virgin Islands’ (hereinafter

“Government”) Motion for an Order of Publication of Service (hereinafter “Motion’) filed on

January 31, 2018. The Motion shall be granted in part and denied in part.



BACKGROUND



This matter arises out of an action “brought by the Government of the U.S. Virgin Islands

to obtain property under its statutory authority of eminent domain, in exchange for just

compensation to be paid to the owners and all parties in interest.”! Governor Kenneth E. Mapp

signed a declaration of taking to exercise the power of eminent domain for the completion of



Phase II of the Frederiksted Economic Revitalization Project on St. Croix, USVI, pursuant to



1 Compl. 1.

Gov't of the V.I. v. 0.429 U.S. Acres, Garcia, et. al.

SX-18-CV-23



MEMORANDUM OPINION



Page 2 of 6



Title 28, V.LC § 411 et seq and Virgin Islands Rule of Civil Procedure 71.1.” “The subject

property to be acquired in fee simple absolute is Remainder Plot No. 40-KB Estate La Grange

West End Quarter, St. Croix, consisting of 0.429 U.S. acres and Remainder Plot No. 40-KC

Estate La Grange West End Quarter Virgin Islands, consisting of 5.225 U.S. acres (hereinafter



”3 Garcia is named in the Complaint as an owner or interested party along with



“Properties”).

Unknown Owners and All Others who may claim an interest in the Properties.* “Pursuant to Title

28 V.I.C. §421 the Government filed a Declaration of Taking and deposited in the court

$225,750 which was allegedly estimated by appraisers as just compensation for taking the

Property.”° Dr. Rafael Garcia (hereinafter “‘Garcia”) is named in the Complaint as an owner or

interested party along with “Unknown Owners and All Others” claiming an interest in the action.

The Government moves to serve Garcia, Unknown Owners and All Others who may claim an

interest in the Properties with a copy of the Notice by publication.

DISCUSSION



Virgin Islands Rule of Civil Procedure 71.1 governs “proceedings to condemn real and

personal property by eminent, except as this rule provides otherwise.” According to Rule

71.1(c)(1), the Government must name “at least one owner of some part of or interest in the



property.”” “Notice must be served on all defendants as provided in Rule 71.1(d), whether they



were named as defendants when the action commenced or were added later.’



2 Compl. #978,11.



3 Compl. 411.



4 Compl. 12-13.



5 Compl. 914.



6 VLR. CIV. P. 71.1(a).

TVR. CIV. P. 71.1(6)(1).

8 VIR. CIV.P.71.1()(4).

Gov't of the V_I. v. 0.429 U.S. Acres, Garcia, et. al.

SX-18-CV-23



MEMORANDUM OPINION



Page 3 of 6



Garcia is named in the Complaint as an owner or interested party along with Unknown

Owners and All Others who may claim an interest in the Properties. Upon careful review of the

record, the Notice was properly prepared and delivered to the Clerk of the Court pursuant to

Rules 71.1(d)(1) and (2). Therefore, only issues before the Court are (1) whether the Notice was

properly served on Garcia—the only named Defendant and (2) whether it is proper to grant the

Government leave to serve the Notice by publication to the Unknown Owners and all others

claiming an interest in the properties.



I. Garcia should be served personally with a copy of the Notice—not by

publication.



Since Garcia was individually named in the Complaint, the court must determine whether

he was properly served with the Notice. “Personal service of the notice shall be made in

accordance with Rule 4.” “Rule 4(1) governs proof of service.”!° When serving an individual

within the Virgin Islands, Rule 4(e) provides that



Unless law of the Virgin Islands provides otherwise, an individual — other than a

minor, an incompetent person, or a person whose waiver has been filed — may be

served in the Virgin Islands by doing any of the following:

(1) delivering a copy of the summons and the complaint to the individual

personally;

(2) leaving a copy of the summons and complaint at the individual's

dwelling or usual place of abode with someone of suitable age and

discretion who resides there; or

(3) delivering a copy of the summons and complaint to an agent

authorized by appointment or by law to receive service of process; or

(4) completing service in another manner approved by order of the court in

the pending case upon a showing:

(A) that plaintiff has exercised due diligence in attempts to

complete service using the methods provided in subparts (d)(1) to

(d)(3) of this Rule but specific circumstances have made these

efforts ineffectual in completing service upon one or more

defendants; and



9-V.LR. CIV. P. 71.1(d)(3).

10 V1. R. CIV. P. 71.1(d)(5).

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MEMORANDUM OPINION



Page 4 of 6



(B) that alternative methods to be specified by order of the court

will provide protections calculated to afford proper notice to the

defendant(s) involved, and will comport with the requirements of

Due Process.



According to Rule 71.1(d)(3), Garcia must be properly served with a copy of the Notice. !!

“Delivering the notice to the clerk and serving it have the same effect as serving a summons

under Rule 4.”!? It appears that the Government wishes to serve Garcia with the Notice by

publication pursuant to Virgin Islands Rule of Civil Procedure 4-1 and 5 V.I.C §112. Although

Garcia was not specifically named in the Government’s Motion for an Order of Publication of

Service, the Court notes that Garcia was named in the proposed order for publication which

accompanied the Government’s Motion.!?



The Government has not provided proof that it exercised due diligence in attempting to

locate Garcia to personally serve him with a copy of the Notice in compliance with Rules 4(e)

and (1).'* In addition, there is nothing on the record indicating that Garcia has “departed from the

Virgin Islands and remained absent therefrom for six consecutive weeks” or that he “is not a

resident of the Virgin Islands, but has property therein.”!> Significantly, there is no record that

the Government attempted to serve Garcia with the Notice. At this juncture, serving Garcia by



publication does not comport with Rule 4-1 or 5 V.I.C. §112. The Government, by exercising



due diligence, must attempt to locate and personally serve Garcia with a copy of the Notice



‘WI. R. CIV. P. 71.1(d)(3).



12.VJ. R. CIV. P. 71.1(d)(4).



13 See Proposed Order Attached to the Mot. at 1.



14 See Raimer v. Raimer, 2017 V.I. LEXIS 67, *1 n.3 (citing Fredericks v. Tourism Indus., 1995 VI. LEXIS 37,

*10-11, 33 V.I. 23, 28, [WL] (VL. Terr. Ct. 1995) (“Personal service on a defendant is preferred



over service by publication because service by publication is the least calculated method to bring to a potential

defendant's attention the pendency of judicial proceedings. Therefore, counsel must exercise due diligence in

attempting to serve a defendant personally before moving for substituted service by publication,



because service by publication should be a last resort after other methods at actual service have failed’”’)).



15.5 V.LC. § 112(a)(2) and (3).

Gov't of the V_I. v. 0.429 U.S. Acres, Garcia, et. al.

SX-18-CV-23



MEMORANDUM OPINION



Page 5 of 6



utilizing the methods of service prescribed by Rule 4(e) and provide proof of service to the court

pursuant to Rule 4(1).!°



Il. The Unknown Owners and all others claiming an interest in the Properties

should be served by publication.



The Government moves to serve Unknown Owners and all others claiming an interest in the

Property who were joined as defendants with a copy of the Notice by publication.!” Along with

its Motion, the Government attached a Certificate Pursuant to Rule 4-1(a) (hereinafter

“Certificate”’) certifying that the Unknown Owners and all others claiming an interest in the

Properties “cannot be personally served because after diligent inquiry within the Virgin Islands

none have been found upon whom personal service may be made.”!®



Virgin Islands Rule of Civil Procedure 4-1 governs service when service cannot be made as

prescribed in Rule 4. According to Rule 4-1(a),!?



When service of the summons and complaint cannot be made as prescribed

in Rule 4, and the requirements set forth in 5 V.I.C. § 112(a) for obtaining

substituted service by publication are established by affidavit, and the

prerequisites stated in that statute are satisfied, the court may grant an order

that service be made by publication in accord with the provisions of that

statute.



Title 5, Section 112(a) of the Virgin Islands Code, prescribes in pertinent part that service by



publication is proper where “service of the summons cannot be made as prescribed in Rule 4 [ ]



and the defendant after due diligence cannot be found within the Virgin Islands.””°



16 VI. R. CIV. P. 4(e) and 4(1).

VR. CIV. P. 71.1(c)(3).



18 See Certificate at 1.



19 VI. R. CIV. P. 4-1(a).



205 VLC. § 112(a).

Gov't of the V.I. v. 0.429 U.S. Acres, Garcia, et. al.

SX-18-CV-23



MEMORANDUM OPINION



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The Certificate is sufficient evidence that service of the Notice on the Unknown Owners and

all others claiming an interest in the Properties cannot be “made as prescribed in Rule 4, and the

requirements set forth in 5 V.LC. § 112(a).”2! Consequently, effectuating service by publication

of the Notice on the Unknown Owners and all others claiming an interest in the Properties is

proper.”?



CONCLUSION



In light of the foregoing, the Motion to Serve the Notice on the Unknown Owners and all

others claiming an interest in the Properties by publication shall be granted. The Motion to Serve

Garcia by publication shall be denied. The Government must attempt to locate and serve Garcia

personally utilizing the methods of service prescribed by Rule 4(e) and provide proof of service



to the court pursuant to Rule 4(1). An Order consistent with this Memorandum Opinion follows.



DATED this /— arn of February, 201

ATTEST: =e MV Vad



Estrella George “HAROLD W. L. WILLOCKS

Clerk of the Court Administrative Judge of the Superior Court



Dated: ah ff S



21VJ.R. CIV. P. 4-1(a).

2 5 VIC. § 112(b) and (c).