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 2024 VI Super 5 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 2024 VI Super 5 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, 2021 VI Super 29 116' Racz v Cheetham 2019 V1 Super 99U 118 Hansen 2018 WL 4279447 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, 2018 WL 4279447 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 2018 WL 3120823 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 744 F 2d 1007 , 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 , 2023 VI Super 34 , 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 2024 VI Super 5 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 2022 VI Super 20 , 1118 Wzllzams v Caliber, 2019 VI Super 34 117 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 2024 VI Super 5 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 , 744 F 2d 1007 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 19 VI 271 (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 744 F 2d 1007 1010 (3d Cir 1984) which held that compliance with the pre filing requirements under the VITCA are Jurisdictional ”)); Yuxtang Peng v Williams, 67 VI 482 486 (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 2018 WL 4279447 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 2018 WL 1076527 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 , 2021 VI Super 19 , 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 751 F 2d 604 607 (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 2024 VI Super 5 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 , 2023 VI Super 5 , 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 2024 VI Super 5 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