Moses President v. Government of the Virgin Islands

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 23-2313

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MOSES PRESIDENT,

Appellant

v.

GOVERNMENT OF THE VIRGIN ISLANDS;

VIRGIN ISLANDS POLICE DEPARTMENT;

VIRGIN ISLANDS TERRITORIAL EMERGENCY

MANAGEMENT AGENCY; SHONNETH GITTENS;

D’NEICIA JACOBS; ALMONT KING; A’KEYMA BARTHLETT

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On Appeal from the District Court

for the Virgin Islands

(D.C. No. 1:17-cv-00046)

Circuit Judge: Honorable Cheryl Ann Krause ∗

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Argued on December 11, 2024

Before: CHAGARES, Chief Judge; MONTGOMERY-REEVES and FISHER, Circuit

Judges.

(Opinion filed: January 7, 2025)

Kye Walker [ARGUED]

The Walker Legal Group

116 King Street, Suite 101

Christiansted, St. Croix 00820

Counsel for Appellant

Ian S.A. Clement [ARGUED]

Office of the Attorney General of the Virgin Islands

Department of Justice

34-38 Kronprindsens Gade, GERS Complex, 2nd Floor

St. Thomas, VI 00802

Counsel for Appellees

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OPINION ∗∗

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MONTGOMERY-REEVES, Circuit Judge.

In May 2017, Moses President, a police detective, responded to a call about a man

brandishing a weapon. While responding to the call, a fellow police officer shot

President.

A few months later, President filed a complaint against the Government of the

Virgin Islands and a number of police officers, including Shonneth Gittens and D’Neicia

Jacobs, seeking damages under 42 U.S.C. § 1983 for violations of his substantive due

process rights. He also sought damages for common law negligence claims. In 2022, he

sought leave to file an amended complaint that, among other changes, added claims for

gross negligence. The District Court, holding that Gittens and Jacobs were entitled to

qualified immunity, denied leave to amend as to Gittens and Jacobs, dismissed the claims

against Gittens and Jacobs, and certified that order as final.

President appealed, arguing that the District Court erred in dismissing his common

law tort claims on qualified immunity grounds. 1 Gittens and Jacobs argue that this Court

∗

The Honorable Cheryl Ann Krause, District Judge sitting by designation pursuant to 28

U.S.C. § 291(b).

∗∗

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

1

President does not challenge the dismissal of the § 1983 claims, so we do not address

them here.

2

should affirm the District Court’s order on the alternative ground that President failed to

state a common law tort claim. For the reasons explained below, we hold that the District

Court could not dismiss the common law tort claims on either basis without first

conducting an analysis under Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967 (V.I.

2011). 2

A federal court exercising supplemental jurisdiction over state or territorial law

claims must apply the substantive law of the appropriate state or territory. See Hamilton

v. Roth, 624 F.2d 1204, 1210–12 (3d Cir. 1980) (explaining that a federal court

exercising supplemental jurisdiction over state law claims applies state law as it would

when exercising diversity jurisdiction). “[W]hen exercising jurisdiction over cases

requiring the application of Virgin Islands law, [we must] predict how the Supreme Court

of the Virgin Islands would decide an issue of territorial law . . . .” Edwards v.

HOVENSA, LLC, 497 F.3d 355, 362 n.3 (3d Cir. 2007). To determine how the Supreme

Court of the Virgin Islands would rule, federal courts “must consider relevant [territorial]

precedents, analogous decisions, considered dicta, scholarly works, and any other reliable

2

The District Court had jurisdiction over this case under 28 U.S.C. § 1331 and 28

U.S.C. § 1367. We have jurisdiction over this appeal under 28 U.S.C. § 1291. “We

review the denial of leave to amend for abuse of discretion.” Budhun v. Reading Hosp. &

Med. Ctr., 765 F.3d 245, 259 (3d Cir. 2014). “A district court abuses its discretion when

it bases its decision upon a clearly erroneous finding of fact, an erroneous conclusion of

law, or an improper application of law to fact.” Satterfield v. Dist. Att’y Phila., 872 F.3d

152, 158 (3d Cir. 2017) (quoting Cox v. Horn, 757 F.3d 113, 118 (3d Cir. 2014)). We

review questions of law, such as whether a defendant is entitled to dismissal based on

qualified immunity, de novo. See Mack v. Yost, 63 F.4th 211, 227 n.14 (3d Cir. 2023)

(quoting Karns v. Shanahan, 879 F.3d 504, 512 (3d Cir. 2018)).

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data tending convincingly to show how the highest court in the [territory] would decide

the issue at hand.” Covington v. Cont’l Gen. Tire, Inc., 381 F.3d 216, 218 (3d Cir. 2004)

(quoting Packard v. Provident Nat. Bank, 994 F.2d 1039, 1046 (3d Cir. 1993)); see

Edwards, 497 F.3d at 362 n.3 (explaining that district courts should look to binding

precedent from the Supreme Court of the Virgin Islands and “seek guidance” from

Superior Court of the Virgin Islands decisions).

The Supreme Court of the Virgin Islands has held that in the absence of precedent

from the Supreme Court of the Virgin Islands on a common law rule, courts in the Virgin

Islands, including the Supreme Court, must conduct a three-factor analysis, now known

as a “Banks analysis,” to determine what should constitute Virgin Islands common law.

See Gov’t of Virgin Islands v. Connor, 60 V.I. 597, 600 (2014). This analysis requires

considering “‘three non-dispositive factors[:]’. . . ‘(1) whether any Virgin Islands courts

have previously adopted a particular rule; (2) the position taken by a majority of courts

from other jurisdictions; and (3) most importantly, which approach represents the

soundest rule for the Virgin Islands.’” Id. (quoting Simon v. Joseph, 59 V.I. 611, 623

(2013)).

Neither the parties nor the District Court have pointed to any precedent from the

Supreme Court of the Virgin Islands regarding the existence of common law qualified

immunity, the requisite standard for asserting common law qualified immunity, or the

applicable duty for the negligence claims raised here. This Court similarly has found

none. Therefore, a Banks analysis is necessary to predict what legal rules the Supreme

Court of the Virgin Islands would apply when evaluating the sufficiency of President’s

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allegations of negligence and gross negligence and Gittens and Jacobs’ assertion of

qualified immunity to those claims. As the District Court did no Banks analysis, we will

vacate the relevant orders as to President’s common law tort claims and remand to the

District Court for further proceedings should the District Court choose to continue

exercising its supplemental jurisdiction over the common law claims.

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