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NOT PRECEDENTIAL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.

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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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