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DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX CHARLOTTE P. DAVIS a/k/a ║ CHARLOTTE POOLE DAVIS, ║ ║ Plaintiff, ║ 1:22-cv-00062-WAL-EAH v. ║ ║ OSBERT POTTER, Former Lt. ║ Governor of the Virgin Islands, ║ TREGENZA ROACH, ║ Lt. Governor of the Virgin Islands, ║ ALBERT BRYAN, JR., ║ Governor of the Virgin Islands, ║ GOVERNMENT OF THE ║ VIRGIN ISLANDS, ║ ║ Defendants. ║ ________________________________________________ ║ TO: Charlotte P. Davis, Pro Se Eric S. Chancellor, Esq. Venetia H. Velazquez, Esq. REPORT AND RECOMMENDATION THIS MATTER comes before the Court on an Order by the District Judge for a Report & Recommendation (“R&R”), Dkt. No. 126, on the Motion for Summary Judgment filed by Defendants Osbert Potter, former Lt. Governor of the Virgin Islands, Tregenza Roach, Lt. Governor of the Virgin Islands, Albert Bryan, Jr., Governor of the Virgin Islands, and Government of the Virgin Islands, Dkt. No. 110, as well as the Cross-Motion for Summary Judgment filed by Plaintiff Charlotte P. Davis, appearing pro se, Dkt. No. 117. For the reasons that follow, the Court recommends: (1) granting Defendants’ Motion for Summary Judgment and denying Plaintiff’s Cross-Motion for Summary Judgment on the 42 U.S.C. § 1983 cause of action, (2) that the District Judge decline to exercise supplemental jurisdiction over the local Slander of Title cause of action, (3) that the Declaratory Judgment and Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 1 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation Preliminary/Permanent Injunction “causes of action” be dismissed, and (4) that the Second Amended Complaint be dismissed. BACKGROUND I. The Complaints Davis filed her original complaint on December 2, 2022, Dkt. No. 1, an Amended Complaint on December 6, 2022, Dkt. No. 11, and a Second Amended Complaint (“SAC”)— the operative pleading—on April 23, 2024, Dkt. No. 102. While she attached numerous documents to her original and Amended Complaint, she did not attach those documents to the SAC. Nevertheless, because this action relies those documents, the Court will describe their contents when setting forth the claims in the SAC. The SAC alleged that Defendant Potter served as Lt. Governor of the Virgin Islands from January 2013 through December 2017 and, “at all times mentioned,” he “stated on official documents and otherwise indicated that he was acting in his official capacity as Lt. Governor of the Virgin Islands.” Dkt. No. 102 ¶¶ 2-3. Defendants Roach and Bryan served as Lt. Governor and Governor, respectively, from January 2018 to the present; Lt. Governor Roach acted in his official capacity at all times mentioned in the SAC1. Id. ¶¶ 4, 5, 8. Davis alleged that, on June 5, 2012, she purchased Plot No. 44 Lowry Hill, St. Croix, a 0.533 acre parcel (the “Property”), for $18,100 at a public tax auction sale conducted by the Lt. Governor’s Tax Collection Office; the Property was being auctioned based on nonpayment 1 The dates contained in the SAC for when the Defendants served as Virgin Islands officials are incorrect. Lt. Gov. Potter served in that capacity from January 2015 to January 2019, and Lt. Gov. Roach and Gov. Bryan took office in January 2019. Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 2 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation of delinquent property taxes from 1992-2007 by the owners, Haywood & Vertelle Mickens. Id. ¶ 12. In July 2013, more than one year after the redemption period, a Certificate of Purchase was issued and recorded by Lt. Gov. Potter, conveying title to the Property to Davis. Id. ¶ 13; Dkt. No. 1-1 at 1-2. The Court notes that the Certificate of Purchase was issued by then-Lt. Governor Gregory Francis; Defendant Potter did not become Lieutenant Governor until 2015. More than two years after Davis acquired title, Lt. Governor Potter’s Office issued an unsigned memo on his letterhead dated July 24, 2015, captioned “Notice of Cancellation of Property Tax Auction Sale” (the “Notice”). Id. ¶¶ 14-15; Dkt. No. 1-2 at 1. The Notice was sent to Davis at her mailing address and “purported” to cancel a January 18, 2012 tax auction sale and her title to the Property. Id. It stated: Dear Bidder: The purpose of this letter is to inform you that I, Lieutenant Governor Osbert Potter, acting pursuant to the due process requirements outlined in Title 33, Section 2541 of the Virgin Islands Code, has cancelled the tax sale transaction referenced below: Tax Sale Date: January 18, 2012 Jurisdiction: St. Croix Parcel ID: 2-05100-0298-00 Property Address: 44 Lowry Hill Winning Bid Amount: $18,100.00 The tax sale referenced herein is VOID. You did not acquire title, and ownership of the property still remains with the original owner. In a few weeks you will receive a refund of the principal of your winning bid amount. The interest amount will be calculated at a later date. If there are any questions, please contact the Office of the Lieutenant Governor for further information at the following number: (340) 779-4991. Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 3 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation Id. On October 27, 2015, Davis wrote Lt. Gov. Potter—signing her letter as Charlotte Poole Davis, Esq.—contending that the July 2015 Notice of Cancellation that referred to a January 18, 2012 Tax Auction Sale was defective because, inter alia, she purchased the Property at a June 5, 2012 Tax Auction Sale, as reflected on the Certificate of Purchase. Dkt. No. 102 ¶¶ 16-18; Dkt. No. 1-3. In the three-page letter, Davis argued that since she never received any Notice of Cancellation for the June 5, 2012 tax auction sale or any notice voiding the June 5, 2012 tax auction, her July 9, 2012 Certificate of Purchase was a “valid recorded legal document that has not been set aside,” and the Notice cancelling a property tax auction sale, without any decree of the courts cancelling a deed or Certificate of Purchase “raises questions, but the letter/memo, alone, does not transfer ownership back to the original owner.” Id. Davis asserted that the Notice failed to provide the basis for voiding the tax auction sale “and public announcements, informing the public that all of the tax sales held in 2012 and 2013 were void, cannot change deeds and Certificates of Purchase duly recorded[.]” Id. Davis’s October 27, 2015 letter also referred to the Virgin Islands’ Inspector General’s Report and Recommendations forwarded to then-Governor de Jongh on September 15, 2014 that, according to Davis, did not void all twelve tax sales conducted in 2012 and 2013 or void deeds for all of the 153 properties sold. Id. Davis noted that the sale involving her Property was not one that was void because it went to the second or third highest bidder. Id. She concluded by requesting that the cloud over her title be lifted, or the matter be resolved by “declaratory Judgment through the courts.” Id. Davis alleged that the Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 4 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation Defendants never responded to her October 27, 2015 letter or telephone calls directed to the former and current Lieutenant Governors. Dkt. No. 102 ¶19. In August 2021, Davis learned that the Lt. Governor’s Office had published a Property Delinquency Tax List stating that, as of July 15, 2021, the property owners listed were delinquent on their property taxes. Davis’s name, as owner of the Property, was included on the list, showing that $620.00 was owed. Id. at ¶¶ 20, 21; Dkt. No. 1-4. On September 28, 2021, she paid all taxes owed on the Property, totaling $831.77, to avoid the threatened sale for non-payment of property taxes. Id. ¶ 22; Dkt. No. 1-5. The “Proof of Payment for Real Property Tax” document that Davis attached to her original complaint showed the property owners as “Mickens, Hayward & Vertelle,” with her name as “Payer.” Dkt. No. 1-5 at 5. On October 1, 2021, Davis was issued a Real Property Tax Clearance Certificate by the Lt. Governor’s Office. Davis was listed as owner of the Property. Id. ¶ 23; Dkt. No. 1-6. On July 18, 2022, Davis submitted a document to Cadastral (a division of the Lt. Governor’s Office) for recording against the Property, along with the Tax Clearance Letter listing her as the owner; the documents were returned for minor corrections and verification of ownership with the Recorder of Deeds. Id. ¶ 24. When she checked with the Recorder of Deeds, she was informed that the Property was recorded in the name of the previous owners pursuant to a Special Deed for Legally Deficient Auction (the “Special Deed”), on Office of the Lt. Governor Real Property Tax Division letterhead, dated June 21, 2017 and signed by Defendant Potter. Id. ¶ 25. The Special Deed provided that Lt. Governor Potter, through his powers permitting him to correct sale or transfer of property at an auction deemed legally Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 5 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation deficient in accordance with 33 V.I.C. §§ 2541 and 2549, issued the deed in favor of the previous owners in the same manner as though it had not been sold for taxes. Dkt. No. 1-7. Davis alleged that the Special Deed did not conform to local statutory requirements for a deed, as it was not witnessed or notarized and “the cited authority, T. 33 VIC Section 2541 and 2549 does not support any authority or instances where the Lt. Governor has the authority to issue a Special Deed for real property that does not belong to the Lt. Governor or the Government.” Dkt. No. 102 ¶ 26. She added that the Special Deed was improper in form and substance, inasmuch as it did not refer to the date of the deficient tax auction sale or provide any findings or reasons for voiding the lawfully-issued July 2013 Certificate of Purchase. Id. ¶¶ 27, 33. The Defendants continued to retain the $18,100.00 purchase price she paid for the Property. Id. ¶ 28. Davis alleged that the Defendants arbitrarily deemed some tax auction sales legally deficient and arbitrarily cancelled some transactions while allowing others to stand; the actions were arbitrary, capricious, discriminatory, and constituted a taking of her real property without due process and in violation of the Fourteenth Amendment. Id. at ¶¶ 29, 30. Lt. Gov. Roach failed to take any action to remove the cloud of title over Davis’s Property caused by the Notice of Cancellation for a January 18, 2012 tax auction sale and the improperly executed Special Deed dated June 21, 2017. Id. ¶ 31. All Defendants ratified the acts of Defendant Potter and participated in the deprivation of Davis’s due process rights by failing to take any action to correct and remove the defective and improperly executed documents, creating a cloud over the title issued to her in July 2013. Id. ¶ 32. She asserted Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 6 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation that there was an “actual controversy regarding the title and ownership” of the Property. She claimed title by the Certificate of Purchase, although the records showed that the Special Deed was issued in 2017 and that the prior owners were the record owners. She also alleged that the June 5, 2012 tax auction sale was not voided as required by 33 V.I.C. § 2549. Id. In the section of her complaint setting out her claims, Davis raised one claim, slander of title, Count III, and sought two forms of relief set forth as Counts: declaratory judgment, Count I, and preliminary/permanent injunction, Count II. As to the declaratory judgment, she reiterated details concerning the documents, and sought declarations concerning whether: (1) the June 2017 Special Deed was defective and an invalid transfer of title to the prior owners of the Property; (2) the June 5, 2012 tax auction sale was voided in accordance with 33 V.I.C. § 2549; (3) 33 V.I.C. § 2549(4)2 was “overly broad, ambiguous, vague, and lacking any provision for prior notice and fails to afford due process rights for an innocent purchaser at a tax auction sale, rendering it unconstitutional”; (4) the statute was arbitrarily or 2 Title 33, Section 2549, entitled “Penalties for improperly conducting a tax . . . auction” provides, in pertinent part: (a) If the Lieutenant Governor or any person acting on his behalf- (1) sells or assists in selling any property- (A) knowing it to be exempt from attachment; or (B)knowing that the taxes for which it is sold have been paid; or (2) knowingly and willfully sells or assists in selling any real . . . property for taxes to defraud the owner thereof; or (3) in any manner restrains bidders; or (4) knowingly or willfully issues a certificate of purchase of real or personal property so sold- then the Lieutenant Governor or such person shall pay the injured party all damages sustained thereby, and all such sales shall be void. 5 V.I. C. § 2549(a). Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 7 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation discriminatorily enforced; and (5) title to the Property remained in her name, as reflected in the July 2013 Certificate of Purchase. Id. ¶ 34. Davis’s claim for a preliminary/permanent injunction reiterated her previously-filed motions for a preliminary/permanent injunction. Dkt. Nos. 7, 16. She did not acknowledge that the District Judge had already ruled on these motions. Dkt. No. 91, 92.3 Finally, Davis asserted a claim for Slander of Title/Damages. Id. at 9-12. She asserted that Defendants published “false, inaccurate and disparaging statements” regarding the Property in its July 24, 2015 Notice, which said that the January 18, 2012 tax sale was void, and that she did not acquire title, despite her Certificate of Purchase, and the June 2017 Special Deed was false inaccurate and disparaging regarding the Property. Id. at 13. She was entitled to damages for slander of title and loss of use and market value of the Property, her expenses, which she asserted was $100,000. Id. at 17. Defendants filed an answer in April 2024. Dkt. No. 105. 3 Davis claimed that she suffered irreparable injury, such as the right to enjoy title and ownership of the Property or to further convey it; monetary damages were inadequate to compensate her since real property was unique; and the defective notice of cancellation of tax sale offered her a refund of only the $18,100.00 purchase price and interest, which could not compensate her for the value of the land purchased over 10 years ago that had appreciated in value. Dkt. No. 102 at 10-12. In addition, the injury she suffered outweighed any damage the proposed injunction may cause Defendants who had no ownership rights in the Property, and the balance of equities weighed in her favor, given the defective Special Deed, lack of notice of cancellation of the June 5, 2012 tax auction sale, and the questionable constitutionality of 33 V.I.C. § 2549(4). She added more details to some of her allegations than she had set forth in the prior motion for a preliminary/permanent injunction, but made no substantive changes to those earlier motions. Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 8 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation II. Defendants’ Motion for Summary Judgment Defendants filed their motion for summary judgment in June 2024. Dkt. No. 110 (Mot.); Dkt. No. 111 (Memo & Stmt. of Undisputed Facts) (“Defs’ Stmt.”); Dkt. No. 112 (Exhibit: cover letter to Governor and Senate President regarding Inspector General (“IG”) September 14, 2014 Report on 2012 and 2013 Real Property Auctions). In their Statement of Undisputed Facts, the Defendants asserted that Davis had filed a suit under 42 U.S.C. § 1983; Davis was given a Certificate of Purchase for her winning bid on Property sold at a June 5, 2012 tax sale; the 2014 IG Report found fraud at tax sales conducted between May 2012 and March 2013; the Lt. Governor issued a Notice of Cancellation of the sale in July 2015 that was sent to Davis and described the property, amount paid, but mistakenly referenced a tax sale date of January 18, 2012; Davis’s Oct. 2015 letter to Lt. Gov. Potter acknowledged the public announcements that the 2012 and 2013 tax sales were void, and referred to the IG’s Report finding irregularities in those sales; the Lt. Governor recorded the Special Deed in June 2017 to correct the transfer of the Property in a legally deficient sale; Davis did not learn of the Special Deed until July 2022; she refused to accept a reimbursement check for her bid but filed this legal action. Dkt. No. 111 at 1-2. The Defendants contended that the Court lacked “subject matter jurisdiction” over Defendants Government of the Virgin Islands, Office of the Lt. Governor, Former Lt. Gov. Potter, and Gov. Albert Bryan4 because, under 42 U.S.C. § 1983, states, territories, and their officers acting in their official capacities are not “persons” under § 1983 and the suit against 4 Davis removed the Office of the Lieutenant Governor as a Defendant in her SAC. Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 9 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation these Defendants must be dismissed. Id. at 4. Because the Government of the Virgin Islands is a sovereign and has not given its consent to be sued under § 1983, Davis’s claims against the Government of the Virgin Islands and Office of the Lt. Governor must be dismissed. Id. at 5. The claims against former Lt. Gov. Potter must be dismissed as he was sued in his official capacity and could not be sued for damages but only prospective injunctive relief. Davis’s claims against Potter are claims against the current office holder, Lt. Governor Roach. Id. Although Governor Bryan was listed as a Defendant, sued in his official capacity, the SAC mentions that he was elected Governor in 2018 but contains no substantive allegations that he took any action that caused Davis harm, and he should be dismissed as a Defendant. Id. Defendants next assert that Davis failed to file her complaint within the applicable two-year statute of limitations for § 1983 actions. Id. Davis claimed that her due process rights were violated when Lt. Gov. Potter voided the tax auctions occurring in 2012 and 2013 as a result of irregularities, but she acknowledged that she was aware of announcements notifying the public that the tax sales during those years were void, and that she received the July 24, 2015 letter from the Lt. Governor’s Office stating the tax sale of the Property was void because of those irregularities and the IG’s Report. Id. at 5-6. Her § 1983 claim accrued no later than July 24, 2015 when she received the Notice from the Lt. Governor’s Office that the tax sale was void, but she filed her action on December 22, 2022, five years after the statute of limitations expired. Id. Finally, the Court lacked subject matter jurisdiction over the slander of title claim because she failed to comply with the Virgin Islands Tort Claims Act (“VITCA”). Id. at 7. The Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 10 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation Virgin Islands Government has consented to be sued in tort as long as statutory procedures were strictly followed. Title 33, Section 3409, provides that a claim to recover damages against a Government employee shall be filed within 90 days after the accrual of such claim (unless the person files a notice of intention to file such a claim within that 90 days, in which case the claim must be filed within two years). Pursuant to 33 V.I.C. § 3410, the claim or notice has to be filed in the Governor’s Office and a copy served on the Attorney General. Davis’s claim accrued on July 24, 2015 when she received the Notice that the tax sale had been canceled and she did not have title to the Property. She failed to file her claim within two years, or to allege in her complaint that she complied with VITCA’s requirements. Thus, the Court lacked jurisdiction over her slander of title claim for damages. Id. at 7-8. In her response to Defendants’ motion for summary judgment, Davis disputed Item 1 of Defendants’ Undisputed Material Facts indicating that she had sued the individual Defendants in their official capacities. She responded that the “caption does not indicate that Defendants are being sued in their official capacity.” Dkt. No. 116-1 at 2. Davis then asserted that she did not disagree with Defendants’ authority that if the individual Defendants were alleged to have been acting in their official capacities, the § 1983 claim against them could be dismissed, as occurred in McCauley v. University of the Virgin Islands, 618 F. 3d 332 (3d Cir. 2010). Dkt. No. 116-1 at 3. However, Defendants “incorrectly state[] that the Defendants in this case were sued in their Official capacity” and that the caption named the parties in their official capacity: “Nowhere in the Second Amended Complaint does Plaintiff allege that any of the Defendants were acting in their official capacity, although Defendant Potter may Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 11 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation have executed documents as the Lt. Governor[.]” Id. Confusingly, however, Davis then quoted SAC ¶ 9 that alleged that “while acting under color of law (while) in their official capacity Defendants deprived Plaintiff of her real property” by failing to comply with 33 V.I.C. § 2549. Id. She asserted that Defendants Potter, Roach, and Bryan acted under color of law and were persons under § 1983 who could be sued for violations of her constitutional rights. Id. at 4. She alleged in the SAC that Defendants ratified and affirmed Potter’s actions, which included Roach and Bryan. Id. at 5. In addition, the IG’s Report required the Governor’s written response to each finding, which meant that the Governor’s office was actively involved with the voidance of tax sale transaction cases. Id. Davis next argued that the statute of limitations did not bar her § 1983 claim because it should have accrued on the date Defendants gave her notice of the cancellation of the June 5, 2012 tax auction, which she never received; the notice of cancellation referenced only a January 18, 2012 tax sale date. Id. at 6. Although Defendants now argue that the incorrect date of the tax sale was typed on her notice, they never sought to correct the mistake. Id. The Lt. Governor’s May 20, 2015 letter to property owners about the IG’s investigation advised that the Lt. Governor’s Office was launching its own internal investigation to determine what properties were affected by the irregularities. The date of the sales were not interchangeable because what transpired on January 18, 2012 cannot provide a basis for cancellation of a tax sale transaction made on June 5, 2012. Id. at 6-7. Davis further argued that the statute of limitations is tolled in cases involving the voidance of property tax sales conducted without constitutionally adequate notice to the Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 12 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation property owner. Id. at 7, citing Benoit v. Panthanky, 780 F.2d 336 (3d Cir. 1985). The facts in Panthanky were analogous, since Defendants were claiming that voiding the June 5, 2012 tax sale was proper while they failed to provide Davis any notice and an opportunity to contest the decision to void the sale and defend her title. Id. Finally, the Court had jurisdiction over her claim for damages, since the U.S. Supreme Court has held that exhaustion of state administrative or judicial remedies was not necessary before a § 1983 action could be commenced. Id. at 8. No requirement for compliance with the VITCA was imposed on a § 1983 litigant. Id. In their Reply, the Defendants observed that nothing in the SAC indicated the Defendants were sued in their individual capacities. Dkt. No. 119 at 3. They cited SAC paragraphs 3 and 5 that alleged that Defendant Potter was acting in his official capacity at all times referred to in the complaint, and Defendant Roach acted or failed to act in his official capacity as Lt. Governor. Id. at 1. The SAC stated only that Defendant Bryan was the elected Governor of the Virgin Islands and contained no other allegations against him. The individual Defendants should be dismissed. Id. Davis’s position that she never received notice of cancellation of the June 5, 2012 tax auction sale was ostensibly false. While she argued that the notice she received mistakenly referred to a January 18, 2012 tax sale date, it is undisputed that she was notified that the tax sale at which she purchased the Property was void since all 2012 and 2013 tax sales were declared void and she did not acquire title. Id. at Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 13 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation 1-2. She acknowledged this in her October 20145 letter to Lt. Governor Potter. Id. at 2, (citing Dkt. No. 11-3 at 2). Davis knew in 2014 that the Lt. Governor’s actions placed a cloud on her title and her remedy was filing a declaratory judgment. She filed this action in 2022 seeking remedies for injuries that accrued in 2014, five years after the statute of limitations expired. Dkt. No. 119 at 2. Davis’s cause of action for slander of title is a tort action under Virgin Islands law that did not implicate the deprivation of a constitutional right or violation of federal law, and jurisdiction for this claim could not be predicated on § 1983. The VITCA is not a remedy to be exhausted, as Davis argued: it is the Virgin Islands’ waiver of sovereign immunity. Id. III. Davis’s Cross-Motion for Summary Judgment In her memorandum in support of her cross-motion, Davis once again summarized her interpretation of the documents surrounding the auction sale and voiding of the sale. Dkt. No. 117-1 at 1-4. She added some new facts to this history: Lt. Governor Potter had sent her a letter on May 20, 2015 informing her that there had been procedural irregularities and possible fraud with properties acquired at the 2012 and 2013 auctions which were being investigated by the IG. Dkt. No. 117-1 at 2. The letter advised the property owners to refrain from improving the properties until further notice. The background also referred to a Notice of Attachment sent to the Haywards on April 13, 2012, published in the May 6-7, 2012 Avis Newspaper. Id. at 3. 5 The references to 2014 are errors. The letter was dated October 2015. Dkt. No. 1-3, and thus she knew in 2015 that the Lt. Governor’s actions placed a cloud on her title. Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 14 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation She then provided a list of eleven undisputed facts. Id. at 5-7. She included argument and/or legal conclusions among those facts, such as that the Notice of Cancellation “changed the procedure for cancellation or voidance of a tax auction sale, from what is required by the provisions” of 33 V.I.C. § 2549; that that Notice “did not provide [her] prior notice and an opportunity to defend her property right and challenge Defendant Potter’s actions”; and that ”the July 24, 2015 Notice of Cancellation of Property Tax Auction Sale did not void the January 18, 2012 Tax Auction.” Dkt. No. 117-1 at 6, 7. She contended that her declaratory judgment action was primarily centered around two documents issued by Defendant Potter: the July 24, 2015 Notice of Cancellation of Property Tax Auction Sale, and the June 21, 2017 Special Deed for Legally Deficient Auction. Id. at 7. She asserted that both were fatally defective on their face, and inconsistent when considered together: the July 2015 Notice did not cite any statutory authority for cancellation of the tax sale and did not follow the established authority for voiding such transactions. Id. at 8. The statute, 33 V.I.C. § 2549, listed four instances of improperly conducted tax sales, and the July 2015 Notice skipped how or why the auction was voided and concluded that it was void without any mention of improper conduct. Id. The Notice also “changed the procedure for cancelling or voiding a tax auction sale” and failed to give Davis “prior notice” of Lt. Gov. Potter’s decision to cancel the tax sale transaction or an opportunity to challenge the decision and defend her property rights, depriving her of constitutional due process rights prohibited by § 2549. Id. Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 15 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation The June 2017 Special Deed provided that Lt. Gov. Potter, “by the powers vested in me correct the sale and transfer of property at an auction deemed to be legally deficient in accordance with 33 V.I.C. §§ 2451 and 2549.” Id. at 9. But § 2549 did not authorize him to make any conveyance of property to anyone. Id. The two documents were inconsistent since the July 2015 Notice failed to cite § 2549 as the basis for the Lt. Governor’s authority to void the tax sale and made no mention that the auction was deemed legally deficient, as stated in the Special Deed. Id. In addition, the Notice referred to a January 18, 2012 tax sale date, which was not the Plaintiff’s purchase date. If the Defendant had followed § 2549’s requirements, the actual sale date would have been necessary to determine when and what improper conduct may have occurred, since what occurred at the January 18, 2012 auction may not have occurred at the June 5, 2012 auction. Id. at 9-10. She referred to the notice of attachment sent to the Mickensses in April 2012 and the publication of the notice in the May 6-7, 2012 Avis. Id. The July 2015 Notice of Cancellation did not cancel the June 5, 2012 auction, which was the prerequisite to voiding the tax sale, and the notice was ineffective to void the June 2012 tax sale transaction. Id. Section 2549 did not give the Lt. Governor any authority to make any conveyance of real property by issuing a deed or special deed, and thus the Special Deed was void and/or voidable on its face, and was ineffective to transfer title to the prior owners of the Property for numerous reasons, including lack of two witnesses, no notarization (in compliance with 28 V.I.C. §§ 41-44). Id. at 11-12. Section 2549 failed to provide notice (due process) for the successful bidder and an opportunity to contest the voidance of a property tax auction sale. Id. at 12. As a property Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 16 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation owner, Davis was entitled to the same due process rights as the prior owners. In an August 28, 2014 Advisory Opinion, the V.I. Attorney General warned about failing to adhere to due process notice requirements that could result in voidance of tax sales, noting that “the successful bidders or present owners would have a due process right to challenge the notice or invalidation or voiding of the tax sale.” Id. at 13. The Advisory Opinion was not attached. With regard to the slander of title claim, she set forth six purportedly undisputed facts: (1) Lt. Gov. Potter executed and recorded the June 21, 2017 Special Deed in favor of Hayward Mickens/Vertielle Cameron for the Property; (2) the Deed contained “false, inaccurate and misleading information,” the Lt. Governor was vested with the power to correct the sale or transfer of property at a legally deficient auction, and the June 5, 2012 auction was not voided or deemed legally insufficient; (3) the Special Deed lacked the requirements for execution of a Deed in the Virgin Islands; (4) Plaintiff’s free and clear title was rescinded after the execution of the Special Deed, exposing the Property to mortgages and encumbrances; (5) “Defendant” published a property delinquency list in 2021 falsely listing Plaintiff as the delinquent property owner of the Property, owing real property taxes; and (6) the Special Deed continued to be recorded against the Property. Id. at 13-14. She cited Alexander v. Alexander, a September 22, 2016 V.I. Supreme Court case, that invalidated a deed purporting to convey land because the deed had only one witness. Id. at 15. In her “Conclusion,” Davis contended that § 2549 provided the procedure for voiding a tax sale, that procedure was not followed, she was not afforded due process and Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 17 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation opportunity to defend the taking of her property, and she was entitled to ownership and title to the Property as a matter of law. Id. Davis also submitted an affidavit and attachments with her memorandum, Dkt. No. 117-2, but because it was garbled, she sought permission to file it in hard copy. Dkt. No. 122. 127. The District Judge gave permission and Davis filed the documents on July 17, 2024. Dkt. No. 130. The affidavit detailed when she received the attached exhibits, which consisted of documents sent to the owners of the Property (Hayward & Vertelle Mickens) concerning the notice of attachment sent by the Lt. Governor’s Office in 2012. Dkt. Nos. 130, 130-1 to 130-4. In their response, the Defendants disagreed that § 2549 represented the sole authority for voiding improperly conducted tax sale auctions or for giving her due process rights, since the protections in § 2549(e) were for the benefit of the property owner whose property was subject to a tax sale, not for the benefit of the bidder on the property. Dkt. No. 120 at 2. They agreed that the Notice of Cancellation did not void a January 18, 2012 tax sale since that date was an error, but Davis knew it was an error since the Notice otherwise informed her that her purchase of the Property was void and she did not acquire title. They also agreed that the Special Deed was “a nullity as the prior owners retained ownership of [the Property] because the June 5, 2012 auction was void.” Id. at 2-3. Defendants argued in opposition that Davis was not entitled to summary judgment because her claims fell outside the two-year statute of limitations. Dkt. No. 120. The May 20, 2015 letter from the Lt. Governor’s Office notified her of irregularities and possible fraud in the 2012 and 2013 auction sales, and the July 2015 follow up letter informed her that the Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 18 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation auction in which she purchased the Property was cancelled, the tax sale transaction was void, she did not acquire title to the Property, and she was entitled to a refund. Id. at 3-4. The letter mistakenly indicated the auction sale date was January 18, 2012 but that was a scrivener’s error. Id. at 4. Despite the error in the sale date, the Notice of Cancellation listed Davis’s name, mailing address, bid amount, description of the Property and tax identification number of the Property, stating in unambiguous terms that the sale of the Property was void, Davis did not acquire title, and she would receive a refund with interest. Id. Davis understood the Notice voided the tax sale, given the text of her October 2015 letter to Lt. Governor Potter, where she advanced the theory that the Notice did not void the sale because it referred to the wrong date. Id. at 5. Her claims for declaratory judgment and slander of title were filed outside the two-year statute of limitations. Id. In her reply, Davis reiterated many of the points she made in her cross-motion and in her opposition to the motion for summary judgment. Dkt. No. 121. On July 19, 2024, Davis filed a “Supplemental Document” in support of her cross- motion: the 2024 tax bill for the Property, sent to her. Dkt. Nos. 131, 131-1. She indicated that the Notice stated that she was the owner of the Property. Id. DISCUSSION I. Relevant Standards Pursuant to Fed. R. Civ. P. 56, a court should grant a motion for summary judgment where the record “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 19 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation bears the initial burden of “identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine [dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual dispute is material “if it bears on an essential element of the plaintiff's claim,” and is genuine if “a reasonable jury could find in favor of the non-moving party.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). In deciding a motion for summary judgment, a district court must “view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion,” id., but must not make credibility determinations or engage in any weighing of the evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, [however,] there is no genuine [dispute] for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the moving party has met this initial burden, the burden shifts to the non-moving party who must provide evidence sufficient to establish that a reasonable jury could find in the non-moving party's favor to warrant the denial of a summary judgment motion. Lawrence v. Nat'l Westminster Bank N.J., 98 F.3d 61, 65 (3d Cir. 1996). The party opposing the motion for summary judgment cannot rest on mere allegations, instead it must present actual evidence that creates a genuine dispute as to a material fact for trial. Anderson, 477 U.S. at 248. Where, as here, cross-motions for summary judgment are filed, “the court must rule on each party's motion on an individual and separate basis, determining, for each side, Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 20 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation whether a judgment may be entered in accordance with the Rule 56 standard.” Auto-Owners Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388, 402 (3d Cir. 2016) (alteration omitted) (quoting 10A Charles Alan Wright et al., Federal Practice & Procedure § 2720 (3d ed. 2016)). Plaintiff Davis is appearing pro se in this action. Courts typically afford pro se litigations considerable leeway. Pratt v. Port Auth. of N.Y. & N.J., 563 F. App’x 132, 134 (3d Cir. 2014). “The rationale underlying this rule is that a pro se litigant generally lacks both legal training and experience and, accordingly, is likely to forfeit important rights through inadvertence if he is not afforded some degree of protection.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010). However, “the degree of solicitude may be lessened where the particular pro se litigant is experienced in litigation and familiar with the procedural setting presented.” Id. at 102. Davis signed her October 2015 letter to Lt. Governor Potter, in which she made rather articulate and sophisticated arguments about the legal effect of the Notice of Cancellation, as “Charlotte Poole Davis, Esq.” Dkt. No. 1-3. Given that Davis had legal training and was, at least formerly, an attorney, the Court will not accord her the solicitude it otherwise accords pro se litigants. See Pager v. Metro. Edison, No. 17-cv-934, 2019 WL 4736227, at *4 (M.D. Pa. Sept. 27, 2019) (“]T]he purpose behind affording liberal construction to pro se filings—which is to assure adequate review of claims brought by non-legally trained individuals—would not be furthered by construing [a pro se attorney’s] filings liberally.”) (quoting McNamara v. Brauchler, 570 F. App’ 741, 743 & n.2 (10th Cir. 2014) (per curiam); Feingold v. Unitrin Direct, No. 12-cv-1250, 2012 WL 3866945, at *3 (E.D. Pa. Sept. 6, 2012) (“Ordinarily, pleadings that Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 21 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation are pro se must be held to less stringent standards than formal pleadings drafted by lawyers. However, pro se attorneys—or in Plaintiff’s case, a pro se disbarred attorney—typically cannot claim the special consideration which the courts customarily grant to pro se parties.”) (internal quotation marks, citations, and alterations omitted). II. The Claim Under 42 U.S.C. § 1983 Similar to the Amended Complaint, the SAC did not assert an actual cause of action under § 1983, although Davis, having been an attorney, would certainly know how to raise such a claim in a complaint. Instead, the caption states: “Jurisdiction: 14th Amendment of United States Constitution, 42 USC Section 1983, Actions for Declaratory Judgment, Preliminary Injunction, Permanent Injunction, Slander of Title/Damages.” Dkt. No. 102 at 1. The SAC made passing references to “due process,” the “14th Amendment” and “takings.” See generally id. The parties have briefed their cross-motions for summary judgment as if Davis had actually set forth a § 1983 claim. As a result, the Court will construe the SAC as stating such a claim—the only anchor to jurisdiction in federal court—given that the slander of title claim is a local claim, and the “claims” for declaratory judgment and an injunction are actually remedies—and will proceed with the analysis. In pertinent part, the statute setting forth a cause of action under 42 U.S.C. § 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.] Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 22 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation 42 U.S.C. § 1983. Thus, a plaintiff seeking relief under § 1983 must prove “two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Washington v. Hanshaw, 552 F. App'x 169, 171 (3d Cir. 2014) (emphasis added). It is well-settled that “the Government of the Virgin Islands, its agencies, and its employees sued in their official capacities are not ‘persons’ under 42 U.S.C. § 1983.” Tobal v. V.I. Police Dep’t, No. 10-cv-0062, 2022 WL 136841, at *12 (D.V.I. Jan. 13, 2022) (citing McCauley, 618 F.3d at 240 and Ngiraingas v. Sanchez, 495 U.S. 182, 192 (1990)). This is because the Virgin Islands Government, its agencies, and its officers acting in their official capacities are treated like States, not local governments, when sued for damages. See id; see also Lancaster v. N.J. Transit Corp., No. 20-cv-1995, 2021 WL 4473114, at *5 (D.N.J. Sept. 30, 2021) (“A plaintiff seeking relief under section 1983 must establish that the individual or entity who committed the constitutional violation is a person for the purposes of section 1983.”) (internal quotation marks, citation omitted). Accordingly, Davis cannot seek money damages under § 1983 against Defendants Government of the Virgin Islands, Governor Bryan, Lt. Governor Roach, and former Lt. Governor Potter in their official capacities. Williams v. VIHA, No. 05-cv-0009, 2007 WL 6027814, at *7 (D.V.I. Oct. 25, 2007); Eddy v. V.I. WAPA, 966 F. Supp. 468, 477 n.8 (D.V.I. 1997). Although Davis curiously argues that she has not sued the individual Defendants in their official capacities, that assertion is belied by the actual allegations in the SAC where she: (1) describes the individual Defendants as current or former elected officials of the Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 23 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation Virgin Islands; (2) asserts that “at all times mentioned herein, Defendant Potter stated on official documents and otherwise indicated that he was acting in his official capacity as Lt. Governor of the Virgin Islands”; and (3) claims that the Court had jurisdiction of the matter under, inter alia, 42 U.S.C. § 1983 and that “while acting under color of law in their official capacity, Defendants deprived Plaintiff of her real property[.]” Dkt. No. 102, ¶¶ 2-9. The Court rejects Davis’s argument that she did not sue the Defendants in their official capacities. Davis may only seek prospective injunctive relief against the individual Defendants. Brow v. Farrelly, 994 F.2d at 1037 n.12 (3d Cir. 1993) (noting that Third Circuit could not rule out the possibility of “section 1983 actions for prospective injunctive relief against territorial officials in their official capacities”). To allege a claim of prospective injunctive relief, a complaint must allege an “ongoing violation of federal law and seek relief properly characterized as prospective.” Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002). In the SAC’s request for a preliminary/permanent injunction, Davis seeks to have the encumbrances on her Property removed from the land records. Dkt. No. 102 at 16. None of the parties have addressed the question of prospective injunctive relief. (Defendants mention it only in passing, Dkt. No. 111 at 5.) While Davis believes a local statute, 33 V.I.C. § 2549, caused her injury, not a federal statute, the Court will, for purposes of this R&R only, consider that she has sought prospective injunctive relief. However, that does not save her § 1983 claim from the Court recommending that Defendants be granted summary judgment on that cause of action. This is because the statute of limitations for § 1983 actions clearly ran by the time Davis filed her complaint in 2022. A claim brought under Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 24 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation 42 U.S.C. § 1983 is subject to the same statute of limitations as a personal injury claim in the state where the claim arose. Wallace v. Kato, 549 U.S. 384, 387 (2007). Davis’s claims against the Defendants arose in the Virgin Islands; thus, the Virgin Islands’ two-year statute of limitations for personal injury actions, 5 V.I.C. § 31(5)(A), applies. The limitations period begins to run “when the plaintiff knows or has reason to know of the injury which is the basis of the section 1983 action.” Genty v. Resolution Tr. Corp., 937 F.2d 899, 919 (3d Cir. 1991). The Defendants contend that the § 1983 statute of limitations had run prior to Davis filing this action, given that she acknowledged that she (1) heard public announcements that the 2012 and 2013 tax sales were void; (2) received the July 24, 2015 letter from Lt. Gov. Potter stating that the tax sale of the Property was void due to irregularities in the sale; and (3) knew the content of the IG’s report detailing numerous irregularities in the 2012 and 2013 tax sales. Dkt. No. 111 at 6. Thus, she knew of her injury by July 24, 2015 but did not file her complaint until December 2022, more than five years after the statute of limitations had run. Davis responded that the statute of limitations for her § 1983 claim should accrue from the date Defendants gave her notice that the June 5, 2012 tax auction was cancelled, which has never occurred (apparently, because she received no Notice of Cancellation voiding that tax sale), so the statute of limitations has not run. Dkt. No. 116-1 at 5-6. The Court rejects Davis’s argument. She relies heavily on the fact that the Notice of Cancellation contained the wrong tax sale date (January 18, 2012 rather than June 5, 2012) and did not provide a specific basis for voiding her tax sale, the Notice had no effect and was a nullity. But she cites no case law that these types of issues could affect her knowledge of Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 25 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation her injury. Her arguments about the possible legal effect of what was or was not contained in the Lt. Governor’s Notice are merely her opinions, without legal support, and do not change the fact that the Notice sent to her address provided her, as a bidder, notification in clear and unmistakable terms that the tax sale at which she purchased the Property, identified by Parcel ID Number and amount paid, was void “pursuant to the due process requirements outlined” in 33 V.I.C. § 2541.6 Dkt. No. 1-2. (“The tax sale referenced herein is VOID. You did not acquire title, and ownership of the property still remains with the original 6 Section 2541 provides, in part: (b) The Lieutenant Governor shall prepare a written notice of attachment of the real property on which the taxes . . . are owing by the delinquent taxpayer. This notice shall contain the amount of the delinquent taxes . . . and the interest provided for by section 2494 of this chapter, and shall contain a statement that if all the taxes . . .are not paid within the period prescribed in section 2546 of this title, the property shall be sold at public auction. This notice shall also contain the date of the public auction at which the property will be sold for unpaid taxes as well as the date upon which the period to redeem the delinquent real property expires. The attachment shall be enforceable as soon as notice thereof shall have been served by leaving a copy with the debtor himself or any member of his family or attendants of legal age, a record of which service shall be noted down for subsequent action. When the debtor, a member of the debtor's family or attendants cannot be found, the Lieutenant Governor shall leave the notice with two neighbors of the debtor who shall be witnesses of the service of the notice, or, if no witnesses can be found willing to receive the notice as certified by affidavit, then the notice shall be (1) mailed to the debtor's last known address and published in a newspaper of general circulation once a week for four consecutive weeks, and (2) posted in the post office nearest to the attached property or posted on the bulletin board of the Superior Court of the Virgin Islands on the island of the attached property, whichever place is reasonably calculated to apprise the debtor of the attachment. After the levy of the attachment the Lieutenant Governor shall have affixed to the notice a certificate describing the property attached, and shall cause the said certificate to be recorded in the real property register in the office of the recorder of deeds. Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 26 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation owner. In a few weeks you will receive a refund of the principal of your winning bid amount. The interest amount will be calculated at a later date.”). Moreover, Davis had realized her injury for purposes of § 1983—the voidance of her property purchase and an apparent inability to contest the Lt. Governor’s decision—when she wrote a three-page letter to the Lt. Governor on October 27, 2015 advancing her legal arguments against the sale being voided and in favor of her Certificate of Purchase being valid. Dkt. No. 1-3. The text of her letter indicated she was familiar with the IG’s report, forwarded to the Governor on September 15, 2014, concerning improprieties in the 2012 and 2013 tax sales. Id. at 2. The most telling statement showing that Davis perceived an injury to her interests at that time was her letter’s closing statement that, if the Lt. Governor did not agree with her position and remove the cloud over her title, “the matter [will have to] be resolved by Declaratory Judgment through the courts.” Id. at 3. This is an unmistakeable admission that she was aware of her injury, as people—and especially attorneys—invoke the possibility of court action to defend and protect their interests from real or perceived injury. But for completely unknown reasons, Davis waited seven years before she filed a lawsuit—long after the two-year statute of limitations under § 1983 had run. The Court rejects Davis’s argument that the statute of limitations “should” run from when she received notice that the June 5, 2012 tax sale was cancelled, and she has never received such notice, the statute of limitations has not run, because this is not a statement of the law. Thus, her § 1983 claim is barred by the applicable statute of limitations. Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 27 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation Davis advances an additional argument—that statutes of limitations are tolled in cases involving the voidance of property tax sales conducted with constitutionally inadequate notice to the property owner. Dkt. No. 116-1 at 7. She cites Benoit v. Panthanky, 780 F.2d 336 (3d Cir. 1985), in support. Benoit, however, is inapposite. In that case, the St. Croix property owner filed suit, alleging that the government improperly sold his property at a tax sale, the tax sale was void because the notice to him was constitutionally inadequate, and thus no title had passed. The district court held that the two-year statute of limitations to set aside a tax sale under Virgin Islands law would not run for tax sales conducted without constitutionally adequate notice to the property owner. Id. at 338-39. On appeal, the Third Circuit rejected the purchasers’ contention that the notice was not constitutionally defective and opined that statutes of limitation are “ineffective to preclude a claim of voidness based on ‘jurisdictional’ defects in a tax foreclosure proceeding” and constitutionally inadequate notice was such a jurisdictional defect. Id. at 338-39 & n.3. The Benoit ruling does not help Davis because she was not the owner of property sold at a tax sale who received constitutionally inadequate notice of the tax sale, whose interest in the property was protected by statute; she was merely the purchaser at a tax sale. In Benoit, the purchasers’ interest in the property was voided and the court ruled no title had passed from that void sale—which is what occurred in this case (although the voidance was occasioned by irregularities other than inadequate notice). The Territorial Court spoke about how the applicable statutes, 33 V.I.C. § 2491 et seq., were “strictly construed in favor of the owner of the land,” and discussed how § 2541, and cases interpreting that statute, Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 28 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation protected property owners by requiring constitutional notice prior to a sale. Benoit v. Panthaky, No. 81-cv-976, 1983 WL 889856, at *1-2 (V.I. Terr. Ct. Sept. 13, 1983); see also 33 V.I.C. § 2549(e) (protecting the “constitutional due process rights of the property owner” and saying nothing about any rights of the purchaser of the property at a tax sale). The fact that neither § 2541 nor § 2549 protects purchasers of property at a tax sale is not a constitutional defect. Davis’s argument on her § 1983 claim that purchasers should be protected as well, Dkt. No. 117-1 at 12-13, “is more appropriately directed toward the Virgin Islands legislature” for them to amend the statute to include those protections if they see fit. Dougherty v. Hassell, 162 F. App’x 178, 182 (3d Cir. 2006). Based on the foregoing, the Court recommends that the District Judge grant summary judgment to Defendants on the 42 U.S.C. § 1983 claim on statute of limitations grounds, and deny summary judgment to Davis on that claim. III. Supplemental Jurisdiction The § 1983 claim was the sole federal claim that permitted the district court to exercise federal question jurisdiction over the SAC. The only other explicit cause of action raised by Davis in the SAC was a slander of title claim under Virgin Islands law, given that her requests for declaratory judgment and a preliminary/permanent injunction, although denominated as “Counts,” were actually requests for relief. Because the Court has recommended that the § 1983 claim be dismissed before trial, the issue becomes whether the Court should exercise supplemental jurisdiction over the remaining state law claim. Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 29 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation The statute governing supplemental (previously known as pendant) jurisdiction, provides, in relevant part, that federal courts “shall have supplemental jurisdiction” over claims which are “part of the same case or controversy” as a claim over which the court exercises original jurisdiction. 28 U.S.C. § 1367(a). Subsection (c) of the statute provides, however, that a district court may, in its discretion, decline to exercise jurisdiction if “the district court has dismissed all claims over which it has original jurisdiction.” § 1367(c)(3). Section1367(c)(1) states that a district court may, in its discretion, decline to exercise supplemental jurisdiction over a local claim if “the claim raises a novel or complex issue of State law.” See De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 311 (3d Cir. 2003). In United Mine Workers v. Gibbs, 383 U.S. 715 (1966), the U.S. Supreme Court explained: It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them. Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well. Similarly, if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals. Id. at 726-27. The Third Circuit has held that supplemental jurisdiction “should be declined where the federal claims are no longer viable, absent extraordinary circumstances.” Shaffer v. Bd. of Sch. Dirs. of the Albert Gallatin Area Sch. Dist., 730 F.2d 910, 912 (3d Cir. 1984) (internal quotation marks omitted); see also Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 30 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation 173 (1997)) (“Depending on a host of factors, then—including the circumstances of the particular case, the nature of the state law claims, the character of the governing state law, and the relationship between the state and federal claims—district courts may decline to exercise jurisdiction over supplemental state law claims.”). A number of factors point to the district court declining supplemental jurisdiction over the slander of title claim. First, the legal standards that govern such a claim under Virgin Islands law have not been established. Older Virgin Islands cases cited the Restatement (Second) of Torts § 623A, to set forth the elements, while apparently equating the claim to the tort of “injurious falsehood.” See, e.g., Globe Elec., Inc. v. Chandi, No. ST-07-CV-648, 2011 WL 13389179, at *3 (V.I. Super. Apr. 8, 2011) (addressing slander of title claim and quoting Manns v. Leather Shop, 960 F. Supp. 925, 930 (D.V.I. 1997), which in turn quoted Rest. 2d Torts § 623A (1977) for the tort of “injurious falsehood”). Research has revealed no case where any local court has conducted an analysis pursuant to Banks v. International Rental & Leasing Corp., No. 11-cv-0037, 2011 WL 5299025 (V.I. Dec. 15, 2011),7 to determine the soundest rule consistent with Virgin Islands jurisprudence and policy that sets out the elements for a slander of title claim. Id. at *7 & n.9. More recent Virgin Islands cases refer to 7 In Banks v. Int'l Rental & Leasing Corp., the Supreme Court of the Virgin Islands held that when precedent is lacking on a common law rule, courts in the Virgin Islands must conduct what has become known as a “Banks analysis” to determine the applicable law in the Virgin Islands. A Banks analysis requires the balancing of three non-dispositive factors: (1) whether any U.S. Virgin Islands courts have previously adopted a particular rule, (2) the position taken by a majority of courts from other jurisdictions, and (3) which approach represents the soundest rule for the U.S. Virgin Islands. See, e.g., Halliday v. Great Lakes Ins. SE, No. 3:18- CV-00072, 2019 WL 3500913, at *5-14 (D.V.I. Aug. 1, 2019). Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 31 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation the tort of injurious falsehood, but have not conducted a Banks analysis either. See, e.g., Fahie v. Ferguson, Nos. ST-16-cv-00638, 00682, 2021 WL 7279012, at *10 (V.I. Super. Ct. Mar. 29, 2021) (resolving injurious falsehood claim based on two-year statute of limitations). Added to the dearth of governing case law is the fact that the parties have virtually ignored this issue in their cross-motions for summary judgment. The Defendants look to Davis’s non- compliance with the VITCA as providing a basis for summary judgment, and Davis cites no case law in support of summary judgment. Should Davis refile this claim in local court,8 that court should properly address this issue, updating Virgin Islands jurisprudence to set out the applicable law as a “matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.” Gibbs, 383 U.S. at 726. Second, even though this case is before the Court on cross-motions for summary judgment, suggesting less of an effect on judicial economy, convenience, and fairness to the parties than if the case was in the thick of the discovery process, the action is currently “before trial,” which is within the sphere of a Court’s permissible declination of supplemental jurisdiction. See id.; Gautier-James v. Hovensa, L.L.C., No. 06-cv-153, 2023 WL 4532194, at *3 (D.V.I. July 12, 2024) (declining to exercise supplemental jurisdiction over remaining state law claims years after the case had been filed and discovery had concluded).9 Should Davis 8 If a district court declines to exercise jurisdiction over a claim asserted under § 1367(a) and the plaintiff wishes to continue pursuing it, she must refile the claim in state court. Artis v. D.C., 583 U.S. 71, 76 (2018). 9 In Gautier-James, 2023 WL 4532194, the District Judge observed at length that case law has permitted courts to decline supplemental jurisdiction at later stages of litigation: Indeed, courts have declined to exercise supplemental jurisdiction even at later stages of litigation than exists here, including after the summary judgment phase. Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 32 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation re-file in state court, the parties’ central facts will remain the same. Discovery has been minimal because this case is based on documentation and the parties’ interpretations of local law. Thus, discovery will be easily transferred to the local court without much duplication of effort—except for the need to brief the slander of title claim—which could expedite state law proceedings. See Shaffer, 730 F.2d at 912 (“time already invested in litigating the . . . action is an insufficient reason to sustain the exercise of pendent jurisdiction.”). Finally, “the circumstances of the particular case,” Int’l Coll. of Surgeons, 522 U.S. at 173, counsel in favor of the court declining to exercise supplemental jurisdiction. The SAC, in essence, presents challenges to local Government officials based on local procedures set out in local statutes concerning local tax sales. Davis’s main objection is that she did not receive requisite notice under the local statute, which does not protect her interests as a purchaser or allow her to challenge the voiding of the tax sale. She contends that local officials acted improperly based on her reading of the local statute and thus she should be granted clear title to the Property under local law. The SAC, in only the most glancing way, See Guzzo v. Volt Mgmt. Corp., No. 1:19-CV-01360, 2022 U.S. Dist. LEXIS 5238, at *5 (M.D. Pa. Jan. 10, 2022) (“the principle that the court should not exercise supplemental jurisdiction over state-law claims when all the federal claims over which the court had original jurisdiction have been dismissed . . . applies even after the parties have conducted discovery or litigated motions for summary judgment.”); see also . . . MCF Servs., Inc. v. Ernest Bock & Sons, No. 05-1115, 2007 WL 4355388, at *4-5 (E.D. Pa. Dec. 22, 2007) (declining to exercise supplemental jurisdiction even though “discovery is completed, and the parties have briefed and argued Defendants’ motion for summary judgment” because a showing of extraordinary circumstances had not been made and comity favored allowing the state court to hear the state law claims). Id. at *4 (also citing Third Circuit case law). Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 33 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation refers to due process claims under the Constitution—barely enough to provide federal court jurisdiction—even though Davis never attempted to actually set forth a § 1983 cause of action in her SAC. The due process that she seeks is actually found under cases interpreting 33 V.I.C. § 2541, such as Benoit—one of the few cases that she relies on. Dkt. No. 116-1 at 7- 8. Because state issues have, since the inception of this case, “substantially predominate[d] . . . in terms of proof, of the scope of the issues raised, [and] of the comprehensiveness of the remedy sought,” and “constitutes the real body of a case, to which the federal claim is only an appendage,” the state claim “may fairly be dismissed.” Gibbs, 383 U.S. at 726, 727. In sum, no extraordinary circumstances warrant the exercise of supplemental jurisdiction here. Nor do “circumstances of judicial economy, convenience, [or] fairness to the parties provide an affirmative justification for doing so.” Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995). The Court recommends that the District Judge decline to exercise supplemental jurisdiction over the slander of title claim. IV. Declaratory Judgment Davis seeks declaratory judgment, a remedy which is available to federal courts by the Declaratory Judgment Act (“DJA”) Kelly v. Maxum Specialty Ins. Grp., 868 F.3d 274, 281 (3d Cir. 2017). The DJA is not a “jurisdictional grant,” and the court must have an independent basis for exercising jurisdiction. Id. The Virgin Islands also has a Declaratory Judgment Act, 5 V.I.C. §§ 1261-1272. Davis did not specify under which statute, federal or Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 34 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation local, that she was seeking declaratory judgment.10 Her SAC set forth a “claim” for declaratory judgment as Count I, as if it were a separate cause of action similar to § 1983 or slander of title. Dkt. No. 102. However, it is not a cause of action—it is a remedy. See Campbell v. Pa. Sch. Bds. Assoc., 336 F. Supp. 3d 482, 504 (E.D. Pa. 2018). (“Declaratory judgment is a remedy and not a cause of action.”). Declaratory judgment relief is only available if the party is successful on the underlying claim. As explained in USX Corp. v. Barnhart, 395 F.3d 161 (3d Cir. 2004): Appellants confuse the demand for relief with the claims on which that demand is based. While “[i]nasmuch as the demand for relief does not constitute part of the pleader's claim for relief, a failure to demand the appropriate relief will not result in a dismissal,” the converse is not true. Wright et al., supra, § 2664, at 180. That is, “the court cannot provide a remedy, even if one is demanded, when plaintiff has failed to set out a claim for relief.” Id. at 179; see also 10 James Wm. Moore et al., Moore's Federal Practice § 54.72(2), at 54–137 (3d ed. 2004) (“The Rule . . . is inapplicable when the pleader fails to demonstrate the proper substantive grounds for relief.”). Id. at 165-66; see also Campbell v. Pa. Sch. Bds. Ass'n, 336 F. Supp. 3d 482, 504 (E.D. Pa. 2018), aff'd on other grounds, 972 F.3d 213 (3d Cir. 2020) (a plaintiff is “required to prevail on the 10 A question appears to exist whether the DJA is even applicable in the District Court of the Virgin Islands. In Companion Assurance Co. v. Alliance Assurance Co., Ltd., 585 F. Supp. 1382 (D.V.I. 1984), the court stated: “By definition, the Federal Declaratory Judgments Act, 28 U.S.C. § 2201, 2202 (1976 & Supp. II 1978) does not apply to the District Court of the Virgin Islands,” although to the extent that the Virgin Islands Act and Federal Act were similar, decisions construing the Federal Act were persuasive.” Id. at 1384; see also Gen’l Offshore Corp. v. Farrelly, 743 F. Supp. 1177, n.4 (D.V.I. 1990) (citing Companion Assurance and opining that “it is by no means clear that the federal Declaratory Judgment Act applies to the Virgin Islands” and explaining the rationale for that position—that 28 U.S.C. § 2201 applies “to any court of the United States,” and, as defined by 28 U.S.C. § 451, the district court of the Virgin Islands is not included). This Court need not delve into this issue because Davis’s request for this remedy is resolved on different grounds. Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 35 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation merits to obtain declaratory relief.”) (internal quotation marks omitted). The DJA requires an “actual controversy,” 28 U.S.C. § 2201(a), which means “a claim that is justiciable under Article III of the United States Constitution.” Takeda Pharm. U.S.A., Inc. v. Mylan Pharm. Inc., No. 16-cv-987, 2017 WL 3326663, at *1 (D. Del. Aug. 3, 2017). Here, the Court has recommended that summary judgment be granted to Defendants on the § 1983 claim, and that supplemental jurisdiction be declined over the slander of title claim. Should the District Judge accept those recommendations, there will be no remaining substantive claim, federal or state, left in this action for the court to provide Plaintiff with a declaratory relief remedy. As a result, the Court recommends that the declaratory judgment count be dismissed. V. Preliminary/Permanent Injunction Count II of Davis’s SAC sets forth a request for a preliminary/permanent injunction. Dkt. No. 102. It is unclear whether that request is still viable, given that the District Judge denied Davis’s Amended Motion for a Preliminary Permanent Injunction, Dkt. Nos. 91, 92, weeks before Davis filed her SAC, Dkt. No. 102. That Amended Motion, Dkt. No. 16, incorporated the request for a Preliminary/Permanent Injunction that Davis set out in her Amended Complaint, Dkt. No. 11. The numbered statements in the request for preliminary/permanent injunction in the SAC repeat, word for word, allegations in the Amended Complaint, with a few additions. Although it is unclear on what basis Davis asks the Court in her SAC to grant relief it previously denied, she states in her Cross-Motion that she is “entitled to ownership and title to No. 44 Lowry Hill as a matter of law,” which invokes Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 36 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation injunctive relief, even though neither she nor the Defendants advanced any arguments on this issue in their cross-motions. But here too, the analysis that governed the declaratory judgment request for relief ultimately governs the preliminary/permanent injunction request for relief. Where the Court has recommended that Defendants be granted summary judgment on the § 1983 cause of action, and has recommended that supplemental jurisdiction be declined over the slander of title claim, it cannot now conclude that Davis has demonstrated a likelihood of success on the merits of the federal claim. And because a failure to show a likelihood of success on the merits alone is sufficient to defeat a preliminary injunction motion, the Court’s inquiry need not proceed any further on the federal claim, Colasurdo v. Town of Hammonton, N.J., No. 19- cv-6562, 2023 WL3077103, at *3 (D.N.J. Apr. 25, 2023) (internal quotation marks omitted), and there would be no remaining state claim on which to provide injunctive relief. Thus, the Court also recommends that the preliminary/permanent injunction request for relief be dismissed. CONCLUSION Accordingly, for the reasons set forth above, it is RECOMMENDED that: (1) the Defendants’ Motion for Summary Judgment on the 42 U.S.C. § 1983 cause of action, Dkt. No. 116, be GRANTED and Plaintiff’s Cross-Motion for Summary Judgment on the § 1983 cause of action, Dkt. No. 117, be DENIED; (2) the District Judge decline to exercise supplemental jurisdiction over the Slander of Title cause of action, and that the claim be DISMISSED; (3) Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 37 of 38 Davis v. Potter 1:22-cv-00062 Report and Recommendation the declaratory judgment and the preliminary/permanent injunction “causes of action” be DISMISSED; and (4) the Second Amended Complaint, Dkt. No. 102, be DISMISSED. Any objections to this Report and Recommendation must be filed in writing within fourteen (14) days of receipt of this notice, 28 U.S.C. § 636(b)(1), and must “specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis of such objection.” LRCi 72.3. Failure to file objections within the specified time shall bar the aggrieved party from attacking such Report and Recommendation before the assigned District Court Judge. See, e.g., Thomas v. Arn, 474 U.S. 140 (1985). ENTER: Dated: August 7, 2024 /s/ Emile A. Henderson III EMILE A. HENDERSON III U.S. MAGISTRATE JUDGE Case: 1:22-cv-00062-RAM-EAH Document #: 132 Filed: 08/07/24 Page 38 of 38