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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN KREKKKEK SAMUEL OTTLEY, ) ) Plaintiff, ) ) vs. ) ) CASE NO. ST-06-CV-97 ESTATE OF VIOLA ELFREDA BELL ) a/k/a VIOLA BELL, a/k/a VIOLA ) ACTION FOR PARTITION ELFREDA OTTLEY a/k/a VIOLA ) ELFREDA BELL OTTLEY, a/k/a ) VIOLA BELL OTTLEY, a/k/a VIOLA ) OTTLEY, EBONI OTTLEY and ) DELROY GERARD, ) ) Defendants. ) ) CLIVE RIVERS, ESQUIRE DAVID A. BORNN, ESQUIRE Law Offices of Clive Rivers The Bornn Firm, PLLC Nisky Center Ste. 233 5079 Norre Gade, Ste. 1 St. Thomas, VI 00802 St. Thomas, VI 00802-6785 Attorney for Plaintiff Attorney for Defendants CHRISTIAN, ADAM G., Judge MEMORANDUM OPINION (Filed: October 8, 2013) Before the Court is the Defendants’ “Motion to Dismiss Plaintiff's Complaint.” Plaintiff has not responded to said motion. For the reasons set forth below, Defendants’ motion will be granted, and this civil action will be dismissed without prejudice for lack of subject matter jurisdiction. I. FACTUAL AND PROCEDURAL BACKGROUND. Plaintiff Samuel Ottley was married to Viola Elfreda Bell (“Viola Bell”).' During their union, they acquired certain real property in the U.S. Virgin Islands, to wit, Parcel No. 215-91 Estate Anna’s Retreat, No. 1 New Quarter, St. Thomas, VI (the “Subject Property”). At some time the parties were divorced pursuant to a divorce decree dated April 15, 1987, in which the 1 Ottley. The decedent also was previously known as Viola Bell, Viola Elfreda Ottley, Viola Bell Ottley, and Viola Samuel Ottley v. Estate of Viola Elfreda Bell, et al. Case No. ST-06-CV-97 Memorandum Opinion Family Division of this Court gave each spouse a fifty percent (50%) interest in the Subject Property, with some additional conditions which are not relevant to this opinion. Viola Bell subsequently died, and, on September 3, 2002, Defendant Eboni Ottley was appointed as the Administratrix for the probate estate. Plaintiff filed his original Complaint on February 23, 2006, and subsequently filed an Amended Complaint on March 21, 2006. Plaintiff requests that the Subject Property be partitioned and that any interest awarded to Defendants Eboni Ottley and Delroy Gerard from the Estate of Viola Bell be reduced by certain amounts Plaintiff claims he paid for real property taxes, insurance premiums, and mortgage payments. Defendants contend that Plaintiff's request fails to take into account the sums paid by Viola Bell to repair the damage the house sustained in Hurricanes Hugo, Marilyn, and Bertha. On December 7, 2006, the Court entered defaults against Defendants Eboni Ottley and Delroy Gerard.” On July 31, 2008, an appearance was entered on behalf of all Defendants. On that same date, Defendants Eboni Ottley, individually and as the Administratrix of the Estate of Viola Bell, and Delroy Gerard filed a motion to lift the defaults previously entered against them and a joint answer. Plaintiff never responded to Defendants’ motion, and the Court lifted the defaults entered against them by Order dated February 25, 2009.° By lifting the defaults, the Court impliedly accepted Defendants’ joint answer. Defendants now request that the Court dismiss this case on three grounds: 1) lack of subject matter jurisdiction; 2) failure to state a claim upon which relief can be granted; and 3) failure to join an indispensable party. Although Plaintiff has not responded to said motion, the Court must still determine whether Defendants are legally entitled to the relief sought.’ Il. LEGAL DISCUSSION. The Court first addresses the portion of Defendants’ motion to dismiss devoted to subject matter jurisdiction. It is settled that a trial court facing multiple defense motions should first consider any challenges to its subject matter jurisdiction.° “Subject matter jurisdiction defines the court’s authority to hear a given type of case....”° If the trial court lacks subject matter jurisdiction, the action must be dismissed.’ Any such dismissal should be without prejudice because a determination that subject matter jurisdiction is lacking does not constitute a decision on the merits of the case.* On a motion to dismiss for lack of subject matter jurisdiction, a court 2 The entries of default are dated December 6, 2006, and were entered by the Clerk of the Court on the following day. 3 This Order was entered by the Clerk of the Court on February 26, 2009. ‘ See, Anchorages Assocs. v. VI. Bd. of Tax Review, 922 F.2d 168, 174-76 (3d Cir. 1990) (trial court may not enter summary judgment when the motion is unopposed unless the movant demonstrates that it is entitled to judgment as a matter of law). ° See, In re FEMA Trailer Formaldehyde Prod. Liab. Litig., 668 F.3d 281, 286 (Sth Cir. 2012) (“The court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.”) (citing Ramming v. United States, 281 F.3d 158, 161 (Sth Cir.2001)). ° Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (citing United States v. Morton, 467 U.S. 822, 828 (1984)) ; SUPER. CT. R. 7, 12; FED. R. Civ. P. 12(h)(3). 8 Dennie v. Government, 55 V.1. 1237, 1246-47 (D.V.I. App. Div. 2011). 2 Samuel Ottley v. Estate of Viola Elfreda Bell, et al. Case No. ST-06-CV-97 Memorandum Opinion may consider items not presented in the complaint.” The burden of establishing that a trial court has subject matter jurisdiction rests on the plaintiff. '° Defendants argue that this Court lacks subject matter jurisdiction because Plaintiff has not met a statutory prerequisite. Specifically, they contend that Plaintiff's action should never have been commenced because the claim he filed in a related probate action has not yet been adjudicated.'! The applicable Virgin Islands statute provides, “An action against an executor or administrator shall not be commenced until the claim of the plaintiff has been duly presented to such executor or administrator and by him disallowed.”'? Defendants argue that the language “shall not be commenced until” indicates a legislative intention to impose a jurisdictional prerequisite for civil litigation against administrators and executors of probate estates. In support of their arguments, Defendants point the Court to two decisions of the District Court of the Virgin Islands (“District Court”).'? However, in Oat v. Sewer Enters., Ltd. the District Court premised its decision on the standard applicable to a failure to state a claim and not jurisdictional grounds.'* And, in Island Green, LLC y. Querrard, while the District Court discussed the legal standards applicable to both a motion to dismiss for lack of subject matter jurisdiction and one for failure to state a claim,’ it did not clearly articulate on which basis it founded its dismissal of the case against certain parties. On the appeal of /s/and Green, LLC v. Querrard, the United States Court of Appeals for the Third Circuit (“Third Circuit”) affirmed the dismissal of the claims against the probate estate and those acting on its behalf, but did not comment on whether the dismissal was properly based upon subject matter jurisdiction or failure to state a claim.'° Nevertheless, this Court agrees with Defendants that section 606(b) sets forth a jurisdictional mandate. The Virgin Islands Medical Malpractice Act (the “VIMMA”) contains language which is similar to the wording of section 606(b). The VIMMA provides, in pertinent part, that “No action against a health care provider may be commenced in court...” until certain administrative steps are completed. After a thorough analysis of the VIMMA and the language used therein, the Supreme Court of the Virgin Islands concluded that its terms created a statutorily-mandated condition precedent to litigation against a health care provider.'’? This Court determines that the same conclusion applies to a proper construction of section 606(b). 9 2013). 10 5B CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 1350 (Database Updated Apr. Chavayez v. Buhler, S.Ct. Civ. No. 2007-060, 2009 WL 1810914 at * 13 (V.I. June 25, 2009) (“When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion.”) (citations omitted). = The related probate estate is Jn Re Estate of Viola Elfreda Bell a/k/a Viola Elfreda Bell Ottley, Case No. ST-02-PB-35 (“Estate of Viola Bell”). 2 V.1. CODE ANN. tit. 15 § 606(b) (2012). B Defendants cite to /sland Green, LLC v. Querrard, Civil Action No. 09-0050, 2010 WL 1381415, 2010 U.S. Dist. LEXIS 32340 (D.V.I. Mar. 31, 2010), aff'd in part and vacated in part, 429 F. App’x 90 (3d Cir. 2011), and Oat v. Sewer Enters., Ltd., 46 V.1. 286 (D.V.I. 2004). "4 See, 46 V.I. at 289-90. 's See, 2010 WL 1381415 at * 6-7. "6 429 F. App’x at 92. I note that as to the remaining defendants in that case, the Third Circuit determined that the plaintiff's allegations failed to state a claim, but that leave to re-plead should have been granted. However, the opinion is unclear as to the standard applied to the dismissal of the estate. "7 Brady v. Cintron, 55 V.1. 802, 812-17 (2011). Samuel Ottley v. Estate of Viola Elfreda Bell, et al. Case No. ST-06-CV-97 Memorandum Opinion The language “shall not be commenced until” used in section 606(b) clearly prohibits a party from initiating a legal action against an executor or administrator of a probate estate unless certain steps first occur. Those steps are: 1) the filing of a claim in the probate action; and 2) the rejection of said claim. Section 606(b) has the beneficial effect of protecting executors and administrators from litigating the same issues in both the Magistrate Division of the Superior Court, which has jurisdiction over probate matters,'* and the Civil Division of this tribunal or the District Court at the same time. In this instance, Defendants have provided a copy of a claim Plaintiff filed in the Estate of Viola Bell. It is dated May 28, 2008. The Court has reviewed ENACT, and finds, contrary to Defendants’ assertion that Plaintiff's probate estate claim has not been addressed by the Administratrix, that said claim was rejected by her on June 21, 2012.'? Under the plain language of section 606(b) this Court could not have been seized with subject matter jurisdiction until after the date of rejection of Plaintiff's claim. In view of the sequence of events, this action is a nullity, and it cannot be cured by the submission of a supplemental or amended complaint.”° Therefore, this action must be dismissed for lack of subject matter jurisdiction as against Defendants the Estate of Viola Bell and Eboni Ottley, in her capacity as the Administratrix of said estate.”! This leaves the Court with the question of how to dispose of this action against Defendants Delroy Gerard Eboni Ottley in her individual capacity. As noted above, all Defendants filed an answer on July 31, 2008, and the instant motion was not filed until October 5, 2011. The Supreme Court of the Virgin Islands has declared that Rule 12 motions to dismiss, except for those addressing subject matter jurisdiction, must be filed before the movant files its answer.” Therefore, the requests to dismiss this civil action for failure to state a claim and for failure to join an indispensable party are not properly before the Court and cannot assist Defendants Gerard and Ottley. Upon review of the Amended Complaint, the Court notes that the only reason that Defendants Delroy Gerard and Eboni Ottley, individually, are parties to this case is because they are heirs of the deceased Viola Bell. Therefore, they will receive a distribution of a portion of the real property that is the subject of both this action and the Estate of Viola Bell. In his Amended Complaint, Plaintiff alleges, ‘8 See, 4 V.1.C. § 123(a)(4). ° This tribunal may take judicial notice of court records when considering a motion to dismiss for lack of subject matter jurisdiction. Auto-Owners Ins. Co. v. Tuggle, 289 F. Supp. 2d 1061, 1066 (W.D. Ark. 2003) (citations omitted). The Court will order that the rejected claim obtained through ENACT be made a part of the record of this case. a See, Brady v. Cintron, 55 V.1. at 818-20. . See, Island Green, LLC v. Querrard, 429 F. App’x at 91. 2 Smith v. Turnbull, $4 V.1. 369, 373-74 (V.I. 2010). In that case, the Supreme Court of the Virgin Islands did not specifically carve out the exemption for subject matter jurisdiction challenges under FED. R. CIv. P. 12(b)(1) mentioned above. However, it is settled that “Objections to a tribunal's jurisdiction can be raised at any time, even by a party that once conceded the tribunal's subject-matter jurisdiction over the controversy.” Sebelius v. Auburn Reg'l Med. Ctr., 133 S.Ct. 817, 824 (2013). 4 Samuel Ottley v. Estate of Viola Elfreda Bell, et al. Case No. ST-06-CV-97 Memorandum Opinion “That any just and equitable division of the premises ought to take into account the contributions that should have been made to the expenses associates with the taxes, insurance, and mortgage on the premise (sic) since 1996, by Mrs. Viola Bell Ottley, her estate and/or her heirs Eboni Ottley and Delroy Gerard.” The distribution of probate estate property is vested in the Magistrate Division of this Court,”4 and the Estate of Viola Bell was filed well before this case was filed. To adjudicate Plaintiff's claims for relief against Defendants Delroy Gerard and Eboni Ottley, individually, in this matter could interfere with the Magistrate Division’s ability to distribute the assets of the Estate of Viola Bell in an organized and consistent manner. Further, there is a risk of inconsistent determinations of the same issue between the Civil Division and the Magistrate Division, and principles of judicial economy warn against two tribunals, or two divisions within one tribunal, deciding the same issues. Thus, the claims against Defendant Delroy Gerard and Eboni Ottley, individually, are inextricably intertwined with the claims over which this Court has already concluded it lacks subject matter jurisdiction. Because of this undeniable connection between Plaintiffs claims against Defendant Delroy Gerard and Eboni Ottley, individually, and those over which this Court lacks subject matter jurisdiction, the Court concludes that it is appropriate to also dismiss those claims.”° Ill. CONCLUSION. For the reasons set forth above, the Court concludes that it lacks subject matter jurisdiction over Plaintiff's claims against Defendants the Estate of Viola Bell and Eboni Ottley, in her capacity as the Administratrix of that probate estate. Additionally, Plaintiffs claims against Defendants Delroy Gerard and Eboni Ottley, in her individual capacity, are inextricably intertwined with the matters over which this Court lacks jurisdiction. Therefore, the Court will grant Defendants’ present motion and dismiss all of Plaintiff's claims without prejudice in an order of even date. Dated: October 6 , 2013 on. Adam G. Christian ATTEST: Judge of the Superior Court Venetia H. Velazquez, Esq. of the Virgin Islands Clerk of the Court Donna D. Donovan p) 4 Acting Court Clerk Supervisor ( / % i Plaintiff's Amended Complaint at § 24. i. See, 4 V.1.C. § 123(a)(4). *s See, Blake v. Cnty. of Kaua'i Planning Comm'n, 284 P.3d 221, 2012, No. CAAP-11-0000342, 2012 WL 3600347 at * 3 (Haw. Ct. App. Aug. 21, 2012) (unpublished opinion), cert. granted, No. SCWC-1 1-0000342, 2012 WL 6634128 (Haw. Dec 20, 2012).