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SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX JEANORAH WILLIAMS INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE AND NEXT FRIEND TO BABY ZACHARY CADEN WILLIAMS Civil No SX 16 CV 446 P1 AINTIFFS ACTION FOR DAMAGES V JURY TRIAL DEMANDED VIRGIN ISLANDS HOSPITALS AND HEALTH FACILITIES CORPORATION Cite as 2021 VI Super 270 AND DR MICHELE B BERKELEY DEFFINDAENTS Appearances Mary Faith Carpenter, Esq l 108 King Sheet Suite 3 (mailing) 56 King Street Third Floor (physical) Chxistiansted St Croix U S Virgin Islands 00820 For Plamnfi‘ Royette Russell, Esq Virgin Islands Department Of Justice #213 Estate LaReine St Croix V100850 Fm Defendant MEMORANDUM OPINION WILLOCKS Presiding Judge ‘fll THIS MATTER is before the Superior Court of the Virgin Islands (Hereinafter court ) 0n Jeanorah Williams Individually and as Personal Representative and Next Friend to Baby Zachary Caden William 5 (hereinafter Plaintiff ) Motion For Extension of Time to Serve First Amended Complaint filed on March 13 2020 Virgin Islands Hospitals and Health Facilities  thlmms v Virgin Islands Hmpltalv & Health Facilities Corp & Dr Belkelex SX l6 CV 446 2021 VI Super 27U MEMORANDUM OPINION Corporation and Dr Michelle B Berkeley (hereinafter Defendants ) filed a Motion to Reconsider on April 25 2019 Plaintiff s Renewed Motion their for Sanctions on May 10 2019 ‘fl2 The court will GRANT Plaintiff 5 Motion For Extension of Time to Serve First Amended Complaint The Court will DENY Plaintiff s Renewed Motion for Sanctions Defendant 5 Motion for Reconsidelation is DENIED I FACTUAL AND PROCEDURAL BACKGROUND (II?) The Complaint was filed on August 10 2016 A Notice of Proof of Service on Defendants was filed on September 6 2016 A Motion to Dismiss was filed on September 20 2016 by Defendants An Opposition was filed on October 17 2016 This case was reassigned to Judge Willocks on October 31 2016 The court sun 5,0sz6 ordered a stipulated scheduling order be submitted within thirty (30) days on January 3 2017 The court Signed the Scheduling Order on March 15 2017 A Motion to Compel Defendants to Answer was filed on November 27 2017 A Motion to Deem Conceded was filed on August 21 2018 The court ordered on September 24 2018 that the telephonic status conference he continued ‘][4 An Order was tiled by the court on November 17 2018 granting Plaintiff 5 Motion to Compel On November 19 2018 this matter came before the coun on a hearing for review On November 29 2018 Defendant s fi1ed a Renewed Motion to Dismiss for Lack of Subject Matter Jurisdiction Defendant s filed a Motion for Relief from Order on November 29 2019 Plaintiff s filed a Motion for Sanctions on December 1 1 2018 An Opposition to Sanctions was filed on December 12 2018 Plaintiffs filed an Opposition to Defendant s Renewed Motion to Dismiss Wzllzams 1 V1) gm Island? Hospztalv & Health Fat (11116: Corp & Dr Berkeley SX 16 CV 446 2021 VI Super 27U MEMORANDLM OPINION on April 2 2019 Plaintiff filed an Opposition to Defendant 9 Motion for Relief from Older 011 April 2 2019 (115 A Mem01andum Opinion was issued by the court on Apt i1 15 2019 The court denied Defendant s Renewed Motion to Dismiss denied Defendant 9 Motion for Relief and ordered that the Defendant 5 respond to the Plaintiff 9 written discovery request within ten (10) days of the April 15 2019 and further ordered that the Parties had ten (10) days from April 15 2019 to file a stipulated scheduling order The court also denied Plaintiff’s Motions for Sanctions (H6 Defendant filed a Motion to Reconsider 0n Apri1 25 2019 Plaintiff s filed a Renewed Motion for Sanctions on May 10 2019 An Opposition to Reconsider was filed on May 21 2019 A Notice was filed on June 7 2019 for Stipulation to F116 Amended Complaint to Substitute Correct Party A Reply to Motion for Sanctions was filed on June 17 2019 117 An Ordel was filed by the court granting stipulation that the First Amended Complaint was deemed filed as of J une 18 2019 and the Plaintiff was ordered to serve Virgin Is1ands Hospitals and Health Facilities Corporation with a copy of the Amended Complaint within fourteen (14) days from June 18 2019 A Summons was issued on June 26 2019 to Cornell Williams as acting Governing Board Chairman of the Virgin Islandfi Hospitals and Health Facilities Corporation  Williams 1 Virgin Islands Hospztals & Health Facilities Corp & DI Berkeley SX 16 CV 446 2021 VI Super 27U MEMORANDUM OPINION II DISCUSSION 3 Defendants Motion to Reconsider (HS Defendant contends that the Memorandum Opinion and Order should be reconsidered for lack of subject matter jurisdiction ‘ The court will address the standard when analyzing a motion for reconsideration Under Rule 6 4 a Motion for Reconsideration is based on the need to prevent manifest injustice the term manifest injustice has been described as the result of a plain erior or an error in the trial court that is direct obvious and observable ’ There is no manifest injustice when the litigant merely disagrees with the court 7’ b Sublect Matter Jurisdiction <[[9 Pmsuant to Rule 12(b)(1) of the Virgin Islands Rules of Civil Procedure 21 party may assert the defense of lack of subject matter juxisdiction at any time 4 However compliance with jurisdictional statutes is necessary f01 the court to have subject matter jurisdiction over certain cases and where subject matter jurisdiction is lacking the court must dismiss the case Labeet L Amie Altemame Medical Gmup 72 V I 250 (Super Ct 2019) ([[10 Title 16 Section 166i(b) of the Virgin Islands Code says that no medical malpractice actions can be commenced in court until a proposed complaint is filed with the medical I The count has considered and reietted all of Defendant s arguments as‘ meritless but will address the equitable tolling argument 2 Czpuam I Opium: 2021 V I LEXIS 7 (Super Ct 2021) (citing In re Malibaa’h Asbestos Litigation Seizes 69 VI 394 427 (Super Ct 2018) (citing and quoting Cabru‘a PomtDet Inc 1 Emu; 52 VI 968 975 (DVI 2009)) 3 In re Wanbodlr 69 V I at 427 428(Citing and quoting B(JSIICi AT&Toj the VI 1112 F Supp 2d 731 45 V I 557» 559 (D V I 2004)) ‘VIR Civ P 12(1))(1)  William; L Virgm [tlamls Hatpltals & Health Faulme? Corp & Dr Berkeley SX 16 CV 446 2021 VI Super 27U MEMORANDUM OPINION malpractice action review committee (hereinafter MMARC ) and ninety (90) days have passed The Supreme Court has held that filing a proposed complaint with the MMARC is a jurisdictional requirement See Brad) v Cmtron 55 V I 802 815 (V I Sup Ct 201 1) If the Plaintiff fails to file a proposed complaint despite the instructions of the MMARC the court lacks subject matter jurisdiction and must dismiss ‘ ‘][11 Here Plaintiffs substantially complied with Title 16 Section 166i (b) of the Virgin Islands Code by filing a complaint with the MMARC and ninety (90) days had passed before the filing 0fthei1 second (SX 16 CV 446) case The first case filed on May 6 2016 (SX 16 CV 307) was dismissed without prejudice however Plaintiff was entitled to refile the claim 6 It is well known that a claim dismissed without prejudice can be refiled 7 Defendant tries to use the fact that Plaintiff agreed to the voluntary dismissal of the first claim as a way to dismiss their claim for lack of subject matter jurisdiction That argument is without merit Plaintiff filed a proposed complaint with the MMARC and ninety (90) days passed therefoxe they are entitled to file suit in court Thus simply put the requirements were substantially met for Title 16 Section 166i (b) by the filing of the second Complaint 0 Equitable Tolling ‘][12 The Defendant also argues that Plaintiff did not establish her entitlement to equitable tolling and that this would eliminate subject matterjurisdiction in this court In the Virgin Sl'i‘ladtt Cmmm 55Vl at8|5 l6(VI Sup Ct 2011) " See V I R Ci» P 4l(a) Advisory Committee Comment Rule 41 deals with voluntary and other dismissals 0t pendino actions As in otherjurisdictions it allows the Plaintitt to \oluntarily dismiss an action without court apprm a] before the opposing party serves either an answer or a motion tor summary judgment As elsewhere unless the notiLe 0r stipulation states otherwise the dismissal is without prejudice 7 Id Wzllzams 1 Vngm Islands Hospztalc & Health Fat (llttes Corp & Dr Berkelex SX 16 CV 446 2021 VI Super 27U MEMORANDUM OPINION Islands a statute of limitations may be equitably tolled in any case in which a first action was dismissed for any reason other than on the merits as long as three factors are met (I) the fiist action gave defendant timely notice of plaintiff 9 claim (2) the lapse of time between the first and second actions will not prejudice the defendant and (3) the plaintiffs acted reasonably and in good faith in prosecuting the first action and exercised diligence in filing the second action Jensen v VIrgm Islands Water and Power Auflzmm 52 V I 435 (V I 2009) (“13 Fiist the court finds that Defendant s faiane to reply to Plaintiff s October 17 2016 Opposition to Defendant 5 Motion to Dismiss (hereinafter Opposition ) would deem any equitable tolling argument waived See World Fresh Mmkets LLC 1 Henry 71 VI at 1175 (holding failure to file a reply brief waives the opportunity to respond to Henry 9 waiver arguments) Plaintiff’s clearly addressed an equitable tolling argument in then Opposition Thelefore failute to reply to Plaintiff 5 Opposition is reason enough to deny reconsideration 1114 Second even considering the equitable tolling argument the court would still find in favor of Plaintiff The Complaint was Voluntarily dismissed by Plaintiff It was dismissed without prejudice and therefore there is not an argument that can be made that Plaintiff would not be permitted to refile The second action was filed on August 10 2016 more than ninety (90) days after filing the proposed complaint with the committee Moreover the first case (8X 16 CV 307) likely operated as notice for Defendants because they knew that the first dismissal without prejudice would make it likely that a new Complaint could be filed after ninety (90) days  Williams I Virgm Island? Haspttals & Health Faultnes Corp & Dr Berkelet SX 16 CV 446 2021 VI Super 27U MEMORANDUM OPINION 3115 Lastly the court is speculative that there are any facts on the record indicating that Plaintiffs did not act in good faith to prosecute the first action like Defendant tries to point to Defendant continuously mentions that Plaintiff has not shown good faith in prosecuting this matter and should not reap the benefit of equitable tolling However the second action was diligently filed and the Defendant fails to point to any persuasive law that would tell this court to hold otherwise Thus the court will DENY Defendant 3 Motion for Reconsideration for these reasons (I Plaintiff’s Motion for Sanctions 1116 At this time the court will deny Plaintiff 5 Motion for Sanctions The court clearly ordered that 3 Scheduling Order was to be submitted within ten (l0) days after the filing of the April 15 2019 Order and it was never submitted 8 In addition to that Defendant has also not complied with the court 5 Order on April 15 2019 that they respond to discovety requests from Plaintiff 9 A Stipulated Scheduling Order must be submitted within 10 days from the filing of this Order In addition Defendant must answer discovery requests within 10 days If Defendant refuses to comply the court will order a show cause hearing will take place via Zoom where sanctions will be imposed 8 The Court has both statutory and inherent authority to impose sanctions Under Promulgation Order 20l7 0001 Rule 1 1(a) of the Virgin Islands Rules of Chit Pronedure now prmides that the wurl may impose fees and costs on an attorney it he or she tails to obey a scheduling or other pretrial order Here then, is no dispute that the Court 3 Order was clear See Court 5 Memorandum Opinion and Order 9 A sanction imposed under a court 5 statutory authority tor failure to comply with a Lourt order requires in addition to nonLOmplianLe that the order itselt was clear and ambiguous and that the party did not diligently attempt to wmply with the order in a reasonable manner See In Re Momheaa’ 6? V I 689 692 (V I 20l5)  Williams l Virgin Islands Hospitals & Health Faulltlé’A Corp & Di Berkeley SX 16 CV 446 2021 VI Super 27U MEMORANDUM OPINION e Plaintiff % Motion for Extension of Time to Serve First Amended Complaint ([[17 Plaintiff contends that the failure to serve Defendant resulted from a summons not being issued by the court such that it could be served The court finds that this is good cause to extend the time to Serve Fiat Amended Complaint ’0 Thus Plaintiff 5 Motion for Extension of Time to Serve First Amended Complaint is GRANTED III Conclusion ‘1[18 In sum the court finds that Plaintiff has met the requirements under 27 V I C §166i(b) therefore the court will deny Defendant s Motion to Dismiss for lack of subject matter jurisdiction Defendant 5 Motion for Reconsideration is denied Further sanctions will not be imposed unless Defendant fails to follow court ordem and continues to delay this case Plaintiff may amend their Complaint because good cause has been shown Accordingly an Older is attached 1° See Rule 6 0f the Vir°in Islands Rules of Ch i1 Procedure Willmms l Vugm Island? Hospitals & Health Fm times Corp & DI Berkeley SX 16 CV 446 2021 VI Super 27U MEMORANDUM OPINION SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX JEANORAH WILLIAMS INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE AND NEXT FRIEND TO BABY ZACHARY CADEN WILLIAMS Civil No SX 16 CV 446 PLAmTIFFs ACTION FOR DAMAGES V. JURY TRIAL DEMANDED VIRGIN ISLANDS HOSPITALS AND HEALTH FACILITIES CORPORATION Cite as 2021 VI Super AND DR MICHELE B BERKELEY DEFFADANI‘S ORDER ORDERED Defendant 3 Motion for Reconsideration is DENIED it is further ORDERED Plaintiff’s Motion for Sanctions is DENIED it is further ORDERED Plaintiff 9 Motion for Extension of Time to Serve First Amended Complaint is GRANTED it is further ORDERED the Parties have ten {10! (lags from the filing of this Order to file a Stipulated Schedulmg Order it is further ORDERED that Defendant has ten 1101days from the filing of this Order to respond to Plaintiff 5 written discovery request it is further Williams v Virgin Islands Hospitals & Health Faullnes Corp & D; Berkelex 8X 16 CV 446 2021 VI Super 27U MEMORANDUM OPINION Page 10 0f 10 ORDERED the Plaintiff has twenty one 5211 days to serve the First Amended Complaint DONE and so ORDERED this C1 day of March 2021 E HAROLD W L WILLOCKS Presiding Judge of the Superior Court