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SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN ) SONIA RICHARDSON AS PERSONAL ) REPRESENTATIVE OF THE SURVIVORS OF ) CIVIL NO. ST-17-CV-254 DIANA S. RICHARDSON, DECEASED. ) ) Plaintiff, ) vs. ) ) SCHNEIDER MEDICAL REGIONAL CENTER ) [sic] A/K/A ROY SCHNEIDER HOSPITAL, ) GOVERNMENT OF THE VIRGIN ISLANDS, ) VIRGIN ISLANDS GOVERNMENT HOSPITALS ) & HEALTH FACILITIES CORPORATION ) AND PATRICIA KAHN, D.O., ) ) ) Defendants. ) ) MEMORANDUM OPINION Pending before the Court is the J uly 17, 2017, Motion to Dismiss for failure to state a claim of Defendants the Government of the Virgin Islands and the Virgin Islands Government Hospitals and Health Facilities Corporation. Because Plaintiff has not pled a jurisdictional basis under either the Virgin Islands Medical Malpractice Act or the Virgin Islands Tort Claims Act, Plaintiff's Complaint will be dismissed without prejudice for lack of subject matter jurisdiction, rendering Defendants’ motion moot. FACTUAL & PROCEDURAL HISTORY On June 7, 2017, Plaintiff Sonia Richardson filed a Complaint, as personal representative of her daughter, Diana Richardson (deceased), asserting claims of negligence, wrongful death, . Sonia Richardson vy. Schneider Medical Regional Center [sic], et. Al Case No. ST-17-CV-254 Memorandum Opinion, December 4, 2017 and survival against all defendants.! On November 25, 2016, Diana Richardson was transported by ambulance to the emergency room at the Schneider Regional Medical Center, where she was treated and discharged with a diagnosis of gastroenteritis, dehydration, and syncope.” The following day, Richardson, 38, passed away in an ambulance in transit back to the Schneider Regional Medical Center. The Medical Examiner’s autopsy revealed the cause of death as a cardial temponande due to hemopericadium from aortic dissection.’ Plaintiff alleges that on November 25, 2016, Defendants failed to provide adequate medical care, and particularly, appropriate diagnostic testing for Richardson, resulting in the misdiagnosis of her condition and untimely death on November 26, 2016.5 On July 17, 2017, Defendants Government of the Virgin Islands and Virgin Islands Government Hospitals and Health Facilities Corporation, filed a motion to dismiss for failure to state a claim.® STANDARDS I. Subject matter jurisdiction The Superior Court has jurisdiction over civil actions under 4 V.LC. §76(a),’ actions against healthcare providers, provided pre-filing requirements are satisfied, under the Virgin ' Although the Complaint enumerates two counts—one for negligence against Patricia Kahn, D.O., and the other for negligence against the remaining three “Hospital Defendants” (the Schneider Regional Medical Center, the Government of the Virgin Islands, and the Virgin Islands Government Hospitals and Health Facilities Corporation) (see Compl. pgs. 6, 8)—it also asks for damages under 5 V.I.C. § 76 (wrongful death) and 5 V.I.C. § 77 (survival) (see Compl. Jf 42, 53). Thus, the Complaint sets forth individual claims for negligence, wrongful death, and survival against each of the four Defendants. * Compl. § 9-13. * td. 49 2, 9-14, 11d.415. 5 Id. Vf 9-30. * Plaintiff filed a Response on August 22, 2017. 7A VLC. § 76(a) provides, in pertinent part: “Subject to the original jurisdiction conferred on the District Court by section 22 of the Revised Organic Act of 1954, as amended, effective October 1, 199], the Superior Court shall have original jurisdiction in all civil actions regardless of the amount in controversy.” . Sonia Richardson v. Schneider Medical Regional Center [sic], et. Al Case No. ST-17-CV-254 Memorandum Opinion, December 4, 2017 Islands Medical Malpractice Act,* and actions against government defendants, when jurisdictional prerequisites are established, under the Virgin Islands Tort Claims Act.° IT. Mootness “A motion becomes moot when something occurs after a motion is filed that resolves the issues raised in that motion’ so that a “court’s decision on [the] pending motion [would] be ‘hypothetical or academic’ or without any ‘practical significance[.]’”!! “In that instance, the motion should be dismissed or denied as moot because a decision [would] have no practical impact in the case however the court decides the motion,”!2 ANALYSIS I. The Complaint fails to establish subject matter jurisdiction. *27 V.LC. § 166i(b) provides in part: “No action against a health care provider may be commenced in court before the claimant's proposed complaint has been filed with the Committee and the Committee has received the expert opinion as required by this section, provided, that if said opinion is not received by the Committee within ninety days from the date the complaint was filed with the Committee, the claimant may commence his action against the health care provider in court... .” ” Notably, the Virgin Islands Supreme Court has not yet decided whether the claim filing provisions of the Virgin Islands Tort Claims Act are jurisdictional or claims processing rules. See, ¢.g., Fleming v. Cruz, 62 V.1. 702, 722, n.15 (V.1. 2015) (“We leave a decision on whether the VITCA's claim-filing mandates are jurisdictional for another day”); Bonelli v. Gov't of the V.1., No. 2015-0047, 2017 V.1. Supreme LEXIS 44, at *19 (V.1. July 28, 201 7) C‘[T]he Superior Court did not consider whether the VITCA's deadlines represented jurisdictional limitations or claims processing rules. But the distinction is irrelevant to Bonelli, who has not sought the equitable tolling of the VITCA's filing deadlines. Therefore, regardless of what label we apply to the VITCA's deadlines, those deadlines still operate to preclude Bonelli’s fifth and sixth causes of action”). Thus, this Court remains bound by the Third Circuit's decision in Richardson v. Knud Hansen Mem'] Hosp., 744 F.2d 1007, 1009-1010 (3d Cir, 1984) (providing that the requirements of VITCA are jurisdictional): see also James-St. Jules v. Thompson, 2015 V.1. LEXIS 74, at *19 (VL Super. Ct. 2015) (recognizing that a decision of the Third Circuit rendered in its capacity as the “de facto court of last resort in the Virgin Islands” is binding on the Superior Court, and thus, the Third Circuit's decision in Richardson, ruling that the provisions of the VITCA are jurisdictional, is binding on the Superior Court). ” Der Weer v. Hess Oil V.L. Corp., 2014 V.1. LEXIS 22, at *11 (V.1. Super. Ct. 2014) (citations omitted). '' Id, at *12 (citing BLACK'S LAW DICTIONARY 1099 (9th ed. 2009)); see also id. at *12-13 (citing Opuraji v. NE. Auto-Marine Terminal, 437 Fed. Appx. 190, 193, n.1 (3d Cir. 2011) (“A motion is moot when a court is unable to fashion any form of meaningful relief’) and Carlock v. Kmart Corp., 227 Ga. App. 356, 489 S.E.2d 99, 104 (1997) (“A motion is moot when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.”)). 2 fd. at *13. - Sonia Richardson v. Schneider Medical Regional Center [sic], et. Al Case No. ST-17-CV-254 Memorandum Opinion, December 4, 2017 Although Defendants have not moved for dismissal for lack of subject matter jurisdiction under V.I.R. Civ. P. 12(b)(1), the Court’s review of the Complaint reveals a jurisdictional defect. A court may address the issue of subject matter jurisdiction sua sponte,'> and “[i]t is the plaintiff's burden to convince the court that the court has jurisdiction.”'* Here, the Complaint alleges subject matter jurisdiction under 4 V.LC. § 76, 5 V.LC. § 76, and 5 V.I.C. § 77. While 5 V.LC. § 76 and 5 V.I.C. § 77 authorize actions for wrongful death and survival, respectively, 4 V.LC. § 76(a) confers original jurisdiction upon the Superior Court in civil actions. A. The Virgin Islands Medical Malpractice Act Importantly, the Virgin Islands Medical Malpractice Act supersedes the general grant of jurisdiction under 4 V.1.C. § 76(a) and deprives the Superior Court of subject matter jurisdiction over an action against a health care provider who meets the requirements of 27 V.1.C. § 166a, until the pre-filing requirements set forth in 27 V.LC. § 166i(b) are satisfied.'5 27 V.LC. § 166i(b)-(c) provides, in pertinent part: (b) No action against a health care provider may be commenced in court before the claimant's proposed complaint has been filed with the Committee and the Committee has received the expert opinion as required by this section, provided, that if said opinion is not "8 See Drayton v. Drayton, 65 V.1. 325, 332 (V.I. 201 6); see also V.1. Waste Management Auth. v. Bovoni Investments, LLC, 61 V.1. 355, 363 (V.1. 2014). 4 Tyson v. Samuel, 2017 V1. LEXIS 79, at *3 (V.1. Super. Ct. May 24, 2017); see also Edward v. GEC, LLC, No. 2017-0025, 2017 V.1. Supreme LEXIS 46, at *14 (V.I. Aug. I, 2017) (providing that a party asserting jurisdiction bears the burden of establishing subject-matter jurisdiction); see also id. at *14-15 (“The requirement that the party asserting jurisdiction must prove the existence of subject-matter jurisdiction is not in tension with the rule that the affirmative of the issue be proved, since a party must typically prove the affirmative to establish subject-matter jurisdiction”). S See Brady v. Cintron, 55 V.1. 802, 820 (V.I. 2011) (finding that 27 V.1.C. § 166i provides non-waivable jurisdictional conditions that must be satisfied in order to vest the trial court with subject matter jurisdiction to hear a plaintiff's medical malpractice claims); see also Missar v. Bucher, 46 V.1. 15,21 (V.1. Terr. Ct. 2004) (holding that the provisions of the VIMMA are equally applicable to all health care providers in the Virgin Islands as defined by 27 V.1.C. § 166 so long as they meet the requirements of § !66a, and thus, ifa plaintiff does not comply with the pre-filing procedures set forth in 27 V.I.C. § 166i(b) before filing a medical malpractice suit against a health care provider who meets the requirements of 27 V.LC. § 166a, the Court lacks subject matter jurisdiction over the case). . Sonia Richardson y, Schneider Medical Regional Center [sic], et, Al Case No. ST-17-CV-254 Memorandum Opinion, December 4, 2017 received by the Committee within ninety days from the date the complaint was filed with the Committee, the claimant may commence his action against the health care provider in court... . (c) The proposed complaint shall be deemed filed when a copy is delivered or mailed by registered or certified mail to the Commissioner of Health, who shall immediately forward a copy to each health care provider named as a defendant at his last and usual place of residence or his office and said health care provider may file a proposed answer to the complaint to the committee within twenty (20) days. The proposed answer shall be deemed filed when a copy is delivered or mailed by registered or certified mail to the Commissioner of Health, who shall immediately forward a copy to the plaintiff. In addition, under the statute, “*[hJealth care provider’ means a person, corporation, facility or institution who must be licensed by this territory to provide health care or professional medical services including a medical, osteopathic, chiropractic or naturopathic physician, [or] hospital[,]”!® and within the foregoing definition, “‘[hJospital’ means a public or private institution licensed under Title 19, Virgin Islands Code, chapter 15.”!? Notably, with respect to a wrongful death action based upon medical malpractice, provided that a proposed complaint for an alleged negligent act underlying a wrongful death action is submitted to the Committee for expert review, a plaintiff need not present to the Committee a Separate proposed complaint for 1627 V.LC. § 166(c). "727 V.LC. § 166(d). . Sonia Richardson vy. Schneider Medical Regional Center [sic], et. AL Case No. ST-17-CV-254 Memorandum Opinion, December 4, 2017 wrongful death.'* Similarly, a Separate proposed complaint for a survival action apart from the underlying tort is not required.!° Here, provided that Defendants are licensed within the territory within the meaning of 27 V.LC. § 166(c), they are healthcare providers—Patricia Kahn, D.O., as an osteopathic physician, the Schneider Regional Medical Center, as a hospital, the Virgin Islands Government Hospitals and Health Facilities Corporation, as a corporation,2° and the Government of the Virgin Islands.?! As a result, in order to establish that the Superior Court has subject matter jurisdiction over the '8 See Hedlund y. Gov't of the V.1., 2015 V.1. LEXIS 108, at *5-6, *8 (V.1. Super. Ct. Sept. 10, 2015) (holding that Plaintiff's wrongful death action should not be considered to be a new ‘claim’ under the MMA that is separate and distinct from the decedent's personal injury claim and that requires additional expert review; further finding that the Superior Court has subject matter jurisdiction over wrongful death claims when the negligent acts submitted to the Committee for expert review to determine the occurrence of medical malpractice, in compliance with the jurisdictional requirements of the VIMMA, are the same negligent acts upon which Plaintiff's wrongful death action ts based). See generally, ¢.g., 5 V.1C. § 76(c) (providing that with respect to a wrongful death action, the survivors of a decedent may recover damages when the death of a Person is caused by a wrongful act or negligence and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued): 5 V.I.C. § 76(b)(1) (providing that ‘survivors’ mean the decedent's spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters). See generally, e.g., Gerald vy. RJ. Reynolds Tobacco Co., 2017 V1, LEXIS 99, at *35-40 (V.I. Super. Ct. July 5, 2017) (citing Crawford y. Daly, 55 V1. 66, 92 (V.I. Super. Ct. 2010)) (finding that a decedent's personal representative may simultaneously assert claims for wrongful death and survival); 5 V.I.C. § 77 (providing that the survival of a tort action arises out of a wrong resulting in physical injury to a person [decedent], or out of a statute imposing liability for such injury and does not abate by the death of the person injured); Der Weer v. Hess Oil Virgin Island Corp., 61 V.1. 87, 111 (V.L. Super. Ct. 2014) (finding that a decedent's personal representative may recover, on behalf of the decedent's estate, damages a deceased person may have suffered from a personal injury that are separate from, and even unrelated to, the damages of his survivors for wrongful death). 19 VLC. S 243(a) provides that the Virgin Islands Government Hospitals and Health Facilities Corporation “is a body corporate and politic constituting a public benefit corporation of the Government of the Virgin Islands.” Further, under 19 V.1.C. § 242, “[i]t is the purpose of the V.I. Governmental Hospitals and Health Facilities Corporation to . . . provide quality, comprehensive health care through the efficient management of hospitals and health facilities”. *! Courts in the Virgin Islands have treated the Government of the Virgin Islands as a health care provider. See, e.g., Espinosa v. Gov't of the V.1., 20 VI. 78, 81 (V.1. Terr. Ct. 1983) (recognizing that for purposes of the Medical Malpractice Act, the Government of the Virgin Islands has been held to be a “health care provider”) (citing Saludes v. Ramos, 744 F.2d 992 (3d Cir. 1984)); Kock v. Gov't of V.1., 744 F.2d 997, 999-1000 (3d Cir. 1984) (finding the Government of the Virgin Islands to be a health care provider, noting that mandatory medical malpractice insurance for the hospital was, in effect, insurance protection for the Government when it was doing business as a health care provider); Abdallah v. Callender, | F.3d 141, 143 (3d Cir. 1993) (notin g that under the VIMMA, a plaintiff must first file a proposed complaint with the Medical Malpractice Action Review Committee, as a prerequisite to bringing a medical malpractice action against any health care provider, including the Government of the Virgin Islands). . Sonia Richardson y. Schneider Medical Regional Center [sic], et. AL Case No. ST-17-CV-254 Memorandum Opinion, December 4, 2017 action, Plaintiff must plead facts demonstrating that the pre-filing requirements of 27 V.LC. § 166i are satisfied.2* Because the Complaint is devoid of facts establishing these jurisdictional prerequisites, the Court will dismiss the Complaint but permit Plaintiff an opportunity to amend it to include the appropriate jurisdictional allegations. B. The Virgin Islands Tort Claims Act A plaintiff who seeks to file an action against the Government of the Virgin Islands for the alleged medical malpractice of a governmental health care provider must comply with both the claim filing requirements of the Virgin Islands Medical Malpractice Act and those of the Virgin Islands Tort Claims Act. Generally, the VITCA provides immunity from liability to the Virgin Islands Government and its employees acting within the scope of their employment for negligent acts, but not grossly negligent acts.* Here, recognizing that defendants are * See 27 VLC. § 166i(a)-(e); see also James-St. Jules v. Thompson, 2015 V.1. LEXIS 74, at *8-9 (V.I. Super. Ct. 2015) (“Before filing a medical malpractice claim in the Superior Court against a health care provider, a prospective plaintiff must first comply with the procedural requirements of the MMA. These procedural requirements are set out in 27 V.I.C. § 166i. First, a prospective plaintiff must file a copy of its proposed complaint with the Medical Malpractice Action Review Committee (‘Committee’) by either delivering it or mailing it by registered or certified mail to the Virgin Islands Commissioner of Health (“Commissioner”). /d. § 166i(b) and (c). The Commissioner must then forward the proposed complaint to each health care provider named as a defendant who may file a proposed answer within twenty (20) days. /d. § 166i(c). After the expiration of the date for receipt of the defendant's proposed answer, the Committee must determine the type of medical experts necessary to review the malpractice claim. /d. § 166i(d). The medical expert must then review the plaintiff's medical records and the proposed legal briefs to submit an opinion to the Committee as to ‘whether or not the defendant acted or failed to act within the appropriate standards of medical care as charged in the proposed complaint.””). ?} As noted in Footnote No. 9, because the Virgin Islands Supreme Court has not addressed whether the provisions of VITCA are jurisdictional, this Court remains bound by the Third Circuit’s decision in Richardson v. Knud Hansen Memorial Hospital, 744 F.2d 1007, 1010 (3d Cir. 1984), ruling that the requirements of the Virgin Islands Tort Claims Act are jurisdictional, rather than claims processing rules, and thus, a medical malpractice claimant suing the Virgin Islands Government must comply with the provisions of both the Virgin Islands Medical Malpractice Act and the Virgin Islands Tort Claims Act prior to filing an action in the Superior Court. See also Yuxiang Peng v. Williams, 2017 V.1. LEXIS 118 at *4 (V.L. Super. Ct. July 24, 2017) (collecting cases that hold that failure to comply with the pre-filing requirements under the VITCA precludes a court from exercising subject matter jurisdiction over tort claims against the Virgin Islands Government); see generally, e.g., James-St. Jules vy, Thompson, 2015 V.1. LEXIS 74, at *19 (V.1. Super. Ct. 2015): Fleming v, Cruz, 62 V.1. 702. 722, n.15 (V.1. 2015); Bonelli v. Gov't of the V.L, No. 2015-0047, 2017 V.1. Supreme LEXIS 44, at *19 (V.I. July 28, 2017). “433 VLC. § 3408. Waiver of immunity from liability provides: “Sonia Richardson y. Schneider Medical Regional Center [sic], et, Al. Case No. ST-17-CV-254 Memorandum Opinion, December 4, 2017 governmental in nature?’ and considering that Plaintiff has not alleged that the acts of any of the Defendants were performed outside of the scope of governmental services or constituted gross negligence, Plaintiff must comply with the statute’s provisions prior to filing her action in the Superior Court against any of the government defendants2* Since Plaintiff has not pled facts (a) Subject to the provisions of section 3416 of this chapter, the Government of the United States Virgin Islands hereby waives its immunity from liability and action and hereby assumes liability with respect to injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of an employee of the Government of the United States Virgin Islands while acting within the scope of his office or employment, under circumstances where the Government of the United States Virgin Istands, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. The Government consents to have the liability determined in accordance with the same rule of law as applied to actions in the courts of the Virgin Islands against individuals or corporations; Provided, That the claimant complies with the provisions of this chapter, (b) The provisions of subsection (a) of this section shall not apply if the injury or loss of property is caused by the gross negligence of an employee of the Government of the United States Virgin Islands while acting within the scope of his office or employment. See also Bonelli v. Gov't of the V.1., 2015 V.1. LEXIS 29, at *] 1-12 (V.1. Super. Ct. Mar, 19, 2015) (holding that when a plaintiff did not file a notice of intention to file a claim in accordance with the VITCA within ninety days of the accrual of his injury, and also did not file a cause of action within two years after the accrual of his tort claims, defendant was entitled to judgment on the pleadings regarding plaintiffs tort claims). *5 The Schneider Regional Medical Center, as a governmental facility (Compl. 4), the Virgin Islands Government Hospitals and Health Facilities Corporation, as a public benefit corporation (19 V.LC. § 243(a)), and the Government of the Virgin Islands constitute government defendants. Notably, although the Complaint asserts that Patricia Kahn, D.O., was a practicing physician with privileges at the Schneider Regional Medical Center at the time of the incident (Compl. 7), the Complaint does not address whether Dr. Kahn was an employee of the government or a contractor. (33 V.1.C. § 3408 provides that a negligent or wrongful act or omission must be of an employee of the Government of Virgin Islands while acting within the scope of office or employment). 6 The pertinent provisions are: 33 V.I.C. § 3409. Time of filing claims and notices of intention to file claims No judgment shall be granted in favor of any claimant unless such claimant shal] have complied with the provisions of this section applicable to his claim: (b) a claim by an executor or administrator of a decedent who left him or her surviving a husband, wife or next of kin, for damages for a wrongful act, neglect or default, on the part of the Government by which the decedent's death was caused, shail be filed within ninety days after the appointment of such executor or administrator, unless the claimant shall within such time file a written notice of intention to file a claim therefor in which event the claim shall be filed within two years after the death of the decedent. In any event such claim shall be filed within two years after the death of the decedent: A claimant who fails to file a claim or notice of intention, as provided in the foregoing subsections, within the time limited therein for filing the notice of intention, may, nevertheless, in the discretion of the court. be permitted to file such claim at any time within two years after the accrual thereof, or in the case of a claim for wrongful death within two years after the decedent's death. The application for such permission shall be made upon motion based upon affidavits showing a reasonable excuse for the failure to file the notice of intention and that the Virgin Islands or its appropriate department or agency had, prior to the expiration of the time limited for the filing of the notice of intention, actual knowledge of the facts constituting the claim. The claim proposed to be filed, containing all of the information set forth in section 3410 of this title, shall accompany such application. No such application shall be granted if the court shalt find that the Government of the United States Virgin Islands has been substantially . Sonia Richardson v. Schneider Medical Regional Center [sic], et. AL Case No. ST-17-CV-254 Memorandum Opinion, December 4, 2017 demonstrating compliance with the pre-filing requirements of VITCA, as with Plaintiff's VIMMA claims, the Court lacks subject matter jurisdiction but will grant Plaintiff the opportunity to amend the Complaint to cure the pleading deficiencies. Il. Because the Court lacks subject matter jurisdiction to hear Plaintiff's action, Defendants’ motion to dismiss must be denied as moot. Defendants the Government of the Virgin Islands and the Virgin Islands Government Hospitals and Health Facilities Corporation ask the Court to dismiss the Complaint for failure to state a claim.?’ Because a court’s determination of a lack subject matter jurisdiction, and thus, the power to hear a case, renders a judgment on the merits void,2° and because this Court has recognized that it lacks subject matter jurisdiction, and consequently, the authority to hear prejudiced by the failure of the claimant to file such notice of intention within the time limited therefor. But if the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed. 33 V.LC. § 3410 Filing, service and contents of claim or notice of intention The claim or notice of intention shall be filed in the Office of the Governor and a copy shall be served upon the Attorney General and a written receipt therefor shall be issued with the date of filing indicated thereon. The claim shall state the time when and the place where such claim arose, the nature of same, and items of damage or injuries claimed to have been sustained and the total sum claimed. The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated. The claim and notice of intention to file a claim shall be verified. *? Motion to Dismiss, pgs. 5-6. ** See, e.g., Bell v. Hood, 327 U.S. 678, 682 (1946) (“Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy”); Tutt v. Blackman, 9 F. Supp. 2d 534, 536 (E.D. Pa. 1998) (“Before a court may decide the merits of a case, the court must first have jurisdiction to hear it”); Ala. Hosp, Asso. v. United States, 228 Ct. Cl. 176, 182 (1981) (“Far from being a minor procedural matter, a lack of subject matter jurisdiction goes to the very power of a court to hear a controversy; and thus, any ‘decision’ by a court lacking subject matter jurisdiction is a nullity, void ab initio”): Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-102 (1998) (holding it as improper to decide the merits of a case before finding jurisdiction, even if the merits question is more readily resolvable and the prevailing party on the merits would be the same as the prevailing party were jurisdiction denied). - Sonia Richardson v. Schneider Medical Regional Center [sic], et. AL. Case No. ST-17-CV-254 Memorandum Opinion, December 4, 2017 Plaintiff's action, a ruling on the merits with respect to the defense of failure to state a claim would be void. Accordingly, Defendants’ motion to dismiss must be denied as moot.2° CONCLUSION For the foregoing reasons, Plaintiff's Complaint will be dismissed without prejudice for lack of subject matter jurisdiction. Further, Defendant’s motion to dismiss alleging failure to state a claim will be denied without prejudice as moot. An Order consistent with this Opinion shall follow. Dated: December 4, 2017 ee ye “HON. MICHAEL C. DUNSTON JUDGE OF THE SUPERIOR COURT OF THE VIRGIN ISLANDS Lori B ynes-Tyson — ) v Court Clerk Supervisor sew oO. (7 *9 See 6A Charles Alan Wright, et al., Federal Practice and Procedure § 1350, 138-139 (3d ed. 2010) (“[I]f [a court] must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined by the judge.”) (citations omitted).