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Legal Memorandum: Motion to Dismiss for Failure of Service

Issue: Under the laws of the Virgin Islands, is the court required to dismiss with prejudice a medical malpractice complaint that was not served on the Medical Malpractice Committee?

Area of Law: Administrative Law, Administrative Law & Regulation (Federal and State), Litigation & Procedure, Personal Injury & Negligence
Keywords: Motion to dismiss; Failure to serve notice; Medical Malpractice Committee
Jurisdiction: Federal, Virgin Islands
Cited Cases: 619 F.2d 231; 54 F.3d 196
Cited Statutes: None
Date: 10/01/2004

A motion to dismiss for failure to serve a complaint on the Medical Malpractice Committee is in reality a motion to dismiss because the claim was premature.  See Spence v. Straw, 54 F.3d 196, 202 (3d Cir. 1995) (“The district court dismissed Spence’s section 504 claim for failure to exhaust administrative remedies, but failed to note whether that dismissal was with or without prejudice.  We believe that the complaint should be dismissed as premature, rather than untimely, and without prejudice to Spence’s potential to file suit again upon exhaustion of administrative remedies.”).  

Filing a complaint in court before the 90 days have lapsed regarding the administrative filing with the medical malpractice committee is a premature filing.  The Third Circuit, in Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 243-44 (3d Cir. 1980) found that despite a 60-day notice requirement for violation of the Federal Water Pollution Control Act, filing a suit only two days after giving notice to the relevant agencies did not require dismissal and refiling of the premature suit. 

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