Sukow v. Clarke

Citation Codes

Equivalent Citations

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Docket Number

Civil No. 2010-102

Attorney(S)

Vincent A. Colianni, Esq. Colianni & Colianni St. Croix, VI For the plaintiffs, Glenn S. Greene, Esq. United States Department of Justice Washington, DC For the defendants.

Judges

Curtis V. Gómez

Acts

The Public Health And Welfare — Civil Rights — Generally — Proceedings In Vindication Of Civil Rights
Judiciary And Judicial Procedure — District Courts; Jurisdiction — Jurisdiction And Venue — United States As Defendant
Judiciary And Judicial Procedure — Evidence; Documentary — Procedure — State And Territorial Statutes And Judicial Proceedings; Full Faith And Credit

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Smart Summary

Factual and Procedural Background

On September 7, 2008, ATFE Special Agent William G. Clarke shot and killed Marcus Sukow. On September 7, 2010, Dale and Jan Sukow, acting as representatives of Marcus Sukow’s estate, filed claims under Bivens v. Six Unknown Named Agents and the Federal Tort Claims Act. [1][2]

In April 2012, Dale Sukow petitioned the Superior Court of the Virgin Islands for appointment as personal representative, stating that Marcus Sukow had been divorced. The Superior Court appointed Dale retroactively to the date this action began. It was later established, and conceded by the Sukows, that Marcus was married to Courtney Wallis when he died. [3][4]

Clarke and the United States moved to dismiss for lack of standing or, alternatively, to stay the proceedings until the proper personal representative was determined. [5][4]

Legal Issues Presented

Whether Dale Sukow had Article III standing to pursue the claims as the court-appointed personal representative despite the allegedly defective appointment. [6][7]
Whether the Superior Court’s appointment was void for lack of jurisdiction, such that this Court could disregard it. [8][9]
Whether the proceedings should be stayed pending resolution of the proper personal representative. [10]

Arguments of the Parties

Defendants’ Arguments

Clarke and the United States argued that the evidence showed the plaintiffs lacked standing because Dale Sukow was not the appropriate personal representative. [4][6]
Alternatively, they requested a stay while the issue of the appropriate representative was resolved. [10]

Plaintiffs’ Arguments

The Sukows argued that Dale Sukow had standing because the Superior Court had appointed him personal representative of the estate. [7]

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)	Authority under which the plaintiffs sought relief.	The plaintiffs asserted a Bivens claim arising from Marcus Sukow’s death. [2]
Doe v. Goldstein's Deli, 82 F. App'x 773 (3d Cir. 2003)	Distinguishes facial and factual jurisdictional attacks and places the jurisdictional burden on the plaintiff.	The Court treated defendants’ standing challenge as a factual attack and stated that it could consider evidence outside the pleadings. [11][12]
Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884 (3d Cir. 1977)	Describes facial and factual challenges to subject-matter jurisdiction.	Cited through Goldstein's Deli in defining the jurisdictional inquiry. [11]
CNA v. United States, 535 F.3d 132 (3d Cir. 2008)	A factual attack concerns the actual existence of jurisdiction, and no presumption of truthfulness attaches to the plaintiff’s allegations.	The Court weighed evidence beyond the pleadings. [11]
McNutt v. General Motors Acceptance Corp., 298 U.S. 178 (1936)	The plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence.	Used to state the plaintiffs’ burden on the standing challenge. [12]
Makarova v. United States, 201 F.3d 110 (2d Cir. 2000)	The plaintiff must establish jurisdiction by a preponderance of the evidence.	Cited with McNutt for the governing burden. [12]
Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269 (2009)	Article III’s case-or-controversy requirement is satisfied only where the plaintiff has standing.	Provided the constitutional framework for evaluating the defendants’ challenge. [6]
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)	Standing requires injury in fact, causation, and redressability.	The Court used these elements in assessing the plaintiffs’ standing. [13]
Carringer v. Rodgers, 293 F.3d 1299 (11th Cir. 2002)	State law determines whether a civil-rights claim survives the victim’s death.	Supported applying Virgin Islands law to the survivability and representative issue. [14]
Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961)	Related authority concerning state law and survival of civil-rights claims.	Cited through Carringer. [14]
Molzof v. United States, 502 U.S. 301 (1992)	State law determines whether a spouse may pursue claims under the FTCA.	Supported applying Virgin Islands law to the FTCA claims. [14]
Mingolla v. Mingolla Min. & Mfg. Co., 893 F. Supp. 499 (D.V.I. 1995)	The personal-representative requirement consolidates survivors’ claims into one lawsuit.	The Court explained that the Virgin Islands statute does not eliminate survivor rights. [15]
Leonard v. Government of the Virgin Islands, 17 V.I. 169 (V.I. Terr. Ct. 1980)	Supports the purpose of requiring survivors to assert claims in a single action.	Cited through Mingolla. [15]
Hatchette v. WICO, Ltd., 17 V.I. 549 (D.V.I. 1980)	A personal representative must be court-appointed, with statutory priority rules governing appointment.	Used to explain Virgin Islands appointment law. [16]
In re Estate of Ledee, 37 V.I. 37 (V.I. Terr. Ct. 1997)	A surviving spouse generally has priority, and interested heirs must receive notice or provide waivers; failure to follow the procedure does not necessarily require dismissal.	The Court found that Dale’s failure to identify or notify Wallis made the appointment potentially voidable, but not necessarily void. [17][18][8]
In re Guardianship of Smith, 54 V.I. 517 (V.I. 2010)	Only void orders may generally be collaterally attacked; statutory procedures can be jurisdictional when expressly required.	The Court used the decision to distinguish procedural defects from jurisdictional defects. [9][19]
People ex rel. Emmerson v. Lee, 143 N.E. 196 (Ill. 1924)	Authority cited regarding collateral attacks on void orders.	Cited through In re Guardianship of Smith. [9]
Morrison v. Bestler, 387 S.E.2d 753 (1990)	Ordinary procedural errors do not ordinarily create jurisdictional defects rendering an order void.	Supported the conclusion that the appointment’s defects did not necessarily invalidate jurisdiction. [19]
Mercer v. Bryan, 53 V.I. 595 (V.I. 2010)	When a statute establishes the time for appeal or review, timeliness is jurisdictional.	Cited as an example of a statutory procedure that can be jurisdictional. [19]
Reese Bros., Inc. v. United States, 447 F.3d 229 (3d Cir. 2006)	The word “and” ordinarily has a conjunctive meaning.	Supported the interpretation of the Virgin Islands statute requiring separate allegations concerning jurisdictional facts and heirs. [20]
Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328 (11th Cir. 2005)	The ordinary meaning of “and” is conjunctive unless context dictates otherwise.	Cited through the statutory-interpretation analysis. [20]
Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295 (3d Cir. 2011)	Statutes should be examined as a whole.	The Court read the appointment provisions together rather than treating Section 232 in isolation. [21]
Rosenberg v. XM Ventures, 274 F.3d 137 (3d Cir. 2001)	Courts should give meaning to every statutory word and avoid rendering language superfluous.	Supported the Court’s interpretation of Sections 232 and 236. [21]
United States v. Alaska, 521 U.S. 1 (1997)	Statutory language should not be rendered superfluous.	Cited through Rosenberg. [21]
United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544 (1996)	Statutory language should be given effect.	Cited through Rosenberg. [21]
First Bank Nat'l Ass'n v. FDIC, 79 F.3d 362 (3d Cir. 1996)	Courts should avoid interpretations making statutory language superfluous.	Cited through Rosenberg. [21]
Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976)	Federal courts have a virtually unflagging obligation to exercise the jurisdiction conferred on them.	The Court declined to stay the case merely to relitigate the territorial appointment issue. [10]

Court's Reasoning and Analysis

The Court treated the defendants’ challenge as a factual attack on subject-matter jurisdiction. It therefore could consider evidence outside the pleadings, and the Sukows bore the burden of establishing jurisdiction by a preponderance of the evidence. [11][12]

Because standing is required by Article III, the Court identified injury in fact, causation, and redressability as the governing constitutional elements. The central dispute, however, concerned whether Dale Sukow was legally authorized to assert the estate’s claims. [6][13]

The Court applied Virgin Islands law because state law governs whether civil-rights claims survive the victim’s death and whether the FTCA permits the asserted claims. Virgin Islands law requires wrongful-death actions to be brought by the decedent’s personal representative, and a personal representative must be appointed by a court. [14][15][16]

Dale’s appointment was procedurally defective because his petition incorrectly stated that Marcus was unmarried and did not give Courtney Wallis an opportunity to object. Under In re Estate of Ledee, those defects could make the appointment voidable. [17][18][8]

The Court distinguished a voidable judgment from a void judgment. A mistake generally makes an order voidable, while an order is void only when the issuing court lacked subject-matter or personal jurisdiction. Under the full-faith-and-credit statute, this Court had to recognize the Superior Court’s order unless it was void. [9]

The Court then examined whether the Superior Court lacked jurisdiction. Section 232 requires a petition to state jurisdictional facts and identify known heirs. Reading Sections 232 and 236 together, the Court concluded that identifying or notifying every heir was not a jurisdictional prerequisite. The statutes contemplated that heirs might be notified at the court’s discretion and placed some responsibility on heirs to participate in the appointment process. [22][20][23][21]

Accordingly, Dale’s failure to list or notify Wallis did not deprive the Superior Court of jurisdiction. Wallis also later submitted a declaration stating that she did not object to Dale’s appointment. [21][24]

Because Dale held an appointment that was facially valid and not void for lack of jurisdiction, the Court found that the Sukows had established standing. The Court also rejected a stay: whether Dale was ultimately the most appropriate representative did not affect standing so long as the appointment remained nonvoid, and the federal court had an obligation to exercise its jurisdiction. [25][10]

Holding and Implications

The motion to dismiss was denied, and the alternative request for a stay was also denied. The Court held that Dale Sukow had standing because the Superior Court’s appointment of him as personal representative was not void for lack of jurisdiction. [25][10]

The case proceeded in federal court. The Court did not stay the action to permit relitigation of the territorial appointment issue, and the opinion set no broader precedent beyond applying the cited jurisdictional and Virgin Islands-law principles to these parties. [10]

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DALE and JAN SUKOW as PERSONAL REPRESENTATIVES FOR THE ESTATE OF MARCUS SUKOW, Plaintiffs, v. WILLIAM G. CLARKE, in his indi

Curtis V. Gómez

ATTORNEYS:

Vincent A. Colianni, Esq.
Colianni & Colianni
St. Croix, VI

For the plaintiffs,

Glenn S. Greene, Esq.
United States Department of Justice
Washington, DC

For the defendants.

MEMORANDUM OPINION GÓMEZ, C.J.

Before the Court is the motion of the defendants to dismiss on the ground that the plaintiffs lack standing; or, in the alternative, to stay the proceedings until such time as the issue of standing may be resolved.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 7, 2008, the defendant William G. Clarke ("Clarke"), a Special Agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATFE"), shot and killed Marcus Sukow.

On September 7, 2010, the plaintiffs Dale and Jan Sukow (collectively, the "Sukows"), acting as representatives of the Estate of Marcus Sukow, initiated this action. They seek relief pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) and the Federal Tort Claims Act for injuries stemming from the allegedly wrongful death of Marcus Sukow.

On April 30, 2012, Dale Sukow petitioned the Superior Court of the Virgin Islands (the "Superior Court") for an order appointing him as personal representative of the Estate of Marcus Sukow (the "Petition"). In that Petition, Dale Sukow represents that "[Marcus Sukow] was divorced at the time of his death." (Defs.' Ex. D. ¶ 4.) Thereafter, on May 17, 2012, the Superior Court appointed Dale Sukow as personal representative of the Estate of Marcus Sukow. The appointment was made effective retroactively to the date of the initiation of this case.

It has subsequently been revealed, and the Sukows now concede, that at the time of his death Marcus Sukow was married to Courtney Wallis. In light of this information, the defendants Clarke and the United States of America (the "United States") now move for a dismissal or a stay of these proceedings on the ground that Dale Sukow is not the appropriate personal representative of the Estate of Marcus Sukow.

II. DISCUSSION

Clark and the United States challenge this Court's jurisdiction on the basis of evidence which undermines the jurisdictional allegations of the Amended Complaint. Subject-matter jurisdiction may be challenged by either "a facial attack on the complaint," Doe v. Goldstein's Deli, 82 F. App'x 773, 775 (3d Cir. 2003) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977), or a factual challenge, which "question[s] the existence of subject matter jurisdiction in fact, apart from the pleadings." Id. "The latter concerns 'an alleged pleading deficiency' whereas a factual attack concerns 'the actual failure of a plaintiff's claims to comport factually with the jurisdictional prerequisites." CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008). Accordingly, in considering a factual attack, the court must "weigh the evidence"--including evidence outside of the pleadings--"and satisfy itself as to the existence of its power to hear the case." Goldstein's Deli, 82 F. App'x at 775; see also CNA, 535 F.3d at 139 (noting that in a factual challenge, "no presumption of truthfulness attaches to the allegations of the plaintiff").

Regardless of the form of the challenge, "[t]he plaintiff always bears the burden of convincing the court, by a preponderance of the evidence, that the court has jurisdiction." Goldstein's Deli, 82 F. App'x at 775 (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).

The basis for Clark and the United States' factual attack on this Court's jurisdiction is that the Sukows lack standing. Article III, Section 2 of the United States Constitution restricts "judicial power" to the resolution of "Cases" and "Controversies." See Sprint Commc'ns Co., L.P. v. APCC Servs., Inc. , 554 U.S. 269, 273 (2009). "That case-or-controversy requirement is satisfied only where a plaintiff has standing." Id. To establish Article III standing, a plaintiff must allege:

(1) an injury in fact (i.e., a "concrete and particularized" invasion of a "legally protected interest"); (2) causation (i.e., a "fairly . . . trace[able]" connection between the alleged injury in fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is "likely" and not "merely speculative" that the plaintiff's injury will be remedied by the relief plaintiff seeks in bringing suit).

Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (further quotation omitted))

III. ANALYSIS

The Sukows argue that Dale Sukow has standing to bring this claim because he was the appointed personal representative of the Estate of Marcus Sukow.

A federal court must look to the law of the state in which it sits to determine whether a civil-rights claim may survive the death of the victim. See 42 U.S.C. § 1988(a); Carringer v. Rodgers, 293 F.3d 1299, 1301 (11th Cir. 2002) (citing Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961)) (certifying the question of standing to pursue a Section 1983 claim to the Georgia Supreme Court). Similarly, the liability of the United States under the Federal Tort Claims Act ("FTCA") is contingent on state law. See 28 U.S.C. § 1346(b); Molzof v. United States, 502 U.S. 301, 312 (1992) (noting that state law would determine whether a spouse had standing to pursue claims on behalf of her permanently comatose husband under the FTCA).

In the Virgin Islands, a tort or other wrongful act that results in the death of the victim survives and is not abated by the victim's death. V.I. CODE ANN. tit. 5, § 76(d). Such an action "shall be brought by the decedent's personal representative . . . ." Id. This provision does not eliminate the rights of survivors or beneficiaries. It was intended instead merely to "eliminate multiple suits arising out of the decedent's death by 'forcing all survivors to assert their claims in a single lawsuit.' " Mingolla v. Mingolla Min. & Mfg. Co. , 893 F. Supp. 499, 505 (D.V.I. 1995) (quoting Leonard v. Government of the Virgin Islands, 17 V.I. 169, 172 (V.I. Terr. Ct. 1980)).

A personal representative is an "executor, administrator, successor personal representative, or special administrator of a decedent's estate or a person legally authorized to perform substantially the same function [as an estate administrator]." V.I. CODE ANN. tit. 15, § 1251b(m). In the Virgin Islands, a personal representative must be appointed by a court. See V.I. CODE ANN. tit. 15, § 236; Hatchette v. WICO, Ltd., 17 V.I. 549, 551 (D.V.I. 1980). In determining who shall be a personal representative, the court must give first priority to "the widow or next of kin, or both, in the discretion of the court . . . ." V.I. CODE ANN. tit. 15, § 236(a)(1); see also Hatchette, 17 V.I. at 551 (applying section 236 in a wrongful death action).

"Where the deceased is survived by a spouse, Section 237 of Title 15 [of the Virgin Islands Code] dictates that the spouse have priority over the other persons named in Section 236, unless the spouse does not apply with[in thirty days of the decedent's death], or [the spouse] is proven unqualified or incompetent, or there has been some testamentary disposition naming another as the estate's administrator." In re Estate of Ledee, 37 V.I. 37, 40 (V.I. Terr. Ct. 1997) (citing V.I. CODE ANN. tit. 15, § 237.) Where a spouse has not petitioned to be appointed personal representative, another person seeking such appointment must serve the spouse and "the remaining heirs with a copy of [the] Petition" or else provide "individual waivers." Id.

In In re Estate of Ledee, 37 V.I. 37 (V.I. Terr. Ct. 1997), the son of a decedent sought to be appointed the personal representative of the decedent's estate. The court first noted that the decedent was married at the time of her death. Id. at 40. As the decedent's spouse did not petition to be appointed personal representative within thirty days of the decedent's death, "the [son] and [the spouse] st[ood] on equal footing . . . ." Id. However, in filing his petition, the son had failed to serve "[the spouse] or the remaining heirs with a copy of his Petition . . . , [and] has [not] provided individual waivers." Id. at 41. The court thus denied the son's petition, but it did not dismiss the action. Instead, it granted the son fifty days to serve the petition on the spouse and remaining heirs and thereafter resubmit his petition. Id. at 41, 45.

In the present case, Dale Sukow in his petition to be appointed personal representative averred that Marcus Sukow was unmarried at the time of his death. As Marcus Sukow was in fact married, and as Marcus Sukow's spouse, Courtney Wallis ("Wallis"), was not given an opportunity to object to the appointment of Dale Sukow as personal representative, Dale Sukow failed to comply with the service provision of the applicable law. See Ledee, 37 V.I. at 41. Additionally, the Superior Court appointment was made on the basis of an incorrect statement regarding the marital status of the decedent. The appointment of Dale Sukow might thus be arguably clouded and voidable.

However, our inquiry cannot end here, for Dale Sukow was granted a facially valid, if voidable, appointment. A judgment based on mistake is "merely" voidable. See RESTATEMENT (SECOND) OF JUDGMENTS, §§ 68(3) (1980). By contrast, a judgment is void only if the issuing court lacks subject matter jurisdiction or personal jurisdiction over the affected party. See RESTATEMENT (SECOND) OF JUDGMENTS, §§ 1, 81 (1980). This distinction is significant because, under Section 1738, Title 28 of the United States Code, the Court is obligated to give orders of the Virgin Islands courts "the same full faith and credit . . . as they have by law or usage in [the Territory of the Virgin Islands]." 28 U.S.C. § 1738. In the Virgin Islands, an order of the Superior Court may only be collaterally attacked if it is void. See In re Guardianship of Smith, 54 V.I. 517, 525-26 (V.I. 2010) (citing People ex rel. Emmerson v. Lee, 143 N.E. 196 (Ill. 1924)).

"Ordinarily, procedural errors--no matter how egregious--will not constitute jurisdictional defects that render a judgment or order void." Id. at 526 (citing Morrison v. Bestler, 387 S.E.2d 753, 756 (1990) (citing RESTATEMENT (SECOND) OF JUDGMENTS, § 11 (1980))). "However . . . when a statute establishes a specific procedure for invoking the Superior Court's jurisdiction, the failure to follow that procedure deprives the Superior Court of its jurisdiction." Id. (holding that procedures in incompetency proceedings--such as serving the ward or holding a hearing within a certain period of time--must be followed strictly) (citing Mercer v. Bryan, 53 V.I. 595, 599 (V.I. 2010) ("When the time to appeal or seek review is established by statute, timeliness is a jurisdictional issue . . . .")).

A petition for appointment as a personal representative must include "the facts necessary to give the court jurisdiction, and the names, age, and residence, so far as known of [the decedent's] heirs." V.I. CODE ANN. tit. 15, § 232 ("Section 232") (emphasis supplied).

"The usual meaning of the word 'and' . . . is conjunctive, and 'unless the context dictates otherwise, the 'and' is presumed to be used in its ordinary sense.' " Reese Bros. , Inc. v. United States, 447 F.3d 229, 235-36 (3d Cir. 2006) (quoting Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1332 (11th Cir. 2005)). Thus, the placement of the conjunction in Section 232 suggests that identifying all potential heirs is not necessary for the Superior Court to take jurisdiction. Instead, it suggests that a petitioner must make at least two separate allegations: one of the facts necessary for jurisdiction, and one listing all potential heirs. The facts necessary to give the court jurisdiction are simply that there was a decedent who had some estate and died either intestate or with a will. See id. ; V.I. CODE ANN. tit. 15, § 161; V.I. CODE ANN. tit. 5, § 76.

This reading of Section 232 is consistent with Section 236's provision that parties seeking to be appointed personal representatives "shall be deemed to renounce their right thereto" if they do not apply for such appointment within thirty days of the death of the decedent. V.I. CODE ANN. tit. 15, § 236(b). Indeed, Section 236 merely provides that a "court in its discretion may direct [that notice be given to the heirs], requiring them within such period to apply for or renounce their right of administration." V.I. CODE ANN. tit. § 236(b) (emphasis supplied). Even if it is required that such notice be given, the Court is unaware of any statute or decision providing that such notice is a jurisdictional prerequisite.

Courts must "examine [a] statute as a whole, rather than considering provisions in isolation." Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295, 302 (3d Cir. 2011). Moreover, "courts should endeavor to give meaning to every word which [the Legislature] used and therefore should avoid an interpretation which renders an element of the language superfluous." Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d Cir. 2001) (citing United States v. Alaska, 521 U.S. 1 (1997); United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 550 (1996); First Bank Nat'l Ass'n v. FDIC, 79 F.3d 362, 367 (3d Cir. 1996). Reading Section 232 in conjunction with Section 236, it is clear that while the Legislature intended for those applying to be personal representatives list all heirs and contact them when appropriate, it did not intend for those requirements to be essential to the Superior Court's jurisdiction. This Court cannot ignore the structure of Section 236, which places the burden on the heirs to participate in the appointment process. Likewise, Section 236 provides only that a court "may" require that the heirs be notified of the appointment proceeding, not that the heirs must be notified in all cases. Thus we cannot say that Sukow's failure to list or notify Wallis of his Petition deprived the Superior Court of jurisdiction.

Although it is unclear whether Wallis was aware of the Petition at the time it was made, she has since submitted a declaration in which she asserts no objection to the appointment of Dale Sukow as personal representative of the Estate of Marcus Sukow.

Accordingly, the Sukows have shown by a preponderance of the evidence that Dale Sukow has standing to bring this action, as Dale Sukow has been appointed personal representative of the Estate of Marcus Sukow by an order of the Superior Court that is not void for want of jurisdiction. The Court will accordingly deny the motion of Clarke and the United States to dismiss this action.

In the alternative, Clarke and the United States request that this Court stay this matter until the question of the appropriate personal representative is resolved. However, as discussed above, whether or not Dale Sukow is in fact the appropriate representative does not bear on the question of Dale Sukow's standing to bring this claim so long as Dale Sukow was appointed personal representative by a court order that is not void. It is well-established that federal courts have a "virtually unflagging obligation . . . to exercise the jurisdiction given them." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817. Having been satisfied that the exercise of this court's jurisdiction is appropriate in this matter, the Court declines to stay this proceeding simply for the purpose of relitigating an issue of territorial law in a territorial court.

An appropriate order follows.

________________________

Curtis V. Gómez

Chief Judge