MCCALLUP DSC v. ENVOY OF WILLIAMSBURG CIERA (2021)

Veronica McCallup appeals the district court's order dismissing with prejudice her civil action, in which she sought recovery for the alleged wrongful death of her brother. Although we discern no reversible error, we conclude that the district court lacked subject matter jurisdiction over this action. Specifically, because the court permitted McCallup to proceed only in her individual capacity, she lacked standing to recover for her brother's death. See Johnston Mem'l Hosp. v. Bazemore, 277 Va. 308, 672 S.E.2d 858, 860 (2009) (“A wrongful death action is not an action personal to the personal representative.” (internal quotation marks omitted)).

Accordingly, we grant leave to proceed in forma pauperis and affirm the district court's order as modified to reflect a dismissal without prejudice. See S. Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (“A dismissal for ․ any ․ defect in subject matter jurisdiction ․ must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits.”). In addition, we deny McCallup's motions for a transcript at government expense, for judicial notice, and for sanctions. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

AFFIRMED AS MODIFIED

PER CURIAM:

Affirmed as modified by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.