United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER GRANTING IN PART
DEFENDANTS' MOTION TO DISMISS
BARBARA M. G. LYNN CHIEF JUDGE.
the Court is Defendants' Motion to Dismiss pursuant to
Fed.R.Civ.P. 12(b)(6) and 12(b)(7). (ECF No. 78). For the
reasons stated below, the Motion is GRANTED in
part. The following claims are DISMISSED
without prejudice for lack of capacity under
Fed.R.Civ.P. 12(b)(6): Plaintiffs Gary and LaNita
Adkison's survival claims as representatives of the
Estate of Bryson Adkison, and Plaintiff Brittany King's
survival claims as representative of the Estate of Ryan King.
These claims may be reasserted by Plaintiffs as
“representatives” only if they become executors
or administrators of the Estates. The decision of whether
Plaintiffs Gary and LaNita Adkison may assert survival claims
on behalf of Bryson Adkison's heir, Kennedy Adkison, and
whether Kennedy Adkison must be joined as a party to Gary and
LaNita Adkison's wrongful death claims, will be
determined after a hearing as set out herein.
Factual and Procedural Background
assert the following facts in their Complaint. On August 8,
2016, Bryson Adkison and his brother-in-law, Ryan King, were
killed when their vehicle, manufactured by Defendants,
crashed down a ravine. (ECF No. 64 ¶¶ 10, 12).
Bryson Adkison's parents, Plaintiffs Gary and LaNita
Adkison, were also injured in the crash. (Id. ¶
12). Plaintiff Brittany King was Ryan King's wife.
(Id. ¶ 33). She and Ryan King had two minor
children. (Id. ¶ 3). Kennedy Adkison is the
minor child of Bryson Adkison and his widow, Holly. (See
Id. ¶ 37; see also ECF No. 62).
Administrations of the Estates of Bryson Adkison or Ryan King
are not pending and are alleged to be unnecessary. (ECF No.
64 ¶¶ 19-20).
Gary and LaNita Adkison, Brittany King, and Holly Adkison
filed this suit on August 2, 2018 (ECF No. 1). On August 1,
2019, Holly Adkison filed a Notice of Non-Suit Without
Prejudice. (ECF No. 62). In the Notice, Holly Adkison
purported to designate her in-laws, Plaintiffs Gary and
LaNita Adkison, as representatives of Bryson Adkison's
Estate and as next friend of Kennedy Adkison. (Id.
at 2). The Court dismissed Holly without prejudice on August
14, 2019, noting that Defendants did not oppose the Notice.
(ECF No. 63). On September 10, 2019, in a deposition, Holly
Adkison stated that she does not want Kennedy Adkison's
claims in this case to be pursued “as of right now,
” and that she would “discuss that as the lawsuit
moves forward.” (ECF No. 88 at 16-17).
Gary and LaNita Adkison have asserted survival claims as
“representatives” of the Estate of Bryson
Adkison, and as next friend of Kennedy Adkison. (ECF No. 64
¶¶ 36-37). Plaintiff Brittany King has asserted
survival claims as “representative” of the Estate
of Ryan King. (Id. ¶ 32). Defendants move to
dismiss all these claims under Federal Rule of Civil
Procedure 12(b)(6), for lack of capacity. (ECF No. 78 at
1-2). Plaintiffs Gary and LaNita Adkison also individually
asserted wrongful death claims related to Bryson
Adkison's death (ECF No. 64 ¶¶ 28-31), which
Defendants move to dismiss under Federal Rule of Civil
Procedure 12(b)(7), for failure to join all necessary
parties. (ECF No. 78 at 2).
Lack of Capacity Under Rule 12(b)(6)
Rule of Civil Procedure 12(b)(6) authorizes a court to
dismiss a claim for failure to state a claim upon which
relief can be granted, including lack of capacity to sue.
See Coates v. Brazoria Cty. Tex., 894 F.Supp.2d 966,
968 (S.D. Tex. Sept. 10, 2012). Capacity to sue is determined
by the procedural law of the state where the case is pending.
See Angers ex rel. Angers v. Lafayette Consol.
Gov't, No. Civ.A. 07-0949, 2007 WL 2908805, at *1-2
(W.D. La. Oct. 3, 2007) (quoting Darby v. Pasadena Police
Dep't, 939 F.2d 311, 313 (5th Cir. 1991) (citing
Fed.R.Civ.P. 17(b))). A court must take all factual
allegations in the complaint as true when considering a
motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662,
Failure to Join a Necessary Party Under Rule
Federal Rule of Civil Procedure 12(b)(7), a claim may be
dismissed for failure to join a necessary party under Rule
19. “Although Rule 19 permits joinder of parties for
just adjudication, or necessary parties . . . Federal Rule of
Civil Procedure 17(a) permits a real party in interest to
bring an action in their own name on behalf of others . . .
if authorized by statute to do so.” Phillips v.
Delta Air Lines, Inc., 192 F.Supp.2d 727, 729 (E.D. Tex.
Oct. 16, 2001) (relying on Fed.R.Civ.P. 17(a)(1)(G)).
“The real party in interest is the person or entity who
holds the substantive right to the claim.” Jenkins
v. Wright & Ferguson Funeral Home, 215 F.R.D. 518,
521 (S.D.Miss. May 29, 2003) (citing Wieburg v. GTE Sw.,
Inc., 272 F.3d 302, 306 (5th Cir. 2001)).
survival claim, “heirs or legal representatives of the
decedent's estate may recover for the physical pain,
suffering, and property damage sustained by the decedent
before death, as well as for medical expenses and other
damages.” Borth v. Charley's Concrete Co.,
139 S.W.3d 391, 395 (Tex. App.- Fort Worth 2004, pet.
denied); see also Tex. Civ. Prac. & Rem. Code
§ 71.021. “[A] wrongful death [claim] is separate
and distinct, and compensates the spouse, children, and
parents for their loss sustained from the death of the
decedent.” Ordonez v. Abraham, 545 S.W.3d 655,
664 (Tex. App.-El Paso 2017, no pet.) (citing Tex. Civ. Prac.
& Rem. Code § 71.004(a)).
Plaintiffs Gary and LaNita Adkison's Survival Claims as