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Adkison v. Polaris Industries Inc.

United States District Court, N.D. Texas, Dallas Division

January 13, 2020

GARY ADKISON, et al., Plaintiffs,
v.
POLARIS INDUSTRIES, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS

          BARBARA M. G. LYNN CHIEF JUDGE.

         Before 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.

         I. Factual and Procedural Background

         Plaintiffs assert the following facts in their Complaint.[1] 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).

         Plaintiffs 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).

         Plaintiffs 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).

         II. Legal Standards

         A. Lack of Capacity Under Rule 12(b)(6)

         Federal 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, 678 (2009).

         B. Failure to Join a Necessary Party Under Rule 12(b)(7)

         Under 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)).

         III. Analysis

         In a 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)).

         A. Plaintiffs Gary and LaNita Adkison's Survival Claims as ...


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