KAREN L. HAYES, Magistrate Judge.
Before the undersigned Magistrate Judge, on reference from the District Court, is a hybrid, converted
On May 6, 2012, Joshua Rice passed away at the Nebraska Medical Center as a result of respiratory failure, pneumonia, systemic sepsis, and bacterial endocarditis. (Petition, ¶ 14). On January 28, 2013, Joshua Rice's surviving parents, Tommie Rice and Phyllis Rice, filed the instant wrongful death and survival action on behalf of their decedent's two minor children, CIR and GMR, against Cornerstone Hospital of West Monroe, L.L.C. ("Cornerstone") in the 4th Judicial District Court for the Parish of Ouachita, State of Louisiana. See Petition. Plaintiffs contend that Joshua Rice's untimely death was caused by Cornerstone's negligence. Id., ¶ 22. Specifically, plaintiffs allege that Joshua Rice was unable to undergo a small bowel transplant because of bilateral hip fractures that he suffered during a botched cart to bed sheet transfer at Cornerstone some time in late December 2011 or early January 2012. Id., ¶¶ 8-14.
On February 20, 2013, Cornerstone removed this matter to federal court on the basis of diversity jurisdiction, 28 U.S.C. § 1332.
On April 3, 2013, plaintiffs filed their memorandum in opposition to the motion to dismiss, to which they appended copies of court records dated March 22, 2013, from the Fourth Judicial District Court. See Response, Exhs. B1-6 [doc. # 11]. The state court orders purport to appoint Tommie Rice as tutor ad hoc and Phyllis Rice as under-tutrix ad hoc for CIR and GMR. Id. The state court also issued an "Order Approving and Homologating Detailed Descriptive List, Judgment Approving and Authorizing Compromise Settlement" (hereinafter, "Order of Homologation"), that authorized, empowered, and directed Tommie Rice, "the duly appointed Tutor" of CIR and GMR, to file and settle a medical malpractice suit against Cornerstone for the wrongful death of the minors' father, Joshua Rice. Id. However, because the state court records did not include a copy of an order that actually appointed Tommie Rice tutor ad hoc, this court afforded plaintiffs until May 6, 2013, to supplement their response to the motion to dismiss with a copy of the missing order. See April 23, 2013, Order [doc. # 15]. After further encouragement by the court,
As courts of limited jurisdiction, the federal courts may exercise only that authority bestowed upon them by the Constitution and the Congress. Save the Bay, Inc. v. U.S. Army, 639 F.2d 1100, 1102 (5th Cir. 1981). In the case sub judice, it is manifest that the court enjoys the statutory wherewithal to hear this diversity matter.
These considerations support this court's earlier impression that the "standing" issue raised by Cornerstone is characterized more accurately as a challenge to Tommie Rice and Phyllis Rice's capacity to sue on behalf of the minors. See April 23, 2013, Order [doc. # 15]. Indeed, no one questions that CIR and GMR are the surviving children of the decedent, and thus, that the instant cause of action belongs to them. La. Civ. Code Arts. La. Civ. Code Arts. 2315.1 & 2315.2. Therefore, they enjoy standing. See Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L. Ed. 2d 343 (1975) (Art. III judicial power exists to redress injury to the complaining party); Lewis v. Ascension Parish Sch. Bd., 662 F.3d 343, 347 (5th Cir. 2011) (minor had standing as he was the party affected; the issue was that he did not have the capacity to sue).
If CIR and GMR had reached the age of majority, they could have commenced this matter in their own names, on their own behalf. However, because they are unemancipated minors, the laws of both the forum state and the state where they are domiciled do not grant them the procedural capacity to sue. See La. Code Civ. Pro. Art. 683A; Ark. R. Civ. P. 17(b). Accordingly, the issue, properly framed, is whether Tommie Rice and Phyllis Rice are the proper parties to prosecute this matter on the minors' behalf.
Under the Federal Rules of Civil Procedure, a party need not plead his authority to sue in a representative capacity. Fed.R.Civ.P. 9(a)(1)(B). Moreover, to contest capacity to sue, a party must do so by specific denial. See Fed.R.Civ.P. 9(a)(2). Nonetheless, the Fifth Circuit implicitly has approved 12(b) motions arguing the lack of capacity to be sued. Angers ex rel. Angers v. Lafayette Consol. Gov't, Civ. A. No. 07-0949, 2007 WL 2908805 (W.D. La. Oct. 3, 2007) (citing Darby v. Pasadena Police Dep't, 939 F.2d 311 (5th Cir.1991)). In addition, the Second Circuit has held that the defense of lack of capacity is properly raised via a 12(b)(6) motion, and, if supported by matters outside the pleadings, treated as a motion for summary judgment under Rule 56. See Klebanow v. New York Produce Exch., 344 F.2d 294,296 n.1 (2d Cir. 1965) (citations omitted). The court will analyze defendant's motion accordingly. See April 23, 2013, Order, n.3.
The Federal Rules of Civil Procedure sanction dismissal where the plaintiff fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A pleading states a claim for relief when, inter alia, it contains a "short and plain statement . . . showing that the pleader is entitled to relief . . ." Fed.R.Civ.P. 8(a)(2). To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007)). "[P]laintiffs must allege facts that support the elements of the cause of action in order to make out a valid claim." City of Clinton, Ark. v. Pilgrim's Pride Corp., 632 F.3d 148, 155 (5
When considering a motion to dismiss, courts generally are limited to the complaint and its proper attachments. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citation omitted). However, courts may rely upon "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice" — including public and state court records. Dorsey, supra; Norris v. Hearst Trust, 500 F.3d 454, 461 n9 (5
Tommie and Phyllis Rice's capacity to sue is determined by Louisiana law. See Fed.R.Civ.P. 17(b)(3). Under Louisiana law, the tutor is the proper plaintiff to sue to enforce a right of an unemancipated minor, when, inter alia, one of the parents is dead or the parents are divorced. La. Code Civ. Proc. Art. 683(B). Here, CIR and GMR's parents were divorced on September 15, 2008, which earlier caused the court to award joint custody to the parents and to designate them co-tutors for the minors.
Before assuming the duties as natural tutrix/tutor, however, the surviving parent is required to complete the requirements set forth in Louisiana Code of Civil Procedure Article 4061. Watts, supra (citation omitted). Nonetheless, a surviving parent need not comply with the formalities specified in Article 4061 before filing a delictual action for damages on behalf of her minor child. La. Code Civ. Pro. Art. 4061.1. Thus, at the time the instant suit commenced, Candice Rousso was the proper party to file suit on behalf of the two minors — not Tommie Rice and Phyllis Rice. See La. Code Civ. Pro. Arts. 4061.1 and 863(B).
In an effort to redress ex post facto their procedural incapacity, plaintiffs obtained state court orders that ostensibly appointed Tommie Rice tutor ad hoc and Phyllis Rice undertutrix ad hoc for the minors. See Pl. Suppl Opp. Memo., Exh. A; Pl. Opp. Memo., Exh. B2. Cornerstone contends that Plaintiffs cannot cure their lack of capacity after suit is filed. The court disagrees. Cornerstone's argument rests upon the now discredited premise that Plaintiffs' lack of capacity is jurisdictional. See Lewis, supra; Bengtson supra, (necessity for suit by the indicated tutor is not a jurisdictional requirement leaving the whole proceeding forever and finally void).
Cornerstone's sole remaining argument is that the order appointing Tommie Rice tutor ad hoc for the minors is an absolute nullity because, insofar as it was issued pursuant to Louisiana Code of Civil Procedure 4069, the appointment failed to comply with the article's requirement that it be issued upon good cause shown, and after contradictory hearing with the tutor or the person entitled to the tutorship. La. Code Civ. Pro. Art. 4069. Here, the state court records appointing Tommie Rice tutor do not evidence a contradictory hearing held with Candice Rousso. In fact, the records do not reveal that Rousso even received notice of the petition to appoint Tommie Rice tutor ad hoc.
The court notes that the 4
More recently, however, at least one intermediate Louisiana court has held that an order authorizing a father (co-tutor) to exercise litigious rights on behalf of his minor children was an absolute nullity when he failed to serve notice of the tutorship proceedings on the mother who also was co-tutor. In re Tutorship of Cardenas, 38 So.3d 1284 (La. App. 1
Thus, in the absence of anything on the face of the state court pleadings to suggest that Candice Rousso received notice of the tutorship proceeding, this court is constrained to find that the resulting order of appointment is an absolute nullity. La. Code Civ. Pro. Art. 2002. To the extent that Louisiana still prohibits collateral attack of tutorship proceedings, the undersigned nevertheless remains reluctant to give effect to the state court appointment because Candice Rousso could undermine the efficacy of these proceedings at any time by filing a direct challenge to the ad hoc appointment in state court.
Insofar as the lack of notice to Rousso also did not invalidate the appointment of Phyllis Rice as undertutrix, the court notes that, in any event, an undertutor/undertutrix is not a proper party to enforce the right of an unemancipated minor. See Green v. City of Shreveport, 888 So.2d 314, 317 (La. App. 2d Cir. 2004).
In sum, the court finds that Tommie Rice and Phyllis Rice lack capacity to prosecute this action on behalf of the minors; thus, they fail to state a claim for relief against Cornerstone.
Resolution of a motion to dismiss for failure to join a party is a two-step inquiry:
August v. Boyd Gaming Corp., 135 Fed. Appx. 731 (5
The party advocating joinder bears the initial burden to demonstrate that a missing party is necessary. Hood ex rel. Mississippi v. City of Memphis, Tenn., 570 F.3d 625, 628 (5
Cornerstone contends that CIR and GMR's mother, Candice Rousso, is a required party under Rule 19(a) because she is the proper party to bring this action on behalf of the minors. The court agrees that Ms. Rousso should join in this matter if feasible. See Fed.R.Civ.P. 19(a) and 17(a)(3). If she refuses to join, however, the court is not persuaded that dismissal of the minors' claims is the proper remedy. Rather, if Ms. Rousso refuses to join, then the court will be left with two unrepresented minors.
Rule 17(c) authorizes a federal court to appoint a next friend if the infant's legal representative is unable or refuses to act. Susan R.M. by Charles L.M. v. Ne. Indep. Sch. Dist., 818 F.2d 455, 458 (5th Cir. 1987) (citations omitted); Ad Hoc Comm. of Concerned Teachers on Behalf of Minor & Under-Age Students Attending Greenburgh Eleven Union Free Sch. Dist. v. Greenburgh No. 11 Union Free Sch. Dist., 873 F.2d 25, 30-31 (2d Cir. 1989) (if an infant's representative is unable, unwilling or refuses to act, then the court may appoint a "next friend" to ensure that the infant's rights are protected in a court of law). Indeed, "Louisiana courts have long been reluctant to accept the extinction of minors' substantive and procedural claims by default or waiver . . . The minor in such a case is the special ward of the court, and his rights will not be permitted to be prejudiced by the failure of his appointed representative to alertly guard his interests." Johnson v. Ford Motor Co., 707 F.2d 189, 193-95 (5th Cir. 1983) (citations omitted).
Accordingly, in the event that Ms. Rousso declines to join and advance this matter on behalf of the minor children, then the court intends to appoint Tommie Rice as next friend to prosecute this matter on the minors' behalf. Fed.R.Civ.P. 17(c). Furthermore, all interested parties, including Ms. Rousso, will have an opportunity to address the propriety of this appointment. This procedure should ensure that both the interests of the minors and Defendant Cornerstone are protected. See Fed.R.Civ.P. 19(b).
For the foregoing reasons,
Under the provisions of 28 U.S.C. § 636(b)(1)(c) and F.R.C.P. Rule 72(b), the parties have
