Opinion
Civil Action No. 5:02-CV-073-C.
August 3, 2004
ORDER
On this day, the Court considered the Motion to Dismiss or in the Alternative Motion for Summary Judgment filed July 13, 2004, by Defendants, the City of Levelland, Rick Wooten, and Fred Gonzales. Plaintiffs, Bernardo Lopez-Rodriguez, Maria Magdelana Rodriguez, and Susie Resendez, filed a Response to Defendants' Motion on July 23, 2004. Plaintiffs also moved to amend their pleadings within the Response. After considering all relevant arguments and evidence, the Court GRANTS Plaintiffs' Motion to Amend Pleadings and DENIES Defendants' Motion to Dismiss or in the Alternative Motion for Summary Judgment.
Plaintiff Susie Resendez files suit "Individually, as Representative of the Estate of David Rodriguez, Sr., and as Next Friend of David Rodriguez, Jr. and Don Leon Rodriguez, Minor Children." Thus, she is suing in three capacities.
I. PROCEDURAL HISTORY
Plaintiffs filed suit against Defendants City of Levelland, Texas, the Levelland Police Department, Levelland Chief of Police Ted Holder (in both his individual and official capacities), Rick Wooten (individually and in his official capacity), and Fred Gonzales (individually and in his official capacity) on April 15, 2002. On July 12, 2002, Plaintiffs filed their First Amended Original Complaint. Defendants Ted Holder, Rick Wooten, and Fred Gonzales each filed a motion for summary judgment on July 31, 2002. Plaintiffs filed their Response to Rick Wooten's and Fred Gonzales' Motions for Summary Judgment on September 10, 2002. Plaintiffs then filed a motion for leave to amend their complaint a second time, which was granted by this Court. Plaintiffs filed a Second Amended Complaint on September 13, 2002. Defendants Ted Holder, Rick Wooten, and Fred Gonzales then moved to amend their respective motions for summary judgment. The Court ordered the Clerk to terminate the prior motions for summary judgment. On November 12, 2002, the Plaintiffs filed responses to the amended motions for summary judgment. On December 3, 2002, the Court granted Defendant Ted Holder's amended motion for summary judgment and dismissed with prejudice Plaintiffs' claims against Defendant Ted Holder, individually and in his official capacity.On December 12, 2002, the Court granted in part Rick Wooten's and Fred Gonzales' motions for summary judgment. The Court denied summary judgment to those two Defendants on the issues of qualified and official immunity. However, the Court granted in part those two Defendants' motions on the issues of Plaintiffs' claims under § 1983 and the Texas Tort Claims Act.
Defendants City of Levelland and Levelland Police Department filed their Motion for Summary Judgment on January 8, 2003. Plaintiffs responded on June 10, 2003. The Court granted Defendant City of Levelland's motion for summary judgment and dismissed with prejudice the Plaintiffs' claims against the City and entered a judgment on July 16, 2003. On July 21, 2003, the Court also granted Defendant Levelland Police Department's Motion for Summary Judgment and dismissed the Plaintiffs' claims with prejudice.
On July 21, 2003, the Court re-styled the case to reflect the remaining parties Defendant as being only Rick Wooten and Fred Gonzales in their individual and official capacities. Plaintiffs filed an Interlocutory Notice of Appeal on August 13, 2003. Plaintiffs appealed, among other things, the dismissal of their claims against Defendants City of Levelland, the Levelland Police Department, and Ted Holder. On August 28, 2003, the Court granted a motion to stay the proceedings.
On September 18, 2003, the Fifth Circuit dismissed the appeal for want of prosecution-failure to timely order transcripts. The Fifth Circuit reinstated the appeal on October 8, 2003. This Court set the case for a jury trial on June 14, 2004. The two remaining Defendants, Rick Wooten and Fred Gonzales, filed their Requested Jury Instructions on May 7, 2004. A Joint Pretrial Order was forwarded to the Judge's chambers on May 13, 2004. The Plaintiffs filed their Requested Jury Instructions on May 14, 2004. On June 4, 2004, following a conference call among counsel for the parties and the Judge, the Court vacated the July 14, 2004 trial date. The Court ordered the parties to submit pretrial briefs on the issue of the proper parties plaintiff, and any other issues the parties deemed pertinent, and a joint pretrial order (following the Fifth Circuit's opinion issued on June 3, 2004, affirming in part and vacating in part this Court's judgment dismissing the City of Levelland). Defendants filed a pretrial brief on July 2, 2004, and the Plaintiffs filed their pretrial brief on July 6, 2004. Defendants raised the issue of standing to bring a wrongful-death and/or survival action by the Plaintiffs. This Court issued an Order dated July 8, 2004, requiring any motion for dismissal or for summary judgment on the issue of standing to be filed on or before 9:00 a.m. on July 14, 2004, and any response to be filed on or before 9:00 a.m. July 23, 2004. The parties complied and the Defendants filed a Motion to Dismiss or in the Alternative for Summary Judgment. The Plaintiffs filed a Response to Defendants' motion on July 23, 2004.
II. BACKGROUND
While traveling in a 1989 Chevrolet Barretta in the early morning hours of April 16, 2000, David Rodriguez and his passenger, Arthur Limon, ran a stop sign at US 385 and TX 114. Texas Department of Public Safety Trooper Shawn Baxter initiated a pursuit of the vehicle after observing the automobile run the stop sign. Texas Highway Patrol Sergeant Mike McClure was riding with Trooper Baxter. Trooper Baxter activated his overhead emergency lights when he initiated the pursuit; however, David Rodriguez failed to stop. When the overhead emergency lights were activated, the video camera mounted in the patrol car began recording.
Sergeant McClure notified the Levelland Police Department of the pursuit. After hearing of the pursuit on the radio, Levelland Patrolman Rick Wooten, accompanied by Reserve Officer Fred Gonzales, joined the pursuit at the intersection of West Avenue and 10th Street. Upon joining the pursuit, Levelland Patrolman Rick Wooten followed Trooper Baxter's vehicle. At Avenue H, a South Plains College Police Department patrol car joined in the pursuit. This vehicle was driven by Corporal Kyle Battin, accompanied by Officer Scott Prothro. Corporal Battin's car followed Patrolman Rick Wooten's car.
Two Levelland Police Department cars attempted to set a roadblock just north of 15th Street; however, David Rodriguez drove through before the roadblock was entirely completed. At this point, Patrolman Wooten's car, in violation of Levelland Police Department policy, passed Trooper Baxter's car and became the lead car in the pursuit. Again in violation of Levelland Police Department policy, Patrolman Wooten attempted a "moving roadblock" to stop David Rodriguez. The attempted "moving roadblock" failed.
Patrolman Wooten's car and David Rodriguez's car collided. At this point, Patrolman Wooten drew his weapon and, while still driving the vehicle, attempted to fire at the tires of David Rodriguez's vehicle. After Patrolman Wooten fired, South Plains College Officer Prothro fired one round at the left rear tire of David Rodriguez's vehicle. David Rodriguez continued fleeing. The pursuit continued south on Avenue H to FM 300 and then west on FM 300.
As David Rodriguez turned west on FM 300, Reserve Officer Gonzales began firing at the left tires of David Rodriguez's vehicle. At some point, Reserve Officer Gonzales fired and struck the back tire of David Rodriguez's vehicle. Reserve Officer Gonzales continued firing and David Rodriguez continued fleeing. David Rodriguez was subsequently struck in the head with a bullet fired from Reserve Officer Gonzales' weapon. As a result of the gunshot wound to the head, David Rodriguez died.
On April 15, 2002, Plaintiffs, Benardo Lopez-Rodriguez; Maria Magdelana Rodriguez; and Susie Resendez, Individually, as Representative of the Estate of David Rodriguez, Sr., and as Next Friend of David Rodriguez, Jr. and Don Leon Rodriguez, Minor Children, filed an Original Complaint against the City of Levelland, Texas; Levelland Police Department; Levelland Chief of Police Ted Holder, Individually and in his Official Capacity; Rick Wooten, Individually and in his Official Capacity; Fred Gonzales, Individually and in his Official Capacity; and the Texas Department of Public Safety. Plaintiffs brought claims alleging that Defendants had violated David Rodriguez's constitutional rights pursuant to 42 U.S.C. §§ 1983, 1985. Plaintiffs also asserted a wrongful-death claim, an assault claim, and claims under the Texas Tort Claims Act.
III. STANDARD
Rule 12(b)(6) Failure to State a Claim
Motions to dismiss for failure to state a claim are appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim. FED. R. CIV. P. 12(b)(6). The test for determining the sufficiency of a complaint under Rule 12(b)(6) was set out by the United States Supreme Court as follows: "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). See also Grisham v. United States, 103 F.3d 24, 25-26 (5th Cir. 1997). The Fifth Circuit has stated that "[a] motion to dismiss under Rule 12(b)(6) is 'viewed with disfavor and is rarely granted.'" Priester v. Lowndes County, 354 F.3d 414, 418 (5th Cir. 2004) (quoting Lowrey v. Texas AM Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)). The determining issue is not whether the plaintiff will ultimately prevail on the merits, but whether he is entitled to offer evidence to support his claim. Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999). A court will not dismiss a plaintiff's claim, "unless the plaintiff will not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in his complaint." Id.
Subsumed within the rigorous standard of the Conley test is the requirement that the plaintiff's complaint be stated with enough clarity to enable a court or an opposing party to determine whether a claim is sufficiently alleged. Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989). Further, "the plaintiff's complaint is to be construed in a light most favorable to the plaintiff, and the allegations contained therein are to be taken as true." Oppenheimer v. Prudential Sec., Inc., 94 F.3d 189, 194 (5th Cir. 1996). This is consistent with the well-established policy that the plaintiff be given every opportunity to state a claim. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977). In other words, a motion to dismiss an action for failure to state a claim "admits the facts alleged in the complaint, but challenges plaintiff's rights to relief based upon those facts." Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1137 (5th Cir. 1992). Finally, when considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the district court must examine the complaint to determine whether the allegations provide relief on any possible theory. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994).
Summary Judgment Standard
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. CIV. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor.
In reviewing the summary judgment evidence, "Rule 56 does not impose upon this Court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Rather, the Court need rely only on those portions of the submitted documents to which the nonmoving party directs the Court's attention. Id.; see also Forsyth v. Barr, 19 F.3d 1527, 1536-37 (5th Cir. 1994) (finding that two volumes of summary judgment evidence were insufficient to preclude summary judgment when plaintiffs failed to identify specific portions which supported their claims).
Rule 56(e), Federal Rules of Civil Procedure, requires the party against whom the motion is made to "set forth specific facts showing that there is a genuine issue for trial." Absent such a showing, a properly supported motion for summary judgment should be granted. See Eversley v. MBank Dallas, 843 F.2d 172, 173-74 (5th Cir. 1988); Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1022-23 (5th Cir. 1995). Once a properly supported motion for summary judgment is presented, the nonmoving party must rebut with "significant probative" evidence. Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 114 (5th Cir. 1978). "[T]he nonmoving litigant is required to bring forward significant probative evidence demonstrating the existence of a triable issue of fact." In Re Municipal Bond Reporting Antitrust Lit., 672 F.2d 436, 440 (5th Cir. 1982). A party defending against a proper motion for summary judgment may not rely on mere denial of material facts or on unsworn allegations in the pleading or arguments and assertions in briefs or legal memoranda; rather, the party's response, by affidavit or otherwise, must set forth specific facts showing that there is a genuine issue for trial. See Union Planters Nat'l Leasing v. Woods, 687 F.2d 117, 119 (5th Cir. 1982).
IV. DISCUSSION
Defendants Rick Wooten, Fred Gonzales, and the City of Levelland filed their Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants filed their alternative Motion for Summary Judgment under Rule 56 of the Federal Rules of Civil Procedure. Defendants raise four issues:
1. Susie Resendez was not the spouse of David Rodriguez, Sr. either by ceremonial marriage or informal marriage.
2. This wrongful death claim cannot be prosecuted as filed, the case was not filed by the heirs within three (3) calendar months from the date of David Rodriguez, Sr.'s death (April 16, 2000). Thereafter, the case was not brought by the executor or administrator.
3. No administrator or executor has been appointed on the Estate of David Rodriguez, Sr., deceased. There is no showing of an absence of necessity of an administration of the Estate of David Rodriguez, Sr., deceased.
4. No administration can be sought or will probated because more than four (4) years have elapsed since the date of David Rodriguez, Sr.'s death.See Def. Mot. at 1-2.
Plaintiffs counter in their Response and Motion to Amend Pleadings that
1. based on Defendants' failure to deny and/or make "specific negative averments" to the capacity of Plaintiff Resendez and/or any other Plaintiff, such complaints are hereby waived;
2. based on the evidence, Susie Resendez was the common-law wife of David Rodriquez, Sr., and Defendants' assertion that a common-law marriage cannot exist if formal ceremony is contemplated is without merit;
3. Plaintiffs' wrongful death claims were timely brought within the two-year statute of limitations;
4. neither an administration of the estate of David Rodriguez, Sr., nor the pleading of such lack of necessity was required in this particular case;
5. Plaintiffs, based in part on the failure of Defendants to timely raise issues, are entitled to amend their complaint to reflect that an administration was not necessary following the death of David Rodriguez.See Pl. Resp. at 1-2. Standing is Not Subject to Waiver
"In every federal case, the party bringing the suit must establish standing to prosecute the action. 'In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.'" Elk Grove Unified Sch. Dist. v. Newdow, ___ U.S. ___, 124 S.Ct. 2301, 2308 (2004) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). Standing is critically important; as such, it is not subject to waiver. United States v. Hays, 515 U.S. 737, 742 (1995). Standing must be considered, even if the parties fail to raise the issue. Id.
Plaintiffs contend that the Defendants should not be allowed to raise the issue of standing in an "eleventh hour" claim. However, as the case law clearly prescribes, the Court must be vigilant on the issue of a party's standing and raise the issue on its own if the parties fail to do so. Moreover, the issue is not subject to waiver. Thus, it may be raised at any time. Plaintiffs further contend that the Defendants have failed to show good cause for leave to file a dispositive motion outside of the Court's prior scheduling order. However, as is plainly clear from the case law on the issue of standing, lack of standing is of utmost importance in a case and thus certainly constitutes "good cause." Moreover, this Court implicitly found there to be good cause when it issued its order on July 8, 2004, requiring the Defendants to submit motions for dismissal and/or summary judgment on the issue of standing. Plaintiffs also point out that the Defendants based their Motion to Dismiss on Rule 12(b)(6) of the Federal Rules of Civil Procedure rather than on Rule 12(b)(1). Plaintiffs' argument would have merit if it were not for the fact that federal courts are to review standing, even if such a review must be done on a court's own initiative. United States v. Hays, 515 U.S. at 742; State v. Am. Tobacco Co., 1999 WL 1022130, 1 (E.D. Tex. 1999) ("Like subject matter jurisdiction, standing must be considered sua sponte by the court even if the parties do not raise the issue"). Thus, even if Defendants filed their motion for dismissal based on a failure to state a claim, this Court should still consider the issue of standing.
The Court could simply have made a determination on the standing issue on its own without allowing the parties to submit briefing on the issue. However, the Court wished to give the parties an opportunity to address the issue themselves before the Court made a finding on standing. The Court believed that the best way for the parties to address the issue was for the Defendants to submit a motion for dismissal/summary judgment and then for the Plaintiffs to submit a response. Thus, the parties could include not only briefs on the issue but also would be allowed to attach appendices in support of their arguments.
Plaintiff Resendez's Status of "Wife"
The Texas Supreme Court has spoken on the requirement that a purported common-law spouse initiate judicial proceedings within the statutorily required time frame to have a common-law marriage declared. Shepherd v. Ledford, 962 S.W.2d 28, 32 (Tex. 1998). In Shepherd, the Texas Supreme Court specifically found that a purported common-law wife must have initiated a proceeding to prove her informal marriage within one year (the then-required time frame under the prior statute, Texas Family Code § 1.91(b)). Id. Although in 1997 the Texas Legislature replaced section 1.9(b) with Texas Family Code § 2.401(b), the logic is still the same. The Legislature increased the time frame from one year to two years. See Tex. Fam. Code Ann. § 2.401(b) (Vernon 1998 and Supp. 2004). Thus, Susie Resendez must have initiated either a proceeding to declare the existence of the common-law marriage or filed the wrongful-death/survival action within two years of David Rodriguez, Sr.'s death. The Texas Supreme Court held:
There are legal procedures available for common-law spouses in Mrs. Ledford's situation. For example, Mrs. Ledford could have filed a Proceeding to Declare Heirship to establish the existence of her common-law marriage. Or she could have filed the wrongful death claim within one year of Mr. Ledford's death and established the existence of the common-law marriage at trial. The choice was hers, as long as she initiated a proceeding to prove her informal marriage within the one-year time limit. . . . [W]e hold that section 1.91(b) simply estops a person from claiming that he or she is informally married unless he or she starts a proceeding to establish an informal marriage within section 1.91(b)'s one year time limit. Consequently, the person would be unable to assert standing to sue under the Wrongful Death Act. . . . We specifically noted that public policy supported our decision because the Legislature approved barring stale claims of an informal marriage by enacting the one-year time limit in section 1.91(b) of the Family Code. Therefore, under the law, Mrs. Ledford was required to begin a proceeding to prove an informal marriage within one year from the time the marriage ended.Shepherd v. Ledford, 962 S.W.2d 28, 32-33 (Tex. 1998) (noting that a purported common-law spouse must initiate a proceeding with the statutorily required time frame (now 2 years under section 2.401 (b)) or the purported spouse would be unable to assert proper standing).
Susie Resendez has filed her instant suit within the two-year requirement. See Def. Mot. at 4. Thus, it may be inferred that Susie Resendez has sought the instant suit to establish an informal marriage to David Rodriguez, Sr. However, there may be an issue as to whether a federal court should hear family law matters or defer to a state court. See Elk Grove Unified Sch. Dist. v. Newdow, 124 S.Ct. 2301, 2309. The United States Supreme Court has long held that federal courts are to defer from hearing cases which involve elements of domestic relations — such as when a federal lawsuit is filed prior to determining the spousal status of a party and the federal suit depended upon such a determination.
Long ago we observed that "[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States." So strong is our deference to state law in this area that we have recognized a "domestic relations exception" that "divests the federal courts of power to issue divorce, alimony, and child custody decrees." We have also acknowledged that it might be appropriate for the federal courts to decline to hear a case involving "elements of the domestic relationship," even when divorce, alimony, or child custody is not strictly at issue: "This would be so when a case presents 'difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar.' Such might well be the case if a federal suit were filed prior to effectuation of a divorce, alimony, or child custody decree, and the suit depended on a determination of the status of the parties." Thus, while rare instances arise in which it is necessary to answer a substantial federal question that transcends or exists apart from the family law issue, in general it is appropriate for the federal courts to leave delicate issues of domestic relations to the state courts.Id. (internal citations omitted).
However, the parties may stipulate that a common-law marriage existed. Shepherd, 962 S.W.2d at 32-33. A stipulation is "an agreement, admission, or concession made in a judicial proceeding by the parties or their attorneys respecting some matter incident thereto." Id. at 33 (emphasis added). Plaintiffs contend that Defendants have admitted that Susie Resendez is the common-law wife of David Rodriguez, Sr. See Pl. Br. at 3-4 (citing to the Original Answers of Defendants City of Levelland, Texas; Rick Wooten; and Fred Gonzales that were filed on June 13, 2002). Plaintiffs assert that although the Defendants each admitted that Susie Resendez "was the mother of the deceased's minor children and is a resident of Hockley County, Texas," they failed to deny that Susie Resendez was the decedent's wife. Plaintiffs have pleaded by way of complaint as follows:
4. Plaintiff, Susie Resendez (wife of deceased David Rodriguez, Sr., and mother of deceased's minor children), is a resident of Hockley County, Texas.See Pl. Second Am. Compl.
Defendants did not deny in their Original Answers that Susie Resendez was the wife of David Rodriguez. Fed.R.Civ.P. 8(d) ("Averments in a pleading to which a responsive pleading is required . . . are admitted when not denied in the responsive pleading."); Hall v. Aetna Cas. Sur. Co., 617 F.2d 1108, 1111 (5th Cir. 1980). Defendants did not amend their answers each time the Plaintiffs amended their complaint; however, given the fact that the Plaintiffs have moved to amend their complaint yet again (and this Court intends to grant Plaintiffs' request within this order), the Defendants will have the opportunity to amend their answers within 10 days as provided under Federal Rule of Civil Procedure 15(a), at which time Defendants may properly call into question the marital status. At that time the Court may be forced to dismiss this action so that the marital question can be determined in its proper forum, state court.
The Court finds that it need not resolve the issue of whether Susie Resendez was the common-law wife of David Rodriguez, Sr. to determine whether the wrongful death claim was timely brought or whether Plaintiffs properly pleaded that no estate administration was pending or necessary.
Timeliness of Wrongful-Death Action
Wrongful-death actions allow statutory beneficiaries to be compensated for their own loss resulting from the death of the deceased. In re McCoy, 373 F. Supp. 870, 874-75 (W.D. Tex. 1974). The Texas Civil Practice and Remedies Code allows for an action to be brought to recover for the wrongful death of an individual. Tex. Civ. Prac. Rem. Code Ann. § 71.004. However, the statute allows only certain parties to bring the suit. Id. at § 71.004(b) ("The surviving spouse, children, and parents of the deceased may bring the action or one or more of those individuals may bring the action for the benefit of all."). Thus, any one of the possible individuals allowed to bring the action may do so for the benefit of all the others. Id. The statute's wording is permissive in that the listed family members are not required to bring the action.
Here, the persons who have brought suit all appear to be entitled to do so under the statute. Bernardo Lopez-Rodriguez is the father of the decedent. Maria Magdelana Rodriguez is the mother of the decedent. David Rodriguez, Jr. and Don Leon Rodriguez, each of whom carries his father's surname, are the minor children of the decedent — whose suit is being prosecuted by their mother as next friend. Thus, all those entitled to bring suit have joined in the suit. See Brantley v. Boone, 34 S.W.2d 409, 411 (Tex.Civ.App.-Eastland 1931) (a defendant has the right to have all interested parties included in the petition); Avila v. St. Luke's Lutheran Hosp., 948 S.W.2d 841, 850 (Tex.App.-San Antonio 1997, writ denied) (all the beneficiaries named in the act are necessary parties).
Susie Resendez may be deemed the common-law spouse of the decedent, if the Defendants do not amend their answers. For the purpose of determining whether Plaintiffs timely filed their wrongful-death claims, it is irrelevant whether Susie Resendez is or is not the common-law wife. If it is found or deemed by admission that she is, then all required parties under the statute have brought suit individually. If it is found that she is not the common-law wife, then all of the statutorily named individuals still have brought suit on their own.
However, Defendants contend that the wording of the statute requires that one of the named beneficiaries bring suit within three calendar months or the named individuals lose the right. Defendants assert that the suit can only be brought by an executor or administrator of the estate if brought more than three months after the death of the injured individual. See Def. Mot. at 2. Plaintiffs counter that the statute's wording merely allows for an administrator or executor of the estate to bring an action, but only after first giving the statutorily named individuals opportunity to do so ( i.e., waiting three months to give the family members first shot at bringing the suit). The statute's plain wording states that if none of the individuals entitled to do so (the parents, spouse, and children) have commenced an action within three months and if all of those same individuals do not object to the executor or administrator bringing the action, then the executor or administrator shall bring the action. Tex. Civ. Prac. Rem. Code Ann. § 71.004(c). The statute requires the executor or administrator of the deceased to bring suit if the entitled individuals have not done so within three calendar months after the death of the injured individual. Id. It appears from the wording of the statute that the executor/administrator must still get the permission of all the statutorily named individuals before the executor/administrator brings the suit. Id. Thus, it appears that the statutorily named individuals still may bring the suit following the expiration of three calendar months. The logical reason for allowing such an objection to veto the executor/administrator's bringing the suit is so that the objecting individual may bring the suit. Moreover, Plaintiffs cite Enciso v. Chmielewski, 16 S.W.3d 858, 860 n. 2 (Tex.App. — Houston [14th Dist.] 2000, no writ), as stating that because the statute "makes no mention of a limitations period for bringing a wrongful-death claim, it neither restricts nor expands the period that applied to such actions." Plaintiffs assert that the two-year statute of limitations, as provided by Texas Civil Practice and Remedies Code § 16.003, applies regardless of who is bringing the claim. Enciso supports Plaintiffs' argument that the two-year statute of limitations is the proper limitations period to apply, regardless of the possibly confusing language of section 71.004(c). Id. at 860 n. 2 ("it neither restricts nor expands the period that has already been held to apply to these actions . . .; [t]herefore, section 71.004(c) . . . is irrelevant to our discussion of the limitations period for wrongful death claims"); see Lubaway v. City of McLean, Texas, 355 F. Supp. 1109, 1111 (N.D. Tex. 1973).
Another Texas appellate court has touched on the issue, though not exactly on point with the case at hand See Serv-Air, Inc. v. Profitt, 18 S.W.3d 652, 664 (Tex.App.-San Antonio 2000, pet dism'd by agr.). In Serv-Air, the San Antonio Court of Appeals made clear the distinction that, under the Wrongful Death Act, if none of the statutory beneficiaries files an action "for the benefit of all" within three calendar months of the date of death, then the executor or administrator shall bring the action "for the benefit of all," unless requested not to by all the individuals. Id. That court made clear that its holdings applied to the instances where, if the "proper plaintiff representative" was bringing suit "for the benefit of all," said representative must be the executor or administrator if brought after the expiration of three calendar months. Id. Here, however, each Plaintiff is bringing suit in his or her own capacity (even the children are bringing suit on their own — through the vehicle required, a next friend), not as representatives. Thus, the Plaintiffs' suit is not being brought by a representative for the benefit of all; rather, it is being prosecuted by each individual who is a statutorily named beneficiary.
Defendants cite to Cobb v. Ford Motor Company, 2001 WL 1669394 (N.D. Tex. 2001), which itself cites to Serv-Air.
Although Plaintiffs' Complaint lists Susie Resendez as a representative of the estate, it also lists her as bringing the suit individually. Thus, she need not sue in any representative capacity for the wrongful-death claims. It is likely that Susie Resendez filed suit in a representative capacity for the survival claims. However, Texas courts have ruled that any of the heirs may act as legal representatives of the estate of a decedent for a survival claim. See Latham v. Mosley's Estate, 351 S.W.2d 123 (Civ.App. — Beaumont 1961, error dism'd). The Court declines to address at this time whether Susie Resendez may be the representative of the estate because Defendants may amend their answers to call into question her status as a spouse.
Thus, the Court finds that Plaintiffs have brought their wrongful-death claims in a timely manner. Section 71.004(c) does not operate to cut short a plaintiff's claim that the plaintiff brings in his or her own name. See Enciso, 16 S.W.3d at 860 n. 2. Defendants admit that Plaintiffs brought their wrongful-death claims within two years of David Rodriguez, Sr.'s death. See Def. Mot. at 4.
Necessity of Administration for Survival Claim
Plaintiffs have also alleged claims under the Texas Survival Statute, Texas Civil Practices and Remedies Code § 71.021. The survival claims are separate and distinct from the wrongful-death claims. See Stiles v. Union Carbide Corp., 520 F. Supp. 865, 867 (S.D. Tex. 1981); Landers v. B.F. Goodrich Co., 369 S.W.2d 33, 35 (Tex. 1963). For a survival action to be brought by the heirs during the four-year period for instituting administrative proceedings, they must allege and prove that there is no administration pending and that none is necessary. Ford Motor Co. v. Cammack, 999 S.W.2d 1, 4 (Tex.App.-Houston [14th Dist.] 1998, pet. den'd) (emphasis added). The survival action may also be brought by a "legal representative." See Tex. Civ. Prac. Rem. Code Ann. § 71.021. A "legal representative" has been defined to include the heirs and widow of a decedent. Latham v. Mosley's Estate, 351 S.W.2d 123 (Civ.App. — Beaumont 1961, error dism'd). In other words, an heir can be the legal representative of an estate.
"But if there is no administration upon the estate of the defendant, and the facts show that none is necessary or desired by those interested in his estate, and the heirs are in possession of his property, they are in such sense the representatives of their ancestor, that a pending action may be revived or an original suit brought [by or] against them." . . . "The suit is maintainable [by or] against them in view of the fact that they stand in his place and are to be regarded as his representatives."Latham, 351 S.W.2d at 125 (quoting McCampbell v. Henderson, 50 Tex. 601, 611, 613 (1879)); see also Stewart v. Hardie, 978 S.W.2d 203, 207 (Tex.Civ.App.-Fort Worth 1998, pet denied); Lovato v. Austin Nursing Center, Inc., 113 S.W.3d 45, 52 (Tex.App.-Austin 2003, review granted) ("An exception to the rule that heirs must plead and prove that no administration is pending and none necessary is that "there is no administration upon the estate . . . and the facts show that none is necessary or desired by those interested in [the] estate . . . and the heirs are in possession of [the decedent's] property. [Citation omitted.] In that instance, the heirs are the representatives of the estate and may bring suit on its behalf.").
The Survival Statute allows an individual's action for personal injury to survive his death. Such an action "survives to and in favor of the heirs, legal representatives, and estate of the injured person." Tex. Civ. Prac. Rem. Code Ann. § 71.021 (Vernon 1997 and 2004 Supp.). Thus, Plaintiffs have brought their § 1983 claims (the claims that David Rodriguez, Sr. would have brought had he survived) through the Texas Survival Statute. Plaintiffs' wrongful-death claims are brought pursuant to their own injuries as a result of David Rodriguez, Sr.'s death. See Landers v. B.F. Goodrich Co., 369 S.W.2d 33, 35 (Tex. 1963).
Here, all of the known heirs have also joined in the suit. As Defendants have conceded, Plaintiffs brought the action within two years of David Rodriguez, Sr.'s death. See Def. Mot. at 4. One of the issues to be determined is whether the Plaintiffs properly pleaded that an administration of the estate was not necessary. See Stewart, 978 S.W.2d at 207 (stating that an exception to the general rule can be met by pleading and showing that no administration was pending and that none was necessary). Plaintiffs' burden of showing that no administration of David Rodriguez, Sr.'s estate is pending has been met by Defendants' own evidence. See Def. App. at 5-6 (Hockley County Clerk's Affidavit of Nonexistence). As to the second prong, Plaintiffs have also supplied some evidence that no administration of the estate was necessary. See Pl. App. at 42 ("We all agreed since there were not any debts owed by David, so it would not be necessary to file anything with the Court, or to get the Court involved. We decided any administration of his estate was not necessary, since the funeral expenses were all paid for, and all the medical bills were taken care [of], and David did not own any land or real estate."). The Plaintiffs also agreed on how to divide up any of David Rodriguez, Sr.'s "remaining things and anything received in the lawsuit." Id. Thus, the Plaintiffs have produced evidence "that the family had resolved the estate's disposition." See Stewart, 978 S.W.2d at 207; Shepard v. Ledford, 926 S.W.2d 405, 413 (Tex.App.-Fort Worth 1996), aff'd, 962 S.W.2d 28 (Tex. 1998).
Again, the Court is not determining whether Susie Resendez is the common-law spouse of David Rodriguez, Sr. because Defendants may amend their answers since Plaintiffs will be granted leave (within this order) to amend their complaint.
It is obvious to the Court that the Plaintiffs failed to plead in their Second Amended Complaint that no administration was pending or was necessary. Plaintiffs argue that it was not necessary to plead lack of necessity. See Pl. Br. at 16-17. The case law cited by Plaintiffs, and the Court above, does allow an exception to the requirement that lack of necessity be pleaded. See Latham, 351 S.W.2d at 125 (quoting McCampbell v. Henderson, 50 Tex. 601, 611, 613 (1879)); see also Stewart v. Hardie, 978 S.W.2d 203, 207 (Tex.Civ.App.-Fort Worth 1998, pet denied); Lovato v. Austin Nursing Center, Inc., 113 S.W.3d 45, 52 (Tex.App.-Austin 2003, review granted). However, the Court notes that the case law states "and the facts show that none is necessary. . . ." Here, the Plaintiffs never presented Ms. Resendez's affidavit until they responded to Defendants' motions for dismissal or judgment. See Pl. App. at 41-42. Thus, the facts available at the time Plaintiffs' Second Amended Complaint was filed did not clearly show that no administration of the estate was necessary or pending. Now, Plaintiffs seek to correct this oversight by again amending their complaint. Plaintiffs have filed, contemporaneously with their Response, their Alternative Motion to Amend Pleadings. Plaintiffs have included their Third Amended Original Complaint in their Appendix. See Pl. App. at 43-58 (amending complaint to include a pleading that an administration of the estate of David Rodriguez, Sr. is not pending and none was necessary). The Court finds that "leave shall be freely given" in this instance because "justice so requires." Fed.R.Civ.P. 15(a); see also Marston v. Am. Employers Ins. Co., 439 F.2d 1035, 1041-42 (1st Cir. 1971). Thus, Plaintiffs' Alternative Motion to Amend Pleadings is GRANTED.
Plaintiffs' argument that lack of necessity did not need to be pleaded at the time the Second Amended Complaint (the complaint Defendants addressed their motions toward) was filed is faulty. Plaintiffs did not bring forth the affidavit of Ms. Resendez, nor did Defendants bring forth the Hockley County Clerk's Affidavit, until now. Thus, no facts existed to show that Plaintiffs need not plead lack of necessity of administration. The exception to requiring such a pleading would not have applied at the time the Second Amended Complaint was filed.
Therefore, because Plaintiffs brought their wrongful-death claims in a timely manner and Plaintiffs have properly pleaded in their Third Amended Complaint that no administration of decedent's estate is pending or necessary, Defendants' Motion to Dismiss or for Summary Judgment is DENIED.
Defendants failed to deny that Susie Resendez was the wife of decedent in their Original Answers. However, the Court will not reach this issue at this time because the Defendants may choose to amend their answers.
CONCLUSION
For the above-stated reasons, Plaintiffs' Alternative Motion to Amend Pleadings is GRANTED and Defendants' Motion to Dismiss or for Summary Judgment is DENIED. The Clerk shall file Plaintiffs' Third Amended Complaint and the Defendants shall have ten (10) days to file their Answer in accordance with Federal Rule of Civil Procedure 15(a).SO ORDERED.