Hager v. Willis et al
Order re 10 Amended Complaint filed by Kristy Hager. Count V against the Defendants is DISMISSED without prejudice as set out. Signed by Chief Judge Kristi K. DuBose on 10/14/2020. (srd) Copy to Plaintiff.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
KRISTY HAGER, as Sole Beneficiary of
Raymond E Hager’s Will,
SHIRLEY WILLIS, as a Licensed Edward
Jones Stockbroker and Licensed Edward
Jones Branch Manager Broker, et al.,
Civil Action No. 20-00248-KD-B
This action is before the Court on sua sponte review.
In her original complaint, Plaintiff Kristy Hager sued as Personal Representative and sole
beneficiary of the Estate of Raymond E. Hager (doc.1). She brought Count VIII for “Elderly
Abuse” alleging that the “named Defendants above inflicted elderly abuse on Raymond E.
Hager” (Id., p. 14). Ms. Hager filed an amended complaint (doc. 10). She now sues in her
capacity as the “sole beneficiary of Raymond E. Hager’s Will” (Id.) In Count V, Ms. Hager
again sues for “Elderly Abuse” alleging that the “named Defendants above inflicted elderly
abuse on Raymond E. Hager” (Id., p. 15). Thus, Ms. Hager does not claim that Defendants
inflicted elderly abuse upon her. Instead, she seeks to raise this claim on behalf of the deceased
“Standing ‘is the threshold question in every federal case....’” In re Checking Account
Overdraft Litig., 780 F.3d 1031, 1038 (11th Cir. 2015) (quoting Warth v. Seldin, 422 U.S. 490,
498, 95 S.Ct. 2197, 2205 (1975)). “The fundamental prerequisite for standing is that the
claimant have ‘a personal stake in the outcome of the controversy [such] as to warrant his
invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on
his behalf.’” Id., (quoting Warth, 422 U.S. at 498–99, 95 S.Ct. at 2205 (quotation marks
omitted)). “One rule that follows from this principle is that a party ‘generally must assert his
own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of
third parties.’” Id., (quoting Warth, 422 U.S. at 499, 95 S.Ct. at 2205 (emphasis in original)).
“This ‘general prohibition on a litigant's raising another person's legal rights’ is a ‘prudential
standing’ doctrine, ‘not derived from Article III.’” Yellow Pages Photos, Inc. v. Ziplocal, LP,
795 F.3d 1255, 1265 (11th Cir. 2015) (quoting Lexmark Int'l, Inc. v. Static Control Components,
Inc., ––– U.S. ––––, 134 S. Ct. 1377, 1386, 188 L.Ed.2d 392 (2014).
A “party has standing to prosecute a claim in federal court only if he is the ‘real party in
interest’ ” to that claim, as required by Federal Rule of Civil Procedure 17(a).” Tribue v. Hough,
No. 3:04-CV-286-RV-EMT, 2006 WL 212017, at *2 (N.D. Fla. Jan. 26, 2006) (quoting U.S. v.
936.71 Acres of Land, More or Less, in Brevard Cnty., State of Fla., 418 F.2d 551, 556 (5th Cir.
1969)) (citing Fed. R. Civ. P. 17(a) (2019)). “While the real party in interest rule and Article III
standing are distinct concepts, ‘some courts have described Rule 17’s real party in interest
requirement as essentially a codification of the non-constitutional prudential limitation on
standing.’” Cassel v. John Hancock Life Ins. Co., 2020 WL 639612, *2 (S.D. Fla. 2020).
“An action brought by the real party in interest is one ‘brought by the person who,
according to the governing substantive law, is entitled to enforce the right.’ ” Payroll Mgmt, Inc.
v. Lexington Ins. Co., 815 F.3d 1293, 1299 n.10 (11th Cir. 2016) (quoting 6A Charles Alan
Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus & Adam N. Steinman, Federal
Practice and Procedure § 1543 (3d ed. 2015)). With respect to the “governing substantive law”,
Ms. Hager alleges that this Court has both diversity jurisdiction pursuant to 28 U.S.C. § 1332 and
original jurisdiction pursuant to 28 U.S.C. § 1331. When “jurisdiction is based on federal
question and diversity, the choice of law rules of the state in which the action was filed provide
the applicable law.” United States ex rel. Duncan Pipeline, Inc. v. Walbridge Aldinger Co., No.
CV411-092, 2013 WL 1338392, *10 (S.D. Ga. Mar. 29, 2013) (citing Klaxon Co. v. Stentor
Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). For choice of law, “Alabama applies the traditional
doctrine[ ] of ... lex loci delicti to tort claims[, which] requires the court to ‘determine the
substantive rights of an injured party according to the law of the state where the injury occurred.’
” Colonial Life & Acc. Ins. Co. v. Hartford Fire Ins. Co., 358 F. 3d 1306, 1308 (11th Cir. 2004)
(quoting Fitts v. Minnesota Mining & Mfg. Co., 581 So. 2d 819, 820 (Ala. 1991)); Ex parte U.S.
Bank Nat. Ass'n, 148 So. 3d 1060, 1069 (Ala. 2014) (“Lex loci delicti has been the rule in
Alabama for almost 100 years. Under this principle, an Alabama court will determine the
substantive rights of an injured party according to the law of the state where the injury
occurred.”) (quoting Fitts, 581 So.2d at 820). To determine where the injury occurred, the Court
looks to the “state where the last event necessary to make an actor liable for an alleged tort takes
place.” Ex parte U.S. Bank Nat. Ass'n, 148 So. 3d at 1070.
As pled in the “General Allegations”, the last events which could make Defendants liable
for the alleged tort of elder abuse against Mr. Hager occurred in Florida (doc 10, p. 6-12).
Therefore, the law of Florida applies (doc. 10).1 Progressive Waste Sols. of La, Inc. v. St.
Bernard Par. Gov't, No. CV 16-8669, 2016 WL 4191847, at *11 (E.D. La. Aug. 9, 2016)
(“Standing to sue in diversity cases is determined by the substantive rights available under state
The only acts which could have occurred in Alabama were Raymond E. Hager’s
communications with Defendants Edwards Jones, Shirley Willis or her office assistant, and
sending a copy of his Last Will and Testament and notice to Willis and Denise Pramuk to allow
Ms. Hager sole access to his account. A fax was also sent from Florida to Alabama by Willis’
assistant after Mr. Hager had died (doc. 10, ¶¶ 16-19, 61).
law.”) (quoting United States v. 936.71 Acres of Land, More or Less, in Brevard Cty., State of
Fla., 418 F.2d 551, 556 (5th Cir. 1969) (internal citations omitted)).
“Under Florida law, a claim survives the death of a person.” Cross v. Primerica Life Ins.
Corp., No. 3:13CV309-MCR-EMT, 2014 WL 12527701, at *2 (N.D. Fla. Feb. 11, 2014) (citing
Fla. Stat. § 46.021 (“No cause of action dies with the person.”). Under Florida law “[a]ll causes
of action survive and may be commenced, prosecuted and defended in the name of the person
prescribed by law.” Id.
Florida has a statute which provides a private cause of action for elder abuse. See Fla.
Stat. Ann. § 415.1111 (captioned “Civil Actions”). Who may bring the action is set forth in the
statute. Specifically, in relevant part,
A vulnerable adult who has been abused, neglected, or exploited as specified in
this chapter has a cause of action against any perpetrator and may recover actual
and punitive damages for such abuse, neglect or exploitation. The action may be
brought by the . . . personal representative of the estate of a deceased victim
without regard to whether the cause of death resulted from the abuse, neglect or
Fla. Sta. Ann. § 415.1111.
Thus, assuming only for purposes of this order that Mr. Hager was a “vulnerable adult”2
as defined in the Act, the person with standing or capacity, i.e., the real party in interest, to bring
the claim is the “personal representative of the estate of a deceased victim …” Fla. Stat. Ann. §
415.1111. In other words, the personal representative is the person who “according to the
governing substantive law of Florida, who is entitled to enforce the right.” Payroll Mgmt, Inc.,
“(28) “Vulnerable adult” means a person 18 years of age or older whose ability to perform the
normal activities of daily living or to provide for his or her own care or protection is impaired
due to a mental, emotional, sensory, long-term physical, or developmental disability or
dysfunction, or brain damage, or the infirmities of aging.” Fla. Stat. Ann. § 415.102(28).
815 F.3d at 1299 n.10. Since Ms. Hager no longer sues in her capacity as Personal
Representative,3 she is not the real party in interest, and cannot prosecute Count V against the
Defendants. Accordingly, Count V is dismissed without prejudice.
DONE and ORDERED this the 14th day of October 2020.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE
In addition to amending her complaint to sue only as sole beneficiary under the Will, Ms.
Hager states that a “motion from Kristy Hager’s probate attorney to dismiss the estate is now
pending” and that the “Probate case 19CP-1832 is being dismissed.” (doc. 24, p. 1, 3; response to
the motion to dismiss filed by Terri Stanford Mahon and Jordan Zoellner). With the proposed
sur-reply to the motion to compel arbitration, Ms. Hager provides a copy of the Notice of
Voluntary Dismissal without Prejudice, signed by Ms. Hager, wherein she dismissed her petition
for administration of the Estate of Raymond E. Hager (doc. 43, p. 18).
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