Brian v. BNSF Railway Company

Filing 28

ORDER granting 6 Motion to Dismiss; denying 24 Motion for Leave to Amend Complaint. Signed by Judge James M. Moody Jr. on 12/14/2015. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
NANCY BRIAN, Mother of
MARK AARON BRIAN, Deceased
VS.

PLAINTIFF
3:15-CV-00212-JM

BNSF RAILWAY COMPANY

DEFENDANT
ORDER

Pending are Defendant’s Motion to Dismiss (Doc. No. 6) and Plaintiff’s Motion to
Amend Complaint (Doc. No. 24). Both motions are opposed.1
I.

BACKGROUND
On July 28, 2015 Plaintiff filed a wrongful-death action “on behalf of all wrongful death

beneficiaries” of decedent Mark Brian.2 On November 20, 2015, an Arizona court appointed
Janine Brian and Nancy Brian “as co-personal representatives” of the Estate of Mark Brian.3
II.

DISCUSSION
“Arkansas law is clear that where there is no personal representative at the time of filing,

‘all statutory beneficiaries must be joined as plaintiffs to the [wrongful death] action.’”4
“Because individual heirs have no standing, when a complaint is filed by fewer than all of the
decedent’s heirs at law, the complaint is a nullity.”5 When Plaintiff filed this case, she was

1

Doc. Nos. 25, 27.

2

Doc. No. 1.

3

Doc. No. 26-2.

4

Mendez v. Glover, 379 S.W.3d 92, 97 (Ark. App. 2010) (quoting Brewer v. Poole, 207
S.W.3d 458, 464 (2005)).
5

Id.
1

simply a beneficiary and not yet the personal representative. Since she did not include all of the
beneficiaries as plaintiffs, the case must be dismissed as a nullity.
Recently Plaintiff was named as a co-representative of the estate and wants to amend the
complaint accordingly. However, you cannot amend a complaint that is a nullity because it
never existed – so there is nothing to amend.6
CONCLUSION
Based on the findings of fact and conclusions of law above, Defendant’s Motion to
Dismiss (Doc. No. 6) is GRANTED. Plaintiff’s Motion for Leave to Amend Complaint (Doc.
No. 24) is DENIED.
IT IS SO ORDERED this 14th day of December, 2015.
______________________________
UNITED STATES DISTRICT JUDGE

6

Brewer v. Poole, 207 S.W.3d 458, 466 (Ark. 2005) (“Where the original complaint is a
nullity, Rules 15 and 17 are inapplicable because the original complaint never existed; thus,
there is no pleading to amend and nothing to relate back.”).
2