Brian v. BNSF Railway Company

Filing 17

ORDER: Pursuant to Rule 15(a)(1)(B), Plaintiff may amend the Complaint within 14 days of the date of the order. BNSF may re-file the motion to dismiss if Plaintiff fails to add the co-personal representative as a plaintiff. The defendant's motion to dismiss, 6 , is denied without prejudice. Signed by Judge James M. Moody Jr. on 6/14/2016. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
NANCY ELLEN BRIAN, as
Co-Personal Representative for the
Estate of Mark Aaron Brian, Deceased
V.

PLAINTIFF
3:16CV00045

BNSF RAILWAY COMPANY

DEFENDANT
ORDER

Defendant BNSF Railway Company moves the Court to dismiss the case brought by
Nancy Ellen Brian, one of two personal representatives for the Estate of Mark Aaron Brian.
BNSF claims that because Plaintiff has failed to join her co-personal representative for the
Estate, Plaintiff lacks standing to bring the suit. The Court agrees.
In the alternative to dismissing the case, Plaintiff has requested leave to amend the
Complaint to add her co-personal representative as a plaintiff. “A party may amend its pleading
once as a matter of course within . . . 21 days after service of a motion under Rule 12(b), (e), or
(f). . . .” Fed.R. Civ. P. 15(a)(1)(B). BSNF filed the motion to dismiss pursuant to Rule 12(b) on
May 16, 2016. Plaintiff filed the response and request to amend on May 31, 2016, less than 21
days later. Pursuant to Rule 15(a)(1)(B), Plaintiff may amend the Complaint within 14 days of
the date of the order. BSNF may re-file the motion to dismiss if Plaintiff fails to add the copersonal representative as a plaintiff.
The Defendant’s Motion to Dismiss (ECF No. 6) is DENIED without prejudice.
IT IS SO ORDERED this 14th day of June, 2016.
________________________
James M. Moody Jr.
United States District Judge