West Wind Air LLC v. Thrush Aircraft Inc

Filing 105

ORDER granting #89 Motion to dismiss. Thrush's third-party claims against the estate are dismissed without prejudice. #95 request for ruling is held in abeyance. Signed by Judge D. P. Marshall Jr. on 7/3/2018. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
PLAINTIFF

WEST WIND AIR LLC, dfb/a CHRISAIR

v.

No. 5:16-cv-274-DPM
DEFENDANT/fHIRDp ARTY PLAINTIFF

THRUSH AIRCRAFT, INC.

v.
PRATT & WHITNEY CANADA
CORP.; and ESTATE OF DONALD
SCOTT BROWN

THIRD-PARTY
DEFENDANTS

ORDER

Donald Brown was a mechanic who allegedly worked on one of
ChrisAir' s planes before it crashed in Arkansas. Thrush has filed a
third-party complaint against Brown's estate and served formeradministratrix Kimberly Brown with the summons. The estate now
moves to dismiss, arguing, among other things, that both the summons
and service were ineffective because the estate is closed and Brown is
no longer its administratrix. FED. R. CIV. P. 12(b)(4) & (b)(5); Adams v.
AlliedSignal General Aviation Avionics, 74 F.3d 882,884 n.2 (8th Cir. 1996).

Because the Court agrees, it need not reach the parties' other
arguments; and it may consider the chancery court papers attached to
the motion without converting it into one for summary judgment.
Stevens v. Redwing, 146 F.3d 538, 543 (8th Cir. 1998).

No one disputes that Kimberly Brown served as administratrix
for her late husband's estate. But her duties in that capacity were
limited and temporary. Yeates v. Box, 198 Miss. 602, 610, 22 So. 2d 411,
414 (1945). Her authority as the estate's representative ended when the
chancery court closed the estate and discharged her in April2017- four
months before Thrush filed its third-party complaint and attempted
service. NQ 89-4 at 4, NQ 52 & NQ 55; Bailey v. Sayle, 206 Miss. 757, 771,
40 So. 2d 618, 620 (1949). There's no indication that the estate has been
reopened or that Brown has been reappointed as its representative.

Powell v. Buchanan, 245 Miss. 4, 9-10, 147 So. 2d 110, 112 (1962).
Thrush's service on her was therefore ineffective; and the Court lacks
personal jurisdiction over the estate. Printed Media Services, Inc. v. Solna

Web Inc. 11 F.3d 838, 843 (8th Cir. 1993); Wilbanks v. Gray, 795 So. 2d
541,549-50 (Miss. App. 2001); cf Delta Health Group, Inc. v. Estate of Pope

ex rel. Payne, 995 So. 2d 123,125-26 (Miss. 2008).

*

*

*

Motion to dismiss, NQ 89, granted. Thrush's third-party claims
against the estate are dismissed without prejudice.

Thrush's third

request for a ruling on allocation, NQ 95, is held in abeyance: the Court
is inclined to follow current Arkansas law on allocation; but the parties
should brief that issue in their dispositive-motion papers; and the
Court will make a final decision then.

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So Ordered.
D.P. Marshall Jr.
United States District Judge
3 ~ J.OJ8
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