Engel v. R.J. Reynolds Tobacco Company, et al.,

Filing 12

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 5/16/2017 re 7 Defendants' Motion to Dismiss: IT IS ORDERED that defendant's Motion to dismiss for failure to join a necessary party be, and the same hereby is, GRANTED. I T IS FURTHER ORDERED that defendants' Motion to dismiss for failure to state a claim and conflict preemption be, and the same hereby is, DENIED AS MOOT. IT IS FURTHER ORDERED that Exhibit 1 to defendants' Motion to dismiss (Docket No. 7-2) be, and the same hereby is, STRICKEN. Plaintiff has twenty days from the date this Order is signed to file a First Amended Complaint, if he can do so consistent with this Order. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JULIUS ENGEL,
Plaintiff,

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CIV. NO. 2:17-618 WBS GGH
MEMORANDUM AND ORDER RE: MOTION
TO DISMISS

v.
R.J. REYNOLDS TOBACCO CO.,
PHILIP MORRIS USA, INC., and
DOES 1-10,

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Defendants.

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Plaintiff Julius Engel brought this action against R.J.

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Reynolds Tobacco Co. and Philip Morris USA, Inc., for wrongful

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death arising out of the death of his wife.

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before the court on defendant’s Motion to dismiss for failure to

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join a necessary party, failure to state a claim upon which

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relief can be granted, and preemption.

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7).)

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I.

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The matter is now

(Defs.’ Mot. (Docket No.

Factual and Procedural Background
Plaintiff alleges that his wife, Mary Engel, died from
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cardiovascular disease in August 2016.

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(“Compl.”) at 3 (Docket No. 1-2).)

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nicotine products” allegedly caused her death.

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Decedent is survived by plaintiff and their three adult children.

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(Id. at 6.)

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(Notice of Removal, Ex. 1

Defendants’ “tobacco and
(Id. at 3, 6.)

Plaintiff brought a wrongful death action against

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defendants in Sacramento County Superior Court, alleging (1)

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negligence, (2) intentional tort, (3) products liability, and (4)

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breach of warranty.

(Id. at 1, 3.)

Defendants subsequently

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removed the case to federal court on the basis of diversity

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jurisdiction.

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II.

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(Docket No. 1.)

Discussion
Federal Rule of Civil Procedure 12(b)(7) permits a

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party to move for dismissal due to the failure to join a

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necessary party under Federal Rule of Civil Procedure 19.

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Fed. R. Civ. P. 12(b)(7); Paiute-Shoshone Indians of the Bishop

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Cmty. v. City of Los Angeles, 637 F.3d 993, 1002 (9th Cir. 2011).

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Rule 19 imposes a three-step inquiry: “(1) is the absent party

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necessary . . . under Rule 19(a)?

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order that the absent party to be joined?

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feasible, can the case proceed without the absent party, or is

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the absent party indispensable such that the action must be

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dismissed?”

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v. Lee, 672 F.3d 1176, 1179 (9th Cir. 2012).

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necessary if:

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See

(2) If so, is it feasible to
(3) If joinder is not

Salt River Project Agric. Improvement & Power Dist.
A party is

(1) in the party’s absence, the court cannot
accord
complete
relief
among
existing
parties; (2) the absent party has an interest
in the action and resolving the action
without him may impair or impede his ability
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to protect that interest; and (3) the absent
party has an interest in the action and
resolving the action in his absence may leave
an existing party subject to multiple or
inconsistent obligations.

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Backer v. United States, Civ. No. 1:13-1552 AWI GSA, 2014 WL
4267500, at *2 (E.D. Cal. Aug. 29, 2014) (citing Fed. R. Civ. P.
19(a)(1)).

plaintiff must nevertheless allege the name of the necessary
party and the reasons for not joining that person.

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Fed. R. Civ.

P. 19(c).

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If joinder of a necessary party is not feasible, a

Under California law, wrongful death is a statutory
claim.

Ruttenberg v. Ruttenberg, 53 Cal. App. 4th 801, 807 (2d

Dist. 1997).

The decedent’s “surviving spouse, domestic partner,

children, and issue of deceased children” may bring a wrongful
death cause of action.

Cal. Civ. Proc. Code § 377.60.

“While

each heir designated in section 377.60 has a personal and
separate wrongful death cause of action, the actions are deemed
joint, single and indivisible and must be joined together in one
suit.”

Corder v. Corder, 41 Cal. 4th 644, 652 (2007).

Because

the actions are joint, single, and indivisible, federal courts
have held that absent heirs are necessary parties in wrongful
death cases.

Backer, 2014 WL 4267500, at *3; see A.D. v. Cal.

Highway Patrol, No. C 07-5483 SI, 2009 WL 733872, at *4 (N.D.
Cal. Mar. 17, 2009); Estate of Burkhart v. United States, No. C
07-5467 PJH, 2008 WL 4067429, at *7 (N.D. Cal. Aug. 26, 2008).
Therefore, “[a]n heir who brings a wrongful death action has ‘a
mandatory duty to join all known omitted heirs in the “single
action” for wrongful death.’”

A.D., 2009 WL 733872, at *4

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(quoting Ruttenberg, 53 Cal. App. 4th at 808).
Here, the decedent’s alleged heirs for a wrongful death

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cause of action are her surviving spouse and her “three grown

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children.”

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however, is the decedent’s surviving spouse.

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decedent’s three grown children are heirs under section 377.60,

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they are necessary parties.

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Plaintiff argues that he is the only “first tier” heir because

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all of the children are adults and therefore it is not necessary

(Compl. at 6.)

The only plaintiff in this action,
Because the

See A.D., 2009 WL 733872, at *5.

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to join decedent’s adult children in this action.

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position, however, is unsupported by case law. See, e.g., Estate

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of Burkhart, 2008 WL 4067429, at *7 (“An heir who files a

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wrongful death action is required to properly join all known

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heirs in the action.” (citing Cross v. Pac. Gas & Elec. Co., 60

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Cal. 2d 690, 692-93 (1964))).

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defines who are heirs for purposes of a wrongful death action,

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does not define different “tiers” of heirs or state that adult

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children are not heirs.

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necessary parties.

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Plaintiff’s

Further, section 377.60, which

Accordingly, the decedent’s children are

The court must next determine whether joinder of

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decedent’s children is feasible and, if not, whether they are

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indispensable parties.

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Plaintiff does not, however, allege why joinder of the necessary

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parties is not feasible, as required by Rule 19(c).

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thus unable to determine whether joinder is feasible.

See Salt River, 672 F.3d at 1179.

The court is

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Because plaintiff has not indicated why joinder is not

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feasible, the court will grant defendants’ Motion to dismiss the

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Complaint for failure to join a necessary party.
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See Bickoff v.

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Wells Fargo Bank, N.A., No. 11-CV-02452 BEN (WVG), 2012 WL

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3637381, at *3 (S.D. Cal. Aug. 20, 2012).

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Complaint, plaintiff must either join all necessary parties or

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indicate why it is not feasible to join the necessary parties

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under Rule 19(c).

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In the First Amended

Because the court will grant defendants’ Motion to

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dismiss under Rule 12(b)(7), the court need not address

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defendants’ Motion to dismiss for failure to state a claim and

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preemption.

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The parties also agree to strike Exhibit 1 to

defendants’ Motion.

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IT IS THEREFORE ORDERED that defendant’s Motion to

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dismiss for failure to join a necessary party be, and the same

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hereby is, GRANTED.

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IT IS FURTHER ORDERED that defendants’ Motion to

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dismiss for failure to state a claim and conflict preemption be,

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and the same hereby is, DENIED AS MOOT.

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IT IS FURTHER ORDERED that Exhibit 1 to defendants’

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Motion to dismiss (Docket No. 7-2) be, and the same hereby is,

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STRICKEN.

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Plaintiff has twenty days from the date this Order is

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signed to file a First Amended Complaint, if he can do so

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consistent with this Order.

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Dated:

May 16, 2017

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