Videtich et al v. United States of America

Filing 18

MEMORANDUM DECISION DECISION AND ORDER - Defendants motion to dismiss (Dkt. 6 ) is DENIED. Plaintiffs have until June 13, 2024, to either to join Michael Videtich as a party to this lawsuit, see Fed. R. Civ. P. 19(a)(2), file an effective waiver o f his rights, or attempt to make a showing that the action should proceed in the absence of the required party. ( Case Management deadline set for 6/13/2024.). Signed by US Magistrate Judge Debora K Grasham. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (lm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

BARBARA VIDETICH, BENJAMIN
VIDETICH, NICHOLAS VIDETICH,
and MOLLY DANIEL

Case No. 1:23-cv-00522-DKG

MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

INTRODUCTION
Before the Court is Defendant United States’ Motion to Dismiss for Failure to Join
Indispensable Parties. (Dkt. 6). The Motion is fully briefed. (Dkt. 8, 12, 13, 15). Having
fully reviewed the record, the Court finds that the facts and legal arguments are
adequately presented in the briefs and record. Accordingly, in the interest of avoiding
further delay, and because the Court conclusively finds that the decisional process would
not be significantly aided by oral argument the Court will decide the motions based on
the record. Dist. Idaho. Civ. Rule 7.1(d). For the reasons that follow, the Court will deny
Defendant’s motion to dismiss.

ORDER - 1

FACTUAL AND PROCEDURAL BACKGROUND
On November 21, 2023, Barbara Videtich, Benjamin Videtich, Nicholas Videtich,
and Molly Daniel (collectively “Plaintiffs”) filed a Federal Tort Claims Act Complaint
against the United States of America alleging negligent medical care by the Boise
Veterans Administration Medical Center leading to the death of Donald Videtech. (Dkt. 1
at 7-8). Plaintiffs are the decedent’s wife and three of his children. (Dkt. 1 at 2-3). The
decedent’s mother, Barbara Lee1, and son, Michael, elected not to join the present action.
(Dkt. 6-1).
Defendant seeks to dismiss Plaintiffs’ complaint for failure to join Barbara Lee
and Michael as indispensable parties under Federal Rules of Civil Procedure 12(b)(7) and
19. (Dkt. 6-1). Plaintiffs responded that Barbara Lee and Michael did not file written tort
notices within the two-year statute of limitations in order to pursue a wrongful death
claim as required by 28 U.S.C. § 2401(b), meaning their claims would be time-barred if
forced to join the current litigation. (Dkt. 8 at 2-3). Plaintiffs produced declarations
regarding both individuals’ decision not to join in the litigation. (Dkt. 8 at 4, 8-1, 8-2).
Defendant contends that the declarations initially provided were not legally
recognizable as neither indicate they were made under penalty of perjury. (Dkt. 12).
Additionally, Defendant argues the declaration regarding Michael fails to legally waive
any rights he has to bring a claim. (Dkt. 12 at 3). Michael is currently incarcerated in

The name of decedent’s widow and current Plaintiff in this action is Barbara Videtich.
Coincidentally, the decedent’s mother and nonparty in this action is Barbara Lee Videtich and is
specifically identified by the Court as “Barbara Lee”.
1

ORDER - 2

Texas and has been for the last 16 years. (Dkt. 8 at 5). The declaration Plaintiffs provided
regarding Michael is from his mother and Plaintiff, Barbara, stating that she notified
Michael of the circumstances of his father’s death via conference call on December 14,
2021. (Dkt. 8 at 5). Plaintiffs motioned for leave to file substitute declarations for the
purpose of addressing the deficiencies alleged by Defendant. (Dkt. 13). Plaintiffs’ motion
was granted and substitute declarations from Barbara Lee and Michael’s mother were
filed with the additional language stating that both declarations were made under penalty
of perjury. (Dkt. 15).
STANDARD OF REVIEW
1. Federal Rules of Civil Procedure 12(b)(7) and 19
Federal Rule of Civil Procedure 12(b)(7) permits a party to move to dismiss a
complaint for failure to join a party who is indispensable under Federal Rule of Civil
Procedure 19. Fed. R. Civ. P. 12(b)(7); Quileute Indian Tribe v. Babbitt, 18 F. 3d 1456,
1458 (9th Cir. 1994). Rule 19 “governs compulsory party joinder in federal district
courts.” E.E.O.C. v. Peabody W. Coal Co., 400 F. 3d 774, 778 (9th Cir. 2005).
Rule 19 mandates a three-part inquiry to determine whether an action should be
dismissed for failure to join an indispensable party. E.E.O.C. v. Peabody W. Coal Co.,
610 F. 3d 1070, 1078 (9th Cir. 2010). “First, the court must determine whether a nonparty
should be joined under Rule 19(a).” Id. If an absentee meets the requirements of Rule
19(a), “the second stage is for the court to determine whether it is feasible to order that
absentee be joined.” Id. Finally, if joiner is not feasible, the court must determine at the
third stage whether the case can proceed without the absentee or whether the action must
ORDER - 3

be dismissed. Id. A nonparty in whose absence an action must be dismissed is one who
“not only [has] an interest in the controversy, but [has] an interest of such nature that a
final decree cannot be made without either affecting that interest, or leaving the
controversy in such a condition that its final termination may be wholly inconsistent with
equity and good conscience.” Shields v. Barrow, 58 U.S. 130, 139 (1855).
2. Idaho’s Wrongful Death Statute
Idaho’s wrongful-death statute, Idaho Code § 5-311, vests a cause of action in the
“heirs or personal representatives” of a decedent whose death was caused by a wrongful
or negligent act of another. That action is “one joint and indivisible action in which all
the damages for the benefit of all the beneficiaries shall be recovered.” Campbell v. Pac.
Fruit Express Co., 148 F. Supp. 209, 211 (D. Idaho Feb. 4, 1957); see also Castorena v.
General Electric, 238 P.3d 209, 221 (Idaho 2010) (adopting Campbell). A decedent’s
spouse, children, and parents qualify as heirs under the statute. I.C. § 5-311(2)(b).
DISCUSSION
The first issue the Court must determine is whether Barbara Lee and Michael
should be joined to this case as plaintiffs. An absentee should be joined as a party if “that
person claims an interest relating to the subject of the action and is so situated that
disposing of the action in the person’s absence may: (i) as a practical matter impair or
impede the person’s ability to protect the interest; or (ii) leave an existing party subject to
a substantial risk of incurring double, multiple, or otherwise inconsistent obligations
because of the interest.” Fed. R. Civ. P. 19(a)(1)(B). Per Idaho’s wrongful death statute, a
decedent’s parents and children qualify as heirs. I.C. § 5-311(2)(b).
ORDER - 4

The Idaho Supreme Court has found that generally – only one action may be
brought concerning a decedent’s wrongful death – meaning all heirs are required parties.
Castorena, 238 P.3d at 221 (citing Whitley v. Spokane & Inland Railway, 132 P. 121
(Idaho 1913)). In Castorena, the court did not specifically address whether all the heirs
of a decedent are indispensable parties to a wrongful death action but found the logic in
Campbell, 148 F. Supp at 211-212, finding an heir in a wrongful death claim to be an
indispensable party, generally flowed from the court’s prior opinions. Castorena, 149
Idaho at 621.
There is no dispute among the parties that Barbara Lee and Michael are heirs of
the decedent. (Dkt. 8 at 2). Barbara Lee and Michael’s interest in Plaintiffs’ suit vested at
the time of the decedent’s death. Castorena, 238 P.3d at 220. Thus, as a matter of Idaho
law, Plaintiffs’ claims cannot proceed without Barbara Lee and Michael being joined as
parties or waiving their interests in Plaintiffs’ suit. Id. at 221; Wyatt v. Summers, 2014
U.S. Dist. Lexis 40025, at *4-5 (D. Idaho, Mar. 24, 2014).
Barbara Lee’s declaration states that she “waive[s] any rights [she] might have to
make any claims as a Plaintiff or claimant in this lawsuit or anywhere else arising out of
the death of [her] son, Donald Matthew Videtich in November 2021.” (Dkt. 15 at 2). She
goes on to state she “waive[s] any right [she] ha[s] or may have to any claim against the
United States outside of this lawsuit, including but not limited to filing any separate claim
or lawsuit arising out of the death of [her] son Donald Matthew Videtich in November
2021.” Id. Barbara Lee made such a declaration under penalty of perjury. Id. Defendant’s
argument against the sufficiency of Barbara Lee’s waiver is that the original declaration
ORDER - 5

did not comply with 28 U.S.C. § 1746 because it was not made under penalty of perjury.
(Dkt. 12 at 2). That deficiency was remedied in Plaintiffs’ second declaration. (Dkt 15 at
2). The Court hereby finds Barbara Lee filed an effective waiver of her interest and is
therefore not required to be joined as a party to this action. See Wyatt, 2014 U.S. Dist.
LEXIS 40025, at *5.
Regarding the declaration submitted by Michael’s mother, there is no statement
indicating Michael himself has waived any rights to bring a claim, and there is no
evidence indicating that his mother has the authority to waive Michael’s rights on his
behalf. (Dkt. 12 at 3). Plaintiffs do not make any specific argument that Michael’s mother
has the authority to waive his rights, but generally argue that because the declaration
states he received notice of the circumstances of his father’s death, and the two-year
statute of limitations under the FTCA has passed, any claim he has is time-barred. (Dkt. 8
at 5). See 28 U.S.C. § 2401(b); Wong v. Beebe, 732 F.3d 1030, 1033 (9th Cir. 2013) (Any
person who attempts to bring a tort claim under the FTCA against the United States must
file an administrative claim with the appropriate agency within 2-years after the claim
accrues).
The Court finds the declaration provided by Michael’s mother to be insufficient to
waive his interest in Plaintiffs’ suit. Plaintiffs do not offer any evidence that Michael’s
mother has the legal authority to act on his behalf. Although Defendant does not contest
Plaintiffs’ assertion that Michael has not filed a required tort notice and the two-year
statute of limitations period is passed, Defendant contends that Michael has the potential

ORDER - 6

of bringing a time-barred claim based on legal theories such as incapacity or equitable
tolling.
Equitable tolling is available in FTCA suits against the Government. United States
v. Wong, 575 U.S. 402, 412 (2015) (“The time limits in the FTCA are just time limits,
nothing more. Even though they govern litigation against the Government, a court can
toll them on equitable grounds.”). Though it may have been over two years since Michael
was notified of the decedent’s death, the Court cannot determine that any claim possessed
by Michael is time-barred until the Court has jurisdiction over him, and without
jurisdiction, the Court cannot make findings that destroy his rights. Williams Sports
Rentals, Inc. v. Willis, 90 F.4th 1032, 1041 (9th Cir. 2024) (finding the court cannot
attempt to determine the rights of persons not before it). Therefore, absent an effective
waiver, Michael is a required party under Rule 19(a)(1) because he could potentially
claim an interest in the subject matter of the action, and Defendant could be at risk of
incurring multiple obligations because of his interest. Fed. R. Civ. P. 19(a)(1).
The Court must next consider whether joinder is feasible. United States v. Brown,
172 F.3d 682, 688 (9th Cir. 1999). Joinder is not feasible when it would destroy subject
matter jurisdiction. Yellowstone Poky, LLC v. First Pocatello Assocs., L.P., 2017 U.S.
Dist. LEXIS 136617, at *9 (D. Idaho Aug. 23, 2017). Plaintiffs filed this action invoking
the FTCA as the basis for federal subject matter jurisdiction, and therefore, the addition
of the absent party as a plaintiff would not deprive this Court of jurisdiction.
While Defendant’s motion sought dismissal due to failure to join indispensable
parties, such a step is not necessary if the absent but required party can be joined now.
ORDER - 7

See Bennett v. Islamic Rep (In re Estate of Bennett), 825 F.3d 949, 965 (9th Cir. 2016)
(finding dismissal of a case is not required when a necessary party can be joined);
McCowen v. Jamieson, 724 F.2d 1421, 1424 (9th Cir. 1984) (finding a court has the
authority to join a party sua sponte at any stage of the proceedings if it determines that
the party is necessary to the litigation).
Accordingly, the Court will deny Defendant’s Motion to Dismiss, though it will
order Plaintiffs to either join Michael Videtich as a party to this lawsuit, see Fed. R. Civ.
P. 19(a)(2), file an effective waiver of his rights, or alternatively, if Plaintiffs believe
joinder is not feasible, they may attempt to make a showing that the action should
proceed in Michael’s absence in accordance with the factors set forth in Federal Rule of
Civil Procedure 19(b). Campbell, 148 F. Supp. at 210 (“A court cannot adjudicate the
rights of persons who are not parties before it; they will be brought in if possible and if
they will not destroy diversity.”).
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED as follows:
1. Defendant’s motion to dismiss (Dkt. 6) is DENIED;
2. Plaintiffs have until June 13, 2024, to either to join Michael Videtich as a party to
this lawsuit, see Fed. R. Civ. P. 19(a)(2), file an effective waiver of his rights, or
attempt to make a showing that the action should proceed in the absence of the
required party.

ORDER - 8

DATED: May 13, 2024

_________________________
Honorable Debora K. Grasham
United States Magistrate Judge

ORDER - 9