Bernard v. Kansas Health Policy Authority
MEMORANDUM AND ORDER granting 52 defendant's Motion to Dismiss; granting 54 defendant's Motion to Dismiss Party; and denying 61 plaintiff's Motion for Leave to Amend Complaint. Signed by District Judge J. Thomas Marten on 3/20/2012. (mss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 09-1247-JTM
KANSAS HEALTH POLICY AUTHORITY, ET.
MEMORANDUM AND ORDER
This matter comes to the court on Don Jordan and Andrew Allison’s Motions to Dismiss
(Dkt. Nos. 52 and 54). Tanis Bernard, the original plaintiff in this case, died on November 25, 2010,
and the court granted Otis Bernard’s motion to substitute himself as the plaintiff. See Dkt. No. 59.
Mr. Allison and Mr. Jordan contend Mr. Bernard is not a proper party before the court because his
substitution was defective. Further, they contend the section 1983 and Supremacy Clause claims are
not survivable or are otherwise insufficient. This court must determine whether the substitution of
plaintiff was defective, and whether the court lacks subject matter jurisdiction over the section 1983
and Supremacy Clause claims. Because plaintiff’s counsel only represented Ms. Bernard, and
because Mr. Bernard is neither a successor nor a representative of her estate, the purported
substitution is deficient and ineffective. Additionally, the section 1983 claim does not survive and
plaintiff fails to state a Supremacy Clause claim.
I. Factual Background
The underlying facts of this dispute were outlined in the court’s previous Memorandum and
Order (Dkt. No. 47) and are incorporated herein. Previously, the court dismissed all claims against
the Social and Rehabilitation Services and the Kansas Health Policy Authority. Andrew Allison and
Don Jordan are the remaining defendants. At the April 22, 2011, status conference, the defendants
learned that the plaintiff, Tanis Bernard, died on November 25, 2010. Chief Magistrate Judge Karen
M. Humphreys directed plaintiff’s counsel to file a suggestion of death by April 29, and set the
dispositive motion deadline to May 27. Plaintiff’s counsel did not file a “Statement of Death” (Dkt.
No. 56) until June 22. The next day he filed a Motion for Substitution of Party (Dkt. No. 57) as
“Attorney for the Plaintiff” to substitute Otis Bernard as the plaintiff in this case contending Mr.
Bernard “is the Attorney-in-fact and lawful successor of Tanis Bernard.” Dkt. No. 57, pg. 1.
Plaintiff’s counsel has not indicated he filed any motions on behalf of Tanis Bernard’s estate, or that
he is acting as an attorney for her estate. To preserve their rights, defendants filed the pending
motions to dismiss before the motion deadline.
II. Legal Standards
Rule 12(b)(1) motions are generally facial or factual attacks on a court’s subject matter
jurisdiction over the allegations in the complaint. See Holt v. United States, 46 F.3d 1000, 1002-03
(10th Cir. 1995). Under a facial challenge, the court considers the factual allegations pled in the
complaint as true. Id. Because federal courts are courts of limited jurisdiction, they must exercise
jurisdiction only when specifically authorized to do so. Castenda v. INS, 23 F.3d 1576, 1580 (10th
Cir. 1994). If the court finds subject matter jurisdiction is lacking it must dismiss the plaintiff’s
complaint. Bushnell, Inc. v. Brunton Co., 659 F. Supp.2d 1150, 1157 (D. Kan. 2011) (citing
Scheideman v. Shawnee County Bd. of County Comm’rs, 895 F. Supp. 279, 280 (D. Kan. 1995)). “If
defendants challenge federal jurisdiction, plaintiffs bear the burden of showing jurisdiction is
proper.” Id. (citing Jensen v. Johnson County Youth Baseball League, 838 F. Supp. 1437, 1439-40
(D. Kan. 1993)). Conclusory allegations are insufficient. Id.
Fed. R. Civ. P. 8(a)(2) provides that a complaint must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.” The complaint must give the defendant
adequate notice of what the plaintiff’s claim is and the grounds of that claim. Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 512 (2002). This simplified notice pleading rule is justified because of the liberal
discovery rules and availability of summary judgment to dispose of unmeritorious claims. Id.
“In reviewing a motion to dismiss, this court must look for plausibility in the complaint . .
. . Under this standard, a complaint must include ‘enough facts to state a claim to relief that is
plausible on its face.’” Corder v. Lewis Palmer Sch. Dist No. 38, 566 F.3d 1219, 1223-24 (10th Cir.
2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (clarifying and affirming Twombly’s probability standard). Allegations that raise the
specter of mere speculation are not enough. Corder, 566 F.3d at 1223-24. The court must assume
that all allegations in the complaint are true. Iqbal, 129 S. Ct. at 1936-37. “The issue in resolving a
motion such as this is ‘not whether [the] plaintiff will ultimately prevail, but whether the claimant
is entitled to offer evidence to support the claims.’” Bean v. Norman, No. 008-2422, 2010 WL
420057, at *2 (D. Kan. Jan. 29, 2010) (quoting Swierkiewicz , 534 U.S. at 511). The Tenth Circuit
utilizes a two-step process when analyzing a motion to dismiss. Hall v. Witteman, 584 F.3d 859, 863
(10th Cir. 2009). First, the court must identify conclusory allegations not entitled to the assumption
of truth. Id. Second, the court must determine whether the remaining factual allegations plausibly
suggest the plaintiff is entitled to relief. Id.
III. Legal Conclusions
A. Mr. Bernard Is Not the Proper Plaintiff
Defendants argue the substitution of plaintiffs in this case was deficient because it was signed
and filed on behalf of Ms. Bernard, the deceased plaintiff, rather than on behalf of her estate. The
defendants have cited a case from this District addressing precisely this issue.
In Kasting v. American Family Mutual Insurance Company, the plaintiff husband died during
the pendency of the suit and his wife, who had not been appointed his legal representative, filed a
motion to substitute as the plaintiff through the husband’s attorney. 196 F.R.D. 595, 596-97 (D. Kan.
2000). The magistrate judge granted the motion. Id. The defendant filed an objection and for
reconsideration of that order arguing that no administrator of plaintiff’s estate had been appointed.
Id. at 597. Plaintiff’s original attorney filed a renewed motion for substitution showing that the wife
had been appointed administratrix of the estate two months after she was substituted as the plaintiff.
Id. Counsel also filed a motion stating that the wife “wishes to adopt the previous pleadings filed by
counsel for the plaintiff since her husband’s death.” Id. Upon consideration of the renewed
substitution motion, the magistrate judge determined that counsel for the deceased plaintiff lacked
authority to file motions on behalf of the plaintiff after his death. Id. The district court, on review of
the magistrate’s report and recommendation, agreed and held:
The magistrate’s ruling that the motion to substitute was procedurally deficient was
based upon the fact that once a plaintiff dies, he is no longer a party to the case, and
any motions filed on his behalf are tantamount to no motion at all. “[T]he attorney
for the deceased party . . . is not himself a party to the action and, since his authority
to represent the deceased terminated on the death, he is not a ‘representative of the
deceased party’ of the sort contemplated by the rule.” 7C CHARLES ALAN WRIGHT
& ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE,
CIVIL § 1955, at 545. See Fariss v. Lynchburg Foundry, 769 F.2d 958 (4th Cir.
1985). Fehrenbacher v. Quackenbush, 759 F. Supp. 1516 (D. Kan. 1991). See
Hilsabeck v. Lane Company, Inc., 168 F.R.D. 313, 314-315 (D. Kan. 1996). “The
attorney-client relationship is one of agency and terminates upon the client’s death.
State v. Dickens, 214 Kan. 98, 102, 519 P.2d 750 (1974).” Hilsabeck, 168 F.R.D. at
315. The rule plainly requires that a motion to substitute be made “by any party or by
the successors or representatives of the deceased party.” FED. R. CIV. P. 25(a)(1).
Turner, at the time he made the motion to substitute, was neither a party, nor a
successor or representative of the deceased party, nor did he act on behalf of anyone
other than the deceased plaintiff. Under these circumstances, no error appears in the
magistrate’s determination that the motion to substitute was deficient and should be
Id. at 598.
The statutory provision governing substitution of parties provides:
(1) Substitution if the Claim is Not Extinguished. If a party dies and the
claim is not extinguished, the court may order substitution of the proper party. A
motion for substitution may be made by any party or by the decedent’s successor or
representative. If the motion is not made within 90 days after service of a statement
noting the death, the action by or against the decedent must be dismissed.
(2) Continuation Among the Remaining Parties. After a party’s death, if
the right sought to be enforced survives only to or against the remaining parties, the
action does not abate, but proceeds in favor of or against the remaining parties. The
death should be noted on the record.
FED. R. CIV. P. 25(a)(1)-(2). First, as the Rule explicitly states, the motion must be made “by the
decedent’s successor or representative.” Id. The issue here is whether Ms. Bernard’s counsel or Mr.
Bernard qualify as a “successor or representative” of Ms. Bernard. This is determined by looking at
Kansas’s substantive law. The Kansas Court of Appeals has held that a spouse cannot be substituted
under Kan. Stat. Ann. § 60-225(a)(1) simply because that person is a spouse. Ney v. City of
Hoisington, 2010 WL 4977143, at *3 (Kan. Ct. App. 2010). Rather, a potential substitute party must
show he or she is the successor or representative of the deceased plaintiff’s estate. See id.
“[L]ongstanding Kansas cases have repeatedly held that a claim of a decedent survives to his
personal representative.” Id.
Here, Ms. Bernard’s counsel represented her until the attorney-client relationship ended with
her death. No facts suggest he represented or currently represents her estate. Ms. Bernard’s counsel
also represents Mr. Bernard. Yet Mr. Bernard, like his counsel, has not been appointed a
representative or administrator of Ms. Bernard’s estate, and nothing before the court indicates he is
her “successor or representative.” Thus, because counsel only represented the deceased plaintiff, and
Mr. Bernard is neither a successor nor a representative of the estate, the purported substitution is
deficient and ineffective. See Kasting, 196 F.R.D. at 598; Ney, 2010 WL 4977143, at *3. As such,
Mr. Allison and Mr. Jordan’s motions to dismiss may be granted on this ground alone. Nevertheless,
this court will examine defendants’ remaining arguments.
B. Survival of the Section 1983 Claim
Even if Mr. Bernard were a proper plaintiff, the defendants argue that the § 1983 claim does
not survive Ms. Bernard’s death. The survival of § 1983 actions is determined by state law as long
as it is “not inconsistent with the Constitution and laws of the United States.” Robertson v.
Wegmann, 436 U.S. 584, 588-90 (1978); see also 42 U.S.C. § 1988(a) (providing “in all cases where
[federal laws] are not adapted to the object, or are deficient in the provisions necessary to furnish
suitable remedies and punish offenses against law, the common law, as modified and changed by the
constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal
cause is held, so far as the same is not inconsistent with the Constitution and laws of the United
States, shall be extended to and govern the said courts in the trial and disposition of the cause.”)
(alterations added). Thus, the court must turn to the Kansas survival statutes. Kan. Stat. Ann. § 601801 provides:
In addition to the causes of action which survive at common law, causes of action for
mesne profits, or for an injury to the person, or to real or personal estate, or for any
deceit or fraud, or for death by wrongful act or omission, shall also survive; and the
action may be brought notwithstanding the death of the person entitled or liable to
Section 60-1802 provides that “[n]o action pending in any court shall abate by the death of either or
both the parties thereto, except an action for libel, slander, malicious prosecution, or for a nuisance.”
The Kansas Supreme Court has held that the two statutes are distinct—§ 1801 determines whether
a cause of action survives the death of a party and § 1802 provides the procedure for the continuation
of an action by substitution that does survive a party’s death. Gross v. VanLerberg, 231 Kan. 401,
404, 646 P.2d 471, 474 (1982).
Both the Tenth Circuit and this court have held that § 1983 death actions survive and are
properly asserted as survival actions by the estate of the deceased. See Berry v. City of Muskogee,
Okla., 900 F.2d 1489, 1506-07 (10th Cir. 1990); Payne v. McKune, No. 06-3010, 2007 WL 1019193,
at *2 (D. Kan. Apr. 4, 2007); see also Carter v. City of Emporia, Kan., 543 F. Supp. 354, 356 (D.
Kan. 1982). Plaintiff’s Complaint alleges defendants violated § 1983 by determining that Ms.
Bernard was ineligible for Medicaid. Section 1801 does not specifically address survivability of this
particular § 1983 claim, and the Kansas appellate courts have not ruled on this issue. This court must
determine whether plaintiff’s § 1983 claim falls within the provisions of § 1801. The Kansas courts
have provided some guidance to interpreting § 1801.
First, the Kansas Supreme Court and this court have noted that causes of action, which are
not granted survivability in the explicit language of § 1801 or any other provision of the Kansas
Code, do not survive by virtue of omission. See, e.g., Gross, 231 Kan. at 406-07, 646 P.2d at 475;
Nicholas v. Nicholas, 277 Kan. 171, 188-89, 83 P.3d 214, 226 (2004); Lowe v. Experian, 340 F.
Supp.2d 1170, 1176-77 (D. Kan. 2004) (holding that the Kansas Fair Credit Reporting Act does not
contain a provision for survivability of claims brought under the Act, and that the claim did not fall
under § 1801’s explicit terms). And Kansas has been loathe to broaden the causes of action covered
under § 1801. In Nicholas, the Kansas Supreme Court addressed whether the words “an injury to the
person” contemplated a cause of action for invasion of privacy. 277 Kan. at 189, 83 P.3d at 227. The
court stated that an action for invasion of privacy is personal in nature and must be brought by the
person subject to the invasion of privacy. Id. at 191, 83 P.3d at 227-28. The court further stated that
“‘[t]he general rule that an action for invasion of privacy may be brought only by the person who was
the actual subject of the invasion of privacy, and not by other persons such as members of his or her
family, applies in cases where the subject is deceased.’” Id. at 191, 83 P.3d at 228 (quoting 62A AM.
JUR.2D, PRIVACY § 21, p. 651). With those premises in mind, the court reasoned that a cause of
action for invasion of privacy is so personal that it does not survive the death of the party asserting
the claim. Id. at 192, 83 P.3d at 228.
Additionally, the phrase “causes of action which survive at common law” is narrow. In Lowe,
this court stated that the phrase encapsulated only most contract actions, and tort actions that resulted
in property loss rather than an injury to the person alone. 340 F. Supp.2d at 1174-75.
Here, plaintiff’s § 1983 count is based on Kansas denying her Medicaid eligibility. Neither
42 U.S.C. § 1983 nor Kan. Stat. Ann. § 60-1801 expressly provide for survival of this type of claim.
This fact alone cautions against recognizing survivability in this instance. And it is clear that the
common law did not recognize this claim, which is a creation of 19th and 20th century statutory
provisions. Nor does plaintiff’s § 1983 claim fall under the language “injury to the person” because
this type of claim contemplates that the plaintiff suffer a physical injury. See Lowe, 340 F. Supp.2d
at 1174 ; see also Nicholas, 277 Kan. at 189-91, 83 P.3d at 227-28; Bonura v. Sifers, 39 Kan. App.2d
617, 629, 181 P.3d 1277, 1285 (Kan. Ct. App. 2008) (holding medical malpractice claim survived
under § 1801). Plaintiff’s cause of action is not one for mesne profits, or for injury to real or personal
estate, or for any deceit or fraud, or for death by wrongful act or omission. Therefore, the § 1983
cause of action for reinstatement of Medicaid did not survive Ms. Bernard’s death.
C. The Supremacy Clause Claim
First, defendants argue plaintiff’s Supremacy Clause claim must fail because (1) the plaintiff
lacks standing to bring such a claim, (2) it is based on a personal right no different from the § 1983
claim, and (3) the Supremacy Clause does not give plaintiff and implied or explicit cause of action.
However, the Tenth Circuit has held that a plaintiff may proceed on a Supremacy Clause claim in
the absence of another statute providing a preemption claim. See The Wilderness Soc. v. Kane
County, Utah, 632 F.3d 1162, 1169 (10th Cir. 2011); see also Qwest Corp. v. City of Sante Fe, 380
F.3d 1258, 1266 (10th Cir. 2004) (“A party may bring a claim under the Supremacy Clause that a
local enactment is preempted even if the federal law at issue does not create a private right of
action.”). And under the Ex Parte Young doctrine and its progeny, the Supremacy Clause creates a
private cause of action for injunctive relief against state officers who are threatening to violate the
Constitution or federal laws. See Local No. 85, Am. Fed. of Gov. Employees v. City of Leavenworth,
Kan., No. Civ.A. 05-2130, 2006 WL 1007265, at *3 (D. Kan. Apr. 17, 2006); see also Burgio &
Campofelice, Inc. v. New York State Dept of Labor, 107 F.3d 1000, 1006 (2d Cir. 1997).
Regardless, plaintiff has failed to state a claim upon which relief may be granted. The
problem with plaintiff’s Supremacy Clause claim is that he has not identified a specific federal law
or federal right with which the defendants’ actions allegedly conflict. Rather he generally states that
defendants “violated and are violating the Supremacy Clause of the United States Constitution by
determining that Plaintiff is ineligible for Medicaid under Kansas laws pertaining to annuities that
are in direct conflict with the Federal laws pertaining to annuities or serve as an obstacle to the
accomplishment of the purposes and objectives of those Federal laws.” Dkt. No. 48, pg. 8. Based on
these general allegations only, plaintiff has failed to state a claim for relief under the Supremacy
D. Alleging Counts Against Dismissed Defendants and Amending the Complaint
Last, Mr. Allison and Mr. Jordan argue that the § 1983 Count and Supremacy Clause Count
are defective because they are not specifically named as defendants in those Counts. Plaintiff’s
Amended Complaint (Dkt. No. 48) alleges only that “Defendants KHPA and SRS have violated and
are violating” § 1983 and the Supremacy Clause. Both the KHPA and the SRS have been dismissed
from this case. See Dkt. No. 47. The plaintiff recognizes this error and has moved to amend the
Complaint to name Mr. Allison and Mr. Jordan as defendants in these Counts. Because, as noted
above, Mr. Bernard is not the proper plaintiff to prosecute this case and the § 1983 claim does not
survive Ms. Bernard’s death, allowing Mr. Bernard leave to amend would be futile. See Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (stating “the district court may dismiss
without granting leave to amend when it would be futile to allow the plaintiff an opportunity to
amend his complaint”). And plaintiff’s proposed amendment would not cure the defect in his
Supremacy Clause Count. Thus, his Motion for Leave to File Second Amended Complaint (Dkt. No.
61) is denied.
IT IS ACCORDINGLY ORDERED this 20th day of March 2012, that Don Jordan and
Andrew Allison’s Motions to Dismiss (Dkt. Nos. 52 and 54) are granted.
IT IS FURTHER ORDERED that plaintiff’s Motion for Leave to File Second Amended
Complaint (Dkt. No. 61) is denied.
s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE
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