Hoskinson v. High Gear Repair, Inc.
Filing
102
MEMORANDUM AND ORDER granting 93 Plaintiff's Second Motion to Amend Complaint, and granting 89 Plaintiff's Motion for Continuance of Pretrial Conference. Within seven (7) days of the date of this Memorandum and Order, Plaintiff shall el ectronically file her First Amended Complaint attached to her motion, but revised to reflect that Plaintiff was appointed as special administrator of the estate of Ronald Hoskinson by the June 26, 2013 Order Appointing Special Administrator Nunc Pro Tunc. The Final Pretrial Conference is rescheduled for 8/22/2013 at 03:00 PM by telephone before Magistrate Judge David J. Waxse. The parties are to submit their proposed Pretrial Order, revised to reflect the Court's rulings herein, by 8/15/2013. Signed by Magistrate Judge David J. Waxse on 8/7/2013. (byk)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BETTY HOSKINSON,
Individually and as Surviving Spouse of
RONALD HOSKINSON, Deceased,
Plaintiff,
v.
Case No. 11-1190-JTM-DJW
HIGH GEAR REPAIR, INC.,
Defendant.
MEMORANDUM AND ORDER
The matter is presently before the Court on Plaintiff’s Second Motion to Amend Complaint
(ECF No. 93). Plaintiff requests leave to amend her complaint to change the capacity in which she
brings this case from “surviving spouse” to “special administrator of the estate” of her late husband,
Ronald Hoskinson, deceased, and to clarify the allegations with respect to the estate’s survivor claim
under K.S.A. 60-1801. The Court previously denied without prejudice Plaintiff’s first motion to
amend her complaint, finding there was no state court order appointing her as special administrator
of the estate.1 Plaintiff has now obtained a state court order appointing her as special administrator
of the estate. As explained below, her motion is granted.
I.
Background Facts
On March 10, 2010, while working in Haskell County, Kansas, for his employer Sallee, Inc.,
Ronald Hoskinson caught his shirt sleeve in the unguarded power take off on an anhydrous ammonia
tank trailer, which had previously been refurbished and serviced by Defendant. As a result, Mr.
1
See June 13, 2013 Mem. & Order (ECF No. 86).
Hoskinson became entrapped in the device, which caused him to sustain massive and traumatic
injuries. He later died from those injuries on March 28, 2010.
On June 17, 2011, Mr. Hoskinson’s spouse, Betty Hoskinson, filed a Petition for Issuance
of Special Administration in the District Court of Gray County, Kansas, captioned In the Matter of
the Estate of Ronald Hoskinson, Case No. 11 PR-11.2 On June 20, 2011, the Gray County District
Court issued Letters Testamentary under the Kansas Simplified Estates Act, which stated:
KNOW ALL PERSONS BY THESE PRESENTS:
BETTY HOSKINSON, a resident of the state of Kansas, named as Special
Administrator of the estate of Ronald Hoskinson, deceased, having been appointed
and qualified as Special Administrator, is hereby granted Letters Testamentary issued
under the Kansas Simplified Estates Act with full power and authority as provided
by law.3
No order appointing Plaintiff special administrator of Ronald Hoskinson’s estate was entered in the
Gray County action. The Gray County action was subsequently administratively terminated on
January 9, 2012. No probate estate was ever opened.
On July 18, 2011, Plaintiff Betty Hoskinson filed this diversity action “individually and as
surviving spouse of Ronald Hoskinson, deceased.” In her Complaint (ECF No. 1), she alleged that
she “is the surviving spouse of Ronald Hoskinson and brings this action for damages sustained by
Ronald Hoskinson, as well as her individual damages.” Plaintiff further alleged in paragraph 20 of
the damages section of her Complaint that “[a]s a result of negligent acts of the defendant Ronald
Hoskinson suffered traumatic and extensive injuries, and conscious pain and suffering.” She also
alleged that as his surviving spouse, she “suffered the loss of spousal care, guidance, support and
2
Pet. for Issuance of Special Administrator, Ex. 1 to Def.’s Response to Pl.’s Mot. to Amend Compl.
(ECF No. 68-1).
3
Letters Testamentary, Ex. A to Pl.’s proposed First Am. Compl. (ECF No. 94-1) at 8.
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income, comfort, and mental anguish from the trauma and death of her husband, for which she
claims damages.”4
After Defendant failed to answer, Plaintiff filed a motion for default judgment on August 16,
2011. After holding a hearing on August 31, 2011, the Court granted the motion and entered an
Order for Default Judgment and Damage Determination on September 1, 2011. The Order entered
default judgment against Defendant in the total amount of $1,163,610.83, assessed as follows:
Conscious pain and suffering $250,000.00; Wrongful death $250,000.00; Worker’s compensation
payments $411,607.63; and Lost income $252,003.20.5
On December 7, 2011, Defendant filed a motion to set aside the default judgment and dismiss
complaint. Finding that Defendant had shown excusable neglect for its failure to answer, the Court
granted the motion and set aside the default judgment on April 12, 2012.6
On February 26, 2013, Defendant filed a motion to amend its answer to add certain defenses,
including allegations that conscious pain and suffering is legally immaterial and an heir cannot
recover for any damages that accrued to the decedent between the time of injury and death. Shortly
thereafter on March 12, 2013, Plaintiff filed a motion to amend the complaint to change the caption
from “Betty Hoskinson, individually and as Surviving spouse of Ronald Hoskinson, deceased,” to
“Betty Hoskinson, individually and as Special Administrator of the Estate of Ronald Hoskinson.”7
She also sought to amend her complaint to add allegations with respect to the survival claim.
4
Compl. (ECF No. 1) ¶ 20.
5
Order for Def. J. & Damage Determination (ECF No. 9).
6
See Mem. & Order (ECF No. 21).
7
First Am. Compl. (ECF No. 67-1) (emphasis added).
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On May 17, 2013, the Court convened the scheduled Final Pretrial Conference. After
reviewing the parties’ proposed Pretrial Order and pending motions to amend, the Court postponed
the Final Pretrial Conference and ordered the parties to submit supplemental briefing. Based upon
the supplemental briefing, the Court concluded that there was in fact no existing order which
appointed Plaintiff as special administrator.8 In the absence of such an order, the Court held that
Plaintiff could not proceed in this action as the special administrator of her late husband’s estate and
denied her motion to amend the complaint as futile.9 The denial, however, was “without prejudice
to further motion in the event Plaintiff is able to obtain an order appointing her as special
administrator of Ronald Hoskinson’s estate or otherwise show that she has been appointed special
administrator.”10
On June 26, 2013, Plaintiff filed the present motion to amend her complaint in which she
advises the Court that the state probate court has entered an order appointing her as special
administrator of the estate of Ronald Hoskinson, deceased. That Order Appointing Special
Administrator Nunc Pro Tunc was entered by the state court on June 26, 2013, and states that it is
“deemed effective from the date of [the] original oral order made on June 20, 2011.”11
II.
Standard for Amendment of Pleadings
Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings before trial. It
provides that the parties may amend a pleading “once as a matter of course” before trial if they do
8
See June 13, 2013 Mem. & Order (ECF No. 86).
9
Id.
10
Id. at 10.
11
Order Appointing Special Administrator Nunc Pro Tunc, Ex. A to Pl.’s Mem. in Supp. (ECF No.
94-2).
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so within (A) 21 days after serving the pleading, or (B) “if the pleading is one to which a responsive
pleading is required,” 21 days after service of a responsive pleading or a motion under Fed. R. Civ.
P. 12(b), (e), or (f), whichever is earlier.12 Other amendments are allowed “only with the opposing
party’s written consent or the court’s leave.”13 Rule 15(a)(2) also instructs that the court “should
freely give leave when justice so requires.”14 The court’s decision to grant leave to amend a
complaint after the permissive period is within the trial court’s discretion and will not be disturbed
absent an abuse of that discretion.15 The court may deny leave to amend upon a showing of “undue
delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.”16
A party objecting to the proposed amendment on grounds of futility has the burden to
establish its futility.17 A proposed amendment is futile if the amended claim would be subject to
dismissal.18 In determining whether a proposed amendment should be denied as futile, the court
must analyze a proposed amendment as if it were before the court on a motion to dismiss pursuant
12
Fed. R. Civ. P. 15(a)(1).
13
Fed. R. Civ. P. 15(a)(2).
14
Id.; accord Foman v. Davis, 371 U.S. 178, 182 (1962).
15
Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006).
16
Id. (quoting Foman, 371 U.S. at 182).
17
Layne Christensen Co. v. Bro-Tech Corp., No. 09-CV-2381-JWL-GLR, 2011 WL 3847076, at *5
(D. Kan. Aug. 29, 2011).
18
Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007).
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to Fed. R. Civ. P. 12(b)(6).19 In doing so, the court must accept as true all well-pleaded factual
allegations and view them in the light most favorable to the pleading party.20
III.
Plaintiff’s Second Motion to Amend Complaint (ECF No. 93)
Like her first motion to amend, Plaintiff seeks leave to amend her complaint to change the
capacity in which she brings the survival action. She seeks to amend the caption from “Betty
Hoskinson, individually and as Surviving spouse of Ronald Hoskinson, deceased,” to “Betty
Hoskinson, individually and as Special Administrator of the Estate of Ronald Hoskinson.”21 She
also seeks to amend Count VI of her complaint, entitled “Nature of Damages Actions,” to add
“Plaintiff brings this action on his behalf as Special Administrator of his estate, pursuant to K.S.A.
60-1801,” and “Plaintiff brings this action on her own behalf and the decedent’s other heirs-at-law,
who ever they may be, pursuant to K.S.A. 60-1901.”22 She also seeks to add an allegation that she
is the “Special Administrator of the Estate of Ronald Hoskinson, having been appointed to such
position by District Magistrate Judge Joey D. Duncan, in the District Court of Gray County, Kansas,
in Case No. 11 PR-11, on June 20, 2011.”23
Defendant objects to Plaintiff’s proposed amendment, arguing that the Court lacks subject
matter jurisdiction to even consider Plaintiff’s motion because she lacks Article III standing to
prosecute the estate’s survival claim and the statute of limitations has since expired. It argues that
19
Collins v. Wal-Mart, Inc., 245 F.R.D. 503, 507 (D. Kan. 2007).
20
Anderson, 499 F.3d at 1232.
21
Proposed First Am. Compl. (ECF No. 94-1) (emphasis added).
22
Id. at 6.
23
Id. at 1–2 .
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Plaintiff lacked standing at the time the original complaint was filed because she brought the action
only as an individual and as “surviving spouse,” neither of which conferred standing to prosecute
a survival claim by the estate under Kansas state law. Defendant further argues that Plaintiff cannot
now move to substitute herself as special administrator of the estate based upon the recent state court
order appointing her as such because the statute of limitations has expired and the amendment cannot
relate back under Fed. R. Civ. P. 15(c) or 17(a)(3) as those rules cannot expand jurisdiction.
A.
Effect of Nunc Pro Tunc Order
Before addressing Defendant’s jurisdictional arguments, the Court must determine the effect
of the state probate court’s June 26, 2013 Order Appointing Special Administrator Nunc Pro Tunc,
which appointed Plaintiff as special administrator of her late husband’s estate and deems itself to be
effective “from the date of [the] original oral order made on June 20, 2011.” This is important
because if the Court determines that the Nunc Pro Tunc Order establishes that Plaintiff was indeed
appointed as special administrator of her late husband’s estate on June 20, 2011, this would largely
undercut Defendant’s arguments with respect to her lack of standing at the time she filed her original
complaint and her appointment after the statute of limitations expired.
Defendant argues that Plaintiff cannot use the Nunc Pro Tunc Order from the state court
retroactively. It argues that a nunc pro tunc order cannot correct a judicial error involving the merits,
supply a judicial omission or an affirmative action which should have been taken by the court, or to
show what the court should have or intended to decide, as distinguished from what it actually did
decide. If further argues that the probate court’s failure to enter an order of appointment means there
is no prior journal entry or order to clarify or correct.
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The Court agrees with Defendant on this point, that the Nunc Pro Tunc Order obtained by
Plaintiff cannot retroactively appoint her as special administrator of the estate. K.S.A. 60-260(a)
governs orders nunc pro tunc and provides in pertinent part: “The court may correct a clerical
mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order
or other part of the record.” A nunc pro tunc order, as authorized by K.S.A. 60-260(a), however,
may not be used to correct a judicial error involving the merits, or to enlarge the judgment as
originally entered.24 The purpose of a nunc pro tunc order is to “provide a means of entering the
actual judgment of the trial court which for one reason or another was not properly recorded.”25 A
nunc pro tunc order may not be made “to correct a judicial error involving the merits, or to enlarge
the judgment as originally rendered, or to supply a judicial omission or an affirmative action which
should have been, but was not, taken by the court, or to show what the court might or should have
decided, or intended to decide, as distinguished from what it actually did decide.”26
Here, the Court finds the purpose of the Nunc Pro Tunc Order was to supply a judicial
omission which should have been, but was not, taken by the state probate court—namely the entry
of an order appointing Plaintiff as special administrator. The Court also notes there is no prior order
or journal entry for the Nunc Pro Tunc Order to correct or clarify. As the Court previously found
in its June 13, 1013 Memorandum and Order, “the Letters Testamentary [was] not an order
appointing Plaintiff as special administrator of her late husband’s estate,” and “[n]o order appointing
24
Wallace v. Wallace, 214 Kan. 344, 349, 520 P.2d 1221. 1225 (1974).
25
Id.
26
Id.
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[Plaintiff] as special administrator of the estate was ever entered.”27 While Plaintiff asserts that the
probate court made an “oral order” appointing her as special administrator, the docket sheet from
the Gray County District Court proceedings does not reflect that any “oral order” was entered on the
record, or that a hearing or conference was held. In the absence of any actual “order” that could be
corrected by the Nunc Pro Tunc Order, the Court will not treat the Nunc Pro Tunc Order as
retroactively appointing Plaintiff as special administrator of her husband’s estate on June 11, 2011.
For purposes of this motion, the Court finds that Plaintiff was appointed special administrator of the
estate on June 26, 2013, the entry date of the Nunc Pro Tunc Order.
B.
Standing
With respect to Defendant’s argument that the Court lacks subject matter jurisdiction to even
consider Plaintiff’s motion, the Court finds that it has jurisdiction over this action, including
jurisdiction to hear and decide Plaintiff’s motion. While Defendant attempts to frame the issue in
terms of Plaintiff lacking Constitutional Article III standing—the type of standing required for the
Court to have subject matter jurisdiction, the Court finds that the standing issue is more appropriately
addressed as a question of legal capacity rather than constitutional standing.28 In Citizens Concerned
27
June 13, 2013 Mem. & Order (ECF No. 86) at 8–9.
28
The Court notes the distinction between “standing” in the sense of constitutional Article III case
and controversy standing and its ordinary sense of statutory or contractual standing—i.e., being in a position
to assert or enforce legal rights or duties. See Colony Ins. Co. v. Burke, 698 F.3d 1222, 1229 n.6 (10th Cir.
2012) (distinguishing between Article III standing and statutory or contractual standing); Federal Deposit
Ins. Corp. v. Bachman, 894 F.2d 1233, 1235 (10th Cir. 1990) (“The law of standing is almost exclusively
concerned with such public law questions as determinations of constitutionality and review of administrative
or other governmental action. The term ‘standing,’ however, is used loosely in many contexts to denote the
party with a right to bring a particular cause of action. This practice leads to much confusion when it is
necessary to distinguish between ‘standing’ in its most technical sense and the concept of real party in
interest under Fed. R. Civ. P. 17(a).”) (citations omitted). See also Novartis Seeds, Inc. v. Monsanto Co.,
190 F.3d 868, 871 (8th Cir. 1999) (noting that as a matter of the English language, the word “standing” can
(continued...)
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for Separation of Church and State v. The City and County of Denver,29 the Tenth Circuit
differentiated between capacity to sue and standing to sue in that the former relates to the right to
come into court, while the latter relates to the right to relief. While lack of standing is a component
of subject matter jurisdiction and events occurring after the filing of a complaint cannot retroactively
create jurisdiction, a party’s lack of capacity to sue does not implicate subject matter jurisdiction.30
The Kansas Supreme Court has specifically addressed whether the appointment of a special
administrator after expiration of the statute of limitations bars the trial court from asserting
jurisdiction over the action.31 In Vorhees v. Baltazar,32 it held that the fact an administrator had not
been appointed and lacked capacity to be sued when the lawsuit was filed did not deprive the trial
court of subject matter jurisdiction.33 Although the Vorhees case involved the appointment of an
administrator for the estate of a deceased defendant rather than a plaintiff, the Court here finds the
Vorhees distinction between standing and “legal capacity to sue or be sued” equally applicable to a
plaintiff.
In addition to Vorhees, several other cases, including two from this district, have found
objections to the substitution of the person appointed as special administrator of an estate raise
28
(...continued)
be used to describe the legal right to complain, but “standing” in this context is entirely distinct from
“standing” for purposes of Article III).
29
628 F.2d 1289, 1300 (10th Cir. 1980).
30
Federal Deposit, 894 F.2d at 1236; Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan.
178, 185–186, 106 P.3d 483, 488 (2005).
31
Vorhees v. Baltazar, 283 Kan. 389, 394–97, 153 P.3d 1227, 1232–33 (2007).
32
Id.
33
Id.
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questions of capacity rather than standing.34 In Unzueta v. Steele,35 the court granted the plaintiff’s
motion to substitute her capacity as administrator of the estate, rejecting the defendants’ standing and
jurisdiction arguments. Similarly, in Edens v. Laubach,36 the defendants asserted that the plaintiff
lacked standing to maintain the action because he was only the heir and not the administrator of the
estate. The court—noting that the concepts of real party in interest, standing, and capacity to sue
are often confused—determined that the relevant issue was whether the plaintiff lacked the capacity
or right to bring the action.37 In Hill v. Martinez,38 the Colorado federal district court, in reaching
its decision that capacity to sue rather than standing was the relevant inquiry, found that “the judicial
determination of who should represent the estate turns not on who has suffered an injury from
actions taken against the decedent” (a standing inquiry), but rather on “who can best carry out the
duties, fiduciary and otherwise, imposed by the appointment” (a capacity inquiry).
Having found the relevant issue is whether Plaintiff has the legal capacity—as opposed to
34
Unzueta v. Steele, 291 F. Supp. 2d 1230, 1233–34 (D. Kan. 2003) (granting plaintiff’s motion to
substitute her capacity as administrator of the estate and finding that it did not raise questions of standing
and jurisdiction); Edens v. Laubach, 838 F. Supp. 510, 513–14 (D. Kan. 1993) (question of who can bring
estate’s causes of action is better characterized as one of capacity to sue, and not standing). See also
Firestone v. Galbreath, 976 F.2d 279, 282 (6th Cir. 1992) (question of whether grandchildren plaintiffs could
sue on behalf of the estate “would seem to be a question of capacity rather than standing.”); Austin Nursing
Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005) (defendant’s argument that plaintiff lacked standing
to bring survival claim because she was not appointed until after statute of limitations expired was “more
appropriately characterized as one of capacity” rather than standing); Hill v. Martinez, 87 F. Supp. 2d 1115,
1122 (D. Colo. 2000) (whether plaintiffs can sue on behalf of an estate is a question of capacity not
standing).
35
291 F. Supp. 2d at 1234.
36
838 F. Supp. 510, 513–14 (D. Kan. 1993) (A better characterization of defendants’ argument is that
plaintiff lacks the capacity or right to bring this action because the normal rule . . . is that the administrator
and not the heirs have the right to bring the estate’s causes of action).
37
Id.
38
87 F. Supp. 2d 1115, 1122 (D. Colo. 2000).
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constitutional standing—to bring a survival claim on behalf of her late husband’s estate, the Court
must determine whether Plaintiff has the requisite legal capacity to bring the estate’s survival claim
and whether the substitution would relate back to the time the original complaint was filed. A
determination of whether Plaintiff has the legal capacity to bring the survival claim on behalf of the
decedent’s estate involves an analysis of the applicable Kansas state law. As set out in the Court’s
prior June 13, 2013 Memorandum and Order, Kansas law requires that a survival action be
maintained by the decedent’s personal representative and cannot be prosecuted by a decedent’s heirs,
which would include the decedent’s surviving spouse.39 Plaintiff can thus only bring the survival
action in her capacity as special administrator of the estate and not in her capacity as surviving
spouse. In her present motion for leave to amend, Plaintiff has shown that she has the appropriate
legal capacity to assert a survival claim, having been appointed special administrator of her late
husband’s estate by the state probate court’s June 26, 2013 Nunc Pro Tunc Order.
C.
Statute of Limitations
The Court next addresses whether Plaintiff’s appointment as special administrator on June
26, 2013—after the statute of limitations expired—cures her lack of capacity at the time she filed
the complaint. The Tenth Circuit has weighed in on this issue. In Metropolitan Paving Co. v.
International Union of Operating Engineers,40 the Tenth Circuit commented that “[t]he fact that an
applicable statute of limitations may have run before the real parties were substituted is not
39
Cory v. Troth, 170 Kan. 50, 52–53, 223 P.2d 1008, 1011 (1950); Howe v. Mohl, 168 Kan. 445, 449,
214 P.2d 298, 301 (1950). See also Hembree v. Tinnin, 807 F. Supp. 109, 110 (D. Kan. 1992) (“For purposes
of a survival action, however, case law has established that the decedent’s action survives to the decedent’s
‘personal representative—not to his heirs.’”); Shinkle v. Union City Body Co., 94 F.R.D. 631, 637 (D. Kan.
1982) (“Kansas law requires that a survival action must be maintained by the personal representative of the
decedent and cannot be prosecuted by a decedent’s heirs.”).
40
439 F.2d 300, 306 (10th Cir. 1971).
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significant where the change is merely formal and in no way alters the known facts and issues on
which the action is based.”41
The Kansas Supreme Court also addressed this issue in Vorhees v. Baltazar.42 Finding the
2005 Texas Supreme Court opinion Austin Nursing Center, Inc. v. Lovato43 particularly useful, the
Vorhees court held that the appointment of an administrator for the estate of a deceased defendant
after the statute of limitations had expired cured the administrator’s lack of capacity at the time the
action was commenced.44 Even though Vorhees involved a defendant rather than plaintiff, the
Vorhees court noted it had previously ruled in Williams v. Missouri Valley Bridge & Iron Co.45 that a
plaintiff administrator without capacity can be exchanged for one with capacity who is appointed
after the statute of limitations has run.46 It also quoted its Williams characterization of an earlier
precedential holding addressing the statute of limitations when a plaintiff is substituted:
[T]he substitution of one party for another as plaintiff did not change the cause of
action, and that such amendment related back to the institution of the action and that
the statute of limitations stopped running as to the substituted plaintiff when the
action was begun rather than when the substitution was made.47
This Court also notes that it has previously allowed amendment of a complaint to add the
41
Id. (citing Mo., Kan. & Tex. Ry. Co. v. Wulf, 226 U.S. 570, 575 (1913)).
42
283 Kan. 389, 399–410, 153 P.3d 1227, 1235–40 (2007).
43
171 S.W.3d 845, 848 (Tex. 2005).
44
Vorhees, 283 Kan. at 408, 153 P.3d at 1240.
45
111 Kan. 34, 35, 206 P. 327 (1922).
46
Vorhees, 283 Kan. at 405–6, 153 P.3d at 1238 (citing Williams v. Mo. Valley Bridge & Iron Co.,
111 Kan. 34, 35, 206 P. 327 (1922)).
47
Vorhees, 283 Kan. at 402, 153 P.3d at 1236 (citing Harlan v. Loomis, 92 Kan. at 398, 140 P. 845
(1914)).
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administrator of a decedent’s estate as a plaintiff for a survival action to proceed. In Lemons v.
Board of County Commissioners,48 this Court, exercising its discretion under Federal Rules of Civil
Procedure 15 and 17, granted a motion to amend the complaint to add the administrator of the
decedents’ estates as plaintiffs. The plaintiffs had originally brought suit in their capacity as heirs
of the decedent, but subsequently sought leave to amend the complaint to add the administrator of
the decedents’ estates after the administrator was appointed.49 Like the facts alleged in the instant
motion, the defendants argued that the survival claims failed to state a cause of action under Kansas
law because the plaintiffs brought the claims as the decedents’ heirs instead of the personal
representatives of the decedents’ estates.50 Finding that the survival claims arose out the same
occurrence set out in the original complaints and that the defendants had timely constructive notice
of the claims before the limitations period expired, this Court permitted the plaintiffs to amend the
capacity in which they brought their causes of action and further permitted the amendments to relate
back to the filing date of the original complaints under Fed. R. Civ. P. 15(c).51
Another District of Kansas case allowing post-statute of limitations amendment of the
plaintiff’s legal capacity for prosecuting a survival claim is Shinkle v. Union City Body Co.52 In that
case, the court allowed the plaintiffs, who brought the action as “heirs at law of the decedent,” to
amend their complaint naming one of them as administrator of the decedent’s estate and held that
48
No. 00-2292-KHV, 2001 WL 1717856, at *4 (D. Kan. Aug. 8, 2001).
49
Id.
50
Id.
51
Id.
52
94 F.R.D. 631, 637–38 (D. Kan. 1982).
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the amendment related back to the filing of the original complaint even though the amendment was
two years after the cause of action arose.53 The Shinkle court reasoned that the amended complaint
related back to date of filing of original complaint because there had been no change in parties, and
all parties were on notice of the facts from which the claim arose.54 The court found that its decision
to allow the amendment was consistent with the Tenth Circuit’s decision in Metropolitan Paving Co.
v. International Union of Operating Engineers,55 where it found the expiration of the applicable
statute of limitations before the real parties were substituted was not significant where the change
was merely formal and did not alter the known facts and issues on which the action was based. The
Shinkle court also found that allowing the substitution to relate back was in agreement with the Tenth
Circuit’s interpretation of Kansas case law on the issue:
[W]here a cause of action is instituted by one not authorized to maintain it and
thereafter the proper party plaintiff is substituted in his place, the substitution relates
back to the commencement of the action and the statute of limitations stops running
as to the substituted plaintiff from the filing of the original action, rather than from
the date of the substitution.56
Like the Lemons and Shinkle opinions, the Court holds that Plaintiff’s proposed amendments,
including her proposed substitution as special administrator of the decedent’s estate, would relate
back to the filing of the original complaint under Fed. R. Civ. P. 15(c)(1)(B). Under that Rule, an
amendment to a pleading relates back to the date of the original pleading when “the amendment
asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or
53
Id.
54
Id. at 637.
55
439 F.2d 300, 306 (10th Cir. 1971).
56
Montgomery Ward & Co. v. Callahan, 127 F.2d 32, 36–37 (10th Cir. 1942) (citing Williams, 111
Kan. at 34, 206 P. at 327, and Harlan, 92 Kan. at 398, 140 P. at 845)).
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attempted to be set out—in the original pleading.”57 The survival claim arose out of the same conduct
and facts alleged in the original complaint. Defendant also had notice that Plaintiff was asserting
a survival claim by the substance of the allegations in the original complaint, which requested
damages sustained by the decedent for his conscious pain and suffering. Finally, as Plaintiff has
now been appointed the special administrator of the estate and would be the real party in interest on
the survival claim, Fed. R. Civ. P. 17(a)(3) allows for her substitution. Also, with respect to the
post-limitations timing of Plaintiff’s appointment as administrator, Rule 17 provides that after
substitution, the action “proceeds as if it had been originally commenced by the real party in
interest.”58 Plaintiff’s substitution as the real party in interest would thus relate back to the date the
action was originally commenced under Rule 17(a)(3). Accordingly, the Court finds Plaintiff’s
proposed amendment is not futile and grants Plaintiff’s motion.
IT IS THEREFORE ORDERED that Plaintiff’s Second Motion to Amend Complaint
(ECF No. 93) is granted. Within seven (7) days of the date of this Memorandum and Order,
Plaintiff shall electronically file her First Amended Complaint attached to her motion, but revised
to reflect that Plaintiff was appointed as special administrator of the estate of Ronald Hoskinson by
the June 26, 2013 Order Appointing Special Administrator Nunc Pro Tunc.
IT IS FURTHER ORDERED THAT Plaintiff’s Motion for a Continuance of the Pretrial
Conference (ECF No. 89) is granted. The Final Pretrial Conference is rescheduled for August 22,
2013 at 3:00 p.m. and will be held by telephone conference call initiated by the Court. The parties
are to submit their proposed Pretrial Order, revised to reflect the Court’s rulings herein, no later than
57
Fed. R. Civ. P. 15(c)(1)(B).
58
Fed. R. Civ. P. 17(a)(3).
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August 15, 2013.
Dated this 7th day of August 2013 at Kansas City, Kansas.
S/ David J. Waxse
David J. Waxse
United States Magistrate Judge
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