Eaves et al v. Pirelli Tire, LLC et al

Filing 85

MEMORANDUM AND ORDER granting 81 Motion for Summary Judgment and granting 84 Motion for Entry of Summary Judgment against defendant Jason E. Eaves. Signed by U.S. District Senior Judge Sam A. Crow on 3/10/15. Mailed to pro se party Jason E. Eaves by regular & certified mail; Certified Tracking Number: 7010 2780 0003 1927 5884 (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KIMBERLY J. EAVES, and
JASON E. EAVES,
Plaintiffs
vs.

Case No. 13-1271-SAC

PIRELLI TIRE, LLC, a foreign
limited liability company, et al.,
Defendants.
MEMORANDUM AND ORDER
The defendants filed a joint motion for summary judgment (Dk.
81) on February 2, 2015, against the plaintiff Jason E. Eaves, arguing he
lacks standing under Kansas law to bring his “direct cause of action” (Dk. 7,
¶ 416) for loss of consortium damages resulting from injuries sustained by
his wife, Kimberly J. Eaves on July 17, 2011, when the rear tire blew out on
their motorcycle causing a serious accident. When this action was filed, the
plaintiffs were represented by the same counsel, but the court has allowed
this counsel to withdraw their representation of Jason Eaves on his only
claim for “potential loss of consortium.” (Dk. 80). No counsel has entered an
appearance on behalf of Jason Eaves. Thus, the defendants properly
complied with D. Kan. Rule 56.1(f) in filing and serving on Mr. Eaves the
separate notice to a pro se litigant who opposes a motion for summary
judgment. (Dk. 83).

Mr. Eaves has not filed a response and the time for filing one has
expired. The defendants have filed a motion for entry of summary judgment
(Dk. 84). Under these circumstances, “the court will consider and decide the
motion as an uncontested motion.” D. Kan. Rule 7.4(b). The pro se notice
given Mr. Eaves stated that upon his failure to file a timely response “the
court may accept defendant’s facts as true, in which event your case may be
dismissed and judgment entered in defendant’s favor without a trial.” (Dk.
83). The court will decide the defendant’s motion as uncontested. The
defendants’ motion establishes that Kansas law does not afford standing to
Mr. Eaves to proceed with his loss of consortium claim. See K.S.A. 23-2605
(the right of action for loss of consortium “vests solely in” the injured
spouse). On the face of their motion and without any opposition from the
plaintiff Jason Eaves, the defendants are entitled to summary judgment.
IT IS THEREFORE ORDERED that the defendants’ motion for
summary judgment (Dk. 81) and motion for entry of summary judgment
(Dk. 84) against plaintiff Jason E. Eaves are granted.
Dated this 10th day of March, 2015, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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