Pfeifer v. Thompson et al

Filing 156

MEMORANDUM OPINION AND ORDER Signed by Senior Judge Thomas B. Russell on 2/14/2017 granting 141 Motion to Substitute Party. Mark Pfeifer, Administrator of the Estate of James Kenneth Embry shall be substituted for Robbie Emery Burke, Administrat rix of the Estate of James Kenneth Embry as the named Plaintiff in this action. An agreed scheduling order is due by 2/24/2017. Telephonic Scheduling Conference set for 3/7/2017 at 11:30 AM before Senior Judge Thomas B. Russell. cc: Counsel(JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:15-CV-00007-TBR
(Consolidated with 5:15-CV-00015-TBR)
ROBBIE EMERY BURKE, Administratrix
of the Estate of James Kenneth Embry

PLAINTIFF

v.
LADONNA THOMPSON, et al.

DEFENDANTS

Memorandum Opinion and Order
This matter is before the Court upon Plaintiff’s motion to substitute “Mark
Pfeifer, Administrator of the Estate of James Kenneth Embry” for “Robbie Emery
Burke, Administratrix of the Estate of James Kenneth Embry” as the named
Plaintiff in this action.

[DN 141.]

Defendant Steve Hiland responded.

[DN 144.]

Additionally, the Court ordered the parties to file supplemental briefs regarding the
effect of a Daviess County, Kentucky District Court ruling upon this case.
149.]

[DN

The parties filed their briefs, and the Daviess District Court issued its

decision. [DNs 150-154.]

The time for all other filings has passed, and Plaintiff’s

motion is ripe for adjudication.

For the following reasons, that motion [DN 141] is

GRANTED.
I. Facts and Procedural History
The Court previously summarized the facts of this case in some detail in its
May 4, 2016 Memorandum Opinion and Order.

[DN 127.]

Although not all those

facts are pertinent to the instant motion, the basics are as follows: James Kenneth
Embry died of starvation and dehydration after refusing thirty-five of his final

thirty-six meals at the Kentucky State Penitentiary (KSP), where he was an
inmate.

[Id. at 1.] Following his death, the Kentucky Department of Corrections

conducted a Critical Incident Review, which concluded that Embry’s death
“occurred as a result of a systemic failure at [KSP].”
federal lawsuits followed Embry’s death.

[DN 105-1 at 19.]

Two

The first, Pfeifer v. Thomson, No. 5:15-

CV-00007, was filed in this Court by Mark Pfeifer, who had been appointed
administrator of Embry’s estate by the Daviess District Court.

The second, Burke

v. Correct Care Solutions, LLC, 5:15-CV-00015, was also filed in this Court by the
current named plaintiff, Robbie Emery Burke.

She was appointed Embry’s

administratrix in Lyon County, where KSP is located.
Dr. Steve Hiland, one of the several remaining defendants in this suit,
succeeded in having the Lyon County probate action dismissed because under
Kentucky law, “[a] person’s domicile is not changed by his involuntary confinement
in a penitentiary.”

Ferguson’s Adm’r v. Ferguson’s Adm’r, 73 S.W.2d 31 (Ky. 1934).

The Daviess District Court then proceeded to substitute Burke for Pfeifer in its
probate action.

Accordingly, this Court made the same substitution in Case No.

5:15-CV-00007, and then consolidated this case with No. 5:15-CV-00015. See [DN
75; DN 86.]

After the Court consolidated the federal cases, the probate court

swapped estate administrators a second time, substituting Pfeifer back in and
relieving Burke of her duties. See [DN 142-3.]

Based upon that substitution,

Plaintiff’s instant motion seeks to reinstate Pfeifer as Embry’s representative in
this action.

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Such a motion would ordinarily be a routine matter.

However, this case has

been complicated by Hiland’s state-court motion to dismiss the Daviess District
Court probate action for lack of jurisdiction.

In that motion, Hiland claimed that

Embry was a resident of Henderson County, Kentucky at the time of his death.

As

such, Hiland argued that the Daviess District Court lacked jurisdiction to appoint
the administrator of Embry’s estate.

In turn, Hiland repeatedly argued before this

Court that because the state court had no authority to appoint an administrator,
neither Burke nor Pfeifer possessed an interest in this case sufficient to confer upon
them Article III standing.

Because the plaintiff must have standing in order for

this court to have subject-matter jurisdiction, Hiland further claimed that if the
Daviess District Court dismissed its probate action, this suit must also be
dismissed.

See generally [DN 151.]

In response, Burke argued that if the Daviess

District Court granted Hiland’s motion to dismiss, either she or Pfeifer could reopen probate in Henderson County, and the doctrine of relation-back would allow
the estate’s federal pleadings to be amended accordingly. See generally [DN 150.]
The Daviess District Court denied Hiland’s motion to dismiss. See [DN 1541.]

The court held that Embry’s domicile at the time of his death was Daviess

County, “his childhood home as well as his home for many years as an adult.”

[Id.

at 7.]

See

Hiland is currently appealing that ruling to the Daviess Circuit Court.

[DN 155.]

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II. Discussion
Federal Rule of Civil Procedure 25(c) provides that “[i]f an interest is
transferred, the action may be continued by or against the original party unless the
court, on motion, orders the transferee to be substituted in the action or joined with
the original party.”

Fed. R. Civ. P. 25(c).

Plaintiff argues that because the

Daviess District Court substituted Pfeifer for Burke as administrator of Embry’s
estate, Burke’s interest in the case before this Court has likewise been transferred
to Pfeifer, warranting substitution of the named plaintiff under Rule 25(c).

In

response, Hiland admits that “Burke will . . . possess an interest that is capable of
being transferred to Pfeifer if the probate court determines it has jurisdiction over
the Estate.”

[DN 144 at 2.]

Hiland’s arguments against substitution are instead

centered upon his unwavering belief that the Daviess District Court does not have
jurisdiction to appoint Embry’s administrator, because Embry’s last place of
residence was Henderson County.
The Daviess District Court, however, held otherwise.
ruling, Hiland’s arguments are now unavailing.

And because of that

Under Kentucky law, ordinarily

only final judgments of the lower court are appealable.

19 Ky. Prac., Appellate

Prac. § 2:2 (2016 ed.). Conversely, probate court orders that do not “finally
adjudicate all the issues related to the probate of the estate” seem to be treated as
non-appealable interlocutory orders. Goodman v. Goodman, No. 2007-CA-001668DG, 2008 WL 4182348, at *4 (Ky. Ct. App. Sept. 12, 2008); see also Ky. R. Civ. P.
54.01.

Because of this finality requirement, it is possible that Hiland’s appeal to

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the Daviess Circuit Court is not well-taken. See KRS 24A.120(2)-(3); Mullins v.
First Am. Bank, 781 S.W.2d 527, 528 (Ky. Ct. App. 1989) (“[T]he district court
retains jurisdiction over the matter until such time as a will contest, or adversary
proceeding, is commenced in the circuit court.”). However, that determination is
wholly within the province of the state court.

Nevertheless, even if Hiland’s appeal

is premature (and it may not be), the Court could still proceed in this case.

Under

Kentucky law, a notice of appeal does not automatically stay the enforcement of a
judgment.

Ky. R. Civ. P. 62.03.

Put simply, for this Court’s purposes, the Daviess Circuit Court’s order is
enough.

If at a later point in this case, the Court is made aware that the courts of

the Commonwealth no longer hold that Daviess County was Embry’s last domicile,
this Court can easily revisit the issues thoughtfully raised by Hiland.

For now,

though, this case will proceed with Pfeifer as the named representative of Embry’s
estate. See Person v. Fidelity & Cas. Co., 92 F. 965, 968 (6th Cir. 1899) (when state
probate court orders substitution of estate administrator, proper for federal court to
substitute as well).

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III. Conclusion
For the foregoing reasons, IT IS HEREBY ORDERED:
Plaintiff’s motion to substitute parties [DN 141] is GRANTED.

“Mark

Pfeifer, Administrator of the Estate of James Kenneth Embry” shall be substituted
for “Robbie Emery Burke, Administratrix of the Estate of James Kenneth Embry”
as the named Plaintiff in this action.
A telephonic scheduling conference shall be held March 7, 2017 at
11:30 a.m. Central time.

Counsel must call 1-877-848-7030, then give the access

code 2523122 and #, then when prompted press # again to join the call.
The parties shall confer with each other and file an agreed scheduling
order with the Court by February 24, 2017.

February 14, 2017

CC: Counsel of Record

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