Wilkerson, et al v. Stalder, et al

Filing 554

RULING denying 517 Motion to Substitute Party and granting 546 Motion to Substitute Party. Barbara Wallace Marshall, Lorraina Wallace Anderson and Justina Wallace Williams added. Herman Wallace terminated. Plaintiffs may file a motion to intervene. Oppositions must be filed within 15 days of the filing of Plaintiff's brief. Signed by Judge James J. Brady on 12/16/2013. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ROBERT KING WILKERSON, ET AL.

CIVIL ACTION

VERSUS

NO. 00-304-JJB

RICHARD STALDER, ET AL.
RULING ON MOTIONS TO SUBSTITUTE
PLAINTIFF HERMAN WALLACE
There are two motions pending before the Court in the wake of Plaintiff Herman
Wallace’s death. The first is a Motion to Substitute Plaintiff Herman Wallace (doc. 517) filed by
Plaintiffs. Defendants filed an opposition (doc. 523), and Plaintiffs filed a reply (doc 526). The
second is a Motion to Substitute Party (doc. 546) brought by Mr. Wallace’s siblings
(“Siblings”).1 Plaintiffs have filed an opposition (doc. 549) to which the Siblings have filed a
reply (doc. 552). Oral argument is unnecessary. The Court has jurisdiction pursuant to 28
U.S.C. § 1331. For the reasons stated herein, the Plaintiffs’ motion is DENIED and the Siblings’
motion is GRANTED.
BACKGROUND
Plaintiff Herman Wallace passed away on October 4, 2013, well after the commencement
of the instant action. Initially, Plaintiffs represented to the Court, in error, that Mr. Wallace died
testate, naming Maria Hinds as executor and sole beneficiary in his will. However, since then,
Plaintiffs have corrected this error.

They now represent that Mr. Wallace’s last will and

testament names Marina Drummer as the executrix (doc. 549). Plaintiffs now argue that Ms.
Drummer is the proper substitute party. Defendants allege, upon information and belief, that Mr.

1

The following Siblings are listed in the motion: Victory Wallace, Barbara Wallace Marshall, Lorraina Wallace
Anderson, and Justina Wallace Williams.

1

Wallace is survived by several brothers and sisters. That allegation is now supported by the
motion filed by the Siblings asserting their right to be substituted as a plaintiff party.
On October 15, 2013, Defendants filed a Notice of Suggestion of Death (doc. 507).
Plaintiffs seek to substitute Marina Drummer as party plaintiff, in place of Herman Wallace,
arguing that the substitution of Ms. Drummer is appropriate because she is the sole successor and
executor to Herman Wallace. In the event that the Court finds substitution of Ms. Drummer
inappropriate, Plaintiffs contend that discovery should not be stayed pending a proper
substitution.2

Defendants oppose this substitution, claiming Mr. Wallace’s siblings are

prioritized over the executrix, now Marina Drummer, as the proper party.

For support,

Defendants rely upon the hierarchy of designated beneficiaries under La. C.C. art. 2315.1.
Siblings seek to substitute themselves, also relying upon the art. 2315.1 statutory hierarchy. In
response, Plaintiffs aver that the limitations provided under art. 2315.1 pertain only to instances
when an action has not yet been instituted.
DISCUSSION
The Court must determine, pursuant to the Federal Rules of Civil Procedure and the
applicable substantive provisions of Louisiana successions law, whether the proper party to
proceed with a survival action that has already been instituted may include the succession
representative, as the sole successor and executor, to the exclusion of non-inheriting surviving
siblings. The Court must make this determination pursuant to procedural mechanism found in
Rule 25(a)(1) of the Federal Rules of Civil Procedure and in light of the substantive inheritance
laws of the State of Louisiana. See Ransom v. Brennan, 437 F.2d 513, 520 (5th Cir. 1971); see
also 6 MOORE’S FEDERAL PRACTICE § 25.12[3] (3d ed. 2010) (“Whether a person is a proper

2

The current stay on discovery (doc. 533) will be addressed in the Court’s forthcoming ruling on the Hunt/Wade
Defendants’ Motion for Partial Summary Judgment (doc. 527).

2

party is…a substantive rather than procedural question and is determined according to state
law.”).
The Louisiana Code of Civil Procedure Article 801 defines the legal successor of an
action that has already been instituted as:
(1) The survivors designated in Article 2315.1 of the Civil Code, if the action
survives in their favor; and
(2) Otherwise, it means the succession representative of the deceased appointed
by a court of this state, if the succession is under administration therein; or the
heirs and legatees of the deceased, if the deceased's succession is not under
administration therein.
La. C.C.P. art. 801. The provisions of Article 2315.1 establish a hierarchy of beneficiaries which
includes the surviving brothers and sisters of the deceased. La. C.C.P. art. 2315.1. Additionally,
Article 2315.1 provides that if no listed beneficiary exists, then the deceased’s succession
representative may be a substituted party. Id.
Louisiana state courts have found that “[t]here is a significant difference between
inheriting an instituted action and inheriting the right to institute an action.” Guidy v. Theriot,
377 So. 2d 319, 324 (La. 1979). Using this logic, the court in Guidry held that once an action
had been instituted, the prescriptive period of Article 2315 no longer applied but rather the
nonabatement and substitution provisions of other articles, including Article 801, controlled. Id.
at 325. In Nathan v. Touro Infirmary¸ 512 So. 2d 352, 355 (La. 1987), the Louisiana Supreme
Court extended its holding in Guidry finding “if the C.C. art. 2135 prescriptive period no longer
applies once the suit has been instituted, neither does the limitations of beneficiaries.” The
Plaintiffs rely upon this language to argue that Marina Drummer, and not Wallace’s siblings, is
the proper party. However, they have relied upon this language in error. See Jason R. Johanson,
Common Law “Intervention”: The Rights of Successors and the Uneasy History of Louisiana’s
Survival Action, 77 TUL. L. REV. 737, 753 (2003) (“To give effect to the dicta in Nathan…would
3

be to overrule a long history of jurisprudential strict construction of article 2315.1 and its listed
beneficiaries…Strictly construed, article 2315.1, in the presence of a specifically listed
beneficiary, excludes the succession representative from the maintenance of…the survival
action.”); see also id. at 753 (explaining that “the survival action itself, even though a property
right, is explicitly carved out from succession law by legislative mandate.”).3
In Nathan, the court specifically addressed the question of “whether a succession
representative as plaintiff may continue a C.C. art. 2315 personal injury suit brought by a victim
who died without surviving beneficiaries designated in C.C. art. 2315.” 512 So.2d at 353
(emphasis added). The court did not hold that a succession representative may be substituted
when Article 2315 beneficiaries exist. In fact, the concurrence made it clear that the legal
successor could only be substituted in this case because there were no statutory beneficiaries. A
lower court opinion is particularly instructive on this point.
In Carl v. Naquin, 637 So.2d 736 (La. Ct. App. 1 1994), the court was called upon to
determine whether a universal legatee was the proper plaintiff when the deceased had a surviving
brother. Finding that the applicable statutes and the state supreme court’s decision in Nathan
were clear and unambiguous, the court held that the surviving brother was the only proper
plaintiff as a matter of law. Id. at 738; see also Rainey v. Entergy Gulf States, Inc., 885 So.2d
1193, 1203-04, (La. Ct. App. 1 2004) (finding that the testator and particular legatee is not a

3

Plaintiffs also argue that L.C.C. art. 685 applies to the present situation. It does not. As the issue presently before
the Court concerns the substitution of parties, Art. 801 is the governing state provision. However, even if an
argument could be made that art. 685 applies, the matter before the Court would implicate the art. 685 exception.
Art. 685 states that, “the succession representative appointed by a court of this state is the proper plaintiff to sue to
enforce a right of the deceased or his succession, while the latter is under administration.” This rule applies
“[e]xcept as otherwise provided by law.” Id. The official commentary to art. 658 states that art. 2315.1 is such an
exception. Id. As the official commentary explains, “The general rule vesting the authority to file suit on behalf of
the decedent in his succession representative does not apply to a suit to recover personal injury damages caused by
an offense because that right of action ‘does not pass through the victim’s succession to be transmitted to his heirs as
an inheritance.’” (quoting Haas v. baton Rouge General Hospital, 364 So. 2d 944, 945 (La. 1978)). December 17,
2013.

4

proper plaintiff party when the deceased had surviving children); Dufrene v. Avondale Indus.,
795 So.2d 456, 459 (La. Ct. App. 4 2001) (holding that a grandchild is not a proper party
plaintiff when there are other Article 2315.1 beneficiaries). In making its decision, the court
pointed to the Nathan concurrence which “stated succinctly” that the “’legal successor’ [] could
be substituted as party plaintiff because there were no La. Civ. Code. art. 2315 survivors.” Id.
The decision required by Louisiana jurisprudence is clear. Since Mr. Wallace is survived
by brothers and sisters, they are to be given first preference as “legal successor” pursuant to
C.C.P. arts. 801 and 2315.1 and are thus the proper party plaintiffs.
Finally, out of an abundance of caution, the Plaintiffs request that Marina Drummer be
permitted to intervene in the litigation.

However, Rule 24 of the Federal Rules of Civil

Procedure requires that a motion be filed for the court’s consideration. Therefore, the Court will
not address this issue until the Plaintiffs have filed a proper motion. While Plaintiffs may
obviously address this issue as they see fit in their brief, the Court is particularly interested in any
reasons why the Siblings, or any other existing party, cannot or will not “adequately represent”
Ms. Drummer’s interest in the litigation. FED. R. CIV. P. 24(a)(2).
Conclusion
Accordingly, Plaintiff’s Motion to Substitute Plaintiff Herman Wallace (doc. 517) is
DENIED and the Siblings Motion to Substitute (doc. 546) is GRANTED.
Plaintiffs may file a motion to intervene. Oppositions must be filed within 15 days of the
filing of Plaintiffs’ brief.
Signed in Baton Rouge, Louisiana, on December 16, 2013.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
5