Hooper et al v. Biloxi Regional Medical Center, Inc. et al

Filing 102

ORDER denying 94 Motion to Dismiss Signed by Chief District Judge Louis Guirola, Jr on 09/03/2014 (Guirola, Louis) (Main Document 102 replaced on 9/3/2014) (JCH).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
CHARLES HOOPER and LINDA HOOPER,
Wrongful Death Beneficiaries of Ryan Hooper
v.

PLAINTIFFS

CAUSE NO. 1:13CV102-LG-JCG

EMCARE, INC.

DEFENDANT
consolidated with

CHARLES HOOPER and LINDA HOOPER,
Wrongful Death Beneficiaries of Ryan Hooper
v.

PLAINTIFFS

CAUSE NO. 1:14CV158-LG-JCG

JENNIFER J. JURICH, formerly known
as Jennifer J. Henderson; GEORGE LOUKATOS;
AMANDA PACHECO; and BILOXI H.M.A., LLC

DEFENDANTS

MEMORANDUM OPINION AND ORDER DENYING
DEFENDANTS’ MOTION TO DISMISS
CAUSE NUMBER 1:14CV158
BEFORE THE COURT is the Motion to Dismiss Cause Number 1:14cv158
[94] filed by Biloxi H.M.A., LLC, and Amanda Pacheco. EmCare, Inc., Jennifer L.
Jurich, and George Loukatos have joined in the Motion. The plaintiffs have filed a
response in opposition to the Motion, and the defendants have filed a rebuttal.
After reviewing the submissions of the parties, the record in this matter, and the
applicable law, the Court finds that the Motion to Dismiss should be denied.
BACKGROUND
Twenty-four-year-old Ryan Hooper went to the emergency room at Biloxi
Regional Medical Center, complaining of a severe headache. He was diagnosed

with an acute headache, given medication, and discharged. Less than forty-eight
hours later, Ryan went into cardiac arrest at the Hard Rock Hotel in Biloxi,
Mississippi, and he was once again taken to Biloxi Regional Medical Center. He
died a short time later, and an autopsy revealed that Ryan suffered from meningitis
at the time of his death.
Ryan’s parents filed cause number 1:13cv102 against Biloxi Regional Medical
Center, Inc., Jennifer L. Jurich, Jennifer L. Henderson, George Loukatos, Amanda
Pacheco, Biloxi H.M.A., Inc., and EmCare, Inc., asserting the following claims
against the defendants: medical negligence, respondeat superior, res ipsa loquitur,
negligent retention and supervision, and wrongful death. The plaintiffs’ claims
against Biloxi Regional were dismissed with prejudice pursuant to Fed. R. Civ. P.
12(b)(6). The plaintiffs’ claims against Pacheco, Loukatos, Henderson, Jurich, and
Biloxi H.M.A. were dismissed without prejudice for failure to provide the sixty-day
notice of claim required by Miss. Code Ann. § 15-1-36(15). EmCare is the only
remaining defendant in cause number 1:13cv102.
On April 10, 2014, the plaintiffs filed cause number 1:14cv158 against
Jennifer J. Jurich (formerly known as Jennifer J. Henderson), George Loukatos,
Amanda Pacheco, and Biloxi H.M.A., asserting claims of medical negligence,
respondeat superior, res ipsa loquitur, negligent retention and supervision, and
wrongful death. The plaintiffs filed a Motion to Consolidate the two lawsuits, and
the Motion was granted on July 18, 2014. The Order consolidating the cases
specifically stated that the defendants’ rights and defenses are preserved and “are
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not waived and/or otherwise moot due to the consolidation . . . .” (Order at 2, ECF
No. 17). The defendants now argue that the plaintiffs’ second lawsuit should be
dismissed, because it violates Mississippi’s wrongful death statute as well as
Mississippi’s doctrine against claim-splitting.
DISCUSSION
Mississippi’s wrongful death statute provides, “[T]here shall be but one (1)
suit for the same death which shall ensue for the benefit of all parties concerned,
but the determination of such suit shall not bar another action unless it be decided
on its merits.” Miss. Code Ann. § 11-7-13. The Mississippi Supreme Court has
explained that the basis for requiring only one wrongful death lawsuit is derived
from the principle of priority jurisdiction as well as Rule 19 of the Mississippi Rules
of Civil Procedure. Long v. McKinney, 897 So. 2d 160, 172 (¶48) (Miss. 2004).1
In Long v. McKinney, Lori McKinney filed a lawsuit on behalf of the wrongful
death beneficiaries of her father, Huey P. Long. Long, 897 So. 2d at 164 (¶12). The
following day, McKinney’s three brothers filed a separate lawsuit on behalf of
Long’s wrongful death beneficiaries. Id. at 164 (¶13). The brothers requested
consolidation of the two wrongful death lawsuits, but their request was denied. Id.
at 164, 167 (¶14, ¶25). The case was appealed to the Mississippi Supreme Court,

1

The principle of priority jurisdiction dictates that “where two suits between
the same parties over the same controversy are brought in courts of concurrent
jurisdiction, the court which first acquires jurisdiction retains jurisdiction over the
whole controversy to the exclusion or abatement of the second suit.” Id. at 172
(¶50) (quoting Hancock v. Farm Bureau Ins. Co., 403 So. 2d 877, 878-79 (Miss.
1981)). Miss. R. Civ. P. 19 pertains to joinder of necessary parties.
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which held:
Consolidation of suits presupposes that there are two suits to
consolidate. Because we hold that wrongful death claims must be
brought in a single suit, there cannot be two suits to consolidate.
Where, as here, a second suit is filed, it is of no effect and should be
dismissed . . . . The rights of all claimants are preserved in the
original suit and are fully addressed by joinder. Each claimant, as a
matter of right, may join in the litigation and participate as fully as
any other claimant. The interests of claimants not joining in shall be
represented by counsel for the claimant filing the suit.
Long, 897 So. 2d at 174 (¶58).
However, the United States District Court for the Northern District of
Mississippi has held that the Long court’s pronouncements do not apply where the
same plaintiff files separate wrongful death lawsuits against different defendants.
See Creel v. Hartford Acc. & Indem. Co., Nos. 1:09cv61-GHD-DAS & 1:11cv86-GHDDAS, 2012 WL 843177 (N.D. Miss. Mar. 12, 2012). In Creel, the wife of a man who
died in a crane accident filed a wrongful death lawsuit against Shepard Niles Crane
& Hoist Corporation and Capital Safety, Inc. Id. at *1. She then amended her
complaint to delete Shepard Niles and add two defendants– Konecranes, Inc. d/b/a
Crane Pro services, and Crane Parts, Inc. Id. A motion to dismiss for lack of
jurisdiction filed by Crane Parts was granted by the Court. Id. The plaintiff then
filed a second wrongful death lawsuit against Konecranes d/b/a Morris Material
Handling and Eagle Plant Equipment. Id. Konecranes d/b/a Morris filed a motion
to dismiss, arguing that the second lawsuit violated the wrongful death statute. Id.
The plaintiff filed a motion to consolidate the two cases pursuant to Fed. R. Civ. P.

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42. Id. The district court noted the Long court’s statement that consolidation is not
permissible for wrongful death claims, but it held that the Long decision was
distinguishable, because it “concerned an issue of whether two suits brought by
different heirs could be consolidated and did not concern the filing of a second suit
against defendants not sued in the original action.” Id. at *5. The court refused to
dismiss the second wrongful death lawsuit, and it exercised its broad authority to
consolidate the lawsuits pursuant to Fed. R. Civ. P. 42. Id. at *5-6.
In the present case, the same plaintiffs have filed two separate complaints that
have been consolidated by this Court. The two lawsuits are filed against two
separate sets of defendants. The Mississippi wrongful death statute and the Long
decision merely require all wrongful death plaintiffs to pursue their claims in the
same lawsuit as opposed to having multiple lawsuits, by separate wrongful death
beneficiaries, controlled by different attorneys that each purport to represent the
interests of all wrongful death beneficiaries.2
Long does not directly address the procedural situation presented here.
Instead, the Court finds the Creel decision persuasive, and it is the only case
applying Mississippi law that directly addresses the issues presented here. It is
worth noting that the plaintiffs could have amended their original lawsuit to
rename the defendants that were initially dismissed for lack of notice. Assuming
2

The Long court reasoned that “[t]he rights of all claimants are preserved in
the original suit and are fully addressed by joinder.” Long, 897 So. 2d at 174 (¶58).
Similarly, the wrongful death statute provides that one lawsuit “shall ensue for the
benefit of all parties concerned.” Miss. Code Ann. § 11-7-13.
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the claims were not time barred, plaintiffs could have elected to voluntarily dismiss
the original complaint and file a new claim naming all of the defendants. While
these alternatives may have been the preferred procedure, in essence the
consolidation of the two lawsuits has produced the same result. Thus, it would be
inequitable and inefficient to dismiss the plaintiffs’ claims against these defendants
simply because, after curing the statutory notice requirements, they chose to file a
separate complaint against the remaining defendants. As a result, the defendants’
Motion for dismissal pursuant to Miss. Code Ann. § 11-7-13 is denied
The defendants also argue that the doctrine against claim-splitting prohibits
the plaintiffs’ second lawsuit.
The rule against claim-splitting requires a plaintiff to assert all of its
causes of action arising from a common set of facts in one lawsuit. By
spreading claims around in multiple lawsuits in other courts or before
other judges, parties waste “scarce judicial resources” and undermine
“the efficient and comprehensive disposition of cases.”
Carpenter v. Kenneth Thompson Builder, Inc., Nos. 2011-CT-01028-SCT & 2011-CT01933-SCT, 2014 WL 4100003 at *3 (¶11) (Miss. Aug. 21, 2014) (quoting Katz v.
Gerardi, 655 F.3d 1212, 1217 (10th Cir. 2011)). In order for the doctrine prohibiting
claim-splitting to apply, both lawsuits must involve the same parties, or at least
parties that represent the same interest. Id. (citing Katz, 655 F.3d at 1217). “The
correct analysis to apply when determining whether the ‘identity-of-parties’ element
is met is to anticipate whether a final judgment will preclude the parties from
further litigation based on the same set of facts.” Id. at *4 (¶14).
In the present case, the defendants have not demonstrated that a judgment
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against EmCare in the first lawsuit would preclude further litigation against the
defendants named in the second lawsuit. Therefore, the identity of parties
requirement is not satisfied. Furthermore, the these two lawsuits will not result in
wasted judicial resources or inconsistent results from different courts since the two
cases have been consolidated for trial.
CONCLUSION
For the foregoing reasons, the Court finds that the defendants’ Motion to
Dismiss should be denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Motion to
Dismiss Cause Number 1:14cv158 [94] filed by Biloxi H.M.A., LLC, and Amanda
Pacheco is DENIED.
SO ORDERED AND ADJUDGED this the 3rd day of September, 2014.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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