Tompkins v. Havens et al

Filing 29

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' Second Motion for Leave to Amend Complaint is GRANTED in part, as set forth above. ECF No. 26 . IT IS FURTHER ORDERED that, no later than 7 days from the date of this Memorandum and O rder, Plaintiffs shall file an amended complaint that complies with this Memorandum and Order as set forth above. IT IS FURTHER ORDERED that any request for appointment of next friend shall be filed as a separate motion. (Response to Court due by 7/26/2018.) Signed by District Judge Audrey G. Fleissig on 7/19/2018. (AFC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMES TOMPKINS, survivor of
JAVONTE TOMPKINS, now deceased,
and JA’LEN WASHINGTON,
Plaintiffs,
vs.
CRAIG HAVENS, and
ABF FREIGHT SYSTEM, INC.
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 4:17-cv-02925-AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ second motion (ECF No. 26) for
leave to amend their complaint. The case arises out of a motor vehicle collision
involving a vehicle driven by Defendant ABF Freight System, Inc.’s (“ABF”) employee,
Defendant Craig Havens, and another driven by decedent Javonte Tompkins
(“Decedent”). Plaintiff Ja’len Washington (“Washington”) was a passenger in
Decedent’s vehicle. Decedent died as a result of the collision, and Washington was
injured.
Washington and Decedent’s father, Plaintiff James Tompkins (“Tompkins”), have
now filed suit. In their first amended complaint, both Plaintiffs asserted negligence
claims against Havens (Count 1), as well as negligence and respondeat superior claims
against ABF (Count 2). Tompkins’s claims were brought pursuant to Missouri’s
wrongful death statute, Mo. Rev. Stat. § 537.080.

On June 20, 2018, the Court granted Defendants’ motion for a more definite
statement, requiring Plaintiffs to amend their complaint in order to state in separate
counts each Plaintiff’s claim against each Defendant based on each theory of relief. ECF
No. 23. Plaintiffs’ current proposed second amended complaint complies with the
Court’s June 20th Order to some degree, by separating the wrongful death claims of
Tompkins from the personal injury claims of Washington. However, Plaintiffs have not
separated their negligence and respondeat superior claims against ABF into different
counts.
Plaintiffs also seek in their current motion to add Javonte Oliver Tompkins, Jr.
(“Tompkins, Jr.”), son of Decedent, as a Plaintiff in this action, to pursue a wrongful
death claim for the death of his father.1 Plaintiffs’ proposed second amended complaint
separates the wrongful death claims of Tompkins and Tompkins, Jr. into different counts.
In response to Plaintiffs’ motion, Defendants state that they do not oppose the
addition of Tompkins, Jr. as a Plaintiff. Nor do Defendants oppose Plaintiffs’ general
attempt to comply with the Court’s June 20th Order. However, Defendants request that
the Court order Plaintiffs (1) to separate their negligence and respondeat superior claims
against ABF into separate counts, as the claims set forth different theories of relief, and
(2) to combine the wrongful death claims of Tompkins and Tompkins, Jr. as to each
Defendant, as wrongful death constitutes one cause of action against any one defendant.
1

Plaintiffs also attach as exhibits to their motion a “Petition for Appointment of
Next Friend” for Tompkins, Jr., a minor, and a related proposed order. However,
Plaintiffs do not reference these exhibits in their current motion; nor do they make any
request for an appointment of a next friend. To the extent Plaintiffs request such an
appointment, they must file an appropriate motion.
2

See Mo. Rev. Stat. § 537.080.2 (“Only one action may be brought under this section
against any one defendant for the death of any one person.”).
In reply, Plaintiffs state that they do not object to the changes Defendants request.
Those changes are also supported by the caselaw. E.g., Oberkramer v. City of Ellisville,
650 S.W.2d 286, 300 (Mo. Ct. App. 1983) (holding that where the decedent’s widow and
minor children brought their wrongful death claims in separate counts as to a single
defendant, each praying for a separate judgment, the complaint contravened § 537.080.2);
see also Mo. Rev. Stat. § 537.095.3 (providing for only one assessment of total damages
by the trier of facts followed by an apportionment of these damages among those persons
entitled thereto as determined by the court).
Therefore, the Court will grant Plaintiffs’ motion in part, and order Plaintiffs to
file a second amended complaint that separates their claims by count as follows: (1)
Tompkins and Tompkins, Jr.’s wrongful death claim against Defendant Havens; (2)
Washington’s negligence claim against Defendant Havens; (3) Tompkins and Tompkins,
Jr.’s wrongful death claim against Defendant ABF; (4) Washington’s negligence claim
against Defendant ABF; (5) Washington’s respondeat superior claim against Defendant
ABF.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Second Motion for Leave to Amend
Complaint is GRANTED in part, as set forth above. ECF No. 26.

3

IT IS FURTHER ORDERED that, no later than 7 days from the date of this
Memorandum and Order, Plaintiffs shall file an amended complaint that complies with
this Memorandum and Order as set forth above.
IT IS FURTHER ORDERED that any request for appointment of next friend
shall be filed as a separate motion.

________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 19th day of July, 2018.

4