Flowers v. United States Postal Service et al

Filing 94

ORDER denying 91 Plaintiffs' Motion for Approval of Proposed Settlement and the Stipulation for Compromise Settlement and Release of Federal Tort Claims Act Claims Pursuant to 28 U.S.C. § 2677. Signed on October 13, 2020 by Magistrate Judge Lajuana M. Counts. (Clinton, Erica)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RACHEL FLOWERS, et al.,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Case No. 17-01028-CV-W-LMC

ORDER
Pending before the Court is Plaintiffs’ Motion for Approval of Proposed Settlement and
the Stipulation for Compromise Settlement and Release of Federal Tort Claims Act Claims
Pursuant to 28 U.S.C. § 2677. (Doc. #91.) For the reasons discussed below, this Court denies the
motion.
BACKGROUND
This matter arises out of a motor vehicle accident which resulted in the death of K.S. and
injuries to D.S. (Doc. #1 at 2.) Rachel Flowers, K.S.’s and D.S.’s mother, acting individually and
as heir and personal representative of the estate of K.S., and as the parent of D.S., filed the
Complaint against the United States pursuant to the Federal Tort Claims Act. (Doc. #1 at 2.)
Plaintiffs allege claims for negligence, negligence per se and gross negligence. (Doc. #1 at 3-7.)
This matter was originally assigned to the Honorable Howard F. Sachs, who granted
Plaintiffs’ motion for partial summary judgment as to liability for causation of the collision and
death of K.S. (Doc. #56 at 3.) Judge Sachs denied the motion for summary judgment “as to the
issue of ‘any injuries’ to [D.S.],” and directed that the case be set for a bench trial. (Doc. #56 at
3.) On November 19, 2019, Judge Sachs recused himself from presiding over the bench trial and

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directed the Clerk’s office to reassign the matter. 1 (Doc. #59.) The matter was then reassigned to
the undersigned, who referred the matter to the Honorable Willie J. Epps for purposes of
conducting mediation. (Doc. ##60, 67.)
On March 10, 2020, the Honorable Willie J. Epps conducted a mediation and the parties
reached an agreement to settle the matter. (Doc. #86.) Plaintiffs now request that this Court
approve the proposed settlement. (Doc. #91.)
DISCUSSION
The Court has thoroughly reviewed the Motion for Approval of Proposed Settlement and
the Stipulation for Compromise Settlement and Release of Federal Tort Claims Act Claims
Pursuant to 28 U.S.C. § 2677. For the reasons discussed below, the Court cannot approve the
settlement on the existing record.
Pursuant to Rule 17(b) of the Federal Rules of Civil Procedure, an individual’s capacity to
sue is determined by the individual’s domicile. Fed. R. Civ. P. 17(b)(1). In Missouri, “[s]uits by
infants may only be commenced and prosecuted, either: First, by a duly appointed guardian or
conservator of such infant; or, second, by a next friend appointed for him in such suit; or, third, if
asserted by counterclaim, by a guardian ad litem.” Mo. Rev. Stat. § 507.110. This Court has
previously noted that “[e]ven a child's parent must be judicially-appointed to serve as the minor's
representative.” Elmore v. Mansfield, No. 3:11-CV-5088-DGK, 2013 WL 2666167, at *1 (W.D.
Mo. June 12, 2013). Neither a next friend nor a conservator has not been appointed in this matter.
Plaintiffs point out that a conservator for D.S. has been appointed by the 16th Judicial Circuit Court,

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Judge Sachs noted that as a senior judge, he has, recused himself from presiding over jury trials. While this matter
would be set for a bench trial, Judge Sachs recused himself in this matter due to the “likely trial demands in this case.”
(Doc. #59.)

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Jackson County, Missouri. (Doc. #91 at 2; #91-2.) That alone is not enough, as the conservator
or next friend must be appointed in this matter pursuant to section 507.110 et seq.
Second, the Court must approve any settlement regarding a minor pursuant to Mo. Rev.
Stat. § 507.184. As the Court in Elmore stated, the court has the authority to (1) hear evidence on
whether to approve or disapprove “a proposed settlement of a minor's claim; (2) authorize the next
friend to execute a release of the minor's claim; (3) approve a fee contract between the next friend
and an attorney representing the minor; and (4) order the next friend to pay the attorney's fee and
any reasonable expenses.” Elmore, 2013 WL 2666167, at *2. There is no discussion in the filings
as to the valuation of D.S.’s claims versus the recovery under the settlement. Furthermore, while
there is some discussion as to attorney’s fees, more detail is needed, such as how those attorney’s
fees are deducted, and how much is designated as attorney’s fees and how much as expenses.
Additionally, the motion seems to acknowledge that there may be liens and claims for payment or
reimbursement that have not yet been satisfied but does not provide any information as to such.
(Doc. #91 at 4.) Finally, if Plaintiffs request the appointment of D.S.’s mother as next friend, as
opposed to a conservator, then some discussion is needed as to whether or not there is a conflict
of interest between parent and child, due to both receiving settlement funds.
Third, after reviewing the Stipulation for Compromise Settlement and Release of Federal
Tort Claims Act Claims Pursuant to 28 U.S.C. § 2677, the Court is concerned that it does not
accurately reflect that a conservator has been appointed to manage D.S.’s estate.
Finally, regarding the wrongful death proceedings involving, K.S., the motion addresses
some of the statutory requirements, however, it does not address all requirements and no
supporting affidavits have been submitted. Under the wrongful death statute, this Court must
determine, inter alia, who are the Class I members, whether they were properly notified and

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apprised of settlement, the total amount of settlement and how it is to be distributed, whether the
amount of damages is appropriate pursuant to § 537.090, whether there are any liens, and whether
the settlement is fair and reasonable. Mo. Ann. Stat. § 537.080 et seq. Plaintiffs’ filings have not
addressed all of theses requirements.
CONCLUSION
For the reasons stated above, Plaintiffs’ Motion for Approval of Proposed Settlement and
the Stipulation for Compromise Settlement and Release of Federal Tort Claims Act Claims
Pursuant to 28 U.S.C. § 2677 is DENIED WITHOUT PREJUDICE. Plaintiff shall file a renewed
motion on or before October 22, 2020, and may file supporting documents for in camera review.
IT IS SO ORDERED.

/s/ Lajuana M. Counts
LAJUANA M. COUNTS
UNITED STATES MAGISTRATE JUDGE

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