Smith v. State Auto Property & Casualty Insurance Company et al

Filing 22

ORDER granting 14 motion to dismiss case.; finding as moot 15 motion to substitute attorney. ; finding as moot 16 motion for extension of time(Suggestions in opposition/response due by 4/15/2021 unless otherwise directed by the court., Re ply suggestions due by 4/15/2021 unless otherwise directed by the court.); finding as moot 18 motion to remand. Based on the record before the Court, the Court GRANTS the motion to dismiss and dismisses this case without prejudice. The Court finds Plaintiff's motions are moot in light of the Court's ruling. Signed on 4/1/21 by District Judge M. Douglas Harpool. (View, Pat)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
MARY ANN WOOD SMITH,

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Plaintiff,
vs.
STATE AUTO PROPERTY & CASUALTY
INSURANCE COMPANY and
EDWARD ROSE & SONS, LLC,
Defendants.

Case No. 6:20-cv-03192-MDH

ORDER
Before the Court are the following motions: Defendants’ Motion to Dismiss (Doc. 14);
Plaintiff’s Motion for Substitution of Counsel (Doc. 15); Plaintiff’s Motion For Extension Of Time
To File Motion For Substitution For Party For Good Cause Under Rule 6(B)(1) (Doc. 16); and
Plaintiff’s Motion To Remand (Doc. 18).
Defendants move to dismiss this case stating that Plaintiff filed her Petition in the Circuit
Court of Greene County, Missouri on or about May 18, 2020. Plaintiff’s Petition alleges breach
of contract and fraudulent misrepresentation. Defendants removed the case to the Western District
of Missouri on June 26, 2020. After filing answers, Defendants’ counsel then filed Suggestion of
Death on November 6, 2020 stating that upon information and belief Plaintiff died on April 1,
2020. (Doc. 13). Defendant moves the Court to dismiss the case in accordance with Federal Rule
25(a)(1) because 90 days has passed since Defendant filed its Suggestions and this matter is subject
to dismissal.

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In response to the Motion to Dismiss, Plaintiff has filed her motions. Plaintiff moves the
Court to substitute the party for good cause. However, Plaintiff’s motion states that plaintiff Mary
Ann Wood Smith died on April 1, 2020. Plaintiff’s motion further states that an estate has not
been opened in state probate court and no personal representative exists who can be substituted as
a party at this time. (Doc. 16). As such, Plaintiff asks for an extension of time to obtain an
appointment of a personal representative and to substitute the proper party.
Defendants’ oppositions to Plaintiff’s motions state that the record now further supports
dismissal of this lawsuit as it is now confirmed that Plaintiff lacked standing to bring the lawsuit
that was filed after her death. Under R.S.Mo. § 537.020, causes of action “shall not abate by reason
of death” but in case of the death of a party such cause of action shall survive to the personal
representative of such injured party.

This rule requires the appointment of a personal

representative by the probate division of the circuit court by one or more beneficiaries of the
deceased. See Sauter v. Schnuck Markets, Inc., 803 S.W.2d 54 (Mo. App. E.D. 1990). Further,
“[s]tanding is jurisdictional and lack of standing cannot be waived.” Id.
Here, the Court finds Plaintiff lacked standing to initiate this lawsuit. The lawsuit was filed
by Mary Ann Wood Smith after her death and as a result was not brought by an individual with
standing to bring such claims. The Court finds dismissal without prejudice is appropriate and that
the Court lacks jurisdiction to grant an extension of time for Plaintiff to obtain an appointment of
a personal representative or to allow substitution of a proper party.
Wherefore, based on the record before the Court, the Court GRANTS the motion to
dismiss and dismisses this case without prejudice. The Court finds Plaintiff’s motions are moot in
light of the Court’s ruling.

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IT IS SO ORDERED.
DATED: April 1, 2021
/s/ Douglas Harpool
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DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE

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