Wethington et al v. Swainson

Filing 41

ORDER denying 39 Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 12/11/2015. (jb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
HOLLY WETHINGTON,
individually and as next
friend for M.W., a minor,
Plaintiffs,
v.
ROBERT SWAINSON, d/b/a/
PEGASUS AIRSPORT CENTER,
Defendant.

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Case No. CIV-14-899-D

ORDER
Before the Court is Defendant’s Motion to Dismiss [Doc. No. 39], to which
Plaintiffs have responded [Doc. No. 40]. The only cognizable contention raised in
Defendant’s motion is his argument that this suit should be dismissed since Plaintiff
M.W. has now attained the age of eighteen. The Court, however, finds the more
prudent option would be to amend the caption to remove Plaintiff Holly Wethington’s
next friend status to reflect that Plaintiff has attained the age of majority. See, e.g.,
Cavanaugh ex rel. Cavanaugh v. Providence Health Plan, 699 F. Supp. 2d 1209, 1214
(D. Or. 2010). The remainder of Defendant’s contentions either have been previously
raised in his Motion for Summary Judgment and Daubert motion, or go to the merits
of the action and are thus untimely. Therefore, the Court will neither recite nor
consider those arguments.

Accordingly, Defendant’s Motion to Dismiss [Doc. No. 39] is DENIED as set
forth herein. The clerk is directed to substitute Mackenzie Wethington as plaintiff in
place of Holly Wethington, only in her status as Next Friend. The caption shall so
reflect throughout the duration of these proceedings.
IT IS SO ORDERED this 11th day of December, 2015.

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