Soto et al v. City Of Memphis, Tennessee et al

Filing 31

ORDER granting 16 Motion to Dismiss, 20 Motion to Join Motion to Dismiss. Signed by Magistrate Judge Charmiane G. Claxton on 10/11/2017. (Claxton, Charmiane)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FELIPE AND SOFIA SOTO,
as parents, next of kin of LUIS
SOTO, deceased, for the benefit
of K.S., a minor,
Plaintiffs,
v.

Case No. 2:17-cv-2323-cgc

CITY OF MEMPHIS, MICHAEL RAWLINGS,
in his official capacity as the Police Director
of the Memphis Police Department,
OFFICER MARSHALL SMITH, individually
and in his official capacity as a Police Officer
with the Memphis Police Department,
Defendants.

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

Before the Court is Defendants’ City of Memphis (“City”), Michael Rawlings
(“Rawlings”), and Officer Marshall Smith (“Smith”), in his official capacity’s (collectively
“Defendants”), Motion to Dismiss (Docket Entry “D.E.” #30”) and Defendant Smith, in his
individual capacity’s, Motion to Join the City Defendants’ Motion to Dismiss (D.E. #20). This
matter is before the undersigned pursuant to 28 U.S.C. § 636, Rule 73(b) of the Federal Rules of
Civil Procedure, and the consent of the parties. (D.E. #13). At the outset, Defendant Smith’s
Motion to Join the City Defendants’ Motion to Dismiss is well-taken and is GRANTED. Thus,
the Motion to Dismiss shall be considered as one filed by all Defendants as named in this suit.

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I. Introduction
On April 7, 2017, Plaintiffs Felipe and Sofia Soto (collectively “Plaintiffs”) filed a
Complaint in the Circuit Court of Tennessee for the Thirtieth Judicial District at Memphis. The
Complaint was removed to this Court on May 10, 2017.
The allegations contained in the Complaint surround the death of Luis Soto, Plaintiffs’
son, who was killed on Sunday, April 10, 2016. (Compl. ¶ 1). Plaintiffs’ allege that their son,
Luis Soto, was divorced from Karen Salinas (“Salinas”) and shared joint custody of their minor
daughter, K.S. (Id. ¶ 7). Salinas was engaged to marry Smith. (Id. ¶ 9). Luis Soto, who lived
with Plaintiffs, had visitation with K.S. every other weekend with Salinas dropping K.S. off on
Friday mornings and picking her up at the Soto residence on the following Monday. (Id. ¶ 12).
Many times, however, K.S. would stay with Luis Soto for longer than Friday through Monday.
(Id. ¶ 13).
On or about April 10, 2016, Salinas asked Luis Soto to bring K.S. to her that day instead
of picking her up on Monday. (Id. ¶ 15). Luis Soto communicated to Salinas that he and K.S.
had plans to go to a birthday party that evening and asked Salinas to pick K.S. up the next
morning as planned. (Id. ¶ 17). Plaintiffs allege that Salinas expressed frustration to Smith and
others concerning Luis Soto’s refusal to bring K.S. to her that evening. (Id. ¶ 19). Plaintiffs
allege that Smith and Luis Soto exchanged telephone communications and text messages that
day, of which Salinas was aware. (Id. ¶ 20). Plaintiffs allege that Salinas was aware that Smith
intended to intimidate and, if necessary, harm Luis Soto. (Id. ¶ 21).
Ultimately, Luis Soto and Salinas agreed to exchange custody of K.S. that evening after
the birthday party. (Id. ¶ 24). Salinas refused to pick up K.S. at the Soto residence on April 10,

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2016. (Id. ¶ 22). Instead, Salinas requested that Luis Soto bring K.S. to the Shell/Flash Market
located at 1781 Getwell Road, Memphis, Tennessee. (Id. ¶ 23). Luis Soto arrived with K.S. and
parked in a parking space, and Salinas and Smith parked behind Luis Soto’s vehicle, blocking
him in. (Id. ¶ 26). Within minutes of Luis Soto getting K.S. out of the car and handing her over
to Salinas, Smith shot Luis Soto four times. (Id. ¶¶ 27-28).

Plaintiffs aver that the gunshots

were either “allegedly to comply with a police officer’s commands or without warning.” (Id. ¶
50). Luis Soto died as a result of the gunshot wounds. (Id. ¶¶ 30-31).
Plaintiffs allege that the policies, practices, customs, training and supervision of the City
and the Memphis Police Department (“MPD”) were the driving force behind the deprivation of
constitutional rights sustained by Luis Soto. (Id. ¶¶ 34, 39-40). Plaintiffs allege that the City and
Rawlings have created a custom, pattern, and practice of exonerating its officers who use
excessive force. (Id. ¶ 36). Plaintiffs allege that Luis Soto was the fourth victim of a police
shooting in the first four months of 2016 and that the MPD fails to thoroughly investigate policerelated shootings. (Id. ¶¶ 37-38). Plaintiffs further allege that the City and Rawlings were aware
specifically of Smith’s history of violating MPD policies and violating the rights of citizens of
the City yet still provided him with the weapon that may have killed Luis Soto. (Id. ¶ 41).
Based upon the foregoing allegations, Plaintiffs assert causes of action under the
following: 42 U.S.C. § 1983 (“Section 1983”) (Id. ¶¶ 44-71); and, the Tennessee Governmental
Tort Liability Act, Tennessee Code Annotated § 29-20-101, et seq. (“GTLA”) (Id. ¶¶ 72-88).

II. Analysis
As a threshold issue, Defendants’ Motion to Dismiss asserts that Plaintiffs, as parents of
the decedent who was survived by a minor child, K.S., lack standing to bring this cause of action.

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Plaintiffs have brought this suit in three capacities: (1) as parents; (2) as next of kin of Luis Soto,
deceased; and (3) for the benefit of K.S., minor. Although Defendants referred to the issue as
one of standing, the Court finds that it the motion also raises questions with regard to capacity to
sue. Tri-Med Finance Co. v. National Century Fin. Enterprises, Inc., 2000 WL 282445, *4 (6th
Cir. Mar. 6, 2000); Firestone v. Galbreath, 976 F.2d 279, 282 (6th Cir. 1992); Glickstein v. Sun
Bank/Miami N.A., 922 F.2d 666, 670 (11th Cir. 1991); Knierim v. Leatherwood, 542 S.W.2d
806, 808 (Tenn. 1976); see also DXE Corp. Liquidating Trust v. L3 Comm. Corp., No. 3:12-cv98, 2014 WL 3945892, at *3 (S.D.Ohio Aug. 12, 2014); Hill v. Martinez, 87 F. Supp. 2d 1115,
1122 (D. Colo. Feb. 11, 2000); Edens v. Laubach, 838 F. Supp. 510, 513-14 (D. Kan. 1993).
The difference between capacity to sue and standing is that the former relates to the right to
come into court, while the latter relates to the right to relief. Id. (citing Citizens Concerned for
Separation of Church and State v. The City and County of Denver, 628 F.2d 1289, 1300 (10th
Cir. 1980)); see also 6A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 1542 at 327 (1990) (capacity is “a party’s personal right to litigate in
federal court”); Allen v. Wright, 468 U.S. 737 (1984) (standing and the right to relief are tied to
the determination of whether the plaintiff can show an injury in fact traceable to the conduct of
the defendant).
The Sixth Circuit has held that challenging the lack of capacity to sue is governed by
Rule 9 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 9(a)(1)-(2); Miller v. City of
Cincinnati, 970 F. Supp. 2d 534, 540-541 (S.D. Ohio May 9, 2012); Theresa Srock v. United
States, 2006 WL 2460769, No. 04-CV-72788-DT, at *2-*5 (E.D. Mich. Aug. 23, 2006). 1
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Rule 9(a) states, in pertinent part, as follows:
(a) Capacity or Authority to Sue; Legal Existence
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However, in federal courts, a motion under Rule 12(b)(6) for failure to state a claim upon which
relief may be granted may properly be utilized to assert a defense of lack of capacity to sue.
Theresa Srock v. United States, No. 04-CV-72788-DT, 2006 WL 2460769, at *4 (E.D.Mich.
Aug. 23, 2006) (citing NAACP Labor Comm. v. Laborer’s Int’l Union of N. Amer., 902 F. Supp.
688, 699 (W.D.Va. 1993); see also Capital City Energy Group, Inc. v. Kelley Drye & Warren
LLP, No. 2:11-cv-00207, 2011 WL 5175617, at *2 (quoting Weiner v. Winters, 50 F.R.D. 306,
307-08 (S.D.N.Y. 1970)).
The motion will be analyzed with reference to each of the proposed capacities in which
Felipe and Sofia Soto propose to bring the instant suit.

A. As Parents
As parents, Plaintiffs aver that they “had a constitutional right of familial association with
their son and granddaughter,” including the “constitutional right to society and companionship of
their son and granddaughter.” (Id. ¶ 70). Plaintiffs allege that, as a direct result of Defendants’
acts and omissions, they “lost their son and suffered great losses of a personal and pecuniary
nature, including, but not limited to, the loss of companionship, society, and support of the
decedent as well as grief, sorrow, and mental suffering.” (Id.) Plaintiffs state that they had
(1) In General. Except when required to show that the court has jurisdiction, a
pleading need not allege:
(A) a party’s capacity to sue or be sued;
(B) a party’s authority to sue or be sued in a representative capacity; or
(C) the legal existence of an organized association of persons that is made a party.
(2) Raising Those Issues. To raise any of those issues, a party must do so by
specific denial, which must state any supporting facts that are peculiarly within
the party’s knowledge.
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“close emotional ties to their son, Luis Soto, and their granddaughter, K.S.” and that Defendants
violated these rights. (Id.)
Plaintiffs request damages as the parents of Luis Soto because they were emotionally
injured for life. (Id. ¶ 88). The injuries for which they seek compensation as his parents include,
but are not limited to, the following: (1) physical injuries, including Luis Soto’s death and their
resulting loss of familial association with him; (2) conscious, physical and emotional pain and
suffering of Luis Soto from the time of the injury until his death, as well as his loss of the
pleasure of life; (3) medical expenses incurred for Luis Soto; (4) funeral expenses incurred for
Luis Soto; (5) pecuniary value of the life of Luis Soto, including, but not limited to, the loss of
companionship and consortium for both Felipe and Sofia Soto; (6) reckless or negligent
infliction of emotional distress upon Plaintiffs; (7) pre-judgment interest and/or post-judgment
interest, statutory, and discretionary costs to the extent permitted by law; (8) attorneys’ fees
pursuant to applicable law, including, but not limited to, 42 U.S.C. § 1988; (9) injunctive and/or
declaratory relief that the acts and conduct set forth above were unconstitutional, and precluding
them from engaging in such activities in the future; (10) any and all compensatory and punitive
damages; (11) all such further relief, both general and specific, to which they may be entitled
under the premises.
Under Tennessee law, the right to prosecute an action for wrongful death passes in an
order created by statute:
The right of action that a person who dies from injuries received from another, or
whose death is caused by the wrongful act, omission, or killing by another, would
have had against the wrongdoer, in case death had not ensued, shall not abate or
be extinguished by the person’s death but shall pass to the person’s surviving
spouse and, in case there is no surviving spouse, to the person’s children or next
of kin; to the person’s personal representative, for the benefit of the person’s
surviving spouse or next of kin; to the person’s natural parents or parent of next of
kin.
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Tenn. Code Ann. § 20-5-106.
The action may be instituted by the personal representative of the deceased or by
the surviving spouse in the surviving spouse’s own name, or, if there is no
surviving spouse, by the children of the deceased or by the next of kin.
Tenn. Code Ann. § 20-5-107.
In the instant case, there are no allegations that Luis Soto was survived by a spouse, as it
is alleged that he and Salinas were divorced and it is not alleged that he was remarried. Thus, the
claim passes to the child or next of kin not the decedent’s parents. Therefore, the Sotos lack
standing or the right to recover for damages resulting from the wrongful death of their son
pursuant to Tennessee law.

B. Next of Kin
As set forth, supra, Section II.A, Tennessee Code Annotated §§ 20-5-106 & 20-5-107
would allow this claim to pass to Luis Soto’s child or next of kin as it is not alleged that he was
survived by a spouse. Plaintiffs allege that, as parents to Luis Soto and grandparents to K.S.,
they are the appropriate next of kin to pursue this claim. Under Tennessee Law, “in the law of
descent and distribution, the term ‘next of kin’ properly denotes the persons nearest of kindred to
the decedent, that is, those who are most nearly related to him by blood.” Sneed v. Henderson,
366 S.W.2d 758, 766 (Tenn. 1963). “The strict legal meaning of the phrase ‘next of kin’ is ‘next
or nearest in blood.’

In ascertaining who the next of kin is, the law follows the line of

consanguinity. It is the same in this state under our general statute of distribution.” Id. Under
those laws of distribution, as Luis Soto did not have a surviving spouse, his child, K.S., is also
his next of kin. Tenn. Code Ann. § 31-2-104(b)(1). Accordingly, the Sotos lack the capacity to
pursue these claims as Luis Soto’s next of kin.
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C. “For the Benefit of K.S., Minor”
Finally, Plaintiffs seek to pursue the claims as “for the benefit of K.S., minor.” Because
K.S. is the decedent’s sole heir, she is the sole party in interest for any causes of action which
survive the decedent. As a minor, K.S. is under a legal disability and may not bring an action in
her own name but must be represented by either a general guardian, a committee, a conservator,
a like fiduciary, a next friend or a guardian ad litem. Fed.R.Civ.P 17(c). However, Plaintiffs
nowhere allege that they have been given any legal authority to sue on behalf of K.S. Whether
Plaintiffs could sue for the benefit of K.S., minor, is a question of who has the right to litigate on
her behalf. Hill, 87 F. Supp. 2d at 1122.
Under Rule 17(b) of the Federal Rules of Civil Procedure, the law of the state in which
the district court sits governs a party’s capacity. Under Tennessee law, “the exclusive right to
assert claims on behalf of the estate belongs to the Administrator.” Ware v. McKeithan (In re
Estate of Hendrickson), No. 03P-1460, 2009 WL 499495, at *1 (Tenn. Ct. App. Feb. 25, 2009);
see also Western Sur. Co. v. Wilson, 484 S.W.2d 45, 48 (Tenn. Ct. App. 1972) (concluding that
the estate’s personal representative succeeds “to the position of the deceased in respect to suing
and being sued”); Estate of Ralson ex. re. Ralson v. Hobbs, No. M2009-02442-COA-R3-CV,
2010 WL 4272692, at *3 (Oct. 28, 2010) (holding that the personal representative retains the
right to bring suits on behalf of the decedent).
The case closest to the one at bar is Sipes v. Madison County, 12-1130-JDB-egb, 2014
WL 2035685 (W.D. Tenn. May 16, 2014). In Sipes, the decedent’s mother and sister brought an
action against Madison County alleging deprivations of the decedent’s constitutional rights under
color of law in violation of 42 U.S.C. § 1983. In the course of discovery, it was discovered by

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the defendants that the decedent had a surviving child. Because the decedent had a surviving
child, the mother and sister were held to have no individual standing to maintain suit. However,
the mother was also the personal representative of the estate and the Court was asked to dismiss
the case because the case was not brought on behalf of the minor child. The Court declined to
dismiss the case, allowing the mother in her capacity as personal representative time to amend
the complaint to reflect the child “as the proper beneficiary and to obtain consent from the
child’s parent or guardian.”
The instant case is distinguished from Sipes in that the Sotos do not allege that they have
been granted Letters Testamentary or Letters of Administration by the Shelby County Probate
Court and therefore are not personal representatives of the estate. This distinction is important
because the role of personal representative is as a fiduciary. The personal representative pursues
“recovery as a trustee for the real beneficiaries . . . , and must account to them, whoever they
may be, for the proceeds of the judgment.” Memphis St. Ry. Co. v. Cooper, 313 S.W.2d 444, 448
(Tenn. 1958). Absent the legal status as personal representatives, the Sotos have no capacity in
which to bring this suit on behalf of K.S.

III. Conclusion
For the reasons set forth herein, Defendants’ Motion to Dismiss is hereby GRANTED.

IT IS SO ORDERED THIS 11th day of October 2017

s/ Charmiane G. Claxton
CHARMIANE G. CLAXTON
UNITED STATES MAGISTRATE JUDGE

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