McGee v. Arkel Int'l, LLC
| Decision Date | 05 December 2012 |
| Docket Number | CIVIL ACTION NO: 08-4704 |
| Parties | LARRAINE MCGEE v. ARKEL INTERNATIONAL, LLC ET AL |
| Court | U.S. District Court — Eastern District of Louisiana |
Before the Court are Defendant, Arkel International LLC ("Arkel")'s Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim (Rec. Doc. 112), which was set for hearing on Wednesday, December 5, 2012, and Plaintiffs' Response, and Alternative Motion to Substitute Kyle Everett as Real Party in Interest for the Estate of Christopher Everett. (Rec. Doc. 127) Arkel has filed a reply. (Rec. Doc. 131) Having considered the parties' motions and memoranda, the record, and the applicable law, the Court finds that Arkel's Motion to Dismiss (Rec. Doc. 112) should be GRANTED IN PART and DENIED IN PART, and that Plaintiffs' Alternative Motion to Substitute (Rec. Doc. 127) should be DENIED for reasons explained more fully below.
The instant lawsuit arises from a fatal accident that occurred on September 7, 2005 in Taqaddum, Iraq, during which Sergeant Christopher Everett was fatally electrocuted while using an electric pressure washer to clean a Humvee. (Pl.'s First Am. Compl., ¶ 3.2, Rec. Doc. 105) Plaintiffs assert that Christopher Everett's death was caused by Arkel's failure to appropriately correct an improperly grounded generator that was installed, operated, and maintained by Arkel, and used to provide electricity to the power washer that Christopher Everett was using to clean the Humvee when he was electrocuted. (Pl.'s First Am. Compl., ¶ 3.2, Rec. Doc. 105) Plaintiffs further allege that, in addition to failing to correct the problem with the generator, Arkel falsely assured the troops that the problem had been remedied. (Pl.'s First Am. Compl., ¶ 3.2, Rec. Doc. 105)
Plaintiffs, Larraine McGee ("Ms. McGee") and Patrick Everett ("Mr. Everett"), the surviving parents of Christopher Everett, originally filed suit against three defendants, Kellog, Brown, and Root, Inc., KBR Technical Services, Inc., and Arkel, in Texas state court. Plaintiffs later filed suit against the same three defendants in Louisiana state court. (Pl.'s Pet., Rec. Doc. 1-2) The Louisiana case was removed to this Court on October 21, 2008 (Notice of Removal, Rec. Doc. 1), stayed on December 19, 2008 during the pendency of the Texas case (Order Administratively Closing Case, Rec. Doc. 29), and reopened on September 11, 2009,after the Texas court granted Plaintiffs' motion to dismiss the Texas case without prejudice. (Order Granting Mot. to Lift Stay, Rec. Doc. 41). On July 27, 2009, while the case was administratively stayed, this Court dismissed Plaintiffs' claims against KBR Technical Services, Inc. and Kellog, Brown, and Root, Inc., pursuant to the parties' joint motion, leaving Arkel as the sole remaining defendant. (Rec. Docs. 36, 37)
On January 5, 2010, approximately four months after Plaintiffs' case was re-opened, Arkel filed a Motion for Summary Judgment, arguing that Plaintiffs' survival and wrongful death claims had prescribed under Louisiana law. (Def.'s Mot. for Summ. J., Rec. Doc. 79) Following oral argument on February 3, 2010, this Court granted Arkel's motion and entered judgment in Arkel's favor. (Rec. Docs. 78, 79) Plaintiffs appealed this Court's ruling, arguing that Iraqi law governed the merits of the Plaintiffs' tort claims. On February 16, 2012, the United States Court of Appeals for the Fifth Circuit reversed this Court's grant of summary judgment and ruled that Iraqi law, rather than Louisiana law, should govern the merits of Plaintiffs' tort claims against Arkel. McGee v. Arkel Int'l, LLC, 671 F.3d 539, 543 (5th Cir. 2012).1 Thereafter, Arkel filed the instant12(b)(6) Motion to Dismiss, to which Plaintiffs have responded.
Arkel contends that Plaintiffs bear the burden of proving that they have viable claims under Iraqi law. Arkel argues that Plaintiffs' claims for the personal injuries that Christopher Everett suffered, including the claim that Ms. McGee asserts on behalf of Christopher Everett's estate, should be dismissed with prejudice, because Iraqi law does not recognize a cause of action for the personal injuries, pain, and mental anguish that a decedent suffered before his death. Relying on the Affidavit of Sermid Al-Sarraf ("Mr. Al-Sarraf"), an expert in Iraqi law, Arkel argues that the Iraqi judiciary does not award damages to the heirs of a person who dies from an injury for the pain and injury "sustained by the decedent's body," and does not, upon the injured person's death, examine the damage sustained by the decedent, or transfer the decedent's right to compensation, if any, to his heirs. (Mem. in Supp. of Mot. to Dismiss, p. 5, Rec. Doc. 112-1; Aff. of Sermid Al-Sarraf, ¶¶ 8(A)-(B), Rec. Doc 112-2) Arkel further argues, based on Mr. Al-Sarraf's affidavit, that if the injured person dies, his heirs' right to claim compensation for material damages sustained by the decedent is extinguished, that the alleged heirs may not file their action in the name of the original injured party, and that the decedent's estate does not have a claim for damages for a wrongful deathunder the tort provisions of the Iraqi Civil Code () Thus, to the extent that Plaintiffs are bringing claims on behalf of Christopher Everett or the Estate of Christopher Everett for the injuries that Christopher Everett sustained prior to his death, Arkel argues that the Court should grant its 12(b)(6) motion, because Plaintiffs are not entitled to bring such a claim under Iraqi law.
In response, Plaintiffs argue that Arkel's motion should be denied. Specifically, Plaintiffs contend that under Article 205(2) and Article 38 of the Iraqi Civil Code, claims made by the parents or siblings of a decedent are proper. In support of their argument, Plaintiffs have submitted an affidavit from Ambassador Feisal Amin Istrabadi ("Ambassador Istrabadi") in which Ambassador Istrabadi concludes that Plaintiffs have satisfied the requirements of Iraqi Civil Code Article 205(2) by seeking compensation for their own injuries arising as a result of their son's death. Furthermore, Plaintiffs contend that Arkel's expert, Mr. Al-Sarraf, has also admitted that Plaintiffs' claims are properly before the Court under Article 205 of the Iraqi Civil Code. Alternatively, Plaintiffs move pursuant to Rule 17(a)(3) of the Federal Rules of Civil Procedure to substitute Christopher Everett's brother, Kyle Everett, in place of the Estate of Christopher Everett to the extent that the Courtconcludes that Plaintiffs have not pleaded proper claims on behalf of the Estate of Christopher Everett. Plaintiffs contend that because Arkel has alleged that the Estate of Christopher Everett is not the real party in interest, Rule 17 mandates that the Court allow the real party in interest to take its place. Plaintiffs contend that Kyle Everett is an heir to Christopher Everett's estate and should be substituted, because: (1) Christopher Everett's parents are already parties to the action, and (2) Kyle Everett has standing under Iraqi law, as Christopher Everett's sibling, to assert a claim. In support of this argument, Plaintiffs cite Anderson v. Bristol, Inc., 847 F. Supp. 2d 1128, 1134-35 (S.D. Iowa 2012) and Webster v. Gower, No. 07-888, 2010 WL 520522, at *5 (D. Utah 2010) and argue that the substitution would not prejudice the defendants and, furthermore, that it is understandable if Plaintiffs did not name the correct party, because the parties are now proceeding under Iraqi law.
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A court must accept all well-pleaded facts as true and must drawall reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The court is not, however, bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.
As a preliminary matter, Arkel's references to Plaintiff's Original Petition for Damages,2 in its Memorandum in Support of its 12(b)(6) Motion to Dismiss are misguided in light of the subsequent filing of Plaintiffs' First Amended Complaint (Rec. Doc. 105). "An amended complaint supersedes the original complaint and renders it of no legal effect, unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading." King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (citing Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir. 1985)). Although Plaintiffs' Original Petition for Damages (Rec. Doc. 1-2) was attached to the defendants' Notice of Removal, Plaintiffs have since filed a First Amended Complaint, which does not refer to, adopt, or incorporate by reference the Original Petition for Damages (Rec. Doc. 105). Thus, Plaintiffs' Original Petition for Damages has no legal effect and is irrelevant for purposes of Arkel's Motion to Dismiss.
Nevertheless, Arkel's error is inconsequential for purposes of the instant Motion to Dismiss. Arkel asserts that Plaintiffs characterize the lawsuit in part as "a survival action for personal injuries to Chris Everett," citing Plaintiffs' Original Petition for Damages. (Arkel's Mem. in Supp. of Mot. to Dismiss, p. 3, Rec. Doc. 112-1) Although Plaintiffs eliminated all overt references to a "survival action" in their First Amended Complaint (See Pl.'s First Am. Compl., Rec. Doc....
To continue reading
Request your trial