Spencer v. Nelson

• Decision Date: 01 June 2021
• Docket Number: Case No. CIV-21-530-F
• Citation: Spencer v. Nelson, Case No. CIV-21-530-F (W.D. Okla. Jun 01, 2021)
• Parties: JIMMY WAYNE SPENCER, as Special Administrator and Representative of the Estate of MARK GLEN SPENCER, and as Representative of the Beneficiaries or Heirs of the Estate of MARK GLEN SPENCER, Plaintiffs, v. LANA NELSON, D.O., Defendant.
• Court: U.S. District Court — Western District of Oklahoma

JIMMY WAYNE SPENCER,as Special Administrator and Representative of the Estate of MARK GLEN SPENCER,and as Representative of the Beneficiaries or Heirs of the Estateof MARK GLEN SPENCER, Plaintiffs, v. LANA NELSON, D.O., Defendant.

Case No. CIV-21-530-F

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

June 1, 2021

ORDER

The court has an independent duty to inquire into its own subject-matter jurisdiction.Arbaugh v. Y&H Corp., 546 U.S. 500, 514(2006).

The complaint alleges that the court has jurisdiction over this action based upon 28 U.S.C. § 1332(diversity jurisdiction).However, according to the complaint, Jimmy Wayne Spencer is bringing this action as special administrator and representative of the estate of Mark Glen Spencer and as representative of the beneficiaries or heirs of the estate of Mark Glen Spencer.As pled, it appears that Jimmy Wayne Spencer is bringing a survivor action on behalf of the estate of the decedent, Mark Glen Spencer, under 12 O.S. 2011 § 1051, as well as a wrongful death action on behalf of the heirs of his estate, under 12 O.S. 2011 § 1053.See, Gaasch Estate of Gaasch v. St. Paul Fire and Marine Ins. Co., 412 P.3d 1151, 1154-55 n.11(Okla.2018)(explaining survivor and wrongful death actions);see also, Haws v. Luethje, 503 P.2d 871, 874(Okla.1972)("An action under the survival statute is for personal injury to the decedent and is in behalf of his estate.An action under the wrongful death statute is for the pecuniary loss suffered by the surviving spouse and children, if any, or next of kin, and is for their exclusive benefit.").With regard to the survivor action, the court notes the damages requested in the complaint include damages for pain and suffering of the decedent.

For diversity purposes, "the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent."28 U.S.C. § 1332(c)(2).¹The complaint alleges that Jimmy Wayne Spencer is a citizen of the State of Texas.It does not, however, allege the state of citizenship for decedent, Mark Glen Spencer.The complaint must allege the state of citizenship for Jimmy Wayne Spencer and for Mark Glen Spencer, if Jimmy Wayne Spencer is in fact seeking recovery of damages both on behalf of the estate of the decedent and the heirs of the decedent.

Accordingly, the courtORDERS as follows:

If Jimmy Wayne Spencer is seeking recovery of damages both on behalf of the estate of decedent, Mark Glen Spencer, and on behalf of the heirs of decedent, Mark Glen Spencer, Jimmy Wayne Spencer shall file, within 14 days of the date of this order, a first amended complaint which includes the state of citizenship for the decedent.²

If Jimmy Wayne Spencer is not seeking recovery of...