Wortham v. Alderfer, Civil Action No. 1:96cv380-D-D (N.D. Miss. 4/__/2001)
| Decision Date | 01 April 2001 |
| Docket Number | Civil Action No. 1:96cv380-D-D. |
| Parties | ANNIE WORTHAM, PLAINTIFF, v. VALERIE ALDERFER, as defendant ad litem for deceased, Harold M. Wortham, Jr., DEFENDANTS. |
| Court | U.S. District Court — Northern District of Mississippi |
By order dated November 12, 1996, United States District Judge Stephen N. Limbaugh of the Eastern District of Missouri transferred this cause to this district. On February 25, 1997, the defendant Valerie Alderfer filed with this court a Motion to Dismiss, or in the Alternative, to Strike. The primary contention of the defendant in her motion is that she is not a proper defendant in this action, as her capacity to be sued is based upon what she contends to be an inapplicable Missouri state statute. In the alternative, the defendant requests that this court strike from the plaintiff's pleadings any reference pertaining to the existence of liability insurance in this cause. Upon consideration of the motion to dismiss, the court finds that it is not well taken and shall deny it. As to her request for alternative relief, however, the court finds the motion well taken and shall grant it.
On or about June 26, 1993, a motor vehicle accident occurred in Chickasaw County, Mississippi. The wreck involved an automobile driven by Harold M. Wortham, Jr., and in which the plaintiff, Annie Wortham, was a passenger. As a result of the accident, the plaintiff suffered various injuries. Harold Wortham died intestate in the state of Missouri on or about June 28 1994. On or about May 15, 1996, Plaintiff's counsel petitioned the Missouri state courts to open an administration of Mr. Wortham's estate for the purpose of pursuing an action for injuries suffered as a result of the wreck. The Missouri courts denied the request, as barred by Missouri's statute of limitations on the administration of estates.
As a consequence, the plaintiff filed this action against the defendant in the United States District Court for the Eastern District of Missouri and petitioned the court to appoint the defendant as a "defendant ad litem" pursuant to Missouri statutory law. Mo. Ann. St. § 537.021. After the court granted the motion and appointed Ms. Alderfer, the plaintiff, in an unusual procedural move, then moved to transfer the action to this court pursuant to 28 U.S.C. § 1404(a). The district court granted the motion and transferred this cause to the Northern District of Mississippi. After transfer, the defendant filed the motion presently before the court.
A Rule 12(b)(6) motion is disfavored, and it is rarely granted. Clark v. Amoco Production Company, 794 F.2d 967, 970 (5th Cir. 1986); Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981). Dismissal is never warranted because the court believes the plaintiff is unlikely to prevail on the merits. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Even if it appears an almost certainty that the facts alleged cannot be proved to support the claim, the complaint cannot be dismissed so long as the complaint states a claim. Clark v. Amoco Production Company, 794 F.2d 967, 970 (5th Cir. 1986); Boudeloche v. Grow Chemical Coatings Corp., 728 F.2d 759, 762 (5th Cir. 1984). "To qualify for dismissal under Rule 12(b)(6), a complaint must on its face show a bar to relief." Clark, 794 F.2d at 970; see also Mahone v. Addicks Utility District, 836 F.2d 921, 926 (5th Cir. 1988); United States v. Uvalde Consolidated Independent School District, 625 F.2d 547, 549 (5th Cir. 1980), cert. denied, 451 U.S. 1002. Dismissal is appropriate only when the court accepts as true all well-pled allegations of fact and, "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Thomas v. Smith, 897 F.2d 154, 156 (5th Cir. 1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 100-02, 2 L.Ed.2d 80 (1957)); see Mahone v. Addicks Utility District, 836 F.2d 921, 926 (5th Cir. 1988); McLean v. International Harvester, 817 F.2d 1214, 1217 n.3 (5th Cir. 1987); Jones v. United States, 729 F.2d 326, 330 (5th Cir. 1984). While dismissal under Rule 12(b)(6) ordinarily is determined by whether the facts alleged, if true, give rise to a cause of action, a claim may also be dismissed if a successful affirmative defense appears clearly on the face of the pleadings. Clark v. Amoco Production Company, 794 F.2d 967, 970 (5th Cir. 1986); Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 459 U.S. 1105.
In her complaint, the plaintiff charges that the defendant is properly named in this action as a "defendant ad litem." This designation does not derive from federal law, but from Missouri statutory law. R.S. Mo. § 537.021. The relevant statute provides:
537.021. Action for damages — personal representative to maintain or defend — exception — action against liability insurer, procedure
1. The existence of a cause of action for an injury to property, for a personal injury not resulting in death, or for wrongful death, which action survives the death of the wrongdoer or the person injured, or both, shall authorize and require the appointment by a probate division of the circuit court of:
. . .
(2) A personal representative of the estate of a wrongdoer upon the death of such wrongdoer; provided that, if a deceased wrongdoer was insured against liability for damages for wrongdoing and damages may be recovered from the wrongdoer's liability insurer, then the court in which any such cause of action is brought shall appoint at the request of the plaintiff or other interested party a qualified person to be known as a defendant ad litem. The defendant ad litem when so appointed shall serve and act as the named party defendant in such actions in the capacity of legal representative of the deceased wrongdoer and such appointment and any proceedings had or judgment rendered in such cause after such appointment shall be binding on the insurer of such deceased wrongdoer to the same extent as if a personal representative had acted as the legal representative of such deceased wrongdoer in such cause of action.
Mo. Ann. Stat. § 537.021 (West 1996) (emphasis added). The question essential to the determination of the defendant's motion is whether § 537.021 is applicable to permit a "defendant ad litem" to be employed in this case.
Federal Rule of Civil Procedure 17(b) provides in relevant part:
(b) Capacity to Sue or be Sued. The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individual's domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held . . .
Fed. R. Civ. P. 17(b) (emphasis added). As this case involves a defendant's capacity to be sued in a representative capacity, i.e., as a defendant ad litem, the law of the state in which the district court is held governs the capacity of Ms. Alderfer to be a defendant in this action. In cases such as this one, which have been transferred to a different district court pursuant to 28 U.S.C. § 1404(a), the "law of the state in which the district court is held" means the state law of the transferor court. See, e.g., Ferens v. John Deere Co., 494 U.S. 516, 108 L.Ed.2d 443, 110 S.Ct. 1274 (1990); Van Dusen v. Barrack, 376 U.S. 612, 11 L.Ed.2d 945, 84 S.Ct. 805 (1964); That state's law is applied regardless of which party effectuated the § 1404(a) transfer, and includes the application of that state's conflict of law rules. Ferens, 494 U.S. at 518, 110 S.Ct. at 1277, 108 L.Ed.2d at 449-50; Van Dusen, 376 U.S. at 637, 84 S.Ct. at 819, 11 L.Ed.2d at 962. This court's task, then, is to decide whether Missouri conflicts of law rules allow the application of § 537.021 under the facts presently before the court.
For the determination of conflicts issues, Missouri appears to follow the Restatement (Second) of Conflicts in many respects. See, e.g., CIT Group/Equipment Financing, Inc. v. Integrated Financial Services, Inc., 910 S.W.2d 722, 728 (Mo. Ct. App. 1995) () D.L.C., et al. v. Walsh, 908 S.W.2d 791, (Mo. Ct. App. 1995) (same); Bonner v. Automobile Club Inter-Ins. Exchange, 899 S.W.2d 925, 928 (Mo. Ct. App. 1995) (); Ernst v. Ford Motor Co., 813 S.W.2d 910, 921 (Mo. Ct. App. 1991) (). The most applicable provision of the restatement in this situation appears to be § 125, which provides that "[t]he local law of the forum determines who may and who must1 be parties to a proceeding unless the substantial rights and duties of the parties would be affected by the determination of this issue." Restatement (Second) of Conflicts, § 125. The traditional common law conflicts analysis, however, draws a distinction between "substantive" matters and those which are "procedural." 16 Am.Jur.2d Conflict of Laws § 118 (1979); HERBERT F. GOODRICH & EUGENE F. SCOLES, CONFLICT OF LAWS 142 (1964). Under a substantive/procedural dichotomy, forum or "local" law controls all matters which are deemed "procedural" for conflicts purposes. Even though Missouri has applied the Second Restatement in several contexts, the Missouri courts embrace this venerable distinction and employ a substantive/procedural dichotomy. See, e.g., D.L.C., 908 S.W.2d at 794 () (qu...
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