United States District Court, W.D. Oklahoma
TERESA LUMAN and MICHAEL D. MARTIN as children and next of kin of Mary Ann Martin, deceased, Plaintiffs,
TODD M. OZDYCH, D.O., Defendant.
MILES-LaGRANGE UNITED STATES DISTRICT JUBGE.
the Court is Defendant Todd M. Ozdych's Motion to Dismiss
with Brief in Support, filed March 10, 2017. On March 28,
2017, plaintiffs responded, and on April 4, 2017, defendant
replied. Based on the parties' submissions, the Court
makes its determination.
Teresa Luman and Michael D. Martin, filed this action as the
children and next of kin to Mary Ann Martin
(“Martin”). Plaintiffs allege that Martin
underwent hernia surgery performed by defendant on January 8,
2014. After complications from the surgery, Martin passed
away on January 20, 2014. Plaintiffs allege that defendant
was negligent in the treatment and care of Martin and that
Martin's untimely death did not occur in the usual course
of everyday conduct. Defendant now moves this Court to
dismiss this matter, pursuant to Federal Rules of Civil
Procedure 12(b)(1), (6)-(7) and 19.
contends that plaintiffs have no standing to assert claims as
next of kin and that plaintiffs have failed to timely add
necessary and proper parties. Further, defendant contends
that if plaintiffs are allowed to amend their Complaint, he
will be prejudiced. Specifically, defendant contends that,
pursuant to the Oklahoma Wrongful Death statute, plaintiffs
have not joined all of Martin's next of kin in this
matter, as Martin has two additional children Terri Lynn
Martin (“T. Martin”) and Steven Craig Martin
(“S. Martin”). Further, defendant contends that
plaintiffs are now prohibited from joining T. Martin and S.
Martin to this action since: (1) the Court's September 6,
2016 Scheduling Order required additional parties to be
joined in this matter within 30 days of the Scheduling Order;
(2) the statute of limitations bars T. Martin and S. Martin
from bringing a wrongful death claim against defendant; and
(3) defendant will be prejudiced if S. Martin and T. Martin
are allowed to be joined to this action. Plaintiffs contend
this matter should not be dismissed and request permission
for leave to add T. Martin and S. Martin to this matter, as
they have articulated a viable claim against defendant.
Oklahoma, “[w]hen the death of one is caused by the
wrongful act or omission of another, the personal
representative of the former may maintain an action therefor
against the latter . . . if the former might have maintained
an action, had he or she lived, against the latter, …
for an injury for the same act or omission.” Okla.
Stat. tit. 12, § 1053(A). Further, in cases in which the
deceased has no personal representative, the action
“may be brought by the widow, or where there is no
widow, by the next of kin of such deceased.”
See Okla. Stat. tit. 12, § 1054. “The
term ‘next of kin, ' used in § 1053, has been
defined as including all who would be entitled to share in
the distribution of the personal property of the deceased,
[pursuant to Okla. Stat. tit. 84, §
213(B)(1)&(2)]”. Ouellette v. State Farm Mut.
Auto Ins. Co., 918 P.2d 1363, 1367 (Okla. 1994)
(internal citations omitted).
Oklahoma Court of Civil Appeals addressed the issue of who
may sue in a wrongful death action in the context of
substituting parties in Weeks v. Cessna Aircraft
Co., 895 P.2d 731 (Okla.Civ.App. 1994). The court
In the spirit of the Oklahoma Pleading Code and the Federal
Rules of Civil Procedure, we believe that the interpretation
of the statute with regard to substitution of parties should
emphasize substance over form. Therefore, we hold that timely
filing by any of the enumerated parties ‘who may
sue' will properly commence a wrongful death action.
Consequently, we find that it is appropriate to treat
substitution of plaintiffs in wrongful death actions just as
they would be treated in other civil actions, so long as the
filing party is one of the enumerated parties entitled to sue
under section 1053. . . . We find that substitution should be
allowed where a mistake caused the improper party to be
listed as Plaintiff, where the action was filed within the
statutory period, and where the proper party consents to
substitution. In accordance with section 2017, the
substitution should have the effect of relating back to the
filing of the original action.
Id. at 735.
carefully reviewed the parties' submissions, as well as
case law related to this matter, the Court finds that
plaintiffs should be granted leave to add T. Martin and S.
Martin to this matter, for the same reasons that the court in
Weeks allowed the substitution of the real party in
interest in that matter. Specifically, the Court finds that
the joinder of T. Martin and S. Martin to this action will
not prejudice defendant because the claims asserted against
defendant will not change with the addition of T. Martin and
S. Martin. Further, the Court finds that T. Martin and S.
Martin's claims against defendant are not barred, because
the addition of the two new parties will relate back to the
original claim brought by plaintiffs, pursuant to Federal
Rule of Civil Procedure 15(c)(1)(B). Therefore, the Court
finds that this action should not be dismissed.
the Court DENIES Defendant Todd M. Ozdych's Motion to
Dismiss with Brief in Support [docket no. 34] and GRANTS
plaintiffs leave to join parties Terri Lynn Martin and Steven
Craig Martin in this action ...