United States District Court, W.D. Oklahoma
L. PALK, UNITED STATES DISTRICT JUDGE.
the Court is Defendant's Motion to Dismiss [Doc. No.
It is at issue. See Resp., Doc. No. 7; Reply, Doc.
No. 8. Defendant asserts three bases for dismissal-lack of
personal jurisdiction, lack of capacity of Defendant to be
sued, and lack of proper service. All three bases stem from
the fact that Defendant died prior to Plaintiff filing this
lawsuit in state court (after which Plaintiff filed an
amended pleading in state court that Defendant removed to
this Court). In addition, Plaintiff, in her response brief,
seeks leave to amend the currently operative
pleading-Plaintiff's First Amended Petition [Doc. No.
1]-so that her claim will be against the special
administrator of Defendant's estate, not against
alleges that she was injured in a vehicle collision which was
the fault of Defendant in October 2015. See First
Am. Pet. ¶¶ 9-12, Doc. No. 1-6. Plaintiff
originally filed a lawsuit against Defendant in state court
in October 2017, then voluntarily dismissed that suit in July
2018. The same month, Plaintiff filed a new
lawsuit pursuant to Okla. Stat. tit. 12, § 100-again in
state court. After an amended pleading was filed in the
second lawsuit in January 2019, it was removed by Defendant
to this Court. During the pendency of the first lawsuit-in
November 2017-Defendant died. Notwithstanding that Defendant
died before the second lawsuit was filed, all three pleadings
filed by Plaintiff (the petition in the first lawsuit, the
Petition in the second lawsuit [Doc. No. 1-4], and the First
Amended Petition now at issue in this second lawsuit [Doc.
No. 1-6]) name “Thomas Wynn Ragsdale” as
Plaintiff's request for leave to amend her
Court first addresses Plaintiff's request for leave to
amend her current pleading to replace Defendant with the
special administrator of Defendant's estate. Plaintiff
has not properly sought such leave. Her request is made in
response to a motion, which is disallowed by Local Civil Rule
7.1(c). Nor has Plaintiff submitted her proposed amended
pleading as required by Local Civil Rule 15.1. Despite having
more than four months to make an appropriate Rule 15(a)(2)
motion-and being on notice of her need to do so (see
Reply 1, Doc. No. 8)-Plaintiff has not filed an appropriate
motion. Because Plaintiff's amendment request is made in
violation of multiple local civil rules, it is DENIED.
Court therefore examines the suit as it currently stands,
with Mr. Ragsdale (deceased) as Defendant. Plaintiff
indicates that the Court may view the First Amended Petition
as having been intended to name the special administrator of
Defendant's estate as the defendant, not Defendant.
See Resp. 2, Doc. No. 7. The Court disagrees. Ample
indications exist in the First Amended Petition showing
Plaintiff intended to-and did- name Mr. Ragsdale as the
defendant. See First Am. Pet. (caption) (including
“Thomas Wynn Ragslade” as the named defendant);
id. (introductory paragraph) (“Plaintiff,
Sandra Cadena, by and through her counsel of record, and for
her causes of action against Defendant, Thomas Ragsdale . . .
.”); id. ¶ 3 (“Defendant, Thomas
Ragsdale . . . .”); id. ¶ 10 (“Said
collision was the sole and proximate result of the common law
negligence, and negligence per se, of the Defendant
Thomas Ragsdale . . . .”). The First Amended Petition
references the special administrator of Defendant's
estate in relation to service of process, but it does not
reference him at all in in the capacity of a party to this
action. Nor has Plaintiff requested substitution of the
special administrator of Defendant's estate for Defendant
under Rule 25(a)(1)-to the extent such substitution would
even be allowable in these circumstances (an issue the Court
does not reach because substitution has not been sought by
Plaintiff). See Mizukami v. Buras, 419 F.2d 1319,
1320 (5th Cir. 1969) (per curiam) (“[Rule 25(a)(1)]
contemplates substitution for someone who had been made a
party before his death. It is not available to [a plaintiff
when the defendant] predeceased the filing of the
addition, Plaintiff cites an inapplicable state procedural
rule in support of her position that additional time must be
given to Plaintiff for her to correct her error (beyond that
which she has already received-during which she has not filed
a proper motion for leave to amend). See Fed. R.
Civ. P. 81(c)(1); USA-1 Constr., Inc. v. Embree Constr.
Grp., Inc., No. CIV-14-1206-D, 2015 WL 12781023, at *2
(W.D. Okla. Jan. 26, 2015). Assuming that Plaintiff intended
to cite the federal analogue to Okla. Stat. tit. 12, §
2017(A)-i.e., Rule 17(a)(3)-it is inapplicable to this
situation. See Gonsalves-Carvalhal v. Aurora Bank,
FSB, No. 1-14-CV-151-SJC, 2016 WL 5376295, at *1
(N.D.Ga. Aug. 10, 2016) (“[I]t is improper for a
Plaintiff to complain that she has sued the wrong party under
a ‘real party in interest' argument.”);
Smith v. Janey, 664 F.Supp.2d 1, 8 n.3 (D.D.C. 2009)
(“[Rule 17(a)(3)] applies only to prosecuting in the
name of the real party in interest, and has nothing to do
with failing to identify the appropriate
Defendant's assertion that the Court lacks personal
Court now turns to Defendant's asserted bases for
dismissal-only the first of which the Court must address.
Defendant argues that the Court lacks personal jurisdiction
over him because he died prior to Plaintiff's initiation
of this lawsuit, and that dismissal is therefore appropriate
under Rule 12(b)(2). The Court agrees.
diversity case like this, a federal district court “may
exercise personal jurisdiction over a defendant who is
subject to the jurisdiction of a state court in the state
where the federal court is located.” Newsome v.
Gallacher, 722 F.3d 1257, 1264 (10th Cir. 2013)
(quotation marks omitted) (citing Fed.R.Civ.P. 4(k)(1)(A)).
The Court must therefore apply state law, by which
“[t]he Oklahoma legislature has authorized Oklahoma
courts to ‘exercise jurisdiction on any basis
consistent with the [Oklahoma] Constitution . . . and the
Constitution of the United States.'” Id.
(quoting Okla. Stat. tit. 12, § 2004(F)).
existence of personal jurisdiction is evaluated at the time
the complaint was filed”-here, when Plaintiff filed her
Petition [Doc. No. 1-4] in state court on July 11, 2018, more
than six months after Defendant died. Round Rock Research LLC
v. ASUSTeK Comput. Inc., 967 F.Supp.2d 969, 974 (D. Del.
2013). At that time, and at all times afterward, Defendant
was deceased. And “[c]ourts do not have personal
jurisdiction over deceased persons.” Berneau v.
Martino, 2009 UT 87, ¶ 18, 223 P.3d 1128, 1133
(citing Ramirez v. Lembcke, 80 P.3d 510, 512 (Or.
Ct. App. 2003)); see Currier v. Sutherland, 218 P.3d
709, 714 (Colo. 2009) (en banc) (“A court cannot
exercise personal jurisdiction over a deceased
person.”); Ramirez, 80 P.3d at 512
(“Because the only named defendant is a deceased
person, the trial court did not have personal jurisdiction
over him.”). The Court agrees with these authorities
and finds that it lacks personal jurisdiction as a matter of
law over Defendant.
result reached herein, while seemingly harsh as to Plaintiff,
is not inequitable when all circumstances are considered.
First, the instant order might be different if Plaintiff had
sought leave to amend her pleading via motion-as Defendant
pointed out she should do more than four months ago-which she
has not done. Second, Plaintiff could have served Defendant
in the first lawsuit during the approximately two months
after that lawsuit was filed when he was alive; Plaintiff did
not do so. Plaintiff also could have discovered
Defendant's death through an Internet query or other
research method during the pendency of the first lawsuit and
therefore sought appointment of a special administrator
before she filed the second lawsuit. Or she could have done
so earlier during the pendency of the second lawsuit, which
existed in state court for six months before its removal to
this Court. Finally, Plaintiff could have substituted
Defendant with the special administrator of Defendant's
estate in the First Amended Petition in this lawsuit as
Plaintiff claims she intended to do-but which, for whatever
reason, she did not do.
THEREFORE ORDERED that Defendant's Motion to Dismiss
[Doc. No. 6] is GRANTED as set forth herein. Plaintiffs First