E-Alert Case Updates

Court Says Daughter Can’t Waive Her Rights in Father’s Wrongful Death Action in Order to Maintain Diversity Jurisdiction

Ward v. Walker
Civil Action No. RDB 09-3256 (D. Md. 2010)
By Carrie A. Scrufari, Summer Associate
Semmes, Bowen & Semmes (www.semmes.com)

The United States District Court for the District of Maryland granted Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction. The Plaintiff was Alma Ward, filing a wrongful death action and a survival action for pain and suffering on behalf of her deceased husband, Bruce Ward. Plaintiff filed suit in Federal Court based on diversity jurisdiction against the treating doctor and medical center after her husband passed away from a series of complications following a hernia surgery. He ultimately died from multiple organ failure as a result of developing sepsis. In response, Defendants moved to dismiss for lack of subject matter jurisdiction and failure to join all necessary parties pursuant to RULE 19 of the FEDERAL RULES OF CIVIL PROCEDURE.

The Plaintiff filed suit in federal court on diversity jurisdiction grounds. Judge Bennett first determined that the deceased was domiciled in Florida since he maintained a residence there, paid taxes there, and obtained a driver’s license there. Thus, Judge Bennett determined the Plaintiff was also a Florida resident as a representative of her husband’s estate. The defendants are residents of Maryland, and allege that the deceased’s daughter, Ms. Tammy Ward Kilgore (“Kilgore”) who is also a Maryland resident, is a necessary party to the suit. Pursuant to RULE 19, if Kilgore is a necessary and indispensable party to the suit, she would destroy the Plaintiff’s claim to federal jurisdiction.

For wrongful death actions, Maryland law requires that “all persons who are or may be entitled by law to damages by reason of the wrongful death shall be named as plaintiffs whether or not they join in the action.” MD. RULE 15-1001(b). Maryland law further permits only one wrongful death action.

The Court analyzed the jurisdiction claim using the Fourth Circuit’s approach in Owens-Illinois, Inc., v. Meade, 186 F.3d 435, 440 (4th Cir. 1999). Under Owens-Illinois, the Court first must determine if Kilgore is necessary to the action. The Court reasoned that Kilgore was a necessary party in interest because excluding her from the action would not permit the court to provide complete relief to all of the wrongful death beneficiaries. Thus, under Rule 19(a), the Court held Kilgore was a necessary party.

The second step under Owens-Illinois requires a court to determine if an action should proceed in the absence of the necessary party. Since Maryland law requires a court to “resolve all claims of all potential beneficiaries,” the Court found the action could not proceed without Kilgore. Johnson v. Price, 191 F.Supp.2d 626, 630 (D. Md. 2001). Therefore, the Court held that Plaintiff’s action could not proceed since joining Kilgore would destroy diversity jurisdiction. Because Kilgore was a necessary party and the Court could not “in equity and good conscience” let the matter proceed in her absence, it dismissed Plaintiff’s Complaint. FED. R. CIV. P. 19 (b).

The Court further held that Kilgore could not waive her right to wrongful death benefits, finding that subject matter jurisdiction is a “non-waivable” issue. Johnson, 191 F.Supp.2d at 630. Moreover, the Court held the Plaintiff could not strike the wrongful death claim from her complaint in order to preserve federal jurisdiction since the Supreme Court does not permit a “postfiling salvage operation” on the Complaint. Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 571 (2004). Yet, the Plaintiff could re-file her Complaint in Maryland state court. See MD. RULE 2-101(b).

Thus, the District Court dismissed Plaintiff’s claims without prejudice, and directed her to re-file her claims in Maryland Circuit Court within 30 days.