Free Motion to Dismiss Case/Lack of Jurisdiction - District Court of Arizona - Arizona

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William W. Drury, Jr., #005238 J. Gordon Cook, #000586 James W. Barnhouse, #013749 RENAUD COOK DRURY MESAROS, P.A. One North Central, Suite 900 Phoenix, Arizona 85004-4418 (602) 307-9900 [email protected] [email protected] [email protected] Attorneys for Defendants Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D. Paul G. Ulrich, No. 001838 Melinda K. Cekander, No. 012085 131 E. El Caminito Drive Phoenix, Arizona 85020-3503 (602) 248-9465 [email protected] [email protected] Co-Counsel for Defendants Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA RUBECCA MIKKELSEN, surviving spouse of Kelly Mikkelsen, deceased, individually and on behalf of MILES MIKKELSEN, JERRET MIKKELSEN and ALLISON MIKKELSEN, the minor children of Kelly Mikkelsen, deceased, and on behalf of DENNIS MIKKELSEN, natural father of Kelly Mikkelsen, deceased; and on behalf of TAYLOR R. FOX, a minor, by her next friend and natural mother, TRACY FOXTANGA, Plaintiff, v. CORRECTIONAL HEALTH RESOURCES, INC., a foreign corporation; KENNETH L. FAIVER and JANE DOE FAIVER, husband and wife; JOSEPH EDWARD RICH, M.D. and JANE DOE RICH, husband wife; DOES I through V, inclusive, Defendants. No. CIV 02-2252-PHX-JAT MOTION TO DISMISS PLAINTIFFS' THIRD AMENDED COMPLAINT

(Accelerated Oral Argument Requested)

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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1 Defendants Correctional Health Resources, Inc., Kenneth and Rosemary Faiver, and 2 Joseph Edward Rich, M.D. ("CHR Defendants") respectfully move to dismiss Plaintiffs' Third 3 Amended Complaint. This Court lacks jurisdiction over that complaint. 4 to state a claim upon which relief can be granted under either federal or state law. 5 This motion is supported by the attached Memorandum of Points and Authorities and the 6 Court's entire file in this matter, which are incorporated by this reference. 7 MEMORANDUM OF POINTS AND AUTHORITIES 8 INTRODUCTION 9 Plaintiffs' Third Amended Complaint suffers from the same conceptual flaws endemic in 10 their prior complaints and in their proposed final joint pretrial order. Plaintiffs simply fail to state 11 a claim over which this Court has jurisdiction. They also fail to state a claim upon which relief 12 can be granted under either federal or state law. 13 The fundamental flaw with Plaintiffs' theories of this case is their utter failure to 14 ever name the estate as a plaintiff in this matter or to assert a claim upon its behalf. 15 Plaintiffs purportedly assert a federal claim for alleged violation of Kelly Mikkelsen's rights 16 without naming the estate of Kelly Mikkelsen as a plaintiff. 17 intended to name the estate as a plaintiff because they have always sought damages in their own 18 right for that alleged violation even though federal courts unanimously hold only the party whose 19 rights were violated (here Kelly Mikkelsen) is entitled to recover damages for that alleged 20 violation. 21 Plaintiffs also purportedly assert state claims for negligence, medical negligence, and 22 violation of the Adult Protective Services Act without naming the estate of Kelly Mikkelsen 23 as a plaintiff. Although each of these claims could have survived the death of Kelly Mikkelsen 24 under Arizona's survival statute and been asserted by his estate, his estate has never been a 25 26
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Moreover, Plaintiffs fail

It is clear they have never

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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plaintiff in this litigation. Instead Plaintiffs bring these claims in their own name, seeking damages for themselves. The only state claim these Plaintiffs have is one for wrongful death. Yet Plaintiffs have never asserted a claim for wrongful death. This problem has been brought to Plaintiffs'

attention through the process of working on jury instructions and the proposed joint final pretrial order. Despite that fact, they filed the same complaint containing the same fundamental flaws. ARGUMENT

I.

BOTH SUBJECT-MATTER JURISDICTION AND THE DEFENSE OF FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED MAY BE RAISED AT ANY TIME. Plaintiffs have now filed their Third Amended Complaint. CHR Defendants thus have 10

days to respond to that Third Amended Complaint. FED. R. CIV. P. 15(a)). However, In an abundance of caution, given the close trial date, CHR Defendants are providing additional authority demonstrating their right to bring this motion at this time. A motion suggesting a lack of jurisdiction may be made at any time. See FED. R. CIV. P. 12(h)(3); Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 955 n.2 (9th Cir. 2004). A motion raising the defense of failure to state a claim upon which relief can be granted also may be raised at any time. See FED. R. CIV. P. 12(h)(2); See, e.g., Romstadt v. Allstate Ins. Co., 59 F.3d 608, 610-611 (6th Cir. 1995) ("The defense of failure to state a claim upon which relief can be granted is protected from waiver through trial."); Dominguez v. Lanham Machinery Co., Inc., 122 F.Supp.2d 852, 853 (W.D.Mich. 2000) ("Defense of failure to state a claim for which relief can be granted is not waived by failure to raise it in answer, and may even be made at trial on merits."); Moodie v. Federal Reserve Bank of New York, 861 F.Supp. 10, 13 (S.D.N.Y. 1994) (motion to dismiss for failure to state a claim may be raised at any time before trial on merits and even after mistrial had been declared on a state law claim), aff'd 58 F.3d 879 (2nd Cir. 1995); Stock `In S.A. v. Swissco, Inc., 748 F.Supp. 23, 27 (D.C. 1990) (motion to dismiss for 3

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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failure to state a claim on which relief could be granted, filed more than two and one-half years after action was filed, was timely where the defense asserted was raised in the answer); State of Washington v. M/V Kilkara, 470 F.Supp. 437, 439 (W.D.Wash. 1979) ("A party may move at any time to dismiss a counterclaim for failure to state a claim upon which relief can be granted."); Albachten v. Corbett, 156 F.Supp. 863, 864 (S.D.Cal. 1957) ("The defense of failure to state a claim may be raised at any time before trial."); Wright & Miller, 5C Fed. Prac. & Proc. Civ. 3d § 1392. II. THIS COURT LACKS JURISDICTION. The only party with Article III standing to bring a claim for the alleged violation of Kelly Mikkelsen's Eighth Amendment rights is the estate of Kelly Mikkelsen. (See CHR's

Jurisdictional Motion and Reply). The only party with Article III standing to seek damages for the alleged violation of Kelly Mikkelsen's Eighth Amendment rights is the estate of Kelly Mikkelsen. (Id.). The estate of Kelly Mikkelsen is not a plaintiff. Notably absent from the caption of the Third Amended Complaint is identification of the estate as a named plaintiff. The caption identified Rubecca Mikkelsen as the surviving spouse of Kelly Mikkelsen and as the personal representative of his estate. The caption states she is bringing the complaint on behalf of Miles Mikkelsen, Jerret Mikkelsen and Allison Mikkelsen, Dennis Mikkelsen, and Taylor Fox. of the estate of Kelly Mikkelsen. Count Four of Plaintiffs' Third Amended Complaint alleges Defendants "deprived Kelly Mikkelsen of his civil rights and immunities guaranteed by the United States Constitution." It The caption does not state she is bringing a claim on behalf

further alleges Defendants "denied required and necessary medical care and treatment to Kelly Mikkelsen." It then alleges "Plaintiffs are, therefore, entitled to the recovery of actual,

consequential and punitive damages from Defendants, and each of them, as well as attorneys' fees, as a result of Defendants' violation of 42 U.S.C. §1983 and the Eighth Amendment to the United States Constitution." 4

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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Plaintiffs have never alleged the estate of Kelly Mikkelsen is entitled to recover damages for the alleged violation of Kelly Mikkelsen's Eighth Amendment rights. The lack of any such

allegation proves Plaintiffs have never intended to bring a claim for the estate of Kelly Mikkelsen. To the contrary, they have only ever intended to bring claims for themselves.

However, they do not have Article III standing to assert a claim for the alleged violation of Kelly Mikkelsen's Eighth Amendment rights. (See CHR's Jurisdictional Motion and Reply). Plaintiffs now have alleged a federal question (violation of Eighth Amendment rights) and a real party in interest (Rubecca Mikkelsen, as personal representative for the estate of Kelly Mikkelsen). However, Plaintiffs still have not made the requisite jurisdictional allegation ­ assertion of a claim brought by the estate of Kelly Mikkelsen for the estate of Kelly Mikkelsen. Thus, this Court lacks jurisdiction. (Id.). Because the estate of Kelly Mikkelsen is not a plaintiff, this Court lacks subject-matter jurisdiction over this case. (Id.). There is no party with Article III standing before this Court.

(Id.). Thus, it must be remanded to state court. 28 U.S.C. § 1447(c). III. PLAINTIFFS FAIL TO STATE A FEDERAL CLAIM UPON WHICH RELIEF CAN BE GRANTED. For all the reasons stated in Section I above, Plaintiffs also fail to state a federal claim

17 upon which relief can be granted. 18 violation of Kelly Mikkelsen's constitutional rights. The estate of Kelly Mikkelsen is not named 19 as a Plaintiff. No damages are sought for the estate. Simply put, no claim has been asserted by the 20 estate of Kelly Mikkelsen. Although Rubecca Mikkelsen alleges she is the personal 21 representative for the estate of Kelly Mikkelsen, she fails to state any claim on behalf of the 22 estate. Thus, her capacity as personal representative is completely irrelevant. 23 24 IV. 25 26
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Only the estate of Kelly Mikkelsen has a claim for alleged

PLAINTIFFS FAIL TO STATE A STATE CLAIM UPON WHICH RELIEF CAN BE GRANTED.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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The estate of Kelly Mikkelsen is the only party that could state a claim for negligence or medical negligence. A.R.S. § 14-3110 (providing certain causes of action survive the death of

the plaintiff and holding the personal representative of the decedent's estate may assert the claim on behalf of the decedent's estate). The estate of Kelly Mikkelsen has never been identified as

a party. The estate of Kelly Mikkelsen has never asserted a claim. Similarly, only the estate of Kelly Mikkelsen could assert a claim under the Adult Protective Services Act.1 A.R.S. § 46-455(B) provides, in pertinent part: An incapacitated or vulnerable adult whose life or health is being or has been endangered or injured by neglect, abuse or exploitation may file an action in superior court against any person or enterprise that has been employed to provide care, that has assumed a legal duty to provide care or that has been appointed by a court to provide care to such incapacitated or vulnerable adult for having caused or permitted such conduct. (emphasis added).

12 The language of the statute could not be clearer ­ the only person who may bring an action 13 based upon this statute is the incapacitated or vulnerable adult. 14 right to bring the claim is not affected by the death of the incapacitated or vulnerable adult. 15 Despite this clear language, Plaintiffs purport to assert a claim pursuant to A.R.S. § 4616 455(B). They fail to state a claim upon which relief can be granted. 17 The only claim the named Plaintiffs might have had is one for wrongful death. 18 A.R.S. § 12-611, et seq.. That statute, the wrongful death statute, allows Rubecca Mikkelsen (as 19 surviving spouse of Kelly Mikkelsen or as personal representative of the estate of Kelly 20 Mikkelsen) to bring an action on behalf of all entitled to recover for the wrongful death of the 21 decedent. A.R.S. § 12-612(A) provides: 22 23 24 25 26
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A.R.S. § 46-455(B) states the

See, e.g.,

An action for wrongful death shall be brought by and in the name of the surviving husband or wife, child, parent or guardian, or personal representative of the

The claim for violation of the Adult Protective Services Act also fails because this Court previously held the Adult Protective Services Act does not apply to this fact situation. (September 7, 2005 Order).
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RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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deceased person for and on behalf of the surviving husband or wife, children or parents, or if none of these survive, on behalf of the decedent's estate. (emphasis added).

3 Plaintiffs have never asserted a claim for wrongful death. 4 to assert claims for negligence, medical negligence and violation of the Adult Protective Services 5 Act, which claims could only be asserted by the estate of Kelly Mikkelsen. 6 a claim upon which relief can be granted. 7 Plaintiffs' failure to observed the distinctions between a survival action and a wrongful 8 death action is critical. The party entitled to recover damages, as well as the damages available 9 in a survival action are different than the damages available in a wrongful death action. ( Compare 10 A.R.S. § 14-3110 (estate entitled to recover certain compensatory damages, but not entitled to 11 recover for decedent's pre-death pain and suffering) with A.R.S. § 12-611, et seq. (survivors 12 entitled to recover loss of consortium type damages and certain out of pocket expenses paid for 13 by the survivors)). 14 Plaintiffs have not properly pled a claim for wrongful death. 15 for negligence, medical negligence and violation of the Adult Protective Services Act, which 16 claims may be asserted only by the estate of Kelly Mikkelsen. Thus, Plaintiffs have failed to state 17 a claim upon which relief can be granted. Their Third Amended Complaint should be dismissed. 18 CONCLUSION 19 Based upon the foregoing, CHR Defendants respectfully request this Court enter its Order 20 remanding this case to state court because this Court lacks jurisdiction. CHR Defendants further 21 request this Court dismiss Plaintiffs' Third Amended Complaint for failure to state a claim upon 22 which relief can be granted. 23 24 25 26
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To the contrary, they purport

Plaintiffs fail to state

Plaintiffs have pled claims

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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1 2 3 4 5 6 7 8 9 PAUL G. ULRICH, PC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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RESPECTFULLY SUBMITTED this 9th day of November, 2005. RENAUD COOK DRURY MESAROS, PA By: s/ James W. Barnhouse William W. Drury, Jr. James W. Barnhouse Phelps Dodge Tower One North Central, Suite 900 Phoenix, AZ 85004-4418 Attorneys for Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D.

By: s/ Paul G. Ulrich Paul G. Ulrich Melinda K. Cekander 131 East El Caminito Drive Phoenix, Arizona 85020-3503 Attorneys for Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D. E-Filed with the U.S. District Court this 9th day of November, 2005; and COPY of the foregoing delivered this 9th day of November, 2005, to: Hon. James A. Teilborg U.S. District Court 401 West Washington Street Suite 523, SPC 51 Phoenix, Arizona 85003-0001

s/ Bobby Doisher

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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