Opinion
Case No. 99-4162-RDR
November 4, 2002.
MEMORANDUM AND ORDER
This case is now before the court upon defendants' motion to dismiss or for partial summary judgment. (Doc. No. 335) This case involves wrongful death and survivorship claims arising from the death of Alan Unzueta, who at the time of his death had been placed for treatment at the Larned State Hospital.
The following facts have been submitted by both sides in this case and are considered true solely for the purposes of this order.
Alan Unzueta was born on August 14, 1982. He moved to Garden City, Kansas in Finney County at the age of seven. He died on October 28, 1998 while he was in treatment at the Larned State Hospital. He was not a citizen of the United States at the time of his death. He was 16 years old when he died and still considered his mother's residence in Garden City to be his residence. Alan Unzueta's mother is Felicitas Unzueta. His father lives in Mexico and has never been involved in raising Alan. He has been informed of Alan's death, however.
On October 22, 1999, a petition for the appointment of a special administrator was filed by Alan's sister, Luz Unzueta, in Finney County, Kansas Probate Court. In an order dated October 20, 1999, but later amended by a nunc pro tunc order to be dated October 22, 1999, the probate court appointed Luz Unzueta as special administrator to "[r]epresent the decedent's interests in potential legal action against Larned State Hospital where decedent formerly resided for damages decedent suffered as a result of his death." No hearing was conducted in connection with this order.
Luz Unzueta is a plaintiff in this case as special administrator of the Estate of Alan Unzueta.
Felicitas Unzueta, Alan's mother, is a named plaintiff as well. Alan Jelinik is another plaintiff. Alan Jelinik is believed to be Alan Unzueta's son. Alan Jelinik was born April 9, 1999, more than five months after Alan Unzueta's death. There has been no paternity proceeding or testing to confirm whether Alan Unzueta was Alan Jelinik's father.
This case involves claims under 42 U.S.C. § 1983 as well as state tort claims arising from Alan Unzueta's death after an altercation with staff members at the Larned State Hospital. The defendants are staff members, supervisors and state officials in the hierarchy of the Larned State Hospital and the Kansas State Department of Health and Rehabilitation Services. Larned State Hospital is not a defendant in this case.
Both sides acknowledge that under Kansas law there are two separate types of actions that may arise out of the death of a person. One is a survival action; the other is a wrongful death action. A survival action is brought by the estate administrator to recover damages suffered by the decedent prior to death. A wrongful death action is brought by the decedent's heirs for damages suffered by them as a result of the wrongful death. See Tank v. Chronister, 160 F.3d 597, 599 (10th Cir. 1998).
Defendants' motion raises four issues. The first three issues question the authority of the special administrator to bring a survival action.
The first issue is whether the letters of special administration granted to Luz Unzueta by the state probate court are void because the Finney County court acted improperly or lacked jurisdiction. Defendants contend that the letters of special administration were signed two days prior to the filing of the petition and oath of the special administrator. Defendants further contend that the petition was not properly verified according to Kansas law. Defendants also assert that venue was improper in the Finney County probate court.
The second issue raised by defendants is whether the letters of special administration should be considered void because the probate court held no hearing and made no "good cause" finding.
Regarding these first two issues and the arguments made, the court agrees with plaintiff that this constitutes the type of collateral attack upon a state court order which should not be decided in this forum. Atchison, Topeka Santa Fe Railway v. Preston, 257 F.2d 933 (10th Cir. 1958); see also, Escareno v. Carl Nolte Sohne Gmbh Company, 77 F.3d 407 (11th Cir. 1996).
The third issue raised by defendants asserts that the special administrator has not been authorized to bring this action against the individuals listed in the case caption because the order appointing the special administrator only authorizes a legal action against Larned State Hospital. Plaintiff responds that the "clear import" of the probate court's order was to enable the special administrator to bring a lawsuit to recover damages on behalf of the estate for injuries suffered by Alan Unzueta while he was a patient at Larned State Hospital, and that bringing a lawsuit under 42 U.S.C. § 1983 against individual staff members and officials, rather than Larned State Hospital, was necessary to avoid the restrictions of the Eleventh Amendment.
The court believes we must read the order of special administration according to its plain language, instead of attempting to interpret the language in light of the alleged intent of the probate court and the parties. Therefore, the court does not believe the special administrator, Luz Unzueta, qualifies as a real party in interest in this case because the order granting her authority to bring suit does not authorize a lawsuit against the staff members and officials named as defendants in this case.
Under the provisions of Rule 17 of the Federal Rules of Civil Procedure, the court shall not dismiss this action before allowing a reasonable time, which the court shall set as 60 days, for the substitution of a real party in interest.
The fourth issue raised in the instant motion asserts that there must be a probate court finding of whether Felicitas Unzueta or Alan Jelinek is Alan Unzueta's heir-at-law before the real party in interest is determined for the wrongful death claim. Plaintiffs suggest that this determination can be delayed until after a judgment or settlement is reached in this matter. However, we agree with defendants that it would be preferable in this case to have a determination as to who is the real party in interest for the purpose of the wrongful death claim prior to the trial or settlement of the claim.
The court is aware that much time has passed since this motion was filed. If circumstances have changed, the parties should inform the court. If circumstances have not changed, then plaintiffs are directed to proceed to establish in probate court who the real party in interest is for the wrongful death claim within the next 60 days and then file appropriate pleadings with the court.
In conclusion, defendants' motion to dismiss or for partial summary judgment is granted in part and denied in part in accordance with the above-stated memorandum. The court, however, shall not dismiss any claims for the next 60 days pending ratification or joinder or substitution of the proper real party in interest.
IT IS SO ORDERED.