Weeks v. Titlemax of Arizona Incorporated ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 John Weeks, No. CV-19-05788-PHX-DJH 10 Plaintiff, ORDER 11 v. 12 Titlemax of Arizona Incorporated, et al., 13 Defendants. 14 15 Pending before the Court is Plaintiff’s Motion for Order Substituting Surviving 16 Descendant for Deceased Plaintiff (Doc. 113). Plaintiff John Weeks has passed (Doc. 107), 17 and his surviving descendant, Lexus Weeks, now seeks to be substituted as the Plaintiff in 18 this matter. Defendants have filed a Response in Opposition (Doc. 117), and Lexus Weeks 19 has filed a Reply (Doc. 118). 20 I. Background 21 This action arises from Defendants allegedly unlawful repossession of Plaintiff John 22 Weeks’ car. (Doc. 30 at 6–7). The First Amended Complaint brings two Counts alleging 23 violations of the Fair Debt Collection Practices Act and two more Counts alleging a 24 violation of A.R.S. § 47-9609 and trespass to chattel. (Doc. 30 at 7–11). 25 On April 2, 2021, Plaintiff John Weeks passed. (Doc. 107). In the Suggestion of 26 Death, Plaintiff’s counsel certified that on April 21, 2021, he served Lexus Weeks with the 27 Suggestion of Death by mail. (Id. at 2). For reasons explained in a prior Order, that service 28 was deficient under Federal Rule of Civil Procedure 4. (Doc. 111 at 1). Although it is 1 reasonable to assume Lexus Weeks had actual notice, she did not have legal notice until 2 Plaintiff’s counsel served her in accordance with Arizona Rules of Civil Procedure. This 3 was accomplished on July 15, 2021. (Doc. 112). Plaintiffs’ Motion for Order Substituting 4 Surviving Descendant for Deceased Plaintiff was filed on October 6, 2021, more than six 5 months after John Weeks had passed. 6 II. Substitution of Parties 7 “If a party dies and the claim is not extinguished, the court may order substitution 8 of the proper party.” Fed. R. Civ. P. 25(a)(1). Motions for substitution may be made by 9 “any party or by the decedent’s successor or representative. If the motion is not made 10 within 90 days after service of a statement noting the death, the action by or against the 11 decedent must be dismissed.” Id. 12 The only dispute among the parties is whether Lexus Weeks is a proper party. 13 Plaintiff asserts it is enough to show that Lexus Weeks is the successor in interest to 14 demonstrate she is a proper party for purposes of Rule 25. (Doc. 113 at 3). Defendants 15 argue Lexus Weeks is not a proper party under Arizona law because she is not a court- 16 appointed personal representative of John Weeks’ estate. (Doc. 117 at 3). 17 In the Ninth Circuit, a proper party is the decedent’s legal representative. Mallonee 18 v. Fahey, 200 F.2d 918, 919 (9th Cir. 1952) (“It is plain, I think, that Rule 25(a)(1) applies 19 only to the substitution of legal representatives.”); see also Hilao v. Est. of Marcos, 103 20 F.3d 762, 766 (9th Cir. 1996) (finding that the court-appointed personal representatives to 21 an estate were proper parties). Under Arizona law, most causes of actions survive a 22 person’s death, “and may be asserted by or against the personal representative of such 23 person, provided that upon the death of the person injured, damages for pain and suffering 24 of such injured person shall not be allowed.” A.R.S. § 14-3110; see also Burnett v. 25 Daniels, 185 F.3d 866 (9th Cir. 1999) (holding that a plaintiff’s mother was not a proper 26 party under § 14-3110 because she was not a court-appointed representative of her child’s 27 estate); Stengel v. Medtronic Inc., 306 F.R.D. 230, 232 (D. Ariz. 2015) (“Only the 28 decedent’s court-appointed personal representative has standing to bring survival action 1 claims.”) (citing Burnett, 185 F.3d at 866). 2 Plaintiff does not contest that the proper party is the decedent’s legal representative, 3 nor does Plaintiff assert Lexus Weeks is a legal representative under § 14-3110 or under 4 any other law. Instead, Plaintiff cites Braillard v. Maricopa County, 232 P.3d 1263 (Ariz. 5 Ct. App. 2010), for the proposition that the limitations imposed by § 14-3110 may be 6 ignored when to do otherwise would “frustrate the remedial and deterrent purposes of other 7 statutes.” (Doc. 118 at 2). 8 In Braillard, a daughter brought a 42 U.S.C. § 1983 claim for pain and suffering on 9 behalf of her deceased mother in addition to a wrongful death action. 232 P.3d at 1267. 10 The daughter, importantly, was also the personal representative of her mother’s estate. Id. 11 at 1263. Defendants tried to dismiss the claim of damages for pain and suffering by arguing 12 that § 14-3110, by its plain language, does not permit the personal representative to receive 13 damages for the decedent’s pain and suffering. Id. at 1277. The Arizona Court of Appeals, 14 guided by the Tenth Circuit Court of Appeals, found that “it would be inconsistent with the 15 purposes of § 1983 to preclude pain and suffering damages pursuant to state law.” Id. 16 (citing Berry v. City of Muskogee, 900 F.2d 1489, 1507 (10th Cir. 1990)). “Under the 17 circumstances in this case,” the court found, “any economic damages would be relatively 18 insignificant.” Id. at 1278. Therefore, to promote “deterrence, protection and vindication 19 against § 1983 civil rights infringements” the court allowed damages for pain and suffering. 20 Id. (quoting Jaco v. Bloechle, 739 F.2d 239, 245 (6th Cir. 1984)). 21 Braillard stands for the proposition that a decedent’s personal representative may 22 bring a damages claim for the decedent’s pain and suffering under § 1983 despite 23 § 14-3110. Id. To do otherwise would likely yield little to no economic damages, which 24 is inconsistent with purpose of a § 1983 claim. Id. Here, unlike in Braillard, § 14-3110 25 poses no obstacle to John Weeks’ personal representative from collecting the full amount 26 of damages that John Weeks would, if he were still alive. The plain fact here, which 27 Braillard does not permit the Court to ignore, is that Lexus Weeks is not the decedent’s 28 personal representative. She is, therefore, not a proper party. TI. Conclusion 2 The Court finds that because Lexus Weeks is not the personal representative of John 3 || Weeks, she is not a proper party. As no proper party has filed a motion for substitution within 90 days of service of the Suggestion of Death, the Court will dismiss this matter. || See Fed. R. Civ. P. 25(a)(1). 6 Accordingly, 7 IT IS HEREBY ORDERED that Plaintiff's Motion for Order Substituting 8 || Surviving Descendant for Deceased Plaintiff (Doc. 113) is DENIED. 9 IT IS FURTHER ORDERED that no proper party having appeared or filed a 10 || motion for substitution, the Court will dismiss Plaintiff's action. The Clerk of Court shall 11 || kindly dismiss this action and enter judgment accordingly. 12 Dated this 1st day of November, 2021. 13 14 fe — □□ 15 norable'Diang/4. Hunfetewa 16 United States District Fudge 17 18 19 20 21 22 23 24 25 26 27 28 -4-