Eyre v. The City of Fairbanks et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KYLE EYRE as Personal
Representative of the Estate of CODY
EYRE,
Plaintiff,
v.
THE CITY OF FAIRBANKS, a
municipal corporation, RICHARD
SWEET, TYLER LARIMER, the
STATE OF ALASKA, ELONDRE
JOHNSON, NATHANIEL JOHNSON,
JAMES THOMAS III, and CHRISTINE
JOSLIN
Defendants.
Case No. 4:19-cv-00038-SLG
ORDER RE DEFENDANTS’ MOTION TO DISMISS FOR LACK OF STANDING
Before the Court at Docket 25 is Defendant City of Fairbanks’ Motion to
Dismiss for Lack of Standing. Defendants State of Alaska, Elondre Johnson,
Nathaniel Johnson, James Thomas III, and Christine Joslin joined the motion at
Docket 26. Defendants Richard Sweet and Tyler Larimer joined the motion at
Docket 27. Plaintiff responded in opposition at Docket 28. Defendant City of
Fairbanks replied at Docket 30. Plaintiff filed a Supplemental Submission in
Support of Opposition to Motion to Dismiss Re Standing at Docket 31. Oral
argument was not requested and was not necessary for the Court’s decision.
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BACKGROUND
Plaintiff’s Complaint alleges that on December 24, 2017, 22-year-old Cody
Dalton Eyre was shot and killed by officers of the City of Fairbanks Police
Department and troopers with the State of Alaska Department of Public State.1
Plaintiff is Cody Eyre’s father.2 On December 2, 2019, Plaintiff commenced this
action against the City of Fairbanks, Richard Sweet, Tyler Larimer, the State of
Alaska, Elondre Johnson, Nathaniel Johnson, James Thomas III, and Christine
Joslin.3 The Complaint alleges that Plaintiff is the personal representative of the
Estate of Cody Dalton Eyre (the “Estate”) and brings this action on behalf of the
Estate.4 Plaintiff asserts nine causes of action against the defendants (individually
or collectively) including: common law negligence,5 negligent failure to train and
supervise,6 excessive force in violation of 42 U.S.C. § 1983,7 failure to
1 Docket 1 at 1, ¶ 1.
2 Docket 29 at 3, ¶ 6.
3 Docket 1 at 3–4, ¶¶ 5–13. Plaintiff lists “John Does 1-10” as place-holder defendants
should he identify further defendants during discovery. Docket 1 at 5, ¶ 14. Plaintiff
also identifies Ron Dupree as a defendant in the Complaint, Docket 1 at 3, ¶ 9, but does
not include him in the case caption. It does not appear a summons was issued for him
and he has not appeared in the action.
4 Docket 1 at 2, ¶¶ 1, 4.
5 Docket 1 at 9–10, ¶¶ 41–44.
6 Docket 1 at 10–11, ¶¶ 45–50.
7 Docket 1 at 11, ¶ 53.
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accommodate in violation of the Americans with Disabilities Act (“ADA”),8 failure to
train in violation of the ADA,9 violation of the Rehabilitation Act (“RA”),10 individual
liability for wrongful death,11 vicarious liability for wrongful death,12 and assault and
battery.13
On April 17, 2020, Defendant City of Fairbanks (the “City”) filed the instant
motion to dismiss for lack of standing, contending that Plaintiff was barred by
Alaska probate law from asserting claims for the Estate because he had not been
appointed the Estate’s personal representative.14 The City’s motion was joined by
the remaining named defendants.15 On May 4, 2020, Plaintiff opposed the motion
and represented that he had since been appointed the Estate’s personal
representative on April 29, 2020.16 On May 20, 2020, Plaintiff supplemented his
8 Docket 1 at 11–12, ¶¶ 54–61.
9 Docket 1 at 13, ¶¶ 62–64.
10 Docket 1 at 13–14, ¶¶ 65–69.
11 Docket 1 at 14–15, ¶¶ 70–77.
12 Docket 1 at 15–16, ¶¶ 78–81.
13 Docket 1 at 16, ¶ 82.
14 Docket 25.
15 See Docket 26 (joinder by State of Alaska, Elondre Johnson, Nathaniel Johnson,
James Thomas III, and Christine Joslin) and Docket 27 (joinder by Richard Sweet and
Tyler Latimer).
16 Docket 28 at 2.
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opposition with the state court order appointing him as the personal representative
of the Estate of Cody Eyre.17
JURISDICTION
This Court has jurisdiction over Plaintiff’s 42 U.S.C. § 1983, ADA, and RA
claims pursuant to 28 U.S.C. § 1331, which provides for federal question
jurisdiction, and supplemental jurisdiction over Plaintiff’s state law claims pursuant
to 28 U.S.C. § 1367.
LEGAL STANDARD
I. Motion to Dismiss
Under Federal Rule of Civil Procedure 12(b)(1), a defendant may seek to
dismiss a complaint for “lack of subject-matter jurisdiction.” “The Article III case or
controversy requirement limits federal courts’ subject matter jurisdiction by
requiring, inter alia, that plaintiffs have standing . . . .”18 “Standing addresses
whether the plaintiff is the proper party to bring the matter to the court for
adjudication.”19 When a defendant challenges subject matter jurisdiction under
Rule 12(b)(1), the plaintiff has the burden of proof of establishing jurisdiction.20
17 Docket 31-1 at 1.
18 Chandler v. State Farm Mut. Auto. Ins. Co, 598 F.3d 1115, 1121 (9th Cir. 2010) (citing
Allen v. Wright, 468 U.S. 737, 750 (1984)).
19 Id. (citing Erwin Chemerinsky, Federal Jurisdiction § 2.3.1, at 57 (5th ed. 2007)).
20 See Bishop Paiute Tribe v. Inyo Cty., 863 F.3d 1144, 1151 (9th Cir. 2017) (“The party
asserting jurisdiction bears the burden of establishing subject matter jurisdiction.
Dismissal for lack of jurisdiction is appropriate if the complaint, considered in its entirety,
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II. The Role of the Personal Representative
“Alaska probate law . . . establishes a comprehensive scheme for the
representation of an estate in legal matters [that] . . . relies on the personal
representative to act on the estate’s behalf and does not allow others to exercise
those powers.”21 Personal representatives must be court-appointed and their
“duties and powers ‘commence upon appointment,’” but “also ‘relate back in time’
to prior acts by the appointed person.”22 “A personal representative may ratify and
accept acts on behalf of the estate done by others where the acts would have been
proper for a personal representative.”23
Among other duties, personal representatives “are authorized
to . . . ‘prosecute or defend claims[] or proceedings . . . for the protection of the
estate.’”24 They have the “same standing to sue and be sued . . . as the decedent
had immediately before death.”25 Under Alaska law, “[a]ll causes of action by one
on its face fails to allege facts sufficient to establish subject matter jurisdiction.” (citation
omitted) (quoting In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546
F.3d 981, 984–85 (9th Cir. 2008))).
21 Hester v. Landau, 420 P.3d 1285, 1289 (Alaska 2018).
22 Id. at 1288 (quoting AS 13.16.340).
23 AS 13.16.340.
24 Hester, 420 P.3d at 1288 (quoting AS 13.16.410(22) (alteration and second omission
in original)).
25 AS 13.16.350(c); see also Hester, 420 P.3d at 1288 (“Although neither provision
explicitly states that this grant of authority is exclusive or that no other person may take
such actions on behalf of the estate, the only person to whom they delegate is the
personal representative.”).
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person against another . . . survive to the personal representative[].”26 Further,
Alaska law provides that:
[W]hen the death of a person is caused by the wrongful act or
omission of another, the personal representatives of the former may
maintain an action therefore against the latter, if the former might have
maintained an action, had the person lived, against the latter for an
injury done by the same act or omission.27
DISCUSSION
The City contends that a “party’s standing to bring a civil rights lawsuit in this
court is guided by 42 U.S.C. § 1988 which requires that a party must have standing
under the state’s wrongful death or survivor statutes to bring claims under 42
U.S.C. §§ 1981, 1983, and 1988.”28 When the City filed its motion to dismiss,
Plaintiff was not the Estate’s personal representative. Therefore, the City
maintains that Plaintiff lacks standing to pursue this action.29
In opposition to the City’s motion, Plaintiff acknowledges that, as of the filing
of the Complaint in December 2019, Kyle Eyre had not been appointed as personal
representative.30 According to Plaintiff’s counsel, his office had instructed Mr. Eyre
26 AS 09.55.570.
27 AS 09.55.580(a). “[T]he purpose of creating the action was primarily to compensate
those who had suffered direct losses as a result of decedent’s death.” In re Estate of
Pushruk, 562 P.2d 329, 331 (Alaska 1977). “Under the statute, . . . only the personal
representative may institute an action.” Id. at 333.
28 Docket 25 at 3 (citing Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir. 2004)).
29 Docket 25 at 5.
30 Docket 28 at 2.
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to file documents to initiate probate in November 2018 (more than a year before
filing the Complaint), but that Mr. Eyre had misunderstood and not done so.31
Plaintiff’s counsel maintains that they did not realize the error until the City flagged
it in the instant motion, at which time they immediately filed the necessary
documents and obtained the appointment order in April 2020.32 Plaintiff asserts
that “Kyle Eyre’s appointment as personal representative ‘relates back’ in time to
his filing of the Complaint” on December 2, 2019.33
In its reply brief, the City contends that because “Plaintiff did not have legal
authority to bring this lawsuit on behalf of the estate,” it was “a nullity at the time it
was filed.”34 The City also contends that the subsequent appointment as personal
representative does not relate back to the time of the filing of the Complaint, and
that the applicable statute of limitations expired on December 24, 2019.35
31 Docket 29 at 2, ¶¶ 2–3. According to counsel’s affidavit accompanying Plaintiff’s
opposition, Mr. Eyre had “filed a different document to establish his right to act on behalf
of his son’s military life insurance.” Docket 29 at 2, ¶ 3.
32 Docket 29 at 2, ¶¶ 3–4.
33 Docket 28 at 2 (citing AS § 13.16.340, which provides:
The duties and powers of a personal representative commence upon
appointment. The powers of a personal representative relate back in time to give
acts by the person appointed that are beneficial to the estate occurring prior to
appointment the same effect as those occurring thereafter. . . . A personal
representative may ratify and accept acts on behalf of the estate done by others
where the acts would have been proper for a personal representative.).
34 Docket 30 at 4.
35 Docket 30 at 4.
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The City moves to dismiss the instant action under Rule 12(b)(2) for “lack of
personal jurisdiction based upon a lack of standing.”36 However, “[b]ecause
standing . . . pertain[s] to federal courts’ subject matter jurisdiction, [it is] properly
raised in a Rule 12(b)(1) motion to dismiss.”37
The Court addresses first the City’s contention that a party bringing a civil
rights lawsuit must have standing under the state’s wrongful death or survivor
statutes. The Court agrees with the City that under Alaska law, only a personal
representative may bring Plaintiff’s state law claims.38 However, the Court must
consider whether Alaska’s survivorship laws limit standing for each of Plaintiff’s
federal claims.39
“In § 1983 actions, . . . the survivors of an individual killed as a result of [a
constitutional violation] may assert a . . . claim on that individual’s behalf if the
relevant state’s law authorizes a survival action.”40 Accordingly, Plaintiff must
meet Alaska’s survivorship requirements to maintain a § 1983 claim on behalf of
the Estate.
36 See Docket 25 at 1.
37 Chandler v. State Farm Mut. Auto. Ins. Co, 598 F.3d 1115, 1122 (9th Cir. 2010).
38 Hester v. Landau, 420 P.3d 1285, 1289 (Alaska 2018).
39 Docket 1 at 13–14, ¶¶ 65–69.
40 Hayes v. Cty. of San Diego, 736 F.3d 1223, 1229 (9th Cir. 2013) (first omission in
original) (quoting Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir.
1998)); see also Wheeler v. City of Santa Clara, 894 F.3d 1046, 1051–54 (9th Cir. 2018)
(holding that California’s survivorship law applied to § 1983 action).
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In contrast, “Congress did not provide a scheme for survivorship of ADA or
RA claims after death.”41 The Ninth Circuit recently held that “[state] survivorship
law does not govern . . . claims under those statutes.”42 Instead, “a uniform federal
rule of survivorship” applies to such claims.43 In discussing “the limits of who
federal common law would permit to bring suit” under the ADA or RA, the Ninth
Circuit cited with approval an opinion from the district court for the Southern District
of California that permitted a mother to bring a claim under the Affordable Care Act
on behalf of her deceased child.44 Accordingly, the Court concludes that under
federal common law, Kyle Eyre is permitted to bring survivorship claims for
compensatory damages under the ADA and RA on behalf of his son Cody Eyre.45
Because Plaintiff need not establish that he meets the requirement of Alaska’s
41 Wheeler, 894 F.3d at 1054.
42 Id. at 1055.
43 Id. at 1056.
44 See id. at 1057 (citing Prescott v. Rady Children’s Hosp.-San Diego, 265 F. Supp. 3d
1090, 1100 (S.D. Cal. 2017)); see also Lopez v. Regents of the Univ. of Cal., 5 F. Supp.
3d 1106, 1114, 1119–20 (N.D. Cal. 2013) (holding that under federal common law,
student’s Title IX claim survives death and parents have standing to bring claim on her
behalf).
45 Only Plaintiff’s compensatory damages claims under the ADA and RA survive
because, as the Ninth Circuit explained in Wheeler, “under federal common law, federal
claims typically survive a decedent’s death if they are remedial in nature and not penal.”
894 F.3d at 1056–57. For this reason, “the ADA and RA compensatory claims do not
abate due to [a plaintiff’s] death, although the punitive claims do.” Id.
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survivorship laws to maintain his ADA and RA claims against the defendants, the
Court will deny the City’s motion to dismiss as it pertains to those claims.
The Court turns next to the City’s contentions that Plaintiff’s remaining
claims must be dismissed as they were a nullity as of filing and are time-barred.
The City contends that because “Plaintiff did not have legal authority to bring this
lawsuit on behalf of the estate . . . this lawsuit was a nullity at the time it was filed.”46
The Court disagrees; the City does not cite any authority for this proposition and
the Federal Rules of Civil Procedure expressly provide procedural remedies for
parties in such circumstances. For example, Rule 17(a) provides that “[c]ourts
‘may not dismiss an action for failure to prosecute in the name of the real party in
interest until, after an objection, a reasonable time has been allowed for the real
party in interest to ratify, join, or be substituted into the action.’”47 Similarly, Rule
15 allows plaintiffs to cure jurisdictional defects by amendment of or supplement
to their pleadings.48 These rules presuppose that an action is not necessarily “a
nullity at the time it was filed” simply because the wrong plaintiff brought suit, as
the City contends.
47 Jones v. Las Vegas Metro. Police Dep’t, 873 F.3d 1123, 1128 (9th Cir. 2017) (quoting
Fed. R. Civ. P. 17(a)(3)).
48 See Fed. R. Civ. P. 15; see also e.g., Northstar Fin. Advisors, Inc. v. Schwab Invs.,
779 F.3d 1036, 1044 (9th Cir. 2015) (holding that “Rule 15(d) permits a supplemental
pleading to correct a defective complaint” and affirming district court’s conclusion that
“parties may cure standing deficiencies through supplemental pleadings”).
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The City next contends that because “Plaintiff failed to perfect his
representative capacity to bring claims on behalf of the estate before the limitations
period had lapsed,” the case must be dismissed.49 It is undisputed that although
Kyle Eyre alleged he was the personal representative of the Estate of Cody Eyre
in the Complaint filed on December 2, 2019,50 he was not formally appointed as
such until April 29, 2020,51 several months after the statute of limitations had
expired on some of Plaintiff’s claims.52 Accordingly, at issue is whether Plaintiff’s
appointment as personal representative relates back to the date of the Complaint
such that Plaintiff’s claims are not time-barred.
After the probate court formalized his status as personal representative of
the Estate, Plaintiff ratified the Complaint as of its filing and asserted that he sought
49 Docket 30 at 4 (citing Wheeler v. City of Santa Clara, 894 F.3d 1046, 1059 (9th Cir.
2018)). Although the City contends that the statute of limitations is two years for an
action “against a peace officer for acts done in an official capacity” and for actions in
tort, Docket 30 at 2–3 (citing AS 09.10.070(b); AS 09.55.580(a)), it does not provide the
statute of limitations for Plaintiff’s ADA and RA claims. However, because the Court will
deny the City’s motion as to Plaintiff’s ADA and RA claims, it need not consider the
statute of limitations for those claims.
50 Docket 1 at 2, ¶ 4 (“Plaintiff, Kyle Eyre, is the personal representative of the Estate of
Cody Dalton Eyre and is authorized to bring this Complaint to redress for the injuries
and damages sustained as a result of the conduct alleged in this complaint.”).
51 Docket 28 at 2; see also Docket 31-1 at 1.
52 AS 09.55.580 provides that the statute of limitations for a wrongful death action is two
years. Similarly, the statute of limitations for actions in tort is two years from the accrual
of the cause of action. See AS 09.10.070. It is undisputed that Plaintiff’s causes of
action accrued on December 24, 2017. See Docket 1 at 7, ¶ 34; Docket 25 at 2.
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to proceed with the litigation.53 Federal Rule of Civil Procedure 17(a)(3) provides
that a court “may not dismiss an action for failure to prosecute in the name of the
real party in interest until . . . a reasonable time has been allowed for the real party
in interest to ratify, join, or be substituted into the action.” As the Ninth Circuit has
explained, the core purpose of Rule 17(a) is “to prevent forfeiture of an action when
determination of the right party to sue is difficult or when an understandable
mistake has been made.”54 It is not, however, “a provision to be distorted by parties
to circumvent the limitations period” or to protect a plaintiff who “files a lawsuit to
toll the statute of limitations and later obtains a cause of action.”55
When a plaintiff has cured the defect before the court considered the
dismissal or where a plaintiff made an understandable mistake in failing to formally
secure personal representative status, district courts have allowed time-barred
claims to proceed. For instance, in In re Seaway Co. of Catalina, the plaintiff filed
a timely claim under the Death on the High Seas Act on behalf of his late mother’s
estate, but was not appointed its personal representative until after the statute of
limitations had expired.56 The district court held that the plaintiff nevertheless had
standing because he had “cured the real party in interest issue within a reasonable
53 Docket 29 at 3, ¶ 6.
54 Wulff v. CMA, Inc., 890 F.2d 1070, 1074 (9th Cir. 1989).
55 Id. at 1075.
56 No. CV-11-0336-PA, 2013 WL 877393, at *10 (C.D. Cal. Mar. 7, 2013).
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time.”57 Similarly, in Estate of Hirata v. Ida, the plaintiff filed an ERISA action on
behalf of her late spouse’s estate, but was not appointed its personal
representative until after the statute of limitations had expired.58 The court
reasoned that the “lack of authority at the time of the filing of the Complaint may
not be fatal because, at the present time, she has the authority [to] sue on behalf
of the Estate.”59
In the instant action, Plaintiff alleged his claims as the Estate’s personal
representative; his failure to secure that appointment until April 2020 is an
understandable mistake that arose from a miscommunication with his counsel.
Moreover, the Court finds that Plaintiff, having cured the defect promptly after the
City brought it to light, ratified the action within a reasonable time.60 Alaska’s
57 Id.
58 No. 10-00084-LEK, 2012 WL 3777148, at *12 (D. Hawaii, Aug. 28, 2012).
59 Id.; see also Brohan v. Volkswagen Mfg. Corp., 97 F.R.D. 46, 49, 50 (E.D.N.Y. 1983)
(denying motion to dismiss plaintiff’s wrongful death claim because “lateness in
obtaining and pleading her appointment as executrix is the kind of technical mistake
apparently contemplated by Rule 17(a)” and concluding that “[t]he fact that an
applicable statute of limitations may have run before the real parties were substituted is
not significant where the change is merely formal and in no way alters the known facts
and issues on which the action is based” (quoting Metro. Paving Co. v. Int’l Union of
Operating Eng’rs, 439 F.2d 300, 306 (10th Cir. 1971))).
60 Compare Hassanati v. International Lease Finance Corp., where the district court
concluded that Rule 17(a) did not apply because “plaintiffs . . . took no steps to remedy
their lack of standing for more than two years after being apprised of the deficiency by
the court” and “still ha[d] taken no effective steps to secure appointment as the
decedents’ personal representatives” at the time of dismissal. 51 F. Supp. 3d 887, 902
(C.D. Cal. 2014) (emphasis in original), aff’d 643 F. Appx. 620 (9th Cir. 2016).
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probate law explicitly provides that “a personal representative may ratify and
accept acts on behalf of the estate done by others where the acts would have been
proper for a personal representative.”61 The City and the other named defendants
have been on notice of the lawsuit and have not alleged prejudice as a result of
Plaintiff’s delay in formalizing his appointment as personal representative.
Moreover, as discussed above, Plaintiff had an independent basis for standing for
his ADA and RA claims against the City arising from the same set of facts.
The City cites the Ninth Circuit’s opinion in Wheeler v. City of Santa Clara in
its briefing.62 In Wheeler, the plaintiff filed suit in his individual capacity and on
behalf of his biological mother after she was shot and killed by police officers.63 In
his complaint, the plaintiff named “John Doe 1” as the “to-be-identified personal
representative” of the decedent’s estate.64 But the “estate was not submitted to
probate and no personal representative was appointed.”65 The district court
dismissed the plaintiff’s claims without leave to amend, finding that the claims were
barred by California’s survivorship statute because the plaintiff was neither the
61 AS 13.16.340.
62 Docket 30 at 4 (citing 894 F.3d 1046, 1059 (9th Cir. 2018)).
63 Wheeler, 894 F.3d at 1050. At the time of the mother’s death, the plaintiff had no
legal relationship with his mother, having been adopted early as a young child. Id. at
1058.
64 Id. at 1050.
65 Id.
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personal representative nor the successor in interest of the decedent.66 On
appeal, the Ninth Circuit affirmed, reasoning that “[e]ven assuming . . . that [the
plaintiff] could have been appointed the personal representative, he was not . . . at
the time of dismissal” and he “provides no authority that suggests a ‘John Doe,’ as
yet nonexistent personal representative plaintiff can serve as a placeholder for
hypothetical proper plaintiffs.”67
In Wheeler, not only was the plaintiff not the personal representative of the
estate, but no personal representative had even been identified or appointed at the
time of dismissal. Here, in contrast, Kyle Eyre has cured the defect in his status
as personal representative and ratified the original Complaint before the Court
reached the issue of standing.
Based on the foregoing, the Court will allow Plaintiff’s ratification of the
original Complaint in his capacity as court-appointed personal representative of
the Estate and relate it back to the original complaint. Accordingly, the Court will
deny the City’s motion to dismiss for lack of standing. The Court’s conclusion
adheres to the Ninth Circuit’s “longstanding policy in favor of deciding cases on the
merits.” 68
66 Id. at 1050–51.
67 Id. at 1059.
68 Jones v. Las Vegas Metro. Police Dep’t, 873 F.3d 1123, 1128 (9th Cir. 2017).
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CONCLUSION
In light of the foregoing, Defendant City of Fairbanks’ Motion to Dismiss for
Lack of Standing at Docket 25 is DENIED.
DATED this 10th day of June, 2020 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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