Smithland Towing & Construction, LLC et al, No. 5:2018cv00113 - Document 143 (W.D. Ky. 2019)

Court Description: MEMORANDUM OPINION & ORDER signed by Senior Judge Thomas B. Russell on 6/17/2019. Denying 105 Motion to Dismiss; granting 122 Motion for Leave to Amend Claims; granting 123 Motion for Leave to File Amended Answer. cc: Counsel(KJA)

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Smithland Towing & Construction, LLC et al Doc. 143 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT PADUCAH CIVIL ACTION NO. 5:18-CV-113-TBR IN THE MATTER OF THE COMPLAINT OF SMITHLAND TOWING & CONSTRUCTION, LLC, AS TITLE OWNER, AND WRBM, LLC D/B/A WESTERN RIVERS BOAT MANAGEMENT, INC. AS OPERATOR AND OWNER PRO HAC VICE OF THE WILLIAM E. STRAIT, OFFICIAL NO. 270550, FOR EXONERATION FROM OR LIMITATION OF LIABILITY MEMORANDUM OPINION AND ORDER This matter is before the Court on a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) by Limitation Plaintiffs, Smithland Towing and Construction, LLC, WBRM, LLC d/b/a/ Western Rivers Boat Management, Inc., and third party defendant, First Marine, LLC (hereinafter, collectively “Movants”). [R. 105.] Claimant, Nakeetha Savoy, as foreign guardian of her daughter, K.S., responded. [R. 124.] Movants replied. [R. 128.] Fully briefed, this matter is ripe for adjudication. For the reasons stated herein, Movants’ Motion to Dismiss, [R. 105], is DENIED. Also, Savoy filed contemporaneously with her Response a Motion for Leave to File Amended Claims, [R. 122], and a Motion for Leave to File Amended Answer, [R. 123]. No response to either motion was filed. For the reasons stated herein, Savoy’s Motion for Leave to File Amended Claims, [R. 122], is GRANTED and Savoy’s Motion for Leave to File Amended Answer, [R. 123], is GRANTED. In their Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), Movants argue that Savoy lacks the procedural capacity to bring a wrongful death suit as she is not the personal representative of the deceased. [R. 105-1 at 3.] In her Response, Savoy clarifies that she does not bring a wrongful death claim but an action for loss of consortium on behalf of her 1 Dockets.Justia.com daughter. [R. 124 at 3.] Savoy cites Kentucky case law in support of the assertion that “Kentucky recognizes the right of foreign (non-resident) guardian to bring actions on behalf of non-resident minor children in Kentucky.” [Id. at 4.] Furthermore, in order to ensure her ability to file K.S.’s claim for loss of consortium and her answer, Savoy moves to amend her claim and answer “to include her status as the authorized foreign guardian of the minor child K.S.” [Id. at 5.] On May 2, 2019, the Marshall County District Court authorized Savoy as the foreign guardian of K.S. [R. 124-1.] In their Reply, Movants do not dispute Savoy’s ability to file an action for loss of consortium rather than a wrongful death claim. [R. 128.] Also, no response has been filed disputing Savoy’s motions to amend her claim and answer. Therefore, Movants’ Motion to Dismiss, [R. 105], is DENIED. Furthermore, Savoy’s Motion for Leave to File Amended Claims, [R. 122], is GRANTED and Savoy’s Motion for Leave to File Amended Answer, [R. 123], is GRANTED. CONCLUSION For the foregoing reasons, IT IS ORDERED: 1) Movants’ Motion to Dismiss, [R. 105], is DENIED; 2) Savoy’s Motion for Leave to File Amended Claims, [R. 122], is GRANTED; and 3) Savoy’s Motion for Leave to File Amended Answer, [R. 123], is GRANTED. IT IS SO ORDERED. June 17, 2019 cc: Counsel of Record 2

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