United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
This matter is before the Court on defendants' motions to dismiss and plaintiffs' motion for summary judgment. The motions have been fully briefed and are ripe for disposition.
Two sets of plaintiffs filed claims in two separate actions arising from the death of Antonio L. Johnson ("decedent") and the circumstances of an arrest that preceded his death. The first action was filed in state court by the decedent's parents, Henrietta Johnson and Michael Robinson, and Yvonne Booker, as the Next Friend of C.B., decedent's child. The complaint alleged a number of state law claims including a claim for wrongful death. The second action was filed in this Court by the decedent's wife, Latasha Johnson, individually and as the Next Friend of ADJ, ATJ, TJJ, and TFW, decedent's children. The complaint alleged a number of federal and state law claims including a claim for wrongful death. Subsequently, Latasha Johnson, individually and as the Next Friend of ADJ, ATJ, TJJ, and TFW, moved to intervene in the state court action because only one action for wrongful death may be brought under Missouri law. The motion to intervene was granted by the state court. Thereafter, Latasha Johnson, individually and as the Next Friend of ADJ, ATJ, TJJ, and TFW, filed an intervening petition alleging their federal and state law claims.
Because the intervening petition included federal law claims, the state court action was removed to this Court. This Court consolidated the cases. At the time of consolidation, there were pending motions in both cases. For clarity, Henrietta Johnson, Michael Robinson, and Yvonne Booker, as the Next Friend of C.B., will be referred to as the "original state court plaintiffs" and their action will be referred to as case 1311 to identify the motions filed in that action prior to consolidation. Latasha Johnson, individually and as the Next Friend of ADJ, ATJ, TJJ, and TFW, will be referred to as the "original federal court plaintiffs" and their action will be referred to as case 286 to identify the motions filed in that action prior to consolidation.
II. Legal Standard - Motion to Dismiss
The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the legal sufficiency of a complaint so as to eliminate those actions "which are fatally flawed in their legal premises and deigned to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity." Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)). "To survive a motion to dismiss, a claim must be facially plausible, meaning that the factual content... allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court must "accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party." Id. (quoting Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005)). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, " will not pass muster. Iqbal, 556 U.S. at 678.
III. Case 286
In case 286, defendants seek dismissal of (1) the claims against Officers Mars, Kenner, and Corson because they are sued in their official capacities and the claims are redundant as there is a claim against the City of Hazelwood; (2) the state law claims for negligent hiring and negligent supervision because plaintiffs have not pled an exception to sovereign immunity under Missouri law; (3) the assault and battery claim because it does not survive the death of the decedent under Missouri law; (4) the federal and state law claims based on the death of the decedent, including the section 1983 and wrongful death claims, because plaintiffs lack standing as there is another pending action for the wrongful death of decedent; and (5) the claims against the Hazelwood Police Department as it does not exist as a separate legal entity and the claims are duplicative of those against the City of Hazelwood.
Plaintiffs concede that the separate claim for assault and battery should be stricken and dismissed from count III because any such claim is part of the wrongful death claim, also stated in count III. Additionally, plaintiffs concede the dismissal of the Hazelwood Police Department because it does not exist as a legal entity separate from the City of Hazelwood.
Plaintiffs agree that under Missouri law, section 537.080 RSMo, "[o]nly one action may be brought... against any one defendant for the death of any one person." However, plaintiffs argue that dismissal of their claim because there is another wrongful death claim filed by different plaintiffs is not warranted. Plaintiffs were allowed to intervene in the other wrongful death claim while it was still pending in state court and once both cases were pending in this Court, the cases were consolidated. As a result, defendants' motion to dismiss the wrongful death claim is denied. Further, as the cases have been consolidated, the motion to dismiss the section 1983 claim will also be denied.
Defendants argue that the complaint purports to allege claims against Officers Mars, Kenner, and Corson only in their official capacities and, therefore, the claims should be dismissed as redundant because there is a claim against the City of Hazelwood. "A suit against a public employee in his or her official capacity is merely a suit against the public employer." Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999); see also Artis v. Francis Howell North Band Booster Ass'n, Inc., 161 F.3d 1178, 1182, 1185 (8th Cir. 1998) (finding district court correctly dismissed claim, against school official sued only in his official capacity, as redundant to claim against official's public employer, a school district). It is proper for a court to dismiss as redundant claims asserted against an official that are also asserted against the official's governmental employer. Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010).
"If the complaint does not specifically name the defendant in his individual capacity, it is presumed he is sued only in his official capacity." Artis, 161 F.3d at 1182. Here, however, the complaint names the defendants in their individual capacities. The first paragraph of the complaint alleges that the action has been brought against Officers Mars, Kenner, and Corson in their individual capacities. It again refers to the "individual" police officers in paragraph six of the complaint. The heading of count II of the complaint indicates that it is brought against the "individual" defendants and alleges a § 1983 claim against Officers Mars, Kenner, and Corson. The complaint incorporates the general allegations set forth in paragraphs one through fifty in Count II as though fully set forth. It is clear to the Court that the complaint stated a claim against Officers Mars, Kenner, and Corson in their individual capacities. As a result, defendants' motion to dismiss the claims against Officers Mars, Kenner, and Corson is denied.
Finally, defendants seek dismissal of the state law claims for negligent hiring and negligent supervision arguing that plaintiffs have not pled an exception to sovereign immunity under Missouri law. In response, plaintiffs contend that they are permitted to bring their claims because the City of Hazelwood waived sovereign immunity for tort claims when it purchased liability insurance. Plaintiff relies on section 537.610 RSMo, which provides for the waiver of sovereign immunity by operation of law upon the purchase of insurance covering tort claims by a municipality. Topps v. City of Country Club Hills, 272 S.W.3d 409, 414-15 (Mo. App. E.D. 2008). However, the extent of that waiver is expressly dictated, and limited, by the terms of the insurance policy. Id. "A public entity does not waive its sovereign immunity by maintaining an insurance policy where that policy includes a provision stating that the policy is not meant to constitute a waiver of sovereign immunity." White v. City of Ladue, 422 S.W.3d 439, 449 (Mo. App. E.D. 2013) (citation omitted). "The liability of a public entity for torts is the exception to the general rule of immunity for tort and it is incumbent upon a plaintiff ...