United States District Court, E.D. Missouri, Eastern Division
JAMES TOMPKINS, survivor of JAVONTE TOMPKINS, now deceased, and JA'LEN WASHINGTON, Plaintiffs,
CRAIG HAVENS, and ABF FREIGHT SYSTEM, INC. Defendants.
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs' second motion
(ECF No. 26) for leave to amend their complaint. The case
arises out of a motor vehicle collision involving a vehicle
driven by Defendant ABF Freight System, Inc.'s
(“ABF”) employee, Defendant Craig Havens, and
another driven by decedent Javonte Tompkins
(“Decedent”). Plaintiff Ja'len Washington
(“Washington”) was a passenger in Decedent's
vehicle. Decedent died as a result of the collision, and
Washington was injured.
and Decedent's father, Plaintiff James Tompkins
(“Tompkins”), have now filed suit. In their first
amended complaint, both Plaintiffs asserted negligence claims
against Havens (Count 1), as well as negligence and
respondeat superior claims against ABF (Count 2).
Tompkins's claims were brought pursuant to Missouri's
wrongful death statute, Mo. Rev. Stat. § 537.080.
20, 2018, the Court granted Defendants' motion for a more
definite statement, requiring Plaintiffs to amend their
complaint in order to state in separate counts each
Plaintiff's claim against each Defendant based on each
theory of relief. ECF No. 23. Plaintiffs' current
proposed second amended complaint complies with the
Court's June 20th Order to some degree, by separating the
wrongful death claims of Tompkins from the personal injury
claims of Washington. However, Plaintiffs have not separated
their negligence and respondeat superior claims against ABF
into different counts.
also seek in their current motion to add Javonte Oliver
Tompkins, Jr. (“Tompkins, Jr.”), son of Decedent,
as a Plaintiff in this action, to pursue a wrongful death
claim for the death of his father. Plaintiffs' proposed
second amended complaint separates the wrongful death claims
of Tompkins and Tompkins, Jr. into different counts.
response to Plaintiffs' motion, Defendants state that
they do not oppose the addition of Tompkins, Jr. as a
Plaintiff. Nor do Defendants oppose Plaintiffs' general
attempt to comply with the Court's June 20th Order.
However, Defendants request that the Court order Plaintiffs
(1) to separate their negligence and respondeat superior
claims against ABF into separate counts, as the claims set
forth different theories of relief, and (2) to combine the
wrongful death claims of Tompkins and Tompkins, Jr. as to
each Defendant, as wrongful death constitutes one cause of
action against any one defendant. See Mo. Rev. Stat.
§ 537.080.2 (“Only one action may be brought under
this section against any one defendant for the death of any
reply, Plaintiffs state that they do not object to the
changes Defendants request. Those changes are also supported
by the caselaw. E.g., Oberkramer v. City of
Ellisville, 650 S.W.2d 286, 300 (Mo.Ct.App. 1983)
(holding that where the decedent's widow and minor
children brought their wrongful death claims in separate
counts as to a single defendant, each praying for a separate
judgment, the complaint contravened § 537.080.2);
see also Mo. Rev. Stat. § 537.095.3 (providing
for only one assessment of total damages by the trier of
facts followed by an apportionment of these damages among
those persons entitled thereto as determined by the court).
the Court will grant Plaintiffs' motion in part, and
order Plaintiffs to file a second amended complaint that
separates their claims by count as follows: (1) Tompkins and
Tompkins, Jr.'s wrongful death claim against Defendant
Havens; (2) Washington's negligence claim against
Defendant Havens; (3) Tompkins and Tompkins, Jr.'s
wrongful death claim against Defendant ABF; (4)
Washington's negligence claim against Defendant ABF; (5)
Washington's respondeat superior claim against Defendant
IT IS HEREBY ORDERED that Plaintiffs'
Second Motion for Leave to Amend Complaint is GRANTED
in part, as set forth above. ECF No. 26.
IS FURTHER ORDERED that, no later than 7
days from the date of this Memorandum and Order,
Plaintiffs shall file an amended complaint that complies with
this Memorandum and Order as set forth above.
IS FURTHER ORDERED that any request for appointment
of next friend shall be filed as a separate motion.
 Plaintiffs also attach as exhibits to
their motion a “Petition for Appointment of Next
Friend” for Tompkins, Jr., a minor, and a related
proposed order. However, Plaintiffs do not reference these
exhibits in their current motion; nor do they make any
request for an appointment of a next friend. To the extent