United States District Court, W.D. Missouri, Western Division
ORDER GRANTING DEFENDANT'S MOTION TO
D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT.
is Defendant's Motion to Dismiss. Doc. #7. For the
following reasons, Defendant's motion to dismiss is
September 11, 2017, Claude Dean Parrott was involved in an
automobile accident involving a vehicle driven by United
States Postal Service (“USPS”) employee Kristal
Lockhart, and as a result of the injuries he sustained,
Parrott died. In January 2019, Onilea Parrott (decedent's
wife); Dwight Parrott, Marlin Parrott, and Monte Parrott
(decedent's children); Tabatha Parrott (decedent's
daughter-in-law); and Monte and Tabatha Parrott LLC
(“the LLC”) filed this lawsuit pursuant to the
Federal Tort Claims Act (“FTCA”). In Count I, all
Plaintiffs seek damages pursuant to Missouri's wrongful
death statute. In Count II, Monte Parrott, Tabatha Parrott,
and the LLC seek recovery of the fair market value of the
vehicle (a 1997 Ford L8000 Dump Truck) that was damaged in
the accident. Defendant moves to dismiss all claims brought
by Tabatha Parrott and the LLC and Count II in its entirety.
moves to dismiss certain claims arguing the Court lacks
subject matter jurisdiction over those claims. When
considering a “factual attack” to jurisdiction,
“the court considers matters outside the
pleadings….” Osborn v. United States,
918 F.2d 724, 729 n.6 (8th Cir. 1990). This Court “is
free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case.” Id.
at 730 (quoting Mortensen v. First Fed. Sav. & Loan
Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).
“[N]o presumptive truthfulness attaches to the
plaintiff's allegations, and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional
claims.” Id. The burden of proving
jurisdiction exists rests with the plaintiff. Id.
moves to dismiss other claims arguing Plaintiffs fail to
state a claim upon which relief may be granted. The liberal
pleading standard created by the Federal Rules of Civil
Procedure requires Aa short and plain statement of the claim
showing that the pleader is entitled to relief.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam) (quoting Fed.R.Civ.P. 8(a)(2)). “Specific facts
are not necessary; the statement need only 'give the
defendant fair notice of what the…claim is and the
grounds upon which it rests.'” Id. (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). The Court Amust accept as true…the
complaint's factual allegations and view them in the
light most favorable to the Plaintiff[ ].”
Stodghill v. Wellston Sch. Dist., 512 F.3d 472, 476
(8th Cir. 2008).
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully. Where a complaint
pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
[A] court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.
Id. at 679. A claim is facially plausible if it
allows a reasonable inference that the defendant is liable
for the conduct alleged. See Horras v. Am. Capital
Strategies, Ltd., 729 F.3d 798, 801 (8th Cir. 2013).
moves to dismiss Tabatha Parrott's and the LLC's
claims in Count I because they are not eligible to bring a
wrongful death action. In Count I, all Plaintiffs allege they
“are the only persons entitled to bring this action for
the wrongful death of Claude Dean Parrott pursuant to
Missouri Revised Statute § 537.080.” Doc. #1, at
1.Missouri's wrongful death statute sets
forth classes of individuals who are entitled to file suit.
Mo. Rev. Stat. § 537.080. The first class includes
“[t]he spouse or children or the surviving lineal
descendants of any deceased children, natural or adopted,
legitimate or illegitimate, or by the father or mother of the