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Lamphere v. United States

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 10, 2007

TAMMIE LAMPHERE, PERSONAL REPRESENTATIVE OF THE ESTATE OF KRISTOPHOR JOHN LAMPHERE, DECEASED, TAMMIE LAMPHERE, INDIVIDUALLY, MARISSA CHACON, INDIVIDUALLY, BY AND THRU HER MOTHER, TAMMIE LAMPHERE, BRIANA CHACON, INDIVIDUALLY, BY AND THROUH HER MOTHER, TAMMIE LAMPHERE, LINDA KOLM, PERSONAL REPRESENTATIVE OF THE ESTATE OF KARL KOLB, DECEASED, LINDA KOLB, INDIVIDUALLY, BRETT KOLB, INDIVIDUALLY, DONALD L. WOMBLE, SR., PERSONAL REPRESENTATIVE OF THE ESTATE OF DONALD L. WOMBLE, JR., DECEASED, DONALD L. WOMBLE, SR., INDIVIDUALLY, JEANNE WOMBLE, INDIVIDUALLY, KRISTIN WOOMBLE, INDIVIDUALLY, BY AND THROUGH HER MOTHER, STACEY L. GARDNER, AMBER WOMBLE, INDIVIDUALLY, DONALD L. WOMBLE, III, BY AND THROUGH HIS MOTHER, STACEY L. GARDNER, PLAINTIFFS,
v.
UNITED STATE OF AMERICA, DEFENDANT.

The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER GRANTING MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT [Dkt No. 24]

This consolidated action is before the court on Plaintiffs' Motion For Leave To File First Amended Complaint ("Motion") for the purpose of joining necessary parties in this Federal Tort Claims Act ("FTCA") matter. Defendant the United States filed Opposition, and Plaintiffs filed a Reply. Pursuant to Civil Local Rule 7.1(d)(1), the court finds the issues presented appropriate for decision on the papers and without oral argument. For the reasons discussed below, the Motion is GRANTED.

This action arises from the October 24, 2004 mountain crash of a Learjet after take-off from San Diego's Brown Field Municipal Airport. All five persons on board were killed. Plaintiffs seek damages for wrongful death and loss of consortium. By Order entered May 10, 2007, this court granted Plaintiffs' unopposed motion establishing New Mexico law applies to the claims of New Mexico resident plaintiffs. Plaintiffs request leave to amend the Complaint to add eight named plaintiffs who purportedly can state loss of consortium claims under New Mexico's broad definition of persons eligible to receive such damages.

The United States opposes the Motion on grounds two of the new plaintiffs identified in the [Proposed] First Amended Complaint, Thomas A. Lamphere and Cheryl L. Lesar, failed to present administrative claims pursuant to 28 U.S.C. § 2675(a), a jurisdictional prerequisite to their standing to seek FTCA damages. See, e.g., McNeil v. United States, 508 U.S. 106 (1993); Cadwalder v. United States, 45 F.3d 297 (9th Cir. 1995). Plaintiffs concede in their Reply those two proposed plaintiffs filed no administrative claims. Plaintiffs offer an [Amended Proposed] First Amended Complaint eliminating those claimants from the action. The government's objection is accordingly OVERRULED AS MOOT.

The United States also opposes the Motion on grounds the other six individuals have not alleged facts sufficient to establish they are proper loss of consortium claimants. Plaintiffs apparently concede the language of the [Proposed] First Amended Complaint fails to allege all elements necessary to state an actionable relationship with decedent[s] under New Mexico law. The [Amended Proposed] First Amended Complaint restates the relationship description at Paragraphs 22 and 25. As noted by Plaintiffs: "Moving plaintiffs have now met all the concerns and objections as stated by defendants by submitting the [Amended Proposed] First Amended Complaint." Reply 2:20-21.

For the forgoing reasons, IT IS HEREBY ORDERED the Motion is GRANTED.

Plaintiffs shall forthwith file as their First Amended Complaint their [Amended Proposed] First Amended Complaint.

IT IS SO ORDERED.

20070710

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