The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
An order issued on January 11, 2012, which required the parties to file briefs concerning Defendants' contention, raised in their trial brief, that Plaintiff lacks standing to assert a Fourth Amendment survival claim on behalf of the decedent.
Defendants filed a "Supplemental Trial Brief Regarding Standing" on January 17, 2012. (ECF No. 79.) In essence, Defendants argue Plaintiff's Fourth Amendment survival claim should be dismissed because Plaintiff has not filed "the affidavit necessary under California law to commence a survival action as a decedent's successor in interest[;]" Plaintiff cannot cure her failure to file the necessary affidavit because she is now time barred by the applicable statute of limitations and California Government Code section 945.6; and even if she were given the opportunity to file the necessary affidavit, she cannot satisfy the statutory standing requirements "because decedent's father is also a beneficiary under state law but is not a party to this action." (Def.'s Supp. Trial Brief ("Def.'s Brief") 3:23-27, 4:2-4, 4:8-21, 4:24-27, 6:9-12.) Defendants further argue that Plaintiff lacks "standing and/or cannot maintain her [state law] wrongful death [claim] without decedent's father as a party to this action." Id. at 5:13-15.
Plaintiff addressed the standing issue in a filing captioned "Plaintiff's Reply to Defendants' Motions in Limine Opposition/Strike Motion," which was filed on January 17, 2012. (ECF No. 80.) Plaintiff argues, "the standing issue ha[s] been waived by defendants' failure to raise it during their pretrial statements and the prior two years of the pendency of this lawsuit." (Pl.'s Reply to Defs.' Mots. In Limine ("Pl.'s Brief") 1:18-19.) Plaintiff further argues that "defendants should be estopped from raising [the standing issue] at this late stage a few weeks before trial" "for their strategic or negligent withholding of this argument[.]" Id. at 1:22-23.
Defendants' arguments are addressed in turn below.
A. Plaintiff's Fourth Amendment Survival Claim
Defendants argue "Plaintiff's survivor claim must be dismissed for lack of standing" under California Code of Civil Procedure sections 377.30 and 377.32. (Defs.' Brief 2:19-20, 5:11.)
Although "[Defendants] use the term 'standing,' they are not referring to 'standing' in the constitutional sense of the word. Instead, they are referring to standing in terms of Plaintiff's 'capacity to sue' on behalf of Decedent's estate." Johnson v. Cal. Dept. of Corr. & Rehab., 2009 WL 2425073, at *4 (E.D. Cal. Aug. 7, 2009)(citation omitted); see also Estate of Burkhart v. United States, No. C 07-5467 PJH, 2008 WL 4067429, at *10 (N.D. Cal. Aug. 26, 2008)("The question whether [Plaintiff] has the ability to assert claims on [the decedent's behalf under California's survival statute] involves the determination whether she has the capacity to bring suit as a representative.") "'The question of a litigant's capacity or right to sue or to be sued generally does not affect the subject matter jurisdiction of the district court.'" De Saracho v. Custom Food Machinery, Inc., 206 F.3d 874, 878 n.4 (9th Cir. 2000)(quoting Summers v. Interstate Tractor & Equip. Co., 466 F.2d 42, 50 (9th Cir. 1972)) "Therefore, unless the objection is properly raised, the court may properly adjudicate the case notwithstanding this defect." Estate of Burkhart, 2008 WL 4067429, at *10 (citation omitted); see also De Saracho, 206 F.3d at 878 (stating, "an objection to a party's capacity . . . can be analogized to an affirmative defense and treated as waived if not asserted by motion or responsive pleading[.]").
In this case, Defendants did not raise Plaintiff's capacity to sue on the Fourth Amendment survival claim in their Answer or in a pretrial motion, and "[a]ll law and motion . . . [was ordered to have been] completed by July 6, 2011." (Status (Pretrial Scheduling) Order 2:12, ECF No. 32.) Further, Defendants have not shown that this issue was not waived by their failure to timely raise it. For the stated reasons, Defendants' "standing" arguments concerning Plaintiff's Fourth Amendment survival claim are disregarded.
B. Plaintiff's Wrongful Death Claim
Defendants contend for the first time in their Supplemental Trial Brief Regarding Standing that "Plaintiff [also lacks] standing and/or cannot maintain her wrongful death [claim] without decedent's father as a party[,]" arguing "California's wrongful death statute[,] California Code of Civil Procedure section 377.60[,] has been interpreted to authorize only a single action, in which all the decedent's heirs must join." (Defs.' Brief 5:13-19.) Defendants further argue: "[o]mitted heirs . . . are 'necessary parties,' and plaintiff heirs have a mandatory duty to join all known omitted heirs in the 'single action' for wrongful death. If an heir refuses to participate in the suit as a plaintiff, he or she may be named as a defendant . . . so that all heirs are before the court in the same action." Id. 5:20-6:1.
Defendants' contentions do not concern Plaintiff's "standing" to assert a wrongful death claim, since Defendants have not contested Plaintiff's standing under section 377.60 to bring this claim in her capacity as the parent of a decent without children. See Chavez v. Carpenter, 91 Cal. App. 4th 1433, 1439 (2001)("The first subdivision of the wrongful death statute gives standing to those persons who would be entitled to the property of the decedent by intestate succession, but only if there is no surviving issue of the decedent. Under the laws of intestate succession, a decedent's parents become heirs where there is no surviving issue.") Instead, the crux of Defendants' argument challenges whether Plaintiff has the ability to maintain her wrongful death claim without having the decedent's father joined as a party in this action.
Rule 19 governs the compulsory joinder of parties, and decision on a joinder issue involves a "two-part analysis." Washington v. Daley, 173 F.3d 1158, 1167 (9th Cir. 1999). "First, [the court must] determine whether an absent party is 'necessary.' If the absent party is necessary and cannot be joined, [the court must] then decide whether the absent party is 'indispensable.'" Id. (citations omitted).
The terms "necessary" and "indispensable" are terms of art in Rule 19 jurisprudence: "Necessary" refers to a party who should be "[j]oined [under Rule 19(a)] if [f]easible"; "Indispensable" refers to a party whose participation is so important to the resolution of the case that, if the joinder ...