United States District Court, W.D. Tennessee, Western Division
FELIPE AND SOFIA SOTO, as parents, next of kin of LUIS SOTO, deceased, for the benefit of K.S., a minor, Plaintiffs,
CITY OF MEMPHIS, MICHAEL RAWLINGS, in his official capacity as the Police Director of the Memphis Police Department, OFFICER MARSHALL SMITH, individually and in his official capacity as a Police Officer with the Memphis Police Department, Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO
CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE
the Court is Defendants' City of Memphis
(“City”), Michael Rawlings
(“Rawlings”), and Officer Marshall Smith
(“Smith”), in his official capacity's
(collectively “Defendants”), Motion to Dismiss
(Docket Entry “D.E.” #30”) and Defendant
Smith, in his individual capacity's, Motion to Join the
City Defendants' Motion to Dismiss (D.E. #20). This
matter is before the undersigned pursuant to 28 U.S.C. §
636, Rule 73(b) of the Federal Rules of Civil Procedure, and
the consent of the parties. (D.E. #13). At the outset,
Defendant Smith's Motion to Join the City Defendants'
Motion to Dismiss is well-taken and is GRANTED. Thus, the
Motion to Dismiss shall be considered as one filed by all
Defendants as named in this suit.
April 7, 2017, Plaintiffs Felipe and Sofia Soto (collectively
“Plaintiffs”) filed a Complaint in the Circuit
Court of Tennessee for the Thirtieth Judicial District at
Memphis. The Complaint was removed to this Court on May 10,
allegations contained in the Complaint surround the death of
Luis Soto, Plaintiffs' son, who was killed on Sunday,
April 10, 2016. (Compl. ¶ 1). Plaintiffs' allege
that their son, Luis Soto, was divorced from Karen Salinas
(“Salinas”) and shared joint custody of their
minor daughter, K.S. (Id. ¶ 7). Salinas was
engaged to marry Smith. (Id. ¶ 9). Luis Soto,
who lived with Plaintiffs, had visitation with K.S. every
other weekend with Salinas dropping K.S. off on Friday
mornings and picking her up at the Soto residence on the
following Monday. (Id. ¶ 12). Many times,
however, K.S. would stay with Luis Soto for longer than
Friday through Monday. (Id. ¶ 13).
about April 10, 2016, Salinas asked Luis Soto to bring K.S.
to her that day instead of picking her up on Monday.
(Id. ¶ 15). Luis Soto communicated to Salinas
that he and K.S. had plans to go to a birthday party that
evening and asked Salinas to pick K.S. up the next morning as
planned. (Id. ¶ 17). Plaintiffs allege that
Salinas expressed frustration to Smith and others concerning
Luis Soto's refusal to bring K.S. to her that evening.
(Id. ¶ 19). Plaintiffs allege that Smith and
Luis Soto exchanged telephone communications and text
messages that day, of which Salinas was aware. (Id.
¶ 20). Plaintiffs allege that Salinas was aware that
Smith intended to intimidate and, if necessary, harm Luis
Soto. (Id. ¶ 21).
Luis Soto and Salinas agreed to exchange custody of K.S. that
evening after the birthday party. (Id. ¶ 24).
Salinas refused to pick up K.S. at the Soto residence on
April 10, 2016. (Id. ¶ 22). Instead, Salinas
requested that Luis Soto bring K.S. to the Shell/Flash Market
located at 1781 Getwell Road, Memphis, Tennessee.
(Id. ¶ 23). Luis Soto arrived with K.S. and
parked in a parking space, and Salinas and Smith parked
behind Luis Soto's vehicle, blocking him in.
(Id. ¶ 26). Within minutes of Luis Soto getting
K.S. out of the car and handing her over to Salinas, Smith
shot Luis Soto four times. (Id. ¶¶ 27-28).
Plaintiffs aver that the gunshots were either
“allegedly to comply with a police officer's
commands or without warning.” (Id. ¶ 50).
Luis Soto died as a result of the gunshot wounds.
(Id. ¶¶ 30-31).
allege that the policies, practices, customs, training and
supervision of the City and the Memphis Police Department
(“MPD”) were the driving force behind the
deprivation of constitutional rights sustained by Luis Soto.
(Id. ¶¶ 34, 39-40). Plaintiffs allege that
the City and Rawlings have created a custom, pattern, and
practice of exonerating its officers who use excessive force.
(Id. ¶ 36). Plaintiffs allege that Luis Soto
was the fourth victim of a police shooting in the first four
months of 2016 and that the MPD fails to thoroughly
investigate police-related shootings. (Id.
¶¶ 37-38). Plaintiffs further allege that the City
and Rawlings were aware specifically of Smith's history
of violating MPD policies and violating the rights of
citizens of the City yet still provided him with the weapon
that may have killed Luis Soto. (Id. ¶ 41).
upon the foregoing allegations, Plaintiffs assert causes of
action under the following: 42 U.S.C. § 1983
(“Section 1983”) (Id. ¶¶
44-71); and, the Tennessee Governmental Tort Liability Act,
Tennessee Code Annotated § 29-20-101, et seq.
(“GTLA”) (Id. ¶¶ 72-88).
threshold issue, Defendants' Motion to Dismiss asserts
that Plaintiffs, as parents of the decedent who was survived
by a minor child, K.S., lack standing to bring this cause of
action. Plaintiffs have brought this suit in three
capacities: (1) as parents; (2) as next of kin of Luis Soto,
deceased; and (3) for the benefit of K.S., minor. Although
Defendants referred to the issue as one of standing, the
Court finds that it the motion also raises questions with
regard to capacity to sue. Tri-Med Finance Co. v.
National Century Fin. Enterprises, Inc., 2000 WL 282445,
*4 (6th Cir. Mar. 6, 2000); Firestone v. Galbreath,
976 F.2d 279, 282 (6th Cir. 1992); Glickstein v. Sun
Bank/Miami N.A., 922 F.2d 666, 670 (11th Cir. 1991);
Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn.
1976); see also DXE Corp. Liquidating Trust v. L3 Comm.
Corp., No. 3:12-cv-98, 2014 WL 3945892, at *3 (S.D.Ohio
Aug. 12, 2014); Hill v. Martinez, 87 F.Supp.2d 1115,
1122 (D. Colo. Feb. 11, 2000); Edens v. Laubach, 838
F.Supp. 510, 513-14 (D. Kan. 1993). The difference between
capacity to sue and standing is that the former relates to
the right to come into court, while the latter relates to the
right to relief. Id. (citing Citizens Concerned
for Separation of Church and State v. The City and County of
Denver, 628 F.2d 1289, 1300 (10th Cir. 1980)); see
also 6A Charles A. Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice and Procedure § 1542
at 327 (1990) (capacity is “a party's personal
right to litigate in federal court”); Allen v.
Wright, 468 U.S. 737 (1984) (standing and the right to
relief are tied to the determination of whether the plaintiff
can show an injury in fact traceable to the conduct of the
Sixth Circuit has held that challenging the lack of capacity
to sue is governed by Rule 9 of the Federal Rules of Civil
Procedure. Fed.R.Civ.P. 9(a)(1)-(2); Miller v. City of
Cincinnati, 970 F.Supp.2d 534, 540-541 (S.D. Ohio May 9,
2012); Theresa Srock v. United States, 2006 WL
2460769, No. 04-CV-72788-DT, at *2-*5 (E.D. Mich. Aug. 23,
2006). However, in federal courts, a motion under
Rule 12(b)(6) for failure to state a claim upon which relief
may be granted may properly be utilized to assert a defense
of lack of capacity to sue. Theresa Srock v. United
States, No. 04-CV-72788-DT, 2006 WL 2460769, at *4
(E.D.Mich. Aug. 23, 2006) (citing NAACP Labor Comm. v.
Laborer's Int'l Union of N. Amer., 902 F.Supp.
688, 699 (W.D.Va. 1993); see also Capital City Energy
Group, Inc. v. Kelley Drye & Warren LLP, No.
2:11-cv-00207, 2011 WL 5175617, at *2 (quoting Weiner v.
Winters, 50 F.R.D. 306, 307-08 (S.D.N.Y. 1970)).
motion will be analyzed with reference to each of the
proposed capacities in which Felipe and Sofia Soto propose to
bring the instant suit.