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Felipe and Sofia Soto v. City of Memphis

United States District Court, W.D. Tennessee, Western Division

October 11, 2017

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.



         Before 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.

         I. Introduction

         On 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, 2017.

         The 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).

         On or 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).

         Ultimately, 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).

         Plaintiffs 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).

         Based 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).

         II. Analysis

         As a 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 defendant).

         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).[1] 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)).

         The motion will be analyzed with reference to each of the proposed capacities in which Felipe and Sofia Soto propose to bring the instant suit.

         A. ...

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