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Grano v. Weese

United States District Court, D. New Mexico

September 18, 2017

MARC GRANO, Plaintiff,



         THIS MATTER is before the Court on Plaintiff-Intervenors' (“Intervenors”) Motion for Declaration Regarding Angie Griego's Rights and Status with Respect to Recovery Under the New Mexico Wrongful Death Act [Doc. 43], filed August 15, 2017. Defendants responded on August 28, 2017. [Doc. 45]. Angie Griego, who is not a party in this action, filed a response on August 31, 2017.[1] [Doc. 49]. Plaintiff did not respond. Intervenors replied on September 11, 2017. [Doc. 57]. Having considered the record, briefing, and relevant law, and being otherwise fully advised in the premises, the Court will DENY the Motion for Declaration.


         Plaintiff, the personal representative of the estate of Tristan Lucero (“decedent”), filed the instant action pursuant to the New Mexico Wrongful Death Act, NMSA 1978, § 41-2-1, alleging that Defendants' negligence caused the decedent's death and requesting compensatory and punitive damages. [Doc. 31]. Lawsuits filed under the Wrongful Death Act may be brought only by a personal representative, who in turn acts as trustee for the individual statutory beneficiaries. § 41-2-3. Intervenors, the biological father and stepmother of the decedent, sought to intervene in the action to challenge Plaintiff's appointment as personal representative and to assert independent claims on their own behalf against Defendants for loss of consortium. [Doc. 10]. The Court permitted them to intervene for the limited purpose of asserting individual loss-of-consortium claims against Defendants. [Doc. 36] at 13. The Court denied their request to intervene to challenge the appointment of Plaintiff as personal representative. Id. The Court found that their interest in the wrongful death claim was adequately represented by Plaintiff, who had “statutorily mandated responsibilities” to the beneficiaries of any wrongful death award, including Mr. Lucero. Id. at 9 (quoting Spoon v. Mata, 2014-NMCA-115, ¶ 19, 338 P.3d 113).

         Intervenors subsequently filed the instant motion seeking a declaratory judgment that Angie Griego, the decedent's biological mother, is not entitled to a share of the proceeds of any judgment obtained in Plaintiff's favor in this action. [Doc. 43]. The recovery scheme of the Wrongful Death Act provides that the decedent's parents recover if there is no surviving spouse or child. Id. at 4; see also § 41-2-3. However, a natural parent who has abandoned or failed to support his or her child may not be entitled to recovery. Intervenors argue that Ms. Griego abandoned the decedent and thus abdicated her right to recovery under § 41-2-3. They ask the Court to find the same and terminate her status as a statutory beneficiary.

         Defendants contend that the motion is not properly before the Court because requests for declaratory judgment must be brought through pleadings and not by motion. [Doc. 45] at 2. Defendants further contend that this request is beyond the scope of the limited purpose for which Intervenors were permitted to intervene. Id. Finally, they argue that the request is unripe and any disputes over the distribution of wrongful death proceeds to the statutory beneficiaries should be decided only if and when Plaintiff recovers such proceeds. Id. at 3. Ms. Griego adopts the arguments of Defendants and disputes Intervenors' contention that she is not entitled to recovery as a statutory beneficiary. [Doc. 49].

         The Declaratory Judgment Act

         The Declaratory Judgment Act provides, in pertinent part, that “[i]n a case of actual controversy within its jurisdiction . . ., any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C.§ 2201(a).[2]

         The Tenth Circuit has described “two separate hurdles”-one jurisdictional, and one prudential-that a party seeking a declaratory judgment must overcome. Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1240 (10th Cir. 2008). First, there must be an “actual controversy, ” i.e., a constitutionally cognizable case or controversy ripe for adjudication. Id. An actual controversy exists where “the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Columbian Fin. Corp. v. BancInsure, Inc., 650 F.3d 1372, 1376 (10th Cir. 2011) (quoting MedImmune, Inc. v. Genetech, Inc., 549 U.S. 118, 127 (2007)). Second, even if an actual controversy exists, courts have discretion in deciding whether to issue a declaratory judgment. Surefoot, 531 F.3d at 1240. Section 2201 provides “only that district courts ‘may'-not ‘must'-make a declaration on the merits of [the] controversy, ” considering a number of case-specific factors. Id.


         The Court will deny Intervenors' motion for declaratory judgment. As an initial matter, Intervenors' request is procedurally improper because it was sought via motion rather than through a proper pleading, as required by § 2201. Although courts may construe such motions as motions for summary judgment, the Court finds that it would be inappropriate to do so in this instance, particularly given that the motion seeks a judgment against Ms. Griego, who is not a party in this action. Moreover, even if the request for declaratory relief were properly pleaded against Ms. Griego, the Court finds that Intervenors have failed to show the existence of an actual controversy that is ripe for adjudication.

         Intervenors' motion is procedurally improper.

         The Court notes at the outset that Intervenors' motion is procedurally improper. The Declaratory Judgment Act provides that a court may grant declaratory relief where a party files “an appropriate pleading.” § 2201(a). A “pleading” under the Federal Rules of Civil Procedure is either a complaint or answer to it; an answer to a counterclaim designated as a counterclaim; an answer to a crossclaim; a third-party complaint or answer to it; or, if the court orders one, a reply to an answer. Fed.R.Civ.P. 7. The Federal Rules “govern the procedure for obtaining a declaratory judgment” under § 2201. Fed.R.Civ.P. 57.

         Courts and commentators have concluded that an action for declaratory judgment is “an ordinary civil action” subject to the Federal Rules. Int'l Bhd. of Teamsters v. E. Conference of Teamsters, 160 F.R.D. 452, 455-56 (S.D.N.Y. 1995) (internal quotation marks omitted) (quoting 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2768 (1983)). A party may bring an action for declaratory judgment but may not make a motion for declaratory judgment. Thomas v. Blue Cross & Blue Shield Ass'n, 594 F.3d 823, 830 (11th Cir. 2010); Kam-Ko Bio-Pharm Trading Co. Ltd-Australasia v. Mayne Pharma (USA) Inc., 560 F.3d 935, 943 (9th Cir. 2009); see also Redmond v. Alexander, 98 B.R. 557, 559 (D. Kan. 1989) (denying a “motion for declaratory judgment” where the moving party “cite[d] no authority whereby the court could find appropriate a request ...

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