Opinion
CIV. NO. 99-3179 SECTION "K"(2).
April 5, 2000
Before the Court is "Rule 12 Motions to Dismiss on behalf of Eckerd Corporation" which were taken on the papers. The Court has reviewed the pleadings, memoranda and the relevant law and finds that the motion must be granted in part and denied in part.
The first ground for dismissal urged by Eckerd Corporation ("Eckerd") is the lack of procedural capacity as there is no person as "Succession of Frank Gear". However, plaintiff has sought leave in his opposition to this motion to have filed an amended complaint which substitute Frederick P. Heisler as the plaintiff in these proceedings as the succession representative, duly appointed and qualified as executor on January 29, 1999. As such, the Court will grant leave for the Amended Complaint to be filed and deny Eckerd's motion in this regard as moot.
As to the motion to dismiss based on there being no survival claim, this basis is without merit. Plaintiff has averred that there is no surviving spouse, no children, descendants or ascendants. As such, a succession representative as is present here may bring a survival claim, La. Civ. Code art. 2315.1(B).
Finally, the motion to dismiss the wrongful death claim is meritorious as there such a cause of action does not inure to a succession representative. La. Civ. Code art. 2315.2. Thus, this cause of action will be dismissed from this suit. Tudor v. Connelly, 514 F. Supp. 181 (E.D.La. 1981). Accordingly,
IT IS ORDERED that leave is GRANTED for the Amended Complaint to be filed in this matter.
IT IS FURTHER ORDERED that the motion to dismiss is DENIED with respect to procedural capacity and survival actions; however, it is GRANTED with respect to plaintiffs claim for wrongful death action.