2:08-cv-04704
E.D. La.Dec 5, 2012Background
- This case arises from a fatal 2005 electrocution in Iraq during a Humvee cleaning when a generator allegedly provided by Arkel was improperly grounded.
- Plaintiffs Larraine McGee and Patrick Everett sue Arkel (and previously KBR entities) for wrongful death and related damages, later focusing on Iraqi-law claims after a Fifth Circuit ruling.
- The Fifth Circuit reversed a Louisiana-law summary judgment, holding Iraqi law governs the tort merits, prompting Arkel to file a Rule 12(b)(6) motion to dismiss.
- Plaintiffs filed a First Amended Complaint; Arkel argues Iraqi law bars certain damages and that the Estate lacks standing, seeking dismissal of those claims.
- The court ultimately denied in part and granted in part Arkel’s motion, dismissed certain estate/ pre-death claims, and denied substitution under Rule 17(a)(3).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Iraqi law permits moral-damages claims by relatives for death of Christopher Everett | McGee/Everett contend Article 205(2) allows relatives to recover personal moral damages | Arkel argues Iraqi law does not recognize such damages or pass rights to heirs | Yes; Plaintiffs may pursue personal moral-damages claims under Iraqi law |
| Whether the decedent’s pre-death injuries can be claimed by the Estate or relatives under Iraqi law | Plaintiffs claim Article 203/202 authorize dependents to recover for pre-death injuries | Experts opine decedent's right to compensation extinguishes pre-death claims | No; estate/relatives' pre-death injury claims are dismissed with prejudice |
| Whether Kyle Everett may be substituted as real party in interest under Rule 17(a)(3) | Plaintiffs seek substitution of Kyle Everett for the Estate under Rule 17(a)(3) | Substitution inappropriate; Estate never properly named; issues require amendment rules | Denied; substitution under Rule 17(a)(3) not appropriate; potential joinder/amendment under Rules 15/20 discussed |
| Whether the case should be treated as substitution/joinder rather than Rule 17 substitution | Plaintiffs argue Rule 17(a)(3) applies to substitution | Rule 17(a)(3) does not fit the procedural posture; joinder/amendment apply | Denied; court treated issue as joinder/amendment path, not substitution under Rule 17 |
Key Cases Cited
- McGee v. Arkel Int’l LLC, 671 F.3d 539 (5th Cir. 2012) (Iraqi law governs tort claims; discusses Article 205(2))
- King v. Dogan, 31 F.3d 344 (5th Cir. 1994) (amended pleading; incorporation rules; amended complaint supersedes original)
- Ashcroft v. Iqbal, 556 U.S. 662 (S. Ct. 2009) (plausibility standard for Rule 12(b)(6) complaints)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (S. Ct. 2007) (heightened pleading standard for plausibility)