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Cocke v. Whisler Aviation Inc.

United States District Court, D. Nebraska

December 27, 2019

JOHN HARTWELL COCKE, as Executor of the Estate of William Byron Cocke, Deceased; as Executor of the Estate of Catherine Crichton Cocke, Deceased; WILLIAM MARSTON BECKER, as Conservator of W.R.C., E.C.C., J.S.C, C.E.C., P.S.G.C., a Minor; VIRGINIA FRANCIS COCKE, as Guardian of W.R.C., E.C.C., J.S.C., C.E.C., P.S.G.C., a Minor; and JOHN HARTWELL COCKE, as Guardian of W.R.C., E.C.C., J.S.C., C.E.C., P.S.G.C., a Minor; Plaintiffs,
WHISLER AVIATION, INC., a Nebraska Corporation; and CENTRAL CYLINDER SERVICE, INC., a Nebraska Corporation; Defendants.



         This case comes before the Court on defendant Central Cylinder Service, Inc.'s Motion to Dismiss (Filing 10) pursuant to Fed.R.Civ.P. 12(b)(6). Defendant Central Cylinder Service, Inc. (“CCS”) requests dismissal of all the claims against it for failure to comport with the applicable statutes of limitations and for lack of subject-matter jurisdiction. The Court finds that Plaintiffs have properly stated claims against CCS. Accordingly, the Court denies CCS's Motion to Dismiss (Filing 10).

         I. BACKGROUND [1]

         Defendant CCS is a Nebraska corporation that does business in Nebraska. Filing 1 at 6, ¶ 12. At some point, CCS, inter alia, negligently overhauled, repaired, and inspected the engine of an airplane. Filing 1 at 21, ¶ 56. That airplane crashed on August 28, 2017, while carrying William Byron Cocke (“William”) and Catherine Crichton Cocke (“Catherine”) “as the result of a catastrophic in-flight engine failure” allegedly caused in part by CCS's negligent actions. Filing 1 at 7, ¶ 18. William and Catherine experienced physical injuries and died on August 28th as a result of the engine failure and crash. Filing 1 at 7, 24 ¶ 18, 60. Plaintiffs, the executor of William and Catherine's estates and the conservator and guardians for their children, filed this wrongful death and survival action on July 31, 2019. See generally Filing 1.

         As it relates to CCS, Plaintiffs alleged one count of wrongful death based on negligence, one count of wrongful death based on breach of warranty, one count of survival based on negligence, and one count of survival based on breach of warranty. Filing 1 at 21-28.[2] CCS filed its Motion to Dismiss, arguing the negligence and warranty actions were all filed beyond the relevant statutes of limitations and arguing the Court lacks subjected-matter jurisdiction. Filing 10.


         A. Standard of Review

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To satisfy this requirement, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d 915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

         In analyzing a motion to dismiss, the Court must “accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party, but [is] not bound to accept as true ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements' or legal conclusions couched as factual allegations.” McDonough v. Anoka Cty., 799 F.3d 931, 945 (8th Cir. 2015) (citations omitted) (quoting Ashcroft, 556 U.S. at 678). “When considering a Rule 12(b)(6) motion, the court generally must ignore materials outside the pleadings, but it may consider some materials that are part of the public record or do not contradict the complaint, as well as materials that are necessarily embraced by the pleadings.” Ashford v. Douglas Cty., 880 F.3d 990, 992 (8th Cir. 2018) (quoting Smithrud v. City of St. Paul, 746 F.3d 391, 395 (8th Cir. 2014)).

         B. Statute of Limitations[3]

         CCS argues that Plaintiffs have not pled when CCS's alleged negligent actions took place or when any express or implied warranties were breached, thus casting doubt that the claims were properly filed within the limitations period. Filing 11 at 2. Given the negligent behavior and breach of warranty underlying Plaintiffs' wrongful death and survival claims, CCS argues the relevant statutes of limitations are four years for negligence and either four or five years for contracts, depending on whether the contract is oral or written. See Id. However, CCS's argument that the statutes of limitations should be based upon tort and contract actions, respectively, ignores the underlying nature of the claims as wrongful death and survival claims. Upon analyzing the pleadings and relevant case law, the Court finds Plaintiffs' claims survive CCS's Motion to Dismiss based on the applicable statutes of limitation.

         Turning first to CCS's argument as it relates to Plaintiffs' wrongful death claims, Neb. Rev. Stat. § 30-809(1) (Reissue 2016)[4] provides in relevant part:

Whenever the death of a person . . . is caused by the wrongful act, neglect, or default of any person, company, or corporation, and the act, neglect, or default is such as would, if death had not ensued, have entitled the person injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company or corporation which, would have been liable if death had not ensued, is liable in an action for damages, notwithstanding the death of the person injured . . . .

         Every wrongful death action “shall be commenced within two years after the death of such person.” Neb. Rev. Stat. § 30-810 (Reissue 2016) (emphasis supplied); see alsoHealy v. Langdon, 245 Neb. 1, 3, 511 N.W.2d 498, 500 (1994) (“[T]he wrongful death limitation period begins to run at the date of death.”). “This two-year limitation applies regardless of the statute of limitations applicable to the ...

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