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Barber v. Cincinnati Bengals Inc.

filed: December 5, 1994.

DALE BARBER, GUARDIAN AD LITEM FOR CANDACE CRYTZER, BLAIZE BARBER, CHANDRA BARBER, AND ALISSA ALEXANDER, MINORS, PLAINTIFF-APPELLANT,
v.
CINCINNATI BENGALS, INC., A FOREIGN CORPORATION; LEWIS BILLUPS; JAMES BROOKS; CARL CARTER, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-93-00663-CRD. Carolyn R. Dimmick, District Judge, Presiding.

Before: Arthur L. Alarcon, Robert R. Beezer and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Alarcon; Dissent by Judge Kleinfeld.

Author: Alarcon

ALARCON, Circuit Judge

Dale Barber appeals from the dismissal of the action he filed on behalf of Victoria Crytzer's minor children for loss of parental consortium. The action was brought against the Cincinnati Bengals, Inc., and certain members of that football team (the Bengals). Crytzer filed an action against the Bengals on April 10, 1992 for damages for personal injuries and for recision of a release of her claims. The claim for loss of parental consortium arises from the injuries allegedly suffered by Crytzer.

On April 9, 1993, a jury returned a verdict in favor of the Bengals on Crytzer's recision claim. Although judgment was entered on Crytzer's recision claim pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, no judgment disposing of her personal injury claims has been entered. While Crytzer's appeal of the judgment on the recision claim was pending before this court, the district court dismissed her minor children's claims for loss of parental consortium. The district court ruled that Barber had failed to show that joinder with Crytzer's action was not feasible as required by Washington law. The court also determined that Crytzer's release extended to her minor children and extinguished their loss of parental consortium claim.

Barber contends that the district court erred in dismissing the minor children's loss of parental consortium action for failure to join because the allegations of the complaint demonstrate that it was not feasible to do so. Barber also contends that Crytzer's release of all claims, executed prior to the filing of the minor children's action, does not bar their independent action for loss of parental consortium under Washington law.

We vacate the district court's order and remand with instructions that the court consider whether, in view of the fact that no separate judgment dismissing Crytzer's personal injury claims has been entered, joinder or consolidation of this action with Crytzer's pending causes of action is warranted. We also hold that the district court erred in concluding that, under Washington law, Crytzer's release extended to and extinguished her minor children's loss of parental consortium claim.

I.

Barber commenced this action on May 10, 1993, in Washington state court on behalf of Crytzer's children for loss of parental consortium. The Bengals removed the action based on diversity jurisdiction. Thereafter, the Bengals filed a motion for dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that Barber's action had not been joined with Crytzer's action as required by Washington law. The Bengals also asserted that the release of all claims executed by Crytzer extends to her minor children and therefore extinguished any derivative claims that the children had against the Bengals.

In this action, Barber alleges, inter alia, that, as a result of the Bengals' tortious acts against Crytzer, her children have suffered a loss of parental consortium. The complaint also alleges that this matter could not have been joined with Crytzer's personal injury claims until the permanency and severity of her injuries were known.

In his opposition to the Bengals' motion to dismiss, Barber asserted that joinder was not feasible, and that Crytzer could not release the claims of her children for loss of parental consortium. In granting the Bengals' motion, the district court held that Barber's action should have been joined with Crytzer's action and that the release barred the children's claims. The district court also noted that the court in Crytzer's action "issued an order recognizing that plaintiff's pursuit of other claims was precluded and directing entry of judgment pursuant to Rule 54(b)." The district court further ruled that the language of the release upheld in Crytzer's action "bars all claims, which includes the plaintiff's claims ('heirs, executors, administrators, and assigns' are listed in the Release)."

We have read the Rule 54(b) order and judgment filed in Crytzer's action. The order directing entry of judgment pursuant to Rule 54(b) in Crytzer's action reads as follows:

As this matter was bifurcated so that the claims relating to the validity of the contract were tried first, and there remain other claims by Plaintiff, as well as counterclaims by Defendants; and as the jury has returned a verdict holding the contract valid and precluding Plaintiff's pursuit of other claims; and as the Court made the following rulings at the close of trial: Granted Defendants' Motion for Dismissal, pursuant to Rule 50(a), of Plaintiff's claims based on (1) ambiguity, (2) inadequate consideration, (3) violation of public policy, and (4) illegality ; there is no just reason for delay and the Clerk of the Court is hereby directed to enter judgment upon the verdict pursuant to Fed. R. Civ. P. 54(b).

(emphasis added).

The Bengals' April 6, 1993 Rule 50(a) motion for judgment as a matter of law was directed solely at the insufficiency of Crytzer's remaining legal theories in support of her recision claim. The Bengals did not request dismissal of the personal injury claims in this motion. The court's direction to the clerk to enter judgment referred to the jury's verdict on the factual issues regarding the validity of the release.

On the same date that the recision claim was dismissed, the clerk entered the court's judgment. It reads as follows: "It is ORDERED AND ADJUDGED by jury verdict that the contract between plaintiff and defendants is valid." In reviewing the record and the docket entries, we found no reference to a dismissal of Crytzer's personal injury claims. Moreover, no separate judgment disposing of Crytzer's personal injury claims has been entered as required by Rule 58 of the Federal Rules of Civil Procedure. Rule 58 provides in pertinent part that "every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a)." Fed. R. Civ. Pro. 58. Thus, until the court directs the clerk to enter judgment on the personal injury claims, they remain unresolved in the Crytzer matter.

In dismissing the loss of parental consortium claims in this matter, the district court was apparently misled into the Conclusion that a final judgment dismissing Crytzer's personal injury claims had been entered. The Bengals argued before the district court that Barber's "offer to join the earlier lawsuit after final judgment and appeal is contrary to both state and federal law." (emphasis added). The Bengals relied on Sohappy v. Smith, 529 F.2d 570, 574 (9th Cir. 1976). In Sohappy, we affirmed the district court's order denying a post-judgment motion for leave to intervene as a matter of right. Id. at 574. We held that the motion to intervene was untimely. We concluded in Sohappy that appellants had "not succeeded in showing any extraordinary or unusual circumstances that would justify their late intrusion into this suit." Id. Sohappy is not controlling because, contrary to the Bengals' representation, no final judgment has been entered dismissing Crytzer's personal injury claims.

II.

Barber contends that the district court erred in granting the Bengals' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A dismissal for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is reviewed de novo. Oscar v. University Students Co-Op. Ass'n, 965 F.2d 783, 785 (9th Cir.) (en banc), cert. denied, 121 L. Ed. 2d 581, 113 S. Ct. 655 (1992). Jurisdiction in this matter is based on diversity and Washington substantive law governs. West v. State Farm Fire and Casualty Co., 868 F.2d 348, 350 (9th Cir. 1989) (citation omitted). A district court's interpretation of state law is also reviewed de novo. Id. (citation omitted).

Washington recognizes an independent cause of action for loss of parental consortium. Ueland v. Reynold Metals Co., 691 P.2d 190, 195 (Wash. 1984). In Ueland, the Supreme Court of Washington held that "a child has an independent cause of action for the loss of the love, care, companionship and guidance of a parent tortiously injured by a third party." Id. The court also stated that the "separate [loss of] consortium claim must be joined with the parent's underlying claim unless the child can show ...


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