HOLZENDORF

v.

STAR VAN SYSTEMS, INC.

THIS CAUSE is before the Court on Defendants’ Opposed Motion to Add Party (“Motion”) (Doc. 12) and Plaintiff’s Response thereto (“Response”) (Doc. 15). For the reasons stated herein, the Motion is DENIED. On June³, 2021, Richard Holzendorf (“Mr. Holzendorf”), individually, and as Personal Representative¹ of the Estate of his deceased son, Richard Lavon Holzendorf (decedent), filed this wrongful death action in this Court. (Doc. 1.) This action arises out of an incident that occurred in Nassau County, Florida, on January 22, 2021, in which the decedent’s vehicle collided with an 18-wheeler operated and/or maintained by Defendants, Zeljko

1. Upon information and belief, the [d]ecedent has a natural born child named Richard Lavon Holzendorf, Jr. (the “[d]ecedent’s [c]hild”). 2. Cheryl Cobb is the mother of the [d]ecedent’s [c]hild and the owner of the vehicle in which the [d]ecedent was traveling at the time of his death. 3. Upon information and belief, the [d]ecedent’s [c]hild has an interest relating to the subject of this action and is so situated that disposing of the action in his absence may as a practical matter impair or impede the ability to protect his interests or leave defendants subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations because of the interest.

4. As such, under the Federal Rules of Civil Procedure,

the [d]ecedent’s [c]hild should be added to this action as an involuntary plaintiff.

5. Moreover, Plaintiff, Richard Holzendorf, should be removed as the Person[al] Representative of the [d]ecedent’s Estate.

(Id. at 9-10.) On August 10, 2021, Defendants filed the present Motion, pursuant to Rule 19(a)(1)(A),² seeking to add the decedent’s child as a necessary party.

12. As such, under the Federal Rules of Civil Procedure, the

[d]ecedent’s [c]hild should be added to this action as an involuntary plaintiff. 13. Moreover, Plaintiff, Richard Holzendorf, should be removed as the Person[al] Representative of the [d]ecedent’s Estate.

(Id. at 2-3.) The Motion also seeks an order for “a paternity test to determine if the aforementioned minor is the rightful beneficiary of the [d]ecedent and, if so, join the minor and his parent/guardian as a party to this lawsuit.” (Id. at 3.) Plaintiff opposes the Motion and denies that the decedent “had a natural-born child named Richard Lavon Holzendorf, Jr.” (Doc. 15 at 3.) Plaintiff states that Defendants have failed to attach a birth certificate, record, or any other evidence to support their Motion. (Id. at 4.) According to a February 18, 2021 email from Defendants’ counsel to Plaintiff’s counsel, which Plaintiff attaches to his Response, the decedent is not listed on the birth certificate of any of Ms. Cobb’s six children. (Id. at 5, 15 (“Ms. Cobb informed me that the decedent is the father of one of her children but that he must be joined as a party if . . . in that person’s absence, the court cannot accord complete relief among existing parties.” is not on the birth certificate.”).³) According to another email from Defendants’ counsel, dated February 9, 2021, which is also attached to the

Response, the child’s name was “Tamer Cobb.” (Id. at 4, 12.) When Plaintiff’s counsel requested, by an email dated August 8, 2021, “all documents/evidence” in Defendants’ possession to support their position that the decedent had a child, defense counsel responded that he did not have any documents. (Id. at 6, 16.) In the Response, Plaintiff states that, upon information and belief, Ms. Cobb has no children by the name of Richard Holzendorf, Jr. or Tamer Cobb. (Id. at 5.) Plaintiff contends that the decedent was “unmarried and childless,” but even if he had a child, “the child could not be added as a party to this litigation for lack of standing,” because only the personal representative has standing to pursue a wrongful death action. (Id. at 3.) Plaintiff argues that defense counsel’s representations regarding the child are likely sanctionable under Rule 11(b)(3), Fed.R.Civ.P., because the rule requires representations made to the Court to have “evidentiary support or . . . [to] likely have

Fed.R.Civ.P. 17(a)(1)).) Plaintiff adds that: There is no reason the relationship of the natural child to the wrongful death victim cannot simply be alleged by Defendant[s] and proved up in the wrongful death action. . . . Finally, in his ad damnum clause, counsel for Defendant[s] prays for relief in the form of a DNA test to be performed on a minor child, the Decedent, and/or the Decedent’s relatives. Due to the fact that counsel for Defendant[s] cites no law, statute, or evidence to support his request for medical testing, Plaintiff prays that this request is denied.

(Id. at 7-9.) Upon consideration of the parties’ submissions, the Motion is due to be denied. First, Defendants have not provided any record or other evidence pertaining to the child’s relationship to the decedent. Defense counsel seems to admit that the decedent is not listed on the birth certificate of any of Ms. Cobb’s children. Also, the uncertainty with the child’s name and the fact that Ms. Cobb’s law firm withdrew from pursuing a claim further counsel against granting the Motion. Additionally, at this stage of the proceedings, it does not seem that the Court should order a paternity test, particularly since Defendants have not cited any legal authority to that effect. Moreover, even assuming that the decedent had a child with Ms. Cobb,

the child cannot be added as a party to this action, even if claims are brought for his benefit, because, pursuant to Fla. Stat. § 768.20,4 “the personal representative is the only party with standing to bring a wrongful death suit on behalf of the estate and the survivors.” Wiggins v. Estate of Wright, 850

So. 2d 444, 446 (Fla. 2003); see also Kadlecik v. Haim, 79 So. 3d 892, 893 (Fla. Dist. Ct. App. 2012) (stating that “the personal representative has exclusive authority to conduct litigation” on behalf of the estate and the decedent’s survivors); In re Estate of Catapane, 759 So. 2d 9, 10 (Fla. Dist. Ct. App. 2000) (same); Morgan v. Am. Bankers Life Assurance Co. of Fla., 605 So. 2d 104, 104 (Fla. Dist. Ct. App. 1992) (same). Given that Mr. Holzendorf was duly appointed as an administrator of the decedent’s Estate, Defendants have not shown a valid reason for his removal as a party Plaintiff.

Also, while “[t]he survivors may not bring separate legal actions and are required to participate in the single legal action filed by the estate,” Heiston v. Schwartz & Zonas, LLP, 221 So. 3d 1268, 1271 (Fla. Dist. Ct. App. 2017) (citing Wiggins, 850 So. 2d at 446), here, it has not been shown that Ms.

; MONTE C. RICHARDSON

UNITED STATES MAGISTRATE JUDGE

Copies to: Counsel of Record