West Virginia Record

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Judge, frustrated with attorney, allows complaint to be amended

By John O'Brien | Dec 31, 2012

HUNTINGTON – Though he chastised a plaintiffs attorney for failing to observe rules of procedure and deadline, U.S. District Judge Robert Chambers is nonetheless allowing the attorney’s clients to amend their complaint.

Fields’ decision came Dec. 14 in a lawsuit brought against Norfolk Southern Railway over the 2008 death of Samantha Fields, whose automobile collided with a train owned and operated by the defendant.

Plaintiffs in the lawsuit are Samantha’s two children Abbie and Zachary. They are represented by Donald Jarrell of Wayne.

“Regrettably, Plaintiffs’ pursuit of their case to date has been characterized by inattention to detail and failure to observe applicable rules of procedure and deadlines,” Chambers wrote.

“Plaintiffs admittedly erred in identifying Defendant’s proper name in the complaint; Plaintiffs were late in effecting service of process upon Defendant; and Plaintiffs were late in filing their response to Defendant’s motion to dismiss.

“Finally, Plaintiffs inappropriately embedded a motion to amend their complaint in their late-filed response. Despite these errors… the court will exercise its discretion as provided under the Rules of Civil Procedure.

“Plaintiffs’ counsel, however, will be strictly held to all applicable rules of procedure and filing deadlines in this case going forward.”

Chambers’ dismissed Abbie’s and Zachary’s loss of parental consortium claims because they did not make a wrongful death claim.

“To permit Plaintiffs to assert derivative claims for loss of parental consortium independent of an action for the underlying death of the parent would be to wholly disregard the West Virginia Supreme Court of Appeals’ thorough analysis and conclusion that consortium claims must be joined with the injured parent’s action against the alleged tortfeasor,” Chambers wrote.

Chambers said the amended complaint will identify the defendant by its proper name, but do not have leave to change any other portions of its original complaint. Abbie is also making a claim for negligence on the part of Norfolk Southern Railway as to her injuries. She was in the car at the time of the accident.

The original complaint names Norfolk and Southern Railway Company and Norfolk and Southern Corporation, entities that do not exist. That wasn’t enough to dismiss the entire complaint, Chambers wrote.

“Plaintiffs had already initiated an internal claims process with Norfolk Southern when this case was originally filed, and thus Defendant can hardly claim surprise that Plaintiffs would have brought an action against it,” Chambers wrote.

West Virginia law prohibits the dismissal of an action because of a misnomer, Chambers added in a footnote.

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