The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants' U-Haul International, Inc. and U-Haul Co. of Florida, Inc. ("U-Haul Defendants") motions to dismiss Plaintiffs'original complaint  and Plaintiffs' amended complaint . For the reasons stated below, the motion to dismiss the amended complaint  is granted and the motion to dismiss the original complaint  is stricken as moot.
On April 21, 2006, a rented U-Haul moving truck driven by an Illinois citizen, William Geary, crossed a highway median in Kentucky and crashed into a tractor-trailer driven by a Texas citizen, Gregorio Trevino, Jr. As a result of the collision, both vehicles caught fire and three people were killed, including both drivers.
Mr. Trevino, Jr. was survived by his spouse, Ida Trevino, his two minor children, Sara and Angela Trevino, and his parents, Gregorio and Oralia Trevino. At some time in 2007, before any wrongful death action was filed arising out of the 2006 accident, letters of office were filed in Texas probate court appointing Ida Trevino as executor of the estate of her late husband, Gregorio Trevino, Jr. This case is one of multiple actions that have been brought on behalf of Mr. Trevino Jr.' s survivors, all of whom are residents of Texas. Because the procedural history of those actions is relevant to the disposition of the pending motion, the Court will set forth that history in some detail below.
On January 24, 2008, Gregorio Trevino, Sr. brought a lawsuit in the Circuit Court of Cook County (No. 08-L-0841) against U-Haul International, Inc., U-Haul Company of Illinois, Inc., and Roger D. Geary, who is William Geary' s step-son and a citizen of Tennessee. That lawsuit asserted claims on behalf of Mr. Trevino, Jr.' s parents only and attached an order appointing Janet M. Deutsch as "Special Administrator to serve as Defendant for all purposes relating to this lawsuit." On March 10, 2008, the U-Haul Defendants removed Mr. Trevino, Sr.' s lawsuit to this Court. Plaintiff did not seek remand, thereby consenting to have the case heard in federal court. On May 6, 2008, with leave of Court, Plaintiff filed an amended complaint  in order to allege a cause of action under the Texas Wrongful Death Act (Tex. Civ. Prac. & Rem. Code § 71.004), instead of the Illinois Wrongful Death Act. The amended lawsuit named both of Mr. Trevino, Jr.' s parents as Plaintiffs.
On April 10, 2008, Ida Trevino, in her individual capacity and as Special Administrator of her deceased husband's estate, and as the representative of the minor children, brought a lawsuit in the Circuit Court of Cook County (No. 08-L-3922) against various U-Haul entities, General Motors Corporation, and Mechelle Walsh, as Special Administrator of the Estate of William Geary. Ms. Trevino' s initial lawsuit consisted of fifteen counts and sought relief under theories of strict liability, negligence, and willful and wanton conduct under the Illinois Wrongful Death Act, the Survival Act, and the Family Expense Act. On April 14, 2008, before any local Defendants were served with the lawsuit, U-Haul International, Inc. removed the lawsuit to federal court, where it was assigned to Judge Gettleman as Case No. 08-cv-2120. After amending her complaint as of right on April 16, 2008, to add additional U-Haul entities as Defendants, Ms. Trevino voluntarily dismissed the case pursuant to Fed. R. Civ. P. 41(a)(1) on April 17, 2008.
The following day, April 18, 2008, Ms. Trevino filed a second complaint in the Circuit Court of Cook County (No. 08-L-4269), asserting virtually the same claims as in her amended complaint in the prior lawsuit, but appointing Jeffrey Crook in place of Mechelle Walsh as Special Administrator to serve as a Defendant on behalf of William Geary' s estate. On that same day, Ms. Trevino served Mr. Crook -- who is deemed to be a local defendant because he stands in the shoes of an Illinois citizen, William Geary -- and Mr. Crook filed a responsive pleading. On April 21, 2008, U-Haul International, Inc. removed Ms. Trevino's second lawsuit to federal court, where again it was assigned to Judge Gettleman as Case No. 08-cv-2255. This Court subsequently granted the U-Haul Defendants' motion to reassign that case to this Court as related to the lawsuit filed by Mr. Trevino, Jr.' s parents (No. 08-cv-1409), and on November 18, 2008, issued an order granting Ms. Trevino' s motion to remand Case No. 08-cv-2255 to the Circuit Court of Cook County.
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1965, 1973 n. 14). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 127 S.Ct. at 1969. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).
As noted above, this is one of two current lawsuits brought by surviving members of the family of Gregorio Trevino, Jr. One of the lawsuits was brought by Mr. Trevino, Jr.' s spouse, Ida Trevino, on behalf of herself and their children. That lawsuit seeks recovery under multiple theories, including pursuant to the Illinois wrongful death statute. It originally was filed in Illinois state court, was removed to this Court, and then remanded to state court for the reasons stated in this Court' s November 18, 2008 memorandum opinion and order. This lawsuit, by contrast, was brought by Mr. Trevino, Jr.' s parents, and seeks recovery under the Texas wrongful death statute. Like the lawsuit brought by Ida Trevino, this lawsuit began in state court and was removed to this Court. However, the parties now agree that there is no procedural mechanism for remanding this case; it must remain in federal court for resolution.
The parties agree that both the Illinois and Texas wrongful death statutes contemplate a single lawsuit on behalf of all potential beneficiaries of the action. Recognizing that clearly stated policy preference, the Court convened a status hearing in October 2008 and requested supplemental briefing [49, 50] to explore whether consolidation of the cases was feasible. In view of Ida Trevino' s desire and right to litigate her action in Illinois state court and the inability to remand the action brought by Gregorio Trevino, Sr. and Oralia Trevino to state court, the Court and the parties concluded that consolidation or joinder of the actions was not possible. Accordingly, the Court must decide Defendant' s motion to dismiss , which presents the issue of whether the separate action by the parents may proceed under Texas law.
One of the complicating factors is that Illinois and Texas law differ in regard to the scope of potential beneficiaries under the states'wrongful death statutes. Under Illinois law, the parents of the deceased have no right to recovery in a wrongful death action if the deceased leaves a surviving spouse and/or children. See, e.g., Mio v. Alberto-Culver Co., 715 N.E.2d 309, 313 (Ill. App. 2d Dist. 1999). By contrast, Texas law permits recovery in a wrongful death action by the surviving spouse, children, and parents of the deceased (Tex. Civ. Prac. & Rem. Code Ann. § 71.004(a), (b)) and authorizes any of the beneficiaries to commence a lawsuit within the first three months after the death of the injured individual (id. § 71.004(c)). However, after that initial time period, the Texas statute provides that only the "executor or administrator shall bring and prosecute the action unless requested not to by all those individuals." Id.
Here, none of the "individuals entitled to bring an action" under the Texas wrongful death statute did so within the first three months after the death of Mr. Trevino, Jr. And it is acknowledged that Ida Trevino was appointed administrator of Mr. Trevino, Jr.' s estate prior to the filing of any lawsuit. As of the date of her appointment, Ida Trevino had the statutory right to commence an action under the Texas wrongful death statute. However, she chose not to sue under that statute, but instead opted to file an action under the Illinois statute. A consequence of that decision is that Plaintiffs in this action are excluded from the wrongful death lawsuit brought by the administrator of the deceased' s estate, because they have no right to recover under Illinois law. The novel question that remains is ...