Frost

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:24-cv-00149-MOC-WCM

KRISTINA RENE FROST )

)

the Estate of )

Shawna Rene Mays and )

)

the Estate of Tristan Allen Mays; ) MEMORANDUM AND

GARY ALLEN MAYS, JR. ) RECOMMENDATION

)

the Estate of )

Shawna Rene Mays and )

)

the Estate of Tristan Allen Mays, )

)

Plaintiffs, )

v. )

)

HILLIARD LAW; )

HILLIARD MARTINEZ )

GONZALES, LLP; )

ROBERT CARL HILLIARD; )

JOHN BRANDON MARTINEZ; )

MARION MAGDALENE REILLY; )

RUDY F. GONZALES, JR.; )

MATTHEW LYLE MCMULLEN; )

LESLIE MARIE BEARDEN; )

ANA LUISA ZABALGOITIA; )

MOSS & COLELLA, PC; and )

ATTILIO VINCENZO COLELLA, )

)

Defendants. )

_______________________________

This matter is before the Court for case management

purposes.

I. Background

Shawna Rene Mays (“Shawna”) and Tristan Allen Mays (“Tristan”) were

the children of Kristina Rene Frost (“Ms. Frost”) and Gary Allen Mays, Jr.

(“Mr. Mays”). Plaintiffs’ claims arose initially out of a tragic vehicle fire that

occurred on July 3, 2018 and took the lives of Shawna and Tristan.

A. Frost I

On June 11, 2021, Ms. Frost and Mr. Mays, individually and as co-

personal representatives of the Estates of Shawna and Tristan, filed a

complaint in this Court against AmSafe Commercial Products, Inc.; AmSafe,

Inc.; TransDigm Group, Inc.; and Shield Restraint Systems, Inc. Civil Action

No. 1:21-cv-00156-MOC-WCM (“Frost I”). Plaintiffs were represented at that

time by Emily Beeson, Whitney Butcher, Marion Reilly, and Ana Zabalgoitia,

all of Hilliard Martinez Gonzales LLP; and by A. Vince Colella of Moss and

Colella.1

Plaintiffs filed an Amended Complaint on June 22, 2021, asserting

claims of (1) negligence, gross negligence, recklessness; (2) products

liability/improper design; (3) fraud by non-disclosure; (4) fraud by

misrepresentation; (5) wrongful death of both children; (6) survival claims for

1 Subsequently, Rudy Gonzales, Jr., Leslie Marie Tyroch and Matthew L. McMullen

of Hilliard Martinez Gonzales, and Sybil L. Dunlop of Greene Espel PLLP also

appeared for Plaintiffs.

both children; (7) bystander claims; and (8) products liability/failure to warn.

Subsequently, Defendants made a motion for judgment on the pleadings.

Doc. 66.

On March 29, 2023, the Honorable Max O. Cogburn, Jr., ruled on that

motion, and in doing so explained that “[o]ther than Plaintiffs’ claims

associated with Ms. Frost’s personal injuries, all of the damages Plaintiffs seek

to recover in this litigation arise out of the deaths of Shawna and Tristan.” Doc.

84 at 2. Based on the two-year statute of limitations applicable to wrongful

death claims, the Court found that most of Plaintiffs’ claims were time-barred.

Doc. 84 at 7. The Court stated:

Plaintiffs’ claims under the wrongful death act (Count

5) and survivorship statute (Count 6) are dismissed in

their entirety. To the extent that the remainder of

Plaintiffs’ claims seek relief associated with or arising

out of the death of Shawna Mays and Tristan Mays,

those claims are also dismissed with prejudice. At this

time,

. Therefore, those claims remain

viable.

Doc. 84 at 11 (emphasis added).

On April 7, 2023, Ms. Dunlop was allowed to withdraw as counsel for

Plaintiffs. Doc. 92.

On April 10, 2023, Plaintiffs’ remaining counsel moved to withdraw. Doc.

93.

On April 20, 2023, and following a hearing, the undersigned granted the

motion. Doc. 107.

On October 18, 2023, Judge Cogburn denied a defense Motion for

Summary Judgment. Doc. 116. In that order, the Court explained that “[a]ll of

the claims in this litigation associated with and arising out of the deaths of the

children have been dismissed as barred by the statute of limitations.

.” Doc. 116 at 1 (emphasis

added).

In November of 2023, new counsel for Ms. Frost appeared. Docs. 118,

119, 120, 121.

On December 19, 2023, Judge Cogburn granted the parties’ Joint Motion

for Settlement Conference. Doc. 125.

On January 12, 2024, Ms. Frost filed a Motion to Remove Dismissed

Parties and Amend Caption. Doc. 128. Therein, Ms. Frost stated that “[t]he

only viable claims remaining in this lawsuit are the individual personal injury

claims of Plaintiff Kristina Rene Frost. Therefore, the Plaintiff respectfully

requests the Court remove the Estates of Shawna Rene Mays and Tristan

Allen Mays, as well as Gary Allen Mays from further involvement in this

lawsuit, as they are no longer real parties in interest….” Doc. 128 at 1; see also

Doc. 129 at 2 (“The Estates of Shawna Rene Mays and Tristan Mays no longer

have viable claims in this lawsuit. Likewise, Mr. Gary Mays’ claims were solely

derivative of those wrongful death claims, and he has no further viable claims

in this action. (Doc. 84) Therefore, Mr. Mays is no longer a real party in interest

as to the remaining claims in either his individual capacity or as a co-personal

representative of his children’s estates.”).

On February 1, 2024, the undersigned conducted a judicial settlement

conference, which ended in an impasse.

On February 14, 2024, Ms. Frost and Defendants filed a Notice of

Settlement advising that all remaining claims in Frost I had been settled. Doc.

136.

On April 12, 2024, Ms. Frost and Defendants filed a Joint Stipulation of

Dismissal with Prejudice as to Plaintiff Kristina Frost. Doc. 139.

On April 17, 2024, Ms. Frost and Defendants filed an Amended Joint

Stipulation of Dismissal with Prejudice as to Plaintiff Kristina Frost. Doc. 140.

Specifically, the parties stipulated that “all claims asserted by Ms. Frost, that

remain pending in this litigation (i.e., all claims asserted by Ms. Frost -

specifically her claims in her individual capacity for her personal injuries that

were not already dismissed through the Court's March 29, 2023 Order granting

Defendants' Motion for Partial Judgment on the Pleadings) have been

resolved…” Doc. 140 at 1.

B. Frost II

On March 28, 2024 (which was approximately two weeks before the first

Stipulation of Dismissal was filed in Frost I), Ms. Frost and Mr. Mays,

individually and as co-personal representatives of the Estate of Shawna and

Tristan (the “Estates”) filed a complaint against Hilliard Law, Hilliard

Martinez Gonzales, LLP, various attorneys associated with Hilliard Law

and/or Hilliard Martinez Gonzales, LLP (Robert Carl Hilliard, John Brandon

Martinez, Marion Magdalene Reilly, Rudy F. Gonzales, Jr., Matthew Lyle

McMullen, Leslie Marie Bearden, Ana Luisa Zabalgoitia, Emily Jeannette

Beeson, and Whitney Jo Butcher), Moss & Colella, PC, and Attilio Vincenzo

Colella in the Superior Court of Buncombe County, North Carolina. Doc. 1-2.

Plaintiffs alleged that the claims made in Frost I were viable, meritorious

claims that would have led to substantial recovery on behalf of the Estates but

for the untimely filing of the Complaint. Id. at ¶ 95. Plaintiffs further alleged

that the defendants failed to inform Plaintiffs “of the malpractice they

committed in missing the statute of limitations on behalf of the children’s

estates” in Frost I. Id. at ¶ 134.

Ms. Frost and Mr. Mays alleged that they were citizens of Michigan, id.

1-2 at ¶¶ 1, 2, and that they were the co-personal representatives of the

Estates. Id. 1-2 at ¶ 4. They also alleged that Moss & Colella, PC was a

professional corporation registered in the state of Michigan and that Attilio

Vincenzo Colello was an attorney licensed to practice law in Michigan. Id. at

¶¶ 38-41.

On May 17, 2024, certain defendants removed the matter to this Court

based on alleged diversity jurisdiction pursuant to 28 U.S.C. § 1332. Doc. 1.

The removing defendants asserted that Plaintiffs were citizens of North

Carolina, that Emily Jeannette Beeson and Whitney Jo Butcher (who were also

North Carolina citizens) were improperly joined, and that none of the

remaining defendants were citizens of North Carolina.

On June 6, 2024, Ms. Frost and Mr. Mays each filed two citizenship

disclosure statements – one with respect to herself or himself individually and

one with respect to herself or himself as personal representative of the Estates.

Docs. 20-23. Both Plaintiffs indicated that, as individuals, they were citizens

of Michigan. Docs. 20, 22. As representatives of the Estates, both indicated

they were citizens of North Carolina. Docs. 21, 23.

On June 11, 2024, Attorney Colella and Moss & Colella, PC filed

citizenship disclosure statements. Docs. 31, 32. Mr. Colella stated that he is a

citizen of Michigan. Doc. 31. Likewise, Moss & Colella, PC appears to be a

citizen of Michigan. Doc. 32.

On July 26, 2024, Plaintiffs filed a Stipulation of Voluntary Dismissal

Without Prejudice as to Defendants Emily Jeannette Beeson and Whitney Jo

Butcher Pursuant to F.R.C.P. 41(a)(1)(A)(ii). Doc. 35.

On September 3, 2024, Plaintiffs filed an Amended Complaint against

Hilliard Law, Hilliard Martinez Gonzales, LLP, various attorneys associated

with Hilliard Law and/or Hilliard Martinez Gonzales, LLP (Robert Carl

Hilliard, John Brandon Martinez, Marion Magdalene Reilly, Rudy F. Gonzales,

Jr., Matthew Lyle McMullen, Leslie Marie Bearden, and Ana Luisa

Zabalgoitia), Moss & Colella, PC, and Attilio Vincenzo Colella (collectively, the

“Law Firm Defendants”) which asserts claims of (1) legal negligence, gross

legal negligence, willful or wanton conduct, recklessness; (2) breach of contract;

(3) fraud, fraudulent concealment, constructive fraud, breach of fiduciary duty,

misrepresentation; (4) negligent and reckless infliction of emotional distress;

(5) vicarious liability; and (6) punitive damages. Doc. 38.

The Law Firm Defendants then moved to dismiss Plaintiffs’ claims. Doc.

45.

On September 30, 2025, the Court ruled on the Motion to Dismiss and

allowed all of Plaintiffs’ claims to proceed, except for Plaintiffs’ breach of

contract claim. Doc. 49.2

Thereafter, the Law Firm Defendants answered the Amended

Complaint.

On December 12, 2025, the undersigned conducted an initial pretrial

2 In their response to the Motion to Dismiss, Plaintiffs stated that they would not

pursue that claim. See Doc. 49 at 6-7.

conference and, in light of the possibility that complete diversity was lacking,

requested further briefing on the issue of subject matter jurisdiction. That

briefing was subsequently submitted. Docs. 74, 75, 81.

II. Legal Standard

A federal district court has original diversity jurisdiction “only if

diversity of citizenship among the parties is complete, i.e., only if there is no

plaintiff and no defendant who are citizens of the same State.” Wisconsin Dep't

of Corr. v. Schacht, 524 U.S. 381, 388 (1998). “The presence of [a] nondiverse

party automatically destroys original [diversity] jurisdiction ....” Id. at 389.

“If a plaintiff files suit in state court and the defendant seeks to

adjudicate the matter in federal court through removal, it is the defendant who

carries the burden of alleging in [its] notice of removal and, if challenged,

demonstrating the court's jurisdiction over the matter.” Strawn v. AT & T

Mobility LLC, 530 F.3d 293, 296 (4th Cir. 2008) (citing, e.g., Ellenburg v.

Spartan Motors Chassis, Inc., 519 F.3d 192, 200 (4th Cir. 2008)).

III. Discussion

A. Individual Capacity Claims

The Amended Complaint clearly includes claims by the Estates. For

example, it alleges that the Law Firm Defendants represented Plaintiffs in a

mediated settlement conference that was held on September 13, 2022

concerning the potential resolution of actions pending in both North Carolina

and Ohio. Doc. 38 at ¶ 157. Plaintiffs allege that the Law Firm Defendants did

not explain that Plaintiffs “faced a significant risk of recovering nothing for the

wrongful death claims” or that the Law Firm Defendants had a potential

conflict of interest (based on the statute of limitations issue). Id. at ¶¶ 163, 164.

Plaintiffs further allege that they “incurred substantial economic losses and

damages

.” Id. at ¶ 208 (emphasis added).3

But the Amended Complaint also includes claims on behalf of Ms. Frost

individually. For example, Plaintiffs allege that “[u]pon information and belief,

Defendants[’] wrongful acts and omissions have proximately caused

”

Id. at ¶ 235.

The Law Firm Defendants argue that any individual capacity claims

asserted by Ms. Frost (or Mr. Mays) should be disregarded as “nominal” claims

“that are inextricably linked with and wholly derived from the Estates’ legal

malpractice claim,” Doc. 74 at 6, such that the only real parties in interest are

3 Plaintiffs contend that had they been properly informed of the statute of limitations

issues and the negotiation process in general, “they would have continued negotiating

and most likely resolved the case” during the September 13 mediation and that the

Law Firm Defendants’ conduct “caused Plaintiffs to lose the opportunity

while the claims still had significant settlement value.” Id. at

¶¶ 167, 168 (emphasis added).

the Estates of Shawna and Tristan. Id. at 13. In support of that position, the

Law Firm Defendants contend that by the time Frost II began on March 28,

2024, all of Ms. Frost’s individual claims had been settled.

However, Plaintiffs’ allegations in Frost II indicate that Plaintiffs are

asserting claims beyond those that were settled in Frost I. That is, here, Mr.

Frost is asserting claims other than those associated with her own personal

injuries incurred as a result of burns she received during the car fire.

Further, in their Motion to Dismiss, the Law Firm Defendants did not

seek the dismissal of Ms. Frost’s current claims on the ground that they are

duplicative of those she asserted (and subsequently settled) in Frost I. See

Docs. 45, 46.4

Accordingly, the undersigned is not persuaded that the claims asserted

by Plaintiffs in their individual capacities may be disregarded for purposes of

the jurisdictional analysis.

B. 28 U.S.C. § 1332(c)(2)

Section 1332(c)(2) provides that “the legal representative of the estate of

a decedent shall be deemed to be a citizen only of the same State as the

decedent….”

The Law Firm Defendants argue that because Plaintiffs are serving as

4 Instead, the Law Firm Defendants argued (among other things) that most Plaintiffs’

claims were time-barred by the applicable statutes of limitations.

the Estates’ legal representatives, Plaintiffs can only be considered to be

citizens of North Carolina pursuant to 28 U.S.C. § 1332(c)(2). See Doc. 81 at 7

(“Even hypothetically accepting the NIED or fraud claims as separate and

individual claims, the Plaintiffs’ citizenship would still be determined as that

of the decedent since the Response explicitly states Plaintiffs are suing in their

representative capacity, and not merely as an individual.”).

However, the undersigned reads the term “only” in 1332(c)(2) as applying

to the citizenship of an estate, which must be that of the decedent. In other

words, the representative of an estate—when acting in that capacity—cannot

be considered to have multiple citizenships. The language does not address the

situation where a representative also brings claims in his or her individual

capacity. See Tank v. Chronister, 160 F.3d 597, 599 (10th Cir. 1998) (“Section

1332 was added to the diversity statute as part of the Judicial Improvements

Act of 1988. The purpose of the Act was to reduce substantially the diversity

jurisdiction of the federal courts. See H.R. Rep. No. 100–889, reprinted in 1988

U.S.C.C.A.N. 5982. Section 1332(c)(2) contributed to this effort by

discouraging, in cases involving a decedent's estate, the appointment of out-of-

state personal representatives solely for the purpose of creating diversity of

citizenship where it would otherwise not exist.”).

Further, the Law Firm Defendants do not cite controlling authority

supporting the position that, when an individual brings claims both on behalf

of an estate and for himself or herself personally, only the citizenship of the

estate may be considered for diversity purposes. And it appears that other

courts have considered such dual-capacity plaintiffs to have both their own

citizenship (for purposes of their individual claims) and the citizenship of the

decedent (for purposes of the estate’s claims). See Laufert v. Davis Logistics,

LLC, No. 2:22-CV-00029, 2022 WL 14068948, at *3 (S.D.W. Va. Oct. 24, 2022)

(dismissing for lack of subject matter jurisdiction where plaintiff brought

claims in both her individual and representative capacity and it appeared that

her citizenship for purposes of her individual claims was not diverse from at

least one defendant); Est. of Thomas ex rel. Thomas v. Wakefern Food, Corp.,

No. 3:12-CV-01723 CSH, 2012 WL 6212657, at *3 (D. Conn. Dec. 13, 2012)

(“because Plaintiff has brought her action both as administratrix for her

husband's estate and in her individual capacity, in addition to establishing her

own domicile…she must establish the citizenship of her late husband. This is

because for purposes of diversity jurisdiction, the administratrix of an estate

has the same citizenship as the decedent.”); Est. of Brown v. Affiliated Workers

Ass'n, No. 3:14-CV-00031-SMR-CFB, 2014 WL 12610148, at *1 (S.D. Iowa Apr.

25, 2014) (“assuming that the administrator of an estate falls within the

definition of legal representative….the Notice of Removal must be amended to

indicate the state where the decedent Steven Brown was a citizen at the time

of his death. In addition, Pamela Brown brings this case both individually and

as administrator of the estate of Steven Brown. Pamela Brown's citizenship as

of the date of removal must be alleged for her action in her individual

capacity.”); Miller v. Miller, No. 22-CV-335, 2022 WL 1397721, at *2 (W.D. La.

Apr. 11, 2022), report and recommendation adopted, No. 5:22-CV-00335, 2022

WL 1321126 (W.D. La. May 3, 2022) (“Kay is a citizen of Louisiana in her

individual capacity. She is also a citizen of Louisiana in her capacity as

succession representative because Travis was a citizen of Louisiana when he

died.”); Dymon v. Laffaye, No. 3:12-CV-320 CSH, 2012 WL 774996, at *2 (D.

Conn. Mar. 7, 2012) (“because plaintiff has brought her action both as

administratrix for her husband's estate, as well as in her individual capacity,

in addition to establishing her own domicile…she must state the citizenship of

her late husband. For purposes of diversity jurisdiction, the administratrix of

an estate has the same citizenship as the decedent.”); Kirkpatrick v. Brummet,

No. 22-CV-01217-PAB, 2022 WL 1810584, at *1 (D. Colo. June 2, 2022) (“The

complaint states that plaintiff Carly Kirkpatrick brings this action

individually and as the personal representative of the estate of her deceased

husband, William Kirkpatrick….The Court accordingly construes the

complaint to allege that there are two plaintiffs: Ms. Kirkpatrick and the

Estate of William Kirkpatrick.”); see also Erickson v. Erickson, 849 F. Supp.

453, 455 (S.D.W. Va. 1994) (“The Defendant has been sued in both his

individual and fiduciary capacities. Although Defendant asserts he is a citizen

of the state of Florida, such citizenship accrues only to his individual capacity.

In his fiduciary capacity as executor of the estate of the decedent, the

Defendant ‘is deemed to be a citizen only of the same State as the decedentl|.]”)

(citing 28 U.S.C. § 1332(c)(2) (1988)).

Since Ms. Frost, Mr. Mays, Attorney Colella, and Moss & Colella, PC are

all citizens of Michigan, the Law Firm Defendants have not carried their

burden of establishing that the parties in this matter are completely diverse.

IV. Recommendation

The undersigned therefore RESPECTFULLY RECOMMENDS that this

matter be remanded to the Superior Court of Buncombe County, North

Carolina.

Signed: May 21, 2026

W. Carleton Metcalf Key |

United States Magistrate Judge dey

15

Time for Objections

The parties are hereby advised that, pursuant to Title 28, United States

Code, Section 636, and Federal Rule of Civil Procedure 72(b)(2), written

objections to the findings of fact, conclusions of law, and recommendation

contained herein must be filed within fourteen (14) days of service of same.

Responses to the objections must be filed within fourteen (14) days of service

of the objections. Failure to file objections to this Memorandum and

Recommendation with the presiding District Judge will preclude the parties

from raising such objections on appeal. See Thomas v. Arn, 474 U.S. 140, 140

(1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).