274 F.2d 41 (2nd Cir. 1959), 20, Iovino v. Waterson

Docket Nº:20, 25575.
Citation:274 F.2d 41
Party Name:Saverio D. IOVINO and Leonard P. Luisi, Plaintiffs-Appellees, v. George WATERSON, Jr., Defendant. Frances E. Carlin, as Administratrix of George Waterson, Sr., Deceased, Substituted Defendant-Appellant.
Case Date:December 01, 1959
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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274 F.2d 41 (2nd Cir. 1959)

Saverio D. IOVINO and Leonard P. Luisi, Plaintiffs-Appellees,


George WATERSON, Jr., Defendant.

Frances E. Carlin, as Administratrix of George Waterson, Sr., Deceased, Substituted Defendant-Appellant.

Nos. 20, 25575.

United States Court of Appeals, Second Circuit.

December 1, 1959

Argued Oct. 9, 1959.

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Robert M. Reagan, New York City (Abrams & Fastenberg, New York City, and Gustave G. Rosenberg and Lawrence M. Rosenberg, New York City, on the brief), for plaintiffs-appellees.

Joseph A. Doran, New York City (John E. Morris, New York City, on the brief), for substituted defendant-appellant.

Before LUMBARD, WATERMAN and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

The question is whether, in a suit removed to the Southern District of New York because of diversity of citizenship, the District Court could order substitution of an administratrix ad litem of the defendant appointed in New Jersey, under F.R.Civ.Proc. 25(a)(1), quoted in footnote 2 below, although application for this was not made until more than two years after defendant's death. We hold that it could.

The suit was brought by plaintiffs, residents of New York, to recover for personal injuries sustained in Virginia in December, 1954, while passengers in an automobile owned by defendant and operated by his son, who was killed. The action was begun in March, 1955, in the Supreme Court, New York County, by the service of summons in New York on Waterson, a resident of New Jersey. The defendant removed to the District Court. On April 24, 1955, Waterson died intestate. He left no property in New York, other than such rights of exoneration or indemnity, if any, as he may have had from insurers in connection with the claims here asserted. Plaintiffs' attorneys remained ignorant of defendant's death, and the attorney who appeared for Waterson and now appears as attorney of record for the administratrix asserts that he likewise was. In May, 1955, plaintiffs' attorneys served a complaint on the attorney who had appeared for Waterson. The latter accepted service, served an answer, and, in 1956, examined plaintiffs before trial and participated in pre-trial conferences before the District Court. No mention was made of Waterson's death.

It was not until the spring of 1958 that plaintiffs' attorneys learned of this. They promptly took appropriate proceedings in New Jersey for the appointment of an administratrix ad litem and then moved in the District Court for an order substituting her as defendant in this action and granting them leave to serve an amended complaint. Over the objection of the administratrix, the District Court granted the relief sought. On motion made by the administratrix within 10 days thereafter, the District Court amended its order to include the certificate required as a premise for a motion for leave to appeal under 28 U.S.C.A. § 1292(b). This Court granted such leave.

The order substituting the New Jersey administratrix can stand only if plaintiffs are able to establish each of the following propositions:

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  1. F.R.Civ.Proc. 25(a)(1) permits the substitution of personal representatives of non-resident as well as of resident decedents.

II. A Federal Rule permitting the substitution of the personal representative of a non-resident decedent does not violate the due process clause of the Fifth Amendment.

III. Application of a Federal Rule permitting the substitution of the personal representative of a non-resident decedent in a suit where Federal jurisdiction is based on diversity of citizenship and in a state that has not permitted such substitution, is not beyond the scope of the act, 28 U.S.C.A. 2072, authorizing the Supreme Court to establish rules for 'the practice and procedure of the district courts of the United States' and does not go beyond Federal legislative power.

IV. Plaintiffs are not precluded from effecting substitution under F.R.Civ.Proc. 25(a)(1) because of their failure to act within the two-year time limit there provided.

We shall examine these propositions and set forth our reasons for believing that plaintiffs can carry each of them.


F.R.Civ.Proc. 25(a)(1) permits the substitution of personal representatives of non-resident as well as of resident decedents.

The provisions of F.R.Civ.Proc. 25(a)(1) in regard to substitution must be considered in the light of the development of the law as to the revivor of actions against foreign administrators in state and Federal courts. This we shall now summarize.

The American Law Institute's Restatement of the Law of Conflict of Laws states, § 512, 'No action can be maintained against any administrator outside the state of his appointment upon a claim against the estate of the decedent.' A comment says this rule applies 'although the action in which it is now sought to make the foreign administrator a party was begun against the decedent in his lifetime and the Court had jurisdiction over his person.' In the view of the reporter, this doctrine, to which he was deeply attached, rested not merely on the difficulties that such an action would cause to orderly administration but 'upon a much more fundamental reason than mere expedience, ' 3 Beale, Conflict of Laws 1553. 1

The rule of the Restatement was supported by decisions of the courts of New York. In Helme v. Buckelew, 1920, 229 N.Y. 363, 128 N.E. 216, Judge Cardozo had expounded the received doctrine and, in order to avoid constitutional doubts, had construed 1836a of the Code of Civil Procedure, Laws 1911, ch. 631, which had granted broad permission for foreign executors and administrators to sue or be sued, as authorizing only suits by them and those suits against them where 'the subject-matter subjects them to the jurisdiction' (229 N.Y. at page 373, 128 N.E. at page 219). Five years later the New York Legislature, in an amendment to 160 of the Decedent Estate Law, provided for revivor against foreign executors and administrators in

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language that defied the negating construction of Helme v. Buckelew. The Court of Appeals answered, in an opinion by Judge Pound, that 'on the authority of recent and persuasive dicta in Helme v. Buckelew, supra, as herein enlarged, the constitutional requirement of due process of law precludes the Legislature from providing generally for continuing judgments in personam against the foreign executors or administrators of deceased defendants.' McMaster v. Gould, 1925, 240 N.Y. 379, 388, 148 N.E. 556, 559, 40 A.L.R. 792. The Court made clear just what due process requirement it had in mind by quoting (240 N.Y. at page 385, 148 N.E. at page 559) from Pennoyer v. Neff, 1878, 95 U.S. 714, 733, 24 L.Ed. 565.

The Federal Courts in New York had earlier reached the same result, Lawrence v. Southern Pacific Co., C.C.E.D.N.Y.1910, 177 F. 547; Stromeyer Co. v. Aldrich, D.C.E.D.N.Y.1915, 227 F. 960. Indeed, Judge Learned Hand's opinion in Thorburn v. Gates, D.C.E.D.N.Y.1915, 225 F. 613, was a precursor of the construction of § 1836a of the Code of Civil Procedure later adopted by Judge Cardozo in Helme v. Buckelew. Once the New York courts had spoken, the Federal courts in New York would have followed the New York decisions, even without benefit of Erie, so long as Congress had not given a contrary direction, Baltimore & Ohio R. v. Joy, 1899, 173 U.S. 226, 19 S.Ct. 387, 43 L.Ed. 677.

In 1921 Congress gave such a direction. Ever since the first Judiciary Act, Rev.Stat. § 955, it had been provided that 'When either of the parties, whether plaintiff or petitioner or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judgment.' By the Act of November 23, 1921, 42 Stat. 323, Congress amended this provision, then embodied in 28 U.S.C. § 778, by adding a new paragraph that 'the jurisdiction of all courts of the United States shall extend to and over executors and administrators of any party, who dies before final judgment or decree, appointed under the laws of any State or Territory of the United States, * * * and such courts shall have jurisdiction within two years from the date of the death of the party to the suit to issue its scire facias to executors and administrators appointed in any State or Territory of the United States which may be served in any judicial district by the marshal thereof.' The legislative history placed it beyond doubt that the intention was to reverse for the Federal courts the rule of no revivor by or against administrators or executors appointed by the courts of another state or territory. H.R.Rep. No. 429, 67th Cong., 1st Sess., 1-2; 61 Cong.Rec. 7056.

The Federal courts applied the 1921 amendment in accordance with its language and declared purpose. Luster v. Martin, 7 Cir., 58 F.2d 537, certiorari denied 1932, 287 U.S. 637, 53 S.Ct. 86, 77 L.Ed. 552; Plimpton v. Mattakeunk Cabin Colony, D.C.D.Conn.1934, 6 F.Supp. 72, and cases cited. No consideration appears to have been given at the time to whether the difficulties that had led the Court of Appeals to hold the act of the New York legislature offensive to the due process requirements of the Fourteenth Amendment created any problem for Congress under the Fifth. Nor in those days, when 'Erie was still hidden in the mist of the future, ' Robert Lawrence Co. v. Devonshire Fabrics, 2 Cir., 271 F.2d 402, was question raised whether the 1921 enactment went beyond Federal legislative power.

Federal Rule 25(a)(1), which we quote in the margin, 2 carried forward 28

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U.S.C.A. § 778, including the 1921 amendment permitting revivor by or against foreign administrators or executors. Although the simple phrase used in the Rule, 'substitution of the proper parties, ' might not alone have sufficed to evidence that intent, the...

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