Allen v. Baker, GC685.

• Decision Date: 08 May 1968
• Docket Number: No. GC685.,GC685.
• Citation: 327 F. Supp. 706
• Parties: Joe A. ALLEN, Plaintiff, v. Don O. BAKER, Defendant.
• Court: U.S. District Court — Northern District of Mississippi

327 F. Supp. 706

Joe A. ALLEN, Plaintiff, v. Don O. BAKER, Defendant.

No. GC685.

United States District Court, N. D. Mississippi, Greenville Division.

May 8, 1968.

Philip Mansour, Greenville, Miss., for plaintiff.

James L. Robertson, Campbell, DeLong, Keady & Robertson, Greenville, Miss., for defendant.

MEMORANDUM OPINION

CLAYTON, Circuit Judge.^*

The plaintiff, Joe A. Allen, a resident of Missouri, brings this action seeking to recover for the alleged wrongful death of his brother, Billy Wayne Allen, a citizen of Mississippi, which is said to have occurred during the course of employment by the defendant. The jurisdictional amount is not here in dispute. Diversity of citizenship, forming the basis for the claim of jurisdiction, is in dispute and has been raised by the defendant's motion to dismiss filed pursuant to Rule 12(b), Federal Rules of Civil Procedure. This motion has been submitted on briefs, evidentiary materials and the pleadings and is presently for disposition.

In this posture, relevant facts which are not in dispute are stated. The decedent, Billy Wayne Allen, had neither wife nor children during his lifetime. He was survived by Mrs. Annie Mae Allen, his mother, Mrs. Janice Matthews, his sister, both citizens of Mississippi; Charles Edward Allen, his brother, a citizen of California; and the plaintiff here who, as stated, was decedent's brother and is a citizen of Missouri. No administrator or executor has been appointed to administer the deceased's estate.

It is apparent that the plaintiff is acting solely pursuant to § 1453, Mississippi Code Annotated (1966 Supp.), which is the Mississippi wrongful death statute. This statute in its relevant part provides that an action for damages occurring as the result of a death, found to be wrongful, may be brought by "a brother, or all parties interested may join in the suit, and there shall be but one suit for the same death which shall ensue for the benefit of all parties concerned, * * *. In such action the party or parties suing shall recover such damages as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit." (Emphasis added.) The statute further provides that "if the deceased has no husband, nor wife, nor children, the damages for his wrongful death shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death."

Defendant urges that under this statute and its construction by the Supreme Court of Mississippi, all of the aforementioned survivors of the decedent here are plaintiffs or are "real parties in interest to this suit," in addition to the plaintiff, even though they said survivors have not been formally joined. Since the survivors are real parties in interest, it is contended, their citizenship should be considered for jurisdictional purposes, and since two of these survivors, i. e., decedent's mother and sister, are citizens of Mississippi as is the defendant, complete diversity does not exist. The requirement of complete diversity of citizenship, in essence, means that all the parties on one side of a controversy must be citizens of different states from all the parties on the other side of the controversy. Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435 (1806); Lowry v. International Brotherhood, 259 F.2d 568 (5 Cir. 1958). But, with respect to these assertions, the defendant expressly states that joinder of these survivors is not sought, since it is defendant's contention that said survivors are "already parties in interest in this action along with plaintiff".

At the outset, the question seems to be to what extent the citizenship of a person—not joined as a party—can be considered in such a situation where complete diversity appears on the face of the pleadings? Or to state the question another way, can the appearance of complete diversity be impeached by resort to the citizenship of parties not of record? It seems fundamental that only the citizenship of parties actually admitted to a lawsuit, either originally as plaintiffs or defendants or through intervention or joinder, can be considered for diversity jurisdictional purposes. As Justice Fuller aptly noted:

The jurisdiction of the Federal courts depends, not on the relative situation of the parties concerned in interest, but on the relative situation of the parties named in the record.

Mexican Central R. Co. v. Eckman, 187 U.S. 429, 23 S.Ct. 211, 47 L.Ed. 245, 247 (1903).

Judge Holmes stated it a slightly different way when he said:

The rule is well settled that federal jurisdiction depends, not on the diversity of citizenship of the parties concerned in interest, but on the relative situation of the parties named in the record. Much depends upon how the action is brought and upon the legal right of the administrator the party there bringing the suit to sue in his own name.

Thames v. State of Mississippi, 117 F.2d 949 (5 Cir. 1941), (dissenting opinion).

Thus, in spite of defendant's disavowals in this regard, the question necessarily is one of joinder, for the citizenship of these survivors only becomes relevant to the jurisdictional question here presented if it is determined that their interest in this action is of such a nature that this court could not proceed to the merits without their presence. If this be the case, then these survivors would be regarded as "indispensable". In determining the nature of these survivors' interest and, consequently, their indispensability vel non, both state and federal law must be consulted. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Where diversity of citizenship affords the jurisdictional basis, "the nature of an interest in litigation depends upon the law of the state concerned". Jett v. Zink, 362 F.2d 723 (5 Cir. 1966). For "in a diversity case, state substantive law will govern in determining the rights and interests of all concerned." Ibid. Or as one authority has stated, "state law determines who has the substantive right sought to be enforced". Wright, Federal Courts, p. 257.

By the enactment of the Mississippi wrongful death statute, the State of Mississippi has afforded the substantive right to recover for the death of the decedent. The survivors', as well as the plaintiff's, "connection with and interest in the right of action created * * * depend on the construction of the statute, and involve therefore a question of State law on which the Supreme Court of Mississippi speaks with final authority." Thames v. State of Mississippi, supra, at 951. By the clear language of the statute, the plaintiff as decedent's brother is afforded the substantive right to sue for this death. All parties interested "may" join in the suit, and it the suit shall be for the benefit of all parties concerned. One suit, and one suit only, is authorized, and by the use of the word "may," it is apparent that it is not mandatory that all interested persons join. In fact, it has been stated that "it matters not which of the family beneficiaries sues, the proceeds belong to those entitled as if they all had been named as plaintiffs." Thames v. State of Mississippi, supra; Kelly v. Howard, 98 Miss. 543, 54 So. 10 (1911). In Mississippi Power and Light Company v. Smith, 169 Miss. 447, 153 So. 376 (1934), the court stated that:

The statute gives no preference, and we have definitely settled that the one who first brings the suit has the right to prosecute and maintain it to a conclusion. At p. 380. (Emphasis added)

Since the plaintiff has instituted the present suit alone, the right of these survivors, or either of them, to bring suit has abated, and their right to join therein is, at best, permissive. This is true, although they are still entitled to a share of any recovery obtained. The defendant urges, however, that these survivors are plaintiffs to this lawsuit which is true to the extent only that they are entitled to share in the fruits of this litigation. But this fact does not, absent formal admission of them as parties hereto, make them plaintiffs of record.

It follows, therefore, that under state law these survivors are not necessary parties to this action, since the plaintiff is authorized to prosecute this action to its conclusion on behalf of himself and, in a representative capacity, on behalf of the survivors.

The principles of state law, which have been discussed, are substantive and, therefore, binding on this court in this action. Thus, consideration must now be given to relevant federal law. Rule 17 (a), Federal Rules of Civil Procedure, requires that every action be prosecuted in the name of the "real party in interest". The defendant asserts that this action is not in fact being maintained by all the real parties in interest due to the absence of these survivors. This assertion, however, has no bearing on the diversity of citizenship problem presented, since Rule 17(a) has no effect on state substantive law, nor do its requirements enlarge or contract the jurisdiction of this court. Rock Drilling, etc., Local Union No. 17 v. Mason and Hanger Company, 217 F.2d 687 (2 Cir. 1954); Horwich v. Price, 25 F.R.D. 500 (D.C.Mich. 1960); 35A C.J.S. Federal Civil Procedure § 53, p. 104. This rule merely deals with the proper entitlement of an action. See Fallat v. Gouran, 220 F.2d 325 (3 Cir. 1955).

The real party in interest, in whose name an action must be prosecuted,...