Davis v. Piper Aircraft Corp.

• Citation: 615 F.2d 606
• Decision Date: 02 January 1980
• Docket Number: No. 77-2478,77-2478
• Parties: Jimmy P. DAVIS, as Executor of the Estate of Dallas D. Hardy, Jr., Deceased, Appellant, v. PIPER AIRCRAFT CORPORATION, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 606

615 F.2d 606

Jimmy P. DAVIS, as Executor of the Estate of Dallas D Hardy, Jr., Deceased, Appellant, v. PIPER AIRCRAFT CORPORATION, Appellee.

No. 77-2478.

United States Court of Appeals Fourth Circuit.

Argued Jan. 8, 1979.

Decided Jan. 2, 1980.

Albert W. Copeland, Montgomery, Ala. (Hobbs, Copeland, Franco & Screws, P. A., Montgomery, Ala., Harold K. Bennett, Bennett, Kelly & Cagle, P. A., Asheville, N. C., on brief), for appellant.

Larry Leake, Asheville, N. C. (Harry DuMont, Uzzell & DuMont, Joel B. Stevenson, McLean, Leake, Talman & Stevenson, Asheville, N. C., on brief), for appellee.

Before WIDENER, HALL and PHILLIPS, Circuit Judges.

JAMES DICKSON PHILLIPS, Circuit Judge:

In this wrongful death diversity case plaintiff, as executor by Alabama appointment of an Alabama decedent's estate, timely filed a complaint in the United States District Court for the Western District of North Carolina, then sought leave to amend his complaint to allege his capacity as ancillary administrator by North Carolina appointment made after the statute of limitations had run. The district court denied leave to amend and, on defendant's motion, dismissed the action for plaintiff's lack of capacity under North Carolina law. ¹ We reverse and remand for further proceedings.

I.

On October 13, 1974, Dallas D. Hardy, his wife Betty Hardy, and one Toni Sellars died in the crash of a Piper Aircraft on take-off from Ferguson Airport in Swain County, North Carolina. Thereafter personal representatives of the Sellars and Betty Hardy Estates instituted separate wrongful death actions against Dallas Hardy's estate and Piper Aircraft, as co-defendants, in the state courts of Alabama. A judgment was obtained against both defendants in the Sellars case, and the Betty Hardy case resulted in a settlement. Jimmy P. Davis, appointed executor of the Dallas Hardy estate by an Alabama probate court, commenced this wrongful death action on October 7, 1976, five days prior to the running of the applicable North Carolina two-year statute of limitation, N.C.Gen.Stat. § 1-53(4). ²

Defendant's answer was not filed until some five months later, on March 7, 1977. In this answer defendant moved for dismissal, or, in the alternative, for summary judgment, on grounds that the plaintiff, not having qualified as ancillary administrator of the Hardy estate, lacked the legal capacity to prosecute this North Carolina claim in the federal district courts of North Carolina. Four months later, on July 7, 1977, plaintiff filed a motion to amend ³ his complaint to reflect his capacity as ancillary administrator by virtue of his appointment by a North Carolina court on July 6, 1977. Based upon consideration of the pleadings and the parties' briefs and arguments, the district court denied plaintiff's motion to amend the complaint, and granted defendant's motion to dismiss.

In an accompanying memorandum the court held that under Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), Fed.R.Civ.P. 15(a), (c) applied to control decision on the motion to amend rather than a contrary state rule which would, categorically, prohibit the allowance of amendments changing a plaintiff's capacity when the result would be to cure by relation back a lack of capacity that existed when an applicable statute of limitations had run. Applying Federal Rule 15 the court however determined in its discretion that amendment with relation back effect should not be allowed under the circumstances. Defendant's motion to dismiss was thereupon granted. Though we agree with the district court that federal rules of procedure, including Rule 15(c), control decision here, we conclude that in denying leave to amend under the federal rules the district court abused its discretion, and for this reason we reverse and remand.

II.

North Carolina law determines the capacity of a party to bring a diversity action for wrongful death under state law in the federal courts of North Carolina. Fed.R.Civ.P. 17(b); see Fennell v. Monongahela Power Co., 350 F.2d 867 (4th Cir. 1965). The right of action for wrongful death is purely statutory in North Carolina, Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761 (1963), and may be brought only by "the personal representative or collector of the decedent," N.C.Gen.Stat. § 28A-18-2, in his representative capacity, id. § 28A-18-3. A foreign executor or administrator lacks capacity under North Carolina law to prosecute or defend an action in his representative capacity without first having qualified in North Carolina as ancillary administrator. See Cannon v. Cannon, 228 N.C. 211, 45 S.E.2d 34 (1947); N.C.Gen.Stat. § 28A-26-3. Since plaintiff had not obtained appointment as ancillary administrator at the time the action was commenced on October 7, 1976, nor when the applicable statute of limitations ran on October 13, 1976, but only when he received appointment as ancillary administrator on July 6, 1977, his capacity to maintain this action dates only from the last date, unless by an amendment relating back to the date of the action's commencement that lack of timely capacity may be cured. This appeal therefore presents two issues: whether applicable law permits such an amendment under any circumstances; and, if so, whether it should have been allowed under the circumstances of this case. Resolution of the first issue requires determining whether state or federal law controls the allowance and relation back of the amendment sought here. Defendant contends as an alternative basis for affirming the judgment that, contrary to the district court's reasoning, North Carolina law should control, and that it categorically precludes allowance of the amendment. This is of course a classic Erie choice of law problem and we address it first.

While the matter may not be entirely free of doubt, for purpose of this decision it may be considered that North Carolina law would prevent allowance of the amendment sought here. ⁴ Building on the general principle developed under state code practice that amendments introducing "entirely new causes of action" should not be deemed to relate back, a line of North Carolina cases has considered amendments reflecting legal capacity acquired after filing of an original pleading to fall in that category, hence to preclude their allowance when this would defeat the limitations bar. See, e. g., Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761 (1963); Johnson v. Wachovia Bank & Trust Co., 22 N.C.App. 8, 205 S.E.2d 353 (1974).

On the other hand, the longstanding weight of federal authority would give relation back effect to such an amendment. This federal view which developed prior to the advent of the Federal Rules of Civil Procedure, e. g., Missouri, Kansas & Texas Railway v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355 (1913); United States v. Powell, 93 F.2d 788 (4th Cir. 1938); Lopez v. United States, 82 F.2d 982 (4th Cir. 1936) (noting conflict with North Carolina rule), is now considered subsumed within Fed.R.Civ.P. 15(c). See, e. g., Russell v. New Amsterdam Casualty Co., 303 F.2d 674 (8th Cir. 1962). See also Levinson v. Deupree, 345 U.S. 648, 652, 73 S.Ct. 914, 97 L.Ed. 1319 (1953).

We thus come to the question whether the state or federal rule shall be applied in the face of their conflict. On this, defendant contends that the guide is to be found in the outcome determinative test of Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945) as given specific application in Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949), ⁵ and that this compels application of the state rule. To the contrary, plaintiff urges, and the district court agreed, that the answer is definitively given by Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), ⁶ and that this decision compels application of the federal rule.

We think that Hanna generally commands application of Fed.R.Civ.P. 15(c) in the face of a contrary state rule, and specifically commands its application here. See Crowder v. Gordons Transports, Inc., 387 F.2d 413 (8th Cir. 1967). But see McNamara v. Kerr-McGee Chemical Corp., 328 F.Supp. 1058 (E.D.N.C.1971) (relying on Guaranty Trust; Hanna not considered). While it may be arguable that the North Carolina rule is substantially akin to the Kansas rule in Ragan, ⁷ we think that the distinction used in Hanna to avoid clash with Ragan is equally available to distinguish the instant case from Ragan. Here, as in Hanna, the federal rule in question is quite as broad in scope as the conflicting state rule, while that in Ragan was not. ⁸ That being so, Hanna commands that unless Rule 15(c) is invalid because violative of the Rules Enabling Act, 28 U.S.C. § 2072 or the Constitution, see Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941), it controls decision without regard to any contrary state rule. There has been no suggestion that Rule 15(c) is not valid under the Rules Enabling Act or under the Constitution ⁹ and we therefore hold it controlling here.

We think the same result would be indicated were it to be considered that Rule 15(c) is not sufficiently broad in scope completely to cover the ground occupied by the state rule. In that situation, faced with "the typical, relatively unguided Erie choice," Hanna, 380 U.S. at 471, 85 S.Ct. at 1144, Hanna teaches that the choice between the two rules should not be made on a talismanic analysis of the outcome determination factor alone, but instead by consideration of the compatibility of the choice with Erie's twin aims: "discouragement of forum-shopping and avoidance of inequitable administration of the laws." Id. at 468, 85 S.Ct. at 1142.

Here, application of the federal rule could not encourage forum shopping, since at the time of forum choice the need for invocation of a relation back rule of pleading is simply not in the picture for a claimant. Similarly, a balancing of...