Esposito v. U.S.

• Decision Date: 26 May 2004
• Docket Number: No. 03-3183.,03-3183.
• Citation: 368 F.3d 1271
• Parties: Raymond Elio ESPOSITO, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1271

368 F.3d 1271

Raymond Elio ESPOSITO, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 03-3183.

United States Court of Appeals, Tenth Circuit.

May 26, 2004.

Pantaleon Florez, Jr., Topeka, KS, for Plaintiff-Appellant.

Eric F. Melgren, United States Attorney, Christopher Allman, Assistant United States Attorney, Kansas City, KS, for Defendant-Appellee.

Before EBEL, BALDOCK, and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

INTRODUCTION

The deceased Raymond Elio Esposito, through his counsel, appeals from the district court's order dismissing his complaint for wrongful death filed pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (FTCA). Mr. Esposito alleges that his death was the result of negligence by United States government employees. The district court dismissed the suit because Mr. Esposito is deceased and therefore lacks capacity to pursue an action for wrongful death. It further denied the plaintiff's motion to substitute Mr. Esposito's surviving wife as administratrix and plaintiff, reasoning that while his counsel had made an "honest" mistake in naming a decedent as plaintiff, the mistake was not an "understandable" one that would justify substitution under Fed.R.Civ.P. 17(a).

Rule 17(a) requires the district court to provide the party bringing an action with a reasonable time after objection to substitute the real party in interest. While the commentary to the Rule refers to "honest" and "understandable" mistakes in naming the appropriate party, we have never barred a party from substitution merely because his "honest" mistake was not also "understandable." The commentary to the Rule should not be applied in an overly formalistic manner where, as here, the interests of justice may be compromised by failure to grant leave to amend. We further reject the United States' argument that the attempted suit by a decedent was a nullity, and therefore provides nothing to relate back to. We hold that the district court abused its discretion in denying substitution of Mr. Esposito's wife as plaintiff pursuant to Rule 17(a), based on counsel's failure to show that his "honest" mistake was also "understandable." We therefore reverse the order of dismissal, and remand for further proceedings.

FACTS

Mr. Esposito's complaint recites that he died on March 12, 1999, while in the custody of the United States Bureau of Prisons. The complaint alleges that his death was the result of a negligent failure to provide him with adequate medical attention during his incarceration at the United States Penitentiary in Leavenworth, Kansas. On March 7, 2001, his surviving spouse, Yolanda Esposito, filed an administrative tort claim for wrongful death with the Federal Bureau of Prisons and Department of Justice. Aplt.App. at 90. The United States denied her claim on August 23, 2001. Id. at 89.

Mrs. Esposito's attorney filed this complaint for wrongful death on February 22, 2002, the day before the six-month deadline for filing suit in federal district court expired. Id. at 6; see 28 U.S.C. §§ 2401(b), 2675(a). In spite of the fact that he had named Mrs. Esposito as the claimant in the administrative tort claim, counsel named the late Mr. Esposito as the sole plaintiff in the federal district court complaint. The United States responded with a motion to dismiss for lack of subject matter jurisdiction, contending that the action was void and a nullity. On March 7, 2003, the district court dismissed the action for lack of subject matter jurisdiction, but granted counsel until March 17 to show cause why the court should substitute Mrs. Esposito as the plaintiff.

Mr. Esposito's attorney filed a response to the order to show cause, in which he explained (1) that he made an honest mistake because he incorrectly believed that only the person who suffered the harm was entitled to be named as the plaintiff in the suit; (2) that this was his first wrongful death suit; and (3) that the United States would not be prejudiced if Mrs. Esposito were substituted for Mr. Esposito as plaintiff. The district court accepted the attorney's characterization of the mistake as "honest," but found that he had failed to show that the mistake was "understandable" so as to justify substitution of Mrs. Esposito as plaintiff.

ANALYSIS

1. Standard of review

We review the district court's dismissal for lack of subject matter jurisdiction de novo, and its findings of jurisdictional facts, if any, for clear error. Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir.2003). The district court's decision whether to join or substitute a party as a "real party in interest" under Fed.R.Civ.P. 17(a) is reviewed for an abuse of discretion. Scheufler v. Gen. Host Corp., 126 F.3d 1261, 1270 (10th Cir.1997); Metro. Paving Co. v. Int'l Union of Operating Eng'rs, 439 F.2d 300, 306 (10th Cir.1971).

2. Procedural difficulties occasioned by naming Mr. Esposito as plaintiff

We first consider, briefly, whether substitution is in fact necessary or whether the action can be pursued in the name of Mr. Esposito. We discern four difficulties that must be overcome if this action is to go forward. First, Mr. Esposito may lack capacity to maintain this suit in his own name. Second, as a decedent he may no longer be the real party in interest. Third, he has never filed an administrative claim in his own name. Fourth, Mrs. Esposito, the party who did file an administrative claim, has not filed a timely action in federal district court as required by 28 U.S.C. §§ 2401(b) and 2675(a). We consider each of these difficulties in turn.

a. Capacity to sue

Federal Rule of Civil Procedure 17 governs both the determination of a party's capacity to sue and be sued and his or her status as the real party in interest. The "real party in interest" principle requires that an action "be brought in the name of the party who possesses the substantive right being asserted under the applicable law." 6A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1541 at 321 (2d ed.1990) (hereinafter Federal Practice & Procedure). Capacity, by contrast, refers to "a party's personal right to litigate in a federal court." Id. § 1542, at 327.

Rule 17(b) provides that issues of capacity are determined by the law of the individual's domicile. The parties do not dispute the district court's determination that Mr. Esposito was domiciled in Kansas and that Kansas law should be applied to determine the question of capacity. Under Kansas law, a decedent lacks capacity to sue or be sued. Cf. Moore v. Luther, 29 Kan.App.2d 1004, 35 P.3d 277, 279 (2001) (stating decedent cannot be sued). Therefore, Mr. Esposito could not bring this action on his own behalf.

b. Real party in interest

Rule 17(a) provides that "[e]very action shall be prosecuted in the name of the real party in interest." Since Mr. Esposito could not bring this action, his right had to be asserted, if at all, by a party on whom the right devolved at his death. The identity of this real party in interest is determined by referring to the governing substantive law. See 6A Federal Practice & Procedure § 1543, at 334; Audio-Visual Mktg. Corp. v. Omni Corp., 545 F.2d 715, 719 (10th Cir.1976).

The FTCA governs Mr. Esposito's wrongful death suit. Pursuant to the FTCA, "[t]he United States shall be liable [with respect to] tort claims, in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674, "in accordance with the law of the place where the act or omission occurred," id. § 1346(b)(1). Ayala v. United States, 49 F.3d 607, 610 (10th Cir.1995). We therefore look to Kansas law to determine who is the proper party to bring a wrongful death action. See, e.g., Goodman v. United States, 298 F.3d 1048, 1054 (9th Cir.2002) (looking to state law to determine appropriate party to bring wrongful death action under FTCA).

Kansas Statute Annotated § 60-1902 provides that the decedent's heirs at law are the appropriate parties to a wrongful death action:

The action may be commenced by any one of the heirs at law of the deceased who has sustained a loss by reason of the death. Any heir who does not join as a party plaintiff in the original action but who claims to have been damaged by reason of the death shall be permitted to intervene therein. The action shall be for the exclusive benefit of all of the heirs who has [sic] sustained a loss regardless of whether they all join or intervene therein, but the amounts of their respective recoveries shall be in accordance with the subsequent provisions of this article.

The district court thus had grounds to dismiss the action, purportedly brought by Mr. Esposito. Only Mr. Esposito's heirs at law were "real parties in interest" entitled to bring the action.

c. Mr. Esposito's failure to file a claim

A further difficulty, this time jurisdictional, is presented by Mr. Esposito's failure to file a timely administrative claim for his own wrongful death, as required by 28 U.S.C. § 2675(a). Mr. Esposito has failed to exhaust his administrative remedies and may not pursue this action in his own name. See, e.g., Cadwalder v. United States, 45 F.3d 297, 300-02 (9th Cir.1995).

d. Mrs. Esposito's failure to file a timely suit

Finally, Mrs. Esposito, who did file an administrative claim for wrongful death, failed to file suit within the six months provided by statute. "A district court does not have jurisdiction to hear a tort claim against the United States unless the claimant files a complaint in federal court within six months after final agency decision." Goodman, 298 F.3d at 1053. Therefore, as it was presented, the district court lacked subject matter jurisdiction over this suit.¹

3. Substitution

The fact that Mr. Esposito cannot proceed with this suit does not end our inquiry, however. Rule 17(a) requires the district court to grant leave to substitute or join the real party in interest...