Holmes v. Union Pac. R.R. Co., No. SC 98673

• Court: United States State Supreme Court of Missouri
• Writing for the Court: GEORGE W. DRAPER III, Chief Justice
• Citation: 617 S.W.3d 853
• Decision Date: 08 March 2021
• Docket Number: No. SC 98673
• Parties: Carolyn HOLMES, Personal Representative for the Estate of Robert V. Holmes, Appellant, v. UNION PACIFIC RAILROAD CO., Respondent.

617 S.W.3d 853

Carolyn HOLMES, Personal Representative for the Estate of Robert V. Holmes, Appellant,
v.
UNION PACIFIC RAILROAD CO., Respondent.

No. SC 98673

Supreme Court of Missouri, en banc.

Opinion issued March 8, 2021

Holmes was represented by Jonathan Sternberg of Jonathan Sternberg, Attorney, PC in Kansas City, (816) 292-7020.

Union Pacific was represented by Daniel J. Hassing and Anne Marie O'Brien of Lamson, Dugan & Murray LLP in Omaha, Nebraska, (402) 397-7300; and David A. Dick of Thompson Coburn LLP in St. Louis, (314) 552-6000.

GEORGE W. DRAPER III, Chief Justice

Carolyn Holmes (hereinafter, "Holmes") filed a wrongful death lawsuit in her purported capacity as the personal representative of the estate of her husband, Robert V. Holmes (hereinafter, "Decedent"), against Union Pacific Railroad Company (hereinafter, "Union Pacific") under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51, et seq. (hereinafter, "FELA"). Union Pacific moved to dismiss Holmes’ petition because she was not appointed the personal representative of Decedent's estate as required under 45 U.S.C. § 51 prior to filing suit. The circuit court granted Holmes thirty days to obtain the appropriate appointment and amend her petition. Holmes obtained the letters of administration appointing her the personal representative of Decedent's estate beyond the thirty-day deadline, and the circuit court dismissed her petition.

Holmes argues on appeal the circuit court abused its discretion in failing to grant her leave to amend her petition beyond the thirty-day deadline and dismissing her cause of action.¹ This Court holds the circuit court did not abuse its discretion in overruling Holmes’ motion for leave to amend her petition out of time because she failed to demonstrate excusable neglect justifying the late filing. This Court affirms the circuit court's judgment dismissing Holmes’ petition.

Factual and Procedural Background

Decedent was employed by Union Pacific as a fireman and conductor for forty years. Decedent contracted lung cancer and died in July 2015. On April 29, 2018, Holmes brought a wrongful death lawsuit against Union Pacific under FELA, alleging Decedent's cancer and death were caused or contributed to by his exposure to toxic substances and carcinogens during his employment. The petition's caption named Holmes as the personal representative of Decedent's estate, and Holmes characterized herself as the personal representative twice in the petition. Holmes also executed medical record release authorizations in her purported capacity as the personal representative.

In November 2018, Union Pacific's counsel contacted Holmes’ counsel due to difficulty obtaining Decedent's medical records. Union Pacific requested a copy of the letters of administration appointing Holmes as the personal representative to accompany the medical authorizations. Holmes’ counsel responded that "no official estate has been opened," and he planned to "petition the [c]ourt," but acknowledged Union Pacific would file a motion to dismiss.

617 S.W.3d 856

On December 21, 2018, Union Pacific moved to dismiss Holmes’ petition because she was not the personal representative of Decedent's estate at the time she commenced the action or as the action proceeded. Sixteenth Circuit Court Local Rule 33.5.1 required Holmes’ response to Union Pacific's dismissal motion to be filed by December 31, 2018.

On January 25, 2019, Holmes moved for leave to file a response out of time due to excusable neglect pursuant to Rule 44.01(b). Holmes’ counsel believed he had thirty days in which to respond and had "no inkling" the response was due earlier under the local rule. Holmes argued her suit should not be dismissed because she did not know she had a cause of action against Union Pacific at the time Decedent died. Holmes further contended the lack of proper appointment was not fatal to her lawsuit because the circuit court could allow her to obtain the letters of administration and amend her petition so as to relate back to her original petition. Holmes stated she would "instantly" formalize her status as the personal representative if the circuit court granted leave and permitted her a reasonable time to obtain the appointment.

Union Pacific opposed Holmes’ motion for leave to file a response out of time, alleging ignorance of the local rule deadline did not constitute excusable neglect and the response was late based on the typical thirty-day deadline. Union Pacific further argued it repeatedly has litigated the failure to obtain proper appointment with Holmes’ counsel in at least five other cases, demonstrating this was a recurring issue of which Holmes’ counsel had actual knowledge.

The circuit court sustained Holmes’ motion for leave to file a response out of time "despite [her] inability to identify and abide by local rule." On March 4, 2019, the circuit court issued a thirty-day stay in the proceedings for Holmes to file an amended petition "with all claims conforming to Missouri and Local Rule. Following the conclusion of the thirty (30) days, the [circuit court] will consider all plead [sic] matters, as it relates to the motion to dismiss."

On April 1, 2019, Holmes filed a court memorandum indicating she opened Decedent's estate and submitted her application to be appointed the personal representative. Holmes did not file an amended petition on April 3, 2019, as required by the circuit court's March 4, 2019, order.

Union Pacific renewed its motion to dismiss Holmes’ petition because she had not been appointed the personal representative of Decedent's estate by the circuit court's deadline. Union Pacific alleged Holmes only filed the pleadings necessary to open the estate on March 25, 2019, despite the fact she should have secured the appointment prior to the lawsuit being filed, at any point after filing, or when Union Pacific made Holmes’ counsel aware of the issue in November 2018. Union Pacific noted Holmes’ inability to meet deadlines impacted the trial setting, the course of discovery, and Union Pacific's ability to determine causation, obtain experts, and mount defenses.

On April 9, 2019, the probate division issued letters of administration appointing Holmes the personal representative of Decedent's estate. On April 10, 2019, Holmes moved to file an amended petition out of time, again pleading excusable neglect occurred under Rule 44.01(b). Holmes maintained she prepared the request for the letters of administration in the time the circuit court required but faulted the probate clerk for taking fifteen days to perform a ministerial task. Holmes argued Union Pacific would suffer no prejudice if the circuit court granted leave to amend because it knew the estate was opened and

617 S.W.3d 857

the letters of administration were pending. Union Pacific disagreed, arguing it was prejudiced due to the delay in discovery, taking depositions, and in retaining experts regarding causation. Union Pacific also noted Holmes waited twenty-one days to file the appropriate pleadings and could not fault the probate division for performing its due diligence in issuing the letters of administration.

The circuit court overruled Holmes’ motion to file her amended petition out of time due to her inability to abide by the deadline imposed in its March 4, 2019, order. The circuit court dismissed Holmes’ petition without prejudice, explaining the probate division issued the letters of administration more than one year after Decedent's death and Holmes failed to be appointed the personal representative prior to filing the lawsuit or in the time proscribed by the March 4, 2019, order.

Holmes filed a motion for reconsideration citing Rule 75.01. Holmes argued she sought to file her amended petition as soon as the letters of administration were issued and dismissing her action without prejudice extinguished any potential legal remedy Holmes had against Union Pacific because the statute of limitation had expired. Holmes argued these grounds constituted good cause for the circuit court to reopen the action and amend its dismissal order. Union Pacific opposed the motion and argued Holmes intentionally filed her petition without first being appointed the personal representative despite knowing a proper appointment was necessary. Union Pacific reiterated it had litigated this issue in at least five other cases with Holmes’ counsel before the petition at issue was filed. Holmes replied the only issue was whether she demonstrated good cause to reopen the judgment to avoid a manifest injustice. Holmes conceded she could have opened the estate at any point after Decedent's death and she waited until the March 4, 2019, order to do so. Holmes claimed, however, the reason for the delay was neither intentionally nor recklessly designed to impede the judicial process. For the first time, Holmes...