Mann v. De Moss, Civ. No. 10-97-C-2.

• Decision Date: 16 March 1971
• Docket Number: Civ. No. 10-97-C-2.
• Citation: 323 F. Supp. 1126
• Parties: J. R. MANN, Administrator of the Estate of Kenneth Wayne Mann, Deceased, and Walter Mathis and Cathy Mathis West, Co-Administrators of the Estate of Jimmy Wayne Mathis, Deceased, Plaintiffs, v. Roy Robert De MOSS, Defendant.
• Court: U.S. District Court — Southern District of Iowa

323 F. Supp. 1126

J. R. MANN, Administrator of the Estate of Kenneth Wayne Mann, Deceased, and Walter Mathis and Cathy Mathis West, Co-Administrators of the Estate of Jimmy Wayne Mathis, Deceased, Plaintiffs, v. Roy Robert De MOSS, Defendant.

Civ. No. 10-97-C-2.

United States District Court, S. D. Iowa, Central Division.

March 16, 1971.

John R. Ward, Des Moines, Iowa, for plaintiffs.

Ross H. Sidney and Henry A. Harmon, Des Moines, Iowa, for defendant.

MEMORANDUM AND ORDER.

HANSON, District Judge.

This ruling is predicated upon defendant's motion for judgment on the pleadings.

The pleadings on their face show the following uncontroverted facts: On September 10, 1968, two teen-age boys were killed as a result of a motorcycle-truck collision in Boone County, State of Iowa. Defendant herein is the truck driver and a citizen of Iowa. Plaintiffs herein are decedents' administrators; decedents were citizens of the State of Mississippi.

On September 1, 1970, plaintiffs, who were appointed administrators by a Mississippi state court, obtained authority from the Mississippi state court to initiate this suit in the United States District Court in Iowa or in such other court as might have jurisdiction.

On September 8, 1970, this action was commenced in this Court. On September 10, 1970, the applicable statute of limitations expired. On September 18, 1970, defendant moved to dismiss plaintiffs' complaint for failure to comply with Sections 633.148, 633.149, Iowa Code 1971:

633.148 Maintaining actions. When there is no administration of an estate nor a petition therefor pending, in this state, a foreign fiduciary may maintain actions and proceedings in this state subject to the requirements and conditions imposed upon nonresident suitors generally.

633.149 Filing of bond. At the time of commencing any action or proceeding in any court of this state, the foreign fiduciary shall file with the court an authenticated copy of his appointment, and of his official bond, if he has given a bond. If the court believes that the security furnished by him in the domiciliary administration is insufficient to cover the proceeds of the action or the proceeding, or for any other reason or cause, it may at any time order the action or proceeding stayed until sufficient security is furnished in the action or proceeding.

At that time, the Court allowed plaintiffs to amend their complaint to comply with the Iowa statutes and overruled the motion to dismiss.

Subsequent thereto, defendant filed an answer. The defendant then moved for judgment on the pleadings, in conformity with Rule 12(c), Fed.R.Civ.Pro., on the ground that the plaintiffs had failed to perfect jurisdiction in this Court within the period of the statute of limitations.

Plaintiffs argue that their amendment on September 21, 1970 should relate back to the time of the filing of the complaint. They rely principally on the fact that they had secured proper authorization from the Mississippi state courts prior to the running of the statute.

Defendant contends that regardless of when plaintiffs secured the authorization, their failure to comply with the Iowa statutes on foreign administrators at the time the complaint was filed is a complete bar to their action and that relation back is not permitted. In short, defendant contends that plaintiffs did not effectuate their causes of action within the time allowed by the statute of limitations.

The first issue the Court must resolve is whether it is bound by the Iowa statutes, sections 633.148 and 633.149, in resolving the issue at hand. There can be no dispute but that the federal court is bound by state law in determining the capacity of an individual to sue in a representative capacity. Rule 17(b), Fed.R.Civ.Pro., states that the capacity of an individual acting in a representative capacity to sue shall be determined by the law of the state in which the district court is held.

This rule finds its genesis in Moore v. Mitchell, 281 U.S. 18, 50 S.Ct. 175, 74 L.Ed. 673 (1930) wherein the Supreme Court stated that foreign administrators are without legal capacity to sue in the federal courts of the situs state.

Thus, this Court starts from the premise that Iowa law must be applied in determining whether plaintiffs' failure to comply with the Iowa statutes is a fatal defect.

The common-law rule in respect to the right of a foreign fiduciary to sue in states other than the appointing state was very simply that he could not. Judge Graven in Knoop v. Anderson, 71 F.Supp. 832, 842 (N.D.Iowa 1947), discusses the common-law rule in respect to foreign fiduciaries. Judge Graven states that "it was a well-settled rule that an executor or administrator cannot sue outside the state of his appointment" and further that "it has been the rule in Iowa from an early period that an executor or administrator cannot maintain a suit in this state by virtue of appointment in another state." Consequently, foreign fiduciaries were required as a condition precedent to bringing suit in another state to obtain ancillary letters of administration in the forum state. The basis for such a rule was to afford protection to the decedent's creditors in the forum state. Whenever the foreign fiduciary could show that local creditors would not be affected by the proceeding, the Iowa court did allow the foreign appointee to go forward even though not having obtained ancillary letters. Gross v. Hocker, 243 Iowa 291, 51 N.W.2d 466 (1952); Knight v. Moline, E. M. & W. R. Co., 160 Iowa 160, 140 N.W. 839 (1913).

The 60th Iowa General Assembly presumably rendered nugatory Iowa's common-law rule respecting foreign fiduciaries in enacting Chapter 633, Sections 633.148, 633.149. Section 633.148 states very clearly that foreign fiduciaries may maintain law suits in Iowa subject to certain requirements. Section 633.149 sets forth these requirements: At the time the action is commenced, the foreign fiduciary shall file an authenticated copy of his appointment and of his official bond, if any.

Unfortunately, these statutes are relatively recent and the Court has been unable to find any subsequent Iowa case law. The issue of whether plaintiffs' claims are barred by the statute of limitations for failure to comply with the statutory requirements appears, therefore, to be one of first impression in Iowa jurisprudence. The Court's task is, consequently, to render an informed prophecy as to how the Supreme Court of Iowa would decide if the issue were presented to that judicial body for determination.

The Court has researched this issue extensively and believes the following quotes from authoritative treatises provide a helpful starting point:

The majority of states now have statutes which permit foreign executors and administrators to sue, although they often require the foreign representative to comply with certain conditions, such as recordation of a copy of his letters in a specified office. In a federal court held in a state which has such a statute the foreign representative has capacity to sue by virtue of the last sentence of subdivision (b), but he should comply with conditions of the state statute. 3A Moore's Fed.Prac., para. 17.19 at 696.

Under the third sentence of Rule 17(b), the capacity of persons acting in a representative capacity * * * to sue or be sued is determined by the law of the state in which the district court is held.

This rule applies to executors and administrators. * * * Thus, if state law requires a foreign administrator to obtain ancillary letters of administration or to give bond before suing in a state court, a foreign administrator must comply with these requirements in order to sue in a federal district court in that state. 2 Barron & Holtzoff, Federal Prac. & Proc., Section 486.

It has been held that a domiciliary administrator who commences an action for wrongful death in a foreign jurisdiction and is refused the right to maintain such action until ancillary letters are obtained in the state of the forum may set up his ancillary administrative authority by amendment, even though the period of time to commence the action has intervened, so as to preclude the institution of a new action where the ancillary administration was required for the protection or convenience of the parties, since, in such a case, there is merely the substitution of one qualified representative for another, and not the commencement of a new action. However, in a jurisdiction in which a foreign domiciliary representative is held unauthorized to sue without taking out ancillary administration in the state of the forum, it has been held that an amendment may not be made, so as to change the source of the plaintiff's administrative authority, after the passage of the applicable period of limitations. 51 Am.Jur.2d, Limitations of Actions, section 261.

While the passages quoted only provide general guidelines, the cases cited in support thereunder are of some assistance to the Court in determining what the Iowa Supreme Court would do in a similar situation. The majority of the cases in comparable situations have held that the failure of the foreign fiduciary to comply with the state statute within the applicable statute of limitations is a complete bar to the maintenance of such action. See, e. g., Langford v. Merickel, 199 F.Supp. 424 (D. Minn.1961); Fitch v. Firestone, 184 F. Supp. 424 (R.I.1960); Seymour v. Johnson, 235 F.2d 181 (6th Cir. 1956); Gidinski v. McWilliams, 308 F.Supp. 772 (D.C.Or.1970). There are cases t...