Miller v. Perry

• Decision Date: 09 February 1972
• Docket Number: No. 13858.,13858.
• Citation: Miller v. Perry, 456 F.2d 63 (4th Cir. 1972)
• Parties: Lonnie MILLER, Administrator of the Estate of Albert Miller, Jr., deceased and Albert Miller, Sr., Appellants, v. Ely J. PERRY, Jr., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

456 F.2d 63 (1972)

Lonnie MILLER, Administrator of the Estate of Albert Miller, Jr., deceased and Albert Miller, Sr., Appellants, v.Ely J. PERRY, Jr., Appellees.

No. 13858.

United States Court of Appeals, Fourth Circuit.

February 9, 1972.

Douglas P. Connor, Mount Olive, N.C. (Darris W. Koonce, Trenton, N.C., on brief), for appellants.

A. H. Jeffress, Kinston, N.C.(Whitaker, Jeffress & Morris, Kinston, N.C., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and WINTER and RUSSELL, Circuit Judges.

HAYNSWORTH, Chief Judge:

The question is the existence of diversity jurisdiction in an action under the North Carolina Wrongful Death Act(N.C.Gen.Stat. § 28-173) to recover for the benefit of nonresident distributees for the death of a nonresident, brought by a North Carolina ancillary administrator against North Carolina defendants.We conclude that the citizenship of the administrator does not defeat diversity and reverse the order of the District Court dismissing the action, 307 F.Supp. 633.

Albert Miller, Jr., a minor citizen of Florida, died in North Carolina, allegedly through the fault of the Perrys.His father was duly qualified in Florida as administrator of his estate and subsequently brought suit in his representative capacity in the United States District Court for the Eastern District of North Carolina under the Wrongful Death Act.¹

The District Court dismissed the action on its own motion on the ground that the plaintiff was not qualified in North Carolina as the administrator of the decedent's estate.As a nonresident, he lacked legal capacity to qualify, since North Carolina law requires that the administrator in such cases must be a resident of the state.²The Court concluded that the action must be dismissed under our decision in Fennell v. Monongahela Power Company, 4 Cir., 350 F.2d 867, upholding the applicability in federal courts of a similar requirement of the state of West Virginia.

Thereafter, and within the statutory period of limitations, Lonnie Miller, the grandfather of the decedent and a resident of North Carolina, was duly qualified pursuant to N.C.Gen.Stat. § 28-1(4) as ancillary administrator.A second action was then brought in the District Court by him in which the father, as principal administrator, joined.This action, assigned to a different judge, was also dismissed.The Court held that the resident ancillary administrator was the real party in interest in the litigation and dismissed the action for want of diversity of citizenship.The plaintiffs appealed from that dismissal.

In several caseswe have sustained the validity of state statutes requiring that actions for wrongful death be prosecuted in the name of a resident representative and have held the requirement applicable in the federal courts.³Heretofore, however, we have not been confronted with a contention that such statutes, in light of the federal rules for determining diversity, may not be applied under the Supremacy Clause when the effect is to defeat federal jurisdiction.Nor have we had occasion to consider whether the resident representative is the real party in interest, whose citizenship controls the diversity determination under currently accepted federal standards.

Had North Carolina attempted explicitly to limit the availability of her Wrongful Death Act to actions in her own state courts, there may be little doubt that we would find the limitation unconstitutional under the Supremacy Clause, as Wisconsin's attempt was, long ago.⁴

It is said that the conjunction of North Carolina's requirements that actions for wrongful death be prosecuted in the name of a personal representative and that an administrator may not be appointed unless he is a resident of North Carolina achieves the same result, if the noncitizen decedent dies intestate.It does, of course, if we assume that the rule of Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233, is inflexible and constitutionally mandated.The result is that access to a district court in North Carolina is denied to a wrongful death claimant, whose intestate decedent died of injuries sustained in that state, if the decedent was a citizen of another state, while preserving access to federal courts if the decedent was a North Carolinian and the defendant a noncitizen.

The result, however, is not dependent alone upon the conjunction of North Carolina's requirements.However minimal North Carolina's interest in her requirement that an administrator be a resident,⁵ her statutes do not foreclose access to a federal court on behalf of the beneficiaries of a noncitizen dying of injuries sustained by the alleged fault of a North Carolinian.The result flows only when Mecom is injected as an inflexible, essential ingredient.If its rule is not constitutionally required, if it is subject to federal change by congressional action or judicial decision, North Carolina's statutory scheme should not bear the brunt of the charge of invidious discrimination.If the federal courts, in determining the presence of a controversy between citizens of different states as a foundation of their jurisdiction, are free to look to congressional acts or their own decisions to determine the jurisdictional significance of the citizenship of the decedent, his beneficiaries or personal representatives, a state is not to be faulted for narrow limitations on the appointment of a personal representative.If the presence of any limitation of federal diversity jurisdiction is dependent upon an open federal choice to hinge federal determination of diversity upon the citizenship of the representative rather than upon other alternates, it cannot be attributable entirely to the statestatutes.Unless Mecom is both a viable and constitutional imperative, therefore, we may give full force and recognition to North Carolina's statutes and her interests without attribution to her of impermissible dominion and control over federal jurisdiction.

Mecom was an extraordinary case.Three times an Oklahoma widow and administratrix of her husband's estate filed an action for wrongful death in an Oklahoma state court against the Louisiana defendant.Each time the defendant removed the action to the federal court, and each time the plaintiff secured a voluntary dismissal.Through her lawyer, she then secured the services as administrator of a Louisiana citizen, who promptly appointed her his Oklahoma delegate, in whose name she then refiled the wrongful death action in Oklahoma.Again the action was removed, and, after a trial on the merits and judgment for the defendant, the Supreme Court held that a motion to remand to the state court had been erroneously denied.Whether there was diversity of citizenship between the Louisiana defendant and the plaintiff, it said, was determinable by reference to the new representative's Louisiana citizenship rather than to that of the Oklahoma widow or the beneficiaries.

Mecom, however, did not decide that the citizenship of the personal representative in wrongful death actions was constitutionally or inflexibly the criterion for ultimate determination of diversity.Its assumption was that the personal representative was clothed with such responsibilities and authority that he, under federal standards, was the real party in interest.That assumption has been greatly undermined by the recent recognition in Kramer v. Caribbean Mills, 394 U.S. 823, 89 S.Ct. 1487, 23 L.Ed.2d 9, that the duties and responsibilities of administrators should be taken into account in federal determinations of the relevancy of the citizenship of such a personal representative to the presence of diversity jurisdiction.Kramer's recognition of a need to re-examine Mecom, and the relevance of the roles of administrators, frees us from a blind invocation of Mecom's result.At the very least, Kramer authorizes attention to the substantive relation of the administrator, the beneficiaries and others to the controversy before an undiscriminating decision that the citizenship of a representative controls the determination of diversity jurisdiction.

Neither Mecom nor its predecessors in the Supreme Court⁶ dealt with the significance of the citizenship of a resident administrator reluctantly procured by out-of-state beneficiaries for the sole purpose of compliance with state law.The lower courts, including this one,⁷ read it broadly to include a ritualistic control of the result in this kind of situation,⁸ but the Supreme Court has not done so, as Kramer demonstrates.

Kramer, to be sure, did not deal with this situation either.The Court, there, was concerned with the effect of an assignment of a claim by an alien to a citizen of Texas for the purpose of creating diversity of citizenship.Though the validity of the assignment under state law was recognized, it was held improper or collusive within the meaning of 28 U.S.C.A. § 1359 and the assignee's attempted invocation of federal diversity jurisdiction unsuccessful.In its opinion, however, the Court took note of another, popular device for the creation of pretensive diversity, the appointment of an out-of-state representative to prosecute a claim in an otherwise local controversy.It did not condemn the use of that device, for that was not the question in Kramer.Indeed, it suggested some differences between an assignment of a claim to a citizen of another state and the appointment of such a person as a personal representative to prosecute a claim.Here, the significance of Kramer lies in its statement that the effect, in the diversity determination, of the appointment of an out-of-state representative is to be found after consideration of his duties and responsibilities and the clear reservation of the question.Earlier, one may have read Mecom as holding that the citizenship of the administrator, always and under all circumstances, governed the determination of diversity of citizenship, but such a thought could not...