Morrison v. New Orleans Public Service, Inc.

• Decision Date: 05 September 1969
• Docket Number: No. 27413 Summary Calendar.,27413 Summary Calendar.
• Citation: 415 F.2d 419
• Parties: Mrs. Francies MORRISON, Individually, and as Guardian of Glendon Morrison, et al., Plaintiffs-Appellants, v. NEW ORLEANS PUBLIC SERVICE INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

415 F.2d 419 (1969)

Mrs. Francies MORRISON, Individually, and as Guardian of Glendon Morrison, et al., Plaintiffs-Appellants, v. NEW ORLEANS PUBLIC SERVICE INC., Defendant-Appellee.

No. 27413 Summary Calendar.

United States Court of Appeals Fifth Circuit.

September 5, 1969.

Edmond R. Eberle, New Orleans, La., for appellants.

Charlton B. Ogden, II, A. R. Christovich, Jr., New Orleans, La., for appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

AINSWORTH, Circuit Judge:

The widow and five children of Freddie Morrison commenced this diversity action in the District Court for the wrongful death of Morrison against New Orleans Public Service Inc., a Louisiana corporation. Plaintiffs, California residents, alleged that Morrison had been negligently struck and killed in New Orleans, Louisiana, by a bus owned by Public Service. They sought to recover damages on the basis of article 2315 of the Louisiana Civil Code, La.Civ.Code Ann. art. 2315 (West Supp. 1968), for the loss allegedly caused them by the death of Morrison and for the pain, suffering, and mental anguish allegedly caused Morrison by the accident before he died. Public Service moved that the District Judge dismiss the action for lack of jurisdiction of the subject matter. The District Judge converted the motion into one for summary judgment which he granted. The sole issue presented by this appeal of plaintiffs is whether the District Court thus erred in dismissing without prejudice plaintiffs' claims against Public Service.¹

The District Judge ordered dismissal because he concluded that this action was not properly maintainable unless there were joined with plaintiffs three other children of Morrison who were residents of Louisiana and were not parties to this suit and whose own suit against Public Service for damages was then pending in a Louisiana state court. Since joinder of these absent children would have deprived the federal court of diversity jurisdiction, see Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed 435 (1806); Weems v. Louis Dreyfus Corporation, 5 Cir., 1967, 380 F.2d 545, the District Judge determined that plaintiffs' claims could not be vindicated in federal court. We agree with this determination and, therefore, affirm the judgment. The decision of the Supreme Court in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968), however, compels that we not accept the reasons that were stated by the District Judge for reaching a proper result.²

We understand the District Judge to have based his order of dismissal on the following premises: (1) there is a category of persons termed "indispensable parties"; (2) that category is defined in a diversity case by the substantive law of the state in which the federal forum lies, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); (3) the right of a person who is within that category to participate in the litigation in issue is a state-created substantive right; (4) as a matter of substantive Louisiana law, rights predicated upon article 2315 of the Louisiana Civil Code are held jointly and indivisibly by all the survivors entitled by that article to recover damages for the wrongful death of a single decedent, Reed v. Warren, 172 La. 1082, 136 So. 59 (1931); (5) the children of Morrison who are not parties to this action would be entitled to damages if his death is proved to be wrongful and are, therefore, "indispensable parties" to this action; (6) since joinder of these absent children would destroy federal diversity jurisdiction, the suit must be dismissed; (7) the federal compulsory-joinder rule, Fed.R. Civ.P. 19,³ "only deals with joinder of parties in suits over which the court has jurisdiction," and is not determinative of the issue whether the claims of Mrs. Morrison and five of the Morrison children may be litigated separately from the claims of the other Morrison children.⁴

Contrary to this view, we agree with plaintiffs that Rule 19 is applicable in the determination of whether their action in federal court may proceed without the joinder of the absent Morrison children.⁵ "* * * In a diversity case the question of joinder is one of federal law. To be sure, state-law questions may arise in determining what interest the outsider actually has, but the ultimate question whether, given those state-defined interests, a federal court may proceed without the outsider is a federal matter." Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 125 n. 22, 88 S.Ct. 733, 746 n. 22, 19 L.Ed.2d 936 (1968) (citations omitted). This federal question is answerable within the framework of Rule 19:

"The decision whether to dismiss (i. e., the decision whether the person missing is `indispensable\') must be based on factors varying with the different cases, some such factors being substantive, some procedural, some compelling by themselves, and some subject to balancing against opposing interests. Rule 19 does not prevent the assertion of compelling substantive interests; it merely commands the courts to examine each controversy to make certain that the interests really exist. To say that a court `must\' dismiss in the absence of an indispensable party and that it `cannot proceed\' without him puts the matter the wrong way around: a court does not know whether a particular person is `indispensable\' until it has examined the situation to determine whether it can proceed without him."

Id. at 118-119, 88 S.Ct. at 743; see Broussard v. Columbia Gulf Transmission Company, 5 Cir., 1968, 398 F.2d 885, 888; Hallman v. Safeway Stores, Incorporated, 5 Cir., 1966, 368 F.2d 400, 402.

Applying the Rule 19 criteria to this case, we conclude (1) that the Morrison children who were not parties to this action should have been joined with plaintiffs if joinder were feasible, (2) joinder of these absent children would deprive the federal court of subject-matter jurisdiction, (3) equity and good conscience dictate that this action should be dismissed for nonjoinder of the absent children, and (4) these absent children may be described with the conclusory term "indispensable parties." Thus we do not disturb the judgment of the District Court. We reach our conclusions as follows.

First, the Morrison children who were not parties to this action have a direct interest in plaintiffs' claim against Public Service for the damages to which Morrison would have been entitled had he survived. Article 2315 of the Louisiana Civil Code transmits Morrison's claim to his widow and all his children. Litigation of this claim in federal court would deprive the absent children of a share in the recovery, if any, of damages for Morrison's pain and suffering because Louisiana permits only a single lump-sum damage award for the pain and suffering of a wrongfully killed person, and this award must be obtained in a single action to which the surviving spouse and all the children are parties. See, e. g., Reed v. Warren, 172 La. 1082, 136 So. 59 (1931). Under Rule 19(a), therefore, the absent Morrison children were "persons to be joined if feasible." Since joinder of these children would deprive the federal court of jurisdiction, Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806), the question presented to the District Court was whether the action should proceed with only the parties then before the Court. Fed.R. Civ.P. 19(b).

Turning to this question, under the "equity and good conscience" test of Rule 19(b), we note factors in this case which compel dismissal of the federal action for nonjoinder. Primary among these factors is the well-settled law of Louisiana which pertains to wrongful death actions based on article 2315 of the Louisiana Civil Code.⁶ As the Supreme Court has stated, "Rule 19 does not prevent the assertion of compelling substantive interests; it merely commands the courts to examine each controversy to make certain that the interests really exist." Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 119, 88 S.Ct. 733, 743, 19 L.Ed.2d 936 (1968). Under the law of Louisiana the survivors of a decedent have but one cause of action based upon article 2315. Reed v. Warren, 172 La. 1082, 136 So. 59 (1931). This single cause of action encompasses the individual claims of the survivors for damages caused them by the loss of the decedent as well as the single, indivisible claim for the pain and suffering of the decedent which is transmitted by article 2315 to his survivors. Louisiana courts hold that a survivor may not split his individual claim for damages and the decedent's transmitted claim into separate actions. Reed v. Warren, supra; see McConnell v. Travelers Indemnity Company, 5 Cir., 1965, 346 F.2d 219, 223. The survivor who litigates only one of the two article 2315 claims waives his right to litigate the other. La.Code Civ.Proc. art. 5 (West 1960). Moreover, all the survivors of a single decedent must litigate their individual claims for his wrongful death in one suit, because these individual claims were established by article 2315 as parts of a single, indivisible cause of action. In short, the law of Louisiana is that a single wrongful death results in a single cause of action belonging jointly to all survivors of the decedent who are entitled by statute to damages.

Plaintiffs argue that these Louisiana rules are "procedural" rather than "substantive" and that, as state procedural rules, they do not apply to the question whether this action must be dismissed for nonjoinder. We cannot accept this argument. Plaintiffs claim rights created by article 2315 of the Louisiana Civil Code, but that article gives Public Service the right to have all survivors' claims arising from the death of Morrison litigated in one action. Reed v. Warren, supra. We must apply article 2315 as we find it, McConnell v. Travelers Indemnity Company, 5 Cir., 1965, 346 F.2d 219, 224, and this application requires...