Reynolds v. Union Pac. R.R. Co., 8:18CV303

• Decision Date: 09 July 2019
• Docket Number: 8:18CV303
• Parties: SUZANNE S. REYNOLDS, as wife of Douglas B. Reynolds, deceased; Plaintiff, v. UNION PACIFIC RAILROAD CO., Defendant.
• Court: U.S. District Court — District of Nebraska

SUZANNE S. REYNOLDS, as wife of Douglas B. Reynolds, deceased; Plaintiff, v. UNION PACIFIC RAILROAD CO., Defendant.

8:18CV303

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

July 9, 2019

FINDINGS, RECOMMENDATION AND ORDER

This FELA action was filed on June 27, 2018, by Suzanne S. Reynolds, described in the complaint as an adult who resided with decedent Douglas B. Reynolds. The complaint alleges exposure to toxins while working for the railroad caused or contributed to Douglas B. Reynolds' death. Douglas B. Reynolds died on December 29, 2016. (Filing No. 1 at CM/ECF p. 4, Filing No. 20, at CM/ECF p. 14).

The caption of the complaint identifies Suzanne S. Reynolds as the Personal Representative of the Estate of Douglas B. Reynolds. (Filing No. 1). This representation was then, and remains, untrue. The information of record establishes that Suzanne S. Reynolds did not file an application to be appointed as a personal representative until May 8, 2019, over eight months after this lawsuit was filed. (Filing No. 20, at CM/ECF pp. 4, 14-16).

On March 27, 2019, the parties notified the court that a personal representative had not been appointed to pursue the above-captioned lawsuit, along with several other toxic fume cases filed against UPRR by Plaintiff's counsel. Byrd v. Union Pacific Railroad Co., 8:18cv36, (Filing No. 34-1).¹ After affording Plaintiff's counsel four weeks to respond to UPRR's capacity objection by obtaining a personal representative for all previously filed cases, the undersigned judge entered an order on April 25, 2019 stating that as to all such lawsuits, "if letters of personal representation have not already been produced, the letters shall be produced to Defendant by May 16, 2019." Byrd v. Union Pacific Railroad Co., 8:18cv36, (Filing No. 34).

Plaintiff's counsel did not comply with this order. Instead, he produced a notice stating Suzanne S. Reynolds filed an Application for appointment of a personal representative on May 8, 2019. As of May 22, 2019, Plaintiff's counsel had not produced a copy of any order appointing a personal representative for the Douglas B. Reynolds estate or any letters of administration.

UPRR moved for sanctions, requesting dismissal of this case. (Filing No. 19). UPRR argues that absent appointment of a personal representative to litigate the Plaintiff decedent's claim, no lawsuit exists. As such, Defendant argues it should not be required to invest time and resources into this litigation.

Citing MO, KS, & TX. Ry. Co. v. Wulf, 226 U.S. 570 (1913), Plaintiff's counsel argues a decedent can pursue a FELA action prior to formal appointment of a personal representative; that "the district court may allow the amendment of the Complaint to allow the claim to proceed with the Plaintiff as the representative of the estate and that amendment relates back to the original filing." (Filing No. 22, at CM/ECF p. 3). Plaintiff's counsel states that "if leave isgranted, and a reasonable time allowed," he will further pursue obtaining the appointment of Suzanne S. Reynolds as representative of Douglas B. Reynolds' estate. (Filing No. 22, at CM/ECF p. 4).

Citing American R. Co. of Porto Rico v. Birch, 224 U.S. 547 (1912), Wulf also specifically held that under the FELA, a "plaintiff could not, although sole beneficiary, maintain the action except as personal representative." Wulf, 226 U.S. at 576. See Birch, 224 U.S. at 558 ("The national act gives the right of action to personal representatives only." (emphasis supplied)). Moreover, on April 19, 2019, before Plaintiff's counsel filed his brief on the pending motion, Judge Gerrard entered an order in another case handled by Plaintiff's counsel, Bettisworth v. BNSF, 8:17cv491, (Filing No. 29). In Bettisworth, BNSF moved to dismiss Plaintiff's complaint for lack of standing, arguing the action could not be pursued by a decedent railroad employee absent appointment of a personal representative. Judge Gerrard held that FELA actions by deceased railroad employees must be litigated through a personal representative. As Judge Gerrard explained, under the language of the FELA, a railroad employee, or "in case of the death of such employee, . . . his or her personal representative," may seek damages for injuries incurred during the course and scope of railroad employment. 45 U.S.C.A. § 51. Judge Gerrard did not, however, dismiss the case. Instead, he explained:

Rule 17(a)(3) precludes dismissal until after an objection and a reasonable time for substitution has been allowed. The plaintiff requested that he be given 90 days from the date of this Court's order to obtain appointment as the Personal Representative for the Estate of Cathy Jo Bettisworth and thereafter seek leave to file an amended complaint. Plaintiff's request is reasonable and will be granted.

Bettisworth v. BNSF, 8:17cv491, (Filing No. 29, at CM/ECF p. 4).

Unlike Bettisworth, UPRR is requesting dismissal as a sanction for failure to comply with a court order. On April 25, 2019, this court ordered Plaintiff's counsel to serve a letter of personal representation in this case by May 16, 2019. (Filing 17). The application for letters of personal representation was not filed until May 8, 2019. (Filing No. 20, at CM/ECF p. 14). Plaintiff's counsel has not explained the delay in filing an application for a personal representative appointment, and he has not complied with the court's April 25, 2019 order nor provided any explanation for his noncompliance. Rather, he argues that he will comply if afforded a reasonable amount of additional time.

In Bettisworth, Plaintiff's counsel stated 90 says was a reasonable amount of time to obtain the appointment of a personal representative. He requested and was granted 90 days. In this case, the court's order requiring service of a letter of personal representation was entered over two months ago, on April 25, 2019. (Filing 17). UPRR objected to Plaintiff's lack of standing over three months ago, with the parties first notifying the court that a personal representative had never been appointed in this case on March 27, 2019. (Filing 17-1). Under the facts presented, the court finds UPRR raised its objection to capacity over three months ago, and Plaintiff's counsel has already been afforded a reasonable time for substitution.

At the outset of this lawsuit, Plaintiff's counsel was fully aware that a personal representative was necessary. See e.g., Lafferty v. Union Pacific Railroad Co., Case No. 1:17 -cv-322-BLW (D. Idaho); Tindall v. Union Pacific Railroad Co., Case No. 1:17-cv-01221-JES-JEH (C.D. Ill.); Puffer v. Union Pacific Railroad Co., Case No. 1:17-cv-01222 (C.D.Ill.). And although Plaintiff's counsel argues that the lack of a personal representative will not impede the acquisitionof medical and other records to litigate this action, the court's records in other cases filed by Plaintiff's counsel contradict that statement. See Bettisworth v. BNSF, 8:17cv491, (Filing No. 23-1) (medical provider refused to honor requests for copies of records when accompanied by a medical release signed by a surviving spouse who was not appointed as a personal representative). See also, Jones v. Union Pacific Railroad Co., 8:18cv178 (Filing No. 21-1, at CM/ECF p. 3). The lack of a personal representative raises unnecessary hurdles to the discovery process which, in turn, interferes with this court's orders for progression to trial.²

I have considered sanctions other than dismissal for Plaintiff's failure to comply with this court's order. UPRR's attorney fees in conducting discovery to ascertain Suzanne S. Reynolds' capacity to sue, and its fees in filing the motion herein, will be awarded. Additional sanctions have been considered because under the facts presented—filing a lawsuit without the capacity to do so, and then, without any explanation, failing to timely correct the plaintiff's filing status when ordered to do so—an award of attorney fees is insufficient to address the gravity of the conduct. But whether identified as a dismissal or not, other commonly considered sanctions, such as establishing certain adverse facts astrue or certain claims dismissed would effectively result in dismissal of Plaintiff's case.

While dismissal is a harsh sanction, until a personal representative is appointed, the court, UPRR, and any provider of medical or other records are being asked to assume that Suzanne Reynolds has at least some interest in this litigation. The complaint does not explain her familial connection, if any, with Douglas B. Reynolds or state that she would be a beneficiary of his estate. Plaintiff's counsel filed this case over 10 months ago, and he has already been afforded over three months since UPRR objected to Suzanne Reynolds' capacity to sue and more than thirty days since the railroad filed a ...