Camp Lejeune Water Litigation v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

No. 7:23-CV-897

IN RE: )

CAMP LEJEUNE WATER LITIGATION _ ORDER

THIS DOCUMENT RELATES TO:

Merritt v. United States, No. 7:23-CV-1367-D )

OnNovember 9, 2023, Deborah Merritt (“Merritt” or “plaintiff’) moved for partial summary

judgment [D.E. 41] and filed amemorandum in support [D.E. 42], a statement of material facts [D.E.

43], and an appendix [D.E. 44]. Merritt asks the court to hold that she qualifies as a “legal

representative” who may bring an action under subsection 804(b) of the Camp Lejeune Justice Act

of 2022 (““CLJA”). On December 7, 2023, the United States of America (“United States” or

| “defendant”) responded in opposition [D.E. 71] and filed a a of material facts [D.E. 72] and

an affidavit in opposition [D.E. 73]. On December 21, 2023, Merritt replied [D.E. 94]. As explained

below, the court grants Merritt’s motion for partial summary judgment and holds that Merritt □

qualifies as a legal representative who may bring an action under the CLJA and that Merritt need not

qualify as an ancillary administrator in North Carolina or open an estate in North Carolina to pursue

relief under subsection 804(b) of the CLJA.

I,

In August 2022, Congress enacted and President Biden signed the CLJA. See Pub. L. No.

117-168, § 804, 136 Stat. 1759, 1802-04. On August 10, 2022, the CLJA became effective.

Subsection 804(b) states that “fa]n individual, including a veteran (as defined in section 101 of title

38, United States Code), or the legal representative of such an individual, who resided, worked, or

otherwise exposed (including in utero exposure) for not less than 30 days during the period

beginning on August 1, 1953, and ending on December 31, 1987, to water at Camp Lejeune, North

Carolina, that was supplied by, or on behalf of, the United States may bring an action in the United

States District Court for the Eastern District of North Carolina to obtain appropriate relief for harm

that was caused by exposure to the water at Camp Lejeune.” Id. § 804(b).

Merritt is the adult daughter of Colonel Richard Marsden (“Colonel Marsden”). See PSMF

[D.E. 43] J 1; DSMF [D.E. 72] 7 1. From July 6, 1964, to July 12, 1966, Colonel Marsden was

stationed at Camp Lejeune. See [D.E. 44-3] 3. On March 24, 2023, Colonel Marsden, a Missouri

resident, filed an administrative claim with the Navy under the CLJA. See PSMF 2; DSMF 2;

CLJA § 804(h). On June 22, 2023, Colonel Marsden died. See PSMF 3; DSMF 3. Colonel

Marsden’s adult daughter and his spouse survived him. See DSMF 45. Missouri probated Colonel

Marsden’s will, and on July 28, 2023, the 21st Judicial Circuit Court in St. Louis County, Missouri,

issued letters testamentary to Merritt. See PSMF 7 4; DSMF § 4. In the letters testamentary, the

Missouri court appointed Merritt as personal representative to administer Colonel Marsden’s estate.

See [D.E. 44-5]. On October 3, 2023, Merritt filed an action as the “legal representative” of Colonel

Marsden seeking “appropriate relief” under subsection 804(b) of the CLJA. See [D.E. 1].

TL.

Summary judgment is appropriate when, after reviewing the record as a whole, the court

determines that no genuine issue of material fact exists and the moving party is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56(a); Scott v. Harris, 550 U.S. 372, 378, 380 (2007);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The party seeking summary

1 This citation is to Merritt’s individual case, case number 7:23-CV-1367-D.

judgment must initially demonstrate the absence of a genuine issue of material fact or the absence

of evidence to support the nonmoving party’s case. See Celotex Corp. V. Catrett, 477 US. 317, 325

(1986). Once the moving party has met its burden, the nonmoving party may not rest on the

allegations or denials in its pleading, see Anderson, 477 U.S. at 248-49, but “must come forward

with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis and quotation omitted). A trial court

reviewing a motion for summary judgment should determine whether a genuine issue of material fact

for trial. See Anderson, 477 U.S. at 249. In making this determination, the court must view

the evidence and the inferences drawn therefrom in the light most favorable to the nonmoving party.

See Harris, 550 U.S. at 378.

A genuine issue of material fact exists if there is sufficient evidence favoring the nonmoving

party for the factfinder to return a verdict for that party. See Anderson, 477 U.S. at 249. “The mere

existence of a scintilla of evidence in support of the [nonmoving party’s] position [is]

insufficient . . . .” Id. at 252; see Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) (“The

nonmoving party, however, cannot create a genuine issue of material fact through mere speculation

or the building of one inference upon another.”). Only factual disputes that affect the outcome under

substantive law properly preclude summary judgment. See Anderson, 477 US. at 248.

A.

“An individual, including a veteran (as defined in section 101 of title 38, United States

Code), or the legal representative of such an individual, who resided, worked, or was otherwise

exposed (including in utero exposure) for not less than 30 days during the period beginning on

August 1, 1953, and ending on December 31, 1987, to water at Camp Lejeune, North Carolina, that

was supplied by, or on behalf of, the United States may bring an action in the United States District

Court for the Eastern District of North Carolina to obtain appropriate relief for harm that was caused

by exposure to the water at Camp Lejeune.” CLJA § 804(b) (emphasis added). The CLJA does not

define a “legal representative.” Thus, the court begins with the text and reviews the plain meaning

of “legal representative.” See, e.g., Southwest Airlines Co. v. Saxon, 596 U.S. 450, 457-58 (2022);

Facebook, Inc. v. Duguid, 592 U.S. 395, 402-04 (2021); Tanzin v. Tanvir, 592 U.S. 43, 48-49

(2020); Nat’l Coal. For Students With Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d 283,

289 (4th Cir. 1998). In doing so, the court examines dictionaries used when Congress enacted the

CLIJA. See, e.g., Allen, 152 F.3d at 289.

A “legal representative” is (1) a legal heir; (2) an executor, administrator, or other legal

representative; or (3) someone who manages the legal affairs of another because of death. See

Representative, Black’s Law Dictionary (11th ed. 2019) (defining “lepal representative” to include

“lawful representative” or “personal representative”). This definition of “legal representative”

comports with the definition adopted in non-CLJA cases. See, e.g., Fed. Treasury Enter.

Sojuzplodoimport v. SPI Spirits Ltd., 726 F.3d 62, 80 (2d Cir. 2013) (analyzing the term “legal

representative” in the Lanham Act); Gustafson v. zumBrunnen, 546 F.3d 398, 402 (7th Cir. 2008)

(analyzing the term “legal representative” in 28 U.S.C. § 1332(c)(2) in a diversity action applying

Wisconsin law); Inre Casco Chem. Co., 335 F.2d 645, 651 (5th Cir. 1964) (analyzing the term “legal

representative” in Federal Rule of Civil Procedure 60(b) in a bankruptcy appeal); Rock-Ola Mfg.

Corp. v. Filben Mfg. Co., 168 F.2d 919, 922 (8th Cir. 1948) (analyzing the term “legal

representative” in an action alleging a breach of a patent license contract); cf. Pan Two, 26 F. Supp.

990, 993 (D. Md. 1939) (holding that the term “personal representative” in the Jones Act includes

“the lawfully and properly appointed executor or administrator of the decedent”). A “legal

representative” is not necessarily restricted to the personal representative of one who is deceased,

but includes all “persons who, with respect to his property, stand in his place and represent his

interests, whether transferred to them by his act or by operation of law.” Mut. Life Ins. Co. v.

Armstrong, 117 U.S. 591, 597 (1886).

Merritt is the only person who claims to be Colonel Marsden’s “legal representative” under

the CLJA. Moreover, in light of the Missouri court’s appointment of Merritt as Colonel Marsden’s

personal representative and the plain meaning of “legal representative,” the court holds that Merritt

is Colonel Marsden’s “legal representative” under the CLJA.

In opposition to this conclusion, the United States argues that a genuine issue of material fact

exists concerning whether Merritt or Colonel Marsden’s surviving spouse is the appropriate “legal

representative” under the CLJA. See [D.E. 71] 9. The United States speculates that Colonel

Marsden’s surviving spouse may be amore appropriate “legal representative” under the CLJA or the

surviving spouse may not have waived her rights to be Colonel Marsden’s “legal representative”

under the CLJA. See id.

Article II requires “a genuine, live dispute between adverse parties, thereby preventing the

federal courts from issuing advisory opinions.” Carney v. Adams, 592 U.S. 53, 58 (2020); see Flast

v. Cohen, 392 U.S. 83, 96-97 (1968). Federal Rule of Civil Procedure 56 does not permit a party

opposing summary judgment to “create a genuine issue of material fact through mere speculation.”

Beale, 769 F.2d at 214; Fed. R. Civ. P. 56(c), (e). That another person may exist who may seek to

serve as Colonel Marsden’s “legal representative” under the CLJA or that unknown issues could

arise in this case concerning Merritt are not “facts,” much less materially disputed facts under Rule

5 .

56. See PSMF {ff 1-2, 4; DSMF 4 1-2, 4.2 Accordingly, the court rejects the United States’

argument. Merritt is Colonel Marsden’s “legal representative” under the CLJA.

B.

The United States argues that Merritt must qualify as an ancillary administrator in North

Carolina and open an estate in North Carolina in order to have the capacity to file an action in the

United State District Court for the Eastern District of North Carolina seeking relief under subsection

804(b) of the CLJA. See [D.E. 71] 6-7, 11-12. At its core, the United States relies on the generally

accepted principle that appointment of an executor or administrator in one state has no

extraterritorial effect, and that generally a non-resident executor or administrator can only sue in

another state if that other state permits it. See id. at 11-12. Merritt disagrees with the United States’

argument. See [D.E. 42] 13-18; [D.E. 94] 4-7.

The Federal Rules of Civil Procedure “govern the procedure in all civil actions and

proceedings in the United States district courts, except as stated in Rule 81.” Fed. R. Civ. P. 1.

Federal Rule of Civil Procedure 81 does not create an exception for civil actions under subsection

804(b) of the CLJA. See Fed. R. Civ. P. 81.

As used in Federal Rule of Civil Procedure 17(a), “the real party in interest principle is a

means to identify the person who possesses the right sought to be enforced.” 6A Charles Alan

Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1542, at 469 (3d ed. 2010) (hereinafter “Wright

& Miller”). Therefore, Rule 17(a) “directs attention to whether plaintiff has a significant interest in

2 If the court ever has a case where two different people claim to be a decedent’s “legal

representative” under the CLJA, then the court will resolve the dispute. See, e.g., Futch v. Midland

Enters., Inc., 471 F.2d 1195, 1195-96 (Sth Cir. 1973) (resolving a dispute over who the proper

“personal representative” was under the Jones Act and the Death on the High Seas Act); In re

Cosmopolitan Shipping Co., 453 F. Supp. 265, 266-68 (S.D.N.Y. 1978) (same).

the particular action plaintiff has instituted.” Id. In contrast, capacity to sue under Federal Rules of

Civil Procedure 17(b) or 17(c) involves “a party’s personal right to litigate in a federal court.” Id.;

see Revitalizing Auto Cmtys. Env’t Response Tr. v. Nat’] Grid USA, 10 F.4th 87, 97 (2d Cir. 2021).

Federal Rules of Civil Procedure 17(b) or 17(c) determine capacity to sue and generally are not

“limited to” or “dependent on the character of the specific claim involved in the litigation.” Wright

& Miller, § 1542, at 469. “Thus it is possible to be the real party in interest [under Rule 17(a)] and

yet lack capacity to sue [under Rule 17(b)].” Id.

“In determining who is the real party in interest when the court is exercising federal-question

jurisdiction,” a court must distinguish “between those federal statutes creating a substantive right of

action and statutes that merely provide a federal remedy for what traditionally have been state causes

of action.” Wright & Miller, § 1544, at 488. Where a federal statute creates a “substantive right of

action,” then “federal law clearly governs” the Rule 17(a) inquiry. Id.; see Inre Davis, 194 F.3d 570,

578 (Sth Cir. 1999); Va. Elec. & Power Co. v. Westinghouse Elec. Corp., 485 F.2d 78, 83 (4th Cir.

1973) (Rule 17(a) requires the person who brings the action to possess the right to enforce the claim

and to have a significant interest in the litigation. “Whether a plaintiff is entitled to enforce the

asserted right is determined according to the substantive law.”).

Subsection 804(b) of the CLJA creates Merritt’s substantive right of action. See CLJA §

804(b). Thus, federal law governs the real party in interest inquiry under Rule 17(a). Moreover,

under Rules 17(a)(1)(B) and 17(a)(1)(G), and in light of the Missouri court’s appointment of Merritt

as Colonel Marsden’s personal representative to administer his estate and her status as Colonel

Marsden’s “legal representative” under subsection 804(b) of the CLJA, Merritt is the real party in

interest under Rule 17(a) and possesses the right to file an action seeking relief under subsection

804(b) of the CLJA.

As for whether Merritt has the capacity to sue, the court analyzes Federal Rule of Civil

Procedure 17(b)(3). See Fed. R. Civ. P. 17(b)(3). “Capacity [to sue under Rule 17(b)] has been

defined as a party’s personal right to come into court, and should not be confused with the question

of whether a party has an enforceable right or interest or is the real party in interest.” Wright &

Miller, § 1559, at 604. “Generally, capacity is conceived of as a procedural issue dealing with the

personal qualifications of a party to litigate and typically is determined without regard to the

particular claim or defense being asserted.” Id. Rule 17(b)(3) instructs the court to determine

capacity to sue by examining “the law of the state where the court is located.” Fed. R. Civ. P.

17(b)(3); see Gibbs ex rel. Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 129 Gd Cir. 2002);

Johnson v. Helicopter & Airplane Servs. Corp., 404 F. Supp. 726, 729 (D. Md. 1975); La Salle Nat’!

Bank v. Pa. R.R., 8 F.R.D. 316, 317 (N.D. Ill. 1948); Waltz v. Chesapeake & Ohio Ry., 65 F. Supp.

913, 914 (N.D. Ill. 1946). This court is located in North Carolina. Thus, the court examines North

Carolina state law.

When the Federal Rules of Civil Procedure “refer to state law, the term ‘law’ includes the

state’s statutes and the state’s judicial decisions.” Fed. R. Civ. P. 81(d)(1). Accordingly, the court

examines North Carolina law to determine whether Merritt has the capacity to sue. See Fed. R. Civ.

P. 17(b)(3).

In examining North Carolina law, this court must predict how the Supreme Court of North

Carolina would rule on any disputed state-law issue. See Twin City Fire Ins. Co. v. Ben

Arnold-Sunbelt Beverage Co. of S.C., 433 F.3d 365, 369 (4th Cir. 2005). In doing so, the court must

look first to opinions of the Supreme Court of North Carolina. See id.; Parkway 1046, LLC v. U.S.

Home Corp., 961 F.3d 301, 306 (4th Cir. 2020); Stahle v. CTS Corp., 817 F.3d 96, 100 (4th Cir.

2016). If there are no governing opinions from that court, this court may consider the opinions of

the North Carolina Court of Appeals, treatises, and “the practices of other states.” Twin City Fire

Ins. Co., 433 F.3d at 369 (quotation omitted). In predicting how the highest court of a state would

address an issue, this court must “follow the decision of an intermediate state appellate court unless □

there is persuasive data that the highest court would decide differently.” Town of Nags Head v.

Toloczko, 728 F.3d 391, 398 (4th Cir. 2013) (quotation omitted); see Hicks v. Feiock, 485 U.S. 624,

630 & n.3 (1988). Moreover, in predicting how the highest court of a state would address an issue,

this court “should not create or expand a [s]tate’s public policy.” Time Warner

Ent.-Advance/Newhouse P’ ship v. Carteret-Craven Elec. Membership Corp., 506 F.3d 304, 314 (4th

Cir. 2007) (alteration and quotation omitted); see Day & Zimmermann, Inc. v. Challoner, 423 U.S.

3, 4 (1975) (per curiam); Wade v. Danek Med.., Inc., 182 F.3d 281, 286 (4th Cir. 1999).

No North Carolina statute addresses whether a non-resident “legal representative” under the

CLJA has the capacity to sue in the Eastern District of North Carolina seeking “appropriate relief”

under subsection 804(b) or whether such a non-resident “legal representative” must first qualify as

an ancillary administrator and open an estate in North Carolina to pursue such relief under subsection

804(b). Likewise, no decision of the Supreme Court of North Carolina or the North Carolina Court

of Appeals addresses these issues. Accordingly, this court looks to the practice of other states.

The parties have not cited, and this court has not located, any state statutes, state Supreme

Court decisions, or decisions of state Courts of Appeals addressing these issues. This court,

however, has located a line of cases that helps to inform whether a non-resident “legal

representative” under the CLJA must first qualify as an ancillary administrator and open an estate

in North Carolina to pursue such relief under subsection 804(b). The line of cases involves the

Federal Employers’ Liability Act (“FELA”), codified at 45 U.S.C. §§ 51-60. The FELA governs

the right of railroad employees injured or killed in the course of their employment through an

employer’s negligence to sue the employer for damages. See 45 U.S.C. § 51. “[I]n the case of the

death of such employee,” the FELA makes the employer liable to the decedent-employees’s

“personal representative, for the benefit of the surviving widow or husband and children of such

employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin

dependent upon such employee.” Id. The FELA grants “concurrent” jurisdiction to district courts

of the United States and “the courts of the several States.” Id. § 56. .

North Carolina courts have resolved numerous FELA actions. The Supreme Court of North

Carolina, however, has never analyzed or resolved whether a non-resident “personal representative”

under the FELA must first qualify as an ancillary administrator and open an estate in North Carolina

to have the capacity to sue and pursue such relief under the FELA in the state or federal courts in

North Carolina. The North Carolina Court of Appeals has not either.

Decisions from other state Supreme Courts go both ways on whether a non-resident “personal

representative” under the FELA must first qualify as an ancillary administrator and open an estate

in the state where the personal administrator files the FELA action to have the capacity to pursue a

FELA action in that state or federal court. Compare Gulf, M. & N.R. Co. v. Wood, 146 So. 298,

300-01 (Miss. 1933) (Tennessee administratrix was decedent’s “personal representative” under the

FELA, and Mississippi law did not require the “personal representative” to have ancillary letters

under Mississippi law or to open a Mississippi estate to seek relief under the FELA in state court in

Mississippi), and Shaw v. Chicago & A.R. Co., 314 Mo. 123, 129-30, 282 S.W. 416, 418 (1926)

(Illinois administratrix was decedent’s “personal representative” under the FELA, and Missouri law

did not require the “personal representative” to have ancillary letters under Missouri law or to open

a Missouri estate to seek relief under the FELA in state court in Missouri), and Wells v. Davis, 303

Mo. 388, 401-04, 261 S.W. 58, 61-62 (1924) (same), with Brown v. Bos. & MLR. Co., 283 Mass.

10

192, 193-96, 186 N.E. 59, 60-61 (1933) (New Hampshire administratrix could not serve as

decedent’s “personal representative” under the FELA and pursue a FELA action in Massachusetts

state court because Massachusetts law prohibited a non-resident administrator appointed in a foreign

state to serve as the estate’s “personal representative” in any other state).

As for federal courts, some have held that a non-resident “personal representative” under the

FELA need not first qualify as an ancillary administrator and open an estate in the state where the

personal administrator files the FELA action to have the capacity to sue in federal court. For

example, the United States Court of Appeals for the Sixth Circuit construed Tennessee law to permit

a Kentucky administratrix to serve as a “personal representative” under the FELA and pursue a

FELA action in federal court in Tennessee without obtaining ancillary letters under Tennessee law

or opening an estate in Tennessee. See Anderson v. Louisville & N.R. Co., 210 F. 689, 691-93 (6th

Cir. 1914); see also Waltz, 65 F. Supp. at 914~15 (construing Illinois law to permit an Indiana

administratrix to serve as a “personal representative” under the FELA and pursue a FELA action in

federal court in Illinois without obtaining ancillary letters under Illinois law or opening an estate in

linois).

In Wood, the Supreme Court of Mississippi explained its rationale for concluding that

Mississippi law did not require a Tennessee administratrix who was the decedent’s “personal

representative” under the FELA to have ancillary letters under Mississippi law or to open an estate

in Mississippi to seek relief under the FELA in Mississippi state court. See Wood, 146 So. at 300.

First, the Supremacy Clause of the United States Constitution makes the FELA the law in every

3 Whether the Massachusetts Supreme Judicial Court would adhere to the holding in Brown

is questionable in light of developments in Massachusetts law. See Bohl v. Leibowitz, 1 F. Supp.

2d 67, 69-70 (D. Mass. 1998). Nonetheless, for purposes ofresolving this motion, the court assumes

without deciding that Brown remains binding in Massachusetts.

11

state. See id. (“The federal statute controls in every substantive particular, and this includes, of

course, the party in whom the cause of action is vested, and who alone is authorized to sue.”); U.S.

Const. art. VI, cl. 2; see also Mondou v. N.Y., New Haven & Hartford R.R., 223 U.S. 1, 57 (1912)

(“When Congress, in the exertion of the power confided to it by the Constitution, adopted [the

FELA], it spoke for all the people and all the states, and thereby established a policy for all.”).

Second, the FELA restricts “these suits to the personal representative to provide that a responsible

person, officially designated as such by the local authorities, who are to be presumed to be well

informed concerning the decedent’s statutory beneficiaries, should be recognized as the plaintiff.”

Wood, 146 So. at 300. Thus, “when the plaintiff has shown. . . that he has been actually and legally

designated as the statutory trustee [under the FELA] by a lawful appointment as the personal

[representative] in the state, and in and by the court of that state, having competent jurisdiction to

make the appointment, then the person so appointed may sue in this state under the [FELA],

and... ancillary letters or a compliance with section 1723, Code 1930, is not necessary in such a

case.” Id. at 300-01. The Supreme Court of Missouri adopted the same rationale in Wells and

Shaw. See Shaw, 314 Mo. at 129-30, 282 S.W. at 418; Wells, 303 Mo. at 401-04, 261 S.W. at

61-62. These conclusions make sense because the “personal representative” in such a FELA action

does not appear for the benefit of the decedent’s estate. Rather, the “personal representative” appears

as a statutory trustee under the FELA. See, e.g., Lindgren v. United States, 281 U.S. 38, 41 (1930);

Chicago, B. & Q. R. Co. v. Wells-Dickey Tr. Co., 275 U.S. 161, 162-63 (1927).

This court predicts that the Supreme Court of North Carolina would follow Wood, Wells,

and Shaw and hold that North Carolina law does not require a non-resident “legal representative”

under the CLJA to first qualify as an ancillary administrator in North Carolina and open an estate

in North Carolina to pursue relief under subsection 804(b) of the CLJA. Rather, the Supreme Court

12

of North Carolina would recognize the effect of the Supremacy Clause and acknowledge that the

CLJA is the law in North Carolina. The Supreme Court of North Carolina also would recognize that

a non-resident “legal representative” under the CLJA is not relying on the extraterritorial effect of

letters testamentary or letters of appointment from another state to pursue an action under the CLJA

in the exclusive jurisdiction and exclusive venue of the United States District Court for the Eastern

District of North Carolina. Rather, the non-resident “legal representative” is relying on the legal

authority under the Supremacy Clause and the CLJA that Congress and this court have granted to

that “legal representative” and is suing as a statutory trustee under the CLJA. As in Wood, in

determining who qualifies as a “legal representative” for a decedent under the CLJA, this court

accepts as very probative evidence that a state court of competent jurisdiction outside of North

Carolina has appointed a person to serve as the administrator for the decedent. A non-resident “legal

representative” under the CLJA need not qualify as an ancillary administrator or open an estate in

North Carolina to pursue relief under subsection 804(b) of the CLJA.

In opposition, the United States argues that, under North Carolina law, a non-resident

personal administrator lacks capacity to prosecute an action under the CLJA in her representative

capacity without first qualifying in North Carolina as an ancillary administrator and opening an estate

in North Carolina state court. See [D.E. 71] 6-7, 11-12. In support, the United States cites North

Carolina General Statute § 28A-26-3, Davis v. Piper Aircraft Corp., 615 F.2d 606, 609-10 (4th Cir.

1980), Fennell v. Monongahela Power Co., 350 F.2d 867, 868-69 (4th Cir. 1965) (per curiam), and

Cannon v. Cannon, 228 N.C. 211, 211-12, 45 S.E.2d 34, 34-35 (1947).

The court rejects the United States’ argument. As for section § 28A-26-3, it is part of

Chapter 28A of the North Carolina General Statutes. Chapter 28A governs the administration of

decedents’ estates. See N.C. Gen. Stat. §§ 28A-1-1 to 28A-29-5. Article 26 of Chapter 28A

13

addresses foreign personal representatives and ancillary administration. See id. §§ 28A-26-1 to 28A-

26-9.

Section 28A-26-1 describes domiciliary and ancillary probate and administration. See id. §

28A-26-1. Section 28A-26-2 addresses payment of debt and delivery of property to a domiciliary

personal representative of a non-resident decedent without ancillary administration in North

Carolina. See id. § 28A-26-2. Sections 28A-26-1 and 28A-26-2 are not relevant to Merritt’s

capacity to sue in the Eastern District of North Carolina and seek relief under subsection 804(b) of

the CLJA.

Section 28A-26-3(a) states, in part, that “[a]ny domiciliary personal representative of a

nonresident decedent upon the filing of a certified or exemplified copy of letters of appointment with

the clerk of superior court who has venue under G.S. 28A-3-1 may be granted ancillary letters in this

State notwithstanding that the domiciliary personal representative is a nonresident of this State.” Id.

§ 28A-26-3(a) (emphasis added).’ Section 28A-26-3 does not require a non-resident personal

4 N.C. Gen. Stat § 28A-3-1 provides:

The venue for the probate of a will and for all proceedings relating to the

administration of the estate of a decedent shall be:

(1) In the county in this State where the decedent was domiciled at the time of the

decedent’s death; or

(2) If the decedent had no domicile in this State at the time of death, then in any

county wherein the decedent left any property or assets or into which any property or

assets belonging to this estate may have come. If there be more than one such

county, that county in which proceedings are first commenced shall have priority of

venue; or

(3) If the decedent was a nonresident motorist who died in the State, then in any

county in the State.

N.C. Gen. Stat. § 28A-3-1.

14

representative of a non-resident decedent to open an estate in North Carolina state court in order to

file an action in the Eastern District of North Carolina seeking relief under subsection 804(b) of the

CLJA. See id. § 28A-26-3. Rather, section 28A-26-3 permits such a non-resident personal

representative to seek such ancillary letters in North Carolina. See id.

Section 28A-26-4 addresses bond requirements for those who receive ancillary letters of

administration in North Carolina. See id. § 28A-26-4. Section 28A-26-4 does not address Merritt’s

capacity to sue in this case.

Section 28A-26-5 states that “[t]he domiciliary personal representative of the nonresident

decedent after qualifying as ancillary personal representative in this State is authorized to administer

the North Carolina estate of the nonresident decedent in accordance with the provisions of this

Chapter.” Id. § 28A-26-5. Section 28A-26-5 does not address the antecedent question of how a non-

resident personal representative of a non-resident decedent qualifies as a “legal representative” to

pursue a CLJA action in the Eastern District of North Carolina.

Section 28A-26-6(a) addresses the authority ofa domiciliary personal representative ofa non-

resident decedent to “invoke the jurisdiction of the courts of this State after qualifying as ancillary

personal representative in this State.” Id. § 28A-26-6(a) (emphasis added). The Eastern District of

North Carolina is the exclusive jurisdiction and venue for CLJA actions. See CLJA § 804(d). Thus,

section 28A-26-6(a) does not address Merritt’s capacity to sue in this case.

Section 28A-26-6(b) recognizes that a domiciliary personal representative of a non-resident

decedent submits to the jurisdiction of the courts of this State:

(1) As provided in G.S. 1-75.4, or

(2) By receiving payment of money or taking delivery of personal property under

G.S. 28A-26-2; or

(3) By acceptance of ancillary letters of administration in this State under G.S.

28A-26-3; or

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(4) By doing any act as personal representative in this State which if done as an

individual would have given the State jurisdiction over the personal representative

as an individual.

N.C. Gen. Stat. § 28A-26-6(b). Even without opening an estate in North Carolina state court, Merritt

submits to the personal jurisdiction of the North Carolina state courts and the personal jurisdiction

of this court by virtue of her status as a “legal representative” under the CLJA.

Section 28A-26-7 provides that “[a] court of this State having jurisdiction of the subject

matter and grounds for personal jurisdiction as provided in G.S. 28A-26-6 may exercise personal

jurisdiction over a defendant by service of process in accordance with the provisions of G.S. 1A-1,

Rule 4(j).” Id. § 28A-26-7. Even without opening an estate in North Carolina, a North Carolina

state court and this court can exercise personal jurisdiction over Merritt as a “legal representative”

under the CLJA by service of process under the Federal Rules of Civil Procedure and the North

Carolina Rules of Civil Procedure. See Fed. R. Civ. P. 5; N.C. Gen. Stat. § 1A-1, Rule 5.

Section 28A-26-8 addresses the duties of a personal representative in an ancillary

administration. See N.C. Gen. Stat. § 28A-26-8. Section 28A-26-8 does not address Merritt’s

- Capacity to sue in this case.

Section 28A-26-9 addresses remission of surplus assets by an ancillary personal

representative to a domiciliary personal representative. See id. § 28A-26-9. Section 28A-26-9 does

not address Merritt’s capacity to sue in this case.

The court has reviewed Chapter 28A of the North Carolina General Statutes. The court

rejects the United States’ reliance on North Carolina General Statute 28A-26-3 to defeat Merritt’s

capacity to sue.

In Davis, the Fourth Circuit analyzed North Carolina’s wrongful death statute in a diversity

action. See Davis, 615 F.2d at 609-14. The Fourth Circuit applied North Carolina law and observed

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that an action for wrongful death in North Carolina is “purely statutory.” Id. at 610. Under North

Carolina’s wrongful death statute, only the “personal representative or collector of the decedent” can

bring such an action. Id. (quoting N.C. Gen. Stat. § 28A-18-2). Moreover, under North Carolina’s

wrongful death statute, the “personal representative” must bring such an action in his “representative

capacity.” Id. (citing N.C. Gen. Stat. § 28A-1 8-3); see Graves v. Welborn, 260 N.C. 688, 690-91,

133 S.E.2d 761, 762-63 (1963). Furthermore, in order for a foreign executor or administrator to

bring a wrongful death action under North Carolina law, North Carolina law requires the foreign

executor or administrator first to have “qualified in North Carolina as [an] ancillary administrator.”

Davis, 615 F.2d at 610.

This case does not involve North Carolina’s wrongful death statute. Thus, Davis does not

help the United States.

As for Fennell, the Fourth Circuit analyzed West Virginia’s wrongful death statute. See

Fennell, 350 F.2d at 868-69. West Virginia’s wrongful death statute does not apply in this case.

As for Cannon, the Supreme Court of North Carolina analyzed North Carolina General Statute § 28-

176, but the General Assembly repealed that statute in 1975. See Cannon, 228 N.C. at 211-12, 45

S.E.2d at 34-35. Thus, Cannon does not help the United States.

The authority that the United States cites does not support the conclusion that Merritt must

first qualify as an ancillary administrator and open an estate in North Carolina in order to have the

capacity to sue in this case. Having reached this conclusion based on its prediction of how the

Supreme Court of North Carolina would address the issues in dispute, the court declines to address

Merritt’s argument that the court should rely on Briggs v. Pennsylvania Railroad, 153 F.2d 841,

842-43 (2d Cir. 1946), and hold that the reference to state law in Rule 17(b)(3) does not apply in

federal-question cases. See [D.E. 94] 6. Because this court predicts that the Supreme Court of North

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Carolina would interpret North Carolina law in a manner that acknowledges Merritt’s capacity to

sue, there is no conflict between state law and federal law. Moreover, as Wright and Miller note in

discussing Briggs, construing Rule 17(b) not to require the “application of state capacity law to

representatives in federal-question cases” ignores “that Rule 17(b)(3)(A) Contains an express proviso

to that effect for partnerships and unincorporated associations but does not include representatives.”

Wright & Miller, § 1565, at 649 (emphasis added).

Colonel Marsden was stationed at Camp Lejeune for over 30 days between July 6, 1964, and

July 12, 1966. See [D.E. 44-3] 3. After the CLJA became law, Colonel Marsden filed an

administrative claim with the Navy and exhausted his administrative remedies. See PSMF § 2;

DSMF § 2; CLJA § 804(h). Colonel Marsden named Merritt as his executor in his will. After

Colonel Marsden died, a Missouri court issued letters testamentary to Merritt and appointed her as

Colonel Marsden’s personal representative. See PSMF { 4; DSMF { 4; [D.E. 44-5]. She is his

“legal representative” under subsection 804(b) of the CLJA and is the real party in interest under

Rule 17(a). See, e.g., CLJA § 804(b); Fed. R. Civ. P. 17(a), (b)(3); Personal Representative, Black’s

Law Dictionary (11th ed. 2019) (“Someone who manages the legal affairs of another because of

incapacity or death, such as the executor of an estate. Technically, an executor is a personal

representative named in a will, while an administrator is a personal representative not named in a

will.”).

The United States has failed to produce “specific facts showing that there is a genuine issue

for trial” concerning whether Merritt qualifies as a “legal representative” who may bring an action

under the CLJA and has the capacity to sue under Rule 17(b)(3). Matsushita, 475 U.S. at 587

(quotation omitted); see Beale, 769 F.2d at 214. Merritt does qualify as Colonel Marsden’s “legal

representative” under subsection 804(b) of the CLJA, and she need not qualify as an ancillary

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administrator or open an estate in North Carolina state court in order to have the capacity to sue.

Accordingly, the court grants Merritt’s motion for partial summary judgment.

. Il.

In sum, the court GRANTS plaintiff's motion for partial summary judgment [D.E. 41].

Plaintiff qualifies as Colonel Marsden’s “legal representative” under subsection 804(b) of the CLJA

and may bring an action seeking relief under the CLJA. Plaintiff NEED NOT qualify as an ancillary

_ administrator in North Carolina or open an estate in North Carolina state court in order to have the

capacity to sue. Chief Judge Myers, Judge Boyle, and Judge Flanagan concur in this order.

SO ORDERED. This 21 day of February, 2024.

. wy

J □□□ C. DEVER II

United States District Judge

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