# Field v. Volkswagenwerk AG

> Court of Appeals for the Third Circuit · July 10, 1980 · 626 F.2d 293

URL: https://www.frixlaw.com/law-library/cases/8911859

## Case

- **Full name:** Ivana FIELD, Individually and as Administratrix of the Estate of Arthur Field, and Michael Field, by his natural mother and guardian, Lucille Field v. VOLKSWAGENWERK AG and Volkswagen of America, Inc.
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** July 10, 1980
- **Citations:** 626 F.2d 293; 29 Fed. R. Serv. 2d 1307
- **Precedential status:** Published
- **Opinion:** Dissent by Seitz
- **Judges:** Adams, Seitz, Weis
- **Cited by:** 190 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 (1989).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8911859

## How later opinions describe it (automated extraction)

- finding that the requirement of complete diversity pertains to suits between foreign citizens, and that, as applied, it denies jurisdiction “in an action by an alien against citizens of a state and another alien”
- holding that potentially inconsistent tort judgments in two separate suits arising from the same set of facts did not render a plaintiff in one case a necessary party to the other case
- concluding that § 1653 did not authorize an amendment to substitute a party who had standing to sue on behalf of an estate at the time the action was commenced
- holding that complete diversity was lacking in a lawsuit between an alien and a citizen co- plaintiffs and an alien defendant

## Opinion text

SEITZ, Chief Judge,
dissenting.
I agree with the majority that Ivana’s presence as a plaintiff destroyed the complete diversity necessary for the district court’s jurisdiction. I also agree that the citizenship of Arthur’s estate is that of the administratrix rather than of the deceased. However, I am constrained to disagree with the majority’s disposition of two issues: the holding that Ivana in her individual capacity is not an indispensable party and the holding that the complaint may not be amended to substitute Lucille as the administratrix of Arthur’s estate.
I.
On the first issue the majority correctly holds that Ivana’s status as an indispensable party cannot rest on VWAG’s possible assertion of her negligence as a defense against the claims of Michael and Lucille. However, this conclusion does not fully dispose of the issue.
The district court cited a second basis for its determination albeit in a cursory manner: “Additionally, to permit Ivana to pursue her action in another court and Michael and Lucille to proceed here would force VWAG to defend the same claim in two different actions.” The court added that the plaintiffs’ claims would not be time-barred in other forums and mentioned specifically Rhode Island and Italy.
The applicable rule of procedure is Fed.R. Civ.P. 19. Under rule 19(a)(1), a party should be joined, if feasible, when “in his absence complete relief cannot be accorded among those already parties.” The interests underlying this rule include an interest “in avoiding repeated lawsuits on the same essential subject matter.” Fed.R.Civ.P. 19(a)(1) (Advisory Committee note to 1966 amendment), 39 F.R.D. 91 (1966). In Ivana’s absence, the district court could not give complete relief to VWAG because VWAG might have to defend itself in a separate action brought by Ivana on the same claims. Ivana’s joinder is not feasible because it would destroy complete diversity. In this situation, rule 19(b) provides that “the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable.”
The Supreme Court provided a structure for analysis on the indispensability question in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102 , 88 S.Ct. 733 , 19 L.Ed.2d 936 (1968). The court identified four sets of interests that should guide a district court’s sense of “equity and good conscience:”
First, the plaintiff has an interest in having a forum. . . . Second, the defendant may properly wish to avoid multiple litigation, or inconsistent relief, or sole responsibility for a liability he shares with another. . . . Third, there is the interest of the outsider whom it would have been desirable to join.... Fourth, there remains the interest of the courts and the public in complete, consistent, and efficient settlement of controversies.
Id. at 109-11 , 88 S.Ct. at 738 .
In the present case, these interests line up in the following manner: If the district court requires Ivana’s joinder, complete diversity will be lost and the entire complaint will be dismissed. Michael and Lucille will be left to sue in some other forum, presumably either Rhode Island or Italy. This result is an interference with, but not a complete deprivation of the first interest, that of the plaintiffs in a forum. On the other hand, if the district court fails to require Ivana’s joinder, VWAG may have to defend against the claims of this suit in two separate actions. Any favorable judgment that it might obtain on the claims of Michael and Lucille would have no collateral estoppel effect in Ivana’s suit. This result works a detriment to the second and fourth interests, those of the defendant and the public in avoiding multiple litigation.
*308 Provident Tradesmens calls for a balancing of these competing interests to resolve the issue of indispensability. However, the record compiled by the district court is not sufficient to permit a just resolution, for two reasons.
First, the district court’s conclusion that Rhode Island and Italy are available forums does not rest on adequate findings of fact. The court considered only whether appellants’ claims would be time-barred in these forums. It made no inquiry into whether VWAG would be amenable to service or process in either location. Plainly, a forum is not available to a plaintiff if that forum does not afford him the ability to obtain jurisdiction over the defendant.
On the same point, the court’s conclusion that an action would not be time-barred in Rhode Island is not free from doubt. Rhode Island limits actions to recover personal injuries, including actions like the present one involving claims of products liability, to a period of three years from the time of injury. R.I.Gen.Laws § 9-1-14 (Supp. 1977); see Plouffe v. Goodyear Tire and Rubber Co., 373 A.2d 492 (R.I.1977). For appellants’ claims, the three-year period ran out on August 13, 1978, eight months before the district court dismissed their complaint.
One provision of Rhode Island law might save appellants’ right to sue. It provides that if a suit initially is filed within the applicable limitations period, as this suit was, and is dismissed for various reasons including a lack of subject-matter jurisdiction, the plaintiff may file a new action on the same claim within one year of the dismissal. R.I.Gen.Laws § 9-1-22 (1956). However, neither the language of the statute nor any decisions of the Rhode Island courts hold that this savings clause applies to a suit filed initially in a federal court or in a court in another state. Other states with similar provisions have not always applied them in these situations. See, e. g., Baker v. Commercial Travelers Mutual Accident Ass’n., 3 App.Div.2d 265, 161 N.Y.S.2d 332 (1957); Ivester v. Southern Ry., 61 Ga.App. 364 , 6 S.E.2d 214 (1939). The district court should not have concluded that appellants’ claims would not have been time-barred in Rhode Island without first considering whether a Rhode Island court would apply the state’s savings clause to a suit filed initially in the District of New Jersey.
The determination of whether Rhode Island or Italy is an available forum is a critical prerequisite to a proper balancing of the Provident Tradesmens set of interests. If no forum is available to hear the claims of Michael and Lucille, then a dismissal of the complaint will completely deprive them of their interest in a forum. If Italy is the only available forum, then their interest will be protected but with the imposition of obvious burdens on them. Finally, if no alternative forum is available to Ivana, then VWAG faces no real danger of multiple litigation.
The second insufficiency in the record is the lack of any consideration of the degree of the burden that would be imposed on VWAG and the courts should VWAG have to defend against appellants’ claims in two separate actions. Given recent experience with products liability litigation, this burden might be substantial. However, nothing appears in the record on this matter. Because Provident Tradesmens requires a balancing of interests, the district court should have assessed the probable burden of multiple litigation.
Therefore, the district court did not make adequate findings to support its conclusion that Ivana is an indispensable party. The same deficiencies in the record should prevent this court from reaching, any final resolution of the issue. We should not hold that Ivana must be joined as a party without a determination of whether Michael and Lucille can sue VWAG in another forum. At the same time, we should not hold that the suit may proceed without Ivana absent a determination that VWAG and the courts will not be left with a risk of excessively burdensome multiple litigation. I would vacate the order of the district court and remand for consideration of these matters. Consequently, I do not join the majority in its holding that Ivana is not an indispensable party.
*309 II.
My second disagreement with the majority concerns the district court’s refusal to permit an amendment of the complaint that would reflect Lucille’s replacement of Ivana as the administratrix of Arthur’s estate. This amendment would correct a defect in the allegations of diversity jurisdiction. With Ivana, a citizen of Czechoslovakia, as administratrix, diversity of citizenship between the estate and VWAG was absent. The substitution of Lucille, a citizen of Rhode Island, provided the diversity. 1 I find authorization for this amendment in 28 U.S.C. § 1653 (1976), which provides: “Defective allegations of jurisdiction may be amended upon terms, in the trial or appellate courts.”
A precedent for this application of § 1653 is Moore v. Coats Co., 270 F.2d 410 (3d Cir. 1959). There, the defect was a lack of venue. The plaintiff sued several defendants for patent infringement. However, he could not establish for any of them the facts required for venue in the district court — residence in the district or acts of infringement and a place of business in the district. 28 U.S.C. § 1400 (b) (1976). The defendants moved to dismiss the complaint on this ground. Before the district court could rule on the motion, the plaintiff amended his complaint to add an additional defendant, who satisfied the requirements of the venue statute, and to allege a cause of action of contributory infringement against this defendant. This court held that § 1653 authorized the amendment and allowed the use of an amendment of the complaint to create venue that previously had been absent.
Although Moore involved venue rather than subject-matter jurisdiction, the court relied on prior cases involving subject-matter jurisdiction and concluded that the two should be treated similarly under § 1653. 270 F.2d at 412 . I see no persuasive distinction between the amendment permitted in Moore and the one considered here. In particular, I find that neither of the majority’s reasons for prohibiting the amendment is valid in light of Moore .
The majority’s first reason is that jurisdiction lacking at the filing of a complaint cannot be supplied by subsequent amendment. However, Moore read § 1653 to permit this use of an amendment. When the complaint in that case was filed, venue actually was lacking. Only subsequent changes, the joinder of a new party and the allegation of a new cause of action, could establish venue. Moore permitted an amendment to reflect such changes.
The Supreme Court’s decision in Anderson v. Watt, 138 U.S. 694 , 11 S.Ct. 449 , 34 L.Ed. 1078 (1891), appears to support the majority on this point. However, I believe that it is no longer controlling. Anderson was decided prior to Congress’s enactment of the predecessor statute to § 1653. See P.L. No. 63-278, ch. 90, 38 Stat. 956 (1915). We have interpreted § 1653 to permit jurisdictional amendments despite the absence of jurisdiction at the commencement of a suit. I can find no decision of the Supreme Court or of this court subsequent to the enactment of this predecessor statute that prohibits this type of amendment.
The majority’s second reason is that § 1653 applies only to formal defects in jurisdictional allegations, not to substantive defects. The defect in Moore was in no sense formal. With the line-up of defendants in plaintiff’s original complaint, the underlying facts necessary to confer venue on the district court simply were not present.
In general, I am not inclined to embrace any fine distinctions that might be made *310 between this case and Moore . There, the court called for a liberal application of § 1653 for the purpose of avoiding dismissals that result only in the refiling of a properly amended complaint. 270 F.2d at 412 . That may well be the result in this case. However, dismissal in this case may lead to a problem that did not arise in Moore : Statutes of limitation may bar a refiling of the estate’s claims in many, if not all, forums. I can think of no persuasive reason for attaching such a consequence to defects in jurisdictional allegations when the defects might be cured by amendment of the complaint. Rather, I read Moore's policy of liberal applications of § 1653 to require courts to avoid this consequence.
In summary, I find the majority’s holding inconsistent with Moore v. Coats Co., supra. This panel lacks the authority to overrule a prior panel. See Third Circuit Internal Operating Procedures Ch. VIII(C). Accordingly, I dissent.
. Appellants argue that this change constitutes a collusive manufacture of jurisdiction, prohibited by 28 U.S.C. § 1359 (1976). Although this argument may have some merit, it should not affect our decisions on the issues of this appeal. Collusive manufacture of jurisdiction is an issue of fact to be decided in the first instance by the district court. McSparran v. Weist, 402 F.2d 867, 876-77 (3d Cir. 1968), cert. denied, 395 U.S. 903 , 89 S.Ct. 1739 , 23 L.Ed.2d 217 (1969). Here the district court made no findings on whether this change was an improper attempt to manufacture diversity of citizenship. I would leave the matter for consideration on remand.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8911859. Public record. Not legal advice.