Opposition Brief — Janeau v. Pitman Manufacturing Co.

Supreme Court brief1994

Ask Donna

What actually matters in this document.

Text

a ~ SR ee ae ee

: : NOV 21

; | D) 1993

a6" | OFFICE Ur THE CLERK

No. 93-819

In The

Supreme Court of the United States

October Term, 1993

BRENDA JANEAU,

Petitioner,

vs.

PITMAN MANUFACTURING COMPANY, INC.,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Francis H. Brown, III*

GEORGE FRAZIER

LeMLe & KELLEHER

2100 Pan-American Life Center

601 Poydras Street

New Orleans, LA 70130

Telephone: (504) 586-1241

Attorney for Respondent,

Pitman Manufacturing

Company, Inc.

ea.

)

ie |

lle |

a-*)

—_

[—<

er mee =_

ae a

———————

*Counsel of Record

3 BE

% ‘ E

COUNTERSTATEMENT OF QUESTIONS

PRESENTED FOR REVIEW

(1) Should this Court grant the Petition to review

the factual findings of the District Court for abuse of

discretion?

(2) Did the dismissal of the case by the District

Court and the subsequent affirmation of that decision by

the Fourth Circuit constitute abuses of discretion?

LIST OF PARTIES, PARENTS AND SUBSIDIARIES

The parties to the proceedings below were Petitioner

Brenda Janeau and Respondent Pitman Manufacturing

Company, Inc.

At the time the crane in question was manufactured,

Pitman Manufacturing Company was owned by Emerson

Electric Company, which remains responsible for any lia-

bility that may result from the incident at issue.

ili

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTIONS PRE-

SENTED FOR REVIEW ..........---- sce eeeeeeees i

LIST OF PARTIES, PARENTS AND SUBSIDIARIES... ii

TABLE OF CONTENTS... «2.222202 ccccccnceneccces iii

TABLE OF AUTHORITIES .........-.--.---eeeeeees vi

OPINIONS AND ORDERS BELOW ........-------- 2

UUM E MOI og bcs cn ncaccccsccsceuersccscceseess 3

EE EEE WEED, 5c ccc cen cc cccccscnresasssnccess 3

COUNTERSTATEMENT OF THE CASE .........--- 5

COUNTERSTATEMENT OF FACTS.........----+++- 5

1. Background.............--.sseeeeeeeee ee eeees 6

2. The Proceedings Below ........-.--+-++-+++5: 7

3. The Decisions Below...........-----++eeeeee: 8

a. The First Dismissal..............--+-++++- 9

b. The Second Dismissal...........---+++++- 11

4. Appellate Review.......-----+++seeeereereees 13

5. Specific Misstatements of Fact.......-..----+- 13

a. Discovery Delays Were Solely The Fault Of

Es ac eus esa teseinedecnteaeuee'ss 13

b. Petitioner’s Failure to Acknowledge The

Obvious Connection Between North Caro-

lina And The Accident Caused Significant

CU cries Cotes ea deatecctedccccsacseeuen 14

ce. Petitioner Violated The Court's October 25,

1991 Opinion And Order 15

_—————— —

TABLE OF CONTENTS —- Continued

Page

d. Petitioner’s Failure To Prosecute Was Inex-

I a ya ea ee ae ars 16

REASONS WHY THE PETITION SHOULD BE

2 eer Pear ea ye et In rn a eye 17

ps ee rere ear re ere Swe Fe 18

I. THIS COURT SHOULD NOT GRANT THE

PETITION TO REVIEW THE FACTUAL FIND-

INGS OF THE DISTRICT COURT FOR ABUSE

to8 5 1, reer rrr er Tre 18

Il. THE APPLICATION OF FACTS TO WELL

ESTABLISHED STANDARDS OF LAW WAS

NOT SO ERRONEOUS AS TO CONSTITUTE

pA 8 et em a) tee re re re 20

A. The Court Correctly Held that Plaintiff’s

Repeated Acts of Willful Disobedience

Warranted Severe Sanctions ............. 21

Fe ere err ery re 21

Be PUR Kaka PU eee daa eeee eee 23

it Ree acer Rao Mae ew ees 24

B. Lesser Sanctions Would Have the Same

SS Scare nes oa sea eee a ans 25

So we 4 | A re ene rey 28

APPENDICES:

A. MEMORANDUM OF OPINION AND ORDER

filed October 25, 1991,.......ccce eee eaes App. 1

B. ORDER OF DISMISSAL filed December 4,

Og te Sen eRe een 4? App. 2k

TABLE OF CONTENTS - Continued

Page

C. ORDER filed December 19, . ) ee App. 31

D. ORDER filed June 30, 1992........-.-+:- App. 36

TABLE OF AUTHORITIES

Page

CASES:

FEDERAI

Aerodyne Systems Engineering, Ltd. v. Heritage Inter-

national Bank, 115 F.R.D. 281 (D. Maryland 1987) .... 24

Bradley v. United States, 866 F.2d 120 (5th Cir. 1989) .... 25

Carlson v. Grobman, 133 F.R.D. 5 (D. N.H. 1990) ..... 25

Davis v. Williams, 588 F.2d 69 (4th Cir. 1978) ........ 22

Dove v. CODESCO, 569 F.2d 807 (4th Cir. 1978) ..... 19

Fitzgerald v. Manning, 679 F.2d 341 (4th Cir. 1982)... . 26

Ford v. Fogerty Van Lines, Inc., 780 F.2d 1582 (11th

Cie, FOG) oc ccucewcscceh@ebkeaveeubeeueereT eee 24

Geiserman v. MacDonald, 893 F.2d 787 (5th Cir.

EDU « ccveccccveaeaneeesseensbeea kien eleeeaeee rae

Gestetner Corp. v. Case Equipment Co., 108 F.R.D.

RSS (DD. BGO. FOGG) cv cccccdvacseccuevasueiiiekes cece

Herbert v. Saffell, 877 F.2d 267 (4th Cir. 1989)........ 22

Kuehl v. Federal Deposit Insurance Corp., No.

93-1419 (1st Cir. Nov. 17, 1993) [1993 U.S. App.

CLEARS GPPOEN sic ciscccnsndvcseebyeebEneaniecseeeee 17

Link v. Wabash R.R., 370 U.S. 626 (1962).. 17, 19, 22, 24

Marx v. Kelly, Hart & Hallman, P.C., 929 F.2d 8 (ist

Cie. 19990 Sock knccesceeee eee

McCargo v. Hedrick, 545 F.2d 393 (4th Cir. 1976) ..... 22

Minotti v. Lensink, 895 F.2d 100 (2d Cir. 1990)....... 23

National Hockey League v. Metropolitan Hockey Club,

Inc., 427 U.S. 639 (1976) ............ 17, 18, 20, 21, 23

vil

TABLE OF AUTHORITIES —- Continued

Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d

395 (D.C. Cir. 1984) ....... 2c cece e eee cece eens

Owens v. Bourns, Inc., 766 F.2d 145 (4th Cir. 1985) ....

Pierce v. Underwood, 487 U.S. 552 (1988)........-.

Poulis v. State Farm Fire & Casualty Co., 747 F.2d

863, 868 (3rd Cir. 1984). .........--. ee eee ee eee:

Prince v. Poulos, 876 F.2d 30 (5th Cir. 1989).......

Proctor v. Millar Elevator Service Co., No. 93-7067

(D.C. Cir. Oct. 26, 1993) [1993 U.S. App. LEXIS

on EDR Retry oe rere ere ry et

Reizakis v. Loy, 490 F.2d 1132 (4th Cir. 1974)......

Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980) ....

Shupert v. Pringle Transit Co., No. 92-1926 (6th Cir.

Mar. 30, 1993) [1993 WL 94312]............----

Snead v. Automation Industries, Inc., 102 F.R.D. 823

(D. Maryland 1984).........----+-++seeeeeeeee:

Wilson v. Volkswagen of America, Inc., 561 F.2d 494

CT oo 4 rrr Pere rer re

Wyle v. R. J. Industries, Inc., 709 F.2d 585 (9th Cir.

WN a cee bakcdestancakenssbGheemoaens 955

STATE

Jolley v. General Motors Corp., 55 N.C. App. 383,

285 S.E.2d 301 (N.C. App. 1982) ....-------++--

McCollum v. Grove Manufacturing Co., 58 N.C. App.

283, 293 S.E.2d 632 (1982) .......------+eeeeee:

Page

... 20

sae ae

. + © he am

yer

cae

Vill

TABLE OF AUTHORITIES - Continued

Page

Penland v. BIC Corp., 796 F. Supp. 877 (W.D.N.C.

| OD eee ae SN Pee Tee Ea ree eine ser 26

Spivey v. White Motor Corp., 46 N.C. App. 313, 264

S.E.20 772 (NA. App. TSG) acc ceca beaseasacuses 26

STATUTES:

FEDERAI

yea eg) nN retiree ror rrr ry 3

STATI

North Carolina General Statutes § 99B-4............ 27

RULEs:

Seabee Count Heme ME oo. 6c sec cccnescedsonss 1, 18

Federal Rule of Civil Procedure 11................. 10

Federal Rule of Civil Procedure 16(f)............ passim

Federal Rule of Civil Procedure 37(b)........... passim

Federal Rule of Civil Procedure 41(b)........... passim

Federal Rule of Civil Procedure 59(e)............... 11

No. 93-819

In The

Supreme Court of the United States

October Term, 1993

BRENDA JANEAU,

Petitioner,

VS.

PITMAN MANUFACTURING COMPANY, INC.,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

The Petition presents no ground specified in Rule

10.1 of this Court. The question of law involved in this

case has been definitively decided by the Court, the rul-

ing sought to be reviewed is consistent with that decision,

and the supposed conflict among the Circuits is illusory.

Perhaps more significantly, the questions the Petition pro-

fesses to present are of Petitioner's own manufacture. The

only issues are these: Was the application of well estab-

lished standards of law to the facts found by the trial

court so obviously erroneous that the Court of Appeals

abused its discretion by not reversing and remanding for

triai? What policy would be served by a remand that

could only result in this case being dismissed by the

district court for the third time? Respondent submits the

answers are self-evident, and consequently requests that

the Court deny the Petition for Writ of Certiorari to

Review the Decision of the United States Court of

Appeals for the Fourth Circuit in this case.

OPINIONS AND ORDERS BELOW

Some relevant Opinions and Orders are found in the

Appendix to the Petition for Writ of Certiorari. Others are

reproduced as Appendices to this Brief. The unreported

Order of the Court of Appeals denying the Petition for

Rehearing and the Suggestion for Rehearing En Banc is

reproduced in Appendix A to the Petition. The unre-

ported Opinion of the United States Court of Appeals for

the Fourth Circuit affirming the trial court’s Order dis-

missing Petitioner’s case is reproduced in Appendix B to

the Petition. The unreported Order of the United States

District Court for the Western District of North Carolina

dismissing Petitioner’s suit for the second time is repro-

duced in Appendix D to the Petition. The unreported

Memorandum of Opinion and Order in which the District

Court conditionally dismissed this case until Petitioner

filed a supplemental complaint establishing that she had

properly qualified as the personal representative of the

deceased's estate is attached as Appendix A to this Brief.

The unreported Order of the District Court dismissing

Petitioner’s case for the first time is reproduced in

Appendix B to this Brief. The unreported District Court

Order granting Petitioner’s Motion for Reconsideration of

the first Order dismissing the case is reproduced in

Appendix C to this Brief. The unreported Order of the

District Court denying Petitioner’s Motion for Recon-

sideration of the second dismissal (the Order of Dismissal

from which this case is appealed) is reproduced at

Appendix D to this Brief.

JURISDICTION

The Court has jurisdiction under 28 U.S.C. § 1254(1).

The Court of Appeals’ decision affirming the trial court’s

dismissal was issued on July 27, 1993. The Order denying

rehearing by the panel or en banc was filed on August 24,

1993. The Petition for Certiorari was filed on November

22, 1993.

RULES INVOLVED

The pertinent portions of the Rules relevant to this

case are as follows:

1. Federal Rule of Civil Procedure 16(f):

If a party or party’s attorney fails to obey a

scheduling or pretrial order, or if no appearance

is made on behalf of a party at a scheduling or

pretrial conference, or if a party or party’s attor-

ney is substantially unprepared to participate in

the conference, or if a party or party’s attorney

fails to participate in good faith, the judge, upon

motion or the judge’s own initiative, may make

such orders with regard thereto as are just, and

among others any of the orders provided in

Rule 37(b)(2)(B), (C), (D). .. .

2. Federal Rule of Civil Procedure 37(b)(2):

lf a party ... fails to obey an order to provide or

permit discovery . . . the court in which the

action is pending may make such orders in

regard to the failure as are just, and among

others the following:

(A) An order that the matters regarding

which the order was made or any

other designated facts shall be taken to

be established for the purposes of the

action in accordance with the claim of

the party obtaining the order;

(B) An order refusing to allow the disobe-

dient party to support or oppose des-

ignated claims or defenses, or

prohibiting that party from introduc-

ing designated matters in evidence;

parts thereof, or staying further pro-

ceedings until the order is obeyed, or

dismissing the action or proceeding or

any part thereof, or rendering a judg-

ment by default against the disobe-

dient party... .

3. Federal Rule of Civil Procedure 41(b):

For failure of the plaintiff to prosecute or to

comply with these rules or any order of court, a

defendant may move for dismissal of an action

or of any claim against the defendant. Unless

the court in its order for dismissal otherwise —

specifies, a dismissal under this subdivision and

any dismissal not provided for in this rule, other

than a dismissal for lack of jurisdiction, for

improper venue, or for failure to join a party

under Rule 19, operates as an adjudication upon

the merits.

COUNTERSTATEMENT OF THE CASE

This is a products liability claim under North Caro-

lina law. Petitioner is the personal representative of the

estate of her son, who was killed while operating a heavy

crane manufactured by Respondent.! The Complaint was

originally filed in Louisiana state court, removed to the

United States District Court for the Eastern District of

Louisiana, and transferred to the Charlotte Division of

the United States District Court for the Western District

of North Carolina. Although the Complaint asserts that

Respondent was negligent and its crane defectively

designed, Petitioner has never identified the negligence

or design defect. Petitioner’s conduct in the trial court led

to repeated threats of sanctions and two orders of dis-

missal. Petitioner appeals from the last order, granted

under the authority of Federal Rules of Civil Procedure

16(t), 37(b)(2)(C), and 41(b).

COUNTERSTATEMENT OF FACTS

Petitioner has not fairly or accurately recounted the

facts and proceedings below. Respondent believes a

' Defendant Pitman Manufacturing Company, Inc. is

referred to as “Pitman” as well as “Respondent”. Plaintiff

Brenda Janeau is identified as “Janeau” as well as “Petitioner”.

summary of the Opinions and Orders? of the trial court

offers a more balanced presentation.

1. Background

e On December 5, 1988, John Ray Janeau (“Dece-

dent”), then an employee of Southeastern Boring Con-

tractors, Inc. (“Southeastern”), was electrocuted in a fatal

construction site accident in Charlotte, North Carolina.

e While operating a crane manufactured by Pitman,

Decedent and the crane came into contact with an ener-

gized power line owned and maintained by Duke Power

Company (“Duke”).

e The accident occurred on a job site maintained

and managed by B & D Contractors of Shelby, Inc. (“B &

D”), which had subcontracted with Southeastern for a

portion of the work.

e Pitman is a Pennsylvania corporation with its

principal place of business in Pennsylvania. Both Duke

and B & D are North Carolina corporations with their

principal places of business in North Carolina.

e On November 2, 1989, Janeau, the mother of the

Decedent and a citizen of Louisiana, was appointed pro-

visional administratrix of the “Succession of John Ray

2 MEMORANDUM OF OPINION AND ORDER filed Octo-

ber 25, 1991 [Appendix A to this Brief]; ORDER OF DISMISSAL

filed December 4, 1991 [Appendix B to this Brief]; ORDER filed

December 19, 1991 [Appendix C to this Brief]; ORDER OF DIS-

MISSAL filed May 7, 1992 [Appendix D to the Petition]; ORDER

filed June 30, 1992 [Appendix D to this Brief].

Janeau” by the 25th Judicial District Court for the Parish

of Plaquemines, Louisiana.

2. The Proceedings Below

¢ Janeau commenced this wrongful death action

against Pitman in the Civil District Court for the Parish of

Orleans, State of Louisiana, on November 29, 1989.

e Her claim was predicated on the theory that the

crane had unspecified design or manufacturing defects

and Pitman had a duty to warn of “hazards and dan-

gers.”

e Pitman filed a notice of removal on January 4,

1990, removing the case to the United States District

Court for the Eastern District of Louisiana.

e After some preliminary discovery, the case was

transferred on June 20, 1990, to the Western District of

North Carolina, Charlotte Division, upon Pitman’s

motion.

e Six months later, Janeau moved to amend her

Complaint to name Duke and B & D as co-Defendants,

alleging for the first time that those parties were liable

jointly, severally, and in solido with each other and Pit-

man.

e Janeau offered no explanation for the delay.

e Leave to file the Amended Complaint was granted

on December 12, 1990.

e The case was transferred to Chief Judge Voorhees

in Asheville on February 27, 1991, when a potential con-

flict of interest arose in Charlotte. The Order from which

Petitioner seeks review was issued by Judge Voorhees.*

e Although added as co-Defendants in December,

1990, neither Duke nor B & D were served until March 25,

1991, again without explanation for the delay.

e In their responsive pleadings, Duke and B & D

raised the absence of diversity jurisdiction and Plaintiff's

incapacity to sue because of her failure to qualify prop-

erly as a personal representative under North Carolina

law.

e On June 3, 1991, Pitman moved to dismiss the suit

because Janeau had failed to qualify under North Caro-

lina law.

3. The Decisions Below

e On October 25, 1991, the trial court issued an

Opinion and Order that (a) dismissed Janeau’s case

against Duke and B & D for lack of diversity jurisdiction,

and (b) afforded Janeau thirty days from the October 25,

1991, filing of the Opinion and Order, or until November

27, 1991, within which “to seek proper qualification as

ancillary administrator or personal representative, to file a

3 The Petition incorrectly states that on February 27, 1991,

this action was transferred from the Asheville Division to the

Charlotte Division of the Western District of North Carolina.

Petition at 5.

ell

supplemental pleading establishing such qualification, and,

thereby, to ratify commencement of this action.”4

e The Opinion and Order twice warned that Jan-

eau’s failure to qualify within thirty days of the entry of

the Order “shall result in the dismissal of Plaintiff's claims

against Pitman.”>

a. The First Dismissal

e The trial court did not receive notice that Janeau

had qualified as a personal representative under North

Carolina law within the prescribed time.

e Pitman moved for dismissal on December 2, 1991.

e Janeau did not respond.

e The trial court then dismissed the case for failure

to comply with its Order of October 25, 1991.6

e In a Motion for Reconsideration filed on Decem-

ber 11, 1991, Janeau revealed that she had qualified as a

personal representative of the decedent’s estate, but had

simply failed to notify the court until two weeks after the

deadline for qualification and one week after the dis-

missal of the case for failure to timely qualify.

4 MEMORANDUM OF OPINION AND ORDER filed Octo-

ber 25, 1991, at 24 [Appendix A to this Brief at App. 24]

(emphasis added).

> MEMORANDUM OF OPINION AND ORDER filed Octo-

ber 25, 1991, at 26-27 [Appendix A to this Brief at App. 26-27]

(emphasis added).

dix B to this Brief at App. 28-29].

e No explanation was offered for Janeau’s failure to

comply in a timely fashion.

e Nonetheless, the trial court rescinded its first

Order of Dismissal on December 19, 1991, repeated its

warning of dismissal and other sanctions for further

transgressions by counsel, and permitted the case to go

forward upon filing of an amended complaint.”

e Pitman filed a Motion for Scheduling Order on

February 19, 1992.

e The trial court granted the Motion when Janeau

failed to respond to the Motion in any way.®

e Janeau never notified the trial court of any objec-

tions to or difficulties with the discovery schedule or

proposed an alternative schedule.

e Janeau neither disclosed any witnesses — either

fact or expert — nor provided Pitman with expert reports

by April 15, 1992, as required by the Scheduling Order.

e Accordingly, Pitman filed a Motion to Dismiss or

alternatively Exclude Expert Testimony on April 21, 1992.

e Janeau did not respond.

7 ORDER filed December 19, 1991, at 4-5 [Appendix C to

this Brief at App. 34-35]. The court twice referred to sanctions

under Rules 11 and 16(f) in addition to dismissal.

8 The trial court even had its law clerk place two telephone

calls to counsel for Plaintiff about the Motion for Scheduling

Order. Neither call elicited a response. See ORDER filed June 30,

1992, at 6 n.5 [Appendix D to this Brief at App. 41].

b. The Second Dismissal

e On May 7, 1992, the trial court dismissed the

action with prejudice under Federal Rules of Civil Pro-

cedure 16(f), 37(b), and 41(b). The trial court stated that

the dismissal was based on the failure by counsel for

Janeau to comply with the Scheduling Order, make or

cooperate in discovery, prosecute the action, or comply

with any order.?

e Janeau filed a Motion for Reconsideration on May

22, 1992.

e Because the Motion was filed within ten days of

the entry of Judgment, the trial court treated it as a

motion to alter or amend a judgment under Rule 59(e).

e The trial court based its denial of Janeau’s Motion

for Reconsideration on the following:

(i) There were (a) at least two flagrant violations of

the Pretrial Order by Janeau,!° (b) two violations of other

Orders entered by the trial court!, (c) six months of

? ORDER OF DISMISSAL filed May 7, 1992, at 4-5 [Appen-

dix D to the Petition at 15a].

'0 Janeau’s first response of any kind to Pitman’s Motion

for Scheduling Order was its Motion for Reconsideration filed

ninety-three days later. Janeau’s response to Pitman’s second

Motion to Dismiss was filed thirty-one days after the Motion

and fifteen days after the trial court’s second Order of Dis-

missal.

'! Janeau failed to file anything establishing that she had

properly qualified as a personal representative of Decedent's

estate until sixteen days after the deadline set by the Opinion

and Order of October 25, 1991, and seven days after the first

unexplained delay in moving to add Duke and B & D as

co-Defendants, (d) nearly four months of unexplained

delay in serving Duke and B & D, (e) eight months of

delay resulting from Janeau’s lack of capacity to sue, and

(f) two dismissals.!2

(ii) Janeau never offered an explanation for her fail-

ure to (a) respond to Pitman’s Motions of December 2,

1991, February 19, 1992, and April 21, 1992, (b) comply

with the trial court’s Orders of October 25, 1991, and

March 3, 1992, or (c) meet the April 15, 1992, discovery

deadline.'%

(iii) No depositions had been taken from at least

December, 1990, to February, 1992.'4

(iv) Janeau had yet to name any proposed expert

witness or to identify any alleged defect in Defendant's

crane.!°

Order of Dismissal. laneau also violated the trial court’s March

3, 1992, Order by failing to disclose all fact and expert witnesses

and provide Pitman with expert reports by April 15, 1992.

12 ORDER filed June 30, 1992, at 8-9 [Appendix D to this

Brief at App. 43-45].

13 Indeed, Janeau neither filed pleadings nor communi-

cated with the trial court in any fashion between (a) June 20,

1990 and December 6, 1991 and (b) December 30, 1991 and May

22, 1992. See ORDER filed June 30, 1992, at 3.n.3 & 6 [Appendix

D to this Brief at App. 38 & 41].

14 ORDER filed June 30, 1992, at 9 [Appendix D to this Brief

at App. 45].

15 ORDER filed June 30, 1992, at 9-10 [Appendix D to this

Brief at App. 45].

beneesieemeeeenimeneiadiemsasmaimaiaeiais

tell

‘

(v) The case “is no closer to trial readiness now than

it was on the day the initial complaint was filed.”16

4. Appellate Review

The trial court’s action was affirmed by the United

States Court of Appeals for the Fourth Circuit after full

briefing and oral argument on July 27, 1993. Rehearing by

both the panel and the full court was denied on August

24, 1993.

5. Specific Misstatements of Fact

Several misstatements call for specific comment.

a. Discovery Delays Were Solely The Fault

Of Petitioner

According to the Petition, it was “respondent who

requested delay and postponement of discovery.”!7 While

it is true that Pitman sought and was granted 90 day

extension of the November 8, 1990, discovery deadline,

this neither accounts for nor excuses the two and one-half

years of delay resulting from Petitioner’s failure to pros-

ecute her suit or to cooperate in discovery. In fact, the

extension requested by Pitman was a direct consequence

of Petitioner’s recalcitrance. How could Pitman complete

‘© ORDER OF DISMISSAL filed May 7, 1992, at 1 [Appen-

dix D to the Petition at 12a]; ORDER filed June 30, 1992, at 10

[Appendix D to this Brief at App. 45].

'7 See PETITION at 4.

discovery if Petitioner failed to identify any expert wit-

ness or even specify the basis of her claim that the crane

was defective?

b. Petitioner’s Failure to Acknowledge

The Obvious Connection Between

North Carolina And The Accident

Caused Significant Delay

Petitioner disingenuously attempts to shift the

responsibility to Pitman for her failure to properly qualify

as a personal representative of Decedent under North

Carolina law.!§

Other than the fact that Petitioner resided near New

Orleans, the State of Louisiana has no connection with

this case. In contrast, Decedent worked in North Caro-

lina, he and his family resided there, the accident

occurred near Charlotte, and all witnesses to the accident

lived in North Carolina. Ignoring the obvious, Peti-

tioner’s counsel decided to bring suit in New Orleans and

to obtain approval from a Louisiana court to act as the

representative of Decedent’s estate. Petitioner did not

oppose Pitman’s motion to transfer the case to North

Carolina, apparently conceding that common sense dic-

tated prosecuting the case in North Carolina.

The responsibility for obtaining court approval to

bring suit obviously lies with Petitioner. Because the acci-

dent occurred in North Carolina and the decedent lived

there, Janeau should have qualified under North Carolina

law at the outset. Even overlooking this initial failure,

18 PETITION at 5.

there is no excuse for Petitioner to delay eight months in

seeking proper qualification after being put on notice of

the problem in April, 1991. A substantial waste of time

and judicial resources could have been avoided had Jan-

eau not chosen to contest this clear-cut issue.

c. Petitioner Violated The Court’s October

25, 1991 Opinion And Order

The Fourth Circuit found that “{t]he district court

specifically stated in its opinion and order that Janeau’s

failure to qualify within thirty days would result in the

dismissal of her claims against Pitman.19 Nevertheless,

the Petition states that the trial court “subsequently res-

cinded its order of dismissal because the Order of Octo-

ber 25, 1991 neither required, nor suggested, that the

court must receive special notification of Petitioner’s

timely compliance with North Carolina’s qualification

requirements. 2°

This dispute is easily resolved by examining the Dis-

trict Court’s Opinion and Order of October 25, 1991, the

December 4, 1991 Order of Dismissal, and the December

19, 1991 Order reinstating Janeau’s claim — all of which

were excluded from the Appendix to the Petition. The

Opinion and Order expressly warns that “lo}nly plain-

tiff’s proper representative and a supplemental pleading

attesting to that fact can prevent the loss of this otherwise

time-barred cause of action.”21 The District Court

'? Appendix B to the PETITION at 6a.

20 Petition at 6.

21 Appendix A to this Brief at App. 23.

afforded Petitioner thirty days within which to file a

supplemental pleading establishing that Petitioner was

properly qualified to pursue the claim under North Caro-

lina law, and specified that failure “shall result in dis-

missa.... “=

The Opinion and Order left no ambiguity about the

fact that Petitioner’s non-compliance would result in dis-

missal.

d. Petitioner’s Failure to Prosecute was

Inexcusable

A fair reading of the Petition suggests that the action

of the District Court was wholly unanticipated. This is

absurd. Petitioner not only failed to advance the action,

but she gave no indication that she had any plan of

discovery that would enable her to make a prima facie case

at some time in the future.

The fact that Petitioner’s counsel participated in

seven depositions beginning on May 6, 1992, does not

excuse Petitioner’s failure to prosecute her suit. Even

with these depositions, Judge Voorhees characterized the

case as “no closer to trial readiness now than it was on

the day the initial complaint was filed.”?° If, as Petitioner

now claims, existing deposition testimony was adequate

to prove liability,24 she ought to have apprised Judge

22 Appendix A to this Brief at App. 27.

23 ORDER OF DISMISSAL filed May 7, 199, at 1 [Appen-

dix D to the PETITION at 12a]; ORDER filed June 30, 1992, at 10

[Appendix D to this Brief at App. 45].

24 PETITION at 14-15.

Voorhees. Even assuming there is such testimony, it

seems a bit much to argue that the trial court abused its

discretion by ignoring information that was never

brought to its attention. In fact, Petitioner has never

presented anything that meets the standards imposed by

North Carolina law.

REASONS WHY THE PETITION SHOULD BE DENIED

The Court of Appeals’ action followed directly from

such decisions as Link v. Wabash R.R., 370 U.S. 626 (1962),

and National Hockey League v. Metropolitan Hockey Club,

Inc., 427 U.S. 639 (1936). This case is extraordinary only in

that it was twice dismissed by the trial court without

Opposition from Petitioner until after the Orders of Dis-

missal had been issued. The suggestion that the decision

was so aberrant that review by this Court is required is

simply wrong. Indeed, courts of appeals have approved

the dismissal of cases as a sanction for failure to comply

with court orders on two occasions since this case was

decided. Kuehl v. Federal Deposit Insurance Corp., No.

93-1419 (Ist Cir. Nov. 17, 1993) [1993 U.S. App. LEXIS

29744]; Proctor v. Millar Elevator Service Co., No. 93-7067

(D.C. Cir. Oct. 26, 1993) [1993 U.S. App. LEXIS 27696].

ARGUMENT

I. THIS COURT SHOULD NOT GRANT THE PETI-

TION TO REVIEW THE FACTUAL FINDINGS OF

THE DISTRICT COURT FOR ABUSE OF DISCRE-

TION

This case involves no legitimate claim that the trial

court misapplied the law. Instead, the sole question for

review is whether Judge Voorhees abused his discretion

in dismissing Petitioner’s suit.*° This fact-intensive deter-

mination is simply not worthy of review by the Supreme

Court of the United States.

Although the panel unanimously held that dismissal

was proper and no member of the Fourth Circuit con-

cluded that rehearing was warranted, Petitioner asks this

Court to examine the factual findings made by Judge

Voorhees to determine whether the trial court’s decision

was “clearly unreasonable, arbitrary or fanciful.”26 Even

the most cursory review of the Opinions and Orders

below is sufficient to establish a record of delay and

dilatory tactics upon which the Court could rationally

have based its decision.

Petitioner apparently recognizes that this Court is

unlikely to find the “special and important reasons”

required by Rule 10.1 in a request to review factual find-

ings. Consequently, Petitioner has attempted to create a

legal issue. According to Petitioner, this Court must

25 See National Hockey League v. Metropolitan Hockey Club,

Inc., 427 U.S. 639, 642 (1976).

26 E.g., Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d

395, 399 (D.C. Cir. 1984).

decide whether she is personally responsible for the con-

duct which prompted the dismissal. This issue was

resolved over thirty years ago in Link v. Wabash R.R.:

There is certainly no merit to the contention that

dismissa! of petitioner’s claim because of coun-

sel’s unexcused conduct imposes an unjust pen-

alty on the client. Petitioner voluntarily chose

this attorney as his representative in the action,

and he cannot now avoid the consequences of

the acts or omissions of this freely selected

agent. Any other notion would be wholly incon-

sistent with our system of representative litiga-

tion, in which each party is deemed bound by

the acts of his lawyer-agent and is considered to

have “notice of all facts, notice of which can be

chanced upon the attorney.”

370 U.S. at 633-34.

It follows, then, that “a civil plaintiff may be

deprived of his claim if he failed to see to it that his

lawyer acted with dispatch in the prosecution of his

lawsuit.” 370 U.S. at 634. Petitioner has presented no

reason why Link should be reconsidered. In fact, the

decision is cited with approval in the Petition.27

While evidence of a litigant’s personal responsibility

is not a prerequisite for dismissal, Courts of Appeals

uniformally consider a party’s conduct in assessing the

appropriate sanction. E.g., Shupert v. Pringle Transit Co.,

No. 92-1926 (6th Cir. Mar. 30, 1993) [1993 WL 94312];

Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868

(3rd Cir. 1984); Dove v. CODESCO, 569 F.2d 807, 811 (4th

2? PETITION at 9.

Cir. 1978). Petitioner all but concedes that the Fourth

Circuit applies the same legal standard as the other

Courts of Appeals when reviewing a dismissal under

Rules 16(f), 37(b) and 41(b). What the Petition actually

claims is that the lower court decision “reflects a vast

departure from previous Fourth Circuit authorities.”2° In

short, the “conflict” is the Fourth Circuit’s alleged failure

to properly apply the facts to its own legal standard, not

a conflict among the Circuits.

II. THE APPLICATION OF FACTS TO WELL ESTAB-

LISHED STANDARDS OF LAW WAS NOT SO

ERRONEOUS AS TO CONSTITUTE ABUSE OF

DISCRETION

Judging from the Petition, the trial court’s decision is

to be reviewed to determine whether the policy favoring

the disposition of cases on the merits has been violated.

This is disingenuous if not deceptive. National Hockey

League v. Metropolitan Hockey Club, Inc., 427 U.S. 639

(1976), leaves no doubt that abuse of discretion is the

appropriate standard of review.

Abuse of discretion is particularly appropriate for

what the Court has termed “issues involving what can

broadly be labeled ‘supervision of litigation’... .” Pierce

v. Underwood, 487 U.S. 552, 558 n.1 (1988). The actions of

the lower courts were unquestionably exercises in super-

vising litigation. Moreover, what a reviewing court might

have done when presented with the same circumstances

is irrelevant:

28 PETITION at 9.

a ae ey ee

The question, of course, is not whether this

Court, or whether the Court of Appeals, would

as an original matter have dismissed the action;

it is whether the District Court abused its discre-

tion in so doing.

National Hockey League v. Metropolitan Hockey Club, 427

U.S. at 642 (1976).

If supported by the record, the sanction of dismissal

ought not be set aside. Here, where the delay and failure

to follow court orders continued even after the initial

dismissal, the sanction imposed by Judge Voorhees was

not only supportable, it was necessary. The conduct of

Petitioner’s counsel and the failure to comply with the

Scheduling Order effectively precluded any lesser sanc-

tion. In short, dismissal under the authority of Rules

16(f), 37(b) and 41(b) was entirely proper.

A. The Court Correctly Held that Plaintiff’s

Repeated Acts of Willful Disobedience War-

ranted Severe Sanctions

Dismissal with prejudice is expressly contemplated

as a sanction in just this kind of case by three separate

provisions of the Federal Rules of Civil Procedure.

1. Rule 41(b):

Federal Rule of Civil Procedure 41(b) authorizes dis-

missal of a case “[flor failure of the plaintiff to prosecute or

to comply with these rules or any order of court... . ”

(emphasis added). A court may even dismiss sua sponte in

the exercise of its inherent powers when necessary to

manage its own affairs. Link v. Wabash R.R., 370 U.S. 626,

630-31 (1962). Dismissal because of counsel’s misconduct

does not impose an unjustified penalty on his client. 370

U.S. at 633-34.

In the Fourth Circuit, cases cannot be dismissed

under Rule 41(b) without consideration of the individual

circumstances:

[d]istrict courts must take four factors into

account in deciding whether Rule 41(b) dis-

missal is appropriate as a sanction:

(1) the degree of personal responsibility of

the plaintiff, (2) the amount of prejudice

caused the defendant, (3) the existence of a

drawn out history of deliberately proceed-

ing in a dilatory fashion, and (4) the exis-

tence of sanctions less drastic than

dismissal.

Herbert v. Saffell, 877 F.2d 267, 270 (4th Cir. 1989); see Davis

v. Williams, 588 F.2d 69, 70-71 (4th Cir. 1978); McCargo v.

Hedrick, 545 F.2d 393, 396 (4th Cir. 1976); Reizakis v. Loy,

490 F.2d 1132, 1135 (4th Cir. 1974).

In Herbert, the Court of Appeals reversed a Rule 41(b)

dismissal because it saw no evidence that (i) the delay

was deliberate, (ii) counsei’s conduct prolonged the liti-

gation, or (iii) the trial court considered other, less dras-

tic, sanctions. 877 F.2d at 270. That is hardly the case here.

Specific findings by the trial court are unrebuttable evi-

dence of deliberate delay prolonging the litigation. More-

over, this case has been twice dismissed. It is difficult to

understand how the trial court could consider the effi-

cacy of less drastic sanctions when dismissal itself was

ineffective.

2. Rule 37(b):

Federal Rule of Civil Procedure 37(b)(2)(C) autho-

rizes a district court to dismiss an action if a party fails to

obey an order to permit or provide discovery. In National

Hockey League v. Metrcpolitan Hockey Club, Inc., 427 US.

639 (1976), the Court held that a district court did not

abuse its discretion in dismissing an action because coun-

sel for plaintiffs repeatedly failed to provide “crucial”

information, disregarded specific dates, and failed to file

timely motions even though warned that sanctions would

be imposed under Rule 37. 427 U.S. at 640-41. The Court

found that dismissal must be available as a sanction not

only to punish those to exhibit “flagrant bad faith” and

“flagrant disregard” of their responsibilities, but also to

deter similar conduct by others. 427 U.S. at 643.

In Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980),

the Court re-emphasized that

Rule 37 sanctions must be applied diligently

both “to penalize those whose conduct may be

deemed to warrant such a sanction, [and] to

deter those who might be tempted to such con-

duct in the absence of such a deterrent.”

447 U.S. at 763-64.

It seems clear that the dominant motivations,

whether codified or not, for granting or affirming dis-

missal as a sanction under Rule 37(b) are (i) obvious bad

faith or repeated disregard of court orders and (ii) the

ineffectiveness of lesser sanctions. See, e.g., National

Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S.

639 (1976); Marx v. Kelly, Hart & Haliman, P.C., 929 F.2d 8

(Ist Cir. 1991); Minotti v. Lensink, 895 F.2d 100 (2d Cir.

1990); Prince v. Poulos, 876 F.2d 30 (Sth Cir. 1989); Wyle v.

R. J. Industries, Inc., 709 F.2d 585 (9th Cir. 1983); Wilson v.

Volkswagen of America, Inc., 561 F.2d 494 (4th Cir. 1977);

Aerodyne Systems Engineering, Ltd. v. Heritage International

Bank, 115 F.R.D. 281 (D. Maryland 1987); Snead v. Auto-

mation Industries, Inc., 102 F.R.D. 823 (D. Maryland 1984).

That test is certainly met here.

3. Rule 16(f):

Federal Rule of Civil Procedure 16(f) provides that

“{ilf a party or a party’s attorney fails to obey a scheduling or

pretrial order . . . the judge, upon motion or the judge’s

own initiative, may make such orders with regard thereto

as are just, and among others any of the orders provided

in Rule 37(b)(2)(B), (C), (D).” (emphasis added). As dis-

cussed above, Rule 37(b)(2)(C) provides specific authori-

zation for an order dismissing an action.

Rule 16 did not provide for sanctions prior to its

amendment in 1983. The Notes of the Advisory Commit-

tee following the text of the Rule indicate that the orders

of dismissal entered in such cases as Link v. Wabash R.R.

would have been issued under Rule 16(f) rather than

Rules 37(b) or 41(b) had they been decided after the 1983

amendments to Rule 16.

Those few cases construing Rule 16(f) indicate that

failure to comply with a pretrial or scheduling order

issued under Rule 16 will justify dismissal with prejudice

if there is a clear record of unexplained delay and a

finding that lesser sanctions would not suffice. E.g., Ford

v. Fogerty Van Lines, Inc., 780 F.2d 1582, 1583 (11th Cir.

1986); cf. Geiserman v. MacDonald, 893 F.2d 787, 792-93 (5th

Cir. 1990) (enforcement of deadline set in Scheduling

Order will not be disturbed unless party provides valid

reason excusing compliance); Bradley v. United States, 866

F.2d 120, 124-25 (5th Cir. 1989) (failure to timely identify

expert witnesses necessarily causes prejudice); Carlson v.

Grobman, 133 F.R.D. 5, 8 (D. N.H. 1990) (Scheduling Order

strictly enforced when extension or other relief not timely

sought); Gestetner Corp. v. Case Equipment Co., 108 F.R.D.

138, 141-42 (D. Me. 1985) (dates in Scheduling Order will

not be set aside unless counsel can explain why he failed

to object in a timely manner).

The record in this case contains little but delay. Peti-

tioner has never even attempted to offer an explanation

for her inaction. The case unquestionably meets the estab-

lished criteria for dismissal.

B. Lesser Sanctions Would Have The Same Result

Any argument that lesser sanctions would cause

counsel to mend his ways is rebutted by the fact that

dismissal has already proven ineffective. Dismissal is par-

ticularly appropriate here because the result would be the

same whatever sanction were imposed. Simply put, Peti-

tioner cannot prove her claim with or without expert

testimony.

e This is a diversity case, and thus what Petitioner

must prove is governed by North Carolina law; whether

she has adduced sufficient proof is a matter of federal

law. E.g., Owens v. Bourns, Inc., 766 F.2d 145, 149 (4th Cir.

1985); Fitzgerald v. Manning, 679 F.2d 341, 346 (4th Cir.

1982).

e Under North Carolina law, it is clear that neither

negligence nor defective design can be presumed from

the mere fact of an accident or injury. E.g., Penland v. BIC

Corp., 796 F. Supp. 877 (W.D.N.C. 1992); Jolley v. General

Motors Corp., 55 N.C. App. 383, 385-86, 285 S.E.2d 301,

303-04 (N.C. App. 1982).

e Rather, Plaintiff must produce specific evidence

that a defect existed in txe product when it left the

manufacturer’s hands. E.g., Jolley v. General Motors Corp.,

55 N.C. App. 383, 385-86, 285 S.E.2d 301, 303-04 (N.C.

App. 1982).

e Moreover, Plaintiff must prove that this defect

was the proximate cause of the accident in question. E.g.,

Spivey v. White Motor Corp., 46 N.C. App. 313, 315, 264

S.E.2d 772, 774 (N.C. App. 1980).

e The showing that Plaintiff must make is clear

from McCollum v. Grove Manufacturing Co., 58 N.C. App.

283, 293 S.E.2d 632 (1982), a case also involving an acci-

dent with a heavy crane:

[A] manufacturer is under a duty to those

who use his product to exercise that degree of

care in its design and manufacture that a reason-

ably prudent man would use in similar circum-

stances. The manufacturer of a machine which is

dangerous because of the way in which it func-

tions, and patently so, cwes to those who use it

a duty merely to make it free from latent defects

and concealed dangers. In a case against such a

a a

manufacturer, the plaintiff must prove the exis-

tence of a latent defect or of a danger not known to

the plaintiff for other users.

Under our case law, a manufacturer has no

duty to equip his product with safety devices to

protect against defects and dangers that are obvious.

58 N.C. App. at 287-88, 293 S.E.2d at 635-36 (emphasis

added); see North Carolina General Statutes § 99B-4.

¢ McCollum affirmed a directed verdict for the man-

ufacturer because, among other things, (i) North Carolina

has not adopted the doctrine of strict liability except for a

few exceptional circumstances, (ii) a crane is not an inher-

ently dangerous instrumentality, and (iii) a manufacturer

has no duty to equip his products with safety devices to

protect against obvious dangers. 58 N.C. App. at 289-91,

293 S.E.2d at 636-38.

e Although the Petition contends that Janeau can

prove her case without an expert, she has identified no

witness, testimony, or other evidence that supports the

conclusion that the crane was unreasonably dangerous.

Without an appropriate record, no witness could demon-

Strate a connection between Pitman’s supposed wrong-

doing and Decedent's accident. Trial would be but a

gesture given the absence of evidence indicating that the

accident was in any way attributable to Pitman or its

product.

29 PETITION at 14-15.

Petitioner argues that she should not be deprived of

her day in court because her attorneys actively pros-

ecuted a case in a foreign jurisdiction and postponed

discovery with the agreement of counsel for Respon-

dent.*° This is factually incorrect and iegally irrelevant.

Since when does a party have the right to ignore court

orders without punishment because the forum is distant

or it believes delay is prudent? More to the point, what

kind of a trial would Petitioner have if her case were

remanded? Counsel has (i) apparently conceded it cannot

use expert testimony,*! (ii) failed to identify any defect in

the two and one-half years the case was pending in the

trial court,*? and (iii) failed to identify any witnesses by

the discovery deadline.**

Dismissal would penalize Appellant only if she has a

case. But the record certainly doesn’t indicate she has any

chance on the merits. Consequently, dismissal will work

no prejudice.

CONCLUSION

If the Court is going to decide how and under what

circumstances courts may dismiss cases as a sanction, it

should take a case clearly involving that issue. To take the

30 PETITION at 7.

31 PETITION at 13-15.

32 ORDER filed June 30, 1992 at 9 [Appendix D to this Brief

at App. 45].

33 ORDER filed March 3, 1992, at 1 [Appendix D to this

Brief at App. 48].

Wt arkcw Sei A

ES TD Et AN | Seabed! RN

case in order to affirm the decision of the Fourth Circuit

would be pointless. To take the case in order to reverse it

would require the Court to find that the Court of Appeals

clearly abused its discretion by failing to find that the

District Court obviously abused its discretion in dismiss-

ing a case that Petitioner had made almost no atternpt to

prepare for trial. Even assuming the Court were disposed

to do so, reversal could serve no purpose. Even the lesser

sanction of enforcing the Scheduling Order would result

in dismissal, for Petitioner failed to list any witnesses,

fact or expert, or identify any defect in Respondent's

product.

Francis H. Brown, III*

GEORGE FRAZIER

LemMie & KELLEHER

2100 Pan-American Life Center

601 Poydras Street

New Orleans, LA 70130

Telephone: (504) 586-1241

Attorney for Respondent,

Pitman Manufacturing Company, Inc.

* Counsel of Record

App. 1

APPENDIX A

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL NO. C-C-90-194-V

BRENDA JANEAU,

Plaintiff,

VS. MEMORANDUM OF

PITMAN OPINION AND ORDER

MANUFACTURING (Filed

COMPANY, INC., DUKE

POWER COMPANY, and

B & D CONTRACTORS

OF SHELBY, INC.,

Oct. 25, 1991)

Defendants.

THIS MATTER is before the Court on the following

motions: Motion to Dismiss of Defendant Pitman Manu-

facturing Company (“Pitman”); Motions to Dismiss and

for Summary Judgment of Defendant Duke Power Com-

pany (“Duke”); and Motions to Dismiss and for Summary

Judgment of Defendant B & D Contractors of Shelby, Inc.

(“B & D”). Because of the absence of complete diversity

of citizenship between Plaintiff and Defendants Duke and

B & D, the Court finds that it must dismiss this action as

to those Defendants for lack of jurisdiction. Because of

Plaintiff’s failure to qualify properly as a personal repre-

sentative of the Decedent under the laws of North Caro-

lina, the Court finds dismissal is also warranted as to the

claims against Pitman. However, for the reasons herein

App. 2

enumerated, Pitman’s motion to dismiss shall be held in

abeyance for thirty (30) days, pending Plaintiff’s satisfac-

tion of the North Carolina statutory requirements for

ancillary administrator or personal representative quali-

fication.

I. INTRODUCTION

This case has it basis in a fatal accident which

occurred in Charlotte, North Carolina, on December 5,

1988. John Ray Janeau (“Decedent”), was an employee of

Southeastern Boring Contractors, Inc. (“Southeastern”).

He was electrocuted while operating a truck-mounted

Model HL-757 Pitman crane manufactured by Defendant

Pitman, a Pennsylvania corporation with its principal

place of business in Pennsylvania. The crane came into

contact with an energized power line owned and main-

tained by Defendant Duke, a North Carolina corporation

with its principal place of business in North Carolina. The

accident occurred on a job site maintained and managed

by Defendant B & D, a North Carolina corporation with

its priricipal place of business in North Carolina. B&D

had subcontracted with Southeastern for a portion of the

work to be completed. Decedent was pronounced dead at

Charlotte Memorial Hospital shortly after the accident.

On November 2, 1989, Plaintiff, the mother of the

Decedent and a citizen of Louisiana, was appointed pro-

visional administratrix of the “Succession of John Ray

Janeau” by the 25th Judicial District Court for the Parish

of Plaquemines, Louisiana. See Exhibit A of Plaintiff's

Memorandum in Opposition to Motion for Summary

Di tition

App. 3

Judgment, filed June 13, 1991 (Pleading No. 34) [“Plain-

tiff’s Opposing Memorandum” ]. Plaintiff commenced this

death by wrongful act suit against Pitman in the Civil

District Court for the Parish of Orleans, State of Louisi-

ana, on November 29, 1989. Neither Duke nor B & D were

named as co-Defendants, despite the intimation of joint

and several liability in the initial complaint.! Pitman filed

its notice of removal on January 4, 1990, thereby remov-

ing this case to United States District Court for the East-

ern District of Louisiana. On June 20, 1990, the case was

transferred to the Western District of North Carolina,

Charlotte Division, upon Pitman’s motion. It was not

until December 12, 1990, that Plaintiff moved to amend

her complaint so as to name Duke and B & D, allegedly

“liable to plaintiff jointly, severally, and in solido with

each other and defendant, Pitman Manufacturing, Inc.,”

as co-Defendants in this matter. Plaintiff's First Supple-

mental and Amending Complaint, filed December 6, 1990

(Pleading No. 16) [“Amended Complaint”]. Leave was

granted for the filing of the amended complaint, and the

case was subsequently transferred to this Court when a

potential conflict of interest arose in the Charlotte Divi-

sion. See Order, filed December 12, 1990 (Pleading No.

! According to the Complaint, the fatal accident occurred

when the crane, of allegedly inadequate design and manufac-

ture, “came into contact with or caused a load it was lifting to

come into contact with electrical distribution or transmission

lines rated 50kv that had not been de-energized and visibly

grounded, and which did not have insulation barriers attached

to them.” Petition for Damages, filed November 29, 1989, from

Record as transferred from United States District Court, Eastern

District of Louisiana, filed June 25, 1990 (Pleading No. 1) [“Loui-

siana Record” ].

App. 4

19); Order, filed February 27, 1991 (Pleading No. 20).

Duke and B & D were not served with a summons, giving

notice of the pending action, until the latter part of

March, 1991. =

Il. DISCUSSION

A. Diversity Jurisdiction

The only foundation for the Court's jurisdiction in

this case is the diversity provision in 28 U.S.C. § 1332.¢

“The district courts shall have original jurisdiction of all

civil actions where the matter in controversy exceeds the

sum or value of $50,000, exclusive of interest and costs,

and is between . . . citizens of different States. ... “ 28

U.S.C. § 1332(a)(1) (1988). This statute, providing district

courts with diversity jurisdiction, requires each defen-

dant’s citizenship to differ from each plaintiff's citizen-

ship. See, e.g., Owen Equip. and Erection Co. v. Kroger, 437

U.S. 365, 373 (1978); American Fire & Cas. Co. v. Finn, 341

US. 6, 17 (1951); Strawbridge v. Curtiss, 7 U.S. (3 Cranch)

267, 2 L.Ed. 435 (1806). The burden of proving diversity

of citizenship is on the party invoking federal diversity

jurisdiction.* See, e.g., Hawes v. Club Ecuestre El

2 No federal question jurisdiction under 28 U.S.C. § 1331 is

implicated in a death by wrongful act claim, which is a matter of

state law. See, e.g., Nelson v. United States, 541 F. Supp. 816,

817-18 (M.D.N.C. 1982).

3 Pitman was the party responsible for this matter being

removed to federal court and, in that regard, successfully estab-

lished diversity of citizenship between it and Plaintiff. Petition

for Removal, dated January 4, 1990, from Louisiana Record. See

Armstrong v. Goldblatt Tool Co., 609 F. Supp. 736, 737-38 (D. Kan.

App. 5

Comandante, 598 F.2d 698, 702 (1st Cit. 1979); Mas v. Perry,

489 F.2d 1396, 1399 (5th Cir.), cert. denied, 419 U.S. 842

(1974).

Plaintiff alleges that the instant case pits a Louisiana

plaintiff against three corporate defendants, one from

Pennsylvania and two from North Carolina. The 1988

amendments to § 1332 suggest otherwise: “[T]he legal

representative of the estate of a decedent shall be deemed

to be a citizen only of the same State as the decedent... .”

28 U.S.C. § 1332(c)(2) (1988). This provision applies to

“any civil action commenced in or removed to a United

States district court on or after the 180th day after the

date of enactment of this title,” or May 18, 1989. Pub. L.

100-702, § 202(b) (emphasis added). See also 1 Moore's

Federal Practice para. 0.74[6.-8], at 800.19-800.20 (2d ed. &

Supp. 1991); D. Siegel, “Commentary on 1988 Revisions

to 28 U.S.C. § 1332,” at 5, 28 U.S.C.A. § 1332 (Supp. 1991).

This case was removed from the Civil District Court for

the Parish of Orleans, State of Louisiana, to the United

States District Court for the Eastern District of Louisiana

on January 4, 1990. Therefore, the 1988 amendments to 28

U.S.C. § 1332 are controlling. See Sayers v. Sears, Roebuck &

, 5 !

1985); Electronic Data Systems Corp. v. Kinder, 360 F. Supp. 1044,

1047 (N.D. Tex.), aff'd, 497 F.2d 222 (5th Cir. 1974). However

when Plaintiff attempted to bring in two new defendants who

contest diversity jurisdiction, the burden of proving diversity

shifted to the Plaintiff as the party invoking the Court's jurisdic-

tion over these new parties. See, e.g., Lang v. Windsor Mt. Joy

Mut. Ins. Co., 487 F. Supp. 1303, 1305 (E.D. Pa.), aff'd, 636 F.2d

1209 (3d Cir. 1980); National Spinning Co. v. Washington, 312 F.

Supp. 958, 961 (E.D.N.C. 1970).

App. 6

Co., 732 F. Supp. 654, 655 (W.D. Va. 1990). Because Plain-

tiff is proceeding “in her representative capacity as

Administratrix,” her citizenship for purposes of diversity

jurisdiction will be deemed to be that of the Decedent.

Plaintiff's Opposing Memorandum, at 1.

According to the record, the Decedent in the instant

case was a citizen* of North Carolina at the time of his

death. Plaintiff, a deemed North Carolina citizen under

§ 1332(c)(2), cannot bring suit against Duke and B & D,

both North Carolina corporations, in diversity. This

action must therefore be dismissed as to Duke and B & D

under Fed. R. Civ. P. 12(b)(1).

Decedent was a citizen of Louisiana until his dis-

charge from military service in 1984. He was born, raised,

and educated in Louisiana, and his parents remained in

Louisiana. See Affidavit of Brenda Janeau, dated June 6,

1991, and attached as Exhibit C to Plaintiff’s Opposing

Memorandum [“Brenda Janeau Affidavit”]; Plaintiff's

Answers to Interrogatories, dated February 22, 1990, and

attached as Exhibit B to Memorandum in Support of

4 For purposes of 28 U.S.C. § 1332, citizenship and domicile

are synonymous. See, e.g., Sadat v. Mertes, 615 F.2d 1176, 1180

(7th Cir. 1980); Guerrero v. Katzen, 571 F. Supp. 714, 722 (D.C.

1983); Webb v. Nolan, 361 F. Supp. 418, 421 (M.D.N.C. 1972), aff'd,

484 F.2d 1049 (4th Cir. 1973), app. dism., 415 U.S. 903 (1974);

Griffin v. Matthews, 310 F. Supp. 341, 342 (M.D.N.C. 1969), aff'd,

423 F2d 272 (4th Cir. 1970); 1 Moore’s Federal Practice para.

0.74[3], at 779. However, residence is not the same as domicile or

citizenship. See, e.g., Jagiella v. Jagiella, 647 F.2d 561, 563 (Sth Cir.

1981); Banks v. St. Mary’s Hosp. & Medical Center, 558 F. Supp.

1334, 1335 (D. Colo. 1983); Sasso v. Koehler, 445 F. Supp. 762, 764

(D. Md. 1978); 1 Moore's Federal Practice para. 0.74[3.-2], at 782.

App. 7

Defendant Pitman Manufacturing Company’s Motion to

Compel Discovery from Plaintiff, from Louisiana Record

(Decedent “received an honorable discharge [from mili-

tary service] in 1984”). In 1984, Decedent moved to North

Carolina. See Brenda Janeau Affidavit (“following his dis-

charge from military service, John Janeau traveled to the

State of North Carolina, where he was employed tempo-

rarily and sporadically by South Eastern Boring Contrac-

tors [sic]”).

Although often considered prima facie evidence of

domicile, a mere change in residence by itself is insuffi-

cient to alter one’s domicile or citizenship. See, e.g.

Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir. 1972); Korn

v. Korn, 398 F.2d 689, 691 n.4 (3d Cir. 1968); Hakkila v.

Consolidated Edison Co., 745 F. Supp. 988, 990 (S.D.N.Y.

1990); Ratner v. Lucisano Bros., 505 F. Supp. 124, 126 (E.D.

Pa. 1981); Webb, 361 F. Supp. at 420-21; Seaboard Finance

Co. v. Davis, 276 F. Supp. 507, 509 (N.D. Ill. 1967). In order

to effect a change in domicile or citizenship, one must

take up residence in a different domicile with the intent

to remain there. See, e.g., Sadat, 615 F.2d at 1180; Mas, 489

F.2d at 1399; Krasnov, 465 F.2d at 1300; Korn, 398 F.2d at

691 n.4; Abbott v. United Venture Capital, Inc., 718 F. Supp.

823, 826 (D. Nev. 1988); Ferrara v. Ibach, 285 F. Supp. 1017,

1018-19 (D.S.C. 1968); 1 Moore’s Federal Practice para. -

0.74[3.-1], at 780. In determining a person’s citizenship,

the Court may consider such factors as the person’s dec-

larations, place of business, payment of taxes, house of

residence, driver’s license and automobile registration

and title, ownership of real and personal property, tele-

phone number and listing, payment for utilities, banking,

App. 8

receipt of mail, and exercise of political rights or satisfac-

tion of the domicile’s requirements to register and vote.

See, e.g., Krasnov, 465 F.2d at 1301; Simmons v. Skyway of

Ocala, 592 F. Supp. 356, 359 (S.D. Ga. 1984); Knapp v. State

Farm Ins., 584 F. Supp. 905, 907 (E.D. La. 1984); Miller

Dress Factory, Inc. v. Douglas, 385 F. Supp. 874, 877 (D.P.R.

1974); Webb, 361 F. Supp. at 421-22; Griffin, 310 F. Supp. at

343; 1 Moore's Federal Practice para. 0.74[3.-3], at 787-89.

An evaluation of the objective facts in this case points

to Decedent’s intentional change of domicile from Louisi-

ana to North Carolina. From 1984 to the date of the

accident, Decedent lived in Rutherford County, North

Carolina, and was employed, at least periodically, by

Southeastern, a North Carolina corporation located in

Forest City, North Carolina. See, e.g., Defendant Pitman’s

Memorandum in Support of Motion to Transfer Pursuant

to 28 US.C. § 1404(a), at 3, filed May 21, 1990, from

Louisiana Record; Exhibit A of Defendant Duke Power's

Motion to Dismiss and for Summary Judgment, filed

April 18, 1991 (Pleading No. 23) (Death Certificate of John

Janeau); Memorandum in Support cf Defendant B & D’s

Motion for Summary Judgment, at 1, filed May 20, 1991

(Pleading No. 27); Brenda Janeau Affidavit. There is no

evidence that Decedent lived or worked anywhere other

than North Carolina during this time. See Brenda Janeau

Affidavit. In 1988, Decedent started his own family in

North Carolina by marrying Geraldine Harris Janeau, a

native of Rutherford County, North Carolina, and father-

ing Patricia Lynn Janeau, who was born in Rutherfordton,

North Carolina. See Exhibit 5 of Defendant Duke's

Request for Judicial Notice, filed June 19, 1991 (Pleading

No. 36) [“Judicial Notice Request”] (Rutherford County

App. 9

Board of Elections Certification of Voter Registration for

Geraldine Harris Janeau, listing her place of birth as

Rutherford County); Exhibit 6 of Judicial Notice Request

(Birth Certificate of Patricia Lynn Janeau). Decedent's

wife and child have remained in Rutherford County to

this date. See Exhibit 4 of Judicial Notice Request (1990

Rutherford County Property Tax Listing Form for Ger-

aldine Janeau); Exhibit 5 of Judicial Notice Request.

At the time of the accident, Decedent’s automobile

was registered with the North Carolina Department of

Motor Vehicles, displayed a 1987 North Carolina license

tag, and was listed with the Rutherford County Tax Office

for purposes of property tax payments in North Carolina.

See Exhibit 3 of Judicial Notice Request (Rutherford

County Tax Office Listing for John Ray Janeau). Decedent

had a North Carolina driver’s license since at least Octo-

ber, 1986, and an extensive history of traffic violations, all

of which occurred in North Carolina. See Exhibit 1 of

Judicial Notice Request (North Carolina Department of

Motor Vehicles Driver’s License Check for John Ray Jan-

eau). Decedent incurred various expenses in the State of

North Carolina, including taxes. See, e.g., Exhibit 2 of

Judicial Notice Request (1988 Rutherford County Tax Col-

lector Statement of Taxes Due for John Ray Janeau). Dece-

dent had obtained both a North Carolina telephone

number and a North Carolina telephone directory listing.

See BellSouth Advertising & Publishing Corporation,

Southern Bell Telephone Directory for Rutherford County,

August 1988-1989, at 33 (1988). Decedent maintained a

North Carolina mailing address. See Exhibits 1, 2, and 3 of

Judicial Notice Request. Although no evidence has been

App. 10

presented that he was registered to vote in North Caro-

lina, Decedent satisfied the North Carolina requirements

to register and vote in Rutherford County, “the residence

_ in which his habitation was fixed, and to which,

whenever he [was] absent, he [had] the intention of

returning.” N.C. Gen. Stat. § 163-57(1) (1987). See Webb,

361 F. Supp. at 422. Decedent's wife has since registered

to vote in Rutherford County, North Carolina. See Exhibit

5 of Judicial Notice Request. Subsequent to the accident, a

worker’s compensation proceeding based on Decedent's

accident was instituted in North Carolina, under the laws

of North Carolina, and death benefits were paid there-

under. See Notice of Deposition of Brenda Janeau, at 2,

filed August 17, 1990 (Pleading No. 4); Notice of Deposi-

tion of Brenda Janeau, at 2, filed September 4, 1990

(Pleading No. 5); Answer of Defendant B & D, at 6, filed

April 11, 1991 (Pleading No. 22).

In rebuttal, Plaintiff presents two untimely-filed affi-

davits which purport to demonstrate Decedent's stated

intention either to maintain Louisiana as his permanent

domicile or to move back to Louisiana permanently. The

first affidavit, filed by one Vernon Bird, stated that the

Decedent had accepted employment with Bird in Louisi-

ana prior to his accident. Affidavit of Vernon Bird, dated

June 6, 1991, and attached as Exhibit B to Plaintiff's

Opposing Memorandum [“Bird Affidavit”]. Shortly

before his accident, Decedent purportedly stated his

intention to Bird to “begin his employment as soon as he

made housing arrangements for his family in Louisiana.”

Id. The second affidavit, filed by the Plaintiff in this

action, described Decedent's childhood in Louisiana, his

military service in the Philippines, and his subsequent

eee

— |

App. 11

employment and residence in North Carolina. Brenda

Janeau Affidavit. Plaintiff's affidavit then sets forth an

apparent inconsistency as to Decedent’s domicile. Plain-

tiff first makes the conclusory, unsupported statement

that Decedent “maintained his permanent residence and

domicile in the State of Louisiana.” Id. at 1. This assertion

is then undercut by a series of statement suggesting that

Decedent intended to permanently change his domicile

back to Louisiana: “John Janeau expressed his intention to

return to Louisiana”; “John Janeau expressed his intention

to return permanently to Louisiana in order to work for Mr.

Bird as soon as living accommodations could be arranged

in Louisiana for John Janeau and his family”; and “before

returning to Louisiana to make permanent living arrangements

for himself and his family, John Janeau died in North

Carolina.” Id. at 2 (emphasis added).

here are numerous factors weighing against the per-

suasiveness of these statements. First, the question of

domicile is to be evaluated in terms of objective facts;

statements of intent, particularly when presented second-

hand as in the instant case, are entitled to little weight

when in conflict with such facts. See, e.g., Freeman v.

Northwest Acceptance Corp., 754 F.2d 553, 556 (5th Cir.

1985); Hendry v. Masonite Corp., 455 F.2d 955, 956 (5th

Cir.), cert. denied, 409 U.S. 1023 (1972); Korn, 398 F.2d at

691; Garner v. Pearson, 374 F. Supp. 580, 589 (M.D. Fla.

1973); Webb, 361 F. Supp. at 421; Tanzymore v. Bethlehem

Steel Corp., 325 F. Supp. 891, 894 (E.D. Pa. 1971), aff'd, 457

F.2d 1320 (3d Cir. 1972); Griffin, 310 F. Supp. at 343; 1

Moore's Federal Practice para. 0.74[3.-3], at 789. The evi-

dence outlined above demonstrates that, prior to his

demise, Decedent had effectuated a change in domicile

App. 12

from Louisiana to North Carolina, in that he had changed

his residence to, was physically present in, and intended

to remain in North Carolina indefinitely. See, e.g., Sadat,

615 F.2d at 1180; Mas, 489 F.2d at 1399; Ferrara, 285 F.

Supp. at 1018-19. “As soon as the requisite intention is

coupled with physical presence, a new domicile is cre-

ated; there is no required minimum period of presence.” 1

Moore’s Federal Practice para. 0.74[3.-3], at 784-85 (footnote

omitted). See also Hawes, 598 F.2d at 701; Bair v. Peck, 738

F. Supp. 1354, 1355 (D. Kan. 1990).

Second, Decedent's thoughts of moving back to Loui-

siana are insufficient to alter his North Carolina domicile

without his physical and intentional return to Louisiana.

See, e.g., Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986);

Hakkila, 745 F. Supp. at 990; Carter v. McConnell, 576 F.

Supp. 556, 558 (D. Nev. 1983); Reynolds v. Ranta, 362 F.

Supp. 333, 334 (W.D. Pa. 1973); 1 Moore’s Federal Practice

para. 0.74[3.-3], at 787 (“[A] general or floating intention

to return to an old domicile or go elsewhere at some

indefinite time in the future does not prevent the estab-

lishment [sic] of a domicile in one’s present state of

residence.”). The proffered affidavits concede that Dece-

dent had yet to physically relocate in Louisiana. See Bird

Affidavit; Brenda Janeau Affidavit. Absent an affirmative

change of citizenship back to Louisiana, Decedent's

North Carolina citizenship is presumed to remain intact.

See, e.g., Lew, 797 F.2d at 751; Scoggins v. Pollock, 727 F.2d

1025, 1026-27 (11th Cir. 1984).

Finally, Plaintiff's proffered affidavits were served

and filed on June 12 and 13, 1991, respectively, two to

three days after the June 10 hearing on the pending

motions in this matter and in direct violation of the

App. 13

language of Fed. R. Civ. P. 6(d): “opposing affidavits may

be served not later than 1 day before the hearing.” The

untimeliness of Plaintiff’s proffered affidavits renders

them null.

Plaintiff argues that, because the “Succession of John

Janeau” is a separate legal entity created and existing

under the laws of Louisiana, and because this case should

be controlled by Louisiana law, the “Succession” should

be deemed to have Louisiana citizenship in its own right.

See Plaintiff's Opposing Memorandum. The determina-

tion of a litigant’s citizenship for purposes of diversity

jurisdiction is controlled by federal common law, not by

the law of any state. See, e.g., Rodriguez-Diaz v. Sierra-

Martinez, 853 F.2d 1027, 1030 (1st Cir. 1988); Mas, 489 F.2d

at 1399; Ziady v. Curley, 396 F.2d 873, 874 (4th Cir. 1968);

Smith v. Cessna Aircraft Co., 571 F. Supp. 433, 437

(M.D.N.C. 1983); 1 Moore’s Federal Practice para. 0.74[3.-1],

at 781. Furthermore, the Succession has not been named

as a party to this action, rendering its citizenship

5 Plaintiff, focusing on a perceived conflict between the

laws of North Carolina and Louisiana, seeks application of Lou-

isiana law pursuant to the Supreme Court decisions in Van

Dusen v. Barrack, 376 U.S. 612 (1964), and Ferens v. John Deere

Company, 494 U.S. 516, 110 S. Ct. 1274 (1990). See, e.g., Plaintiff's

Opposing Memorandum, at 3-7. The basic premise in the Van

Dusen line of cases is that “[a] transfer under [28 U.S.C.]

§ 1404(a) . . . does not change the law applicable to a diversity

case.” Ferens, 494 U.S. at __, 110S. Ct. at 1280 (emphasis added).

In other words, the prerequisite for the application of Van

Dusen, which Plaintiff presupposes in the instant case (see, ¢.g.,

Plaintiff’s Opposing Memorandum, at 3), is complete diversity

of citizenship. As demonstrated herein, a finding of complete

diversity is unwarranted in the instant case.

App. 14

irrelevant for diversity purposes. Because Plaintiff is pro-

ceeding as the Decedent’s legal representative, 28 U.S.C.

§ 1332(c)(2) requires that she be considered, for purposes

of diversity jurisdiction, a citizen of North Carolina.

B. Duke and B & D’s Motions to Dismiss

The postremoval addition of Duke and B & D as

Defendants, and the concomitant loss of complete diver-

sity, divests this Court of diversity jurisdiction. However,

the misjoinder of such nondiverse parties cannot be the

sole basis for the dismissal of an action. Fed. R. Civ. P. 21.

“Under Rule 21, a court may preserve diversity jurisdic-

tion by dismissing nondiverse parties, as long as the

parties are not indispensable under Rule 19.” 1 Moore's

Federal Practice para. 0.74[1], at 768 (footnotes omitted).

The presence of Duke and B & D as parties in this action

would be desirable, in that their participation would

facilitate the full resolution of all parties’ claims pertain-

ing to Decedent’s fatal accident. However, these two

concurrence of negligence in machine design (by Pitman), fail-

ure to insulate and properly erect power lines (by Duke), and

failure to insure and maintain a safe and proper work site (by B

& D). See Amended Complaint. These allegations of the joint

and several liability run throughout the course of Plaintiff’s

pleadings in this matter. See, e.g., Plaintiff’s Opposing Mem-

orandum; Plaintiff’s Memorandum in Support of Motion for

Leave to File First Supplemental and Amending Complaint,

filed December 11, 1990 (Pleading No. 18); Defendant Pitman’s

Motion to Transfer Pursuant to 28 U.S.C. § 1404(a), dated May

21, 1990, at 11-12, from Louisiana Record; Plaintiff’s Petition for

damages, dated November 29, 1989, from Louisiana Record.

App. 15

nondiverse Defendants are not “indispensable” within

the meaning of Rule 19. “[Rule 19] is not at variance with

the settled authorities holding that a tortfeasor with the

usual ‘joint-and-several’ liability is merely a permissive

party to an action against another with like liability.

Joinder of these tortfeasors continues to be regulated by

Rule 20....” Notes of Advisory Committee on Rule 19,

1966 Amendment General Considerations (citations omit-

ted).

The permissive joinder provision in Rule 20 is

unavailable in the instant case, since the joinder of Duke

and B & D would deprive this Court of diversity jurisdic-

tion. However, this case can readily and equitably pro-

ceed without Duke and B & D. The absence of these

nondiverse Defendants is of little consequence to the

Plaintiff because the theory of joint and several liability,

upon which Plaintiff proposes to proceed in this action,

allows her to recover the entire amount of damages, if

any, from any one of the joint tortfeasors. See, e.g., Stuckey

v. Northern Propane Gas Co., 874 F.2d 1563, 1572 n.11 (11th

Cir. 1989); United States v. Monsanto Co., 858 F.2d 160,

171-72 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989);

Diggs v. Hood, 772 F.2d 190, 193 (5th Cir. 1985); Transgo,

Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1023

(9th Cir. 1985), cert. denied, 474 U.S. 1059 (1986); In re

Uranium Antitrust Litigation, 617 F.2d 1248, 1257 (7th Cir.

1980). Neither would Defendant Pitman be prejudiced by

the absence of Duke and B & D, for Pitman may avail

itself of the third party practice provisions of Rule 147 or

? See, e.g., Karcher v. May, 484 U.S. 72, 77 (1987); Stewari v.

American Int'l Oil & Gas Co., 845 F.2d 196, 199 (9th Cir. 1988);

App. 16

a subsequent contribution action.® The proper remedy in

this case is to drop.Defendants Duke and B & D as

misjoined parties under Rule 21. See, ¢.g., Miller v. Leaven-

worth-Jefferson Elec. Coop., Inc., 653 F.2d 1378, 1382 (10th

Cir. 1981); Zepik v. Tidewater Midwest, Inc., 719 F. Supp.

751, 755 (N.D. Ind. 1989); South Carolina Elec. & Gas Co. v.

Ranger Constr. Co., 539 F. Supp. 578, 580 (D.S.C. 1982).

Defendants Duke and B & D are hereby dismissed for

lack of diversity jurisdiction. Fed. R. Civ. P. 12(b)(1). As a

result of this dismissal, Duke and B & D’s motions for

summary judgment are denied as moot.

C. Pitman’s Motion to Dismiss

In resolving Pitman’s motion to dismiss, the Court

must decide whether North Carolina or Louisiana law

controls Plaintiff’s death by wrongful act claim. Because

Decedent was a domiciliary of North Carolina at the time

Watergate Landmark Condominium Unit Owners’ Ass'n v. Wiss,

Janey, Elstner Assocs., Inc., 117 F.R.D. 576, 577 (E.D. Va. 1987);

Hanhauser v. United States, 85 F.R.D. 89, 90-91 (M.D. Pa. 1979). So

structured, the absence of complete diversity between Plaintiff

and Third Party Defendants Duke and B & D would not divest

this Court of diversity jurisdiction. See, e.g., Fawvor v. Texaco,

Inc., 546 F.2d 636, 638 (5th Cir. 1977); Lamar Haddox Contractor,

Inc. v. Potashnick, 552 F. Supp. 11, 13 (M.D. La. 1982). The struc-

tural realignment of parties pursuant to Rule 14 would not then

permit Plaintiff to re-amend her complaint to name Duke and B

& D as additional defendants. See Owen Equip. & Erection Co.,

437 U.S. at 373-77.

8 See, e.g., Diggs, 772 F.2d at 193; Ducre v. Executive Officers of

Halter Marine, Inc., 752 F.2d 976, 984 (5th Cir. 1985); Premier Corp.

v. Economic Research Analysts, Inc., 578 F.2d 551, 554 (4th Cir.

1978); N.C. Gen. Stat. §§ 1B-1 et seq. (1983).

App. 17

of his death, the Court finds that North Carolina has

exclusive jurisdiction over the disposition of the Dece-

dent’s estate.

The domiciliary, or original, administration of

the estates of all decedents domiciled in North

Carolina at the time of death shall be under the

jurisdiction of this State and of a proper clerk of

superior court in this State, and the original

probate of all wills of such persons shall be in

this State. Any administration of the estate and

any probate of a will of such decedents outside

North Carolina shall be ancillary only.

N.C. Gen. Stat. § 28A-26-1 (1984). See also N.C. Gen. Stat.

§ 28A-2-1 (jurisdiction for the administration, settlement,

and distribution of decedent’s estate rests with the clerk

of superior court of each county in North Carolina). “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

has his domicile at the time of his death... . “ N.C. Gen.

Stat. § 28A-3-1 (Supp. 1990). As established supra, Dece-

dent was a domiciliary of Rutherford County, North Car-

olina at the time of his demise. The jurisdiction of the

clerk of superior court for Rutherford County over the

administration, settlement, and distribution of Decedent's

estate, including the proper appointment of a personal

administrator, is statutory, original, and exclusive. See,

e.g., In re Estate of Davis, 277 N.C. 134, 143-44, 176 S.E.2d

825, 830-31 (1970); In re Estate of Lowther, 271 N.C. 345,

353-54, 156 S.E.2d 693, 700 (1967); Morris v. Morris, 245

N.C. 30, 32, 95 S.E.2d 110, 112 (1956); Brissie v. Craig, 232

N.C. 701, 704, 62 S.E.2d 330, 332 (1950); Central Bank &

Trust Co. v. Board of Comm'rs, 195 N.C. 678, 680-81, 143

App. 18

362, 368 S.E.2d 447, 450, review denied, 323 N.C. 171, 373

S.E.2d 104 (1988); In re Estate of Longest, 74.N.C. App. 386,

390, 328 S.E.2d 804, 807, cert. denied and app. dism., 314

N.C. 330, 333 S.E.2d 488 (1985); In re Estate of Snipes, 45

N.C. App. 79, 81, 262 S.E.2d 292, 294 (1980).

Under the North Carolina statutes, there are

numerous problems with Plaintiff's appointment as

administratrix in the State of Louisiana. First, absent issu-

ance of letters testamentary designating Decedent's

mother as executor, North Carolina’s statutory hierarchy

for the granting of letters of administration would favor

Decedent’s surviving spouse as personal representative

over Decedent’s mother. N.C. Gen. Stat. § 28A-4-1(b)(1)

(Supp. 1990).° There is no indication on the record that

the letter testamentary issued to Plaintiff in Louisiana

satisfies the North Carolina statutory requirements. Sec-

ond, “[n]o person is qualified to serve as a personal

representative who . . . [i]s a nonresident of this State

who has not appointed a resident agent to accept service

of process in all actions or proceedings with respect to the

estate, and caused such appointment to be filed with the

court....” N.C. Gen. Stat. § 28A-4-2 (1984). There is no

indication on the record that Plaintiff has complied with

this requirernent. Third, Plaintiff has failed to demon-

strate her satisfaction of the other statutory prerequisites

® Such appointment of Decedent’s spouse as personal rep-

resentative would have been particularly prudent in the instant

case, in light of the fact that Decedent’s spouse remains a domi-

ciliary of Rutherford County. See Exhibits 4, 5, and 6 of Judicial

Notice Request.

App. 19

for the valid appointment of a personal representative.

See, e.g., N.C. Gen. Stat. §§ 28A-6-1 (requiring sworn

affidavits for the issuance of letters of administration or

letters testamentary); 28A-7-1 (oath required before issu-

ance of letters); 28A-8-1 (bond required before issuance of

letters for nonresident executor who has failed to appoint

a resident agent to accept service of process). Finally,

even if Decedent was a nonresident of North Carolina at

the time of his death, Plaintiff has failed to comply with

the domiciliary and ancillary administration require-

ments governing the collection of Decedent’s North Caro-

lina-based assets, which include the statutory right to a

death by wrongful act cause of action predicated upon

allegedly tortious conduct in North Carolina. N.C. Gen.

Stat. § 28A-26-1 et seq. See also In re Scarborough, 261 N.C.

565, 568, 135 S.E.2d 529, 531 (1964); Fann v. North Carolina

R.R., 155 N.C. 136, 140, 71 S.E. 81, 82 (1911); N.C. Gen.

Stat. §§ 28A-3-1, 28A-18-1 et seq. (1984 & Supp. 1990). As

a foreign administrator, Plaintiff must qualify locally

before she has the capacity to bring a death by wrongful

act action in this State. Burcl v. North Carolina Baptist

Hosp., Inc., 306 N.C. 214, 217-18, 293 S.E.2d 85, 87-88

(1982).

Because the right to a death by wrongful act action is

exclusively statutory, it must be asserted in strict confor-

mity therewith. See, e.g., Burcl, 306 N.C. at 217, 293 S.E.2d

at 87; Webb v. Eggleston, 228 N.C. 574, 576, 46 S.E.2d 700,

702 (1948); Monfils v. Hazlewood, 218 N.C. 215, 216, 10

S.E.2d 673 (1940), cert. denied, 312 U.S. 684 (1941); Bowling

v. Combs, 60 N.C. App. 234, 236-37, 298 S.E.2d 754, 756,

petition denied, 307 N.C. 696, 301 S.E.2d 389 (1983). Under

N.C. Gen. Stat. § 28A-18-1(a), only the duly-appointed

App. 20

personal representative of the Decedent can maintain an

action for damages for Decedent’s death by wrongful act.

See, e.g., Miller v. Perry, 307 F. Supp. 633, 634 (E.D.N.C.

1969), rev'd on other grounds, 456 F.2d 63 (4th Cir. 1972);

Burcl, 306 N.C. at 217, 293 S.E.2d at 87; Journigan v. Little

River Ice Co., 233 N.C. 180, 182-83, 63 S.E.2d 183, 185

(1951); Hanes v. Southern Pub. Util. Co., 191 N.C. 13, 18,

131 S.E. 402, 404 (1926); Merchants Distrib. Inc. v. Hutchin-

son, 16 N.C. App. 655, 659, 193 S.E.2d 436, 439 (1972). A

personal representative can sue only in his official, and

not in his private or individual, capacity. See, e.g., McCoy

v. Atlantic Coast Line R.R., 229 N.C. 57, 59, 47 S.E.2d 532,

534 (1948); Hall v. Southern R.R., 146 N.C. 345, 59 S.E. 879

(1907); N.C. Gen. Stat. §§ 28A-18-1 to 18-3 (1984 & Supp.

1990).

Because Plaintiff is an unqualified personal represen-

tative under North Carolina law, she has no legal capacity

to initiate a death by wrongful act claim in a representa-

tive capacity. See, e.g., Graves v. Welborn, 260 N.C. 688,

690-91, 133 S.E.2d 761, 762 (1963); Monfils, 218 N.C. at 216,

10 S.E.2d at 673-74; Johnson v. Wachovia Bank & Trust Co.,

22 N.C. App. 8, 10, 205 S.E.2d 353, 355 (1974); Reid v.

Smith, 5 N.C. App. 646, 169 S.E.2d 14 (1969). Furthermore,

Plaintiff may not maintain a death by wrongful act action

in her individual capacity as a parent of the Decedent.

See, e.g., Killian v. Southern R.R., 128 N.C. 261, 38 S.E. 873

(1901); Scarlett v. Norwood, 115 N.C. 284, 20 S.E. 459

(1894); Boulton v. Onslow County Bd. of Educ., 58 N.C. App.

807, 295 S.E.2d 246 (1982). Hence, absent representative

or individual capacity to sue, Plaintiff is without standing

to institute this action against Pitman, and this claim

App. 21

must be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) and

(6).

Even if this death by wrongful act claim is controlled

by Louisiana law, the Court finds that Plaintiff’s failure to

strictly adhere to the dictates of the Louisiana Code

would warrant a dismissal of this action. Both Louisiana

and North Carolina recognize two elements of damages

implicit in a death by wrongful act action: the first, con-

sidered to be an asset of the estate, encompasses Dece-

dent’s pain and suffering and the ensuing hospital and

medical expenses attributable to the wrongful injury; the

second contemplates the loss suffered by Decedent's fam-

ily and inures to the benefit of the Decedent's next of kin.

See, e.g., Collins v. Zachary Hardwood Lumber Co., 207 So.

2d 796 (La. Ct. App. 1968); Stetson v. Easterling, 274 N.C.

152, 161 S.E.2d 531 (1968); La. Civ. Code Ann. art. 2315 et

seq. (West 1990); N.C. Gen. Stat. § 28A-18-1 et seq. (1984).

However, Louisiana splits these two elements of damages

into separate causes of action (wrongful death and sur-

vival), while North Carolina consolidates them into a

single measure of recoverable damages in a death by

wrongful act action. Compare La. Civ. Code Ann. arts.

2315.1, 2315.2 with Kendrick v. Cain, 272 N.C. 719, 159

S.E.2d 33 (1967); N.C. Gen. Stat. § 28A-18-2(b). Louisiana

creates a statutory hierarchy of persons authorized to

assert the wrongful death and survival causes of action.

See La. Civ. Code Ann. arts. 2315.1, 2315.2.

Under the Louisiana Code, both the survival and the

wrongful death actions may be asserted by “(1) The sur-

viving spouse and child or children of the deceased, or

either the spouse or the child or children; (2) The surviv-

ing father and mother of the deceased, or either of them if

App. 22

he left no spouse or child surviving. ...” La. Civ. Code Ann.

arts. 2315.1, 2315.2 (emphasis added). Only the survivai

action “may be urged by the decedent’s succession repre-

sentative in the absence of any class of beneficiary set out

in the preceding’ Paragraph [i.e. absent a surviving

spouse, child, or parent].” La. Civ. Code Ann. art.

2315.1.B (emphasis added). “It is clear . . . that, if a spouse

or child survives the decedent, surviving parents have no

right to recover damages. .. . ” DeVerges v. Bourg, 314 So.

2d 558, 560 (La. Ct. App. 1975). In other words, even if

this action were brought under the Louisiana survival

and wrongful death statutes, neither Plaintiff nor the

Succession of John Janeau could properly assert the

claims presented in the instant case because of the sur-

vival of Decedent’s spouse and daughter. See, e.g., Ascant

v. Hughes, 470 So. 2d 207 (La. Ct. App.), cert. denied, 472

So. 2d 919, cert. denied and app. dism., 474 U.S. 1001 (1985);

LaBorde v. Eagle Trucking Co., 409 So. 2d 1266 (La. Ct.

App.), cert. denied, 413 So. 2d 506 (1982); DeVerges, 314 So.

2d at 560.

D. Stay of Dismissal

Although Pitman’s motion to dismiss is well taken,

due to the Plaintiff’s incapacity to sue, justice requires

that the dismissal of Plaintiff’s claims against Pitman be

held in abeyance for thirty days. This action is warranted

because Plaintiff has one final recourse, under Fed. R.

Civ. P. 15(c) and 17(a), by which she can avoid a complete

termination of her cause of action.

Federal courts in interpreting Rules 15(c)

and 17(a) have uniformly held that amendments

App. 23

showing a change in plaintiff’s capacity to main-

tain the action relate back to the action’s com-

mencement. This principle has been specifically

applied to wrongful death actions in which the

plaintiff had not under applicable state law duly

qualified as the personal representative until

after the statute of limitations had run on the

claim. The courts have permitted plaintiffs to

show by a new pleading the due qualification

and have the pleading relate back to the action’s

commencement... .

Therefore, for relation back purposes, we

shall treat supplement pleadings filed pursuant

to Rule 15(d) the same as amendments filed

pursuant to other sections of Rule 15. We hold

that where, as here, the original pleading gives

notice of the transactions and occurrences upon

which the claim is based, a supplemental plead-

ing that merely changes the capacity in which

the plaintiff sues relates back to the commence-

ment of the action as provided in Rule 15(c).

Burcl, 306 N.C. at 226-28, 293 S.E.2d at 93-94 (footnotes

and citations omitted). Only Plaintiff’s proper qualifica-

tion as ancillary administrator or personal representative

and a supplemental pleading attesting to that fact can

prevent the loss of this otherwise time-barred cause of

action. See N.C. Gen. Stat. § 1-53(4) (1983) (two year

statute of limitation of death by wrongful act actions).

To date, no such supplemental pleading showing

Plaintiff's satisfaction of the North Carolina personal rep-

resentative statutory requirements has been filed. How-

ever, “[n]o action shall be dismissed on the ground that it

is not prosecuted in the name of the real party in interest

until a reasonable time has been allowed after objection

App. 24

for ratification of commencement of the action by, or

joinder or substitution of, the real party in interest.” Fed.

R. Civ. P. 17(a). See Burcl, 306 N.C. at 230, 293 S.E. 2d at

94-95 (Rule 17(a) deals with questions of real party in

interest and capacity to sue). The Court cannot infer such

ratification from the record, but it may, since the Defen-

dants’ objections have only been recently filed, permit

Plaintiff or a similarly situated substitute (such as Dece-

dent’s spouse) reasonable time to seek proper qualifica-

tion as ancillary administrator or personal representative,

to file a supplemental pleading establishing such quali-

fication, and, thereby, to ratify the commencement of this

action.

Once Plaintiff has availed herself of this Rule 17(a)

reprieve, “leave [to amend or to file supplemental plead-

ings] shall be freely given when justice so requires.” Fed.

R. Civ. P. 15(a). In the instant case, as in Burcl,

Defendant [Pitman] had full notice of the trans-

actions and occurrences upon which this wrong-

ful death claim is based when the claim was

originally filed within the period of limitations

by plaintiff in her capacity as a foreign adminis-

trator. They can in no way be prejudiced by

allowing plaintiff by supplemental pleading to

show the change in her capacity to that of

locally qualified ancillary administrator, even

though this change occurred after the period of

limitations had run. The purpose served by the

statute of limitations - protection against stale

claims - is in no way compromised by allowing

such a pleading to relate back to the action’s

commencement. To hold otherwise would be to

return to hypertechnical pleading restrictions

inimical to just resolution of disputed claims,

App. 25

restrictions which our present rules of pleading

were designed to overcome.

Burcl, 306 N.C. at 230, 293 S.E.2d at 95. See also Davis v.

Piper Aircraft Corp., 615 F.2d 606, 611-14 (4th Cir.), cert.

dismissed, 448 U.S. 911 (1980); McNamara v. Kerr-McGee

Chem. Corp., 328 F. Supp. 1058 (E.D.N.C. 1971); Davis v.

Rhodes, 231 N.C. 71, 74, 56 S.E.2d 43, 45 (1949); Ledford v

Martin, 87 N.C. App. 88, 90, 359 S.E.2d 505, 506 (1987),

review denied, 321 N.C. 473, 365 S.E.2d 1 (1988). Defendant

Pitman would not [sic] prejudiced by a supplemental

pleading and amendment of the complaint since it has

had full notice of the transactions and occurrences upon

which this death by wrongful act claim is based since the

original filing of the complaint on November 29, 1989, in

the Louisiana state court. Defendants Duke and B & D

also suffer no prejudice since the statute of limitations on

Pitman’s available claim for contribution has yet to run.

See N.C. Gen. Stat. § 1B-3(c) (1982) (requiring separate

action for contribution to be commenced within one year

after judgment of liability has become final).

In summary, the Court finds that Plaintiff lacks the

capacity to sue Pitman in the instant case. However, in

light of the facts and the record before the Court, Plain-

tiff’s lack of any other relief if proper qualification and

subsequent ratification of the commencement of the

action is not allowed, the absence of prejudice suffered by

any of the Defendants by such qualification and ratifica-

tion, and the case law in this jurisdiction,'’® justice

10 Before the Burcl “transactions and occurrences” test for

the relation back of a supplemental pleading, North Carolina

courts required a good faith but mistaken belief that the party

App. 26

requires that Plaintiff be afforded thirty days from the

entry of this Order in which to establish her satisfaction

of the North Carolina statutory requirements for ancillary

administrator or personal representative qualification

and the commencement of a death by wrongful act action

in North Carolina. Justice further requires that, upon

such qualification, Plaintiff be allowed to amend the com-

plaint, and that such amendment be related back, for

purposes of the applicable statute of limitations, to the

date of the commencement of this action. Plaintiff's fail-

ure to qualify as an ancillary administrator or personal

representative under North Carolina law within thirty

days of the entry of this Order shall result in the dis-

missal of Plaintiff’s claims against Pitman.

bringing suit had properly qualified as a personal representa-

tive, see, e.g., Reid, 5 N.C. App. at 648-9, 169 S.E.2d at 16-17, or

proof that “oversight, inadvertence, excusable neglect, or that

justice required” amendment and relation back. Merchants Dis-

trib., 16 N.C. App. at 661, 193 S.E.2d at 440. Historically, North

Carolina courts also rejected amendment and relation back

where, as here, no application for letters of administration had

been filed. See, e.g., Graves, 260 N.C. at 696-97, 133 S.E.2d at 767;

Johnson, 22 N.C. App. at 10, 205 S.E.2d at 355. The Court finds

however, in light of Plaintiff’s reasonable albeit mistaken belief

that her creation of the Succession of John Janeau under Louisi-

ana law was sufficient for the commencement of this action, the

Reid and Merchants Distributors tests would be satisfied by the

facts of this case. Here, it was not apparent until after the

Louisiana case was removed to federal court and transferred to

North Carolina (both upon the motion of Defendant Pitman)

and after the wrongful death statute of limitations had expired

that qualification in North Carolina as personal representative

was necessary or even desirable for the maintenance of this

action. Therefore, amendment and relation back is proper under

both the Burcl and the Reid/Merchants Distributors tests.

ITI.

WwW

App. 27

ORDER

IT IS, THEREFORE, ORDERED that:

The Motion to Dismiss of Defendant Pitman Manufac-

turing Company is hereby STAYED for thirty (30)

days from the date of the entry of this Order, pending

Plaintiff’s proper qualification as a personal represen-

tative. Plaintiff’s failure to so qualify within the pre-

scribed time period shall result in dismissal of

Plaintiff's claims against Pitman due to Plaintiff’s

incapacity to sue;

The Motion to Dismiss of Defendant Duke Power

Company is ALLOWED, and Plaintiff’s claims against

Duke are hereby DISMISSED for lack of diversity

jurisdiction;

The Motion for Summary Judgment of Defendant

Duke Power Company is hereby DENIED as MOOT;

The Motion to Dismiss of Defendant B & D Contrac-

tors of Shelby, Inc. is ALLOWED, and Plaintiff’s

claims against B & D are hereby DISMISSED for lack

of diversity jurisdiction; and

rhe Motion for Summary Judgment of Defendant B &

D Contractors of Shelby, Inc. is hereby DENIED as

MOOT.

THIS the 24th day of October, 1991.

/s/ Richard L. Voorhees

RICHARD L. VOORHEES,

CHIEF JUDGE

UNITED STATES

DISTRICT COURT

App. 28

APPENDIX B

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL DOCKET NO. C-C-90-194-V

BRENDA JANEAU, _ )

eer )

rae, ) ORDER OF DISMISSAL

bias ) (Filed

PITMAN Dec. 4, 1991)

MANUFACTURING ?

COMPANY, INC., |

Defendant. )

)

THIS MATTER is before the Court on Defendant's

Motion to Dismiss the captioned civil matter due to Plain-

tiff’s incapacity to sue. For the reasons enumerated

herein, Defendant’s motion shall be allowed.

On October 25, 1991, this Court determined that

Plaintiff lacked the capacity to sue Defendant in the

instant case, due to Plaintiff’s failure to qualify properly

as a personal representative of Decedent John Ray Janeau

under the provisions of North Carolina law. See Mem-

orandum of Opinion and Order, filed October 25, 1991

(Pleading No. 39). In the interests of justice, however, the

Court held Defendant’s motion to dismiss in abeyance for

thirty days, pending Plaintiff’s satisfaction of the North

Carolina statutory requirements for ancillary administra-

tor or personal representative qualification. See id. at 2,

27. Upon timely satisfaction of this Requirement, Plaintiff

App. 29

was to be permitted to amend her complaint, with said

amendment to relate back to the date of the commence-

ment of this action. Id. at 26. Plaintiff was expressly

warned that “failure to qualify as an ancillary administra-

tor or personal representative under North Carolina law

within thirty days of the entry of this Order shall result in

the dismissal of Plaintiff’s claims against Pitman.” Id. at

26-27.

Including the additional 3 days provided by the ser-

vice-by-mail provision of Fed. R. Civ. P. 6(e), the deadline

for Plaintiff to establish her satisfaction of the Court's

Order of October 25, 1991, was November 27, 1991. The

Court notes that an attorney representing Plaintiff con-

tacted the undersigned’s chambers approximately five

days before the time limit expired, and was informed of

the November 27 deadline. To date, no pleading has been

filed by Plaintiff in an effort to prove her qualification as

the Decedent’s personal representative. Plaintiff has also

failed to request an extension of time within which to

comply with the October 25 Order. See Fed. R. Civ. P. 6(b).

“No action shall be dismissed on the ground that it is not

prosecuted in the name of the real party in interest until a

reasonable time has been allowed after objection for ratifica-

tion of commencement of the action by, or joinder or

substitution of, the real party in interest. ...” Fed. R. Civ.

P. 17(a) (emphasis added). See also Fed. R. Civ. P. 17(b)

(capacity to sue determined in accordance with the laws

of North Carolina); Davis v. Piper Aircraft Corp., 615 F.2d

606, 607-08 (4th Cir.), cert. dismissed, 448 U.S. 911 (1980).

The Court finds that such reasonable time has been

allowed for Plaintiff’s qualification, and that Plaintiff has

failed to so qualify.

App. 30

IT IS, THEREFORE ORDERED that Defendant's

Motion to Dismiss is hereby ALLOWED.

IT IS FURTHER ORDERED that Plaintiff’s claims in

the captioned civil matter are hereby DISMISSED due to

Plaintiff’s incapacity to sue Defendant in the instant case.

THIS the 4th day of December, 1991.

/s/ Richard L. Voorhees

RICHARD L. VOORHEES,

CHIEF JUDGE

UNITED STATES

DISTRICT COURT

App. 31

APPENDIX C

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL NO. C-C-90-194-V

BRENDA JANEAU,

Plaintiff,

VS.

PITMAN MANUFACTURING

COMPANY, INC.,

Defendant.

ORDER

(Filed

Dec. 19, 1991)

Ne eee eee”

THIS MATTER is before the Court on Plaintiff’s

motion for reconsideration of this Court’s Order of Dis-

missal, filed December 4, 1991 (Pleading No. 41). Plaintiff

requests that her claims in the captioned civil matter be

reinstated and that she be allowed to amend her Com-

plaint so as to allege her capacity to sue. For the reasons

stated herein, Plaintiff’s motion shall be allowed, and her

claims shall be reinstated.

On October 25, 1991, the Court found that Plaintiff

lacked the capacity to sue Defendant in the instant case

due to her failure to qualify properly as a personal repre-

sentative of the estate of John Ray Janeau under North

Carolina law. Memorandum of Opinion and Order, filed

October 25, 1991 (Pleading No. 39) [“Opinion”]. However,

pursuant to the dictates of justice and Fed. R. Civ. P. 15(a)

and 17(a), the Court afforded Plaintiff thirty days within

App. 32

which “to seek proper qualification as ancillary adminis-

trator or personal representative, to file a supplemental

pleading establishing such qualification, and, thereby, to

ratify the commencement of this action.” Id. at 24. In

other words, Plaintiff had until November 27, 1991, to

comply with the Court’s Opinion. See Fed. R. Civ. P. 6(e).

Plaintiff’s apparent failure to comply with the Court's

Opinion in a timely fashion resulted in the dismissal of

Plaintiff’s Claims. Order of Dismissal, filed December 4,

1991 (Pleading No. 41).

It has subsequently come to the Court’s attention

that, although counsel for the Plaintiff did not file a

supplemental pleading establishing proper qualification

and ratifying this action until December 11, 1991, Plaintiff

was properly qualified as an ancillary administrator on

November 25, 1991. See Plaintiff's Motion for Recon-

sideration and Reinstatement, filed December 11, 1991

(Pleading No. 42), and Letters of Ancillary Administra-

tion attached thereunto.

It is true that counsel for the Plaintiff was first noti-

fied of the question of Plaintiff's capacity to sue on or

about April 18, 1991, approximately six months prior to

the Court’s Opinion requiring Plaintiff to qualify as an

ancillary administrator under North Carolina law within

the ensuing thirty days. See Defendant’s Opposition to

Plaintiff’s Motion for Reconsideration and Reinstatement,

filed December 18, 1991 (Pleading No. 43) [“Opposition” J;

Defendant Duke Power Company’s Motion to Dismiss

and for Summary Judgment, filed April 18, 1991 (Plead-

ing No. 23). It is also true, as aptly stated by Defendant,

that the Court does not possess the gift of omniscience

and that a timely amended complaint is the only method

App. 33

by which the Court could be notified of Plaintiff’s quali-

fication as an ancillary administrator. Defendant’s Mem-

orandum Supporting Opposition at 3.

However, the chief concern enunciated in the Court’s

Opinion was Plaintiff’s capacity to maintain a cause of

action in this court. Once Plaintiff secured Letters of

Ancillary Administration on November 25, the basis for

the Court’s concern was eradicated. It is the policy of this

Court is [sic] to dispose of cases on their merits, and not

to purge the dockets on the basis of technical formalities.

Furthermore,

[t]he provision that no action shall be dismissed

on the ground that it is not prosecuted in the

name of the real party in interest until a reason-

able time has been allowed, after the objection

has been raised, for ratification, substitution,

etc., is added simply in the interests of jus-

toe. . .

Modern decisions are inclined to be lenient

when an honest mistake has been made in

choosing the party in whose name the action is

to be filed. . . . It is intended to prevent forfei-

ture when determination of the proper party to

sue is difficult or when an understandable mis-

take has been made.

Notes of the Advisory Committee on Rules, 1966 Amend-

ment to Fed. R. Civ. P. 17. The fact that Plaintiff has no

other remedy for the claims raised in the captioned civil

matter further justifies overlooking the inattentive han-

dling of the Court’s Opinion by counsel for the Plaintiff.

The Court hereby deems Plaintiff’s Motion for

Reconsideration and Reinstatement as the supplement

App. 34

pleading, required by the Court’s Opinion, establishing

proper qualification of Plaintiff as ancillary administrator.

Plaintiff must now establish ratification of the commence-

ment of the action, or joinder or substitution of the real

party in interest, as required by Fed. R. Civ. P. 17(a). To

satisfy this requirement, Plaintiff or her counsel must,

within ten (10) days of the entry of this Order, file an

amended complaint with this Court, enumerating the

claims asserted in the cause of action, establishing rat-

ification, joinder, or substitution, and altering the case

caption so as properly to reflect the representative capac-

ity in which Plaintiff is bringing this cause of action. Only

upon timely satisfaction of these requirements will Plain-

tiff’s amendments be deemed to “relate back” under Fed.

R. Civ. P. 15. Failure by Plaintiff or her counsel to so act

within thirty days of the entry of this Order shall result in

the dismissal of Plaintiff’s claims against Pitman, and the

possibility of sanctions against attorneys for the Plaintiff

under Fed. R. Civ. P. 11 and 16(f).

iT IS, THEREFORE, ORDERED that:

1. Plaintiff’s Motion for Reconsideration and Reinstate-

ment is hereby ALLOWED; and

2. Plaintiff have [sic] ten (10) days within which to file

an amended complaint, enumerating the claims

asserted in the cause of action, establishing ratifica-

tion of the commencement of the action, or joinder or

substitution of the real party in interest, and altering

the case caption so as to properly reflect the represen-

tative capacity in which Plaintiff is bringing this

cause of action. Failure by Plaintiff or her counsel to

so act within thirty days of the entry of this Order

shall result in the dismissal of Plaintiff’s claims

against Pitman, and the possibility of sanctions

App. 35

against attorneys for the Plaintiff under Fed. R. Civ. P.

ll and 16(f).

THIS the 18th day of December, 1991]

s/ Richard L. Voorhees

RICHARD L. VOORHEES,

CHIEF JUDGE

UNITED STATES DISTRICT

COURT

App. 36

APPENDIX D

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL NO. C-C-90-194-V

BRENDA JANEAU, )

; vr )

Plaintiff,

™ ) ORDER

stn (Filed

PITMAN MANUFACTURING lun. 30, 1992)

COMPANY, INC.,

)

Defendant. )

Aaa ae a eS a

THIS MATTER is before the Court on Plaintiff's

Motion for Reconsideration and Request for Oral Argu-

ment and memorandum in support thereof, filed May 22,

1992. Because Plaintiff's motion was filed within ten days

of the entry of Judgment, see Judgment, filed May 14,

1992 (Pleading No. 63), the Court will construe this

motion as a motion to alter or amend judgment under

Fed. R. Civ. P. 59(e).! For the reasons stated herein, Plain-

tiff’s motion for reconsideration and motion for oral

argument shall be denied.

1 See, e.g., Moody v. Pepsi-Cola Metro. Bottling Co., 915 F.2d

201 (6th Cir. 1990); Dalton v. First Interstate Bank, 863 F.2d 702,

703-04 (10th Cir. 1988); Moore v. Bethesda Fire Dep't, Inc., No.

90-2906, 1991 U.S. App. LEXIS 15113 at *11 (4th Cir. July 15,

1991) (slip op.) (citing Lavespere v. Niagara Machine and Tool

Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990)).

App. 37

I. PROCEDURAL HISTORY

The factual background and procedural history of the

instant case have been discussed in great detail in at least

two previous Orders by this Court. See Order of Dis-

missal, filed May 7, 1992 (Pleading No. 62) [“Dismissal

No. 2”]; Memorandum of Opinion and Order, filed Octo-

ber 25, 1991 (Pleading No. 39) [“October 25, 1991, Opin-

ion & Order”]. However, because the history of the two

and one-half year progression of this case through four

different courts in two different states played a signifi-

cant part in the Court’s decision to dismiss this case, the

Court will recount the procedural history of the case

herein.

On December 5, 1988, John Ray Janeau [“Decedent” |,

then an employee of Southeastern Boring Contractors,

Inc. [“Southeastern”], was electrocuted in a fatal con-

struction site accident in Charlotte, North Carolina. While

operating a Pitman HL-757 truck-mounted crane manu-

factured by the Defendant, Decedent and the crane came

into contact with an energized power line owned and

maintained by Duke Power Company [“Duke”]. The acci-

dent occurred on a job site maintained and managed by B

& D Contractors of Shelby, Inc. [“B & D”], who had

subcontracted with Southeastern for a portion of the

work to be compieted. Both Duke and B & D are North

Carolina corporations with their principal places of busi-

ness in North Carolina.

On November 2, 1989, Plaintiff, the mother of the

Decedent and a citizen of Louisiana, was appointed pro-

visional administratrix of the “Succession of John Ray

Janeau” by the 25th Judicial District Court for the Parish

App. 38

of Plaquemines, Louisiana. She commenced this wrongful

death action against Defendant, a Pennsylvania corpora-

tion with its principal place of business in Pennsylvania,

in the Civil District Court for the Parish of Orleans, State

of Louisiana, on November 29, 1989. Defendant filed a

notice of removal on January 4, 1990, thereby removing

this case to the United States District Court for the East-

ern District of Louisiana. After some preliminary discov-

ery,? the case was transferred on June 20, 1990, to the

Western District of North Carolina, Charlotte Division,

upon Defendant's motion.

Six months later,* without explanation for the delay,

Plaintiff moved to amend her complaint so as to name

Duke and B & D as co-Defendants, alleging for the first

time that those parties were “liable to plaintiff jointly,

severally, and in solido with each other and defendant,

Pitman Manufacturing, Inc.” Plaintiff's First Supplemen-

tal and Amending Complaint, filed December 6, 1990

2 There was apparently very little activity by either party

during the period from January, 1990, to June, 1990. Most

noticeably, Defendant successfully moved for a court order

compelling discovery from the Plaintiff, and Plaintiff filed two

notices of deposition of the Defendant. See Defendant Pitmar

Manufacturing Company's Motion to Compel Discovery from

Plaintiff, filed March 12, 1990 attached to Record as transferred

from United States District Court, Eastern District of Louisiana,

filed June 25, 1990 (Pleading No. 1) [“Louisiana Record” ];

Notice of 30(b)(6) Deposition, filed March 29, 1990 attached to

Louisiana Record; Re-Notice of 30(b)(6) Deposition, filed April

5, 1990 attached to Louisiana Record.

3 Between June 20, 1990, and December 6, 1990, Plaintiff

neither filed pleadings nor communicated with the Court in any

fashion.

App. 39

(Pleading No. 16). Leave was granted for the filing of the

amended complaint on December 12, 1990, and the case

was subsequently transferred to this Court on February

27, 1991, when a potential conflict of interest arose in

Charlotte. Although added as co-Defendants in Decem-

ber, 1990, neither Duke nor B & D were served by Plain-

tiff before March 25, 1991, again without explanation for

the delay. See Answer of B & D Contractors of Shelby, Inc.

at 4, filed April 11, 1991 (Pleading No. 22) [“B & D's

Answer” ]; Duke Power Co.’s Acknowledgment of Receipt

of Summons and Complaint, filed April 9, 1991 (Pleading

No. 21).

Responsive pleadings by Duke and B & D brought to

light the issues ot lack of diversity jurisdiction and Plain-

tiff’s incapacity to sue, due to her failure to qualify prop-

erly as a personal representative of Decedent's estate

under North Carolina law. See, e.g., B & D’s Answer at 3;

Duke Power Co.’s Motion to Dismiss and for Suinmary

Judgment at 2-3, filed April 16, 1991 (Pleading No. 23).

After considering oral arguments* and voluminous briefs

from all parties, the Court dismissed the case as to Duke

and B & D for lack of diversity jurisdiction, and afforded

Plaintiff thirty days from the October 25, 1991, filing of

that Opinion and Order, or until November 27, 1991,

within which “to seek proper qualification as ancillary

4+ The case came before the undersigned for oral argument

on June 10, 1990, on Duke’s motion to dismiss and for summary

judgment, B & D’s motion to dismiss and for summary judg-

ment, and Defendant’s motion to dismiss. All motions were

taken under advisement and the parties were allowed to submit

additional briefs as they saw fit.

App. 40

administrator or personal representative, fo file a supple-

mental pleading establishing such qualification, and, thereby,

to ratify commencement of this action.” October 25, 1991,

Opinion & Order at 24 (emphasis added). This additional

thirty-day period for qualification was permitted even

though “counsel for the Plaintiff was first notified of the

question of Plaintiff’s capacity to sue on or about April

18, 1991, approximately six months prior to the Court's

Opinion requiring Plaintiff to qualify as an ancillary

administrator under North Carolina law within the ensu-

ing thirty days.” Order at 2, filed December 19, 1991

(Pleading No. 44). “Plaintiff's failure to qualify as an

ancillary administrator or personal representative under

North Carolina law within thirty days of the entry of this

Order shall result in the dismissal of Plaintiff's claims

against Pitman.” Opinion & Order at 26-27 (emphasis

added).

As of December 3, 1991, the Court had received no

notice that Plaintiff had indeed qualified as a personal

representative under North Carolina law. Therefore, upon

motion of the Defendant, the Court dismissed the instant

case for Plaintiff’s failure to comply with an order of the

Court in a timely fashion. See Motion to Dismiss, filed

December 3, 1991 (Pleading No. 40); Order of Dismissal,

filed December 4, 1991 (Pleading No. 41) [“Dismissal No.

1”]. A subsequent motion for reconsideration filed by the

Plaintiff on December 11, 1991, revealed that, “although

Plaintiff had indeed timely qualified as a personal repre-

sentative of the decedent’s estate, counsel for the Plaintiff

failed to notify the Court of such qualification until two

weeks after the Court-imposed deadline for qualification

and one week after the Court’s dismissal of the case for

App. 41

failure to timely qualify,” in direct violation of the Court’s

October 25, 1991, Order. Dismissal No. 2 at 3 n.3. No

explanation was offered for Plaintiff's failure to comply

in a timely fashion. However, the Court rescinded its first

Order of Dismissal on December 19, 1991, with warnings

of dismissal and other sanctions for further transgres-

sions by counsel for the Plaintiff, and permitted the case

to go forward upon filing of an amended complaint by

the Plaintiff.

Since filing of her Third Amended Complaint on

December 30, 1991, Plaintiff neither filed pleadings nor

communicated with the Court until May 22, 1992, the

date of the motion for reconsideration presently at issue.

Plaintiff similarly failed to respond to Defendant's pro-

posal for a consensual discovery schedule,> Defendant's

Motion for Scheduling Order, dated February 19, 1992,

the Court’s Order establishing said discovery schedule,

dated March 3, 1992, or Defendant’s Motion to Dismiss

> “Pitman has attempted to work with plaintiff toward the

end of preparing a Joint Motion for Scheduling Order. In corre-

spondence dated February 12, 1992, ... undersigned counsel

explained Pitman’s proposed Scheduling Order and sought

plaintiff’s counsel’s input. The correspondence was followed by

two phone calls in an attempt to discuss this matter with plain-

tiff’s counsel. No reply has been received from plaintiff’s coun-

sel.” Memorandum in Support of Pitman Manufacturing

Company, Inc.’s Motion for Scheduling Order, filed February 19,

1992 (Pleading No. 50) [“Defendant’s Scheduling Order Mem-

orandum’” J.

It should also be noted that the undersigned’s law clerk

placed two telephone calls to counsel for the Plaintiff seeking a

response to Defendant’s Motion for Scheduling Order, to no

avail.

App. 42

and/or Alternatively to Strike Plaintiff’s Use of Experts

at the Trial of This Matter, filed April 21, 1992. As noted

in this Court’s second Order of Dismissal,

the Court waited 13 days for Plaintiff’s response

to Defendant’s motion for a discovery schedul-

ing order. When no response was forthcoming,

the Court entered the requested scheduling

order. See Order, filed March 3, 1992 (Pleading

No. 51). Plaintiff’s failure to comply with the

first deadline set forth in that Order prompted

the motion to dismiss considered herein. Fifteen

days have passed since the filing of Defendant’s

motion to dismiss, and Plaintiff has yet to

respond to the pending motion.

Dismissal No. 2 at 3-4 (footnotes omitted). “[B]ased on

the failure by counsel for the Plaintiff either to comply

with the scheduling order or to make or cooperate in

discovery, ... [and] ‘[flor failure of the plaintiff to pros-

ecute [and] to comply with these rules [and] any order of

court,’ ” the Court dismissed the instant case with preju-

dice on May 7, 1992, pursuant to Fed. R. Civ. P. 16(f),

37(b), and 41(b). Id. at 4-5 (quoting Fed. R. Civ. P. 41(b)).

To date, Plaintiff has offered no explanation for her

failure to respond to the Defendant’s February 19, 1992,

and April 21, 1992, motions or the Court’s March 3, 1992,

Order, or her failure to comply with April 15, 1992, dis-

covery deadline. At a minimum, Plaintiff had from

Plaintiff’s Motion for Reconsideration, and cited by the Court's

second Order of Dismissal, reads as follows:

App. 43

February 19, 1992, the filing date for Defendant’s Motion

for Scheduling Order, to May 7, 1992, the filing date for

the second Order of Dismissal, to notify the Court of any

objections to or difficulties with the discovery schedule or

to propose an alternative discovery schedule. Instead, the

Motion for Reconsideration at issue here is the first objec-

tion by Plaintiff to any provision of the discovery sched-

ule or the second dismissal of this case.

From the filing of the initial complaint in this case to

the present, there have been four different complaints

presented by Plaintiff,7 two answers by Defendant,’ one

motion by Defendant to compel discovery,’ at least two

Deadline for Plaintiff to disclose all fact and expert

witnesses and to provide Defendant with expert

reports — April 15, 1992. ...

Order, filed March 3, 1992 (Pleading No. 51).

7 Petition for Damages, filed November 29, 1989 attached to

Louisiana Record; Plaintiff’s First Supplemental and Amending

Complaint, filed December 6, 1990 (Pleading No. 16); Third

Amended Complaint, filed December 30, 1991 (Pleading No.

46). Because Plaintiff failed to obtain either leave of this Court

or written consent of the Defendant, see Fed. R. Civ. P. 15(a),

Plaintiff's second amended complaint was not filed as part of

the record. See Second Amended Complaint, received December

11, 1991.

8 Answer and Defenses of Defendant Pitman Manufactur-

ing Company, filed January 11, 1990 attached to Louisiana

Record; Answer and Defense of Defendant Pitman Manufactur-

ing Company to Plaintiff’s Third Amended Complaint, filed

January 2, 1992 (Pleading No. 47).

9° Defendant Pitman Manufacturing Company’s Motion to

Compel Discovery from Plaintiff, filed March 12, 1990 attached to

Louisiana Record.

App. 44

flagrant violations of the Pretrial Order by the Plaintiff,1°

two violations of other Orders entered by the under-

signed,!! thirteen deposition notices filed by Defendant,!?

10 “Responses to motions, if any, must be filed within four-

teen (14) days of the date on which the certificate of service is

signed. ... ” Pretrial Order for Reassigned Cases at 6, filed

November 26, 1990 (Pleading No. 12) (emphasis in original).

Plaintiff’s first response of any kind to Defendant’s Motion for

Scheduling Order, the Motion for Reconsideration discussed

herein, was filed ninety-three days after Defendant’s motion.

Piaintiff’s response to Defendant’s second Motion to Dismiss

was filed thirty-one days after Defendant’s motion, and fifteen

days after this Court’s second Order of Dismissal.

11 As discussed supra, in violation of the Court’s October

25, 1991, Opinion and Order, Plaintiff neglected to file a supple-

mental pleading establishing proper qualification as a personal

representative of Decedent’s estate until December 11, 1991,

sixteen days after the expiration of the deadline established by

the Court’s October 25, 1991, Opinion and Order and seven days

after the Court’s first Order of Dismissal. Plaintiff also violated

this Court’s March 3, 1992, Order by failing “to disclose all fact

and expert witnesses and to provide Defendant with expert

reports” by April 15, 1992. Order, filed March 3, 1992 (Pleading

No. 51).

12 See Notice of Deposition of Brenda Janeau, filed August

17, 1990 (Pleading No. 4); Notice of Deposition of Brenda Jan-

eau, filed September 4, 1990 (Pleading No. 5); Notice of Deposi-

tion, filed October 11, 1990 (Pleading No. 6); Notice of

Deposition, filed November 2, 1990 (Pleading No. 9); Notice of

Deposition, filed June 14, 1991 (Pleading No. 34a); Notice of

Deposition, filed February 4, 1992 (Pleading No. 48); Notice of

Rule 30(b)(6) Deposition of B & D Contractors, Inc., filed April

28, 1992 (Pleading No. 54); Notice of Deposition, filed April 28,

1992 (Pleading No. 55); Notice of Rule 30(b)(6) Deposition of

Duke Power, filed April 28, 1992 (Pleading No. 56); Notice of

Deposition, filed April 28, 1992 (Pleading Nos. 57, 58, 59, 60). In

comparison, Plaintiff has filed only two notices of deposition,

both dated 1990. See note 2 supra.

App. 45

six months of unexplained delay by Plaintiff in moving to

add Duke and B & D as co-Defendants, nearly four

months of unexplained delay by Plaintiff in serving Duke

and B & D, eight months of delay resulting from Plain-

tiff’s lack of capacity to sue,'> and two dismissals. No

depositions were taken from at least December, 1990, to

February, 1992. See Defendant’s Scheduling Order Mem-

orandum at 1. To date, Plaintiff has apparently failed to

name any proposed expert witness or to identify any

alleged defect in Defendant's crane. See, e.g., id.; Defen-

dant’s Motion to Dismiss and/or Alternatively to Strike

Plaintiff’s Use of Experts at the Trial of This Matter, filed

April 21, 1992 (Pleading No. 52); Memorandum in Sup-

port of Defendant’s Motion to Dismiss and/or Alter-

natively to Strike Plaintiff's Use of Experts at the Trial of

This Matter, filed April 21, 1992 (Pleading No. 53)

{“Defendant’s Dismissal Memorandum” ]. In short, “[t]he

captioned civil matter . . . is no closer to trial readiness

now than it was on the day the initial complaint was

filed.” Dismissal No. 2 at 1.

13 The issue of proper qualification of Plaintiff as personal

representative of Decedent’s estate under North Carolina law

resulted in an additional eight-month delay in the resolution of

this case, from April, 1991, when the issue of proper qualifica-

tion of Plaintiff as personal representative of Decedent’s estate

under North Carolina law was first called to the parties’ atten-

tion, see B & D’s Answer at 3, to December, 1991, when Plaintiff

was finally so qualified. See Motion for Reconsideration and

Reinstatement, filed December 11, 1991 (Pleading No. 42).

Although contesting the issue of proper qualification, counsel

for the Plaintiff could have demonstrated due diligence by

immediately qualifying Plaintiff as a personal representative

under North Carolina law, thereby rendering moot any question

of qualification.

App. 46

II. DISCUSSION

A. Legal Standard for Rule 59(e) Motion

The decision whether to reopen a case under Rule

59(e) is committed to the sound discretion of the trial

court. See, e.g., Boryan v. United States, 884 F.2d 767, 771

(4th Cir. 1989); Appeal of Sun Pipe Line Co., 831 F.2d 22, 25

(1st Cir. 1987) (“[O]nce the ball has ended, the district

court has substantial discretion in deciding whether to

strike up the band again... . ”), cert. denied sub nom. Sun

Pipe Line Co. v. Environmental Protection Agency, 486 U.S.

1055 (1988); American Home Assurance Co. v. Glenn Estess &

Assocs., Inc., 763 F.2d 1237, 1238-39 (11th Cir. 1985). A

Rule 59(e) motion may be granted on one of three

grounds: “(1) an intervening change in the controlling

law has occurred, (2) evidence not previously available

has become available, or (3) it is necessary to correct a

clear error of law or prevent manifest injustice.”

Weyerhaeuser [sic] Corp. v. Koppers Co., 771 F. Supp. 1406,

1419 (D. Md. 1991) (citing Natural Resources Defense Coun-

cil v. U.S. E.P.A., 705 F. Supp. 698, 702 (D.D.C.), vacated on

other grounds, 707 F. Supp. 3 (D.D.C. 1989)).

B. Plaintiff’s Arguments in Support of Rule 59(e)

Motion

After reviewing Plaintiff’s supporting memorandum,

the Court discerns three arguments asserted by Plaintiff

in support of her motion for reconsideration: (1) inherent

flaws in the Court’s Order establishing a discovery sched-

ule; (2) Plaintiff was engaged in prosecuting the case at

the time of the Court’s dismissal of the instant case; and

App. 47

(3) the undue harshness of the sanction of dismissal with

prejudice for Plaintiff’s actions. Hence, the only Rule

59(e) ground with any bearing on the instant case is the

necessity “to correct a clear error of law or prevent mani-

fest injustice.” Weyerhaeuser [sic] Corp., 771 F. Supp. at

1419.

1. Flawed Discovery Schedule Order

Plaintiff first argues that the discovery schedule

established by the Court was flawed in that, because the

schedule “provided for the taking of fact witness deposi-

tions subsequent to the cutoff date for expert witness

reports,” Plaintiff's expert witnesses would have been

unable to review fact witness depositions in the formula-

tion of their opinions. Memorandum in Support of Plain-

tiff’s Motion for Reconsideration and Request for Oral

Argument at 1 [“Plaintiff’s Memorandum”] attached to

Plaintiff’s Motion for Reconsideration and Request for

Oral Argument, filed May 22, 1992 (Pleading No. 64).

Plaintiff attributes this purported flaw to the fact that the

proposed discovery schedule was “unilaterally submit-

ted” to the Court by the Defendant. Id.

Plaintiff’s untimely objection to the discovery sched-

ule does have some merit, in that final expert opinions

would require review of fact witnesses’ accounts of the

accident. However, the identity of fact and expert wit-

nesses, preliminary non-conclusive expert opinions or

reports, and investigations and discovery conducted

between Decedent’s death in 1988 and the present time

could be disclosed, in compliance with the discovery

schedule, regardless of the dates of depositions for fact

App. 48

witnesses. Plaintiff violated the April 15 discovery dead-

line by neglecting to identify any fact or expert witness

and by failing to provide any expert reports containing

either initial or final expert opinions. Plaintiff offers no

explanation or justification for her violation of the April

15 deadline, or for her failure to comply partially with the

deadline by providing available information and offering

supplemental information as available. Plaintiff’s failure

to timely respond, object, or otherwise notify the Court as

to any perceived flaw in the discovery schedule or any

inability or difficulty in complying therewith expressly

refutes Plaintiff’s characterization of the discovery sched-

ule as “unilaterally submitted.”

Furthermore, “[glenerally, parties cannot use a rule

59(e) motion to raise arguments which could, and should,

have been made before the judgment issued.” Building &

Constr. Trades Dep't v. Rockwell Int'l Corp., 758 F. Supp.

1428, 1429. (D. Colo. 1991). See also White v. New Hampshire

Dep't of Employment Security, 455 U.S. 445, 451 (1982);

Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir. 1990). Plain-

tiff could have called the Court’s attention to this pur-

ported flaw in the discovery schedule in this case at any

time prior to the second Order of Dismissal. Instead,

Plaintiff disregarded Defendant’s Motion for Scheduling

Order, violated the discovery schedule entered by Order

of this Court, ignored Defendant’s subsequent motion to

dismiss, and waited two weeks before responding to the

second Order of Dismissal. In light of these facts, the

Court cannot find that a clear error of law has occurred or

that manifest injustice is present.

App. 49

2. Plaintiff’s Prosecution of the Instant Case

Plaintiff's second argument is that dismissal under

Fed. R. Civ. P. 41(b) is inappropriate in the instant case, in

that Plaintiff was engaged in prosecuting the case at the

time of the Court’s second Order of Dismissal. “From

Wednesday, May 6 through Friday, May 8, 1992, counsel

for the parties deposed seven (7) fact witnesses in the

captioned action.” Plaintiff's Memorandum at 1.

The May, 1992, depositions referenced by Plaintiff

were scheduled by counsel for the Defendant. See note 13

supra. Prior to May, 1992, the only depositions even

scheduled by Plaintiff date back to 1990. See note 2 supra.

Notwithstanding those depositions, Plaintiff’s only

actions in the instant case since June 13, 1991, have cen-

tered on keeping this cause of action alive rather than

furthering this case toward trial or settlement. See Plain-

tiff’s Memorandum in Opposition to Motion for Sum-

mary Judgment, filed June 13, 1991 (Pleading No. 34);

Plaintiff's Motion for Reconsideration and Reinstatement,

filed December 11, 1991 (Pleading No. 42); Plaintiff's

Motion for Oral Argument on Motion for Reconsideration

and Reinstatement, filed December 20, 1991 (Pleading

No. 45); Third Amended Complaint, filed December 30,

1991 (Pleading No. 46).

It is true that Rule 41(b) dismissal is “a harsh sanc-

tion which should not be invoked lightly in view of ‘the

sound public policy of deciding cases on their merits.’ ”

Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978) (quoting

Reizakis v. Loy, 490 F.2d 1132, 1135 (4th Cir. 1974)). How-

ever, it is also true that a court must consider “the need to

App. 50

manage its docket” and “the public interest in expe-

ditious resolution of litigation.” 2 Motions in Federal Court

499 (2d ed. 1991). In dismissing this case under Rule

41(b), the Court considered the following factors: “(1) the

degree of personal responsibility on the part of the plain-

tiff; (2) the amount of prejudice to the defendant caused

by the delay; (3) the presence or absence of a ‘drawn out

history’ of ‘deliberately proceeding in a dilatory fashion’;

and (4) the effectiveness of sanctions less drastic than

dismissal.” Davis, 588 F.2d at 70 (quoting McCargo v.

Hedrick, 545 F.2d 393, 396 (4th Cir. 1976)). See also Herbert

v. Saffell, 877 F.2d 267, 270 (4th Cir. 1989).

The Court is unable to determine from the record

whether Plaintiff was personally responsible for the fail-

ure to prosecute the instant case. However, as set forth in

Section I supra, there is ample evidence of dilatory con-

duct by counsel for the Plaintiff throughout the existence

of the instant case. In light of this procedural history, the

only reasonable conclusion is that such dilatory conduct

was the result of intentional abuse of the judicial process

and vexatious, deliberate activities directed toward the

Defendant. Defendant has suffered significant prejudice

as a result, as demonstrated by the plethora of repetitive

pleadings filed by Defendant in response to the short-

comings of counsel for the Plaintiff. Plaintiff's lackadaisi-

cal prosecution of the instant case has required Defendant

to submit two answers, numerous refilings of notices of

depositions, motions to compel discovery, and briefs

ranging in topics from removal to estate law. In effect,

Plaintiff asks the Court to resurrect a case which the

Defendant, in reliance on the first termination of the

action, has already closed out once. The amount of undue

App. 51

prejudice, in the form of unnecessary expenditures of

time, money, resources, and effort in preparation for a

trial that has been repeatedly delayed by opposing coun-

sel’s lack of diligent preparation, inflicted upon Defen-

dant by counsel for the Plaintiff’s procrastinatory history

is grossly inequitable and cannot be permitted to con-

tinue.

3. Availability of Less Drastic Sanctions

Plaintiff’s third argument in support of her motion

for reconsideration, the undue harshness of dismissal

with prejudice, is sufficiently similar to the fourth factor

enunciated in the Davis decision, the availability and

effectiveness of sanctions less drastic than dismissal, to

warrant discussing them together. Because the Court also

dismissed the instant case under Fed. R. Civ. P. 37(b),

which requires a similar consideration of sanctions less

drastic than dismissal, the Court considered and hereinaf-

ter reiterates the ineffectiveness and unavailability of less

drastic sanctions according to the following criteria: “(1)

the needs of the discovery party; (2) the nature of the

non-compliance; (3) ‘how the absence of such evidence

[not produced] would impair [the other party’s] ability to

establish their case’; (4) whether the non-compliance

party’s conduct would deprive the other party of a fair

trial.” Aerodyne Systems Eng’g, Ltd. v. Heritage Int'l Bank,

115 ER.D. 281, 290 (D. Md. 1987) (quoting Wilson v.

Volkswagen of Am., Inc., 561 F.2d 494, 505 (4th Cir. 1977);

Snead v. Automation Indus., Inc., 102 E.R.D. 823, 829 (D.

Md. 1984)) (Fed. R. Civ. P. 37(b)). See also Herbert, 877 F.2d

App. 52

at 270 (Fed. R. Civ. P. 41(b)); McCargo, 545° F.2d at 396

(same).

Plaintiff’s cause of action centers around allegations

of negligent design, fabrication, and manufacture of a

Pitman HL-757 truck-mounted crane, failure to properly

warn of the inherent dangers and hazards of said crane,

and failure to issue adequate safety instructions. See, e.g.,

Third Amended Complaint, filed December 30, 1991

(Pleading No. 46). Because of the complex technological

evidence that Plaintiff must produce to satisfy her burden

of proof, including such diverse areas of specialized

knowledge as mechanical engineering, metallurgy, elec-

trical conductivity, and industry safety standards, expert

witnesses and “scientific, technical, or other specialized

knowledge” will be necessary to “assist the trier of fact to

understand the evidence or to determine a fact in issue.”

Fed. R. Evid. 702. The absence of expert testimony in the

instant case would effectively preclude any recovery by

the Plaintiff, since the factual issues in question could not

be resolved merely by the “common knowledge” or

“common experience” of the jury. Scott v. Sears, Roebuck &

Co., 789 F.2d 1052, 1055 (4th Cir. 1986). See also Patterson v.

McLean Credit Union, 805 F.2d 1143, 1147 (4th Cir. 1986),

aff'd in part, vacated in part on other grounds, 491 U.S. 164

(1989); United States v. Downing, 753 F.2d 1224, 1229 (3d

Cir. 1985); United States v. Gold, 743 F.2d 800, 817 (11th Cir.

1984), cert. denied, 469 U.S. 1217 (1985).

The Federal Rules of Civil Procedure specifically pro-

vide for the kind of expert witness discovery sought by

the Defendant and disregarded by the Plaintiff. Fed. R.

Civ. P. 26(b)(1), (4). To date, however, Plaintiff's most

detailed response to Defendant's inquiries about expert

App. 53

witnesses is an evasive “I do not know who will be called

as an expert witness at the present time.” Plaintiff's

Answers to Interrogatories at 2, dated February 22, 1990

attached to Louisiana Record. Plaintiff has failed to sup-

plement this response by providing even the identity of

proposed expert witnesses, or to clarify its allegations of

negligence. See Defendant’s Dismissal Memorandum at

2-5: Fed. R. Civ. P. 26(e)(1)(B) (imposing duty upon par-

ties to supplement information as to identity of expert

witnesses). “ ‘[A]dvance knowledge through pretrial dis-

covery of an expert witness’s basis for his opinion is

essential for effective cross-examination.’ ” Smith v. Ford

Motor Co., 626 F.2d 784, 793 (10th Cir. 1980) (quoting

Graham, Discovery of Experts Under Rule 26(b)(4) of the

Federal Rules of Civil Procedure: Part One, An Analytical

Study, 1976 U.IIl. L.F. 895, 897), cert. denied, 450 U.S. 918

(1981). See also Notes of Advisory Committee on Rules as

to 1970 Amendment to Fed. R. Civ. P. 26(b)(4).

Defendant has both a need and a right to know

Plaintiff’s proposed expert witnesses and the subject mat-

ter and basis for their testimony. Fed. R. Civ. P.

26(b)(4)(A), (B). Plaintiff has failed to comply with the

requested discovery by deliberately ignoring Defendant's

repeated requests for expert witness discovery and the

Court’s Order establishing an April 15, 1992, deadline for

said discovery. The absence of such evidence has pre-

vented Defendant from adequately preparing a defense to

the allegations of negligence to be presented at trial, and

frustrated any attempt to formulate effective cross-exam-

ination of Plaintiff’s proposed experts. After two and

one-half years, Defendant still has no way of knowing

App. 54

what could be done to defend against Plaintiff’s allega-

tions of negligence. Plaintiff's conduct would clearly

deprive Defendant of a fair trial.

Less drastic sanctions under Rules 37(b) and 41(b) are

grossly inadequate and inappropriate in light of the lack-

adaisical prosecution of the instant case. As stated above,

exclusion of expert testimony on the issues of Defen-

dant’s negligence and failure to warn would prevent

Plaintiff from satisfying her burden of proof at trial,

thereby effectively dismissing the case. Any perpetuation

of the case would merely compound the prejudice

already suffered by Defendant, in that Defendant would

still be required to prepare a defense against some illu-

sory allegation of negligence that two and one-half years

of procedural antics and discovery shenanigans have

failed to resolve. Therefore, monetary sanctions against

counsel for the Plaintiff or an Order requiring withdrawal

of counsel for the Plaintiff are inadequate. Other Rule 37

sanctions, including striking pleadings, taking the mat-

ters in issue as established, staying proceedings, and

contempt proceedings, are similarly unavailing. In fact,

dismissal has been tried once already, to no avail. “The

resurrection of this case after one dismissal should have

purged this matter of any further procrastination by any

party. Obviously, the mere threat of dismissal has not had

this effect.” Dismissal No. 2 at 4. One would be hard

pressed to argue that a less drastic sanction would be

appropriate where the ultimate sanction of dismissal has

already failed. “The history of dilatory practices dis-

played by counsel for the Plaintiff leaves this Court with

no reasonable alternative but dismissal of this cause of

action.” Id. at 4.

App. 55

ll. CONCLUSION

In light of the inordinate and continuing prejudice

inflicted upon Defendant by Plaintiff’s delays, the pro-

longed history of contumacious, dilatory practices by the

Plaintiff, and the unavailability and ineffectiveness of

reasonable sanctions less drastic than dismissal, the Court

reaffirms its earlier conclusion that dismissal for failure

to prosecute, pursuant to Fed. R. Civ. P. 41(b), is war-

ranted in the instant case. The failure of counsel for the

Plaintiff to comply with the scheduling order and to

make or cooperate in discovery, and the absence of effec-

tive less drastic sanctions, supports this Court's accep-

tance of its earlier ruling that this case should also be

dismissed under Fed. R. Civ. P. 37(b). Finally, the futility

of less drastic sanctions, combined with Plaintiff’s viola-

tion of the Pretrial Order and two other Orders entered

by the undersigned, see notes 11 and 12 supra, justifies

the Court’s dismissal of the instant case under Fed. R.

Civ. P. 16(f).14

In light of the foregoing discussion, the Court finds

no basis for Plaintiff's Motion for Reconsideration under

Fed. R. Civ. P. 59(e). There is neither a clear error of law

to be corrected nor a manifest injustice to be prevented.

Instead,

[p]roviding plaintiff with a second or third

chance following a procedural default is a

14 See, e.g., National Hockey League v. Metropolitan Hockey

Club, Inc., 427 U.S. 639 (1976); Ford v. Fogarty Van Lines, Inc., 780

F.2d 1582 (11th Cir. 1986); Poulis v. State Farm Fire & Casualty Co.,

747 F.2d 863 (3d Cir. 1984).

App. 56

“lenient sanction,” which, when met with fur-

ther default, may justify imposition of the ulti-

mate sanction of dismissal with prejudice. .. .

[W]here “plaintiff was fully and repeatedly

apprised of the possible imposition of the...

sanction [of dismissal with prejudice],” it was

not necessary for the district court to consider

“other possible sanctions. . 7

Callip v. Harris County Child Welfare Dep't, 757 F.2d 1513,

1521 (5th Cir. 1985) (quoting Ramsay v. Bailey, 531 F.2d

706, 709 n.2 (5th Cir. 1976)). Plaintiff’s motion for recon-

sideration must therefore be denied. Plaintiff’s request

for oral argument will also be denied, in that the record is

sufficiently complete and the Court is adequately familiar

with the facts of the case to allow proper resolution of the

motion considered herein.

IV. ORDER

IT IS, THEREFORE, ORDERED that Plaintiff's

Motion for Reconsideration, considered herein as a

motion to alter or amend judgment under Fed. R. Civ. P.

59(e), is hereby DENIED.

IT IS FURTHER ORDERED that Plaintiff’s Request -

for Oral Argument is hereby DENIED.

THIS the 30th day of June, 1992.

/s/ Richard L. Voorhees

RICHARD L. VOORHEES,

CHIEF JUDGE

UNITED STATES DISTRICT

COURT

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.