# Opposition Brief — Janeau v. Pitman Manufacturing Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0812%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1073 ## 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. e 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 S 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. ns ea. ) ie | lle | eT a-*) =< —_ s [—< a er mee =_ ae a ——————— *Counsel of Record 5 | ne 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? li 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 _—————— — iv 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 V TABLE OF CONTENTS - Continued Page C. ORDER filed December 19, . ) ee App. 31 D. ORDER filed June 30, 1992........-.-+:- App. 36 vi 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 re yer Py cae er 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 4 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; (C) An order striking out pleadings or 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). © ORDER OF DISMISSAL filed December 4, 1991 [Appen- dix B to this Brief at App. 28-29]. 10 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]. 11 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 12 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 13 ‘ (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. 14 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. he 15 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. 16 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. 17 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]. ¢ 18 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). 19 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. 20 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 21 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 22 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. 23 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. 24 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. 25 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. 26 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 a. 27 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. 28 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 29 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. i 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 © The facts as alleged in this case demonstrate a tripartite 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. l. WwW ++ JI 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). a 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 © The provision of the discovery schedule referenced by 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0812%3A2. Public record. Not legal advice.