United States District Court, D. Nebraska
ODESSA JONES, as wife of JAMES M. JONES, deceased; Plaintiff,
UNION PACIFIC RAILROAD CO., Defendant.
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge.
FELA action was filed on April 24, 2018 by Odessa Jones, the
wife of decedent James M. Jones. James M. Jones died on April
25, 2015. The complaint alleges exposure to toxins while
working for the railroad caused or contributed to James
Jones' death. (Filing No. 1)
caption of the complaint identifies Odessa Jones as the
Personal Representative of the Estate of James M. Jones. The
complaint alleges Odessa Jones is seeking recovery “as
the representative” of the Estate of James M. Jones.
(Filing No. 1, ¶ 2). The caption and allegation of
representation were then, and remain, untrue.
March 27, 2019, the parties notified the court that a
personal representative had not been appointed to pursue
several toxic fume cases filed against UPRR by
Plaintiff's counsel. Byrd v. Union Pacific Railroad
Co., 8:18cv36, (Filing No. 34-1). After affording
Plaintiff's counsel four weeks to obtain a personal
representative for all previously filed cases, the
undersigned judge entered an order on April 25, 2019 stating
that as to all such lawsuits, “if letters of personal
representation have not already been produced, the letters
shall be produced to Defendant by May 16, 2019.”
(Filing No. 17). The court granted Plaintiff's request
for a continuance of this deadline, setting it for June 14,
2019. (Filing No. 19).
counsel did not comply with this order. Instead, on June 10,
2019, he moved to stay the deadline for filing letters of
administration. (Filing No. 20) Plaintiff's motion states
Odessa Jones “can open an estate, but she will not have
been officially appointed the Personal Representative due to
the Oregon probate process being both involved and
expensive.” (Filing No. 20). Plaintiff's counsel
explained that UPRR had moved for sanctions of dismissal in
four similar cases, and Odessa Jones did not want to incur
the expense of opening and estate if the court intended to
dismiss cases as a sanction for untimely showing capacity to
sue. UPRR opposes the motion to stay, arguing Plaintiff's
counsel has failed to show any good cause for ignoring the
court's order and for failing to file an application for
appointment of a personal representative before filing this
lawsuit. (See, Filing Nos. 21, 22).
MO, KS, & TX. Ry. Co. v. Wulf, 226 U.S. 570
(1913), the Court held that a plaintiff cannot maintain an
FELA action on behalf of a deceased railroad worker
“except as personal representative.”
Wulf, 226 U.S. at 576. See also, Birch, 224 U.S. at
558 (“The national act gives the right of action to
personal representatives only.” (emphasis supplied)).
Moreover, on April 19, 2019, nearly two months before
Plaintiff's counsel filed the motion to stay herein,
Judge Gerrard entered an order in another case handled by
Plaintiff's counsel, Bettisworth v. BNSF,
8:17cv491, (Filing No. 29). In Bettisworth, BNSF
moved to dismiss Plaintiff's complaint for lack of
standing, arguing the action could not be pursued by a
decedent railroad employee absent appointment of a personal
representative. Judge Gerrard agreed, holding that FELA
actions by deceased railroad employees must be litigated
through a personal representative. As Judge Gerrard
explained, under the language of the FELA, a railroad
employee, or “in case of the death of such employee, .
. . his or her personal representative, ” may seek
damages for injuries incurred during the course and scope of
railroad employment. 45 U.S.C.A. § 51. Judge Gerrard did
not, however, dismiss the case. Instead, he explained:
Rule 17(a)(3) precludes dismissal until after an objection
and a reasonable time for substitution has been allowed. The
plaintiff requested that he be given 90 days from the date of
this Court's order to obtain appointment as the Personal
Representative for the Estate of Cathy Jo Bettisworth and
thereafter seek leave to file an amended complaint.
Plaintiff's request is reasonable and will be granted.
Bettisworth v. BNSF, 8:17cv491, (Filing No. 29, at
CM/ECF p. 4).
Bettisworth, Plaintiff's counsel stated 90 says
was a reasonable amount of time to obtain the appointment of
a personal representative. He requested and was granted 90
days. In this case, the court's order requiring service
of a letter of personal representation was entered over two
months ago, on April 25, 2019. (Filing No. 17). Over three
months ago UPRR objected to lawsuits being filed by deceased
railroad workers without appointment of personal
representatives. (Filing No. 17-1).
outset of this lawsuit, Plaintiff's counsel was fully
aware that a personal representative was necessary. The
complaint itself acknowledges as such by alleging, albeit
falsely, that Odessa Jones was bringing the lawsuit as the
personal representative of James Jones. See Fed.R.Civ.P. 11.
And the lack of a personal representative is impeding the
acquisition of medical records needed in this action. (Filing
No. 22-1). The lack of a personal representative raises
unnecessary hurdles to the discovery process which, in turn,
interferes with this court's orders for progression to
on the record herein, Odessa Jones did not file any action
for appointment of a personal representative before May 22,
2019-the date UPRR filed motions seeking dismissal of four
other lawsuits as a sanction for failing to timely disclose
letters of personal representation. Once those motions were
filed, she did not pursue appointment as a personal
representative, instead choosing to wait until she knew the
outcome on the motions for sanctions.
summarize: Odessa Jones filed this lawsuit without the
capacity to do so; the complaint falsely represents that she
is the personal representative of James M. Jones, a deceased
person; the discovery process is being disrupted by her lack
of capacity to represent the decedent; when notified over
three months ago that UPRR objected to her lack of capacity
to sue, she did nothing to correct the defect; when the court
ordered her to correct it, she did not; and, now she has
chosen to do nothing to correct the issue of standing while
she waits to see if other lawsuits are dismissed for similar
conduct. These facts do not support good cause to stay
court-ordered deadlines. They support an award of sanctions.
court will award attorney fees to UPRR for its costs and
expenses in pursuing discovery to determine whether Odessa
Jones was appointed as personal representative of James M.
Jones' estate, and in responding to the pending motion to
stay. But an award of attorney fees is insufficient to
address the gravity of the conduct at issue, and under the
facts of this case, an order establishing certain adverse
facts as true or certain claims dismissed would effectively
result in a dismissal.
is a harsh outcome, particularly where, as in this case, the
statute of limitations will impose a bar to re-filing. The
court will therefore grant Plaintiff an additional 14 days to
file documentation showing Odessa Jones is the personal
representative for James M. Jones. If a notice or letter of