United States District Court, D. Nebraska
SUZANNE S. REYNOLDS, as wife of Douglas B. Reynolds, deceased; Plaintiff,
UNION PACIFIC RAILROAD CO., Defendant.
FINDINGS, RECOMMENDATION AND ORDER
R. Zwart United States Magistrate Judge.
FELA action was filed on June 27, 2018, by Suzanne S.
Reynolds, described in the complaint as an adult who resided
with decedent Douglas B. Reynolds. The complaint alleges
exposure to toxins while working for the railroad caused or
contributed to Douglas B. Reynolds' death. Douglas B.
Reynolds died on December 29, 2016. (Filing No. 1 at CM/ECF
p. 4, Filing No. 20, at CM/ECF p. 14).
caption of the complaint identifies Suzanne S. Reynolds as
the Personal Representative of the Estate of Douglas B.
Reynolds. (Filing No. 1). This representation was then, and
remains, untrue. The information of record establishes that
Suzanne S. Reynolds did not file an application to be
appointed as a personal representative until May 8, 2019,
over eight months after this lawsuit was filed. (Filing No.
20, at CM/ECF pp. 4, 14-16).
March 27, 2019, the parties notified the court that a
personal representative had not been appointed to pursue the
above-captioned lawsuit, along with several other 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 respond to UPRR's capacity
objection by obtaining 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.” Byrd v. Union Pacific Railroad
Co., 8:18cv36, (Filing No. 34).
counsel did not comply with this order. Instead, he produced
a notice stating Suzanne S. Reynolds filed an Application for
appointment of a personal representative on May 8, 2019. As
of May 22, 2019, Plaintiff's counsel had not produced a
copy of any order appointing a personal representative for
the Douglas B. Reynolds estate or any letters of
moved for sanctions, requesting dismissal of this case.
(Filing No. 19). UPRR argues that absent appointment of a
personal representative to litigate the Plaintiff
decedent's claim, no lawsuit exists. As such, Defendant
argues it should not be required to invest time and resources
into this litigation.
MO, KS, & TX. Ry. Co. v. Wulf, 226 U.S. 570
(1913), Plaintiff's counsel argues a decedent can pursue
a FELA action prior to formal appointment of a personal
representative; that “the district court may allow the
amendment of the Complaint to allow the claim to proceed with
the Plaintiff as the representative of the estate and that
amendment relates back to the original filing.” (Filing
No. 22, at CM/ECF p. 3). Plaintiff's counsel states that
“if leave is granted, and a reasonable time allowed,
” he will further pursue obtaining the appointment of
Suzanne S. Reynolds as representative of Douglas B.
Reynolds' estate. (Filing No. 22, at CM/ECF p. 4).
American R. Co. of Porto Rico v. Birch, 224 U.S. 547
(1912), Wulf also specifically held that under the
FELA, a “plaintiff could not, although sole
beneficiary, maintain the action except as personal
representative.” Wulf, 226 U.S. at 576. See
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, before Plaintiff's counsel filed his brief on the
pending motion, 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 held 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, UPRR is requesting dismissal as a
sanction for failure to comply with a court order. On April
25, 2019, this court ordered Plaintiff's counsel to serve
a letter of personal representation in this case by May 16,
2019. (Filing 17). The application for letters of personal
representation was not filed until May 8, 2019. (Filing No.
20, at CM/ECF p. 14). Plaintiff's counsel has not
explained the delay in filing an application for a personal
representative appointment, and he has not complied with the
court's April 25, 2019 order nor provided any explanation
for his noncompliance. Rather, he argues that he will comply
if afforded a reasonable amount of additional time.
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 17). UPRR objected to
Plaintiff's lack of standing over three months ago, with
the parties first notifying the court that a personal
representative had never been appointed in this case on March
27, 2019. (Filing 17-1). Under the facts presented, the court
finds UPRR raised its objection to capacity over three months
ago, and Plaintiff's counsel has already been afforded a
reasonable time for substitution.
outset of this lawsuit, Plaintiff's counsel was fully
aware that a personal representative was necessary. See e.g.,
Lafferty v. Union Pacific Railroad Co., No. 1:17
-cv-322-BLW (D. Idaho); Tindall v. Union Pacific Railroad
Co., No. 1:17-cv-01221-JES-JEH (C.D. Ill.); Puffer
v. Union Pacific Railroad Co., No. 1:17-cv-01222
(C.D.Ill.). And although Plaintiff's counsel argues that
the lack of a personal representative will not impede the
acquisition of medical and other records to litigate this
action, the court's records in other cases filed by
Plaintiff's counsel contradict that statement. See
Bettisworth v. BNSF, 8:17cv491, (Filing No. 23-1)
(medical provider refused to honor requests for copies of
records when accompanied by a medical release signed by a
surviving spouse who was not appointed as a personal
representative). See also, Jones v. Union Pacific
Railroad Co., 8:18cv178 (Filing No. 21-1, at CM/ECF p.
3). 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
considered sanctions other than dismissal for Plaintiff's
failure to comply with this court's order. UPRR's
attorney fees in conducting discovery to ascertain Suzanne S.
Reynolds' capacity to sue, and its fees in filing the
motion herein, will be awarded. Additional sanctions have
been considered because under the facts presented-filing a
lawsuit without the capacity to do so, and then, without any
explanation, failing to timely correct the plaintiff's
filing status when ordered to do so-an award of attorney fees
is insufficient to address the gravity of the conduct. But
whether identified as a dismissal or not, other ...