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Edgett v. Union Pacific Railroad Co.

United States District Court, D. Nebraska

July 9, 2019

KAREN EDGETT, as wife of Arthur Edgett, deceased; Plaintiff,
v.
UNION PACIFIC RAILROAD CO., Defendant.

          MEMORANDUM AND ORDER

          Cheryl R. Zwart United States Magistrate Judge.

         This FELA action was filed on August 24, 2018 by Karen Edgett, the wife of decedent Arthur Edgett. Arthur Edgett died on November 12, 2015. The complaint alleges exposure to toxins while working for the railroad caused or contributed to Arthur Edgett's death.

         The caption of the complaint identifies Karen Edgett as the Personal Representative of the Estate of Arthur Edgett. (Filing No. 1). The complaint alleges Karen Edgett is seeking recovery as “the representative” of her husband's estate. (Filing No. 1, ¶ 2). The caption and the allegation of representation was then, and remains, untrue. The information of record establishes that Karen Edgett did not file an application to be appointed as an administrator of decedent's estate until May 9, 2019, over eight months after this lawsuit was filed. (Filing No. 17, at CM/ECF pp. 5, 19-22).

         On 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).[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.” Byrd v. Union Pacific Railroad Co., 8:18cv36, (Filing No. 34).

         Plaintiff's counsel did not comply with this order. Instead, he produced a notice stating Karen Edgett filed an Application for lndependent Administration on May 9, 2019. As of May 22, 2019, Plaintiff's counsel had not produced a copy of any order appointing an administrator for the Arthur Edgett estate or any letters of administration.

         UPRR moved for sanctions, requesting dismissal of this case. (Filing No. 16). 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.

         Citing 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. 19, 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 Karen Edgett as representative of her husband's estate. (Filing No. 19, at CM/ECF p. 4).

         Citing 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).

         Unlike 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. The application for letters of personal representation was not filed until May 9, 2019. (Filing No. 17, at CM/ECF p. 5). 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 time.

         In 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. 14). 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. Byrd v. Union Pacific Railroad Co., 8:18cv36, Filing No. 34-1. 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.

         At the 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. III.); Puffer v. Union Pacific Railroad Co., No. 1:17-cv-01222 (C.D.III.). Moreover, the complaint herein acknowledges as such by alleging, albeit falsely, that Karen Edgett was bringing the lawsuit as the personal representative of Arthur Edgett's Estate. See Fed.R.Civ.P. 11. Finally, 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 trial.[2]

         I have 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 Karen Edgett's 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, falsely stating in the complaint that the filing person is the decedent plaintiff's personal representative, 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 ...


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