United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge.
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.
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).
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 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).
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.
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.
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).
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. 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.
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.
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
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 ...