United States District Court, D. Nebraska
ELLA J. RHONE, as wife of Bruce N. Rhone, Sr., deceased; Plaintiff,
UNION PACIFIC RAILROAD CO., Defendant.
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge.
FELA action was filed on December 27, 2018 by Ella J. Rhone,
the wife of decedent Bruce N. Rhone, Sr., who died on
December 29, 2015. The complaint alleges exposure to toxins
while working for the railroad caused or contributed to Bruce
N. Rhone, Sr.'s death.
caption of the complaint identifies Ella J. Rhone as the
Personal Representative of the Estate of Bruce N. Rhone, Sr.
The complaint alleges Ella J. Rhone is seeking recovery
“as the representative” of her husband's
estate. (Filing No. 1, ¶ 2). The caption and the
allegation were then, and remain, untrue. The information of
record establishes that Ella J. Rhone did not file a petition
to be appointed as a personal representative until May 8,
2019, over four months after this lawsuit was filed. (Filing
No. 18, at CM/ECF pp. 5, 23-28).
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 Ella J. Rhone filed an Application for
Independent Administration on May 8, 2019. (Filing No. 18 at
CM/ECF p. 5 ¶ 7, pp. 23-28). As of May 22, 2019,
Plaintiff's counsel had not produced a copy of any order
appointing an administrator for the Bruce N. Rhone, Sr.
estate or any letters of administration.
moved for sanctions, requesting dismissal of this case.
(Filing No. 17). 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. 20, 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
Ella J. Rhone as representative of her husband's estate.
(Filing No. 20, 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
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, 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. Contrary to Plaintiff's
counsel's arguments therein, 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
No. 15). The application for letters of administration was
not filed until May 8, 2019. (Filing No. 18, 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
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. 15). 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. Ill.);
Puffer v. Union Pacific Railroad Co., No.
1:17-cv-01222 (C.D.Ill.). Moreover, the complaint herein
acknowledges as such by alleging, albeit falsely, that Ella
J. Rhone was bringing the lawsuit as the representative of
Bruce N. Rhone, Sr.'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/CF 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 Ella J.
Rhone'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 ...