Selena Capers v. Nat'l Railroad Passenger Corp.

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, Raymond W. Gruender and Duane Benton (UNPUBLISHED) [4483269] [16-1171]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-1171
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Selena Capers, also known as Jane Doe, No. 49
lllllllllllllllllllll Plaintiff - Appellant
v.
National Railroad Passenger Corporation, a Congressionally Incorporated
Corporation, also known as Amtrak
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: September 21, 2016
Filed: December 23, 2016
[Unpublished]
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Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
Selena Capers appeals the dismissal of her common carrier strict liability claim
against the National Railroad Passenger Corporation (“Amtrak”). For the reasons
discussed below, we affirm the dismissal on alternative grounds.

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This case derives from Capers’s allegation that she was sexually assaulted by
an Amtrak porter while aboard a Texas Eagle-line train. Nearly three years after the
incident, Capers brought a two-count complaint against Amtrak under the pseudonym
“Jane Doe No. 49” for common carrier strict liability and negligence, but she
neglected to seek leave from the district court1 to proceed anonymously. In response
to Amtrak’s motion to dismiss, but after the applicable three-year statute of
limitations had expired, Capers attempted to cure this defect by filing an amended
complaint that reflected her true identity. The district court allowed this new pleading
to relate back under Federal Rule of Civil Procedure 15(c), thus preserving her
claims. However, the court simultaneously granted dismissal as to the common
carrier strict liability count for failure to state a claim, concluding that Arkansas law
no longer recognized this cause of action and, alternatively, that the state’s one-year
statute of limitations for assault barred recovery based on respondeat superior
doctrine. After conducting discovery, the district court also granted Amtrak’s motion
for summary judgment as to the remaining negligence count.
On appeal, Capers contests only the dismissal of her common carrier strict
liability claim, arguing that this cause of action remains viable under Arkansas law.
Meanwhile, Amtrak insists that the district court properly concluded that Arkansas
abandoned this cause of action. Alternatively, Amtrak maintains that Capers’s claim
was time barred based on her failure to comply with Rule 10(a)’s requirement that a
complaint identify all parties before the expiration of the three-year general-tort
limitations period.2 See Ark. Code Ann. § 16-56-105(3). We affirm the dismissal of

1

The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
2

Amtrak now concedes that the one-year statute of limitations for assault does
not apply to common carrier strict liability claims. See St. Louis, Iron Mountain &
S. Ry. Co. v. Mynott, 102 S.W. 380, 381 (Ark. 1907).
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Capers’s common carrier strict liability claim on this alternative ground. See
McAdams v. McCord, 584 F.3d 1111, 1113-14 (8th Cir. 2009) (citation omitted).
As an initial matter, we note that, while Capers argues that her pseudonymous
complaint initiated a valid action as to Jane Doe No. 49, she nowhere suggests that
it also commenced a valid action as to herself. Accordingly, we decline to consider
any other potential implications of her failure to comply with the Rule 10(a) mandate
to name all parties or the alternate requirement to request permission to proceed under
a pseudonym. See Fed. R. Civ. P. 10(a) (“[T]he title of the complaint must name all
the parties . . . .”); W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th Cir. 2001)
(“Proceeding under a pseudonym in federal courts is, by all accounts, an unusual
procedure. . . . Nevertheless, in certain limited circumstances, courts do allow a party
to proceed under a pseudonym. . . . When a party wishes to file a case anonymously
or under a pseudonym, it must first petition the district court for permission to do
so.”) (internal citations and quotations omitted).3 Instead, we focus on the two
theories Capers advances to preserve her claim: (1) that her amended complaint
relates back to the original filing under Rule 15; and (2) that Rule 17 allows us to
3

In its brief in support of the motion to dismiss, Amtrak invoked jurisdictional
defenses under 12(b)(1) and 12(b)(2)—for lack of subject matter jurisdiction and
personal jurisdiction, respectively. On appeal, however, Amtrak omits reference to
these two subsections of Rule 12, instead arguing more broadly that, when a plaintiff
fails to seek leave to proceed pseudonymously, “no action is commenced, and the
district court lacks jurisdiction over the unnamed plaintiff.” See Nat’l Commodity &
Barter Ass’n v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989) (per curiam). Given this
revision, we read Amtrak’s alternative basis for affirming as a statute of limitations
argument for dismissal under 12(b)(6), and accordingly, we construe “jurisdiction”
to mean that Capers was not “before the court” for limitations purposes. Thus, we are
not compelled to weigh in on the jurisdictional implications of Rule 10(a) because,
to the extent that Capers’s failure to seek leave to proceed anonymously impacted the
district court’s jurisdiction, it did not affect subject matter jurisdiction, and Amtrak
waived any personal jurisdiction defense by not renewing it on appeal. See Fed. R.
Civ. P. 12(h); Ruminer v. Gen. Motors Corp., 483 F.3d 561, 563 n.2 (8th Cir. 2007).
-3-

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substitute her for “Jane Doe No. 49” as if she had brought the action in her own name.
We review both issues de novo, as they concern legal interpretations of the rules of
civil procedure. Perkins v. U.S. W. Commc’ns, 138 F.3d 336, 338 (8th Cir. 1998).
Capers primarily looks to Federal Rule of Civil Procedure 15 as a means of
preserving her common carrier strict liability claim. She first asserts entitlement to
amend her pseudonymous complaint under Rule 15(a)(1)(B), which allows plaintiffs
to amend pleadings once as a matter of course within twenty-one days of the filing
of an answer or a 12(b) motion. See Fed. R. Civ. P. 15(a)(1)(B). As her amendment
came after the three-year statute of limitations had expired, Capers further relies on
relation back under Rule 15(c)(1)(C) to save her claim. However, Arkansas Rule 15
applies in this case and precludes the relation back of Capers’s amended pleading.
The parties agree that Arkansas law governs all substantive issues related to
this action—and rightly so. See Aliotta v. Nat’l R.R. Passenger Corp., 315 F.3d 756,
759 (7th Cir. 2003) (explaining that the Erie doctrine “extends beyond diversity
actions to cover federal question jurisdiction cases in which there is a state law cause
of action”). Although we generally apply federal law on “procedural” matters like
amendability, see Jones ex rel Jones v. Corr. Med. Servs., Inc., 401 F.3d 950, 952
(8th Cir. 2005), we defer to state law as to considerations that form “an integral part
of the state statute of limitations,” at least “in the absence of a federal rule directly on
point,” Walker v. Armco Steel Corp., 446 U.S. 740, 752 (1980). Applying this
analysis to the case at hand, we first note that Federal Rules are not sufficiently broad
to control Capers’s relation-back argument. Federal Rule 15(c) indicates no intention
of allowing for the relation back of pseudonymous complaints, and Capers cites no
federal precedent applying Rule 15(c) to such pleadings, even in the absence of Erie
concerns. Second, at least in the present context, relation-back doctrine constitutes
an integral part of the state statute of limitations, as the Arkansas Supreme Court
repeatedly has held that, “where an action is brought in the name of a non-existing
plaintiff, [a Rule 15] amendment of complaint by substituting the proper party to the
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action as plaintiff will be regarded as the institution of a new action as regards the
statute of limitations.” Bryant v. Hendrix, 289 S.W.3d 402, 406 (Ark. 2008) (quoting
Ark-Homa Foods, Inc. v. Ward, 473 S.W.2d 910, 911 (1971)). Based on this
precedent and the absence of a “direct collision” with the Federal Rules, see Walker,
446 U.S. at 749 (citation omitted), we find that Arkansas Rule 15 controls, thus
precluding relation back. Alternatively, even if the direct-conflict analysis of Hanna
v. Plumer, 380 U.S. 460 (1965), required us to apply Federal Rule 15, there would be
no valid action to which Capers’s amended complaint could relate back. Under
Federal Rule 10(a), she failed to initiate a valid action at least until she sought to
amend her complaint, by which time the statute of limitations had run, as she was not
properly before the court until then, if at all.4 See Gibbs, 886 F.2d at 1245 (“Absent
permission by the district court to proceed anonymously . . . a case has not been
commenced with respect to [unnamed parties].”). Thus, even under federal law,
Capers’s Rule 15 argument fails.
As an alternative basis for preserving her claim, Capers suggests that Federal
Rule 17(a) “allows the real parties in interest to be substituted in the action, which
[like Rule 15] relates back to the original complaint.” This argument is based on a
misapprehension of the term “real party in interest” and cannot preserve her claim.
In relevant part, Federal Rule 17(a) prohibits courts from “dismiss[ing] an
action for failure to prosecute in the name of the real party in interest until, after an
objection, a reasonable time has been allowed for the real party in interest to ratify,

4

We look to federal law for this alternative analysis because Arkansas has not
ruled on the consequences of a plaintiff’s failure to seek leave to proceed
pseudonymously, and the state supreme court would likely follow federal precedent
were this issue before it—especially given that Arkansas Rule 10 tracks its federal
counterpart. See Doe v. Weiss, 2010 Ark. 150, at 3 (2010) (affirming the denial of a
request to proceed anonymously under Rule 10, as well as the grant of a related
12(b)(6) motion to dismiss, based exclusively on federal case law).
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join, or be substituted into the action.”5 Fed. R. Civ. P. 17(a)(3). Capers cites a lone
district court order from EW v. N.Y. Blood Center that extends Rule 17 to
pseudonymous complaints. 213 F.R.D. 108, 109-10 (E.D.N.Y. 2003) (dismissing
defendant’s jurisdictional argument as “obviously wrong” based on Rule 17(a)
substitution). Beyond the fact that EW involved no statute of limitations defense, we
disagree with Capers’s understanding of “real party in interest.”
This
misinterpretation becomes clear after considering the meaning of “nominal party”:
One suing or defending for the use and benefit of another. A person
who is the plaintiff in an action, but who is not the real party in interest.
One joined as a party to comply with a technical rule of practice, not
because he has an interest in the subject matter of the action.
Nominal Party, Ballentine’s Law Dictionary (3d ed. 2010); see also Party (2),
Black’s Law Dictionary (10th ed. 2014) (“A party to an action who has no control
over it and no financial interest in its outcome . . . .”). With this definition in mind,
it is clear that Rule 17(a) operates to allow for the “ratification, joinder, or
substitution” of a real party in cases filed under the name of a nominal party. Indeed,
a brief glance at the 1966 Amendment to Rule 17(a) reveals that, “[i]n its origin, the
rule concerning the real party in interest . . . was designed to allow an assignee to sue
in his own name.” Fed. R. Civ. P. 17(a) advisory committee’s note to 1966
amendment (cautioning that this provision “should not be misunderstood or distorted.
It is intended to prevent forfeiture when determination of the proper party to sue is
difficult or when an understandable mistake has been made.”).
5

Our analysis of Capers’s substitution argument follows federal law, as
“Arkansas’s Rule 17 is virtually identical to the federal rule.” St. Paul Mercury Ins.
Co. v. Circuit Court of Craighead Cty., 73 S.W.3d 584, 593 (Ark. 2002) (Imber, J.,
concurring) (denying substitution based on the lack of an “understandable mistake”
in the initial pleading); see also Ark. R. Civ. P. 17 reporter’s note 1 (“[Arkansas] Rule
17 is a slightly modified version of FRCP 17.”). Further, there is no Arkansas
precedent indicating a different meaning of “real party in interest” under the state
version of Rule 17, unlike the Rule 15 inquiry above.
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Here, “Jane Doe No. 49” is not a separate person from Selena Capers and thus
cannot be deemed a nominal party. Rather, this pseudonym was a legal fiction
employed to protect her privacy. Thus, substitution cannot operate to save her claim
any more than relation-back doctrine. Further, even if Rule 17(a) did apply, Capers’s
position ultimately fails for the same reason as her Rule 15(c) argument; there was
no valid action in which to substitute her as a party. See Gibbs, 886 F.2d at 1245.
Accordingly, because Capers filed her amended complaint after the three-year
statute of limitations expired and because neither Rule 15(c) nor Rule 17(a) apply to
preserve her common carrier strict liability claim, we affirm dismissal.6
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6

Given that Capers’s common carrier strict liability claim was time barred, we
need not consider whether this cause of action remains viable under Arkansas law.
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