de Palma v. John B Sanfilippo & Son, Inc.

Filing 29

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 9/25/2014:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ADRIANA CARPIO DE PALMA, as
Successor Personal
Representative of the Estate
of Martin Palma Salcedo,

Case No. 14 C 2008

Plaintiff,

Hon. Harry D. Leinenweber

v.
JOHN B. SANFILIPPO & SON,
INC.,
Defendant.

MEMORANDUM OPINION AND ORDER
I.

BACKGROUND

Defendant John B. Sanfilippo & Son, Inc. (“Defendant”),
employed

Martin

Palma

Salcedo

supervisor for over a year.
diagnosed with cancer.

(“Salcedo”)

Salcedo’s

a

production

In early May 2012, Salcedo was

He immediately told his supervisors, who

fired Salcedo shortly thereafter.
passed away.

as

About a year later, Salcedo

Plaintiff Adriana Carpio de Palma (“Plaintiff”),

surviving

spouse,

sued

Defendant

on

her

deceased

husband’s behalf for violating the Family Medical Leave Act
(“FMLA”) by discriminating against Salcedo because of his health.
On

June

13,

2014,

Plaintiff

filed

the

First

Amended

Complaint with leave of the Court. The caption of this Complaint
identified Plaintiff as “Successor Personal Representative of the

Estate of Martin Palma Salcedo.”

When Plaintiff filed the

Complaint, she had not yet been named personal representative of
her husband’s estate.
appointed

personal

But, on July 21, 2014, Plaintiff was

representative.

Defendant

now

moves

to

dismiss, arguing that Plaintiff does not have standing under the
FMLA and that the Court should not apply the relation-back
doctrine to Plaintiff’s Amended Complaint.

For the reasons

stated herein, Defendant’s Motion to Dismiss [ECF No. 19] is
denied.
II.

LEGAL STANDARD

To survive a motion to dismiss, a complaint must provide a
short and plain statement of the claim showing the plaintiff is
entitled to relief sufficient to provide the defendant with “fair
notice” of the claim and its basis.

FED. R. CIV. P. 8(a)(2); Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

The complaint

must “plead[] factual content that allows the court to draw the
reasonable

inference

misconduct alleged.”
(2009).

that

the

defendant

is

liable

for

the

Ashcroft v. Igbal, 556 U.S. 662, 678

The factual allegations in a complaint must “raise a

right to relief above the speculative level.”

Twombly, 550 U.S.

at 555–56.
III.

ANALYSIS

Defendant first argues that Plaintiff does not have standing
to bring an FLMA claim on behalf of her husband.
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Federal Rule of

Civil Procedure 17(b) “provides that . . . the capacity of one
suing as a representative is governed by the law of the state in
which the district court is sitting.”

De La Fuente Flores v.

D.E.A., No. 04 C 5037, 2005 WL 351059, at *2 n.3 (N.D. Ill.
Feb. 14, 2005).

Because Plaintiff is suing in a representative

capacity, Illinois law governs.

“The longstanding rule in

Illinois . . . is that the [personal representative] of a
decedent's estate has standing to file suit on behalf of the
decedent, but the legatees, heirs and devisees have no such
standing.”
at *2

Abiola v. Abubakar, No. 02 C 6093, 2003 WL 22012220,

(N.D.

omitted).

Ill.

Aug. 25, 2003)

(internal

quotation

marks

When Plaintiff filed the First Amended Complaint, she

was not yet appointed as her husband’s personal representative.
Because she was appointed subsequently, however, she now complies
with Rule 17(b).
Plaintiff’s initial failure to comply with Rule 17(b) is not
grounds for dismissing this case.

Generally, failure to comply

with Rule 17 does not require immediate dismissal.

See, Thomas

D. Philipsborn Irrevocable Ins. Trust v. Avon Capital, LLC, No.
11 C 3274, 2014 WL 273649, at *2 (N.D. Ill. Jan. 24, 2014)
(“[E]ven
Rule

17[,]

though
.

.

Plaintiff
.

the

Court

had
did

not

not
need

complied
to

dismiss

with
the

case. . . .”); Whitaker v. City of Chicago, No. 11 C 7362, 2012
WL 4760868, at *4 (N.D. Ill. Oct. 5, 2012) (“[P]ursuant to Rule

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17, district courts may grant plaintiffs time to acquire the
appropriate probate appointments prior to dismissing a lawsuit.”)
Further, Rule 17(a)(3) explicitly “provides that a case should
not be dismissed because it has not been brought in the name of
the

real

party

of

interest

until,

after

an

objection,

a

reasonable time has been allowed for the real party in interest
to ratify, join, or be substituted into the action.”

CWCapital

Asset Mgmt., LLC v. Chi. Props., LLC, 610 F.3d 497, 502 (7th Cir.
2010) (internal quotation marks omitted). After Rule 17(a)(3) is
satisfied, “the action proceeds as if it had been originally
commenced by the real party in interest.”

Id.

Regardless of whether Plaintiff satisfied Rule 17 when her
Complaint was filed, she clearly satisfies it now.
Complaint

will

not

be

dismissed

based

on

Rule

Thus, her
17.

See,

Swearingen-El v. Cook Cnty. Sheriff's Dep't, 456 F.Supp.2d 986,
990 (N.D. Ill. 2006) (denying a motion to dismiss for lack of
standing where the plaintiff initially did not comply with Rule
17 but then corrected the defect).
Defendant also argues that the Court should not apply the
relation back doctrine and find that Plaintiff’s First Amended
Complaint is untimely. “[T]he Illinois and federal relation-back
rules are the same, so the analysis under either set of rules is
identical.”

PNC Equip. Fin., LLC v. Zilberbrand, No. 12-cv-

03074, 2014 WL 448384, at *6 (N.D. Ill. Feb. 4, 2014) (internal

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quotation marks omitted).

“Under Illinois law, relation back is

allowed only when two requirements are met:

(1) the original

complaint was timely filed, and (2) the amended complaint grew
out of the same transaction or occurrence set forth in the
original pleading.”

Henderson v. Bolanda, 253 F.3d 928, 932-33

(7th Cir. 2001).
Defendant does not dispute that the occurrence in both the
original

and

amended

Complaints

is

the

same.

Instead,

Defendant’s argument is that Plaintiff’s Amended Complaint is
untimely

because

she

was

careless

in

failing

to

attain

appointment as personal representative before filing it.

The

only case upon which Defendant relies is distinguishable because
in that case the defendant, not the plaintiff, was deceased.
Augustus v. Estate of Somers, 662 N.E.2d 138, 140 (Ill. App. Ct.
1996).

Illinois courts have recognized that this difference is

significant.

Ill. Inst. of Tech. Research Inst. v. Indus.

Comm'n, 731 N.E.2d 795, 803 (Ill. App. Ct. 2000). Also, contrary
to Defendant’s contention, Illinois courts have routinely allowed
a plaintiff to amend a complaint after the statute of limitations
ran

where

the

plaintiff

failed

representative of a decedent’s estate.

to

name

the

personal

See, e.g., Marcus v. Art

Nissen & Son, Inc., 586 N.E.2d 694, 696 (Ill. App. Ct. 1991);
Lopez v. Oyarzabal, 535 N.E.2d 8, 10 (Ill. App. Ct. 1989);
Redmond v. Cent. Cmty. Hosp., 382 N.E.2d 95, 101 (Ill. App. Ct.
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1978).

“With regard to plaintiffs, relation back has been

allowed where a suit was filed by [a personal representative] on
behalf of a deceased individual but the [representative] had not
yet been appointed or the appointment was somehow defective.”
Indus. Comm'n, 731 N.E.2d 795, 803 (2000).

The facts of this

case fit this rule exactly; thus, Plaintiff’s Amended Complaint
relates back to the original Complaint, which was filed timely.
IV.

CONCLUSION

For the reasons stated herein, the Defendant’s Motion to
Dismiss [ECF No. 190] is denied.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Date:9/25/2014

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