TAYLOR v. NORFOLK SOUTHERN RAILWAY COMPANY

Filing 28

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 2/6/2015, that NSRC's motion for judgment on the pleadings (Doc. 18 ) be GRANTED, and the case be DISMISSED WITH PREJUDICE. (Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RICHARD ERIC TAYLOR,
individually and as Executor
for the Estate of DIANE GRUBB
TAYLOR,
Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY
COMPANY,
Defendant.

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1:12cv688

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This is a damages action that follows a prior personal injury
action arising from the same alleged asbestos exposure but was
dismissed

for

failure

to

timely

substitute

a

personal

representative upon the death of Plaintiff’s decedent.

Defendant

Norfolk Southern Railway Company (“NSRC”) moves for judgment on
the pleadings, arguing that the dismissal of the prior action under
Rule 25 of the Federal Rules of Civil Procedure acts as res
judicata against the present claims it contends arise out of the
same transactions and core of operative facts.

(Doc. 18.)

For

the reasons set forth below, the motion will be granted and the
case will be dismissed. 1

1

NSRC’s subsequently filed motion for summary judgment (Doc. 20) and

I.

BACKGROUND
The background of this case unfolded over many years and

concerns wrongs from asbestos exposure allegedly committed half a
century ago. It spawned two lawsuits, each of which was originally
filed in a North Carolina trial court, removed to federal district
court, and transferred by the Judicial Panel for Multidistrict
Litigation (“JPML”) to the Eastern District of Pennsylvania, In re
Asbestos Products Liability Litigation, MDL No. 875.

The first of

these cases, filed in 2010, was ultimately dismissed, and the
second is the present lawsuit.
A.

The 2010 Lawsuit

On October 28, 2010, Mr. Richard Eric Taylor and Mrs. Diane
Grubb Taylor, husband and wife, filed a complaint in a North
Carolina trial court against Defendant NSRC.
Complaint.”)

(Doc. 18-1, “2010

Mrs. Taylor brought claims against NSRC for her

personal injuries due to asbestos exposure, while Mr. Taylor
brought a derivative claim for loss of consortium. 2

NSRC removed

the case to the United States District Court for the Western
District

of

North

Carolina.

On

January

11,

2011,

the

JPML

Mr. Taylor’s motion to partially dismiss household expenses (Doc. 24)
need not be reached.
2

Mrs. Taylor’s claims sounded in negligence (first cause of action),
premises liability (second cause of action), “take home exposure” (third
cause of action), and punitive and exemplary damages (fourth cause of
action); Mr. Taylor claimed loss of consortium (fifth cause of action).
(Doc. 18-1.)

2

transferred the case to the Eastern District of Pennsylvania, where
it was consolidated for pretrial proceedings in MDL No. 875.
On April 24, 2011, Mrs. Taylor died, and on May 5, 2011, Mr.
Taylor was appointed executor of her estate. 3

(Compl. ¶ 3.)

On

May 26, 2011, Mr. Taylor filed a Statement of Death of a Party,
noticing her death to the district court and NSRC.

Suggestion of

Death, Taylor v. Norfolk S. Ry. Co., No. 2:11-cv-60075, (E.D. Pa.
May 26, 2011), ECF No. 15.
to

substitute

himself

On October 27, 2011, Mr. Taylor moved
for

Mrs.

Taylor,

as

the

personal

representative of her estate, and to amend the complaint by adding
a claim for wrongful death.
Mr. Taylor’s motion to substitute was untimely. Under Federal
Rule of Civil Procedure 25(a)(1), when a party dies, a substitution
must be made “within 90 days after service of a statement noting
the death.”

The motion to substitute was therefore due on August

24, 2011, making Mr. Taylor’s October 27 filing over a month late.
See Order, Taylor v. Norfolk S. Ry. Co., No. 2:11-cv-60075, (E.D.
Pa. May 29, 2012), ECF No. 44.

Finding that the motion to

substitute was inexcusably tardy, and given the failure to file a

3

Mr. Taylor also describes his representative capacity as one of
“personal representative” of Mrs. Taylor’s estate.
Under North
Carolina’s Wrongful Death Act, “only the ‘collector of the decedent’ or
the personal representative – i.e., the administrator of an intestate,
or the executor of one who dies testate — may institute an action for
wrongful death; and he does so as the representative of the estate.”
Bowling v. Combs, 298 S.E.2d 754, 756 (N.C. 1983). The term “personal
representative” includes both executors and administrators. N.C. Gen.
Stat. § 28A-1-1(5).

3

timely

motion

for

an

extension

dismissed the entire case.

See id.

of

time,

the

district

court

Mr. Taylor moved the court to

reconsider the dismissal, but the court denied the motion over a
year later.

Order, Taylor v. Norfolk S. Ry. Co., No. 2:11-cv-

60075, (E.D. Pa. October 4, 2013), ECF No. 47.
appeal these rulings.
B.

Mr. Taylor did not

(Doc. 19 at 4.)

The Current Lawsuit

On June 8, 2012, a few days before Mr. Taylor filed his motion
for reconsideration, he filed the present action in a different
North Carolina trial court, and NSRC removed the case to this
court.

In this complaint, Mr. Taylor brought Mrs. Taylor’s prior

personal injury claims now as apparent survival claims, his own
claim for loss of consortium in his individual capacity and, as
executor of Mrs. Taylor’s estate, a claim for wrongful death
predicated on Mrs. Taylor’s personal injury claims from the first
lawsuit. 4

(Doc. 5.)

case to MDL No. 875.

On August 27, 2012, the JPML transferred the
(Docs. 11, 12.)

Over a year later, on March

14, 2014, the JPML remanded the case to this court.

(Doc. 15.)

On April 30, 2014, NSRC filed the present motion for judgment on
the pleadings, contending that the dismissal of the 2010 lawsuit

4

The current complaint alleges negligence (first cause of action),
premises liability (second cause of action), “take home exposure” (third
cause of action), gross negligence — willful, wanton, and reckless
conduct (fourth cause of action), loss of consortium (fifth cause of
action), and wrongful death action pursuant to N.C. Gen. Stat. § 28A18-2 (sixth cause of action). (Doc. 5.)

4

acted as res judicata of the claims in this action.

(Doc. 18.)

The motion has been fully briefed (Docs. 19, 23, 26) and is ready
for resolution.
II.

ANALYSIS
A.

Standard of Review

NSRC moves for judgment on the pleadings under Rule 12(c) of
the Federal Rules of Civil Procedure.

The standard of review

governing motions for judgment on the pleadings is the same as
that employed on motions to dismiss for failure to state a claim
under Rule 12(b)(6).
(4th Cir. 2014).

Drager v. PLIVA USA, Inc., 741 F.3d 470, 474

To survive either motion, “a complaint must

contain sufficient factual matter . . . to ‘state a claim to relief
that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

A claim is plausible “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
motion

under

Rule

12(c)

“tests

only

the

sufficiency

of

Id.
A
the

complaint and does not resolve the merits of the plaintiff’s claims
or any disputes of fact.”

Drager, 741 F.3d at 474 (citing Butler

v. United States, 702 F.3d 749, 752 (4th Cir. 2012)).
In adjudicating a motion under Rule 12(c), the court may
consider the complaint, the answer, and any documents incorporated
5

by reference into these pleadings.

Mendenhall v. Hanesbrands,

Inc., 856 F. Supp. 2d 717, 724 (M.D.N.C. 2012). Documents attached
to an answer or a motion to dismiss can only be considered if they
were integral to and explicitly relied on in the complaint, and if
plaintiffs do not dispute their authenticity.

Am. Chiropractic

Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir.
2004).

Furthermore, when considering a motion to dismiss on

grounds of res judicata, the court “may take judicial notice of
facts from a prior judicial proceeding when the res judicata
defense raises no disputed issue of fact.”

Q Int’l Courier, Inc.

v. Smoak, 441 F.3d 214, 216 (4th Cir. 2006).

In this case, no

party has shown a disputed issue of fact concerning the prior
lawsuit.

Therefore, the court will take judicial notice of the

litigants’ filings and the court’s orders in the prior lawsuit.
B.

Background North Carolina Law

While federal law provides the framework for analyzing the
motion before the court, North Carolina’s law on survivorship and
wrongful death under which the two lawsuits’ claims are brought
are central to its resolution.
Survivorship and wrongful death claims are each created by
statute.

Under N.C. Gen. Stat. § 28A-18-1(a), a decedent’s right

to prosecute or defend an action survives the decedent’s death,
with the right to sue or defend surviving only for the personal
representative

of

the

decedent’s
6

estate.

This

survivorship

statute reverses the common law rule that claims abate upon death
and simply permits the personal representative to step into the
decedent’s shoes to prosecute the decedent’s cause of action.

A

judgment entered in a survivorship action “is an asset of the
decedent’s estate.”

State Auto Ins. Co. v. Blind, 650 S.E.2d 25,

29 (N.C. Ct. App. 2007).

Survivorship actions can be affected by

the statute of limitations.
underlying

claim

has

If the statute of limitations for the

expired

survivorship action is barred.

when

the

decedent

dies,

the

See N.C. Gen. Stat. § 28A-18-1(a)

(preserving rights to defend against claims of decedent to claims
made by decedent’s personal representative); Camper v. Manning,
No. 2:11CV157, 2011 WL 2550820, at *4 (E.D. Va. June 27, 2011)
(applying
limitations

North

Carolina

defense

law

could

and
be

holding
raised

that

statute

against

of

personal

representative as it could have been raised against decedent).
But if the decedent dies before the underlying claim expires, the
personal representative may bring the survivorship claim after the
running of the underlying statute of limitations, so long as the
claim is brought within one year of the death.

N.C. Gen. Stat.

§ 1-22.
A wrongful death claim is a “distinct and separate” cause of
action created by N.C. Gen. Stat. § 28A-18-2.
Employers Ins. Co., 418 S.E.2d 645, 648 (N.C. 1992).

Dunn v. Pac.
The cause of

action accrues upon the decedent’s death and remedies misconduct
7

causing death specifically.

See Raftery v. Wm. C. Vick Const.

Co., 230 S.E.2d 405, 407 (N.C. 1976).

As in survivorship claims,

only the personal representative can bring a wrongful death claim.
N.C. Gen. § 28A-18-2(a).

Similarly, wrongful death remedies

include compensation that would be owed the decedent, had he or
she lived.
claims,

Id. § 28A-18-2(b)(1)–(2).

wrongful

death

claims

allow

But unlike survivorship
much

broader

recoverable

damages for those the decedent has left behind as a result of the
death,

including

reimbursement

for

the

decedent’s

funeral

expenses, the loss of decedent’s income, and the loss of the
decedent’s society and companionship.
(4).
not

See id. § 28A-18-2(b)(3)–

And again unlike survivorship claims, any recovery becomes
an

asset

of

the

estate,

but

is

held

in

trust

for

beneficiaries designated by the Intestate Succession Act.

the
N.C.

Gen. Stat. § 28A-18-2(a); Brown v. S. Ry. Co., 162 S.E. 613, 617
(N.C. 1932).

To come within the statute of limitations, an action

for wrongful death must be filed within two years of the decedent’s
death, and, on the date of the death, the decedent’s underlying
claim must not have been barred by the statute of limitations for
bodily injury.

Dunn, 418 S.E.2d at 647.

Survivorship and wrongful death actions, though technically
separate, bear an important relationship to one another.

If both

are brought in one complaint, they should be “stated separately,”
and if they are brought in separate actions, they should be
8

“consolidated for trial.”

Bowen v. Constructors Equip. Rental

Co., 196 S.E.2d 789, 807 (N.C. 1973).

But just because the claims

are separate and permit overlapping damages does not mean that a
defendant will be subjected to double damages for the same wrongful
conduct.

See id.; Hoke v. Atl. Greyhound Corp., 38 S.E.2d 105,

109–10 (N.C. 1946).

A wrongful death claim depends upon the

viability of a decedent’s personal injury claim (which becomes a
survivorship claim upon death).

See N.C. Gen. Stat. § 28A-18-2(a)

(providing that wrongful death claim exists only where decedent
would have had a personal injury claim “if the injured person had
lived”); Abney v. Coe, 493 F.3d 412, 421 n.2 (4th Cir. 2007)
(noting same); Nelson v. United States, 541 F. Supp. 816, 818
(M.D.N.C. 1982) (“The wrongful death action exists if and only if
the decedent could have maintained an action for negligence or
some other misconduct if she had survived. . . .

The death is not

the operative fact upon which liability rests.”).
Given this dependent relationship and the fact that the
Wrongful Death Act both encompasses and surpasses the recovery on
a survivorship claim, a survivorship claim will commonly give way
to

the

wrongful

death

claim,

with

the

latter

exclusive remedy for the decedent’s injuries.

providing

the

For example, when

a defendant has caused a decedent injuries that ultimately result
in death, any survivorship claim merges into the wrongful death
claim, with the latter providing the “only remedy.”
9

Bolick v. S.

Ry. Co., 50 S.E. 689, 690 (N.C. 1905); accord Blind, 650 S.E.2d at
29 (“[W]e hold that when a single negligent act of the defendant
causes a decedent’s injuries and those injuries unquestionably
result in the decedent’s death, the plaintiff’s remedy for the
decedent’s pain and suffering and medical expenses lies only in a
wrongful death claim.

Such claim is ‘encompassed by the wrongful

death statute’ and ‘must be asserted under that statute.’” (quoting
Christenbury v. Hedrick, 234 S.E.2d 3, 5 (N.C. Ct. App. 1977));
McDonald v. Suggs, No. 5:07-CV-339-D, 2008 WL 2129860, at *5
(E.D.N.C. May 20, 2008) (“[W]hen a survival action seeks damages
that are recoverable under the WDA [Wrongful Death Act], the
survival action must be dismissed.”).
But when it is alleged that a decedent suffered personal
injuries

and

death

that

resulted

from

different

causes,

the

personal representative can plead survivorship and wrongful death
claims in the alternative.

Alston v. Britthaven, Inc., 628 S.E.2d

824, 826-27, 831 (N.C. Ct. App. 2006) (explaining that there was
a “viable alternate explanation” for nursing home resident’s death
(e.g., Alzheimer’s disease), besides the nursing home’s conduct
that caused some pre-death injuries); cf. Blind, 650 S.E.2d at 29
(finding that motorist’s pain and suffering and medical expenses
were both “unquestionably” caused by the same negligent conduct of
another driver).

When the death and pre-death injuries have

“viable alternate” causes, the jury must first answer whether the
10

defendant’s “wrongful act caused decedent’s death.”
S.E.2d at 832.

Alston, 628

If the jury determines it did, the jury must

determine whether the plaintiff can recover for wrongful death
only.

Id.

But if the jury finds that the defendant did not cause

the decedent’s death, the jury must determine the survivorship
action, i.e., whether the defendant caused the decedent’s predeath injuries and the degree of the decedent’s damages excluding
death.

Id.

Under

North

Carolina

law,

therefore,

when

a

defendant’s

conduct causes both injury and death, enabling both survivorship
and wrongful death claims to be brought, the claims should be
brought together, or else a separate judgment on one claim will
preclude the other.

See id. at 831.

Thus, a judgment on a

survivorship claim will preclude a judgment on a wrongful death
claim, even though the latter remedies a greater array of injuries,
because the damages for both claims result “from a single wrong.”
Id. Because survivorship actions claim the same harm as a personal
injury action, the same rule applies to actions taken by the
decedent during his or her lifetime on the underlying personal
injury claim.
a

plaintiff’s

Thus, a judgment on a personal injury claim during
lifetime

will

act

5

as

a

complete

bar 5

against

Although using the terms merger and bar, the North Carolina Supreme
Court was employing principles more commonly known today as res judicata
and claim preclusion. See Migra v. Warren City Sch. Dist. Bd. of Educ.,
465 U.S. 75, 77 n.1 (1984); see generally 18 Charles A. Wright et al.,
Federal Practice and Procedure § 4402 (2d ed. 2002).

11

survivorship and wrongful death claims arising from the same
conduct but brought after his death, because the personal injury,
wrongful death, and survivorship claims all have their “foundation
in a single wrong.”

Edwards v. Interstate Chem. Corp., 87 S.E.

635, 635-36 (N.C. 1916).

This is true even if the personal injury

claim brought during the decedent’s life was unsuccessful.

See

id. at 636 (“If the deceased, in his lifetime, has done anything
that would operate as a bar to a recovery by him in damages for
the personal injury, this will operate equally as a bar in an
action by his personal representative for his death.” (quoting
Francis B. Tiffany, Death by Wrongful Act § 124 (2d ed. 1913)).
North Carolina’s rules as to the interplay between personal
injury, survival, and wrongful death actions are not unique but
rather mirror that of the majority of States.

See Smith v. Brown

& Williamson Tobacco Corp., 275 S.W.3d 748, 769 (Mo. Ct. App. 2008)
(citing

Edwards),

and

the

Restatement

of

Judgments,

see

Restatement (Second) of Judgments § 45(1) (1982) (providing that
a survival action is precluded if the first action proceeded to
judgment either “for or against the injured person before he
died”), id. § 46 (providing the same for wrongful death claims).
With this background in mind, the court now turns to an
analysis of the question presented in this case: whether the
dismissal in the 2010 Lawsuit acts as res judicata against the
claims in the current action.
12

C.

Res Judicata

Res

judicata,

also

known

as

claim

preclusion,

prevents

parties from raising claims or defenses in a subsequent lawsuit
that were or could have been raised in a prior lawsuit between
them.

Pueschel v. United States, 369 F.3d 345, 354 (4th Cir.

2004).

When, as here, one federal court sitting in diversity

considers the preclusive effect of a judgment rendered by another
federal court sitting in diversity, “the federal common law of res
judicata should be applied to protect the integrity of federal
judgments, even though a decision is based on state law.”

In re

Air Crash at Dallas/Fort Worth Airport on Aug. 2, 1985, 861 F.2d
814, 816 (5th Cir. 1988); accord Harnett v. Billman, 800 F.2d 1308,
1313 (4th Cir. 1986).

However, when res judicata implicates “an

important question of state law such as privity,” also at issue
here, federal courts apply state law to determine preclusion.
Harnett, 800 F.2d at 1313 (citing Restatement (Second) of Judgments
§ 87 cmt. b (1982)).
Under federal common law, the party asserting res judicata
must demonstrate three elements: “(1) a final judgment on the
merits in a prior suit; (2) an identity of the cause of action in
both the earlier and later suit; and (3) an identity of parties or
their privies in the two suits.”

Pueschel, 369 F.3d at 354–55

(citing Nash Cnty. Bd. of Educ. v. Biltmore Co., 640 F.2d 484, 486
(4th Cir. 1981)).

Only the second and third elements are disputed
13

in this case, because Mr. Taylor concedes that the earlier case
reached a final judgment on the merits.
1.

(See Doc. 23 at 3.) 6

Identity of the Causes of Action
a.

Same Transaction Test

The parties dispute whether the causes of action in the
present case are the same as those in the prior case.

The Fourth

Circuit has consistently articulated a clear rule to determine the
identity of claims for res judicata purposes, adopted from the
Second Restatement of Judgments § 24: There is sufficient identity
in the causes of action when claims “arise out of the same
transaction or series of transactions, . . . or the same core of
operative facts.”

In re Varat Enterprises, Inc., 81 F.3d 1310,

1316 (4th Cir. 1996) (citations omitted); accord Harnett, 800 F.2d
at 1314.

This is true even if the claims “involve different harms

or different theories or measures of relief.”

Harnett, 800 F.2d

at 1314.
The determination is made pragmatically, considering factors
such as “whether the facts are related in time, space, origin, or

6

Under Rule 41(b), an involuntary dismissal, “except one for lack of
jurisdiction, improper venue, or failure to join a party under Rule 19[,]
operates as an adjudication on the merits,” unless the dismissal order
states otherwise. The Taylors’ earlier suit was dismissed under Rule
25(a), which is not an explicit exception, and the order did not
otherwise note that the dismissal was without prejudice. Order, Taylor
v. Norfolk S. Ry. Co., No. 2:11-cv-60075, (E.D. Pa. May 29, 2012), ECF
No. 44 (attached in this case as Doc. 18-2). Therefore, the dismissal
order constituted an adjudication on the merits for res judicata
purposes. See Russell v. City of Milwaukee, 338 F.3d 662, 667 (7th Cir.
2003).

14

motivation, [and] whether they form a convenient trial unit.”
Restatement (Second) of Judgments § 24(2).

If it were not, the

court “would allow parties to frustrate the goals of res judicata
through artful pleading and claim splitting given that ‘[a] single
cause of action can manifest itself into an outpouring of different
claims, based variously on federal statutes, state statutes, and
the common law.’”

Pueschel, 369 F.3d at 355 (quoting Kale v.

Combined Ins. Co. of Am., 924 F.2d 1161, 1166 (1st Cir. 1991)).
The court looks not just to the claims asserted in the earlier
lawsuit, but to all claims that could have been brought.

Nevada

v. United States, 463 U.S. 110, 129–30 (1983); In re Varat, 81
F.3d at 1315.

To preclude claims not brought earlier, the court

need only determine that they were “available” to the plaintiff in
the first action.

Ohio Valley Envtl. Coal. v. Aracoma Coal Co.,

556 F.3d 177, 210–11 (4th Cir. 2009).
Mr. Taylor argues that res judicata cannot bar his wrongful
death claim on account of a terminated prior personal injury action
brought

during

his

decedent’s

lifetime

because

Carolina law they are different causes of action.

under

North

(Doc. 23 at 7.)

In support, he relies on the North Carolina Supreme Court’s passage
in Dunn, 418 S.E.2d at 648, that “[t]he claim for wrongful death
is distinct and separate from the claim for bodily injury . . .
[and] [t]he only relation between the two is that both the personal
injury and resulting death were allegedly caused by the same
15

wrongful conduct.”

(Doc. 23 at 7.)

As is apparent from the

preceding discussion, however, the difficulty with this argument
is that it ignores applicable North Carolina law and the governing
federal standard of the same transaction test.
In general, a decedent’s claim for personal injury and her
estate’s claim for wrongful death are part of the same transaction
or occurrence because,
apart from the measure of damages, recovery for wrongful
death in North Carolina depends upon the same proof of
actionable negligence or misconduct under the general
rules of tort liability which would apply to an action
strictly for personal injury. The wrongful death action
exists if and only if the decedent could have maintained
an action for negligence or some other misconduct if she
had survived. Hence, although a wrongful death action
may be a distinct cause of action from one for negligent
infliction of personal injury, the theory or theories of
liability and the operative facts from which liability
arises are not different. . . . The death is not the
operative fact upon which liability rests.
Nelson, 541 F. Supp. at 818 (citations omitted), cited approvingly
by DiDonato v. Wortman, 358 S.E.2d 489, 491 (N.C. 1987) (“In plain
English, an action for wrongful death exists if the decedent could
have maintained an action for negligence or some other misconduct
if he had survived.”).

Although North Carolina’s Wrongful Death

Act “creates a new cause of action,” it is a right dependent upon,
and thus derivative of, a decedent’s putative personal injury claim
before her death.

Mitchell v. Talley, 109 S.E. 882, 884 (N.C.

1921); see also N.C. Gen. Stat. § 28A-18-2 (“When the death of a
person is caused by a wrongful act, neglect or default of another,
16

such as would, if the injured person had lived, have entitled the
injured person to an action for damages therefor. . . .” (emphasis
added)); Wilkerson ex rel. Estate of Wilkerson v. Nelson, 395 F.
Supp. 2d 281, 289 (M.D.N.C. 2005) (“Thus, the estate’s potential
for

recovery

[for

wrongful

death]

is

legally

derivative

of

[decedent’s] own ability to recover [for personal injury].”);
Brown v. Lumbermens Mut. Cas. Co., 285 N.C. 313, 319, 204 S.E.2d
829,

834

(1974)

(“Plaintiff’s

right

to

recover

against

his

intestate’s insurer under the uninsured motorist endorsement is
derivative

and

conditional.”);

Edwards,

87

S.E.

at

637

(“[A]lthough the [wrongful death] statute may be considered in
some respects as creating a new right of action, it has its
foundation in a single wrong . . . .”); id. at 636 (“[A]s the
foundation of the right of action is the original wrongful injury
to the decedent, it has been generally held that the new action is
a right dependent upon the existence of a right in the decedent,
immediately before his death to have maintained an action for his
wrongful injury.” (quoting Michigan Cent. R. Co. v. Vreeland, 227
U.S. 59, 70 (1913)); Sorrells v. M.Y.B. Hospitality Ventures, 424
S.E.2d 676, 678 (N.C. Ct. App. 1993) (“[A]ny wrongful death action
on behalf of the decedent driver is derivative . . . .”), rev’d on
other grounds, 435 S.E.2d 320 (N.C. 1993).
A comparison of the two complaints at issue here leads to the
inescapable conclusion that Mr. Taylor’s claim for wrongful death
17

arose out of the same series of transactions and core of operative
facts alleged in the 2010 Complaint.

All of NSRC’s misconduct

alleged in the present complaint is alleged in identical fashion
in the 2010 Complaint.

All of the basic facts in the two cases

“are related in time, space, origin, [and] motivation” because no
new misconduct is alleged.
§ 24(2).

Restatement (Second) of Judgments

The only difference is that, in this case, Mr. Taylor

alleges that NSRC’s tortious conduct also gives rise to a claim
under the Wrongful Death Act. 7
Moreover, the facts of the two cases stem from the same
transaction,

and

the

personal

injury

claims

(considered

as

survivorship claims after death) would have made “a convenient
trial

unit”

with

the

wrongful

death

Restatement of Judgments § 24(2).

claims

under

the Second

North Carolina law treats Mrs.

Taylor’s personal injury claims (once a personal representative

7

For an analogous case, where the defendant’s alleged misconduct was
the same in both lawsuits, see Nathan v. Takeda Pharm. Am., Inc., 546
F. App’x 176, 178 (4th Cir. 2013) (“As to identity of the causes of
action, the alleged wrongdoing underlying Nathan’s claims in this case
arises from the same facts underlying the Title VII action. Both cases
involve the defendants’ conduct regarding Nathan’s alleged performance
difficulties in 2009. In the Title VII Action, Nathan alleged that the
defendants’ actions were discriminatory and retaliatory; in this case,
he alleges that the same actions constituted a conspiracy to defame him.
Under these circumstances, we agree with the district court that these
claims arise out of the same transaction or the same core of operative
facts.”). While unpublished, Nathan is nevertheless valuable for its
persuasive authority. See Collins v. Pond Creek Mining Co., 468 F.3d
213, 219 (4th Cir. 2006) (recognizing that “we ordinarily do not accord
precedential value to our unpublished decisions” and that such decisions
“are entitled only to the weight they generate by the persuasiveness of
their reasoning” (citation omitted)).

18

was substituted) as part of the same transaction as the wrongful
death claim.

See Bolick, 50 S.E. at 690 (“[W]hen the death occurs

pending an action for personal injuries, of which the death is the
greatest, we think such cause is merged in the cause of action for
the death, and that the only remedy under our statute is that given
under [the Wrongful Death Act], and that the pending action for
the lesser [personal] injuries abates.”).

This is because North

Carolina requires that survivorship and wrongful death claims
arising from the same conduct be consolidated for trial, lest one
be precluded by a judgment in the other.
807; Alston, 628 S.E.2d at 831.

Bowen, 196 S.E.2d at

And even though the cause of

action for a survivorship claim is created by a statute different
from the one creating the wrongful death claim, this difference in
“form” does not undermine the claims’ identity in “substance” for
res judicata purposes.

Nash Cnty. Bd. of Educ. v. Biltmore Co.,

640 F.2d 484, 488 (4th Cir. 1981) (noting, in the antitrust
context, that “the identity of two actions, as intimately tied
together as these two, will not be destroyed in the res judicata
context

simply

because

the

two

suits

are

based

on

different

statutes,” where one cause of action arose from a state antitrust
statute and the other by a federal antitrust statute).
Therefore, under the facts of this case, the two lawsuits

19

reflect sufficient identity of their causes of action. 8
b.

Exceptions to the Same Transaction Test

Mr. Taylor argues that res judicata should not bar the present
lawsuit because the wrongful death claim was “not available until
a properly appointed Personal Representative was substituted as a
party to the prior action.”

(Doc. 23 at 9–10.)

Although claim

unavailability is an exception to res judicata, it does not save
Mr. Taylor’s case.
Generally, a claim that arises out of the same transaction or
core of operative facts involved in the earlier suit will be
barred, but that is not the case where the claim did not “exist”
at the time of the earlier case such that the parties lacked a
full and fair opportunity to litigate it.

See Union Carbide Corp.

v. Richards, 721 F.3d 307, 315 (4th Cir. 2013) (citing Taylor v.
Sturgell, 553 U.S. 880, 892 (2008)); Meekins v. United Transp.
Union, 946 F.2d 1054, 1057 (4th Cir. 1991).

A claim is deemed to

have been previously unavailable in two scenarios.

First, “on

rare occasions, when a new statute provides an independent basis
for relief which did not exist at the time of the prior action, a
second action on the new statute may be justified.”

Id. (quoting

18 James Wm. Moore et al., Moore’s Federal Practice, § 131.22[3]
(3d ed. 2013)).

This exception does not apply to changes in case

8

No one disputes that Mr. Taylor’s loss of consortium claim, brought
in both this case and the prior one, are identical.

20

law, however, which will not generally provide relief from res
judicata.

Id. at 315 n.5 (citing Federated Dep’t Stores, Inc. v.

Moitie, 452 U.S. 394, 398 (1981)).

Second, and more typically, “a

new factual development . . . gives rise to a fresh cause of
action.”

Union Carbide Corp., 721 F.3d at 315 (citing Lawlor v.

Nat’l Screen Serv. Corp., 349 U.S. 322, 328 (1955)).
Analogizing

to

Union

Carbide,

Mr.

Taylor

argues

that,

“[b]ecause the North Carolina Wrongful Death Statute created a new
cause of action that was unavailable to the Taylors when they
brought their initial claims, res judicata does not bar their
subsequent claims.”

(Doc. 23 at 11.)

But he misconstrues Union

Carbide and makes no showing that his case involves one of those
“rare occasions” where a new statute was passed after the first
lawsuit, creating a fresh cause of action.
In Union Carbide, the plaintiffs had previously sought black
lung survivors’ benefits, but their claims were dismissed in 2006.
721 F.3d at 310–11.

In 2010, Congress amended the United States

Code, adding a “fresh cause of action,” previously unavailable,
that also required proof of different facts from those at issue in
the first case.
judicata defense.

Id. at 315.

The Fourth Circuit rejected a res

The court explained,

[W]e recognize that the record evidence has not changed
since the denial of the original claims and that the
only relevant change is one of law. . . .
[T]he
statutory
change
in
law
provides
a
previously
unavailable basis for relief that justifies the instant
21

claims, since res judicata does not bar claims that the
parties have not had a “full and fair opportunity to
litigate.”
Id. (quoting Taylor v. Sturgell, 553 U.S. 880, 892 (2008)).
Union Carbide’s holding has no application to this case.

The

North Carolina General Assembly did not amend the Wrongful Death
Act in an intervening period between the two lawsuits involved
here.

Rather, the law has remained unchanged throughout both

actions.

Mr. Taylor recognized as much when he attempted to amend

the 2010 Complaint to add the wrongful death claim.

See Proposed

Amendment to Complaint for Wrongful Death, Taylor v. Norfolk S.
Ry. Co., No. 2:11-cv-60075, (E.D. Pa. Oct. 27, 2011), ECF No. 253.

Therefore, the intervening law exception does not apply.
The second exception is available when there has been “a new

factual development that gives rise to a fresh cause of action.”
Union Carbide, 721 F.3d at 315.

Union Carbide cited, as an example

of such a case, Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322
(1955).

Mr. Taylor analogizes his case to the facts in Lawlor,

arguing that whether two lawsuits involved “‘essentially the same
course of wrongful conduct’ is not decisive” where it gives rise
to a new cause of action.
U.S. at 327).)

(Doc. 23 at 8–9 (quoting Lawlor, 349

Again, Mr. Taylor misperceives the exception.

In Lawlor, the plaintiffs had filed an antitrust lawsuit in
1942, alleging that the defendants had conspired to monopolize in
the distribution of standard accessories by means of exclusive
22

licenses.
the

349 U.S. at 324.

primary

defendant

Before trial, the case settled, with

agreeing

to

license

these

accessories to the plaintiffs at specified prices.
was then dismissed with prejudice.

standard

Id.

The case

Id.

Later, in 1949, plaintiffs brought claims under the same
antitrust laws, alleging that the defendants had merely used the
earlier settlement “to perpetuate their conspiracy and monopoly,”
as well as alleging that other parties had now joined in the
conspiracy, that the primary defendant was not honestly fulfilling
its obligations under the settlement agreement, and that the
primary defendant was monopolizing in new ways.

Id. at 324–25.

The plaintiffs sought damages for the period “beginning several
months after the dismissal of the 1942 complaint.”

Id.

The

defendants raised res judicata as a defense; the district court
agreed and dismissed the case, and the Third Circuit affirmed.
Id. at 325–26.
The Supreme Court reversed, finding that the two lawsuits
were not based on the same cause of action.

Id. at 327.

As Mr.

Taylor notes, the Court held that just because “both suits involved
essentially the same course of wrongful conduct is not decisive.”
Id. (internal quotation marks omitted).

The Court explained that

the “conduct presently complained of was all subsequent to the
[earlier] 1943 judgment” and that the new complaint also alleged
new types of monopolization not present in the first case.
23

Id. at

328.

Given such facts, the first judgment could not “be given the

effect of extinguishing claims which did not even then exist and
which could not possibly have been sued upon in the previous case.”
Id.
The present case is nothing like Lawlor.

It is not that Mr.

Taylor’s present lawsuit complains of the same “course” or type of
wrongful conduct as the 2010 action; rather, it complains of
precisely

the

uncontroversial

same
holding

conduct.
by

noting

Lawlor
that

articulated
acceptance

of

its
the

defendants’ rule “would in effect confer on [the defendants] a
partial immunity from civil liability for future violations.”
at 329.

Id.

In this case, Mr. Taylor has not alleged that NSRC engaged

in any new, unlawful action after dismissal of the 2010 Complaint,
so there is no concern that it would gain an unfair advantage.
In reality, the present case is just a disguised collateral
attack on the earlier case.

When Mrs. Taylor died during the

pendency of the first case, the final element of the wrongful death
cause of action was met.

The wrongful death cause of action then

accrued and became available, see Raftery, 230 S.E.2d at 416, even
though the underlying claimed tortious conduct remained the same.
As the Tenth Circuit explained in a related context:
[Res judicata] requires a plaintiff to join all claims
together that the plaintiff has against the defendant
whenever during the course of the litigation related
claims mature and are able to be maintained. Thus, even
if an additional claim does not mature until well after
24

the initial complaint
nevertheless must seek
additional claims as
additional claim can be

has been filed, the plaintiff
to amend the complaint to add
a compulsory claim when the
brought.

Stone v. Dep’t of Aviation, 453 F.3d 1271, 1278–79 (10th Cir.
2006); accord Hatch v. Boulder Town Council, 471 F.3d 1142, 1150
n.7 (10th Cir. 2006) (“[Plaintiff’s] lack of any obligation to
supplement his complaint with new and independent claims based on
facts

accruing

after

the

complaint

was

filed

should

be

distinguished from his duty to supplement with claims arising from
the

same

transaction

that

matured

(due

to

completion

of

an

administrative process, for example) after the filing of his
complaint.” (citing Stone, 453 F.3d at 1278–79)). 9

9

In other circuits, the general rule is that “an action need include
only the portions of the claim due at the time of commencing that action.”
18 Wright et al., supra, § 4409.
But courts that apply this rule
invariably justify it on the basis that plaintiffs have an opportunity
— and not an obligation — to amend or supplement a complaint. Id.; see,
e.g., Computer Assocs. Int’l, Inc. v. Altai, Inc., 126 F.3d 365, 370 (2d
Cir. 1997). The Fourth Circuit has not yet spoken on whether it also
would follow this rule. See Clodfelter v. Republic of Sudan, 720 F.3d
199, 210–11 (4th Cir. 2013) (“Ultimately, we do not decide whether the
relevant time period for a newly articulated claim to satisfy the
exception to res judicata is the point at which the complaint is filed
in the previous case — the plaintiff’s position — or the entire pendency
of that case — the district court’s view — because we conclude that res
judicata should not apply here for three independent reasons.”). But
even assuming, without concluding, that the Fourth Circuit would adopt
this general rule, the circumstance here is an exceptional one because
the justification for the rule would be undermined. In this case, Mr.
Taylor had not just the “opportunity” to amend his 2010 Complaint when
Mrs. Taylor died but an “obligation” to do so lest it be dismissed with
prejudice under Rule 25. Where amendment of the complaint is required
to avoid dismissal, plaintiffs have an obligation to bring all claims
available at the date of amendment. See, e.g., Salley v. Rendell, No.
Civ. A. 08-132, 2008 WL 1752246, at *8 (W.D. Pa. Apr. 14, 2008)
(dismissing complaint on res judicata grounds where plaintiff failed to
amend complaint as ordered by court).

25

Once Mr. Taylor filed the notice of death during the prior
action, he incurred not an option, but an obligation, to amend his
personal

injury

complaint

and

substitute

himself

as

personal

representative of what necessarily became a survivorship claim,
lest the case be dismissed with prejudice as required by Rule
25(a)(1). 10
district

Mr. Taylor missed the deadline, however, leaving the

court

no

alternative

under

Rule

25

but

to

order

a

dismissal of the personal injury and loss of consortium claims for
a failure to substitute under Rule 25, which is as preclusive as
a dismissal for failure to prosecute under Rule 41(b).

See 18A

Charles A. Wright et al., Federal Practice and Procedure § 4440 &
n.1 (2d ed. 2002).

Because the personal injury and loss of

consortium claims were dismissed with prejudice, any potential
survivorship or wrongful death claim, being based on the same
alleged wrong, became res judicata.
For these reasons, Mr. Taylor’s claims in the two lawsuits
are identical for res judicata purposes, and there is no saving
exception.

10

Rule 25(a)(1) provides in pertinent part:
If a party dies and the claim is not extinguished, the court
may order substitution of the proper party.
A motion for
substitution may be made by any party or by the decedent’s
successor or representative. If the motion is not made within
90 days after service of a statement noting the death, the
action by or against the decedent must be dismissed.

26

2.

Identity of the Parties or Their Privies

The third and final element of res judicata requires an
“identity of parties or their privies in the two suits.” Pueschel,
369 F.3d at 355 (citing Nash Cnty., 640 F.2d at 486).

The court

must analyze whether the interests of the parties in the first
case “are so identified with the interests” of the parties in this
case that “representation by one party is representation of the
other’s legal right.”

Weinberger v. Tucker, 510 F.3d 486, 491

(4th Cir. 2007); accord State v. Summers, 528 S.E.2d 17, 20 (N.C.
2000).

The identity of these interests is determined by North

Carolina law.

See Harnett, 800 F.2d at 1313.

In general terms, North Carolina determines privity between
parties based on their actual stake in the litigation:
Whether or not a person was a party to a prior suit
must be determined as a matter of substance and not of
mere form. The courts will look beyond the nominal party
whose name appears on the record as plaintiff and
consider the legal questions raised as they may affect
the real party or parties in interest.
King v. Grindstaff, 200 S.E.2d 799, 806 (N.C. 1973) (citations and
internal quotation marks omitted).
death,

the

“real

party

in

In an action for wrongful

interest”

is

not

the

personal

representative, who is simply the person permitted to bring the
cause of action, but “the beneficiary for whom the recovery is
sought.”

DiDonato, 358 S.E.2d at 491.

As noted earlier, the

beneficiaries under the Wrongful Death Act are the decedent’s heirs

27

as “provided in the Intestate Succession Act.”

N.C. Gen. Stat.

§ 28A-18-2(a); accord Cox v. Shalala, 112 F.3d 151, 155 n.3 (4th
Cir. 1997). 11

Mr. Taylor is a beneficiary under that Act, see N.C.

Gen. Stat. § 29-14, making him not only a representative party but
also a real party in interest.
There is no dispute that Mr. Taylor is in privity with himself
as to his loss of consortium claims he brought in both the prior
and present cases.

Those claims are personal to him, and he

remains the same plaintiff, in the same capacity, on each claim.
However, Mr. Taylor argues that there is no privity between
Mrs.

Taylor,

on

her

prior

personal

injury

action,

and

the

beneficiaries on a wrongful death action for the same injuries
because, he contends, the actions “are not brought to enforce the
same rights.”

(Doc. 23 at 14.)

For support he relies on a non-

precedential opinion from the North Carolina Court of Appeals,
which explained that an “action for wrongful death is an action
created by statute, and distinct from any underlying claims, even
the claim upon which the wrongfulness of the death depends.”
Udzinski v. Lovin, 583 S.E.2d 648, 652 (N.C. Ct. App. 2003)
(Elmore, J., writing only for himself), aff’d, 597 S.E.2d 703 (N.C.

11

By contrast, as noted earlier, any recovery on survivorship claims
is an asset of the estate. To the extent Mr. Taylor’s complaint seeks
survivorship damages, there would be privity for those claims because
they represent the same legal right Mrs. Taylor had before she died.
See N.C. Gen. Stat. § 28A-18-1(a).

28

2004). 12 He argues further that the rights remedied by the Wrongful
Death Act belong to the decedent’s heirs and not to the decedent.
Mr. Taylor’s arguments are unpersuasive.
Under North Carolina law, a wrongful death claim is derivative
of the decedent’s personal injury claim.

See Abney, 493 F.3d at

421 n.2 (“[I]n North Carolina, a claim for wrongful death ‘exists
if and only if the decedent could have maintained an action for
negligence

or

some

other

misconduct

(quoting Nelson, 541 F. Supp. at 818).

if

[]he

had

survived.’”

The Wrongful Death Act

provides, on its face, that a cause of action only arises where
the injured would have had a personal injury claim “if the injured
person had lived.”

N.C. Gen. Stat. § 28A-18-2(a).

The actions

taken by the decedent during her lifetime can totally bar her
heirs’ recovery.

See Edwards, 87 S.E. at 636–37. 13

Even though

they can recover a wider array of damages, the heirs have interests

12

Judge Elmore wrote the lead opinion, in which no other judge joined.
Judge Hunter wrote a separate opinion, concurring in the result only.
Judge Bryant dissented.
13

Edwards made its policy choice explicit. As the North Carolina Supreme
Court explained, there is no indication that the General Assembly, in
adopting the Wrongful Death Act, intended to permit double recovery,
subjecting the wrongdoer “to additional liability when he has made
compensation to the injured party in his lifetime in full adjustment of
the wrong done him.”
Id. at 637.
Had the court held otherwise, it
would have prejudiced the injured party herself, making it more difficult
for her to reach a resolution with the tortfeasor during her life. With
the sword of double-liability “hanging over him,” the court explained,
“[a] wrongdoer would be little inclined and hardly justified in offering
adequate adjustment.” Id.

29

that are legally dependent on those of the decedent.

As such,

decedents are in privity with their heirs on a wrongful death claim
because the decedent’s representation of her own rights during her
lifetime constitutes representation of her heirs’ rights.
This conclusion is consistent with the approach articulated
by the Second Restatement of Judgments, which follows a simple
rule that, whenever
a person has been injured by an act which later causes
his death and during his lifetime brought an action based
on that act . . . [i]f the action resulted in judgment
against the injured person, it precludes a wrongful
death action by his beneficiaries to the same extent
that the person himself would have been precluded from
bringing another action based on the act.
Restatement (Second) of Judgments § 46(1). 14 Under the Restatement,
privity of the decedent and her heirs on a wrongful death claim is
presumed based on their common relationship to the personal injury
judgment.
majority

See id. ch. 1.
of

jurisdictions.

It is also the rule followed in a
See

Smith,

275

S.W.3d

at

769–74

(collecting cases); see also, e.g., Thompson v. Wing, 637 N.E.2d
917, 923 (Ohio 1994) (applying the Restatement rule and “hold[ing]
that beneficiaries in a wrongful death action are in privity with
the decedent”).

14

The North Carolina Supreme Court has often relied on the Second
Restatement of Judgments for its res judicata analyses, see, e.g.,
Jonesboro United Methodist Church v. Mullins-Sherman Architects, LLP,
614 S.E.2d 268, 271 (N.C. 2005); Bockweg v. Anderson, 428 S.E.2d 157,
162 (N.C. 1993); Thomas M. McInnis & Associates, Inc. v. Hall, 349 S.E.2d
552, 559 (N.C. 1986), including the privity issue, see Settle By &
Through Sullivan v. Beasley, 308 S.E.2d 288, 291–92 (N.C. 1983).

30

3.

Summary

All three elements of res judicata are met.

Mr. Taylor

concedes that the 2010 lawsuit ended in a final judgment on the
merits, and the court has determined there is an identity of claims
and parties.

The claims of the present lawsuit are therefore

precluded by the earlier action.
This result admittedly appears harsh but, as the Supreme Court
has concluded, “‘[s]imple justice’ is achieved when a complex body
of law developed over a period of years is evenhandedly applied.”
Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1981).
The Court’s explanation applies here equally:
The predicament in which [Plaintiff] finds himself is of
his own making. . . . [The court] cannot be expected,
for his sole relief, to upset the general and wellestablished doctrine of res judicata, conceived in the
light of the maxim that the interest of the state
requires that there be an end to litigation — a maxim
which comports with common sense as well as public
policy.
And the mischief which would follow the
establishment of precedent for so disregarding this
salutary doctrine against prolonging strife would be
greater than the benefit which would result from
relieving some case of individual hardship.
Id. at 401–02 (quoting Reed v. Allen, 286 U.S. 191, 198–99 (1932)).
Mr. Taylor unfortunately missed the Rule 25 deadline he initiated
in

the

prior

case,

resulting

in

dismissal

of

the

prejudice, and he decided not to appeal that ruling.

case

with

As a result,

the dismissal is res judicata as to the claims of the present
lawsuit.

31

III. CONCLUSION
For these reasons,
IT IS THEREFORE ORDERED that NSRC’s motion for judgment on
the pleadings (Doc. 18) be GRANTED, and the case be DISMISSED WITH
PREJUDICE.

/s/
Thomas D. Schroeder
United States District Judge
February 6, 2015

32