DESTASIO et al v. A-C PRODUCT LIABILITY TRUST et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 11/6/15. 11/9/15 ENTERED AND COPIES MAILED, E-MAILED.(gs)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE: ASBESTOS PRODUCTS
LIABILITY LITIGATION (No. VI)
MDL DOCKET NO. 875
This Order Relates to:
E.D. Pa. Case Nos.
DESTASIO v. A-C PRODUCTS
LIABILITY TRUST, et al.
SCHINDLER v. FOSTER WHEELER
CO., et al.
DILBERT v. KEYSTONE SHIPPING
CO., et al.
NOV 0 9 2015
MICHAELE. KUNZ, Clerk
EDUARDO C. ROBRENO, J.
NOVEMBER 6, 2015
Presently before the Court are three "Motion[s] For Summary
Judgment of Shipowner Defendants Represented by Thompson Hine
LLP (Suit Commenced By Deceased Person Is a Nullity)"
31250 ECF. No. 99; ll-cv-33911 ECF. No. 38; and 11-cv-33924 ECF.
In these motions, the Defendants contend that the
three cases captioned above should be dismissed as nullities ab
initio because they were filed solely in the names of deceased
For the reasons set forth below, the Court will
grant the motions for summary judgment and dismiss the cases.
Each of the three cases was transferred from the United
States District Court for the Northern District of Ohio to the
United States District Court for the Eastern District of
Pennsylvania, where they became part of the MDL-875 MARDOC
As stated, each of the cases involves the same factual
peculiarity which allows the motions to be ruled upon as a
the Plaintiffs were deceased when the cases were filed
on their behalf.
Later, counsel filed amended complaints,
substituting personal representatives for the deceased
Destasio died on August 4, 1999 in Toms River, New Jersey
and a complaint was filed on his behalf in Detroit, Michigan on
December 14, 1999. On September 20, 2002, an amended complaint
was filed, substituting lawyers as the named plaintiffs and
administrators of Destasio's estate.
Schindler diedon April 20, 1988 in North Carolina and a
complaint was filed on his behalf in Detroit, Michigan on May 2,
1988. On October 2, 1990, an amended complaint was filed,
substituting a lawyer as the named plaintiff and administrator
of Schindler's estate.
Dilbert die.d on May 6, 1988 in New York and a complaint was
filed on his behalf on May 7, 1988. On February 2, 1989, an
amended complaint was filed, substituting a lawyer as the named
plaintiff and administrator of Dilbert's estate.
The complaints contend that the deceased were exposed to
asbestos while working aboard various ships and that they
developed asbestos-related diseases from the exposure.
result, the Plaintiffs asserted claims against the Defendants
for unseaworthiness under general maritime law and negligence
under the Jones Act.
Due to the allegations that the deceased were exposed to
asbestos aboard various ships, both the locality and connection
tests are met and maritime law applies to the substantive and
procedural issues raised in these cases.
See Conner v. Alfa
Laval, Inc., 799 F. Supp. 2d 455 (E.D. Pa. 2011).
Summary judgment is appropriate if there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a).
motion for summary judgment will not be defeated by 'the mere
existence' of some disputed facts, but will be denied when there
is a genuine issue of material fact."
Am. Eagle Outfitters v.
Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248
A fact is "material" if proof of its existence or non-existence
might affect the outcome of the litigation, and a dispute is
"genuine" if "the evidence is such that a. reasonable jury could
return a verdict for the nonmoving party."
Anderson, 477 U.S.
In undertaking this analysis, the court views the facts in
the light most favorable to the non-moving party.
all reasonable inferences in the nonmoving party's favor, there
is a genuine issue of material fact if a reasonable jury could
find for the nonmoving party."
Pignataro v. Port Auth. of N.Y.
N.J., 593 F.3d 265, 268 (3d Cir. 2010)
(citing Reliance Ins.
Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)).
moving party bears the initial burden of showing the absence of
a genuine issue of material fact, meeting this obligation shifts
the burden to the non-moving party who must "set forth specific
facts showing that there is a genuine issue for trial."
Anderson, 477 U.S. at 250.
As mentioned, in each of these cases the only plaintiffs
named in the original complaints died before the complaints were
filed on their behalf.
The Defendants contend that because a
deceased individual has no legal existence, a suit brought in
his name is a nullity.
See Adelsberger v. United States, 58
Fed. Cl. 616, 618 (2003)
(providing that because "a party must
have a legal existence as a prerequisite to having the capacity
to sue or be sued" and a "person who dies prior to filing suit
is not a legal entity," an action filed solely on behalf of the
deceased "is a nullity").
Moreover, the Defendants assert that because such an action
is null ab initio and does not exist in the eyes of the court,
the complaint may not be amended.
See In re Engle Cases, No.
3:09-CV-10000-J-32, 2013 WL 8115442, at *4
2013) aff 'd, 767 F.3d 1082 (11th Cir. 2014)
(M.D. Fla. Jan. 22,
(providing that "a
personal injury suit cannot be commenced by a dead person and
thus, these claims are nullities that must be dismissed. As
such, no substitution or amendment can save these claims");
Banakus v. United Aircraft Corp., 290 F. Supp. 259, 260
(providing that because an action brought by a
deceased individual is "void at its inception, there were no
claims capable of amendment").
On the other hand, the Plaintiffs assert that pursuant to
Federal Rule of Civil Procedure 17(a) (3),
"the court may not
dismiss 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,
join, or be substituted into the action."
Fed. R. Civ. P.
In these three cases, the Plaintiffs contend that
since the original complaints have been amended and personal
representatives substituted as the plaintiffs and real parties
in interest, the cases may not now be dismissed.
v. United States, 368 F.3d 1271, 1277-78 (10th Cir. 2004)
(holding that despite a deceased plaintiff's lack of capacity, a
wrongful death complaint brought in his name could be amended
and a personal representative substituted as plaintiff under
Rule 17); Hatcher v. Labrum, No. CIV. A. 85-4924, 1986 WL 6862,
(E.D. Pa. June 18, 1986)
(relying on Rule 17 to allow an
administrator to be substituted for the plaintiff who died nine
months before the complaint was filed) .
The Plaintiffs also argue that even if the deceased lacked
capacity to sue under Federal Rule of Civil Procedure 17(b),
that fact is no bar to bringing the suit.
In Esposito, the
Tenth Circuit Court of Appeals noted that "nothing in Rule 17(a)
requires that the original plaintiff have capacity to sue."
The Plaintiffs explain that at the time the amended
complaints were filed, they superseded the original complaints
and related back to the original filing dates.
P. 17 (a) (3)
See Fed. R. Civ.
(providing that "[a] fter ratification, joinder, or
substitution, the action proceeds as if it had been originally
commenced by the real party in interest").
As a result, they
claim that any defects in the original complaints were cured by
the amended complaints and that the Defendants may not now
challenge an alleged deficiency found only in the original
See Snyder v. Pascack Valley Hosp., 303 F.3d 271,
276 (3d Cir. 2002)
(recounting that "[a]n amended complaint
supersedes the original version in providing the blueprint for
the future course of a lawsuit"); 6 Charles Alan Wright & Arthur
R. Miller, Fed. Prac. & Proc. Civ.
1476 (3d ed. 1998)
(providing that "[o]nce an amended pleading is interposed, the
original pleading no longer performs any function in the case
and any subsequent motion made by an opposing party should be
directed at the amended pleading").
In the case of Dilbert, the
Plaintiffs further assert that the relevant defendant, United
Fruit Company, was not even added as a party until the amended
complaint was filed.
Thus, they contend that United Fruit was
never sued by a deceased individual.
The Court agrees with the Defendants that the threshold
issue is one of legal existence rather than capacity to sue.
The problem with Plaintiffs' arguments regarding Rule 17 and the
two cases cited by them is that they focus on capacity to sue
rather than the threshold question of legal existence. 1
v. Corp. of Lloyd's, 796 F. Supp. 103, 110 (S.D.N.Y. 1992)
aff'd, 996 F.2d 1353 (2d Cir. 1993)
(concluding that "[c]apacity
to be sued and legal existence are separate and distinct
Both capacity to be sued and legal existence are
prerequisites to the suability of an entity, but Rule 17(b)
speaks only to capacity to sue or be sued") ; see also Garlock
Sealing Tech., LLC v. Pittman, No. 2008-IA-01572-SCT, 2010 WL
4009151, at *5 (Miss. Oct. 14, 2010) . (providing that pursuant to
Mississippi Rule 17, which mirrors the federal rule,
is not really the issue in a case like the one before us [where
the plaintiff died before the complaint was filed].
Moreover, Esposito, cited by the Plaintiffs in support of their
Rule 17 argument, was brought as a wrongful death case rather
than a personal injury case.
368 F.3d at 1272. The court in
Esposito found this fact important as does this Court in
distinguishing it from the present personal injury cases. Id. at
sue' relates to a party's right to litigate."
rather, is a distinct but closely related concept: legal
existence. Legal existence is a basic threshold; it serves as a
prerequisite for having capacity to sue")
The Court finds that these suits are nullities ab
initio due to the deceased Plaintiffs' lack of legal existence,
thus, Rule 17 never becomes relevant.
As mentioned earlier,
Rule 17 only contemplates the capacity to sue, not the prerequisite of legal existence.
Roby, 796 F. Supp. at 110.
Analyzing the wording of the rule reinforces its
Rule 17 describes dismissing an "action,"
however, here, there are no legitimate actions to dismiss.
R. Civ. P. 17(a) (3); Adelsberger, 58 Fed. Cl. at 618 (providing
that "[t]he question presented is whether an action can be
initiated in the name of a deceased person. We think the answer
Moreover, in determining capacity to sue,
Rule 17 provides that the law of the individual's domicile
controls. Fed. R. Civ. P. 17(b).
However, it is not even clear
whether a deceased person has a domicile for this purpose in
that the deceased does not "live" anywhere and cannot regard
anywhere as home.
See Adelsberger, 58 Fed. Cl. at 618 n.2
(questioning whether the dead have domiciles).
Rule 17 only
becomes relevant if the plaintiff has surmounted the prerequisite of presently existing.
See Garlock Sealing Tech.,
2010 WL 4009151, at *5 (providing that Rule 17 "takes for
granted or presumes that a valid 'action' exists" and that no
"'action' exists where the original complaint is filed by a dead
Because the original complaints in these cases do not exist
in a legal sense, they may not be amended nor may plaintiffs be
Banakus, 290 F. Supp. at 260 (providing that an
action filed by a deceased person "must be treated as a nullity
and it cannot be given life by substituting parties and amending
Thus, we disagree with the Plaintiffs that
their amended complaints, filed before the Defendants raised
this issue, cured the defect.
In that there are no valid
complaints to amend - by either adding claims or parties - the
amended complaints are as null as the originals.
The only way
that the Plaintiffs could have rectified the issue was to file
new suits within the statute of limitations period.
there is nothing to which the amended complaints can relate
The original complaints do not legally exist.
See In re
Engle Cases, 2013 WL 8115442, at *4 (providing that suits
brought by the deceased are nullities and "no substitution or
amendment can save these claims"); Garlock Sealing Tech., 2010
WL 4009151, at *6 (providing that "we find further that an
amended complaint cannot relate back to an original complaint
that was a nullity").
The Court finds that since the deceased Plaintiffs had no
legal existence when their complaints were filed, their suits
are nullities with no legal effect.
In re Engle Cases, 2013 WL
8115442, at *1; Adelsberger, 58 Fed. Cl. at 618; Bankakus, 290
F. Supp. at 259-60.
Moreover, the majority of federal and state
courts that have considered the issue agree that an action filed
in the name of a pre-deceased plaintiff is not viable. See e.g.
In re Engle Cases, 767 F.3d 1082 (11th Cir. 2014)
district court's order to dismiss over 500 cases that were filed
on behalf of purportedly living - but actually deceased smokers); In re Aredia & Zometa Prods. Liab. Litig., No. 3-06MD-1760, 2012 WL 2015791, at * 1-2 (M.D. Tenn. June 5, 2012)
(applying Connecticut law)
(dismissing the action for lack of
jurisdiction where the plaintiff died one day before the
complaint was filed); Campbell v. Travelers Ins., No. 06-9068,
2008 WL 145048, at *1 (E.D. La. Jan. 14, 2008)
"[t]he deceased plaintiffs [were] not proper party plaintiffs,"
and that Rule 25 is not applicable when the "deceased party predeceased the initiation of the litigation")
(citing Mizukami v.
Buras, 419 F.2d 1319, 1320 (5th Cir. 1969)); Adelsberger, 58
Fed. Cl. at 618; Banakus, 290 F. Supp. at 259-260; Pasos v.
Eastern S.S. Co., 9 F.R.D. 279, 281-82
(D. Del. 1949)
(concluding that a person who dies prior to filing suit is not a
legal entity); Garlock Sealing Tech., 2010 WL 4009151, at *3-6;
McCormick v. Illinois Cent. R.R. Co., No. W2008-00902-COA-R9-CV,
2009 WL 13 92575, at *l, 4 (Tenn. Ct. App. May 19, 2009)
that a suit commenced in the name of a deceased person is a
nullity that may not be avoided by substitution); Williams v.
Travelers Prop. & Cas. of Arn., No. CV044003632S, 2007 WL
1299245, at *l (Conn. Super. Ct. Apr. 13, 2007)
(holding that a
plaintiff who died before the complaint was filed had no legal
existence and refusing to substitute the plaintiff); Levering v.
Riverside Methodist Hosp., 2 Ohio App. 3d 157, 159, 441 N.E.2d
290, 291 (1981)
(providing that "the complaint in this case was
a nullity because there was no party-plaintiff, the named
plaintiff having been deceased prior to the filing of the
For the reasons provided above, this Court concludes, as
have other courts before it, that the complaints filed on behalf
of the three deceased Plaintiffs are null ab initio and cannot
be amended to rectify the fatal flaw.
As a result, the Court
grants summary judgment in favor of the Defendants and dismisses
An appropriate Order follows.
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