United States District Court, D. Arizona
IN RE BARD IVC FILTERS PRODUCTS LIABILITY LITIGATION MDL No. 2641
C.R. Bard, Inc., et al., Defendants. This Order Relates to: Pamela Noterman, Plaintiff,
G. CAMPBELL, UNITED STATES DISTRICT JUDGE
C.R. Bard, Inc. and Bard Peripheral Vascular, Inc.
(“Bard”) filed a motion to dismiss Plaintiff
Pamela Noterman’s complaint. Doc. 1072. Plaintiff
failed to respond. During the March 31, 2016 case management
conference, the Court excused Plaintiff’s failure to
respond to Bard’s motion, and allowed Plaintiff leave
to file a motion to amend her complaint. Plaintiff filed her
motion, which Bard opposed. Docs. 1324; 1475. Plaintiff did
not file a reply. For the following reasons, the Court will
deny Plaintiff’s motion to amend and grant Bard’s
motion to dismiss.
November 5, 2009, Plaintiff Pamela Noterman was implanted
with a Bard inferior vena cava filter. Doc. 1324-2 at 16,
¶¶ 51-52. On February 16, 2011, Plaintiff presented
to a medical facility with chest pain, where she learned that
the filter had fractured. Id. at ¶ 53. The
filter was subsequently removed. Id. at ¶¶
54-55. Plaintiff died on May 6, 2014. Doc. 1475-1 at 2.
February 13, 2015, Plaintiff’s counsel filed this
lawsuit in Florida state court. Doc. 1324-2 at 2. Bard
removed the case to the Middle District of Florida, and the
U.S. Judicial Panel on Multidistrict Litigation transferred
the case to this Court for inclusion in this MDL.
See Docs. 1 (notice of removal), 10 (conditional
transfer order), in Noterman v. C.R. Bard, Inc., No.
2:15-cv-01714-DGC (M.D. Fla. July 1, 2015). Bard became aware
of Plaintiff’s death when it received her plaintiff
profile form on February 15, 2016. Doc. 1475 at 3. On March
11, 2016, Bard filed its motion to dismiss. See Doc.
1072. On April 4, 2016, Plaintiff’s counsel requested
leave to amend Plaintiff’s complaint to substitute her
husband and personal representative, John Noterman, for her.
See Doc. 1324.
Capacity to Sue.
a real party in interest has the capacity to bring a
lawsuit.’” In re Engle Cases, No.
3:09-cv-10000-J-32JBT, 2013 WL 8115442, at *2 (M.D. Fla. Jan.
22, 2013) (“In re Engle Cases I”),
aff’d, 767 F.3d 1082 (11th Cir. 2014) (quoting
Tennyson v. ASCAP, 477 F. App’x 608, 610 (11th
Cir. 2012) (unpublished) (citing Fed.R.Civ.P. 17(a),
(b)). “The capacity doctrine relates to
the issue of a party’s personal right to litigate in a
federal court.” Glickstein v. Sun Bank/Miami,
N.A., 922 F.2d 666, 670 (11th Cir. 1991), abrogated
on other grounds by Saxton v. ACF Indus., Inc., 254 F.3d
959 (11th Cir. 2001) (quotation marks and citation omitted).
“‘[A] party must have a legal existence as a
prerequisite to having the capacity to sue or be
sued.’” In re Engle Cases I, 2013 WL
8115442, at *2 (quoting Adelsberger v. United
States, 58 Fed.Cl. 616, 618 (Fed. Cl. 2003)).
“Indeed, a deceased individual cannot be a party to a
lawsuit.” Id. (citing Xtra Super Food Ctr.
v. Carmona, 516 So.2d 300, 301 (Fla. Dist. Ct. App.
1987)); see also Adelsberger, 58 Fed.Cl. at 618
(collecting cases). A lawsuit filed in the name of a deceased
individual is therefore a nullity, which presents a
jurisdictional defect that cannot be saved by substitution or
amendment. In re Engle Cases I, 2013 WL 8115442, at
In re Engle Cases I, a lawyer represented thousands
of individual plaintiffs in suits against a number of tobacco
companies. Id. at *1. Among those cases were 521
cases where the complaint had been filed after the plaintiff
had already died, but the complaint alleged personal injury
claims. Id. After repeated attempts to cull the
docket of cases with non-viable claims, the court issued a
questionnaire to be filled out under oath to determine which
cases had viable claims. Id. Upon reviewing the
questionnaires and learning of these cases, defendants moved
for dismissal of the 521 cases with predeceased plaintiffs.
Id. Plaintiffs sought leave to amend the complaints
to substitute parties and allege wrongful death claims under
Rules 15 and 17 of the Federal Rules of Civil Procedure,
arguing that the error was simply “a pleading
deficiency related to capacity of the plaintiff, rather than
a jurisdictional defect.” Id.
court found that the “521 personal injury actions not
only name parties without capacity, but allege personal
injury claims that abated when the smokers died.”
Id. at *3 (citing Fla. Stat. § 768.20
(“When a personal injury to the decedent results in
death, no action for the personal injury shall survive, and
any such action pending at the time of death shall
abate.”)). The court acknowledged
that under certain circumstances when the proper cause of
action is alleged but the plaintiff lacks capacity, or where
the plaintiff dies after the complaint has been filed,
substitution and amendment may be proper under Rules 17, 25,
or 15. See Fed. R. Civ. P. 15, 17, 25. However, such
circumstances do not exist here. In these cases, the
plaintiffs died before counsel filed suit. Further,
the complaints allege a personal injury cause of action that
was not viable in the first place. Regardless of the reasons
and authorization for these filings, 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.
Id. at *4 (emphasis in original). The court
dismissed the 521 cases without prejudice. Id. at
*6. The Eleventh Circuit affirmed the district court’s
order, but did so without deciding “whether a personal
injury claim brought on behalf of a deceased individual has
any legal effect, such that it can later be amended.”
In re Engle Cases, 767 F.3d 1082, 1108 (11th Cir.
2014) (“In re Engle Cases II”).
motion is supported by few facts. And the few facts provided
do not adequately explain why counsel filed a personal injury
complaint on behalf of a Plaintiff who had died nine months
before the complaint was filed. Plaintiff’s counsel
explains that “[i]n an abundance of caution to protect
plaintiffs’ [sic] Statute of Limitations, an action was
commended [sic] on or about February 13th, 2015, by the
filing of a Complaint.” Doc. 1324 at 4, ¶ 3.
Plaintiff’s counsel states that “[t]hereafter
Parker Waichman LLP was notified that plaintiff-decedent died
on May 6, 2014.” Id. at ¶ 4.
Plaintiff’s counsel does not explain how he filed a
complaint without first speaking with his client. Nor does he
explain why he had not communicated with his client during
the nine-month period between her death and the filing of the
complaint. Nor does he explain why he did not take immediate
action to correct the deficient pleading upon learning of her
death. Plaintiff’s counsel summarily concludes that
“Plaintiff should be allowed to amend the original
complaint in the above-captioned case herein to substitute
and add husband of plaintiff-decedent Pam W. Noterman, John
Noterman as Personal Representative of the Estate of Pam W.
Noterman, in place of and stead of Pamela Noterman.”
Id. at ¶ 5.
motion is supported by virtually no legal
authority. The solitary authority Plaintiff cites is
“Rule 15(2)” of the Federal Rules of Civil
Procedure. Doc. 1324 at 3-4, ¶ 3. Presumably, Plaintiff
is referencing Rule 15(a)(2), which allows a party to amend
her complaint with the opposing party’s consent or with
leave of the court. But Plaintiff cites no additional legal
authority to explain why the Court should grant Plaintiff
leave under Rule 15(a)(2) to file an amended complaint.
Plaintiff’s counsel makes no genuine attempt to counter
Bard’s legal arguments despite having had two
opportunities to do so. Nonetheless, the Court will address the
arguments that can be inferred from Plaintiff’s motion
to amend, which, as discussed above, is largely devoid of
the motion to amend only references Rule 15,
Plaintiff’s request primarily implicates Rule 17 of the
Federal Rules of Civil Procedure. A plaintiff’s request
to substitute the real party in interest invokes Rule
17(a)(1), which requires that an action be prosecuted in the
name of the real party in interest, and Rule 17(a)(3), which
permits substitution of the real party in interest in certain
circumstances. “[M]ost courts have interpreted . . .
Rule 17(a) as being applicable only when the plaintiff
brought the action [in the name of the wrong party] as a
result of an understandable mistake, because the
determination of the correct party to bring the action is
difficult.” In re Engle Cases II, 767 F.3d at
1109 (alteration in original; citations omitted); see
also Fed. R. Civ. P. 17 (Advisory Comm. Notes to 1966
Amend.). Substitution is not appropriate in this case.
Plaintiff’s counsel could have readily determined the
correct party to bring this action had Plaintiff’s
counsel investigated the basic facts underlying
Plaintiff’s claims prior to ...