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Wrongful-death suit owed one last chance after dismissal

Scott Lauck//June 18, 2020//

Wrongful-death suit owed one last chance after dismissal

Scott Lauck//June 18, 2020//

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A split panel of the Missouri Court of Appeals Western District on June 9 allowed a wrongful-death case to proceed against a railroad, despite a lengthy delay in the plaintiff’s meeting a key requirement to represent her late husband.

Judge Mark D. Pfeiffer, writing for the majority, said that at the time the Jackson County Circuit Court dismissed Carolyn Holmes’ suit, a probate judge already had named her as personal representative of Robert Holmes’ estate. Pfeiffer, joined by Judge Gary Witt, said Holmes should have been allowed to amend her pleadings to account for that fact, which the trial judge already knew.

“And, though the circuit court may have had some justified frustration with Ms. Holmes’s counsel and his dilatory shortcomings related to the rules of procedure and the circuit court’s previous scheduling orders leading up to its dismissal ruling, the circuit court also chose to ignore rules of procedure and case precedent in maneuvering its way to punishing the litigant for the sins of the attorney,” Pfeiffer wrote.

But Judge Alok Ahuja dissented, saying Jackson County Circuit Judge Bryan Round already had given Holmes’ attorney multiple chances to seek his client’s appointment, which ultimately didn’t occur until 11 months after the suit was filed.

Ahuja wrote that he understood that affirming the dismissal would have barred Holmes’ claim and said he was “skeptical that I would have entered the same orders as the circuit court, if I were sitting in its place.”

“But the issue on appeal is only whether the circuit court abused its broad discretion to grant or deny leave to amend, or to excuse noncompliance with the deadlines the court had imposed,” Ahuja wrote.  “In the circumstances of this case, it cannot fairly be said that no reasonable jurist would have entered the same orders as the circuit court.”

Robert Holmes, a former employee of Union Pacific Railroad, died in 2015. His widow filed a wrongful-death claim under the Federal Employers’ Liability Act nearly three years later, alleging her husband suffered work-related toxic exposure that led to his death from lung cancer.

Although the lawsuit listed Carolyn Holmes as her husband’s personal representative, no court at the time had issued letters of administration allowing her to serve in that capacity. Union Pacific filed a motion to dismiss the case in late 2018.

After the court granted several extensions, Holmes’ attorney, Shawn Sassaman of Marc J. Bern & Partners in Conshohocken, Pennsylvania, obtained those letters from a probate court in Clay County in April 2019. But by then, Judge Round’s final 30-day extension had expired.

Sassaman declined to address the Western District’s criticisms, saying it was his firm’s policy not to comment on active litigation.

The Western District majority’s ruling hinged on Court Rule 67.06, which says that courts “shall freely grant leave to amend” after dismissing a deficient pleading. Although Holmes had multiple chances to fix her pleadings prior to Round’s order, the dismissal itself provided one last shot.

“There can be threats to dismiss, motions to dismiss, whatever it might be,” said Kansas City-based appellate attorney Jonathan Sternberg, who argued Holmes’ case on appeal. “But until the trial court dismisses an action for some deficiency in the pleading, that rule doesn’t activate.”

Daniel Hassing of Lamson Dugan & Murray in Omaha, Nebraska, an attorney for the railroad, declined to comment on the ruling.

It’s not clear what will happen next in the litigation. Ahuja noted that Missouri law requires a personal appointment to be made within a year of the decedent’s death. Carolyn Holmes’ appointment missed that deadline by nearly three years, and Round’s dismissal order said her claim was time-barred. The Western District’s opinion, however, didn’t resolve the issue.

The case is Holmes v. Union Pacific Railroad Co., WD82867.

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