Federal wrongful death suits properly are amended to substitute the correct estate representative after the limitation period has run. The leading Virginia case was litigated by Avery T. “Sandy” Waterman, Jr., Esq. Zhu v. Rocco Farms, Inc., 1998 U.S. Dist. LEXIS 21781 (W.D. Va. 1998). A leading North Carolina case also was litigated by Mr. Waterman. Webb v. Stevens, No. 5:05-CV-33-BO(1) Decision and Order (Mar. 17, 2008), aff’d Order (E.D.N.C. May 22, 2008).

Zhu found that Federal procedural rules plainly provided for such amendment and relation back in wrongful death suits. “Under the federal rules, when the wrong party has brought a suit, the federal court may substitute the real party in interest in order to avoid forfeiture and injustice. See Levinson v. Denpree, 345 U.S. 648, 97 L.Ed. 1319, 73 S. Ct. 914 (1953); Fed. R. Civ. P. 15 and 17. The court may ‘continue the action, even though the state law under its statute of limitations might not allow relation back and would require dismissal.’ 3A James Wm. Moore et al., Moore’s Federal Practice §17.15 (2d ed. 1982). The statute of limitation does not pose an obstacle to the change in parties since Rule 17 states that ‘substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.’ Fed. R. Civ. P. 17(a); see also 6A Charles Alan Wright, et al. Federal Practice Procedure §1555 (2d ed. 1990).” Id. at *3-4. Indeed, lenient Fed. R. Civ. P. 17(a) prohibits dismissal “on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for . . . substitution of the real party in interest”. Id. at *4 (emphasis added). Zhu concluded: “The court believes that substituting personal representatives, absent a showing of improper or deceitful conduct by the plaintiff, constitutes just cause for abating an action until appointed.” Id. at *5.

Recently in Webb, a §1983 civil rights case for wrongful death, the court granted amendment and substitution of estate representatives with motions to dismiss over the point pending. Webb substituted an ancillary estate administrator qualified in the forum state of North Carolina instead of the estate administrator qualified in Virginia. See, Decision and Order at 4.

Earlier in McNamara v. Kerr-McGee Chem. Corp., 328 F.Supp. 1058 (E.D.N.C. 1971), this Court reached the same result. It did so despite holding incorrectly that North Carolina law must be applied to another wrongful death action under diversity jurisdiction, because North Carolina had adopted the relevant Federal rules. “The court is of the opinion that the North Carolina Supreme Court would hold that the enactment of Rule 15(c) changes the North Carolina law to conform to the majority state court rule and to the established rule in the Federal courts. The court is further of the opinion that the requirements of Rule 15(a) and (c) are met, and therefore, in the interest of justice, plaintiff’s motion to amend the complaint…is hereby granted. The court is also of the opinion that plaintiff’s motion to substitute a party plaintiff and to ratify the complaint must be granted [under North Carolina Rule 17(a)].” Id. at 1059. Subsequent to McNamara, consistent with Zhu, the Fourth Circuit held that Federal procedure governed in a diversity action, even if State procedure otherwise would command a different result. Davis v. Piper Aircraft Corp., 615 F.2d 606, 611 (4th Cir.), cert. denied 448 U.S. 911 (1980).

“Indeed, amendments to pleadings which substitute the real party in interest for a person who did not enjoy that capacity when he brought the claim is a more drastic change in the kind of claimant than an amendment which merely changes the capacity in which the same named individual is suing. Rule 17(a) expressly authorizes the former substitution of one party for another.” Burcl v. North Carolina Baptist Hosp., Inc., 306 N.C. 214, 230, 293 S.E.2d 85, 95 (1982). The Western District sua sponte has stayed a motion to dismiss to “permit Plaintiff or a similarly situated substitute … reasonable time to seek proper qualification as ancillary administrator or personal representative, to file a supplemental pleading establishing such qualification, and thereby to ratify the commencement of this action,” see, e.g., Janean v. Pitman Mfg. Co., 1991 U.S. Dist. LEXIS 19322 (W.D.N.C. 1991); and the Fourth Circuit even has raised the possibility of remand for that purpose. See, e.g., Messer v. American Gems, Inc., 612 F.2d 1367, 1374 (4th Cir. 1980).