The opinion of the court was delivered by: FORMAN
The following opinion deals with motions made in cases arising out of an explosion of materials of war at South Amboy, New Jersey, on May 19, 1950:
In Civil Action No. 477-52, Mary E. Ackerley, an administratrix, brought suit for the wrongful death of her New Jersey decedent against the government of Pakistan, against a number of corporations existing under the laws of states other than New Jersey and against the Central Railroad of New Jersey, a New Jersey corporation. Motions to dismiss for lack of jurisdiction in that there was no diversity of citizenship between the plaintiff and all the defendants, particularly between plaintiff and the said Central Railroad of New Jersey, were made by Seaboard Coal Dock Company, Incorporated, Reading Company, Isbrandtsen Company, Inc., and the Baltimore and Ohio Railroad Company. Plaintiff then moved for an order permitting her to amend the summons by dropping as a party defendant the Central Railroad Company of New Jersey and to serve and to file an amended complaint omitting from it any allegation with respect to that defendant.
It is not disputed that plaintiff in this action, a resident of New Jersey, has joined as a defendant a resident of the same state, namely, Central Railroad of New Jersey, and that if the said defendant, Central Railroad of New Jersey, remains in the case, this court will lack jurisdiction. Admitting this, plaintiff seeks to amend her complaint by dropping that defendant and by deleting all allegations as to it.
There is ample authority that such an amendment is permissible, if the party dismissed is not an indispensable party. The case of Dollar S.S. Lines v. Merz, 9 Cir., 1934, 68 F.2d 594, concerns an appeal from a judgment in a diversity of citizenship case wherein two of the defendants who were proper parties were from the plaintiff's state. In reversing a judgment for the plaintiff, the circuit court ordered a new trial, stating:
'Where, because of the joinder of proper, though not indispensable, parties as defendants, there is not merely on the record but in fact no such diversity of citizenship as to give jurisdiction, the District Court may permit a dismissal of such parties and thereby establish jurisdiction with retroactive effect. * * *' 68 F.2d at page 595.
There is other authority to the same effect as to the power of a district court to allow such an amendment dismissing a party not indispensable, States v. John F. Daly, Inc., D.C.E.D. Pa. 1951, 96 F.Supp. 479; see 3 Moore's Federal Practice, pp. 836 et seq.; 4 Federal Rules Service Commentary Sec. 15a241.
An indispensable party is defined as one having such an interest in the controversy that a final decree cannot be made without either affecting his interest or leaving the controversy in such a condition that a final determination may be wholly inconsistent with equity and good conscience, see Chidester v. City of Newark, 3 Cir., 1947, 162 F.2d 598, 600. Tort-feasors, such as Central Railroad of New Jersey is alleged to be, are not indispensable parties to an action against one of their number, Picking v. Pennsylvania Railroad Co., 3 Cir., 1945, 152 F.2d 753, certiorari denied 1947, 332 U.S. 776, 68 S. Ct. 38, 92 L. Ed. 361; Sauer v. Newhouse, D.C.N.J. 1938, 24 F.Supp. 911; see 3 Moore's Federal Practice, p. 2153. Thus, unless the fact that the statute of limitations has run is a bar, the plaintiff may be permitted to amend in the manner she has requested.
This action is based on the New Jersey Wrongful Death Act, N.J.R.S. 2A:31-1 et seq., N.J.S.A., which provides that,
'Every action brought under this chapter shall be commenced within 2 years after the death of the decedent, and not thereafter.' N.J.R.S. 2A:31-3, N.J.S.A.
'Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.'
This rule has been applied to amendments to complaints which were designed to give the court jurisdiction, Christensson v. Hogdal, D.C. Cir., 1952, 199 F.2d 402; Zellem v. Herring, D.C.W.D. Pa. 1951, 97 F.Supp. 103. Plaintiff's claim after making her proposed amendment would arise out of exactly the same occurrence as before, but the moving defendants contend that the plaintiff cannot take advantage of Rule 15(c) because of the special nature of the statute of limitations contained in the New Jersey Wrongful Death Act.
In support of this contention these defendants cite two cases which arose under the Tucker Act, 28 U.S.C. § 1346; the cases are Hammond-Knowlton v. United States, 2 Cir., 1941, 121 F.2d 192, certiorari denied 1941, 314 U.S. 694, 62 S. Ct. 410, 86 L. Ed. 555 and McMichael v. United States, D.C.N.D. Ala. 1945, 63 F.Supp. 598. Under the Tucker Act the United States has waived its sovereign immunity from suit in certain cases provided the suit is not for amounts in excess of $ 10,000. In each of these cases the plaintiff sued for a sum in excess of the statutory limit and after the statute of limitations had run sought to amend his complaint to assert the jurisdictional amount. In each case it was held that the amendment would not relate back under Rule 15(c), but each pointed out that the situation involved was the special one concerning the consent of the sovereign to be sued. Judge Frank wrote in the Hammond-Knowlton case,
'But in the supposed case, and here, the difficulty is, it would seem, more grave than a failure, in the ordinary case, to allege 'jurisdictional' facts; it is something apparently regarded by the Supreme Court as more serious, i.e., as a failure to comply with a condition of the sovereign's waiving its immunity from suit. * * *' 121 F.2d at page 202.
That these cases are to be confined to situations where a question of sovereign immunity is involved is clearly indicated by further comments from Judge Frank, who noted,
'If the suit were between private persons, it might well be regarded as having originally been brought against a defendant, sued in the wrong capacity, so as not to preclude an amendment, rectifying that error, filed after the statute had run. (Cases cited.) On that analogy, were this a case of first impression, we would incline to hold that appellee's amendment effectually related back.' 121 F.2d at pages 193, 194.
'True, it has been held that, where a plaintiff, in a suit in the federal courts, fails to allege diversity of citizenship- which is 'jurisdictional'- he may amend, after the statute has run, so as to supply the missing allegation if it correctly states the actual facts. * * *' 121 F.2d at page 202.
The moving defendants are not helped, therefore, by these cases.
There is no question but that this court must apply the New Jersey statute of limitations requiring that the action be brought within two years of the death of the decedent. Guaranty Trust Co. of N.Y. v. York, 1945, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079. The Supreme Court has held that in a diversity of citizenship case the statute of limitations of the state whose law governs the substantive questions at issue is not tolled until the plaintiff has taken the steps required by state law. Thus, although a plaintiff in such a suit files a complaint before the running of the state statute of limitations, he is barred by that statute if he does not also fulfill the state requirement that summons be served in order to toll the statute. Ragan v. Merchants Transfer & Warehouse Co., 1949, 337 U.S. 530, 69 S. Ct. 1233, 93 L. Ed. 1520; see also Meyers v. Slotkin, D.C.E.D.N.Y. 1952, 13 F.R.D. 191.
'We can draw no distinction in this case because local law brought the cause of action to an end after, rather than before, suit was started in the federal court. In both cases local law created the right which the federal court was asked to enforce. In both cases local law undertook to determine the life of the cause of action. We cannot give it longer life in the federal court than it would have have had in the state court without adding something to the cause of action. We may not do that consistently with Erie R. Co. v. Tompkins (304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188).'
Several years prior to its decision in the Ragan case, the Supreme Court denied certiorari in a case which held that the question of whether an amendment to a complaint will relate back is determined by the Federal Rules of Civil Procedure, Isaacks v. Jeffers, 10 Cir., 1944, 144 F.2d 26, certiorari denied, 1944, 323 U.S. 781, 65 S. Ct. 270, 89 L. Ed. 624. The situation was similar to the one involved here. An executor brought suit in the District Court of the United States, District of New Mexico, against the decedent's partner to compel an accounting. A New Mexico statute barred such an action if it was not brought within four ...