673 F. App'x 591
8th Cir.
2016

Selena CAPERS, also known as Jane Doe, No. 49 Plaintiff-Appellant v. NATIONAL RAILROAD PASSENGER CORPORATION, a Congressionally Incorporated Corporation, also known as Amtrak Defendant-Appellee

No. 16-1171

United States Court of Appeals, Eighth Circuit.

Submitted: September 21, 2016. Filed: December 23, 2016

854 F.3d 591

The parties agree that because Cortez-Hernandez did not raise this issue in the lower court, this argument is subject to plain error review. Id. at 794.

There is insufficient evidence in the record to demonstrate that the district court failed to conduct de novo review. The district court had a transcript of the plea hearing more than two weeks before formally accepting Cortez-Hernandez‘s guilty plea. In its order adopting the magistrate judge‘s report and recommendation, the district court stated that it engaged in “careful and independent review” before finding that “the defendant‘s plea was knowledgeable and voluntary” and that there was a factual basis for the plea. See Edmundson v. Turner, 954 F.2d 510, 513-14 (8th Cir. 1992) (district court‘s explicit statement that it reviewed report and recommendation de novo is not required where the district court‘s order otherwise indicates that it engaged in an independent review of the record). In arguing that the district court failed to conduct a de novo review, Cortez-Hernandez points only to the district court‘s failure to identify the errors she claims occurred during the plea hearing. But, even if we assume procedural error, Cortez-Hernandez has not articulated any basis for the conclusion that she would not have pleaded guilty but for this error. Because she has not shown that any failure to conduct de novo review “affected the outcome of the district court proceedings,” Olano, 507 U.S. at 734, 113 S.Ct. 1770, she has not met her burden under plain error review.

III. Conclusion

We deny the government‘s motion to dismiss Cortez-Hernandez‘s appeal and affirm Cortez-Hernandez‘s conviction.

John Paul Byrd, Joseph D. Gates, Paul Byrd Law Firm, PLLC, Little Rock, AR, Stuart S. Mermelstein, Herman Law, Boca Raton, FL, for Plaintiff-Appellant

Kristopher B. Knox, Tory H. Lewis, Mary K. McCarroll, Robert S. Shafer, Scott Harper Tucker, Friday & Eldredge, Little Rock, AR, for Defendant-Appellee

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.

PER CURIAM.

Selena Capers appeals the dismissal of her common carrier strict liability claim against the National Railroad Passenger Corporation (“Amtrak“). For the reasons discussed below, we affirm the dismissal on alternative grounds.

This case derives from Capers‘s allegation that she was sexually assaulted by an Amtrak porter while aboard a Texas Eagle-line train. Nearly three years after the incident, Capers brought a two-count complaint against Amtrak under the pseudonym “Jane Doe No. 49” for common carrier strict liability and negligence, but she neglected to seek leave from the district court1 to proceed anonymously. In response to Amtrak‘s motion to dismiss, but after the applicable three-year statute of limitations had expired, Capers attempted to cure this defect by filing an amended complaint that reflected her true identity. The district court allowed this new pleading to relate back under Federal Rule of Civil Procedure 15(c), thus preserving her claims. However, the court simultaneously granted dismissal as to the common carrier strict liability count for failure to state a claim, concluding that Arkansas law no longer recognized this cause of action and, alternatively, that the state‘s one-year statute of limitations for assault barred recovery based on respondeat superior doctrine. After conducting discovery, the district court also granted Amtrak‘s motion for summary judgment as to the remaining negligence count.

On appeal, Capers contests only the dismissal of her common carrier strict liability claim, arguing that this cause of action remains viable under Arkansas law. Meanwhile, Amtrak insists that the district court properly concluded that Arkansas abandoned this cause of action. Alternatively, Amtrak maintains that Capers‘s claim was time barred based on her failure to comply with Rule 10(a)‘s requirement that a complaint identify all parties before the expiration of the three-year general-tort limitations period.2 See Ark. Code Ann. § 16-56-105(3). We affirm the dismissal of Capers‘s common carrier strict liability claim on this alternative ground. See McAdams v. McCord, 584 F.3d 1111, 1113-14 (8th Cir. 2009) (citation omitted).

As an initial matter, we note that, while Capers argues that her pseudonymous complaint initiated a valid action as to Jane Doe No. 49, she nowhere suggests that it also commenced a valid action as to herself. Accordingly, we decline to consider any other potential implications of her failure to comply with the Rule 10(a) mandate to name all parties or the alternate requirement to request permission to proceed under a pseudonym. See Fed. R. Civ. P. 10(a) (“[T]he title of the complaint must name all the parties....“); W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th Cir. 2001) (“Proceeding under a pseudonym in federal courts is, by all accounts, an unusual procedure.... Nevertheless, in certain limited circumstances, courts do allow a party to proceed under a pseudonym.... When a party wishes to file a case anonymously or under a pseudonym, it must, first petition the district court for permission to do so.“) (internal citations and quotations omitted). Instead, we focus on the two theories Capers advances to preserve her claim: (1) that her amended complaint relates back to the original filing under Rule 15; and (2) that Rule 17 allows us to substitute her for “Jane Doe No. 49” as if she had brought the action in her own name. We review both issues de novo, as they concern legal interpretations of the rules of civil procedure. Perkins v. U.S. W. Commc‘ns, 138 F.3d 336, 338 (8th Cir. 1998).

Capers primarily looks to Federal Rule of Civil Procedure 15 as a means of preserving her common carrier strict liability claim. She first asserts entitlement to amend her pseudonymous complaint under Rule 15(a)(1)(B), which allows plaintiffs to amend pleadings once as a matter of course within twenty-one days of the filing of an answer or a 12(b) motion. See Fed. R. Civ. P. 15(a)(1)(B). As her amendment came after the three-year statute of limitations had expired, Capers further relies on relation back under Rule 15(c)(1)(C) to save her claim. However, Arkansas Rule 15 applies in this case and precludes the relation back of Capers‘s amended pleading.

The parties agree that Arkansas law governs all substantive issues related to this action—and rightly so. See Aliotta v. Nat‘l R.R. Passenger Corp., 315 F.3d 756, 759 (7th Cir. 2003) (explaining that the Erie doctrine “extends beyond diversity actions to cover federal question jurisdiction cases in which there is a state law cause of action“). Although we generally apply federal law on “procedural” matters like amendability, see Jones ex rel Jones v. Corr. Med. Servs., Inc., 401 F.3d 950, 952 (8th Cir. 2005), we defer to state law as to considerations that form “an integral part of the state statute of limitations,” at least “in the absence of a federal rule directly on point,” Walker v. Armco Steel Corp., 446 U.S. 740, 752 (1980), 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980). Applying this analysis to the case at hand, we first note that Federal Rules are not sufficiently broad to control Capers‘s relation-back argument. Federal Rule 15(c) indicates no intention of allowing for the relation back of pseudonymous complaints, and Capers cites no federal precedent applying Rule 15(c) to such pleadings, even in the absence of Erie concerns. Second, at least in the present context, relation-back doctrine constitutes an integral part of the state statute of limitations, as the Arkansas Supreme Court repeatedly has held that, “where an action is brought in the name of a non-existing plaintiff, [a Rule 15] amendment of complaint by substituting the proper party to the action as plaintiff will be regarded as the institution of a new action as regards the statute of limitations.” Bryant v. Hendrix, 375 Ark. 200, 289 S.W.3d 402, 406 (2008) (quoting Ark-Homa Foods, Inc. v. Ward, 251 Ark. 662, 473 S.W.2d 910, 911 (1971)). Based on this precedent and the absence of a “direct collision” with the Federal Rules, see Walker, 446 U.S. at 749, we find that Arkansas Rule 15 controls, thus precluding relation back. Alternatively, even if the direct-conflict analysis of Hanna v. Plumer, 380 U.S. 460 (1965), 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), required us to apply Federal Rule 15, there would be no valid action to which Capers‘s amended complaint could relate back. Under Federal Rule 10(a), she failed to initiate a valid action at least until she sought to amend her complaint, by which time the statute of limitations had run, as she was not properly before the court until then, if at all.34 See Gibbs, 886 F.2d at 1245 (“Absent permission by the district court to proceed anonymously ... a case has not been commenced with respect to [unnamed parties].“). Thus, even under federal law, Capers‘s Rule 15 argument fails.

As an alternative basis for preserving her claim, Capers suggests that Federal Rule 17(a) “allows the real parties in interest to be substituted in the action, which [like Rule 15] relates back to the original complaint.” This argument is based on a misapprehension of the term “real party in interest” and cannot preserve her claim.

In relevant part, Federal Rule 17(a)(3) prohibits courts from “dismiss[ing] 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. 17(a)(3). Capers cites a lone district court order from EW v. N.Y. Blood Center that extends Rule 17 to pseudonymous complaints. 213 F.R.D. 108, 109-10 (E.D.N.Y. 2003) (dismissing defendant‘s jurisdictional argument as “obviously wrong” based on Rule 17(a) substitution). Beyond the fact that EW involved no statute of limitations defense, we disagree with Capers‘s understanding of “real party in interest.” This misinterpretation becomes clear after considering the meaning of “nominal party“:

One suing or defending for the use and benefit of another. A person who is the plaintiff in an action, but who is not the real party in interest. One joined as a party to comply with a technical rule of practice, not because he has an interest in the subject matter of the action.

Nominal Party, Ballentine‘s Law Dictionary (3d ed. 2010); see also Party (2), Black‘s Law Dictionary (10th ed. 2014) (“A party to an action who has no control over it and no financial interest in its outcome....“). With this definition in mind, it is clear that Rule 17(a) operates to allow for the “ratification, joinder, or substitution” of a real party in cases filed under the name of a nominal party. Indeed, a brief glance at the 1966 Amendment to Rule 17(a) reveals that, “[i]n its origin, the rule concerning the real party in interest ... was designed to allow an assignee to sue in his own name.” Fed. R. Civ. P. 17(a) advisory committee‘s note to 1966 amendment (cautioning that this provision “should not be misunderstood or distorted. It is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made.“).5

Here, “Jane Doe No. 49” is not a separate person from Selena Capers and thus cannot be deemed a nominal party. Rather, this pseudonym was a legal fiction employed to protect her privacy. Thus, substitution cannot operate to save her claim any more than relation-back doctrine. Further, even if Rule 17(a) did apply, Capers‘s position ultimately fails for the same reason as her Rule 15(c) argument; there was no valid action in which to substitute her as a party. See Gibbs, 886 F.2d at 1245.

Accordingly, because Capers filed her amended complaint after the three-year statute of limitations expired and because neither Rule 15(c) nor Rule 17(a) apply to preserve her common carrier strict liability claim, we affirm dismissal.6

PER CURIAM.

Notes

1
The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.
2
Amtrak now concedes that the one-year statute of limitations for assault does not apply to common carrier strict liability claims. See St. Louis, Iron Mountain & S. Ry. Co. v. Mynott, 83 Ark. 6, 102 S.W. 380, 381 (1907).
3
In its brief in support of the motion to dismiss, Amtrak invoked jurisdictional defenses under 12(b)(1) and 12(b)(2) for lack of subject matter jurisdiction and personal jurisdiction, respectively. On appeal, however, Amtrak omits reference to these two subsections of Rule 12, instead arguing more broadly that, when a plaintiff fails to seek leave to proceed pseudonymously, “no action is commenced, and the district court lacks jurisdiction over the unnamed plaintiff.” See Nat‘l Commodity & Barter Ass‘n v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989) (per curiam). Given this revision, we read Amtrak‘s alternative basis for affirming as a statute of limitations argument for dismissal under 12(b)(6), and accordingly, we construe “jurisdiction” to mean that Capers was not “before the court” for limitations purposes. Thus, we are not compelled to weigh in on the jurisdictional implications of Rule 10(a) because, to the extent that Capers‘s failure to seek leave to proceed anonymously impacted the district court‘s jurisdiction, it did not affect subject matter jurisdiction, and Amtrak waived any personal jurisdiction defense by not renewing it on appeal. See Fed. R. Civ. P. 12(h); Ruminer v. Gen. Motors Corp., 483 F.3d 561, 563 n.2 (8th Cir. 2007).
4
We look to federal law for this alternative analysis because Arkansas has not ruled on the consequences of a plaintiff‘s failure to seek leave to proceed pseudonymously, and the state supreme court would likely follow federal precedent were this issue before it—especially given that Arkansas Rule 10 tracks its federal counterpart. See Doe v. Weiss, 2010 Ark. 150, at 3, 2010 WL 1253216 (2010) (affirming the denial of a request to proceed anonymously under Rule 10, as well as the grant of a related 12(b)(6) motion to dismiss, based exclusively on federal case law).
5
Our analysis of Capers‘s substitution argument follows federal law, as “Arkansas‘s Rule 17 is virtually identical to the federal rule.” St. Paul Mercury Ins. Co. v. Circuit Court of Craighead Cty., 348 Ark. 197, 73 S.W.3d 584, 593 (2002) (Imber, J., concurring) (denying substitution based on the lack of an “understandable mistake” in the initial pleading); see also Ark. R. Civ. P. 17 reporter‘s note 1 (“[Arkansas] Rule 17 is a slightly modified version of FRCP 17.“). Further, there is no Arkansas precedent indicating a different meaning of “real party in interest” under the state version of Rule 17, unlike the Rule 15 inquiry above.
6
Given that Capers‘s common carrier strict liability claim was time barred, we need not consider whether this cause of action remains viable under Arkansas law.
Read the detailed case summary