MEMORANDUM OPINION AND ORDER
This is a damages action that follows a prior personal injury action arising from the same alleged asbestos exposure but was dismissed for failure to timely substitute a personal representative upon the death of Plaintiffs decedent. Defendant Norfolk Southern Railway Company (“NSRC”) moves for judgment on the pleadings, arguing that the dismissal of the prior action under Rule 25 of the Federal Rules of Civil Procedure acts as res judica-ta against the present claims it contends arise out of the same transactions and core of operative facts. (Doc. 18.) For the reasons set forth below, the motion will be granted and the case will be dismissed.
The background of this case unfolded over many years and concerns wrongs from asbestos exposure allegedly committed half a century ago. It spawned two lawsuits, each of which was originally filed in a North Carolina trial court, removed to federal district court, and transferred by the Judicial Panel for Multidistrict Litigation (“JPML”) to the Eastern District of Pennsylvania, In re Asbestos Products Liability Litigation, MDL No. 875. The first of these cases, filed in 2010, was ultimately dismissed, and the second is the present lawsuit.
A. The 2010 Lawsuit
On October 28, 2010, Mr. Richard Eric Taylor and Mrs. Diane Grubb Taylor, husband and wife, filed a complaint in a North Carolina trial court against Defendant NSRC. (Doc. 18-1, “2010 Complaint”) Mrs. Taylor brought claims against NSRC for her personal injuries due to asbestos exposure, while Mr. Taylor brought a derivative claim for loss of consortium.
On April 24, 2011, Mrs. Taylor died, and on May 5, 2011, Mr. Taylor was appointed executor of her estate.
Mr. Taylor’s motion to substitute was untimely. Under Federal Rule of Civil Procedure 25(a)(1), when a party dies, a substitution must be made “-within 90 days after service of a statement noting the death.” The motion to substitute was-therefore due on August 24, 2011, making Mr. Taylor’s October 27 filing over a month late. See Order, Taylor v. Norfolk S. Ry. Co., No. 2:11-cv-60075 (E.D.Pa. May 29, 2012), ECF No. 44. Finding that the motion to substitute was inexcusably tardy, and given the failure to file a timely motion for an extension of time, the district court dismissed the entire case. See id. Mr. Taylor moved the court to reconsider the dismissal, but the court denied the motion over a year later. Order, Taylor v. Norfolk S. Ry. Co., No. 2:11-cv-60075 (E.D.Pa. October 4, 2013), ECF No. 47. Mr. Taylor did not appeal these rulings. (Doc. 19 at 4.)
On June 8, 2012, a few days before Mr. Taylor filed his motion for reconsideration, he filed the present action in a different North Carolina trial court, and NSRC removed the case to this court. In this complaint, Mr. Taylor brought Mrs. Taylor’s prior personal injury claims now as apparent survival claims, his own claim for loss of consortium in his individual capacity and, as executor of Mrs. Taylor’s estate, a claim for wrongful death predicated on Mrs. Taylor’s personal injury claims from the first lawsuit.
II. ANALYSIS
A. Standard of Review
NSRC moves for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. The standard of review governing motions for judgment on the pleadings is the same as that employed on motions to dismiss for failure to state a claim under Rule 12(b)(6). Drager v. PLI-VA USA Inc.,
In adjudicating a motion under Rule 12(c), the court may consider the complaint, the answer, and any documents incorporated by reference into these pleadings. Mendenhall v. Hanesbrands, Inc.,
While federal law provides the framework for analyzing the motion before the court, North Carolina’s law on survivor-ship and wrongful death under which the two lawsuits’ claims are brought are central to its resolution.
Survivorship and wrongful death claims are each created by statute. Under N.C. GemStat. § 28A-18-l(a), a decedent’s right to prosecute or defend an action survives the decedent’s death, with the right to sue or defend surviving only for the personal representative of the decedent’s estate. This survivorship statute reverses the common law rule that claims abate upon death and simply permits the personal representative to step into the decedent’s shoes to prosecute the decedent’s cause of action. A judgment entered in a survivorship action “is an asset of the decedent’s estate.” State Auto Ins. Co. v. Blind,
A wrongful death claim is a “distinct and separate” cause of action created by N.C. GemStat. § 28A-18-2. Dunn v. Pac. Employers Ins. Co.,
Survivorship and wrongful death actions, though technically separate, bear an important relationship to one another. If both are brought in one complaint, they should be “stated separately,” and if they are brought in separate actions, they should be “consolidated for trial.” Bowen v. Constructors Equip. Rental Co.,
Given this dependent relationship and the fact that the Wrongful Death Act both encompasses and surpasses the recovery on a survivorship claim, a survivor-ship claim will commonly give way to the wrongful death claim, with the latter providing the exclusive remedy for the decedent’s injuries. For example, when a defendant has caused a decedent injuries that ultimately result in death, any survivorship claim merges into the wrongful death claim, with the latter providing the “only remedy.” Bolick v. S. Ry. Co.,
But when it is alleged that a decedent suffered personal injuries- and death that resulted from different causes, the personal representative can plead survivorship and wrongful death claims in the alternative. Alston v. Britthaven, Inc.,
Under North Carolina law, therefore, when a defendant’s conduct causes both injury and death, enabling both survivorship and wrongful death claims to be brought, the claims should be brought together, or else a separate judgment on one claim will preclude the other.
North Carolina’s rules as to the interplay between personal injury, survival, and wrongful death actions are not unique but rather mirror that of the majority of States. See Smith v. Brown & Williamson Tobacco Corp.,
With this background in mind, the court now turns to an analysis of the question presented in this case: whether the dismissal in the 2010 Lawsuit acts as res judicata against the claims in the current action.
C. Res Judicata
Res judicata, also known as claim preclusion, prevents parties from raising claims or defenses in a subsequent lawsuit that were or could have been raised in a prior lawsuit between them. Pueschel v. United States,
Under federal common law, the party asserting res judicata must demonstrate three elements: “(1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the
1. Identity of the Causes of Action
a. Same Transaction Test
The parties dispute whether the causes of action in the present case are the same as those in the prior case. The Fourth Circuit has consistently articulated a clear rule to determine the identity of claims for res judicata purposes, adopted from the Second Restatement of Judgments § 24: There is sufficient identity in the causes of action when claims “arise out of the same transaction or series of transactions, ... or the same core of operative facts.” In re Varat Enterprises, Inc.,
The determination is made pragmatically, considering factors such as “whether the facts are related in time, space, origin, or motivation, [and] whether they form a convenient trial unit.” Restatement (Second) of Judgments § 24(2). If it were not, the court “would allow parties to frustrate the goals of res judicata through artful pleading and claim splitting given that ‘[a] single cause of action can manifest itself into an outpouring of different claims, based variously .on federal statutes, state statutes, and the common law.’ ” Pueschel,
Mr. Taylor argues that res judicata cannot bar his wrongful death claim on account of a terminated prior personal injury action brought during his decedent’s lifetime because under North Carolina law they are different causes of action. (Doc. 23 at 7.) In support, he relies on the North Carolina Supreme Court’s passage in Dunn,
apart from the measure of damages, recovery for wrongful death in North Carolina depends upon the same proof of actionable negligence or misconduct under the general rules of tort liability which would apply to an action strictly for personal injury. The wrongful death action exists if and only if the decedent could have maintained an action for negligence or some other misconduct if she had survived. Hence, although a wrongful death action may be a distinct cause of action from one for negligent infliction of personal injury, the theory or theories of liability and the operative facts from which liability arises are not different. ... The death is not the operative fact upon which liability rests.
Nelson,
A comparison of the two complaints at issue here leads to the inescapable conclusion that Mr. Taylor’s claim for wrongful death arose out of the same series of transactions and core of operative facts alleged in the 2010 Complaint. All of NSRC’s misconduct alleged in the present complaint is alleged in identical fashion in the 2010 Complaint. All of the basic facts in the two cases “are related in time, space, origin, [and] motivation” because no new misconduct is alleged. Restatement (Second) of Judgments § 24(2). The only difference is that, in this case, Mr. Taylor alleges that NSRC’s tortious conduct also gives rise to a claim under the Wrongful
Moreover, the facts of the two cases stem from the same transaction, and the personal injury claims (considered as sur-vivorship claims after death) would have made “a convenient trial unit” with the wrongful death claims under the Second Restatement of Judgments § 24(2). North Carolina law treats Mrs. Taylor’s personal injury claims (once a personal representative was substituted) as part of the same transaction as the wrongful death claim. See Bolick,
Therefore, under the facts of this case, the two lawsuits reflect sufficient identity of their causes of action.
b. Exceptions to the Same Transaction Test
Mr. Taylor argues that res judicata should not bar the present lawsuit because the wrongful death claim was “not available until a properly appointed Personal Representative was substituted as a party to the prior action.” (Doc. 23 at 9-10.) Although claim unavailability is an exception to res judicata, it does not save Mr. Taylor’s case.
Generally, a claim that arises out of the same transaction or core of operative facts involved in the earlier suit will be barred, but that is not the case where the claim did not “exist” at the time of the earlier case such that the parties lacked a full and fair opportunity to litigate it. See Union
Analogizing to Union Carbide, Mr. Taylor argues that, “[bjecause the North Carolina Wrongful Death Statute created a new cause of action that was unavailable to the Taylors when they brought their initial claims, res judicata does not bar their subsequent claims.” (Doc. 23 at 11.) But he misconstrues Union Carbide and makes no showing that his case involves one of those “rare occasions” where a new statute was passed after the first lawsuit, creating a fresh cause of action.
In Union Carbide, the plaintiffs had previously sought black lung survivors’ benefits, but their claims were dismissed in 2006.
[W]e recognize that the record evidence has not changed since the denial of the original claims and that the only relevant change is one of law.... [T]he statutory change in law provides a previously unavailable basis for relief that justifies the instant claims, since res ju-dicata does not bar claims that the parties have not had a “full and fair opportunity to litigate.”
Id. (quoting Taylor v. Sturgell,
Union Carbide’s holding has no application to this case. The North Carolina General Assembly did not amend the Wrongful Death Act in an intervening period between the two lawsuits , involved here. Rather, the law has remained unchanged throughout both actions. Mr. Taylor recognized as much when he attempted to amend the 2010 Complaint to add the wrongful death claim. See Proposed Amendment to Complaint for Wrongful Death, Taylor v. Norfolk S. Ry. Co., No. 2:11-cv-60075 (E.D.Pa. Oct. 27, 2011), ECF No. 25-3. Therefore, the intervening law exception does not apply.
The second exception is available when there has been “a new factual development that gives rise to a fresh cause of action.” Union Carbide,
Later, in 1949, plaintiffs brought claims under the same antitrust laws, alleging that the defendants had merely used the earlier settlement “to perpetuate their conspiracy and monopoly,” as well as alleging that other parties had now joined in the conspiracy, that the primary defendant was not honestly fulfilling its obligations under the settlement agreement, and that the primary defendant was monopolizing in new ways. Id. at 324-25,
The Supreme Court reversed, finding that the two lawsuits were not based on the same cause of action. Id. at 327,
The present case is nothing like Lawlor. It is not that Mr. Taylor’s present lawsuit complains of the same “course” or type of wrongful conduct as the 2010 action; rather, it complains of precisely the same conduct. Lawlor articulated its uncontroversial holding by noting that acceptance of the defendants’ rule “would in effect confer on [the defendants] a partial immunity from civil liability for future violations.” Id. at 329,
In reality, the present case is just a disguised collateral attack on the earlier case. When Mrs. Taylor died during the pendency of the first case, the final element of the wrongful death cause of action was met. The wrongful death cause of action then accrued and became available, see Raftery,
[Res judicata] requires a plaintiff to join all claims together that the plaintiff has against the defendant whenever during the course of the litigation related claims mature and are able to be maintained. Thus, even if an additional claim does not mature until well after the initial complaint has been filed, the plaintiff nevertheless must seek to amend the complaint to add additional claims as a compulsory claim when the additional claim can be brought.
Stone v. Dep’t of Aviation,
Once Mr. Taylor filed the notice of death during the prior action, he incurred not an option, but an obligation, to amend his personal injury complaint and substitute himself as personal representative of what necessarily became a survivorship claim, lest the case be dismissed with prejudice as required by Rule 25(a)(1).
For these reasons, Mr. Taylor’s claims in the two lawsuits are identical for res judicata purposes, and there is no saving exception.
2. Identity of the Parties or Their Privies
The third and final element of res judi-cata requires an “identity of parties or their privies in the two suits.” Pueschel,
In general terms, North Carolina determines privity between parties based on their actual stake in the litigation:
Whether or not a person was a party to a prior suit must be determined as a matter of substance and not of mere form. The courts will look beyond the nominal party whose name appears on the record as plaintiff and consider the legal questions raised as they may affect the real party or parties in interest.
King v. Grindstaff,
There is no dispute that Mr. Taylor is in privity with himself as to his loss of consortium claims he brought in both the prior and present cases. Those claims are personal to him, and he remains the same plaintiff, in the same capacity, on each claim.
However, Mr. Taylor argues that there is no privity between Mrs. Taylor, on her prior personal injury action, and the beneficiaries on a wrongful death action for the same injuries because, he contends, the actions “are not brought to enforce the same rights.” (Doc. 23 at 14.) For support he relies on a non-precedential opinion from the North Carolina Court of Appeals, which explained that an “action for wrongful death is an action created by statute, and distinct from any underlying claims, even the claim upon which the wrongfulness of the death depends.” Udzinski v. Lovin,
Under North Carolina law, a wrongful death claim is derivative of the decedent’s personal injury claim. See Abney,
This conclusion is consistent with the approach articulated by the Second Restatement of Judgments, which follows a simple rule that, whenever
a person has been injured by an act which later causes his death and during his lifetime brought an action based on that act ... [i]f the action resulted in judgment against the injured person, it precludes a wrongful death action by his beneficiaries to the same extent that the person himself would have been precluded from bringing another action based on the act.
Restatement (Second) 'of Judgments § 46(1).
3. Summary
All three elements of res judicata are met. Mr. Taylor concedes that the 2010 lawsuit ended in a final judgment on the merits, and the court has determined there is an identity of claims and parties. The claims of the present lawsuit are therefore precluded by the earlier action.
This result admittedly appears harsh but, as the Supreme Court has concluded, “ ‘[sjimple justice’ is achieved when a complex body of law developed over a period of years is evenhandedly applied.” Federated Dep’t Stores, Inc. v. Moitie,
The predicament in which [Plaintiff] finds himself is of his own making_ [The court] cannot be expected, for his sole relief, to upset the general and well-established doctrine of res judicata, conceived in the light of the maxim that the interest of the state requires that there be an end to litigation — a maxim which comports with common sense as well as public policy. And the mischief which*464 would follow the establishment of precedent for so disregarding this salutary-doctrine against prolonging strife would be greater than the benefit which would result from relieving some case of individual hardship.
Id. at 401-02,
III. CONCLUSION
For these reasons,
IT IS THEREFORE ORDERED that NSRC’s motion for judgment on the pleadings (Doc. 18) be GRANTED, and the case be DISMISSED WITH PREJUDICE.
Notes
. NSRC’s subsequently filed motion for summary judgment (Doc. 20) and Mr. Taylor’s
. Mrs. Taylor's claims sounded in negligence (first cause of action), premises liability (second cause of action), "take home exposure” (third cause of action), and punitive and exemplary damages (fourth cause of action); Mr. Taylor claimed loss of consortium (fifth cause of action). (Doc.18-1.)
. Mr. Taylor also describes his representative capacity as one of "personal representative” of Mrs. Taylor's estate. Under North Carolina's Wrongful Death Act, "only the 'collector of the decedent’ or the personal representative — i.e., the administrator of an intestate, or the executor of one who dies testate — may institute an action for wrongful death; and he does so as the representative of the estate.” Bowling v. Combs,
. The current complaint alleges negligence (first cause of action), premises liability (second cause of action), "take home exposure” (third cause of action), gross negligence— willful, wanton, and reckless conduct (fourth cause of action), loss of consortium (fifth cause of action), and wrongful death action pursuant to N.C. Gen.Stat. § 28A-18-2 (sixth cause of action). (Doc. 5.)
. Although using the terms merger and bar, the North Carolina Supreme Court was employing principles more commonly known today as res judicata and claim preclusion. See Migra v. Warren City Sch. Dist. Bd. of Educ.,
. Under Rule 41(b), an involuntary dismissal, "except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19[,] operates as an adjudication on the merits,” unless the dismissal order states otherwise. The Taylors' earlier suit was dismissed under Rule 25(a), which is not an explicit exception, and the order did not otherwise note that the dismissal was without prejudice. Order, Taylor v. Norfolk S. Ry. Co., No. 2:11— cv-60075 (E.D.Pa. May 29, 2012), ECF No. 44 (attached in this case as Doc. 18-2). Therefore, the dismissal order constituted an adjudication on the merits for res judicata purposes. See Russell v. City of Milwaukee,
. For an analogous case, where the defendant's alleged misconduct was the same in both lawsuits, see Nathan v. Takeda Pharm. Am., Inc.,
. No one disputes that Mr. Taylor’s loss of consortium claim, brought in both this case and the prior one, are identical.
. In other circuits, the general rule is that "an action need include only the portions of the claim due at the time of commencing that action.” 18 Wright et al., supra, § 4409. But courts that apply this rule invariably justify it on the basis that plaintiffs have an opportunity — and not an obligation — to amend or supplement a complaint. Id..; see, e.g., Computer Assocs. Int'l, Inc. v. Altai, Inc.,
. Rule 25(a)(1) provides in pertinent part:
If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.
. By contrast, as noted earlier, any recovery on survivorship claims is an asset of the estate. To the extent Mr. Taylor’s complaint seeks survivorship damages, there would be privity for those claims because they represent the same legal right Mrs. Taylor had before she died. See N.C. Gen.Stat. § 28A-18-1 (a).
. Judge Elmore wrote the lead opinion, in which no other judge joined. Judge Hunter wrote a separate opinion, concurring in the result only. Judge Bryant dissented.
. Edwards made its policy choice explicit. As the North Carolina Supreme Court explained, there is no indication that the General Assembly, in adopting the Wrongful Death Act, intended to permit double recovery, subjecting the wrongdoer "to additional liability when he has made compensation to the injured party in his lifetime in full adjustment of the wrong done him.” Id. at 637. Had the court held otherwise, it would have prejudiced the injured party herself, making it more difficult for her to reach a resolution with the tortfeasor during her life. With the sword of double-liability "hanging over him,” the court explained, "[a] wrongdoer would be little inclined and hardly justified in offering adequate adjustment.” Id.
. The North Carolina Supreme Court has often relied on the Second Restatement of Judgments for its res judicata analyses, see, e.g., Jonesboro United Methodist Church v. Mullins-Sherman Architects, LLP,