Cason v. Puerto Rico Electric Power Authority

United States Court of Appeals
For the First Circuit

No. 12-2354
MARISOL CASON; PATRICIA BENAVIDES,

Plaintiffs-Appellants,

DAISY AGUAYO CUEVAS, individually and on behalf of her Minor
Children, E.A.T.A.; T.M.T.A.; J.M.T.A.; and A.J.T.A.,

Plaintiffs,

v.

PUERTO RICO ELECTRIC POWER AUTHORITY; ACE INSURANCE COMPANY;
PUERTO RICO TELEPHONE COMPANY, INC.; TRIPLE-S PROPIEDAD,

Defendants/Third Party Plaintiffs-Appellees,

JAF COMMUNICATIONS, INC.; UNIVERSAL INSURANCE COMPANY,

Third Party Defendants-Appellees,

ETL CONTRACTORS, INC.; INSURANCE COMPANY “Z”,

Third Party Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]

Before
Torruella and Lipez, Circuit Judges,
and Gelpí,* District Judge.

Hatuey Infante-Castellanos, with whom Toby B. Fullmer and
Matthews & Fullmer, L.L.C., were on brief, for appellants Cason and
Benavides.
Ángel A. Valencia-Aponte, was on brief, for of appellee Puerto
Rico Electric Power Authority.

*
Of the District of Puerto Rico, sitting by designation.
November 4, 2014
 GELPÍ, District Judge.

Plaintiffs-Appellants, Marisol Cason and Patricia

Benavides (“Cason and Benavides”), filed a wrongful death suit

against Defendants in the United States District Court in Puerto

Rico. The Defendant-Appellee, Puerto Rico Electric Power Authority

(“PREPA”), challenged the District Court’s jurisdiction, arguing

that an additional, non-diverse member of the decedent’s estate

who was not made a party to the action, was indispensable, and

that, in turn, his joinder destroyed the parties’ complete

diversity.

The District Court agreed that the presence of this non-

diverse absent heir was required to adjudicate the suit. The court

thus dismissed the entire action for lack of subject matter

jurisdiction. This included the decedent’s estate survivorship

action, as well as individual damages actions by estate members,

the decedent’s consensual partner, and two sisters, Cason and

Benavides, who are not his heirs.

In this appeal, Cason and Benavides argue that the

District Court erred in dismissing the complaint in its entirety,

including their personal claims, which were separate and distinct

from those of the estate and its members. They also posit that the

court erred in its determination that the missing heir was a

necessary and indispensable party to the federal action. More so,

given that the plaintiffs who asserted the survivorship action

-3-
requested dismissal voluntarily, Cason and Benavides note that only

their individual claims remained before the District Court. Thus,

they argue that they are, always have been, and will remain diverse

in any federal action brought against the defendants.

We conclude that the dismissal of Cason and Benavides’s

personal actions was unwarranted. The non-diverse absent party

was, in any event, not required to adjudicate the action because

the members of the estate requested voluntary dismissal of their

claims. The voluntary dismissal eliminated the survivorship action

and with it any concern as to the indispensability and joinder

issue raised by PREPA. The only claims that remained were those of

Cason and Benavides, which were jurisdictionally sound. Without

question, the District Court had jurisdiction over said claims.

I. Background

A. The Accident

Edwin Torres-López (“Torres-López” or “the decedent”),

died from electrocution on September 20, 2010, at age thirty-three.

At that time, he owned and operated a company which performed

subcontract work for telecommunications companies in Puerto Rico,

including, the Puerto Rico Telephone Company (“PRTC”). He was

electrocuted by a “down-guy” wire connected to a utility pole which

was improperly energized while he was removing and installing

telecommunications cables. PREPA and the PRTC are purportedly

responsible for the utility pole in question.

-4-
B. Procedural Background

1. The Resulting Litigation in the District Court

Daisy Aguayo-Cuevas, the decedent’s consensual partner,

individually and on behalf of her and Torres-López’s four minor

children (the “Torres-Aguayo heirs,” and together with their mother

the “Aguayo plaintiffs”) filed a wrongful death complaint in the

United States District Court on September 15, 2011. Cason and

Benavides, the decedent’s sisters, also joined the action as named

plaintiffs. The named defendants were PREPA, the PRTC, and their

insurance companies (collectively “Defendants”). All plaintiffs

sought relief for their own pain and suffering resulting from the

illegal death of Torres-López.1 In addition, the Torres-Aguayo

heirs sought to recover for the damages their father suffered prior

to his death via a survivorship action.2

1
Puerto Rico law permits relatives of the deceased and
certain other individuals, such as consensual partners, to bring a
personal claim under Article 1802 of the Puerto Rico Civil Code,
for their personal damages caused by the decedent’s wrongful death.
P.R. LAWS ANN. tit. 31 § 5141. Such an action is not limited to
family members, is not dependent upon status as an heir, and does
not require plaintiff to have suffered physical injury or economic
loss. See Montalvo v. González-Amparo, 587 F.3d 43, 47 (1st Cir.
2009); Hernández v. Fournier, 80 P.R. Dec. 93, 98-99 (1957).

2
At times, the term “survivorship action” or “inherited
claim” has been confused by the parties to refer to claims brought
by the decedent’s heirs for their own pain and suffering resulting
from an illegal death. This is incorrect. As will be discussed
further, there are two types of actions that stem from the tort of
wrongful death: individual damages and survivorship actions. Both
actions are separate and distinct from one another. See Montalvo,
587 F.3d at 46; Widow of Delgado v. Boston Ins. Co., 1 P.R. Offic.

-5-
 The District Court’s jurisdiction was premised on

diversity of citizenship; at the time the complaint was filed, all

named plaintiffs were domiciled in San Antonio, Texas, and all

named defendants were domiciled in Puerto Rico.

On November 10, 2011, PREPA filed a motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter

jurisdiction, as well as Fed. R. Civ. P. 12(b)(7), for failure to

join a necessary party under Fed. R. Civ. P. 19. Therein, PREPA

contended that the survivorship cause of action should be dismissed

pursuant to Cruz-Gascot v. HIMA-San Pablo Hosp. Bayamón, 728 F.

Supp. 2d 14 (D.P.R. 2010), which held that all members of an estate

must be named as parties to a survivorship action brought under

Puerto Rico law. PREPA averred that a fifth member of Torres-

López’s estate was missing from the action, to wit, a child from a

previous relationship (hereinafter the “fifth minor child”). PREPA

argued that this additional heir was a necessary and indispensable

party, and thus, the case could not proceed without him. However,

because this child was domiciled in Puerto Rico, joining him would

vitiate the court’s diversity jurisdiction. Moreover, PREPA argued

that the personal actions for damages brought by Cason and

Benavides should also be dismissed in “equity and good conscience”

pursuant to Fed. R. Civ. P. 19(b) because dismissal would allow

Trans. 823, 825, 101 P.R. Dec. 598, 602 (1973).

-6-
said plaintiffs to initiate a suit in the Commonwealth court of

Puerto Rico.

On January 9, 2012, the Aguayo plaintiffs voluntarily

moved to dismiss without prejudice of all their personal damages

claims, as well as the estate’s survivorship action pursuant to

Fed. R. Civ. P. 41(a)(2). They informed the court that they no

longer resided in Texas having moved to Puerto Rico. They also

stated that they intended to pursue all their claims in

Commonwealth court along with the fifth minor child.3 However,

they noted that Cason and Benavides, who remained Texas citizens,

would continue to assert their personal claims in federal court.

The Defendants did not file any opposition to the voluntary

dismissal request. On January 9, 2012, all plaintiffs opposed

PREPA’s motion to dismiss noting that the same became moot upon the

Aguayo plaintiffs’ request for voluntary dismissal, as Cason and

Benavides were now the only remaining plaintiffs.

On January 31, 2012, PREPA replied to plaintiffs’

opposition to dismissal. It did not challenge Cason and

Benavides’s Texas domicile and solely argued that the District

Court should nonetheless abstain from adjudicating Cason and

Benavides’s personal actions under Colorado River Water

3
Plaintiffs-Appellants allege they had no prior knowledge of
the fifth minor child’s existence when they filed their federal
suit. It appears they learned he existed once PREPA asked the
District Court to take judicial notice of a Commonwealth court case
brought by his mother on his behalf.

-7-
Conservation Dist. v. U.S., 424 U.S. 800 (1976). PREPA posited

that, regardless of the sisters’ diverse status, they should be

required to join the other plaintiffs’ state action and litigate in

Commonwealth court.

On May 2, 2012, a magistrate judge issued a report and

recommendation on PREPA’s motion to dismiss suggesting that the

District Court grant the Aguayo plaintiffs’ voluntary dismissal

motion. The report and recommendation further suggested that the

District Court deny the motion to dismiss for failure to join an

indispensable party because the heirs who brought the survivorship

action were no longer parties. The magistrate judge noted that

there was no concern for the failure to join an indispensable

party, as articulated in Cruz-Gascot. More so, she noted that

Cason and Benavides, who are not estate members, only claimed

individual damages for the pain and suffering their brother’s

untimely death personally caused them. Said claims were the only

ones left and thus, were jurisdictionally sound. Regarding

Colorado-River, the magistrate judge noted that abstention under

said doctrine required exceptional circumstances and was improper

because Cason and Benavides were not heirs of the decedent.

Contrary to PREPA’s assertion, there was no parallel state court

action for them to join.

On May 16, 2012, PREPA objected to the report and

recommendation. Thereafter, on September 28, 2012, the District

-8-
Court issued a memorandum and order rejecting the same. The court

held that the non-diverse fifth minor child was indispensable and

his presence was required to adjudicate the suit. However, his

joinder would destroy the parties’ complete diversity. The

District Court thus dismissed the entire action, including Cason

and Benavides’s individual claims, for lack of subject matter

jurisdiction. In doing so, it relied exclusively on Cruz-Gascot.4

II. Discussion

A. The Tort of Wrongful Death

In Puerto Rico, the tort of wrongful death gives rise to

two separate causes of action recognized under Article 1802 of the

Puerto Rico Civil Code. See P.R. LAWS ANN. tit. 31 § 5141.5 The

first is the victim’s personal action for damages experienced by

him or her prior to death and caused by the negligent or

intentional act or omission of another person. See Montalvo, 587

F.3d at 46; Widow of Delgado, 1 P.R. Offic. Trans. 823, 825 (1973).

This action is known as a “survivorship action.”

The second type of tort action recognized under Article

1802 of the Puerto Rico Civil Code is the personal action that

corresponds exclusively and by own right to the decedent’s

4
The District Court did not address the Colorado River
argument. Therefore, we do not, either.
5
Article 1802 provides that: “A person who by an act or
omission causes damage to another through fault or negligence shall
be obliged to repair the damage so done.” P.R. LAWS ANN. tit. 31 §
5141.

-9-
relatives or any individual who personally suffers damages by

virtue of the decedent’s death, regardless of status as an heir.

Widow of Delgado, 1 P.R. Offic. Trans. at 825; see Montalvo, 587

F.3d at 47; Hernández, 80 P.R. Dec. at 98-99.

In the present case, the complaint filed by plaintiffs

invoked both types of actions under Article 1802. The complaint

alleged that all named plaintiffs suffered personal damages as a

result of the wrongful death of Torres-López. In addition, the

Torres-Aguayo heirs alone, as members of his estate, exercised the

survivorship action.6

B. The Joinder Issue

Questions of subject matter jurisdiction are reviewed de

novo. Cooper v. Charter Comm. Entertainment, 760 F.3d 103, 105

(1st Cir. 2014). The appeal at bar raises the question of whether

the District Court erred in disposing of the entire case, by also

disposing of Cason and Benavides’s personal actions, which were

separate and distinct from the estate’s survivorship action.

The issue of whether all heirs must be joined as parties

to a diversity suit asserting a survivorship action has been

addressed on multiple occasions by the federal district court in

6
Having died intestate, Torres-López’s heirs, or his estate,
are his five minor children who acquired altogether the rights of
their predecessor, Velilla v. Piza, 17 P.R. Dec. 1112, at *4
(1911), and who now participate in a hereditary community where
each “conveys a joint right to the aggregate” inheritance. See
Kogan v. Registrador, 125 P.R. Dec. 636, 652 (1990).

-10-
Puerto Rico. The several judges therein are squarely divided as to

whether a non-diverse absent heir is a necessary and indispensable

party under Fed. R. Civ. P. 19.7

In Jiménez v. Rodríguez-Pagán, 597 F. 3d 18 (1st Cir.

2010), this court “harbor[ed] considerable skepticism” that non-

diverse absent heirs were, in fact, indispensable parties under

Rule 19 to a wrongful death suit. See Jiménez, id. at 23. Because

of the unique procedural posture of this case, i.e., the voluntary

dismissal of the Aguayo plaintiffs’ claims, we need not rule at

this time on the Rule 19 joinder issue. In exercising the

survivorship action, the Torres-Aguayo heirs, as members of Torres-

7
Compare, e.g., Reyes-Ortíz v. HIMA San Pablo-Bayamón, No.
11-1273 (D.P.R. June 16, 2014); Segura–Sanchez v. Hosp. Gen.
Menonita, Inc., 953 F. Supp. 2d 344, 348 (D.P.R. 2013);
Casillas-Sanchez v. Ryder Mem'l Hosp., Inc., No. 11-2092, 2013 WL
3943517, at *1 (D.P.R. July 30, 2013); Pagán-Ortíz v. Carlo-
Dominguez, 977 F. Supp. 2d 106 (D.P.R. 2013); Pino-Betancourt v.
Hosp. Pavía Santurce, 928 F. Supp. 2d 393, 396 (D.P.R. 2012),
(cases holding that all heirs are required and indispensable
parties to a wrongful death suit asserting a survivorship action),
with Rodríguez v. Integrand Assur. Co., No. 10-1476, 2011 WL
3439260 at *3 (D.P.R. Aug. 5, 2011); Muñiz-Mercado v. Hosp. Buen
Samaritano, No. 09-1829, 2010 WL 923 at *1 (D.P.R. Oct. 26, 2010);
Martínez-Alvarez v. Ryder Mem’l Hosp., Inc., No. 09-2038, 2010 WL
3431653 at *18 n.9 (D.P.R. Aug. 31, 2010); Ruiz-Hance v. Puerto
Rico Aqueduct & Sewer Auth., 596 F. Supp. 2d 223, 229-30 (D.P.R.
2009); Rodríguez-Rivera v. Rivera Ríos, No. 06-1381, 2009 WL
564221, at *3. (D.P.R. Mar. 5, 2009); Arias-Rosado v. González
Tirado, 111 F. Supp. 2d 96, 99 (D.P.R. 2000); Cintrón v. San Juan
Gas, Inc., 79 F. Supp. 2d 16, 19 (D.P.R. 1999) (cases holding that
survivorship actions can be brought on behalf of the estate without
joining all heirs as parties); see also Anderson v. The Islamic
Republic of Iran, 753 F. Supp. 2d 68, 83 (D.D.C. 2010) (“District
Courts in the First Circuit have had numerous opportunities to
discuss the application of Puerto Rico law on this matter, and have
reached a consensus that the Puerto Rico law regarding causes of
action by members of an estate permits individual members to bring
a cause of action for the decedent's pain and suffering”).

-11-
López’s estate, sought to recover his damages. However, later,

they chose to voluntarily dismiss all their claims pursuant to Fed.

R. Civ. P. 41(a)(2).

Rule 41(a)(2) permits a plaintiff to request dismissal of

an action “by court order, on terms that the court considers

proper.” Fed. R. Civ. P. 41(a)(2); Colón-Cabrera v. Esso Standard

Oil Co. (Puerto Rico), Inc., 723 F.3d 82, 87 (1st Cir. 2013). The

rule allows a plaintiff to voluntarily dismiss his own case as long

as “no other party will be prejudiced.” P.R. Mar. Shipping Auth.

v. Leith, 668 F.2d 46, 50 (1st Cir. 1981) (citing LeCompte v. Mr.

Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976)) (internal quotation

marks omitted). The court is responsible for ensuring that such

prejudice will not occur. Colón-Cabrera, 723 F. 3d at 87; Doe v.

Urohealth Sys., Inc., 216 F.3d 157, 160 (1st Cir. 2000).

Moreover, a district court should grant a motion for

voluntary dismissal unless a defendant can show that it would

suffer some plain legal prejudice as a result thereof, as opposed

to facing the mere prospect of a second lawsuit. See Doe v.

Urohealth Sys., Inc., 216 F.3d 157, 161 (1st Cir. 2000).

Here, Defendants did not oppose the Aguayo plaintiffs’

request for voluntary dismissal, which included the claim by

Torres-López’s estate. Pursuant to Local Rule of Civil Procedure

7(b), “[u]nless within (14) days after the service of a motion the

opposing party files a written objection to the motion,

-12-
incorporating a memorandum of law, the opposing party shall be

deemed to have waived objection.” D.P.R. Civ. R. 7(b). Rather

than opposing the request for voluntary dismissal filed by the

Aguayo plaintiffs, Defendants’ response was limited to requesting

the District Court not to exercise diversity jurisdiction over the

claims brought by Cason and Benavides. We also do not see any

plain legal prejudice in granting said request. The District

Court, however, found that the fifth minor child would be

prejudiced if he were not joined to the suit. In doing so, it

afforded no weight to the request for voluntary dismissal of the

Aguayo plaintiffs, but rather centered its determination on the

issue of the fifth minor child’s joinder.

Faced with the Aguayo plaintiffs’ request for voluntary

dismissal, instead of dismissing the entire case, the District

Court should have granted said request and retained jurisdiction

over Cason and Benavides’s personal actions. The case no longer

involved a survivorship claim belonging to the estate, and,

therefore, the indispensability issue became moot. At that point,

no heir had an interest in the subject matter of the remaining

actions, which are completely separate from those of the estate.

As such, there was no potential prejudicial effect in adjudicating

Cason and Benavides’s individual claims. Moreover, the court could

have afforded complete and meaningful relief as to those parties

remaining in the litigation.

-13-
C. Jurisdiction and Dismissal of Dispensable Parties

Even if we held, like the District Court, that the fifth

minor child was an indispensable party who defeated complete

diversity, this federal suit involved additional parties who were

entirely diverse when the federal proceedings began. Instead of

dismissing the entire case, including Cason and Benavides’s

personal actions, the District Court had yet another alternative to

preserve its jurisdiction.

The time-of-filing rule is used to determine whether

diversity jurisdiction exists. Like most general principles, this

rule is susceptible to some exceptions. See Newman-Green, Inc. v.

Alfonzo-Larrain, 490 U.S. 826, 830 (1989). One applicable

exception is found in Fed. R. Civ. P. 21. “[I]t is well settled

that Rule 21 invests district courts with authority to allow a

dispensable non-diverse party to be dropped at any time, even after

judgment has been rendered”and this is done by order of the court

on motion of any party or of [the court’s] own initiative . . . on

such terms as are just.” Id. at 832-33. Dismissal of a non-

diverse dispensable party has long been recognized as a way to cure

a jurisdictional defect and Rule 21 explicitly vests district

courts with authority to allow a dispensable non-diverse party to

be dropped at any time. See id. at 832-38 (noting that Rule 21

authorizes courts to dismiss non-diverse defendants to cure

jurisdictional defects, instead of dismissing the entire case); see

-14-
also Caterpillar v. Lewis, 519 U.S. 61, 76-77 (1996) (same).

[T]he question always is, or should be, when objection is
taken to the jurisdiction of the court by reason of the
citizenship of some of the parties, whether . . . they
are indispensable parties, for if their interests are
severable and a decree without prejudice to their rights
can be made, the jurisdiction of the court should be
retained and the suit dismissed as to them.

Horn v. Lockhart, 84 U.S. 570, 579 (1873). When the change in

parties does not “affect the course of the litigation,” and does

not “embarrass the defendant,” requiring the plaintiffs to start

over in the district court “would entail needless waste and runs

counter to effective judicial administration.” Mullaney v.

Anderson, 342 U.S. 415, 417 (1952).

“The post-commencement party lineup changes,” here, the

Aguayo plaintiff’s request for dismissal, “simply trimmed the

litigation down to an ever-present core that met the statutory

requirement,” to wit, Cason, Benavides, and Defendants. See Grupo

Dataflux v. Atlas Global Grp., 541 U.S. 567, 591 (2004). Here too

there was a change in the party lineup that eliminated any

jurisdictional “spoilers” and did not affect the course of the

proceedings. See Newman-Green, 490 U.S. at 837-38. More so, if

the missing heir had been joined, his dismissal would not prejudice

any of the remaining parties to the litigation. See id. at 837-38.

“[C]onsiderations of finality, efficiency, and economy”

certainly apply here. See Grupo Dataflux, 541 U.S. at 592. Rigid

insistence on the time-of-filing rule, rather than eliminating the

-15-
jurisdictional defect the District Court found, would mean an

almost certain replay of the case. See Newman-Green, 490 U.S. at

837. In dismissing the entire suit, Cason and Benavides,

undoubtedly diverse parties, would simply re-file their claims

against Defendants in the district court. If an easily curable

jurisdictional defect is discovered shortly after a case is filed,

the district court should decide whether the plaintiff must be put

to the bother of filing a fresh suit “which at long last will

merely bring the parties to the point where they now are.” Hackner

v. Guaranty Trust Co. of New York, 117 F.2d 95, 98 (2d Cir. 1941).

Cason and Benavides “should not be compelled to jump through these

judicial hoops merely for the sake of hypertechnical jurisdictional

purity.” Newman-Green, 490 U.S. at 837.

The aforementioned considerations weigh heavily against

dismissing Cason and Benavides’s personal actions. Instead of

dismissing the entire case for want of jurisdiction the District

Court had the authority to drop the “diversity destroying” party,

thereby curing any purported jurisdictional defect it found and

salvaging its jurisdiction as between those parties who were

properly before it. “[E]ven on questions of a court’s adjudicatory

authority in particular, salvage operations are ordinarily

preferable to the wrecking ball.” Grupo Dataflux, 541 U.S. at 592

(Ginsburg, J., dissenting).

III. Conclusion

-16-
 For the reasons stated, the judgment of the District

Court is REVERSED, and the case is REMANDED for proceedings

consistent with this opinion. Costs shall be assessed against the

appellees.

-17-