United States District Court, C.D. Illinois
WANDA TINDALL, Individually And as the personal representative of the Estate of JACKIE TINDALL, deceased, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, Defendant. CHERYL PUFFER, as the personal representative of the Estate of CHARLES PUFFER, deceased, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, Defendant.
ORDER AND OPINION
E. Shadid Chief United States District Judge
above-captioned cases are before the Court on Motions ,
 by Defendant, Union Pacific Railroad Company, to Dismiss
the Complaints of Plaintiff Wanda Tindall and Plaintiff
Cheryl Puffer. For the reasons set forth below,
Defendant's Motions ,  are DENIED. Plaintiff
Tindall and Plaintiff Puffer are GRANTED leave to file
amended complaints in their respective cases within 21 days
from the entry of this Order.
Tindall and Plaintiff Puffer filed these actions against
Union Pacific Railroad Company (“UPRC”) on May
19, 2017, and both filed an Amended Complaint on August 11,
2017. Both Complaints allege that Defendant violated the
Federal Employers' Liability Act, 45 U.S.C. § 51
et seq. Plaintiff Tindall's husband, Jackie
Tindall, worked as a brakeman and conductor for Defendant for
38 years before developing cancer which proved to be fatal.
Plaintiff Puffer's husband, Charles Puffer, was employed
by Defendant for 43 years before developing cancer resulting
in his death. Both Plaintiffs allege that the decedents were
exposed to various toxic substances and carcinogens during
the course of and in the scope of their employment with
Defendant, and that their cancer was the result of
Defendant's negligence. Both Plaintiffs seek damages in
the amount of $150, 000.
August 25, 2017, Defendant filed Motions to Dismiss Tindall
and Puffer's Complaints under Federal Rule of Civil
Procedure 12(b)(1). Therein, Defendant alleges that this
Court lacks subject matter jurisdiction to hear the
Plaintiffs' Complaints because the Plaintiffs failed to
establish their capacity as personal representatives of
decedents-a requirement under FELA. See 45 U.S.C. § 51.
Defendant argues that capacity to sue under FELA is a
jurisdictional prerequisite, and because jurisdiction must be
present at the time the case is filed, see, e.g., Groupo
Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 571
(2004), the jurisdictional defect cannot be cured by later
amendment and the case must be dismissed.
filed Responses to Defendant's Motions, explaining that
Tindall and Puffer were each appointed Executrix of the
decedents' estates and did not seek formal appointment as
personal representative of the decedents' estates because
they were not required to do so under Arkansas and Missouri
law. Attached to both responses are copies of the
decedents' wills. Plaintiffs request leave of court to
perfect their status as representatives of their respective
estates before filing amended complaints. Plaintiffs argue
that leave to amend should be granted because the amendments
will not allege new facts or assert any different causes of
action, but will merely set forth the fact that the
Plaintiffs are indeed the personal representatives of the
decedents' estates. Because the amended filings would
relate back to the original Complaints, Plaintiffs argue,
dismissal is unnecessary and inappropriate. On September 14,
2017, Plaintiffs filed Notices of Supplementation of the
Record informing the court of a favorable decision in a
similar case in the District of Nebraska. See West v.
Union Pac. R.R. Co., Case No. 8:17-cv-36 (D. Neb. Sept.
purposes of a motion to dismiss, the complaint is construed
in the light most favorable to the plaintiff and all
well-pleaded factual allegations are taken as true.
Albright v. Oliver, 510 U.S. 266, 268 (1994);
Hishon v. King & Spalding, 467 U.S. 69 (1984);
Lanigan v. Village of East Hazel Crest, 110 F.3d 467
(7th Cir. 1997); M.C.M. Partners, Inc. v.
Andrews-Bartlett & Assoc., Inc., 62 F.3d 967, 969
(7th Cir. 1995); Early v. Bankers Life & Cas.
Co., 959 F.2d 75 (7th Cir. 1992). “As a
jurisdictional requirement, the plaintiff bears the burden of
establishing standing.” Apex Digital, Inc. v.
Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir.
2009). “[W]hen considering a motion that launches a
factual attack against jurisdiction, ‘[t]he district
court may properly look beyond the jurisdictional allegations
of the complaint and view whatever evidence has been
submitted on the issue to determine whether in fact subject
matter jurisdiction exists.' ” Id. at 444,
citing Evers v. Astrue, 536 F.3d 651, 656-57 (7th
Federal Employers' Liability Act provides:
Every common carrier by railroad while engaging in commerce
between any of the several States or Territories …
shall be liable in damages to any person suffering injury
while he is employed by such carrier in such commerce,
or, in case of the death of such employee, to his or her
personal representative, for the benefit of the
surviving widow or husband and children of such employee;
and, if none, then of such employee's parents; and, if
none, then of the next of kin dependent upon such employee,
for such injury or death resulting in whole or in part from
the negligence of any of the officers, agents, or employees
of such carrier, or by reason of any defect or insufficiency,
due to its negligence, in its cars, engines, appliances,
machinery, track, roadbed, works, boats, wharves, or other
45 U.S.C. § 51 (emphasis added).
facts of this case, as alleged by Plaintiffs Tindall and
Puffer in their Complaints, are indistinguishable in all
material aspects from the facts underlying the Supreme
Court's decision in Missouri, Kansas, & Texas Ry.
Co. v. Wulf, 226 U.S. 570 (1913). The Court in Wu l
f held that a plaintiff in a FELA case may amend her
complaint to properly allege capacity to sue, and that such
amendment would relate back to the filing of the initial
complaint. Id. at 576. The only issue before this
Court, therefore, is whether Wulf remains good law.
argues that Wulf is distinguishable because
“it was decided in 1913 and at that point in time, a
mistake as to the proper party to sue was perhaps
understandable.” Tindall, Doc. 8, at 6;
Puffer, Doc. 8, at 6. Because over 100 years have
passed since Wu l f was decided, Defendant argues
that such a mistake is now unreasonable, and cites cases from