UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Barden Culbreth, as Executor of the Estate of William Charles Rowan

v. Civil No. 19-cv-031-JD Opinion No.

Edmond L. Macri, Jr.

O R D E R

The wrongful death claim in this case arises from a boating

accident in which William Charles Rowan was killed. Rowan’s

mother, Kelly Viets Rowan, filed the original complaint against

Edmond L. Macri, Jr., who was driving the boat at the time of

the accident. Barden Culbreth, as executor of the estate of

William Charles Rowan, then filed an assented-to motion to file

an amended complaint, in which he pursued the wrongful death

claim under RSA 556:12 and Kelly Rowan was no longer named as a

party. The motion to amend was granted, and the amended

complaint was filed.

Because Kelly Rowan is not named as a party in the amended

complaint, the court ordered her to show cause why she should

not be dismissed from the case. The court gave the other

parties an opportunity to respond to her memorandum. Rowan

filed her memorandum; Culbreth and Macri filed responses, and

then Rowan filed a “Corrected Memorandum of Law.” Discussion

In her memorandum, Rowan contends that it was not the

intention of the parties that she would be eliminated from the

case. She also argues that North Carolina law controls the

wrongful death action and that under North Carolina law she

would be entitled to distribution of any award of damages. She

argues that she is a necessary or indispensable party in order

to protect her right to distribution.

Culbreth filed a response to Rowan’s memorandum. Culbreth

contends that under RSA 556:19 he is the proper party, as the

executor of William Charles Rowan’s estate, to maintain the

wrongful death claim. He does not take a position, however, as

to whether Rowan should remain as a party in the case.

Macri also filed a response in which he first states that

he “takes issue with the suggestion that he has remained silent

in the face of standing questions surrounding Ms. Rowan.” Doc.

35, at *2. Macri also asserts that he can file a motion to

dismiss the amended complaint until February 24, 2020. In

conclusion, Macri does not object to Rowan’s participation in

discovery but does object to having her continue as a plaintiff

in the case.

2 A. Choice of Law

Rowan references North Carolina’s wrongful death statute

and suggests, in passing, that North Carolina law should govern

the wrongful death claim in this case because the case has only

a “fortuitous” connection with New Hampshire. She did not

provide any developed choice of law analysis, however. See,

e.g., Moore v. Atrium Med. Corp.,

, at *2-*4

(D.N.H. Sept. 23, 2019) (discussing and applying New Hampshire’s

threshold requirement of a conflict of laws and the five-factor

choice of law analysis). In the absence of developed argument

on the choice of law issue, it is waived for purposes of the

current questions regarding Rowan’s standing. United States v.

Kilmartin,

, 332 n.6 (1st Cir. 2019).

B. Operative Complaint and Proper Party

Rowan challenges the general rule that an amended

complaint, once filed, supersedes the original complaint. In

support, she argues that the circumstances were different in the

case cited for that rule in the show cause order, Brait Builders

Corp. v. Mass. Div. of Capital Asset Mgmt.,

(1st

Cir. 2011), and the case it relied on, Connectu LLC v.

Zuckerberg,

(1st Cir. 2008). While the

underlying claims and facts were different in the cited cases,

Rowan has not shown that those differences are material to the

3 rule that an amended complaint supersedes the original.

Further, Rowan has cited no case that suggests a different rule

should apply here. Her efforts to evade the general rule are

unpersuasive. See, e.g., 4 Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1476 (3d Ed. 2019);

Newman v. Lehman Bros. Holdings Inc.,

, 27 n.8 (1st

Cir. 2018); Kolling v. Am. Power Conversion Corp.,

(1st Cir. 2003); Medidea, L.L.C. v. DePuy Orthopaedics, Inc.,

--- F.3d ---,

, at *9-*10 (D. Mass. Nov. 15,

2019); Cross v. DOC Sheriff of Suffock County House of Corr.,

, at *2 (D. Mass. Oct. 17, 2019).

Rowan asserts that her standing to maintain the wrongful

death claim in this action is governed by New Hampshire law.

Under New Hampshire law, Rowan, as an interested party, had

standing to begin the wrongful death action. RSA 556:19.

Thereafter, Culbreth, as the appointed administrator of William

Rowan’s estate, has standing to prosecute the wrongful death

action that Rowan began.

Because there is no action for wrongful death under New

Hampshire common law, that cause of action exists only as

provided by statute. Tanner v. King,

(1960).

As interpreted by the New Hampshire Supreme Court, RSA 556:19

allows an interested person only to begin a wrongful death

action not to prosecute the action.

Once begun by an

4 interested person, a wrongful death action must be dismissed

unless the appointed administrator of the estate endorses the

claim and continues to prosecute it.1 Id.; see also Canty v.

Hopkins,

(2001) (an administrator has no duty

to prosecute an unfounded claim brought by an interested party).

Despite her stated reliance on the New Hampshire wrongful

death statute, Rowan also argues that she has standing to

proceed as a party because under North Carolina law any award of

wrongful death damages will be distributed to her.2 She asserts

that distribution of an award of damages in this case is the key

issue. As is explained above, Rowan has not shown that North

Carolina law governs in this case. Further, the administration

of the estate and distribution of any award of damages from the

estate are matters that are beyond the scope of this case and

outside the jurisdiction of the court. See Marshall v.

Marshall,

(2006); Gray v. Gray,

,

, at *5 (D.N.H. Dec. 9, 2019).

1 For that reason, Rowan’s argument that she should be allowed to continue as a party in case Culbreth decides not to continue to prosecute the case is contrary to New Hampshire law.

2 Rowan argues that RSA 556:19 does not preclude her from continuing as a party after the executor has entered an appearance. Whether or not the statute would permit an interested party to continue to participate in a case after the administrator has appeared, is a different situation than is presented here. The amended complaint eliminated Rowan as a party. She is asking to be reinstated as a plaintiff.

5 Culbreth is the only named plaintiff in the amended

complaint, which is the operative complaint in this case.3

Despite the procedural anomalies that preceded the amended

complaint, Culbreth is the plaintiff in this case, and the

amended complaint is the operative pleading going forward.4

C. Necessary or Indispensable Party

Rowan argues, nevertheless, that she must be added as a

necessary or indispensable party because “complete relief cannot

be accorded without her.” Doc. no. 37, at *7. She relies on

the federal rules pertaining to joinder of parties. Fed. R.

Civ. P. 19(a)(1)(A) and 19 (a)(1)(B)(i). In his response,

Culbreth represents that he is unaware of any authority that

would allow Rowan to continue as a party in this case and that

it is unnecessary for her to participate as a party. Macri

objects to Rowan participating as a plaintiff.

Rule 19(a)(1) states: “A person who is subject to service

of process and whose joinder will not deprive the court of

3 Rowan is not named as a party in the caption or the body of the amended complaint. See Fed. R. Civ. P. 10(a) (“The title of the complaint must name all the parties; . . . .”). Further, she mentioned but was not included as a party in the body of the amended complaint. Therefore, it does not appear that Rowan was mistakenly omitted.

4 All parties are represented by counsel. The procedural course that preceded the standing issues is fully set forth in the court’s show cause order. See Doc. no. 31.

6 subject-matter jurisdiction must be joined as a party” if

certain circumstances exist. One circumstance exists when “in

that person’s absence, the court cannot accord complete relief

among the existing parties.” Fed. R. Civ. P. 19(a)(1)(A).

Another exists when “that person claims an interest relating to

the subject of the action and is so situated that disposing of

the action in the person’s absence may . . . as a practical

matter impair or impede the person’s ability to protect the

interest.” Fed. R. Civ. P. 19(a)(1)(B)(i).

Rowan states that “[i]t is critically important that [she]

participate in a determination of how any recovery is to be

distributed where, as here, it appears that the estate reserves

the right to argue that any recovery should be distributed in a

manner that contradicts North Carolina law.” Doc. no. 37, at

*7. Macri asserts that the court will need to decide how a

damages award will be distributed, particularly to aid

settlement, but cites no authority in support of that theory.

As is explained above, Rowan has not shown that North

Carolina law applies to the wrongful death claim in this case

and agrees that New Hampshire law, RSA 556:19, governs her

standing to proceed. Under RSA 556:19 and 556:12, I, Culbreth

as the executor of the estate is the proper plaintiff, and any

award of damages will be made to him. The issue of distribution

of any award of damages will not be decided here because claims

7 against or with respect to administration of the estate must be

made in the proper forum, which is not this court.

Therefore, Rowan has not shown that she must be joined as

either a necessary or indispensable party in this case.

Conclusion

For the foregoing reasons, Barden Culbreth, as executor of

the estate of William Charles Rowan, is the only plaintiff in

the case. Kelly Viets Rowan is dismissed from the case.

The operative complaint is the amended complaint, document

no. 18.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge

February 13, 2020

cc: Counsel of record.

8