UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DANIEL T. MILLER, JR.,
Plaintiff-Appellant,

and

HELEN MELTON,
Plaintiff,

v.
                                                               No. 98-2010

GLENN V. LONGACRE, JR.; WANDA
LONGACRE; JOHN MOORE; HELEN
MOORE; BROOKS RUN COAL
COMPANY; ANY AND ALL JOHN AND
JANE DOE CLAIMANTS,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Robert Earl Maxwell, Senior District Judge.
(CA-96-175-2)

Submitted: December 15, 1998

Decided: January 28, 1999

Before HAMILTON and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Daniel T. Miller, Jr., Appellant Pro Se. William Tracey Weber, Jr.,
WEBER & WEBER, Weston, West Virginia; David John Romano,
Clarksburg, West Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Daniel Miller appeals from a district court order dismissing his
diversity action seeking to quiet title to a piece of real property
located in West Virginia. This case appears before the court for the
second time. Previously, the district court dismissed Miller's action
based on its finding that diversity jurisdiction was lacking. In our first
consideration of this case, we found that the district court committed
error in denying Miller's motion for misjoinder of a nondiverse plain-
tiff, and vacated and remanded for further proceedings.

On remand, the district court referred the matter to a magistrate
judge, who granted Miller's motion for misjoinder. At a status confer-
ence, however, the magistrate judge learned that Miller did not have
an ownership interest in the property at issue in the litigation, but was
attempting to assert his father, Gail Johnson's, ownership interest. At
a second status conference, Miller produced a deed showing that his
father had, since the first conference, deeded the property to him.
Although the magistrate judge found that there were unresolved
issues regarding the validity of the transfer, it found it unnecessary to
resolve them because it determined that, in any event, Miller held no
ownership interest in the property at the time he filed the action. Cit-
ing to cases holding that diversity must exist at the time a suit com-
mences, the magistrate judge found that jurisdiction could not be
supplied by events occurring after the filing of suit. Without noting

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which if any specific findings by the magistrate judge it was adopting,
the district court dismissed based on its finding that Miller lacked suf-
ficient standing to prosecute this action.

The district court's dismissal fails to account for Federal Rule of
Civil Procedure 17(a), which provides, in pertinent part:

          No action shall be dismissed on the ground that it is not
          prosecuted in the name of the real party in interest until a
          reasonable time has been allowed after objection for ratifica-
          tion of commencement of the action by, or joinder or substi-
          tution of, the real party in interest; and such ratification,
          joinder, or substitution shall have the same effect as if the
          action had been commenced in the name of the real party in
          interest.

Id.

The primary purpose of the rule is to protect a defendant against
a subsequent suit by the party actually entitled to relief. See Virginia
Elec. & Power Co. v. Westinghouse Elec. Corp., 435 F.2d 78, 84 (4th
Cir. 1973). It is also intended to prevent forfeiture of an action when
an understandable mistake has been made. See Fed. R. Civ. P. 17,
advisory committee note to 1966 Amendment. The rule clearly con-
templates that actions filed by persons lacking standing should not be
dismissed where the proper party can be found and substituted or
joined into the action. While the posture of this case is unusual in the
sense that the initiator of the suit lacking standing at the time of filing
and the potential real party in interest happen to be the same person,
the purposes of the rule are still best served by permitting the real
party in interest to prosecute the action.

If the conveyance of the property to Miller was valid, then he is the
real party in interest, for it is he, and not his father, who will have a
claim to the property at issue. Permitting Miller to prosecute will
therefore permit the district court's judgment relating to the title dis-
pute to have the proper res judicata effect. It will also prevent forfei-
ture and likely refiling of an action, already well developed, based on
an apparently inadvertent error. The record suggests that Miller mis-
takenly believed that he could pursue the action on his father's behalf

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-- either as his next friend or as his personal representative, even
though he apparently did not take the necessary steps to acquire such
status.

Rule 17 requires the district court, upon learning that the plain-
tiff(s) to an action failed to name the real party in interest, to provide
a reasonable period of time to cure the problem. See Shetterly v. Ray-
mark Indus., Inc., 117 F.3d 776, 785 (4th Cir. 1997). If the problem
is cured, the addition of the real party in interest relates back to the
commencement of the suit. See Fed.R.Civ.P. 17(a); O'Hara v. Dis-
trict No. 1-PCD, 56 F.3d 1514, 1519 (D.C. Cir. 1995). In this case,
the district court implicitly concluded that the absence of the real
party in interest at commencement of the suit was incurable. Because
this conclusion is contrary to law and because Miller may be the real
party in interest in this case, we vacate the order of the district court
and remand for further proceedings consistent with this opinion.* We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

VACATED AND REMANDED
_________________________________________________________________

*The record does not reveal any obvious problems relating to the
court's diversity jurisdiction. Miller is diverse to all defendants. More-
over, because the record indicates that Miller's father is a resident of
Washington state, like Miller, it does not appear that Miller brought the
action in his name rather than his father's name in order to create diver-
sity jurisdiction. Thus, there is no apparent basis for concluding that Mil-
ler attempted to improperly invoke the court's jurisdiction. See 28 U.S.C.
§ 1359 (1994). Absent such impropriety, we see no reason not to apply
the relation back provisions of Rule 17(a), and treat Miller as though he
were the real party in interest from the beginning of the suit, if the court
finds that Miller has a valid claim to the property at issue.




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