                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



  EMPIRE LOFTS CONDOMINIUM
  ASSOCIATION,

                           Plaintiff,
                  v.                                   Civil Action No. 15-792 (ESH)

  A.C.&R. FOAM INSULATORS, LLC,

                          Defendant.



                          MEMORANDUM OPINION AND ORDER

       Defendant has moved to dismiss plaintiff’s amended complaint—or in the alternative, to

identify Erie Insurance Company (“Erie”) as the proper plaintiff—on the grounds that Erie was

subrogated to plaintiff’s interest in this litigation when it compensated plaintiff for its alleged

losses. (See Def.’s Mot. to Dismiss [ECF No. 9-1] at 2.) As a result, defendant argues, this

action has not been prosecuted in the name of the real party in interest in violation of Federal

Rule of Civil Procedure 17. (See id. at 5.) In response, plaintiff impugns defendant’s motives

for filing its motion, but it implicitly acknowledges that it has been compensated at least in part

by Erie, and that, at bottom, this is “a subrogation claim.” (See Pl.’s Opp’n [ECF No. 10] at 1-3.)

Plaintiff instead argues that defendant would suffer “absolutely no prejudice . . . by proceeding

in this action against plaintiff,” while nonetheless offering to name Erie as a co-plaintiff if the

Court deems it appropriate. (Id. at 3 & n.5.)

       Defendant is correct that “[t]he general rule in the federal courts is that if the insurer has

paid the entire claim, it is the real party in interest and must sue in its own name.” See Wright &
Miller, 6A Fed. Prac. & Proc. Civ. § 1546 (3d ed.); see also Link Aviation, Inc. v. Downs, 325

F.2d 613, 614 (D.C. Cir. 1963) (“It is undisputed that when an insurer has paid the full amount of

a loss suffered by the insured, the insurer becomes subrogated to the full extent of the insured’s

claim against the one primarily liable for the loss, and that in any suit to enforce the claim the

insurer is the only real party in interest.”). On the other hand, if the insurer has paid only part of

the loss, then both insurer and insured retain a stake in the litigation and are real parties in

interest. See Wright & Miller, 6A Fed. Prac. & Proc. Civ. § 1546 (3d ed.). The difficulty for the

Court is that plaintiff’s opposition does not indicate whether it has been compensated in full or in

part by Erie. Defendant has submitted documents suggesting that plaintiff has been paid for all

of its losses—with the possible exception of a $500 deductible (see Ex. 3 to Def.’s Mot. to

Dismiss [ECF No. 9-2])—but without clarification from plaintiff, the Court cannot definitively

rule on this issue.

        If plaintiff has been fully compensated, then its complaint must be dismissed under Rule

17 unless Erie timely moves to substitute itself as plaintiff. See Link Aviation, 325 F.2d at 615. 1

At this time, however, the Court declines to exercise its discretion and dismiss plaintiff’s

complaint under Rule 17(a)(3). See Siemens USA Holdings, Inc. v. United States, 960 F. Supp.

2d 221, 225 (D.D.C. 2013) (offering the real party in interest ten days to substitute itself as

plaintiff before it would dismiss the complaint outright). Discovery is still ongoing, and

defendant has not argued that it would be prejudiced by substitution of Erie as plaintiff; in fact, it

has sought precisely this relief in the alternative. (See generally Def.’s Mot. to Dismiss.)

Moreover, “it is appropriate to liberally grant leave to substitute a real party in interest when



1
  Although plaintiff has itself offered to name Erie as a co-plaintiff (Pl.’s Opp’n at 3 n.5), and the
record suggests that plaintiff’s counsel also represents Erie (see Ex. 2 to Def.’s Mot. to Dismiss),
Erie is not currently a party to this litigation.
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there has been an honest mistake in choosing the nominal plaintiff.” Lans v. Gateway 2000, Inc.,

84 F. Supp. 2d 112, 120 (D.D.C. 1999). Defendant insinuates that plaintiff’s “puzzling” decision

to bring the suit in its own name was improperly motivated (see Def.’s Mot. to Dismiss at 7), but

even assuming that plaintiff lacks any interest in the action, the Court will not go so far as to find

bad faith on the record before it (see Ex. 5 to Def.’s Mot. to Dismiss (letter in which plaintiff’s

counsel professes unawareness of any requirement that the suit be brought in Erie’s name)). 2

        On the other hand, if plaintiff does retain a partial interest in the litigation, then under

Rule 17 plaintiff may prosecute this action on its own behalf. See Wright & Miller, 6A Fed.

Prac. & Proc. Civ. § 1546 (3d ed.); City Stores Co. v. Lerner Shops of D.C., Inc., 410 F.2d 1010,

1012 (D.C. Cir. 1969). In that case, however, Erie’s joint interest in the litigation would make it

a necessary party that must be joined under Rule 19(a), as long as it is subject to service of

process and joinder would not destroy subject-matter jurisdiction. See United States v. Aetna

Cas. & Sur. Co., 338 U.S. 366, 381 (1949); Krueger v. Cartwright, 996 F.2d 928, 932-33 (7th

Cir. 1993). 3 A necessary party that refuses to join voluntarily as co-plaintiff must be made “a

party defendant by process, and [it] will be lined up by the court in the party character which [it]

should assume.” See Indep. Wireless Tel. Co. v. Radio Corp. of Am., 269 U.S. 459, 468 (1926);




2
  Nevertheless, given that this is now the parties’ second procedural dispute in as many months
(see Nov. 18, 2015 Minute Order), the Court strongly encourages both parties to devote more
energy to resolving the merits of this litigation, rather than wasting any more time and money
squabbling over unnecessary procedural issues.
3
  Plaintiff’s arguments to the contrary focus on whether Erie is an indispensable party under Rule
19(b), an analysis that is only relevant if joinder is not feasible under Rule 19(a), i.e., if the party
is not subject to service or if joinder would destroy diversity jurisdiction. See Virginia Elec. &
Power Co. v. Westinghouse Elec. Corp., 485 F.2d 78, 85 (4th Cir. 1973) (“It is clear that a partial
subrogee is a person to be joined if feasible under Fed.R.Civ.P. 19(a).”). The Court is not aware
of any facts suggesting that joinder is not feasible, so plaintiff’s arguments miss the mark.
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Balistreri v. Richard E. Jacobs Grp., Inc., 221 F.R.D. 602, 605 (E.D. Wis. 2004). Therefore, it is

hereby

         ORDERED that defendant’s motion to dismiss is DENIED WITHOUT PREJUDICE.

It is further

         ORDERED that plaintiff shall immediately provide its insurer with a copy of the instant

Order. It is further

         ORDERED that, if plaintiff has been compensated in full, its complaint will be

dismissed unless Erie has moved to substitute itself as plaintiff on or before January 20, 2016. It

is further

         ORDERED that, if plaintiff has been compensated in part, and if Erie has not voluntarily

moved to join the litigation on or before January 20, 2016, plaintiff shall serve Erie with process

making it a defendant in this action on or before January 29, 2016, and the Court will then

designate Erie as a co-plaintiff. If Erie has any objections to joinder, it must file those with the

Court within ten days after service has been effected.

         To the extent plaintiff fails to comply with this Order, its complaint will be dismissed

with prejudice on February 1, 2016.

         SO ORDERED.


                                                               /s/ Ellen Segal Huvelle
                                                               ELLEN SEGAL HUVELLE
                                                               United States District Judge

Date: January 7, 2016




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