                   United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-3456
                                    ___________

Consul General of the Republic of      *
Indonesia,                             *
                                       *
             Plaintiff-Appellant,      *
                                       *
       v.                              *
                                       *
Bill’s Rentals, Inc.; Colton           *
Associates, Inc.; David Kevin          *
McGrath,                               *
                                       *
             Defendants-Appellees.     *
                                       *
_______________________                * Appeal from the United
                                       * States District Court for the
Colton Associates, Inc.;               * Southern District of Iowa.
David Kevin McGrath,                   *
                                       *
       Third Party Plaintiffs,         *
                                       *
v.                                     *
                                       *
Tiksno Widyatmoko,                     *
                                       *
       Third Party Defendant.          *
                                  ___________

                           Submitted: May 15, 2003
                              Filed: June 5, 2003
                               ___________

Before LOKEN, Chief Judge, FAGG and MURPHY, Circuit Judges.
                                     ___________

MURPHY, Circuit Judge.

       The Consul General of the Republic of Indonesia, Sojono Soerjoatmodjo (the
Consul General), brought this action to recover for the wrongful deaths of four
Indonesian nationals who were killed in a vehicle accident in Nebraska. Defendants
Bill’s Rentals, Inc., Colton & Associates, Inc.,1 and David Kevin McGrath moved to
dismiss the action on the basis that the Consul General was not the real party in
interest. The district court2 applied Iowa law and granted the motion. The Consul
General appeals, and we affirm.

       In September 1996, twelve Indonesian nationals, all students at the University
of Iowa, rented a van from defendant Bill’s Rentals. While pulling into a rest area
near Ogallala, Nebraska, the driver, Tiksno Widyatmoko, lost control of the vehicle
and struck the rear of a tractor trailer owned by defendant Colton & Associates and
operated by defendant McGrath in the course of his employment. At the time of the
accident, McGrath was parked on the right shoulder of the exit ramp in a posted no
parking zone. Five passengers in the van, including Augus Sudarso, Dwiyani
Kusumastuti, Wahyu Winarni, and Mohammad Toto Budaya, were killed as a result
of the accident and the remaining six passengers sustained injuries. The Consul
General filed a complaint in the Southern District of Iowa on August 28, 1998,
alleging that he was the legal representative of the victims of the accident and that the
Iowa Owner’s Consent statute, Iowa Code § 321.493 (2002), applied to the wrongful
death claims. Federal jurisdiction was alleged under 28 U.S.C. §§ 1332(a)(4), 1603.


      1
       Colton & Associates, Inc. appears as Colton Associates, Inc. in the caption
prepared in the district court.
      2
        The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.

                                          -2-
       On September 16, 1998, Colton & Associates and McGrath filed a motion to
strike and a supporting brief. They argued that assuming Iowa law applied, the
remedies for wrongful death were limited to the remedies provided by the Iowa
legislature. The Consul General would therefore have to qualify to bring the suit
under the Iowa wrongful death statute. On October 2, 1998, Bill’s Rentals filed its
motion to strike and a supporting brief, which objected to the Consul General’s
failure to qualify as the administrator of the estates of the deceased.

       In 1998, the Royal Insurance Company filed a declaratory judgment action
arising out of the accident in County Court of Keith County, Nebraska on behalf of
Bill’s Rentals. On November 20, 1998, the Nebraska court appointed a special
administrator, for the estates of Mohammad Toto Budaya, Wahyu Winarni, Augus
Sudarso, and Dwiyani Kusumastuti, for the limited purpose of receiving process and
protecting the decedents’ rights, pending appointment of a personal representative.
The Consul General applied to be appointed as substitute special administrator for the
estates in Nebraska; the substitution was approved by the Nebraska court on January
3, 2000.

       On February 17, 1999, the federal district court in Iowa entered an order for
hearing which identified certain issues for argument. These included whether the
Consul General was a real party in interest under Federal Rule of Civil Procedure
17(a), whether the Nebraska probate court had appointed an administrator for any
estate, whether the Consul General was serving as administrator for any estate, and
why the Consul General brought this suit in his name rather than in the names of the
deceased individuals and their estates. The district court entered an order on March
10, 1999, granting the parties 45 days to conduct discovery on specified topics,
including the real party in interest issue. Colton & Associates and McGrath renewed
their motion to dismiss on June 1, 1999, alleging that the Consul General had not
been appointed the administrator of any of the estates and was therefore not a real
party in interest. On June 16, Bill’s Rentals filed its supplemental brief renewing its

                                         -3-
motion to dismiss; its brief pointed out that both Nebraska and Iowa law require that
wrongful death claims be brought by a personal representative of the deceased’s
estate, and that the Consul General did not qualify as a personal representative for the
students under the law of either state.

       The district court entered its order granting summary judgment to all
defendants on April 6, 2000, concluding that the Consul General was not a real party
in interest under Iowa law. The court dismissed with prejudice because it found that
the Consul General had had reasonable time to qualify as a personal representative
of the students and to amend the complaint to comply with Rule 17(a), but had failed
to do so. Because Iowa substantive law applied, the defect could not be cured even
if the Consul General were to amend his complaint because Iowa does not permit
amendments to relate back to the time of the original filing. On April 17, 2000, the
Consul General filed his motion to amend the findings and judgment, now arguing
that he had the power to maintain a wrongful death action as a foreign fiduciary. The
district court denied the motion to amend on August 7, 2000.

      The Consul General appeals from the district court’s order granting summary
judgment to the defendants. He argues that the district court erred in its choice of
Iowa law because Nebraska is the state with the most significant relationship to the
causes of action. He also argues that the district court erred when it determined that
he was not a real party in interest under the Vienna Convention on Consular Relations
and by dismissing his complaint with prejudice, by not allowing him time to amend
to comply with the requirements of Rule 17(a), and by determining that any
amendment would be futile because Iowa law does not allow for relation back of
amendments. He contends that this court should remand the case to give him the
opportunity to open estates for the deceased students and to amend his complaint
accordingly.




                                          -4-
       Appellees respond that there is no conflict of law since the Consul General fails
to qualify as a real party in interest under either Iowa or Nebraska law, but that if
there is a conflict, the district court properly determined that Iowa law applies.
Appellees also contend that the district court was correct in determining that the
Vienna Convention on Consular Relations did not qualify the Consul General as a
real party in interest because under the Convention he must proceed “in accordance
with the laws and regulations of the receiving state,” including Rule 17(a) of the
Federal Rules of Civil Procedure. Vienna Convention on Consular Relations, April
24, 1963, art. 5, 21 U.S.T. 77, T.I.A.S. No. 6820. Finally, appellees argue that the
district court did not err in dismissing the Consul General’s complaint with prejudice
because he had ample time to cure the defect after he learned of their objection under
Rule 17(a), but refused to do so in the approximately 18 months between the time the
objection was first raised and the time of summary judgment. They point out that in
addition the Consul General had interfered with the rights of the personal
administrator for the estate of Sundari Widiatmo, one of the deceased students. The
Consul General contended that he represented her estate despite the fact her husband
had opened an estate for her in Iowa, and he sent a letter to her husband stating that
any damages the estate recovered would have to be shared with the Consul General
and all other students involved in the accident.

       We review a grant of summary judgment de novo applying the same standard
as the trial court. See JN Exploration & Prod. v. Western Gas Res., Inc., 153 F.3d
906, 909 (8th Cir. 1998). Rule 17(a) provides: “[e]very action shall be prosecuted in
the name of the real party in interest.” Fed. R. Civ. P. 17(a). The real party in interest
is a party who, under governing substantive law, possesses the rights to be enforced.
See Iowa Public Serv. Co. v. Medicine Bow Coal Co., 556 F.2d 400, 404 (8th Cir.
1977). “In a diversity action, state law determines the issue of who is a real party in
interest.” Jaramillo v. Burkhart, 999 F.2d 1241, 1246 (8th Cir. 1993). The parties
disagree over whether there is a conflict between the laws of Iowa and of Nebraska
and which law controls the legal issues involved in this case.

                                           -5-
       Before considering any issues of conflict of laws, we must first determine
whether “‘there actually is a difference between the relevant laws of the different
states.’” Phillips v. Marist Soc’y of Washington Province, 80 F.3d 274, 276 (8th Cir.
1996) (quoting Barron v. Ford Motor Co. of Canada, Ltd., 965 F.2d 195, 197 (7th Cir.
1992)). Under Nebraska’s wrongful death statute, an action for wrongful death ‘shall
be brought by and in the name of the person’s personal representative for the
exclusive benefit of the widow or widower or next of kin.” Neb. Rev. St. § 30-810
(2002). Personal representative includes “executor, administrator, successor personal
representative, special administrator, and person who perform substantially the same
function under the law governing their status.” Id. § 30-2209(33) (2002). Iowa law
requires that wrongful death claims be brought “by … the legal representative or
successors in interest of the deceased,” Iowa Code § 611.22 (2002), for the benefit
of the estate. See Estate of Dyer v. Krug, 533 N.W.2d 221, 224 (Iowa 1995). The
Iowa Supreme Court has “consistently held that the right to recover wrongful death
damages vests exclusively in the estate representative.” Id. The estate representative
vested with the power to bring the claim includes a personal representative, executor,
and administrator. See Iowa Code § 633.3 (2002); In re Estate of Voss, 553 N.W.2d
878, 881 (Iowa 1996); Dyer, 533 N.W.2d at 224.

       Under either state’s law, the Consul General must establish that he is the
personal representative of the deceased students’ estates and that he brought this suit
for the benefit of those estates. We therefore conclude that there is no conflict
between the laws of Iowa and Nebraska as to whether the Counsel General qualifies
as a real party in interest, and we need not conduct a choice of law analysis.

        The Consul General argues that he qualifies as a personal representative and
is entitled to bring the suit because he was appointed as special administrator for the
students in the declaratory judgment action in Nebraska. While Nebraska does
include special administrator in the list of persons who qualify as a personal
representative, see Neb. Rev. St. § 30-2209(33) (2002), it applies different rules to

                                         -6-
special administrators who are appointed informally as opposed to those appointed
formally. See Neb. Rev. St. §§ 30-2457, 30-2459, 30-2460 (2002). The initial
appointment of the special administrator for the estates of the deceased students was
done formally, after which the Consul General formally applied to be appointed as
substitute special administrator. His status is therefore governed by Nebraska law
relating to formally appointed special administrators, which provides that “[a] special
administrator appointed by order of the court in any formal proceeding has the power
of a personal representative except as limited in the appointment and duties as
prescribed in that order.” Neb. Rev. St. § 30-2460 (2002). The original orders
appointing the special administrator for the students’ estates stated that the special
administrator was to serve “with the limited power and for the sole purpose of receipt
of process relating to Petitioner’s Declaratory Judgment action and to pursue and
protect Decedent’s rights relative to the Petitioner’s Declaratory Judgment action
pending appointment of a personal representative.”

       The order approving the substitution of Consul General for the previous special
administrator did not explicitly broaden the powers given in the original order. Thus,
the Consul General’s powers as special administrator were limited to dealing with
process and other issues arising out of the Royal Insurance Company’s declaratory
judgment action. He was not authorized as a personal representative to bring the
wrongful death claims in the Southern District of Iowa under either Nebraska or Iowa
law since both states require that the party bringing the suit be more than a limited
purpose special administrator. As a result, the Consul General did not qualify as a
real party in interest at the time of the district court’s grant of summary judgment,
even though he had been substituted as special administrator in the Nebraska probate
court proceeding.

      The Consul General argues, however, that the Vienna Convention on Consular
Relations permits him to represent the students’ interests and qualifies him as a real
party in interest regardless of state law on the issue. He contends that under

                                         -7-
international law and treaties, consuls general have broad powers to represent the
legal interests of absent countrymen, that they have the power to act as “international
attorneys-in-fact” for their countrymen, and that this right has been recognized by the
United States Supreme Court. He maintains that these rights have been codified and
ratified in the Vienna Convention on Consular Relations.

      Subsections (g) and (i) of Article 5 of the Vienna Convention state that
consular functions consist of:

      (g) safeguarding the interests of nationals, both individuals and bodies
      corporate, of the sending State in cases of succession mortis causa in the
      territory of the receiving State, in accordance with the laws and
      regulations of the receiving State;

      (i) subject to the practices and procedures obtaining in the receiving
      State, representing or arranging appropriate representation for nationals
      of the sending State before the tribunals and other authorities of the
      receiving State, for the purpose of obtaining, in accordance with the
      laws and regulations of the receiving State, provisional measures for the
      preservation of the rights and interests of these nationals, where because
      of the absence or any other reason, such nationals are unable at the
      proper time to assume the defence of their rights and interests.

Vienna Convention on Consular Relations, April 24, 1963, art. 5, 21 U.S.T. 77,
T.I.A.S. No. 6820. While the Vienna Convention does allow the Consul General to
represent the interests of the Indonesian students, in performing this function he is
required to act in accordance with the laws and regulation of the receiving State, the
United States, and is subject to the practice and procedures obtaining in the United
States.

      In diversity cases the state law regarding real party in interest applies. See
Jaramillo, 999 F.2d at 1246. Neither Iowa nor Nebraska law prevents the Consul
General from being appointed personal representative or administrator for the

                                         -8-
deceased students’ estates. They merely require that he be so appointed before he
may bring such wrongful death claims. These laws are not inconsistent with the
Vienna Convention or the broad powers afforded the Consul General because he
could have acted as international attorney in fact for these students if he had not
brought the case in his own name, if he secured appointment as personal
representative for the deceased students within a reasonable time after learning of the
real party in interest objection, and if he had timely amended the complaint to cure
its defects. Thus we find that application of state law in this case does not violate the
Vienna Convention. The district court did not err in ruling that the Consul General
was not a real party in interest.

       Alternatively, the Consul General argues that if this court determines that he
has not already qualified as a real party in interest under the Vienna Convention or
state law, we should remand to the district court to allow him reasonable time to be
appointed as personal representative for the deceased students and amend the
complaint to reflect this appointment. Rule 17(a) states that “[n]o 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 ratification of
commencement of the action by, or joinder or substitution of, the real party in
interest.” Fed. R. Civ. P. 17(a).

       Although the Consul General contends that he should be granted a reasonable
time to cure the defect after a real party in interest objection is sustained, the rule
states that a plaintiff should be afforded reasonable time to amend after objection.
The Consul General was aware of the objection concerning real party in interest at
least 18 months prior to the district court’s ruling on the issue. During that time he
had ample opportunity to open estates for the deceased students and be appointed as
personal representative. He should have known that doing so was necessary to
continue with the case after the parties conducted discovery on this issue in March
1999. This district court did not grant summary judgment until April 2000. Because

                                          -9-
the Consul General had the opportunity to become a real party in interest and amend
the complaint, but purposely chose not to do so, we find that the district court did not
err in dismissing the complaint with prejudice.

      Accordingly, we affirm the judgment of the district court.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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