07-3984 RK Co. v. See

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Civil Procedure
Real party in interest; waiver

An objection that the plaintiff is not the real party in interest must be timely made or it is waived.
“The allowance of a reasonable time for the correct party to step into the plaintiff’s role suggests that an ‘objection will be raised when such joinder is practical and convenient.’ Gogolin & Stelter v. Karn’s Auto Imports, Inc., 886 F.2d 100, 102 (5th Cir. 1989); see also 6A Wright, Miller & Kane, Federal Practice and Procedure § 1554 (3d ed. 2008) (‘Regardless of what vehicle is used for presenting the objection . . . it should be done with reasonable promptness.’). Other circuit courts have held that the defense is waived if it is first raised during or shortly before trial. See, e.g., Rogers v. Samedan Oil Corp., 308 F.3d 477, 483 (5th Cir. 2002); United HealthCare Corp. v. Amer. Trade Ins. Co., 88 F.3d 563, 569 (8th Cir. 1996) (waived when first raised at pretrial conference); Allegheny Int’l v. Allegheny Ludlum Steel Corp., 40 F.3d 1416, 1431 (3d Cir. 1994); Whelen v. Abell, 953 F.2d 663, 672-73 (D.C. Cir. 1992); United States ex rel. Reed v. Callahan, 884 F.2d 1180, 1183 n.4 (9th Cir. 1989); Hefley v. Jones, 687 F.2d 1383, 1388 (10th Cir. 1982) (waived when first raised sixteen days before trial). In Weissman v. Weener, we observed that our legal system is ‘not geared to having judges take over the function of lawyers even when the result would be to rescue clients from their lawyers’ mistakes,’ in acknowledging that other circuits have found Rule 17(a) to be an affirmative defense that can be waived. 12 F.3d 84, 86 (7th Cir. 1993) (citations omitted). Today, we too hold that ‘real party in interest’ is a defense subject to waiver. We review the factual determinations upon which a court predicates a finding of waiver for clear error and the legal question of whether the conduct amounts to waiver de novo. e360 Insight v. Spamhaus Project, 500 F.3d 594, 599 (7th Cir. 2007); Ernst & Young LLP v. Baker O’Neal Holdings, Inc., 304 F.3d 753, 756 (7th Cir. 2002).”

Affirmed.

07-3984 RK Co. v. See

Appeal from the United States District Court for the Northern District of Illinois, Keys, Mag. J., Williams, J.

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