The dismissal is without prejudice. Van Sickle v. Fifth Third Bancorp, No. 12-11837, 2012 WL 3230430, at *3 (E.D. Mich. Aug. 6, 2012) (citing Biesek, 440 F.3d at 413-14 (acknowledging harm that befalls creditors when court attaches preclusive effect to dismissal of undisclosed claims bankruptcy debtor later attempts to raise)); accord In re Peregrin, No. 12 A 1464, 2012 WL 5939266, at *6 (Bankr. N.D.Ill. Nov. 28, 2012).

Despite the plain language of Rule 17, some courts have recognized that “it does not apply to every case brought by an inappropriate plaintiff.” See, e.g., Barefield 521 B.R. 805, 810 (citing cases holding that when the proper party is not difficult to determine and there has been no understandable mistake, dismissal is warranted despite the language); see also Van Sickle v. Fifth Third Bancorp, No. 12-11837, 2012 WL 3230430, at *3 (E.D. Mich. Aug. 6, 2012) (dismissing because it was “clearly established” that the bankruptcy trustee was the real party in interest for the plaintiff's pre-bankruptcy claims, the determination of the proper party was not difficult and the plaintiff did not make an excusable mistake that warranted application of Rule 17(a)(3)); Rodriguez v. MustangMfg. Co., No. 07-CV-13828, 2008 WL 2605471 (E.D. Mich. June 27, 2008) (dismissing because two years had passed since the plaintiff's bankruptcy was closed and the plaintiff did not make a reasonable mistake in pursuing the action under his own name where the law “clearly demonstrated” that the trustee was the real party in interest).

But because Clift cannot show understandable mistake that excuses his failures to disclose the OSHA Complaint in the Bankruptcy or decision to sue BNSF in his own name, this lawsuit must be dismissed. Accord Wulff v. CMA, Inc. , 890 F.2d 1070, 1074-75 (9th Cir. 1989); In re PPA Prods. Liab. Litig., 2006 WL 2136722 at *3-4 (W.D. Wash. 2006) (failure to schedule claims/read petition before signing not "understandable mistake" despite Plaintiff's alleged cognitive impairment); Van Sickle v. Fifth Third Bancorp., 2012 WL 3230430 at *3 (E.D. Mich. 2012) (Rule 17(a)(3) "inapplicable" as trustee's exclusive standing to pursue claims belonging to bankruptcy estate is "clearly established"). Absent understandable mistake, Rule 17(a)(3) does not apply - joinder or substitution of the Trustee would not relate back to date of the Complaint and any FRSA claim is therefore time barred.

Thus, In re Hill is inapplicable. In conclusion, the trustee could not have abandoned the claims against Appellees, and the Bakers' argument that they "were severely prejudiced in that they were denied their right to fairly address the [abandonment] issue" has no merit. Doc. 35 at 13; see also Van Sickle v. Fifth Third Bancorp., 12-11837, 2012 WL 3230430, at *2 (E.D. Mich. Aug. 6, 2012) (finding it "clear from the bankruptcy record that the trustee did not abandon [the debtors'] claims" where the claims were not scheduled and there had been no notice or hearing). For the foregoing reasons, the bankruptcy court correctly determined that the Bakers lacked standing to bring their claims against Appellees. I therefore recommend that the Court AFFIRM this ruling.

And courts have dismissed claims in factually similar situations if substitution would not achieve the purposes of Rule 17(a)(3). See, e.g., Van Sickle v. Fifth Third Bancorp, No. 12–11837, 2012 WL 3230430, at *3 (E.D.Mich. Aug. 6, 2012) (dismissing on the grounds that because it was “clearly established” that the bankruptcy trustee was the real party in interest for the plaintiff's pre-bankruptcy claims, the determination of the proper party was not difficult and the plaintiff did not make an excusable mistake that warranted application of Rule 17(a)(3)); Rodriguez v. Mustang Mfg. Co., No. 07–13828, 2008 WL 2605471, at *3–4 (E.D.Mich. June 27, 2008) (dismissing because two years had passed since the plaintiff's bankruptcy was closed and the plaintiff did not make a reasonable mistake in pursuing the action under his own name where the law “clearly demonstrated” that the trustee was the real party in interest).

6A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, & Richard L. Marcus, Federal Practice and Procedure § 1555 (3d ed.). Defendant relies on two cases: Van Sickle v. Fifth Third Bancorp, No. 12-11837, 2012 WL 3230430 (E.D. Mich. Aug. 6, 2012) and Rodriguez v. Mustang Mfg. Co., No. 07-13828, 2008 WL 2605471 (E.D. Mich. June 27, 2008). In Van Sickle, the plaintiffs' complaint alleged that they acquired their claims against the defendant prior to filing for bankruptcy.

On the other hand, the Court observes that a number of district courts facing similar decisions still ultimately decided Rule 17(a)(3) had not been met and dismissal was appropriate. See Rodriguez v. Mustang Mfg. Co., 07-CV-13828, 2008 WL 2605471, at *3-4 (E.D. Mich. June 27, 2008) (determining Rule 17(a)(3) had not been met because, among other things, the debtor had already been given a reasonable amount of time when he had at least two years to ascertain the real party in interest prior to his request, further delay was prejudicial to the defendant given concerns about the availability of evidence for discovery since nearly four years had passed since the injury, and the plaintiff's conduct was not the result of a "reasonable mistake"); see also Van Sickle v. Fifth Third Bancorp, 12-11837, 2012 WL 3230430 (E.D. Mich. Aug. 6, 2012) (concluding Rule 17(a)(3) should not be applied and the case should be dismissed without prejudice because there was no excusable mistake when it was "clearly established that the instant claims belonged to Van Sickle and the Marina's bankruptcy estates, and the trustee is the real party in interest"). Here, Ms. Auday contends the Trustee can proceed as a party in this case under Rule 17(a)(3) because he explicitly ratified her lawsuit before it was filed and subsequently filed affidavits to reaffirm his ratification.

Wright, Miller & Kane, Federal Practice and Procedure, § 1555, n. 13 and accompanying text (citations omitted). For example, in Van Sickle v. Fifth Third Bancorp, 2012 WL 3230430 (E.D. Mich. 2012), the district court declined to allow such a substitution, explaining: Neither is the court required to provide Van Sickle and the Marina additional time to reopen their bankruptcy proceedings and determine whether the trustee wishes to be substituted as the real party in interest.

Questions about who is the proper plaintiff to pursue a claim belonging to a bankruptcy estate, the debtor or the trustee, are questions under Rule 17(a) about who is the real party in interest. See, e.g., Lujano v. Town of Cicero, No. 07 C 4822, 2012 WL 4499326, at *5 (N.D. Ill. Sept. 28, 2012); Van Sickle v. Fifth Third Bancorp, No. 12-11837, 2012 WL 3230430, at *2-*3 (E.D. Mich. Aug. 6, 2012); Garcia v. American Security Ins. Co., No. 8:12-cv-00728-EAK-EAJ, 2012 WL 2589862, at *1-*2 (M.D. Fla. July 3, 2012). Although these questions do concern standing, they are not constitutional and so are not jurisdictional.