In a case of first impression, the U.S. Court of Appeals for the Ninth Circuit has held that when a person is deceased and no estate is opened, there is no Article III standing to name him or her as a party. The court in LN Mgmt., LLC Series 5664 Divot v. JPMorgan Chase Bank, N.A. held that the dead lack the required capacities a litigant must have to establish a case or controversy. ABA Section of Litigation leaders observe that the court was concerned about a paper adversary and the impact suing a dead person would have on the living.
October 01, 2020 Top Story
The Dead Cannot Join Litigation
Absent an open estate, courts must dismiss actions against deceased parties
By Josephine M. Bahn
Court Denies Plaintiff Right to Name Deceased Party, Dismisses Claim
Kit Dansker bought a home in 2003 with an $83,000 mortgage. The mortgage was then sold to Fannie Mae. Dansker died in 2009, and in 2011 her property was sold in foreclosure to a management company. The mortgage holders then challenged that foreclosure arguing that it violated federal foreclosure rules. In 2013, the management company filed a quiet title action in state court against Dankser and the successor to the original mortgage holder. A few months after it filed that action, the management company filed a suggestion of death. It also moved to name the Estate of Dansker as a defendant, even though “no one had effectuated any probate action.”
The case was removed to federal court. The district court held that Dansker had been fraudulently joined, and it denied a request to substitute Dansker’s estate, reasoning that the foreclosure had removed her right to the property.
Deceased Parties Cannot Be Sued
On appeal, the Ninth Circuit noted that even though the district court had allowed several months of jurisdictional discovery, the management company still had not identified a representative of Dansker’s estate. Instead, it sought to serve an alleged beneficiary of Dansker’s estate as if she had been a representative. The court observed that while the management company had known of Dansker’s death for five years, it had neither found an estate representative nor made any effort to have one appointed. The “Estate of Kit Dansker” only had meaning insofar as the machinery of state court had been set into motion for a representative, it reasoned, and without any, the management company’s request to name the estate was “clearly improper.”
The court then turned to the propriety of naming a dead person as a party in the absence of an opened estate and found it “self-evident” that the dead cannot be sued or sue. The court distinguished cases where attorneys either did not know the opposing party was deceased or an attorney made a mistake as they raced to meet a court deadline. Because those cases revolved around whether substituting an estate was the proper procedure, those substitution questions did not apply. “In all events,” the court said, “the consensus of our sister courts is unanimous: you cannot sue a dead person.” While this seemed obvious, the court reasoned that “sometimes stating the obvious is necessary.”
It reasoned that there were “sound logical reasons” not to allow suits against the dead, including an injustice occurring against the deceased, injustices against the living, and a potential deprivation of the living’s due process rights—the latter being what could occur in the instant case. Accordingly, the court vacated the trial court’s order and remanded the case for further proceedings.
Avoiding Injustice
ABA Section of Litigation leaders distinguish litigants that are deceased at the outset of an action, like Dansker was, from those that die during the course of the litigation. “Courts don’t like manufactured controversies or straw disputants,” notes William T. Hangley, Philadelphia, PA, cochair of the Section of Litigation’s Federal Practice Task Force. “It’s a life and death difference, in the one case there is an actual dispute with an actual person. If that person dies, there are procedures for continuing (in some instances), but we know the controversy was already there. In the Dansker situation, there is either no controversy with a Dansker or an attempt to moot one by fighting with a paper adversary,” Hangley suggests.
Another leader suggests that the court was concerned with potential outcomes a case against a deceased person could have against the living. “The Court was obviously troubled by the failure of the management company to know the difference between a dead person and an estate, who have no legal existence, and the executor or representative of an estate (or next of kin), who is a live person, a proper party with a residence for jurisdictional purposes, and who can litigate or defend the financial interests of the deceased,” notes Jeffrey J. Greenbaum, Newark, NJ, cochair of the Section’s Federal Practice Task Force.
“The Ninth Circuit also observed that if lawsuits against the dead were allowed, injustice to the living would result. For instance, heirs of a dead person could be harmed if a plaintiff sues a dead person rather than a court-appointed personal representative of the deceased’s estate. Indeed, where a party sues only a dead person, there are likely to be basic notice issues—as heirs of an estate or the estate’s personal representative may end up having no notice that a litigant is attempting to secure the property of the deceased.,” says Marco A. Pulido, Costa Mesa, CA, member of the Appellate Practice Committee.
Josephine M. Bahn is an associate editor for Litigation News.
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Related Resources
- Kenneth House v. Mitra QSR KNE LLC, No. 18-1778 (4th Cir. 2019).
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