Opinion
1:01CV74-C
September 21, 2001
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon defendant Sedgewick James of Carolinas' (hereinafter "defendant") Motion for Summary Judgment and the court's sua sponte motion to dismiss. By Order filed August 14, 2001, plaintiff, who is proceeding pro Se, was (1) advised of her burden in responding to both motions, (2) informed of the court's concern as to her standing to bring the action without counsel, and (3) allowed 15 days to file a response. Plaintiff did not respond in any manner, but defendant filed a supplemental brief concerning whether plaintiff could maintain this action pro Se.
The undersigned concludes that plaintiff, Sheila Penland Olvera, in attempting to represent the Estate of Rigoberto Olvera Brinones pro Se, is proceeding in a manner not consistent with North Carolina or federal law. While individuals have a right to represent their own interests in a court of law without the assistance of counsel, they have no right to represent the interest of any other person or legal entity. It appears under the relevant law this court can find and that cited by defendant that the legal interests of an "estate," as a matter of federal and state law, cannot be pursued in court by an administrator proceeding pro se.
Third, and most important, this case cannot be prosecuted on a pro se basis. Estates cannot represent themselves.
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Appearances in federal court are governed by 28 U.S.C. § 1654. Section 1654 permits parties "[i]n all of the Courts of the United States . . . [to] plead and manage their own causes personally or by the assistance of counsel or attorneys at law." 28 U.S.C. § 1654. This section, enacted to enforce the Sixth Amendment's right to counsel, guarantee[s] a choice between representation by counsel and the traditional practice of self-representation." See Faretta v. California, 422 U.S. 806, 825, 834, 95 S.Ct. 2525, 2536, 2541 (1975). The right to self-representation, however, has been interpreted to mean that only individuals (or natural persons) have a right to represent themselves and that an individual can represent only himself; it by no means affords a right to lay representation by someone (even an agent) other than one's self. See Osborne v. Bank of the United States, 22 U.S. (9 Wheat.) 326, 365-66, 6 L.Ed. 204 (1824) ("A corporation, it is true, can appear only by attorney, while a natural person may appear for himself."); Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423, 1427 (7th Cir. 1985) ("A "corporation' is an abstraction, and abstractions cannot appear pro se."); United States v. Taylor, 569 F.2d 448, 451 (7th Cir. 1978) (constitutional right to assistance of counsel does not include right to representation by persons unlicenced to practice law); United States v. Peterson, 550 F.2d 379, 381-82 (7th Cir. 1977) (Faretta "does not hold that a defendant has the freedom of choice to select a non-licenced person as his counsel."); McShane v. United States, 366 F.2d 286 (9th Cir. 1966) (pro se petitioner could act on his own behalf but not on behalf of other class members).
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Like a corporation, an estate can only act through an agent; in this case, an administrator. An estate by its very nature cannot represent itself and, therefore, must be represented by a licensed attorney, regardless of the relation between the administrator and the decedent. To permit an unlicenced lay administrator to appear pro se would be to permit the unauthorized practice of law. I cannot do so.McCants v. Village of Broadview, 1994 WL 117478, 1-2 (N.D. III. 1994).
Like a number of issues that surround Section 1983, the question of who may recover damages under 42, United States Code, Section 1983, is governed by state law. Bowling v. Oldham, 753 F. Supp. 588, 591 (M.D.N.C. 1990). In accordance with Chapter 28A-13-3 (23) of the North Carolina General Statutes, the personal representative of a decedent's estate has the exclusive authority to seek damages for that decedent's death, and in accordance with Chapter 28A-18-2(a), damages recovered by the personal representative are then distributed to the decedent's beneficiaries in accordance with the Intestate Succession Act. North Carolina's highest court has held that "the real party in interest is the beneficiary under the statute for whom recovery is sought, and not the administrator." In Re Ives' Estate, 248 N.C. 176, 181 (1958) (citation omitted). The first level of intestate beneficiaries includes both the decedent's spouse and children. N.C. Gen. Stat. § 29-14 15.
Defendant has submitted the decedent's obituary as an exhibit to its response. That obituary indicates that plaintiff's decedent was survived by two children, in addition to his wife, Sheila Penland Olvera. In accordance with North Carolina law, such surviving children are, along with Mrs. Olvera, the real parties in interest, and the issue becomes whether Sheila Penland Olvera can pursue the legal interests of her children in this court without the assistance of counsel. The overwhelming weight of authority answers this question "no." Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997); Meeker v. Kercher, 782 F.2d 153 (10th Cir. 1986). The Court of Appeals for the Second Circuit held, as follows:
[The] representative of the estate may not proceed pro se in an action by the estate where the estate has beneficiaries or creditors other than the representatives," because such an action "cannot be described as the litigants own, because [the interests of others] . . . will be affected by the outcome of the proceedings.Iannaccone v. Law, 142 F.3d 553 559 (2nd Cir. 1998). While an argument could be made that plaintiff could proceed forward if she were the sole beneficiary of the estate, see Diamantis v. Judd-Falk, Inc., 125 F.R.D. 396 (S.D.N.Y. 1989), if this court were to allow her to proceed to judgment in this matter pro Se, she would be placing at risk other legal interests than her own. To allow her to proceed further without counsel would be to countenance the unauthorized practice of law, which is a criminal offense in North Carolina, punishable as a Class 1 misdemeanor. N.C. Gen. Stat. § 84-4 8. The undersigned will recommend that defendants' Motion for Summary Judgment be denied without prejudice as nonjusticiable and that the court's own motion to dismiss be granted and this action dismissed without prejudice as to refiling by an attorney licensed to practice in this court.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that defendant Sedgwick James of Carolinas' Motion for Summary Judgment be DENIED without prejudice as nonjusticiable, that the court's own motion to dismiss be GRANTED, and that this action be DISMISSED without prejudice as to refiling by an attorney licensed to practice in this court.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 u.s. 140 (1985), cert. denied, 474 U.S. 1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984).
This Memorandum and Recommendation is entered in response to defendant Sedgwick James of Carolinas' Motion for Summary Judgment (#13) and the court's own motion to dismiss (#14).