Lee v. Commissioner of Social Security

Filing 6

ORDER DISMISSING COMPLAINT FOR FAILURE TO NAME AS PLAINTIFF The Real Party In Interest, WITH LEAVE TO AMEND Within Thirty Days (Docs. 1 and 3 ), signed by Magistrate Judge Sandra M. Snyder on 7/10/2012. (First Amended Complaint due by 8/13/2012) (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MAI LEE,

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Plaintiff,

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CASE NO. 1:12-cv-01095-SMS
ORDER DISMISSING COMPLAINT FOR
FAILURE TO NAME AS PLAINTIFF THE
REAL PARTY IN INTEREST, WITH LEAVE
TO AMEND WITHIN THIRTY DAYS

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,

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Defendant.
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(Docs. 1 and 3)
/

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On December 1, 2010, an administrative law judge denied Mai Lee’s application for
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Supplemental Security Income. Doc. 1. The Appeals Counsel denied Ms. Lee’s request for
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review on May 2, 2010. Doc. 1. On July 6, 2012, Ms. Lee filed a complaint seeking this Court’s
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review. Doc. 1. The complaint fails to disclose that Ms. Lee died on October 29, 2011. Doc. 519
1.
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Any action brought in this Court must be prosecuted in the name of the real party in
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interest. F.R.Civ.P. 17(a). The real party in interest appears to be Ms. Lee’s widower, Kayeng
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Thao, who, by his attorney Sengthiene Bosavanh, filed a motion to proceed in forma pauperis
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(Doc. 3) and Suggestion of Death Upon the Record as to Substitution of Party Kayeng Thao by
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Mai Lee (Doc. 5), which consists of Ms. Lee’s death certificate and a Social Security
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Administration form, Notice Regarding Substitution of Party Upon Death of Claimant (OMB No.
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0960-0288), signed July 6, 2012.
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The creative amalgam of documents submitted in this case do not constitute appropriate

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procedure. Under Rule 17, a new case must be initiated by the real party in interest. Rule 25

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addresses substitution for a deceased party in an ongoing case in which an existing claim is not

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extinguished; this is not an ongoing case. In any event, submission of an administrative form is

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not a satisfactory means of bringing an official notice suggesting death upon the record in

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preparation for a motion for substitution of party.

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That a dead person cannot initiate an action in federal district court would have been

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apparent to counsel had she undertaken even the most perfunctory review of applicable law.

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That the complaint not only failed to mention Ms. Lee’s death but represented her using the

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present tense and as “residing in the Judicial District of this Court,” constitutes a serious

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misrepresentation by Ms. Bosavanh and requires a reprimand. F.R.Civ.P. 11(b)(3). Any future

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misrepresentations will subject Ms. Bosavanh to a motion on the Court’s initiative for sanctions

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pursuant to F.R.Civ.P. 11(c)(3).

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Because this action is not brought by the real party in interest, the Court will dismiss the

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complaint with leave to amend to designate as Plaintiff “Kayeng Thao, Surviving Spouse of Mai

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Lee, Deceased.” See, e.g., Sousa v. Callahan, 143 F.3d 1240 (9th Cir. 1998). The amended

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complaint should fully allege facts sufficient to explain the procedural posture of the case and to

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satisfy applicable pleading standards. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Mr. Thao’s motion to proceed in forma

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pauperis shall be dismissed as moot, but may be re-filed with the amended complaint.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Plaintiff the real party in interest, as required by F.R.Civ.P. 17;

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2.

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The motion to proceed in forma pauperis filed by Kayeng Thao is dismissed as
moot;

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3.

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Plaintiff’s complaint is dismissed with leave to amend for failure to name as

Sengthiene Bosavanh is reprimanded for presenting to the Court a complaint
misrepresenting applicable facts;

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4.

Within thirty (30) days from the date of service of this order, Kayeng Thao shall

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file an amended complaint curing the deficiencies identified by the Court in this

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order; and

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5.

If Mr. Thao fails to file an amended complaint within thirty (30) days from the

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date of service of this order, this action will be dismissed with prejudice for

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failure to follow a court order.

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IT IS SO ORDERED.

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Dated:
icido3

July 10, 2012

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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