United States of America v. Estate of Amir Zavieh, a/k/a Allen Zavieh, Deceased et al

Filing 16

ORDER by Judge Kandis A. Westmore denying 8 Administrative Motion to Extend Time to Serve; denying 9 Motion to Appoint Personal Representative of the Estate. (kawlc2, COURT STAFF) (Filed on 9/11/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
Plaintiff,

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v.

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ESTATE OF AMIR ZAVIEH, A/K/A
ALLEN ZAVIEH, DECEASED, et al.,

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Defendants.
United States District Court
Northern District of California

Case No. 17-cv-03286-KAW

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ORDER DENYING EX PARTE
MOTION TO APPOINT PERSONAL
REPRESENTATIVE OF THE ESTATE;
DENYING MOTION TO EXTEND
TIME TO SERVE
Re: Dkt. No. 8, 9

On June 7, 2017, Plaintiff United States of America filed the instant complaint against

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Defendants Estate of Amir Zavieh ("Decedent's Estate") and Lisa Zavieh Martin for the collection

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of an outstanding civil penalty assessed against Amir Zavieh ("Decedent"). (Compl., Dkt. No. 1.)

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Defendant Martin was named as a defendant in her capacity as the executor of Decedent's Estate.

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(Compl. ¶ 2.)

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On August 28, 2017, Plaintiff filed an amended complaint against Decedent's Estate and

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Defendant Martin. Defendant Martin was named as a defendant as the fraudulent transferee of

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Decedent, as well as in her capacity as the successor-in-interest of Decedent's Estate. (First

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Amended Compl. ¶ 2, Dkt. No. 7.) Plaintiff concurrently filed an ex parte motion to appoint

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Defendant Martin as the personal representative of Decedent's Estate, as well as an ex parte

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motion to extend time to effectuate service by 90 days. (Mot. to Appoint, Dkt. No. 9; Mot. to

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Extend Time, Dkt. No. 8.) In the motion to appoint, Plaintiff states that no probate proceedings

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were ever commenced as to Decedent's Estate, and no executor was ever appointed. (Mot. to

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Appoint at 2.) No oppositions to the motions were filed.1

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It is not clear if Defendant Martin has been served; Plaintiff asserts that no defendants have been
served, but also states that counsel for Defendant Martin returned a waiver of the service of

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The Court finds that it lacks the authority to appoint Defendant Martin as the personal

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representative of Decedent's Estate under the probate exception. "Under Rule 17(b) of the Federal

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Rules of Civil Procedure, the capacity of one acting in a representative capacity to sue is

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determined by the law of the state where the court is located." Hassanati v. Int'l Lease Fin. Corp.,

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51 F. Supp. 3d 887, 897 (C.D. Cal. 2014). Per California Probate Code § 8400(a), "[a] person has

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no power to administer the estate until the person is appointed personal representative and the

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appointment becomes effective. Appointment of a personal representative becomes effective

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when the person appointed is issued letters." Courts, in turn, have found that the issuance of

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letters of administration and appointment of personal representatives falls within the probate
exception, which is the "jurisdictional limit on federal courts that 'reserves to state probate courts

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United States District Court
Northern District of California

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the probate or annulment of a will and the administration of a decedent's estate . . . .'" Hollander

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v. Irrevocable Trust Established by James Brown in August 1, 2000, No. CV 10-7249 PSG

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(AJWx), 2011 WL 2604821, at *2 (C.D. Cal. June 30, 2011) (quoting Marshall v. Marshall, 547

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U.S. 293, 311 (2006).)

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In Hassanati, the plaintiffs made claims under the Death on the High Seas Act, which

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required that claims be asserted by the personal representatives of the decedents. 51 F. Supp. 3d at

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890. The plaintiffs then moved for an order appointing them personal representatives of the

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decedents. Id. at 891. The district court denied the motion, explaining that "appointment of

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personal representatives falls squarely within the probate exception." Id. at 896; see also Sequoia

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Prop. and Equip. Ltd. P'ship v. United States, No. CV-F-97-5044-LJO, 2002 WL 32388132, at *3

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(E.D. Cal. June 3, 2002) ("the Government seeks this Court's appointment of Mr. Crisp as Mrs.

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Crisp's personal representative. However, a state probate court, not a federal court, is empowered

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to make such an appointment. [Citations.] The Government cites no authority . . . for this Court

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to appoint Mr. Crisp as personal representative"); Hassanati ex rel. Said v. Int'l Lease Fin. Corp.,

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643 Fed. Appx. 620, 622 (9th Cir. 2016) ("The district court correctly determined that

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appointment of a personal representative falls within the probate exception because it, essentially,

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summons on behalf of Defendant Martin, although it was unclear in what capacity Defendant
Martin waived service. (Mot. to Extend Time at 2.)
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seeks that a court issue letters of administration"); Bachtel v. Barker, Case No. 1:15-cv-434, 2015

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WL 4761449, at *5 (S.D. Ohio Aug. 13, 2015) ("A federal court lacks jurisdiction to appoint or

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remove a personal representative"); Wilson v. Sundstrand Corp., Nos. 99 D 6944, 99 C 6946, 2002

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WL 99745, at *4 (N.D. Ill. Jan. 25, 2002) ("A federal court lacks the authority to appoint a special

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administrator); William W. Schwarzer, et al., FEDERAL CIVIL PROCEDURE BEFORE TRIAL ¶ 2:1699

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(The Rutter Group 2017) ("The probate exception prohibits federal courts from exercising

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jurisdiction over property in the possession of fiduciaries appointed by a state court. This includes

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removal and/or appointment of a personal representative of the decedent's estate because this

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clearly would interfere with administration of the estate"). Applying the probate exception to the

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instant case, the Court likewise concludes that it lacks the authority to appoint Defendant Martin

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United States District Court
Northern District of California

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as a personal representative or issue letters of administration.

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The cases cited by Plaintiff do not require a contrary conclusion because none of those

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cases involved the appointment of a personal representative. (Mot. to Appoint at 3.) Rather, those

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cases involved the substitution of parties under Federal Rule of Civil Procedure 25. Here,

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however, Plaintiff does not seek to substitute Defendant Martin in place of Decedent's Estate;

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Plaintiff would have Decedent's Estate remain a party to the case, which would then be

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represented by Defendant Martin. As discussed above, the Court lacks the authority to make such

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an appointment.

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The Court therefore DENIES Plaintiff's motion to appoint Defendant Martin as the

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personal representative of Decedent's Estate. The Court also DENIES Plaintiff's motion to extend

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time for service, as Plaintiff's purpose in requesting the extension of time was "[t]o ensure that the

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Court has time to consider the United States' motion [to appoint counsel]." Because the motion to

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appoint is being denied, the motion to extend time for service is moot.

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IT IS SO ORDERED.
Dated: September 11, 2017
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KANDIS A. WESTMORE
United States Magistrate Judge

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