Morris v. Riverview Health and Rehabilitation Center

Filing 22

ORDER denying without prejudice 19 Motion to Substitute Party. The Court stays this case for 30 days. Signed by Magistrate Judge G. R. Smith on 01/09/2012. (lmm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
SHIRLEY A. MORRIS,
Plaintiff,
v.
RIVERVIEW HEALTH AND
REHABILITATION CENTER,
a Georgia corporation,
Defendant.

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Case No. CV411-049

ORDER
Shirley A. Morris died after filing this employment discrimination
case. Doc. 19 at 1-2; doc. 21 at 1. Her lawyer moved to substitute her
heirs or her estate as plaintiff(s), doc. 19, but only an estate executor or
administrator has standing here. 1 In endeavoring to comply with the
Fed. R. Civ. P. 25(a) requirements illuminated in Hardy v. Potter, 2009
“An estate is not a legal entity which can normally be a party plaintiff to legal
proceedings, because the exclusive right to bring actions on behalf of the estate is in
the executor or administrator.” 10 G A . JUR. D ECEDENTS' E STATES AND T RUSTS § 8:62
(Dec. 2011) (footnote omitted); GA . P ROBATE & ADMINISTRATION § 9:9 (4th ed. Aug.
2011) (“Generally, heirs and creditors may sue third persons for the recovery of
personal property only in the name of the representative of the estate. Even if there is
no representative, heirs may not maintain suits directly against third persons.
However, an heir may maintain an action in his or her own name if there has been
collusion, insolvency, or unwillingness to collect the assets when called upon on the
part of the personal representative.”) (footnotes omitted).
1

WL 765028 at * 1-2 (S.D. Ga. Mar. 23, 2009), defendant notes that an
ongoing state probate court proceeding for appointing an administrator
for her estate has not yet been finalized . 2 Doc. 21 at 4-5.
A separate issue is what claims survive Morris’s death. See Kilgo v.
Bowman, 789 F.2d 859, 876 (11th Cir. 1986) (a “Title VII cause of action
survives under both federal and state law”); Simmons v. Prison Health
Services Inc., 2009 WL 2914103 * 2 n. 3 (S.D. Ga. Sep. 10, 2009); Yule ex
rel. Bryant v. Jones, 2010 WL 1050013 at * 2 (N.D. Ga. Mar. 17, 2010); cf.
Villanueva v. First Am. Title Ins. Co., ___ Ga. App. ___, 2011 WL 5987910
at * 4-5 (Dec. 1, 2011) (generally, injuries to property, including legal
malpractice claims, can be assigned, while injuries to the person cannot).
This is critical because a cause of action (hence, any lawsuit) is a form of personal
property, National Bldg. Maintenance Specialists, Inc. v. Hayes, 288 Ga. App. 25, 26
(2007); see also Sevostiyanova v. Tempest Recovery Services, Inc., 307 Ga.App. 868, 871
(2011), and
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[u]nder OCGA § 53-4-8(b), the title to all personal property owned by a decedent
“shall vest in the administrator of his estate for the benefit of the heirs and
creditors.” Thus, as a general rule, the right of action for the recovery of
personal property for the benefit of an estate vests exclusively in the
administrator of the estate, and not in its beneficiaries. This general rule is
subject to the equitable exception that an heir may sue in his own name where
he can show that, by reason of insolvency, fraud, collusion or other special
circumstances, the administrator is unwilling to bring the suit.
Peden v. Peden, 293 Ga. App. 483, 483-84 (2008) (footnotes omitted); 10 G A . JUR.

D ECEDENTS' E STATES AND T RUSTS § 8:62 (Dec. 2011).
2

The defendant, however, has not raised that issue.
In any event, the Court STAYS this case for 30 days to
accommodate the contemplated estate-representation formalities, absent
which defendants may move to dismiss. For the moment, then, the
motion for substitution (doc. 19) is DENIED without prejudice to renew
it by a party with standing. See Hardy v. Potter, 2009 WL 2391239 at * 2
(S.D. Ga. Nov. 19, 2009) (“Courts routinely -- if not necessarily -- require
evidence that a movant for substitution was appointed to the
representative capacity.”).
SO ORDERED this 9th day of January, 2012.

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UNiTED STATES MAGISTRATE JUDGE
SOuTHERN DISTRICT OF GEORGIA

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