UNITED STATES OF AMERICA
Filing
21
MEMORANDUM OPINION (c/m to Christopher Nazarian 4/25/11 sat). Signed by Chief Judge Deborah K. Chasanow on 4/25/11. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
UNITED STATES OF AMERICA
:
v.
:
Civil Action No. DKC 10-2962
:
CHRISTOPHER T. NAZARIAN, et al.
:
MEMORANDUM OPINION
Presently pending and ready for review is the motion of the
United States of America to strike the answer filed by Defendant
Christopher T. Nazarian as Personal Representative of the Estate
of Sarkis Nazarian (ECF No. 13) and the motion of Defendant
Hermine Nazarian to stay consideration of Plaintiff’s motion to
strike (ECF No. 17).
The issues are fully briefed and the court
now rules pursuant to Local Rule 105.6, no hearing being deemed
necessary.
For the reasons that follow, Plaintiff’s motion to
strike will be granted and Defendant Hermine Nazarian’s motion
to stay will be denied.
I.
Background
Plaintiff,
the
United
States
of
America,
filed
its
complaint on October 10, 2010, against Defendants Christopher T.
Nazarian
as
Personal
Representative
of
the
Estate
of
Sarkis
Nazarian, Hermine H. Nazarian, Citibank F.S.B, and Joan C. Doll.
(ECF No. 1).1
Plaintiff
Included
seeks
to
in
the
convert
complaint
to
judgment
are
counts
whereby
trust
fund
recovery
penalties in the amount of $444,085.05, assessed against the now
deceased Sarkis Nazarian; to set aside an alleged fraudulent
conveyance
Nazarian;
from
and
the
to
deceased
foreclose
to
his
federal
wife,
tax
Defendant
liens
Hermine
against
real
property owned by the Decedent.
(ECF No. 1, counts I-III).
On
January
Nazarian
as
18,
2011,
Christopher
filed
Personal Representative of the Estate pro se.
an
answer
(ECF No. 7).
Christopher Nazarian signed his name to the answer with the
suffix “Esq.” and “DC Bar” in parenthesis, (id. at 10), but he
is not a member of the Bar of this court and has not moved for
admission pro hac vice.
Plaintiff moved to strike the answer filed by Christopher
Nazarian
on
February
16,
2011.
(ECF
No.
13).
Plaintiff
contends that the answer “was improperly filed by a personal
representative who is not an attorney authorized to practice
before this Court.”
(ECF No. 13-1, at 1).
opposes the motion (ECF No. 16).
Christopher Nazarian
Defendant Hermine Nazarian has
moved to stay consideration of the motion to strike pending a
decision
by
the
Orphans
Court
1
for
Montgomery
County
where
S. Freedmand & Sons, Inc. is also listed as a Defendant in
the initial complaint, but it was voluntarily dismissed by
Plaintiff on February 7, 2011. (See ECF Nos. 10 and 11).
2
Hermine Nazarian has initiated proceedings to remove Christopher
Nazarian
as
personal
representative
of
the
estate.
(ECF No. 17).
II.
Analysis
Plaintiff
contends
that
Christopher
Nazarian’s
answer
should be stricken because the personal representative of an
estate must appear by counsel and may not proceed pro se if the
estate has beneficiaries and creditors other than the personal
representative himself.
(ECF No. 13-1, at 1).
In opposition,
Christopher Nazarian argues that the estate is insolvent and
cannot afford to hire counsel.
(ECF No. 16, at 4).
Christopher
Nazarian further contends that his interests and those of the
Estate are generally aligned and that his actions on behalf of
the Estate cannot affect the outcome of the lawsuit as a whole.
(Id. at 4-5).
The courts are in general agreement that where an estate
has
beneficiaries
other
than
the
personal
representative
(or
administrator or executrix) the estate must be represented by
counsel.
See Witherspoon v. Jeffords Agency, Inc., 88 F.App’x
659 (4th Cir. 2004)(unpublished per curiam); Shepherd v. Wellman,
313 F.3d 963, 970 (6th Cir. 2002); Malone v. Nielsen, 474 F.3d
934, 937 (7th Cir. 2007); Pridgen v. Andresen, 113 F.3d 391, 393
(2d Cir. 1997); cf Guest v. Hansen, 603 F.3d 15, 17 (2d Cir.
2010)(holding
that
personal
representative
3
can
represent
an
estate if it is the sole creditor or beneficiary).
As explained
by the United States Court of Appeals for the Second Circuit in
Pridgen “when an estate has beneficiaries or creditors other
than
the
administratrix
representative],
the
action
or
executrix
cannot
be
[or
personal
described
as
the
litigant’s own, because the personal interests of the estate,
other survivors, and possible creditors will be affected by the
outcome
of
the
proceedings.”
113
F.3d
at
393
(internal
quotations omitted).
Although courts have not had occasion to
rule
personal
on
whether
the
representative
of
an
insolvent
estate is excused from the ban on pro se representation, other
organizational
entities,
such
entities,
not
permitted
have
been
as
corporations
to
proceed
because they lacked resources to pay counsel.
or
pro
non-profit
se
simply
See, e.g., Taylor
v. Knapp, 871 F.2d 803, 806 (9th Cir. 1989)(refusing to permit
non-profit organization to proceed without counsel even though
organization had argued it lacked funds to pay an attorney);
Richdel, Inc. v. Sunspool Corp., 699 F.2d 1366, 1366 (Fed. Cir.
1983)(“Nothing in our Rules suggests that an exception is to be
made
because
of
the
expense
a
corporation
will
incur
by
appearing through an attorney”); Beaudreault v. ADF, Inc., 635
F.Supp.2d
121,
122
(D.R.I.
2009)(declining
to
create
an
exception to requirement that corporations cannot proceed pro se
based
solely
on
a
corporation’s
4
inability
to
pay
for
legal
representation); cf. In re Holliday’s Tax Services, Inc., 417
F.Supp. 182, 185 (E.D.N.Y. 1976), aff’d, 614 F.2d 1287 (2d Cir.
1979)(permitting a lay sole shareholder to represent his small
and impecunious corporation in petitioning for an arrangement
under Chapter XI of the Bankruptcy Act, but noting that the
bankruptcy
court
could
require
the
corporation
to
obtain
professional counsel if it found that “lay representation [was]
causing a substantial threat of disruption or injustice,” or
that “changed economic conditions ma[d]e it possible for the
corporation to obtain an attorney”).2
There is no reason to
treat an insolvent estate differently.
Here Christopher Nazarian has conceded that he is not the
sole creditor or beneficiary of the Estate of Sarkis Nazarian.
He
lists
children
five
of
Nazarian)
at 4).
and
beneficiaries
the
deceased
his
spouse
of
the
(Victor,
(Hermine
intestate
Chris,
Estate:
Connor,
Nazarian).
(ECF
at
No.
Jeff
16,
And, as Plaintiff points out, there is at least one
interested creditor, the United States of America.
1,
and
four
2).
Thus,
Christopher
Nazarian
cannot
(ECF No. 13represent
interests of the estate in this litigation pro se.
2
the
It makes no
The Supreme Court stated in Rowland v. California Men’s
Colony, Unit II Men’s Advisory Council, 506 U.S. 194, n.5 (1993)
that the Eastern District of New York’s decision in In re
Holliday’s Tax Services, Inc,
“neither follow[s] federal
precedent, nor [has itself] been followed.”
5
difference that the complaint does not identify any wrongful act
by the Estate; its interests will be affected by the outcome of
the suit and it must be represented by counsel properly admitted
to appear in this court.
In his opposition to the motion to
strike, Christopher Nazarian argues that the cases holding that
an estate cannot be represented by its personal representative
acting pro se should be limited to situations where the estate
has assets or is actively seeking to gain assets.
at 5).
(ECF No. 16,
There is no support for such a limitation in the cases
themselves, however.
And regardless of whether an estate has
initiated a lawsuit or is defending against one, a personal
representative acting pro se is ill-equipped to represent the
varied interests of the estate’s beneficiaries and creditors.
Indeed, Christopher Nazarian makes clear in his opposition to
the
motion
to
representative
are
strike
not
that
his
consistent
beneficiaries to the Estate.
interests
with
those
(ECF No. 16, at 3).
as
personal
of
all
the
Finally, and
as discussed above, the Estate’s alleged insolvency does not
excuse
the
Estate
from
the
requirement
to
retain
counsel.
Accordingly the answer filed pro se by Christopher Nazarian will
be stricken.
Defendant Hermine Nazarian has requested that this court
stay its determination of the motion to strike until the Orphans
Court for Montgomery County rules on her petition to remove
6
Christopher
Estate.
Nazarian
(ECF No. 17).
this motion.3
as
the
Personal
Representative
of
the
The other parties have not responded to
Nevertheless, the outcome of the Orphans Court
hearing will not impact this court’s ruling on the motion to
strike.
The answer filed by Christopher Nazarian is improper
and must be stricken.
How the Estate chooses to respond to this
ruling is a separate matter that has no effect on this decision.
The motion to stay will be denied.
III. Conclusion
For the foregoing reasons, Plaintiff’s motion to strike the
answer filed by Defendant Christopher T. Nazarian as Personal
Representative of the Estate of Sarkis Nazarian will be granted
and Defendant Hermine Nazarian’s motion to stay consideration of
Plaintiff’s motion to strike will be denied.
A separate Order
will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
3
In addition, Ms. Nazarian’s motion to stay indicated that
the Orphans Court would be holding a hearing on the issue on
April 8, 2011.
That date has now passed and the court has
received no updates from Ms. Nazarian regarding the state
court’s decision.
This court should not delay its ruling
indefinitely.
7
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