Koltin v. City of Fall River et al

Filing 79

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER. For the foregoing reasons, the motion to vacate dismissal and substitute Harold Koltin as plaintiff in his capacity as personal representative for Theodore Koltin (Docket No. 74 is DENIED WITHOUT PREJUDICE. So ordered.(Franklin, Yvonne)

United States District Court
District of Massachusetts

Theodore Koltin,
Plaintiff,
v.
City of Fall River, et al.,
Defendants.

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Civil Action No.
14-13750-NMG

MEMORANDUM & ORDER
GORTON, J.
On October 3, 2017, Theodore Koltin, the plaintiff in this
case, died.

On October 24, 2017, Attorney Kevin Reddington,

then counsel for plaintiff, filed a suggestion of death and
moved this Court to “dismiss this action as the plaintiff is
deceased.”

That same day, this Court entered an order of

dismissal.

On December 27, 2017, Harold Koltin, the late

plaintiff’s brother, through newly attained counsel, Attorney
Elliot Savitz, filed a motion to vacate dismissal and substitute
Harold Koltin (“movant”) as plaintiff in his capacity as
personal representative for Theodore Koltin.
Movant filed a Statement of Voluntary Administration under
penalty of perjury in the Massachusetts Probate and Family Court
for Bristol County on November 6, 2017.

He provided to this

Court an attested true copy of that statement which confers upon
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movant the status of voluntary personal representative. See
M.G.L. c. 190B §3-1201.

That statute provides that

A voluntary personal representative may, as the legal
representative of the deceased and his estate, receive
payment of any debt or obligation in the nature of a debt .
. . scheduled in such statement . . . . [A] voluntary
personal representative may sell any chattel so received
and negotiate or assign any chose in action to convert the
same to cash in a reasonable amount.
Id.
Movant lacks standing to pursue this action because it does
not represent a “debt or obligation in the nature of a debt.”
Although a voluntary personal representative may sell or assign
a chose in action to convert that action to cash, the statute
does not permit such a person to maintain such an action.
Finally, the statute requires that any asset or debt that a
voluntary personal representative seeks to receive be “scheduled
in [the duly attested] statement.”

Plaintiff’s action is not

scheduled in movant’s statement.
Because a voluntary personal representative may not
maintain an action in chose and because this action was not
scheduled on the duly attested voluntary administration
statement, movant’s motion to vacate dismissal and substitute
plaintiff will be denied. See Cobb v. Potwin, 90 Mass. App. Ct.
1102 (2016) (rule 1:28 disposition) (affirming Probate and
Family Court’s dismissal for failure to prosecute claim action
because voluntary personal representative lacked standing to
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pursue action and voluntary administrator failed to note pending
action on statement of voluntary administration); cf. Marco v.
Green, 415 Mass. 732, 737–739 (1993) (voluntary administrator
under § 3–1201 predecessor statute lacks authority to bring or
maintain statutory wrongful death action).
The denial of Mr. Koltin’s motion will be without prejudice
to allow movant to pursue formal probate or otherwise attain a
status sufficient to maintain such an action.
ORDER
For the foregoing reasons, the motion to vacate dismissal and
substitute Harold Koltin as plaintiff in his capacity as
personal representative for Theodore Koltin (Docket No. 74) is
DENIED WITHOUT PREJUDICE.

So ordered.
/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge

Dated February 16, 2018

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