Byrd III v. Desai

Filing 21

ORDER denying 9 , 10 Motions to Remand; granting 11 Motion to Dismiss; denying as Moot 15 Motion to Defer Ruling. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BENNIE BYRD, III,
as personal representative of the
estate of Bennie Byrd, Jr.,

Case No. 15-12659
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

Plaintiff,
v.

U.S. MAGISTRATE JUDGE
ELIZABETH A. STAFFORD

SUDHIR G. DESAI and THE UNITED
STATES OF AMERICA,
Defendants.
/

ORDER DENYING PLAINTIFF’S MOTION TO REMAND [9, 10]; GRANTING
DEFENDANTS’ MOTION TO DISMISS [11]; OVERRULING AS MOOT PLAINTIFF’S
OBJECTION TO SUBSTITUTION OF UNITED STATES AS DEFENDANT [5]; AND
DENYING AS MOOT PLAINTIFF’S MOTION TO DEFER RULING [15]

On July 28, 2015, Defendant Desai removed this case from state court. The
next day, Defendant Desai filed a Notice of Substitution [Dkt. #2], stating that the
United States had replaced him as the sole defendant on Plaintiff’s tort claims
pursuant to 28 U.S.C. § 2679(d)(1). On July 30, 2015, the Court issued an Order
Reflecting Substitution of United States as Defendant [4]. On August 4, 2015,

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Plaintiff filed an Objection to Substitution of United States as Defendant [5].1 On
August 26, 2015, Plaintiff filed a Motion to Remand [9, 10].2 On August 31, 2015,
Defendants filed a Motion to Dismiss [11].3 On September 10, 2015, Plaintiff filed
a Motion [15] to defer the Court’s ruling on Defendants’ motion to dismiss until
after its rulings on Plaintiff’s pending objection and motion.
The Court denies Plaintiff’s motion to remand to state court. Plaintiff argues
that removal pursuant to 28 U.S.C. § 1441 was improper because the Court lacks
original jurisdiction over the case.

However, the Court has original “federal

question” jurisdiction over Plaintiff’s claim alleging a violation of the Due Process
Clause of the Fifth Amendment to the United States Constitution.
28 U.S.C. § 1331.

See

The Court may exercise supplemental jurisdiction over

Plaintiff’s state-law claims because they and the due process claim “derive from a
common nucleus of operative fact.” Packard v. Farmers Ins. Co. of Columbus,
Inc., 423 F. App’x 580, 583 (6th Cir. 2011) (quoting Harper v. AutoAlliance Int’l,
Inc., 392 F.3d 195, 209 (6th Cir. 2004)). Because removal was proper pursuant to
1

Defendants filed a Response [12] to Plaintiff’s objection on August 31, 2015.
Plaintiff filed a Reply [13] on September 4, 2015.
2
Plaintiff filed his Motion to Remand twice, presumably by mistake. Defendants
filed a Response [14] on September 9, 2015.
3
Plaintiff filed a Response [16] on September 14, 2015. He filed Errata [17, 18]
on September 15 and September 17, 2015. Finally, he filed a Supplemental
Brief [19], styled as an “Objection to Defendants’ Evidence as Improper,” on
September 21, 2015. Defendants filed a Reply [20] on September 28, 2015.
2

28 U.S.C. § 1441, the Court need not address the other grounds for removal
identified by the parties.
The Court grants Defendants’ motion to dismiss the case on the grounds that
the case is before the Court only due to Plaintiff’s unauthorized practice of law.
Plaintiff purports to represent his father’s estate, which is the real party in interest.
See Zanecki v. Health Alliance Plan of Detroit, 576 F. App’x 594, 595 (6th Cir.
2014) (citing Shenkman v. Bragman, 682 N.W.2d 516, 519 (Mich. Ct. App. 2004)).
“[A] person may not appear pro se on another person’s behalf in the other’s cause
of action.” Id. (quoting Cavanaugh ex rel. Cavanaugh v. Cardinal Local Sch.
Dist., 409 F.3d 753, 755 (6th Cir. 2005), abrogated on other grounds by
Winkelman ex rel. Winkelman v. Parma City. Sch. Dist., 550 U.S. 516 (2007)).
Thus, Plaintiff is a nonlawyer “impermissibly acting as the estate’s counsel.” Id.
(citing Georgakis v. Ill. State Univ., 722 F.3d 1075, 1077 (7th Cir. 2013)). It is
therefore appropriate to dismiss the case without prejudice, the “usual course of
action” in such a situation. Id. (citing Shepherd v. Wellman, 313 F.3d 963, 971
(6th Cir. 2002); Georgakis, 722 F.3d at 1078; Jones ex rel. Jones v. Corr. Med.
Servs., Inc., 401 F.3d 950, 952 (8th Cir. 2005)); see also Shenkman, 682 N.W.2d at
517.
Accordingly, for the reasons stated above,
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IT IS ORDERED that Plaintiff’s Motion to Remand [9, 10] is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss [11] is
GRANTED. The case is DISMISSED without prejudice to its refiling through
counsel.
IT IS FURTHER ORDERED that Plaintiff’s Objection to Substitution of
United States as Defendant [5] is OVERRULED as moot.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Defer Ruling [15]
is DENIED as moot.
SO ORDERED.

Dated: October 27, 2015

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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