Kheibari v. Rite Aid Corporation

Filing 145

OPINION and ORDER Denying Defendant's 140 Motion Requesting Order to Show Cause. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROSITA AMINI, as Personal
Representative of the Estate of
Michael Kheibari,
Plaintiff,
v.

Case No. 4:14-cv-11496
Hon. Linda V. Parker

RITE AID CORPORATION,
Defendant.
_________________________/
OPINION AND ORDER DENYING DEFENDANT’S MOTION
REQUESTING ORDER TO SHOW CAUSE (ECF NO. 140)
On April 14, 2014, Michael Kheibari (“Plaintiff”) initiated this lawsuit
against Defendant Rite Aid Corporation (“Rite Aid”), alleging various
employment-related claims. When Plaintiff passed during the pendency of the
litigation, the Court permitted Rosita Amini (“Amini”), Plaintiff’s daughter, to
substitute as personal representative of his estate. (ECF No. 78.)
On September 26, 2017, the Court granted Rite Aid’s motion for partial
summary judgment and dismissed the claims related to Plaintiff’s termination
(ECF No. 77) and, on August 20, 2019, the Court granted Rite Aid’s motion for
summary judgment as to the remaining hostile work environment and retaliation
claims (ECF No. 130). The Clerk of Court subsequently taxed costs in favor of
Rite Aid in the amount of $3,266.45. (ECF No. 134); see Fed. R. Civ. Proc.

54(d)(1) (“Unless a federal statute, these rules, or a court order provides otherwise,
costs—other than attorney’s fees—should be allowed to the prevailing party.”).
This matter is presently before the Court on Defendant’s Motion Requesting
Order to Show Cause “why [Amini] should not be held in civil contempt until
costs are paid.” (ECF No. 140 at Pg. ID 3330.) Rite Aid states that, “[a]s of this
writing, and in spite of repeated attempts by Rite Aid to secure voluntary
compliance, [Amini] has failed to pay th[e] taxed costs, claiming that only
[Plaintiff]’s estate (which she claims has no assets) is liable for satisfying the costs
award.” (Id.) Amini responded to Rite Aid’s motion. (ECF No. 143.) Finding the
facts and legal arguments sufficiently presented in the parties’ briefs, the Court is
dispensing with oral argument pursuant to Local Rule 7.1(f)(2). For the reasons
that follow, the Court denies Rite Aid’s motion.
APPLICABLE LAW & ANALYSIS
Rite Aid argues that “[f]ederal law requires Amini, who was substituted as
the real party in interest at her request, to pay the court costs incurred [by] Rite Aid
in defending against this case.” (ECF No. 144 at Pg. ID 3413.) According to Rite
Aid, “[Amini] has failed to present any argument or authority that allows her to
dodge that clear responsibility merely because she does not like the outcome.” (Id.
at Pg. ID 3414.) Though neither party points to the authorities relevant to
resolving the issue of whether a personal representative should be held personally
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liable for litigation costs, the Court’s own research suggests that Rite Aid’s
argument is without support.
As alluded to by Rite Aid, Federal Rule of Civil Procedure 17 states that
“[a]n action must be prosecuted in the name of the real party in interest.” The
Sixth Circuit has explained that “the real party in interest is the person who is
entitled to enforce the right asserted under the governing substantive law” and
“[t]he real party in interest analysis turns on whether the substantive law creating
the right being sued upon affords the party bringing suit a substantive right to
relief.” Cranpark, Inc. v. Rogers Grp., Inc., 821 F.3d 723, 730 (6th Cir. 2016)
(quoting Certain Interested Underwriters at Lloyd’s, London, Eng. v. Layne, 26
F.3d 39, 42-43 (6th Cir. 1994)). Of course, the governing substantive law in a
diversity action is state law and, in this case, Michigan law. See Layne, 26 F.3d at
43 (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 (1938)).
In Michigan, “a personal representative is a separate entity from the estate
served and [] the estate, not the personal representative, remains ‘the real party in
interest . . . for whose benefit the action is brought.’” Shenkman v. Bragman, 682
N.W.2d 516, 519 (Mich. Ct. App. 2004) (citing MCR 2.201(B)); see also Ross v.
Tousignant, No. 302458, 2012 WL 5233591, at *2 (Mich. Ct. App. Oct. 23, 2012)
(“An estate is the real party in interest, even though the personal representative acts
for and represents the interests of the estate.”). Rite Aid’s argument that, “once
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[Amini] was substituted as the real party in interest in this case, [she] became
responsible for compliance with all of the Court’s orders, including the taxed bill
of costs” fails because, as Michigan law makes clear, Amini was not substituted as
the real party in interest when she became Plaintiff’s personal representative.
(ECF No. 144 at Pg. ID 3414.) Rather, the real party in interest remained
Plaintiff’s estate.
Rite Aid also argues that Amini is individually liable pursuant to Michigan
Compiled Law 700.3808(2), which states that “[a] personal representative is
individually liable for an obligation arising from ownership or control of the estate
or for a tort committed in the course of estate administration only if the personal
representative is personally at fault.” Rite-Aid argues that Amini satisfies both
requirements because she controlled Plaintiff’s estate and “is at fault for these costs
because she made the choice to pursue this litigation.” (ECF No. 144 at Pg. ID
3417.) According to Rite Aid, Ballentine’s Law Dictionary defines “fault” as “[a]n
error or defect of judgment or conduct” and “Amini made an error in judgment
pursuing a case that did not have merit.” (Id. at Pg. ID 3418.) The Court is not
persuaded.
Under Michigan Compiled Law 700.3715(x), “a personal representative,
acting reasonably for the benefit of interested persons, may . . . [p]rosecute or
defend a claim or proceeding in any jurisdiction for the protection of the estate.”
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And “[i]f a personal representative . . . defends or prosecutes a proceeding in good
faith, whether successful or not, the personal representative is entitled to receive
from the estate necessary expenses and disbursements including reasonable
attorney fees incurred.” Mich. Comp. Laws 700.3720; see also In re Awad Estate,
No. 310660, 2013 WL 1776280, at *2 (unpublished) (Mich. Ct. App. Apr. 25,
2013) (“[L]egal services rendered [o]n behalf of an estate are compensable where
the services confer a benefit on the estate by either increasing or preserving the
estate’s assets.” (quoting In re Sloan Estate, 538 NW2d 47, 49 (Mich. Ct. App.
1995))). In In re Estate of Wetsman, the Michigan Court of Appeals affirmed the
probate court’s determination that a son, who served as the personal representative
of his mother’s estate, was “personally liable” for the fees and costs awarded
because “the son utilized the[] legal services to improve his own position . . . rather
than to benefit the estate.” No. 317081, 2014 WL 7338873, at *1 (Mich. Ct. App.
Dec. 23, 2014); see also In re Estate of Doss, No. 303322, 2014 WL 556331, at
*10 (Mich. Ct. App. Feb. 11, 2014) (finding personal liability for attorneys’ fees
and costs where personal representative’s actions were “willful[ ], malicious[ ] and
with the intent to defraud the other heirs of the [e]state”). Because Rite Aid
identifies no part of the record suggesting that Amini prosecuted this matter in bad
faith, the Court is not persuaded by its argument that Michigan law requires the
Court to hold Amini personally liable.
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Rite Aid further contends that the “procedural obligations” under Federal
Rule of Civil Procedure 54(d) require Amini to pay the taxed costs. (ECF No. 144
at Pg. ID 3417.) Rule 54(d) states: “Unless a federal statute, these rules, or a court
order provides otherwise, costs—other than attorney’s fees—should be allowed to
the prevailing party.” Fed. R. Civ. P. 54(d). As can be seen, nothing in this rule
touches on whether a personal representative of an estate should be held personally
liable for taxed costs in lieu of the estate.
CONCLUSION
Ultimately, Rite Aid has offered no controlling or persuasive authority to
support the proposition that Amini, as personal representative of Plaintiff’s estate,
is personally liable for the taxed costs in this case. The Court, therefore, denies
Rite Aid’s motion.
Accordingly,
IT IS ORDERED that Defendant’s Motion Requesting Order to Show
Cause (ECF No. 140) is DENIED.
IT IS FURTHER ORDERED that Amini’s “request[] [that] the Court []
sanction [Rite Aid] $3,000.00 for bringing a frivolous motion” (ECF No. 143 at
Pg. ID 3350, 3359) is DENIED. See E.D. Mich. Electronic Filing Policies and
Procedures, Rule 5(f) (“[A] response . . . to a motion must not be combined with a

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counter-motion.”).
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: March 25, 2021

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