Warren v. Wofford et al

Filing 19

ORDER: Tammie Warren shall file documentation relevant to the probate of the Estate of Lonnie Roberts identifying the Estate's creditors and beneficiaries, on or before December 6, 2016. Signed by Judge Dana L. Christensen on 11/21/2016. (ASG, )

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IN THE UNITED STATES DISTRICT COURT c,i
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FOR THE DISTRICT OF MONTANA
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MISSOULA DIVISION
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TAMMIE WARREN, individually, and as
Personal Representative of the Estate of
Lonnie Roberts,

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CV 16-31-M-DLC

ORDER

Plaintiff,
vs.
TOD WOFFORD; GORDY JESSUP;
RAVALLI COUNTY, MONTANA; and
DOES 1-10,
Defendants.

Plaintiff Tammie Warren ("Warren") brings federal and state claims on
behalf of herself and as Personal Representative of the Estate of Lonnie Roberts
("the Estate"). When Warren commenced this action, she was represented by an
attorney under an agreement that limited the scope of that representation to the
drafting and filing of the complaint. After the complaint was filed, Warren's
attorney withdrew from this litigation, which this Court approved by its Order of
August 2, 2016. (Doc. 8.) Warren has been unsuccessful in securing new counsel,
and has represented herself and the Estate pro se since that time. In view of the
limited nature of the statutory privilege of self-representation, this Court requires

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additional information regarding Warren's eligibility to proceed prose.
DISCUSSION

"A personal representative ... has the same standing to sue and be sued in
the courts of this state and the courts of any other jurisdiction as the decedent had
immediately prior to death." Mont. Code Ann.§ 72-3-604. Further, Warren has
a statutory privilege to appear prose in federal court. 28 U.S.C. § 1654.
However, such privilege is personal to the litigant "and does not extend to other
parties or entities." Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008)
(citing McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966)).
Thus, "in an action brought by a pro se litigant, the real party in interest
must be the person who 'by substantive law has the right to be enforced."' Id.
(citing C.E. Pope Equity Trust v. United States, 818 F .2d 696, 697 (9th Cir.
1987)). Further, "[c]ourts have routinely adhered to the general rule prohibiting
pro se plaintiffs from pursuing claims on behalf of others in a representative
capacity." Id. (citing Pope, 828 F.2d at 697-698). While the Ninth Circuit has not
directly addressed pro se representation of an estate, it has cited to the Second
Circuit's prohibition on pro se estate representation for support of its adherence to
this general rule in other circumstances. Id. at 665 (citing Iannaccone v. Law, 142
F.3d 553, 559 (2d Cir. 1998), and Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir.
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1997)).
There is one exception to the Second Circuit's rule on prose representation
by a personal representative. 1 When the estate has no other beneficiaries or
creditors other than the litigant, a personal representative may proceed prose.

Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010). Under such circumstances, the
personal representative as sole beneficiary is the real party in interest, and the
assignment of such claims to the estate is only a "legal fiction." Id. at 21. When
beneficiaries or creditors exist, "the action cannot be 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." Pridgen, 113 F.3d
at 393 (citations omitted). Where a personal representative failed to meet the sole
beneficiary exception, the Second Circuit dismissed claims of the estate, but
allowed claims personal to the individual where jurisdiction was proper. See

Innaccone, 142 F.3d at 559.
This rule is persuasive not only because it has been referenced by the Ninth
Circuit, but for its application of the Ninth Circuit's general rule and foundational

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The Second Circuit uses the terms "administrator" and "executrix" in relevant caselaw.
These terms are expressly subsumed under the definition of "personal representative" in Montana
law. Mont. Code Ann. § 72-1-103(37). Thus, to avoid confusion, the Court will use the term
"personal representative" to refer to all such designations in its discussion of Second Circuit
jurisprudence as applied here.
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principles surrounding self-representation. Thus, if Warren is the sole beneficiary
or creditor of the Estate, she may continue to proceed pro se in federal court on the
Estate's claims. If Warren fails to meet the sole beneficiary exception, the Estate
must be represented by an attorney.
Therefore, IT IS ORDERED that Tammie Warren shall file documentation
relevant to the probate of the Estate of Lonnie Roberts identifying the Estate's
creditors and beneficiaries, on or before December 6, 2016.

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Dated this 1=.__ day of November, 2016.

Dana L. Christensen, Chief Judge
United States District Court

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