TWARDY v. LAKES OF LARCHMONT CONDO ASSOCIATION et al
Filing
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OPINION. Signed by Judge Noel L. Hillman on 5/18/16. (jbk, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ESTATE OF LEON TWARDY,
Civil No. 15-6501 (NLH/AMD)
Plaintiff,
OPINION
v.
LAKES OF LARCHMONT CONDO
ASSOCIATION, et al.,
Defendants.
APPEARANCES:
FRANCIS TWARDY
P.O BOX 262
BIRMINGHAM, NJ 08011
Appearing pro se on behalf of the Estate
HILLMAN, District Judge
Francis Twardy is the executor of his father’s estate,
which is the plaintiff in this action.
Twardy filed a complaint
on behalf of the Estate against Lakes of Larchmont Condo
Association and other individual defendants for their alleged
actions to collect condo fees and other fees and costs from the
Estate, which owns a condo in Lakes of Larchmont.
The Estate
claims that defendants have violated the Fair Debt Collection
Practices Act, Fair Credit Reporting Act, and New Jersey law.
Twardy filed his complaint pro se, and is seeking to
proceed without prepaying fees or costs pursuant to 28 U.S.C. §
1915 (“in forma pauperis”).
The Court must deny Twardy’s IFP
application because § 1915 is not applicable to an estate.
The
Third Circuit Court of Appeals has explained why:
In this Circuit, leave to proceed in forma pauperis is
based on a showing of indigence. Deutsch v. United States,
67 F.3d 1080, 1084 n.5 (3d Cir. 1995). The court reviews
the litigant's financial statement, and, if convinced that
he or she is unable to pay the court costs and filing fees,
the court will grant leave to proceed in forma pauperis.
Id. In cases where leave is granted, the court thereafter
considers the separate question whether the complaint
should be dismissed as frivolous or malicious under 28
U.S.C. § 1915(e)(2)(B). See id. (discussing the standard
for dismissal in former § 1915(d), which is now set forth
in § 1915(e)(2)(B)). . . . Only natural persons may proceed
in forma pauperis under 28 U.S.C. § 1915. Rowland v.
California Men's Colony, 506 U.S. 194, 196 (1993). Because
an estate is not a natural person, it may not so proceed.
Gray v. Martinez, 352 F. App'x 656, 658 (3d Cir. 2009).
Consequently, because the plaintiff in this case is the
Estate of Leon Twardy, and as an estate it cannot be considered
a natural person under 28 U.S.C. § 1915, the Estate’s IFP
application must be denied.
The viability of the Estate’s action is not ensured,
however, even if the Estate paid the court filing fee.
The
executor of the Estate, Francis Twardy, is not an attorney and
is prosecuting the claims of the Estate.
The United States
Supreme Court in Rowland v. California Men's Colony, 506 U.S.
194, 201–02 (1993) reinforced the rule that corporations and
other artificial entities may appear in federal court only
through counsel.
Thus, it is highly questionable whether an
executor of an estate who is not an attorney may file suit on
behalf of an estate.
See, e.g., In re Olick, 571 F. App'x 103,
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106 (3d Cir. 2014) (citing Rowland, 506 U.S. at 201–02) (other
citation omitted) (finding that a pro se trustee may not
represent the trust in federal court because he is not an
attorney and without counsel the trust may not appear in federal
court); c.f. Gray, 352 F. App’x at 656 n.1 (citing Pridgen v.
Andresen, 113 F.3d 391, 393 (2d Cir. 1997)) (noting that the
appeal also raised a question as to whether Gray, as a nonlawyer, may represent the estate, but not reaching the question
because the decision was based on the holding that the estate
may not proceed in forma pauperis); Caputo v. Forceno, No. CIV.
A. 15-1911, 2015 WL 2089401, at *2 (E.D. Pa. May 5, 2015)
(“Federal courts generally will only permit a non-attorney to
proceed pro se in her capacity as the administratrix of an
estate when she is the sole beneficiary and the estate has no
creditors.”) (citing Johnson v. Marberry, 549 F. App'x 73, 75
(3d Cir. 2013) (per curiam) (pro se litigant could not prosecute
claims on behalf of estate/heirs); Malone v. Nielson, 474 F.3d
934, 937 (7th Cir. 2007) (per curiam) (“[I]f the administrator
is not the sole beneficiary of the estate, then he or she may
not represent the estate in court.”); Jones ex rel. Jones v.
Corr. Med. Servs., Inc., 401 F.3d 950, 952 (8th Cir. 2005)
(“‘[W]hen an estate has beneficiaries or creditors other than
the administratrix or executrix, the action cannot be described
as the litigant's own, because the personal interests of the
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estate, other survivors, and possible creditors will be affected
by the outcome of the proceedings.’”)).
Thus, the Court will deny the Estate’s IFP application.
If
Francis Twadry wishes to pursue claims on behalf of the Estate,
the Estate must pay the appropriate filing fee.
Twadry must
also obtain counsel to represent the Estate in prosecuting the
Estate’s claims, or demonstrate to the Court that he permitted
to pursue the Estate’s claims pro se, as discussed in the
caselaw cited above.
An appropriate Order will be entered.
Date:
May 18, 2016
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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