Ross et al v. Balderas et al

Filing 217

ORDER by Circuit Judge Paul Kelly, Jr. withdrawing 187 Counseled Motion to Substitute Party; deferring ruling on 200 Pro-Se Motion to Substitute Party pending Plaintiff Ross obtaining counsel to represent the Estate of Plaintiff Susan Gerard; granting 204 ORDER on Motion to Withdraw Counseled Motion to Substitute Party. (rt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ANDREW ROSS and SUSAN GERARD,
Plaintiffs,
vs.
HECTOR BALDERAS, JR., ROBERT
GARCIA, SARAH MICHAEL
SINGLETON, FRANCIS J. MATHEW,
RAYMOND Z. ORTIZ, DAVID K.
THOMPSON, JENNIFER ATTREP, T.
GLENN ELLINGTON, SYLVIA
LAMAR, DONITA OLYMPIA SENA,
DONNA BEVACQUA-YOUNG, PAT
CASADOS, FRANK SEDILLO,
WILLIAM PACHECO, ANTONIO
GUTIERREZ, ANNA MONTOYA,
JUDAH BEN MONTANO, A. ARROYO,
E. MONTIJO, MICHELLE PORTILLO,
STEPHEN T. PACHECO, JANE
GAGNE, JOYCE BUSTOS, LYNN
PICKARD, PAMELA REYNOLDS,
ROBIN MARTINEZ, ROBERT
RICHARDS, BRENDA WALL,
AUDREY MONTOYA, and ALLSTATE
INSURANCE, INC.,
Defendants.
-------------------------PAMELA REYNOLDS and ROBERT
RICHARDS,
Counter-Claimants,
vs.

No.

1:16-cv-01121 PJK/SMV

ANDREW ROSS and SUSAN GERARD,
Counter-Defendants.

ORDER ON VARIOUS PENDING MOTIONS RELATED TO SUBSTITUTION

THIS MATTER comes on for consideration of (1) Plaintiff’s Motion for
Substitution of Party Pursuant to FRCP Rule 25(a)(1) filed April 16, 2017 (Doc. 187), (2)
Andrew Ross’s Suggestion of Death and Pro Se Motion to Substitute Party filed May 15,
2017 (Doc. 200), and (3) Plaintiffs’ Motion to Withdraw Motion to Substitute Party filed
May 17, 2017 (Doc. 204). Upon consideration thereof, the court will grant the motion to
withdraw the counseled motion to substitute, and will defer action on the suggestion of
death and motion to substitute to allow the Estate to obtain counsel.
Defendant Balderas contends that Plaintiff Andrew Ross may not appear through
counsel and also appear pro se. Doc. 208. Plaintiff Ross argues that the Estate of Susan
Gerard is a separate legal entity. In certain limited circumstances, courts have allowed
personal representatives to appear pro se, specifically when the personal representative
was the sole beneficiary of the estate and there were no claims of creditors. E.g., Rodgers
v. Lancaster Police & Fire Dep’t, 819 F.3d 205, 210–11 (5th Cir. 2016); Guest v. Hansen,
603 F.3d 15, 17 (2d Cir. 2010). The rationale is that the personal representative is really
representing his or her own interests as sole beneficiary without any creditors. It is not
apparent from Mr. Ross’s motion whether there are any other beneficiaries; but this court
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takes judicial notice of the docket sheet of the Bernalillo County Probate Court (Estate of
Susan Helene Gerard, Case No. 2017-0255, filed Mar. 31, 2017 at
http://www.bernco.gov/probate-court/case-lookup.aspx), which indicates that while
Plaintiff Ross has been informally appointed as personal representative, there is a pending
claim against the Estate by Defendant Brenda Wall. See Fed. R. Evid. 201(b) (judicial
notice). Thus, even assuming that Plaintiff Ross could prove that he is the sole
beneficiary and there were no other claims of creditors, he may not represent the Estate
pro se.
NOW, THEREFORE, IT IS ORDERED that:
(1) Plaintiffs’ Motion to Withdraw Motion to Substitute Party filed May 17, 2017
(Doc. 204), is granted and Plaintiff’s Motion for Substitution of Party Pursuant to FRCP
25(1)(1) filed April 16, 2017 (Doc. 187) is withdrawn;
(2) disposition of Plaintiff Ross’s Suggestion of Death and Pro Se Motion to
Substitute Party filed May 15, 2017 (Doc. 200) is deferred pending Plaintiff Ross
obtaining counsel to represent the Estate.
DATED this 25th day of May 2017, at Santa Fe, New Mexico.
_______________________
United States Circuit Judge
Sitting by Designation
Counsel:
Arash “Asher” Kashanian, Albuquerque, New Mexico, for Plaintiffs.
Ari Biernoff, Assistant Attorney General, Santa Fe, New Mexico, for Defendant Hector
Balderas, Jr.
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