McAdoo v. United States of America et al

Filing 63

ORDER directing Pltf obtain counsel by 3/5/2013; upon entry of an appearance by counsel, the Court will allow counsel 20 days to file an amended complaint; if Pltf fails to comply with this Order and obtain counsel within time allowed, the Court will recommend the District Court dismiss this action in its entirety without prejudice; and pending 48 & 50 Motions to Dismiss are DENIED WITHOUT PREJUDICE. Signed by Magistrate Judge Dennis Howell on 2/3/14. (Pro se litigant served by US Mail.)(ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:12cv328
CARL E. MCADOO, EXECUTOR FOR )
THE ESTATE OF CHARLES RAFORD )
MCADOO, SENIOR, DECEASED,
)
)
Plaintiff,
)
)
v.
)
)
UNITED STATES OF AMERICA, et al., )
)
Defendants.
)
___________________________________ )

ORDER

Pending before the Court are the Motions to Dismiss [# 48 & # 50]. Plaintiff
brought this action pro se as the Executor of the Estate of Charles McAdoo, Sr.
(the “Estate”). The Amended Complaint asserts eighteen claims against
Defendants. Defendants now move to dismiss the Amended Complaint on various
grounds. Upon a review of the record, the relevant legal authority, and the parties’
briefs. The Court DENIES without prejudice the motions [# 48 & # 50] and
DIRECTS Plaintiff to obtain counsel within thirty (30) days of the entry of this
Order.
I.

Background

Plaintiff brought this action pro se against numerous individuals, as well as
federal and local governmental entities. All of the claims stem from the death and
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treatment of Plaintiff’s father. In total, Plaintiff asserts eighteen claims against
Defendants. All of these claims are asserted by Plaintiff in his capacity as
Executor of the Estate. Because Plaintiff is prosecuting these claims pro se in his
capacity as Executor of the Estate, as opposed to on his own behalf, the Court is
faced with the threshold question of whether he may proceed in this case pro se, or
whether Plaintiff may only prosecute such claims through counsel.
II.

Analysis

Individuals have a statutory right to prosecute their own cases pro se in
federal courts. 28 U.S.C. § 1654; see also Myers v. Loudoun Cnty. Pub. Sch., 418
F.3d 395, 400 (4th Cir. 2005) (“An individual unquestionably has the right to
litigate his own claims in federal court . . . .”) “The right to litigate for oneself,
however, does not create a coordinate right to litigate for others.” Myers, 418 F.3d
at 400 (emphasis in original) (holding that a parent may generally not proceed pro
se on behalf of his or her child). As the Fourth Circuit has explained, “we consider
the competence of a layman representing himself to be clearly too limited to allow
him to risk the rights of others.” Oxendine v. Williams, 509 F.2d 1405, 1407 (4th
Cir. 1975) (holding that an individual may not proceed pro se on behalf of a class
of plaintiffs). “The law contains so many esoteric pitfalls for an untrained advocate
. . . that the risk of inadvertent waiver or abandonment of an issue is too high for us
to allow a pro se litigant to represent another person.” Guest v. Hansen, 603 F.3d
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15, 20 (2nd Cir. 2010).
Here, Plaintiff brings these claims as the Executor of the Estate; he does not
assert claims in his individual capacity. Although the Fourth Circuit has not yet
directly addressed the issue of whether or under what circumstances a Plaintiff
may proceed pro se on behalf of an estate, other circuits have held that where an
administrator or executor of an estate is not the sole beneficiary or where the estate
has creditors, then he or she may not represent the estate pro se in federal court.
Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007); Shepherd v. Wellman, 313
F.3d 963, 970 (6th Cir. 2003); Pridgen v. Andresen, 113 F.3d 391, 393 (2nd Cir.
1997); see also Witherspoon v. Jeggords Agency, Inc., 88 Fed. App’x 659 (4th Cir.
2004) (unpublished). As the Seventh Circuit explained in Malone:
Although individuals have a right to proceed pro se . . . administrators
do not act on behalf of themselves, but on behalf of all of the
beneficiaries of an estate. Consequently, if the administrator is not the
sole beneficiary of the estate, then he or she may not represent the
estate in court.
474 F.3d at 937.
The Second Circuit, however, has also held that the administrator of an
estate may proceed pro se where the administrator is the sole beneficiary of the
estate and the estate has no creditors.1 Guest, 603 F.3d at 21; see also McSwain v.

1 Although the estate in Guest had two beneficiaries when the case was brought, one of the beneficiaries
disclaimed any interest in the estate and the administrator affirmed that the estate had no creditors. 603 F.3d at 21.

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Schrubbe, 382 Fed. App’x 500, 502 (7th Cir. 2010) (unpublished) (allowing sole
heirs to proceed pro se); Hiles v. Army Review Bd. Agency, No. 1:12-cv-673,
2013 WL 1196594, at *5 (S.D. Ohio Mar. 25, 2013) (unpublished) (allowing sole
beneficiary of estate to proceed pro se). In reaching its decision, the Second
Circuit reasoned:
It is only a legal fiction that assigns the sole beneficiary's claims to a
paper entity—the estate—rather than the beneficiary himself.
Accordingly, pro se representation is consistent with our
jurisprudence both on the right to self-representation and on the
prohibition of appearances by non-attorneys on behalf of others.
Because the administrator is the only party affected by the disposition
of the suit, he is, in fact, appearing solely on his own behalf. This
being so, the dangers that accompany lay lawyering are outweighed
by the right to self-representation, which we have described as “a right
of high standing, not simply a practice to be honored or dishonored by
a court depending on its assessment of the desiderata of a particular
case.” O'Reilly v. N.Y. Times Co., 692 F.2d 863, 867 (2d Cir.1982).

Id.
Plaintiff asserts the claims in the Amended Complaint as the Executor of the
Estate of his deceased father, Charles Raford McAdoo, Sr. (Pl.’s Am. Compl. ¶
1.) Although Plaintiff contends that the Estate has no creditors, Plaintiff is not the
only beneficiary of the Estate. Plaintiff’s brother, Charles Raford McAdoo, Jr. and
sister, Carolyn McAdoo-Smith are also beneficiaries of the Estate and entitled to a
portion of any recovery in the wrongful death claim. Plaintiff, however, contends
that his brother has abandoned any claim to the Estate and, thus, he may litigate
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these claims pro se as the sole beneficiary of the Estate.
Although circumstances may exists where a beneficiary may abandon all
claims to an estate and allow a sole remaining beneficiary to litigate claims pro se
as executor of an estate, the Court finds that based on the specific facts of this case,
the Court cannot allow Plaintiff to proceed pro se. At least one of the claims
asserted by Plaintiff in the Amended Complaint is a wrongful death claim. (Pl.’s
Am. Compl. ¶ 573.) “In an action brought under the Wrongful Death Act the real
party in interest is not the estate but the beneficiary of the recovery as defined in
the Act.” Evans v. Diaz, 430 S.E.2d 244, 245 (N.C. 1993); see also Beck v. Beck,
624 S.E.2d 411, 415 (N.C. Ct. App. 2006). Moreover, the proceeds of a wrongful
death recovery do not generally constitute assets of the estate. Id. The North
Carolina Supreme Court has also held that despite statutory provision allowing an
individual to renounce property received as an heir or next of kin, an individual
may not renounce his or her share of wrongful death proceeds. Evans v. Diaz, 430
S.E.2d 244, 247-48 (N.C. 1993); Janet H. McLanb and Lisa K. Vira, Edwards’
North Carolina Probate Handbook, § 36:3 (2013). “Altering the identity of
wrongful death beneficiaries through the device of renunciation would alter the
measure of damages for which the defendant could be liable.” Evans, 430 S.E.2d
at 247. Thus, even if Plaintiff’s brother did legally renounce his claim to the assets
of the Estate, he did not renounce his share of the wrongful death proceeds by
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doing so. There also remains the interest of the decedent’s daughter and Plaintiff’s
sister, Carolyn McAdoo-Smith , in the wrongful death claim proceeds, if any.
Moreover, the pitfalls of allowing an individual to litigate the claims of an
estate where other beneficiaries exists is abundantly clear in this case. While
Plaintiff has pointed this Court to some relevant legal authority in response to the
Defendants’ Motions to Dismiss, his decisions and choices in litigating these
claims have the potential to adversely impact the other beneficiaries of any
wrongful death claim, as well as the beneficiaries of the Estate. For example, were
this Court to address the merits of the Motions to Dismiss, the Court would
recommend that the District Court dismiss most, if not all, of the claims presented
on somewhat technical grounds. Such a ruling would obviously adversely impact
any other potential beneficiaries. An attorney, however, might be able to
successfully plead a claim against one or more of the Defendants in this case.
Because Plaintiff is not the sole beneficiary of the Estate, Plaintiff’s brother and
sister are beneficiaries of any recovery from a wrongful death action, and based on
the unique facts of this case, the Court finds that Plaintiff may not proceed pro se
in this case; Plaintiff must first obtain the assistance of counsel if he wishes to
prosecute these claims in federal court. Finally, the Court’s ruling in this case is
consistent with the decisions of other federal courts that have not allowed an
individual to proceed pro se whether the individual is not the sole beneficiary of
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the estate. See Johnson v. Marberry, No. 12-4390, 2013 WL 6570943, *1 (3rd
Cir. Dec. 16, 2013); Genworth Life Ins. Co. v. Richardson, No. 12 CV 4283, 2013
WL 5376573, at *1-2 (N.D. Ill Sept. 25, 2013); Kimble v. Withers, Civil Action
No. 5:12cv00110, 2013 WL 6147678, at *4 (W.D. Va. Nov. 22, 2013); Nordberg
v. Town of Charlton, Civil Action No. 11-40206-FDS, 2012 WL 2990763, at *4
(D. Mass. Jul. 19, 2012); United States v. Nazarian, Civil Action No. DKC 102962, 2011 WL 1559378, at *2 (D. Md. Apr. 25, 2011).
III.

Conclusion

The Court DIRECTS Plaintiff to obtain counsel by March 5, 2013. Upon
the entry of an appearance by counsel, the Court will allow counsel twenty (20)
days to file an amended complaint that sets forth any non-frivolous claims arising
from the death of Plaintiff’s father. If Plaintiff fails to comply with this Order and
obtain counsel within the time allowed, the Court will recommend that the District
Court dismiss without prejudice this action in its entirety. Finally, the Court
DENIES without prejudice the pending Motions to Dismiss [# 48 & # 50]

Signed: February 3, 2014

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