Plate v. Johnson et al

Filing 94

Order Defendants' motion to dismiss for lack of subject-matter jurisdiction (Doc. 59 ) be, and the same hereby is, denied. Plaintiff's opposition and motion for oral argument (Doc. 91 ) be, and the same hereby is, denied The par ties must submit supplemental briefing on the issues raised on pages 17 and 18 of this order. Plaintiff's brief due 8/15/18; defendants' response due 8/29/18; and plaintiff's reply due 9/5/18. The parties' principal briefs may not exceed fifteen pages, and plaintiff's reply brief may not exceed seven pages. Judge James G. Carr on 7/25/18.(C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Richard William Plate, Administrator
of the Estate of Scott Allyn Plate,

Case No. 3:15CV1699

Plaintiff
v.

ORDER

Charles Johnson, et al.,
Defendants

This case under 42 U.S.C. § 1983 arises from the death of Scott Allyn Plate (Scott), a
detainee at the Lucas County, Ohio, Jail who died while in custody.
In August, 2013, officers from the Toledo Police Department arrested Scott twice within
a seven-hour span. After the second arrest, officers booked Scott into the county jail pending his
arraignment. There, according to the complaint, Scott told jail officials that he suffered from a
seizure disorder. He also told defendant Charles Johnson, a Deputy Sheriff, that he felt a seizure
coming on, but Johnson failed to secure medical treatment. Scott died in his cell.
Two years later, Scott’s father Richard Plate (Richard) applied to the Probate Court of
Sandusky County, Ohio, for authority to administer his son’s estate.
Under Ohio law, only the probate court of the county in which a decedent resided at the
time of death may appoint an administrator. O.R.C. § 2113.01; State ex rel. Lee v. Trumbull
Cnty. Probate Court, 83 Ohio St. 3d 369, 372–73 (1998). Richard’s application stated that his

son resided at Richard’s home in Sandusky County, and the probate court appointed Richard as
the administrator.
Richard then filed this § 1983 suit in his capacity as the estate administrator. He alleges
that Johnson was deliberately indifferent to Scott’s medical needs, and that Lucas County and its
Sheriff are liable for the constitutional violation under the rule of Monell v. Dep’t of Soc. Servs.,
436 U.S. 658 (1978).
Pending is the defendants’ motion to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of
subject-matter jurisdiction. (Doc. 59).
The gravamen of the motion is that Scott did not, in fact, reside in Sandusky County at
the time of his death. Defendants argue that the Sandusky County Probate Court therefore had no
power to appoint Richard to administer the estate, that the estate is “void ab initio, and in turn
this Court has no subject matter jurisdiction over the pending action.” (Doc. 60 at 24).
Because the validity of the appointment order affects only Richard’s capacity to sue, and
not my subject-matter jurisdiction, I deny the motion to dismiss. I also order further briefing as
described below.
Background
A. Scott’s Residency
Scott Plate was born in Adrian, Michigan. (Doc. 63 at 93).
After attending college in Iowa, Scott returned to Michigan and, in 1995, married
Kathleen Jiles. (Id. at 96). They lived together in Jackson County, Michigan, until early 2009,
when their divorce proceedings concluded. (Id. at 38). (Before the divorce decree issued, Scott
also lived for a period of time with his mother, Susan Plate, in Brooklyn, Michigan. (Doc. 73–6
at 24)). A significant factor in the couple’s divorce was Scott’s alcoholism. (Doc. 73–6 at 21).

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Sometime in 2010, Scott moved into his father’s home in Bellevue, a city in Sandusky
County, Ohio. (Doc. 73–6 at 24). Scott had his own apartment in the house. (Id.). According to
Richard, Scott kept important documents – tax returns, court orders relating to his child-support
obligations, his college diploma – at the Bellevue residence. (Id. at 15).
Between 2010 and 2012, Scott lived at different times: 1) with his mother in Brooklyn,
Michigan; 2) with his father in Bellevue, Ohio; 3) in various places in Port Clinton, Ohio and
Sandusky, Ohio (which is the seat of Erie County, Ohio); and 4) at homeless shelters in Ohio and
Michigan. (Doc. 73–6 at 35, 36). Scott also spent time at a number of rehabilitation facilities,
receiving treatment for his drinking problem.
It appears that, in early 2012, Scott was living in Jackson County, Michigan. In January,
for example, he spent time in the Jackson County jail after an arrest for not paying child support.
(Doc. 63 at 65). The next month, Scott was badly injured in a fight in Jackson, Michigan. He
spent three weeks at the University of Michigan Hospital, in Ann Arbor, after undergoing a
hemicraniectomy. (Id. at 71–72).
In late February, 2012, Scott moved into the Arbors of Waterville, a rehabilitation facility
in Waterville, Lucas County, Ohio. When he checked in, he gave his “last permanent address” as
his mother’s home in Brooklyn, Michigan. (Id. at 77). Scott remained at the Arbors until April 4,
2013, when he moved back to his father’s home in Bellevue. He lived with Richard for only two
weeks. He left Bellevue, took a job in Michigan, and moved into his mother’s home in Brooklyn.
(Doc. 63 at 16–17).
After the move, Scott returned to the Bellevue house only twice before his death: once to
show his father his new car, and once to visit with his new boss. (Id. at 17).

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Back in Michigan, meanwhile, Scott received mail at his mother’s house, opened a bank
account at a Bank of America branch in Brooklyn (Doc. 63 at 121, 123), and bought and
registered a car in Brooklyn (id. at 136, 138, 144). All of the paperwork associated with these
events indicates that Scott considered his then-current address to be his mother’s home in
Brooklyn. Then, in early June, 2013, sheriff’s deputies arrested Scott in Jackson, Michigan, for
operating a vehicle while intoxicated. (Id. at 84).
From that date until Scott’s death in late August, Scott’s dwelling place becomes harder
to pin down.
Between June and August, 2013, Scott was hospitalized several times in Toledo and Port
Clinton for issues relating to his alcoholism. (Id. at 116) (June 18, 2013 hospitalization in
Toledo); (id. at 168) (August 4, 2013 hospitalization in Port Clinton); (id. at 157–60) (emergency
medical assistance provided in Toledo on August 11, 2013). Associated medical records
indicated that Scott was either “homeless” (id. at 169), did not have a “local residence” (id. at
168), or had “mov[ed] out of state” – i.e., moved out of Ohio (id. at 116). Documentary evidence
also establishes that he spent the nights of July 31, August 1, and August 2 at a motel in Port
Clinton. (Id. at 172–73).
When, on August 24, 2013, Toledo police officers twice arrested and twice brought Scott
to the Lucas County Jail, Scott told the jail’s intake officer that he lived in Brooklyn, Michigan.
(Doc. 60 at 10; see also Doc. 60, Exh. N).
At the same time, Scott also told the officer that his name was “Eric Plate,” which is his
brother’s name. (Doc. 91 at 12). It also appears that Scott was intoxicated at the time of his first
arrest. As defendants concede, “he spent 4 hours in the detox cell” after that arrest, which
involved charges of public intoxication. (Doc. 60 at 6–7).

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B. Probate Proceedings
On August 18, 2015, Richard, acting through counsel – and apparently believing that
Scott was a Sandusky County resident when he died – applied to the Sandusky County Probate
Court for authority to administer his son’s estate. (Doc. 63 at 28–30).
Richard’s application, which stated that Scott resided at Richard’s home in Bellevue,
advised the probate court that:
This estate is being opened solely to pursue a potential wrongful death claim. The
estate has no assets or liabilities to be probated. The case is rapidly approaching
the statute of limitations and counsel needs to file the case no later than August
25, 2015. This case was just brought to counsel last week on Friday, August 7.
(Id. at 29).
The application represented that the beneficiaries of Scott’s estate knew about the probate
proceeding and the anticipated wrongful-death claim. (Id.). Likewise, Scott’s mother and his
three children (acting through their mother, Scott’s ex-wife Kathleen) waived their rights to
administer the estate. (Id. at 30).
In an order filed on August 20, the Probate Court appointed Richard the administrator of
Scott’s estate and issued him letters of authority. (Doc. 91–2 at 2). Richard then brought this suit
on August 24, one day before the two-year limitations period for the § 1983 claims expired. See
Ferrito v. Cuyahoga Cnty., 2018 WL 1757410, *3 (N.D. Ohio 2018) (Boyko, J.).
As far as the Probate Court’s online docket indicates, that court is unaware of the dispute
that has arisen in this case about the validity of the appointment order.
Standard of Review
Defendants purport to bring a factual attack on my subject-matter jurisdiction to
adjudicate this case. (Doc. 60 at 10–13).

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“A factual attack . . . raises a factual controversy requiring the district court to weigh the
conflicting evidence to arrive at the factual predicate that subject-matter [jurisdiction] does or
does not exist.” Wayside Church v. Van Buren Cnty., 847 F.3d 812, 817 (6th Cir. 2017) (internal
quotation marks omitted). In such a case, “the district court has wide discretion to allow
affidavits, documents, and even a limited evidentiary hearing to resolve jurisdictional facts.”
Gentek Bldg. Prods, Inc. v. Sherwin-Williams, Co., 491 F.3d 320, 330 (6th Cir. 2007).
The “factual controversy” that supposedly affects my subject-matter jurisdiction here is
Scott’s residence at the time of his death.
In State ex rel. Lee, supra, 83 Ohio St. 3d at 372–73, the Ohio Supreme Court
characterized O.R.C. § 2113.01, which governs the appointment of administrators for an intestate
decedent’s estate, as a grant of subject-matter jurisdiction to the probate court to administer the
estates of only those decedents who reside within the county at the time of their deaths.
Accordingly, if Scott did not reside in Sandusky County when he died, then the Sandusky
County Probate Court had no jurisdiction over his estate. Consequently, the order appointing
Richard to administer Scott’s estate would, under Ohio law, be “void, i.e., a legal nullity.” Black
v. Aristech Chem. Co., 2008-Ohio-7038, ¶23 (Ohio App.). And the defendants could collaterally
attack the order here. Id. at ¶24 (because the probate court “appointed appellant the administrator
of a non-resident decedent’s estate,” the appellee “could collaterally attack the judgment
[appointing an administrator] in a separate and distinct proceeding”).
But even if all of the foregoing were true, would that mean that I lack subject-matter
jurisdiction over this case?
As I explain below, the answer is “No.” That Richard’s appointment order may be a
nullity under Ohio law calls into question his capacity to sue, not my subject-matter jurisdiction.

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Nevertheless, both sides took extensive discovery on the factual issue at the heart of the
defense motion: Scott’s residence at the time of his death. It included the depositions of Scott’s
parents, ex-wife, and children, as well as written discovery relating to Scott’s various dwelling
places from roughly 2008 until his death in August, 2013. (Doc. 63; Doc. 73–1 through 21).
These materials have squarely presented the question of whether Scott was a Sandusky
County resident when he died. I therefore conclude that both sides had a full and fair opportunity
to address the “factual predicate,” Wayside Church, supra, 847 F.3d at 817, on which my
subject-matter jurisdiction supposedly depends, and, subject to such further proceedings as I
describe below, the present record is sufficient for me to address that question. 1
Discussion
A. Subject-Matter Jurisdiction
“[S]ubject-matter jurisdiction . . . refers to a tribunal’s power to hear a case[.]” U.S. v.
Satterwhite, 893 F.3d 352, 356 (6th Cir. 2018). It means “adjudicatory competence over a
category of disputes.” Wisconsin Valley Improvement Co. v. U.S., 569 F.3d 331, 333 (7th Cir.
2009).
1. Federal-Question Jurisdiction Exists
Federal district courts have subject-matter jurisdiction over “all civil actions arising under
the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “[A] case arises under
federal law when federal law creates the cause of action asserted.” Gunn v. Minton, 568 U.S.
251, 257 (2013).
1

I deny Richard’s request for an evidentiary hearing on this issue. (Doc. 91 at 35).
Richard asks for an opportunity “to present additional evidence,” but he does not say (or even
hint at) what that evidence consists of. In any event, the depositions of the key witnesses with
knowledge of Scott’s whereabouts in the weeks and months before his death, and the
documentary evidence supporting or undermining those witnesses’ accounts, provides an
adequate basis for resolving the question.
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Richard’s complaint on behalf of Scott’s estate alleges § 1983 claims that invoke this
court’s federal-question jurisdiction.
Richard alleges that Scott suffered from serious medical conditions (alcoholism and a
seizure disorder), that defendant Johnson, among others, knew of Scott’s seizure disorder, and
that Johnson deliberately failed to provide needed medical care to Scott, a detainee in his care.
Such a claim is cognizable under the Fourteenth Amendment. Ruth v. Spears, 589 F.3d
249, 254 (6th Cir. 2009) (“Pretrial detainees have a right under the Fourteenth Amendment to
adequate medical treatment, a right that is analogous to the right of prisoners under the Eighth
Amendment.”). Furthermore, such a claim, and the municipal-liability claim directed at Lucas
County and the Lucas County Sheriff, may be the subjects of a § 1983 suit. See id. at 254–57
(considering these exact claims in a § 1983 action).
Defendants nevertheless insist that I lack subject-matter jurisdiction because the order
appointing Richard to administer Scott’s is allegedly void.
According to the defense, Scott’s estate “was not created in compliance with Ohio law,
and . . . any actions filed on behalf of the estate are a nullity.” (Doc. 60 at 6). “As a result,”
defendants continue, “this case must be dismissed, as this Court has no subject matter
jurisdiction over the pending claims.” (Id.).
As just discussed, however, I do have subject-matter jurisdiction “over the pending
claims,” which fall within my federal-question jurisdiction.
Defendants’ challenge, then, is not really a challenge to my subject-matter jurisdiction
over this § 1983 action, but to Richard’s power to maintain this suit in light of the evidence
suggesting that Scott did not reside in Sandusky County at the time of his death. Framed that
way, defendants’ challenge arguably raises a question of standing, and “[w]hether a party has

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standing is an issue of the court’s subject-matter jurisdiction[.]” Lyshe v. Levy, 854 F.3d 855, 857
(6th Cir. 2017) (internal emphasis supplied).
2. Scott’s Estate Has Standing
Article III, § 2 of the Constitution authorizes the federal courts to hear only “Cases” and
“Controversies.”
“Standing to sue is a doctrine rooted in the traditional understanding of a case or
controversy.” Spokeo, Inc. v. Robins, --- U.S. ---, 136 S. Ct. 1540, 1547 (2016). The doctrine
“seeks to ensure the plaintiff has a personal stake in the outcome of the controversy.” Sumpter v.
Wayne Cnty., 868 F.3d 473, 490 (6th Cir. 2017).
The “irreducible constitutional minimum of standing consists of three elements. The
plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”
Spokeo, supra, --- U.S. at ---, 136 S. Ct. at 1547 (internal citations and quotation marks omitted).
To the extent that defendants’ motion raises an argument that either Richard or Scott’s
estate lacks standing, that argument would lack merit.
First, whether Richard has standing is irrelevant.
Richard brought this action in his representative capacity, as the administrator of his
son’s estate. (Doc. 1 at 1). This was entirely proper, for “‘only the purported victim, or his
estate’s representative(s), may prosecute a section 1983 claim.’” Smith v. Jones, 2014 WL
12591694, *2 (N.D. Ohio 2014) (Oliver, J.) (quoting Claybrook v. Birchwell, 199 F.3d 350, 357
(6th Cir. 2000)).
When an administrator like Richard brings a § 1983 action, moreover, he “sues not to
obtain a remedy for an injury done to him . . . personally; rather, a personal representative sues

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on behalf of an estate.” Estate of Reed v. Ponder, 2012 WL 1031487, *4 (M.D. Ala. 2012).
Therefore, my jurisdiction does not turn on whether Richard personally suffered an injury in fact.
Second, Scott’s estate has standing.
A decedent’s estate is “an aggregate comprising the assets and liabilities of the decedent.”
State ex rel. Liposchak v. Indus. Comm’n of Ohio, 90 Ohio St. 3d 276, 284 (2000) (citing
BLACK’S LAW DICTIONARY 567 (7th ed. 1999)). “An estate cannot sue or be sued; any action for
against it must be brought by or against the executor or personal representative of the decedent.”
West v. West, 1997 WL 559477, *5 (Ohio App. 1999) (citing 34 Ohio Jur. 2d (1982) 271,
Decedents’ Estates, § 1877).
But a decedent’s estate can incur an injury, as Ohio law recognizes.
“[A] decedent’s estate” itself “may recover for injuries suffered by the decedent before
his death” by prosecuting a survival claim. Peters v. Columbus Steel Castings Co., 115
Ohio St. 3d 134, 137 (2007). This survival claim, moreover, is the predicate on which an Ohio
decedent’s (or his estate’s) § 1983 claim rests (though, unlike the state-law survival claim, the
§ 1983 claim permits recovery for damages caused by the decedent’s death itself). See generally
Jaco v. Bloechle, 739 F.2d 239, 241–45 (6th Cir. 1984).
In this case, Scott’s estate suffered injuries in fact – Scott’s death as well as the injuries
Scott suffered before he died – and it seeks, through its administrator, to recover the damages
arising from those injuries that are traceable to defendants’ conduct. Accordingly, the estate has
Article III standing.
My conclusion is consistent with a persuasive district court opinion that addressed an
estate’s Article III standing in a § 1983 case, Fletcher v. City of New London, 2017 WL 690533
(D. Conn. 2017).

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Fletcher stemmed from the death of a man named Gilbert while in police custody. After a
state probate court appointed two relatives to administer Gilbert’s estate, “the initial complaint in
th[e] case was filed, naming ‘Estate of [Mr.] Gilbert’ as the plaintiff.” Id. at *2. The defendants
moved to dismiss for lack of subject-matter jurisdiction, contending that the estate lacked
standing to sue. Id.
The district court rejected the argument. After explaining that the defendants’ argument
conflated the concept of the estate’s standing with its capacity to sue, id. at *3, the court held that
the estate had Article III standing because it suffered an injury in the form of damages from
Gilbert’s death:
Here, while the Estate lacked capacity and was not the real party in interest, it did
have standing under Article III of the U.S. Constitution: it sought redress in the
form of damages from the death of Mr. Gilbert, an “injury in fact” “fairly
traceable” to the actions of the defendants.
Id. at *6 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).
Other courts have likewise held that an estate had Article III standing to pursue claims for
violations of federal law.
For example, in Estate of Ponder, supra, 2012 WL 1031487, the decedent’s estate filed a
complaint alleging that a former employer violated the decedent’s rights under the Americans
with Disabilities Act, and that the violation contributed to the decedent’s death. Defendants
moved to dismiss, arguing that estate “has no standing to bring this action because, under
Alabama law, the personal claims of a decedent which existed prior to . . . her death . . . survive
in favor of the decedent’s personal representative[.]” Id. at *4.
The district court disagreed. Because “the Estate itself could trace a direct injury” – the
decedent’s death – “to the alleged acts of the defendants,” the court held that “the Estate has

11

standing.” Id. 2; see also Werner v. Potter, 2006 WL 839156, *23 (E.D. Wisc. 2006) (“Under
traditional Article III analysis, the estate appears to have standing insofar as it stands in the shoes
of the decedent who is alleged to have suffered an injury in fact.”); cf. Koho v. Forest Labs, Inc.,
2015 WL 11198941, *2 (W.D. Wash. 2015) (holding, in the context of a state-law survivorship
claim, that “a decedent’s estate can be injured by harms that a defendant inflicts on the decedent
while the decedent is alive,” and that the estate therefore “suffered injury in fact” sufficient for
Article III purposes).
Defendants are likely to respond that Scott’s estate could not suffer an injury in fact
because the estate never existed.
According to the defendants, “[t]he single most fundamental aspect of every action
brought by the estate of a deceased individual lies in the creation of the estate itself.” (Doc. 60 at
13). In their view, it is impossible to “create a lawful estate” if the administrator fails to “open
and obtain letters of authority for an ‘intestate’ estate in the county [a] decedent resides at the
time of death.” (Id. at 15) (citing O.R.C. § 2113.01). Because Richard purported to open the
estate in Sandusky County, where Scott allegedly did not reside, defendants contend that Richard
did not “properly create an estate[.]” (Id. at 15).
These arguments lack merit.
As noted above, an estate is simply the name the law gives to a decedent’s collection of
assets and liabilities. State ex rel. Liposchak, supra, 90 Ohio St. 3d at 284. Among the assets that
a decedent’s estate possesses, moreover, is a survivor claim for injuries that the decedent
incurred before the decedent’s death. Peters, supra, 115 Ohio St. 3d at 136–37. Furthermore, it

2

The court also concluded, as did the court in Fletcher, supra, and as I do, infra, that
“the Estate’s ability to assert the claims in the amended complaint is not a question of standing,
but of capacity.” Id. at *4.
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cannot “sue or be sued; any action for or against it must be brought by or against the executor[.]”
West, supra, 1997 WL 559477 at *5.
All of these rules seem to presuppose the existence, upon the death of the decedent, of an
estate, without regard to whether someone has purported to “open” the estate in probate court.
Furthermore, none of the cases the defendants cite actually held that opening an estate in
probate court is a prerequisite to the creation or existence of a so-called “lawful estate.” Rather,
the cases hold only that: 1) the probate court must have subject-matter jurisdiction over an estate
before it can appoint an administrator (Doc. 60 at 13–16); or 2) on a given set of facts, a
decedent was or was not a resident of a particular county (id. at 16–17).
The district court in Koho, supra, 2015 WL 11198941, concluded in a similar case
(though applying Washington law) that probate proceedings were not a prerequisite to the
existence of a “lawful estate.”
In Koho, the plaintiff filed a survivor claim on behalf of her decedent before a
Washington probate court appointed her the estate administrator. 2015 WL 11198941 at *1.
Moving to dismiss the complaint on subject-matter-jurisdiction grounds, defendants argued that
“there was ‘no plaintiff’ at the time the case was filed.” Id. According to the defendants, the
decedent’s “estate did not even exist” before the plaintiff opened the estate in probate court and
received her appointment as estate administrator. Id.
Just like the defendants’ argument here with respect to Ohio law, the defendants in Koho
“cite[d] no case for the proposition that an estate does not exist – and is not injured – for
purposes of Washington’s survivorship statute until steps are taken to open the probate estate.”
Id. at *2.

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As the district court explained, moreover, Washington law – like Ohio law here –
“contemplate[d] that a decedent’s estate can be ‘injured’ by harms that a defendant inflicts on the
decedent while the decedent is still alive.” Id. The necessary implication, the district court found,
was that an estate must exist before the opening of a probate action; otherwise, an estate could
never bring a survivor claim:
If this estate does not even exist for the purposes of sustaining a lawsuit until
some point after the decedent’s death, then this estate could not be injured by a
defendant’s actions, and thus it could have no standing and no representative
would ever have capacity to sue on its behalf.
Id.
Rejecting that illogical outcome, the court held that the decedent’s estate “suffered injury
in fact and existed for purposes of Washington law at the time that [he] died.” Id.
So too here: Scott’s estate existed at the time of death, and it suffered an injury in the
form of, at the very least, the injuries before his death, cf. Peters, 115 Ohio St. 3d at 137, and, as
well, his death itself, cf. Jaco, supra, 739 F.2d at 241–45. Because Scott’s estate suffered an
injury in fact, defendants’ standing arguments, such as they are, do not undermine my subjectmatter jurisdiction.
B. Capacity
“Capacity to sue or be sued under Rule 17(c) involves a party’s personal right to litigate
in federal court.” Fletcher, supra, 2017 WL 690533 at *3.
Defendants’ challenge to Richard’s power to bring this suit on the estate’s behalf
implicates his capacity to sue. See Koho, supra, 2015 WL 11198941 at *2 (“Plaintiff’s failure to
become the representative of Ilich’s estate is an issue of her capacity to sue, and not an issue of
standing or subject-matter jurisdiction.”); accord Fletcher, supra, 2017 WL 690533 at *3–6
(same); Estate of Ponder, supra, 2012 WL 1031487 at *4 (same).

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Under Rule 17(b)(3), “the law of the state in which the district court sits governs a party’s
capacity.” Firestone v. Galbreath, 976 F.2d 279, 283 (6th Cir. 1992). Accordingly, Ohio law
determines whether Richard can sue on behalf of Scott’s estate.
1. Ohio Law on Estate Administrators’ Capacity to Sue
Because an estate lacks capacity to sue, it must act through an administrator or personal
representative. Peters, supra, 115 Ohio St. 3d at 137; Smith, supra, 2014 WL 12591694 at *2.
The administrator of an intestate decedent’s estate must, in turn, receive his appointment from
“the probate court of the county in which the decedent was a resident at the time of his death.”
O.R.C. § 2113.01.
The probate court’s power to administer an intestate decedent’s estate is a question of the
court’s subject-matter jurisdiction. State ex rel. Lee, supra, 83 Ohio St. 3d at 372–73. If the
decedent was not a resident of the county in which the probate court sits, then that court lacks
subject-matter jurisdiction over the estate. Black, supra, 2008-Ohio-7038 at ¶¶23–24. Any order
issued by a probate court without subject-matter jurisdiction is a nullity, and any party affected
by such an order – including an order appointing an administrator – may collaterally attack it.
See Ohio Pyro, Inc. v. Ohio Dep’t of Commerce, 115 Ohio St. 3d 375, 380 (2007) (describing
collateral attacks in general); Black, supra, 2008-Ohio-7038, ¶23 (describing collateral attacks
vis-à-vis probate courts purporting to exercise jurisdiction over a non-resident decedent’s
estate). 3

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For these reasons, I reject Richard’s arguments that this court has no power to examine
the validity of his appointment. For one thing, Richard relies on inapposite cases discussing the
“probate exception” to federal courts’ subject-matter jurisdiction. That doctrine applies in
diversity cases, not federal-question cases. For another, Richard relies on ancient Ohio cases that
do not reflect the Ohio Supreme Court’s current view that a party can collaterally attack an order
of the probate court for lack of subject-matter jurisdiction.

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2. Forfeiture
Defendants’ challenge to Richard’s ability to prosecute this suit implicates these rules.
They contend, with substantial evidentiary support, that Scott was not a Sandusky County
resident when he died. If that were the case, then the Sandusky County Probate Court would
have lacked subject-matter jurisdiction over Scott’s estate, Richard’s appointment would be a
nullity, and he would not have the capacity to sue.
Richard disputes the merits of the defendants’ arguments, but he also argues that
defendants “waived any challenge” to his capacity to sue by failing to raise that issue as an
affirmative defense in their answer. (Doc. 91 at 20). 4 He also notes that “[t]his case has
proceeded for over two years without Defendants ever raising any issues related to” his capacity
to sue. (Id.).
Defendants’ primary response – that they cannot “waive” this issue because it implicates
my subject-matter jurisdiction (Doc. 92 at 37) – has no merit. See pp. 7–14, supra.
But they also argue that Richard “sandbagged” them and the probate court by
“misrepresent[ing]” Scott’s residence. (Id. at 38). According to the defense, it did not learn until
July and August, 2017, that Scott long ago moved out of his father’s Bellevue residence – and
thus that he was not a Sandusky County resident. (Id.). Because they moved to dismiss the case
about three weeks after discovering that information, defendants deny that a forfeiture occurred.
Civil Rule 9(a)(2) provides that a party wishing to raise a lack-of-capacity challenge
“must do so by a specific denial, which must state any supporting facts that are peculiarly within
the party’s knowledge.”

4

Although the parties frame the issue as one of waiver, it is really one of forfeiture: did
defendants “fail to make the timely assertion of a right”? U.S. v. Mabee, 765 F.3d 666, 671 (6th
Cir. 2014).
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“‘[A]lthough an objection to a party’s capacity is not an affirmative defense, it can be
analogized to an affirmative defense and treated as waived if not asserted by motion or
responsive pleading.’” Tri-Med Fin. Co. v. Nat’l Century Fin. Enters., Inc., 208 F.3d 215, *5
(6th Cir. 2000) (quoting 5 Wright and Miller, Federal Practice & Procedure § 1295 at 574 (2d ed.
1990)). “‘Early waiver is necessary to give meaning to the requirement in Rule 9(a) that capacity
must be put in issue by a specific negative averment.’” Id. (quoting 5 Wright and Miller, Federal
Practice & Procedure § 1295 at 574 (2d ed. 1990)).
To the extent Richard argues that defendants forfeited the issue by not raising it in their
answer, I disagree. Courts within the Sixth Circuit have held, and I agree, that it is permissible to
raise a lack-of-capacity objection in a Rule 12 motion. E.g., Longwood, LLC v. Voegele, 2018
WL 1660086, *5 (W.D. Ky. 2018) (collecting cases).
But the parties’ briefs, which cite no relevant case law and address the issue only
perfunctorily, do not permit me to make an informed decision on the forfeiture question. I will
therefore order supplemental briefing on the question whether defendants forfeited their
objection to Richard’s capacity to sue.
The parties’ briefs should cite and discuss Sixth Circuit cases, as well as district court
cases from within the Circuit, addressing whether a party has forfeited its capacity objection. The
parties may also discuss any persuasive out-of-circuit authority they deem appropriate.
In briefing the issue, the parties should keep in mind that, at least at present, I am inclined
to find that the timing of the defense’s motion weighs strongly in favor of forfeiture.
This is because defendants knew from the August, 2013, booking tapes that Scott claimed
to reside in Brooklyn, Michigan. That information seems sufficient to have put them on notice
that Scott may not have been a Sandusky County resident, and thus given them an ample basis to

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challenge Richard’s capacity much earlier in this litigation. And despite defendants’ many, many
assertions that Richard purposefully – and even fraudulently – misrepresented his son’s residence
to the Sandusky County Probate Court (Doc. 92 at 8, 10, 11, 12, 25, 30, 38, 42), the defendants
have not cited a shred of evidence to substantiate their allegations. Nor have defendants bothered
to explain why Richard would improperly and in bad faith turn to that court for power to
administer his son’s estate, given that no other member of Scott’s family sought that power –
and, indeed, when other family members who were entitled to administer the estate waived their
rights to do so. (Doc. 63 at 30).
The parties’ briefs should also address the question of prejudice and, as well, any other
consideration relevant to the forfeiture inquiry.
Finally, if I decide that defendants did not forfeit their objection, and, further, that Scott
did not reside in Sandusky County, Ohio, the next question would be the propriety of substituting
the “proper” administrator of Scott’s estate, whoever that may be, as the plaintiff in this case.
The parties’ briefs should therefore address whether such a substitution would be permissible
and appropriate under Fed. R. Civ. P. 17(a)(3) and Levinson v. Deupree, 345 U.S 648 (1953).
Conclusion
It is, therefore,
ORDERED THAT:
1. Defendants’ motion to dismiss for lack of subject-matter jurisdiction (Doc. 59) be,
and the same hereby is, denied;
2. Plaintiff’s opposition and motion for oral argument (Doc. 91) be, and the same
hereby is, denied;

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3. The parties must submit supplemental briefing on the issues raised on pages 17
and 18 of this order. Plaintiff’s brief due August 15, 2018; defendants’ response
due August 29, 2018; and plaintiff’s reply due September 5, 2018.
4. The parties’ principal briefs may not exceed fifteen pages, and plaintiff’s reply
brief may not exceed seven pages.
So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

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