Opinion
C. A. 2:21-03756-RMG-MHC
03-31-2022
Alan G. Nix, Estate of Norma J. Nix, Plaintiffs, v. McCabe, Trotter, & Beverly, P.C.; Chuckle Hoover, LLC; Cedar Management Group, LLC; Park West Master Association, Inc.; Land Tech Charleston, LLC; Churchill Park; Churchill Park Homeowners' Association, Inc.; Realmanage, LLC; Richard Riccoboni; Luzuriaga Mims, LLP, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
This is civil action filed by Plaintiffs Alan G. Nix (Alan Nix) and the Estate of Norma J. Nix (Estate). Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
By Order dated January 26, 2022, Plaintiffs were given an opportunity to provide the necessary information and paperwork to bring the case into proper form for evaluation and possible service of process. Plaintiffs were warned that failure to provide the necessary information (a summons form listing every Defendant named in this matter and fully completed and signed pro se party's answers to Local Civil Rule 26.01 (D.S.C.) interrogatories) within the timetable set forth in the Order would subject the case to dismissal. See ECF No. 6. The time to bring this case into proper form has now lapsed, and Plaintiffs have failed to provide a response to the proper form Order or to contact the Court in any way.
In the Order, Plaintiffs were also advised of material deficiencies in the Complaint and given an opportunity to file an amended complaint. See id. No amended complaint has been filed.
In the Order, it was also noted that Plaintiff Alan Nix appeared to be attempting to bring this action on behalf of the Estate but had alleged no facts to indicate that he may appear for or represent the Estate. While 28 U.S.C. § 1654 allows individuals to “plead and conduct their own cases personally, ” the statute does not extend that right to represent other parties. Under federal law, “a person ordinarily may not appear pro se in the cause of another person or entity.” See Pridgen v. Andresen, 113 F.3d 391, 392-93 (2nd Cir. 1997) (pro se litigant may not represent corporation, estate, partnership, or “his or her minor child”). Courts are in general agreement that where an estate has beneficiaries other than the personal representative, the estate must be represented by counsel. See Witherspoon v. Jeffords Agency, Inc., 88 Fed.Appx. 659 (4th Cir. 2004); Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007); Shepard v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002); Pridgen, 113 F.3d at 393 (“[W]hen an estate has beneficiaries or creditors other than the administratrix or executrix [or personal representative], 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.”) (internal quotations omitted).
Although a pro se litigant cannot generally represent third parties in a lawsuit, there may be an exception to this rule where the person attempting to represent the estate pro se is the personal representative of the estate and there are no creditors or other beneficiaries. See Witherspoon, 88 Fed.Appx. 659, at **1 (remanding the matter for further proceedings to ascertain whether there are any creditors involved). Plaintiff Alan Nix has not alleged that he is the personal representative of the Estate (and he has not filed a copy of any appointment as personal representative of the Estate). Additionally, he has not alleged that there are no creditors and no other beneficiaries of the Estate.
Plaintiffs were directed to apprise the Court, on or before February 28, 2022, whether counsel had been obtained to represent the Estate and were advised that failure to do so might result in dismissal of the Estate's claims without prejudice. See ECF No. 6; see also Koerth v. Cty. of Montgomery, No. 3:20-CV-00878, 2021 WL 2836979 (M.D. Tenn. June 18, 2021) (recommending dismissal of claims brought by a pro se plaintiff on behalf of an estate where the plaintiff failed to obtain counsel or show that she could represent the estate pro se), report and recommendation adopted, 2021 WL 2827093 (M.D. Tenn. July 7, 2021). Plaintiffs have not responded to the Order. Thus, to the extent Plaintiff Alan Nix brings claims on behalf of the Estate, those claims must also be dismissed without prejudice because of Alan Nix's failure to obtain counsel or show that he can represent the estate pro se.
Based on the foregoing, it is recommended that this action be dismissed, without prejudice, in accordance with Rule 41, Fed.R.Civ.P. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990) (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
The Clerk shall mail this Report and Recommendation to Plaintiffs at their last known address. If Plaintiffs satisfy the requirements for proceeding with this case as is set forth in the proper form Order within the time set forth for filing objections to this Report and Recommendation, the Clerk is directed to vacate this Report and Recommendation and return this file to the undersigned for further handling. However, if Plaintiffs fail to do so, then at the end of the time for filing objections, the Clerk shall forward this Report and Recommendation to the District Judge for disposition. Ballard v. Carlson, 882 F.2d at 95 (Magistrate Judge's prior explicit warning that a recommendation of dismissal would result from Plaintiff failing to obey his order was proper grounds for the district court to dismiss suit when Plaintiff did not comply despite warning).
After a litigant has received one explicit warning as to the consequences of failing to timely comply with an order of a Magistrate Judge, and has failed to respond to that order, the district court may, under Fed.R.Civ.P. 41(b), dismiss the complaint based upon the litigant's failure to comply with that court order. See Simpson v. Welch, 900 F.2d 33, 35-36 (4th Cir. 1990); see also Ballard, 882 F.2d at 95-96 (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
The parties are also referred to the Notice Page attached hereto.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).