The Dead Cannot Join Litigation

• Date: 01 April 2022
• Author: Josephine M. Bahn

Published in Litigation News Volume 47, Number 3, Spring 2022. © 2022 b y the American Bar Ass ociation. Reproduc ed with permission. A ll rights reserv ed. This information or an y portion there of may not be copied or dis seminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

Published in Litigation News Volume 47, Number 3, Spring 2022. © 2022 b y the American Bar Ass ociation. Reproduc ed with permission. A ll rights reserv ed. This information or an y portion there of may not be copied or dis seminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

n a case of rst impression, the U.S. Court of Appeals

for the Ninth Circuit held that when a person is

deceased and no estate is opened, there is no Article III

standing to name him or her as a party. The court in

LN Management, LLC Series 5664 Divot v. JPMorgan

Chase Bank, N.A. held that the dead lack the required capac-

ities a litigant must have to establish a case or controversy.

ABA Litigation Section leaders observe that the court was

concerned about a paper adversary and the impact suing a

dead person would have on the living.

Kit Dansker bought a home in 2003 with an $83,000 mort-

gage. The mortgage was then sold to Fannie Mae. Dansker died

in 2009, and her property was sold in foreclosure to a manage-

ment company. The mortgage holders challenged that foreclo-

sure, arguing that it violated federal foreclosure rules. In 2013,

the management company led a quiet title action in state court

against Dansker and the successor to the original mortgage

holder. A few months after it led that action, the management

company led a suggestion of death and moved to name the

Estate of Dansker as a defendant, even though “no one had

effectuated any probate action.”

The district court held that Dansker had been fraudulently

joined and denied a request to substitute Dansker’s estate, reason-

ing that the foreclosure had removed her right to the property.

On appeal, the Ninth Circuit noted that the management

company had not identied a representative of Dansker’s

estate. Instead, it sought to serve an alleged beneciary of

Dansker’s estate as if she had been a representative. The court

observed that while the management company had known of

Dansker’s death for ve years, it had neither found an estate

representative nor made any effort to have one appointed.

The “Estate of Kit Dansker” only had meaning insofar as the

machinery of court had been set into motion for a represen-

tative, it reasoned, and without any, the management compa-

ny’s request to name the estate was “clearly improper.”

The court then turned to the propriety of naming a dead

person as a party in the absence of an open estate and found

it “self-evident” that the dead cannot be sued or sue. The

court distinguished cases where attorneys either did not

know the opposing party was deceased or made a mistake

as they raced to meet a court deadline. Because those cases

revolved around whether substituting an estate was the

proper procedure, those substitution questions did not apply.

“In all events,” the court said, “the consensus of our sister

courts is unanimous: you cannot sue a dead person.”

It reasoned that there were “sound logical reasons” not

to allow suits against the dead, including an injustice occur-

ring against the deceased, injustices against the living, and a

potential deprivation of the living’s due process rights—the

latter being what could occur in the instant case.

Litigation Section leaders distinguish litigants that are

deceased at the outset of an action from those that die dur-

ing the course of the litigation. “Courts don’t like manufac-

tured controversies or straw disputants,” notes William T.

Hangley, Philadelphia, PA, cochair of the Section’s Federal

Practice Task Force.“It’s a life and death difference, in the

one case there is an actual dispute with an actual person.If

that person dies, there are procedures for continuing (in some

instances), but we know the controversy was already there.

In the Dansker situation, there is either no controversy with a

Dansker or an attempt to moot one by ghting with a paper

adversary,” Hangley suggests.

The court was also concerned with potential outcomes

a case against a deceased person could have against the liv-

ing. “The court was obviously troubled by the failure of the

management company to know the difference between a dead

person and an estate, who have no legal existence, and the

executor or representative of an estate (or next of kin), who is

a live person, a proper party with a residence for jurisdictional

purposes, and who can litigate or defend the nancial interests

of the deceased,” notes Jeffrey J. Greenbaum, Newark, NJ,

cochair of the Section’s Federal Practice Task Force.

“Heirs of a dead person could be harmed if a plaintiff sues a

dead person rather than a court-appointed personal representa-

tive of the deceased’s estate. Indeed, where a party sues only a

dead person, there are likely to be basic notice issues—as heirs

of an estate or the estate’s personal representative may end up

having no notice that a litigant is attempting to secure the prop-

erty of the deceased,” says Marco A. Pulido, Costa Mesa, CA,

member of the Section’s Appellate Practice Committee.

RESOURCES

Kenneth Hous e v. Mitra QSR KNE LLC, No. 18 -1778 (4th Cir. 2019).

LN Mgmt., L LC Series 5664 Divot v. JP Morgan Chase Bank, N .A.,

No. 18-15 402 (9th Cir. 2020).

Digital versio ns of both Civil Procedur e stories, including li nks to

resources an d authorities, are availab le at http://bit.ly/LN-civp ro.

The Dead Cannot Join Litigation

By Josephine M . Bahn, Litigatio n News Associate Editor

AMERICA N BAR ASSOCIATION SPRING 20 22 • VOL. 47 NO. 3 | 21