By Dawn Causey, Tom Pinder and Andrew Doersam
On Halloween, ghosts and goblins parade the streets and doorsteps of our neighborhoods, and the boundaries between the corporeal and spiritual worlds are temporarily blurred. But rarely do we see efforts to actually engage the dead in litigation. Yet recently, the Ninth Circuit resurrected a century-old question: Can you sue a dead person?Turns out, the answer is no. In LN Management v. JP Morgan Chase Bank, the Ninth Circuit ruled that a dead person cannot be a litigant. As the court pointed out, “There are a number of ways to accomplish litigation regarding interests once held by a dead person.” You can sue the person’s estate— a legal entity created for the purpose and represented by a living person. You can also a sue dead person’s successors.
In this case, the dead litigant problem arose because LN Management did not know the defendant was dead. Under Nevada law, a homeowners’ association can foreclose on a property if an owner does not pay dues. Understandably, Kit Dansker, a Las Vegas homeowner, stopped paying her HOA dues after she died. The HOA foreclosed and resold the property to LN Management. The mortgage holders—FHFA and Fannie Mae—challenged the foreclosure, arguing the HOA cannot foreclose on the property without the FHFA’s consent under the federal foreclosure bar.
In 2013, LN Management filed a quiet-title action in state court against Dansker and JPMorgan Chase, which took over as the beneficiary of the property from Fannie Mae. JPMC removed the case to federal court, because the only in-state defendant was dead and therefore “fraudulently joined.” A district court judge granted JPMC’s motion to toss the lawsuit. On appeal, LN Management argued that no federal jurisdiction existed in the first place and, as a result, the state court should have handled the case. And resolving this argument depended on the answer to the question: Can you sue the deceased?
“In all events, the consensus of our sister courts is unanimous: you cannot sue a dead person,” the Ninth Circuit declared. The Fourth Circuit ruled in House v. Mitra that a dead plaintiff lacks Article III standing. The Ninth Circuit agreed with the Fourth Circuit, writing that “the dead lack the capacities that litigants must have to allow for a true Article III case or controversy . . . [w]e find this obvious, but sometimes stating the obvious is necessary.”
The Ninth Circuit also added there are “sound logical reasons” to forbid lawsuits against the dead. Surprisingly, the Ninth Circuit was not spooked about any injustice against the deceased. For instance, the Ninth Circuit described what happened to Pope Formosus in A.D. 897, when Pope Stephen VII exhumed his body and put him on trial in the so-called Cadaver Synod. Instead, the Ninth Circuit was concerned about injustice against the living. If a plaintiff could sue a dead person directly, any living person who may have an interest in the outcome would be less likely to get notice. As described by the Ninth Circuit, “we are confident that allowing proceedings against the dead would threaten to deprive the living of due process.”
Finally, the Ninth Circuit noted there is no estate, and nobody filed a probate action. LN Management insisted it found one person who claimed to be Dansker’s daughter. As the Ninth Circuit stressed, even if she really was the daughter, she did not file a probate action, and LN Management never asked the court to appoint her to represent the “estate.” In the Ninth Circuit’s view, an estate, “like [a]memory,” is “an abstract concept that cannot be sued except through a legal representative.”
Halloween has evolved into a day where children extort sweets from homeowners under the threat of a trick. Here, the Ninth Circuit did not fall for LN Management’s “trick” to resuscitate a dead homeowner. Turns out, the dead do not make good litigants.
Dawn Causey is general counsel at ABA, where Thomas Pinder is deputy general counsel and Andrew Doersam is paralegal. Causey is retiring from ABA next month.
