Levy v. B. Good LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Sherry A. Levy, as Administrator
of the Estate of Shea K. Black
v. 	Case No. 20-cv-1142-PB
B. Good LLC
REPORT AND RECOMMENDATION
Sherry A. Levy, proceeding without a lawyer and in forma
pauperis, has initiated a civil action in her capacity as
administrator of the Estate of Shea K. Black (“Estate”),
asserting wrongful death claims against B. Good LLC (“B. Good”).
Her amended complaint (Doc. No. 3) invoking this court’s
diversity jurisdiction is before the court for preliminary
review. 	See 28 U.S.C. § 1915(e); LR 4.3(d)(2).
I. 	Preliminary review standard
The court conducts a review of cases filed by pro se
plaintiffs to determine, among other things, whether the
complaint states any claim upon which relief may be granted.
See 28 U.S.C. § 1915(e)(2); LR 4.3(d)(2). 	To survive
preliminary review, the complaint must contain “sufficient
factual matter, accepted as true, to ‘state a claim to relief.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
The court treats as true all well-pled factual allegations and
construes all reasonable inferences in the plaintiff’s favor.
See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12-13 (1st
Cir. 2011). 	The court may also consider “documents incorporated
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by reference in [the complaint], matters of public record, and
other matters susceptible to judicial notice.” 	Giragosian v.
Ryan, 547 F.3d 59, 65 (1st Cir. 2008) (citations omitted)
(alteration in original). 	The court may dismiss a pro se
plaintiff’s case at any time if the complaint fails to state a
claim on which relief may be granted, the defendant is immune
from the relief sought, or the action is frivolous or malicious.
See 28 U.S.C. § 1915(e)(2).
II. 	Background
This is a civil action in which Levy, as administrator for
the Estate, seeks monetary relief for Black’s wrongful death
under a vicarious liability theory. 	On November 24, 2017, Black
allegedly purchased two grams of the drug commonly known as
fentanyl from Jennifer Mitchell, an employee at the B. Good
restaurant in Concord, New Hampshire.1 	Black overdosed on the
fentanyl and died the next day.
Levy first learned of B. Good’s alleged involvement in
Black’s death at an April 20, 2018 preliminary hearing on
Mitchell’s state-court criminal charges related to Black’s
death. 	Levy contends that, at the time of the sale, Mitchell
was working under the direction of, and for the benefit of,
1 It is not clear on the record before the court whether the
B. Good in Concord is owned by, or is the same entity as, the
defendant named in this action. 	Because the court ultimately
concludes that Levy cannot assert claims on behalf of the
Estate, the court need not resolve whether the B. Good
restaurant in Concord and B. Good LLC are one entity.
Accordingly, the court refers to “B. Good” and “B. Good LLC”
interchangeably herein.
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B. Good. 	She alleges that B. Good failed to perform a
reasonable investigation into Mitchell before hiring her by
conducting a sufficient background check and pre-employment drug
test. 	Additionally, Levy asserts that after hiring Mitchell,
B. Good failed to act on concerns voiced by other employees
regarding behavior by Mitchell that was consistent with drug-
related activity. 	Levy argues that B. Good’s “negligent hiring
and negligent retention” of Mitchell caused Black’s wrongful
death. 	Levy does not assert any other claims against B. Good on
behalf of herself or the Estate.
III. Analysis
The district judge should dismiss the amended complaint
without prejudice, as Levy cannot appear in federal court on
behalf of the Estate without an attorney. 	See Guest v. Hansen,
603 F.3d 15, 20 (2d Cir. 2010) (considering issue sue sponte).
Under federal law and this court’s local rules, parties to
a federal lawsuit cannot be represented by anyone other than
themselves or a member of the Bar. 	See 28 U.S.C. § 1654; LR
83.2(d) (“Persons who are not members of the bar . . . will be
allowed to appear before this court only on their own behalf.”);
see also Pappas v. Philip Morris, Inc., 915 F.3d 889, 894 (2d
Cir. 2019). 	An estate administrator filing a lawsuit acts on
behalf of all beneficiaries of the estate whose interests may be
affected by the litigation. 	Accordingly, a non-attorney
administrator may not proceed pro se in federal court when the
estate has other beneficiaries or creditors. 	See Rodgers v.
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Lancaster Police & Fire Dep’t, 819 F.3d 205, 210 & n.14 (5th
Cir. 2016) (citing cases).
Here, the allegations in the amended complaint do not
suggest that Levy is the Estate’s sole beneficiary, and nothing
in the record indicates that she herself is an attorney admitted
to the Bar in this or any other jurisdiction. 	As a result, the
court, in December 2020, directed Levy “to find counsel who will
enter an appearance on behalf of the Estate” on or before
January 29, 2021, or, alternatively, “to show cause” by that
deadline “why this matter should not be dismissed in the absence
of the appearance of counsel on the Estate’s behalf.” 	December
10, 2020 Order (Doc. No. 15, at 2). 	In doing so, it warned Levy
that “[f]ailure to comply . . . may result in dismissal of the
claims asserted on the Estate’s behalf, without prejudice.” 	Id.
To date, Levy has failed to comply with either of the
directives in the court’s December 10, 2020 Order, or otherwise
bring the amended complaint into compliance with federal and
local rules. 	Liberally construed, the amended complaint asserts
no claims other than those asserted on behalf of the Estate.
Accordingly, the district judge should dismiss the amended
complaint (Doc. No. 3) in its entirety, without prejudice to any
potential claims belonging to Levy or the Estate.
IV. 	Conclusion
For the reasons set forth above, the district judge should
dismiss the amended complaint (Doc. No. 3) in its entirety,
without prejudice to any potential claims belonging to Levy or
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the Estate. 	Any objections to this Report and Recommendation
must be filed within fourteen days of receipt of this notice.
See Fed. R. Civ. P. 72(b)(2). 	The fourteen-day period may be
extended upon motion. 	Failure to file objections within the
specified time waives the right to appeal the district court's
order. 	See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
February 25, 2021
cc: 	Sherry A. Levy, pro se
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