Durrum v. Dame

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
PRISCILLA M. DAME,
Debtor.
____________________________
MARY DURRUM,
Plaintiff,
v.
PRISCILLA M. DAME,
Defendant.
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Case No. 07-00634
(Chapter 7)
Adversary Proceeding No.
08-10008
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION RE MOTION TO DISMISS
The defendant has moved to dismiss this adversary proceeding
on the basis that the plaintiff died before the complaint was
filed. 	I will grant the motion for the following reasons.
The plaintiff had earlier moved to substitute the Estate of
Mary Denman Durrum, deceased, as the plaintiff but the defendant
properly opposed that motion (and it is being denied) because
only the personal representative of a decedent’s estate may sue
on behalf of the decedent’s estate. 	The plaintiff has failed to
The Memorandum Decision below is hereby signed.
Dated: October 2, 2008.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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file a new motion (to substitute the personal representative as
the plaintiff) despite the defendant’s opposition having raised
the impropriety of seeking to have a decedent’s estate
substituted as a plaintiff.
Nor has the plaintiff opposed the motion to dismiss. 	At
this juncture, the adversary proceeding is being pursued in the
name of a plaintiff who was dead when the adversary proceeding
commenced, and so it was not commenced by someone having capacity
to pursue the claims. 	Plainly the adversary proceeding may not
proceed with Mary Durrum as the named plaintiff.
The adversary proceeding having been commenced in the name
of someone incapable of pursuing the same, and no one having
filed a motion to substitute a proper party as plaintiff, the
unopposed motion to dismiss must be granted. 	See Adelsberger v.
United States, 58 Fed. Cl. 616 (Ct. Cl. 2003) (motion to dismiss
an action commenced when the named plaintiff was already dead
could not be defeated by a motion to substitute as plaintiff the
a decedent’s wife who was not shown to be the personal
representative of the decedent’s estate (the only entity with
capacity to pursue the claim)); Pasos v. Eastern S.S. Co., 9
F.$.D. 279 (D. Del. 1949). 	I need not reach the issue of whether
a motion to substitute the personal representative of Durrum’s
estate as the plaintiff would succeed. 	Compare Esposito v.
United States, 368 F.3d 1271 (10th Cir. 2004); Canterbury v.
Federal Mogul Ignition Co., 483 F. Supp.2d 820, 825-26 (S.D. Iowa
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3	O:\TEEL\Judge Temp Docs\Durrum v Dame Mem Decsn re MTD (Plaintiff Died Before Filing).wpd
2007); and Brown v. Anselme (In re Polo Builders, Inc.), 374 B.R.
638 (Bankr. N.D. Ill. 2007), with Mizukami v. Buras, 419 F.2d
1319 (5th Cir. 1969); Moul v. Pace, 261 F.Supp. 616 (D. Md.
1966); Banakus v. United Aircraft Corp., 290 F. Supp. 259
(S.D.N.Y. 1968); Chorney v. Callahan, 135 F. Supp. 35 (D. Mass.
1955).
[Signed and dated above.]
Copies to: Andre P. Barber, Esq.; Ronald L. Schwartz, Esq.;
Debtor.
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