Kelley et al v. Russell et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Karyn M. Kelley et al.
v. 	Civil No. 20-cv-162-PB
Charles A. Russell et al.
REPORT AND RECOMMENDATION
This case was initiated by a complaint signed by Ms. Kelley
in her individual capacity and as trustee of the Karyn M. Kelley
Revocable Trust (the “Trust”). 	(Doc. No. 1). 	From the
pleadings, it appeared that Ms. Kelley intends to represent
herself and the Trust pro se.
Local Rule 83.6(c) provides that a “trust may not appear in
any action or proceeding pro se, except that a trustee who is
the sole beneficiary of a trust may represent the trust pro se.”
By orders dated February 5, 2020, and April 1, 2020, the court
gave Ms. Kelley two opportunities to establish that she is the
sole beneficiary of the trust or to obtain counsel to represent
the trust. (Doc. Nos. 4 & 6). Because Ms. Kelley took no action
in response to the April 1 st order, the undersigned recommended
that the district judge dismiss the Trust’s claims without
prejudice for failure to prosecute and that the Trust’s
Application to Proceed in District Court without Prepaying Fees
or Costs (Doc. No. 3) be denied as moot. (Doc. No. 7).
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Ms. Kelley subsequently submitted both an objection to that
report and recommendation and, for the first time, the original
Trust Agreement. (Docs. No. 12 & 13).
Upon review of the original trust agreement, it is clear
that there were designated beneficiaries beyond Ms. Kelley. 	In
response to an earlier order stating that only a sole
beneficiary can represent a trust pro se under Local Rule
83.6(c), Ms. Kelley, the sole trustee, amended the trust to
designate herself as the sole beneficiary. 	As noted in the
court’s order on April 1, 2020:
[It] is [a] well-established principle of trust law that
the same person cannot be the sole trustee and the sole
beneficiary 	of 	a 	trust. 	Restatement 	(Third) 	of 	Trusts
§ 	69 	(Am. 	Law 	Inst. 	2003) 	(“If 	the 	legal 	title 	to 	the
trust property and the entire beneficial interest become
united in one person, the trust terminates.”); see also
Restatement 	(Second) 	of 	Trusts 	§ 	341 	(Am. 	Law 	Inst.
1959). 	New 	Hampshire 	law 	is 	in 	accord 	with 	this
established 	legal 	principle. 	RSA 	564-B:4-402(b) 	(“the
same 	person 	is 	not 	the 	sole 	trustee, 	the 	sole 	current
beneficiary and the sole remainder beneficiary”). 	Thus,
Ms. Kelley, who appears to be the sole trustee, has not
established 	that 	she 	may 	represent 	the 	revocable 	trust
pro se as its sole beneficiary.
Doc. No. 6 at 2-3.
In short, by amending the original trust instrument, Ms.
Kelley attempted to cure the local rule prohibition on pro se
representation by creating a trust entity not recognized at law.
This she cannot do. 	Therefore, after reviewing the original
trust agreement, the undersigned reaffirms, and incorporates by
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reference, its prior order recommending that the district judge
dismiss the Trust’s claims without prejudice for failure to
prosecute due to non-compliance with the local rule prohibiting
pro se representation of a trust, and deny the Trust’s in forma
pauperis application.1
Any objections to this Report and Recommendation, as well
as the Report and Recommendation dated May 4, 2020 (Doc. No. 7),
must be filed within fourteen (14) days of being served with
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).
SO ORDERED.
/s/ Daniel J. Lynch
Daniel J. Lynch
United States Magistrate Judge
Date: September 8, 2020
cc: 	Karyn M. Kelley
1 The undersigned does not recommend that the Trust’s claims be
dismissed with prejudice, as Ms. Kelley’s conduct does not
warrant that result. 	See Pomales v. Celulares Telefónica, Inc.,
342 F.3d 44, 48 (1st Cir. 2003)(noting the factors a court
should consider when determining whether dismissal with
prejudice for failure to prosecute is appropriate).
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