Priscilla M. Dame

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
PRISCILLA M. DAME,
Debtor.
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Case No. 07-00634
(Chapter 7)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION RE MOTION
TO DISMISS MARY DURRUM’S EMERGENCY
MOTION FOR SANCTIONS AND OTHER RELIEF AGAINST THE DEBTOR
Creditor Mary Durrum filed an Emergency Motion to Enjoin the
Debtor from Violating the Automatic Stay, For Sanctions and
Alternatively, to Modify Order Modifying the Automatic Stay
(Docket Entry (“DE”) No. 53, filed March 24, 2008)(“Emergency
Motion”). 	The debtor has moved to dismiss Durrum’s Emergency
Motion on the basis that Durrum died before the Emergency Motion
was filed. 	I will grant the debtor’s motion for the following
reasons.
Durrum’s attorney had earlier filed a motion to substitute
the Estate of Mary Denman Durrum, deceased, in place of Durrum as
the movant pursuing the Emergency Motion, but the debtor properly
The Memorandum Decison below is hereby signed.
Dated: October 2, 2008.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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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. 	No one has filed a new motion (to
substitute the personal representative as the person pursuing the
Emergency Motion) despite the debtor’s opposition having raised
the impropriety of seeking to have a decedent’s estate
substituted as a party.
Nor has anyone opposed the motion to dismiss. 	At this
juncture, the Emergency Motion is being pursued in the name of a
party who was dead when the Emergency Motion was filed, and so it
was not commenced by someone having capacity to pursue the
claims. 	Plainly the Emergency Motion may not proceed with Mary
Durrum as the named party pursuing the Emergency Motion.
The Emergency Motion 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 in place of Durrum, the
unopposed motion to dismiss must be granted. 	See Adelsberger v.
United States, 58 Fed. Cl. 616 (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.R.D. 279 (D. Del. 1949). 	I need not reach the issue of whether
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a motion to substitute the personal representative of Durrum’s
estate as the person pursuing the Emergency Motion 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 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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