LAIBOW v. MENASHE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

RIMA E. LAIBOW, spouse of ALBERT

N. STUBBLEBINE, III, deceased,

Plaintiff,

Vv.

Civ. No. 19-4549 (KM) (SCM)

RICHARD MENASHE, WILLIAM

OSER, LISA CASALE, THE OPINION

COMMUNITY HOSPITAL GROUP

d/b/a JFK MEDICAL CENTER,

KINDRED HOSPITAL, ABC

COMPANIES (1-10), DEFENDANT

PARTNERSHIPS (1-10), JOHN DOE

PHYSICIANS (1-10), JANE DOE

NURSES (1-10), JANE MOE

TECHNICIANS, and PARAMEDICAL

EMPLOYEES (1-20),

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Pro se Plaintiff Rima Laibow brings this case on behalf of the estate of her

husband, Major General Albert N. Stubblebine, III. Ms. Laibow alleges

negligence and statutory violations by several institutions and medical

professionals who treated General Stubblebine in the weeks leading up to this

death in 2017. Before the Court is Defendant Richard Menashe’s motion to

dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (DE 18).

This motion was filed after the Court had already decided similar prior

motions. As a result, much of the following Opinion duplicates a prior Opinion

of the Court. (DE 39) For the following reasons, Dr. Menashe’s motion is

GRANTED.

I. BACKGROUND!

A. The Parties

Ms. Laibow and Gen. Stubblebine were married for twenty-three years

before he died on February 6, 2017. (DE 1 {4 1 & 3). Ms. Laibow is the

executor and administrator of his estate and a citizen of Arizona. (DE 1 [7 1 &

2). At the time of his death, Gen. Stubblebine was without known children, and

he had a life expectancy (actuarially speaking, presumably) of 4.6 years. (DE 1

{ 3). He was a citizen of Arizona. {DE 1 { 3}. The amount in controversy in this

dispute exceeds $75,000.00, exclusive of interest and costs. (DE 1 { 4).

Defendant Richard Menashe is an osteopathic doctor with thirty-four

years of experience. (DE 1 4 5). He specializes in family medicine. (DE 1 { 5).

Dr. Menashe is affiliated with Defendant JFK Medical Center. (DE 1 4 5).

Defendant William Oser is a medical doctor with thirty-four years of

experience. (DE 1 7). He practices internal medicine. (DE 1 { 7). Dr. Oser is

affiliated with Defendant JFK Medical Center. □ (DE 1 { 7).

Defendant Lisa Casale is a medical doctor who specializes in

pulmonology. (DE 1 { 9).

Defendant Community Hospital Group, Inc. (“Community”) is a New

Jersey non-profit corporation that owns, operates, and does business as JFK

Medical Center (“JFK”). (DE 1 711; DE 1 4 12)°

For purposes of this motion, the facts alleged in the complaint, not yet tested by

any fact finder, are assumed to be true. See Section H.A.1., infra. Docket entries will

be cited as “DE __.”

2 Ms. Laibow alleges that “Dr. Menashe is affiliated with JFK Medical Center” in

paragraph 5 and repeats that allegation verbatim in paragraph 7. (DE 1 {{ 5 & 7). The

subject of paragraph 7, however, is Dr. Oser, and so this may be an editing error. Also

unclear is whether plaintiff intended to allege that both doctors have thirty-four years

of experience.

3 Ms. Laibow states that she named “JFK Medical Center” separately in her

complaint to ensure that the appropriate entity would be joined and receive notice of

this action. (DE 1 § 12).

Defendant Kindred Hospital is a thirty-four-bed “transitional hospital” in

Rahway, New Jersey. (DE 1 13). Kindred advertises that as a “transitional

care hospital” it offers “the same in depth care [a patient] would receive in a

traditional hospital but for an extended recovery period.” (DE 1 { 13). It

partners with physicians to offer twenty-four-hour clinical care, seven days a

week. (DE 1 7 13).

B. Gen. Stubblebine’s Final Weeks

From September 1, 2016, to January 4, 2017, Gen. Stubblebine was a

patient at JFK. (DE 1 § 16). On January 4, 2017, he was transferred from JFK

to Kindred at the behest of JFK personnel. (DE 1 4 17}. At the time, Ms. Laibow

was Gen. Stubblebine’s attorney-in-fact and health-care representative, but

she was not given sufficient notice and did not consent to the transfer. (DE 1

q 17).

Between January 4, 2017 and February 5, 2017, Gen. Stubblebine was a

patient at Kindred. (DE 1 18). On February 5, 2017, he was moved to Robert

Wood Johnson University Hospital, where he died the next day, February 6,

2017. (DE 1 4 18).

During this time, Defendants provided negligent services and deviated

from the standard of care with respect to Gen. Stubblebine, which led to his

death. (DE 1 4 19-22).

Cc. The Causes of Action in the Complaint

Ms. Laibow’s complaint alleges eight counts of tort- and statute-based

wrongdoing. Each count is at least formally aimed at Kindred and JFK, but

Laibow identifies Menashe—and the other individual defendants—in each

count. She alleges the following:

1. Counts 1 and 2: Negligence and Wrongful Death (Against

Kindred and JFK)

Defendants had a nondelegable duty to exercise reasonable care towards

Gen. Stubblebine. (DE 1 J 26 & 35). Defendants failed to allocate sufficient

resources to adequately care for Gen. Stubblebine and otherwise failed to

exercise reasonable care, including by abandoning Gen. Stubblebine at JFK

while he needed a ventilator to breathe. (DE 1 J 27 & 36). Defendants violated

the New Jersey Patient Bill of Rights, N.J.S.A 30:4-24.2, by

e failing to properly evaluate, assess, and document Gen.

Stubblebine’s nutritional status and needs;

e failing to develop, document, and communicate a coherent,

consistent, and medically appropriate treatment plan for Gen.

Stubblebine;

e failing to regularly adopt, update, and implement a medically

appropriate treatment plan for Gen. Stubblebine;

e failing to adopt, incorporate, and implement a medically

appropriate nutritional plan in Gen. Stubblebine’s treatment plan;

failing to update and make necessary changes to the nutritional

plan in the treatment plan as Gen. Stubblebine’s medical condition

evolved;

e allowing non-medical staff to interfere with and block the provision

of critically needed parenteral feeding to Gen. Stubblebine after the

same was ordered by the attending physician, namely when the

Director of Nutrition noted that “nutrition has no place in this

patient’s care”;

e failing to adequately supervise Gen. Stubblebine’s care and

treatment by failing to take necessary action to reverse medically

disastrous decisions outside the scope of practice of non-medical

staff, which contradicted the order to provide parenteral nutrition

to Gen. Stubblebine;

e repeatedly delaying—for non-medical reasons—for over three

weeks the installation of a PEG tube ordered for Gen. Stubblebine

as medically necessary for his nutrition;

e failing to develop, document, communicate, and implement a

coherent, consistent, and medically appropriate treatment plan for

Gen. Stubblebine to ensure his adequate hydration;

e failing to take necessary action to ensure that Gen. Stubblebine

was sufficiently hydrated, which resulted in numerous instances of

dehydration-induced tachycardia, which in turn caused long-term

damage to his heart and kidneys;

* prescribing beta blockers, a medically inappropriate medication, to

address Gen. Stubblebine’s dehydration-induced tachycardia and

other cardiac arrythmias, which significantly worsened Gen.

Stubblebine’s physical condition and caused his death;

e violating the Patient Bill of Rights when a physician attempted to

circumvent Ms. Laibow’s refusal to allow the administration of beta

blockers by surreptitiously attempting to force their administration

medications while Ms. Laibow was not present;

e failing to develop, document, and communicate a coherent,

consistent, and medically appropriate treatment plan to ensure

that muscle deconditioning, muscle wasting, pressure sores or

decubitus ulcers would not develop in a comatose and otherwise

immobilized and incapacitated Gen. Stubblebine;

e failing to implement or execute a coherent, consistent, and

medically appropriate treatment plan to ensure that muscle

deconditioning, muscle wasting, pressure sores or decubitus ulcers

would not develop in a comatose and otherwise immobilized and

incapacitated Gen. Stubblebine;

e wrongfully hiding and actively concealing Gen. Stubblebine’s

rapidly deteriorating skin and muscle condition, which quickly

developed massive decubitus ulcers and pressure sores;

e failing to implement a regular schedule for turning Gen.

Stubblebine’s body to prevent or slow the development of massive

decubitus ulcers and pressure sores on Gen. Stubblebine’s body;

* using an ill-fitting, inappropriately designed intubation harness,

which caused Gen. Stubblebine to suffer a facial decubitus ulcer,

causing his upper lip to become severely damaged;

e providing inadequate nursing care by restricting movement and

lacking proper decompression boots and pressure stocking, which

caused Gen. Stubblebine to develop deep vein thrombosis,

e inappropriately administering medications and drugs that were not

indented for Gen. Stubblebine, including insulin, while his records

and charts demonstrated Decedent’s low blood sugar; and

e failing to identify, incorporate and implement into Gen.

Stubblebine’s treatment plan cardiac resuscitation procedures, the

failure of which exacerbated and compounded the negative impact

of his February 5, 2017 cardiac arrest and further caused or

contributed to his death on February 6, 2017.

(DE 1 Jq 28 & 37).

Gen. Stubblebine was admitted to JFK with aspirational pneumonia and

sepsis, which improved, but the sepsis returned more virulently as a result of a

nosocomial infection caused by poor sanitary conditions. (DE 1 ff 28 &37).

These infections included MRSA, C. diff., and pseudomonas. (DE 1 Jf 28 &

37). They required the administration of stronger medications, which in turn

were more toxic and caused more kidney and other organ damage. (DE 1 {fj 28

& 37). Defendants’ documentation of Gen. Stubblebine’s care and treatment

was lax, inaccurate, and inadequate. (DE 1 {28 & 37).

2. Counts 3 and 4: Negligence Per Se Under the New Jersey

Patient Bill of Rights (Against Kindred and JFK)

Defendants failed to ensure, preserve and otherwise provide for Gen.

Stubblebine’s rights under N.J. Stat. Ann. § 30:4-24.2 and New Jersey

common law. (DE 1 J 48-49 & 56-57). Gen. Stubblebine suffered severe

injuries and damages, including dehydration, malnutrition, weight loss,

improper treatments, pressure ulcers, infections, extreme pain and discomfort,

increased expenses associated with further surgical pain and expensive

surgical procedures, mental and emotional anguish, a significantly decreased

quality of life, deprivation of dignity, general and specific neglect and lack of

care, and substantial costs and expenses for medical care and treatment and

ultimately suffered a prolonged, agonizing, untimely, and likely preventable

death. (DE 1 ¢ 48-49 & 56-57).

3. Counts 5 and 6: Negligent Supervision (Against JFK and

Kindred)

Defendants knew or should have known that their patients, including

Gen. Stubblebine, were elderly and greatly limited in their ability to move and

to communicate their needs clearly and effectively and needed particular care

and supervision. (DE 1 59-61 & 63-65). Defendants failed to exercise

adequate care in the supervision of the treatment of their elderly patients,

including Gen. Stubblebine, particularly with respect to his inability to

communicate his health needs clearly and effectively. (DE 1 9 59-61 & 63-65).

Gen. Stubblebine sustained severe personal injuries, endured great pain and

suffering, incurred medical expenses for the care and treatment of those

injuries, and ultimately suffered a prolonged, agonizing, untimely, and likely

preventable death. (DE 1 J 59-61 & 63-65).

4, Counts 7 and 8: Punitive Damages (Against JFK and Kindred)

Defendants caused Gen. Stubblebine to sustain and suffer severe

personal injuries and damages of both a permanent and temporary nature. (DE

1 68 & 71). Gen. Stubblebine was forced to endure great pain and suffering,

incur medical expenses for the care and treatment of said injuries, and

ultimately suffered a prolonged, agonizing, untimely and likely preventable

death. (DE 1 { 68 & 71).

D. Procedural History

On February 1, 2019, Ms. Laibow sued Drs. Richard Menashe, William

Oser & Lisa Casale, the Community Hospital Group d/b/a JFK Medical Center,

Kindred Hospital, ABC Companies (1-10), Defendant Partnerships (1-10), John

Doe Physicians (1-10), Jane Doe Nurses (1-10), Jane Moe Technicians, and

Paramedical Employees (1-20). (DE 1}. Drs. Menashe, Oser, and Casale each

answered and crossclaimed against the other defendants. (DE 4, 5 & 8).

All defendants moved to dismiss. Dr. Menashe’s motion to dismiss, the

subject of this opinion, was filed on June 7, 2019. (DE 18). Ms. Laibow opposed

the motions of JFK and Drs. Casale and Oser in a filing also dated June 7. (DE

20). The letter filed alongside her brief reads as follows:

Enclosed please find for filing, an Original copy of the following

document:

(1) Plaintiffs Brief in Opposition to Motion/ Cross-motion to

Dismiss Plaintiffs Complaint filed by Defendants Casales [sic],

Oser and JFK Hospital allegedly for Plaintiffs Lack of Authorization

to Represent the Estate of the Decedent in this Action.

Thank you for your assistance in this matter.

(DE 20-1). l interpret this to mean that Ms. Laibow intends to rely on her

earlier brief as her opposition to Dr. Menashe’s motion.

On November 21, 2019, I dismissed Ms. Laibow’s complaint as against

Dr. Casale and Kindred. (DE 40). On November 26, I dismissed the complaint

as against Community, JFK, and Dr. Oser. (DE 42).

II. DISCUSSION

Because this matter involves a controversy between citizens of different

states and the amount in controversy is alleged to exceed the sum of $75,000,

this Court has jurisdiction pursuant to 28 U.S.C. § 1332. Federal procedural

law and New Jersey substantive law will apply. See Erie R.R. v. Tompkins, 304

U.S. 64, 78 (1938).

A. Standard of Review

Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in

part, if it fails to state a claim upon which relief can be granted. See Fed. R.

Civ. P. 12(b)(6). The defendant, as the moving party, bears the burden of

showing that no claim has been stated. Animal Sci. Prods., Inc. v. China

Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011). For the purposes of a

motion to dismiss, the facts alleged in the complaint are accepted as true and

all reasonable inferences are drawn in favor of the plaintiff. N.J. Carpenters &

the Trs. Thereof v. Tishman Const. Corp. of N.J., 760 F.3d 297, 302 (3d Cir,

2014).

Federal Rule of Civil Procedure 8(a) does not require that a complaint

contain detailed factual allegations. Nevertheless, “a plaintiff's obligation to

provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the

complaint’s factual allegations must be sufficient to raise a plaintiff's right to

relief above a speculative level, so that a claim is “plausible on its face.” Id. at

570; see also W. Run Student Hous. Assocs., LLC v. Huntington Nat. Bank, 712

F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met “when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While “[t]he

plausibility standard is not akin to a ‘probability requirement’ . . . it asks for

more than a sheer possibility.” Igbal, 556 U.S. at 678.

Where, as here, the plaintiff is proceeding pro se, the complaint is “to be

liberally construed,” and, “however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.” Enckson v.

Pardus, 551 U.S. 89, 93-94 (2007). Nevertheless, “pro se litigants still must

allege sufficient facts in their complaints to support a claim.” Mala v. Crown

Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). “While a litigant’s pro se

status requires a court to construe the allegations in the complaint liberally, a

litigant is not absolved from complying with Twombly and the federal pleading

requirements merely because s/he proceeds pro se.” Thakar v. Tan, 372 F.

App’x 325, 328 (3d Cir. 2010) (citation omitted).

The Third Circuit has liberally permitted pleading amendments to ensure

that “a particular claim will be decided on the merits rather than on

technicalities.” Dole v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir. 1990).

Indeed, where a complaint is dismissed on Rule 12(b)(6) grounds, “a District

Court must permit a curative amendment, unless an amendment would be

inequitable or futile.” Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)

(emphasis added); accord Phillips v. Cty. of Allegheny, 515 F.3d 224, 236 (3d

Cir. 2008) (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.

2002) {citing Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000)).

B. Dr. Menashe’s Motion to Dismiss

Dr. Menashe asks this Court to dismiss Ms. Laibow’s complaint for

failure to state a claim under Rule 12(b)(6).4 (DE 18-9). Specifically, he asserts

that Ms. Laibow, a pro se plaintiff, cannot sue on behalf of her late husband’s

estate. (DE 18-9). Ms. Laibow opposes this motion, claiming that it is frivolous.

A substantial portion of her opposition is devoted to her demand that the Court

impose sanctions.5 (DE 20).

Title 28, United States Code, Section 1654 guarantees that “[i]n all courts

of the United States the parties may plead and conduct their own cases

personally or by counsel as, by the rules of such courts, respectively, are

permitted to manage and conduct causes therein.” Although a non-lawyer is

entitled to represent herself pro se, she may not appear pro se on behalf of

another person or entity. Schneller v. Crozer Chester Med. Ctr., 276 F. App’x

4 Dr. Menashe’s theory relies on federal court procedures as embodied in rules

and interpretive case law. Out of caution, I consider whether the matter would be

considered under Rule 12(b)(1), rather than 12(b)(6), if the issue were treated as one of

standing. See St. Thomas-St. John Hotel & Tourism Ass’n v. Virgin Islands, 218 F.3d

232, 240 (3d Cir. 2000) (“The issue of standing is jurisdictional.”). 1 conclude that no

further analysis is required because it would make no difference. Where, as here, the

jurisdictional challenge is directed to the face of the complaint, the court's standard of

review is indistinguishable from the familiar Rule 12(b)(6) standard.)). “A facial 12(b)(1)

challenge, which attacks the complaint on its face without contesting its alleged facts,

is like a 12(b)(6) motion in requiring the court to ‘consider the allegations of the

complaint as true.” Hartig Drug Co. Inc. v. Senju Pharm. Co., 836 F.3d 261, 268 (3d

Cir. 2016) (citation omitted).

5 Ms. Laibow’s demand for sanctions is, again, formally directed at JFK and Drs.

Casale and Oser. For purposes of this opinion, I assume that the sanctions motion is

also directed at Dr. Menashe.

10

169, 170 n.1 (3d Cir. 2008). That rule has particular application to an

appearance on behalf of an entity that is not a natural person. See also

Marrakush Soc’y v. N.J. State Police, No. 09-2518, 2009 U.S. Dist. LEXIS 68057

at *92 (D.N.J. July 30, 2009) (“Any juridical entity (meaning, any

fictitious/ artificial /legal person) cannot appear in legal proceedings pro se.”).

In Estate of Twardy v. Lakes of Larchmont Condo Ass’n, No. 15-6501,

2016 U.S. Dist. LEXIS 65322 at *1, 2016 WL 2901664 (D.N.J. May 18, 2016)

(Hillman, J.), the estate’s executor filed a pro se complaint on behalf of the

estate. Id. The case came before the court on plaintiffs in forma pauperis

motion, but the court expanded its inquiry to consider whether the executor

was entitled to prosecute the action in the first place. /d. at *2 (*[I]t is highly

questionable whether an executor of an estate who is not an attorney may file

suit on behalf of an estate.”).

Estate of Twardy collects some of the most pertinent case law. It cites,

but does not explicitly adopt, the most liberal standard of pro se

representation, which is that an executor may represent the estate pro se, but

only if she is the sole beneficiary and the estate has no creditors:

The executor of the Estate, Francis Twardy, is not an attorney and

is prosecuting the claims of the Estate. The United States Supreme

Court in Rowland v. Cal, Men’s Colony, 506 U.S. 194, 201-02

(1993) reinforced the rule that corporations and other artificial

entities may appear in federal court only through counsel. Thus, it

is highly questionable whether an executor of an estate who is not

an attorney may file suit on behalf of an estate. See, e.g., In re

Olick, 571 F. App’x 103, 106 (3d Cir. 2014) (citing Rowland, 506

U.S. at 201-02) (other citation omitted) (finding that a pro se

trustee may not represent the trust in federal court because he ts

not an attorney and without counsel the trust may not appear in

federal court}; c.f Gray, 352 F. App’x at 656 n.1 (citing Pridgen v.

Andresen, 113 F.3d 391, 393 (2d Cir. 1997)) (noting that the

appeal also raised a question as to whether Gray, as a non-lawyer,

may represent the estate, but not reaching the question because

the decision was based on the holding that the estate may not

proceed in forma pauperis); Caputo v. Forceno, No. 15-1911, 2015

U.S. Dist. LEXIS 58536 at *2 (E.D. Pa. May 5, 2015} (“Federal

11

courts generally will only permit a non-attorney to proceed pro se

in her capacity as the administratrix of an estate when she is the

sole beneficiary and the estate has no creditors.”) (citing Johnson v.

Marberry, 549 F. App’x 73, 75 (3d Cir. 2013) (per curiam) (pro se

litigant could not prosecute claims on behalf of estate/heirs);

Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007) (per curiam)

(“If the administrator is not the sole beneficiary of the estate, then

he or she may not represent the estate in court.”); Jones ex rel.

Jones v. Corr. Med. Serus., Inc., 401 F.3d 950, 952 (8th Cir. 2005)

(“[W]hen an estate has beneficiaries or creditors other than the

administratrix or executrix, the action cannot be described as the

litigant’s own, because the personal interests of the estate, other

survivors, and possible creditors will be affected by the outcome of

the proceedings.”))

Id. at *2-3.

Even under the most liberal view, then, a pro se plaintiff purporting to

represent a decedent's estate must demonstrate that the estate has no other

beneficiaries or creditors. The purpose of this rule is to ensure that the rights

of the estate’s beneficiaries or creditors are adequately protected. See Murray v.

City of Phila., 901 F.3d 169, 171 (3d Cir. 2018) (“Attorneys’ training,

experience, and their ‘ethical responsibilities and obligations’ help ensure that

a represented party’s interests are not squandered ... . Only attorneys may be

sued for legal malpractice; a represented party could not seek recourse against

a non-attorney for even the most egregious conduct.” (citations omitted)).

Ms. Laibow’s opposition fails to establish that she should be permitted to

proceed as the pro se representative of Gen. Stubbiebine’s estate. The

complaint is consistent with a conclusion that Ms. Laibow is the sole

beneficiary of the estate—it states that at the time of his death, Gen.

Stubblebine was without known children—but it does not precisely allege that.

(DE 1 § 3).6 Moreover, Dr. Menashe produced a decision of the Virginia Court

6 To her opposition brief, Ms. Laibow attaches a copy of what purports to be Gen.

Stubblefield’s Last Will and Testament. (DE 20, Ex. A). Analysis of the status of the

heirs and creditors nevertheless remains outside the scope of this, a Rule 12(b)(6)

motion to dismiss the complaint.

12

of Appeals that suggests that, at the time of his divorce from an earlier wife,

Gen. Stubblebine had two adopted children. (DE 18-7). At any rate, Ms.

Laibow’s complaint fails to allege the other prerequisite—that the estate does

not have any creditors.

Ms. Laibow’s brief in opposition also relies on authority that is not quite

on point:

[C]ontrary to Defendants’ unwarranted misrepresentations, both

New Jersey law (N.J.R 1:21-1(4) .. . and [] Third Circuit case law

have plainly held that a pro se party, who is the real party in

interest in an estate (as the Plaintiff is as the sole beneficiary of the

Estate of the Decedent}, may in fact appear and speak for that

estate while acting pro se. See, e.g., Murray v. City of Philadelphia,

No. 16-3145 [901 F.3d 169] (8rd Cir. 2018)....

(DE 20 { 4).

N.J.R. 1:21-1(4) is a state court rule. It provides that “[a] person not

qualifying to practice pursuant to the first paragraph of this rule shall

nonetheless be permitted to appear and prosecute or defend an action in any

court of this State if the person . . . is a real party in interest to this action.” I

cannot apply state law standards as to who is a “real party in interest,”

however. A federal court sitting in diversity is bound to apply federal—not

state—rules of court procedure. See Erie, 304 U.S. at 78.

The cited Murray decision does address federal standards. It does not

directly support Ms. Laibow’s position here, however, because it was deciding a

different issue.

Murray cites at length the general rule that a non-lawyer may not

represent another person or entity in federal court:

Although an individual may represent herself or himself pro se, a

non-attorney may not represent other parties in federal court. See

Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 232 (3d Cir.

1998) (“The rule that a non-lawyer may not represent another

person in court is a venerable common law rule.”), abrogated on

other grounds by Winkelman ex rel. Winkelman v. Parma City Sch.

Dist., 550 U.S. 516 (2007). This principle has been applied by the

Supreme Court, this Court, and other courts in various contexts.

13

See, e.g., Rowland v. Cal. Men’s Colony, 506 U.S. 194, 202 (1993)

(recognizing that corporations must be represented by counsel and

that “save in a few aberrant cases, the lower courts have uniformly

held that 28 U.S.C. § 1654... does not allow corporations,

partnerships or associations to appear in federal court otherwise

through a licensed attorney” (footnote omitted)); Simon v. Hartford

Life, Inc., 546 F.3d 661, 667 (9th Cir. 2008) (holding that a non-

lawyer could not litigate pro se on behalf of an ERISA plan); Osei-

Afriyie |v. Med. Coll. of Pa.], 937 F.2d [876,] 882 [(3d Cir. 1991)]

(“We hold that Osei-Afriyie, a non-lawyer appearing pro se, was not

entitled to play the role of attorney for his children in federal

court.”); Phillips v. Tobin, 548 F.2d 408, 411-12 (2d Cir. 1976)

(holding that a non-attorney could not appear pro se to conduct a

shareholder’s derivative suit).

Murray, 901 F.3d at 170-71.

Murray then disallows representation by a plaintiff who, unlike Ms.

Laibow, was a non-beneficiary administrator of the estate. Thus Murray’s

holding neither favors nor disfavors Ms. Laibow’s position here. In so holding,

however, Murray emphasized the policy considerations underlying the general

rule requiring attorney representation:

We turn to whether a non-attorney, non-beneficiary administrator

like Murray conducts her “own case” when representing an estate

in federal court. 28 U.S.C. § 1654. The answer is no. If an estate

has one or more beneficiaries besides the administrator, then the

case is not the administrator’s own because the interests of other

parties are directly at stake. The interests of other parties, such as

beneficiaries, may not be represented by a non-attorney

administrator of an estate. Accordingly, we hold that this case is

not Murray’s own and that she may not conduct it pro se on behalf

of her granddaughter, the estate’s sole beneficiary.

Our holding accords with those of our sister Courts of Appeals to

consider the question we decide today. Further, practical

considerations support our holding. Attorneys’ training,

experience, and their “ethical responsibilities and obligations” help

ensure that a represented party’s interests are not squandered.

Collinsgru, 161 F.3d at 231; see Osei-Afriyie, 937 F.2d at 882

(holding that a pro se father’s “lack of legal experience has nearly

cost his children the chance ever to have any of their claims

14

heard.”). Only attorneys may be sued for legal malpractice; a

represented party could not seek recourse against a non-attorney

for even the most egregious conduct. See Collinsgru, 161 F.3d at

231. Accordingly, our holding limiting pro se representation

pursuant to § 1654 “serve[s] the interests of the represented party

as well as the interests of adversaries and the court.” Pridgen, 113

F.3d at 393.

Murray, 901 F.3d at 171-72.

All of that said, the Murray decision might be read to suggest in dictum

that, if faced by the issue, it would adopt what I have termed the “liberal view”

that the sole beneficiary of an estate with no creditors may represent it in

federal court. Murray cited with approval several cases that, if only by negative

implication, acknowledge or adopt that view:

See, e.g., Rodgers |v. Lancaster Police & Fire Dep’t, 819 F.3d 205,

211 (5th Cir. 2016)]; (holding that a person may represent an

estate pro se “if that person is the only beneficiary and the estate

has no creditors”); Malone v. Nielson, 474 F.3d 934, 937 (7th Cir.

2007) (per curiam) (“[I]f the administrator is not the sole

beneficiary of the estate, then he or she may not represent the

estate in court.”}; Jones [ex rel. Jones v. Corr. Med. Servs., Inc., 401

F.3d 950, 952 (8th Cir. 2005)] (“[The administrator] is not the only

beneficiary/creditor of [the] .. . estate. Thus, as a nonattorney, (he]

may not engage in the practice of law on behalf of others.”);

Shepherd v. Wellman, 313 F.3d 963, 970-71 (6 Cir. 2002);

Pridgen, 113 F.3d at 393 (*[A]Jn administratrix ... of an estate may

not proceed pro se when the estate has beneficiaries or creditors

other than the litigant.”); see also Reshard v. Britt, 839 F.2d 1499

(11th Cir. 1988) (en banc) (plurality opinion) (per curiam) (affirming

by operation of law as a result of an equally divided en banc court

the district court’s ruling that estate representatives could not

proceed pro se when the estate had other beneficiaries).

Murray, 901 F.3d at 172 n.3.

Ms. Laibow has not pled or otherwise established both that she is the

sole beneficiary of the estate and that there are no other creditors. Dr.

Menashe’s motion to dismiss is therefore GRANTED. The dismissal is, however,

without prejudice, because it is not futile to anticipate that this defect could be

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cured— if not by amendment of the complaint, then surely by retention of an

attorney to represent the estate.

III. CONCLUSION

For the reasons set forth above, the motion to dismiss is GRANTED.

An appropriate order follows.

Dated: January 8, 2020 □□

Hon. Kevin McNulty

United States District Judge

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