# McCants v. United States

> District Court, N.D. Alabama · April 4, 2022

URL: https://www.frixlaw.com/law-library/cases/9991038

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** April 4, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

CHERYL MCCANTS, on behalf of )
the ESTATE OF PETTIS NIX in )
her capacity as Personal )
Representative/Executor of the )
Estate of Pettis Nix, )
)
Plaintiff, )
)
v. ) Case No.: 5:21-cv-01327-LCB
)
UNITED STATES OF AMERICA, )
)
Defendant. )

MEMORANDUM OPINION & ORDER
Before the Court is Defendant United States of America’s Motion to Dismiss,
or in the Alternative, for Summary Judgment. (Doc. 7). For the reasons that follow,
the government’s motion to dismiss is GRANTED.
BACKGROUND
This case arises from the death of Pettis Nix. Mr. Nix died on July 26, 2014,
after an extended period of treatment and care with the Department of Veterans
Affairs. (Doc. 1 at 5-18). In his will, Mr. Nix appointed Plaintiff Cheryl McCants as
the executor of his estate. (Doc. 7-1 at 8). On October 4, 2021, Ms. McCants filed
this case pro se under the Federal Torts Claim Act, 28 U.S.C. §§ 1346(b), 2671-
2680, the Alabama Medical Liability Act, Ala. Code §§ 6-5-548, 6-5-549, 6-5-549.1,
and the Alabama Wrongful Death Statute, Ala. Code § 6-5-410, alleging that the VA
and several of its physicians negligently caused Mr. Nix’s death. (Doc. 1). Ms.

McCants purported to sue the VA “in her capacity as the duly appointed personal
representative and executor of the Estate of Pettis Nix, on behalf of the estate of
Pettis D. Nix”. (Doc. 1 at 1). Additionally, in the case caption, Ms. McCants referred

to herself as “Cheryl McCants, on behalf of the ESTATE OF PETTIS NIX in her
capacity as Personal Representative/Executor of the Estate of Pettis Nix”. Id. Ms.
McCants also signed her complaint as “Cheryl McCants, Executor of the Estate of
Pettis Nix”. Id. at 26.

LEGAL STANDARD
The Federal Rules of Civil Procedure require that a complaint contain “a short
and plaint statement of the claim showing that the pleader is entitled to relief.” Fed.

R. Civ. P. 8(a)(2). The complaint must include enough facts to “raise a right to relief
above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Pleadings that contain nothing more than “a formulaic recitation of the elements of
a cause of action” do not meet Rule 8’s standards; nor do pleadings suffice that are

based merely upon “labels and conclusions” or “naked assertion[s]” without
supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6) motion to
dismiss, courts view the allegations in the complaint in the light most favorable to
the non-moving party. Watts v. Fla. International Univ., 495 F.3d 1289, 1295 (11th
Cir. 2007).

To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim
has facial plausibility 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). Although “[t]he plausibility
standard is not akin to a ‘probability requirement,’” the complaint must demonstrate
“more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible

claim for relief requires “enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence” to support the claim. Twombly, 550 U.S. at 556.
When reviewing a Rule 12(b)(6) motion to dismiss, a court must “1) eliminate

any allegations in the complaint that are merely legal conclusions; and 2) where there
are well-pleaded factual allegations, ‘assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.’” Kivisto v. Miller,
Canfield, Paddock & Stone, PLC, 413 Fed. App’x. 136, 138 (11th Cir. 2011) (per

curiam) (quoting Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir.
2011)). That task is context specific, and, to survive the motion, the allegations must
permit the court based on its “judicial experience and common sense . . . to infer

more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679. If the court
determines that well-pleaded facts, accepted as true, do not state a claim that is
plausible on its face, the claims must be dismissed. Twombly, 550 U.S. at 556, 570.

DISCUSSION
The issue first before the Court centers on Ms. McCants’s status as a pro se
litigant. In short, the parties dispute whether Ms. McCants can bring her particular

claims as a pro se plaintiff. The government argues that Ms. McCants proceeds on
behalf of Mr. Nix’s estate, so she is not pursuing her individual claims. Ms. McCants
asserts that her claims are not on the estate’s behalf, so the claims do not bar her
from proceeding pro se. The arguments implicate the most basic theories of the right

to litigate pro se and raise important questions about the limits of a non-attorney to
pursue claims in a court of law.
In federal courts, some parties have the right to pursue their claims without

counsel. Specifically, 28 U.S.C. § 1654 provides 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.” 28 U.S.C. § 1654. The Northern District of Alabama, in turn,

promulgated a local rule governing pro se litigants. Local Rule 83.1(d) provides that
“[i]n all cases filed in or removed to this court, a party may appear . . . if an
individual, by himself or herself pro se.”
Alabama state law similarly grants certain parties the right to pursue their
claims pro se. For instance, the Alabama Constitution grants individuals the right to

proceed in Alabama courts with or without counsel. Ala. Const. Art. I, § 10. (“That
no person shall be barred from prosecuting or defending before any tribunal in this
state, by himself or counsel, any civil cause to which he is a party.”). These rules are

innocuous enough. They provide that an individual may pursue their own claims—
or defend against claims brought against them—without counsel.
But the right to proceed pro se is not limitless. An individual proceeding pro
se is not an attorney. In general, courts restrict non-attorneys from representing the

interests or rights of other parties. An example from this Circuit is Timson v.
Sampson, 518 F.3d 870, 873 (11th Cir. 2008). There, the plaintiff attempted to bring
a qui tam action1 under the Federal Claims Act pro se. The court explained that a qui

tam suit under the FCA is not personal but is in the federal government’s interests.
Ultimately, the court held that the right to proceed pro se under § 1654 does not
extend to actions representing the rights of others.
The court’s holding in Timson is in line with the consensus among the

Circuits. See, e.g., Murray ex re. Estate of Purnell v. City of Philadelphia, 901 F.3d

1 A qui tam action—shortened from the Latin phrase qui tam pro domino rege quam pro se ipso
in hac parte sequitur meaning “who as well for the king as for himself sues in this matter”—is
“[a]n action brought under a statute that allows a private person to sue for a penalty, part of which
the government or some specified public institution will receive.” Qui tam action, Black’s Law
Dictionary (11th ed. 2019).
169, 170-71 (3d Cir. 2018); Guest v. Hansen, 603 F.3d 15, 20-21 (2d Cir. 2010);
Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975); United States v. Onan,

190 F.2d 1, 6 (8th Cir. 1951).
While surveying the law of the Circuits, however, one notable exception
relevant to this case emerges. When a party proceeds on an estate’s behalf, and is

that estate’s only beneficiary, courts allow them to proceed pro se despite their legal
status as a representative for the interests of another. For example, in Rodgers v.
Lancaster Police & Fire Dept., 819 F.3d 205 (5th Cir. 2016), a mother attempted to
proceed pro se on behalf of her son’s estate for a Texas wrongful death claim. The

Fifth Circuit held that an estate’s representative can proceed pro se if they are the
estate’s sole beneficiary. Id. at 210-11. The logic is easy enough to follow. Although
proceeding on another party’s behalf, the actual benefits will flow solely to the

representative, so the representative is in effect representing exclusively their own
interests.
Conversely, when an estate has multiple beneficiaries, the representative
cannot proceed pro se. In Jones ex rel. Jones v. Correctional Medical Servs., Inc.,

an administrator of an estate attempted to proceed pro se. 401 F.3d 950 (8th Cir.
2005). The Eighth Circuit held that a pro se party cannot represent an estate with
multiple beneficiaries. Id. at 952. The court reasoned that an opposite conclusion

would allow a pro se party to represent the interests of multiple parties.
This federal treatment of estate representatives is consistent with Alabama
state law. In Ex parte Ghafary, the Alabama Supreme Court held that the state’s pro

se code section “prohibits a nonattorney executor or personal representative from
representing an estate before a court of law. Thus, the complaint filed by [the]
executrix was a nullity . . . .” 738 So. 2d 778, 781 (Ala. 1998). To sum it up, when

an individual brings a claim that benefits only themselves, they may proceed pro se.
When a claim will necessarily benefit a class of other parties, however, the individual
litigates the rights and interests of others and cannot proceed pro se.
In this case, the government argues that Ms. McCants exceeds the limits of

proceeding pro se because her claim is on Mr. Nix’s estate’s behalf, and she is not
the estate’s sole beneficiary. (Doc. 7 at 8-13). Ms. McCants responds that Alabama
law makes clear that a wrongful death action is not brought on a decedent estate’s

behalf. (Doc. 10 at 2-8). The government does not meaningfully address Ms.
McCants’s argument in its reply. Rather, the government focuses on the form of Ms.
McCants’s complaint, highlighting the case caption and Ms. McCants’s signature.
(Doc. 12 at 3).

But the government’s focus on the complaint’s form is misplaced. Ms.
McCants, despite this dispute, is still a pro se litigant. And “[a] document filed pro
se is to be liberally construed[,] . . . and a pro se complaint . . . must be held to less

stringent standards than formal pleadings drafted by lawyers”. Erickson v. Pardus,
551 U.S. 89, 94 (2007). As shown above, the substantive nature of the claims a pro
se litigant pursues determines whether the litigant has a right to proceed pro se.

Given the unique importance of the underlying claims, the Court finds that, in this
case, it must evaluate the nature of Ms. McCants’s claims to determine if she may
pursue the claims pro se. Accordingly, the Court will not dismiss Ms. McCants’s

complaint based on its form alone. Thus, the question before the Court is whether
Ms. McCants’s claims are individual or on the behalf of others.
Turning to the complaint, Ms. McCants sues the VA under the Federal Tort
Claims Act, the Alabama Medical Liability Act, and the Alabama Wrongful Death

Statute. (Doc. 1 at 1). In essence, Ms. McCants brings an Alabama wrongful death
action against the VA through the FTCA. That is because the FTCA adopts state law
wholesale. The FTCA’s jurisdictional grant covers “circumstances where the United

States, if a private person, would be liable to the claimant in accordance with the law
of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). See also
28 U.S.C. § 2674. The United States Supreme Court, evaluating the FTCA as a
whole, found that “the extent of the United States’ liability under the FTCA is

generally determined by reference to state law.” Molzof v. United States, 502 U.S.
301, 305 (1992). The Eleventh Circuit has further verified that the FTCA “requires
that the ‘whole law of the State where the act or omission occurred’ . . . be applied.”
Gonzalez-Jiminez De Ruiz ex rel. Gonzalez v. United States, 378 F.3d 1229, 1230
n.1 (11th Cir. 2004) (quoting Richards v. United States, 369 U.S. 1, 11 (1962)).

Given the FTCA incorporates state law, the Court’s focus is whether an
Alabama wrongful death action is personal or on behalf of others. While the Court
agrees with Ms. McCants that her claim is not on behalf of Mr. Nix’s estate, she still

cannot proceed pro se because her claim litigates other parties’ interests. No cause
of action for wrongful death existed under the common law, so wrongful death
claims are brought exclusively under the Alabama Wrongful Death Statute. Waters
v. Hipp, 600 So. 2d 981, 982 (Ala. 1992). The statute provides that “[a] personal

representative may commence an action and recover such damages . . . for the
wrongful act, omission, or negligence of any person . . . whereby the death of the
testator or intestate was caused”. Ala. Code § 6-5-410(a). Important here, the statute

explains that “[t]he damages recovered are not subject to the payment of the debts
or liabilities of the testator or intestate, but must be distributed according to the
statute of distributions.” Ala. Code § 6-5-410(c).
Interpreting that statutory language, the Alabama courts have clearly held that

a wrongful death action under the Alabama Wrongful Death Statute is not on the
decedent estate’s behalf. Kirksey v. Johnson, 166 So. 3d 633, 645 (Ala. 2014) (“A
wrongful-death action is not brought by the estate of the decedent; accordingly, the

proceeds from a wrongful-death action are not part of the decedent’s estate.”).
However, as the statute’s terms indicate, an individual who brings an action under
the statute does so for the benefit of statutory beneficiaries. The Alabama Supreme

Court has explained that the statutory beneficiaries make the personal representative
a mere nominal party. In Goldstein v. Cont’l Motors, Inc., 270 So. 3d 1148, 1154-
55 (Ala. 2018) the court adopted the holding of the Alabama Court of Civil Appeals

in Scroggins v. Johnson, 907 So. 2d 1059, 1064 (Ala Civ App. 2004). Specifically,
the Alabama Supreme Court adopted the Court of Civil Appeals’ explanation of a
personal representative’s role in litigation:
In the context of a wrongful-death action, the sole role of a personal
representative such as an administrator or an executor, “is to maintain
the suit, and collect the damages and pay them over the distributees”;
in other words, an administrator is “a mere agency and conduit,
provided by the [wrongful-death] statute for bringing the suit,
collecting the damages, and passing them over to those entitled
thereto.” Hatas v. Partin, 278 Ala. 65, 68, 175 So. 2d 759, 761 (1965)
(quoting Kennedy v. Davis, 171 Ala. 609, 612, 55 So. 104, 105 (1911)).
For this reason, the personal representative may properly be said to be
“only [a] nominal or formal party.” Board of Trustees of Univ. of
Alabama v. Harrell, 43 Ala. App. 258, 261, 188 So. 2d 555, 557 (1965).

Scroggins, 907 So. 2d at 1064. That is, in Alabama, a personal representative
in a wrongful death action proceeds on the statutory beneficiaries’ behalf as a
nominal party.
The parties spill much ink in their briefing about whether Ms.
McCants’s claims are on behalf of Mr. Nix’s estate. The Court finds that
clearly under Alabama law they are not. Kirksey, 166 So. 3d at 645. But,
contrary to what Ms. McCants argues, that alone does not give her carte
blanche to sue the VA without counsel. Alabama law makes equally clear that

as the personal representative under the Alabama Wrongful Death Statute,
McCants is a mere nominal party litigating the claim on the statutory
beneficiaries’ behalf. Goldstein, 270 So. 3d at 1154-55. Further, Ms. McCants

admits in her response that she is not the statutory beneficiary class’s sole
member. (Doc. 10 at 5 n.1). That admission proves fatal. Ms. McCants, as a
nominal party who is admittedly proceeding for a class of others under the
Alabama Wrongful Death Statute, litigates the interests and rights of others.

See Timson, 518 F.3d at 873. Therefore, Ms. McCants is not exclusively
representing her own interests and therefore cannot proceed pro se.
Accordingly, under Alabama law, her complaint is a legal nullity.2 See Ex

parte Ghafary, 738 So. 2d at 781.
Ms. McCants advances one final argument meriting attention. She
contends that, because of the statutory beneficiaries, “the only thing that the
personal representative is obligated to do is that in the event he/she chooses

to maintain a wrongful death case in Alabama and is successful, an actual or

2 As the government points out in its reply, Ms. McCants’s original complaint is a legal nullity.
(Doc. 12 at 2). In conjunction with her response, Ms. McCants purported to file an amended
complaint. See (Doc. 11). But, because the original complaint is a legal nullity, amendment is
futile.
constructive trust appears to be created and they are obligated to collect and
disburse the damages awarded.” (Doc. 10 at 11). In other words, McCants

asserts that the right to sue under the Alabama Wrongful Death Statute is
individual, but a successful award makes her a trustee administering a
constructive trust on behalf of the statutory beneficiaries.

This argument is creative, but unavailing. First, Alabama law is clear
that the personal representative litigates on behalf of the statutory
beneficiaries, not themselves. Goldstein, 270 So. 3d at 1154-55. Second, if
McCants is right that the statute creates a constructive trust and appoints her

the trustee, she would still pursue a claim on other parties’ behalf. Without
venturing too far into the weeds, the principles of trust law defeat Ms.
McCants argument. Trustees in Alabama owe beneficiaries a fiduciary duty

of loyalty. Ala. Code § 19-3B-802. Paramount to that duty is the principle that
“[a] trustee shall administer the trust solely in the interests of the
beneficiaries.” Id. § 19-3B-802(a). Put simply, Ms. McCants’s argument fails
because she argues that she can proceed pro se on her own behalf in order to

create a situation where she acts “solely in the interests of the beneficiaries.”
Id. Accordingly, she cannot proceed pro se.
CONCLUSION
For these reasons, the government’s motion to dismiss (Doc. 7) is
GRANTED, and Ms. McCants’s complaint is DISMISSED WITHOUT
PREJUDICE.
DONE and ORDERED this April 4, 2022.

Lo SEZ Sha
LILES C. BURKE
UNITED STATES DISTRICT JUDGE

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9991038. Public record. Not legal advice.