Thursday, May 21, 2020
Last month, the Ninth Circuit issued an interesting decision in LN Management v. JPMorgan Chase Bank. The opinion is authored by Sixth Circuit Judge Danny Boggs (sitting by designation). It begins:
There are a number of ways to accomplish litigation regarding interests once held by a dead person. One can institute or join probate proceedings, for instance, or sue the executor of an estate in courts of general jurisdiction, or in some circumstances proceed directly against the successors of the deceased. Rarely do we see efforts to actually engage the dead in litigation. This case turns on such a question, which is of first impression in this circuit: can you sue a dead person?1
The answer may seem obvious. Yet strangely, in the 129-year history of this court, we have never been called upon to rule on this issue. We do so today, and we resolve the question in the negative.
And here is footnote 1:
There is ample extrajudicial literature bearing on this question. Dead men, we know from multiple authorities, would not make good litigants. They “tell no tales,” so they would be bad witnesses and deponents. See PIRATES OF THE CARIBBEAN: DEAD MEN TELL NO TALES (Walt Disney Pictures 2017). Since “you can’t take it with you,” they are judgment-proof defendants. See GEORGE S. KAUFMAN & MOSS HART, YOU CAN’T TAKE IT WITH YOU 75 (Dramatists Play Svc., Inc. 1937). And there is persuasive authority that, in whichever of the two traditional locations the deceased is now to be found, obtaining personal jurisdiction and serving of process would be difficult. See U. S. ex rel. Mayo v. Satan & his Staff, 54 F.R.D. 282, 283 (W.D. Pa. 1971) (finding no personal jurisdiction over defendant notwithstanding the “unofficial account” of The Devil and Daniel Webster); State Senator Ernie Chambers v. God, No. 1075-462, (Neb. Douglas Cty. Dist. Ct. Oct. 8, 2008) (dismissing case due to impossibility of service on Defendant), appeal dismissed; order vacated (Neb. Ct. App., No. 08-1180, Feb. 25, 2009).