Murray Ex Rel. Purnell v. City of Phila.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3145
_____________
TRACY MURRAY,
on behalf of The Est. of Albert Purnell, II (Deceased)
v.
CITY OF PHILADELPHIA;
PHILADELPHIA POLICE DEPARTMENT;
DAVID ERBELE, Police Officer;
NICHOLAS HALBHERR, Police Officer
Tracy Murray,
Appellant
On Appeal from the United States District Court for the
Eastern District of Pennsylvania
(D.C. No. 2-11-cv-06900)
Hon. C. Darnell Jones, II
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 15, 2018
Before: SMITH, Chief Judge, CHAGARES, FUENTES,
Circuit Judges.
(Filed: August 21, 2018)
Tracy Murray, appellant pro se
1530 East Maryland Street
Philadelphia, PA 19138
Daniel J. Auerbach
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
Counsel for Appellees
Will W. Sachse, Esq.
Ellen L. Mossman, Esq.
Dechert LLP
Cira Centre
2929 Arch Street
Philadelphia, PA 19104
Chase McReynolds
University of Pennsylvania Law School
3400 Chestnut Street
Philadelphia, PA 19104
(Admitted Pursuant to Third Circuit L.A.R. 46.3)
Amicus Curiae
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OPINION
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CHAGARES, Circuit Judge.
2
Tracy Murray was named the administrator of her son’s
estate, of which her son’s daughter was the sole beneficiary.
Murray instituted a civil rights lawsuit on behalf of the estate
and now appeals an adverse judgment entered after a jury trial
in the United States District Court for the Eastern District of
Pennsylvania. Although Murray was represented by counsel
in the District Court, she filed this appeal pro se. We hold that
a non-attorney who is not a beneficiary of the estate may not
conduct a case pro se on behalf of the estate. As a result, we
will dismiss Murray’s appeal.
I.
David Erbele and Nicholas Halbherr, Philadelphia
police officers, shot and killed Albert Purnell, II. Purnell died
intestate. Purnell’s minor daughter is the sole beneficiary of
the estate. See 20 Pa. Cons. Stat. § 2103. Murray, Purnell’s
mother, hired an attorney and obtained letters of administration
to act on behalf of her son’s estate. Murray filed a lawsuit in
the Court of Common Pleas of Philadelphia on behalf of the
estate alleging excessive force against the City of Philadelphia,
Erbele, and Halbherr under 42 U.S.C. § 1983 and state law.
The City removed the case to the United States District Court
for the Eastern District of Pennsylvania, and Murray withdrew
her state-law claims. The District Court granted summary
judgment to the City on Murray’s § 1983 claim, but allowed
her remaining § 1983 claim against Erbele and Halbherr to
proceed to a jury trial. The officers’ chief defense at trial was
that they had used deadly force in self-defense. The jury
returned verdicts in favor of Erbele and Halbherr.
Murray subsequently filed a pro se notice of appeal.
This Court ordered the pro bono appointment of amicus curiae
3
to address whether Murray may proceed pro se on behalf of
Purnell’s estate. 1
II.
We must decide whether Murray, a non-attorney, may
litigate an appeal pro se as the non-beneficiary administrator of
her son’s estate. Under 28 U.S.C. § 1654, “the parties may
plead and conduct their own cases personally or by counsel” in
the federal courts. Section 1654 thus ensures that a person may
conduct his or her own case pro se or retain counsel to do so.
See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882 (3d
Cir. 1991) (“The statutory right to proceed pro se reflects a
respect for the choice of an individual citizen to plead his or
her own cause.” (quoting Cheung v. Youth Orchestra Found.
of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990))).
Although an individual may represent herself or himself
pro se, a non-attorney may not represent other parties in federal
court. See Collingsgru 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
1
We express our gratitude to amicus curiae counsel Ellen
L. Mossman and Will W. Sachse of Dechert LLP, and Chase
McReynolds of the University of Pennsylvania Law School,
and commend them for their high-quality assistance. The
amicus curiae counsel also addressed whether an estate may be
granted in forma pauperis status. Because of our holding, we
need not consider this issue.
4
Court, and other courts in various contexts. 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, 937 F.2d at 882 (“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).
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, 2 may not be
represented by a non-attorney administrator of an estate.
Accordingly, we hold that this case is not Murray’s own and
2
Other courts have indicated that an estate’s creditors
may also have interests in that estate. See, e.g., Rodgers v.
Lancaster Police & Fire Dep’t, 819 F.3d 205, 211 (5th Cir.
2016); Jones ex rel. Jones v. Corr. Med. Servs., Inc., 401 F.3d
950, 952 (8th Cir. 2005); Pridgen v. Andresen, 113 F.3d 391,
393 (2d Cir. 1997).
5
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. 3 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 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.
3
See, e.g., Rodgers, 819 F.3d at 211 (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, 401
F.3d at 952 (“[The administrator] is not the only
beneficiary/creditor of [the] . . . estate. Thus, as a non-
attorney, [he] may not engage in the practice of law on behalf
of others.”); Shepherd v. Wellman, 313 F.3d 963, 970–71 (6th
Cir. 2002); Pridgen, 113 F.3d at 393 (“[A]n 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).
6
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.
Our decision is not based on Murray’s particular
abilities or motivations. Murray is Purnell’s mother and the
grandmother of the estate’s beneficiary. With that in mind, we
have no reason to doubt her sincere desire to zealously advance
the claims she has brought. Nevertheless, the law governing
representation in federal courts requires us to conclude that as
a non-attorney and non-beneficiary of the estate, she may not
represent the estate pro se because this case is not Murray’s
own within the meaning of § 1654. This Court advised Murray
on October 27, 2016 and March 29, 2017 that a non-attorney
could not represent an estate and granted her time to obtain
counsel on the estate’s behalf. Because it is clear that Murray
is unable or unwilling to obtain counsel for the estate, dismissal
is appropriate at this time.
III.
For the foregoing reasons, we will dismiss Murray’s
appeal on behalf of the estate. Murray’s motions for the
appointment of counsel and motion for transcript copies at the
government’s expense are dismissed as moot.
7