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March 28, 1984


The opinion of the court was delivered by: Shadur, District Judge.


Plaintiffs have previously suggested the death of defendant J.S. Pieronett and moved that the personal representative of his estate be substituted as defendant in his place. Because no personal representative had then been appointed, on June 7, 1983 this Court entered and continued the motion for substitution generally.

On December 27, 1983 plaintiffs filed "Suggestions for Substitution of Defendants," advising that no estate had been opened for Mr. Pieronett and suggesting that this Court name the State's Attorney of DuPage County as special administrator in accordance with Ill.Rev.Stat. ch. 110, ¶ 2-1008(b) ("Paragraph 2-1008(b)"). This Court expressed serious reservations about its power in that respect and invited the parties to submit authorities dealing with the issue.

In response plaintiffs have cited Nichols v. Marshall, 491 F.2d 177 (10th Cir. 1974) and Leick v. Phelan, 367 F. Supp. 824 (N.D.Ill. 1973). Neither does the job for them:

    1. All Nichols teaches is that "a federal
  district court in a diversity case [generally] has
  the same jurisdiction as does the state court of
  general jurisdiction in the state where the federal
  district court is sitting" (491 F.2d at 180). But
  the personal representative in Nichols had already
  been appointed by the

  appropriate probate court (the state court), so
  there was no hint the federal court would have
  power to make that appointment. On the contrary,
  the implications of the opinion — referring as it
  does to appointments in Kansas probate proceedings,
  id. at 180, 182 — are to the contrary.
    2. As for Leick, Judge Bauer proceeded to
  construe the predecessor of Section 2-1008(b) and
  held it did not apply to the situation confronting
  him. Plainly his attention was not addressed to the
  jurisdictional question posed by this Court.

It must be remembered that though state law provides the substantive rules of decision in diversity actions, matters of procedure — of practice — are determined under federal law. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). Any provision deriving from a state's Code of Civil Procedure (the title of Chapter 110 of the Illinois statutes) starts out at least inherently suspect as a putative source of power for a federal court.

At least two factors deepen that inherent suspicion:

    1. Paragraph 2-1008(b) itself requires "the
  court" (and of course that obviously speaks of an
  Illinois state court) to serve "such notice to
  the party's heirs, legatees or devisees as the
  court directs," and then provides the same court
  "without opening of an estate, may appoint a
  special administrator for the deceased party for
  the purpose of prosecuting or defending the
  action." That substitution for formal probate
  proceedings nonetheless partakes of a
  probate-type power (involving ascertainment of
  heirs, legatees or devisees and appointment of
  the personal representative, all as only a
  probate court may normally do). It is of course
  well known that probate-type proceedings are a
  specific historic (albeit judge-created)
  exception to federal courts' diversity
  jurisdiction. Markham v. Allen, 326 U.S. 490, 494,
  66 S.Ct. 296, 298, 90 L.Ed. 256 (1946); Rice v.
  Rice Foundation, 610 F.2d 471, 474-75 (7th Cir.
  1979); see also Dragan v. Miller, 679 F.2d 712, 713
  (7th Cir. 1982).
    2. Fed.R.Civ.P. ("Rule") 17 controls the
  procedure and practice as to parties in the
  federal courts. Under Rule 17(b), capacity of
  someone "acting in a representative capacity" is
  dealt with — but only Rule 17(c) specifically
  authorizes the federal court to appoint a personal
  representative — and that is specifically limited
  to appointment of guardians ad litem for infants or
  incompetents. By negative implication no such power
  exists to appoint a personal representative in the
  case of a decedent.

Thus nothing submitted to this Court supports its power to take the action requested by plaintiffs.

Accordingly plaintiffs' motion is denied. This should not be viewed as a final, with-prejudice rejection. It is rather that under the circumstances the burden of persuasion is on plaintiffs, and they simply have not met it by what they have tendered (nor has this Court's own research, though admittedly limited, uncovered anything supportive).


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