United States District Court, Northern District of Illinois, E.D
March 28, 1984
MARGARET COLEMAN, ET AL., PLAINTIFFS,
ROBERT MCLAREN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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
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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