United States District Court, E.D. California
ORDER & AMENDED FINDINGS AND
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
proceeding in pro per, filed this civil rights action
pursuant to, among other things, the Fair Debt Collection
Practices Act (42 U.S.C. § 1692), the California
Homeowner Bill of Rights Act (Cal. Civ. Code § 2923),
and the Racketeer Influenced and Corrupt Organizations
(“RICO”) Act (18 U.S.C. § 1962(c)). (ECF No.
1.) Plaintiff alleges claims in connection with a foreclosure
on his property. (Id.) On June 6, 2018, the court
was notified of plaintiff's death through a status
conference (ECF No. 21) and later through defendant Wells
Fargo Bank, NA's suggestion of death (ECF No. 23).
order filed June 3, 2019, the court granted the executor of
plaintiff's estate thirty days to retain counsel and
re-file his motion for an order substituting a personal
representative on behalf of plaintiff in accordance with
Local Rule 230. (ECF No. 36.) Thirty days from that date has
now expired and the executor of plaintiff's estate has
not appeared through counsel. As noted in the court's
order, the executor of plaintiff's estate cannot
represent the decedent plaintiff's estate pro se in this
action. (Id.); see also Estate of Wilson by
& through Wheale v. R-Ranch Prop. Owners'
Ass'n, No. 2:13-CV-435-EFB, 2013 WL 12307846, at *1
(E.D. Cal. Dec. 4, 2013) (executor of estate cannot pursue
the interests of the estate without legal representation and
is not permitted to appear on behalf of another in a
representative capacity (collecting cases)); Equity Tr.
Co. v. Brickhaven Condo. Ass'n, No.
EDCV152367JFWDTBX, 2016 WL 8856651, at *5 (C.D. Cal. Apr. 25,
2016) (“It is well established that the privilege to
represent oneself pro se provided by 28 U.S.C. § 1654 is
personal to the litigant and does not extend to other parties
or entities.” (collecting cases)).
26, 2019, appearing pro se and not through counsel, the
executor of the decedent plaintiff's estate filed a
document titled motion emergency restraining order and
injunction (ECF No. 37) and a motion for substitution (ECF
No. 38). Wells Fargo Bank opposed both motions on June 28,
2019 (ECF No. 39) and July 8, 2019 (ECF No. 40),
the executor of decedent plaintiff's estate failed to
comply with the court's June 3, 2019 order and retain
counsel and re-file his motion, the court will recommend
denial of the June 26, 2019 motions and dismissal of this
action. (See ECF No. 36 (“The executor of
plaintiff's estate is also hereby cautioned that failure
to timely file a motion to substitute in accordance with this
order and applicable rules will result in a recommendation
that this action be dismissed.”).)
the motion for emergency restraining order and injunction,
which appears to be a motion for temporary restraining order
(ECF No. 37-1 at 1), notwithstanding the fact that it was not
filed through retained counsel, it is also procedurally
deficient. Local Rule 231(c) provides that a motion for
temporary restraining order must include, inter
alia, a proposed temporary restraining order with a
provision for a bond and a proposed order with blanks for
fixing the time and date for hearing a motion for preliminary
injunction. Because the executor of decedent plaintiff's
complaint cannot proceed without counsel and because the
motion for emergency restraining order is procedurally
deficient, the court will recommend denying this motion.
July 11, 2019 findings and recommendations in this matter
(ECF No. 41) are hereby VACATED.
these reasons, IT IS HEREBY RECOMMENDED that this action be
dismissed without prejudice. See Local Rule 110;
FURTHER RECOMMENDED that the motion for emergency restraining
order and injunction (ECF No. 37) and motion for substitution
of party (ECF No. 38) be denied without prejudice.
FURTHER ORDERED that a copy of these findings and
recommendations be served on Howard James Redmond Bey at the
following address: 1440 Bobing Drive, Lewisville, Texas
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, plaintiff may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” Plaintiff is
advised that failure to file objections ...