[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 97-8415
D. C. Docket No. 1:92-cv-103-JEC
ALEJANDRO ESCARENO,
Plaintiff-Appellant,
versus
NOLTINA CRUCIBLE AND REFRACTORY CORPORATION, et al.,
Defendants,
CARL NOLTE SOHNE GMBH,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Georgia
(May 1, 1998)
Before COX, DUBINA and BLACK, Circuit Judges.
DUBINA, Circuit Judge:
CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF GEORGIA PURSUANT TO
ARTICLE VI, SECTION VI, PARAGRAPH IV, OF THE GEORGIA CONSTITUTION.
TO THE SUPREME COURT OF GEORGIA AND THE HONORABLE JUSTICES
THEREOF:
This case involves a dispute as to whether a Fulton County, Georgia probate court
properly appointed an administrator over the estate of Alejandro Escareno (“Escareno” or
“Plaintiff”), the deceased plaintiff in this products liability suit. The Plaintiff contends that
the Georgia probate court acted within the jurisdiction conferred by O.C.G.A. § 15-9-31,
which authorizes probate courts to grant administration of estates, when it appointed Philip
P. Grant (“Grant”) as administrator of Escareno’s estate. The district court denied the
Plaintiff’s motion to substitute Grant as a party pursuant to Fed. R. Civ. P. 25(a) on the
ground that the probate court lacked jurisdiction to appoint an administrator because
Escareno, a Mexican resident, did not have any property in Fulton County, nor did he have
a cause of action against a Fulton County defendant. See § 15-9-31.
To decide this case, we must determine the precise requirements of § 15-9-31 for the
administration of the estate of a non-resident of Georgia. Because this statute allows for
differing interpretations and there are no controlling precedents under Georgia law, we
certify the question to the Supreme Court of Georgia.
2
I. FACTUAL BACKGROUND
Escareno filed a products liability suit in the district court against Noltina Crucible
and Refractory Corp. (“Noltina Crucible”) for severe personal injuries sustained on the job
in 1990 when a crucible burst, showering him with molten zinc. Escareno later filed an
Amended Complaint adding Carl Nolte Sohne GmbH (“Carl Nolte Sohne”), a privately
owned German business, as a defendant. Escareno alleged that Carl Nolte Sohne and Noltina
Crucible manufactured the crucible that caused his injuries. Neither Noltina Crucible nor
Carl Nolte Sohne is incorporated in Georgia, has an office or place of business in Georgia,
or is registered to do business in Georgia. Escareno died in December, 1992, at which time
he was a resident of Salinas, Mexico with no property in Georgia other than his interest in
this lawsuit and the case file kept by his attorney. Escareno is survived by a son in Mexico.
After the defendants had filed motions for summary judgment, a suggestion of death
of the plaintiff was filed. The district court entered an order denying the motions for
summary judgment without prejudice and stating that the action would be dismissed under
Fed. R. Civ. P. 25(a) (“Rule 25(a)”), unless there was a substitution of parties within ninety
days of the suggestion of death.
A probate judge in Fulton County, Georgia, appointed Escareno’s counsel, Mr. Irwin
W. Stolz (“Stolz”), as temporary administrator of Escareno’s estate in an ex parte proceeding.
Subsequently, Stolz moved the district court to substitute himself as the plaintiff. The
defendants filed briefs in opposition to the motion for substitution. The district court denied
Stolz’s motion for substitution and ordered that the case be dismissed for failure to substitute
3
a proper party under Rule 25(a). The district court based this ruling on its determination that
Stolz was not properly appointed in the state court under § 15-9-31. Stolz filed a motion for
reconsideration which the district court also denied.
Escareno’s counsel appealed the district court’s decision to the Eleventh Circuit, and
a panel of this court vacated and remanded the case. Escareno v. Carl Nolte Sohne GmbH
& Co, 77 F.3d 407 (11th Cir. 1996).1 Judge Godbold, writing for the panel, determined that
the plaintiff should have another opportunity to request appointment of an administrator in
a Georgia state court which would then “address the matter, recognizing that plaintiff was
a nonresident, construe the Georgia statutes if necessary, and consider its jurisdiction.” Id.
at 412. The Eleventh Circuit did not decide the underlying question of whether the probate
court’s appointment of Stolz was proper, and the panel explicitly left the task of interpreting
§ 15-9-31 and related state cases to the Georgia courts. Id.
After the first appeal to the Eleventh Circuit, Escareno’s counsel returned to probate
court and requested the appointment of Grant as representative of Escareno’s estate.2 Carl
Nolte Sohne was not represented at this proceeding. The probate court, which apparently
was not aware of the complex procedural history of this case, appointed Grant without
1
On May 19, 1995, The Eleventh Circuit dismissed this appeal with prejudice as to
Noltina Crucible and Refractory Corporation based on a settlement. This dismissal left Carl
Nolte Sohne as the only remaining defendant in the case.
2
The mother of Escareno’s heir purportedly consented to Grant’s representation of
the estate. There was a factual issue as to whether this consent was valid, and the district
court expressed doubt as to whether it would be “sufficient to protect defendant from a later
claim by the heirs.” (R. 3-82-23 n.10).
4
addressing the legal issues that the Eleventh Circuit panel intended for the Georgia courts to
resolve. Because Carl Nolte Sohne had no involvement in this proceeding, the probate
court’s summary appointment of Grant was never opposed or appealed to a higher state court.
When Escareno’s counsel returned to the district court with a second motion to
substitute, seeking to substitute Grant as the plaintiff, the district court found itself faced with
essentially the same question it had determined in the first motion. The district court again
denied the motion to substitute Grant on the ground that he was not a “proper party” under
Rule 25(a) because he had not been appointed in accordance with the applicable Georgia
statute, § 15-9-31. The district court also dismissed the action for failure to substitute a
proper party within a reasonable time. Escareno’s counsel then filed this appeal of the
district court’s denial of the motion to substitute a party and of the order of dismissal.
II. ANALYSIS
To determine whether Grant was a “proper party” under Fed. R. Civ. P. 25(a), it was
necessary for the district court to interpret O.C.G.A. § 15-9-31 which gives probate courts
jurisdiction to grant administration of estates. Rule 25(a)(1) provides that “the court may
order substitution of the proper parties” after the death of a party. The district court agreed
with Carl Nolte Sohne that under Rule 25(a), a federal court has a duty to determine the
propriety of the appointment of an administrator seeking to be substituted as the party
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plaintiff. See Diehl v. United States, 438 F.2d 705, 709 (5th Cir. 1971)3 (explaining that if
the underlying appointment of a legal representative in state court is improper, then a Rule
25(a) motion for substitution should be denied). Section 15-9-31 of the Georgia Code
provides:
The judge of the probate court can grant administration
only on the estate of a person who was:
(1) A resident at the time of his death of the county where the
application is made; or
(2) A nonresident of the state, with property in the county where
the application is made or with a bona fide cause of action against some
person therein.
Id. (emphasis added). Because Escanero was a nonresident of Georgia at the time of his
death, this case falls under § 15-9-31(2). Thus, the central question in this case is as follows:
Under § 15-9-31(2), may a probate judge appoint an administrator based on 1) the existence
of an ongoing lawsuit brought by a foreign plaintiff against a foreign defendant in a Georgia
court, or 2) the presence of a case file in an attorney’s office in Georgia? The district court
answered this question in the negative.
A. “bona fide cause of action against some person therein”
3
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh
Circuit Court of Appeals adopted as binding precedent the decisions of the former Fifth
Circuit issued before October 1, 1981.
6
We begin our analysis by addressing what we consider to be the Plaintiff’s strongest
argument for a finding that Grant was properly appointed administrator of Escareno’s estate.
The Plaintiff submits that the district court misinterpreted the second jurisdictional basis in
§ 15-9-31(2), which requires that the deceased possess “a bona fide cause of action against
some person therein.” Much of the confusion in this case relates to this ambiguous phrase.
If this phrase means that the cause of action must be against a person located in the county,
as Carl Nolte Sohne contends, then the appointment of Grant as administrator was improper
because Escareno’s lawsuit was not against a Fulton County defendant, but against a German
company. On the other hand, if the Plaintiff is correct that this language means that the
lawsuit merely has to be pending in the county, then Grant was properly appointed. No
Georgia court has directly addressed the question of which interpretation of § 15-9-31(2) is
correct.
Plaintiff’s argument in support of interpreting this provision to require that a lawsuit
be pending in a county involves the construction of another statute, O.C.G.A. § 15-9-32,
which provides that “[w]hen a nonresident decedent has property or a cause of action in more
than one county, letters of administration may be granted in any county in which such
property or cause of action is located.” § 15-9-32 (emphasis added). This statute permits
appointment of an administrator in a county where a cause of action is pending. Plaintiff
contends that this provision clarifies the legislature’s intent that the phrase, “cause of action
against some person therein,” in § 15-9-31(2) refers to the location of the cause of action, not
the location of the person who is the defendant in that cause of action.
7
In its order denying the first motion to substitute, the district court recognized that the
statutory language of § 15-9-32 “is somewhat supportive” of the Plaintiff’s proposed
construction of the “against some person therein” language in § 15-9-31(2). Escareno v.
Noltina Crucible and Refractory Corp., 152 F.R.D. 661, 664 (N.D. Ga. 1993). The district
court determined, however, that the Plaintiff’s construction was not supported by the relevant
case law construing § 15-9-31. Id.
In Robbins v. National Bank of Georgia, 246 S.E.2d 660 (Ga. 1978), the Georgia
Supreme Court considered a challenge to the administration of a nonresident’s probate estate
in Georgia and upheld the administration. The party opposed to the administration argued
that it was not enough that the nonresident decedent owned securities held by a trustee in
Fulton County and had a pending claim against an estate located in Fulton County. Id. at
663. Robbins is distinguishable on the ground that the nonresident decedent in Robbins had
a pending cause of action against a Fulton County defendant, while Escareno’s lawsuit is
against a foreign defendant. It is nonetheless possible to draw at least one relevant inference
favoring Carl Nolte Sohne’s position from the Robbins court’s discussion of the predecessor
to § 15-9-31.4 The Robbins court specified that Fulton County was the situs of the estate
being sued. This would not have been necessary if it were sufficient for the lawsuit to have
been pending in Fulton County, and the court’s mention of this fact supports Carl Nolte
Sohne’s side of the “against some person therein” dispute.
The provision now codified at O.C.G.A. § 15-9-31 was formerly Civil Code 1910,
4
§ 4792 and Code 1933, § 24-1902. The statute’s language has not changed.
8
However, some of the language in the Robbins opinion supports the Plaintiff’s
position that the existence of a pending cause of action in a county is sufficient to warrant
administration of an estate under § 15-9-31(2). In addition to mentioning that the defendant
in Robbins was a Fulton County defendant, the Robbins court stated that the claim brought
against the estate was prosecuted in the courts of Fulton County. Id. at 663. The court went
on to explain that “[c]ases can be conceived where there is no tangible estate, but where there
is something to be done by an administrator which in contemplation of law may create an
estate, such as suing for the death of a decedent.” Id. The court stated that an administrator
should be appointed in such cases. Id. Both the Plaintiff and Carl Nolte Sohne can find
support for their conflicting positions in the Robbins opinion.
Another Georgia case, McPhail v. Barnhill, 156 S.E. 466 (Ga. Ct. App. 1931),
contains support for Carl Nolte Sohne’s contention that a cause of action must be against a
resident of the county under § 15-9-31(2). Interpreting this provision, the McPhail court
wrote that the probate court’s jurisdiction depended upon ownership of property within the
county “or the existence of a bona fide cause of action in favor of the deceased nonresident
against some person residing in the county.” 156 S.E. at 467 (emphasis added). This
language indicates that the court in McPhail read § 15-9-31(2) as requiring that the cause of
action be brought against a resident of the county, consistent with the interpretation
advocated by Carl Nolte Sohne. Significantly, however, this language is dicta because there
was no contention in McPhail that the probate judge lacked jurisdiction to appoint an
9
administrator “by reason of there being no property in that county or bona fide cause of
action against some person residing therein.” Id.
Although Robbins and McPhail lend support to Carl Nolte Sohne’s position, neither
of these cases directly addressed the question of whether § 15-9-31(2) authorizes the
appointment of an administrator of an estate based on the existence of a cause of action
against a foreign defendant in a Georgia court. Some of the language in Robbins can also be
read to support the Plaintiff’s position. In addition, we see some merit in the Plaintiff’s
argument that the language of § 15-9-32 suggests that the Georgia legislature referred to the
location of the cause of action in § 15-9-31(2) with the phrase, “against some person therein.”
Because this case involves an unsettled question of Georgia law, we would rather
certify the question of the proper interpretation of § 15-9-31(2) to the Georgia Supreme Court
than speculate as to how the Georgia courts would resolve the issue. In some of our
precedents we have said, “[w]here there is any doubt as to the application of state law, a
federal court should certify the question to the state supreme court to avoid making
unnecessary Erie ‘guesses’ and to offer the state court the opportunity to interpret or change
existing law.” Colonial Properties, Inc. v. Vogue Cleaners, Inc., 77 F.3d 384, 387 (11th Cir.
1996) (referring to Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)) (quoting Mosher v.
Speedstar Div. of AMCA Int’l, Inc., 52 F.3d 913, 916-17 (11th Cir. 1995)). We underscore,
however, the rule that certification of state law questions is a matter of discretion. See
Lehman Bros. v. Schein, 416 U.S. 386, 390-91, 94 S.Ct. 1741, 1744 (1974) (“We do not
10
suggest that where there is doubt as to local law and where the certification procedure is
available, resort to it is obligatory. . . . Its use in a given case rests in the sound discretion of
the federal court.” (emphasis added)). Moreover, while this circuit traditionally has been
less reluctant than others to certify questions of state law,5 it nonetheless has been our
practice to do so with restraint and only after the consideration of a number of factors:
[C]ertification should never be automatic or unthinking. `We
use much judgment, restraint and discretion in certifying. We
do not abdicate.’ . . . In determining whether to exercise our
discretion in favor of certification, we consider many factors.
The most important are the closeness of the question and the
existence of sufficient sources of state law . . . to allow a
principled rather than conjectural conclusion. But also to be
considered is the degree to which considerations of comity are
relevant. . . . And we must also take into account practical
limitations of the certification process. . . .
State of Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 274 (5th Cir. 1976)(citation
omitted).
We sometimes will decide a question of state law, even when there is doubt as to how
a state court would resolve the issue. See Smigiel v. Aetna Casualty & Surety Co., 785 F.2d
922, 924-25 (11th Cir. 1986)(stating that “[a]lthough we are Erie bound, we may exercise an
option to make an educated guess as to how the [state] courts would resolve this issue”). By
5
See Blue Cross and Blue Shield of Ala., Inc. v. Nielsen, 116 F.3d 1406, 1413 (11th
Circ. 1997) (noting that “[w]e, more than any other circuit, use [certification]”) (citing Jona
Goldschmidt, American Judicature Society, Certification of Questions of Law: Federalism
in Practice 28 (1995)).
11
requiring federal courts to anticipate the decisions of state courts,6 Erie jurisprudence
contemplates that federal courts will in some cases be called upon to decide unsettled issues
of state law. On many occasions this court has resolved difficult or uncertain questions of
state law without recourse to certification.7
In addition, the state courts, like their federal counterparts, are busy institutions, with
their own caseloads to manage. While we are fortunate that all three states within the
Eleventh Circuit have established certification procedures, federal litigants have no right to
insist upon certification, and this court will continue to exercise discretion and restraint in
deciding to certify questions to state courts. In this case, however, all factors considered, we
think certification is appropriate.
B. “property in the county”
In addition to advocating that “against some person therein” refers to the location of
the cause of action, not the party defendant, the Plaintiff contends that the lawsuit itself
constitutes property in Fulton County for purposes of § 15-9-31(2). The Plaintiff cites
O.C.G.A. § 44-12-20, which defines a chose in action as “personalty,” arguing that as a
chose in action, this lawsuit constitutes “property in the county” and is therefore a proper
basis for the appointment of an administrator under § 15-9-31(2).
6
See, e.g., Green v. Amerada-Hess Co., 612 F.2d 212, 214 (5th Cir. 1980)(“[W]e must
. . . decide this issue as we believe a [state] court would decide it.”).
See, e.g., Shapiro v. Associated Int’l Ins. Co., 899 F.2d 1116, 1118 (11th Cir. 1990);
7
Smigiel, 785 F.2d at 924-25 (11th Cir. 1986).
12
Contrary to the Plaintiff’s contention, the fact that a chose in action is personalty
under Georgia law supports a finding that the lawsuit is not property located in Georgia
because the situs of personalty is the owner’s domicile. In League v. Churchill, 137 S.E.
632, 632 (Ga. 1927), the Georgia Supreme Court stated that “it is generally admitted that
personalty has no fixed legal situs. It follows the domicile of the owner.” Under this rule,
because Escareno’s domicile was in Mexico at the time of his death, the situs of his interest
in the lawsuit would be Mexico, not Georgia. It therefore appears that the district court was
correct in its determination that the lawsuit, as personalty, was not property located in Fulton
County. Although we do not intend to preclude the Georgia Supreme Court from reaching
a different conclusion on this point of state law, we see little merit to the Plaintiff’s argument
that the lawsuit against Carl Nolte Sohne should be classified as property located in Fulton
County for purposes of § 15-9-31(2).8
The Plaintiff also contends that the papers contained in Escareno’s counsel’s case file
constitute property for purposes of § 15-9-31. The district court responded to this argument
by stating that “[i]f the cause of action could not be probated, then the files that make up that
8
The Plaintiff also argues that the instant litigation had an independent situs in Fulton
County. The Plaintiff half-heartedly contends that this is sufficient for purposes of obtaining
the appointment of an administrator, citing Tweed v. Houghton, 103 Ga.App. 57, 118 S.E.2d
496 (Ga. Ct. App. 1961). The plaintiff did not raise this argument before the district court
in its motion to substitute Grant as a party, and the district court did not address this
argument in its Order from which this appeal was taken. We have reviewed the Tweed case
and observe that it did not deal with § 15-9-31. Moreover, the decision to allow appointment
of an administrator over the estate of a non-resident decedent in Tweed was based on a
contractual obligation, not the possession of a cause of action. Id. at 497-99. We leave it
to the discretion of the Georgia Supreme Court whether to address this argument.
13
cause are likewise not property subject to probate, for they have no value aside from the
value of the cause of action.” Escareno v. Noltina Crucible and Refractory Corp., 172
F.R.D. 522, 530 (N.D. Ga. 1997). Again, though we tend to agree with the district court’s
ruling on this point, we leave it to the Georgia Supreme Court to make the final
determination as to whether a case file in an attorney’s office constitutes “property in the
county” for purposes of § 15-9-31(2).
III. QUESTION TO BE CERTIFIED
We respectfully certify the following question of law to the Georgia Supreme Court:
Whether the appointment of Grant as administrator of Escareno’s estate was
proper under § 15-9-31(2) based upon either the pending cause of action in
Fulton County against a foreign defendant or the presence of a case file in
Escareno’s counsel’s office.
We do not intend for this statement of the question to limit the inquiry of the Georgia
Supreme Court. The phrasing of a question certified to a state’s highest court does not
restrict that court’s consideration of any issue it finds in the case. See Colonial Properties,
Inc., 77 F.3d at 387.
To assist the Georgia Supreme Court, we hereby order that the entire record in this
case, together with the briefs of the parties, be transmitted herewith.
QUESTION CERTIFIED.
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