Commercial Litigation and Arbitration

Judicial Notice of Internet Evidence — Obituary Posted on Funeral Home Website Properly Noticed, Like Obituary Appearing in Newspaper

Shaut v. Sec’y of Dep’t of HHS, 2014 U.S. Dist. LEXIS 176591 (N.D.N.Y. Dec. 22, 2014):

On July 23, 2014, pro se Plaintiff Anna M. Shaut filed a complaint against the United States Department of Health and Human Services ("HHS") seeking judicial review, pursuant to 42 U.S.C. § 1395ff(b), of a May 22, 2014, decision of the Medicare Appeals Council ("Appeals Council"). (Dkt. No. 1.) The complaint and Plaintiff's second application to proceed in forma pauperis were sent to the Court for review. (Dkt. Nos. 1 and 2.) The Court granted Plaintiff's second application to proceed in forma pauperis in an Order dated October 28, 2014. (Dkt. No. 7.) However, the Court concluded that there was an impediment to going forward with the initial review of the Complaint pursuant to 28 U.S.C. § 1915(e). Id. at 2-3. The Appeals Council's decision on which review is sought by Plaintiff affirmed the determination of an administrative law judge ("ALJ"), who had upheld a demand by Medicare on Plaintiff's mother, Medicare beneficiary, Lydia Grzesiak ("Grzesiak"), [*2]  for repayment of a $29,196.92 Medicare lien. (Dkt. No. 1 at 3, 11-16.) Grzesiak had made the repayment, and she was found to have made no showing that she was entitled to a waiver of recovery under Section 1870(c) of the Social Security Act. Id. at 15.

Plaintiff pursued the appeal to the Appeals Council on behalf of Grzesiak. Id. at 12. The sole allegation in Plaintiff's Complaint, to which the Notice of Decision of Medicare Appeals Council and Decision are attached, was "We want to be reimbursed the money that was paid to Medicare by my mother." Id. at 3. The Complaint did not identify the person or persons constituting "we." Id. However, the Court took judicial notice of Grzesiak's obituary, indicating that she died on November 22, 2012, and was survived by a number of children, including Plaintiff.2 (Dkt. No. 7 at 3 n.2.) Although Plaintiff has the right to act as her counsel, see 28 U.S.C. § 1654 (1982), "[a] person who has not been admitted to the practice of law may not represent anyone other than [herself]." Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010). Even if Plaintiff had sued as administrator or executor of her mother's estate, she could not have proceeded pro se if the estate has beneficiaries or creditors other than her. See Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997). In Guest, the Second Circuit held that the administrator and sole beneficiary of an estate with no creditors may appear pro se on behalf of the estate. Id. at 21. Plaintiff did not sue as administrator or executor of Grzesiak's estate in her initial Complaint, nor did she allege that she is the sole beneficiary of her mother's estate and that there are no creditors. To the contrary, Plaintiff alleged that she was pursuing her late mother's Medicare claim, which presumably would be a part of her mother's estate, not only on her own behalf, but on behalf of others as well. (Dkt. No. 1 at 3.)

2 See!/Obituary (most [*3]  recent visit December 18, 2014); see also Wilson v. Gordon & Wong Law Group, P.C., No. 2:13-cv-00609-MCE-KJN, 2013 WL 6858975, 2013 U.S. Dist. LEXIS 180366, at *11-12 (E.D. Cal. Dec. 24, 2013) (taking judicial notice of an obituary appearing in a newspaper); Magnoni v. Smith & Laquericia, LLP, 701 F. Supp. 2d 497, 501 (S.D.N.Y. 2010) (court generally has discretion to take judicial notice of internet materials), aff'd, 483 F. App'x 613 (2d Cir. 2012).


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