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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

ADELINE S. GREENWELL,

NO. CIV. S 04-2205 MCE GGH

Plaintiff,

v. ORDER

RONALD STREMEL GREENWELL, an

individual, RANDEE J. BRADY,

an individual; CARLA ROBBINS

LEWIS, an individual,

Defendant.

----oo0oo----

The present action, commenced on October 18, 2004 by Adeline

S. Greenwell (“Adeline”), seeks an accounting for the Ralph A.

Greenwell and Adeline S. Greenwell Trust (“Trust”), created on or

about November 20, 1987. Adeline further seeks reimbursement for

funds allegedly misappropriated from the Trust, and goes on to

assert claims for financial abuse and tortious conversion against

her son, Defendant Ronald S. Greenwell.

Adeline died on June 29, 2005. Now before the Court is a

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All further references to “Rule” or “Rules” are to the 1

Federal Rules of Civil Procedure unless otherwise noted.

While Rule 17(b) indicates that the capacity of an 2

individual to sue is generally determined by the law of that

individual’s domicile, and while Coral Lou is apparently an

Arizona resident, both she and the trust company seek

substitution in their representative capacities as successor

trustees. According to the Rule, that triggers analysis under

the residual portion of Rule 17(b), which applies, “in all other

cases”, the law of the state in which the district court is held.

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motion filed on behalf of Adeline’s daughter, Coral Lou GlennSehara (“Coral Lou”). Coral Lou asks, in the wake of her

mother’s death, that she and the Marshall & Ilsley Trust Company

be substituted as Plaintiffs in this action pursuant to Federal

Rule of Civil Procedure 25(a). Coral Lou argues that both she 1

and the trust company qualify as successors in interest, and can

be substituted as parties on that basis, because of a February

25, 2005 Amendment to the Greenwell Trust. That Amendment

purports to appoint Coral Lou and the trust company as trustees

upon Adeline’s death.

Rule 25(a) authorizes the court to order substitution of

parties, as appropriate, when one party dies and leaves

unextinguished claims in a pending proceeding. In addition, Rule

17(b) provides that the capacity to sue, in a case like that now

before the Court, will be determined by the law of the state in 2

which the district court sits. The parties do not dispute that

California law applies here to assess the propriety of

substitution.

Coral Lou and the trust company rest their entire argument

on the propriety of the aforestated February 25, 2005 Trust

Amendment. The propriety of that Amendment, however, is in

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dispute. Prior to 2005, Coral Lou stood to inherit one-eighth of

twenty-five percent, or approximately 3.125 percent, of the

remainder Trust interest. That distribution changed after

Adeline moved to Arizona to live with Coral Lou. 

According to pertinent portions of Adeline’s medical records

attached as Exhibit 3 to the present motion, Adeline was

diagnosed at age 90 as suffering from Alzheimer’s-type dementia,

along with major depression, on November 23, 2004 by psychologist

Steven Savlov, Ph.D. Dr. Savlov noted a “definite decline in

[Adeline’s] cognitive and memory functioning” since an earlier

neuropsychological assessment done a little more than a year

earlier, on July 15, 2003, by Robert A. Allen, Ph.D. 

Nonetheless, just two months later, Adeline executed the abovedescribed Amendment naming Coral Lou and the trust company as

successor trustees. (See Exhibit “7" to the moving papers). 

Thereafter, on April 28, 2005, Adeline executed yet another

Amendment purporting to change Coral Lou’s remainder trust

interest from 3.125 percent to 95.5 percent, and decreasing the

interest of her three siblings from 25 percent each to 1.5

percent. (See Opposition, Exhibit “B”). Adeline died soon

afterwards, on June 29, 2005. Her death certificate indicates

the immediate cause of death as “Dementia- Alzheimer’s Type”. 

(See Exhibit “1" to the moving papers).

Under California law, upon the death of a party, a court in

which an action has been earlier commenced “may make any order

concerning parties that is appropriate to ensure proper

administration of justice in the case....” Cal. Code Civ. P.

377.33. Here, in exercising that discretion, the Court

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Because oral argument would not be of material assistance, 3

this matter was deemed suitable for decision without oral

argument. E.D. Local Rule 78-230(h).

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determines that it would be wholly inappropriate to permit Coral

Lou, and the trust company she is alleged to have selected, to

continue to prosecute a lawsuit against her siblings on the basis

of Trust Amendments executed under the questionable circumstances

enumerated above. The very documents presented in support of

this Motion to Substitute suggest that Adeline was mentally

compromised by Alzheimer’s disease at the time she is alleged to

have amended the terms of the Trust. Defendants suggest that the

Trust Amendments at issue were the result of Coral Lou’s undue

influence. They go on to allege that a conflict of interest

would exist if Coral Lou were appointed as the representative

plaintiff in this lawsuit under those circumstances, and assert

that her appointment could result in a miscarriage of justice in

contravention of California Code of Civil Procedure 377.33. The

Court agrees.

The Motion for Substitution of Parties is consequently

DENIED. The remainder beneficiaries of the Greenwell Trust, to 3

wit, Coral Lou and her siblings, Defendants Ronald S. Greenwell

and Carla Robbins, as well as Randee J. Brady, are directed to

jointly propose a neutral party to serve as the representative

plaintiff in this matter not later than thirty (30) days

following the date of this Order. Said neutral party may not

include any potential beneficiary of the Trust, either in its

pre-2005 format or under the terms that presently are claimed to

exist. If no such mutually acceptable candidate is proposed to

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the Court within said period, the Court will select and appoint

an independent fiduciary (without further input from the

remainder beneficiaries) to serve as plaintiff, and will direct

the Trust to pay for the services of the fiduciary serving in

that capacity.

IT IS SO ORDERED.

DATED: November 30, 2005

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

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