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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

DONALD R. SEILHEIMER § 

(INDEPENDENT EXECUTOR), § 

 Plaintiff, § 

v. § Civil Action No. 3:22-CV-0681-N-BH 

 § 

SOUNDVIEW HOME LOAN TRUST § 

2006-OPT2, § 

 Defendant. § Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

Before the Court for recommendation is Defendant’s 12(b)(6) Motion to Dismiss Plaintiff’s 

Complaint and Brief in Support, filed April 13, 2022 (doc. 9). Based on the relevant findings and 

applicable law, this action should be sua sponte DISMISSED without prejudice, and the 

defendant’s motion to dismiss should be DENIED as moot. 

I. BACKGROUND

On January 31, 2022, Donald R. Seilheimer, in his purported capacity “as Independent 

Executor for the Estate of Shiela O’Neal Seilheimer” (Plaintiff), filed this pro se action in state 

court against Option One Mortgage assigned the Deed of Trust to Deutsche Bank National Trust 

Company, as Trustee for Soundview Home Loan Trust 2006-OPT2, Asset-Backed Certificates, 

Series 2006-OPT2 (Defendant),2

 seeking to prevent the scheduled foreclosure sale of real property 

located at 1509 Perryton Drive, Dallas, Texas 75224 (Property). (doc. 6 at 12-16.)3 Plaintiff’s state 

1

By Special Order 3-251, this pro se case has been referred for full case management, including the 

determination of non-dispositive motions and issuance of findings of fact and recommendations on dispositive 

motions. 

2

Defendant is improperly named in the petition as “Soundview Home Loan Trust 2006-OPT2.” (See doc. 2.) 

3

Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page 

numbers at the bottom of each filing. 

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court petition alleges that a probate case has been filed and that the Property is part of “the Estate 

of Shiela Seilheimer” (Estate). (Id. at 13.) It also alleges that Defendant has no right to enforce its 

purported lien on the Property because the four-year statute of limitations to sell the Property has 

expired, and its power of sale to enforce the lien is void under Texas Civil Practice and Remedies 

Code § 16.035. (Id. at 14.) Plaintiff seeks a declaration that Defendant’s purported lien on the 

Property is void, an injunction to prevent Defendant “from taking any further actions to collect 

any amount regarding the Home Equity Note and the Deed of Trust it purportedly owns,” damages, 

reasonable fees, and costs of court. (Id. at 14-15.) 

After this lawsuit was removed to federal court, Defendant moved to dismiss the entire 

case under Rule 12(b)(6) for failure to state a claim on April 13, 2022. (doc. 9.) Plaintiff did not 

respond to the motion. 

II. SUA SPONTE DISMISSAL 

“District courts may, for appropriate reasons, dismiss cases sua sponte.” Carter v. Atwood, 

18 F.4th 494, 497 (5th Cir. 2021) (collecting cases). A court may sua sponte dismiss a plaintiff’s 

claims under Rule 12(b)(6) for failure to state a claim “as long as the procedure employed is fair;” 

this requires notice of the intent to dismiss and an opportunity to respond. See id. at 498 (citing 

Davoodi v. Austin Indep. Sch. Dist., 755 F.3d 307, 310 (5th Cir. 2014)). “Pre-dismissal notice and

opportunity to respond are not needed ‘if the plaintiff has [already] alleged his best case,” which 

includes “(1) repeatedly declar[ing] the adequacy of that complaint in ... response to [the] 

defendant’s motion to dismiss and (2) refus[ing] to file a supplemental complaint even in the face 

of a motion to dismiss.” See id. at 498 n.1 (citing Brown v. Taylor, 829 F.3d 365, 370 (5th Cir. 

2016)) (internal quotations omitted). The recommendation of a United States Magistrate Judge 

that a case be dismissed sua sponte with an opportunity for the plaintiff to object to it satisfies this 

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requirement. See Alexander v. Trump, 753 F. App’x 201, 208 (5th Cir. 2018) (citing Magouirk v. 

Phillips, 144 F.3d 348, 359 (5th Cir. 1998)). 

A. Pro Se Representation of Estate 

“In all courts of the United States the parties may plead and conduct their own cases 

personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and 

conduct causes therein.” 28 U.S.C. § 1654. Individuals who are not “licensed to practice law may 

not represent the legal interests of others” in federal court, however. Rodgers v. Lancaster Police 

& Fire Dept., 819 F.3d 205, 211 (5th Cir. 2016) (citing Weber v. Garza, 570 F.2d 511, 514 (5th 

Cir. 1978)); see also Guajardo v. Luna, 432 F.2d 1324, 1324 (5th Cir. 1970) (holding that only 

licensed lawyers may represent others in federal court). With regard to an estate, “[a] person with 

capacity under state law to represent an estate in a survival action may proceed pro se if that person 

is the only beneficiary and the estate has no creditors.” Rodgers, 819 F.3d at 211. 

Here, Plaintiff brings this pro se action in his capacity as independent executor of the 

Estate. (See doc. 6 at 12.) As discussed, a pro se plaintiff is generally barred from prosecuting a 

civil suit on behalf of others. See Guajardo, 432 F.2d at 1324. Although his state court petition 

alleges that he is the independent executor of the Estate, it does not allege that he is the Estate’s 

sole beneficiary and that it has no creditors. See Rodgers, 819 F.3d at 211; see also Chapman v. 

Baylor Univ. Med. Ctr., No. 3:12-CV-2117-D BH, 2012 WL 6866935, at *2 (N.D. Tex. Oct. 1, 

2012), adopted by 2013 WL 171908 (N.D. Tex. Jan. 16, 2013) (“Plaintiff may not bring this pro 

se case on behalf of her deceased mother’s estate.”); City Bank v. Compass Bank, No. EP-09-CV96-KC, 2009 WL 4775104, at *1 (W.D. Tex. Dec. 10, 2009) (“Individuals appearing in 

representative capacities, such as executors of estates, may not proceed in litigation on a pro se

basis, especially when the estate or entity being represented has third party beneficiaries or 

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creditors.”). In Rathbone v. Bank of New York Mellon for RML Tr. 2013-2, No. 4:17-CV-1828, 

2018 WL 615084 (S.D. Tex. Jan. 9, 2018), adopted sub nom. by 2018 WL 588363 (S.D. Tex. Jan. 

29, 2018), a pro se plaintiff sued on behalf of an estate to void the note and deed of trust issued to 

the deceased and to invalidate the creditor’s lien on the deceased’s property. Citing Rodgers, the 

court found that the plaintiff could not bring a pro se case on behalf of the estate because other 

heirs and at least one creditor existed, and it dismissed the estate’s claims without prejudice. Id. at 

*3 (citing 819 F.3d at 210). 

Because it does not appear that Plaintiff is licensed to practice law, and his petition does 

not allege that he is the Estate’s sole beneficiary and that it has no creditors, this action should be 

sua sponte dismissed without prejudice, and Defendant’s motion to dismiss should be denied as 

moot. See Rodgers, 819 F.3d at 210; Rathbone, 2018 WL 615084, at *3; see also Shamsid-Deen 

v. Texas, No. 3:13-CV-3414-L, 2014 WL 1917579, at *2 (N.D. Tex. May 13, 2014) (“To the extent 

that Plaintiff seeks to pursue claims on behalf of ... the estate pro se, those claims should be 

dismissed without prejudice.”). 

B. Opportunity to Amend or Retain Counsel 

 Notwithstanding a pro se party’s failure to plead sufficient facts, the Fifth Circuit is 

inclined to give pro se plaintiffs several opportunities to state a claim upon which relief can be 

granted. See Scott v. Byrnes, No. 3:07-CV-1975-D, 2008 WL 398314, at *1 (N.D. Tex. Feb. 13,

2008); Sims v. Tester, No. 3:00-CV-0863-D, 2001 WL 627600, at *2 (N.D. Tex. Feb. 13, 2001). 

Courts therefore typically allow pro se plaintiffs to amend their complaints when the action is to 

be dismissed pursuant to a court order. See Robinette v. Merrill Lynch, Pierce, Fenner & Smith, 

Inc., No. 3:96-CV-2923-D, 2004 WL 789870, at *2 (N.D. Tex. Apr. 12, 2004); Sims, 2001 WL 

627600, at *2. A pro se plaintiff may also obtain leave to amend his complaint in response to a 

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recommended dismissal. See Swanson v. Aegis Commc’ns Grp., Inc., No. 3:09-CV-0041-D, 2010 

WL 26459, at *1 (N.D. Tex. Jan. 5, 2010). Nonetheless, courts may appropriately dismiss an action 

with prejudice without giving an opportunity to amend when the plaintiff fails to respond to a 

motion to dismiss after being specifically invited to do so by the court and the plaintiff has had 

ample opportunity to amend the complaint. Rodriguez v. United States, 66 F.3d 95, 97 (5th Cir. 

1995). Dismissal with prejudice is also appropriate if a court finds that the plaintiff has alleged his 

or her best case. Jones v. Greninger, 188 F.3d 322, 327 (5th Cir. 1999). 

Based on the pleadings, Plaintiff cannot represent the Estate in this action without legal 

representation. He should be offered an opportunity to retain legal counsel for this action to 

proceed on the Estate’s behalf, or to file an amended complaint that alleges facts showing that he 

should be allowed to represent the Estate without counsel, including whether he is its only 

beneficiary and whether it has no creditors. See Rodgers, 819 F.3d at 211. 

III. RECOMMENDATION 

 Because Plaintiff may not prosecute this action on behalf of the Estate without legal 

counsel, it should be sua sponte DISMISSED without prejudice, unless he files an amended 

complaint alleging facts supporting why he should be allowed to proceed pro se in this action, or 

licensed counsel enters an appearance on the Estate’s behalf, within the 14 days allotted for 

objections to this recommendation, or some other deadline set by the Court. If Plaintiff timely files 

an amended complaint, the action should be allowed to proceed on the amended complaint. 

Defendant’s motion to dismiss should be DENIED as moot. 

 

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SO RECOMMENDED on this 3rd day of October, 2022. 

INSTRUCTIONS FOR SERVICE AND 

NOTICE OF RIGHT TO APPEAL/OBJECT 

 A copy of these findings, conclusions and recommendation shall be served on all parties in 

the manner provided by law. Any party who objects to any part of these findings, conclusions and 

recommendation must file specific written objections within 14 days after being served with a 

copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must 

identify the specific finding or recommendation to which objection is made, state the basis for the 

objection, and specify the place in the magistrate judge’s findings, conclusions and 

recommendation where the disputed determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the magistrate judge is not specific. Failure to file 

specific written objections will bar the aggrieved party from appealing the factual findings and 

legal conclusions of the magistrate judge that are accepted or adopted by the district court, except 

upon grounds of plain error. See Douglass v. United Servs. Automobile Ass’n, 79 F.3d 1415, 1417 

(5th Cir. 1996). 

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