                                                                  [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



                                                 5
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.




                                              14
