Warren v. Alabama Department of Transportation et al
MEMORANDUM OPINION-re:R&R 22 . The court hereby ADOPTS the report of the Magistrate Judge annd ACCEPTS the recommendations. Signed by Judge R David Proctor on 9/27/2013. (AVC)
2013 Sep-27 PM 12:20
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
LOREN WARREN, AS
ADMINISTRATOR OF THE
ESTATE OF RONNIE WARREN,
ALABAMA DEPARTMENT OF
TRANSPORTATION, et al.,
Case No. 4:10-cv-02435-RDP
On October 10, 2012, the Magistrate Judge’s Report and Recommendation was entered and
the parties were allowed therein fourteen (14) days in which to file objections to the
recommendations made by the Magistrate Judge. On October 26, 2012, after obtaining an extension
of time, Plaintiff filed objections to the Magistrate Judge’s Report and Recommendation.
Defendants filed a response to Plaintiff’s objections on November 6, 2012.
After careful consideration of the record in this case, the Magistrate Judge’s Report and
Recommendation, Plaintiff’s objections and Defendants’ response to the objections, the court hereby
ADOPTS the report of the Magistrate Judge. The court further ACCEPTS the recommendations
of the Magistrate Judge that the motion to dismiss filed by Defendants be granted and this action
dismissed with prejudice.
The Magistrate Judge’s opinion is well reasoned and reaches the correct result. The court
notes the following in adopting it.
Ronnie Warren died in January 2010. After his death, on August 8, 2010, he received a
Notice of Right to Sue from the EEOC. The complaint in this action was filed on September 9, 2010
by the "Estate of Ronnie Warren."
In his Report & Recommendation, Magistrate Judge Davis relied on Alabama Code §
43-2-833(c) for the proposition that "only the decedent's personal representative has specific
authority to file and prosecute lawsuits on behalf of a decedent's estate." That is, a claim survives
only in favor of the decedent's personal representative, and no one else. Here, an administrator was
not appointed to administer the estate until February 18, 2011. No efforts were made to appoint an
administrator ad litem within the period of the statute of limitations.
Judge Davis considered the application of Federal Rule of Civil Procedure 25 and found that
rule only permits relation back when the death is after the action has commenced. Plaintiffs argue
that Loren Warren has been duly appointed as the legal representative of the Estate. Loren Warren
has from its inception been the person who filed and prosecuted the suit. Plaintiffs argue that Judge
Davis failed to consider the effect of Alabama Code § 43-2-831, which states that "the powers of a
personal representative relate back in time to give acts by the person appointed which are beneficial
to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to
appointment, a person named personal representative in a will may carry out written instructions of
the decedent . . . [and] may ratify and accept acts on behalf of the estate done by others where the
acts would have been proper for a personal representative."1 Plaintiff's argument is off the mark.
Here, although the Estate purports to have filed suit, that entity did not exist at the time the
suit was filed. In fact, the Estate could not bring the suit, as it was not a legal entity capable of
bringing suit. In re Eldridge, 348 B.R. 834 (Bkrptcy. N. D. Ala. 2006). Nothing at all was filed in
probate court at the time the suit was filed (and Loren Warren did not seek to be the Estate's personal
representative for more than five months after the lawsuit in this court had been filed). Had the suit
been brought in the name of the Administrator of the Estate of Ronnie Warren, in that event the
administrator could have sought to be named once the appointment was accomplished by the probate
The bottom line is this: substitution and relation back concepts are not relevant to a suit that
was a nullity in the first place.
order in conformity with this Memorandum Opinion will be entered
The court’s research has only uncovered three cases which discuss this statute cited by Plaintiff.
Ogle v. Gordon, 706 So. 2d 707 (Ala. 1997), is distinguishable because the decedent’s husband filed for
letters of administration on the same day he filed the lawsuit. Wood v. Wayman, 47 So. 2d 1212 (Ala. 2010)
is on point because as the Alabama Supreme Court determined Wayman was not a personal representative
appointed by the probate court when she filed the action or at the expiration of the statutory two-year period
for filing a wrongful death action, the trial court erred in denying the motion to dismiss the action. In Joe
v. Joe, 891 So. 2d 879 (Ala. 2004), the attorney for a wife filed a writ of garnishment before the wife passed
away, and was thereafter appointed administrator of the estate. None of these cases counsel against Judge
DONE and ORDERED this
day of September, 2013.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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