Dillman v. JP Morgan Chase Bank, N.A.
Order STRIKING 51 Suggestion of Death filed by Marion B. Dillman as set out. Signed by Judge Kristi K. DuBose on 5/29/2012. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MARION B. DILLMAN, on behalf of
herself and all others similarly situated,
JP MORGAN CHASE BANK, N.A.,
CIVIL ACTION NO. 11-0102-KD-M
This action is before the Court on the suggestion of death of Marion B. Dillman pursuant
to Rule 25(a)(1) of the Federal Rules of Civil Procedure (doc. 51). Upon consideration and for
the reasons set forth herein, the suggestion is stricken.
Rule 25(a)(1) provides as follows:
If a party dies and the claim is not extinguished, the court may order substitution
of the proper party. A motion for substitution may be made by any party or by the
decedent's successor or representative. If the motion is not made within 90 days
after service of a statement noting the death, the action by or against the decedent
must be dismissed.
Fed. R. Civ. P. Rule 25(a)(1). Under the Rule, serving a “statement noting the death”, i.e., a
suggestion of death, triggers a ninety (90) day period during which a motion for substitution
should be filed. The Rule does not specifically identify who has authority to serve the statement,
but does state that a motion for substitution may be made by a party or by the decedent’s
successor or representative. At least one district court has interpreted this Rule to render a
suggestion of death as ineffective unless it was filed and served by a party or a successor or
representative of the decedent, and not effective if filed by the deceased plaintiff’s counsel. The
district court explained as follows:
The statement of death filed by Plaintiff's counsel was not filed on the record by
one having authority to do so. At the time it was filed Plaintiff's counsel
represented the decedent Arthur Schmidt and had not yet been retained by Dennis
Schmidt the personal representative.
Filing a suggestion of death on the record has a very narrow role-it commences
the 90 day period within which a motion for substitution must be filed. [ ] As
such, it serves the adversarial function of expediting the substitution of deceased
parties. “In practice, it is not unusual for a defendant to suggest death upon the
record to impose upon the plaintiff's side the obligation to move for the
substitution of a party, as a tactical maneuver of an adversary premised upon
expediting the action or getting it dismissed.” [ ] On the other hand, it would be
highly unusual for a representative of a deceased plaintiff to file a suggestion of
death since doing so is not a prerequisite to filing a motion for substitution and
would otherwise be contrary to the interests of the deceased party's estate. [ ]
Accordingly, because the act of filing a statement of death on the record has the
potential to have a dispositive impact on the underlying litigation, only statements
of death filed by persons acting with authority should be given effect under Rule
While Rule 25(a) does not explicitly specify who may properly serve the
suggestion of death, courts have construed the rule so as to allow the suggestion
to be filed by any of the same persons who are permitted to move for substitution.
[ ] Thus, a suggestion of death is ineffective under Rule 25(a) unless it is filed by
either a party, or by a representative of the deceased party. [ ]
Schmidt v. Merrill Lynch Trust Co., 2008 WL 2694891, 2 (M.D. Fla., 2008) (footnotes omitted)
(noting 3B Moore’s Federal Practice § 25.13).
Earl Underwood filed the suggestion of death as counsel for plaintiff Dillman. He did not
indicate whether he has been retained by a successor or representative of Dillman, the deceased
party. He has not filed a motion for substitution on behalf of a successor or representative.
Because the Court is uncertain as to whether Underwood as counsel for Dillman has authority to
file and serve1 the suggestion of death, it is hereby stricken.
DONE and ORDERED this the 29th day of May, 2012.
s/Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
Under Rule 25(a)(3), service of a statement noting death must be served upon a party
pursuant to Rule 5 and on non-parties such as the decedent’s successor or representative pursuant
to Rule 4. The certificate of service on the suggestion of death does not indicate service upon a
non-party pursuant to Rule 4. Hence, there is nothing before the Court to indicate whether
Underwood served the suggestion of death upon Dillman’s successor or representative.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?