Hopson v. Beebe et al

Filing 74

ORDER denying PCSSD's 51 Motion to Dismiss based on untimely substitution; granting Dr. Kimbrell's 53 Motion to Dismiss; granting Dr. Kimbrell's 63 Motion to Dismiss Dr. Hopson's remaining procedural-due-process claim a gainst him with prejudice; dismissing Dr. Kimbrell as a defendant; and granting 60 Motion to Substitute Patricia Hopson as Executrix for Charles Hopson as plaintiff. Patricia Hopson added. The Court requests the Honorable Joe J. Volpe to hold a settlement conference soon. Signed by Judge D. P. Marshall Jr. on 6/20/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PLAINTIFF

DR. CHARLES HOPSON, Ph.D.

v.

No. 4:11-cv-608-DPM

DR. TOM KIMBRELL, in his official capacity
as Commissioner, Arkansas Department
of Education; and PULASKI COUNTY
SPECIAL SCHOOL DISTRICT

DEFENDANTS

ORDER
In September 2012, the Court dismissed most of Dr. Hopson's claims.
NQ 45.

Dr. Hopson died in October. In November, Dr. Kimbrell filed a

suggestion of death on the record. NQ 49. The ninety-day substitution
window established by Rule 25 closed with no substitution motion. With
important exceptions, the Rule provides that the claim "must be dismissed"
in that circumstance. In late April 2013, Patricia Hopson, Dr. Hopson's
widow, moved to substitute herself as plaintiff. Should the Court dismiss Dr.
Hopson's complaint, or grant his widow's untimely request to proceed with
what remains of this case on the estate's behalf? Dr. Kimbrell opposes
substitution, though he argues that it is immaterial to him whether the case
goes forward because the only claim remaining against him was extinguished

with Dr. Hopson's death. Ng 63. Is this case over as to Dr. Kimbrell no matter
what?

1. Survival. In September 2012, the Court dismissed all Dr. Hopson's
constitutional claims except his claim that Dr. Kimbrell denied him
procedural due process when Dr. Kimbrell ordered the Pulaski County
Special School District not to honor the contract's buyout clause. NQ 45.
Sovereign immunity barred damages.

Dr. Kimbrell's plenary removal

authority under the fiscal-distress statutes precluded injunctive relief. NQ 45
at 16. But the Court left open the possibility that Dr. Hopson could receive a

declaration that Dr. Kimbrell violated his constitutional rights. Ibid.
Dr. Kimbrell now says that Dr. Hopson's death eliminated that
possibility as a matter of law. The Court agrees. State law determines
whether a cause of action for federal civil rights violations survives the
plaintiff's death.

Robertson v. Wegman, 436 U.S. 584, 588-90 (1978).

In

Arkansas, actions to recover for dignitary injuries-slander, libel, and
malicious prosecution, for example- do not survive. Parkerson v. Carrouth,
782F.2d 1449,1455 (8thCir.1986). Dr. Hopson's claim for a declaration is just
such an action. Indeed, vindication for Dr. Hopson, and the attorney fees

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incurred to secure that vindication, are all Mrs. Hopson could hope to achieve
here. Compare malicious prosecution and invasion-of-privacy claims, which
do not survive even though in the usual case they could result in a damage
award to the estate. The constitutional claim against Dr. Kimbrell for this
alleged injury to the late Dr. Hopson, an intangible matter, must be dismissed
with prejudice.
Dr. Hopson's quasi-contract claim against the Pulaski County Special
School District survives. If the claim is considered as a matter of contract, Dr.
Hopson's death is legally immaterial. McDonald v. Pettus, 337 Ark. 265,278,
988 S.W.2d 9, 16 (1998); NEWBERN, WATKINS & MARSHALL, 2 ARKANSAS
PRACTICE SERIES, CIVIL PRACTICE AND PROCEDURE§ 7:11 at 192-193, n. 3 (5th
ed. 2010). To the extent the claim is beyond the contract, the survival statute
embraces and preserves it. ARK. CODE ANN.§ 16-62-101(a)(1).
2. Substitution. The remaining motions concern whether Dr. Hopson's
buyout-related claim against the PCSSD must be dismissed under Federal
Rule of Civil Procedure 25(a) because no plaintiff was substituted in the 90
days the Rules allow. Dr. Kimbrell and PCSSD move to dismiss.

Dr.

Hopson's lawyer opposes with several arguments: the District didn't serve

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its own suggestion of death; Dr. Kimbrell's suggestion was improperly served
because Dr. Hopson's lawyer did not represent the estate; and the failure to
substitute a party resulted from excusable neglect. But Dr. Hopson's lawyer
says that if the Court does dismiss, it should do so without prejudice.
Any party or a nonparty may file a suggestion of death to start the Rule
25(a) clock running, Unicorn Tales, Inc. v. Banerjee,138 F.3d 467,469-70 (2d Cir.
1998), so the first argument fails. But counsel is right that the suggestion of
death must be filed and served on the parties. And the consensus is that the
suggestion must be served on interested nonparties too- with one wrinkle:
The suggestion need not be served on nonparties who are not ascertainable
to the defendant when he files the suggestion. George v. United States, 208
F.R.D. 29, 32 (D. Conn. 2001); see generally Atkins v. City of Chicago, 547 F.3d
869 (7th Cir. 2008) (Posner, J.). The timing of the probate filings shows that
Dr. Kimbrell could not have served the suggestion on Dr. Hopson's estate in
November 2012 because no personal representative had yet been appointed.
NQ 55 at 2. In the circumstances, service on Dr. Hopson's lawyer was proper.

So the substitution issue comes down to whether Patricia Hopson's
tardiness was

~~because

of excusable neglect." FED. R. CIV. P. 6(b)(1)(B). A

timeline of events in this case and in the probate case is helpful.
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• 9 October 2012

Dr. Charles Hopson died.

• 9 November 2012

Suggestion of death filed.

• 11 January 2013

Mrs. Hopson petitioned the probate division
of the Nevada County Circuit Court to open
an estate for Dr. Hopson and for appointment
as his administratrix. Ng 69-1 at 1.

• 6 March 2013

Mrs. Hopson filed Dr. Hopson's will in the
Circuit Court and petitioned for appointment
as Dr. Hopson's executrix. NQ 69-1 at 1.

• 21 March 2013

The Circuit Court, sitting in the probate
division, opened the estate and appointed
Mrs. Hopson executrix. NQ 59-1.

• 11 February 2013

Deadline for filing motion for substitution.*

• 1 April 2013

The Circuit Clerk filed the appointment order.
NQ 69-1 at 1.

• 29 April 2013

Mrs. Hopson moved in this Court to be
substituted as plaintiff. Ng 60.

Mrs. Hopson's motion to substitute was 77 days late. FED. R. Crv. P.
25(a)(l). The Court concludes part of the delay was beyond Mrs. Hopson's
control, and that her failure to timely file a motion to substitute was because
of excusable neglect. Kaubisch v. Weber, 408 F.3d 540,542 (8th Cir. 2005). Mrs.
Hopson petitioned to be appointed as Dr. Hopson's personal representative
• Rule 25 gives 90 days after the suggestion is served to file the
motion to substitute. FED. R. Crv. P. 25(a)(l). Kimbrell served the
suggestion via the CM/ECF system, which extended that period by 3 days.
FED. R. Crv. P. 6(d). February lOth was a Sunday, so the deadline was
Monday, February 11th. FED. R. Crv. P. 6(a)(l)(C).
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in early January 2013.

In light of the difficult financial and personal

circumstances recited in Mrs. Hopson's reply, NQ 69, including uncertainty
about where to probate her husband's estate, the Court cannot say that the
approximately two-month delay between the suggestion of death and her
petition to open the estate was unreasonable. The Nevada County Circuit
Court did not appoint her until early April2013. The almost four months it
took to get action from the Circuit Court on the petition to open the estate is
an unusually long time. Dividing responsibility for this delay between
counsel and an obviously busy and distant Court, reduces the tardiness
attributable to Mrs. Hopson. The Circuit Court's workload is a circumstance
beyond a litigant's control. Before appointment, she would not have been a
proper plaintiff here. There is no suggestion that Mrs. Hopson was acting
other than in good faith. Neither PCSSD nor Dr. Kimbrell has shown any
prejudice from the delay. The practical result of a substitution defect would
be (everyone agrees) dismissal without prejudice of the one remaining claim:
the quasi-contract claim against PCSSD. That step would likely lead only to
starting the one part left of this case over in a state court unfamiliar with the
dispute. Neither judicial economy nor the parties would be well served. The

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Court concludes that granting the untimely motion to substitute achieves
equity and common sense, taking into account all the relevant circumstances.
Pioneer Investment Services v. Brunswick Associates Ltd. Partnership,507V.S. 380,

395 (1993); Sugarbaker v. SSM Health Care, 187 F.3d 853, 856 (8th Cir. 1999).

* * *
The PCSSD's motion to adopt Dr. Kimbrell's motion to dismiss, NQ 53,
is granted. That motion for dismissal based on untimely substitution, NQ 51,
is denied. Patricia Hopson's motion, as executrix of Dr. Hopson's estate, to
be substituted as plaintiff, NQ 60, is granted. The Court directs the Clerk to
adjust the docket accordingly. Dr. Kimbrell's motion to dismiss Dr. Hopson's
remaining procedural-due-process claim against him, NQ 63, is granted. That
claim is dismissed with prejudice. Dr. Kimbrell is dismissed as a defendant.
The Court appreciates the parties' recent status reports. NQ 71, 72 & 73.
PCSSD and Mrs. Hopson both say they're open to settlement discussions. The
Court therefore requests the Honorable Joe J. Volpe to hold a settlement
conference soon. The parties should also proceed apace with discovery,
motions, and trial preparation because the deadlines are imminent. NQ 47.

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So Ordered.

D.P. Marshall Jrf
United States District Judge
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