Flatness et al v. Burnett et al

Filing 85

ORDER denying 75 Defendant's Motion for Summary Judgment; granting Plaintiffs' 80 , 84 Motions for Extension of Time to Amend Complaint and 81 Motion to Amend Complaint with Substitution of Party; and directing Plaintiffs to conventionally file the amended complaint substituting the appropriate new party by 5 p.m., Thursday, 8/3/2017. Signed by Judge Billy Roy Wilson on 7/27/2017. (mef)

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

BILL FLATNESS, et al.

PLAINTIFFS
4:15-CV-00329-BRW

GARY BURNETT, Individually and
in his Official Capacity as Sheriff of
Prairie County, Arkansas, et al.

DEFENDANTS
ORDER

Pending is Defendant’s Motion for Summary Judgment (Doc. No. 75). Plaintiffs have
responded.1 Also pending are Plaintiffs’ Motions for Extension of Time to Amend Complaint
(Doc. No. 80, 84) and Motion to Amend Complaint with Substitution of Party (Doc. No. 81).
I.

BACKGROUND
Plaintiff Bill Flatness died on February 27, 2017. On March 14, 2017, Defendant Bobby

Derden filed a Notice of Suggestion of Death.2 On June 29, 2017, Defendant Derden filed a
Motion for Summary Judgment because a motion for substitution had not been made within 90
days.3
II.

DISCUSSION
Federal Rule of Civil Procedure 25(a) provides that if a party dies and a motion for

substitution is not made within 90 days after the notice of suggestion of death is served, “the
action shall be dismissed as to the deceased party.” Under the rule, Plaintiff had until Monday,
June 12, 2017 to file the motion. Plaintiffs concede that they did not make the deadline but note

1

Doc. No. 83.

2

Doc. No. 71.

3

Doc. No. 76.
1

that it took “some time to find the proper person to be the Administratrix of the Estate of Bill
Flatness, and file the probate petition.”4 Federal Rule of Civil Procedure 6(b) permits an
extension of time – when made after the original deadline – if there is excusable neglect.
In this case, there was no neglect, but, rather a reasonable delay because of the probate
process. Though the motions for extension of time should have been made before the June 12
deadline, the short delay does not prejudice Defendants. Additionally, Plaintiffs now know the
appropriate party to substitute, which they would not have known by the deadline – the estate
was opened on July 24, 2017 which named Bill Flatness’s sister, Angela Barnhill, as
Administratrix.5 There is also no prejudice because there is another active plaintiff, so the case
would not have been dismissed. Finally, Defendants counsel does not object to the Motions for
Extension of Time.
CONCLUSION
Based on the findings of fact and conclusions of law above, Defendant’s Motion for
Summary Judgment (Doc. No. 75) is DENIED. Plaintiffs’ Motions for Extension of Time to
Amend Complaint (Doc. No. 80, 84) and Motion to Amend Complaint with Substitution of Party
(Doc. No. 81) are GRANTED. Plaintiffs are directed to conventionally file the amended
complaint, substituting the appropriate new party by 5 p.m., Thursday, August 3, 2017.
IT IS SO ORDERED this 27th day of July, 2017.

/s/ Billy Roy Wilson
UNITED STATES DISTRICT JUDGE

4

Doc. No. 80.

5

Doc. No. 82.
2