Alday v. Swift Transportation Co. of Arizona, LLC et al

Filing 32

ORDERED: Defendants shall hereby file a written response within FOURTEEN (14) DAYS of this order indicating whether the personal representative of Plaintiff's estate (or any other relevant non-parties) were properly served with the suggestion of death pursuant to Fed. R. Civ. P. 25(a). Signed by Senior Judge Charlene Edwards Honeywell on 5/9/2024. (AB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HUBERT ALDAY,
Plaintiff,
v.

Case No: 8:23-cv-1122-CEH-SPF

SWIFT TRANSPORTATION CO. OF
ARIZONA, LLC, SWIFT
TRANSPORTATION SERVICES,
LLC, WAL-MART
TRANSPORTATION, LLC, ELIJAH
SANTIAGO and SWIFT LEASING
CO., LLC,
Defendants.
ORDER
Plaintiff Hubert Alday filed this motor vehicle negligence lawsuit in state court
on March 21, 2023, and Defendants Swift Transportation Services, LLC and Swift
Transportation Co. of Arizona, LLC removed it to this Court. See Doc. 1.
On October 30, 2023, defense counsel filed a suggestion of Plaintiff’s death.
Doc. 22. As Magistrate Judge Sean P. Flynn noted in an order denying a motion to
withdraw filed by Plaintiff’s Counsel (Doc. 27 at 2), Federal Rule of Civil Procedure
25(a) indicates that if a party dies, a motion to substitute may be made by any party or
by the decedent’s successor or representative within ninety days. This ninety-day
period would theoretically have expired on January 29, 2024, assuming that proper
service of the suggestion of death had been effectuated.

Defendants moved to dismiss this case under Rule 25(a) (Doc. 28), and their
motion was denied for failure to comply with Middle District of Florida Local Rule
3.01(g). Doc. 30. Subsequently, Plaintiff's counsel filed a “Notice of Voluntary
Dismissal” citing Rule 25(a). Doc. 31.
Rule 25(a)(1) provides, in relevant part, that:
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. 25(a)(1).
Thus, the Rule requires the Court to dismiss a case 90 days after the filing of a
proper suggestion of death if two conditions are met. First, the suggestion of death
must be filed on the record, which it has been here. Doc. 22; McGuinnes v. Novartis
Pharmaceuticals Corp., 289 F.R.D. 360, 362 (M.D. Fla. 2013).
Whether proper service has been made, however, is not clear from the docket.
Specifically, Rule 25(a)(3) provides that the party that filed the suggestion must
properly serve the notice in accordance with the Rule in order to start the clock on
automatic dismissal of the case. Coney v. Macon-Bibb Cnty., Georgia, No. 5:19-CV00145-TES, 2021 WL 1555038, at *1 (M.D. Ga. Apr. 20, 2021); McGuinnes, 289
F.R.D. at 362. (“the party that filed the suggestion must serve nonparty successors or
representatives of the decedent with the suggestion of death, consistent with Federal
Rule of Civil Procedure 4.”); see also Fed. R. Civ. P. 25(a)(3) (requiring service of a
“statement noting death” on “nonparties as provided in Rule 4”).

2

Rule 25 does not specify which nonparties must be served, but courts generally
agree that the representatives of the deceased plaintiff's estate or successors in interest
to the claim must be served, as they are the nonparties who could prosecute the
surviving claim. See Sum v. Metro. Cas. Ins. Co., No. 8:21-cv-377-KKM-AAS, 2022 WL
1555873, at *1 (M.D. Fla. May 17, 2022); Diamond Resorts Int'l, Inc. v. US Consumer
Att'ys, P.A., No. 18-80311-CIV, 2020 WL 11423190, at *3 (S.D. Fla. Oct. 13, 2020);
Williams v. Scott, No. 07-22617-CIV, 2011 WL 541343, at *3 (S.D. Fla. Feb. 8, 2011);
see also Powell v. United States, 800 F. App'x 687, 705 (11th Cir. 2020) (per curiam)
(noting that there was no duty to serve any estate or successor where, “by every
indication[, the party] had no representatives of his estate or successors”).
Here, the suggestion of death was filed on the record on October 30, 2023, more
than ninety days ago, by Defendants. Doc. 22. Defendants made no separate filing
regarding service of the suggestion of death. In a subsequently filed motion to
withdraw, Plaintiff's attorney noted that Katherine R. Newell had been appointed as
personal representative of Plaintiff’s estate pursuant to his will. See Doc. 26. However,
neither he nor Defendants indicate whether the personal representative or any other
successors were properly served with the suggestion of death, or whether other such
successors or interested parties exist. Nor does Plaintiff’s counsel do so in his notice of
voluntary dismissal. Doc. 31.
Therefore, Defendants are hereby ORDERED to file a written response within
FOURTEEN (14) DAYS of this order indicating whether the personal representative

3

of Plaintiff’s estate (or any other relevant non-parties) were properly served with the
suggestion of death pursuant to Fed. R. Civ. P. 25(a).
DONE and ORDERED in Tampa, Florida on May 9, 2024.

Copies furnished to:
Counsel of Record
Unrepresented Parties

4