Marx v. Forsyth County Sheriff's Office et al

Filing 59

ORDER DENYING 54 MOTION to Allow Plaintiff's Estate to go forward with this instant complaint on behalf of Dennis Marx, having found that Dennison is not the legally appointed representative of Plaintiff's estate. The Notice of Death fail s to qualify as a Notice of Death under Rule 25(a). The 57 Motion to Intervene by Christopher Donnelly, Jimmy James Thule, Jonathan Rich, Edward Breivik, Aaron Tsarnaev, Jared Lanza, Charles Loughner is DENIED, after having found that the Intervenors failed to allege any of the statutory grounds for intervention. Signed by Judge Richard W. Story on 7/16/2014. (vld)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
DENNIS MARX on behalf of the
Citizens of Forsyth County, State
of Georgia and all Citizens of the
United States of America,

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Plaintiff,
v.
FORSYTH COUNTY SHERIFF’S
OFFICE, et al.,
Defendants.

CIVIL ACTION NO.
2:13-CV-0175-RWS

ORDER
This case is before the Court for consideration of the Notification of
Untimely Death of Plaintiff and Request to Allow Plaintiff’s Estate to Go
Forward With This Instant Complaint [54]; Defendant Piper’s Response and
Objection to Notification of Untimely Death [56]; and Motion to Intervene as
Plaintiffs With Newly Discovered Evidence [57]. After reviewing the record,
the Court enters the following Order.
Plaintiff Dennis Marx passed away on June 6, 2014, while domiciled in
Forsyth County, Georgia. On June 12, 2014, “J.A. Dennison, Executor on
behalf of Dennis Marx,” filed a Notification of Untimely Death of Plaintiff and

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a Request to Allow Plaintiff’s Estate to Go Forward With This Instant
Complaint [54]. J.A. Dennison (“Dennison”) is not a party to this action and has
not provided a bar number or any other indication that she is an attorney. She
asserts that she is “Plaintiff’s Pro Se’s Executor of Estate.” (Notification of
Untimely Death [54] at 1). Dennison provided no Letters Testamentary or other
evidence that she has been duly appointed as the Executor or Administrator of
Plaintiff’s estate. Further, research by Defendant indicates that Dennis Marx did
not have an estate action pending in Forsyth County as of June 13, 2014.
Federal Rule of Civil Procedure 25(a) provides for the substitution of a
deceased party in an action:
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). “A valid suggestion of death under Rule 25(a) requires
two conditions. First, a formal Statement of Death must be placed ‘on the
record’ by one with authority to do so. Second, the Statement of Death must be
properly served pursuant to Rule 25(a)(3).” Schmitt v. Merill Lynch Trust Co.,
Case No. 5:07-CV-382-Oc-10GRJ, 2008 WL 2694891, at *2 (M.D. Fla. June
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30, 2008). The record in the present case does not support a finding that a
formal Statement of Death has been placed on the record by one with authority
to do so. “[C]ourts have construed the rule so as to allow the suggestion to be
filed by. . .either a party, or by a representative of the deceased party.” Id.
Because there is no evidence that Dennison has been appointed as the
representative of Plaintiff’s estate, she does not have the authority to file a
suggestion of death. Moreover, as a non-lawyer, Dennison would not be
permitted to proceed pro se on behalf of the estate. Franklin v. Garden State
Life Ins., 462 Fed. Appx. 928, 930 (11th Cir. 2012). Therefore, Defendant’S
Objection [56] to the Notice [54-1] is SUSTAINED, and Dennison’s Request to
Allow Plaintiff’s Estate to Go Forward With This Instant Complaint [54-2] is
due to be DENIED
A Motion to Intervene as Plaintiffs [57] was filed by persons identified as
Jimmy James Thule, Christopher Donnelly, Jonathan Rich, Edward Breivik,
Aaron Tsarnaev, Jared Lanza, and Charles Loughner. The Motion requests
permissive intervention stating, “Intervenors will provide questions of laws and
facts that are common in this action to support Dennis Marx’s claims.” (Motion
[57] at 1). The Motion sets out no other bases for intervention by these parties.

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The Court first notes the troubling similarity of the names of some of the
parties listed as proposed Intervenors with the last names of persons who are
suspected of mass murder. See Def.’s Resp. Br. [58] at 3-4. This “coincidence”
raises serious doubts about the legitimacy of the motion. As for the substance of
the Motion, the Court finds that Intervenors have failed to allege any of the
statutory grounds for intervention as of right under Rule 24(a) or permissive
intervention under Rule 24(b) of the Federal Rules of Civil Procedure.
Therefore, the Motion [57] is due to be DENIED.
Based on the foregoing, the Court SUSTAINS Defendant’s Objection
[56] to Dennison’s Notice Of Untimely Death and finds that the Notification of
Untimely Death of Plaintiff [54-1] fails to qualify as a Notice of Death under
Rule 25(a). Having found that Dennison is not the legally appointed
representative of Plaintiff’s estate, her Motion to Allow Plaintiff’s Estate to Go
Forward With the Instant Complaint [54-2] is DENIED. Finally, having found
that the Intervenors failed to allege any of the statutory grounds for
intervention, the Motion to Intervene [57] is DENIED.

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SO ORDERED, this 16th day of July, 2014.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

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