Anguiano v. LVNV Funding LLC et al

Filing 213

OPINION AND ORDER: The Court hereby GRANTS the Plaintiffs' Motion to Substitute and Appoint Richard Mitchell as Special Representative of the Estate of Mary Mitchell 212 . The Court ORDERS that Richard Mitchell is SUBSTITUTED for Mary Mitch ell in this cause of action. The Court DIRECTS the Clerk of Court to amend the electronic docket to replace Plaintiff Mary Mitchell with "Plaintiff Mary Mitchell (Deceased) by her Son and Next Friend, Richard Mitchell." Signed by Chief Judge Theresa L Springmann on 2/7/2020. (shk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MARY MITCHELL and KIMBERLY
MOORE, on behalf of themselves and all
other class members,
Plaintiffs,
v.

CAUSE NO.: 2:12-CV-523-TLS

LVNV FUNDING, LLC; RESURGENT
CAPITAL SERVICES, L.P.; and ALEGIS
GROUP, LLC,
Defendants.
OPINION AND ORDER
This matter is before the Court on a Motion to Substitute and Appoint Richard Mitchell
as Special Representative of the Estate of Mary Mitchell [ECF No. 212], filed on October 24,
2019. For the reasons stated below, the Motion is granted.
PROCEDURAL BACKGROUND
On July 25, 2019, counsel for Plaintiff Mary Mitchell filed a Suggestion of Death of
Plaintiff Mary Mitchell [ECF No. 204], indicating that Mary Mitchell, the class representative,
had suffered an unexpected and rapid decline in her health which resulted in her death. On July
31, 2019, an Unopposed Motion to Add Plaintiff as Additional Class Representative [ECF No.
205] was filed, requesting that the Court name Kimberly Moore, a class member, as a class
representative in this matter. In its September 11, 2019 Opinion and Order [ECF No. 208], the
Court granted the Unopposed Motion. On October 24, 2019, the instant Motion to Substitute and
Appoint Richard Mitchell as Special Representative of the Estate of Mary Mitchell [ECF No.

212] was filed by Plaintiff Kimberly Moore and by Richard Mitchell, son and heir of Plaintiff
Mary Mitchell. The Defendants did not file a response, and the time to do so has passed.
ANALYSIS
The instant motion seeks to substitute Richard Mitchell for Plaintiff Mary Mitchell
pursuant to Federal Rule of Civil Procedure 25(a)(1). This rule states:
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). Based on this Rule, the Motion will be granted only if (1) Mary
Mitchell’s claim was not extinguished upon her death and (2) Richard Mitchell is a proper party
for substitution. See id.
A.

Survivability of Mary Mitchell’s Fair Debt Collection Practices Act Claim
This class action lawsuit—and therefore Mary Mitchell’s claim—arises from Section

1629k of the Fair Debt Collection Practices Act (“FDCPA”). As this cause of action is created by
a federal statute, “federal law controls on the survival of the action.” 7C Fed. Prac. & Proc. Civ.
§ 1954 (3d ed.). However, there “is no general survival statute for federal-questions cases,” id;
nor does the FDCPA indicate whether claims grounded in a violation of the Act extinguish upon
the death of the plaintiff, see 15 U.S.C. § 1692k; Bradley v. Franklin Collection Serv., Inc., 5:10CV-1537, 2012 WL 12895015, at *4–5 (N.D. Ala. Apr. 10, 2012).
The few courts that have addressed the issue have concluded that FDCPA claims are not
extinguished upon the death of the claimant. See, e.g., Cuoco v. Palisades Collection, LLC, 13–
6592, 2014 WL 956229, at *3–5 (D. N.J. Mar. 11, 2014); Jewett v. Bishop, White Marshall &
Weibel, P.S., CV 12–10142, 2013 WL 6818245, at *2 (C.D. Cal. Feb. 25, 2013); Bradley, 2012
WL 12895015, at *4–5; see also Cruz v. Int’l Collection Corp., 673 F.3d 991, 996, 1002 (9th
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Cir. 2012) (ruling in favor of a substituted plaintiff). In Cuoco and Bradley, both the District
Court for the District of New Jersey and the District Court for the Northern District of Alabama,
respectively, concluded that FDCPA claims survive the death of a plaintiff because they are
remedial, rather than punitive, claims. Cuoco, 2014 WL 956229, at *3–5; Bradley, 2012 WL
12895015, at *4–5. 1 Although it appears that this exact issue has not been addressed by any
court in this circuit, courts in this circuit, including the Court of Appeals for the Seventh Circuit,
have generally made the same considerations when resolving issues of survivability. See, e.g.,
Smith v. No. 2 Galesburg Crown Fin. Corp., 615 F.2d 407, 414 (7th Cir. 1980) (“The general
rule is that actions for penalties do not survive the death of the plaintiff.”), overruled on other
grounds by Pridegon v. Gates Credit Union, 683 F.2d 182, 194 (7th Cir. 1982); Saleh v.
Merchant, 14-CV-09186, 2017 WL 1478000, at *5–6 (N.D. Ill. Apr. 25, 2017); LaFlamboy v.
Landek, 05 C 4994, 2009 WL 10695379, at *2 (N.D. Ill. Apr. 23, 2009); Cont’l Assur. Co. v. Am.
Bankshares Corp., 483 F. Supp. 175, 177–78 (E.D. Wis. 1980); see also 7C Fed. Prac. & Proc.
Civ. § 1954 (3d ed.).
Indeed, the Seventh Circuit has outlined a three-part test for courts to consider when
determining whether a claim is remedial or penal for the purposes of claim survivorship. See
Smith, 615 F.2d at 414. The first part of the test requires the Court to consider “whether the
purpose of the action is to redress individual wrongs or wrongs to the public.” Smith, 615 F.2d at
414; see also Saleh, 2017 WL 1478000, at *6. Congress has indicated that the purpose of the
FDCPA is to “eliminate abusive debt collection practices by debt collectors, to insure that those

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Although the United States Court of Appeals for the Ninth Circuit ruled in favor of a substituted plaintiff in a case
involving a FDCPA claim, it did not explain why the substitution was proper. See Cruz, 673 F.3d at 996. The
District Court for the Central District of California relied on the Ninth Circuit’s decision in Cruz to conclude that
FDCPA claims survive a party’s death. Jewett, 2013 WL 6818245, at *2.

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debt collectors who refrain from using abusive debt collection practices are not competitively
disadvantaged, and to promote consistent State action to protect consumers against debt
collection abuses.” 15 U.S.C. § 1692. Certainly, the public enjoys some benefit from the
FDCPA, as the Act promotes a safer market by deterring abusive debt collection practices. See
id. However, § 1692k empowers individuals to bring claims against debt collectors for the
damages they suffered in their individual capacity rather than for the harms suffered by the
public at large. 15 U.S.C. § 1692k. Therefore, this factor weighs in favor of FDCPA claims being
characterized as remedial rather than punitive.
The second part of the test requires the Court to consider “whether recovery runs to the
individual or to the public.” Smith, 615 F.2d at 414; see also Saleh, 2017 WL 1478000, at *6.
Analysis of this factor is rather straightforward, as the text of the statute explicitly states that
recovery runs to the individual. 15 U.S.C. § 1692k. Specifically, § 1692k(a) provides that “any
debt collector who fails to comply with any provision of this subchapter with respect to any
person is liable to such person.” Id. Again, this factor suggests that a § 1692k claim is remedial
rather than punitive.
The third and final part of the test requires the Court to consider “whether the authorized
recovery is wholly disproportionate to the harm suffered.” Smith, 615 F.2d at 414; see also
Saleh, 2017 WL 1478000, at *6. This is, perhaps, the most difficult factor to assess because
§ 1692k authorizes three types of recovery. See 15 U.S.C. § 1692k. Section 1692k allows an
individual to recover for “any actual damage sustained” as a result of a violation of the Act. Id. §
1692k(a)(1). Section 1692k also allows courts to award up to $1,000 of additional damages per
plaintiff, with some additional limitations in class action cases. Id. § 1692k(a)(2). Additionally, §
1692k authorizes the recovery of costs and attorney fees. Id. § 1692k(a)(3). Although these three

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sources of recovery may allow a successful plaintiff to recover an amount greater than the harm
suffered, this Court cannot conclude that such an amount would be wholly disproportionate to
the harm suffered. See Saleh, 2017 WL 1478000, at *6 (concluding that RICO treble damages
are not “wholly disproportionate” and that a RICO claim survives a plaintiff’s death). Thus, this
factor, too, supports a finding that the Act is remedial.
Finding that the factors outlined by the Seventh Circuit indicate that this action is
remedial in nature, the Court concludes that Mary Mitchell’s FDCPA claim was not extinguished
upon her death and that a proper party can be substituted pursuant to Rule 25.
B.

Proper Party for Substitution
The Court must also determine whether Richard Mitchell is an appropriate substitute for

Mary Mitchell. Rule 25 permits a court to substitute a “proper party.” Fed. R. Civ. P. 25. The
Seventh Circuit has explained that the proper party for substitution is ordinarily the “personal
representative of the party who has died.” Tucker v. Mitchell-Lawshea, 17-CV-05883, 2019 WL
1057384, at *2 (N.D. Ill. Mar. 6, 2019) (citing Atkins v. City of Chicago, 547 F.3d 869, 870 (7th
Cir. 2008)). Unfortunately, the Seventh Circuit has not yet addressed who the “proper party for
substitution is under Rule 25(a) where no personal representative has been or is expected to be
appointed.” Id. (citing Tamburo v. Dworkin, 04-C-3317, 2012 WL 104545, at *2 (N.D. Ill. Jan.
11, 2012); In re Baycol Prods. Litig., 616 F.3d 778, 783 (8th Cir. 2010)); see also In re Baycol
Prods. Litig., 616 F.3d at 783 (“It is well-established that a decedent’s legal representative may
substitute . . . for the decedent in a cause of action. It is not well-established . . . who may be
considered the decedent’s ‘successor’ under Rule 25(a)(1), and therefore, also a proper party for
purposes of substitution.”) (internal citations omitted).

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However, other federal courts have agreed that the requirement of appointing a legal
representative is too rigid and that other individuals may be proper parties for substitution under
Rule 25(a)(1). See Hardy v. Kaszycki & Sons Contractors, Inc., 842 F. Supp. 713, 716 (S.D.N.Y.
1993) (“Although [the individual] has not been formally appointed as the representative of the
Estate, several courts interpreting Fed. R. Civ. P. 25(a) have held that such formality is not
required in certain situations.” (citing Gronowicz v. Leonard, 109 F.R.D. 624, 626 (S.D.N.Y.
1986); McSurely v. McClellan, 753 F.2d 88, 97 (D.C. Cir. 1985))); see also Sinito v. U.S. Dep’t
of Justice, 176 F.3d 512, 516 (D.C. Cir. 1999) (“[T]he word ‘successor’ . . . means that a proper
party need not necessarily be the appointed executor or administrator of the deceased party’s
estate.” (citing Rende v Kay, 415 F.2d 983, 986 (D.C. Cir. 1969))); Mason v. Asset Acceptance,
LLC, 1:06-CV-735, 2007 WL 2112347, at *2 (S.D. Ohio July 9, 2007) (“[A] party need not
necessarily be appointed administrator or executor of the decedent’s estate in order to be
substituted as a party as long as the substitute is a distributee of the estate.”).
At the appellate level, the Seventh Circuit has addressed the issue of substitution as it
relates to Federal Rule of Appellate Procedure 43(a). See Anderson v. Romero, 42 F.3d 1121,
1123 (7th Cir. 1994). In Anderson, the Seventh Circuit used state law to determine whether an
individual is a proper party for substitution under Federal Rule of Appellate Procedure 43(a). Id.
As Rule 25(a)(1) is the trial court equivalent of Federal Rule of Appellate Procedure 43(a), the
same analysis can be applied. See Tucker, 2019 WL 1057384, at *2–5; Tamburo, 2012 WL
104545, at *2; see also Gamble v. Thomas, 655 F.2d 568, 569 (5th Cir. 1981) (“[Fed. R. App. P.
43(a)] is derived from Fed. R. Civ. P. 25(a).”). This conclusion is supported by courts outside of
this circuit, as many courts have held that state law should be used to resolve issues related to

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substitution. See, e.g., Deen v. Egleston, 597 F.3d 1223, 1227 n.1 (11th Cir. 2010); In re Baycol
Prods. Litig., 616 F.3d at 783; see also 6 Moore’s Federal Practice – Civil § 25.12.
Thus, the Court will look to state law to determine if Richard Mitchell is a proper person
to be substituted for Mary Mitchell. See 6 Moore’s Federal Practice – Civil § 25.12. To
determine whether Richard Mitchell is a proper party, Mary Mitchell and her estate must be
considered. The following is known about Mary Mitchell and her estate:


Mary Mitchell died in the State of Indiana;



Mary Mitchell’s estate contains less than $50,000 of assets;



Mary Mitchell died intestate;



Mary Mitchell was not married at the time of her death;



Mary Mitchell had at least one child, Richard Mitchell;



Mary Mitchell lived with Richard Mitchell before her death;



Richard Mitchell was Mary Mitchell’s primary caregiver.

Decl. Richard Mitchell ¶¶ 1–8, ECF No. 212-1.
Indiana law is applied because Mary Mitchell died in Indiana. Under Indiana law, an
action that survives the death of a plaintiff may be continued by the deceased party’s personal
representative or successor in interest. See Ind. Code § 34-9-3-1; Ind. Trial P. R. 25. The Indiana
Probate Code defines “personal representative” to include an “executor, administrator,
administrator with the will annexed, administrator de bonis non, and special administrator.” Ind.
Code § 29-1-1-3(25). At this time, no personal representative has been appointed on behalf of
Mary Mitchell’s estate. Mot. Substitute & Appoint ¶ 24–25, ECF No. 212. Further, no legal
representative will be appointed because Mary Mitchell’s estate will be distributed by small
estate affidavit. See Ind. Code § 29-1-8-1; Mot. Substitute & Appoint ¶ 24–25.

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In Anderson, the Seventh Circuit concluded that it had the power to appoint a special
representative and substitute that party pursuant to Rule of Appellate Procedure 43(a) to continue
the action. Anderson, 42 F.3d at 1123. Likewise, the District Court for the Northern District of
Illinois opined that it had the authority to appoint a special representative who could be
substituted pursuant to Rule 25(a). Tucker, 2019 WL 1057384, at *2–5. In the instant case, the
Plaintiff asserts, presumably relying on this case law, that this Court can appoint Richard
Mitchell as a special representative of Mary Mitchell’s estate. Mot. Substitute & Appoint ¶ 24.
However, both courts in the cited cases relied on an Illinois statute, 735 ILCS 5/2-1008(b)(2),
which is inapplicable to the instant question of Indiana law, to conclude that they had the
requisite authority appoint a special representative. See Anderson, 42 F.3d at 1123; Tucker, 2019
WL 1057384, at *2–5.
It does appear that the Indiana Code allows for a special administrator to be appointed to
serve as a personal representative. See Ind. Code § 29-1-10-15. However, due to the Court’s
limited jurisdiction over probate matters, it is unclear whether this statute empowers this Court.
See Marshall v. Marshall, 547 U.S. 293, 311–312 (2006) (“[T]he probate exception reserves to
state probate courts the probate or annulment of a will and the administration of a decedent’s
estate . . . [b]ut it does not bar federal courts from adjudicating matters outside those confines
and otherwise within federal jurisdiction.”).2 Regardless, even if the statute is applicable, the
Court could not appoint a special administrator because nothing in the record suggests that the
conditions of the statute have been met. See Ind. Code § 29-1-10-15.
Nevertheless, this Court has the authority to substitute Mary Mitchell’s successor in
interest to continue her claim. See Ind. Code § 34-9-3-1; Ind. Trial P. R. 25. Mary Mitchell’s

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The Court agrees with Judge Durkin’s observation made in Tucker: “This is not a well-traveled area of the law.”
2019 WL 1057384, at *5.

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successors in interest include those individuals that will inherit the estate. Burnett v. Milnes, 46
N.E. 464, 465 (Ind. 1897). As Mary Mitchell died intestate, her heirs will inherit as specified in
Indiana Code § 29-1-2-1. As her son, Richard Mitchell will, at least partially, inherit Mary
Mitchell’s estate, see Ind. Code § 29-1-2-1, making him a successor in interest and a proper party
to continue this action on Mary Mitchell’s behalf. See Burnett, 46 N.E. at 465; see also Hardy,
842 F. Supp. at 716 (holding that the primary distributee of an estate is a proper party for the
purposes of substitution).
CONCLUSION
For the reasons stated above, the Court hereby GRANTS the Plaintiffs’ Motion to
Substitute and Appoint Richard Mitchell as Special Representative of the Estate of Mary
Mitchell [ECF No. 212]. The Court ORDERS that Richard Mitchell is SUBSTITUTED for Mary
Mitchell in this cause of action. The Court DIRECTS the Clerk of Court to amend the electronic
docket to replace “Plaintiff Mary Mitchell” with “Plaintiff Mary Mitchell (Deceased) by her Son
and Next Friend, Richard Mitchell.”
SO ORDERED on February 7, 2020.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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