Gavitt v. Ionia, County of et al
Filing
47
OPINION and ORDER denying pltf's motion for substitution of party. 33 Signed by District Judge Nancy G. Edmunds. (CBet)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID L. GAVITT,
Case No. 14-12164
Plaintiff,
Honorable Nancy G. Edmunds
v.
IONIA COUNTY, ET AL.,
Defendants.
/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUBSTITUTION OF
PARTY [33]
This is a civil rights case brought pursuant to 42 U.S.C. § 1983. On June 2, 2014,
Plaintiff David Gavitt filed a complaint against numerous Defendants, including John E.
DeVries, deceased, in his individual and official capacity. On August 22, 2014, Plaintiff filed
a motion for substitution of party, seeking to substitute John E. DeVries, deceased, as a
party Defendant with Jeshua Thomas Lauka as Special Personal Representative of the
Estate of John E. DeVries, deceased. Plaintiff’s motion for substitution is DENIED. Plaintiff
cannot obtain substitution under Federal Rule of Civil Procedure 25(a) because John E.
DeVries died on August 4, 1994, some 20 years before this action was filed. And Plaintiff
cannot amend his complaint to make the substitution under Federal Rule of Civil Procedure
15 because, under Michigan’s probate law, Plaintiff’s claims against John DeVries’s estate
are time-barred, making any amendment futile. See Fed. R. Civ. P. 15, 17(b)(3), and Mich.
Comp. Laws § 700.3803.
-1-
I.
Background
Plaintiff Gavitt (hereinafter “Gavitt”) survived a March 9, 1995 house file. His wife and
two daughters did not. State criminal charges were brought against Gavitt, and a jury trial
was held in the Circuit Court for the County of Ionia. See People v. David Lee Gavitt, Ionia
County Circuit Court Case No. 85-007555. In February 1986, a jury convicted Gavitt on
three counts of murder committed in the perpetration of arson (first degree felony murder)
and one count of arson to a dwelling place. The one count of arson was dismissed by the
Court at sentencing. On April 18, 1986, Gavitt was sentenced to “imprisonment for life on
each of the three counts of murder, to be served concurrently with each other.” (Defs.’
Ionia County, Gabry, Voet, Schaefer, and Benda Mot. for Sum. Judg., Ex. 5, 5/1/86 Judg.
of Sentence.)
In September 2011, a motion for relief from judgment was filed on Gavitt’s behalf by
the University of Michigan Law School’s Innocence Clinic, arguing that there was newlydiscovered evidence of Gavitt’s innocence, i.e., newly discovered scientific analysis of the
origin and cause of the fire establishing that there was no arson. (Id. at Ex. 10, Brief at 1637.) The parties stipulated to a stay of Gavitt’s motion, allowing the Ionia Prosecutor’s
Office time for scientific review of Gavitt’s claims. (Id. at Ex. 12, 9/15/11 Stip.) On June
6, 2012, after a thorough investigation, the Ionia County Prosecutor, on behalf of the
People of the State of Michigan, responded to Gavitt’s motion.
The Ionia Prosecutor acknowledged that, although “fire investigators” involved in the
original investigation “held to a common understanding within fire investigation,” it is now
known that that “was inaccurate, specifically regarding the recognition and identification of
unusual burn patterns in the floor as definitive evidence of ignitable liquid pour patterns.
-2-
Unfortunately, during that time period many fire investigators did not understand the
phenomena of flashover and post-flashover and their effects on the production of unusual
burn patterns in floors within compartments.” (Id. at Ex. 14, People’s Resp. at 16.) The
Prosecutor also acknowledged that Gavitt had satisfied the requirements for a new trial.
[T]he Peoples [sic] recent investigation confirms the 1985 findings which found
the presence of accelerants on the carpet samples introduced at trial can no
longer be independently verified as having a presence of ignitable liquids,
specifically gasoline. Therefore, the parameters for meeting the legal
requirement for a new trial are not disputed.
(Id.)
Despite an admission that “three independent analyses of the evidence suggest there
was likely no gasoline on the carpet samples taken out of the Gavitt house in 1985,” the
Ionia Prosecutor emphasized that “there are still a great deal of questions surrounding this
case which raise significant questions.” (Id. at 18.) “Still today, these unanswered
questions linger when looking at the case on the whole, even in light of the acknowledged
findings in this response. In fact, this is the exact type of case that would have remained
open had it not been prosecuted earlier; the type of case where justice would demand that
it stay open.” (Id. at 19.) Nonetheless, the Prosecutor acknowledged, “it does not change
the fact that fire investigation has advanced in the twenty-seven years since this fire.” (Id.
at 19-20.)
The Prosecutor identified some of those fire investigation advances and explained
why, in light of those advances, Gavitt cannot be retried.
In particular, our understanding of flashover, post-flashover and the production
of unusual burn patterns in floors, potentially identified as pour patterns, is
different today than in 1985. Testing of materials in fire cases has also
advanced, with more sophisticated instrumentation and analysis. Consequently,
there is new evidence in this case and Defendant is entitled to a new trial. As
-3-
outlined, based on today’s understanding of fire dynamics and the evolved level
of fire investigation, this fire incident would likely be classified as undetermined
and consequently the People will not be able to retry Defendant . . . . there is
only one thing known with certainty, as of today, this case involves a fire of
undetermined origin and cause. Having no laboratory verification of the
presence of an accelerant, combined with what the People now know through
scientific research and testing regarding flashover and post-flashover
compartment fires, and the production of unusual burn patterns in the floor, the
determination that an ignitable liquid (gasoline) was used to initiate the fire at the
Gavitt residence cannot be verified. As a result, this is a case this office could
not charge as arson based on the evidence available today. However, this is
also a case that, if it was new today, this office would not close. There are
simply too many questions, questions which may never be answered.
Ultimately, this remains a case in which the lives of three innocent people were
taken by a fire that can only be classified as having an undetermined origin and
cause.
(Id. at 20.)
On June 6, 2012, the People of the State of Michigan and Gavitt stipulated that
Gavitt’s motion for relief from judgment be granted, that all charges against Gavitt be
immediately dismissed, and that the Court order his immediate release from the custody
of the Michigan Department of Corrections. (Id. at Ex. 15, 6/6/12 Stip.) That same day, the
Ionia County Circuit Court issued an Order granting Gavitt’s motion, dismissing all the
charges against him, and ordering his immediate release. (Id. at Ex. 15, 6/6/12 Order.)
On June 2, 2014, Gavitt filed this civil rights action, pursuant to 28 U.S.C. § 1983,
against numerous Defendants, including John E. DeVries, deceased, in his individual and
official capacity as a technician of the Michigan State Police crime laboratory. (ECF No.
1, Compl., ¶¶ 50, 57)1 In Counts 1 and 5, Gavitt alleges that Defendant John E. DeVries,
deceased, intentionally misrepresented evidence, failed to correct incomplete and
1
Plaintiff’s state law claims, i.e., those in Counts 9, 10, and 11 alleging violations
of state constitutional rights, obstruction of justice, and malicious prosecution, were
dismissed without prejudice. (ECF No. 5, Order.)
-4-
misleading laboratory reports, failed to disclose exculpatory evidence, and intentionally
withheld exculpatory evidence and thus directly or proximately caused Gavitt to be
wrongfully imprisoned for 26 years thus depriving him of his liberty in violation of his
substantive due process rights under the Fourteenth Amendment. (Compl., ¶¶ 206-217,
244-255.)
John E. DeVries died on August 4, 1994. No personal representative for Mr. DeVries
estate was appointed until June 19, 2014 when Gavitt, as an interested party/creditor, filed
a Petition with the Kent County Probate Court requesting one. (ECF No. 33, Pl.’s Mot., ¶
5.)
On July 29, 2014, Probate Judge David Murkowski issued an Order granting Gavitt’s
Petition, finding that John DeVries died intestate, and appointing Jeshua Thomas Lauka
as a special personal representative “solely to defend the pending Federal lawsuit, 2:14-cv12164, Gavitt v. DeVries, et al.” (ECF No. 29, Ex. A, 7/29/14 Order.) On the same day,
Letters of Authority were issued with the same limitation, “The personal representative’s
role is solely to defend the pending Federal Lawsuit, 2:14-cv-12164, Gavitt v. Devries, et
al.” (Id., Ex. A, 7/29/14 Ltrs. of Authority.)
II.
Analysis
This matter is now before the Court on Gavitt’s motion seeking to substitute Jeshua
Thomas Lauka, Special Personal Representative of the Estate of John E. DeVries,
deceased in place of named Defendant – John E. DeVries, deceased, individually, and
in his official capacity as a technician of the Michigan State Police Crime Laboratory. Gavitt
argues that this party substitution is permitted under Federal Rules of Civil Procedure
25(a)(1). Invoking Rules 15 and 4, he argues, in the alternative, that this Court should
-5-
allow Gavitt to amend his complaint, make the requested substitution, re-issue the
summons, and permit Gavitt to serve the amended complaint on Mr. Lauka. See Fed. R.
Civ. P. 15, 4.
Two responses have been filed. Defendants Ionia County, Gabry, Voet, Schafer, and
Benda (former and current Ionia County Prosecutors) (hereinafter “County Defendants”)
filed a response that objects to Gavitt’s “Statement of Relevant Facts” but takes no position
on Gavitt’s request for the substitution of party Defendants. (ECF No. 35, County Defs.’
Mot.) Defendants Kalman, Fatchett, Hough, Davis, Madden, Munoz, Sturdivant, Etue, and
Washington (former and current Michigan State Police Directors and former Michigan State
Police officers and members of the arson strike force) (hereinafter “State Defendants”) also
filed a response. (ECF No. 38, State Defs.’ Resp.) The State Defendants do oppose
Gavitt’s substitution of party Defendants, arguing that (1) Gavitt cannot obtain substitution
under Rule 25(a) because John DeVries died before this § 1983 action was commenced;
and (2) the requested amendment, adding DeVries’s estate as a named Defendant, would
be futile and thus should not be allowed under Rule 15 of the Federal Rules of Civil
Procedure.
The Court now examines the parties’ arguments.
A. Plaintiff’s Reliance on Rule 25(a) Is Misplaced
Rule 25 of the Federal Rules of Civil Procedure provides that:
(a) Death
(1)
Substitution if the Claim is Not Extinguished. 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
-6-
noting the death, the action by or against the decedent must be
dismissed.
(2)
Continuation Among the Remaining Parties. After a party’s death,
if the right sought to be enforced survives only to or against the
remaining parties, the action does not abate, but proceeds in favor
of or against the remaining parties. The death should be noted on
the record.
(3)
Service. A motion to substitute, together with a notice of hearing,
must be served on the parties as provided in Rule 5 and on
nonparties as provided in Rule 4. A statement noting death must
be served in the same manner. Service may be made in any
judicial district.
*****
(b) Public Officers; Death or Separation from Office. An action does not
abate when a public officer who is a party in an official capacity dies,
resigns, or otherwise ceases to hold office while the action is pending.
...
Fed. R. Civ. P. 25(a)(1), (b) (emphasis added).
According to its plain language, highlighted above, Rule 25 does not permit
substitution when a claim is being asserted against someone who died before the plaintiff
filed his complaint. Rather, it permits substitution when a party dies after the action has
already commenced. See Flick v. Vadlamudi, M.D., No. 1:09-cv-647, 2010 WL 3061096,
*1 (W.D. Mich. July 16, 2010) (citing decisions and authority acknowledging that Rule 25(a)
contemplates substitution for someone who is alive when the action is commenced), Mgst.
R & R approved & accepted, 2010 WL 3061021 (W.D. Mich. Aug. 3, 2010). See also 25
Fed. Proc., L. Ed. § 59:452 (Sept. 2014) (“Fed. R. Civ. P. 25(a) contemplates substitution
only for someone who has been made a party before his or her death, not someone who
predeceased the filing of the action.”). Because John DeVries died 20 years before Gavitt
filed his complaint, Rule 25(a) does not allow the substitution he requests.
-7-
B. Plaintiff’s Claims Against John DeVries are Time-Barred
Plaintiff Gavitt alternatively argues that Rules 15 and 17 of the Federal Rules of Civil
Procedure allow him to substitute DeVries’s estate for DeVries as a party Defendant. He
is mistaken.
Federal Rule of Civil Procedure 17(a) addresses the joinder or substitution of “real
parties in interest,” and sets out the procedure for determining whether DeVries’s estate
has the capacity to be sued. See Fed. R. Civ. P. 17(b).2 Rule 17(b)(3) requires the Court
to consult Michigan law for the answer to that question. See Fed. R. Civ. P. 17(b)(3).
Michigan has a statute that determines when claims against an estate are time-barred.
See Mich. Comp. Laws § 700.3803. Under that statutory scheme, the Court must first
determine when Gavitt’s claims against DeVries’s estate arose or, stated otherwise, when
those claims accrued.
1. Plaintiff’s Claims Against the DeVries Estate Arose/Accrued on June 6, 2012
“As this is a § 1983 case, ‘state law determines what statute of limitations applies’ and
2
Rule 17(b) provides as follows:
(b)
Capacity to Sue or Be Sued. Capacity to sue or be sued is
determined as follows:
(1)
for an individual who is not acting in a representative
capacity, by the law of the individual’s domicile;
(2)
for a corporation, by the law under which it was
organized; and
(3)
for all other parties, by the law of the state
where the court is located . . . .
Fed. R. Civ. P. 17(b) (emphasis added).
-8-
‘federal law determines when the statutory period begins to run.’” Zanecki v. Health
Alliance Plan of Detroit, ___ F. App’x ___, 2014 WL 3973483, at *1 (6th Cir. Aug. 15, 2014)
(quoting Harrison v. Mich., 722 F.3d 768, 772 (6th Cir. 2013), cert. denied, ___ U.S. ___,
134 S. Ct. 1023 (2014)). “Michigan’s three-year statute of limitations applies, Mich. Comp.
Laws § 600.5805(10).” Id. And, under federal law, the accrual date for Gavitt’s claims
against DeVries’s estate, alleging an invalid conviction, are “controlled by the Supreme
Court’s opinion in Heck v. Humphrey, 512 U.S. 477 (1994).” Harrison, 722 F.3d at 771.
Quoting Heck, the Harrison court explained:
“Just as a cause of action for malicious prosecution does not accrue until the
criminal proceedings have terminated in the plaintiff’s favor, so also a § 1983
cause of action for damages attributable to an unconstitutional conviction or
sentence does not accrue until the conviction or sentence has been invalidated.”
Id. at 772 (quoting Heck, 512 U.S. at 489-90 (citations and internal quotation marks
omitted) (emphasis added by Harrison court).
Here, just as in Harrison, there is a § 1983 cause of action for damages attributable
to an unconstitutional conviction or sentence. In Harrison, the plaintiff’s § 1983 cause of
action for damages alleged he was improperly sentenced and unlawfully confined in a
Michigan prison for 18 months. Id. at 769-70. Here, Gavitt’s § 1983 cause of action
alleges that he was improperly convicted and unlawfully confined in a Michigan prison for
26 years. Just as in Harrison, Gavitt sought post-conviction relief from his judgment under
Michigan Court Rule 6.502. Both the plaintiff in Harrison and Gavitt obtained the relief they
sought. In Harrison, that relief was obtained in September 2008, when the Michigan Court
of Appeals held that Harrison had been improperly sentenced to consecutive terms,
reversed the trial court’s decision, and remanded with orders for the state trial court to issue
-9-
a corrected judgment. Id. at 770, 772, 773. The Harrison court concluded that Harrison’s
§ 1983 claims accrued in September 2008. It explained:
[I]f Harrison had brought a § 1983 suit in 1990 when released from prison on the
1986 conviction, it would necessarily have been dismissed for failure to state a
claim, because Harrison’s 1986 conviction had not yet been reversed or his
sentence corrected. That did not happen until the Michigan Court of Appeals
ordered the state trial court to take such action in 2008. Before that date, any
claim that Harrison might have alleged asserting the invalidity of his 1986
conviction, regardless of the relief sought, would have been – in the words of the
Heck Court – “not cognizable under § 1983" for lack of a favorable termination.
Id. at 773 (quoting Heck, 512 U.S. at 487).
Here, Gavitt’s § 1983 claims asserted against DeVries’s estate accrued on June 6,
2012, the date the Ionia Circuit Court issued an Order granting Gavitt’s motion for relief
from judgment, dismissing all charges against him, and ordered his release from the
custody of the Michigan Department of Corrections. (Id. at Ex. 15, 6/6/12 Order.)
Having determined that the claims Gavitt intends to assert against DeVries’s estate
arose after his 1994 death, this Court must consider whether Michigan’s statute addressing
claims against a decedent’s estate are permitted here. See Mich. Comp. Laws § 700.3803.
2. Plaintiff’s Claims Against DeVries’s Estate Are Time-Barred
Michigan’s statutory scheme distinguishes between claims against a decedent’s
estate that arose before or after the decedent’s death. Here, the Court has determined that
Gavitt’s constitutional tort-based claims arose after John DeVries death. Thus, Mich.
Comp. Laws § 700.3803(2)(b) applies. The relevant portions of § 700.3803(2) are as
follows:
(2) A claim against a decedent’s estate that arises at or after the decedent’s
death . . . whether due or to become due, absolute or contingent, liquidated or
unliquidated, or based on contract, tort, or another legal basis, is barred against
the estate, the personal representative, and the decedent’s heirs and devisees,
-10-
unless presented within 1 of the following time limits:
(a) For a claim based on a contract with the personal representative, within 4
months after performance by the personal representative is due.
(b) For a claim to which subdivision (a) does not apply, within 4 months after the
claim arises or the time specified in subsection (1)(a), whichever is later.
Mich. Comp. Laws § 700.3803(2) (emphasis added).
Subsection (2)(a) does not apply. Under subsection (2)(b), this Court has determined
that Gavitt’s claims against DeVries’s estate arose on June 6, 2012. Because Gavitt failed
to file his § 1983 action within four months after June 6, 2012, the Court must look to the
time specified in subsection (1)(a) to determine whether his claims against DeVries’s estate
are time-barred.
Subsection (1)(a) provides that:
(a) If notice is given in compliance with [Mich. Comp. Laws §§ 700.] 3801 or
7608, within 4 months after the date of the publication of notice to creditors,
except that a claim barred by a statute at the decedent’s domicile before the
publication for claims in this state is also barred in this state.
Mich. Comp. Laws § 700.3803(1)(a) (emphasis added).
State Defendants argue, and Plaintiff Gavitt does not dispute, that the notice
requirements of Mich. Comp. Laws §§ 700.3801 or 700.7608 have not been met. (State
Defs.’ Mot. at 12.) Thus, § 700.3803(1)(c) applies, giving Gavitt 3 years after John DeVries’
death to file his claims:
(c) If the notice requirements of 3801 or 7608 have not been met, within 3 years
after the decedent’s death.
Mich. Comp. Laws § 700.3803(1)(c).
Reading subsections 3803(2)(b), 3803(1)(a), and 3803(1)(c) of Michigan’s probate law
together, Gavitt’s § 1983 claims against DeVries’s estate are time-barred because he
-11-
failed to file them within four months after those claims arose on June 6, 2012. Gavitt does
not argue that any statutory exceptions apply, and State Defendants have persuasively
shown why none do. (State Defs.’ Mot. at 14-15.) Moreover, as State Defendants’
persuasively argue, the Kent County Probate Court’s order appointing Mr. Lauka as a
special personal representative of John DeVries’s estate, expressly limits his authority to
defending against Gavitt’s claims in this lawsuit. The arguments State Defendants raise
here present just a defense. Based on the state Probate Court’s order and letters of
authority, Mr. Lauka cannot reject this defense.
3. Any Amendment Adding Claims Against DeVries’s Estate Would Be Futile
Finally, this Court rejects Gavitt’s alternative argument that he be allowed to amend
his complaint to delete John DeVries, deceased, as a party Defendant; to add Mr. Lauka
as a special personal representative of Mr. DeVries’s estate as a party Defendant; and to
assert § 1983 claims against the DeVries estate. For all the reasons discussed above, any
amendment doing this would be futile. It is well-established that Rule 15 of the Federal
Rules of Civil Procedure cannot be invoked to allow the addition of futile claims. See
Foman v. Davis, 371 U.S. 178 (1962); Rose v. Hartford Underwriters Ins. Co., 203 F.3d
417, 421 (6th Cir. 2000) (observing that a proposed amendment “is futile only if it could not
withstand a Rule 12(b)(6) motion to dismiss.”). Claims that are time-barred cannot
withstand a Rule 12(b)(6) motion and are thus futile.
III.
Conclusion
For the above-stated reasons, Plaintiff’s motion for substitution of party [33] is
DENIED.
-12-
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: November 3, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of record
on November 3, 2014, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager
-13-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?