Massachusetts Mutual Life Insurance Company v. Hill

Filing 54

ORDER entered that counsel of record for the decedent file a declaration in this case within 14 days of this order (53) Motion in case 4:15-cv-00166-DMB-JMV; entered (46) Motion in case 4:15-cv-00184-DMB-JMV. Signed by Magistrate Judge Jane M. Virden on 11/15/16. Associated Cases: 4:15-cv-00184-DMB-JMV, 4:15-cv-00166-DMB-JMV (tab)

IN THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
V.

PLAINTIFF
CIVIL ACTION NO. 4:15CV-166-DMB-JMV

PURVIS WILLIAM HILL, JR.

DEFENDANT

Consolidated With

PURVIS WILLIAM HILL, JR.
V.

PLAINTIFF
CIVIL ACTION NO. 4:15-CV-184-DMB-JMV

MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY AND JOHN DOES 1-3

DEFENDANTS

ORDER

This matter is before the court on Massachusetts Mutual Life Insurance Company’s (“Mass
Mutual”) motion [53 in 4:15cv166 & 46 in No. 4:15cv184] in these consolidated cases for an order
regarding substitution of a party. Having considered the motion and the fact no response thereto
has been made by counsel of record for the deceased party, the court finds as follows:
Federal Rule of Civil Procedure 25 provides: “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.” FED.R.CIV.P. 25(a)(1).
Rule 25 further requires that a motion to substitute must be made within 90 days after service, as
provided in FED.R.CIV.P. 4, of a suggestion of death on nonparties. See FED.R.CIV.P. 25(a)(1)-(3).
In this case Mass Mutual filed a Suggestion of Death of Purvis William Hill, Jr., on August
5, 2016. The suggestion of death has not been served in accordance with Rule 4 on any nonparty.
Consequently, the 90-day period for filing a motion to substitute pursuant to Rule 25 has not yet

begun to run. The court declines, however, to further hold, as suggested by counsel for the movant,
that only service of a suggestion of death on a deceased’s estate pursuant to Rule 4 can trigger the
running of the 90-day period. See, e.g., Lewis v. Flowers, No. 1:15cv116-HSO-JCG, 2016 WL
3162065, at *1 (S.D. Miss. June 3, 2016) (“Although the Court recognizes that Defendant has not
yet located an estate upon which to serve process, Defendant has located Plaintiff’s daughter who
appears to be an heir-at-law and potential ‘representative’ of the late Plaintiff and upon whom
Defendant could have served notice in accordance with Rule 4.")1
Consistent with Webb v. Town of St. Joseph, No. 3:12-CV-02644, 2016 WL 2726648, at *3
(W.D. La. May 9, 2016), the Court does, however, find that it is appropriate that counsel of record
for the decedent file a declaration in this case within 14 days of this order stating: 1) whether an
estate has been or will be opened and the identity of the estate’s representative; 2) if no estate has
been but will be opened, by what date this will occur; and 3) if no estate has been or will be
opened, the identity of the decedent’s legal successor(s) or representative(s). Counsel is warned
that failure to file such declaration in accordance with this order may result in an appropriate
sanction.
So ORDERED this the 15th day of November, 2016.

/s/ Jane M. Virden
U. S. Magistrate Judge

1

Rather, because the Court does not issue advisory opinions, it will leave to counsel, the
responsibility, in the first instance, to determine who may be a proper successor or representative
pursuant to Rule 25 in this case.