Lewis v. Flowers et al

Filing 22

Order Denying Without Prejudice Defendant David Kilgore's Motion to Dismiss 20 and Supplemental Motion to Dismiss 21 . Signed by District Judge Halil S. Ozerden on June 3, 2016. (BGL)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
WARREN LOVITE LEWIS
V.

PLAINTIFF
CIVIL NO. 1:15cv116-HSO-JCG

JULIE FLOWERS, WARDEN, AND
DAVID KILGORE, MEDICAL ADMINISTRATOR
FOR PEARL RIVER COUNTY JAIL

DEFENDANTS

ORDER DENYING WITHOUT PREJUDICE DEFENDANT
DAVID KILGORE’S MOTION TO DISMISS [20] AND
SUPPLEMENTAL MOTION TO DISMISS [21]
This matter is before the Court on Defendant David Kilgore’s Motion to
Dismiss [20] filed May 27, 2016, and Supplemental Motion to Dismiss [21] filed
June 2, 2016. Having considered both Motions, the record, and relevant legal
authority, the Court finds that the Motions [20] [21] should be denied without
prejudice at this time.
On April 7, 2015, Plaintiff Warren Lovite1 Lewis, an inmate housed at the
Federal Medical Center in Butner, North Carolina, filed his pro se Complaint [1]
pursuant to 42 U.S.C. § 1983. On January 21, 2016, Defendant David Kilgore2
(“Defendant”) filed, as a matter of record, a Suggestion of Death [16], and attached
a copy of the “Certificate of Death” [16-1] of Plaintiff Warren Lovette Lewis.
On March 20, 2016, Defendant filed a Motion to Dismiss [17] asserting that,
pursuant to Rule 25 of the Federal Rules of Civil Procedure, the Court should
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On the face of the Complaint “Warren Lewis” is typewritten with “Lovite”
appearing in handwriting. The Certificate of Death lists the Plaintiff as Warren
“Lovette” Lewis.
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Defendant Julie Flowers was dismissed pursuant to the Court’s December
31, 2015, Order [14] Granting Defendant Julie Flower’s Motion to Dismiss.

dismiss the litigation because there had been no response to Defendant’s Suggestion
of Death of Plaintiff Warren Lovite Lewis [16] filed January 21, 2016. In denying
that Motion [17] without prejudice, the Court found that Defendant had not served
the Motion on the deceased-plaintiff’s estate, in accordance with Rule 4. Order [19]
at 1-2; see Sampson v. ASC Industries, 780 F.3d 679, 683 (5th Cir. 2015); see also
FED. R. CIV. P. 4, 25(a)(3).
On May 27, 2016, Defendant filed the present Motion to Dismiss [20] reurging the dismissal of this matter. In support of his Motion, Defendant attaches:
(1) a copy of Plaintiff’s Death Certificate, Exhibit “A” [20-1], reflecting that Plaintiff
was buried in Lumberton, Lamar County, Mississippi; (2) a copy of a letter from the
Chancery Clerk of Lamar County, Mississippi, Exhibit “B” [20-2], reflecting that as
of May 5, 2016, no estate had been opened for Plaintiff; and (3) a copy of a letter
sent to Plaintiff’s daughter Gayle Frizzell, as identified in Exhibit “A,” asking if an
estate had been opened for Plaintiff, Exhibit “C” [20-3]. Defendant argues that,
based upon the response from the Chancery Clerk of Lamar County and the lack of
response from Plaintiff’s daughter, Defendant cannot locate an estate and therefore
this matter should be dismissed. Mot. [20] at 1-3. Alternatively, Defendant alleges
that this matter should be dismissed “for failure to prosecute” premised upon the
theory that the burden to discover this pending matter was that of “Ms. Frizzell or
some family member of the deceased Plaintiff.” Mot. [20] at 2, ¶14.
Although the Court recognizes that Defendant has not yet located an estate
upon which to serve process, Defendant has located Plaintiff’s daughter who

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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. See
FED. R. CIV. P. 4. Instead of serving Ms. Frizzell, Defendant elected to write Ms.
Frizzell a letter asking only if an estate had been opened without providing any
information concerning this matter or even the style of this case. See Exhibit “C”
[20-3] at 1. Defendant has cited no authority to support the position that the letter
to Ms. Frizzell satisfies the requirements of Rule 25, or that this letter is sufficient
to trigger the 90 day period for filing a motion to substitute the Plaintiff.
On June 2, 2016, Defendant filed his Supplemental Motion to Dismiss [21]
advising the Court that he had received a response from Ms. Frizzell on June 2,
2016, and asserting that Defendant would “serve the Estate” with a copy of the
Suggestion of Death once he was informed of the “name and address of the court
where the estate was opened and the name and case number for the estate.” Suppl.
Mot. [21] at 1.
The Fifth Circuit has held that personal service on a nonparty alerts the
nonparty to the consequences of death for a pending suit and signals to the
nonparty the need for action to preserve the claim if so desired:
Personal representatives of a deceased-plaintiff’s estate are
non-parties that must be personally served under Rule 25. Barlow v.
Ground, 39 F.3d 231, 233 (9th Cir. 1994) (“[T]he suggesting party must
serve other parties and nonparty successors or representatives of the
deceased with a suggestion of death in the same manner as required for
service of the motion to substitute. Thus, a party may be served the
suggestion of death by service on his or her attorney, Fed. R. Civ. P. 5(b),
while non-party successors or representatives of the deceased party must
be served the suggestion of death in the manner provided by Rule 4 for
the service of a summons.”) (emphasis added) (internal citation omitted);
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Fariss v. Lynchburg Foundry, 769 F.2d 958, 961 (4th Cir. 1985) (“Where,
as here, a personal representative has been appointed following the death
of a party, the suggestion of death must be personally served on that
representative.”). “Personal service of the suggestion of death alerts the
nonparty to the consequences of death for a pending suit, signaling the
need for action to preserve the claim if so desired.” Fariss, 769 F.2d at
962.
Service of the notice of death on the personal representative for a
deceased-plaintiff's estate is generally required, even where it is difficult
to determine who the personal representative is. Id. (“In some instances,
it may prove more difficult to determine whom to serve, but it is generally
appropriate to require the serving party to shoulder that burden, rather
than permitting the absence of notice to decedent's representative to lead
to forfeiture of the action.”). Service on the attorney for the
plaintiff-decedent’s estate will not suffice as service on the estate.
Grandbouche v. Lovell, 913 F.2d 835, 837 (10th Cir. 1990) (holding that
even though the attorney for the decedent's estate was noticed, the
successor or representatives of the deceased-party’s estate were required
to be noticed as well).
Sampson, 780 F.3d at 681 (emphasis added); see Ransom v. Brennan, 437 F.2d 513,
519 (5th Cir. 1971) ( “Assuming the executrix had such actual notice [of the
Suggestion of Death], which plaintiff infers she must have had, it would not operate
as a substitute for process.”); see also Fariss, 769 F.2d at 962 (the burden is on the
shoulder of the serving party rather than allowing the forfeiture of an action due to
the absence of notice to a decedent’s representative).
The Court recognizes Defendant’s efforts to discern whether there has been
an estate opened; however, Defendant did not provide proper notice to “decedent’s
successor or representative” as required under Rules 4 and 25. See FED. R. CIV. P.
4, 25(a)(1). Therefore, the Court finds that the Motion [20] and Supplemental
Motion [21], should be denied without prejudice. See Sampson, 780 F.3d at 681-83;
see also FED. R. CIV. P. 4, 25. Accordingly,

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IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendant
David Kilgore’s Motion to Dismiss [20] and Supplemental Motion to Dismiss [21]
are DENIED WITHOUT PREJUDICE to Defendant’s right to re-file upon proper
compliance with Rules 4 and 25 of the Federal Rules of Civil Procedure.
SO ORDERED AND ADJUDGED, this the 3rd day of June, 2016.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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