Lampton v. Diaz et al

Filing 209

ORDER granting 187 Motion to Substitute Party; granting 206 Motion for Extension of Time to File Response/Reply. The Estate of Dunnica Lampton is hereby substituted for Dunnica Lampton as the sole defendant in this action. Signed by District Judge Carlton W. Reeves on 10/2/2012. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
OLIVER DIAZ; JENNIFER DIAZ

PLAINTIFFS

v.

Cause No. 3:09-cv-324-CWR-MTP

DUNNICA LAMPTON

DEFENDANT
ORDER

Before the Court are the plaintiffs’ motion to substitute, Docket No. 187, the defendant’s
motion to dismiss, Docket No. 204, and the plaintiffs’ motion for an extension of time, Docket No.
206. The plaintiffs’ motion to substitute will be granted, as will their motion for an extension of
time. They will have 14 days to respond to the motion to dismiss.
I.

Factual and Procedural History
Although this case has a lengthy procedural history, see Diaz v. Lampton, No. 3:09-cv-324,

2012 WL 2376286, *1 (S.D. Miss. June 22, 2012), at heart, plaintiffs Oliver and Jennifer Diaz claim
that defendant Dunnica Lampton is liable for releasing their confidential tax information to the
Mississippi Commission on Judicial Performance. Docket No. 199, at 2. Because Lampton died
on August 17, 2011, see Docket No. 172, the present question is whether the plaintiffs may maintain
any of their claims against Lampton’s estate (the “Estate”).
Specifically, Oliver Diaz wishes to proceed with his causes of action for abuse of process,
malicious prosecution, emotional distress, invasion of privacy, and 42 U.S.C. § 1983 (based upon
Lampton’s alleged violations of 18 U.S.C. § 1905, 26 U.S.C. § 6103, and 26 U.S.C. § 7213 – civil
and criminal laws that protect against unauthorized disclosure of tax information).1 Docket Nos. 33,
at 13-17; 200, at 1-3. Jennifer Diaz wishes to proceed with “all her original claims.” Docket No.
200, at 3. This Court previously found that her claims included “procurement of tax records in
violation of 26 U.S.C. §§ 6103 and 7431, 42 U.S.C. §§ 1983 and 1985, and Mississippi statute and
common law; invasion of privacy; abuse of process; civil conspiracy; misprision; and the tort of
outrage.” Docket No. 103, at 3; see Docket No. 28, at 130.
II.

Legal Standards

1

Oliver Diaz wishes to drop his 42 U.S.C. § 1985 conspiracy claim. Docket No. 200, at 3.

Federal Rule of Civil Procedure 25 provides that “[i]f a party dies and the claim is not
extinguished, the court may order substitution of the proper party.” Fed. R. Civ. P. 25(a)(1).
“[W]hether a cause of action survives the death of the defendant is determined by the law of the
jurisdiction in which the cause of action arose.” Ransom v. Brennan, 437 F.2d 513, 520 (5th Cir.
1971) (citations omitted); see 4C Wright et al., Fed. Practice & Procedure § 1954 (3d. ed. updated
Sept. 2012). This Court looks “to the statute of the appropriate state and to the interpretation given
the statute by court decisions.” Wright et al. § 1954.
III.

Discussion
Our case involves both state and federal causes of action. They will be addressed in turn.
Mississippi law provides that “[w]hen either of the parties to any personal action shall die

before final judgment, the executor or administrator of such deceased party may prosecute or defend
such action, and the court shall render judgment for or against the executor or administrator.” Miss.
Code § 91-7-237. “Mississippi courts have defined a ‘personal action’ as including actions ‘for the
recovery of damages for the commission of an injury to the person or property.’” Tyus v. RCG
Mississippi Inc., 168 F.3d 485, *2 n.1 (5th Cir. 1999) (unpublished table opinion) (quoting Powell
v. Buchanan, 147 So. 2d 110, 111 (Miss. 1962)); see also Jackson & Miller, 4 Encyclopedia of
Mississippi Law § 33:36 (2001). “As a practical matter, the term ‘personal actions’ refers to all
actions except defamation actions.” Weems & Weems, Mississippi Law of Torts § 14:20 (2d ed.
2008) (collecting cases); see also Robert A. Weems, Wills and Administration of Estates in
Mississippi § 2:33 (3d ed. 2003).
In our case, the plaintiffs claim they were injured by Lampton’s invasion of their personal
privacy based upon wrongful sharing of their tax returns. Each of their state law causes of action
constitutes a “personal action” as that term is understood in Mississippi law. These claims survive
and may be maintained against Lampton’s estate.
“The Supreme Court has held that the survival of actions brought pursuant to 42 U.S.C. §
1983 is to be determined by the law of the forum state.” Caine v. Hardy, 943 F.2d 1406, 1410 (5th
Cir. 1991) (en banc) (citations omitted) (applying law of the forum state, Mississippi). One way to
determine if a § 1983 suit survives “is to examine the facts of each separate § 1983 claim and
characterize it according to the most analogous state-law cause of action.” Id. Here, the plaintiffs’
§ 1983 claim is grounded in factual allegations similar to their invasion of privacy and abuse of
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process causes of action, which suggests that it survives. Further, when the Fifth Circuit considered
an alternate “way to apply the definition of personal action,” it “eas[ily]” concluded that “all § 1983
actions are actions ‘for the recovery of damages for the commission of an injury to the person’
within the scope of [Miss. Code] § 91-7-237.” Id. at 1411 (citations omitted). Under either
approach, then, the plaintiffs’ § 1983 claim is a personal action that survives.
Although no party has yet been substituted for Lampton, his Estate was granted leave to brief
why none of the plaintiffs’ claims survive. Docket No. 199, at 4-5. The Estate’s arguments against
substitution were considered in the above analysis and need no further response. But the Estate’s
contention that it was not properly served merits discussion.
Earlier in this suit, counsel for Lampton wrote “that he did not intend to open an estate so
that the Diazes could simply file a claim therein and/or join that estate as a Third-Party Defendant
in this lawsuit.” Docket No. 178, at 4.2 Instead, he argued, the Diazes had the burden “not only to
force open an estate, but also to secure service over the executor or administrator with a scire facias
or summons before the court can proceed.” Id. at 3.
The record reveals that counsel’s wish was granted. As this Court recited in an earlier Order,
in February 2012, the plaintiffs opened an estate for Lampton in Hinds County,
Mississippi. Docket No. 187. The Estate’s Temporary Administrator is Eddie Jean
Carr, the Chancery Clerk of Hinds County. Id. The Temporary Administrator has
waived formal service of the summons, complaint, motion to substitute, and notice
of hearing, and received copies of each of those documents. Docket Nos. 187-3;
187-4. The waivers of service set forth certain deadlines for the Estate to have
responded to the complaint and the pending motion; those deadlines have now
passed without response. Docket Nos. 187-3; 187-4.
Docket No. 199, at 3, available at 2012 WL 2376286, at *2.
In short, when Lampton’s attorney declined to open an estate that could be served and invited
the plaintiffs to take that step, the plaintiffs accepted, opened, and properly served the Estate with
all necessary documents. That was sufficient. The fact that Lampton’s counsel later decided to
open an estate – which has now replaced the prior temporary entity, see Docket No. 201 and Miss.
Code § 91-7-87 – does not change that the plaintiffs diligently pursued their claims in accordance
with the Rules. Substitution is proper.

2

The same attorney has represented Lampton, and now the Estate, throughout this suit.

3

As a final matter, the Estate’s contention regarding the survival of punitive damages will be
denied without prejudice. The argument may be reasserted at a later point in the proceedings.
IV.

Conclusion
The plaintiffs’ motions to substitute and for an extension of time are granted. The Estate of

Dunnica Lampton is hereby substituted for Dunnica Lampton as the sole defendant in this action.
The plaintiffs shall have 14 days from today to respond to the pending motion to dismiss.
SO ORDERED, this the second day of October, 2012.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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