Snider v. L-3
Filing
329
ORDER denying 316 Motion to Substitute Party. Signed by District Judge Henry T. Wingate on 03/29/2021 (nd)
Case 3:09-cv-00704-HTW-LGI Document 329 Filed 03/29/21 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
COURTNEY PAINE SNIDER
PLAINTIFF
V.
CIVIL ACTION NO. 3:09-cv-704-HTW-LRA
VERTEX AEROSPACE, LLC
DEFENDANT/COUNTER-PLAINTIFF
V.
COURTNEY PAINE SNIDER; WOMBLE
BOND DICKINSON (US), LLP; and
CHARLES A. EDWARDS
COUNTER-DEFENDANTS
ORDER
Before this court is the Motion to Substitute the Estate of Charles A. Edward for
Counterclaim Defendant Charles A. Edwards [Docket no. 316], filed by Vertex Aerospace, LLC
(“Vertex”), formerly operating under the business name L-3 Communications Vertex Aerospace,
LLC 1. Vertex, by way of its Motion, has petitioned this court to substitute the Estate of Charles
A. Edwards for the deceased Counterclaim Defendant Charles A. Edwards (“Edwards”).
Counterclaim Defendant Womble Bond Dickinson (US) LLP (“Womble”), formerly
operating as Womble, Carlyle, Sandridge & Rice LLP 2, opposes Vertex’s requested substitution,
as demonstrated in its Response in Opposition [Docket no. 319]. Edwards’s son, and Executor of
his Will, Lee McNeil Edwards, also opposes Vertex’s motion to substitute [Docket no. 325].
Executor Lee McNeil Edwards (“the Executor”) has entered a limited appearance in this matter
“to contest substitution for reasons of jurisdictional and process defects only” [Docket no. 325].
1
See Docket no. 327, Order substituting proper party, dated 03/05/2021.
2
See Docket no. 326, Order substituting proper party, dated 03/05/2021.
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Vertex has filed this motion to substitute under the auspices of Federal Rule of Civil
Procedure 25(a) 3, which states that “[i]f a party dies and the claim is not extinguished, the court
may order substitution of the proper party”. The Rule explains further that any party, or the
decedent’s successor or representative, may make this motion to substitute “within 90 days after
service of a statement noting the death.” The parties herein disagree as to the proper interpretation
of Rule’s FRCP 25(a), and request this court determine whether Vertex filed its motion to
substitute sub judice in a timely fashion and in lockstep with the requirements of FRCP 25(a).
I.
BACKGROUND
This lawsuit originated in 2009 as an employment discrimination action by Courtney Paine
Snider (“Snider”) against L-3/Vertex. [Docket no. 1]. Vertex then brought counterclaims against
Snider, Womble, and Edwards, on February 15, 2012. [Docket no. 127]. Edwards, sadly, passed
away on September 10, 2015. The parties, and this court, were provided with a copy of Edwards’s
Death Certificate by a letter to the court, dated September 23, 2015.
This court entered its final judgment, dismissing counterclaimant Vertex from this lawsuit
with prejudice, on October 17, 2016. [Docket no. 293]. Vertex appealed this court’s judgment to
the United States Court of Appeals for the Fifth Circuit, on October 27, 2016. [Docket no. 294].
Federal Rule of Civil Procedure 25(a) states:
(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 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.
3
Fed. R. Civ. P. 25
2
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Subsequently, on November 28, 2016, this court ordered this matter stayed pending the Fifth
Circuit’s resolution of the appeal. [Docket no. 310].
The Fifth Circuit remanded this case to this court on January 22, 2020, affirming in part,
and reversing in part, this court’s judgment. [Docket nos. 312 and 313]. The Executor filed a
Suggestion of Death on the record a few days later, on January 27, 2020. [Docket no. 315]. The
Suggestion of Death states:
1. Charles A. Edwards died on September 10, 2015.
2. Statements noting the death of Charles A. Edward were previously served and/or
communicated to all parties remaining in this action on at least two prior occasions 4.
All parties have been on notice of Mr. Edwards’ death for over four years.
3. Lee McNeil Edwards, the son of Charles A. Edwards, is, by operation of the Will of
Charles A. Edwards, the Executor of his Estate. Lee McNeill Edwards has also served
as the Estate collector by affidavit since October 20, 2015.
[Docket no. 315, p. 1, ¶¶ 1-3].
Vertex filed its Motion to Substitute on March 3, 2020. This Motion, alleges Vertex, is
timely because the 90-day clock did not begin to run until the Executor filed its Suggestion of
Death on the record, on January 27, 2020.
II.
ANALYSIS
The parties point to the Advisory Committee Notes to the 1963 Amendment to FRCP 25(a),
which state, in pertinent part:
The amended rule establishes a time limit for the motion to substitute based not upon the
time of the death, but rather upon the time information of the death is provided by means
of a suggestion of death on the record, i.e., service of a statement of the fact of death…
The Advisory Committee Notes further explain:
The only communication regarding Edwards’s death referenced in the parties’ briefs, and during oral arguments on
March 5, 2021, is the September 23, 2015, letter noted supra. This court, however, notes that the statements in the
Suggestion of Death have not been disputed by any party.
4
3
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A motion to substitute may be made by any party or by the representative of the deceased
party without awaiting the suggestion of death. Indeed, the motion will usually be so made.
If a party or the representative of the deceased party desires to limit the time within which
another may make the motion, he may do so by suggesting the death upon the record.
A motion to substitute made within the prescribed time will ordinarily be granted, but under
the permissive language of the first sentence of the of the amended rule (“the court may
order”) it may be denied by the court in the exercise of a sound discretion if made long
after the death—as can occur if the suggestion of death is not made or is delayed—and
circumstances have arisen rendering it unfair to allow substitution. Cf. Anderson v.
Yungkau, supra, 329 U.S. at 485, 486, 67 S. Ct. at 430, 431, 91 L. Ed. 436, where it was
noted under the present rule that settlement and distribution of the estate of a deceased
defendant might be so far advanced as to warrant denial of a motion for substitution even
though made within the time limit prescribed by that rule 5. Accordingly, a party interested
in securing substitution under the amended rule should not assume that he can rest
indefinitely awaiting the suggestion of death before he makes his motion to substitute.
Vertex cites the several cases in support of its contention that the 90-day window for
moving to substitute a party after death began to run on January 27, 2020, at the time the
Suggestion of Death was filed on the record: Hollowell v. Town of Stone Wall, No. 4:10-cv-204,
2011 U.S. Dist. LEXIS 154183, at *1 (S.D. Miss. Dec. 5, 2011) (“Because the Suggestion of Death
was filed on August 12, 2011, the ninety day period for filing a motion to substitute parties expired
on or about November 10, 2011.”); Busick v. Hatten, 3:10-cv-190, 2011 U.S. Dist. LEXIS 78579,
at *2 (S.D. Miss. June 21, 2011) (“Because the Suggestion of Death was filed on March 8, 2011,
the ninety day period for filing a motion to substitute parties expired on or about June 8, 2011.”);
accord Schmidt v. Merrill Lynch Trust Co., No. 5:07-cv-382, 2008 U.S. Dist. LEXIS 114674, at
*5 (M.D. Fla. June 2, 2008) (“In the absence of a legally sufficient statement of death on the record,
the 90 day deadline in Rule 25(a) does not begin to run.”).
The United States Supreme Court in Anderson found that the federal law embodied in Rule 25(a) has a
direct impact on the probate of estates in the state courts, thus, it should not be construed to be more
disruptive of prompt and orderly probate administration in those courts than its language makes
necessary. Anderson v. Yungkau, 329 U.S. 482, 486 (1947).
5
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Vertex alleges that Womble has no standing to oppose its motion to substitute. [Docket no.
321, pp. 1-2]. Vertex then, contrary to its own statement, alleges because Rule 25(a)(1) permits
“any party” to seek the requested relief, either Womble or Edwards’s Estate could have filed a
Suggestion of Death, or otherwise “raised this issue almost five years ago to start the Rule 25 clock
or to move the issue out of limbo.” [Docket no. 321, p. 3].
This court, as a preliminary matter, finds that Womble does have standing to oppose
Vertex’s motion to substitute. The language of Rule 25 mandates service of the motion to substitute
on all parties and allows for a party other than the deceased’s legal representative to object to the
substitution. Womble also has standing to object due to the nature of Vertex’s counterclaims,
which allege civil conspiracy, and joint and several liability of Edwards, Womble, and Snider.
[Docket no. 127].
This court now turns to the merits of Womble’s opposition to the motion to substitute.
Womble, in its opposition memorandum, contends that Vertex had a right to move to substitute
Edwards’s Estate since the time of Edwards’s death on September 10, 2015. “It is not necessary”,
says Womble, “that a notation of the fact of death be made on the record before a motion for
substitution can be made.” 7C Charles Alan Wright et al, Federal Practice and Procedure § 1956
687 (3d ed. 2005).
Womble points next to a case from this district, Ashley v. Illinois Central Gulf Railroad
Company, 98 F.R.D. 722 (S.D. Miss. 1983), where United States District Judge Barbour found a
lack of diligence and dismissed the matter because plaintiff, among other things, failed to substitute
a proper party for the deceased party from the time of death on April 11, 1982, until the defendant
filed a Suggestion of Death, on September 18, 1982 (a period of about 5 months). The court
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dismissed the matter also because plaintiff therein waited until the 89th day after the filing of the
Suggestion of Death to file his Motion for Substitution of Party.
Further, argues Womble, there are state law reasons, Mississippi state law favors a denial
of Vertex’s motion to substitute. Miss. Code Ann. § 91-7-235 provides as follows:
When any decedent shall in his lifetime have committed any trespass, the person injured,
or his executor or administrator, shall have the same action against the executor or
administrator of the decedent as he might have had or maintained against the testator or
intestate, and shall have like remedy as in other actions against executors and
administrators. Vindictive damages shall not be allowed, and such action shall be
commenced within one year after publication of notice to creditors to probate and register
their claims.
Womble points also to Miss. Code Ann. § 15-1-25, which sets a 4-year statute of repose
as to any action against the estate of a deceased defendant. § 15-1-25 provides in full:
An action or scire facias may not be brought against any executor or administrator upon
any judgment or other cause of action against his testator or intestate, except within four
years after the qualification of such executor or administrator.
This court, however, finds that both Mississippi legal code sections cited by Womble apply
to actions “commenced” (§ 91-7-235) or “brought against” (§ 15-1-25) a deceased wrongdoer’s
estate. These sections, thus, do not apply to the case at bar, since Vertex filed its counterclaim
against Edwards more than three years before his death. [Docket no. 128]. Rather than
commencing a lawsuit against Edwards’s estate, Vertex, now seeks to substitute the Estate of
Charlie Edwards as the alleged proper legal representative of the initial responsible party, the late
Charles Edwards.
Womble argues, lastly, that Vertex has no claim for punitive damages or emotional distress
damages against the Estate of Charlie Edwards; therefore, there exist no viable damages to Vertex
in this matter. Mervin v. Wolverton, 211 So. 2d 847, 848 (Miss. 1968) (. . . “but the realm of the
dead is not invaded, and punishment visited upon the dead.”), Kaplan v. Harco Nat. Ins. Co., 716
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So. 2d 673, 679 (Miss. Ct. App. 1998) (“A statute [citing § 91-7-235] makes clear that a punitive
damage claim against a party who dies before judgment, also dies”); and Wilbanks v. Gray, 795
So. 2d 541, 548 (Miss. Ct. App. 2001) (“As to the estate of Mrs. Wilbanks, Miss. Code Ann. § 917-235 (Rev. 2000) does not allow the recovery of punitive damages against an estate because of a
prior tort committed by the decedent.”).
This court, finds, however, that in addition to punitive damages, Vertex’s counterclaim
requests “actual,” “incidental,” and “consequential” damages, along with “attorneys’ fees” and
“[d]isgorgement of all [legal] fees” collected by the Counterclaim Defendants. [Docket no. 128,
p. 27]. Because these damages have been requested and are available to Vertex, should this court
grant Vertex’s motion to substitute, Edwards’s estate would be liable for these damages to the
extent that Edwards would have been liable during his life.
This court finally turns to the Executor’s objections to Vertex’s motion to substitute. The
Executor argues that Edwards’s personal effects and debts were long ago administered in
accordance with North Carolina’s small estate “affidavit by collector” proceedings 6. Thus, says
the Executor, the time for asserting a claim against the Estate of Charles Edwards has long passed,
and substitution at this late stage would frustrate the purposes of Rule 25. In support of its stance,
the Executor again points to the Advisory Notes’ reference to the United States Supreme Court
case of Anderson v. Yungkau, where it was noted that settlement and distribution of the estate of
a deceased defendant might be so far advanced as to warrant denial of a motion for substitution
even though made within the time limit prescribed by Rule 25.
“Collection by Affidavit” is a process recognized under the probate laws of the State of North Carolina,
which applies to estates of small value.
6
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Further, claims the Executor, this court should disallow this substitution because Vertex
has failed to fulfill its service requirements under Rule 25(a)(3) 7, which states: “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.”
“Rue 25(a) sets forth various requirements about who may make the motion to substitute,
who it must be served upon, how it must be served, and when it must be made in order to avoid
dismissal.” Fed. R. Civ. P. 25 cmt; A motion to substitute is not valid unless it is “served, together
with a notice of hearing . . . on nonparties as provided in Rule 4.” See Fed R. Civ. P. 25(a). “Rule
4 service is needed to establish the court’s personal jurisdiction over the new party.” Fed. R. Civ.
P. 25 cmt; Ransom v. Brennan, 437 F. 2d 513, 518 (5th Cir. 1971) (concluding that “Rule 4 service
of the motion to substitute is for the purpose of acquiring personal jurisdiction over non-parties,
and Rule 5 service of the motion is not sufficient to acquire such jurisdiction and cannot be
employed in lieu of Rule 4.”). The putative successor, until substituted, is a “non-party”. See
Ransom, 437 F. 2d at 517. As with other instances of process, service upon the non-party’s counsel
is generally ineffective, and actual notice of the non-party is irrelevant. See Ransom (rejecting
argument that service upon attorney of executrix sought for substitution satisfied service
requirement since “service of process on an attorney is not effectual solely by reason of his capacity
as an attorney”); Sampson v. ASC Industries, 760 F. 3d 679, 682 (5th Cir. 2015) (citing Ransom)
(“Rule 4 service [is] required even if the executrix had actual notice of the motion for
substitution.”).
7
See Footnote 3.
8
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This court, in accord with the Advisory Notes to Rule 25, finds that “a party interested in
securing substitution under the amended rule should not assume that he can rest indefinitely
awaiting the suggestion of death before he makes his motion to substitute.” 8 In the present case,
Vertex was first made aware of Edwards’s death on September 23, 2015. The Suggestion of Death
further notes that the parties had been aware of Edwards’s death for over four years before the
filing of the suggestion. This court finds that allowing the substitution of the Estate of Charles A.
Edward for the deceased counterclaim defendant Edwards at this stage, when Edwards’s Estate is
effectively closed, would unfairly prejudice the Estate.
This court further finds that Vertex’s Motion to Substitute [Docket no. 316], was filed over
a year ago, and yet, the record reflects no attempt by Vertex to serve, in any manner recognized
under Rule 4, the Motion, on a representative of the Estate. This court, therefore, finds that Vertex
has failed to follow the service requirements of Rule 25(a)(3).
Although Vertex has vigorously argued timeliness and standing issues, inter alia, those
retorts simply do not possess the bemuscled jurisprudence weighing against a reasoned grant of
the motion. Accordingly, this court must deny Vertex’s motion to substitute.
III.
CONCLUSION
IT IS THEREFORE ORDERED that Vertex’s Motion to Substitute the Estate of Charles
A. Edward for Counterclaim Defendant Charles A. Edwards [Docket no. 316] hereby is DENIED.
SO ORDERED, this the 29th day of March, 2021.
/s/HENRY T. WINGATE
UNITED STATES DISTRICT JUDGE
8
See Footnote 3.
9
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