Jones v. Higgins et al

Filing 74

ORDER directing Clerk of Court seal the Attachment #1 of 73 Suggestion of Death filed by deceased Pltf's Attorney of Record; in that an attorney for a deceased party does not have the authority to make the suggestion of death because he is not himself a party to the action and, since his authority to represent the deceased terminated on the death, a proper suggestion of death must be filed by Defts or personal representative of Pltf's estate. Signed by Magistrate Judge Dennis Howell on 2/06/2018. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:16CV409
TALMAGE LEE JONES, JR.,
Plaintiff,
v.
JASON ANTHONYHIGGINS, G & R
TRUCKING COMPANY, INC., and
CMH MANUFACTURING, INC.,
Defendants.
CMH MANUFACTURING, INC.,
Third Party Plaintiff,
v.
HOYLE’S TIRE AND AXLE, LLC,
Third Party Defendant.
___________________________________

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

ORDER

This matter is before the Court sua sponte. On January 25, 2018, the Court scheduled a
hearing to address various pending motions (# 54, 62, 70) in this case where the parties have
consented to the undersigned serving as the presiding Judge. At 1:28 p.m. on February 5, 2018,
Plaintiff’s counsel filed a Suggestion of Death, which states that Plaintiff died on January 12, 2018.
This filing creates several issues for the Court to address.
At the outset, the Court notes that the hearing scheduled for today had to be cancelled
because Plaintiff’s counsel no longer has the authority to act on behalf of the deceased Plaintiff.
Coppinger v. Schantag, No. DKC 2005-2380, 2006 WL 38946, at *1 (D. Md. Jan. 5, 2006) (noting
that the attorney-client relationship is like any other agency relationship in that an agent’s authority

terminates upon death of the principal).
Next, the Suggestion of Death has Plaintiff’s death certificate filed as an attachment. The
death certificate plainly states Plaintiff’s social security number. Therefore, the Clerk of Court is
DIRECTED to seal this filing. See (# 73-1).
Finally, the Suggestion of Death does not constitute a suggestion of death on the record.
An attorney for a deceased party does not have the authority to make the suggestion of death
because “he is not himself a party to the action and, since his authority to represent the deceased
terminated on the death.” Coppinger, 2006 WL 38946, at *1 (quotation omitted). In sum, a proper
suggestion of death must be filed by Defendants or the personal representative of Plaintiff’s estate.
See id. at 2.
Signed: February 6, 2018

2