Odom et al v. City of Columbia Police Department

Filing 10

ORDER instructing Plaintiff's counsel to serve a copy of its Suggestion of Death [ECF No. 8] and this order, pursuant to Fed. R. Civ. P. 4, on any known personal representative of Case and to file proof of said service by December 4, 2015. If no party files a motion for substitution within 90 days from the service of the personal representative, Cases action will be dismissed. Signed by Magistrate Judge Shiva V Hodges on 11/20/2015. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Wynter Odom, Stacy Case, and
Kimberly Wise-Lewis,
Plaintiffs,
vs.
City of Columbia Police Department,
Defendant.

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C/A No.: 3:15-4313-MGL-SVH

ORDER ON
SUGGESTION OF DEATH
OF PLAINTIFF

This employment case comes before the court on the Suggestion of Death of
plaintiff Stacey Case (“Case”), as indicated by Case’s counsel. [ECF No. 8].1 This case
has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and
Local Civ. Rule 73.02(B)(2)(g) (D.S.C.).
Pursuant to Fed. R. Civ. P. 25(a)(1), “if a party dies and the claim is not
extinguished, the court may order substitution of the proper party.” The rule states that “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.” Id. “In order
to commence the running of the ninety-day period, the suggesting party must personally
serve the suggestion of death on the decedent’s personal representative, if appointed, or
on the successors or representatives of the decedent.” Brooks v. Arthur, No. 6:08-cv-28,

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Although ECF No. 8 is titled a motion for an extension to dismiss, it notes that Plaintiff
is deceased.

2011 WL 1212254, *1 (W.D.Va. Mar. 30, 2011) (citing Fariss v. Lynchburg Foundry,
769 F.2d 958, 961–62 (4th Cir. 1985) (“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.”)). In Fariss, the Fourth Circuit found that service of
the suggestion of death on the decedent’s attorney alone was insufficient. Fariss, 769
F.2d at 962.
There is no indication on the record that the Suggestion of Death has been served
on Case’s personal representative or any successors or other representatives ofCase.2
Therefore, Plaintiff’s counsel is instructed to serve a copy of its Suggestion of Death
[ECF No. 8] and this order, pursuant to Fed. R. Civ. P. 4, on any known personal
representative of Case and to file proof of said service by December 4, 2015. If no party
files a motion for substitution within 90 days from the service of the personal
representative, Case’s action will be dismissed.
The court notes that before Fed. R. Civ. P. 25(a) can be employed to substitute a
new party for a deceased party, the substantive law controlling the suit must allow for
survival of the cause of action. Where the cause of action does not survive the death of a

The successors or representatives of the decedent are “those empowered to assert any
legal claims of the decedent not extinguished by death, or to defend the estate against
others’ claims.” Fariss at 962; see also Atkins v. City of Chicago, 547 F.3d 869, 873 (7th
Cir. 2008) (“[A]n obviously interested non-party . . . must be served for the 90-day clock
to start running.”); Torres v. Bayer Corp. (In re Baycol Prods. Litig.), 616 F.3d 778, 784–
85 (8th Cir. 2010) (“[U]nder certain circumstances, a person may be a ‘successor’ under
Rule 25(a)(1) if she is (1) the primary beneficiary of an already distributed estate; (2)
named in a will as the executor of the decedent’s estate, even if the will is not probated;
or (3) the primary beneficiary of an unprobated intestate estate which need not be
probated.”).
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party, there can be no substitution for that party under the rule. See, e.e., Asklar v.
Honeywell, Inc., 95 F.R.D. 419, 422 (D. Conn. 1982) (holding substantive law, not Rule
25(a), determines whether case may proceed after death of party).
IT IS SO ORDERED.

November 20, 2015
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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