Boyd v. Johnson Food Service et al

Filing 68

ORDER re 67 Suggestion of Death filed by Johnson Food Services LLC(Service due by 11/19/2019). Signed by Magistrate Judge Shiva V. Hodges on 10/29/2019. (lbak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Valerie M. Boyd,
Plaintiff,
vs.
Johnson Food Service, LLC;
Trinity Foods, Inc. d/b/a Military
Food and Beverage; and Preston
Wider, III,
Defendants.

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C/A No.: 3:17-3414-JMC-SVH

ORDER ON NOTICE OF
SUGGESTION OF DEATH

This case comes before the court on the Suggestion of Death of defendant
Preston Wider (“Wider”), as indicated by Wider’s counsel. [ECF No. 67]. 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
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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, 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 Wider’s successors or other representatives pursuant to Fed. R.
Civ. P. 4. 1 Therefore, Wider’s counsel is instructed to serve a copy of its
Suggestion of Death [ECF No. 67] and this order, pursuant to Fed. R. Civ. P. 4,
on any known nonparty successor or representative of Wider and to file proof
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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of said service by November 19, 2019. If no party files a motion for substitution
within 90 days from the service of the personal representative, the action
against Wider 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 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.

October 29, 2019
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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