McCutchen v. Sumner County Sheriff's Office, et al.

Filing 60

MEMORANDUM AND ORDER: For these reasons, the defendants are ORDERED to file a notice by May 13, 2019, demonstrating that service of the suggestion of death has been effected on Deborah Reecer in compliance with Federal Rule of Civil Procedure 4 or providing an update regarding the status of their efforts to effect such service. Signed by Magistrate Judge Alistair Newbern on 4/17/2019. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JAMES RICHARD McCUTCHEN,
Plaintiff,

Case No. 3:16-cv-00763

v.

Chief Judge Waverly D. Crenshaw, Jr.
Magistrate Judge Alistair E. Newbern

SUMNER COUNTY SHERIFF’S OFFICE, et
al.,
Defendants.

MEMORANDUM ORDER
On July 23, 2018, the Magistrate Judge ordered Defendants Sonny Weatherford, Sonya
Troutt, Tim Adcock, and Michael Copeland (the Sumner Defendants) and Defendant Southern
Health Partners to make a good-faith effort to identify the late Plaintiff James Richard
McCutchen’s successor or representative and to serve any identified person with a suggestion of
death in compliance with Federal Rule of Civil Procedure 4. (Doc. No. 58.) On August 14, 2018,
the defendants notified the Court that they had identified two women who they believe could be
McCutchen’s mother and sister and that they successfully served the mother, but not the sister, by
certified mail. (Doc. No. 59.) Because the defendants have not yet served the suggestion of death
on the woman whom they have identified as McCutchen’s sister, the defendants will be
ORDERED to effect service on her in compliance with Rule 4.
I.

Factual and Procedural Background
McCutchen filed this civil rights action under 42 U.S.C. § 1983 on April 21, 2016, alleging
that, while he was housed as a pre-trial detainee at the Sumner County Jail, he was denied
recreation, access to the media, and proper medical care, and further alleging that he was assaulted

by several sheriff’s deputies on September 2, 2015. (Doc. No. 1.) The defendants answered
McCutchen’s complaint (Doc. Nos. 14, 22), the Court issued a scheduling order (Doc. No. 27),
and the parties began discovery. On November 17, 2017, the Court stayed this action pending the
conclusion of related criminal proceedings against McCutchen. (Doc. No. 55.)
On May 16, 2018, the defendants jointly filed a suggestion of death, notifying the Court
that McCutchen passed away on May 14, 2018. (Doc. No. 57.) As documentation, the defendants
filed a copy of the Tennessee Department of Correction’s Felony Offender Information Look Up
record for McCutchen, which lists his supervision status as “deceased.” (Doc. No. 57-1.) On
July 23, 2018, the Magistrate Judge ordered the defendants to make a good-faith effort to identify
McCutchen’s successor or representative and serve him or her with the suggestion of death in
compliance with the Federal Rules of Civil Procedure. (Doc. No. 58.) The defendants were ordered
to notify the Court of the status of their efforts by August 15, 2018. (Id.)
On August 14, 2018, the defendants filed a joint notice stating that they contacted the
“Sumner and Davidson County probate courts to ascertain if an estate was opened in Plaintiff’s
name” and that “[n]o estate was found.” (Doc. No. 59, PageID# 204.) The defendants then searched
McCutchen’s jail record for any listed relatives and “conducted a person search using Plaintiff’s
name on LexisNexis.” (Id. at PageID# 205.) As a result of these efforts, the defendants identified
two possible successors: “Wanda McCutchen (believed to be Plaintiff’s mother) and Deborah
Reecer (believed to be Plaintiff’s sister).” (Id.) On July 31, 2018, the defendants sent letters via
certified mail to Ms. McCutchen and Ms. Reecer at what appear to be residential addresses in
Tennessee, attaching copies of the suggestion of death, Plaintiff’s complaint, and the Court’s July
23, 2018 order. (Id.) Ms. McCutchen signed a return receipt for the letter on August 2, 2018. (Doc.

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No. 59-2.) The post office was unable to deliver the letter to Ms. Reecer. (Doc. No. 59.) The
defendants state that they received no response from Ms. McCutchen or Ms. Reecer. (Id.)
II.

Legal Standard
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. 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.
Fed. R. Civ. P. 25(a)(1). As the Court explained in its prior order, Rule 25 thus establishes a twostep procedure “that protects those who have an interest in the litigation and the authority to act on
behalf of the decedent by permitting substitution for the deceased party without unduly burdening
the surviving party.” Lawson v. Cty. of Wayne, No. 11-11163, 2012 WL 5258216, at *2 (E.D.
Mich. Oct. 23, 2012) (quoting Gruenberg v. Maricopa Cty. Sheriff’s Office, No. 06-0397, 2008
WL 2001253, at *1 (D. Ariz. May 7, 2008)). First, the notice of death must be filed on the record.
Id. Second, the notice must be served on all parties in accordance with Rule 5 and all non-parties
in accordance with Rule 4. Id.; Fed. R. Civ. P. 25(a)(3).
As relevant here, Federal Rule of Civil Procedure Rule 4(e) sets forth several avenues for
serving an individual within a judicial district of the United States. Fed. R. Civ. P. 4(e).
Rule 4(e)(1) provides that service may be made by “following state law for serving a summons . . .
in the state where the district court is located or where service is made[.]” Fed. R. Civ. P. 4(e)(1).
Service of a suggestion of death on a non-party may also be effected under Rule 4(e)(2) by:
(A) delivery a copy of the [notice] to the individual personally;
(B) leaving a copy of [the notice] at the individual’s dwelling or usual place of
abode with someone of suitable age and discretion who resides there; or

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(C) delivery a copy of [the notice] to an agent authorized by appointment or by law
to receive service of process.
Fed. R. Civ. P. 4(e)(2).
III.

Analysis
The defendants have not assert that they have served either Ms. McCutchen or Ms. Reecer
in compliance with Rule 4. (Doc. No. 59.) Instead, they state that they have made “a good faith
effort to locate Plaintiff’s successors or representatives and that at least one of them has been
notified of the Joint Suggestion of Death.” (Id. at PageID# 205 (emphasis added).) Notice,

however, is not what Rule 25 or this Court’s Order require. Consequently, the Court must
determine whether the defendants have served Ms. McCutchen and Ms. Reecer in compliance with
Rule 4.
It appears that the defendants’ service of the suggestion of death on Ms. McCutchen
complies with Rule 4(e)(1). Tennessee Rule of Civil Procedure 4.04(10) provides for service by
mail, Tenn. R. Civ. P. 4.04(10), and Tennessee courts permit service of a suggestion of death in
this manner, see Dry v. Steele, No. E2013-00291-COA-R3-CV, 2014 WL 295777, at *4 (Tenn.
Ct. App. Jan. 28, 2014) (holding that suggestion of death mailed to and received by decedent’s
surviving spouse was properly served under Tenn. R. Civ. P. 25.01).
However, the defendants concede that Ms. Reecer has not yet been served with the
suggestion of death. (Doc. No. 59.) They state that “[s]ervice was attempted on Ms. Reecer but
was unsuccessful.” (Id. at PageID# 205.) They have not explained why no further service attempts
were made. Having identified Ms. Reecer as a potential successor to Plaintiff’s claims, the
defendants must serve her in compliance with Rule 4 or attest to the Court that such service is not
possible.

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IV.

Conclusion
For these reasons, the defendants are ORDERED to file a notice by May 13, 2019,
demonstrating that service of the suggestion of death has been effected on Deborah Reecer in
compliance with Federal Rule of Civil Procedure 4 or providing an update regarding the status of
their efforts to effect such service.
It is so ORDERED.

____________________________________
ALISTAIR E. NEWBERN
United States Magistrate Judge

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