Powell v. Oldham
Filing
259
ORDER granting 245 Motion to Substitute Party. Signed by Judge Samuel H. Mays, Jr on 10/22/2019. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
SCOTT TURNAGE, CORTEZ D.
BROWN, DEONTAE TATE, JEREMY
S. MELTON, ISSACCA POWELL,
KEITH BURGESS, TRAVIS BOYD,
TERRENCE DRAIN, and KIMBERLY
ALLEN on behalf of themselves
and all similarly situated
persons,
Plaintiffs,
v.
BILL OLDHAM, FLOYD BONNER,
JR., ROBERT MOORE, KIRK
FIELDS, CHARLENE McGHEE,
REGINALD HUBBARD, DEBRA
HAMMONS, TIFFANY WARD, SHELBY
COUNTY, TENNESSEE, TYLER
TECHNOLOGIES, INC., GLOBAL
TEL*LINK CORPORATION,
SOFTWARE AG USA, INC.,
SIERRA-CEDAR, INC., SIERRA
SYSTEMS GROUP, INC., and
TETRUS CORP.,
Defendants.
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No. 2:16-cv-2907-SHM-tmp
ORDER
Before the Court is the Plaintiffs’ September 6, 2019 Motion
for Substitution of Party.
(ECF No. 245.)
responses on September 20, 2019.
Defendants filed
(ECF Nos. 252-58.)
following reasons, the motion is GRANTED.
For the
I.
Background
Plaintiffs bring a putative class action against Shelby
County and Shelby County officials Bill Oldham, Robert Moore,
Charlene McGhee, Debra Hammons, Floyd Bonner, Jr., Kirk Fields,
Reginald Hubbard, and Tiffany Ward, in their individual and
official
capacities
(collectively,
Defendants”).
(ECF No. 218.)
corporations:
Tyler
the
“Shelby
County
Plaintiffs also sue six private
Technologies,
Inc.;
Global
Tel*Link
Corporation; Software AG USA, Inc.; Sierra-Cedar, Inc.; Sierra
Systems Group, Inc.; and Tetrus Corporation (collectively, the
“Company Defendants”).
(Id.)
Plaintiffs claim they were unlawfully detained at the Shelby
County Jail following the County’s installation of a new computer
tracking system.
(Id. ¶¶ 35-43.)
Plaintiffs bring claims for
injunctive relief, declaratory relief, and damages against the
Shelby County Defendants under 42 U.S.C. § 1983 for violations
of Plaintiffs’ Fourth and Fourteenth Amendment rights.
¶¶ 138-49,
claims
179-91.)
against
the
Plaintiffs
Company
bring
common-law
Defendants
for
(Id.
negligence
negligently
developing, installing, and implementing the County’s computer
tracking system.
(Id. ¶¶ 150-78.)
Plaintiff Issacca Powell died on February 4, 2019.
No. 245.)
(ECF
On August 22, 2019, the Shelby County Probate Court
2
appointed Aubrey L. Brown as administrator ad litem of Powell’s
estate.
(Id.)
Plaintiffs
ask
the
Court
to
substitute
Brown,
administrator ad litem of Powell’s estate, for Powell.
the
(Id.)
The Shelby County Defendants filed a response that the Company
Defendants have joined.
(ECF No. 253; see also ECF Nos. 252,
254-58.)
II.
Analysis
A.
Substitution Under Rule 25(a)(1)
Plaintiffs’ request for substitution is governed by Rule
25(a)(1) of the Federal Rules of Civil Procedure, which provides:
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.
Fed. R. Civ. P. 25(a)(1). 1
“The language of Rule 25 is permissive
and the decision to substitute a party lies within the sound
discretion of the Court.”
Watts v. Novartis Pharm. Corp., No.
08-cv-2354, 2015 WL 1456647, at *4 (N.D. Ohio Mar. 30, 2015)
(citing In re Baycol Prods. Litig., 616 F.3d 778, 783 (8th Cir.
2010)).
1
Plaintiffs’ motion is timely under Rule 25(a)(1). On June 11,
2019, Plaintiffs notified the Court and the parties that Powell had
died. (ECF No. 212.) Plaintiffs filed this motion on September 6,
2019. (ECF No. 245.)
3
The
first
issue
is
whether
“extinguished” by his death.
Powell’s
claims
were
Whether the death of a party
extinguishes a claim is a substantive question that state law
ordinarily governs.
Huggard v. United Performance Metals, Inc.,
No. 10-cv-0063, 2011 WL 6817770, at *1 (S.D. Ohio Dec. 28, 2011)
(citing 7C Charles Alan Wright et al., Federal Practice and
Procedure § 1952 (3d ed. 2019)), adopted by 2012 WL 368222 (S.D.
Ohio Feb. 3, 2012).
The survivorship law of the forum state determines whether
a § 1983 claim survives a plaintiff’s death, provided the forum
state’s law is “not inconsistent with the Constitution and laws
of the United States.”
Robertson v. Wegmann, 436 U.S. 584, 588
(1978) (quoting 42 U.S.C. § 1988)).
A state’s survivorship law
is inconsistent with federal law when it is “inconsistent with
the
federal
policy
consideration.”
underlying
the
cause
of
action
under
Id. at 590 (quoting Johnson v. Ry. Express
Agency, Inc., 421 U.S. 454, 465 (1975)). The policies underlying
§ 1983 claims include “(1) compensation of persons for injuries
caused by deprivations of their federal rights and (2) deterrence
of deprivation of rights.”
Frontier Ins. Co. v. Blaty, 454 F.3d
590, 600-01 (6th Cir. 2006) (citing Robertson, 436 U.S. at 59091).
Section 1983 claims are “best characterized as personal
injury
actions”
when
determining
4
whether
they
survive
a
plaintiff’s death under the forum state’s law.
880 F.3d 292, 295 (6th Cir. 2018).
Crabbs v. Scott,
In Tennessee, “[n]o civil
action commenced, whether founded on wrongs or contracts, except
actions for wrongs affecting the character of the plaintiff,
shall abate by the death of either party.” 2
Tenn. Code Ann.
§ 20-5-102. “Claims for personal injuries survive” a plaintiff’s
death in Tennessee.
Estate of Sanders v. Jones, 362 F. Supp. 3d
463, 466 (W.D. Tenn. 2019) (quoting Can Do, Inc. Pension and
Profit
Sharing
Plan
and
Successor
Plans
v.
Manier,
Herod,
Hollabaugh & Smith, 922 S.W.2d 865, 867 (Tenn. 1996)).
Defendants do not argue that Tennessee’s survivorship rule
is inconsistent with the policies underlying § 1983 claims.
Tennessee law applies to Powell’s § 1983 claims. Under Tennessee
law, the claims survive.
The survivorship law of the forum state also determines
whether
a
claim
brought
plaintiff’s death.
under
state
common
law
survives
a
7C Charles Alan Wright et al., Federal
Practice and Procedure § 1954 (3d ed. 2019).
Powell’s common-
law negligence claims against the Company Defendants are “claims
for personal injuries” that survive his death.
922 S.W.2d at 867.
Can Do, Inc.,
Thus, both Powell’s § 1983 claims and his
2
Cases “affecting the character of the plaintiff” include such
causes of action as libel, slander, and malicious prosecution.
Bowman v. Hart, 33 S.W.2d 58, 59 (Tenn. 1930).
5
common-law negligence claims survive and are not “extinguished”
under Rule 25(a)(1).
The second issue is whether Brown, as administrator ad litem
of Powell’s estate, is a proper party for substitution under
Rule 25(a)(1).
This is “a substantive issue, for which we must
rely on state law.”
Watts, 2015 WL 1456647, at *6 (quoting
Baycol, 616 F.3d at 787-88). In Tennessee, a decedent’s personal
injury suit may be revived by the administrator of the decedent’s
estate and prosecuted in the administrator’s name for the benefit
of the estate.
See Tenn. Code Ann. § 20-5-104; Gipson v. Memphis
St. Ry. Co., 364 S.W.2d 110, 117 (Tenn. Ct. App. 1962) (“Where
an injured party brings suit for personal injuries and thereafter
dies
from
other
supervening
causes
such
suit
for
personal
injuries may be revived in the name of the plaintiff’s personal
representative . . .”).
The Shelby County Probate Court has
appointed Brown as administrator ad litem “to represent the
interest of the estate of the decedent.”
(ECF No. 245-1.)
Plaintiffs and Defendants agree that Brown is a proper party to
prosecute Powell’s surviving claims.
No. 253 at 2.)
(ECF No. 245-2 at 4-5; ECF
Substitution of Brown for Powell is proper under
Rule 25(a)(1).
B.
Class Action Considerations
Defendants do not dispute that Brown is a proper substitute
under Rule 25(a)(1).
They argue that the Court should exercise
6
its
discretion
to
deny
Plaintiffs’
motion
for
substitution
because Brown “cannot properly be named as a putative class
representative.”
(ECF No. 253 at 2.)
Defendants rely on two distinct class action concepts:
justiciability
and
class
certification.
See
Fallick
v.
Nationwide Mut. Ins. Co., 162 F.3d 410, 422 (6th Cir. 1998)
(distinguishing
“the
issue
of
a
plaintiff’s
standing
under
Article III vis-a-vis a defendant” with “the relationship between
a potential class representative and absent class members, which
is governed by Rule 23 of the Federal Rules of Civil Procedure”).
A plaintiff in a class action must have individual standing to
sue the defendant, and typically must maintain that standing
until a class is certified.
941-42 (6th Cir. 2016).
Wilson v. Gordon, 822 F.3d 934,
This is the justiciability issue.
Separately, a plaintiff in a class action may serve as a class
representative only if she meets the requirements of Federal
Rule of Civil Procedure 23.
Fallick, 162 F.3d at 423.
For
example, she must prove that she “will fairly and adequately
protect the interests of the class.”
Fed. R. Civ. P. 23(a)(4).
This is the class certification issue.
Addressing justiciability, Defendants argue that Powell’s
death moots his § 1983 claims for injunctive relief. 3
3
(ECF No.
Defendants concede that Powell’s claims for damages under § 1983
are not moot. (ECF No. 253 at 3.)
7
253 at 2-3.)
Death ordinarily moots a plaintiff’s claims for
injunctive relief because “she no longer has a legally cognizable
interest in the outcome.”
Immel v. Lumpkin, 408 F. App’x 920,
921 (6th Cir. 2010) (quoting United States v. City of Detroit,
401
F.3d
448,
450
(6th
Cir.
2005)).
Defendants’
mootness
argument, however, does not bear on the Court’s decision about
whether to substitute Brown for Powell.
Powell’s claim remains justiciable.
It bears on whether
Ordinarily, a defendant
seeking the dismissal of a claim on mootness grounds files a
motion to dismiss the claim.
See, e.g., Hoza v. Jefferson Cty.
Teachers Ass’n, No. 09-cv-0764, 2010 WL 1533298, at *7 (W.D. Ky.
Apr. 15, 2010) (granting motions to dismiss plaintiffs’ class
action claims as moot); see also Wilson, 822 F.3d at 942 (“‘Where
. . .
[a]
named
plaintiff’s
claim
becomes
moot
before
certification,’ the ordinary rule is that ‘dismissal of the
action is required.’”) (quoting Brunet v. City of Columbus, 1
F.3d 390, 399 (6th Cir. 1993)).
motion
to
dismiss.
If
they
Defendants are free to file a
do,
Plaintiffs
will
have
an
opportunity to respond, and the Court will consider the parties’
arguments.
Addressing class certification, Defendants argue that Brown
would not be able to represent a class pursuing claims for
injunctive relief or damages.
(ECF No. 253 at 3-7.)
Defendants
argue that Brown cannot represent a class pursuing claims for
8
injunctive
relief
because
Powell
no
longer
standing to pursue those claims. (Id. at 3-5.)
has
individual
Defendants argue
that Brown cannot represent a class pursuing claims for damages
because he cannot meet the requirements an estate administrator
must satisfy before he can serve as a class representative.
Those requirements include: (1) that all beneficiaries of the
estate consent to the litigation; and (2) that the administrator
affirm that the estate will not bear the costs of the litigation
personally.
(Id. at 5-6); see also 1 William B. Rubenstein,
Newberg on Class Actions § 3:71 (5th ed. 2019).
Defendants’ arguments about whether Brown can serve as a
class representative do not bear on the Court’s decision about
whether to substitute Brown for Powell at this juncture. “Before
ruling on class certification this Court must conduct a ‘rigorous
analysis.’”
Faktor v. Lifestyle Lift, No. 09-cv-0511, 2009 WL
1565954, at *2 (N.D. Ohio June 3, 2009) (quoting Gen. Tel. Co.
v. Falcon, 457 U.S. 147, 161 (1982)).
in class discovery.
2.)
The parties are engaged
(Second Am. Sched. Order, ECF No. 244 at
Plaintiffs will not file class certification motions until
late next year, at the earliest.
Defendants’
invitation
representatives before then.
to
(Id.)
decide
The Court declines
appropriate
class
See Geary v. Green Tree Servicing,
LLC, No. 14-cv-00522, 2015 WL 1286347, at *17 (S.D. Ohio Mar.
20, 2015) (“deem[ing] it prudent to assess the propriety of class
9
certification
in
the
context
of
a
fully
briefed
class
certification motion”); Eliason v. Gentek Bldg. Prods., Inc.,
No. 10-cv-2093, 2011 WL 3704823, at *2-3 (N.D. Ohio Aug. 23,
2011) (same).
Substitution of Brown for Powell is proper and useful.
may
serve
functional
ends.
Brown
could
representative for a damages subclass.
serve
as
a
It
class
See Weathers v. Peters
Realty Corp., 499 F.2d 1197, 1200 (6th Cir. 1974) (noting that,
“[i]f both injunctive or declaratory relief, and monetary damages
are sought, it is permissible under [Rule 23] to have subclasses”); see also Gutierrez-Rodriguez v. R.M. Galicia, Inc.,
No. 16-cv-00182, 2018 WL 1470198, at *2 (S.D. Cal. Mar. 26, 2018)
(approving
classes).
separate
“injunctive”
and
“damages”
settlement
If the Court declines to certify a class in this case,
Brown could continue to pursue Powell’s individual claims.
See
Macula v. Lawyers Title Ins. Corp., No. 07-cv-1545, 2010 WL
1278868, at *2 (N.D. Ohio Mar. 30, 2010) (allowing class action
plaintiff to continue to pursue individual claims after denial
of class certification motion). Substitution of Brown for Powell
is appropriate.
10
III. Conclusion
For
the
foregoing
reasons,
Plaintiffs’
Motion
Substitution of Party is GRANTED.
So ordered this 22nd day of October, 2019.
/s/ Samuel H. Mays, Jr.
Samuel H. Mays, Jr.
UNITED STATES DISTRICT JUDGE
11
for
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