Sampson v. ASC Industries

Filing 82

Memorandum Opinion and Order denying 52 and 62 . (Ordered by Judge John McBryde on 12/19/2013) (wrb)

'

s

,1

, ( 7l
r ) .
l
t - D I -ti '' .èl1.'
Js. snl k. t-.Jè'

,

RN DI
STRI c oyr xag
C y sy

,jFC
:
;
'
.
j

IN THE UNITED STATES DISTRIC .
.,. . :
.yy ) v
ij
NORTHERN D ISTRICT OF TEX S ..d); ,yay y;
:. j ; i j u p
).5 ï,
' (y
;
'
y
FORT WORTH DIV ISION
t';' , . r
q '
)
,
. .
r') '
..-.
.ry
'
71:.ë;qq
- : yq)
tjy:ty 1j1 j!tr:
.
1ë: (ë)j
1 ( pr q
:; (
.
4
.

.

'

- .
;...
.

..
.

REBECCA BREAUX ,

Pl i i f,
a nt f
VS .
ASC INDUSTRIES ,
Defendant .

,

5

s .ï2t')'l
,,.:'(
'' .t
') f
:.
s.
'

5

g
5
g
5
5

)

'

.
'

..
.

,
j

. .t) ) '
.JL)(B,
,)'
)t
q.
J
'

!
j
;

'

p
.
,
? ct
t axxrr- pl u cr ct' '.:
'
s- sil
:e'
,

.

j

:

-

.

.
..

)J
'
rj' !.'
l ' '.
. .
.

'

No . 4 :12' CV -2 82 -A
-

.ï)t
1*yLg
:.' q
1'E'
/'*j'
.

-.
.

. . -. .. .
. -- . . .... ... .
-

MEMORANDUM OPINION
and
ORDER

Before the court for decision is the ( motion filed
1)
October l , 2013 , by the Estate of Rebecca Breaux to alter or

amend the judgment of dismissal the court signed in this action
on September 3, 2013 , and ( ) the motion for substitution of
2
party under Fed . R . Civ . P . 25 ( ( filed October 15, 2013, by
a) 1)

Keva Nuckols Sampson, a/k/a Keva Renae Nuckols, Independent
Executrix of the Estate of Rebecca Louise Breaux . After having
considered such motions , related responses and replies , evidence
received at the hearing conducted October 29 , 20l3 , the entire
file in the above-captioned action , and pertinent legal

authorities, the court has concluded that both motions should be
denied .

y
!
;

Backqround and Pertinent Procedural Historv
This action, in which Rebecca Breaux ('Breauxr) was
l
'
plaintiff and ASC Industries ('
' ' is defendant, commenced on
ASC')
May 6 , 2012 , by the filing of Breaux ' original comp laint . The
s

attorneys signatory on the complaint were N . Jude Menes ('
'Menes'
$
and Lurlia A . Oglesby U'
oglesby') of the Menes Law Firm . Federal
'

question subject matter jurisdiction was alleged. Plaintiff
alleged that she was discrim inated against based on her age in
connection with her emp loyment by defendant , ASC . On May 15,
2013 , Breaux filed an amended complaint over the signature of
Oglesby .

On May 24 , 2013, Oglesby filed a document titled 'Statement
'
Noting Party 's Death ,' stating :
'

In accordance with Rule 25 ( 3) of the Federal
a)(
Rules of Civ il Procedure , the undersigned counsel notes
the death during the pendency of this action of
Plaintiff, Rebecca Breaux .

The filing was accompanied by a certificate of service noting
serv ice of the document on counsel for defendant on May 22 , 2013 .
On July 2 , 2013, defendant filed tWo documents , one titled

'Defendant ASC Industries' Motion to Exclude and/or For Sanctions
'
and Brief in support ,' and the other titled '
'
'
Defendant ASC '
S
Motion for Bifurcated Trial and Brief in Support .' Each was
'

accompanied by a certificate of service showing service of copies
on Menes and Oglesby . The certificate of conference accompanying

each of the motions read in part: ' byl email dated June 25,
'E
2013 , Lee Oglesby advised that a probate had not been opened for

Plaintiff.' Def.' Mot. for Bifurcated Trial at 4 .
'
s
On July 9 , 2013 , the court signed an order in which the
court noted the filing on May 24 of the notice of plaintiff '
s
death and by which the court stayed all further proceedings in

the action until a motion for substitution of parties as

contemplated by Rule 25( of the Federal Rules of Civil
a)
Procedure was filed . On August 20, 2013 , Keva Nuckols Sampson
addressed a letter to the Menes Law Firm informing the firm that
she no longer needed the firm ' assistance .
s
On August 29, 2013, defendant filed a motion for leave to
file a motion to dism iss, seeking dismissal pursuant to

Rule 25 ( 1) of the Federal Rules of Civil Procedure. It was
a)(
accompanied by a certificate of conference signed by an attorney
for defendant , Jill Malouf, reciting in part as follows :

Lee Oglesby, Esq . (
formerly of the Menes Law Firm)
informed Ms . Malouf on August 29 , 2013 , that she
intends to file an appearance in this case on behalf of
Plaintiff's estate (
and that she is opposed to
Defendant' Motion).
s

3

Mot . for Leave at

On August

attorney for defendant that

2013, Oglesby informed an

have been retained to represent

the estate .' Opp 'n to Mot . to Am . or Alter , App . at
'

The motion to dismiss, which was filed August

2013, was

based on the mandate of Rule 25( 1) of the Federal Rules of
a)(
Civil Procedure that reads as follows :
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 ' successor or representative . If the motion is
s
not made within 90 days after service of a statement notinq
the death , the action by or aqainst the decedent must be
dismissed .

Fed . R . Ci . P. 25 (
v
a)

(
emphasis added)

On September

2013,

the court ordered dism issal of this action pursuant to the

directive of Rule 25( ( inasmuch as no motion for àubstitution
a) 1)
of parties had been made within ninety days after service on

kay 22, 2013, of the statement filed May 24, 2013, noting the

death of Rebecea Breaux. A final judgment of dismissal was
signed September 3 , 2013 .
On that same date , a motion was filed by Menes LaW Firm and
Menes requesting permission to withdraw as attorney s of record
for Estate of Rebecca Breaux . The motion recited that Menes and
Oglesby were co -counsel in the representation of plaintiff, that
on August 20, 2013, the Probate Court of Tarrant County appointed
Keva Nuckols Sampson as the Independent Executor of Rebecca

Breaux 's Estate , and that Ms . Sampson had requested the Menes Law

Firm and Menes to withdraw from the case , apparently because Ms .
Sampson had engaged Oglesby , who no longer worked for the Menes

Law Firm. The motion recited a belief that 'Ms. Sampson has
'
engaged Ms . Oglesby to continue representing the estate' and that
'

'
'
Ms. Oglesby already has the entire case file on Ms. Breaux in
her possession .' Mot . to W ithdraw at 2 .
'
On September 4 , 2013, the court granted the motion to
Withdraw . In that order , the court incorrectly stated that the
result of the withdrawal was that there was no attorney of record

for the now -deceased plaintiff . In fact, Oglesby has been an
attorney of record for plaintiff at all times since this action

Was filed in May 2012. So far as the court can tell, With one
exception , Oglesby was the signatory on every document filed in

the case on behalf of plaintiff. In a Joint Status Report filed
November 9, 2012, Oglesby identified herself as lead counsel for

Plaintiff. In a telephone conference/hearing conducted May l4,
2013, Oglesby was the only counsel who appeared fot plaintiff .

On October 1, 2013, Oglesby fiied her notice of a
ppearance on
behalf of Keva Nuckols Sampson, a/k/a Keva Renae Nuckols,
Independent Executrix of the Estate of Rebecca Lou ise Breaux . On

the same date, Oglesby filed on behalf of the estate of Rebecca

5

Breaux a motion to amend or alter the September 3 , 2013 order of
dismissal .

On October 8 , 2013, defendant filed its opposition to the

motion to amend or alter judgment. On October 15, 2013, Oglesby
replied to defendant ' opposition , and at the same time filed on
s

behalf of Keva Nuckols Sampson, a/k/a Keva Renae Nuckols,
Independent Executrix of the Estate of Rebecca Louise Breaux , a

motion asking that Ms. Sampson in her representative capacity be
substituted as the named plaintiff in this action . The motion
for substitution recited that the movant was duly appointed as
,

independent administratrix of the Estate of Rebecca Louise Breaux
on August 20, 2013 .

On October 24 , 2013, defendant filed its

opposition to the motion for substitution. On October 24, 2013,
Oglesby filed a Proof of Service consisting of a declaration by
Daryl Richardson that on October 24, 2013 , he personally served

on Keva Nuckols Sampson, a/k/a Keva Renae Nuckols, Independent

Executrix of the Estate of Rebecca Louise Breaux, a cop# of the
October 15, 2013 motion for substitution and other items .
On October 29, 2013 , the court conducted a hearing on the

motion to alter or amend judgment of dismissal and the motion for
substitution .

6

II.

The Ground of the Motion to A lter or Amend
Judqment of Dismissal , and Defendant 's Response
-

The sole ground of the motion to alter or amend judgment of
dismissal was that the dism issal is not authorized because there

was not compliance with the service requirement of Rule 25( (
a) 3)
of the Federal Rules of Civil Procedure more than ninety (
90)

days prior to the judgment of dismissal. According to the
movant, ' t)he 90-day period E
'(
contemplated by Rule 25( (
a) 1))
begins to run when the statement noting the death has been

properly served on a nonparty' and ' i1n this case, decedent's
'
'E
executrix is a nonparty and the statement noting death was to be
served on her pursuant to Rule 4 in order to trigger the 90-day
substitution period .' Mot . to A lter or Amend at 3 . The movant
'

alleged that ' iln essence, the notice of statement of death was
'E
a nullity .' Id .
'

Defendant opposed the motion to alter or amend on the ground
that Oglesby was representing the estate of Rebecca Breaux before
the motion to dismiss was filed and could have made a motion for
substitution of parties before the court ordered p laintiff '
s
claims against defendant dismissed .

7

111 .

Ihformation Developed at the Hearinq
A t the hearing conducted October 29, 2013, on the motion to

alter or amend judgment of dismissal and the motion for
substitution, testimony was taken from Keva Nuckols Sampson

('
'Sampson'), Oglesby, and James Wilson ('
'
'Wilson'), the attorney
'
who handled the probate of Breaux ' last will and testament . In
s
potentially pertinent part , their testimony was as follows :
A.

Samoson ' Testimonv
s
Sampson was Breaux ' only child . Her mother, who died as a
s

result of being struck as a pedestrian by a motor vehicle on
May 2l, 2013, left a will, which designated Sampson as èxecutrix
of her mother ' estate . They searched her mother 's entire house
s
in an unsuccessful effort to find the original of the will after
her mother ' death . Sampson had a copy of the w ill in her safe .
s
The will was adm itted to probate on August 20, 2013, as a

will not produced in court . Sampson , Wilson , Who represented her
in the probate , and her two uncles, who were w itnesses to her
mother ' signature , were present at the hearing .
s

She identified as an exhibit the inventory, appraisement,
and list of claims pertaining to her mother ' estate , which she
s
signed . The asset shown on the document as 'possible work'
related personal

inj
ury ca
use of actionz' Hr' Ex. 13 at second
'
g
8

page, has reference to her mother ' lawsuit against ASC . The
s
inventory , appraisement , and list of claims also shows as an

asset a possible wrongful death cause of action, which has
reference to a possible lawsuit arising from her mother ' death .
s
Oglesby has represented her in connection with the wrongful death
claim since sometime in September 2013 .
Sampson identified as an exhibit a copy of the contract
between her and Oglesby related to Oglesby ' representation of
s
Sampson in her mother ' su it against ASC . She signed the
s
contract on September 11, 2013 . She did not receive between her
mother ' death and September 11, 2013 , a statement noting her
s
mother 's death .

She identified as an exhib it the motion for substitution of
party under Rule 25, which was served on her by a gentleman in
Grand Prairie . Oglesby did not send her a copy of the motion
when it was filed ; however , Oglesby did tell her before it was
filed that she was going to file such a motion .
According to Samp son , she first met Oglesby around September
2013 . Her first conversation with Oglesby was when she called
Oglesby in september , 2013 . Before that , she had never talked to
Oglesby . she did not meet Oglesby during the time Oglesby was
providing representation to her mother .

9

She found out that Oglesby had left the Menes LaW Firm
through her Aunt Charlotte , who is married to one of the
Witnesses . When she heard from her Aunt Charlotte that Oglesby
had left the Menes Law Firm , she told the 1aw firm that she did

not want anyone else dealing with her mother ' case because her
s
mother had dealt with Oglesby personally and that was who she
wanted to handle the case . Oglesby never told her before

September 2013 about any deadline to make any appearance or to do
anything in her mother 's law suit .
Upon prompting from Oglesby on redirect examination , Sampson

ô

testified that she did meet Oglesby 'for a short minute' at her
'
'
mother 's funeral . Draft Tr . of October 29, 2013 Hr'g at 25.

B.

Oqlesbv 's Testimonv
Oglesby said that she no longer was working at the Menes Law

Firm when Breaux died . She discussed with Sampson sometime in

May 2013 that she had left the Menes Law Firm and that if Sampson
Wanted her to continue with the case , as Sampson had indicated to
her àhe did , Sampson would have to sign another contract w ith

Oglezby . That conversation was separate from the conversation
she had with Sampson at Breaux 's funeral .
She did not tell Sampson she was filing a notice in the
lawsuit that her mother had died . She cannot explain why she did

not tell Sampson about the filing of the notice . When she filed
10

the notice of Breaux ' death , she was acting as attorney for the
s
deceased plaintiff . she filed a notice pursuant to Rule 25 of

the Federal Rules of Civil Procedure . She read the rule before

she filed it and saw what it said about serving the notice on
different people. She did not comply with the requirement that
she serve a nonparty because there was no nonparty at that point .
When asked if she checked with Samp son to find out who Would be
the executor of the will, if a will were to be admitted to

probate, she said that she did not do so because she did not

think it was necessary. She testified on this subject:
THE COURT : D6n ' you think that defendant is
t
entitled to rely on the notice in conducting its
affairs and assume -- is entitled to assume that the
lawyer who files the notice will do what the rule
requires that lawyer to do?
M S. OGLESBY : Yes, but I don ' believe that the
t
rule required me to serve the nonparty at that time .
II not stating that the statement noting death may
m
have been gratu itously filed . It may have . It may
have been inappropriately filed . That may have
happened as well . But under the rules, the nonparty
had to be served . I did not serve the nonparty .
Draft Tr . of October 29, 2013 Hr 'g at 40-41 .

When she saw Sampson at Breaux ' funeral, she did not
s
discuss any legal matters . At that point , she was no longer with
the Menes Law Firm , and she felt that it Was inappropriate for

her to discuss anything with Sampson regarding the lawsuit.

Wilson ' Testimonv
s
Wilson is the lawyer who handled the probate of Breaux 's
will as a w ill that could not be produced in court . He
identified one of the exhibits as a copy of the copy of the will

they used to obtain the probate . The application for probate was
filed w ith the probate clerk ' office in Tarrant County on
s
July 8, 2013 .

About a week after Breaux ' death, Mike Harvey ('
s
'
Harveyl),
'
one of his good friends, came to him and asked if he could
probate the w ill, and he agreed to do so . Harvey told him that
he had a copy of the will . Wilson responded that it would be
best if they could find the original will .
Wilson discussed the problems they encountered in trying to
find the original will. Breaux ' house was a comp lete disaster .
s
They wound up getting a dumpster and throwing everything away .

They literally had to clean out the entire house to try to find
the will, which had disappeared. He explained what he meant by
say ing that the house was completely cluttered . Breaux was
addicted to drugs , and her house was a drug house . The house

l
ooked li nobody took care of it. One of their problems was
ke
that there was a gentleman who had been there a couple of nights
Who decided , after Breaux ' death , that he and Breaux were common
s

law, a >osition the man maintained until he found out that Breaux

did not have any money , at which time the man disappeared and
they have not heard from him since .
They waited as long as they did, until July 8, to file the

aPP llcation for probate because for the first two or three weeks
they were trying to find the original will, and then they had the
issue as to whether the gentleman who stayed in the house was
Breaux l common law husband , and they were try ing to resolve that
s
issue before they sought probate of a copy of the will . Breaux
had given two or three people a copy of her will. Another factor
that entered into a delay of actual admission of the will to
probate was that after the application for probate was filed they
had difficulty finding a time when the witnesses who would have
to testify could be off and attend a hearing .
He explained that the reason he described in the inventory ,

appraisement, and list of claims a possible work-related personal

injury cause of action as a pending lawsuit was because he knew
nothing about the lawsuit other than that there was a lawsuit
pending between Breaux and her former employer .
He first talked to Oglesby sometime near the end of June
2013 . One or :0th of Sampson 's uncles had met w ith Oglesby , and
Oglesby was wanting to know how fast they could get the probate
going . He told Oglesby about four days before he actually filed

the application for probate that they had just decided that they
13

Were going to do it w ithout the original will . His occasion for
talking to Oglesby was that Kev in , an uncle, had asked him to
talk to Oglesby . Oglesby had contacted Kevin and told him that

she needed to know how soon they could get the probate going .

Wilson filed the application for probate about four days after
Kev in told W ilson about his conversation with Oglesby .

When Wilson talked to Oglesby around the end of June, she
indicated that there was some need for speed in getting the
probate filed . She told him that it needed to be done
immediately , but he does not recall that she gave him a time
element . oglesby told him that she wanted the application filed
the day they had their conversation . She asked him how long it
Would take to get the w ill probated after it Was filed . Oglesby
;

stres:ed to h im that they had to get it done as quickly as
possible because of a time element , which had something to do

With the lawsuit Breaux had filed against her former employer.
IV .

Analvsis
The information developed at the October 29, 2013 hearing
raised more questions than it answered .
Oglesby testified more than once at the hearing that she no
longer was working for the Menes Law Firm when Breaux died . Yet,
the suggestion noting Breaux ' death filed by Oglesby on May 24 ,
s
14

2013, shows that she was w ith the Mepes Law Firm When she
prepared and filed that statement. The certifiçate of service
shows that a copy of thq statement was served on counsel for ASC

On May 22, 2013, the day follow ing Breaux ' death . Equally
s
puzzling is the testimony given by Sampson and Oglesby concerning
the nature and timing of their contacts w ith each other after
Breaux ' May 21, 2013 death . Sampson testified more than once
s
that the first time she ever talked to Oglesby was sometime
around the first of September 2013 when she called Oglesby .
Samp son gave as her reason for calling Oglesby the following :

Because I had just lost my mother, and I didn't
even know where to begin any of this stuff that I'm
going through . I didn ' know -- and that was my
t
mother 's lawyer, and she was the onlv one I had to talk

Draft Tr. of October 29, 2013 Hr' at 21 (
g
emphasis added). When
pointedly asked why she waited so long to call her mother 's

lawyer, Sampson said ' blecause I was going through a lot .' Id .
'l
'
at 20. Not until she was prompted by Oglesby on redirect
examination did sampson acknowledge that she met Oglesby for a
'short m inute ' at her mother 's funeral.
'

In contrast , Oglesby

told of an early communication or communications she had with
Samp son , sometime in May 2013, when she adv ised Sampson that she
had left the Menes Law Firm and that if she wanted Oglesby to

15

continue with the case she would have to sign another contract
with Oglesby .
The testimony given by Sampson and Oglesby at the hearing

appears to have been calculated to indicate that Oglesby did not
start representing Breaux 's estate until Sampson , as executrix of
the estate , and oglesby entered into an attorney -client contract

sometime in september 2013. Such a suggestion Would be
inconsistent with other parts of the record, such as Oglesby '
s
June 25, 2013 email that probate had not yet been opened , her

August 29, 2013 advice to counsel for ASC that she intended to
file an appearance in this action on behalf of Breaux 's estate,
and her adv ice to counsel for ASC on August 29 that she had been
retained to represent the estate . Supra at 3-4 . The court is
satisfied, and finds, that the conversations between Sampson and
Oglesby that caused Oglesby to become an attorney for Breaux 's

estate i this action occurred i May 2013, and tiat bot of them
n
n
h
viewed Oglesby to be the attorney for the estate in this action
from that point forward .

Oglesby obv iously thought that her filing in May 2013 of the
statement noting Breaux ' death started the running of the 90-day
s
time period for the filing of a motion to substitute . The

statement said that it was filed ' iln accordance with Rule
'l
25 ( 3) of the Federal Rules of Civil Procedure.l Statement
a)(
l
16

Noting Party ' Death. oglesby testified that she read Rule 25
s
before she filed the statement.

The court finds incredible any contention that Sampson was
not made aware sometime in May 2013 of Oglesby ' filing of the
s
suggestion of Breaux 's death or that Sampson was not told by
Oglesby during that month that there was a 90-day time limit for

the filing of a motion for substitution of parties. The court
infers, and finds, from the record that Sampson was informed of
:0th of those things by Oglesby in May 2013 .
Oglesby 's sense of urgency in causing the suggestion of

death to be made within what she undoubtedly perceived to be the
90-day time frame that started when she filed the suggestion of
death is disclosed by Wilson 's testimony . He became involved in
the probate of a copy of Breaux 's will at the behest of Harvey ,
one of Sampson 's uncles , about a week after Breaux 's death .

Harvey had a copy of Breaux ' will at that time . When one or
s
both of Sampson ' uncles met with Oglesby sometime before the end
s
of June 2013 , and Oglesby expressed a concern to the uncle or

uncles as to how fast the probate of the will could be

accomplished, Oglesby ' concern was passed onto Wilson, who had a
s
conversation with Oglesby near the end of June 2013 . When Wilson

spoke with Oglesby, she told him that the probate of the will
needed to be accomplished immediately . Oglesby told Wilson that
17

she wanted the application for probate filed that day , and she
wanted to know how soon he could get the will probated after the
application was filed . oglesby stressed to him that they needed
to get it done as quickly as possible because of a time limit

that had something to do with the lawsuit against Breaux's former

-

emolover .

The court can infer , and finds, that if Sampson did not
learn from Oglesby before the statement noting Breaux ' death was
s
filed on May 24 , 2013, that it was being filed , Samp son learned
from Oglesby sometime in May 2013 of the filing in this action of

something noting her mother' death, and that when Sampson
s
acquired that knowledge from Oglesby , she and Oglesby b0th knew

that sampson was designated in Breaux ' will as the person to
s
serve as the executrix of Breaux 's estate , i .e ., the person who

would serve as the personal representative under Texas law of
Breaux ' estate . Oglesby was acting on behalf of Sampson ,
s

Breaux ' designated estate representative, in the filing of the
s
May 2013 suggestion of death .
The court does not find credible the testimdny given by
Sampson or Oglesby that might be viewed to be inconsistent with
the fact findings expressed above . Obviously , Oglesby was
aggressive in her plan to continue as the attorney for the
p laintiff in this action once she learned of Breaux ' death .
s
18

Presumably Oglesby made a full disclosure in May 2013 to Sampson ,
who she knew was designated to be the legal representative of
Breaux 's estate , of the facts pertinent and essential to the

ultimate substitution of Sampson, as the representative of
Breaux ' estate, for the deceased Breaux as the plaintlff in this
s
action .

Sampson's sole ground for her motions is that the 90-day

period contemplated by Rule 25 ( l) never started to run because
a)(
the statement filed by Oglesby on May 24, 2Q13, noting Breaux '
s
death was never served on a nonparty .

Oglesby 's brief statement

at the hearing of the only ground Sampson urges for grant of her

motions was in its entirety as follows :

THE COURT : Does the -- either party wish to make
a brief statement in support of whatever your position
is at this time?
M S. OGLESBY :

THE COURT :

Yes, Your Honor .

Okay .

MS . OGLESBY :

I would ask that the Court grant the

motion to amend and alter the judgment based on clear
error. Under Rule 25( 3), the notice
a)(

the

statement noting the death of the decedent must be
served on a nonparty . That was not done in this case .
It ls irrefutable . It did not happen .
Whether it was me filing the statement noting the

death, or the defendant filing the statement noting the
death , is irrelevant . The rules require serv ice . It
*as not done .

19

Based on Ehat clear error , I would ask that the
Court grant our motion to amend and alter the decision
dismissing the case .

With respect to the motion for substitution , I
would ask that the Court grant that as well. M s.
Sampson was the duly appointed independent executrix of
her mother 's estate and filed the necessary paperwork
in a fashion that was reasonable considering the

circumstances.
Based on those reasons, I Would ask that the Court
grant b0th motions .

Draft Tr . of October 29, 2013 Hr 'g at 42-43 .

There was no request for an extension of the go-day time
lim it prescribed by Rule 25 for the filing of a motion to
substitute .

The part of Rule 25 on which Sampson relied reads as
follows :

(
3) Service. A motion to substitute, together
w ith a notice of hearing , must be served on the parties
as prov ided in Rule 5 and on nonparties as Drovided in
Rule 4 . A statement noting death mu st be served in the
-

same manner. service may be made in any judicial

district .

Fed. R . Civ . P. 25( 3) (
a)(
emphasis added). Thus, the
determinative issue is whether the record of this action

establishes facts that would set the 90-day time period for the
filing of a motion for substitution into motion even though there
Was not actual serv ice on the personal representative of Breaux 's

estate in a manner contemplated by Rule 4 .

20

There are many court decisions on the subject of what
triggers the go-day time period , with varying outcomes , depending
on the unique facts of each case . However , so far as the court
can determine , there are only two Fifth Circuit op inions dealing

With this subject. The first was Ransom v. Brennan, 437 F. 512
2d
(
5th Cir. 1971), followed thirty-three years later by Ray v .
Koester, 85 F. App ' 983 (
x
5th Cir. 2004) (
per curiam).
In Ransom, the defendant in a breach-of-contract suit
pending in a diversity case in a Texas federal court died. The
defendant 's death was suggested on the record by the attorney who

:

was representing him at the time of h is death . Within ninety

'

days after the death was suggested on the record, the plaintiff
moved to substitute the deceased defendant 's executrix , a citizen
cf A labama , for the deceased defendant .

Thus, timeliness of the

filing of the motion to substitute was not an issue . The motion
to substitute was not served on the executrix , as a person not a

party within the meaning of Rule 25( 1), in the manner provided
a)(
by Rule 4 of the Federal Rules of Civil Procedure , although a
copy of the motion to substitute was mailed to the defendant '
s
attorney . Thereafter , the motion to substitute was granted .
Several months later , the executrix , through the same attorney

Who had filed the suggestion of death , moved to dismiss because ,

inter alia, the court lacked personal jurisdiction over the
21

executrix . The district court denied the motion, the case went

to trial, and after the plaintiff won a jury verdict, the
executrix appealed, asserting as an error the 14 Dersonam

jurisdictional issue.
The executrix , presumably the deceased defendant 's widow ,
was appointed by an A labama probate court , and apparently resided
in Alabama , as had the deceased defendant . A focus of the Fifth

Circuit was on whether the district court had acquired iu

personam jurisdiction over the nonresident representative of the
estate . The district court appeared to have thought

determinative of the personal jurisdiction issue that the
.

deceased defendant had been validly served with process, and

since there had been jurisdiction over him, it was unnecessary to
reacquire jurisdiction over the substituted party, who merely
represented the decedent ' interest . The Fifth Circuit held that
s
the district court 's v iew of the matter was error .
The Fifth Circuit concluded that the method contemp lated by

Rule 25 for acquiring jurisdiction over a nonparty had to be
utilized for the nonparty to be subjected to the district court'
s
jurisdiction. In the course of reaching that conclusion, the
court said that 'Rule 4 service of the motion to substitute is
'

for the purpose of acquiring personal jurisdiction over
nonparties .' Ransom , 437 F .2d at 518.
'
22

The Fifth Circuit concluded that service in a manner
contemplated by Rule 5 of the Federal Rules of Civ il Procedure of
the motion to substitute on the attorney for the nonresident

executrix was not effectual solely by reason of his capacity as
attorney . That 1ed to the u ltimate conclusion that the district

court had no personal jurisdiction over the nonresident executrix

of the deceased defendant, with the consequence that the jury
verdict in favor of the plaintiff could not stand, even if the
executrix had actual notice of the filing of the motion to
substitute . On the latter point, the Fifth Circuit said,

' alssuming the executrix had . . . actual notice . . . , it
'l
would not operate as a substitute for process.' Id. at 519.
'
The Fifth Circuit apparently assumed that the 90-day time
period contemplated by Rule 25 was activated by the suggestion of
death made on the record by the attorney for the deceased

defendant. The court made a point of mentionin/ that the motion
to substitute was timely filed .

Id . at 520.

Timeline:s of the filing of a suggestion of death Was an
issue presented to the Fifth Circu it in an unpublished opinion in
Ray . The defendant in a damage suit growing out of a motor
vehicle accident died after he answered the complaint . His
attorney filed a suggestion of death two day s after the death ,
Which was served on the plaintiff on the same day it was filed .
23

N inety days after the date of receipt by plaintiff of the
suggestion of death , the defendant ' attorney filed a motion to
s
dismiss because the plaintiff had not filed a motion to

substitute party within the ninety days contemplated by Rule

25 ( 1). The plaintiff responded by requesting a thirty-day
a)(
extension to file the motion , which the district court granted .

Thereafter, beyond the extended deadline, the plaintiff filed a
response to the motion to dismiss, and later filed a document
seeking information about who would be named the successor to the
deceased defendant , but did not file a motion to substitute . The
district court concluded that the suggestion of death began Rule
25 's 90-day period , declined to grant a further extension of

time, and dismissed the action.
The plaintiff in Rav contended that the suggestion was not
adequate to begin the 90-day period because it did not identify a
proper party to succeed the deceased defendant .

The Fifth

Circuit held tiat the district court correctly concluded that
Rule 25 does not require that the suggestion identify the proper
party , and that the suggestion of death was sufficient to begin

the 90-day period. The suggestion of death in Ray Was put of
record two day s after the defendant 's death . Nothing in the Ray

opinion indicates that a representative of the deceased
defendant ' estate w as in ex istence when the suggestion was
s
24

filed , or that the suggestion was served on anyone who was
acting , or in the future would act , as a representative of the
deceased defendant 's estate .

Neither of the Fifth Circuit decisions supports the grant of

either of the motions at issue here. Both of the decisions
provide support for the proposition that the noting on the record
by the attorney for the deceased party of a suggestion of death

is sufficient to start the running of the 90-day time limit for
the filing of a motion to substitute.
Moreover, there would not seem to be an issue here as to

Whether this court acquired personal jurisdiction over the
executrix of Breaux's estate. In Ransom, a judgment was
erroneously entered against the executrix of the deceased

defendant's estate even though the court had not acquired 1u

Dersonam jurisdiction over her. In the instant actioh, no
judgment was entered against the executrix of Breaux's estate.
The executrix was not a p arty to the action when it wàs
dismissed . If the dismissal coincidentally were to have an

adverse effect on the executrix by reason of issue preclusion or
claim preclusion were the executrix later to initiate a separate
law suit , the situation would be no different than would exist in
any case in which a nonparty to an action is adversely affected,
by reason of priv ity or otherwise , by claim preclusion or issue
25

preclusion resulting from a judgment in the action. Such a party
would have no ground to attack the judgment by reason of not
having been served with process in the action .
Because of the diversity of outcomes of Rule 25 decisions

from other jurisdictions, the court devotes little attention to
them here . There is a collection in an annotation found at 105
A . . . Fed . 8l6 titled 'sufficiency of Suggestion of Death of
L R
r

Party, Filed Under Rule 25 ( 1) of Federal Rules of Civil
a)(
Procedure , Governing substitutions of Party After Death z' and
'

another at 13 A . R . Fed . 830 titled lApplicable Time Limitations
L.
'
for Serv ice Upon Persons Not Parties , of Motion ànd Notice of

Motion for Substitution of Parties on Death Under Rule 25( 1)
a)(
of Federal Rules of Civil Procedure .'
'
A case of interest is Bovd v . E1 Paso Natural Gas Co ., 126

F. D . 699 ( N . . 1989). The motion before the court there was
R.
D. M
for an extension of time in which to file for substitution of
plaintiff . The motion was filed by counsel for the deceased
plaintiff, Giles A . Bays, who died on or about April 16, 1988.

On April 18, 1988, the defendant filed pursuant to Rule 25 ( a
a)
suggestion of death , noting of record the fact and date of Bays's
death . No motion for substitution of a proper party in place of
Bays was filed within ninety days after the suggestion of death
was placed of record . The attorney who filed the motion for
26

extension gave as her ground for the extension that she simply
had m isread Rule 25 and, therefore , inadvertently failed to file

a motion tor substitution within the 90-day deadline. The court
concluded that the excuse given by the attorney did not

constitute excusable neglect or reasonable basis for failure to

comply with the requirements of kule 25, with the consequence
that the defendant's motion to dismiss was granted and the motion

for extension of time was denied . The interplay between Rule 25
and Rule 6 , governing extensions of time , has been noted in
several other decisions . See , e . ., Jones Inlet Marina , Inc . v .
g

Inglima, 204 F. D . 238, 240 ( . . . . 2001)7 Kastinq V . American
R.
E D N Y
:

Familv Mut. Ins. Co., 196 F. D. 595, 601 ( Kan . 2000).
R.
D.
There was no motion for extension of time for the filing of

'

the motion to substitute in the instant action . Th is court
agrees with the holding of the Second Circuit in Un icorn Tales ,
In c . v . B ane rnee , 13 8 F . 3d 467, 470 (
'
2d Cir. 1998), that the non-

filing of a Yotion under Rule 6( to allow substitution out-ofb)
time constitute: a waiver of such a request .

In Banernee , the
'

Second Circuit made the common sense observation that if there is
an inability to identify the legal representative of a deceased

person ' estate, the proper course would be to file a Rule 6(
s
b)

motion to enlarge the time in whi/h to file a motion for
substitution rather than to simply allow the 90-day time limit to
27

expire. Here, the absence of the filing of such a Rule 6 (
b)
motion causes the court not to be required to evaluate whether
there are circumstances in this case that would have authorized a

Rule 6( extension.
b)
For the reasons stated , the court has concluded that b0th of

the motions under consideration should be denied .
V.

Order
Therefore ,

The court ORDERS that the motion filed October 1, 2013, to

alter or amend the j
udgment of dis
missal the court si
gned in this
action on September 3, 2013, and the motion for substitution of

party under Rule 25 ( 1) filed October 15, 2013, be, and are
a)(
hereby , denied .
SIGNED December 19, 2:13 .
.
i'
#
e

.
,

r
.
.,

J

.

.

'

CBRYDE

o

'

:

i ed States District J

e

/
*

28