from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:16-cv-20558-UU
MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.
MARTIN, CIRCUIT JUDGE.
Antonio Lizarazo, acting as the personal representative for
the estate of Gustavo Adolfo Lizarazo, appeals the denial of
his Motion for Extension of Stay of Proceedings and Motion to
Reopen Case and Substitute Plaintiff. Mr. Lizarazo says the
District Court was wrong in finding his motions untimely.
After careful review, we reverse and remand for further
8, 2012, Gustavo Adolfo Lizarazo was arrested. While he was
detained, Mr. Lizarazo alleges that a number of officers
"repeatedly kicked, struck, and punched" him in the
face and abdomen, resulting in a fractured right orbital
socket and exploded orbital floor. In 2016, Mr. Lizarazo
brought suit against the officers he says attacked him,
Miami-Dade County, and the director of the Miami-Dade
Corrections and Rehabilitation Department
November 17, 2016, Mr. Lizarazo died. The next day, his
attorney filed a Joint Motion for Stay of Proceedings Due to
Death of Plaintiff. The motion noted that because Mr.
Lizarazo had "passed away less than twenty-four hours
ago, counsel [did] not yet have information as to the
appropriate substituted party." In order to substitute a
personal representative of Mr. Lizarazo's estate, the
motion requested a ninety-day stay. The parties submitted a
draft order, which they described as "consistent with
the procedures of Rule 25 of the Federal Rules of Civil
Rule of Civil Procedure 25 allows for substitution in the
event that a party dies. The rule further states: "If
the motion [for substitution] 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). Thus, to start Rule 25's ninety-day clock, a
suggestion of death must be filed with the court and served
on a personal representative of the deceased party. On
November 22, 2016, the defendants filed a Suggestion on
Record of Plaintiff's Death. And on November 29, the
defendants served Mr. Lizarazo's father, one of the
people they anticipated might serve as his personal
representative, with that notice. If the Rule 25 ninety-day
period began to run when Mr. Lizarazo's father was
served, it would have expired February 27, 2017.
December 29, 2016, the District Court entered an order
granting a ninety-day stay. The court required Mr.
Lizarazo's attorney to file reports every thirty days on
the status of the probate proceedings, and to notify the
court within five days of the appointment of the personal
representative. The order closed the case for administrative
purposes and said it would be reopened "if a proper
motion is made within 90 days hereof." Based on the date
the order was filed, the stay would have expired on March 29,
Lizarazo's attorney filed monthly status reports, as
required by the District Court's order. In the January 27
report, Mr. Lizarazo's attorney told the court that the
family had made a "prompt request for a death
certificate" and would soon be meeting with probate
counsel to finalize filings, "pending receipt of the
death certificate." In the February 24 report, Mr.
Lizarazo's attorney reported that the family had only
recently received the death certificate, and probate counsel
had a hearing date of March 30. Because the court's
ninety-day stay expired just before the hearing was
scheduled, probate counsel was requesting an earlier hearing
March 13, Mr. Lizarazo's attorney filed a motion to
extend the stay. He said that probate counsel had not been
able to get an earlier hearing date. Because the hearing to
appoint a representative for Mr. Lizarazo's estate would
take place just after the court's ninety-day stay
expired, Mr. Lizarazo's attorney requested a seven-day
extension in order to file his motion to substitute parties.
opposed the seven-day extension. They argued the text of Rule
25(a)(1) required the court to dismiss an action if a motion
for substitution had not been made within ninety days of
service of the Suggestion of Death on a nonparty successor or
representative. And because the defendants served Mr.
Lizarazo's father on November 29, 2016, they argued that
the ninety-day period had already expired. According to the
defendants, the court's ninety-day stay order did not
extend this deadline.
March 28, 2017, Mr. Lizarazo's attorney filed a motion to
reopen the case and substitute Mr. Lizarazo's father as
plaintiff. The motion noted that Mr. Lizarazo's father
had not yet been formally appointed personal representative,
but that the motion was "being filed in an abundance of
caution before the expiration of the stay." Mr.
Lizarazo's father was appointed administrator of his
son's estate on April 3. Mr. Lizarazo's attorney
filed the Letters of Administration with the court on April
April 14, the District Court denied both the motion to extend
the stay, as well as the motion to reopen the case and
substitute plaintiff. The court relied on the language of
Rule 25: "Rule 25(a)(1) explicitly states that if the
motion is not made within ninety (90) days after service of a
statement noting the death, the action must be
dismissed. Such language is mandatory, not
discretionary." The court agreed with the defendants
that the ninety-day period under Rule 25 started the day Mr.
Lizarazo's father was served with the Suggestion of
Death, and found that substitution therefore had to happen by
February 29. The District Court also found that Mr.
Lizarazo's failure to meet the February deadline was not
due to "excusable neglect, " which ...