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Lizarazo v. Miami-Dade Corrections and Rehabilitation Department

United States Court of Appeals, Eleventh Circuit

December 29, 2017

GUSTAVO LIZARAZO, Plaintiff-Appellant,
v.
MIAMI-DADE CORRECTIONS AND REHABILITATION DEPARTMENT, CONRAD GREAVES, JR., in his individual capacity, JEFFRY MONTEALEGRE, in his individual capacity, CALVIN HOWARD, in his individual capacity, SAMUEL MENARD, in his individual capacity, et al., Defendants-Appellees.

         Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:16-cv-20558-UU

          Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.

          MARTIN, CIRCUIT JUDGE.

         Gustavo 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.[1] Mr. Lizarazo says the District Court was wrong in finding his motions untimely. After careful review, we reverse and remand for further proceedings.

         I.

         On June 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 ("MDCR").[2]

         On 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 Procedure."

         Federal 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.

         On 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, 2017.

         Mr. 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 date.

         On 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.

         Defendants 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.

         On 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 5.

         On 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.[3] The District Court also found that Mr. Lizarazo's failure to meet the February deadline was not due to "excusable neglect, " which ...


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