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Carruth v. Smyth

United States District Court, N.D. Alabama, Western Division

February 9, 2018

JUSTICE D. SMYTH, III, et al., Defendants.


          L. Scott Coogler, United States District Judge.

         Before the Court is Defendants' Motion to Dismiss Justice D. “Jay” Smyth, III as a Defendant. (Doc. 154.) This motion has been fully briefed and is ripe for decision. For the following reasons, the Court determines the claims against Defendant Justice D. “Jay” Smyth (“Defendant Smyth”) are due to be DISMISSED.

         I. Facts

         Defendant Smyth passed away on February 10, 2017. [1] On February 16, 2017, counsel for Defendants filed a Suggestion of Death; a certificate of service showed that copies of the Suggestion were served on Plaintiff's counsel. (See Doc. 121 at 1-2.)

         Plaintiff's counsel states he and members of his firm diligently sought to identify the proper party to substitute in place of Defendant Smyth. (Doc. 156 Ex. 1 ¶ 2.) No estate has been opened for Defendant Smyth since his passing. Plaintiff spoke with Defendants' counsel about the opening of an estate that could be substituted for Defendant Smyth. Defendants' counsel stated that “there is no estate for [Defendant] Smyth, nor is there any present intent to probate one.” (Id. Ex. 2.) Plaintiff also monitored the Tuscaloosa Probate Records to see if any other party had filed a petition to open an estate for Defendant Smyth, but as of August 2017 no estate had been opened. Plaintiff determined that in the absence of an estate, “the proper parties to substitute would likely be [Defendant] Smyth's widow and children as ‘successors'.” (Doc. 156 at 4.)

         Since the February 16, 2017, Suggestion of Death, Plaintiff has not filed a motion to substitute a party for Defendant Smyth or asked the Court for a continuance of time in order to open an estate. Plaintiff did not serve Defendant Smyth's wife and children, even though he believed them to be Defendant Smyth's successors, as he “wanted to avoid any harm or suffering to the family that would otherwise be caused by having a process server show up unannounced to serve them personally with process.” (Doc. 156 Ex. 1 at 4.) Defendants' counsel filed the current Motion to Dismiss, arguing that this Court dismissed a deceased party-defendant in Graham v. TASA Group, 2:13-cv-00748-LSC, 2015 WL 875228 (N.D. Ala. Mar. 2, 2015) for plaintiff's failure to substitute under almost “identical circumstances.” (Doc. 154 at 2.) The Court instructed Plaintiff to show cause why Defendant Smyth should not be dismissed from this action due to Plaintiff's violation of Federal Rule of Civil Procedure 25. (See Doc. 155.) Plaintiff filed his Response in Opposition to Defendants' Motion on August 23, 2017, in which he also requests an extension of time to file a motion for substitution. (See Doc. 156.)

         II. Discussion

         Federal Rule of Civil Procedure 25 allows for substitution in the event that a party dies. According to Rule 25:

[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). The motion to substitute along with a notice of hearing must be served on the parties as provided in Rule 5 and nonparties as provided in Rule 4. Fed.R.Civ.P. 25(a)(3). While “Rule 25(a)(1) requires service, . . . it does not say which nonparties must be served” in order to start the ninety-day clock for a motion for substitution. Atkins v. City of Chicago, 547 F.3d 869, 873 (7th Cir. 2008). The parties' dispute focuses on whether Defendants' Suggestion of Death was sufficient to start the ninety-day deadline under Rule 25(a)(1).

         Defendants' motion, which argues that Defendant Smyth is subject to dismissal despite the nonservice of the Suggestion of Death upon his personal representatives or successors, is based upon this Court's holding in Graham, 2015 WL 875228. In Graham, this Court explicitly rejected Plaintiff's interpretation of Rule 25 that the ninety-day deadline did not begin until the deceased-defendant's personal representative has been served. As with the plaintiff in Graham, without citing any rule or case with precedential value in support, Plaintiff argues that the Suggestion of Death has to be served on Defendant Smyth's legal representative to start the ninety-day deadline to file a motion for substitution because that person is an appropriate non-party to this lawsuit. Plaintiff does not dispute that he was properly served under Rule 25(a). Even if Defendant Smyth's legal representative or successor could be considered a proper non-party to this lawsuit such that he or she had to also be served with the Suggestion of Death-again Plaintiff submits no binding authority to the Court to support such an argument-Plaintiff cannot now complain about an alleged defect in service to a non-existent, non-party and use that as an excuse for his failure to file a timely motion to substitute a party as required under Rule 25(a)(1). Likewise, Plaintiff argues that the Suggestion of Death must identify Defendant Smyth's personal representative or successor in order to start the ninety-day deadline, but Rule 25(a) nowhere mandates such a requirement, nor does any binding authority on this Court. See Fed. R. Civ. P. 25.

         Plaintiff's argument that Defendants must serve the Suggestion of Death upon a non-existent, non-party makes little sense. After a defendant's death, a plaintiff cannot legally recover any judgment against that defendant. Instead, a plaintiff must assert a claim against the estate of the defendant as a creditor. That Plaintiff has “undertook significant efforts to attempt to identify the proper parties to substitute for Mr. Smyth” and “further determined that, at the appropriate time, the proper parties to substitute would likely be Mr. Smyth's widow and children as ‘successors'” is an exercise in academics, as Plaintiff cannot substitute those parties until they are administrators of the estate. Defendants' counsel could not have served the Suggestion of Death upon the “personal representative” or “successor” to Defendant Smyth, because at the time of the filing of the Suggestion of Death those parties did not exist. See John Hancock Life Ins. Co. v. Allen, No. CIV.A. 13-0613-WS-B, 2014 WL 7336922, at *5 n.12 (S.D. Ala. Dec. 22, 2014) (“If the February 2012 Last Will and Testament of Ulysses Allen is admitted to probate (effectuating the terms of that document naming Ms. Walker as the executor of said Will), or if Ulysses Allen is deemed to have died intestate and the Probate Court nonetheless appoints Ms. Walker to administer the estate, then she may indeed have legal authority to speak and act on behalf of the Estate at some future time. . . . At present, however, those outcomes are mere hypotheticals that do not confer upon Ms. Walker the requisite standing to pursue a claim for the Annuity proceeds on behalf of the Estate.”). Who acts as a personal representative or successor of Defendant Smyth is a legal determination made by an Alabama state court. See Henderson v. Briarcliff Nursing Home, 451 So.2d 282, 283-84 (Ala. 1984), overruled on other grounds by Hayes v. Brookwood Hosp., 572 So.2d 1251 (Ala. 1990) (“The term ‘personal representative' includes an ‘executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status.' Such a status is judicially conferred, . . .” (quoting Ala. Code § 43-8-1(24))).

         State law controls the opening of an estate. In Alabama, where Defendant Smyth lived and passed away, if a will has been admitted to probate the judge of that court may issue letters testamentary to the persons named as the executor in such a will. Ala. Code § 43-2-20. If the will fails to name an executor, or the named executors fail to apply within 30 days of probate, the residuary and principle legatees are entitled to letters of administration. Ala. Code § 43-2-27. If the residual or principal legatee fail to apply for letters of administration or are otherwise unqualified, then the court should grant letters of administration as in a case of intestacy. Id.

         If a person dies intestate, then courts may grant letters of administration to a person willing ...

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