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Ball v. Brown

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

November 5, 2019

JIM HENRY BALL, JR., Plaintiff,
v.
TIMOTHY BROWN, et al., Defendants.

          MEMORANDUM OPINION

          R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE

         This matter is before the court on four pending motions (Docs. # 223, 225, 228, 229), all filed by Plaintiff. Three of the Motions (Docs. # 223, 225, 228) were filed in response to the Defendant's Suggestion of Death (Doc. # 207). The court construes Plaintiff's fourth motion, titled “Written Objections” to the Court's Order (Doc. # 229), as a Motion to Reconsider its Order denying Plaintiff's previous Motion to Reconsider (Docs. # 210, 217).

         After careful consideration, each of Plaintiff's Motions (Docs. # 223, 225, 228, 229) is due to be denied.

         I. Background

         On July 11, 2019, Defendant's filed a Suggestion of Death of Defendant Timothy Brown (Doc. #207). The Motion stated that Timothy Durand Brown passed away on November 14, 2018. (Id.) Defendant Timothy Brown's photograph and obituary were attached to Motion. (Docs. # 207, 207-1). In response, the court held a status conference on August 28, 2019. (Docs. # 216, 230).[1]

         At the status conference, Plaintiff repeatedly asserted that the Timothy Brown pictured in the obituary attached to Defendant's Suggestion of Death (Doc. # 207-1) was not the “correct” or “right” Timothy Brown. (Doc. # 230 at 5, 6, 9, 11). Instead, Plaintiff stated the person who allegedly violated his rights was a different Timothy Brown. (Id.). Plaintiff intermittently referred to the person who allegedly violated his rights as “Brown, ” “T. Brown, ” and “Sargent Timothy Brown”. (Id.) The court explained to Plaintiff, that based on his representations, Defendant Timothy Brown was an improper party and should be dismissed. (Id. at 5-6). By extension, the court explained further, Defendant Timothy Brown's estate was not an appropriate party. (Id.) Defense counsel clarified that there was only one Timothy Brown employed by the Birmingham City Jail at the time of Plaintiff's alleged civil rights violations.[2] (Id. at 7-8). Plaintiff continued to insist that Defendant Timothy Brown was not the “correct” Defendant. (Id. at 9, 11).

         Once again, the court explained that Plaintiff would not be able to substitute Defendant Timothy Brown's estate if he was not a proper party to this action. (Id. at 14-16). In response, during the hearing, Plaintiff abruptly (and without any explanation) changed course. (Id.) He declared that the man in the obituary photo was, in fact, the “correct” Timothy Brown after all. (Id. at 16-19). When the court asked Plaintiff to explain his sudden backtracking, Plaintiff did not have an explanation.[3] (Id. at 16-20). Plaintiff then requested to substitute the estate of Defendant Timothy Brown. (Id. at 16).

         The court warned Plaintiff that, based on his previous statements, if he substituted the estate of Defendant Timothy Brown, Defendant's could present Plaintiff's statements to the jury at trial. (Id. at 21). Further, the court warned Plaintiff that if Brown were added, and subsequently prevailed at trial, the personal representative of Defendant Timothy Brown's estate could pursue a claim against Plaintiff for litigating in bad faith. (Id.).

         In response, Plaintiff stated that he was trying to retain a local attorney, Mr. David Gespass, to help him with issues (such as these) at trial.[4] (Id. at 22). At the end of the status conference, the court advised Plaintiff to consult with an attorney, including but not limited to, Mr. Gespass. (Id.). The court set a status conference for September 23, 2019 to follow-up with Plaintiff. (Doc. # 222).

         Prior to the September 23 conference, Plaintiff filed two motions. (Docs. # 223, 225). First, Plaintiff filed a Motion to Substitute Defendant Timothy Brown's estate as a party. (Doc. # 223). Second, Plaintiff filed a Motion to Amend the Motion to Substitute Defendant Timothy Brown's Estate. (Doc. # 225). In response, Defendants filed Objections to Plaintiff's Motion for Substitution. (Doc. # 224). According to Defendants, “[Plaintiff's] [M]otion is frivolous, improper, and a waste of judicial time. [Plaintiff] has filed a pleading that contradicts his earlier representations to the Court.” (Doc. # 224 at 2-3). Additionally, counsel for Defendant's provided that “[u]pon information and belief, Defendant Timothy Brown does not have an estate open.” (Id. at 2, n. 3).

         At the September 23, 3019 status conference, Plaintiff stated that he was not able to consult with an attorney, including Mr. Gespass. According to Plaintiff, Mr. Gespass has a conflict that prevents him from trying the case. Plaintiff also consulted with several of Mr. Gespass's colleagues, but they were either unable or unwilling to represent him. Despite his lack of representation, Plaintiff stated that he intendeds to pursue a claim against the estate of Defendant Timothy Brown. The court reminded Plaintiff of the ramifications of substituting Defendant Timothy Brown's estate after his statements at the August 28, 2019 status conference. Plaintiff acknowledged that he understood.

         At the conclusion of the status conference, Plaintiff was ordered to notify the court, on or before October 1, 2019, whether he intended to pursue a claim against Defendant Timothy Brown's estate. (See Doc. # 226). On September 27, 2019, Plaintiff filed two motions. First, Plaintiff filed a Motion to Strike (Doc. # 228), in which he notified the court that he intends to pursue a claim against Defendant Timothy Brown's estate. In the same Motion, Plaintiff asks the court to strike his August 28, 2019 statements about Defendant Timothy Brown not being the “correct” or “right” Timothy Brown. (Id.). Second, Plaintiff filed Written Objections to the court's Order on Plaintiff's Motion to Reconsider. (Docs. # 217, 229). The court construes Plaintiff's “Written Objections” as a Motion to Reconsider Plaintiff's previous Motion to Reconsider the court's Order granting summary judgment to the City of Birmingham, Deidra Daniels, Emantic Bradford, and Freida Taylor, as well as remanding count nine to state court. (See Docs. # 204, 205, 210, 217, 229). Stated differently, Plaintiff's “Written Objections” are a Motion to Reconsider the court's Order on Plaintiff's previous Motion to Reconsider.

         The court addresses each of Plaintiff's Motions, in turn. (Docs. # 223, 225, 228).

         II. Motion to Substitute

         In three of Plaintiff's motions - his Motion to Substitute, Motion to Amend the Motion for Substitution, and Motion to Strike -- Plaintiff asks the court to substitute Defendant Timothy Brown's estate for Defendant Timothy Brown. (Docs. # 223, 225, 228). Because Plaintiff is appearing pro se and because this area of the law is far from clear, the court first discusses the Rule 25 procedural hurdles a party must clear to substitute an estate for a deceased party.

         According to Federal Rule of Civil Procedure 25(a):

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 . . . A motion to substitute, together with a notice of hearing, must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death must be served in the same manner. . . .

         Fed. R. Civ. 25. In sum, Rule 25 contemplates: (1) survival of a claim; (2) a notification or suggestion of death; and (3) a motion to substitute. All three of these prongs are governed by strict procedural requirements. Schmidt v. Merrill Lynch Tr. Co., No. 507-CV-382-OC-10GRJ, 2008 WL 2694891, at *3 (M.D. Fla. June 30, 2008) (“Strict adherence to the procedural formalities is required under Rule 25(a).”).

         A. Survival of Plaintiff's Claim

         A prerequisite to a Rule 25(a) analysis is a determination of whether the claim survives death. Plaintiff has not argued or provided authority regarding the survival of his claim against Defendant Timothy Brown's estate. However, as Plaintiff is pro se, the court assumes the task of ...


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