United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE
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,
careful consideration, each of Plaintiff's Motions (Docs.
# 223, 225, 228, 229) is due to be denied.
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).
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. (Id. at 7-8).
Plaintiff continued to insist that Defendant Timothy Brown
was not the “correct” Defendant. (Id. at
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. (Id. at 16-20). Plaintiff then
requested to substitute the estate of Defendant Timothy
Brown. (Id. at 16).
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.
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. (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).
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.
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.
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
court addresses each of Plaintiff's Motions, in turn.
(Docs. # 223, 225, 228).
Motion to Substitute
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
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. . .
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
Survival of Plaintiff's Claim
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