A.T. v. The School Board of Brevard County

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

A.T. and JULIA BARNEY,

Plaintiffs,

v. Case No: 6:24-cv-35-CEM-DCI

THE SCHOOL BOARD OF BREVARD

COUNTY and TIMOTHY MICHAEL

LISCUM,

Defendants.

ORDER

This cause comes before the Court for consideration without oral argument on the

following motion:

MOTION: Plaintiff’s Motion to Substitute Party (Doc. 29)

FILED: May 10, 2024

THEREON it is ORDERED that the motion is DENIED without prejudice.

On April 25, 2024, Plaintiffs filed a Suggestion of Death Upon the Record as to Defendant

Timothy Michael Liscum (Defendant Liscum). Doc. 26 (the Suggestion of Death). Plaintiffs have

now filed a Motion for Order Requiring Substitution of Personal Representative for Deceased

Defendant Liscum. Doc. 29 (the Motion). Plaintiffs assert that the claim against Defendant

Liscum was not extinguished upon the death and “Plaintiff’s have the right to require the

substitution of the personal representative of the deceased defendant’s estate as the proper-party-

defendant to allow Plaintiffs to proceed with their claims” and, therefore, “move the Court for

entry of an Order directing the Personal Representative of the Estate of Timothy Michael Liscum

be substituted as the property [sic] party defendant in this action.” Id. at 3.

The Motion is due to be denied because Plaintiff has not demonstrated service. Rule 25

provides:

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 and against the decent

must be dismissed.

Fed.R.Civ.P. 25(a)(1).

Rule 25 sets forth the following requirements regarding service:

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. Service may be made in any

judicial district.

Fed.R.Civ.P. 25(a)(3).

Here, there is nothing before the Court to reflect service of the Notice or the Motion on the

personal representative of the estate—the non-party Plaintiffs seek to substitute. See Docs. 18, 19.

“Requiring personal service on the successor or representative of a decedent’s estate ensures that

those with the legally cognizable interest in the ongoing litigation: (1) receive actual notice of the

lawsuit; and (2) are made aware of the corresponding substitution requirement.” Schmidt v. Merrill

Lynch Trust Co., 2008 WL 2694891, at *3 (M.D. Fla. June 30, 2008). Since Plaintiffs have not

demonstrated compliance with Rule 25(a)(3), it is not clear to the Court whether the personal

representative is aware of the lawsuit, the suggestion of death, or the request for substitution.

Accordingly, Plaintiffs are not entitled to relief. See McGuinnes v. Novartis Pharms. Corp., 2013

WL 425331, at *2 (M.D. Fla. Feb. 4, 2013) (“[T]he party that filed the suggestion must serve

nonparty successors or representatives of the decedent with the suggestion of death, consistent

with Federal Rule of Civil Procedure 4.”).

The Court notes that Plaintiffs certify that counsel of record was served with the Notice

and Motion through CM/ECF. Doc. 26/29. But service on Defendant Liscum’s attorney is

inadequate. Schmidt v. Merrill Lynch Trust Co., 2008 WL 2694891, at *3 (M.D. Fla. June 30,

2008) (“An attorney’s agency to act on behalf of a client terminates upon that client’s death.”).

“There is no guarantee that the deceased party’s attorney will act to protect the legal interests of

the decedent’s successor(s) or representative(s), decedent’s attorney cannot accept service on

behalf of the legal successors or representatives.” Jd. at *2. As such, to the extent Plaintiffs claim

that the personal representative has been served through Defendant’s attorney, the Court is not

convinced. See Estate of Williams v. Douglas Cty., 2017 WL 11448858, at 2* (N.D. Ga. Jan. 9,

2017) (finding that although the plaintiffs’ counsel generated the suggestion of death and attached

it to the motion to substitute along with certificates of service showing electronic service on all

counsel of record through CM/ECF, the plaintiffs were required to serve the personal

representative according to Rule 4).

Based on the foregoing, it is ORDERED that the Motion (Doc. 29) is DENIED without

prejudice. "

DONE AND ORDERED in Orlando, Florida on May 28, 2024.

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Copies furnished to: UNITED STATES MAGISTRATE JUDGE

Counsel of Record

Unrepresented Parties