where the appellate court upheld a district court’s extension of the Rule 25(a) 90-day limit when “the failure to file in time was the result of excusable neglect”
How later courts described this case
- where the appellate court upheld a district court’s extension of the Rule 25(a) 90-day limit when “the failure to file in time was the result of excusable neglect”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ELIZABETH MCDONALD, CASE NO. 1:19-CV-00334
Plaintiff,
-vs- JUDGE PAMELA A. BARKER
MEDINA CITY BOARD OF EDUCATION, et
al., MEMORANDUM OF OPINION AND
ORDER
Defendants.
Currently pending is Defendants’ Motion to Dismiss for Failure to Comply with Rule 25(a)
of the Federal Rules of Civil Procedure filed on March 13, 2020 (“Defendants’ Motion”). (Doc. No.
23.) On April 13, 2020, Plaintiff’s counsel filed a Memorandum in Opposition to Defendants’ Motion
to Dismiss (“the Opposition”). (Doc. No. 24.) On April 27, 2020, Defendants filed their Reply
Memorandum in Support of Defendants’ Motion (“Defendants’ Reply”). (Doc. No. 25.) For the
reasons set forth below, Defendants’ Motion is GRANTED, and Plaintiff’s Complaint is dismissed,
without prejudice.
Elizabeth McDonald, now deceased, initiated the instant lawsuit on February 13, 2019. (Doc.
No. 1.) On July 24, 2019, a Suggestion of Death of Plaintiff was filed that reads as follows:
Pursuant to Rule 25(a) of the Federal Rules of Civil Procedure, counsel for Plaintiff
suggests upon the record the death of Plaintiff Elizabeth McDonald, which occurred
on or about June 13, 2019. Counsel anticipates that the fiduciary of Plaintiff’s estate
will file a motion for substitution of party as soon as the estate is able.
(Doc. No. 21 at 1.) The Certificate of Service reflects that a true and correct copy of the Suggestion
of Death was electronically filed using the Court’s electronic filing system, and that the “Parties may
access the document through the electronic filing system.” (Doc. No. 21 at 2 (emphasis added).) It
does not appear, then, that service of the Suggestion of Death was made upon any potential fiduciary,
including Elizabeth McDonald’s surviving spouse, Tom McDonald, that Plaintiff’s counsel later
indicated intended to seek approval from the probate court to substitute as the plaintiff herein.
On August 22, 2019, the Court issued a non-document Order that reads in relevant part as
follows: “If the fiduciary has not filed a motion for substitution of party by 10/24/20[19], then
Counsel for Plaintiff is ordered to file a status report by that date advising the court [of] the anticipated
date by which such motion will be filed.” On October 24, 2019, Plaintiff’s Status Report was filed.
(Doc. No. 22.) Therein, it was represented that “Plaintiff’s surviving spouse, Tom McDonald, intends
to seek the Court’s approval for substitution as plaintiff in this matter, as fiduciary for Plaintiff’s
Estate”; and that “Mr. McDonald is not yet able to submit a motion for substitution for the Court’s
approval at this time, as the Medina County Probate Court has not yet appointed him fiduciary of the
estate.” (Id.) Plaintiff’s counsel then requested that the Court provide Mr. McDonald an additional
60 days to obtain the necessary appointment as fiduciary and seek substitution in this case. On
November 8, 2020, the Court issued a non-document Order granting Mr. McDonald’s request made
through Plaintiff’s counsel, meaning that Mr. McDonald would have until December 23, 2020, or
sixty days from the date of his request, to file a motion for substitution.
A motion for substitution was not filed by Mr. McDonald by that date or, indeed, at any time
prior to the filing of Defendants’ Motion. Citing and quoting from Premoh v. City of Cincinnati, No
1:15-CV-265, 2016 WL 2858900, at *5 (S.D. Ohio May 13, 2016), Defendants argue that the 90-day
requirement for the filing of a motion for substitution post-service of a statement noting the death, or
the suggestion of death is mandatory and that this Court does not have discretion to excuse Plaintiff’s
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failure to timely file the motion. This Court disagrees and is not persuaded by the case law cited and
relied upon by Defendants.
In the Opposition, Plaintiff’s counsel “asks the Court to allow Plaintiff’s estate to file a motion
for substitution within 14 days after an executor for the estate is appointed.” (Doc. No. 24 at 1.) In
the alternative, Plaintiff’s counsel “asks that the Court dismiss the case without prejudice as to
refiling, so that the estate may resolve the question of executor without causing the Court any burden
on its resources.” (Id.) Plaintiff’s counsel reiterates his assertion initially made in the Status Report
that Tom McDonald has not yet been able to obtain a designation of executor from the probate court
and thus has not yet been able to file a motion for substitution in this case. And, as was the case with
the Status Report filed, the Opposition does not set forth any facts established by a declaration and/or
documentary evidence demonstrating what steps, if any, have been taken by Tom McDonald to secure
probate court appointment as the executor, and when his appointment might be expected to be
secured.
In the Opposition, Plaintiff’s counsel correctly cites Tatterson v. Koppers Co. Inc., 104 F.R.D.
19 (W.D. Pa. 1984) for the proposition that “[i]t is proper to allow an extension of time under Rule
6(b), for motion for substitution of party for deceased party beyond 90-day limit of Rule 25(a) where
failure to file within 90-day limit was caused by delays in appointment of executor for deceased
plaintiff’s estate, and no prejudice to defendant will result.” (Doc. No. 24 at 1.) In Tatterson, the
court explained:
[T]he history of Rule 25(a) and Rule 6(b) makes it clear that the 90 day time period
was not intended to act as a bar to otherwise meritorious actions, and extensions of the
period may be liberally granted. The factors to be considered by the Court before
allowing a substitution of parties after the expiration of the time period include any
prejudice to the other party, good faith, and excusable neglect.
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In the instant case, Plaintiff’s counsel states that he could not move for substitution
within the time period because of delays in the appointment of David Tatterson as
executor of Plaintiff’s estate. Although it would have been preferable if Plaintiff’s
counsel had moved for an enlargement of time during the 90 day period, this Court
finds no bad faith in his failure to do so.
104 F.R.D. at 20 (internal citations omitted); see also Continental Bank, N.A. v. Meyer, 10 F.3d 1293,
1297 (7th Cir. 1993) (where the appellate court upheld a district court’s extension of the Rule 25(a)
90-day limit when “the failure to file in time was the result of excusable neglect”); Russell v. City of
Milwaukee, 338 F.3d 662, 668 (7th Cir. 2003); Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467, 470
(2d Cir. 1998).
While agreeing with Plaintiff’s counsel that there is authority for extending the 90-day
deadline, and in this Court’s assessment the weight of authority appears to support granting
extensions under certain circumstances such as those involved herein when timely requested, and
indeed, this Court has done so once based upon the request for same set forth in the Status Report he
filed, the fact remains that no request for an additional extension of time was made within the first
60-day extension given by the Court. And, Plaintiff’s counsel does not include in the Opposition,
any reason or basis for failing to request additional time that would constitute excusable neglect and
therefore, a basis for extending the time in the context of this pending case. See Atkins v. City of
Chicago, 547 F.3d 869, 872 (7th Cir. 2008).
Plaintiff’s counsel also argues that because the Suggestion of Death that he filed on July 24,
2019 does not name the proper successor, as none has yet been determined, the filing of it does not
start the clock on the 90-day filing requirement under Fed. R. Civ. P. 25(a), citing Dietrich v. Burrows,
164 F.R.D. 220 (N.D. Ohio 1995). In Defendants’ Reply, Defendants attempt to distinguish that case
from the instant matter by pointing out that in Dietrich v. Burrows, it was the defendants who filed
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the notice of death, whereas herein, “Plaintiff’s counsel filed the Suggestion of Death and [he] should
not be able to avoid dismissal by arguing the Suggestion of Death he prepared and filed is not
effective.” (Doc. No. 25 at 2.) Additionally, Defendants correctly cite case law for the proposition
that nothing in Rule 25(a)(1) requires that a suggestion of death must identify a successor or
representative. However, the case of Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467, 470 (2d Cir.
1998) is cited by the Defendants for the proposition that Rule 25(a)(1) “does not require that the
statement identify the successor or legal representative; it merely requires that the statement of
death be served on the involved parties.” (Doc. No. 25 at 2-3 (emphasis added).) But, according
to the Seventh Circuit Court of Appeals, “the cases are unequivocal that an obviously interested
nonparty [the decedent’s spouse or non-party with the biggest stake in the continuation of the case]
must be served for the 90-day clock to start running.” Atkins, 547 F.3d at 873. Recognizing that
since Plaintiff’s counsel set forth his understanding that Tom McDonald intended to be appointed the
executor of his wife’s estate, Tom McDonald may very well be aware of the filing of the Suggestion
of Death, the fact remains that there is no indication that Tom McDonald was actually served with
the Suggestion of Death.
In the final analysis, the Court believes that the best course of action, and one proposed by
Plaintiff’s counsel so as not to burden the Court or its resources, is to dismiss the case without
prejudice pursuant to Fed. R. Civ. P. 41(a)(2), allowing for timely refiling if and when Tom
McDonald or someone else is actually appointed the executor of Elizabeth McDonald’s estate.
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IT IS SO ORDERED.
s/Pamela A. Barker
PAMELA A. BARKER
Date: April 30, 2020 U. S. DISTRICT JUDGE
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