Powell v. Oldham

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

SCOTT TURNAGE, CORTEZ D. )

BROWN, DEONTAE TATE, JEREMY )

S. MELTON, ISSACCA POWELL, )

KEITH BURGESS, TRAVIS BOYD, )

TERRENCE DRAIN, and KIMBERLY )

ALLEN on behalf of themselves )

and all similarly situated )

persons, )

)

Plaintiffs, )

)

v. ) No. 2:16-cv-2907-SHM-tmp

)

BILL OLDHAM, FLOYD BONNER, )

JR., ROBERT MOORE, KIRK )

FIELDS, CHARLENE McGHEE, )

REGINALD HUBBARD, DEBRA )

HAMMONS, TIFFANY WARD, SHELBY )

COUNTY, TENNESSEE, TYLER )

TECHNOLOGIES, INC., GLOBAL )

TEL*LINK CORPORATION, )

SOFTWARE AG USA, INC., )

SIERRA-CEDAR, INC., SIERRA )

SYSTEMS GROUP, INC., and )

TETRUS CORP., )

)

Defendants. )

)

ORDER

Before the Court is the Plaintiffs’ September 6, 2019 Motion

for Substitution of Party. (ECF No. 245.) Defendants filed

responses on September 20, 2019. (ECF Nos. 252-58.) For the

following reasons, the motion is GRANTED.

I. Background

Plaintiffs bring a putative class action against Shelby

County and Shelby County officials Bill Oldham, Robert Moore,

Charlene McGhee, Debra Hammons, Floyd Bonner, Jr., Kirk Fields,

Reginald Hubbard, and Tiffany Ward, in their individual and

official capacities (collectively, the “Shelby County

Defendants”). (ECF No. 218.) Plaintiffs also sue six private

corporations: Tyler Technologies, Inc.; Global Tel*Link

Corporation; Software AG USA, Inc.; Sierra-Cedar, Inc.; Sierra

Systems Group, Inc.; and Tetrus Corporation (collectively, the

“Company Defendants”). (Id.)

Plaintiffs claim they were unlawfully detained at the Shelby

County Jail following the County’s installation of a new computer

tracking system. (Id. ¶¶ 35-43.) Plaintiffs bring claims for

injunctive relief, declaratory relief, and damages against the

Shelby County Defendants under 42 U.S.C. § 1983 for violations

of Plaintiffs’ Fourth and Fourteenth Amendment rights. (Id.

¶¶ 138-49, 179-91.) Plaintiffs bring common-law negligence

claims against the Company Defendants for negligently

developing, installing, and implementing the County’s computer

tracking system. (Id. ¶¶ 150-78.)

Plaintiff Issacca Powell died on February 4, 2019. (ECF

No. 245.) On August 22, 2019, the Shelby County Probate Court

appointed Aubrey L. Brown as administrator ad litem of Powell’s

estate. (Id.)

Plaintiffs ask the Court to substitute Brown, the

administrator ad litem of Powell’s estate, for Powell. (Id.)

The Shelby County Defendants filed a response that the Company

Defendants have joined. (ECF No. 253; see also ECF Nos. 252,

254-58.)

II. Analysis

A. Substitution Under Rule 25(a)(1)

Plaintiffs’ request for substitution is governed by Rule

25(a)(1) of the Federal Rules of Civil Procedure, which 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 or against

the decedent must be dismissed.

Fed. R. Civ. P. 25(a)(1).1 “The language of Rule 25 is permissive

and the decision to substitute a party lies within the sound

discretion of the Court.” Watts v. Novartis Pharm. Corp., No.

08-cv-2354, 2015 WL 1456647, at *4 (N.D. Ohio Mar. 30, 2015)

(citing In re Baycol Prods. Litig., 616 F.3d 778, 783 (8th Cir.

2010)).

1 Plaintiffs’ motion is timely under Rule 25(a)(1). On June 11,

2019, Plaintiffs notified the Court and the parties that Powell had

died. (ECF No. 212.) Plaintiffs filed this motion on September 6,

2019. (ECF No. 245.)

The first issue is whether Powell’s claims were

“extinguished” by his death. Whether the death of a party

extinguishes a claim is a substantive question that state law

ordinarily governs. Huggard v. United Performance Metals, Inc.,

No. 10-cv-0063, 2011 WL 6817770, at *1 (S.D. Ohio Dec. 28, 2011)

(citing 7C Charles Alan Wright et al., Federal Practice and

Procedure § 1952 (3d ed. 2019)), adopted by 2012 WL 368222 (S.D.

Ohio Feb. 3, 2012).

The survivorship law of the forum state determines whether

a § 1983 claim survives a plaintiff’s death, provided the forum

state’s law is “not inconsistent with the Constitution and laws

of the United States.” Robertson v. Wegmann, 436 U.S. 584, 588

(1978) (quoting 42 U.S.C. § 1988)). A state’s survivorship law

is inconsistent with federal law when it is “inconsistent with

the federal policy underlying the cause of action under

consideration.” Id. at 590 (quoting Johnson v. Ry. Express

Agency, Inc., 421 U.S. 454, 465 (1975)). The policies underlying

§ 1983 claims include “(1) compensation of persons for injuries

caused by deprivations of their federal rights and (2) deterrence

of deprivation of rights.” Frontier Ins. Co. v. Blaty, 454 F.3d

590, 600-01 (6th Cir. 2006) (citing Robertson, 436 U.S. at 590-

91).

Section 1983 claims are “best characterized as personal

injury actions” when determining whether they survive a

plaintiff’s death under the forum state’s law. Crabbs v. Scott,

880 F.3d 292, 295 (6th Cir. 2018). In Tennessee, “[n]o civil

action commenced, whether founded on wrongs or contracts, except

actions for wrongs affecting the character of the plaintiff,

shall abate by the death of either party.”2 Tenn. Code Ann.

§ 20-5-102. “Claims for personal injuries survive” a plaintiff’s

death in Tennessee. Estate of Sanders v. Jones, 362 F. Supp. 3d

463, 466 (W.D. Tenn. 2019) (quoting Can Do, Inc. Pension and

Profit Sharing Plan and Successor Plans v. Manier, Herod,

Hollabaugh & Smith, 922 S.W.2d 865, 867 (Tenn. 1996)).

Defendants do not argue that Tennessee’s survivorship rule

is inconsistent with the policies underlying § 1983 claims.

Tennessee law applies to Powell’s § 1983 claims. Under Tennessee

law, the claims survive.

The survivorship law of the forum state also determines

whether a claim brought under state common law survives a

plaintiff’s death. 7C Charles Alan Wright et al., Federal

Practice and Procedure § 1954 (3d ed. 2019). Powell’s common-

law negligence claims against the Company Defendants are “claims

for personal injuries” that survive his death. Can Do, Inc.,

922 S.W.2d at 867. Thus, both Powell’s § 1983 claims and his

2 Cases “affecting the character of the plaintiff” include such

causes of action as libel, slander, and malicious prosecution.

Bowman v. Hart, 33 S.W.2d 58, 59 (Tenn. 1930).

common-law negligence claims survive and are not “extinguished”

under Rule 25(a)(1).

The second issue is whether Brown, as administrator ad litem

of Powell’s estate, is a proper party for substitution under

Rule 25(a)(1). This is “a substantive issue, for which we must

rely on state law.” Watts, 2015 WL 1456647, at *6 (quoting

Baycol, 616 F.3d at 787-88). In Tennessee, a decedent’s personal

injury suit may be revived by the administrator of the decedent’s

estate and prosecuted in the administrator’s name for the benefit

of the estate. See Tenn. Code Ann. § 20-5-104; Gipson v. Memphis

St. Ry. Co., 364 S.W.2d 110, 117 (Tenn. Ct. App. 1962) (“Where

an injured party brings suit for personal injuries and thereafter

dies from other supervening causes such suit for personal

injuries may be revived in the name of the plaintiff’s personal

representative . . .”). The Shelby County Probate Court has

appointed Brown as administrator ad litem “to represent the

interest of the estate of the decedent.” (ECF No. 245-1.)

Plaintiffs and Defendants agree that Brown is a proper party to

prosecute Powell’s surviving claims. (ECF No. 245-2 at 4-5; ECF

No. 253 at 2.) Substitution of Brown for Powell is proper under

Rule 25(a)(1).

B. Class Action Considerations

Defendants do not dispute that Brown is a proper substitute

under Rule 25(a)(1). They argue that the Court should exercise

its discretion to deny Plaintiffs’ motion for substitution

because Brown “cannot properly be named as a putative class

representative.” (ECF No. 253 at 2.)

Defendants rely on two distinct class action concepts:

justiciability and class certification. See Fallick v.

Nationwide Mut. Ins. Co., 162 F.3d 410, 422 (6th Cir. 1998)

(distinguishing “the issue of a plaintiff’s standing under

Article III vis-a-vis a defendant” with “the relationship between

a potential class representative and absent class members, which

is governed by Rule 23 of the Federal Rules of Civil Procedure”).

A plaintiff in a class action must have individual standing to

sue the defendant, and typically must maintain that standing

until a class is certified. Wilson v. Gordon, 822 F.3d 934,

941-42 (6th Cir. 2016). This is the justiciability issue.

Separately, a plaintiff in a class action may serve as a class

representative only if she meets the requirements of Federal

Rule of Civil Procedure 23. Fallick, 162 F.3d at 423. For

example, she must prove that she “will fairly and adequately

protect the interests of the class.” Fed. R. Civ. P. 23(a)(4).

This is the class certification issue.

Addressing justiciability, Defendants argue that Powell’s

death moots his § 1983 claims for injunctive relief.3 (ECF No.

3 Defendants concede that Powell’s claims for damages under § 1983

are not moot. (ECF No. 253 at 3.)

253 at 2-3.) Death ordinarily moots a plaintiff’s claims for

injunctive relief because “she no longer has a legally cognizable

interest in the outcome.” Immel v. Lumpkin, 408 F. App’x 920,

921 (6th Cir. 2010) (quoting United States v. City of Detroit,

401 F.3d 448, 450 (6th Cir. 2005)). Defendants’ mootness

argument, however, does not bear on the Court’s decision about

whether to substitute Brown for Powell. It bears on whether

Powell’s claim remains justiciable. Ordinarily, a defendant

seeking the dismissal of a claim on mootness grounds files a

motion to dismiss the claim. See, e.g., Hoza v. Jefferson Cty.

Teachers Ass’n, No. 09-cv-0764, 2010 WL 1533298, at *7 (W.D. Ky.

Apr. 15, 2010) (granting motions to dismiss plaintiffs’ class

action claims as moot); see also Wilson, 822 F.3d at 942 (“‘Where

. . . [a] named plaintiff’s claim becomes moot before

certification,’ the ordinary rule is that ‘dismissal of the

action is required.’”) (quoting Brunet v. City of Columbus, 1

F.3d 390, 399 (6th Cir. 1993)). Defendants are free to file a

motion to dismiss. If they do, Plaintiffs will have an

opportunity to respond, and the Court will consider the parties’

arguments.

Addressing class certification, Defendants argue that Brown

would not be able to represent a class pursuing claims for

injunctive relief or damages. (ECF No. 253 at 3-7.) Defendants

argue that Brown cannot represent a class pursuing claims for

injunctive relief because Powell no longer has individual

standing to pursue those claims. (Id. at 3-5.) Defendants argue

that Brown cannot represent a class pursuing claims for damages

because he cannot meet the requirements an estate administrator

must satisfy before he can serve as a class representative.

Those requirements include: (1) that all beneficiaries of the

estate consent to the litigation; and (2) that the administrator

affirm that the estate will not bear the costs of the litigation

personally. (Id. at 5-6); see also 1 William B. Rubenstein,

Newberg on Class Actions § 3:71 (5th ed. 2019).

Defendants’ arguments about whether Brown can serve as a

class representative do not bear on the Court’s decision about

whether to substitute Brown for Powell at this juncture. “Before

ruling on class certification this Court must conduct a ‘rigorous

analysis.’” Faktor v. Lifestyle Lift, No. 09-cv-0511, 2009 WL

1565954, at *2 (N.D. Ohio June 3, 2009) (quoting Gen. Tel. Co.

v. Falcon, 457 U.S. 147, 161 (1982)). The parties are engaged

in class discovery. (Second Am. Sched. Order, ECF No. 244 at

2.) Plaintiffs will not file class certification motions until

late next year, at the earliest. (Id.) The Court declines

Defendants’ invitation to decide appropriate class

representatives before then. See Geary v. Green Tree Servicing,

LLC, No. 14-cv-00522, 2015 WL 1286347, at *17 (S.D. Ohio Mar.

20, 2015) (“deem[ing] it prudent to assess the propriety of class

certification in the context of a fully briefed class

certification motion”); Eliason v. Gentek Bldg. Prods., Inc.,

No. 10-cv-2093, 2011 WL 3704823, at *2-3 (N.D. Ohio Aug. 23,

2011) (same).

Substitution of Brown for Powell is proper and useful. It

may serve functional ends. Brown could serve as a class

representative for a damages subclass. See Weathers v. Peters

Realty Corp., 499 F.2d 1197, 1200 (6th Cir. 1974) (noting that,

“[i]f both injunctive or declaratory relief, and monetary damages

are sought, it is permissible under [Rule 23] to have sub-

classes”); see also Gutierrez-Rodriguez v. R.M. Galicia, Inc.,

No. 16-cv-00182, 2018 WL 1470198, at *2 (S.D. Cal. Mar. 26, 2018)

(approving separate “injunctive” and “damages” settlement

classes). If the Court declines to certify a class in this case,

Brown could continue to pursue Powell’s individual claims. See

Macula v. Lawyers Title Ins. Corp., No. 07-cv-1545, 2010 WL

1278868, at *2 (N.D. Ohio Mar. 30, 2010) (allowing class action

plaintiff to continue to pursue individual claims after denial

of class certification motion). Substitution of Brown for Powell

is appropriate.

III. Conclusion

For the foregoing reasons, Plaintiffs’ Motion for

Substitution of Party is GRANTED.

So ordered this 22nd day of October, 2019.

/s/ Samuel H. Mays, Jr.

Samuel H. Mays, Jr.

UNITED STATES DISTRICT JUDGE