Campos v. Shepherd

Southern District of Texas

ENTERED

October 03, 2025

UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk

SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

TYRA CAMPOS, et al., §

Plaintiffs,

V. CIVIL ACTION NO. 2:24-CV-00040

WILLIAM SHEPHERD, ef al.,

Defendants.

ORDER ADOPTING IN PART AND REJECTING IN PART MEMORANDUM &

RECOMMENDATION

This personal injury action arises from a car collision. (D.E. 1, p. 1). After Defendant

William Shepherd passed away, Defendant Gwenyth Shepherd filed a notice of death. (D.E. 5).

From there, Federal Rule of Civil Procedure 25 permits any party or the decedent’s successor or

representative to move for substitution of the proper party. Fed. R. Civ. P. 25(a)(1). However, “[i]f

the motion [for substitution] is not made within 90 days after service of a statement noting the

death, the action by or against the decedent must be dismissed.” /d. Plaintiffs did not move for

substitution within Rule 25(a)(1)’s ninety-day time limit, so Defendants moved to dismiss the

claim against the decedent. (D.E. 14). Plaintiffs moved to extend or reopen the deadline for

substitution of parties and to substitute the proper party. (D.E. 20).

The Court referred this case to Magistrate Judge Mitchel Neurock for all pretrial purposes.

(D.E. 30). Before the Court is Magistrate Judge Neurock’s Memorandum and Recommendation

(“M&R”), which recommends the Court deny Defendant’s amended motion to dismiss and grant

Plaintiffs’ motion to extend or reopen the substitution deadline. (D.E. 33, p. 1). Defendant

Gwenyth Shepherd filed written objections, (D.E. 36), to which Plaintiff's filed a response, (D.E.

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37), to which Defendant replied, (D.E. 40).!

After reviewing the unobjected portions of the M&R for clear error and the objected

portions de novo, the Court ADOPTS in part and REJECTS in part the M&R’s findings and

recommendations. (D.E. 33). Specifically, the Court agrees Plaintiffs failed to timely move for

substitution but disagrees that Plaintiffs have shown this failure resulted from excusable neglect.

Accordingly, the Court GRANTS Defendant’s amended motion to dismiss Plaintiffs’ negligence

claim against the decedent, (D.E. 14), and DENIES Plaintiffs’ motion to extend or reopen the

deadline for substitution of parties, (D.E. 20).

I. Background

Plaintiffs Tyra Campos and Jason Zhao sued Defendant William Shepherd for negligence

and Defendant Gwenyth Shepherd for negligent entrustment? arising from an automobile collision.

(D.E. 1-3, p. 2-3). Defendants removed the case based on diversity jurisdiction. (D.E. 1, p. 2).

On May 7, 2024, Defendants filed a notice that William Shepherd had passed away.

(D.E. 5). The next week, the parties filed their joint discovery/case management plan. (D.E. 6). In

this joint filing, the parties recognized “a representative of the estate of William Shepherd will

have to appear because Mr. Shepherd is deceased.” /d. at 1. August 5, 2024 marked the ninetieth

day following the notice of Mr. Shepherd’s death. See (D.E. 5). Plaintiffs did not file a motion for

substitution by this date.

On December 3, 2024, Defendants filed a motion to dismiss the claims against William

' Though neither Federal Rule of Civil Procedure 72(b)(2) nor the Court’s Local Rules contemplate replies

to objection responses, the Court granted Defendant’s motion for leave to file a reply. (D.E. 39, p. 1-2).

* The Court granted summary judgment dismissal of Plaintiffs’ negligent entrustment claim against

Gwenyth Shepherd. (D.E. 42, p. 1-2). Accordingly, all that remains is Plaintiffs’ negligence claim against

William Shepherd.

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Shepherd. (D.E. 14) (amended motion to dismiss); see also (D.E. 12) (original motion to dismiss).

In support of the motion, Defendants argued Plaintiffs had not filed a motion for substitution within

ninety days of the notice of William Shepherd’s death, so Federal Rule of Civil Procedure 25

required dismissal of the claims against him. (D.E. 14, p. 2). The amended motion included a

certificate of conference stating Plaintiffs opposed the motion. /d. at 3. However, Plaintiffs did not

timely respond to the motion. Accordingly, under Local Rule 7.4, the Court treated the dismissal

motion as unopposed. (D.E. 15, p. 2). Even so, the Court determined “the dismissal motion [could

not] be granted at this time because the Court [could not] conclude, on this record, that Rule 25’s

90-day period ha[d] elapsed, or that it ha[d] even begun to run.” /d. at 3. Thus, the Court ordered

Defendants’ counsel to serve the notice of death on William Shepherd’s successor (if not already

done), file proof of such service (if already served), and file an advisory if counsel were unable to

comply with the order by January 17, 2025. See id. at 4.

On January 16, 2025, Gwenyth Shepherd filed an advisory naming herself as Mr.

Shepherd’s successor and stating, “[i]nsofar as the filing party can be served with her own filing,

Mrs. Shepherd was served with the Notice of Death when her attorney filed the Notice.” (D.E. 18,

p. 1). The next day, Plaintiffs filed a motion to reopen the substitution deadline and substitute

Gwenyth Shepherd as the appropriate representative for William Shepherd. (D.E. 20).

A flurry of briefing followed on the substitution issue. See, e.g., (D.E. 21; D.E. 25;

D.E. 27). The Court referred this case for all pretrial purposes to Magistrate Judge Mitchel

Neurock, (D.E. 30), who issued an M&R, (D.E. 33).

3 The Court struck Defendants’ original motion to dismiss because it did not include a certificate of

conference as required by the Local Rules. (D.E. 13, p. 1).

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II. Law

A. Standard of Review

When a party objects to the findings and recommendations of a magistrate judge, the

district judge “shall make a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). As

to any portion for which no objection is filed, a district court reviews for clearly erroneous factual

findings and conclusions of law. United States v. Wilson, 864 F.2d 1219, 1221 (Sth Cir. 1989) (per

curiam). “A judge of the court may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

B. Excusable Neglect

“When an act may or must be done within a specified time, the court may, for good cause,

extend the time . . . on motion made after the time has expired if the party failed to act because of

excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). The court has discretion under Rule 6(b) to extend

the time for filing a motion to substitute under Rule 25. Hill v. First Tenn. Bank, N.A., No. 3:17-

CV-1298-L, 2018 WL 2317714, at *2 (N.D. Tex. May 22, 2018) (Lindsay, J.) (collecting cases).

The moving party bears the burden to demonstrate “excusable neglect.” Tex. Hous. Agency v.

Verex Assurance, Inc., 176 F.R.D. 534, 536 (N.D. Tex. 1998) (Means, J.) (citation omitted), aff'd

sub nom. Tex. Dep't Hous. & Cmty. Affairs v. Verex Assurances, Inc., 158 F.3d 585 (Sth Cir. 1998).

The Court weighs the Pioneer factors to determine whether a party’s failure to act

constituted excusable neglect: “the danger of prejudice to the [opposing party], the length of the

delay and its potential impact on judicial proceedings, the reason for the delay, including whether

it was within the reasonable control of the movant, and whether the movant acted in good faith.”

U.S. Bank Tr. Nat’l Ass’n ex rel. Tiki Series IV Tr. v. Walden, 124 F.4th 314, 321 (Sth Cir. 2024)

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(alteration in original) (quoting United States v. Clark, 51 F.3d 42, 44 (Sth Cir. 1995)). “Although

inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute

excusable neglect, it is clear that excusable neglect under Rule 6(b) is a somewhat ‘elastic concept’

and is not limited strictly to omissions caused by circumstances beyond the control of the movant.”

Pioneer Iny. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 392 (1993) (citation

modified) (footnote omitted).

The Fifth Circuit “has left open the possibility that some misinterpretations of the federal

rules may qualify as excusable neglect” but has “emphasized that such is the rare case indeed.”

L.A. Pub. Ins. Adjusters, Inc. v. Nelson, 17 F.4th 521, 525 (Sth Cir. 2021) (citation modified)

(citations omitted). The Fifth Circuit has “therefore held that a district court abused its discretion

by granting an extension of time based on an attorney’s misreading of a time-limit set by the

Federal Rules even when the district court had found that the intricacies of the Rule at issue were

‘a trap for the unwary.’” Jd. at 525-26 (quoting Midwest Emps. Cas. Co. v. Williams, 161 F.3d

877, 880 (Sth Cir. 1998)).

Hil. Analysis

In their objections, response, and reply, the parties do not address—and, thus, do not object

to—the following portions of the M&R’s analysis: (1) Federal Rule of Civil Procedure 25 was

triggered; (2) Defendants’ notice of death was sufficient; (3) all parties were served as required by

Rule 25; (4) no non-parties were required to be served; (5) Rule 25(a)(1)’s ninety-day clock began

to run on May 7, 2024; and (6) Plaintiffs did not file their notice of substitution before Rule 25’s

ninety-day deadline. See (D.E. 36; D.E. 37; D.E. 40). Reviewing these unobjected portions of the

M&kR for clear error, the Court finds none and, accordingly, ADOPTS these findings of the M&R.

(D.E. 33, p. 5—9).

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The objections, response, and reply all concern the final portion of the M&R: whether

Plaintiffs’ failure to seek substitution resulted from excusable neglect. See (D.E. 36; D.E. 37;

D.E. 40). Here, again, the parties agree on a basic premise—the Pioneer factors control. See

(D.E. 36, p. 6-7; D.E. 37, p. 4-5) (arguing whether the Pioneer factors support a finding of

excusable neglect). The issue raised for the Court’s de novo review is whether, applying the

Pioneer factors, Plaintiffs’ failure to seek substitution resulted from excusable neglect. The Court

analyzes each of the Pioneer factors in turn.

A. Danger of Prejudice to Opposing Party

The M&R finds the first Pioneer factor, danger of prejudice to the opposing party, weighs

in favor of a finding of excusable neglect. (D.E. 33, p. 14). This factor considers the future danger

of prejudice a party may suffer, not preexisting prejudice. See In re Eagle Bus Mfg., Inc., 62 F.3d

730, 737 (5th Cir. 1995) (“Under Pioneer, the central inquiry is whether the [party] will be

prejudiced.”) (emphasis added). The M&R identifies Defendant’s only argument on this point is

that requiring her to step in as representative for her late husband after losing him nearly a year

ago will “reopen the grieving process,” so Defendant “should receive closure by having the claims

against her late husband dismissed.” /d. (quoting D.E. 21, p. 4-5). The M&R empathizes with

Defendant’s loss, but disagrees “that the ‘closure’ [Defendant] seeks must take the form of

dismissal of the claim.” /d. Rather, the M&R reasons because the parties have continued to litigate

this case by participating in hearings, exchanging discovery, and discussing expert designation the

first factor weighs against a finding of prejudice. /d.

Defendant objects that the M&R “incorrectly concludes the first factor, prejudice to the

opposing party, favors the Plaintiffs.” (D.E. 36, p. 6). Defendant raises two arguments on this front.

First, Defendant argues the “blizzard of motions, responses, documents, and affidavits spanning a

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two-month period” were prejudicial to Defendant. /d. (quoting D.E. 33, p. 15). This argument

misses the mark. It raises prejudice that Defendant already suffered, not a danger of prejudice.

Under this factor, the Court’s assessment is premised on the prejudice a party will suffer if the

deadline to respond is extended. Bales Env’t Servs. LLC vy. Charter Comme ‘ns LLC, No. 24-2126,

2025 WL 842937, at *2 (E.D. La. Mar. 17, 2025) (Africk, J.); Fed. R. Civ. P. 6(b)(1)(B).

Second, Defendant argues the deadline for joinder of parties has passed, and the statute of

limitations has expired.’ (D.E. 36, p. 6). Defendant did not raise these arguments when discussing

the first Pioneer factor in her response to Plaintiff's motion for extension. See (D.E. 21, p. 4-5)

(arguing prejudice only on the grounds that allowing substitution would “reopen the grieving

process”). Indeed, the M&R preemptively established the novelty of these arguments, noting that

Defendant “has not raised these points [prior to the M&R], and it is not the job of the Court to

‘create arguments for adjudication’ or ‘raise [them] like a Phoenix from the ashes.’” (D.E. 33,

p. 14 n.8) (citations omitted). Therefore, the Court will not consider these issues as they are not

properly before the Court. See Place v. Thomas, No. 02-40923, 2003 WL 342287, at *1 (Sth Cir.

2003) (per curiam) (““Generally, an issue raised for the first time in an objection to a magistrate

judge’s report is not properly before the district court[.]”); United States v. Armstrong, 951 F.2d

626, 630 (Sth Cir. 1992) (declining to address issues argued for the first time in objections to

magistrate judge’s findings, conclusions and recommendations because they “were not properly

before the district court”).

The Court does not find Defendant’s arguments persuasive. Defendant does not articulate

how the closure she seeks is achieved by the dismissal of Plaintiff's claim against William

Shepherd. Further, the parties have continued to litigate Plaintiff's claim since William’s death.

Defendant raised the passage of deadlines only in the context of the second Pioneer factor, not the first.

Ore p. 6). As a result, the Court considers the passage of deadlines only as to the second factor.

See (D.E. 16; D.E. 17; D.E. 21-1). This includes exchanging discovery materials (D.E. 21-1),

participating in hearings, and discussing the designation of experts (D.E. 16; D.E. 17). Despite the

absence of a timely substitution motion, this case has proceeded. On de novo review, the Court

OVERRULES Defendant’s objections and finds the first Pioneer factor favors a finding of

excusable neglect. The Court ADOPTS the M&R’s finding of excusable neglect as to the first

Pioneer factor.

B. Length of Delay and Potential Impact on Judicial Proceedings

The M&R finds the second Pioneer factor, length of delay and potential impact on judicial

proceedings, weighs against a finding of excusable neglect. (D.E. 33, p. 14-15). The M&R notes

the length of the delay—165 days after the expiration of the ninety-day period in which to seek

substitution—and reasons that Plaintiffs’ failure to seek substitution has required the Court and

the parties to expend significant resources in determining whether dismissal is appropriate. /d.

at 14-15 (collecting docket entries related to briefing on the substitution issue). Defendant does

not object to the M&R’s analysis of the second Pioneer factor. (D.E. 36, p. 6). Nor do Plaintiffs.

(D.E. 37, p. 4). After reviewing this unobjected reasoning on the second Pioneer factor for clear

error and finding none, the Court ADOPTS the M&R’s finding that the second Pioneer factor

weighs against a finding of excusable neglect.

C. Reason for Delay

The M&R finds the third Pioneer factor, the reason for delay, weighs against a finding of

excusable neglect. (D.E. 33, p. 15). The M&R concludes that “although it is possible that “some

misinterpretations of the federal rules may qualify as excusable neglect,’ ... . [t]his is not one of

those rare cases.” Jd. (quoting Halicki v. La. Casino Cruises, Inc., 151 F.3d 465, 470 (Sth Cir.

1998)). That is because, the M&R explains, Plaintiffs have not proffered any satisfactory reason

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for their delay and notes the long delay was within Plaintiffs’ control. Jd. at 15—16.

Although neither party objects to the M&R’s finding that the third Pioneer factor weighs

against a finding of excusable neglect, (D.E. 36, p. 6; D.E. 37, p. 4), Defendant objects that the

M&R “fails to give sufficient weight to the third factor.” (D.E. 36, p. 6). According to Defendant,

“It]his factor, the reason for the delay, has been recognized as the most important Pioneer factor.”

Id. (first citing Tubens v. Doe, 976 F.3d 101, 106 (1st Cir. 2020); and then citing Perez v. El

Tequila, LLC, 847 F.3d 1247, 1253 (10th Cir. 2017)). The Fifth Circuit, however, has declined to

“extend [its] precedent . . . to hold that any other Pioneer factor is more important than the others.”

Inre CJ Holding Co., 27 F.4th 1105, 1114 (5th Cir. 2022). The Court refuses, therefore, to follow

Defendant’s out-of-circuit cases to the contrary. Accordingly, the Court OVWERRULES

Defendant’s objection and will weigh the third Pioneer factor equally, as required by the Fifth

Circuit and as the M&R did. The Court ADOPTS the M&R’s unobjected finding that the third

Pioneer factor weighs against a finding of excusable neglect.

D. Whether the Movant Acted in Good Faith

As the M&R recognizes, “[t]he fourth Pioneer factor is the most difficult one in this

case[.]” (D.E. 33, p. 16). The M&R’s reasoning proceeds in three steps. First, Plaintiffs “provide

next to nothing to indicate that they have acted in good faith” (and, indeed, their conduct “does not

suggest good faith”); however, Defendant “offers no actual evidence of bad faith on the part of

Plaintiffs.” Jd. at 17. Second, the fault for failing to seek substitution lies with Plaintiffs’ counsel

rather than Plaintiffs themselves, so the M&R expresses reluctance “to visit a dismissal upon

innocent clients for the unpardonable conduct of the lawyer.” Jd. at 17 (quoting Ten v. Svenska

Orient Linen, 87 F.R.D. 551, 553 (S.D.N.Y. 1980) (Owen, J.)). Third, the M&R reasons that the

history of Rule 25(a) and Rule 6(b) shows that the ninety-day deadline to seek substitution was

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“not intended to act as a bar to otherwise meritorious actions, and extensions of the period may be

liberally granted.” /d. (internal quotation marks omitted) (quoting Cont’] Bank, N.A. v. Meyer,

10 F.3d 1293, 1297 (7th Cir. 1993)). The M&R explains this as motivated in part by court’s

“preference for resolving cases on the merits rather than on ‘Game Over, Man!’ procedural spring

traps.” Jd. (citation modified). Ultimately, as the M&R is “unwilling to conclude that Plaintiffs’

lateness is tainted by bad faith,” the M&R finds the fourth Pioneer factor weighs in favor of a

finding of excusable neglect. Jd.

Defendant first objects that “[t]here is no evidence of good faith and excusable neglect.”

(D.E. 36, p. 5). She contends Plaintiffs “filed no evidence with their motions,” so all the Court has

before it are pleadings stating some unelaborated misunderstanding about the relevant procedural

rules. /d. Specifically, Defendant raises two issues. First, Defendant argues pleadings are not

evidence. Second, even if they were evidence, Defendant argues these pleadings do not elaborate

on Plaintiffs’ misunderstanding to sufficiently show their failure to seek substitution was in good

faith. /d. (citations omitted).

In a related, second, objection, Defendant argues the M&R applies the wrong burden of

proof when it reasons that Defendant “offers no actual evidence of bad faith on the part of

[P]laintiffs.” Jd. at 5—6 (quoting D.E. 33, p. 17). Defendant argues Pioneer requires Plaintiffs to

prove good faith, so the M&R’s reasoning that Defendant did not prove bad faith “appears to be a

shifting of the burden of proving good faith by the Plaintiffs to imposing a burden of proving bad

faith on the Defendant.” /d. at 6.

In response to the first objection, Plaintiffs submitted additional evidence in an attempt to

show good faith, (D.E. 37, p. 3; D.E. 37-1), and contend “Defendant mischaracterizes the burden

of proof’ because Rule 6 does not require Plaintiffs to prove excusable neglect “with sworn

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affidavits at the motion stage.” (D.E. 37, p. 3). Plaintiffs offer a timeline to explain their delay:

e As of November 18, 2024: Staffer previously responsible for organizing and assisting

in management of this case file was replaced

e December 16, 2024: Defendant’s discovery responses made Plaintiffs aware of

William Shepherd’s passing

e January 7, 2025: Plaintiffs’ counsel sought clarification from Defendant’s counsel

regarding the appropriate heir to be substituted®

e January 17, 2025: Plaintiffs filed their motion for extension and substitution

See id. at 2.

Plaintiffs seemingly offer this timeline and the associated email, sent ten days before filing

their motion to extend, (D.E. 20), to demonstrate they were making efforts to determine who was

the proper party to substitute for Defendant William Shepherd, see (D.E. 37-1). On the second

objection, Plaintiffs contend that “Defendant misconstrues the Magistrate’s findings. The court

correctly applied Pioneer and did not shift the burden of proof.” (D.E. 37, p. 4).

In response, Defendant argues Plaintiffs’ statement that they did not become aware of

William Shepherd’s passing until December 16, 2024 is incorrect. (D.E. 40, p. 1). Citing the

parties’ joint discovery/case management plan filed on May 13, 2024, Defendant notes this joint

filing recognized Mr. Shepherd’s passing. /d. (citing D.E. 6).

After reviewing Defendant’s first two objections as to good faith, the Court OVERRULES

both. (D.E. 36, p. 5-6). Though Defendant faults the M&R for reasoning the good faith factor

supported a finding of excusable neglect based on the absence of bad faith, sister courts throughout

this circuit have reasoned similarly. See, e.g., Crown Castle Fiber LLC y. City of Pasadena, 618 F.

Supp. 3d 567, 579 (S.D. Tex. 2022) (Hittner, J.), aff'd sub nom. Crown Castle Fiber, L.L.C. v. City

of Pasadena, Tex., 76 F.4th 425 (Sth Cir. 2023). Courts presume a movant’s good faith in the

absence of evidence demonstrating misconduct. /d. at 578. Defendant has not provided evidence

5 Vanes submitted a copy of this email as an exhibit to their response. (D.E. 37-1).

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of Plaintiffs’ misconduct to demonstrate bad faith. (D.E. 33, p. 17). The Court finds Plaintiffs acted

in good faith, in the absence of evidence to the contrary.

Finally, Defendant objects that granting Defendant’s motion to dismiss is not a procedural

trap. (D.E. 36, p. 7). The M&R’s reasoning on the good faith factor partially relied on “courts’

preference for resolving cases on the merits . . . rather than on “Game Over, Man!’ procedural

spring traps.” (D.E. 33, p. 17) (citations omitted). Defendant objects to this characterization of the

issue, contending ‘Plaintiffs have not succumbed to some obscure procedural trap[.]” (D.E. 36, p.

7). This objection lacks citation to legal authority and instead reargues Plaintiffs’ repeated missteps

in failing to timely move for substitution. See id. at 7-8. Semantics aside, the Court agrees with

the M&R’s reasoning: the Court prefers to resolve cases on the merits, whereas granting

Defendant’s motion to dismiss because Plaintiffs failed to meet a deadline would resolve the case

on a procedural point without reaching the merits of Plaintiffs’ negligence claim. The Court

OVERRULES the objection. (D.E. 36, p. 6). After a de novo review of the objections, the Court

ADOPTS the M&R’s finding that the fourth Pioneer factor, whether the movant acted in good

faith, supports a finding of excusable neglect.

E. Excusable Neglect

The Court finds the first and fourth Pioneer factors favor a finding of excusable neglect;

the remaining two do not. The Court’s determination of excusable neglect is “at bottom an

equitable one, taking account of all relevant circumstances surrounding the party’s omission.”

Pioneer, 507 U.S. at 395.

On de novo review, the Court departs from the M&R’s reasoning as to the faultlessness of

Plaintiffs when compared to their counsel’s “unpardonable conduct.” See (D.E. 33, p. 17) (quoting

Svenska Orient Linen, 87 F.R.D. at 553). In departing from this reasoning, the Court finds

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particularly instructive the Fifth Circuit and Supreme Court’s guidance that clients are held

accountable for the acts and omissions of their counsel. Ne/son, 17 F.4th at 525 (rejecting the

argument that a party should not be penalized for its former attorneys’ mistake); Pioneer, 507 U.S.

at 397 (“This principle applies with equal force here and requires that respondents be held

accountable for the acts and omissions of their chosen counsel.”).

Plaintiffs fail to demonstrate their failure for missing the deadline was excusable neglect.

They assert their delay resulted from a former staff member’s oversight “coupled with counsel’s

unfamiliarity with the procedural requirements for Rule 25 substitution[.]” (D.E. 37, p. 3). They

also argue Defendant’s reliance on Nelson is misplaced because “Plaintiffs’ delay resulted from

clerical error and procedural uncertainty rather than deliberate noncompliance.” Jd. But Nelson

involved a party’s mistaken belief no answer was required, not a party’s deliberate noncompliance

with the Federal Rules of Civil Procedure. 17 F.4th at 526. Even so, the Fifth Circuit held the

district court abused its discretion by permitting an extension of time under Rule 6(b). See id.

at 527. Here, Plaintiffs’ clerical error is akin to the mistaken belief present in Ne/son. The Court

does not find Plaintiffs’ explanation for their failure to comply with Rule 6(b)’s requirements

persuasive and respectfully disagrees with the M&R’s conclusion that Plaintiffs’ failure resulted

from excusable neglect.

Compounding Plaintiffs’ failure to show excusable neglect 1s their representation regarding

when they had notice of William’s death. In their response to Defendants’ objections, Plaintiffs

state that “It was not until Defendant’s discovery responses dated December 16, 2024, that

Plaintiffs became aware of Defendant William Shepherd’s passing.” (D.E. 37, p. 2). The joint

discovery/case management plan, filed on May 13, 2024, flatly contradicts this representation.

(D.E. 6). In the plan, which Plaintiffs’ counsel signed, the parties stated that “a representative of

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the estate of William Shepherd will have to appear because Mr. Shepherd is deceased.” Jd. at 1. In

the context of the equitable determination of excusable neglect, the Court will not countenance

such gamesmanship. See Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 244-45

(1933) (explaining that party seeking equitable relief must come to the court with clean hands).

On balance, and looking at the conduct of Plaintiffs’ counsel to determine whether

counsel’s neglect is excusable, the Court concludes it is not.

IV. Conclusion

After carefully reviewing the M&R, objections, record, and relevant precedent, the Court

ADOPTS in part and REJECTS in part the M&R. (D.E. 33). Specifically, the Court agrees

Plaintiffs missed their deadline to move for substitution and agrees on the direction of each Pioneer

factor taken individually. However, the Court disagrees on the conclusion of excusable neglect.

Accordingly, the Court GRANTS Defendant’s amended motion to dismiss, (D.E. 14), and

DENIES Plaintiff's motion to extend or reopen the deadline for substitution of parties, (D.E. 20).

The Court DISMISSES without prejudice Plaintiffs negligence claim against William

Shepherd. (D.E. 1-3, p. 2-3). A final judgment will issue separately.

SO ORDERED. | ; | |

DA MORALES

UNITED STATES DISTRICT JUDGE

Signed: Corpus Christi, Texas

October 4° 2025

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