Stachewicz

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

NANCY STACHEWICZ,

Plaintiff,

v. Case No. 1:23-cv-01258-JEH-RLH

CERTEGY PAYMENT

SOLUTIONS, LLC,

Defendant.

ORDER & OPINION

Nancy Stachewicz filed this putative class action under the Fair Credit

Reporting Act in July 2023. Just shy of two years after filing, Nancy passed away.

Her husband, John Stachewicz, now moves the Court to substitute him as the named

plaintiff under Federal Rule of Civil Procedure 25.1 Broadly stated, Rule 25 allows a

non-party to assume the role of a party who has died, so long as (1) the deceased

party’s claims survive and (2) the proposed substitute is the “proper party” to take

over the case. Fed. R. Civ. P. 25(a)(1).

Defendant Certegy Payment Solutions, LLC (“Certegy”) opposes the

substitution. It argues that John’s motion is procedurally defective, that Nancy’s

claims have been (partially) extinguished, and that John is not the right person to

take Nancy’s place. “Proving that few things are as simple as they seem,” the issues

raised by Certegy’s opposition are “like threads unraveling a complicated and

1 The Court refers to Nancy Stachewicz as “Nancy” and John Stachewicz as “John.”

interwoven web of still other factual and legal issues.” Cole v. City of Chicago, No.

1:06-cv-4704, 2009 WL 10737897, at *1 (N.D. Ill. Jan. 20, 2009).

For the reasons explained below, the Court rejects Certegy’s procedural

arguments, as well as its argument that Nancy’s claims did not survive her death.

That leaves only the question whether John is the right person to assume Nancy’s

role. Certegy argues that he lacks the competence to serve as a party in federal court

and that he cannot represent Nancy’s estate or a class. Were it to entertain these

arguments, however, the Court would transform a simple procedural device into a

contest over the merits of class certification and the logistics of trial. Because that

contest is not appropriately fought on a Rule 25 motion, the substitution will be

allowed.

BACKGROUND

The rather complex and technical facts giving rise to this case are unnecessary

to fully recount here. The Court instead outlines the basics. Certegy is a financial

technology company that sells products and services to retailers around the country.2

Among them is what Certegy calls its “check verification” service: When someone uses

a check to buy goods from a retailer subscribed to the service, the retailer receives

from Certegy a “near instantaneous recommendation”—based on the purchaser’s

financial history—whether the retailer should accept the check. (Doc. 40 at 8.)

The thrust of the Amended Complaint is that Certegy’s procedures to ensure

the accuracy of those recommendations are insufficient under the Fair Credit

2 About Certegy, CERTEGY, https://certegy.com/about-us/about-certegy, (last visited Oct. 1, 2025).

Reporting Act (the “FCRA”). It alleges that Nancy attempted to make purchases via

personal check at Big Lots, Kroger, and Dollar General—each of whom subscribe to

Certegy’s check verification service. (Doc. 16 at 3–4.) When Nancy presented her

checks to those retailers, Certegy sent them a message about Nancy’s credit that

stated: “Negative Consumer or Check Data on File.” (Doc. 16 at 6.) Relying on that

message, the retailers refused to accept Nancy’s checks. (Doc. 16 at 3–6.) The

Amended Complaint alleges that this message was sent erroneously and that Nancy

in fact had ample funds in her account to make the purchases. (Doc. 16 at 7.)

Discovery in this case commenced in late 2023. (See Doc. 19-1 at 2; Text Order

Dated Nov. 15, 2023.) During the discovery process, Certegy twice sought to depose

John but was met with objections from Nancy’s counsel both times. Nancy’s counsel

claimed that John lacked personal knowledge of Nancy’s claims and that he suffered

from various mental ailments, including a poor memory. According to Nancy’s

counsel, the burden of taking John’s deposition therefore outweighed any benefits.

(See Doc. 71 at 2.) This discovery dispute never came before the Court, however, and

Certegy never took John’s deposition.

After the close of discovery, Nancy moved to certify a nationwide class of people

who were “inaccurately portrayed” by Certegy as “higher risk check writer[s].” (Doc.

37 at 20.) Certegy opposed certification, (Doc. 39), and on the same day moved for

summary judgment, (Doc. 40). Both motions remain pending. On April 25, 2025,

Nancy’s counsel informed the Court that Nancy had passed away. (Doc. 64 at 1.) A

short time later, the parties requested—and this Court imposed—a forty-five-day

stay. (Doc 64; Text Order dated Apr. 28, 2025.) When it was lifted, John moved the

Court to substitute him as the plaintiff. (Doc. 66 at 1.)

LEGAL STANDARD

Federal Rule of Civil Procedure 25(a) “governs the substitution of a party who

has died.” Atkins v. City of Chicago, 547 F.3d 869, 870 (7th Cir. 2008). Relevant here,

the Rule provides that “[i]f a party dies and the claim is not extinguished, the court

may order substitution of the proper party.” Fed. R. Civ. P. 25(a)(1). The Rule

elaborates that a motion to substitute “may be made by any party or by the decedent’s

successor or representative” within ninety days after “service of a statement noting

the death.” Id. That motion, “together with a notice of hearing, must be served” in

accordance with Rules 4 and 5. Fed. R. Civ. P. 25(a)(3).

DISCUSSION

John’s motion—along with Certegy’s opposition—presents four issues, two of

which are procedural, and two of which are substantive. As to procedure: Certegy

challenges the service and timing of John’s motion. The Court finds that the motion

was timely, that John and Certegy were the only parties entitled to notice of it, and

that John’s failure to obtain a hearing date is no reason to deny it. As to substance:

Certegy argues that Nancy’s FCRA claims were partially extinguished by her death.

The Court concludes that John cannot seek punitive damages, but that Nancy’s

underlying FCRA claims survive. Finally, Certegy argues that John is not a proper

substitute. But Certegy’s arguments place more weight on Rule 25’s “proper party”

requirement than the Rule’s text can bear. The Court will thus allow the substitution.

I. Service of John’s Motion

The service of motions to substitute is governed by Rule 25(a)(3), which

provides that “[a] motion to substitute, along with a notice of hearing, must be served

on parties as provided in Rule 5, and on non-parties as provided in Rule 4.” Fed. R.

Civ. P. 25(a)(3). The Rule therefore identifies who must be served (parties and

non-parties) and what they must be served with (the motion to substitute and a notice

of hearing). Certegy does not dispute whether parties were served.3 Instead, it argues

that John failed to (1) serve non-parties, and (2) serve anyone—parties and non-

parties alike—with a notice of hearing. But no court applies Rule 25’s service

provisions as rigidly as Certegy would have it.

First, the Court finds that Rule 25(a)(3) did not require John to serve any other

non-parties. Although the Rule itself “does not specify any criteria for determining

which nonparties must be served,” Atkins, 547 F.3d at 871, the Seventh Circuit has

explained that the only non-parties entitled to service are those “with a significant

financial interest in the case,” id. at 873. Here, John submitted an affidavit in support

of his motion, explaining that he is both the executor and primary beneficiary of

Nancy’s estate. (Doc. 68 at 1.) Unquestionably, that role gives him a significant

financial interest in the case. Certegy’s argument, however, is more remote: It

contends that Nancy may have other, secondary beneficiaries who are entitled to, but

did not receive, notice of the motion and an opportunity to respond. But, as explained

3 Nor could it: John’s motion was filed electronically and thus automatically served on all existing

parties. (See Doc. 66 at 6.)

below, the failure to serve hypothetical and unidentified beneficiaries does not

warrant denying John’s motion.

Second, because the Court finds that John and Certegy were the only persons

entitled to service, John’s failure to serve either himself or Certegy with a notice of

hearing is not fatal to his motion. The purpose of serving the proposed substitute

(John) is to ensure that the Court may exercise personal jurisdiction over that

individual. By volunteering to assume Nancy’s role in this case, however, John has

consented to this Court’s jurisdiction. Nor can Certegy claim prejudice from the lack

of service. Although Rule 25 requires parties to serve a notice of hearing, it does not

confer an absolute right to one. To the contrary, the Civil Local Rules vest the Court—

not the litigants—with discretion to determine whether and when to hold a hearing.

A. Service on Non-Parties

Certegy first argues that third parties who may have a financial interest in the

case—i.e., beneficiaries of Nancy’s estate—are entitled to notice of John’s motion.

Because John did not serve them, the argument goes, it did not comply with Rule 25.

But Certegy has not identified which non-parties—if any—are entitled to service.

Given the statements in John’s affidavit that he is the “executor” and “primary

beneficiary” of Nancy’s estate, (Doc. 68 at 1), it appears that he is the only non-party

entitled to notice.

Again, the only non-parties entitled to notice of a substitution are those with a

“significant financial interest” in the case. Atkins, 547 F.3d at 873. When a natural

person dies and names beneficiaries in their will, the question whether those

beneficiaries have an interest in the case turns entirely on whether their interests in

the decedent’s estate have materialized—that is, whether the estate has been

distributed. Atkins thus identifies two sets of non-parties entitled to service: (1) the

executor or administrator, if the estate has not been distributed; and (2) successors

or beneficiaries, if the estate has been distributed. Id. John’s affidavit puts this case

in the first category because Nancy’s will has not yet been submitted to probate, and

because John is her sole executor. (Doc. 68 at 1.) Under Atkins, John has the “biggest

stake in the continuation of the case” and is therefore the person with whom Rule

25’s service provisions are most concerned. Atkins, 547 F.3d at 873. Accordingly, John

is the only person with a significant financial interest in the case and thus the only

non-party entitled to notice.4

To avoid this result, Certegy cites two cases—decided by courts in this

district—that departed from Atkins’s bright-line formula. But those courts confronted

the rare scenario in which a plaintiff brought suit in a representative capacity rather

than on their own behalf. See Abellan v. HRDS Le Roy IL, LLC, No. 1:16-cv-1037,

2020 WL 10355049, at *1 (C.D. Ill. June 19, 2020); Carr v. Target Corp., No. 3:18-cv-

3002, 2019 WL 952563, at *1 (C.D. Ill. Feb. 27, 2019). Indeed, Abellan and Carr were

brought by trustees as representatives of a trust. When the trustees died, their

4 John is also the “primary” beneficiary of Nancy’s estate, (Doc. 68 at 1), which Certegy interprets to

mean that Nancy’s estate names other beneficiaries, some of whom may have a financial interest in

the case. (Doc. 71 at 11.) But because Nancy’s estate has not yet been administered, the relative

interests of prospective beneficiaries are irrelevant. See Atkins, 547 F.3d at 873. Semantics aside,

courts do not distinguish between a decedent’s sole and primary beneficiary in determining who is a

proper substitute. See, e.g., Hardy v. Kaszycki & Sons Contractors, Inc., 842 F. Supp. 713, 716

(S.D.N.Y. 1993) (explaining that the decedent’s representative was a proper substitute under Rule 25

because she was “at least [the] primary” beneficiary of the estate). Thus, no other person has a superior

claim to succeed Nancy in this case.

successor trustees moved to substitute themselves as parties. In doing so, however,

the successors failed to notify the trust beneficiaries, who “still ha[d] an ongoing

financial interest in the case” and were therefore entitled to notice. Abellan, 2020 WL

10355049, at *3.

Abellan and Carr are inapposite. Those suits were maintained on behalf of a

trust, whose beneficiaries had a vested interest in the relief sought. In contrast,

Nancy did not file this case in a representative capacity.5 Unlike trust beneficiaries,

the secondary beneficiaries of Nancy’s will—assuming they exist—had no interest in

this case before Nancy’s passing, let alone a “significant” one. Atkins, 547 F.3d at 873.

Absent a preexisting and thus “ongoing” financial interest in the case, these

hypothetical beneficiaries need not be served with John’s motion. Abellan, 2020 WL

10355049, at *3.

At its core, Certegy’s argument speculates that there might be beneficiaries of

Nancy’s estate who might have a sufficient financial interest to warrant service under

Rule 25(a)(3), and that John’s motion does not affirmatively disprove the existence of

those people. That is not enough, particularly in the face of John’s affidavit that he is

the executor of Nancy’s estate. (Doc. 68 at 1.) As the executor of Nancy’s estate, John

is the only non-party entitled to notice under Atkins. The Court therefore declines

Certegy’s invitation to “deny the motion on this ground alone.” (Doc. 71 at 11.)

5 Certegy’s opposition focuses heavily on the fact that this is a putative class action. The Court

emphasizes that these putative class members do not yet have a financial interest in the case and are

therefore not entitled to notice of John’s motion. As of now, this case remains between a single plaintiff

and a single defendant. See Odell v. CVS Pharmacy, Inc., No. 1:22-cv-3318, 2023 WL 8527440, at *4

(N.D. Ill. Dec. 9, 2023) (“Unnamed putative class members are not parties to the action prior to class

certification.” (emphasis omitted)).

B. Notice of Hearing

Along with the motion itself, Rule 25 requires service of “a notice of hearing.”

Fed. R. Civ. P. 25(a)(3). This language is the focus of Certegy’s next challenge to

John’s motion. Certegy argues that John “has not obtained a hearing date from the

Court, meaning he could not have served the beneficiaries with a notice of hearing as

required by the Rule.” (Doc. 71 at 11.) But the only beneficiary entitled to service, as

discussed, is John. And by filing his motion without securing a hearing date, John

has effectively waived his right to one. Nor can Certegy object that it was deprived of

a hearing under Rule 25—the Rule does not give Certegy that right.

1. John’s Waiver of Service

At the outset, Certegy does not object to the fact that it was not served with a

notice of hearing. (See generally Doc. 71.) Instead, Certegy invokes the rights of non-

parties, arguing that they were not served with a notice of hearing. In all likelihood,

Certegy does not have standing to assert their rights. Regardless, those beneficiaries

lack a tangible financial interest in the case, see supra Section I.A, so they are not

entitled to notice of a hearing. Because John is the only beneficiary entitled to notice,

what remains of Certegy’s argument—if anything—is that John failed to serve

himself with his motion and a notice of hearing. But he can waive service of those

things (on his own behalf, anyway), and the Court finds he did just that.

Consider why a Rule 25 motion would be served on a proposed substitute.

Fundamentally, it ensures that courts can exercise personal jurisdiction over them.

See Ransom v. Brennan, 437 F.2d 513, 517 (5th Cir. 1971). That is especially

important when, for example, an attorney moves to substitute a person into a case

without informing that person or securing their consent. See, e.g., Atkins, 547 F.3d at

871; MWG Enters., LLC v. ETS Wound Care, LLC, No. 4:19-cv-424, 2021 WL

5758440, at *1 (E.D. Mo. Dec. 3, 2021). But a court’s jurisdiction over a proposed

substitute is not in doubt when the proposed substitute files the motion themselves.

By asking to join the case, the proposed substitute voluntarily assumes the decedent’s

role and consents to jurisdiction. See MWG Enters., 2021 WL 5758440, at *1–2; cf.

Capriotti’s Sandwich Shop, Inc. v. Taylor Fam. Holdings, Inc., 857 F. Supp. 2d 489,

501 (D. Del. 2012) (holding that parties consented to the jurisdiction of federal court

in Delaware by filing suit in Delaware court). And by consenting to jurisdiction, a

proposed substitute waives their right to service of the motion and an opportunity to

object to it. See MWG Enters., 2021 WL 5758440, at *1–2.

This principle is reflected in cases interpreting Rule 25. For example, courts

find that they lack personal jurisdiction over a proposed substitute who has not been

served with the Rule 25 motion or a notice of hearing.6 By contrast, courts allow

substitution where the proposed substitute—despite not having filed the motion

themselves—consented to jurisdiction, whether expressly7 or by conduct.8

Here, the proposed substitute—John—filed the substitution motion himself

and volunteered to assume Nancy’s role in the case. (See Doc. 66.) By doing so, John

6 See MWG Enters., 2021 WL 5758440, at *1–3 (E.D. Mo. Dec. 3, 2021) (noting that successor did not

waive service); see also Biglari v. Bd. of Regents ex rel. Univ. of Neb. Lincoln, No. 4:22-cv-3268, 2024

WL 3722871, at *1–2 (D. Neb. Aug. 5, 2024) (explaining that successor had actual notice of lawsuit).

7 See United States v. Limetree Bay Terminals, LLC, No. 1:21-cv-264, 2023 WL 172757, at *2 (D.V.I.

Jan. 12, 2023) (stating successor had signed a stipulation to cooperate in substitution process).

8 See Hirsch v. Bruchhausen, 284 F.2d 783, 786 (2nd Cir. 1960) (reasoning that successor had

“continuously participated in the proceedings”); see also United States v. Harold, 423 F. Supp. 3d 410,

420–21 (E.D. Mich. 2019) (noting successor had notice of potential for litigation far in advance and

“had ample notice and opportunity to present its case”), aff’d, 847 F. App’x 296 (6th Cir. 2021).

implicitly consented to this court’s personal jurisdiction: He had actual notice of the

motion and conveyed a willingness to be bound by this Court’s judgment. See cases

cited supra notes 6–7. And just as a plaintiff is not required to serve themselves with

a summons and a copy of their own complaint, see Fed. R. Civ. P. 4(a)(1)(B), John

need not resubmit to this Court’s jurisdiction by serving his motion or a notice of

hearing on himself. Requiring him to do so would be “an essentially useless

formality.” Hirsch, 284 F.3d at 786. Accordingly, John was not required to serve

himself with the motion or a notice of hearing.

2. John’s Failure to Set a Hearing

To reiterate, Certegy objects that John “has not obtained a hearing date from

the Court, meaning he could not have served the beneficiaries with a notice of hearing

as required by the Rule.” (Doc. 71 at 11.) But, as explained, John was the only

beneficiary of Nancy’s estate entitled to notice of the substitution. And by filing the

motion, he waived service of it on himself—to the extent Rule 25 required it. The

Court thus interprets this objection to mean that Certegy was deprived of a hearing

on John’s motion. Even on this reading, however, the Court disagrees.

For its part, Certegy is correct to say that Rule 25 requires motions to be served

with a “notice of hearing.” Fed. R. Civ. P. 25(a)(3). The Rule thus implies that a

hearing on Rule 25 motions must take place, though no courts in the Seventh Circuit

appear to have answered the question. Although precedent on this issue is lacking, it

is beyond dispute that courts may adopt rules “for submitting and determining

motions on briefs, without oral hearings,” Fed. R. Civ. P. 78(b), so long as they are

consistent with the Federal Rules of Civil Procedure, Fed. R. Civ. P. 81(a)(1). This

District has adopted just such a rule. Civil Local Rule 7(A)(1) provides:

Any motion . . . may, in the Court’s discretion, be . . . scheduled for oral

argument, either at a specified time or on a Motion Day as suggested in

Rule 78 of the Federal Rules of Civil Procedure; . . . or determined upon

the pleadings and the motion papers without benefit of oral argument.

Civil LR 7.1(A)(1)(a), (d) (emphasis added). In practice, Local Rule 7.1(A)(1) and

others of its kind “make[] irrelevant and meaningless the notice of hearing required

by” Rule 6(c)(1)9—and, by extension, Rule 25(a)(3). Rose Barge Line, Inc. v. Hicks, 421

F.2d 163, 164 (8th Cir. 1970); see also Morrow v. Topping, 437 F.2d 1155, 1156 (9th

Cir. 1971) (holding that failure to set hearing on motion to dismiss did not violate

Rule 6(c)(1) and was “in full accordance with established procedure”); Ameriway Corp.

v. Chen, No. 1:19-cv-9407, 2024 WL 1526175, at *2 n.3 (S.D.N.Y. Apr. 9, 2024) (noting

that similar local rule’s “more specific provisions control the matter” of notice of

hearing). In other words, a party who files a Rule 25 motion need only provide

interested parties with “actual notice of the motion and full opportunity to respond.”

Rose Barge Line, 421 F.2d at 164.

Nor is Local Rule 7.1(A)(1) inconsistent with Rule 25(a)(3)’s notice-of-hearing

requirement. That is because it “is based upon the specific authority of Federal Rule

78, and is complementary to and not repugnant to the Federal Rules of Civil

Procedure.” Rose Barge Line, 421 F.2d at 164; see also Proceedings of the Seminar on

9 Rule 6(c)(1) requires all written motions to be served with “notice of the hearing . . . at least 14 days

before the time specified for the hearing.” Fed. R. Civ. P. 6(c)(1). But because of court rules like Local

Rule 7.1(A)(1), parties rarely file motions with a notice of hearing. (See, e.g., Doc. 54 (motion for leave

to file reply under Civil LR 7.1(B)(3) served without notice of hearing).)

Procedures for Effective Judicial Administration, 29 F.R.D. 191, 301–02 (1961)

(contemplating similar local rules as being consistent with Rule 78(b)). Thus, Local

Rule 7.1(A)(1) does not dispose of the hearing requirements under Rules 6(c)(1) and

25(a)(3)—it merely shifts the power to set a hearing from the parties to the court.

Here, John substantially complied with Rule 25(a)(3) in light of Local Rule

7.1(A)(1). Although he did not request a hearing on his motion, he was not required

to, and Certegy had ample notice of and an opportunity to respond to it.10 And Certegy

capitalized on that opportunity by filing a lengthy opposition, (see Doc. 71), to which

John replied, (see Doc. 77). In light of the parties’ extensive briefing on this matter,

the Court sees no reason to set it for a hearing.

Thus, John’s failure to set this motion for and serve notice of a hearing (1) did

not prejudice Certegy in opposing the motion, and (2) does not prevent John from

serving as Nancy’s substitute.

II. Timing of John’s Motion

Certegy’s second challenge relates to the timeliness of John’s motion. A Rule

25 motion must be filed within ninety days “after service of a statement noting the

death.” Fed. R. Civ. P. 25(a)(1). The Seventh Circuit has explained that the ninety-

day clock begins when a statement of death is properly served “on whoever is

identified as the decedent’s representative or successor.” Atkins, 547 F.3d at 874; see

also Barlow v. Ground, 39 F.3d 231, 233–34 (9th Cir. 1994) (noting that improper

10 See also 12 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1955 (3d ed.

2025) (“[T]here is no constitutional right to present oral argument on a motion.”).

service of statement of death does not trigger the ninety-day limitations period under

Rule 25(a)(3)); Giles v. Campbell, 698 F.3d 153, 159 n.5 (3d Cir. 2012) (same).

Here, John’s counsel electronically filed a statement of Nancy’s death on April

25, 2025.11 (Doc. 63.) That gave John until July 24, 2025, to file his motion to

substitute. And since it was filed on July 16, 2025, it was timely. Certegy does not

seem to dispute this. Instead, it argues that “[a]ny amended motion to substitute that

attempts to cure the deficiencies discussed in this opposition would now be untimely.”

(Doc. 71 at 12.) In other words, John’s motion to substitute was timely, but if the

Court agrees with Certegy that the motion is defective in one way or another, any

attempt to refile it would fall outside Rule 25’s ninety-day window. That is true so far

as it goes. But the Court’s reasoning begins and ends with the fact that John’s motion

was timely filed—a fact which Certegy does not dispute. Thus, the Court will not deny

it on this ground, either.12

III. Whether Nancy’s Claims Are Extinguished

Procedure aside, the Court turns now to Certegy’s substantive arguments.

Certegy first argues that “Nancy’s claims are partially extinguished” because John

11 As Certegy correctly observes, the ninety-day clock would not have started running until the

statement of death—not the motion to substitute—was served on John. See Fed. R. Civ. P. 25(a)(1);

see also Atkins, 547 F.3d at 874. Since Nancy’s attorneys now represent John, and since and they were

served with the suggestion of death via CM/ECF, service on John’s counsel likely constituted service

on John himself. But even if the statement was served later, then the ninety-day clock would have

started later. See Cuoco v. Palisades Collection LLC, No. 2:13-cv-6592, 2014 WL 956229, at *7 (D.N.J.

Mar. 11, 2014) (“[E]ven if the original suggestion of death was defective, it simply means that the 90-

day period did not begin to run.”). In that case, John would have had more time to file the motion, not

less.

12 In any case, “[d]istrict courts have discretion to extend the Rule 25 ninety-day period for

substitution.” Lizarazo v. Miami-Dade Corr. & Rehab. Dep’t, 878 F.3d 1008, 1011 (11th Cir. 2017); see

also 7C Wright & Miller, supra, § 1955 (“The general provisions of Rule 6(b) now apply to motions to

substitute.”); Zanowick v. Baxter Healthcare Corp., 850 F.3d 1090, 1096 (9th Cir. 2017) (“Rule 25(a)(1)

permitted the district court to allow a late substitution if requested.”).

cannot seek punitive damages if substituted as a party. (Doc. 71 at 12.) John responds

that “the availability of a particular remedy is irrelevant to whether the claim itself

survives,” and the FCRA claims unquestionably do. (Doc. 77 at 4.) In a way, both

parties are correct.

When the “right of action is federally created, federal law controls on the

survival of the action.” 7C Wright & Miller, supra, § 1954. The relevant federal law

here, of course, is the FCRA. Yet the question whether FCRA claims are

“extinguished” after the plaintiff’s death is not one the Seventh Circuit has answered.

In fact, it appears that no court of appeals has. Despite this lack of mandatory

authority, district court opinions around the country are uniform. The consensus is

that “claims for statutory damages under the FCRA survive” a party’s death, but

“claims for punitive damages do not.” Hopper v. Credit Assocs., LLC, No. 2:20-cv-522,

2021 WL 5754732, at *3 (S.D. Ohio Dec. 3, 2021) (dismissing claims for punitive

damages but allowing substitution to proceed).13

The reason for this vast agreement is because it is settled that “remedial claims

survive” a party’s death but “actions for penalties do not.” FTC v. Day Pacer LLC, 689

F. Supp. 3d 609, 624 (N.D. Ill. 2023). Given that the “FCRA is a remedial statute

designed to protect consumers,” Chaitoff v. Experian Info. Sols., Inc., 79 F.4th 800,

13 See also, e.g., Biatiu v. Specialized Loan Servicing LLC, No. 1:19-cv-822, 2019 WL 5448702, at *2

(S.D.N.Y. Oct. 24, 2019) (“Plaintiff’s remaining claims under the FCRA—for actual damages—

survive.”); Irvin-Jones v. Equifax Info. Servs. LLC, No. 4:18-cv-3224, 2019 WL 4394684, at *3 (S.D.

Tex. Sept. 13, 2019) (allowing substitution but holding that the plaintiff’s “claims for punitive

damages” under the FCRA do not survive her death); Pena v. Experian Info. Sols., Inc., No. 8:22-cv-

1115 , 2023 WL 4680807, at *2 (C.D. Cal. June 8, 2023) (“[Plaintiff’s] FCRA cause of action survives

him. However, to the extent he seeks punitive damages under the statute, this aspect of the claim is

extinguished.”).

816 (7th Cir. 2023), and that punitive damages “serve to punish and deter,” Irvin-

Jones, 2019 WL 4394684, at *2, it follows that claims for statutory and actual

damages under the FCRA are “remedial” and survive, but claims for punitive

damages are penal and do not.

Accordingly, to the extent Nancy’s FCRA claims sought punitive damages, they

are extinguished; to the extent they seek actual and statutory damages, they survive.

IV. Whether John Is a Proper Substitute

The final question is whether John is the right person to continue the case. In

the mine-run of cases, the “proper party” to be substituted under Rule 25 is “the

personal representative of the party who has died.” Tucker v. Mitchell-Lawshea, No.

1:17-cv-5883, 2019 WL 1057384, at *2 (N.D. Ill. Mar. 6, 2019) (citing Atkins, 547 F.3d

at 872). That person may be either the “executor or administrator of the decedent’s

estate” or, if the estate has been distributed, the decedent’s heirs. Atkins, 547 F.3d at

872; see also In re Baycol Prods. Litig., 616 F.3d 778, 784–85 (8th Cir. 2010)

(explaining that a proper party under Rule 25 may be “(1) the primary beneficiary of

an already distributed estate” or “(2) named in a will as the executor of the decedent’s

estate, even if the will is not probated” (citations omitted)).

John meets those criteria. His affidavit asserts that he is “the executor and

primary beneficiary of Nancy’s estate” and that “[n]o proceeding is pending in Illinois

for the administration of Nancy’s estate.” (Doc. 68 at 2.) As the executor of Nancy’s

estate, John is therefore the proper party to take over this case, see Atkins, 547 F.3d

at 872, regardless whether Nancy’s will has been submitted to probate, see Baycol,

616 F.3d at 784.

Certegy resists this conclusion in five ways. It argues that: (1) John has not

shown that he is Nancy’s representative; (2) John cannot represent Nancy’s interests,

(3) John is incompetent to be a litigant in federal court; (4) John cannot represent a

class; and (5) regardless of (1) through (4), the Court should exercise its discretion to

deny John’s motion. (Doc. 71 at 13–19.) Certegy’s arguments are misplaced.

A. John’s Affidavit

First, Certegy argues that John’s affidavit does not prove that he is in fact the

executor of Nancy’s estate. In support, Certegy cites Butts v. Aurora Health Care,

Inc., 387 F.3d 921 (7th Cir. 2004), and Fortier v. Ameritech Mobile Communications,

Inc., 161 F.3d 1106 (7th Cir. 1998), for the proposition that John’s affidavit is “not

evidence of anything” because it is “self-serving.” (Doc. 71 at 14.) But the affidavits in

those cases were submitted at the summary judgment stage and in the face of

conflicting evidence. See Butts, 387, F.3d at 925; Fortier, 161 F.3d at 1114. What is

more, the authority cited by Certegy confirms that district courts may, in their

discretion, consider “self-serving statements in affidavits,” so long as they “are based

on personal knowledge and set forth specific facts.” Butts, 387 F.3d at 925 (citing Buie

v. Quad/Graphics, Inc., 366 F.3d 496, 504 (7th Cir. 2004)). In fact, district courts

abuse that discretion when they refuse to consider affidavits solely because they are

self-serving. See Buie, 366 F.3d at 506 (reversing a district court’s decision to ignore

a self-serving affidavit when it was based on the affiant’s personal knowledge).

Here, John’s affidavit is unquestionably based on his own knowledge—no other

person would be in a better position to speak to the terms of Nancy’s will than the

executor himself.14 Nor does Certegy provide evidence of its own that would cast

doubt on the credibility of John’s affidavit. The Court therefore concludes that John’s

affidavit shows that he is the executor of Nancy’s estate.

B. John’s Ability to Represent Nancy’s Interests

Second, Certegy argues that John is an improper substitute because he “cannot

adequately represent Nancy’s interests.” (Doc. 71 at 15.) John replies that Rule 25

requires no such inquiry. The Court agrees.

Certegy invites the Court to graft onto Rule 25 a requirement that does not

appear in the Rule’s text or the caselaw interpreting it. To this end, Certegy cites

dicta from an opinion of the D.C. Circuit: “It is axiomatic that Rule 25 limits properly

substituted parties to those individuals who can adequately represent the interests

of the deceased party.” (Doc. 71 at 15 (quoting Sinito v. U.S. Dep’t of Just., 176 F.3d

512, 516 (D.C. Cir. 1999)).) But a closer look at the court’s reasoning reveals that it

undermines, rather than supports, Certegy’s position. In Sinito, the D.C. Circuit held

for the first time that Freedom of Information Act (“FOIA”) claims survive a party’s

death. 176 F.3d at 516. The government argued that the court’s holding would allow

“any person” to step into the decedent’s shoes and thus saddle the judiciary with

14 Moreover, documentary evidence of John’s status as executor is not required—courts routinely

accept affidavits as proof of status. See Graham v. Henderson, 224 F.R.D. 59, 65 (N.D.N.Y. 2004)

(accepting affidavit “that there was in fact an estate for [decedent]; that [administrator] was Voluntary

Administrator of said estate; and, that she was also the primary distributee of the estate” as sufficient

proof); see also Hardy, 842 F. Supp. at 716 (“Although [proposed substitute] has not been formally

appointed as the representative of the [e]state, several courts interpreting Fed. R. Civ. P. 25(a) have

held that such formality is not required in certain situations.”).

never-ending FOIA lawsuits. Id. To allay the government’s concern, the court

explained that Rule 25 limits proper substitutes to a decedent’s “successors or

representatives.” Id. This limitation, the court said, ensures that only people who

share the decedent’s interests could take over a case. See id.

Certegy’s argument puts the cart before the horse. In its view, the principle

that a substitute must share the decedent’s interests limits which of the decedent’s

representatives may invoke Rule 25 (i.e., only those representatives who share the

decedent’s interests). Sinito did not fashion that atextual limitation. Instead, it

explained why Rule 25 allows only a decedent’s successors or representatives to

substitute into the case: to ensure that a substitute will be someone who is legally

required to act in the decedent’s best interest, as most legal representatives are. More

recently, the Eighth Circuit adopted this reading: “Because the purpose of Rule

25(a)(1) is to protect the estate of the decedent, district courts must ensure only ‘those

individuals who can adequately represent the interests of deceased party’ are

substituted under the Rule.” Baycol, 616 F.3d at 788 (8th Cir. 2010) (emphasis added)

(quoting Sinito, 176 F.3d at 516). And no one is better suited to protect the interests

of the decedent’s estate than its executor because, as the Seventh Circuit has

recognized, Illinois law imposes fiduciary duties on executors to carry out the terms

of the instrument that appointed them. See Hamilton v. Nielsen, 678 F.3d 709, 711

(7th Cir. 1982). Indeed, Sinito itself expresses a preference that substitutes be the

decedent’s executors. See Sinito, 176 F.3d at 516 (“[A] proper party need not

necessarily be the appointed executor . . . .” (emphasis added)).

Rule 25’s text reinforces this conclusion. By allowing only a decedent’s

“successors or representatives” to move for substitution, the Rule contemplates that

those people would be proper substitutes. Fed. R. Civ. P. 25(a)(1); see also Robertson

v. Wood, 500 F. Supp. 854, 859 (S.D. Ill. 1980) (“Rule 25(a) clearly contemplates

appointment of legal representatives, such as an executor or an administrator.”);

Hunter v. Kennedy, No. 3:17-cv-7, 2021 WL 2682043, at *3 (M.D. Pa. June 30, 2021)

(“Rule 25(a)’s use of the term ‘successor’ necessarily implies that there is some [part

of the] decedent’s estate or interest which remains and as to which the substituted

party has succeeded.”).15

In short, Rule 25 does not empower courts to conduct a freewheeling analysis

of the relative “interests” involved before allowing substitution. As Sinito and Baycol

clarify, limiting substitutes to a decedent’s “successors or representatives” adequately

ensures that the decedent’s interests are protected. Because the Court finds that John

is the executor of Nancy’s estate, see supra Section IV.A, his interests are aligned

with Nancy’s so far as Rule 25 is concerned.16

15 Some courts look to state law to determine whether the proposed substitute is the decedent’s

“personal representative” and therefore the proper party. See, e.g., Baycol, 616 F.3d at 788; Valle v.

Singer, No. 3:11-cv-700, 2011 WL 13186681, at *8 (M.D. Fla. Dec. 7, 2011) (denying substitution

motion in § 1983 action because proposed substitute failed to demonstrate that he was decedent’s

“personal representative” under Florida law); Graham v. Henderson, 224 F.R.D. 59, 64 (N.D.N.Y. 2004)

(same under New York law). That would not change the Court’s analysis, however, because Illinois

law defines “personal representative” as a person’s “executor, administrator, administrator to collect,

standby guardian, guardian and temporary guardian.” 755 ILCS 5/1-2.15. John would therefore

qualify as Nancy’s personal representative. (See Doc. 66-1 at 1 (stating under penalty of perjury that

John is the executor of Nancy’s estate).)

16 In a related argument, Certegy observes that John lacks personal knowledge of the claims. But Rule

25 does not require that the substitute have personal knowledge of the lawsuit. See Graham, 224

F.R.D. at 66 (rejecting argument that proposed substitute “has not been involved in the litigation thus

far and therefore should not be substituted”). This makes sense: A person’s legal representative will

almost never be the one who suffered the injury or brought the claim.

C. John’s Capacity & Competence

Third, Certegy argues that John is not a proper substitute because his physical

and mental ailments prevent him from litigating the case. Certegy’s arguments on

this score consist primarily of criticizing opposing counsel’s tactics rather than citing

relevant legal authority. Regardless, the Court disagrees.

Rule 25(a) does not speak to competence, nor does it suggest that courts must

conduct a threshold inquiry into a proposed substitute’s competence before allowing

substitution. That said, the practical effect of substitution is that “the proper party

steps into the shoes of the decedent.” Harco Nat’l Ins. Co. v. Ackerman, No. 2:20-cv-

1208, 2020 WL 6785934, at *1 (D. Nev. Nov. 17, 2020). And under Rule 17, all civil

litigants must possess both capacity and competence before maintaining a lawsuit in

federal court. See Fed. R. Civ. P. 17(b)–(c). It follows that a substitute—like any other

party—must be competent.

Because Certegy does not cite Rule 17, it is unclear whether Certegy opposes

John’s substitution under Rule 17(b) (capacity) or Rule 17(c) (competence). In any

event, both rules impose an exceedingly high evidentiary burden on those challenging

another’s ability to sue. Certegy’s evidence would fall short under either of them.

1. John’s Capacity Under Rule 17(b)

A person may not bring or defend an action in federal court unless they have

the capacity to do so. Fund Liquidation Holdings LLC v. Bank of Am. Corp., 991 F.3d

370, 382 (2d Cir. 2021). A person’s capacity, in turn, is determined by the law of their

domicile. Fed. R. Civ. P. 17(b)(1). John’s capacity to sue thus turns on Illinois law.

In Illinois, a person lacks capacity if he cannot “manage his person or estate”—

whether “because of mental deterioration or physical incapacity” or because of

“mental illness or developmental disability.” 755 ILCS 5/11a-2(a)–(b). Here, Certegy

alleges that John may possess “physical and mental infirmities” that would prevent

him from “consult[ing] with his lawyer with a reasonable degree of rational

understanding” and from “understand[ing] the nature of the proceedings.” (Doc. 71

at 17 (quoting United States v. 30.64 Acres of Land, 795 F.2d 796, 805 (9th Cir.

1986)).) But Illinois probate courts—not this one—have the power to adjudicate

someone’s capacity. See 755 ILCS 5/11a-7. Simply put, “there is no bar to suit against

even an insane person” absent (1) an adjudication of incompetence by an Illinois

probate court, and (2) the appointment of a guardian. Freiders v. Dayton, 378 N.E.2d

1191, 1198 (Ill. App. Ct. 1978); see also 755 ILCS 5/11a-3, -14, -18(c).

The lack of evidence that John has been declared incompetent by an Illinois

court thus ends the Rule 17(b)(1) inquiry. Accord Pass v. Emps. Ins. Co., No. 3:13-cv-

16, 2014 WL 5511082, at *2 (N.D. Miss. Oct. 31, 2014) (rejecting argument that

plaintiff was incompetent because there was no evidence that he had “been declared

legally incompetent in a court proceeding”). Without more, this Court cannot find that

John lacks capacity to maintain suit, so it will not deny his motion on that ground.

2. John’s Competence Under Rule 17(c)

Rule 17(c) also restricts who may be a party in federal court. If a party is

incompetent, the Rule requires that a guardian, conservator, or other representative

be appointed to sue on their behalf. Fed. R. Civ. P. 17(c)(1). Because Certegy has

raised competence arguments on John’s Rule 25(a) motion, a brief discussion of the

interplay between Rules 17(c) and 25 is in order.

To begin with, Rule 25 treats death and incompetence differently. Rule 25(b)

allows courts to appoint a representative for an incompetent party and is thus Rule

17(c)’s procedural analogue. Rule 25(a) has no such analogue. Put another way, Rule

17(c) deals with incompetent parties, so its application to Rule 25(a)—which concerns

only non-parties—is unclear, and precedent on the interplay between the two is

sparce. That said, at least one court has discussed the competence of a non-party

under Rule 25(a) before allowing that non-party’s substitution. See Todd v. A Team

Sec., Inc., No. 1:20-cv-1568, 2021 WL 11636881 (E.D.N.Y. Sept. 9, 2021). The Court

therefore indulges, but for the reasons below rejects, Certegy’s competence

arguments.17

In arguing that John is incompetent, Certegy implies that he bears the burden

of proof to demonstrate otherwise. (See Doc. 71 at 9–10.) The opposite is true: “[A]ll

persons are presumed to be competent’ and . . . the ‘burden of proof of incompetency

rests with the party asserting it.’” Scannavino v. Fla. Dep’t of Corr., 242 F.R.D. 662,

664 (M.D. Fla. 2007) (quoting Weeks v. Jones, 52 F.3d 1559, 1569 (11th Cir. 1995)).

17 Substitution under Rules 17(c) and 25(b) implicates the allegedly incompetent litigant’s due process

rights, whereas substitution under Rule 25(a) does not. The former procedure implicates “a protected

liberty interest in pursuing the suit as a principal” because (1) a declaration of incompetence impugns

the litigant’s reputation, and (2) appointment of a representative deprives him of his preexisting power

to control the lawsuit. Thomas v. Humfield, 916 F.2d 1032, 1033 (5th Cir. 1990) (quoting Wisconsin v.

Constantineau, 400 U.S. 433, 437 (1971)). The latter procedure differs because the proposed Rule 25(a)

substitute lacks legal, preexisting power to control the suit. See Paul v. Davis, 424 U.S. 693, 712 (1976)

(holding that injury to reputation alone does not implicate due process liberty interest). Accordingly,

while Rule 25(a) does not require the Court to consider John’s competence, the Court is not prohibited

from doing so—even without a hearing.

The party asserting incompetence must therefore demonstrate that “the litigant is

‘mentally competent to understand the nature and effect of the litigation.’” Id.

(quoting Bodnar v. Bodnar, 441 F.2d 1103, 1104 (5th Cir. 1971)).

Three examples illustrate this standard. In Bah v. Washington Metropolitan

Area Transit Authority, the court held that an allegation that a party was “seriously

ill, without more,” was “insufficient to establish” incompetence. No. 8:14-cv-2803,

2015 WL 6460082, at *2 (D. Md. Oct. 23, 2015). The Court explained that there was

“no evidence that Plaintiff has been declared legally incompetent in a court

proceeding,” nor “any medical evidence regarding his mental and physical capacities.”

Id. Similarly, in McBroom v. Potter, the court found no incompetence because there

was “scant medical information” that the plaintiff was suffering from physical and

emotional problems. No. 2:06-cv-767, 2007 WL 1424530, at *2 (M.D. Ala. May 14,

2007). Finally, in Todd v. A Team Security, Inc., the plaintiff died and his father

moved to substitute into the case under Rule 25. 2021 WL 11636881, at *1. Like

Certegy, the defendant objected on the ground that the father was incompetent, citing

three pages of the plaintiff’s deposition. Id. at *6. The court disagreed, explaining that

the “fleeting and vague reference” to the father failed to establish that he was

incompetent. Id. Accordingly, the court permitted the substitution. Id.

Certegy has not satisfied its burden to show that John is incompetent under

Rule 17(c). Certegy claims that “Nancy . . . and her counsel confirmed that John

cannot represent Nancy’s interests because he is too infirm.” (Doc. 71 at 16.) To

substantiate that claim, Certegy attaches two pages of Nancy’s deposition transcript

in which she indicated that, although John could understand and respond to

questions, he could not participate in a deposition because he lacked knowledge of the

case. (See Doc. 71-3 at 20–21.) Certegy also draws the Court’s attention to an email

exchange with John’s counsel, in which the parties dispute whether John has a

diagnosable medical disorder. (See Doc. 71-2 at 15–16.) This is well short of the

evidence demanded by the courts in Bah, McBroom, and Todd. Certegy does not

allege that John has been declared incompetent by a court. Nor does Nancy’s

deposition or the parties’ email exchange amount to “medical evidence” that would

persuade the Court that John cannot “understand the nature and effect of the

litigation.” Bodnar, 441 F.3d at 1104. Likewise, Certegy’s reliance on two pages of

Nancy’s deposition mirrors the insufficient evidentiary showing in Todd. 2021 WL

11636881, at *6 (“[T]he fleeting and vague reference to [the proposed substitute] is

the kind of remark that many families might make about an elder member without

meaning to imply mental incompetence.”). In short, Certegy relies on “scant medical

information” that is inadequate to demonstrate John’s incompetence. McBroom, 2007

WL 1424530, at *2.

Nonetheless, asking Certegy to produce evidence about John’s medical history

at this stage would be unreasonable, particularly where it has been unable to depose

him. (See Doc. 71 at 21 (“Certegy has never had the opportunity to explore John’s

competence.”).) As John himself concedes, Nancy’s death changed the trajectory of

this case. (See Doc. 77 at 7 (“Plaintiff does not oppose narrow discovery regarding

[John’s] adequacy as a class representative . . . .”).) When John becomes the plaintiff,

Certegy may request to depose him and conduct discovery into his competence. If

Certegy believes that it can meet its burden to demonstrate that John is

incompetent—or needs additional discovery to do so—it will be free to bring that to

the Court’s attention in ordinary course and on a proper motion.

D. John’s Ability to Represent a Class

Certegy also argues that John’s lack of personal knowledge of the case make

him an inadequate class representative under Rule 23(a)(4). John objects that

Certegy “seeks to turn this motion to substitute into an opportunity to reargue the

pending motion for class certification.” (Doc. 77 at 7.) The Court will not entertain

Certegy’s Rule 23 arguments at this stage. Cf. Robbins, 2023 WL 4205773, at *3

(refusing to consider adequacy of proposed Rule 25(b) substitute until the class-

certification stage). Of course, Certegy is correct that John’s substitution alters the

Rule 23 analysis. But John’s motion would be an improper vehicle to litigate that

issue. The parties will therefore be given the opportunity to present their arguments

at the appropriate time.

E. The Court’s Discretion

Finally, Certegy asks the Court to deny John’s motion because granting it

would be “fundamentally unfair.” (Doc. 71 at 21.) True, Rule 25 by its terms confers

discretion to grant or deny motions to substitute. See Fed. R. Civ. P. 25(a)(1) (“[T]he

court may order substitution of the proper party.” (emphasis added)). But denying

John’s motion would serve neither Rule 25’s purpose nor the Federal Rules of Civil

Procedure generally, which collectively aim to “secure the just, speedy, and

inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1.

As amended, Rule 25’s rather modest goal is “to dispel unwarranted rigidity

and allow more flexibility in substitution.” McSurely v. McClellan, 753 F.2d 88, 98

(D.C. Cir. 1985). It is therefore “difficult to imagine a case where discretion might

properly be exercised to deny a motion to substitute for a deceased plaintiff made

within the [R]ule’s time limits.” Saylor v. Bastedo, 623 F.2d 230, 237 (2d Cir. 1980).

Certegy says that this is one of those hard-to-imagine cases. (See Doc. 71 at 20–21.)

On its telling, John’s counsel has changed its tune about John’s role in the lawsuit

after Nancy’s death. It also argues that trial would be impractical because John lacks

personal knowledge of Nancy’s check transactions and of the case generally. (See Doc.

71-3 at 6.)

Certegy’s arguments are better suited for class certification, evidentiary

objections at or before trial, or perhaps a motion to compel. As already explained,

John’s motion was timely and properly served, and it satisfies Rule 25’s substantive

requirements. Certegy’s final request is therefore a plea to cast the Rule aside

because, in its view, applying it to this case would be unfair. The fairness concerns,

however, are equally great on the other side. The practical effect of denying John’s

motion would be to deprive him of the opportunity to pursue claims that the Court

has already determined—and that Certegy admits—survived Nancy’s death and

passed to her estate. The Court is aware of no legal principle that sanctions that

result.

CONCLUSION

IT IS THEREFORE ORDERED that John’s Motion to Substitute, (Doc. 66), is

granted. If the parties believe that John’s substitution calls for the reopening of

discovery or supplemental briefing on the motions already pending in this case, they

may bring those matters to the Court’s attention via the proper motion. See Fed. R.

Civ. P. 16(b)(4); Civil LR 6.1.

So ordered.

Entered this 24th day of October 2025.

s/ Ronald L. Hanna

Ronald L. Hanna

United States Magistrate Judge