Surviving Family Members Who Do Not Represent a Decedent Party’s Estate Need Not Be Served with A Suggestion of Death Under Fed. R. Civ. P. 25(a), Eleventh Circuit Holds

In Silas v. Sheriff of Broward Cnty., Fla., No. 21-13946 (11th Cir. Dec. 14, 2022), the Eleventh Circuit holds that a defendant’s survivors who do not formally represent the decedent’s estate are not “nonparties” for purposes of Fed. R. Civ. P. 25(a)(3), and thus suggestion of death need not be served on them to trigger the 90-day period for substituting a party.

Rule 25(a)(1) provides, on the death of a party, “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.” Per Rule 25(a)(3), “A motion to substitute, together with a notice of hearing, must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death must be served in the same manner.”

In this case alleging battery and false arrest against Officer Paul Yesbeck and the Sheriff of Broward County, Florida. The officer died. “On July 12, 2021, the Sheriff filed a suggestion of death and served Silas’s counsel.” Silas identified a surviving spouse and children of the officer, but the family never opened an estate for the decedent. Nor did the plaintiff ever take steps, as permitted under Alabama state law, to open an estate for the defendant officer to permit the action to continue. After 90 days had run with no motion to substitute filed, the district court per the terms of Rule 25 dismissed the officer from the case.

The Eleventh Circuit affirms. “The parties dispute whether Yesbeck’s surviving spouse and children qualify as nonparties who had to be served with a suggestion of death when no estate existed for Yesbeck . . . . Silas maintains that Yesbeck’s surviving family members were nonparties who had to be served with a sug[1]gestion of death. Because the Sheriff did not serve these nonparties, Silas contends that the district court lacked the authority to dismiss the action against Yesbeck.”

“Although Rule 25 does not define ‘nonparty,’ its context makes clear that the decedent’s surviving family members do not need to be served with a suggestion of death unless they represent the decedent’s estate. Rule 25 facilitates the substitution of a ‘proper party’ to take the place of the decedent. FED. R. CIV. P. 25(a)(1). By requiring service of a suggestion of death on nonparties, the Rule encourages the existing parties to promptly identify which—if any—nonparties have the legal authority to step into the decedent’s position in the case.”

Such legal authority is defined by state law. “But when the decedent lacks a legal successor or representative, Rule 25 does not require service on ‘nonparties’ who lack the legal authority to serve as a substitute party.”

Here, “Yesbeck’s surviving family members do not qualify as non-parties who must be served to begin the 90-day period for substitution under Rule 25. Silas acknowledges that Yesbeck’s family members were not representing the estate. No estate existed. Silas also offers no evidence that these family members had been identified as the pending representatives of the estate . . . . As a result, Yesbeck’s “survivors” were no more liable to Silas than any other stranger to the lawsuit. Because Yesbeck’s ‘survivors’ had no stake in the lawsuit and lacked the legal authority to file a motion to substitute, they did not have to be served before the substitution period could begin.”

If Silas needed more than 90 days to identify a person with authority to represent the decedent, under Fed. R. Civ. P. 6(b) “Silas could have sought more time to file her motion for substitution in the event the state court failed to appoint an administrator of the estate before the 90-day window expired . . . . But Silas never did so.” Finding the plaintiff’s failure to meet the deadline or seek an extension inexcusable, the panel affirms the dismissal of the sheriff.

Concurring, Judge Rosenbaum underscores that this case involved only a situation where no personal representative or successor existed. “[W]e hold that, when no successor or personal representative exists, a party complies with Rule 25(a)(1)’s requirement to serve the notice of death by serving the other parties, since no ‘nonparties,’ as Rule 25(a) defines the term, exist . . . . But Rule 25(a) and our reasoning necessarily mean that, when a successor or personal representative does exist—even if the serving party does not know of that successor or personal representative—the service on the other parties alone does not trigger the ninety-day clock.”

(In a companion published decision, the panel also held that the district court did not abuse its discretion under 28 U.S.C. § 1367(a) in dismissing the supplemental state law claims in the case and remanding them to state court.)

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