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Case 2:12-cv-00299-MEF-WC Document 34 Filed 06/04/13 Page 1 of 6










CASE NO. 2:12-cv-299-MEF
(WO – Do not publish)


Before the Court is Plaintiff’s Motion to Substitute Estate (Doc. #20), Plaintiff’s

Supplement to its Previously Filed Motion to Substitute Estate (Doc. #27), and Plaintiff’s

Second Supplement to its Previously Filed Motion to Substitute and Motion to Extend

Deadlines (Doc. #29), in which Plaintiff moves to extend the time for filing a proper motion

to substitute a party plaintiff, to modify the dispositive motion briefing schedule, and to

extend the discovery deadlines in this matter. Defendants have filed responses in opposition

to Plaintiff’s motions (Docs. #28, 30), in which they request that the Court dismiss this case

because Plaintiff’s counsel failed to timely request substitution of a proper party plaintiff

pursuant to Federal Rule of Civil Procedure 25 after Plaintiff’s death was formally suggested

on the record. (Doc. #13.)

Case 2:12-cv-00299-MEF-WC Document 34 Filed 06/04/13 Page 2 of 6


On April 3, 2012, Plaintiff Eloise Knox (“Plaintiff”) filed this action against

Defendants pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346. Plaintiff’s

Complaint asserts claims of negligence, wantonness, failure to warn, and failure to hire,

train, and properly supervise for injuries she sustained when she slipped and fell while

shopping at the Maxwell Air Force Base Commissary in Montgomery, Alabama. On

September 12, 2012, Plaintiff passed away. Defendants state that they learned of Plaintiff’s

death on November 1, 2012, while taking the deposition of Plaintiff’s daughter, Martha

Knox (“Ms. Knox”). Plaintiff’s former counsel, Joseph Morris (“Mr. Morris”), appeared at

Ms. Knox’s deposition but failed to inform Defendants at that time that Plaintiff had passed

away. Defendants later asked Mr. Morris to identify the proper party plaintiff in this case,

but Mr. Morris failed to do so. (Def.’s Resp., at 1 n.1, Doc. #28.) On January 18, 2013,

Defendants filed a suggestion of Plaintiff’s death on the record (Doc. #13) pursuant to

Federal Rule of Civil Procedure Rule 25(a)(1).

On April 17, 2013, Mr. Morris filed the pending Motion to Substitute Estate (Doc.

#20) on behalf of Ms. Knox.1 In this motion, Mr. Morris represented that Ms. Knox was the

successor and/or representative of Plaintiff’s estate and that a petition for letters testamentary

for Plaintiff’s estate, requesting that Ms. Knox be appointed as the personal representative

1 Although Mr. Morris represented in the body of the pleading that the motion for
substitution was being made by Ms. Knox, the pleading was signed by Mr. Morris as “Attorney for
Plaintiff.” (Doc. #20, at 2.)


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of Plaintiff’s estate, had been filed with the Probate Court of Montgomery County that same

day. Mr. Morris further stated that he knew of no reason why the petition to appoint Ms.

Knox as personal representative would not be granted. On April 19, 2013, Ms. Knox was

issued Letters of Administration of Plaintiff’s estate, which Mr. Morris filed on April 26,

2013, as a supplement to his Motion to Substitute Estate. (Doc. #27-2.)


Rule 25(a)(1) 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). Although the plain language of this rule requires a court to dismiss

a case if a motion for substitution is not made by a party to the action or the decedent’s

successor or representative2 within ninety days after the party’s death is suggested on the

record, courts have treated dismissal of an action for failure to meet Rule 25(a)’s procedural

requirements as discretionary. See Escareno v. Carl Nolte Sohne GmbH & Co., 77 F.3d 407,

411 (11th Cir. 1996) (“Rule 25(a) permits the court to dismiss the case if a motion for

2 The Court recognizes that a decedent’s former counsel does not qualify as a “successor
or representative” under Rule 25 because an attorney has no authority to act on behalf of a deceased
client. Cheramie v. Orgeron, 434 F.2d 721, 725 (5th Cir. 1970) (stating that the death of a client
terminates the attorney–client relationship) (citing Restatement (Second) of Agency, § 120 (1958)).
However, in the Motion to Substitute Estate, Mr. Morris represented that he was filing the motion
on behalf of Plaintiff’s daughter, Ms. Knox, despite the fact that he signed the motion as “Attorney
for Plaintiff.” (Doc. #20, at ¶ 3.)


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substitution is not made within 90 days after death is suggested upon the record.”) (emphasis

added); Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir. 1993) (“The history

of Rule 25(a) . . . makes clear that the 90 day time period was not intended to act as a bar to

otherwise meritorious actions, and extensions of the period may be liberally granted.”); see

also Hall v. Infirmary Health Sys., No. 06-0791-WS-B, 2008 WL 1774164, at *2 (S.D. Ala.

Apr. 15, 2008) (granting extension of ninety-day time period where, among other reasons,

plaintiff’s counsel represented that he was prepared to substitute a proper plaintiff and

defendants would not incur undue prejudice if period was extended). Accordingly, the Court

begins with the premise that Rule 25(a) is not intended to be used to “‘bar . . . otherwise

meritorious actions.’” Schmidt v. Merrill Lunch Trust Co., No. 5:07-cv-832-OC-10GRJ,

2008 WL 2694891, at *2 (M.D. Fla. June 30, 2008) (quoting Staggers v. Otto Gerdau Co.,

359 F.2d 292, 296 (2d Cir. 1966)). A court may, for good cause, extend the time for filing

a proper motion to substitute even after the ninety-day deadline has expired. Such an

extension may be made upon a motion, and the party seeking the extension must demonstrate

that it failed to act because of excusable neglect. Fed. R. Civ. P. 6(b)(1)(B); see Zeidman

v. Gen. Accident Ins. Co., 122 F.R.D. 160, 161 (S.D.N.Y. 1988) (“Rule [6(b)(1)(B)] works

in conjunction with Rule 25(a)(1) to provide the intended flexibility in enlarging the time for


It is undisputed that neither a party nor a representative or successor of Plaintiff filed

a motion for substitution within the requisite ninety days. Although Mr. Morris filed a


Case 2:12-cv-00299-MEF-WC Document 34 Filed 06/04/13 Page 5 of 6

motion for substitution on behalf of Ms. Knox within the ninety-day period, Ms. Knox had

not yet been appointed the legal representative of Plaintiff’s estate when the motion was

filed, and thus, the original motion for substitution was deficient. See Roberson v. Wood,

500 F. Supp. 854, 859 (S.D. Ill. 1980) (denying motions for substitution where no other legal

relationship other than kinship existed and noting, “Rule 25(a) clearly contemplates

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

Nevertheless, the Court finds that the facts and procedural history of this case do not

justify summarily dismissing this action. In filing a timely, albeit deficient, motion for

substitution before the ninety-day time period expired, Plaintiff’s former counsel put

Defendants on notice that Ms. Knox was the intended representative of Plaintiff’s estate and

that she intended to pursue the lawsuit in Plaintiff’s place. Moreover, Ms. Knox was made

the legal representative of Plaintiff’s estate just one day after the ninety-day deadline

expired, and Mr. Morris provided notice and proof of this fact to the Court and Defendants

the following week. (Pl.’s Supplement to the Motion to Substitute, Doc. #27.)

There is no denying that Mr. Morris’s delay in seeking to have Ms. Knox appointed

the representative of her mother’s estate has inconvenienced the Court and Defendants.

Nevertheless, given the quick succession of Mr. Morris’s filing of the motion for substitution

and the appointment of Ms. Knox as the estate representative, the Court finds that dismissal

of this entire action based upon a failure to strictly comply with Rule 25(a)’s procedural

requirements is an unduly harsh sanction. Bearing in mind that the underlying purpose of


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Rule 25(a)(1) is to allow flexibility in substitution, Zeidman, 122 F.R.D. at 161, the Court

will, in its discretion, allow Ms. Knox, the legal representative of Plaintiff’s estate, to be

substituted as the proper party plaintiff in this action.

For the foregoing reasons, it is hereby ORDERED that the Motion to Substitute Estate

(Doc. #20) is GRANTED. The Clerk of Court is DIRECTED to amend the style and record

in this matter accordingly.

It is further ORDERED that Plaintiff’s Motion to Extend Deadlines (Doc. #29) is


DONE this the 4th day of June, 2013.

/s/ Mark E. Fuller