Woodson v. City of Richmond, Virginia et al, No. 3:2013cv00134 - Document 524 (E.D. Va. 2014)

Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 12/31/14. (tdai, )

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Woodson v. City of Richmond, Virginia et al Doc. 524 I IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA DEC 3 I 2014 Richmond Division CLERK, U.S. DISTRICT COtJRT RICHMOND. VA STEFAN WOODSON, Plaintiff, Civil Action No. v. 3:13cvl34 CITY OF RICHMOND, VIRGINIA, et al., Defendants. MEMORANDUM OPINION This matter CUSHIONBERRY'S is MOTION before TO the DISMISS court (Docket on DEFENDANT No. 284). ROBERT For the reasons set forth below, the motion will be denied. BACKGROUND Woodson filed a Complaint against the City of Richmond and several other defendants, alleging several violations of his constitutional rights under the Eighth Amendment1 and 42 U.S.C. §19832. 1 Docket No. 1. "Excessive bail Later, with leave of Court, Woodson filed shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." 2 "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, Dockets.Justia.com a Fourth Amended Complaint, Docket No. 187. the Amendment, Eighth Constitutional adding Cushionberry as a defendant. Woodson again asserted claims under §1983 and alleging rights Richmond City Jail while and Woodson July 21, 2014, had imprisoned in his the employed as a medical filed his Answer to the Docket No. 230. Seventeen days later, on August 2, 2014, Cushionberry died. who was violated Id. Cushionberry Fourth Amended Complaint. lawyers Cushionberry Cushionberry was technician at the same facility. On that represented Docket No. 418 at 1. Cushionberry while he was The alive filed a Suggestion of Death Upon the Record under Fed. R. Civ. P. 17, 25(a)(1) 2014, on August 11, 2014. Docket No. 242. On November the same lawyers filed the instant Motion to Dismiss, arguing that Woodson had failed to comply with procedural rules allowing for substitution of parties and thus that Cushionberry was entitled to a complete dismissal of the claims against him. Docket No. 284. DISCUSSION Fed. R. Civ. P. 25(a)(1) states: "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 shall be liable to the party injured in an action at law, in equity, or other proper proceeding for redress..." suit service of a statement noting the death, action by or against the decedent the must be dismissed." (emphasis added). 3 The parties disagree as to, among other things, whether a deceased party's lawyer is permitted to file a statement noting that party's that his death under Rule lawyers were 25(a)(1). permitted to Cushionberry argues file such a statement and thus that the statement commenced the running of the now-expired 90-day time period, and that dismissal is therefore required. Woodson, argues however, that Rule 25(a)(1) limits the individuals who can file a statement noting a death of a party to other parties deceased party. would not Woodson is death was clock, and, and the representatives According to Woodson, qualify as correct, a statement successors of the Cushionberry's attorneys "representative" the or that under the Rule. If noted Cushionberry's invalid and therefore it did not start the 90-day accordingly, Woodson's pending Motion to Substitute 3 Rule 25(a)(1) allows that a motion for substitution is to be filed within 90 days of the service of the statement noticing a party's death. In this case, the Suggestion of Death was filed on August 11, 2014. Thus, the 90 day period expired on November 9, 2014. Cushionberry notes that November 9 was a Sunday and the following Tuesday was a federal holiday. Thus, pursuant to both Rule 6(a)(1)(C) Motion to Substitute 2014." Docket that date. No. and Rule Parties 285 at 2. 6(d), the deadline "was...extended No motion to file to November had been filed as a 13, of Parties (Docket No. 402) is timely which would necessitate denial of Cushionberry7s Motion to Dismiss. Woodson is correct. Under Rule 25(a)(1), a deceased party's lawyers are not permitted to file a statement noting the party's death because the lawyers do not qualify as either a party or a representative or successor of the deceased party. The text of Rule 25(a)(1) does not limit who may file a statement noting the death of a party. However, decisions that have interpreted Federal notes Rules all limited of the Civil teach that to rule, representative." Procedure, those parties suggested and Moreover, who and may "the courts form the file language Advisory such decedent's have a in the Committee statement are successor determined that or a decedent's lawyer is not a "representative" as contemplated by Rule 25(a) (1) . Decisional law both within the Fourth Circuit and around the country have held both that the identity of those who can file the notice is limited, and also that the decedent's lawyer does not fall into either category of those who are empowered to file a notice of death. Circuit is Farris v. The informing case law in the Fourth Lynchburg Foundry, 769 F.2d 958 (4th Cir. 1985), in which the Court of Appeals spoke about the role that a deceased party's attorney should play under Rule 25(a)(1). In Fariss, the plaintiff in an age discrimination case died during the pendency of administratrix appointment, the his of action and estate. his Id. wife at was 961. appointed After the the defendant filed a notice of death and served a copy on the deceased plaintiff s lawyer but not on the deceased plaintiff's wife, who was his legal successor. Id. The question before the Court of Appeals was whether service on the lawyer alone, start the and not on the plaintiff's wife, was sufficient to 90-day time clock under Rule 25(a)(1). The Court of Appeals also considered whether a lawyer in a case could act for the client after the client's death. the ceases with the continue or (citing death of terminate Restatement an his In so doing, "[t]he attorney's Fourth Circuit noted that Id. at 962. agency to act client...and he action (Second) on of his Agency own has no power to initiative." §120(1) Id. (1958)). The Court of Appeals went on to say that "[b]ecause the attorney is neither a party, nor a legal successor or representative of the estate, he has no authority to move for substitution under Rule 25(a) (1) ." Io\ Although the Fariss deceased party's statement noting that a deceased representative precedent, a of lawyer death case does not explicitly hold that a does under party's not Rule lawyer the estate." deceased party's have 25(a)(1), is not Id. the "a Thus, lawyer power it legal under does does not to file a establish successor Fourth or Circuit qualify as a "decedent's successor or representative" for the purposes of filing either a notice of death or a motion for substitution of the parties under Rule 25(a)(1). Thus, any notice of death filed by a decedent's lawyer is of no effect under Rule 25(a)(1) and does not trigger the 90-day time period established by Rule 25(a)(1). The other decision federal in Fariss courts that is in have line with considered example, in Fehrenbacher v. Quackenbush, Kan. 1991), the decisions the 759 F. issue. Supp. of For 1516 (D. the district court held that a suggestion of death filed by a decedent's lawyer was invalid because the lawyer "for the deceased party may not make the suggestion of death since he is not himself a party to the action and, terminated on the death, deceased party' 1518 (quoting ^representative of the of the sort contemplated by the rule." Id. at 7C C. Wright Practice and Procedure, Similarly, F.R.D. in he is not a since his authority Civil, International 63 (W.D.N.Y. & A. 1997), Miller §1955, & M. at 545 Cablevision, Inc. Kane, Federal (2d ed. 1986)). v. Sykes, 172 the district court held that a letter sent by the decedent's lawyer to the court and opposing counsel was an invalid notice of death under Rule 25(a)(1) because "the letter in question came from the deceased defendant's attorney [and was thus]... ineffective under case precedent." Id. at 66. (citing Al-Jundi v. Estate of Rockefeller, 757 F. Supp. 206, 210 (W.D.N.Y. 1990); (S.D.N.Y. 1993)). Medical Group of Smith v. Planas, Finally, in 151 Kessler v. North Carolina, P.A., F.R.D. 547, Southeast 165 F.R.D. 54 549-50 Permanente (E.D.N.C. 1995), the district court held that "the personal representative of a decedent's estate or another party to the action must make the suggestion of death upon the attorney or other non-party does at record not and a decedent's have that authority." Id. 56. That view is also supported by the leading treatises on the topic. The Wright & Miller treatise on Federal Practice and Procedure states that "[i]t has been held that the attorney for the deceased party may not make the statement noting death since the attorney is not a party to the action and, since the attorney's authority to represent the deceased terminated on the death, the attorney is not a representative of the sort contemplated in the rule." M. Kane & Procedures, Practice R. Marcus & Civil §1955 states that A. "[t]he of 7C C. Wright & A. Miller & Steinman, (3d ed.). the decedent Federal In addition, courts read Practices and Moore's Federal [Rule 25(a)(1)] as allowing service of the statement noting the death by any of the same persons who may move for substitution." 6 J. Moore, Federal Practice, informs that §25.13[2][a] "several behalf of the courts (3d have decedent has ed. 2014). ruled no that Moore's an authority further attorney to file acting a on statement noting the death of a party, served statement does not so that. start the . . such an attorney- 90-day time period. The sound reasoning behind these decisions is that the attorney is not a party to the action, and his or her authority to represent the decedent terminates on death." Id. The Federal Rules of Civil Procedure provide sample forms that that "suffice under [the] rules." Fed. R. Civ. P. 84. Form 9 illustrates the language that the drafters anticipated in conjunction with a statement noting a party's 25(a)(1). death under Rule It reads: Statement Noting a Party's Death: In accordance with Rule 25(a) name the person, who is [a party to this action][a representative of or a successor to the deceased party] notes the death during the pendency of this action as party in this action.] original) . When of read name, in [describe (emphasis in conjunction 25(a)(1), Form 9 illustrates that the drafters intended a notice of death to be filed by either "a party to with Rule [the] action" or "a representative of or successor to the deceased party", and not by any individual who wished to file such a notice. The Advisory Committee Notes to the 1963 Amendment of Rule 25(a)(1) confirm that the drafters of the rule intended to limit those who were entitled to file a statement noting a death of a party. In Advisory amendment to Rule 25, Committee Notes accompanying the committee states that "[a] 8 the 1963 motion to substitute may be made by any party or by the representative of the deceased party without awaiting the suggestion of death. Indeed, the motion will usually be so made. If a party or the representative of the deceased party desires to limit the time within may make the motion, he may do so by which another suggesting the death upon the record." 1963 amendment changed Rule 25(a)(1) for the motion to substitute (emphasis added). The to establish a "time limit based . . . upon the time information of the death is provided by means of a suggestion of death upon the record." The rule as it stood in 1963 is substantially the same as it is today with respect with Rule 25(a)(1) and the notice of death. together with the text of Rule This language, 25(a)(1) and when read Form 9, again illustrates that the drafters had intended to allow only parties and the "successors or representatives" of the deceased to file a statement noting a death. In support of his motion to dismiss, Cushionberry relies principally on Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467 (2d Cir. 1988). In Unicorn Tales, the Second Circuit held that a notice of death filed by a dead defendant's wife was sufficient to start the 90-day clock under Rule 25(a)(1). Id. at 469-70. In so holding, the court stated that "the text of Rule 25(a)(1) contains no...restriction [noticing death]. Moreover, on who may file the statement such a restriction is inconsistent with the purpose form...There is in amending the rule simply nothing in the rule to its present or the advisory committee notes to suggest that Congress intended Rule 25(a)(1) to be so inflexible." Ig\ Cushionberry cites this language as evidence that Rule 25(a)(1) does not prevent a deceased party's lawyers from filing a notice of death on the client's behalf. At least one case has followed Cushionberry's reasoning. Jones Inlet Marina, 2001) Inc. (citing Unicorn v. Inqlima, Tales 204 F.R.D. and holding that 238 See (E.D.N.Y. a statement of death "does not need to be filed by the formal or appointed representative of the estate"). For the reasons outlined Tales is not persuasive. above, the rationale Unicorn In any event, Unicorn Tales "does not conflict with" the decisions on which Woodson relies. §25.14 [2] [b]. of Moore at "Although the language in [Unicorn Tales] seems to indicate that a statement noting the death of a party could be served by anyone...[the case] did not explicitly overrule any of the district court decisions in the Second Circuit holding that a statement noting the death . . . may not be served by an attorney acting on behalf of the deceased party." "the court in [Unicorn Tales] Id. Further, was not faced with the situation in which an attorney had served a statement noting the death without authority...[but] merely held that the decedent's wife, although not formally a representative 10 of her husband, could [serve] a statement nothing the death of her husband." Id. Thus, while Unicorn Tales appears to speak to whether a lawyer is authorized to file a notice of death under Rule 25(a)(1), in reality, it has little to say on the issue. CONCLUSION For the reasons set forth above, DEFENDANT ROBERT CUSHIONBERY'S MOTION TO DISMISS (Docket No. 284) will be denied.4 It is so ORDERED. /s/ Hit Robert E. Payne Senior United States District Judge Richmond, Virginia Date: December 3[ , 2014 As the Motion to Dismiss has been resolved on the merits, Woodson's MOTION TO STRIKE MOTION TO DISMISS (Docket No. 411) and MOTION TO STRIKE REBUTTAL BRIEF AS UNTIMELY (Docket No 419) are hereby denied as moot. 11

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