United States District Court, M.D. Georgia, Macon Division
J. ABRAMS, JUDGE UNITED STATES DISTRICT COURT.
the Court is Decedent-Plaintiff's purported next of kin
Vivian Spaulding's Motion for Substitution of Plaintiff
pursuant to Rule 25. Doc. 44; Fed.R.Civ.P. 25(a). In the
Motion, Spaulding represents that “Plaintiff Charles
Lee Broady Jr. died on November 15, 2017.” Doc. 44 at
1. She further represents that she “attempted to be
appointed as the Administrator of the Estate of Charles Lee
Broady, Jr. by the Probate Court of Glenn County . . . and
was told that without the death certificate she cannot yet
qualify” as the administrator. Id. at 2.
Defendants filed a Response, opposing the substitution, on
January 3, 2018. Doc. 44. While Spaulding has filed a
“Notice of Intended Filing of Reply, ” Doc. 46,
the Motion is now ripe for review. See M.D. Ga. L.R.
7.7 (“[If] the Court may clearly determine from the
record before it the relative legal positions of the parties,
” then a “motion[ ] may be considered . . .
immediately after filing.”).
Rule of Civil Procedure 25 allows for substitution in the
event that a party dies.” Lizarazo v. Miami-Dade
Corr. & Rehab. Dep't, 2017 WL 6629153, at *1
(11th Cir. Dec. 29, 2017). Rule 25 provides that, if 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 . .
. must be dismissed.” Fed.R.Civ.P. 25(a)(1).
“Rule 6(b) permits the court to extend the Rule 25
ninety-day period for good cause with or without motion.
Fed.R.Civ.P. 6(b)(1)(A).” Lizarazo, 2017 WL
6629153, at *4.
“[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. Service may be made
in any judicial district.” Fed.R.Civ.P. 25(a)(3).
As a threshold matter, whether the [90-day] deadline begins
to run depends upon the existence of a valid suggestion of
death on the record. A valid suggestion of death on the
record exists where (1) a formal suggestion of death was
placed on the record by one with the authority to do so, and
(2) the statement of death was properly served pursuant to
Tatum v. City of Americus, 2013 WL 5890201, at *1
(M.D. Ga. Nov. 1, 2013) (citations and punctuation omitted).
“[T]he party that filed the suggestion must serve
nonparty successors or representatives of the decedent with
the suggestion of death.” McGuinnes v. Novartis
Pharm. Corp., 289 F.R.D. 360, 362 (M.D. Fla. 2013).
“The serving party must undertake a thorough, good
faith effort to locate a deceased plaintiff's successor
or representative.” Hardy v. Potter, 2009 WL
765028, at *2 (S.D. Ga. Mar. 23, 2009) (punctuation omitted).
it does not appear that the requirements of Rule 25 have been
met, namely: Ms. Spaulding has not shown that she is a proper
party, successor, or representative. Further, Defendants'
assertion that a suggestion of death was filed on November
16, 2017, is incorrect. On that date, the Court continued
this case after being advised by Plaintiff's attorney
that Plaintiff had been injured and was under medical care.
Given that it appears Plaintiff died prior to the filing of
the Motion and that Spaulding has not been appointed as
Plaintiff's representative or successor, neither
Spaulding nor Plaintiff's attorney had authority to make
a formal suggestion of death. Tatum, 2013 WL
5890201, at *2. Thus, the Court cannot construe the Motion as
a suggestion of death. The earliest document that qualifies
as a suggestion of death is Defendant's Response, which
states that a notice of death has been filed and does not
contest the factual basis for such purported notice. Doc. 45;
Tatum, 2013 WL 5890201, at *2 (“[W]here the
plaintiff or his or her representative dies, it would make
more sense for the defendant to make such a filing
because doing so would force the plaintiff to move for
substitution.”). However, there is no proof of service
of the Response upon Spaulding or other non-parties as
required by Rule 25. Thus, the 90-day deadline for a motion
for substitution of parties has not begun to run.
upon due consideration, Spaulding's Motion is premature
and is DENIED without prejudice.
Spaulding's counsel is DIRECTED to
update the Court every 30 days after this Order as to the
status of the appointment of an administrator for the
Decedent-Plaintiff's estate. Counsel may file a renewed
motion for substitution of plaintiff in the instant matter
that complies with Rule 25 upon the appointment of an
administrator of Decedent-Plaintiff's estate. Defendants
are DIRECTED to update the Court
within 30 days after this Order, showing
what efforts have been made to effectuate Rule 25(a) service.
 The terms “suggestion of
death” and “statement noting death” are
interchangeable. Mandarino v. Mandarino, 257 F.R.D.
394, 395 (S.D.N.Y. 2009); Fed.R.Civ.P. 25 advisory
committee's note to 2007 amendment (“The language
of Rule 25 has been amended as part of the general restyling
of the Civil Rules to make them more easily understood and to
make style and terminology ...