United States District Court, S.D. Georgia, Brunswick Division
SHANESIA S. JAUDON, Plaintiff,
ROBERT C. SASSER; MIKE THOMAS; TIMOTHY HOLLINGSWORTH; MATTHEW J. DOERING, in their individual and official capacities, and GLYNN COUNTY, GEORGIA, Defendants.
STAN BAKER, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' Objection to
the Magistrate Judge's December 20, 2018 Order. (Docs.
43, 45.) For the reasons set forth below, the Court
OVERRULES Defendants' Objections. The
Court's December 20, 2018 Order remains the Order of the
29, 2018, one day after the death of Defendant Robert C.
Sasser, the remaining Defendants in this action filed a
suggestion of death on the record pursuant to Federal Rule of
Civil Procedure 25(a). (Doc. 28.) Defendants served the
suggestion of death on “all the parties” but did
not serve any nonparties. (Id. at p. 1.) The Glynn
County Probate Court appointed Robert Brice Sasser as
administrator for Robert C. Sasser's estate on August 27,
2018. (Doc. 47-1.) Plaintiff filed a Motion to Substitute
Robert Brice Sasser for the decedent-Defendant on November
19, 2018. (Doc. 36.) Defendants opposed this Motion, arguing
that, because over 90 days had passed since the filing of the
suggestion of death, the Motion was untimely. (Doc. 37.)
Magistrate Judge found Plaintiff's Motion was not
time-barred because Rule 25's 90-day clock for motions to
substitute does not begin until the nonparty estate
administrator (or the nonparty most likely to be appointed as
the estate administrator) is served with the suggestion of
death. The Magistrate Judge also took Plaintiff's Motion
to Substitute under advisement pending a hearing and ordered
Defendants to serve the suggestion of death on Robert Brice
Sasser, administrator for Robert C. Sasser's estate.
(Doc. 43, p. 7.) Defendants now object, arguing that Rule 25
does not require service of a suggestion of death on a
nonparty. (Doc. 45, pp. 2-3.)
72 [of the Federal Rules of Civil Procedure] fundamentally
differentiates between nondispositive and dispositive
matters, for purposes of delineating the authority of
magistrate judges.” Pigott v. Sanibel Dev.,
LLC, No. CIVA 07-0083, 2008 WL 2937804, at *3 (S.D. Ala.
July 23, 2008); see also Fed.R.Civ.P. 72. Under Rule
72(a), a party may object to a magistrate judge's ruling
on a nondispositive matter by “fil[ing] objections to
the magistrate judge's order within 14 days after being
served with a copy of it.” United States v.
Dickert, 635 Fed.Appx. 844, 851 (11th Cir. 2016).
District judges will review the objections but can only
“modify or set aside” the magistrate judge's
order if the order “is clearly erroneous or contrary to
law.” Fed.R.Civ.P. 72(a); Dickert, 635
Fed.Appx. at 851. Here, Defendants do not contest that their
Objection, (doc. 45), should be reviewed under the standard
set forth in Rule 72(a) for nondispositive motions.
See Fed. R. Civ. P. 72(a) (“A party may not
assign as error a defect in the order not timely objected
‘clearly erroneous or contrary to law' standard of
review is extremely deferential.” Pigott, 2008
WL 2937804, at *3. “[A] finding is clearly erroneous
‘when although there is evidence to support it, the
reviewing court on the entire evidence is left with definite
and firm conviction that a mistake has been
committed.'” Traylor v. Howard, No.
1:10-CV-1316-CAP, 2010 WL 11527089, at *1 (N.D.Ga. June 1,
2010) (quoting Holton v. City of Thomasville Sch.
Dist., 425 F.3d 1325, 1350 (11th Cir. 2005)); see
also Howard v. Hartford Life & Acc. Ins. Co., No.
3:10-CV-192-J-34, 2012 WL 3069384, at *2 (M.D. Fla. July 26,
2012). “A magistrate judge's order ‘is
contrary to law when it fails to apply or misapplies relevant
statutes, case law, or rules of procedure.'”
Malibu Media, LLC v. Doe, 923 F.Supp.2d 1339, 1347
(M.D. Fla. 2013) (quoting Botta v. Barnhart, 475
F.Supp.2d 174, 185 (E.D.N.Y. 2007)).
do not argue that the Magistrate Judge misapplied the law
when determining that Rule 25 requires a suggestion of death
be served on a decedent's representative or successor to
trigger the 90-day clock. Indeed, they acknowledge that this
Court has ruled in another case “that there must be
service on the estate to trigger the 90-deadline, ” and
that “there is a circuit split concerning this
issue.” (Doc. 45, p. 2.) By Defendants' own
admission, the Magistrate Judge's ruling is based on
legal precedent interpreting Rule 25's reference to
service on nonparties. Defendants cannot point to any binding
authority showing otherwise. Thus, the Magistrate Judge's
Order is not clearly erroneous or contrary to law.
Lizarazo v. Miami-Dade Corrections & Rehabilitation
Department, the only Eleventh Circuit Court of Appeals
case addressing Rule 25's reference to service on
nonparties, the Eleventh Circuit stated: “[T]o start
Rule 25's ninety-day clock, a suggestion of death must be
filed with the court and served on a personal representative
of the deceased party.” Id. at 1009.
Defendants attempt to distinguish Lizarazo, arguing
that the case stands for the proposition that service on a
decedent's representative is not required to start the
Rule 25 clock. (Doc. 45, pp. 2-3.)
argue that the court in Lizarazo determined the
90-day deadline in that case expired before the deceased
party's estate administrator had been formally appointed.
Id. According to Defendants, because the 90-day
clock in Lizarazo ran before formal appointment of
the estate administrator, service on the decedent's
representative cannot be a requirement to trigger the 90-day
clock. However, in Lizarazo, the Eleventh Circuit
presumed that the 90-day clock began to run on the day
“the defendants served Mr. Lizarazo's father, one
of the people they anticipated might serve as his personal
representative, with that notice.” Lizarazo,
878 F.3d at 1009. Therefore, in that case, the 90-day clock
began to run on the day the parties properly served the
nonparty most likely to be appointed the estate
representative. Unlike Defendants in this case, the
Lizarazo defendants served an interested nonparty
with the suggestion of death, and that service started the
90-day clock. There is nothing in Lizarazo to
suggest that the 90-day clock begins to run where a
suggestion of death is filed, but no effort is made to serve
any nonparties, as was the case here. To the contrary, the
plain language of Lizarazo confirms that the clock
does not start to run until the suggestion of death is
“served on a personal representative of the deceased
there is a circuit split concerning the requirements of Rule
25, Lizarazo and other district court cases from
around the Eleventh Circuit confirm that in this circuit a
decedent's representative or successor must be served to
trigger the 90-day clock in Rule 25. See, e.g.,
Bennett v. Birmingham Bd. of Educ., No.
2:09-CV-0717, 2010 WL 11565294, at *3 (N.D. Ala. July 9,
2010) (finding that, when a decedent's estate
administrator is not known, the “nonparties that must
be served include those that would appear to have a
significant claim upon acting as the deceased party's
successor or representative of his or her estate.”). At
a minimum, there must be a thorough, good faith effort to
locate and serve the deceased party's successor, which
did not occur here. See, e.g., Hardy v.
Potter, No. CV408-223, 2009 WL 765028, at *2 (S.D. Ga.
Mar. 23, 2009).
in this case did not attempt to serve any nonparty connected
to Robert C. Sasser's estate. Thus, the Magistrate Judge
correctly found that the 90-day clock to file a motion to
substitute did not begin to run when Defendants filed their
suggestion of death with the Court, and could not ...