United States District Court, E.D. Virginia, Richmond Division
ROBERT E. PAYNE, Senior District Judge.
This matter is before the court on DEFENDANT ROBERT CUSHIONBERRY'S MOTION TO DISMISS (Docket No. 284). For the reasons set forth below, the motion will be denied.
Woodson filed a Complaint against the City of Richmond and several other defendants, alleging several violations of his constitutional rights under the Eighth Amendment and 42 U.S.C. §1983. Docket No. 1. Later, with leave of Court, Woodson filed a Fourth Amended Complaint, adding Cushionberry as a defendant. Docket No. 187. Woodson again asserted claims under §1983 and the Eighth Amendment, alleging that Cushionberry violated his Constitutional rights while Woodson was imprisoned in the Richmond City Jail and Cushionberry was employed as a medical technician at the same facility. Id.
On July 21, 2014, Cushionberry filed his Answer to the Fourth Amended Complaint. Docket No. 230. Seventeen days later, on August 2, 2014, Cushionberry died. Docket No. 418 at 1. The lawyers who had represented Cushionberry while he was alive filed a Suggestion of Death Upon the Record under Fed.R.Civ.P. 25(a)(1) on August 11, 2014. Docket No. 242. On November 17, 2014, 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.
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 service of a statement noting the death, the action by or against the decedent must be dismissed."
The parties disagree as to, among other things, whether a deceased party's lawyer is permitted to file a statement noting that party's death under Rule 25(a)(1). Cushionberry argues that his lawyers were permitted to 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, however, argues that Rule 25(a)(1) limits the individuals who can file a statement noting a death of a party to other parties and the representatives or successors of the deceased party. According to Woodson, Cushionberry's attorneys would not qualify as a "representative" under the Rule. If Woodson is correct, the statement that noted Cushionberry's death was invalid and therefore it did not start the 90-day clock, and, accordingly, Woodson's pending Motion to Substitute Parties (Docket No. 402) is timely which would necessitate denial of Cushionberry's 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 the rule, suggested form language in the Federal Rules of Civil Procedure, and the Advisory Committee notes all teach that those who may file such a statement are limited to parties and "the decedent's successor or representative." Moreover, courts have determined that 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. The informing case law in the Fourth Circuit is Farris v. 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 the action and his wife was appointed administratrix of his estate. Id . at 961. After the appointment, 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, and not on the plaintiff's wife, was sufficient to start the 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. Id . at 962. In so doing, the Fourth Circuit noted that "[t]he attorney's agency to act ceases with the death of his client...and he has no power to continue or terminate an action on his own initiative." Id . (citing Restatement (Second) of Agency §120(1) (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)." Id.
Although the Fariss case does not explicitly hold that a deceased party's lawyer does not have the power to file a statement noting death under Rule 25(a)(1), it does establish that a deceased party's lawyer is not "a legal successor or representative of the estate." Id . Thus, under Fourth Circuit precedent, a deceased party's lawyer does not 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 decision in Fariss is in line with the decisions of other federal courts that have considered the issue. For example, in Fehrenbacher v. Quackenbush, 759 F.Supp. 1516 (D. Kan. 1991), 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, since his authority terminated on the death, he is not a representative of the deceased party' of the sort contemplated by the rule." Id . at 1518 (quoting 7C C. Wright & A. Miller & M. Kane, Federal Practice and Procedure, Civil, §1955, at 545 (2d ed. 1986)). Similarly, in International Cablevision, Inc. v. Sykes, 172 F.R.D. 63 (W.D.N.Y. 1997), 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); Smith v. Planas, 151 F.R.D. 547, 549-50 (S.D.N.Y. 1993)). Finally, in Kessler v. Southeast Permanente ...