                               In the

United States Court of Appeals
                For the Seventh Circuit

No. 07-2757

B RANDIE A TKINS, as personal representative of
William Atkins, deceased,
                                        Plaintiff-Appellant,
                            v.


C ITY OF C HICAGO, et al.,
                                                Defendants-Appellees.


              Appeal from the United States District Court
         for the Northern District of Illinois, Eastern Division.
                No. 05 C 6109—Milton I. Shadur, Judge.


  A RGUED S EPTEMBER 25, 2008—D ECIDED N OVEMBER 10, 2008




  Before P OSNER, F LAUM, and E VANS, Circuit Judges.
  P OSNER, Circuit Judge. This appeal from the dismissal of a
civil rights suit under 42 U.S.C. § 1983 requires us
to interpret Rule 25(a) of the Federal Rules of Civil Pro-
cedure, which governs the substitution of a party who
has died. The rule was revised last year, after the
district court proceedings relating to this appeal, so our
references will be to the unamended rule. The com-
mittee note states that the changes made by the amended
rule are only stylistic.
2                                               No. 07-2757

  The rule provides that if the claim on which the suit
is based survives the death (some claims, such as claims
of defamation, die with the claimant), the court may
order the substitution of the proper party, ordinarily
the personal representative of the party who has died.
But the suit must be dismissed if the motion for substitu-
tion is filed more than 90 days “after the death is sug-
gested upon the record by service of a statement of the
fact of death.” Fed. R. Civ. P. 25(a)(1). The rule provides
that service on the parties must be in accordance with
the procedure for service set forth in Rule 5, see Russell v.
City of Milwaukee, 338 F.3d 662, 665-67 (7th Cir. 2003),
and on nonparties “in the manner provided by Rule 4
for the service of a summons,” but the rule does not set
forth any criteria for determining which nonparties
must be served. The committee note to the 1963 amend-
ment to the rule explains that the 90-day deadline for
making the motion may be extended pursuant to Rule 6(b)
but also that if the motion for an extension of time is
made long after death the judge may deny it.
  In October 2003 Chicago police stopped a car driven
by Adam Atkins. His brother William Atkins was a
passenger. The police released Adam but arrested
William on the basis of a parole-violation warrant bearing
his name and his Illinois Department of Corrections
identification number. He was held at the police station
overnight and then transferred to the custody of the
Department of Corrections, which placed him in the
state prison at Joliet. From the moment of his arrest
William Atkins steadfastly denied that he was the William
Atkins named in the warrant. He was released from the
No. 07-2757                                                3

Department’s custody after 37 days. He brought this
suit against the arresting officers, prison guards, and
others, mainly contending that the Department lacks
proper procedures for determining mistaken identifica-
tion, but also claiming that his arrest was illegal and that
he was mistreated while at Joliet.
  Although he complained about the misidentification
to guards and other staff at Joliet, he did not ask to
contact a lawyer, or seek to challenge his confinement as
he could have done by petitioning for habeas corpus
under state law, 735 ILCS 5/10-101 et seq.; if he
struck out he could then (since his federal constitutional
rights had arguably been violated) ask for federal habeas
corpus. 28 U.S.C. § 2241(c)(3). The availability of judicial
remedies for a mistaken incarceration is important
because prisons would be rendered unmanageable if, as
the plaintiff contends, prison guards and miscellaneous
prison staff have a constitutional duty, even when there
are adequate formal remedies against unjustified im-
prisonment, to investigate a prisoner’s claim of misidentifi-
cation. As the Supreme Court said in Baker v. McCollan,
443 U.S. 137, 145-46 (1979), “Given the requirements that
arrest be made only on probable cause and that one
detained be accorded a speedy trial, we do not think a
sheriff executing an arrest warrant is required by the
Constitution to investigate independently every claim of
innocence, whether the claim is based on mistaken
identity or a defense such as lack of requisite intent. Nor
is the official charged with maintaining custody of the
accused named in the warrant required by the Constitution
to perform an error-free investigation of such a claim. The
4                                               No. 07-2757

ultimate determination of such claims of innocence is
placed in the hands of the judge and the jury.” And so in
Hernandez v. Sheahan, 455 F.3d 772, 777 (7th Cir. 2006),
we rejected “the rule that [the plaintiff] wants the Sheriff
to follow, under which every deputy must be open to
persuasion for as long as a person is in custody.” We
pointed out that such a rule “would create a substantial
possibility that by presenting his contention over and
over even a guilty suspect would eventually find a
deputy who did not understand the weight of the evid-
ence and let him go. That would frustrate the public
interest in carrying out the criminal law.” Id.
  The suit was filed in October 2005. Both Atkins
brothers were named as plaintiffs, though Adam was
complaining only about the stop. Both were represented
by the same lawyer, Joseph Longo. The suit was proceed-
ing through its pretrial stages when on December 9,
2006, Longo filed with the court a document captioned
“Plaintiff’s Motion to Substitute Because of Death.” This
strange document reads in its entirety: “Sadly, one of the
plaintiffs, William O. Atkins, in his 30s has recently died
tragically. The plaintiff will need to open an estate for
him, so that his wife can continue the lawsuit on his
behalf. Federal Rules of Civil Procedure 25(a). The
plaintiff filed this motion to keep the Honorable Judge
Shadur [the district judge presiding over this case] in-
formed of the plaintiff’s death.” The referent of “plaintiff”
is apparently the deceased William Atkins, though he
had ceased, upon his death, to be a party.
  The district judge denied the motion. No estate had
been opened and no personal representative of the dece-
No. 07-2757                                                   5

dent had been appointed. A motion for substitution may
be filed only by a party, by the executor or administrator
of the decedent’s estate, or, if the estate has already
been distributed to the heirs, by them. See Fed. R. Civ. P.
25(a)(1). The decedent’s lawyer may not file such a
motion in his own name because he no longer has a
client, but for obvious practical reasons he is permitted to
file a motion for an extension of time if there is no
executor because the decedent died without a will and an
administrator of the estate has not yet been named. Conti-
nental Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir.
1993); Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467, 470 (2d
Cir. 1998); 6 Moore’s Federal Practice § 25.12[1] (3d ed. 2008).
  On March 28, 2007, the 90-day deadline for filing a
motion for substitution on account of death expired.
Deeming the motion filed by Longo a suggestion of
death within the meaning of Rule 25(a)(1), one of the
defendants moved to dismiss the suit. The judge gave
Longo till April 26 to substitute a proper party for
William Atkins. The day before this deadline expired,
Longo filed a petition in an Illinois state court on behalf
of Atkins’s wife, Brandie Atkins, to open an estate for
the decedent, and filed in the district court a motion to
substitute the wife as plaintiff. But it was not until May 7
that the Illinois court in which William Atkins’s estate
was being probated actually appointed Brandie as the
personal representative of her husband’s estate.
  When a motion for an extension of time in a federal
civil case is filed after the expiration of a deadline, the
judge must determine whether the failure to meet the
6                                               No. 07-2757

deadline was “because of excusable neglect.” Fed. R.
Civ. P. 6(b)(2). Longo’s failure to ask for an extension
of the 90-day deadline within the 90 days was inexcusable,
as in Russell v. City of Milwaukee, supra, 338 F.3d at 667-
68. Longo argues, and we accept, that Mrs. Atkins was
too upset by her husband’s death (he was murdered),
and the disordered state of his possessions when he
died, to petition promptly to open an estate. But there
was nothing to prevent Longo from bringing the
problem to the district court’s attention in a motion for
an extension of time for filing the motion for substitution.
  Longo argues that he couldn’t file anything during this
period because he had not been retained by Mrs. Atkins.
But that had not prevented him from filing the motion
to substitute her back in December. He wanted to keep
the suit alive and expected to represent Mrs. Atkins in it,
and that intent and expectation entitled him to file a
motion for an extension of time required to keep the
case alive.
   He further argues that his (improper) motion for sub-
stitution filed in December 2006 was not a valid sugges-
tion of death to start the 90-day clock ticking because it
was not authorized by the now-deceased plaintiff, his
client. (Actually Longo had and has a live client, Adam
Atkins, whose case remains pending in the district court.
It is because the order dismissing William Atkins’s case
was entered as a final judgment under Rule 54(b) that
we have appellate jurisdiction.) That is a ridiculous
argument; a suggestion of death cannot be authorized by
the person who has died, at least not without the inter-
vention of a medium.
No. 07-2757                                                 7

  Another unpersuasive reason for thinking the Decem-
ber motion ineffective is that Rule 25(a)(1) requires that
the suggestion of death be noted “on the record.” The
Wright and Miller treatise says that once a party dies,
his attorney has no authority to add anything to the
record, 7C Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice and Procedure: Civil § 1955 (3d ed.
2007), implying that Longo should have notified the
defendants’ lawyer of Atkins’s death and that that
lawyer would then have filed the suggestion of death
with the court. The point strikes us as fussy, as well as
inconsistent with the accepted proposition that the dece-
dent’s lawyer can ask for an extension of time, the
request for which will be “on the record” even though
he has no client when he makes the request.
   But in fact the December motion did not start the 90-
day clock ticking because it was not served on Mrs.
Atkins. Rule 25(a)(1) requires service, though it does not
say which nonparties must be served (Mrs. Atkins was a
nonparty)—obviously not every person in the United
States who happens not to be a party to the lawsuit in
question. But nonparties with a significant financial
interest in the case, namely the decedent’s successors (if
his estate has been distributed) or personal representative
(it has not been), should certainly be served. Barlow v.
Ground, 39 F.3d 231, 233-34 (9th Cir. 1994); Grandbouche v.
Lovell, 913 F.2d 835, 837 (10th Cir. 1990) (per curiam);
Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir.
1985). And Mrs. Atkins was one of those nonparties, in
fact (it appears) the nonparty with the biggest stake in
the continuation of the case.
8                                                  No. 07-2757

  Service on her would have been especially important
had an opposing party, to start the 90-day clock, filed
the suggestion of death, as in Fariss v. Lynchburg Foundry,
supra, 769 F.2d at 961; see 6 Moore's Federal Practice, supra,
§ 25.12[1]. The December 2006 motion was filed on her
behalf, and obviously she knew that her husband had
died and there is no suggestion that in seeking to sub-
stitute her for her husband as plaintiff (for remember
that that is what the motion asked) Longo was acting
without her authorization. He was William Atkins’s
lawyer and presumably would continue his representa-
tion of the plaintiff in the suit when the widow was
substituted. He asked that she be substituted (and there
is no suggestion that she demurred) and he filed the
petition to open an estate for William Atkins with her as
the administrator.
  All this said, the cases are unequivocal that an obviously
interested nonparty, such as Mrs. Atkins, must be served
for the 90-day clock to start running. Besides the
Grandbrouche and Fariss cases, see Bass v. Attardi, 868
F.2d 45, 50 n. 12 (3d Cir. 1989); Rende v. Kay, 415 F.2d 983
(D.C. Cir. 1969); Inglis v. Buena Vista University, 235 F. Supp.
2d 1009, 1029-30 (N.D. Iowa 2002); Kasting v. American
Family Mutual Ins. Co., 196 F.R.D. 595, 599-601 (D. Kan.
2000). It is true that George v. United States, 208 F.R.D. 29,
32 (D. Conn. 2001), holds that if the suggestion of death
is filed by the opposing party, that party is not required
to serve a successor or representative if he doesn’t
know who that is, and so the 90-day period starts to run
from the filing of the suggestion. The other side can
protect itself by telling the moving party who the
No. 07-2757                                                9

successor or representative is, and if necessary filing a
motion for an extension of time for filing a motion to
substitute that person for the decedent. George has no
application to this case, however, because the suggestion
of death was filed by the decedent’s lawyer.
  The case law makes clear that with the inapplicable
exception noted in George, notice to the lawyers, service
on the lawyers, knowledge of all concerned—nothing
will suffice to start the 90-day clock running except
service on whoever is identified as the decedent’s represen-
tative or successor. The rule is of greatest importance in
cases such as Fariss in which it is the opposing party
that has filed the suggestion of death, but insistence on
service even when the decedent’s lawyer is the person
making the suggestion makes a certain amount of sense;
it protects the nonparty from finding himself (in this
case herself) in a situation in which a lawyer for someone
else (the decedent) has thrust him into a case that he
would rather not be in, or at least not as the client of this
lawyer. See Barlow v. Ground, supra, 39 F.3d at 233-34; cf.
Fariss v. Lynchburg Foundry, supra, 769 F.2d at 962-63.
  The December 2006 motion was thus a nullity; the start
gun for the 90-day race has not been fired. Attorney Longo
confused matters terribly, but the defendants are at fault
as well. As soon as they were notified of William Atkins’s
death they should have filed a suggestion of death with
the court and served it on Atkins’s widow; for Longo’s
December motion, we recall, indicated that she would
be appointed her husband’s personal representative to
carry on the suit.
10                                         No. 07-2757

  The dismissal of Brandie Atkins is reversed with in-
structions to reinstate her as a plaintiff.




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