     Case: 14-10085   Document: 00512968203     Page: 1   Date Filed: 03/13/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 14-10085                   United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
KEVA NUCKOLS SAMPSON,                                            March 13, 2015
                                                                  Lyle W. Cayce
             Plaintiff - Appellant                                     Clerk

v.

ASC INDUSTRIES,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Northern District of Texas


Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      This appeal raises the question of whether personal service of a
suggestion of death on a deceased-plaintiff’s estate is required in order for the
ninety-day time limit to run for the substitution of a party under Federal Rule
of Civil Procedure (“Rule”) 25. For the reasons outlined below, we hold that
personal service is required.
                                      I.
      Rebecca Breaux (“Breaux”) brought this age discrimination action
against her employer ASC Industries on May 6, 2012. On May 24, 2013,
Breaux’s attorney Lurlia Oglesby (“Oglesby”) filed with the court a statement
in accordance with Rule 25(a)(3) noting that Breaux had died. On July 9, 2013,
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the district court stayed the action pending the substitution of parties. After
the ninety days allotted for the substitution of a party under Rule 25(a)(1)
passed without any motion being filed, and on August 30, 2013, ASC Industries
moved for the action to be dismissed pursuant to the rule. On the next business
day, September 3, 2013, the district court granted ASC Industries’ motion to
dismiss.
      On October 1, 2013, Oglesby filed a motion on behalf of Breaux’s estate
to alter or amend the judgment of dismissal. On October 15, 2013, Oglesby
filed a motion on behalf of Breaux’s estate to substitute Breaux’s daughter, and
the independent executrix of Breaux’s estate, Keva Nuckols Sampson
(“Sampson”) as the plaintiff in this action. On October 29, 2013, the district
court held a hearing on both of the motions filed by Oglesby on behalf of
Breaux’s estate. Following the hearing, the district court ordered mediation
and allowed the parties to engage in further discovery. After an unsuccessful
mediation, on December 19, 2013, the district court, in a written order and
opinion, denied the motions to alter or amend the judgment of dismissal and
to substitute a party.
      In its order, the district court rejected Breaux’s estate’s argument that
the ninety-day time period did not run after the notice of death was filed
pursuant to Rule 25. Breaux’s estate contended that the time period did not
run because Oglesby did not properly serve Breaux’s estate, which Oglesby
now represents. Breaux’s estate argued that when the notice was filed with
the court, Oglesby was acting as the attorney for the deceased-plaintiff and did
not have a non-party to serve. ASC Industries countered that since Oglesby
was retained by Breaux’s estate, Oglesby was in a position to move for the
substitution of parties within the ninety-day period.
      The district court found that conversations between Sampson and
Oglesby in May 2013 “caused Oglesby to become an attorney for Breaux’s
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estate in this action . . . and that both [Sampson and Oglesby] viewed Oglesby
to be the attorney for the estate in this action from that point forward.” Breaux
v. ASC Industries, 298 F.R.D. 339, 345 (N.D. Tex. 2013). The district court
concluded that Oglesby was aware that the ninety-day time period was
running once she filed the suggestion of death. For that reason, the district
court presumed that Sampson, i.e. Breaux’s estate, had adequate notice of the
ninety-day time period in which a motion for substitution should have been
filed. The district court stated that Oglesby was acting on behalf of Sampson
when she filed the notice of death in May 2013.           The district court also
emphasized that Oglesby never filed a request for an extension of the ninety-
day time limit. Accordingly, the district court concluded that given the absence
of a motion for an extension, the ninety-day time period appropriately ran and
the action was properly dismissed.
      Sampson now appeals the district court’s dismissal contending that the
dismissal was in error because Breaux’s estate did not receive personal service
of the suggestion of death.
                                     II.
      The interpretation of Rule 25(a) is a question of law, which we review de
novo. Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 827
(5th Cir. 1996). Rule 25 states that when a party dies and the claim is not
extinguished, a statement noting death must be served on parties in
accordance with Rule 5 and on non-parties in accordance with Rule 4. Fed. R.
Civ. P. 25(a). Following the service of the statement noting death, a motion for
substitution of the proper party must be made within ninety days or the action
must be dismissed. Fed. R. Civ. P. 25(a)(1).
      Personal representatives of a deceased-plaintiff’s estate are non-parties
that must be personally served under Rule 25. Barlow v. Ground, 39 F.3d 231,
233 (9th Cir. 1994) (“[T]he suggesting party must serve other parties and
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nonparty successors or representatives of the deceased with a suggestion of
death in the same manner as required for service of the motion to substitute.
Thus, a party may be served the suggestion of death by service on his or her
attorney, Fed. R. Civ. P. 5(b), while non-party successors or representatives of
the deceased party must be served the suggestion of death in the manner
provided by Rule 4 for the service of a summons.”) (emphasis added) (internal
citation omitted); Fariss v. Lynchburg Foundry, 769 F.2d 958, 961 (4th Cir.
1985) (“Where, as here, a personal representative has been appointed following
the death of a party, the suggestion of death must be personally served on that
representative.”).   “Personal service of the suggestion of death alerts the
nonparty to the consequences of death for a pending suit, signaling the need
for action to preserve the claim if so desired.” Fariss, 769 F.2d at 962.
      Service of the notice of death on the personal representative for a
deceased-plaintiff’s estate is generally required, even where it is difficult to
determine who the personal representative is. Id. (“In some instances, it may
prove more difficult to determine whom to serve, but it is generally appropriate
to require the serving party to shoulder that burden, rather than permitting
the absence of notice to decedent’s representative to lead to forfeiture of the
action.”). Service on the attorney for the plaintiff-decedent’s estate will not
suffice as service on the estate. Grandbouche v. Lovell, 913 F.2d 835, 837 (10th
Cir. 1990) (holding that even though the attorney for the decedent’s estate was
noticed, the successor or representatives of the deceased-party’s estate were
required to be noticed as well).
      In Atkins v. City of Chicago, 547 F.3d 869 (7th Cir. 2008), a case with
similar facts as those of the instant appeal, the Seventh Circuit found that a
notice of death filed by a deceased-plaintiff’s attorney but not served on the
deceased-plaintiff’s estate did not suffice to start the ninety-day clock. Id. at
873–74. The court formed this conclusion even though the deceased-plaintiff’s
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                                         No. 14-10085
wife who later became the representative of his estate was aware of her
husband’s death and may have been aware that the suggestion of death was
being filed on her behalf. 1 Id. at 873. The court stated:
       The case law makes clear that . . . 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 representative or successor. The
       rule is of greatest importance in cases such as Farris 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 [herself] in a
       situation in which a lawyer for someone else (the decedent) has
       thrust [her] into a case that [s]he would rather not be in, or at
       least not as the client of this lawyer.
Id. at 874.
       We have yet to speak precisely on the question of whether a deceased-
plaintiff’s estate must be personally served the suggestion of the plaintiff’s
death in order for the ninety-day clock to run under Rule 25. However, we are
persuaded by the decisions of our sister circuits which have required Rule 4
service under these circumstances. See Atkins, 547 F.3d at 873–74; Barlow, 39
F.3d at 232–34; Grandbouche, 913 F.2d at 836–37; Fariss, 769 F.2d at 961–64.
Therefore, we join the Fourth, Seventh, Ninth, and Tenth Circuits in holding
that when a plaintiff dies, in order for the ninety-day deadline to run under
Rule 25, the suggestion of death must have been personally served on the
deceased-plaintiff’s estate pursuant to Rule 4.
       Notwithstanding the district court’s valid point that a motion for an
extension of time would have been a prudent course of action by Oglesby under


       1The notice of death was captioned “Plaintiff’s Motion to Substitute Because of Death”
and stated “Sadly, one of the plaintiffs . . . 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.” Atkins,
547 F.3d at 871–72.
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the circumstances of this case, we do not agree with the district court’s
conclusion that Oglesby’s filing of the notice of death was sufficient to run the
ninety-day time limit, given the absence of Rule 4 service on the representative
of Breaux’s estate. In reaching its holding, the district court relied upon our
decisions in Ransom v. Brennan, 437 F.2d 513 (1971) and Ray v. Koester, 85 F.
App’x 983 (2004) (unpublished). However, neither of these decisions squarely
addressed the issue now before us in the instant appeal.
      In Ransom, we addressed the question of whether Rule 4 service on a
deceased-defendant’s estate of a motion for substitution was required in order
for the court to grant the motion and substitute the deceased-defendant’s
estate as a party. 437 F.2d at 515. We held that Rule 4 service was required,
even if the executrix had actual notice of the motion for substitution. Id. at
519 (“Assuming the executrix had such actual notice . . . it would not operate
as a substitute for process.”). With regard to the notice of the defendant’s
death, the Ransom court simply stated that the defendant’s attorney suggested
the defendant’s death on the record. Id. at 515.
      While the Ransom court seemed to accept that the deceased-defendant’s
attorney properly suggested the defendant’s death, the issue of what
constituted proper service for the notice of death was not before the court.
Nevertheless, it would be contrary to the reasoning in Ransom to conclude that
Rule 4 service is not required for the notice of death. In relation to service of
the motion for substitution, the Ransom court explained that “mere ‘notice’
[wa]s not a sufficient ground upon which a court c[ould] sustain the validity of
service of process when Congress has established other definitive standards.”
Id. at 519 (internal quotation marks and citation omitted). Likewise, notice of
the suggestion of death that is not served in compliance with Rule 4 is
insufficient to begin the ninety-day time period.


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                                  No. 14-10085
      In Ray, we held that a deceased-defendant’s attorney who filed the
suggestion of death for his client was not required to identify the successor
party in order for the Rule 25 ninety-day clock to run. 85 F. App’x at 984. In
Ray, the deceased-defendant’s attorney noted the defendant’s death two days
after it occurred. Id. The district court in the instant case inferred from this
fact that a representative of the deceased-defendant’s estate was likely not in
existence at the time the suggestion of death was filed, and therefore, the
ninety-day period ran despite no personal service on the deceased-defendant’s
estate.   See Breaux, 298 F.R.D. at 347–48.       We decline to make such an
inferential leap. Just as in Ransom, the issue of the service of a notice of death
was not clearly before the Ray court.
                                     III.
      We hold, consistent with the other appellate courts that have spoken on
this issue, that a Rule 25 notice of death must be personally served on a
deceased-plaintiff’s estate, in accordance with Rule 4, before the ninety-day
clock can begin to run on the deceased-plaintiff’s action. Thus, we REVERSE
the district court’s final judgment dismissing this action and REMAND for
further proceedings consistent with this opinion.




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