Opinion
Case No. 10-14849 Adversary Case No. 10-1188
07-21-2011
In re: Lloyd Martin Bowers Dale Michael Bowers, Debtors. Rodney Rogers, Plaintiff, v. Lloyd Martin Bowers and Dale Michael Bowers, Defendants.
This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
Burton Perlman
United States Bankruptcy Judge
Judge Burton Perlman
Chapter 7
ORDER DENYING DEFENDANTS' MOTION TO DISMISS
The matter before the Court arises from debtor defendants', Lloyd Martin Bowers and Dale Michael Bowers, Motion to Dismiss. Plaintiff filed a Memorandum Contra Debtors' Motion to Dismiss, to which defendants replied. Having considered the motions and memoranda, the Court reaches the following conclusion.
I. Jurisdiction
The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the general order of reference entered in this district. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I).
II. Arguments
Defendants argue that the case must be dismissed, because Rodney Rogers is deceased, and a motion for substitution of the proper party was not made within ninety (90) days of the statement of his death pursuant to Fed.R.Civ.P. 25. They assert that the joint pretrial statement filed by the parties on January 4, 2011 made clear reference to Mr. Rogers' death throughout, and thus, a motion to substitute a party for plaintiff was due on April 4, 2011.They argue that the statement of death, as contained in the joint pretrial statement, was properly served on all involved parties for purposes of Fed.R.Civ.P. 25.
Plaintiff argues that the filing referenced by defendants is not sufficiently formal to trigger the ninety (90) day period referenced in Fed.R.Civ.P. 25. Further, plaintiff argues that the statement was otherwise deficient, because it was not properly served. Finally, plaintiff notes that the delay in filing the suggestion of death and motion for substitution resulted from pending issues in Ross County Probate Court, where Mr. Rogers' estate is being probated.
III. Applicable Law
Fed.R.Civ.P. 25, as incorporated into bankruptcy practice by Fed.R.Bankr.P. 7025, reads in pertinent part as follows:
(a) Death.
(1) Substitution if the Claim Is Not Extinguished. 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. . .
(3) Service. 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.
A recent case from the U.S. District Court for the Southern District of Ohio sets forth what triggers the ninety (90) day period contained in Fed.R.Civ.P. 25(a)(1):
Two steps are required for the 90-day period to commence. First, the suggestion of death must be made upon the record. [Fed.R.Civ.P. 25(a)(1) ]; Barlow v. Ground, 39 F.3d 231, 233 (9th Cir.1994); Grandbouche v. Lovell, 913 F.2d 835, 836-37 (10th Cir.1990). Second, the suggestion of death must be served upon the other parties and the deceased's successor. Barlow, 39 F.3d at 233; Grandbouche, 913 F.2d at 836-37; Fariss v. Lynchburg Foundry, 769 F.2d 958, 961-62 (4th Cir.1985). If the deceased's successor is a non-party, then the suggestion of death must be served in accordance with Rule 4. Fed.R.Civ.P. 25(a)(1); Barlow, 39 F.3d at 233-34 ; Grandbouche, 913 F.2d at 837; Fariss, 769 F.2d at 962.Bauer v. Singh, 2011 WL 320189, *1 (S.D. Ohio 2011) (quoting Jenkins v. Macatawa Bank Corp., Nos. 1:03-CV-321, 1:05-CV-460, 1:05-CV-499, 2007 WL 737746, *1 (W.D. Mich. 2007)). Regarding the first requirement, "[m]ere reference to a party's death in court proceedings or pleadings is not sufficient to trigger the limitations period for filing a motion for substitution." Id. (quoting Grandbouche, 913 F.2d at 836-37). Regarding the second requirement, "[t]he law is well settled that the Suggestion of Death must identify the successor or representative of the deceased." Long v. Time Ins. Co., 2008 WL 3200844 (S.D. Ohio 2008) (quoting Dietrich v. Burrows, 164 F.R.D. 220, 222 (N.D. Ohio 1995) (internal citation omitted)).
IV. Applying the law
The technical arguments advanced by defendants are without merit. The references to Mr. Rogers' death, however pervasive throughout the joint pretrial statement, were not made in a format sufficient to trigger the ninety (90) day period under Fed.R.Civ.P.25(a). Further, even if the references to Mr. Rogers' death in the joint pretrial statement had satisfied the rule's threshold requirement, that document was not served upon Gaylord Otterbacher, the executor of his estate and his representative.
Finally, the Court notes that "[i]t is entirely contrary to the spirit of the Federal Rules of Civil Procedure to dismiss cases based on technicalities . . . rather than on the merits." Head v. Vilsack, 2011 WL 2118805 (M.D. Tenn. 2011) (citing Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).
V. Conclusion
On the basis of the foregoing, defendants' Motion to Dismiss is DENIED. IT IS SO ORDERED.
Copies to:
Default list.