Opinion
Civil Action 1:21-cv-155-TBM-RPM
04-13-2022
PAMELA TERRY PLAINTIFF v. BAY ST. LOUIS-WAVELAND SCHOOL DISTRICT DEFENDANT
ORDER DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION TO DISMISS
TAYLOR B. McNEEL UNITED STATES DISTRICT JUDGE.
This matter is before the Court on Defendant Bay St. Louis-Waveland School District's [17] Motion to Dismiss filed on January 18, 2022. For the reasons set forth below, the Motion is denied without prejudice to Defendant's right to re-file.
On May 7, 2021, Plaintiff Pamela Terry filed her [1] Complaint pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. On October 4, 2021, Defendant filed a [15] Suggestion of Death.
On January 18, 2022, Defendant filed a [17] Motion to Dismiss. Defendant asserts that, pursuant to Rule 25 of the Federal Rules of Civil Procedure, the Court should dismiss the litigation because there has been no response to the Defendant's Suggestion of Death of Plaintiff Pamela Terry [15] filed on October 4, 2021. When a party to litigation dies, a court may dismiss a decedent's action, “[i]f the motion [for substitution] is not made within 90 days after service of a statement noting the death.” FED. R. CIV. P. 25(A)(1). DEFENDANT'S CERTIFICATES OF SERVICE FOR BOTH THE [15] SUGGESTION OF DEATH AND THE [17] MOTION TO DISMISS REFLECT THAT THESE PLEADINGS WERE DELIVERED VIA THE ECF FILING SYSTEM, GIVING NOTICE TO PLAINTIFF'S COUNSEL. [15] ¶ 2; [17] ¶ 2.
“[T]he suggesting party must serve other parties and nonparty successors or representatives of the deceased with a suggestion of death in the same manner as required for service of motion to substitute.” Sampson v. ASC Indus., 780 F.3d 679, 681 (5th Cir. 2015) (quoting Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994)). The Suggestion of Death must be served on the decedent's personal representatives or estate in accordance with Rule 4 before the ninety-day period imposed by Rule 25 begins to run. Sampson, 780 F.3d at 681 (5th Cir. 2015); see also FED. R. CIV. P. 25(A)(3). “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.” Id. (quoting Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir. 1985)).
The Motion is denied without prejudice because a “Rule 25 notice of death must be personally served on deceased-plaintiff's estate” before the ninety-day clock begins to run. Sampson, 780 F.3d at 683. Defendant filed the Suggestion of Death, giving notice to the Court and Plaintiff's attorneys that “it has come to the attention” of Defense Counsel that Plaintiff is deceased. [15] at 1. However, Defendant has not provided proof that Plaintiff's personal representatives and/or estate have been served as required by Rule 4.
IT IS THEREFORE, ORDERED AND ADJUDGED that Defendant's Motion [17] to Dismiss is denied WITHOUT PREJUDICE to Defendant's right to refile upon proper compliance with Rule 25.