United States District Court, N.D. Texas, Dallas Division
ALBERT G. HILL, JR., Plaintiff,
FIRST TENNESSEE BANK, N.A., Defendant.
MEMORANDUM OPINION AND ORDER
Lindsay United States District Judge.
the court is the Temporary Administrator of the Estate of
Albert G. Hill, Jr.'s (“Hill Jr.”) Motion to
Substitute (Doc. 52) (“Motion to Substitute”),
filed April 24, 2018. By her motion, Margaret Keliher
(“Keliher”), the Temporary Administrator of the
Estate of Hill Jr. (the “Estate”) seeks to
substitute into the above-captioned case for Hill Jr., who
died on December 2, 2017. Having considered the motion,
response, record, and applicable law, the court
denies without prejudice Keliher's
Motion to Substitute (Doc. 52).
court assumes the parties' familiarity with this case and
limits its recitation of background facts to those directly
relevant to Keliher's Motion to Substitute. On January 2,
2018, counsel for Hill Jr. filed a Suggestion of Death,
stating, “on the record, pursuant to Rule 25(a)(1) of
the Federal Rules of Civil Procedure, the death of [Hill
Jr.], Defendant, on December 2, 2017.” Statement Noting
Death (Doc. 51). On December 7, 2017, an Application for
Probate of Will and Issuance of Letters Testamentary was
filed in Probate Court No. 2 of Dallas County, Texas (the
“Probate Court”). See Estate of Albert
Galatyn Hill, Jr., Deceased, PR-17-04117-2,
pending in the Probate Court No. Two of Dallas County, Texas.
On January 5, 2018, Keliher filed an Emergency Application
for Appointment of Temporary Administrator with the Probate
Court, advising it of these proceedings and those in a
closely related matter, Civil Action No. 3:07-CV-02020-L, and
the need for someone to represent the Estate of Hill Jr. in
both proceedings. On January 10, 2018, the Probate Court
granted Keliher's application and appointed her as
Temporary Administrator of the Estate of Hill Jr.
April 24, 2018, Keliher filed her Motion to Substitute.
Keliher moves to substitute into this action, among other
things, to finalize the Settlement Agreement and Release
dated October 23, 2017 (the “Settlement
Agreement”) between Hill Jr. and Defendant First
Tennessee Bank, National Association (“FTB”). On
May 15, 2018, Defendant FTB filed its response to the Motion
to Substitute. FTB's Resp. (Doc. 53). In its response,
FTB recognizes that Keliher is the duly appointed Temporary
Administrator of Hill Jr.'s Estate and that the
“Probate Court has specifically authorized [her] to
carry out the parties' Settlement Agreement and finalize
the resolution of this lawsuit.” Id. at 1-2.
While reserving its right to object to the court's
initial determination that Hill Jr. had standing to bring the
claims asserted in this case, FTB does not oppose the Motion
Legal Standard - Federal Rule of Civil
25(a)(1) of the Federal Rules of Civil Procedure authorizes
the substitution of proper parties in the event of an
existing party's death while litigation is ongoing. It
provides as follows:
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.
Fed. R. Civ. P. 25(a)(1) (emphasis added). Under Rule
25(a)(1), the court must, therefore, inquire into whether:
(1) the claims pled are extinguished; (2) the motion is
timely; and (3) the person being substituted is the proper
party. Notably, Rule 25 “does not resolve the
question [of] what law of survival actions should be
applied. [It] simply describes the manner in which
parties are to be substituted in federal court once it is
determined that the applicable substantive law allows the
action to survive a party's death.” Robertson
v. Wegmann, 436 U.S. 584, 587 n.3 (1978) (alterations
and emphasis in original); see also 7C Charles
Alan Wright et al., Federal Practice and Procedure §
1952 (3d ed. 2017 supp). (“Rule 25 is procedural . .
. . Whether the death of a party extinguishes a claim for
or against the party is not a question of procedure. It is
a question of substance on which the state law ordinarily
previously explained, on January 2, 2018, counsel for Hill
Jr. filed a Suggestion of Death, stating, “on the
record, pursuant to Rule 25(a)(1) of the Federal Rules of
Civil Procedure, the death of [Hill Jr.], Defendant, on
December 2, 2017.” Statement Noting Death (Doc. 51).
Under Rule 25(a)(1), Keliher had ninety (90) days-until April
2, 2018-to move to substitute. See Fed. R. Civ. P.
25(a)(1). Keliher filed her Motion to Substitute on April 24,
2018. As more than the ninety days have passed since the
Suggestion of Death was filed, the court denies Keliher's
Motion to Substitute. See Fed. R. Civ. P. 25(a)(1)
(“[i]f 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.”).
previously recognized by the undersigned, however,
“[t]hough couched in mandatory terms, the Advisory
Committee Notes to Rule 25 indicate that the ninety-day
period may be extended” pursuant to Federal Rule of
Civil Procedure 6(b)(1). Yazdchi v. American Honda Fin.
Corp., 2006 WL 2456495, at *3 n.2 (N.D. Tex. Aug. 23,
2006) (Lindsay, J.) (citing Continental Bank,
N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir.1993)). Rule
(b) Extending Time.
(1) In General. When an act may or must be done within a
specified time, the court may, for good cause, extend the
(A) with or without motion or notice if the court acts, or if
a request is made, before the original time or its ...