United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION A ORER
LAKE SENIOR UNITED STATES DISTRICT JUDGE
a Fair Credit Reporting Act ("FCR") action brought
by plaintiff Louise Irvin-Jones ("Plaintiff")
against defendants Equifax Information Services LLC; Experian
Information Solutions, Inc.; Wells Fargo Bank, N.A.; Bank of
America, N.A.; and Trans Union LLC ("Defendants").
Pending before the court is movant Mark Sanders'
Plaintiff's Motion to Substitute Party
("Sanders' Motion") (Docket Entry No. 59). For
the reasons explained below, Sanders' Motion will be
granted in part and denied in part.
Factual and Procedural Background
Plaintiff filed her Complaint under the Fair Credit Reporting
Act against Defendants on September 11, 2018. The Complaint
seeks actual and punitive damages from Defendants for alleged
violations of the FCRA. Plaintiff died on June 21,
2019. Plaintiff's son, Mark Sanders
("Sanders"), moved to substitute himself as the
plaintiff under Federal Rule of Civil Procedure 25(a) (1)
support his motion, Sanders submitted evidence that
Plaintiff's Will named him executor of the estate and
that he is trustee of the trust that is the estate's
principal devisee. Defendants filed a joint response opposing
Sanders' Motion, contending that Sanders is not a
"proper party" for substitution under Rule 25(a)
(1) and that Plaintiff's claims for punitive damages
under the FCRA do not survive her death.
Rule 25 "[i] f a party dies and the claim is not
extinguished, the court may order the substitution of the
proper party. A motion for substitution may be made by any
party or by the decedent's successor or
representative." Fed. R. Ci v. P. 25(a) (1) . The
parties disagree as to whether Sanders qualifies as a proper
party for substitution. Defendants contend that state law
determines who qualifies as a proper party and argue that
Sanders cannot be a successor or representative of the
Plaintiff absent evidence a Texas court has appointed him
such or that probate has been opened. Sanders contends that
state law does not control determination of proper parties
under Rule 25 and, even if it does, Sanders' status as
trustee of the trust named as devisee in Plaintiff's Will
qualifies him under Texas law. Assuming Sanders can be
substituted, the parties also disagree whether
Plaintiff's punitive damages claims survived her death.
Proper Party Under Rule 25(a) (1)
party dies, Rule 25 (a) (1) allows the court to order
substitution of a proper party but does not specify which
parties are proper. Fed.R.Civ.P. 25(a) (1). The rule is
procedural, and federal courts must apply federal rules, not
state law, to determine proper procedure for substitution
following a party's death. In re Baycol Products
Litigation, 616 F.3d 778, 785 (8th Cir. 2010). State law
may govern the substantive question of who may qualify as a
proper party. Id. But Rule 25 intends liberal
substitution to be permitted and does not require the
plaintiff to invoke state machinery to produce a
representative of the estate. McSurely v. McClellan,
753 F.2d 88, 98 (D.C. Cir. 1985). The proper inquiry is
whether the party to be substituted could qualify under state
law to be the plaintiff's successor or representative,
not whether the party has been appointed or recognized by the
state. See In re Baycol, 616 F.3d at 787-88
(explaining that state substantive law defines who may be a
party's successor, but state procedures do not control in
federal court). For instance, a person named executor in a
will may be a proper party under Rule 25(a) (1) even if the
will has not been probated. Id. at 784.
contention that Sanders cannot be substituted without
producing a signed order from a probate court designating him
as Plaintiff's representative therefore fails. Federal
courts have uniformly held that Rule 25(a) (1) permits
substitution without requiring state machinery such as the
probating of a will. E.g., In re Baycol,
616 F.3d at 784; McSurely, 753 F.2d at 98; Kilgo
v. Bowman Transportation, Inc., 87 F.R.D. 26,
27 (N.D.Ga. 1980). Sanders therefore need not be named
Plaintiff's representative by a probate court to be
substituted as the proper party in this action. The only
relevant question under state law is whether he could be
named as representative.
Texas law a person named executor in a decedent's will is
qualified with highest priority to serve as the estate's
representative. Tex. Est. Code § 304.00l(a)(1).
Plaintiff's Will contains a clause appointing Sanders as
executor.  Texas also permits the principal devisee
of the decedent to become the estate's representative.
Tex. Est. Code § 304.00l(a) (3). Plaintiff's Will
distributes all of the estate's property, with the
exception of any S-corporation stock, to a trust of which
Sanders is trustee. This evidence establishes that Sanders is
entitled to be the representative or successor of Plaintiff
under Texas law. Accordingly, Sanders may be substituted as
the plaintiff in this lawsuit under Rule 25(a) (1).
Survival of Punitive Damages Claims
may only be substituted under Rule 25(a) (1) for claims not
extinguished by the plaintiff's death. Fed.R.Civ.P. 25
(a) (1). Plaintiff's Complaint alleges claims for
punitive damages under the FCRA. Defendants contend that the
claims for punitive damages are penal and therefore do not
survive under federal common law. Sanders responds that the
FCRA is a remedial statute, and that claims under the FCRA,
including the punitive damages provisions, therefore survive.
otherwise provided by statute, survival of a federal claim is
a matter of federal common law. James v. Home
Construction Co. of Mobile, Inc., 621 F.2d 727, 729 (5th
Cir. 1980). Because the FCRA is silent as to the survival of
the civil claims it creates, the issue must be decided based
on federal common law. See 15 U.S.C. §§
1681n, 16810; James, 621 F.2d at 729. Under federal
common law remedial actions survive the death of the
plaintiff, while penal actions do not. Wheeler v. City of
Santa Clara, 894 F.3d 1046, 1056-57 (9th Cir. 2018);
James, 621 F.2d. at 730. "A remedial action is
one that compensates an individual for specific harm
suffered, while a penal action imposes damages upon the
defendant for a general wrong to the public." United
States v. NEC Corp., 11 F.3d 136, 137 (11th Cir. 1993).
several other federal statutes, however, the FCR serves both
remedial and penal purposes. Aetna Casualty &
Surety Co. v. Sunshine Corp.,74 F.3d 685,
688 (6th Cir. 1996). The availability of a civil claim for
actual damages for noncompliance with the FCRA has a clear
remedial purpose. See 15 U.S.C. §§
1681n(a) (1) (A), 16810 (a) (1). But the punitive damages
available for willful violations under § 1681n serve to
punish and deter. See Id. § 1681n(a) (2);
Northrop v. Hoffman of Simsbury, Inc., 12 Fed.Appx.
44, 51 (2d Cir. 2001) ("The purpose of punitive damages
under FCR . . . is deterrence."). For these reasons, at
least one district court has held punitive damages under the
FCRA are penal and do not survive a plaintiff's death.
Beaudry v. TeleCheck Services, Inc., No. 3:07-0842,
2016 WL 11398115 (M.D. Tenn. Sept. 29, 2016), at *16. Several
district courts have held that the remedy of punitive damages
or analogous penal damages provisions in other remedial
statutes do not survive the plaintiff's death. See,
e.g., Fulk v. Norfolk Southern Railway Co., 35
F.Supp.3d 749, 764 (M.D. N.C. 2014) (dismissing the punitive
damages portion of an otherwise remedial Federal Railroad
Safety Act retaliation claim); E.E.O.C. v.
Timeless Investments, Inc.,734 F.Supp.2d 1035, 1056-57
(E.D. Ca. 2010) (dismissing a liquidated damages portion of
an otherwise remedial ADEA claim); Kettner v. Compass
Group USA, Inc.,570 F.Supp.2d 1121, 1134 (D. Minn.
2008) (dismissing liquidated damages portions of otherwise
remedial ADA and Rehabilitation Act claims); Medrano v.
MCDR, Inc.,366 F.Supp.2d 625, 635 (W.D. Tenn. ...