Breaux v. ASC Industries
298 F.R.D. 339
N.D. Tex.2013Background
- Breaux sued ASC for age discrimination in May 2012; counsel were Menes and L. A. Oglesby.
- Breaux died May 21, 2013; Oglesby filed a "Statement Noting Party’s Death" on May 24, 2013 (served on defense counsel May 22, 2013).
- Rule 25(a)(1) provides a 90-day window to move for substitution of a successor after service of a statement noting death; no substitution motion was filed within 90 days.
- On September 3, 2013 the court dismissed the action under Rule 25(a)(1) for failure to move for substitution within 90 days; final judgment entered that day.
- After dismissal, Keva Nuckols Sampson (Breaux’s daughter) became independent executrix (probate Aug. 20, 2013) and, through Oglesby, moved to alter/amend the dismissal (Oct. 1, 2013) and separately moved to be substituted as plaintiff (Oct. 15, 2013).
- The court held a hearing (Oct. 29, 2013), received testimony about who knew what and when, and denied both motions, concluding the 90-day period had been triggered and no timely extension was sought.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service required by Rule 25(a)(3) on the personal representative must occur to start the 90‑day substitution clock | The 90‑day period never began because the statement noting death was not served on the nonparty executrix as required by Rule 25(a)(3) | The plaintiff’s counsel (Oglesby) filed the suggestion of death and had authority/notice; substitution could and should have been sought within 90 days | Court held the 90‑day period was triggered by the suggestion of death filed by counsel and by the facts showing the executrix (and counsel) had notice; dismissal for failure to move within 90 days affirmed |
| Whether substitution should be allowed out‑of‑time | Sampson had been appointed executrix and filed for substitution reasonably given probate circumstances | Defendant opposed substitution as untimely and argued counsel for estate had opportunity to act | Court denied substitution as untimely; no Rule 6(b) motion for extension was filed, so late substitution not permitted |
Key Cases Cited
- Ransom v. Brennan, 437 F.2d 513 (5th Cir. 1971) (attorney’s suggestion of death can start Rule 25 procedures; Rule 4 service on nonparty is required to acquire in personam jurisdiction over successor)
- Ray v. Koester, 85 Fed.Appx. 983 (5th Cir. 2004) (suggestion of death on the record is sufficient to begin the 90‑day Rule 25 period)
- Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467 (2d Cir. 1998) (failure to move for enlargement of time under Rule 6(b) to permit late substitution constitutes a waiver)
- Boyd v. El Paso Natural Gas Co., 126 F.R.D. 699 (D.N.M. 1989) (denial of extension to substitute where counsel misread Rule 25; excusable neglect not found)