R. DAVID PROCTOR, District Judge.
This matter is before the court on four pending motions (Docs. # 223, 225, 228, 229), all filed by Plaintiff. Three of the Motions (Docs. # 223, 225, 228) were filed in response to the Defendant's Suggestion of Death (Doc. # 207). The court construes Plaintiff's fourth motion, titled "Written Objections" to the Court's Order (Doc. # 229), as a Motion to Reconsider its Order denying Plaintiff's previous Motion to Reconsider (Docs. # 210, 217).
After careful consideration, each of Plaintiff's Motions (Docs. # 223, 225, 228, 229) is due to be denied.
On July 11, 2019, Defendant's filed a Suggestion of Death of Defendant Timothy Brown (Doc. #207). The Motion stated that Timothy Durand Brown passed away on November 14, 2018. (Id.) Defendant Timothy Brown's photograph and obituary were attached to Motion. (Docs. # 207, 207-1). In response, the court held a status conference on August 28, 2019. (Docs. # 216, 230).
At the status conference, Plaintiff repeatedly asserted that the Timothy Brown pictured in the obituary attached to Defendant's Suggestion of Death (Doc. # 207-1) was not the "correct" or "right" Timothy Brown. (Doc. # 230 at 5, 6, 9, 11). Instead, Plaintiff stated the person who allegedly violated his rights was a different Timothy Brown. (Id.). Plaintiff intermittently referred to the person who allegedly violated his rights as "Brown," "T. Brown," and "Sargent Timothy Brown". (Id.) The court explained to Plaintiff, that based on his representations, Defendant Timothy Brown was an improper party and should be dismissed. (Id. at 5-6). By extension, the court explained further, Defendant Timothy Brown's estate was not an appropriate party. (Id.) Defense counsel clarified that there was only one Timothy Brown employed by the Birmingham City Jail at the time of Plaintiff's alleged civil rights violations.
Once again, the court explained that Plaintiff would not be able to substitute Defendant Timothy Brown's estate if he was not a proper party to this action. (Id. at 14-16). In response, during the hearing, Plaintiff abruptly (and without any explanation) changed course. (Id.) He declared that the man in the obituary photo was, in fact, the "correct" Timothy Brown after all. (Id. at 16-19). When the court asked Plaintiff to explain his sudden backtracking, Plaintiff did not have an explanation.
The court warned Plaintiff that, based on his previous statements, if he substituted the estate of Defendant Timothy Brown, Defendant's could present Plaintiff's statements to the jury at trial. (Id. at 21). Further, the court warned Plaintiff that if Brown were added, and subsequently prevailed at trial, the personal representative of Defendant Timothy Brown's estate could pursue a claim against Plaintiff for litigating in bad faith. (Id.).
In response, Plaintiff stated that he was trying to retain a local attorney, Mr. David Gespass, to help him with issues (such as these) at trial.
Prior to the September 23 conference, Plaintiff filed two motions. (Docs. # 223, 225). First, Plaintiff filed a Motion to Substitute Defendant Timothy Brown's estate as a party. (Doc. # 223). Second, Plaintiff filed a Motion to Amend the Motion to Substitute Defendant Timothy Brown's Estate. (Doc. # 225). In response, Defendants filed Objections to Plaintiff's Motion for Substitution. (Doc. # 224). According to Defendants, "[Plaintiff's] [M]otion is frivolous, improper, and a waste of judicial time. [Plaintiff] has filed a pleading that contradicts his earlier representations to the Court." (Doc. # 224 at 2-3). Additionally, counsel for Defendant's provided that "[u]pon information and belief, Defendant Timothy Brown does not have an estate open." (Id. at 2, n. 3).
At the September 23, 3019 status conference, Plaintiff stated that he was not able to consult with an attorney, including Mr. Gespass. According to Plaintiff, Mr. Gespass has a conflict that prevents him from trying the case. Plaintiff also consulted with several of Mr. Gespass's colleagues, but they were either unable or unwilling to represent him. Despite his lack of representation, Plaintiff stated that he intendeds to pursue a claim against the estate of Defendant Timothy Brown. The court reminded Plaintiff of the ramifications of substituting Defendant Timothy Brown's estate after his statements at the August 28, 2019 status conference. Plaintiff acknowledged that he understood.
At the conclusion of the status conference, Plaintiff was ordered to notify the court, on or before October 1, 2019, whether he intended to pursue a claim against Defendant Timothy Brown's estate. (See Doc. # 226). On September 27, 2019, Plaintiff filed two motions. First, Plaintiff filed a Motion to Strike (Doc. # 228), in which he notified the court that he intends to pursue a claim against Defendant Timothy Brown's estate. In the same Motion, Plaintiff asks the court to strike his August 28, 2019 statements about Defendant Timothy Brown not being the "correct" or "right" Timothy Brown. (Id.). Second, Plaintiff filed Written Objections to the court's Order on Plaintiff's Motion to Reconsider. (Docs. # 217, 229). The court construes Plaintiff's "Written Objections" as a Motion to Reconsider Plaintiff's previous Motion to Reconsider the court's Order granting summary judgment to the City of Birmingham, Deidra Daniels, Emantic Bradford, and Freida Taylor, as well as remanding count nine to state court. (See Docs. # 204, 205, 210, 217, 229). Stated differently, Plaintiff's "Written Objections" are a Motion to Reconsider the court's Order on Plaintiff's previous Motion to Reconsider.
The court addresses each of Plaintiff's Motions, in turn. (Docs. # 223, 225, 228).
In three of Plaintiff's motions — his Motion to Substitute, Motion to Amend the Motion for Substitution, and Motion to Strike — Plaintiff asks the court to substitute Defendant Timothy Brown's estate for Defendant Timothy Brown. (Docs. # 223, 225, 228). Because Plaintiff is appearing pro se and because this area of the law is far from clear, the court first discusses the Rule 25 procedural hurdles a party must clear to substitute an estate for a deceased party.
According to Federal Rule of Civil Procedure 25(a):
FED. R. CIV. 25. In sum, Rule 25 contemplates: (1) survival of a claim; (2) a notification or suggestion of death; and (3) a motion to substitute. All three of these prongs are governed by strict procedural requirements. Schmidt v. Merrill Lynch Tr. Co., No. 507-CV-382-OC-10GRJ, 2008 WL 2694891, at *3 (M.D. Fla. June 30, 2008) ("Strict adherence to the procedural formalities is required under Rule 25(a).").
A prerequisite to a Rule 25(a) analysis is a determination of whether the claim survives death. Plaintiff has not argued or provided authority regarding the survival of his claim against Defendant Timothy Brown's estate. However, as Plaintiff is pro se, the court assumes the task of determining whether Plaintiff's claims survive Defendant Timothy Brown's death.
Rule 25(a) is a procedural rule only; therefore, the determination of whether a claim survives death is a function of the substantive law governing the claims and defenses in the action. Generally, if state law forms the basis of the underlying claim, state law governs the claim. See Estate of Gilliam ex rel. Waldroup v. City of Prattville, 639 F.3d 1041, 1045-46 (11th Cir. 2011). If the claim is based on a federal question, federal substantive law is controlling. Id. The exception to the general rule provides that the survival of claims under a federal civil rights statute (such as the statute at issue here, 42 U.S.C. § 1983) is dependent on the law of the forum state. Id. ("By its terms, 42 U.S.C. § 1983 does not provide for the survival of civil rights actions. Due to this `deficiency' in the statute, the survivorship of civil rights actions is governed by 42 U.S.C. § 1988(a)[]" and "[t]hat statute generally directs that, where federal law is `deficient,' the state law of the forum applies as long as it is `not inconsistent with the Constitution and the laws of the United States.'") (quoting Robertson v. Wegmann, 436 U.S. 584, 588-89 (1978)). In the instant case, the applicable state law is the Alabama survival statute. ALA. CODE § 6-5-462.
According the Alabama survival statute:
Id. The survival statute allows the continuation of an action brought prior to a tortfeasor's death. Id. Recovery under the survival statute is based on compensatory considerations. Generally, punitive damages are not recoverable against a deceased tortfeasors estate.
In Count Three of Plaintiff's Second Amended Complaint, Plaintiff alleges that Defendant Timothy Brown "left [P]laintiff naked without reason, maliciously [] for the purpose of causing him emotional harm" and "[was] aware of plaintiff's fragile condition at least by virtue of his being in a suicide watch cell." (Doc. # 74 at 12, ¶ 42-43). As such, Plaintiff, seeks the following relief: (1) "[a] judgment for such compensatory and punitive damages as a jury may award;" (2) "[p][ursuant to 42 U.S.C. § 1988, his costs and any attorneys fees he may accrue; and" (3) "[s]uch other, further and different relief as to which he may be entitled." (Id. at 12 ¶¶ 41-1, 41-2, 41-3).
Although Plaintiff's complaint does not explicitly state a legal basis for his claim against Defendant Timothy Brown, the court interprets Count Three of Plaintiff's Complaint as alleging that Defendant Timothy Brown exercised deliberate indifference to Plaintiff's serious Medical needs, in violation of the Eighth Amendment.
"Filing a suggestion of death on the record has a very narrow role-it commences the 90 day period within which a motion to substitution must be filed." Schmidt, 2008 WL 2694891, at *2-3. As a threshold matter, a valid suggestion of death under Rule 25(a) requires two actions. First, a formal statement of death must be placed "on the record" by one with the authority to do so. FED. R. CIV. 25(a)(1). "While Rule 25(a) does not explicitly specify who may properly serve the suggestion of death, courts have construed the rule so as to allow the suggestion to be filed by any of the same persons who are permitted to move for substitution."
Second, the statement of death must be served pursuant to Rule 25(a)(3). FED. R. CIV. P. 25(a)(3). Rule 23(a)(3) requires that the "[m]otion 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 . . . ." Id. (emphasis added). A common error in service occurs when the party filing the suggestion of death merely serves the attorney of the decedent and does not serve the non-party successors or representatives of the deceased. See FED. R CIV. P. 25(a). This strict procedural requirement is necessary to alert interested non-parties to the existence of the suit.
As previously stated, filing and serving a suggestion of death on the record commences a 90-day period within which a motion for substitution must be filed.
Here, Defendant's fulfilled only one of the two Rule 25(a) procedural requirements. Defendant's properly filed a Suggestion of Death of Defendant Timothy Brown on July 11, 2019. (Doc. # 207). The Motion served the purpose of notifying the court and the parties that Defendant Brown passed away on November 14, 2018. (Id. at 1). But, Defendant's failed to properly execute service of process. The Motion does not indicate, as Rule 25(a) requires, that the suggestion of death was "served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4." FED. R. CIV. P. 23(a)(3). The certificate of service attached to the Motion indicates that the Motion was served only on Plaintiff's Attorney, Ted Pearson.
Having said all that, the court acknowledges that "Rule 25(a) is not meant to be used as a procedural mechanism to bar . . . otherwise meritorious actions." Schmidt, 2008 WL 2694891, at *2 (internal citations and quotations omitted). "Instead, its driving purpose is to ensure that all those having a legal interest in the pending suit are aware of the party's death and are alerted to act to preserve their respective rights." Id. A suggestion of death is not a prerequisite to filing a motion for substitution. See FED. R. CIV. P. 25(a)(1)-(3). Rather, a properly filed and served suggestion of death is required for the court to dismiss an action pursuant to Rule 25(a) after the 90-day waiting period has expired. Schmidt, 2008 WL 2694891, at *2. The claim may proceed even if the suggestion of death was improperly served, so long as a party follows the procedural requirements to substitute a decedent's estate as a party. Id.
Because Defendant's Suggestion of Death was not served on non-party successors or representatives, the 90-day waiting period was not triggered. However, the Suggestion of Death did place the court and Plaintiff on notice that Defendant Timothy Brown is deceased. And Plaintiff has asked the court to substitute Defendant's Timothy Brown's estate. Therefore, the court will proceed to the second step of the Rule 25(a) analysis.
The requirements for filing and serving a motion to substitute are similar to the requirements for filing and serving a suggestion of death. See FED. R. CIV. P. 25(a)(3) ("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. . ."). A motion for substitution must identify the proper party for service and specify the grounds for substitution.
As previously established, the Suggestion of Death filed by Defendant's was not served pursuant to the requirements in Rule 25(a); therefore, the 90-day waiting period was not triggered. Even so, Plaintiff filed several Motions seeking to substitute the estate of Defendant Timothy Brown. (See Docs. # 223, 225, 228). However, Plaintiff's Motions to Substitute fail for the same reason the Defendant's Suggestion of Death failed to trigger the 90-day waiting period, Plaintiff did not serve the Motion to Substitute on the requisite non-parties as required by Rule 25(a)(3). The certificate of service attached to each of Plaintiff's indicate that only Defense counsel was served. (Docs. # 223 at 2-3; 225 at 6-7; 228 at 4).
Indeed, there is no indication in Plaintiff's filing, or otherwise, that suggests Plaintiff proffered service on the requisite non-parties. Moreover, there is no indication that Defendant Timothy Brown's heirs (if any) or personal representative (if any) received notice of the pending action. Because the "driving purpose" of a Rule 25(a) motion is to "ensure that all those having a legal interest in the pending suit are aware of the party's death and are alerted to act to preserve their respective rights[,]" Plaintiff's Motions for Substitution are due to be denied.
Next, the court addresses Plaintiff's Motions to Strike (Docs. # 225, 228). Although Plaintiff does not cite to the Federal Rules of Civil Procedure, the court construes his requests as Rule 12(f) Motions to Strike. Before beginning the Rule 12(f)) analysis, it is necessary for the court to provide an overview of Plaintiff's Motions.
In Plaintiff's first Motion, Plaintiff states that he was "confused (in good faith) at the August 28, 2019 status conference, when he stated that that Defendant Timothy Brown was not the "correct" or "right" Timothy Brown. (Doc. # 225 at 2). Although not titled "Motion to Strike,"
In Plaintiff's second Motion to Strike, he states "[t]hat[] [he] pleaded an insufficient defense based on the photo of said deceased Defendant Timothy Brown, and incorrectly stated that the picture of Timothy Brown was not the correct [Defendant Timothy] Brown . . . ." (Doc. # 228 at 2). Plaintiff concludes the Motion by stating "the evidence have [sic] shown that the deceased Timothy Brown is the correct Timothy Brown that were [sic] set for the March 2019[] trial." Id. Although it is unclear if Rule 12(f) applies in this instance, the appropriate analysis for Plaintiff's Motions is analogous to that of a Motion to Strike.
According to Rule 12(f), "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: "(1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading." FED. R. CIV. P. 12(f). Generally, courts disfavor motions to strike because striking a portion of a pleading is a drastic remedy and is frequently used as a dilatory tactic. Drew v. Quest Diagnostics, 992 F.Supp.2d 1177, 1182 (N.D. Ala. 2014) ("A motion to strike is a drastic remedy[,] which is disfavored by the courts and will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.") (internal citations and quotations omitted).
Here, Plaintiff requests relief that is likely not available under Rule 12(f). The text of Rule 12(f) provides that a Motion to Strike applies only to pleadings
Undoubtedly, Plaintiff's statements at the August 28 status conference and his subsequent Motions are not "pleadings" under Rule 7. Even if the court disregards the Rule 12(f) "pleading" requirement, Plaintiff's Motions still fail under a proper analysis. To succeed on a motion to strike, Plaintiff must show that the challenged matter is "redundant, immaterial, impertinent, [] scandalous" or a defense that is legally insufficient. FED. R. CIV. P. 12(f). Upon examination of the record, it is clear that Plaintiff's statements at the August 28, 2019 status conference do not fit in any of these categories. Id. To the contrary, Plaintiff's statements are relevant, material, and potentially dispositive regarding his allegations against Defendant Timothy Brown.
The underlying function of a Rule 12(f) motion is to avoid the needless expenditure of time and money that arises from litigating issues that are not probative of the underlying issues in the case. Here, Plaintiff's statements are probative of his claims against Defendant Timothy Brown, and potentially, Defendant Timothy Brown's Estate. Therefore, Defendant's Motions to Strike (Docs. # 225, 229) are due to be denied.
Finally, the court addresses Plaintiff's "Written Objections" which the court construes as a Motion to Reconsider. (Doc. # 229). In his "Written Objections" Plaintiff requests that the court reconsider its Order on his previous Motion to Reconsider. (Doc. # 217). Plaintiff's previous Motion to Reconsider asked the court to reconsider its Order granting Summary Judgment to the City of Birmingham, Deidra Daniels, Emantic Bradford, and Freida Taylor, as well as remanding count nine to state court. (See Docs. # 118, 204, 205, 210). Essentially, Plaintiff's "Written Objections" are a Motion to Reconsider the same issues raised in his previous Motion to Reconsider.
The Federal Rules of Civil Procedure do not specifically authorize motions for reconsideration, but they are common enough in practice. However, "[i]n the interests of finality and conservation of scarce judicial resources, reconsideration of an order is an extraordinary remedy and is employed sparingly." Gougler v. Sirius Products, Inc., 370 F.Supp.2d 1185, 1189 (S.D. Ala. 2005)); see also Spellman v. Haley, 2004 WL 866837, *2 (M.D. Ala. 2002). Although this court has discretion to reconsider its orders, motions for reconsideration are disfavored. See, e.g., Iberiabank v. Case Construction, LLC, 2015 WL 5457889, *2 (S.D. Ala. Sept. 16, 2015).
"Far too often, litigants operate under the flawed assumption that any adverse ruling ... confers upon them license to move for reconsideration, vacatur, alteration or amendment as a matter of course, and to utilize that motion as a platform to criticize the judge's reasoning, to relitigate issues that have already been decided, to champion new arguments that could have been made before, and otherwise to attempt a "do-over" to erase a disappointing outcome. This is improper." Garrett v. Stanton, 2010 WL 320492, *2 (S.D. Ala. 2010); see Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005) (finding a motion to reconsider may not be used to "relitigate old matters, raise argument[s] or present evidence that could have been raised prior to the entry of judgment."); see also Hughes v. Stryker Sales Corp., 2010 WL 2608957, *2 (S.D. Ala. June 28, 2010) (rejecting notion that motions to reconsider "are appropriate whenever the losing party thinks the District Court got it wrong"). Motions to reconsider "cannot be brought solely to relitigate issues already raised." Harris v. Corrections Corp. of America, 2011 WL 2672553, *1 (11th Cir. 2011).
Here, Plaintiff is "operat[ing] under the flawed assumption that any adverse ruling ... confers upon [him] [a] license to move for reconsideration . . . ." Garrett, 2010 WL 320492 at *2. Plaintiff is using his "Written Objections" as means to relitigate issues the court has twice considered and twice rejected. First, the court addressed these issues in its summary judgment Order and Memorandum Opinion. (Docs. # 204, 205). Second, the court addressed these issues in its Order in response to Plaintiff's first "Written Objections." (Docs. # 210, 217).
Plaintiff's third bite at the apple does not raise any new issues or present any new evidence. Rather, Plaintiff's "Written Objections" merely rehash his argument "that the evidence clearly shows" the court erred in granting summary judgment in favor of the City of Birmingham, Deidra Daniels, Emantic Bradford, and Freida Taylor. Because the court has addressed the issues raised in Plaintiff's "Written Objections" ad nauseum, Plaintiff's Motion is due to be denied. Further, Plaintiff is cautioned that if he continues to file frivolous Motions, the court may exercise its power to impose sanctions.
For the reasons stated above, Plaintiff's Motions (Docs. # 223, 225, 228, 229) are due to be denied.
