Austin v. Salinas et al

RESPONSE to Motion re MOTION to Substitute Party

E.D. Tenn.August 9, 2018

1 4850-1870-8591 2902737-000015 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA AMIE AUSTIN, Plaintiff, v. JOSE SALINAS and TRANSPORTATION SERVICES, INC., Defendants. Civil Action No. 1:16-cv-00338 Collier/Steger JURY DEMAND DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR REVIVOR [DOC. 46], DEFENDANT’S MOTION TO DISMISS CLAIMS ASSERTED AGAINST JOSE SALINAS, AND MEMORANDUM OF LAW IN SUPPORT Comes Transportation Services, Inc. (“TSI”), by and through counsel, pursuant to Rules 25 and 12, Federal Rules of Civil Procedure, and Local Rule 7.1, and files its Response to Plaintiff’s Motion for Revivor [Doc. 46] and its Motion to Dismiss Claims Asserted Against Jose Salinas. For the reasons set forth herein, Plaintiff’s Motion for Revivor is due to be denied, and all claims asserted against Jose Salinas must be dismissed pursuant to Rule 25(a)(1), Federal Rules of Civil Procedure. I. Background Plaintiff filed the Complaint in this action in the Circuit Court of Hamilton County, Eleventh Judicial District of Tennessee, on July 19, 2016, Case No. 16C863 (the “Complaint”). [Doc. No. 1-1, Ex. A, pp. 5-7, Compl.]. Plaintiff named Jose Salinas (“Salinas”) and TSI as Defendants (collectively “Defendants”). On August 17, 2016, the action was removed from the Circuit Court of Hamilton County to this Court. [Doc. 1]. On September 7, 2016 TSI filed its Answer [Doc. 5] and on October 24, 2016 Salinas filed his Answer [Doc. 13]. Case 1:16-cv-00338-CHS Document 48 Filed 08/09/18 Page 1 of 4 PageID #: 243 2 4850-1870-8591 2902737-000015 Unfortunately, Salinas passed away on December 20, 2017, and on April 23, 2018, TSI filed a Notice of Death and attached the Certificate of Death issued by the Texas Department of State Health Services as Exhibit A to the Notice of Death. [Doc. 41]. On August 2, 2018, Plaintiff filed a Motion for Revivor requesting “an Order Reviving the Estate of Jose Salinas, Aaron Wells, Administrator for the Estate of Jose Salinas as the Defendant in this action.” [Doc. 46]. II. Plaintiff Failed to Comply with the Time Requirement of Rule 25(a)(1) Rule 25(a)(1) requires a motion for revivor or substitution to have been filed within 90 days after service of the statement noting Mr. Salinas’s death. Fed. R. Civ. P. 25(a)(1). Plaintiff’s Motion for Revivor was filed 101 days after TSI’s Notice of Death was filed and served on Plaintiff. [Doc. 41 and 46]. Specifically, Rule 25(a)(1) of the Federal Rules of Civil Procedure provides that: (a)(1) Substitution if the Claim is Not Extinguished. 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)1 (emphasis added). “Thus, under the Rule, absent timely substitution, dismissal as to the deceased party is required.” Baker v. Shelby County Gov., 2007 WL 2042453, at *2 (W.D. Tenn. July 12, 2007) (emphasis added)(citing Dubuc v. Green Oak Twp., 958 F. Supp 1231, 1240 (E.D. Mich. 1997)); see also Deal v. Polk County, Tenn., 2007 WL 1387918, at *11 (E.D. Tenn. May 8, 2007) (dismissal appropriate where no motion for substitution was filed within 90 days of service of suggestion of death); Wentz v. Best W. Int’l, 1 The 1963 Advisory Committee’s Notes establish that the 1963 amendments changed the Rule to start the time period upon service of a suggestion of death, instead of upon the actual death itself, but the requirement of dismissal was not changed. Case 1:16-cv-00338-CHS Document 48 Filed 08/09/18 Page 2 of 4 PageID #: 244 3 4850-1870-8591 2902737-000015 Inc., 2007 WL 869620, at *3 (E.D. Tenn. Mar. 20, 2007) (motion for substitution filed outside the ninety-day limit was untimely)). The facts are simple -- Plaintiff did not file a Motion for Revivor until 101 days after the filing and service of TSI’s Notice of Death. Plaintiff’s Motion for Revivor is untimely and due to be denied. III. Rule 25(a)(1) Mandates Dismissal of Claims Against Jose Salinas Due to Plaintiff’s failure to comply with the clearly stated ninety-day time requirement of Rule 25(a)(1), all claims asserted against Jose Salinas “must be dismissed.” Fed. R. Civ. P. 25(a)(1). Rule 25(a)(1) mandates that an action against a deceased party “must be dismissed if a motion to substitute is not filed within ninety days after service of a statement noting the death.” Neeley, at *7 (citing Fed. R. Civ. P. 25(a)(1)). See, e.g., Baker, Deal and Wentz, supra, and Neeley v. Grainger County Gov., 2017 WL 782897, at *7 (E.D. Tenn. Feb. 28, 2017), citing Rule 25(a)(1), Baker and Deal. CONCLUSION The denial of Plaintiff’s Motion for Revivor is necessary due to Plaintiff’s failure to comply with Rule 25(a)(1). Additionally, due to Plaintiff’s noncompliance, all claims asserted against Jose Salinas are due to be dismissed with prejudice. Case 1:16-cv-00338-CHS Document 48 Filed 08/09/18 Page 3 of 4 PageID #: 245 4 4850-1870-8591 2902737-000015 Respectfully submitted, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC By: s/K. Stephen Powers K. Stephen Powers, #007088 Travis B. Holly, #023289 633 Chestnut Street, Suite 1900 Chattanooga, TN 37450 (423) 756-2010 (423) 752-9518 (fax) spowers@bakerdonelson.com tholly@bakerdonelson.com Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that on this 9th day of August, 2018, a copy of the foregoing was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. Mail. Parties may access this filing through the Court’s electronic filing system. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC 633 Chestnut Street, Suite 1900 Chattanooga, TN 37450 By: s/K. Stephen Powers cc: Ronald J. Berke, Esq. Berke, Berke, & Berke 420 Frazier Avenue P.O. Box 4747 Chattanooga, TN 37405 Attorneys for Plaintiff Aaron Wells, Esq. 633 Chestnut Street, Suite 700 Chattanooga, TN 37450 (423) 756-5051 Administrator ad litem, Estate of Jose Salinas Case 1:16-cv-00338-CHS Document 48 Filed 08/09/18 Page 4 of 4 PageID #: 246