Gustavo Lizarazo v. Miami-Dade Corrections and Rehabilitation Department , 878 F.3d 1008 ( 2017 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12280
Non-Argument Calendar
________________________
D.C. Docket No. 1:16-cv-20558-UU
GUSTAVO LIZARAZO,
Plaintiff-Appellant,
versus
MIAMI-DADE CORRECTIONS AND REHABILITATION DEPARTMENT,
CONRAD GREAVES, JR.,
in his individual capacity,
JEFFRY MONTEALEGRE,
in his individual capacity,
CALVIN HOWARD,
in his individual capacity,
SAMUEL MENARD,
in his individual capacity, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 29, 2017)
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Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.
MARTIN, Circuit Judge:
Gustavo Antonio Lizarazo, acting as the personal representative for the
estate of Gustavo Adolfo Lizarazo, appeals the denial of his Motion for Extension
of Stay of Proceedings and Motion to Reopen Case and Substitute Plaintiff. 1 Mr.
Lizarazo says the District Court was wrong in finding his motions untimely. After
careful review, we reverse and remand for further proceedings.
I.
On June 8, 2012, Gustavo Adolfo Lizarazo was arrested. While he was
detained, Mr. Lizarazo alleges that a number of officers “repeatedly kicked, struck,
and punched” him in the face and abdomen, resulting in a fractured right orbital
socket and exploded orbital floor. In 2016, Mr. Lizarazo brought suit against the
officers he says attacked him, Miami-Dade County, and the director of the Miami-
Dade Corrections and Rehabilitation Department (“MDCR”). 2
1
The Motion for Extension of Stay was made by “Gustavo Lizarazo (posthumously through
counsel).” The Motion to Reopen Case and Substitute Plaintiff was made by “Gustavo Antonio
Lizarazo, as anticipated Personal Representative of the Estate of Gustavo Adolfo Lizarazo, by
and through undersigned counsel.” And this appeal was “made on behalf of the substitution
Plaintiff, to the extent permitted by the Federal Rules of Civil Procedure.” For simplicity, we
will refer to all claims as made by Mr. Lizarazo.
2
The District Court dismissed all of Mr. Lizarazo’s claims against the county and the MDCR
director, as well as his gross negligence claims against the officers. Mr. Lizarazo also appealed
those dismissals to this Court, but we dismissed those claims for lack of jurisdiction in a separate
order.
2
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On November 17, 2016, Mr. Lizarazo died. The next day, his attorney filed
a Joint Motion for Stay of Proceedings Due to Death of Plaintiff. The motion
noted that because Mr. Lizarazo had “passed away less than twenty-four hours ago,
counsel [did] not yet have information as to the appropriate substituted party.” In
order to substitute a personal representative of Mr. Lizarazo’s estate, the motion
requested a ninety-day stay. The parties submitted a draft order, which they
described as “consistent with the procedures of Rule 25 of the Federal Rules of
Civil Procedure.”
Federal Rule of Civil Procedure 25 allows for substitution in the event that a
party dies. The rule further states: “If the motion [for substitution] 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). Thus, to start
Rule 25’s ninety-day clock, a suggestion of death must be filed with the court and
served on a personal representative of the deceased party. On November 22, 2016,
the defendants filed a Suggestion on Record of Plaintiff’s Death. And on
November 29, the defendants served Mr. Lizarazo’s father, one of the people they
anticipated might serve as his personal representative, with that notice. If the Rule
25 ninety-day period began to run when Mr. Lizarazo’s father was served, it would
have expired February 27, 2017.
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On December 29, 2016, the District Court entered an order granting a
ninety-day stay. The court required Mr. Lizarazo’s attorney to file reports every
thirty days on the status of the probate proceedings, and to notify the court within
five days of the appointment of the personal representative. The order closed the
case for administrative purposes and said it would be reopened “if a proper motion
is made within 90 days hereof.” Based on the date the order was filed, the stay
would have expired on March 29, 2017.
Mr. Lizarazo’s attorney filed monthly status reports, as required by the
District Court’s order. In the January 27 report, Mr. Lizarazo’s attorney told the
court that the family had made a “prompt request for a death certificate” and would
soon be meeting with probate counsel to finalize filings, “pending receipt of the
death certificate.” In the February 24 report, Mr. Lizarazo’s attorney reported that
the family had only recently received the death certificate, and probate counsel had
a hearing date of March 30. Because the court’s ninety-day stay expired just
before the hearing was scheduled, probate counsel was requesting an earlier
hearing date.
On March 13, Mr. Lizarazo’s attorney filed a motion to extend the stay. He
said that probate counsel had not been able to get an earlier hearing date. Because
the hearing to appoint a representative for Mr. Lizarazo’s estate would take place
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just after the court’s ninety-day stay expired, Mr. Lizarazo’s attorney requested a
seven-day extension in order to file his motion to substitute parties.
Defendants opposed the seven-day extension. They argued the text of Rule
25(a)(1) required the court to dismiss an action if a motion for substitution had not
been made within ninety days of service of the Suggestion of Death on a nonparty
successor or representative. And because the defendants served Mr. Lizarazo’s
father on November 29, 2016, they argued that the ninety-day period had already
expired. According to the defendants, the court’s ninety-day stay order did not
extend this deadline.
On March 28, 2017, Mr. Lizarazo’s attorney filed a motion to reopen the
case and substitute Mr. Lizarazo’s father as plaintiff. The motion noted that Mr.
Lizarazo’s father had not yet been formally appointed personal representative, but
that the motion was “being filed in an abundance of caution before the expiration
of the stay.” Mr. Lizarazo’s father was appointed administrator of his son’s estate
on April 3. Mr. Lizarazo’s attorney filed the Letters of Administration with the
court on April 5.
On April 14, the District Court denied both the motion to extend the stay, as
well as the motion to reopen the case and substitute plaintiff. The court relied on
the language of Rule 25: “Rule 25(a)(1) explicitly states that if the motion is not
made within ninety (90) days after service of a statement noting the death, the
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action must be dismissed. Such language is mandatory, not discretionary.” The
court agreed with the defendants that the ninety-day period under Rule 25 started
the day Mr. Lizarazo’s father was served with the Suggestion of Death, and found
that substitution therefore had to happen by February 29. 3 The District Court also
found that Mr. Lizarazo’s failure to meet the February deadline was not due to
“excusable neglect,” which would have allowed the court to consider the untimely
motions, and therefore “the Court must dismiss this action.” The District Court
denied the motion to extend the stay as moot.
II.
We review de novo a district court’s interpretation of the Federal Rules of
Civil Procedure. Vencor Hosps., Inc. v. Standard Life & Accident Ins. Co., 279
F.3d 1306, 1308 (11th Cir. 2002). We review for abuse of discretion a district
court’s denial of motions for substitution and for extension of time. See In re
Engle Cases, 767 F.3d 1082, 1109 (11th Cir. 2014); Advanced Estimating Sys.,
Inc. v. Riney, 77 F.3d 1322, 1325 (11th Cir. 1996) (per curiam). “[A]pplication of
an incorrect legal standard is an abuse of discretion.” Advanced Estimating Sys.,
Inc., 77 F.3d at 1325.
Federal Rule of Civil Procedure 25(a)(1) states:
3
In its order, the District Court repeatedly stated that the ninety-day period began on November
29, 2016, and expired on February 29, 2017. However, a ninety-day period beginning on
November 29, 2016, would have expired on February 27, 2017.
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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). Before 1963, Rule 25 required courts to dismiss an action
if the motion for substitution was not made within two years of the death of the
party. See Rende v. Kay, 415 F.2d 983, 984 (D.C. Cir. 1969). No extensions of
this deadline were allowed. Id. But in 1963, Rule 25 was amended to allow for
substitution of a party within ninety days from when a notice of death is filed and
properly served. See id. at 984–85. This was intended to provide a more flexible
approach and avoid the “hardships and inequities” that resulted from the previously
inflexible, two-year requirement. See Fed. R. Civ. P. 25 advisory committee’s
note to 1963 amendment.
The Advisory Committee’s notes to the amended rule also explain that
courts have the discretion to extend the ninety-day deadline. See id. (“The motion
may not be made later than 90 days after the service of the statement unless the
period is extended pursuant to Rule 6(b), as amended.” (citation omitted and
emphasis added)). Rule 6 was concurrently amended to eliminate the prohibition
on extending Rule 25 deadlines. The Advisory Committee’s notes to Rule 6 from
the same year specifically provide that courts “shall have discretion to enlarge” the
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period for substituting a party under Rule 25. Fed. R. Civ. P. 6 advisory
committee’s note to 1963 amendment.
District courts have discretion to extend the Rule 25 ninety-day period for
substitution. The Advisory Committee’s notes to both Rules 6 and 25 say as much.
And “[a]lthough not binding, the interpretations in the Advisory Committee Notes
are nearly universally accorded great weight in interpreting federal rules.”
Horenkamp v. Van Winkle and Co., 402 F.3d 1129, 1132 (11th Cir. 2005)
(quotation omitted). We therefore agree with our sister circuits that have
recognized that Rule 25’s ninety-day deadline may be extended under Rule 6(b).
See, e.g., Zanowick v. Baxter Healthcare Corp., 850 F.3d 1090, 1094 (9th Cir.
2017); Cont’l Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir. 1993); McSurely
v. McClellan, 753 F.2d 88, 98 n.5 (D.C. Cir. 1985) (per curiam); Staggers v. Otto
Gerdau Co., 359 F.2d 292, 296 (2d Cir. 1966) (“[T]he history of the 1963
amendment to Rule 25 makes clear that the 90 day period was not intended to act
as a bar to otherwise meritorious actions.”).
The District Court based its order on an incorrect interpretation of Rule 25.
The court stated: “if the motion is not made within ninety (90) days after service of
a statement noting the death, the action must be dismissed. Such language is
mandatory, not discretionary.” The District Court’s ruling was therefore based on
its mistaken understanding that it could not extend Rule 25’s ninety-day period.
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But to the contrary, Rule 6(b) permits the court to extend the Rule 25 ninety-day
period for good cause with or without motion. Fed. R. Civ. P. 6(b)(1)(A). And
after the Rule 25 period expired, the District Court retained the discretion to extend
time if Mr. Lizarazo showed “excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B).
Here, the District Court went straight to the “excusable neglect” analysis without
considering whether its December 29 stay effectively extended the Rule 25 period.
Because it applied an incorrect legal standard, the District Court abused its
discretion. See Advanced Estimating Sys., Inc., 77 F.3d at 1325.
On remand, the District Court should consider whether its December 29
order allowing the case to be reopened if “a proper motion is made within 90 days
hereof” had the effect of extending the Rule 25 deadline to March 29. If so, Mr.
Lizarazo’s motions for an extension of the stay, filed March 13, and for
substitution, filed March 28, were both timely. A timely motion to extend is
reviewed for good cause, not excusable neglect, Fed. R. Civ. P. 6(b), and “should
be liberally granted absent a showing of bad faith . . . or undue prejudice.” See,
e.g., United States v. Miller Bros. Const. Co., 505 F.2d 1031, 1035 (10th Cir.
1974).
If the District Court determines that the December 29 order did not extend
the Rule 25 period, it must then turn to the question of whether Mr. Lizarazo’s
delay was the result of “excusable neglect.” A part of the “excusable neglect”
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analysis will no doubt include whether the language of the court’s December 29
order—saying that the case would be reopened if a proper motion to substitute was
filed “within 90 days hereof”—could excuse the March 13 and March 28 filings.
See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 391–
92, 395, 398–99, 113 S. Ct. 1489, 1496, 1498, 1500 (1993) (describing the
“excusable neglect” test and highlighting the “dramatic ambiguity” in a notice
from the court as weighing in favor of a finding of “excusable neglect”).
REVERSED AND REMANDED.
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