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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13946
____________________
MARIDA SILAS,
individually, and in her prospective capacity as Personal Repre-
sentative of the Estate of Rochenel Silas,
Plaintiff - Appellant,
versus
SHERIFF OF BROWARD COUNTY, FLORIDA,
Defendant - Appellee
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:20-cv-61480-WPD
____________________
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2 Opinion of the Court 21-13946
Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, and MARCUS,
Circuit Judges.
WILLIAM PRYOR, Chief Judge:
This appeal concerns who must be served with a suggestion
of death before a district court dismisses a complaint against a de-
ceased party. Federal Rule of Civil Procedure 25(a) permits the dis-
missal if no one moves to substitute a proper party for the decedent
“within 90 days after service of a statement noting the death.” Rule
25(a)(3) states that a suggestion of death must be served on “non-
parties” without specifying which nonparties must be served. The
district court concluded, and we agree, that service on the surviv-
ing family members was unnecessary where the decedent had no
estate when the suggestion of death was filed. Because the dece-
dent’s survivors were not identified as his legal successors and did
not have to be served before the 90-day deadline under Rule 25 ex-
pired, we affirm.
I. BACKGROUND
In 2015, Rochenel Silas filed a complaint against Officer Paul
Yesbeck and the Sheriff of Broward County, Florida. Silas alleged
claims for battery and false arrest based on his arrest by Yesbeck in
2011. After Silas added federal claims against Yesbeck,
42 U.S.C.
§ 1983, the Sheriff removed the case to the district court. Rochenel
has since died, though his death has no bearing on this appeal.
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21-13946 Opinion of the Court 3
Rochenel is survived by his wife, Marida, who serves as the per-
sonal representative of his estate in this lawsuit.
On June 18, 2021, Yesbeck died. On July 12, 2021, the Sheriff
filed a suggestion of death and served Silas’s counsel. Silas re-
sponded to the notice and argued that her claims against Yesbeck
survived his passing “provided [that] a timely compliant Motion for
Substitution under [Federal] Rule [of Civil Procedure] 25 is filed.”
The district court notified Silas of the deadline, under Rule
25, to substitute a new defendant for Yesbeck. That rule provides
that “[i]f the motion [for substitution] is not made within 90 days
after service of a statement noting the death, the action . . . against
the decedent must be dismissed.” FED. R. CIV. P. 25(a)(1). The dis-
trict court notified the parties that any motion to substitute “must
be filed on or before October 11, 2021.” The district court cau-
tioned that “[f]ailure to do so shall result in the immediate dismissal
of any claims against Paul Yesbeck pursuant to Fed. R. Civ. P.
25(a).”
On August 27, 2021, Silas filed a motion to substitute an ad-
ministrator ad litem for Yesbeck. In support of the motion, Silas
explained that she had identified Yesbeck’s surviving spouse and
two children and had learned that an estate had not been opened
for Yesbeck. As a result, Silas said that she would retain counsel in
Alabama and open an estate for Yesbeck. Then, she would “seek
the appointment of an administrator ad litem as personal repre-
sentative or executor of the estate.” Those steps are required under
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4 Opinion of the Court 21-13946
Alabama law to continue a suit against a deceased party. ALA. CODE
§§ 43-2-42(a), 43-2-250.
On August 30, 2021, the district court denied Silas’s motion
for substitution without prejudice. The district court concluded
that the motion was premature because it did “not appear from the
motion that an estate for Paul Yesbeck ha[d] been opened in Ala-
bama, nor ha[d] an Alabama court appointed an administrator ad
litem as personal representative or executor for that estate.” The
district court stated that Silas could renew the motion after satisfy-
ing these requirements. The district court also reminded the parties
of its earlier order setting October 11, 2021, as the deadline “for the
filing of any motion for substitution.”
Silas never took the necessary steps to open an estate for
Yesbeck in Alabama, and she never filed another motion to substi-
tute a proper party. After the deadline passed, the district court dis-
missed all claims against Yesbeck for failure to substitute a proper
party.
A week later, Silas filed a motion to vacate, amend, or mod-
ify the order dismissing the claims against Yesbeck or, in the alter-
native, for relief from that order. Silas argued that her August mo-
tion for substitution complied with Rule 25(a). She argued that a
defective motion to substitute satisfies Rule 25(a) because the rule
“requires only that a motion for substitution be filed,” not that it
be “consummated.” (Emphasis added). Silas alternatively argued
that the failure to file a timely motion was the result of excusable
neglect. She argued that she had interpreted the August order that
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21-13946 Opinion of the Court 5
denied her motion for substitution as “providing . . . a reasonable
amount of time after the deadline of October 11, 2021” to open an
estate for Yesbeck. After the Sheriff filed a response, Silas filed a
supplemental motion to vacate. Silas argued for the first time that
the 90-day period for filing a motion for substitution had never
commenced because the Sheriff failed to serve the suggestion of
death on Yesbeck’s surviving family members.
The district court denied the motion to vacate. It concluded
that dismissal was warranted because Silas failed to meet the Octo-
ber 11 deadline. And it found that Silas did not establish excusable
neglect based on her failure to meet a clear deadline. The district
court also rejected Silas’s argument that service was deficient under
Rule 25(a). It agreed with the Sheriff that Yesbeck had no succes-
sors or representatives, so the Sheriff did not need to serve a “non-
existent, non-party.”
II. STANDARDS OF REVIEW
Two standards govern our review. “We review de novo a
district court’s interpretation of the Federal Rules of Civil Proce-
dure.” Lizarazo v. Miami-Dade Corr. & Rehab. Dep’t,
878 F.3d
1008, 1010 (11th Cir. 2017). And we “review a district court’s deter-
mination regarding excusable neglect for abuse of discretion.” Cor-
win v. Walt Disney Co.,
475 F.3d 1239, 1255 (11th Cir. 2007).
III. DISCUSSION
We divide our discussion into two parts. First, we explain
that the district court correctly dismissed the claims against
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6 Opinion of the Court 21-13946
Yesbeck because the Sheriff did not have to serve a suggestion of
death on Yesbeck’s survivors. Second, we explain that the district
court did not abuse its discretion in denying Silas’s motion to va-
cate because Silas’s failure to meet a clear deadline does not qualify
as excusable neglect.
A. The District Court Correctly Dismissed the Claims Against
Yesbeck Under Rule 25.
The parties dispute whether Yesbeck’s surviving spouse and
children qualify as nonparties who had to be served with a sugges-
tion of death when no estate existed for Yesbeck. Federal Rule of
Civil Procedure 25(a)(3) provides that a statement noting death
“must be served on the parties as provided in Rule 5 and on non-
parties as provided in Rule 4.” The parties agree that the Sheriff
properly served the “parties,” but the Rules do not define who
counts as a “nonparty.” Silas maintains that Yesbeck’s surviving
family members were nonparties who had to be served with a sug-
gestion of death. Because the Sheriff did not serve these nonparties,
Silas contends that the district court lacked the authority to dismiss
the action against Yesbeck.
Although Rule 25 does not define “nonparty,” its context
makes clear that the decedent’s surviving family members do not
need to be served with a suggestion of death unless they represent
the decedent’s estate. Rule 25 facilitates the substitution of a
“proper party” to take the place of the decedent. FED. R. CIV. P.
25(a)(1). By requiring service of a suggestion of death on nonpar-
ties, the Rule encourages the existing parties to promptly identify
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21-13946 Opinion of the Court 7
which—if any—nonparties have the legal authority to step into the
decedent’s position in the case. Those nonparties must be notified
to begin the 90-day period provided by Rule 25(a)(1). But they are
a limited group. After all, nonparties cannot mean “every person in
the United States who happens not to be a party to the lawsuit in
question.” Atkins v. City of Chicago,
547 F.3d 869, 873 (7th Cir.
2008).
To identify who has the legal authority to serve as a substi-
tute, we look to the text of Rule 25, which specifically references
the decedent’s “successor[s]” or “representative[s]” as the only non-
parties who may move for substitution. FED. R. CIV. P. 25(a)(1).
These nonparties are not necessarily the decedent’s surviving fam-
ily members. Instead, a state probate court determines who serves
as the decedent’s successor or representative of his estate. See ALA.
CODE § 43-2-42(a); see also Henderson v. Briarcliff Nursing Home,
451 So.2d 282, 283–84 (Ala. 1984) (noting that the status of “per-
sonal representative” is “judicially conferred”), overruled on other
grounds by Hayes v. Brookwood Hosp.,
572 So.2d 1251 (Ala. 1990).
Under Rule 25, the party serving the suggestion of death must look
to state law, identify the decedent’s representative or successor,
and notify that party of the death and the lawsuit. Only after that
notice can the 90-day period begin. But when the decedent lacks a
legal successor or representative, Rule 25 does not require service
on “nonparties” who lack the legal authority to serve as a substitute
party. As we have explained, “to start Rule 25’s ninety-day clock, a
suggestion of death must be filed with the court and served on a
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8 Opinion of the Court 21-13946
personal representative of the deceased party.” Lizarazo, 878 F.3d
at 1010.
Our sister circuit’s decision in Atkins v. City of Chicago is
instructive. There, counsel for the deceased plaintiff did not serve
a suggestion of death on the decedent’s wife.
547 F.3d at 873. In the
suggestion of death, counsel for the decedent named the wife as
the pending personal representative of the decedent’s estate and
stated that he would be representing her.
Id. But he never served
the wife with a suggestion of death. The Seventh Circuit held that
“nonparties with a significant financial interest in the case, namely
the decedent’s successors (if his estate has been distributed) or per-
sonal representative ([if] it has not been), should certainly be
served.”
Id. It concluded that the decedent’s wife needed to be
served because she had been identified as the pending personal rep-
resentative of her husband’s estate.
Yesbeck’s surviving family members do not qualify as non-
parties who must be served to begin the 90-day period for substitu-
tion under Rule 25. Silas acknowledges that Yesbeck’s family mem-
bers were not representing the estate. No estate existed. Silas also
offers no evidence that these family members had been identified
as the pending representatives of the estate. See Atkins,
547 F.3d at
873. As a result, Yesbeck’s “survivors” were no more liable to Silas
than any other stranger to the lawsuit. Because Yesbeck’s “survi-
vors” had no stake in the lawsuit and lacked the legal authority to
file a motion to substitute, they did not have to be served before
the substitution period could begin.
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21-13946 Opinion of the Court 9
Silas argues that because no estate existed, she had no way
to substitute a party for Yesbeck, but we disagree. State law—in
this case, Alabama law—controls the opening of an estate. Under
Alabama law, where the decedent’s survivors do not apply to ad-
minister the estate and forty days pass, they relinquish their right.
ALA. CODE § 43-2-43(b). After that period, Silas was permitted to
apply for letters of administration. See id. The August 30, 2021, or-
der informed Silas precisely what steps she needed to take to renew
her motion for substitution. It told her to open an estate in Ala-
bama. And it stated that the Alabama court would appoint an ad-
ministrator of the estate. Silas said that she would take these steps.
She stated that she would retain local counsel in Alabama and open
an estate for Yesbeck. But she never did so.
Silas also never moved to extend the time to file a motion
for substitution. Kotler v. Jubert,
986 F.3d 147, 155–56 (2d Cir.
2021). Rule 6(b) “allows a litigant to seek permission to enlarge the
time in which ‘an act may or must be done,’ and allows the court
to extend a litigant’s time for good cause.”
Id. (quoting FED. R. CIV.
P. 6(b)). Silas could have sought more time to file her motion for
substitution in the event the state court failed to appoint an admin-
istrator of the estate before the 90-day window expired.
Id. But Silas
never did so. Only after the 90-day deadline passed and the district
court dismissed the claims against Yesbeck did Silas object. Because
Silas failed to take the requisite steps to open an estate before the
90-day period expired, the district court properly dismissed the
claims against Yesbeck.
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10 Opinion of the Court 21-13946
The Sheriff also argues that a different rule applies when the
decedent is a defendant than when he is a plaintiff. But the text of
Rule 25 does not distinguish between plaintiffs and defendants.
And the only question before us is whether the Sheriff had to serve
the surviving family members of a deceased defendant when they
did not represent the decedent’s estate. He did not.
B. Silas’s Failure to Meet the Deadline Was Inexcusable.
Silas also argues that the district court abused its discretion
when it refused to forgive her failure to meet the deadline under
Rule 25 as excusable neglect, but we again disagree. Silas’s failure
to abide by a clear deadline means that she cannot establish excus-
able neglect.
When a party files a motion for an extension of time after
the expiration of a deadline, the court must decide whether the fail-
ure to meet the deadline was “because of excusable neglect.” FED.
R. CIV. P. 6(b)(1)(B). We have held that, as a matter of law, “an at-
torney’s misunderstanding of the plain language of a rule cannot
constitute excusable neglect such that a party is relieved of the con-
sequences of failing to comply with a statutory deadline.” Ad-
vanced Estimating Sys., Inc. v. Riney,
130 F.3d 996, 998 (11th Cir.
1997). Moreover, “inadvertence, ignorance of the rules, or mistakes
construing the rules do not usually constitute ‘excusable neglect.’”
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,
507 U.S.
380, 392 (1993). So, failure to abide by a clear legal deadline consti-
tutes inexcusable neglect.
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21-13946 Opinion of the Court 11
Silas’s inadvertence and ignorance of the rules cannot excuse
her failure to meet the Rule 25 deadline. Silas should have been
aware of the 90-day deadline for a motion to substitute. And, in the
event her memory needed jogging, the district court reminded her
twice. In its July 23, 2021, order, the district court stated that any
motion to substitute “must be filed on or before October 11, 2021.”
Then, in denying Silas’s motion to substitute on August 30, 2021,
the district court reminded the parties that it had “entered an Order
setting a deadline of October 11, 2021, for the filing of any motion
for substitution.” Silas not only misunderstood the clear import of
Rule 25 but also ignored repeated court warnings of the 90-day
deadline. Under Pioneer and Advanced Estimating Systems, that
inadvertence cannot constitute excusable neglect.
Silas insists that the motion to substitute contained a “dra-
matic ambiguity” that excuses her failure to meet the deadline. She
argues that the August 30, 2021, order did not contain a clear dead-
line and did not “reiterate that a substitution had to occur by the
original deadline of October 11, 2021.” But the record belies Silas’s
argument. The district court reminded the parties of the October
11, 2021, deadline in its order denying Silas’s motion to substitute.
And it enforced that deadline—as is required by Rule 25, although
the deadline may be extended for good cause, Lizarazo, 878 F.3d at
1011—in dismissing the claims against Yesbeck. Silas’s failure to
abide by that deadline was not excusable.
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12 Opinion of the Court 21-13946
IV. CONCLUSION
We AFFIRM the dismissal of the complaint against Officer
Yesbeck. We also deny as moot Silas’s motion to supplement the
record.
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21-13946 ROSENBAUM, J., Concurring 1
ROSENBAUM, Circuit Judge, Concurring:
I concur in the Court’s opinion. I write separately only to
point out the natural import of our decision today, in combination
with our decision in Lizarazo v. Miami-Dade Corrections & Reha-
bilitation Department,
878 F.3d 1008 (11th Cir. 2017).
Federal Rule of Civil Procedure 25(a)(1) authorizes “any
party or . . . the decedent’s successor or representative” to file a
motion for substitution upon a party’s death. But the motion must
be filed “within 90 days after service of a statement noting the
death,” unless the court grants extensions of time, or “the action
by or against the decedent must be dismissed.”
Id. As for how
service must be effected, Rule 25(a)(3) tells us, as relevant here, that
both a notice of death and a motion to substitute “must be served
on the parties . . . and on nonparties . . . .”
Id. Today, we explain
that the “nonparties” on whom the notice of death and motion to
substitute must be served are the successor or personal representa-
tive of the deceased (or both if both exist).
We have previously held that, “to start Rule 25’s ninety-day
clock, a suggestion of death must be filed with the court and served
on a personal representative [and successor] of the deceased party.”
Lizarazo, 878 F.3d at 1009. This case is about what happens when
there is no successor or personal representative. And on that score,
we hold that, when no successor or personal representative exists,
a party complies with Rule 25(a)(1)’s requirement to serve the no-
tice of death by serving the other parties, since no “nonparties,” as
Rule 25(a) defines the term, exist.
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2 ROSENBAUM, J., Concurring 21-13946
But Rule 25(a) and our reasoning necessarily mean that,
when a successor or personal representative does exist—even if the
serving party does not know of that successor or personal repre-
sentative—the service on the other parties alone does not trigger
the ninety-day clock. That is so for two reasons.
First, as I’ve noted, we held in Lizarazo and reaffirm today
that, when a successor or personal representative exists, the ninety-
day clock does not begin to run until after that successor or per-
sonal representative is served with the suggestion of death. We
based our holding on the text of Rule 25(a). See Lizarazo, 878 F.3d
at 1009; Maj. Op. at 7–8. And Rule 25(a)’s text does not distinguish
expressly or implicitly in application of the rule to deceased plain-
tiffs and deceased defendants, so the Lizarazo rule applies equally
in both situations. Reviewing Rule 25(a)’s text also reveals that it
does not excuse or except failure to serve the successor or repre-
sentative when one or both exist.
Second, if the ninety-day clock were triggered by service on
only parties, even when a successor or representative existed and
the serving party knowingly shirked its duty to serve that successor
or representative, the rule requiring service on a successor or rep-
resentative would then rarely, if ever, be followed in the context
we have today—that is, when a defendant is the deceased party and
the serving party is one that has no interest in recovery from or
blame on that deceased defendant. Indeed, allowing a serving
party to avoid compliance with Rule 25(a)’s requirement to serve
the successor or representative would supercharge the incentive
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21-13946 ROSENBAUM, J., Concurring 3
for defendants not to seek to identify the successor or representa-
tive. After all, failing to look at all for a successor or representative
would allow the serving party to start the ninety-day clock imme-
diately—even if a successor or representative were readily identifi-
able.
Such an interpretation would also have administrative con-
sequences for the district court: plaintiffs who received a Rule 25(a)
notice from another party might well be inclined to seek eviden-
tiary hearings on whether the serving party knew that a successor
or representative existed in cases where the plaintiff became aware
that a successor or representative existed. And if the plaintiff could
show that the serving party did know but didn’t reveal that infor-
mation in the suggestion of death, sanctions might be in order, or
a court might have to unwind its closing of the case, which could
have been prevented had the serving party simply complied with
its obligation to serve the successor or representative.
But holding serving parties responsible by not starting the
ninety-day clock if a successor or personal representative exists and
the serving party fails to serve them mitigates these problems. For
starters, it incentivizes the serving party to undertake at least some
efforts to identify a successor or personal representative. As a re-
sult, the letter and spirit of Rule 25(a)(1) are far more likely to be
complied with—a desirable consequence in its own right. And
that, in turn, appreciably decreases the chances a court will have to
unwind a case later because an unserved successor or representa-
tive existed at the time of service on the parties.
