Ray v. Koester , 85 F. App'x 983 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 21, 2004
Charles R. Fulbruge III
Clerk
No. 03-50513
Summary Calendar
RICHARD C. RAY,
Plaintiff-Appellant,
versus
HAROLD F. KOESTER, also known as
Harold F. Keester,
Defendant-Appellee.
On Appeal from the United States District Court
for the Western District of Texas
(W-01-CV-347)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
The first issue in this pro se appeal is whether the district
court concluded correctly that a suggestion of death filed by
defendant Koester’s attorney in August 2002 began the 90-day period
for filing a motion to substitute party under FED. R. CIV. P.
25(a)(1). We review de novo the district court’s interpretation of
the Federal Rules of Civil Procedure. Bellaire General Hosp. v.
Blue Cross Blue Shield of Mich., 97 F.3d 822, 827 (5th Cir. 1996).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
The second issue is whether the district court declined properly to
grant Ray a second extension of time in which to comply. This
decision is reviewed for abuse of discretion. See Geiserman v.
MacDonald, 893 F.2d 787, 793 (5th Cir. 1990). (Ray’s motion to
file a corrected reply brief is GRANTED.)
Ray filed his action, arising from a motor vehicle accident,
against Koester on 5 December 2001; Koester answered Ray’s
complaint. Koester’s attorney filed a suggestion of death on 20
August 2002 (Defendant Koester died on 18 August 2002). The
suggestion of death was served on Ray on the same day; he received
it on 26 August.
On 26 November, Koester’s attorney filed a motion to dismiss
because Ray had not filed a motion to substitute party within 90
days of the suggestion of death, as required by FED. R. CIV. P.
25(a)(1). On 9 December, Ray responded by requesting a 30-day
extension to so file. On 23 December, the court granted an
extension to 6 January 2003. The order stated: “Failure to respond
to Defendant’s Motion to Dismiss or to properly submit a fully
compliant Motion for Substitution will result in the dismissal of
Plaintiff’s lawsuit against Defendant”.
On 8 January 2003, Ray filed a response to the motion to
dismiss. He did not file a motion to substitute party. On 5
February 2003, Ray filed a motion entitled “Plaintiff’s Motion for
Substitution of Death”, which sought information about who would be
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named the successor to Koester. On 31 March, the district court
issued an opinion and order in which it concluded that the 20
August 2002 suggestion of death began Rule 25’s 90-day period. The
court declined to grant a further extension of time and dismissed
this action.
Rule 25 provides that, when a party to litigation dies, a
court may order substitution of the party. It states, in relevant
part: “Unless the motion for substitution is made not later than 90
days after the death is suggested upon the record by service of a
statement of the fact of the death as provided herein for the
service of the motion, the action shall be dismissed as to the
deceased party”. FED. R. CIV. P. 25(a)(1).
Ray did not file a motion for substitution within 90 days
after service of the suggestion of death. He contends that the
suggestion was not adequate to begin the 90-day period because it
did not identify a proper party to succeed Koester. The district
court concluded that Rule 25 does not require that the suggestion
specifically identify the proper party, and that the 20 August 2002
suggestion was sufficient to begin the 90-day period.
The district court was correct. Rule 25 does not require that
the suggestion of death identify the successor party. See Unicorn
Tales, Inc. v. Banerjee, 138 F.3d 467, 470 (2d Cir. 1998).
The district court chose, within its discretion, to grant Ray
an extension of time to comply with Rule 25. In so doing, it
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stated that failure to reply to the motion to dismiss or to file a
motion to substitute party by 6 January 2003 would result in
dismissal. Ray failed to do either. Essentially for the reasons
stated by the district court in its 31 March 2003 order, it was
within the district court’s discretion to decline to offer a
further extension.
AFFIRMED
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