Russell, Vester v. City of Milwaukee ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2371
VESTER RUSSELL,
Plaintiff-Appellant,
v.
CITY OF MILWAUKEE, CITY OF
MILWAUKEE EMPLOYEES’ RETIREMENT
SYSTEM ANNUITY & PENSION BOARD,
GARY J. BRAZGEL, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00 C 414—J.P. Stadtmueller, Judge.
____________
ARGUED JUNE 4, 2003—DECIDED JULY 28, 2003
____________
Before RIPPLE, DIANE P. WOOD and WILLIAMS, Circuit
Judges.
RIPPLE, Circuit Judge. Vester Russell brought this claim
pursuant to 42 U.S.C. § 1983, along with a Wisconsin state
law claim, against the City of Milwaukee, the Milwaukee
Employees’ Retirement System Annuity and Pension Board,
and individual defendants (collectively “defendants”). Dur-
ing the pendency of the action, Mr. Russell died. The district
court then entered two scheduling orders setting forth the
2 No. 02-2371
time frame in which a substitution of parties was to be filed.
After Mr. Russell’s representatives failed to substitute
parties by the deadline set in the court’s final scheduling
order, the defendants filed a Suggestion of Death on the
Record in accordance with Federal Rule of Civil Procedure
25(a). When Mr. Russell’s representative or attorney did not
file for a substitution of parties within 90 days of filing the
Suggestion of Death, and six months after it was due under
the district court’s last scheduling order, the district court
dismissed the case with prejudice in accordance with Rule
25(a). For the reasons set forth in this opinion, we affirm the
judgment of the district court.
I
BACKGROUND
Vester Russell was a firefighter for the City of Milwaukee,
Wisconsin. He was injured in an accident and subsequently
applied for disability benefits on November 8, 1994, under
the Milwaukee Employees’ Retirement System. This plan is
administered by the Milwaukee Employees’ Retirement
System Annuity and Pension Board (“the Board”). Two
years later, Mr. Russell’s disability benefits were discontin-
ued. After unsuccessfully taking two intermediate adminis-
trative appeals, Mr. Russell further appealed the discontinu-
ance to the Board. The Board initially decided that, in order
to evaluate effectively his eligibility for the benefits, Mr.
Russell ought to be re-examined; however, the Board even-
tually decided against that course. In a vote on January 24,
2000, the Board affirmed the intermediate decisions and
denied Mr. Russell disability benefits.
In February 2000, Mr. Russell filed suit against the City of
Milwaukee, the Board, and the members of the Board as
No. 02-2371 3
constituted on January 24, 2000, in their official capacities,
under § 1983 for denial of due process and under Wisconsin
statutory law, which provides for judicial review of the
termination of disability benefits after exhausting admin-
istrative appeals. See Wis. Stat. § 68.13. The defendants
removed the case to the district court in March 2000.
On May 31, 2000, the district court entered a scheduling
order requiring that discovery be completed by December
1, 2000, and that all dispositive motions be filed by January
10, 2001. However, on December 19, 2000, Mr. Angermeier,
counsel for Mr. Russell, sent a letter to the court, with a copy
to Jurmaine Russell (Mr. Russell’s wife) and to counsel for
the defendants, informing the court that “Mr. Russell unex-
pectedly died on December 3, 2000 due to a brain aneu-
rysm.” Appellees’ Br. App. at 103. The letter also explained
that Ms. Russell had not retained Mr. Angermeier to rep-
resent any interest she may have in the action and noted
that Ms. Russell was “currently not a party to this action.”
Id. The court then entered a revised scheduling order by
stipulation of the parties that provided “[t]hat surviving
spouse of Plaintiff Vester Russell’s be allowed until Febru-
ary 1, 2001 to obtain counsel and move for a substitution of
parties.” R.10 at 1.
On January 25, 2001, Attorney Willie J. Nunnery entered
a notice of appearance as an attorney for “the Plaintiff” in
this case and then moved to extend the deadlines in the
scheduling order. R.11 at 1. Accordingly, Attorney Maurita
Houren (counsel for defendants), Mr. Angermeier and Mr.
Nunnery all signed a stipulation for a new scheduling order,
which was entered by the court. The order contained the
following deadlines: (1) a deadline of April 1, 2001, for
substitution of parties by the surviving spouse; (2) a dis-
covery deadline of June 1, 2001; and (3) a deadline for all
dispositive motions of July 1, 2001. See R.14 at 1-2. Mr.
4 No. 02-2371
Nunnery failed to file a substitution of parties by April 1,
2001; in fact, a substitution was never filed in this case.
On June 7, 2001, Mr. Nunnery sought, and the court
granted, an extension of the discovery and dispositive
motions deadlines; specifically, all discovery had to be
completed by July 10, 2001, and all dispositive motions had
to be filed by August 3, 2001. See R.18 at 1. Nevertheless, the
court warned that “because there already have been several
extensions this will be the last extension granted in this
case.” Id.On June 18, 2001, the defendants filed by letter a “Sugges-
tion of Death on the Record” with the court pursuant to
Rule 25(a)(1). R.17. The Suggestion of Death did not include
a certificate of service stating that it had been served on Mr.
Nunnery and Mr. Angermeier. However, a cover letter to
the court accompanying the Suggestion of Death stated that
copies of the Suggestion of Death were being served “on the
attorneys of record.” Letter of Maurita Houren to district
court 6/15/01. Additionally, in a subsequent letter to the
court dated October 31, 2001, Ms. Houren stated that she
had served the Suggestion of Death by mailing it to both
Mr. Nunnery and Mr. Angermeier.
On August 3, 2001, the defendants moved for partial
summary judgment on the merits, and, subsequently, on
September 26, 2001, the defendants moved to dismiss on the
basis that there had been no substitution of parties. On
October 12, 2001, Mr. Nunnery filed a response to the
motion to dismiss. Attached to the response was an affida-
vit, in which Mr. Nunnery attested that “he did not receive
a copy of the Suggestion of Death on the Record Pursuant to
Federal Rule of Civil Procedure 25(a)(1).” R.31 at 1. Mr.
Nunnery also filed a motion for “leave for substitution of
the party-plaintiff.” R.32. His reasons for requesting leave
were that such was “[i]n the interest of justice,” that discov-
No. 02-2371 5
ery was completed, that “no party will be prejudiced by this
substitution” and for reasons stated in an attached affidavit
by Mr. Nunnery. Id. at 1. The attached affidavit noted the
death of Mr. Russell and stated that Mr. Nunnery, “as
Plaintiff’s counsel, was unintentionally derelict in filing
appropriate substitution of parties in the above-captioned
matter.” R.33 at 2. No excuse or explanation was offered.
The district court, relying on Rule 25(a), granted the
defendants’ motion to dismiss the case in its entirety and
denied the plaintiff’s motion for leave to substitute parties.
In its order, the district court refused to exercise its discre-
tion and extend the time period to substitute parties. It
additionally found that Ms. Houren had in fact served the
Suggestion of Death on Mr. Nunnery by mailing it. The
district court noted that under Rule 5(b), service is effected
when the paper is mailed and not when it is received, and
thus the question of whether Mr. Nunnery received the
Suggestion of Death was irrelevant. The court found, “rely-
ing upon the October 31, 2001 signed letter of Defendants’
counsel,” that “the suggestion of death was served upon
Nunnery and Angermeier.” R.35 at 9.
II
DISCUSSION
A.
Mr. Russell argues on appeal that the defendants did not
comply with Rule 25(a)(1) and that the court erred in dis-
missing the entire action. “[W]e review the district court’s
legal interpretation of Rule 25(a)(1) de novo and factual
findings for clear error.” Unicorn Tales, Inc. v. Banerjee, 138
F.3d 467, 469 (2d Cir. 1998).
6 No. 02-2371
Federal Rule of Civil Procedure 25(a)(1) states:
If a party dies and the claim is not thereby extinguished,
the court may order substitution of the proper parties.
The motion for substitution may be made by any party
or by the successors or representatives of the deceased
party and, together with the notice of hearing, shall be
served on the parties as provided in Rule 5 and upon
persons not parties in the manner provided in Rule 4
. . . . 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).
Mr. Nunnery asserts that the 90-day period was not trig-
gered by Ms. Houren’s filing of the Suggestion of Death on
June 18, 2001, because she “did not comply in any manner
with the requirements of Fed. R. Civ. P. 25(a)(1),” that is,
“[t]here was never any service to any party in this matter
regarding the proposed Suggestion of Death on the Record.”
Appellant’s Br. at 31. Rule 25(a) specifically requires service
on parties, and Mr. Nunnery’s affidavit states that he was
not served with the Suggestion of Death. However, the
district court found that service had been effected. At oral
argument, Mr. Nunnery clarified the contours of his conten-
tion on appeal. He argues that, when a certificate of service
has not been filed, as it was not in this case, the district court
cannot determine that the Suggestion of Death nevertheless
was served on the parties.
Rule 25(a) incorporates Rule 5 as setting forth the manner
in which the Suggestion of Death and any substitution of
parties is to be served. Rule 5(a) requires that the papers
within its ambit “shall be served upon each of the parties.”
No. 02-2371 7
1
Fed. R. Civ. P. 5(a). Rule 5(d) states: “All papers . . . re-
quired to be served upon a party, together with a certificate
of service, must be filed with the court within a reasonable
time after service.” Fed. R. Civ. P. 5(d). The certificate of
service provision was added in 1991, and the Advisory
Committee Notes explain that 5(d) was “amended to require
that the person making service under the rule certify that
service has been effected.” Fed. R. Civ. P. 5(d) advisory
committee’s note (1991). Although the word “require”
connotes that the filing of the certificate is mandatory, the
rest of the Advisory Committee Note indicates that the
purpose of the requirement is to aid the district court by
creating a standard method of proof that service was made;
there is no indication that the amendment was meant to
remove completely a district court’s discretion to find that
service has been made when a party fails to file a certificate.
The Advisory Committee Note states: “Having such infor-
mation on file may be useful for many purposes, including
proof of service if an issue arises concerning the effective-
ness of the service. The certificate will generally specify the
date as well as the manner of service . . . .” Id.In a somewhat different situation, the Northern District of
New York refused to disregard an amended complaint
“because of the absence of a certificate of service,” where
actual service was not contested. Ives v. Guilford Mills, Inc.,
3 F. Supp. 2d 191, 195 (N.D.N.Y. 1998). The court in Ives
stated that “[t]he principal importance of the certificate of
service is to provide the Court with clear proof that service
has been accomplished.” Id. However, the absence of a
certificate does not require the invalidation of the paper
1
Federal Rule of Civil Procedure 5(b) explains that service “on
a party represented by an attorney is made on the attorney unless
the court orders service on the party.”
8 No. 02-2371
where service is not contested or where the court finds that
service was accomplished. See 1 James Wm. Moore et al.,
Moore’s Federal Practice § 5.20[1] at 5-34 (3d ed.) (“The
absence of a certificate of service does not necessarily
invalidate or render ineffective a paper that is served when
the fact of service is not contested.”); cf. Bullock v. N. Ins. Co.
of New York, 331 F.2d 431, 432 (10th Cir. 1964) (finding, in a
case decided before the amendment to Rule 5(d), that the
record supported the district court’s finding that service had
been made despite the lack of certificate of service). Cer-
tainly, if a paper filed with the court does not contain the
required certificate of service, a court may disregard it. See,
e.g., Boreland v. Butterfly, No. 92-0458, 1992 WL 20205, at *2
(E.D. Pa. Jan. 30, 1992) (instructing pro se plaintiffs that “[i]f
any pleading or other paper submitted for filing does not
include a certificate of service upon the opposing party or
counsel for opposing party, it may be disregarded by the
Court” (emphasis added)); Kirsch v. Smith, 853 F. Supp. 301,
304 (E.D. Wis. 1994) (same). Yet, a court is not obligated to
disregard the paper if it finds by other evidence that the
2
paper was in fact served on the parties.
The district court found that Ms. Houren served the
Suggestion of Death on Mr. Nunnery as evidenced by Ms.
Houren’s October 31, 2001, signed letter to the court that
she had mailed copies to both Mr. Nunnery and Mr.
Angermeier. Rule 25(a) specifically requires service on
parties in accordance with Rule 5, which allows for service
by mail and states that “[s]ervice by mail is complete on
mailing.” Fed. R. Civ. P. at 5(b)(2)(B); see also Russell v. Delco
2
In the related context of serving the initial complaint, Rule 4
states that “[f]ailure to make proof of service does not affect the
validity of the service. The court may allow proof of service to be
amended.” Fed. R. Civ. P. 4(l).
No. 02-2371 9
Remy Div. of Gen. Motors Corp., 51 F.3d 746, 750 (7th Cir.
1995) (“Service by mail, of course, is complete at the time of
mailing.”). According to Moore’s Federal Practice:
Service is deemed complete at the instant the documents
are placed into the hands of the United States Post
Office or a Post Office Box. The critical event in the
service procedure under Rule 5 is the mailing, not
receipt, of the papers sought to be served. Nonreceipt or
nonacceptance of the envelope containing the papers is
insignificant and has no effect on the validity of service.
If nonreceipt can be proved, however, it is within the
court’s discretion to extend any applicable response
period pertaining to the served paper.
Moore’s Federal Practice § 5.04[2][a][ii] at 5-29 to 5-30; see
also Charles Alan Wright & Arthur R. Miller, Federal Practice
& Procedure: Civil § 1148 at 449-51 (3d ed. 2002) (stating that
“[s]ince [Rule 5] expressly directs that the service is com-
plete upon mailing, nonreceipt or nonacceptance of the
papers by the person to be served generally does not affect
the validity of the service of the papers, although nonreceipt
of the paper may justify the court [in making a] finding of
excusable neglect on the part of the intended recipient and
permit her to take any required action or make any appro-
priate response out of time”).
The court’s finding that Ms. Houren served the Suggestion
of Death was based on Ms. Houren’s signed statement in
her letter of October 31, 2001, that she mailed a copy to each
attorney at the time she filed the Suggestion of Death with
the court in June. Moreover, her initial cover letter to the
court accompanying her June filing of the Suggestion of
Death stated that she also was mailing it to the parties, a
further indication that her October 31, 2001, claim of mailing
was not an afterthought. The district court’s finding that
10 No. 02-2371
service was made was not clearly erroneous and is sup-
ported by the cover letter and the October 31, 2001, letter to
3
the court. Thus, the Suggestion of Death was sufficient and
the 90-day requirement was triggered by the June 18, 2001,
filing of the Suggestion of Death.
B.
The district court also did not abuse its discretion by
refusing to extend the time within which Mr. Nunnery
could have filed the substitution of parties. Rule 6(b)
“allows the Court in its discretion to permit a motion for
substitution after the expiration of the 90 day time period.”
Tatterson v. Koppers Co., 104 F.R.D. 19, 20 (W.D. Pa. 1984).
Rule 6(b) states that the court “for cause shown may at any
time in its discretion . . . upon motion made after the
expiration of the specified period permit [an] act to be done
where the failure to act was the result of excusable neglect.”
Fed. R. Civ. P. 6(b).
In Tatterson, 104 F.R.D. 19, the 90-day limit was extended
when counsel for the deceased was unable to move for
substitution because of the delays in the appointment of an
executor. However, no such problem was encountered in
3
Moreover, on September 5, 2001, prior to the filing of the
defendants’ motion to dismiss for failure to substitute parties, Mr.
Nunnery responded to the defendants’ motion for partial
summary judgment and “[a]dmitted,” without reservation, the
defendants’ statement of fact that “[a] Suggestion of Death on the
Record was filed on June 18, 2001 pursuant to Fed. R. Civ. P.
25(a)(1).” R.20 at 2; R.23 at 2. Mr. Nunnery did not object to the
Suggestion of Death or claim that it was otherwise deficient or
state that he had not been served with the Suggestion of Death
until after the defendants moved to dismiss the action.
No. 02-2371 11
this case. Ms. Russell was appointed administrator of the
estate in March 2001, before either the Suggestion of Death
was filed or the passage of the April 1, 2001, deadline for
filing the substitution.
In Continental Bank, N.A. v. Meyer, 10 F.3d 1293 (7th Cir.
1993), we upheld a district court’s extension of the Rule
25(a) 90-day limit when “the failure to file in time was the
result of excusable neglect.” Id. at 1297. Yet, here, Mr.
Nunnery has not made any showing or argument of excus-
able neglect. He knew that he needed to file the substitution
and had stipulated to a scheduling order requiring him to
file such by April 1, 2001. When he still did not file the
substitution within three months after June 18, 2001, he
offered no excuse, stating that he “was unintentionally
derelict in filing appropriate substitution of parties.” R.33 at
2. Accordingly, the district court did not abuse its discretion
4
under Rule 6 by enforcing the deadline. Id.4
Finally, Mr. Nunnery argues that the district court erred in
dismissing the entire action, rather than in dismissing solely the
federal due process claim because Rule 25(a) only requires that
“the action [ ] be dismissed as to the deceased party.” Fed. R. Civ.
P. 25(a)(1). This argument is frivolous. If the sole plaintiff is
dismissed from the action, the entire case should be dismissed.
Moreover, dismissing the entire action in that circumstance does
not violate the rule because the action is only being dismissed “as
to the deceased party.” Id.12 No. 02-2371
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-28-03