Russell v. City of Milwaukee

• Decision Date: 28 July 2003
• Docket Number: No. 02-2371.,02-2371.
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: Vester RUSSELL, Plaintiff-Appellant, v. CITY OF MILWAUKEE, City of Milwaukee Employees' Retirement System Annuity & Pension Board, Gary J. Brazgel, et al., Defendants-Appellees.

338 F.3d 662

Vester RUSSELL, Plaintiff-Appellant, v. CITY OF MILWAUKEE, City of Milwaukee Employees' Retirement System Annuity & Pension Board, Gary J. Brazgel, et al., Defendants-Appellees.

No. 02-2371.

United States Court of Appeals, Seventh Circuit.

Argued June 4, 2003.

Decided July 28, 2003.

Willie J. Nunnery (argued), Madison, WI, for Plaintiff-Appellant.

Maurita Houren (argued), Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants-Appellees.

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"). During the pendency of the action, Mr. Russell died. The district court then entered two scheduling orders setting forth the 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 discontinued. After unsuccessfully taking two intermediate administrative appeals, Mr. Russell further appealed the discontinuance 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 eventually 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 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 administrative 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 unexpectedly died on December 3, 2000 due to a brain aneurysm." Appellees' Br.App. at 103. The letter also explained that Ms. Russell had not retained Mr. Angermeier to represent 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 February 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 discovery deadline of June 1, 2001; and (3) a deadline for all dispositive motions of July 1, 2001. See R.14 at 1-2. Mr. 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 "Suggestion 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 affidavit, 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 discovery 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 discretion 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, "relying 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 dismissing 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).

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 triggered 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 contention 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." Fed.R.Civ.P. 5(a).¹ Rule 5(d) states: "All papers ... required to be served upon a party, together with a certificate of service, must be...