United States District Court, S.D. Mississippi, Southern Division
ORDER GRANTING DEFENDANT DAVID KILGORE'S MOTION
TO DISMISS 
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant David Kilgore's
Motion to Dismiss  filed September 29, 2016. Having
considered the Motion, the record, and relevant legal
authority, the Court finds that the Motion should be granted.
April 7, 2015, Plaintiff Warren Lovite Lewis
(“Plaintiff”), an inmate housed at the Federal
Medical Center in Butner, North Carolina, filed his pro se
Complaint  pursuant to 42 U.S.C. § 1983. On January
21, 2016, Defendant David Kilgore (“Defendant”)
filed, as a matter of record, a Suggestion of Death  as
to Plaintiff, and attached a copy of the “Certificate
of Death” [16-1] of Plaintiff Warren Lovette Lewis.
March 20, 2016, Defendant filed his first Motion to Dismiss
 asserting that, pursuant to Rule 25 of the Federal Rules
of Civil Procedure, the Court should dismiss the litigation
because there had been no response to Defendant's
Suggestion of Death of Plaintiff  filed January 21, 2016.
In denying that Motion  without prejudice, the Court
found that Defendant had not served the Motion on the
deceased-plaintiff's estate, in accordance with Rule 4.
Order  at 1-2; see Sampson v. ASC Industries,
780 F.3d 679, 683 (5th Cir. 2015); see also Fed. R.
Civ. P. 4, 25(a)(3).
27, 2016, Defendant filed a second Motion to Dismiss 
re-urging the dismissal of this matter. In support of his
Motion, Defendant attached: (1) a copy of Plaintiff's
Death Certificate, Exhibit “A” [20-1], reflecting
that Plaintiff was buried in Lumberton, Lamar County,
Mississippi; (2) a copy of a letter from the Chancery Clerk
of Lamar County, Mississippi, Exhibit “B” [20-2],
reflecting that as of May 5, 2016, no estate had been opened
for Plaintiff; and (3) a copy of a letter sent to
Plaintiff's daughter Gayle Frizzell, as identified in
Exhibit “A, ” asking if an estate had been opened
for Plaintiff, Exhibit “C” [20-3]. Defendant
argued that, based upon the response from the Chancery Clerk
of Lamar County and the lack of response from Plaintiff's
daughter, Defendant could not locate an estate and therefore
this matter should be dismissed. Mot.  at 1-3.
Alternatively, Defendant alleged that this matter should be
dismissed “for failure to prosecute” premised
upon the theory that the burden to discover this pending
matter was that of “Ms. Frizzell or some family member
of the deceased Plaintiff.” Mot.  at 2, ¶14.
2, 2016, Defendant filed his Supplemental Motion to Dismiss
 advising the Court that he had received a response from
Ms. Frizzell on June 2, 2016, and asserting that Defendant
would “serve the Estate” with a copy of the
Suggestion of Death once defense counsel was informed of the
“name and address of the court where the estate was
opened and the name and case number for the estate.”
Suppl. Mot.  at 1.
denying the second Motion to Dismiss  without prejudice,
the Court found that although Defendant had not yet located
an estate upon which to serve process, Defendant had located
Plaintiff's daughter who appeared to be an heir-at-law
and potential “representative” of the late
Plaintiff, and upon whom Defendant could have served notice
in accordance with Rule 4. See Fed. R. Civ. P. 4.
Instead of serving Ms. Frizzell, Defendant elected to write
Ms. Frizzell a letter asking only if an estate had been
opened, without providing any information concerning this
matter or the style of this case. See Exhibit
“C” [20-3] at 1. Defendant cited no authority to
support the position that the letter to Ms. Frizzell
satisfied the requirements of Rule 25, or that the letter was
sufficient to trigger the 90-day period for filing a motion
to substitute the Plaintiff.
September 29, 2016, Defendant filed the present Motion to
Dismiss  asserting in pertinent part that he had served
Plaintiff's daughter, Gayle Frizzell, with the Suggestion
of Death  as follows:
On June 25, 2016, process server Calvin E. Hullett served
Gayle Frizzell, daughter of Plaintiff Warren Lovite Lewis,
deceased, with a copy of the “SUGGESTION OF DEATH OF
PLAINTIFF WARREN LOVITE LEWIS” [Doc. 16] by leaving a
copy with Ms. Frizzell's adult son, CagneyAllen Frizzell,
at Ms. Frizzell's residence, and Mr. Hullett then mailed
a copy of the Suggestion of Death to Ms. Frizzell at her last
known address, 295 Eastside Road, Burns, TN. [Doc. 24 at 1,
Mot. to Dismiss  at 1. Defendant further asserts that
over 90 days have elapsed since the June 25, 2016, service on
Ms. Frizzell and, since she has not entered an appearance in
this matter or otherwise moved to substitute the Plaintiff,
the matter should be dismissed. Id. at 1-2.
Court noted in its prior Order , the Fifth Circuit has
held that personal service on a nonparty alerts the nonparty
to the consequences of death for a pending suit and signals
to the nonparty the need for action to preserve the claim if
Personal representatives of a deceased-plaintiff's estate
are non-parties that must be personally served under Rule 25.
Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994)
(“[T]he suggesting party must serve other parties and
nonparty successors or representatives of the deceased with a
suggestion of death in the same manner as required for
service of the motion to substitute. Thus, a party may be
served the suggestion of death by service on his or her
attorney, Fed.R.Civ.P. 5(b), while non-party successors or
representatives of the deceased party must be served the
suggestion of death in the manner provided by Rule 4 for the
service of a summons.”) (emphasis added) (internal
citation omitted); Fariss v. Lynchburg Foundry, 769
F.2d 958, 961 (4th Cir. 1985) (“Where, as here, a
personal representative has been appointed following the
death of a party, the suggestion of death must be personally
served on that representative.”). “Personal
service of the suggestion of death alerts the nonparty to the
consequences of death for a pending suit, signaling the need
for action to preserve the claim if so desired.”
Fariss, 769 F.2d at 962.
Service of the notice of death on the personal representative
for a deceased-plaintiff's estate is generally required,
even where it is difficult to determine who the personal
representative is. Id. (“In some instances, it
may prove more difficult to determine whom to serve, but it
is generally appropriate to require the serving party to
shoulder that burden, rather than permitting the absence of
notice to decedent's representative to lead to forfeiture
of the action.”). Service on the attorney for the
plaintiff-decedent's estate will not suffice as service
on the estate. Grandbouche v. Lovell, 913 F.2d 835,
837 (10th Cir. 1990) (holding that even though the attorney
for the decedent's estate was noticed, the successor or
representatives of the deceased-party's estate were
required to be noticed as well).
Sampson, 780 F.3d at 681 (emphasis added); see
Ransom v. Brennan, 437 F.2d 513, 519 (5th Cir. 1971)
(“Assuming the executrix had such actual notice [of the
Suggestion of Death], which plaintiff infers she must have
had, it would not operate as a substitute for
process.”); see also Fariss, 769 F.2d at 962
(the burden is on the shoulder of the serving party rather
than allowing ...