United States District Court, D. Colorado
ORDER TO SERVE STATEMENT OF DEATH AND THIS ORDER ON
PLAINTIFF'S SURVIVORS AND REPRESENTATIVES
William J. Martínez United States District Judge
Frank Lara filed this case on April 7, 2017, bringing a
single claim pursuant to the Federal Employers' Liability
Act, 45 U.S.C. §§ 51 et seq.
(“FELA”). (ECF No. 1.) Mr. Lara alleged that
while employed by Defendant from 1984 to 2014, and engaged in
the furtherance of interstate commerce within the meaning of
FELA, he was “exposed to various toxic substances and
carcinogens, ” which “caused or contributed to
his development of esophageal cancer.” (Id.
January 9, 2018, Defendant filed a Statement Noting Death
pursuant to Federal Rule of Civil Procedure 25(a)(3),
representing that Mr. Lara passed away on November 28, 2017.
(ECF No. 33.)
February 27, 2018, the Court issued an order denying
Plaintiff's unopposed Motion to Dismiss and
administratively closed the case (“the Order”).
(ECF No. 38.) In the Order, the Court directed
Plaintiff's counsel to deliver a copy of the Order to
each of Plaintiff's known beneficiaries, any
representatives of his estate, the Probate Registrar of Weld
County Combined Courts (Colo. 19th Jud. Dist.), and/or the
clerk of any other court with jurisdiction over Mr.
Lara's estate. (Id. at 4.) The Court also
directed Plaintiff's counsel to file a certificate of
service with this Court indicating that delivery was
April 28, 2018, the Court sua sponte ordered
Plaintiff's counsel to file a report on the status of the
service ordered in the February 27 Order, an update on
whether any beneficiary or representative planned to pursue
Plaintiff's FELA claim, and an explanation of the belated
docketing of the certificate of service. (ECF No. 39.)
14, 2018, Plaintiff's counsel filed a response to the
Court's April 28th order indicating that he had served
the Order on Mr. Lara's widow Phyllis Lara, daughter
Desiree Lara, and son Zachary Lara, as well as the Probate
Registrar of Weld County Combined Courts. (ECF No. 40 at 1.)
Plaintiff's counsel also stated that he had corresponded
with Mrs. Lara, who stated that she did not want to pursue
the action against Defendant. (Id. at 2.) He also
stated that he did not anticipate that Mr. Lara's
children would pursue the action because of the limited
recovery offered by FELA to non-dependent offspring.
(Id.) Plaintiff's counsel does not appear to
represent Mr. Lara's widow or Mr. Lara's adult
children. Nor does it appear that Plaintiff's counsel has
contacted Mr. Lara's adult children about continuing
Plaintiff's FELA claim.
Federal Rule of Civil Procedure 25, when a party dies and a
claim is not extinguished, a motion for substitution may be
made by any party or by the decedent's successor or
representative. Fed.R.Civ.P. 25(a)(1). A motion for
substitution must be made within ninety days after service of
a statement noting the death. Id. If a motion is not
made within ninety days, the action must be dismissed.
Tenth Circuit has interpreted Rule 25 to require service on
the successors or representatives of the deceased party's
estate in accordance with Rule 4.” Johnson v.
Thomas, 2013 WL 4461747 (D. Colo. Aug. 20, 2013);
see Grandbouche v. Lovells, 913 F.2d 835 (10th Cir.
1990) (holding that the ninety-day period under Rule 25(a)(1)
does not begin to run until the personal representative of a
decedent's estate is served with a statement of death).
The statement must be served “even if that
representative has not yet been identified or
appointed.” Hamilton v. Kemper, 2018 WL
1616808 (D. Colo. Apr. 4, 2018). Rule 25's requirement of
service on a personal representative can leave a case
“in a curious limbo, unable to meaningfully proceed
unless and until someone decides to seek appointment of a
personal representative.” Id. at *4. In
Hamilton, Chief Judge Marcia S. Kreiger of this
District recognized the potential quagmire created by Rule
25's plain language and the Tenth Circuit's
interpretation. Id. Judge Kreiger thus ordered the
remaining plaintiffs in that case to “take appropriate
action” to move the case along or risk dismissal for
failure to prosecute. Id.
instant litigation is administratively closed subject to
reopening for good cause shown. (ECF No. 38 at 4.)
Plaintiff's counsel has represented that Mrs. Lara is not
interested in pursuing the litigation, Mr. Lara's adult
children may not want to pursue the claim, and that no
personal representative will be appointed. (ECF No. 37 at 2;
ECF No. 40.)
interest of fairness to the parties and efficient use of
court resources, the Court will set a procedure for informing
all potentially interested persons consistent with Federal
Rule of Civil Procedure 25, officially confirming that no
person or representative plans to pursue Plaintiff's FELA
claim, and, if appropriate, dismissing the action. See
Matter of Baker, 744 F.2d 1438, 1441 (10th Cir. 1984)
(“[W]e are dealing with the matter most critical to the
court itself: management of its docket and avoidance of
unnecessary burdens on the tax-supported courts, opposing
parties or both.”).
given the foregoing, and considering the circumstances of
this case, the Court hereby ORDERS as follows:
Plaintiff's counsel is DIRECTED to deliver a copy of this
Order (ECF No. 41) and the Statement Noting Death of
Plaintiff (ECF No. 33) to each of Mr. Lara's known
beneficiaries; to the representative(s), if any, of Mr.
Lara's Estate; and to the Probate Registrar of Weld
County Combined Courts (Colo. 19th Jud. Dist.), and/or to the
clerk of any other court with jurisdiction over Mr.
Lara's estate by June 27, 2018. After
making such delivery, Plaintiff's counsel shall file a
certificate of service with this Court indicating that
delivery is complete within two weeks after said delivery
but, in any event, no later than July 11,
any eligible individual or representative intends to pursue
Plaintiff's FELA claims, that individual or
representative must file a motion for substitution under
Federal Rule of Civil Procedure 25(a)(1) or otherwise inform
the Court of their intention to pursue the matter within
ninety days of receiving this Order and the Statement Noting
Death of Plaintiff, but in any event no later than
October 9, 2018; and
no person files a motion for substitution under Federal Rule
of Civil Procedure 25(a)(1) or otherwise informs the Court of
an intention to pursue Plaintiff's FELA claims by October
9, 2018, the Court shall dismiss the case without prejudice
for lack of prosecution. If the Court receives a filing by
that date from any interested party indicating an interest in
pursuing Plaintiff's ...