United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motion to Dismiss Pursuant
to Fed.R.Civ.P. 25(a)(1) [Docket No. 40] filed by defendant
Wells Fargo Bank, N.A. (“Wells Fargo”). The Court
has jurisdiction pursuant to 28 U.S.C. §§ 1331 and
filed this lawsuit in the District Court for Adams County,
Colorado on September 20, 2017 asserting various state and
federal claims arising out of defendants' alleged
wrongful foreclosure on her home. Docket No.
Wells Fargo removed the case to federal court on November 3,
2017. Docket No. 1. On January 5, 2018, Wells Fargo filed a
suggestion of death notifying the Court of the record of
plaintiff's death on December 18, 2017. Docket No. 34.
Wells Fargo avers that it served plaintiff's adult
daughter, Jenna Eckerman, with the suggestion of death on
January 10, 2018 by leaving a copy of the filing with her
manager and supervisor, Dennis Anderson, at her place of
employment. Docket No. 39; Docket No. 40 at 2, ¶ 5.
After no person purporting to be a successor or personal
representative of plaintiff filed a motion for substitution
within the 90-day period prescribed by Fed.R.Civ.P. 25(a)(1),
Wells Fargo filed the instant motion to dismiss the lawsuit.
Docket No. 40.
Fed.R.Civ.P. 25(a)(1), if a motion for substitution is not
made by a decedent's successor or representative
“within 90 days after service of a statement noting the
death, the action by or against the decedent must be
dismissed.” The 90-day period under Rule 25(a)(1)
begins to run when the statement noting death is
“served on the parties as provided in Rule 5 and on
nonparties as provided in Rule 4.” Fed.R.Civ.P.
25(a)(3); see also Hamilton v. Kemper, No.
17-cv-00882-MSK-STV, 2018 WL 1616808, at *2 (D. Colo. Apr. 4,
2018). Although Rule 25 does not identify the nonparties who
must be served, courts in the Tenth Circuit have interpreted
the rule “to require the party suggesting death to
serve that suggestion on the decedent's successors or
representatives.” Hamilton, 2018 WL 1616808,
at *2 (collecting cases); see also Grandbouche v.
Lovell, 913 F.2d 835, 837 (10th Cir. 1990) (“While
service of a suggestion of death on counsel will satisfy the
requirement of Rule 25(a)(1) for service of parties to the
litigation, the service required by Rule 25(a)(1) on
nonparties, specifically the successors or
representatives of the deceased party's estate, must
be service pursuant to Fed.R.Civ.P. 4.” (emphasis
added)). Such an interpretation is consistent with the
majority rule that “the suggestion of death must be
served on the decedent's estate or personal
representative, even if that representative has not yet been
identified or appointed.” Hamilton, 2018 WL
1616808, at *2; see also Sampson v. ASC Indus., 780
F.3d 679, 682 (5th Cir. 2015) (joining “the Fourth,
Seventh, Ninth, and Tenth Circuits in holding that when a
plaintiff dies, in order for the ninety-day deadline to run
under Rule 25, the suggestion of death must have been
personally served on the deceased-plaintiff's
January 19, 2018, Wells Fargo filed an affidavit of service
indicating that the suggestion of death was served on
plaintiff's adult daughter, Jenna Eckerman, on January
10, 2018. Docket No. 39. Wells Fargo contends that serving
Ms. Eckerman triggered the 90-day period under Rule 25(a)(1).
Docket No. 40 at 2, ¶¶ 5-6. However, apart from
Wells Fargo's averment that Jenna Eckerman is
plaintiff's adult daughter, see, e.g., Docket
No. 40 at 2, ¶ 5, Wells Fargo has not presented evidence
establishing Jenna Eckerman's relationship with
plaintiff, explained its efforts to identify the personal
representative of plaintiff's estate, or provided any
basis for a conclusion that Jenna Eckerman is a
“successor or representative” of plaintiff's
estate. Additionally, although the affidavit of service filed
on January 19, 2018 indicates that Wells Fargo served Ms.
Eckerman by leaving a copy of the suggestion of death with
her supervisor at The Raleigh House, Docket No. 39, Wells
Fargo has not established that The Raleigh House is Jenna
Eckerman's “usual workplace.” Colo. R. Civ.
P. 4(e)(1) (permitting personal service “by leaving a
copy thereof at . . . the person's usual workplace, with
the person's supervisor, secretary, administrative
assistant, bookkeeper, human resources representative or
managing agent”); see also Fed. R. Civ. P.
4(e)(1) (providing that an individual may be served “in
a judicial district of the United States by . . . following
state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the
district court is located or where service is made”).
Given these deficiencies, Wells Fargo has not shown that
dismissal is warranted under Fed.R.Civ.P. 25(a)(1). See
Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir.
1985) (“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.”
(internal citations omitted)). Wherefore, it is
that, on or before June 26, 2018, Wells
Fargo shall file a supplemental brief, not to exceed five
pages, explaining its efforts to identify the personal
representative of plaintiff's estate and why the January
10, 2018 service of the suggestion of death on Jenna Eckerman
was sufficient to trigger the 90-day period under
Plaintiff named Wells Fargo Home
Mortgage, Inc. and America's Servicing Company as
defendants in this case; however, defendant Wells Fargo Bank,
N.A. has indicated that those entities are d/b/as of Wells
Fargo Bank, N.A. See, e.g., Docket No. 40 at 1. All