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 1367.
proceeding pro se, filed this lawsuit in the
District Court for Adams County, Colorado on September 20,
2017. Docket No. 5 at 2. Plaintiff's complaint asserts
various state and federal claims in connection with
defendants' alleged wrongful foreclosure on her home.
Id.; see also Docket No. 20 at 5
(construing complaint to assert various claims for relief
under state and federal law). On November 22, 2017, Wells
Fargo filed a motion to dismiss the complaint for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).
Docket No. 20. On January 5, 2018, defendants filed a
Suggestion of Death [Docket No. 34], notifying the Court of
the record of death of plaintiff on December 18, 2017. Docket
No. 34. Wells Fargo served plaintiff's adult daughter,
Jenna Eckerman, on January 10, 2018 by leaving a copy of the
Suggestion of Death with her manager and supervisor, Dennis
Anderson. Docket No. 39; Docket No. 40 at 2, ¶ 5. Wells
Fargo filed an affidavit of service on January 19, 2018.
Docket No. 39. On April 19, 2018, Wells Fargo moved to
dismiss the case under Federal Rule of Civil Procedure
25(a)(1). Docket No. 40. On June 14, 2018, the Court ordered
Wells Fargo to file a supplemental brief “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 Fed.R.Civ.P.
25(a)(1).” Docket No. 45 at 4. Wells Fargo filed its
supplemental brief on June 26, 2018. Docket No. 46.
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). Rule 25 does not identify the nonparties who must be
served; however, 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)). While Rule 25 provides the proper procedure for
substitution of parties, “state law governs
who can be a ‘representative' or
‘successor.'” In re Baycol Prods.
Litig., 616 F.3d 778, 785 (8th Cir. 2010); see also
Rodriguez v. Hefflefinger, 2017 WL 784859, at *3 (E.D.
Cal. Feb. 28, 2017) (finding that service of notice of death
on plaintiff's wife was sufficient under Rule 25(a)(1)
because plaintiff's wife was the successor in interest to
plaintiff's claims under California law). Colorado law
defines “successors” as “persons other than
creditors, who are entitled to property of a decedent under
his or her will or [the probate code].” Colo. Rev.
Stat. § 15-10-201(51). Under Colo. Rev. Stat. §
15-11-103, the property of someone who dies intestate without
a surviving spouse or designated beneficiary will pass first
“[t]o the decedent's descendants per capita at each
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. In its supplemental brief, Wells
Fargo states that it spoke with Jenna Eckerman on June 15,
2018, who “confirmed that: (i) she is Plaintiff's
sole heir; (ii) she believed her mother may have had a will,
but none had been located; (iii) no probate proceeding for
her mother's estate had been commenced; (iv) no personal
representative had been appointed; and (v) she had received a
copy of the Suggestion of Death Wells Fargo filed.”
Docket No 46 at 3, ¶ 9. Wells Fargo further avers that
plaintiff was predeceased by her husband and unmarried at the
time of her death. Id. at 4.
on the foregoing, the Court finds that Jenna Eckerman is
plaintiff's “successor” for purposes of Rule
25(a). See Tucker v. Social Sec. Admin, 2006 WL
2540391, at *1 (D. Kan. Mar. 16, 2006) (finding that service
was completed, as required under Rule 25, where no probate
estate had been opened on behalf of deceased plaintiff and
defendants served plaintiff's daughter and heir with the
suggestion of death). The Court further finds that Ms.
Eckerman was properly served with the suggestion of death on
January 10, 2018. See Docket No. 39. Rule 25(a)(3)
provides that a statement noting death must be served
“on the parties as provided in Rule 5 and on nonparties
as provided in Rule 4.” Fed.R.Civ.P. 25(a)(3). Because
Ms. Eckerman is a nonparty, she was required to be served in
the manner set forth in Rule 4. Under Rule 4(e)(1), an
individual may be served according to the law of the state in
which the district court is located - in this case, Colorado.
Colo. R. Civ. P. 4(e)(1) permits personal service upon an
individual “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.” A
signed affidavit of service constitutes prima facie evidence
of valid service under these rules. See Li Cheng v. Sushi
Aji, Inc., No. 17-cv-01732-MEH, 2017 WL 4772817, at *2
(D. Colo. Oct. 23, 2017).
January 19, 2018, Wells Fargo filed a signed affidavit
stating that the suggestion of death was personally served on
Dennis Anderson, Ms. Eckerman's
“manager/supervisor” at The Raleigh House. Docket
No. 39. In its supplemental brief, Wells Fargo states that
The Raleigh House was listed as Ms. Eckerman's place of
employment on her Facebook page and that Dennis Anderson
“did not disclaim [Ms. Eckerman's]
employment” when he accepted service of the suggestion
of death. Docket No. 46 at 5. Moreover, Ms. Eckerman
acknowledged that she received a copy of the suggestion of
death filed by Wells Fargo. Id. at 3, ¶ 9.
these facts and the signed affidavit of service, the Court
concludes that Ms. Eckerman was properly served on January
10, 2018, thereby triggering the 90-day period under Rule
25(a)(1). Although that period expired on April 10, 2018,
neither Ms. Eckerman nor anyone purporting to be a successor
or representative of plaintiff's estate has filed a
motion for substitution. Wells Fargo is therefore entitled to
dismissal under Rule 25(a)(1).
that the Motion to Dismiss Pursuant to Fed.R.Civ.P. 25(a)(1)
[Docket No. 40] is GRANTED. It is further
that Wells Fargo Bank, N.A.'s Motion to Dismiss [Docket
No. 20] is DENIED as moot. It is further
that this case is closed.