Rule 25’s 90-Day Clock Runs Absent a Successor/Representative, and Unserved Defendants Cannot Be Dismissed With Prejudice

1. Introduction

This intra-family inheritance dispute arose from allegations by Jeevan Malhotra that members of his extended family acted in concert to prevent him from receiving an inheritance interest connected to the “Moti Mahal Hotel” in India. Malhotra alleged that relatives gave false testimony and used a fraudulent 2015 sales deed and a fraudulent will (or misstatements about whether a will existed) to defeat his expected inheritance.

The appeal presented multiple procedural and pleading issues typical of complex, multi-defendant civil litigation: (i) substitution after a party’s death under Federal Rule of Civil Procedure 25; (ii) plausibility and particularity standards for fraud-based claims under Rules 8 and 9(b); (iii) the dependency of civil conspiracy on an actionable underlying tort; (iv) amendment deadlines and leave-to-amend requirements under Rules 15 and 16; (v) conflict-of-laws principles governing real property located abroad; and (vi) the jurisdictional limits on entering a dismissal “with prejudice” against an unserved defendant.

2. Summary of the Opinion

3. Analysis

A. Precedents Cited (and How They Drove the Result)

1) Substitution on death and Rule 25 service

• Silas v. Sheriff of Broward Cnty., Fla., 55 F.4th 872 (11th Cir. 2022)
  Role in the opinion: This was the controlling framework for when Rule 25’s 90-day clock begins and whom the suggesting party must serve. The panel relied on Silas for two core propositions:
  1. The suggesting party must look to state law to identify and notify the decedent’s “representative or successor” before the 90-day period begins; and
  2. If the decedent lacks a legal successor/representative, Rule 25 does not require service on nonparties who lack legal authority to substitute.
  Practical effect: Malhotra’s argument that nonparty Anand Kumar Dhull needed to be served failed because the record did not show Anand was Ajit’s successor or representative; family ties and power-of-attorney concepts did not supply post-death representative authority.
• Lizarazo v. Miami-Dade Corr. & Rehab. Dep't, 878 F.3d 1008 (11th Cir. 2017)
  Role: Provided the standard of review (de novo) for interpretation of the Federal Rules of Civil Procedure, reinforcing that the appellate court would independently evaluate the Rule 25 question.
• Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949 (11th Cir. 2009)
  Role: Used to reject Malhotra’s attempt to raise “excusable neglect” only after judgment; motions to reconsider/alter/amend cannot be used to raise arguments that could have been presented earlier.
• Albra v. Advan, Inc., 490 F.3d 826 (11th Cir. 2007)
  Role: Anchored the principle that pro se litigants must follow procedural rules, undercutting any equitable plea for relaxed application of Rule 25 deadlines.

2) Pleading standards: plausibility and fraud particularity

• Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)
  Role: Provided the baseline Rule 8 plausibility standard and rejection of “labels and conclusions.” The panel applied these to characterize Malhotra’s allegations—especially “knowledge” and “scheme” allegations—as conclusory.
• Hill v. White, 321 F.3d 1334 (11th Cir. 2003)
  Role: Supplied the de novo review standard for Rule 12(b)(6) dismissals and the rule that allegations are construed in the plaintiff’s favor—yet still insufficient here.
• Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283 (11th Cir. 2010) and Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364 (11th Cir. 1997) and Ambrosia Coal & Constr. Co. v. Pages Morales, 482 F.3d 1309 (11th Cir. 2007)
  Role: These cases operationalize Rule 9(b) for fraud: the “who, what, when, where, and how,” plus individualized notice in multi-defendant cases. They were decisive: Malhotra did not specify who made the alleged “no will” statement, where/when it occurred, or each defendant’s role.
• Fed. R. Civ. P. 9(b) (as quoted and applied)
  Role: The panel acknowledged that mental states may be alleged generally, but still required factual content supporting inferences of knowledge/intent—content missing from the complaint.
• Campbell v. Air Jam., Ltd., 760 F.3d 1165 (11th Cir. 2014)
  Role: Used in two ways: (i) courts cannot rewrite deficient pleadings for pro se parties, and (ii) allegations can be rejected where logically or temporally impossible. The panel used this to highlight the timeline problem: powers of attorney issued in May 2024 could not have induced Malhotra to refrain from contesting a probate proceeding that ended in April 2024.

3) Amended complaints and what counts as the operative pleading

• Reynolds v. Behrman Cap. IV L.P., 988 F.3d 1314 (11th Cir. 2021) and Hoefling v. City of Miami, 811 F.3d 1271 (11th Cir. 2016)
  Role: Foreclosed Malhotra’s attempt to rely on alleged inconsistencies between dismissal orders; the third amended complaint superseded prior pleadings, making earlier pleadings “a legal nullity.”

4) Civil conspiracy requires an underlying wrong

• Raimi v. Furlong, 702 So. 2d 1273 (Fla. 3d DCA 1997)
  Role: Provided the dispositive Florida rule: no actionable conspiracy without an actionable underlying tort. Because Counts 1 and 2 failed, Count 3 failed. The court also rejected Malhotra’s attempt to point to other “wrongs” (defamation, slander of title, interference) that were not pleaded as causes of action.

5) Amendment deadlines, leave to amend, and scheduling orders

• Fed. R. Civ. P. 15(a) and Fed. R. Civ. P. 16(b) (as quoted and applied)
  Role: Provided the rule structure: after the “as of right” period, amendments require consent or leave; scheduling orders set amendment deadlines and require good cause plus judge consent to modify. Malhotra added unjust enrichment after the deadline without leave.
• Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232 (11th Cir. 2009)
  Role: Provided the non-exhaustive factors justifying denial of leave (undue delay, repeated failure to cure, prejudice, futility). The panel endorsed the district court’s refusal to retroactively bless the late-added claim.

6) Conflict of laws: real property is governed by the law of the situs

• Colonial Life & Accident Ins. Co. v. Hartford Fire Ins. Co., 358 F.3d 1306 (11th Cir. 2004)
  Role: Restated the Erie principle that a federal diversity court applies the forum state’s conflict-of-laws rules—here, Florida’s.
• In re Est. of Nicole Santos, 648 So. 2d 277 (Fla. 4th DCA 1995)
  Role: Supplied the Florida conflicts rule that the law of the situs governs real property. Because the hotel is in India, Indian law governs the deed claim.
• Hughes v. Pro. Ins. Corp., 140 So. 2d 340 (Fla. 1st DCA 1962) and Royal Oak Landing Homeowner's Ass'n, Inc. v. Pelletier, 620 So.2d 786 (Fla. 4th DCA 1993)
  Role: These contract-interpretation cases were invoked to reject Malhotra’s attempt to treat a power of attorney like a contract capable of “reclassifying” real property into personal property by intent. The panel emphasized that a power of attorney is a grant of authority, not a bilateral contract meeting traditional formation requirements.

7) Dismissal with prejudice, docket management, and the limit of personal jurisdiction

• Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333 (11th Cir. 2005)
  Role: Supported two points: (i) the abuse-of-discretion standard and the district court’s inherent power to manage its docket (supporting dismissal with prejudice as to served defendants after repeated failed amendments), and (ii) the remedy of vacatur/remand where “with prejudice” dismissal improperly included unserved defendants.
• Bryant v. Dupree, 252 F.3d 1161 (11th Cir. 2001)
  Role: Confirmed that while pro se plaintiffs generally should get at least one chance to amend before a with-prejudice dismissal, repeated failure to cure deficiencies permits dismissal with prejudice. The court treated Malhotra’s multiple amendments and prior admonitions as satisfying this standard.
• Pardazi v. Cullman Med. Ctr., 896 F.2d 1313 (11th Cir. 1990)
  Role: Provided the jurisdictional rule: without service of process, the court lacks personal jurisdiction over the defendant. This was the key authority requiring reversal as to Anand.
• Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498 (11th Cir. 1990)
  Role: Confirmed that dismissal with prejudice functions as a final judgment on the merits—making it improper against a party over whom the court lacked personal jurisdiction due to non-service.

B. Legal Reasoning (Issue-by-Issue)

1) Rule 25: suggestion of death, substitution, and the 90-day deadline

The panel treated the Cousin Defendants’ Suggestion of Death as sufficient to trigger Rule 25(a)(1)’s 90-day dismissal mechanism because Ajit Kumar “lacked a successor or representative” for Rule 25 service purposes. Applying Silas v. Sheriff of Broward Cnty., Fla., the court rejected the notion that a financially interested relative or a power-of-attorney holder automatically qualifies as the post-death representative/successor who must be served. Because Malhotra did not timely move to substitute (or even move to extend the deadline), dismissal of Ajit was affirmed.

The court also enforced litigation sequencing: “excusable neglect” was raised too late (only in a post-judgment motion), and under Wilchombe v. TeeVee Toons, Inc. such motions are not vehicles for arguments that could have been raised earlier.

2) Fraudulent misrepresentation (Count 1) and fraud (Count 2): plausibility plus Rule 9(b)

Even assuming Florida law, the court found Malhotra’s fraud-based claims failed at the pleading stage. For fraudulent misrepresentation, the complaint asserted knowledge in a conclusory way (e.g., claiming the Cousin Defendants “knew” Ramesh signed blank papers) without factual allegations supporting how they knew it, whether they were present, or how they participated. Under Twombly/Iqbal, such labels are insufficient; and Rule 9(b) still requires the circumstances of fraud to be stated with particularity.

For the “no will” fraud theory, the complaint failed the “who/what/when/where/how” requirements emphasized in Am. Dental Ass'n v. Cigna Corp., Brooks v. Blue Cross & Blue Shield of Fla., Inc., and Ambrosia Coal & Constr. Co. v. Pages Morales. The court also identified a fatal temporal defect: documents issued after the probate proceeding concluded could not have induced Malhotra’s forbearance in that concluded proceeding, making the inducement element implausible (Campbell v. Air Jam., Ltd.).

3) Civil conspiracy (Count 3): dependent liability

Florida conspiracy doctrine, as cited via Raimi v. Furlong, is derivative: without an actionable underlying tort or wrong, there is no civil conspiracy claim. Because the underlying fraud-based claims were dismissed, the conspiracy claim necessarily fell. The panel also rejected Malhotra’s attempt to rely on unpleaded tort labels (defamation, slander of title, interference) as “independent torts” supporting conspiracy; conduct is not the same as a properly pleaded cause of action.

4) Unjust enrichment (Count 4): amendments require leave and compliance with the scheduling order

The panel affirmed dismissal of unjust enrichment on procedural grounds: Malhotra added the claim after the amendment deadline and without obtaining leave of court under Rule 15(a)(2), and without showing “good cause” to modify the scheduling order under Rule 16(b)(4). The court endorsed the district court’s refusal to grant leave retroactively, invoking Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc. and its factors (delay, repeated failures, and related concerns).

5) Deed invalidity and conflict of laws: situs controls

On the claim attacking the 2015 sales deed under Florida law, the panel applied Florida’s conflict-of-laws rule for real property: the law of the situs governs (In re Est. of Nicole Santos). With the hotel located in India, Indian law controlled. Malhotra’s attempt to reclassify the hotel as “personal property” based on party intent failed for lack of supporting authority and because a power of attorney is not a contract in the relevant sense (reinforced by the contract-construction authorities Hughes v. Pro. Ins. Corp. and Royal Oak Landing Homeowner's Ass'n, Inc. v. Pelletier).

6) Dismissal with prejudice: permissible as to served defendants, impermissible as to unserved Anand

As to the served defendants, dismissal with prejudice was affirmed as a proper exercise of docket management (Betty K Agencies, Ltd. v. M/V MONADA) after repeated opportunities to cure (consistent with Bryant v. Dupree).

But the district court “lacked the authority” to dismiss with prejudice as to Anand Kumar Dhull because he was never properly served. Under Pardazi v. Cullman Med. Ctr., service is jurisdictional for personal jurisdiction. And because Citibank, N.A. v. Data Lease Fin. Corp. treats a with-prejudice dismissal as a merits judgment, the appellate court required vacatur and remand with instructions to reenter dismissal without prejudice as to Anand.

C. Impact

• Clear procedural guardrails in multi-party, pro se litigation: The decision underscores that courts will enforce substitution deadlines, amendment rules, and pleading standards even where the plaintiff is pro se (Albra v. Advan, Inc.; Campbell v. Air Jam., Ltd.).
• Rule 25 practice point: The opinion reinforces (via Silas v. Sheriff of Broward Cnty., Fla.) that the 90-day clock can run from a suggestion of death where no legal successor/representative exists; parties opposing dismissal must promptly move to substitute or extend.
• Fraud claims remain “front-loaded”: The court’s reliance on Am. Dental Ass'n v. Cigna Corp., Brooks v. Blue Cross & Blue Shield of Fla., Inc., and Ambrosia Coal & Constr. Co. v. Pages Morales reiterates that fraud theories must be pleaded with defendant-by-defendant specificity, particularly in family disputes where suspicion may be high but admissible facts may be thin at filing.
• Foreign real-property disputes in Florida federal court: The situs rule application signals that litigants cannot easily “Florida-law” their way into challenging conveyances of foreign realty; they must prepare to plead and prove foreign law or pursue relief in a forum with direct authority over the property.
• Jurisdictional limit on “with prejudice” orders: The remand instruction provides a practical safeguard: unserved parties should not be subjected to a merits-preclusive judgment. This matters for claim-preclusion risk and for strategic behavior in multi-defendant cases.

4. Complex Concepts Simplified

• “Suggestion of Death” (Rule 25): A filing notifying the court that a party has died. If no substitution motion is made within 90 days after proper service, the claims against the decedent must be dismissed.
• “Successor or representative”: Not simply a family member or someone with a financial interest; it typically means a legally recognized estate representative (often an executor/administrator) or a party legally authorized to step into the decedent’s shoes.
• Rule 12(b)(6) and plausibility: A complaint must allege enough factual detail to make liability a reasonable inference, not merely a suspicion (Twombly/Iqbal).
• Rule 9(b) (fraud particularity): Fraud must be pleaded with specifics—who said what, when, where, how it misled, and what defendants gained—so defendants have fair notice and can prepare a defense.
• Civil conspiracy (Florida): Conspiracy is not a standalone wrong; it requires an underlying actionable tort. If the underlying tort is not pleaded or fails, conspiracy fails too.
• “With prejudice” vs. “without prejudice”: With prejudice is a merits-ending dismissal that can bar refiling; without prejudice leaves the claim theoretically refilable. Courts cannot enter with-prejudice merits judgments against defendants over whom they lack personal jurisdiction due to non-service.
• Situs rule (real property): Legal disputes about land are governed by the law where the land is located. A Florida court applying Florida conflicts principles will apply foreign law to foreign real property.

5. Conclusion

This decision chiefly establishes (and forcefully applies) two procedural principles: (1) Rule 25’s 90-day substitution deadline can be triggered by a suggestion of death where the deceased party lacks a legally cognizable successor/representative requiring service, and failure to timely substitute warrants dismissal; and (2) a district court cannot dismiss claims with prejudice against an unserved defendant because lack of service defeats personal jurisdiction, and a with-prejudice dismissal is a merits judgment.

Along the way, the Eleventh Circuit reaffirmed strict adherence to Rule 9(b) in fraud pleading, the derivative nature of civil conspiracy under Florida law, disciplined enforcement of amendment and scheduling-order rules, and Florida’s situs-based conflict rule for real property abroad. The net result was a near-total affirmance—except for the jurisdictional correction requiring a without-prejudice dismissal as to the unserved defendant Anand Kumar Dhull.