Ransom v. Brennan

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Docket Number

Civ. A. 67-H-256

Motions

Motion to dismiss : Denied Defendant

Attorney(S)

          Jake Johnson, Houston, Tex., for plaintiff.           Ronald C. Kline, of Bracewell & Patterson, Houston, Tex., for defendants.

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Smart Summary

Factual and Procedural Background

This diversity action, filed April 4, 1967, arises from an alleged breach of an oral contract. Plaintiff is a citizen of Texas and the original defendant was a citizen of Alabama. During the pendency of the suit the original defendant died. The defendant's attorney filed a suggestion of death on the record under Rule 25(a)(1), Fed.R.Civ.P. Plaintiff timely moved to substitute the deceased defendant's executrix under Rule 25(a)(1); the Court granted the motion and process was served upon the defendant's attorney in the manner provided by Rule 5, Fed.R.Civ.P. The substituted defendant (the executrix) moved to dismiss the case for lack of jurisdiction and for failure to state a claim upon which relief can be granted. The District Court (Singleton, J.) denied the motion.

Legal Issues Presented

Whether the court has personal jurisdiction over the substituted party (the executrix) where substitution under Rule 25(a)(1) was effected and service was made under Rule 5.
Whether service under Rule 5, Fed.R.Civ.P., constitutes sufficient notice to invoke the Alabama revivor statute (Section 215, Title 61, Alabama Code) so as to toll the six-month presentation requirement applicable to claims against an estate.
Whether the question of the sufficiency of service for purposes of the Alabama revivor statute is governed by federal or state law (i.e., whether Federal Rules control adequacy of service or the state statute controls).

Arguments of the Parties

Defendant's Arguments

The Court lacks personal jurisdiction over the substituted party (the executrix) because service under Rule 5 is insufficient; the executrix should have been personally served.
Service under Rule 5 is not sufficient notice under the Alabama revivor statute (Section 215, Title 61), which requires presentation of claims within six months after the grant of letters; because statutes of limitation are substantive in diversity cases, Alabama law should govern this question (the defendant cites Guaranty Trust Co. v. York).

Plaintiff's Position

Plaintiff filed the motion of substitution under Rule 25(a)(1) within the time required and served process upon the defendant's attorney in the manner provided by Rule 5, and did so within the six-month period prescribed by the Alabama statute.
Plaintiff does not ask the Court to extend or shorten the six-month period prescribed by Alabama law; rather, plaintiff contends the Rule 5 service effectuated under the federal substitution procedure is sufficient.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bertsch v. Canterbury, 18 F.R.D. 23 (S.D.Cal.1955)	Explains that Rule 25(a)(1) provides for substitution and that substitution does not by itself supply in personam jurisdiction if it had not previously been acquired; if in personam jurisdiction existed over the original party, it continues over the substituted party.	The Court relied on Bertsch to conclude that, because no contention was made that the Court lacked jurisdiction over the original defendant, the in personam jurisdiction continued over the substituted executrix and the defendant's jurisdictional contention was rejected.
Commercial Solvents Corp. v. Jasspon, 92 F.Supp. 20 (S.D.N.Y.1950)	Cited as additional authority concerning substitution and jurisdictional effects under Rule 25.	Used as supporting authority alongside Bertsch for the proposition that substitution does not itself create in personam jurisdiction where none previously existed and that existing jurisdiction continues over a substituted party.
Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231 (1945)	Establishes that statutes of limitation are substantive matters and that in diversity cases state law on such matters governs.	The defendant invoked York to argue Alabama's six-month statute should control; the Court acknowledged York's principle but explained the real question was the sufficiency of service (a procedural matter), not whether to apply the Alabama limitation period itself.
Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965)	Holds that adequacy of service of process is to be determined by the Federal Rules rather than state law where the Federal Rules apply; addressed conflict between federal procedure and a state revivor statute.	The Court relied on Hanna to hold that the question of sufficiency of service for purposes of reviving the claim is governed by the Federal Rules; because the method of service employed was sufficient under federal substitution procedure (Rule 25(a)(1) and Rule 5), it also sufficed to satisfy the Alabama revivor requirement.

Court's Reasoning and Analysis

The Court divided its analysis into two parts.

I. Jurisdiction

The defendant argued that service under Rule 5 did not confer personal jurisdiction over the executrix and that the executrix should have been personally served. The Court examined controlling authority (Bertsch and Commercial Solvents) and noted the governing principle: Rule 25(a)(1) provides for substitution and the substitution procedure does not itself create in personam jurisdiction where it did not previously exist; conversely, if in personam jurisdiction had been acquired over the original party, that jurisdiction continues over the substituted party. Because the defendant made no contention that the Court lacked jurisdiction over the original defendant, the Court concluded that jurisdiction over the substituted executrix continued and rejected the defendant's jurisdictional argument.

II. Failure to State a Claim Upon Which Relief Can Be Granted (Alabama Revivor Statute)

The defendant argued that Rule 5 service was insufficient notice under Section 215, Title 61, Alabama Code (which treats revival of a pending action by notice served on the executor within six months after the grant of letters as presentation of the claim), and that statutes of limitation are substantive matters governed by state law in diversity cases (citing Guaranty Trust Co. v. York). The Court agreed that York correctly states that statutes of limitation are substantive and ordinarily governed by state law, but it explained that the specific question before the Court concerned the sufficiency of the method of service to effect the revivor, not whether the six-month period should be applied.

The Court then identified the controlling law on whether the adequacy of service is governed by federal or state law. Relying on the Supreme Court's decision in Hanna v. Plumer, the Court held that adequacy of service of process is to be determined by the Federal Rules where those rules apply. Because the substitution and service in this case were effected under the Federal Rules (Rule 25(a)(1) and Rule 5), and plaintiff served the executrix under Rule 5 well within the six-month period, the service met the Federal Rules' requirements and therefore satisfied the Alabama revivor provision for presentation of the claim.

Holding and Implications

Holding: The Court denied the defendant's motion to dismiss. DENIED.

Implications and direct effects:

The substitution of the executrix was timely and, under the Federal Rules as applied by the Court, service made under Rule 5 in connection with the Rule 25 substitution procedure was sufficient to satisfy the Alabama revivor statute's presentation requirement (§ 215, Title 61).
As a direct consequence, the executrix remains a proper substituted party defendant and the case proceeds; the defendant's challenges on jurisdictional and revivor grounds were rejected.
The opinion applies existing federal authority (Hanna) to resolve a conflict between federal procedural rules and a state revivor statute; the Court did not purport to announce a new rule of law beyond the application of those authorities to the facts presented.

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Bill RANSOM v. Frances Hugh BRENNAN et al.

Memorandum and Order

SINGLETON, District Judge.

This cause was filed on April 4, 1967. Plaintiff seeks to recover damages for breach of an oral contract. Jurisdiction is based on diversity; plaintiff is a citizen of Texas and defendant is a citizen of Alabama. During the pendency of the suit, however, defendant died. After defendant's attorney filed a suggestion of death upon the record under Rule 25(a)(1), Fed.R.Civ.P., plaintiff timely filed his motion of substitution of the executrix of the deceased defendant under the same rule. The Court granted the motion and process was served upon defendant's attorney in the manner provided by Rule 5, Fed.R.Civ.P. The case is now before the Court on defendant's motion to dismiss for want of jurisdiction and for failure to state a claim upon which relief can be granted.

I. Jurisdiction .

Defendant contends that the Court does not have personal jurisdiction over the substituted party, the executrix. It is contended that service under Rule 5 is insufficient and that the executrix should have been personally served. Defendant's contention is not supported by the cases. Bertsch v. Canterbury, 18 F.R.D. 23 (S.D.Cal.1955) involved a suit between a citizen of California and a citizen of Oklahoma which had been removed to Federal District Court. Plaintiff never acquired personal jurisdiction over the defendant and during the pendency of the suit defendant died. Plaintiff substituted defendant's Oklahoma executor under Rule 25(a). This was allowed, but a question arose as to whether the Court had acquired in personam jurisdiction over the executor. Although the Court responded in the negative, the opinion sets forth guidelines for resolution of the jurisdictional question in the present case.

The Court said:

‘ We conclude that Rule 25(a)(1), F.R.C.P., provides for substitution of a party and that service of notice on the parties is required only for the purpose of such substitution; that if in personam jurisdiction has been previously acquired of the original party, then the in personam jurisdiction continues over the substituted party; that if no in personam jurisdiction had been acquired over the original party, then the substitution of a new party under Rule 25(a)(1), F.R.C.P. does not supply in personam jurisdiction to proceed with the action but only places the substituted party in the same position as the original party, i. e., a party to the action, but one who must be still served with process to secure in personam jurisdiction over him.’ Bertsch v. Canterbury, supra, at 27. See also, Commercial Solvents Corp. v. Jasspon, 92 F.Supp. 20 (S.D.N.Y.1950).

Defendant makes no contention that this Court lacked jurisdiction over the original party, thus his contention that the Court lacks jurisdiction over the substituted party must be rejected.

II. Failure to State a Claim Upon Which Relief Can Be Granted .

This contention of the defendant is a little more involved. He contends that even if service of the executrix under Rule 5 is sufficient to invoke the jurisdiction of this Court, it is not sufficient notice under the Alabama statute dealing with the revival of claims against an estate. Section 215 of Title 61 of the Alabama Code provides:

‘ § 215. When revival of suit a presentation .— The revival of any action pending against any person at the time of his death, which by law survives against his personal representative, by notice served on the executor or administrator, within six months after the grant of letters, shall be considered as a presentation of the claim on which the action is founded.’

Section 211 of the same code provides for the barring of claims not presented within the six month period. Thus the provisions are in effect a statute of limitations.

Defendant contends that statutes of limitation are substantive matters and in diversity actions the state law must govern. He cites Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231 (1945). Defendant is correct, but he misconstrues the problem. The problem is not whether to apply the Alabama statute of limitation, but rather whether notice under Rule 5 is sufficient. Plaintiff served the executrix under Rule 5 well within the six month period required by the Alabama statute. The Alabama statute remains intact; plaintiff asks the Court neither to extend nor reduce the six month period.

The only question that remains is with regard to the sufficiency of the service of process. Is the answer to this question governed by Federal or State law? The recent Supreme Court case of Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), is in point. It held that the question of adequacy of service of process was to be determined by the Federal Rules not state law. Hanna also involved a state revivor statute, which provided for a method of notice which conflicted with the federal procedure. Since the method of service employed in the present case is sufficient under federal substitution procedure, Rule 25(a)(1), Fed.R.Civ.P., defendant's claim that it is insufficient to toll the Alabama statute must be rejected.

Therefore, for the reasons set forth above, it is ordered, adjudged, and decreed that defendant's motion to dismiss be, and it is hereby, denied.