United States District Court, D. Kansas
MEMEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
matter is before the court on the motion to dismiss brought
by the Estate of L.D. Davis (Dkt 1068), which argues that the
Estate was improperly substituted into the action following
the May 27, 2016 death of L.D. Davis. Davis had been named as
a defendant in this condemnation action because of his
ownership interest in oil and gas leases held by L.D.
Drilling Inc. On August 26, 2016, L.D. Drilling filed a
combined Suggestion of Death and Motion for Substitution,
which was subsequently granted by the Tenth Circuit, but the
Estate argues that any substitution under Fed.R.Civ.Pr. 25
was void, because the motion and notice of hearing were not
directly served on its personal representative.
Northern Natural Gas argues that this court is without
jurisdiction to resolve the Estate's motion. Further, it
argues that substitution should be deemed proper under the
facts of the case. In particular, Northern notes that the
Certificate of Service for the substitution pleading
indicates that it was mailed to Marilyn Davis as the
“personal representative of L.D. Davis.” It
further notes that counsel for the L.D. Group of defendants
has participated in associated litigation on behalf of
entities specifically including the Estate. See, e.g., N.
Nat. Gas Co. v. L.D. Drilling, Inc., No. 08-CV-1405 (D.
Kan.) (Dkt. 569, at 1) (L.D. Group pleading filed on behalf
of “Marilyn M. Davis, Executrix of L.D. Davis's
Estate, Probate No. 16-PR-70, District Court of Barton
court finds it is without jurisdiction to revisit the issue
of substitution. The issue was resolved while the case was on
appeal, and substitution was granted by order of the Tenth
Circuit on August 29, 2016. The Estate has supplied no
authority by which this court might revisit the issue.
even if the matter were properly before the court, the
Estate's motion would be denied. The circumstances of the
case strongly support the determination that no change
parties before the court be allowed. Such circumstances
include the lengthy delay during which the Estate failed to
challenge the order of substitution, and while it
participated in the litigation under representation by
counsel for the L.D. Group. Northern has presented
correspondence indicating that, after receiving the
Estate's motion to dismiss, it contacted counsel for the
L.D. Group, which responded:
In terms of the suggestion of death we filed, we understood
we had authority to file that motion. You are correct that
thereafter we filed pleadings on behalf of Marilyn Davis as
Executor of the LD Davis Estate as a part of what we referred
to as the “LD Drilling Group.” The record of
whatever we filed speaks for itself.
Reply, counsel for the Estate fails to directly controvert
any of the facts presented by plaintiff as to the earlier
representations by counsel for the L.D. Group that they were
acting on behalf of the Group and the Estate. Indeed, the
Estate carefully observes that it “is not necessarily
claiming that counsel for the L.D. Group acted without
authority when it filed its suggestion of death and motion
for substitution.” (Dkt. 1078, at 5). Instead, the
Estate seeks to focus solely on the narrow fact of a lack of
service on the effect of a failure to personally serve the
Executrix, relying the text of Rule 23 and on decisions such
as Ransom v. Brennan, 437 F.2d 513, 518 (5th Cir.
1982), which concluded that the “failure to properly
serve a motion to substitute in accordance with Rule 4
results in the court's lacking personal jurisdiction over
court has agreed with the conclusion in Ransom, and
observed that service on a decedent's attorney may not be
sufficient. “[I]f a defendant dies during a pending
lawsuit, plaintiff must serve a suggestion of death on all
parties and the personal representative of
decedent's estate-it is insufficient for plaintiff to
serve the attorney for the estate (even if the attorney for
the defendant is also the attorney for the defendant's
estate).” Sloan v. Overton, No.
08-2571-JAR-DRW, 2010 WL 398108, at *7 n. 60 (D. Kan. Jan.
25, 2010) (citing Ransom and Grandbouche v.
Lovell, 913 F.2d 835, 836-37 (10th Cir.1990)) (emphasis
this does not resolve the issue, since the failure to adhere
to the provisions of Rule 23 merely creates an affirmative
defense which can be waived. See Internat'l
Brotherhood of Teamsters v. Frontier Airlines, 2014
WL 12741117, *2 (D. Col. Sept. 16, 2014) (citing
Ransom, but concluding that allowing substitution
“because personal jurisdiction can be waived”);
In re Chiquita Brands, 2017 WL 5308031, *6 n. 9
(S.D. Fla. July 5, 2017) (finding Ransom was not
controlling as that case “did not involve a waiver of
the service requirements made through counsel”).
Estate avoids any suggestion that it did not know of the
substitution, nor has it made any showing that counsel for
L.D. Group acted without authority. Considering all the
circumstances in the case, the court finds that the issue of
substitution should not be revisited.
ACCORDINGLY ORDERED this 15th day of May, 2018, that the
Motion to Dismiss of the ...