PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10

- 2353

_____________

WARDELL LEROY GILES,

Appellant

v.

GARY CAMPBELL; ROBERT J. CASSASE; and

OFFICER CHARLES STEELE

_____________

On Appeal from the United States District Court

for the District of Delaware (No. 02

- cv

- 01674 ) District Judge: Hon. Sue L. Robinson

Argued April 10, 2012

Before: AMBRO, CHAGARES, and HARDIMAN

, Circuit Judges

.

(Filed: October 16, 2012 )

Thomas W. Hazlett, Esq. (argued) Carl A. Solano, Esq. Schnader Harrison Segal & Lewis

1600 Market Street

Sui te 3600 Philadelphia, PA 19103

Counsel for Appellant Wardell Leroy Giles2 Ryan P. Connell, Esq. (argued) Marc P. Niedzielski, Esq. Delaware Department of Justice

820 North French Street

Carve l Office Building, 6th Floor Wilmington, DE 19801

C ounsel for Appellees Gary Campbell, Robert J. Cassase and

Charles Steele

____________

OPINION

____________

CHAGARES, Circuit Judge

Wardell Leroy Giles appeals the District Court’s denial

of his motion to substitute Gary Campbell’s estate as a

defendant pursuant to Federal Rule of Civil Procedure 25(a). For the reasons that follow, we will vacate the District Court’s order and remand for further proceedings consistent with this opinion. .

I.

Giles was a prisoner s erving time in the Delaware penal system at all times pertinent to this appeal. Campbell was a sergeant at the Sussex Correctional I nstitution in Georgetown, Delaware. Giles brought excessive force and

deliberate indifference claims under 42 U.S.C. § 198 3 against

officers including Campbell based on a confrontation that occurred during Giles’s transfer to the Sussex Correctional

I nstitution on November 27, 2001, and against other defendants regarding his medical treatment after the incident

. Giles v. Kea rney , 571 F.3d 318, 323 (3d Cir. 2009). The specific allegations of the confrontation and Giles’s subsequent medical treatment are detailed in our prior opinion and are not necessary to our resolution of the issues currently on appeal. Id. at 323

- 24.3 O n June 28, 2004, the District Court granted summary judgment in favor of several defendants

, including Campbell,

on the basis that they were entitled to qualified i mmunity.

The District Court held a bench trial on Giles’s claim s against the remaining defe ndants and entered judgment in favor of

th ose defendants

.

Giles appealed and this Court reversed the District Court’s grant of summary judgment and remanded for trial.

Id. at 327

- 29

. On remand, on October 22, 2009, the Delaware Department of Justice ( “the Government”) , which had represented Campbell and continued to represent the other defendants whose case was revived on remand, filed a suggestion of death, informing the District Court that Campbell had died in July 2006. On December 14, 2009,

Giles moved under Federal Rule of Civil Procedure 25(a)(1) to substitute Wendy Selby, the administratrix of Campbell’s estate, as a defendant. Neither the suggestion of death nor the

motion to substitute was served on the estate. The District

Court denied the motion to substitute, holding that Giles’s claim was not pending under Delaware law and was therefore extinguished, and ordered Campbell’s name removed from the caption. Giles proceeded to trial against the remaining defendants and the jury found in favor of the de fendants.

Giles then filed this appeal. 1

II.

The District Court had subject matter jurisdiction

pursua nt to 28 U.S.C. §§ 1331 and 1343 . This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1291.

This Court reviews the Distr ict Court’s denial of Giles’s motion to substitute Campbell’s estate for abuse of

discretion. McKenna v. Pac. Rail Serv

. , 32 F.3d 820, 836

- 37 (3d Cir. 1994). However, t his Court exercises plenary review of the District Court’s interpretation s of the Fede ral Rules of

Civil Procedure and legal conclusions. Singletary v. Penn. Dep’t of Corrs

. , 266 F.3d 186, 193 (3d Cir. 2001); Barlow v.

Ground

1 We note with gratitude that Giles was r epresented in this matter by pro bono counsel

. , 39 F.3d 231, 233 (9th Cir. 1994)

.4 III.

Federal Rule of Civil Procedure 25(a) provides the procedure required fo r substitution after the death of a party :

(1) Substitution if the Claim Is Not Extinguished. If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the

decedent’ s successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.

(2) Continuation Among the Remaining Parties. After a party ’s death, if the right sought to be enforced survives only to or against the remaining parties, the action does not abate, but proceeds in favor of or against the remaining parties. The death should be noted on the

record.

(3) Service. A motion to subs titute, together with a notice of hearing, must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death

must be served in the same manner. Service may be made in any judicial district.

We address first the issue of whether Giles’s claim against Campbell was extinguished pursuant to Rule 25(a)(1) after Campbell’s death. Second, we address whether the District Court had personal jurisdiction over Campbell’s estate when it was not served by either p arty pursuant to Federal Rule of Civil Procedure 4, as was required by Rule 25(a)(3).

A.5 When a party to a lawsuit dies, the threshold consideration pursuant to Rule 25(a)(1) is whether the claim is extinguished.

The substantive law applied to deter mine whether a claim is extinguished is not supplied by Rule 25, because, as the Supreme Court has noted, Rule 25 “‘does not resolve the question [of] what law of survival of actions should be applied . . . . [It] simply describes the manner in which parti es are to be substituted in federal court once it is determined that the applicable substantive law allows the action to survive a party’s death.’” Robertson v. Wegmann , 436 U.S. 584, 587

n.3 (1978 ) (alterations and emphasis in original) (quoting

Robertso n v. Wegmann , 545 F.2d 980, 982 (5th Cir. 1977)).

The Supreme Court in Robertson held that pursuant to 42 U.S.C. § 1988, where federal law is “‘ deficient, ’” courts are
“to turn to ‘the common law

, as modified and change d by the

constitution and statut es o f the [forum] State,’ as long as these

are ‘not inconsistent with the Constitution and laws of the

United States.’” Id. at 588 (quoting § 1988). The Court in

Robertson noted that “ ‘ the survival of civil rights of action s under § 1983 upon the death of ei ther the plaintiff or

defendant ’ ” was an area not covered by federal law. Id. at
589 (quoting Moor v. County of Alameda , 411 U.S. 693, 702 n.14 (1973)) . In Robertson , the Louisiana survival statute allowed claims to survive only in favor of a spouse, chi ldren, parents or siblings. Id. at 587. The Supreme Court held that “[d]espite the broad sweep of § 1983, we can find nothing in the statute or its underlying policies to indicate that a state law causing abatement of a particular action should invariabl y be ignored in favor of a rule of absolute survivorship.” Id. at

590

- 91. The Supreme Court held that the “policies underlying § 1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acti ng under color of state law” and that the Louisiana survivorship laws were not inconsistent with th ose policies. Id. at 591.

In this case, it is undisputed that the forum state is

Delaware

, so the District Court properly examined

Delaware’s law of sur vivorship to determine whether Giles’s claim against Campbell was extinguished

. Under Delaware law, claims that arise before the death of the decedent are6 barred against the estate unless they are presented to the

estate within eight months of the death o f the decedent. Del. Code Ann. tit. 12, § 2102(a). However, Delaware law also provides that “[n]o presentation of claim is required in regard to matters claimed in proceedings against the decedent which

were pending at the time of the decedent’s death.” Id. § 2104(2) (emphasis added) . Like the Louisiana survival

statute at issue in Robertson , the Delaware survival scheme is

“not inconsistent with the Constitution and laws of the United

States

, ” and should apply in this case pursuant to § 1988.

Becau se Giles did not present his claim to the estate within eight months of Campbell’s death under § 2102(a), for his claim to survive, it must have been “pending” at the time of Campbell’s death under § 2104(2). The District Court

found that Giles’s claim wa s not pending at the time of Campbell’s death because it had granted summary judgment in Campbell’s favor and that decision had not yet been overturned by this Court.

The District Court relied on Swartz v. Meyers , 204 F.3d 417 (3d Cir. 2000)

, for the pr oposition that “[a]n action or suit is pending from either the filing of a complaint or

service of summons until the renditio n of a final judgment.” Appendix 5. However, the District Court erroneously concluded that the grant of summary judgment in Campb ell’s favor was a final judgment

. Swartz addressed the question of whether an appeal was “pending” to toll the statute of limitations for filing a federal habeas claim. Importantly,

Swartz held that “ ‘ pending ’ includes the time for seeking discretionary review, whether or not discretionary review is sought.” Id. at 421.

Applying Swartz to this case requires a finding that

Giles’s suit was still pending against Campbell. Giles could not appeal the summary judgment dismissing Campbell

, as it

was not a final order since there were remaining claims and defendants. Giles appealed the District Court’s summary judgment order at the earliest possible moment he could.

To hold otherwise would require Giles to have filed an interlocutory appeal of the Distr ict Court’s summary judgment ruling in order to protect his claim against7 Campbell from the possibility of Campbell’s death before the claims against the other parties were resolved. We have jurisdiction under 28 U.S.C. § 1291 to review a “final decision, ” which this Court has defined as “‘one which ends the litigation on the merits and leaves nothing for the court to do but execute judgment.’” Harris v. Kellogg Brown & Root Servs., Inc. , 618 F.3d 398, 400 (3d Cir. 2010) (quoting Catlin

v. United States

, 324 U.S. 229, 233 (1945)). This Court has explained that the goal of the finality rule is to avoid piecemeal litigation. Id. at 403. The District Court’s order granting summary judgment to Campbell was not a final

order because it terminated fewer than all the claims and parties. Morton Int’l, Inc. v. A.E. Staley Mfg. Co. , 460 F.3d 470, 476 (3d Cir. 2006); see also Fed. R. Civ. P. 54(b) (“[A] ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and

liab ilities of fewer than all the parties does not end the action

as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities. ”) (emphasis added); Del. Super . C t . R. 54(b) (same).

Since Giles’s claim against Campbell was pending under Delaware law at the time of Campbell’s death, no presentation of the claim was required, and the claim is not

barred under Delaware law. 2

2 The Government also argues that Giles’s claim against the

estate is time

- barred by Del. Code Ann. tit. 10

, § 8113, which extends the time to file a claim against an estate by six

months from the date of the decedent’s death if the time to file the action had not expired du ring the decedent’s lifetime. Section 8113 further provides that if a claim is filed within the proper time with the estate but is then rejected, the estate may not raise a statute of limit ations defense so long as the plaintiff commences an action within three months of being notified of the estate’s rej ection. Section 8113 is inapplicable

to this case and is aimed at claims that have not already been brought. This section deals with clai ms that “the time within

which the action could have been brought had not expired in the lifetime of the decedent” (emphasis added)

, and extends

the statute of limitations for those claims. Giles had already brought his claim against Campbell, and, as dis cussed above, Thus, Giles’s claim against8 Cam pbell was not extinguished by Campbell’s death and we will vacate the District Court’s decision to the contrary.

B.

We turn next to the question whether the District Court had personal jurisdiction over Campbell’s estate.

Rule 25(a)(3) requires tha t both the motion to substitute and the suggestion of death be served pursuant to Rule 5 for parties and pursuant to Rule 4 for nonparties. Campbell’s executrix, representing his estate, is a nonparty to Giles’s lawsuit and, thus, must have been served pu rsuant to
Rule 4. See Grandbouche v. Lovell , 913 F.2d 835, 837 (10th Cir. 1990) (holding that, under Rule 25, the service required

“ on nonparties, specifically the successors or repres entatives of the deceased party’ s estate, must be service pursuant to

F ed

. R. Civ. P. 4 ”); Ransom v. Brennan , 437 F.2d 513 , 518

- 19 (5th Cir. 1971) ; 7C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 1965 (3d ed. 2007) (“[T] he procedures of Rule 4 must be followed in serving the motio n on the representative or successor of a deceased party. ”). However, the Government failed to serve its suggestion of death on the estate pursuant to Rule 4 and

Giles likewise failed to serve his motion to substitute on the estate pursuant to Rule 4.

Giles argues that while he did not serve Campbell’s estate, his motion to substitute was nonetheless properly served because it was served upon “Campbell’s counsel.” Giles Letter Br. 1, Feb. 15, 2012. Indeed, t he Government

, which represented Campbell be fore his death, opposed Giles’s motion to substitute Campbell’s estate in District

Court and filed a brief in response to Giles’s opening brief in this appeal

.

Giles’s argument is foreclosed by our decision in Bass

v. Attardi

, 868 F.2d 45 (3d Cir. 1989 ) . In Bass

that claim was pending at Campbell’s death, so no presentation to the estate was required pursuant to § 2104(2). , a defendant (Carr) died during the pendency of the litigation and the attorney who had represented Carr contended that he9 continued to represent him. Id. at 50 n.12. The attorney in

Bass filed a suggestion of death on behalf of Carr (and

anot her deceased defendant), and argued that the case against Carr should be dismissed because the plaintiff did not timely

move to substitute the defendant’s estate. Id. We rejected the attorney’s arguments at the outset, because “[c]ounsel’ s attorney

- clien t relati onship with Carr ceased at Carr’ s death. ”

Id. ; see also Fariss v. Lynchburg Foundry , 769 F.2d 958, 962 (4th Cir. 1985) (“T he attorney’s agency to act ceases with the death of his client . . . and he has no power to continue or

terminate an action on his own initiative.”). 3 We concluded our analysis by noting that the suggestion of death “ was deficient because the suggestion was not served on the

decedents’ successors or representatives as required by Fed.

R. Civ. P. 2 5(a).” 868 F.2d at 50 n.12.

Applying Bass , we hold that the Government’s representation of Campbell ended when he died. We note that there is no evidence that the Government thereafter began representing Campbell’s estate. Accordingly, the parties were required to

— and failed to

— serve Campbell’s estate pursuant to Rule 4. We hold that the District Court lacked personal jurisdiction over the estate. See Ayres v. Jacobs & Crumplar, P.A. , 99 F.3d 565, 570 (3d Cir. 1996) (holding that personal jurisdiction is not conferred if serv ice under Rule 4 is not properly effected); Ransom , 437 F.2d at 519 (same).

Two cases from other Courts of Appeals support our

conclusion. In Ransom v. Brennan , the plaintiff filed a

breach of contract case in district court pursuant to the court’s

div ersity jurisdiction against defendant Brennan, who died during the pretrial stages. Id. at 515. Brennan’s counsel Kline suggested his death on the record and

, within ninety days, the plaintiff moved to substitute Brennan’s executrix.

Id. However, the p laintiff served the motion only on Kline

under Federal Rule of Civil Procedure 5, not on the executrix

under Rule 4. Id.

3 T he Bass court removed counsel for the deceased defendant

from the docket of the case as representing him, since the

defenda nt had died. 868 F.2d at 50 n.12. We will do the same and list the Government as representing only Cassase

and Steele. The district c ourt granted the motion to10 substitute, but several months later the executrix, through Kline, moved to dismiss for lack of personal jurisdiction. Id. at 516. The district court held it had jurisdiction over the executrix because Brennan had been validly served, so it was unnecessary to “reacquire” jurisdiction over the substituted

party. Id. The Court of Appeals for th e Fifth Circuit

examined Rules 4 and 5 and reversed, holding that while Rule

5 is “ clerical and administrative in nature ” and applies to

papers filed after the complaint, Rule 4 is “ jurisdictionally

rooted .” Id. at 516

- 17. S ervice under Rule 5 , therefore

, cannot be substituted for service under Rule 4. Id. at 518

. The Ransom court rejected the plaintiff’s argument that Kline’s subsequent appearance on behalf of the estate and the

fact that the executrix had actual notice meant that the service requireme nts in Rule 25(a)(3) could be relaxed. Id. at 519. 4

The court concluded that the district court lacked personal jurisdiction over the executrix, id. , and, thus, reversed the district court’s grant of the motion to substitute. Id. at 522.

Similarly, i n Atkins v. City of Chicago

, 547 F.3d 869, 874 (7th Cir. 2008 ) , the Court of Appeals for the Seventh

Circuit held that

[t]he case law makes clear that with the inapplicable exception [of where the opposing party files the suggestion of death and does not know who the successor is]

, notice to the lawyers, service on the lawyers, knowledge of

all concerned

— nothing will suffice to start the

90

- day clock running except service on

4 We likewise reject the Government’s argument that Giles ’s comment during the November 2006 bench trial that he had “heard” Campbell h ad died, Trial Tr. 32

- 33 vol. A, November 29, 2006, meant that Giles had actual notice of Campbell’s death. Rule 25(a)(3) requires service on nonparties pursuant to Rule 4, so Giles’s knowledge, or lack thereof, of Campbell’s death does not affect our ana lysis. In addition, we note that the Government continued to represent Campbell throughout the bench trial and first appeal in this case without filing a suggestion of death on the record and then failed to serve its suggestion of death on the estate when it did file the suggestion on remand.11 whoever is identified as the decedent’s representative or successor.

The At kins court went on to hold that a motion to substitute filed without serving the personal representative of the

decease d plaintiff’s estate was “a nullity.” Id.

Because neither the Government nor Giles served the estate pursuant to Rule 4, we will trea t their filings as nullities, s ee Atkins , 547 F.3d at 874 , and conclude that the District Court lacked personal jurisdiction over the estate. Thus, we will vacate the District Court’s denial of Giles’s

motion to substitute and remand for Giles to have an opportunity to refile his motion to substitute and serve the

estate. 5

IV.

For the foregoing reasons, we will vacate the District Court’s order and remand for further proceedings consistent with this opinion.

5 We note that if the Government refiles its suggestion of death and serves the estate pursuant to Rule 4, it would trigger the ninety

- day time limit set forth in Rule 25(a)(1).

See Barlow , 39 F.3d at 233

- 34 (“[W]e hold that the 90 day period provided by Rule 25(a)(1) will not be triggered against Barlow’s estate until the appropriate representative of the estate is served a suggestion of death in the manner provided by Federal Rule of Civil Procedure 4.”); Grandbou che , 913

F.2d at 836

- 37 (10th Cir. 1990) (holding that service of the suggestion of death on counsel for the deceased plaintiff was insufficient because Rule 25 required personal service on the estate, as a nonparty, and so the ninety

- day limit in Rule 25( a)(3) had not begun to run) ; Rende v. Kay , 415 F.2d 983,

985

- 86 (D.C. Cir. 1969) (holding a suggestion of death filed by the attorney of the deceased client that did not name his widow, who was the executrix of his will, was not sufficient to trigger the n inety

- day period for filing a motion to substitute under Rule 25(a)(1)).