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

Suite 3600

Philadelphia, PA 19103

Counsel for Appellant Wardell Leroy Giles
2

Ryan P. Connell, Esq. (argued)

Marc P. Niedzielski, Esq.

Delaware Department of Justice

820 North French Street

Carvel Office Building, 6th Floor

Wilmington, DE 19801

Counsel 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 serving time in the Delaware 

penal system at all times pertinent to this appeal. Campbell 

was a sergeant at the Sussex Correctional Institution in 

Georgetown, Delaware. Giles brought excessive force and 

deliberate indifference claims under 42 U.S.C. § 1983 against 

officers including Campbell based on a confrontation that 

occurred during Giles’s transfer to the Sussex Correctional 

Institution on November 27, 2001, and against other 

defendants regarding his medical treatment after the incident. 

Giles v. Kearney, 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

On 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 immunity. 

The District Court held a bench trial on Giles’s claims against 

the remaining defendants and entered judgment in favor of 

those 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 defendants. 

Giles then filed this appeal.1

 

II.

The District Court had subject matter jurisdiction 

pursuant 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 District 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, this Court exercises plenary review 

of the District Court’s interpretations of the Federal 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 represented 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 for 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 substitute, 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 party 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 determine 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 parties 

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

Robertson 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 changed by the 

constitution and statutes of 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 actions

under § 1983 upon the death of either 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, children, 

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 invariably 

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 acting under color of state law” and that the 

Louisiana survivorship laws were not inconsistent with those

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 survivorship to determine whether Giles’s 

claim against Campbell was extinguished. Under Delaware 

law, claims that arise before the death of the decedent are 
6

barred against the estate unless they are presented to the 

estate within eight months of the death of 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. 

Because 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 was 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 proposition that “[a]n action 

or suit is pending from either the filing of a complaint or 

service of summons until the rendition of a final judgment.” 

Appendix 5. However, the District Court erroneously 

concluded that the grant of summary judgment in Campbell’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 District Court’s summary 

judgment ruling in order to protect his claim against 
7

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 

liabilities 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. Ct. 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 during 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 limitations defense so long as the 

plaintiff commences an action within three months of being 

notified of the estate’s rejection. Section 8113 is inapplicable 

to this case and is aimed at claims that have not already been 

brought. This section deals with claims 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 discussed above, 

Thus, Giles’s claim against 
8

Campbell 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 that 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 pursuant 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 representatives 

of the deceased party’s estate, must be service pursuant to 

Fed. 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 motion 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, the Government, 

which represented Campbell before 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 he 
9

continued to represent him. Id. at 50 n.12. The attorney in 

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

another 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-client relationship with Carr ceased at Carr’s death.” 

Id.; see also Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 

(4th Cir. 1985) (“The 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. 25(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 service 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 

diversity 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 plaintiff served the motion only on Kline 

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

under Rule 4. Id.

 

3

 The Bass court removed counsel for the deceased defendant 

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

defendant 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 court granted the motion to 
10

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 the 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. Service 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 

requirements 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, in 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 had 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 analysis. 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 Atkins court went on to hold that a motion to substitute

filed without serving the personal representative of the 

deceased plaintiff’s estate was “a nullity.” Id.

Because neither the Government nor Giles served the 

estate pursuant to Rule 4, we will treat their filings as 

nullities, see 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.”); Grandbouche, 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 ninety-day period for filing a motion to 

substitute under Rule 25(a)(1)).