United States District Court, E.D. Louisiana
ORDER AND REASONS
WELLS ROBY, CHIEF UNITED STATES MAGISTRATE JUDGE.
the Court is a Motion for Substitution of Party under
Federal Rule of Civil Procedure 25(a)(1) (R.
Doc. 66) filed by Ana Christine Shelton in her
capacity both as the Natural Tutrix of minor children S.A.
and T.A. as well as the Independent Administratrix of the
Succession of Nelson Arce (“Shelton”) seeking to
be substituted in place of Nelson Arce, who has died. The
motion is not opposed. The motion was submitted on August 9,
2017. For the following reasons, the motion is
action was originally filed in the District Court on August
22, 2016 by Nelson Arce and his Father, Larzaro Arce. The
Plaintiffs filed this action asserting claims that the
Defendants violated their rights under Title II of the
Americans with Disabilities Act and Section 504 of the
Rehabilitation Act. R. Doc. 1. Plaintiff Nelson Arce has
passed away. R. Doc. 66-1, p. 2; 66-2, p. 2. At this time
then, Shelton has filed the instant motion to be substituted
as plaintiff in the place of Nelson Arce in her as the
Natural Tutrix of Arce's minor children S.A. and T.A. and
as the Independent Administratrix of the Succession of Nelson
Arce. R. Doc. 66-1, p. 2.
Standard of Review
Federal Rule of Civil Procedure 25(a)(1): “[i]f a party
dies and the claim is not extinguished, the court may order
substitution of the proper party. . .[which] may be made by
any party or by the deceased successor or
representative.” “Under [Rule] 25, the surviving
spouse must either notify the Court that the estate has been
distributed without being filed for probate, or she must
become appointed executrix of decedent's estate.”
Hanover Ins. Co. v. White Kitchen Square, Ltd., No.
93-1826, 1994 WL 151094, at *1 (E.D. La. Apr. 12, 1994).
Accord, Ashley v. Ill. C. Gulf. R. Co., 98 F.R.D.
722, 723 (S.D.Miss. 1983) (“Unless the estate of a
deceased party has been distributed at the time of the making
of the motion for substitution, the ‘proper' party
for substitution would be either the executor or
administrator of the estate of the deceased.”).
time then, Shelton has filed the instant motion to be
substituted as plaintiff in the place of Nelson Arce. R. Doc.
66. Before turning to whether Shelton is the proper party to
be substituted in the place of Nelson Arce, the Court notes
that there appears to be a split among the Circuits as to how
to determine if claims arising under the ADA or the RA
survive the death of a party. In particular, some Courts take
the position that 42 U.S.C. § 1988(a) is applicable to
ADA and RA claims, and, as such, those Courts look to the
relevant state survival statute. See, e.g., Hutchinson ex
rel. Baker v. Spink, 126 F.3d 895 (7th Cir.1997)
(stating that “state law governs the survival of
statutory civil rights actions like the ADA claim” as
well as a Section 1983 claim); see also Cardella v.
C.V.S. Caremark Corp., No. 08-1656, 2010 WL 1141393, at
*1 & n.1 (N.D. Tex. Mar. 25, 2010) (noting that
“the Fifth Circuit recently applied 42 U.S.C. §
1988(a), which directs courts to apply state common law where
there are legislative gaps in the remedies provided for
certain types of civil rights violations” but citing
disagreement with that approach). Other Courts find that
§ 1988(a) is inapplicable and, therefore, apply federal
common law to determine if the ADA and RA claims survive.
See, e.g., Kettner v. Compass Group USA, Inc., 570
F.Supp.2d 1121, 1126-1133 (D. Minn. 2008).
the Petitioner urges the Court to adopt the approach that
applies the federal common law, the Court need not decide the
more appropriate approach at this time. Nelson Arce's
claims survive under the federal common law, which allows for
the survival of claims that are remedial in nature. See
Kettner, 570 F.Supp.2d at 1134 (quoting Estwick v.
U.S. Air Shuttle, 950 F.Supp. 493, 498 (E.D.N.Y.1996))
(“noting that under the Federal common law only
‘actions which are penal in nature do not survive the
death of party, ' and the ADA ‘has been held to be
remedial in nature.'”). Similarly, his claims
survive under Louisiana's survival statute which allows
for the survival of all claims of damages for a period of one
year following the death of the deceased. La. Civ. Code. Ann.
art. 2315.1(A) (“If a person who has been injured by an
offense or quasi offense dies, the right to recover all
damages for injury to that person, his property or otherwise,
caused by the offense or quasi offense, shall survive for a
period of one year from the death of the deceased”);
cf. Bell v. Foster Wheeler Energy Corp., 2017 WL
979023, at *1 n.1 (E.D. La. Mar. 13, 2017) (Africk, J.)
(“The Louisiana Civil Code provides for the survival of
tort claims without qualification.”).
regardless of the approach, Shelton is the proper party to be
substituted as the natural tutrix of Nelson Arce's
surviving minor children and the administratrix of his
estate. See Fed. R. Civ. P. 25(a)(1) (“motion
for substitution may be made by any party or by the
decedent's successor or representative”);
Fed.R.Civ.P. 17(1) (“The following may sue in their own
names without joining the person for whose benefit the action
is brought: (A) an executor; (B) an administrator; (C) a
guardian…”); La. Civ. Code. Ann. art.
2315.1(A)(1) (noting that action survivies “in favor
of… [t]he surviving spouse and child or children of
the deceased, or either the spouse or the child or
IT IS ORDERED that Motion for
Substitution of Party under Federal Rule of Civil Procedure
25(a)(1) (R. Doc. 66) is GRANTED.
IS FURTHER ORDERED that Ana Christine Shelton in her
capacity both as the Natural Tutrix of minor children SA. and
T.A. as well as the Independent Administratrix of the
Succession of ...