Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

SANDAGE v. BOARD OF COMMISSIONERS (November 24, 2008)

Sheena Sandage-Shofner twice called the sheriff’s department in Vanderburgh County and complained that a man named Moore was harassing her. Moore was in the sheriff’s custody, serving a prison term for robbery. Sandage-Shofner’s complaints arose at times when Moore was out of prison on work release. Two days after her second complaint, Moore murdered Sandage-Shofner and two other people and then took his own life. Christine Sandage and Arthur Shofner brought a suit under § 1983, claiming that the County’s failure to reimprison Moore deprived their decedents of their lives without due process in violation of the Fourteenth Amendment. The district court dismissed for failure to state a claim. Sandage and Shofner appeal.

In their opinion, Chief Judge Easterbrook and Judges Posner and Rovner affirmed. Relying principally on the Supreme Court’s decision in DeShaney, the Court held that there is no federal constitutional duty to protect the citizenry from private violence, nor is there a right to be rescued from a danger that was not created by the government. There is a right not to be harmed, a right illustrated, for example, by prisoner cases alleging deliberate indifference to medical needs. Here, the Court concluded, the government did not restrict Sandage-Shofner’s access to aid and it took no affirmative steps that increased the danger to Sandage-Shofner. It simply failed in its moral obligation to protect its citizens from private harm, for which there is no federal constitutional remedy.

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KAHN v. UNITED STATES (November 20, 2008)

Shahid Khan was a partner in several investment entities. The IRS was investigating Kahn and his wife because of its belief that the Kahns had sheltered hundreds of millions of dollars from income taxes. The IRS agent assigned to the case issued summonses to Robert Greisman, an accountant and tax shelter expert with whom Khan and his wife had met on several occasions. The Kahns had paid Greisman over $8 million dollars but, according to an IRS affidavit, they could not identify what services he provided. The Kahns filed petitions to quash the subpoenas on a number of grounds. The IRS opposed the petitions and also filed a motion to enforce the summonses. The agent’s affidavit accompanying the motion stated that the purpose of the summonses was to quantify the Kahns’ tax liability. The Kahns opposed the motion on the ground that 26 U.S.C. § 7602(d)(1) prohibited the summons because the IRS did not disclose whether the IRS had referred Greisman to the Justice Department. The district court agreed, and quashed the summons. The IRS appeals.

In their opinion, Judges Flaum, Rovner, and Wood reversed. The Court first recognized the broad power of the IRS to issue summonses. Section 7602(d)(1) provides, however, that “[n]o summons may be issued . . . with respect to any person if a Justice Department referral is in effect with respect to such person.” The Kahns argued that the summonses were issued "with respect to" Greisman and were therefore not allowed if Greisman had been referred to the Justice Department.  The IRS, on the other hand, argued that the summonses were issued "to" Greisman but "with respect to" the Kahns since it was the Kahns' tax liability at issue. The Commissioner of the IRS has promulgated a regulation supporting the IRS'ition.  The regulation interprets the section to apply only when there is a Justice Department referral of the person whose tax liability is at stake. The Court approached the “question of first impression” under the Chevron two-part analysis. Under Chevron, the Court will uphold or strike a regulation if it is supported or opposed, respectively, by the plain meaning of the pertinent statute. If the statute is silent or not clear, the Court will determine in a second step whether the regulation is a reasonable interpretation of the statute. The Court will uphold it if it is. With respect to the plain meaning of § 7602(d)(1), the Court was attracted to the arguments of both parties. Having found their two competing interpretations both plausible, the Court necessarily found ambiguity in the statute. In its second step analysis, the Court found the Commissioner’s regulation consistent with the statute, as well as the legislative history, and a reasonable interpretation of it. As long as the Kahns were not referred to the Justice Department (which they were not), the summons to Greisman can be enforced.
 

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BREGIN v. LIQUIDEBT SYSTEMS, INC. (November 19, 2008)

Donald Bregin was employed as an accounts receivable collector for North American Van Lines, Inc. (“NAVLI”) until the late 1990s. Later, he was a consultant for SIRVA , NAVLI’s parent. In this role, Bregin was involved in NAVLI’s efforts to outsource its collection services. In fact, Bregin took part in negotiations that resulted in a contract between NAVLI and Liquidebt Systems, Inc. (“LSI”), under which LSI would perform those collection services. Bregin was also instrumental in determining the standards under which LSI’s performance would be measured. The parties agreed that SIRVA would evaluate LSI’s performance on how quickly receivables were collected. LSI stood to gain or lose $150,000 depending on whether it was able to show a 10% increase compared to prior years.  LSI hired Bregin away from SIRVA to head up LSI’s delivery of services to NAVLI. Before Bregin left SIRVA, he authored a report that concluded that SIRVA’s accounts receivable were overstated because they included amounts that should be refunded to customers. LSI was not able to meet the agreed performance goal. Bregin believed that SIRVA’s accounting practices were to blame. He reported his concerns to LSI’s management. LSI’s president had Bregin’s complaints evaluated to determine their validity. He discovered that LSI was performing so poorly that it would be subject to the penalty even if SIRVA changed its accounting practices. Bregin was removed from the SIRVA account but initially kept on at LSI. He was eventually fired in December of 2003. Bregin brought suit under Indiana law against LSI and SIRVA, alleging that LSI fired him in retaliation for his reporting the SIRVA accounting practices and that SIRVA tortiously interfered with his employment. The district court granted summary judgment to LSI and SIRVA. Bregin appeals.

In their opinion, Judges Posner, Flaum, and Evans affirmed. The Court noted that the Indiana Supreme Court has recently affirmed its adherence to the employment-at-will doctrine. Under the employment-at-will doctrine, an employer and employee can each terminate an employment relationship for any (or no) reason. The Court observed that Indiana did recognize some narrow exceptions. Bregin relied on the McClanahan exception, based on a case in which the Indiana Supreme Court allowed a cause of action for a truck driver who was fired when he refused to haul an illegal load. The act would have subjected him to personal criminal liability. The Court concluded that Bregin’s claim did not fit the exception. Bregin did not identify any criminal act he was asked to perform. Bregin also asked the Court to recognize a new exception for “whistle-blowers.” The Court rejected his request, noting that an Indiana appellate court had rejected the exception in 1980 in a case in which a “vigorous dissent” raised the same argument for the exception.

With respect to Bregin’s allegation that SIRVA tortiously interfered with his employment, the Court was critical of Bregin’s vague articulation of his claim. The Court conceded that SIRVA complained to LSI about Bregin. It also noted, however, that LSI was not meeting its performance goals and was unresponsive to SIRVA’s requests for information. SIRVA’s complaints to LSI were therefore justified and did not support a claim of tortious interference. In addition, LSI’s president testified that he alone made the decisions to remove Bregin from the SIRVA account and to fire him. Bregin cannot make out a case of tortious interference.

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SCOTT AIR FORCE BASE PROPERTIES, LLC v. COUNTY OF ST. CLAIR (November 14, 2008)

Scott Air Force Base Properties, LLC (“Scott”) entered into a 50-year lease with the United States for property located on Scott Air Force Base. The lease was entered into pursuant to the Military Housing Privatization Initiative (“MHPI”), under which private companies can lease military land for the purposes of constructing, maintaining, and operating rental housing for military personnel. The County of St. Clair, in which the property is located, added the leaseholds to its tax rolls and assessed an ad valorem tax on each parcel. Scott filed a suit for a declaratory judgment that the leasehold interest and all transactions under the MHPI were exempt from state taxation. Scott asserted that the assessment violated the U.S. Constitution, federal law, and state law. The district court dismissed for lack of subject matter jurisdiction because of the Tax Injunction Act (“TIA”). Scott appeals.

In their opinion, Judges Ripple, Manion, and Sykes affirmed. The Court stated that the TIA bars federal jurisdiction of any suit in which the relief sought would reduce state tax revenue. It prevents both injunctive and declaratory relief. It applies even where the basis of the relief sought is a constitutional claim. The bar is expressly conditioned, added the Court, on the availability of a “plain, speedy, and efficient remedy” in state court. Scott has the burden of demonstrating the failure of the state remedy under the TIA test. Here, the Court found that Scott was clearly seeking to avoid paying state taxes. The TIA applied unless an adequate remedy was not available to Scott in the Illinois courts. Scott only challenged the “efficiency” of the Illinois remedy. Scott asserts that the Illinois remedy does not meet the TIA test because it requires that Scott pursue both an exemption application and a valuation protest. The Court rejected the argument, while conceding that a more efficient procedure might exist than the one provided by Illinois. The TIA does not require the most efficient remedy. The Court also noted that Scott will be able to raise its constitutional and federal statutory challenges to the tax in state court. Given a remedy in state court that meets the TIA test, the Court agreed that it lacked subject matter jurisdiction.

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MCKINNEY v. CADLEWAY PROPERTIES, INC. (November 13, 2008)

Versia McKinney’s sewer backed up in her Chicago home in 1996 and caused substantial damage. McKinney took out a disaster assistance loan of $5200 from the Small Business Administration (“SBA”). At some point, McKinney stopped making payments on the loan. The SBA sold the loan. It eventually was sold to Cadleway Properties, Inc. (“Cadleway”). Cadleway sent McKinney a letter in September 2004. The letter informed McKinney that Cadleway had purchased the debt and that McKinney should make payments to Cadleway. The back of the letter contained a “Validation of Debt Notice” intended to comply with the Fair Debt Collection Practices Act (the “Act”). The notice stated that: a) McKinney owed $4,370.02, b) McKinney had 30 days to tell Cadleway that she disputed the debt, and c) Cadleway would assume the debt was valid if McKinney did not so dispute. At the bottom of the form, McKinney was asked to confirm the amount of the balance as stated by Cadleway or to state what she believed to be the correct balance. McKinney filed an action against Cadleway alleging that the notice letter violated the Act. She only sought statutory damages and attorney’s fees. The court below held that: a) the obligation was a “debt” under the Act, b) Cadleway was a “debt collector” under the Act, and c) the notice letter was confusing on its face to an unsophisticated consumer and therefore in violation of the Act. The court granted summary judgment to McKinney. Cadleway appeals.

In their opinion, Judges Manion (concurring in part and concurring in the judgment), Rovner (concurring in part, dissenting in part), and Sykes reversed and remanded. The Court stated that the purpose of the Act was to protect consumers from deceptive and unfair debt collection practices. It applies only to “debt collectors,” as that term is defined in the Act. The substantive section relevant to McKinney’s complaint is the requirement that a debt collector notify a consumer of her right to dispute the validity of, and receive a verification of, the debt. The Court first addressed Cadleway’s status as a “debt collector.” The majority on that issue (Sykes and Rovner) relied on the language of the Act and the Court’s prior decision in Schlosser to hold that Cadleway was a debt collector. The Court stated that the terms “debt collector” and “creditor” in the Act are mutually exclusive. The determinative factor in deciding which term applies to Cadleway is whether the debt was in default at the time Cadleway acquired it. Since McKinney’s debt was in default, Cadleway was a debt collector. With respect to the notice, the majority on that issue (Sykes and Manion) stated that the Act requires the debt collector to provide an initial communication with certain disclosures to the consumer. The Act requires no particular form but the disclosures must not be confusing to the “unsophisticated consumer.” Normally, the majority noted, the plaintiff would bring forth evidence of confusion. Here, McKinney introduced no extrinsic evidence of confusion. In fact, McKinney testified that she herself was not confused by the notice. The majority conceded that a notice letter could be so clearly confusing on its face that summary judgment could be granted. However, it did not believe that McKinney’s notice was such a case. The Court specifically addressed the balance confirmation request that the district court had found to be confusing. The majority found the notice to be clear. It simply asked McKinney to confirm the amount of the debt or dispute it. The notice complied with the Act. The Court remanded with instructions to enter judgment for Cadleway.

Judge Manion concurred in part and concurred in the judgment. Judge Manion agreed with the Court’s opinion on the validity of the notice letter. He noted that, given the outcome on that issue, the Court need not have resolved the “debt collector” issue. Having done so, however, Judge Manion wrote to express his disagreement with the resolution of that issue. The exclusionary language in the definition of “creditor” and the definition of “debt collector” in the Act refer to a person who collects a debt “for another” or “due another,” respectively. Cadleway was not collecting the debt for another. Cadleway purchased the debt and was collecting it for its own account. Judge Manion conceded that Schlosser held that the person holding the debt was a “debt collector” in similar circumstances. He pointed out, however, that the issue of collecting for another never came up. Judge Manion would not have been found Cadleway to be a “debt collector.”

Judge Rovner also wrote separately, concurring in part and dissenting in part. Judge Rovner concurred with the majority’s resolution of the “debt collector” issue without additional comment. She disagreed with the resolution of the validity of the notice letter, however. Judge Rovner found the letter “clearly confusing” on its face. She focused solely on the balance confirmation request section. Judge Rovner found the paragraph confusing, particularly to a consumer who may believe she owes something but has no records or other way of computing a different amount. The letter implies that the confirmation is obligatory, and also implies that failure to do so will damage one’s credit rating. Under the terms of the Act, the creditor can simply respond that she disputes the debt collector’s proffered total. Judge Rovner found the letter different from, and at least to some degree contrary to, the terms of the Act and therefore a violation of the Act.

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CHOOSE LIFE ILLINOIS, INC. v. WHITE (November 7, 2008)

The State of Illinois offers a wide array of license plates that, in addition to an identifying combination of numbers and letters, contain a message or symbol. A vehicle owner can, for example, purchase plates that identify her alma mater, favorite charity, civic organization, or social cause. The Illinois legislature, with irrelevant exceptions, has authorized each specialty plate by statute. Some part of the proceeds from the sale of the plates typically goes to the organization whose message appears on the plate. Choose Life, Inc. (“CLI”) is a not-for-profit company. Its mission is to promote adoptions. CLI collected more than 25,000 signatures from prospective purchasers of a plate bearing the words “Choose Life.” It applied to the Secretary of State (the “Secretary”) for the issuance of the plate. When told by the Secretary that he would not issue a plate without authorizing legislation from the legislature, CLI embarked on a several-year-long unsuccessful campaign to get the legislature to authorize the plate. CLI brought suit against the Secretary alleging a violation of its First Amendment free-speech rights. The court below held that the Secretary did not need legislation, that the program created a private speech forum, and the Secretary’s refusal to issue the “Choose Life” plate was unlawful viewpoint discrimination. The court granted summary judgment to CLI and ordered the Secretary to issue the plates. The Secretary appeals. Pending appeal, the legislature amended the statute to explicitly require legislative approval before a specialty plate could be issued.

In their opinion, Judges Manion (concurring), Evans, and Sykes reversed and remanded. The Court first cursorily dealt with several preliminary issues. In a footnote, the Court recognized a split in the circuits over jurisdiction of specialty license plate cases on both standing and Tax Injunction Act bases. The Court found sufficient allegations of injury to support standing and sided with those circuits that held the Tax Injunction Act did not apply. In another footnote, it dismissed CLI’s argument that the program was facially unconstitutional. The Court held that a legislature need not – indeed, cannot – adopt standards that would control future legislatures. Lastly, the Court held that it would apply the amended statute. Particularly when a party seeks only prospective relief, a court will apply the law as it exists at the time of the appeal.

The Court also recognized a split in the circuits on the next step of its analysis – whether the speech is government speech, private speech, or a hybrid. It noted the Fourth Circuit’s Sons of Confederate Veterans and Rose cases in which that court held that specialty plates gave rise to private or a mixture of private and government speech. That court relied mostly on the facts that the state exercised little editorial control and the vehicle owners were the real speakers. The Court contrasted the Fourth Circuit cases to the later Sixth Circuit decision in Bredesen and the Ninth Circuit decision in Stanton. Relying on an intervening Supreme Court decision in a different speech context and Tennessee’s “total government control” over the design and message of the specialty plate, the Sixth Circuit held that the speech was government speech. The Ninth Circuit rejected the Sixth Circuit’s approach and its reading of the Supreme Court case. It agreed with the Fourth Circuit and held that specialty license plates are not government speech, but must be treated and analyzed as private speech. The Court believed the Fourth and Ninth Circuit approach to be the better one and adopted it. Although the state has approved the message, the most obvious speakers are the vehicle owners who choose to display it.

Having identified the speech as private, the Court proceeded to a forum analysis. Speech restrictions in a traditional or designated public forum come under strict scrutiny. Restrictions on speech in non-public fora, on the other hand, must merely avoid discriminating against certain viewpoints and “be reasonable in light of the forum’s purpose.” The Court concluded that license plates are neither traditional nor designated public fora. They are principally used to identify vehicles and serve only as expressions of ideas in a very limited context. They should be judged as speech in a non-public forum. Here, Illinois excluded all specialty plates on the subject of abortion. The Court held that this was not a discrimination based on viewpoint, but one based on content, and thus permissible. Finally, the Court had “no trouble” finding the restriction reasonable. Even though not government speech, the message on a license plate is closely associated with the state. The Court found it reasonable for a state to decide to maintain a neutral position on a subject like abortion.

Judge Manion concurred in order to raise three points. First, he took issue with the basis for the majority’s conclusion that Illinois entirely excluded the subject of abortion from its program. The only decision evident in the record was the state’s decision not to allow the “Choose Life” plate at issue. Second, he disagreed that the message of CLI and the “Choose Life” plate was pro-life. He viewed it as a “broader middle ground” that did not take a position on the legality of abortion but merely supported more adoptions as an alternative to abortion. Third, he noted his belief that a state could approve a “Choose Life” message and reject abortion-related plates and yet remain viewpoint neutral.
 

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BUSINESS SYSTEMS ENGINEERING, INC. v INTERNATIONAL BUSINESS MACHINES CORP. (November 10, 2008)

International Business Machines Corp. (“IBM”) contracted with the Chicago Transit Authority (“CTA”) to install a new computer system. The CTA conditioned IBM’s contract on IBM’s use of “disadvantaged business enterprises” as subcontractors to complete at least 30% of the dollar value of the contract. IBM entered into an agreement with Business Systems Engineering, Inc. (“BSE”) under which BSE would be one of those subcontractors. IBM and BSE first entered into a contract with standard terms and conditions that would generally govern their relationship. The contract described the procedures whereby IBM would identify tasks to be done and authorize BSE to perform those tasks. It specifically limited IBM’s obligation to authorized projects. IBM also was required to submit a schedule to the CTA that described BSE’s involvement in the project. IBM's final schedule listed BSE as being “prepared to provide” $3,624,550 in services. It also stated that IBM and BSE would enter into a formal contract for the work. During the course of the project, IBM “advertised” its needs to one or more of the approved subcontractors. When a subcontractor presented a suitable candidate to perform the work, IBM followed the procedure set forth in the standard terms and conditions by presenting a statement of work and work authorization. These documents described the task and the effort required, described the condition under which the project would be considered completed, and authorized payment for the task. IBM authorized statements of work for BSE totaling approximately $2.2 million. BSE filed suit alleging that IBM breached its contract with BSE by not paying the full $3.6 million listed in the final schedule. The district court dismissed on the ground that the schedule was not binding, but merely a document describing the parties’ anticipated future contracts. BSE amended its complaint by alleging that other documents, in addition to the contract and schedule, “evidence[d] the written agreement.” The court denied IBM’s renewed motion to dismiss but later granted summary judgment to IBM. It found no written contract for $3.6 million, holding that the collection of documents submitted by BSE were too vague and incomplete to establish a binding contract. The court also rejected BSE’s oral contract argument. BSE appeals.

In their opinion, Judges Manion, Wood, and Tinder affirmed. The Court found that the original contract, in conjunction with the work authorizations and purchase orders it contemplated, was the only contractual relationship between the parties. That agreement was clear that IBM was only responsible for services provided in response to statements of work specifically authorized by IBM. The Court rejected BSE’s oral agreement theory as well. The Court noted that the only term of the oral contract alleged by BSE is the $3.6 million price term. For a contract to be enforceable, a court must be able to look at agreed-upon terms to determine the obligations of the parties. The Court found the description of the services to be provided for the $3.6 million in the schedule and proffered e-mail too vague and generic to form the basis of an enforceable agreement.  

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MUHAMMAD v. OLIVER (November 10, 2008)

The Dennis Muhammad Community and Economic Development Corporation (“MDC”) is a Chicago-based minority business enterprise. It entered into a joint venture agreement with CDA Management (“CDAM”). The purpose of the venture was to bid on a contract to install air conditioners in Chicago Housing Authority (“CHA”) buildings. Their bid was successful but the relationship quickly soured. In 2002, MDC sued CDAM and the related non-profit Chicago Dwellings Association (“CDA”). MDC alleged, in a state court action, that the defendants breached the joint venture agreement by not allowing MDC to do the work it had agreed to do. The court granted CDA’s motion to dismiss on the ground that CDA was not a party to the agreement. Later, on MDC’s own motion, the court dismissed MDC’s complaint against CDAM without prejudice. In 2007, MDC brought suit in federal court against CDA, CDAM, and Christine Oliver. Oliver was the CEO of both CDA and CDAM. MDC repeated the same allegations it had made in the earlier state court suit. It added an allegation under § 1981 that the defendants had used MDC as a “minority front” to increase their chances of success on the bid for the CHA contract. The district court dismissed CDA and CDAM on res judicata grounds and dismissed Oliver because she was not a party to the joint venture. MDC appeals.

In their opinion, Judges Cudahy, Posner, and Rovner affirmed. The Court observed that, although the two complaints relied to some extent on different legal theories, they did both arise out of the same facts. When a prior case arising out of the same facts is abandoned after an adverse ruling, as the Court concluded the state court suit was, the judgment generally bars a later suit. When there are multiple defendants, as is here, the bar against one operates as a bar against all, if they arose out of the same facts. The Court found that all three defendants were alleged to be in violation of § 1981 for the identical conduct. The Court concluded that the earlier suit barred the federal complaint against all defendants. The Court also rejected MDC’s argument that there had been a stipulation to reserve all rights upon dismissal. The Court concluded that there was no evidence, or even allegation in the complaint, of such an agreement. Finally, the Court rejected MDC’s claim that the lower court erred by dismissing on res judicata grounds when a) the defendants never raised it and b) it is not one of the FRCP 12(b) defenses that are allowed to be raised by motion . The Court held that the dismissal was proper. The application of res judicata eliminates unnecessary lawsuits. It can be raised by the court on its own motion. Also, when an affirmative defense like res judicata is shown on the face of the complaint, it can be dismissed on motion.

The Court did conclude that the court below erred in dismissing Oliver on the grounds that she was not a party to the joint venture agreement. A claim of tortious interference with contractual rights on account of race does state a cause of action under § 1981. Nevertheless, Oliver is still entitled to dismissal. First, the Court pointed to its prior discussion of res judicata. The dismissal of the state court complaint barred a cause of action against any defendant arising out of the same facts. Oliver’s does. Second, when liability rests on the doctrine of respondeat superior, as it does here, the plaintiff cannot bring an action against the “servant” (Oliver) when judgment has already been entered for the “master” (CDA, CDAM). Third, and most significantly, the Court concluded that the complaint did not actually allege tortious interference on account of race. The Court stated that the allegation that the defendants included MDC to gain a bidding advantage, and then cheated them out of that advantage, did not allege racial discrimination. The Court observed that it was greed, not discrimination, that drove the defendants’ decision. The district court’s result was correct. 

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ATKINS v. CITY OF CHICAGO (November 10, 2008)

William Atkins was a passenger in a car driven by his brother Adam in October, 2003. A Chicago police officer stopped the car and arrested William on a parole violation warrant with his name. William professed his innocence. He continued to insist he was the “wrong man” but never asked to see a lawyer or took any legal action. He was released – thirty seven days later. He brought an action under 42 U.S.C. § 1983 against the arresting officers and prison guards, among others. He alleged that his arrest was unlawful, that he was mistreated in prison, and that the Department of Corrections lacked procedures for identifying cases of mistaken identity. Adam joined in the suit as far as it complained of the arrest. Both Atkins brothers were represented by the same lawyer. In December of 2006, the lawyer filed a document captioned a “Motion to Substitute” that alerted the court to the untimely death of William. The lawyer stated that he was going to open an estate so that William’s wife Brandie could continue the lawsuit. The district court denied the motion. There was no one yet with proper status to substitute. After 90 days, the defendants moved to dismiss on the grounds that no substitution had been made within 90 days of a “suggestion of death.” The court allowed an additional month for a proper substitution. The day before the new deadline, Atkins’ lawyer filed a motion to substitute Mrs. Atkins, but she was still not yet named as his personal representative. The district court dismissed William’s case. An Illinois probate court appointed Mrs. Atkins as personal representative of William’s estate about ten days later. Mrs. Atkins appeals the district court’s dismissal.

In their opinion, Judges Posner, Flaum, and Evans reversed and remanded. The Court rejected Mrs. Atkins' arguments that the delay was excusable and that the suggestion of death did not start the 90-day clock because it was unauthorized. The Court did hold, however, that the suggestion of death did not start the clock because FRCP 25(a) requires service. Although the rule does not specifically identify the non-parties on whom service is required, the Court concluded that it certainly includes the deceased’s successors or personal representatives. Since Mrs. Atkins had the largest stake in maintaining the case, she had to be served. The Court recognized that Mrs. Atkins clearly knew of her husband’s death and it saw no indication that the Motion for Substitution was filed without her knowledge or authorization. Nevertheless, the rule requires service and her knowledge does not excuse the lack of service. The 90-day clock has not started. Mrs. Atkins should be allowed to proceed as plaintiff.

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